Much of the testimony in French courts, civil and martial, appears to
consist of personal impressions and opinions of the witnesses. All very
improper and mischievous, no doubt, if--if what? Why, obviously, if
the judges are unfit to sit in judgment By designating them to sit the
designating power assumes their fitness--assumes that they know enough
to take such things for what they are worth, to make the necessary
allowances; if needful, to disregard a witness's opinion altogether. I
do not know if they are fit. I do not know that they do make the needful
allowances. It is by no means clear to me that any judge or juror,
French, American or Patagonian, is competent to ascertain the truth when
lying witnesses are trying to conceal it under the direction of skilled
and conscientiousless attorneys licensed to deceive. But his competence
is a basic assumption of the law vesting him with the duty of deciding.
Having chosen him for that duty the French law very logically lets him
alone to decide for himself what is evidence and what is not. It does
not trust him a little but altogether. It puts him under conditions
familiar to him--makes him accessible to just such influences and
suasions as he is accustomed to when making conscious and unconscious
decisions in his personal affairs.
There may be a distinct gain to justice in permitting a witness to
say whatever he wants to say. If he is telling the truth he will not
contradict himself; if he is lying the more rope he is given the more
surely he will entangle himself. To the service of that end defendants
and prisoners should, I think, be compelled to testify and denied the
advantage of declining to answer, for silence is the refuge of guilt
In endeavoring by austere means to make an accused person incriminate
himself the French judge logically applies the same principle that a
parent uses with a suspected child. When the Grandfather of His Country
arraigned the wee George Washington for arboricide the accused was not
carefully instructed that he need not answer if a truthful answer would
tend to convict him. If he had refused to answer he would indubitably
have been lambasted until he did answer, as right richly he would have
deserved to be.
The custom of permitting a witness to wander at will over the entire
field of knowledge, hearsay, surmise and opinion has several distinct
advantages over our practice. In giving hearsay evidence, for example,
he may suggest a new and important witness of whom the counsel for the
other side would not otherwise have heard, and who can then be brought
into court. On some unguarded and apparently irrelevant statement he may
open an entirely new line of inquiry, or throw upon the case a flood
of light. Everyone knows what revelations are sometimes evoked by
apparently the most insignificant remarks. Why should justice be denied
a chance to profit that way?
There is a still greater advantage in the French "method." By giving a
witness free rein in expression of his personal opinions and feelings we
should be able to calculate his frame of mind, his good or ill will
to the prosecution or defense and, therefore, to a certain extent his
credibility. In our courts he is able by a little solemn perjury to
conceal all this, even from himself, and pose as an impartial witness,
when in truth, with regard to the accused, he is full of rancor or
reeking with compassion.
In theory our system is perfect. The accused is prosecuted by a public
officer, who having no interest in his conviction, will serve the State
without mischievous zeal and perform his disagreeable task with fairness
and consideration. He is permitted to entrust his defense to another
officer, whose duty it is to make a rigidly truthful and candid
presentation of his case in order to assist the court to a just
decision. The jurors, if there are jurors, are neither friendly nor
hostile, are open-minded, intelligent and conscientious. As to the
witnesses, are they not sworn to tell the truth, the whole truth (in
so far as they are permitted) and nothing but the truth? What could
be finer and better than all this?--what could more certainly assure
justice? How close the resemblance is between this ideal picture and
what actually occurs all know, or should know. The judge is commonly
an ignoramus incapable of logical thought and with little sense of the
dread and awful nature of his responsibility. The prosecuting attorney
thinks it due to his reputation to "make a record" and tries to convict
by hook or crook, even when he is himself persuaded of the defendant's
innocence. Counsel for the defense is equally unscrupulous for
acquittal, and both, having industriously coached their witnesses,
contend against each other in deceiving the court by every artifice
of which they are masters. Witnesses on both sides perjure themselves
freely and with almost perfect immunity if detected. At the close of it
all the poor weary jurors, hopelessly bewildered and dumbly resentful of
their duping, render a random or compromise verdict, or one which best
expresses their secret animosity to the lawyer they like least or their
faith in the newspapers which they have diligently and disobediently
read every night Commenting upon Rabelais' old judge who, when impeached
for an outrageous decision, pleaded his defective eye-sight which made
him miscount the spots on the dice, the most distinguished lawyer of my
acquaintance seriously assured me that if all the cases with which he
had been connected had been decided with the dice substantial justice
would have been done more frequently than it was done. If that is true,
or nearly true, and I believe it, the American's right to sneer at the
Frenchman's "judicial methods" is still an open question.
It is urged that the corrupt practices in our courts of law be uncovered
to public view, whenever that is possible, by dial impeccable censor,
the press. Exposure of rascality is very good--better, apparently
for rascals than for anybody else, for it usually suggests something
rascally which they had overlooked, and so familiarizes the public with
crime that crime no longer begets loathing. If the newspapers of the
country are really concerned about corrupter practices than their own
and willing to bring our courts up to the English standard there is
something better than exposure--which fatigues. Let the newspapers set
about creating a public opinion favorable to non-elective judges, well
paid, powerful to command respect and holding office for life or good
behavior. That is the only way to get good men and great lawyers on the
Bench. As matters are, we stand and cry for what the English have and
rail at the way they get it. Our boss-made, press-ridden and mob-fearing
paupers and ignoramuses of the Bench give us as good a quality of
justice as we merit A better quality awaits us whenever the will to have
it is attended by the sense to take it.