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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. To the service of that end defendants and prisoners should, I think, be compelled to testify and denied the advantage of declining to answer, for silence is the refuge of guilt In endeavoring by austere means to make an accused person incriminate himself the French judge logically applies the same principle that a parent uses with a suspected child. When the Grandfather of His Country arraigned the wee George Washington for arboricide the accused was not carefully instructed that he need not answer if a truthful answer would tend to convict him. If he had refused to answer he would indubitably have been lambasted until he did answer, as right richly he would have deserved to be.

The custom of permitting a witness to wander at will over the entire field of knowledge, hearsay, surmise and opinion has several distinct advantages over our practice. 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. On 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 presentation 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 commonly 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, contend against each other in deceiving the court by every artifice of which they are masters. Witnesses on both sides perjure themselves freely and with almost perfect immunity 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 eye-sight 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 still an open question.

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