Papers Relating to the Foreign Relations of the United States, Transmitted to Congress, With the Annual Message of the President, December 4, 1882
Mr. Sargent to Mr. Frelinguysen.
Berlin, October 2, 1882. (Received October 19.)
Sir: At my request, the second secretary of legation, Mr. Chapman Coleman, has prepared a report upon the organization of the courts of law in Germany, which I have the honor to inclose.
This report is very complete, and great pains have been taken by its author to insure its accuracy. I doubt not it will be of permanent value to the files of the Department; and, if published, will be of use to the legal profession, as furnishing a means of comparison between the diverse judicial systems of the United States and of the State governments, many of which are in continual process of change. While this report shows some curious features of legal administration, it may also be found that the German system of courts as herein shown contains some valuable and suggestive peculiarities.
The report is founded not only upon information derived from eminent German lawyers and judges, but also on that obtained by a conscientious examination of the laws relating to the subject, a task for which Mr. Coleman is exceptionally well qualified.
I have, &c.,
Mr. Coleman to Mr. Sargent.
Berlin, September 30, 1882.
Sir: I have the honor to submit herewith, pursuant to your request, a report upon the organization of the courts of law in Germany.[Page 175]
This report is based upon the law of January 27, 1877, organizing the courts of the Empire. This law is the first of a series of four laws, enacted in the months of January and February, 1877, known collectively as the judicial laws, and consisting of the law above referred to, of the code of civil procedure, of that of criminal procedure, and of the bankruptcy code. The codes enumerated and other laws will be treated of in this report only in so far as references in the law under consideration constitute portions of them a part of that law. The entire body of the judicial laws, with the introductory enactments, and those carrying them into effect, constitute a mass of material quite too voluminous and complex for the scope of this report. Other portions of those laws, and especially the code of civil procedure, greatly merit the attention of foreign students, and might perhaps, hereafter, be advantageously made the subject of further reports.
At as early a date as May, 1870, the re-established German Empire could boast of the accomplishment of unification in the penal code; and a codification of civil laws for the empire has long been under preparation in the hands of the most eminent jurists of the country, and will, in a few years, have been completed, and a result have been attained that may well be regarded as grand, in view of the diversity of systems pre-existing in the various states constituting the present empire, and also in view of the youth of the empire.
I am assured by Baron von Diepenbroick Grüter, a judge of high authority, until recently a member of the court of supreme jurisdiction in this kingdom, and a gentleman to whom I am indebted for many valuable suggestions bearing upon the subject of this report, that most marked benefits have already resulted from this unification, in the avoidance of interstate conflicts of law-evils sufficiently to be deplored in our own country, arising out of the divers systems. Salutary results had also ensued from new features, from improvements, embodied in the new system, into which a new spirit seemed to have been infused since unification.
Trusting the foregoing introductory remarks upon the German judicial laws in general may not have been inappropriate in connection with this report, I shall hereinafter confine myself to the discussion of the organization of the German courts, of the regular, ordinary machinery for the administration of justice in this country.
There is a number of other courts provided for by imperial legislation—courts of peculiar, limited jurisdiction—which will receive no further consideration here. I shall, however, in a final chapter, endeavor to present the leading features of a system of arbitration provided for by the code of civil procedure, for the purpose of compromising contentions, and thereby avoiding recourse to the courts of law.
I have, &c.,
Second Secretary of Legation.
Qualifications necessary for, and appointments to, judicial offices.
the first examination.
Candidates for judicial offices must pass two examinations. Three years’ study of jurisprudence at an university, one half of this period at a German university, must precede the first examination, which, in Prussia, takes place before one of six specified superior land courts. The examination is verbal and in writing. Its subjects are the principles of public and private law, as well as those which underlie statesmanship. The examination must show the positive knowledge of the candidate, his insight into the nature and historical development of legal relations, as also whether he has acquired for his future avocation the requisite general knowledge of law and state craft. In case of failure the examination may be repeated once, after an interval of at least six months. This examination passed, the candidate acquires the right to the title of “referendarius,” which is conferred upon him by the president of that superior land court to which he applies for employment and before whom he takes the oath of office.
Between the first and second examinations an interval of four years must elapse, which period is employed in service with the courts and with attorneys-at-law, and may be spent in part with a state attorney. The occupation furnished the referendarius during this period of preparation is such that he acquires in all the branches of business that appertains to the office of a judge, of a state attorney, of a lawyer and notary, that insight and practical skill which are requisite for the administration of those offices. The referendarius may perform the functions of a court clerk. After having been engaged for at least two years in preparatory service, in case of need, he may be assigned, by the department of justice, to the temporary conduct of judicial business. The amts-judge, to whom superintendence over his preparatory work has been [Page 176] confided, may also, under like conditions, intrust to him the management of particular judicial affairs, and he may also be intrusted with the business of the amts-attorney. A referendarius is not qualified to perform certain important acts. In particular is he incompetent to pronounce judgment. He may, however, be empowered to act as substitute for an attorney-at-law temporarily prevented from fulfilling a professional duty.
THE SECOND EXAMINATION.
After the expiration of the preparatory period of four years, the referendarius is admitted to the second—the great state examination—if it appear from the testimonials as to his employment that he may be regarded as qualified for the ordeal. In Prussia this examination takes place before the judiciary examination committee, at Berlin, appointed for such purpose for the entire kingdom. This second examination, as in the case of the first, must be of an essentially practical character. Its end is to ascertain whether the candidate has acquired a thorough knowledge of the law, common, public, and private, which obtains in the country, and whether he may be regarded as qualified to assume with success an independent position in the judicial service.
In case of failure this examination may be repeated, once only however, after an interval of at least nine months.
This second examination passed, the referendarius receives from the minister of justice the title of court assessor, and is then qualified to become a judge. Appointments to vacancies in judicial offices (in the amts-courts) are made from a list of assessors arranged according to the date of the acquisition of the title. The assessor has not long to wait for an appointment if he announces himself, as the phrase goes, “at disposal,” that is to say, announces his willingness to assume the duties of an amts-judge at any place. Pending an appointment as judge the assessor is assigned for unsalaried employment to an amts or land court. A transference can only take place with his consent. He is, however, obliged, upon the direction of the minister of justice, to assume temporarily the duties of an amts-judge, of an assistant judge, or of an assistant in the office of a states attorney, returning after the performance of such duty to that court or state attorney’s office to which he was before assigned.
It is here remarked that the office of judge is never elective in Germany, and that appointments to the bench are made only as above stated.
Principles underlying the German organization of courts.
Proceedings in the courts, inclusive of the rendering of decisions and judgments, except in certain exceptional cases defined by law, are public. Upon the presiding judge of the court, and upon an individual judge performing without the court an official act, devolves the duty of maintaining order. The court may adopt measures of compulsion (proceedings for contempt) against the parties, the accused, witnesses, experts, or against other persons not participating in the proceedings, who refuse to obey commands given to that end; and may cause their removal and incarceration for a period not exceeding twenty-four hours. Without detriment to subsequent criminal prosecution, the court may also impose upon the persons of the categories referred to in case of offensive behavior, a fine not exceeding 100 marks or incarceration not exceeding three days, which penalties may be immediately enforced.
An official dress, consisting of a black robe, white necktie, and black barett is prescribed for judges, state attorneys, and clerks in public sessions, and also for attorneys appearing before public sessions of the land and superior land courts. The language of the court is German, interpreters being employed in case of need. Only when present in the number prescribed by law are judges competent to render decisions, which are given by an absolute majority, except in criminal matters, when a majority of two-thirds is requisite for the adoption of any decision adverse to the accused and affecting the question of guilt.
During court vacation, which begins on the 15th of July and ends on the 15th of September following, terms must be held and decisions rendered in criminal and other pressing matters defined by law.
Subdivision of the court system and jurisdiction in general.
Ordinary contentious jurisdiction is exercised by the amts (office) land and superior land courts, and by the supreme court of the empire. All civil litigation and criminal matters, except such as by imperial legislation are assigned to the cognizance [Page 177] of administrative authorities or tribunals, or to exceptional courts, are subject to the jurisdiction of the ordinary courts of law.
The courts are state courts. All private jurisdiction is abolished. In its stead the jurisdiction of that state of the confederation in which it existed is exercised. All patronage connected with appointments to office in courts is abolished. The exercise of spiritual jurisdiction in secular affairs is not admitted, this provision having particular application to the marriage relation.
The jurisdiction of the German courts does not extend to the chiefs and members of foreign missions accredited to the German Empire. If those persons are citizens of one of the states of the confederation they are exempt from internal jurisdiction in so far only as the state to which they belong shall have renounced jurisdiction over them.
The chiefs and members of missions accredited to one of the confederated states are not subject to the jurisdiction of such state, nor are members of the families, or the business personnel, or such servants as are not Germans of the persons mentioned in this and the next preceding paragraph.
Consuls appointed in the German Empire are subject to internal jurisdiction in so far as exemption therefrom is not agreed upon in treaties entered into by the empire with other powers.
As regards Prussia, the location and territorial jurisdiction of the superior land and land courts are under the provisions of imperial legislation, fixed by Prussian law; and those of the amts courts by royal decree. Once established, the latter can, however, only be changed by law. Within the kingdom there are thus established 13 superior land courts and 1,090 amts courts. At one and the same place, and at Berlin only, are there two land courts. For each province of Prussia there is a superior land court. For East Prussia, at Konigsberg; for West Prussia, at Marienwerder; for Brandenburg, at Berlin; for Pomerania, at Stettin; for Posen, at Posen; for Silesia, at Breslau; for Saxony (the Saxon province of Prussia), at Naumburg; for Schleswig-Holstein, at Kiel; for Hanover, at Celle; for Westphalia, at Hamm; for the Rhine province, at Cologne. In the province of Hesse-Nassau alone are there two, at Cassel and at Frankfort-on-the-Main. The provincial superior land court at Berlin has the peculiar designation of chamber-court (kammer gericht).
In the amts courts schöffen courts are constituted. In the land courts jury courts are periodically constituted, and also chambers for commercial matters. (These organizations within the respective courts will be discussed later on under the titles of the particular courts.) The supreme court of the empire has its seat at Leipzig.
The amts courts.
The amts courts are presided over by a single judge. When several judges are attached to an amts court the judicial administration of the particular state assigns to one of their number the general supervision. Every judge disposes of the business devolving upon the court as a single judge.
A.—Civil jurisdiction of the court.
The subjects of the jurisdiction of the amts court in civil litigation, with the exception of particular matters assigned to the land courts irrespective of the value of the object, are the following:
- Litigation concerning property rights where the object is of a value in money, or the equivalent of money, not exceeding 300 marks.
- Without regard to the value of the object, contentions between landlords and tenants concerning the letting, using, and relinquishment of dwellings and other places, as well as concerning the retention by the landlord of articles brought into the same by the tenant. Contentions between master and servant, between employers and employés, concerning their respective engagements; also certain contentions particularly designated in the industrial laws concerning the relations subsisting between proprietors and hands in industrial establishments.
Litigations between travelers and hosts as to bills for entertainment and concerning the hire of vehicles between travelers and drivers, or between the former and boatmen, arising out of ferriage, or between forwarders of emigrants and travelers at ports of embarkation concerning their passage and the transportation of their property, and to loss of, or damage to, such property, and contentions between travelers and artisans arising out of the journey, such as relates to defects in cattle and to injury done to game; claims arising out of crim. con; the procedure in the publication of bans.
The jurisdiction of the amts courts in civil cases also extends to the declaration of [Page 178] the attainment of their majority by minors, and the reversal of such act; to the issue of warrants of arrest, and, in urgent cases, to the issue of a variety of orders having merely temporary application; also to bankruptcy matters.
B.—Competency of amts courts in matters not litigious.
The amts courts are competent in matters not litigious to conduct registries of commercial persons, firms, and associations; in matters relating to guardianship; further, unconditionally in all matters relating to inheritances, including the issue of certificates of heirship; in matters appertaining to the management of beneficial institutions, with the proviso, however, that the ministry of justice of the particular state may intrust the same to the land or superior land court. The amts court also grants dispensations from the prohibition of marriage to women before the expiration of the tenth month after the termination of their former marriage. The care of the duplicate lists of births, deaths, marriages, &c, is also intrusted to these courts.
C.—Jurisdiction of the amts judge for particular acts.
Upon the amts court judges, as such, devolve a number of particular acts, especially in preliminary proceedings. The more prominent ones are the issue of the warrant of arrest before public indictment, the first examination of the prisoner, the exercise of judicial inquisition in preparatory proceedings, and the disposal of applications for assignment of counsel. Further, the conduct of a preliminary examination may, under certain circumstances, be assigned to amts courts judge by resolution of the land court or by the supreme court of the empire (in penal matters in which the latter court has jurisdiction in the first and last instance); also, the execution of penal sentences and judgments imposed and rendered in the first instance by the amts court organized as a schöffen court.
For the trial of certain criminal cases schöffen courts are formed at the amts courts. This court consists of the amts judge, who presides, and of two laymen.
“Schöffen,” in the singular number “schöffe,” is a word hardly susceptible of translation, and I shall designate the court thus compounded by the German name.
The schöffen are laymen called upon to decide, in conjunction with a person learned in the law; a judge. Since 1848 the codes of criminal procedure of certain German states had confided to the decision of similar tribunals minor criminal cases before then assigned to public authorities or to single judges. Such tribunals have been in particular applauded by opponents of the jury system, who have gone so far as to advocate the assignment to them, in a modified and enlarged form, of the gravest criminal cases. By the law under consideration it will be observed that no larger scope than cognizance of police ordinances and of a number of minor offences has been awarded to them.
The law declares that the office of the laymen, who, in conjunction with the amts judge, constitute the schöffen court, is one of honor, that shall be exercised only by a German. Conviction for crime and certain other disabilities constitute disqualifications for the office. Certain categories of persons are declared ineligible owing to their position, and others are permitted to decline to assume such duty on ground defined by law. A so-called original list, renewed from year to year and containing the names of those persons who are qualified and required to perform this service, is furnished by the chief magistrate of the community to the amts judges; is by them revised, and then submitted to a committee composed of trustworthy citizens and a state administrative officer, which is presided over by the amts judge, in order that an annual list for each business year may be made out, the number of schöffen necessary for each amts courts having been first fixed by the department of justice of the particular state. The days for regular sessions of the schöffen courts are settled in advance for the entire year, and the days on which individuals shall participate are determined by lot. Like jurymen, schöffen are sworn before assuming their judicial office, and are reimbursed for traveling expenses. The essential differences between schöffen and the bench of jurors consists in the fact that the schöffen and the judge constitute a collective (colleagual) body, which the jury and judge do not. The schöffen court passes upon the law and the fact, the jury upon the fact only. While the decisions of the former can be appealed from, appeal is inadmissible in all other criminal judgments.
The following are some of the categories of persons disqualified for the office of schöffe: Persons who have not attained their thirtieth year at the time the original list is made out; persons who at that time have not resided two full years in the community; persons who for themselves or their families receive alms from public funds, [Page 179] or have during the past three years received such; persons not suitable on account of physical or mental defects; servants.
The following classes are not called upon for such service: Ministers of state; members of the senates of the free Hanse cities; those officials of the empire who are at all times subject to temporary retirement; state officials who, by the laws of the particular states, are subject to such retirement; judicial officers and state-attorneys and other officials in the offices of the latter; officials who execute judicial arid police process; servants of the church; teachers in public schools; military persons belonging to the active army and navy.
The following persons are permitted to decline the performance of such service: Members of any German legislative body; individuals who, during the last business year, have performed jury or schöffen duty on at least five days; physicians; apothecaries who have no assistants; persons who have attained their sixty fifth year at the time the original list is made out, or would attain it before the conclusion of the business year; persons who succeed in making it appear credible that they cannot sustain the expenditure attendant upon the exercise of the office.
The jurisdiction of the schöffen courts embraces the following offenses:
1. All contraventions (Uebertretung) punishable with confinement of from one day to six weeks.
2. Those misdemeanors punishable with imprisonment not exceeding three months, or with fine not exceeding 600 marks. These penalties may be adjudged separately or together, or conjointly with the penalty of confinement, or together in conjunction with confiscation.
The words misdemeanor, confinement, and confiscation have, in the above connection, a special technical meaning, and call for definition: Misdemeanor, “vergehen,” is an act for which the maximum penalty is imprisonment in a fortress, not exceeding five years; confinement, “haft,” is imprisonment of from one day to six weeks; and by confiscation, “enizichung,” the confiscation of the thing used or meant to be used in the commission of a crime or misdemeanor, is intended.
Certain misdemeanors specially assigned to the land courts and stated later on, are excepted.
3. Prosecutions for insults and bodily injuries, in which prosecution ensues only upon complaint of the aggrieved party.
4. The misdemeanor of theft of personal property, the value of which does not exceed 25 marks.
5. The embezzlement by a person of the property of another, in his possession or care, when the value of the property does not exceed 25 marks.
6. The commission of fraud, the damage not exceeding 25 marks, by a person, who in the pursuit of unlawful gain for himself or for a third person, inflicts loss upon another by suggesting or supporting an error, by false representation or by misstatement, or by suppression of true facts.
7. Intentional or unlawful injury to, or destruction of, an article belonging to another, the damage not exceeding 25 marks.
8. Certain acts of an accomplice after the fact, in particular cases designated in the penal code, provided the act to which the offenses refer comes under the jurisdiction of the schöffen courts.
Finally, the schöffen courts dispose of the criminal matters assigned to them for trial and decison by the penal chambers of the land courts at the opening of the trial, upon motion of the state’s attorney. In so far as the schöffen courts have not already jurisdiction upon other grounds, such assignment may take place in the following misdemeanors, the circumstances justifying the assumption that no other or greater penalty than that designated under figure 2, above, could be adjudged and no higher fine than 600 marks could be imposed:
- Resistance to state authority mentioned in certain paragraphs of the penal code.
- Breach of arrest, or grand breach of “house peace” (Haus freidensbruch, wrongful entry of, or refusal upon competent command to retire from dwellings, places of business, and inclosed spaces intended for the dispatch of public business, under circumstances of aggravation, punishable with imprisonment up to one year.)
- Causing public offense by immoral acts.
- Insults and bodily injury in cases in which prosecution takes place only upon complaint of the injured party.
- Dangerous bodily injury (by means of a weapon, and in particular of a knife).
- Simple theft.
- Simple embezzlement.
- The case of an accomplice after the act.
- The same where the accomplice derives personal profit.
- Simple fraud.
- Criminal appropriation of property by removal of articles in anticipation of execution.
- Simple injury to property and injury to public monuments.
- Intentional breaches of quarantine regulations for the prevention of the introduction or spread of infectious or contagious diseases, or of pests affecting cattle, in cases in which a human being or cattle are not attacked by the diseases or pest.
- Those misdemeanors which are punishable with imprisonment not exceeding six months or fine not exceeding 1,500 marks, alone or together, or conjointly with confiscation.
- Certain cases of contravention of provisions of law concerning the levying of public dues, in which the penalty consists in the exaction from the offender of a multiple amount of the dues.
The schöffen, or laymen of the schöffen courts, exercise in the trial the office of judges in the fullest scope, and with the same vote as the amts judges, participating also in all decisions in the course of the trial not connected with the rendering of judgment, and which can be given without previous verbal discussion.
Without the co-operation of the schöffen the amts courts may adjudge in penal cases only, the state’s attorney assenting, when the accused brought to the bar in a prosecution for misdemeanors confesses the act with which he is charged.
A.—Organization of the same.
The land courts are composed of a president and the necessary number of “directors” and members. Within these courts civil and penal chambers and jury courts must be, and commercial chambers may be, formed if deemed requisite. According to need a number of judges of inquisition (examining judges) are appointed for them by the department of justice of the particular state. The president presides in the plenum, and the president and directors in the chambers, the president deciding before the commencement of the business year to which chamber he will attach himself. The latter and the directors decide by a majority of votes who shall preside in the remaining chambers, the president giving the casting vote in case of a tie. The president, the directors, and the oldest members constitute the presidential college. Before the commencement of the business year, and for the period of its duration, the presidential college distributes business among chambers of the same kind, and appoints the standing members of the individual chambers, as well as their standing substitutes.
A quorum in the chambers, competent for decisions, consists of three members, inclusive of the presiding judge. For trial purposes the penal chambers must, as a court of appeals in “contraventions,” consist of five, and in prosecutions upon private motion, of three members. In case the regular presiding judge is hindered the oldest member of the chamber takes his place, and in case a regular substitute of a member is hindered the president appoints a temporary representative. If it be found impossible to substitute for one member another of the same court, the representative is appointed from another court by the department of justice of the particular State, upon motion of the president of the court, and such appointment is irrevocable during the period for which it is made, and until the necessity has ceased to exist. The compensation is to be fixed in advance for the entire period. The judges of the amts courts are required to assume the representation in particular sessions, and for particular affairs, of a judge of the land court in which district they hold appointments. The department of justice of the particular State may, on the ground of the remoteness of the seat of the land court, direct that a penal chamber be formed and attached to an amts court, for the district or districts of one or more amts courts. The membership of such chamber consists of land or of amts court judges of the district, and to such tribunal may be assigned the full jurisdiction of the penal chamber of the land court, or a part thereof. Such penal chambers have in Prussia been attached to 35 amts courts.
For the trial of penal cases jury courts are periodically constituted in the land courts. For the decision of the question of guilt, they must consist of three judicial members, inclusive of the presiding judge, and of twelve jurors. The decisions in jury court trials are rendered by the judicial members of the court, and in case the court be not in session, by the penal chambers of the land courts. The presiding judge of the jury court is appointed for the term by the president of the superior land court from the membership of the latter court or that of the land courts belonging to the district of such superior land court.
The substitute of the presiding judge and the remaining judges are appointed by the president of the land court from the membership of the same.
The office of juror is an office of honor to be exercised by a German only. The qualifications are the same as for the schöffen. No one is required to serve both as juror [Page 181] and schöffe during the same business year. The president of the land court determines the number of jurors requisite for each court, as also their distribution among the various districts of the amts courts. A committee, constituted for the purpose in amts court, selects annually from the original list of schöffen the persons proposed as jurors (the triple number assigned to the amts court district) and makes out a roll. At a public session of the land court, in which five members, inclusive of the president and directors, participate, the number of jurors destined for the jury court are selected from the proposed roll and placed in separate annual lists. From the annual list the president of the land court in open session, in which, in addition to the president two members take part, constitutes by lot the special roll of jurymen for the particular trial term. The formation of the jury for the particular case is a part of the trial. Jurors not appearing for duty are subject to the same penalties as schöffen in like cases. The penal chamber of the land court may direct that particular jury court sessions be held at some place other than the seat of the land court.
These courts for the trial of commercial cases are constituted in close analogy to the schöffen courts hereinbefore described. The commercial court is composed of an element learned in the law, of the judge, and of business men, and passes upon both fact and law. Elsewhere than in Germany, so far as I have read, no court exists of which a controlling element is composed of laymen experts in the matter to be considered; though certain tribunals in England constituted for particular commercial interests, such as the courts of admiralty and bankruptcy, may be regarded as some-what similar institutions, while in our own country juries of experts are sometimes called upon to decide upon questions of fact, although not upon the law.
The department of justice of the particular state may, if it think proper, cause the formation of chambers for commercial cases at the seat of the land courts for their respective districts, or elsewhere within those districts, for designated parts of the same. To the jurisdiction of the chambers for commercial matters, in case their jurisdiction is invoked by one of the parties, belongs that civil litigation in which the land courts have original jurisdiction, in which the complainant seeks the enforcement of the following claims:
- Claims against a merchant arising out of transactions which on the part of both litigants are commercial transactions.
- Claims arising out of commercial paper (bills, notes, &c).
- Claims arising out of certain legal relations, such as the mutual relations among members of a commercial association or partnership; questions concerning the use of the firm name; those which relate to protection of trade-marks, samples, and models; questions concerning maritime law, &c.
The commercial chambers organized for trial consist of a member of the land court, who presides, and of two commercial judges, who have respectively the same right of vote. The presiding judge may also be a member of an amts court, if the seat of the commercial chamber is not identical with that of the land court. In matters having reference to the owner or master of a ship and the ship’s crew, the presiding judge is competent to decide alone.
The office of a commercial judge is an office of honor, for which a German only is qualified who is or has been duly registered as a merchant, or as the head of a stock company, or who, at a sea-port, belongs to the number of those persons familiar with navigation. He must have completed his thirtieth year, must be a resident of the district of the commercial chamber. All the rights and duties of a judicial officer devolve upon him during his official term. Commercial judges are appointed by the executive of the particular state upon motion of the chamber of commerce, for the period of three years, and a reappointment is permissible.
Commercial chambers are established at present in Prussia in twenty-seven places—six of this number at places other than the seats of the land courts. At Berlin there are eight, at Breslau and Cologne four each; and at all other places one only. The number of commercial judges is so distributed that two or four are assigned to each chamber. A like number of substitutes are appointed. The presiding judge is designated by the president of the land court for the period of the business year.
D.—Jurisdiction of the land courts.
The jurisdiction of these courts will be considered under the three heads of civil matters and matters not litigious.
a. jurisdiction in civil matters.
The jurisdiction of the land courts in civil matters comprehends all civil litigation which is not assigned to the amts courts. They have, without regard to the value of the object, exclusive jurisdiction in the following important matters:[Page 182]
In all claims against the imperial treasury arising out of a certain law (of March 31, 1873) concerning the legal relations of officials of the empire, and in all claims against those officials for undue exercise of official authority, or for violation of duty or the remission of official acts. The civil chambers are also the courts of appeal and “objection” from decisions and rulings in the amts courts in civil cases. Objection (bescheverde) is an appeal from a ruling or decision in an intermediate matter.
Finally, devolves upon the land court, in case it is the court of the next resort, the duty of determining what court shall be competent, in the event of the hindrance of the court otherwise competent, or of uncertainty as to the jurisdiction with reference to locality; or the duty of establishing a common jurisdiction, if deemed requisite, or of deciding position or negative questions of competency among two or more courts.
b. jurisdiction in penal matters.
The judge of inquisition is competent to institute and conduct the preliminary examination.
The penal chambers are competent to pronounce those decisions concerning the preliminary examination and its results which are to be rendered by the court, pursuant to the provisions of the imperial code of penal procedure, to decide upon exceptions taken to measures of the judge of inquisition and the aimts judge, and to pass upon decisions of the schöffen courts. They also dispose of certain business affairs assigned to them by the penal code above referred to.
The penal chambers are further competent to adjudge as courts of the first instance in the following cases:
- Upon misdemeanors which do not come under the jurisdiction of the scöhffen courts.
- Upon those crimes which are punishable with penal servitude, not exceeding five years alone, or in conjunction with other penalties.
- Upon the crimes of persons who, at the time of the criminal act, have not completed their 18th year.
- Upon the crime mentioned in § 176, No. 3 of the penal code (immoral conduct with persons under fourteen years of age).
- Upon grand larceny and petty larceny committed in the third instance.
- Upon the crimes of receiving and concealing stolen property acquired by wrongful act of another, in the cases of habitual commission, and commission in the third instance.
- Upon the crime of fraud committed in the third instance.
The penal chambers have exclusive jurisdiction in a number of infractions of provisions of particular imperial laws. These are the following: The law of October 25, 1867, concerning the nationality of merchant vessels; the law of June 11, 1870, concerning stock companies; the law of February 6,1875, concerning public registration; the bank law of March 14, 1875.
The penal chambers have jurisdiction as courts of the second instance to decide questions of law in the schöffen courts.
The jury courts, finally, have jurisdiction over the crimes which do not come under the competency of the penal chambers of the land courts or of the supreme court of the empire.
Superior land courts.
The superior land courts are constituted with a president and the requisite number of presidents of senates and judges (the latter are called councilors). “Within these courts, civil and penal, senates are formed. The distribution of business, the appointment of the members of the senates, and of substitutes takes place in accordance with the provisions applying to the chambers of the land courts hereinbefore stated. The “presidential college” in the superior land courts consists of the president, of the presidents of the senates, and of the two oldest members. Only regularly appointed judges may, in case of need, be summoned from other courts for service in the superior land courts. The senates of the superior land courts are competent to render decisions when five members, inclusive of the presiding judge, are present.
A. The superior land courts have jurisdiction in civil litigations—
- To decide upon appeal from final decisions of the land courts.
- To decide upon “objection,” to decisions of the land courts.
Finally, devolves upon the superior land court, if it be the court of the next resort, the duty of determining what court shall be competent in the event of the hindrance of the court otherwise competent; or of uncertainty as to the jurisdiction with reference to locality or the duty of establishing a common jurisdiction, if deemed requisite; or of deciding positive or negative questions of competency among two or more courts.[Page 183]
B. The superior courts have jurisdiction in penal cases—
- To revise judgments upon appeal of the penal chambers of the land courts (revision is based only upon a violation of law).
- To revise judgments in the first instance of those penal chambers, in case the revision is based exclusively upon the violation of a provision of law.
- To decide upon “objections” to judicial penal decisions in the first instance, in so far as the penal chambers are not competent; and against decisions upon “objection,” and upon appeal from the penal chambers.
Upon the superior land court devolves also the duty to assign the investigation and decision of a case to another land court of its district in case the proper land court is hindered; and, further, to pass upon motions arising out of the refusals by state attorneys to prosecute.
Supreme Court of the Empire.
The supreme court of the empire consists of a president, of seven presidents of senates, and of sixty judges (called councillors), who must have attained their thirty-fifth year and be qualified for the judicial office in one of the states of the confederation. They are appointed by the Emperor upon the motion of the senate (Bundes rath) of the empire. If a member has been condemned to a penalty for a dishonorable act, or to deprivation of liberty for a longer period than one year, he may, by plenary resolution of the supreme court, be declared to have forfeited his salary; and in case he has been placed on trial for a crime or misdemeanor, the court may, by such resolution, pronounce his temporary deposition from office. Incarceration upon examination suspends ipso facto his functions. Temporary deposition does not affect salary. In case of permanent incapacity arising from physical or mental infirmity, the member is retired with a pension.
In the imperial court, civil and penal senates are constituted, which are competent to decide when seven members, inclusive of the presiding judge, are present. The number of the senates is determined by the chancellor of the empire. At present there are five civil and three penal senates. For the purpose of plenary decisions and the decisions of several senates acting in conjunction, the presence of at least two-thirds of all members, inclusive of the presiding judge, is requisite. The number of members must be an odd one; otherwise the member youngest in service has no vote. The distribution of business among the senates, the appointment of the members of the individual senates and of substitutes, are as in the land courts. The “presidential college” consists of the president, the presidents of senates, and of the four oldest members; at present the college has a membership of thirteen. The cooperation of assistant judges (judges of other courts) is inadmissible.
A. The imperial court has jurisdiction in civil litigation—
- To revise final judgment upon appeal of the superior land courts.
- To decide upon “objections” to decisions of the superior land courts.
Upon this court devolves further, in case it is the court of next resort, the duty of determining which court shall have jurisdiction in case of the hinderance of the court otherwise competent; or in case of uncertainty as to the jurisdiction of a particular locality; and also to establish a common jurisdiction, and to decide positive or negative questions of competency among two or more courts.
B. The supreme court has jurisdiction in criminal matters, as follows:
- As the court of first and last resort to try and decide cases of high treason and treason to the country, in so far as the crimes are directed against the Emperor or the empire. Upon the first penal senate devolves in these cases the duty of rendering such decisions relating to the examination and its results as are required of the court, by the provisions of the code of penal procedure. Trials are conducted before the united second and third penal senates. The judge of inquisition is appointed for each penal case from among the members of the court, by the president, who may also appoint any member of another German court as judge of inquisition or as a substitute to perform a part of the business of such judge.
- Also to revise original judgments of the penal chambers, in so far as the revision is based exclusively upon the violation of a law of a particular state, and to revise judgments of the jury courts. Also in case a superior land court is hindered, the duty of assigning the examination and decision of a matter to another such court.
C. Consular jurisdiction.—The supreme court has jurisdiction in civil and penal matters upon “objection” or appeal against decisions of a consul or consular court; the civil jurisdiction is conditioned upon the value of the object of contention exceeding 300 marks; it has also jurisdiction in certain matters not litigious under the provisions of the imperial law of 1879 concerning consular jurisdiction.
D. Patent matters.—Finally, the supreme court has jurisdiction upon appeal against decisions of the patent office with reference to withdrawing a patent or declaring it invalid.[Page 184]
It is remarked in conclusion that if a civil senate of the supreme court is disposed to depart from an earlier decision of another civil senate or of the united civil senates, upon a question of law, it must submit such question to the latter for decision. This submission must be to the united civil senates, in case a penal senate is disposed to depart from an earlier decision of a penal senate or the united penal senates.
The conduct of business of the imperial court is regulated by rules which are prepared by the plenum and require the confirmation of the German Senate.
The state attorneyship is represented in every court; in the supreme court by a superior imperial attorney and by one or several imperial attorneys; in the superior land courts, the land courts, and the jury courts, by one or several state attorneys, whose competency shall, however, extend to the preparation for public prosecution of such penal cases as belong to the jurisdiction of others than the schöffen courts.
If the state be represented in a court by several officials, all persons associated with the chief official act as his representatives; while acting for him they are entitled to perform all his offical functions without being required to show any special authority. The first officials of the state attorneyship attached to the superior land courts are entitled to perform at all the courts of their district the functions of state attorney or to assign the performance of such functions to another than the official primarily competent.
The state attorney is in the exercise of his official functions independent of the court. State attorneys do not transact judicial business, nor is any supervision over judges intrusted to them. The presiding judge of the court may, however, in matters which allow of no delay, appoint a substitute to perform a state attorney’s functions, in case the latter is hindered. All officers of the court, inclusive of the judges, are required to assume the duties of a substitute in case of necessity.
The local jurisdiction of state attorney officials is co-extensive with that of the court to which they are attached. The subjects of their jurisdiction are mainly penal matters.
Upon the state attorney devolves the duty of instituting the public prosecution upon which judicial investigation is based. In so far as no other course is prescribed by law the state attorney must, when the facts warrant, prosecute for all acts judicially punishable. In but few instances is his exclusive right to prosecute limited by the code of criminal procedure.
The carrying of sentences into effect in all cases except those in which the schöffen courts have decided as courts of the first instance, devolves upon the states attorney of the land court; he further decides as to the suspension and interruption of punishment.
In civil litigation, and in matters not litigious, the state attorney is only called upon to act in some few matters connected with divorce and wardship, and other subjects designated by the civil code of procedure and other laws.
The first officials of the state attorneyship attached to the superior land courts have the official title “superior state attorneys”; the first, attached to the land courts, the official title “first state attorneys”; all other officials of the state attorneyship attached to superior land and land courts, the official title “state attorneys.”
The superior imperial attorneys and the imperial attorneys are appointed by the Emperor upon the motion of the German Senate, In Prussia the superior state and state attorneys are appointed by the King. The superior imperial attorney, the superior state attorneys, and the state attorneys are not judicial officials, although only such persons as are qualified for the judicial office are eligible; they are therefore governed, as regards discipline, liability to be transferred, &c., by the principles which obtain for other state officials.
There are some peculiarities connected with the organization of the state attorney offices attached to the amts courts. The appointment of amts attorneys is subject to revocation, and no qualifications for such appointments are prescribed. The business of such office may, by the department of justice of the particular state, be intrusted to a state attorney, or to a court assessor, or to a referendarius, in so far as judicial business of a penal nature may not at the same time have been confided to him. In case this authority is not exercised, the appointment is made by the superior state attorney.
Under the provisions of the code of civil procedure parties who have the legal capacity, and who desire to adjust a disputed claim without recourse to law, may agree that it be referred to one or more arbiters for decision. In case the agreement does [Page 185] not provide for the manner of appointing the arbiters, each party is entitled to appoint one. Women, minors, the deaf and dumb, and persons who have forfeited civil rights of honor may be rejected. The arbiters must hear the parties, and, in so far as it appears to be necessary, investigate the facts upon which the dispute is based. The procedure is regulated in the absence of any agreement by the parties, according to the discretion of the arbiters, who may examine such witnesses and experts as voluntarily appear before them. The arbiters are, however, not competent to swear witnesses, experts, or the parties. If, in their opinion, it becomes necessary to administer an oath, such function is, upon motion of one of the parties, performed by the appropriate regular court, if it deem such course admissible. In case the tribunals consist of several arbiters, the decision is by absolute majority of votes, the agreement of the parties making no other provision. The judgment must bear the date on which it was rendered, be subscribed by the arbiters, served on the parties, and deposited with proof of such service in the office of the appropriate court of law. Such judgment has, as between the parties, the effect of a legal judicial judgment.
This judgment can, however, only be enforced after its sufficiency has upon motion of one of the parties, been pronounced by a court of law. The judgment of the arbiters can only be contested upon legal grounds, within the period of a month, before the court of law.
The following are the principal grounds upon which a motion that the judgment be annulled may be based:
Upon the ground that the procedure was inadmissible, or that the performance of an illicit act by one of the parties has been adjudged, or that the party was not represented at the proceedings according to law, in so far as such party has not, by express or implied assent, waived the right to make such plea; or that a rightful hearing has not been accorded the party; or that the judgment is not accompanied by a statement of the grounds upon which it was rendered.
The judgment may also be contested upon an allegation of fraud by a party or by an arbiter.
In case no particular amts or land court is named in the agreement of the parties, the amts or land court having the ordinary jurisdiction over the claim is competent for all proceedings subsequent to the decision of the tribunal of arbitration.
The arbitration heretofore considered is entirely voluntary. In Prussia a system of arbitration, or reconciliation, as it is sometimes termed, is established by law, which, in certain matters; is of a different character. Under this system a party to a dispute in civil matters, other than in tort, may, in order to prevent litigation, cause the other party to be summoned to appear with him before a certain arbiter, upon whom the duty devolves of adjusting the claim, if it be possible, The proceedings before this official are much the same as those before the arbitration tribunals herinebefore discussed.
The arbiter is required to enter in a journal the results of the attempts made before him to adjust claims. If a compromise is effected its terms are enforceable at law.
In those matters in tort, in which prosecution for bodily injuries or injuries to character ensues only upon the complaint of the aggrieved party, an unsuccessful attempt to compromise the difficulty before the arbiter must precede prosecution. Proceedings for divorce can only be instituted upon the production of proof that an ineffectual attempt at reconciliation has been made before the pastor of the parties, if they have one, or otherwise before an arbiter. The arbiters, 211 of whom officiate in Berlin alone, are appointed for particular districts by communal representative bodies, and their appointment requires the confirmation of the presidential college of the appropriate land court. Arbiters receive no salaries, and there are no charges made in these tribunals except for copying and actual disbursements. They relieve the courts of law of a vast burden, and their great usefulness from many points of view is generally acknowledged.
The circumstance may be mentioned that the principle of arbitration is honored in a higher and very different sphere in Germany. The Constitution of the German Empire provides, in Article 76, that conflicts among the various States of the Confederation, in so far as they are not of a private nature, are to be disposed of by the Federal Council (“Bundesrath”) of the empire, when its action is invoked by a State, and also that the Federal Council shall, when called upon to do so, amicably adjust conflicts concerning a constitution in those states in which the constitution designates no authority for the settlement of such conflicts.
Pay and Pensions.
The salaries of judicial officers and other officials attached to the courts are paid by the individual states in which these courts are situated, and vary in amount. In Prussia these salaries are as follows:
Presidents of courts receive, inclusive of a commutation for official dwellings, and [Page 186] according to the supposed expensiveness of the city in which the court is situated, amounts varying from 15,800 to 17,000 marks ($1=4⅕ marks). It is remarked that the same basis of compensation is applied to all officials mentioned under this head.
Presidents of senates receive from 7,500 to 8,700, and other judges receive from 4,800 to 5,700 marks. The superior state attorneys attached to the courts receive from 7,500 to 8,700, and the state attorneys from 2,400 to 3,600 marks.
In the land and amts courts, the president of the land court No. 1, in Berlin (there are two land courts in that city), receives 10,500, and the presidents of all other land courts from 7,500 to 8,700 marks. Land court directors receive from 4,800 to 5,700, and other judges of these courts from 2,400 to 4,200 marks. The first state attorney attached to the land court No. 1, in Berlin, receives 7,500, and the state attorneys attached to all other land courts, from 2,400 to 2,800 marks.
In the supreme court of the empire: The president of this court receives a salary of 27,000 marks; the presidents of senates receive from 15,000 to 16,000, and other judges of the court 12,000 marks. The superior imperial attorney receives 14,000 and other imperial attorneys 12,000 marks.
Every official of the empire, and every Prussian official is entitled to a pension for life who after at least ten years’ service, becomes permanently incapacitated for the performance of official duty through bodily disease or bodily or mental weakness. If this incapacity is the consequence of disease, wound, or other injury acquired or received by the official in the performance of his duty, or if, without fault of his own, the incapacity arises therefrom, he becomes entitled to a pension after a shorter period of service. The amount of pension is, after the performance of the tenth year of service, twenty-eightieths of his latest salary, and increases with every additional year of service by one-eightieth until sixty-eightieths or three-fourths of the salary, which is the highest pension paid, is reached.