Part 5

“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.

“'No people,' declares Chancellor Kent in his _Commentaries_, 'are bound or ought to enforce or hold valid in their courts of justice any contract which is injurious to the public rights or offends their morals or contravenes their policy or violates a public law.' Hence contracts having an illegal or immoral consideration, or tending to the violation of law or the debauching of public morals, are held to be _contra bonas mores_, and are void.

“It is said that the object of all law is to suppress vice, and to promote the general welfare of society, and it does not give its assistance to persons to enforce a demand originating in their breach or violation of its principles and enactments. It is not necessary that the law expressly prohibit or enjoin an act. It may impliedly prohibit or enjoin it. In either case a contract in violation of its principles is void under the wholesome maxim _ex turpi causa non oritur actio_.

“It may happen, and, indeed, frequently does happen, that the individual suffers great hurt from this sweeping policy of the law, but it is held that the good of the commonwealth rises above the mere benefit of the individual citizen, and that where the welfare of the whole of society is involved, the law will not pause to consider the injury entailed upon the mere unit. Hence the policy of government in the exigencies of war, when protection must be had against violence, and the policy of government in the peaceful administration of the law, when protection must be had against vice.

“Thus gambling, wagering, and all gambling and wagering contracts and transactions are illegal as against public policy, since they are repugnant to the well-being of society, fraught with vice, pregnant with demoralization, and corrupting alike to the youth and to the aged, as they inspire a hope of reward without labor.

“It is significant that in matters of this nature human society has been progressive. Under the common law of England wagers were not unlawful or unenforceable, but the statute of 9th Anne followed and altered the common law, and the statutes of 8th and 9th Victoria altered it yet farther, and in the United States every separate Commonwealth has its respective statute striking at this vice.

“I think it will not at this day be denied that all transactions in stocks, by way of margin, settlement of differences, and payment of gains or losses, without intending to deliver the stocks, is a gambling or wagering operation which the law does not sanction, and will not carry into effect; and it has been held in the Supreme Court of the United States in the case of Irwin vs. Williar, 'If under the guise of a contract to deliver goods at a future day the real intent be to speculate in the rise or fall of prices, and the goods are not to be delivered, but one party is to pay to the other the difference between the contract price and the market price of the goods at the date fixed for executing the contract, the whole transaction is nothing more than a wager, and is null and void.' And that 'Generally in this country wagering contracts are held to be illegal and void as against public policy.'

“Indeed the courts of the land have gone to the extremity of denouncing in no uncertain terms the dangerous character of these illegal ventures. Judge Blauford, in the case of Cunningham vs. The National Bank of Augusta, in speaking of these transactions termed 'futures,' declares: 'If this is not a speculation on chances--a wagering and betting between the parties, then we are unable to understand the transaction. A betting on a game of faro or poker cannot be more hazardous, dangerous, or uncertain. Indeed it may be said that these animals are tame, gentle, and submissive compared to this monster. The law has caged them and driven them to the den. They have been outlawed; while this ferocious beast has been allowed to stalk about in open mid-day with gilded signs and flaming advertisements to lure the unhappy victim to its embrace of death and destruction. What are some of the consequences of these speculations in 'futures'? The faithful chroniclers of the day have informed us, as growing directly out of these nefarious practices, that there have been bankruptcies, defalcations of public officers, embezzlements, forgeries, larcenies, and deaths. Certainly no one will contend for a moment that a transaction fraught with such evil consequences is not immoral, illegal, and contrary to public policy.'

“In so far as this doctrine is concerned with the case at bar, it is certain that the parties understood and intended that the money loaned should be used for the purpose of engaging in an illegal speculation in oil,--'a gamble in oil,' as it is termed in the agreement, and that such gambling transactions are against public policy and the law of the land. But it is contended by learned counsel that all this can have no bearing upon the case at bar for the reason that in the cases heretofore cited announcing these conclusions of law, the litigants were the parties who dealt with or for each other, and were the immediate parties engaged in an unlawful gambling venture, and the ones to gain or lose directly by the venture, and not a mere stranger who loaned money to another to engage in such transactions, and having but an undetermined interest in the result; and that the law will not lend its aid to a further wrong. The defendant having committed one wrong cannot be permitted to use his first wrongful act as an instrument whereby to effect a second wrongful act.

“The objection is ingenious, but I judge fully met by the declaration of Lord Mansfield in Holman's case: 'The objection,' said the learned judge, 'that a contract is immoral or illegal as between plaintiff and defendant, sounds at all times very ill in the mouth of the defendant. It is not for his sake, however, that the objection is allowed, but it is founded on the general principle of policy which the defendant has the advantage of, contrary to the real justice as between himself and plaintiff, by accident, if I may so say. The principle of public policy is this: _ex dolo malo non oritur actio_. No court will lend its aid to a man who founds his cause of action upon an immoral or illegal act. If from the plaintiff's own statement or otherwise the cause of action appear to arise _ex turpi causa_, or the transgression of a positive law of this country, then the court says he has no right to be assisted. It is upon that ground the court goes, not for the sake of the defendant, but because it will not lend its aid to such a plaintiff.'

“This claim of the plaintiff to this action is unsound for the further reason that any promise, contract, or undertaking the performance of which would tend to promote, advance, or carry into effect an object or purpose which is unlawful, is itself void and will not maintain an action. The law which prohibits the end, will not lend its aid in promoting the means assigned to carry it into effect. Nor is it possible for an act contrary to law to be made the basis of a contract enforceable in courts of law. Hence when one lends money to another for the express purpose of enabling him to commit a specific unlawful act, and such act be afterwards committed by means of the aid so received, the lender is a _particeps criminis_, and the law will not aid him to recover money advanced for such a purpose, and much less would it assist him, if, as in this case he retained an interest in the result of the venture.”

It was very unusual for counsel to interrupt the judge in the delivery of his opinion, but at this point the attorney for Martin arose.

“If your honor please,” he said, “this court is taking away the remedy of the plaintiff, and permitting the wrong to stand. Does this court reverse the ancient doctrine upon which the theory of human justice has its eternal basis, the ancient doctrine that the law will always provide a remedy for a wrong?”

The faintest shadow of a smile flitted over the judicial face.

“That sage maxim: '_lex semper debit remédiant_,'” answered the judge, “is a gigantic error couched in very good law Latin. The motion to exclude the evidence is sustained, and the jury will find a verdict for the defendants.”

X

THE Governor's machine marched gravely out of the Circuit Court of the United States and down the wide steps, the Major leading, the Executive following second, and the Honorable Ambercrombie Hergan bringing up the rear, every man as silent and as solemn as a Japanese diplomat. The machine passed through the great arched doorway and directly across the street to “The Happy Maria” saloon, an institution with a variegated past. The machine filed in through the door and lined up before the bar as mysteriously as a country delegation in a caucus.

The Bartender of “The Happy Maria” was a lame actor from St. Louis. When he turned and beheld the solemn array, he stepped back and tapped his forehead tragically with his fingers.

“Ha!” he muttered, “it is Ulfius and Brastias and Sir Bedivere.”

To this no response was made, except that the Major raised his hand and pointed to the bottle of “Dougherty” reposing on the second shelf beside the box of “scrap” and the proprietor's pistol-belt. The bartender hurried forward, took down the bottle, placed three little glasses on the bar and began to fill them. When he came to the third glass, he paused and set down the bottle. A puzzled expression gathered on his face. He thrust his forefinger into his mouth and began to lisp:

“Be there two or be there three

In our king's companee?”

The Major turned just in time to catch a glimpse of the Governor as he vanished in a telegraph office next door; then he swung around toward the barkeeper with the dramatic abandon of a professional at a benefit.

“Pour on, good seneschal,” he cried; “it is the man who would be married. He hastens with glad tidings to the well beloved. He will return.”

_(See the famous opinion of Henry St. George Tucker, President of the Supreme Court of Virginia, in the leading case of Gallego's Executors vs. Attorney General, 3 Leigh, 450; also the opinion of John Marshall, Chief Justice of the United States, in the case of the Trustees of the Philadelphia Baptist Association el at. vs. Hart's Executors, 4 Wheaton's U. S. Reports, 330; also Knox vs. Knox's Executors, 9 W. Va., 125; 2y W. Va., 109, and cases cited.)_

MRS. VAN BARTON

I

ALL this,” said Randolph Mason,” is the veriest nonsense.”

The younger Mrs. Van Bartan straightened up in her chair and looked sharply at the counsellor. She was a woman of magnificent presence, with a great fleece of yellow hair, fine eyes, and regular, clear-cut features.

“Do you mean that it is not the truth?” she asked.

“Half truth,” responded Mason.

“Then,” said the woman, smiling, “it is only half nonsense.”

“Madam,” said Randolph Mason, “if you desire my aid, you must explain this entire matter. I do not choose to guess riddles.”

“I have told you,” began the young woman, slowly, “that my husband and myself reside with his mother in a certain city of the Virginias; that his father is dead, and, by his will, left his entire property to the elder Mrs. Van Bartan--my mother-in-law; that was all true.”

The counsellor nodded.

“The other part,” she went on, “I was trying to put into a 'hypothetical case '--is n't that what you call it?”

She hesitated for a moment.

“It is hard to tell, and I was only trying to save myself, but I suppose the surgeon is quite useless if the wound is not fully revealed. If you will listen to me I will explain. It is hard to tell, and it hurts, but everything is at stake, and if I lose now I lose everything. It will simply mean that I have made sacrifice after sacrifice for nothing at all. One shrinks from putting one's heart upon a dissecting table where the valves may be pinned back and pried into with the point of a scalpel, and so one struggles with a hurt until it finally aches so bitterly that the expert must be had. Then one goes to the surgeon or the priest or the lawyer, and takes an anaesthetic while he cuts it out.”

“Madam,” said Randolph Mason, “you talk like a diplomat: you say nothing at all.”

The younger Mrs. Van Bartan unbuttoned her coat and threw it back with the air of one who has ultimately decided to keep nothing in reserve.

“I have been married three years,” she began, “my father's name is Summers. In the good days of Virginia our family was wealthy, but of late years we have met with one disaster after another until the family became very poor, and the effort to maintain an appearance of respectability was a nipping struggle indeed.

“About this time the coal industries of West Virginia began to develop, and our city became a manufacturing centre. This brought in many Eastern capitalists, among them Michael Van Bartan, who established great iron mills, out of which he made a vast fortune. Shortly thereafter he died, leaving his widow and one son, Gerald Van Bartan.

“This woman I have never quite understood. After the death of her husband, she maintained their country place in almost profligate magnificence, but she has always seemed terribly disappointed in her son. He was a good, easy-going fellow, and his mother, an ambitious, restless woman, had great plans for his future. But, failing that, and being a person of shrewd instinct, she set about finding for him an ambitious wife, who would probably be able to succeed where she had failed. But while the mother was striving to select a suitable woman for her purpose, the son paid court to me,--and I married him.”

The young woman paused for a moment, and the lines of her mouth hardened. Then she went on:

“He was not quite the person with whom I had hoped to spend my life, but he had wealth, and we were so miserably poor,--and, I judge after all, one is never permitted to do just what one wishes in this weary world. This marriage was a bitter disappointment to Mrs. Van Bartan, but she was a woman with the resources of an empress. She came at once to me, and, with the kindest and most gracious courtesy, welcomed me as her daughter, and began at once to shower upon me the most substantial evidences of her good will. We were taken to live with her at the country place, and everything was done that a shrewd woman could imagine to bring me completely under her influence, and, through me, to move my husband to the effort which she desired. But it was all an utter failure.

“I appreciated thoroughly the incapacity of Gerald Van Bartan, and said as much to his mother. I went deliberately to her and pointed out how very vain her ambition was, and how certainly it must come to nothing. I said how difficult it was for men to lift themselves even the least bit higher than their fellows; how it required years of labor and selfdenial and courage. I reminded her that my husband had not one of the qualities necessary for such work; that he was not industrious, and not ambitious she knew well; that the habits of the man had been formed, and this work could not be now undone.

“Then I blundered like a fool. I said that wealth had caused these habits to become fixed, and that we must accept him as his luxurious life had made him; that if he had been thrown out to struggle with poverty, some qualities might have been developed, but that he had never been forced to feel the necessity for an effort, and consequently he had never called his faculties into use, nor could he now since the necessity did not arise. I begged her to abandon the effort as vexatious and entirely hopeless.

“To all this the elder Mrs. Van Bartan listened attentively and made no comment. When I had finished, she laughed, and said that I had entirely misapprehended her intentions toward her son; that she had no object in life but to make us as happy as it were possible to do, but that one could not tell what conditions might arise, and she had wished simply to put her son in a position to care for himself and me, if it ever should be necessary. Then she stroked my hair, as she might have done to a child, and bade me not worry over trifles. I now congratulated myself that the matter was finally settled, but I was fearfully wrong. I had read this remarkable woman poorly. Although again beaten, she was unconquered, and she determined upon a final desperate move. Perhaps my foolish prattle, furnished the suggestion, but it is rather more probable, I think, that her master mind evolved the plan out of what she considered a desperate condition.”

The woman's face was now grave, and she seemed deeply in earnest.

“It was the plan of Mrs. Van Bartan to convince my husband and myself that future poverty was impending, but just how to make this impression strongly probable, was a matter of great difficulty, and one which she appreciated fully. In order to do this effectually, it was necessary for her, in some manner, apparently to dispose of her property, and at the same time actually to retain it in possession.

“This was a difficult problem, but difficult problems were not appalling to Mrs. Van Bartan, and she finally determined upon this shrewd scheme. She would make a will, leaving her entire estate at her death to the church of which she was a member, and entirely disinheriting my husband. This will could have the effect she desired, and at the same time leave her unhampered in the use of her property, and free to destroy this will or make another at her pleasure. This is now her plan. How I have discovered it is not of importance, since it is a part of her plan in this matter to have me suspect her intention and finally to have me believe that she has decided to cut us off without a dollar. Having determined upon this move, she will carry it through with the skill of a master strategist. She will have the paper drawn by her legal adviser in the presence of witnesses; she will declare her intention to the most substantial people of our city, and will take good care to see that her act is made known through the most reliable sources. There will be no blunder anywhere,--Mrs. Van Rartan does not blunder.”

“Has this will been drafted?” asked Randolph Mason.

“No,” replied the young woman, “but it will be made soon. Mrs. Van Bartan is now preparing public opinion for her act. She is far too wise to hurry.”

“I see no danger in all this,” said Mason, “since it is not this woman's intention to really disinherit her son. Ultimately she will destroy this document or make another.”

“But,” said the young woman, bending forward in her chair, “Mrs. Van Bartan is afflicted with an aortic aneurism, and may drop dead at any moment. This she refuses to believe, and although she has been examined by celebrated specialists, she stoutly asserts that her health is as good as it ever was in her whole life.

“Now suppose she makes this will and dies suddenly without having an opportunity to make another. What then? Her intention will not help us. This will holds, and we are left entirely without a dollar in the world. Now, what am I to do to save us? It is of no use to go to Mrs. Van Bartan. She is an iron woman. She has her plan, and Heaven could not change her in the least. I must do something. It all depends on me, and I don't know which way to turn. You must show me some way; you must do something.”

Randolph Mason turned around in his chair and looked squarely at the young woman.

“Madam,” he said, “you have neglected to tell me the most important matter.”

“Oh, no, sir,” responded the younger Mrs. Van Bartan, “I have told you everything.”

“By no means,” said Mason. “You have said that Mr. Van Bartan is not the man with whom you had hoped to spend your life. Who is that man?”

The young woman looked down at the floor and was silent.

“Well,” she said, “I don't know that I meant quite that. I was meaning, you know, that there were other considerations moving me to this alliance beyond mere affection. I did not say that I loved some one else, did I? Did I say I loved some one else?”

“You evade,” said Mason, bluntly. “It is the weakling's method of confession, and as well the fool's method.”

The blood came into the face of the younger Mrs. Van Bartan, and she looked up resolutely.

“You don't spare me at all,” she said, bitterly. “You pry out everything, even the very heart linings. Suppose I did love some one else, what has that to do with this matter? That is all over and past and gone. Can't I permit it to sleep and be forgotten? Suppose there was another man? Suppose there is now? Must I empty out his heart too? Can't I spare him? Can't I leave him out of this?”

“I am waiting, madam,” said Mason, quietly.

The young woman passed her hand downward over her face, as though to remove something that was clinging to her.

“If you must know,” she said slowly, “his name is Dalton, Robert Dalton, a member of the law firm of Carpenter, Lomax, & Dalton, of our city. He is said to be an able lawyer. He is the elder Mrs. Van Bartan's legal adviser, but I have no right to tell you all this. It is unjust to him. and unjust to me, and unfair to us all.”

“And he still loves you?” said Mason, with the blunt indifference of a surgeon who thrusts his thumb into a wound.

The young woman threw back her head. “You are brutal,” she cried, “to ask such a question, and I should be a fool, a miserable, contemptible fool if I should answer.”

“But you have answered it, madam,” replied Randolph Mason.

The younger Mrs. Van Bartan covered her face with her hands, and began to sob. The counsellor sat and watched her, as an expert might watch an intricate piece of machinery that he was testing. There was no emotion of any sort visible in his face--nothing at all, except the intense interest of the expert.

Presently Mason leaned back in his chair. The result was evidently satisfactory.

“Is this man married?” he asked.

The woman did not answer. She simply pressed her hands tighter against her face. The counsellor waited for a few moments. Then he repeated:

“Is this man married?”

The woman's hands trembled violently. “No,” she sobbed, “and he never will be.” The lines in the face of Randolph Mason grew deep and resolute as one has seen the lines in the face of a great physician when, in some desperate case, he finally turned from the bedside of the patient in order to write the prescription upon which he had decided.

“Madam,” he said, in a voice that was firm and admitted of no protest, “this man Dalton is perhaps a person of some learning. Since he is your mother-in-law's legal adviser, he will have the matter in his hands. He is under your influence. Could a problem be more simple? You have but to go to him and say what you have said to me. He will know what to do.”

She dropped her hands in astonishment.

“Go to him? Go to him?” she repeated.

“Yes,” said Mason, “and tell him the truth,--and wait.”

“But,” began the younger Mrs. Van Bartan, “how could he help me? What could----”