The Man of Last Resort; Or, The Clients of Randolph Mason. Melville Davisson Post

PREFACE

       Table of Contents

      IN this fin-de-sîècle 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