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By the law as it' now stands, the appointment of all Judges is vested absolutely in the Crown, without interference or controul ; and, under our monarchical form of Government, it seems plain that this must always continue to be the mode of creating them. But the necessary tendency of such a power, unavoidably vested in the Crown, is certainly to give the Judges a leaning towards that branch of the constitution. If they have, during their professional lives at the Bar, been looking more or less towards the executive government for promotion to the Bench, their habits of thinking and feeling will have been somewhat influenced by their interest, and they will have acquired a bias towards the side of power in all controversies. between the Government and the People; a bias which but too many other circumstances in the education of lawyers tends strongly to confirm. Surely men placed in this situation ought to be carefully divested of all other temptations to seduce them. from the rigorous discharge of their high duties; to be kept. in such a state of disconnection with the Crown, as may remove even the suspicion of being influenced by its patronage. It should seem that, in some respects, there exists a proper sense of this truth; for, according to a most decorous etiquette. of the English Bench, the Judges are not, after their first appointment, to frequent the King's court. Their salaries too have been repeatedly increased, for the avowed purpose of making them independent in their circumstances, and thus enabling them to provide for their families, without looking to the help of the Government. But, with an inconsistency truly remarkable, they are allowed to rise from one station to a higher, in point of rank and emolument and even patronage, and are thus exposed to the strongest temptation, acting the most constantly, and from the influence of which, in giving them. a leaning towards the dispensers of patronage, nothing can secure them, save a degree of public virtue far greater than it is reasonable to expect in most men, or than we are authorized, by the general principles of reasoning in matters of national polity, to reckon upon in any class of persons.
Let us for a moment cast our eyes over the details of this subject, in order to perceive the strength of the hold which the Crown actually has upon the Judges of the land. We shall begin with England. Of the three courts of common law, one is so full of business, that its duties are extremely laborious, the King's Bench; the Court of Common Pleas is considerably less so; and the duties of the Puisne Judges, or Barons of the Exchequer, are very light indeed. The salaries of all the Puisne Judges of the three courts being the same, it becomes an advantage to be removed from the one to the other of the courts; and although, probably from some little emoluments, which afford a compensation for the greater labour of the King's Bench, this is a kind of translation not often looked to, yet there is no doubt that it has been asked and refused. But the promotion of the Puisne Judges to be Chiefs, and of the chiefs in one court to preside in another, is a far more serious evil, and an evil the occurrence of which, it must be admitted, is of increasing frequency. The difference between the emoluments of the puisnes and chiefs, has always been great. When the sale of places in the gift of the two Chief Justices was permitted, they might realize large sums of money by the deaths of the prothonotaries and clerks; they might appoint persons to account for the whole or the greater part of ample salaries; and they had other patronage (and still have), by which members of their families might be provided for; while the other Justices of those courts had four thousand a year, out of which the expenses of two circuits were to be defrayed, the chiefs only going one. Even now, when the salaries of the puisnes are greatly increased, and the emoluments of the chiefs regulated, the Chief Justice of the King's Bench has nearly double of the Puisne Judges, and considerable patronage besides. There is not the same disproportion between the chiefs and the puisnes of the other courts; but the former have, beside the higher dignity, about two thousand a year more in emoluments, and the precedence in choosing circuits, which mayat once save trouble and lessen expense. There is the same gradation in dignity and profit among the chiefs themselves; nor is it any answer to the inference plainly arising from hence, that the highest in rank and emolument is incomparably the most laborious, and, even as compared with the puisne judges, the worst paid; for we know by daily experience that men prefer the most troublesome employments, attracted by the splendour of distinction; and that, in choosing between two places, with reference to the profits merely, they do not so much compare their relative duties as their relative emoluments, willing to take that which yields most, without reckoning how much more labour it may demand: As long, therefore, as promotion in each court, and from court to court, is permitted, the desire of each puisne judge must be to reach the place of chief in some court, and of the chiefs, to reach the head each of a higher court.
The last ten or twelve years have assuredly produced more instances of such promotions than the whole of the late King's reign beside-- we might almost say the whole period since the accession of the House of Hanover, when the wise and salu
tary provision in the Act of Settlement came into operation, Since 1812, indeed, it has been the almost invariable practice to choose the chiefs from among the puisnes. What used for, merly to be the exception has become the rule, there having been but a single instance of departure from it. One ChiefJustice of the King's Bench has been appointed during this time, three of the Common Pleas, and four Chief Barons; and every one of these eight appointments, save one, has been by promotion from an inferior judicial situation. Equity, too, ac, cording to its established maxim, followed the common law in this particular; and for some years it actually happened, that the head of every one of the five ancient Courts, King's Bench, Common Pleas, Exchequer, Chancery, and Rolls, had been translated from an inferior judicial situation. At present, the same is true of all but the Court of Exchequer; and even that is hardly an exception; for the learned and excellent person who presides there, formerly filled the important quasi-judicial place of Master in Chancery. Most of the Chiefs we allude to have been promoted only once; but Sir V. Gibbs went through almost all the gradations; he was a Puisne Judge, Chief Baron, and Chief Justice, within four years, and was in all probability destined to fill a fourth place, had not his health obliged him to retire about the time of that vacancy occurring.
With us in Scotland, the system of judicial promotion, though somewhat differently constructed, is perhaps still more nicely calculated to keep up the same state of constant expectancy, so perilous to public virtue..Our Judges seldom rise to the head of their respective Courts; they do not move from one situation to another which is higher and better; but the process is, to speak in legal language, of a cumulative nature; they add one place to another, never dropping the old mantle when a new one descends upon them, but ascending in the scale of pluralities, till they have as many as three investitures at a time. First the Judge is a Lord of Session; then he becomes a Lord of Justiciary beside; and, lastly, the Lord of Session and Justiciary becomes a Judge of the Jury Court; but there is nothing in our law to prevent him from rising from that third stage through four others, and becoming successively chief of our four High Courts— being seven stages.' Before he becomes a Lord of Session, indeed, the chances are that he has passed through certain judicial stations of inferior note. Such was for many years the almost invariable practice;. of late, the settled order has been more broken in upon.
Let it not be supposed that we offer these remarks with the view of hinting at any invidious matter respecting the vener
observat free from Perhaj
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able persons in either part of the Island, who hold those ex-. alted situations in the law. There never, perhaps, was a time when the individuals were more free from suspicion of sinister motives, and when the observations suggested by the natural tendency of the system were so much more of a speculative, than a practical cast. For this very reason, the present is the, fittest time to urge these observations, when we may freely discuss the thing apart from all scruples of delicacy touching the men. . But neither let us be told of such a regular system of temp-, tations, successively provided for the Judges in all our Courts, being innocuous to their virtue, merely because some men may be found who are proof against its naturally seductive tendency. There were men, no doubt, who dared to do their duty on the Bench, when their sudden degradation might be the first fruits of their integrity. Powell and Holloway made their names justly famous, by a faithful discharge of their duty in the face of the Tyrant, who wreaked his impotent vengeance upon them on the eye of the great consummation by which himself was hurled from his throne. In a former age, Hutton and Croke had given judgment according to their consciences, when every other sage of the law yielded to his fears of Royal, displeasure. * But does any one argue, from such rare in-, stances, that the dread of losing their office had no influence over the Bench at large, when we know that Coke's high spirit, which at first stood out against it, afterwards succumb-, ed, and that Bacon distinctly counselled the King to act upon, it in overawing his Judges ? + If such fears are admitted to
* It is however remarkable, that both those Judges, in the first instance, joined the other ten, and gave their extrajudicial opinion în fa. vour of Shipmoney ; and that Croke had prepared his argument (according to Whitelocke) for supporting the same opinion on the Bench, when his wife, a woman of high spirit, told him- She would rather live in • poverty with him, than occasion him to do any thing against his con
science ;'_which gave him courage to avoid the crime he was about to commit. This anecdote sufficiently proves the natural operation of their dependant situation on the minds of Judges in those days. How little the judgment of the majority was misunderstood even by those for whom it was formed, may be gathered from Charles I. always calling Hutton · The Honest Judge.'
ot" To be plain with your Majesty,' (says the Attorney-General, after speaking of removing some puisne Judge,) • I do not think there is • any thing a greater Polychreston, ad multa utile, to your affaires, than, • upon a just and fit occasion, to make some example against the pre4sumption of a Judge in causes that concern your Majesty, whereby
have made the independence of the judicial character a mere name, where the question was between the interests of the * Crown and the liberties of the subject, it seems absurd to. doubt, that a great practical effect must be produced in the same direction, by the constant operation of hope and expectancy. This is not perhaps so strong a hold as fear; but it is 'more unceasing in its agency; and it affects spirits which "might be found incapable of submitting to the other and baser consideration. In one particular at the present day, it is clearly even more important to secure the Judges from this influence, than it would have been to make their places independent of the Crown. No minister durst have recommended the dismissal of a Judge for his official conduct; but any one may in all safety recommend the promotion of him whose obsequiousness in any inferior station has pointed him out as likely to prove serviceable in a higher place; and the proofs of that obsequiousness may be given far more securely, when the general purpose is to show a fitness for promotion, than if the object were to avoid present removal. If, indeed, the higher station be actually vacant, or held by one in the article of death, no very forward display of political subserviency might be expected, even by the most eager candidates for preferment; because the eyes of men would be pointed to the conduct of the party; but at other seasons, when the public jealousy is asleep, the wakeful selfishness of individuals may have abundant opportunities of displaying judicial qualities so dear to all in high authority, whether princes or their ministers, who have learnt that the true way of governing without restraint and without hazard, is to work through agents willing and able decently to make the laws bend, rather than violently to break them. * As it is manifest that this is the sort of conduct of these instruments of power from which, in modern times, we have the most to fear, so is that kind of influence chiefly to be guarded against which is best adapted by its nature to convert the Judges into such instruments, and train them to pursue such conduct.
" the whole body of those Magistrates may be contained in better awe.' -(Cabala, p. 32.)
* The irreparable injury done to Charles I. by the too great and open profligacy of his Judges in the case of Shipmoney, has been remarked by Clarendon, who speaks plainly of the deserved reproach and infamy,
that attended them ;' and beautifully observes, that if these men had : preserved the simplicity of their ancestors, in severely and strictly de
fending the laws, other men had observed the modesty of theirs, in humbly and dutifully obeying them.'-Hist. I. 55.