COURTS OF JUSTICE. 



491 



article, including all which precedes the extended 

 account of the courts of England, is taken from the 

 German Conversations Lexicon, and was, of course, 

 written by a German lawyer.] The essence of the 

 judicial power Consists in deciding according to 

 existing law, and the facts of the case which have 

 been brought before the court. The judge must 

 follow scrupulously the existing laws, whether they 

 agree with his own convictions or not. Every 

 departure from them involves an overstepping of his 

 own power, and an infringement upon tliat of the 

 legislative body. Every decision, resting on a devia- 

 tion from existing law, is invalid ; and the purpose 

 of correcting such deviations gave rise to the court 

 of cassation in France, and to the writs of error in 

 England. Still it cannot be denied, that a system of 

 law is developed far better by the higher courts 

 than by express acts of the legislature ; and the 

 Roman, the most complete of all systems of law, is 

 indebted for its perfection to this very circumstance, 

 that its extension and improvement, with the excep- 

 tion of a few applications of the legislative power, 

 were effected principally by the pretors or chief 

 judges. (See civil Law.) So also the English com- 

 mon law lias been built up principally by the 

 courts, who are guided mostly by precedents which 

 their predecessors on the bench have established. 

 The ancient French courts (parliaments and other 

 cours souveraines) exercised a similar power. They 

 decided contested points of law by arrets regle- 

 mentaires, which were binding also upon the occur- 

 rence of similar cases ; but, when the courts were 

 reorganized, in 1790, not only was this privilege 

 denied them (Code Napol., art. 5), but they were 

 not even permitted to apply the universal principles 

 of right to cases not provided for by express law. 

 On the contrary, they were obliged to refer such 

 cases to the national assembly. These questions, 

 liowever, soon multiplied to such a degree, that the 

 right of deciding according to general principles and 

 the analogy of previous cases, was restored to the 

 courts, and they were even menaced with punishment, 

 if they refused to make such decisions, under the 

 pretence that the laws were obscure. (Code Napol., 

 art. 4.) A similar course has been pursued in 

 Prussia ; and it will forever be the duty of courts, in 

 the explanation and application of the laws, to take 

 for their guidance those higher and eternal princi- 

 ples of right which are the same in all ages and 

 nations ; not, indeed, making them take the place 

 of positive law, but explaining the positive laws 

 with reference to them. Many peculiarities, 

 in ancient and modem constitutions of govern- 

 ment, are explained, when we reflect that every 

 command (imperium) is, in itself, distinct from 

 the judicial power (jurisdictio). The courts in 

 Germany are clothed with the power of carrying 

 into effect their own decisions; but this was not 

 always so, nor is it now the case in other countries. 

 In all civil processes in England, the original writ is 

 first issued from the chancery of the kingdom, except 

 in trifling cases, where the sum in dispute is less 

 than forty shillings. The original writ is put into 

 the hands of the sheriff, and contains an order to 

 hold the defendant to do what the plaintiff requires 

 of him, or to show cause to the court why he should 

 not (an order styled in Britain apreecipe, in Germany 

 a mandatum cum clausula) ; or without giving the 

 defendant such a choice, the writ orders the sheriff 

 absolutely to bring him before a court of justice as 

 soon as the plaintiff gives security for prosecuting his 

 suit (this order is called a pone, or sitefecerit secur- 

 vm). The various writs receive names from the 

 initial Latin words, as all the judicial proceedings in 

 the English courts were in Latin till 1730. The 



case is somewhat similar in France, where the 

 officers of the court (huissiers) execute the first 

 summons, like the officers of government, without 

 receiving a commission from the court. Sentences, 

 in criminal cases, are executed in France solely by 

 the advocates of the crown, and not by the judges ; 

 in England, by the sheriffs of the counties. The 

 judicial power should not be accused of a defective 

 organization, because the courts have no power to 

 execute their sentences. The constitution must pro- 

 vide for such an execution ; but, strictly speaking, 

 the judicial power has completed its duty in deciding 

 between right and wrong. The sentence of a court 

 of justice can never affect the person of a sovereign 

 prince, and, even in regard to his immovable pro- 

 perty, there are difficulties in the way of its execu- 

 tion. The remedy of the English nation, in this 

 case, is stated in the article England. In Germany, 

 executions could formerly be obtained against the 

 princes in the imperial courts, and they were to be 

 carried into effect by the circles of the empire ; but, 

 with the dissolution of the imperial constitution, this 

 power has ceased. The German confederation can 

 carry into effect, against the states composing it, its 

 own decrees, and the decisions of the court appointed 

 to arbitrate between different states (the Austragal 

 Instanz), but cannot take cognizance of the com- 

 plaints of a private individual against a sovereign 

 power, whether the one to which he is himself sub- 

 ject, or that of another state. 



The above distinction between the proper busi- 

 ness of courts, to decide on what is right in particular 

 cases, and the powers of the executive in regard to 

 the administration of justice, often appears in the 

 organization of courts, and the officers of government 

 concerned in the administration of justice. In the 

 first place, this is observable in cases where the 

 object is not so much to settle contested points, as to 

 carry into effect the undisputed claims of one party 

 on another, or to settle temporarily the relations of 

 the parties (as, for instance, in regard to the posses- 

 sion of certain property), with a view to a final 

 decision of their rights at a future time. Acknow- 

 ledgments of their debt made before a public officer, 

 and containing an order for their execution in the 

 name of the government (guaranda, or guaran- 

 tigia, resembling the French notarial documents), 

 and, in general, all indubitable claims, were not 

 anciently esteemed subjects of judicial examination, 

 in a proper sense, in Germany ; and this view of the 

 subject is one of the sources of the participation of 

 the executive in the administration of justice in that 

 country. Another arises from the ordinances >f 

 the Italian cities. In the second place, the duties 

 of the higher branches of the ministry of justict. 

 are founded on the same distinction. Nothing 

 belonging properly to legal decisions falls within 

 the department of a minister of justice.* His 

 duty is to provide that the tribunals are properly fill- 

 ed, and that they perform their duties. He issues 

 mandates enjoining them to administer justice (man- 

 data de promovenda justitia). He hears complaints 

 respecting the delay or nonperformance of justice ; 

 but, in case of a wrong decision, on the part of the 

 court, the minister has no right to alter it. To ob- 

 tain this object, appeal must be made to higher 

 courts. The establishment of these courts of appeal 

 was an important improvement in the civil constitu- 

 tions of Germany. These various gradations of 

 courts were unknown to that country in the middle 

 ages. The decision of every court was final, except 



