The Shadow On The Dial, and Other Essays

Nowhere "on God's green earth"-it is fitting, that this paper contain a bit of bosh-nowhere is so much insufferable stuff talked in a given period of time as in an American political convention. It is there that all those objectionable elements of the national character which evoke the laughter of Europe and are the despair of our friends find freest expression, unhampered by fear of any censorship more exacting than that of "the opposing party"-which takes no account of intellectual delinquencies, but only of moral.

The "organs" of the "opposing party" will not take the trouble to point out-even to observe-that the "debasing sentiments" and "criminal views" uttered in speech and platform are expressed in sickening syntax and offensive rhetoric. Doubtless an American politician, statesman, what you will, could go into a political convention and signify his views with simple, unpretentious common sense, but doubtless he never does.

Every community is cursed with a number of "orators"-men regarded as "eloquent"-"silver tongued" men-fellows who to the common American knack at brandishing the tongue add an exceptional felicity of platitude, a captivating mastery of dog's-eared sentiment, a copious and obedient vocabulary of eulogium, an iron insensibility to the ridiculous and an infinite affinity to fools. These afflicting Chrysostoms are always lying in wait for an "occasion" It matters not what it is: a "reception" to some great man from abroad, a popular ceremony like the laying of a corner-stone, the opening of a fair, the dedication of a public building, an anniversary banquet of an ancient and honorable order (they all belong to ancient and honorable orders) or a club dinner-they all belong to clubs and pay dues. But it is in the political convention that they come out particularly strong. By some imperious tradition having the force of written law it is decreed that in these absurd bodies of our fellow citizens no word of sense shall be uttered from the platform; whatever is uttered in set speeches shall be addressed to the meanest capacity present As a chain can be no stronger than its weakest link, so nothing said by the speakers at a political convention must be above the intellectual reach of the most pernicious idiot having a seat and a vote. I don't know why it is so. It seems to be thought that if he is not suitably entertained he will not attend, as a delegate, the next convention.

Here are the opening sentences of the speech in which a man was once nominated for Governor:

"Two years ago the Republican party in State and Nation marched to imperial triumph. On every hilltop and mountain peak our beacons blazed and we awakened the echoes of every valley with songs of our rejoicings."

And so forth. Now, if I were asked to recast those sentences so that they should conform to the simple truth and be inoffensive to good taste I should say something like this:

"Two years ago the Republican party won a general election."

If there is any thing in this inflated rigmarole that is not adequately expressed in my amended statement, what is it? As to eloquence it will hardly be argued that nonsense, falsehood and metaphors which were old when Rome was young are essential to that. The first man (in early Greece) who spoke of awakening an echo did a felicitous thing. Was it felicitous in the second? Is it felicitous now? As to that military metaphor-the "marching" and so forth-its inventor was as great an ass as any one of the incalculable multitude of his plagiarists. On this matter hear the late Richard Grant White:

"Is it not time that we had done with the nauseous talk about campaigns, and standard-bearers, and glorious victories (imperial triumphs) and all the bloated army-bumming bombast which is so rife for the six months preceding an election? To read almost any one of our political papers during a canvass is enough to make one sick and sorry.... An election has no manner of likeness to a campaign, or a battle. It is not even a contest in which the stronger or more dexterous party is the winner; it is a mere counting, in which the bare fact that one party is the more numerous puts it in power if it will only come up and be counted; to insure which a certain time is spent by each party in reviling and belittling the candidates of its opponents and lauding its own; and this is the canvass, at the likening of which to a campaign every honest soldier might reasonably take offense."

But, after all, White was only "one o' them dam litery fellers," and I dare say the original proponent of the military metaphor, away off there in "the dark backward and abysm of time," knew a lot more about practical politics than White ever did. And it is practical politics to be an ass.

In withdrawing his own name from before a convention, a California politician once made a purely military speech of which a single sample passage is all that I shall allow myself the happiness to quote:

"I come before you today as a Republican of the Republican banner county of this great State of ours. From snowy Shasta on the north to sunny Diego on the south; from the west, where the waves of the Pacific look upon our shores, to where the barriers of the great Sierras stand clad in eternal snow, there is no more loyal county to the Republican party in this State than the county from which I hail. [Applause, naturally.] Its loyalty to the party has been tested on many fields of battle [Anglice, in many elections] and it has never wavered in the contest Wherever the fate of battle was trembling in the balance [Homer, and since Homer, Tom, Dick and Harry] Alameda county stepped into the breach and rescued the Republican party from defeat."

Translated into English this military mouthing would read somewhat like this:

"I live in Alameda county, where the Republicans have uniformly outvoted the Democrats."

The orators at the Democratic convention a week earlier were no better and no different. Their rhetorical stock-in-trade was the same old shop-worn figures of speech in which their predecessors have dealt for ages, and in which their successors will traffic to the end of-well, to the end of that imitative quality in the national character, which, by its superior intensity, serves to distinguish us from the apes that perish.

THERE is a difference between religion and the amazing circumstructure which, under the name of theology, the priesthoods have builded round about it, which for centuries they made the world believe was the true temple, and which, after incalculable mischiefs wrought, immeasurable blood spilled in its extension and consolidation, is only now beginning to crumble at the touch of reason. There is the same difference between the laws and the law-the naked statutes (bad enough, God knows) and the incomputable additions made to them by lawyers.

This immense body of superingenious writings it is that we all are responsible to in person and property. It is unquestionable authority for setting aside any statute that any legislative body ever passed or can pass. In it are dictates of recognized validity for turning topsy-turvy every principle of justice and reversing every decree of reason. There is no fallacy so monstrous, no deduction so hideously unrelated to common sense, as not to receive, somewhere in the myriad pages of this awful compilation, a support that any judge in the land would be proud to recognize with a decision if ably persuaded. I do not say that the lawyers are altogether responsible for the existence of this mass of disastrous rubbish, nor for its domination of the laws. They only create and thrust it down our throats; we are guilty of contributory negligence in not biting the spoon.

As long as there exists the right of appeal there is a chance of acquittal. Otherwise the right of appeal would be a sham and an insult more intolerable, even, than that of the man convicted of murder to say why he should not receive the sentence which nothing he may say will avert. So long as acquittal may ensue guilt is not established. Why, than are men sentenced before they are proved guilty? Why are they punished in the middle of proceedings against them? A lawyer can reply to these questions in a thousand ingenious ways; there is but one answer. It is because we are a barbarous race, submitting to laws made by lawyers for lawyers. Let the "legal fraternity" reflect that a lawyer is one whose profession it is to circumvent the law; that it is a part of his business to mislead and befog the court of which he is an officer; that it is considered right and reasonable for him to live by a division of the spoils of crime and misdemeanor; that the utmost atonement he ever makes for acquitting a man whom he knows to be guilty is to convict a man whom he knows to be innocent. I have looked into this thing a bit and it is my judgment that all the methods of our courts, and the traditions of bench and bar exist and are perpetuated, altered and improved, for the one purpose of enabling the lawyers as a class to exact the greatest amount of money from the rest of mankind. The laws are mostly made by lawyers, and so made as to encourage and compel litigation. By lawyers they are interpreted and by lawyers enforced for their own profit and advantage. The whole intricate and interminable machinery of precedent, rulings, decisions, objections, writs of error, motions for new trials, appeals, reversals, affirmations and the rest of it, is a transparent and iniquitous systems of "cinching." What remedy would I propose? None. There is none to propose. The lawyers have "got us" and they mean to keep us. But if thoughtless children of the frontier sometimes rise to tar and feather the legal pelt may God's grace go with them and amen. I do not believe there is a lawyer in Heaven, but by a bath of tar and a coating of hen's-down they can be made to resemble angels more nearly than by any other process.

The matchless villainy of making men suffer for crimes of which they may eventually be acquitted is consistent with our entire system of laws-a system so complicated and contradictory that a judge simply does as he pleases, subject only to the custom of giving for his action reasons that at his option may or may not be derived from the statute. He may sternly affirm that he sits there to interpret the law as he finds it, not to make it accord with his personal notions of right and justice. Or he may declare that it could never have been the Legislature's intention to do wrong, and so, shielded by the useful phrase contra bonos mores, pronounce that illegal which he chooses to consider inexpedient. Or he may be guided by either of any two inconsistent precedents, as best suits his purpose. Or he may throw aside both statute and precedent, disregard good morals, and justify the judgment that he wishes to deliver by what other lawyers have written in books, and still others, without anybody's authority, have chosen to accept as a part of the law. I have in mind judges whom I have observed to do all these things in a single term of court, and could mention one who has done them all in a single decision, and that not a very long one. The amazing feature of the matter is that all these methods are lawful-made so, not by legislative enactment, but by the judges. Language can not be used with sufficient lucidity and positiveness to land them.

The legal purpose of a preliminary examination is not the discovery of a criminal; it is the ascertaining of the probable guilt or innocence of the person already charged. To permit that person's counsel to insult and madden the various assisting witnesses in the hope of making them seem to incriminate themselves instead of him by statements that may afterward be used to confuse a jury-that is perversion of law to defeat justice. The outrageous character of the practice is seen to better advantage what contrasted with the tender consideration enjoyed by the person actually accused and presumably guilty-the presumption of his innocence being as futile a fiction as that a sheep's tail is a leg when called so. Actually, the prisoner in a criminal trial is the only person supposed to have a knowledge of the facts who is not compelled to testify! And this amazing exemption is given him by way of immunity from the snares and pitfalls with which the paths of all witnesses are wantonly beset! To a visiting Lunarian it would seem strange indeed that in a Terrestrial court of justice it is not deemed desirable for an accused person to incriminate himself, and that it is deemed desirable for a subpoena to be more dreaded than a warrant.

When a child, a wife, a servant, a student-any one under personal authority or bound by obligation of honor-is accused or suspected an explanation is demanded, and refusal to testify is held, and rightly held, a confession of guilt To question the accused-rigorously and sharply to examine him on all matters relating to the offense, and even trap him if he seem to be lying-that is Nature's method of criminal procedure; why in our public trials do we forego its advantages? It may annoy; a person arrested for crime must expect annoyance. It can not make an innocent man incriminate himself, not even a witness, but it can make a rogue do so, and therein lies its value. Any pressure short of physical torture or the threat of it, that can be put upon a rogue to make him assist in his own undoing is just and therefore expedient.

This ancient and efficient safeguard to rascality, the right of a witness to refuse to testify when his testimony would tend to convict him of crime, has been strengthened by a decision of the United States Supreme Court. That will probably add another century or two to its mischievous existence, and possibly prove the first act in such an extension of it that eventually a witness can not be compelled to testify at all. In fact it is difficult to see how he can be compelled to now if he has the hardihood to exercise his constitutional right without shame and with an intelligent consciousness of its limitless application.

The case in which the Supreme Court made the decision was one in which a witness refused to say whether he had received from a defendant railway company a rate on grain shipments lower than the rate open to all shippers. The trial was in the United States District Court for the Northern District of Illinois, and Judge Gresham chucked the scoundrel into jail. He naturally applied to the Supreme Court for relief, and that high tribunal gave joy to every known or secret malefactor in the country by deciding-according to law, no doubt-that witnesses in a criminal case can not be compelled to testify to anything that "might tend to criminate them in any way, or subject them to possible prosecution." The italics are my own and seem to me to indicate, about as clearly as extended comment could, the absolutely boundless nature of the immunity that the decision confirms or confers. It is to be hoped that some public-spirited gentleman called to the stand in some celebrated case may point the country's attention to the state of the law by refusing to tell his name, age or occupation, or answer any question whatever. And it would be a fitting finale to the farce if he would threaten the too curious attorney with an action for damages for compelling a disclosure of character.

Most lawyers have made so profound a study of human nature as to think that if they have shown a man to be of loose life with regard to women they have shown him to be one that would tell needless lies to a jury-a conviction unsupported by the familiar facts of life and character. Different men have different vices, and addiction to one kind of "upsetting sin" does not imply addiction to an unrelated kind. Doubtless a rake is a liar in so far as is needful to concealment, but it does not follow that he will commit perjury to save a horsethief from the penitentiary or send a good man to the gallows. As to lying, generally, he is not conspicuously worse than the mere lover, male or female; for lovers have been liars from the beginning of time. They deceive when it is necessary and when it is not. Schopenhauer says that it is because of a sense of guilt-they contemplate the commission of a crime and, like other criminals, cover their tracks. I am not prepared to say if that is the true explanation, but to the fact to be explained I am ready to testify with lifted arms. Yet no cross-examining attorney tries to break the credibility of a witness by showing that he is in love.

An habitual liar, if disinterested, makes about as good a witness as anybody. There is really no such thing as "the lust of lying:" falsehoods are told for advantage-commonly a shadowy and illusory advantage, but one distinctly enough had in mind. Discerning no opportunity to promote his interest, tickle his vanity or feed a grudge, the habitual liar will tell the truth. If lawyers would study human nature with half the assiduity that they give to resolution of hairs into their longitudinal elements they would be better fitted for service of the devil than they have now the usefulness to be.

I have always asserted the right and expediency of cross-examining attorneys in court with a view to testing their credibility. An attorney's relation to the trial is closer and more important than that of a witness. He has more to say and more opportunities to deceive the jury, not only by naked lying, but by both suppressio veri and suggestio falsi. Why is it not important to ascertain his credibility; and if an inquiry into his private life and public reputation will assist, as himself avers, why should he not be put upon the grill and compelled to sweat out the desired incrimination? I should think it might give good results, for example, to compel him to answer a few questions touching, not his private life, but his professional. Somewhat like this:

"Did you ever defend a client, knowing him to be guilty?"

"What was your motive in doing so?"

"But in addition to your love of fair play had you not also the hope and assurance of a fee?"

"In defending your guilty client did you declare your belief in his innocence?"

"Yes, I understand, but necessary as it may have been (in that it helped to defeat justice and earn your fee) was not your declaration a lie?"

"Do you believe it right to lie for the purpose of circumventing justice?-yes or no?"

"Do you believe it right to lie for personal gain-yes or no?"

"Then why did you do both?"

"A man who lies to beat the laws and fill his purse is-what?"

"In defending a murderer did you ever misrepresent the character, acts, motives and intentions of the man that he murdered-never mind the purpose and effect of such misrepresentation-yes or no?"

"That is what we call slander of the dead, is it not?"

"What is the most accurate name you can think of for one who slanders the dead to defeat justice and promote his own fortune?"

"Yes, I know-such practices are allowed by the 'ethics' of your profession, but can you point to any evidence that they are allowed by Jesus Christ?"

"If in former trials you have obstructed justice by slander of the dead, by falsely affirming the innocence of the guilty, by cheating in argument, by deceiving the court whom you are sworn to serve and assist, and have done all this for personal gain, do you expect, and is it reasonable for you to expect, the jury in this case to believe you?"

"One moment more, please. Did you ever accept an annual, or other fee conditioned on your not taking any action against a corporation?"

"While in receipt of such refrainer-I beg you pardon, retainer-did you ever prosecute a blackmailer?"

It will be seen that in testing the credibility of a lawyer it is needless to go into his private life and his character as a man and a citizen: his professional practices are an ample field in which to search for offenses against man and God. Indeed, it is sufficient simply to ask him: "What is your view of 'the ethics of your profession' as a suitable standard of conduct for a pirate of the Spanish Main?"

The moral sense of the laymen is dimly conscious of something wrong in the ethics of the noble profession; the lawyers affirming, rightly enough, a public necessity for them and their mercenary services, permit their thrift to construe it vaguely as personal justification. But nobody has blown away from the matter its brumous encompassment and let in the light upon it It is very simple.

Is it honorable for a lawyer to try to clear a man that he knows deserves conviction? That is not the entire question by much. Is it honorable to pretend to believe what you do not believe? Is it honorable to lie? I submit that these questions are not answered affirmatively by showing the disadvantage to the public and to civilization of a lawyer refusing to serve a known offender. The popular interest, like any other good cause, can be and commonly is, served by foul means. Justice itself may be promoted by acts essentially unjust. In serving a sordid ambition a powerful scoundrel may by acts in themselves wicked augment the prosperity of a whole nation. I have not the right to deceive and lie in order to advantage my fellowmen, any more than I have the right to steal or murder to advantage them, nor have my fellowmen the power to grant me that indulgence.

The question of a lawyer's right to clear a known criminal (with the several questions involved) is not answered affirmatively by showing that the law forbids him to decline a case for reasons personal to himself-not even if we admit the statute's moral authority. Preservation of conscience and character is a civic duty, as well as a personal; one's fellow-men have a distinct interest in it. That, I admit, is an argument rather in the manner of an attorney; clearly enough the intent of this statute is to compel an attorney to cheat and lie for any rascal that wants him to. In that sense it may be regarded as a law softening the rigor of all laws; it does not mitigate punishments, but mitigates the chance of incurring them. The infamy of it lies in forbidding an attorney to be a gentleman. Like all laws it falls something short of its intent: many attorneys, even some who defend that law, are as honorable as is consistent with the practice of deceit to serve crime.

It will not do to say that an attorney in defending a client is not compelled to cheat and lie. What kind of defense could be made by any one who did not profess belief in the innocence of his client?-did not affirm it in the most serious and impressive way?-did not lie? How would it profit the defense to be conducted by one who would not meet the prosecution's grave asseverations of belief in the prisoner's guilt by equally grave assurances of faith in his innocence? And in point of fact, when was counsel for the defense ever known to forego the advantage of that solemn falsehood? If I am asked what would become of accused persons if they had to prove their innocence to the lawyers before making a defense in court, I reply that I do not know; and in my turn I ask: What would become of Humpty Dumpty if all the king's horses and all the king's men were an isosceles triangle?

It all amounts to this, that lawyers want clients and are not particular about the kind of clients that they get All this is very ugly work, and a public interest that can not be served without it would better be unserved.

I grant, in short, 'tis better all around

That ambidextrous consciences abound

In courts of law to do the dirty work

That self-respecting scavengers would shirk.

What then? Who serves however clean a plan

By doing dirty work, he is a dirty man.

But in point of fact I do not "grant" any such thing. It is not for the public interest that a rogue have the same freedom of defense as an honest man; it should be a good deal harder for him. His troubles should begin, not when he seeks acquital, but when he seeks counsel. It would be better for the community if he could not obtain the services of a reputable attorney, or any attorney at all. A defense that can not be made without his attorney's actual knowledge of his guilt should be impossible to him. Nor should he be permitted to remain off the witness stand lest he incriminate himself. It ought to be the aim of the court to let him incriminate himself-to make him do so if his testimony will. In our courts that natural method would serve the ends of justice greatly better than the one that we have. Testimony of the guilty would assist in conviction; that of the innocent would not.

As to the general question of a judge's right to inflict arbitrary punishment for words that he may be pleased to hold disrespectful to himself or another judge, I do not myself believe that any such right exists; the practice seems to be merely a survival-a heritage from the dark days of irresponsible power, when the scope of judicial authority had no other bounds than fear of the royal gout or indigestion. If in these modern days the same right is to exist it may be necessary to revive the old checks upon it by restoring the throne. In freeing us from the monarchial chain, the coalition of European Powers commonly known in American history as "the valor of our forefathers" stripped us starker than they knew.

Suppose an attorney should find his client's interests imperiled by a prejudiced or corrupt judge-what is he to do? If he may not make representations to that effect, supporting them with evidence, where evidence is possible and by inference where it is not, what means of protection shall he venture to adopt? If it be urged in objection that judges are never prejudiced nor corrupt I confess that I shall have no answer: the proposition will deprive me of breath.

If contempt is not a crime it should not be punished; if a crime it should be punished as other crimes are punished-by indictment or information, trial by jury if a jury is demanded, with all the safeguards that secure an accused person against judicial blunders and judicial bias. The necessity for these safeguards is even greater in cases of contempt than in others-particularly if the prosecuting witness is to sit in judgment on his own grievance. That should, of course, not be permitted: the trial should take place before another judge.

Why should twelve able-bodied jurymen, with their oaths to guide them and the law to back, submit to the dictation of one small judge armed with nothing better than an insolent assumption of authority? A judge has not the moral right to order a jury to acquit, the utmost that he can rightly do is to point out what state of the law or facts may seem to him unfavorable to conviction. If the jurors, holding a different view, persist in conviction the accused will have grounds, doubtless, for a new trial. But under no circumstances is a judge justified in requiring a responsible human being to disregard the solemn obligation of an oath.

The public ear is dowered with rather more than just enough of clotted nonsense about "attacks upon the dignity of the Bench," "bringing the judiciary into disrepute" and the rueful rest of it. I crave leave to remind the solicitudinarians sounding these loud alarums on their several larynges that by persons of understanding men are respected, not for what they do, but for what they are, and that one public functionary will stand as high in their esteem as another if as high in character. The dignity of a wise and righteous judge needs not the artificial safeguarding which is a heritage of the old days when if dissent found a tongue the public executioner cut it out. The Bench will be sufficiently respected when it is no longer a place where dullards dream and rogues rob-when its personnel is no longer chosen in the back-rooms of tipple-shops, forced upon yawning conventions and confirmed by the votes of men who neither know what the candidates are nor what they should be. With the gang that we have and under our system must continue to have, respect is out of the question and ought to be. They are entitled to just as much of its forms and observances as are needful to maintenance of order in their courts and fortification of their lawful power-no more. As to their silence under criticism, that is as they please. No body but themselves is holding their tongues.

A law under which the unsuccessful respondent in a divorce proceeding may be forbidden to marry again during the life of the successful complainant, the latter being subject to no such disability, is infamous infinitely. If the disability is intended as a punishment it is exceptional among legal punishments in that it is inflicted without conviction, trial or arraignment, the divorce proceedings being quite another and different matter.

It is exceptional in that the period of its continuance, and therefore the degree of its severity, are indeterminate; they are dependent on no limiting statute, and on neither the will of the power inflicting nor the conduct of the person suffering.

To sentence a person to a punishment that is to be mild or severe according to chance or-which is even worse-circumstance, which but one person, and that person not officially connected with administration of justice, can but partly control, is a monstrous perversion of the main principles that are supposed to underlie the laws.

In "the case at bar" it can be nothing to the woman-possibly herself remarried-whether the man remarries or not; that is, can affect only her feelings, and only such of them as are least creditable to her. Yet her self-interest is enlisted against him to do him incessant disservice. By merely caring for her health she increases the sharpness of his punishment-for punishment it is if he feels it such; every hour that she wrests from death is added to his "term." The expediency of preventing a man from marrying, without having the power to prevent him from making his marriage desirable in the interest of the public and vital to that of some woman, is not discussable here. If a man is ever justified in poisoning a woman who is no longer his wife it is when, by way of making him miserable, the State has given him, or he supposes it to have given him, a direct and distinct interest in her death.