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ART. XI.- THE JUDICIAL SYSTEM OF FRANCE.

THE general principles of jurisprudence, and among these the principles which ought to govern the judicial establishments of any country, were treated of in our last Number. The practical application of these is of still more importance than their abstract statement. It is an old maxim of the Schoolmen, "Nil theorica sine practica valet." We shall in this paper, therefore, consider some important parts of the French judicial system, with a view to ascertaining how far it is framed. in accordance with the fundamental rules formerly propounded. This examination, while it will serve to point out defects and suggest amendments in the jurisprudence of our neighbours, may also tend to throw light upon the principles themselves. It is above all desirable that two great and refined nations, and such near neighbours as the English and the French should live on friendly terms, especially as their amity must be equally and mutually beneficial, and their enmity equally and mutually mischievous. But so far from any ill-feeling being engendered by a free discussion of each other's polity, there can no greater act of friendship be rendered than by each communicating its lights to the other; each will thus profit by the other's experience, and the improvement of both will be promoted. England may learn from France the great advantages of a well-regulated court of appeal, and of a provision for executing the laws by public prosecutors. France may learn from England the inestinable benefits of keeping separate the judicial and legislative functions, of remunerating judges more adequately and reducing their numbers, and generally, of removing all chances of political corruption from the neighbourhood of the Bench. We begin with referring to the heads of our former paper on Jurisprudence, as containing the principles which are about to come in question, or rather those by which we are going to try the system of France. These are the 1st, 7th, 9th, and 10th1, of the second head, or that relating to the construction of Judicial establishments. We there laid down three rules:

1 Antè, p. 10, 11.

that the Judges should be as numerous as the Bar can well furnish of able men, and as the exigences of suitors require to avoid delay; that such ample salaries should be given as to secure the services of the best men; that no judge should be capable of holding any political office, or being directly or indirectly connected either with the Government or with the Legislature of the country. These principles are plainly necessary to secure the able and the honest exercise of the judicial office; and these principles govern the judicial system of England. But they do not govern the judicial system of France, and we are about to show three great deviations from these fundamental rules. The judges are too numerous and they are ill paid; they are not excluded from the legislature; they are not only not excluded from political interference, but are obliged to take, and do take as judges a political part.

1. The functions which with us in England are committed to thirty-five judges, (allowing ten Masters in Chancery, and all the other judges to be of the number,) are in France supposed to require nearly 3000. Now if it be said that our unpaid magistrates divide with the regular professional judges the office of criminal jurisdiction, we answer, that suppose one-third or even one-half the occupation of the 3000 judges in France to be criminal judicature, there would still be 1500 judges in civil causes; while if only a fifth part of the number of our thirty-five be criminal, there would remain but twenty-eight civil judges with us, and if twelve be added for bankruptcy, only forty in all. Then suppose the extent of the country to be double, we should have the number of French judges 750 in comparison of our 40 or 50. So that at the very lowest computation they have from fifteen to twenty times more civil judges than we have. But take the actual numbers, and add three regular judges for each county, (a much greater judicial force than all our justices at Sessions), we have to compare 3000 with 250, and suppose we consider the one country as double the other, with 500. This gives a difference of six to one.1 But

1 This is in fact understated. From subsequent information obtained from unexceptionable authority, we find there are 1200 Judges in 27 Cours Royales ; in Cours de premier Instances, 4200; in all, 5400.

then the French have as many more juges de paix, from 3000 to 4000 in number, and the mayors of municipalities have some limited jurisdiction. So that they have at the very least twelve times as many judges as are at all needful well to administer the justice of the country.

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Two most pernicious consequences follow, both struck at by the general principles to which we have referred the first and the seventh. It is impossible for the Bar to furnish a sufficient supply of men well qualified for the judicial offices; and it is impossible for the State adequately to pay so many Judges. Hence an inferior race of men are placed in the situations most requiring learning, and talents, and integrity. The salaries of the French Judges are wholly inadequate to draw men of eminence from the Bar. Not more than 1207. to 1607. a-year are the incomes of Judges in the highest courts, the Cours Royales; from 607. to 1007. in the Cours de premier Instance; the great tribunal of all, the Cour de Cassation at Paris has only salaries of 700l. or 800l. a-year. If it be possible to obtain for the latter sum the men most fit for the high office- which may be doubtful it cannot be supposed possible to obtain Judges of the inferior courts, who decide, however, all causes civil and criminal in the first instance, for such pay as would hardly satisfy an inferior clerk in a merchant's house, or the engineer on a railway.

But then it is said that men take the office for its dignity, and that having some private fortune, it is worth their while to become Judges with the very small addition of their salary. The answer is, that this narrows the choice of the Government to such men as have a fortune of their own. Now it is certain, both that men the best qualified may have no fortune, and that men without any other qualification may have some land or some money of their own. That men who make 40,000 or 50,000 francs a-year should quit the Bar to become Judges at the pay of four or five is impossible. How much less such practitioners as gain 90,000 or 100,000

and there are some who gain a good deal more should retire upon a salary little more than nominal! The fact, accordingly, is, that you see the ablest, the most learned, the most experienced advocates in France conducting their

causes before Judges who never had any practice or who had lost all they ever gained. Can this give the Judge his proper weight, or keep the advocate under the fit restraint?

It needless to add, that the question of salary and of numbers is one and the same. If so many judges are deemed necessary, neither France nor any other country can afford to give them adequate emoluments.

2. The French Judges are allowed to sit in the Chamber of Deputies, to which they are elected by the people. There is nothing to prevent a judge from being the representative of the district over which he judicially presides. He is of course, if a candidate for that representation, at liberty to canvass the votes of those whose causes he is daily determining, nay, on whose offences he is daily pronouncing sentence of acquittal or of condemnation. That the very worst abuses must arise from hence, who can for a moment doubt? Accordingly we have been informed, and we could name the district, that the friends of a judge, candidate for the representation, used one very powerful argument with the voters : "If you choose to vote against the president, well: but then you had better have no law-suits before him hereafter." Can any kind of corruption be more scandalous? It is an intimidation of the elector operated by a threat that for election purposes the sacred office of the Judge will be made an instrument of corrupt revenge, because a man under his jurisdiction has honestly done his duty. But though such cases may be rare, the constant and unfailing effect of the system is to undermine the judicial character. The Judge becomes a politician; he sides with a party; he is either a ministerial supporter, or an opposition member, or a neutral belonging to a third party just as much under the influence of factious views as either of the regular bands. How can such a man possess his mind equally in causes between men of opposite parties; above all, how can he hold the balance equal between the Government and the people? The eager desire to be in the Chamber, especially when parties stand evenly balanced, has its meaning in France as in England; the representation of the people is the road to reach the favour of the Court. The number of places held by deputies is considerable. The places held by the relatives of deputies are

numberless. Shall it be said that a judge is best employed in voting himself into a higher judicial station, or in voting his connections into lucrative employments; in obtaining for this man, or even this woman, a country post-office; for that other a débit de tabac; for a third a berth in the Douanes ; for a fourth a comfortable situation in the Prefecture? Surely this is not the right occupation for a judge, whatever be his own salary; but for a judge who has hardly any salary at all, it is such an occupation as cannot fail to raise temptations which in many an instance will find judicial integrity too feeble to resist them.

It is remarkable how uniformly our English Legislature has proceeded in the right direction of excluding Judges from seats in the lower house of Parliament. As often as a new judicial office is created, the Act creating it excludes its holder from the House of Commons. So it was with all the three Vice-Chancellors' places; so it was with all the new Commissioners of Bankruptcy. Then when a salary was given to the Admiralty Judge instead of fees, he was excluded from Parliament; and the Masters in Chancery can now no longer sit there. There are but two Judges who can now sit in the House of Commons, the Dean of the Arches and the Master of the Rolls. The House of Lords, being a judicial body, stands upon a wholly different footing; but the Law Lords actually upon the Bench, who are Peers, deem it incumbent on them to abstain generally from taking an active part in political debate, and to keep themselves aloof from all party intrigues.

3. There is a further and a greater vice in the French judicial system; and how it can be submitted to either by the statesmen or the people of that great and enlightened country does appear astonishing. In all the proceedings connected with the transfer of property and with litigation respecting it, there are certain public notices required to be given for perfecting the rights of parties; and the publication must be in the newspapers which circulate within the district. Now it is not optional to the party in what paper his judicial advertisement (annonces judiciaires) shall be inserted. Certain papers are pointed out, and in these the insertion must be made. There may be some reason for not allowing a party This last exclusion is, we conceive, by no means clear. - ED.

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