By Advice of Counsel
decorously with a filigree napkin.
"Dear lady," he remarked with conviction, "in such distressing
circumstances I have no hesitation whatever in advising you to consult
Mr. Ephraim Tutt."
* * * * *
"I have been thinking over what you said the other day regarding the
relationship of crime to progress, Mr. Tutt, and I'm rather of the
opinion that it's rot," announced Tutt as he strolled across from his
own office to that of his senior partner for a cup of tea at practically
the very moment when Mr. Hepplewhite was advising Mrs. Wells. "In the
vernacular--bunk."
"What did he say?" asked Miss Wiggin, rinsing out with hot water Tutt's
special blue-china cup, in the bottom of which had accumulated some
reddish-brown dust from Mason & Welsby's Admiralty and Divorce Reports
upon the adjacent shelf.
"He made the point," answered Tutt, helping himself to a piece of toast,
"that crime was--if I may be permitted to use the figure--part of the
onward urge of humanity toward a new and perhaps better social order; a
natural impulse to rebel against existing abuses; and he made the claim
that though an unsuccessful revolutionary was of course regarded as a
criminal, on the other hand, if successful he at once became a patriot,
a hero, a statesman or a saint."
"A very dangerous general doctrine, I should say," remarked Miss Wiggin.
"I should think it all depended on what sort of laws he was rebelling
against. I don't see how a murderer could ever be regarded as assisting
in the onward urge toward sweetness and light, exactly."
"Wouldn't it depend somewhat on whom you were murdering?" inquired Mr.
Tutt, finally succeeding in his attempt to make a damp stogy continue
in a state of combustion. "If you murdered a tyrant wouldn't you be
contributing toward progress?"
"No," retorted Miss Wiggin, "you wouldn't; and you know it. In certain
cases where the laws are manifestly unjust, antiquated or perhaps do not
really represent the moral sense of the community their violation may
occasionally call attention to their absurdity, like the famous blue
laws of Connecticut, for example; but as the laws as a whole do
crystallize the general opinion of what is right and desirable in
matters of conduct a movement toward progress would be exhibited not by
breaking laws but by making laws."
"But," argued Mr. Tutt, abandoning his stogy, "isn't the making of a new
law the same thing as changing an old law? And isn't changing a law
essentially the same thing as breaking it?"
"It isn't," replied Miss Wiggin tartly. "For the obvious and simple
reason that the legislators who change the laws have the right to do so,
while the man who breaks them has not."
"All the same," admitted Tutt, slightly wavering, "I see what Mr. Tutt
means."
"Oh, I see what he means!" sniffed Miss Wiggin. "I was only combating
what he said!"
"But the making of laws does not demonstrate progress," perversely
insisted Mr. Tutt. "The more statutes you pass the more it indicates
that you need 'em. An ideal community would have no laws at all."
"There's a thought!" interjected Tutt. "And there wouldn't be any
lawyers either!"
"As King Hal said: 'The first thing we do, let's kill all the lawyers,'"
commented Mr. Tutt.
"Awful vision!" ejaculated Miss Wiggin. "Luckily for us, that day has
not yet dawned. However, Mr. Tutt's argument is blatantly fallacious. Of
course, the making of new laws indicates an impulse toward social
betterment--and therefore toward progress."
"It seems to me," ventured Tutt, "that this conversation is more than
usually theoretical--not to say specious! The fact of the matter is that
the law is a part of our civilization and the state of the law marks the
stage of our development--more or less."
Mr. Tutt smiled sardonically.
"You have enunciated two great truths," said he. "First, that it is a
'part'; and second, 'more or less.' The law is a very small part of our
protection against what is harmful to us. It is only one of our
sanctions of conduct, and a very crude one at that. Did you ever stop to
think that compared with religion the efficacy of the law was almost
_nil_? The law deals with conduct, but only at a certain point. We are
apt to find fault with it because it makes what appear to us to be
arbitrary and unreasonable distinctions. That in large measure is
because law is only supplementary."
"How do you mean--supplementary?" queried Tutt.
"Why," answered his partner, "as James C. Carter pointed out,
ninety-nine per cent of all law is unwritten. What keeps most people
straight is not criminal statutes but their own sense of decency,
conscience or whatever you may choose to call it. Doubtless you recall
the famous saying of Diogenes Laertius: 'There is a written and an
unwritten law. The one by which we regulate our constitutions in our
cities is the written law; that which arises from custom is the
unwritten law.' I see that, of course you do! As I was saying only the
other day, infractions of good taste and of manners, civil wrongs, sins,
crimes--are in essence one and the same, differing only in degree. Thus
the man who goes out to dinner without a collar violates the laws of
social usage; if he takes all his clothes off and walks the streets he
commits a crime. In a measure it simply depends on how many clothes he
has on what grade of offense he commits. From that point of view the man
who is not a gentleman is in a sense a criminal. But the law can't make
a man a gentleman."
"I should say not!" murmured Miss Wiggin.
"Well," continued Mr. Tutt, "we have various ways of dealing with these
outlaws. The man who violates our ideas of good taste or good manners is
sent to Coventry; the man who does you a wrong is mulcted in damages;
the sinner is held under the town pump and ridden out of town on a rail,
or the church takes a hand and threatens him with the hereafter; but if
he crosses a certain line we arrest him and lock him up--either from
public spirit or for our own private ends."
"Hear! Hear!" cried Tutt admiringly.
"Fundamentally there is only an arbitrary distinction between wrongs,
sins and crimes. The meanest and most detestable of men, beside whom an
honest burglar is a sympathetic human being, may yet never violate a
criminal statute."
"That's so!" said Tutt. "Take Badger, for instance."
"How often we defend cases," ruminated his partner, "where the
complainant is just as bad as the prisoner at the bar--if not worse."
"And of course," added Tutt, "you must admit there are a lot of
criminals who are criminals from perfectly good motives. Take the man,
for instance, who thrashes a bystander who insults his wife--the man's
wife, I mean, naturally."
"Only in those cases where we elect to take the law into our own hands
we ought to be willing to accept the consequences like gentlemen and
sportsmen," commented the senior partner.
"This is all very interesting, no doubt," remarked Miss Wiggin, "but as
a matter of general information I should like to know why the criminal
law doesn't punish the sinners--as well as the criminals."
"I guess one reason," replied Tutt, "is that people don't wish to be
kept from sinning."
"Thou hast spoken!" agreed Mr. Tutt. "And another reason is that the
criminal law was not originally devised for the purpose of eradicating
sin--which, after all, is the state into which it is said man was
born--but was only intended to prevent certain kinds of physical
violence and lawlessness--murder, highway robbery, assault, and so on.
The church was supposed to take care of sin, and there was an elaborate
system of ecclesiastical courts. In point of fact, though there is a
great deal of misconception on the subject, the criminal law does not
deal with sin as sin at all, or even with wrongs merely as wrongs. It
has a precise and limited purpose--namely, to prevent certain kinds of
acts and to compel the performance of other acts.
"The state relies on the good taste and sense of decency, duty and
justice of the individual citizen to keep him in order most of the time.
It doesn't, or anyhow it shouldn't, attempt to deal with trifling
peccadillos; it generally couldn't. It merely says that if a man's
conscience and idea of fair play aren't enough to make him behave
himself, why, then, when he gets too obstreperous we'll lock him up. And
different generations have had entirely different ideas about what was
too obstreperous to be overlooked. In the early days the law only
punished bloodshed and violence. Later on, its scope was increased,
until thousands of acts and omissions are now made criminal by statute.
But that explains why the fact that something is a sin doesn't
necessarily mean that it is a crime. The law is artificial and not
founded on any general attempt to prohibit what is unethical, but simply
to prevent what is immediately dangerous to life, limb and property."
"Which, after all, is a good thing--for it leaves us free to do as we
choose so long as we don't harm anybody else," said Miss Wiggin.
"Yet," her employer continued, "unfortunately--or perhaps fortunately
from our professional point of view--our lawmakers from time to time get
rather hysterical and pass such a multiplicity of statutes that nobody
knows whether he is committing crime or not."
"In this enlightened state," interposed Tutt, "it's a crime to advertise
as a divorce lawyer; to attach a corpse for payment of debt; to board a
train while it is in motion; to plant oysters without permission; or
without authority wear the badge of the Patrons of Husbandry."
"Really, one would have to be a student to avoid becoming a criminal,"
commented Miss Wiggin.
Mr. Tutt rose and, looking along one of the shelves, took down a volume
which he opened at a point marked by a burned match thrust between the
leaves.
"My old friend Joseph H. Choate," he remarked, "in his memorial of his
partner, Charles H. Southmayde, who was generally regarded as one of the
greatest lawyers of our own or any other generation, says, 'The
ever-growing list of misdemeanors, created by statute, disturbed him,
and he even employed counsel to watch for such statutes introduced into
the legislature--mantraps, as he called them--lest he might, without
knowing it, commit offenses which might involve the penalty of
imprisonment.'"
"We certainly riot in the printed word," said Miss Wiggin. "Do you know
that last year alone to interpret all those statutes and decide the
respective rights of our citizens the Supreme Court of this state wrote
five thousand eight hundred pages of opinion?"
"Good Lord!" ejaculated Tutt. "Is that really so?"
"Of course it is!" she answered.
"But who reads the stuff?" demanded the junior partner. "I don't!"
"The real lawyers," replied Miss Wiggin innocently.
"The judges who write them probably read them," declared Mr. Tutt. "And
the defeated litigants; the successful ones merely read the final
paragraphs."
"But coming back to crime for a moment," said Miss Wiggin, pouring
herself out a second cup of tea; "I had almost forgotten that the
criminal law was originally intended only to keep down violence. That
explains a lot of things. I confess to being one of those who
unconsciously assumed that the law is a sort of official Mrs. Grundy."
"Not at all! Not at all!" corrected Mr. Tutt. "The law makes no pretense
of being an arbiter of morals. Even where justice is concerned it
expects the mere sentiment of the community to be capable of dealing
with trifling offenses. The laws of etiquette and manners, devised for
'the purpose of keeping fools at a distance,' are reasonably adapted to
enforcing the dictates of good taste and to dealing with minor offenses
against our ideas of propriety."