Page images

of, and finally to decide the case, either in his favor or against him, the decision always coming for revision to our Supreme Court.

Some American citizens who are tried in Spanish-American countries expect that the proceedings there will be conducted in accordance with the legislation of their own country, and, when they find it otherwise, they complain bitterly, considering the Latin proceedings as inquisitorial, outrageous, and even barbarous; and complaining that they are not tried under the laws in force in this country, as if the legislation of the United States should extend to foreign countries. My experience has shown me that this is sometimes the canse of serious difficulties and misunderstandings between the United States and soine of the SpanishAmerican republics. *

I often hear the complaint, too, that under the Roman syg. tem the trial proceeds slowly, and it is asserted that criminal trials in the United States terminate more speedily. I am not prepared to say under which of the two systems of criminal procedure the trial is sooner brought to an end. When the trial actually begins it may take a shorter time in the United States, because, once begun, it cannot be interrupted. It often happens, however, that a long time elapses before a case is brought to trial ; and this time is longer when a new trial is granted. It should be borne in mind that most of the courts in this country hold sessions but for a few weeks or months at a time,and that only during these

! Is an instance of the kind of charges made against Mexico through the press by irresponsible parties, I will mention a case which recently occurred. A telegram dated at Omaha, Neb., on November 23, 1895, and published broadcast by the papers of this country, staled that Col. W. A. Paxton, of that city, had received a letter from Mac Stewart, an old employee of his, who was under sentence of death at Parral, Chihuahua. Mexico. Por shooting a policeman who was trying to kill him for a trivial offence, and stated that Stewart desired to be placed in a court where he would be allowed to plead sell-defence, which he protended was not permitted under the Mexican laws. What has already been said about the Mexican criminal jurisprudence is enough to show how entirely unfounded such a statement was.

Whenever I notice any complaint of this character in the newspapers, it is my custom to communicate the same to the Mexican Government and to request an official investigation of the case, so that I may rectify the statement, if it should prove to be incorrect, or remedy the wrong before it assumes a serious aspect, if in fact there should be any real cause for complaint. In due course I generally receive an official statement wbich is almost always at great variance with tho complaint. In this particular case, the facts in it turned out to be that Mac Stew rt abused a policeman who was unarmed, and, following him to the post-office, at Parral, fired upon him without the slightest cause, killing him instantly ; that, not satisfied with this, he killed the policeman's horse, and then fired upon the Chiet of Police who arrested him. It further appeared that this was his second offence of this character, as he had killed before in Mexico a man named Rogere, a United States citizen. In the case of Roxers, Mac Stawart was acquitted, and a pod the trial for the murder of the policeman he was allowed to plead self-defence, but failed utterly to establish it, as all the witnesses oramiood, including an American oitizen by the name of Davis, a friend of Mac Stewart, testined that there had boen no provocation on the part of the policoman, and that the accused had committed a wiful and wanton murder.-M. R.

sessions do they hear cases. In Latin-American countries, on the other hand, the courts are open and working all the year round. Morover, under the common law system the whole of the trial takes place before the jury, so that the exclusive attention of the court is necessarily devoted to that case. Only one case, therefore, can be tried at a time. In Latin-American countries a judge may try several cases concurrently, because, even where the jury system has been adopted, as it has in Mexico, a great portion of the proceedings takes place before the judge without the jury. As a consequence of this, trials in this country, by reason of the crowded condition of the dockets, are often delayed for months at a time, while in the Latin countries trials begin as soon as the prisoners are arrested.

I often hear in this country great complaints made against the Mexican prisons, which are said to be uncomfortable and sometimes considered almost filthy. It is a fact that some prisons in Mexico are in a very poor condition; that, however, is a result of the limited resources of the country. A poor country cannot afford to build magnificent prisons, yet notwithstanding that we have to contend with want of means, we are building fine penitentiaries in the City of Mexico and in the capitals of some of our States; prisons which may be advantageously compared with any to be found in this country.

Prisons cannot be as comfortable as palaces or hotels; and even in this country, with all its wealth, advancement and prosperity, prisons are sometimes very objectionable. If we had two sets of prisons in Mexico-one for Mexican citizens and the other for foreigners—and if the former were more comfortable than the latter, the citizens of this country would have reason to complain, but if we treat them on an equal footing with our own citizens, and if we give them the best we can—that is, if we keep them in the same building, provide the same food and extend to them the same conditions that we do to our own citizens-I fail to see how there can be any cause for complaint.

It should not be difficult to see which system of criminal jurisprudence is, on the whole, best calculated to do justice by ascertaining the real facts of the case, whether by a judge of long experience and proficiency in his profession, with no personal interest in the cases tried before him, or by a jury composed of men who have no experience in criminal jurisprudence. If the judge may

sometimes be derelict in his duties, so also may the jury occasionally be controlled by their emotions. If the judge fail to do his duty, his failure will be corrected by an appellate court, as all cases must be reviewed upon appeal. For the improper verdict of a jury there is often no adequate remedy. The AngloSaxon criminal jurisprudence is founded upon the principle that it is better to let one hundred criminals go unpunished rather than to inflict that punishment upon a single innocent person. The Latin system, while it accepts that humanitarian principle, is nevertheless better calculated to prevent the escape of a criminal unpunished.

There is a provision in our Constitution which is often misunderstood and which has given rise to the idea that we sometimes administer justice in too speedy a manner and with a complete disregard of the forms of law established for the protection of human life. Our Constitution commences with a declaration of the rights of man, taken in a great measure from the declaration of the French National Assembly during the Revolution, which in its turn was, in a great measure, taken from the Declaration of Independence of the United States. These rights secure the most ample liberty and immunity both to the person and property of the inhabitants of the country. While our Constitution was being formed, however, it was contended that on extraordinary occasions, as in case of war, or other serious danger to society, the rights guaranteed by the Constitution might stand very much in the way of inflicting needed and speedy punishment. To obviate this, the Constitution itself, in Article XXIX., provides that the rights of man, as guaranteed by that instrument, excepting such as secure his life, may be suspended for a short time, in certain emergencies, provided that suspension be upon the President's initiative and with the consent of Congress; and provided further that the suspension shall be applicable to a class ; that it shall not apply to an individual; and that it shall be for a brief period. If it should be found for instance that the crime of derailing railway cars, either for the purpose of robbing them or for any other anlawful end, should become frequent, and if it should be found that the emergency called for extraordinary measures, the President would ask Congress for the suspension of the personal guarantees of this class of criminals for a limited period, say six

months; and if Congress should sanction this suspension, a summary criminal proceeding would be established, for the purpose of inflicting punishment without delay, thereby deterring others who might be disposed to commit the same crime. At the end of the period fixed, public confidence would have been restored, and there being no further need for the unusual measures adopted, the suspension of constitutional guarantees would come to an end. It will be seen that our constitution provides a speedy way for punishing criminals in extraordinary cases, without the unfortunate need which the condition of things has sometimes made necessary in this country-especially in California in former years-of establishing a committee of public safety to preserve order, a proceeding which meant that the people took the law into their own hands, acting without regard to the usual legal forms and oftentimes in a manner closely resembling Lynch Law.

When we pass from criminal to civil jurisprudence, the superiority of the Roman law is incontrovertible, and a few remarks on that subject will be pertinent in this case.*

One of the most conclusive proofs that the Roman law is not inferior to the English common law is that England, the very country where it had its birth, was obliged to establish two systems of civil jurisprudence, one the Common Law proper, which was administered through the older and ordinary courts, and the

* In an admirable address that Judge Martin F. Morris, Associate Justice of the Court of Appeals of the District of Columbia and Professor of Constitutional and International Law, Admiralty, and Comparative Jurisprudence, in the Law School of Georgetown University, District of Columbia, delivered before the graduating class in 1891, he said, referring to the subject of the common law and the Roman law (pages 30 and 31) the following:

"But, however it be in criminal cases, I have no besitation whatever, after a long experience of it, to assert that, as a mode of determination of civil causes and private controversies, the genius of man has never yet devised anything more absurd than the organized ignorance and besotted prejudices of twelve men in a jury box. The man who has a good case is always desirous to havo it taken away from the determination of a jury and to submit it, to the arbitrament of a court alone-to the arbitrament, in fact, of any one other than the twelve men in tho jury box; while the disbonest litigant, the unprincipled lawyer, and the speculating knave, are ever loud in their demands for trial by jury; for only upon the prejudices, the passions, the ignorance, or the corruption of juries can they baso their hopes of success. This is the experience of every man who has had to do with courts of law, and it spoaks volumes to the discredit

of the system. Then tho divided responsibility of court and jury, the necessity of immediate decision by the former of questions of law upon which appellate tribunals otten deliberate for weeks and months without coming to a satisfactory conclusion, the consequent pecessity

of repeated trials before a final decision is reached-all contribute to render the system exceedingly unsatisfactory in its methods, no less than its results.

Wo think we are fully justified in the assertion that there is no ono featuro of our jurisprudence that tends more in practice to a denial of justice than the system of trial by jury. It may, perhaps, have

done well

enough in a barbarous age, when judges may not have been more intelligent than juries, and may havo been, in fact, the tools and minions of despotic power; but in this age and country it is nothing more than a relic of feudal barbarism,"

other the Roman Law, administered through the chancery or equity courts. Law is supposed to be the perfection of justice and the best expression of human reason; it should then embrace not only equity, but the very essence of justice itself. If, therefore, a particular law or system of law fails to include equity, that law or system cannot be perfection. The very idea that equity can be a thing outside and different from law seems contradictory and absurd.

Although the chancery or equity courts were in the beginning established in England only for the purpose of trying such cases as could not be reached by the common law, or in which the processes of the common law courts afforded no adequate remedy, the Roman law came finally to be in reality the law which was intended to fill the gaps and remedy the defects of the common law. The common law courts were always very jealous of the equity courts ; but after the decision of King James I., in the controversy betweenSir Edward Coke, on the one side, representing the common law courts, and Lord Ellesmere, the Lord Chancellor, and Lord Bacon, on the other, representing the equity, or Roman law courts-it was established that a man might have recourse to a court of equity in many cases after his rights had been adjudicated at the common law courts. The establishment of this principle was equivalent in fact, though not in form, to giving an appeal from the courts of common law to the courts of equity, thus recognizing the saperiority of the Roman over the common law system. It is true that the equity courts could not reverse the decision of the common law courts, but if in the trial of the same case an equity court reached an opposite or different conclusion, the judgment of the common law court could not be executed, and became, therefore, in fact nullified.

I am well aware that a common law lawyer will not admit that the equity courts can reverse the judgment of the common law courts, because legally and technically that cannot be done; but as a matter of fact such is the practical consequence of the system as it now exists. If a common law court, for instance, decides a case against the defendant, and if after that decision the defendant finds proofs to establish his contentions, he may still go to the equity court, present his proofs and ask that the plaintiff be enjoined from executing the judgment against

« PreviousContinue »