THE Emporium of Crawley was not quite a trading-place as the Greek root of the word would indicate, unless transactions in which the unwary bartered his gain for experience, and the great unscrubbed of the Southwest pitted their wage against the riot of dissipation, could be held to partake of the nature of commerce. It was a fad with Crawley to assert that his Emporium was a clearinghouse,—a rather grim jest, heavy with truth. Indeed, all the currency of this primitive land seemed to pass, sooner or later, through the mammoth establishment of First Class Crawley, and in season and out of season as the dollar went through, a portion paused and remained in the fingers of the proprietor. And for this, also,—as the common-law pleader would put it,—truth clung to the pet declaration of Crawley.
When the population gathered night after night under the roof of his Emporium, their troubles came also; and when the smoke grew thick and the tanglefoot whiskey began to assert itself, there were other things to clear up beside matters of currency. Matters of consequence and matters of no consequence were cleared by the same rapid, drastic measures. Bad men here decided who was the worst or the best, as they were pleased with the term. The henchmen of rival cattle kings submitted the vexatious question of a brand on a stray heifer to this court of instant resort and quick decision, and other concerns of the citizen, affecting perhaps his truth, or honor, or ability for a vice, were determined suddenly and for all time without the wrangling of counsel or the tedium of courts.
If a Mexican was so short sighted as to slip his knife into a tenderfoot, some one shot the Mexican, and the crowd “lickered up.” If the faro dealer killed his man, it was usually because the man needed killing, and certainly the faro dealer was the best judge of this. On the contrary, if one shot the dealer, this was considered a public calamity, demanding an explanation, since the dealer was a quasi public functionary, and the convenience of the citizen required that the game should continue. One's life was perhaps the cheapest thing below the Central Pacific Railroad, and it was entirely the duty of the individual to see that it was maintained. If one was unsteady on the trigger, or caught napping on the draw, one was held to have died by virtue of contributory negligence.
To be sure there was law, and machinery for its execution; but the machinery was liberal, and had ideas of its own, and the law adhered with supreme unconcern to its maxim—De minimis non curat lex.
First Class Crawley had been splendidly trained for the duties of his position. If Fortune had been moving of design, she could not have schooled him better for such a life. Some thirty years before, he had been a sutler with the Army of the Potomac—not the sutler of romance, but the sutler of reality; following the army bravely, but at such a distance to the rear as to be at all times extremely safe, and exacting for his valuable public service every gain that human ingenuity could discover. It was no wrong in the mind of Crawley to cheat the common soldier out of his eyes; belike the soldier would be shot on the morrow, and then all opportunity to cheat him would cease, and if prior opportunity had not been seized and enjoyed, Crawley would regret.
When the “bitterness of death” had passed, Crawley became a justice of the peace in Ohio. Here the field for his talent was broader, and Crawley arose and spread like the bay tree of Biblical record. Crawley held it as a basic principle that the machinery of human justice could not be maintained without ample sinews of war. It was best, to be sure, if these sinews could be wrested from the wrong-doer, but, failing that, the innocent must contribute. Every litigant was presumed to proceed at the peril of costs. The matter of costs was one vital to Crawley, and loomed constantly. The right or justice of a cause was never for a moment permitted to obscure it. If the plaintiff was impecunious, then the decision must be against the defendant, else the costs could not be had, and vice versa as it had pleased Providence to place substance.
This was a high conception of human justice; since it passed by the trivial controversy of the litigants, and placed the burden of legal procedure upon the one best able to support It. First Class Crawley maintained further that it was the part of wisdom in a government promptly to release the criminal who “shelled out,” since the revenues of the State arose largely from the fines imposed upon the evildoer, and it was certainly quite useless to retain the criminal at public expense after having squeezed him thoroughly, when he could be returned to society and squeezed again later on.
Crawley might have been the father of a school, had he not found the school in Ohio established to his uses. Consequently his fame was local, and his methods being of ancient origin in this Commonwealth, provoked no comment, and indeed he might have passed on, with the usual career of such ambitious spirits, to a seat in the legislature, had he not unwittingly crossed into a neighboring State in order to attend a reunion of the Grand Army of the Republic. Here one, smarting from a hurt, pounced down upon him with a warrant for a felony, and that same night the visiting justice was a guest of the State. But First Class Crawley was no man of feeble resources, and two days later he gave a straw bond and vanished like a newspaper war cloud.
In the Southwest, Crawley was a person of importance—a court of last resort on all matters, barring none. If bets were made, Crawley was umpire. If questions w ere argued, Crawley was judge. If one wanted advice, one went to him. If one wanted information, one went to him; and if one needed money, one went always to First Class Crawley, and put up everything but his life. No function was complete without the presence of this celebrity, be it bull tight or prize fight, or dog fight, or a prearranged resort to the arbitration of the Winchester. Crawley was a great man, in counterdistinction to a bad man. Personally, he neither quarrelled nor fought, and one would have no more considered shooting at Crawley than he would have considered shooting at his grandmother. This proprietor of the Emporium maintained his position, not by virtue of arms and skill in their use, but by virtue of an interesting something which passed with him for an intellect.
Consequently, when he and Hiram Martin, of the Golden Horn Mining Company, sat down in the private gambling room of the Emporium to a private interview with the Honorable Ambercrombie Hergan, they were expecting to realize from the time expended. They were both attentive and interested, since the reckless Secretary of State was known in the lingo of the guild as an “easy member.” If he had money, or could obtain money, it would eventually fall into their clutches as it had always done. Hence their interest was genuine.
“Boys,” said the Secretary of State, “I have a scheme to make a stake, and I want you in on it. I have been over in the East, and I have got it all figured out, and it's a cinch.”
The owner of the Golden Horn folded his hands over the vast expanse of his stomach and smiled benignly. He knew all about the usual combination of circumstances set down in the elegant diction of the gambler as a “cinch.”
He was an expert upon things of this sort, but he volunteered no information, and no comment. He merely smiled and murmured “Yes,” in a voice which reminded one of oil being poured from a very full barrel.
“You see,” continued the Honorable Ambercrombie
Hergan, “it's this way. There is a broker in Chicago who is a friend of mine. I saved him from the jug when he was a kid, and he never forgot it. Well, he went to Chicago, raked together a bunch of money, and bought a seat in the Stock Exchange. He was lucky, and now he is away up. He is on the inside, and he says that there is going to be a big raise in oil stocks; that the Standard Oil Company has been forcing it down in order to squeeze out the little dealers, and that they are right now at the bottom, and when they let go, it will fly back to a dollar.”
At this point in the narrative, Crawley murmured “Yes,” then leaned back in his chair and closed his eyes. He was not quite ready to puncture Mr. Hergan's balloon, and it was not his way to offer objections to unfinished propositions.
“Now,” said Hergan, leaning over and resting his arms on the table, “the plan is to form a big pool and buy oil, and make enough at one haul to go back to civilization and live like a king. That is the scheme, boys. It's good.” First Class Crawley opened his eyes slowly, and putting out his fat hand, began to caress the green cloth on the little round poker table.
“Billy,” he said slowly, “I expect that is a good scheme, and I expect there is money in it,—may be tubs of money, but me and Martin aint speculators; we never so much as saw a ticking machine in our life. We don't know anything about new-fangled ways to get rich. We're both old fogies,—just common old fogies, and I reckon we had better stay out. Of course, I aint knocking on the scheme. It looks good, mighty good, but me and Martin aint young any longer; we're getting old and heavy on our pins, and we aint got no nerve like we used to have. Still I aint knocking. Me and Martin would like to see you make a pile of money, would n't we, Martin?”
“Yes,” gurgled the owner of the Golden Horn, “we would that.”
The Honorable Ambercrombie Hergan straightened up and thrust his hands into his pockets. “Of course, boys,” he said, “it's a gamble, but it's a ten-to-one shot better than a faro bank. If it goes our way, we will have all kinds of money; if it goes the other way, we are skinned to a standstill. I am tired of little gambles, and I am going to make one big play if I eat snowballs for the next twenty years. I would like to have you boys in, but if you don't believe that the thing is easy to beat, you can stay out.”
An inspiration came to First Class Crawley, and he seized it with the avidity of a shark. “Billy,” he said, with amiable confidence, “you have no better friends in this here country' than me and Martin—has he, Martin?”
“No,” muttered the fat owner of the oleaginous voice, “he aint.”
“And me and Martin,” the proprietor went on, “would go in anything in the world that you wanted us to go in, and it would n't make no difference to us what it was, if you said it was a good thing. But me and Martin are pretty nigh sixty, and if we would go broke, we could never get on our feet no more. We are skeery, Billy; me and Martin are skeery, but we are ready to do anything for you that we can. We are ready to help you any way you want to be helped, because you are dead game, Billy,—that's what you are—you're dead game.”
The wary Hiram Martin was totally in the dark as to what Crawley was probing for, but he had unlimited confidence in the proprietor of the Emporium, and he assented blandly. Crawley, he knew, followed no cold trail; Crawley worked no salted lead, and if he stooped to “crook the pregnant hinges of the knee,” there was something in it for Crawley, and at no great distance.
“Well,” responded the Secretary of State,
“I am obliged to you both, but I guess there is nothing I need just now. Of course, I, have got to raise a bunch of money for this deal, but I sort of arranged that in New York.”
The ulterior motive of Crawley was now quite clear to the owner of the Golden Horn. Hergan would require money,—perhaps a large sum for his venture. If good security could be given, there was no reason why they should not advance the cash at a large and comfortable discount.
The officer of the Commonwealth moved his chair back from the table as an indication that the secret conference was at an end. As he did so, the proprietor of the Emporium leaned over and spread out his fat hands on the green cloth.
“Billy, old man,” he said, in a voice that indicated gentle reproach, “there was no necessity for you to go among strangers to raise any money you wanted; me and Martin have saved up a little, and me and Martin would be glad to let you have it if it is any accommodation, would n't we, Martin?”
First Class Crawley failed to add that both he and Martin would require the trifling detail of a substantial surety, but they concluded shrewdly that if Hergan could raise money in New York, he had obtained some first-class support, and if this security were sufficient for an Eastern bank, it was amply sufficient for all purposes known to commerce. Hence the apparently unconcerned Martin consented most amiably.
The Honorable Ambercrombie Hergan settled back in his chair and grew thoughtful. “I aint closed the loan,” he said, after some little consideration, “and I would just as leave borrow it of you, boys. The fact is, I would a little rather borrow it of you. I am paying pretty stiff for the money, and I would rather pay my friends than the Yankees in the East.”
“Yes,” observed the unctuous mining magnate, although he had not intended to speak at all.
“But,” continued the Secretary of State, “I reckon you would n't like to put up as much as I need. I am going to crowd the bank this once.”
“Well, Billy,” drawled the proprietor of the Emporium, “I expect me and Martin can make it up for you. If we aint got enough, we can get some around and piece out. Least ways, we will try. About what sum might you need?”
“I reckon,” responded Hergan, “that I shall want about fifty thousand.”
The hands of Hiram Martin tightened over his stomach, and for a moment Crawley studied the ceiling with placid indifference. He had turned Hergan into his own channel, and the transaction being assured, it was now the part of wisdom to affect gravity. Presently he spoke, slowly and anxiously: “That's a powerful big wad of money. Still, me and Martin——” Here he stopped short and turned to his companion.
“Powerful big,” echoed the mine owner, and volunteered no further observation. He understood First Class Crawley as few men are understood, and such observations were quite useless between them, except for the effect upon the victim at hand.
“Still,” continued the proprietor of the Emporium, “I expect we can raise it some way. About what terms do you allow on?”
“I guess thirty days will be long enough,” responded Hergan. “Thirty days at twelve per cent, is how I have been figuring it.”
“Yes,” drawled the gambling king, “and the security?”
“Well,” said the Secretary of State, “I have calculated to give the Governor and Culverson.”
“They are good, I reckon,” observed the wary Crawley. “Aint they good, Martin?”
“Might be worse,” responded the oily owner of the Golden Horn, “but it aint that. It's the rate. Seems like mighty little on a short loan.”
“It is mighty little,” continued Crawley, after a silence of some moments. “We would have to give more than that for what we borrowed 'round. There would n't be nothing in it for us, Billy,—not a cent to me and Martin.”
“I tell you what I'll do,” put in the Honorable Ambercrombie Hergan, abruptly, as though the idea was new and sudden in its coming, “I'll give you twelve per cent, for the money for a month, and I will enter into an agreement to turn over to you two one-eighth of what I win on the gamble.”
Crawley was very grave. The proposition pleased him hugely, but emotions found no expression with him. To loan fifty thousand dollars on good security at an enormous rate of interest, and in addition to have a substantial share in a speculation without standing to lose a cent, was a condition of affairs not likely to arise with much regularity in the span of a gambler's precarious life. Yet Crawley was not anxious. To the spectator he was sad and unconcerned. He knew quite well that this proposition was Hergan's ultimatum, and he was going to accept, but desired to appear to accept rather as a matter of kindly feeling toward Hergan than by reason of the fact that the inducement had increased.
“Billy,” he said slowly, almost sadly, “me and Martin don't want to make anything off of you, and we will try to fix it any way you want it. If you want to arrange the thing that way, why it suits us—it suits me and Martin.”
“All right,” responded the Secretary of State, getting up from the table. “I'll go over to the Governor's house and have Al fix the papers. The sooner I get it, the better chance I'll have to win a stake.”
“Billy,” called the proprietor of the Emporium, as the official of the Commonwealth was passing out through the door, “just make the note payable to Martin.”
The Honorable Ambercrombie Hergan nodded his assent, and departed, leaving the fat gambling kings of the Southwest to prolong the secret session.
When the door was closed, First Class Crawley turned to his companion, his little gray eyes slipping around in their puffy sockets.
“Martin,” he said, “aint he a mark?”
The stomach of the rotund Martin undulated like a rubber bag filled with fluid. “Of all damn fools,” he gurgled.
“Were it clear?” inquired the proprietor of the Emporium.
“Plain as a speckled pup,” responded Martin, “except the note.”
“You see,” said First Class Crawley, turning around in his chair, “you live in New Mexico, and I wanted the note in your name so that if we had to sue we could get it in the United States court. You can't ever tell what the State courts are going to do with you, but old Uncle Sam's courts don't stand no flim-flam.”
“Crawley,” announced the owner of the Golden Horn, “Crawley, you are built like a white man, but you have got a head on you like a Yankee.”
When the Honorable Ambercrombie Hergan returned to the Governor's residence he found that celebrated official and Major Culverson in the library. The irrepressible Major was engaged in presenting a lurid and highly dramatic history of how he had straightened the tangled exigencies of the Commonwealth during the absence of his associates, and how, by virtue of his magnificent personality, the entire Southwest, from the borders of lower Utah to the Rio Grande, was now the placid abode of peace and fraternal good-will. He stopped short as the Secretary of State entered, and bowed. Then thrusting his hand into the front of his coat, he exclaimed, with the affected manner of a tenth-rate actor, “Good morrow, good gambler.”
“Top chop,” responded the Honorable Ambercrombie Hergan. “And a favorite.”
“I opine,” continued the Major, “I opine, sir, from your gladsome tone that the fat sharks have been successfully harpooned.”
“Gentlemen,” said the Secretary of State, dropping into a chair by the table, “the reports of this race will announce that Hiram Martin and First Class Crawley 'also ran.'”
“Which being translated,” observed the Governor, “means that these gentlemen will advance you the money on the line suggested by your New York lawyer.”
“Yes,” said the gambler. “You are to fix up the papers, and I am to go down there to-night. Everything turned out just like Randolph Mason said it would. If the rest goes through as slick, we will be riding in carriages.”
“Produce the sealed orders,” said the Governor, partaking of the mock dramatic atmosphere.
The Secretary of State drew a big envelope from his pocket and threw it down on the table. The Executive leaned over, opened the paper, and, after having examined it carefully, took up a pen and began to write.
Major Culverson wandered over to the window and looked out at the hot, monotonous, sterile country. “I wonder,” he murmured, “if this is really the passing of the Honorable Ambercrombie Hergan?”
THE audience in the court-room arose and remained standing until the judge in his black silk robe had entered and taken his place on the bench. Then the audience resumed its seat, and the clerk began to read the proceedings for the previous day. The ceremony attendant upon the sitting of the Circuit Court of the United States carried with it an impressive sense of majestic, imperial authority, and an air of grave, judicial deliberation. It was the Government of the United States of America, the spirit of supreme order and law moving through its servant, and, next to the Great Ruler of Events, it was greatest. It had assumed for the good of men the right to sit in judgment, and to say wherein lay the justice of their complicated quarrels. Before it, every man's cause was of equal import, and every man was of equal stature; bond or free, one stood before it naked of influence, and with his shoulder made as high as the shoulder of his fellow.
This is the theory. If it fails, it is because the law at best is but a human device, and its servants, after all, are but men like the others.
The building in which the Federal Court held its session was a substantial, handsome structure, and maintained a strange contrast to the town in which it stood. The town was rough, miserable, uncouth; the temporary habitation of men, struggling ever with the relentless ananke of things; in equal contrast to the officers of this court was the audience in the great court-room. They were the pioneers of civilization; a motley crowd in which the best and worst of human society was mixed and intermixed. They were, for the most part, bronzed, bearded, fearless examples of the inexorable law of the survival of the fittest, but not all. Some were the reckless advance agents of those hardy vices that follow close in the wake of empire,—devils too villainous to be tolerated in the cities of the East, and too bold and too wary to be stamped out by the deliberate machinery of the law.
Against these the officers of the court bore some evidence of polish. They were exact, calculating men, bred to respect order, and obey and maintain the customs of law. The contrast was significant, and one recalled and understood the constant bitter conflict between the judicial tribunals of the State and the judicial tribunals of the Federal Government, bitterly waged and as yet undecided. From one standpoint, this was the calm tribunal of the supreme power of the land, providing the same rights and remedies on the very border of its jurisdiction that it provided at the capital itself, favoring no condition and acting as even-eyed as nature.
On the other hand, one understood how the remote Commonwealth held this court to be the tribunal of a far off imperial government, seeking to enforce laws and customs foreign and repugnant to the laws and customs of its people. To them the Federal judge was a king's governor, travelling with his retinue over a subjugated province, and enforcing his edict by virtue of foreign armies quartered convenient to his hand. And looking on from this point of view, one understood why the outpost State hated this court so bitterly, and whence arose the fierce clamor against it. One understood how the far West smarted under its injunctions, and denounced them as the royal mandates of an emperor's consul, and how the far South collided with this tribunal and cried out against it to the Congress of the United States in a memorial clanging like a bell.
So the conflict was easy to understand, and it was easy to appreciate how large the spectre of discord loomed, and most difficult indeed to force the problem to some happy end.
When the clerk had finished, the marshal called the jury, and struggled bravely, but at times unsuccessfully, with the marvellous tangle of names. Indeed, if the list of this panel had been placed before a student of philology, he would have required no further history of the civilization of the Southwest. When the marshal had ended, the judge directed that the jury should be dismissed until two o'clock, and when order was again restored, the judge turned and looked down gravely from the bench.
“This court,” he said, “is ready to pass upon the matter taken under advisement yesterday afternoon. It seems that one Hiram Martin, a citizen of and a resident in the State of New Mexico, brought an action in this court against Ambercrombie Hergan and others to recover the sum of fifty thousand dollars, money, as it is said, borrowed by the said Hergan. The declaration contained the common counts in assumpsit, with which was filed, in lieu of the bill of particulars, a promissory note, made by the said Hergan to the said plaintiff, calling for fifty thousand dollars, and endorsed by one Randal and another Culver-son. This note, in addition to the matter usually had in such instruments, recited that it was given in accord with a certain agreement of even date therewith, made and entered into by the parties to the said note. The case coming on for trial, the defendants, by their attorney, appeared and filed their plea exhibiting the said agreement, maintaining that the said note was given for money loaned for the purpose of being used in a gambling venture, and was, therefore, void at law. An issue being had upon the said plea, the case was put to trial, and the said agreement having been admitted, the defendants, by their attorney, moved this court to exclude the evidence, and direct the jury to find for the defendants; which motion this court took time to consider.
“The facts herewith concerned are involved in no controversy, and the agreement being couched in plain terms, admits of no doubtful construction. It would seem that the defendant Hergan called at the gambling house of one Crawley, a resident of this State, and requested a private interview with the said Crawley and the plaintiff; that in this interview Hergan explained that he was considering what it pleased him to denominate 'a gambling venture in oil,' and solicited the two men to join him in the venture. This they declined to do, but suggested that they would advance to Hergan such money as he might need upon a promissory note with good security.
“It appears that some controversy arose as to the rate of interest to be paid; and a division of the profits was suggested in lieu of the larger per cent. This matter was finally concluded by the plaintiff and the said Crawley advancing the said sum, and taking therefor the note filed in this cause, and in addition thereto entering into this agreement in writing with the said Hergan, wherein it is set forth that the money loaned is to be used by the said Hergan for the express purpose of 'a gamble in oil,' and for no other purpose; and that if any profit should result from said gambling venture, the said plaintiff and the said Crawley were to receive one-eighth of said profits. It seems that the money was paid and presumably used by Hergan for the purpose as stated. Afterward the note was presented for payment, and being refused, was duly protested, and later sued upon in this court.
“It is maintained by the defendants that this transaction was contrary to public policy, and that the money, having been loaned for a known illegal purpose, cannot be recovered in a judicial tribunal, but falls Within the purlieus of those matters which are par se ex turfe causa, and for which the law provides no remedy. On the contrary, it is urged by counsel for the plaintiff that the transaction as between the parties to this suit was entirely commercial and innocent; that the plaintiff is a mere lender of money in a bona fide transaction, and is in no wise a party to any illegal proceeding, and that the mere use to which the money was put is a matter of no moment.
“The law, being for the welfare and the protection of human society, refuses to recognize and enforce certain contracts had among its citizens, when those contracts are founded in moral turpitude or inconsistent with the good order or solid interests of society.
“'No people,' declares Chancellor Kent in his Commentaries, 'are bound or ought to enforce or hold valid in their courts of justice any contract which is injurious to the public rights or offends their morals or contravenes their policy or violates a public law.' Hence contracts having an illegal or immoral consideration, or tending to the violation of law or the debauching of public morals, are held to be contra bonas mores, and are void.
“It is said that the object of all law is to suppress vice, and to promote the general welfare of society, and it does not give its assistance to persons to enforce a demand originating in their breach or violation of its principles and enactments. It is not necessary that the law expressly prohibit or enjoin an act. It may impliedly prohibit or enjoin it. In either case a contract in violation of its principles is void under the wholesome maxim ex turpi causa non oritur actio.
“It may happen, and, indeed, frequently does happen, that the individual suffers great hurt from this sweeping policy of the law, but it is held that the good of the commonwealth rises above the mere benefit of the individual citizen, and that where the welfare of the whole of society is involved, the law will not pause to consider the injury entailed upon the mere unit. Hence the policy of government in the exigencies of war, when protection must be had against violence, and the policy of government in the peaceful administration of the law, when protection must be had against vice.
“Thus gambling, wagering, and all gambling and wagering contracts and transactions are illegal as against public policy, since they are repugnant to the well-being of society, fraught with vice, pregnant with demoralization, and corrupting alike to the youth and to the aged, as they inspire a hope of reward without labor.
“It is significant that in matters of this nature human society has been progressive. Under the common law of England wagers were not unlawful or unenforceable, but the statute of 9th Anne followed and altered the common law, and the statutes of 8th and 9th Victoria altered it yet farther, and in the United States every separate Commonwealth has its respective statute striking at this vice.
“I think it will not at this day be denied that all transactions in stocks, by way of margin, settlement of differences, and payment of gains or losses, without intending to deliver the stocks, is a gambling or wagering operation which the law does not sanction, and will not carry into effect; and it has been held in the Supreme Court of the United States in the case of Irwin vs. Williar, 'If under the guise of a contract to deliver goods at a future day the real intent be to speculate in the rise or fall of prices, and the goods are not to be delivered, but one party is to pay to the other the difference between the contract price and the market price of the goods at the date fixed for executing the contract, the whole transaction is nothing more than a wager, and is null and void.' And that 'Generally in this country wagering contracts are held to be illegal and void as against public policy.'
“Indeed the courts of the land have gone to the extremity of denouncing in no uncertain terms the dangerous character of these illegal ventures. Judge Blauford, in the case of Cunningham vs. The National Bank of Augusta, in speaking of these transactions termed 'futures,' declares: 'If this is not a speculation on chances—a wagering and betting between the parties, then we are unable to understand the transaction. A betting on a game of faro or poker cannot be more hazardous, dangerous, or uncertain. Indeed it may be said that these animals are tame, gentle, and submissive compared to this monster. The law has caged them and driven them to the den. They have been outlawed; while this ferocious beast has been allowed to stalk about in open mid-day with gilded signs and flaming advertisements to lure the unhappy victim to its embrace of death and destruction. What are some of the consequences of these speculations in 'futures'? The faithful chroniclers of the day have informed us, as growing directly out of these nefarious practices, that there have been bankruptcies, defalcations of public officers, embezzlements, forgeries, larcenies, and deaths. Certainly no one will contend for a moment that a transaction fraught with such evil consequences is not immoral, illegal, and contrary to public policy.'
“In so far as this doctrine is concerned with the case at bar, it is certain that the parties understood and intended that the money loaned should be used for the purpose of engaging in an illegal speculation in oil,—'a gamble in oil,' as it is termed in the agreement, and that such gambling transactions are against public policy and the law of the land. But it is contended by learned counsel that all this can have no bearing upon the case at bar for the reason that in the cases heretofore cited announcing these conclusions of law, the litigants were the parties who dealt with or for each other, and were the immediate parties engaged in an unlawful gambling venture, and the ones to gain or lose directly by the venture, and not a mere stranger who loaned money to another to engage in such transactions, and having but an undetermined interest in the result; and that the law will not lend its aid to a further wrong. The defendant having committed one wrong cannot be permitted to use his first wrongful act as an instrument whereby to effect a second wrongful act.
“The objection is ingenious, but I judge fully met by the declaration of Lord Mansfield in Holman's case: 'The objection,' said the learned judge, 'that a contract is immoral or illegal as between plaintiff and defendant, sounds at all times very ill in the mouth of the defendant. It is not for his sake, however, that the objection is allowed, but it is founded on the general principle of policy which the defendant has the advantage of, contrary to the real justice as between himself and plaintiff, by accident, if I may so say. The principle of public policy is this: ex dolo malo non oritur actio. No court will lend its aid to a man who founds his cause of action upon an immoral or illegal act. If from the plaintiff's own statement or otherwise the cause of action appear to arise ex turpi causa, or the transgression of a positive law of this country, then the court says he has no right to be assisted. It is upon that ground the court goes, not for the sake of the defendant, but because it will not lend its aid to such a plaintiff.'
“This claim of the plaintiff to this action is unsound for the further reason that any promise, contract, or undertaking the performance of which would tend to promote, advance, or carry into effect an object or purpose which is unlawful, is itself void and will not maintain an action. The law which prohibits the end, will not lend its aid in promoting the means assigned to carry it into effect. Nor is it possible for an act contrary to law to be made the basis of a contract enforceable in courts of law. Hence when one lends money to another for the express purpose of enabling him to commit a specific unlawful act, and such act be afterwards committed by means of the aid so received, the lender is a particeps criminis, and the law will not aid him to recover money advanced for such a purpose, and much less would it assist him, if, as in this case he retained an interest in the result of the venture.”
It was very unusual for counsel to interrupt the judge in the delivery of his opinion, but at this point the attorney for Martin arose.
“If your honor please,” he said, “this court is taking away the remedy of the plaintiff, and permitting the wrong to stand. Does this court reverse the ancient doctrine upon which the theory of human justice has its eternal basis, the ancient doctrine that the law will always provide a remedy for a wrong?”
The faintest shadow of a smile flitted over the judicial face.
“That sage maxim: 'lex semper debit remédiant,'” answered the judge, “is a gigantic error couched in very good law Latin. The motion to exclude the evidence is sustained, and the jury will find a verdict for the defendants.”
THE Governor's machine marched gravely out of the Circuit Court of the United States and down the wide steps, the Major leading, the Executive following second, and the Honorable Ambercrombie Hergan bringing up the rear, every man as silent and as solemn as a Japanese diplomat. The machine passed through the great arched doorway and directly across the street to “The Happy Maria” saloon, an institution with a variegated past. The machine filed in through the door and lined up before the bar as mysteriously as a country delegation in a caucus.
The Bartender of “The Happy Maria” was a lame actor from St. Louis. When he turned and beheld the solemn array, he stepped back and tapped his forehead tragically with his fingers.
“Ha!” he muttered, “it is Ulfius and Brastias and Sir Bedivere.”
To this no response was made, except that the Major raised his hand and pointed to the bottle of “Dougherty” reposing on the second shelf beside the box of “scrap” and the proprietor's pistol-belt. The bartender hurried forward, took down the bottle, placed three little glasses on the bar and began to fill them. When he came to the third glass, he paused and set down the bottle. A puzzled expression gathered on his face. He thrust his forefinger into his mouth and began to lisp:
“Be there two or be there three
In our king's companee?”
The Major turned just in time to catch a glimpse of the Governor as he vanished in a telegraph office next door; then he swung around toward the barkeeper with the dramatic abandon of a professional at a benefit.
“Pour on, good seneschal,” he cried; “it is the man who would be married. He hastens with glad tidings to the well beloved. He will return.”
(See the famous opinion of Henry St. George Tucker, President of the Supreme Court of Virginia, in the leading case of Gallego's Executors vs. Attorney General, 3 Leigh, 450; also the opinion of John Marshall, Chief Justice of the United States, in the case of the Trustees of the Philadelphia Baptist Association el at. vs. Hart's Executors, 4 Wheaton's U. S. Reports, 330; also Knox vs. Knox's Executors, 9 W. Va., 125; 2y W. Va., 109, and cases cited.)