II
Two stubborn and noisy scuffles arose in the autumn of 1871, in consequence of a couple of appointments to which Mr. Gladstone as prime minister was a party. One was judicial, the other was ecclesiastical.
Case Of Sir Robert Collier
Parliament, authorising the appointment of four paid members of the judicial committee of the privy council, had restricted the post to persons who held at the date of their appointment, or had previously held, judicial office in this country or in India.[251] Difficulty arose in finding a [pg 383] fourth member of the new court from the English bench. The appointment being a new one, fell to the prime minister, but he was naturally guided by the chancellor. The office was first offered by Mr. Gladstone to Lord Penzance, who declined to move. Application was then made to Willes and to Bramwell. They also declined, on the ground that no provision was made for their clerks. Willes could not abandon one who had been “his officer, he might say friend, for thirty years.” Bramwell spoke of the pecuniary sacrifice that the post would involve, “for I cannot let my clerks, who between them have been with me near half a century, suffer by the change.” The chancellor mentioned to Mr. Gladstone a rumour that there was 'an actual strike among the judges' in the matter. Nobody who knew Bramwell would impute unreasonable or low-minded motives to him, and from their own point of view the judges had a sort of case. It was ascertained by the chancellor that Blackburn and Martin had said expressly that they should decline. Mr. Gladstone felt, as he told Lord Hatherley, that “it was not right to hawk the appointment about,” and he offered it to Sir Robert Collier, then attorney-general. Collier's claim to the bench, and even to the headship of a court, was undisputed; his judicial capacity was never at any time impugned; he acquired no additional emolument. In accepting Mr. Gladstone's offer (Oct. 1871) he reminded him: “You are aware that in order to qualify me it will be necessary first to make me a common law judge.” Three days later, the chancellor told Mr. Gladstone, “It would hardly do to place the attorney-general on the common law bench and then promote him.” Still under the circumstances he thought it would be best to follow the offer up, and Collier was accordingly made a judge in the common pleas, sat for a few days, and then went on to the judicial committee. The proceeding was not taken without cabinet authority, for Lord Granville writes to Mr. Gladstone: “Nov. 12, '71: The cabinet completely assented to the arrangement. Sufficient attention was perhaps not given to the technical point. For technical it only is.... I think you said at the cabinet that Collier [pg 384] wished to have three months' tenure of the judgeship, and that we agreed with you that this would have been only a sham.”
Cockburn, the chief justice of the Queen's bench, opened fire on Mr. Gladstone (Nov. 10) in a long letter of rather over-heroic eloquence, protesting that a colourable appointment to a judgeship for the purpose of getting round the law seriously compromised the dignity of the judicial office, and denouncing the grievous impropriety of the proceeding as a mere subterfuge and evasion of the statute. Mr. Gladstone could be extremely summary when he chose, and he replied in three or four lines, informing the chief justice that as the transaction was a joint one, and as “the completed part of it to which you have taken objection, was the official act of the lord chancellor,” he had transmitted the letter for his consideration. That was all he said. The chancellor for his part contented himself with half a dozen sentences, that his appointment of Collier to the puisne judgeship had been made with a full knowledge of Mr. Gladstone's intention to recommend him for the judicial committee; that he thus “acted advisedly and with the conviction that the arrangement was justified as regards both its fitness and its legality”; and that he took upon himself the responsibility of thus concurring with Mr. Gladstone, and was prepared to vindicate the course pursued. This curt treatment of his Junius-like composition mortified Cockburn's literary vanity, and no vanity is so easily stung as that of the amateur.
Parliamentary Criticism
Collier, when the storm was brewing, at once wrote to Mr. Gladstone (Nov. 13) proposing to retain his judgeship to the end of the term, then to resign it, and act gratuitously in the privy council. He begged that it might not be supposed he offered to do this merely as matter of form. “Though I consider the objection to my appointment wholly baseless, still it is not pleasant to me to hold a salaried office, my right to which is questioned.” “I have received your letter,” Mr. Gladstone replied (Nov.. 14), “which contains the offer that would only be made by a high-spirited man, impatient of suspicion or reproval, and determined to place himself beyond it.... I have not a grain of inclination [pg 385] to recede from the course marked out, and if you had proposed to abandon the appointment, I should have remonstrated.”
What Mr. Gladstone called “a parliamentary peppering” followed in due course. It was contended that the statute in spirit as in letter exacted judicial experience, and that formal passing through a court was a breach of faith with parliament. As usual, lawyers of equal eminence were found to contend with equal confidence that a fraud had been put upon the law, and that no fraud had been put upon it; that the law required judicial status not experience, and on the other hand that what it required was experience not status. Lord Hatherley and Roundell Palmer were all the virtues, whether public or private, personified; they were at the top of the legal ladder; and they agreed in Palmer's deliberate judgment that—after other judges with special fitness had declined the terms offered by parliament—in nominating the best man at the bar who was willing to take a vacant puisne judgeship upon the understanding that he should be at once transferred to the judicial committee, the government were innocent of any offence against either the spirit or substance of the law.[252]
Yet the escape was narrow. The government only missed censure in the Lords by a majority of one. In the Commons the evening was anxious. “You will see,” says Mr. Bruce (Feb. 20, 1872), “that we got but a small majority last night. The fact is that our victory in the Lords made men slack about coming to town, and Glyn got very nervous in the course of the evening. However, Palmer's and Gladstone's speeches, both of which were excellent, improved the feeling, and many who had announced their intention to go away without voting, remained to support us.” At one moment it even looked as if the Speaker might have to give a casting vote, and he had framed it on these lines: “I have concluded that the House while it looks upon the course taken by government as impolitic and injudicious, is not prepared at the present juncture to visit their conduct with direct parliamentary censure.”[253] In the end, ministers had a [pg 386] majority of twenty-seven, and reached their homes at three in the morning with reasonably light hearts.