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THE OFFICE OF THE JUDGE IN FRANCE AND ENGLAND.

(From the Pall Mall Gazette , Nov, 2.) A writer whose paper appeared some days ago in conspicuous print in The Times was not happily inspired when he selected the present moment for a glowing eulogy on the English judicial system at the expense of the French, and for au unqualified panegyric on the wise policy of selecting Judges from the Bar instead of constituting them a separate judicial service. The two “ scandals”—to employ a convenient expression once protested against by Hr. Lowe—which have just astonished the English legal profession, could never have occurred iu France. A French Court of Justice, whether it arrives at a decision unanimously or by a majority, never betrays any difference of opinion in its judgment. To the untutored mind of the foreign lawyer justification of this course would appear to be superfluous. A tribunal of last resort, he would sav, not only decides a dispute between two parties, but decides the law, or in other words legislates ; aud the disclosure of a difference of opinion can have no effect except that of weakening the authority of judicial legislation. When then, the Lord Chief Baron attempts irregularly to break through the well-known rule of the Privy Council, which closes the mouth of _ a dissentient minority, he simply sets aside the better rule in favor of the worse. The English practice of delivering separate judgments may have a certain meaning and use when it is confined to Courts whose decisions are subject to further appeal—though even then it is attended with some serious inconveniences ; but a tribunal whose office it is to settle the law finally ought in principle to speak peremptorily and conclusively. Nothing hut the fact that the House of Lords is principally a legislative assembly can account for the separate opinions which on rare occasions are given by the law lords. If ever there were circumstances which showed the rule of the Privy Council to be the wiser, they are those of the present moment; for to betray a difference of opinion in the case in which the clergy are concerned is to invite disobedience. We may add that no more grotesque method of discrediting the rule was ever devised than the imputation that it was once the rule of the Star Chamber. Is it necessary to prove that the constitutional and judicial principles now recognised in this country have been very slowly and gradually established, and that there is scarcely a single English institution which has not at some time or other been put to uses absolutely uncongenial to the spirit of our time ? All our institutions must, in short, be judged by their present working. Among other reasons assigned by the writer referred to for preferring the selection of Judges from the Bar, it was curiously alleged that in reality English barristers have a judicial training. They are constantly, it is said, giving opinions on cases submitted to them, aud the formation and expression of such opinions is essentially a judicial act. The language of the Lord Chief Baron is a remarkable commentary on this argument; for he excuses himself for his incontinence of speech by informing his correspondent that when he was at the bar he gave an opinion that the employment of vestments by the Ritualists was legal. It would seem, therefore, that a barrister elevated to the Bench considers himself bound by the opinions on legal points which he signed before he became a Judge. If it were not certain that the majority of the Bar would regard the Lord Chief Barou’a reasoning as altogether eccentric, there could bo no stronger reason against the English system of taking the Judges exclusively from their ranks. Fortunately, there is a great deal more to be said for this system than is advanced by the writer, who asserts that all English barristers are virtually Judges. The greatest drawback on it is that which has just received so striking an illustration. There is really no check whatever on tho latitude of choice iu the appointments of Judges permitted to au English Lord Chancellor, If a lawyer of his own party, belonging to the second or even third rank of his profession, has forced himself into Parliament, the Lord Chancellor may prefer him to the acknowledged luminaries of tho Bar. If he selects the Judge beyond the circle of Parliamentary lawyers, he may indulge his personal predilections to the very utmost. Nobody doubts that tho legal arguments of the gentlemen just promoted to tho English Appellate Bench have commended themselves to the taste of some of the Judges who have listened to them. The misfortune of tho English system is that there is nothing except a fancy of this kind to control the selecting authority. Now, whatever defects there may be in tho French organisation of the Courts of Justice, there is very much more than taste to determine the

selection, .andpromotion ..0f,,.. Judges. ..It .may be that there is too much readiness on the part of French Judges''to stand’ well with the Minister of Justice. Y7e, at .all events, who, without a thought of blushing, admit that party allegiance to the Government of ; the day constitutes a claim to judicial elevation, ought to be cautious of imputing servility to the French Bench ; but, in point of fact, much of the belief in this servility which is common iu England is based on vulgar ignorance. Such accusations come from French Liberals; and the French judicial service has a very strong and distinct conservative bias, just as the French Bar as a whole is markedly Liberal and even Radical. But it is exactly because French Judges constitute a service by themselves that the Minister of Justice iu France is placed under an effective control. There is a strong force of public or professional opinion which carl be brought to bear upon him, and the promotion to high office of a mau even of marked promise who has not fairly fought his way to ■ its verge is practically, unknown. The recemmendations and disadvantages of the French and English judicial systems do not correspond to one another, and the comparison of the two systems is not a very useful process. The fact is that their history has been altogether different. The French Courts are descended from the French Parliaments, and the Revolution only partially distorted the line of descent. The English Judges are descended from the officers of the English King, and they bear many traces of their origin, though it has become their pride to disdain the control of the Royal prerogative. The writer, who sees nothing remarkable iu, the French Judges except that they are not selected from the Bar, has missed the really remarkable characteristic of the French system, which is the uumerouaness of the group of Judges forming a Court. It is only at the very bottom of the French judicial ' organisation that single Judges sitting, by themselves have any authority. The higher Courts are always composed of several and even of many Judges ; and this composition is connected with many other features of the French tribunals. It has a relation, for example, to the absence of a jury iu French civil cases. A French Court may be said to consist both of Judges and jurymen, since French lawyers fully recognise the advantage of bringing many minds to bear simultaneously on knotty questions of fact. It is also connected with the barrenness of tho French law of evidence, since a law of evidence in the English sense is absolutely unmeaning unless Judge and jury be separated. Again, it, is. connected with the practice of giving only one judgment in each case; if each Judge gave a separate judgment the French law would be a mass of confusion. The great number of French Judges explains also their slender: salaries ; no finances would bear the strain of paying them on the same scale as English Judges. The contrast between the English and French systems in respect of the number of judicial officers by whom they are worked should put an end to idle speculations on the reason why one set of Judges are taken from the Bar, while the other set constitute a service. It is only by accustoming a great number of men to judicial work from an early period of life that the French Courts can be manned with any approach to efficiency. No Bar could supply a sufficiency of properly qualified men. Any impartial person can, in fact, easily see that the very considerable recent increase in the number of English judgeships has put the capacity of the Bar_ to supply incumbents for them to a very serious strain. The choice of Judges is virtually confined to successful advocates, aud we have really come quite, or very nearly, to the end of the successful English advocates who have in them the making of good Judges. A very successful English advocate often makes a good Judge—in the first place, because he is generally or constantly a very able man, but in the second place, and chiefly, because of the fewness of vacancies on the Bench until quite recently, and of the consequently energetic operation of the process of natural selection. But it is quite idle to say that the qualities of an advocate are always those of a Judge, aud equally idle to deny that some of the recently appointed Judges are advocates aud nothing else. It Is by the real difficulty which the increase in the number of Judges has created that the recent appointments may be in some measure palliated.

Permanent link to this item
Hononga pūmau ki tēnei tūemi

https://paperspast.natlib.govt.nz/newspapers/NZTIM18780121.2.23

Bibliographic details
Ngā taipitopito pukapuka

New Zealand Times, Volume XXXIII, Issue 5250, 21 January 1878, Page 3

Word count
Tapeke kupu
1,608

THE OFFICE OF THE JUDGE IN FRANCE AND ENGLAND. New Zealand Times, Volume XXXIII, Issue 5250, 21 January 1878, Page 3

THE OFFICE OF THE JUDGE IN FRANCE AND ENGLAND. New Zealand Times, Volume XXXIII, Issue 5250, 21 January 1878, Page 3

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