ous.

pelled, or if they be dead, or have become incapacitated to give evidence, there is no mode by which their statements against the prisoner can be used for his conviction. The exceptions to this rule are of cases which are excluded from its reasons by their peculiar circumstances; but they are far from numerIf the witness was sworn before the examining magistrate, or before a coroner, and the accused had an opportunity then to cross-examine him, or if there were a former trial on which he was sworn, it seems allowable to make use of his deposition, or of the minutes of his examination, if the witness has since deceased, or is insane, or sick and unable to testify, or has been summoned but appears to have been kept away by the opposite party. So, also, if a person is on trial for homicide the declarations of the party whom he is charged with having killed, if made under the solemnity of a conviction that he was at the point of death, and relating to matters of fact concerning the homicide which passed under his own observation may be given in evidence against the accused.

In making any modification of the law of evidence as thus stated it is of course imperative that due care be taken not to infringe upon the rights of the accused which are secured by the Constitution of the United States, and also by those of most if not all of the several States to a trial by jury and "to be confronted with the witnesses against him." The latter of these is not only a constitutional but a natural right which has been long recognized wherever an inherent sense of justice and fairness has prevailed, for when the Jews applied at Jerusalem to Festus, their Roman Governor, to give judgment against the Apostle Paul, then a prisoner at Cæsarea, he answered, “It is not the manner of the Romans to deliver any man to die, before that he which is accused have the accusers face to face, and have license to answer for himself concerning the crime laid against him."

While, however, the accused has an undoubted right to be confronted with the witnesses against him and to cross-examine them or have them cross-examined by his counsel in his presence, there is no ground either constitutional or natural why this right should in all cases be exercised by him in open court, and moreover, there is abundant authority for the proposition that these rights like most others, may be voluntarily waived by a failure on his part to avail himself of them with reasonable promptitude when a fair opportunity had been offered him to do so.

The following tentative draft of a statute is submitted as illustrating the general character of the legislation which is in the opinion of the writer necessary as a prerequisite to any effective dealing with the question of lynch law in the United States at the present time.

DRAFT OF AN ACT ΤΟ AMEND CRIMINAL

CASES.

PROCEDURE IN CERTAIN

I.

Whenever the State's Attorney shall have good reason to believe that the crime of rape has been committed, or attempted, or that any outrageous or indecent assault has been made upon any woman or woman-child in his county, he shall at once give notice thereof to a judge of the court having criminal jurisdiction of said offense, who shall, as soon thereafter as conveniently may be, cause the person so assaulted to come before him, and shall forthwith examine her upon oath privately concerning the said matter. No person shall be present at such examination besides the said judge and the witness, excepting the clerk or stenographer appointed to take down her testimony, and one other person to be selected by the witness. The testimony shall be reduced to writing, signed by the deponent and attested by the judge before whom it is taken, and shall be by him delivered to the State's Attorney, who shall be at liberty to use it as competent testimony in any proceeding before any committing magistrate in which the matters therein testified to would be admissible evidence if testified to by the said deponent orally.

2. The said deposition taken as provided in the preceding section shall be competent evidence before any grand jury to the same extent as would the oral testimony of the deponent to the matters therein contained, unless the judge before whom the same was taken shall at the time of certifying thereto have endorsed upon it a memorandum to the effect that in his opinion the purposes of justice require that said deponent should testify orally before the Grand Jury.

3. Whenever any person shall be indicted for any offense testified to in any deposition taken under the preceding sections, the State's Attorney for the county shall forthwith furnish him with a copy of such deposition, and shall cause him as soon thereafter as conveniently may be to be brought before a judge of the court having criminal jurisdiction of the case and then and there confronted with the said deponent, whom the State's Attorney shall thereupon interrogate under oath touching her ability to identify the prisoner as the person whom she alleges to have assaulted her, and also as to such other matters as the judge shall deem relevant to the case. The said deponent may then be cross-examined by the prisoner or his counsel to the same extent as would be admissible in court if she there testified orally to all the matters embraced in the original deposition and her subsequent examination by the State's Attorney, and she may be afterwards reëxamined by the State's Attorney. The only persons allowed to be present at such examination, beside those allowed at the taking of the original deposition, shall be the State's Attorney, the accused and one counsel representing him. The whole testimony of the said deponent given at said subsequent examination in the presence of the accused shall be committed to writing, signed by the deponent and certified to by the said judge and annexed to her original deposition, and the said deposition and subsequent deposition so taken and certified, may be read in evidence to the jury at the trial of the case with the same effect as if the deponent had testified orally in court to all the matters therein contained. Provided, That the trial judge or judges may, in his or their discretion, at any time before the jury is sworn, if convinced that justice to the accused demands it, require the said deponent to testify orally in conrt by giving a reasonable notice thereof to the State's Attorney.

It is believed that the foregoing draft of an act provides for taking the testimony of women upon whom outrageous assaults have been made with all the privacy and delicacy compatible with a due regard for the rights of the accused. The preliminary examination by the judge, presumably a man of a fair degree of education and refinement, as well as of considerable experience in sifting evidence, with no one present excepting his amanuensis and such friend or relative of the deponent as she may desire to be with her in order to give her confidence and moral support in the distressing position in which she finds herself, made as soon as possible after the occurrence, would be as effective and at the same time as delicate a method of getting at the exact truth as could be well desired. The subsequent confronting her with the accused and her cross-examination by his counsel with the same privacy and before the same judge, whose duty it would be to see that this privilege of cross-examination should be restricted within proper limits and exercised with decency and propriety, would reduce to a minimum the painful embarrassments which must inevitably attend the situation. It will be noticed that, while the proposed law provides that the depositions taken under it may be read in evidence to the jury at the trial, it does not require them to be read aloud in the court room. The judge might well allow the jury to withdraw for a few minutes to their room while one of them could there read the deposition to the others, after which they could return to hear the other evidence in the case. The counsel for the accused having a copy of the deposition could in his arguments refer to so much of it as he might find necessary without going into all the details. It would, of course, be a grave breach of propriety for the State's Attorney to let the reporters see the paper, and would be greatly for the interest of the prisoner to prevent its publication, as nothing would be more likely to excite public indignation against him to such an extent as might lead. to his being lynched. The provisions clothing the judge with discretionary power to require the woman to testify orally before the grand jury and in open court at the trial are inserted to prevent any advantage being taken of the act by those abandoned characters who sometimes trump up unfounded charges of rape against wealthy or prominent citizens for the purpose of levying blackmail. Wm. Reynolds.

BALTIMORE, September, 1897.

THE INFLUENCE OF THE EIGHTEENTH NOVEL OF JUSTINIAN.

Justinian, conqueror and legislator, ruled with dazzling brilliancy over the Roman Empire of the East from 527 to 565 A.D. His generals brought to a successful issue the conquest of Africa and Italy. His juris consults gave to legal science that body of law known as the Corpus Juris Civilis. His fame as a legislator has easily survived that of conqueror. Truly Bulwer said, “The Pen is mightier than the Sword."

The Novels of Justinian, and later Emperors, mark the completion of the Corpus Furis. These constitutiones were enacted (535 to 565 A.D.) to add to and perfect the existing body of Roman law. The Emperor had an ideal excellence, so necessary in law, as the Constitutio Cordi nobis est attests: "It lies at our heart, conscript fathers, ever to regulate the cares of our mind most zealously, so that nothing begun by us remains imperfect."

The Eighteenth Novel (536 A.D.) introduced the all-important principle of cognation into the Roman system of law; which principle produced a transformation perhaps never before or since equalled in the law of property rights. Cognation is the opening wedge in the decline of the ancient patria potestas. The present Novel limits also the absolute disposition of property by testaments and provides a statutory portion for children legitimate and natural. The inception of individual legal equality is first met with in this Constitutio. It covers many points of procedure and among these, one in the subject of special pleadings, providing that a possessor defendant, who alleges title in answer to plaintiff's demand, and has legal title as mortgagee not specifically alleged, loses such title and forfeits possession to the claimant. The suggestion is made of the division of the paternal inheritance between children before death lest the succession be the cause of a "thousand quarrels to them."

I.

THE PRINCIPLE OF COGNATION.

The principle of cognation was known to other legal systems before incorporated in the Roman law. Religion, among the Hindus, called to the succession on failure of legitimate heirs, the son of an "appointed daughter." Sir Henry Maine, in "Early Law and Custom," page 91, says: "He is, in Roman phrase, a 'cognate,' a kinsman through women only, who according to the usage prevailing among all the more powerful races of mankind, either from the first or at a certain stage of their development, can not continue the family." "Some customs near akin to the Hindu usage of 'appointing' a daughter appear to have been very widely diffused over the ancient world, and traces of them are found far down in history. The daughter here becomes neither the true successor of her father,

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but a channel through which his blood passes to a male child, capable, according to the oldest nations, of sacrificing to him; and, according to the newer ideas, of taking his property and preserving the continuity of the household. Among the Athenians a father, fearing sonlessness, might have a son raised up to him by a daughter."

Legislation, on the other hand, introduced cognation to the Roman system of law in the reign of Justinian. Whether religion anciently in Rome, as in Greece and India, developed cognation, and at the time of the introduction of the law of the Twelve Tables it had gone into disuse, may be questioned. In the first third of the sixth century, A.D., agnation determined the line of descent.

By the law of the Twelve Tables, intestate property passed first to sui heredes, then to the nearest agnate, and finally to the gentiles. The sui heredes "were the agnatic descendants of the deceased who were subject to his immediate power. They belong to the household of the deceased by virtue of the patria potestas" (Sohm's "Institutes of Roman Law," p. 445). This law of succession by the Twelve Tables was unjust and inequitable in that it deprived emancipated sons and descendants of women entirely from the inheritance of the ancestor, preferring the agnates and gentiles.

Following and supplementing the law of the Twelve Tables, the prætorian edict gave the patrimony of the intestate by honorum possessio: First, to the children, emancipated and unemancipated; second, to sui heredes not including emanci