Page:The Green Bag (1889–1914), Volume 08.pdf/457

 420

court, for instance, decides a case against the defendant, and if after that decision the defendant finds proofs to establish his con tentions, he may still go to the equity court, present his proofs and ask that the plaintiff be enjoined from executing the judgment against him; and in such cases the equity court has jurisdiction to grant such an ap plication. In a case like the one cited the equity court does not pretend technically to revise or reverse the judgment of the com mon law court; but by granting the injunc tion against its execution it practically ef fects its reversal; and such a system there fore actually produces the same result as though the equity court were a court of ap peals.1 The American people, with their practical common sense, have remedied a great many of the defects of the common law practice in civil cases, changing it gradu-

ally to such an extent that now it can hardly be said that the English common law system, as expounded by Blackstone, is in force in the United States. It is still called the com mon law, but for all practical purposes it is almost superseded by the Roman law. Even as regards the jury system, and not withstanding the fact that this has been con sidered the corner-stone of common law criminal jurisprudence, some States of this country have, as I understand, changed the foundation of that system by not requiring a unanimous verdict for the conviction of the accused. The very country which established and for years maintained the common law has practically superseded it by the Roman jurisprudence. In one of the acts of the British Parliament passed in the years of 1873, 1874 and 1875 the whole system of English Courts of Justice was remodeled

i The following letters explain themselves and make this subject more clear : — Chicago, July 17, 1896. Senor Don Matias Romero, Minister of the Republic ofMcxico,Washington, D.C. Dear Sir. — I have read with deep interest your valua ble article in the current number of the North American Review, contrasting the systems of criminal jurisprudence in force in your own country and in this, and am happy to say that I have gained from it much information which I had not before possessed, and of which very, very few of our American lawyers, and publicists even, have any ade quate knowledge, and I desire, therefore, to sincerely thank you. May I, however, take the liberty of correcting a mis statement contained in the paragraph commencing at the bottom of page 88? It would seem that you regard the power of a court of equity to restrain the enforcement of a common law judgment as equivalent to the power of a court of appeal. As a matter of fact, it is not so. A court of equity has no power whatever, under our system of juris prudence, to interfere where an appeal would be the proper remedy. But where there has been fraud, or where it appears that judgment has been entered, when in fact, no summons has been served on defendant, although the rec ord recites that summons has been served, a court of equity may act, provided the question could not have been raised in the common law suit, by reason of want of knowledge on the part of the defendant, until after the expiration of the term of court, or some similar reason. In addition, the defendant who seeks the aid of a court of equity in such case must show that the plaintiff had no cause of action; but, if an appeal can be taken, an appeal must be taken, or defendant cannot complain.

The error into which you have inadvertently fallen is, perhaps, a natural one, and does not detract in the least from the value of your article, for which I again express my appreciation. I trust you will not consider my remarks as impertinent, even though your attention has already been called to your error. I am, respectfully, your obedient servant, Edwin I. Felsenthal, Attorney-at-La-v. Washington, Aug. 7, 1896. Mr. Edwin I. Felsenthal, Attorney-at-Law, Chicago, III. Dear Sir. — In answer to your kind and appreciative note concerning my article in the North American Review contrasting the criminal systems of the Roman and the Eng lish law, I have to say that I am entirely aware that, under the English or Anglo-American system of jurisprudence, there is technically no appeal from the courts of common law to the courts of equity, but that the concurrent jurisdiction of courts of common law and equity, and the power of courts of equity in many cases to annul or restrain the judgments of courts of law, had the practical effect of an appeal from the latter to the former. Probably I did not use the term appeal in the strict technical sense which it has in your jurisprudence, but rather in the common sense. However, your great commentator, Sir Edward Coke, in his famous controversy with Lord Bacon, concerning the jurisdiction of equity, would seem to have regarded the ex ercise of the jurisdiction assumed by equity as an attempt to give an appeal to the courts of chancery from the courts of common law. Thanking you for the kind expressions concerning my article contained in your letter, I am very truly yours, M. Romero.