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THE ANGLO-SAXON AND ROMAN

SYSTEMS OF

CRIMINAL JURISPRUDENCE.

The statements which preface the preceding chapter, under the head of "Historical Notes on Mexico," are also applicable to the present paper, as it is the second of the articles based on my remarks delivered at Saratoga on the 5th of September, 1895.

The subject to which this paper refers I consider of special importance, because my experience has shown me that a want of knowledge of the criminal jurisprudence of Mexico has often been the cause of irritation and misunderstanding in this country, as American citizens, when arrested in Mexico for any crime committed there, have frequently complained bitterly of Mexican criminal legislation, considering it unfair, unjust, and even inquisitorial, and alleging that the rights granted the accused by all civilized countries were denied them in Mexico. I believed it would further a good understanding between the United States and its Southern neighbors to show how mistaken these conclusions were, and I have no doubt that a clear statement of the case would prevent in the future the misunderstandings and dangers arising from such mistakes. This result will also affect most of the Latin-American States, as they all have similar criminal jurisprudence, derived from the Roman law. I, therefore, revised my remarks on the subject and put them in the shape of an article, which was published in the North American Review, for July, 1896, and later on in the Green Bag, of Boston, for October of the same year.

Before publishing this article I submitted it to various distinguished lawyers of this country, some of whom had occupied high official positions, because I feared that I might have fallen into some error in treating of a subject with which I was not entirely familiar, and I was, of course, very anxious to avoid any inaccuracy. I received different opinions-most of them highly favorable to the jury system; but the one that differs most from mine and contains the strongest reasons against my views, as expressed in my paper, comes from a very able gentleman from New York, the editor of one of the leading newspapers of that city, and as my purpose is to present both sides of the question, I have concluded to insert that letter, for whose publication I have been authorized by the author.

SYSTEMS

THE ANGLO-SAXON AND ROMAN CRIMINAL JURISPRUDENCE.1

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and this leads me to believe that our own, Roman, is not quite well understood in this country. comparisons made between the Anglo-Saxon and Roman I have often heard, during my official residence in Washingtar criminal jurisprudence, generally very disparaging to the latter system,

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ing me of the opportunity of practicing law in Mexico, the incursions of the barbarians with their feudal system, Saxon system of jurisprudence, as existing in the United States. I regret, however, that the public duties which have devolved a service to the good understanding between the United States and its desire to indulge in odious comparisons between the two systems, is my apology for writing a brief paper intended to show that our system as one of the best ways to understand the philosophy of that science. to compare the various systems of jurisprudence of different countries, educated at home as a lawyer, I have desired to study and practically York City for July, 1896, and with some additions in the Green Bag, of Boston, for me during my whole life, and my long absence from home, deprivThis article was originally published by the North American Review of New which we might say survived the downfall of the Roman Empire, and therefore with great reluctance that I approach such a difficult subject, While I would not attempt to depreciate the Anglo-Saxon system of has prevented my studying fully the practical workings of the Anglojurisprudence, I think the Roman system is also entitled to some reThe most remarkable of the Roman institutions, and the one The present edition has been revised and somewhat vented my becoming better acquainted with all its provisions and my

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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, Phoenicia, Chaldea, and the foremost nations of the ancient times, were incorporated into the laws of the ten tables, which were engraved four hundred and fifty years before Christ; and 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 force.

The Fury System.—It is generally considered that the corner-stone of the Anglo-Saxon 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 various 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, were commendable, yet the concession was such that it was justly regarded as a most 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. Cer

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History of English Law before the Time of Edward I., by Sir Frederick Pollock and Frederick William Maitland, Cambridge, 1895, vol. i., p. 117.

tainly, 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 might have had under Magna Charta. The arbitrary power of arrest and detention residing in the sovereign, and against which it was the purpose 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 jury system, as applied to criminal cases, is undoubtedly more favorable to the accused than to society."

Up to this century the English people may be said to have regarded those of its members who were criminally prosecuted as in danger of becoming the victims of despotic power. It is proper to consider whether the changed relations of the people to the government have been accompanied with proper modifications of the common-law procedure. The criminal law of England is not less severe than that of the United States, but capital crimes and executions are far less frequent there than here. Yet in England there have been hardly any criminal appeals. Conviction before the trial court has been final, while in the United States there are appeals upon appeals, with a final resort to a writ of habeas corpus to the Supreme Court of the United States. In the State of New Jersey the Court of Errors and Appeals may be compelled to examine all the proceedings in a capital case, including the evidence, even if no exception has been taken, and although it does not have the prisoner before it or hear the witnesses or hear them testify, it must try the case to discover manifest errors like a court of equity balancing affidavits.

I From data contained in a report from the Committee on the Judiciary of the House of Representatives (No. 108, 54th Congress, 1st Session), presented by Mr. Thomas 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 cognizance was taken by the Federal judicial authorities, stating the number of indictments, convictions, and acquittals, appears (Table No. 2) that in the year 1892, from twenty-nine judicial Federal districts, the Federal judicial authorities took cognizance of 112 homicides, of which 96 were indicted, 24 of the accused being convicted, 37 acquitted, and only one execution having taken place.

On psychological grounds it is well established that punishment, to be efficacious as a deterrent, must be prompt.' Some legislatures of the United States have gone so far as to provide that no one shall be hanged for a year after his conviction. In almost all of them a murderer may be sure of a year, perhaps several years, of life, after his arrest. He knows, the friends and family of the victim know, the

'Since this paper was written, the New York Journal of November 28, 1897, published the opinion of the Hon. Frederick R. Coudert, one of the most eminent lawyers of the city of New York, giving his views on the imperfections of criminal trials in the United States and England under the common-law system, as compared with the system prevailing in Continental Europe under the Roman system, from which I insert the following extract:

"I regard the present methods of our criminal law about as Jerry Bentham, the eminent English jurist, regarded the English criminal law, which, by the way, is much like the criminal law of this country. Bentham said: 'The English law of evidence is admirably adapted to the exclusion of truth.'

"There is no doubt to my mind that the methods used by criminal justices in getting jurors is deficient in many respects. One of the greatest deficiencies is that it excludes men from juries who read newspapers and have any knowledge of the case. Then, under the present system lawyers are allowed to wrangle and bring out all sorts of unimportant evidence. This only causes delays, and these delays are unfair to the person on trial, often keeping an innocent man in prison for months, and even years, before he gets a fair trial. In foreign countries, with the exception of England, the court will not listen to any evidence not important to the case. Lawyers are made to question the person on trial not hurriedly, but sufficiently fast to keep the case from dragging. If any question comes up which causes a wrangle, the justice before whom the case is being tried takes the witness in hand and questions him impartially, and to the point. By this practice the Continental methods reach rapid results, the guilty are punished more quickly, and the innocent do not suffer as they do under the system in vogue in America and England. When trials are delayed for months, and even years, it is a very costly thing to the State. Whenever there is a great criminal trial it takes weeks to get the jurors, and even after the jury box is filled the trial drags on, while lawyers are allowed to fight between themselves.

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"One of the greatest hindrances to rapid trials in criminal cases is the habeas corpus proceedings, which are allowed in the majority of instances. The habeas corpus was the outgrowth of the clash between the classes in England, and was intended to protect the persons not high in favor with the crown. In those days the crown practically owned every judge and jurist, and a person who had caused offence to the king could be imprisoned and held as long as he lived, without any recourse. Crowns do not own judges and jurists in these civilized days, and every man can feel certain that he will get a fair and impartial trial as soon as he is arrested. Under the present system every judge in the State can be gone to for habeas corpus proceedings, and when they are granted they only serve to delay trial and hasty conviction or acquittal. Habeas corpus proceedings give an impetus to crime, and should be done away with. The Supreme Court, in its last three or four decisions regarding habeas corpus proceedings, has decided that the writs were not an appeal from the judge's decision, and were only to be allowed in rare cases.

"Do away with habeas corpus writs entirely and criminals will be brought much more quickly to trial."

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