The sun. [volume] (New York [N.Y.]) 1916-1920, 1918-08-12
THE DUTY OF THE COURTS.
A Distinguished Jurist Urges the En-.
actment Of the Technical Error Bill.

To THE EDITOR OF THE SuN--Str: The
recent address Of the President rela-
tive to lynchins, rioting and other vio-
attention to one OF the alleged causes
OF these outbreaks
1t In undeniable that west OF the
Ohio River and south of the Potomac
River there Is a somewhat widespread
feeling Of dissatisfaction with the dis
position Of the courts, Federal and State.
to adhere to those technical rules of
evidence and practice which In the
Northern and Eastern States are be-
coming obsdasbe BY statutory enactment
and the bSe1Ger Views of the bench
and bar.
At the meeting OF the American Bar
Association at Cleveland this month will
como up for discussion what Is COM
monty called the technical error bill. a
bill designed to aid in the elimination
of the technicalites which to q great
extent obsTuct the administration OF
Justice. For eight years that associa-
tion has endeavored to simplify the pro-
cedure In the Federal courts. and to
expedite tho trial and decision of causes
upon the merits. Many OF the changes
It has recommended have been adopted.
Ono fundamental and important change
embodied in this bill Congress has failed
to enact. The bill provides that in all
cases:
civil or criminal, the court shall give
judgment after an examination of the
entire record before the court. without re-
gard to technical errors or defects, or to
exceptions which do not ahpect the rights
Of the parties.
1t was introduced In the Senate by
Senator Walsh of Montana on April 4.
1917. and Is Senate bill IS. In a SIM
liar form It has passed the House OF
Representatives in three successive Con-
crosses. but It has been impossible for
the association to bring It to a vote in
the Senate. although II has been twice
favorably reported by the judiciary
Committee Of that body. Whenever II
has come up for a hearing some sena-
tor has requested an adjournment OF
its consideration. The courtesy of the
Senate prevailed and the vote was post
poned. II this practice continues the
vote will be deferred to the Greek
kalenda
A similar provision to that contained
In the bill has been incorporated by the
Supreme Court OF the United States in
its new equity rules. 1t has been
adopted in many States, in all OF WHICH
II has worked well and greatly facill-
tated the disposition OF cases upon the
merits. Doubtless all the Federal courts
would have felt free to conform their
practice TO this rule were 1t not for
the statute which requires them to
adapt their practice in common law
cases to that OF the State court in the
district In which they are situated.
Some Of the Western and Southern
courts are meticulously technical in
their rulings. and the Federal courts
In those districts feel constrained to
follow the State practice.
In our profession too many OF US
readily discard the advice Of Qu!ntilian
and, adopting the views Of Lord Brough-
am. take advantage of all technical ob-
tections which ingenuity can suggest. and
thus the cause Of justice too frequently
~ defeated. 1t has been urged, there
fore. that when a man known to be
guilty of a gross violation Of the GRIM
inal law Is thus set free the natural
Indignation which is aroused sometimes
leads the hot headed. Ill advised and
turbulent people Of the neighborhood TO
lynch the offender. Nor are the lynchers
always confined to the turbulent ele-
ment OF the population. Especially I'M
portant in this time OF war Is the en-
actment Of this bill. Many persons are
indicted in the Federal courts for Of
fences against the Government. many
civil suits are brought involving impor-
tant questions Of fact and law to which
the war has given rise. and It is OF
the greatest consequence that all these
questions should be promptly decided
upon the merits. and that neither trab
tors. spies. swindlers nor conspirators
should escape Justice on purely techni-
cal grounds, A. T. CLEARWATER.
KINGSTON, August 10.