appellate tribunal in hundreds of cases, by which known and notoriously guilty persons
have escaped punishment, " fully and completely demonstrate one or the other of these
two propositions, namely, that our criminal law is entirely insufficient for the purpose
of preventing and punishing crime, or that the courts who have delivered the opinions
in these cases are utterly imbecile and ignorant."
In speaking of practice and procedure in civil cases Mr. Ball declared that proper
words of denunciation failed him, for the reason that " every kind of proceeding that
is obsolete, every kind of method that is expensive, every kind of device that is dila-
tory or open to trickery, every kind of pleading and writ that is confusing and incom-
prehensible, is here foregathered for the benefit of the shyster lawyer, the greedy
official, and the dilatory judge, and to the complete destruction of the miserable liti-
gant." Judge Simpkins showed that a large proportion of these evils would have been
avoided, if the Legislature had done its duty when the present appellate system was
established by that body.
A striking address was delivered by Judge E. J. Simpkins of Corsicana. He
enunciated the central truth, so often overlooked, that " the great aim of all Judicial
Criminal jurisprudence, 409
I was told by a very prominent United States judge, that one of
the leading advantages of the jury system is of an educational charac-
ter, as in small towns, where people have few opportunities for educa-
tion, the fact that ignorant men are impanelled in a jury, allows them
the opportunity of hearing able arguments of the counsel, and consider-
ing difficult questions of law and fact, thus diffusing learning and educa-
tion. While I agree in so far as that advantageous result of the jury
system is concerned, I do not see that its educational advantages
should be enough, by themselves, to establish or maintain that system.
Lynch Law. — The insufficiency of the common-law system of crimi-
nal jurisprudence 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 rise to a practice which is based upon a defect in the exist-
ing law, and which, therefore, comes to be, in fact, the complement of
criminal proceedings under the Anglo-Saxon 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 is the only way
available. Where, as it sometimes happens, the victim is not the real
perpetrator of the crime, the practice is indeed atrocious.' In any
procedure is to administer substantial justice," and he declared that, "when this
result is accomplished, though errors are committed not injuriously affecting the real
merits of the cause, the judgment ought to be affirmed."
judge Simpkins held that it is of still greater importance in criminal than in civil
cases that the controlling question should be the guilt or innocence of the defendant
of the charge preferred, since criminal judgments more immediately affect the people,
and therefore excite more comment than civil, and consequently whatever reasons
exist for sustaining judgments in civil cases apply with tenfold force in criminal cases.
' As an instance of this, I will mention the case of Luis Moreno, who served in
the Mexican army, was honorably discharged and came to California, where he worked
in the Coggins Mill, near Sisson. On the night of the 5th of August, 1S95, George
Sears, the owner of a saloon at Bailley Hill, was mortally wounded in an affray, and
Caspar Mierhaus, a miner who was in the adjoining room to the saloon, came out to
help Sears, there being no witness to that incident. Moreno and Stemler were sus-
pected of having committed the crime and were consequently arrested. Mierhaus died
of his wounds some days afterwards, and there was contradictory information as to
whether he identified Moreno or not, as some said that he had, and others that he had
said the assassin had a beard, Moreno having none. Before the preliminary examina-
tion took place, which had been fixed for the 26th of August, a mob attacked the jail,
took out four prisoners, including Moreno, and lynched them all. When this lynch-
4IO Criminal 3urisptu^ence.
case the demoralizing effects of lynch law are so great, and I might
say so shocking, that any system which seems to make such a law nec-
essary 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 imperfect
system of procedure, that causes delays in bringing about a trial, and
often to the chicane and deficient preparation of the prosecuting officer.
Up to recent date lynching in this country was only practised in
the Southern States, and almost invariably on negroes guilty of the re-
volting crime of using violence against white women, but some have
occurred recently in Central States, like Ohio and Maryland, and even
in Connecticut, one of the New England States, which shows that the
practice, far from being checked, is on the increase."
ing was reported in the papers, a man who would not give his name for fear of being
prosecuted, addressed a letter to the San Francisco Examiner, signing it John Doe,
published by that paper in its issue of November 2g, 1895, in which he confessed
that he w^as the only author of the deed, and that he had killed Sears in self-defence,
Moreno being thus exonerated from all participation in the crime.
' The extent lynching has reached in the United States is truly appalling.
The report above quoted of the Committee of the Judiciary of the House of Rep-
resentatives, containing several tables compiled by the Department of Justice of homi-
cides perpetrated in the United States, shows (Table No. 3) that during 1895 there
were 132 legal executions and lyr lynchings out of 10,500 homicides.
I find in a newspaper the following statistics about the number of judicial hang-
ings and lynchings in the United States during five years. I am sorry that the years
are not stated nor the source from which said statistics were taken, so as to verify
them ; but I quote them on the supposition that they are correct :
"According to statistics, which are probably reliable, there have been only 723
judicial hangings in that country in five years, and 11 18 lynchings in the same period.
During this same five years there were 43,902 homicides. The number of illegal
executions are not hard to account for. When there are but 723 executions by law
out of nearly 44,000 murders, it cannot be wondered that the people should so fre-
quently take matters in their own hands. The reason for this phenomenal miscarriage
of justice will be imputed by some to the extraordinary smartness of the lawyers, and
by others to the morbid sentimentality which exists towards murderers and cut-throats
of the worst class."
* In support of these views, I quote the following extracts from an editorial from
the Washington Post, one of the leading papers of this capital, on the recent Urbana,
Ohio, lynching, which took place late in June, 1897 :
" . . . And when that crime is committed in localities where the law does
not provide what public opinion regards as adequate punishment, or where the people
have learned by experience that the machinery of justice is sluggish and uncertain,
human nature asserts itself as certainly and as terribly as it did Friday in Ohio. . . .
" Preach of this thing of lynching as we may, the custom will survive all denuncia-
tion under existing circumstances. Until legislatures provide penalties which public
opinion accepts as adequate, and until the courts convince the people that they can be
relied upon to dispense speedy and unerring justice, communities will continue to pro-
tect themselves by punishing, with their own hands, the one crime which is unspeak-
able and unendurable.
Criminal 5uri5pru&ence. 411
It is very remarkable that the jury system has not produced in
England the same results as in the United States in so far as lynching
is concerned. Perhaps that is due to the fact that trials take a shorter
time in England than they do here, and that the punishment follows
the crime without much delay.
The Mexican J^ury System. — The force of example and the great
credit which Anglo-Saxon institutions have attained in the world, on
account of their regard 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. Senor 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 at
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, a 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 Mexi-
can character. He provided, for instance, that a majority of the
eleven jurors composing our jury should render a verdict, while under
the Anglo-Saxon system the unanimous vote of the twelve jurors is
required. It was provided, besides, by the Code of Criminal Proced-
ure for the Federal District and Territories issued in 1880, with a view
to prevent the failure of justice, that, if, in the opinion of the presiding
judge, the verdict were clearly against the evidence, he should so re-
port to the higher court, with a motion to set that verdict aside, and
if the higher court should sustain his opinion, a new trial should be
granted, unless eight jurors had concurred in the verdict, in which
case it should be final and could not be set aside. These provisions
were somewhat changed by the Act of June 24, 1891, which was in-
corporated in the new code of criminal procedure of July 6, 1891,
which requires that the jury shall be composed of nine jurors, that a
majority of them shall render a verdict, and that the decision of the jury
shall be final if given by seven votes. Even with all these modifications
in the system, I have seen cases in Mexico where criminals have gone
unpunished, because, through the eloquence of their attorneys, the jury
has been influenced in their favor.
Under the system of jurisprudence prevailing in the Federal Dis-
trict of Mexico all the preliminary proceedings in a criminal trial, such
as the examination of the accused, the taking of testimony, etc., takes
place before the judge who presides over such proceedings without a
jury; when this has been completed and the case is ready to be sub-
mitted, the jury is empanelled and the evidence is read to it, as set
forth in the record already formed; the prosecuting attorney then
412 Criminal 3uri5pru^cnce.
presents the charges, the defense is heard, and the witnesses of both
parties are examined and cross-examined; thereupon the jury renders
its verdict adjudging the accused either innocent or guilty, following
substantially the practice under the common law of England and of the
United States. In most of the Mexican States the old Spanish system
of criminal jurisprudence yet prevails.
There are in Mexico some signs of reaction in regard to the jury
system. Article VII. of our Constitution provided that all offences
committed through the press should be tried by a jury which should
decide as to the facts, and if the accused were convicted, another jury
should apply the law and fix the penalty. But as the practical result
of this system was that no offence of that kind could ever be punished,
because the jury always acquitted the accused, our Constitution was
amended on May 15, 1883, abrogating the jury system in these cases and
submitting the offenders to the common courts, so that now offences
committed through the press are tried and punished like crimes of any
other character.
The Old Spanish System of Criminal yurisp rude nee. — I often hear it
asserted in this country that the proceedings under the Roman law are
secret, and that the accused does not know what the witnesses have
testified against him. This assertion is entirely incorrect, and often
leads to very serious misunderstandings. One of the difficulties that the
Spanish- American Republics have to contend with in this country, in
cases where citizens of the United States are tried by the local judges
in any of those Republics, is the great difference between their criminal
legislation and procedure and the system prevailing in this country.
According to the Roman system, every criminal trial is divided into
two stages; during the summary {^sumario)., which is the first, and the
purpose of which is to ascertain the facts connected with the case,
the testimony of the accused is taken down, sometimes without his
knowing who may be the witnesses testifying against him, or even the
crime with which he is charged. During this stage the accused is
kept in solitary confinement, and not allowed to place himself in com-
munication with others so that he cannot connive any scheme which
might defeat the ends of justice, and while in such confinement we call
him in Spanish " Incomunicado." During the plenary {plenario), or
second stage, all the proceedings of the summary are made public;
and thereafter all the proceedings are public, the accused enjoying the
same rights which are guaranteed to him by the common law. To this
latter statement there may be some slight exceptions, as, for instance,
the fact that bail is allowed in only a few specified cases, determined
by law, and never when the accused may, upon conviction, be liable
to bodily punishment. It would take more space than is allowed in a
paper of this character, to state the respective advantages of the two
{
Criminal Jurisprudence. 413
systems, and I shall, therefore, confine myself to briefly mentioning the
principal differences between them.
The secret proceedings of the sumario are much criticised in the
United States, it being forgotten that the English common law likewise
provides a secret proceeding very similar to the sumario. Before any
one is indicted in this country, the case is heard secretly by a grand
jury, a body composed of persons who, in some cases at least, are
secretly designated. The grand jury listens to such testimony as is
offered, or as it may deem sufficient, without permitting the accused
to be present or to know what transpires; and if, in their judgment,
there is sufficient ground, an indictment is found; and thereafter the
public trial begins before the court. It is very difficult, of course, to
make any general statement which will be accurately true with respect
to all of the forty-five commonwealths which compose this Union,
since, as is well known, each of them has its own legislation. In some
States, as in New York, a preliminary hearing may take place before
a police magistrate, who has in some petty cases power to inflict punish-
ment, release the accused, or hold him for action of the grand jury.
Sometimes, however, no arrest is made until an indictment has been
found by the grand jury, or in cases of misdemeanor, for trial by a
court of judges if the defendant waives a jury.
So far, therefore, as a proceeding under one system may be said to
correspond to a proceeding under the other, it may be said that the
sumario, in countries where the Roman law prevails, corresponds prac-
tically to a grand jury indictment in Anglo-Saxon nations.
In the Latin countries testimony is taken down in writing, and,
after being read to the witness, is signed by him and by the judge, in
proof of the fact that his statements have been correctly recorded.
That gives a degree of certainty to the correctness of the testimony
which cannot be obtained by a stenographic report; and it renders it
impossible for the judge or opposing counsel to put into the mouth of
a witness language different from that which he has actually used.
When the summary is ended, all the testimony is presented to the
accused for his examination; and the right is then given him to cross-
examine the witnesses who have appeared against him. The cross-
examination is an old Spanish proceeding which we call " careo," and
which in Spanish means that the accused is personally confronted with
the witnesses in presence of the judge, for the purpose of cross-
examining them. It is therefore quite incorrect to assert that, because
the sumario, or first stage of the trial under the Latin system, is kept
secret, therefore the accused does not know anything regarding the
evidence against him; the fact being that during the second or plenary
stage of the proceeding he is fully informed of all that has been done,
and is given ample opportunity to refute it, either by presenting his
414 Crimtual jurisprudence.
own witnesses or by cross-examining such as have been presented by
the other side, or called by the judge.
It should not be difficult to see which system of criminal juris-
prudence is, on the whole, best calculated to do justice by ascertain-
ing 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 fails 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 seldom any adequate remedy.
The Anglo-Saxon criminal jurisprudence is founded upon the prin-
ciple that it is better to let one hundred criminals go unpunished than
to inflict punishment upon a single innocent person. While the Latin
system accepts that humanitarian principle, it is nevertheless better
calculated to prevent the escape of a criminal unpunished.
Some American citizens who are tried in Spanish-American coun-
tries expect that the proceedings there will be conducted in accordance
with the legislation of their own country, and, when they find it other-
wise, 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 cause of
serious difficulties and misunderstandings between the United States
and some of the Spanish-American republics.'
Right of Appeal. — Another right guaranteed to the accused under
the Mexican law, and which in its broadest sense is unknown to the
common law as such, is the right of appeal; that is to say, the right in
every case to have both the law and the facts reviewed by a higher
' As 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, stated that Colonel W. A. Paxton, of that city, had received a letter from
MacStewart, an old employee of his, who was under sentence of death at Parral,
Chihuahua, Mexico, for shooting a policeman who was trying to kill him for a trivial
offence, and stated that MacStewart desired to be placed in a court where he would be
allowed to plead self-defence, which he pretended was not permitted under the Mexi-
can law. What has already been said about the Mexican criminal jurisprudence is
enough to show how entirely unfounded such a statement was.
Whenever I notice in the newspapers any complaint of this character, 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
Criminal Jurisprudence. 415
court. Under the Mexican laws this right is very broad. Our laws
provide that no decision made by judge or jury condemning the ac-
cused can be executed until after it has been affirmed by a higher court.
Not only is the accused given the right to appeal once, and sometimes
twice, from any decision against him, but it is also made the duty of
the lower court to send the case with the record for review to the
higher court in cases where the convicted person does not appeal.
Such is the practice under the Roman and Spanish law; but in the
Federal District of Mexico, where the jury system has been adopted,
the case goes to the higher court only on appeal of the aggrieved party,
and said appeal only affects questions of law, and not tlie facts as
stated by the jury, which cannot be controverted.
It is true that under the common-law system of criminal jurispru-
dence the accused or his lawyer can take exceptions to points decided
by the judge during the trial, and that these exceptions may be
reviewed by a higher court, but this can hardly be said to be an
appeal, in the sense contemplated by the Mexican law, because the
decision of the appellate court is only limited to those points which
may be covered by the exceptions taken at the trial. It is true that in
some States, as, for instance. New York, an appeal can now be taken
which will bring before the court for review, questions of fact as well
as questions of law; but in so far as this procedure has been adopted,
it is a departure from the strict rules of the common law and an adop-
tion of the principles of the Roman law, since, according to the theory
of the common law, a jury can make no mistake, and its findings are
therefore final.
IVn'/ of Habeas Corpus and Amparo. — We have copied in our Con-
stitution from the Anglo-Saxon system of jurisprudence the writ of
habeas corpus, the great conquest of the Anglo-Saxons, which guar-
antees life and liberty to man, and which places under the control of
the judiciary the otherwise arbitrary orders of those in authority; but
we have gone considerably farther in this direction, and under the
should be any real cause for complaint. In due course I generally receive an official
statement which is almost always at great variance with tiio conjplaint. In this par-
ticular case, the facts turned (^ut to be that MacStewart abused a policeman who was
unarmed, and following him to the posi-office at I'arral, fired upon him without the
slightest cause, killing him instantly ; that, not satisfied with this, he killed the police-
man's horse, and then fired upon the chief of police who arrested him. It further
appeared that this was his second offence of this charactt" as he had killed before, in
Mexico, a United States citizen named Rogers. In the c^.. ^,of Rogers, MacStewart
was acquitted, and upon the trial for the murder of the policeiuin he was allowed to
plead self-defence, but failed utterly to establish it, as all the witr^esses examined, in-
cluding an American citizen by the name of Davis, a friend of Ma«.Stewart's, testified
that there had been no provocation on the part of the policeman, an I that the accused
had committed a wilful and wanton murder. '
4i6 Criminal ^urispiu^eucc.
name of amparo have extended this guarantee so that it is not limited
to the protection of personal life and liberty, but embraces all rights
under the Constitution — including the right of personal property, even
when such rights have been defined by judicial decisions. If, for in-
stance, a man finds that his property, or any other of his Constitutional
rights, are interfered with, either by civil or military authority, or even
by a judicial sentence of a Federal or State court, he may apply to the
respective Federal district court having jurisdiction thereof, asking it
for an injunction to suspend the act complained of, and finally to de-