Chapter 13

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.

COMMENCEMENT ADMONITION

It is quite evident that with, the multiplication of colleges, which is very rapid, it will, before long, become impossible for the newspapers to furnish the reports of the proceedings in and about commencement which they now lay before their readers with such profuseness. The long letters describing with wearisome minuteness what has been described already fifty times will undoubtedly before long be given up. So also, we fancy, will the reports of the "baccalaureate sermons," if these addresses are to retain their value as pieces of parting advice to young men. There is nothing in the newspaper literature, on the whole, less edifying, and sometimes more amusing, than the reporter's _précis_ of pulpit discourses, so thoroughly does he deprive them of force find vigor and point, and often of intelligibility. The ordinary sermon addressed on Sunday to the ordinary congregation deals with a great variety of topics, and from many different points of view, and with more or less diversity of method. The baccalaureate sermon, on the other hand, consists, from the necessity of the case, in the main of advice to youths at their entrance on life, and the substance of such discourses can, in the nature of things, undergo no great change from year to year, and must be strikingly similar in all the colleges. Any freshness they may have they must owe to the rhetorical powers of particular preachers, and even these cannot greatly vary in dealing with so familiar a theme. What the old man has to say to the young man, the teacher to the pupil, the father to the son, at the moment when the gates of the great world are flung open to the college graduate, has undergone but little modification in a thousand years, and has become very well known to all collegians long before they take their degree. To make the parting words of warning and encouragement tell on ears that are now eager for other and louder sounds, everything that can be done needs to be done to preserve their freshness and their pathos, and certainly nothing could do as much to deprive them of both one and the other as hashing them up annually in a slovenly report as part of the news of the day.

It is not, however, the advice contained in baccalaureate sermons, but all advice to young men, that needs in our time to be dealt out with greater circumspection and economy. Authority has within the last hundred or even fifty years undergone a serious loss of power, and this loss of power has shown itself nowhere more markedly than in the work of education. It has indeed almost completely changed the relation of parents and children, and teachers and scholars, so that it is now almost as necessary to prove the reasonableness and utility of any course of action which is required of boys as of mature men. Persuasion has, in other words, taken the place of command, and there is nobody left whose dictum owes much of its weight to his years or his office. Boys as well as their elders now expect advice to be based on personal experience, and do not listen with any great seriousness or deference to admonitions the value of which the utterer has not himself personally tested.