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mitted, though at first reluctantly and Let us, then, look the system which cautiously, to the prosecution to show, is thus approaching us gravely in the as part of its evidence in chief, that face; recapitulating to some extent, as the defendant was an expert in the we do so, the points which suggested counterfeiting art. The next step, themselves incidentally in the review which was taken by some of our West- given by us of the two cases especially ern courts, was to permit the prosecu- selected by us for consideration. And tion, in homicide cases, to prove also first, with regard to the first practice as part of the evidence in chief, that the touched by us, that which authordefendant was a man of bloodthirsty izes the prosecution to put in issue, as and violent temper. If the principle evidence in chief, the defendant's charof the latter case, at least, holds good, acter, by way of showing his liability it is difficult to see what further obsta- to commit the particular crime. Notice, cles remain in the way of our adopting first, the debasement which the pubthe civil-law practice, in this respect, as lic mind must suffer from the judicial a whole.

exhibition of prurient psychological Then, towards the defendant's com- detail. Nothing can be worse in this pulsory examination we have recently respect than the displays listened to by made great strides. It is true that the greedy audiences in what are considstatutes recently enacted in this re- ered the more “interesting ” cases, spect only permit such an examination and which are subsequently through after the defendant has voluntarily the press presented to the public at placed himself on the witness-stand. large. We have before us in the third But the experience of the few months volume of the new series of the Neue that have elapsed since the passage of Pitaval the report of a homicide case, these statutes show that there will be that of Count Gustavus Chovinzky and few criminal cases in the States where of Julie Ebergenyi, in which the genthese statutes are in force in which eral sexual tendencies of the defendthis exposure will not be made. The ants, and their victims, the wife of the fact is, first, that the temptation to ven- first, were made the subjects of the ture testifying in his own behalf, to a minutest and most discursive exploraman whose life and liberty are at stake, tion; and in which, according to the is irresistible, even though the probabil- reporter, who prints these details at ity be that a cross-examination will ruin large, the court-room was crowded by him; and, second, that to refuse to be some of the highest as well as by sworn will come soon to be acknowl- the most abject of the land. It is beedged as a tacit confession of guilt. fore such audiences, and then through Wherever such statutes exist, there- the press, that this emptying of the fore, defendants will be uniformly sub- most fetid contents of the human heart mitted to examination; and the main is artistically consummated. It is like difference between our own and the the baling out the contents of a putrid European practice will be that with us well, — the process is one which cannot the inculpatory examination will be con- but spread contagious disease. For ducted by the prosecuting attorney and the exploration and exhibition is not, not by the judge. Whether this will as with us, one of naked, hard fact, but be an improvement may well be ques- one of prurient motives. The worst, tioned. A judge, no matter how keen vilest, most morbid of all human demay be the spirit with which he may sires and impulses, things which we enter upon what he may consider the are impelled by every right feeling inexposure of error, is yet, in the main, stinctively to hide even from ourselves, an impartial arbiter between the two are keenly searched after, and ruthcontending parties. An attorney is, and lessly displayed to the public gaze. ought to be, simply the representative Then, second, this process destroys of one of them.

all power of rightful defence. The de

erty or life.

fendant, in the old common-law courts, real offender, wrought by this clumsy knows what he is to prepare to meet. confusing of relevant with irrelevant The issue is a single one; to this he issues. We have simply to say that adjusts his plea and calls his witnesses. by it no protection is left either to libWhatever his past may have been, he knows that the law, in its humanity, The remaining question before us has given him an opportunity for re – that of the judicial examination of form ; and that now he is to be tried the defendant on trial – invites but for a single well-defined act, as to which few remarks in addition to those which he has full notice, so as wisely to make have already been incidentally made. ready for his defence. But with the No doubt there is a class of temperacivil law, a prosecution is limited by ments which can escape this ordeal no such restraints. There is no point comparatively uninjured. Men of imin the defendant's past history, no perturbable temper and of comprehenmatter how distant or how recent, sive intellect and of quick wit may be which may not be suddenly sprung on able, during the trial, as well as during him; and when the judge's knowledge the numerous preliminary hearings, to does not enable him to touch such maintain a calm and consistent theory points, the drag-net of a general inter- of defence. But men of this class are rogatory is swept over the offender's

rare, and are at least not unknown memory.

No offence has been so among those inured to crime. The atoned for as to protect it from being consummate villain is, in fact, likely thus brought up in judgment. No to , be the most successful in the oblivion, no death of witnesses, no long execution of this most difficult task; passage of time consuming all explana- while the guiltless, from their very intory or vindicatory circumstances, are experience in crime, and from the pecuallowed to intervene between the judge liar terror which disgrace possesses to and the coveted disgraceful fact. The them, are as likely to break down in defendant goes to trial prepared to

the attempt.

Thus in the case last meet a particular issue, and he finds noticed by us, Conte, the real assassin, himself confronted with others, any played his part through a protracted one of which involves disgrace, but to cross-examination with every trait of meet which he has had no notice to candid innocence; while Leotade, his prepare. And if no other acts or ten victim, was betrayed into the apparent dencies of guilt are available, then contradiction and confusion of guilt. his prevarications on trial, — prevarica For it should be remembered, the strain tions often the convulsions of a man in is the severest to which the nervous torture, - are charged against him, and system can be exposed. Let us supon these he finds the issue is made to pose that the judge is deterred, either rest. We do not say that under this by his own humanity or by public opinsystem there is no security for inno ion, from sustaining such attempts as cence; for in a general sense, – in those of the chief justice at Toulouse, that sense which involves a free un attempts to bully, to terrify, to crush, covering of the secret frailties and pas to annihilate the victim who lies exsions of the human heart,

hausted in his clutch. Let us suppose is innocent. But we do say, that in that he simply permits the method this view there is no security for any which the German courts have in the one. No one can in safety walk the main adopted, of taking to the trial a streets, for there is no one who, if minute brief of all that the witnesses under trial, cannot be exposed to an for the prosecution are expected to investigation more or less destructive. testify to, and then examining the deWe have no time here to dwell on dis fendant in advance on each point. Let arrangement of judicial mechanism, and us remember how protracted, how multhe consequent frequent escape of the tifarious, and how exhausting such an - NO. 153.


no man


examination must be ; and then let us the common law is the system of perinquire which of us could submit our- sonal liberty, of manly independence selves to such a test, even though the and self-respect. It was produced by topic might be the most innocent event these great qualities, and these, in rein our past lives, without being betrayed turn, it fortifies and protects. If it into embarrassments and inconsisten. makes every man's home his castle, cies which may readily be received as and if these castles are sometimes a confessions of guilt. And then let us little too roughly garrisoned, let us rerise from this personal view to the gen. member that they are not merely the eral considerations of public policy to shelters which protect the rights of which the issue thus ascends. The the individual, but the fortresses which civil law and with this recollection assure the grandeur of the state. And let us conclude - in this as in all other if, in declaring that no man shall be respects is the product of despotism. forced to degrade himself by his own Its object is to level the citizen to the lips, the same common law may give in grade of the slave. It recognizes in him isolated cases impunity to crime, let it no sanctity of character, just in the be also remembered that by this prosame way that it awards to him no cess it not merely implants in the indisanctity of home. He is the creature of vidual breast a consciousness of selfthe government that overshadows him; respect and sanctity which ultimately and at its command he must in public makes crime less frequent, but it sumunveil the most secret motives of his mons for the commonwealth the serheart; and the system is one, there. vices of high-toned, strong, and rightfore, which produces, not freemen, but fully loyal men. Let us beware lest, in tools; not high personal enterprise, infringing on this principle, we underbut apathetic sloth ; not political liber- mine some of the foundations, not merely ty, but political torpor and death. But of personal liberty, but of the public weal.

Francis Wharton.



COMMITTEE of Congress has British tonnage had risen to 7,000,000,

been busy at the great seaports of nearly a sixth of which was propelled New England and New York in ascer- by steam. Our ship-building, which in taining the condition of this branch of 1855 gave us 583,450 tons, of which industry, and has invoked the action of more than half a million tons were built Congress.

on the Atlantic coast, in 1868 had deWhen our late war begun, the South clined one half. In the last year but made many predictions, few of which 173,000 tons were built on the coasts have been fulfilled. Among other things for both coastwise and foreign comthey predicted that grass would grow

In 1855 we built 373 ships, in our ship-yards. Is this prediction and in 1868 but 69. to be verified ? Are we to withdraw Before the war, the carrying trade from the ocean, so long the field of between nation and nation employed our enterprise and renown? When 8,000,000 tons of shipping. Of these, the war commenced, our tonnage, then the British Empire furnished three 5,539,813 tons, exceeded that of the eighths, the United States a third, while British Empire. In 1868 it had de other nations supplied the residue. But clined to 4,318,309 tons, while the in 1866 our proportion had fallen to a


sixth, the British risen to a half, while the fisheries and coastwise commerce the deficit was filled by the Continent and to a few ships in the trade with of Europe.

England and her colonies. A few Before the war, two thirds of the ar daring spirits sometimes ventured to rivals from foreign ports bore the stars join the fleet from Jamaica to England, and stripes; but now two thirds of or to trade with the Spanish Isles, but the vessels which reach our ports from seizures and confiscations checked this abroad bear a foreign flag; and although spirit of adventure. the war has ended, our vessels in the The Revolution swept away our ships, foreign trade still diminish. In the but put us on our mettle ; the Colonies first nine months of the past fiscal year had no navy; their great seaports were our tonnage in the foreign trade de- occupied or ruined by the foe; but our clined fourteen per cent, while the for- county of Essex constituted itself our eign tonnage gained twenty-eight per Navy Department, discarded the pupcent. At this rate, it will require but pet sterns and full bows, and built ships seven years to triple the arrivals of for that made the run in eleven days from eign ships, and to banish us from the Salem to Ireland ; and in the last year carrying trade of the world. Unless of the war, Salem and Beverly, with something is done, we, with our prime- twenty gun - ships that outsailed and val forests, virgin ore-beds, and enter often outfought the best ships of Engprising youth, shall no more unfurl our land, held the control of the British flag in foreign ports, but must be con Channel and raised the rate of insurfined to our lakes, rivers, and coast ance to ten per cent. Their success wise trade, in which all foreign com contributed materially to the terminapetition is precluded. It is painful to tion of the confiict. contemplate such a result. Our marine At the close of the war our cruisers has been one of the great elements of were converted into merchantmen, and our strength. Without it, how could we soon took an active part in commerce, have blockaded a coast of three thou- outsailing the ships of all other nations, sand miles ? How opened the Missis and opening the Baltic, the Meditersippi ? How recovered our Southern ranean, India, Africa, China, Brazil, seaports and fortresses. Again, what Chili, Peru, and our Northwest Coast an income would we have realized by to the trade of the Union. the 7,000,000 tons of shipping, to which When our new Constitution took efwe might have risen! At thirty dollars fect, the first register of our shipping only per ton, it would have exceeded showed but 201,000 tons, or less than two hundred millions. Its manage the tonnage on Lake Erie in 1860. ment, its repairs, and dependent trades Under duties averaging but eleven would have sustained nearly a million per cent for the first epoch of twentyof families and furnished a market for

one years, our tonnage rose

from the surplus of as many engaged in ag 201,000 tons in 1789 to 1,424,748 tons riculture, who must suffer from com in 1810, and then the effect of the petition if consumers are converted embargo of 1808 checked its progress. into producers.

Its increase was 700 per cent. During We cannot afford to part with our this period, although the country was marine. We must devise a remedy weak, Adams founded the navy, laid for its decline. Let us trace its growth the keels of four ships of the line, and consider what gave it vitality, what and Suffolk and Essex counties raised policy ministered to its growth, what funds and built frigates for the nameasures have checked its progress

tion. and produced a premature decay, while But there was soon a change of other interests prosper.

dynasty. The Democracy came into Before the Revolution, Great Britain power, abandoned the large ships, built confined us as much as she could to a few gunboats, adopted the Chinese

" 1830



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policy, and embargoes, culminating in tons in 1848; and, under the same tariff, war, succeeded.

to 583,450 tons in 1855, -an increase of Adams

eightfold in a period of thirteen years. "Had bid upon the Atlantic shore

The following table shows the tonNew navies ride, new thunders roar"; nage built in the United States at differand if he could have put ten millions ent periods : into ships of the line, or frigates, would


Tons. have saved a third of the active capital In 1820


In 1853 425,571 of the country, sacrificed by embargoes,


1855 505,152 war, and duties ; but Jefferson and

1833 153,455

“ 1862 175,076 1844 71,732

1868 285,304 Madison succeeded. Quincy, Lloyd,

1848 262,581 and Webster struggled in vain, and commerce was prostrated.

We come now to the present epoch, During the second epoch of twenty- commencing in 1861, and with a tariff one years, from 1810 to 1831, under carried up from 15 per cent in 1860 to duties averaging thirty percent, tonnage, an average of 42 per cent in 1869, we instead of gaining seven hundred per find again the decline we might well cent, actually fell twelve per cent, or expect from the history of the past, from 1,424,748 tons in 1810 to 1,267,847 loss of 22 per cent in place of a gain of tons in 1831.

430 per cent, a fall from 5,539,813 But in 1831 our debt had diminished;

tons in 1861 to 4.318,309 tons in 1869. the country would no longer see its

And of this residue more than three commerce crushed; there was

millions of tons are on our lakes and uprising of the people,” and under the rivers, or in coastwise trade, where we auspices of Henry Clay a compromise have a monopoly; while in July last was made, under which our duties fell, twenty-seven millions of our imports with a slight reaction in 1842, to an

were brought in foreign vessels, and average of 16 per cent, which lasted but ten millions in American. thirty years, — from 1831 to 1861. Our It may be urged by some who have navigation at once revived, and ex- not studied this question, that the deceeded the tonnage of England, gain- cline in our shipping is due to the ing 420 per cent, — from 1,267,847 tons war, yet neither Secession nor English in 1831 to 5,539,813 tons in 1861. cruisers deprived us of one eighth of

The following table illustrates the our tonnage. It was not destroyed by progress and decline of our shipping:

the foe. Some may think the loss due

to a change of measurement, but this Tonnage in

1789 201,562

was immaterial, as the loss in one class 1,424,748 is compensated by a gain in others. 1831 1,267,847

Nor is it due to the fact that trade is 1841 1852

unprofitable, for we have merchants 5,539,813 whose ships, built before the war, have

4,318,309 made fair returns for the past eight Registered steam tonnage in 1861 102,608

years. in

774.596 Did we not know that many of our 977,476

laws were made in the hurry of the Ship-building, which in 1830 had fallen war, when Congress had put out its to 52,686 tons a year, rose under the arms to grasp every source of revenue, compromise to 153,455 tons in 1833. we might conceive that our legislators The susceptibility of America to a had been guided by a spirit hostile to change of duties was shown in 1844, navigation, for as the law stands to-day when it fell, under the influence of a it provides: tariff of 27 per cent adopted in 1842, to First. That we shall not build any 71,732 tons; but rose again, with the ships for foreign trade. 16 per cent tariff of 1846, to 262,581 Second. That we shall buy none.



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2,130, 744

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Enrolled steam tonnage

1868 1861 1868

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