The Shadow On The Dial, and Other Essays by Ambrose Bierce (read this if txt) 📖

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