Testators should not, from the snug security of the grave, be
permitted to utter a perpetual threat of disinheritance, or any other
uncomfortable fate, to deter a living citizen, even one of their own
legatees, from applying to the courts of his country for redress of
any wrong from which he may consider himself as suffering. The courts
of law ought to be open to any one conceiving himself a victim of
injustice, and it should be unlawful to abridge the right of complaint
by making its exercise more hazardous than it naturally is. Doubtless
the contesting of wills is a nuisance, generally speaking, the
contestant devoid of moral worth and the verdict unrighteous; but as
long as some testators really _are_ daft, or subject to interested
suasion, or wantonly sinful, all should be denied the power to stifle
dissent by fining the luckless dissenter. The dead have too much to say
in this world, at the best, and it is tyranny for them to stand at the
door of the temple of justice to drive away the suitors that themselves
have made.
Obedience to the commands of the dead should be conditional upon their
good behavior, and it is not good behavior to set up a censure of
action at law among the living. If our courts are not competent to
say what actions are proper to be brought and what are unfit to be
entertained let us improve them until they are competent, or abolish
them altogether and resort to the mild and humane arbitrament of the
dice; but while courts have the civility to exist they should refuse
to surrender any part of their duties and responsibilities to such
exceedingly private persons as those under six feet of earth, or
sealed up in habitations of hewn stone. Persons no longer affectable
by human events should be denied a voice in determining the character
and trend of them. Respect for the wishes of the dead is a tender
and beautiful sentiment, certainly. Unfortunately, it can not be
ascertained that they have any wishes. What commonly go by that name
are wishes once entertained by living persons who are now dead, and
who in dying renounced them, along with everything else. Like those
who entertained them, the wishes are no longer in existence. “The
wishes of the dead” are not wishes, and are not of the dead. Why they
should have anything more than a sentimental influence upon those still
in the flesh, and be a factor to be reckoned with in the practical
affairs of the supergraminous world, is a question to which the merely
human understanding can find no answer, and it must be referred to the
lawyers. When “from the tombs a doleful sound” is vented, and “thine
ear” is invited to “attend the cry,” an intelligent forethought will
suggest that you inquire if it is anything about property. If so pass
on—that is no sacred spot.
X
Much of the testimony in French courts, civil and martial, appears to
consist of personal impressions and opinions of the witnesses. All
very improper and mischievous, no doubt, if—if what? Why, obviously,
if the judges and jurors are unfit to sit in judgment. By designating
them to sit, the designating power assumes their fitness—assumes that
they know enough to take such things for what they are worth, to make
the necessary allowances; if needful, to disregard a witness’s opinion
altogether. I do not know that they are fit. I do not know that they
do make the needful allowances. It is by no means clear to me that
any judge or juror, French, American or Patagonian, is competent to
ascertain the truth when lying witnesses are trying to conceal it under
the direction of skilled and conscienceless attorneys licensed to
deceive. But his competence is a basic assumption of the law vesting
him with the duty of deciding. Having chosen him for that duty, the
French law very logically lets him alone to decide for himself what
is evidence and what is not. It does not trust him a little, but
altogether. It puts him under conditions familiar to him—makes him
accessible to just such influences as he is accustomed to when making
conscious and unconscious decisions in his personal affairs.
There may be a distinct gain to justice in permitting a witness to
say whatever he wants to say. If he is telling the truth he will not
contradict himself; if he is lying, the more rope he is given the more
surely he will entangle himself.
In giving hearsay evidence, for example, he may suggest a new and
important witness of whom the counsel for the other side would not
otherwise have heard, and who can then be brought into court. By some
unguarded and apparently irrelevant statement he may open an entirely
new line of inquiry, or throw upon the case a flood of light. Everyone
knows what revelations are sometimes evoked by apparently the most
insignificant remarks. Why should justice be denied a chance to profit
that way?
There is a still greater advantage in “the French method.” By giving a
witness free rein in expression of his personal opinions and feelings
we should be able to calculate his frame of mind, his good or ill will
to the prosecution or defense and, therefore, to a certain extent his
credibility. In our courts he is able by a little solemn perjury to
conceal all this, even from himself, and pose as an impartial witness,
when in truth, with regard to the accused he is full of rancor or
reeking with compassion.
In theory our system is perfect. The accused is prosecuted by a public
officer, who having no interest in his conviction, will serve the
state without mischievous zeal and perform his disagreeable task with
fairness and consideration. He is permitted to entrust his defense
to another officer, whose duty it is to make a rigidly truthful and
candid presentment of his case in order to assist the court to a just
decision. The jurors, if there are jurors, are neither friendly nor
hostile, are open-minded, intelligent and conscientious. As to the
witnesses, are they not sworn to tell the truth, the whole truth (in
so far as they are permitted) and nothing but the truth? What could
be finer and better than all this?—what could more certainly assure
justice?
How close the resemblance is between this ideal picture and what
actually occurs all know, or should know. The judge is frequently
an ignoramus incapable of logical thought and with little sense of
the dread and awful nature of his responsibility. The prosecuting
attorney thinks it due to his reputation to “make a record” and tries
to convict by hook or crook, even when he is himself persuaded of the
defendant’s innocence. Counsel for the defense is equally unscrupulous
for acquittal, and, both having industriously coached their witnesses,
they contend against each other in deceiving the court by every art
of which they are masters. Witnesses on both sides perjure themselves
freely and with almost perfect impunity if detected. At the close
of it all the poor weary jurors, hopelessly bewildered and dumbly
resentful of their duping, render a random or compromise verdict, or
one which best expresses their secret animosity to the lawyer they like
least, or their faith in the newspapers which they have diligently and
disobediently read every night. Commenting upon Rabelais’ old judge
who, when impeached for an outrageous decision, pleaded his defective
eyesight which made him miscount the spots on the dice, the most
distinguished lawyer of my acquaintance seriously assured me that if
all the cases with which he had been connected had been decided with
the dice substantial justice would have been done more frequently than
it was done. If that is true, or nearly true, and I believe it, the
American’s right to sneer at the Frenchman’s “judicial methods” is an
open question.