It makes just as great a mistake in its civil and criminal jurisdiction, though it has, up to now, so far departed from its principles as to appoint qualified jurists to civil judgeships. No one denies that this body of men is efficient. Those who act as judges know their law. There is, however, as I have often had occasion to point out, a moral as well as a technical efficiency, and in limiting the independence that is essential to moral efficiency, democracy neutralises the technical efficiency of its servants. Let me explain my meaning further.
Formerly the magistracy was a recognised and autonomous branch of the public service, and as a result, save as it was affected by revolution and in normal times by the fear of revolution, enjoyed an absolute independence. This gave, or rather preserved intact, its moral efficiency. For moral efficiency consists in an ability to act according to the dictates of conscience, and is equivalent to a sort of moral independence.
Now, the magistrates form a department of the administration and are a body of officials. The State appoints, promotes or refuses to promote and pays them. In short the State has them at its mercy, just as military officers are controlled by the War Office, or tax-collectors by the Treasury. Hence they are deprived of their independence and moral efficiency, for they are always tempted to give judgment as the Government would wish.
There is, it is true, a guarantee for their independence in the permanence of their appointments, but this only applies to those who have reached the summit of their profession, or are on the point of retiring, or have no further interest in promotion. The young magistrate who wants to get on, a perfectly legitimate ambition, is by no means independent, for if he does not give satisfaction, he may enjoy a peculiar kind of permanence, the permanence of standing still at the starting point. The only independent judges, to whom justice is the sole interest, are either those who have served for forty years or the President of the _Cour de Cassation_. I may add also the man of independent means who is indifferent to promotion and content to spend all his time at the place of his first appointment. He is exactly like the magistrates in old days, but he and his kind get rarer every year.