Page:The Green Bag (1889–1914), Volume 08.pdf/456

 Anglo-Saxon and Roman CriminalJurisprudence. THE COMMON LAW AND ROMAN CIVIL JURISPRUDENCE.

When we pass from criminal to civil juris prudence, 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 civil law is not inferior to the English common law is that England, the very coun try where it had its birth, was obliged to es tablish two systems of civil jurisprudence, one the common law proper, which was adminis tered through the older and ordinary courts, and the other the Roman law, administered through the chancery or equity courts. Law is supposed to be the perfection of jus1 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, de livered 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 hesita tion whatever, after a long experience of it, to assert that, as a mode of determination of civil causes and private con troversies, the genius of man has never yet devised anything more absurd than the organized ignorance and besotted pre judices of twelve men in a jury box. The man who has a good case is always desirous to have 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 a jury box; while the dishonest 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 cor ruption of juries can they base their hopes of success. This is the experience of every man who has had to do with courts of law, and it speaks volumes to the discredit of the system. Then the divided responsibility of court and jury, the neces sity of immediate decision by the former of questions of law upon which appellate tribunals often deliberate for weeks and months without coming to a satisfactory conclusion, the consequent necessity 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. "We think we are fully justified in the assertion that there is no one feature 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 barbar ous age, when judges may not have been more intelligent than juries, and may have been, in fact, the tools and min ions of despotic power; but in this age and country it is nothing more than a relic of feudal barbarism."

419

tice and the best expression of human reason; it should, then, embrace not only equity, but the very essence of justice itself. If, there fore, a particular law or system of laws 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 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 between Sir Ed ward 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 adjudi cated at the common law courts. The es tablishment 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 supe riority 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 com mon law court could not be executed, and became therefore, in fact, nullified. I am well aware that a common law law yer 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