19 MAY 1866, Page 7


TH'English system of Parliamentary government by party, aElong with its numerous advantages, has some counter- vailing defects. Among these we may certainly reckon the danger that questions seriously affecting the social well-being of the community, and without any political significance, may be made the battle-ground of contending Ministries and Oppo- sitions. Against this risk it is impossible practically to guard. We have only to trust to the good sense and good feeling of the Legislature; and, on the whole, we have not much reason to complain that our confidence is misplaced. Occasionally, however, the restraints of duty are incapable of checking the instincts of party animosities. Considerations of public in- terest, of justice, and honour are for the time abjured; a "free fight" ensues, and when all is over, and passions have cooled down, the combatants too often find to their sorrow that the sole result of their antagonism has been a serious national detriment. It must be admitted that some of the Conservatives are most flagrantly addicted to this vice of debate. Mr. Whiteside, for instance, views every measure of

• which Liberals have been the originators as a bull looks at a

red rag, —he shuts his eyes and lowers his horns, and charges -Slap at the object of his disgust. When personal considera- ,tions or interests are added to party dislikes, and when the

,stibiect of contention is an Irish one, we can readily picture to ourselves the hurlyburly. And a hurlyburly it was a few :nights ago, when it was proposed by some Irish Liberal mem- -

'laers to elicit from the Government an expression of opinion will regard to the present condition of the Irish Bench.

The present chief of the Irish Common Law Bench is the Right Hon. T. Lefroy, who was born in 1774, and called to the Bar in 1797. He is thus ninety-two years of age, and though he has for a very long period been qualified to receive his pension, he continues by choice to discharge the duties of his office. During the past ten years at least the manifest failure of his powers has been the subject of general criticism, In 1856 his case was brought under the notice of the House

• of Commons by Sir John V. Shelley, and he was then spoken of as a man who had once been distinguished by learning, eloquence, and an acute intellect, but whom age—he was then eighty-two—had utterly prostrated. In Ireland at that time it was understood that there was a very intelligible reason for the Chief Justice's retention of place. He was a Tory, and he was naturally anxious that he should be able to place at the disposal of his own party, and not at his oppo- nents', the highest judicial position in the gift of the Crown. But in 1858 a brief gleam of posterity shone upon the Tory party. Lord Derby came into power, and, as is well known, one of the first acts of patronage which he expected to be able to exercise was the bestowal of the Chief Justiceship. But the aged occupant remained immovable. No inducements could prevail upon him to resignn. It was said that his mind, enfeebled with years, was influenced by a settled and inexpli- cable dislike of his anticipated successor, the ablest advocate among Irish Conservative lawyers, and who, both from his posi- tion at the Bar and his lengthened Parliamentary service, had merited the highest promotion. Before persuasion had time to work any change in the obstinate old man the Tories resigned, and Lord Palmerston's Administration took a new and long lease of power. Eight years passed, and day by day the powers of the Chief Justice became more impaired, The scandals arising from his mental defects grew more flag- rant and frequent, and the murmurs of the public more loud.

At last events which have occurred during the past twelve months have necessitated a public exposure of the incapacity and obstinacy in high place. Two Irish members, Mr. Bryan and Mr. Maguire, have brought the matter before the House of Commons. They support their allegations not only by vague statements of public discontent, but by reference to individual facts, which the Attorney-General for Ireland reluctantly attested of his own personal knowledge. These facts, fatal to the judicial character of Chief Justice Lefroy, Mr. Whiteside, bearing no malice, it must be owned, and faith- ful to his party ties, feebly endeavoured to explain away. His defence smacked Penh of that roaring Nisi Prins style which is, or used to be, popular with Irish juries. The same tricks were played with the evidence, the same imputation of motives to opponents was conspicuous. But this species of dialectic does not suit the House of Commons. The grave and particular evidence of the Attorney-General as to facts which he had himself witnessed is not confuted by its being politely termed "a miserable cavil," and the rebuke which the Irish Solicitor-General very severely administered to Mr. Whiteside for his unjustifiable omission of an important clause in a letter which was read by him was applauded by the House. The charges advanced so specifically against the Chief Justice may be regarded as fully proved, and entirely justify the Government in the implied menace that unless a quiet settlement of the question be arrived at by the resigna- tion of the venerable subject of debate, the extreme step of a Parliamentary address praying for his removal will be resorted to.

Judges, in common with annuitants, rich bachelor uncles, and maiden aunts, and the like, appear often to have all their energies renewed with their elevation. One would be inclined to suppose that the incessant and unhealthy toil of a lawyer in large practice, conjoined in many cages with unwearying political service, cannot leave a. man of middle or advanced age very well prepared for the arduous duties of the Bench. Facts, however, would seem to lead to an opposite conclusion. We can point to no profession in which the powers of the most successful workers have been as a rule preserved so long un- diminished. Whether we look to the great judges of the last cen- tury and of still earlier periods, as we find their stories told in Mr. Foss's interesting work, we find that the greatest of them were men who lived far beyond the ordinary term of human life. It is true that in most cases these men ceased to perform their judicial services for some considerable time before their deaths, and that therefore their cases do not, properly speaking, fur- nish Chief Justice Lefroy with a precedent for his obstinate and unreasonable grasp of place at the age of ninety-two. Certainly it was never contemplated, when a most just con- stitutional reform deprived the Crown of its arbitrary power of appointing and removing the judges, and fixed their tenure of place quamdiu se bene gesserint, that the inevitable inca- pacity of extreme old age should be permitted to hamper the administration and bring the Courts of law into contempt. For it must be that the pitiful sight of an infirm old man, feebly faltering out at the dictation of another the words of a solemn sentence which he could not read correctly, or affirming with a gasp of relief an important judgment which he was utterly incompetent to comprehend the bearings of, renders that justice which is supposed to be dealt out impartially between -man and man an object of public scorn and ridicule. The first essential of justice is competence on the part of thô judge to understand the facts and to apply the principles of the law to those facts. Otherwise there must be a default of justice. No sophistry can get over this, and as regards English law, a default of justice is not confined in its bad effect to the individual instance in which it has originated. Case-made law acts upon our social scheme as directly as any statutory enactments, and thus an evil precedent, strengthened by a judicial affirmation, is doubly dangerous. The case against Chief Justice Lefroy rests not only upon the very obvious' conclusion that a man of ninety-two years of age cannot be equal to the laborious duties of a judge, but upon facts which can neither be denied nor evaded. It will not avail to say, as Mr. Lefroy has said, in defence of his father, and as other Tories have repeated, that many great men have displayed eminent powers at an advanced age, or to cite the names of Lord Mansfield in the last century, of Lord Lyndhurst and Lord Tenterden in this. We cannot argue from these parti- culars to the general conclusion that all judges of eighty or ninety are likely to remain clear-headed as ever, nor is it likely, if we take the trouble to consider the mental calibre of our octogenarian acquaintance, that we should choose them

as the ablest portion of the community for purposes of arbi- tration or advice. It must also be borne in mind that Chief Justice Lefroy far exceeds in age any of those illustrious men whose cases were quoted to support his, and that the inter- mittent business of the House of Lords' appeals tax the bodily and mental energies very slightly in comparison -with the painful stretch of attention which the presidency of the Queen's Bench entails.

Viewing the ease as the very first in which a serious at- tempt on the part of Parliament to remove a judge for in- capacity has been resorted to or even contemplated, we deeply regret that Mr. Whiteside and his followers should have chosen to make it a party question. Surely Conservatives, no less than Liberals, are most intimately concerned in the main- tenance not merely of the purity, but also of the dignity, of the Bench. We cannot conceive a more pernicious state of things than would be encouraged by the belief that, no matter how incapable or unfit for his high office a judge may be, he will be stoutly championed in his retention of place by his party. The obstinacy of dullness, or caprice, or even worse motives may then securely defy all check, and the independ- ence of judges, useful only as a means to secure untainted justice, may prove fatal to that end which it was intended to serve. We are glad to see that Sir Hugh Cairns, agreeing

• with the Government in this point, is in favour of fixing a maximum of age for all judges on the Bench. The limit might be seventy-five or eighty, as might on consideration seem most convenient, but it should be invariable. The ad- vantages of adopting such a rule are very plain, and the ob- jections which have been raised to it by Sir George Bowyer and others appear singularly futile. In the very rare instances in which a judge survives the limit with undiminished mental powers, there is a field of labour eminently fitted for such men. The Appellate jurisdiction of the House of Lords has long been far too weak in the number of the law lords, and perhaps no bet- ter method of strengthening it could be adopted than by promot- ing to that House the judges who have passed the limit. The work would be light enough, and at all events the scandal of entrusting important issues to one incapable old man would be effectually avoided. It is probable that the unpleasant and injurious exposure which the pertinacity of Chief Justice Lefroy has occasioned, will compel Parliament to consider seriously the question of imposing some such limitation as we have mentioned ; we trust it will meet with no factious oppo- sition. The present unseemly contest has, we fear, done mischief by degrading the character of the Irish Bench, but it is a serviceable warning, It behoves us to see that the occasion of such a contest shall never again arise.