The Cornell Law Quarterly

The subject of Recusation has not become familiar in our legal procedure. As it is to be here discussed, it signifies the right to except to the competency of a judge in a particular cause; or more literally it is the refusal to have the cause tried by a judge because of some disqualification. On the continent of Europe it had also a more general application, as the term "Recusatio" originally meant broadly an objection,1 and later a challenge to the competency of other officials besides a judge conducting a trial.2

Under early judicial systems, and especially in the medieval times, judges were not necessarily permanent officials. They might be commissioned for a particular session of the tribunal or in the canon law for the hearing and disposition of some special case. In place of those disqualifications that form part of modern judiciary statutes, the party summoned had to assert affirmatively his objection to such a named judge. He could except to the judge's commission, or to some defect in the form of its authentication. He might object to the judge himself either on grounds that were general, such as are part of the requirements for the office, or because of his personal attitude as being prejudiced, or even on a ground of apprehension that he would not be impartial. Either of these objections come under the civil law distinction of dilatory exceptions; and therefore

*From a lecture before the Association of the Bar of the City of New York, April 19, 1923.

Of the New York Bar; former Justice of the Appellate Division of the New York Supreme Court.

'An instance of use as a general objection-"poena violatae religionis justam recusationem non habet."-Cicero, de Legibus. 2. 16. 41.

"Montesquieu also uses this term for a challenge to juries in England, comparing the criminal procedure in ancient Rome with that in England:

"Chaque année, le préteur formoit une liste ou tableau de ceux qu'il choisissoit pour faire la fonction de juges pendant l'année de sa magistrature. On en prenoit le nombre suffisant pour chaque affaire. Cela ce pratique à peu près de même en Angleterre. Et ce qui étoit très-favorable à la liberté, c'est que le préteur prenoit les juges du consentement des parties. Le grand nombre de récusations que l'on peut faire aujourd'hui en Angleterre, revient à peu près à cet usage."-L'Esprit des Lois, No. 11, ch. 18, p. 339, vol. I (ed. Basle 1799).

must be availed of before contestation of the suit, litis contestatio, which is hearty equivalent to our "joinder of issue."

It. does not appear that any fixed age qualification for judicial office was prescribed. Even between the ages of eighteen and twenty ajudge might sit by consent; above the age of twenty he seems to have possessed sufficient age qualification. It was declared by Ulpian that a blind man might be judge. But this was later qualified."

The leading authority on these details is Zanger, a professor of the University of Wittenberg, whose Tractatus de Exceptionibus, published in 1586, has passed through many editions. Chapter IV deals with the Exception Recusationis Judicis. He declares the general principle which statutes and legal authors amply support, that this right of objection to a judge is to be favored, as founded on equity and reason."

The permanently insane, of course, could not hold such office but those whose infirmity was only at intervals might act, as the prohibition was not operative except during such intervals.

This authority declares against women as judges, not on grounds of nature, but because of custom. Zanger's sententious words are "Moribus prohibentur dari judices mulieres." This, he says, is because women are much given to levity, inconstancy and frailty; and the duties of the judicial office involve matters that are opposed

"Defense, in its true legal sense, signifies not a justification, protection or guard, which is now its popular signification, but merely an opposing or denial *of the truth or validity of the complaint. It is the contestatio litis of the civilians, a general assertion that the plaintiff hath no ground of action***." Blackstone Comm. Bk. III, p. 296.

"Atq. hoc sensu accipiendum est Gregorii IX rescriptum in c. cum vicesimum, 41. de off. deleg. dum rescripsit tum posse quem dari judicem delegatum, quando is annum vicesimum peregerit. Nec hoc discrepat à jure civili." Zanger, Tractatus, pp. 151, 152 (ed. 1565).

"Caecus judicandi officio fungitur, Dig. lib. 5 Title 1, 6.

"According to Accursius and Bartholus a blindman could not regularly give judgment; but if this blindness had come on after taking office, his judicial power remained. "Caecum regulariter non posse dari judicem sed si in caecitatem inciderit postquam datus est, judicem manere.'

It was otherwise with a magistrate. He must impress the people. "In magistratu praeter id, decoris et splendoris publici ratio habenda est."-Zanger, loc. cit. p. 153.

The deaf (vero surdus) were also barred from the judicial office. "Nam etsi loqui potest, et, sic quod mente percepit, verbis proferre et pronunciare: tamen cum in judice, praeter id, requiratur cognitio causae, eaque cognitio potissimum in eo consistat, ut is judex audiat litigantium jura, et de iis per auditum perceptis cognoscat et pronunciet." id. p. 152.

"Est enim favorabilis et in naturali aequitate et ratione fundata." id. p. 147. 8"Perpetuo furiosus ideo judex esse prohibetur, quia mente caret, ejusque nulla est voluntas * *Adjecit autem Paulus particulam, perpetuo furiosus. Ex quo intelligimus, si habeat dilucida intervalla, et datus sit judex, dationem valere, et prohibitionem cessare.”—id. p. 152.

« 이전 계속 »

도서

The Cornell Law Quarterly, 9권