THE ENGLISH BENCH.
AN early addition to the strength of the Bench is now almost a moral certainty. The Attorney-General told the House of Commons last week that the Government were considering the propriety of making a new Vice-Chancellor, and his speech contained so many admissions as to the crying need of adding to a number fixed in a state of society different from the present, that it is not quite intelligible why there should be any hesitation, or why the Government should take time for further consideration. He, as well as every one acquainted with the inside of our Courts, owns that the three Vice-Chancellors and the expeditious Master of the Rolls cannot overtake the growing business of the Chancery Division. As the increase has been steady for a long period, it cannot be set down to any merely passing accident. The Attorney-General cannot, we presume, fear that one or two fresh Judges would ever want employment. Any one who knows much about legal history must be well aware that the opening of a new Court has been uniformly followed by an increase of the litigation of the country, which is not a fixed or slightly varying quantity, like the death-rate. People who pocket affronts and let swindlers go their way in peace when the doors of Courts of Justice are but half-open, are apt to instruct their solicitors to issue writs, if access is easy, and if there is the certainty of the dispute being disposed of quickly. We are not sure that if the course of justice was accelerated—if the ordinary time between writ and judgment was reduced, say, to two months —the Queen's Courts might not attract to them a class of cases which are now dealt with by the Stock-Exchange Com- mittee, brokers in Mincing Lane, and various other informal domestic tribunals. As to the impediment of expense, that is a serious consideration, but zeal for economy ought not to blind one to the fact that a new Court to which suitors resort is not like a barrack or an ironclad. A popular Vice-Chancellor pays his way. His Court is in a degree as much a source of revenue as the Customs or the Post-Office. It may be right to pay no heed to the fact that there are people who desire to have a new Judge, and to support him ; but to call this conduct economy, or to class it with opposition to the augmentation of the merely spending establishments of the country, is to confound things which are distinct. We take it that the only plausible objec- tion to an addition to the Judicial Staff springs from other causes than the dread of expense. The nation would not grudge an expenditure of £60,000 for the creation and endowment of two new Courts, if they were manifestly wanted. But there is a feeling that we cannot be too particular, in these times, as to the quality of our Judges ; that exposed as they are more than ever to criticism and the glaze of publicity, they must be men of tried ability and honour, and worthy of confidence ; and that it may be perilous to multiply the number of the Judges. No one wants to cheapen their dignity. "It is undesirable at one moment," said the present Lord Chancellor, "to make a great drain upon the Bar for new Judges. The Bar is like other professions, and cannot afford to give to the Bench more than a limited number of its highly-trained members at any given time." It is the fear lest the multiplication of judicial offices should necessitate resort to the secondary strata or residuum of professional merit, which has been the grave obstacle to a step now almost admitted by the Attorney- General to be necessary.
We have stated this objection, but we do not the less believe that it originates in a fear which, looking to any probable or possible increase, seems unreal. It would be ridiculous to assert that the Bar could not now furnish two or three re- cruits to the Bench equal in all respects to the best of the present Judges,—as ridiculous as to suppose that there was not the making of another General officer in the whole Army. And if now or hereafter the Bar could not yield the requisite supply, why should the Lord Chancellor be debarred from occasionally turning to the County-Court Judges? Some of them are men of learning and proved judicial ability. One or two are eminent lawyers, whom, in all probability, only an unfortunate chance of early preferment has prevented from be- coming Judges of the Superior Courts ; and it would be possible to name some whose opinions on a knotty point of law would carry as much weight as those of most Puisne Judges. It is a circumstance not unimportant in this connection to remember that the palmy days of the English Bench were, perhaps, those which followed the increase of the number of Chancery or Common-Law Judges. Never did it stand higher than subsequently to 1831, when each of the Common-Law divisions received an addition of members. Since that time, Alderson, Erie, Sir John Taylor Coleridge, Willes, and most of those Judges who have displayed that rare union of probity, learning, and knowledge of the world which Englishmen so much admire, have presided. Since the creation of three Vice-Chancellors, the Courts of Equity have had sonic of the very best Judges ; and there is no reason to believe that the average standard of ability has fallen. Lord Eldon used to admit that in his experience the standard of professional excellence at the Bar was rising, and there is no reason to believe that the same dictum may not hold good more or less of the Bench, which is fed by the Bar. Of course it is sometimes said that the Bench does not maintain its ancient reputation for scholarship. And no doubt there is not on the Bench the same number of distinguished University men as there once was. At present, the Queen's Bench Division presents the almost unexampled feature of not numbering among its Judges one whose career was brilliant at the University ; indeed, of the present Judges in that Court, only one, if we are not mistaken, is a University man at all. The other Courts do not exhibit the old University leaven. The change is not without its effect. We do not discern in the printed judgments of the present roll of Judges the elegance and conciseness of the language of the Bench thirty years ago. Diffuseness, slovenliness of language, and a supreme in- difference to style mark too often even the considered opinions of the Bench ; and Judges might be named who are a little of the mind of Sigismuncl super gram- maticam. To toil through the dreary intricacies of Meeson and Welsby is enough to fill one with shame for the frivolity of the human mind, but one cannot but admire, or accept as partial solace, the scholarly neatness and pre- cision of the judgments, or regret that this generation, in casting away the vain mysteries of special pleading, did not retain the pointed conciseness of its masters. There is, however, no reason to believe, that as regards essential qualifications the Bench of to-day is one whit behind what it ever was. We may not have Judges who can write elegant vers de socie'te; like Alderson, or who are no mean poets, like Talfourd. There may be on the Bench a growing number of men who have forced their way from the drudgery of an attor- ney's office to their position, but they are not behind their pre- decessors in essentials, perhaps sometimes even their superiors in ability and force. While mourning the decay of scholarship, let us extract comfort from the fact that the Bench is not lack- ing in all that is needful, and that even as regards judicial accomplishments our case is not so bad as that of some former generations, if it be true, as Lord Campbell alleges, that before Blackstone no Judge thought of writing grammatically.
The real perils in the future are different from those which we have indicated. In the first place, a Judge's position is not so pleasant and attractive as it was. It is not quite the prize winch it once was deemed. Perhaps he retains his old social status, but he is worked harder than he used to be. He is compelled to be almost every day in Court, or what is worse, in cham- bers; and by all accounts, fighting with wild beasts at Ephesus can hardly have surpassed the horrors of brawling with lawless clerks at Serjeants' Inn. If a few days of repose from public duties intervene, they must be spent in pre- paring and writing judgments or mastering the re- ports. Now that three Judges no longer always sit in Banc together, it is impossible to indulge in a hot summer afternoon in what Shakespeare terms "sore labour's bath ;" the mind must be always on the stretch. Let those who say that our Judges do not work hard enough think what it is to sit in the Court of Appeal from half-past ten to four, go then to chambers, and end the day by reading papers at home. The graphic sketch which Baron Bram- well once gave of the labours of an English Judge anxious to do his duty might well strike terror into a galley-slave or a railway signalman. Of course, the majority of men who climb to the Bench are accustomed to hard work, and do not shrink from the drudgery before them. But it stands to reason that Counsel who are in receipt of far larger incomes than the Judges, and who are still in the prime of life, do not always care to accept a mere puisne-judgeship. They may look upon it as a sequel to their career, but they may wish
to lay by money in their profession, and thus the nation gets their services only when their best days are over. More than once it has happened that a law officer who would have made a-reepectable Puisne, but who was reluctant to exchange his dignified and lucrative position for anything less than one of the three Chiefships, has refused to sacrifice his post for a mere /5,000 a year and much thankless drudgery.
It has often been said that judicial appointments would be more satisfactory than they are, were they made without regard to political services. We fear that it is no use preaching this wholesome doctrine ; lawyers who are legislators will, cceteris paribus, always outstrip their rivals who are not in the House. But what is worth con- sidering as a possible reform is, whether it is well to appoint almost uniformly, as has been the fashion of late, elderly men who have long passed the meridian of life. It is rarely that a Lord Chancellor thinks of nominating any one under sixty. The Bench is recruited, as a rule, by men whose vigour is beginning to wane. The nation does net secure the best days of the working lives of eminent advocates. And as perfection in the discharge of judicial duties comes only with experience, many never have time to learn their business. We cannot doubt that the Lord Chan- cellor might secure a valuable servant to the State, were he occasionally to select for promotion an advocate of tried ability still in the vigour of life. The Bar has chosen to lay down as a principle for the guidance of Lord Chancellors, that pro- motion ought to be so distributed as to remove the most successful advocates and "scatter business." This principle operates, on the whole, very beneficially for the public, but no harm would be done if occasionally a lawyer more eminent by erudition than the extent of his practice were raised to the Bench. It is quite possible that some day soon we may set to work to prepare a Code. The Judges will naturally be expected to lend their aid to the undertaking, in the capacity of advisers or in the work of revision ; and the services of a lawyer more distinguished as a scientific jurist than as an advocate, as assistant in this task, would be invaluable.
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