The notion that a standing army of whatever strength could be a “menace to American liberty” is one of the crudest and most discreditable of errors. It is an outgrowth of ignorance, and rooted in a false analogy. It assumes that the “common people” of the Old World monarchies are oppressed, discontented, ripe for revolt and republican government; that they are held in subjection by the powerful armies that serve their tyrants. Of course all this is mere moonshine, but if true it would hold no such lesson for us as we think we read in it, namely, that all armies are serviceable tools to tyrants and usurpers. A European army, recruited by conscription and officered by noblemen and the sons of relatives of noblemen, is an entirely different thing from what we have, and very different indeed from what we may have if we choose. The monarchical army sustains the monarchy, not because an army is naturally and necessarily monarchist, but because monarchy is the constitutional government; and armies, more generally than other human organizations, are faithful to duty and obedient to law. For the same reasons an American army will sustain the republic. Whenever a monarchical army has not sustained the monarchy—has assisted to overthrow it and set up a republic—then, indeed, have we been given a reason to distrust “the military”—of a monarchy.
An army of raw volunteers springing to the colors to meet some unforeseen emergency is an inspiring spectacle, but that kind of army is good for nothing when pitted against trained and seasoned troops. Every military man knows this, although there are no large recent instances free from obscuring elements, like “the war of 1812.”
In European countries that have universal conscription the years that the young men pass in the army are the best spent years of their lives. Those who enter the service as ignorant peasant lads, brutally stupid, leave it well set up in body and mind—with better health, better morals and better intelligence. The American peasant is of course perfect in respect of all that, but perhaps his refining society would be of advantage to his officers.
SOME FEATURES OF THE LAW
I
THERE is a difference between religion and the amazing circumstructure which, under the name of theology, the priesthoods have builded round about it, which for centuries they made the world believe was the true temple, and which, after incalculable mischiefs wrought, immeasurable blood spilled in its extension and consolidation, is only now beginning to crumble at the touch of reason. There is the same difference between the laws and the law,—the naked statutes (bad enough, God knows) and the incomputable additions made to them by lawyers. This immense body of superingenious writings it is that we all are responsible to in person and property. In it is unquestionable authority for setting aside any statute that any legislative body ever passed or can pass. In it are dictates of recognized validity for turning topsy-turvy every principle of justice and reversing every decree of reason. There is no fallacy so monstrous, no deduction so hideously unrelated to common sense, as not to receive, somewhere in the myriad pages of this awful compilation, a support that any judge in the land would be proud to recognize with a decision if ably persuaded. I do not say that the lawyers are altogether accountable for the existence of this mass of disastrous rubbish, nor for its domination of the laws. They only create and thrust it down our throats; we are guilty of contributory negligence in not biting the spoon.
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.