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The Courts of Conciliation can punish by imprisonment any violence or disorder committed in their presence; all other contempts they report to the royal chancery.
In Copenhagen, there are no costs of court except fees to the officers who serve the summons; the members of the court and its attendants have salaries from government, and all contingent expenses are also paid from the public purse. In the towns and in the country districts a small fee, one third of which goes to the clerk, is paid to the court for each case settled by award. The plaintiff pays all costs, and the award determines whether the defendant shall reimburse him; and if so, whether in whole or in part. When a case is transferred to the law courts, no fee is paid to the Court of Conciliation, and no other fees are ever allowed than those just specified.
From this brief account the theory which underlies the Danish Courts of Conciliation becomes evident. It is this. Much needless litigation will be prevented, if disputants can be brought together to tell their stories to disinterested persons, in whose character and judgment they have confidence, and before whom they must govern their tongues and tempers, especially if influences adverse to conciliation are absent, if freedom and openness of speech can be secured, and if the delay interposed by the hearing be short. The Danish legislators have striven fully to carry out this theory; they bring the disputants together by forbidding litigation except under heavy penalties to any party who does not consent to meet the other in person. They have attempted to secure the disinterestedness of the arbiter, and the confidence of the suitors in him, by the rules of his nomination and appointment. They have enforced the government of tongue and temper by investing the arbiter with the authority of a judge. They have aimed to banish influences adverse to conciliation by forbidding the disputants to be represented or assisted by lawyers. They have provided for freedom and openness of speech by the secrecy of the hearing; and they have prevented delay by the summary process of the courts and by a decision upon ex parte evidence.
In France this theory has been carried out only under such modifications as materially change its character. Courts of Conciliation were established in France in 1790, and were recognized and have been perpetuated by the Code. They are not held by a distinct class of magistrates, as in Denmark, but by the ordinary “Juges de Paix.” Their jurisdiction is much more limited than that of the Danish courts. Among the numerous classes of questions which may be brought directly before the law courts without a previous attempt at conciliation are all those to which the government or any public institution is a party, all to which a minor is party, all calling for despatch, or relating to commerce, (a most extensive exception,) all disputes about the payment of rents or annuities, all claims in the nature of set-off, all matrimonial suits, and all causes to which more than two persons are parties.
A party who fails to appear is fined ten francs, which he must pay before he is allowed to appear in the law courts; but this small fine seems to be the only penalty upon a defendant for not obeying a summons before the Court of Conciliation. Either party may appear by proxy, and the proxy may be a barrister or attorney, - a very important difference between the French and Danish practice. Another marked distinction is, that in France the judge may sit with closed or with open doors, at his discretion; nor does it seem to be settled how far the judge can interrogate the parties, and place their answers and statements on the public record.
Looking now at the results of these Courts of Conciliation in Denmark and France, we find the Danish writers speaking with great pride and satisfaction of their success. In the halfdozen years after their establishment, the average annual number of awards made by them and accepted by the parties was between 30,000 and 35,000. The number of civil cases tried before the law courts during the three years preceding the organization of these Courts of Conciliation was 25,521 ; during the three years immediately succeeding, the number was 9,653; showing a decrease of 15,868.
From an official report for 1823, it appears that in that year 31,000 cases were brought before the Danish Courts of Conciliation ; 21,000 were there concluded; about 600 of the remaining 10,000 were abandoned ; and of the rest, 9,426 in number, only 2,355 were decided by the law courts, the others remaining undetermined.
In France the system seems to have been much less successful. M. J. A. Rogron, in his Codes Français Expliqués, says that “the attempt at conciliation before justices of the peace does much good in the country, but is of almost no value in the large towns, especially in Paris, where the justices, having in general only a slight acquaintance with the persons appearing before them, can exercise but little influence.” Lord Brougham, though an earnest advocate for the introduction of a similar system into England, is still more general and emphatic in his language. “In France," he says, “the experiment has signally failed "; -- and he quotes M. Levasseur to the effect that instances in which parties settle their disputes before the Court of Conciliation are exceedingly rare.
The success of these courts in France has been at least equivocal. On the other hand, they certainly seem in Denmark to have achieved valuable results. The reason, we think, is not far to seek.
Denmark is one of the smallest and most sparsely populated of the kingdoms of Europe; it is also one of the poorest. The great majority of the people live on farms or in small villages, and are engaged in agriculture. Except Copenhagen, no town has over twelve thousand inhabitants, and only two have over eight thousand. It was only in the beginning of the present century that the peasantry were freed from slavery. They still labor under many of the restrictions of feudal times; and though a brave, thrifty, industrious people, they are, except in the capital, decidedly less affected than any other nation of Western Europe by the improvements of modern civilization. The foreign commerce is not extensive, and interior communication is hampered by inland dues and execrable roads.
From the character and occupation of the people, and from the difficulty of intercourse between the different parts of the country, it naturally follows that such quarrels as spring up are generally among neighbors, and that the parties to a dispute reside near each other, and not far from the Court of Conciliation, whose jurisdiction, as we have seen, cannot extend over twelve miles in each direction. Indeed, the great probability that the litigants will be such near neighbors as to come within the same jurisdiction, is shown by the fact that the elementary treatises on the organization of these Danish courts make no mention of the course to be pursued when the plaintiff and defendant reside in different districts; and this omission can hardly be explained except on the supposition that such cases occur but rarely in practice.
Such near neighborhood renders possible the appearance in person of the litigants, and this is in our view the most important feature in the system of these Courts of Conciliation ; for when once the parties can send a proxy, the whole proceeding is sure to degenerate into an idle form. By compelling the plaintiff and defendant to meet face to face and talk over their grievances, great good may often be accomplished. Now in our country, with its far-reaching traffic, litigation ceases to be confined to narrow bounds; the plaintiff and defendant often live hundreds of miles apart; to bring them together for a proceeding which, at the option of either, might be treated as an entire pullity, would be attended with great inconvenience and hardship; and yet to allow them to appear by proxy would destroy, as we have said, one of the main features, if not the most important one, of the whole system.
Again, from the character and occupations of the Danish people, together with their primitive mode of life, it must result that their disputes are of very simple nature, readily to be explained by the parties, and readily to be understood by the court. Disputes arising among such a rude peasantry cannot often be of much detail or complication. They must be as easy of settlement as the quarrels of servants or children. How different are the questions which come before the courts in this country! Springing as they often do out of the most involved transactions in a highly civilized state of society, they present a variety of incident and a multiplicity of detail, to unravel which demands patient and skilful examination.
A great part, indeed, of the duties of a lawyer, and a task often requiring of bim both toil and ability, is to extract the facts from the confused stories of his clients, to ascertain the true relations of these facts, and to state them clearly. For a judge to determine the rights of contending parties who should rush before him in the first heat and blindness of a quarrel, without having their ideas shaped and arranged by a legal adviser, would, in any complicated case, be either entirely impossible, or possible only after long delay and tedious sifting of evidence and statement.
Another reason why these courts have met with success in Denmark seems to be, that the constitution of the ordinary law courts was essentially defective. We have mentioned incidentally that, of the 9,426 cases sent from the Courts of Conciliation to the law courts in a single year, only 2,355 were decided, leaving 7,071 undetermined. It is hardly matter for surprise that people should rest content with the award of a Court of Conciliation, even if unsatisfactory, rather than submit to the long delay of justice which this fact discloses.
The reader, too, will not have failed to notice that the nobility, the clergy, and the army have courts of their own, and are not amenable to the ordinary tribunals; so that a Court of Conciliation is the only place where a peasant can have even a hearing before a possibly impartial judge against any member of the privileged classes.
And this brings us to the chief cause of the success attending these courts in Denmark, which is undoubtedly to be found in the general state of society, in that distinction between classes, and those remains of the feudal system, which exist to a greater extent in Denmark than in any other nation of Western Europe. The grand bailiff who holds the court in the country, or his deputy, who is often the clergyman of the parish, however void of compulsion his awards may be in theory, is yet invested with a temporal or spiritual power which carries his advice with the weight of a command to his tenants or parishioners. The value of these courts lies not in their organization, but in the personal character and influence of the judges. To give the institution its effect, the suitors must look up to the opinion and advice of the judge as only an ignorant and dependent people can look up, with a readiness to yield their opinions and wishes to one whom they personally revere as higher than themselves. Few would think it desirable, none probably possible, that such a condition of society as this should exist even in the most rural districts of the Northern States. The least elevated and educated Yankee holds his opinions on matters affecting his own purse and person too tenaciously, and with too