By Advice of Counsel

Which was a wise conclusion, in view of the fact that Edna Pumpelly, née Haskins, was much better equipped by nature to take care of Mr. Wilfred Edgerton in the hectic environs of a police court than he was qualified to take care of her. And so it was that just as Mrs. Rutherford Wells was about to sit down to tea with several fashionable friends her butler entered, bearing upon a salver a printed paper, which he presented to her, in manner and form the following:

CITY MAGISTRATE'S COURT, CITY OF NEW YORK

In the name of the people of the State of New York To "Jane" Wells, the name "Jane" being fictitious:

You are hereby summoned to appear before the – District Magistrate's Court, Borough of Manhattan, City of New York, on the eighth day of May, 1920, at ten o'clock in the forenoon, to answer the charge made against you by Edna Pumpelly for violation of Section Two, Article Two of the Traffic Regulations providing that a vehicle waiting at the curb shall promptly give way to a vehicle arriving to take up or set down passengers, and upon your failure to appear at the time and place herein mentioned you are liable to a fine of not exceeding fifty dollars or to imprisonment of not exceeding ten days or both.

Dated 6th day of May, 1920.

JAMES CUDDAHEY, Police Officer,

Police Precinct –, New York City.

Attest: JOHN J. JONES, Chief City Magistrate.

"Heavens!" cried Mrs. Wells as she read this formidable document. "What a horrible woman! What shall I do?"

Mr. John De Puyster Hepplewhite, one of the nicest men in New York, who had himself once had a somewhat interesting experience in the criminal courts in connection with the arrest of a tramp who had gone to sleep in a pink silk bed in the Hepplewhite mansion on Fifth Avenue, smiled deprecatingly, set down his Dresden-china cup and dabbed his mustache 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?"