cerned, it is going
to be of man, for every official finds that the letter of the law works
an injustice many times out of a hundred. If he is worth his salary he
will try to temper justice with mercy. If he is human he will endeavor
to accomplish justice as he sees it so long as the law can be stretched
to accommodate the case. Thus, inevitably there is a conflict
between the law and its application. It is the human element in the
administration of the law that enables lawyers to get a living. It is
usually not difficult to tell what the law is; the puzzle is how it
is going to be applied in any individual case. How it is going to be
applied depends very largely upon the practical side of the matter and
the exigencies of existing conditions.

It is pretty hard to apply inflexibly laws over a hundred years old. It
is equally hard to police a city of a million or so polyglot inhabitants
with a due regard to their theoretic constitutional rights. But suppose
in addition that these theoretic rights are entirely theoretic and fly
in the face of the laws of nature, experience, and common sense? What
then? What is a police commissioner to do who has either got to make an
illegal arrest or let a crook get away, who must violate the rights of
men illegally detained by outrageously "mugging" them or egregiously
fail to have a record of the professional criminals in his bailiwick?
He does just what all of us do under similar conditions--he "takes a
chance." But in the case of the police the thing is so necessary that
there ceases practically to be any "chance" about it. They have got to
prevent crime and arrest criminals. If they fail they are out of a
job, and others more capable or less scrupulous take their places. The
fundamental law qualifying all systems is that of necessity. You can't
let professional crooks carry off a voter's silverware simply because
the voter, being asleep, is unable instantly to demonstrate beyond
a reasonable doubt that his silver has been stolen. You can't permit
burglars to drag sacks of loot through the streets of the city at 4 A.M.
simply because they are presumed to be innocent until proven guilty. And
if "arrest on suspicion" were not permitted, demanded by the public,
and required by the police ordinances, away would go the crooks and off
would go the silverware, the town would be full of "leather snatchers"
and "strong-arm men," respectable citizens would be afraid to go out o'
nights, and li