E. Belfort Bax, Lawyers and Judges, Justice, 14th March 1918, p.3.
Transcribed by Ted Crawford.
Marked up by Einde O’Callaghan for the Marxists’ Internet Archive.
Proofread by Chris Clayton (May 2007).
The man of law, as such, well nigh since the beginning of civilisation, has come in for a fair share of abuse from the lay public. There have been periods, of course, when the influence of the jurist has been in open and unabashed conflict with the interests of the community. Even in the present day, it is a usual, or at least a common thing, to hear lawyers, as a class, spoken of in terms of odium and critical sarcasm as regards their ethical character; yet what is strange is that public opinion, which is content to haul over the mere lawyer to be devoured by his detractors, will speak with bated breath and terms of unctuous reverence of that lawyer once he has become a judge. The lawyer, as such, is fair game for abuse and sarcastic reference to his moral qualities, but the judge – oh no, we must not touch him!
Where the moral boundary line lies which separates the ethical nature of the common solicitor or barrister, or even the K.C., this higher self, from the judge in this country it is difficult to see. Yet the common opinion seems to be that the lawyer promoted to the Bench as a puisne, suddenly becomes by that fact a higher, a nobler, order of moral being, to be spoken of only with reverence and to criticise whom approaches to the sin of blasphemy.
Now if we analyse the lawyer’s career from his call to the Bar to his call to the judicial Bench, we fail to discover, I venture to say, any intelligible reason for the moral change which is assumed to come over him on his attaining just this last step in his profession.
Let us follow his course in its general outline. He begins, does (say) the average barrister, as an “indifferent honest” member of the middle or upper classes who, having passed through the stage of student, has been called to the Bar. After a longer or shorter time, if he has reasonable luck, he acquires “practice.” Assuming him to succeed in his profession and in the social connections he forms, he sooner or later “takes silk” – i.e., he attains the rank of King’s Counsel. He now generally, if he has further ambitions, enters into politics, attaching himself to one or other of the two traditional parties in the State. His services to his party, forensic, financial, parliamentary, or social, if they are sufficiently important, gain him distinction, and probably in the course of time bring him a judicial post according to his merits from a party point of view. If these are great enough he will be made a puisne; if less, he may only get a county-court Judgeship or a police magistracy.
Once on the Bench as a puisne, the object of the judge as a rule would seem to be to stand well with the public opinion of the possessing classes, and especially to increase the power of the judge in the business of the courts. It is rare indeed to find a judge giving a summing up or a decision running counter to the prejudices or interests of the privileged classes at a whole, while his anxiety to enhance the power of the Bench and to encourage proceedings at law is a constant feature of legal decisions. Let me give one illustration of this last point. It used to be supposed that it was incumbent on the creditor to remind a debtor of what he was owing him before proceeding to sue him. By a judicial decision some ten years ago it was enacted that the creditor had the right of suing without so much as having sent in an account or demand for payment to his debtor. Now it is difficult to conceive what purpose such a decision as this could subserve save that of promoting vexatious litigation.
The other object of the British bench, as exhibited in its decisions, would appear to be to bring as many actions as possible under the ban of the criminal law and to increase the severity of punishment at the discretion of the judge. This is notably exemplified in the encroachments of the Bench in the matter of the crimes of murder and manslaughter. The crime of wilful murder of old presupposed the deliberate and intentional taking of life. In accordance with this, the only reasonable definition of the crime, the act of killing, where unpremeditated, being committed in a sudden ebullition of rage, was formally reckoned as manslaughter. Not only has this distinction been entirely obliterated by the practice of the courts for more than a generation past, but the definition of wilful murder has been still farther enlarged to include every in itself unlawful act by which the death of another person may be caused, although there may have been no intention whatever to cause death, nor ever any knowledge that the act in question would result in death. Such an act is by the wisdom of the English judiciary deemed to come under the definition of wilful murder! Once more, in the case of two persons agreeing to commit suicide together, judge made law has decided that in the event of one party surviving, the survivor shall be deemed guilty of wilful murder of the other who has succumbed! Thus is logic and language alike violated that it may be twisted to subserve the object of the judicial Bench in enhancing the power of the judge by enabling him to pass as many death sentences as possible. Such judicial decisions as the above, the purpose of which is only too clear, should inspire every decent and just layman with abhorrence indignation.
We often hear callow talk anent the sublime traditions of the English Bench. Now let us see in what this high-boasted morality of the British judiciary really consists. It resolves itself, when closely viewed, simply into the fact that English judges do not take money bribes. Being paid an enormously high salary – higher, I believe, than that paid in any other country – the English judge, high-souled being that he is, actually resists the temptations of the crudest and most material form of corruption. This fact alone it is to which the “high traditions” of the English Bench, so much belauded, are reducible. Class interests and prejudices, social influences, bias of party or of creed, who can deny with any semblance of truth that these things determine the summings-up and the decisions of the judge, and deflect his judgment on the Bench, quite as much as they do those of ordinary mortals in the every day affairs of life? If it be said, of course, that one cannot expect the judge to cease on his appointment to have the weaknesses of our common humanity, the answer is two-fold: in the first place, that we have the right to expect a special effort to rise to an impartiality of judgment superior to that of the average man, and that this impartiality, in spite of its formal simulation, is in most cases conspicuous by its absence and secondly, that if the judge is on the average even as other men, the halo of reverence with which he is encircled and the talk about the “high traditions” of his caste is so much artificial bunkum created in professional and ruling-class interests for the purpose of throwing dust in the eyes of the “man in the street.”
In a democratic society the judge ought surely to be regarded purely and simply as a servant of the community, and not, as he is in Great Britain at the present day, where judges are appointed generally for services rendered to one of the governing parties in the State, as a being of a superior order whose expressed opinion ex cathedra is of more intrinsic value than that of others among his fellow-citizens who are not on the Bench.
Last updated on 28.5.2007