Reflections and Comments 1865 1895 by Edwin Lawrence Godkin

E >> Edwin Lawrence Godkin >> Reflections and Comments 1865 1895

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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.

The cause of much of the misconception about the part played by
physical force in modern society now current in reformatory circles
is doubtless to be found in the disappearance of sporadic and
lawless displays of it, such as, down to a very recent period,
seriously disturbed even the most civilized communities. The change
that has taken place, however, consists not in the total disuse of
force as a social agency, but in the absorption of all force by the
government, making it so plainly irresistible that the occasions are
rare when anything approaching to organized resistance or defiance
of it is attempted. When it lays its commands on a man he knows that
obedience will, if necessary, be enforced by an agency of such
tremendous power that he does not think of revolt. But it is not the
high intelligence of those who carry it on that he bows to; it is to
their ability to crush him like an egg-shell. Of course, it is not
surprising that his submissiveness should at meetings of
philanthropists be ascribed to the establishment of a consensus
between his mind and the mind of the law-giver, or in other words,
the subjection of society to purely moral influences; but it is
perhaps well that complications like those of South Carolina should
now and then occur to infuse sobriety into speculation and explain
the machinery of civilization.

"COURT CIRCLES"

The passionate excitement created in Canada by the arrival of a
daughter of the Queen, and the prospect of the establishment of
"a court" in Ottawa which will have the appearance of a real
Court--that is, a court with blood royal in it, instead of a court
held merely by the queen's legal representatives--is a phenomenon of
considerable interest. It affords a fresh illustration of that
growth of reverence for royalty which all the best observers agree
has for the last forty years been going on in England, side by side
with the growth of democratic feeling and opinion in politics--that
is, the sovereign has more than gained as a social personage what
she has lost as a political personage. The less she has had to do
with the government the more her drawing-rooms have been crowded,
and the more eager have people become for personal marks of her
favor.

The reason of this is not far to seek. It lies in the enormous
increase during that period in the size of the class which is not
engaged in that, to the heralds, accursed thing--trade, and has
money enough to bear the expense of "a presentation," and of living
or trying to live afterward in the circle of those who might be
invited to court, or might meet the Prince of Wales at dinner. The
accumulation of fortunes since the Queen's accession has been very
great, and they have, however made, come into possession now of a
generation which has never been engaged in any occupation frowned on
by the Lord Chamberlain, and which owns estates, or at all events
possesses all outward marks of gentility, when it has been received
by the Queen, and has got into Burke's Dictionary at the end of an
interesting though perhaps apocryphal genealogy. This reception is
the crown of life's struggle, a sort of certificate that the hero or
heroine of it is fit company for anybody in the world. It is, in
fact, a social graduation. When you get somebody who is himself a
graduate to agree to present you, and the Lord Chamberlain, after
examining your card, makes no objection to you, he virtually
furnishes you with a sort of diploma which guarantees you against
what may be called authorized snubs. People may afterward decline
your invitations on the ground that they do not like you, or that
your entertainments bore them, but not on the ground that your
social position is inferior to their own.

That the struggle for this diploma in a wealthy and large society
should be great and increasing is nothing wonderful. The desire for
it among the women especially, to whose charge the creation and
preservation of "position" are mainly committed, is very deep. It
inflames their imagination in a way which makes husbands ready for
anything in order to get it, and in fact makes it indispensable to
their peace of mind and body that they should get it as soon as
their pecuniary fortune seems to put it within their reach. Since
the Queen ascended the throne the population has risen from
20,000,000 to 35,000,000, and the number of great fortunes and
presentable people has increased in a still greater ratio, and the
pressure on the court has grown correspondingly; but there remains
after all only one court to gratify the swarm of new applicants. The
colonies, too, have of late years contributed largely to swell the
tide. Every year London society and the ranks of the landed gentry
are reinforced by returned Australians and New Zealanders and
Cape-of-Good-Hopers and China and India merchants, who feel that
their hard labors and long exile have left life empty and joyless
until they see the names of their wives and daughters in the
_Gazette_ among the presentations at a drawing-room or levee.

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