The Americans

by Hugo Münsterberg

The real distinctions, therefore, do not lie in the penal code, but in the way it is administered; to put it extremely, the German who is accused is guilty until he proves his innocence, while the American is innocent until he is proved guilty. A single example will make the matter clear. Any one in the United States who has been charged with murder or any other misdeed and on trial found not guilty, can never again during his whole life be tried for the same crime; not even if entirely new and convincing evidence comes up later, nor even if he should himself confess the crime. The American jurist says that the state has been given sufficient opportunity to prove the defendant’s guilt. If the counsel of the state as plaintiff has not been able to convince the jury, the accused man is legally innocent, and is protected as a matter of principle from the dread of any renewal of the accusation. In American legal opinion the German method of procedure involves a certain arbitrariness, which according to the opinion of many lawyers, is tolerated in Germany only because of the admirable quality of the judges. American jurists say that about half of the testimony admitted in the German court-room, and two-thirds admitted in the French, are entirely incompatible with the legal supposition that every man is innocent until proved guilty.

The different use of the oath is also characteristic of these two countries. The sworn testimony on the basis of “information and belief” is admitted without more ado, and so two contradictory pieces of evidence under oath are not only admissible, but are very common; and the German acceptance of the oath of one party and exclusion of that of the other seems a downright impossibility from the point of view of American law. In the same category is the requirement that the verdict of the jury shall be unanimous. The twelve jurymen may not leave the court except under surveillance until they have pronounced the verdict; and thus it happens that they often have to sleep and eat for days in the court house in order to be guarded from outside influences. If after all they can come to no agreement, the case is dropped and the situation remains exactly as it was before the trial; and the state attorney is free to bring a new accusation. Only an unanimous “guilty” or “not guilty” can be accepted. In this connection, too, is found the unusual significance of the judicial injunctions, and especially of the writ of habeas corpus, derived from Magna Charta, which says that no free man is to be deprived of life, liberty, or property, except according to the law of the land and by the verdict of his peers.

On looking over the judicial practice of the country as a whole, one will feel, quite as in Germany, that this great machinery succeeds in punishing crime and protecting society; but in America the instinctive fear of the law is accompanied by a profounder feeling that any innocent man is perfectly safe. Every trial shows, in a way, most clearly the negative side of the process, that the rights of the defendant are to be carefully protected. And if a newcomer in the country recalls certain exaggerated reports in German newspapers of corruption in American courts, he should bear in mind the words of Choate. Shortly before going as ambassador to England, he made a speech before a society of jurists, of which he was president, on the advantages and disadvantages of trial by jury. As to the theoretical possibility of bribery in such cases, he said that he could pass the matter over, since, during his experience of forty years in law, he had not seen a single case in which even one member of any jury had been accused of having been bribed. Unreliability in the administration of justice would do away at once with the fundamental principle of American social life. When men believe sincerely in their equality, they naturally develop a strong sense of justice, and regard the protection of the innocent man against every sort of prejudice, hostility, dislike, or disregard as the very highest function of the law.

We have depicted the brighter side of the American sense of equality, and may now, with a few strokes, put in the shadows. No one has denied that there are unfortunate features, although some assert that they must be accepted or else more important advantages sacrificed. A stranger is at once struck by the tendency to uniformity which arises from the belief in general equality. The spirit of comradeship is unfavourable to individual differentiation, no matter whether it is a question of a man’s hat and necktie or his religion and his theory of the universe. He is expected to demonstrate his uniformity by seeming no different from every one else. In outward matters this monotony is considerably favoured by industrial conditions, which produce staple articles in great quantities and distribute them from one end of the country to another. Exactly the same designs in fashion, arts and crafts, furniture and machinery are put on exhibition at the same time in the show-windows from New York to San Francisco. On the other hand, it is the economic custom of the American to replace everything which he uses very frequently. This is due to the cheapness of all manufactured articles and the high price of the manual labour which is necessary to make repairs. It is actually cheaper to buy new shoes and underclothing at frequent intervals than to have the old ones mended, and this also provides every man with the latest styles. If a new style of collar is brought out to-day, there will, say among the thousands of Harvard students, be hardly a hundred to-morrow wearing the old style. This tendency is, of course, aided by the general prosperity, which enables an unusually large proportion of persons to have considerably more than they need, and to indulge, perhaps imitatively, in the fashionable luxuries of the day.

As much as the general prosperity favours this rapid adoption of new fashions, it is still clear that wealth might, in itself, also help its possessors to distinguish themselves in outward ways; but this does not happen in the United States by reason of these prevalent social ideals. Now, the desire to do as others do affects even the inner life; one must play the same game and must read the same novel, not because one thinks it is better, but because others do it, and because one feels in inner accord with the social community only by loving and hating the same things as it. Those who do not like what others like, find themselves extremists at once; they are instinctively held off by society as bizarre or over-intense, and relegated to the social periphery. There are too few intermediate stages between the many who follow one another and the few who follow no one, and the finer shadings of personality are too much lost in this way. Americans ape one another as the officers of an army, and not merely in uniform, but in the adjustment of all their habits and desires, until comradeship becomes sterile uniformity.

In many ways the American inventive talent tends to relieve the general monotony. But this effort all the time to discover new solutions of this or that social problem, new surprises, new entertainments, is itself only a sort of game which is played at by all uniformly. The small city imitates the large one, the rural population imitates the metropolitan; no profession cares to keep its own social individuality; and the press and politics of the entire country tend to obliterate all professional and local differences in social life, and to make of the whole nation a huge assembly of gentlemen and ladies who, whether high or low, desire to be just gentlemen and ladies at large. It is still not difficult to-day to distinguish a gentleman of Omaha from a New Yorker; but this is in spite of the former, who, as a matter of principle, aims to present the same appearance. East and West, and recently in both North and South, one sees the same countenance, and it is seldom that one hears something of an intelligent effort to kindle local sentiment in contrast to national uniformity. There is an appeal to provincialism to free itself from the system of empty mutual imitation, and yet everybody must see that the profoundest instincts of this country are unfavourable to the development of individual peculiarities.

The dangers of this uniformity are chiefly æsthetic, although it is not to be forgotten that uniformity very easily grows into intellectual mediocrity, and under some circumstances may bring about a certain ethical listlessness. On the other hand, the unfavourable effects of that good-nature which dominates American life are all of them ethical. Their amiable good-nature is, in a certain sense, the great virtue of the Americans; in another sense, their great failing. It is actually at bottom his good-nature which permits him everywhere to overlook carelessness and crookedness, and so opposes with a latent resistance all efforts at reform. The individual, like the nation, has no gift for being cross; men avoid for their own, but more especially for others’ sake, the disagreeable excitement. Since the country is prosperous and the world wags pretty well, no one ought to grumble if he is now and then imposed on, or if some one gets an advantage over him, or makes misuse of power. Among comrades nobody ought to play the stern pontiff.

An earnest observer of the country said, not long since, that the hope of the country does not lie in those amiable people who never drop the smile from their lips, but in those who, on due provocation, get thoroughly excited. Dust is settling on the country, and there is no great excitement to shake it off. The cobwebs of economic interests are being spun from point to point, and will finally hide the nation’s ideals. Good-nature produces a great deal of self-content in the United States, and those are not the worst friends of the country who wish it might have “bad times” once more, so that this pleasant smile might disappear, and the general indifference give place to a real agitation of spirit. The affair with Spain brought nothing of the sort; there was only enough anger to produce a pleasant prickling sensation, and the easy victory strengthened in every way the national feeling of contentment. There have been a few large disasters, due to somebody’s neglect of duty, such as the burning of a Chicago theatre, which have done something to stimulate the public conscience and to impress on people how dangerous it is to let things go just as they will; but even the disastrous accidents which result from this carelessness are quickly forgotten.

The shadows are darkest where the spirit of social equality attempts artificially to do away with those differences which properly exist in school and family life. It may be partly a reaction against the over-strict bringing up of former generations; but everywhere pedagogical maxims seem senselessly aiming to carry over the idea of equality from the great social world into the nursery. It has become a dogma to avoid all constraint and, if possible, all punishment of children, and to make every correction and rebuke by appealing to their insight and good-will. Thus the whole education and schooling goes along the line of least resistance; the child must follow all his own inclinations. And this idea is nothing at bottom but a final consequence of the recognition of social equality between all persons. To constrain another person, even if he is a mere child, means to infringe his personal liberty, to offer him an ethical affront, and so to accustom him to a sort of dependence that appears to be at variance with the American idea. Of course, the best people know that lack of discipline is not freedom, and that no strength is cultivated in the child that has always followed the line of least resistance and never experienced any friction. But the mass of people thoughtlessly overlooks this, and is content to see even in the family the respect of children for their parents and elders sacrificed to this favourite dogma.

Nature happily corrects many of these evils. It may be sport, most of all, which early in the child’s life introduces a severe discipline; and here the American principle is saved, since the outwardly rigid discipline which is enforced on every participant in the game is, nevertheless, at every moment felt to be his own will. The boy has himself sought out his comrades. If he had also chosen his parents there would be nothing against their giving him a good, sound punishment occasionally, instead of yielding indulgently to all his moods. If sport and the severe competition of public life were not here to save, it would be incomprehensible that such spoiled children should grow up into a population which keeps itself so strictly organized. Lack of discipline remains, however, in evidence wherever the constraint appears to be artificial and not self-chosen. Where, for instance, the discipline of the army sometimes leads to situations which apparently contradict “sound common sense,” the free American will never forget that the uniform is nothing but an external detail apart from his inner self. And even the commanding general will resort to the publicity of the press. In intellectual matters, all this is repeated in the lack of respect shown in forming judgment; every one thinks himself competent to decide all questions, and the most competent judgments of others are often discounted, because every one thinks himself quite as good and desires to assert himself, and feels in nowise called on to listen with respect to the profounder knowledge, reasoning, or experience of another.