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him; and in such cases the equity court has jurisdiction to grant such an application. In a case like the one cited the equity court does not pretend technically to revise or reverse the judgment of the common law court; but by granting the injunction against its execution it practically effects its rerersal ; and such a system therefore actually produces the same result as though the equity court were a court of appeals.
The American people, with their practical common sense, have remedied a great many of the defects of the common law practice in civil cases, changing it gradually to such an extent that now it can hardly be said that the English common law system, as expounded by Blackstone, is in force in the United States. It is still called the common law, but for all practical purposes it is almost superseded by the Roman law.
Even as regards the jury system, and notwithstanding the fact that this has been considered the corner-stone of common law criminal jurisprudence, some States of this country have, as Iunderstand, changed the foundation of that system by not requiring a unanimous verdict for the conviction of the accused.
The very country which established, and for years maintained, the common law has practically superseded it by the Roman jurisprudence. In one of the acts of the British Parliament passed in the years of 1873, 1874 and 1875 the whole system of English Courts of Justice was remodelled after the systems prevailing in countries which had adopted the Roman law, and it was provided that when the rules of common law and those of equity come into conflict, the latter shall prevail. Such a provision is almost equivalent to repealing the common law itself.
The literal application of the common law, is I think, another of its disadvantages. A Common Law judge is bound to apply the law in its literal meaning, even in case that may involve a denial of justice, while a Roman law judge applies the letter of the law to the case where it fits exactly, and has some discretion to be guided by the meaning and object of its statute, rather than by its literal words when its words conflict with justice or equity.
American lawyers, in arguing cases, and judges in deciding them according to the practice under the common law system, are controlled almost entirely by precedents, and while considerations of justice and equity are sometimes indulged in,
they have legally but little weight. Such a system is very unsatisfactory, because, each case being different from every other, the decisions in the one cannot be made to exactly fit the other. Moreover, it entails a herculean task upon the lawyers and judges, making it obligatory for them to search for precedents not only in the courts of their own country, but even-in those of England. With the Justices of the Supreme Court of the United States, this work is still more arduous, since they must examine and be familiar with not only all cases decided by the various Federal courts, but by all the courts of the fortyfive different commonwealths which form this Union, each with its own distinct legislation, and with the Roman law also, as the State of Louisiana has adopted it, entailing besides the need of keeping a very large library. Doubtless, no public functionaries under the Federal Government have more arduous work imposed upon them. The day is not long enough to permit its completion, and I have personally known more than one who have broken down under that tremendous strain.
This condition of things shows that the common law is still in its rude and primary state, viz., still setting precedents. After sufficient precedents have been collected to form a code, they should be codified if the United States shall not previously have accepted in its entirety the Roman law. The Roman law had to pass through these different stages, and it passed them all, until it assumed the shape in which it is at present. It has been fully digested, and its principles formulated into simple rules, while the common law is yet in process of development, still passing through the primary stages.
I hope that these few observations, which have been written without preparation, will assist in dispelling the misapprehension which exists in this country regarding the criminal jurisprudence of Spanish-American nations, and in that way contribute to the better understanding between the United States and her sister Republics. A careful study of the Roman system of jurisprudence by Anglo-Saxon judges, lawyers, and statesmen has resulted in the adoption of many features of the Roman law, and a careful and comparative study of both systems would very likely lead to a conclusion in favor of an eclectic one, which would combine the best features of both.
WHY WOMEN SHOULD HAVE THE BALLOT.
BY THE LATE GENERAL JOHN GIBBON, U. 8. A.
I HAVE been seeking for some years a good, sound reason why women should not vote, and I have, after diligent search, found one, and only one. It is because they are women.
There is no other, so far as I have yet been able to discover, which rises above the frivolous. Various so-called reasons have been urged, indeed: women, it is said, are weak, foolish, frivolous, dependent; they can't fight; they have other and more important duties to attend to ; they have all the rights they ought to have now; they are protected by men's votes, and so forth , but the real and only reason is that they are women. There are men, and plenty of them, against whom all the considerations enumerated above, except that of sex, can be urged as reasons why they should not vote ; but they are never urged against them because they are men : that is, they belong to that class which heretofore has had the power to say who shall vote.
Women have life, property, opportunities for pursuit of happiness, to protect just as men have. Why should they not have the same means of guarding these that men have ? The only reason is that they had the bad luck to come into the world as females, and man got “ the drop" on power first.
Protection by proxy will not hold for a moment. In this country no man is willing to admit that his rights can be protected by the vote of another. No such doctrine as that has ever been admitted here, and men would laugh it to scorn even when the man whose right to be protected was a black man just emerging from an ignorant, degraded servitude. So well was the absurdity of such a theory recognized that, for their protection, the right to vote was placed after the war in the hands of persons, many of whom were but little above the brutes, provided always
they were fortunate enough to have come into the world males.
Man, in the aggregate, says in his might that certain classes of persons shall not vote, and specifies non-citizens, paupers, convicts, idiots, and women; and these classes are excepted for the good of society—all except the women. An idiot, even, might see why a pauper and a convict should not vote, and if he is an honest idiot he might have a glimmering as to why he himself should not; but it would puzzle him to tell why a woman should be put in the same class with himself, the pauper, and the convict.
Suffrage, it is said, is not a right. Perhaps it is not; but, then, neither is life, liberty, or the pursuit of happiness—in some places. In this country, however, it was solemnly declared over a century ago that these are amongst the inalienable rights of mankind, bestowed upon them equally by the Creator, and that, to secure them, governments are instituted among men, deriving their just powers from the consent of the governed. No such right had ever been more than dreamed of before that, and we have been ever since striving to make good the assertions of our forefathers. We have succeeded, too, pretty well, considering the difficulties in our path, one of which was a four-years' slaughter of our brothers to force them to acknowledge the truth of the words of our ancestors.
There are some things not yet made exactly straight, and in striving to point out what they are, we are met at the very threshold by two pertinent enquiries : (1) Is woman a "person” ? and (2) Is she governed with her “consent”? It is scarcely worth while to offer any argument on the first question, as probably almost all will acknowledge that she is “a person.' So far as the second is concerned all must accept it as true that she is governed with her consent, just as the other members of the class in which she is placed by man are governed with their consent, namely, the non-citizen, the pauper, the convict, and the idiot.
An eminent divine recently declared that the old maxim that there should be no taxation without representation is utterly inapplicable to this question of woman suffrage ; but he failed to give any reason, good or bad, for his assertion, although he attempted to offer some excuses for it.
Women who are taxed, he urged, are represented by their
relatives, potent influence, by men's sense of justice, chivalry, etc. All of which amounts to this : the paupers, the convicts, the idiots, and the aliens are represented in the same way, leaving out the “chivalry,” which is a very poor representative with a great many people.
All we have to do to set aside this argument of “representation by proxy” is to recall the very many women who have no “relatives,” “influence," "sense of justice,” or “chivalry” to represent them. They have to go without even this poor representation, and thus inequality and injustice are perpetuated. It is gratifying to know that “women's property” is better protected than men's in one State ; but is it true that this protection is better in all States, or as good ? As long as this is not so, just so long are inequality and injustice maintained in violation of our fundamental law.
A woman being “a person" is a citizen of the United States (if born or naturalized in them), by virtue of the amendments which abolished human slavery in this country; and by the same amendments every “citizen ” is entitled to all privileges and immunities under the law and to its equal protection.
If women have progressed towards an approach to the equal protection of the laws, it has been due more to the progress of human affairs in this century than to any thing else ; and it is possible that much of this progress has been due to the influence of women in rectifying a state of affairs which would not originally have existed if women had been represented by their own votes, instead of being represented by man's “chivalry," etc. Representative "chivalry” may do very well for those fortunate enough to possess it, but if all could appeal to it with confidence and security there would no longer be any need for whippingposts as a punishment for wife beating. This progress in public sentiment has wiped from the statute books of some of the States laws which were a disgrace to the age ; and which would never have been there could women have applied in time an ounce of prevention.
Having demonstrated, as I think, the woman's clear right constitutionally to the ballot, it may be well to note some of the evils which, in man's imagination, are going to follow the granting of this right.
To my mind one of the funniest of these apprehensions is the