The proceedings in the recent Bravo poisoning case have raised a
good deal of discussion in England as to the license of counsel in
cross-examination--a question which recent trials in this country
have shown to possess no little interest for us also. In the Bravo
inquest, as in the Tichborne case and the Beecher trial of the last
year, the cross-examination of the witnesses was pushed into matters
very remotely connected with the issue under trial, so that the
general result of the inquiry was not, as in most cases, the
eliciting of a certain number of facts bearing on the question in
court, but a complete revelation of the whole private life of a
family, or of a certain part of it, and even of a whole circle of
families. The glaring exposure of matters usually kept close, and
not even talked about, formed in fact the great fascination of these
_causes célèbres_. It was difficult at the first blush to see how in
the Beecher trial Tilton's eccentric nocturnal habits could have
thrown any light upon the question of Beecher's guilt; nor in the
Tichborne case was it at all apparent that an answer to the inquiry
put to some witness--whether he had, at some distant period of time,
had improper relations with some persons not connected with the
case--could even remotely tend to settle the claimant's identity.
The _Pall Mall Gazette_, discussing this kind of cross-examination
resorted to for the purpose of breaking down the credit of a
witness--of "showing him up" to the jury, and thus inducing them to
pay less attention to his evidence than they otherwise would--has
stated the case in the following manner: "Suppose, it says, that the
legislature of a free country were some fine morning to pass a law
authorizing anyone who chose to take it into his head to compel any
inhabitant of the country to answer any questions he might think fit
to put with regards to the other's moral character, his relations
with his parents, brothers and sisters, wife and children, his
business affairs, his property, his debts, and in fact his whole
private life, and to do all this without there being any dispute
between them or even any alleged grievance, what would be thought of
such a law? Would it be endured for an instant?" Now, this, the
_Pall Mall Gazette_ continues, is to-day the law of England. It is
just to this odious tyranny which anyone, by bringing a suit, can,
under the vague and almost unlimited power to punish for "contempt
of court," force submission.
The law on this subject is, generally speaking, the same in the
United States as in England, and this tyranny, if it really exists,
weighs upon us as heavily as it does upon Englishmen. The first
question that suggests itself is whether this is really a fair
statement of law, and, of course, the _Pall Mall Gazette_ admits
that there exist limitations of the right of cross-examination, but
it contends that these are so undefined as to amount to little or
nothing in the way of protection. The authorities contain little on
the subject, except that cross-examination as to credit is allowed
to go very far, and that judges may in their discretion stop it when
it goes too far. But judicial discretion is proverbially an
uncertain thing. It varies not merely with the court, but even in
the same judge it is affected by the state of his temper, his
curiosity, his feeling toward the counsel who is examining, and by
thousands of other things that no one can know anything about or
depend upon. Usually it is easier not to exercise than to exercise
discretion, and the result is that the right of cross-examination is
usually unchecked, and in most important cases which are widely
reported the right is pushed to lengths which, with witnesses of any
sensibility, amount to a process of slow torture. If the right is
abused in England, it is unquestionably abused here, and probably at
the time of the Beecher trial we should have had complaints about it
but for the fact that in the singular society in which the parties
to that case lives, a craving for notoriety had been developed which
made any discussion of their private affairs less disagreeable than
it is to most people. But with the great majority of mankind there
is nothing more odious than the extraction, by a sharp, hostile
lawyer, from their own unwilling lips, of the details of their moral
history. There is probably no one in existence, however good, and
however quiet his conscience may be, who can endure without a
shudder the thought of every transaction of his past life being
dragged out in a court of justice for the amusement of a gaping
crowd. Exactly how far the right is abused, and how far the
discretionary powers of courts to limit its abuse accomplish their
end, it is impossible to say, for it is only in sporadic cases of
unusual importance that interest in the result is strong enough to
warrant a lawyer's going to great length in cross-examination.
Usually, too, it should be said for the credit of the profession,
reputable lawyers shrink from outraging a witness's sensibility. But
after everything is admitted that can be admitted in favor of the
existing state of the law, it is impossible to deny that the door is
left very wide open to disgraceful assaults upon credit which
inflict serious and irreparable damage.
The difficulty is not in pointing out the evil, which is plain
enough, but in suggesting a remedy. The right of cross-examination
is one of the most important instruments provided by the machinery
of our law for the discovery of facts, and on the credibility of
witnesses all cases hinge. The moment we begin to limit it by fixed
rules we enter on dangerous ground. It might seem as if the solution
of the problem lay in the enactment of a rule that witnesses should
only be cross-examined as to their general reputation with regard to
truth, and as to the matters involved in the case directly affecting
their credibility; but this would by no means do. Suppose, for
instance, that the suit is a common action for the purchase-money of
a piece of cloth, and the defendant brings a witness who swears
that he saw the defendant pay the money to the plaintiff, while
the plaintiff has only his own evidence to rely upon in proof of
non-payment; if, in such case, the plaintiff were merely allowed to
cross-examine the witness directly, he would in all probability lose
the case. The testimony would be two to one against him, and the
story of the witness as the only disinterested person would probably
be believed by the jury. But suppose that, on cross-examination, it
turns out that this witness can give no good account of his manner
of earning his living or of his place of residence; that he had been
arrested not long before as a vagrant, and that down to the time of
the action he had no respectable clothes, and that he suddenly
became possessed of some; that he deserted from the army immediately
after getting his bounty-money, and so on, there can be little doubt
that his credit with the jury would be much impaired, and justly so,
although no direct evidence of his being a perjurer had been
introduced, and not a particle of his testimony had been strictly
controverted. Everyone who has followed with any care the evidence
taken in celebrated murder trials or divorce cases knows how
frequently a rigid cross-examination lays bare motives and
prejudices on the part of witnesses which, often without their
knowing it themselves, tend to bias their account of facts.
The problem, therefore, is to devise some means by which these
benefits of a searching cross-examination may be retained and yet
the abuse got rid of. The only feasible way of meeting the
difficulty yet proposed is that of drawing up a series of rules or
general directions as to evidence which shall not attempt to
prescribe formal limits for cross-examination, but shall lay down in
explicit words the general principles which should govern a judge in
such cases. These rules would practically be a definition of the
"discretion" he is now supposed to exercise. They would, for
example, direct him not to allow an examination into matters so
remote in time from the case in hand that they can have no bearing
on the credibility of the witness; not to allow questions to be put
which are plainly malicious and asked for the purpose of irritating
the witness; and not to allow any examination into transactions
which, though they may have a bearing on the character of a witness,
have none on his credibility, _e.g._, an inquiry, in a murder case,
of a witness in good standing, as to domestic difficulties with a
deceased wife. It is not easy to lay down beforehand any rules by
which we can discriminate the kind of evidence as to transactions
involving moral character which ought not to affect credibility, but
every one can easily imagine instances of such evidence. General
directions of the kind we have just suggested are no more than a
formal enunciation of the manner in which the "discretion" of a good
judge would be and is exercised. They do not change the law, but
they remind judges of what they may forget, and they may be appealed
to by a persecuted witness with far more certainty than judicial
"discretion." In the Indian Code, which is probably the best body of
law that the legal reform movement begun by Bentham in the last
century has yet produced, rules of this kind have been laid down,
and we believe have been found to work with success.
"THE DEBTOR CLASS"
A Washington correspondent, describing, the other day, the motives
which animated the majority in Congress in its performances on
the currency question, said, and we believe truly, that most of
the inflationists in that body knew very well what the evils of
paper-money were, so that argument on that point was wasted on them.
But they knew also that large issues of irredeemable paper would
make it easier for debtors to pay off their creditors, and came to
the conclusion that as the number of debtors in the country was
greater than the number of creditors, it was wise policy for a
politician to curry favor with the former by helping them to cheat
the persons who had lent them money or sold them goods. This
explanation of the conduct of the majority may be a startling and
sad one, but that it is highly probable nobody can deny. All the
debates help to confirm it. In every speech, made either in
opposition to resumption or in favor of inflation, a portion of the
community known as "the debtor class" has appeared as the object of
the orator's tenderest solicitude. The great reason for not
returning to specie payments hitherto has been the fear that
contraction would press hard on "the debtor class;" it is for "the
debtor class" we need more paper "_per capita_;" and indeed, no
matter what proposal we make in the direction of financial reform,
we are met by pictures of the frightful effects which will be
produced by it on the "debtor class." Moreover, in listening to its
champions, a foreigner might conclude that in America debtors either
all live together in a particular part of the country, or worse, a
particular costume, like mediaeval Jews, and are divided from the
rest of the community by tastes and habits, so that it would be
proper for an American to put "debtor" or "creditor" on his card as
a description of his social status. He might, too, not unnaturally
begin to mourn over the negligence of the framers of the
Constitution in not recognizing this marked distribution of American
society. Truly, he would say, the debtors ought to have
representatives in the Senate and House to look after their special
interests; these unfortunate and helpless men ought not to be left
to the charitable care of volunteers like Messrs. Morton, and Logan,
and Kelly. The great sham and pretence with which America has so
long tried to impose on Europe, that there were no classes in the
United States, ought at last to be formally swept away, and proper
legal provision made for the protection of a body of men which has
been in all ages the object of atrocious oppression, and seems in
America, strange to say, to constitute the larger portion of the
community. In travelling through the country, too, he would be
constantly on the lookout for the debtors. He would ask in the
cities for the "debtors' quarter," and when introduced to a
gentleman in the cars or in the hotels, would inquire privately
whether he was a debtor or a creditor, so as to avoid hurting his
feelings by indiscreet allusion to specie or contraction. His
amazement would be very great on learning that there was no way of
telling whether an American citizen was either debtor or creditor;
that the "debtor class" was not to be found, as such, in any part of
the country, or, indeed, anywhere but in the brains of the Logans
and Mortons, and was introduced into the debates simply as a John
Doe or Richard Roe, to give a little vividness to the speaker's
railings against property.
Now, as in every civilized society, the vast majority of the
population of this country are in debt, to some slight degree. It is
only paupers, criminals, and lunatics who owe absolutely nothing.
The day-laborer is pretty sure to have a small bill at the grocer's,
and all his neighbors, in the ascending grades of commercial
respectability, no matter how prompt and accurate they may be in the
discharge of their obligations, are sure to owe the butcher and
baker and milkman a greater or less amount. In fact the conduct of
life on a cash basis would be impossible or intolerable. Of course,
too, there are scattered all over the country men who owe a great
deal of money and to whom little is due, and whose interest it would
be to have the coinage adulterated. But then the number of these
persons is very small, and they are mostly great speculators, who
pass for rich men, and whose interests Congress is in reality not in
the least desirous of protecting. Poor men, as a rule, are hardly
ever greatly in debt, because nobody will trust them. We suspect
that the number of those in this city who could borrow fifty dollars
without security would not be found to be over one-twentieth of the
population. The persons to whom loans are made by banks, insurance
companies, and other institutions are almost all men of wealth or
men who have the conduct of great enterprises, and do not need
legislation to help them to take care of themselves. They are great
merchants, or manufacturers, or brokers, or contractors, or
railroad-builders. In fact, in so far as the debtors can be called a
class, they form a very small class, and a class of remarkable
shrewdness and of enormous power, over whom it is ludicrous for the
Government to exercise a fatherly care.
The bulk of the population in this, as in every moderately
prosperous community in the western world is composed of creditors.
The creditor class, in other words, contains the great body of the
American people, and any legislation intended to enable debtors to
cheat is aimed at nineteen-twentieths, at the very least, of
American citizens. Any mail who remains very long in the position of
a debtor simply, and acquires no footing as a creditor, disappears
from the surface of society. Bankruptcy or the house of correction
is pretty sure to overtake him. It would be well-nigh impossible in
this large city or in any other to find a man who had no pecuniary
claims on someone else. The humblest hod-carrier becomes a creditor
every day after making his first ascent of the ladder, and remains
so until Saturday night, and continually replaces himself in "the
creditor class," as long as life and health remain to him; and the
same phenomenon presents itself in all fields of industry. Every
sewing-girl and maid-servant is looking forward to a payment of
earned money, and has the strongest interest in knowing for certain
what its purchasing power will be.
All depositors in savings-banks, and their number in New York City
is greater than that of the voters, belong to the creditor class;
all holders of policies of insurances, all owners of government
bonds and State and bank stocks, belong to it also. The Western
farmers and house-owners who have borrowed money at the East on bond
and mortgage, who probably make as near an approach to a debtor
class as any other body or persons in the community, and whom
Congressional demagogues probably hoped to serve by enabling them to
outwit their creditors, even these are not simply or mainly debtors.
Any man who is carrying on his business with borrowed money, on
which he pays eight or ten per cent., must be every week putting
other people in debt to him or he would speedily be ruined. The
means of paying those who have trusted him is acquired by his
trusting others. Either he is selling goods on credit, or entering
into contracts, or rendering services which give him the position of
a creditor, and make it of the last importance to him that the value
of money and the state of the public mind about money should not be
materially different six months hence from what they are now.
Of course there is more than one way of defining the term
"self-interest." There is one sense in which it is used by children,
savages, and thieves, and which makes it mean immediate
gratification, and this appears to be the sense in which it is used
by the inflationists in Congress, in considering what is for the
good of those Western men who owe money at the East. In that sense,
it is a good thing for a man to lie, cheat, steal, and embezzle
whenever it shall appear that by so doing he will satisfy his
appetites or put money in his pockets. But civilized and commercial,
to say nothing of Christian, society is founded on the theory that
men look forward and expect to carry on business for several years,
and to lay up money for their old age, and establish their children
in life, and that they recognize the necessity of self-restraint and
loyalty to engagements. The doctrines, on the other hand, which are
preached in Congress about the best mode of dealing with debts--that
is, with other people's money--have never before been heard in a
civilized legislature, or anywhere outside of a council of
buccaneers, and, if acted on by the community, would produce
anarchy. The fact that Morton and Butler, who preach them and get
them embodied in forms of words called "acts," are legislators,
disguises, but ought not to disguise, the other fact, that these two
men are simply playing the part of receivers or "fences." There
probably never was a more striking illustration of the immorality in
which, as it was long ago remarked, any principle of government is
sure to land people if pushed to its last extreme, than the theory
which is now urged on our attention--that superiority of numbers
will justify fraud; or, in other words, that if the number of those
who borrow should happen to be greater than the number of those who
lend, "a vote" is all that is needed to wipe out the debts, either
openly or by payment in bits of paper or pebbles. Of course, the
converse of this would also be true--that if the lenders were in a
majority, they would be justified in reducing the debtors to
slavery. If the question of humanity or brotherhood were raised as
an objection, that, too, could be settled by a ballot. We laugh at
the poor African who consults his wooden fetish before he takes any
step in the business of his wretched and darkened life; but when a
Caucasian demagogue tries to show us that the springs of justice and
truth are to be found in a comparison of ten thousand bits of paper
with nine thousand similar bits, we listen with gravity, and are
half inclined to believe that there is something in it.