"I have my gold watch and chain," returned Jones. "You can have them and welcome—only let me go!"
The bargain was struck then and there and the transfer from Jones' pockets to those of McDuff effected. Unfortunately, however, Jones next day discovered that Holahan harbored no ill-will against him and that the supposed officer was nothing of the kind. Rising in his wrath, he in turn procured a warrant for McDuff and caused his arrest and indictment. The trial came off and despite Gottlieb's best efforts his client was convicted by the jury of stealing Jones' watch, chain, and money by falsely representing himself to be an officer of the law. The case went on appeal to the Supreme Court, which affirmed the conviction, and there seemed no escape for McDuff from a term in prison.
One evening Gottlieb and I got talking about the case among other things.
"How is it," said I, "that the criminal law will step in and give a man back his money when, under precisely the same circumstances, the civil law will let him whistle?"
"What mean you by that?" asked my partner.
"Why," answered I, "the civil law will not settle disputes between thieves, it will not enforce an equitable division of stolen property, and it will not compel rogues to keep a dishonest contract between themselves. Now this fellow, Jones, it seems to me, was almost as bad as your friend McDuff. He tried to induce a man he thought was a sworn officer of the law to violate his oath and disregard his duty. Why should the criminal law do anything for him? Why should it hand him back his money as if he were an innocent and honest man?"
"It is an ingenious argument," replied Gottlieb, scratching his ear; "and yet it is poppycock for all that. The criminal law is to punish criminals. According to your reasoning, two wrongs would make a right and two thieves one honest man. Would you let McDuff go unpunished simply because he was clever enough to induce Jones to try to break the law as well as himself? Why, any judge would laugh you out of court on such a proposition."
"But," I retorted, "surely, if I gave you a hundred dollars for the purpose of bribing a judge and you failed to accomplish your purpose, no court would assist me to recover the money. 'Twould be against public policy and contra bonos mores."
"Even so," answered my partner, "would it not be more contra bonos mores to let a thief go unpunished, once he had been arrested? Take my word, Quib, there's nothing in it," insisted Gottlieb warmly. "For instance, there is the crime against usury—a very foolish law to be sure, but there it is. No one can commit usury unless some one else participates in the offense by paying the unlawful interest; but the usurer does not escape on that account. Why, then, should the false pretender in our case?"
"I admit the force of your analogy," said I, "and I could easily suggest others myself. Bribery, for instance; extortion and many other offences, where the law does not refrain from punishing the one because the other is equally guilty. But the cases differ in that, in bribery, the briber is seeking to influence the acts of an official; and, in extortion, the law imputes an element of force which is supposed to overcome the will of the person paying the money. I am not so clear on your usury. Still, I believe there is a fighting chance to win the case on my theory."