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 phrase _contra 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 it _is_ deemed 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
tend_ to criminate them _in any way_, or subject them to _possible_
prosecution." 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 fitting _finale_ to 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 both _suppressio veri_ and
_suggestio 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 around
That ambidextrous consciences abound
In courts of law to do the dirty work
That self-respecting scavengers would shirk.
What then? Who serves however clean a plan
By 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 its _personnel_ is 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.