Finally, in the old days there used to be military jurisdiction for precisely the same reason.

All these exceptional jurisdictions are objects of the liveliest apprehension to democracy, because they infringe the rule of uniformity, which is the image and often the caricature of equality, and also because they are a stronghold of efficiency.

Democracy of course demolished aristocratic courts together with the aristocracy itself, and ecclesiastical courts together with the Church when it ceased to be an estate of the realm. Any special jurisdictions which still remain are looked upon as instruments of aristocracy; courts-martial are held in abhorrence because they have ideas of their own in respect of military honour and duty, and military offences.

Therein lies their efficiency, a thing absolutely necessary, if we are to maintain military spirit and discipline in a strong army. The private soldier or officer, who is only judged and punished as a civilian, will not be well judged nor adequately punished, considering the special duties and services which are required of the army. This is a question of moral as well as technical efficiency and to this the democracy pays no heed, because it is convinced that no special efficiency is necessary and that common sense is all that is required. Common sense, however, is like wit; it is useful in every walk of life, but is not sufficient in any one of them. This is just what democracy cannot or will not understand.

It makes just as great a mistake in its civil and criminal jurisdiction, though it has, up to now, so far departed from its principles as to appoint qualified jurists to civil judgeships. No one denies that this body of men is efficient. Those who act as judges know their law. There is, however, as I have often had occasion to point out, a moral as well as a technical efficiency, and in limiting the independence that is essential to moral efficiency, democracy neutralises the technical efficiency of its servants. Let me explain my meaning further.

Formerly the magistracy was a recognised and autonomous branch of the public service, and as a result, save as it was affected by revolution and in normal times by the fear of revolution, enjoyed an absolute independence. This gave, or rather preserved intact, its moral efficiency. For moral efficiency consists in an ability to act according to the dictates of conscience, and is equivalent to a sort of moral independence.

Now, the magistrates form a department of the administration and are a body of officials. The State appoints, promotes or refuses to promote and pays them. In short the State has them at its mercy, just as military officers are controlled by the War Office, or tax-collectors by the Treasury. Hence they are deprived of their independence and moral efficiency, for they are always tempted to give judgment as the Government would wish.

There is, it is true, a guarantee for their independence in the permanence of their appointments, but this only applies to those who have reached the summit of their profession, or are on the point of retiring, or have no further interest in promotion. The young magistrate who wants to get on, a perfectly legitimate ambition, is by no means independent, for if he does not give satisfaction, he may enjoy a peculiar kind of permanence, the permanence of standing still at the starting point. The only independent judges, to whom justice is the sole interest, are either those who have served for forty years or the President of the _Cour de Ca.s.sation_. I may add also the man of independent means who is indifferent to promotion and content to spend all his time at the place of his first appointment. He is exactly like the magistrates in old days, but he and his kind get rarer every year.

At best, moreover, this permanence, of which so much is thought, is an illusory guarantee, for it is often suspended by one Government or another, and the magistrates are constantly at the mercy of political crises. Their moral efficiency is indeed sorely tried.

I affirm, therefore, that this diminution of moral efficiency affects technical efficiency, because magistrates dare not insist on technical exact.i.tude when cases arise between the State and individuals, or between those who are protected by Government and those who are not.

Though cases in which the State is a party do not occur very often, those in which friends of the Government are involved are of daily occurrence in a country where Government is a faction waging incessant warfare against all other factions.

It has been said with much reason that parliamentary government on a basis of universal suffrage is legalised and continuous civil war. It is usually a bloodless civil war, but its weapons are insults, provocations, calumnies, personalities, libel actions. These go on from one year's end to the other. In a country where such a state of affairs is prevalent, the magistracy ought to be absolutely independent in order to be impartial. Yet it is precisely in a country like this that the magistracy, not being independent and autonomous, is obliged to avoid offending the party in office which, moreover, is extremely exacting, for it lives in constant fear that it may be turned out of power.

--Is there nothing to be done? Would you advocate a return to the practice of purchasing judicial appointments?--

In the first place, this would not be anything so very terrible, and secondly, it might be quite possible to secure all the advantages of purchase without its actual practice.

I can show you that it is not so very terrible, for the case is parallel with that of the exceptional jurisdictions, the mention of which filled you with horror till you remembered the commercial courts and the councils of experts, all excellent inst.i.tutions. We are appalled at the idea of a magistrate purchasing his office, and yet we employ advocates and solicitors and other legal officials and trust them with our most precious interests, yet they have, many of them, either bought or inherited their practice. Under a system of purchase, we should be judged by lawyers of whom we required more extensive legal knowledge than is at present required of the profession. We should be judged in fact by solicitors and advocates of a superior order. There is nothing very alarming about that.

Montesquieu was in favour of a system of purchase. Voltaire opposed it strongly. They were both right and were indeed agreed on general principles. Montesquieu says: "Venality,--the purchase system,--is a good thing under a monarchical form of government, because work which would not be done from mere civic virtue is then undertaken as a family business. Each man's duty is laid down for him, and the orders of the State are given greater permanence. Suidas says very aptly of Anastasius that he turned the Empire into an aristocracy by selling magisterial offices."

Voltaire replies: "Is it as a matter of civic virtue that in England a judge of the King's Bench accepts his appointment?" (It is either a matter of civic virtue or of profit and interest, and if it is not profit, it certainly must require considerable civic virtue.) "What! can we not find men in France willing to judge if we bestow their appointments upon them gratuitously?" (We certainly can: but they might be too grateful!) "Can the work of administering justice, disposing of the lives and fortunes of men, become a family business?" (Well, the business of bearing arms and disposing of men's lives and fortunes in civil war was in 1760 a family business. So too the business of being king, and you do not protest against that!) "It is a pity that Montesquieu should dishonour his work by such paradoxes, but we must forgive him; his uncle purchased a provincial magistrate's office and left it to him. Human nature comes in everywhere. None of us is without weaknesses."

Montesquieu thinks aristocratic bodies are good things. Voltaire is in favour of absolute power. Montesquieu would like the judicature to be a family office, that is to say hereditary like the profession of a soldier; this would make the judicial profession permanent like other professions. He demonstrates, as does Suidas, that the purchase system creates an aristocracy. Voltaire, like Napoleon I., would make his soldiers, his priests, and his judges, king's men. They should all belong to the king, body and soul.

Montesquieu had a greater antagonist than Voltaire in Plato. Plato wrote in his Republic, referring to all judicial offices: "It is as if on board ship a man were made a pilot for his wealth. Can it be that such a rule is bad in every other calling, and good only in respect of the governing of a republic?"

Montesquieu answers Plato (and in antic.i.p.ation Voltaire) very wittily: "Plato is speaking of a virtuous republic and I of a mere monarchy.

Under a monarchy if offices were not sold by rule, the poverty and greed of courtiers would sell them all the same, and chance after all will give a better result than the choice of a prince."

To sum up, Montesquieu wants the magistracy to be partly hereditary, and partly recruited from the wealthy cla.s.ses, an independent, aristocratic body a.n.a.logous to the army or the clergy, administering justice with that technical efficiency which university standards can guarantee, and with the moral efficiency which is founded on independence, dignity, public spirit and impartiality.

I said above that venality, or the system of purchase, was not necessary to obtain these results. The principle is this, that the magistracy must be independent, and to be independent it must have a proprietary right in its duties. This can only be obtained if it hold its office by inheritance or purchase as was done under the _ancien regime_; or, if it were somehow contrived that magistrates should not be chosen by the Government. The purchase or inheritance plan is not popular, then the only alternative is that the magistrates should be chosen by some body other than the Government. By whom then? The people? Then the judges would be dependent upon the people and the electors.

--That would be better, or less bad.--

Not at all. If the judges were chosen by the electors, they would be even less impartial than if they were elected by the Government. The judge then would think of nothing but of being re-elected. He would always give judgment in favour of the party which had elected him.

Would you care to be judged before a court composed of the deputies of your department? Certainly not, if you belong to the weaker party. Yes, if you belong to the majority, but then only if you are certain that your adversary belongs to the minority, or, if he belong to your own party, that he is a less influential elector than yourself. To sum up, there is no guarantee of impartiality if the judges are elected.

Further, if the system of electing judges by those liable to their jurisdiction were adopted, there would be an extensive and, I might add, a most entertaining variety of justice. Judges, who were elected by a "blue" or republican majority, and who were anxious for re-election, would always deliver judgment in favour of the blues. The same thing would happen in the "white" or royalists districts. "Justice has her epochs," Pascal said ironically, and in this case justice would have her districts. It would not be the same in the _Alpes-Maritimes_ as in the _Cotes-du-Nord_. The Court of Appeal, if it attempted to be impartial, would spend its time sending cases back from a blue district to be revised in a white, and the decisions delivered in a white country to be revised in a blue. There would be judicial and legal anarchy.

--If the bench is not to be inherited, nor bought, nor chosen by the Government, nor elected by the people, by whom is it to be nominated?--

By itself; I see no other solution.

For instance I can suggest one good method, though there may be several.

All the doctors of law in France could choose the judges of appeal and the judges of appeal could choose and promote all the judges. This is an aristocratic-democratic scheme on a very broad basis.

Or else the judges alone might choose the judges of appeal, and the judges of appeal might appoint and promote the judges. That is an oligarchical method.

Or again, here is a plan for pa.s.sing from the system that is, to that which ought to be. For the first time the doctors of law might choose the _Cour de Ca.s.sation_, and it could choose the judges. Afterwards the judges could fill the vacancies in the _Cour de Ca.s.sation_, which would nominate and promote the judges.

The Government would still go on, and continue to nominate the persons eligible to serve as magistrates.

Under all these systems the judges would form an autonomous, self-creative body, dependent upon and responsible to themselves alone, and by reason of their absolute independence, strictly impartial.

--But they would form a caste!--

They would form a caste. I am sorry for it, but it is the case. You will never be well judged until you have a judicial caste, which is neither the Government, nor the world at large. For the Government cannot judge properly when it is both judge and party to the suit. Further, if it be litigious; it will never be out of court. Again, the world at large cannot judge properly, because, in practice, the world at large means the majority, and the majority is a party, and by definition a party can hardly be impartial.

But democracy does not want to be judged by a caste. In the first place because it abhors castes, and secondly because it does not care about impartial justice. Do not exclaim at the paradox. Democracy does want to be judged impartially in little every-day cases, but in all important cases in which a political question is involved and in which one of the majority is opposed to one of the minority, the verdict then has to be for the stronger side.

It says to the judicial bench what a simple-minded deputy said to the President of the Chamber: "It is your duty to protect the majority."

This is why democracy clings to its official magistracy, which contains some good elements though its members cannot always be impartial. They were condemned by the mouth of one of their highest dignitaries who answered when questioned about some illegal proceeding: "There are reasons of high State policy," thus throwing both the law and the judges at the feet of the Government. On another occasion, with the very best intentions, in order to put an end to an interminable affair, they turned and twisted the law and set a bad example; for by not applying the law correctly, they laid themselves open to endless and justifiable attacks upon their decision; they did not procure the longed-for settlement, and, instead, left the matter open to interminable dispute.

They have knowledge, good sense and intelligence, but as their want of independence, in other words their moral inefficiency, neutralises their technical efficiency, they do not and cannot possess authority.

Democracy will inevitably go further along the road towards its ideal, which is direct government. It will want to elect the judges.

Already it chooses them remotely in the third degree; for it chooses the deputies who choose the Government, which chooses the judges; and to some extent, in the second degree, for it chooses the deputies who bring pressure to bear upon the nomination of the judges and interfere with their promotion and their decisions. This also is remote.

And, as by this const.i.tution, or, rather by this practice, recognition is given to the principle that it is the people who really appoints the judges through its intermediaries, democracy, always logical and matter of fact, would like to see the principle applied without concealment, and the people making the appointments directly.

Then endless questions will arise about the best way of voting and electing. If unipersonal ballot is adopted, the canton will nominate its _juge de paix_, the district its tribunal, the region its Court, and the whole country the Court of Appeal. In this arrangement there will be the double drawback mentioned above; that is, varying interpretations of justice according to districts, and no impartiality.

If, on the other hand, _scrutin de liste_ is adopted, the whole country will choose all the magistrates and they will belong to the majority. In this case there would be uniformity of justice but no impartiality. Any intermediate system would combine the disadvantage of both plans. For instance, if nominations are made in each division, all the magistrates in Brittany will be white partisans, while in Provence they will be blue partisans. In both cases they will be bia.s.sed, and such diversity as there is will be merely a diversity of partiality and bias.

We are talking of the future, though not perhaps of a very distant one.

Let us deal with the present. The jury is still with us. Now the jury combines absolute moral competence with absolute technical incompetence.

Democracy must always have incompetence in one form or another. A jury is independent of everybody, both of the Government and of the people, and in the best possible way, because it is the agent of the people without being elected. It does not seek re-election and is rather vexed than otherwise at being summoned to perform a disagreeable duty. On the other hand it always vacillates between two emotions, between pity and self-preservation, between feelings of humanity and the necessity for social protection; it is equally sensitive to the eloquence of the defending advocate, and the summing up of the prosecutor, and as these two influences balance each other it is in a perfect moral condition for delivering an equitable verdict.

For this reason the jury is of ancient origin, and has always been an inst.i.tution in the land. At Athens the tribunal of the Heliasts formed a kind of jury, too numerous indeed and more like a public meeting, but still a sort of jury.

At Rome, a better regulated republic, there were certain citizens chosen by the praetor who settled questions of fact, that is to say, decided whether an act had or had not been committed, whether a sum of money had or had not been paid; and the question of law was reserved for the centumvirs.

In England the jury still exists and has existed for centuries.

These various peoples have considered very properly that juries are excellently adapted for forming equitable decisions, since they possess a greater moral competence for this particular function, than is to be found elsewhere.

This is true; but on the other hand a jury has no intelligence. In November 1909, a jury in the Cote d'Or before whom a murderer was being tried, declared (1) that this man did not strike the blows, (2) that the blows which he struck resulted in death. Thereupon the man was acquitted, although his violence, which never took place, had a murderous result.