SCHOOL OF LAW 
 LIBRARY 
 
 THE GIFT OF 
 
 MAY TREAT MORRISON 
 
 IN MEMORY OF 
 
 ALEXANDER F MORRISON
 
 KF 
 
 315 
 
 FALLACIES 
 OF THE LAW 
 
 BY 
 
 HENRY S. WILCOX, 
 
 !\ 
 OF THE CHICAGO BAR. 
 
 AUTHOR OF 
 
 POIBLES OF THE BENCH, FOIBLES OF THE BAR, 
 
 FRAILTIES OF THE JURY, A STRANGE FLAW, 
 
 THE TRIALS OF A STUMP SPEAKER, 
 
 ETC. 
 
 Published by 
 
 LEGAL LITERATURE COMPANY, 
 CHICAGO, ILL.
 
 Copyright, 1907, 
 
 by 
 
 HENRY S. WILCOX. 
 
 Entered at Stationers Hall, 
 
 LONDON, ENG.
 
 PREFACE. 
 
 THIS VOLUME is the last of a series projected 
 more than a year ago relating to court matters 
 and designed to furnish information to those who 
 ^ may be interested concerning the deficiencies of 
 bench, bar, jury and the law. The subject of 
 ^ this volume is so large that it has been necessary 
 56 to cram many facts into a small compass, and 
 this has prevented the use of much ornamenta- 
 tion. The author has striven to strip the naked 
 O truth down to the very bone, relying upon the 
 5 importance of the subject to win the attention of 
 <5 the reader. 
 
 Some attention has been called to the funda- 
 "^ mental errors in the organic laws of our national 
 government and the methods employed in pro- 
 as viding officials, but the most space has been de- 
 voted to considering that great body of doctrine 
 known as the common law, which is in force in 
 H: every state in the Union except Louisiana. This 
 system is mainly relied upon to determine our 
 civil rights, duties and responsibilities, and to 
 provide redress for wrongs. It was not devised 
 by any law-giver. It is not like a garden which
 
 4 PREFACE. 
 
 some expert gardener has planted and trimmed, 
 but is like a thicket which has been sown by the 
 wind and trimmed by the whirlwind, where every 
 kind of seed that could find a lodgment has grown 
 the best it could, and trees of beauty and utility 
 contend with briars, weeds and underbrush. Or 
 perhaps it may be likened unto a garment made 
 by a bungler in remote antiquity and on which 
 every generation since has placed some patches, 
 until it resembles a crazy-quilt in its variety of 
 color and texture and is without any of the har- 
 mony that ordinarily pertains to that article. 
 
 The laws defining our rights originated in 
 compromises made between tyrants who ruled 
 kingdoms or empires and tyrants who ruled 
 dukedoms or manors. Many laws imposing du- 
 ties arose out of the concessions of landlords and 
 masters to tenants and serfs. The laws which 
 provide remedies have emanated from the edicts 
 of kings and military chieftains who, during brief 
 periods between wars and dissipations, have 
 devoted some time to devising methods for re- 
 dressing the greater atrocities. 
 
 As the generations of mankind have come and 
 gone a few new features have been invented, and 
 many patches in the shape of amendments have 
 been placed by legislators, or produced by the
 
 PREFACE. 5 
 
 ingenuity of judges; so we now have a sort of 
 hodge-podge thrown together by accidents of 
 antiquity and worn into a kind of homogeneous 
 mass by the grinding friction of judicial conflicts. 
 The enormous bulk of this mass prevents any 
 criticism in minute detail. The general reader 
 would not have the patience to read such a pro- 
 duction. The author has merely undertaken to 
 pick out a few of the absurdities whose peaks ap- 
 pear the loftiest and to direct special attention to 
 them as typical parts of the great chain. 
 
 One whose attention has not been called par- 
 ticularly to the many defects in our laws can not 
 realize how very bad they are. It would be diffi- 
 cult to invent a more cumbersome, complicated 
 and bulky machine than the system of jurispru- 
 dence of this country. Indeed, it would be quite 
 difficult for a writer in any language, however 
 great his command of words might be, to over- 
 state some of the faults that inhere in the 
 system. 
 
 It is hoped that the critics, who have dealt 
 kindly with the other volumes, may still have pa- 
 tience to review this in a charitable spirit. The 
 bearer of bad tidings is likely to be unwelcome, 
 and especially so if they pertain to our dearest 
 interests. The potion intended to purge us of
 
 6 PREFACE. 
 
 our faults may be so bitter that no amount of 
 sugar coating can sweeten it, and yet to be cured 
 we must take it. 
 
 In the four volumes of this series the author 
 has offered his countrymen the gleanings of his 
 professional life for the purpose of assisting 
 those who wish to improve the present methods. 
 If their faults offend the reader's sensibilities, the 
 author begs indulgence on the ground of the pur- 
 pose that inspired them. Like the widow's mite, 
 may they be valued as expressions of a desire to 
 aid a just cause to the full extent of the giver's 
 capacity.
 
 CONTENTS. 
 
 Page. 
 
 PREFACE .... 3 
 
 CHAPTER I. 
 THE LAW: ITS FUNCTIONS AND ATTRIBUTES 9 
 
 CHAPTER II. 
 UNJUST DISCRIMINATIONS - - - -20 
 
 CHAPTER IIL 
 
 UNJUST RESTRAINTS 29 
 
 CHAPTER IV. 
 UNJUST DUTIES - - - 4.0 
 
 CHAPTER V. 
 UNJUST DUTIES Continued - - - 48 
 
 CHAPTER VI. 
 FALLACIES OF GENERAL LAWS - - - 60 
 
 CHAPTER VII. 
 FALLACIES OF GENERAL LAWS Continued 75 
 
 CHAPTER VIII. 
 LEGAL FICTIONS - - 88 
 
 CHAPTER IX. 
 DEFECTS IN REMEDIES PROVIDED BY LAW 98
 
 8 CONTENTS. 
 
 Patre. 
 CHAPTER X. 
 
 DEFECTIVE JUDICIAL MACHINERY - - 114 
 
 CHAPTER XL 
 DEFECTIVE JUDICIAL MACHINERY Continued 126 
 
 CHAPTER XII. 
 LAWS CONCERNING EVIDENCE - - -135 
 
 CHAPTER XIII. 
 LAWS CONCERNING EVIDENCE Continued 146 
 
 CHAPTER XIV. 
 EFFECT OF A JUDGMENT - - 157 
 
 CHAPTER XV. 
 
 FUNDAMENTAL ERRORS - - - 170 
 
 CHAPTER XVI. 
 
 UNJUST DISTRIBUTION OF POLITICAL POWER 181 
 
 CHAPTER XVII. 
 
 SURVIVALS OF MONARCHY - ... 191 
 CHAPTER XVIII. 
 
 CONCLUSION 200
 
 CHAPTER I. 
 
 THE LAW : ITS FUNCTIONS AND ATTRIBUTES. 
 
 ALL believe that they have rights and duties 
 which should not be violated, and that for every 
 violation there should be some form of redress; 
 but what these rights and duties are and how 
 their violations should be redressed are ques- 
 tions relative to which there has ever been and 
 perhaps forever will be a great diversity of opin- 
 ion. As a necessary agency for protecting these 
 rights, enforcing these duties and redressing 
 their violations, governments have been insti- 
 tuted and tolerated and rules of conduct made. 
 These rules, called laws, are efforts on the part 
 of those who control the government to prescribe 
 the rights and duties of the governed and how 
 their violation should be redressed. Thus a law 
 may be a mere tool of a tyrant who has devised 
 it to despoil the governed, or it may be a bul- 
 wark of liberty erected by the governed to fence 
 themselves from arbitrary power. It may be the 
 creature of a conspiracy of powerful persons to 
 obtain an unfair advantage over their fellows, or
 
 I O F'ALJLA CIB$ OF THE LA W. 
 
 it may -b the, cunningly- contrived scheme of 
 venal legislators to saniibag commercial inter- 
 ests out of bribe money. 
 
 All honest laws, worthy to adorn the statute 
 books of a free people, should possess certain 
 attributes : 
 
 i. If a law defines a right or imposes a duty 
 it should be in accord with the opinion generally 
 prevalent among the governed relative to such 
 rights and duties. A law may conform to prov- 
 erbs in ancient books or correspond with pre- 
 cepts which are supposed to emanate from a 
 deity, or it may have the sanction of the wisest 
 moral philosophers and seers, yet if it has not 
 behind it the general desire of the community 
 for its enforcement it will soon become a dead 
 letter and an incumbrance upon the statute. 
 This would seem to be self-evident, and yet 
 members of the legislature frequently vote for 
 laws which they themselves do not expect to 
 obey, and various moral leaders and teachers 
 clamor loudly for enactments which they do not 
 expect to enforce, and have no reason to believe 
 the community will enforce or obey. This 
 causes the statutes to be enlarged beyond the 
 ordinary power of comprehension and the com- 
 munity to be filled with law breakers, many of
 
 FALLACIES OF THE LAW. II 
 
 whom are unconscious of the fact. These un- 
 necessary statutes are seldom used except for 
 the purpose of private malice or to assist the 
 dishonest in repudiating their contracts. 
 
 2. All laws should be written in familiar 
 words, so that they can be easily read and un- 
 derstood by those required to obey them. 
 
 All statute laws are couched in words and 
 phrases having special and technical meanings 
 that are not familiar to the greater portion of 
 those who might read them. Many are not 
 clear to lawyers, and even judges find it difficult 
 to ascertain their meaning. 
 
 Only a small portion of our laws are in the 
 statutes. A much larger bulk is called the 
 "common law," which is even more difficult to 
 ascertain and understand than acts of the legis- 
 lature. To find this law one must explore many 
 treatises and decisions of courts more or less 
 conflicting. Even the indices to the numerous 
 volumes containing it are so many and so diffi- 
 cult to understand that they afford no knowledge 
 to the layman. Only lawyers have any definite 
 knowledge of these laws, and the most learned 
 of them hardly dare hazard an opinion without 
 a special search often of the most tedious 
 character.
 
 12 FALLACIES OF THE LAW. 
 
 Much has been written in condemnation of 
 the tyrant who wrote his edicts in small letters 
 and posted them so high that they could not be 
 read. For all practical purposes our present 
 system of jurisprudence is quite as unavailable 
 to the lay members of the community. If those 
 who have no opportunity to learn of the existence 
 of a law are thereby caused to violate it, the 
 violation is a mere accident. How can any 
 government justly punish an accident when it 
 has caused it or contributed to cause it by print- 
 ing laws in an unfamiliar tongue ? 
 
 3. Laws should emanate from a supreme au- 
 thority, so that their force and validity will be 
 absolute and certain. If that which purports to 
 be law and is relied upon as such finally proves 
 invalid, it is but a snare. It is bad enough to 
 be deceived by the pirates and buccaneers of 
 trade and finance : to be thus treated by the 
 government we sustain is intolerable. 
 
 Many of our laws are infected with the virus 
 of uncertainty because they emanate from infe- 
 rior sources. Laws enacted by state legislatures 
 may be declared invalid by the courts because 
 the judges believe they do not accord with the 
 constitution of the state or of the United States, 
 or with laws passed in pursuance of the latter.
 
 FALLACIES OF THE LAW. 13 
 
 The most solemn act of a state legislature may 
 in a prosecution for crime be held invalid by a 
 country justice of the peace and the defendant 
 discharged; for in such cases no appeal is al- 
 lowed the prosecution. A single judge may 
 thus nullify an act of congress, the passage of 
 which has consumed much of the time of the 
 congress and the President for an entire session. 
 After a subsidy has been spent in framing a 
 statute and millions in arranging to obey it the 
 breath of a court may blow it into nothingness. 
 
 If the constitution is so difficult to understand 
 that representatives of the people, sworn to sup- 
 port it, can not interpret it without the aid of a 
 court, why not have a court determine the con- 
 stitutionality of the proposed enactments before 
 they are finally voted upon by the legislative 
 body? 
 
 That nebulous mass of rules and quibbles 
 which we call the "common law" has no abso- 
 lute authority as its basis. Some portions of 
 it are supposed to have originated in statutes 
 enacted in remote antiquity but now lost, or to 
 have come from ancient customs existing "from 
 a time whereof the memory of man runneth not 
 to the contrary." Neither supposition can be 
 shown to be true. So far as we know most of it
 
 14 FALLACIES OF THE LAW. 
 
 has been extracted from the opinions of judges 
 as to what the law ought to be. Where there 
 were no legislative enactments affecting the 
 questions the judges of England and this country 
 assumed there ought to be, and instead of refus- 
 \ing relief invented a rule and declared that to be 
 .'the law which they thought should be. Deci- 
 sions thus made do not have absolute authority 
 except in the particular case where rendered. 
 The same court or any other court may disregard 
 them, yet they have a kind of weight in guiding 
 the subsequent decisions of courts when the 
 same question is considered, and may turn the 
 scale one way or the other. The weight such 
 decisions have depends upon the estimate the 
 trial judge has of the ability of the members of 
 the court that made the decision, and his notion of 
 the similarity that exists between the two cases. 
 In this way the centuries have produced an 
 immense library of books which contain the de- 
 cisions of high courts, the comments of writers 
 thereon, and extracts and digests therefrom. 
 Every year has added to the mass until a mere 
 catalogue of the books in a law library is nearly 
 as large as the family bible. Thus a situation is 
 created which entails great labor upon the courts 
 and the lawyers who undertake to aid them in
 
 FALLACIES OF THE LAW. 15 
 
 deciding cases. A wide field is thereby opened 
 for argument. Such arguments depend for 
 strength upon the number of decisions in similar 
 cases that are cited in support of the position 
 taken. Much time is required in the prepara- 
 tion of these arguments, and thus the expense of 
 a trial is made so great that it often exceeds the 
 amount involved in the suit. The most thor- 
 ough research that can be made rarely succeeds 
 in making certain the law relative to the disputed 
 point. All is but guesswork until the highest 
 court to which the case can be taken has decided 
 it and denied a petition for a rehearing. 
 
 The laws should be made by a body having 
 supreme authority, and published so that they 
 can be read without difficulty. Then they could 
 be comprehended and relied upon as real laws 
 and not mere opinions which a judge may follow 
 or not as he pleases. 
 
 4. The number of laws should not be so great 
 as to make a knowledge of them impracticable 
 to those who are required to obey them. When 
 the bulk is swollen beyond the power of com- 
 prehension by the ordinary person the force of 
 the whole mass is seriously weakened. We have 
 far too many laws. If we leave out the so called 
 "common law," which no one can know abso-
 
 1 6 FALLACIES OF THE LAW. 
 
 lutely, because it has no real and certain exist- 
 ence, and take only our legislative enactments 
 and the ordinances passed by cities in pursuance 
 thereof, the bulk is still enormous. It is probable 
 that no citizen of the city of Chicago knows one- 
 tenth of the ordinances that have been passed 
 to govern him. The legislature continues to 
 pass, amend and supplement the laws, until the 
 compound has become so prodigious that even 
 those who voted for the laws forget that they are 
 in existence. The passion for law-making is so 
 great that no state or territory is without a sur- 
 plus. The soil of a country may be too poor to 
 raise cacti or jack-rabbits, and yet be rich enough 
 to produce an immense crop of legislative en- 
 actments. Acts and acts amending acts multiply 
 like microbes, until no one, unless compelled to 
 do so, will read the books containing these legis- 
 lative fulminations. One would suppose from 
 this that the rights of an American citizen are so 
 important and numerous that they can not be 
 stated in a reasonable compass, or that his duties 
 are so intricate that it takes a wagon-load of 
 books to describe them, or that the number of 
 crimes which he is likely to commit are so hard 
 to define that merely stating them is a mighty 
 task. Neither assumption can account for the
 
 FALLACIES OF THE LAW. 17 
 
 quantity of statutes that encumber our shelves. 
 The more rights we have the less the number of 
 words necessary to state them. It is the limita- 
 tions, and not the rights, that require amplifica- 
 tion. These ponderous volumes of statutes have 
 emanated from the attempts of legislatures to 
 go into particulars and regulate all the common 
 affairs of life in minute detail. 
 
 Laws should state general principles where 
 they are intended to apply generally, and where 
 they apply only to a special vocation they should 
 state general principles applying to that voca- 
 tion. The people generally could then easily 
 inform themselves of the general laws, and those 
 engaged in a particular vocation could learn the 
 laws appertaining to it as a part of the technical 
 knowledge of that vocation. The general rules 
 thus clearly stated could be applied by the intel- 
 ligence of the individual to the particular ques- 
 tion. If such a method was adopted the book 
 containing the laws need not be large. The 
 entire Ten Commandments do not contain as 
 many words as many a single section of a state 
 statute or city ordinance. This multiplication 
 of words rarely makes the statute clearer or aids 
 in its construction. It usually makes it more dif- 
 ficult to comprehend and enforce.
 
 1 8 FALLACIES OF THE LAW. 
 
 5. The law should be just. The desire for 
 justice is strong in every human breast. Even 
 animals exhibit pain when they see favoritism 
 extended to their associates. Any law which 
 does not express the common idea of justice in 
 the community will not be enforced and will be 
 generally despised. Persons often differ in the 
 opinions they have formed relative to justice; 
 nevertheless each person will contend for his 
 own, and many, rather than be deprived of that 
 which they believe to be due them, will sacrifice 
 property, and even life. There can be no social 
 peace in any community until its members have 
 reached some agreement as to what are the just 
 rights of each, and all have been made secure in 
 those rights. Notwithstanding the great diver- 
 sity of opinion among men as to what is justice 
 in particular cases, in law justice must be a syno- 
 nym for equality. If a law places a greater bur- 
 den upon one member of the community than 
 upon another under exactly the same circum- 
 stances it is not considered just. A law which 
 deprives one member of rights allowed to others 
 similarly situated, or confers upon one a benefit 
 which is not, as far as possible, conferred upon 
 all others thus situated, violates the principles of 
 justice. Measured by this standard, most gov-
 
 FALLACIES OF THE LAW. 19 
 
 ernments must be considered unjust, and ours is 
 not free from fault. 
 
 6. The laws should afford redress for wrongs 
 sustained, and this redress, to be effective, must 
 be sure, prompt and complete. They should ac- 
 curately measure the quantity of redress afforded 
 and provide the legal machinery by which it can 
 be obtained. If this machinery be so complex 
 and ill adjusted that it can be used only with 
 great difficulty; if it be encumbered with many 
 clogs and hinderances that cause frequent inter- 
 ruptions, delays and breakdowns; or if the em- 
 ployment of the machine causes so large expense 
 that the redress is not worth its cost, the laws 
 providing for such redress will be mere illusions. 
 Many such defects inhere in our laws. 
 
 The following chapters will first consider 
 some unjust features and general defects in the 
 laws, and then the inefficiency of the machinery 
 and rules provided for redressing grievances, 
 and conclude by pointing out certain funda- 
 mental fallacies in the organic structure of the 
 general government.
 
 CHAPTER II. 
 
 UNJUST DISCRIMINATIONS. 
 
 LAWS that discriminate between members of a 
 community should have a just reason for such 
 discrimination. Consider a few illustrations: 
 About half of our population is denied equal 
 rights at the ballot-box on account of sex. In 
 most of the states the members of the female sex 
 have no right to vote whatever; in some they vote 
 for candidates for certain offices, and in a very 
 few they have full suffrage. The function of 
 voting is not a sex function. The necessary 
 qualifications are intellectual and moral, and not 
 sexual. Why then should the best and wisest 
 woman be disfranchised and the lowest grade of 
 male intelligence be given the ballot ? Note an- 
 other sex discrimination : a female arrives at law- 
 ful age at eighteen ; a male must wait until he is 
 twenty-one. The ability to manage one's own 
 affairs depends on intelligence instead of sex. 
 Why should the girl who may never get old 
 enough to vote become competent to make a legal 
 contract three years earlier than her brother?
 
 FALL A CIES OF THE 'LA W. 2 1 
 
 There are also laws relating to property and laws 
 punishing certain acts of immorality where a like 
 discrimination is made on account of sex. Why 
 should not all rights conferred by law on man be 
 allowed to woman on the same terms ? Sex does 
 not change the character of the matter which is 
 the subject of legislation. 
 
 Kinship is another reason given for discrimi- 
 nation. The laws of many nations bestow po- 
 litical power upon persons on account of kinship. 
 We consider this practice unjust, and yet we 
 tolerate laws that distribute the property of de- 
 ceased persons to their next of kin. 
 
 Without the aid of government no one could 
 possess more property than he could defend by 
 his own prowess, and at his death his dominion 
 over it would cease. Our laws protect the holder 
 of property in the possession of his property and 
 place no limit upon the amount he may acquire. 
 One person more greedy and clever than others 
 may acquire vast areas of land and enormous 
 quantities of personal property, and exclude all 
 others from its enjoyment by the power of the 
 government. Multitudes may thus be forced to 
 endure great need in a land of plenty. This is 
 tolerated on the theory that it promotes the gen- 
 eral welfare. When the possessor of this great
 
 22 FALLACIES OF THE LAW. 
 
 fortune is about to die, the laws permit him with 
 his dying hand to subject it to his will for many 
 years after his death and to devise it to whomso- 
 ever he chooses. If, however, he does not choose 
 to make any disposition of it, then the law, 
 instead of returning it to the community for the 
 benefit of all the people, strives to find some 
 blood relative of the deceased ; and if successful, 
 it confers the estate upon him. By this law a 
 stranger to the deceased, or even his bitterest 
 enemy, may become the beneficiary. Is there 
 any just reason for this discrimination ? This 
 practice frequently injures those who receive the 
 property: getting that which they have not 
 earned, the recipients have no just appreciation 
 of its value and they are soon surrounded by 
 temptations which they are not accustomed to 
 resist, and the estate is squandered to enrich the 
 most vicious elements in the community. 
 
 Taxation is another field where there is great 
 discrimination. Governments are expensive, and 
 means for defraying expenses are usually ob- 
 tained by levying taxes. Justice requires that 
 each person receiving the protection of the govern- 
 ment should pay an equal share in the necessary 
 expenses of that protection. If the government 
 also provides him or his dependents with instruc-
 
 FALLACIES OF THE LAW. 23 
 
 tion, he, if able, should pay his proportionate 
 share of the cost of that instruction. If he has 
 property protected by the government he should 
 contribute that proportion of the expense of such 
 protection that his property bears to the common 
 mass thus protected. This rule would produce 
 at least three forms of taxation : 
 
 1. A per capita tax; where each member of 
 the community would pay for the protection of 
 his person. 
 
 2. A property tax; where each would pay in 
 proportion to the value of -the property he pos- 
 sesses. 
 
 3. An educational tax; where each would pay 
 his proportion of the expenses of education of 
 himself and his dependents. 
 
 Many states have no per capita tax whatever, 
 and where one exists it is so insignificant in 
 amount that it gives no adequate compensation 
 to the state for protection received. 
 
 The educational tax falls as heavily upon those 
 who have received no direct benefit as upon those 
 who have themselves been educated or had large 
 numbers of their dependents educated at the pub- 
 lic expense. 
 
 Every state has a property tax, but it does not 
 bear upon all kinds of property in proportion to
 
 24 FALLACIES OF THE LAW. 
 
 its value. Much property is made exempt by law 
 from any taxation whatever, and the lax adminis- 
 tration of defective statutes permits the greater 
 part of all personal property subject to taxation 
 to escape assessment. Large holdings in land 
 are undervalued and small holdings pay much 
 more than their proportionate share. Thus the 
 cottage is taxed more in proportion than the pal- 
 ace, and the heaviest burdens are placed upon 
 those who are least able to bear them. 
 
 The national government raises its revenue by 
 duties on imports and by internal taxes. These 
 are levied arbitrarily. Some articles are import- 
 ed without any duty. Where duty is levied some 
 articles must pay a much greater proportion than 
 others. The internal revenue is levied upon but 
 few articles, and these are singled out and made 
 to bear the whole burden. Those whose habits of 
 life are such that to them these articles have be- 
 come necessities are made to bear more than their 
 share of the burdens of taxation. The foregoing 
 discriminations in levying taxes have led men 
 strictly honest in all other matters to take delight 
 in cheating the government out of the money 
 legally due it. 
 
 Wealth is another basis for legal discrimina- 
 tion. On all criminal charges except those pun-
 
 FALLACIES OF THE LAW. 25 
 
 ishable with death the laws usually permit the 
 giving of bail, by furnishing a bond or depositing 
 the amount of money fixed by the court. When 
 this bail is given the accused is released from 
 custody until his trial is reached. The wealthy 
 give bail and go free, while the poor must lan- 
 guish in prison, often many months, awaiting 
 trial. Criminal offenses are usually punished by 
 fines, which, if not paid, will cause imprisonment 
 of the person convicted. By this method the 
 wealthy person who is able to pay his fine escapes 
 any real physical discomfort, while the poor must 
 go to prison. Many of the rich are therefore not 
 afraid of the laws, and sometimes increase their 
 wealth by violating them. 
 
 Nor is there more discrimination in the laws 
 themselves, in the treatment of the rich and the 
 poor, than in the manner of their enforcement. 
 The meshes of the criminal statute spread to let 
 the rich escape. The impecunious inmates of 
 bawdy houses and other dens of vice are caught 
 and punished, but the landlords and proprietors 
 whose pockets bulge with profits from the un- 
 lawul business are seldom disturbed. The rich 
 when arrested often appear by proxy, and if fined 
 their agents settle with a check on an account 
 from which it is hardly missed. The poor are
 
 26 FALLACIES OF THE LAW. 
 
 pushed rudely into the patrol wagon and hustled 
 to the jail and must expiate their offenses in 
 prison. Is this fair? The attendance of persons 
 awaiting trial should be secured by placing them 
 under guard in their homes, or in respectable 
 boarding houses or hotels. When convicted, the 
 punishment should be such as to punish rich and 
 poor alike. 
 
 The criminal mills are now continually grind- 
 ing out a grist of convictions, and the govern- 
 ment takes its share of the toll in the shape of 
 small fines. Acts criminal in their nature should 
 not be punished by fines. This places a price 
 upon iniquity. 
 
 In some states they have what they call a 
 "mulct law" to punish the sale of liquor in viola- 
 tion of law. Persons engaged in an illegitimate 
 business pay fines annually in advance and are 
 immune from further prosecution during the year. 
 The good people can not consent to tolerate the 
 idea of licensing what they consider a crime, and 
 so they have adopted this mode of punishment. 
 Is there any practical difference between such 
 fines and a license? or any practical difference 
 between the fines collected in advance and those 
 collected after conviction, except that the party 
 who pays the fine in advance for the privilege of
 
 FALLACIES OF THE LAW. 27 
 
 committing a crime relieves the state of the cost 
 of convicting him ? 
 
 The object of punishment is to prevent crime. 
 This object is defeated where the rich are merely 
 fined. If all such were certain of a term in 
 prison not many would take the chances of con- 
 ducting a business in defiance of law. 
 
 The national banking and other corporation 
 laws confer many special privileges which are 
 very profitable but can be taken advantage of 
 only by the wealthy. 
 
 The foregoing are but a few of the many spe- 
 cial benefits which the law confers upon the pos- 
 sessors of wealth. Neither wealth nor poverty 
 should be a reason for discrimination. If either 
 class is to be favored, a law favoring the poor 
 would appear the least objectionable. The natu- 
 ral advantages of wealth are so great that to add 
 legal advantages becomes gross injustice. 
 
 There are many legal discriminations relating 
 to vocations. The burdens and benefactions of 
 the law apply unevenly to the various occupa- 
 tions. Common carriers are required to exercise 
 more care in protecting their passengers than in 
 protecting their employes. One branch of in- 
 dustry is shielded from competition by a protec- 
 tive tariff; another must compete even with the
 
 28 FALLACIES OF THE LAW. 
 
 government itself. Some receive bounties and 
 pensions, while others are compelled to pay 
 licenses and special taxes. There certainly 
 should be a just reason to support such discrimi- 
 nation. In most cases there is none. 
 
 The benefactions of a just government should 
 descend as indiscriminately as the rays of the 
 unclouded sun at midday, and its burdens should 
 bear as evenly as the quiet atmosphere upon the 
 unruffled surface of the sea.
 
 CHAPTER III. 
 UNJUST RESTRAINTS. 
 
 THE FOUNDERS of the national government 
 declare in the preamble to the constitution that 
 its object is to secure the blessings of liberty to 
 themselves and their posterity. The word lib- 
 erty sounds sweet to the subject when it is prom- 
 ised in the proclamations of kings. Usually, 
 however, it means but little in such emanations. 
 Law writers have denned civil liberty to mean 
 the right of each subject of the government to 
 act as he may desire, providing he does not pre- 
 vent the exercise of a like right by others. 
 This definition enforces the idea of equality and 
 forbids any member of the community to seek 
 through the agency of the government to force 
 upon other members a compliance with his per- 
 sonal desires or notions of conduct. There can 
 be no liberty where the subject must obey the 
 caprice of a single ruler, a democratic govern- 
 ment, or an organized mob. 
 
 None perhaps will challenge the correctness 
 of this statement, but every attempt to apply it
 
 30 FALLACIES OF THE LAW. 
 
 will meet strenuous opposition. We have be- 
 come so accustomed to believe one thing and 
 practice another that we are shocked when asked 
 to put our theories into practice. Among the 
 laws that plainly violate these principles of lib- 
 erty are the following : 
 
 1. Laws forbidding the reasonable use of cer- 
 tain articles of diet or forbidding the sale of such 
 articles for the purpose of making it difficult to 
 get them. If the state may assume to direct the 
 individual as to his diet and require him to con- 
 sult the statutes in making his bill of fare under 
 the pretense that the thing with which he desires 
 to satisfy his appetite will be harmful to him if 
 he abuses it, then there is no act which it may 
 not at any time forbid. 
 
 2. Laws which interfere with the right to 
 work. Our natures revolt against any dictation 
 from the government in this respect. We in- 
 stinctively feel that we should be left free to 
 choose our own vocations and to conduct them 
 as we see fit. There are laws which forbid the 
 doing of work on the sabbath day, except works 
 of necessity and charity, and thereby industry is 
 made a crime and idleness enforced as a virtue. 
 There are other laws designed to prevent persons 
 from working more than eight hours in a day.
 
 FALLACIES OF THE LAW, 31 
 
 These are of the same nature. Both tend to de- 
 stroy civil liberty. 
 
 3. Laws intended to restrain trade. Closely 
 allied with the right to work is the right to deal 
 with other workers and to buy, sell and exchange 
 the products of industry. Persons thus pre- 
 vented by law from dealing with each other, or 
 with other communities, can not be considered 
 free. There are laws which for one pretext or 
 another interfere with the freedom of trade. The 
 general government has adopted a scheme for 
 raising revenue by duties on imports. In some 
 instances the duties are so contrived that no 
 revenue is raised, and the real intent and effect 
 of the law is to prohibit importation of the prod- 
 ucts of other countries. This is done to protect 
 local manufacturers and producers from compe- 
 tition. 
 
 The laws of states and ordinances of cities 
 contain many provisions of the same nature. 
 These, under pretense of raising revenue, have 
 made the cost of obtaining a license so great 
 that they have the effect of preventing many 
 from engaging in the licensed business, and thus 
 a few are enabled to monopolize it. 
 
 4. Laws interfering with the liberty of con- 
 tract. The statutes of many states and the so
 
 32 FALLACIES OF THE LAW. 
 
 called common law contain many limitations on 
 this right. Statutes forbid contracts for options 
 in stocks, grain and some other commodities, and 
 such contracts are declared void. At the same 
 time an infinite variety of other option contracts 
 are held valid. Notes and other contracts exe- 
 cuted on Sunday are void. All bets and wager- 
 ing contracts, and contracts relating to lotteries 
 and games of chance, are made illegal. The 
 laws nullifying such contracts are usually disre- 
 garded. Occasionally one of the many thousands 
 pleads the illegality as an excuse for refusing to 
 pay as he has promised, and then the courts in 
 the name of justice permit him to repudiate his 
 contract and keep the money he has received 
 under it. 
 
 5. Usury laws. In many states there are 
 statute laws forbidding contracts for the payment 
 of more than a certain rate of interest. The 
 quantity of money available for lending at any 
 time is not fixed, but fluctuates like every other 
 commodity; the demand for it and the benefits 
 that may accrue from its use vary greatly day by 
 day. No legislature has yet assumed to fix 
 the sum to be paid for the use of a horse or 
 other personal property, or what should be paid 
 for the rent of land. Money may be readily
 
 FALLACIES OF THE LAW. 33 
 
 converted into any or all of these commodities. 
 For instance: Fifty dollars will not produce a 
 calf, but it may be readily converted into a cow 
 that will. The legislature does not attempt to 
 fix the value of the offspring of the cow. How 
 then can it consistently fix the produce of the 
 money? Under some circumstances an attempt 
 to pay three per cent upon a vast sum of money 
 might result in financial ruin, while under other 
 circumstances a loan at three hundred per cent 
 would be a source of great profit to the borrower. 
 Suppose a man has occasion to dig, and it takes 
 one dollar to buy a shovel, would it not be better 
 for him to pay three hundred per cent for the use 
 of the dollar for a short time than to dig with 
 his hands ? No one can tell what benefits may 
 accrue from the use of money, and therefore no 
 hard and fast rule should be established. All 
 attempts to fix an inflexible price are therefore 
 unjust. 
 
 The usury laws fail to accomplish the design 
 of the legislature. They are generally violated 
 or evaded, and when they are not they cause in- 
 jury to those they are expected to benefit. The 
 one who is unable to borrow suffers a greater 
 loss than the amount he would be required to 
 pay if he had borrowed and paid the forbidden
 
 34 FALLACIES OF THE LAW. 
 
 interest, and those who borrow must borrow of 
 persons who are willing to incur the risk of vio- 
 lating the law, and are compelled to pay a much 
 higher rate to cover the risk incurred. 
 
 6. Laws relating to marriage contracts. The 
 law does not regard marriage a divine institution, 
 or claim that such contracts are made in Heaven. 
 It considers marriage a legal agreement, but it 
 treats it differently from other contracts in this : 
 It can not be rescinded by the mutual consent of 
 those who made it; nor will it be set aside for 
 false representations or fraud that is sufficient 
 to avoid other contracts. When other partner- 
 ships are dissolved, after paying the joint debts 
 the capital each brought into the partnership is 
 returned and the remainder is divided as profits. 
 Not so with the marriage partnership. If dis- 
 solved by death or a decree of court, a party who 
 has contributed nothing whatever to its financial 
 prosperity may take out a large share from the 
 assets contributed by the other party. Thus the 
 impecunious and crafty who possess some quali- 
 ties alluring to the opposite sex are encouraged 
 to beguile the wealthy into the marriage con- 
 tract and profit largely in dower or alimony as 
 soon as they can compass its dissolution. Where 
 the bait is handled skillfully by some artisan of
 
 FALLACIES OF THE LAW. 35 
 
 the gentler sex, the public smile and excuse it; 
 but when the fortune hunter is a male, and 
 falsely wooes to get control of money left by a 
 deceased husband or father, the baseness of the 
 transaction is generally recognized. The differ- 
 ence of sex does not change the character of the 
 act. The law which makes marriage a means to 
 the attainment of wealth should bear a part of 
 the blame. The law encourages marriage. It 
 makes the entrance to the matrimonial net easy 
 and pleasant, and the exit exceedingly difficult 
 and unpleasant. So much does it favor marriage 
 that it will not permit its dissolution by mutual 
 consent. It strives to perpetuate the relation 
 between those who hate each other. It consid- 
 ers domestic strife a suitable atmosphere in 
 which to rear children. Should we be surprised 
 if this relation, which presents so fruitful a field 
 for fraud in its procurement, and is so hedged 
 about with coercive statutes to compel its con- 
 tinuance, ordinarily becomes a most prolific 
 source of cruelty and skulking hypocrisy ? 
 Why should the marriage relation on any other 
 basis than mutual attraction be desirable in law ? 
 Where the parties so hate each other as mutually 
 to seek dissolution, why should not the law per- 
 mit them to dissolve it without requiring one of
 
 36 FALLACIES OF THE LAW. 
 
 them to commit a crime as a ground for the dis- 
 solution ? 
 
 7. Concealed weapons. The laws in many 
 parts of the United States make it a crime to 
 carry weapons concealed. One may go about 
 with an arsenal guns, dirks and bowie-knives 
 in his belt, provided they are visible, but if he 
 carries a small revolver in his pocket or valise 
 he violates the law. The effect of this statute 
 is to disarm those who are law-abiding and 
 respectable. Only ruffians carry weapons un- 
 concealed. Thieves, bullies and hold-up men 
 pay no attention to the law, and the decent 
 people who obey it go unprepared to resist as- 
 sault from highwaymen, burglars and savage 
 dogs. A small boy with a pistol is thus made 
 able to rob a whole train load of passengers who 
 are thus disarmed, and a dog may put hundreds 
 of people to flight. 
 
 It may be urged that if the law permitted all 
 persons to carry weapons many would abuse the 
 privilege and yield to a temptation to use them 
 improperly. If this be granted it does not jus- 
 tify the law, because the law forbids the carrying 
 of concealed weapons only and permits the carry- 
 ing of weapons that are not concealed. Is there 
 not as great danger of yielding to impulse in one
 
 FALLACIES OF THE LAW. 37 
 
 case as in the other? Those most likely to use 
 weapons pay no attention to the law. The fact 
 that one person may abuse this liberty can not be 
 a valid reason for enslaving another. A free man 
 should have the right to carry weapons in any 
 way he desires. He may not choose to do so. 
 He may think that such weapons actually in- 
 crease his danger and prefer to go about without 
 any means of protection. If so, it should be his 
 privilege. The right to defend life, liberty and 
 property should imply a right to carry weapons 
 for that purpose; to deny such a right would be 
 like allowing to the farmer the right to till the 
 soil and then forbidding him the use of the most 
 effective implements for that purpose. The abil- 
 ity of a nation to defend itself depends upon the 
 capacity of its people to use weapons in self- 
 defense. When it thus disarms its people it seri- 
 ously depletes its own strength. 
 
 The foregoing illustrations are but a few of the 
 many laws that seriously conflict with the doctrine 
 of civil liberty as denned in the opening of this 
 chapter. An attempt to repeal any one of them 
 would meet with strenuous opposition. The claim 
 would be made for all of them that they in some 
 way tend to promote the health, safety or morals 
 of the public. This broad claim is elastic enough
 
 38 FALLACIES OF THE LAW. 
 
 to cover any edict which a tyrant may devise to 
 enslave a people. 
 
 All enjoy fine phrases in praise of liberty, but 
 only a few are really in favor of it. A consider- 
 able portion prefer to be led and controlled. They 
 seek a master who shall think for them and rule 
 over them and allow them to worship him. 
 
 Of those who desire liberty for themselves the 
 larger portion are not willing to accord it to oth- 
 ers. They wish to use the government to enforce 
 upon the entire community their particular no- 
 tions of conduct. "Whatsoever ye would that 
 others should do unto you, do ye even so unto 
 them" is the golden rule of Jesus. "Do not unto 
 others what you would not have others do unto 
 you" was the injunction of Confucius. Both are 
 in accord with civil liberty as above defined, but 
 they are expressive of higher ideas of justice than 
 most people are willing to practice. A great 
 people must arise, if at all, by the observance of 
 these principles. The instinct of selfishness must 
 be curbed. The desire to manifest one's own ego 
 by suppressing others must be eliminated, and 
 each person allowed and encouraged to develop 
 his latent abilities along the line of his own de- 
 sires. To the extent that men and women have 
 been able to do this have they been made strong.
 
 FALL A CIES OF THE LA W. 39 
 
 The real strength of a nation depends more 
 upon the development of its people than on its 
 fighting appliances, and this development de- 
 pends upon the extent each individual has been 
 encouraged by just and liberal laws. Thus laws 
 infringing upon civil liberty are obstructions in 
 the path of progress; but they have not produced 
 a tithe of the injury they would have caused had 
 they been strictly enforced. The imagination 
 can not picture the disaster that would follow 
 such enforcement. There is perhaps no member 
 of the community who does not violate some of 
 them. Occasionally a spasm occurs in a particu- 
 lar cult or sect and a series of prosecutions is 
 started, but it soon subsides. There is neither 
 zeal enough in the people to enforce nor energy 
 sufficient to repeal such laws, so they remain to 
 swell the bulk of statutes and to become sources 
 of fraud and extortion and instruments of private 
 malice.
 
 CHAPTER IV. 
 
 UNJUST DUTIES. 
 
 i. DUTY to exercise ordinary care. A large 
 part of all the litigation in the cities of the United 
 States are suits to recover damages for injuries 
 to persons and property on the ground that they 
 were caused by the negligence of the defendant. 
 In some the negligence consists in failing to keep 
 a contract either in express words or implied by 
 law. In others it consists in a failure to dis- 
 charge a duty expressly commanded by the law. 
 But in most cases the negligence consists in the 
 failure to exercise what is called "ordinary care" 
 in relations where the law makes it the duty to 
 exercise such care. 
 
 What is "ordinary care"? It is often defined 
 to be such care as an ordinarily careful and pru- 
 dent person would exercise under like circum- 
 stances in relation to his own affairs. But how 
 can the judge or jury identify the ordinarily care- 
 ful and prudent person or prophesy what he 
 would do under like circumstances ? Both tasks 
 are impossible to discharge with any approach to
 
 FALLACIES OF THE LAW. 4 1 
 
 accuracy. The product of efforts in this direc- 
 tion are mere guesses depending upon the intelli- 
 gence, experience and the state of feelings of the 
 person who does the guessing. The jury thus 
 put to sea without chart or compass are usually 
 guided principally by their sympathies, and find 
 a verdict for the plaintiff. This rule is not just. 
 Why should any person be under obligation 
 to exercise ordinary care? Care embraces two 
 elements ; /'. e. , a perception or foresight of dan- 
 ger, and efforts to avoid it. The first is the rea- 
 son for the second. Without the perception the 
 efforts would be unreasonable. The exercise of 
 care is therefore an act of mentality, and to 
 require a person to exercise the same degree of 
 care as an ordinarily careful and prudent person 
 clearly requires him to possess the mental ca- 
 pacity of an ordinarily careful and prudent per- 
 son. As well require him to be as tall or as fat 
 as an ordinary person, or punish him because he 
 falls short of the ordinary in any other physical 
 or mental quality. Thus if one is not ordinarily 
 careful and prudent and thereby another is in- 
 jured, the person thus lacking must make good 
 the loss unless the injured person is also lacking 
 in the same respect. Is it just thus to make a 
 person suffer loss for what he can not help?
 
 42 FALLACIES OF THE LAW. 
 
 Whenever the shortcomings of the defendant are 
 intentional, as where he has intended to subject 
 the injured party to unnecessary danger and has 
 willfully failed to take necessary steps to avoid it, 
 a good reason exists for making him pay the 
 losses, but where the injury is the consequence 
 of a mere error of judgment or lack of foresight 
 it is a mere accident. 
 
 2. Duty to exercise ordinary skill and dili- 
 gence in a professional capacity. The law makes 
 it the duty of persons who practice professions 
 requiring special skill to exercise the skill and 
 care ordinarily exercised by members of such 
 professions, and if they fail to do so they are 
 made responsible for all losses caused by such 
 failure. All heretofore written on the duty to 
 exercise ordinary care applies here with emphasis. 
 It is even more difficult to tell what skill and dili- 
 gence are ordinarily exercised by professional 
 men of a certain calling than it is to tell what 
 care is ordinarily exercised by persons generally. 
 The judge and jury are without any criterion for 
 an accurate judgment. Seldom has the judge 
 any special knowledge of the skill or care em- 
 ployed in any profession other than his own, and 
 the jury are destitute of any definite knowledge. 
 How can either of them form an intelligent opin-
 
 FALLACIES OF THE LAW. 43 
 
 ion on the question whether the defendant in a 
 given case exercised the skill and care that an 
 ordinary member of his profession would have 
 exercised under like circumstances ? 
 
 Even if capable of an accurate application, 
 this rule would be exceedingly unjust to the pro- 
 fessional man. It makes him suffer losses be- 
 cause he lacks the foresight or expertness of 
 others. It is sought to justify this law by claim- 
 ing that when a man undertakes a task requiring 
 professional skill and learning he represents and 
 impliedly contracts that he possesses such skill 
 and learning, and if he has not his representa- 
 tions are false and his contract broken, and he 
 should suffer the losses caused thereby. This 
 claim is not correct. No one can know abso- 
 lutely what skill or learning is ordinarily pos- 
 sessed by members of a profession, and therefore 
 whether a certain member possesses it or not 
 must ever be a mere opinion. An opinion can 
 never be the foundation of a claim for damages 
 for false representation, nor can it be a basis for 
 a claim for a breach of contract, because of the 
 difficulty in definitely proving a breach. 
 
 If it be conceded that a physician, for instance, 
 when he undertakes to treat a patient, contracts 
 that he possesses the learning and skill ordinarily
 
 44 FALLACIES OF THE LAW. 
 
 possessed by physicians, who shall prove that he 
 has not, and how can it be proven ? Must it not 
 first be proven what skill and learning at least 
 the majority of physicians possess, before it can 
 be shown that the physician in controversy lacks 
 in either? It is not enough to show that he is 
 not as smart as A or B, or perhaps ten or a dozen 
 members of the profession that may be selected. 
 To do even this would be a prodigious task; but 
 more must be done: it is necessary to bring the 
 whole profession into review and show that the 
 physician whose learning and skill are in question 
 exercised less learning and skill than the average. 
 This no one can do with any degree of accuracy 
 in a "malpractice" case. 
 
 No such contract is ever entered into, or im- 
 plied in fact, by the employment of a physician 
 or lawyer. The employe merely holds himself out 
 as lawfully authorized and licensed to practice 
 the profession, and all he can be justly supposed 
 to promise is that he will act in good faith and do 
 the best he knows how. If he acts in good faith, 
 there is no more reason why he should suffer be- 
 cause of errors in judgment than there would be 
 for making a judge responsible in damages because 
 he reached a decision different from the one that 
 a court or jury might believe would ordinarily be
 
 FALLACIES OF THE LAW. 45 
 
 reached under the same circumstances. Mem- 
 bers of professions, of course, should be made 
 responsible for false pretenses and frauds prac- 
 ticed, and should be held responsible for inten- 
 tional neglect or disregard of duty, but they 
 should not be made responsible for a mere lack 
 of mental capacity, or of knowledge and skill, 
 where they have not intentionally practiced de- 
 ception upon their employers. 
 
 3. Contributory negligence. Intimately con- 
 nected with the obligation to exercise ordinary 
 care is the doctrine of contributory negligence," 
 and it applies in this way: The person who sues 
 for damages for a personal injury which he has 
 sustained on account of the negligence of another 
 must prove that at the time he was injured he 
 was exercising ordinary care for his own safety. 
 If his failure to be ordinarily careful contributed 
 directly to cause his injury he can not recover 
 anything. Thus the failure to possess ordinary 
 intelligence and foresight practically outlaws the 
 injured party. He may have been disabled for 
 life by the recklessness of another, but the law is 
 deaf to his complaints. If he is below the ordi- 
 nary he is entitled to no protection. Is not this 
 doctrine positively shocking to one's sense of 
 justice? Is it not clearly illogical? If failure
 
 46 FALLACIES OF THE LAW. 
 
 to exercise ordinary care is an actionable wrong, 
 and both parties are guilty, why should the in- 
 jured party be made to bear all the loss ? If the 
 fault causing the loss is equal, why should not 
 the consequent loss be equally divided ? 
 
 4. Comparative negligence. To mitigate the 
 manifest injustice of the rule of contributory neg- 
 ligence the doctrine of "comparative negligence" 
 was invented and is still applied in a few juris- 
 dictions. According to this doctrine, where both 
 parties are guilty of negligence causing the injury 
 the jury are to compare their negligence, and if 
 the defendant's negligence is greater than the 
 plaintiff's the injured plaintiff may recover. If it 
 were possible to prove with any degree of accu- 
 racy the fact of negligence, then it might be pos- 
 sible to compare the negligence of each party 
 and we might have a rule by which each party 
 would be made to suffer in proportion to his stu- 
 pidity. This would not be so illogical as the 
 doctrine of "contributory negligence," but it 
 would be very bad. 
 
 5. Duty to exercise ordinary care in dealing 
 with a swindler. Bearing some relation to the 
 doctrine of "contributory negligence" is the rule 
 enforced in most jurisdictions requiring a person 
 who seeks relief for a fraud practiced on him to
 
 FALLACIES OF THE LAW. 47 
 
 show that he exercised ordinary care to avoid 
 being defrauded. If he has relied upon the false 
 representations of another without exercising 
 ordinary care to ascertain their truthfulness, or 
 has in any other way been imposed upon, because 
 he did not possess the usual foresight of ordina- 
 rily careful and prudent persons the law will 
 afford him no redress. It says to the swindler, 
 "Fools are your legitimate prey; you may cheat 
 the unwise and imprudent wherever you can ; but 
 if you are smart enough to outwit the wise and 
 prudent we will set aside the transaction or make 
 you responsible in damage for the fraud you com- 
 mit. " Can anything be worse than this ? 
 
 A just government should make haste to pun- 
 ish fraud wherever practiced, and if it made any 
 discrimination between the wise and the unwise 
 in granting relief, that discrimination should 
 favor those who have been poorly provided by 
 nature with the capacity to protect themselves 
 from fraudulent devices.
 
 CHAPTER V. 
 
 UNJUST DUTIES Continued. 
 
 6. DUTY to exercise the highest degree of 
 care. There are some relations in which the 
 law implies an obligation to exercise the highest 
 degree of care consistent with the conduct of the 
 business. Common carriers are required to exer- 
 cise this degree of care for the protection of their 
 passengers, and innkeepers are also required to 
 exercise it for the protection of their guests. All 
 objections heretofore made against the rule re- 
 quiring ordinary care apply with equal force to 
 any other degree. No judge or jury can deter- 
 mine accurately when such care has been exer- 
 cised. Why should the carriers of passengers or 
 the keepers of inns be required to have more 
 intelligence than those who operate factories or 
 mines or construct buildings ? Why should a 
 passenger or guest receive any greater protection 
 than the employe in a mine or a factory or on a 
 building ? The usual answer is that the passen- 
 ger or guest pays for safety and the carrier and 
 innkeeper impliedly agree to give him a safe
 
 FALLACIES OF THE LAW. 49 
 
 carnage and entertainment. Then why not make 
 them keep the contract ? In no other instance 
 can a person excuse himself for failure to keep 
 his contract by showing he exercised the highest 
 degree of care consistent with the practical oper- 
 ation of his business. This is not allowed as an 
 excuse for a failure to comply with a contract to 
 pay money or deliver property or construct a 
 building. Where other contracts are broken the 
 law awards compensation for the losses caused 
 by the breach, without regard to the care exer- 
 cised in efforts to perform them. 
 
 7. Duty to exercise the least degree of care. 
 In some relations the law requires the exercise 
 of only a slight degree of care and allows a 
 recovery for only what is called gross negligence. 
 Thus when one person without compensation 
 undertakes to render service for another, he is 
 required to exercise only slight care. Here the 
 same objections exist as to the other degrees of 
 care; for it is just as difficult to determine what 
 is slight care as any other kind. There is no 
 definite measure for it and no certain test to 
 identify gross negligence or distinguish it from 
 any other kind. This rule is also unjust. Why 
 should a person who has assumed without any 
 reward or hope of advantage to render a service
 
 50 FALLACIES OF THE LAW. 
 
 to another be held to a higher obligation than 
 good faith and honest intentions ? No consider- 
 ation is paid for the service and there is nothing 
 to compensate for assuming a risk. Those who 
 undertake tasks for hire may be supposed to con- 
 sider the risk in fixing the price ; but those who 
 undertake gratuitous services out of kindness or 
 generosity should not be required to do more 
 than they are able to do by acting in good faith. 
 
 The word care in common parlance suggests 
 an action of the will, and perhaps the obligation 
 to exercise it originally meant nothing more than 
 an effort to do the act necessary. But in the 
 process of refinements natural in legal discus- 
 sions the word has come to mean much more than 
 a desire or an effort. It now includes foresight, 
 intelligence and reasoning capacity as well, and 
 thereby has come into existence the unjust doc- 
 trine which we have herein combated. 
 
 8. A substitute suggested. To the foregoing 
 criticism of the law of negligence many objections 
 which will be made can not be anticipated and 
 answered herein. All will admit the present law 
 to be imperfect. Some will, however, insist that 
 this law affords a kind of necessary relief and it 
 behooves the critic to offer something better in its 
 place. The subject affects so many relations in
 
 FALLACIES OF THE LAW. 51 
 
 life that it is difficult to devise any system that 
 will be entirely just and logical and afford the 
 redress needed. There are, however, some prin- 
 ciples that inhere in the nature of the subject, and 
 a consideration of these may afford illumination. 
 
 In the association of members of a community 
 with each other there are five relations which are 
 conceivable as creating obligations : 
 
 First. A contractual relation, where one is 
 under obligation to another because he has bound 
 himself by a contract, either in express words 
 or by reasonable implication, to do or not to do 
 some act. Here the obligation is absolute, and 
 it should not be discharged without a perform- 
 ance or the paying of something that is equiva- 
 lent to such performance. 
 
 Second. A relation voluntarily assumed, where 
 one person must rely upon another to protect him 
 from the dangers necessarily incident to the rela- 
 tion or likely to exist or arise out of the relation. 
 Here the law should create an obligation on the 
 part of the one relied upon to discharge the 
 trust thus imposed by this relation, and the only 
 excuse that ought to avail should be that some 
 force beyond his control has intervened and made 
 it impossible for the party to discharge his obli- 
 gation.
 
 52 FALLACIES OF THE LAW. 
 
 Third. Where the relation is such that both 
 parties are relied upon to afford protection for 
 themselves and each other, then the only obliga- 
 tion that naturally arises is that each should act 
 in good faith toward the other, giving him the 
 same care that he bestows upon himself. If 
 under such circumstances an injury occurs with- 
 out either party acting in bad faith, there is no 
 foundation for asking either to bear the loss of 
 the other, unless the loss can be considered a part 
 of the necessary hazards of a joint undertaking. 
 If they are thus associated together, the actual 
 loss suffered without the fault of either, caused 
 by accidents or defective appliances, should be 
 considered a part of the necessary expenses of 
 the business and be shared equally. 
 
 Fourth. Where the parties are acting entirely 
 independently of each other, each using his own 
 person and property for his own purposes. In 
 such a relation each owes to the other the obliga- 
 tion not to act or allow his property to be used so 
 as to cause injury to the other, This obligation 
 should be absolute, and if either injures the other 
 by the use he makes or permits of his person or 
 property, and thereby causes a pecuniary loss, 
 he should make good that loss, whether he has 
 been careful or careless in causing it.
 
 FALLACIES OF THE LAW. 53 
 
 Fifth. Where there are no contractual rela- 
 tions existing between the parties, and each one 
 is proceeding independently, attending to his own 
 business, having an equal right to the locality, 
 and a collision occurs without any willful or in- 
 tentional disregard by either of the rights of the 
 other, there is no reason why either should be 
 entitled to require the other to share his loss. 
 If, however, one party has a superior right to 
 occupy the place where the injury occurred, or if 
 one has a lawful right to be there and the other 
 has not, the one wrongfully there should bear the 
 loss. 
 
 It is believed the foregoing principles will 
 apply to most, if not all, the obligations which 
 naturally arise in a community on account of the 
 relations of its members to each other. Other 
 relations may arise because of those which the 
 members sustain to the government. Such are 
 the obligations to share in governmental ex- 
 penses, and to obey and assist in the enforcement 
 of its laws. Where there has been a violation of 
 such obligations and one member of the commu- 
 nity has thereby suffered a loss he should have 
 an absolute right to compensation from the per- 
 son in default. 
 
 If the views above expressed are sound, the
 
 54 FALLACIES OF THE LAW. 
 
 whole doctrine of actionable negligence as now 
 found in the law, with its accompanying mirage 
 of contributory negligence, should become obso- 
 lete, and in the place of its windings and twist- 
 ings, its vagueness and uncertainty, we should 
 substitute a logical and definite system that will 
 afford a complete redress for the breach of easily 
 understood obligations. 
 
 9. Duty of a husband to pay all debts con- 
 tracted by his wife before marriage, and all dam- 
 ages caused by her either before or after marriage. 
 By the common law, in force in most of the 
 states, where not changed by statute, the hus- 
 band is answerable for all debts existing against 
 his wife at the time of marriage, and for all dam- 
 ages she has caused to others by her wrongful 
 acts prior to her marriage, and all that she may 
 cause while the marriage relation continues. 
 This rule is based upon the fiction that by the 
 marriage they become one, and he is the one, 
 and all the incumbrances that have previously 
 attached to her are merged in him by the union. 
 All slanders, assaults or sins of omission or com- 
 mission which may have been charged to her be- 
 fore marriage or may be thereafter are saddled 
 upon him, and he must make a sort of vicarious 
 atonement in currency to any one who has suf-
 
 FALLACIES OF THE LAW. 55 
 
 fered damages on account of them. The injus- 
 tice of this duty is obvious and needs no argu- 
 ment. 
 
 10. Duty to assist the sheriff and constable. 
 At common law a sheriff or constable could call 
 such a number of men as were necessary to assist 
 him in the execution of a writ or the preservation 
 of the peace, and every person over the age of 
 fifteen, not disabled by age or decrepitude from 
 doing so, was required to obey, and was liable 
 to be punished by fine and imprisonment if he 
 failed. This law makes no provision for com- 
 pensating the person thus assisting for time lost 
 or injuries received, and gives these officers ar- 
 bitrary power to call persons from their homes 
 and occupations at any time, day or night. All 
 liable to such call may be subjected to the great- 
 est dangers in enforcing a writ or suppressing a 
 mob or riot whenever in the judgment of either 
 of these officers such services are necessary. 
 Perhaps there was in England and in this country 
 a time when it was proper to bestow such power 
 upon the sheriff and constable and impose such 
 burdens upon subjects, but surely that time has 
 passed. These officers should be provided by 
 law with suitable assistance for serving writs and 
 suppressing mobs, and in cases of emergency the
 
 56' FALLACIES OF THE LAW. 
 
 military arm of the government should aid them. 
 Men in the ordinary walks of civil life are not 
 adapted to perform such service, and if sum- 
 moned would usually prove of but slight assist- 
 ance to the officer. Our laws tend to disarm the 
 great body of the people and prevent the use of 
 weapons. They discourage physical conflicts and 
 teach all to rely upon trained men to execute the 
 behests of the law, and it is certainly unjust to 
 require private persons to engage in such con- 
 flicts at the request of the sheriff or constable. 
 This law is tolerated because it is not enforced. 
 If one of these officers would telephone a few 
 preachers, doctors, lawyers and merchants to aid 
 in suppressing a mob, and attempt to punish 
 them for a failure to respond, it is probable the 
 law would soon be eliminated. 
 
 ii. The duty to assist in military operations. 
 Every government has assumed the right to 
 compel its subjects to assist in any military oper- 
 ation in which it may be engaged. A sentiment 
 of patriotism generally prevails and it is consid- 
 ered dishonorable to refuse such assistance. It 
 has been said "the patriot asks no omen but his 
 country's cause." Where it is believed that the 
 government derives its power from divine sources 
 every subject must serve its behests without
 
 FALLACIES OF THE LAW. 57 
 
 question. But our government is declared to 
 derive its just power from the consent of the 
 governed and to exist for their benefit. Under 
 such circumstances, and to be consistent with 
 this fundamental theory, a different doctrine must 
 prevail. To what extent may such a government 
 justly compel its subjects by law to assist in its 
 military operations? The implied contract by 
 which the members of the community are as- 
 sumed to have organized to protect their lives, 
 liberty and property may be said to put each 
 member under obligation to share his just pro- 
 portion of the necessary expense and services 
 required to sustain that government in time of 
 either war or peace. If at any time it becomes 
 necessary to take up arms in defense of the gov- 
 ernment, or to train preparatory for that purpose, 
 each should bear his share according to his ability 
 and means. To this, however, there should be 
 a limit, or else the citizen in becoming a subject 
 of the government may lose his liberty by the war 
 schemes of its managers. If a war is not in fact 
 necessary to protect the government, its citizens 
 or their property, and it is not in its nature de- 
 fensive, is it a just law that compels any subject 
 to support it by money or personal service ? All 
 governments punish murder as one of the great-
 
 58 FALLACIES OF THE LAW. 
 
 est of crimes. Human life is never permitted to 
 be taken by a subject except when necessary in 
 defense of life, liberty and property. The same 
 rule of justice which does not allow subjects to 
 take human life except for defensive purposes 
 must apply to all subjects and in its logical con- 
 clusion forbid all from engaging in an unneces- 
 sary war. 
 
 It is remarkable that the constitution of the 
 United States gave to Congress the unlimited 
 power to declare war. It should have restricted 
 that power to wars necessary for the common 
 defense. War waged to defend the government 
 and protect the rights of its people against unjust 
 assaults is holy, and every dollar spent and every 
 drop of blood spilt is consecrated to the sacred 
 cause of justice. But war inspired by greed or 
 by lust for power, or to assist some popular idol 
 in obtaining military glory, is the worst of crimes. 
 Common murder compared with it becomes in- 
 significant. Lands and cities are laid waste, 
 multitudes of human lives are destroyed, and 
 every horrible crime accompanies its march or 
 follows in its wake. Diseases the most pestilen- 
 tial and loathsome lurk about its camps and rot 
 the limbs of brave men in both armies. Birds of 
 prey, human and inhuman, hover about the field
 
 FALLACIES OF THE LAW. 59 
 
 to rob or devour the slain. Many of the legions 
 which war's frightful machinery has left alive 
 survive only as miserable cripples or the victims 
 of incurable maladies until they finish a living 
 death in an untimely grave. The terrible deluge 
 of agony brought upon the participants in the 
 wicked enterprise continues to vex the inhabit- 
 ants of both nations for centuries after peace has 
 been declared. Surely intelligent people should 
 discriminate between a just and an unjust war. 
 They should wreathe with bays of undying glory 
 the memories of those who imperil or sacrifice 
 their lives for the cause of justice, and execrate 
 and teach their children to execrate forever the 
 names of the promoters of venal wars.
 
 CHAPTER VI. 
 
 FALLACIES OF GENERAL LAWS. 
 
 i. LAWS for collecting taxes. In many states 
 the laws provide for selling real estate to col- 
 lect the taxes levied thereon. These laws allow 
 to the owner several years in which to redeem 
 from the tax sale, and in case of redemption pro- 
 vide for rates of interest much higher than the 
 legal rate of the state, and provide for setting 
 aside sales for collusion among bidders or for a 
 failure to observe the precise requirements of the 
 law in advertising and selling the property. Be- 
 cause of the redemption statutes and the many 
 grounds that may avail to set aside such sales, 
 only a few persons attend them as bidders, and 
 those who do attend are attracted thereto by the 
 large profits that they hope to realize. 
 
 The lands so sold are usually bid in for a 
 small fraction of their value, and the rates of 
 interest and the penalties required to be paid 
 in the event of a redemption are so exorbitant, 
 and when a deed is acquired it is obtained for so 
 insignificant a sum in proportion to the value of
 
 FALLACIES OF THE LAW. 6 1 
 
 the property conveyed, that the whole proceed- 
 ing shocks the moral sensibility of every lover of 
 justice. 
 
 It is strange that a government which re- 
 quires its subjects to be just with each other, 
 and provides for setting aside ordinary sales as 
 fraudulent where the consideration is grossly 
 inadequate, has no scruples against collecting its 
 own dues by sacrificing the property of its people. 
 
 Of course all should pay their taxes, and often 
 the failure to pay is due to neglect, but is the 
 government justified in punishing neglect by so 
 heavy penalties ? If one member of the commu- 
 nity fails to pay his debt to another the law fixes 
 the penalty of that neglect by requiring him to 
 pay a reasonable rate of interest, such as five or 
 six per cent per annum. Why should not the 
 government be willing to treat the same neglect 
 to pay a debt due to it with the same penalty ? 
 A large part of those who fail to pay taxes are 
 unable to pay because of poverty, and the money 
 thus wrongfully taken from them is from the 
 fund required to supply necessities of life. Often 
 sickness, unavoidable misfortune or other casu- 
 alty has disabled them. Under such circum- 
 stances is it not cruel to sell a home reasonably 
 worth one thousand dollars for fifty or one hun-
 
 62 FALLACIES OF THE LAW. 
 
 dred dollari taxes and then in a short period 
 double the amount by adding exorbitant interest 
 and penalties, and if redemption is not made, 
 convey it to the tax buyer for the inadequate 
 price he has paid ? 
 
 If these taxes were always just in themselves 
 the transaction would not seem quite so bad. 
 Sometimes these taxes are levied to aid a railroad 
 corporation in building a railroad through the 
 locality. In cities a large proportion is usually 
 assessed for paving the streets or building side- 
 walks and sewers adjacent to the lot or land. 
 These improvements are mainly for the enjoy- 
 ment and use of the general public, and the poor 
 who seek to maintain the roof over their heads 
 are often compelled to pay a sum much greater 
 than any benefit they have received, and in the 
 collection of the debt the state resorts to methods 
 which it would not tolerate or permit to be used 
 by a private person. A great government, organ- 
 ized to establish justice and permitted to exist 
 upon the pretense that such is its object, should 
 itself be just. It should not offer extravagant 
 bounties to tax-buyers, nor sell property in such 
 a manner that it will not bring its fair value. 
 Property sold for taxes should be first appraised 
 at its fair market value, and if it can not be sold
 
 FALLACIES OF THE LAW. 63 
 
 for at least two-thirds of that amount it should 
 be taken by the state. The time of redemption 
 should be short; but whether long or short, the 
 rate of interest should be reasonable. It would 
 seem better in the collection of taxes to refrain 
 from selling real estate until after the personal 
 property owned by the tax debtor had been sold. 
 The law would then not be a trap for the unwary 
 tax debtor, nor would it unduly encourage the 
 tax -buy ing industry. The law should be so 
 framed that a tax title, when acquired, would be 
 a good title, instead of, as now, subject to be set 
 aside for numerous flaws in the regularity of the 
 proceedings. It should be considered as a war- 
 ranty deed from the state, and in case there is 
 any irregularity or fraud shown in the proceed- 
 ings, on account of which a loss occurs, the state 
 should indemnify the losing party. 
 
 2. Insurance contracts. Probably no kind of 
 contract is more likely to work injustice than the 
 insurance contract. The parties to it have many 
 opportunities of cheating each other, and these 
 are sometimes used to the limit. 
 
 Many insure property with the secret intention 
 of having it destroyed by fire, that they may 
 recover its value from the insurance company. 
 Many who are conscious of serious physical de-
 
 64 FALLACIES OF THE LAW. 
 
 fects or fatal diseases in the incipient stage con- 
 tract for life insurance on representations that 
 they are in perfect health, for the purpose of de- 
 frauding the company; and others, contemplating 
 violence to themselves, or suicide, take out acci- 
 dent-insurance policies for the same purpose. 
 The insurance company is usually promoted by 
 shrewd men for the purpose of accumulating a 
 fund out of which to pay themselves exorbitant 
 salaries and to use for speculative purposes. 
 They employ persuasive agents who adroitly 
 work upon the fears of the credulous. They pre- 
 dict oncoming disasters to destroy property, and 
 prophesy impending perils to life and limb, and 
 by inspiring the hope of great gain to the insured 
 or his dependents these agents induce great 
 numbers of persons to turn their small savings 
 into the exchequer of the insurance company. In 
 the litigation which arises out of such contracts 
 it is difficult for either party to procure a fair 
 trial. The jury before whom such cases are 
 ordinarily tried usually give a verdict against the 
 insurance company on every question of fact sub- 
 mitted to them. The judges, perhaps influenced 
 by this well known trait of jurors, often incline 
 the other way. They have stepped aside from 
 the ordinary principles of contracts and by their
 
 FALLACIES OF THE LAW. 65 
 
 decisions have established doctrines of law that 
 protect insurance companies to an unreasonable 
 extent. 
 
 Life and accident insurance policies are usu- 
 ally issued upon an application in writing, signed 
 by the applicant. This application is stipulated 
 to be a part of the contract, and contains a long 
 series of questions which relate to the age, health 
 and history of the applicant and the history of his 
 father, mother, brothers and sisters; the cause of 
 their deaths, and some other matters; and the 
 applicant warrants all the statements in this ap- 
 plication to be true. There is usually a provision 
 in either the application or the policy which pro- 
 vides that in case any statement is not true the 
 policy shall be void at the election of the com- 
 pany, and that all premiums paid thereon shall 
 be forfeited. 
 
 When in the sale of personal property or real 
 estate, or in any other department of human 
 affairs, one person warrants another that a cer- 
 tain statement is true, and a breach occurs, he is 
 liable for only such damages as the other has 
 sustained in consequence of the breach. The 
 sale can not be avoided, but on account of it the 
 party injured by the breach of warranty may 
 recoup his damages in a suit brought for the
 
 66 FALLACIES OF THE LAW. 
 
 price, if he can show that he has lost anything on 
 account of the breach of the warranty. But so 
 careful are the courts to protect insurance com- 
 panies that they hold an innocent mistake made 
 by the applicant in his application, even when 
 entirely immaterial to the risk, will not only en- 
 able the insurance company to refuse to pay the 
 policy to the beneficiaries, but will allow it to 
 retain all the money received thereunder. Some 
 courts have gone so far as to permit a forfeiture 
 of the policy for a breach of warranty relative to 
 immaterial matters where there was no clause 
 whatever in the policy providing for such forfeit- 
 ure. If these policies, loaded down with abstruse 
 provisions, are to be given force in all their parts, 
 a mere mistake should not constitute a defense, 
 unless it is shown to have increased the hazard 
 or caused a loss. If the breach was the cause of 
 the death of the insured, or the destruction of 
 property insured, it would be proper to make it a 
 complete defense, but if it has in no way caused 
 any loss to the company it should be treated as 
 immaterial. If a mistake in statement of age or 
 occupation has increased the hazard, the com- 
 pany should be permitted to withhold a sufficient 
 sum to pay for the increase. 
 
 In an insurance contract there is nothing so
 
 FALLACIES OF THE LAW. 67 
 
 sacred as to require the application of a rule dif- 
 ferent from the one that is applied and appears 
 to be just when applied to other contracts. 
 
 3. The law of estoppel. If one person remains 
 silent when it is his duty to speak, for the pur- 
 pose of inducing another to act in ignorance of 
 his rights, or if he speaks falsely, intending to 
 deceive, and another is by either act induced to 
 part with money or property or otherwise change 
 his position to his detriment, there arises what is 
 known in law as an estoppel in pais, and the per- 
 son who has thus remained silent or has spoken 
 falsely is not allowed by the law to dispute the 
 truth of his statement or to assert any rights 
 which he should have asserted when he remained 
 silent. Thus if A be the owner of a horse and he 
 stands by and sees B bid it in at a sale as the 
 property of C, and says nothing to assert his own 
 title, the law will not let him thereafter set up 
 any claim to the horse. Or if A, for the purpose 
 of inducing B to extend credit to C, states to B 
 that C is not indebted to him, and relying upon 
 such a representation B is induced to extend 
 credit to C, A will be prevented by the law from 
 afterward asserting any debt against C to the 
 prejudice of B. On first appearance the principle 
 seems to be just, but a critical examination shows
 
 <58 FALLACIES OF THE LAW. 
 
 it to be fallacious. Consider an illustration: 
 A is the owner of a horse of the value of $100; 
 B has it levied upon by an execution to collect a 
 debt of $10 against C. If A stands by and per- 
 mits the sale to proceed without asserting his 
 title, B may get the entire horse for $10, the sum 
 due him. The only injury that B could sustain 
 if A asserts his title is the amount he has paid 
 for the horse. The law of estoppel takes $100 
 from A and gives it to B for $10. This works a 
 double injustice: it makes A lose more than the 
 damages that are caused by his failure to speak, 
 and gives B more than the loss he would sustain, 
 and gives C a credit on the judgment against him 
 of $10 for a horse, which does not belong to him. 
 In the place of such a rule should be substituted 
 the law of compensation for actual injuries sus- 
 tained, caused by the failure to speak or by the 
 false words spoken. In the case supposed, where 
 A has lost his horse, he should be permitted to 
 pay B the loss B has sustained and retain his 
 horse. 
 
 4. Laws giving immunity. The law does not 
 ordinarily provide for any method of collecting a 
 claim against a state. One who claims to have 
 been injured by the. state, or who has parted with 
 his property or money under a contract with it,
 
 FALLACIES OF THE LAW. 69 
 
 has no right to sue in the courts. He may apply 
 to a member of each house of the state legislature 
 and have bills introduced and referred to com- 
 mittees of each house. These may report upon 
 the bills to their respective houses, and the claim- 
 ant must take whatever the legislature is disposed 
 to give him. Unless a majority of both houses 
 have time and disposition to compensate him for 
 his loss he must go unpaid. To get a claim thus 
 allowed is usually fraught with great difficulty, 
 and if it is not a large one the amount realized 
 will not be sufficient to pay the expenses. The 
 state government thereby sets a bad example to 
 its subjects. It should be willing to receive the 
 same measure of justice which it requires others 
 to receive. If one of the community breaks his 
 contract with it a suit may be brought by it in the 
 courts. Why should it not accord the same right 
 to the other party ? 
 
 Again, the state applies a different rule to 
 claims made in its own behalf from those existing 
 against it. In the statute of limitations it pro- 
 vides that claims will be barred if not sued within 
 a certain period. Thus the private suitor may 
 lose his claim on account of delay, but the laws 
 usually provide that this statute shall have no 
 application to claims in favor of the state. In
 
 70 FALLACIES OF THE LAW. 
 
 this the state shows itself unwilling to submit to 
 its own rules of justice. It is said that the test 
 of character is the use one makes of power. The 
 fact that the state is a sovereign and the fountain 
 of power should also make it the fountain of 
 honor, and it should claim for itself no privilege 
 that it is not willing under the same circum- 
 stances to accord to the weakest of its subjects. 
 5. Distinction between civil and criminal 
 cases. The law everywhere makes a distinction 
 between the quantity of evidence required to 
 prove an ordinary fact and a fact showing a vio- 
 lation of a criminal statute. The defendant may 
 be defeated in a suit brought against him for 
 wrongfully taking the plaintiff's horse, if the fact 
 that he took it is proved by a preponderance of 
 the evidence, but he can not be convicted of 
 stealing it unless the fact that he took it is proved 
 beyond a reasonable doubt. The truth of a fact 
 does not depend at all upon the consequences 
 the law attaches to it. If a charge is true it is 
 true, whether the law makes it criminal or other- 
 wise, and if evidence really proves the truth of a 
 charge it is proved without regard to conse- 
 quences. Why then should there be such a dis- 
 tinction between civil and criminal cases ? Why 
 should it require a greater amount of evidence to
 
 FALLACIES OF THE LAW. Jl 
 
 impose a five-dollar fine than to collect a debt for 
 many thousands of dollars, or damages on ac- 
 count of a great bodily injury ? If the distinction 
 were a clear one it would not seem so bad; but 
 upon examination it will be found very hazy and 
 exceedingly difficult to apply. What is a mere 
 preponderance of the evidence is a question that 
 can not be exactly answered. To arrive at it 
 the judge or jury are asked to put the evidence 
 offered by the plaintiff on one side of an imagi- 
 nary scale and the evidence offered by the de- 
 fendant on the opposing side, and if the evidence 
 of the plaintiff weighs more than the evidence of 
 the defendant, the court should find for the plain- 
 tiff. It has often been decided that the plaintiff's 
 evidence need not be strong enough to convince 
 or satisfy the mind. The only kind of weight 
 which evidence possesses is its convincing force, 
 and when it is not sufficiently strong to convince 
 the mind of its truth it certainly has no real force 
 to prove a claim. 
 
 Proof beyond a reasonable doubt is equally 
 hazy and difficult of application. This is sup- 
 posed to be a very high degree of proof. What 
 is a reasonable doubt ? The word reasonable is 
 quite elastic, and every mind will give it a mean- 
 ing of its own. It is sometimes defined to be a
 
 72 FALLACIES OF THE LAW. 
 
 doubt that fairly arises and is not sought after. 
 This definition does not remove the difficulty; 
 for we have another elastic term in the word 
 fairly, which every man will measure according 
 to his own conception of what is fair. This rule 
 is so difficult to apply that persons may be con- 
 victed on slight evidence or acquitted when the 
 evidence of guilt is strong. There is no just 
 reason for the definition. Before a judgment is 
 entered in any proceeding the court should be 
 convinced that existing facts make such a judg- 
 ment a just one under the law. This should be 
 the rule whether the suit be for a civil debt or to 
 punish a crime. If extraordinary care is to be 
 exercised by the court in considering the evidence 
 it should be because of the importance of the 
 question involved. A judgment depriving the 
 defendant of his fortune, his liberty or his life 
 should be rendered after a more careful delibera- 
 tion and consideration of the evidence than a 
 judgment for a small debt or fine. This is apply- 
 ing to court business the same care which intelli- 
 gent people apply to all other business. 
 
 6. Covenant to repair in a lease. A covenant 
 to repair in a lease is construed in law to em- 
 brace an agreement to rebuild. Where the tenant 
 agrees to make repairs and there is no exception
 
 FALLACIES OF THE LAW. 73 
 
 in his lease qualifying the agreement, if the 
 building burns down, or is otherwise destroyed, 
 he must continue to pay rent for the premises to 
 the end of the term, and also may be required by 
 the landlord to rebuild the building. If he fails 
 to rebuild before the expiration of his term, the 
 landlord may obtain a judgment for what it will 
 cost to perform the task. With such strictness 
 is this rule enforced that no contemporaneous 
 conversation or agreements will serve in the leas i; 
 to modify the effect of this covenant to repair. 
 In a certain case the Supreme Court of Iowa en- 
 forced it against a widow and compelled the loss 
 of her small savings in replacing the building 
 destroyed by fire on the leased premises because 
 she had signed a lease containing an unqualified 
 agreement to repair. 
 
 The law of landlord and tenant was made by 
 landlords, and contains many other provisions 
 almost as severe as this. Consider another illus- 
 tration of a similar character : A tenant familiar 
 with a certain kind of business leases a building 
 for a term of years for the purpose of conducting 
 his particular business therein. The building 
 has been constructed and provided with appli- 
 ances to make it especially fit for use in such 
 business. After he rents it the state or city in
 
 74 FALLACIES OF THE LAW. 
 
 which the property is located passes a law or 
 ordinance prohibiting the use of the building for 
 the purpose for which it is intended to be used. 
 The law of landlord and tenant will give the 
 tenant no relief whatever. The public have an 
 absolute right in making police regulations to 
 forbid the use of the building for that purpose, 
 and the tenant has no recourse against the gov- 
 ernment. The landlord is permitted to enforce 
 his contract to pay the rent to the very letter, 
 and the tenant must continue to pay the rent and 
 to sustain all the loss. Is it just that the land- 
 lord should be allowed to receive full compen- 
 sation for a use which is of no value ? It is a 
 principle of justice that where two persons are 
 associated in a joint undertaking, and a loss oc- 
 curs to the common property without the fault of 
 either, each should share it equally. Why should 
 not this apply to the association of landlord and 
 tenant ? During the term of the lease each seeks 
 to derive profit from the use of the premises, and, 
 why should not a change in the law or the hap- 
 pening of a casualty that destroys the value of the 
 use have the effect of destroying the obligation of 
 the contract to pay for it, and the loss resulting 
 therefrom be apportioned between the landlord 
 and the tenant ?
 
 CHAPTER VII. 
 FALLACIES IN GENERAL LAWS Continued. 
 
 7. Property laws. The amount of property 
 which one may own will always depend upon the 
 law where the property is situated. Without the 
 protection of the government in his possession no 
 one could control very much land or personal 
 property, because he would be limited to the 
 quantity which he could defend by his own 
 prowess against all persons who might wish to 
 deprive him of his possession. What we call 
 title is purely a creature of the law, and must 
 ever depend upon the will of those who control 
 the government. It is essentially a monopoly so 
 far as the particular property is concerned, be- 
 cause it has the effect of preventing all other 
 persons from using the property except upon the 
 terms fixed by the holder of the title. Such a 
 monopoly should not be conferred except it be 
 for the common benefit. The private ownership 
 of property is essential to the happiness of a 
 civilized community, and every member before 
 he becomes incapacitated by age should have an
 
 76 FALLACIES OF THE LAW. 
 
 opportunity to acquire by his industry a sufficient 
 quantity to make himself independent of the 
 charity of his friends or his country. This he 
 may acquire in the shortest time possible to him 
 if he obeys the laws conferring equal rights and 
 privileges upon every member of the communit}'. 
 
 It frequently happens that those who are fitted 
 by nature to the acquisition of property are also 
 favored by fortune, and by unequal laws they are 
 able thus to accumulate more property than they 
 will ever need to supply their wants or the wants 
 of any of their dependents. Some of these still 
 strive to accumulate more. For personal grati- 
 fication or amusement they pile up vast quanti- 
 ties of wealth merely to gratify their personal 
 pride. Our laws place no limit whatever upon 
 the quantity of personal property or the area of 
 the earth's surface which one may acquire. Is 
 this in accordance with the general welfare in a 
 community where many want the necessaries of 
 life and but few possess its luxuries ? Should 
 one member be permitted to accumulate vastly 
 more than his needs require, merely to gratify a 
 foolish whim, a senseless if not an insane pas- 
 sion ? 
 
 Pioneers in a new country, where there is 
 room enough for all, may allow some of their
 
 FALLACIES OF THE LAW. 7/ 
 
 members to monopolize great areas of land and 
 its products, if at the time there is enough re- 
 maining so that all will have sufficient. But with 
 the increase of population the time will come 
 when a limit must be placed upon avarice. If 
 this is not done, a few, shrewder and more 
 thrifty than the rest, will acquire substantially 
 all the land and so much other wealth that they 
 can combine and reduce the others to a condition 
 of dependence. If that time has not already 
 come in this country it is close at hand. Private 
 fortunes have increased to such proportions as 
 to be dangerous to the liberties of the people. 
 The law should be so changed as to place a limit 
 upon the quantity of property which any one 
 member of the community may own. There 
 should also be similar legislation relative to cor- 
 porations. While a corporation is an aggregate 
 of persons, they all act together as a unit. The 
 quantity of property which it may be allowed to 
 own should of course be larger than the amount 
 allowed a single individual, but nevertheless it 
 should be limited. 
 
 The law places no limit upon the quantity of 
 property which may be devised by will. One 
 who has been the favorite of the law or of fortune 
 and has been able to exclude multitudes of his
 
 78 FALLACIES OF THE LAW. 
 
 fellows from vast areas of the earth's surface and 
 from their products during his life may by will 
 bestow this property upon another, and thus con- 
 tinue the exclusion long after he has ceased to 
 exist. The generous love the dying have for 
 v friends or relatives may be tolerated to a reason- 
 'able extent, but there should certainly be a limit 
 to the quantity of property that may be thus de- 
 vised. The great bulk of large fortunes not 
 needed by the dependents of the dead man 
 should, after his death, be returned to the com- 
 munity, in order that those surviving may have 
 an equal opportunity to enjoy the earth and its 
 fruits. 
 
 All persons who live on this planet must find 
 room on it for a dwelling and a place to work for 
 their own sustenance. If a few own all the land, 
 the others must be their tenants and depend upon 
 the will of these few for the kind of an existence 
 they shall have. There is no limit placed by the 
 law upon the quantity of land which one person 
 may acquire for speculative purposes and hold 
 vacant and unused. Such speculators hold land 
 unoccupied, waiting for an increase of population 
 to create a need for it, hoping to take advantage 
 of this need and raise the price of their holdings. 
 All that they thus gain is taken from the public
 
 FALLACIES OF THE LAW. 79 
 
 without any compensation. Should not the law 
 place a limit upon the quantity of vacant land 
 that any one can hold for a rise, and a limit upon 
 the time he may so hold it ? 
 
 8. Corporation laws. The laws of every state 
 provide for the formation of corporations for 
 pecuniary profit. Some laws are more liberal 
 than others, but all confer upon the stockholders 
 some immunity from the debts of the corpora- 
 tion; and excepting banking corporations, the 
 stockholders are not responsible for the debts of 
 the corporation if they have paid for the stock 
 subscribed and the corporation is organized 
 according to law. The only advantage which 
 accrues to the public from this corporation law is 
 that persons are induced thereby to invest money 
 in certain kinds of business which the public 
 desires to encourage. Persons often are induced 
 to make such investments because they stand in 
 such a situation that if the business is profitable 
 they will reap the profits, and if it is unprofitable 
 their losses will be limited by the amount of 
 stock which they have taken. If no false repre- 
 sentations are practiced upon the public, and the 
 corporation actually possesses assets equal in 
 value to the amount of its capital stock, those 
 who trust it know that they have no other prop-
 
 8o FALLACIES OF THE LAW. 
 
 erty to rely on, and they do so at their peril. 
 But in many states the laws are so framed that 
 corporations may be organized and large amounts 
 of capital stock issued without the actual pay- 
 ment to the corporation of the value of the stock. 
 In some, none of the stock is required to be paid 
 for at organization. In others, only a small por- 
 tion is required to be paid, and the portion not 
 paid stands as the liability of the stockholders. 
 The promoters of these corporations so manage 
 the matter that where payment is made for the 
 capital stock subscribed it is made by a convey- 
 ance of patent rights, mining leases, worthless 
 franchises and the like, from the promoters of the 
 corporation to the corporation. In taking these 
 conveyances they act for the corporation; and 
 being themselves both buyers and sellers, they 
 estimate the worth of this property of doubtful 
 value at prices running into millions of dollars, 
 and issue to themselves fully paid up capital 
 stock in the corporation to the amount of this fic- 
 titious estimate. 
 
 The stock thus issued is evidenced by certifi- 
 cates printed on good paper containing engraved 
 letters and pictures like those on the money of the 
 Government, and is sealed with an artistic seal. 
 This stock they sell to widows, orphans and
 
 FALLACIES OF THE LAW. 8 1 
 
 other people who are foolish enough to believe 
 that stock which appears to have the sanction of 
 the government is a safe investment. It also 
 frequently happens that the stock of these large 
 corporations is not actually subscribed for at all 
 when they are organized, the subscription being 
 merely a bogus contract. A and B, who are 
 financially responsible, employ C, a clerk who has 
 no financial existence, to subscribe for all the 
 stock of the corporation except two shares, one of 
 which is taken by A and the other by B. It is 
 not intended that C shall receive the stock thus 
 subscribed for by him. He is merely a mask 
 behind which A and B operate. Often all the 
 persons who thus subscribe for stock are of no 
 financial responsibility and never expect to ac- 
 quire anything except by fraudulent practices, 
 and what they do acquire they do not intend to 
 hold longer than necessary to put it in the names 
 of their wives, sisters or other relatives. These 
 pay for stock in their promissory notes or in the 
 worthless promissory notes of some one else, and 
 thus obtain a charter which is nothing but a 
 fraudulent device intended to fleece innocent and 
 gullible people out of their savings. By the 
 agency of such liberal state laws the United 
 States has become a rich field for shrewd rascals
 
 82 FALLACIES OF THE LAW. 
 
 operating in pursuance of the law. The laws 
 should require every corporation, before it re- 
 ceives a license to do business anywhere, to fur- 
 nish unquestionable proof that the value of its 
 assets is fully equal to the amount of the capital 
 stock which it is authorized to issue. 
 
 9. Promissory notes. A promissory note is 
 in its essence merely an agreement in writing to 
 pay money. It is simple enough by itself, but 
 the laws relating to it are very numerous and 
 bristle with arbitrary rules which would require 
 a large volume to set forth and explain fully. 
 
 One of the qualities which the law confers 
 upon instruments of this nature is that of nego- 
 tiability. If the note is payable to bearer or 
 payable to the order of some person, and the 
 amount to become due on it is definite, and the 
 time when it will become due is certain, or capa- 
 ble of being made so by the happening of a cer- 
 tain event, and the promise to pay is certain and 
 unconditional, then the note may be transferred 
 so that the legal title to it will pass from one 
 person to another, and the person receiving the 
 title, called the holder, may sue in his own name. 
 If the note is payable to bearer, a mere delivery 
 of the possession of the instrument is sufficient 
 to transfer the title; but if it is payable to the
 
 FALLACIES OF THE LAW. 83 
 
 order of some person, the said person must in- 
 dorse his name upon the back of the note. If he 
 does this, and does not qualify his indorsement, 
 he becomes liable to pay the note, provided pay- 
 ment is demanded of the maker on the day it is 
 due, and the indorser is notified of the failure on 
 the day following. If the parties reside in the 
 same place and payment is not demanded on the 
 very day the note becomes due, and the indorser 
 is not notified the very next day, the one who 
 buys the note loses all right to collect it of the 
 indorser. If the note lacks any of the elements 
 of certainty above specified, the title can not 
 ordinarily be transferred by any kind of indorse- 
 ment or assignment, and whoever buys it can not 
 bring a suit upon it against the maker unless he 
 brings it in the name of the person to whom the 
 note was originally made payable. But if it con- 
 tains all these elements of certainty and is trans- 
 ferred by delivery or by indorsement, the person 
 who buys it in good faith and pays a valuable 
 consideration before the note becomes due may 
 sue the maker in his own name, and the maker 
 then can not show as a defense that the note was 
 obtained from him by fraudulent representations 
 relative to the thing for which it was given, or 
 that there was no consideration for the note, or
 
 84 FALLACIES OF THE LAW. 
 
 that the consideration which was agreed to be 
 given for it was not given, or that any other facts 
 exist by which the payee of the note is indebted 
 to him for any sum which should be applied upon 
 the payment of the note. But the maker may 
 show that he did not sign the note and his signa- 
 ture to it is a forgery, or he may show that he 
 was by fraud induced to sign the note supposing 
 it was an instrument of a different character, or 
 he may show that the note after he signed it was 
 taken from his possession, and never had in fact 
 been delivered by him. Thus we see the law 
 allows the maker to protect himself from being 
 defrauded in certain circumstances, yet permits 
 him to be defrauded in others. 
 
 Why should the person who buys a note ac- 
 quire any greater rights than are possessed by the 
 one who sells it to him, and why should the law 
 lend its assistance to the purchaser of a promis- 
 sory note which was fraudulently obtained, and 
 thus enable him to consummate the fraud which 
 the payee is attempting to commit against the 
 maker ? The purchaser of such a note must 
 rely either upon the credit of the one who made 
 the note or upon the credit of the one who in- 
 dorsed and sold it to him, or both. If he relies 
 upon the credit of the maker he must know some-
 
 FALLACIES OF THE LAW. 85 
 
 thing about him, and he ought at least, before he 
 parts with any money or property as a consider- 
 ation for the note, to ascertain from the maker 
 whether there is a defense to it. Transactions of 
 this kind are usually made upon the credit which 
 the buyer extends to the seller, and most excep- 
 tions are cases where the buyer colludes with the 
 seller for the purpose of assisting him in collect- 
 ing an unjust claim. 
 
 Another feature of this law is objectionable. 
 In a suit brought upon a note the law presumes 
 that the holder purchased it before maturity, that 
 he paid a valuable consideration for it, and that 
 he had no notice of any defense existing in favor 
 of the maker. Thus it puts upon the maker the 
 burden of proving the contrary when he defends 
 against the note. Before he is allowed to offer 
 any evidence in his defense he must allege and 
 prove that the holder bought the paper after ma- 
 turity, or that he did not pay a valuable consid- 
 eration, or that he had knowledge of the existence 
 of a defense thereto. This rule works a great 
 injustice upon the defendant. Ordinarily there 
 is no way by which the facts relative to the pur- 
 chase of the paper by the plaintiff can be proven 
 except by the plaintiff himself, his agent, or the 
 colluding payee. All of these are unwilling wit-
 
 86 FALLACIES OF THE LAW. 
 
 nesses and interested in stating the matter 
 falsely. The defendant by putting them upon 
 the stand as witnesses takes the risk of fur- 
 nishing the testimony to defeat himself. Why 
 should not the burden be placed upon the pur- 
 chaser to show when and for what consideration 
 he purchased the paper, and that, at the time he 
 purchased it and parted with his money or prop- 
 erty, he had no knowledge or means of informa- 
 tion of the existence of a defense ? 
 
 These are but a few illustrations that tend to 
 show what pitfalls have been created by the law 
 around so simple a thing as the promise to pay. 
 Why should not a person be permitted to sell 
 and transfer a title to anything that he has 
 whether it be a house, a horse or a note and if 
 he is responsible at all for the payment of the 
 obligation which he transfers, why should he not 
 continue liable to the same extent as he would be 
 on any other obligation which he had assumed, 
 and why should not the person who buys it take 
 just the same rights the seller had and be subject 
 to the same defenses which existed against the 
 seller ? 
 
 Probably the only justification which will be 
 urged in the defense of this law is that it is a 
 great convenience to those who buy and sell
 
 FALLACIES OF THE LAW. 87 
 
 promissory notes, and that it enables such notes 
 to circulate as money, when they are negotiable 
 in form. Why should the convenience of one 
 person in the community be made a legal excuse 
 for perpetrating a fraud upon another through 
 the agency of the law ?
 
 CHAPTER VIII. 
 LEGAL FICTIONS. 
 
 A LEGAL FICTION is an assumption by the law 
 that a statement is true when everybody knows 
 it to be false. Many such fictions have been cre- 
 ated by decisions of courts. Some have worked 
 great injustice and tended to impair our judicial 
 machinery. 
 
 i. A corporation a citizen. There is a fiction 
 which considers a corporation a citizen of the 
 United States. The federal laws give the circuit 
 courts of the United States jurisdiction of con- 
 troversies arising between citizens of different 
 states, and allow citizens of one state who are 
 sued in another to remove the case from the 
 state court to the circuit court of the United 
 States. This fiction considers a corporation a 
 citizen of the state under whose laws it is organ- 
 ized. It is customary for the promoters of cor- 
 porations to organize them in states where a 
 license can be obtained for the least money and 
 where the laws grant the most liberal powers and 
 contain the least restrictions. To secure reve-
 
 FALLACIES OF THE LAW. 89 
 
 nue, some states offer superior inducements to 
 the promoters of such corporations, and the 
 result is that a large number of corporations are 
 organized in states in which they do not expect 
 to engage in business. In the state where organ- 
 ized they comply with the law by maintaining a 
 dummy office at slight expense and a set of 
 dummy directors. The same office and directors 
 may perform this service for thousands of corpo- 
 rations. When such a corporation is sued by a 
 citizen of the state where it is in business and 
 has its principal office it may, because of the fic- 
 tion aforesaid, remove the case to the circuit 
 court of the United States and compel the plain- 
 tiff to attend that court with his witnesses or be 
 deprived of any relief. The circuit court usually 
 does not sit in the county where the plaintiff 
 resides, and frequently is located a long distance 
 therefrom. Its judge was not elected by the peo- 
 ple, but was appointed for life by the President 
 of the United States. The jury in that court is 
 not selected from the people in the county where 
 the plaintiff resides, or where the cause of the 
 action arose, but is selected by federal appointees 
 from the man}' counties composing the circuit. 
 The practice in this court differs somewhat from 
 the practice of the courts where the plaintiff
 
 90 FALLACIES OF THE LAW. 
 
 resides, and the cost of the case and the expense 
 of employing counsel are much greater. If the 
 plaintiff or his opponent is dissatisfied with the 
 judgment the appeal does not go to the supreme 
 court of the state, whose judges have been elected 
 by the people, but to the United States Circuit 
 Court of Appeals, composed also of federal ap- 
 pointees holding life terms. The expenses of 
 this appeal, in court costs and counsel fees, are 
 also much greater than in the state courts. If 
 this court of appeals renders a decision unsatis- 
 factory to either party the decision must be re- 
 viewed, if at all, by the Supreme Court of the 
 United States at Washington. The case can not 
 be taken to that court for review without incur- 
 ring large expense, and appeal is often accompa- 
 nied by long delay, because the court is many 
 years behind in its docket; and unless the case is 
 entitled to be advanced because of its peculiar 
 nature, the litigant, if past his prime, must be 
 long lived if he survives to see his case reached 
 and a final judgment rendered after having trav- 
 eled the route indicated through the Supreme 
 Court of the United States, especially if the case 
 has been reversed and remanded a few times. 
 All of this delay and extraordinary expense is due 
 to the fiction under discussion. A corporation is
 
 FALLACIES OF THE LAW. 9* 
 
 not in fact a citizen. It is not even a human 
 being, or any other kind of a being. It has no 
 residence, and is just as much at home in one 
 place as another. It is merely a name under 
 which certain men have obtained a license to do 
 business and escape personal responsibility. 
 
 2. Another legal fiction is the rule of law which 
 presumes that every amendment which charges 
 a distinct act of negligence as the cause of the 
 same injury is the beginning of a new suit. If 
 the plaintiff is injured in a railroad wreck he may 
 bring a suit to recover damages and allege that 
 his injury was caused by the negligence of the 
 defendant in not providing an air-brake on the 
 train. The case may not be reached for trial 
 until more than two years have elapsed since the 
 injury. The plaintiff may then discover that an 
 air-brake was provided, but that the negligence 
 consisted in not using it. He then seeks to 
 amend his declaration by charging another kind 
 of negligence. The statute of limitations in the 
 state provides that actions for personal injury 
 must be brought within two years or they will be 
 forever barred. The court under this fiction of 
 law holds that the amendment to the declaration, 
 charging another act of negligence, is the bring- 
 ing of a new suit, and therefore a right to recover
 
 92 FALLACIES OF THE LAW. 
 
 for the injury caused by the newly alleged act of 
 negligence is barred. This fiction of course is 
 false. There is but one cause of action, and that 
 is the injury for which the suit was originally 
 brought, and an amendment alleging another act 
 of negligence is only an additional statement of 
 the cause of the same injury. But so blind is 
 the law to the facts, and so unfeeling is it to 
 human suffering, that the defendant escapes the 
 consequence of his wrong through the narrow 
 passage of this fiction. 
 
 The statute of limitations certainly was not 
 intended to produce such a result. The defend- 
 ant in such a case is sued for a specific injury, 
 and has notice that all its conduct on that subject 
 is under investigation, and is put in no worse 
 position because the precise act of negligence was 
 not sooner alleged. But if it were, and needed 
 more time to get evidence to defend against the 
 new charge of negligence, such time should be 
 granted. Instead of restricting the defendant to 
 this right, the law as now administered dis- 
 charges him from liability for all acts of negli- 
 gence not alleged in the declaration before the 
 lapse of two years. This method causes many 
 just claims to be defeated because the judge who 
 hears the case and the plaintiff's attorney differ
 
 FALLACIES OF THE LAW. 93 
 
 in their notion of the meaning of the declaration 
 or as to the nature of the act of negligence which 
 caused the injury. 
 
 Where it is plain that suit has been brought 
 to redress a certain injury, amending the declara- 
 tion should not be considered as the bringing of 
 a new suit. The statute of limitations should 
 deem an action brought when it is brought, and 
 all pleadings, whether amendments or substi- 
 tutes, which relate to the same injury should be 
 considered merely a continuation. 
 
 3. There is another fiction which holds that 
 any one who intentionally fails to comply with an 
 order of the court, or does any act in its pres- 
 ence, or interferes with any of its officers acting 
 under its authority, is guilty of a contempt of 
 court. The majesty of the occupant of the bench 
 is supposed to be insulted by these acts, and 
 therefore he causes the offender to be arrested 
 and brought before him and tried informally by 
 him, and sentences him to pay a fine or suffer a 
 term in prison. The offense may be committed 
 by a failure to pay alimony or attorney's fees 
 ordered to be paid in a divorce suit, or by mak- 
 ing a noise within the hearing of the judge, or in 
 his presence using language which he does not 
 approve, or committing some other act deemed
 
 94 FALLACIES OF THE LAW. 
 
 by him improper, such as speaking to jurymen, 
 interfering with property in the custody of receiv- 
 ers, refusing to obey an officer or a process, or 
 violating an injunction or a restraining order 
 which the court has issued. 
 
 Contempts arising from violating injunctions 
 have become very numerous, and the methods 
 adopted to punish them have an important bear- 
 ing upon civil liberty. Injunctions are issued to 
 forbid all those classes of acts which are alleged 
 to be nuisances, and to prevent all kinds of tres- 
 passes and breaches of contract. They are 
 issued to prevent misconduct or violence by 
 striking employes and their sympathizers. A 
 typical illustration of this class of injunctions is 
 the injunction issued by the federal court during 
 the great railroad strike in Chicago some years 
 ago. This injunction enjoined every inhabitant 
 of the Earth from interfering with trains carrying 
 United States mail, and the writ was served by 
 posting copies on cars and in public places about 
 the city. Much the same method was adopted in 
 the recent teamsters' strike in Chicago. 
 
 All persons charged with the violation of in- 
 junctions are attached for contempt of court. 
 The person so charged is denied all rights guar- 
 anteed by the constitution in ordinary criminal
 
 FALLACIES OF THE LAW. 95 
 
 charges. There is no indictment, no jury trial 
 allowed, no right to be confronted by witnesses, 
 and no privilege of cross-examination. He must 
 be tried by the very judge that he is charged 
 with insulting, upon written affidavits drawn up 
 by those employed against him and sworn to by 
 witnesses who may not understand their contents. 
 If convicted by this summary method the amount 
 of punishment often depends upon the caprice of 
 the court. By this method the ordinary forms of 
 law are suspended, the safeguards for the pro- 
 tection of liberty broken down, and the defendant 
 is made subject to the arbitrary will of a judge 
 who, from the very nature of the proceedings, is 
 likely to be biased against him and not give him 
 an impartial trial. 
 
 All this is done because of a fiction of law 
 that regards acts as contempt of court when they 
 were never intended as such. Disobedience of a 
 court's order, or failure to comply with a judge's 
 wishes, is no more contemptuous behavior toward 
 the judge than a violation of a law is a contempt 
 toward the legislature that passed it. In neither 
 case are the individuals who were the authors of 
 the order or law considered at all, and the act 
 converting disobedience into a personal affront 
 and punishing it as such is a most dangerous
 
 96 FALLACIES OF THE LAW. 
 
 perversion of the facts and tends in the direction 
 of enslaving the people. 
 
 The fictions above referred to, and many oth- 
 ers that may be cited, are attempts on the part of 
 the judges to make or amend laws so as to have 
 them comply with their notions as to what they 
 ought to be. If the word citizen in the constitu- 
 tion of the United States can be stretched to 
 mean a corporation, who shall fix the elasticity 
 of that venerable document ? If any act which 
 may be performed by a person can be made a 
 contempt of the court by merely calling it such, 
 what limit is there to the coercive powers and 
 expanding jurisdiction of judges ? 
 
 Fiction is out of place in the law. Judges 
 should not hold to be true that which everybody 
 knows is false. 
 
 The ordinary power to punish for contempt is 
 necessarily reposed in judges of general jurisdic- 
 tion in order that they may protect their persons 
 and their officers from interference while in the 
 conduct of their courts ; and as its name implies 
 a disdainful and insulting behavior, it undoubt- 
 edly had its origin in efforts made to punish 
 those acts which were personal affronts to the 
 presiding judge. It was for these that he was 
 permitted summarily to arrest and punish the
 
 FALLACIES OF THE LAW. 97 
 
 offender. Where acts are not of that character, 
 but are in their essence mere trespasses or in- 
 fringements upon the rights of others, no reason 
 exists why they should not be tried and punished 
 in the same manner as other offenses. It has 
 ever been the tendency of power to extend itself, 
 and so the encroachments of the judiciary upon 
 the liberty of the people has progressed until 
 these important officers assume the right to 
 obtrude their personalities into controversies both 
 civil and criminal. Thus have they become more 
 important than the legislative or the executive 
 department of the government. If by use of 
 this fiction of contempt they continue to grow in 
 power, the very foundations of our civil rights 
 will be swept away. Certainly there is a great 
 need for curbing this species of lese majesty.
 
 CHAPTER IX. 
 
 DEFECTS IN REMEDIES PROVIDED BY LAW. 
 
 LAWS conferring rights and imposing duties 
 are vain if they do not provide some form of 
 redress for the infringement of such rights and 
 the breach of such duties. A very conspicuous 
 defect in the laws of our country is their inade- 
 quacy in this respect. Some of these defective 
 features will now be pointed out. 
 
 i. Simple contracts for the payment of money 
 or delivery of property. No system of redress is 
 sufficient unless the one who has been injured is 
 compensated for the financial loss which he has 
 sustained. If in a suit to recover on a simple 
 contract a sum of money agreed to be paid the 
 suitor must lose more in time and expense to get 
 a judgment than the judgment is worth, it is 
 clear the law has provided no real remedy. 
 What would we say of a mill that took all the 
 product for grinding the grist ? Such often 
 occurs in suits on a simple contract. The sub- 
 stance of the litigation is lost to the successful 
 party because it has cost him more to get his
 
 FALLACIES OF THE LAW. 99 
 
 judgment than he can get by enforcing it. Laws 
 should permit the party entitled to recover to 
 have added to the sum originally due him the 
 value of his time and the use of the money while 
 it has been withheld from him unjustly, and all 
 costs and expenses necessary to conduct the liti- 
 gation. The laws of some states do not permit 
 the recovery of interest on the money so wrong- 
 fully withheld unless the sum has become due on 
 a written contract or on a demand liquidated 
 before a suit was brought, or the defendant has 
 placed some obstruction, otherwise than unjustly 
 defending the suit, in the way of collecting the 
 claim. 
 
 2. Suits for damages. In actions to recover 
 damages for breach of contract to pay money the 
 only sum that can be recovered in most states is 
 the amount agreed to be paid, with legal interest 
 thereon, which is usually five or six per cent. 
 The plaintiff may have needed the money due 
 him for a special purpose ; he may have entered 
 into the contract with this sole purpose in view; 
 he may have been unable to get the money from 
 any other source, and, relying upon the defend- 
 ant's promise, been placed in a position where 
 the failure has caused his ruin financially: the 
 law cares not for these damages, or the special
 
 100 FALLACIES OF THE LAW. 
 
 circumstances which have made the failure to pay 
 disastrous to him. It will allow him no more 
 than it allows any one who had lent the money 
 to get interest for use of it. It regards all the 
 plaintiff's special damages as too remote to be 
 considered. Now note how the law treats an- 
 other obligation, less definite and certain in its 
 character. 
 
 The defendant neglects to perform a duty 
 which the law imposes upon him on account of 
 his relation to the plaintiff. In consequence of 
 this the plaintiff receives a personal injury. In 
 such a case the law allows the court or jury to 
 award the injured party compensation for loss 
 of time and expenses incurred on account of his 
 injuries; it allows them to guess as to how long 
 his disability will continue, and what amount he 
 may be compelled to spend in the future for 
 medical attendance, nursing and medicine, and to 
 award him what they imagine these expenses and 
 loss will be. It also allows them to consider 
 what pain he has suffered from his injuries, and 
 what he may be caused to suffer in the future, and 
 to award him such a sum as in their discretion 
 will compensate him for this pain. The loss of 
 earnings sustained at the time of the trial, and the 
 money that at that time has been necessarily ex-
 
 FALLACIES OF THE LAW. IOI 
 
 pended on account of the injuries may be capable 
 of proof to some degree of probability, although 
 the amount the plaintiff would "have earned but 
 for his disability must-.aiways/.-be^ initte'r of 
 some conjecture, because had he nbt 'been' injured 
 he might not have found profitable employment. 
 But the length of time that his disability may 
 continue and the amount of earnings which he 
 may lose on account of such disability, and the 
 sum he may need to expend in the future on that 
 account, are of the most hazy and uncertain char- 
 acter. He may die the next day after the trial, 
 from some cause not connected with his injuries. 
 He may acquire an occupation in which the disa- 
 bility sustained will not deter him from receiving 
 full wages. He may be cured by some new dis- 
 covery of science, or he may get well without the 
 doctor's aid. So many circumstances may pre- 
 vent a continuation of his losses that the length 
 of their duration is beyond mortal prevision. To 
 this the law also directs the jury to add compen- 
 sation for pain he has suffered and will surfer in 
 the future. By what process of mental action 
 can pain be measured in dollars and cents ? Can 
 heart throbs be given weight in coin ? May 
 pangs be measured by greenbacks, at so much 
 per pang ? If such a measurement were possible,
 
 102 FALLACIES OF THE LAW. 
 
 the evidence of the number of heart throbs and 
 painful pulsations is seldom sufficiently definite 
 so that a certain su'nr could be computed even 
 for. past suffering, and there is no basis whatever 
 for computing future suffering. What is the 
 result of these indefinite rules of law? It is this: 
 By the heart-racking pictures which the attorney 
 for the plaintiff in his last speech may paint on 
 the walls of their imagination the jury are in- 
 flamed to a white heat in sympathy with suffering, 
 and they go to the juryroom and guess at a sum. 
 The amount is sometimes small, but ordinarily 
 it is more than the average man can accumulate 
 in a lifetime. One man on the jury more force- 
 ful and fluent than his fellows may reduce the 
 sum to a mere trifle, or he may cause it to reach 
 to colossal proportions. 
 
 Thus with a strange inconsistency the law that 
 is niggardly in dealing with a suitor who seeks 
 to recover upon a definite contract, and restricts 
 him to simple interest for his damages and holds 
 all other losses too remote, allows another suitor 
 in the same court, for the breach of a duty no 
 more sacred and much less definite, to wander 
 into dreamland for evidence to swell his damages. 
 
 3. Costs of suit. The laws usually include in 
 the judgment certain items of expense which are
 
 FALLACIES OF THE LAW. 103 
 
 called costs. These are commonly awarded to 
 the plaintiff in all cases where it is found that he 
 is entitled to recover any sum whatever, unless 
 that sum had been tendered to him before the 
 suit was brought, and awarded to the defendant 
 where the plaintiff fails to recover any portion of 
 his claim. The costs thus allowed are usually 
 the small sums paid to the clerk for his docket 
 fee and to the sheriff or constable for serving the 
 summons or notice of the suit. Sometimes they 
 are large in suits in chancery, and even at law, 
 where the depositions of many witnesses have 
 been taken. As they usually contain no compen- 
 sation to the successful suitor for his loss of time 
 or expenses in employing an attorney, they fall 
 far short of justice. They are also unjust to the 
 defeated party where he has acted in good faith 
 in prosecuting or defending the suit. So difficult 
 of solution are questions of law that men of the 
 greatest learning and power of analysis often dis- 
 agree widely, and where such questions arise and 
 make a suit at law necessary to settle the con- 
 troversy no reason exists why one of the parties, 
 who has been free from intentional wrong, should 
 be compelled to pay all the costs incurred by the 
 other in prosecuting or defending the suit. The 
 outlays in costs necessary to pay the court's
 
 104 FALLACIES OF THE LAW. 
 
 officers should be divided equally, and all other 
 costs and expenses made by each party should 
 be borne by the party incurring them. But 
 where it appears from the evidence or otherwise 
 that the suit has been brought or the defense 
 made in bad faith, the successful party should 
 recover such a sum as will make him whole for 
 the wrongful act of the other. To the costs of 
 the court should be added a reasonable sum for 
 his loss of time, attorney's fees, and other ex- 
 penses, and the whole be included in the judg- 
 ment in his favor. Nothing less can be considered 
 justice where the plaintiff intentionally prosecutes 
 a spurious claim or the defendant fraudulently 
 urges a false defense. 
 
 4. Exemplary damages. In suits for damages 
 caused by wrongful acts which are shown to have 
 been inspired by malice the freakish law makes 
 another picturesque contortion. It allows the 
 jury to award what are known as "exemplary 
 damages." These are designed to punish the 
 defendant, and are in addition to the actual loss 
 sustained. They give the plaintiff money that he 
 is not entitled to, in order that the defendant may 
 be sufficiently punished for what the court or 
 jury believe were malicious motives. The plain- 
 tiff having been made whole for all his actual
 
 FALLACIES OF THE LAW. 105 
 
 loss, the additional sum may be regarded as 
 smart money. The defendant is made to smart 
 for the plaintiff's benefit. 
 
 The law usually punishes by fines and im- 
 prisonments, and the fines go into the public 
 treasury. But vengeance in a suit of this kind 
 belongs neither to God nor to the state, it comes 
 in hard cash to the pocket of a suitor. The prac- 
 tice of allowing exemplary damages is not in 
 harmony with the other rules of the law and is 
 most pernicious for three reasons : 
 
 First. It tends to provoke a spirit of revenge 
 which is likely to cause ill feeling and disorder 
 in society. No man pays smart money, awarded 
 to punish him for his malicious motives, without 
 having his malice many times increased. Every 
 recollection of that experience inspires his hatred 
 and gives him a desire to retaliate against his 
 adversary. Thus is the very object sought by the 
 law defeated. 
 
 Second. It teaches injustice; for it permits the 
 plaintiff to acquire money for which he has given 
 nothing, and makes the court and jury agents 
 for picking the pocket of one member of the com- 
 munity for the enrichment of another. Any 
 scheme which allows one person to take by force 
 money from another, without giving value re-
 
 106 FALLACIES OF THE LAW, 
 
 ceived or as compensation for loss actually sus- 
 tained, is unjust, and not even the panoply of 
 the government or the solemnity of court pro- 
 ceedings can deprive it of its evil aspect. 
 
 Third. There is no measure by which the jury 
 can accurately fix the sum essential to inflict the 
 punishment. The amount they award depends 
 upon the nature and characteristics of the jury. 
 If they are vicious and revengeful, they may 
 allow a large sum; if they are kind and charita- 
 ble, the award will be a trifle. Thus the punish- 
 ment is meted out by the hand of chance. 
 
 If the law would allow just compensation for 
 all losses sustained, including payment for the 
 time, attorney's fees and court expenses required 
 to secure redress, there would be no excuse for 
 permitting the jury to award exemplary damages. 
 Where punishment is provided by law, there 
 should be a definite limit, so that one person will 
 not receive more punishment than another for 
 the doing of the same act. 
 
 5. Defense of laches. This doctrine should 
 be considered as a part of the law of negligence. 
 Chancery courts have invented it as a sort of 
 equitable statute of limitations. When it ap- 
 pears that a suitor who has long been aware of 
 his rights has delayed bringing a suit to enforce
 
 FALLACIES OF THE LAW. 107 
 
 them, and his delay has not been caused by sick- 
 ness, disability, absence of the defendant or 
 other facts which in the opinion of the court is a 
 sufficient excuse, and the defendant has in the 
 meantime changed his position, so that he is less 
 able to make a defense than he was at the time 
 the cause of action arose, the court may refuse, 
 on the ground of "laches," to grant the suitor 
 any relief. Having slept upon his rights, the 
 chancery court, which favors only the vigilant, 
 will not allow him to awaken and assert them 
 after a lapse of a long period. The length of 
 time necessary to constitute such a delay as to 
 make one guilty of laches has not been definitely 
 determined ; it depends upon the special circum- 
 stances of each case, and the view the court 
 takes of them. Thus each judge becomes a law 
 unto himself and gives relief or refuses it at his 
 discretion. 
 
 This doctrine must be justified, if at all, upon 
 the notion that a creditor is in duty bound to sue 
 his debtor within a reasonable time, and if he 
 does not, any disadvantage the debtor sustains 
 may defeat the creditor's entire claim, as a sort 
 of punishment for the breach of duty. There is 
 nothing in the relation of debtor and creditor 
 from which such a duty can arise. The only
 
 108 FALLACIES OF THE LAW. 
 
 duty that arises in such a relation is the duty of 
 the debtor to pay his debt, and his delay in doing 
 this should not be a reason for absolving him. 
 The doctrine is therefore unjust; for it permits 
 those who fail to discharge their just obligations 
 to urge their own default as a defense to a just 
 claim. If there is any time within which suits 
 must be brought, the period should be made defi- 
 nite by law, so that persons may be aware of it 
 and none be deprived of his rights by the caprice 
 or discretion of some judge. 
 
 6. Defense for illegality. Sometimes parties 
 who are ignorant of the law enter into contracts 
 that are forbidden by it; sometimes such contracts 
 are entered into when one of the parties knows 
 that the law forbids the contract and willfully 
 violates it, while the other is ignorant that the 
 contract is thus forbidden; and sometimes both 
 parties intentionally enter into a contract which 
 they both know is forbidden by law. Among the 
 illegal contracts frequently entered into may be 
 mentioned those that relate to gambling transac- 
 tions, notes that are executed on the sabbath day, 
 contracts to pay for intoxicating liquor to be used 
 as a beverage where the law prohibits the sale of 
 such liquor for that purpose, and contracts in- 
 tended to hinder, delay or defraud creditors.
 
 FALLACIES OF THE LAW. 109 
 
 All such are held to be illegal, and if a suit is 
 brought on such a contract to enforce it, or to 
 recover back money or property transferred 
 under it, the plaintiff will be denied any relief 
 whatever. He may have parted with his entire 
 fortune under the contract without knowing of 
 its illegal character, yet the court turns its back 
 and refuses to recognize him. 
 
 When the contract is an executory one, and 
 neither party has parted with anything under it, 
 a refusal to recognize it may be proper, but where 
 one party is ignorant that the contract is illegal, 
 and has been induced by the other to transfer to 
 him money or property in pursuance of the con- 
 tract, a refusal of the law to recognize it is very 
 unjust to the innocent party. Even where both 
 parties are equally guilty of an intention to vio- 
 late the law in making the contract, and one of 
 them has parted with his property under it, to 
 permit the one who has acquired the property to 
 plead illegality of the contract as an excuse for 
 repudiating it is certainly contrary to the dictates 
 of an enlightened conscience. 
 
 The court is guilty of affectation when it tells 
 the party seeking relief that justice will not toler- 
 ate his presence because, forsooth, he has vio- 
 lated the law. Where violations of the law are
 
 110 FALLACIES OF THE LAW. 
 
 to be punished there should be certain definite 
 penalties, applying alike to all persons equally 
 guilty of the violation. Is it not a bad manage- 
 ment thus to fine one violator the entire sum he 
 has paid on account of the illegal contract and 
 reward the other and equally guilty party by al- 
 lowing him to retain the entire amount ? 
 
 The courts are not so squeamish in refusing 
 relief to the violator of the law, providing his 
 violation does not pertain to the contract in con- 
 troversy. The worst criminal in the community 
 may bring a suit against the purest saint, and 
 neither the bad character of the one nor the noble 
 nature of the other will be permitted to turn the 
 scale a fraction of a hair. But if it be held that 
 in making the contract in suit a law, criminal in 
 its nature, has been violated, though the knowl- 
 edge of the violation could not positively be dis- 
 covered until the decision was made by the highest 
 court to which the case could be taken, and the 
 plaintiff has, in good faith under this contract, 
 transferred the accumulation of a life of honest 
 toil and it has thereby come into the possession 
 of the greatest criminal, so hypercritical and 
 delicately sensitive is the law that, because of this 
 violation, it denies the plaintiff any relief what- 
 ever. Does not the law in this respect show a
 
 FALLACIES OF THE LAW. Ill 
 
 lack of discrimination ? Would it not be more 
 sensible to compel the doing of justice between 
 the parties and then punish them equally for vio- 
 lating the law ? 
 
 7. Suits to correct mistakes in contracts and 
 conveyances. All persons are liable to mistakes, 
 even in dealing with familiar matters. Any 
 system of jurisprudence which does not make 
 allowances for relief against the effects of such 
 mistakes when they have been clearly shown is 
 sadly deficient. When such a mistake has 
 caused a contract or conveyance to be made dif- 
 ferent from what was intended, there should be 
 some method for correcting the mistake. Our 
 laws recognize two kinds of mistakes. They are 
 called mistakes of fact and mistakes of law. For 
 the first the law has great charity and is quick to 
 relieve any one who has been injured thereby 
 without any fault of his own. If one kills a 
 neighbor, supposing him to be a burglar, he is 
 guilty of no crime. If one is induced to enter 
 into a contract by a material mistake relative to 
 the character of the thing contracted for, the 
 court will relieve him from his contract. But if 
 the mistake be one of law, the rule is very differ- 
 ent. No amount of ignorance of law will be 
 allowed as an excuse for a crime, or afford relief
 
 1 1 2 FALL A CIES OF THE LA W. 
 
 from a contract or conveyance. The law pre- 
 sumes that every one is familiar with it. This 
 presumption is certainly not true. No one knows 
 all the law, and only a small portion of it exists 
 in a form in which it can be known. There is no 
 v real distinction between a law that can be known 
 and any other fact that can be known. If it be 
 just to permit ignorance of facts to be an excuse, 
 and thus allow the ignorant to escape the conse- 
 quence of their acts, why should not ignorance of 
 the law also be an excuse? 
 
 If one in possession of facts relative to a piece 
 of property which he wishes to sell misrepresents 
 its character and thereby induces another to pur- 
 chase it, and the purchaser has at hand no means 
 of information to detect the falsity of the state- 
 ment, the law permits the defrauded party to 
 avoid the contract; but if one who has knowledge 
 of a law of which another is ignorant falsely 
 states the law and induces the ignorant to rely 
 upon his misstatement, and thereby obtains his 
 property, the law affords no remedy whatever to 
 the defrauded party. Is not a law which allows 
 itself to be thus misrepresented for the purpose 
 of defrauding another a disgrace to the jurispru- 
 dence of an intelligent people ? To presume 
 that all persons know the law may be necessary
 
 FALLACIES OF THE LAW. 113 
 
 so far as putting the burden upon the person 
 claiming a mistake to prove his ignorance, but it 
 is at best a violent presumption. Where it is 
 clearly shown to the satisfaction of the court or 
 jury in a civil case that a party is likely to lose 
 on account of relying upon a mistake of law, 
 whether arising from the misrepresentations of 
 the other party or the mistake of his legal advi- 
 ser, the court should interfere and prevent the 
 loss. 
 
 In criminal matters a different situation arises. 
 There are some acts whose criminal nature is ap- 
 parent to every one having knowledge of right 
 and wrong. But there are many others which 
 involve no moral turpitude, and their criminality 
 consists solely in the fact that they have been 
 forbidden by the enactment of a legislature or 
 the ordinance of a city, and no one who has not 
 made a special study of these enactments and 
 ordinances can have a full knowledge of the acts 
 thus forbidden. In such a case the accused 
 should be permitted to purge himself of a crimi- 
 nal intent by proving his lack of knowledge. 
 His violation is only accident, and a law which 
 does not discriminate between accidents and in- 
 tentional violations lacks one of the principal 
 ingredients of a just criminal statute.
 
 CHAPTER X. . 
 DEFECTIVE JUDICIAL MACHINERY. 
 
 I. WRITTEN pleadings. When one claims that 
 another has wronged him, and he seeks redress, 
 he applies to the courts created by law for a legal 
 remedy. This application is called a suit; the 
 person bringing it, the plaintiff or complainant; 
 the one sued, the defendant. A case might arise 
 where the party thus sued would have no knowl- 
 edge of the nature of the complaint against him 
 unless informed of it in writing, but such a situa- 
 tion seldom occurs. If the complaining party 
 refuses, on request of the defendant, to give 
 information as to the cause of his complaint, the 
 court can order him to do so, and refuse to hear 
 the case until the defendant has had a chance to 
 get ready and present his defense. This method 
 of informing each party of the claims of the other 
 appears very simple, but there has been insti- 
 tuted a system of written pleadings designed to 
 accomplish that result. These pleadings have 
 been refined upon until they have become very 
 complicated. The preparation of such plead-
 
 FALLACIES OF THE LAW. 115 
 
 ings has become a fine art which is often fraught 
 with great difficulties and frequently requires a 
 most careful attention to technical rules of form 
 and delicate distinctions in substance. What is 
 known as the common -law system of written 
 pleadings has been the growth of many centu- 
 ries. It was a part of the common law of Eng- 
 land, and was in force in this country prior to the 
 Revolution. When our independence was estab- 
 lished we retained it with the English common 
 law. According to this system the plaintiff first 
 filed a written statement of his claim, called a 
 declaration. This the defendant answered by a 
 written statement of his defense, called a plea. 
 The plaintiff might then reply to this plea by a 
 statement called a replication. To this replica- 
 tion the defendant might rejoin by a statement 
 called a rejoinder. To this rejoinder the plaintiff 
 might file a statement called a surrejoinder. To 
 this surrejoinder the defendant might file a rebut- 
 ter, and the plaintiff to this rebutter might file a 
 surrebutter. Thus the parties might continue 
 indefinitely to wrangle in writing with each other. 
 The statements that might be made subsequent 
 to the surrebutter were so seldom used that they 
 acquired no names. There is another pleading 
 called a demurrer with which either party might
 
 Il6 FALLACIES OF THE LAW. 
 
 attack the pleading of the other. This demurrer 
 amounts to a claim that if the facts alleged in 
 the pleading assailed were true, still they would 
 not be sufficient to constitute a legal claim or 
 defense. When in the progress of the pleadings 
 a condition was reached where one party made a 
 precise statement of fact according to the form 
 provided by law, and it was unequivocally denied 
 by the other, there was an issue formed. This 
 issue either party was entitled to have a jury 
 called to try. 
 
 This system is quite scientific when fully under- 
 stood by bench and bar, and was useful in England 
 when it came into being. The courts at that time 
 met but seldom. The distance the parties must 
 go with their witnesses to attend them was often 
 great, travel difficult and expensive, and it was 
 very necessary for each to know exactly what 
 matters were actually in dispute, so that he 
 could decide what witnesses might be needed. 
 When in any kind of intellectual contest ceremo- 
 nies are provided, the tendency has always been 
 to lose sight of the real matter in dispute in a 
 multitude of controversies relating to the appli- 
 cation of the ceremonies. And so the centuries 
 have developed a great number of arbitrary rules 
 relating to these pleadings, and these have often
 
 FALLACIES OF THE LAW. 117 
 
 caused the merits of the suit to be overlooked in 
 the controversies over the pleadings. 
 
 The legislatures of many states have made 
 modifications of the common law relative to 
 pleadings. In a few the system has been en- 
 tirely abolished and a code adopted providing 
 for written pleadings of a different sort, but 
 everywhere a great number of questions fre- 
 quently arise for decision relative to the forms 
 and sufficiency of written pleadings. The rules 
 require that all the facts necessary to constitute 
 a cause of action or defense be stated, and the 
 evidence offered by each party must correspond 
 with the facts alleged in the pleadings. On ac- 
 count of this rule the plaintiff usually states his 
 claim in many different ways, each statement 
 being called a count. Not quite certain what 
 he will be able to prove, he makes as many differ- 
 ent statements of his claim as his imagination 
 can suggest, hoping that he will be able to prove 
 some of the statements of it to be true. 
 
 The writer once tried a case wherein the 
 plaintiff sued to recover against an insurance 
 company for changing its plan of insurance and 
 raising the rate of premium on his life policy. 
 The plaintiff stated his claim in seventy-five dif- 
 ferent counts. These covered about one thou-
 
 Il8 FALLACIES OF THE LAW. 
 
 sand pages of typewriting. Imagine several pleas 
 filed to each of these seventy-five counts, several 
 replications filed to each plea, several rejoinders 
 to each replication, and so on, and you will un- 
 derstand how very complicated a small suit may 
 be made by this system of written pleadings. 
 Often more time is spent in discussing these than 
 should be required to try the suit on its merits. 
 But the great waste of time and labor inciden- 
 tal to written pleadings is not their worst feature. 
 The nice correspondence required between these 
 pleadings and the evidence introduced to sustain 
 them often causes disaster to a just claim. Even 
 after a cause has been fairly tried, and the plain- 
 tiff has shown himself entitled to recover, and a 
 verdict rendered and judgment entered thereon 
 in his favor, he may lose because of the insuffi- 
 ciency of the allegations in his declaration to 
 support the judgment. Not long ago a judgment 
 of $12,000 was reversed by the Supreme Court of 
 Illinois because that court considered the state- 
 ments in the declaration insufficient to constitute 
 a cause of action. The plaintiff had sustained 
 a personal injury, disabling him for life. His 
 attorney was a lawyer of unusual skill in such 
 matters; the case was tried in the circuit court, 
 and that court held the declaration to be suffi-
 
 FALLACIES OF THE LAW. 119 
 
 cient and gave judgment on the verdict. The 
 Appellate Court affirmed the judgment. The Su- 
 preme Court, however, was of the opinion that 
 the facts out of which the law created the duty 
 were not sufficiently set forth in the declaration; 
 and so the court set aside the judgment. The 
 time for beginning a new suit had expired and 
 the plaintiff was thus deprived of any compensa- 
 tion for his injury. He was beaten not because 
 of lack of evidence to support his claim, but 
 merely because of technical defects in his decla- 
 ration. This is but one of many cases where 
 justice has miscarried because of the rules relat- 
 ing to these written pleadings. The pages of our 
 reports contain very many such cases wherein 
 judgments have been reversed because, forsooth, 
 the upper courts have construed the pleadings 
 differently from the trial courts and have found a 
 lack of mechanical fitness between the allega- 
 tions in them and the facts proved. If the 
 object of these pleadings is to notify the oppo- 
 site party in advance as to the character of the 
 claim which he must prepare to meet, and he 
 is taken by surprise, his remedy would reason- 
 ably be confined to asking for further time to 
 prepare for trial. When the testimony is all 
 in, a verdict rendered and judgment entered
 
 120 FALLACIES OF THE LAW. 
 
 thereon, the effect of written pleadings should 
 be at an end. 
 
 Courts are now frequent, the distances to them 
 usually short, and the means of travel swift and 
 inexpensive. The circumstances which origi- 
 nally made written pleadings desirable no longer 
 have being. In most cases the party sued knows 
 what the suit is about without any statement. 
 Except in rare instances he now gets no import- 
 ant information that he could not as easily have 
 acquired without the written pleadings. Why 
 then would it not be sufficient to state in the 
 summons or notice of the suit the amount the 
 plaintiff claims to be due him and the nature of 
 that claim? If the defendant requires further 
 light on the subject, why should he not ask the 
 plaintiff by letter or otherwise to state more spe- 
 cifically the nature of the claim ? Seldom would 
 there be any difficulty in getting ready for trial 
 under such circumstances, and if any did arise 
 the court could easily protect the party from L 
 injury by allowing him further time. We would 
 then be rid of the tedious labor and danger of 
 disaster which come from attempts to comply 
 with the rules relating to written pleadings. 
 
 2. The jury system. A hinderance of even 
 greater importance than the incubus of written
 
 FALLACIES OF THE LAW. 121 
 
 pleadings is that part of our judicial machinery 
 called the jury. In Frailties of the Jury, a pre- 
 vious volume of this series, is exhibited specifi- 
 cally many of the faults of the jury system, and 
 the reader is referred to that volume for a full 
 discussion of the subject. 
 
 The jury is composed of twelve men unlearned 
 in the law, unfamiliar with its language, and 
 unused to court proceedings. They are selected 
 on account of their ignorance of such matters. 
 They are asked to hear, understand and remem- 
 ber all the proceedings and evidence during a 
 trial of many days, and to comprehend and apply 
 many written instructions given to them by the 
 court. These instructions are couched in legal 
 phrases and are often of the most abstruse char- 
 acter. After being agitated and played upon by 
 the speeches of trained advocates they are locked 
 in a room and required to agree unanimously 
 upon a verdict. They have had no training for 
 the task imposed, are confused and bewildered 
 by the strange proceedings, have had no oppor- 
 tunity to take or preserve notes of the evidence, 
 and usually have but a hazy recollection of what 
 has been submitted to them. Most are novices 
 in judging credulity and in every way unfitted to 
 sift a mass of lies and ascertain the truth. Their
 
 122 FALLACIES OF THE LAW. 
 
 unanimous verdict is usually unanimous in form 
 only. It is often reached after a long and bitter 
 wrangle in which those of the strongest wills 
 and loudest voices have crowed down and brow- 
 beaten their weaker associates into an agreement. 
 Often the jury are exhausted by the long confine- 
 ment in the uncomfortable quarters before this 
 result is reached. This spurious product of coer- 
 cion and compromise called a verdict seldom 
 represents the honest judgment of any one on 
 the jury, and often bears no resemblance to jus- 
 tice. For some error in the proceedings it is 
 liable to be set aside by the court trying the case 
 or by the reviewing court to which the case is 
 taken. Then a new trial is had, before another 
 jury. The same proceedings are repeated again 
 and again, causing enormous expense and loss of 
 time to the parties, until patience is exhausted 
 and they settle the case rather than suffer any 
 more losses in trying to get a just judgment. 
 
 The twelve men on the jury are usually taken 
 from occupations in which they are experts, and 
 in which their services are valuable to themselves 
 and the community. They are forced to neglect 
 their own affairs and made captives of the law to 
 take part in a proceeding where their services are 
 practically worthless. Is it not an egregious
 
 FALLACIES OF THE LAW. 123 
 
 mistake thus to force men to perform a task for 
 which they possess no skill or training ? They 
 surely can be of no real assistance to judges who 
 possess expert knowledge and skill for the par- 
 ticular duty. 
 
 This jury institution is accountable for most 
 of the other obstructions that clog the judicial 
 machinery. Were it not for it the reasons urged 
 for written pleadings would mainly disappear 
 and there would no longer be any necessity for 
 forms of action. The division of the different 
 suits into the two branches called law and chan- 
 cery would be meaningless. The main distinc- 
 tion between such cases is the right to a jury 
 trial in the suits at law, which is denied in chan- 
 cery. We have for centuries conceded that the 
 suits which we call chancery may be safely tried 
 by a single judge without a jury. The amount 
 involved in these chancery suits is as large, and 
 the questions of fact arising on the evidence are 
 as intricate, as those involved in law actions. 
 Yet we cling with dogged persistency to the idea 
 that a jury is necessary to determine properly 
 the most trifling matter if the suit is not in chan- 
 cery. 
 
 The abolition of the jury in civil cases would 
 enable us to wipe out this vexatious distinction
 
 124 FALLACIES OF THE LAW. 
 
 between law and chancery practice. There would 
 no longer be a necessity for keeping up a chan- 
 cery court for the trial of cases which are not 
 adapted to be heard by a jury. The same tribu- 
 nal could at all times try all manner of contro- 
 versies, using the special skill that comes from 
 long practice, and could render judgments accord- 
 ing to the very right in the matter. When the 
 controversies were too important to be trusted 
 to one judge, other judges might sit with him. 
 Certainly three judges ought to be sufficient to 
 try the most intricate controversy. Cases on 
 appeal might then be reviewed before a larger 
 bench, not to find fault in the record, but to de- 
 cide the case on its real merits. Then no longer 
 would lawsuits be determined by trifles. Never 
 again would the suitor be thrown out of court in 
 disgust because of some defect in his pleading. 
 Never again would the finding be set aside be- 
 cause a jury had been improperly instructed or 
 proper instructions had been refused, or because 
 improper evidence had been admitted. There 
 would be no more mistrials on account of the dis- 
 agreement of the jury or the misconduct of the 
 jury, or the misconduct of counsel in addressing 
 them. Justice would never again be defeated 
 because the plaintiff's attorney had mistaken the
 
 FALLACIES OF THE LAW. 125 
 
 side of court to approach and had brought his 
 suit at law when he should have brought it in 
 chancery, or brought it in chancery when it was 
 cognizable in law only. Never again would a 
 just cause be lost because of lack of precise me- 
 chanical accuracy between the pleadings and the 
 proofs. No longer would the lower and higher 
 courts play battledoor and shuttlecock, throwing 
 the case back and forth on account of errors in 
 the proceedings, until even the winning suitor 
 actually loses his case because of expenses in- 
 curred. All the immense mass of false work 
 which the centuries have built about court pro- 
 ceedings, and which tends to make the trial of 
 suits complex and difficult, would be torn away, 
 and the simple act of ascertaining the truth and 
 applying the law would be performed by compe- 
 tent judges selected and trained for that purpose.
 
 CHAPTER XI. 
 
 DEFECTIVE JUDICIAL MACHINERY Continued. 
 
 3. AN important obstruction in the enforce- 
 ment of the criminal law is the necessity of pro- 
 curing an indictment of the accused by the grand 
 jury before he can be put on trial on serious 
 criminal charges. This requirement is even a 
 greater clog in the criminal jurisprudence than 
 the requirement of written pleadings in civil suits. 
 This grand jury has from fifteen to twenty-four 
 members, and twelve or more must vote for the 
 indictment of the accused before he can be prose- 
 cuted. They are not expected to hear evidence 
 in his behalf, but only testimony against him. 
 They are intended by law to be a kind of smelling 
 committee who will ferret out secret crimes which 
 no person appears to prosecute. But they usu- 
 ally consider no matters except such as are pre- 
 sented to them by the prosecuting attorney, and 
 hear only the witnesses he brings before them. 
 They act under his advice in voting, and when 
 an indictment is found he prepares the document 
 and their foreman indorses it as a true bill.
 
 FALLACIES OF THE LAW. 127 
 
 This indictment is a mere pleading in which 
 the prosecuting attorney, representing the state 
 and using the name of the grand jury as his 
 agency, charges the defendant with the commis- 
 sion of a crime. The rules of law that apply to 
 the form and substance of an indictment are 
 many and strict, and very thin and delicate are 
 the distinctions made by courts in defining and 
 construing the words used in them. This makes 
 the framing of one very difficult. A slight defect 
 may cause it to be quashed either by the trial 
 court or by the court to which the case may be 
 taken on appeal. 
 
 If any legal ceremony relative to it is omitted; 
 if it lacks in any particular to state clearly, defi- 
 nitely and certainly the exact ingredients of the 
 offense ; if it fails to allege that the act was com- 
 mitted within the jurisdiction of the court, or to 
 allege facts showing that it is not barred by the 
 statute of limitations, then the indictment may 
 be quashed. Sometimes questions as to the suf- 
 ficiency of the indictment are not decided until 
 so long after the commission of the offense that 
 the guilty party can not be prosecuted on a new 
 indictment. Then if the indictment is quashed 
 the defendant is entitled to be set free, because 
 an indictment can not be amended in a matter of
 
 128 FALLACIES OF THE LAW. 
 
 substance. This method of defeating criminal 
 prosecutions is said to prevail because the law 
 guards the liberty of the accused with jealous 
 care. The jealous care of the law ought to relate 
 to the merits of the case. The law should be 
 careful to give to every person charged a fair 
 trial by a competent court and under sensible 
 rules. The main office of the indictment is to 
 notify the accused of the accusation against him 
 and give him an opportunity to prepare for trial. 
 Why should not the law permit it to be amended 
 when found defective? If the defendant is not 
 then prepared for trial on the amended indict- 
 ment, further time might be given. 
 
 If the indictment is held sufficient and the 
 trial proceeds, it flounders through another maze 
 of difficulties. The defendant can be convicted 
 of only the precise crime charged in the indict- 
 ment, or some crime of a less degree included 
 within the one charged. So very strict is the 
 law in this respect that the Illinois Supreme 
 Court discharged a defendant who was indicted 
 for attempting to obtain money by a confidence 
 game because the evidence established that he 
 did obtain the money. This followed a decision 
 in another state, where a defendant indicted for 
 an attempt to commit rape was acquitted because
 
 FALLACIES OF THE LAW. 129 
 
 it was shown that he succeeded. Every feature 
 of the evidence requires this precision, and the 
 labyrinth of strict rules through which such a 
 cause must proceed to secure a conviction makes 
 the conviction of even a notorious criminal a task 
 of great difficulty when his defense is in the 
 hands of a skillful lawyer. Because of these dif- 
 ficulties many hardened criminals go unpunished 
 after the state has expended large sums in trying 
 to convict them. More than half the efforts made 
 to punish wealthy law-breakers are rendered 
 abortive because of the clumsy character of our 
 criminal jurisprudence. Sometimes it is the 
 indictment which is defective; sometimes the 
 evidence does not fit the indictment; sometimes 
 the defeat of the state is due to the fact that the 
 jury is incompetent or has been swayed by sym- 
 pathy or corrupted by bribe money. 
 
 The grand jury is certainly a useless appli- 
 ance. Its members ordinarily possess no skill for 
 their task. They know neither the laws nor the 
 ingredients of the offenses which they are asked 
 to investigate, and seldom understand the legal 
 meaning of the words in the indictment. They 
 are usually mere tools in the hands of the prose- 
 cuting attorney, and are mainly useful to him as 
 an excuse for prosecuting influential violators.
 
 130 FALLACIES OF THE LAW. 
 
 We are fearfully afflicted by a legacy from 
 antiquity. When sparsely settled Britain was 
 ruled by brutal kings who placed their tools upon 
 the bench and used the laws for pillage and 
 revenge, much of our criminal jurisprudence was 
 invented. The grand jury then gave some pro- 
 tection to the common people against the machi- 
 nations of these monarchs. But circumstances 
 are changed. The people attempt to rule them- 
 selves, and with such laxity that those who 
 violate the law are seldom prosecuted unless a 
 popular demand exists, and even then the prosecu- 
 tion often fails because of lack of energy. Surely 
 we need no blocks to push the prosecution from 
 the track or brakes to make it move more slowly. 
 This ancient system is no longer suited to our 
 needs. Its grand and petit juries are both anti- 
 quated, and, like the vermiform appendix, exist 
 but as a source of irritation and expense. 
 
 In the place of this grand jury the law should 
 provide a board of persons who are familiar with 
 the criminal statutes of the state, the rules of 
 evidence and the quantity of proof necessary to 
 secure a conviction. Instead of sitting in secret 
 session as a sort of star-chamber inquisition and 
 hearing but one side of a complaint, the session 
 of the board should be public, unless special cir-
 
 FALLACIES OF THE LAW. 131 
 
 cumstances require concealment. They should 
 give the accused an opportunity to tell his story 
 and have his witnesses heard if he desires. Three 
 members ought to be enough for this board. Two 
 of them should be convinced that a crime has 
 been committed and that it is probable the party 
 charged has committed it before he is required 
 to submit to a trial. If an indictment found by 
 them be not, in the opinion of the court, suffi- 
 cient to inform the accused of the nature of the 
 charge, it should be amended and the accused 
 given ample time to prepare for trial. If on the 
 trial the accused is found guilty of any crime 
 growing out of the transactions investigated, he 
 should be convicted. 
 
 All rules should be directed to the one aim of 
 giving the defendant a fair trial and full oppor- 
 tunity to present all his evidence before a deci- 
 sion is made. To accomplish this it is not 
 necessary that every step be over pitfalls calcu- 
 lated to cause the prosecution to stumble. Such 
 rules serve only to enable the guilty to escape. 
 The innocent can be amply protected without 
 them. All that innocent persons need or desire 
 is a fair trial. This is more likely to be pro- 
 cured before trained judges under sensible rules 
 than from untrained and easily swayed jurors
 
 132 FALLACIES OF THE LAW. 
 
 surrounded by arbitrary and senseless technicali- 
 ties which tend to prevent a trial upon the merits 
 of the charge. 
 
 4. Limits to jurisdiction of courts. Another 
 source of trouble in judicial proceedings is the 
 great variety of courts. The judicial power is 
 split into fragments, and only a small portion is 
 intrusted to each court. This must be exercised, 
 if at all, within limits prescribed by the constitu- 
 tion or laws passed in pursuance thereof. There 
 are justice courts that have jurisdiction of some 
 kinds of controversies if the amount involved 
 does not exceed a certain sum. There are city 
 courts and municipal courts, with jurisdiction of 
 some kinds of claims and amounts within specific 
 territorial limits. There are other courts that 
 may try all kinds of suits, but these are restrict- 
 ed in their jurisdiction to a prescribed territory 
 within which the parties, or some of them, must 
 reside or be served. In consequence of this 
 division it frequently happens that a court in 
 which a suit is brought holds that it has jurisdic- 
 tion and on appeal it is held not to have it. The 
 plaintiff is then turned out of court empty handed 
 with a large bill of costs to pay. Sometimes it 
 has taken so long to determine the question that 
 the right to bring another suit is barred by the
 
 FALLACIES OF THE LAW. 133 
 
 statute of limitations, and thus the plaintiff is 
 denied any relief whatever. The law allows a 
 defendant, if he claims he has not been properly 
 served with summons for the suit, to appear in 
 court and move to quash the summons. If he 
 does not succeed he may take the case to a 
 higher court and thus determine the question 
 whether or not he has been properly brought be- 
 fore the court. If the object of a summons is to 
 bring the defendant into court, when he gets 
 there for any purpose its object should be con- 
 sidered accomplished. He should not be per- 
 mitted to say he is in court for the purpose of 
 objecting to its process, and not there for the 
 purpose of defending the suit. 
 
 To obviate the difficulties and losses that are 
 likely to arise from mistakes made in bringing 
 suits in courts that have no jurisdiction, would 
 it not be better to give every judge jurisdiction 
 of all suits of every kind brought against any 
 one anywhere in the state, subject to the right of 
 the defendant to have the case transferred to the 
 county of his residence for a trial ? Instead of 
 having courts of so many different grades, why 
 not limit the number to a trial court and a court 
 of review and allow the judges in the trial courts 
 to select the court of review from their own num-
 
 134 FALLACIES OF THE LAW. 
 
 her, giving preference to those who have had the 
 largest experience ? Where the case involves 
 but a small sum, say a $500 debt, or a charge 
 punishable with a short imprisonment, say thirty 
 days in jail, one judge ought to be capable of 
 trying it without assistance. Where the amount 
 is greater, on account of the responsibility, and 
 to insure deliberation, three judges could be pro- 
 vided if either party made the request. If this 
 was found to require the election of too many 
 judicial officers, the law could provide for ap- 
 pointing temporarily two lawyers or other com- 
 petent persons to sit with the judge in the 
 particular case. 
 
 The law should provide at all times abundant 
 officials who possess the legal authority, skill and 
 character essential to the discharge of the judicial 
 duties, in order that all litigants may procure an 
 impartial and speedy trial of their causes. This 
 ought not to be difficult in this country where 
 there are many who are trained in a knowledge 
 of law and legal procedure and accustomed to 
 consider evidence. It certainly is not necessary 
 to draft motormen from their cars, cab drivers 
 from their cabs, bricklayers from their buildings 
 and clerks from their counters to help the pre- 
 siding judge try a case.
 
 CHAPTER XII. 
 
 LAWS CONCERNING EVIDENCE. 
 
 NOTHING can be more important to the just 
 decision of a case than the truth relative to the 
 matters in controversy, and any rules which have 
 the effect of shutting out the truth tend to dis- 
 able the judicial machinery in its most important 
 function. There are many such rules, a few of 
 which will be mentioned. Not a few of the 
 sources of information relied upon by men in the 
 most important transactions of life are rejected 
 under the rules of evidence. Often a just claim 
 is defeated because the claimant is not permitted 
 to prove the facts. Among the legal impedi- 
 ments in the pursuit of truth are the following: 
 
 i. The statute of frauds. This was originally 
 an English statute, enacted in the year 1677, and 
 may be considered a part of the common law. 
 Many modifications of it have been made by 
 statutes in the various states, but some of its 
 provisions are in force in all the states. A 
 detailed discussion of this statute will not be 
 attempted, but the defective character of the
 
 136 FALLACIES OF THE LAW. 
 
 principles which underlie it will be noticed. 
 The effect of it is to prevent the enforcement of 
 certain kinds of contracts unless there be some 
 note or memorandum in writing, signed by the 
 party to be charged, or his authorized agent. 
 To illustrate: Contracts relating to the sale of 
 personal property, where the price exceeds ten 
 pounds, can not be proved unless in writing and 
 signed as aforesaid ; or unless the contract is 
 taken out of the operation of this statute because 
 the purchaser has accepted a part of the goods, 
 or has paid a part of the price. The limit of ten 
 pounds must have been the price put upon the 
 character of an Englishman for truth at that 
 time, it being supposed that he could be trusted 
 to tell the truth on a question not involving more 
 than that amount. The value of that sum was, 
 however, much greater then than now, and if 
 character for truth has not depreciated since 
 then, the limit should be raised to a higher 
 figure. The limit has been abolished in some 
 states and the statute made to apply to any sale 
 of personal property without regard to the amount 
 in value. Thus if a bill of goods is ordered sent 
 to a residence and a written order properly 
 signed is not given, when the goods arrive the 
 purchaser may refuse to receive or pay for them
 
 FALLACIES OF THE LAW. 137 
 
 because the evidence of the sale is not in writing. 
 Millions of contracts made almost daily between 
 citizens of the United States could thus be 
 avoided because of insufficient evidence. Cus- 
 tomers are seldom asked to sign written contracts 
 when they order goods, and usually do not pay a 
 part of the purchase price when giving the order. 
 
 This statute requires similar evidence from 
 many other kinds of contracts. Take another 
 illustration: If on the soth of April A agrees 
 orally to lease from B a dwelling for one year 
 beginning the ist of May, either may repudiate 
 the lease, because the agreement is not to be per- 
 formed within one year, and so must be in writ- 
 ing; but if the same agreement be made on the 
 ist of May it is binding. 
 
 If after A has worked for B, C promises orally 
 to pay for the work, the agreement can not be 
 proved, because it is a promise to pay the debt 
 of another. If before the work is done C prom- 
 ises to pay for it if B does not, the promise can 
 not be proved unless in writing, because it is an 
 agreement to answer for B's default; but if C 
 promises unconditionally to pay for the work, 
 before it is performed, the promise need not be 
 in writing. If A agrees to pay B a sum of money 
 if she will marry him, or to pay the sum to an-
 
 138 FALLACIES OF THE LAW. 
 
 other for the same consideration, the promise can 
 not be proved except by written evidence. If A 
 merely agrees with B that he will marry her the 
 promise need not have written evidence to sup- 
 port it. A may agree with B to build for him a 
 house upon B's land, and the agreement can be 
 proved by oral evidence, but if B agrees with A 
 to give him a lot therefor the agreement can not 
 be so proved. Contracts involving immense 
 sums of money may be proved by oral testimony, 
 if they do not come within some one of the pro- 
 visions of this statute; but if they do the ears of 
 the court are shut to any testimony, however 
 convincing it may be, except written memoran- 
 dums signed by the party to be charged, or by 
 his authorized agent. If a hundred credible wit- 
 nesses had stood by and heard the contract made 
 and each had written down the exact words of 
 the agreement, or if the party to be charged had 
 himself entered it in writing in his own books 
 and was made to take the witness-stand and 
 swear that he made the contract as claimed, the 
 evidence would not avail. So securely are the 
 hands of the court tied by this statute that it 
 can give no attention whatever to any such testi- 
 mony. From this one would suppose that there 
 was in a written memorandum something sacred
 
 FALLACIES OF THE LAW. 139 
 
 that made it an object of worship in a court of 
 justice. 
 
 2. Effect of written agreements. The law has 
 great reverence for written agreements. Where 
 the parties have executed an agreement in writing 
 all oral agreements made relating to the subject 
 are presumed to be merged in the written one 
 and superseded by it, and no oral evidence of any 
 conversation or agreements entered into at the 
 time is competent to vary the terms of the writ- 
 ing. The written instrument, if not ambiguous, 
 is read and interpreted by the court and enforced 
 according to the purport of its language. If it 
 is ambiguous the ambiguity may be explained by 
 oral evidence of what was said and done when it 
 was made. Written agreements are usually pre- 
 pared by filling printed blanks. Such blanks 
 commonly contain a large number of provisions 
 printed in small type. They are in a language 
 unfamiliar to people not educated in legal phra- 
 seology. The parties seldom read them and 
 rarely attempt to interpret the meaning of these 
 provisions. If they did make such an attempt it 
 would probably be futile. The first effort made 
 to unravel them is when one of the parties fails 
 to keep his part of the contract, and then his 
 lawyer searches the document for an excuse. As
 
 140 FALLACIES OF THE LAW. 
 
 an illustration of the common forms of written 
 agreements consider leases and insurance poli- 
 cies. The usual lease for an office in the city 
 of Chicago contains several pages of fine print. 
 Perhaps most tenants sign substantially the satr.e 
 form, the principal change being in the descrip- 
 tion of the rooms and the amount of rent to be 
 paid. Seldom if ever does the landlord or his 
 agent or any of his tenants read the leases 
 signed, and but few of them could understand 
 the provisions if they did. These blanks- were 
 drawn by some one at some time, but no one 
 knows by whom or when. They are obtained 
 from a dealer in blanks and filled out by clerks 
 who usually know just enough to fill the blank 
 spaces. After these leases have been signed 
 they are pigeonholed and no attention paid to 
 their numerous provisions except the one provid- 
 ing for the payment of rent. They contain many 
 restrictions that are frequently violated by both 
 parties. The real understanding between the 
 landlord and his tenants is that the landlord will 
 clean and put the premises in proper repair each 
 year and make them fit for the purpose for which 
 they are leased, and that he will make all per- 
 manent repairs that become necessary and fur- 
 nish heat, and that the tenant will pay the rent
 
 FALLACIES OF THE LAW. 141 
 
 monthly. These observations apply with the 
 same force to leases for flats or tenement houses. 
 Such a lease is quite as bulky and fat in condi- 
 tions and provisions and is as frequently violated 
 as the office lease. If a controversy arises be- 
 tween the landlord and his tenant, and the court 
 is called upon to act on the contract, the law is 
 absolutely blind to the real agreement between 
 the parties. The blank lease, with all its fine- 
 print provisions, is found and brought forth as 
 the only evidence of the agreement, and by it all 
 the rights are measured. 
 
 Now consider the life-insurance policy. A 
 smooth solicitor asks a few questions which he 
 usually asserts are mere matters of form. From 
 the answers made he fills out a large printed 
 blank containing numerous provisions in small 
 type. This the applicant often signs without 
 even reading its contents. If he does read it, he 
 ordinarily does not understand the nature and 
 import of these provisions. He is examined by 
 the company's physician, pays the premium ex- 
 acted by the company, and receives a large docu- 
 ment containing its name in big letters, engraved 
 beautifully on elegant paper, and the words of a 
 contract insuring him, printed in bold, ornate 
 type. Then follow several pages in fine print
 
 142 FALLACIES. OF THE LAW. 
 
 containing prohibitions upon his conduct, condi- 
 tions precedent and subsequent, and warranties, 
 all of which are tied together with a stipulation 
 that in case of a failure to keep any of them he 
 shall forfeit all rights under the policy and lose 
 v the payments he has made thereunder. The por- 
 tion of the policy containing the provisions and 
 conditions he usually does not read. If he does, 
 he can not understand them. Having paid his 
 money for life insurance, and having been exam- 
 ined by the company's physician, he reposes 
 upon the sweet supposition that his life is actually 
 insured and that in the event of his death his 
 beneficiaries will be paid the sum mentioned in 
 the policy. This perhaps is also the belief of the 
 agent of the company. It is not expected that 
 all these fine-print provisions will be heeded and 
 strictly enforced. In most cases the company 
 pays no attention whatever to them, and when a 
 death occurs it usually pays the sum agreed upon 
 without delay or question. But if the circum- 
 stances cause a suspicion that the insured has 
 intended to defraud the company, and a contro- 
 versy arises so that the matter gets into court, 
 the real intention and understanding of the par- 
 ties then becomes immaterial. The court looks 
 only to the policy, and enforces all its provisions
 
 FALLACIES OF THE LAW. 143 
 
 according to their technical meaning, except the 
 parts which the evidence shows have been waived. 
 The beneficiaries named in the policy often find 
 that there was really no insurance contract that 
 bound the company, because the words in fine 
 print gave the company the right, under the facts 
 as they existed, to take and keep the money of the 
 applicant and forfeit the policy. Much the same 
 method is pursued in making contracts for acci- 
 dent insurance. Such is the effect of the rule 
 which prevents parties in the event of litigation 
 from showing what was the real agreement in- 
 tended. 
 
 Perhaps the most important contract in the 
 world is the marriage contract. This is usually 
 not in writing. All the obligations of the con- 
 tracting parties are fixed by law and can not be 
 varied by any form of agreement. If it is not 
 necessary in making a marriage contract to put 
 it in writing and have it contain a hundred pro- 
 visions and conditions, why may not the law like- 
 wise fix the obligations of landlord and tenant, 
 insurer and insured, and the obligations of many 
 of the other common relations of life, so that they 
 can not be affected by private agreements ? The 
 only question that would then be necessary to be 
 determined in the event of a dispute would be
 
 144 FALLACIES OF THE LAW. 
 
 whether the parties had actually entered into the 
 relation. We would then have no more bulky 
 blank contracts full of traps and abstruse provi- 
 sions to puzzle the wits of trained lawyers and 
 judges and prevent a just judgment according to 
 the real understanding of the parties. 
 
 It may be conceded that in many cases a writ- 
 ten contract is the best evidence of what the par- 
 ties actually intended to agree upon at the time 
 it was executed, but such is not always the case. 
 While a written contract ought to be admissible 
 for what it is actually worth, other credible 
 evidence should also be admitted and given the 
 weight to which under the particular circum- 
 stances of the case it appears to be entitled. 
 The fact that a writing is prepared and signed as 
 evidence of the agreement must depend for its 
 force as evidence upon all the circumstances sur- 
 rounding the act. What was said by the parties 
 immediately preceding, at the time and immedi- 
 ately after, in characterizing the act, and their 
 declarations as to what was intended by it, when 
 established by credible testimony, should be ad- 
 missible in determining whether or not the minds 
 of the parties did in fact meet in an agreement, 
 and what the real agreement was. The defect in 
 the rule under discussion is that it singles out
 
 FALLACIES OF THE LAW. 1 45 
 
 one act which tends to show the real agreement 
 and not only gives it paramount force but makes 
 it absolutely conclusive of the intention of the 
 parties. 
 
 The same reason for criticism applies to the 
 statute of frauds, above referred to. Parties fre- 
 quently enter into agreements without making 
 the written memorandum required, and would be 
 able, but for this statute, to prove their agree- 
 ment by evidence quite as credible as a written 
 memorandum signed by the parties. If the mem- 
 orandum could prove itself without any oral evi- 
 dence the statute would seem more consistent, 
 but the memorandum must be identified and 
 proven as genuine by oral evidence, and if it is 
 signed by an agent his authority must ordinarily 
 be proven in the same way. In admitting such 
 proof the law gives credit to oral evidence and 
 the recollections of persons present as to what 
 took place. If such evidence is competent and 
 reliable to prove the making of the memorandum, 
 why should it not have some weight in establish- 
 ing the other parts of the transaction ?
 
 CHAPTER XIII. 
 LAWS CONCERNING EVIDENCE Continued. 
 
 3. Effect of a seal. The reverence which the 
 law has for ordinary written agreements is far 
 surpassed by its blind adoration of what is called 
 a "seal." An instrument which has a seal affixed 
 to it or printed thereon possesses a kind of royal 
 dignity among instruments. No one is allowed 
 to dispute the sufficiency of its consideration in a 
 court of law, and no written instrument without 
 a seal is competent to prove that a sealed in- 
 strument has been subsequently modified by the 
 parties to it. Let us for a moment analyze this 
 fetich of the law. 
 
 The use of a seal is of ancient origin. Kings 
 and nobles who could not write their names had 
 devices for making an impression on wax, and 
 when they wished to execute an instrument they 
 stuck to it a large lump of wax and impressed 
 their seal upon the wax. This sealing was sup- 
 posed to be an act of great solemnity. Such 
 seals are no longer in use : now a mere scroll or 
 scrawl, or any irregular mark or blotch made
 
 FALLACIES OF THE LAW. 147 
 
 with the pen opposite the name of the signer is 
 sufficient to constitute a seal. Even the word 
 SEAL printed on the paper at the end of the line 
 where the signature is placed has been held suf- 
 ficient to make the instrument signed a sealed 
 instrument. If an instrument lacks this seal it 
 may be set aside or avoided by proof that it was 
 given without consideration, or that the consid- 
 eration to be given has failed, or that fraudulent 
 representations induced the acceptance of the 
 consideration for which it was given. If, how- 
 ever, it has marks or printing from which an in- 
 tention to seal it may be inferred, the sufficiency 
 of its consideration is conclusively presumed in 
 law. If the person executing it knew what he 
 was doing when he signed it, a court of law will 
 give him no relief for any fraud committed upon 
 him to induce its execution. This scroll, scrawl 
 or other device shuts the doors of the court 
 against him; but the swindler who has induced 
 the execution of this sealed instrument by false 
 representations can call upon the courts to aid 
 him garner the fruits of his rascality. Only a 
 few of those who sign instruments which purport 
 to have a seal know that the seal has this effect. 
 Most do not even note that the word "seal" is 
 adjacent to the place where they append their
 
 148 FALLACIES OF THE LAW. 
 
 names. They are thus easily caught in a trap 
 from which a court of law is powerless to extri- 
 cate them. Some of the states have abolished 
 the common-law effect of a seal, and all the oth- 
 ers ought to do so. 
 
 Courts of chancery may correct mutual mis- 
 takes in written agreements when clearly proven, 
 and grant relief from i-ealed instruments when 
 obtained by fraudulent representations relative 
 to the consideration. Fraud should always 
 vitiate every instrument which it has induced, 
 and courts should always be ready to hear 
 credible evidence of the real consideration and 
 quick to prevent injustice of every form. 
 
 4. Effect of certain ceremonies. The laws of 
 every state provide for specific ceremonies con- 
 nected with the doing of certain acts. Take as 
 an illustration the laws relating to the execution 
 of a will. Ordinarily there must be two persons 
 not interested in the will to witness its execution. 
 The testator must request them to witness it, and 
 they must both be present and see him sign, 
 and themselves sign as witnesses in his presence 
 and in the presence of each other. If one of 
 these witnesses is interested in the will, or is not 
 formally requested by the testator to act as a 
 witness, or is not present when the other witness
 
 FALLACIES OF THE LAW. 149 
 
 signs, or does not see the testator append his 
 signature, the will is invalid. And such is the 
 rule in states where the testator or any one can 
 execute a valid deed without any one signing as 
 a witness, and convey property of any kind or 
 value. Proof of the grantor's signature to such 
 a deed can be made by the testimony of any one 
 who knows it, whether interested or not. Even 
 the testimony of the grantee to whom the prop- 
 erty is conveyed may be sufficient to prove the 
 signature. Why should there be such discrimi- 
 nation between a will and an ordinary deed of 
 conveyance ? Wills are often made under cir- 
 cumstances of great distress, and sometimes ex- 
 citement, and these very technical provisions are 
 overlooked. W'here some of them are omitted 
 they are usually supplied by false testimony. 
 The real question ought always to be, What dis- 
 position did the testator actually intend to make 
 of his property ? If his actual intention and his 
 belief that he did what was necessary to effect his 
 intention can be clearly proved by credible evi- 
 dence, that ought to be sufficient. The law now 
 concerns itself more with formal ceremonies of 
 the most trivial nature than with the testator's 
 actual purpose. If the slightest of these ceremo- 
 nies are not shown to have been observed, no
 
 150 FALLACIES OF THE LAW. 
 
 amount of other proof, however credible, will suf- 
 fice to establish the intention of the deceased. 
 
 Of a slightly different nature is the law rela- 
 tive to gifts of personal property otherwise than 
 by will. To constitute such a gift the law re- 
 quires that the giver part with all possession and 
 dominion over the thing given. He must either 
 deliver it to the person to whom he intends to 
 give it or to some third person for his benefit, or 
 do what amounts to an absolute surrender of all 
 dominion over the thing given. In this particu- 
 lar the law is very strict, and no amount of evi- 
 dence, however clear and conclusive, as to the 
 intention of the donor to make the gift, and no 
 number of acts or declarations showing a present 
 purpose of carrying out that intention, is suffi- 
 cient unless dominion by the donor is actually 
 surrendered. This rule has caused a great num- 
 ber of gifts to fail. Though the giver intended 
 to make the gifts, and supposed that they were 
 completed, the things he intended to give have 
 become, after his death, the property of those he 
 intended should not have them. In a recent case 
 in Illinois an uncle executed checks for $33,000 
 on his funds in bank and delivered them to his 
 beloved niece who had faithfully served him as 
 housekeeper and companion for over forty years.
 
 FALLACIES OF THE LAW. 151 
 
 He fell ill soon afterward and she was too much 
 occupied in nursing him to ask for the money 
 until after his death. In settling his estate the 
 Illinois courts held that the checks were intended 
 as a gift of money, and that, the money not being 
 actually delivered to her, the gift was incomplete. 
 So the real intention of the uncle was defeated, 
 the niece deprived of her just dues by a barren 
 technicality, and the money intended for her was 
 distributed among other persons contrary to the 
 uncle's intentions. 
 
 Persons having money or property in safety 
 deposit boxes or other receptacles often suppose 
 they can give it to some loved one by written or 
 oral declarations in the presence of witnesses, 
 and do not perform the ceremony of surrendering 
 to the object of their bounty the actual posses- 
 sion of the article, and when death intervenes this 
 laudable effort of love is perverted by this fallacy 
 of the law. When the evidence of the intention 
 to make a gift is so clear and conclusive as to 
 leave no doubt of it, this intention, and not a 
 mere ceremony, should govern. The actual de- 
 livery of possession is only one circumstance 
 tending to show the intention of the giver; and 
 while it is some evidence of an intention to make 
 a gift, written words or oral declarations of the
 
 152 FALLACIES OF THE LAW. 
 
 donor, when clearly proved, may be just as strong 
 evidence, and sometimes stronger. All laws 
 that have the effect of making one kind of evi- 
 dence absolutely essential to prove a fact are im- 
 pediments in the course of justice. They prevent 
 the truth from being shown and deprive persons 
 of the property intended to be conveyed to them 
 and confer it upon others who have no right 
 whatever to receive it. 
 
 This is also true of all laws relative to the 
 authentification of deeds and other conveyances 
 in writing, foreign and domestic. It is wise to 
 provide that a certain ceremony or kind of certifi- 
 cate shall be evidence sufficient to show that the 
 document was executed, until the contrary is 
 made to appear, but no ceremony or certificate 
 should be the only evidence admissible to prove 
 the execution. Any evidence entitled to credit 
 in the ordinary affairs of human life should be as 
 proper to prove the execution of a written instru- 
 ment as to prove any other fact. 
 
 5. Effect of interest and relationship. At 
 common law all who were directly interested in 
 the result of a suit were unqualified to give testi- 
 mony as witnesses. This rule was based upon 
 the legal presumption that persons will swear 
 falsely to conserve their own interests. This
 
 FALLACIES OF THE LAW. 153 
 
 notion has since been very generally repudiated, 
 and probably every state has changed this com- 
 mon-law rule, so that interested persons are now 
 permitted to testify in general matters, but the 
 fact of their interest may be shown and consid- 
 ered in deciding what weight shall be given to 
 their evidence. There are, however, in most of 
 the states some vestiges of the old doctrine still 
 remaining. Where one of the parties dies during 
 the litigation, or becomes insane or otherwise 
 incapable of giving evidence, the other party and 
 all others having a direct pecuniary interest in 
 the result of the suit are usually disqualified from 
 giving testimony. Also where the suit is to 
 establish a claim against the estate of a deceased 
 or an insane person, those who have a direct 
 interest in the claim are ordinarily made incom- 
 petent to testify. In a suit brought by a husband 
 and wife, not against each other, usually neither 
 is permitted to testify for or against the other. 
 Disqualifying parties and witnesses because of 
 the death or disability of the other party to the 
 suit or transaction is said to be intended to 
 protect from spurious claims the estates of 
 persons deceased or disabled. The law should 
 certainly be as diligent in protecting living per- 
 sons from spurious claims as in keeping intact
 
 154 FALLACIES OF THE LAW. 
 
 the estates of persons deceased or disabled. If 
 the disqualification is justified it must be on 
 the presumption that the oath of a person thus 
 interested is entitled to no weight whatever as 
 evidence; that such a person is certain to swear 
 falsely if given an opportunity, and that the court 
 or jury will not be able to detect the falsity of the 
 evidence. Therefore he is not permitted to speak 
 at all. When we consider that most persons tell 
 the truth relative to their pecuniary affairs, and 
 that the commerce of the world is based upon 
 honor and the veracity of persons who may be 
 interested to speak falsely, how narrow and far- 
 fetched appears this legal presumption. There 
 are doubtless some persons who would take 
 advantage of such a situation and trump up a 
 fraudulent claim against the estate of a deceased 
 or insane person and support it by perjury, but 
 they are few in proportion to the whole number 
 who are thus disqualified by this statute. The 
 death or disability of a defendant may make it 
 more difficult to defend and thus seem to give an 
 advantage to the party surviving. All this can 
 be considered by court or jury in weighing the 
 evidence, and if they believe the character of the 
 plaintiff is such that he would swear falsely, be- 
 cause he has an opportunity to do so and not be
 
 FALLACIES OF THE LAW. 155 
 
 contradicted, they should give less weight to the 
 story he tells. A law denying to all the right 
 of testifying because some might abuse it is 
 manifestly unjust. 
 
 Husband and wife are not allowed to testify 
 for each other because it is said they are one, 
 and when one branch of the one has been a wit- 
 ness the other branch should be silent, for one 
 person in law can not be two witnesses. No 
 argument should be necessary to refute this as- 
 sumption. Again, it is said that the marriage 
 state produces such a unity of interests that there 
 is no reliability in the testimony of either when 
 given in behalf of the other. This is another 
 disqualification for interest, and having repudia- 
 ted that part of the common law making interest 
 a disqualification generally, it would be consis- 
 tent to remove this disability of husband and 
 wife. It is also claimed that husband and wife 
 should not be permitted to testify 'against each 
 other because it might disturb the peace of the 
 marital state. This is another illustration of the 
 great love the law has for the peace of the mar- 
 riage state. It would preserve it at the cost of 
 truth and justice. It would prefer to render an 
 unjust judgment rather than risk a disturbance 
 of marital peace by requiring the spouse of the
 
 156 FALLACIES OF THE LAW. 
 
 party suing to tell what he or she knew of the 
 transaction. This of course is a matter of taste, 
 and may afford a reason why those united in 
 wedlock should not be compelled to testify 
 against each other, but it is certainly not a reason 
 why they should not be permitted to testify for 
 each other if they wish. 
 
 What credit shall be given the testimony of a 
 particular person or class of persons depends 
 upon too many circumstances to be a fit subject 
 for general legislation. The credibility of wit- 
 nesses and the reliance that may be placed upon 
 certain facts and circumstances ought to be left 
 for determination by the court that tries the suit. 
 Those who sit in judgment have a better oppor- 
 tunity for sifting the true from the false than any 
 one else can have. All legislation on the subject 
 must apply generally and thereby often exclude 
 the true with the false. 
 
 In judicial proceedings the truth is the precious 
 gem sought, and the diligent searcher should not 
 be particular about the character of the soil where 
 the search is made. Like the beautiful flower that 
 lifts its stainless petals from the mire, the truth 
 when found will wear a radiance undimmed by 
 whatever may be near it, and it will be easily 
 recognized by the practised eye of a just judge.
 
 CHAPTER XIV. 
 
 EFFECT OF A JUDGMENT. 
 
 i. SETTING aside judgments for error. The 
 trial of a suit before a jury is usually an exciting 
 experience for all concerned. The parties, their 
 attorneys, the witnesses, and often the judge, are 
 kept in a high state of nervous tension during 
 the entire proceedings. It is a great intellectual 
 battle, and even when the amount at stake is 
 small there is always an intense desire to win, 
 which is enough to keep everybody connected 
 with the matter in a state of feverish agitation. 
 Such an atmosphere is well adapted to breeding 
 errors, and surely there are enough opportuni- 
 ties for a large brood. There are usually many 
 questions relative to the fitness and sufficiency 
 of the written pleadings, and many more relative 
 to the admissibility of evidence. The jury must 
 obtain their knowledge of law from the judge's 
 instructions, and numerous difficult questions 
 usually arise relative to the action of the court in 
 giving or refusing to give instructions. The at- 
 torneys may be guilty of misconduct in address-
 
 158 FALLACIES OF THE LAW. 
 
 ing the jury, and sometimes members of the jury 
 are guilty of misconduct. All the proceedings 
 are made of record, and if on a review of this 
 record in an upper court it is found that an error 
 which might have affected the result of the case 
 has been committed in the court below, the ver- 
 dict and judgment of the lower court may be set 
 aside and the cause may be tried again, before 
 another jury. There are so many doubtful points 
 to be ruled upon, and the ruling is so often re- 
 quired to be made without time for deliberation, 
 that an absolutely flawless record is seldom made 
 by the court in the trial of a case. If the judge 
 commits no error, the jury may commit one that 
 in the opinion of the reviewing court is sufficient 
 to set aside the verdict. When we consider the 
 many opportunities for committing errors, it is 
 remarkable that so many judgments are permitted 
 to stand. Fewer judgments would stand if it 
 were not for other rules which often defeat or 
 disable the party seeking to review the record 
 and prevent him from getting a hearing on the 
 errors assigned. There may be two and some- 
 times three higher courts to which the case may 
 be taken for review. All these courts have spe- 
 cial powers and rules of practice which must be 
 strictly observed. Any mistake in selecting the
 
 FALLACIES OF THE LAW. 159 
 
 court or in conducting the proceedings therein 
 is likely to result in defeat to the party making 
 the mistake. To secure a review the question to 
 be reviewed must have been raised in the court 
 below by making an objection to the ruling of 
 the court when it was about to occur, and after it 
 occurred an exception must have been taken to 
 the ruling. The party complaining must say 
 he excepts to the ruling. If he utters the word 
 "exception" after the ruling is announced by 
 the court, that is sufficient. Unless the record 
 shows such an exception was taken at the time 
 of the ruling the court will not review the deci- 
 sion. 
 
 Is not this rule requiring exceptions a mere 
 quibble ? When a person objects to a ruling, 
 why may he not be considered dissatisfied with 
 any ruling made against the objection? Why 
 should he be required to say more ? Judges em- 
 ployed to administer justice should not be ham- 
 pered by such trifles, and where it appears by the 
 record that any illegal action has been taken, and 
 it has probably caused an unjust judgment, the 
 court on review ought to correct the error, even 
 though no objection was made at the time. All 
 such shackles which prevent courts from admin- 
 istering justice should be removed. All rules
 
 160 FALLACIES OF THE LAW. 
 
 and ceremonies of every nature should be sub- 
 ject to the one great aim and all should wait on 
 justice. 
 
 The form of the objection made is also impor- 
 tant. It sometimes happens that the complain- 
 ing party has objected and excepted to the ruling 
 of the court, but his objection is held insufficient 
 in form. Sometimes the objection is general 
 where it should have been specific and have 
 stated the precise ground of the objection, or 
 a wrong ground may be stated when a good one 
 exists. In either event the objection and excep- 
 tion will not be sufficient to secure a reversal. 
 There are many very strict rules relative to pre- 
 paring bills of exception, abstracts of the record, 
 assigning errors, constructing briefs and argu- 
 ments and similar matters. A slight deviation 
 from these rules may render abortive any effort 
 to procure a review. Perhaps one-third of the 
 efforts to secure a review fail in whole or in part 
 because of a failure to comply with these rules. 
 About two-fifths of the cases fully reviewed are 
 reversed and the judgments of the lower court 
 set aside. Many suits are thus required to be 
 retried many times before the end is reached. 
 
 No language can convey an adequate idea of 
 the vexations that spring from this intricate and
 
 FALLACIES OF THE LAW, 161 
 
 cumbrous mass of judicial machinery which has 
 been briefly sketched in these pages. Nothing 
 but the misery of actual experience will suffice. 
 One who has spent many years of time and in- 
 curred great expense in a desperate struggle for 
 justice; who during that time has been held on 
 the rack oscillating between hope and fear, weary 
 from sleepless nights, and has appeared at last 
 before some great court of his country, may 
 listen to the solemn words of its broad-browed 
 Chief Justice confessing for the court that its 
 members are powerless to grant him any relief; 
 that they reluctantly deprive him of his fortune 
 because of some of these spider-web rules of their 
 own weaving which tie them hand and foot and 
 disable them from meting out justice to him. 
 Only those who have had such an experience can 
 fully appreciate the anguish and exasperation 
 that are caused by this judicial machinery. It is 
 incredible that such a device has been so long 
 tolerated by civilized men. There is surely no 
 private business that would long employ such a 
 method. 
 
 2. Laws destroying the force of the judgment. 
 After having labored through the anxious travail 
 of a lawsuit, and having run a gauntlet from the 
 lowest to the highest courts, and when the end is
 
 1 62 FALLACIES OF THE LAW. 
 
 reached and a judgment is rendered in his favor, 
 the triumphant suitor may congratulate himself 
 on his good luck and suppose that a judgment in 
 his favor means something. When the august 
 court decrees that he shall have and recover a 
 certain sum he may imagine he is likely to receive 
 something of value. In many cases the suitor 
 finds that this solemn emanation from the court, 
 and which it has cost him much to procure, is not 
 worth the paper upon which it is written, because 
 of other laws which engraft exceptions upon the 
 order and make it ineffective. He can not have 
 and recover unless the judgment defendant pos- 
 sesses property that may be sold to satisfy the 
 judgment. Often he finds that the defendant has 
 never acquired any such property, or if he had 
 previously acquired it he has parted with it dur- 
 ing the long and tedious proceedings. The de- 
 fendant may still retain a home and household 
 furniture and much other personal property, and 
 be earning fair wages, but all this property and 
 earnings have been made exempt from execution 
 by the law, and the defendant may retain and 
 enjoy it, and carry on his customary affairs the 
 same as he did before the judgment was entered. 
 He need have no regard whatever to that order 
 which the plaintiff has gone to such trouble and
 
 FALLACIES OF THE LAW. 163 
 
 expense to obtain. But the plaintiff may still 
 cherish the hope that the debtor may sometime 
 by good luck, industry or inheritance accumulate 
 property out of which the judgment may be satis- 
 fied. This too is likely to prove a delusion; for 
 if the debtor anticipates such acquisitions, the 
 law has provided a broad and easy way for him 
 to escape paying the judgment. At an expense 
 of less than fifty dollars he may apply to the 
 bankrupt court and be forever released and dis- 
 charged from this judgment and other debts. 
 Thus we see how utterly worthless the judgment 
 of the court may become in a civil suit. Where 
 the suit is criminal in its nature and the defend- 
 ant is convicted of embezzling money or stealing 
 property, or intentionally disabling a person, 
 the injured party who appeals to the criminal 
 court for a remedy gets another kind of redress. 
 The defendant adjudged guilty may be sentenced 
 for a term of years in prison or commanded to 
 pay a large sum of money as a fine. This fine, if 
 it is collected, goes either into the public treas- 
 ury or into the pocket of some of its officers, and 
 not one cent is ever paid to the injured party. 
 If the defendant is placed in prison and com- 
 pelled to toil at hard labor, all the proceeds of 
 his labor go to the state. What kind of redress is
 
 1 64 FALLACIES OF THE LAW. 
 
 this to the injured party ? What kind of repara- 
 tion for losses sustained ? "An eye for an eye, 
 and a tooth for a tooth" is no compensation to 
 the one who has lost eyes or teeth. There is no 
 process of law, physics or metaphysics by which 
 an eye or a tooth taken from the defendant may 
 refill the denuded gums or eyeless socket of the 
 injured party. The redress furnished by the 
 criminal statutes merely gratifies an animal pas- 
 sion for revenge. 
 
 Some will concede the inadequacy of our legal 
 means of redress and challenge the writer to out- 
 line a better one. "How can you get blood out 
 of a turnip?" is a familiar question asked by 
 those who despair of collecting a just claim from 
 an impecunious defendant. The real question is 
 not how to get blood out of a turnip, but how to 
 get money out of a "beat." When the order of 
 the court is willfully disobeyed the government 
 is to that extent overthrown. Every person who 
 refuses to obey the order of a court when the suit 
 is in chancery may be punished by imprisonment 
 until he is coerced into obedience. But any one 
 may disregard the same judge when his judgment 
 is in a suit at law. If such a judgment is col- 
 lected it must be by an execution levied upon 
 the debtor's property not exempt, and this prop-
 
 FALLACIES OF THE LAW. 165 
 
 erty must be sold at auction to the highest bidder 
 for cash. Immediately after the judgment is 
 entered the prevailing party is entitled to have 
 such an execution issued unless prevented by an 
 appeal or stay bond. If the debtor has property 
 subject to the writ it is seized and sacrificed at a 
 forced sale, where it seldom brings much more 
 than half its value, and the costs of advertising 
 and selling it consume a large share of what is 
 realized. Usually but little is left to the creditor. 
 Why would it not be better to stay execution on 
 all judgments a reasonable time, to be fixed and 
 graduated according to the size of the judgment 
 and the ability of the defendant to pay, during 
 which time he would have an opportunity to obey 
 the judgment of the court ? The judgment should 
 during this time operate as a lien upon all the 
 defendant's property, and he should be restrained 
 from selling or disposing of any property except 
 to pay the judgment. At the end of the period 
 thus allowed him, if the defendant has not paid 
 the judgment or sold all his property not exempt 
 by law, and applied the proceeds on the judgment 
 against him, the plaintiff should have a right to 
 have execution issued and all the defendant's 
 property sold except his tools, necessary house- 
 hold furniture and wearing apparel for himself
 
 1 66 FALLACIES OF THE LAW. 
 
 and family. If the property thus sold does not 
 bring sufficient to satisfy the judgment the re- 
 mainder might be collected in this way: If the 
 court is convinced after a proper hearing that 
 the judgment debtor is willfully disobeying and 
 making no effort to satisfy its judgment, the 
 debtor should be compelled to work at some 
 occupation which the creditor may procure for 
 him, and his wages above the necessary cost of 
 his personal maintenance should go toward dis- 
 charging the judgment. If he refuses to obey 
 the orders of the court in this respect, he should 
 be placed in the hands of the prison authorities 
 as an ordinary criminal and made to work under 
 them, and the net product of his labor should be 
 applied on the judgment. If on the contrary it 
 appears to the court on the hearing that the 
 debtor is trying in good faith to obey its order, 
 but is so circumstanced that he can not pay the 
 debt, he should not be molested nor deprived of 
 his liberty, and after the lapse of five years the 
 right to enforce judgment should cease. Dis- 
 charges in bankruptcy should be allowed only to 
 those who convince the court that the indebted- 
 ness against them was contracted in good faith, 
 and that the amount is so large that there is no 
 reasonable probability that they will ever be able
 
 FALLACIES OF THE LAW. 1 6? 
 
 to pay it. Under such circumstances the court 
 might fix the sum which it appears probable the 
 debtor could pay within the next five years, and 
 then discharge him from the excess. All dis- 
 charges might be set aside whenever it is made 
 to appear that the debtor is willfully violating 
 the judgments of the court. This method would 
 give the honest debtor a much better chance than 
 he now has to save his property from being sac- 
 rificed, and make it more difficult for the dishon- 
 est one to escape paying his just debts. 
 
 Where the plaintiff seeks compensation for 
 injuries that are criminal in their nature, no re- 
 dress that merely punishes the defendant is com- 
 plete. Mankind have not yet reached a plane 
 where they can be satisfied without gratifying 
 the passion for revenge, and crimes that horrify 
 the public such as treason, rape and murder 
 will continue to provoke a desire for swift and 
 severe retaliation by doing bodily harm to the 
 criminal. Legislatures must deal with human 
 nature as it is, and not follow even the dreams 
 of the loftiest minds when they do not accord 
 with the common sentiment of the community. 
 The law must have the sword behind it, and this 
 common sentiment is the power which wields the 
 sword. We should not, however, in glutting the
 
 1 68 FALLACIES OF THE LAW. 
 
 desire for vengeance, forget those who have suf- 
 fered the most from the crime. As far as possi- 
 ble they should be compensated for their losses. 
 Taking the life of a criminal may sometimes be 
 necessary to satisfy the public demand and to 
 deter others from committing a like offense, but 
 where this can be avoided the life of the wrong- 
 doer should be saved and he should be compelled 
 to use it for the purpose of compensating the 
 public for the expense of his trial and compen- 
 sating the victim or the victim's dependents for 
 their losses. To what extent the fear of severe 
 punishment deters the commission of crimes may 
 long be a controverted question. Many may 
 contend that it has no effect on those who are 
 disposed to commit the greatest crimes. It is 
 probable that its effect in this respect is greatly 
 overestimated on account of the unsound or reck- 
 less mental structure of those who commit such 
 offenses. It is probable that the legal taking of 
 human life by the sheriff does more injury than 
 benefit to the community. In that community 
 where public sentiment regards human life so 
 sacredly that it is never allowed to be taken ex- 
 cept in self-defense it may be much safer than it 
 is in that community where frequent hangings 
 occur. The reader may not agree with this, but
 
 FALLACIES OF THE LAW. 169 
 
 he will surely concede that a live man, when he 
 can be made to work and perform valuable ser- 
 vice, is ordinarily worth more than a dead one, 
 and it is a most unprofitable use to make of a 
 strong, healthy man to kill him at the public 
 expense, or even to confine him in idleness in a 
 dungeon. Where it is possible to utilize their 
 services criminals should be so employed as to 
 produce the largest amount in value consistent 
 with the public safety. Embezzlers, thieves, 
 holdup men, thugs, swindlers, and such crimi- 
 nals, when convicted, should be compelled by 
 labor to compensate the state and their victims 
 for the losses caused by their misconduct. This 
 should be done without corporal punishment if 
 possible, but the state should not hesitate to use 
 such punishment where it is necessary to make 
 criminals practice the precepts of justice. This 
 method may be far from perfect, but it certainly 
 would be an improvement on the present system, 
 which not only furnishes no reparation for losses 
 caused by the wrongdoers, but usually destroys 
 them or disables them from making any repa- 
 ration.
 
 CHAPTER XV. 
 
 FUNDAMENTAL ERRORS. 
 
 THERE are two errors which lie at the very 
 foundation of our system of government. One 
 is the doctrine of precedent; the other the gen- 
 eral belief that all men should be eligible to vote 
 and hold office without any proof of their fitness. 
 
 i. The doctrine of precedent. Some nations 
 worship the graves of their ancestors, and a 
 sentiment of reverence for the old abides in the 
 breasts of most of the inhabitants of the earth. 
 The infant is deeply impressed by the superiority 
 of the parent and naturally exalts his acts be- 
 yond their merit. Out of this has grown the 
 belief that our fathers were wiser than we are 
 and that what they have done should not be 
 undone ; that all their precepts should be rever- 
 enced and followed in the conduct of the organi- 
 zation which they brought into being. Where 
 they sat in positions of authority and made 
 rulings or declarations pointing the path which 
 in their opinion led to safety, their acts and con- 
 duct became precedents having the force of law;
 
 FALLACIES OF THE LAW. 1 71 
 
 and when they sat in judicial tribunals and de- 
 cided controversies that came before them their 
 decisions must stand as guides for subsequent 
 judges for all time. Thus have the records of 
 the past come to assume the utmost importance 
 in governing the present and shaping the destiny 
 of the future. This reverence for precedent is a 
 sort of superstition which a little critical exami- 
 nation will do much to clear away. Instead of 
 assuming that our fathers were wiser than we 
 are we ought to assume that, other things being 
 equal, we should be wiser than they ; for we have 
 the benefit of all their experience, and sources of 
 information which they did not have. Their 
 decisions may have been adapted to their envi- 
 ronments and have been wisely made, but in the 
 meantime the environment has changed, so that 
 what with them may have been timely and proper 
 has now become obsolete. We can never know 
 precisely the causes which operated upon their 
 minds, and without such knowledge we have no 
 criterion by which we can pass upon the wisdom 
 of their actions. Assuming them to have been 
 always pure in their purposes and diligent in 
 their investigation, still many of the elements that 
 entered into their decisions prevent them from 
 being infallible guides. In every other depart-
 
 1 72 FALLACIES OF THE LAW. 
 
 ment of our activities we recognize the possibility 
 of improvement and proceed with experiments to 
 find a better way. We laugh when we see the 
 Egyptian peasant plowing with the same kind of 
 crooked stick which was used by his ancestors at 
 the time the pyramids were built. Yet this is the 
 doctrine of precedent put into use in agriculture. 
 The experience of those who have preceded us, 
 when known, is useful for all the light that can 
 be derived therefrom, but when in the framing of 
 a statute or the making of a decision the question 
 arises as to what is justice, the opinion of no one 
 either dead or alive should possess authority. 
 The person clothed with the duty to act, and 
 having the power to decide, after enlightening 
 his mind with all the means of information at his 
 command, should do as his first ancestor is pre- 
 sumed to have done, that is, follow his own judg- 
 ment. By this method we free ourselves from 
 the shackles of superstition and take a position 
 that permits of progress. Had every one clothed 
 with official power nailed himself to the dry log 
 of ancient precedent no progress whatever would 
 have been made. All improvement is due to the 
 men who have been brave and honest enough to 
 defy precedent in their quest of the right. No 
 judge should stultify his conscience by following
 
 FALLACIES OF THE LAW. 173 
 
 any decision which he believes to be unjust and 
 contrary to the purpose of the law: not even his 
 own decision should be permitted to shackle his 
 mind when he believes it. to be wrong. In fol- 
 lowing his own true judgment the judicial officer 
 should take into consideration all light that may 
 emanate from reasons given in the decisions of 
 similar cases, but except for the plain require- 
 ments of the law there should be no authority to 
 override his conscience. For the purpose of nul- 
 lifying the effect of precedents the legislature 
 should by positive enactment destroy forever 
 their authority in judicial proceedings. 
 
 2. Qualification and election of officers. The 
 law does not require any mental qualification of 
 the occupant of public office, except in minor 
 positions, such as school teachers and certain 
 offices coming within civil -service laws in cities 
 and in the national government. A man who is 
 not educated in the laws of his country is legally 
 qualified to occupy the position of a judge. One 
 who is without legal learning is legally compe- 
 tent to occupy a seat in the state legislature or 
 the national congress. Even the chief magistrate 
 of the nation is not required by law to possess 
 any qualification except that of a natural-born 
 male citizen of the United States over the age of
 
 174 FALLACIES OF THE LAW. 
 
 thirty-five who has resided in the United States 
 for fourteen years. With the exceptions here 
 stated not only the rank and file of the official 
 army, but every officer in it, from the highest to 
 the lowest, may seek the place and occupy it 
 v without presenting any proof of the education, 
 skill or training necessary to fit him for the func- 
 tions he proposes to discharge. The voter is not 
 required to possess education, skill or training, 
 and he who may be without character or patriotic 
 sentiment is expected to select from the many 
 candidates who aspire to the various offices the 
 ones best fitted to fill them. The candidates 
 either select themselves or are selected through 
 the agency of political parties. These parties 
 are but a combination formed for the pecuniary 
 profit of those who manage them. The names of 
 the candidates selected are placed upon a ticket 
 on which there are other names of candidates for 
 the same office. For one of these the voter must 
 vote, if his ballot is to have any influence in the 
 selection. Ordinarily he has no knowledge what- 
 ever of the function of the office or the ability 
 required to discharge its duties. He usually has 
 no reliable information as to the character, intel- 
 ligence, skill or experience possessed by the 
 candidate.
 
 FALLACIES OF THE LAW. 175 
 
 Such a system is calculated to bring to the 
 front for political preferment the boldest, most 
 self-serving and least patriotic elements in the 
 community. Even the office of president of the 
 United States may be filled by men without ex- 
 tensive experience and training in discharging 
 important governmental trusts. It may be filled 
 by men with but slight or no knowledge of the 
 laws and constitution of the nation. It may be 
 filled by men who are not fitted for association 
 with persons of dignity and deliberate judgment, 
 and by men not suited to deal with the high offi- 
 cials connected with such an office. Mere noto- 
 riety won in military service, or that popular 
 idolatry inspired by success in a single military 
 exploit, may be sufficient to lift a man possessing 
 no mental qualifications therefor into the presi- 
 dential chair, and even on to the bench. Large 
 wealth, either inherited or acquired honorably or 
 dishonorably, may be sufficient to elevate its 
 possessor to the loftiest seat in the state or na- 
 tional government. Ill gotten wealth, combined 
 with that shrewdness and astute knowledge of 
 human nature and its weaknesses which are the 
 means of getting it, will continue to be a most 
 potent factor in providing officials while there 
 are no other legal qualifications than now exist
 
 I7 6 FALLACIES OF THE LAW. 
 
 and officials are selected in the method now pre- 
 vailing. 
 
 Perhaps it is not necessary to expatiate upon 
 the results of this system and its effect upon the 
 public service. The incompetency abounding in 
 almost every department of the government is 
 known to all. The entire service is crippled by 
 it. Every year this is growing worse as wealth 
 increases and the matters requiring governmen- 
 tal action become more complex. 
 
 Unless radical changes can be effected in this 
 machinery the prospects of substantial better- 
 ment are very vague. How can an electorate, 
 composed of voters jwho are themselves incompe- 
 tent to judge, be expected to select competent 
 officials under a system where they are really 
 given no choice ? How can officials who have 
 procured themselves to be selected by corruption 
 and promises of favor be expected after they are 
 elected to select or appoint other officials who 
 will not partake of the nature of those who have 
 selected them ? We should not be surprised to 
 find every department of the government satura- 
 ted with corruption, but wonder that any faithful 
 officials are thus selected. Considering how the 
 judiciary is provided, it seems almost miraculous 
 that so many good men have been chosen.
 
 FALLACIES OF THE LAW. 177 
 
 To propose a system that will completely 
 remedy the evils of the present is certainly a dif- 
 ficult task. The problem is how to allow all the 
 members of the community the right of voting 
 and at the same time enable them to select com- 
 petent and faithful officials. No one can intel- 
 ligently select an officer from a list containing 
 names of persons unknown to him. Therefore 
 there must be devised a method by which those 
 who vote directly for candidates may become 
 acquainted with the functions of the offices to be 
 filled and the capacity of the various candidates 
 to discharge these functions. 
 
 As a possible method of accomplishing this 
 purpose I suggest that the voters be divided into 
 neighborhood groups, each group composed of a 
 certain number, say one hundred. This would 
 enable the members of each group to become 
 acquainted with each other and to act together in 
 selecting representatives from their number to 
 act for them. These groups of one hundred 
 qualified electors might each elect representatives 
 empowered to act for them in electing city and 
 county officials, and representatives to act in the 
 selection of state and national officials. Where 
 the number of representatives became so large 
 that it would be impracticable for them to come
 
 178 FALLACIES OF THE LAW. 
 
 together and act in a body, as would probably be 
 the case in the selection of officials in large cities 
 and in the state and nation, these representatives 
 could be divided into groups of thousands or 
 some multiple of the whole number, and these 
 last-named groups could select representatives 
 from their number and empower them to act in 
 electing the officials. In this way it would be 
 possible for all the electors in the groups of one 
 hundred to know each other and the representa- 
 tives that they selected, and they would have the 
 means of ascertaining the fitness of their repre- 
 sentatives and could hold them responsible for 
 the faithful discharge of their duties. It would 
 also be possible for the representatives voting 
 directly for candidates to ascertain the qualifica- 
 tions of each candidate; also the qualifications 
 of representatives that they selected. Under 
 this system no voter would need to vote for a 
 candidate without knowing his qualifications. 
 
 This is but the application of the principle of 
 agency to the management of the government. 
 It is the principle employed in every large 
 undertaking, and the one that must be employed 
 where the number of people who act together 
 is so great and covers so extensive an area that 
 it is impracticable for each member to obtain
 
 FALLACIES OF THE LAW. 179 
 
 the information necessary for intelligent action. 
 Under this system, however, it might happen 
 that unfit men would occasionally be selected, 
 and as a double precaution the law should fix 
 the qualifications of candidates and provide a 
 method by which they must prove their qualifica- 
 jtions before they become eligible for the offices 
 to which they aspire. It is not necessary to enter 
 into details as to the manner of furnishing this 
 proof or the persons to whom it should be fur- 
 nished. We need only to apply to positions of 
 greater importance a principle already in use in 
 selecting minor officials in cities and in the de- 
 partments of the national government. Perhaps 
 in some positions a good character, ordinary in- 
 telligence and experience in similar matters are 
 all that would need be required; but in positions 
 of great responsibility, needing much skill and 
 learning, the candidate should prove his qualifi- 
 cations, not only by examination but by a term 
 of experience wherein he has demonstrated to the 
 public, in positions of perhaps less importance, 
 that he possesses the high character and capacity 
 required for the trust imposed. 
 
 It will be observed that this system relieves 
 the community from the enormous expense now 
 required to conduct the general elections, and it
 
 l8o FALLACIES OF THE LAW. 
 
 retires from power that army of professional poli- 
 ticians who depend upon the public treasury for 
 their forage. It permits no one to urge a claim 
 to an office because he has served some party, 
 and compels all to rely solely upon their fitness 
 as a reason for their selection. But it might be 
 well to adopt still another precaution and make 
 personal solicitation a cause of disqualification, 
 and make it a criminal offense for any repre- 
 sentative to vote for a candidate related to him 
 nearer than the fourth degree, or to vote for one 
 in whose election he has a financial interest. 
 
 It may be objected that this system deprives 
 the voter of all opportunity to vote directly for 
 the officials. If it is desired to continue the 
 practice of voting directly for officers, the rep- 
 resentatives, instead of electing officials, might 
 nominate a certain number of candidates for each 
 office, and allow the qualified voters to choose 
 their officials from the list of nominees. This of 
 course would entail upon the public the expense 
 of conducting the elections and the burden of 
 procuring the specific information necessary to 
 an intelligent choice, and while it might insure 
 competent officials, it would not eliminate the 
 expense, turmoil, scandal, vituperation and gen- 
 eral corruption and intimidation now prevalent.
 
 CHAPTER XVI. 
 
 UNJUST DISTRIBUTION OF POLITICAL POWER. 
 
 THE RIGHT of one to rule another must ema- 
 nate either from divine sources or from some 
 arrangement agreed to between the ruler and the 
 ruled. The divine idea was rejected by the foun- 
 ders of this government. They declared that all 
 governments derive their just powers from the 
 consent of the governed. 
 
 As the necessity for some government exists 
 in a social community, it is assumed that those 
 who become members consent to the authority of 
 the government in existence when they become 
 such. This presumption, however, must be based 
 upon justice ; for authority which is not believed 
 to be just can not long exist. A government 
 which assumes to be founded upon the consent of 
 the governed is manifestly unjust unless it pro- 
 vides a way by which the consent of the gov- 
 erned may be ascertained. It is also unjust if 
 the method thus provided does not confer upon 
 each member of the government an equal right 
 to express his consent or dissent. Any discrimi-
 
 1 82 FALLACIES OF THE LAW. 
 
 nation which gives more legal weight to the voice 
 of one than to that of another is likewise unjust. 
 Circumstances sometimes are such that it be 
 comes necessary for the common good to deprive 
 some persons of equal political rights. Thus 
 lunatics and infants, because deficient in mental 
 capacity, are allowed no political rights, and per- 
 haps some who can not be classed with either 
 are yet so lacking in mentality that they should 
 be considered in a condition of tutelage and be 
 denied a voice in the government. But all per- 
 sons recognized by law as mentally capable of 
 binding themselves by contract and of managing 
 their own affairs should be accorded equal politi- 
 cal rights, and these rights should not be taken 
 from them except as punishment for such crimes 
 as cause a forfeiture of liberty. Measured by 
 this standard, there are several methods by which 
 the political power of the nation is unjustly dis- 
 tributed. The general and wholesale denial of 
 political rights to women has been referred to 
 already, and needs no discussion. The laws in 
 some of the Southern States requiring educa- 
 tional qualifications, and having the effect of dis- 
 franchising many of the black race, have a much 
 better foundation. The difficulty in applying an 
 educational test and its liability to abuse make it
 
 FALLACIES OF THE LAW. 183 
 
 a dangerous experiment. Where attempted, it 
 should certainly be reasonable and should be 
 made to operate upon all of the unfit without 
 regard to race or color. 
 
 Passing the disfranchisement of women and 
 the ignorant, there are in operation organic laws 
 which unjustly distribute political power among 
 those who are legally qualified as voters. 
 
 i. The Senate of the United States. No fed- 
 eral statute can be enacted, no appropriation of 
 money be made, no declaration of war, no treaty 
 of peace or other treaty can be made, and no im- 
 portant federal office filled, without the approval 
 of the Senate of the United States. Obviously 
 the Senate possesses a very large share of the 
 political power of the nation. How is it selected, 
 and from what sources does it derive its power ? 
 It is supposed to be selected by the states, and 
 each state without regard to its population is 
 entitled to select two members. The little states 
 of Nevada, Delaware and Rhode Island are given 
 in selecting it as much political power as the 
 great states of New York, Pennsylvania and Illi- 
 nois. States but recently organized in the un- 
 settled West are thereby given as much political 
 power as is possessed by the densely populated 
 states of the Union. It is not true that the Sen-
 
 184 FALLACIES OF THE LAW. 
 
 ate represents the states. The presumption that 
 it does is a mere fiction of law. A state is not 
 a being which has an actual existence. It is a 
 political corporation, and like any other corpora- 
 tion is merely a name under which certain people 
 exercise certain legal rights. The Senator from 
 Delaware does not in fact represent the state. 
 He should represent the qualified voters of the 
 state. They are the sources of his political 
 power. Now by the operation of this scheme 
 one voter in the state of Nevada, with its popula- 
 tion of about 42,000, possesses more than one 
 hundred and seventy times as much political 
 power in the United States Senate as a voter in 
 the state of New York, with its population of 
 about 7,200,000. And according to the United 
 States census of 1900, twenty- three states with 
 an aggregate population of less than 13,000,000 
 furnished a majority of the Senate. Thus the 
 representatives of less than one-fifth of the popu- 
 lation of the United States control that body. 
 How can any just government long tolerate so 
 unequal a distribution of political power ? There 
 are five states whose population according to the 
 census of 1900 was less than 100,000 each and 
 two whose population was more than 6,000,000. 
 Many of these small states are in the unsettled
 
 FALLACIES OF THE LAW. 185 
 
 West, and some of them will increase relatively 
 in population. The inhabitants of Nevada, ac- 
 cording to the United States census, diminished 
 from 1890 to 1900, and some of the other states 
 made but slight increase. If the arid lands of 
 Nevada or any of the barren hills and mountains 
 of New England are in the future abandoned for 
 more fertile regions, there will always remain 
 enough politicians in those states to keep up a 
 state government and elect two members of the 
 United States Senate. 
 
 The present unequal distribution of political 
 power in the Senate is certainly shocking to con- 
 template, but it is scarcely a symptom of what 
 the future is likely to bring forth. When the 
 fertile lands of the Ohio and Mississippi valleys 
 have acquired a population commensurate with 
 their capacity to support the wants of civilized 
 life, and the barren hills, mountain ranges and 
 arid deserts of the East and West have been ex- 
 hausted of their mineral resources and denuded 
 of their means to sustain a population, there may 
 then be seen five hundred millions of people 
 blocked in every effort at national legislation by 
 a combination of small states controlled by spe- 
 cial interests that will use the United States Sen- 
 ate as their principal means of obstruction.
 
 1 86 FALLACIES OF THE LAW. 
 
 The Senate came into being on account of the 
 reverence our English fathers had for the Eng- 
 lish system. As they had abolished all legal 
 rank and title, the House of Lords could not be 
 instituted, and so the Senate was provided as a 
 substitute. The House of Lords accords well 
 with the divine right of kings and with the acqui- 
 sition of political power by inheritance: it is 
 consistent with and helps to sustain the British 
 throne. But the Senate is clearly inconsistent 
 with the idea of a government deriving its just 
 powers from the consent of the governed. 
 
 There is a growing sentiment in favor of a 
 change in the Federal Constitution so as to elect 
 the Senate of the United States by the direct 
 vote of the people. This can afford but slight 
 relief. Nothing short of an amendment which 
 will distribute the representation in the Senate 
 among the people of the various states in pro- 
 portion to their population will remedy this 
 serious defect. The Constitution of the United 
 States provides "that no state, without its con- 
 sent, shall be deprived of its equal suffrage in 
 the Senate." This provision was intended by 
 the citizens of the United States to be an express 
 covenant. The hands that placed it there, and 
 those they represented, are no longer subjects of
 
 FALLACIES OF THE LAW. 187 
 
 mortal governments, but the fetters which they 
 thus intended to place upon posterity remain. 
 If the question ever comes before the United 
 States Supreme Court, that body will probably 
 declare that this provision has the effect of pre- 
 venting any legal alteration in the Constitution 
 so as to deprive the states of equal representa- 
 tion in the Senate, and any new constitutional 
 amendment which the people may adopt will be 
 held invalid if it plainly has that effect. 
 
 Another method of removing this unjust dis- 
 tribution of political power would be to abolish 
 the Senate by constitutional amendment. To do 
 this would require ratification by three-fourths 
 of the states, acting either through their legis- 
 latures or by constitutional conventions. This 
 would be easier than getting the unanimous con- 
 sent of the small states; yet it would be very 
 difficult, because the consent of more than half 
 the small states would be necessary. Such an 
 amendment might fail after its adoption. The 
 court might decide it to be a violation of the said 
 provision, on the ground that it was an attempt 
 to do indirectly what could not be done directly. 
 This, however, is hardly probable, because the 
 power to amend the Constitution necessarily 
 carries with it the power to change it in every
 
 1 88 FALLACIES OF THE LAW. 
 
 respect except in the one expressly forbidden. 
 If the Senate were abolished no state could prop- 
 erly claim that its suffrage therein was not equal 
 to other states. This appears the easiest way to 
 rid ourselves of this unjust feature in our national 
 government. Whether it should be taken is a 
 question upon which volumes might be written. 
 The value of the Senate as a legislative body is 
 a subject about which men will differ, but no ons 
 will question the truth of the statement that it is 
 based upon an unjust distribution of political 
 power. No amount of efficient service on the 
 part of the members of that body can make this 
 feature consistent with the fundamental principles 
 of a just government. The power thus unjustlj r 
 concentrated will always be liable to abuses of 
 the most dangerous character, and the sooner the 
 defect is remedied the safer will be the Federal 
 Government. 
 
 2. The method provided for electing the Pres- 
 ident and Vice President of the United States is 
 subject to an objection of a similar nature. They 
 are selected by electors elected in the various 
 states. Each state is allowed two electors with- 
 out regard to its population, and to that extent 
 the voters of small states are given greater po- 
 litical power in the choice of these officers than
 
 FALLACIES OF THE LAW. 189 
 
 are those of larger states. The effect of this 
 method is felt in many parts of the govern- 
 mental machinery, because of the extraordinary 
 power bestowed upon the President. He has a 
 veto power by which he may prevent any act 
 passed by Congress from becoming a law, unless 
 two-thirds of the members of both houses vote to 
 pass it against his veto. Thus does he possess 
 more power to prevent legislation than sixty-five 
 members of the House and fifteen members of 
 the Senate combined. Indirectly he possesses 
 much greater power than this. He has the power 
 to nominate all important federal officers, includ- 
 ing members of the courts, ambassadors, consuls, 
 cabinet ministers, and many thousand other offi- 
 cers little and big. Thus he is able to reward 
 his supporters and punish his opponents, and 
 exercise an immense influence over members of 
 Congress, which may be used either as a lubri- 
 cator or a brake in legislative matters. He can 
 usually promote or prevent the passage of any 
 measures as he desires. Any defect, therefore, 
 in his title is very important, and the fact that he 
 is elected by an unjust distribution of political 
 power deserves the highest consideration. 
 
 3. The federal judiciary, which compose the 
 entire judicial branch of the national govern-
 
 190 FALLACIES OF THE LAW. 
 
 ment, derive their powers from the President and 
 the Senate, and their titles are therefore affected 
 by this unjust distribution. Thus we see how 
 the virus of injustice permeates the structure of 
 our federal system to its very marrow.
 
 CHAPTER XVII. 
 SURVIVALS OF MONARCHY. 
 
 i. LIFE terms for officials. A people can not 
 govern themselves through representatives unless 
 they possess the right to choose the officials in- 
 trusted with political power and to change them 
 at frequent intervals. The federal judges are 
 appointed by the President of the United States 
 for life terms. Their fitness is not considered by 
 any direct representative of the voters. They 
 are as far removed from the will of the qualified 
 voters as the members of the House of Lords or 
 the king of England. The people are thus pre- 
 vented from using their political power to procure 
 for their government the best persons attainable. 
 If an unfit person secures an appointment, or 
 becomes unfit after he is appointed, they must 
 wait for the hand of death to remove him before 
 a person fit to discharge the duties of the high 
 place can be appointed. If this anomaly was 
 not intended to stifle the popular will, those 
 who designed it must have been blind to its nat- 
 ural tendency. It is difficult to believe that the
 
 192 FALLACIES OF THE LAW. 
 
 originators of this judicial system really had 
 confidence in the ability of the people to govern 
 themselves. No reference will be made to the 
 character of those who have been appointed to 
 these life offices. It would serve no useful pur- 
 pose to cloud this argument with such personali- 
 ties. Fortunately the highest court in the system 
 has usually had the confidence of the public, and 
 its decisions have been generally acquiesced in 
 as correct expositions of the law. It requires no 
 prophetic eye, however, to foresee the disaster 
 likely to come if the people lose confidence in the 
 Supreme Court of the United States. The unfit- 
 ness of the life term of office to a popular govern- 
 ment is apparent, and the great disadvantages 
 and dangers that flow from it can easily be com- 
 prehended. Each part of our political structure 
 ought to be subject to the popular will in the 
 selection of officials, and this life-term branch is 
 like a paralyzed limb on the human body : it does 
 not respond to the will of the indwelling spirit 
 of the body politic, and thus is liable to prove a 
 hinderance to its healthy progress. 
 
 2. One-man power. The central idea of mon- 
 archy is government by a single will. The cen- 
 tral idea of a republic is self-government through 
 representatives. These representatives should
 
 FALLACIES OF THE LAW. 193 
 
 be special agents intrusted for short periods with 
 such duties as they are capable of discharging. 
 They should act as servants and not as masters 
 of the people. If an agent of a republic is in- 
 trusted with great general powers, and he exer- 
 cises these by controlling other officials whom he 
 may appoint or discharge at pleasure, he pos- 
 sesses the powers of a monarch, and there is but 
 a thin partition between a republic thus ruled and 
 a monarchy. The office of the President of the 
 United States, on account of the extensive power 
 placed in the hands of its occupant, is essentially 
 monarchical, and the person who holds it is for 
 the time clothed with .more authority than most 
 monarchs possess. Extend his term for life, and 
 allow him to select his successor, and he becomes 
 a monarch in every respect. He is now an elec- 
 tive monarch with no constitutional limit upon 
 the length of time he may hold the position, pro- 
 vided he can secure his re-election when his term 
 expires. An office with such prerogatives is in- 
 consistent with the general purpose of a republic. 
 It invests the occupant with more duties than 
 any individual can properly discharge, and in- 
 trusts in him more power than any one person 
 should possess or can wisely exercise. 
 
 No reflection is intended upon the character
 
 194 FALLACIES OF THE LAW. 
 
 or capacity of any public official. Assuming that 
 all occupants of this office have been as fit as any 
 who could be obtained in their time, they have 
 nevertheless been incapable of discharging more 
 than a small fraction of the many duties which 
 have been imposed upon them by the law. But 
 few of them have obtained even a general knowl- 
 edge of the manifold functions which are placed 
 under their control and made subject to their ar- 
 bitrary wills. In most instances where they have 
 been called upon to act they have been compelled 
 to do so without knowledge and to follow the ad- 
 vice of others. If the president is a representa- 
 tive of the people he should represent all sections 
 of the country. It is impossible for him to do 
 this. Had he as many heads as hydra and never 
 needed to sleep, he still could not obtain the 
 information necessary to such a task. 
 
 In all the minor departments of government 
 the payrolls are stuffed with an unnecessary num- 
 ber of employes. Why should the occupants of 
 the highest positions have more burdens placed 
 upon them than they are capable of bearing. 
 The officials thus overburdened, as in the case 
 of the President, become a sort of head pushers 
 who execute vast numbers of documents without 
 knowing their contents and have but little or no
 
 FALLACIES OF THE LAW. 195 
 
 knowledge of the details of the various depart- 
 ments over which they maintain control. 
 
 Another great objection to the one-man power 
 is that it provokes the spirit of idolatry. This is 
 a survival of the notion of the divinity of kings. 
 An appeal is thus made to the imagination of the 
 ignorant, who look upon this executive head as 
 a superior being. Their bosoms swell with an 
 emotion that takes reason captive when his name 
 is mentioned. His activities outside of his official 
 sphere, even where he acts without knowledge 
 or experience, are given extraordinary weight, 
 because of his solitary position as head of a great 
 department. This adulation usually unfits the 
 officer for exercising a free and deliberate judg- 
 ment. He is, as it were, continually on dress 
 parade as an abnormal person, and thus becomes 
 painfully self-conscious. It also debases the 
 public. Many of its members are all their lives 
 governed by an ambition to reach this exalted 
 station. To attain it they use as stepping stones 
 the other offices that they acquire, and often stoop 
 to conduct which only this great goal would in- 
 duce. Thus the lust for abnormal power inflames 
 and often corrupts great numbers of people, and 
 those most unfit to possess it are often the most 
 eager to obtain it. Would it not be well for the
 
 196 FALLACIES OF THE LAW. 
 
 nation to remove this extraordinary cause of 
 adulation and temptation by substituting in the 
 place of the president a managing board selected 
 by representatives of the people from various 
 parts of the national domains, giving each mem- 
 ber equal power and authority, and allowing this 
 board to determine all questions of general policy 
 by a majority vote ? Why not apply here the 
 same principle that is in use in the constitution 
 of the Supreme Court of the United States ? In 
 this great court the most important official power 
 is divided among nine men, of whom a majority 
 is necessary to render a decision. If this court 
 were composed of but one man, his head would 
 certainly wear a halo, and he would receive the 
 same adulation now accorded to the President. 
 The fact that there are nine prevents any one 
 from being idolized. The veto power should be 
 taken from the executive departments in both 
 state and nation, and the power of appointing 
 federal judges and other important general offi- 
 cers be reposed in the direct representatives of 
 the people. The reasons here urged against the 
 one-man power in the presidential office apply 
 with some force to the office of governor in states 
 and mayor in cities. When there is work enough 
 for several men in discharging any duty of great
 
 FALLACIES OF THE LAW. 197 
 
 responsibility, the placing of one in authority 
 over all the others smacks of monarchy. Repub- 
 lican institutions should be ruled by the will of 
 a majority of co-equals, not by the arbitrary 
 powers of one man. 
 
 The unjust features in the distribution of po- 
 litical power, as above pointed out, should be 
 eliminated, and all officials so situated that they 
 must in the administration of the government 
 respond to the will of the majority of the people 
 as expressed accurately by their faithful repre- 
 sentatives. Nothing of a revolutionary character 
 is advocated herein, unless it is revolutionary to 
 insist on the substitution of the true for the false, 
 the real for the fictitious. We have had enough 
 of sham law, fictitious evidence and dummy trials 
 and bogus judgments, and have seen enough of 
 the counterfeit in governmental affairs. Are we 
 not tired of the expense, sick of the disappoint- 
 ments, and disgusted with the false pretenses ? 
 We have worn gewgaws and paste gems and paid 
 high prices for them long enough : we yearn for 
 the genuine, and to that end we crave a change 
 in the direction of honesty and truth. We insist 
 that our laws shall be real laws, not mere legis- 
 lative fulminations that are likely to be held 
 unconstitutional, nor judicial emanations which
 
 198 FALLACIES OF THE LAW. 
 
 any court may hold unsound. That our judges 
 shall be real judges having actual authority, and 
 not an apparent authority likely to become spu- 
 rious in a higher court ; that the capacity of those 
 who sit in judgment shall be a real capacity that 
 fits them for the discharge of their duties, not 
 mere legal capacity which may be a cover for 
 ignorance, prejudice and stupidity; that the trial 
 shall be a real trial, not a mistrial or a mere 
 wrangle over jurisdiction or written pleadings; 
 that the advocates should be real advocates of 
 what they believe to be real causes, not con- 
 scienceless hirelings who have taken fees to ad- 
 vocate spurious claims or defenses; that the 
 evidence shall be real evidence, estimated for its 
 really convincing force, not a mass of fabrica- 
 tions put forward for the fictitious force which 
 some judge or legislative body in ancient times 
 may have decided it should have; that all the 
 proceedings from beginning to end shall be con- 
 centrated to the one aim of rendering and en- 
 forcing a just judgment according to the law. 
 If a review is had in a higher court, it should be a 
 real review of the case on its merits, not an ex- 
 pensive debate over questions which do not affect 
 the substance of the controversy. And when a 
 judgment is finally rendered, that it shall be a
 
 FALLACIES OF THE LAW. 199 
 
 real judgment, not a mere impotent order of a 
 court which can easily be nullified. The time 
 has come when intelligence should sit in the 
 temple of justice. We want fewer laws, fewer 
 ceremonies, less parade and pretense, less delay 
 and expense, simpler judicial machinery, fewer 
 governmental functions and more justice.
 
 CHAPTER XVIII. 
 CONCLUSION. 
 
 IN the foregoing pages we have depicted a few 
 of the many glaring faults in the laws. Enough 
 has been written to show an urgent need for 
 reform, not only in details but in fundamental 
 doctrine. Pruning and grafting the old tree may 
 help much, but no remedy will be complete if it 
 does not abandon forever the fundamental errors 
 in the system and organize a new one that is en- 
 tirely logical and consistent throughout, substi- 
 tuting simplicity for complexity, substance for 
 forms, and justice for ancient precedents. 
 
 Those who have read the other volumes in 
 the series which concludes with this may think 
 that the author looks upon the institutions of his 
 country as hopelessly defective. This is not cor- 
 rect. On the contrary, it is his confidence in the 
 ability and disposition of his countrymen to cure 
 these defects that has led him to undertake this 
 task. 
 
 We are indeed living in a most auspicious time. 
 So swift has been the progress of the world dur-
 
 FALLACIES OF THE LAW. 2OI 
 
 ing the last half century in the direction of im- 
 provement that when we contrast what has been 
 accomplished in that period with the slow prog- 
 ress made in the many centuries that preceded, 
 it seems as if humanity in this new world has 
 been experiencing a new birth or is awakening 
 from a lethargy of many centuries. We feel 
 everywhere the refreshing breath of a new day. 
 The mighty spirit of Progress has appeared in 
 our sky, and with her wand has touched science, 
 art, literature, even religion. Why should not 
 jurisprudence feel her benign influence? 
 
 It seems impossible that a nation capable of 
 marvelous skill in devising other means for 
 adapting itself to better conditions is powerless 
 to strip its jurisprudence of the fungi of the cen- 
 turies and convert it into a nobler and better 
 system. Is it too much to hope that our great 
 people will prove capable in this respect, and that 
 the glorious morning which now paints its rosy 
 promises upon our sky will advance to a perfect 
 day whose brightness will not decline ? May we 
 not hope that a greater people than the earth 
 has ever yet contained shall bask in its beams ? 
 
 Great nations have preceded us: from cities 
 comparatively small have arisen mighty men 
 whose prowess in the arts of war and skill in the
 
 202 FALLACIES OF THE LAW. 
 
 inventions of peace have given their names to 
 immortality and made their works priceless lega- 
 cies to mankind. These were but examples of 
 what men may be and do when held in slavery 
 and oppression. If the mighty people of the 
 future are cradled in liberty and guarded by the 
 hand of justice; if their limbs are free to perform 
 all tasks for which the human body is capable, 
 and their minds unfettered by forms of supersti- 
 tion and governmental restraint ; if like the great 
 spirit that animates the universe they in sympa- 
 thy will embrace the whole and their intellects 
 shall penetrate all departments of human thought, 
 then they will demonstrate what the human soul 
 can do with all its barriers torn away, when it is 
 left free to choose the sphere of action most har- 
 monious with its desires. 
 
 In the fullness of that glorious day justice 
 shall touch the thrones of monarchs and they 
 will crumble ; the truncheons which in their puny 
 hands have terrified the world will be but curios 
 in the museums. The castles and battlements 
 of robber barons shall serve but to feed the moss 
 and ivy. No longer mighty navies shall plow 
 the seas; no longer frowning forts shall mar the 
 shores; the tramp of armed warriors shall be 
 heard no more. The gallows and gibbet shall
 
 FALLACIES OF THE LAW. 203 
 
 bear no human fruit. All forms of governmental 
 murder shall be obsolete. Much of what the 
 foolish and superstitious past hailed as magnifi- 
 cent shall fall and perish utterly. But man shall 
 ascend. From his place in the dust, under the 
 oppressor's heel, he shall arise; his unshackled 
 feet shall stand firmly upon the solid earth. His 
 unfettered mind shall struggle to touch the most 
 distant star. His free soul shall be attuned to 
 that divine harmony of which we occasionally 
 hear a note and call it justice. 
 
 Those of the future shall be proud; not of 
 unjust privileges created by law, but proud in the 
 possession of a liberty to do whatever the just 
 may desire. They shall be rich ; not in the pos- 
 session of vast quantities of wealth unjustly taken 
 from their countrymen, but rich in those rare 
 qualities of mind and soul which any may possess 
 to the fullest and still deprive no one else of his 
 possessions. And they shall be brave; not in 
 the pursuit of spoliation and murder, but in de- 
 fending truth, justice and the just rights of their 
 fellows as well as their own. They shall be wise, 
 and in their wisdom choose the best, and know 
 that the best does not include an unnecessary 
 quantity of any material thing. In those days 
 there will be lacking many of the displays which
 
 204 FALLACIES OF THE LAW. 
 
 excessive wealth now permits its pampered pos- 
 sessors to flaunt in the faces of the poor. The 
 parade upon the boulevards may be less splen- 
 did, the mansions occupied by childless million- 
 aires may be less magnificent, but the people 
 shall all have comfortable homes. They shall all 
 have proper clothing adapted to the varying sea- 
 sons of the year. They shall all have nourishing 
 food sufficient to supply their wants in health, 
 and ample time to improve their minds with all 
 the learning that the age affords. There will be 
 none to waste the products of others' labor in 
 lazy dalliance or luxurious ease, but all shall be 
 supplied with the necessities of a happy life. 
 
 There will be laws in that day, but they will 
 be laws protecting liberty and enforcing justice, 
 and they need be but few. There will be courts 
 in which judges shall sit, but not to administer 
 laws they do not understand. To them the few 
 statutes shall be as the alphabet, and familiar 
 as the faces of life-long friends. These judges 
 shall be experts in the power of analysis, and be 
 capable of separating the real from the seeming, 
 the true from the false. There will be lawsuits ; 
 not controversies where rascals shall strive to 
 overreach each other through the agency of law, 
 but controversies where honest people have failed
 
 FALLACIES OF THE LAW. 205 
 
 to agree and are represented by noble advocates 
 who seek to aid the judges in deciding the con- 
 troversies in accordance with truth and justice. 
 And there will be judgments rendered; not the 
 products of fraud and corruption or senseless 
 technicalities, but decisions on the real merits of 
 the controversy, in which superior wisdom and 
 long training have measured out in exactness the 
 amount necessary to repair the loss which has 
 been sustained. Reparation and not punishment, 
 justice and not revenge, will then be the objects 
 of the law. The nations of the earth will then 
 be united in the common bonds of mutual sym- 
 pathy and rejoice together in protecting the just 
 rights of each. Like the mighty orbs that have 
 for millions of years moved in majesty in their 
 courses, propelled by that attraction which each 
 has for the other, so shall the many races of 
 mankind move in their respective spheres, expe- 
 riencing no serious friction or collisions, but with 
 that precise harmony by which the members of a 
 great orchestra are able to perform a divine sym- 
 phony. 
 
 To us it may not be given to see that glorious 
 day. Our eyes may not witness its matchless 
 perfection. And yet, if justice is the prime attri- 
 bute of the Divine Mind, if it is the all-pervading
 
 206 FALLACIES OF THE LAW. 
 
 and all-conquering spirit of excellence before 
 whom we devoutly worship and find the highest 
 joy in loving service, may we not fairly hope that 
 when that final harvest day has come, and the 
 seed which has been planted with protracted care 
 and watered with many tears has reached its full 
 fruition, we too may be found among the reapers 
 who reap as they have sown ?
 
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 HENRY S. WILCOX, 
 
 of the Chicago Bar. 
 
 Foibles of the Bench. 
 
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 Foibles of the Bar. 
 
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 A unique and highly entertaining volume, depicting in lucid 
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