Thevice 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.
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.
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.
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.
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.
One would have imagined that this handsome fellow had just stepped out from a smart New York club, could he have forgotten that such an institution was almost a continent to eastward. The Governor had maintained that it was quite possible to live as a gentleman should wherever Providence had provided Chinamen and water, and that the matter was not entirely hopeless if the Chinamen were not to be had, so the water remained.
It was true indeed that the Executive had maintained his customs with no little pain against the divers protests of gods and men, ofttimes wrought in silence, but not infrequently urged fiercely in the open. But the Governor was not one with whom meddling folk could trifle and preserve the peace. This fact certain bad men had learned to their hurt west of the Gila, and divers evil-disposed persons regretted and were buried, and regretted and remembered south of the Pecos. So that in time this matter came to be regarded as a peculiarity, and passed into common respect as is the way with the peculiarities of those expeditious spirits who shoot first and explain afterwards.
The something on the Governor's mind was a something of grave import, for which he could evidently find no solution, and presently he began to pace the length of his private office with long strides, and with his hands thrust deep into his pockets.
Suddenly the door opened and a Chinaman entered with a telegram. The Governor looked up sharply, and taking the envelope tore it open with evident unconcern. When his eyes ran over the message he drew in a deep breath, and, seating himself at a table, spread out the paper before him. This was the advent of the unexpected, for which Mr. Randal was not quite prepared, and this his manner exhibited to such a degree that the stolid Celestial wondered vaguely what was up with the big foreign devil.
This Governor was the crowning achievement of a machine. He was the elder son of an ancient family in Massachusetts, and had been reared and educated in an atmosphere of culture. It had been the intention of his family to have him succeed his father with the practice of the law, but the plans of men are subject to innumerable perils, and it soon developed that young Mr. Randal was not at all adapted to the duties of a barrister. Indeed it was very early apparent that nature had intended this man for the precarious vagaries of a public life. He was magnetic, generous, with a splendid presence, and the careless, speculative spirit of a gambler. In truth, Alfred Capland Randal was a politician per se. While in college he had been a restless element, injecting the principles of practical policy into everything he touched, from the Greek-letter fraternities to the examinations in Tacitus, and all with such reckless, jovial abandon that divers sage members of the faculty speculated with much wonder as to which particular penal institution would be his ultimate domicile.
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