"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