37

national law that acts of municipal legislation cannot alter the international obligations of the state. If an act of municipal legislation cannot alter the international obligations of the state, it would seem that the mere declaration of the chief of a revolutionary faction, whether ultimately successful or not, could hardly affect the international obligations of the state.

A question has also been raised as to whether an alleged declaration attributed to the President of the United States to the effect that "he will not recognize as legal or binding anything done by Huerta since he became Dictator," i. e., subsequent to Huerta's dissolution of the Mexican Congress and the arrest. of certain deputies, October 10, 1913, has any effect upon the international obligations of Mexico, or operates as an estoppel upon citizens of the United States to whom Huerta incurred obligations subsequent to October 10, 1913. As against foreign governments, it would seem that the alleged statement of the President does not alter the obligations of the Mexican nation under the general principles of international law. As regards citizens of the United States having claims against Mexico, it does not seem that the Mexican government can avail itself of any such declaration to escape obligations properly incurred and due by the nation or its authorities under the recognized principles of international law. In other words, the declaration is without legal effect except in so far as the Department of State, in the exercise of its discretion as the prosecutor of the claims of American citizens, may determine not to espouse claims of the character described. As such a position would be politically unwise and legally and morally unjust, it is hardly likely that it will be taken. Claimants, therefore, may with some degree of certainty ascertain the legal validity of their claims by an examination of the law of international claims as laid down by numerous mixed claims commissions, the decisions of municipal courts, the rulings of Secretaries of State and Ministers of Foreign Affairs and the opinions of international lawyers.

EDWIN M. BORCHARD.

NEW YORK Bar.

37 Mr. Fish, Sec'y of State, to Mr. Foster, July 15, 1875, 6 Moore, Dig. 310; see Sec'y Bayard's statement with reference to the Venezuelan law of February 14, 1873, 6 Moore, Dig. 745; see also For. Rel. 1887, 99; 1888, 491; and 1893, 731-732.

THE FRENCH JUDICIARY

I

STATUTORY BASIS

In France as in most continental European countries, the judiciary is not a constitutional creation. The organization of the courts, their jurisdiction, the mode of appointment and removal of the judges, their qualifications, and their tenure are all matters which are regulated entirely by statute. The silence of the present constitution on this, as on so many other matters customarily dealt with in the fundamental law, is explained in part by the peculiar circumstances under which it was framed, and in part by the view which still widely persists in France, that the judiciary is merely a branch of the executive department.1 This failure to accord the judiciary a place in the constitution as one of the "great public powers" has called forth many expressions of regret from French writers who complain that the effect has been to degrade it to the position of a fonction whereas it should be regarded as a grande pouvoir, to reduce it to a state of dependence upon the executive power, and to diminish the great rôle which it should play in the life of the state. This dependence is one reason why, we are told, the French judiciary has never asserted or exercised the right to declare unconstitutional acts of the legislature null and void.3

Some French commentators, however, argue that the silence of the present constitution in respect to the judiciary is no proof that it was intended to be regarded as merely a branch of the executive power, and they point out that in most of the earlier constitutions of France it was in fact treated as one of the great departments, usually a separate chapter or title being devoted to

'Compare on this point Dehesdin, Le recruitement et l'avancement des magistrats, p. vi; Larnaude (REVue des indées May 15, 1905); Berthélemy, Droit administratif (6th ed.) p. 12, who regards the judiciary as a branch of the executive power; Esmein, Droit constitutionnel (5th ed.) p. 17, who adopts the contrary view. Generally the administrative jurists reject the tripartite theory.

Compare on this point the observations of Coumoul in his Traité du pouvoir judiciaire, chaps. i, iii, and vi.

See my article on Judicial Control of Legislative and Administrative Acts in France, 9 AMER. POL. SCI. REV. especially, pp. 657 ff.

the pouvoir judiciaire. It seems quite clear that the reason why the authors of the present constitution neglected the judiciary is to be found, as stated above, in the peculiar circumstances under which they sat and in the belief that their work should be restricted to the preparation of a provisional instrument dealing mainly with the organization of the executive and legislative powers, and the defining of their relations."

II

UNITY OF CIVIL AND CRIMINAL JUSTICE

Another distinguishing characteristic of French judicial organization is to be found in what the French call the unity of civil and criminal justice. This does not mean that civil and criminal actions are tried according to the same rules of procedure, but that the same courts which hear and determine civil actions also try criminal cases. The desirability of separate courts for the trial of criminal and civil cases has never commended itself to the French in the same degree that it has to the English, or even to the Americans. It is true that the superior courts are divided into civil and criminal chambers, as is the custom generally on the continent, but these chambers are not regarded as separate courts but merely subdivisions of the same tribunal. Thus, the court of assizes, which tries crimes, is not an independent autonomous court, but a special organ constituted from the personnel of the court of appeal. So the tribunal of correction for the trial of misdemeanors and less important crimes is a branch of the civil tribunal of first instance.

On the other hand, there has existed in France for a long time a separate and distinct set of tribunals for the determination of administrative controversies; that is to say, controversies arising between the administrative authorities and private individuals. As is well known, the theory of administrative jurisdiction originated at the time of the Revolution and was founded on the desire of the Revolutionists to free the administrative authorities from

4

* Compare Marchand, Le recruitement de la magistrature, pp. 26, 31; Coumoul, op. cit., chap. iii.

"Some authorities consider the question to be of academic interest merely; they contend that in fact the judiciary is as independent of the government as it would be if it were a constitutional creation, unless, of course, the system of popular election were adopted.

the control of the judicial tribunals, the judges of which were suspected of hostility to the reforms introduced in consequence of the Revolution." At first, administrative controversies were heard and determined by the administrative authorities, but, in time, there grew up a distinct system of administrative courts by the side of the judicial courts, and this system remains to-day, notwithstanding the fact that the particular danger which the law of 1790 was designed to meet (the hostility of the judges to the Revolutionary reforms) has long since disappeared. The two systems of courts are entirely separate and independent each of the other; each has its own organization, its own judges, and its own jurisdiction, and questions involving conflicts of jurisdiction between them are determined by a special tribunal of conflicts.

III

LOCALIZATION OF THE COURTS

Another feature of French judicial organization which forms an interesting contrast to the English and American systems is found in the sedentary character of the French courts; that is to say, they always sit in the same place. Thus, each court of appeal sits in the chief town of the district, each tribunal of first instance sits in the chef lieu of the arrondissement, etc. The French judges never go on circuit from one town to another, as is common in England and America. Every court has its permanent seat and litigants must come to it. There was considerable sentiment at the time of the Revolution in favor of introducing the English system of circuit judges (juges ambulantes) but on this proposition, as on others, the "Anglicans" were out-voted. Proposals have been made at different times in recent years to reduce the number of tribunals of first instance (there are now 359), and require the judges of those which remain to go on circuit and hold court in different parts of the larger districts which it has been proposed to create, but as yet the opposition to the scheme has prevented its adoption. The judges themselves

The origin of the administrative jurisdiction is discussed by the writer in an article on Judicial Control of Administrative and Legislative Acts in France, loc. cit., and by Duguit, The French Administrative Courts, 29 POL. SCI. QUART. pp. 386-388.

'See Picot, La réforme judiciaire, p. 436. Such a proposal was contained in a judicial reorganization bill introduced in 1915 by M. Viviani,

have strongly opposed the suggestion because, among other reasons, it would compromise the dignity of the magistracy, and expose the judges to additional expense and inconvenience.s

IV

COLLEGIAL ORGANIZATION OF THE COURTS

Still another feature of French judicial organization which distinguishes it from that of England and the United States is the system of pluralité des juges. All the French courts, except those held by the justices of the peace, are collegial in organization; that is, they are held by several magistrates. Thus the tribunals of first instance are composed of from three to fifteen judges; the court of assizes of three judges; (a president and two assessors); the courts of appeal, of at least five judges, called councillors (until 1883, at least seven); and the Court of Cassation by forty-nine councillors. In France no judgment is valid (except those of the courts of the justices of the peace) unless it is rendered by at least three judges. The idea of a court held by a single judge, which Bentham so strongly recommended, has never gained a firm foothold in France. There the view of Montesquieu, that "there is no place for a single judge in any but despotic states" has been dominant. Juge unique, juge inique, runs an old French proverb. Throughout all the periods of French history the notion has persisted that to a certain extent the authority of a judgment is in proportion to the number of judges who render it. Plurality of judges, says Coumoul, one of the most highly respected French magistrates and writers on the judiciary, is an essential of good justice. This principle, he adds, existed during the ancien régime and the reformers of 1790 found no fault with it. It increases, he argues, the safeguards against arbitrariness, enables the courts to resist more effectively the influence of the public prosecutor and the pressure of the government, is more in accord with the habits and mental

minister of justice. Dufaure, prime minister in 1876, advocated this reform as a means of reducing the excessive number of judges.

Dehesdin, op. cit., p. 474; Picot, op. cit., p. 288. Dehesdin points out that the system has no such results in England where the sheriff meets the judge upon his arrival, in red robe and livery, and accompanies him with coach and four to the quarters reserved for his lodging and entertainment.