Page images
PDF
EPUB

rights of man operative and enforceable. Otherwise vulgarity will envelop the nation, and we will permanently deserve the reproach now put upon us by the nations of Europe—that in civilization we are on a par with the half-reclaimed Slavs of Russia, and only a trifle higher in the scale than the mongrels who live in perpetual revolution in Central and South America. The difficulty in the way is the fear that the liberty of the press may be restrained by any statute guarding the right of man's privacy. But the press never had any real right to invade proper privacy ; 1 80 a law defining what privacy is and fixing a penalty for its in

vasion would not be any abridgment of the right of publication, ' for the right of improper publication never existed. Then again Americans as individuals must, if they think privacy worth preserving, abandon their disposition to suffer wrong rather than to take the trouble of being disagreeable. In other words, the individual citizen must cultivate to its highest development that confident moral courage which counts no sacrifice too great when made to enforce any atom of his rights.

JOHN GILMER SPEED,

CRIMINAL JURISPRUDENCE, ROMAN AND

ANGLO-SAXON.

BY M. ROMERO, MEXICAN MINISTER TO THE UNITED STATES.

I HAVE often heard, during my official residence in Washington, comparisons made between the Anglo-Saxon and Roman systems of criminal jurisprudence, generally very disparaging to the latter system, and this leads me to believe that our own, which is based on the Roman, is not quite well understood in this country. This, and not a desire to indulge in odious comparisons between the two systems, is my apology for writing a brief article intended to show that our system is not so defective as some believe. I think that in doing this I render a service to the good understanding between the United States and its Southern neighbors.

This subject has always had a great interest for me. Having been educated at home as a lawyer, I have desired to study and practically to compare the various systems of jurisprudence of different countries, believing this to be one of the best ways to understand the philosophy of that science. I regret, however, that the public duties which have devolved upon me during my whole life, and my long absence from home, depriving me of the opportunity of practising law in Mexico, have prevented my becoming better acquainted with all of its provisions and making a specialty of the study of jurisprudence. The same cause has prevented my studying fully the practical workings of the Anglo-Saxon system of jurisprudence, as existing in the United States. It is, therefore, with great reluctance that I approach such a difficult subject, believing, as I do, that I am not fully competent to treat it as thoroughly as I should like.

While I would not attempt to depreciate the Anglo-Saxon system of jurisprudence, I think the Roman system is also entitled to some regard. The most remarkable of the Roman institutions, and the one which we might say survived the downfall of the Roman Empire, and the incursions of the barbarians with their feudal system, was the civil law; it contains all that was best of former ages and peoples. The advancement of old Etruria, the wisdom of Solon and Lycurgus, the principles of the legislation of Minos, and all that was of permanent value to Egypt, Phænicia, Chaldea, and the foremost nations of the ancient times, were incorporated into the laws of the ten tables which were engraved 450 years before Christ; therefrom was developed the wonderful legal system which culminated in the institutes of Justinian in the year 534 of our era, a system which did more than anything else to assimilate to the Roman Republic the many dissimilar nations which became its provinces, and which were held together by the wonderful Roman civil law. The Roman law was really the result of freedom and free intellectual development, carried on during several centuries under the benign influence of Republican institutions. On the other hand, the common law was the natural result of the feudal or military system of the northern barbarians. The foundation, therefore, of the one is justice; the basis of the other is brute force.

It is generally considered that the corner-stone of the AngloSaxon criminal jurisprudence is the system of trial by jury; and yet it appears from recent researches that the jury system was not indigenous to the common law of England, but was borrowed from the Franks.* In fact, the original idea of the jury system appears to have been borrowed from the Roman law.

The advantages of this system have been much enlarged upon by different writers, both in England and America, as well as upon the continent of Europe. I do not care to criticise it, even though it seems to me, at least under existing conditions, to be open to grave objections. I will only remark that, when, eight hundred years ago, England was oppressed by a tyrannical king, the successful efforts of the English barons to wrest from him the Magna Charta, which gave to England no more than was already the common right of all the other nations of Central and Western Europe, enforced a concession which was nevertheless

*"History of English Law before the Time of Edward I." By Sir Frederick Pollock and Frederick William Maitland, Cambridge, 1895, Vol. 1., page 117.

justly regarded as an important step in securing human liberty. Even so, we know that the charter then granted was repeatedly violated by each and all the subsequent kings of England, down to the accession of the Stuarts. The Magna Charta was procured from King John by the barons mainly for themselves, but it inured to the benefit of the Commons, since it secured to them the right to be tried by their peers. Now, however, that the power of the Commons has so greatly overshadowed that of the barons that the two classes are rapidly merging into one, the changed conditions do not warrant any undue laudation of the great Charter. Certainly, in the United States, where all differences of class have disappeared since slavery was abolished, there is no reason to fear oppression of the people by those in authority, since the people themselves by their representatives are in power ; as a consequence, trial by jury of one's peers has no longer the significance which it may be supposed to have had under Magna Charta. The arbitrary power of arrest and detention residing in the sovereign, and against which it was the parpose of Magna Charta to guard, has never existed in the United States, where the power of the President to order the arrest of a civilian exists only when the writ of habeas corpus is suspended in cases of rebellion, invasion, and other great public danger, and in extradition cases as provided in the respective treaties.

While I should not like to express any decided convictions on this subject, I may safely say that the conditions under which the jury system was established or adopted do not prevail at the present time, even in the country of its supposed origin ; it cannot, therefore, have the importance it once had. The insufficiency of this system to punish criminals is made evident, I think, by its practical results which have unfortunately brought about what is commonly called Lynch Law, and by the fact that these in their turn have given riee to a practice which is based upon a defect in existing law, and which therefore comes to be in fact the complement of criminal proceedings under the AngloSaxon system. It is hardly necessary to add that lynch law is highly demoralizing, that it is open to great abuses, and that when the victim is an innocent person it amounts to a grave crime. When a community is satisfied that a crime has been committed, that a particular person is the author of that crime, and that he cannot be punished under the regular proceedings of a common-law trial, they often take the law into their own hands and they administer swift justice in a manner that is often barbarous, but in the only way left to them. In any case the demoralizing effects of lynch law are so great, and I might say 80 shocking, that any system which seems to make such law necessary as a consequence of its own defects, ought to be revised so as to put an end to that terrible practice. Perhaps lynching is not only due to the imperfections of the jury system, but also to the system of procedure, that causes delays in bringing about a trial, and often to the chicane and deficient preparation of the prosecuting officer.

The jury system as applied to criminal cases is undoubtedly more favorable to the accused than to society. That it has faults is evident from the fact that some of the States of this Union, like Maryland, for instance, have enacted statutes allowing the accused to select whether he shall be tried by jury or by a judge, and this notwithstanding the constitutional provision on the subject. I regard that provision as the first step to undermine the jury system.*

But the force of example, and the great credit which ÅngloSaxon institutions have attained in the world on account of their respect for individual rights, have induced some of the American nations of Latin origin to adopt the jury system, and we have done so in Mexico. Señor Mariscal, our present Secretary of State, who lived in the United States from 1863 to 1877, as Secretary of the Legation up to 1867, and afterwards as Minister from Mexico in Washington-and who is an eminent jurist, a thorough student, and a careful observer-made a special study of the jury system in the United States, and when he went home and became Secretary of Justice under President Juarez's administration, he established, in 1869, the jury system in the Federal District of Mexico for criminal cases, changing it somewhat so as to adapt it to the peculiar conditions of the Mexican character. He provided, for instance, that a majority of the eleven jurors

* A report of the Committee of the Judiciary of the House of Representatives (No. 108, Fifty-fourth Congress, First Session), prosented by Mr. Updegraff, of Iowa, on January 22, 1896, which contains several tables compiled by the Department of Justice of homicides perpetrated in the United States of which cognizanco has been taken by the Federal Judicial authorities, and states the number of indictments, convictions, and acquittals, shows (Table No. 2), that in the year 1892, of 29 Judicial Federal Districts the Federal Judicial authorities took cognizance of 112 homicides, out of which came 96 indictments, 24 of the accused being convicted and 37 acquitted, only one execution having taken place.

« PreviousContinue »