The sun., 1908-12-20


question Of constitutional Interpretation
Il ls Inevitable that those Judges whose
character, training and experience have
led them to favor a broad and liberal In.
depreciation of the fundamental Law will
take view In conflict with that enter
tanned by strict constructionists. Presi-
dent ELIOT fails to realize that the
courts are called upon to tale cogni-
zance Of many exceedingly close cases in
which It is extremely difficult to deter
mine which Of two conflicting rules OF
law shall be applied to the facts. In such
cases it is only natural that Judges
should disagree They have done 80 In
England from the earliest times, and
that fact has never been deemed good
reason for criticiaing the English judi
ciary. 1t is not good reason for criti-
cising The courts Of this country.
Finally President ELIOT makes the
remarkable statement that the courts
themselves shave brougiit courts into
contempt by long delays, by reversals
of judgment and by multiplied appeals
from court to court. So far as delays
are concerned there is some foundation
for this critici an, although we believe
that the fault is rather with the system
of procedure prescribed by the Legis-
lature and binding upon the courts than
In the Judges themselves. The asser-
Hon that courts have been brought into
contempt by the reversal of judgments
is preposterous to any one who really
understands the facts. We do not know
how it may be in Massachusetts, Presi-
dent ELoTs own State, but in New
York the reversals by the Court Of APP
peals comprise only about II per cent of
the cases heard by that tribunal. 1t is
to be borne in mind that the sole purpose
in ma ntaining any appellate courts at
all is to correct possible errors to the
prejudice of litigants upon the trial.
The people have assumed in providing,
as they do by the Constitution in every
State, for the establishment and main
tenance OF final court Of review, that
in order to do justice between man and
man it is necessary that some trial
judgments shall be reversed. Who're
the proportion of reversals is as small as
it is in New York and as we believe it
to be in most States we cannot see how
they can have any effect to prejudice the
courts In the eyes of intelligent men.
The last clause in President ELIoT's
arraignment OF the courts holds them
responsible for what he calls multiplied
appeals from court to court" Does he
not know that whatever appeals are per-
mitted are provided for by the Legisla-
ture and not by the courts themselves?
The judiciary has no more to do with the
multiplication of appeals than President
ELIOT himself. As far as this matter is
concerned it was the subject Of careful
consideration in the constitutional con-
vention Of 1894, of which Mr.. JOSEPH H.
CHoATE was president and in which Mr..
ELIHU Roof was chairman of the judi
ciary committee. There it was de-
termined that the interests of the people
would be best promoted by double ap-
peal, first to the Appellate Division of
the Supreme Court, which might pass
upon questions Of fact as well as ques-
tions Of law, and secondly to the Court
OF Appeals in q limited class of cases,
where questions Of law only could be
presented. This system was approved
by the people when they adopted the
present Constitution and has worked
satisfactorily for fourteen years: but
whether 1t has or not, the courts them
selves are in no sense responsible for 1t.
1t was established by the people. and If
they deem it defective it is within their
power to change 1t within two years.
What really injuries the courts is the
disposition Of leading men of so-called
'light and learning like President
ELIOT, who ought to know better. to in
dulge in unjust and unfounded attacks
upon them.