1911 Encyclopædia Britannica/Judge

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: (1) 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: (1) 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.