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JUDGE (Lat. judex, Fr. juge)

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Originally appearing in Volume V15, Page 538 of the 1911 Encyclopedia Britannica.
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JUDGE (Lat. judex, Fr. juge), in the widest legal sense an officer appointed by the sovereign power in a state to administer the law; in English practice, however, justices of the peace and magistrates are not usually regarded as " judges " in the titular sense. The duties of the judge, whether in a civil or a criminal matter, are to hear the statements on both sides in open court, to arrive at a conclusion as to the truth of the facts submitted to him or, when a jury- is engaged, to direct the jury to find such a conclusion, to apply to the facts so found the appropriate rules of law, and to certify by his judgment the relief to which the parties are entitled or the obligations or penalties which they have incurred. With the judgment the office of the judge is at an end, but the judgment sets in motion the executive forces of the state, whose duty it is to carry it into execution. Such is the type of a judicial officer recognized by mature systems of law, but it is not to be accepted as the universal type, and the following qualifying circumstances should be noticed: (I) in primitive systems of law the judicial is not separated from the legislative and other governing functions; (2) although the judge is assumed to take the law from the legislative authority, yet, as the existing law never at any time contains provision for all cases, the judge may be obliged to invent or create principles applicable to the case—this is called by Bentham and the English jurists judge-made and judiciary law; (3) the separation of the function of judge and jury, and the exclusive charge of questions of law given to the judge, are more particularly characteristic of the English judicial system. During a considerable period in the history of Roman law an entirely different distribution of parts was observed. The adjudication of a case was divided between the magistratus and the judex, neither of whom corresponds to the English judge. The former was a public officer charged with the execution of the law; the latter was an arbitrator whom the magistrates commissioned to hear and report upon a particular case. The following are points more specially characteristic of the English system and its kindred judicial systems: (I) Judges are absolutely protected from action for anything that they may do in the discharge of their judicial duties. This is true in the fullest sense of judges of the supreme courts. " It is a principle of English law that no action will lie against a judge of one of the superior courts for a judicial act, though it be alleged to have been done maliciously and corruptly." Other judicial officers are also protected, though not to the same extent, against actions. (2) The highest class of judges are irremovable except by what is in effect a special act of parliament, viz, a resolution passed by both houses and assented to by the sovereign. The inferior judges and magistrates are removable for misconduct by the lord chancellor. (3) The judiciary in England is not a separate profession. The judges are chosen from the class of advocates, and almost entirely according to their eminence at the bar. (4) Judges are in England appointed for the most part by the crown. In a few cases municipal corporations may appoint their own judicial officer. See also LORD HIGH CHANCELLOR; LORD CHIEF JUSTICE ; MASTER OF THE RoLLS, &c., &c., and the accounts of judicial systems under country headings. JUDGE-ADVOCATE-GENERAL, an officer appointed in England to assist the. Crown with advice in matters relatingto military law, and more particularly as to courts-martial. In the army the administration of justice as pertaining to discipline is carried out in accordance with the provisions of military law, and it is the function of the judge-advocate-general to ensure that these disciplinary powers are exercised in strict conformity with that law. Down to 1793 the judge-advocate-general acted as secretary and legal adviser to the board of general officers, but on the reconstitution of the office of commander-in-chief in that year he ceased to perform secretarial duties, but remained chief legal adviser. He retained his seat in parliament and in 18o6 he was made a member of the government and a privy councillor. The office ceased to be political in 1892, on the recommendation of the select committee of 1888 on army estimates, and was conferred on Sir F. Jenne (afterwards Lord St Helier). There was no salary attached to the office when held by Lord St Helier, and the duties were for the most part performed by deputy. On his death in 1905, Thomas Milvain, K.C., was appointed, and the terms and conditions of the post were rearranged as follows: (I) A salary of £2000 a year; (2) the holder to devote his whole time to the duties of the post; (3) the retention of the post until the age of seventy, subject to continued efficiency—but with claim to gratuity or pension on retirement. The holder was to be subordinate to the secretary of state for war, without direct access to the sovereign. The appointment is conferred by letters-patent, which define the exact functions attaching to the office, which practically are the reviewing of the proceedings of all field-general, general and district courts-martial held in the United Kingdom, and advising the sovereign as to the confirmation of the finding and sentence. The deputy judge-advocate is a salaried official in the department of the judge-advocate-general and acts under his letters-patent. A separate judge-advocate-general's department is maintained in India, where at one time deputy judge-advocates were attached to every important command. All general courts-martial held in the United Kingdom are sent to the judgeadvocate-general, to be by him submitted to the sovereign for confirmation; and all district courts-martial, after having been confirmed and promulgated, are sent to his office for examination and custody. The judge-advocate-general and his deputy, being judges in the last resort of the validity of the proceedings of courts-martial, take no part in their conduct; but the deputy judge-advocates frame and revise charges and attend at courts-martial, swear the court, advise both sides on law, look after the interests of the prisoner and record the proceedings. In the English navy there is an official whose functions are somewhat similar to those of the judge-advocate-general. He is called counsel and judge-advocate of the fleet. In the United States there is also a judge-advocate-general's department. In addition to being a bureau of military justice, and keeping the records of courts-martial, courts of inquiry and military commissions, it has the custody of all papers relating to the title of lands under the control of the war department. The officers of the department, in addition to acting as prosecutors in all military trials, sometimes represent the government when cases affecting the army come up in civil courts. See further MILITARY LAW, and consult C. M. Clode, Administration of Justice under Military and Martial Law (1872) ; Military Forces of the Crown (2 vols., 1869).
End of Article: JUDGE (Lat. judex, Fr. juge)

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