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A proposition was some forty years ago submitted to some of the ministers and others in Parliament, as well as the Bench of Bishops, by a most learned and pious prelate, for reforming the Church establishment of England; and one of its principal objects was, to secure the independence of the Episcopal Order. The means suggested were, to equalize the emoluments of the sees, and to prevent translations, if this equality should not of itself remove all desire of change. The plan appears to have been approved of by all the laymen to whom it was communicated, though they questioned the fitness of the time chosen for bringing it forward- as the Duke of Grafton, Lord Shelburne, Lord John Cavendish, and Mr Pitt. Lord Camden said that every line of it was right, but it would take twenty years to bring men's minds round to it.'-- Anecdotes of Bishop Watson's Life by Himself, p. 102. Only one of all the Bishops deigned so much as to acknowledge the receipt of the paper-there seemed to be pollution in the thing; they would not admit having seen it. Their repug, nance afforded probably as strong an argument in favour of the measure, as the respectable authority of Lord Camden's direct approval. Why does every one, upon every question that comes before the House of Lords, reckon upon almost every Bishop being found on the same side in the divisions? One of the most distinguished members of the body shall answer for them. As long as there are steps on the Bench, says Bishop Watson, from twelve hundred a year to five and twenty thousand, those who can climb them only through Court favour, cannot in any sense of the word be called independent of the Crown or its ministers. This is a matter so clear, that nobody ever affects to doubt it; the Bench and the Bedchamber Lords are accounted equal. ly secure; yet if the latter are retained in lasting allegiance by the fear of losing their situations, the hold over the foriner is the hope of bettering theirs, and is found nearly as strong to bind them. This should indeed be remedied, if the House of Lords is ever to obtain that weight in the country, which can only be conferred by general confidence in the purity and impartiality of its decisions. But it is of incalculably greater importance, that the conduct of the Judges, in the daily administration of their high trust, should be freed from all bias, and removed far above every suspicion.
In what way can the object be best attained, of preventing Judicial translation ? Two plans are practicable; a direct legislative prohibition, and a general resolution of the two Houses of Parliament, declaring such promotions to be unconstitutional and inexpedient. The first is, on every account but one, the
preferable method the last, being only recommended by the possibility which it would afford of making an exception in any rare case of distinguished merit on the Bench, concurring with want of qualification at the Bar, and being liable to objections so numerous and plain that they cannot be specified.
What, then, is the objection to a legislative prohibition ? It is said to prevent the choice of men for the highest stations, who have shown their capacity, and acquired experience in subordinate ones. The talent and learning required for both are admitted to be nearly the same, certainly to be of the same kind; and therefore, it is not denied that, in the choice of a puisne Judge from the Bar, the risk is run of appointing an insufficient person, as well as in choosing a chief; but the mistake is said to be of less moment, and the inconvenience is pressed upon us of making it impossible to fill the highest and most important judicial station, with the individual whose merits all men may agree have been so displayed as to designate him for it.
An extreme case of this kind, we reply, must always be laid out of view, in canvassing the expediency of a general provision; because, unless the advantages of it in all ordinary cases are considerable, the reason for adopting it fails upon other grounds; and if those every-day advantages are considerable, they more than counterbalance the evil which may result from its operation in some rare, and perhaps fanciful combination of circumstances. But, speaking of the ordinary cases, it is plain, that either the qualifications required in a Chief Judge are the same with those required in a Puisne, or they are different; if the same, they can be acquired in the same way, and the harm done during the probationary state is not greater by a Chief than by a Puisne; if different, then the Chief is not only learning nothing while a Puisne, but he is acquiring habits that rather unfit him for filling the first place. The talents which distinguish a great advocate are not, it is said, those which constitute an eminent Judge; and the illustrious example may be cited of the greatest Judge in our times, Sir William Grant, whose professional fame may be said to date from his elevation to the Bench. It is, however, well known that this was accidental; and that, whensoever that great man had an opportunity of appearing at the Bar, no one excelled him in all that forms the better part of an advocate's qualifications,-close, impressive reasoning-clear statement-readiness and presence of mind. But, after all, how are Judges to be made except from practising lawyers? If the most able advocate would make a bad Chief Justice, then one less distinguished as an advocate, but known for whatever qualities they may be that constitúte a good Puisne Judge, may be chosen for a Chief, even to the exclusion of him who may have risen by other qualifications to the highest offices at the Bar. We suspect that, after all, these distinctions are rather speculative than warranted by experience. It was not by his profound knowledge of law, that Sir W. Grant distinguished himself for a considerable time after his promotion; he was well grounded in its principles, perhaps, and had an eminently legal as well as judicial understanding; but he became a ready lawyer, and a distinguished case lawyer, some time after his judicial birth. Who, next to Sir William, have been the greatest Chief Justices in the late reign ? Lord Mansfield, Lord Kenyon, Lord Alvanley, and Lord Ellenborough,- none of them promoted from being puisne Judges; all taken from the highest places at the Bar, as advocates, and filling those places from their great forensic talents. .
It is said that, by preventing all chance of promotion, you damp the exertions of the Judges, who, knowing that they have reached their highest point of elevation, become strangers tò the stimulus of hope. Then are we peculiarly unfortunate; for, according to this doctrine, the highest judicial place must always be filled by an indolent and inefficient person, because he feels that he can rise no higher. But a puisne Judge may distinguish himself among his brethren in the eyes of the profession; and this should be a sufficient stimulus, if indeed the satisfaction of well discharging his important duties should not suffice to keep his energies alive. • There is no necessity, after all, for those who maintain the expediency of the provision in question, to show that it can never produce any inconvenience. We might even admit, with perfect safety to the argument, that were there no objections of a paramount importance to such an arrangement, the best way of appointing Judges would be, always to raise those from the Bar who are most likely to make good puisne Judges, and then from among the puisnes, after experience of their merits, to choose the chief. The very worst system has generally some one advantage to boast; and those who oppose too successfully all improvement, seldom fail to single out the exception, and boast of it as a redeeming perfection, which justifies them in retaining the whole bundle of abuses. Lovers of paradox oftentimes fall into the same error, from a fondness for displaying ingenuity, and by showing, that what seems without a defence is not quite so bad as it looks, they become its defenders. Thus, Mr Horne Tooke was wont to say that the Judges had
been the worse for the enactment which secured them their places during life; because, formerly, when they had always the prospect of being reduced to the ranks, they were compelled to good behaviour while in command, that they might have some support when the evil day came. Although it is possible that some controul, though certainly not of the best kind, was thus obtained over their judicial conduct, we presume no one who reasons seriously upon the matter could hesitate in giving this ‘up cheerfully, that, with it, the great evil of constant dependence on the Crown might be got rid of.
It must be admitted, that the great addition which has lately been made to the salaries of the English Judges facilitates the adoption of the provision for which we are contending. The prospect of rising higher than a puisne Judge's place, can no longer be wanting as an inducement to quit the emoluments of the Bar; for five thousand five hundred a year is an ample revenue to a man whose habits of expense cannot but have been moderate, and who must have laid by some money before his promotion. This income, too, he obtains by an exchange of great labour and anxiety, for moderate labour and little if any anxiety at all. Within less than twenty years these salaries have been nearly doubled,--and the depreciation of money and increase of taxes being, at the former augi. entations, assigned as the reason, it is remarkable that the fast and greatest was made after the restoration of the currency, and the reduction of many taxes had been effected. The manifest expediency of making the remuneration ample for such high functionaries, has reconciled men to this liberal scale. The fitness, no less manifest, of securing their entire independence, recommends the measure of which we have been treating; and the time for adopting it seems naturally enough to be, when their salaries have been put on so liberal a footing.
· ART. VI. 1. Lettres inedites de Madame de Maintenon à la
Princesse des Ursins. 4 Vols. 8vo. Paris, 1826. Treuttel
et Würtz. 2. Memoires de M. Le Prince de Montbarey, 2 Vols. 8vo.
Paris, 1826. Treuttel et Würtz.
Tr is a matter of no small importance, that mankind in general I should be well informed of what passes in Courts. It is the common boast of the advocates of pure monarchy, that, however much that form of government may be at variance VOL. XLIV. NO. 88.
with specious theories, it is proved to be tolerable, and even convenient, by that decisive test of Experience which the delusive plausibilities of their opponents cannot stand. This may be, and in part has been shown to be a fallacy, entirely dependent on a double sense of the word experience—which is sometimes used to denote the results of general observation, and at other times to signify some particular facts which may appear to deviate from these results. Wherever the general result is justly stated, and the peculiar appearances accurately observed, it is self-evident that the deviation can only be ap.parent, and that general and peculiar experience must ultimately be found to coincide. As long as the seeming variance continues, it is safer, both in reasoning and in conduct, wherever we are compelled to make an option, to trust to the general laws of nature, either in the mental or material world, rather than to be guided by insulated phenomena and excepted cases. It is sufficient to make an allowance for these anomalies. If they are considered as objections, no principle of experimental science could be stable ; every new and unexplained fact would subvert a theory.
But such answers, however conclusive, are not of a nature to be easily apprehended by the ignorant or the superficial, the indolent or the busy ;-which last class comprehends the great majority of mankind. It is very convenient, therefore, that the friends of good government should consent to try the question in dispute by the test which their opponents have chosen; and that the trial by experience should be hazarded by them, even in that narrow sense of the word to which their adversaries confine it. They may even restrict it to the very narrowest acceptation in which it is possible to apply it, with advantage, instead of danger to their cause. When we appeal to our constant experience of the effects of liberty or despotism on the numbers, the wealth, the accommodations, the enjoyments, the understanding and the virtue of a community, we are told that men are in all these respects so much affected by other causes, such as soil, and position, and climate, and descent, and religion, (to say nothing of those hidden causes which we call accident), that a reference of the superior advantages enjoyed by any nations, solely or mainly to its form of government, is a procedure not warranted by the rules or examples of cautious and successful philosophy. ! But surely the admirers of monarchy will not shrink from trying its merits by the criterion of its effects on Kings and Courts. If absolute monarchy be not a bad government, it is reasonable to expect that absolute monarchs will not in general