« PreviousContinue »
standing, and who are individually and pecuniarily responsible for their acts, not only to their clients, but likewise to their orders, the heads of which exercise a strict and inmediate control over their actions. In this way a degree of dignity and responsibility is attained that does away with the necessity of oaths and bonds for lawyers, and ministerial officers are placed on their probity and honour to that extent that every pleading and all process is not only presumed to be correct, but has the personal cachet of the individual from whom they emanate, and for whose slightest derelic
tion the most serious consequences are sure to follow. No
one ever questions the act of an avoué, a notaire, a huissier, or an avocat, because their acts are those of public officials whose slightest omission or neglect makes them immediately amenable to discipline or disgrace, or even expulsion from their order or chamber. In this way the highest tone of moral and professional etiquette is preserved. It is this close watchfulness—this constant vigilance of the governing bodies of the various judicial and administrative officers that gives to the French judicial system much of its recognised and unquestioned high standing. The Ministère Public is represented by an official or magistrate before every Court in France, except the Tribunal de Commerce, Conseil des Prudhommes, and Justices of the Peace. Before the Cour de Cassation there is a Procureur Général and six Avocats Généraux. In the Cour d’Appel there is a Procureur Général, one or more Avocats Généraux, and a number of substitutes, while the Tribunaux de Première Instance have a Procureur de la République and usually one or more substitutes. Their functions consist in watching, requiring,' and insisting in the name of the Government on the execution of the laws, decrees, and judgments, and, by virtue of their office, to follow and prosecute all matters concerning public order, the public domain, the rights of the State, and of those persons who are incapable of defending themselves: and to intervene as a party principal in a large number of instances where specially authorised by law to do so. They take part in every civil case and orally present their views to the Court, joining in the conclusions submitted by the avocat whose side they espouse. In such case they examine the pleadings and evidence, but take no part in the procedure, nor can they submit to the Court any conclusions other than those represented by one of the parties. These magistrates form an important feature of the Courts, and their views and support have naturally much weight with the Judges, so that not only has an avocat in a civil case to convince the Court of the merits and justice of his case, but he has also to obtain the favourable opinion of the Ministère Public in order to have the force and benefit of his cooperation. These officials, it will be seen, in their combined and various duties embody the duties of an attorney-general and district attorney or public prosecuting officer. The doctrine so well known in Anglo-Saxon jurisprudence—stare decicis—is unknown to French law. It means to adhere to decided cases—it is the doctrine of precedent. ...A precedent is a judicial decision which serves as a rule for future determination in similar or analogous cases, but in French jurisprudence Courts do not refer to other cases— precedents are rarely cited by the Court, this being left entirely to the avocat. One of the results of this system is that on almost any question there have arisen a multitude of theories, or what are called systems, each backed by numerous decided cases or the books of well-known textwriters on law, so that one is never quite sure what particular system the Court may apply to the facts of a given case. One would imagine that the adoption of the doctrine of stare decicis—the following of cases adjured by the higher Courts—would be essential to the stability and uniformity of the proper administration of justice, but this does not appear to be so. The practice has its advantages in the independence of the Courts to render their judgments untrammelled by any motive except to apply some general principle to the facts as they may be presented, and in the practical administration of the law in France equity and right in the end prevail. Under Anglo-Saxon jurisprudence, ("ourts are reluctant to interfere with the rules laid down by a Court of last resort, and will uphold them even though they would, except for such precedent, decide differently: while under French jurisprudence, as precedents are scarcely ever quoted in judgments, Courts are free to follow, and usually do follow, their own inclinations, even though they may be contrary to some adjudicated case. For this reason there is no such thing as an opinion by the CourtJudges never express an opinion—the only document being a carefully-worded judgment that recites the facts and the contentions of the parties, and then states the law applicable. Judgments are rendered by the majority of the Judges, but the personality and individuality of the Judges are never revealed, as their names do not appear, and for this reason one never hears of prevailing and dissenting opinions, a judgment being the judgment of the Court as such and not the judgment of any designated Judge. The life of the French avocat is not passed in his office or étude in the same way that most English and American lawyers do, for, except among the few prominent leaders in large cities in England and the United States, most lawyers in London and New York are generally found at their offices. In France, however, and especially in Paris, this is not the case, as the entire Bar, consisting of avocats and avoués, go with the regularity of clockwork day after day to the Palais de Justice, where they remain until late in the afternoon, ordinarily getting back to their offices at five o'clock. Most of their time is consequently passed at the Palais. There they betake themselves daily, whether they have an engagement in Court or not, and, robed, mix in the multitude, so that, whether occupied or idle, the French avocat always appears animated and busy; he pleads from Court to Court; promenades the labyrinth of long corridors, or saunters through the vestiaire, or works in the library. The Palais is practically a club—a rallying place—where the brethren meet; where they plead and try cases, or, robed, stroll and chat and pass the time away. Taking the Paris Bar for example, there are about 3,000 avocats of the Cour d’Appel, an avocat being the same as a larrister or counsellor-at-law. An avocat does not have an office, but receives and sees clients at his house, as well as avoués who entrust matters to them, an avoué being equivalent to a solicitor or attorney-at-law. An avocat never advertises, nor was it until last year professional etiquette to have professional cards or official letter paper. The standing and integrity of the Bar is maintained with severity. An avocat, having undertaken a case, cannot let it go by default even on the pretext that his fees are not paid; and while according to law he has the legal right to sue for and recover his fees, yet this is forbidden by many of the Bars, such as that of Paris, which prohibits an avocat suing for his compensation, punishing such an act as one of the most grave infractions of professional duty. Professional com
pensation is regarded as voluntary, and it cannot be fixed at so much a month, or so much a case, or based on a share of the recovery, or conditional on success. The secret prosessionnel and personal honour and probity of the Bar is scrupulously guarded, and nowhere is the dignity and high standing of professional rectitude more thoroughly safeguarded than in France. The different Bars are under the guidance and supervision of a council of the Order, who annually elect a batonnier or president, the batonnier of the order of avocats of Paris being the distinguished avocat Fernand Labori. Keen. energetic, brilliant, learned, and with unsurpassed cloquence, Maitre Labori's reputation has long since become international; it is a pleasure to know him—an honour to be his friend. A minor can practice before the Courts. There is nothing in the law prohibiting this, and, on the contrary, it can be implicitly inferred from the fact that students can be 16 years of age when they enter law schools, and that the course of study is three years, at the end of which they can be licensed, and on taking the oath they become avocats, and as such are entitled to wear the robe with the insignia of the order—the chausse or shoulder-knot on the left shoulder. These, however, are not so much the insignia of their profession as distinctive signs of their licensed grade. Once having taken the oath of avocat, the individual has the right to retain the appellation even though he has resigned or ceased to practice, as the title of avocat is distinct from the practice of law. He may still be an avocat although not an avocat à la Cour; here lies the distinction. French nationality is essential to the profession of an avocat, but this does not mean citizenship; for one can be of French rationality without being a French citizen. Avocats of the Cour d’Appel plead before all jurisdictions except before the ("our des Comptes, the Conseil d'Etat, the Tribunal des Conflits, and the Cour de Cassation, although they can by special authorisation be permitted to plead before the Criminal Chamber of the latter Court. The avocats of the Cour de Cassation are a select body numbering about sixty. They alone possess the double quality of attorney and counsellor-at-law in so far that they perform the double functions of avoué and avocat, All documents in the procedure in those high Courts wherein they practice are signed by avocats of the Cour de Cassation. An avoué is practically an attorney of record. He drafts and serves the legal documents and pleadings in a cause, petitions, decrees, orders and judgments; beides these he performs other functions, such, for instance, as the sale of property by auction. The Chamber of Avoués is a close corporation, and vacancies by death, resignation, or other cause are filled by an order of the President of the Republic after certain formalities and with the consent of the Chamber; and an avoué's étude or business has a readily estimated marketable value, the same as that of a notaire. Every litigant must be represented by an avoué, although avoués have not the right to plead, except before Courts where there are less than five avocats affiliated. An avoué can only practice before the Tribunal to which he is associated, so that there are avoués at the Cour d’Appel as well as those of the Tribunal Civil. While parties to a suit, assisted by their avoués, may personally plead their own cause without the assistance of an avocat, yet the Tribunal has power to withdraw this privilege if it sees that passion or inexperience prevents a litigant presenting his case with ordinary propriety, or with that clearness necessary for the instruction of the Judges. A party to a suit may therefore dispense with the services of an avocat, but he cannot do without those of an avoué.
The Cour de Cassation is the highest Court in France. It is the Court of final resort. Its existence dates back to 1790, when it first appeared at the Tribunal de Cassation, for, owing to the then prevailing revolutionary spirit, it was regarded unwise to use the word Court, all Courts then being designated as Tribunaux. Kings and Courts were considered terms irreconcilable with the spirit of Republicanism. The Cour de Cassation is composed of three chambers, the Chambre des Requêtes, the Chambre Civile, and the Chambre Criminelle. Cases are brought before the Cour de Cassation by what is known as a pourvoi, which is a written recital of the legal grounds why the judgment below should be reversed; and in civil matters this pourvoi is first presented to the Chambre des Requêtes of the Cour de Cassation. If the Chambre des Requêtes concludes that the grounds of appeal are unfounded, the
vol. XXXIII. C.L.T.-61