Mr. Yeaman to Mr. Seward.
Sir: I pursue in this dispatch a subject kindred to the one treated in my last. Since 1795 there has been in operation in Denmark a judicial institution of a peculiar and important character, some account of which must have an interest for those accustomed to study the administration of justice.
The bench and the bar of England and the United States have long ceased to accept our fabric of common law and equity as a perfect system of reason, or of justice based on reason, and have sought to enrich it, supply its defects, and mould it into a system at once symmetrical and plastic, by bringing to its aid the reasoning and the rules of other systems and codes, especially of the Soman civil law. While attention is now perhaps sufficiently awake to the importance of this, it is possible we have not derived that benefit which we might have obtained by studying more closely the judicial machinery also of other enlightened states.
The Danish, institution to which I refer has given such entire satisfaction, has so thoroughly proved its value by its working and its results, that neither the government nor the people could now be persuaded to renounce it. Its name may best be translated, and its functions best described, in the English language by calling it the court of reconciliation. It is not arbitration and award, it is not simple accord, and it is not purely a judicial court, because the judgment rendered is always based on consent.
In Copenhagen, it is composed of one judge, who is a member or justice of the regular court of superior and appellate jurisdiction, and two assistants, generally members of the city government or administration. In the provinces or country districts, it is composed of the judge of the regular court of superior jurisdiction, and two assistants who are nonprofessional citizens. Before this tribunal, thus composed, every cause, great or small, every complaint upon which a civil action may be based, is required to be brought and heard before any litigation, properly so called, can be had upon it in the regular courts of justice of compulsory jurisdiction. Those courts have no power to hear and determine, and, the objection being made, will dismiss any action, unless it appears that the cause has been heard in the court of reconciliation, and that the advice there given has not resulted in an understanding or a judgment by consent.
The substance of the proceeding is that the complaining party lodges a plain, untechnical statement of his complaint in the court of reconciliation, where both parties are then required to appear at an early day, in person and without counsel, and generally without witnesses, though when deemed necessary witnesses are heard. I am not familiar with the process of procuring the attendance of the defendant or party complained of, nor if his attendance is discretionary, with the full effect of his willful absence after notice or citation. But the disadvantage of having the cause heard in his absence and stated by the adverse party only, and the certainty that the complainant would at least be allowed to litigate the case in the courts of compulsory jurisdiction, seem amply sufficient to secure attendance.
In court, face to face, the parties state their own cause, and are also questioned by the judge so far as he thinks necessary. This generally [Page 85] closes the examination of the case, but the court can allow or require witnesses to be called. The court having thus acquired the facts as far as agreed upon, and the statement of each party upon disputed matters, as well as other evidence when it is deemed requisite, the judge carefully explains to the parties the law which he thinks applicable to the case, and explains what he deems the strict legal right; and then the whole court, upon the whole case, legal and moral, make such suggestions, and give to the parties such advice, as is deemed appropriate in the premises. Having heard this advice, it is entirely optional with the parties to adopt it or not. They may adopt it exactly as given, or they may reject it entirely and come to no agreement; or they may come to an agreement entirely of their own making, or to one based in part on the views of the court and in part upon their own conclusions. If no agreement or reconciliation is reached, that fact is announced and noted of record, and the parties go their way, with perfect liberty to abandon the matter or to put it in course of regular litigation. But if an agreement is had, that agreement, whether it be that the matter is reconciled and abandoned, or that one party recovers of the other, is entered as the judgment of the court, is final, and is in all respects as binding and efficient as the judgment of any other court. Execution may go upon it, and it may be pleaded in complete bar of any other or further proceedings for the same complaint or cause of action.
The theoretical criticisms which can be made, from the common law point of view, upon a tribunal thus organized, are sufficiently apparent. Besides these there is another objection which, relating only to the organization of the court, would be easily remedied; that is, that the judge who presides over the court of reconciliation ought not to be the judge or a member of the court of coercive justice, before which the matter may be afterwards litigated, as he might carry into the hearing there some feeling of stringency, if not of harshness, against a party who, in the judge’s opinion, may have perversely or in bad temper resisted all efforts to adjust the matter in dispute in accordance with the advice of the court of reconciliation. But all theoretical criticism seems unavailing in the presence of the facts, in view of the practical operation of the court and of the universal satisfaction which it has given. It has in a wonderful degree simplified the adjustment of disputes, lessened litigation and lessened the cost, both in time and money, of the administration of justice, while its judgments are felt to be as satisfactory in the main as those reached after the most tedious and costly litigation. The most astonishing feature of its operation is the number of judgments, in proportion to the whole number of cases heard, which the court renders.
The Foreign Office has furnished me with a tabular statement, herewith inclosed, of the statistics of this court from the year 1860 to 1864, inclusive. By reference to section No 1 of this statement, it will be seen that the total number of appearances or causes presented to the court throughout Denmark for the five years named was 183,628: of which were reconciled and adjudged 123,897; postponed, or continued for further hearing, 2,544; permission given for further and formal litigation in other courts, 57,187; actually litigated, 25,967. Thus only about one-seventh of the disputes arising in the kingdom being finally and formally litigated, in the courts of law. These statistics, when compared with our own mode of litigation, may be in some degree misleading. It is quite possible that parties may often take before this friendly, expeditious, and inexpensive tribunal disputes which in its absence they would not venture or would not care to litigate, just as good legal advice and friendly offices sometimes prevent litigation in other countries. Yet there is [Page 86] enough in these figures to excite the curiosity and even the admiration of jurists and statesmen. By examining the numbers, which are given separately for each of the five years named, it will be found that while the whole number of cases brought to the courts of reconciliation is decreasing, the proportion determined there is increasing; this proportion is always considerably over half of the whole number heard, while of the number which, by the result in this court, may be further and regularly litigated, considerably less than half are actually so litigated. These results are more than satisfactory. They are a serious and important lesson to other peoples.
Section 6 of the same table gives the statistics of this court for the Danish West Indies for the same years, from which it will be seen that the number of cases in those dependencies was 2,408: reconciled and adjudged, 1,700; permitted to go to further suit, 708; of these last were actually litigated, 281.
These figures, showing the operation of the institution in a remote and isolated part of the kingdom, with a population almost entirely different, while giving results slightly more favorable even than in Denmark proper, give the same general showing, and very nearly in the same proportions, which would seem to indicate that there is something in the working of the system which would everywhere tend to produce the same general results.
I am, sir, very respectfully, your obedient servant,
Hon. William H. Seward, Secretary of State, Washington, D. C.