§ 1. Not only the location of the Roman Empire but also very many of its laws have been changed, for the most part for the better; for different times of the ancients require different laws, as was said above concerning laws. In the year of Christ 1495 the Imperial Chamber Court, which was to judge in the Emperor’s sacred stead, was established at Worms. Thus the constitution provides. First, the Chamber Court is constituted with a Supreme Judge, who is to be an Ecclesiastical or Secular Prince, or a Count or Baron. Sixteen Judges are to be joined to him; they are afterwards also called Assessors. They are to be chosen from the German nation, from the Empire itself; half of them is to be learned and adorned with academic honors, and half from the Nobility, all furnished with upright and honorable morals and with knowledge. All causes are committed to their judgment; if the votes are equal, the opinion of the Supreme Judge possesses the prerogative. If it happens that the Judge is absent, he will establish in his place a Count or Baron from among the Judges, with the consent of the others.
New men are chosen in place of Assessors in an assembly of the Princes. In place of the Judge, a successor is given by the Emperor; and until the next Diet, if the Emperor is farther away, the Judges themselves appoint someone from among themselves to perform his functions until someone is appointed in the public assembly.
But for some time that tribunal ceased. For in the year 1500 it was restored again, and it was decreed that it should be held at Nuremberg. This too was decreed: that another Count or Baron should be joined to Count Bernard of Eberstein, so that there might be someone able to preside in causes of Princes when the Judge was absent or ill. At the same time it was provided that the opinion of eight Assessors and of the Judge should be valid. Indeed, this too was prudently added to avoid suspicions: that the Assessors should have no procurator, orator, or solicitor in their own home and that no Assessor should be in the company of such men.
So that there could be no complaint in the election, in the year 1507 the Emperor appointed two Assessors, each of the six Electors one, and the six Circles eight: so it was decreed at the Diet of Constance, at which new Assessors were also elected.
At Worms in the year 1521 Charles V added two to these, so that there were now eighteen Assessors. At the same time he also established a visitation every year. Other things were added in 1523. Then in 1527 abuses were removed. In 1532 the Reformation was confirmed and amended, and the order of visitation established. At the same time it was instituted that pronounced sentences should be examined and the Judges judged. The visitation of the year 1533 was especially famous; in it many abuses were corrected and many things excellently established. In the following years several difficulties then arose because of disagreements among the religions. The matter was treated in the year 1544, but, because the Estates disagreed, it again occupied the year 1546. In 1551 ten Extraordinary Assessors had by law been added for concluding old lawsuits; they were to judge for two years, or even three if the multitude of lawsuits required it. Their appointment was confirmed for another two years. In the year 1557 sixteen Extraordinary Assessors were again appointed.
In 1566 many grievances were removed; but because of the multitude of causes, in the same year another eighteen Ordinary Assessors were joined to the twenty-four Ordinary Assessors, so that there were forty-two in all. In the year 1570 another six new Assessors were added, and this for six years; the Emperor also decreed that another Count or Baron should be added, so that there were then forty-eight Assessors, not counting the Count.
No less a change in matters and in the manner of proceeding was made in that tribunal. For by individual Diets and visitations, through long experience and practice, the matter has now come to such a point that it seems nothing can be added, except that a multitude of the most ancient lawsuits remains undecided and the execution of judgments is impeded by the power of the parties. Against these difficulties many excellent provisions were made in the year 1600. And thus much concerning the Judicial Magistracy which is in Germany; in its judgments it uses edicts in the Emperor’s name and with his seal. If anyone also considers the offices, order, and laws of the Advocates, Procurators, and others, he will necessarily confess that in no kingdom was there ever so perfect a system of judgments. But, as I said, execution of judgments is suspended when powerful men are concerned.
§ 2. Yet this form of the Imperial Court and of its Assessors is not without an ancient precedent; indeed, not even the Greeks lacked it. Aristotle in book 2 of the Politics: λαμβάνουσι δὲ καὶ παρέδρους ὅ τε ἄρχων, καὶ πολέμαρχος δύο ἑκάτερος οὓς ἂν βούλωνται. “Both the Archon and the Polemarch also take Assessors, two each, whomever they wish.” The nation of the Getae, a very remote people of Barbarians, joined to its King a Counsellor and Assessor in judging, whom on account of his dignity they were accustomed to call θεόν, “god,” as Strabo testifies. Dio, in Augustus, calls them συνέδρους, fellow-sitters: Τὰ μὲν ἄλλα αὐτὸς μετὰ τῶν συνέδρων διεσκέψατο, καὶ ἐδίκαζεν ἐν τῷ παλατίῳ ἐπὶ βήματος προκαθήμενος. “Other matters he himself considered with the Assessors, and he judged in the Palace while seated in front upon a tribunal.” Tiberius was accustomed to join himself as a Counsellor to those judging; he sat beside the principal Judge, either indiscriminately among the others or opposite him. Hence, in celebrity of name and honor among posterity, Assessors surpassed even the Emperors themselves. Ulpian, Alexander’s Assessor, as Eutropius says in book 8, still holds the primacy in law. Marcus Scaevola gave law to nations by intellect and prudence, as Capitolinus relates. Commodus most prudently established on the advice of Pescennius Niger that those who had served as Assessors in provinces should administer in those same provinces. For formerly, although there were Assessors of Proconsuls and Legates, they did not readily succeed them.
Formerly πάρεδροι τοῖς νεωτέροις, “Assessors for the younger men,” were indeed given; but it was most excellently established that they should afterwards be given to all. They were selected from the most experienced and most approved Advocates. Cassiodorus gives the reason in epistle 12 of book 8: “It is fitting that those to whom power is entrusted should have most learned advisers. The field of Advocacy exercised you; the summit of our judgment chose you. Since you see yourself joined to the counsel of him who treats the secret of our Empire, hence we adorn you with the illustrious honor of Count of the Domestics.”
Yet it must not be denied that many things in the ancient Assessors were different from those now in use. For they received salaries from the Magistrates beside whom they sat. Code, book 1, title 51: “The labor of studies deserves that those who, established in public administrations, desire that sharers of their counsels be associated with them should summon by the hope of rewards and honor—and with knowledge itself as license—those whose prudence they think necessary to themselves, not by fearsome compulsion, a necessity unsuitable for liberty.”
Alexander, however, established salaries for them from public funds, frequently employing that golden saying: “Those men are to be promoted to the state who can administer the state by themselves, not through Assessors.” So Spartianus in Alexander Severus. Assessors could not subscribe petitions. For Constantine punishes with exile an Assessor who subscribes, chapter 1 of the title On Assessors. If they were able to unite anything by lawful and honorable gains, they can claim it even after the death of their father as though it were a military peculium.
The highest Jurisprudence was required in an Assessor. For this reason lack of prudence is imputed to the Assessor, not to the Magistrate beside whom he sits: law 2 of What Each Man.
§ 3. Among the Turks the system of judgments is swift and expeditious rather than consistently just. Their Supreme Priest, the Caldelescher, judges causes; they generally have as this man one grave in age and, according to the measure of Barbarism, knowledgeable in law. From him an appeal is granted to the Mufti, who also seeks the opinion of the Cadi in doubtful matters. But since they possess few laws, in most controversies they judge according to their own judgment and inclination. For in so enormous an Empire they rarely judge rightly. Nowhere is victory ready without gifts. At Thebes, indeed, they placed statues of Judges without hands, so that it might be shown that they ought to be strangers to receiving gifts; but Turkish Judges have hands in the purses of the litigants of every party, unless greater fear recalls them from crime. How much holier are the Roman laws, which have not only poor Judges and Magistrates but a wealthy state, as Salvian says in book 1 of On the Government of God. Cato would not permit even his servants to accept gifts from King Deiotarus. See also Commines, book 6, chapter 2, concerning those who receive largesses.
Hence there arises for a Prince the calamitous oppression of the poor—indeed, of the entire state. For those who afflict the poor possess such power, especially if they conspire, that they cannot be punished without a convulsion of the state. But if they escape for a time, deferred penalties are nevertheless portents of greater punishments, as Tzetzes rightly says upon Hesiod.
§ 4. Bellus, in Discourse 23, thinks that the public system of judgment in Britain is less rightly constituted: “It is not to be wondered at,” he says, “that they regard only the advantage of the Prince, while the good of the subjects seems abandoned, and that they are full of chicaneries and ambiguities and are contrary to themselves. For they were devised and sanctioned by the Normans, than whom no nation more litigious and more deceitful in devising and prolonging controversies can be found. These laws are inviolably and rigidly observed in those courts and are publicly lectured upon in the schools of London in the Norman language. In that language, until a few years ago, lawsuits were argued and all judicial acts and public instruments were written; and, what will seem strange, the degree of Doctor is conferred in that Faculty, just as in Italy and other states it is customary to confer the degree in Civil and Canon Law.
“If narrowness of time permitted, I could relate certain diversities and truly notable abuses which are frequent in the form of judgments, especially in those judgments which are called Inquests, in which great inconveniences follow in civil as well as criminal matters. This judgment consists of twelve men who are assembled by the Judge so that he may seek their opinion concerning the matter in controversy, and it is necessary that all agree; otherwise the Judge cannot proceed to sentence. But lest I occasion weariness, I pass over this entire argument, adding only that throughout the whole kingdom and in all consultations the royal will alone is regarded, since the Kings are absolute lords and Monarchs.
“Accordingly, lest they seem to be alone in governing—or because of idleness and greater convenience, or because of pride and pomp, after the fashion of the Turkish Empire—they have introduced a council of the chief officers and ministers. These men are assembled after the fashion of Pashas and follow the Prince everywhere; for this purpose they have both a table and their own lodging at court, a splendid household, and great dignity. They diminish the King’s labors, since most subjects and public ministers, and also the Ambassadors of Princes, have recourse to them. Thus they can be called the Prince’s ears and person, since throughout the whole kingdom they exercise power and command over the ministers, whom they treat with great authority, while the ministers in turn furnish obedience. In short, like the King, they themselves can command and decree whatever they please.
“Into a council of this kind, which is called the Royal Council, there are for the most part admitted three or four chief offices of the kingdom: that is, the Chancellor, Treasurer, the man whom they call the Brovizellus—Keeper of the Privy Seal—and the Admiral, besides the more eminent officers of the Court and Royal Household, such as the Steward, who is very like the Grand Master in France and the Mayor of the Palace at the Imperial court; all are for the most part Lords and noble and eminent men.”
§ 5. Amid so great a diversity of judgments and so slippery a condition of causes, the cities of Italy prefer to entrust their fortunes to foreign inquisitors rather than be tossed about among the partialities of Judges who are relations and kinsmen. Thus a court which they call the Rota is established among them. It consists of three Jurisconsults of great learning and a great reputation for integrity and justice, whose native country is fifty miles distant from the city in which they are placed over the administration of law. The first is called the Podestà; it is his office to deliver to the Council his written opinion concerning a citizen. The Council possesses the final decision and either approval or correction of the opinion. Concerning foreigners, however, that Jurisconsult alone decides. The second Jurisconsult investigates and judges crimes, just as formerly the Praetor who conducted the inquiry concerning assassins. The third is the examiner of civil causes. Yet each does not possess his function perpetually, but at an interval of six months they exchange duties among themselves.
Every other year the Genoese also hire Jurisconsults for civil causes who are foreigners and who pronounce law from the written laws in the Palace; they dwell with the Doge himself. But although foreign Judges are without the partialities of kinship, it is nevertheless hard for a state to distrust its own citizens and to be unable to maintain justice without external assistance. Nor would I approve this: to commit the causes of foreigners to a Judge to whom you are unwilling to entrust the lawsuits of citizens. Why can the Podestà not determine concerning a citizen except with the Council’s intervention and approval, while a foreigner, as a cheap life, has his life and fortunes liable to the judgment of one man? Yet law must be pronounced more swiftly and carefully for a foreigner, since his innocence has fewer aids of defense, while his offenses obtain neither intercessors nor ready pardon. Divine Mercy, by a special law, commends the care of strangers to all men.
§ 6. That it is most difficult to constitute and preserve tribunals rightly is taught even by this fact: not even among the Chinese, where the highest system of civil government is maintained according to the capacity of barbarians, could defects of judgments be avoided. “They lack many laws,” says the writer concerning China; “in pronouncing law they follow the opinion of their own mind. In their own Provinces they carry new laws as they please, and these for the most part are alien to the laws of others.” For one can conjecture even from this that this kingdom is not administered in the best manner: not everyone who has learned to write elegantly thereby possesses the prudence of a lawgiver. I pass over the fact that they often turn lawsuits to their own advantage, violate law, and seize what they can. Nothing is more frequent than gifts, nor is the sale of any man’s property so open as the sale of favor. Although the crime of one is not unknown to another, they nevertheless conceal it among themselves, since they are participants in the same offenses. But when they strive most to be hidden, they most betray themselves.
There is a great multitude of Mandarins in all cities, but an almost immeasurable one in the royal city of Peking. For, to pass over the Mandarins placed over war, who are not of high station, the number of the others here is greater than anywhere else. Besides those who continually frequent these cities on account of business, the permanent Mandarins of this city are more than two thousand five hundred. All these men daily give attention to counsellors and litigants. But how great the concourse of causes is, or what each man’s jurisdiction is, has not yet been sufficiently discovered by us.
Six of the chief Mandarins of the whole Kingdom dwell in this city; six, an equal number, preside over councils. The Supreme Mandarin is the man who either raises the Mandarins of the whole kingdom to higher Magistracies when they deserve it, or reduces them to the ranks and chastises them when they fail in their duty. On account of the amplitude of his power, the Chinese call him the Heavenly Mandarin. He reports to the King all the cases of men to be promoted to dignities or removed from them. The King so determines concerning each that even the least Mandarin of the whole Kingdom acknowledges his honor as received from the King. The second Mandarin has care of all rites, both human—such as those employed in all the King’s affairs, in the public address of a new King and designation of a Prince, and in the marriage of each—and divine, such as those employed in funerals and in the sacrifices which Kings customarily make to heaven and earth.
§ 7. Therefore the Prince will apply himself to this care all the more earnestly, the more difficult it is to preserve the integrity of Tribunals sound, whole, and inviolate. Yet when this is neglected, it brings about changes of kingdoms. For a kingdom is transferred from nation to nation because of injustice.
I also admonish Judges, not in my own words but in those of a Bishop—if not Augustine, nevertheless an ancient and wise man. Thus he says in sermon 35 To the Brothers in the Wilderness:
“Having been asked by you, O Judges, though wearied by a long disputation with Fortunatus, presbyter of the Manichaeans, we have not delayed, conquered by your affection, to deliver a sermon with God’s help. For behold, you are now assembled in the house of a Bishop; you have all come together as one, not to hear sophisms, not to understand the curiosities of Poets, not that I may proclaim you blessed, but only that you may hear what is necessary for your salvation and, hearing it, fulfill it in works. For you have been accounted by men leaders of the people, Judges of the earth, fathers of orphans, husbands of widows, zealots of justice, and lovers of the state. Beware, therefore, lest you be corrupted by hatred, love, payment, prayers, or fear.
“It is therefore fitting that Judges not only fulfill the things we have said, but with God’s aid tread down pride, abominate luxury, abhor falsehood, and despise avarice, which is said to be the stepmother and greatest enemy of justice. For she it is who knows no father, ignores her mother, loses her friends, and abandons herself. It is therefore fitting that Judges pursue not avarice but liberality, love little children, and show a serene countenance to the lowly and to orphans, not only in word but in deed. For they ought not avert their face from the poor, nor should a superior disdain to preserve the faithful, nor ought they lift their neck in despising certain persons, knowing that the learned and the unlearned die alike.
“It is fitting, therefore, that Judges preserve with a solicitous mind the grace which they have divinely received, display fidelity, and preserve zeal for rectitude. It is also fitting that Judges be cultivators of clemency, detesters of cruelty, kind to all, slow to anger, swift to mercy, steadfast in adversity, humble and cautious in prosperity; and, to whatever dignities they have been raised, that they recognize themselves and take care lest they despise their inferiors. It is also fitting that Judges be wise and most learned in the law, lest, as men ignorant of the holy law, they be able to call good evil and evil good. It is also fitting that Judges fear God more than other men, care more for the salvation of souls than of the body, and love the honor of God more than full purses.
“But woe to you, O Judges, woe to you for eternity and beyond, because there is in you no truth, no mercy, no piety, no justice, nor can knowledge of God be found in you. For what reigns among you? Avarice, falsehood, clamor, outward show, perversion of the sacred law, calling evil good and good evil. Behold the acceptance of persons. For truth is not in you; truths have been diminished by you. O fathers of the poor—O truly not fathers, but plunderers! Why are you not fathers? Because everywhere the poor are oppressed through you, and there is no one to have mercy upon God’s little ones. But if a rich man has spoken, immediately you have fallen silent; you have carried his causes even to the clouds.
“O Judges, lovers of the knowledge and justice of the world, attend to what you do. For you are full of the knowledge of the world, and in that knowledge you will die. What is the knowledge of the world except to gather treasure, acquire earthly profit, deceive one’s neighbor, lie, swear, carefully pervert justice, and do similar things in all affairs? For this is the wisdom of this world. In these things nearly the whole of your life, as it were, consists. Therefore attend, you who judge the earth, because the wisdom of this world is foolishness before God.
“But you say: ‘O Bishop, we do not approve this opinion. We do not commit theft; we do not deceive or offend our neighbor.’ Why? ‘Because we receive nothing except as much as he was willing to give us.’ But I say to you that you have done as much as you were able to do. No more was given to you; therefore you received no more. You have done as much as you could. You have made small causes great. For although you did not seize by force and did not rob your neighbor on the road, you can nevertheless be robbers. For a robber fears evil; where he cannot act, he does not, and nevertheless he is a robber. For God questions the heart, not the hand.
“A wolf often comes to the sheepfold and seeks to seize the sheep, seeks to tear them, seeks to devour them. The Shepherds nevertheless keep watch, the dogs bark, and thus the wolf flees in fear. Do we therefore say that he is not a wolf? Far from it. Thus you too do as much as you can; if you could do more, you would do more.
“Come then, O Judges: attend, lest you be confounded with the false Judges of Susanna. For the Lord will awaken the spirit of Daniel and place the spirit and wisdom of his boy Daniel in the mind of some young man; and, just as he did in the case of Susanna’s Judges, he will confound all false witnesses together with the Judges. Then they will know how their knowledge profited them.
“Consider, therefore, O Judges of the earth, what God speaks through Hosea his servant. For he says: ‘I shall visit my people and the Judges, and I shall repay to them their ways and their thoughts.’ O how dreadful it is to fall into the hands of the Lord! O how great the vengeance! O how great the misery there will be for the wicked on the last day! For wicked merchants and false Judges will be expelled from the house of the Lord; they will be banished from the house of God, expelled from paradise, and will go into the place where there will always be weeping and gnashing of teeth.
“Therefore attend to my counsel; open the doors of your heart. Arise, you who have slept; read Isaiah the Prophet and follow him—not tomorrow, but today; not only today, but even now. For the Prophet says: ‘Let the impious man forsake his way, and the unjust man his thoughts, and let him return to the Lord, and he will have mercy upon him, because he is merciful.’ Run, Judges, to the Father of mercy, lest you be judged. Seek pardon; restore what you have received unlawfully. Seek pardon, because he is near to all who call upon him in truth. He it is who heals the contrite of heart and the humble in spirit, and will save those troubled in heart.
“Walk while you have the light, while it is day. Behold, O Judges, the night will come soon, because death now comes, in which it will not be lawful to walk. Consider what you are and where you are going. For your dead parents preach; the grave cries out; hell howls; demons await; Priests preach: ‘Why are earth and ashes proud?’ O Judge who has not acknowledged God, when you pass beside the tombs of your fathers, know that the dead cry out: ‘You are earth, and into earth you shall go.’ They were men just as we are, possessing riches. Where they are now, so shall we be. Where is their pride? Where their knowledge? Where their magisterial chair? Where the honor of disciples? Where the garments adorned with silk and fur? O ash and dust! O Judge, consider what you are and what you will be.
“Do not, therefore, delay to be converted to God, and do not defer from day to day. For suddenly his anger comes, because the day of perdition is near; it is necessary that it come, and the times hasten. Yet let none of you despair; let no one distrust God’s mercy. But attend, because no fault is so great that it has no pardon. And lest anyone despair, take as an example Mary that sinner, mistress of luxury, mother of vainglory, sister of Martha and Lazarus, who afterwards merited to be called the Apostle of the Apostles. May that same God and man who deigned to be born and to die for us assist us. Amen.”
If Judges revolved these and things consonant with them in a mindful mind by night and by day, there would be fewer lawsuits, fewer complaints among those above, and fewer torments among those below.