Front Page Titles (by Subject) CHAPTER II.: hannover—civil laws and processes. - Travels in the North of Germany, vol. 2
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CHAPTER II.: hannover—civil laws and processes. - 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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hannover—civil laws and processes.
No civil code.—Different laws.—Dissimilarity between civil and criminal process.—Civil process described.—Great length.—Difference of opinion as to codes of law.—Opinions of Savigny and Thibaut.
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, are all subjected to different laws and customs. 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. Laws, instead of being what Judge Blackstone has defined them, “a rule of conduct,” a beacon to direct us, are everywhere a trap for the unwary, an instrument employed by a particular class to enrich themselves at the expence of other men. 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 of such evidence as each party can bring to support his plea. 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. 2, brought before the minor tribunals, and having nothing very intricate in them, may be pleaded by speaking. 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, must be subjoined, and the remedy prayed for must be distinctly stated. 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. Consequently, when there are more points than one in dispute, either of law or of fact, a different petition must be written on each one. Other courts, again,—and this is now the general rule,—allow more points than one when the things litigated are not of great value, and the parties concerned are the same, to be mentioned in one petition. When the petitions also are made by conjoined persons, and when more than one person are complained of, they are now allowed to compress their complaint in one paper. The order to make more than one petition, shews the influence which jurisconsults have had, and the manner they have been disposed to employ it. Such an order could only have been made for the purpose of increasing their emoluments.
The judges privately examine this first petition, if it contains nothing reprehensible, they note the day on which it was given in, communicate it to the other party, and invite him to reply to it by a certain day. The chief court of appeal allows four weeks, the justice chanceries fourteen days; at the end of which time the answer must be given in. The first reply, called the Exceptions paper, contains the reasons the opposite party has to urge either as to forms, or as to the jurisdiction of the court, why he ought not directly to reply to the accusation. In general it prays further time. There are some cases in which the exceptions are thought to make further pleading unnecessary. When this is thought not to be the case, the reply contains some bye-blows at the complaint. The advocate hints at his opponent’s inaccuracy, boasts the means he has of shaming him, and skirmishes and makes sham fight with him. The history of the cause may be told, and if victory is certain, the point in dispute may be fairly and clearly stated. The judge has the power of sending back for revisal, or of refusing all petitions which are not dressed according to forms; and if they send one twice back, the point in dispute is taken against the party who fails in form or in elegance of phrase.
In this stage of the process, either party can require the judge to make his opponent find bail to answer the complaint, or to carry on the process. Bonds are required when the parties have no landed property in the province, or they are required to deposit a sum of money, or give such other security as the judges suppose will secure their attendance.
In this stage the judges have a curious power of terminating the cause, they examine it to the bottom, and calling the parties before them, recommend them to compromise it in the manner which seems fit to the judges. If their advice be not followed, and the thing in litigation will not pay the expence of the process, they are allowed to refuse further to hear the cause, and they decide it as they please. This is called suchen die Güte, and seems to be complained of by the lawyers as unsystematic. It does not allow them to chase one another through all the labyrinths of a process till they reach a formal decision.
Should the cause not be concluded in this manner, the Exceptions paper is communicated to the complainant, who replies in fourteen days, or a month, according as the cause is before the court of appeal, or one of the justice chanceries. The judge decides on the exceptions, or he communicates the reply to the opponent, who again rejoins in the prescribed time of fourteen days or a month. From these four papers the first judgment may be given. The judge, however, may allow the parties, or call on them, to make further explanations, but no cause is decided from less than these four papers. No others are necessary for a decision, there is no cross-examination of witnesses, no appealing to evidence, and the unhappy clients lose or gain their suit without the pleasure of knowing what is said in their behalf. Every man who raises a process is ignorant why he loses or gains an estate, except he learns it from the favour of his lawyer.
All the papers are written after a regular prescribed manner, and they are all subjected to stamp duties. Ours is not, therefore, the only country in which justice is taxed, and in the same proportion injustice protected.∗
When the preparatory steps are considered which are necessary to engage a lawyer, to collect evidence, and to write out the complaint; when the time which is allowed an adversary to reply, and the time again demanded before the reply is replied to, and when the time which the judge takes in examining these papers before he can decide, is recollected, it is clear that the shortest possible time in which any process can be completed in Germany is more than two months. And the courts are here always sitting. There are no assizes twice a year in Germany. It is not, however, unusual for the judges, who are subjected to no control, to delay giving their judgment for several weeks or months. A cause is, therefore, seldom terminated with the least possible delay, and with the power of appealing from a first decision, it may last for many years.
The first judgment, also, may be interlocutory or definitive. In the former case, there is some point which requires further elucidation, more documents are necessary, or more evidence is demanded, and the further hearing of the cause is then postponed for many months. When the judgment is definitive, it may then be appealed against, and when at length, after months and years of tedious waiting, a judgment is pronounced, from which there is no appeal, the law allows the execution to be staid in several ways. So tenacious have the judges been of doing every thing deliberately, and so fearful of not doing right, that a whole life is not thought too long to keep one case under consideration.
Law suits, when not absolutely endless, can yet be so protracted, when there are any funds to pay the lawyers, as to last the life of man; indeed, more than one process is known, which have lasted more than two or three generations. The interference of society, or rather of a few jurisconsults prostituting its name for their own selfish interest, is in such cases carried to the very climax of absurdity and injustice. They attempt to regulate the disputes of individuals, and points of litigation, that, if men listened only to the voice of right, might be thoroughly sifted and decided in a few hours or days, and that would be so decided but for them, they keep undecided for many years. The justice of lawyers is but another name for litigation and injustice. Yet men are told, and what is still more absurd, they can believe, that such practices are for the good of society. What a cumbrous means have legislators here devised for ascertaining what is right. But we may trace in this, as in all their regulations, the influence of a particular class, who have never sought any thing beyond their own interest, which they have called the good of society.
On this point, probably, Britain has no model to offer to Germany. Ours, as it has been aptly called, superstitious process, when not positively so bad as that of the Germans, is most wretched, and is much more worthy of being amended or destroyed than of being imitated. There is a blind faith in other doctrines than the doctrines of religion. Men have long had such a faith in the assertions of lawyers, and they will assuredly continue to suffer under their dominion while they place so much confidence in them.
All the means by which a process can be lengthened, and all the law chicanery which men can invent, are regularly taught at German universities. There are professors who instruct in the art of conducting processes, and who are particular in dwelling on the means of gaining a victory for a bad cause, or of so lengthening it as at least to perplex and ruin an opponent. This is a perversion of the mind, and a teaching of injustice, yet it is denominated science and wisdom. We ought not to wonder that a love of falsehood and chicanery should be common amongst men, while it is thus openly taught and praised.
There is one practice common throughout Germany which deserves mentioning, because it is a substitute, though possibly a bad one, and certainly an expensive one, for that publicity which all honest men should wish to give their transactions. The best security for both parties in all bargains of great value, in extensive contracts, and in mortgages, is to conduct them openly, and in the face of the world; then few men will cheat or be cheated. In countries where every thing is regulated, buying and selling, particularly buying and selling land, must be under the direction of the magistrate. In the towns no house can be sold without his permission, and in the country no land can be disposed of without his knowledge. Buying and selling is, in fact, regulated by laws, and under the direction of the magistrates. At every magistracy, and at every amt, a book is kept, in which every person who possesses landed property within the jurisdiction of the particular magistrate has a leaf to himself, in which his name is written, and his property described; or every person has his own separate book, which is deposited in the custody of the magistrate, and then the name of the person, where he resides, and a description of his property, are inscribed in his book. According to law, no mortgages on land, and no sales of fixed property are valid, unless they are mentioned either on the leaf or in the books. No person, therefore, can make either a mortgage or a sale without the knowledge of the magistrate, nor without inscribing it here. Before money is lent on mortgage, recourse is always had to these books, or to a certificate signed by the magistrate, of the amount of the incumbrances on the estate. It costs something either to inspect the books, or to procure the certificate. This practice may possibly prevent fraud, which publicity would do equally well, without the expence of feeing the magistrate; but it is another means by which the interference of the government is extended to every concern of individuals. These books are called mortgage books, Hypotheken Bücher, and they are often the subject of regulations and ordinances. Indeed, they are thought one of the most important and wisest parts of the civil policy of Germany.
The evils naturally resulting from such mixed institutions, and from such confused codes of laws as exist in Germany, are acknowledged to be very great; and it may be worth while to state, that our intelligent neighbours are making great progress in this arduous field of human inquiries. Austria, Prussia, and Bavaria, have each a new code both of civil and criminal laws; and, during the usurpation of the French, the code Napoleon was introduced into the kingdom of Westphalia. A whole code of laws, or rather five codes, making together a complete code both of laws and procedure, and written in a language that so many persons could read and understand, made a powerful impression on the Germans. Many of those who could compare it with the unintelligible, voluminous, and mixed laws of their own country, loudly demanded, when circumstances again restored Germany to its former governors, that one code for the whole of the country should be digested and introduced. Some wished for the code Napoleon, with such improvements as were necessary; others, that the most celebrated civilians of Germany should meet together in council, and frame a new code for their country. There arose, however, another party, composed, or at least led, by some of the most celebrated civilians themselves, who, after pointing out a great many errors in all the new codes, came to the conclusion, that there ought to be no codes of civil law.
This party was chiefly led by a Mr Savigny, professor of law in Berlin, whose work, entitled, Beruf unsere Zeit zur Gesetzgebung, written with a view of supporting the opinion, that there ought to be no written civil code, excited much attention; and by Mr Hugo, professor at Göttingen, who, in several papers in the Göttingesche gelehrte Anzeigen, supported the same side with much vigour and ingenuity. These gentlemen are two of the most celebrated professors of Germany, and it appears that their writings have had a considerable influence in checking the rage which did exist in Germany for making new and simple codes of laws.
I can give but a faint view of the principal arguments used by this party. They were, that the rights of the different classes of society were never stationary, and that the knowledge of these rights, or the science of right, Rechtswissenchaft, grew with the people themselves, and with their progress in civilization. That it was, therefore, wrong to make that a positive law to-day which an improvement in knowledge might hereafter shew to be unjust. That because the opinions of the people as to right were constantly changing, it was not possible for any written precepts constantly to express those opinions. That as the rights of men in society became more complicated, they required a particular study, and that the persons who made those rights their study, acquired more knowledge on the subject than other individuals, and they might be considered as the legal depositaries of the laws, the representatives of the opinions, and, in truth, the living codes of the society. Medicine and mathematics, they said, were constantly improving, and so was the science of right, and that it was equally absurd to make codes of medicine and mathematics as to make codes of rights or laws. That, as the former was left to the doctors, the latter should be left to the jurisconsults, who, constantly studying what was right, and constantly improving their decisions, were more to be relied on than codes of laws which only contain the legal knowledge of the age in which they were made. This was the main principle of their objections, and they supported their arguments by referring to the common law of England, which was rather decisions of judges than a written code. And also by referring to our acts of parliament, which were described to be decrees suitable to the knowledge of the times, and which constantly improved our laws.
They still further affirmed, that the code, if it were made by several civilians, would assuredly be unequal in its parts, if it were made by one alone, it would assuredly want wisdom, and would fail in giving satisfaction to all parties. They affirmed, that it was impossible men should make a perfect code of laws, and that, therefore, it was better the power of constantly amending the practice of law should remain in the hands of the civilians.
They were perfectly sensible of the great advantages which would result from one set of rules being followed throughout Germany; but they affirmed, that, owing to one system of teaching being followed in most of the universities, owing to the education of all the civilians being the same, to law books being common to the whole country, and owing to the great bases of laws being in all the different countries of Germany the same, this benefit was already in a great measure attained, and would be perfectly attained as the society increased in knowledge of what was right.
There is probably much truth in the arguments which apply to the unfitness of men to make codes of laws, and there is certainly much cunning, or much wisdom, in the civilians claiming, from their studies, a power of deciding on the rights of all men. They openly claim to be the depositaries of the legal knowledge, and the representatives of the opinions of society. The jurisconsults of Germany have long been the possessors of the Roman law, and according to it they have decided questions concerning the property of the Germans. They have studied the quibbles of this law, and with them they have perverted the sense of right among the people. They have been the legal priests, but most assuredly have never been the representatives of the people.
The chiefs of the opposite party were a Mr Thibaud, professor of civil law in the university at Heidelberg, and a Mr Feuerbach, who lives, I believe, at Munich, and was employed in making the code for Bavaria. The arguments they principally urged were the uncertainty of the present civil law, from being written in a language that was no longer in common use; that there was no perfect copy of all the Roman laws; and that criticism was unable to supply the defects: they pointed out the possibility of different professors interpreting these codes differently; they expatiated on the confusion which existed; and they enforced the fitness of the season, when all Germany was re-united, to form one code for the whole empire. They did not despair of making a code much better than any which at present exists, and they demanded one as the only security for the rights and property of individuals.
Without pretending to give an opinion on the great point here disputed, Whether a written code of civil laws is of itself good or bad, I may be permitted to remark, that the dispute itself is an evidence of the rapid improvement which the Germans are making. Such questions involve the best interests of society, and it can only be from fully discussing them, that these interests can be well protected. Accustomed as we are to hear it constantly held up as a matter of first necessity, that every society should be regulated by laws, our faith is somewhat staggered by the learned disputing on the utility of laws. For unwritten laws can only be considered as vague traditions, and somewhat like no laws at all. To dispute the utility of a written code is assuredly to dispute the utility of laws altogether. Yet this is now disputed by some of the most celebrated men in Germany.
Although many individuals who are not professional men have felt interested in this dispute, and although many a wish has been expressed for a new code; for the want of uniformity and simplicity in the present codes is what the great mass of the people complain of; yet I do not know an instance of any person taking part in it who was not a professional man. Unfortunately all such questions are decided by what are called learned men; by men intimately acquainted with the pandects and the institutes; by men accustomed to pry after quirks and detect trifling discrepancies, but who are not men of enlarged views, nor much acquainted with the business of life. They are too much educated not to be full of the prejudices of education; and there would be a greater certainty of improvement, if such questions as the one here mentioned were to be decided by men, and not by civilians.
[∗]See on this subject the masterly and unanswerable work of Jeremy Bentham, Esq., entitled, A Protest against Law Taxes.