The Administration of Justice
There are two very marked differences between the administration of
justice in Holland and in England. The first is that what are called
'petty offences' are not tried and disposed of summarily in the former
country. There the offender in such cases is subjected to a process known
as 'verbalization'--that is, his name, address, age, and all particulars
of the offence are noted by the police; and he is thereupon informed that
he will be called upon to give an account of himself later. A week or two
may pass before the offender receives verbal or printed notice requiring
his presence before the Court of the Cantonal Judge, which answers
somewhat to the English Police Court. This delay in the administration of
justice is regarded as a great defect even in Holland, and one which is
more and more being recognized. The establishment of the Police Court as
known and conducted in England is felt, therefore, to be a great
_desideratum_, and it is by no means unlikely that it may be introduced
before long, since the Dutch have always shown themselves ready to adopt
any modification of their own institutions which the experience of other
countries may prove to be clearly desirable.
The second difference is that trial by jury as Englishmen understand it
does not exist in the Netherlands. But here the Dutch are not likely to
abandon their own tradition. The jury in Holland is composed of
experienced and qualified judges, who are not apt to modify their opinions
as to the guilt or innocence of accused persons owing to the tears of the
latter or the passionate appeals of their advocates. Rightly or wrongly,
the most eminent lawyers in Holland ascribe the often-recurring cases of
miscarriage of justice in some countries which have adopted the jury
system to this system itself, and it is very improbable, therefore, that
in this respect the Dutch will copy any of their neighbours.
The organization of justice in Holland originated in the Code Napoleon,
which was introduced shortly after the country's annexation to the French
Empire. In the judicial system in vogue to-day, which is the result of
modifications introduced at various times during last century, and
particularly by a law of the year 1895, the administration of justice is
vested in the High Court (_Hooge Raad_), the Provincial Courts of Justice
(_Gerechtskoven_), the Arrondissements (_Rechtbanken_), and the Cantonal
Courts (_Kantongerechten_).
The High Court consists of a President, a Vice-President, from twelve to
fourteen Councillors, a Procurator-General, three Advocates-General (who
form, with the Procurator-General, the 'Public Ministry' or Office of
Public Prosecution), also a Greffier, or Clerk of Court, and two deputy
Greffiers. Most of the appointments are made by the Sovereign, and are
for life. The High Court is situated at The Hague, and its principal duty
is to control the administration of justice by the lower Courts, a
process known as 'cassation.' If, for example, one of the lower Courts
has pronounced a sentence from which there is no appeal in that Court,
and one of the contending parties is of opinion that the sentence is
excessive, that party may require the High Court to cancel or annul
(_casseer_) the verdict. When an appeal for cassation or annulment is
thus made, the High Court has not to go into the question of the guilt or
innocence of the contending parties, but merely into the question whether
the lower Court has judged rightly or whether it was competent to judge
the case at all. Such 'cassations' occur almost daily, not because the
High Court has a reputation for reversing the verdicts given below, but
because the process offers at least a good chance of getting a sentence
reduced. The Public Prosecution, however, has power to set in motion the
process of cassation without being called upon so to do if the interests
of justice should in its opinion require it. To the jurisdiction of the
High Court belong also piracy cases, the apportionment of prizes made in
war, and the determination of accusations against State officials of
abuse of power.
Of Provincial Courts there are five, each composed of officials similar in
name, though not in rank, to those of the High Court, and they, too, are
for the most part appointed by the Crown, though not all for life. These
Provincial Courts pronounce judgment in the second instance--that is, when
the decision of a lower Court has been appealed against. This is, in fact,
their principal function, though they also pronounce judgment in the first
instance in cases of difference between the Cantonal Courts or
Arrondissement Courts. The latter are so named from the divisions into
which the country was split up for administrative purposes during the
Napoleonic _régime_, for the existing arrondissement boundaries are
virtually the same as those of ninety years ago.
There are twenty-three Arrondissement Courts, thirteen of the first-class
and ten of the second class. Their principal business is to pronounce
judgment in the first instance, even in criminal cases, but they also
decide in the final instance in cases of dispute between the Cantonal
Courts, which are under their jurisdiction. They likewise adjudicate upon
claims for compensation up to a certain amount, upon disputes regarding
the boundaries of land and property, and upon complaints relating to
water-supply, drainage, and the like, while cases of mendicancy, vagrancy,
and evasion of taxes are decided by these Courts summarily.
The Cantonal Courts are, as already stated, the nearest equivalent in
Holland to the English Police Courts. Their members, however, are legally
trained and salaried men, though attached to each Court are several
unsalaried deputies. The Judges of these Courts are appointed for life by
the Crown, and the minor officiais for a term of years. All the petty
cases which in England come before the Police Court are in Holland
adjudicated upon by the Cantonal Courts. Poaching, personal violence,
cruelty to animals, damage done to dwellings, trees, or crops, are all
cases for these Courts, and so long as the fines imposed do not exceed
two guineas, their judgment is final, but in other cases the right of
appeal exists.
Mention has just been made of the fact that even from the lowest Court of
Law in Holland the amateur judge is rigidly excluded. No one who has not
acquired the diploma of Doctor of Laws from one of the Dutch Universities
is allowed to assume any responsible duty associated with the
administration of justice. The same severe requirement is imposed upon the
legal profession in general. The possession of the diploma of Doctor of
Laws and Letters alone entitles a man to practise as advocate. Amongst
themselves the members of the legal profession also exercise a sort of
mutual surveillance by means of their Councils of Supervision and
Discipline, whose duty it is to take care that nothing is done by an
advocate which is contrary to the law or to the honour of the faculty.
These Councils are chosen from amongst the lawyers themselves in all towns
where there are more than fourteen resident advocates, but in smaller
places their duties are discharged by the Provincial or Arrondissement
Courts. Should a lawyer be guilty of any serious misdemeanour he is
promptly expelled from the Community of Advocates, and he may be even
refused the right to plead in any of the public Courts. In passing, it is
an interesting feature of the Dutch judicial system that in every place
where there is a Court of Justice, higher or lower, there exists a
Consultation Bureau where people without means may obtain gratuitous
advice in legal matters. Unless a charge laid before this Consultation
Bureau appears on the face of it to be unsustainable, the Bureau appoints
one of its members to act as legal adviser and counsellor to the applicant
free of cost. In criminal cases the President of the Court concerned
appoints a legal adviser for the accused, though the latter may choose
another advocate if he pleases.
It will be interesting to enter one of these Dutch Courts of Law, and a
Cantonal Court may perhaps best serve as an example, since that resembles
most closely the English _forum_ of the people--the Police Court. Let us
assume that we are privileged persons, though engaged in serious legal
business. We are bidden to make an appearance at a quarter to eleven
o'clock in the morning, and, presenting ourselves at that hour, we take
our seats on comfortable chairs, ranged round a long square table in the
large public waiting-room. As many other people are coming in, and the
room threatens soon to be crowded, a considerate attendant, knowing that
we are in favour with the grave and reverend seigniors who preside over
the Court, shows us into another and smaller room, where one of the deputy
Clerks (Greffier) is seated working at his books. One by one other persons
come in, pay small sums of money, of which the deputy Clerk evidently
keeps an exact account, together with the names and addresses of the
payers, the amounts yet remaining due--everything, in fact, relating to
each person's case. We note that some of the payers inquire how much they
yet owe, and the sum being told them, they forthwith take their departure.
We learn that these are all people who were fined some time ago for petty
offences, and who are, or pretend to be, unable to pay the full amount at
once. Hence they are allowed to pay by instalments, and it is the duty of
the Clerk to keep an accurate account of their contributions.
Our own turn having come round, we are now ushered into the Court, where
we see His Worship the Judge seated at the head--which happens to be the
middle--of a long table, covered by the inevitable green cloth. Papers,
ink-stands, and pens are before him; at his left hand sits the Clerk, and
next to him the first deputy Clerk. We observe, too, how carefully the
proprieties are observed in the matter of dress. All the judicial
functionaries present wear a costume consisting of a black toga reaching
to the heels, with a white 'bef,' or collar-band, hanging in front
halfway down to the waist, and also a black _barrette_, or square cap, as
in France.
Five persons are seated in the chairs next to ours and opposite to the
Judge. They have just testified that the last will of their parent has
been duly carried out, and that each of them has received his share, being
in this case '3887 guilders 7½ cents'. (don't forget the half-cent, for
attention to minutiae is one of those characteristics of the Dutch which
strikes us at every turn). Presently the Judge asks the eldest of the
party whether his name is not 'So-and-so.' The answer being in the
affirmative, His Worship nods to the Clerk, who begins to read out in
clear and measured tones--
'I, So-and-so (description and address follow), hereby declare and testify
to have received as my share in the heritage of my parent the sum legally
apportioned to me, being 3887 guilders 7½ cents.'
Then the Judge asks: 'Are you prepared to swear that this is true, and
that as far as you know nothing is kept behind so that justice is not
fully carried out?' This is the legal formula in use upon such an
occasion, and it produces the expected reply. 'Very well, then,' proceeds
the Judge, 'repeat after me, "So truly help me God Almighty!"' The
familiar words of the Dutch oath are accompanied by the uplifting of the
right hand and the pointing to heaven of the first two fingers. Then
follow the other four members of the family in order of age. All of them
swear in the usual words, except the second daughter, who demurs, on which
the judicial eyebrows are raised in surprise. It appears that the maiden
suffers from religious scruples, being firmly of opinion that swearing an
oath is forbidden by Holy Scripture. The Judge listens respectfully, and
simply answers, 'Then repeat after me, "I hereby solemnly declare that the
words read out to me just now are the truth, the whole truth, and nothing
but the truth."' The conscientious witness having no objection to a
simple affirmation, the words are promptly repeated, the business is
completed, and the party are all allowed to withdraw.
Now our own turn has come. One of our party, we will assume, has been
appointed by the Cantonal Judge to be guardian over a minor son of another
of our number. All declare who, what, and whence they are, and that the
guardian has received his appointment with their common consent, while the
guardian himself makes formal declaration of accepting the duty. He is
thereupon sworn by the Judge in the occupation of his office, promising
'to act in all things as a true and faithful guardian should act, so truly
help me God Almighty.' These several incidents are fairly typical of the
sort of business which occupies the attention of these minor Courts. As we
leave the building, however, we learn another piece of interesting
information in the course of conversation with the deputy Clerk whose
acquaintance we first made. It is that the principle of 'punishment by
instalments' is applied in the case of the poorer classes, not merely in
the matter of fines, but also of imprisonment, save in criminal cases.
Many a poor man, for instance, who shortly after being sentenced to, say,
a week's or a fortnight's imprisonment has happened to find employment
would be ruined if compelled to go to prison at once. He is therefore
allowed, as in Russia, to select his own time for surrendering himself to
the prison authorities, and if, as often happens in poaching cases, two
different offences have brought upon him two terms of imprisonment, he is
allowed to come before the Judge, with the request that he may combine
these two terms, beginning his incarceration at a fixed date. The Court to
whose clemency he thus appeals generally grants the request, and the man
is thus enabled to work for his livelihood whilst the demand for labour
is general, and to go to prison when he happens to be out of work, and
would only be one mouth more to feed at home, where his wife and children
already find difficulty enough in making both ends meet. When imprisonment
is thus post-poned the offender receives from the Court a document, on the
presentation of which at the prison door the Master of the prison will
admit him as a temporary occupant of one of the cells. Old gaol-birds,
however, are not treated so tenderly, but the Judges soon learn by
experience when and how to apply this merciful arrangement, and when to
refuse it altogether.
In general the statistics of crime give Holland a decidedly favourable
reputation. Serious misdemeanours are comparatively rare. Crimes like
burglary, theft, and the like, are certainly committed often enough, but
there is no evidence to show that they are on the increase, while life and
property are at least as secure in the large Dutch towns as anywhere else
in Europe. The Hague, though a city of 220,000 inhabitants, is
sufficiently protected by the comparatively small number of 220 policemen.
Rotterdam and Amsterdam both have a larger number of policemen per
thousand inhabitants than The Hague, but this is natural, owing to the
more heterogeneous character of the population of these great commercial
centres. It is a notable fact that in every town in Holland the
Burgomaster or Mayor is the supreme head of the police, and that the Chief
Commissary of Police must not merely co-operate with him, but is in the
last resort subject to his direct command.
In spite of the fact that Courts of summary jurisdiction of the English
type do not exist in Holland, the police authority possesses a
considerable amount of power. Mention has been made of the process of
'verbalization' as applied to common misdemeanours. In the case of
drunkenness or fighting, however, the offenders are at once taken before
the Commissary of Police, who promptly deals with them. Offences against
which the police are entirely powerless are those of adulteration of food,
household quarrels so long as they remain within certain bounds, and an
offence of quite modern origin known as 'bottle-drawing' (_Anglicè_,
'long-firm frauds'). This last is an ingenious species of fraud which has
become very common in Holland of late years. A person orders a quantity of
goods from merchants of various towns on the pretence of opening accounts,
which he promises will quickly assume large dimensions. Consignment after
consignment of wares is sent, but never paid for, and when at last the too
trustful merchant discovers that he has been playing into the hands of a
swindler he gets no redress, for the artful schemer has disappeared,
taking with him the proceeds of the goods received. For a time this sort
of fraud was quite popular, but then the eyes of the business community
were opened, and the strong hand of the law fell upon several offenders
with crushing weight, after which 'bottle-drawing' lost in attractiveness.
On the whole, the police in Holland are commendably energetic as well as
dutiful, and the relationship between the police authority and the public
is generally a friendly and trustful one.
It may be noted that the Dutch law strongly discourages divorce. In
general the present generation is apt to regard separation and divorce
with greater favour than its fathers did, but though this feeling may to
some extent influence the decisions of Dutch Judges in divorce
proceedings, the law itself, strictly interpreted, offers little hope to
those who would weaken the marriage tie. When married people disagree to
such an extent that a rupture between them is imminent, and a demand for
divorce is made, proof is required that the demand comes only from one
side, for divorce by common consent is against the law except in cases of
adultery. In every other case the Judge of the Cantonal Court must do his
utmost to effect a reconciliation. Should, however, a demand for divorce
be repeated, this same Judge, or a Judge of a Superior Court, must again
endeavour to bring the parties together, and only in the event of failure
is judicial separation _a mensâ et thoro_ pronounced, and this separation
must exist for a number of years--as a rule seven--before actual divorce
can take place. Nevertheless, both separation and divorce are far more
frequent nowadays than ten or twenty years ago, owing largely to the
judicial disposition to interpret the law more in accordance with what are
known as 'modern ideas.'
Holland is one of the few countries which no longer tolerate capital
punishment. It was abolished thirty years ago, and, in spite of the
strenuous efforts of the reactionary party, it is not likely to be
re-established. Quite recently, Mr. C. Loosjes wrote a pamphlet in
advocacy of the reenactment of capital punishment, and his position at the
Ministry of Justice gave to this work considerable weight. His contention
was that since capital punishment was abolished, the crimes of murder,
attempted murder, poisoning, and parricide had increased, but Mr. Loosjes
failed to make sufficient allowance for the fact that during the period
covered by his statistics the population of the country had greatly
increased. The fact is that during the twenty years preceding abolition
considerably more crimes punishable by death occurred than during the
twenty years following that act of clemency, civilisation, and
enlightenment, while as compared with other countries Holland takes a very
favourable position indeed, standing, together with England, Belgium, and
Germany, at the head of the nations having the smallest number of crimes
of a kind usually punished by death.