LORD JUSTICE LUSH.
BY the death of Lord Justice Lush, the Bench loses its senior member, and the public a most faithful and valuable servant. Upon the retirement of Sir George Bram- well, the late Lord Justice became the sole surviving repre- sentative among the Judges of the old school of common lawyers. His experience as a practitioner of the law stretched back over almost the whole of one of the most eventful half- centuries in its history. He was a special pleader of repute in the palmy days of the art which followed the promulgation of the "New Rules" of 1834, and when it had attained a degree, of technical perfection which, noxious and offensive as it was to the suitor, required from its professors the most minute knowledge and the most faultless dexterity. After his call to the Bar in 1840, he became one of the recognised authorities, and, indeed, compiled a standard treatise upon the procedure of the Courts, which, between the first publication of his book and the time of his death, he saw twice completely revolutionised. Later on, he emerged from the dismal region of forms, technicali- ties, and precedents, in which the earlier stages of his pro- fessional life seem to have been spent, and took his place among the foremost advocates of the day, in the most serious and practically important branch of litigation. For many years he divided with the late Chief Justice Bovill the lion's share of the best commercial business in Guildhall, and down to the time of his death there was no weightier opinion in the profession than his upon a complicated question of mercantile
law. He was not an active politician, and, so far as we know, never even sought after a seat in Parliament ; and to this circumstance it was probably due that he was not raised to the Bench till 1865, when he was already verging upon his sixtieth year. Tradition does not ascribe to him any striking
forensic triumphs ; the nature of his practice, indeed, removed him from the sensational sphere of causes Mares which attract public attention, and make the renown of a certain class of advocates ; but without any pretensions to rhetorical art, he had an easy flow of well-chosen language, a singular aptitude for precise and lucid exposition, and an acute percep- tion of the legal bearings of any given state of facts, which enabled him to secure and retain a commanding position in the most coveted and lucrative department of professional work.
During a judicial life of sixteen years, Sir Robert Lush acquired a reputation which was surpassed by few of his col- leagues. As a master of the science of law, it would, no doubt, be flattery to put him in the same rank with Bramwell, Willes, and Blackburn ; he had not the subtlety of the first, the learning of the second, or the hard-headedness of the third. But as a working Judge—a Judge, that is, whose qualifications are to be measured by his capacity to transaeI both expeditiously and efficiently the every-day business of Nisi Prins and of the Court in Banc—he was the equal, if not the superior, of any of his contemporaries. He bad the art, which is possessed by so few of the Judges, of cutting short irrelevant questions, giving the happy-despatch to bad points, and trying a case with the utmost rapidity, without offending anybody's feel- ings, or perceptibly leaning to either one side or the other. His high repute as a lawyer doubtless gave to a decided expression of his opinion an exceptionally powerful effect ; but this alone would not account for his success. The truth is that, both intellectually and morally, he was peculiarly well equipped for the kind of work which he had to do. He was not only an accomplished lawyer, but what is much rarer, a lawyer who had perfect command over his resources, and kept all his learning at his fingers' ends. His patience and thorough- ness were so conspicuous and well known, that there was never the least reason to fear that a case tried by him would be " scamped," or that the parties would be squeezed by judicial pressure into an unwilling compromise. He had, moreover, an unfailing urbanity, which expressed itself in a demeanour full of dignified courtesy, not to say courtliness, which was singularly attractive and winning, in these days of relaxed etiquette. Sir Robert Lush, in short, preserved the best traditions of the English Bench. He was a strong Judge, without the least tincture of arrogance or self-assertion ; a quick Judge, and yet in the highest degree cautious and pains- taking ; and a universally popular Judge, who never " played to the gallery," or deviated by a hair's-breadth from the line of strict impartiality. When the Court of Appeal was first constituted in its present form, in 1876, it was a matter of general surprise that he was not appointed one of its members, —surprise which was greatly and justifiably increased when, upon the retirement of Lord Justice Amphlett, a year later, Mr. Thesiger was selected to fill the vacant place. Singularly enough, it was the unexpected death of Lord Justice Thesiger, in the prime of his powers, that at last made the occasion for the long-delayed and well-deserved promotion of Mr. Justice Lush ; and now, after barely twelve months' service, during the greater part of which he had to struggle, and struggled man- fully, against broken health and great domestic sorrow, he, too, has been taken away.
The task which is imposed upon the Lord Chancellor of finding a fit successor to Sir Robert Lush, is one of unusual difficulty. A kind of fatality seems lately to have befallen the Court of Appeal. Within little more than a year, it has lost, if we include the late Chief Justice and Chief Baron, no less than five of its members by death, while a sixth has just resigned. Such a succession of calamities would be a serious blow to any tribunal, and they are peculiarly deplorable when the Court affected by them is, as in the present case, the Court of Appeal, whose composition is of paramount importance, and whose effi- cient working depends, to so great a degree, upon the experi- ence of its members and the continuity of its decisions. Lord Selborne has hitherto adopted the rule, to which- it may be hoped that both he and his successors will, as far as possible, adhere, of selecting the Lords Justices of Appeal from among the Judges of the High Court. The Court of Appeal will be far more easily able to command the confidence, not only of the Judges, whose decisions it revises, but of the profession and the public, if it is systematically recruited from those who have already gained experience, and proved their capacity in the Courts of First Instance. It is not, however, by any means desirable that promotion should take place according to any rigid rule of seniority, such as was, to some extent, followed in the first appointments to the Appellate Court, and incidentally recognised in the selection of the late Lord Justice Lush. There is, we believe, at the present moment, with the excep- tion of Sir James Hannen, who is already, ex officio, a member of the higher Court, no Judge on the Common-law Bench who has served for more than ten years. Bat, from among their number, it ought not to be impossible for the Lord Chancellor, whose judicial appointments have hitherto given general satisfaction, to choose one who will bring to the delicate and arduous duties of the Court of Appeal the mature knowledge, the severe impartiality, and the practical common- sense which will always be associated with the name of Sir Robert Lush.
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