The Appeal. [volume] (Saint Paul, Minn. ;) 1889-19??, 1899-03-04
CONTINENTAL AND ANGLO-SAOxN
r ADMINISTRATIONS. -

ARord-Why Courts of Justice,
Except In England ana America,
Are Without Backbone or Insie-
Observation-Disclosures Upon and
,AGbservient to Executive Power
Gambetta ON the French sysxem-
Henry " and Jadge Ga~cOyae.z :.
In the United States, az In Great
Britain, the law OF The, land. is superior to
the government, the members OF which
are subordinate, in common with all other
citizens, to the jurisdiction OF the courts.
On the continent of Europe, 1T is the CON
'trary that rs the case. There the admin
'1stration is, practically speaking, superior
to the law, and the tribunals both high
and low, are subject. to the government
of the day, either in the person Of the
crown. as, for instance In Germany, Aus
tria and Russia, or else In that Of cabi-
net which owes it's ephemeral. tenure of
power to the caprice of a parliamentary
najorfty. It is absolutely necessary to
bear this In mind In order to understand
what Is now going on In France, and
likewise to appreciate the action Of the
italian courts in connection with the
bank frauds the German tribunals ir the
matter of leze-nrajesty, and the action Of
the Spanish bench in dealing with the
legacy bequeathed by Queen Isabella.s
halflorother, Don Alessandro Solar, to the
queen regent. Their attitude would be
incomprehensible were it not for the fact
that the Judges of continental Europe are
mere government officials, subordinate to
the executive, instead of being, as in
Great Britain and here in the United
States, superior thereto. ~
Neither in England nor in the United
States is there IN the cabinet a member
OF the administration who holds the office
OF minister of Justice. At Washington
there is an attorney general among the
constitutional advisers OF the president.
But he has nothing to do with the su-
pervision or discipline Of the judiciary
of the United States, and his duties are
practically those of counsel to the execu-
tive. In England the lord chancellor has
a seat in the cabinet. But his responsible
tiles have little or nothing in common
with those of a. minister of justice, says
''Ex-Attache'' in the New York Tribune,
and while he Is superior in rank to the
judges of the land they are wholly inde-
pendent Of him, since he has no power
to discipline or dismiss any save the
justices of the peace, who in nine cases
out of ten have no legal training and re-
ceive no pay
On the continent, however, every judge,
no matter what his grade, is under the
orders of the minister of Justice for the
time being: 1t Is the minister who makes
the nominations and the appointments
although these bear the signature of the
executive. 1t Is he who decides upon the
promotion and upon the rewards, and 1t
is he also who has the power Of dismissal
not only In the case of the subordinate
magistrates, but likewise in those of the
judges of the high court, and even of
the courts of appeal 1t is perfectly true
that In France this disciplinary power
with regard to the judiciary of the high
courts Is supposed to be vested in the
hands of that supreme tribunal known
as the court of cessation. But the latter
Is itself subject to the orders of the min
lister of justice, who, no matter whether
or not he be lawyer by profession, pre-
sides In the court of cessation in all
disciplinary matters, directs and controls
its views and pronounces Judgment in it's
name.
If a judge gives offense to the gov
eminent of the day in any continental
country his life is made a burden to him
In many ways. He will be transferred to
some disagreeable post: his rights to pro-
motion will be suspended; the decorations
and orders of knighthood which to every
foreigner are a source of satisfaction and
an object Of ambition are withheld; while
If that Is not sufficient to bring the re-
calcitrant judge to his senses, either his
pay is stopped or he is dismissed. When,
in addition to this, the fact Is taken into
consideration that the pay Of the judges
everywhere In Europe save in England,
Is 80 incredibly meagre as to offer little
or no inducements to lawyers possessed
of intellect, learning and forensic powers,
it will readily be Understood that it IS
only the most inferior quality of legal tim
per that remains at the disposal Of the
government for conversion into judges,
and that the very fact that a man forms
part Of the judiciary on the continent
of Europe constitutes an indication that
he is both q dullard and above all,
poor lawyer, '..: ',F' ~-~.
{ In thls country seat on the bench
States or even the supreme court Of the
Separate states is justly regarded as a
public acknowledgment of legal eminence
and Of independence of character, while
in England the same thing is the case,
judgeships as rule marking the climax
of a successful and brilliant career at
the bar. In France and elsewhere on the
continent of Europe it is the reverse that
is the case and the mere fact that
man is judge Is considered as an adnis-
sion that he has been a failure as a.
lawyer and that he has little or no indie
pendence Of character. .r., y
It Is true that. sometimes toward the
end of his judicial career,a judge who has
nothing more to. hope for in the way of
promotion and reward, and who has rea-
son to believe that the minister of jus
tice will not dare to go to- the length of
depriving him Of the pension to which he
Is entitled by long years of service, may
venture to display certain amount of
backbone and impartiality, a case in
point being that of President Loew, of
the criminal division of the court of cas-
sation, now engaged in investigating
the Dreyfus case. But even here 1t must
be borne in mind that Loew Is supported
In his attitude by the knowledge that he
Is backed in the stand which he has taken
by two-fifths of the chamber Of deputies
by what will probably be proved to be a
majority in the senate and at any rate
a moiety Of the French nation. Such
cases as his are, however, few and far
between, and tho amount at abuse to
which he has been exposed Of late In the
Partisan press, and even on the part of
newspapers recognized as ministerial or
gans,, shows abundantly how unusual 1t
is for a French Judge to exhibit indie
pendence of character and resistance to
administrative pressure.
There was no one who deplored more
sincerely the lack of thoroughly indie
pendent and strong judiciary III France
4 than sGambetta- The first occasion on
which he happened to discuss the matter
in my presence was at a breakfast at
the Palais Bourbon, when he was presi-
! dent Of the chamber of deputies It was
at the time when the question Of renew.
ing the charters of the various great rail-
roads OF France first cropped up. and In
cidentallyShe recalled tho fact that owing
to the frequency Of accidents when rail-
road travel was first begun, and to the
! anxiety Of the government to promote
! railway construction the state4.had orig