Anglo-Saxon and Roman CriminalJurisprudence. after the systems prevailing in countries which had adopted the Roman law, and it was provided that when the rules of common law and those of equity come into conflict, the latter shall prevail. Such a provision is almost equivalent to repealing the common law itself.
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American lawyers in arguing cases, and judges in deciding them according to the practice under the common law system, are controlled almost entirely by precedents, and
while considerations ofjustice and equity are sometimes indulged in, they have legally but little weight. Such a system is very un satisfactory, because each case being differ ent from the other, the decisions in the one cannot be made to exactly fit the other. Moreover, it entails a herculean task upon the lawyers and judges, making it obligatory for them to search for precedents not only in the courts of their own country, but even in these of England. With the justices of the Supreme Court of the United States, this work is still more arduous, since they must examine and be familiar not only with all cases decided by the various Federal courts, but by all the courts of the forty-five differ ent commonwealths which form this Union, each with its own distinct legislation, and with the Roman law also, as the State of Louisiana has adopted it; entailing besides the need of keeping a very large library. Doubtless, no public functionaries under the Federal Government have more arduous work imposed upon them. The day is not long enough to permit its completion, and I have personally known more than one who has broken down under that tremendous strain. This condition of things shows that the common law is still in its rude and primary state, viz. : setting precedents. After suffi cient precedents have been collected to form a code, they should be codified if the United States shall not previously have ac cepted in its entirety the Roman law. The Roman law had to pass through these dif
1 During the last meeting of the Bar Association of Texas from which I have already quoted, it was mentioned that a robbery was committed in Groveton, the only town of that name in the State of Texas, and the county seat of Trinity County in said State. The robber was detected, tried and convicted. There was no question either as to his guilt or as to the fairness of the proceedings against him in the court where he was arraigned. The case was carried up on exceptions to the Court of Appeals, and that tribunal set aside the verdict on the ground that the indict ment only specified the crime as having been committed in the town of Groveton, State of Texas, instead of the town of Groveton, County of Trinity, State of Texas. It seems that the Court of Appeals is required by the Statutes to
rule in that way. When the present appellate system was established by the Legislature of Texas, as originally sub mitted, the measure contained an article providing that,
- ' if the court of civil appeals shall be of the opinion, in
considering all the facts of a case, that the trial court failed to do substantial justice, it shall reverse the judgment, but it shall affirm the case if substantial justice has been done, though there be errors committed not affecting the merit of the case." This article provoked more debate in the Senate than any other in the bill, and it was passed by a large majority, but in the House it was stricken out with out debate, and apparently without any apprehension of its importance.
LITERAL APPLICATION OF THE LAW.
The literal application of the common law is, I think, another of its disadvantages. A common law judge is bound to apply the law in its literal meaning, even in cases when doing that may involve a denial of justice, while a Roman law judge applies the letter of the law to the case where it fits ex actly, and has some discretion to be guided by the meaning and object of its statute, rather than by its literal words, when its words conflict with justice or equity. A result of the literal application of the statute, and of the strict observance of the formalities established by the statute, is the reversal of judgments upon the ground of purely technical errors, which in some states, like Texas, is carried to an excess, very difficult to understand by a Roman law lawyer.1 PRECEDENTS AND THE COMMON LAW.
