THE LAW OFFICERS OF THE CROWN.
SIR RICHARD BAGGALLAY'S appointment to the Court of Appeal has naturally been the occasion of more talk than is usually called for by so matter-of-course an event as the promotion of an Attorney-General. The Supreme Court of Judicature is still so young an institution, that everything con- nected with its start in life has an interest for the public, as well as for the profession. Consequently, the first appointment that has been made under the Act has been canvassed with more regard to general principles, and somewhat less of exclu- sive consideration of the particular lawyer concerned than is common in such discussions. It implies no disrespect to Sir Richard Baggallay to say that better appointments to the Court of Appeal might easily be imagined. The Law Officers of the Crown are necessarily men in the front rank of their profession, but they are not necessarily the most distinguished men in that front rank. They have a recognised right, however, to the fore- most places on the Bench. They are put above the heads of the Puisne Judges, if either of the Chief Justices or the Chief Baron dies while they are in office, and the seats in the new Court of Appeal will apparently be held to come under the same rule. As a matter of course, they have an equal right to a puisne judgeship, if they are willing to take it, and the result is that it is quite conceivable that the Judges in the Court of Appeal, and the Chiefs in each of the divisions• of the High Court of Justice, as well as a certain. proportion of the Puisne Judges, may be not merely men who will leave no mark on their respective Courts, but men of whom, at the time of their appointment to their respective Courts, it is perfectly well known that they will leave no mark there. When the whole judicial sys- tem has been, and still is, under review, it cannot be expected that an arrangement by which this state of things is pos- sible should escape criticism. More venerable traditions than that which regulates the advancement of the Law Officers of the Crown have been challenged and disregarded in the Judi- cature Act, and how to obtain good Judges to administer the law is a consideration of as much importance as how to obtain good laws for them to administer.
The main argument against the vested claims of the Law Officers of the Crown has already been indicated. The Attorney and Solicitor-General must be in Parliament, and they must be of the same political party as the Government under which they hold office. There is no difficulty in combining these two requisites with a fair degree of legal eminence. A barrister rarely enters Parliament until he has become a Queen's Counsel, and has got on sufficiently well to make solicitors believe that a seat in the House of Commons means promotion, not dis- traction. A practising barrister who had not yet made his reputation could hardly do a less prudent thing than announce that he meant to take up politics before he had mastered law. But the qualifications that make a man a good lawyer for Parliamentary purposes, do not at all ensure that he will be the best lawyer for judicial purposes. Under a system in which juries play so large a part as they do in English law, advocacy has at all times a great advantage over knowledge of law or soundness of judgment, and this advantage is necessarily exaggerated when the jury to be con- vinced is the House of Commons. If the Government had only their own information to consider, they might prefer weight of opinion to fluency of statement. But it is often of less importance to a Minister to have a man at his elbow who will guide him rightly, than to have one who will give good reasons for having guided him wrongly. This necessity of choosing Law Officers on grounds which have little or no con- nection with the qualities that constitute fitness for the Bench must, under any circumstances, greatly narrow the field of choice ; and when it is further remembered that out of the few men who possess the requisite Parliamentary qualifications, only those who are Liberals or Conservatives, as the case may be, can possibly be taken, the wonder, perhaps, is rather that Attorney and Solicitor-Generals make such good Judges as they do, than that they do not make better ones. Would it not be well, then, to put aside the fetters which have hitherto hampered a Minister in his choice of Judges, and to let future Attorney and Solicitor-Generals know that their posts, if they are not precisely their own reward, are, at all events, a reward which must be fully reaped during their tenure of office ? The plan of sending to the Bench lawyers who are not in Parliament has been tried of late years with eminent success ; might it not be extended, until a Minister, whenever a Judgeship of any kind fell to his disposal, should feel himself trammelled by no personal considerations, but be free to pick out from the whole Bar the man whom past achievements or the opinion of the profession pointed to•as the best occupant of the vacant place ? It is a tempting idea, but there are one or two things to be said on the other side which make it doubtful whether the change would, on the -whole, be an improvement.
' In the first place, even those who expect most from such a change cannot maintain that it would be an unmixed good. We will assume that the Minister invariably rises superior to any considerations of advancing personal friends or rewarding political services. But even then the improvement will entirely lie in the direction of giving us better Judges. The change would almost to a certainty have the correlative result of giving us worse Law Officers. What is it that tempts men to spend their nights in the House of Commons, as well as their days in Court, or to add the work of an Attorney or Solicitor-General to their own private practice, if it be not the knowledge that these offices are the sure stepping-stones to the greatest professional prizes ? Dissociate the two ideas, and the probability is that a different type of barrister will by de- grees find an entrance into the House of Commons, and being there; will become almost of necessity the legal advisers of the Government. Ministers can but take what is within their reach, and if the Parliamentary barrister is a man who cares more for politics than for law, or has chosen Parliamentary life as the road to a kind of promotion which, if it be less valuable, is, at all events, gained with less labour than a seat among the Judges, the Minister will have no choice but to put up with him. If he be charged with making bad appointments, he can but shrug his shoulders, and say,' So long as I could tempt men by the certainty of the best Judgeship that I had at my disposal, I had no difficulty in finding Law Officers who, if they were not the first, were among the first lawyers at the Bar. You have prevented me from offering that prize any longer, but you have not released me from the necessity of choosing Law Officers who • are already in Parliament or can easily get there. It is not my fault that the men who used to enter the House of Commons almost as a matter of course at a certain point in their careers now do so no longer. That is part of the reform which you yourselves have forced upon the Government, and though I may regret the consequences, it is not for you to complain of them." If the professional value of the Attorney and Solicitor- Generalships is lessened to their holders, the ultimate result must be that the legal value of their holders to the Govern- ment will be lessened in proportion. It is a very grave question whether the country would not lose more by the deterioration in its Law Officers than it would gain by the presumed improvement in its Judges. Considering the immense importance of the matters which come before the Law Officers of the Crown, matters which must be decided by the Cabinet at short notice and with absolute secrecy, matters which the Cabinet cannot decide without taking pro- fessional opinion on what the law of the case is, any change that permanently saddled the Government with an inferior class of Law Officers would be a change of the most serious import. Probably, however, some expe- dient would be devised by which this particular change might be avoided. Either the Cabinet would forego the advantage of having their decisions upon points of international or muni- cipal law defended in debate, as well as guided in council, or the Law Officers would be retained to discharge the former functions, while the latter would be made over to a class of Government Chamber Counsel. Both these expedients are open to the objection that they would alter for the worse the material of the House of Commons. England is trying with some checks and under many disguises the experiment of government by a single Chamber, and she is trying it under conditions which constantly tend to fill that single Chamber with men of a poorer stamp than have heretofore composed it. Any change which lessens the inducement to men of the old type to go into Parliament helps on this deteriorating process, and so augments the risk of the experiment. The legal element may not be the best element in the House of Commons, but it is incomparably better than many of the other elements which are to be found there. Even the gain to the Bench which would follow upon the abolition of the restrictions which at present fetter the Minister's choice would not be without its drawbacks. The success of English administration has been
largely,owingto the absence of that rigid demarcation between the:Legislature and the Executive which exists in most other constitutional-systems. There-are advantages in having Judges who know :what the House of Commons is like. If the Parlia- mentary experience which so many of them possess were entirely wanting, there would be more sneering at the language of statutes, and less, perhaps, of honest endeavour to get the best meaning out of them.
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