The custom of permitting a witness to wander at will over the entire field of knowledge, hearsay, surmise and opinion has several distinct advantages over our practice. 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. On 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 presentation 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 commonly 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, contend against each other in deceiving the court by every artifice of which they are masters. Witnesses on both sides perjure themselves freely and with almost perfect immunity 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 eye-sight 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 still an open question.
It is urged that the corrupt practices in our courts of law be uncovered to public view, whenever that is possible, by dial impeccable censor, the press. Exposure of rascality is very good—better, apparently for rascals than for anybody else, for it usually suggests something rascally which they had overlooked, and so familiarizes the public with crime that crime no longer begets loathing. If the newspapers of the country are really concerned about corrupter practices than their own and willing to bring our courts up to the English standard there is something better than exposure—which fatigues. Let the newspapers set about creating a public opinion favorable to non-elective judges, well paid, powerful to command respect and holding office for life or good behavior. That is the only way to get good men and great lawyers on the Bench. As matters are, we stand and cry for what the English have and rail at the way they get it. Our boss-made, press-ridden and mob-fearing paupers and ignoramuses of the Bench give us as good a quality of justice as we merit A better quality awaits us whenever the will to have it is attended by the sense to take it.
ARBITRATION
THE universal cry for arbitration is either dishonest or unwise. For every evil there are quack remedies galore—especially for every evil that is irremediable. Of this order of remedies is arbitration, for of this order of evils is the inadequate wage of manual labor. Since the beginning of authentic history everything has been tried in the hope of divorcing poverty and labor, but nothing has parted them. It is not conceivable that anything ever will; success of arbitration, antecedently improbable, is demonstrably impossible. Most of the work of the world is hard, disagreeable work, requiring little intelligence. Most of the people of the world are unintelligent—unfit to do any other work. If it were not done by them it would not be done, and it is the basic work. Withdraw them from it and the whole superstructure would topple and fall. Yet there is too little of the work, and there are so many incapable of doing anything else that adequate return is out of the question. For the laboring class there is no hope of an existence that is comfortable in comparison with that of the other class; the hope of an individual laborer lies in the possibility of fitting himself for higher employment—employment of the head; not manual but cerebral labor. While selfishness remains the main ingredient of human nature (and a survey of the centuries accessible to examination shows but a slow and intermittent decrease) the cerebral workers, being the wiser and no better, will manage to take the greater profit. In justice it must be said of them that they extend a warm and sincere invitation to their ranks, and take "apprentices;" every chance of education that the other class enjoys is proof of that.
All this is perhaps a trifle abstruse; let us, then, look at arbitration more nearly; in our time it is, in form at least something new. It began as "international arbitration," which already, in settling a few disputes of no great importance, has shown itself a dangerous remedy. In the necessary negotiation to determine exactly what points to submit to whom, and how, and where, and when to submit them, and how to carry out the arbitrator's decision, scores of questions are raised, upon each of which it is as easy to disagree and fight as upon the original issue. International arbitration may be defined as the substitution of many burning questions for a smouldering one; for disputes that have reached a really acute stage are not submitted. The animosities that it has kindled have been hotter than those it has quenched.
Industrial arbitration is no better; it is manifestly worse, and any law enforcing it and enforcing compliance with its decisions, is absurd and mischievous. "Compulsory arbitration" is not arbitration, the essence whereof is voluntary submission of differences and voluntary submission to judgment. If either reference or obedience is enforced the arbitrators are simply a court with no powers to do anything but apply the law. Proponents of the fad would do well to consider this: If a party to a labor dispute is compelled to invoke and obey a decision of arbitrators that decision must follow strictly the line of law; the smallest invasion of any constitutional, statutory or common-law right will enable him to upset the whole judgment No legislative body can establish a tribunal empowered to make and enforce illegal or extra legal decisions; for making and enforcing legal ones the tribunals that we already have are sufficient This talk of "compulsory arbitration" is the maddest nonsense that the industrial situation has yet evolved. Doubtless it is sent upon us for our sins; but had we not already a plague of inveracity?