Page:Harvard Law Review Volume 5.djvu/102

86 86 HARVARD LAW RE VIE W. the seventeenth century, it is but a relic of controversies and dangers which have disappeared. As a rule of canon law, it never was accepted as we accept it; the experience of the civil- ians led them in reality to quite opposite conclusions. We may, therefore, disregard sentiment and the supposed weight of experi- ence, for there is no place for them. As to its intrinsic merits, then, may we not express the general opinion in this way, that the privilege is not needed by the inno- cent, and that the only question can be how far the guilty are entitled to it? This fact, that no innocent man needs to claim this privilege, has always been the strong argument with those who attack it. The weakness of its defenders has lain in their habit of insisting that it has indispensable advantages for those who are groundlessly accused, and in their failure to face directly the question of real difficulty and doubt, whether or not some concession should not be made for the benefit of the guilty. I imagine that to-day the average lawyer, as well as the average layman, if asked for his candid opinion, would admit that in the nature of things there is no reason why, if an accused person is innocent, he should be unwilling to say so, and to explain the facts of his conduct and vindicate himself, — always assuming, of course, that a charge has been made with proper solemnities, and that he is not called upon, in inquisitorial style, to answer hasty accusations without weight. The same lawyer (for I cannot imagine a layman adding a "but" to this view) would add, how- ever, that his fear was that even the innocent man might be trapped and entangled into damaging statements by the wiles of the cross-examiner. If this be so, then surely the evil lies in an abuse of that potent force, cross-examination, and a remedy can be applied where it is needed. Cross-examination, and not trial by jury, as an able Japanese lawyer once said to me, is the real glory of Anglo-American procedure ; but there can be no doubt that cross-examination, in its native regions, has been allowed to run wild, and justice has suffered in consequence. If cross- examination endangers an innocent man, it is the abuse, not the proper use of it, which is to blame. When we come to consider what allowance should be made for the guilty, we perceive immediately that there is ample ground for restricting and defining the liability to be brought to book for one's misdoings. We acknowledge, by our statutes of