The Law of the Land

LAW, n. Body of enacted or customary rules recognized by a community as binding. — Oxford Dictionary


IN an article published the other day by the Spectator in London some interesting figures about lawmaking in America are given. It appears that five thousand bills have already been introduced in Congress during the present session, and that four or five times that number are to be expected before the session ends. Not all of these bills, to be sure, will be passed, but many of them will be, and meanwhile the various state legislatures have enacted 16,900 odd laws, increasing the whole number, federal, state, and municipal, on the statute books of the United States to some 2,400,000. All of which moved a critic to say that America has more law and more lawlessness than any other nation in the world.

This last neat phrase set me thinking. Are we really more lawless than any other people? One would think that we were about the most tractable and organizable people in the world. We will do almost anything that anybody tells us to; we will shout in chorus whatever a ‘cheer leader’ bawls through a megaphone; try to look pleasant at the mere sight of a sign in a shop telling us to ‘keep smiling’; and a rumbling voice over the radio ordering us to get our teeth cleaned, or to watch our colds, or to join in this ‘drive’ or observe that ’week,’comes to us as a command from on high. We move in multitudes like sheep, and march and countermarch in vast and solemn masses, in a way unknown in other countries. If we almost automatically obey all of these unofficial and anonymous voices, how does it happen that we have such an unfortunate reputation as lawbreakers?

As a matter of fact we do not deserve that reputation. We have more statutes, to be sure, than any other nation in the world, and we have more crimes defined in them, but it docs not follow that, because we have more statutes, we have more law; nor, because we have more crimes defined in our statutes, that we have more crime. We seem to have more law because we have more statutes, and we have more statutes because we have more parliaments; other countries have only one, while we have forty-nine, running full blast. And then we have more cranks and reformers incessantly trying to improve and perfect our morals, not by the spiritual means of persuasion and reason and example, but by the profane means of violence. Numerous acts that are considered innocent, and even refined, in all other civilized countries in the world are made criminal in America. The result is that not all of these two million statutes are obeyed and respected, and they are not respected or obeyed because they are not laws; they are simply statutes, and all or most of the trouble about the enforcement of law in America comes from the persistent refusal to recognize the distinction between a statute and a law.

There are certain acts which the conscience of mankind, the collective opinion of all civilized nations, condemn as wrong. These acts fall into certain easily defined categories. Everyone knows what they are, and does n’t have to look into the statute books to find out; all he has to do is to look into his own heart, for he knows the difference between right and wrong. They are acts that no one, anywhere, can commit without a feeling of guilt. They are wrong in and of themselves — mala in se, as the lawyers call them. There is no great difficulty in enforcing laws that enact penalties for deeds of this kind. All men are agreed about them and are united in a common effort to punish those who commit them. Even those charged with having committed these offenses do not deny the justice of the law; they merely deny their culpability, or advance some excuse to make their case an exception to the general rule. That is, humanity in general is unanimous, or practically unanimous, in upholding the codes that define these offenses and exact penalties for their commission. These enactments are the record of the customary rules recognized by the community as binding. In the good old phrase they are the law of the land, and so far as respect for the law of the land is concerned, the American people are as law-abiding as any in the world.

But, since we have forty-nine parliaments constantly functioning, and since, as the old parliamentarian said, whenever the Commons have nothing else to do they can always make a new crime, we have a mass of statutory enactment that is not a part of the law of the land, enactments that vast sections of the population do not respect, and will not obey, and that cannot be enforced. The people do not respect these enactments because they know that the deeds the enactments declare to be wrong are not wrong, and it is impossible by the use of force, however strong or violent, to impose upon the moral sense of the people a feeling that a given act is wrong just because those whose prejudices it offends have been able to induce a legislature to enact it into what is called a ’law.’ It is not a law, in a democracy at least, or in any other form of government, for that matter, unless it has the sanction of the people, is implicit in their lives, and has its roots deep down in their habits and customs. Custom is the supreme law in all communities, civilized or savage, and unless the statute conforms to the custom it is no law — that is, it is not the law of the land.


We still think of law in the outworn sequences of the Ancien Régime. We still think of government in the old terms of absolutism, and of a law as an edict decreed by a monarch and imposed on the people by force and fear. If the edict is not obeyed, we conclude that it is only because sufficient force has not yet been applied to inspire the requisite fear. We think that all that is needed is bigger and better policemen. Even in modern democracy this habit of thought survives; we use the cant phrase ‘the will of the people,’ but do not hesitate to force upon them statutes that do not represent the will of a numerous and respectable minority and that are contemned and flouted by them. A criminal statute that seeks to regulate personal habits will not work unless it has the sanction of practically all of the people, and is therefore in harmony with the public opinion. A mere majority, though sufficient to enact a statute, cannot make it a law, because a law must derive its force and sanction from the public conscience.

Men do not fear the penalties of the law half so much as they fear public opinion, which for them is the opinion of their neighbors; the statute indeed may disapprove their conduct, but unless their neighbors disapprove it, then, so far as that community is concerned, it is a dead letter. Juries will not convict, and neighbors will not play the spy and informer, for among men of decency and honor that is one of the things that are simply not done. That this truth is beginning to find recognition was shown the other day when it was announced that a fund of $50,000,000 was to be raised for the purpose of conducting an ‘educational campaign,’ extending over a period of ten years, in favor of Prohibition. If the people believed in the prohibitory statutes there would have been no insuperable difficulty in enforcing them, and no necessity for an educational campaign. But the trouble with the reformers is that they are always getting the cart before the horse. They imagine that they can change the custom by changing the statute; but they can’t — they must change the custom first. That, of course, is a terribly hard thing to do, and probably the reason why they prefer to change the statute; they find it so much easier.

Emerson, whom one perhaps, at the risk of appearing naïve in an advanced and sophisticated age, may still quote — Emerson said: ‘Republics abound in young civilians who believe that the laws make the city, that grave modifications of the policy and modes of living and employments of the population, that commerce, education and religion, may be voted in or out; and that any measure, though it were absurd, may be imposed on a people if only you can get sufficient voices to make it a law. But the wise know that foolish legislation is a rope of sand which perishes in the twisting; that the state must follow and not lead the character and progress of the citizen; the strongest usurper is quickly got rid of; and they only who build on Ideas build for eternity; and that the form of government which prevails is the expression of what cultivation exists in the population which permits it. The law is only a memorandum. We are superstitious, and esteem the statute somewhat; so much life as it has in the character of living men is its force.’

But if Emerson should be considered too transcendental, an able discussion of the whole question, in all its practical and realistic bearings, will be found in a book entitled Law, Its Origin, Growth and Function, written by the late James Coolidge Carter of the New York Bar. If this admirable work could be prescribed as the book of the month for a year or two, we might learn something to our advantage, though it probably would have little effect upon the reformers. There is a certain mysticism about them, and especially about the Prohibitionists, with which reason, facts, and experience are all powerless to deal.

A notable example of the authority and supremacy of custom was afforded in England nearly a century ago. There the law provided that a convicted murderer should be hanged and then drawn and quartered. But with the growth of culture and refinement, and the more humane sentiment they produce, the senseless barbarity of this penalty, or at least of the latter part of it, became apparent, and the practice fell into disuse. The provision remained unchanged on the statute books, but murderers, though they were still hanged, were no longer drawn and quartered. Public opinion had completely abolished the practice years before the statute was changed to conform to the new custom.

We have recently seen this same principle at work in Michigan. The legislature of that state had enacted a statute punishing with imprisonment for life anyone convicted of an offense four times. The statute was intended to apply to habitual criminals, and under it a woman who had already been convicted three times of violating the Prohibition statutes was convicted of a fourth offense and sent to prison for life. She had sold a pint of whiskey to buy food for her children. But the people of Michigan were too enlightened and humane to imprison a woman for life merely because she had sold a pint of whiskey. That sort of thing was not one of the customs of Michigan. No jury could have been found to convict offenders if such a dreadful penalty were to be attached to their verdict. And so the legislature found that they had been mistaken and amended the act so that it should no longer apply to violations of the Prohibition statutes. They found out that their statute was not a law, and it was not a law because the people would not back it up.

For that is what a law is in a democracy — a statute that the people will back up; indeed, in the long run, that is all a law is anywhere. The laws of a nation or of a community are the recorded customs of the people of that nation or that community, and all the historic codes — the Mosaic code, the laws of Solon and Lycurgus, the codes of Justinian and Napoleon, the Civil Law, the English Common Law, and the legendary taboos of savage tribes — are but customs that have existed so long that they have crystallized into law. Men may write them on parchment, publish them under solemn sanctions, and provide penalties for the small minority who fail to observe them. But these men do not invent them any more than grammarians invent a language. The grammarians merely analyze a language after it has been spoken and used for centuries. In the same way the great lawgivers of the world did not sit down and think awhile and then write out the laws they thought ought to be in force; they found out what the law already was, and wrote it down — that is, they collected and codified the customs of their people. It is not the law that makes the custom, but the custom that makes the law, and when statutes run counter to custom they are impotent.


A great deal of the difficulty in establishing national Prohibition arises from the fact that the personal habits of the people arc not uniform throughout the nation. There are — or at least before the prohibitory statutes were enacted there were — many localities where the old custom was not in serious conflict with the new statute. Total abstinence, while not by any means universal, was there so general that it was considered disreputable to drink liquor; indeed the conditions and the manner in which liquor was consumed were enough to make it disreputable. The trouble arose when earnest teetotalers who could see no difference between a hillbilly getting drunk on applejack and a man having a bottle of Château Margaux to his dinner tried to impose their habits and standards of conduct on the entire population of the land.

In the effort to cure one evil, moral reformers often succeed in doing no more than to substitute another for it. Often they substitute something worse. As Remy de Gourmont said: Quand la morale triomphe il se passe des choses irès vilaines (When morality triumphs very ugly things happen). They are possessed by their theory, and they are bound to stick to it through thick and thin. Now a theory is a theory; it may be good or it may be bad, but after all it is only a theory, and the only way to find out whether it is a good theory is to try it. If it works, it is a good theory; if it does n’t work, then it is a bad theory, and at this point a wise man discards it and gets another. The scientific mind deduces its theory from the facts of life, or adjusts it to them; the reformer evolves his theory out of his own prejudices which he mistakes for principles, and tries to fit the facts of life to it. And as facts are stubborn things, and quite often will not fit into the theory, something has to give way, and it is never the facts. This process of trying to force the explosive facts of life into the narrow limits of a theory is responsible for much of the trouble hi a world that already has more trouble than it knows how to deal with. So much time and energy are spent in the hopeless task of trying to enforce statutes based on these impossible theories that none are left to devote to the real criminals, and the lack of respect for these statutes is contagious and breeds disrespect for the real laws. Gresham’s law works here as elsewhere; bad money drives out the good, and foolish legislation weakens that which is wise and salutary.

What we need is to have our legislation entrusted for a session or two to codifiers. If only we could have a commission, composed of, say, Moses and Lycurgus and Justinian, to go over our two million ‘laws’ and mark those that are not in accord with the customs of the people, and if our legislative bodies would repeal the statutes so marked, relegating some of them to the shades of a forgotten past, and placing others on file to await the dawn of a Utopian future, what a blessing it would be, and what peace would descend upon the land! The Constitution would be restored to its rightful place as the safeguard of our liberties, and we should be released from our insane preoccupation with the personal habits of other people, to devote our thought and energies to questions of real importance.