it is comparatively easy to get a penal statute on the books. it is very hard to get it repealed. men are lazy and cowardly; politicians look for votes; members of legislatures and congress are not so much interested in finding out what should be done, as they are in finding out what the public thinks should be done. often a law lingers on the books long after the people, no longer believing the forbidden thing to be wrong, have repealed it. the statute stays, to be used by mischievous people and by those who believe in the particular law.
often the unthinking lay hold of a catch-word or a pet phrase and repeat and write it, as if it were the last word in social science and philosophy. general grant, when president, stumbled on such a silly combination of words, and surface-thinkers have been repeating it ever since, simply because it sounds wise and pat. grant once said that, "the way to repeal a bad law is to enforce it." grant was not a statesman nor a philosopher. he was a soldier. he probably heard some one use this phrase, and it sounded good to him. out of that has grown the further statement which courts and prosecutors have used to excuse themselves for the cruelty of enforcing a law that does violence to the feelings of the people. this statement is to the effect that so long as the law is on the books, it is the duty of officers to enforce it. the smallest investigation of the philosophy of law shows how silly and reactionary such statements are.
one thing should be remembered. laws really come from the habits, customs and feelings of the people, as interpreted or understood by legislative bodies. when these habits and customs are old enough they become the folk-ways of the people. legislatures and courts only write them down. when the folk-ways change the laws change, even though no legislature or judge has recorded their repeal.
since professor sumner of yale university wrote his important book, "folkways," there is no excuse for any student not knowing that this statement is true. as a matter of fact, no court ever enforced all the written laws, or ever would, or ever could. only a part of the discarded criminal law is ever repealed by other laws. the rest dies from neglect and lack of use. it is like the rudimentary parts of the human anatomy. man's body is filled with rudimentary muscles and nerves that, in the past, served a purpose. these were never removed by operations, but died from disuse. every criminal code is filled with obsolete laws, some of them entirely dead, others in the course of dissolution. they cannot be repealed by statute so long as an active minority insists that they remain on the books. when the great mass no longer wants them, it is useless to take the trouble to repeal them. the fugitive slave law was never believed in and never obeyed, and it was openly violated and defied by the great mass of the people of the north. the fourteenth and fifteenth amendments to the federal constitution, and the statutes passed to enforce them, providing political and civil equality for the black man, and forbidding discrimination on railroads, in hotels, restaurants, theatres and all public places, have never really been the law in any state in the union. their provisions have always been openly violated and no court would think of enforcing them, for the simple reason that public sentiment is against it. laws condemning witchcraft and sorcery both in europe and america did their deadly work and died, for the most part, without repeal. sabbath laws of all sorts forbidding work and play and amusements are dead letters on the statute books of most states, in spite of many attempts to galvanize them into life. all kinds of revenue laws are openly violated. most tax-payers of intelligence who own property violate the revenue law openly and notoriously, and all courts and officers as well as the public know it. many laws which interfere with the habits, customs and beliefs of a large number of people, like the prohibition laws, never receive the assent of so large a percentage as to make people conscious of any wrong in violating them, and therefore people break them when they can. often this class of laws is enforced upon offenders who believe the law is an unwarrantable interference with their rights, and thus causes convictions where no moral turpitude is felt.
every new crusade against crime not only sweeps away a large amount of work that has been slowly and patiently done toward a right understanding of crime, but likewise puts new statutes on the books which would not be placed there if the public were sane. when it does not do this, it increases penalties which work evil in other directions and awe courts, juries, governors and pardon boards, not only preventing them from listening to the voice of humanity and justice, but causing them to deny substantial rights and wreak vengeance and cruelty upon the weak and helpless.
