14 SEPTEMBER 1867, Page 8

BAD J UDGES. T HE qualifications of a good Judge are

so high that we can- not be surprised at their rarity, and when we remember the way in which many Judges are selected, we can hardly complain that there are such flagrant examples of unfitness. As we observed last week, the Borough Recorders are some- times jobbed into their places, and even when fairly chosen they are not appointed by those who can test their capacity. In the Superior Courts a seat on the Bench is the reward of political service. The Bar has had too good an opportunity of judging the wisdom of rapid promotions from a.iivoeacy iii opposition to the cushion of a Chief Justice. But though such extreme instances are rare, the general coarse of advancement has been faulty, and if instead of fifteen Judges we are to have twenty, it is to be feared that an increase in the number of appointments will cause the multiplication of jobberies. When people talk of the higher standard of judicial capacity which prevailed in their youth, they forget that while the work was not so multifarious the Judges were fewer. The Government had not so many places to give away, and of course the claims of the real chiefs of the profession could not be disregarded. Add a junior judge to each Court, and you have posts which are not so conspicuous, but which are extremely serviceable. A man must have done something for the party to be made a Chief Justice. Two or three contested elections are enough for a puisne'. Yet, while the chances are in favour of the first being a =ix of eminence, and great lawyers are often keen politicians, the man who merely stands for places is apt to be a mediocrity. One can point to judges of this kind, unfortunately, and it is not right that judges should be made to be pointed at There is no reason why a man should not be a good lawyer because he has strong opinions on Reform. But we have no right to assume that he is a good lawyer because he has such opinions, and, of the two, his legal qualifications are more important than his political ones. The assumption to which we object is quite different, and does not follow logically from that we have been considering. Even if a man's politics enable you to judge of his law, and the strength of his mind as it is dis- played on some points is a promise of general capacity, there is nothing to show that one who is willing to spend money for his party, is either a political thinker or a fit subject for professional advancement. We know something about a man who has borne the burden and heat of the day. One who comes in at the eleventh hour with a cheque-book in his pocket, or after beginning to work has been put out into the market-place, as only fit to stand there and idle, does not deserve the penny.

It would, however, be unjust to attribute judicial failures exclusively to political appointments. There is no sufficient previous teat of a man's fitness for the post of judge in his success as an advocate. The talents by which he rises to the absolute monopoly of business on his circuit are,,perhaps,_ thrown away on the Bench. In cross-examination, for instance, the object of a counsel is to confuse the witness and make him talk nonsense. Whenever you hear a cross-examiner say, "Now, let us understand this clearly," you know that he wants to throw dust in the eyes of the jury, and to prevent that clear under- standing which he professes to be promoting. But the duty of a judge is to understand the case himself, and to assist the jury to a comprehension. Some leading counsel always bully the witnesses. A judge who did so would be unworthy of his robes. • Some counsel are so accustomed to exaggerate that they cannot make a speech without moving heaven and earth. The first requisite in a judge is calmness. It is not always easy for a counsel, on rising to the Bench, to abandon all the characteristics he has so long been acquiring. At the Bar, too, a man naturally comes in for the largest share of the business which he has made his study. One excels in mercan- tile cases, and is left to them by the common consent of the attorneys ; make him a judge, and he has to try criminals, as well as every description of civil causes. Yet not only is such a man inexperienced in criminal law, but by the regular practice of the Assizes the seniors never show themselves on the Crown side. The practice a man gains in criminal law depends on the length of time that it takes him to rise from. two guineas to five or ten. Except in his capacity as Recorder, or in the occasional conduct of a heavy prosecution or defence, a Queen's Counsel never sees a prisoner. Such as are not Recorders, and have special branches of civil practice, have not even that opportunity, and when they become judges, they electrify the Bar by their summings-up and sentences. Anything we may have said last week against the unpaid chairmen of Quarter Sessions is mild, compared with the judgments which have been passed deservedly on incompetent stipendiaries. But it is an easy and ungracious task to con- demn. What we wish to do is to touch on the causes of failure, and to suggest a remedy. We have already pointed out the waste of power and re- sources caused by the excessive subdivision of counties and boroughs, and by the capricious allotment of sessions. Would it not be an easy change to remodel the legal boundaries, and apportion Sessions and Recorders to a certain number of popu- lation ? Let 'the appointments be in any responsible hands that may be selected, and let the payment be on such a scale as to attract merit and distinction. What we suffer from now in our minor appointments is the want of really good men, of men whose names are some guarantee of capacity, and whose faults might be discussed without an apology. If a chairman of Quarter Sessions, or a recorder, or a bench of magistrates passes an unjust sentence, who wonders and who cares? If Mr. Payne at the Middlesex Sessions allows the keeper of a brothel to go free on entering into his own recog- nizances, and gives a poor girl eight months' hard labour for acting as the wife of a man who had treated her as his wife, again who wonders and who cares ? A deputy-assistant- judge, who is appointed by an assistant-judge, who is ap- pointed by ratepayers, may feel himself above all responsi- bility, as it is always his endeavour to place himself beneath contempt. But it is essential that those who have the power of 'vindicating the majesty of the Law should be in a position where they may be reached by public opinion, and should not be trusted to keep up the dignity of the Law if they have none of their own to forego. It seems scarcely worthy of anything but a local press to criticize the judgments of such a man as Mr. Payne, and one would rather hope that it was the dearth of subjects during the vacation that has led to his being brought forward for yearly censure. It is just twelve months ago since he was captivated by a ballet girl, and was complimented on his impressionable nature. We believe he made some answer to the charge of susceptibility, but unless the charge of cruelty brought against his treatment of Augusta Mitchell is met by a second defence, the first will have been rendered unnecessary. The case of Augusta Mitchell is not one about which we would excite any sympathy. We are willing to take a purely legal view of it, and to appeal in sup- port of our remarks to the severest of Her Majesty's Judges. A girl, of respectable family, is seduced by a groom, and lives with him for some weeks. He leaves money with her, and she spends some of it on necessaries. Being prosecuted by him for theft, she tells her story, which is confirmed by, the inquiries of the sessions' officer, and which leads us to infer that she had no intention of stealing. Still, she had no right to take the money, and she was found guilty, with a strong recommendation to mercy. Mr. Payne, however, was in a virtuous mood. While the girl told her story, he kept up a running comment on her having bartered her virtue, and then robbed her paramour; on her having no right to claim respect- ability when she had lived with a groom, and had been re- nounced by her own grandfather. In passing sentence, he told her that she had committed an offence for which, within his recollection, she would have been hanged, and he evidently thought that he was treating her mildly in giving her eight months' hard labour. As at the same sessions two other cases of larceny were punished with three and four months, an indecent assault on a child with six months, and gouging out an eye with three, it is not quite clear what is Mr. Payne's criterion. But the severity of the sentence seems to us the least part of his offence. A judge has no right to be a common scold. Occasionally, when the law cannot punish, two or three words of moral reproof are not misplaced, and we have heard them used with much effect. But what is the use of lecturing a victim on the sinfulness of the conduct which she has so bitterly repented I If any one deserved the reproof it was the groom. Yet he seems to have left Mr. Payne's Court without a stain on his character. Fortunately for him, the case was not defended, and any one who has watched the course of un- defended cases, either at sessions or assizes, will know the full meaning of this phrase when the judge does not take part with the prisoner. Whether it would be well to adopt Mr. Fitzjames Stephen's hint, and assign young counsel to defend those prisoners who cannot afford the guinea, is a question that must often occur to the frequenters of the Courts, espe- cially if they dislike to see justice stamped and the rules of evidence violated. But in Mr. Payne's Court the choice seems to lie between a quarrel with the judge and an assault on the prisoner. Young barristers would not be equal to the work of bandying personalities with the Deputy-Assistant. The only remedy is to expose such judgments as often as they recur, and to call on the Middlesex ratepayers to move for a better legal representative. We can hardly hope that anything will be done till there is some change in the system. It is almost impossible to get at Mr. Payne, and at any other Mr. Paynes that may be scattered over the country, except through the newspapers. When the newspapers write on such a subject, they are either warned not to attack the administration of justice, or accused of personal prejudices. That such exposures do cause harm to the administration of justice, and lower the regard felt by the public for judicial dignity, is only too certain. The tone which we were compelled to take in discussing the Toomer case, must have been obnoxious to one of the Judges, and may have seemed irreverent to others. But if abuses exist in any part of our system, the scandal which results from their exposure is to be laid at their door, and the longer the con- troversy lasts, and the more embittered it grows, the worse for those who refused a proper inquiry, and would take no steps to alter peacefully what they had to yield to clamour.