WHO IS TO BE LORD JUSTICE?
PARTLY owing to the universal absence of the lawyers, partly to the want of any man whose claims to the place seem paramount, there is very little speculation about Sir C. J. Selwyn's successor. Under all the circumstances, this is not surprising, and yet the post is one of sufficient prominence to make it intensely significant. It is not only the accident of our having both the law officers of the Crown chosen from the common-law bar that deprives us of what would otherwise be the principle of natural selection. The same thing happened to the Conservatives a year and a half ago, when Sir John Karslake and the present Mr. Justice Brett were Attorney and Solicitor-General, and the Lord Justiceship was vacated by Lord -Cairns being raised to the woolsack. We grant that the Govern- ment of the day had a resource which we have not; they were able to reward the long and distinguished services, the tried and pre- eminentmerits of Vice-Chancellor Wood. But then the Conserva- tive lawyers had just had an unexampled run of luck ; Cairns, Fitzroy Kelly, Bovill, Rolt, Selwyn, Malins had been provided for within a year. On the Liberal side we have had no such clearance. Our last Attorney-General who has risen to any important post is Lord Westbury. Before the appointment of Vice-Chancellor James, who has not put himself forward at all in political world, we had not filled up any place in the Court of Chancery for nearly fifteen years. Our last common- law judge is Mr. Justice Lush. And yet we find ourselves in such a position, that our first high appointment will pro- bably be given to one who is not a politician, who has made a good figure at the Bar, but is not free from rivals, whose -experience as a judge is brief, and not exceptionally brilliant. We do not say that, as things stand, a better appointment is possible. There are good reasons why Sir Bounden Palmer should not take the lower room, while a very short time must
place him in the highest. There are objections to the _appointment of Lord Westbury, even if he would accept the office. In the case of Lord Cairns, too, there are grave scruples. One possibility remains, but it is barely a possibility, and we hardly know if we do well to hint at it. It will be safer to discuss the other chances first, and to come round to that if everything else fails us.
It is perfectly clear that a Lord Justice of Appeal in Chancery must command the undivided confidence of the legal profession. The Court in which he sits is in a large proportion of cases the Court of Final Appeal ; the mass of business brought into it requires a despatch, a promptness which the House of Lords does not even attempt, and the individual judgment of its members is much more steadily brought into play than is the case in the Exchequer Chamber. The constitution of the latter Court seems to have been dic- tated by the idea that in the multitude of counsellors there is safety ; while the House of Lords has, of course, that prestige which belongs to the character of its members, has the greatest opportunities for deliberating, can call in the aid of all the judges, and is not bound by their opinions. There is this, moreover, to be said, that both the House of Lords and the Exchequer Chamber are something more or something less than Courts of Appeal. In the one, a man is not appointed on account of his judicial powers ; in the other, he sits to-day on those brethren who will sit on him to-morrow. The work of the Lords Justices, however, is purely and ex- clusively appellate, and this makes it the more important that when a man is not chosen for the court on account of the same qualities as might raise him to the House of Lords, he should be a first-rate lawyer. This was the course pursued with regard to the two Lords Justices who sat throughout the first eighteen years of the Court's existence, Knight Bruce and Turner. Neither of them had been in political office, only one of them had sat in Parliament. Since their time the post has apparently been considered one which ought to be conferred on law officers of the Crown, and Cairns, Rolt, and Selwyn have made us look impatiently on the present limits to our choice. But it is here that the diffi- -culty arises. As we have said, it is not likely that Sir Roundell Palmer will accept anything short of the woolsack. Our only Chancery barristers in Parliament are Mr. Jessel, Mr. Hughes, and Mr. Osborne Morgan, the two latter of whom are absolute juniors, being in the last batch of Queen's Counsel, while the first has not yet added Parliamentary position to his great legal success. It would be far too dating an experiment to take a Chancery judge from the common-law side of West- minster Hall, though Lord Lyndhurst passed from the Mid- land Circuit to the Mastership of the Rolls. And yet even here Liberals are not so well represented as we might expect to be. We have Sir R. Collier and Sir J. Coleridge, Mr. Denman and Mr. Vernon Harcourt, Mr. Davison and Serjeant Simon, Mr. Henry James and Mr. Watkin Williams, but more than half of these are new men, and of them it is too early to speak with confidence. The present prospect is not, on the whole, a cheering one.
If, then, we are driven from the purely political field, we must make our choice between two other alternatives. We may either fix upon a lawyer pure and simple, or we may select one who, having risen as high as politics will take him, is now independent of their help. In the first class, Vice- Chancellor James seems the favourite, and we have no doubt that he will make a good Lord Justice. It would have been better if he had sat longer as Vice-Chancellor, and if his reputation at the Bar had not been so much overshadowed by Sir Roundell Palmer and Mr. Jessel. But we do not think this a sufficient reason for putting Mr. Jessel over his head. If the other alternative be adopted, the choice is larger, but it is not so free from grave embarrassment. First of all, we may doubt whether any ex-Lord Chancellor would feel it con- sistent with his dignity to accept anything below that office, though we may cite the example of Lord Lyndhurst, who took the post of Chief Baron of the Exchequer after giving up the Seals. But this is not the only difficulty. With almost all the men of this class there is some political objection. Take the case of Lord Westbury. His conduct with regard to the Irish Church does not make it more easy than it otherwise would be to approach him. Take the case of Lord Cairns. Would not the offer of such a post look as if the Government was holding out some inducement to a practised debater to abstain from expressing himself strongly on points of difference ? We know very well that when the same post was offered to Lord Cairns on the last vacancy, an assurance was given him that nothing of the kind was expected of him, but he was not then leader of the Opposition in the House of Lords. He could not possibly combine the two functions. The offer of the Lord Juaticeship then might have left his hands free as one of the most prominent members of the Opposition, but it would wear a very different aspect now. One name, indeed, remains, but with that there are other and more peculiar difficulties. The greatest of all is that the suggestion can come from no one but from him who would naturally be the last to make it. We do not venture to throw it out : it only occurs to us as a possibility. What if Lord Hatherley himself were to return to the Court over which he presided for eight months, and for which he is so eminently fitted, thus enabling Government to strengthen its hands in the Upper House by the introduction of Sir Roundell Palmer without losing the immense help it derives from Lord Hatherley himself? The point is one solely for his consideration. He would naturally reflect where he could be of most service. He would ask himself whether the place he now fills, and in which he has rendered himself eminently useful to his party, is calculated to employ all his powers to the best advantage. In the long run, we think he would prefer the place from whence he rose, but no one can expect that he should wish to return to it already. To give up the position of Lord Chancellor from such motives would be an act of unparalleled generosity, and we should not have mentioned it, if we thought it would also be one of self-sacrifice.
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