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VI. -THE BENCH AND BAR IN FRANCE.
EFORE the reign of St. Louis—a king who did all that
lay in his power to discourage trial by combat, and who himself often personally administered justice—the judicial institutions of France were still in that rude state of superstition which is the early characteristic of all legal systems. It was, however, not until the reign of Philip the Fair that formal law courts came into being. By the latter's ordinance of 1302 the old cour de roy-an ambulatory tribunal somewhat resembling our
curia regis — was divided into two parts, which were located in Paris and at Toulouse respectively. Similar courts were subsequently added elsewhere, and thus began that system of decentralized justice, traces of which, except in the case of the Court of Cassation, we find even in the French courts of to-day. But the present system virtually owes its origin and much of its organization to the great Revolution, which abolished the old order of things. Generally speaking, the administration of justice in France is carried out on principles very different to our own, and the judges, for various reasons, have not the weight and dignity of their English brethren. In the first place, the ministère public under the Minister of Justice supervises the work of the courts by means of procureurs-généraux in the appeal courts, and procureurs in those of first instance ; secondly, the judges are paid very much smaller salaries, and are much more numerous than in England ; thirdly, the droit administratif largely fetters their authority; and fourthly, there are not in France--since in August, 1883, the loi sur la réforme de l'organisation judiciaire was passed—the same safeguards against the improper removal of the judges as have for nearly two hundred years existed in this country.
The supreme court of France, and the only central one
among those of ordinary jurisdiction, is the Court of Cassation, which was established under the first republic. It exercises a general supervision over all the other courts, and it hears criminal and civil appeals (pourvois en cassation) on points of law. The judges, although not as a rule of much previous note in the legal world, are still men of learning and ability. The court is split up into three divisions : La chambre des requêtes holds a preliminary examination of the appeal, which without its permission cannot be brought; la chambre civile hears civil appeals; and la chambre correctionnelle hears criminal appeals. The number of judges in the Court of Cassation-fifteen in each chamber-is so large that they are unable to deliberate and consult together in their seats, but are obliged to get up and form a circle for the purpose, a proceeding which is called faire le rondeau. The system of civil appeals is lengthy and expensive, and suitors have practically two trials to go through in the Court of Cassation Barristers who practise in this court form a special bar. They appear nowhere else, and perform the duties of solicitors as well. The whole court is under a president, now M. Mazeau, who receives, according to our ideas, the absurdly small stipend of £ 1200 a year. But all three chambers have in addition their own presidents each at £1000 a year, and the forty-five puisnes, who complete the judicial-staff, draw salaries of varying amounts down to £720.
The Court of Appeal in France is a local court. It has twenty-six branches, and each has authority over several departments, with staffs of varying sizes. Paris, which has seventy-two, has naturally the largest number. Like the higher court, it is also divided into three chambers. The president of the Paris Appeal Court is paid £1000 a year, the salaries of the puisnes ranging from £440 to £550, while provincial members are paid still less. The judges of the Court of Appeal also sit in the ambulatory Cour d'assises.
Sometimes all the three members of the latter court, and sometimes only the president, are appeal judges. In the last case the other two judges come from the Correctional Court of first instance. But before a criminal case can come on at all for trial, it has to be considered in the chambre de mises en accusations one of the divisions of the Court of Appeal—the president and members of which sit twice a week in the Paris branch; and, besides hearing appeals from the juges d'instruction on the subject of bail, decide whether there is sufficient ground for sending persons accused of felonies for trial before the Court d'assise. The proceedings in the latter court are by indictment, and before a jury of twelve. An absolute majority decides the question of guilt or innocence, and an equality of votes acquits. Every arrondissement—there are 362 in France—has a civil and criminal tribunal de première instance, except those in the Seine department, which have only one between them. Each is manned by a different number of judges, some of which act as juges d'instruction, or examining magistrates, and each is divided into separate chambers. In Paris, where there are eleven chambers and seventy-four judges, the president receives £800 a year, and the eleven vice-presidents £400 each. The correctional courts or criminal divisions hear appeals from the lower courts, and act as courts of first instance for the trial of misdemeanours. The lowest courts in France are the tribunaux de paix, of which there is one in every canton, presided over by a juge de paix. His criminal jurisdiction extends only to contraventions or petty offences, for which he can inflict the fine of fifteen francs, or award five days' imprisonment. His civil jurisdiction is also very limited. The salary of a juge de paix in Paris is £ 320 a year, whilst in the provinces it varies from £70 to £200.
Besides the Commercial Court, there is another and much more important branch of extraordinary jurisdiction. This
comprises the tribunaux administratifs, for the droit administratif, of which our legal phraseology affords no corresponding expression. But it is the existence of this system which forms one of the main differences between the French and English constitutions, and it is also the reason why many events which occur on the other side of the Channel appear almost incomprehensible to Englishmen. With us all men are equal before the law. The Prime Minister, if he acts illegally, even in his official capacity, has to answer for his actions before the ordinary courts like any private individual. In France, however, this is not the case, for there a man is, as regards his official capacity, especially privileged, and is not, when he offends against the law of the land, judged by the ordinary tribunals, but by a special court composed of administrative officials. Not only so, but the rights of private individuals against government officials are determined in the same manner, and in the latter body are comprised all the servants of the State from the Prime Minister down to policemen. The droit administratif, therefore, may be said generally to be the body of law and procedure by which the public acts of official persons are judged, and by which all dealings between the State and private persons are decided. It is not, like the rest of French law, codified. With the droit administratif the judges have little or no concern, and hence they are unable to decide as to the legality of any acte administratif. In these courts, therefore, there do not seem to exist many of those elements which go to make up impartial tribunals. The jurisdiction administratif consists of courts of first instance in each department, an Exchequer Court (cour des comptes) which supervises the management of the revenue, and the conseil d'état in Paris, which hears appeals from the two first-named. It has a special procedure of its own. When civil and administrative jurisdictions conflict, and it is uncertain before which court cases should be tried, the tribunal des conflits decides the
matter. The system, although it has advantages, does not seem calculated to raise the dignity of the bench, since it appears practically to have the effect of placing the judges under the thumb of the Government.
The order of advocates, which has the exclusive right of pleading in the French courts—except in some trivial matters --has a very ancient origin, and traces its name to the reign of St. Louis. The great revolution interfered with some of its privileges; but now nearly all have been regained, except some which are clearly out of touch with the times, such as the right to nobility which advocates once possessed. The discipline and finances of the order, and the admitting of candidates to be law-students, is entrusted to the conseil de discipline, which is presided over by the bâtonnier. The latter is head of the order, and is so called because one of his duties is to carry in public processions the staff of the banner of St. Nicholas, the patron saint of advocates. Chosen now by the whole bar, he holds his office for a year, and his duties are to represent it generally; to settle disputes; to give advice when asked to do so; to appoint advocates for the defence of poor people; and to reprimand those members who have committed breaches of professional etiquette. Advocates are not permitted to charge any fee for their services. Before being admitted into the order the probationer must have obtained a university law degree, and taken the oath before the Court of Appeal.
The large number of judges in France is supposed to give greater weight to their decisions. But the principle has many disadvantages. The numbers are so large that the salaries are necessarily small; and thus the country has not at its command the best legal talent. In fact, even if it had, the demand is so enormous, that it would be beyond the powers of any bar to supply none but men of the first rank. As it is, an eminent barrister rarely accepts so paltry a salary as that even of a judge of the Supreme Court; and the very general