Apart from his exertions in the House, which were noticed in the last chapter, Denman's next important contribution to the progress of law amendment was in 1828, when he had ceased for a time to be a member of the legislature. In that year, in consequence of the great effect produced on the House and in the country by Brougham's celebrated speech (on February 7, 1828) for an address to the Crown relative to the state of the Law,' a Commission was appointed to inquire into and report on the proceedings in actions at law. 2 In his answers, sent in on November 14, 1828, to certain queries circulated by the Commissioners, Denman gave a great deal of valuable evidence, in the course of which he strongly recommended many legal reforms, the whole of which have since been carried out,-such as the abolition of the Welsh judicature; an increase in the number of the Common Law Judges; the assimilation of practice and procedure in the three Courts of Common Law; the throwing open of the Court of Common Pleas to the whole bar; the abolition of legal fictions, the simplification of pleadings and forms of action; the practice of allowing the defendant's counsel to sum up the evidence, leaving to the plaintiff's counsel, if he chooses to exercise it, the right of the general reply.' 1 This was one of Brougham's greatest oratorical achievements: he spoke for nearly six hours, travelling over the whole vast field of the administration of the law. The conclusion of his speech ranks among the masterpieces of English eloquence. One passage in it is particularly celebrated that in which, after adverting to the boast of Augustus, "that he found Rome of brick, and left it of marble," he continues-" But how much nobler will be our Sovereign's boast when he shall have it to say that he found Law dear, and left it cheap; found it a sealed book, and left it a living letter; found it the patrimony of the rich, left it the inheritance of the poor; found it the two-edged sword of craft and oppression, left it the staff of honesty and the shield of innocence." Thirty-five years have passed since these memorable words were spoken, and the great aspiration is still far from being accomplished; but in those thirty-five years so much progress has been made that the Law Reformers of to-day may well be encouraged to proceed hopefully with their great work, moving on unweariedly—" without haste, but without rest." 2 By 11 Gen. IV. and I Wm. IV. c. 70, passed July 23, 1830. 3 All these reforms have since been carried out: those last-mentioned by the Common Law Procedure Acts of 1852 and 1854. But he did not limit himself to simply answering the questions thus put to him. He also made public his general views on some important points connected with the amendment of the law (not directly adverted to in the paper circulated by the Commissioners) in a pamphlet entitled "Considerations respectfully submitted to the Commissioners now sitting to inquire into proceedings. in Actions at Law." In this publication, besides a strongly expressed and ably reasoned view (a view since embodied in an act of the legislature by Denman's own instrumentality),' to the effect that no evidence whatever should be absolutely rejected on the ground of incompetency from interest, he also made several valuable suggestions regarding the preliminary Settlement of Issues, which appear well worthy of attention even by the Law Reformers of today. Under this impression, and as the pamphlet has been long out of print, the following passages from it relating to this matter are here reproduced: "After the action is commenced, measures should be at once taken for affording to the litigants a pause for consideration, and opportunities for adjustment. The way ought to be cleared for a fair trial of the real point at issue, if tried it must be. A judge at chambers, or some similar authority, should bring the parties together, and require from both reasonable admissions, which ought to be preserved and handed forward for subsequent use in the progress of the cause. "In this preliminary stage the description of the litigants might be definitely settled. Not one moment of the precious hours devoted to public justice ought to be wasted in inquiring whether the parties to the suit have given themselves a true description. Such inquiries are now of frequent occurrence: they sometimes defeat substantial justice, and plaintiffs are compelled to pay their debtor's costs, exceeding, in some cases, the amount of the debt, because their witness, at the moment of trial, has forgotten the names composing the firm under which they trade.' 1 The Act of 1843, 6 and 7 Vic. c. 85, known as Lord Denman's Act. 2 This has been remedied in a great measure of late years by granting increased facilities of amendment at the trial. "The written instruments on which claims are founded, and by which they may be answered, should be produced to the party whose signature they bear. If the handwriting is yours, and the day of payment past, pay the money forthwith, or show a sufficient excuse, otherwise judgment and execution.' The same kind of language to the plaintiff, when the burden of proof is shifted back to him, as by the production of a receipt, etc. In such cases a formal procedure and lengthened pleadings are but a pedantic mockery-judges and juries an unwieldly machinery for securing that delay of justice which is so often synonymous with its denial. 'Many suits would thus terminate before they were well begun, by being early proved desperate or irresistible, and that to the great advantage of the parties. A long pedigree might be put hors de combat in a moment by a single parish register. If the dispute turned solely on the construction of a deed or will, the decision of this preliminary judicature would either at once extinguish groundless hopes, or, if the party chose to persevere, a case might be drawn up for the Court without the expense and delay of a trial. So, if it were made apparent, from a statement of demands, that long mutual accounts must be unravelled, a power might be given of immediate reference to an arbitrator or an auditor. "In this, the proper opportunity for explanations, they ought to be frankly given or rigorously exacted, and the suppression of known and material facts not only be deemed disreputable, but punished with costs. "But when the cause must go on to trial, the same machinery might be employed to sweep away extrinsic circumstances, and bring the plain question of fact alone to the cognizance of the jury. Thus, in actions on penal statutes, or against magistrates or public officers, questions whether the suit is brought at a proper period, in the proper place, after the proper notice, etc., might be settled at this preliminary stage. In cases depending on written documents, as actions of covenant and the like, 1 This principle has been to some extent adopted in the Bills of Exchange Act of 1865, 18 and 19 Vic. c. 67. actions or prosecutions for libel or for perjury, the parties should agree at this preliminary stage on the identical paper that gives birth to the contest. To prevent future mistakes or surprise, it should be fully inspected by both parties, or those representing them, verified by the signature of both, and of the judge, and intrusted to impartial hands (the officer of the court, for instance) to be produced at the trial. This would save the time of the public, often shamefully wasted in minute examinations, and would often prevent the discomfiture of justice." These are valuable and weighty observations. Each litigant ought, before proceeding to a final trial, to know exactly the case on which his adversary relies (as in the French and other continental systems), all objections of mere form and technicality (if allowed to be made at all) should be disposed of in the first instance, leaving nothing to be adjudicated upon in the last resort but serious and substantial questions of fact, going to the real merits of the case-the very right and truth of the cause, for the decision of which the litigants have invoked the assistance of the Court. The above were the principal public contributions made by Denman to the cause of Law Amendment during the period now under review; but, besides these, he was also in the habit, as he has stated in the personal narrative, of communicating from time to time to the Home Office all such suggestions for the improvement of legal procedure as struck him while practising at the Bar, or presiding over a criminal court as Common Serjeant. As will appear hereafter, he continued this laudable practice after he became Lord Chief Justice of England, and if these private and secret exertions be added * Settlement of issues has been the rule in the Indian Presidency Courts since 1862. The present writer, having had a seven years' judicial experi ence of the system in Bombay, is greatly in favor of it, as tending to check vexatious litigation, and cause cases to be finally tried on their merits only. It involves, perhaps, rather more active personal intervention between the litigant parties than is consistent with the habitudes of English judges, and has also a tendency, unless strictly watched, to become costly; but on the whole, and with proper supervision, it is an excellent system, and might be advantageously introduced into English jurisprudence. |