THE audience in the court-room arose and remained standing until the
judge in his black silk robe had entered and taken his place on the
bench. Then the audience resumed its seat, and the clerk began to read
the proceedings for the previous day. The ceremony attendant upon the
sitting of the Circuit Court of the United States carried with it an
impressive sense of majestic, imperial authority, and an air of grave,
judicial deliberation. It was the Government of the United States of
America, the spirit of supreme order and law moving through its servant,
and, next to the Great Ruler of Events, it was greatest. It had assumed
for the good of men the right to sit in judgment, and to say wherein lay
the justice of their complicated quarrels. Before it, every man's cause
was of equal import, and every man was of equal stature; bond or free,
one stood before it naked of influence, and with his shoulder made as
high as the shoulder of his fellow.
This is the theory. If it fails, it is because the law at best is but a
human device, and its servants, after all, are but men like the others.
The building in which the Federal Court held its session was a
substantial, handsome structure, and maintained a strange contrast to
the town in which it stood. The town was rough, miserable, uncouth;
the temporary habitation of men, struggling ever with the relentless
_ananke_ of things; in equal contrast to the officers of this court
was the audience in the great court-room. They were the pioneers of
civilization; a motley crowd in which the best and worst of human
society was mixed and intermixed. They were, for the most part, bronzed,
bearded, fearless examples of the inexorable law of the survival of the
fittest, but not all. Some were the reckless advance agents of those
hardy vices that follow close in the wake of empire,--devils too
villainous to be tolerated in the cities of the East, and too bold and
too wary to be stamped out by the deliberate machinery of the law.
Against these the officers of the court bore some evidence of polish.
They were exact, calculating men, bred to respect order, and obey and
maintain the customs of law. The contrast was significant, and one
recalled and understood the constant bitter conflict between the
judicial tribunals of the State and the judicial tribunals of the
Federal Government, bitterly waged and as yet undecided. From one
standpoint, this was the calm tribunal of the supreme power of the
land, providing the same rights and remedies on the very border of
its jurisdiction that it provided at the capital itself, favoring no
condition and acting as even-eyed as nature.
On the other hand, one understood how the remote Commonwealth held this
court to be the tribunal of a far off imperial government, seeking to
enforce laws and customs foreign and repugnant to the laws and customs
of its people. To them the Federal judge was a king's governor,
travelling with his retinue over a subjugated province, and enforcing
his edict by virtue of foreign armies quartered convenient to his hand.
And looking on from this point of view, one understood why the outpost
State hated this court so bitterly, and whence arose the fierce
clamor against it. One understood how the far West smarted under its
injunctions, and denounced them as the royal mandates of an emperor's
consul, and how the far South collided with this tribunal and cried out
against it to the Congress of the United States in a memorial clanging
like a bell.
So the conflict was easy to understand, and it was easy to appreciate
how large the spectre of discord loomed, and most difficult indeed to
force the problem to some happy end.
When the clerk had finished, the marshal called the jury, and struggled
bravely, but at times unsuccessfully, with the marvellous tangle of
names. Indeed, if the list of this panel had been placed before a
student of philology, he would have required no further history of the
civilization of the Southwest. When the marshal had ended, the judge
directed that the jury should be dismissed until two o'clock, and when
order was again restored, the judge turned and looked down gravely from
the bench.
“This court,” he said, “is ready to pass upon the matter taken under
advisement yesterday afternoon. It seems that one Hiram Martin, a
citizen of and a resident in the State of New Mexico, brought an action
in this court against Ambercrombie Hergan and others to recover the sum
of fifty thousand dollars, money, as it is said, borrowed by the said
Hergan. The declaration contained the common counts _in assumpsit_, with
which was filed, in lieu of the bill of particulars, a promissory
note, made by the said Hergan to the said plaintiff, calling for fifty
thousand dollars, and endorsed by one Randal and another Culver-son.
This note, in addition to the matter usually had in such instruments,
recited that it was given in accord with a certain agreement of even
date therewith, made and entered into by the parties to the said
note. The case coming on for trial, the defendants, by their attorney,
appeared and filed their plea exhibiting the said agreement, maintaining
that the said note was given for money loaned for the purpose of being
used in a gambling venture, and was, therefore, void at law. An issue
being had upon the said plea, the case was put to trial, and the said
agreement having been admitted, the defendants, by their attorney, moved
this court to exclude the evidence, and direct the jury to find for the
defendants; which motion this court took time to consider.
“The facts herewith concerned are involved in no controversy, and
the agreement being couched in plain terms, admits of no doubtful
construction. It would seem that the defendant Hergan called at the
gambling house of one Crawley, a resident of this State, and requested a
private interview with the said Crawley and the plaintiff; that in this
interview Hergan explained that he was considering what it pleased him
to denominate 'a gambling venture in oil,' and solicited the two men to
join him in the venture. This they declined to do, but suggested
that they would advance to Hergan such money as he might need upon a
promissory note with good security.
“It appears that some controversy arose as to the rate of interest to be
paid; and a division of the profits was suggested in lieu of the larger
per cent. This matter was finally concluded by the plaintiff and the
said Crawley advancing the said sum, and taking therefor the note filed
in this cause, and in addition thereto entering into this agreement in
writing with the said Hergan, wherein it is set forth that the money
loaned is to be used by the said Hergan for the express purpose of 'a
gamble in oil,' and for no other purpose; and that if any profit should
result from said gambling venture, the said plaintiff and the said
Crawley were to receive one-eighth of said profits. It seems that the
money was paid and presumably used by Hergan for the purpose as stated.
Afterward the note was presented for payment, and being refused, was
duly protested, and later sued upon in this court.
“It is maintained by the defendants that this transaction was contrary
to public policy, and that the money, having been loaned for a known
illegal purpose, cannot be recovered in a judicial tribunal, but falls
Within the purlieus of those matters which are _par se ex turfe causa_,
and for which the law provides no remedy. On the contrary, it is urged
by counsel for the plaintiff that the transaction as between the parties
to this suit was entirely commercial and innocent; that the plaintiff is
a mere lender of money in a _bona fide_ transaction, and is in no wise
a party to any illegal proceeding, and that the mere use to which the
money was put is a matter of no moment.
“The law, being for the welfare and the protection of human society,
refuses to recognize and enforce certain contracts had among its
citizens, when those contracts are founded in moral turpitude or
inconsistent with the good order or solid interests of society.
“'No people,' declares Chancellor Kent in his _Commentaries_, 'are
bound or ought to enforce or hold valid in their courts of justice any
contract which is injurious to the public rights or offends their morals
or contravenes their policy or violates a public law.' Hence contracts
having an illegal or immoral consideration, or tending to the violation
of law or the debauching of public morals, are held to be _contra bonas
mores_, and are void.
“It is said that the object of all law is to suppress vice, and to
promote the general welfare of society, and it does not give its
assistance to persons to enforce a demand originating in their breach or
violation of its principles and enactments. It is not necessary that the
law expressly prohibit or enjoin an act. It may impliedly prohibit or
enjoin it. In either case a contract in violation of its principles is
void under the wholesome maxim _ex turpi causa non oritur actio_.
“It may happen, and, indeed, frequently does happen, that the individual
suffers great hurt from this sweeping policy of the law, but it is held
that the good of the commonwealth rises above the mere benefit of the
individual citizen, and that where the welfare of the whole of society
is involved, the law will not pause to consider the injury entailed upon
the mere unit. Hence the policy of government in the exigencies of
war, when protection must be had against violence, and the policy of
government in the peaceful administration of the law, when protection
must be had against vice.
“Thus gambling, wagering, and all gambling and wagering contracts
and transactions are illegal as against public policy, since they are
repugnant to the well-being of society, fraught with vice, pregnant with
demoralization, and corrupting alike to the youth and to the aged, as
they inspire a hope of reward without labor.
“It is significant that in matters of this nature human society has been
progressive. Under the common law of England wagers were not unlawful
or unenforceable, but the statute of 9th Anne followed and altered the
common law, and the statutes of 8th and 9th Victoria altered it yet
farther, and in the United States every separate Commonwealth has its
respective statute striking at this vice.
“I think it will not at this day be denied that all transactions in
stocks, by way of margin, settlement of differences, and payment of
gains or losses, without intending to deliver the stocks, is a gambling
or wagering operation which the law does not sanction, and will not
carry into effect; and it has been held in the Supreme Court of the
United States in the case of Irwin vs. Williar, 'If under the guise of
a contract to deliver goods at a future day the real intent be to
speculate in the rise or fall of prices, and the goods are not to be
delivered, but one party is to pay to the other the difference between
the contract price and the market price of the goods at the date fixed
for executing the contract, the whole transaction is nothing more than
a wager, and is null and void.' And that 'Generally in this country
wagering contracts are held to be illegal and void as against public
policy.'
“Indeed the courts of the land have gone to the extremity of denouncing
in no uncertain terms the dangerous character of these illegal ventures.
Judge Blauford, in the case of Cunningham vs. The National Bank of
Augusta, in speaking of these transactions termed 'futures,' declares:
'If this is not a speculation on chances--a wagering and betting between
the parties, then we are unable to understand the transaction. A betting
on a game of faro or poker cannot be more hazardous, dangerous, or
uncertain. Indeed it may be said that these animals are tame, gentle,
and submissive compared to this monster. The law has caged them and
driven them to the den. They have been outlawed; while this ferocious
beast has been allowed to stalk about in open mid-day with gilded signs
and flaming advertisements to lure the unhappy victim to its embrace
of death and destruction. What are some of the consequences of these
speculations in 'futures'? The faithful chroniclers of the day have
informed us, as growing directly out of these nefarious practices,
that there have been bankruptcies, defalcations of public officers,
embezzlements, forgeries, larcenies, and deaths. Certainly no one
will contend for a moment that a transaction fraught with such evil
consequences is not immoral, illegal, and contrary to public policy.'
“In so far as this doctrine is concerned with the case at bar, it is
certain that the parties understood and intended that the money loaned
should be used for the purpose of engaging in an illegal speculation in
oil,--'a gamble in oil,' as it is termed in the agreement, and that such
gambling transactions are against public policy and the law of the land.
But it is contended by learned counsel that all this can have no bearing
upon the case at bar for the reason that in the cases heretofore cited
announcing these conclusions of law, the litigants were the parties who
dealt with or for each other, and were the immediate parties engaged in
an unlawful gambling venture, and the ones to gain or lose directly
by the venture, and not a mere stranger who loaned money to another to
engage in such transactions, and having but an undetermined interest in
the result; and that the law will not lend its aid to a further wrong.
The defendant having committed one wrong cannot be permitted to use his
first wrongful act as an instrument whereby to effect a second wrongful
act.
“The objection is ingenious, but I judge fully met by the declaration
of Lord Mansfield in Holman's case: 'The objection,' said the learned
judge, 'that a contract is immoral or illegal as between plaintiff and
defendant, sounds at all times very ill in the mouth of the defendant.
It is not for his sake, however, that the objection is allowed, but it
is founded on the general principle of policy which the defendant has
the advantage of, contrary to the real justice as between himself and
plaintiff, by accident, if I may so say. The principle of public policy
is this: _ex dolo malo non oritur actio_. No court will lend its aid to
a man who founds his cause of action upon an immoral or illegal act.
If from the plaintiff's own statement or otherwise the cause of action
appear to arise _ex turpi causa_, or the transgression of a positive law
of this country, then the court says he has no right to be assisted. It
is upon that ground the court goes, not for the sake of the defendant,
but because it will not lend its aid to such a plaintiff.'
“This claim of the plaintiff to this action is unsound for the further
reason that any promise, contract, or undertaking the performance of
which would tend to promote, advance, or carry into effect an object
or purpose which is unlawful, is itself void and will not maintain
an action. The law which prohibits the end, will not lend its aid in
promoting the means assigned to carry it into effect. Nor is it
possible for an act contrary to law to be made the basis of a contract
enforceable in courts of law. Hence when one lends money to another for
the express purpose of enabling him to commit a specific unlawful act,
and such act be afterwards committed by means of the aid so received,
the lender is a _particeps criminis_, and the law will not aid him to
recover money advanced for such a purpose, and much less would it assist
him, if, as in this case he retained an interest in the result of the
venture.”
It was very unusual for counsel to interrupt the judge in the delivery
of his opinion, but at this point the attorney for Martin arose.
“If your honor please,” he said, “this court is taking away the remedy
of the plaintiff, and permitting the wrong to stand. Does this court
reverse the ancient doctrine upon which the theory of human justice has
its eternal basis, the ancient doctrine that the law will always provide
a remedy for a wrong?”
The faintest shadow of a smile flitted over the judicial face.
“That sage maxim: '_lex semper debit remédiant_,'” answered the judge,
“is a gigantic error couched in very good law Latin. The motion to
exclude the evidence is sustained, and the jury will find a verdict for
the defendants.”
X
THE Governor's machine marched gravely out of the Circuit Court of the
United States and down the wide steps, the Major leading, the Executive
following second, and the Honorable Ambercrombie Hergan bringing up
the rear, every man as silent and as solemn as a Japanese diplomat. The
machine passed through the great arched doorway and directly across the
street to “The Happy Maria” saloon, an institution with a variegated
past. The machine filed in through the door and lined up before the bar
as mysteriously as a country delegation in a caucus.
The Bartender of “The Happy Maria” was a lame actor from St. Louis. When
he turned and beheld the solemn array, he stepped back and tapped his
forehead tragically with his fingers.
“Ha!” he muttered, “it is Ulfius and Brastias and Sir Bedivere.”
To this no response was made, except that the Major raised his hand and
pointed to the bottle of “Dougherty” reposing on the second shelf beside
the box of “scrap” and the proprietor's pistol-belt. The bartender
hurried forward, took down the bottle, placed three little glasses on
the bar and began to fill them. When he came to the third glass, he
paused and set down the bottle. A puzzled expression gathered on his
face. He thrust his forefinger into his mouth and began to lisp:
“Be there two or be there three
In our king's companee?”
The Major turned just in time to catch a glimpse of the Governor as he
vanished in a telegraph office next door; then he swung around toward
the barkeeper with the dramatic abandon of a professional at a benefit.
“Pour on, good seneschal,” he cried; “it is the man who would be
married. He hastens with glad tidings to the well beloved. He will
return.”
_(See the famous opinion of Henry St. George Tucker, President of the
Supreme Court of Virginia, in the leading case of Gallego's Executors
vs. Attorney General, 3 Leigh, 450; also the opinion of John Marshall,
Chief Justice of the United States, in the case of the Trustees of
the Philadelphia Baptist Association el at. vs. Hart's Executors, 4
Wheaton's U. S. Reports, 330; also Knox vs. Knox's Executors, 9 W. Va.,
125; 2y W. Va., 109, and cases cited.)_