Playing at Providence

I

IT is a fine thing to write a law. It displays our patriotism, demonstrates our intelligence, practises our rhetoric, flatters our pride, encourages our delusions, and all this without undue expenditure, for the burden of enforcement is cast upon others. Still better is it if we make that a crime which was not a crime; then we become as gods, knowing good and evil. We wave the wand of justice, and see in our mind’s eye untold generations bow to our ethical sense as to a superior and inevitable Providence. It is certainly an ample ambition to

Snatch from his hand the balance and the rod, Rejudge his justice, be the god of God.

Recognizing the omnipotence of the lawgiver, the American sovereigns — of whom, according to popular theory, there are now over one hundred millions — are playing at Providence with as much enthusiasm as if it were a new amusement. It is not, however, a new amusement, but has always been popular.

How is it possible to tell a good law when history displays such contradictory standards?

According to the Seventh Aphorism of the Eighth Book of the De Augmentis of Lord Bacon, ‘That law may be set down as good which is (1) certain in its meaning, (2) just in precept, (3) convenient in execution, (4) agreeable to the form of government, (5) productive of virtue in those that live under it.’

Amplifying the implications of these principles, we may add the following technical rules: Laws should be (6) as few as possible, (7) as simple as possible, (8) suitable to the happiness of the people, (9) general and not special, (10) not lightly changed, (11) not too severe.

With these principles we are now prepared to reform the world, outlaw war, and prove that the pen is mightier than the sword. Before doing so let us consider a few laws as illustrations.

II

In order not to give offense, let us choose a foreign country, an ancient time, and a law that was never passed. That kind of law has many advantages. Nobody is required to knowabout it, it runs no risk of judicial construction, and it has no unforeseen and injurious effects.

So, at least, thought the Emperor Tiberius. In his reign, as Tacitus relates, the Roman ædiles — that is, the directors of public safety — complained that the sumptuary laws were not being observed (as usual); that prices were rising, contrary to law (as usual); and that too much was spent on feasts, contrary to the lex Julia (as usual). The Senate, as is natural and frequent in all times, passed the difficulty up to the Emperor. Tiberius, having considered the possibility of checking extra vagance by law, pondered, in the words of Professor Ramsay, whose translation I am using, whether ‘it would not be unbecoming to take in hand measures which he could not enforce,’and sent his famous letter to the Senate, in which he said: —

‘The many laws devised by our forefathers, and those passed by the Divine Augustus, have but given immunity to extravagance; the former have passed into oblivion; the latter — what is more shameful still — have been contemptuously disregarded. Eor if a man desires what has not been forbidden he may be afraid of prohibition; but if he may with impunity do what has been prohibited, neither fear nor shame can restrain him longer.'

So the Senate remitted the matter to the ædiles, and by degrees the intemperate expenditure fell out of style. The philosophical Tacitus suggests that there may be cycles in human affairs, and that fashion may be more powerful than law.

Afterward the lure of a bad law proved too strong for the self-restraint of even a Tiberius, and he endeavored to prevent the wearing of silk by men, and to reduce the expenses of the table. These laws, however, faded into oblivion, following the lex Oppia and the lex Orchia and the lex Eannia and the lex Didia and the lex Julia and the lex This and the lex That, and many other leges whose principal function in history is to supply learned men with material for lists. If an extreme sumptuary law is passed, requiring too sudden a change in the habits of the people, it induces a reaction toward lawlessness. ‘Virtue itself hath need of limits’ — that is, the virtue we would impose on others,

Lest one good custom should corrupt the world.

A convincing example of this is the English Gin Act (9 George II c. 23, 1736). Leeky states that the passion of gin drinking was the momentous event of English history in the eighteenth century. Its terrible effects are known to everyone, perhaps most effectually by the horrible prints of Hogarth, in which even the houses are intoxicated. This exaggerated form of drunkenness from distilled liquors was due in large part to improvident legislation — perhaps it would be more correct to say too provident legislation. The English Government in 1689, partly through hostility to France and partly to encourage home distilleries, prohibited the importation of spirits from foreign countries, but threw open the trade of distilling, on payment of certain duties, to all its subjects. This protective legislation worked to a charm. The home industry of distilling was so fostered that, in default of French wines, the product of British distilleries rose from 527,000 gallons in 1684 to 5,394,000 gallons in 1735.

This magnificent success began to frighten the legislators. They naturally turned around to destroy by law that which had been built up by law; the property whose existence had been approved by taxation must now be destroyed by taxation. The home product flowed so fast and cheap that anyone could be made ‘drunk for a penny and dead drunk for twopence, with straw for nothing.’ And so in 1736 the celebrated Gin Act was passed. It was really intended to be a prohibitive statute, under the guise of a tax. There were no precedents for prohibition in English legislation; the canons of the law had theretofore been exploded, not against drink, but against bad drink, — certainly a humane object, — and a brewer of bad ale was made to ‘ sit exposed on the seat of filth.’ But already there was evidently a growing belief that people could do without drink; otherwise so fine a welcome would not have been extended to Ben Jonson’s splendid prohibition lyric, which echoed through the land in the seventeenth century:—

The Gin Act was well sponsored, being introduced by Sir Joseph Jekyll, foremost among the philanthropists of his day, a noble-minded man, albeit he may have been thought a little ‘puzzleheaded.’ Walpole, the worldly-wise, did not favor the Act. He thought the law could not last, for it would diminish revenue, encourage smuggling, and exasperate the poor. The law affected only the retailers; it left the wholesale trade as it was. But after the law was passed an unaccountable thing happened— incredible, indeed, if it were not a matter of history. Prohibition did not prohibit. It seemed as if the reformers must have omitted to consider one or two points connected with the general subject—as, for instance, human nature and the nature of law. ‘For never,’ says Luke Owen Pike, in his History of Crime, ‘was the powerlessness of a single statute to alter the whole habits of a people more clearly shown than in the results of this law. ’

After initial riots and a temporary decrease, the output went up to 7,000,000 gallons by 1742. In 1743 the duties and licenses were reduced, ‘against the opposition of the whole Bench of Bishops’; but still the pandemonium increased. In 1749 more than four thousand persons were convicted of bootlegging, as we call it now, and the ‘private shops’ were estimated at over 17,000. Crime and immorality increased, In 1751 and 1753 some strenuous measures were introduced which looked to regulation and not to prohibition. Of these measures Lecky says: ‘Though much less ambitious than the Act of 1736, these measures were far more efficacious, and they form a striking instance of the manner in which regulation, if not overstrained or ill-timed, can improve the morals of the people,’

In the next century there was a somewhat similar attempt to enforce a limited prohibition on the Irish people. It was received with the degree of calm native to that country. ‘In 1811, when the duty on spirits was 2s. 6d. a gallon, duty was paid on 6,500,361 gallons, while in 1822, when the duty Mas 5s. 6d., only 2,950,647 gallons were brought to the charge; but the estimated consumption was not less than 10,000,000 gallons.’ Illicit profits encourage desperate risks. ‘A heavy fine was imposed on every parish manor or lordship in which an illicit still was found, and the unfortunate wretches found Marking it were transported for seven years; but smuggling and anarchy were perpetuated, the populace exasperated, and part of the country put in opposition not only to the civil authority, but also the military force of the Government.’ In the words of J. R. McCulloch, ‘The real effect of the high duties was to superadd the atrocities of smuggling to the idleness and dissipation of the drunkard.’

It was the failure of such laws as these which led Pike to say: ‘Forbid men to drink openly, and they will buy it secretly; forbid native manufacture of drink, and importation will become the substitute; forbid importation, and the smuggler will regain his popularity; destroy the smuggler, and every household will supply its own wants by its own brew house or its own still.’

It is interesting to observe that the Gin Act produced a temporary effect in the direction intended. It is an unfortunate thing that laws so often seem successful on the surface, while, underneath, the subtle, inevitable principles work on with deadly finality. It takes some time for people to realize the immense sums which can be made out of illicit trade, and more time to establish the trade. Once established, it may spread by leaps and bounds.

III

Let us pass to other kinds of law. The transition of the Highlands from their wild freedom to civilization affords a number of entertaining examples. ‘There insolvency was considered disgraceful. Bankrupts were forced to surrender their all, were clad in a party-colored clouted garment with hose of different sets, and had their hips dashed against a stone in the presence of the people by four men, each taking hold of an arm or a leg.’ Insolvency is frequent with us now, indeed it is almost a profession with some; but it was very unusual in Scotland, where there was too little wealth to make bankruptcy attractive. The Scotch punishment was ‘Toncruaidh,’and no judge or jury nowadays would inflict such a horrible name on anyone. The party-colored garment reminds us of the green cap which the Roman bankrupt wore in later mediæval times, as Scanarolus records in De Visitatione Carceratorum, for it appears that the cap was a permanent ornament, and men trusted him who wore it at their peril: Fœnum habet in cornu, longe fuge (Flee him far, he has hay on his horn). ‘Beware of poets,’ says Horace. ‘Beware of bankrupts,’ says the law. Not so far apart! The theory was that what the bankrupt could not pay in cash he should pay with his body. ‘Solvit in corpore ignominiose ferendo biretum viride et a caœteris irrisionem et contemptum perferendo.' Such was the legal value of ridicule in the ages when the grotesque still leered through art.

Or take the Highland punishment for violation of the marriage vow: ‘The guilty person, either male or female, was made to stand in a barrel of cold water at the church door, after which the delinquent, clad in a wet canvas shirt, was made to stand before the congregation, and at the close of the service the minister explained the nature of the offense.’

I am glad to learn that this punishment was seldom necessary. Nowadays such a punishment would be uncongenial to the congregation, for the Church has ceased to be the censor of morals, and the sanctuary is no longer the scene of penance, at least in the Scottish Kirk. Imagine such a punishment inflicted now at the door of one of our fashionable churches! It would be opposed by the most conservative of clergymen. The Low Church would say, ‘It is a civil matter’; the High Church would say, ‘The ceremony comports not with our ritual’; the Broad Church would say, ‘It is a little matter anyway’; the devout scientist would say, ‘Let us thank God for evolutionary ethics, which has taken away the reproach of sin, but has not deprived us of the thing’; and a few others would say, ‘Go, and sin no more.’

It is well known that the favorite Highland sport which had been skillfully, profitably, and prayerfully pursued for generations was cattle stealing. James the First, the Solomon of his age, having been told that a cow had strayed from the Highlands of Scotland to the southern parts of England, asked, ‘How passed she unstolen through the debatable lands ? ’ Scotch instinct could not understand how so many chances had been lost. But after the failure of the last Jacobite rebellion the scene changed, for one of Culloden’s ‘dread echoes’ was a law imposing the punishment of death for the sportful error. At that time England was enjoying the fad of capital punishment to the full. Parliament had quite a run on it, and the number of capital crimes was largely increased, until when Blackstone wrote (1769) there were one hundred and sixty offenses punishable by death. Let me explain that this was really a sign of progress. The growth of civilization and wealth had correspondingly increased the ways of stealing, and therefore the number of available avenues to the gallows had become correspondingly abundant.

Sheep stealing had always been a capital felony in England (if the sheep was over 1s. in value), and after 1742 without benefit of clergy, —

Capital punishment for cattle raising followed as a logical necessity. This logic was not so obvious to the Scots, and so it happened that when Donald Cameron, a scion of the brave Clan of the Crooked Nose and a distinguished leader in the sport, having been convicted for a lapse into the prerevolutionary pastime, was hanged at Kinloch Rannoch in 1752, he was quite hurt. He could not understand the situation; he had done nothing but ‘remove cattle from the grass of those with whom he was at feud.’ Why indeed? It was, after all, only ‘spulzie’! (What an affectionate name!)

Now, of course we know that

but that is a mere commonplace prejudice and is not to be compared with the noble resentment of the Highlander. He saw his dear little hills of freedom submerged in the rising tide of civilization. The consequent indignation is characteristically expressed in

the lament of the widow of Gilderoy, the Red Gilly or youth of the Clan Gregor: —

This Gilderoy, celebrated in ballad and story, is worthy of a moment’s consideration. Like many another criminal, his experiences were both judicial and extrajudicial. His extrajudicial experience, for instance, was when he picked the pocket of Cardinal Richelieu, with the innocent connivance of the French King, who was really an accessory before the fact. The King — Louis XIII—thought it was a joke, so neither royalty nor Gilderoy was prosecuted. His first judicial experience was when he hanged a judge on a gallows that happened to be handy. His last judicial experience was when that action was reciprocated. One can appreciate the first incident better if the facts are remembered, and no one who has a spark of that artistic temperament which incites us to hang our judges and all other critics will be inclined to blame him, for, ‘as he went along the road,’so the legend reads, ‘he passed the gallows,’—

and it cockered the Brute with its dreadful fruit, — but this was an extraordinary gallows, and extended not a triple but a quadruple beam. It had accommodations for four, but only three were using it, and these three were his friends. Fortunately he had just kidnapped a judge and still had him on hand. He naturally appointed him to the vacancy. By this obvious act he fostered economy of operation with an increased output, elevated a public servant, restored balance to the instrument of justice, and clothed a public monument with symmetry. For the moment retribution brought its solace.

Let us descend to earth, and may the gallows never tempt our feet heavenward again. Poor Gilderoy, let us shed a tear (if we have one) on his grave (if he has one). ‘Sus. per coll’ Terrible, terrible words, which shall be blotted out of our judgment books when King Buncombe and Queen Namby-Pamby come into their own.

Such ballads as ‘Gilderoy,’ which was a great favorite with the Scots, afford a strange commentary on that celebrated aphorism of Fletcher of Saltoun (1704): ‘I knew a very wise man that believed that if a man were permitted to make all of the ballads he need not care who should make the laws of a nation.’ But if that same very wise man had lived a little longer he might have seen in the land of the patriotic Fletcher that after a period of carnage and oppression the ballads were all Jacobite and the laws all Hanoverian. Of course, if the ballad makers and ballad singers do not care about this, then the opinion of Fletcher’s wise friend is, in a sense, correct.

We may well believe that the degradation of the Highlands into paths of civilization was due rather to the commercial union with England and its attendant changes, the introduction of roads, and the abolition of hereditary jurisdictions, than to the elimination of a few gentlemanly banditti of the Old School.

In fact, the efficacy of a criminal code depends not so much on its severity as on its prompt but deliberate execution, and the consequent connection of crime with punishment in the public mind. It is now, as in the days of the Preacher: ‘ Because sentence against an evil work is not executed speedily, therefore the heart of the sons of men is fully set in them to do evil.’

IV

From these occasional and unphilosophic acts let us turn to two enlightening streams of legislation, coming down from ancient times in contradictory currents. They demonstrate a mighty conflict in legal theory. One illustrates the romantic, individualistic, and ethical tendency, the other the practical, socialistic, and utilitarian tendency in the legislative mind. I mean those laws requiring men to wear beards, and those requiring men not to wear them.

The laws against beards may be justified politically on the ground that they expropriate the beard for public use just like any other unearned increment; for why should a man be allowed to retain that for which he has not worked? Philosophically, Occam’s razor alone — if it be still sufficiently sharp — would be sufficient to shave the world. The principle of the Invincible Doctor is as invincible as he: Entia non sunt multiplicanda prœter necessitatem.

Egypt was the cradle of civilization, and men did not wear beards in the cradle of civilization. A beard was the mark of a stranger. The Israelites, on the contrary, were devoted to their beards, though an occasional concession to prejudice was allowed, as when Joseph shaved his beard to go before the royal presence. In general that virile and persistent race preferred the wastes of Arabia with beards to the fleshpots and garlic of Egypt without beards. They may, indeed, have found that a full beard is a great inconvenience in the proper treatment of fleshpots. At last they could stand it no longer. To the desert ! Then came the great law of Moses: ‘Neither shall thou mar the corners of thy beard.’ Behold the power of the pen! For these are fateful words, responsible to this day for the bushy entanglements of South Fourth Street on a market day.

The law is an excellent example of the rule that a good law should accord with the national genius. During thousands of years this law has been observed, certainly more obviously and perhaps more consistently than parts of the Decalogue; and why? No doubt because it is easier to keep, and appeals more directly to imagination and personal pride. Tested by Bacon’s rules, we see that it is certain in its meaning, because its intent is as plain as the nose on your face; just in precept, because it applies equally to all men; convenient in execution, because it is purely negative in its requirements; agreeable to the form of government, which, being hierarchical, required all the talents with which men are endowed to be cultivated as a trust; and productive of virtue, in that it inculcates natural beauty of appearance and the moral habit of obedience.

Henceforth the beard is sacred in the Semitic mind. From Aaron’s beard with its shining ointment, which rapt the Psalmist into ecstasy, to the beard of the Prophet, which has given inspiration and sanction to many a noble oath, the beard has waved its benison over the people of the East. I have heard that there is in India a temple raised as a monument and reliquary for a mere strand — nay, a single fibre of that feature of Mohammed, which symbolized his wisdom. So true is it that religion, like beauty, ‘draws us by a single hair.’

However, the Jews were to find, as part of their unique experience in history, that the beard a man wears is one thing and the beard another man wears is another thing. Certainly the resentment against another man’s beard is natural, universal, incurable, and implacable. It is not a casus belli — at least, one cannot find it in Grotius; nevertheless the Tartars waged war against the Persians because they liked not the cut of their beards. Unfortunately they did not have Grotius to consult; though perhaps, like other nations, they would not have consulted him at the crisis.

The whole question is momentous and affects the honor of nations. It is quite possible that some mighty potentate by the prodigious and exasperating tilt of his mustachios might involve the whole world in internecine strife. The League of Nations should consider whether this question is justiciable or not.

In like manner the surrounding nations derided the Hebrews and were no doubt glad of a chance to shave them by force; this may be the basis of the jape which the Amorites put upon the servants of David.

V

In early times Europeans also wore beards, but the general tendency was changed by Alexander the Great. The pen ruled until the advent of the sword. There are some who say that Alexander’s part in history was the organization of the world, the dissemination of a philosophy to inform and a language to articulate the doctrines of Christianity. And it is true that diligent students have extracted this theory from the maze of history; but Alexander’s obvious triumph was over the beards of Europe, and thereby of the world. He discountenanced the beard, and changed the face of Europe.

The learned Dr. Doran, who has written entertainingly but unsympathetically on the subject of beards, says that Alexander saw that the beard afforded a handle to the enemy. No doubt many a hairbreadth escape — or worse — resulted. Alexander’s order was popular with some, as military orders frequently are, but the conservatives arose in their power. Byzantium and Rhodes passed laws against cutting the beard. We might have expected this of Byzantium.

It is sufficient to say, as a justification for the laws against beards, that beards have always been an incentive to murder, as might be illustrated with many an incident in history. When Brennus and his Gauls invaded Rome, in 390 B.C., the bravest of the Romans took refuge in the Capitol, while, in order to impress the invaders, they left a number of aged and defenseless exconsuls seated on curule chairs, with their robes folded about them. ‘With calm and fixed eyes, they rested on their ivory staves. ’ Among them the ancient Papirius. like an

The barbarians at first were quite disposed to think that they gazed upon supernatural beings, but curiosity, ever the enemy of peace, or odious fate caused a Gaul to pass his hand over the beard of Papirius; so Papirius, Romanlike, struck him, and the Gaul, Gaullike, slew him out of hand. Instantly pillage and massacre! Nothing was spared. Above loomed the Capitol, saved by the quacking of the sapient geese; below, stiff and stark, sat in his curule chair and bloody robe Papirius, a martyr to his country and his beard.

How much of all this might have been spared if shaving had only been introduced from Greece ninety years earlier than it was (300 B.C.), history will never tell.

Queen Elizabeth introduced an impost or yearly tax of 3s. 4d. on a beard above a fortnight’s growth. Certainly she was a great admirer of beards, if the poet Gray may be trusted when he speaks of ‘My grave Lord Keeper,’ Sir Christopher Hatton, the lightfooted Chancellor, leading the dance before her: —

I should have thought that she had laid this tax for envy, except that a similar tax was imposed in the reign of King Edward VI for the same atrocious offense.

VI

But my subject is growing too long, and I am becoming entangled in it. I intend merely to comb out a few lively and pungent principles which run through it.

History furnishes many examples of the incentives to progress due to compulsory shaving. The first deflections of the Irish in the direction of civilization may be dated from 1446, when the Parliament held at Trim — no doubt incited thereto by the name — prescribed that Irishmen should shave their upper lips. No doubt this was done to inculcate that proper docility in which the Irish are such apt pupils. So in Lacedæmon the ephors, according to Aristotle, made ‘proclamation to the people that they should shave their moustaches, and be obedient to the laws.’ The idea was, as Plutarch intimates, that if young men would obey this they would obey anything.

Perhaps we should date from this Parliament also the practice of wearing only a chin beard, a habit believed by some to be endemic among the aged in some parts of the Emerald Isle.

Peter the Great saw the necessity of curbing the beards of the Muscovites, if Muscovy was to be admitted into the circle of civilized nations. Europe looked toward the East, and trembled. The horizon bristled with beards — a complete line of cheveux de frise stretched from the frozen regions of the North to the troubled waters of the Black Sea. Peter was not a man to take halfway measures when murder or any real principle was at stake, so he imposed a heavy line on beards and appointed officers to collect the lines — or the beards. This would have worked an immense benevolence to Europe if it had been carried out and continued; and yet Montesquieu says that this was a bad law! But the reform was not permanent. Beards grew again, and Russia, as might be expected, has fallen out of the civilized circle. So true is it that no nation lives to itself alone. The age-long contest is still unfinished, but the triumph of civilization tends to the utilitarian rule, and now every man who wears a beard is prima facie either a philosopher or a villain; intimate acquaintance often discovers him to be both.

We are now able to answer the proposition stated earlier in this paper, but unfortunately not as we hoped. It is evident that the pen is not mightier than the sword, but only a little mightier than the razor.

What strange principle is at the root of these laws? It has been often stated. It lies in the nature of power, which must always exert itself, and thereby extend its province. Would that we could call back the spirit of Penn, to whisper into the ear of all legislators that admonition which, with more force than elegance, he sent to his Deputy, Lloyd; ‘For God’s sake, me, and the poor country, do not be so governmentish.’

Knowledge comes, but the wisdom of moderation lingers. Doctors physic too much; preachers preach too much; legislators legislate too much; yes, and you will say writers write too much. I confess it, and yet the astute reader has discovered that all the requisites of a good law cited at the outset have now been illustrated with more or less directness. Some things in the science of legislation I may have left untouched. Let me, then, adopt the apology of Montesquieu: ’We must not always exhaust a subject, so as to leave no work for the reader. My business is not to make people read, but to make them think.’