The New International Encyclopædia/Judge

JUDGE (OF., Fr. juge, from Lat. judex, judge, from jus, law + dicere, to say). One who finds a judgment; especially a presiding magistrate in a court of justice. The proceedings of courts of justice may be: (a) to maintain the order of judicial procedure and make provision for the execution of judgments; (b) to find and interpret the legal rule or rules applicable to each case; (c) to determine what the facts in the case are, or at least what facts shall be taken to be proved.

While all these different functions frequently are discharged by a single authority, they frequently are separated. Representatives of the people, not otherwise connected with the administration of justice, are frequently charged with the decision of questions of fact, and sometimes with the decision of questions both of fact and of law. This last separation was regularly made in the Greek democracies, in the Roman Republic, and in the early German tribes. A magistrate who was not simply a judicial officer, but who also had duties of general administration, including, in some instances, military duties—an archon or prætor or prince or hundredman—presided over the administration of justice, but judgment was rendered by representatives of the people—by 'dikasts' or 'judices,' or (among the Germans) by all the freemen. Contrary to our modern usage, the term 'judge' was not regularly applied to the presiding magistrate, but to the representatives of the people who actually found the judgment. Among the Germans it was frequently applied to the 'wise men' or 'law-speakers' who suggested the judgment which the folk-moot approved or rejected. The term judge was not applied to the presiding magistrate by the Romans until, in the Imperial period, he had become judge of the law and the facts. The term began to be applied to the presiding official by the Germans when he began (in the Frankish Empire) to obtain a considerable degree of control over the findings of the popular court. The relatively modern usage of describing the presiding magistrate as judge even when, as in English criminal procedure, he has no control over the judgment, is connected with the change which has separated judicial from general administration.

With the establishment of a separate and independent judiciary, placed beyond the reach of governmental interference, it has been found practicable, in all countries except those of the English law, to intrust to the judges the power of decision on the facts as well as on the law in civil cases. In criminal cases, however, the system of popular judgment has not only maintained itself in English law, but, after disappearing for centuries, has been reestablished on the Continent of Europe. So recent, however, has been the introduction of the jury system in Continental procedure that the inquisitorial traditions of the intermediate period are still strong, and the judge, to English eyes, seems to combine judicial functions with those of a public prosecutor. Compare Court; Magistrate.