PREFACE
IN this fin-de-siècle 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 sunlight 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 corners 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.