"Our mountaineers are not law breakers, Lizzie," the Colonel was saying with more than ordinary sharpness in defense of his guest—and of his State. "They keep the law extraordinarily well."
"How can you make such a statement!" the good lady cried. "I constantly hear of men being killed up in that wicked country!"
"It's very much exaggerated, as Brent would say," he chuckled. "At any rate," he cleared his throat, "I refer to the common law."
Bob and Brent exchanged winks. They knew the old gentleman was getting frightfully tangled, and were curious to see how he would work himself out of it.
"Then I suppose you mean," her voice rang with the challenge, "that killing people is compatible with the common law?"
"Legal hangings are," he smiled blandly. "But, what I do seriously mean is this: the common law of a country, and therefore the common law of a place, is merely—and nothing more than—a common custom plus the power to change that custom. This being the case, the mountaineer of Kentucky is within the common law of his section, providing that he kills only within that section where it is a common custom—plus the power to change that custom."
Miss Liz sighed. "It doesn't sound like good sense," she said, "but may be correct. I have always thought that law is law, everywhere."
"Law is law, my dear," he gently explained to her, "until it is changed; certainly. But it is not always good sense. Take our waterways hereabouts! They are every one governed by the same old law of riparian rights which we took from England, whose waterways are no more like those in this country than threads are like ropes. And, moreover, England's law was construed long before the dream of artificial power, having to do merely with streams adapted to navigation. Who cared then for a falls or rapids? Who would have been mad enough to think of bridled electricity? So today, these falls and rapids, which are quite out of the question for navigable purposes, but possess as great a value in other respects to the people at large, are entirely demoralized through the application of an antiquated law framed to deal with streams of a totally different character. Don't you see, my dear, how fallible may be the thing called law if it runs counter to public good? And does it not show you that every common law must be—in order to be sensible—a consensus of public consent? Therefore, do I maintain that the mountaineers of our proud State, who in common consent prosecute their own feuds in their own domain, are within the common law of that domain. Some day, when Brent's and other railroads have poured into them a different civilization, their environment will be changed;—there will arise amongst them a giant to turn things upside down—as Jeremy Bentham threw defiance to the law of diodens."
The Colonel now, having distorted a little knowledge into a great flow of verbal pyrotechnics which hopelessly confused and downed Miss Liz, turned back to Nancy with a satisfied smile.
"Wasn't diodens a sort of old law that confiscated anything which destroyed life?" Brent, in an undertone, asked Jane.