Reflections and Comments 1865-1895

by Edwin Lawrence Godkin

"ORGANS"

The untimely decease of the Republic, the paper which was set up some months ago to express in a semi-official way the views of the Administration and its immediate adherents on public questions, has a good deal that is tragic about it, as far as its principal conductor is concerned. That a man of as much experience of politics and of newspapers as Mr. Norvell, the editor, had, should have supposed it possible to start a daily morning paper in this city at a time when a successful daily is worth millions, and when there are four already in possession of the field, without any other claims on popular attention than its being the mouth-piece of the leading politicians of the party in power, and with a capital which in his dreams only reached $500,000, and in fact only $40,000, is a curious though sad illustration of the power of the press over the imagination even of persons long familiar with it. The failure of the enterprise, however distressing in some of its aspects, is valuable as establishing more conspicuously and firmly than ever two facts of considerable importance in relation to journalism. One is, that when politicians so deeply desire an organ as to be willing to set one up for the exclusive use of the party, it is a sure sign that the party is in serious danger of extinction. The other is, that the public mind is so fully made up that the position of a newspaper ought to be a judicial one, that all attempts to make a paper avowedly partisan can only be saved from commercial failure by large capital, extraordinary ability, and well-established prestige.

"Organs" took their rise when the sole use of a newspaper was to communicate intelligence, and when men in power found it convenient to have a channel through which they could let out certain things which they wished to be spread abroad. Out of this kind of relation to the Government a small paper, which did not object to the humble rôle of a sort of official gazette, from which the earlier newspapers indeed differed but little, could, of course, always get a livelihood, and perhaps a little of the dignity which comes from having or being supposed to have state secrets to keep. But the gradual addition to the "news-letter" of the sermon known as a "leader" or "editorial article" made the relation more and more difficult and finally impossible. The more pompous, portentous, and prophetic in their character the editor's comments on public affairs became, the less disposed was the public to allow him to retain the position of a paid agent of the State. It began to feel toward him as it would have felt toward the town-crier if he had put on a gown and bands, and insisted on accompanying his announcement of thefts and losses with homilies on the vanity of life and the right use of opportunities. The editor had, in short, to conduct his business in a manner befitting his newly assumed duties as a prophet, and to pretend at least that his utterances were wholly independent and were due simply to a desire for the public good, as a prophet's ought to be. It is now very rare indeed that a government is able to induce a well-established newspaper of the first class to act as its organ in the proper sense of that term, except by working on the vanity of editors. Almost all editors are a little sensitive about the imputation of being mere commentators or critics, and a little desirous of being thought "practical men," by those engaged in the actual working of political machinery. The "old editor" in this country in fact preferred to be thought a working politician, and liked to use his paper as a piece of political machinery for producing solid party gains, and in this way to be received into the circle of "workers" and "managers" as one of themselves; and to retain this position he was always willing to "write up" any view they suggested. His successor, though he cares less about being "a worker," and is able to secure the attendance of politicians at his office without running after them, is, nevertheless, more or less flattered by the confidences of men in power, and it often takes only a small amount of these confidences to make him surrender the judicial position and accept that of an advocate, and stand by them through thick and thin. But no leading journal has ever tried this position in our day very long without being forced out of it by the demand of the public for impartiality and the consequent difficulty of avoiding giving offence in official quarters. Every administration does things either through its chief or subordinates which will not bear defence, and which its judicious friends prefer to pass over in silence. But a journalist cannot keep silent. The Government may require him to hold his tongue, but the reader demands that he shall speak; and as the public supplies the sinews of war, and pays for the prophet's robes, he is sooner or later compelled to break with the Government and to reproach it for not listening to the advice of its friends in time.

Moreover, in a country in which the press is free and newspapers abound, a party which contains a majority of the people cannot fail to have the support of a large and influential portion of the press. Its conductors, though prophets, do not wear camel's hair, nor is their diet locusts and wild honey. They form part of the community, live among the voters, and share, to a greater or less extent, their prejudices and expectations and sympathies. Every party, therefore, is sure, as long as it has a strong hold on the public, of having a strong hold on the press, and of having a considerable number of the most influential editors among its defenders. One of the sure signs that it is losing its hold on the public is the defection of the press or its growing lukewarmness. Newspapers cannot, perhaps, build a party up or pull one down, but when you see the newspapers deserting a party it is all but proof that the agencies which dissolve a political organization are at work. The successful editors may have no originating power or no organizing power, and no capacity for legislation, and may even want the prophetic instinct; but a certain intuitive sense of the direction in which the tide of popular feeling is running is the principal condition of their success, and an anxious politician may therefore always safely credit them with possessing it. If they had not had it, their papers would not have succeeded.

If the incident or its lessons should result in establishing better relations between political men and the press, the sacrifice of the unfortunate projector of the Republic will, however, be a small price to pay for a great gain. We do not, as our readers know, set up to be champions of the press, and have certainly never shown any disposition to underrate its defects or shortcomings. But there is one thing which no candid and careful observer can avoid seeing, and that is that the press of the country, as an instrument of discussion and popular education, has undergone within twenty years an improvement nothing analogous to which is to be found in the class of politicians. The newspapers are now, in the vast majority of cases in all our leading cities, conducted by men who are familiar with the leading ideas of our time and with the latest advances in science and the art, including the art of government, and who write under the influence of these ideas and these advances, and who have consequently got a standard of efficiency in legislative administration which has not yet made its way into the political class. The result is that, after making all possible allowance for the carelessness and recklessness and dishonesty of reporters, and the personal biases and enmities of editors, the men who carry on the Government, excepting a few experts, have become objects of criticism on the part of the daily press, the depreciatory tone of which is not wholly unjustifiable or unnatural, and politicians repay this contempt with a hatred which is none the less fierce for having no adequate means of expression.

EVIDENCE ABOUT CHARACTER

There has been during the week a loud and increasing demand for the application of the legal process of discovering truth to the Tilton-Beecher case. People ask that it be carried into court, not only because all witnesses might thus be compelled to appear and testify, but because apparently there is, in the minds of many, a peculiar virtue in "the rules of evidence" used by lawyers. Witnesses examined under these rules are supposed to receive from them a strong stimulus in veracity and explicitness, while they at once expose prevarication or concealment. One newspaper eulogist went so far the other day as to pronounce the rules the product of the wisdom of all ages, beginning with the Phoenicians and coming down to our own time. There is, however, only one good reason that we know of for carrying any attack on character into court, and that is the obvious one, that the courts only can compel those who are supposed to know anything about a matter of litigation to appear and state it. But we do not know of any other advantage which can be claimed for a trial in court, in such a case, over a trial before a well-selected lay tribunal. "The rules of evidence" in use in our courts are not, as too many persons seem to suppose, deductions from the constitution of the human mind, or, in other words, natural rules for the discovery of truth under all conditions. On the contrary, they are a system of artificial presumptions created for the use of a tribunal of a somewhat low order of intelligence, and are intended to produce certain well-defined and limited results, which the law considers generally beneficial. They have, that is to say, grown up for the use of the jury. The large number of exclusions which they contain are due simply to a desire to prevent jurymen's being confused by kinds of testimony which they are not supposed to have learning or acumen enough to weigh. If anyone will go into the City Hall and listen to the trial of even a trifling cause, he will find that the proceedings consist largely in the attempt of one lawyer to have certain facts laid before the jury and the attempts of the other to prevent it, the judge sitting as arbiter between them and applying the rules of admission and exclusion to each of these facts as it comes up. If he examines, too, in each instance what it is that is thus pertinaciously offered and pertinaciously opposed, he will find that it almost invariably has something to do with the controversy before the court—it may be near or more remote—but still something. Consequently it has, logically, a certain bearing on the case, or is, under the constitution of the human mind, proper evidence. When the judge says it is irrelevant, he does not mean that it is logically irrelevant; he means that it has been declared irrelevant on certain grounds of expediency by the system of jurisprudence which he administers. He refuses to let it go to the jury because he thinks it would befog them or turn their attention away from the "legal issue" or, in other words, from the one little point on which the law compels the plaintiff and defendant to concentrate their dispute, in order to render it triable at all by the peculiar tribunal which the Anglo-Saxon race has chosen for the protection of its rights.

It follows that our rules of evidence are unknown on the European continent and in every country in which courts are composed of judges only—that is, of men with special training and capacity for the work of weighing testimony—or in which the legal customs have been created by such courts. There the litigants follow the natural order, and carry with them before the bench everything that has any relation to the case whatever, and leave the court to examine it and allow it its proper force. Our own changes in the law of evidence are all in this direction. The amount of excluded testimony—that is, of testimony with which we are afraid to trust the jury—has been greatly diminished during the last few years, and, considering the growth of popular intelligence, properly diminished. The tendency of legislation now is toward letting the jury hear everybody—the plaintiff and defendant, the prisoner, the wife, the husband, and the witness with a pecuniary interest in the result of the trial—and put its own estimate on what the testimony amounts to. But nevertheless, even now, who is there that has ever watched the preparation of a cause for trial who has not listened to lamentations over the difficulty or impossibility of getting this or that important fact before the jury, or has not witnessed elaborate precautions, on one side or another, to prevent some fact from getting before the jury? The skill of a counsel in examining or cross-examining a witness, for instance, is shown almost as much by what he avoids bringing out as by what he brings out, and no witness is allowed to volunteer any statement lest he should tell something which, however pertinent in reality, the rules pronounce inadmissible.

Now, rules of this kind are singularly unsuited to the conduct of inquiries touching character. It is true the law provides a process nominally for the vindication of character, called an action for libel, but the remedy it supplies is not a vindication properly so called, but a sum of money as a kind of penalty on the libeller, not for having assailed you, but for not having been able to prove his case under the rules of evidence. In a suit for libel, too, the parties fight their battle in the strict legal order—the plaintiff, that is to say, stands by and challenges the defendant to produce his proofs, and then fights bitterly through his counsel to keep out as much of the proof as he can. He supplies no evidence himself that is not strictly called for, and proffers no explanation that does not seem necessary to procure an award of pecuniary damages, and takes all the pains possible to bring confusing influences to bear on the jury. When we consider, too, that the jury is composed of men who may be said to be literally called in from the street, without the slightest regard to their special qualifications for the conduct of any inquiry, and that they are apt to represent popular passions and prejudices in all conspicuous and exciting cases, we easily see why a trial by a jury, under the common-law rules of evidence, is not the process through which a high-minded man who sought not for "damages," but to keep his reputation absolutely spotless in the estimation of his neighbors, would naturally seek his vindication.

It cannot be too often said, in these times when great reputations are so often assailed and so often perish, that nobody who has not deliberately chosen the life of a stoical recluse is justified either in refusing to defend his reputation or in defending it by technical processes if any others are within his reach. It is, of course, open to any man to say that he cares nothing for the opinion of mankind, and will not take the trouble to influence it in any manner in regard to himself. But, if he says so, he is bound not to identify with himself, in any manner, either great interests or great causes. If he makes himself the champion of other people's rights, or the exponent of important principles, or has through any power of his achieved an influence over other people's minds sufficiently great to make it appear that certain doctrines or ideas must stand or fall by him, he has surrendered his freedom in all that regards the maintenance of his fame.