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to set aside the return on a writ, stating that he wanted it understood that he appeared for the purpose only of the motion. The judge said: "You remind me of the girl who had an engagement to meet her fellow at the back gate the next evening; she came down precisely on time and said to her man: 'I came to tell you I couldn't come.'" Like myself, she came all the same. That old judge, unlike a good many other judges, had a good deal of common sense; and, like a good many others, was not very high up in the classics. I tried an action of ejectment before him once. My opponent was Governor Phelps, of Missouri, a most excellent lawyer. In the progress of the trial, to eke out his case, it became necessary for the governor to have recourse to the records of the court in the attachment case upon which his title depended. On objection to the introduction of the record for insufficiency, the governor moved the court for an entry nunc pro tunc, which I met with the suggestion that while it is competent for a court to make an entry nunc pro tunc, there must have been some memorandum made by the court at the proper time from which such proposed entry could be made. The governor read a great many authorities touching the power of a court of record at a subsequent term to amend its record, but failed to meet the objection of a want of sufficient memorandum. The old judge scratched his head and said: "Governor, I see the nunc, but where is your tunc? It seems to me you have forgotten another Latin phrase, and that is damnum absque injuria."
It seems to me, as an old-fashioned Democrat, before the days of 16 to 1, that there must be some misspelling about my toast; the only kind of "Hoc" with which I was much acquainted was spelled with a "k."
We have been regaled a good deal this evening with discussions about errors and appeals, and the appellate courts have been reviewed and razzle-dazzled ad infinitum. I have had a little experience with appellate courts. I have been there myself. These criticisms recall an early recollection in my boyhood. My father was an old-fashioned Presbyterian, and compelled me to go with him to the old log church with persistent regularity every Sunday. The benches in the church ran back from the pulpit at an angle of about 45 degrees, until the rear bench was about six feet from the floor. In order to sit where I might have an opportunity to slip out of doors during the hour and a half sermon, I would climb up on this rear bench, from which my feet were suspended in the air; and the quantity of blood that ran
into them accounts for the size of my feet. The pastor, old Father Barnes, believed in the Mosaic law. He preached continually about Moses in the wilderness and the valley of dry bones, and in his dispensation he never reached the birth of Christ. Some of his flock grew weary of his ministry, among whom was an old deacon, known as "Uncle Bobby," who said he could beat Brother Barnes preaching. So one hot summer Sunday Brother Barnes was absent, and the congregation concluded to give Uncle Bobby a chance to vindicate his judgment. He got into the pulpit with some hesitancy, but he got along pretty smoothly reading a chapter in the Bible, the whole of which he took for his text, and he lined the hymn with a good deal of unction in his voice, and he began his sermon in a pretty high key, and got along about as well as Brother Barnes for four of five minutes, when he began to perspire very freely, and the drops of perspiration grew in size, and his words failed him. He drew out an enormous cotton handkerchief and mopped his face with great energy. Finally he said: "Brethren, it is devilish hot to-day, and too hot to preach; if any of you think it's an easy thing to preach just get up here and try it. I have had enough of it;" and walked down out of the pulpit without dismissing the congregation. Nobody volunteered to prolong the services. If any of you lawyers who have so much to say about how courts should be run think you can do better than the rest of us, I only hope you may have the chance some day to try it; when we will see how many Uncle Bobbies there are among you.
A lawyer's idea about a judge depends a good deal upon how his particular case turns out. Col. Tom Fenlon, of Leavenworth, Kansas, had a case of some celebrity in my court at Kansas City. Mr. Justice Brewer, now present, then circuit judge, first tried the case to a jury, which resulted in a hung jury. The next term of court I gave it a turn, with the same result. Judge Caldwell, now present, came on to the circuit, when he tried it. In his charge to the jury he told them that he understood there had been two mistrials in this case, and he wanted them to understand that he didn't have hung juries in his court; whereupon the jury went out and promptly returned a verdict for ten thousand dollars in favor of the plaintiff. The case was appealed to the Supreme Court, and somebody was reversed. Shortly afterwards I met Col. Fenlon, who was feeling pretty sore over the reversal, which cut his case up by the roots. He said: "If Blackstone were living to-day he would have to revise his definition of law;
that the law was no longer a rule of action prescribing what is right and prohibiting what is wrong, but was so full of uncertainties that now it is the last utterance, by way of guess, of the last s- of a bin authority."
What an illimitable field is suggested by the words: Absque hoc-without this? Tradition attributes its origin to Adam. When he was wandering all alone about the garden of Eden he began to feel lonesome. The song of the birds, the music of the brooks, and the sweet charms of the garden began to stale on him. And when the shades of night fell from the skies and his mighty frame was pillowed on the earth, with the bending heavens for his covering, and the stars were keeping their silent vigils over his slumber, he had dreams-beautiful visions came to him in the form of angels in dimity. And when the birds began to twitter as they dreamed of the coming of the morning, Adam wiped the dew from his face, and opened his eyes to catch a glimpse of the beautiful image again, and God saw that he was "fearfully and wonderfully made," and that there was a surplus rib in his anatomy. At the touch of the creative finger, woman stood forth radiant in the light of the morning. Adam awoke, and as he beheld her, he exclaimed; "Absque Hoc." Then Eve looked and saw the apple, how tempting it was, with its cheeks kissed by the sunlight; and she said to Adam: "Absque hocwithout this you can not be as wise as God." Adam climbed the apple tree, while Eve sat under the fig tree; and there trouble began. From that day to this the love of woman has been the ruling passion of man and coy modesty the crowning virtue of
There is another passion of the human heart, which through the march of the centuries has blazed up like volcanic fires in the orient, now flaming and then paling, but the spark in the smoldering embers never went out. It was the instinct of Moses when he smote the Egyptian, the thirst of Plato, the ideal of Martin Luther, the glorious hazard of the three memorable Switzers, the sublime vision of Joan of Arc. It was the ceaseless yearnings of the soul for more light, more freedom. Despotism could not wholly subdue, nor ignorance smother it, nor the meretricious display of crowned power awe it into silence. And when the Genoan sailor, in the providence of God, had it put into his mind to go to Ferdinand and Isabella, with his strange story of desired adventure, neither he nor they had any conception of the won drous things that were to be wrought out by the discovery of a
new continent, for humanity and freedom. "Without this"-the magnificent temple of freedom and liberty which Milton in his blindness saw arising on this continent would never have been the apotheosis of the sovereign whose successors are to-day engaged in a struggle to the death with fair Columbia, in their efforts to perpetuate the cruelest and rottenest despotism that curses the civilized world. And as we banquet around this beautiful festal board to-night, the rich, red blood of the noblest young men of the American republic is flowing like water, freely mingling with that of the cowboy and the naked Cuban, in order that the banner of our freedom, radiant with glorious memories and gleaming in every fold with the light of unbroken constellation, may rise like new stars of hope in the sky of the lowly and the oppressed. "Without this," the Cuban mothers, with sallow, sunken cheeks, and hollow eyes, with skeleton babes pressed to their desert bosoms, might lift their bony hands in vain to heaven for deliverance from the despot's iron heel.
"God works in a mysterious way his wonders to behold." The proclamation between America and Spain found an American Yankee, with his fleet, in the waters of China. The inexorable decree of neutrality forced him out of Hong Kong into the open sea. He was six thousand five hundred miles from any home port. His eagle eye caught sight of Manila bay, and he shouted: "Absque hoc-without this what shall we do?" With a courage as sublime as that expressed in the stern code of Philip of Aragon, which made no provision for either surrendering to or retreating from the enemy, and a resolution as immovably fixed as the eternal granite mountains of his New England home, he drove his fleet headlong, seemingly, into the very jaws of hell. But, since the days when her grand Armada went to "do up England," in less time than we banquet to-night, Spain had the largest submarine navy in the world. But yesterday, as it were, our minstrels were chanting:
"We still depend on France for wine,
But none on earth competes
With Uncle Samuel in the line
Of high-grade bottled fleets."
On the early morn of our 4th of July, Cervera thought he would go on a spree, and pulled the cork; whereat Schley exclaimed: "Absque hoc," my noble dons, you must join McGinty
at the bottom of the sea. Those fool Spaniards seem to know so little of the American character. Cervera ought to have known that he could not on the 4th of July uncork anything without danger of the "American hog" gobbling it up. While to-night a feeling of sadness sweeps over us at the thought of the sorrowing homes throughout the land, because of the fallen brave, yet "without this" our patriotic hearts would not feel the thrill of the beautiful sentiment at the spectacle the war gives us of the scarred, grim veterans of the South, with their children, fighting, dying, side by side with the old veterans of the North, and their children, all for the honor and glory of the Republic, and the cause of humanity. "Without this" we would not feel the warm blood of pride and joy leaping in our veins at the spectacle of gallant, fighting Joe Wheeler and young Roosevelt, "from spur to plume a knight of tournament," shoulder to shoulder and heart to heart, beneath the brazen skies of Cuba, charging the lurking Spaniards among the brush and tangled wood, each inspired with the ambition, if need be, to have for their winding sheet the flag of the Union. What a stirring epic; what a patriotic inspiration!
I know that conservative, wise and patriotic men look with some misgivings and concern at our navy exploiting itself in faroff Asiatic waters. I know, too, that the eagle, emblem of our towering strength, for a century chained to his native forest, is a dangerous bird when given wing; and that all Europe looks on with bated breath and amazement at the swoop of his pinion. But what are we going to do with the Philippines? Are we to give them back, and apologize to Europe for taking a prize of war? An old darkey the other day was found by the owner of a coop with a lot of chickens, trying to sell them at the market house. The owner lived in the country; and when he laid hands on the captor of the prize, the old darkey said: "Massa, I spect I made a mistake going so far for this game; but thinks as I has fetched 'em so fur you ought to pay me for bringing 'em to market fer you." We have at least brought these islands into the notice of the world, and as we took them as a legitimate prize of war, I demand that we be paid for them before letting them go.
No fear need be entertained that this country will imitate imperial Rome. We will build no Appian Way, over which our legions will march to foreign conquest, pillage and plunder. Our country will be imperial without imperialism, powerful without autocracy, imposing in her splendor without abating one atom of her democratic simplicity and common sense. Until the stars