THE retirement of Chief Justice Erie is an event which will be deeply regretted, both by the legal profession and by the public. He is the last judge of a school which a few years ago was largely represented on the judicial Bench, by such men, for instance, as Coleridge and Patteson, who commanded universal respect and esteem apart from their judicial position. Possessed of thorough legal knowledge and sound general culture, they were yet more distinguished for the blameless integrity of their lives, and for the genuine humility with which, while fully conscious of the importance of their position, they strove to discharge their duties. There may be such men still upon the Bench, but it requires time to bring such rich fruit to perfection. Sir W. Erle had been a judge at least twice as long as any of his colleagues, with one single exception, and the majority of them have been appointed within the last six or seven years. To very few men is it given to preserve the full command of their bodily and mental faculties beyond seventy years of age ; fewer still possess those moral qualities which render men like the late
Chief Justice the brightest ornaments of our social system. Sir W. Erie has set an example of integrity and straight- forwardness, admirable because unfortunately rare, in resigning when he thought the right time come for himself personally, without regard to the fact that the Government was in the hands of the party to which his own opinions were opposed. It is perhaps hardly fair to impute blame to the Government for appointing as his successor a gentleman whose political claims are so strong as those of Sir W. Bova mad who enjoys the universal good-will of the Bar. At the same time it would be affectation to assume that better ap- pointments could not have been made from among the exist- ing Judges ; and it is scarcely possible that an advocate, suddenly raised to the Chief Justiceship, can retain for the Court of Common Pleas that superiority over the other two Courts which it has enjoyed for several years past. But a political career is one of the recognized roads to the judicial Eench, and we might well be content if no worse appointments were ever made on political grounds than the two which have as yet been made by Lord Derby.
It is announced, however, that the Government, not content with the good fortune which has enabled them to give sway so many rich prizes both in England and Ireland, intend to propose the creation of an extra judge to each of the three Courts of Common Law. This is no mere political move, for it is beyond doubt that under the present system the Judges are overworked : and it ought in fairness to be added that among the gentlemen designated by rumour for the new judgeships one or two are not Conservatives. But it is a very serious question whether the proposed measure will confer advantages on the administration of justice at all proportion- ate to to its cost, whether the pressure on the existing Judges could not be relieved, and other ends attained also, by means rather less simple and much less expensive than the ap- pointment of three new judges with 5,0001. a year apiece. The main ground on which it is assumed to be necessary to appoint extra judges is the alleged need of a new circuit. It is unquestionably true that the present Northern and Midland circuits are unreasonably long, and that in summer, when all the causes not ready for trial in London before the circuit are taken to be tried in Surrey, the Home circuit is also too long. Birmingham also is urgently in need of assizes, and one or two other large towns might eventually put in a similar claim. It is only three years ago that Yorkshire was taken from the Northern circuit and added to the Midland, in consequence of the rapid increase of business in Lancashire, two counties being at the same time transferred from the Midland to the Norfolk circuit. Lancashire alone has now as much business as any entire circuit, and it is very reasonably proposed to separate it from the other northern coun- ties into a circuit of its own, those counties -with the re- transfer of Yorkshire forming henceforth the Northern circuit. Fcom this point the difficulty begins. . The Midland circuit is cut down to very small proportions ; and to compensate it by the establishment of assizes at Birmingham would, it is said, mate- rially injure the small Oxford circuit, since a large half of the Birmingham business goes to Stafford. According to the last Sunday Gazette, the Judges have agreed to recommend a plan -which succeeds in interfering with every single English circuit, and increases the South Wales circuit just enough to furnish an excuse for sending a second judge. If the whole system were to be created anew, it is conceivable that a few persons could be induced to believe the new scheme attributed to the Judges to be a convenient one ; but even on its abstract merits it is no better than the present arrangement, except as regards the north, while it affects the interests of every member of the Common Law Bar, and of every attorney who is in the habit of employing particular counsel. If any great public advantage were to be gained, the legal profession would of course submit, but to a plan not very good in itself and highly detrimental to them, they may reasonably be expected to offer strong opposition.
It will be almost universally admitted that two more judges are wanted to go on circuit, whether there is any real need of a third or not ; it by no means follows, however, that the proposal of adding a judge to each Court ought to be accepted. Circuit only lasts during about ten or twelve weeks in the year, and though an important item in the work of the Judges, ought not to be brought into undue prominence in comparison with their other occupations. During about six- teen weeks of each year the three Courts are sitting in Banco, to hear and decide questions of law. The proper complement of judges for the purpose is four ; thus some one judge Of
each Court is at liberty to sit for the trial of civil causes, or at the Central Criminal Court. Eleven weeks of the year are included in the long vacation, and give the Judges their well earned holiday. During most part of the remainder, about thirteen weeks, there are two judges of each Court sitting in London to try causes ; and the winter criminal assize, for about half the counties in England, has also to be provided for. If the Judges had no other duties than these, there -would very seldom be any difficulty about finding a suffi- cient number to do all the work arising ; but they have- another most irksome occupation, technically called "sitting- at chambers." A judge of each Court has now to spend every afternoon of the working season in London, sitting privately to transact business connected with -the progress of actions before trial, much of it formal, and scarcely any of it important.. As the fifth judge of each Court is always fully occupied during term time in the way before mentioned, it becomes. necessary for one of the four who are sitting in Banco to quit his post in the middle of the day and go off to chambers, leaving three to constitute the full Court, while he sits for hours listening to the wrangling of attorneys' clerks. It is a great question whether much of this routine business might not be abolished altogether, but at any rate it might be taken off the Judges' shoulders. The analogous duties con- nected with suits in equity are discharged by subordinate- officers, and there is no sort of reason why the Common Law Judges should not be relieved in the same way. If the- Masters of the several Courts, officials now very -com- fortably salaried and but lightly worked, were insufficient- to discharge these duties, an addition to their number might easily be made, and four Masters cost less than judge. Independently of the consideration of public economy, which ought neither to be forgotten nor unduly pressed, it is unseemly that great functionaries should be burdened with routine duties which can be perfectly well discharged, as experience elsewhere shows, by men of inferior rank and qualifications. Were the Judges relieved from attendance at chambers, except when really important points. arose, there would be seldom any vacant seat in the full Court. It must not be forgotten, however, that there is another Court in Westminster Hall besides the three of which we have- spoken hitherto, or rather two Courts under one judge. Sir James Wilde has both the Probate and Divorce Courts to preside over, and as the questions that come before him ought especially to be decided quickly, the evil results of too much work and of consequent delay are keenly felt. Even so accomplished and hard-working a judge as Sir J. Wilde cannot properly keep pace with the influx of fresh causes ; and it has long been thought that the time was come for constituting the Divorce Court, with the full number of judges contemplated at its institution. For certain purposes three judges are required, and as Sir J. Wilde has no col- leagues, he is obliged to borrow from the Common Law Courts-- judges who are all the time wanted in Banco. The appoint- ment of two subordinate judges to the Divorce Court would relieve Sir J. Wilde of some part of the repulsive duties which now fall on him alone, and would ensure the speedy adminis- tration of justice in a most important branch of cases. They might also go on circuit with their common law brethren, and thus save all necessity for the creation of new judges to the three Courts. When this scheme was first mooted it was. believed that Dr. Lushington was about to retire, and it was- suggested that the Ecclesiastical and Admiralty Courts, light in point of work, but most important in-the interests involved, might be reunited with the Probate and Divorce Courts,. which, so far as they existed at all before 1858, were subordi-- nate parts of the Ecclesiastical Court. Such an arrangement.- would give Dr. Lushington a thoroughly competent successor, would remove the objection that Sir J. Wilde, if provided with two colleagues, would have very little to do, and would save the nation the salary of a judge. Even if it were not thought desirable to await Dr. Lushington's retirement, the nation would lose but little, and Sir J. Wilde would gain an interval of less overwhelming labour. It is possible that this- scheme might not eventually be found to answer the needs of the country, and that extra judges must, after all, be appointed to the Common Law Courts ; but inasmuch as the Divorce- Court cannot long go on in its present state, it is surely better to begin -with what is inevitable, relieving the Judges at- the same time of their routine functions, than to leave these- evils untouched, and make a costly addition to the judicial staff before it is proved to be necessary.