San Francisco Examiner/December 25, 1898
In withdrawing a question which Witness Dunning at the cost of his liberty refused to answer, Attorney Knight did well—a deal better than he did in asking it in the first place, and insisting on an answer. San Franciscan standard of duty to the State is pretty low, but the spectacle of a man on the witness stand confessing the sins of women whom he suspects of nothing worse than favors to himself would not tend to its elevation. Such questions as Mr. Dunning honorably declined to answer are the less proper for their needlessness: their purpose is commonly gratification of a prurient public curiosity regarding a woman’s sin; and if the public will but have patience to wait she is sure to tell it herself.
It may be that Attorney Knight’s motive in crowding Witness Dunning was to throw suspicion on the man’s credibility: 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 “upsettin’ 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 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 needs 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 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 happiness to be.
I have always held, and may have argued in these columns, 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. 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 Attorney Knight to answer a few questions touching not, in this instance, his private life, but his professional. Somewhat as follows:
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 a refrainer—I beg your 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 citizen; his professional practices are an ample field in which to search or 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?”
It is a pity that some of the morbid and chronic attendants at the Botkin trial cannot be sent to the garbage crematory.—The Call.
Mr. Middleman, they have as good a right to glut their minds through the ear as through the eye—to hear the “ripe” testimony in the court, as to read it in The Call. Do try to be charitable to the consumer who deals directly with the producer.
An esteemed contemporary, deeply and justly grieved by the corrupt practices in our courts of law, urges that they be uncovered to public view, whenever that is possible, by that impeccable censor, the press. The promise is made that the esteemed contemporary will itself be diligent in exposure. 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 no longer begets loathing. If the newspapers of this 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 for life or good behavior. That is the only way to get good men and great lawyers on to 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.
A telegram from Denver says there was no kissing at the Hobson reception, that customary rite having been omitted from the programme by the committee in charge, with Hobson’s assent. Well, naturally, he would rather not do any kissing in a woman-suffrage State: there is a limit to human courage.
It is gratifying to learn that the fate of the Spanish treaty is no longer in doubt; it will pass the Senate. Many senators who oppose expansion and deny the constitutional right and political expediency of annexing the Philippines will vote for the treaty, in order to put an end to Spain’s interest in them, believing that it may be possible to make a suitable disposition of them afterward. That is a wholesome view of the matter—first take the islands from Spain, then in our own good time, and free from any obligations to her, decide what we shall do with them. A good many of us erring statesmen and faulty patriots who do not believe in keeping them have no doubts whatever of the propriety of depriving the Spanish crown of them. I think myself they would make a very appropriate present to their inhabitants. I think that the gratitude of eight or nine millions of human beings rejoicing in their freedom from centuries of misrule would be worth having. If there is a God who takes account of human deed and human motive I think it might have a greater value to us than the revenues and trade that we should forego in accepting it. Even in this life there are better things than dollars. In the world’s large affairs the dominant factors are conscience and character. They, and not commercial thrift, have made the Anglo-Saxon race the power that it is. It is from them that Great Britain derives her authority to “hold dominion over palm and pine.” They were our warrant and our strength in striking Spain—our heart and arm. To them we appealed in going to war to liberate Cuba—avowed them, professed them and called upon the nations to witness the purity of our motive, the righteousness of our deed. We solemnly promised that after taking Cuba from Spain we would not keep it for ourselves—that would be wrong. Are there two standards of right?—one in Havana another in Manila? True, we made no engagements regarding the Philippines; we did not promise to be righteous in the Pacific, but only in the Caribbean.
I am not unaware that many honorable persons believe it right that upon the neck of that hereditary bondman, the Filipino, we should substitute our lighter yoke for that of Spain; I am not imputing dishonesty to anybody. Doubtless self-interest is a factor to be civilly reckoned with in mundane affairs, and doubtless even that is absent in most instances from the proponency of Philippinean annexation. The determining factor of belief is to be sought, not in testimony, evidence, proof, but in the native tissue and structure of the human mind. Ninety-nine men in every hundred have understandings which cannot be kept from believing certain kinds of propositions, and cannot be made to believe certain other kinds, supported it may be by evidence infinitely stronger.
If we cannot all agree as to the final disposition of the Philippine islands, we ought to have no difficulty in agreeing that Spain shall have nothing to say in the matter. I have not myself much faith in the “sober second thought,” the “mature judgment” of the American people or any people. My notion is (and it seems confirmed by history—itself, I confess, sadly devoid of confirmation) that a people’s second thought is a trifle less generous, wise and righteous than its first. So I doubt not we shall keep the Philippines in some sense acceptable to their inhabitants, enter hopefully upon a regime of coleales and coaling stations and endeavor to maintain it with armies of civilian impossible who fall over their own feet when they march and die like flies when they camp.
At the beginning of the war most of the polpatriots repeating one another’s nonsense from the perch of the press were diligent in denouncing the “infamous Spanish spies” among us upon whose rascal heads they heaped incessant obloquy, even at the base of Nathan Hale’s statue, which all the while ran blood! I ventured civilly to point out that the vocation of a spy is honorable, demanding the highest courage and devotion, and that he is hanged when caught as a matter, not of justice, but military expediency. I tried to show that the moral standing of a spy depended on the cause that he aided—a hero if he served one’s own, a sneak if that of one’s enemy. They would not have it so, the good polpatriots; they rose as one bird and screamed at me. Now, I observe these same philosophers executing feats of adoration at the feet of a young American ensign, one Ward, whose part in all the pomp that fills our memories of the war is that he disguised himself and went to Spain as a spy. No comments—next fool forward.
A propos of the Rosser incident ad many others, it is comforting to observe that the war being over Tennessee has withdrawn her warike hordes from Californian soil without exacting an indemnity.
(Source: California State Library, microfilm collection)