The Man of Last Resort; Or, The Clients of Randolph Mason

by Melville Davisson Post

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.