LEGAL ANARCHY.
LORD JUSTICE MELLISH'S successor in the Court of Appeal is the gentleman to whom common consent had pointed. Mr. Cotton, who has been for many years in the front rank of Chancery lawyers, and who might, in fact, since Lord Selborne and Sir George jessel left the Chancery Bar, be considered at the head of it, is appointed a Lord Justice of Appeal. The Lord Chancellor's choice gives universal satis- faction. No one can, indeed, tell what sort of Judge any lawyer will be, until he has been actually tested and tried by that exacting jury of experts, the Bar practising before him. Success in advocacy is but a poor criterion of judicial capacity. The brilliant, ingenious orator may sink into the flighty, hasty, vacil- lating, and untrustworthy Judge, whose decisions are a by-word and whose temper is a terror ; and his unsuccessful competitor, at whose door groups of attorneys' clerks never clustered, and who was pronounced unfit to address a jury, and not very proficient in arguing a point of law, may become an admirable Judge. We do not care to name very recent instances ; it is enough to say that history is rather silent about the forensic triumphs of Sir William Grant or Sir William Erle, and that no one quotes with much reverence the scanty judicial dicta of Erskine. In the present instance, there is good reason to hope for the best. Mr. Cotton had a considerable University repu- tation. He has had very large experience as a Chancery lawyer in important cases, and he is master of a neat mode of expression, which Judges and advocates in general might imi- tate, to the advantage of themselves and others. It is understood that, like his distinguished predecessor, he has more than once refused the offer of an appointment as a Judge of First Instance, and it seems admitted that he will be most at home in the Court of Appeal, the credit and repute of which he is likely to sustain. This is, we need hardly say, no easy task. It has been the good-fortune of this Court, in its present and past form, to possess a line of Lord Justices of remarkable ability and worth. They include men who have done very much to build up the good name and reputation of the English Bench,— Judges of consummate impartiality, such as the late Sir George Giffard ; Knight Bruce, who was a scholar and true humourist, as well as an excellent Judge ; and the late Sir George Mellish, who was universally regarded as a rare orna- ment of the Bench. The sole drawback to the constitution of this Court has been the fact that at times its reputation almost overshadowed that of the tribunal by which its decisions were reviewed.
It was highly necessary to lose no time in making this appointment. The Bench is short-handed, and it would have been barely possible to provide for the exigencies of all the approaching Circuits had not the new Lord Justice been nominated at once. As it is, we may observe that it will not be found quite practicable to arrange for the sitting of the Court of Appeal in two divisions,—one at Westminster and the other at Lincoln's Inn Fields. Certainly, this desideratum could be obtained only by withdrawing the Master of the Rolls from his own Court, or recasting the already promulgated arrange- ments with respect to the Circuits, which have been actually begun in one or two towns. It will probably be found difficult after this week to have a Court in Banc of any kind sitting at Westminster, except at rather rare inter- vals. Of course, all this implies grievous delay to suitors ; and yet it is but a small part of the mischief. The Long Vacation will begin some six weeks hence, with arrears of nearly a thousand cases at Nisi Prins, which will grow in number before the Courts open again at Michaelmas, and which will not be sensibly reduced for many months. Im- portant cases which are the subjects of appeal, and others which wait only the settlement of some interlocutory point to be completely determined, may be hung up for months. At many of the Circuit towns which the Judges will visit next month, we shall hear the old cries of disappointment from suitors. Those who took their cases down to Lancashire or Nor- folk towns in order that they might be tried more speedily than in London, will not have much chance of profiting by their tactics. The Judges will be sure to give priority to local causes, or to such as will occupy no great time. They may be bound to refuse to try the most pressing cases, and may dismiss the armies of expectant solicitors and witnesses who have been brought down from London at enormous cost, on the impregnable ground that they must hurry away in order to be present on Commission-day at the next Circuit town, or in order that they may go to the aid of their brothers who are engaged in trying prisoners and effect- ing the gaol delivery. No doubt, Queen's Counsel who have not too many briefs at Assizes, and who are not above earning a few guineas a day, will be transformed into Commissioners, and will help to, clear away the arrears. But we repeat that at many of the Circuit towns there will be heard the old story of costly preparations for trial made all in vain. The complete analysis of the causes of all these obstructions would be very tedious. They are many ; some trivial and easily removed, others deeply seated. To name one which is more respon- sible for the block in the Courts than might be readily imagined, the Judges at Westminster have got into a habit of beginning their sittings far later and ending them earlier than they once did. Ten o'clock was once the regular time for beginning the business of the Courts, and it was the practice in the good old times to labour on, with more or less activity, until four o'clock. It is tree that in the long, hot days of June, Justice occasionally nodded, if not actually slumbered, on her seat ; but if the proceed- ings were in Banc, there was always some one of the trio wake- ful enough to heed Counsel's arguments, and in the course of the day .the amount of business disposed of was consider- able. But the Judges of these times are inclined to take matters easily. The Legislature will have it that they ought to labour harder than they do, and it has set its face against the comfortable practice of hearing unimportant motions before a Bench of three Judges. The Judges must obey the letter of the new legislation, but they quietly do much to restore the old balance of things, by not beginning to sit until half-past ten o'clock, or even later, and by rising at an early hour in the afternoon. Most of them do not, as they once did, show any great eagerness to dispose of a vast number of cases, and to stimulate juries to feats of patience and perseverance. Who could imagine in these times any of them, when on Circuit, acting like a famous Puisne, who encouraged a wearied jury to begin another case near midnight with the indisputable remark, " After all, gentlemen, we must be somewhere ? " It is, how- ever, but fair to attach paramount importance to other causes, for which the members of the Bench are in no respect re- sponsible. The judicial staff of this country, composed as it must be, for the most part, of men past the prime of life, is always somewhat like an army on the march, or in the field ; the list of " casualties," to use Aldershot language, must be pretty long ; there must be always one or two sexagenar- ians or septuagenarians who are ailing. But the existing system does not make provision for these occurrences, necessarily frequent. There is no judicial Reserve. Every one is called out and ordered to the front. We can command the service of any number of spare Admirals or surplus Lieutenant-Generals, and the dis- abling of one or two does not throw the particular public Department into confusion. On the other hand, if a Lord Justice has an attack of the gout or a Puisne Judge catches cold, the legal world is in extremities, suitors are disconsolate, briefs that had been opened must be tied up, witnesses who have been subpoenaed must be told to go home, and the Attorney-General may have to explain in the House, in answer to some question prompted by a sufferer, that the system would be perfect, if Judges were subject to none of our mortal infirmities.
Some of the defects in the system of procedure are par- ticularly conspicuous this year. Next week, the Quarter- Sessions are held all over England. In the natural course of things, all prisoners charged with minor offences ought to be tried there, and only those charged with grave crimes, or those committed for trial in the interval between Quarter-Sessions and Commission-day, ought to be left to be dealt with by her Majesty's Judges. Such is, in fact, the usual course of things, but we find that this year this arrangement has been in a certain degree lost sight of, and the consequence will be in some cases, that petty offenders will come up for trial at the Assizes, instead of at the Sessions. This might be easily remedied, and it is not an incident likely to be repeated. But radical changes would, we fear, be requisite before the civil business could be mastered by the existing staff. Mr. Day, Q.C., has proposed, in an important pamphlet on this subject, that four Judges should sit in London all the year, and that six Judges should be exclusively set apart for circuit business, civil and criminal. There is much to be said in favour of some such arrangement, but we take it that it would require supplementary reforms. Cases now dealt with by County- Court Judges must go to their Registrars, and others, not much more important, which now come before the superior Courts must be consigned to County Courts. And this, of course, implies a readjustment of the position of the County- Courts Judges. If they are to be recruited to some extent from the ranks of the professional failures, they will not com- mand that influence which is indispensable, if their juris- diction be greatly increased. Their position, and above all, their prospects, must be so improved as to attract men com- paratively young, who would not think, under the present circumstances, of accepting the post of a County-Court Judge. Why should not there be considerable differences in the salaries, according to merit and service ? And why, occasionally, should not an excellent County-Court Judge be rewarded by elevation to the Bench of our
Superior Courts The Bar might not like it, but auto- cratic Chancellors do • not always consult the likings of the Bar.
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