The sun., 1908-12-20
President Eliot and the Courts.


President Eliot and the Courts.
We regret to see that President ELIOT
Of Harvard University has become a
participant in the unjust assaults upon
the courts which have become too COM
mon throughout the country.
In the address which he delivered be-
fore the Civic Forum in this city few
days ago we find this statement:
Courts themselves have eontradIctod each
other. have given decisions on technical grounds
without expressing an opinion on the merits ri
the case. have divided as evenly as possible on
important questions. and have brought courts into
contempt by long delays, by re,eraais Of trldg
ment and by multiplied appeals from court to
court"
1t is interesting to inquire how much
real foundation there is for this attack.
President ELIoT's first charge is that
the courts have contradicted each other.
1t might possibly occur to him upon a
little reflection that perfect and entire
harmony of view in the disposition Of
litigated questions which give rise to
the bitterest controversies between man
and man cannot reasonably be expected
until the arrival Of the millennium. If
he were conversant with the annals Of
jurisprudence he would find more occa-
sion for surprise in the uniformity Of
decision which prevails in the courts
throughout the Union than occasion
to oriticise their diversity. There are
forty-six States, each having its court
OF general original jurisdiction In which
cases are tried and each having it's court
Of last resort in which the judgments of
the trial courts may finally be reviewed.
The decisions Of these appellate. tribu-
mails are fully reported and are epito-
mized from time to time In general di-
gests for the benefit Of the legal profess
sion. An examination OF these digests
or Of any meritorious encyclopedia of
American law will show that the judg-
ments Of the courts of last resort are gen.
orally harmonious In their construction,
Interpretation and application Of the
law. There are branches Of the law of
course in which the tribunals OF one
State refuse to adopt the doctrines sane
toned in others, but these cases of con-
Trajectory decisions form the exception
and not the rule. While, therefore, it
may be literally true that courts have
contradicted each other as President
ELIOT says, the idea which he conveys
that this is a common occurrence Is in
correct as matter Of fact. On the con-
trary we assert with confidence that
there Is no branch OF human endeavor
having to deal with the conflicting emo
tions and opinions Of men in which a
greater degree of harmony is attained
than in the development Of jurispru-
dence in America.
The next charge made by President
ELIOT is that the courts have given de-
cisions on technical grounds without
expressing an opinion on the merits of
the case. Wherever this has happened
the courts have simply discharged their
duty. 1t is prevailing error to as
sumo that a case is decided unjustly
simply because 1t may have been de-
cided on purely technical grounds.
For example, a statute Of this State
enacted by the representatives Of the
people in the Legislature provides that
certain suits shall not be maintained
against the city OF New York unless a
prescribed notice has been given to the
municipal authorities. IL an appellate
tribunal decides against plaintiff on
the ground that he has failed to give
this notice the decision is based upon
a purely technical ground; and yet the
court may be bound so to decide. II in
rendering judgment to that effect it
expresses an opinion on the merits of
the case it is not only going further
than is necessary, but such an express
sion OF opinion may prejudice the plain
tiff in subsequent action on his claim
it 1t should happen not to be outlawed
and he is able to serve the required
notice and bring another suit. Many
other illustrations might be given Of
the wisdom of refusing to discuss the
merits Of case where it has become the
dutyi Of the court to decide an appeal
upon technical grounds only.
President ELIOT next finds fault be-
ausesometimes the courts have divided
as evenly as possible upon important
questions. What there is blameworthy
about this we are utterly unable to per-
ceive. Able men always have differed
and always will differ in regard to mat
ters OF opinion. Where case involves