The German Constitution

[p. 595]

5.

[…] can, whereby the freedom of the judicial power is endangered. But the administration of justice departs wholly from its nature if public power is to become its object, because thereby it, which is essentially only a part of the state, would thereby be set over the whole, in whose arbitrary will it lies to submit to the part or not, and the whole is there where the power is; for power is the union of individuals. So long as the powers are not so organized that on the side of what is called administration of justice the power is at the same time also, this administration of justice is something purely theoretical, and it cannot, either in regard to lesser disputed relations of the estates among themselves, through the actual courts of the Empire, or in regard to the more significant ones and those relating to the obligations towards the whole, through the Imperial Diet, pass over into execution. The contradiction that lies in public power being regarded and treated as private property, centuries have strained themselves in vain to resolve. The fine theory that disputes which arise should be decided not by force of arms, for force cannot indeed decide over right, but by judgement and right, has been betrayed by practice, which has followed nature, and the relations of the more powerful estates of the Empire among themselves and to the Empire have been transposed, by the necessity of the matter, from the sphere of right into the sphere of politics. Great estates, which are at the same time monarchs of other states, are in any case in another relation towards one another and in regard to war and peace not under the law of the Public Peace. Smaller estates are indeed not to make war upon one another according to it; but through the right of alliance with foreign powers they are put, only by a detour, into this very relation, and as ally of a foreign state a bishop of Münster, for example, in the last century conquered the imperial city of Münster and transformed it into a territorial town. Matters of greater importance too, the possession of lands etc., have been formally made objects of politics by the electoral capitulation and otherwise; such objects are to be decided not by courts of the Empire and the supreme judicial power but by amicable settlement of the estates among themselves, and if it cannot be done by amicable settlement

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