As long as there exists the right of appeal there is a chance of
acquittal. Otherwise the right of appeal would be a sham and an insult
more intolerable, even, than, to the man convicted of murder, the right
to say why he should not receive the sentence which nothing he may say
will avert. So long as acquittal may ensue guilt is not established.
Why, then, are men sentenced before they are proved guilty? Why are
they punished in the middle of proceedings against them? A lawyer can
reply to these questions in a thousand ingenious ways; but there is
no answer. Let the “legal fraternity” reflect that a lawyer is one
whose profession it is to circumvent the law; that it is a part of his
business to mislead and befog the court of which he is an officer; that
it is considered right and reasonable for him to live by a division of
the spoils of crime and misdemeanor; that the utmost atonement he ever
makes for acquitting a man whom he knows to be guilty is to convict
a man whom he knows to be innocent. The methods of our courts, the
traditions of bench and bar, exist and are perpetuated, altered and
improved, for the purpose of enabling lawyers as a class to exact the
greatest amount of money from the rest of mankind. The laws are mostly
made by lawyers, and so made as to encourage and compel litigation.
By lawyers they are interpreted and by lawyers enforced for their own
profit and advantage. The over-intricate and interminable machinery
of precedent, overrulings, writs of error, motions for new trials,
appeals, reversals, affirmations and the rest of it, is mostly a
transparent and iniquitous system of exaction. What remedy would I
propose? None. There is none to propose. The lawyers have us and mean
to keep us.
The villainy of making men suffer for crimes of which they may
eventually be acquitted is consistent with our entire system of laws—a
system so complicated and contradictory that a judge simply does as he
pleases, subject only to the custom of giving for his action reasons
which at his option may or may not be derived from the statutes. He may
sternly affirm that he sits there to interpret the law as he finds it,
not to make it accord with his personal notions of right and justice.
Or he may declare that it could never have been the legislature’s
intention to do wrong, and so, shielded by the useful phrase _contra
bonos mores_, pronounce that illegal which he chooses to consider
inexpedient. Or he may be guided by either of any two inconsistent
precedents, as the better suits his purpose. Or he may throw aside both
statute and precedent, disregard good morals, and justify the judgment
that he wishes to deliver by what other lawyers have written in books,
and still others, without anybody’s authority, have chosen to accept
as a part of the law. I have in mind judges whom I have observed to
do all these things in a single term of court, and could mention one
who has done most of them in a single decision. The amazing feature
of the matter is that all these methods are lawful—made so, not by
legislative enactment, but by the judges. Language can not be used with
sufficient lucidity and positiveness to bind them.