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THE GREEN BAG
Some time after the Norman Conquest, judges representing the royal power were sent into the various parts of the kingdom to administer the laws. But the nature of the common law as a body of rules and prin ciples founded upon usage and custom, and developed by precedent, was already too well established to be radically affected by this change in the form of its administra tion. The lawyers introduced from the civil law the fiction that all law and all power proceed from the royal person, as the source of all right and all authority. But the popular conception of law, as resting on usage and precedent, was not thereby dis turbed. On the continent, however, the law was administered, from the first organ ization of courts, so far as we can under stand, by persons directly representing royal power, and administering the law as the royal will. On the continent the judge ex ercised, and still exercises, much adminis trative authority. Indeed, the whole ten dency is to treat the courts as branches of the administrative department of govern ment. This is peculiarly true as to the criminal law, and in countries where the civil law system prevails, notably in France, the greater part of the criminal code, if it may be called such, is simply administra tive law, and the judge is a part of the machinery of police supervision. This system has its practical advantages, and is by no means subject to the ridicule which English-speaking people are wont to heap upon it. I am inclined to think that criminals are punished in European coun tries more promptly and certainly, and that crime is repressed more effectively than under the common law systems, in accord ance with the principles of which a person accused of crime is regarded as a man pre sumptively innocent, with whom the state has a lawsuit as to whether he is to be pun ished or not. The judge with us occupies the position of an impersonal arbitrator, bound to decide for the defendant unless the prosecution can make out an exception
ally strong case, such as ought undoubtedly to be made out if the defendant is justly entitled to the presumption of innocence, but taking no interest in the public welfare whatever, and indifferent as to whether crime is punished or not. As a practical fact, which we fully know unless we shut our eyes to the sources of common knowl edge and have regard merely to a fictitious assumption, very few persons are actually brought to trial, accused of crime, who are not guilty, or at least so far wrong-doers as not to be fairly entitled to the presumption of innocence which is thrown around them. But on the other hand it may well be said that, in the administration of justice, even where the state is concerned, it is of vast importance that there shall exist a sense of personal security, an assurance that the mere charges of those who may wish to do an injury, or who may entertain a mere suspicion, shall not put one in peril, and that property and liberty, which the AngloSaxons especially have always so highly prized, shall not be made insecure by accu sations of wrong-doing which are not clearly established by indisputable evidence. And I am inclined to think that the public senti ment which can be brought to bear in sup port of the punishments imposed by the common law when the criminal is convicted in such a proceeding, and the respect for the administration of law which this form of procedure inspires, and which is effective in restraint of crime often without resort to the courts, is more conducive to the public safety than is the general popular feeling of indifference to criminal conduct and lack of responsibility for that which the state as sumes to regulate, which is found prevalent in the countries of Europe. At any rate, it does not appear that the criminal classes are any more effectively suppressed under the continental system than under the system prevailing among the English-speaking people. And it certainly does appear that there is a respect for law and its adminis tration, and a just pride in the possession
