The appointment of an additional Chancery judge is by many advocated for the purpose of battling with these arrears. It is, however, notorious that, owing to the higher scale of costs in Chancery than in Common Law, solicitors prefer the former for the purpose of trying their actions. In consequence of this, a large number of cases that should properly come before the Common Law judges are tried in the Chancery Division. Surely the effect of removing this gross anomaly should be seen before further expenditure be imposed upon the nation.
Few probably will go so far as Jeremy Bentham in laying down that the State should provide for the administration of justice free of expense to litigants; but there is a very general consensus of opinion in favour of a simplification of procedure and a limitation of the powers of appeal, and these are reforms that a willing legislature might well undertake.
To return to the judges of the High Court, it will be instructive to inquire how they earn the liberal salaries set forth in the foregoing table. Commencing at the top, it will be well to consider the position of that august official the Lord High Chancellor of England. And whatever remarks we may find it necessary to make, we wish it to be distinctly understood that we mean no disrespect to Lord Halsbury, the present learned and capable occupant of the post. It is merely our object to criticise the office, and our observations, therefore, will have no personal bearing. In the first place, it is worthy of note that the most highly paid temporal office in England—that of the Lord Chancellor—is given rather as a reward for political than for legal success. Of course, to occupy the post of Attorney-General, the stepping-stone to that of Lord Chancellor, a man must be a lawyer of considerable ability. It has, however, been very well said that a good lawyer can be nothing else; and it is obvious that an Attorney-General must be a man of some political as well as legal capacity. It is quite conceivable that there may be a dearth of legal talent on any political side, and that a moderate man maybe chosen as the chief law-adviser of the Crown in consequence. Indeed, such a state of things has happened before now. It by no means follows, therefore, that the Lord Chancellor is necessarily a man of transcendent legal ability. It is probable, in fact, that, as a rule, he is not so good a lawyer as the judges who receive half his salary. And here it may be well to remark that, although the Lord Chancellor is nominally at the head of the bench, he can exercise no efficient control over the judges. He can make appointments to the bench, but judges, once made, can, as already stated, only be removed by the act of both Houses of Parliament. Thus a judge, even if obviously suffering from mental decay, may continue to exercise his functions, to the miscarriage of justice, for a considerable period before the legislature can be set in motion to bring about his retirement.
MR. JUSTICE JEUNE.
The Lord Chancellor occasionally (when any of the Lords Justices are absent from illness or other cause) sits in the Court of Appeal, which is held in two sections—one hearing cases from the Common Law side, and the other those from the Chancery Division. The principal duty of the Lord Chancellor, however, consists in presiding over the House of Lords—the final Court of Appeal both in Common Law and Chancery matters. The House of Lords, as an appellate court, consists of the Lord Chancellor, the Lords of Appeal, and such peers as are, or have been, holding high judicial office. Ordinary peers, however, have also the right of sitting and giving judgment, and, in consequence of this anomaly, the judges of final appeal have sometimes had the assistance of an eccentric nobleman endowed with a fancy for the law, whose vote has carried as much weight as that of the Lord Chancellor himself. The judicial work of the House of Lords is light. Indeed, it will not be understating the case to say that the House does not dispose of more than sixty or seventy causes in the year. It is thus not difficult to calculate, supposing these cases to occupy an average of half a day, and taking into consideration the salaries of the Lord Chancellor and the Lords of Appeal, together with the heavy pensions paid to ex-Chancellors and other expenses, that the Court of Final Appeal exercises its judicial functions at a cost of something like a thousand pounds a day!
Besides the Lord Chancellor, the Lord Chief Justice is by some legal fiction supposed to exercise control over the judicial bench. As a matter of fact, however, the judges are practically under no control whatever save that of public opinion, as represented by the press, which should never hesitate to expose their shortcomings when they come to light. It is the duty of those on whom, by force of circumstances, the public are obliged to rely to safeguard their interests, not to relax their supervision out of deference to the high repute in which our judges are held. Under the old system, when the Courts of Common Pleas, Exchequer, and Queen's Bench existed, each division had a chief who was responsible for the work of his court and the mode in which it was administered. The judges now hold a meeting, at which they make their own arrangements for circuits and for appointments to the various courts. Although the Lord Chief Justice is supposed to control the order of work, the judges in effect have a free hand as regards their own duties.
With the development of modern civilisation and the increase of democratic strength, the social status of the judges has materially changed, and it is by no means in accordance with "end of the century" ideas to grant them the almost despotic power that they held of old.
The Judicature Act did something towards diminishing their prestige, and nowadays many of them are disappointed perhaps to find that their office does not command a high social position.
