By Advice of Counsel

Mr. Wilfred Edgerton suspected that a magistrate's court was a dirty sort of hole, full of brawling shyster lawyers, and he didn't want to know any more about such places than he could help. Theoretically he was aware that on a proper complaint sworn to by a person supposing himself or herself criminally aggrieved the judge would issue a warrant to an officer, who would execute it on the person of the criminal and hale him or her to jail. The idea of Mrs. Wells being dragged shrieking down Fifth Avenue or being carted away from her house in a Black Maria filled him with dismay.

Yet that was what Mrs. Pumpelly proposed to have done, and unfortunately he had to do exactly what Mrs. Pumpelly said; quickly too.

"Maddox," he called to a timid youth in a green eye-shade sitting in lonely grandeur in the spacious library, "just run up to the—er—magistrate's court on Blank Street and ascertain the proper procedure for punishing a person for obstructing the highway. If you find an appropriate statute or ordinance you may lay an information against Mrs. Rutherford Wells for violating it this afternoon in front of the residence next to hers; and see that the proper process issues in the regular way."

To hear him one would have thought he did things like that daily before breakfast—such is the effect of legal jargon.

"Yes, sir," answered Maddox respectfully, making a note. "Do you wish to have the warrant held or executed?"

Mr. Wilfred Edgerton bit his mustache doubtfully.

"We-ell," he answered at length, perceiving that he stood upon the brink of a legal Rubicon, "you may do whatever seems advisable under all the circumstances."

In his nervous condition he did not recall what, had he stopped calmly to consider the matter, he must have known very well—namely, that no warrant could possibly issue unless Mrs. Pumpelly, as complainant, signed and swore to the information herself.

"Very well, sir," answered Maddox, in the same tone and manner that he would have used had he been a second footman at Mrs. Pumpelly's.

Thereafter both Edgertons, but particularly Wilfred, passed a miserable hour. They realized that they had started something and they had no idea of where, how or when what they had started would stop. Indeed they had terrifying visions of Mrs. Wells being beaten into insensibility, if not into a pulp, by a cohort of brutal police officers, and of their being held personally responsible. But before anything of that sort actually happened Maddox returned.

"Well," inquired Wilfred with an assumption of nonchalance, "what did you find out?"

"The magistrate said that we would have to apply at the court in the district where the offense occurred and that Mrs. Pumpelly would have to appear there in person. Obstructing a highway is a violation of Section Two of Article Two of the Police Department Regulations for Street Traffic, which reads: 'A vehicle waiting at the curb shall promptly give way to a vehicle arriving to take up or set down passengers.' It is not usual to issue a warrant in such cases, but a summons merely."

"Ah!" sighed both Edgertons in great relief.

"Upon which the defendant must appear in default of fine or imprisonment," continued Maddox.

The two lawyers looked at one another inquiringly.

"Did they treat you—er—with politeness?" asked Wilfred curiously.

"Oh, well enough," answered the clerk. "I can't say it's a place I hanker to have much to do with. It's not like an afternoon tea party. But it's all right. Do you wish me to do anything further?"

"Yes!" replied Wilfred with emphasis, "I do. I wish you would go right up to Mrs. Pumpelly's house, conduct that lady to the nearest police court and have her swear out the summons for Mrs. Wells herself. I'll telephone her that you are coming."

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?"

"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."

"I wonder," hazarded Miss Wiggin thoughtfully, "if there isn't some sociological law about crimes, like the law of diminishing returns in physics?"

"The law of what?"

"Why, the law that the greater the force or effort applied to anything," she explained a little vaguely, "the greater the resistance becomes, until the effort doesn't accomplish anything; increased speed in a warship, for instance."

"What's that got to do with crime?"

"Why, the more statutes you pass and more new crimes you create the harder it becomes to enforce obedience to them, until finally you can't enforce them at all."

"That is rather a profound analogy," observed Mr. Tutt. "It might well repay study."

"Miss Wiggin has no corner on analogies," chirped Tutt. "Passing statutes creating new crimes is like printing paper money without anything back of it; in the one case there isn't really any more money than there was before and in the other there isn't really any more crime either."

"Only it makes more business for us."

"I've got another idea," continued Tutt airily, "and that is that crime is a good thing. Not because it means progress or any bunk like that, but because unless you had a certain amount of crime, and also criminal lawyers to attack the law, the state would never find out the weaknesses in its statutes. Therefore the more crime there is the more the protective power of the state is built up, just as the fever engendered by vaccine renders the human body immune from smallpox! Eh, what?"

"I never heard such nonsense!" exclaimed Miss Wiggin. "Do let me give you some more tea! Eh, what?"

But at that moment Willie announced that Mr. Rutherford Wells was calling to see Mr. Tutt and tea was hastily adjourned. Half an hour later the old lawyer rang for Bonnie Doon.

"Bonnie," he said, "one of our clients has been complained against by her next-door neighbor, a got-rich-quick lady, for obstructing the street with her motor. It's obviously a case of social envy, hatred and malice. Just take a run up there in the morning, give Mrs. Pierpont Pumpelly and her premises the once-over and let me know of any violations you happen to observe. I don't care how technical they are, either."

"All right, Mr. Tutt," answered Bonnie. "I get you. Isn't there a new ordinance governing the filling of garbage cans?"

"I think there is," nodded Mr. Tutt. "And meantime I think I'll drop over and see Judge O'Hare."

"I'll settle her hash for her, the hussy!" declared Mrs. Pumpelly to her husband at dinner the following evening. "I'll teach her to insult decent people and violate the law. Just because her husband belongs to a swell club she thinks she can do as she likes! But I'll show her! Wait till I get her in court to-morrow!"

"Well, of course, Edna, I'll stand back of you and all that," Pierpont assured her. "No, thank you, Simmons, I don't wish any more 'voly vong.' But I'd hate to see you get all messed up in a police court!"

"Me—messed up!" she exclaimed haughtily. "I guess I can take care of myself most anywheres—good and plenty!"

"Of course you can, dearie!" he protested in a soothing tone. "But these shyster lawyers who hang around those places—you 'member Jim O'Leary out home to Athens? Well, they don't know a lady when they see one, and they wouldn't care if they did; and they'll try and pry into your past life—"

"I haven't got any past life, and you know it too, Pierpont Pumpelly!" she retorted hotly. "I'm a respectable, law-abidin' woman, I am. I never broke a law in all my days—"

"Excuse me, madam," interposed Simmons, with whom the second footman had just held a whispered conference behind the screen, "but James informs me that there is a police hofficer awaiting to see you in the front 'all."

"To see me?" ejaculated Mrs. Pumpelly.

"Yes, madam."

"I suppose it's about to-morrow. Tell him to call round about nine o'clock in the morning."

"'E says 'e must see you to-night, ma'am," annotated James excitedly. "And 'e acted most hobnoxious to me!"

"Oh, he acted obnoxious, did he?" remarked Mrs. Pumpelly airily. "What was he obnoxious about?"

"'E 'as a paper 'e says 'e wants to serve on you personal," answered James in agitation. "'E says if you will hallow 'm to step into the dining-room 'e won't take a minute."

"Perhaps we'd better let him come in," mildly suggested Pierpont. "It's always best to keep on good terms with the police."

"But I haven't broken any law," repeated Mrs. Pumpelly blankly.

"Maybe you have without knowin' it," commented her husband.

"Why, Pierpont Pumpelly, you know I never did such a thing!" she retorted.

"Well, let's have him in, anyway," he urged. "I can't digest my food with him sitting out there in the hall."

Mrs. Pumpelly took control of the situation.

"Have the man in, Simmons!" she directed grandly.

And thereupon entered Officer Patrick Roony. Politely Officer Roony removed his cap, politely he unbuttoned several yards of blue overcoat and fumbled in the caverns beneath. Eventually he brought forth a square sheet of paper—it had a certain familiarity of aspect for Mrs. Pumpelly—and handed it to her.

"Sorry to disturb you, ma'am," he apologized, "but I was instructed to make sure and serve you personal."

"That's all right! That's all right!" said Pierpont with an effort at bonhomie. "The—er—butler will give you a highball if you say so."

"Oh, boy, lead me to it!" murmured Roony in the most approved manner of East Fourteenth Street. "Which way?"

"Come with me!" intoned Simmons with the exalted gesture of an archbishop conducting an ecclesiastical ceremonial.

"What does it say?" asked her husband hurriedly as the butler led the cop to it.

"Sh-h!" warned Mrs. Pumpelly. "James, kindly retire!"

James retired, and the lady examined the paper by the tempered light of the shaded candles surrounding what was left of the "voly vong."

"Who ever heard of such a thing?" she cried. "Just listen here, Pierpont!"

"CITY MAGISTRATE'S COURT, CITY OF NEW YORK

"In the name of the people of the State of New York

"To 'Maggie' Pumpelly, the name 'Maggie' being fictitious:

"You are hereby summoned to appear before the – District Magistrate's Court, Borough of Manhattan, City of New York, on the tenth day of May, 1920, at ten o'clock in the forenoon, to answer to the charge made against you by William Mulcahy for violation of Section One, Article Two, of the Police Traffic Regulations in that on May 7, 1920, you permitted a vehicle owned or controlled by you to stop with its left side to the curb on a street other than a one-way traffic street; and also for violation of Section Seventeen, Article Two of Chapter Twenty-four of the Code of Ordinances of the City of New York in that on the date aforesaid, being the owner of a vehicle subject to Subdivision One of said section and riding therein, you caused or permitted the same to proceed at a rate of speed greater than four miles an hour in turning corner of intersecting highways, to wit, Park Avenue and Seventy-third Street; 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.