Scrutiny

“ Let us first consider the nature of the tribunal.
The supreme constituted authority—not only of affairs in this life but in the ordering of all the future existences that man has conceived—is Public Opinion. Public opinion is the decree of human nature determined in impenetrable secrecy, enforced with ceremonious and bewildering circumlocution. It is thus double-natured. The organized public opinion that we see, hear, feel and obey is the costumed officialism of human nature, through ages of custom charged with enforcing upon individuals the demands of the many. ”

“ In Parliament, how is a question of science treated? In our courts of law, and criminal investigation, it is lamentable to observe the frequent defeat of justice, arising from erroneous conception, or from the utter absence of the requisite knowledge. In the ordinary affairs of life, we see conspicuous, amongst the dupes of quackery and imposture, those whose stations should imply the best instruction, and whose conduct, unfortunately, has the effect of example. ”

“ It is therefore necessary, before we engage in the consideration of foreign affairs, to prosecute the inquiry which was begun in the last session, to trace wickedness to its source, and drag the authors of our miseries into the light.
These, my lords, are the inquiries which the general voice of the people importunately demands; these are the petitions which ought never to be rejected; all parties are now united, and all animosities extinguished; nor is there any other clamour than for inquiries and punishment. ”

“ And though this is the case, still as some things can be laid down in a general way respecting everything, there are also other rules and different methods separately laid down for each particular kind of discussion. For praise, or blame, or the statement of an opinion, or accusation, or denial, ought all to effect different ends. In judicial investigations the object of inquiry is, what is just, in demonstrative discussion the question is what is honourable, in deliberations, in our opinion, what we inquire is, what is honourable and at the same time expedient. ”

“ Allow facts, injurious to the judge, to be published, even when true; allow comments, unfavourable to the judge, to be made upon his actions, you discredit the administration of justice. Discredit the administration of justice, to which the people are resorting every day for the greatest of all possible benefits, protection from injury! ”

“ But what are we to think of a procedure under which an official is to be tried, not in a court by a jury of his peers and upon the testimony of witnesses sworn to tell the truth, but in the newspapers, on the street corners, and at political meetings? ”

“ XL. Let us now consider, that the falsehoods and deceits, with which tribunals are environed, make the investigation of truth so difficult, that in some causes it is come at late, and in others never. This is a most pernicious injury to the public, for the tediousness and difficulty of the verification, gives breathing-time for the ill intentioned, to devise and concert all sorts of wickedness. What remedy then can you apply to this evil, but that of punishing rigorously every kind of judicial deceit? ”

“ An inquiry is wished, as the most effectual way of putting an end to the clamors and libels which are the disorder and disgrace of the times. For people remain quiet, they sleep secure, when they imagine that the vigilant eye of a censorial magistrate watches over all the proceedings of judicature, and that the sacred fire of an eternal constitutional jealousy, which, is the guardian of liberty, law, and justice, is alive night and day, and burning in this House. ”

“ Thirdly, a sound and calm judgment, which will subject all inferences and generalisations, both one’s own and other people’s, to a searching review, and weigh in delicate scales their validity. These two last-mentioned qualifications taken together make up what we call the critical faculty, i.e. the power of dealing with evidence as tending to establish or discredit statements of fact, and those general conclusions which are built on the grouping of facts. Neither acuteness alone nor the judicial balance alone is enough to make the critic. ”

“ But that iniquity, which, if it should be committed, I promise to prosecute severely, with however much trouble and danger to myself, and whatever enmities I may bring on myself by so doing, you, O Marcus Glabrio, can guard against ever taking place by your wisdom, and authority, and diligence. Do you undertake the cause of the tribunals. Do you undertake the cause of impartiality, of integrity, of good faith and religion. ”

“ The whole which we gain therefore from the Board of Inquiry is—that what we barely suspected is ripened into certainty—and that on all, which we assuredly knew and declared without needing that any tribunal should lend us its sanction, no effort has been made at denial, or disguise, or palliation. ”

“ In saying that from hour to hour proofs occur that the force possessed by a political agency is derived from aggregate feeling, partly embodied in the consolidated system which has come down from the past, and partly excited by immediate circumstances, I do not refer only to the proofs that among ourselves governmental actions are habitually thus determined, and that the actions of all minor bodies, temporarily or permanently incorporated, are thus determined. I refer, rather, to the illustrations of the irresistible control exercised by average sentiment and opinion over conduct at large. ”

“ The consultor of a work, embracing within its pages such distracting judgments, unexplained by commentary, would be in doubt as to which decision he should adopt, so that coming to the inspection with the desire of solving a legal question, he would be constrained to close the volume, in utter despair of extracting truth or information from so confused a mass of contradictions. ”

“ That tremendous tribunal which we call public opinion can be exercised only by an enlightened and judicious people. It requires a free and rapid circulation of thoughts and opinions, a high degree not only of political information, but of political discernment and skill. ”

“ If there be, as the Westminster Reviewer acknowledges, certain checks which, under political institutions the most arbitrary in seeming, sometimes produce good government, and almost always place some restraint on the rapacity and cruelty of the powerful, surely the knowledge of those checks, of their nature, and of their effect, must be a most important part of the science of government. ”

“ It is enough if these may tend, even in a slight degree, to elucidate the inquiry, or to assist, though remotely, to a determination probably founded in truth.' . . .
'The modern tendency, both of legislation and of the decision of courts, is to give as wide a scope as possible to the investigation of facts. ”

“ The judge sums up, carefully describing the conditions of valid inference on questions of disputed fact, and warning the jury against those forms of irrational and unconscious inference to which experience has shown them to be most liable. They then retire, all carrying in their minds the same body of simplified and dissected evidence, and all having been urged with every circumstance of solemnity to form their conclusions by the same mental process. ”

“ Even where deliberate measures are taken to obtain valid evidence on any political or social question raised, by summoning witnesses of all classes and interests, there is difficulty in getting at the truth; because the circumstances of the inquiry tend of themselves to bring into sight some kinds of evidence, and to keep out of sight other kinds. ”

“ We are obliged, therefore, to resort to historical evidence, and to seek the meaning of the words in the use and in the opinion of those whose relations to the government, and means of knowledge, warranted them in speaking with authority. ”

“ The intercourse of society, its trade, its religion, its friendships, its quarrels, is one wide, judicial investigation of character. In full court, or in small committee, or confronted face to face, accuser and accused, men offer themselves to be judged. ”

“ By authority I do not mean the delivery of dogmatic decisions, analogous to those issued by a legal tribunal from which there is no appeal, that have to be accepted and obeyed, but the existence of a body of opinion of long standing, arrived at after due investigation and experience during many generations, and reposing on fixed principles or fundamentals of thought. ”

“ Counter-petitions, attorneys, counsel, and a trial, a standing and a day in court to all parties in interest before the bill can become a law, prevent wrong to individuals; counsel for the ministry for the public bills, and special counsel for the private bills, committees to aid them in the intelligent discharge of their work, prevent the possibility of working, by collusion, a public wrong. ”

“ And I only express a general desire that the investigation you recommend shall be conducted at once by a committee of intelligent and honest men; that this investigation may lead to the truth is the fervent desire of all good citizens. ”

“ The business of the magistrate, of the military commander, of the navigator, of the physician, of the agriculturist, is merely to judge of evidence, and to act accordingly. They all have to ascertain certain facts, in order that they may afterward apply certain rules, either devised by themselves or prescribed for their guidance by others ”

“ On this occasion they are to judge of fact as well as law. He must bring his witnesses where he is not known, where a new evidence may be brought against him, of which he never heard before, and which he cannot contradict. ”

“ We are told that 'Congress has specified the basic conclusions of fact upon the ascertainment of which by the Administrator its statutory command is to become effective.' This means, I take it, that the Administrator need find no facts, in the accepted sense of the expression. He need only form an opinion,-for every opinion is a conclusion of fact. ”

“ To this exalted tribunal I look with confidence for a display of that dignified impartiality, which will do credit to their elevated situation, and reflect honor on their country. You will raise yourselves, I am convinced, above the common level of human prejudices, personal or political, and will suffer no considerations but those which are perfectly correct to be blended with your inquiries or mingled with your decisions. ”

“ This method, which was extended to criminal as well as civil cases, of ascertaining the truth and deciding disputes by means of juratores, men sworn to tell the truth impartially, involved a vast educational process. Hitherto men had regarded the ascertainment of truth as a supernatural task, and they had abandoned it to Providence or the priests. Each party to a dispute had been required to produce oath- helpers or compurgators and each compurgator's oath was valued according to his property, just as the number of a man's votes is still proportioned to some extent to his possessions. ”

“ Hence, with us, the people (by which is meant the mass of individuals composing [590] the society) being competent to judge of the facts occurring in ordinary life, they have retained the functions of judges of facts, under the name of jurors; but being unqualified for the management of affairs requiring intelligence above the common level, yet competent judges of human character, they chose, for their management, representatives, some by themselves immediately, others by electors chosen by themselves. ”

“ The strict rules of evidence need not be observed in the inquiry, the magistrate being empowered to investigate and determine the matter by such means and in such manner as in equity and good conscience he thinks fit. ”

“ We, in short, pursue the same course in investigating facts in court that we pursue out of it, when no one forms a judgment until he has first heard what the parties and their friends say on the subject. ”

“ Arraign those absurdities before the tribunal of examination; people may be convinced of their impropriety; they may even be convinced that better schemes may be projected; and yet it might be impossible to unite their opinions so as to establish different maxims. On the other hand, there are many good institutions, in which, however, there may be theoretical faults, which, if called into public view, and artfully represented, might shake the best government on earth. ”

“ They are bound, it is true, to learn from the assessment what the limit upon their authority is, as a necessary preliminary in the exercise of their functions and the performance of their duty; but the information is for themselves alone. All the world besides must have it from the same source, and for themselves. ”

“ In all civilized nations, at all times, up to the present period, we have testimony of unequivocal authority, giving minute details of extraordinary facts, on the evidence of individuals of unimpeachable integrity, which confound experience, elude investigation, and baffle research. ”

“ In each case 'due process of law' requires an evaluation based on a disinterested inquiry pursued in the spirit of science, on a balanced order of facts exactly and fairly stated, on the detached consideration of conflicting claims, see Hudson County Water Co. ”

“ Under whatever color the acts may have been committed, the truth, good faith, and sufficiency of the cause alleged are the subjects of investigation as questions of fact without regard to the official station. ”

“ The Commission of Ethical Inquiry has directed all its powerful machinery to detect the authors of this outrage. Let every coöperator appoint himself a detective to help. Search every house in your neighborhood! Trust nobody! Every person found in possession of a copy of this pamphlet will be summarily removed from the Commonwealth. ”

“ But, from the political point of view, it is certain that the jury may awaken, with a knowledge of the law, a consciousness of civic duties, which are too frequently undertaken as a forced and troublesome burden. ”

“ Representative government, trial by jury, and all the discoveries in political science upon which we pride ourselves most, are the necessary development of their simple institutions, to which, indeed, they can be distinctly traced. ”