Front Page Titles (by Subject) CHAPTER I.: courts for the administration of justice. - Travels in the North of Germany, vol. 2
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CHAPTER I.: courts for the administration of justice. - Thomas Hodgskin, Travels in the North of Germany, vol. 2 
Travels in the North of Germany, describing the Present State of the Social and Political Institutions, the Agriculture, Manufactures, Commerce, Education, Arts and Manners in that Country, particularly in the Kingdom of Hannover (Edinburgh: Archibald Constable, 1820). Vol. 2
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courts for the administration of justice.
Property the foundation of the right to administer justice.—Patrimonial courts.—Justice chanceries.—Appointments of judges.—Salaries.—Chief court of appeal.—An example of tolerance.—Curious distinction.—High reputation of this court.—Advocates.—Regulations concerning.—Effect of public pleading on their importance.
The French introduced the code Napoleon, and their own forms of procedure, into Hannover. They swept away the whole of the ancient institutions for the administration of justice, but they did not possess the country long enough to conquer the habits of the people, and, with some few amendments, the ancient methods are again fully established. The present tribunals may be conveniently described as patrimonial courts, justice chanceries, and the court of appeal.
Both the administration of justice, and the power of declaring what justice ought to be, or the whole of the legislative and judicial functions, were in most European countries, at a period antecedent to the present, considered as the attribute of property. Many of the regulations now imposed on us as the will of the society, were originally the regulations of lords for their slaves; and in their origin some of the highly honoured laws of Europe may be compared to the slave-codes of the West Indies. This state of things still in some measure exists in Hannover. The possessors of certain properties have the power of administering justice within their limits, and they appoint all the persons connected with the administration of justice. 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 a person appointed by him. 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 160.
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 Crown. 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 over them he is completely the lord. The amtmen sometimes live very splendidly, and when they happen to dwell in some old monastery, or ancient baron’s castle, they seem not imperfectly to represent the feudal nobility. 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.∗ This is surely, therefore, a most benevolent government, which takes such care of its subjects’ palates and health, and which so carefully limits their exertions.
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 whole of these functionaries are said to have borne their power so meekly, that it is doubtful if the evil of multiplying offices should be incurred for the advantages of the separation. 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, but on individual strength. 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, who pronounce the judgment. 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 statement of facts, and without being guided by sympathy or antipathy. 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 bed, though he have been ten thousand times more injured than the rifleman, commits murder. 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: one at Göttingen; one at Stade; one at Osnabrück; one at Hildesheim; and one at Aurich, in East Friezland. 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. Thus the magistracy of the town of Hannover, with the exception of the bürgermeisters, are amenable only to the town tribunals. 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 his peers; at least, that no man should be tried by persons of rank inferior to his own.∗
From the great many tribunals which there are in the kingdom, and from this difference in their jurisdiction, there is great uncertainty to which court a person must apply. In the town of Göttingen, for example, which contains 12,000 inhabitants, there are eight different tribunals, including those of the university as one. 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 taken, in general, according to seniority, from what are called the auditors, who are young men of good or noble families, who study jurisprudence expressly to fill these situations, and who have little else to do till they receive the place of judge, but to attend to what is done by the judges. 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. 8d. without wine, and 2s. 9d. with. He went regularly to some public garden to drink his afternoon’s coffee, and passed his evenings at a public place, playing ombre or whist. 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 greater dignity than the former, he has fewer of the light and amiable pleasures of life. 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 1200 or 1500 Thalers per year,—from L.200 to L.500. 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.
The chief court of appeal, situated at Celle in the province of Lüneburg, was first established in 1713. Till August 1818, it was composed of a president and fourteen chief councillors of appeal, as judges. At that time four more councillors or judges were added, and two vice-presidents. 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. One of the additional councillors was said to be for Friezland, one for Hildesheim, one for Osnabrück, and one for the other little spots which have lately rounded the territories of Hannover.
The greater part of the inhabitants of Hildesheim and Osnabrück are Catholics, and those of Friezland are Calvinists. 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, and his subjects chiefly Protestants, he admits Catholics to be members of the highest court of appeal in his kingdom; and he sets an example of treating his subjects equally, without any regard to their religious persuasion, which is worthy of the imitation of the monarch of England. 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.
It is composed of two distinct banks of judges, a bank of nobles, and a bank of learned men; and formerly the youngest noble member preceded in rank the oldest learned member. 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 August 1818, this 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 amongst whom the judges of the chief court are selected.
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 1500 to 1800 Thalers, or from L.250 to L.300 per year, exclusive of fees, whose amount is totally unknown, but every one is regulated by laws. 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. “Sire,” was the reply, “the reason is obvious;—your Majesty is always in the wrong.” Nor is its reputation now diminished. 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. They recently petitioned the diet at Frankfort, that the question might be decided by a court of law; and if their petition were granted, they declared they selected his Majesty’s court of appeal at Celle, as the one to which they wished the question might be referred. 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 in that language by words signifying the last court, Dasjungste Gericht. 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. The matter in all its “bearings,” it is said, “is discussed by the different members, and the opinions or judgments of a majority, which are so much better than the opinions of one person, decide.” The maxim is true, but it is not clear that it is followed in these courts. 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 to make justice cheap to the community. 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. “True,” was the reply, “but they are all too honest to allow themselves to be bribed.” A similar opinion of their virtue is generally entertained. 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 and manners, and in the peaceful enjoyment of superiority which the members derive from their situation, without being eternally goaded by a desire to obtain the distinction which is in other countries more exclusively given to wealth.
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. With certificates of three years’ attendance and industry, the young man announces himself to some one of the tribunals, generally to the chief court of appeal at Celle, which examines him, and allows him to matriculate, and practise as an advocate, if he be found qualified. 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, and to treat their opponents with politeness.
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. They may become secretaries to the magistracy of the larger towns; they may even become bürgermeisters, but this is rare; and all the higher places are possessed and almost hereditarily enjoyed by families, no member of which ever engages in the business of an advocate. 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 our barristers allow themselves to use. No man’s character, he said, was safe from their attacks if it were for the interest of their clients to traduce it. 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.
[∗]See Pütter, Vol. I. 210, 211, for a proof that this principle was general, and that something analogous to juries were known in all parts of Germany.