Imatges de pągina

are, perhaps, as fairly entitled as the comites to be considered the root of the subsequent counts. The German title Graf corresponds to the title count in other countries of Europe. From the instructions given to these Grafen, which Marcalf has preserved, it is evident that they superintended the administration of justice, the police, and the taxes. After the time of the Carlovingian dynasty, the office and name remained, but different classes of counts or Grafen were formed; thus Pfalzgrafen, or comites palatii, the judges of the court, who decided whether a case should be brought before the king; Markgrafen, counts of the frontiers; Holzgrafen, counts of the forests, that is, inspectors, &c. These royal officers soon usurped power which did not belong to them, and treated the people so badly, that the emperors and kings were obliged to go themselves into the provinces, and hold courts, or to send particular officers for this purpose, called Sendgrafen. The capitularies of Charlemagne contain very precise instructions to these officers, on the subject of their duties. The sheriffs in England were originally the deputies of the English counts or earls, who correspond to the German Grafen. Their Latin title is still vicecomes. Their English title, derived from shire and gerefa, has the same origin with the German Graf. (See Sheriff.) In the German empire, the power of the counts increased with the progress of the nation, whilst the imperial government became weaker and weaker. They even began to transmit their titles to their children, as did also the dukes, and other officers, in those times of unpunished usurpation. In the 12th century, the division of counties, on the continent of Europe, was abolished, and thus the counts lost their jurisdiction, except on their own possessions. In point of rank, the English earls are considered as corresponding to the continental counts. (See Earl.)

COUNTERGUARDS, in fortification, are small ramparts with parapets and ditches, to cover some part of the body of a place. They are of several shapes, and differently situated. They are generally made before the bastion, in order to cover the opposite flanks from being seen from the covertway, and, in this case, consist of two faces, making a salient angle parallel to the faces of the bastion. They are sometimes made before the ravelins. The cost of building them is more than proportionate to their value, especially when they are small, and without cannon, in which case, particularly, they are called couvrefaces.

COUNTERMARK, in numismatics (from counter and mark). Antiquaries call by this name those stamps or impressions which are found on ancient coins or medals, and have been given since their first impress in the mint. These countermarks or stamps are often executed without any care, and frequently obliterate the most interesting portion of the original inscription. Thus they correspond with the codices rescripti. In performing this operation, the new mark was stamped upon the coin with a heavy blow of a mallet upon a punch, on which was engraved the countermark, of a round, oval, er square shape. The use of countermarks appears to have been first adopted by the Greeks, but it is impossible to say at what period of their history. Upon the Greek coins so altered, the countermarks are generally figures, accompanied by inscriptions. Those of Rome seldom contain any thing more than inscriptions and monograms. There have been various opinions respecting the cause of these countermarks; some antiquaries thinking that they were to indicate an augmentation of the value of the money upon which they were stamped; others, that they were vouchers for workmen; and, again, that they were only struck upon money taken or received from foreign enemies. Jobert, Millin, De Boze, Bimard, Mabudel, Pelleim, Florez, and other antiquaries, have exercised their conjectural skill on this subject. During the long war with revolutionary France, England stamped millions of Spanish dollars with small, oval countermarks of the head of George III upon the neck of the Spanish monarch. Many of them were completely restamped or countermarked in the mint, and both impressions were sometimes visible, the English head and reverse not completely destroying the Spanish head, armorial bearings and inscriptions.

COUNTERPOINT signifies, in music, a part or parts added to a given melody. In ancient times, musical sounds were represented by certain letters of the alphabet. A great improvement was made on the old system by the celebrated Guido d'Arezzo, who substituted points or dots in the place of letters. The simple harmony of that period consisted of notes equal in length, and the term contrapunctus, or counterpoint, was applied to it in consequence of the points by which it was represented being placed under, or, as it were, against each other, on the staff. By counterpoint, we understand, therefore, the several parts which compose musical

harmony; and the science of counterpoint consists in a knowledge of the rules according to which those parts must be constructed. On this account, the term is frequently used for musical composition in general. When the notes employed are of equal length, the counterpoint is called simple. When notes of various length are used, the counterpoint is said to be figurate or florid.

COUNTERPROOF, in engraving; an impression taken from a newly-printed proof of a copperplate, for the purpose of a closer investigation of the state of the plate, as the proof is, in every respect, the reverse of the plate, while the counterproof has every thing the same way.

COUNTER-REMONSTRANTS (Contraremonstranten). (See Remonstrants, and Gomarists, under the article of Reformed Church.) COUNTERSCARP, in fortification, is properly the slope or talus of the exterior side of a ditch, towards the field. The inner slope, on the side towards the place, is called escarpe. Sometimes the covert way and glacis are termed counterscarp.

COUNTY; originally, the district or territory under the jurisdiction of a count or earl; now, a circuit, or particular portion of a state or kingdom, separated from the rest of the territory, for certain purposes, in the administration of justice. It is called also a shire. (See Shire.) Each county has its sheriff and its court, with other officers employed in the administration of justice, and the execution of the laws. In England, there are 52 counties, and in each is a lord-lieutenant, who has command of the militia. The several states of America are divided by law into counties, in each of which is a county court of inferior jurisdiction; and, in each, the supreme court of the state holds stated sessions.-County palatine, in England, is a county distinguished by particular privileges; so called a palatio (the palace), because the chief officer in the county had originally royal powers, or the same powers, in the administration of justice, as the king had in his palace; but these powers are now abridged. The counties palatine, in England, are Lancaster, Chester and Durham. There is a court of chancery in each of the counties palatine of Durham and Lancaster. There are many privileges attached to these counties. In none of them are the king's ordinary writs of any force.-3 Blackstone, 79. (See Count.)

County Corporate, in England, is a title given to several cities or boroughs, which have extraordinary privileges, so that they form counties by themselves.

COUP (French; a blow). This term is used in various connexions, to convey the idea of promptness and force.-Coup de main, in military language, signifies a prompt, vigorous and successful attack.— Coup d'œil, in a military sense; a rapid conception of the advantages and weaknesses of positions and arrangements of troops. It is also used for a quick comprehension of all the points and bearings of any subject.-Coup de théâtre; a sudden and striking change in the action.-Coup d'état is a forcible and arbitrary political


COURLAND (in Russian, Kourliandia; in German, Kurland); formerly a duchy, to which also belonged Semigallia. At present, they form together the Russian government of Mittau, containing 10,280 square miles, and 581,300 inhabitants. Courland lies on the Baltic. The Dwina forms its frontier to the east. It is situated between lat. 55° 40′ and 57° 45′ N., and lon. 20° 55′ and 27° 10′ E., and is generally flat. Morasses and lakes are numerous. The climate is cold. Though healthy in general, particularly on the coasts, yet fever, dysentery and gout are not uncommon. The soil is in general sandy, in some parts clayey, almost everywhere susceptible of cultivation, but not remarkably fertile. The principal productions are grain, flax and hemp. The forests are numerous, and some almost impenetrable. In some parts, the axe has never yet penetrated. There is little pasturage, and the cattle are small. Goats are numerous: swine and birds do not abound. The forests contain wild boars, bears, wolves, elks, and other game. The coasts, lakes and rivers abound with fish. The country contains mines of iron, quarries of gypsum, turf-bogs and mineral waters. Yellow amber is collected on the shores of the Baltic. The manufactures are few, comprising only those of paper, potashes, spirit distilled from grain, and bricks. The exports are grain, hemp, flax, flax-seed, linseed oil, timber, planks, skins, wax, honey, tallow, resin, and other raw products. The principal trade is carried on at the ports of Windau and Liebau. The roads are obstructed by forests and morasses. The population is composed principally of Lettonians, Livonians, Germans and Russians. There are also some Poles and Jews. The greater part of the inhabitants are Lutherans; about one fifth are Catholics. The nobility is composed of Poles, Russians and Germans, and possesses great privileges. Courland was anciently a part of Livonia, and, like the

latter, was conquered in the 13th century, by the knights of the Teutonic order. It was subsequently united with Semigallia, and, under the name of the duchy of Courland, the two provinces became a fief of Poland. The duchy, however, was governed by its hereditary dukes till 1737. The sixth duke, Frederic William, espoused, in 1710, Anna Ivanowna, princess of Russia, who, after his death, maintained possession of the duchy; but the government of it was intrusted to prince Ferdinand, brother of the deceased duke. On the death of Ferdinand, in 1737, the estates, in consequence of the influence of the empress of Russia, elected her favorite and grand chamberlain, Ernest John Biren, to succeed him, who was exiled to Siberia in 1740. In 1762, the emperor Peter of Russia recalled Biren, who, after some contest with prince Charles, son of the king of Poland, who had been placed over the duchy in his absence, was declared by the estates the only legitimate duke. In 1769, he transferred the duchy to his son, at whose death the estates of Courland solicited a union with the Russian empire. Catharine consented, and, by an edict of April, 1795, secured to the inhabitants all the privileges which they had enjoyed under their princes, and all the rights of her other subjects. Since this time, it has formed a government divided into five districts. In 1818, the emperor Alexander confirmed the charter of the nobility of Courland, which declared the peasants free, and regulated their relations to their former lords.

COURT (curtis, curia, aula); the space enclosed by the walls of a feudal residence, in which the followers of a lord used to assemble, in the middle ages, to administer justice, and decide respecting affairs of common interest, &c. It was next used for those who stood in immediate connexion with the lord and master, the pares curia, the limited portion of the general assembly, to which was intrusted the pronouncing of judgments, &c. Finally, it came to denote the residence of a prince, with his family and highest officers. From this court (aula principalis), when the vassals began to take less part in the management of the public business, and this could no longer be transacted on the public court days (at Easter, Whitsuntide and Christmas), the different permanent state authorities were separated with independent powers, and the actual court, the residents and daily attendants of the prince, acquired a distinct character. The etiquette of the courts has been formed, in

modern times, at first on the model of the old Spanish court (the Spanish fashion of wearing the cloak, Spanish reverences, or bending of the knee, &c., being adopted), and, subsequently, the less formal ceremonial of the French court, in the time of Francis I, Catharine of Medici, Louis XIV, which admits of a dress accommodated to the existing fashion, and requires a mere inclination of the neck. The obstructions in the way of presentation have been growing fewer and fewer, especially since the time of the French revolution. The court offices are, in part, the old hereditary offices, derived from the times of feudal services. Besides these, there are others of a more modern character, which are founded, however, in some degree at least, on the old distribution of services among such officers as the chief marshal, chamberlain, master of the horse, butler, &c. The modern court offices are now all personal, and have become very numerous.-Court ladies are noble ladies, composing the retinue of the princess. At their head stands the dame d'honneur.— Court council (Hofrath-consilium aulicum). (See Aulic Council.) This corresponds, in Germany, to the French conseil du roi. Similar authorities, called, in the smaller states, Landesregierungen, were established in Germany in the 16th century, in imitation of the imperial council, and, like this council, were, by degrees, intrusted with judicial functions, till they have finally become supreme courts, wherever no particular department is established, with the charge of presiding over the general administration of justice, and have, as in Prussia, resigned the name of government to the administrative authorities.

COURTS OF JUSTICE. [The first part of this article, including all which precedes the extended account of the courts of England, is taken from the German Conversations-Lexicon, and was, of course, written by a German lawyer.] The essence of the judicial power consists in deciding according to existing law, and the facts of the case which have been brought before the court. The judge must follow scrupulously the existing laws, whether they agree with his own convictions or not. Every departure from them involves an overstepping of his own power, and an infringement upon that of the legislative body. Every decision, resting on a deviation from existing law, is invalid; and the purpose of correcting such deviations gave rise to the court of cassation in France, and to the writs of error in England. Still it cannot be denied, that a system of law

is developed far better by the higher courts than by express acts of the legislature; and the Roman, the most complete of all systems of law, is indebted for its perfection to this very circumstance, that its extension and improvement, with the exception of a few applications of the legislative power, were effected principally by the pretors or chief judges. (See Civil Law.) So also the English common law has been built up principally by the courts, who are guided mostly by precedents which their predecessors on the bench have established. The ancient French courts (parliaments and other cours souveraines) exercised a similar power. They decided contested points of law by arrêts réglémentaires, which were binding also upon the occurrence of similar cases; but, when the courts were reorganized, in 1790, not only was this privilege denied them (Code Napol., art. 5), but they were not even permitted to apply the universal principles of right to cases not provided for by express law. On the contrary, they were obliged to refer such cases to the national assembly. These questions, however, soon multiplied to such a degree, that the right of deciding according to general principles and the analogy of previous cases, was restored to the courts, and they were even menaced with punishment, if they refused to make such decisions, under the pretence that the laws were obscure. (Code Napol., art. 4.) A similar course has been pursued in Prussia; and it will forever be the duty of courts, in the explanation and application of the laws, to take for their guidance those higher and eternal principles of right which are the same in all ages and nations; not, indeed, making them take the place of positive law, but explaining the positive laws with reference to them. Many peculiarities, in ancient and modern constitutions of government, are explained, when we reflect that every command (imperium) is, in itself, distinct from the judicial power (jurisdictio). The courts in Germany are clothed with the power of carrying into effect their own decisions; but this was not always so, nor is it now the case in other countries. In all civil processes in England, the original writ is first issued from the chancery of the kingdom, except in trifling cases, where the sum in dispute is less than 40 shillings. The original writ is put into the hands of the sheriff, and contains an order to hold the defendant to do what the plaintiff requires of him, or to show cause to the court why he should not (an order

styled in England a præcipe, in Germany a mandatum cum clausula); or, without giving the defendant such a choice, the writ orders the sheriff absolutely to bring him before a court of justice as soon as the plaintiff gives security for prosecuting his suit (this order is called a pone, or si te fecerit securum). The various writs receive names from the initial Latin words, as all the judicial proceedings in the English courts were in Latin till 1730. The case is somewhat similar in France, where the officers of the court (huissiers) execute the first summons, like the officers of government, without receiving a commission from the court. Sentences, in criminal cases, are executed in France solely by the advocates of the crown, and not by the judges; in England, by the sheriffs of the counties. The judicial power should not be accused of a defective organization, because the courts have no power to execute their sentences. The constitution must provide for such an execution; but, strictly speaking, the judicial power has completed its duty in deciding between right and wrong. The sentence of a court of justice can never affect the person of a sovereign prince, and, even in regard to his immovable property, there are difficulties in the way of its execution. The remedy of the English nation, in this case, is stated in the article England. In Germany, executions could formerly be obtained against the princes in the imperial courts, and they were to be carried into effect by the circles of the empire; but, with the dissolution of the imperial constitution, this power has ceased. German confederation can carry into effect, against the states composing it, its own decrees, and the decisions of the court appointed to arbitrate between different states (the Austragal Instanz), but cannot take cognizance of the complaints of a private individual against a sovereign power, whether the one to which he is himself subject, or that of another state.


The above distinction between the proper business of courts, to decide on what is right in particular cases, and the powers of the executive in regard to the administration of justice, often appears in the organization of courts, and the officers of government concerned in the administration of justice. In the first place, this is observable in cases where the object is not so much to settle contested points, as to carry into effect the undisputed claims of one party on another, or to settle temporarily the relations of the parties (as, for instance, in regard to the possession of

certain property), with a view to a final decision of their rights at a future time. Acknowledgments of debt made before a public officer, and containing an order for their execution in the name of the government (guaranda, or guarantigia, resembling the French notarial documents), and, in general, all indubitable claims, were not anciently esteemed subjects of judicial examination, in a proper sense, in Germany; and this view of the subject is one of the sources of the participation of the executive in the administration of justice in that country. Another arises from the ordinances of the Italian cities. In the second place, the duties of the higher branches of the ministry of justice are founded on the same distinction. Nothing belonging properly to legal decisions falls within the department of a minister of justice.* His duty is to provide that the tribunals are properly filled, and that they perform their duties. He issues mandates enjoining them to administer justice (mandata de promovenda justitia). He hears complaints respecting the delay or non-performance of justice; but, in case of a wrong decision, on the part of the court, the minister has no right to alter it. To obtain this object, appeal must be made to higher courts. The establishment of these courts of appeal was an important improvement in the civil constitutions of Germany. These various gradations of courts were unknown to that country in the middle ages. The decision of every court was final, except that sometimes important cases were referred to a higher and 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 carrying the complaint to the court of the feudal superior; and, when the judges of the lower courts had decided wrongfully, they were personally responsible to the higher court, where right and wrong were often decided by an appeal to God in single combat. But, even after regular courts of appeal had been established, from the lowest rank up to the imperial, royal, &c. tribunal, and the ancient tribunals which succeeded the prince's court (aula principalis) had attained a fixed seat and permanent judges (in England, by Magna Charta, 1215, in France, 1305, and in Germany, 1495),

*The states of Germany have a particular department of government, which superintends the administration of justice, in the same manner as the U. States have departments of state, of the treasury, &c.

there were still cases in which the lower courts might be accused of obvious injustice in their decisions, and attempts were made to procure their abolition, and the higher authorities were very ready to avail themselves of the opportunity. An excellent work on the history of this relation between the executive (conseil privé) and the judicial power in France is that of Henrion de Pansey, entitled De l'Autorité Judiciare en France (On the Judicial Authority in France) Paris, 1818, 4to. This mixture of the executive and judicial authorities in France, which had become an object of universal 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 lettres 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 première 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. MeyerEsprit, Origine et Progrès 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 explanation, notwithstanding the labors of learned lawyers, such as Kopp, Eichhorn and Wigand. 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 executive and legislative, it is equally important to ascertain 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 remains, it not only throws obstacles in the way of intercourse between different states, but also tends to destroy the confidence of the subjects in the justice of rulers by the striking inconsistencies which it presents. -France, as far as we are informed, is the

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