There has been during the week a loud and increasing demand for
the application of the legal process of discovering truth to the
Tilton-Beecher case. People ask that it be carried into court, not
only because all witnesses might thus be compelled to appear and
testify, but because apparently there is, in the minds of many, a
peculiar virtue in "the rules of evidence" used by lawyers.
Witnesses examined under these rules are supposed to receive from
them a strong stimulus in veracity and explicitness, while they at
once expose prevarication or concealment. One newspaper eulogist
went so far the other day as to pronounce the rules the product of
the wisdom of all ages, beginning with the Phoenicians and coming
down to our own time. There is, however, only one good reason that
we know of for carrying any attack on character into court, and that
is the obvious one, that the courts only can compel those who are
supposed to know anything about a matter of litigation to appear and
state it. But we do not know of any other advantage which can be
claimed for a trial in court, in such a case, over a trial before a
well-selected lay tribunal. "The rules of evidence" in use in our
courts are not, as too many persons seem to suppose, deductions from
the constitution of the human mind, or, in other words, natural
rules for the discovery of truth under all conditions. On the
contrary, they are a system of artificial presumptions created for
the use of a tribunal of a somewhat low order of intelligence, and
are intended to produce certain well-defined and limited results,
which the law considers generally beneficial. They have, that is to
say, grown up for the use of the jury. The large number of
exclusions which they contain are due simply to a desire to prevent
jurymen's being confused by kinds of testimony which they are not
supposed to have learning or acumen enough to weigh. If anyone will
go into the City Hall and listen to the trial of even a trifling
cause, he will find that the proceedings consist largely in the
attempt of one lawyer to have certain facts laid before the jury and
the attempts of the other to prevent it, the judge sitting as
arbiter between them and applying the rules of admission and
exclusion to each of these facts as it comes up. If he examines,
too, in each instance what it is that is thus pertinaciously offered
and pertinaciously opposed, he will find that it almost invariably
has _something_ to do with the controversy before the court--it may
be near or more remote--but still something. Consequently it has,
logically, a certain bearing on the case, or is, under the
constitution of the human mind, proper evidence. When the judge says
it is irrelevant, he does not mean that it is logically irrelevant;
he means that it has been declared irrelevant on certain grounds of
expediency by the system of jurisprudence which he administers. He
refuses to let it go to the jury because he thinks it would befog
them or turn their attention away from the "legal issue" or, in
other words, from the one little point on which the law compels
the plaintiff and defendant to concentrate their dispute, in order
to render it triable at all by the peculiar tribunal which the
Anglo-Saxon race has chosen for the protection of its rights.
It follows that our rules of evidence are unknown on the European
continent and in every country in which courts are composed of
judges only--that is, of men with special training and capacity for
the work of weighing testimony--or in which the legal customs have
been created by such courts. There the litigants follow the natural
order, and carry with them before the bench everything that has any
relation to the case whatever, and leave the court to examine it and
allow it its proper force. Our own changes in the law of evidence
are all in this direction. The amount of excluded testimony--that
is, of testimony with which we are afraid to trust the jury--has
been greatly diminished during the last few years, and, considering
the growth of popular intelligence, properly diminished. The
tendency of legislation now is toward letting the jury hear
everybody--the plaintiff and defendant, the prisoner, the wife, the
husband, and the witness with a pecuniary interest in the result of
the trial--and put its own estimate on what the testimony amounts
to. But nevertheless, even now, who is there that has ever watched
the preparation of a cause for trial who has not listened to
lamentations over the difficulty or impossibility of getting this or
that important fact before the jury, or has not witnessed elaborate
precautions, on one side or another, to prevent some fact from
getting before the jury? The skill of a counsel in examining or
cross-examining a witness, for instance, is shown almost as much by
what he avoids bringing out as by what he brings out, and no witness
is allowed to volunteer any statement lest he should tell something
which, however pertinent in reality, the rules pronounce
inadmissible.
Now, rules of this kind are singularly unsuited to the conduct of
inquiries touching character. It is true the law provides a process
nominally for the vindication of character, called an action for
libel, but the remedy it supplies is not a vindication properly so
called, but a sum of money as a kind of penalty on the libeller, not
for having assailed you, but for not having been able to prove his
case under the rules of evidence. In a suit for libel, too, the
parties fight their battle in the strict legal order--the plaintiff,
that is to say, stands by and challenges the defendant to produce
his proofs, and then fights bitterly through his counsel to keep out
as much of the proof as he can. He supplies no evidence himself that
is not strictly called for, and proffers no explanation that does
not seem necessary to procure an award of pecuniary damages, and
takes all the pains possible to bring confusing influences to bear
on the jury. When we consider, too, that the jury is composed of men
who may be said to be literally called in from the street, without
the slightest regard to their special qualifications for the conduct
of any inquiry, and that they are apt to represent popular passions
and prejudices in all conspicuous and exciting cases, we easily see
why a trial by a jury, under the common-law rules of evidence, is
not the process through which a high-minded man who sought not for
"damages," but to keep his reputation absolutely spotless in the
estimation of his neighbors, would naturally seek his vindication.
It cannot be too often said, in these times when great reputations
are so often assailed and so often perish, that nobody who has not
deliberately chosen the life of a stoical recluse is justified
either in refusing to defend his reputation or in defending it by
technical processes if any others are within his reach. It is, of
course, open to any man to say that he cares nothing for the opinion
of mankind, and will not take the trouble to influence it in any
manner in regard to himself. But, if he says so, he is bound not to
identify with himself, in any manner, either great interests or
great causes. If he makes himself the champion of other people's
rights, or the exponent of important principles, or has through any
power of his achieved an influence over other people's minds
sufficiently great to make it appear that certain doctrines or ideas
must stand or fall by him, he has surrendered his freedom in all
that regards the maintenance of his fame.
It is no longer his only to maintain. It has become, as it were,
embodied in popular morality, been made the basis of popular hopes,
and a test under which popular faith or approval is bestowed on a
great variety of ways and means of living. Such a man is bound to
defend himself from the instant at which he finds the assaults on
him begin to tell on the public conception of his character.
Dignified reserve is a luxury in which it is not permitted to him to
indulge; and when he comes to defend himself, it must not be with
the calculating shrewdness of the strategist or tactician. The only
rules of evidence of which he can claim the benefit are the laws of
the human mind. The tribunal, too, before which he seeks reparation
should not be what the state supplies only, but the very best he can
reach, and it should, if possible, be composed of men with no motive
for saving him and with no reason for hating him, and with such
training and experience as may best fit them for the task of
weighing his enemy's charges and his own excuses and explanations.
His course before such a tribunal, too, should be marked by ardor
rather than by prudence. He should chafe under delay, clamor for
investigation, and invite scrutiny, and put away from him all
advisers whose experience is likely to incline them to chicane or
make them satisfied with a technical victory. Such men are always
dangerous in delicate cases. He should not wait for his accuser to
get in all his case if the substantial part of it is already before
the court, because his answer ought not, as in a court of law, to
cover the complaint simply and no more. It ought to contain a plain
unvarnished tale of the whole transaction, and not those parts only
which the accusation may have touched, because his object is not
only to wrest a verdict of "not proven" from his judges, but to
satisfy even the timid and sensitive souls whose faith in their
idols is so large a part of their moral life, not only that he is
not guilty, but that he never even inclined toward guilt.