mitted, though at first reluctantly and cautiously, to the prosecution to show, as part of its evidence in chief, that the defendant was an expert in the counterfeiting art. The next step, which was taken by some of our Western courts, was to permit the prosecution, in homicide cases, to prove also as part of the evidence in chief, that the defendant was a man of bloodthirsty and violent temper. If the principle of the latter case, at least, holds good, it is difficult to see what further obstacles remain in the way of our adopting the civil-law practice, in this respect, as a whole.

Then, towards the defendant's compulsory examination we have recently made great strides. It is true that the statutes recently enacted in this respect only permit such an examination after the defendant has voluntarily placed himself on the witness-stand. But the experience of the few months that have elapsed since the passage of these statutes show that there will be few criminal cases in the States where these statutes are in force in which this exposure will not be made. The fact is, first, that the temptation to venture testifying in his own behalf, to a man whose life and liberty are at stake, is irresistible, even though the probability be that a cross-examination will ruin him; and, second, that to refuse to be sworn will come soon to be acknowledged as a tacit confession of guilt. Wherever such statutes exist, therefore, defendants will be uniformly submitted to examination; and the main difference between our own and the European practice will be that with us the inculpatory examination will be conducted by the prosecuting attorney and not by the judge. Whether this will be an improvement may well be questioned. A judge, no matter how keen may be the spirit with which he may enter upon what he may consider the exposure of error, is yet, in the main, an impartial arbiter between the two contending parties. An attorney is, and ought to be, simply the representative of one of them.

Let us, then, look the system which is thus approaching us gravely in the face; recapitulating to some extent, as we do so, the points which suggested themselves incidentally in the review given by us of the two cases especially selected by us for consideration. And first, with regard to the first practice touched by us, that which authorizes the prosecution to put in issue, as evidence in chief, the defendant's character, by way of showing his liability to commit the particular crime. Notice, first, the debasement which the public mind must suffer from the judicial exhibition of prurient psychological detail. Nothing can be worse in this respect than the displays listened to by greedy audiences in what are considered the more "interesting" cases, and which are subsequently through the press presented to the public at large. We have before us in the third volume of the new series of the Neue Pitaval the report of a homicide case, that of Count Gustavus Chovinzky and of Julie Ebergenyi, in which the general sexual tendencies of the defendants, and their victims, the wife of the first, were made the subjects of the minutest and most discursive exploration; and in which, according to the reporter, who prints these details at large, the court-room was crowded by some of the highest as well as by the most abject of the land. It is before such audiences, and then through the press, that this emptying of the most fetid contents of the human heart is artistically consummated. It is like the baling out the contents of a putrid well, the process is one which cannot but spread contagious disease. For the exploration and exhibition is not, as with us, one of naked, hard fact, but one of prurient motives. The worst, vilest, most morbid of all human desires and impulses, things which we are impelled by every right feeling instinctively to hide even from ourselves, are keenly searched after, and ruthlessly displayed to the public gaze.

Then, second, this process destroys all power of rightful defence. The de

No

fendant, in the old common-law courts, knows what he is to prepare to meet. The issue is a single one; to this he adjusts his plea and calls his witnesses. Whatever his past may have been, he knows that the law, in its humanity, has given him an opportunity for reform; and that now he is to be tried for a single well-defined act, as to which he has full notice, so as wisely to make ready for his defence. But with the civil law, a prosecution is limited by no such restraints. There is no point in the defendant's past history, no matter how distant or how recent, which may not be suddenly sprung on him; and when the judge's knowledge does not enable him to touch such points, the drag-net of a general interrogatory is swept over the offender's memory. No offence has been so atoned for as to protect it from being thus brought up in judgment. oblivion, no death of witnesses, no long passage of time consuming all explanatory or vindicatory circumstances, are allowed to intervene between the judge and the coveted disgraceful fact. The defendant goes to trial prepared to meet a particular issue, and he finds himself confronted with others, any one of which involves disgrace, but to meet which he has had no notice to prepare. And if no other acts or tendencies of guilt are available, then his prevarications on trial, — prevarications often the convulsions of a man in torture, are charged against him, and on these he finds the issue is made to rest. We do not say that under this system there is no security for innocence; for in a general sense, in that sense which involves a free uncovering of the secret frailties and passions of the human heart, no man is innocent. But we do say, that in this view there is no security for any one. No one can in safety walk the streets, for there is no one who, if under trial, cannot be exposed to an investigation more or less destructive. We have no time here to dwell on disarrangement of judicial mechanism, and the consequent frequent escape of the VOL. XXVI. — - NO. 153.

6

real offender, wrought by this clumsy confusing of relevant with irrelevant issues. We have simply to say that by it no protection is left either to liberty or life.

The remaining question before us — that of the judicial examination of the defendant on trial-invites but few remarks in addition to those which have already been incidentally made. No doubt there is a class of temperaments which can escape this ordeal comparatively uninjured. Men of imperturbable temper and of comprehensive intellect and of quick wit may be able, during the trial, as well as during the numerous preliminary hearings, to maintain a calm and consistent theory of defence. But men of this class are rare, and are at least not unknown among those inured to crime. The consummate villain is, in fact, likely to be the most successful in the execution of this most difficult task; while the guiltless, from their very inexperience in crime, and from the peculiar terror which disgrace possesses to them, are as likely to break down in the attempt. Thus in the case last noticed by us, Conte, the real assassin, played his part through a protracted cross-examination with every trait of candid innocence; while Leotade, his victim, was betrayed into the apparent contradiction and confusion of guilt. For it should be remembered, the strain is the severest to which the nervous system can be exposed. pose that the judge is deterred, either by his own humanity or by public opinion, from sustaining such attempts as those of the chief justice at Toulouse, attempts to bully, to terrify, to crush, to annihilate the victim who lies exhausted in his clutch. Let us suppose that he simply permits the method which the German courts have in the main adopted, of taking to the trial a minute brief of all that the witnesses for the prosecution are expected to testify to, and then examining the defendant in advance on each point. Let us remember how protracted, how multifarious, and how exhausting such an

Let us sup

examination must be; and then let us inquire which of us could submit ourselves to such a test, even though the topic might be the most innocent event in our past lives, without being betrayed into embarrassments and inconsistencies which may readily be received as confessions of guilt. And then let us rise from this personal view to the general considerations of public policy to which the issue thus ascends. The civil law and with this recollection let us conclude in this as in all other respects is the product of despotism. Its object is to level the citizen to the grade of the slave. It recognizes in him no sanctity of character, just in the same way that it awards to him no sanctity of home. He is the creature of the government that overshadows him; and at its command he must in public unveil the most secret motives of his heart; and the system is one, therefore, which produces, not freemen, but tools; not high personal enterprise, but apathetic sloth; not political liberty, but political torpor and death.

But

the common law is the system of personal liberty, of manly independence and self-respect. It was produced by these great qualities, and these, in return, it fortifies and protects. If it makes every man's home his castle, and if these castles are sometimes a little too roughly garrisoned, let us remember that they are not merely the shelters which protect the rights of the individual, but the fortresses which assure the grandeur of the state. And if, in declaring that no man shall be forced to degrade himself by his own lips, the same common law may give in isolated cases impunity to crime, let it be also remembered that by this process it not merely implants in the individual breast a consciousness of selfrespect and sanctity which ultimately makes crime less frequent, but it summons for the commonwealth the services of high-toned, strong, and rightfully loyal men. Let us beware lest, in infringing on this principle, we undermine some of the foundations, not merely of personal liberty, but of the public weal. Francis Wharton.

A

COMMITTEE of Congress has been busy at the great seaports of New England and New York in ascertaining the condition of this branch of industry, and has invoked the action of Congress.

When our late war begun, the South made many predictions, few of which have been fulfilled. Among other things they predicted that grass would grow in our ship-yards. Is this prediction to be verified? Are we to withdraw from the ocean, so long the field of our enterprise and renown? When the war commenced, our tonnage, then 5,539,813 tons, exceeded that of the British Empire. In 1868 it had declined to 4,318,309 tons, while the

British tonnage had risen to 7,000,000, nearly a sixth of which was propelled by steam. Our ship-building, which in 1855 gave us 583,450 tons, of which more than half a million tons were built on the Atlantic coast, in 1868 had declined one half. In the last year but 173,000 tons were built on the coasts for both coastwise and foreign commerce. In 1855 we built 373 ships, and in 1868 but 69.

Before the war, the carrying trade between nation and nation employed 8,000,000 tons of shipping. Of these, the British Empire furnished three eighths, the United States a third, while other nations supplied the residue. But in 1866 our proportion had fallen to a

sixth, the British risen to a half, while the deficit was filled by the Continent of Europe.

Before the war, two thirds of the arrivals from foreign ports bore the stars and stripes; but now two thirds of the vessels which reach our ports from abroad bear a foreign flag; and although the war has ended, our vessels in the foreign trade still diminish. In the first nine months of the past fiscal year our tonnage in the foreign trade declined fourteen per cent, while the foreign tonnage gained twenty-eight per cent. At this rate, it will require but seven years to triple the arrivals of foreign ships, and to banish us from the carrying trade of the world. Unless something is done, we, with our primeval forests, virgin ore-beds, and enterprising youth, shall no more unfurl our flag in foreign ports, but must be confined to our lakes, rivers, and coastwise trade, in which all foreign competition is precluded. It is painful to contemplate such a result. Our marine has been one of the great elements of our strength. Without it, how could we have blockaded a coast of three thousand miles? How opened the Mississippi? How recovered our Southern seaports and fortresses. Again, what an income would we have realized by the 7,000,000 tons of shipping, to which we might have risen! At thirty dollars only per ton, it would have exceeded two hundred millions. Its management, its repairs, and dependent trades would have sustained nearly a million of families and furnished a market for the surplus of as many engaged in agriculture, who must suffer from competition if consumers are converted into producers.

We cannot afford to part with our marine. We must devise a remedy for its decline. Let us trace its growth and consider what gave it vitality, what policy ministered to its growth, what measures have checked its progress and produced a premature decay, while other interests prosper.

Before the Revolution, Great Britain confined us as much as she could to

the fisheries and coastwise commerce and to a few ships in the trade with England and her colonies. A few daring spirits sometimes ventured to join the fleet from Jamaica to England, or to trade with the Spanish Isles, but seizures and confiscations checked this spirit of adventure.

The Revolution swept away our ships, but put us on our mettle; the Colonies had no navy; their great seaports were occupied or ruined by the foe; but our county of Essex constituted itself our Navy Department, discarded the puppet sterns and full bows, and built ships that made the run in eleven days from Salem to Ireland; and in the last year of the war, Salem and Beverly, with twenty gun-ships that outsailed and often outfought the best ships of England, held the control of the British Channel and raised the rate of insurance to ten per cent. Their success contributed materially to the termination of the conflict.

At the close of the war our cruisers were converted into merchantmen, and soon took an active part in commerce, outsailing the ships of all other nations, and opening the Baltic, the Mediterranean, India, Africa, China, Brazil, Chili, Peru, and our Northwest Coast to the trade of the Union.

When our new Constitution took effect, the first register of our shipping showed but 201,000 tons, or less than the tonnage on Lake Erie in 1860.

Under duties averaging but eleven per cent for the first epoch of twentyone years, our tonnage rose from 201,000 tons in 1789 to 1,424,748 tons in 1810, and then the effect of the embargo of 1808 checked its progress. Its increase was 700 per cent. During this period, although the country was weak, Adams founded the navy, laid the keels of four ships of the line, and Suffolk and Essex counties raised funds and built frigates for the nation.

But there was soon a change of dynasty. The Democracy came into power, abandoned the large ships, built a few gunboats, adopted the Chinese

policy, and embargoes, culminating in war, succeeded.

Adams

"Had bid upon the Atlantic shore

New navies ride, new thunders roar "; and if he could have put ten millions into ships of the line, or frigates, would have saved a third of the active capital of the country, sacrificed by embargoes, war, and duties; but Jefferson and Madison succeeded. Quincy, Lloyd, and Webster struggled in vain, and commerce was prostrated.

During the second epoch of twentyone years, from 1810 to 1831, under duties averaging thirty per cent, tonnage, instead of gaining seven hundred per cent, actually fell twelve per cent, or from 1,424,748 tons in 1810 to 1,267,847 tons in 1831.

But in 1831 our debt had diminished; the country would no longer see its commerce crushed; there was "an uprising of the people," and under the auspices of Henry Clay a compromise was made, under which our duties fell, with a slight reaction in 1842, to an average of 16 per cent, which lasted thirty years, from 1831 to 1861. Our navigation at once revived, and exceeded the tonnage of England, gaining 420 per cent, from 1,267,847 tons in 1831 to 5,539,813 tons in 1861. The following table illustrates the progress and decline of our shipping:

Tons.

a

We come now to the present epoch, commencing in 1861, and with a tariff carried up from 15 per cent in 1860 to an average of 42 per cent in 1869, we find again the decline we might well expect from the history of the past, loss of 22 per cent in place of a gain of 430 per cent, -a fall from 5,539,813 tons in 1861 to 4.318,309 tons in 1869. And of this residue more than three millions of tons are on our lakes and rivers, or in coastwise trade, where we have a monopoly; while in July last twenty-seven millions of our imports were brought in foreign vessels, and but ten millions in American.

It may be urged by some who have not studied this question, that the decline in our shipping is due to the war, yet neither Secession nor English cruisers deprived us of one eighth of our tonnage. It was not destroyed by the foe. Some may think the loss due to a change of measurement, but this was immaterial, as the loss in one class is compensated by a gain in others. Nor is it due to the fact that trade is unprofitable, for we have merchants whose ships, built before the war, have made fair returns for the past eight years.

Did we not know that many of our laws were made in the hurry of the war, when Congress had put out its arms to grasp every source of revenue, we might conceive that our legislators had been guided by a spirit hostile to navigation, for as the law stands to-day it provides:

First. That we shall not build any ships for foreign trade.

Second. That we shall buy none.