What strikes one, however, as most curious in the controversy between the Short-Hairs and the Swallow-Tails is the illustration it affords of the rigidity with which every class or grade in civilization treats its own social conventions, whatever they may be, as final, and as having some subtle but necessary connection with morals. When the Indian squats round the tribal pot in his breech-clout, and eats his dinner with his dirty paw, he is fully satisfied that he is as well equipped, both as regards dress and manners, not only as a man need be, but as a man ought to be. The toilet, the chamber, and the dinner-table of a plain New England farmer he treats as wasteful and ridiculous excess, and if good for anything, good only for plunder. The farmer, on the other hand, loathes the Indian and his ways, and thinks him a filthy beast, and that he (the farmer) has reached the limits of the proper as regards clothes and food and personal habits, and that the city man who puts greater elaboration into his life is a fribble, who is to be pitied, if not despised and distrusted. In short, we can hardly go one step into the controversy without coming on the old question, What are luxuries and what necessities? and, as usual, the majority decides it in the manner that best suits itself. It may be said without exaggeration that the progress of civilization has consisted largely in the raising of what is called "the standard of living," or, in other words, the multiplication of the things deemed necessary for personal comfort, and, as this raising of the standard has always been begun by the few, the many have always fought against it as a sign of selfishness or affectation until they themselves were able to adopt it.
The history of the bath furnishes a curious though tolerably familiar illustration of this. The practice of bathing disappeared from Western Europe with the fall of the Roman Empire. The barbarians were themselves dirty fellows, like the Indians, and their descendants remained dirty in spite of the growth of civilization among them, putting their money, like the Short-Hair, mainly into jewels and other ornaments. As long as linen was scarce and dear, changes were, of course, seldom made, and the odor of even "the best society" was so insupportable that perfumes had to be lavishly used to overcome it. The increased cheapness of linen and more recently of cotton, and the increased facilities for bathing, have in our own day made personal cleanliness a common virtue; but an occasional bath is still as much as is thought, through the greater part of the world, compatible with moral earnestness and high aims. Of late, indeed within the memory of the present generation, persons mainly belonging to the wealthier class in England have boldly begun to bathe every day, and they have finally succeeded in establishing the rule that a gentleman is bound to bathe, or "tub," as they call it, every day, and that the usage cannot be persistently neglected without loss of position. Indeed, there are few social casuists in England who would decide, without great hesitation and anxiety, that any English-speaking man was a gentleman who did not take a daily bath. That this view of the matter should be accepted by the great body of those who would rather not bathe every day is not to be expected, nor is it to be wondered at that they should consider it offensive, and that the practice of sponging one's self in cold water every morning should in caucuses be looked on as a disqualification for political life. There is, of course, a necessary and provoking, though tacit, assumption of superiority in the display of greater cleanliness than other people show, just as there is in coming into a room and finding fault with the closeness of the air in which other people are sitting comfortably. It is tantamount to saying that what is good enough for them is not good enough for you, and they always either openly or secretly resent it.
The popular distrust of the practice of wearing white cravats in the evening may be traced to the same causes. The savage makes no change of toilet for the evening. He dresses for war and religious ceremonies, but he goes to a social reunion or feast in such clothes as he happens to have on when the invitation finds him. The plain man of civilized life, under similar circumstances, puts on a clean shirt and his best suit of clothes. This suit, among the European peasantry, is apt to be of simply the same cut and material as the working suit, or, as it would be called in Brooklyn, "the garb of toil." Among Americans, it is a black suit, like that of a clergyman, and includes a silk cravat, generally black, but permissibly colored. The whole matter is, however, one of pure convention. Now, it has been found of late years a matter of convenience, and of great convenience especially to hard-worked men and men of moderate means who are exposed to the constant social demands of the great cities of the world, to have a costume in which one can appear on any festive occasion, great or small, which all, gentle or simple, are alike expected to wear, which is neither rich nor gaudy, and in which every man may feel sure that he is properly dressed; and the dress fixed on for this purpose now throughout the civilized world is the plain suit of black, with the swallow-tailed coat, commonly called "evening dress."
Nothing can be simpler or less pretentious, or more democratic. Nobody can add anything to it or take anything away from it. Many attempts to modify it have been made during the last thirty years by leaders of fashion, and they have all failed, because it meets one of the great wants of human nature. It is only within the last fifteen years that it has obtained a firm foothold in American cities. People looked on it with suspicion, as a sign of some inward and spiritual naughtiness, and regarded the frock-coat with its full skirts as the only garment in which a serious-minded man, with a proper sense of his origin and destiny, and correct feelings about popular government, could make his appearance in a lady's parlor. Why, nobody could tell, for there was a time, not very far back, when the frock-coat was itself an innovation. Of late—that is, within, perhaps, twenty years—the Swallow-Tails of the world have exchanged the black or colored for a white cravat, and justify themselves by saying that it not only looks cleaner, but is cleaner of necessity than a silk one, and that you cannot look too clean or fresh about your throat when you present yourself in a lady's house on a festive occasion. Nevertheless, the plain, blunt men are not satisfied. They do not as yet feel sure as to its meaning. They think it indicates either over-thoughtfulness about trifles or else a leaning, slight though it be, toward despotism and free-trade. They will now all, or nearly all, wear evening dress with a black cravat, but even those of them who will consent to put on a white one do so with a certain shamefacedness and sense of backsliding, and of treachery to some good cause, though they do not exactly know which.
JUDGES AND WITNESSES
The proceedings in the recent Bravo poisoning case have raised a good deal of discussion in England as to the license of counsel in cross-examination—a question which recent trials in this country have shown to possess no little interest for us also. In the Bravo inquest, as in the Tichborne case and the Beecher trial of the last year, the cross-examination of the witnesses was pushed into matters very remotely connected with the issue under trial, so that the general result of the inquiry was not, as in most cases, the eliciting of a certain number of facts bearing on the question in court, but a complete revelation of the whole private life of a family, or of a certain part of it, and even of a whole circle of families. The glaring exposure of matters usually kept close, and not even talked about, formed in fact the great fascination of these causes célèbres. It was difficult at the first blush to see how in the Beecher trial Tilton's eccentric nocturnal habits could have thrown any light upon the question of Beecher's guilt; nor in the Tichborne case was it at all apparent that an answer to the inquiry put to some witness—whether he had, at some distant period of time, had improper relations with some persons not connected with the case—could even remotely tend to settle the claimant's identity. The Pall Mall Gazette, discussing this kind of cross-examination resorted to for the purpose of breaking down the credit of a witness—of "showing him up" to the jury, and thus inducing them to pay less attention to his evidence than they otherwise would—has stated the case in the following manner: "Suppose, it says, that the legislature of a free country were some fine morning to pass a law authorizing anyone who chose to take it into his head to compel any inhabitant of the country to answer any questions he might think fit to put with regards to the other's moral character, his relations with his parents, brothers and sisters, wife and children, his business affairs, his property, his debts, and in fact his whole private life, and to do all this without there being any dispute between them or even any alleged grievance, what would be thought of such a law? Would it be endured for an instant?" Now, this, the Pall Mall Gazette continues, is to-day the law of England. It is just to this odious tyranny which anyone, by bringing a suit, can, under the vague and almost unlimited power to punish for "contempt of court," force submission.
The law on this subject is, generally speaking, the same in the United States as in England, and this tyranny, if it really exists, weighs upon us as heavily as it does upon Englishmen. The first question that suggests itself is whether this is really a fair statement of law, and, of course, the Pall Mall Gazette admits that there exist limitations of the right of cross-examination, but it contends that these are so undefined as to amount to little or nothing in the way of protection. The authorities contain little on the subject, except that cross-examination as to credit is allowed to go very far, and that judges may in their discretion stop it when it goes too far. But judicial discretion is proverbially an uncertain thing. It varies not merely with the court, but even in the same judge it is affected by the state of his temper, his curiosity, his feeling toward the counsel who is examining, and by thousands of other things that no one can know anything about or depend upon. Usually it is easier not to exercise than to exercise discretion, and the result is that the right of cross-examination is usually unchecked, and in most important cases which are widely reported the right is pushed to lengths which, with witnesses of any sensibility, amount to a process of slow torture. If the right is abused in England, it is unquestionably abused here, and probably at the time of the Beecher trial we should have had complaints about it but for the fact that in the singular society in which the parties to that case lives, a craving for notoriety had been developed which made any discussion of their private affairs less disagreeable than it is to most people. But with the great majority of mankind there is nothing more odious than the extraction, by a sharp, hostile lawyer, from their own unwilling lips, of the details of their moral history. There is probably no one in existence, however good, and however quiet his conscience may be, who can endure without a shudder the thought of every transaction of his past life being dragged out in a court of justice for the amusement of a gaping crowd. Exactly how far the right is abused, and how far the discretionary powers of courts to limit its abuse accomplish their end, it is impossible to say, for it is only in sporadic cases of unusual importance that interest in the result is strong enough to warrant a lawyer's going to great length in cross-examination. Usually, too, it should be said for the credit of the profession, reputable lawyers shrink from outraging a witness's sensibility. But after everything is admitted that can be admitted in favor of the existing state of the law, it is impossible to deny that the door is left very wide open to disgraceful assaults upon credit which inflict serious and irreparable damage.
The difficulty is not in pointing out the evil, which is plain enough, but in suggesting a remedy. The right of cross-examination is one of the most important instruments provided by the machinery of our law for the discovery of facts, and on the credibility of witnesses all cases hinge. The moment we begin to limit it by fixed rules we enter on dangerous ground. It might seem as if the solution of the problem lay in the enactment of a rule that witnesses should only be cross-examined as to their general reputation with regard to truth, and as to the matters involved in the case directly affecting their credibility; but this would by no means do. Suppose, for instance, that the suit is a common action for the purchase-money of a piece of cloth, and the defendant brings a witness who swears that he saw the defendant pay the money to the plaintiff, while the plaintiff has only his own evidence to rely upon in proof of non-payment; if, in such case, the plaintiff were merely allowed to cross-examine the witness directly, he would in all probability lose the case. The testimony would be two to one against him, and the story of the witness as the only disinterested person would probably be believed by the jury. But suppose that, on cross-examination, it turns out that this witness can give no good account of his manner of earning his living or of his place of residence; that he had been arrested not long before as a vagrant, and that down to the time of the action he had no respectable clothes, and that he suddenly became possessed of some; that he deserted from the army immediately after getting his bounty-money, and so on, there can be little doubt that his credit with the jury would be much impaired, and justly so, although no direct evidence of his being a perjurer had been introduced, and not a particle of his testimony had been strictly controverted. Everyone who has followed with any care the evidence taken in celebrated murder trials or divorce cases knows how frequently a rigid cross-examination lays bare motives and prejudices on the part of witnesses which, often without their knowing it themselves, tend to bias their account of facts.
The problem, therefore, is to devise some means by which these benefits of a searching cross-examination may be retained and yet the abuse got rid of. The only feasible way of meeting the difficulty yet proposed is that of drawing up a series of rules or general directions as to evidence which shall not attempt to prescribe formal limits for cross-examination, but shall lay down in explicit words the general principles which should govern a judge in such cases. These rules would practically be a definition of the "discretion" he is now supposed to exercise. They would, for example, direct him not to allow an examination into matters so remote in time from the case in hand that they can have no bearing on the credibility of the witness; not to allow questions to be put which are plainly malicious and asked for the purpose of irritating the witness; and not to allow any examination into transactions which, though they may have a bearing on the character of a witness, have none on his credibility, e.g., an inquiry, in a murder case, of a witness in good standing, as to domestic difficulties with a deceased wife. It is not easy to lay down beforehand any rules by which we can discriminate the kind of evidence as to transactions involving moral character which ought not to affect credibility, but every one can easily imagine instances of such evidence. General directions of the kind we have just suggested are no more than a formal enunciation of the manner in which the "discretion" of a good judge would be and is exercised. They do not change the law, but they remind judges of what they may forget, and they may be appealed to by a persecuted witness with far more certainty than judicial "discretion." In the Indian Code, which is probably the best body of law that the legal reform movement begun by Bentham in the last century has yet produced, rules of this kind have been laid down, and we believe have been found to work with success.