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IV.

Testators should not, from the snug security of the grave, utter a perpetual threat of disinheritance or any other uncomfortable fate to deter an American citizen, even one of his own legatees, from applying to the courts of his country for redress of any wrong from which he might 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 conspicuously devoid of moral worth and the verdict singularly unrighteous; but as long as some testators really are daft, or subject to interested suasion, or wantonly sinful, they 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 monstrous and intolerable 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 actions 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 affectible 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,” therefore, 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 super-graminous 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.

V.

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 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 if 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 conscientiousless 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 and suasions as he is accustomed to when making conscious and unconscious decisions in his personal affairs.