Chapter X

Much of the testimony in French courts, civil and martial, appears to consist of personal impressions and opinions of the witnesses. All very improper and mischievous, no doubt, if—if what? Why, obviously, if the judges and jurors are unfit to sit in judgment. By designating them to sit, the designating power assumes their fitness—assumes that they know enough to take such things for what they are worth, to make the necessary allowances; if needful, to disregard a witness’s opinion altogether. I do not know that they are fit. I do not know that they do make the needful allowances. It is by no means clear to me that any judge or juror, French, American or Patagonian, is competent to ascertain the truth when lying witnesses are trying to conceal it under the direction of skilled and conscienceless attorneys licensed to deceive. But his competence is a basic assumption of the law vesting him with the duty of deciding. Having chosen him for that duty, the French law very logically lets him alone to decide for himself what is evidence and what is not. It does not trust him a little, but altogether. It puts him under conditions familiar to him—makes him accessible to just such influences as he is accustomed to when making conscious and unconscious decisions in his personal affairs.

There may be a distinct gain to justice in permitting a witness to say whatever he wants to say. If he is telling the truth he will not contradict himself; if he is lying, the more rope he is given the more surely he will entangle himself.

In giving hearsay evidence, for example, he may suggest a new and important witness of whom the counsel for the other side would not otherwise have heard, and who can then be brought into court. By some unguarded and apparently irrelevant statement he may open an entirely new line of inquiry, or throw upon the case a flood of light. Everyone knows what revelations are sometimes evoked by apparently the most insignificant remarks. Why should justice be denied a chance to profit that way?

There is a still greater advantage in “the French method.” By giving a witness free rein in expression of his personal opinions and feelings we should be able to calculate his frame of mind, his good or ill will to the prosecution or defense and, therefore, to a certain extent his credibility. In our courts he is able by a little solemn perjury to conceal all this, even from himself, and pose as an impartial witness, when in truth, with regard to the accused he is full of rancor or reeking with compassion.

In theory our system is perfect. The accused is prosecuted by a public officer, who having no interest in his conviction, will serve the state without mischievous zeal and perform his disagreeable task with fairness and consideration. He is permitted to entrust his defense to another officer, whose duty it is to make a rigidly truthful and candid presentment of his case in order to assist the court to a just decision. The jurors, if there are jurors, are neither friendly nor hostile, are open-minded, intelligent and conscientious. As to the witnesses, are they not sworn to tell the truth, the whole truth (in so far as they are permitted) and nothing but the truth? What could be finer and better than all this?—what could more certainly assure justice?

How close the resemblance is between this ideal picture and what actually occurs all know, or should know. The judge is frequently an ignoramus incapable of logical thought and with little sense of the dread and awful nature of his responsibility. The prosecuting attorney thinks it due to his reputation to “make a record” and tries to convict by hook or crook, even when he is himself persuaded of the defendant’s innocence. Counsel for the defense is equally unscrupulous for acquittal, and, both having industriously coached their witnesses, they contend against each other in deceiving the court by every art of which they are masters. Witnesses on both sides perjure themselves freely and with almost perfect impunity if detected. At the close of it all the poor weary jurors, hopelessly bewildered and dumbly resentful of their duping, render a random or compromise verdict, or one which best expresses their secret animosity to the lawyer they like least, or their faith in the newspapers which they have diligently and disobediently read every night. Commenting upon Rabelais’ old judge who, when impeached for an outrageous decision, pleaded his defective eyesight which made him miscount the spots on the dice, the most distinguished lawyer of my acquaintance seriously assured me that if all the cases with which he had been connected had been decided with the dice substantial justice would have been done more frequently than it was done. If that is true, or nearly true, and I believe it, the American’s right to sneer at the Frenchman’s “judicial methods” is an open question.