you had the corpse ready? You used to know little Mamie Jones, Doctor, and you attended her in her last illness. Now she is in glory where infants are at rest." "Gentlemen of the jury, Doctor Roysten don't pretend to charge me for curing my wife, and he don't pretend to charge me for killing her, as he did his other patients. He has eaten enough chickens at my house to pay for his salve, and we furnished the rags," and so forth and so on. There was a verdict for the defendant. Peter Wilt was a natural born advocate. He was a Diamond in the rough, speaking by the gift of tongues, and winning a law-suit, in which Alexander H. Stephens refused to speak for him, and Bob Toombs thought it not worth while to speak for the plaintiff. There was a man, who, if he had known his powers might have carried off the Gates of Gaza, or spoken for a man like Stephen, the Martyr. It is the boast of the great American Democracy that she knows no Lord or Duke, or he that wears any title of nobility, where all are perfectly equal before the law, and denies not, to the most humble of her citizens, rich or poor, learned, or unlearned, the God-given right to enjoy to the fullest, equal opportunity. There is no royal road to learning. Some achieve it through few, some through many books. The gate is ajar to any one who can read and write. Richard Arkwright revolutionized the loom-work of England by the marvels of his inventive genius before he was thirty years old, fifteen years before he could either read or write. In the legitimate ventures among men, again, “Let him take who has the power. Let him keep who can." "Take Moses' Rod; the hammer and nail with which Jael slew Sisera; the pitcher and trumpet of Gideon; take the Ox-goad of Shamgar, the jaw-bone of an Ass; the Sling and stone of David; wax valiant in fight, and put to flight the armies of the aliens." But remember, that many of the most highly educated lawyers of this country are spending their time in advising their rich clients as to just how far they can go in their nefarious business schemes, and still keep out of the penitentiary; and remember further that there is scarcely a combine or conspiracy anywhere against the best interests of the American people, that does not have the brains of some American college or University behind it. THE UTTER PARADOX ABOUT THE LEARNED AND THE UNLEARNED There is an utter paradox made up of the so-called foolish and unlearned, and the so-called wisdom of the wise. Every man has his creed. Poor Robert Burns had his, as the Lyric poet of Scotland. It was this: "Give me a spark o' nature's fire It's a' the learning I desire, Then though I drudge through dub and mire, At pleugh or cart. My Muse thogh hamely in attire, May touch the heart." "Ignorantia juris non excusat" is a challenge to every man that he will not be heard to plead ignorance of the law. Judges and lawyers are always presumed to know the law, but they are the only persons who dispute and wrangle over it, and this gave rise to that other saying, "That everybody except lawyers and judges, are supposed to know the law." Largely, indeed, the law, in particular cases, is mere matter of opinion, and that based, often, on an imperfect human standard, or more properly speaking, imperfect reason. Lawyers lay their briefs before appellate courts, not so much in a search, an impartial investigation of the law, but to have the courts of last resort, adopt the views of the appellant and his counsel. Some times the courts of last resort do this, some times they refuse, other times they are wholly unable to agree among themselves, to such an extent that legal questions, which never should have disturbed the legal mind of lawyer or judge anywhere, traveled though years of litigation, many of which still remain unsettled, or at least the subject of controversy. It has not been a question of whether John Jones, or John Smith, or any other John or Jim, were college-bred, or not; learned, or unlearned; strife and contention over legal questions constitute the lawyers meat and drink. They have never looked upon the legal profession, and court judges as a mutual admiration society, where all was to be peace and harmony. It is the uncertainty, the pit-falls and perplexities of the law that entice; and when he goes into court he does so with the expectation that neither judge or other lawyer will agree with him about anything except that which no one can even plausibly question. If ten or fifteen years ago any candidate for admission to practice law in West Virginia had been questioned as to whether an appeal would lie from the judgment of a justice in case tried by a jury was appealable, and he had answered in the negative, his inquisitors on his right to admission would have been astonished, according to the state of the legal mind at that time. If he had made a like grade on other branches he would have been rejected. And yet, in the light of Barlow vs. Daniels, 25 W. Va. 512, already referred to, he would have made a grade of 100, on that one point, and yet have turned out to be off in the end, on that one point. He would have been in the very same fix, if to a question of whether such a judgment could have been reviewed by writ of certiorari; and on the question of whether a judgment in any case in which there was no issue joined, he would have been in total darkness up to this very day in case the trial was before a jury. The question has been discussed in Barlow vs. Daniels, cited. Hickman vs. B. & O. Ry. Co., 30 W. Va. 296; Railway Co. vs. Faulkner, 4 W. Va., 180; Ruffner vs. Hill, 21 W. Va. 159; Brown vs. Cunningham, 23 W. Va. 109; in the 4, 21 and 23 W. Va. cases cited our Court of Appeals without qualification, in the syllabus in each of said cases, said it would reverse any case, civil, or criminal in which there was a judgment on the verdict of a jury, without issue joined while it held exactly the reverse in said case of Barlow vs. Daniels, 25 W. Va. 512, as also in Vandervort vs. Fouse, 30 W. Va. 326, in both of which, Woods, judge, delivered a strong dissenting opinion. In Hickman vs. Railroad Co., plaintiff had judgment before a justice on the verdict of a jury, the Railroad Co., not having appeared, it appealed from the judgment, and among other things contended it was void for lack of joinder of issue, and cited Railroad Co., and Faulkner, Ruffner and Hill, and Brown vs. Cunningham above mentioned, as sustaining it's contention. The court held otherwise, saying the cases just mentioned were only incidents in which ineffectual attempts had been made to join issue; that is the court had simply penalized ineffective attempts to join issue in jury trials where it was not essential. In all these judgments before justices and a jury, which a long time were held nonappealable, a writ of certiorari was for long years refused; but finally the justice of the peace was abolished as one of the courts of last resort of this state, for we were allowed to get by it with a writ of certiorari. I recall the first time I started to "go upon writ of certiorari;" I had told my client that was the only way, then. "H- -1,” said he, don't do that, we will be sure to be beat on a "searcharary," for I never have claimed that Isner stole the goods I am suing him for." Well the questions kept on grinding, and finally in Richmond vs. Henderson, away up in 48 W. Va. 389, in opinion by Brannon, judge, we were cut loose from the writ of certiorari, court holding it would no longer work, and given back an appeal, our old appeal from a judgment of a justice on the verdict of a jury, overruling all contrary holdings in the cases referred to; and now we are back in the strait and narrow way, and ready for the next mix up. As we have stated, it had been the same sort of a run on the question as to within what time a justice should enter,-spread on his docket, his wise, or unwise determination on the merits, of controversy between the parties to the suit. Again, we do not offer this as a criticism of our judges. We only wish to recall the advice of Davy Crockett-"Be sure you are right" as far as possible; and this our Court of Appeals evidently did in all the cases above mentioned. It was M. T. Frame, of Wheeling who first started this legal controversy over the provision of our Constitution to the effect, “That no fact tried by a jury shall be re-examined otherwise than by the rules of the common law." Frame's case did not go to the court of Appeals. But he called a jury for the express purpose of testing the question. An ox-team and loads of hoop-poles in a "back county" in W. Va. had been his companions while reading law. Scarcely any law question in the judicial history of this State so perplexed our courts, while it lasted; and we never got rid of it till it was killed with a club. CHAPTER X LAWYER STATESMEN WHO TOOK THE CHIEF If we go back to 1775, and from there still look backward through the centuries that had then gone to rest, we shall not be able to discover in one body so eminent a body of statesmen, so unselfish and so imbued with wisdom, as those who, first to last, formed the Government of the United States of America. Among the greatest, if not the greatest tribute paid by any one to anybody of the sons of men, was that of Pitt, the English Earl of Chatham, to the men of whom we are about to speak. "History, my Lords," said Pitt, in the British Parliament, "has been my favorite study; and in the celebrated writings of antiquity, oft have I admired the patriotism of Greece and of Rome, but my Lords, I must declare and avow that in the master states of the world I know not the people or the Senate who can stand in preference to the Delegates of America, assembled in General Congress at Philadelphia." They were of the blood of the Puritans, Nonconformists and Covenanters; the Pilgrim Fathers and the Caviliers. They were imbued with the Spirit of Columbus, Smith, Raleigh, Henry, Hudson, Hampden, and Algernon Sidney. They were as brave as those who stood at Marston Moor and Nasby. They were the compatriots of those who in the colonial wars of the Mother country, had been imbued with the love of liberty, and in a military point of view had become able to achieve and defend it, at Lexington, Concord, Bunker Hill, or elsewhere. With the patience of Job, and the faith of Abraham, they were the friends of God on High. Inheritors of all the glories of the British Empire, "they were equipped" said John Bright, "to endow the western hemisphere with knowledge and civilization." |