intolerable defects in common law procedure which are so deep-seated that nothing but complete eradication will remedy them, and for principles to guide us we can with great profit turn to the civil law. I do not now wish to institute any general comparison between the civil law and the common law, but rather to indicate some of the respects in which the one is superior to the other, particularly in the organization of the courts.

In the matter of relying upon precedents, the English and American courts go to the most absurd lengths. Because some judge of doubtful scholarship wrote an opinion stating that the law was thus and so, upon a given statement of facts then before him, the judge in the case at bar will decide that the same alleged principle of law is applicable to the statement of facts before him, although it is quite different from the statement of facts set forth by the preceding judge - unless, of course, there should be a number of authorities, as is quite probable, cited on the other side.

A marked superiority in civil law procedure is found in its criminal practice. Under the common law the accused must be confronted by the prosecuting witnesses before the judge and jury. This means that there can be no evidence taken in the case (except dying statements) until it comes to trial. If the trial is postponed for three or four years, or there are reversals and new trials, as is so often the case, it frequently occurs that witnesses die, or leave the country, or forget, so that in the end the criminal goes free. To obviate this to some extent, an atrocious custom has grown up among us of imprisoning persons who were so unfortunate as to witness the crime and holding them under heavy bail to appear at the trial. If they are unable to give bond, they remain in jail indefinitely. A more indefensible outrage cannot well be conceived of; yet it is only one of numerous barbarisms incident to our legal practice which grow out of and are inseparable from our jury system.

Under the civil law every witness would be taken before a judge at once, and there, in the presence of the accused, give his testimony, which would be written down, and signed by him. The attorney of the accused would have every opportunity to cross-examine him, and if he committed perjury, would be given ample time to show that fact. In this manner the written record would be made up by the successive depositions of the witnesses on each side. Weeks or months might thus be consumed in making up the record of the case, which when completed would go before the full bench of judges for their decision.

A typical organization of a tribunal under the civil law would resolve the court into three divisions called "Instances." The first "Instance" would consist of a single judge, or examining magistrate, who would preside at the taking of the testimony above described; this judge and four other judges of equal grade would constitute the second "Instance," whose duty it would be to digest the case and

write an opinion; but before final decision the record would go to the third "Instance," consisting of a full bench of nine judges. Any judgment granted in the first or second "Instance" would only be provisional; it could not be executed except by the plaintiff giving an indemnification bond; while all sentences in criminal cases must be approved by the third "Instance," or the majority of the full bench, before being carried into effect.

Under this system perjury is reduced to a minimum. With us, if a lawyer can get a jury to believe a lying witness, his case is practically won. Perjury is almost never punished among us, and it now constitutes the most serious menace to the integrity of our legal system. An honest lawyer and his witnesses, expecting that the other side will swear to the truth when the trial comes on before the jury, are swept off their feet by perjury; it is then too late to rebut the testimony; the jury from inherited predilection believes the smoothest liar; and the verdict of the jury decides as to the "preponderance of evidence," and cures the crime. Glaring absurdities like this are impossible under civil law procedure, because if perjury is committed, there is always ample time and opportunity for rebutting it. Where the proceedings are rapid, and conducted with violence, as with us, false testimony is incorporated into the confused mass of verbiage presented to the jury, which is purposely misled by the harangues of the lawyers, and to sift it out and arrive at the truth is far beyond its powers. But when a false witness must encounter a severe cross-examination, his answers having no immediate effect, but being put into cold type for future inspection, he knows that any discrepancy in his answers will be placed, as it were, in parallel columns, and exhibited to the scrutiny of a dispassionate bench.

VII. TYRANNICAL POWERS USED BY OUR COURTS

Courts in the United States habitually use extraordinary powers in a tyrannical manner. They commit abuses of discretion which are nothing short of scandalous. The power to grant injunctions and mandamuses and to punish for contempt of court have become such a dangerous infraction of personal liberty in the hands of irresponsible men that the strange thing is that the people of the United States will permit its unrestrained exercise. The bare order of a judge is sufficient to send a man to jail on alleged "contempt of court," and the American people, who never cease deriding that mediæval, barbaric power exercised in Germany, the power to imprison for lèse majesté, tolerate in our own free country a more wicked abuse of power-punishment upon the order of a single judge for "contempt of court. It would be better that this power were entirely taken from the courts than that it should be used and abused as it is at present. By the exercise of this power things are accomplished which

away

were never contemplated either by the law or by our constitutions. The law, for instance, abolished imprisonment for debt, unless the debt was contracted fraudulently, and becomes what is known as a tort. Our judges, particularly those of the United States courts, override this plain mandate of the law with impunity. By the operation of this scheme of imprisonment for "contempt of court" the United States judges are in the habit of sending men to jail for debt. The scheme is worked in this manner. The judgment debtor — and in these days of blackmailing lawsuits, subornation of perjury, and "objections" to evidence, it frequently happens that the judgment debtor does not really owe the amount is seized in supplementary proceedings and forced into involuntary bankruptcy. The judge will order him to turn his property over to the judgment creditor, who may be or may not be a bona fide creditor. If the judgment debtor fails or refuses to turn over the property in question, or if the judge for any reason whatever is opposed to the man, or thinks he is concealing property, or wants to lock him up in jail on general principles, he will declare the man in "contempt of court" and send him to jail instanter, without trial, and for as long a period as he wishes.

Is not this a dangerous power? We have simply transferred the power to tyrannize over others from the feudal lords and petty despots to the United States judges.

VIII. UNWARRANTED USURPATION OF POWER BY THE COURTS

American courts habitually declare laws "unconstitutional" on the flimsiest of pretexts, and set them aside as invalid. This dangerous power has been abused in a manner and to a degree which may well challenge the most serious attention. A law which perhaps has received the widest general discussion, anterior to its passage, and has been carefully dissected by the legislature and the governor, or possibly by Congress and the President, is wiped out of existence by a court with a stroke of the pen. Indeed, this power is not alone exercised by the courts of last resort, but frequently a justice of the peace assumes the same high prerogative. It is evident that no court of inferior jurisdiction should be permitted to pass upon the constitutionality of any statute. But the abuse does not end here. The supreme courts, or courts of final jurisdiction, are in the habit of making most amazing rulings in this respect, apparently after only a superficial investigation of the question involved. If these courts only set aside laws which were oppressive or wrong or inequitable, or which were in fact in violation of the Constitution, the power thus exercised, if used with moderation and wisdom, would be wholesome; but unfortunately, with cynical disregard for the welfare of the community, they destroy many beneficial laws on pretexts which are often so preposterous that they suggest interested motives in the background. Moreover, the

courts are continually usurping the functions of the legislature by making laws themselves, and it must be said that some of the worst laws in the United States are judge-made. American writers are fond of asserting that the law is "the perfection of human reason,' notwithstanding the contradictions which are being daily handed down by ignorant and illogical minds on the bench. Much of the heterogeneous mass of "judicial decisions" has never been expressed in the form of statute or otherwise by any legislative authority, but is confessedly the product of the judge or judges in the case. Moreover, our Constitution is being changed in a startling manner by judicial interpretation, without consent or protest on the part of the American people. The plain language of the American Constitution has been distorted out of all semblance of its original signification, and far-fetched meanings imported into its phrases. Many guaranties of the Constitution have been wholly disregarded by the courts, and the document itself as construed by the Supreme Court is wholly unlike in plan or purpose the Constitution bequeathed us by the forefathers.

The perverse inefficiency of the American judiciary constitutes the real menace to our national growth and development. It raises the vital question as to whether we are capable of governing colonies and dependencies and maintaining a semblance of law and order among them. Indeed, a still more important question is thrust upon us concerning our own national existence: Is not the inefficiency and debauchery of the American judiciary, in fostering perjury and in encouraging speculative lawsuits, mainly responsible for the widespread laxity of the public conscience? The fact that justice cannot be obtained in our courts, is not that in large measure responsible for the dishonesty so glaring in our political, social, and business life?

CHAPTER IX

IS THE UNITED STATES EQUAL TO THE TASK OF GOVERNING AND CIVILIZING LATIN AMERICA?

IN

N a discussion of the evanescent character of all things LatinAmerican it were well to devote some thought to the relatively temporary nature of our own works.

On the material side many of our great improvements will surely stand for generations. Such a work as the Chicago Drainage Canal will doubtless endure as long as the great Chinese Wall, which has already seen twenty-five centuries come and go. But how few such works there are! The pyramids date back surely more than four thousand years, and perhaps double that time. Is it reasonably probable that there is a building in the United States which will endure a similar period? Splendid as are our engineering accomplishments, how few are our really substantial works!

But why talk of even hundreds of years when any one familiar with construction work can see at a moment's glance that nearly everything in the way of architecture in the United States is doomed to destruction even before the end of a century. If one cross and recross the United States a hundred times in every direction, and keep his eyes open, he will inevitably become burdened with the thought that the larger portion of our material progress is ephemeral. By far the large majority of our buildings are of flimsy pine lumber, or some other perishable material, which will become dilapidated in twenty-five years, and rotten in fifty; while the needless losses from fires are counted by the millions yearly.

Why do not people build houses that will stand? Simply because the element of permanency has not yet become our predominating national characteristic. We are building for to-day, as though we were merely sojourning here, and it were not expected that our descendants will permanently occupy the land.

Suppose that the farmer and his sons should come to value solidity more than present appearance; suppose that instead of the cheap but easily constructed frame buildings they should resolutely set out to build family mansions, not only for themselves but as a heritage for future generations, - would not the whole country be completely changed in a few years? Such a farmer and his sons could, unaided,