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Possible of peace oped with

Europe. But still again the possibility of building such a structure in the near future depends on the possibility of making among nations a binding agreement. The fifth was the League of Peace. With what pleasure we listened to the address on that subject, the possibility of creating a league of peace-comprehensive or partial, so that it be a strong union of nations leagued together to maintain peace and prevent war! Sixthly, in Professor Clark's paper we heard developed with great persuasiveness, an argument for a league of peace based on the existing alliances. That looked more possible than any other league we had heard of—a league of peace that might grow out of the present alliance between Great Britain, France, Russia and Japan. These are the six items on my list, not alike, yet resembling each other, and all dependent upon the possibility of making among nations, many or fewbut if few, then very strong nations-a league, international agreement, or federation which will hold and prove effective."

“This survey,” President Eliot continued, “brings me to the most discouraging fact of these terrible ten months, the fact which we must face and look at squarely and resolutely; namely, that there is at least one strong nation in Europe today that says, and says in act as well as in words, ‘We regard no previous agreement as binding on us in the face of an immediate military or naval necessity.' There is the most fearful fact which has been brought to the knowledge of the world within the last ten months. You perceive instantly that none of the six proposals I have alluded to is available for the purposes of humanity, unless an agreement among nations can be made and kept without regard to changing circumstances, until a new agreement is made by the same parties to meet the changed circumstances. This doctrine that new conditions abrogate treaties and contracts is the great new evil to which the civilized world is now exposed. How can we meet it? How can we overcome it? Only by a process of education through suffering, by dire experience of the consequences of violating the sanctity of a contract, of disregarding the sense of international obligation, of failing to speak the truth and keep good faith. How long may this process of education or training be? Years, decades, generations, before the sense of international obligation and the sense of the sanctity of contract can be universal in the civilized world. Is this too despairing a statement ? Must we endure the present condition in Europe, until all its nations come to realize that there can be neither safety nor peace, unless built firmly on the general sense of truth, of obligation, of the sanctity of an agreement ?''

That historical “The” decision of the Supreme Court of Missouri will not down. Thought it is nigh ten years since it was made and though it has been laughed out of every court in the world

VOL. L.

20

as once raised beca omitted before "statue of the state.' Then is law

except one, it now and then is recalled and now and then is defended by Missouri lawyers, who feel that it is lese majeste at least to question the dictum of their highest tribunal. So the other day a Missouri circuit judge came to its defense in the columns of a Missouri law journal. He says: “Quite a storm was once raised because the Supreme Court reversed a case where the word 'the’ was omitted before 'state' in the closing of an indictment: ‘Again the peace and dignity of the state.' The phrase is so common, and it is so well knwn as a part of our organic law, that it is hard to conceive why any draftsman of an indictment should seek to change it unless he imagined he knew more about what the framers of the Constitution meant than they did themselves. As changed, the final clause read: “Against the peace and dignity of state.' What state? One or more? It might mean the entire nation. With that final “the' omitted the term is vague and without meaning. Certainly the constitutional provision leaves nothing for guesswork. But suppose the Supreme Court would hold the changing of the form worked no harm and did not inatter. The next draftsman might decide the whole thing was useless, and leave 'against the peace and dignity of the state' out of the indictment altogether.”

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ONE WONDERS what manner of man it was who, in the State Constitutional Convention was able to persuade his fellow members that it was essential to life, liberty and the pursuit of happiness and to a Republican form of government as well, that the written charge of a crime when brought before a court by the State prosecutor should conclude with a rhetorical flourish. He was doubtless a sharp lawyer whose livelihood and reputation were founded upon his ability to wear out the other side by tricktry and chicane, and who was able to boast in his community that he had defended a hundred murderers and not one of them had ever been hanged. A representative of this type of advocate half a century ago was that lawyer politician and representative in Congress for many years from a district only a few miles from where The Docket writes these pages, who at the conclusion of a trial for murder, as the foreman of the jury pronounced the word “guilty," turned to his client and found him in tears. “What are you crying about, Bill ?” he asked. “Oh! the jury says I must hang," replied the man. “Shut up, you fool," returned the lawyer; “why, don't you know the lawsuit has only just begun?” He had done his best by argument and oratory to persuade the twelve jurors that the prisoner was the victim of vengeance and falsehood and had failed. But all that had occurred during the long days of the trial were only to him the setting for the real battle. That was to come when the appellate court would be asked to spring the trap that he had set and to fire the mines

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that he had laid. To persuade twelve of his fellow citizens that his client was guiltless of a base and deliberate murder was impossible. But when he showed to the Supreme Court how all the i's had not been dotted and all the t's crossed in the indictment; how the seal of the court had been attached to the summons, not with the tongue but with a sponge; how the trial judge had used a steel pen instead of a quill one to record the conviction, then there would be an end to this absurd conviction of his client, and the whole proceedings-after the days spent in the examination of witnesses, the long speeches of counsel, the patient and laborious work of the judge, intent on doing justice, the anxious and faithful deliberation of the jurors, in their effort to find a righteous verdict, would blow up and the time and money which had gone into it all would disappear as suddenly and as completely as a peaceable merchantman on the high seas struck by a German torpedo. It is likely, however, that the sharp-witted lawyer did not persuade his colleagues at all or try to. They were able and sensible men in that early constitutonal convention—one has only to read their names to be convinced of this and they would not have been easily made to believe that such a clause had any place in the constitution of a sovereign State. Engaged in weightier matters, .this apparently innocent line was easily “slipped over'—to use the language of the professional politician—to become a part of that great mass of form and technicality which has for many decades blinded so many of our appellate judges, until they are unable to see the very form of Justice herself.

THE DECISION of the Supreme Court was based upon two grounds; first, that the prisoner had a right to know from the words of the indictment itself what State it was whose laws he had violated, and second, that the Constitution was the highest law, binding judges as well as laymen, and that no one was justified in acting contrary to the requirements of the Constitution. The first reason is absolutely silly; the second seems to rest on a rather solid basis, but loses its force when you examine it more closely and find that while the premises are sound, the conclusion is both illogical and unsound. One can hardly have the patience to even argue the court's reason, number one, for it recalls and has its counterpart only in those absurd and profitless controversies of the schoolmen of the middle ages where the subject of dissertation and polemic was whether the Devil was so large as to fill all space or whether he was so small that ten thousand of his kind could dance easily on the point of a needle.

JUST THINK of it! A man is charged with a brutal murder. The indictment begins with the formal venue, State of Missouri, Boone County. It then proceeds to say that on a certain day in the city of Columbia, in the county of Boone, in the State of Missouri, the prisoner murdered a certain named person (with great care it describes the weapons and the part of the body where the wound was given and the other technical requiremnts of an American indictment) and then concludes that it was done by him "against the peace and dignity of State.” He is tried and convicted. But when his case gets to the Supreme Court it is discovered that the scrivener in copying the draft of the indictment had left out the article “the.” “Oh, ho,” say the Supreme judges, “this will never do; this man is entitled by our humane laws, to be told whose laws he has broken, so that he can make a proper defense. It may be true that he has lived in Missouri all his life and knows perfectly well where he was when he committed the murder, but how can he be sure that he is charged with breaking the Missouri laws? How can he and his lawyers make up his defense when they may think all the time that he is going to be punished for breaking the laws of Vermont, or the laws of Russia, or the laws of Patagonia ? That will never do.” And so the proceedings are all set aside, and as after one reversal of a conviction, it is generally difficult to get the witnesses together a second time, the murderer is sent back into society unpunished and certainly a little amazed himself at the curiosities of the law. Is it any wonder that the people who do the voting at elections when they read nonsense like this, begin to rail against courts and lawyers ? The wonder really is that they do not go farther and sweep them both out of doors as the people in France did more than a century ago.

ON ITS FACE the second reason has some force. The constitution says that an indictment for a crime must end with the words, “against the peace and dignity of the state.” No one has any right to leave out any one of these words; the State's representative who is sworn to obey the law has no right to disobey it-to do so is a species of petit treason, so to speak. Granted. But if one of its agents is ignorant, or careless or disobedient, must the whole machinery of justice stop? If the law should enact that all court houses shall have tin roofs and a grafting contractor and cunning municipal authorities shall substitute pine shingles painted in imitation of tin, shall all the records that are stored in them be destroyed and the building razed to the ground ? If the law should say that the lamps in a city shall be lighted at 9 p. m. and they are not lighted until 10, shall everything that was done in that illegal hour, every contract that was made, every sale that is closed, every piece of work that is commenced or continued or completed, be declared null and void and be destroyed by sheriffs and marshals? Suppose a manufacturer of boots and shoes should have a rule that all the employes should enter the factory in the morning through a certain door and go out at night by a different door and after a large stock has been completed and ready for delivery, his manager should discover that this rule had not been obeyed and that some of his employes had come in and gone out of the wrong door. And suppose that this manager was so obsessed with the importance of that rule that he at once ordered all the goods to be destroyed and all the work to be done over again at the employer's expense. Would not the employer's feelings be about what are the feelings of the people today towards their upper servants—the judges of their courts? It is, after all, a question of the point of view. The modern English or continental lawyer would say: “Of course, we are not as jealous of our constitution as you Americans are of yours; we have no such apparent veneration for any human documents that exists. Our rulers or our Parliament drive their horses and carriages, so to speak through the constitution every day, and everything they do goes. Our courts are not superior to our representatives as yours are. But if we were as loyal to our constitution as you are to yours, it would never occur to us to punish breaches of it as you do; it would never suggest itself to us that the way to keep the constitution secure was to turn criminals loose upon the country. If we thought as you do, that for a citizen and especially an official, to disobey the supreme law was a sort of treason to his country it would certainly occur to us that the thing to do would be to punish the guilty officer and not the innocent public. Instead of opening the prison doors to your Missouri murderer we would have fined or imprisoned the man who was charged by the State with the duty to draw the indictment in the constitutional form, but failed in his duty and disobeyed his instructions. Nothing else than this would seem to us to be the proper way to have things done as they should be.” And this would be the answer of any sane man not wedded to an absolute system of Judicial Procedure.

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The three judges of the Supreme Court of Missouri who were responsible for this celebrated and ill-famed decision, were able, conscientous and patriotic men. One of them was “recalled” by an indignant public when he presented himself for re-election. The other two died before their terms were ended. All three have row gone over to the majority and THE DOCKET needs not the warning of the classic poet to speak no ill of the dead, for they were all his personal friends. But they belonged to a school of Jurisprudence which today is discredited and abandoned, nearly everywhere. To them, form was everything. If the judicial machine worked according to rule, it was not for them to interfere with results. They put law above justice; their professional bible

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