more settled localities, court proceedings and rulings were governed by precedents and legislative enactments; throughout the mining region, or other distant or thinly populated districts, common sense took the place of common law, while statute-books and precedents were flung to the wind as unworthy a sane man's consideration. Such equipage might do for jurists like "that bloated philosopher, who mistook declamation for eloquence, and affectation for feeling as Lamartine said of Raynal; but then if they could not reach the truth without the aid of books and book-learning, they could not with them. Away from their bit and harness, these jurists of all-dominating rules and statutes were like that blindly wandering wisdom which looks one way and walks another, and when asked a question, and no books are at hand, nil dicit, or like Ignáro, foster-father of Argoglia, answers "I cannot tell."

And they were right. Simple and ignorant judges of simple differences between ignorant men, the simplest and most direct method was the best for them. All the while, be it remembered, these uncouth jurists were in practical sagacity no whit behind their more intellectually cultured brethren of the woolsack. It was a broad unfolding in the evolution of jurisprudence, that such an element as that which infested the foothills from 1848 to 1856 should be so easily and so thoroughly kept in order by their own regulations, carried out by men chosen from among their own number, and with little aid from statutory enactments.

As in religion so in jurisprudence, meaningless forms are becoming obsolete, and substance is the thing considered. Much superfluous tackling has already fallen from court proceedings, and there is more which might profitably be stripped from them; that the well-appointed library of an attorney in fair practice must number its volumes by tens of thousands, and that rulings and decisions must be compiled from those who sat and judged thirty or three hundred

FORMS AND PRECEDENTS.

587

years ago, suggests a further advancement in this direction. What we want is less precedent; in religion less of Patristic dogmas, and in law less reverting to the past for the solution of questions which, if we have availed ourselves of our advantages we should understand better than our forefathers.

Knowledge, either in law or elsewhere, is not alone a looking back, but an eternity of inquiry concerning not only what has been but what is and shall be. When we can no more conceive of a boundary to knowledge than we can conceive of a boundary to space, it is not wise in us to revivify by all our powers dead or dying formulas; for if such a course does not lead to the nihilism of Georgius of Leontini, there is at all events but little progress in it. This same Georgius after all is not altogether wrong in his affirmation that nothing is, or if it be that it cannot be known. Our knowledge comes from nothing and ends in nothing. "Philosophy begins in wonder," says Plato, "for Iris is the child of Thaumas." Nature-worship is the mythology of science, and the myths of Greece reduced to system in the writings of Hesiod and Homer enfolded the germ of all that followed. The pursuit of knowledge is a journey from the sublime to the ridiculous. The end of knowledge is to plunge us yet deeper in the gulf of ignorance. The progress of religion is from the mighty and majestic gods of Homer to the buffoons burlesqued by Lucian; from the deities of savagism, moving clouds, speaking thunder, smiling sunshine and soft kissing breezes, through monotheism and christianity to the infidelity generated by science. Science in its turn on every side soon strikes the unknowable, and throws back the inquirer after ultimate truth upon something akin to nihilism. In the progress of literature, as clsewhere, we see the same. principle manifest. In its earliest stages it assumes the form of epic or lyric poetry, of tragedy and historic narrative-the bloody and the real; later, with

a higher intellectuality, we have comedy and romance -the contemplative and ideal.

Now the day is coming when law shall find wisdom in less learning; when from the mountains of ancient and accumulative legal lore, as from the Cretan labyrinth for the imprisonment of the Minotaurs, the thread of simple justice shall be followed until the searcher for the direct path shall be brought out into the clear light of open day. Then it will be manifest to all that between the natural rights of man as arrived at by the gold-diggers, and right as proclaimed by the law and taught by tribunals, the difference is less real than pretended; that the justice of the miners, like their gold, though it had not the statutory stamp upon it was none the less pure metal.

Much truth is treasured up in proverbs and legal maxims, and yet what oceans of absurdities are swallowed when codified under the formulas of truth! There are few of them but would fit mankind as well reversed, that is, if made to say exactly the opposite of what they do say. I have often followed as a pastime this reversing of maxims, and the effect sometimes is marvelous. What matchless subtlety of thought do we find in words thus brought out, such as, An honest god the noblest work of man, Policy is the best honesty, and a host of others; while for the multitude of such meaningless expressions as "Live each day as though it were your last," we find by allowing the mind to dwell upon it for a moment that not the thing said was meant at all, but something else. No one could make a greater mistake than by following literally such injunctions. But they are not intended to be taken literally; all that is meant is to live well every day. Then would it not be better to say so, and not to elevate into a maxim, and immortalize in the name of golden truth, brazen absurdity. Better the sage remark of the crank, Don Quixote, "Everyone is like everybody else, only a great deal

worse"; or that of any one of the several classes in society, each of which has a series of formal expressions containing little or no meaning.

Thus we see there is much in forms and precedents and maxims which, if blotted from the memory of man, would leave the course of justice more clear and logical. There is much cumbersome machinery in court procedure which retards rather than assists in protecting the innocent and punishing the guilty.

It is undoubtedly true that too often in our courts, where reason and sound argument should be the only weapons, coarse expletives and physical violence have been employed, but happily the logic of brute force is gradually becoming unfashionable.

During the time when vigilance committees were a necessity, it is a most significant fact that besides the lower class of evil-minded persons marshalled on the side of law and order were all licentious judges, stabbing jurists, duelling editors, and fighting lawyers. Make out lists of the individual members of the opposing factions and you will find with singular uniformity one composed of persons quietly disposed, honest, industrious, intelligent, and virtuous, and the other of quarrelsome, irate, waspish work-despisers. Any one who will go carefully over the first seven years of the annals of the state, as recorded by the leading writers of the time, will find it almost invariably the case, that those officials prominent in shooting-scrapes, those lawyers fined most frequently for drawing deadly weapons in courts, those limbs of the law who of all others oftenest broke the law, those whom only the law was made to punish-this class was usually loudest in support of law. And why was this? Briefly, for two reasons. these manipulators of the law could the more easily shelter their misdeeds under the law; and secondly, the conflict, on one side at least, had degenerated from one for principle to one politically, sectionally, and socially partisan. Some were made to govern,

First,

others to be governed, was the doctrine held by law and order.

In a few instances, before the year 1850 had expired, justices of the peace and judges had been impeached and driven from their seats by the people. But compared with those who at this time were accustomed, either openly or in secret, to take illegal fees, to extort, accept bribes, or otherwise violate their oath of office, the number punished was insignificant. The money-makers had no time to chastise their criminals, to say nothing of judges. True, there was the short, quick way, the only practicable way in ordinary cases; but then they did not exactly like to hang judges, "as it might be ag'in law, like," though they often threatened to do so.

In the first number of the California Star, published at Yerba Buena January 9, 1847, are the following pertinent remarks on the custom of smoking in court: "Among the many good rules adopted by our late alcalde, and broken by the present one-not to mention the high-handed violation of the dearest rights of freemen, a refusal of trial by jury, of which hereafter ---is that of smoking in the court-room, and this, too, practised almost solely by the judge and his clerk, who are more than half their time puffing forth clouds of smoke from their 'long nines,' greatly to the annoyance of persons having business in court, particularly those not in the habit of smoking. Besides, I would ask, does it look very dignified for a judge to be delivering a decision in an important case with a cigar in his mouth, stopping every half minute in his address to give a puff or two?"

The following scene in court, which happened at San Francisco in February 1848, is but one of a class. Two individuals met in a liquor saloon, drank, quarrelled, fought. One received a stab in the breast. The other was arrested by a posse of citizens, and taken