the Criminal Law has till lately been much neglected; that valuable practical improvements have been already made by Sir R. Peel's bills and some others, to which allusion has been made; that this branch of the law is still very defective and capable of improvement, by the extension of measures already tried with success; that the apprehensions of those are not well founded, who would confine such attentions to a consolidation of the Statute Law, the more especially as those already beneficially effected have not been confined to the Statute Law; and as the principle of consolidation is now sanctioned by the declared opinions of a number of most learned Peers1, upon the reading of the bill.

We will venture to say that a more striking and decisive manifestation of opinion by persons so eminently qualified by natural talent and professional acquirements, to give a correct judgment on the question - one better supported by all the weight and importance which can be derived from high legal dignity and personal character, could not have been placed on the record of history.

1 Lord Lyndhurst, Lord Brougham, Lord Denman, and Lord Campbell.

466

CORRESPONDENCE.

[In conducting this Journal we shall be willing under this head to insert any letters in opposition to the views maintained in our pages. But of course we expect that any such letters shall be in temperate language; and we may also hint that they must not be too long, as the space to be devoted to them is very limited.]

SIR,

ON THE APPOINTMENT OF JUDGES.

To the Editor of the Law Review.

As you with so much candour invite the expression of opinions, even though they be different from those avowed by yourself, I hope you will allow me to make a few observations as to the appointment of Judges.

The importance of this subject cannot be denied, and so far from not being readily admitted on all hands, it is much more likely to be overrated than undervalued. A general impression prevails, that on the pure and able administration of justice, more large and universal interests depend than upon any other branch of our civil polity; and the necessity of placing the scales in hands both strong enough to preserve the balance, and prompt enough to exclude all bias, seems to be felt with a sincerity proportioned to the extent of that which is at stake.

Nevertheless, it is right to avoid every kind of exaggeration, if we would arrive at sound and safe opinions upon any subject; and I cannot help thinking, that some of the opinions now pretty generally afloat on this, derive their origin from a view of the question which would represent the judicial system as peculiarly situated and different from all the other departments of the public service. Thus nothing is so common as to hear it said, that no political or party consideration ought ever to interfere with the appointment of Judges, because it interests all members of the community alike that justice should be well administered. But so does it interest us all that the care of our defence should be entrusted to able hands, that the conduct of our negotiations on which peace or war may depend, should be confided to men of

capacity, nay, that the direction of our affairs should be given to men of integrity and talents adequate to discharge the weight of public duties. Yet no one shudders at the idea of a general or an admiral, an ambassador or a foreign secretary, a commander-inchief or a prime minister, being chosen for his political virtues or even his party services; and if some of these places are connected necessarily with politics, others, as the army, navy, negotiator, most certainly are not; and yet at all times command by sea and land, foreign missions and foreign governments, have been conferred upon their political adherents by leaders of political parties in the state.

It is no doubt true that one class of the community have a very great and an immediate interest in propagating the opinion that judicial appointments should be made without regard to party considerations. The lawyers are that class; and if they would always, or even generally, keep themselves aloof from politics, they would more effectually serve the end they profess to have in view when they cry down party appointments to the Bench. But the fact is quite certain, that no profession so largely mingles with politics, no class of men are more anxious to obtain seats in Parliament. Then to what does their doctrine amount? Why to this very convenient one; that they should get from party all they can, and risk nothing the while; that each should be rewarded by his own friends according to his party claims, and by his adversaries according to his professional merits. Now I feel as strongly as any of those who put forward this doctrine, the vast importance of keeping pure and free from all pollution of faction the sacred ermine. But this strong impression leads towards another conclusion; it takes a different direction, as to the means by which the great object in view may be best attained.

Surely it must be evident, that in order to prevent political Judges from being appointed, the true course is to name none who have been political partisans at all. If the lawyers will engage in the game of party, let the stake they play for be political and not judicial office. The Attorney and Solicitor General are necessarily political officers; they are of course the legal advisers and quasi colleagues of the minister. It has been thought good, that the Chancellor too should be himself a minister of state. The President of the Council may be reckoned in the same way. Nor would there be any great harm in continuing to fill the places of Chief Justices in both the Courts of Law and Equity with those who had been the Crown lawyers. If the twelve puisné Judges, those who have to try political offences, be wholly un

connected with party, the party connexions of the chiefs can do little harm to the even administration of criminal justice, and it is on criminal justice alone, that the question we are now discussing bears. Can there be any harm whatever in laying down the rule that political partisans shall always be excluded from these twelve places; that they shall be filled by men whose lives have been devoted to the study of the laws and the practice of their profession, and who have never been either the zealots or the tools of faction?

Observe how very inefficient is the plan contended for by those against whom I am arguing. They think it enough to secure the promotion of able and honest men that their party connexions should be overlooked. But, in the first place, this principle is sure to be seldom kept in view by the Government of the day; when it is the guide of a minister's conduct, we see by the praises and the censures it calls forth how much it is regarded as the exception and not the rule. Secondly, it affords no kind of security against political and party judges, for the partisan, when appointed, is pretty sure to take one or other of two courses either to go too far against his known opinions, in order to show his impartiality, or to act under the influence of these opinions. He will take the latter line if he be a man of firm and fearless mind and high principles: he will take the former line if he be a feeble and not a very high-principled man, except, indeed, that the false position he is placed in may bias his mind, unknown to himself, and make him lean one way in order to avoid doing injustice by following the bent of his inclination. Thirdly, the plan proposed has a direct tendency to encourage lawyers in their course of making themselves politicians. It makes the parliamentary line more safe to take. Were they sure that getting a seat and serving a party would limit their chance of promotion to the great political places in the profession, and would exclude them from all chance of obtaining the inferior and more numerous prizes in the legal lottery, they would be more slow to enter the lists of party, and would prefer the vocation of law to that of politics. The scheme so much commended of taking puisné Judges from professional men without any regard to party increases their facility of combining politics with law. If all partisans were excluded from such promotions, we should have the best security against the evil of party judges. But next to absolute exclusion the course which tends most to shut the doors of Parliament against barristers is most certainly that very course which is so often blamed, namely, the making a man's politics work his exclusion when his party is out

of office. The course recommended removes a very great obstacle to lawyers becoming politicians. If every one who entered Parliament were assured that he never could be promoted to a puisne Judgeship by the party of his political admirers, he would feel what a precarious line he embarked in, what a perilous speculation he made in becoming a politician. The plan so much lauded, of ministers choosing Judges from the adverse party as well as from their own, renders the game much less precarious, and thus entices barristers to play it. Nothing, therefore, can be more contrary to the very object which these have in view, or at least profess to have in view, that of keeping the Bench free from party, than this very course which they recommend for that purpose. It tends, on the contrary, to make the Bar political, and so to make the Bench political, which for its supply can only look to the Bar.

We say "profess to have in view," for we feel well assured that in this, as in so many other cases, the ratio justifica and ratio suasoria do not at all coincide. They who laud appointments of Judges without regard to party, are the men in opposition: they profit by the policy which overlooks party claims. My supporters of the existing Government are far less loud in their praises of such impartial nominations. The Bar as a body may be, indeed naturally are, favourable to a plan which upon the whole works to its advantage, however much party men may in the particular instances dislike the acting upon such principles. This opinion is entirely grounded upon a regard for the purity of the Bench; I might add, for the dignity and respectability of the Profession. For surely nothing can tend less to its glory than the course which some, indeed many, of its members pursue of getting seats in Parliament, not in order to consult for the good of the commonwealth, reipublicæ consulere, but to further their own advancement by making themselves useful to one party or formidable to another; or, finally, by making their names known in the reported debates through the newspaper press, and so obtaining professional employment, instead of earning it by improving their opportunities of professional display, and qualifying themselves through close attendance on the courts and patient study in chambers. Can any one read such disclosures as the following passage gives, in a letter of Sir William Scott to his brother living at Newcastle, without a certain humiliation, to reflect that so eminent a man should have thought it expedient, or even becoming, when he quitted his office of college tutor and was entered an advocate in the Civil Law Courts, with a Doctor's degree, to look out at the same time for a seat in Parliament as all but necessary to his