Chapter II (2)

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.

It follows, therefore, that the persons whom the young men of our time hear most readily on the conduct of life are those who have had practical acquaintance with the difficulties of living up to the ideals which are so eloquently painted in the college chapel, and who have found out in their own persons what it costs to be pure and upright, and faithful and industrious, and persistent in the struggle that goes on in the various callings which lie outside the college walls. For this reason, probably, no addresses at commencement have the value of those which are delivered now and then by men who have come back for a brief day to tell the next generation of the way life looks to those who for years have been wrestling with its problems, and have had actual experience of the virtues and defects of that early equipment and training on which such enormous sums are now spent in this country. The more advice from this quarter young men get the better. Nobody can talk so effectively to them at the moment when they are about to face the world on their own responsibility as the lawyers and merchants and ministers and politicians who have been facing it for twenty-five or thirty years with all the outward signs of success. If it were possible for every college in the country to get one such man at commencement whose powers of expression would do justice to his experience, and who for this one day in the year would without fear or favor tell what he thought about success and about the conditions of success--about the kind of troubles which beset men in the callings with which he is most familiar--we should probably soon have a body of advice so impressive and fruitful that it would serve the needs and excite the interest of more than one generation. The young have been told to be good until they have grown weary of hearing it, particularly as it is always represented to them as a comparatively simple matter, and when they go out in the world and find what a hard and complex thing duty is they are very apt to look back to the ethical instruction of their college as when in college they looked back to the admonitions of the nursery, and return to their alma mater in later years with much the feeling with which a man visits a kindly old grandmother.

But commencements certainly draw forth nothing so curious as the newspaper article addressed to the graduating class, and which now seems to be a regular part of the summer's editorial work. It seems to have one object in view, and only one, and that is preventing the graduate from thinking much of his education and his degree, or supposing that they will be of any particular use to him in his entrance on life, or make him any more acceptable to the community. He is warned that they will raise him in nobody's estimation, and prove rather a hinderance than a help to him in getting a living, and that it will be well for him to begin his career by trying to forget that he has ever been in college at all. Not unfrequently the discourse closes with a suggestion or hint that the best university is, after all, the office of "a great daily," and that the kindest thing a fond father could do for a promising boy would be to start him as a local reporter and make him get his first experience of life in the collection of "city items." There is in all this the expression, though in a somewhat grotesque form, of a widespread popular feeling that nothing is worthy of the name of education which does not fit a man to earn his bread rapidly and dexterously. Considering with how large a proportion of the human race the mere feeding and clothing of the body is the first and hardest of tasks, there is nothing at all surprising in this view. But the preservation and growth of civilization in any country depends much on the extent to which it is able out of its surplus production to provide some at least of its people with the means of cherishing and satisfying nobler appetites than hunger and thirst. The immense sum which is now spent every year on colleges--misspent though much of it may be--and the increasing number of students who throng to them, regardless of the fact that the training they get may make them at first feel a little strange and helpless in the fierce struggle for meat and drink, show that the increasing wealth of the nation is accompanied by an increasing recognition of the fact that life, after all, is not all living, that there are gains which cannot be entered in any ledger, and that a man may carry about with him, through a long and it may be outwardly unfortunate career, sources of pleasure and consolation which are none the less precious for being unsalable and invisible.

"ORGANS"

The untimely decease of the _Republic_, the paper which was set up some months ago to express in a semi-official way the views of the Administration and its immediate adherents on public questions, has a good deal that is tragic about it, as far as its principal conductor is concerned. That a man of as much experience of politics and of newspapers as Mr. Norvell, the editor, had, should have supposed it possible to start a daily morning paper in this city at a time when a successful daily is worth millions, and when there are four already in possession of the field, without any other claims on popular attention than its being the mouth-piece of the leading politicians of the party in power, and with a capital which in his dreams only reached $500,000, and in fact only $40,000, is a curious though sad illustration of the power of the press over the imagination even of persons long familiar with it. The failure of the enterprise, however distressing in some of its aspects, is valuable as establishing more conspicuously and firmly than ever two facts of considerable importance in relation to journalism. One is, that when politicians so deeply desire an organ as to be willing to set one up for the exclusive use of the party, it is a sure sign that the party is in serious danger of extinction. The other is, that the public mind is so fully made up that the position of a newspaper ought to be a judicial one, that all attempts to make a paper avowedly partisan can only be saved from commercial failure by large capital, extraordinary ability, and well-established prestige.

"Organs" took their rise when the sole use of a newspaper was to communicate intelligence, and when men in power found it convenient to have a channel through which they could let out certain things which they wished to be spread abroad. Out of this kind of relation to the Government a small paper, which did not object to the humble _rôle_ of a sort of official gazette, from which the earlier newspapers indeed differed but little, could, of course, always get a livelihood, and perhaps a little of the dignity which comes from having or being supposed to have state secrets to keep. But the gradual addition to the "news-letter" of the sermon known as a "leader" or "editorial article" made the relation more and more difficult and finally impossible. The more pompous, portentous, and prophetic in their character the editor's comments on public affairs became, the less disposed was the public to allow him to retain the position of a paid agent of the State. It began to feel toward him as it would have felt toward the town-crier if he had put on a gown and bands, and insisted on accompanying his announcement of thefts and losses with homilies on the vanity of life and the right use of opportunities. The editor had, in short, to conduct his business in a manner befitting his newly assumed duties as a prophet, and to pretend at least that his utterances were wholly independent and were due simply to a desire for the public good, as a prophet's ought to be. It is now very rare indeed that a government is able to induce a well-established newspaper of the first class to act as its organ in the proper sense of that term, except by working on the vanity of editors. Almost all editors are a little sensitive about the imputation of being mere commentators or critics, and a little desirous of being thought "practical men," by those engaged in the actual working of political machinery. The "old editor" in this country in fact preferred to be thought a working politician, and liked to use his paper as a piece of political machinery for producing solid party gains, and in this way to be received into the circle of "workers" and "managers" as one of themselves; and to retain this position he was always willing to "write up" any view they suggested. His successor, though he cares less about being "a worker," and is able to secure the attendance of politicians at his office without running after them, is, nevertheless, more or less flattered by the confidences of men in power, and it often takes only a small amount of these confidences to make him surrender the judicial position and accept that of an advocate, and stand by them through thick and thin. But no leading journal has ever tried this position in our day very long without being forced out of it by the demand of the public for impartiality and the consequent difficulty of avoiding giving offence in official quarters. Every administration does things either through its chief or subordinates which will not bear defence, and which its judicious friends prefer to pass over in silence. But a journalist cannot keep silent. The Government may require him to hold his tongue, but the reader demands that he shall speak; and as the public supplies the sinews of war, and pays for the prophet's robes, he is sooner or later compelled to break with the Government and to reproach it for not listening to the advice of its friends in time.

Moreover, in a country in which the press is free and newspapers abound, a party which contains a majority of the people cannot fail to have the support of a large and influential portion of the press. Its conductors, though prophets, do not wear camel's hair, nor is their diet locusts and wild honey. They form part of the community, live among the voters, and share, to a greater or less extent, their prejudices and expectations and sympathies. Every party, therefore, is sure, as long as it has a strong hold on the public, of having a strong hold on the press, and of having a considerable number of the most influential editors among its defenders. One of the sure signs that it is losing its hold on the public is the defection of the press or its growing lukewarmness. Newspapers cannot, perhaps, build a party up or pull one down, but when you see the newspapers deserting a party it is all but proof that the agencies which dissolve a political organization are at work. The successful editors may have no originating power or no organizing power, and no capacity for legislation, and may even want the prophetic instinct; but a certain intuitive sense of the direction in which the tide of popular feeling is running is the principal condition of their success, and an anxious politician may therefore always safely credit them with possessing it. If they had not had it, their papers would not have succeeded.

If the incident or its lessons should result in establishing better relations between political men and the press, the sacrifice of the unfortunate projector of the _Republic_ will, however, be a small price to pay for a great gain. We do not, as our readers know, set up to be champions of the press, and have certainly never shown any disposition to underrate its defects or shortcomings. But there is one thing which no candid and careful observer can avoid seeing, and that is that the press of the country, as an instrument of discussion and popular education, has undergone within twenty years an improvement nothing analogous to which is to be found in the class of politicians. The newspapers are now, in the vast majority of cases in all our leading cities, conducted by men who are familiar with the leading ideas of our time and with the latest advances in science and the art, including the art of government, and who write under the influence of these ideas and these advances, and who have consequently got a standard of efficiency in legislative administration which has not yet made its way into the political class. The result is that, after making all possible allowance for the carelessness and recklessness and dishonesty of reporters, and the personal biases and enmities of editors, the men who carry on the Government, excepting a few experts, have become objects of criticism on the part of the daily press, the depreciatory tone of which is not wholly unjustifiable or unnatural, and politicians repay this contempt with a hatred which is none the less fierce for having no adequate means of expression.

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.

PHYSICAL FORCE IN POLITICS

The late discussion on the possibility or expediency of maintaining governments at the South which had no physical force at their disposal has not failed to attract the attention of the friends of woman suffrage. They see readily what, indeed, most outsiders have seen all along, that the failure of the numerical majority in certain Southern States to hold the power to which the law entitled them simply because they were unable or unwilling to fight, has a very important bearing on the fitness of women to participate in the practical work of government, and a well-known writer, "T. W. H.," in a late number of the _Woman's Journal_, endeavors to show that what has happened at the South is full of encouragement for the woman suffragists. His argument is in substance this: You (the opponents) have always maintained as the great objection to the admission of women to the franchise, that if women voted, cases might arise in which the physical force of the community would be in the hands of one party and the legal authority in those of the other, and we should then witness the great scandal of a majority government unable to execute the laws. We have just seen at the South, however, that the possession of physical force is not always sufficient to put the majority even of the male voters in possession of the Government. In South Carolina and Louisiana the Government has been seized and successfully held by a minority, in virtue of their greater intelligence and self-confidence. To use his own language:

"The present result in South Carolina is not a triumph of bodily strength over weakness, but, on the contrary, of brains over bodily strength. And however this reasoning affects the condition of South Carolina--which is not here my immediate question--it certainly affects, in a very important degree, the argument for woman suffrage. If the ultimate source of political power is muscle, as is often maintained, then woman suffrage is illogical; but if the ultimate source of political power is, as the Nation implies, 'the intelligence, sagacity, and the social and political experience of the population,' then the claims of women are not impaired. For we rest our case on the ground that women equal men on these points, except in regard to political experience, which is a thing only to be acquired by practice.

"So the showing of the _Nation_ is, on the whole, favorable to women. It looks in the direction of Mr. Bagehot's theory, that brains now outweigh muscle in government. Just in proportion as man becomes civilized and comes to recognize laws as habitually binding, does the power of mere brute force weaken. In a savage state the ruler of a people must be physically as well as mentally the strongest; in a civilized state the commander-in-chief may be physically the weakest person in the army. The English military power is no less powerful for obeying the orders of a queen. The experience of South Carolina does not vindicate, but refutes, the theory that muscle is the ruling power. It shows that an educated minority is more than a match for an ignorant majority, even though this be physically stronger. Whether this forbodes good or evil to South Carolina is not now the question; but so far as woman suffrage is concerned, the moral is rather in its favor than against it."

What is singular in all this is, that the writer is evidently under the impression that the term "physical force" in politics means muscle, or, to put the matter plainly, that the fact that the South Carolina negroes, who unquestionably surpass the whites in lifting power, could not hold their own against them, shows that government has become a mere question of brains, and that as women have plenty of brains, though they can lift very little, they could perfectly well carry on, or help to carry on, a government which has only moral force on its side.

Now, as a matter of fact, there has been no recent change in the meaning attached to "physical force" in political nomenclature. It does not mean muscle or weight now, as we see in South Carolina; and it has never meant muscle or weight since the dawn of civilization. The races and nations which have made civilization and ruled the world have done so by virtue of their possessing the very superiority, in a greater or less degree, which the Carolina whites have shown in their late struggle with the blacks. The Greeks, the Romans, the Turks, the English, the French, and the Germans have all succeeded in government--that is, in seizing and keeping power--not through superiority of physical force which consists in muscle, but through the superiority which consists in the ability to organize and bring into the field, and reinforce large bodies of men, with the resolution to kill and be killed in order to have their own way in disputes. No matter how much intelligence a people may have, unless they are able and willing to apply their intelligence to the art of war, and have the personal courage necessary to carry out in action the plans of their leaders, they cannot succeed in politics. Brains are necessary for political success, without doubt, but it must be brains applied, among other things to the organization of physical force in fleets and armies. An "educated minority," as such, is no more a match for a "physically stronger ignorant majority" than a delicate minister for a pugilist in "condition," unless it can furnish well-equipped and well-led troops. The Greeks were better educated than the Romans, but this did not help them. The Romans of the Empire were vastly more intelligent and thoughtful than the Barbarians, but they could not save the Empire. The Italians of the Middle Ages were the superiors of the French and Germans in every branch of culture, and yet this did not prevent Italy being made the shuttlecock of northern politicians and free-booters. The French overran Germany in the beginning of the present century, and the Germans have overrun France within the last ten years, not in either case owing to superiority in lifting or boxing, or in literary "culture," but to superiority in the art of fighting-- that is, of bringing together large bodies of armed men who will not flinch, and will advance when ordered on the battle-field.

It is skill in this art which is meant by the term "physical force" in politics, and it is this physical force which lies behind all successful government. The superiority of the North in numbers, wealth, machinery, literature, and common schools would have profited it nothing, and the American Republic would have disappeared from the map if it had not been possible, thirty years ago, to apply a vast amount of intelligence to the purposes of destruction, and to find large numbers of men willing to fight under orders. In quiet times, under a government in which the numerical majority and the intelligence and property of the community are on the same side, and take substantially the same views of public polity, and the display of coercive force, except for ordinary police purposes, is not called for, we not unnaturally slide readily into the pleasant belief that government is purely a moral agency, and that people obey the law through admiration of intellectual power and the dread of being "cornered" in argument, or of being exposed as selfish or lawless.

Such occurrences as the late civil war and the recent deadlock at the South are very useful in uncovering the secret springs of society, and reminding people of the tremendous uncertainties and responsibilities by which national as well as individual life is surrounded, reminding the voter, in short, that he may not always be able to discharge his duty to the country by depositing his ballot in the box; that he may have to make the result sure by putting everything he values in the world at stake. The poor negroes in South Carolina have not been deposed simply because they are ignorant; the Russian peasants who fought at Borodino were grossly ignorant. How many of the English hinds who stood rooted in the soil at Waterloo could read and write? The Carolinian majority failed because it did not contain men willing to fight, or leaders capable of organization for military purposes, or, in other words, did not possess what has since the dawn of civilization been the first and greatest title to political power. The Carolinian minority did not drive their opponents out of the offices by simply offering the spectacle of superior intelligence of self-confidence, but by the creation of a moral certainty that, if driven to extremities, they would outdo the Republicans in the marshalling, marching, provisioning, and manoeuvring of riflemen.

If this be true, it will be readily seen that the lesson of the South Carolina troubles, far from containing encouragement for the friends of female suffrage, is full of doubt and difficulty. Those who believe that women voters would constitute a new and valuable force in politics must recognize the possibility that they would at some time or other constitute the bulk of a majority claiming the government, and they must also recognize the probability that the male portion of this majority would be composed of the milder and less energetic class of men, people with much brains and but little physical courage, ready to go to the stake for a conviction, but not ready to shoulder a musket or assault a redoubt. If under these circumstances the minority, composed exclusively of men, inferior if you will, to the majority in the purity of their motives, the breadth of their culture, and in capacity for drawing constitutions and laws and administering charities, should refuse to obey the majority, and should say that its government was a ridiculous "fancy" government, administered by crackbrained people, and likely to endanger property and the public credit, and that it must be abolished, what would the women and their "gentlemen friends" do? They would doubtless remonstrate with the recusants and show them the wickedness of their course, but then the recusants would be no more moved by this than Wade Hampton and his people by Mr. Chamberlain's eloquent and affecting inaugural address. They would tell the ladies that their intelligence was doubtless of a high order, and their aims noble, but that as they were apparently unable to supply policemen to arrest the persons who disobeyed their laws, their administration was a farce and its disappearance called for in the interest of public safety. Accordingly it would be removed to the great garret of history, to lie side by side with innumerable other disused plans for human improvement.