Did the black men, while yet slaves, give to the master their own unbiased opinion of the institution of slavery? Not with any degree of frequency. The application is obvious.
Another of the fictions of fiction upon which the vicious build, and which has disarmed thousands before the battle, is the insistency with which the idea is presented that a man (or woman) who is honestly and truly and conscientiously religious, is therefore necessarily moral or honorable; that he is a hypocrite in his religion if he is a knave in his life. Observation and history and logic are all against the theory. Some of the most exaltedly religious men have been the most wholly immoral. It was honest religion that burned Servetus and Bruno. They were not hypocrites who hunted witches. It is not hypocrisy that draws its skirts aside from a "fallen" sister, and immorally marries her companion in illicit love to purity and innocence. Do you know any religious father (or many mothers) in this world who would refuse to allow their son, whom they know to be of bad character, to marry a girl who is as pure and spotless and suspicion-less as a flower? "She will reform him," they say. "It will be good for him to marry such a girl." And how will it be for her? Does the religious man or woman not take this view of morals? Has right and wrong, sex? Is honor and truthfulness toward others limited in application? Have you a right to deceive certain people for the pleasure or benefit of other people? If so where is the boundary line? Would the girl marry you or your son if she knew the exact truth – if she were to see with her own and not with your eyes —all of your life? Would you be willing to take her with you, or for her to go unknown to you, through all the experiences of your past and present? No? Would you be willing to marry her if she had exactly your record? No? You truly believe then that she is worthy of less than you are? Honor does not demand as much of you for her as it does of her for you? You would think she had a right – you would not resent it if her life had been exactly what yours was and is, and if she had deceived you? Is that which is coarse or low for women not so for men? Why is it that men will not submit to, if it comes from women, that which they impose upon women whom they "adore" and "truly respect?"
Would women accept this sort of respect and adoration if they were not dependents? Does literature throw a true or a fictitious light on such questions as these?
To whose advantage is it to sustain such fictitious standard of morals, of justice, of love, of right, of manliness, of honor, of womanly dignity and worth? To whose advantage is it to teach by all the arts of fiction that contentment with one's lot – whatever the lot may be – is a virtue? Yet it is one of the fictions of fiction that the contented man or woman is the admirable person. All progress proves the contrary. To whose advantage is it to insist that virtue is always rewarded – vice punished? We know it is not true. Is it not bad enough to have been virtuous and still have failed, without having also the stigma which this failure implies under such a code? We all know that vicious success is common – that often vice and success are partners for life and that in death they are not divided; that the wicked flourish like a green bay-tree – why blink it in fiction? Why add suspicion to failure and misfortune, and gloss success with the added glory that it is necessarily the result of virtue? To those who know how false the theory is, it is a bad lesson – to those who do not know it, it is a disarmament against imposition.
Some of the fictions of fiction have their droll side in their nâive contradictions of each other. These examples occur to me:
"Women are timid and secretive." "They can't keep a secret." "They are the custodians of virtue." "They are the 'frailer' sex." "Frailty, thy name is woman." "With the passionate purity of woman."
"Abstract justice is an attribute of the masculine mind." "Man's inhumanity to man makes countless thousands mourn."
"No class was ever able to be just to – to do justly by another class – hence the need of popular representation." "Women should take no part in politics."
"Women are harder upon women than men are." "He disgraced his honored name by actually marrying his paramour."
"We are happy if we are good."
"He was one of the best and therefore one of the saddest of men."
But why multiply examples. Many – and different ones – will occur to every thinking mind, while illustrations of the particular fictions of fiction, which have gone farthest to cripple you or your neighbor, will present themselves without more suggestions.
A DAY IN COURT
I. CRIMINAL COURT
To those accustomed to the atmosphere and tone of a court room, it is doubtful if its message is impressive. To one who spends a day in a criminal court for the first time after reaching an age of thoughtfulness, it is more than impressive; it is a revelation not easily forgotten. The message conveyed to such an observer arouses questions, and suggests thoughts which may be of interest to thousands to whom a criminal court room is merely a name. I went early. I was told by the officer at the door that it was the summing up of a homicide case. "Are you a witness?" he asked when I inquired if I was at liberty to enter. "Were you subpoenaed?"
"No," I replied, "I simply wish to listen, if I may, to the court proceedings. I am told that I am at liberty to do so."
He eyed me closely, but opened the door. Just as I was about to pass in he bent forward and asked quickly:
"Friend of the prisoner?"
"No."
He said something to another officer and I was taken to an enclosed space (around which was a low railing) and given a chair. I afterward learned that it was in this place the witnesses were seated. He had evidently not believed what I said.
There was a hum of quiet talk in the room, which was ill-ventilated and filled with men and boys and a few women. Of the latter there were but two who were not of the lower grades of life. But there were all grades of men and boys. The boys appeared to look upon it as a sort of matinee to which they had gained free admission.
The trial was one of unusual interest. It had been going on for several days. The man on trial (who was twenty-four years of age and of a well-to-do laboring class,) had shot and killed his rival in the affections of a girl of fourteen. Some months previous, he had been cut in the face, and one eye destroyed, by the man he afterward killed, who was at the time of the killing out on bail for this offense. I had learned these points from the scraps of conversation outside the court room, and from the court officer. This was the last day of the trial. There was to be the summing up of the defense, the speech of the prosecutor, the charge of the judge, and the verdict of the jury.
The prisoner sat near the jury box, pale and stolid looking. The spectators laughed and joked. Court officers and lawyers moved about and chaffed one another. There was nothing solemn, nothing dignified, nothing to suggest the awful fact that here was a man on trial for his life, who, if found guilty, was to be deliberately killed by the State after days of inquiry, even as his victim had been killed, in the heat of passion and jealousy, by him.
The State was proposing to take this man's life to teach other men not to commit murder.
"Hats off!"
The door near the Judge's dais had been opened by an officer, who had shouted the command as a rotund and pleasant-faced gentleman, with decidedly Hibernian features, entered.
He took his seat on the raised platform beneath a red canopy. The buzz of voices had ceased when the order to remove hats was given. It now began again in more subdued tones. In a few moments the prisoner's lawyer – one of the prominent men of the bar – began his review of the case. He pointed out the provocation, the jealousy, the previous assault – the results of which were the ghastly marks and the sightless eye of the face before them. He plead self defense and said over and over again, "If I had been tried as he was, if I had been disfigured for life, if I had had the girl I loved taken from me, I'd have killed the man who did it, long ago! We can only wonder at this man's forbearance!"
I think from a study of the faces that there was not a boy in the room who did not agree with that sentiment – and there were boys present who were not over thirteen years of age.
The lawyer dwelt, too, upon the fact that the prosecutor would say this or that against his client. "He will try to befog this case. He will tell you this and he will try to make you think that; but every man on this jury knows full well that he would have done what my client did under the same conditions." "The prosecutor told you the other day so and so. He lied and he knew it." The defender warmed to his work and shook his finger threateningly at the prosecutor. Every one in the room appeared to think it an excellent bit of acting and a thoroughly good joke. No one seemed to think it at all serious, and when he closed and the State's attorney arose to reply there was a smile and rustle of quiet satisfaction as if the audience had said:
"Now the fur will fly. Look out! It is going to be pretty lively for he has to pay off several hard thrusts."
There was a life at stake; but to all appearances no one was controlled by a trifle like that when so much more important a thing was risked also – the professional pride of two gentlemen of the bar. In the speech which followed, it did not dawn upon the State's attorney – if one may judge from his words – that he was "attorney for the people," and that the prisoner was one of "the people." It did not appear in his attitude if he realized that the State does not elect him to convict its citizens, but to see that they are properly protected and represented.
Surely the State is not desirous of convicting its citizens of crime. It does not employ an attorney upon that theory; but is this not the theory upon which the prosecutor invariably conducts his cases? Does he not labor first of all to secure every scrap of evidence against the accused and to make light of or cover up anything in his favor? Is not the State quite as anxious that he – its representative – find citizens guiltless, if they are so, as that he convict them if they are offenders against the law? Is not the prosecutor offending against the law of the land as well as against that of ordinary humanity when he bends all the vast machinery of his office to collect evidence against and refuses to admit – tries to rule out – evidence in favor of one of "the people" whose employee he is?
These questions came forcibly to my mind as I listened to the prosecutor in the trial for homicide. He not only presented the facts as they were, but he drew inferences, twisted meanings, asserted that the case had but one side; that the defendant was a dangerous animal to be at large; that his witnesses had all lied; that his lawyer was a notorious special pleader and had wilfully distorted every fact in the case. He waxed wroth and shook his fist in the face of his antagonist and appealed to every prejudice and sentiment of the jury which might be played upon to the disadvantage of the accused. He sat down mopping his face and flashing his eyes. The Judge gave his charge, which, to my mind, was clearly indicative of the fact that he, at least, felt that there were two very serious sides to the case. The audience which had so relished the two preceding speeches, found the Judge tame, and when the jury filed out, half of the audience went also. Most of them were laughing, highly amused by "the way the prosecutor gave it to him" as I heard one lad of seventeen say. The moment the Judge left the stand there was great chaffing amongst the lawyers, and much merry-making. The prisoner and his friends sat still. The prosecutor smilingly poked his late legal adversary under the ribs and asked in a tone perfectly audible to the prisoner, "Lied, did I? Well, I rather think I singed your bird a little, didn't I?" When he reached the door, he called back over his shoulder – making a motion of a pendant body – "Down goes McGinty!" Everyone laughed. That is to say, everyone except the white-faced prisoner and his mother. He turned a shade paler and she raised a handkerchief to her eyes. Several boys walked past him and stopped to examine him closely. One of them said, so that the prisoner could not fail to hear, "He done just right. I'd 'adone it long before, just like his lawyer said."
"Me too. You bet," came from several other lads – all under twenty years of age.
And still we waited for the jury to return. The prisoner grew restless and was taken away by an officer to the pen. There was great laughter and joking going on in the room. Several were eating luncheons abstracted from convenient pockets. I turned to an officer, and asked:
"Do you not think all this is bad training for boys? It must show them very clearly that it is a mere game of chance between the lawyers with a life for stakes. The best player wins. They must lose all sense of the seriousness of crime to see it treated in this way."
"Upon the other hand," said he, "they learn, if they stay about criminal courts much, that not one in ten who is brought here escapes conviction, and not one in ten who is once convicted, fails to be convicted and sent up over and over again. Once a criminal, always a criminal. If they get fetched here once they might as well throw up the sponge."
"Is it so bad as that?" I asked. He nodded. "Is there not something wrong with the penal institutions then?" I queried.
"How?"
"You told me a while ago," I explained, "that almost all first crimes or convictions were of boys under seventeen years of age. Now you say that not one in ten brought here, accused, escapes conviction, and not one in ten of these fails to be convicted over and over again. Now it seems to me that a boy of that age ought not to be a hopeless case even if he has been guilty of one crime; yet practically he is convicted for life if found guilty of larceny, we will say. Is there not food for reflection in that?"
"I do' know," he responded, "mebby. If anybody wanted to reflect. I guess most boys that hang around here don't spend none too much time reflectin' though – till after they get sent up. They get more time for it then," he added, dryly.
"Another thing that impresses me as strange," I went on, "is the apparent determination of the prosecutor to convict even where there is a very wide question as to the degree of guilt."
"I don't see anything queer in that. He's human. He likes to beat the other lawyer. Why, did you know that the prosecutor you heard just now is cousin to a lord? His first cousin married Lord – ."
This was said with a good deal of pride and a sort of proprietary interest in both the lord and the fortunate prosecutor. I failed to grasp just its connection with the question in point to which I returned.
"But the public prosecutor is not, as I understand it, hired to convict but to represent the 'people,' one of whom is the accused. Now, is the State interested in convictions only – does it employ a man to see that its citizens are found guilty of crime, or is it to see that justice is done and the facts arrived at in the interest of all the people, including the accused?"
"I guess that is about the theory of the State," he replied, laughing as he started for the door, "but the practice of the prosecuting attorney is to convict every time if he can, and don't you forget it."
I have not forgotten that nor several other things, more or less important to the public, since my day in a Criminal Court.
It may be interesting to the reader to know that the jury in the case cited, disagreed. At a new trial the accused was acquitted on the grounds of self defense and the prosecutor no doubt felt that he was in very poor luck, indeed: "For," as I was told by a court officer, "he has lost his three last homicide cases and he's bound to convict the next time in spite of everything, or he won't be elected again. I wouldn't like to be the next fellow indicted for murder if he prosecutes the case, even if I was as innocent as a spring lamb," said he succinctly.
Nor should I.
But aside from this thought of the strangely anomalous attitude of the State's attorney; aside from the thought of the possible influence of such court room scenes upon the boys who flock there – who are largely of the class easily led into, and surrounded by, temptation; aside from the suggestions contained in the officer's statement – which I cannot but feel to be somewhat too sweeping, but none the less illustrative, that only one in ten brought before the Criminal Court escapes conviction, and only one in that ten fails to be reconvicted until it becomes practically a conviction for life to be once sent to a penal institution; aside from all this, there is much food for thought furnished by a day in a Criminal Court room. A study of the jury, and of the judge, is perhaps as productive of mental questions that reach far and mean much, as are those which I have briefly mentioned; for I am assured by those who are old in criminal court practice, that my day in court might be duplicated by a thousand days in a thousand courts and that in this day there were, alas, no unusual features. One suggestive feature was this. When the jury – an unusually intelligent looking body of men – was sworn for the next case, seven took the oath on the Bible and five refused to do so, simply affirming. This impressed me as a large proportion who declined to go through the ordinary form; but since it created no comment in the court room, I inferred that it was not sufficiently rare to attract attention, while only a few years ago, so I was told, it would have created a sensation. There appeared to be a growing feeling, too, against capital punishment. Quite a number of the talesmen were excused from serving on the jury on the ground of unalterable objection to this method of dealing with murderers. They would not hang a man, they said, no matter what his crime.
"Do you see any relation between the refusal to take the old form of oath, and the growth of a sentiment or conscientious scruple against hanging as a method of punishment"? I inquired of the officer.
"I do' know. Never thought of that. They're both a growin'; but I don't see as they've got anything to do with each other."
But I thought possibly they had.
II. IN THE POLICE COURT
The next week I concluded to visit two of the Police Courts. I reached court at nine o'clock, but it had been in session for half an hour or more then, and I was informed that "the best of it was over." I asked at what time it opened. The replies varied "Usually about this time." "Some where around nine o'clock as a rule." "Any time after seven," etc. I got no more definite replies than these, although I asked policemen, doorkeeper, court officer, and Justice. Of one Justice I asked, "What time do you close?"
"Any time when the cases for the day are run through," he replied. "To-day I want to get off early and I think we can clear the calendar by 10:30 this morning. There is very little beside excise cases to-day and they are simply held over with $100 bail to answer to a higher court for keeping their public houses open on Sunday. Monday morning hardly ever has much else in this court."
I was seated on the "bench" beside the Judge. At this juncture a police officer stepped in front of the desk with his prisoner, and the Justice turned to him.
"Do you swear to tell the truth, the whole tr – 'n – g b tr'th – selp y' God. Kissthebook."
The policeman had lifted the greasy volume, and with more regard for his health than for the form of oath, had carried it in the neighborhood of his left cheek and as quickly replaced it on the desk.
"What is the charge?" inquired the Justice.
"Open on Sunday," replied the officer succinctly.
"See him selling anything?"
"No. I asked for a drink an' he told me he was only lighting up for the night and wasn't sellin' nothing."
"Anybody inside?"
"Only him an' me."
"You understand that you are entitled to counsel at every stage of this proceeding," said the Justice to the accused man. "What have you to say for yourself?"
"Your Honor, I have a dye house, and a small saloon in the corner. I always light the gas at night in both and have it turned low. I had on these clothes. I was not dressed for work. I went in to light up and he followed me in, and arrested me and I have been in jail all night. I sold nothing."
"Is that so, officer?" asked the Justice.
"Yes, your Honor, it is so far as I know. I seen him in there lighting the gas, an' I went in an' asked for a drink, an' he said he wasn't selling an' I arrested him."
"Give the record to the clerk. Discharged," said the Justice, and then turning to me he explained: "You see he had to arrest the man for his own protection. If a police officer goes into a saloon and is seen coming out, and doesn't make some sort of an arrest, he'll get into trouble; so, for his protection he had to arrest the man after he once went in, and I have to require that record, by the clerk, to show why, after he was brought before me, I discharged him. That is for my protection."
"What is for the man's protection?" I asked. "He has been in jail all night. He has been dragged here as a criminal to-day, and he has a court record of arrest against him all because he lighted his own gas in his own house That seems a little hard, don't you think so?"
The Judge smiled.
"So it does, but he ought to have locked the door when he went in to light up. Perhaps he was afraid to go in a dark room and lock his door behind him before he struck a light, but that was his mistake and this is his punishment. Next!"
Most of the cases were like this or not so favorable for the accused. In the latter instance they were held in bail to answer to a higher court. Two or three were accused of being what the officer called "plain drunks" and as many more of being "fighting drunks" or "concealed weapon drunks." In these cases the charge was made by the officer who had arrested them. There was no suggestion that "you are entitled to counsel," etc., and a fine of from "$10 or ten days" to "$100 or three months" or both was usually imposed.
A pitiful sight was a woman, sick, and old, and hungry. "What is the charge against her, officer?" inquired the Justice.
"Nothing, your Honor. She wants to be sent to the workhouse. She has no home, her feet are so swollen she can't work, and – "
"Six months," said the Justice, and turned to me. "Now she will go to the workhouse, from there to the hospital, and from there to the dissecting table. Next."
I shuddered, and the door closed on the poor wretch who, asking the city for a home, only, even if that home were among criminals, received a free pass to three of the public institutions sustained to receive such as she – at least so said the Justice to whom such cases were not rare enough to arouse the train of suggestions that came unbidden to me. He impressed me as a kind-hearted man, and one who tried to be a Justice in fact as well as in name. He told me that it was not particularly unusual for him to be called from his bed at midnight, go to court, light up, send for his clerk and hold a short session on one case of immediate importance – such as the commitment of a lunatic or the bailing of some important prisoner who declined to spend a night in jail while only a charge and not a conviction hung over him.
"I have never committed anyone without seeing him personally," he explained. "Some judges do; but I never have. Only last night a man's brother and sister and two doctors tried to have me commit him as a lunatic, but I insisted on being taken to where he was. They begged me not to go in as he was dangerous; but I did, and one glance was all I needed. He was a maniac, but I would not take even such strong evidence as his relations and two doctors afforded without seeing him personally."
"And some judges do, you say?" I inquired.
"Oh yes. Next."
"Next" had been waiting before the desk for some time. The officer went through the same form of oath. I did not see a policeman or court officer actually "kiss the book" during the two days which I spent in the Police Courts. Some witnesses did kiss it in fact and not only in theory. A loud resounding smack frequently prefaced the most patent perjury. Indeed in two cases after swearing to one set of lies and kissing the Bible in token of good faith, the accused changed their pleas from not guilty to guilty and accepted a sentence without trial.
These facts did not appear to shake the confidence in the efficacy of such oaths and the onlookers in the court did not seem either surprised or shocked. Certainly the court officials were not, and yet the swearing went on. That it was a farce to the swearers who were quite willing to say they believed they would "go to hell" if they did not tell the truth and were equally willing to run the risk, looked to me like a very strong argument for a form of oath which should carry its punishment for perjury with it to be applied in a world more immediate and tangible.
The afternoon found me in a more crowded Police Court. The Justice was rushing business. I stood outside the railing in front of which the accused were ranged. The charges were made by the police officer who faced the Judge. The accused stood almost directly behind the policemen something like four feet away. I was by the officer's side and so near as to touch his sleeve, and yet I can truly say that I was wholly unable to hear one-half of the charges made; most of them appeared to relate to intoxication, fighting, quarreling in the street, breaking windows and similar misdeeds.
Some of the "cases" took less than a minute and the accused did not hear one word of the charge made. What he did hear in most cases and all he could possibly hear was something like one of these:
"Ten dollars or ten days." "Three months." "Ever been here before?"
"No, your Honor."
"Ten days."
"Officer says you were quarreling in a hallway with this woman. Say for yourself?"
"Well, your Honor, I was a little full and I got in the wrong hall and she tried to put me out and – "
"Ten dollars."
"Your Honor, I'll lose my place and I've got a wife and – " The officer led him away. Ten dollars meant ten days in prison to him and the loss of his situation. What it may have meant to his family did not transpire.
To the next "case" which was of a similar nature, the fine meant the going down into a well-filled pocket, a laugh with the clerk and the police officer who took the proffered cigar and touched his hat to the object of his arrest, who, having slept off his "plain drunk," was in a rather merry mood. Many of the accused did not hear the charges made against them by the officer; in but few cases were they told that they had a right to counsel; almost all were fined and at least two-thirds of the fines meant imprisonment. A little more care was taken, a little more time spent if the face or clothing of the accused indicated that he was of the well-to-do or educated class. Indeed I left this court feeling that the inequality of the administration of justice as applied by the system of fines was carried to its farthest limit, and that it would be perfectly possible – easy indeed – to find a man (if he chanced to be poor and somewhat common looking) behind prison walls without his knowing even upon what charge he had been put there and without having made the slightest defense. If he were frightened, or ill, or unused to courts, and through uncertainty or slowness of speech, or not knowing what the various steps meant, had suddenly heard the Judge say "Ten dollars," and had realized that so far as he was concerned it might as well have been ten thousand; it was quite possible, I say, for such a man to find himself a convict before he knew or realized what it meant or with what he was charged.
I wondered if all this was necessary, or if attention were called to it from the outside if it might not set people to thinking and if the thought might not result in action that would lead to better things.
I wondered if a rapid picture of a boy of sixteen arrested for fighting, shot through this court into association with criminals for ten days, being found in their company afterward and sent by the criminal court to prison for three months for larceny, and afterward appearing and re-appearing as a long or short term criminal, would suggest to others what the idea suggested to me? I wondered, in short, if there were less machinery for the production and punishment of crime and more for its prevention, if life might not be made less of a battlefield and hospital for the poor or unfortunate. I wondered if the farce of oaths, the flippancy of trials, the passion of the prosecutor for conviction and all the train of evils growing out of these were necessary; and if they were not, I wondered if the vast non-court-attending public might not suggest a remedy if its attention were called to certain of the many suggestive features of our courts that presented themselves to me during my first two days as an observer of the legal machinery that grinds out our criminal population.