X.

PROFESSIONAL CUSTOMS.

The contempt for efficiency is carried far even in the liberal
professions and in professional customs. We all know the story, perhaps
a mythical one, of the judge who said to an earnest young barrister who
was conscientiously elaborating a question of law: "Now, Mr. So and So,
we are not here to discuss questions of law but to settle this
business." He did not say this by way of jest; he wished to say: "The
courts no longer deliver judgment on the merits of a case according to
law, but according to equity and common sense. The intricacies of the
law are left to professors, so please when conducting a case do not
behave like a professor of law." This theory, which even in this mild
form would have horrified the ancients, is very prevalent nowadays in
legal circles. It has crept in as an infiltration, as one might call it,
from the democratic system.

A magistrate, nowadays, whatever remnant of the ancient feeling of caste
he may have retained, certainly does not consider himself bound by the
letter of the law, or by jurisprudence, the written tradition; when he
is anything more than a subordinate with no other idea of duty than
subservience to the Government, he is a democratic magistrate, a Heliast
of Athens; he delivers judgment according to the dictates of his
individual conscience; he does not consider himself as a member of a
learned body, bound to apply the decisions of that body, but as an
independent exponent of the truth.

An eccentric, but in truth very significant, example of the new attitude
of mind is to be found in the judge, who formally attributed to himself
the right to make law and who in his judgments made references, not to
existing laws, but to such vague generalities as appealed to him, or to
doctrines which he prophesied would _later on_ be embodied in the law.
His Code was the Code of the future.

The mere existence of such a man is of no particular importance, but the
fact that many people, even those partially enlightened, took him
seriously, that he was popular, and that a considerable faction thought
him a good judge, is most significant.

There is another much commoner sign of the times. The worst form of
incompetence is perhaps that which allows a man to be competent without
realising it, and, in criminal cases at least, this seems to be the
normal attitude of the majority of our magistrates.

We should read on this point a very curious pamphlet called