build a system of railways in Mexico, which then seemed a gigantic undertaking, but
Boston proved equal to the task. The enterprising men of Boston who built the
Santa Fe system were the pioneers of the Mexican railways. They built from May i,
1880, to October i, 1882, the 262 miles of the Sonora road, from Guaymas to Nogales,
where there is a branch to Benson, Arizona, connecting it with their main system.
Although, for reasons unknown to me, that road has not been a financial success, I
feel sure it will be, before long, a very valuable property.
About the same time several men of the Santa Fe system, and many other busi-
ness men of Boston, organized in 1S80 the Mexican Central Railway Company, and
after obtaining a liberal grant from the Mexican Government, built in less than four
years, from the 15th of September, 1880, to the 8th of March, 1884, a road from El
Paso del Norte to the City of Mexico, 1224 miles — a task which seemed then as ven-
turesome as the building of the Pacific road in this country during the Civil War —
to which new lines — they can hardly be called branches — have since been added, con-
necting their system with the Gulf of Mexico at Tampico, which, on account of the
deep water improvements now being carried out, will be one of the principal ports of
Mexico on the gulf, allowing the largest steamers to come into a bar which, before
the v.-ork commenced, only drew eight feet of water, and they have under construction
their line to the Pacific, as well as other important branches, which, when finished,
will make a completed system of 2100 miles.
One little incident will show the difficulties these pushing men had to contend
with. The late Samuel J. Tilden of New York was invited by his friends to invest in
this road. Not knowing much of Mexico, he decided, as a prudent man, before
making the investment to post himself about the condition of the country, and as he
could not go himself to Mexico, he requested his personal friend, the Hon. John
Bigelow, a most competent and worthy man, to take that trip and convey to him his
impressions. Unfortunately, Mr. Bigelow, notv/ithstanding his very high abilities
and qualifications, was unfavorably impressed with tlie country, either because he (hd
not remain there long enough, or because it is, in any case, very difficult for a
foreigner to understand a country with which he is not familiar ; and his report was
adverse to the investment. Mr. Bigelow published in Harper s Magazine, of New
York, for October, 1882, the result of his investigations, and thinking that he had mis-
understood my country, and that his conclusions might be prejudicial to its develop-
ment if I allowed it to go unchallenged, I answered his article. He then very
properly said, and 1 of course acquiesced in it, that between two conflicting opinions
about a future fact, whether investments in Mexican railroads would or would not be
profitable, time alone had to decide. I venture to say that sufficient time has now
elapsed to settle that question, and that although the Mexican Central Railway
securities have had, like those of any other large enterprise, their ups and downs, I
think their holders have every reason to be satisfied with their investment. I sincerely
think they own a very valuable property, whose price would be enhanced with the
lapse of lime, and keep pace with the prosperity of Mexico.
Causes ot tbe /IDejicaix IRcvolutions. 399
The National Railway, another system almost as large as the Central, has also
finished its main line, is already connected with the Gulf of Mexico at Tampico, and is
building a branch to the Pacific, and I consider this line also as a very valuable one.
The originator of the Southern Pacific Railway system has also built, and without
subsidy, a trunk line to Mexico, the International, which is now being extended
towards the Pacific, and which will also prove, I have no doubt, a very valuable property.
These four roads are really extensions into Mexico, and therefore Mexican
feeders, of your large railway system, and they actually make of our two countries,
for commercial purposes, a single territory. But owing to existing barriers to trade,
the international traffic of the Mexican roads has only been about co per cent, of
their total business.
Mexico subsidized for sometime her railways, and it was thought at first that the
subsidies would be merely nominal, as the condition of her finances was sucli that few
imagined that their payment could be effected. But the resources of the country are so
great, that the subsidy was not only paid in yearly instalments as agreed upon, but last
year the whole of it was advanced in cash to all roads willing to receive it in that way.
Let us see now how the building of roads has affected the prosperity of Mexico.
The imports for the fiscal year ending the 30th of June, 1873, were $20,166,012 ; the
exports for the same year, $31,594,005, most of them precious metals ; and the federal
revenue was only $15,739,239. In about fifteen years, of which only six embrace the
railroad era, the foreign trade and revenue of Mexico have increased over one hundred
per centum, as the imports of the fiscal year ending on the 30th of June, 1889, the last
one of which official statistics have been published in Mexico, amounted to $40,624,-
894, the exports for the same year, two thirds being precious metals, to $60,158,423,
and the federal revenue amounted to $32,745,981. The trade of Mexico with the
United States has increased in still larger proportions. In the year ending June 30,
1873, we imported from the United States $5,231,254, and exported to this country
$11,367,859, principally precious metals; while in the last fiscal year of which the
Mexican government has published statistics, our imports from this country amounted
to $22,669,420, and we exported to the United States $43,022,440. We now buy
from you nearly sixty per cent, of our imports, and we sell you over eighty per cent,
of our exports, and this is merely the beginning of a large development of trade
between the two countries, which will assume proportions that can hardly be
anticipated.
But the liuilding of roads in a country is only the beginning of its development.
Mexico has entered into that path, and its results are already perceptible. Fortunately
we have passed, I hope forever, the turbulent period of our revolutions. The causes
which brought them about, namely, the influence of the Church in the destinies of the
country, always exercised against its progress, having now disappeared, their effect
will not be felt any longer, and with the assurance of peace and protection to life and
property, there can be no doubt that large money investments will be made in
Mexico. Since capital from this country, and especially from Boston, has assisted her
in building her roads, it is to be hoped that such assistance will not stop there, but
continue its wholesome work and build manufactories, operate mines, and take up
many other new enterprises mutually profitable. The means of communication already
being established, I hope that commercial development will follow. Two neighboring
republics occupying the main portion, if not the whole, of the North American conti-
nent, which are contiguous for nearly two thousand miles, divided only by an imaginary
line, producing each what the other needs, and connected by several systems of rail-
ways, must before long agree to lessen the present barriers to traffic, and when that is
done the trade between the two will surprise the world. It is my wish that such a
consummation shall not be delayed much longer.
THE ANGLO-SAXON AND ROMAN
SYSTEMS OF
CRIMINAL JURISPRUDENCE.
401
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 deliv-
ered at Saratoga on the 5th of September, 1895.
The subject to which this paper refers I consider of special import-
ance, 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 fre-
quently complained bitterly of Mexican criminal legislation, consider-
ing 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 crim-
inal 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 A?nerican 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 posi-
tions, 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.
403
THE ANGLO-SAXON AND ROMAN SYSTEMS OF
CRIMINAL JURISPRUDENCE/
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 paper 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,
as 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, depriv-
ing me of the opportunity of practicing law in Mexico, have pre-
vented my becoming better acquainted with all its provisions and my
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 re-
gard. 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
' This article was originally published by the North American Revieiv of New
York City for July, 1896, and with some additions in the Green Bag, of Boston, for
October of the same year. The present edition has been revised and somewhat
enlarged.
404
Criminal jurisprudence. 405
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 there-
from 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 J^ury 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 objec-
tions. I will only remark that when, eight hundred years ago, Eng-
land 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 them-
selves, 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 condi-
tions do not warrant any undue laudation of the Great Charter. Cer-
' History of English Law before the Time of Edward I., by Sir Frederick Pollock
an<^ Frederick William Maitland, Camhri(U;e, 1895, vol. i., p. 117.
4o6 (Trtmtnal 3uri5pru^ence.
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 them-
selves 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 pur-
pose 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 pro-
cedure. The criminal law of England is not less severe than that of
the United States, but capital crimes and executions are far less fre-
quent 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, in-
cluding 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.
' From data contained in a report from the Committee on the Judiciary of the
House of Representatives (No. loS, 54th Congress, ist Session), presented by Mr.
Thomas Updegraff of Iowa, on January 22, i8g6, which contains several tables, com-
piled 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 con-
victed, 37 acquitted, and only one execution having taken place.
Criminal Jurisprudence. 407
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 theaii a mur-
derer 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 yournal oi November 28, 1897, pub-
lished 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 sys-
tem 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 nodoubt tomy mindthat the methods used by criminal justices in getting
jurors it 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 un-
important evidence. This only causes delays, and these delays are unfair to the per-
son 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.
"One of the greatest hindrances to rapid trials in criminal cases is the //a3<-aj-
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 prac-
tically 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 sys-
tem 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 proceed-
ings, 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."
4o8 Criminal 3uri5pru&ence.
people at large know, that before that time has passed many chances
of escape may j)resent themselves. The prisoner may break jail.
Material witnesses may die or disappear. Resentment may be softened
by the lapse of time; sympathy for the victim who has passed out of
this world gives place to sympathy for the prisoner who is struggling to
save his life. The longer punishment can be postponed, the greater
the possibility that it may be evaded altogether; the greater the cer-
tainty, we may say, that it will be mitigated and eventually remitted.
Such delays are dangerous, for in cases of atrocious crimes, particu-
larly when violence is done to women, popular passions are always
difficult to restrain, and if the penalty provided by law is uncertain or
insufficient, the conservative element in the community finds itself
deprived of its best argument for letting the law take its course.
That the jury system, as applied to criminal cases, has faults is
evident from the fact that some of the States of this Union, like Mary-
land, for instance, have enacted statutes allowing the accused to select
whether he shall be tried by jury or by a judge, and this notwithstand-
ing the constitutional provision on the subject. I regard the Maryland
statute as the first step to undermine the jury system.'
' The Bar Association of Texas held an annual convention at Galveston in 1896,
and both the speeches delivered and the resolutions adopted show very clearly the
inefficiency of the criminal system of jurisprudence in that State ; and the remarks
then made apply also to the criminal jurisprudence under the common law.
Mr. F. W. Ball of Fort Worth read a paper before the association which was
most emphatic in its arraignment of the existing system. "What can I say," he
asked, "when I speak of our criminal law and procedure? Can I do aught but voice
the general sentiment of the people, and say that it is a stench in the nostrils of every
honest and law-abiding man in Texas?" He complained that " the solicitude of the
courts for the Constitution and the bill of rights is such that they adjudge them to be
invaded every time a red-handed murderer or a highway robber is convicted without
observing all the formalities and niceties requisite under our beautifully complicated
system of criminal procedure " ; and he declared that the decisions of the criminal