"What we most need, to secure honest elections," says a well-meaning reformer, "is the Clifford or the Myers voting machine." Why, truly, here is a hopeful spirit--a rare and radiant intelligence suffused with the conviction that men can be made honest by machinery--that human character is a matter of gearing, ratchets and dials! One would give something to know how it feels to be like that. A mind so const.i.tuted must be as happy in its hope as a hen incubating a nest-ful of porcelain door-k.n.o.bs. It lives in rapturous contemplation of a world of its own creation--a world where public morality and political good order are to be had by purchase at the machine-shop. In that delectable world religion is superfluous; the true high priest is the mechanical engineer; the minor clergy are the village blacksmiths. It is rather a pity that so fine and fair a sphere should prosper only in the attenuated ether of an idiot's understanding.

Voting-machines are doubtless well enough; they save labor and enable the statesmen of the street to know the result within a few minutes of the closing of the polls--whereby many are spared to their country who would otherwise incur fatal disorders by exposure to the night air while a.s.sisting in awaiting the returns. But a voting-machine that human ingenuity can not pervert, human ingenuity can not invent.

That is true, too, of laws. Your statesman of a mental stature somewhat overtopping that of the machine-person puts his faith in law.

Providence has designed to permit him to be persuaded of the efficacy of statutes--good, stringent, carefully drawn statutes definitively repealing all the laws of nature in conflict with any of their provisions. So the poor devil (I am writing of Mr. Legion) turns for relief from law to law, ever on the stool of repentance, yet ever unfouling the anchor of hope. By no power cm earth can his indurated understanding be penetrated by the truth that his woful state is due, not to any laws of his own, nor to any lack of them, but to his rascally refusal to obey the Golden Rule. How long is it since we were all clamoring for the Australian ballot law, which was to make a new Heaven and a new earth? We have the Australian ballot law and the same old earth smelling to the same old Heaven. Writhe upon the triangle as we may, groan out what new laws we will, the pitiless thong will fall upon our bleeding backs as long as we deserve it. If our sins, which are scarlet, are to be washed as white as wool it must be in the tears of a genuine contrition: our crocodile deliverances will profit us nothing.

We must stop chasing dollars, stop lying, stop cheating, stop ignoring art, literature and all the refining agencies and instrumentalities of civilization. We must subdue our detestable habit of shaking hands with prosperous rascals and fawning upon the merely rich. It is not permitted to our employers to plead in justification of low wages the law of supply and demand that is giving them high profits. It is not permitted to discontented employees to break the bones of contented ones and destroy the foundations of social order. It is infamous to look upon public office with the l.u.s.t of possession; it is disgraceful to solicit political preferment, to strive and compete for "honors" that are sullied and tarnished by the touch of the reaching hand. Until we amend our personal characters we shall amend our laws in vain. Though Paul plant and Apollos water, the field of reform will grow nothing but the figless thistle and the grapeless thorn. The State is an aggregation of individuals. Its public character is the expression of their personal ones. By no political prestidigitation can it be made better and wiser than the sum of their goodness and wisdom. To expect that men who do not honorably and intelligently conduct their private affairs will honorably and intelligently conduct the affairs of the community is to be a fool.

We are told that out of nothing G.o.d made the Heavens and the earth; but out of nothing G.o.d never did and man never can, make a public sense of honor and a public conscience. Miracles are now performed but one day of the year--the twenty-ninth of February; and on leap year G.o.d is forbidden to perform them.

IV.

Ye who hold that the power of eloquence is a thing of the past and the orator an anachronism; who believe that the trend of political events and the results of parliamentary action are determined by committees in cold consultation and the machinations of programmes in holes and corners, consider the ascension of Bryan and be wise. A week before the convention of 1896 William J. Bryan had never heard of himself; upon his natural obscurity was superposed the opacity of a Congressional service that effaced him from the memory of even his faithful dog, and made him immune to dunning. Today he is pinnacled upon the summit of the tallest political distinction, gasping in the thin atmosphere of his unfamiliar environment and fitly astonished at the mischance. To the dizzy elevation of his candidacy he was hoisted out of the shadow by his own tongue, the longest and liveliest in Christendom. Had he held it--which he could not have done with both hands--there had been no Bryan. His creation was the unstudied act of his own larynx; it said, "Let there be Bryan," and there was Bryan. Even in these degenerate days there is a hope for the orators when one can make himself a Presidential peril by merely waving the red flag in the cave of the winds and tormenting the circ.u.mjacence with a brandish of abundant hands.

To be quite honest, I do not entirely believe that Orator Bryan's tongue had anything to do with it. I have long been convinced that personal persuasion is a matter of animal magnetism--what in its more obvious manifestation we now call hypnotism. At the back of the words and the postures, and independent of them, is that secret, mysterious power, addressing, not the ear, not the eye, nor, through them, the understanding, but through its matching quality in the auditor, captivating the will and enslaving it That is how persuasion is effected; the spoken words merely supply a pretext for surrender. They enable us to yield without loss of our self-esteem, in the delusion that we are conceding to reason what is really extorted by charm. The words are necessary, too, to point out what the orator wishes us to think, if we are not already apprised of it. When the nature of his power is better understood and frankly recognized, he can spare himself the toil of talking. The parliamentary debate of the future will probably be conducted in silence, and with only such gestures as go by the name of "pa.s.ses." The chairman will state the question before the House and the side, affirmative or negative, to be taken by the honorable member ent.i.tled to the floor. That gentleman will rise, train his compelling orbs upon the miscreants in opposition, execute a few pa.s.ses and exhaust his alloted time in looking at them. He will then yield to an honorable member of dissenting views. The preponderance in magnetic power and hypnotic skill will be manifest in the voting. The advantages of the method are as plain as the nose on an elephant's face. The "arena" will no longer "ring" with anybody's "rousing speech," to the irritating abridgment of the inalienable right to pursuit of sleep. Honorable members will lack provocation to hurl allegations and cuspidors.

Pitchforking statesmen and tosspot reformers will be unable to play at pitch-and-toss with reputations not submitted for the performance. In short, the congenial asperities of debate will be so mitigated that the honorable member from Hades will retire permanently from the hauls of legislation.

V.

"Public opinion," says Buckle, "being the voice of the average man, is the voice of mediocrity." Is it therefore so very wise and infallible a guide as to be accepted without other credentials than its name and fame? Ought we to follow its light and leading with no better a.s.surance of the character of its authority than a count of noses of those following it already, and with no inquiry as to whether it has not on many former occasions let them and their several sets of predecessors into bogs of error and over precipices to "eternal mock?" Surely "the average man," as every one knows him, is not very wise, not very learned, not very good; how is it that his views, of so intricate and difficult matters as those of which public opinion makes p.r.o.nouncement through him are ent.i.tled to such respect? It seems to me that the average man, as I know him, is very much a fool, and something of a rogue as well. He has only a smattering of education, knows virtually nothing of political history, nor history of any kind, is incapable of logical, that is to say clear, thinking, is subject to the suasion of base and silly prejudices, and selfish beyond expression. That such a person's opinions should be so obviously better than my own that I should accept them instead, and a.s.sist in enacting them into laws, appears to me most improbable. I may "bow to the will of the people"

as gracefully as a defeated candidate, and for the same reason, namely, that I can not help myself; but to admit that I was wrong in my belief and flatter the power that subdues me--no, that I will not do. And if n.o.body would do so the average man would not be so very c.o.c.k-sure of his infallibility and might sometimes consent to be counseled by his betters.

In any matter of which the public has imperfect knowledge, public opinion is as likely to be erroneous as is the opinion of an individual equally uninformed. To hold otherwise is to hold that wisdom can be got by combining many ignorances. A man who knows nothing of algebra can not be a.s.sisted in the solution of an algebraic problem by calling in a neighbor who knows no more than himself, and the solution approved by the unanimous vote of ten million such men would count for nothing against that of a competent mathematician. To be entirely consistent, gentlemen enamored of public opinion should insist that the text books of our common schools should be the creation of a ma.s.s meeting, and all disagreements arising in the course of the work settled by a majority vote. That is how all difficulties incident to the popular translation of the Hebrew Scriptures were composed. It should be admitted, however that most of those voting knew a little Hebrew, though not much. A problem in mathematics is a very simple thing compared with many of those upon which the people are called to p.r.o.nounce by resolution and ballot--for example, a question of finance.

"The voice of the people is the voice of G.o.d"--the saying is so respectably old that it comes to us in the Latin. He is a strange, an unearthly politician who has not a score of times publicly and solemnly signified his faith in it But does anyone really believe it? Let us see.

In the period between 1859 and 1885, the Democratic party was defeated six times in succession. The voice of the people p.r.o.nounced it in error and unfit to govern. Yet after each overthrow it came back into the field gravely reaffirming its faith in the principles that G.o.d had condemned. Then G.o.d twice reversed Himself, and the Republicans "never turned a hair," but set about beating Him with as firm a confidence of success (justified by the event) as they had known in the years of their prosperity. Doubtless in every instance of a political party's defeat there are defections, but doubtless not all are due to the voice that spoke out of the great white light that fell about Saul of Tarsus. By the way, it is worth observing that that clever gentleman was under no illusion regarding the origin of the voice that wrought his celebrated "flop"; he did not confound it with the _vox populi_ The people of his time and place had no objection to the persecution that he was conducting, and could persecute a trifle themselves upon occasion.

Majorities rule, when they do rule, not because they ought, but because they can. We vote in order to learn without fighting which party is the stronger; it is less disagreeable to learn it that way than the other way. Sometimes the party that is numerically the weaker is by possession of the Government actually the stronger, and could maintain itself in power by an appeal to arms, but the habit of submitting when outvoted is hard to break. Moreover, we all recognize in a subconscious way, the reasonableness of the habit as a practical method of getting on; and there is always the confident hope of success in the next canva.s.s. That one's cause will succeed because it ought to succeed is perhaps the most general and invincible folly affecting the human judgment Observation can not shake it, nor experience destroy. Though you bray a partisan in the mortar of adversity till he numbers the strokes of the pestle by the hairs of his head, yet will not this fool notion depart from him. He is always going to win the next time, however frequently and disastrously he has lost before. And he can always give you the most cogent reasons for the faith that is in him. His chief reliance is on the "fatal mistakes" made since the last election by the other party. There never was a year in which the party in power and the party out of power did not make bad mistakes--mistakes which, unlike eggs and fish, seem always worst when freshest. If idiotic errors of policy were always fatal, no party would ever win an election and there would be a hope of better government under the benign sway of the domestic cow.

VI.

Each political party accuses the "opposing candidate" of refusing to answer certain questions which somebody has chosen to ask him. I think myself it is discreditable for a candidate to answer any questions at all, to make speeches, declare his policy, or to do anything whatever to get himself elected. If a political party choose to nominate a man so obscure that his character and his views on all public questions are not known or inferable he ought to have the dignity to refuse to expound them. As to the strife for office being a pursuit worthy of a n.o.ble ambition, I do not think so; nor shall I believe that many do think so until the term "office seeker" carries a less opprobrious meaning and the dictum that "the office should seek the man, not the man the office," has a narrower currency among all manner of persons. That by acts and words generally felt to be discreditable a man may evoke great popular enthusiasm is not at all surprising. The late Mr. Barnum was not the first nor the last to observe that the people love to be humbugged.

They love an impostor and a scamp, and the best service that you can do for a candidate for high political preferment is to prove him a little better than a thief, but not quite so good as a thug.

VII.

The view is often taken that a representative is the same thing as a delegate; that he is to have, and can honestly entertain, no opinion that is at variance with the whims and the caprices of his const.i.tuents.

This is the very _reductio ad absurdum_ of representative government.

That it is the dominant theory of the future there can be little doubt, for it is of a piece with the progress downward which is the invariable and unbroken tendency of republican inst.i.tutions. It fits in well with manhood suffrage, rotation in office, unrestricted patronage, a.s.sessment of subordinates, an elective judiciary and the rest of it. This theory of representative inst.i.tutions is the last and lowest stage in our pleasant performance of "shooting Niagara." When it shall have universal recognition and a.s.sent we shall have been fairly engulfed in the whirlpool, and the buzzard of anarchy may hopefully whet his beak for the national carca.s.s. My view of the matter--which has the further merit of being the view held by those who founded this Government--is that a man holding office from and for the people is in conscience and honor bound to do what seems to his judgment best for the general welfare, respectfully regardless of any and all other considerations. This is especially true of legislators, to whom such specific "instructions" as const.i.tuents sometimes send are an impertinence and an insult. Pushed to its logical conclusion, the "delegate" idea would remove all necessity of electing men of brains and judgment; one man properly connected with his const.i.tuents by telegraph would make as good a legislator as another. Indeed, as a matter of economy, one representative should act for many const.i.tuencies, receiving his instructions how to vote from ma.s.s meetings in each. This, besides being logical, would have the added advantage of widening and hardening the power of the local "bosses,"

who, by properly managing the showing of hands could have the same beneficent influence in national affairs that they now enjoy in munic.i.p.al. The plan would be a pretty good one if there were not so many other ways for the Nation to go to the Devil that it appears needless.

VIII.

With a wiser wisdom than was given to them, our forefathers in making the Const.i.tution would not have provided that each House of Congress "shall be the judge of the elections, returns and qualifications of its own members." They would have foreseen that a ruling majority of Congress could not safely be trusted to exercise this power justly in the public interest, but would abuse it in the interest of party. A man's right to sit in a legislative body should be determined, not by that body, which has neither the impartiality, the knowledge of evidence nor the time to determine it rightly, but by the courts of law. That is how it is done in England, where Parliament voluntarily surrendered the right to say by whom the const.i.tuencies shall be represented, and there is no disposition to resume it. As the vices hunt in packs, so, too, virtues are gregarious; if our Congress had the righteousness to decide contested elections justly it would have also the self-denial not to wish to decide them at all.

IX

The purpose of the legislative custom of "eulogizing" dead members of Congress is not apparent unless it is to add a terror to death and make honorable and self-respecting members rather bear the ills they have than escape through the gates of death to others that they know a good deal about. If a member of that kind, who has had the bad luck to "go before," could be consulted he would indubitably say that he was sorry to be dead; and that is not a natural frame of mind in one who is exempt from the necessity of himself "delivering a eulogy."

It may be urged that the Congressional "eulogy" expresses in a general way the eulogist's notion of what he would like to have somebody say of himself when he is by death elected to the Lower House. If so, then Heaven help him to a better taste. Meanwhile it is a patriotic duty to prevent him from indulging at the public expense the taste that he has.

There have been a few men in Congress who could speak of the character and services of a departed member with truth and even eloquence. One such was Senator Vest. Of many others, the most charitable thing that one can conscientiously say is that one would a little rather hear a "eulogy" by them than on them. Considering that there are many kinds of brains and only one kind of no brains, their diversity of gifts is remarkable, but one characteristic they have in common: they are all poets. Their efforts in the way of eulogium ill.u.s.trate and illuminate Pascal's obscure saying that poetry is a particular sadness. If not sad themselves, they are at least the cause of sadness in others, for no sooner do they take to their legs to remind us that life is fleeting, and to make us glad that it is, than they burst into bloom as poets all!

Some one has said that in the contemplation of death there is something that belittles. Perhaps that explains the transformation. Anyhow the Congressional eulogist takes to verse as naturally as a moth to a candle, and with about the same result to his reputation for sense.

The poetry is commonly not his own; what it violates every law of sense, fitness, metre, rhyme and taste it is. But nine times in ten it is some dog's-eared, shop-worn quotation from one of the "standard" bards, usually Shakspere. There are familiar pa.s.sages from that poet which have been so often heard in "the halls of legislation" that they have acquired an infamy which unfits them for publication in a decent family newspaper; and Shakspere himself, reposing in Elysium on his bed of asphodel and moly, omits them when reading his complete works to the shades of Kit Marlowe and Ben Jonson, for their sins.

This whole business ought to be "cut out" It is not only a waste of time and a sore trial to the patience of the country; it is absolutely immoral. It is not true that a member of Congress who, while living was a most ordinary mortal, becomes by the accident of death a hero, a saint, "an example to American youth." n.o.body believes these abominable "eulogies," and n.o.body should be permitted to utter them in the time and place designated for another purpose. A "tribute" that is exacted by custom and has not the fire and light of spontaneity is without sincerity or sense. A simple resolution of regret and respect is all that the occasion requires and would not inhibit any further utterance that friends and admirers of the deceased might be moved to make elsewhere. If any bereaved gentlemen, feeling his heart getting into his head, wishes to tickle his ear with his tongue by way of standardizing his emotion let him hire a hall and do so. But he should not make the Capitol a "Place of Wailing" and the Congressional Record a book of bathos.

SOME FEATURES OF THE LAW

I.

THERE is a difference between religion and the amazing circ.u.mstructure 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, G.o.d 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 pa.s.sed or can pa.s.s. 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 ma.s.s 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 circ.u.mvent 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 cla.s.s 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 G.o.d'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_, p.r.o.nounce 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 a.s.sisting 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 a.s.sist 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 const.i.tutional 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.