VERBAL DUELLING ON THE BENCH.
WHAT has come over our Judges, that they, of all men, are losing their hold of that bridle which is even more essential for the mouth of judgment than for the mouth of the horse and the mule, too hastily declared by the Psalmist to have "no understanding ?" Luther pronounced the Epistle of James to be an epistle of straw, but that was because Luther was an impetuous preacher, and could not enter into an Epistle which seems expressly designed to express a judicial view of human morality. The Lord Chief Justice is great in classical allusion. Even he, no less than Lord Penzance, might profit even more from a little study of the third chapter of the General Epistle for which Luther entertained so sovereign a contempt. The very opening of it is painfully applicable to the present position of the English Bench. "My brethren, be not many masters, knowing that we shall receive the greater condemnation. For in many things we offend all." That, certainly, is exactly the position of the Bench, as the English public now regard it. They would very earnestly appeal to the Bench not to be so many masters, to keep up at least the appearance of outward unity, and would say that, owing to the indecently loud quarrels with which our Judges favour the public, they "in many things offend all." And the cause of the offence is equally well de- fined by the sober and judicial apostle. When the Lord Chief Justice asks Lord Penzance, in the pamphlet he has just fired- off against him, whether it is possible that so small a matter as having been declared to assume a jurisdiction where he had none, "can have kindled such fierce and headlong wrath," he may perhaps, in spite of his preference for classical allusions, have had running in his head St. James's remark that the tongue, though "a little member," is one that " boasteth great things. Behold how great a matter a little fire kindleth ! And the tongue is a fire, a world of iniquity." "The tongue can no man tame ; it is an unruly evil, full of deadly poison." Yet the Judicial Bench is the last place where we should expect to find such untamable tongues, and the last place certainly where there is . any safety from them. The English Judges have till now stood high above the world. Even when they did injustice, as Lord Eldon, for instance, not unfrequently did, they did it with a dignity and a stately self-confidence that almost per- suaded the world that it was justice, and quite persuaded the world that if it were injustice at all, it was injustice with a very deep root in the institutions and history of the past. But if the Judges are to take to verbal duelling, as they do now,—if Lord Penzance, in restating the reasons for a judgment annulled by the Court of Queen's Bench, is to stud his state- ment with sharp little satiric pricks to the vanity of the Lord Chief Justice, and the Lord Chancellor is to discharge Orders in Council at the Lord Chief Baron, and the Lord Chief Baron to direct a battery against the Lord Chancellor, and the Lord Chief Justice is to reply to Lord Penzance in a pamphlet almost as full of sneer and jibe as if it were an attack by Swift on an adherent of Walpole's —we shall soon have no more veneration for the Bench of judges than Par- liament would feel for a tribunal of Parliamentary law consisting of Mr. Lowe, Sir Robert Peel, Mr. Roebuck, and Mr. Parnell, speakers who might be trusted to devour each other with even more than the voracity of the Kilkenny cats. The most distinguished of our Judges, just at present at least, are acting very much in the same way, attacking each other with the acridity,— and we must admit, with something more than the ability,— of modern Parliamentary debaters, and so doing all in their power to diminish the public respect in which the Bench is held. If Judge answers Judge, and Court refutes Court, what will be the impression left on the mind of the average public as to the great edifice of British law ? Will it not be supposed to be as haphazard and capricious an affair as political opinion itself ? Will the defeated suitor, who is sure that he has not got justice, be even inclined to acquiesce as final in the statement of the law, when he sees how the Judicial Committee of the Privy Council is divided against itself, how the Queen's Bench puts it down as an " inferior " Court, how Orders in Council a couple of centuries old are vamped up to over-awe a brother-judge, how little that brother-judge makes of the obsolete weapon, how the Queen's Bench rebukes the Court of Arches, and the Court of Arches despises the Queen's Bench, and finally, how the Lord Chief Justice of England comes out as a pamphleteer, because he has not the fortitude to endure the sting left by the Dean of Arches' taunts.
No doubt, in relation to this last quarrel, the Dean of Arches was the first to blame. Whether the Lord Chief Jus- tice was right or wrong,—a point on which, we gather, that he is himself in no little doubt,—he was compelled to decide the law on such knowledge as he had ; and whether he was right or wrong in granting a prohibition against the execution of the Dean of Arches' decree, he has undoubtedly at least a plausible case on his side. Lord Penzance may have completely refuted that case. Of that we are no adequate judges. But whether he did so or not, he should not have interlarded his judgment with biting sarcasms against a brother-judge, even if that Judge had been guilty of sneering at himself, much less when no such offence had been committed. But if Lord Penzance was originally wrong in the measured sarcasm of his judgment, the Lord Chief Justice con- demns himself in every censure which he pours on Lord Penzance. His sarcasm, at least, is not measured. It is biting and carefully secreted venom, which he pours into the Dean of Arches. There is not a sting which he so art- fully prepares for the Dean of Arches which does not recoil upon himself. He is so eager for revenge, that he forgets that that revenge is taken on himself as well as on his enemy. The unseemly contest injures the esteem in which both are held, but it will injure most him who was held in most esteem before, and who has not even reserved his anger for the measured language of the Bench, but poured it forth in a superfluous pamphlet of angry sneers and angrier confessions.
Surely the greatest of a Judge's qualifications is a certain fortitude and equanimity, an. indifference to opinion, so long as he discharges his own duties well to his own conscience,—a power of ignoring criticism, except so far as it assists him to form better judgments,—of rising wholly above personality,— and remembering that Justice was proverbially represented as blind, in order that she might hear with the greater impar- tiality and freedom from favour. And amongst the tempta- tions to which she should always be blind, is the temptation to defend herself against attack. The Judge who shrinks from public censure, is sure to be biased in his judgments;— biased, it may be, not for, but against the quarter from which the public censure proceeds, but still biased,—less able than before to revise his judgment, if he is wrong,—less able than before to take the side of his censurers when they are right, and above, all, less able than before to command that respect which is only accorded to reticence, self-confidence, equanimity, and the sobriety of a cool, a convinced, and a tranquil judgment.
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