Anglo-Saxon and Roman CriminalJurisprudence. 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.1 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 different 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 com mendable, 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 re peatedly violated by each and all the subse quent kings of England, down to the acces sion 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 Com mons has so greatly overshadowed that of the barons that the two classes are rapidly merg ing into one, the changed conditions do not warrant any undue laudation of the Great Charter. Certainly, in the United States, where all differences of class have disap peared 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 may be 1 History of English Law before the time of Edward I, by Sir Frederick Pollock and Frederick William Maitland, Cambridge, 1895, Vol. I, page 117.
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supposed to 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 can not, therefore, have the importance it once had. The insufficiency of this system to punish criminals is made evident, I think, by its practical results, which have, unfor tunately brought about what is commonly called lynch law, and by the fact that these in their turn have given rise to a prac tice which is based upon a defect in existing law, and which, therefore, comes to be, in fact, the complement of criminal proceedings under the Anglo-Saxon system. It is hard ly 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 per son is the author of that crime, and that he cannot be punished under the regular pro ceedings 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 in the only way left to them. Where, as it sometimes happens, the victim is not the real perpetrator of the crime, the practice is indeed barbarous.2 2 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 Sissos. On the night of the 5th of Au gust, 1895, George Sears, the owner of a saloon at Bailley
