Ye who hold that the power of eloquence is a thing of the past and the orator an anachronism; who believe that the trend of political events and the results of parliamentary action are determined by committees in cold consultation and the machinations of programmes in holes and corners, consider the ascension of Bryan and be wise. A week before the convention of 1896 William J. Bryan had never heard of himself; upon his natural obscurity was superposed the opacity of a Congressional service that effaced him from the memory of even his faithful dog, and made him immune to dunning. Today he is pinnacled upon the summit of the tallest political distinction, gasping in the thin atmosphere of his unfamiliar environment and fitly astonished at the mischance. To the dizzy elevation of his candidacy he was hoisted out of the shadow by his own tongue, the longest and liveliest in Christendom. Had he held it—which he could not have done with both hands—there had been no Bryan. His creation was the unstudied act of his own larynx; it said, "Let there be Bryan," and there was Bryan. Even in these degenerate days there is a hope for the orators when one can make himself a Presidential peril by merely waving the red flag in the cave of the winds and tormenting the circumjacence with a brandish of abundant hands.
To be quite honest, I do not entirely believe that Orator Bryan's tongue had anything to do with it. I have long been convinced that personal persuasion is a matter of animal magnetism—what in its more obvious manifestation we now call hypnotism. At the back of the words and the postures, and independent of them, is that secret, mysterious power, addressing, not the ear, not the eye, nor, through them, the understanding, but through its matching quality in the auditor, captivating the will and enslaving it That is how persuasion is effected; the spoken words merely supply a pretext for surrender. They enable us to yield without loss of our self-esteem, in the delusion that we are conceding to reason what is really extorted by charm. The words are necessary, too, to point out what the orator wishes us to think, if we are not already apprised of it. When the nature of his power is better understood and frankly recognized, he can spare himself the toil of talking. The parliamentary debate of the future will probably be conducted in silence, and with only such gestures as go by the name of "passes." The chairman will state the question before the House and the side, affirmative or negative, to be taken by the honorable member entitled to the floor. That gentleman will rise, train his compelling orbs upon the miscreants in opposition, execute a few passes and exhaust his alloted time in looking at them. He will then yield to an honorable member of dissenting views. The preponderance in magnetic power and hypnotic skill will be manifest in the voting. The advantages of the method are as plain as the nose on an elephant's face. The "arena" will no longer "ring" with anybody's "rousing speech," to the irritating abridgment of the inalienable right to pursuit of sleep. Honorable members will lack provocation to hurl allegations and cuspidors. Pitchforking statesmen and tosspot reformers will be unable to play at pitch-and-toss with reputations not submitted for the performance. In short, the congenial asperities of debate will be so mitigated that the honorable member from Hades will retire permanently from the hauls of legislation.
"Public opinion," says Buckle, "being the voice of the average man, is the voice of mediocrity." Is it therefore so very wise and infallible a guide as to be accepted without other credentials than its name and fame? Ought we to follow its light and leading with no better assurance of the character of its authority than a count of noses of those following it already, and with no inquiry as to whether it has not on many former occasions let them and their several sets of predecessors into bogs of error and over precipices to "eternal mock?" Surely "the average man," as every one knows him, is not very wise, not very learned, not very good; how is it that his views, of so intricate and difficult matters as those of which public opinion makes pronouncement through him are entitled to such respect? It seems to me that the average man, as I know him, is very much a fool, and something of a rogue as well. He has only a smattering of education, knows virtually nothing of political history, nor history of any kind, is incapable of logical, that is to say clear, thinking, is subject to the suasion of base and silly prejudices, and selfish beyond expression. That such a person's opinions should be so obviously better than my own that I should accept them instead, and assist in enacting them into laws, appears to me most improbable. I may "bow to the will of the people" as gracefully as a defeated candidate, and for the same reason, namely, that I can not help myself; but to admit that I was wrong in my belief and flatter the power that subdues me—no, that I will not do. And if nobody would do so the average man would not be so very cock-sure of his infallibility and might sometimes consent to be counseled by his betters.
In any matter of which the public has imperfect knowledge, public opinion is as likely to be erroneous as is the opinion of an individual equally uninformed. To hold otherwise is to hold that wisdom can be got by combining many ignorances. A man who knows nothing of algebra can not be assisted in the solution of an algebraic problem by calling in a neighbor who knows no more than himself, and the solution approved by the unanimous vote of ten million such men would count for nothing against that of a competent mathematician. To be entirely consistent, gentlemen enamored of public opinion should insist that the text books of our common schools should be the creation of a mass meeting, and all disagreements arising in the course of the work settled by a majority vote. That is how all difficulties incident to the popular translation of the Hebrew Scriptures were composed. It should be admitted, however that most of those voting knew a little Hebrew, though not much. A problem in mathematics is a very simple thing compared with many of those upon which the people are called to pronounce by resolution and ballot—for example, a question of finance.
"The voice of the people is the voice of God"—the saying is so respectably old that it comes to us in the Latin. He is a strange, an unearthly politician who has not a score of times publicly and solemnly signified his faith in it But does anyone really believe it? Let us see. In the period between 1859 and 1885, the Democratic party was defeated six times in succession. The voice of the people pronounced it in error and unfit to govern. Yet after each overthrow it came back into the field gravely reaffirming its faith in the principles that God had condemned. Then God twice reversed Himself, and the Republicans "never turned a hair," but set about beating Him with as firm a confidence of success (justified by the event) as they had known in the years of their prosperity. Doubtless in every instance of a political party's defeat there are defections, but doubtless not all are due to the voice that spoke out of the great white light that fell about Saul of Tarsus. By the way, it is worth observing that that clever gentleman was under no illusion regarding the origin of the voice that wrought his celebrated "flop"; he did not confound it with thevox populiThe people of his time and place had no objection to the persecution that he was conducting, and could persecute a trifle themselves upon occasion.
Majorities rule, when they do rule, not because they ought, but because they can. We vote in order to learn without fighting which party is the stronger; it is less disagreeable to learn it that way than the other way. Sometimes the party that is numerically the weaker is by possession of the Government actually the stronger, and could maintain itself in power by an appeal to arms, but the habit of submitting when outvoted is hard to break. Moreover, we all recognize in a subconscious way, the reasonableness of the habit as a practical method of getting on; and there is always the confident hope of success in the next canvass. That one's cause will succeed because it ought to succeed is perhaps the most general and invincible folly affecting the human judgment Observation can not shake it, nor experience destroy. Though you bray a partisan in the mortar of adversity till he numbers the strokes of the pestle by the hairs of his head, yet will not this fool notion depart from him. He is always going to win the next time, however frequently and disastrously he has lost before. And he can always give you the most cogent reasons for the faith that is in him. His chief reliance is on the "fatal mistakes" made since the last election by the other party. There never was a year in which the party in power and the party out of power did not make bad mistakes—mistakes which, unlike eggs and fish, seem always worst when freshest. If idiotic errors of policy were always fatal, no party would ever win an election and there would be a hope of better government under the benign sway of the domestic cow.
Each political party accuses the "opposing candidate" of refusing to answer certain questions which somebody has chosen to ask him. I think myself it is discreditable for a candidate to answer any questions at all, to make speeches, declare his policy, or to do anything whatever to get himself elected. If a political party choose to nominate a man so obscure that his character and his views on all public questions are not known or inferable he ought to have the dignity to refuse to expound them. As to the strife for office being a pursuit worthy of a noble ambition, I do not think so; nor shall I believe that many do think so until the term "office seeker" carries a less opprobrious meaning and the dictum that "the office should seek the man, not the man the office," has a narrower currency among all manner of persons. That by acts and words generally felt to be discreditable a man may evoke great popular enthusiasm is not at all surprising. The late Mr. Barnum was not the first nor the last to observe that the people love to be humbugged. They love an impostor and a scamp, and the best service that you can do for a candidate for high political preferment is to prove him a little better than a thief, but not quite so good as a thug.
The view is often taken that a representative is the same thing as a delegate; that he is to have, and can honestly entertain, no opinion that is at variance with the whims and the caprices of his constituents. This is the veryreductio ad absurdumof representative government. That it is the dominant theory of the future there can be little doubt, for it is of a piece with the progress downward which is the invariable and unbroken tendency of republican institutions. It fits in well with manhood suffrage, rotation in office, unrestricted patronage, assessment of subordinates, an elective judiciary and the rest of it. This theory of representative institutions is the last and lowest stage in our pleasant performance of "shooting Niagara." When it shall have universal recognition and assent we shall have been fairly engulfed in the whirlpool, and the buzzard of anarchy may hopefully whet his beak for the national carcass. My view of the matter—which has the further merit of being the view held by those who founded this Government—is that a man holding office from and for the people is in conscience and honor bound to do what seems to his judgment best for the general welfare, respectfully regardless of any and all other considerations. This is especially true of legislators, to whom such specific "instructions" as constituents sometimes send are an impertinence and an insult. Pushed to its logical conclusion, the "delegate" idea would remove all necessity of electing men of brains and judgment; one man properly connected with his constituents by telegraph would make as good a legislator as another. Indeed, as a matter of economy, one representative should act for many constituencies, receiving his instructions how to vote from mass meetings in each. This, besides being logical, would have the added advantage of widening and hardening the power of the local "bosses," who, by properly managing the showing of hands could have the same beneficent influence in national affairs that they now enjoy in municipal. The plan would be a pretty good one if there were not so many other ways for the Nation to go to the Devil that it appears needless.
With a wiser wisdom than was given to them, our forefathers in making the Constitution would not have provided that each House of Congress "shall be the judge of the elections, returns and qualifications of its own members." They would have foreseen that a ruling majority of Congress could not safely be trusted to exercise this power justly in the public interest, but would abuse it in the interest of party. A man's right to sit in a legislative body should be determined, not by that body, which has neither the impartiality, the knowledge of evidence nor the time to determine it rightly, but by the courts of law. That is how it is done in England, where Parliament voluntarily surrendered the right to say by whom the constituencies shall be represented, and there is no disposition to resume it. As the vices hunt in packs, so, too, virtues are gregarious; if our Congress had the righteousness to decide contested elections justly it would have also the self-denial not to wish to decide them at all.
The purpose of the legislative custom of "eulogizing" dead members of Congress is not apparent unless it is to add a terror to death and make honorable and self-respecting members rather bear the ills they have than escape through the gates of death to others that they know a good deal about. If a member of that kind, who has had the bad luck to "go before," could be consulted he would indubitably say that he was sorry to be dead; and that is not a natural frame of mind in one who is exempt from the necessity of himself "delivering a eulogy."
It may be urged that the Congressional "eulogy" expresses in a general way the eulogist's notion of what he would like to have somebody say of himself when he is by death elected to the Lower House. If so, then Heaven help him to a better taste. Meanwhile it is a patriotic duty to prevent him from indulging at the public expense the taste that he has. There have been a few men in Congress who could speak of the character and services of a departed member with truth and even eloquence. One such was Senator Vest. Of many others, the most charitable thing that one can conscientiously say is that one would a little rather hear a "eulogy" by them than on them. Considering that there are many kinds of brains and only one kind of no brains, their diversity of gifts is remarkable, but one characteristic they have in common: they are all poets. Their efforts in the way of eulogium illustrate and illuminate Pascal's obscure saying that poetry is a particular sadness. If not sad themselves, they are at least the cause of sadness in others, for no sooner do they take to their legs to remind us that life is fleeting, and to make us glad that it is, than they burst into bloom as poets all! Some one has said that in the contemplation of death there is something that belittles. Perhaps that explains the transformation. Anyhow the Congressional eulogist takes to verse as naturally as a moth to a candle, and with about the same result to his reputation for sense.
The poetry is commonly not his own; what it violates every law of sense, fitness, metre, rhyme and taste it is. But nine times in ten it is some dog's-eared, shop-worn quotation from one of the "standard" bards, usually Shakspere. There are familiar passages from that poet which have been so often heard in "the halls of legislation" that they have acquired an infamy which unfits them for publication in a decent family newspaper; and Shakspere himself, reposing in Elysium on his bed of asphodel and moly, omits them when reading his complete works to the shades of Kit Marlowe and Ben Jonson, for their sins.
This whole business ought to be "cut out" It is not only a waste of time and a sore trial to the patience of the country; it is absolutely immoral. It is not true that a member of Congress who, while living was a most ordinary mortal, becomes by the accident of death a hero, a saint, "an example to American youth." Nobody believes these abominable "eulogies," and nobody should be permitted to utter them in the time and place designated for another purpose. A "tribute" that is exacted by custom and has not the fire and light of spontaneity is without sincerity or sense. A simple resolution of regret and respect is all that the occasion requires and would not inhibit any further utterance that friends and admirers of the deceased might be moved to make elsewhere. If any bereaved gentlemen, feeling his heart getting into his head, wishes to tickle his ear with his tongue by way of standardizing his emotion let him hire a hall and do so. But he should not make the Capitol a "Place of Wailing" and the Congressional Record a book of bathos.
THERE is a difference between religion and the amazing circumstructure which, under the name of theology, the priesthoods have builded round about it, which for centuries they made the world believe was the true temple, and which, after incalculable mischiefs wrought, immeasurable blood spilled in its extension and consolidation, is only now beginning to crumble at the touch of reason. There is the same difference between the laws and the law—the naked statutes (bad enough, God knows) and the incomputable additions made to them by lawyers. This immense body of superingenious writings it is that we all are responsible to in person and property. It is unquestionable authority for setting aside any statute that any legislative body ever passed or can pass. In it are dictates of recognized validity for turning topsy-turvy every principle of justice and reversing every decree of reason. There is no fallacy so monstrous, no deduction so hideously unrelated to common sense, as not to receive, somewhere in the myriad pages of this awful compilation, a support that any judge in the land would be proud to recognize with a decision if ably persuaded. I do not say that the lawyers are altogether responsible for the existence of this mass of disastrous rubbish, nor for its domination of the laws. They only create and thrust it down our throats; we are guilty of contributory negligence in not biting the spoon.
As long as there exists the right of appeal there is a chance of acquittal. Otherwise the right of appeal would be a sham and an insult more intolerable, even, than that of the man convicted of murder to say why he should not receive the sentence which nothing he may say will avert. So long as acquittal may ensue guilt is not established. Why, than are men sentenced before they are proved guilty? Why are they punished in the middle of proceedings against them? A lawyer can reply to these questions in a thousand ingenious ways; there is but one answer. It is because we are a barbarous race, submitting to laws made by lawyers for lawyers. Let the "legal fraternity" reflect that a lawyer is one whose profession it is to circumvent the law; that it is a part of his business to mislead and befog the court of which he is an officer; that it is considered right and reasonable for him to live by a division of the spoils of crime and misdemeanor; that the utmost atonement he ever makes for acquitting a man whom he knows to be guilty is to convict a man whom he knows to be innocent. I have looked into this thing a bit and it is my judgment that all the methods of our courts, and the traditions of bench and bar exist and are perpetuated, altered and improved, for the one purpose of enabling the lawyers as a class to exact the greatest amount of money from the rest of mankind. The laws are mostly made by lawyers, and so made as to encourage and compel litigation. By lawyers they are interpreted and by lawyers enforced for their own profit and advantage. The whole intricate and interminable machinery of precedent, rulings, decisions, objections, writs of error, motions for new trials, appeals, reversals, affirmations and the rest of it, is a transparent and iniquitous systems of "cinching." What remedy would I propose? None. There is none to propose. The lawyers have "got us" and they mean to keep us. But if thoughtless children of the frontier sometimes rise to tar and feather the legal pelt may God's grace go with them and amen. I do not believe there is a lawyer in Heaven, but by a bath of tar and a coating of hen's-down they can be made to resemble angels more nearly than by any other process.
The matchless villainy of making men suffer for crimes of which they may eventually be acquitted is consistent with our entire system of laws—a system so complicated and contradictory that a judge simply does as he pleases, subject only to the custom of giving for his action reasons that at his option may or may not be derived from the statute. He may sternly affirm that he sits there to interpret the law as he finds it, not to make it accord with his personal notions of right and justice. Or he may declare that it could never have been the Legislature's intention to do wrong, and so, shielded by the useful phrasecontra bonos mores, pronounce that illegal which he chooses to consider inexpedient. Or he may be guided by either of any two inconsistent precedents, as best suits his purpose. Or he may throw aside both statute and precedent, disregard good morals, and justify the judgment that he wishes to deliver by what other lawyers have written in books, and still others, without anybody's authority, have chosen to accept as a part of the law. I have in mind judges whom I have observed to do all these things in a single term of court, and could mention one who has done them all in a single decision, and that not a very long one. The amazing feature of the matter is that all these methods are lawful—made so, not by legislative enactment, but by the judges. Language can not be used with sufficient lucidity and positiveness to land them.
The legal purpose of a preliminary examination is not the discovery of a criminal; it is the ascertaining of the probable guilt or innocence of the person already charged. To permit that person's counsel to insult and madden the various assisting witnesses in the hope of making them seem to incriminate themselves instead of him by statements that may afterward be used to confuse a jury—that is perversion of law to defeat justice. The outrageous character of the practice is seen to better advantage what contrasted with the tender consideration enjoyed by the person actually accused and presumably guilty—the presumption of his innocence being as futile a fiction as that a sheep's tail is a leg when called so. Actually, the prisoner in a criminal trial is the only person supposed to have a knowledge of the facts who is not compelled to testify! And this amazing exemption is given him by way of immunity from the snares and pitfalls with which the paths of all witnesses are wantonly beset! To a visiting Lunarian it would seem strange indeed that in a Terrestrial court of justice it is not deemed desirable for an accused person to incriminate himself, and that itisdeemed desirable for a subpoena to be more dreaded than a warrant.
When a child, a wife, a servant, a student—any one under personal authority or bound by obligation of honor—is accused or suspected an explanation is demanded, and refusal to testify is held, and rightly held, a confession of guilt To question the accused—rigorously and sharply to examine him on all matters relating to the offense, and even trap him if he seem to be lying—that is Nature's method of criminal procedure; why in our public trials do we forego its advantages? It may annoy; a person arrested for crime must expect annoyance. It can not make an innocent man incriminate himself, not even a witness, but it can make a rogue do so, and therein lies its value. Any pressure short of physical torture or the threat of it, that can be put upon a rogue to make him assist in his own undoing is just and therefore expedient.
This ancient and efficient safeguard to rascality, the right of a witness to refuse to testify when his testimony would tend to convict him of crime, has been strengthened by a decision of the United States Supreme Court. That will probably add another century or two to its mischievous existence, and possibly prove the first act in such an extension of it that eventually a witness can not be compelled to testify at all. In fact it is difficult to see how he can be compelled to now if he has the hardihood to exercise his constitutional right without shame and with an intelligent consciousness of its limitless application.
The case in which the Supreme Court made the decision was one in which a witness refused to say whether he had received from a defendant railway company a rate on grain shipments lower than the rate open to all shippers. The trial was in the United States District Court for the Northern District of Illinois, and Judge Gresham chucked the scoundrel into jail. He naturally applied to the Supreme Court for relief, and that high tribunal gave joy to every known or secret malefactor in the country by deciding—according to law, no doubt—that witnesses in a criminal case can not be compelled to testify to anything that "might tendto criminate themin any way, or subject them topossibleprosecution." The italics are my own and seem to me to indicate, about as clearly as extended comment could, the absolutely boundless nature of the immunity that the decision confirms or confers. It is to be hoped that some public-spirited gentleman called to the stand in some celebrated case may point the country's attention to the state of the law by refusing to tell his name, age or occupation, or answer any question whatever. And it would be a fittingfinaleto the farce if he would threaten the too curious attorney with an action for damages for compelling a disclosure of character.
Most lawyers have made so profound a study of human nature as to think that if they have shown a man to be of loose life with regard to women they have shown him to be one that would tell needless lies to a jury—a conviction unsupported by the familiar facts of life and character. Different men have different vices, and addiction to one kind of "upsetting sin" does not imply addiction to an unrelated kind. Doubtless a rake is a liar in so far as is needful to concealment, but it does not follow that he will commit perjury to save a horsethief from the penitentiary or send a good man to the gallows. As to lying, generally, he is not conspicuously worse than the mere lover, male or female; for lovers have been liars from the beginning of time. They deceive when it is necessary and when it is not. Schopenhauer says that it is because of a sense of guilt—they contemplate the commission of a crime and, like other criminals, cover their tracks. I am not prepared to say if that is the true explanation, but to the fact to be explained I am ready to testify with lifted arms. Yet no cross-examining attorney tries to break the credibility of a witness by showing that he is in love.
An habitual liar, if disinterested, makes about as good a witness as anybody. There is really no such thing as "the lust of lying:" falsehoods are told for advantage—commonly a shadowy and illusory advantage, but one distinctly enough had in mind. Discerning no opportunity to promote his interest, tickle his vanity or feed a grudge, the habitual liar will tell the truth. If lawyers would study human nature with half the assiduity that they give to resolution of hairs into their longitudinal elements they would be better fitted for service of the devil than they have now the usefulness to be.
I have always asserted the right and expediency of cross-examining attorneys in court with a view to testing their credibility. An attorney's relation to the trial is closer and more important than that of a witness. He has more to say and more opportunities to deceive the jury, not only by naked lying, but by bothsuppressio veriandsuggestio falsi. Why is it not important to ascertain his credibility; and if an inquiry into his private life and public reputation will assist, as himself avers, why should he not be put upon the grill and compelled to sweat out the desired incrimination? I should think it might give good results, for example, to compel him to answer a few questions touching, not his private life, but his professional. Somewhat like this:
"Did you ever defend a client, knowing him to be guilty?"
"What was your motive in doing so?"
"But in addition to your love of fair play had you not also the hope and assurance of a fee?"
"In defending your guilty client did you declare your belief in his innocence?"
"Yes, I understand, but necessary as it may have been (in that it helped to defeat justice and earn your fee) was not your declaration a lie?"
"Do you believe it right to lie for the purpose of circumventing justice?—yes or no?"
"Do you believe it right to lie for personal gain—yes or no?"
"Then why did you do both?"
"A man who lies to beat the laws and fill his purse is—what?"
"In defending a murderer did you ever misrepresent the character, acts, motives and intentions of the man that he murdered—never mind the purpose and effect of such misrepresentation—yes or no?"
"That is what we call slander of the dead, is it not?"
"What is the most accurate name you can think of for one who slanders the dead to defeat justice and promote his own fortune?"
"Yes, I know—such practices are allowed by the 'ethics' of your profession, but can you point to any evidence that they are allowed by Jesus Christ?"
"If in former trials you have obstructed justice by slander of the dead, by falsely affirming the innocence of the guilty, by cheating in argument, by deceiving the court whom you are sworn to serve and assist, and have done all this for personal gain, do you expect, and is it reasonable for you to expect, the jury in this case to believe you?"
"One moment more, please. Did you ever accept an annual, or other fee conditioned on your not taking any action against a corporation?"
"While in receipt of such refrainer—I beg you pardon, retainer—did you ever prosecute a blackmailer?"
It will be seen that in testing the credibility of a lawyer it is needless to go into his private life and his character as a man and a citizen: his professional practices are an ample field in which to search for offenses against man and God. Indeed, it is sufficient simply to ask him: "What is your view of 'the ethics of your profession' as a suitable standard of conduct for a pirate of the Spanish Main?"
The moral sense of the laymen is dimly conscious of something wrong in the ethics of the noble profession; the lawyers affirming, rightly enough, a public necessity for them and their mercenary services, permit their thrift to construe it vaguely as personal justification. But nobody has blown away from the matter its brumous encompassment and let in the light upon it It is very simple.
Is it honorable for a lawyer to try to clear a man that he knows deserves conviction? That is not the entire question by much. Is it honorable to pretend to believe what you do not believe? Is it honorable to lie? I submit that these questions are not answered affirmatively by showing the disadvantage to the public and to civilization of a lawyer refusing to serve a known offender. The popular interest, like any other good cause, can be and commonly is, served by foul means. Justice itself may be promoted by acts essentially unjust. In serving a sordid ambition a powerful scoundrel may by acts in themselves wicked augment the prosperity of a whole nation. I have not the right to deceive and lie in order to advantage my fellowmen, any more than I have the right to steal or murder to advantage them, nor have my fellowmen the power to grant me that indulgence.
The question of a lawyer's right to clear a known criminal (with the several questions involved) is not answered affirmatively by showing that the law forbids him to decline a case for reasons personal to himself—not even if we admit the statute's moral authority. Preservation of conscience and character is a civic duty, as well as a personal; one's fellow-men have a distinct interest in it. That, I admit, is an argument rather in the manner of an attorney; clearly enough the intent of this statute is to compel an attorney to cheat and lie for any rascal that wants him to. In that sense it may be regarded as a law softening the rigor of all laws; it does not mitigate punishments, but mitigates the chance of incurring them. The infamy of it lies in forbidding an attorney to be a gentleman. Like all laws it falls something short of its intent: many attorneys, even some who defend that law, are as honorable as is consistent with the practice of deceit to serve crime.
It will not do to say that an attorney in defending a client is not compelled to cheat and lie. What kind of defense could be made by any one who did not profess belief in the innocence of his client?—did not affirm it in the most serious and impressive way?—did not lie? How would it profit the defense to be conducted by one who would not meet the prosecution's grave asseverations of belief in the prisoner's guilt by equally grave assurances of faith in his innocence? And in point of fact, when was counsel for the defense ever known to forego the advantage of that solemn falsehood? If I am asked what would become of accused persons if they had to prove their innocence to the lawyers before making a defense in court, I reply that I do not know; and in my turn I ask: What would become of Humpty Dumpty if all the king's horses and all the king's men were an isosceles triangle?
It all amounts to this, that lawyers want clients and are not particular about the kind of clients that they get All this is very ugly work, and a public interest that can not be served without it would better be unserved.
I grant, in short, 'tis better all aroundThat ambidextrous consciences aboundIn courts of law to do the dirty workThat self-respecting scavengers would shirk.What then? Who serves however clean a planBy doing dirty work, he is a dirty man.
But in point of fact I do not "grant" any such thing. It is not for the public interest that a rogue have the same freedom of defense as an honest man; it should be a good deal harder for him. His troubles should begin, not when he seeks acquital, but when he seeks counsel. It would be better for the community if he could not obtain the services of a reputable attorney, or any attorney at all. A defense that can not be made without his attorney's actual knowledge of his guilt should be impossible to him. Nor should he be permitted to remain off the witness stand lest he incriminate himself. It ought to be the aim of the court to let him incriminate himself—to make him do so if his testimony will. In our courts that natural method would serve the ends of justice greatly better than the one that we have. Testimony of the guilty would assist in conviction; that of the innocent would not.
As to the general question of a judge's right to inflict arbitrary punishment for words that he may be pleased to hold disrespectful to himself or another judge, I do not myself believe that any such right exists; the practice seems to be merely a survival—a heritage from the dark days of irresponsible power, when the scope of judicial authority had no other bounds than fear of the royal gout or indigestion. If in these modern days the same right is to exist it may be necessary to revive the old checks upon it by restoring the throne. In freeing us from the monarchial chain, the coalition of European Powers commonly known in American history as "the valor of our forefathers" stripped us starker than they knew.
Suppose an attorney should find his client's interests imperiled by a prejudiced or corrupt judge—what is he to do? If he may not make representations to that effect, supporting them with evidence, where evidence is possible and by inference where it is not, what means of protection shall he venture to adopt? If it be urged in objection that judges are never prejudiced nor corrupt I confess that I shall have no answer: the proposition will deprive me of breath.
If contempt is not a crime it should not be punished; if a crime it should be punished as other crimes are punished—by indictment or information, trial by jury if a jury is demanded, with all the safeguards that secure an accused person against judicial blunders and judicial bias. The necessity for these safeguards is even greater in cases of contempt than in others—particularly if the prosecuting witness is to sit in judgment on his own grievance. That should, of course, not be permitted: the trial should take place before another judge.
Why should twelve able-bodied jurymen, with their oaths to guide them and the law to back, submit to the dictation of one small judge armed with nothing better than an insolent assumption of authority? A judge has not the moral right to order a jury to acquit, the utmost that he can rightly do is to point out what state of the law or facts may seem to him unfavorable to conviction. If the jurors, holding a different view, persist in conviction the accused will have grounds, doubtless, for a new trial. But under no circumstances is a judge justified in requiring a responsible human being to disregard the solemn obligation of an oath.
The public ear is dowered with rather more than just enough of clotted nonsense about "attacks upon the dignity of the Bench," "bringing the judiciary into disrepute" and the rueful rest of it. I crave leave to remind the solicitudinarians sounding these loud alarums on their several larynges that by persons of understanding men are respected, not for what they do, but for what they are, and that one public functionary will stand as high in their esteem as another if as high in character. The dignity of a wise and righteous judge needs not the artificial safeguarding which is a heritage of the old days when if dissent found a tongue the public executioner cut it out. The Bench will be sufficiently respected when it is no longer a place where dullards dream and rogues rob—when itspersonnelis no longer chosen in the back-rooms of tipple-shops, forced upon yawning conventions and confirmed by the votes of men who neither know what the candidates are nor what they should be. With the gang that we have and under our system must continue to have, respect is out of the question and ought to be. They are entitled to just as much of its forms and observances as are needful to maintenance of order in their courts and fortification of their lawful power—no more. As to their silence under criticism, that is as they please. No body but themselves is holding their tongues.
A law under which the unsuccessful respondent in a divorce proceeding may be forbidden to marry again during the life of the successful complainant, the latter being subject to no such disability, is infamous infinitely. If the disability is intended as a punishment it is exceptional among legal punishments in that it is inflicted without conviction, trial or arraignment, the divorce proceedings being quite another and different matter. It is exceptional in that the period of its continuance, and therefore the degree of its severity, are indeterminate; they are dependent on no limiting statute, and on neither the will of the power inflicting nor the conduct of the person suffering.
To sentence a person to a punishment that is to be mild or severe according to chance or—which is even worse—circumstance, which but one person, and that person not officially connected with administration of justice, can but partly control, is a monstrous perversion of the main principles that are supposed to underlie the laws.
In "the case at bar" it can be nothing to the woman—possibly herself remarried—whether the man remarries or not; that is, can affect only her feelings, and only such of them as are least creditable to her. Yet her self-interest is enlisted against him to do him incessant disservice. By merely caring for her health she increases the sharpness of his punishment—for punishment it is if he feels it such; every hour that she wrests from death is added to his "term." The expediency of preventing a man from marrying, without having the power to prevent him from making his marriage desirable in the interest of the public and vital to that of some woman, is not discussable here. If a man is ever justified in poisoning a woman who is no longer his wife it is when, by way of making him miserable, the State has given him, or he supposes it to have given him, a direct and distinct interest in her death.
With a view, possibly, to promoting respect for law by making the statutes so conform to public sentiment that none will fall into disesteem and disuse, it has been advocated that there be a formal recognition of sex in the penal code, by making a difference in the punishment of men and of women for the same crimes and misdemeanors. The argument is that if women were "provided" with milder punishment juries would sometimes convict them, whereas they now commonly get off altogether.
The plan is not so new as might be thought. Many of the nations of antiquity of whose laws we have knowledge, and nearly all the European nations until within a comparatively recent time, punished women differently from men for the same offenses. And as recently as the period of the Early Puritan in New England women were punished for some offenses which men might commit without fear if not without reproach. The ducking-stool, for example, was an appliance for softening the female temper only. In England women used to be burned at the stake for crimes for which men were hanged, roasting being regarded as the milder punishment. In point of fact, it was not punishment at all, the victim being carefully strangled before the fire touched her. Burning was simply a method of disposing of the body so expeditiously as to give no occasion and opportunity for the unseemly social rites commonly performed about the scaffold of the erring male by the jocular populace. As lately as 1763 a woman named Margaret Biddingfield was burned in Suffolk as an accomplice in the crime of "petty treason." She had assisted in the murder of her husband, the actual killing being done by a man; and he was hanged, as no doubt he richly deserved. For "coining," too (which was "treason"), men were hanged and women burned. This distinction between the sexes was maintained until the year of grace 1790, after which female offenders ceased to have "a stake in the country," and like Hood's martial hero, "enlisted in the line."
In still earlier days, before the advantages of fire were understood, our good grandmothers who sinned were admonished by water—they were drowned; but in the reign of Henry III a woman was hanged—without strangulation, apparently, for after a whole day of it she was cut down and pardoned. Sorceresses and unfaithful wives were smothered in mud, as also were unfaithful wives among the ancient Burgundians. The punishment of unfaithful husbands is not of record; we only know that there were no austerely virtuous editors to direct the finger of public scorn their way.
Among the Anglo-Saxons, women who had the bad luck to be detected in theft were drowned, while men meeting with the same mischance died a dry death by hanging. By the early Danish laws female thieves were buried alive, whether or not from motives of humanity is not now known. This seems to have been the fashion in France also, for in 1331 a woman named Duplas was scourged and buried alive at Abbeville, and in 1460 Perotte Mauger, a receiver of stolen goods, was inhumed by order of the Provost of Paris in front of the public gibbet. In Germany in the good old days certain kinds of female criminals were "impaled," a punishment too grotesquely horrible for description, but likely enough considered by the simple German of the period conspicuously merciful.
It is, in short, only recently that the civilized nations have placed the sexes on an equality in the matter of the death penalty for crime, and the new system is not yet by any means universal. That it is a better system than the old, or would be if enforced, is a natural presumption from human progress, out of which it is evolved. But coincidently with its evolution has evolved also a sentiment adverse to punishment of women at all. But this sentiment appears to be of independent growth and in no way a reaction against that which caused the change. To mitigate the severity of the death penalty for women to some pleasant form of euthanasia, such as drowning in rose-water, or in their case to abolish the death penalty altogether and make their capital punishment consist in a brief interment in a jail with a softened name, would probably do no good, for whatever form it might take, it would be, so far as woman is concerned, the "extreme penalty" and crowning disgrace, and jurors would be as reluctant to inflict it as they now are to inflict hanging.