EVIDENCE ABOUT CHARACTER

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.

Reflections and Comments 1865-1895 · 第 26 / 33 题