ANTEPENULTIMATA (continued 2)

III

The notion that a standing army of whatever strength could be a “menace to American liberty” is one of the crudest and most discreditable of errors. It is an outgrowth of ignorance, and rooted in a false analogy. It assumes that the “common people” of the Old World monarchies are oppressed, discontented, ripe for revolt and republican government; that they are held in subjection by the powerful armies that serve their tyrants. Of course all this is mere moonshine, but if true it would hold no such lesson for us as we think we read in it, namely, that all armies are serviceable tools to tyrants and usurpers. A European army, recruited by conscription and officered by noblemen and the sons of relatives of noblemen, is an entirely different thing from what we have, and very different indeed from what we may have if we choose. The monarchical army sustains the monarchy, not because an army is naturally and necessarily monarchist, but because monarchy is the constitutional government; and armies, more generally than other human organizations, are faithful to duty and obedient to law. For the same reasons an American army will sustain the republic. Whenever a monarchical army has not sustained the monarchy—has assisted to overthrow it and set up a republic—then, indeed, have we been given a reason to distrust “the military”—of a monarchy.

An army of raw volunteers springing to the colors to meet some unforeseen emergency is an inspiring spectacle, but that kind of army is good for nothing when pitted against trained and seasoned troops. Every military man knows this, although there are no large recent instances free from obscuring elements, like “the war of 1812.”

In European countries that have universal conscription the years that the young men pass in the army are the best spent years of their lives. Those who enter the service as ignorant peasant lads, brutally stupid, leave it well set up in body and mind—with better health, better morals and better intelligence. The American peasant is of course perfect in respect of all that, but perhaps his refining society would be of advantage to his officers.

SOME FEATURES OF THE LAW

I

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. In 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 accountable 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.

II

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, to the man convicted of murder, the right 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, then, 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; but there is no answer. 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. The methods of our courts, the traditions of bench and bar, exist and are perpetuated, altered and improved, for the purpose of enabling 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 over-intricate and interminable machinery of precedent, overrulings, writs of error, motions for new trials, appeals, reversals, affirmations and the rest of it, is mostly a transparent and iniquitous system of exaction. What remedy would I propose? None. There is none to propose. The lawyers have us and mean to keep us.

The 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 which at his option may or may not be derived from the statutes. 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 the better 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 most of them in a single decision. 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 bind them.

III

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 character of the practice is seen to better advantage 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 full knowledge of the facts who is not compelled to testify. And this 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 subpœna to be more dreaded than a warrant.

When a child, a wife, a servant, a student—any one under personal authority—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, even a mere witness, incriminate himself, but it can make a rogue do so, and therein lies its value.

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 recent 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 indicate about as clearly as extended comment could the boundless 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.

IV

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 would say 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.

V

I affirm 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 his professional career. Somewhat like this:

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

“What, precisely, 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 a client known to you to be guilty 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 certain corporation?”

“While in receipt of such 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 a citizen: his professional practices are an ample field in which to search for offenses against man and God.

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 when served at all. 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 fellow men, any more than I have the right to steal or murder to advantage them; nor have my fellow men 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 fellowmen have a distinct interest in it. That, I admit, is an argument rather in the manner of an attorney; clearly enough the effect 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 the 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 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 acquittal, 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 knowledge of his guilt should be impossible to him.

VI

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 king’s 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 monarchical 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? Denied the right to 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.

The public ear is served with rather more than just enough of 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 a man is respected, not for the office that he holds, but for what he is, 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 know neither 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. The judges are entitled to just as much of its forms and observances as is 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. Nobody but themselves is holding their tongues.

VII

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 unrighteous. 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—circumstances which but one person, and that person not officially connected with administration of justice, can partly control, is a perversion of the main principles that are supposed to underlie the laws.

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 was once his wife it is when, by way of making him miserable, the state has given him a direct and distinct interest in her death.

VIII

With a view, possibly, to promoting respect for law by making the statutes so to conform to public sentiment that none will fall into dis-esteem and disuse, it has been proposed that there be recognition of sex in the penal code, by making a difference in the punishment of men and of women for the same crimes and misdemeanors. The argument is that if women were “provided” with milder punishment juries would sometimes convict them, whereas they now commonly get off altogether.

The plan is not so new as might be thought. Many of the nations of antiquity of whose laws we have knowledge, and nearly all the European nations until within a comparatively recent time, punished women differently from men for the same offenses. As recently as the period of the Early Puritan in New England women were punished for some offenses which men might commit without fear if not without reproach. The ducking-stool, for example, was an appliance for softening the female temper only. In England women used to be burned at the stake for crimes for which men were hanged, roasting being popularly regarded as the milder punishment. In point of fact, it was not punishment at all, the victim being carefully strangled before the fire touched her. Burning was simply a method of disposing of the body so expeditiously as to give no occasion and opportunity for the unseemly social rites commonly performed about the scaffold of the erring male by a jocular populace. As lately as 1763 a woman named Margaret Biddingfield was burned in Suffolk, England, as an accomplice in the crime of “petty treason.” She had assisted in the murder of one of the king’s subjects (her husband), the actual killing being done by a man; and he was hanged, as no doubt he deserved to be. For “coining,” too (which, also, was “treason”) men were hanged and women burned. This distinction between the sexes was maintained until the year of grace 1790, after which female offenders ceased to have “a stake in the country,” and like Hood’s martial hero, “enlisted in the line.”

In still earlier days, before the advantages of fire were understood, our good grandmothers who sinned were admonished by water—they were drowned; but in the reign of Henry III a woman was hanged—without strangulation, apparently, for after a whole day of it she was cut down and pardoned. Sorceresses and unfaithful wives were smothered in mud, as also were unfaithful wives among the ancient Burgundians. The punishment of unfaithful husbands is not of record; we only know that there were no austerely virtuous editors to direct the finger of scorn to their dark misdeeds and personal unworth.

Among the Anglo-Saxons, women who had the bad luck to be detected in theft were drowned, while men meeting with the same mischance died a dry death by hanging. By the early Danish laws female thieves were buried alive, whether or not from motives of humanity is not now known. This seems to have been the fashion in France also, for in 1331 a woman named Duplas was scourged and buried alive at Abbeville, and in 1460 Perotte Mauger, a receiver of stolen goods, was inhumed by order of the Provost of Paris in front of the public gibbet. In Germany in the good old days certain kinds of female criminals were “impaled,” a punishment too grotesquely horrible for description, but likely enough considered by the simple German of the period conspicuously merciful.

It is, in short, only recently that the civilized nations have placed the sexes on an equality in the matter of the death penalty for crime, and the new system is not yet by any means universal. That it is a better system than the old, or would be if enforced, is a natural presumption from human progress, out of which it is evolved. But coincidently with its evolution has developed also a sentiment adverse to punishment of women at all. This sentiment appears to be of independent growth; in no way a reaction against that which caused the change. To mitigate the severity of the death penalty for women to some pleasant form of euthanasia, such as drowning in rose-water, or in their case to abolish the death penalty altogether and make their capital punishment consist in a brief internment in a jail with a softened name, would probably do no good, for whatever form it might take, it would be, so far as woman is concerned, the “extreme penalty” and crowning disgrace, and jurors would be as reluctant to inflict it as they now are to inflict death.

IX

Testators should not, from the snug security of the grave, be permitted to utter a perpetual threat of disinheritance, or any other uncomfortable fate, to deter a living citizen, even one of their own legatees, from applying to the courts of his country for redress of any wrong from which he may consider himself as suffering. The courts of law ought to be open to any one conceiving himself a victim of injustice, and it should be unlawful to abridge the right of complaint by making its exercise more hazardous than it naturally is. Doubtless the contesting of wills is a nuisance, generally speaking, the contestant devoid of moral worth and the verdict unrighteous; but as long as some testators really are daft, or subject to interested suasion, or wantonly sinful, all should be denied the power to stifle dissent by fining the luckless dissenter. The dead have too much to say in this world, at the best, and it is tyranny for them to stand at the door of the temple of justice to drive away the suitors that themselves have made.

Obedience to the commands of the dead should be conditional upon their good behavior, and it is not good behavior to set up a censure of action at law among the living. If our courts are not competent to say what actions are proper to be brought and what are unfit to be entertained let us improve them until they are competent, or abolish them altogether and resort to the mild and humane arbitrament of the dice; but while courts have the civility to exist they should refuse to surrender any part of their duties and responsibilities to such exceedingly private persons as those under six feet of earth, or sealed up in habitations of hewn stone. Persons no longer affectable by human events should be denied a voice in determining the character and trend of them. Respect for the wishes of the dead is a tender and beautiful sentiment, certainly. Unfortunately, it can not be ascertained that they have any wishes. What commonly go by that name are wishes once entertained by living persons who are now dead, and who in dying renounced them, along with everything else. Like those who entertained them, the wishes are no longer in existence. “The wishes of the dead” are not wishes, and are not of the dead. Why they should have anything more than a sentimental influence upon those still in the flesh, and be a factor to be reckoned with in the practical affairs of the supergraminous world, is a question to which the merely human understanding can find no answer, and it must be referred to the lawyers. When “from the tombs a doleful sound” is vented, and “thine ear” is invited to “attend the cry,” an intelligent forethought will suggest that you inquire if it is anything about property. If so pass on—that is no sacred spot.

X

Much of the testimony in French courts, civil and martial, appears to consist of personal impressions and opinions of the witnesses. All very improper and mischievous, no doubt, if—if what? Why, obviously, if the judges and jurors are unfit to sit in judgment. By designating them to sit, the designating power assumes their fitness—assumes that they know enough to take such things for what they are worth, to make the necessary allowances; if needful, to disregard a witness’s opinion altogether. I do not know that they are fit. I do not know that they do make the needful allowances. It is by no means clear to me that any judge or juror, French, American or Patagonian, is competent to ascertain the truth when lying witnesses are trying to conceal it under the direction of skilled and conscienceless attorneys licensed to deceive. But his competence is a basic assumption of the law vesting him with the duty of deciding. Having chosen him for that duty, the French law very logically lets him alone to decide for himself what is evidence and what is not. It does not trust him a little, but altogether. It puts him under conditions familiar to him—makes him accessible to just such influences as he is accustomed to when making conscious and unconscious decisions in his personal affairs.

There may be a distinct gain to justice in permitting a witness to say whatever he wants to say. If he is telling the truth he will not contradict himself; if he is lying, the more rope he is given the more surely he will entangle himself.

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. By 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 presentment 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 frequently 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, they contend against each other in deceiving the court by every art of which they are masters. Witnesses on both sides perjure themselves freely and with almost perfect impunity 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 eyesight 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 an open question.

XI

It is urged that the corrupt practices in our courts of law be uncovered to public view, whenever that is possible, by that impeccable censor, the press. Exposure of rascality is 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 judges give us as good a quality of justice as we merit. A better quality awaits us whenever the will to have is attended by the sense to take.

ARBITRATION

THE universal cry for industrial 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, requiring little intelligence. Most of the people of the world are 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 so little of the work, and 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 not much 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 opportunity for education that the other class enjoys is proof of that.

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, 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. Nor, despite all “treaties,” will a powerful nation arbitrate anything that it considers vital to its honor or welfare.

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 of which is voluntary submission of differences and voluntary submission to judgment. If 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 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 strikes?

Arbitration of labor disputes means compromise with the unions. It can, in this country, mean nothing else, for the law would not survive a half-dozen failures to concede some part of the workmen’s demands, however reasonless. By repeated strikes they would eventually get all their original demand and as much more as on second thought they might choose to ask for. Each concession would be, as it is now, followed by a new importunity and the first arbitrators might as well allow them all that they demand and all that they mean to demand hereafter.

Would not employers be equally unscrupulous? They would not. They could not afford the disturbance, the stoppage of the business, the risk of unfair decisions in a country where it is “popular” to favor and encourage, not the just, but the poor. The labor leaders have nothing to lose, not even their employment, for their work is labor leading. Their dupes, by the way, would not be dupes forever, for with enforced arbitration the game of “follow my leader” would pay only until there should be nothing to follow him to but empty treasuries of dead industries in an extinct civilization. If there must be compulsory arbitration it should at least not apply to that sum of all impudent rascalities, the “sympathy strike.”

As to the men who have set up the claim asserted by the “sympathy strike,” I shall refer to the affair of 1904. If it was creditable in them to feel so much concern about a few hundred aliens in Illinois, how about the grievances of the whole body of their countrymen in California? When their employers, who they confessed were good to them, were plundering the public, they did not strike, sympathetically nor otherwise. Year after year the railway monopoly picked the pockets of the Californians; corrupted their courts and legislatures; laid its Briarean hands in exaction upon every industry and interest; filled the land with lies and false reasoning; threw honest men into prisons and locked the gates of them against thieves and assassins; by open defiance of the tax collector denied to children of the poor the advantages of education—did all this and more; and these honest working men stood loyally by it, sharing in wages its dishonest gains, receivers, in one sense, of stolen goods. The groans of their neighbors were nothing to them; even the wrongs of themselves, their wives and their children did not stir them to revolt. On every breeze that blew, a great chorus of cries and curses was borne past their ears unheeded. Why did they not strike then? Where then were the fiery altruists and storm-petrels of industrial disorder? The ingenious gods who have invented the Debses and Gomperses, and humorously branded them with names that would make a cat laugh, have never put it into their cold selfish hearts to order out their followers to redress a public wrong, but only to inflict one—to avenge a personal humiliation, gratify an appetite for notoriety, slake a thirst for the intoxicating cup of power, or punish the crime of prosperity.

It is a practical, an illogical, a turbulent time, yes; it always is. The age of Jesus Christ was a practical age, yet Jesus Christ was sweetly impractical. In an illogical period Socrates reasoned clearly, and logically died for it. Nero’s time was a time of turbulence, yet Seneca’s mind was not disturbed, nor his conscience perverted. Compare their fame with the everlasting infamy that time has fixed upon the names of the Jack Cades, the Robespierres, the Tomaso Nielos—guides and gods of the “fierce democracies” which rise with a sickening periodicity to defile the page of history with a quickly fading mark of blood and fire, their own awful example their sole contribution to the good of mankind. To be a child of your time, imbued with its spirit and endowed with its aims—that is to petition Posterity for a niche in the Temple of Shame.

No strike of any prominence ever takes place in this country without the concomitants of violence and destruction of property, and usually murder. These cheerful incidents one who does not personally suffer them can endure with considerable fortitude, but hypocritical condemnation of them by the press that has instigated them and the strikers who have planned and executed them, and who invariably ascribe them to those whom they most injure; the solemn offers of the leaders to assist in protecting the imperiled property and avenging the dead, while openly employing counsel for every incendiary and assassin arrested in spite of them—these are pretty hard to bear. A strike means (for it includes as its main method) violence, lawlessness, destruction of the property of others than the strikers, riot and, if necessary, bloodshed. Even when the strikers themselves have no hand in these crimes they are morally liable for the foreknown consequences of their act. Nay, they are morally liable for all the consequences—all the inconveniences and losses to the community, all the sufferings of the poor entailed by interruptions of trade, all the privations of other workingmen whom a selfish attention to their own supposed advantage throws out of the closed industries. They are liable in morals and should be made so in law—only that strikes are needless. It is not worth while to create a multitude of complex criminal responsibilities for acts which can, possibly, be prevented by a single and simple one. How?

First, I should like to point out that we are hearing a deal too much about a man’s inalienable right to work or play, at his own sovereign will. In so far as that means—and it is always used to mean—his right to quit any kind of work at any moment, without notice and regardless of consequences to others, it is false; there is no such moral right, and the law should have at least a speaking acquaintance with morality. What is mischievous should be illegal. The various interests of civilization are so complex, delicate, intertangled and interdependent that no man, and no set of men, should have power to throw the entire scheme into confusion and disorder for promotion of a trumpery principle or a class advantage. In dealing with corporations we recognize that. If for any selfish purpose a trade union of railway managers had done what their sacred brakemen and divine firemen did—had decreed that “no wheel should turn” until Mr. Pullman’s men should return to work—they would have found themselves all in jail the second day. Their right to quit work was not conceded: they lacked that authenticating credential of moral and legal irresponsibility, an indurated palm. In a small lockout affecting a mill or two the offender finds a half-hearted support in the law if he is willing to pay enough deputy sheriffs; but even then he is mounted by the hobnailed populace, at its back the daily newspapers, clamoring and spitting like cats. But let the manager of a great railway discharge all its men without warning and “kill” its own engines! Then see what you will see. To commit a wrong so gigantic with impunity a man must wear overalls.

How prevent anybody from committing it? How break up this régime of strikes and boycotts and lockouts, more disastrous to others than to those at whom the blows are aimed—than to those, even, who deliver them? How make all those concerned in the management and operation of great industries, about which have grown up tangles of related and dependent interests, conduct them with some regard to the welfare of others? Before committing ourselves to the dubious and irretraceable course of “government ownership,” or to the infectious expedient of “regulation,” is there anything of promise yet untried?—anything of superior simplicity and easier application?

There are few simple remedies for social or political ills. It is a familiar truth that no law was ever passed that did not have unforeseen results; but of these results, by far the greater number are never recognized as of its creation. The best that can be said of any “measure” is that the sum of its perceptible benefits seems so to exceed the sum of its perceptible evils as to constitute a balance of advantage. Yet the statesman or philosopher to whose understanding “the whole matter lies in a nutshell”—who thinks he can formulate a practical political or social policy within the four corners of an epigram is constantly to the fore with a simple specific for ills whose causes are complex, constant and obscure.

Nevertheless, it would be wise to make a breach of labor contract by either party to it a criminal offense punishable by imprisonment. “Fine or imprisonment” will not do—the employee, unable to pay the fine, would commonly go to jail, the employer seldom. That would not be fair.

The need of such a law is apparent: labor contracts would then be drawn for a certain time, securing both employer and employee and (which is more important) helpless persons in related and dependent industries—the whole public, in fact—against sudden and disastrous action by either “capital” or “labor” for accomplishment of a purely selfish and frankly impudent end. A strike or lockout compelled to announce itself thirty days in advance would be comparatively innocuous to the public, whilst securing to the party of initiation all the advantages that anybody professes to want—all but the advantage of ruining others and successfully defying the laws.

Under the present régime labor contracts are useless; either party can violate them with impunity. They offer redress only through a civil suit for damages, and the employee commonly has nothing with which to conduct an action or satisfy a judgment. The consequence is seen in the incessant and increasing industrial disturbances, with their ever-attendant crimes against property, life and liberty—disturbances which, by driving capital to investments in which it needs employ no labor, do more than all the other causes so glibly enumerated by every newspaper and politician, though by no two alike, to bring about the “hard times”—which in their turn cause further and worse disturbances.

THE GIFT O’ GAB

A BOOK entitled Forensic Eloquence, by Mr. John Goss, appears to have for purpose to teach the young idea how to spout, and that purpose, I dare say, it will accomplish if something is not done to prevent. I know nothing of the matter myself, a strong distaste for forensic eloquence, or eloquence of any kind implying a man mounted on his legs and doing all the talking, having averted me from its study. The training of the youth of this country to utterance of themselves after that fashion I should regard as a disaster of magnitude. So far as I know it, forensic eloquence is the art of saying things in such a way as to make them pass for more than they are worth. Employed in matters of importance (and for other employment it were hardly worth acquiring) it is mischievous because dishonest and misleading. In the public service Truth toils best when not clad in cloth-of-gold and bedaubed with fine lace. If eloquence does not beget action it is valueless; but action which results from the passions, sentiments and emotions is less likely to be wise than that which comes of a persuaded judgment. For that reason I cannot help thinking that the influence of Bismarck in German politics was more wholesome than is that of Mr. John Temple Graves.

For eloquence per se—considered merely as an art of pleasing—I entertain something of the respect evoked by success; for it always pleases at least the speaker. It is to speech what an ornate style is to writing—good and pleasant enough in its time and place and, like pie-crust and the evening girl, destitute of any basis in common sense. Forensic eloquence, on the contrary, has an all too sufficient foundation in reason and the order of things: it promotes the ambition of tricksters and advances the fortunes of rogues. For I take it that the Ciceros, the Mirabeaus, the Burkes, the O’Connells, the Patrick Henrys and the rest of them—pets of the text-bookers and scourges of youth—belong in either the one category or the other, or in both. Anyhow I find it impossible to think of them as high-minded men and rightforth statesmen—with their actors’ tricks, their devices of the countenance, inventions of gesture and other cunning expedients having nothing to do with the matter in hand. Extinction of the orator I hold to be the most beneficent possibility of evolution. If Mr. Goss has done anything to retard that blessed time when the Bourke Cockrans shall cease from troubling and the weary be at rest he is an enemy of his race.

“What!” exclaims the thoughtless reader—I have but one—“are not the great forensic speeches by the world’s famous orators good reading? Considering them merely as literature do you not derive a high and refining pleasure from them?” I do not: I find them turgid and tumid no end. They are bad reading, though they may have been good hearing. In order to enjoy them one must have in memory what, indeed, one is seldom permitted to forget: that they were addressed to the ear; and in imagination one must hold some shadowy simulacrum of the orator himself, uttering his work. These conditions being fulfilled there remains for application to the matter of the discourse too little attention to get much good of it, and the total effect is confusion. Literature by which the reader is compelled to bear in mind the producer and the circumstances under which it was produced can be spared.

NATURA BENIGNA

IT is not always on remote islands peopled with pagans that great disasters occur, as memory witnesseth. Nor are the forces of nature inadequate to production of a fiercer throe than any that we have known. The situation is this: we are tied by the feet to a fragile shell imperfectly confining a force powerful enough under favoring conditions, to burst it asunder and set the fragments wallowing and grinding together in liquid flame, in the blind fury of a readjustment. Nay, it needs no such stupendous cataclysm to de-people this uneasy orb. Let but a square mile be blown out of the bottom of the sea, or a great rift open there. Is it to be supposed that we would be unaffected in the altered conditions generated by a contest between the ocean and the earth’s molten core? These fatalities are not only possible but in the highest degree probable. It is probable, indeed, that they have occurred over and over again, effacing all the more highly organized forms of life, and compelling the slow march of evolution to begin anew. Slow? On the stage of Eternity the passing of races—the entrances and exits of Life—are incidents in a brisk and lively drama, following one another with confusing rapidity.

Mankind has not found it practicable to abandon and avoid those places where the forces of nature have been most malign. The track of the Western tornado is speedily repeopled. San Francisco is still populous, despite its earthquake, Galveston despite its storm, and even the courts of Lisbon are not kept by the lion and the lizard. In the Peruvian village straight downward into whose streets the crew of a United States warship once looked from the crest of a wave that stranded her a half mile inland are heard the tinkle of the guitar and the voices of children at play. There are people living at Herculaneum and Pompeii. On the slopes about Catania the goatherd endures with what courage he may the trembling of the ground beneath his feet as old Enceladus again turns over on his other side. As the Hoang-Ho goes back inside its banks after fertilizing its contiguity with hydrate of Chinaman the living agriculturist follows the receding wave, sets up his habitation beneath the broken embankment, and again the Valley of the Gone Away blossoms as the rose, its people dicing with Death.

This matter can not be amended: the race exposes itself to peril because it can do no otherwise. In all the world there is no city of refuge—no temple in which to take sanctuary, clinging to the horns of the altar—no “place apart” where, like hunted deer, we can hope to elude the baying pack of Nature’s malevolences. The dead-line is drawn at the gate of life: Man crosses it at birth. His advent is a challenge to the entire pack—earthquake, storm, fire, flood, drought, heat, cold, wild beasts, venomous reptiles, noxious insects, bacilli, spectacular plague and velvet-footed household disease—all are fierce and tireless in pursuit. Dodge, turn and double how he can, there’s no eluding them; soon or late some of them have him by the throat and his spirit returns to the God who gave it—and gave them.

We are told that this earth was made for our inhabiting. Our dearly beloved brethren in the faith, our spiritual guides, philosophers and friends of the pulpit, never tire of pointing out the goodness of God in giving us so excellent a place to live in and commending the admirable adaptation of all things to our needs.

What a fine world it is, to be sure—a darling little world, “so suited to the needs of man.” A globe of liquid fire, straining within a shell relatively no thicker than that of an egg—a shell constantly cracking and in momentary danger of going all to pieces! Three-fourths of this delectable field of human activity are covered with an element in which we can not breathe, and which swallows us by myriads:

Of the other one-fourth more than one-half is uninhabitable by reason of climate. On the remaining one-eighth we pass a comfortless and precarious existence in disputed occupancy with countless ministers of death and pain—pass it in fighting for it, tooth and nail, a hopeless battle in which we are foredoomed to defeat. Everywhere death, terror, lamentation and the laughter that is more terrible than tears—the fury and despair of a race hanging on to life by the tips of its fingers! And the prize for which we strive, “to have and to hold”—what is it? A thing that is neither enjoyed while had, nor missed when lost. So worthless it is, so unsatisfying, so inadequate to purpose, so false to hope and at its best so brief, that for consolation and compensation we set up fantastic faiths of an aftertime in a better world from which no confirming whisper has ever reached us across the void. Heaven is a prophecy uttered by the lips of despair, but Hell is an inference from analogy.

INDUSTRIAL DISCONTENT

I

THE time seems to have come when the two antagonistic elements of American society should, and could afford to, throw off their disguises and frankly declare their principles and purposes. But what, it may be asked, are the two antagonistic elements? Dividing lines parting the population into two camps more or less hostile may be drawn variously; for example, one may be run between the law-abiding and the criminal class. But the elements to which reference is here made are those immemorial and implacable foes which the slang of modern economics roughly and loosely distinguishes as “capital” and “labor.” A more accurate classification—as accurate a one as it is possible to make—would designate them as those who do muscular labor and those who do not. The distinction between rich and poor does not serve: to the laborer, the rich man who works with his hands is not objectionable; the poor man who does not, is. Consciously or unconsciously, and alike by those whose necessities compel them to perform it and those whose better fortune enables them to avoid it, manual labor is considered the most insufferable of human pursuits. It is a pill that the Tolstois, the “communities” and the “Knights” of Labor can not sugar-coat. We may prate of the dignity of labor; emblazon its praise upon banners; set apart a day on which to stop work and celebrate it; shout our teeth loose in its glorification—and, God help our foolish souls to better sense, we think we mean it all!

If labor is so good and great a thing let all be thankful, for all can have as much of it as may be desired. The eight-hour law is not mandatory to the laborer, nor does possession of leisure entail idleness. It is permitted to the clerk, the shopman, the street peddler—to all who live by the light employment of keeping the wolf from the door without eating him—to abandon their ignoble callings, seize the shovel, the axe and the sledge-hammer and lay about them right sturdily, to the ample gratification of their desire. And those who are engaged in more profitable vocations will find that with a part of their incomes they can purchase the right to work as hard as they like in even the dullest times.

Manual labor has nothing of dignity, nothing of beauty. It is a hard, imperious and dispiriting necessity. He who is condemned to it feels that it sets upon his brow the sign of intellectual inferiority. And that brand of servitude never ceases to burn. In no country and at no time has the laborer had a kindly feeling for the rest of us, for everywhere and always he has fancied that he heard in our patronizing platitudes the note of contempt. In his repression, in the denying him the opportunity to avenge his real and imaginary wrongs, government finds its main usefulness, activity and justification. Governments are evolved out of the necessity of protecting from the hand-worker the life and property of the brain-worker and the idler. The first of the trio is the most dangerous because the most numerous and the least content. Take from the science and the art of government, and from its methods, whatever has had its origin in the consciousness of his ill-will and the fear of his power and what have you left? A pure republic—that is to say, no government.

I should like it understood that, if not absolutely devoid of political prejudices, I at least believe myself to be; that except as to result I think no more of one form of government than of another; and that with reference to results all forms seem to me bad, but bad in different degrees. If asked my opinion as to the results of our own, I should point to Homestead, to Wardner, to Buffalo, to Coal Creek, to the interminable tale of unpunished murders by individuals and by mobs, to legislatures and courts unspeakably corrupt and executives of criminal cowardice, to the prevalence and immunity of plundering trusts and corporations and the multiplication of unhappy millionaires. I should invite attention to the abuses of the pension roll, to the similar and incredible extravagance of Republican and Democratic “Houses”—a plague o’ them both! If addressing Democrats only, I should mention the protective tariff; if Republicans, the hill-tribe clamor for free coinage of silver. I should call to mind the existence and prosperous activity of a thousand lying secret societies having for their main object mitigation of republican simplicity by means of pageantry, costumes grotesquely resembling those of kings and courtiers, and titles of address and courtesy exalted enough to draw laughter from an ox.

In contemplation of these and a hundred other “results,” no less shameful in themselves than significant of the deeper shame beneath, and prophetic of the blacker shame to come, I should say: “Behold the outcome of hardly more than a century of government by the people! Behold the superstructure whose foundations our forefathers laid upon the unstable overgrowth of popular caprice surfacing the unplummeted abysm of human depravity! Behold the reality behind our dream of the efficacy of forms, the saving grace of principles, the magic of words! We have believed in the wisdom of majorities and are fooled; trusted to the good honor of numbers, and are betrayed. Lo, this is the beginning of the end of the dream!”

Our no government has broken down at every point, and the two irreconcilable elements whose suspensions of hostilities are mistaken for peace are to try their hands at each other’s tempting display of throats. There is no longer so much as a pretense of amity; apparently there will not much longer be a pretense of regard for mercy and morals. Already “industrial discontent” has attained to the magnitude of war. It is important, then, that there be an understanding of principles and purposes. As the combatants will not define their position truthfully by words, let us see if it can be inferred from the actions which are said to speak more plainly. If one of the men “directing the destinies” of the labor organizations in this country, could be enticed into the Palace of Truth and “examined” by a skilful catechist he would indubitably say something like this:

“Our ultimate purpose is effacement of the distinction between employer and employee, which is but a modification of that between master and slave.

“We purpose that the laborer shall be chief owner of all the property and profits of the enterprise in which he is engaged, and have through his union a controlling voice in all its affairs.

“We purpose overthrowing the system under which a man can grow richer by working with his head than with his hands, and preventing the man who works with neither from having anything at all.

“In the attainment of these ends any means is to be judged, as to its fitness for our use, with sole regard to its efficacy. We shall punish the innocent for the sins of the guilty. We shall destroy property and life under such circumstances and to such an extent as may seem to us expedient. Falsehood, treachery, arson, assassination, all these we look upon as legitimate if effective.

“The rules of ‘civilized warfare’ we shall not observe, but shall put prisoners to death or torture them, as we please.

“We do not recognize a non-union man’s right to labor, nor to live. The right to strike includes the right to strike him.”

Doubtless all that (and the half is not told) sounds to the unobservant like a harsh exaggeration, an imaginative travesty of the principles of labor organizations. It is not a travesty; it has no element of exaggeration. Not in the last twenty-five years has a great strike or lockout occurred in this country without supplying facts, notorious and undisputed, upon which some of these confessions of faith are founded. The war is practically a servile insurrection, and servile insurrections are to-day what they ever were: the most cruel and ferocious of all manifestations of human hate. Emancipation is rough work; when he who would be free, himself strikes the blow, he does not consider too curiously with what he strikes it nor upon whom it falls. It will profit you to understand, my fine gentlemen with the soft hands, the character of that which is confronting you. You are not threatened with a bombardment of roses.

Let us look into the other camp, where General Hardhead is so engrossed with his own greatness and power as not clearly to hear the shots on his picket line. Suppose we hypnotize him and make him open his “shut soul” to our searching. He will say something like this:

“In the first place, I claim the right to own and enclose for my own use or disuse as much of the earth’s surface as I am desirous and able to procure. I and my kind have made laws confirming us in the occupancy of the entire habitable and arable area as fast as we can get it. To the objection that this must eventually, here, as it has actually done elsewhere, deprive the rest of you of places upon which legally to be born, and exclude you, after surreptitious birth as trespassers, from all chance to procure directly the fruits of the earth, I reply that you can be born at sea and eat fish.

“I claim the right to induce you, by offer of employment, to colonize yourselves and families about my factories, and then arbitrarily, by withdrawing the employment, break up in a day the homes that you have been years in acquiring where it is no longer possible for you to procure work.

“In determining your rate of wages when I employ you, I claim the right to make your necessities a factor in the problem, thus making your misfortunes cumulative. By the law of supply and demand (God bless its expounder!) the less you have and the less chance to get more, the more I have the right to take from you in labor and the less I am bound to give you in wages.

“I claim the right to maintain a private army to subdue you when you rise.

“I claim the right to make you suffer, by creating for my advantage an artificial scarcity of the necessaries of life.

“As to falsehood, treachery and the other military virtues with which you threaten me, I shall go, in them, as far as you; but from arson and assassination I recoil with horror. You see you have very little to burn, and you are not more than half alive anyhow.”

That, I submit, is a pretty fair definition of the position of the rich man who works for himself with his head. It seems worth while to put it on record while he is extant to challenge or verify; for the probability is that unless he mend his ways he will not much longer be rich, nor work, nor have a head.

II

In discussion of such murderous misdoings as those at Homestead and Coeur d’Alene it is amusing to observe all the champions of law and order gravely prating of “principles” and declaring with all the solemnity of owls that these sacred things have been violated. On that ground they have the argument all their own way. Indubitably there is hardly a fundamental principle of law and morals that rioting laborers have not footballed out of the field of consideration. Indubitably, too, in doing so they have forfeited, as they must have expected to forfeit, all the “moral support” for which they do not care. If there were any question of their culpability this solemn insistence upon it would lack something of the humor with which it is now invested, and which saves the observer from death by dejection.

It is not only in discussions of the “labor situation” that we hear this eternal babble of “principles.” It is never out of ear, and in politics is especially clamant. Every success in an election is yawped of as “a triumph of Republican (or Democratic) principles.” But neither in politics nor in the quarrels of laborers and their employers have principles a place as factors in the problem. Their use is to supply to both combatants a vocabulary of accusation and appeal. All the fierce talk of an antagonist’s violation of those eternal principles upon which organized society is founded—and the rest of it—what is it but the cry of the dog with the chewed ear? The dog that is chewing foregoes the advantage of song.

Human contests engaging any number of contestants are struggles, not of principles but of interests; and this is no less true of those decided by the ballot than of those in which the franker bullet gives judgment. Nor, but from considerations of prudence and expediency, will either party hesitate to transgress the limits of the law and outrage the sense of right. At Homestead and Wardner the laborers committed robbery, pillage and murder, as striking workmen invariably do when they dare, and as cowardly newspapers and politicians encourage them in doing. But what would you have? They conceive it to be to their interest to do these things. If capitalists conceived it to be to theirs they too would do them. They do not do them, for their interest lies in the supremacy of the law—under which they can suffer loss but do not suffer hunger.

“But they do murder,” say the labor unions; “they bring in gangs of armed mercenaries who shoot down honest workmen striving for their rights.” This is the baldest nonsense, as they know very well who utter it. The “Pinkerton men” are mere mercenaries and have no right place in our system, but there have been no instances of their attacking men not engaged in some unlawful prank. In the fight at Homestead the workmen were actually intrenched on premises belonging to the other side, where they had not the shadow of a legal right to be. American working men are not fools; they know well enough when they are rogues. But confession is not among the military virtues, and the question, Is roguery expedient? is not so simple that it can be determined by asking the first preacher that you meet.

It would be fair and fine all around if idle workmen would not riot nor idle employers meet force with force, but invoke the impossible sheriff. When the Dragon has been chained in the Bottomless Pit and we are living under the rule of the saints things will be so ordered, but in these evil times “revolutions are not made with rosewater,” and this is a revolution. What is being revolutionized is the relation between our old friends, Capital and Labor. The relation has already been altered many times, doubtless; once, we know, within the period covered by history, at least in the countries that we call civilized. The relation was formerly a severely simple one—the capitalist owned the laborer. Of the difficulty and the cost of abolishing that system it is needless to speak at length. Through centuries of time and with an appalling sacrifice of life the effort has gone on, a continuous war characterized by monstrous infractions of law and morals, by incalculable cruelty and crime. Our own generation has witnessed the culminating triumphs of this revolution, and now, while still the clank of the falling chains is echoing through the world, and still a diminishing multitude of the world’s workers is in bondage under the old system, the others, for whose liberation was all this “expense of spirit in a waste of shame,” are sharply challenging the advantage of the new. The new is, in truth, breaking down at every point. The relation of employer and employee is giving but little better satisfaction than that of master and slave. The difference between the two is, indeed, not nearly so broad as we persuade ourselves to think it. In many industries there is virtually no difference, and the tendency is more and more to effacement of the difference where it exists.

III

The “labor question”—how to get half enough to eat by working for it—is as old as appetite. It burned in Assyrian bosoms and tormented the soul of the ancient Egyptian. In his day and country the medium of exchange was grain. The banks—all except those of the Nile—were granaries, and a check was an order for so much grain. Taxes were paid in grain, salaries and bribes of state officials, soldiers’ wages, pensions, nearly everything. The wages of laborers and other persons improvident enough to work by the day were commonly paid in loaves of bread, as is shown by an account-book of the steward of an “Abode of Rameses,” which was possibly the Ramesseum at Thebes. Among the entries are such as this: “Phamenoth the 8th day. Paid out the bread to the folk, 40 persons, each 2 loaves, making 80”—which shows, too, that the worthy steward had a very pretty knack at arithmetic. When paid by the month, and sometimes when paid by the day, the laborer receiving his wages in corn got also a certain stated quantity of oil, which, however, was not considered as money, but as rations. In a papyrus preserved at Turin one Hanefer imparts some directions to one Hora concerning certain characteristic work of these old pyramid and temple builders: “Note that the men be divided into three gangs, each gang under its captain: six hundred men, making for each gang two hundred. Make them drag the three great blocks which are before the gate of the temple of Maut, and not for one single day let it be omitted to give out their portions of corn and oil.... Also let oil be given to each driver of a pair of oxen.”

Strikes and other “remedial measures” appear to have been as common then as they are now. The unions, like those of Rome later, were turbulent and insurgent.

In the twenty-ninth year of Rameses III a deputation of workmen employed in the Theban necropolis met the superintendent and the priests with a statement of their grievances. “Behold,” said the spokesman, “we are brought to the verge of famine. We have neither food, nor oil, nor clothing; we have no fish; we have no vegetables. Already we have sent up a petition to our sovereign lord the Pharaoh, praying that he will give us these things, and we are going to appeal to the governor that we may have the wherewithal to live.” The response to this complaint was one day’s rations of corn. This appears to have been enough only while it lasted, for a few weeks later the workmen were in open revolt. Thrice they broke out of their quarter, rioting like mad and defying the police. Whether they were finally shot full of arrows by the Pinkerton men of the period the record does not state.

“Organized discontent” in the laboring population is no new thing under the sun, but in this century and country it has a new opportunity, and Omniscience alone can forecast the outcome. Of one thing we may be very sure, and the sooner the “capitalist” can persuade himself to discern it the sooner will his eyes guard his neck: the relations between those who are able to live without physical toil and those who are not are a long way from final adjustment, but are about to undergo a profound and essential alteration. That this is to come by peaceful evolution is a hope which has nothing in history to sustain it. There are to be bloody noses and cracked crowns, and the good persons who suffer themselves to be shocked by such things in others will have a chance to try them for themselves. The working man is not troubling himself greatly about a just allotment of these blessings; so that the greater part go to those who do not work with their hands, he will not consider too curiously any one’s claim to exemption. It would perhaps better harmonize with his sense of the fitness of things if the disadvantages of the transitional period fell mostly to the share of his benefactors; but almost any distribution that is sufficiently objectionable as a whole to the other side will be acceptable to the distributor. In the meantime it is to be wished that the moralizers and homilizers who prate of “principles” may have a little damnation dealt out to them on account. The head that is unable to entertain a philosophical view of the situation would be notably advantaged by removal.

IV

It is the immigration of “the oppressed of all nations” that has made this country one of the most lawless on the face of the earth. The change from good to bad took place within a generation—so quickly that few of us have had the nimbleness of apprehension to “get it through our heads.” We go on screaming our eagle in the self-same note of triumph that we were taught at our father’s knees before the eagle became a buzzard. America is still “an asylum for the oppressed;” and still, as always and everywhere, the oppressed are unworthy of asylum, avenging upon those who give them sanctuary the wrongs from which they fled. The saddest thing about oppression is that it makes its victims unfit for anything but to be oppressed—makes them dangerous alike to their tyrants, their saviors and themselves. In the end they turn out to be fairly energetic oppressors. The gentleman in the cesspool invites compassion, certainly, but we may be very well assured, before undertaking his relief without a pole, that his conception of a prosperous life is merely to have his head above the surface with another gentleman underfoot.

All languages are spoken in Hell, but chiefly those of southeastern Europe. I do not say that a man fresh from the fields or the factories of Europe—even of southeastern Europe—may not be a good man; I say only that, as a matter of fact, he commonly is not. Let us not deny him his grievance: he works—when he works—for men no better than himself. He is required, in many instances, to take a part of his pay in “truck” at prices of breathless altitude; and the pay itself is inadequate—hardly more than double what he could get in his own country. Against all this his cry is justified; but his rioting and assassination are not—not even when directed against the property and persons of his employers. When directed against the persons of other laborers, who choose to exercise the fundamental human right to work for whom and for what pay they please—when he denies this right, and with it the right of organized society to exist, the necessity of shooting him is not only apparent; it is conspicuous and imperative. That he and his kind, of whatever nationality, are usually forgiven this just debt of nature and suffered to execute, like rivers, their annual spring rise constitutes the most valid of the many indictments that decent Americans by birth or adoption find against the feeble form of government under which their country groans. A nation that will not enforce its laws has no claim to the respect and allegiance of its people.

This “citizen soldiery” business is a ghastly failure. The National Guard is not worth the price of its uniforms. It is intended to be a Greater Constabulary: its purpose is to suppress disorders with which the civil authorities are too feeble to cope. How often does it do so? Mostly it fraternizes with, or is cowed or beaten by, the savage mobs which it is called upon to kill. In a country with a competent militia and competent men to use it there would be crime enough and some to spare, but no rioting. Rioting in a republic is without excuse. If we have bad laws, or if our good laws are not enforced; if corporations and capital are “tyrannous and strong;” if white men murder one another and black men outrage white women, all this is our own fault—the fault of those, among others, who seek redress or revenge by rioting and lynching. The people of a republic have always as good government, as good industrial conditions, as effective protection of person, property and liberty, as they merit. They can have whatever they have the honesty to desire and the sense to set about getting in the right way. If as citizens of a republic we lack the virtue and intelligence rightly to use the supreme power of the ballot so that it really

we are unfit to be citizens of a republic, undeserving of peace, prosperity and liberty, and have no right to rise against conditions due to our moral and intellectual delinquency. There is a simple way, Messieurs the Masses, to correct public evils: put wise and good men into power. If you can not do that for you are not yourselves wise, or will not for you are not yourselves good, you deserve to be oppressed when you submit and shot when you rise.

To shoot a rioter or lyncher is a high kind of mercy. Suppose that twenty-five years ago (the longer ago the better) two or three criminal mobs in succession had been exterminated in that way, “as the law provides.” Suppose that several scores of lives had been so taken, including even those of “innocent bystanders”—though that kind of angel does not abound in the vicinity of mobs. Suppose that no demagogue judges had permitted officers in command of the “firing lines” to be persecuted in the courts. Suppose that these events had writ themselves large and red in the public memory. How many lives would this have saved? Just as many as since have been taken and lost by rioters, plus those that for a long time to come will be taken. Make your own computation from your own data; I insist only that a rioter shot in time saves the shooting of nine.

You know—you, the People—that all this is true. You know that in a republic lawlessness is villainy entailing greater evils than it cures—that it cures none. You know that even the “money power” is powerful only through your own dishonesty and cowardice. You know that nobody can bribe nor intimidate a legislator or voter who will not take a bribe nor suffer himself to be intimidated—that there can be no “money power” in a nation of honorable and courageous men. You know that “bosses” and “machines” can not control you if you will not suffer them to divide you into “parties” by playing upon your credulity and senseless passions. You know all this, and know it all the time. Yet not a man has the courage to stand forth and say to your faces what you know in your hearts. Well, Messieurs the Masses, I don’t consider you dangerous—not very. I have not observed that you want to tear anybody to pieces for confessing your sins, even if at the same time he confess his own. From a considerable experience in that sort of thing I judge that you rather like it, and that he whom, secretly, you most despise is he who echoes back to you what he is pleased to think you think, and flatters you for gain. Anyhow, for some reason, I never hear you speak well of newspaper men and politicians, though in the shadow of your dis-esteem they get an occasional gleam of consolation by speaking fairly well of one another.

WRITERS OF DIALECT

I

WITH regard to dialect, the literary law, I take it, is about this: To be allowable in either verse or prose it must be the mother-speech, not only of the characters using it, but of the writer himself, who, also, must be unable to write equally well in the larger tongue. This was the case with Burns. Had he not been to the manner born how absurd it would have been in him to write for the few who, naturally or by study and with difficulty, can understand, instead of the many who read and love good English! For my part, I am unable to read Burns with satisfaction; and I am steadfast in the conviction that, excepting among his countrymen, few of those who parrot his praise are better able than I. Of another thing I am tolerably well assured, albeit it is nothing to the purpose, namely, that Burns was more wit than poet. Upon that proposition I am ready to do battle with all Caledonia, the pipers alone excepted.

In humorous and satirical work like, for example, The Biglow Papers, the law is relaxed, even suspended; and in serious prose fiction if the exigencies of the narrative demand the introduction of an unlettered hind whose speech would naturally be “racy of the soil” he must needs come in and sport the tangles of his tongue. But he is to be got rid of as promptly as possible—preferably by death. The making of an entire story out of the lives and loves and lingoes of him and his co-pithecans—that is effrontery. If it be urged in deprecation of this my view that it is incompatible with relish of and respect for, Miss Mary Wilkins Freeman, Miss Mary Murfree, Mr. Hamlin Garland and other curled darlings of the circulating libraries, I candidly confess that it is open to that objection. Of all such offenders against sweetness and sense I have long cherished a comfortable conviction that it were better if instead of writing things “racy of the soil” they would till it.

The talk of intelligent persons in an unfamiliar language is a legitimate literary “property,” but the talk of ignorant persons misusing their own language has value and interest to nobody but other ignorant persons and, possibly, the philologist. Literature, however, is not intended for service in advancing the interests of philology. The “general reader” whose interest in the characters of a tale is quickened by their faulty speech may reasonably boast that the ties of affinity connecting him with their intellectual condition have not been strained by stretching: it is not overfar from where he is to where he came from.

For several months the booksellers of the principal cities in this country reported that the book David Harum sold better than any other. The sales went into the hundreds of thousands. It was reviewed with acclamation by all the popular newspapers and magazines, stared at you from every “centre table” and was flung into your ears whenever you had the hardihood to enter a “parlor.” David Harum is one of the most candidly vulgar and stupid books ever proffered to the taste and understanding of “the general reader.” It is of course largely written in “dialect”—that is, in the loutly locution of an illiterate clown making a trial at his mother-speech. Its “dialect” is so particularly offensive that I suppose it to be a “transcript from nature:” persons from whom it is possible would certainly not deny themselves the happiness of speaking it; and the book may have some value to the hardy philologer tracing backward the line of linguistic evolution to the grunt of the primeval pig. To record the vocal riddances of the ignorant may be one of the purposes of popular fiction, for anything that I know, but at least its authors might, in the interest of art, charge its horrible words with something that one unaffected by softening of the brain might think to be thoughts; and perhaps they would if that pandemic infirmity had not marked them for its own.

Male and female created He them. Mary E. Wilkins Freeman furnishes forth her annual output of New-English antiques and detestables, filing their teeth with their tongues, to the inexpressible uncomforting of the auditory nerve. Mary Murfree, in perpetual session on the Delectable Mountains, with a lapful of little clay-eaters and snuff-rubbers, sweats great beads of blood to build the lofty crime and endow it with enough galvanic vitality to stand alone while she reaches for more mud for a new creation. There follows an interminable line of imitators and imitatresses, causing two “dialects” to grow where but one grew before, and rabbiting the literary preserve with a multiplication of impossibles to speak them. And we forbid them not, for of such is the kingdom of American letters.

Now, the “dialect” of which these persons are so enamored as to fill whole volumes with it is not dialect; it is simply English as spoken by none but uneducated persons and “recorded” by those to whom ignorance is attractive and seems picturesque. To a sane intelligence it is neither. Such an intelligence regards it with tolerance or aversion—that depends on whether in life it is modest or presumptuous; in letters, subordinate and incidental or dominant and essential. The writers named—they and their literary co-populists, an innumerable commonalty—love ignorance for its own sake. They seem to think, and indubitably do think, that the lives and adventures, the virtues and vices, joys and sorrows of the illiterate are more interesting than those prone to grammar and ablution. To those fortuitous collocations of peasant instincts and pithecan intuitions which these writers call their understandings a sentiment is deemed to have an added value when expressed in coarse and faulty speech. So they give us whole books of it, coddle the resulting popularity as “fame” and prosper abundantly by their sin.

There are dialects which in literary work are legitimate and acceptable—to those who understand. That of Burns, for example, is spoken by thousands of cultivated persons and was his own mother-tongue. He erred in writing in it, as do all having command of the better and more spacious speech that assures a wider attention, but in so doing, he broke no laws of taste nor of sense. The matter is simple enough. A true dialect is legitimate; the faulty speech of an educated person in an unfamiliar tongue is legitimate, as is that of a child; but the lame locution of the merely ignorant—the language of the letterless—that is not dialect, and in any quantity in excess of an amount that may be needful in fiction for vraisemblance, or in verse for humor, is reasonless and offensive. As to poetry, our literature contains no line of that in any such speech. The muse is not so feasible; she does not submit herself to the embrace of a yokel—not even to a Tennyson wearing the smock of a northern farmer.

In fiction the limits of dialect that is not dialect are plainly defined, not by usage of the masters, for none than masters go more often wrong—as none but they can afford to do—but by reason and the sense of things. If in evolution of his plot the story teller find it expedient to seek assistance from the “man o’ the people” as a subordinate character, that worthy person must needs use the speech of his tribe; as actors, having to wear something—a regrettable necessity—may garb themselves in the costume of the time of the play, however hideous it may be. But beyond this the teller of stories that are not true is denied the right to go. To take for hero or heroine a person unable to speak the language of the tale, whose conversations are turbid swirls in the clear stream of the narrative, is an affront justifiable only by a moral purpose presumably in equal need of justification.