492 



COURTS OF JUSTICE. 



that sometimes important cases were referred to a 

 higher ami more experienced tribunal (the high 

 court) ; and, after the territorial jurisdiction of the 

 feudal lords had become better settled, a denial of 

 justice in a lower court could be remedied by car- 

 rying the complaint to the court of the feudal su- 

 perior ; and, when the judges of the lower courts 

 had decided wrongfully, they were personally respon- 

 sible to the higher court, where right and wrong 

 u. iv oft en decided by an appeal to God in single com- 

 bat. But, even after regular courts of appeal had 

 been established, from the lowest rank up to the 

 imperial, royal, &c., tribunal, and the ancient tribu- 

 nals which succeeded the prince's court (aw/a princi- 

 palis) had attained a fixed seat and permanent judges 

 (in England, by Magna CAarta, 1215, in France, 

 1305, and in Germany, 1495), there were still cases 

 in which the lower courts might be accused of ob- 

 vious injustice in their decisions, and attempts were 

 made to procure their abolition, and the higher au- 

 thorities were very ready to avail themselves of the 

 opportunity. An excellent work on the history of 

 this relation between the executive (conseil prive) and 

 the judicial power in France is that of Henrion de 

 Pansey, entitled De PAutorite Judiciare en France 

 (On the JudicialAuthority inFrance) Paris, 1818, 4to. 

 This mixture of the executive and judicial authori- 

 ties in France, which had become an object of uni- 

 versal detestation on account of the egregious abuses 

 to which it led (such as infringement upon the power 

 of the judicature by means of commissions, by the 

 cassation of legal decisions, by lettrea de cachet), was 

 abolished by the institution of the court of cassation, 

 (q. v.) By this means, the gradations of tribunals 

 were reduced to two ; and the number of district 

 courts (tribunaux de premiere instance) and the high 

 courts (cours d'appel) was diminished. In Germany, 

 probably to the advantage of the country, the ancient 

 number of three gradations, proceeding from the 

 baronial or municipal, the princely and the royal 

 tribunals, has been retained. (See Appeal, Courts 

 of.) For a general history of the constitution of 

 courts, we are indebted to a celebrated jurist, of the 

 Jewish religion, J. D. Meyer Esprit, Origine et 

 Progres des Institutions Judiciaires des principaux 

 Pays d' 'Europe, published in 1819 1822, 6 volumes. 

 The subject, however, is by no means exhausted. 

 The secret courts of Westphalia, in Germany, are 

 unique, and have never yet received a full explana- 

 tion, notwithstanding the labours of learned lawyers, 

 such as Kopp, Eichhorn,and \Vigand. It might be 

 made a question, whether their establishment, which 

 is dated in the 13th century, had not some connexion 

 with that of the inquisition, founded about the same 

 time. 



As it is an object of high importance to fix the 

 limits of the judicial power, with respect to the exe- 

 cutive and legislative, it is equally important to as- 

 certain those limits with respect to the law of nations. 

 In this, too, there is a great confusion, both in theory 

 and practice, which it is highly important to settle by 

 particular treaties between nations. While it re- 

 mains, it not only throws obstacles in the way of in- 

 tercourse between different states, but also tends to 

 destroy the confidence of the subjects in the justice 

 of rulers by the striking inconsistencies which it pre- 

 sents. 



France, as far as we are informed, is the only state 

 which extends its jurisdiction to every country ; and 

 permits its citizens to bring foreigners before a 

 French tribunal, although they have neither residence 

 nor property in the realm ; and no delay of trial takes 

 place in lavour of a foreigner, residing hi his own 

 country, if accused before a French tribunal by a citi- 

 sen of France. (Code civil, art. 14.) This course is 



the more dangerous for foreigners, as it is possible 

 for them to be summoned before the court, and con- 

 demned, without the slightest knowledge of wiiat is 

 going on. The summons is delivered to the state at- 

 torney, to be sent to the minister. of foreign afliiirs, 

 who transmits it through the diplomatic authorities to 

 the accused. If the summons is delayed or miscar- 

 ried (examples of which are known to liave taken 

 place) the trial still goes on ; and the proceedings of 

 the court, and the sentence it passes, lose nothing of 

 their validity. If the stranger comes to France, or 

 has property t here , he may be immediately arrested 

 and imprisoned, though a Frenchman could not be. 

 (Law of Sept. 10, 1807.) The double injustice of this 

 system appears from the fact, that the French do not 

 acknowledge the jurisdiction of foreign tribunals in 

 the case of their own countrymen, even though this 

 be based on the universal principles of right. It is, 

 therefore, very desirable Uiat all governments should 

 protect their subjects by strictly maintaining the law, 

 that no one shall be accused except before his proper 

 judges. This universal rule has been acknowledged 

 by France only in relation to Switzerland, by various 

 treaties, old and new, and, finally, by that of Sept. 

 27, 1803. 



With this subject is connected the authority allow- 

 ed to the decisions of the courts of foreign coiuitries. 

 The imperial constitution in Germany, under which 

 all the states considered themselves as members of 

 one whole, accustomed them to regard foreign ju- 

 dicial decisions, in private causes, as binding ; and 

 the tribunals were held bound to carry into effect 

 such decisions whenever required to do so. The 

 same custom prevails in England as to chattels, but 

 in regard to real estate, no foreign jurisdiction is ac- 

 knowledged. In France, since 1629, the decisions 

 of foreign courts have had no force. If a judicial 

 process is carried on against a French citizen, it is 

 required to be reviewed before a French court, at 

 least as to its most essential features, unless the 

 French party chooses to go over the whole again 

 from the beginning (comme entier) ; and, if both par- 

 ties are foreigners, a petition for the attachment of 

 the property of the debtor, in France, is never grant- 

 ed. (Sirey's Journal de la Cour de Cassation, viii., 

 453, and xviii. 58.) Similar laws were established 

 in the kingdom of Westphalia and some of the Ger- 

 man states ; for example, Bavaria began to refuse all 

 authority to the decisions of foreign courts ; but it 

 soon became evident that such a system would intro- 

 duce great confusion, as there was so lively an inter- 

 course between the different German states, and the 

 old rules were in a great measure restored. (A de- 

 cree of the Bavarian government, dated June 2, 1811, 

 gives authority to the decisions of foreign courts, hi 

 civil causes, only when no property can be found on 

 which to levy execution in the state where the suit 

 has been carried on, and where no equal or superior 

 claims exist to the property of the debtor in Bavaria. 

 This system, however, is by no means free from ob- 

 jection.) As the relations of the German states, as 

 members of the empire, have ceased, and the uncon- 

 ditional admission of the validity of the decisions oi 

 foreign courts would be attended with many disad- 

 vantages, it is highly desirable tliat a uniform rule 

 on this subject should be introduced throughout the 

 German confederacy. 



The authority to be given to sentences of foreign 

 courts, in criminal cases is a subject of great delica- 

 cy, and involves the difficult question, how far states 

 are required to deliver up accused persons who have 

 fled to them for protection. The law of nations, on 

 this point, is nearly uniform. The substance of it is, 

 that, in criminal cases, one country has nothing to do 

 with the sentences of another, either, for or against 



