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Courts constituted by their authority are called patrimonial courts. It is by virtue of the right of property that the monarch appoints his amtmen, who being officers for the administration of justice, amts are considered as patrimonial courts. The jurisdiction of town magistrates was confined to the land which belonged to the town, or which was under its immediate protection, and they possessed this jurisdiction by virtue of the right of property.
Towns, therefore, are also patrimonial courts. Hannover itself presents an illustration of this truth. It is divided into two parts, the land on which one is built belongs to the town magistracy, and is under its jurisdiction; the land on which the other is built belongs to the sovereign, and is placed under Edition: I do not know the number of patrimonial courts belonging to individual noblemen which yet remain in Hannover, but at present the number is not considerable.
The royal amts amount to at least Patrimonial courts are distinguished by some of them having jurisdiction in civil suits only, while others have both civil and criminal jurisdiction. This difference is not a consequence of these courts belonging to individuals, or to the monarch; it seems to have been introduced by chance, and to have been established by custom. There are at least twenty towns with tribunals possessing full powers, and there are at least two courts belonging to noblemen, those of Hardenberg and Adelepsen, which also possess them.
A committee of the states which was appointed to inquire into the administration of justice, recommended the separation of all criminal jurisdiction from the patrimonial courts, which are the property of individuals; but owing, I believe, to the power of the individuals, this recommendation has not yet been complied with.
The magistracy of the towns has been described in the chapter on Government. The members of patrimonial tribunals are appointed by the proprietors. They must be persons properly educated, and, in general, they must be approved of by the Edition: Each of these tribunals consists at least of a judge, with two assistants, who bear the title of secretaries, or assessors.
Many of them employ several more assistants. Formerly these judges presided in some instances over two courts, which afforded them an opportunity, by multiplying the acts of both courts, to increase their emoluments at the expence of the unhappy suitors. They were some times also advocates by other tribunals; and on the borders of two countries, they sometimes, till they were forbid, served two different masters. There are at least three educated jurisconsults, distinguished as amtmen, assessors, and secretaries, at each of the one hundred and sixty amts mentioned, so that the persons of this profession employed in the minor tribunals may be considered as extremely numerous.
The amtman frequently unites a great deal of power in his own hands by being at the same time the tenant of the royal property within his district. In this the tithes, and a right to a certain portion of the labour of the peasants, is frequently included.
He has also the superintendence of roads and bridges, in short, all the powers of the proprietor, of government, of the administration of justice, and of the police within his district. The persons living under him may certainly apply to superior courts if he oppress them, but, as far as the peasantry are concerned, this must be out of their power from poverty, and Edition: They possess all their consequence without their pride, independence, or ferocity.
Among their other duties, I must not forget to enumerate, that they are ordered frequently to visit the inns, in order to see if the guests have good food and drink provided for them.
They have also to see that no more of the land occupied by the peasant is ploughed than he is allowed to plough by his contract.
The union of the administration of the royal property with the administration of justice, has long been a matter of complaint, and probably of serious inconvenience. It is, however, common in Germany, though, in some of the countries, in Brunswick for example, the two are separated.
Absurd as the union appears, if the separation is to make two offices where one only now exists, it must rather be considered as an evil than as a good. The best way to affect it would be, to sell or let the domains as if they were private property.
All these minor officers of justice are principally paid by fees, which are regulated according to law. Magistrates of towns have also salaries. But it is unwisely made the interest of all these gentlemen to increase law-suits, and thus increase their emoluments. Since the restoration of Hannover to its former masters, many minor patrimonial courts have been abolished.
The French had also abolished them, but it is only now that it can be said that they are abolished never again to be revived. It is curious to read of courts whose power was confined to single houses, or by the marks made by the water as it dropped from their roofs.
There were many other similar ones, with uncouth untranslateable names, and they prove completely how utterly ignorant our ancestors were of what we call order and good police. In all the alterations which have been made, it is evident that power is leaving the nobles, and concentrating itself in the hands of the sovereign. In all the former practices, a state of society may be traced, in which power and government were founded on no views of general good, Edition: He who was stronger than his neighbours usurped authority over them, and he established his power for the gratification of his own lusts.
The general good of a former period could only mean the good of a part of those inhabitants who now form the different kingdoms of Europe. As conquest and usurpation went forward,—as the ambition of governing was more extensively gratified—the terms general good were extended from the castle of the noble to the neighbouring villages and towns, and at length they were applied to provinces and nations. The powers of modern governments were originally ill-acquired, and, from being concentrated in the hands of few sovereigns, they have now become an enormous evil.
Its very enormity, however, makes it more visible, and we may hope for its limitation from the doubts and alarm it will excite. Most of the patrimonial courts possessing jurisdiction in criminal causes have a curious method of examining or trying prisoners, without passing sentence on them. Many of the magistrates of the minor courts are ordered to send all the acts, as the papers relative to processes are called, to some superior court, for its judgment.
And the magistrates of the towns, who are not obliged, very frequently send the acts both of civil and criminal processes to some superior tribunal, or to the members of the faculty of jurisprudence, at some university, Edition: The examinator and the judge are, in such cases, different persons, and none of those passions which are so likely to be occasioned in the examining judge, by the obstinacy, impertinence, or independence, of the persons examined, can have any influence on the judge who pronounces the sentence.
He may be deceived by the reports of the examining judge, but he has the power, if he suspects any thing wrong, to send the acts back to be revised.
The examiner may give to the evidence the colour of his own kindness or malignity, but the operation of either of these dispositions is easily detected. The judge, therefore, pronounces according to the facts presented to him, independent of all other sympathies than those occasioned by his preformed moral opinions, and so far as these facts are correctly stated, his judgment is likely to be correct.
By the acts of one tribunal being thus exposed to the inspection of another, a sort of publicity, though far from the best sort of publicity, is given to the proceedings of courts, which produces, in a small degree, motives for honesty. On the other hand, as distant judges share with the examiner the responsibility of ordering the punishment, he may sometimes be tempted to be careless or unjust.
I am not quite sure that it is right to condemn a man to punishment after an examination of a written Edition: In a personal examination there are many little circumstances of voice and manner, which have a powerful effect on determining our opinions as to guilt or innocence.
These are part of the materials of an accurate judgment, and of all these the distant judge must be entirely ignorant. There is a consciousness of innocence or of guilt, which lives in the eye or speaks in the voice of every man; there is a nobility of thought, whose simple utterance commands belief; and there is a baseness of mind which deprives all words of any power of conviction. These the sentencing judge should see and hear, for it is on his conscience the weight of a conviction, or the joy of an acquittal, rests.
A man may be capable of convincing his judge by one emphatic word; but this power is denied to every prisoner who is sentenced by judges whom he never saw. The law also hurls its vengeance against certain specified actions, the guilt of which was determined, perhaps, by the sympathies of law-makers who lived some ages ago. But guilt or innocence is something different from a visible or tangible action. A rifleman of an army coolly selects his victim, and kills him, but he does not commit murder.
An individual who shoots his deadliest foe, the despoiler of his fortunes, or the defiler of his Edition: The law, that is, the sympathies and opinions of perhaps barbarous legislators, condemns him to expiate with his life the act which he has committed.
I shall not decide if he or the man who kills his fellow-men for sixpence per day be most guilty; but from this example, it is clear that guilt is perfectly independent of any visible action. And a judge who pronounces on mere facts, who condemns any man because he has done a certain action, inflicts on that action all the pain which the antipathy of the legislator appropriated to guilt.
There are seven superior tribunals, called Royal Justice Chanceries; one is situated in the town of Hannover; one at Celle: Each one of these chanceries has a director, and six or seven persons called justice-councillors, who are the judges, with a proportionate quantity of auditors, secretaries, assessors, taxators, clerks, and persons bearing other titles, to the amount of thirty persons for the worst provided, and fifty for the best provided court.
The jurisdiction of each of these courts extends over several provinces, but it does not extend equally to all persons. The members of the chief court of appeal at Celle, with their domestics, children, wives, and widows, so long as they remain at Celle, are amenable only to this tribunal, with sundry other similar exceptions. These courts are, of the first instance, for certain persons, such as all their own members, of whatever rank, for noblemen, for clergymen, for both the actual and titular servants of the crown, and also for some persons who, being under the jurisdiction of some inferior court, have obtained the special privilege of having these as courts of first instance.
They are courts of second instance, or of appeal, to persons to whom the amts towns and private patrimonial courts are courts of first instance.
Such distinctions are very strange. They appear to suppose that the inferior tribunals are only capable of administering justice to inferior persons.
By the members of the various courts being subjected to these courts only, and by the jurisdiction of certain courts being obtained as a favour, it seems as if partiality, or something more than justice, were to be obtained for particular persons. There are some reasons, however, to believe, though this practice may now be perverted, that it had its origin in a principle which was once common to all Germany, and somewhat analogous to that great axiom of the English law, that every man should be tried by Edition: The jurisdiction of each of these tribunals is not only limited by place, but also by the condition of the parties, and the nature of the offence committed, or the value of the thing in dispute.
All these distinctions must be accurately known, before an action can be brought, or a prosecution commenced; or the court will declare its incompetence; or, being incompetent, if it gives judgment, its incompetence is a reason for appeal, which will be sure to render the judgment invalid. The director and all the councillors of the justice chanceries are nominated by the ministry, and confirmed by the king. Advocates do not rise to these situations. The councillors or judges are Edition: The auditors also are nominated by the ministers, and confirmed by the king.
They are examined by the director and the whole of the bench, both when they are made auditors and when they are made judges. The college or chancery in general divides itself into two parts, for the quicker dispatch of business; and from this circumstance, and the number of courts, the auditors and the judges have very little to do.
Instead of being grave men, dignified by great wigs and silken gowns, they are some of the gayest young men of the whole country. The director of the justice chancery of Hannover, who may be considered as one of the dignitaries of the law, dined regularly every day at a tavern, where the price of dinner was about 1s.
There is a great difference between such a person and an English judge. If the latter have more wealth, more stately vigour of mind, and a Edition: An Hannoverian judge has in truth so little to do with professional duties, and so much with the amusements of society, that he has every appearance of being a perfect man of the world. He bears no distinctive professional marks. The settled salaries of the directors and of the councillors of justice are said to amount to or Thalers per year,—from L.
They have also fees, the amount of which cannot be known. They are generally considered as holding their places for life, unless they are promoted. One instance has been mentioned of a judge being removed at the will of the sovereign.
Several of the judges enjoy other situations under the government. Some of them, indeed, such as superintendent of a theatre, seem to be incompatible with the dignity of a judge. From this circumstance it is correct to assert, that the judges are dependant on the crown. If the country be to have political liberty, the perfect independence of these gentlemen should be one of the first things insisted on.
Till Augustit was composed of a president and fourteen chief councillors of appeal, as judges. At that time four more councillors or Edition: It now, therefore, consists of one president, two vice-presidents, and eighteen judges, with a proportionate quantity of secretaries, clerks, procurors, and other subordinate persons. The reason assigned for the addition to the number of judges, was the increase of business which the court was likely to have, from the territories of Hannover being so much increased.
It was therefore wisely declared, with regard to religious toleration, that these new members might be Catholics or Calvinists. And as the right of presentation to the new places was at the same time conceded to the states of these provinces, the declaration would not remain a dead letter. It was not mere words which the sovereign could follow or not as he pleased. The king of Hannover has no spiritual councillors with large revenues.
Neither bishops nor archbishops have access to the royal ear, and influence on the royal conscience; and he is much more tolerant than the king of Great Britain. Though he be a Protestant monarch, Edition: The tenderness of the royal conscience has often been made the excuse for withholding from the Catholics of Great Britain some of their rights as subjects of the empire. But the same tenderness is not felt in the much more beloved kingdom of Hannover.
This, therefore, must be considered as the mere excuse which interested men have made to cover their own bigotry. A portion of the members of this court, six, with the three presidents, are appointed by the sovereign; the other twelve are appointed by the states. This practice was once general in Germany. For example, the members of the celebrated Cammer Gericht, which was a court for the whole empire, were partly appointed by the emperor, and partly by the states of the empire, who were, however, in this case the electors, and other sovereign princes.
The reason assigned for this was that members might be named out of every province, who were acquainted with the local laws. Another feature common to all the courts of justice in Germany may be traced in the former constitution of this one.
When a part of them met in a committee, without the presence of the usual president or vice-president, the youngest noble member assumed the temporary presidency before the eldest of the learned members. It is an evidence of improvement, that by the regulations of Augustthis superiority of the nobles, which has been long complained of, was abolished. In all matters of business the eldest learned member now follows the eldest noble member, and in committees, the eldest member present, whether noble or learned, is the president.
Notwithstanding this distinction of noble and learned members, the nobles are also learned; that is, they study jurisprudence; and when they are appointed councillors of this court, they are examined by the other members, and are obliged to give a proof of their ability to fill the office, by drawing up a legal argument on some particular case. These judges are, both from situation and birth, men of distinction in society.
Even the learned members are generally men of privileged families, and they often possess sufficient influence to bequeath their office to one of their sons.
The judges from the minor tribunals, and the auditors of this court, are the persons from Edition: Its title explains most of its duties. It is the last court of appeal for causes sent from the other courts. It is a court of the first instance for all the members of the court, for parties that live, and for properties that lie in different provinces, which are subject to different jurisdictions, and it is a court of first instance in all cases where a jurisdiction is doubtful.
It is a court of appeal both in civil and criminal causes, and it has a criminal jurisdiction over the persons to whom it is a court of first instance. It has the inspection of all the minor tribunals of the kingdom, and the examination of persons who, after a due course of study, wish to practise as advocates.
It is necessary for all the advocates to undergo this examination, and to have the permission of this or some other court before they can practise.
On questions of great importance the whole court are called on for their opinion. Generally, however, it carries on business by means of three committees, each of which has a president.
Some particular member is appointed to examine the written acts of every case, and report on them. In fact, with all the multitude of judges, the judgment is more generally the result of the investigations carried on by one person, than by several. The salaries of the members are said to be Edition: The persons connected with the law, who are said to make most money, are called cancellisten, and their duty consists chiefly in clerkship.
The reputation of this court for impartiality is very great. George the Second expressed his surprise to one of his friends, that he lost all his causes in this court. There was a dispute between the government of Hannover and some of its subjects, relative to some domanial property which had been sold during the French government.
The members are bound, in cases in which the crown is concerned, to do justice with impartiality, without regard to any body but God; and they have generally so well preserved their character, that the court has obtained the honourable name of the Doomsday Court. The expression is more applicable in the German than in the English language, because our day of judgment is expressed Edition: And it is this name which is given to the court of appeal.
Such are the courts, and such the judges appointed in Hannover to administer justice. They may be taken as a model of the courts of other parts of Germany. Each country has its subordinate courts and its court of appeal, each of which is composed of many members. In all a due regard to subordination may be traced, and in all, the same form, that of a college, as a body of judges are called, exists.
This is a distinctive mark of the institutions of Germany. It is a sign of the influence of a sect, and of the want of influence on the part of the people. The college form of the different courts is very much praised, as leading to more accurate judgments. To me it appears, that the reporter is the only judge; and all the ends here proposed are much better obtained by public examinations, public pleadings, and trial by jury. When the administration of justice in our own country is compared with that of other countries, it seems as if one excellence of the trial by jury is its natural tendency Edition: That justice is not cheap in Great Britain, arises from other causes than the institution of juries; and certainly this evil would not be remedied by the appointment of a multitude of judges with fees, when it is because a few at present have fees, that justice is so extravagant.
The whole of the sittings of the judges are held in such secrecy, that even persons having business with them, such as advocates, are not allowed to enter their room without being previously announced, and without having obtained permission. No more of their proceedings than the judgments which they deliver, and the executions which they order, are known to the public. With this permission to do wrong, there is, perhaps, no land where the character of all the superior functionaries employed in administering justice is more unsullied than in this.
I have suggested to persons who were in many particulars hostile to these functionaries, that it would be easy to bribe them. This sort of union between permission to do ill, and abstaining from doing it, is a very anomalous feature in the character of persons enjoying power, and it does vast honour to the individuals.
Its causes may probably be discovered in the general good education Edition: The advocates, who are generally at the same time notaries, are obliged to study jurisprudence at some university, for three years; but this term, provided they have before studied any other branch of science, and have afterwards diligently devoted themselves to jurisprudence, may be shortened to them.
Advocates are directed to be conscientious men; and to make them so, they are threatened in all cases of bad behaviour with punishment. They are commanded to begin no suit of whose justice they are not convinced, and to cease the pleadings at any time in the course of it, if they discover that the cause is unjust. They may be fined at the discretion of the judges, for contravening these rules, or for bringing frivolous appeals. They are commanded to promote the settlement of disputes, by arbitration, to speak of the magistrates with respect, Edition: They are very moderately paid, though the regulations which fix the amount of their fees are not rigidly attended to.
One or two of them in Hannover are, comparatively, opulent men; but as a body, the advocates of Germany do not possess the same rank, and the same political influence, as the advocates of Britain. The influence of the sect arises from the number of educated lawyers who are magistrates, and who fill situations under government, but to which the professional advocate rarely aspires, and which he rarely obtains. Their want of political influence may be in some measure owing to their numbers, which may have made the whole too cheap.
There are fifty for the little town of Hannover, and a proportionate number for all the other towns in which a justice chancery is situated. A quantity also are scattered through the country, sometimes pleading before the amtman, sometimes filling, as magistrates of some of the smaller towns, the two offices of advocate and judge. Another reason probably is, that there are very few higher situations open to them. There can be no doubt that much of the importance of the counsellors or advocates in our country arises from public pleading, by which they embody themselves with the interests of the people, and make themselves so well known, that they are afterwards selected to fill offices of political importance.
The advocates of France, like the advocates of Germany, were also an insignificant race of people till the Revolution and public pleadings brought them into notice, and gave them political importance. We cannot hesitate, therefore, to ascribe the want of importance of the professional advocates of Germany chiefly to the want in that country of all public pleading.
The order which has been mentioned above for the advocates of Hannover, to treat each other in their writings with politeness and respect, and the want of public pleading, do not allow that browbeating of witnesses,—that scandalous aspersion of private character; and that vile abuse which the gentlemen of the English bar sometimes heap on their unfortunate victims, and which is very often urged by foreigners as a great national reproach to us.
In speaking with a German gentleman, who had been long in England, on the value of the two different modes of procedure, the secret one of Germany or the public one of England, most of his objections to our mode rested on the vituperation Edition: A virtuous and a retired man might be dragged as an evidence to a court of law, or be compelled to appear as a prosecutor, and must submit to that mental torture which may be there inflicted, and which is possibly not inferior to the thumb-screws or the parchment boot of more arbitrary tribunals.
If these gentlemen have any regard for their own interest, they should be careful how they bring discredit on their own profession, and how they bring the practice of public pleading into disrepute; for they may be assured, when they lose the countenance of the public, they will sink into that same degree of dependant insignificance which is common to advocates in other parts of Europe.
In Hannover, so well as in England, there is no regular code of civil law, and its place is in some measure supplied, in both countries, by similar expedients. In the former country there are, and have been for many years, sorts of statuary laws made by the sovereign and the states conjointly; and, although the rescripts of the sovereign bear not the name of laws, yet, in their actual effects, they may be so considered.
Some property is still held by feudal tenures; some by a tenure corresponding to our copy-hold; and some land is absolutely free. Because at one time each province was an independent power, each one has different statuary laws; and because the greater part of the towns were in like manner independent, because, in fact, each nobleman was a sovereign, the provinces, the towns, the villages, and even separate properties, Edition: When neither these, nor the statuary laws, nor the customs of the province, dictate what is to be done in matters of dispute, the jurisconsults apply to the law of Rome, and regulate their decisions by its precepts.
It will be easy for the reader to conceive the perplexity, complication, and confusion, which must necessarily ensue by mixing such dissimilar institutions as the ancient laws and customs of the almost barbarous, yet free inhabitants of the north of Germany, with the regulations of the polished, effeminate, and degraded inhabitants of the south of Italy. It will be easily conceived, also, what a quantity of power it must give the interpreters of the laws, that those by which they endeavour to regulate all the others, are written in a language which is not the language of the people.
It is impossible to describe these laws accurately without describing them minutely, and therefore nothing further will here be said of them.
In England civil and criminal processes are both very much alike. In both it is required to establish a fact, and in both it is done by an examination Edition: The names and the first steps of the process are different, but whatever has any influence on the finding of the jury, is in both substantially the same.
In Germany they are different from one another, and the manner of conducting both is different in the different countries, and even in the different provinces of Hannover. Causes of small value, that is, not exceeding L. Then, however, no persons are admitted but the advocates and the parties, so that publicity of judicial proceedings, except that sort of publicity before mentioned, is unknown. When a person thinks he has a just cause of complaint against any other person, he applies to a regular advocate, and makes his complaint known to him.
The advocate sifts, or ought to sift, the complaint to the bottom,—ought to hear what the man has to say, and what his witnesses have to say. When he has done this, and ascertained to what court the jurisdiction of the particular case belongs, he writes a petition to this court to grant him what he supposes just.
In this petition, a duplicate of which must be given into court, the facts of the case are to be stated, the nature of the proof to be brought hinted at, the instruments which relate to the claims, either in the original or copies of them, Edition: Some courts have ordered,—for judges are allowed, in Germany as in England, to prescribe the conditions on which they will administer justice,—that each of these petitions shall relate to one point only.
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