Chapter II

As long as there exists the right of appeal there is a chance of acquittal. Otherwise the right of appeal would be a sham and an insult more intolerable, even, than, to the man convicted of murder, the right to say why he should not receive the sentence which nothing he may say will avert. So long as acquittal may ensue guilt is not established. Why, then, are men sentenced before they are proved guilty? Why are they punished in the middle of proceedings against them? A lawyer can reply to these questions in a thousand ingenious ways; but there is no answer. Let the “legal fraternity” reflect that a lawyer is one whose profession it is to circumvent the law; that it is a part of his business to mislead and befog the court of which he is an officer; that it is considered right and reasonable for him to live by a division of the spoils of crime and misdemeanor; that the utmost atonement he ever makes for acquitting a man whom he knows to be guilty is to convict a man whom he knows to be innocent. The methods of our courts, the traditions of bench and bar, exist and are perpetuated, altered and improved, for the purpose of enabling lawyers as a class to exact the greatest amount of money from the rest of mankind. The laws are mostly made by lawyers, and so made as to encourage and compel litigation. By lawyers they are interpreted and by lawyers enforced for their own profit and advantage. The over-intricate and interminable machinery of precedent, overrulings, writs of error, motions for new trials, appeals, reversals, affirmations and the rest of it, is mostly a transparent and iniquitous system of exaction. What remedy would I propose? None. There is none to propose. The lawyers have us and mean to keep us.

The villainy of making men suffer for crimes of which they may eventually be acquitted is consistent with our entire system of laws—a system so complicated and contradictory that a judge simply does as he pleases, subject only to the custom of giving for his action reasons which at his option may or may not be derived from the statutes. He may sternly affirm that he sits there to interpret the law as he finds it, not to make it accord with his personal notions of right and justice. Or he may declare that it could never have been the legislature’s intention to do wrong, and so, shielded by the useful phrase _contra bonos mores_, pronounce that illegal which he chooses to consider inexpedient. Or he may be guided by either of any two inconsistent precedents, as the better suits his purpose. Or he may throw aside both statute and precedent, disregard good morals, and justify the judgment that he wishes to deliver by what other lawyers have written in books, and still others, without anybody’s authority, have chosen to accept as a part of the law. I have in mind judges whom I have observed to do all these things in a single term of court, and could mention one who has done most of them in a single decision. The amazing feature of the matter is that all these methods are lawful—made so, not by legislative enactment, but by the judges. Language can not be used with sufficient lucidity and positiveness to bind them.