IN this _fin-de-sîècle_ time, society has grown liberal, it is said,
and yet he who thrusts a lever under sage customs, or he who points out
the vice of institutions long established, may deem himself happy if he
be permitted to strip against the duellist rather than the mob. Even
if one come new into the courts of the _literati_ with a cloak dyed a
different hue from his fellows, he will scarcely have passed the doorway
ere the taunting challenge, “Do you fight, my lord?”
The author, in a previous volume entitled _The Strange Schemes of
Randolph Mason_, pointed out certain defects in the criminal law, and
demonstrated how the skilful rogue could commit not a few of the higher
crimes in such a manner as to render the law powerless to punish him.
The suggestion was, it seems, considered startling and the volume has
provoked large discussion. A few gentlemen of no inconsiderable legal
learning, and certain others to be classified as moral reformers,
contended that the book must be dangerous because it explained with
great detail how one could murder or steal and escape punishment. If the
laws were to be improved, they said, “would it not be more wisely done
by influencing a few political leaders?”
While such a criticism does not come from any considerable number of
authorities, it has been honestly made and is entitled to consideration.
The vice of it lies, it seems to me, in a failure to grasp the actual
nature of our institutions. It is a maxim of our system that the law
making power of the state rests in the first instance with the people of
the state. This power, for the purpose of convenience, is delegated to
certain selected persons who meet together in order to put into effect
the will of the people.
The so-called law-makers are therefore not law-makers at all, in the
sense of being originators of the law; they are rather agents who come
up from their respective districts under instructions. Such agents are
simply temporary representatives of the citizens of their respective
districts, directly responsible to them and charged with no duty other
than that of putting their will into effect. The agent or delegate
should therefore approach very conservatively any matter upon which the
will of his constituency has not been satisfactorily determined. It is,
then, apparent that the influence which makes or which alters the law
is a force exerted from without. No change in the law can be properly
or safely brought about except through the pressure of public sentiment.
The need for the law must be first felt by the people and the demand for
it made before the legislator is warranted in acting. The representative
would otherwise become a presumptive usurper, afflicting the people
with statutes for which there was no public demand; and such laws, so
improperly obtained, would be without the support of public sentiment
and would be liable to repeal.
Hence it is entirely clear that if the existing law prove to be unjust
or defective, the people must be brought to see and appreciate such
injustice or inadequacy and to demand the requisite modification.
This contention can, as it seems to me, not be gainsaid. It is
respectfully urged that no other method of securing wise changes in
the law can be properly pursued under democratic institutions. To hold
otherwise is to take issue with the wisdom of democracy itself, and with
so rash a champion the writer has no spear to break. Indeed, he makes
this explanation with immense unwillingness, as he feels that he should
not be required to defend a truth so evident. It is like demonstrating
gravely that the earth is round and that sun light is an energy.
Yet he is advised that attention should be called to this matter, lest
the thoughtless condemn upon a hearing _ex-parte_. Indeed, even after
the punishment of _la peine forte et dure_ is gone out these many
hundred years, the good citizen will hardly hold that one guiltless who
stands dumb while hidden evils assail. If men about their affairs were
passing to and fro across a great bridge, and one should discover that
certain planks in its flooring were defective, would he do ill if he
pointed them out to his fellows? If men labored in the shops and traded
in the market confident in the security of their city's wall, and one
should perceive that the wall was honeycombed with holes, could he stand
dumb and escape the stigma of being a traitor? The law makes little
difference in the degree of moral turpitude between the _suppressio
veri_ and the _suggestio falsi_. Both are grievous wrongs. The duty
of the individual to the state is imperative. He cannot evade it and
continue to regard himself as a worthy citizen.
Is there not in all this criticism a faint suggestion of the men who
“darken counsel by words without knowledge”?
Lycurgus taught the laws to the people, Solon taught the laws to the
people. The Roman law provided for a final appeal from the consul to
the people, and the very essence of republican institutions lies, as
has been said, in a recognition of the people as the source of the
law-making power. If the law offers imperfect security and is capable of
revision, the people must be taught in order that they may revise it. If
it offers insufficient security and is incapable of revision, then the
people must be taught in order that they may protect themselves. This
conclusion is irresistible. To counsel otherwise is to share in the
odium of that short-sighted ambassador who urged upon Pericles the
wisdom of reversing the tablet upon which the law was written in order
that the people might not read the decree.
Surely, then, he who points out the vices of the law to the people
cannot be said to do evil, unless the law of the land is to be made by
a narrow patriciate sitting, like the Areopagus of ancient Athens, with
closed doors.
That yesterday in which the enemies of society plied their craft by
means of the jimmy and the dark lantern is now almost entirely past. The
master rogue has discovered, with immense satisfaction, that the labor
of others may be enjoyed, and the results of their labor seized and
appropriated to his uses, without thrusting himself within the control
of criminal tribunals.
Wise magistrates, laboring for the welfare of the race, have been
pleased to write down what should be done and what should not be done,
and have called it “law.” The citizen, having no time to inquire, has
gone about his trade under the impression that these rules were offering
ample protection to his person and his property. But the law, being
of human device, is imperfect, and in this fag end of the nineteenth
century, the evil genius thrusts through and despoils the citizen,
and the robbery is all the more easy because the victim sleeps in a
consciousness of perfect security.
The writer has undertaken to point out a few of the more evident
inadequacies of the law and a few of the simpler methods for evasion
that are utilized by the skilful villain. It must be borne in mind,
however, that more gigantic and more intricate methods for evading the
law and for appropriating the property of the citizen are available.
The unwritten records of business ventures and the reports of courts
are crowded with the record of huge schemes having for their ultimate
purpose the robbery of the citizen. Some of these have been successful
and some have failed. Enough have brought great fortunes to their daring
perpetrators to appal that one who looks on with the welfare of human
society at heart.
The reader must bear in mind that the law herein dealt with is the law
as it is administered in the legal forms of his country, in no degree
changed and in no degree colored by the imagination of the author. Every
legal statement represents an established principle, thoroughly analyzed
by the courts of last resort. There can be no question as to the
probable truth of these legal conclusions. They are as certainly
established as it is possible for the decisions of courts to establish
any principle of law.
The reader is reminded that the schemes of skilled plotters, resorted
to for the purpose of defeating the spirit of the law, are, for the most
part, too elaborate and too intricate to be made the subject of popular
discussion. An attempt to explain to the but half-interested layman
plots of this character would be as vain as an attempt to demonstrate
an abstract problem in analytical mechanics. The knaves who have been
pleased to devote their energies and their capacities to problems of
this nature are experts learned and capable, and against these the
average man of affairs can defend himself but poorly. He may be warned,
however, and the author will have accomplished his purpose if he
succeeds in identifying the black flag of such pirate crafts.
In the present volume he has deemed it wise to continue to utilize as
his central figure the lawyer, Randolph Mason,--a rather mysterious
legal misanthrope, having no sense of moral obligation, but learned in
the law, who by virtue of the strange tilt of his mind is pleased to
strive with the difficulties of his clients as though they were mere
problems involving no matter of right or equity or common justice.
This emotionless counsellor has already been introduced to the public.
He has been described as a man in the middle forties. “Tall and
reasonably broad across the shoulders; muscular, without being either
stout or lean.” His hair was thin and of a brown color, with erratic
streaks of gray. His forehead was broad and high and of a faint reddish
color.
His eyes were restless, inky black, and not over large. The nose was big
and muscular and bowed. The eyebrows were black and heavy, almost bushy.
There were heavy furrows, running from the nose downward and outward to
the comers of the mouth. The mouth was straight, and the jaw was heavy
and square.
“Looking at the face of Randolph Mason from above, the expression in
repose was crafty and cynical; viewed from below upward, it was savage
and vindictive, almost brutal; while from the front, if looked squarely
in the face, the stranger was fascinated by the animation of the man.
and at once concluded that his expression was at the same time sneering
and fearless. He was evidently of Southern extraction and a man of
unusual power.”
This counsellor, keen, powerful, and yet devoid of any sense of moral
obligation, is possessed of this one idea---that the difficulties of men
are problems and that he can solve them; that the law, being of human
origin, can be evaded; that its servants, being but men like the others,
may be balked, and thwarted and baffled in their efforts at a proper
administration of this law.
It is the age of the able rogue, and, in examining his rascally schemes,
the writer has finally come to believe that the ancient maxim, which
declares that the law will always find a remedy for a wrong, is, in this
present time of hasty legislation, not to be accepted as trustworthy.
_(See the learned opinion of Mr. Justice Matthews in the case of Irwin
vs. Williar, no U. S. Reports, 499; the case of Waugh vs. Beck, 114 Pa.
State, 422; also Williamson vs. Baley, 78 Mo., 636; 15 B. Monroe, Ky.
Reports, 138. See also, in Virginia, the case of Machir vs. Moore, 2
Grat., 258.)_