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Encyclopaedia Britannica, 11th Edition, Volume 11, Slice 8 "Germany" to "Gibson, William"

And in the Prussian province of Hesse


Legal reform.

The great achievement of the first period was legal reform. In nothing else was legislation so much needed. Forty-six districts have been enumerated, each of which enjoyed a separate legal system, and the boundaries of these districts seldom coincided with the frontiers of the states. Everywhere the original source of law was the old German common law, but in each district it had been wholly or partly superseded by codes, text-books and statutes to a great extent founded on the principles of the Roman civil law. Owing to the political divisions, however, this legislation, which reached back to the 14th century, had always been carried out by local authorities. There had never been any effective legislation applicable to the whole nation. There was not a state, not the smallest principality, in which some authoritative but imperfect law or code had not been published. Every free city, even an imperial village, had its own "law," and these exist down to the present time. In Bremen the foundation of the civil code was still the statutes of 1433; in Munich, those of 1347. Most of the states by which these laws had been published had long ago ceased to exist; probably in every case their boundaries had changed, but the laws remained valid (except in those cases in which they had been expressly repealed) for the whole of the district for which they had been originally promulgated. Let us take a particular case. In 1591 a special code

was published for the upper county of Katzellenbogen. More than a hundred years ago Katzellenbogen was divided between the neighbouring states. But till the end of the 19th century this code still retained its validity for those villages in Hesse, and in the Prussian province of Hesse, which in old days had been parts of Katzellenbogen. The law, however, had to be interpreted so as to take into consideration later legislation by the kingdom of Westphalia, the electorate of Hesse, and any other state (and they are several) in which for a short time some of these villages might have been incorporated.

In addition to these earlier imperfect laws, three great codes have been published, by which a complete system was applied to a large district: the Prussian Code of 1794, the Austrian Code of 1811 and the Code Napoleon, which applied to all Germany left of the Rhine; for neither Prussia, nor Bavaria, nor Hesse had ever ventured to interfere with the French law. In Prussia therefore the older provinces came under the Prussian Code, the Rhine provinces had French law, the newly annexed provinces had endless variety, and in part of Pomerania considerable elements of Swedish law still remained, a relic of the long Swedish occupation. On the other hand, some districts to which the Prussian Code applied no longer belonged to the kingdom of Prussia--for instance, Anspach and Bayreuth, which are now in Bavaria. In other parts of Bavaria in the same way Austrian law still ran, because they had been Austrian in 1811. In two states only was there a more or less uniform system: in Baden, which had adopted a German translation of the Code Napoleon; and in Saxony, which had its own code, published in 1865. In criminal law and procedure there was an equal variety. In one district was trial by jury in an open court; in another the old procedure by written pleadings before a judge. In many districts, especially in Mecklenburg and some of the Prussian provinces, the old feudal jurisdiction of the manorial courts survived.

The constant changes in the law made by current legislation in the different states really only added to the confusion, and though imperial laws on these points with which the central government was qualified to deal superseded the state laws, it is obvious that to pass occasional acts on isolated points would have been only to introduce a further element of complication. It was therefore convenient, so far as was possible, to allow the existing system to continue until a full and complete code dealing with the whole of one department of law could be agreed upon, and thus a uniform system (superseding all older legislation) be adopted. Legislation, therefore, has generally taken the form of a series of elaborate codes, each of which aims at scientific completeness, and further alterations have been made by amendments in the original code. The whole work has been similar in character to the codification of French law under Napoleon; in most matters the variety of the older system has ceased, and the law of the empire is now comprised in a limited number of codes.


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