Page:The Green Bag (1889–1914), Volume 10.pdf/434

 Some Points in Roman-Dutch Procedure. Q. Then will you kindly answer me one more question. Why did that warehouse fall? The witness paused, and Benjamin, with a pleasant twinkle in his eye, sat down with almost a bump on his seat. The pause continued, and the effect was so striking that jurymen, bystanders and all could not resist a hearty laugh, which terri bly diminished the effect of a long and reasoned reply, which the expert gave as accounting for his conclusion. "Thank you," said Benjamin, slowly and

401

calmly, " I have no more questions with which to trouble you." The result was irresistible, and no inge nuity on the part of the learned counsel for the defendant could restore the lost ground. Verdict for the plaintiff, and damages. [Here the MS. ends abruptly. Ill-health com pelled Benjamin to retire from practice early in 1883, and the farewell banquet in the Inner Temple Hall, above alluded to, was held on June 30. In May, 1884, he died at Paris, where his wife, who was a Frenchwoman, and his daughter had for some time been living.]

SOME POINTS IN ROMAN-DUTCH PROCEDURE. ONE of cne problems meeting all who have been concerned with framing or amending systems of judicial procedure is that of deterring persons from bringing illfounded actions, whilst on the other hand, those who have valid claims should not be impeded by any greater difficulties than naturally belong to the subject. In this connection the question of costs has an im portant place. I have known doctrinaires maintain that courts of justice ought to be absolutely open to suitors, the expenses of all litigation being defrayed by the state, with the exception, perhaps, of the fees of advocates — their employment, however, be ing assumed to be not at all essential. Very free access to the courts acts, no doubt, like a safety valve, so that disputes, which other wise might, in some states of society, lead to disastrous personal conflicts, being fully dis cussed and dealt with by judicial processes, get arranged, and are no longer a source of danger. Thus, I have known many in stances in the Gold Coast Colony, in which powerful chiefs would bring their conflicting claims to territory before the English judge, who represented the great queen dwelling beyond the seas, and submit to his arbitra ment after an enormous amount of discus

sion and statement of evidence. Without this resource such disputes would have been fought out with guns and drums, and the dire concomitants of private war. On the other hand, some of the old law-givers seem to have thought that all litigation was evil, as disturbing the concord and good feeling which ought to prevail amongst fellow-citizens, and that not only should the causes of strife be averted by sedulous care in framing the laws, but that there should be deterrents against litigation in the shape of penalties. The safest course here, as in so many other cases, is no doubt the middle one — that while all facilities should be given for the discussion and adjudication by the courts of all genuine claims and defenses, the ut most practicable safeguards should be in terposed against abuse of the processes of the law, by rash and ill-considered, or by specu lative litigation, which last species is substan tially, although it may not be formally, within the categories of fraud. There were three deterrent forces against improper litigation made use of in the olden times — the religious sanction of an oath, a pecuniary mulct, and the penalty of infamia; and all these three appear to have co-existed.