THE 
 
 ^IPtlSH JUDICATURE BILL 
 
 BETWEEN "THE HOUSES.' 
 
 BY 
 
 THE RIGHT HON. J. CHRISTIAN. 
 
 DUBLIN : 
 HODGES, FOSTER, AND CO., 
 
 PUBLISHERS TO THE UNIVERSITY. 
 
 1874. 
 
. 04-1 
 
THE IRISH JUDICATURE BILL. 
 
 The Irish Judicature Bill has left the House of Lords in the 
 shape in which, it ma}^ be presumed, its all-powerful and self- 
 sufficing sponsor has determined that it shall become law. 
 It is not likely that it will undergo much modification in the 
 House of Commons. English Members will be indifferent — 
 Irish, probably, unregarded. For, setting aside the official 
 who will have charge of the Bill, and who, as regards its 
 most grievous shortcoming, can hardly be said to be quite 
 impartial, ther^ is but one other Irish lawyer of commanding 
 note in the house, and he has already, quite recently, favoured 
 it with his own peculiar views as to the source from which to 
 draw purification for the Irish Bench. So that, on the whole, 
 it may be anticipated that unless some Scotch Member or 
 two shall provoke an international altercation, the Bill will 
 pass the Commons with little or no serious criticism. And 
 as praise without discrimination seems to be the mot cVordre 
 in the London Press, it is as well that, at this moment of 
 transition from the one House to the other, at least one im- 
 partial and earnest voice should be heard to suggest that 
 excellent as the measure may be in the main, it shares the 
 infirmity common to all human things of not being absolutely 
 without faults. 
 
 The amendments which were inserted at the last moment 
 in the Lords have altered the Bill more materially than seems 
 to have been generally realized. The old and new clauses 
 do not harmonize very well altogether, but the result seems 
 to be that, ultimatelv, two of the most obnoxious features 
 
will have disappeared. The threatened Common Law Judge- 
 ships are to he spared, and the separate Banki'uptcy and 
 Insolvency Court is to vanish. "When the first vacancies 
 shall occur in the Common Pleas and Exchequer Divisions, 
 instead of heing, as originally intended^, left unfilled, they will 
 he supplied, the former by the Judge of the Probate Court, the 
 latter by one of those of Bankruptcy, The existing jurisdic- 
 tions of the transferred Judges will follow them to the Courts 
 to which they shall be attached, and the special tribunals will 
 cease to exist. Those Judges and their successors will be, to 
 all intents, and for all purposes, Common Pleas and Exche- 
 quer Judges, and thus, the *' twelve" vn\\ be maintained, 
 and, as a consequence, it may be presumed, the Six Circuits 
 left untouched. This, so far as it goes, is unqualified im- 
 provement. Of all the false lights supplied to Lord Cairns 
 by his L'ish ad^dsers, there was none more deceptive than 
 that which indicated the Common Law Bench and the Circuits 
 as the quarter to select for a display of zeal for retrenchment. 
 There is nothing else in the Judicature to compare with these 
 for the popularity they enjoy or the social uses they subserve. 
 If it be desirable that Something like respect for English law 
 shall be inculcated upon the Irish millions, it must be done 
 through the avenues by which alone they are accessible — 
 their fears and their imaginations. For nine-tenths of them, 
 the prestige and majesty of the law have been embodied in 
 the Judge of Assize. Without those, the pro^rincial notions 
 would be drawn from the Petty Sessions Court, elevated by 
 the periodic apparition of the Assistant Barrister. I observe 
 in the last Report of the Judicature Commission strong re- 
 commendations for a centralizing of Assizes' business, a 
 diminution of Assize towns, and the like. That may be very 
 well for England, where the law is respected for its own sake ; 
 but I venture to think it would be the extreme of mistaken 
 and unstatesmanlike policy for Ireland. Trivial as it may 
 sound to English ears, I am not ashamed to avow my own 
 conviction, that more of wisdom and of true state-craft, for a 
 
people like the Irisli, would be sliown by not only maintaining 
 the circuit system intact, but by enforcing a revival of the old 
 form and ceremonial with which the Judges used formerly to 
 be received and waited upon in the Assizes' towns, but which 
 of late 3'ears have fallen nearty into desuetude. That 
 however, by the way. Meantime, I believe there is no one in 
 Ireland who will not approve the relinquishment of the mis- 
 chievous purpose of cutting up the twelve Judges and the six 
 circuits^ and there are many who, along with the writer, will 
 equally commend the suppressal of the two smaller Bank- 
 ruptcy posts, as objectionable for the uses to which they were 
 capable of being made subservient as they were equivocal in 
 their well-lmown origin. The selection of the Courts which 
 are to be the recipients of thef transferred jurisdictions does 
 seem a little fantastic. As regards Bankruptcy, one would 
 have thought that the natm-al thing would be to restore that 
 jurisdiction to its ancient depository, the Court of Chancery. 
 In England it was taken from Chancery and given to the 
 Exchequer, for the sake of relieving a little the enormous 
 oppression of the English Chancery lists. In Ireland it 
 might have been thought that the converse object of eking 
 out the scanty and diminishing lists of the Chancery Judges 
 there would have been an additional motive for restoration. 
 As for the other special jurisdiction, the selection which has 
 been made for it will create some little amusement in Dublin 
 legal circles. Lord Cairns can hardly be supposed to be au 
 courant with the gossip of the Four Courts, nor, it is believed, 
 is he one likely to indulge in sallies of practical humour ; 
 and yet some suspicions of the kind will be suggested to 
 many by his selection of the Common Pleas as the future 
 Court for Matrimonial Causes. 
 
 It must be admitted on the whole, that in what the Bill 
 proposes to take from the Irish establishments, it has been 
 decidedly improved; but it is unfortunate that in what it 
 leaves, it will carry to the House of Commons its worst and 
 most discrediting defect. 
 
6 
 
 Lord Cairns, being Engiish in everything but birth, and 
 such acquaintance as he ever had with Ireland being in a 
 section of it for more characteristically English or Scotch 
 than Irish, dej^ended much, inevitably, upon Irish advisers ; 
 whose own judgments, unhappily, were not wholly outside 
 the range of disturbing influences. Hence the enormous 
 initial error of selecting the Common Law establishment as 
 the one that needed paring, while that of Equity was left 
 almost wholly untouched. To awaken attention to this sub- 
 ject is the object of this paper ; and_, for the information of 
 any members of the House of Commons who may desire to 
 know something about the true merits of the measure w^hich 
 they will be invited to support, it is proposed here to bring 
 together a few facts regarding the establishments for Equity 
 which the Bill found existing in the two countries, omitting 
 from each those Judges who are limited to appeals. 
 The comparison stood thus : — 
 
 For the whole Equity affairs of England, /oztr Judges of the 
 First Instance, viz., a Master of the EoUs and three Vice- 
 Ohancellors. 
 
 For the w^hole Equity affairs of Ireland, seven Judges of 
 the First Instance, viz., a Lord Chancellor, a Master of the 
 Rolls, a Vice- Chancellor, two Judges of Landed Estates, and 
 two of Bankruptcy. One of the Landed Estates' Judgeships 
 w^as temporarily vacant. 
 
 Thus it will be seen that as regards the number of Judge- 
 ships Ireland has actually the advantage by three. On the 
 other hand, it is notorious that in the quantity, the value 
 and the importance of the business, the disparity is over- 
 whelmingly in the other direction. I shall not now go into 
 details of which I have lately given some elsewhere. The 
 results which are disclosed by comparison of the lists of the 
 two countries are something simply astounding ; and the con- 
 trasts are growing, term after term, not more by reason of the 
 inflation of the English lists, than of the dwindling away of 
 the Irish. To keep far within the mark, it may safely be 
 
asserted that the work of the English four is at least four-fold 
 greater than that of the Irish seven. In fact, either the 
 English Equity Judges are in a state of slavery without 
 parallel, or the Irish ones are in a state, to put it mildly, of 
 but very partial occupation. 
 
 With this monstrous anomaly and contrast in full and 
 growing enormity, at length the time arrived when a grand 
 measure of reform of our whole judicial system occupied a 
 foremost place among the measures of a strong Government. 
 The qualities which have especially been arrogated for it by 
 its trumpeters are ''courage" and "completeness." How 
 did it, in its original form, and as it remained until a few 
 days ago, \dndicate its title to those attributes in dealing with 
 this vast abuse ? Simply by leaving unfilled the one vacancy 
 in the Landed Estates Court. The Bill, as originally drawn, 
 retained six Judges for Irish Equity, against four for 
 English ! 
 
 For an explanation of a short-coming so amazing, I can 
 suggest nothing but this — that some one clearly foresaw that 
 any move at all in the direction of the Chancery Judicature 
 could hardly fail to uncover a fact which it would be better to 
 keep veiled, namely, that the giant abuse — the monster legal 
 scandal and anachronism of the time — must be sought for in 
 the highest quarter. 
 
 It would have been anticipated, a priori, by any informed 
 and disinterested observer, that in a measure making such 
 pretensions, ushered in under such auspices and sustained 
 by such strength, the very first subject to be grappled with 
 would have been this appalling disparity. And by one 
 acquainted with the legal history of Ireland for the last five- 
 and-twenty years it would have been assumed as especially 
 certain that at last the Political Ii-ish Chancellorship had 
 reached the term of its existence. 
 
 Here lies, in truth, the very touchstone of good faith and 
 thoroughness in this boasted measure. Whatever else may 
 be its merits, its faltering at this crucial point has brought 
 
8 
 
 in question its claim to the merit not merely of completeness, 
 but even of single-minded earnestness. The scheme which 
 proposed to retain six Judgeships of the First Instance for 
 Equity in Ireland, with still at their head the damaged and 
 discredited political Chancellorship, while, at the same time, 
 challenging admiration for its boldness in striking off two of 
 the Common Law Twelve, was scarcely one to call for the 
 paeans with which a portion of the Press saluted it. 
 
 Of his reasons for this opinion the writer now proposes to 
 give an outline, which will enable his readers to judge for 
 themselves whether his views be well founded or not. 
 
 There are some points upon which all will probably agree 
 in the abstract, though they may differ when it comes to 
 l^articular applications of them. No one, for example, will 
 deny that a political Judge is abstractedly an evil thing. 
 Even the Chancellorship of England has been strongly ob- 
 jected to in that light, and it has been often urged by publi- 
 cists that it ought to be made either wholly political or wholly 
 judicial. What the union of those two functions may lead to, 
 even under conditions the most favourable, has been exem- 
 plified in the instance where even a nature so pure and candid 
 as Lord Hatherly's could not save itself from being dragged 
 through the mire of the audacious juggle with which the name 
 of the entirely blameless Sir Kobert Collier has been in- 
 separably coupled. 
 
 But if the thing be bad in England, what must it be in 
 Ireland? An English Chancellor is political only in the 
 higher sense that he assists in the deliberations of the 
 Cabinet, takes charge of its legal measures, and sometimes, 
 not often, defends its general policy in Parliament. An L'ish 
 Chancellor, as they have been since the office became merely 
 Irish ; shares actively in the details of executive administration. 
 What would be thought in England of a Chancellor who would 
 be a daily haunter of the Home Office — and what is the Home 
 Office compared with the Under-Secretary's Eoom or the 
 Law Ptoom, in Dublin Castle? A modern Irish Chancellor 
 
9 
 
 of the right sort gives his attendance at the Castle at least 
 as regularly as in his Court. In fact he passes almost daily 
 direct from the latter to the former. There, he will be in the 
 very hot-bed of all that is worst and most demoralizing in 
 provincialized administration — the focus of all the paltry 
 squabblings and rivalries, one side or other of which may be 
 represented and embodied in his own official and political 
 existence. In Ireland, politics are animosities. There is no 
 such thing as an impartial public opinion. There is no great 
 central mass, as in England, usually inert, but sure now and 
 then to be roused, and then to fling itself with resistless 
 weight into the scale with one party or the other, as was so 
 signally exemplified at the last General Election — a power 
 the mere existence of which, even when in slumber, holds the 
 active and combatant parties in salutary check. In Ireland, 
 instead of this, there is the never-ceasing war of races, of sects 
 and of factions. There is no moderating force between them. 
 Nothing is too black for them to think and say of each other. 
 If there be a Chancellor who is known to be holding his office 
 by the favour of the one, and, possibly, with no other recom- 
 mendation but that, he will be sure to be distrusted and de- 
 spised by the other; the judicial prestige and repute will 
 gradually ebb away from him, and he will come at last to be 
 thought of in the light of a mere thick-and-thin partizan. 
 Since Sir E. Sugden's departure in 1846 this noxious evil 
 has been gathering to a head, until, at length, it culminated 
 at a height which can hardly be over-topped, but will surely 
 not remain unemulated. For it has been all but avowed that 
 the first use of the office is to place in the hands of an in- 
 coming minister the highest bid he can make in some quarter 
 from which support or forbearance will be needed for his 
 policy. If professional merit and political expediency can be 
 found united in the same person, well and good, but if not, 
 so much the worse for professional merit. No wonder, then, 
 that a certain party should desire that the making of the 
 Judges should be confided to the Chancellor, for that would be 
 
10 
 
 to consign it, by-and-by, to a power whicb has shown ere now 
 that it can make the Chancellor himself. 
 
 Another proposition I will lay down which no one will 
 dispute in the abstract. The salaries of Judges should bear 
 a just proportion to the earnings of the Bar from which those 
 judges are taken. They should be large enough to insure at 
 all times the command of the best men, but not so large as 
 to suggest the idea of some sinister consideration. The 
 English scale is certainly not in excess of that standard. It 
 is well known that, there, barristers often lose in income by 
 accepting the Bench. Even the Chancellorship itself, if 
 nothing but income were thought of, would be no temptation 
 to a Bethell or a Cairns or a Palmer. But how is it in 
 Ireland ? I do not believe that there is at this moment at 
 the Irish Bar more than one, if there be even one, who is 
 realizing by private practice iBSOOO a-year, or that there are 
 half a dozen who are making so much as i02OOO. The con- 
 sequence is that a Puisne Judge's salary of less than a£3700 
 has never failed to command the services of the very foremost 
 men in the profession. The Irish Bench is crowded with 
 Ex-Attorney-Grenerals. Of the nine existing Puisnes there 
 are only two who did not pass direct from the first law of&ce, 
 and so did the Master of the Eolls, the Yice-Chancellor and 
 the Judge of Probate. Among all these the highest salary is 
 d£4000, and as to all save two it is under iC3700. How then 
 is it to be accounted for, that there is one legal office so out 
 of all keeping and proportion with the National Bench and 
 Bar as that it is endowed with a salary much more than 
 twice as great as that which the very first man of the day will 
 always gladly accept, with a personal following costing 
 £4500 more, a retiring pension of £4000 (three or four of 
 them usually co-existing,) and other allow^ances; making 
 altogether, for that one office, a cost to the public treasury of 
 some £25000 a-year ? 
 
 The origin of the anomaly is not far to seek. The Chan- 
 cellor was formerly the speaker of the Irish House of Lords ; 
 
11 
 
 and after his deposition from that station, the office was made 
 to serve a much more useful purpose, that of consolidating the 
 Union hy attracting eminent English lawyers to the head of 
 the Irish Bench. But, with that ohject, the English standard 
 of Bar incomes, not the Irish, was the one that must he had 
 regard to. 
 
 By two Statutes passed in 1832, the remunerations of all 
 the great judicial officers in hoth Kingdoms were, in lieu 
 of all other emoluments, commuted to fixed annuities — the 
 English Chancellor to ^914000, the Chief Justice, £10000, 
 the Chief Justice of the Common Pleas, £8000, and the 
 Chief Baron, £7000. The Irish Chancellor was fixed at 
 £8000. Nor was that excessive so long as the great object 
 which had justified the original scheme was kept in view. 
 But when that wdse policy was finally abandoned on the re- 
 tirement of Sir E. Sugden and the appointment of Mr. Brady 
 in 1846, the retention of that salary, with the other pro- 
 portionate appanages, became what it has been increasingly 
 ever since, an utterly indefensible abuse and anachronism. 
 
 What made this the more flagrant is that in deference to 
 public sentiment in England large portions of those English 
 salaries were afterwards relinquished — £4000 by the Chan- 
 cellor, £2000 by the Chief Justice, £1000 by the Chief of the 
 Common Pleas and £1000 by the Master of the Rolls. But 
 the Irish Chancellors held fast by the Act of 1832. 
 
 The picture would be imperfect without one fact more. The 
 English reductions were made in the face of enormously in- 
 creasing business. During the same period the work of the 
 pecuniarily immutable Irish Chancellor dwindled utterly away, 
 not, merely, from the general decay of the country, but be- 
 cause Act of Parliament after Act of Parliament was passed 
 for diverting it to other quarters. The Encumbered Estates 
 Court (1849,) the Bankruptcy Court, (1836-7,) the Chancery 
 Piegulation Act, (1850,) the Chancery Act, (1867,) with its 
 appointment of a Vice- Chancellor, left the Chancellor nearly 
 high and dry. All this I have spoken of more fully elsewhere. 
 
12 
 
 The result was that an unwatched economic ahuse grew and 
 flourished unnoticed for a quarter of a century, until in the 
 last lustrum of that cycle it rose to mere recluctio ad ahsur- 
 dum. 
 
 Such, then, was the history, and such the condition, moral 
 and economic, of this office of Irish Chancellor, when Lord 
 Cairns's native advisers came to trace for him the lines of his 
 great Irish Bill. How did they propose to deal with an insti- 
 tution which I venture to think I have shown had lagged 
 somewhat behind the time and required at least some careful 
 pruning? Well they have made of it the very enfant gate of 
 their Bill. It is not that it is merely spared by silence ; but 
 the 85th clause of the original Bill w^hich so sinisterly fore- 
 shadows a future reduction to the ranks of our three Chief 
 Judges and our Master of the Kolls, exempts the Chancellor, 
 while the 85th lays down with anxious iteration that the Act 
 shall in no way affect his office or his position or his patron- 
 age. And to make assurance doubly sure, among the very 
 latest amendments, and as if it were some great artist giving 
 the last fond lingering touches to the favourite bit of a 
 masterpiece, there is interlined in the same clause — ^' salary 
 or pension." Office, position, patronage, ''salary or pension'-' — 
 all these, whatever else may suffer, are to be kept sacredly intact. 
 The salary of iGSOOO, the pension of ^4000, the patronage of 
 i94500, the outfits of £'1000 — all the items which, between 
 incumbents ex and present, make up the usually existing 
 total of over .£25000, all are to be perpetuated lest the Empire 
 should lose the inestimable blessing of a political Chancellor 
 in Ireland. And there is a new provision enabling him even 
 to increase the salaries of his dependants ! 
 
 Doubtless it would in ordinary times have required some 
 moral courage to have faced the clamour that would have 
 saluted any attempt to deal with this gross abuse in an isolated 
 way. But we are now in a time of great^ Imperial recastings 
 both of jurisprudence and of judicatures, and with a Govern- 
 ment which arrogates the virtue that ought to accompany 
 
13 
 
 strength. And it is disheartening to find that, even with such 
 a work in hand, the ablest, the most self-reliant^ the strongest 
 reformer of judicatures that probably England has seen since 
 the days of the first Edward can not only find nothing in the 
 Irish Chancellorship to need rebuke or correction, but that 
 language must be ransacked for terms of conservation with 
 which to fence round its cherished and renovated life. 
 
 But, while the office is to remain thus unreformed as re- 
 gards tenure and endowments, a great change is about to be 
 made in its occupation. Instead of, as of late years, merely 
 " assisting " at the hearing of about thirty Equity appeals in 
 a year, with some other trivialities which, though they may 
 swell a return of sittings, were little more than make-believe, 
 the Irish Chancellor is nov/ about to be made the President 
 of a Court which will no longer be one for equity only, but for 
 Common Law, Criminal Law, Parliamentary Franchise 
 Law, and Land Act Law. The whole jurisdiction of the 
 Exchequer Chamber is be transferred — writs of error, bills of 
 exceptions, new trial orders — and not only those, but^ in terms 
 of the 19th clause, every judgment or order whatever that can 
 be made by any division of the High Court, or any Judges or 
 Judge thereof, with the trifling exceptions made in some later 
 clauses, will be appealable to the new Court. Nor is even the 
 Crown side of the Queen's Bench Division exempted ; so that 
 Mandamus, Prohibition, Criminal Information Orders, and 
 the like, appear all to be covered. 
 
 It must be admitted that this is a change which goes far, 
 if not the whole way, towards answering the argument for the 
 absolute abolishing of the office. The Chancellor may be ex- 
 pected to be henceforth fully, and perhaps even onerously 
 occupied. In addition to the review of ten separate tribunals 
 which belongs to the present Court of Appeal, some of the 
 most arduous and responsible of the duties hitherto of the 
 Common Law Judges .will now be cast upon him and his tw^o 
 colleagues. These latter, by a curious (but, I am sure, 
 merely thoughtless) combination of details will tend inevit- 
 
14 
 
 ablv. sooner or later, to fall into the hands of men of the 
 second order. It is the Chancellor, therefore, that must be 
 looked forward to as the mainstav of that Court, and if he be 
 a strong man, he will be supreme in it. But while all this 
 goes far to justify the retention of the office, it adds over- 
 whelming strength to the ease which demands that its holder 
 shall be removed from the evil influences that spring from 
 precaiiousness of tenure and distractions of politics. 
 
 That is the point of view of expedienev, but there is higher 
 groimd to be taken. Were the Peers of Ensjland still under 
 the spell of that same unaccountable apathv which caused 
 them to let slip awav, a lm ost silently, one of the main anchors 
 of their own order, when, in an assembly containing not only 
 great lawyers but constitutional statesmen, it passed un- 
 noticed that this Bill inrades one of the fundamental princi- 
 ples of the EeTolution Settlement "? By the Act of Settlement 
 it is laid down as a main bulwark of '"the rights and liberties 
 of the subject " that " Judges Commissions be made quamdiu 
 se bene gesserint/' and that tbev be irremoTable sare on the 
 address of both Houses of Parliament. The Chancellor was 
 not then within the meaning of that law, for he was hardly a 
 judicial officer at all, the vast bulk of Equity beiog the 
 growth of later times; and the Judges understood to be dealt 
 with were those familiarly known as the '"'Judges of the Land." 
 But how will it be with the Irish Chancellor after this Bill 
 shall hare become law *? He will have stepped into the place of 
 the "Judges of the Land^" as to some of the most delicate, 
 responsible, and critical of their functions, ciyil and criminal. 
 You may go on calling such a Judge Lord Chancellor, but 
 there is no magic in a name. To every substantial intent 
 he will be within both the spirit and the letter of the Act of 
 Settlement ; and I maintain that that great fundamental law 
 of the constitution will be inyaded, unless in tenure and per- 
 manence he be assimilated to aU the others of the order whose 
 independence it so anxiously guards, and to whom he is now 
 about to be annexed. 
 
15 
 
 It is true that the judicial integrity is no longer menaced 
 from the quarter against which that enactment was directed. 
 But its protection is as much needed as ever, and against in- 
 fluences all the more dangerous that they are more insidious 
 and self-deceptive. Instead of dependence upon the Crown, 
 dependence upon Party — interested self-deception — temptation 
 to show oneself worthy of past fayour, and deserving of future 
 patronage. Fancy in that position some man of the sort of 
 invertebrate pHancy of nature, which is not uncommon in Ire- 
 land, which for want of stable notions about anything, takes 
 up with the pressure, the expediency, the interest, the party 
 cry of the moment, adopts them as the substitute for indepen- 
 dent opinion, and persuades himself that in obeying them he 
 is acting upon beliefs his own. Xothing will keep snch a 
 man safe from his own weakness but the consciousness of ab- 
 solute independence — the knowledge that there is nothing left 
 for him further to hope or to fear. 
 
 Among the jurisdictions about to be transferred, there are 
 some to which the foregoing considerations have especial ap- 
 plication. They are at present vested in the general body of 
 the judges, and without any appeal, as they will be also in the 
 new Court. It is these that have sometimes brought into 
 prominence the least favourable aspect even of our entirely 
 independent Bench. Cases which drew into conflict the class 
 interests of landlords and of tenants or affected the balance 
 of parliamentary constituencies have repeatedly exhibited 
 Courts divided according to the known political proclivities of 
 their members. Some decisions have been made by majori- 
 ties in Land Cases Reserved which, to the common under- 
 standing, seem simply astoimding. This has been due 
 mainly to the unprecedented and most unconstitutional frame 
 of the first section of that Act, which, as to what is c^ed the 
 Ulster Custom, placed the tribunals in the position less of 
 Courts of Justice than of supplementary legislatures making 
 a law for each case. Not much harm has as yet been done, 
 because, it being known that those Judges were raised by 
 
16 
 
 their tenure above the reach of all undue influence, no one 
 ever dreamt of imputing to them anything worse than an un- 
 conscious yielding to prepossession. But fancy some possible 
 Chancellor of the future hearing land questions which inflame 
 the passions of classes, or registr}^ questions which will turn 
 the scale in a borough or a county, and knowing that he is 
 closely watched, and that, just as he shall demean himself, 
 so will he win or lose the favour of some anti-English faction 
 or sect to whom his own official existence may be owing, and 
 by whose tolerance he may be even then holding it ! Well, 
 he may rise superior to that ordeal. But will he get credit 
 for doing so ? It has been well said that it is of less conse- 
 quence that a Judge should be pure than that he should be 
 believed to be pure ; and that man must know but little of Ire- 
 land w^ho would suppose that a political Chancellor in such a 
 strait would be believed to be pure. His decisions would be 
 cavilled at, his honesty impugned, and justice poisoned at its 
 source. To give to a dependent partizan this unappealable 
 authority over the controversies of the special Irish Land and 
 Parliamentary laws, is scarcely a whit less abhorrent to con- 
 stitutional principle than it would be to make him and his 
 colleagues supreme arbiters over the decisions of the Election 
 Judges. And who can say that even to that we may not 
 come in time. Fancy a Gladstone Chancellor sitting in re- 
 view upon the two Galway Judgments ! 
 
 One thing is certain. If the state of the Irish Chancellor- 
 ship be a fit subject for revision at all (and will anyone, not 
 blinded by interest, say that it is not ?) now or never is the 
 time. For the issue now at stake is not merely whether it 
 shall be negatively and temporarily spared, but whether its 
 effete and corrupted life shall be galvanized and re-accredited, 
 with adaptability for evil uses incalculably enlarged. The 
 mischief will lie dormant for a time, and probably a consi- 
 derable time, for it happens that the first appointment will 
 be an unexceptional one, but we must look a little before us 
 when laying down a system which is meant to be permanent. 
 
17 
 
 It is customary to hear from interested defenders of the 
 status in quo plausible platitudes about its being part of a 
 larger subject, and how it is wrapped up in the general ques- 
 tion of the Irish governmental system, for a change in which, 
 it is said, the time is not yet ripe. Well it is a very hacknied 
 form of fallacy to assume identity between two things which 
 have no necessary connection, in order that the known diffi- 
 culty of dealing with the one may throw a shield over the 
 other. Governments can go on quite as well without an 
 intermeddling Chancellor. Whether he would meddle at all, 
 or how far, has always been at his own choosing. Our 
 greatest and best, those to whose names we turn with pride — 
 Eedesdale, Hart, Sugden — what share did they ever stoop to 
 in the defiling jobberies which make so large a part of what 
 are called politics in Ireland ? These were not the men to 
 be seen passing daily from the bench of justice to the Castle. 
 All the stock topics about the indispensability of some such 
 office for purposes of state or administration, supervision of 
 Magistracy, or the like, are mere interested fictions, phan- 
 tasmal idealities which need only to be confronted to be 
 made to vanish into space. As to the last named purpose, it 
 is unmingled evil that it should be in the hands of a partizan ; 
 whose rebukes and lectures excite, if he be a strong man, 
 anger and defiance, if a weak one, derision and scorn. 
 
 But the English Chancellor is political, why not, then, the 
 Irish one ? Words, without substance. Day and night are 
 not more opposite than those two offices. The former is in 
 keeping with its country and its bar. The most audacious 
 of ministers would not dare to make a corrupt appointment 
 to it. The English Chancellor is no haunter of the Home 
 Office — still less is it possible that, there or in governmental 
 or administrative bodies, he could be the delegate and repre- 
 sentative of an ill-afi'ected and aggressive power. And as for 
 his judicial work, it will be that of Imperial Appeal only. By 
 the now pending Amendment Bill the Imperial Court of 
 Appeal will consist of two parts — first, the First Divisional 
 Court, second, all the other Divisions. The former alone 
 
18 
 
 will be the real Court for Imperial Appeals ; the others will 
 be practically (and probably before the Bill passes, avowedly,) 
 a Court of Intermediate Appeal for England, The Chan- 
 cellor will naturally confine himself to the presidency of the 
 former, and he will sit there surrounded by many others of 
 his own type and grade. The Irish Chancellor, on the other 
 hand, will be to all intents a Judge Ordinary of Intermediate 
 Appeal, taking the common run of equity and common law 
 and criminal law, and the politico-legal work of the Land Act 
 and the Parliamentary Voters' Acts. A transitional party- 
 satellite put to w^ork like that, and, in its most crucial branches, 
 without the check of a possible Appeal ! That will be a judi- 
 cial sight such as for nearly two centuries has not been seen 
 in the British Islands. 
 
 The Attorney- General for Ireland, a few days ago, opposed 
 a motion for giving the appointment of the Irish Common 
 Law Judges to the Chancellor, "to the same extent as in 
 England" upon the ground that "the Irish Chancellor is a 
 political officer, that he is appointed wdth a view to politics 
 and changes with the Government of the day" — a distinct 
 recognition of the undoubted truth that the political attri- 
 butes of the Irish office are essentially different from those of 
 the English one. And if that difference be such as to forbid 
 that the Irish officer should be entrusted with the appointing 
 of the Judges "to the same extent" as the English, one, it 
 ought surely to be of equal force to forbid that, while con- 
 tinuing thus political, there should be handed over to himself 
 the functions of those very Judges. 
 
 Nor should we overlook the bearing of this upon the issue 
 of success or failure of the New Court of Intermediate Appeal. 
 Nothing could be more infelicitous than the constitution that 
 is proposed for it. Its Presidents will be fluctuating, coming 
 and going with Governments. They will vary indefinitely in 
 merit. It may happen that just when one will have begun 
 to be aufait at his work he will be displaced by a successor, 
 in the selection of whom merit will have held but the second 
 place, so that to-day you may have an accomplished Judge, 
 
19 
 
 to-morrow, a charlatan. Nor is there much hope that this 
 will he redressed by the two permanent members ; for it is 
 one of the felicities of the Bill that it has so bettered the 
 position of the Judges of the first instance, both materially 
 and functionally, relatively to those of Appeal, that no one 
 who can command a choice will prefer the latter. Judges 
 of already proved ability, and the more eminent of the Bar 
 will hold back, and the supply will too often have to be drawn 
 from a lower stratum. While the Bill is yet unpassed the 
 GoYernment have in their hands a pressure which might be 
 so used as to guard their first appointments from this danger, 
 but once the system is established, it will in time bear its 
 natural fruits ; and one of those will be that the Court of 
 Appeal will have fastened upon it a reputation of inferiority 
 to most of those whose decisions it will review, and all cases 
 that can bear the cost will be carried on to the Imperial Court. 
 Criticism is but a barren thing after the conclusion has 
 been foregone, and to speculate on what might have been is 
 is perhaps now but matter of curiosity. Still one cannot 
 help indulging in a retrospect of what might have happened 
 had Lord Cairns been as fully master of the Irish legal 
 specialties as he is of those of England. Certainly, to an 
 ordinary apprehension it might have seemed that when some 
 strong and resolute reformer, who would rise superior to 
 ephemeral party ties and interests, would come to take in 
 hand the so long vexed subject of the Irish Judicature, the 
 very first thing he would lay his grasp on would be the fla- 
 grant monstrosity of seven Judgships of the first instance 
 for Irish equity, with the giant waste and anachronism of 
 the Chancellorship at their head. He would have begun at 
 the top. If he retained the Chancellorship at all, he would 
 have so remodelled and reconstituted it as to bring it into 
 harmony w^ith the times and with the new duties which he 
 was about to impose upon it. He would have made it per- 
 manent and non-political as enjoined by the Act of Settlement. 
 He would have reduced its salary to the very respectable 
 figure of £6000 a year, equal to the judicial salary of the 
 
20 
 
 Lord Chancellor of Great Britain, exceeding hj JGIOOO those 
 of all our Chief Judges, and at least double the largest income 
 which the practice of the Irish Bar is now capable of yielding ; 
 and he would have cut dowTi, proportionately, its extravagant 
 and costly following. He would then have gone to the lower 
 grades. He would have struck off at one stroke the two 
 Judges in Bankruptcy and the two of Landed Estates. The 
 former, which had its origin in one of the most notorious 
 of jobs^ has since subsisted as an excresence upon our judicial 
 system. The reason for the special land tribunal came to 
 an end years ago, and it would have been displaced by a 
 Vice-Chancellor so long back as 1857, if the measure of 
 Lord Palmerston's Government had not been obstnicted by 
 the use of tactics common in the House of Commons in 
 those days, when everj- Irish measure involring a bit of 
 patronage was fought over by the Irish parties, in of&ce or 
 expecting it. The place of the suppressed Banki-uptcy Judges 
 would be supplied by simply restoring their jurisdiction to 
 its former depository. Chancery, with power, as now in 
 England, of delegation to a competent Registrar, and aid, if 
 found necessary, in country cases, from the Assistant Barristers. 
 The place of the Landed Estates Court would be supplied also 
 by restoring those affairs to the same original depository, con- 
 ferring on it all the special powers regarding Parliamentary 
 Titles, and transferring, along with the jurisdiction, the pre- 
 sent Judge, in the quality of a Yice-Chancellor. It appears 
 from a statement made in the House of Lords that that 
 learned Judge has reported that he needs no assistance, but 
 should he, or any successor of his find it otherwise, his 
 brother Chancery Judges would be at hand to afford it. The 
 footing on which these changes would have placed the estab- 
 lishment of first instance for Irish equity would be simply 
 this — instead of seven judges, four — a Chancellor, a Master 
 of the Rolls and two Yice-Chancellors ; or, supposing 
 that the Chancellor would confine himself to Appeals, then 
 three, which, seeing that there are only four for England, 
 would surely seem to be a not inadequate allowance. All 
 
21 
 
 the Divisions of the High Court would be compact and homo- 
 geneous both in composition and in function, whilst, most 
 precious boon of all, the Chancellor would be made to be a 
 Judge instead of a partizan, and the cost of himself and his 
 following brought within the bounds of moderation. 
 
 Instead of this we have seen a Bill which retained six of 
 of the seven Judges, while it hedged the Chancellorship round 
 wdth a very tautology of conservation. The first evil has since 
 been so far modified that two Judges are to be struck off, 
 but their jurisdiction instead of being restored to its original 
 owner, has been sent across the Hall to the Exchequer. The 
 only motive that can be imagined for this piece of seeming 
 caprice is that something like it had been done last year for 
 England ; but it seems to have been quite overlooked that the 
 reason for the change there, namely, the state of their Chan- 
 cery lists, weighs here entirely in the opposite scale. Surely, 
 in all conscience, a Lord Chancellor, two Lords Justices, a 
 Master of the Eolls, a Vice-Chancellor, and another Judge, 
 who, though still for some mysterious reason to be called 
 " of the Landed Estates Court," will be to all intents a 
 second Vice-Chancellor, ought to be an ample establishment 
 for Equity in Ireland, without the fanciful and far-fetched 
 intricacy of sending a department of its proper business to a 
 Court of Common Law. But, we are not without some 
 compensation here. If it be this that has furnished the 
 excuse for retracing the false step of proposing to strike off a 
 Baron, we may well be content. The Common Pleas and the 
 Exchequer may rejoice, each in its fantastic annexe^ if that 
 shall be the means of preserving them in unmutilated num- 
 bers. 
 
 But the Chancellorship stands erect, and after it shall have 
 had added to it's existing idiosyncracies the proposed new 
 jurisdictions, it will surely present a combination — ^judicial, 
 economic and constitutional — the like of which has not yet 
 been seen in the United Kingdom. It will be a curious study 
 to note the passage of the Bill through the House of Commons 
 — to see whether the mesmerized silence of the Peers will 
 
22 
 
 pursue it there ; or whether out of the three nationalities there 
 will be found one single member to utter so much as a pro- 
 test against a scandal which in England or Scotland would 
 not outlive a single session. 
 
 The truth is that Lord Cairns needed guidance in these 
 small Irish matters, and he was not happy in what he found. 
 He did not deign to communicate with the Irish Judges — 
 certainly not as a body — whether with an}^ of them individu- 
 ally I am unable to say. Such prompters as he had seem to 
 have lacked prescience or impartiality. Of authoritative 
 Press criticism he had not the advantage at all ; for the 
 matter being merely Irish, most of the journals and periodicals 
 were either superciliously indifferent or languidly laudative — 
 while the few who w^ere warmer in commendation were also 
 somewhat undiscriminating. In Ii'eland itself, the self- 
 asserting and out-speaking classes made their voices heard, 
 but their utterances smacked too much of class interests to 
 carry the weight that might have been hoped for. The two 
 professional bodies were but imperfectly appreciative of the 
 merit of cutting down Judges or their staffs, while Dublin 
 corporators and shop-keepers had for their one simple creed, 
 that the grand desideratum was to have as much public money 
 as possible expended in Dublin. Meantime those whose inte- 
 rests were really at stake, the inarticulate masses, remained, 
 as in so many other things in Ireland, tongueless or over- 
 borne. 
 
 We are compelled the more to regret that Lord Cairns did 
 Bot keep this Irish Bill more exclusively in his own hands, 
 when w^e see the effects of his untrammelled action in the 
 companion measure of the Session. He has rejected wholly 
 the plan brought forward last year by the late Government for 
 bringing Ireland and Scotland under the Court of Appeal as 
 constituted by the Act of 1873. Had that plan passed into a 
 law, as beyond doubt it would have done if that Government 
 had remained in power, nothing could have prevented the 
 jurisdiction of Final Appeal for Ireland from settling down 
 into the hands of an Irish quorum, sitting in Dublin and 
 
23 
 
 presided over by the political Chancellor — than which any- 
 thing more disastrous to the connection between the two 
 countries the most perverse ingenuity could not have devised. 
 The incredible short-sightedness with which this plan was, not 
 merely approved, but even grasped at, from the then opposi- 
 tion side, ought to have made Lord Cairns chary of putting 
 faith in Irish counsels. From that danger we have been 
 happily rescued by his foresight and firmness. But I trust 
 the lesson will not be lost sight of hereafter, when nominating 
 members to the ''First Divisional Court of the Imperial 
 Court of Appeal," which First Divisional Court will be the 
 only truly Imperial Court of Appeal. I earnestly hope that 
 the mistake will not be fallen into of thinking it sufiicient 
 qualification that men are holding or have held some Scotch 
 or Irish office. I go farther than that. I think this First 
 Division should be jealously guarded as the very innermost 
 sanctuary of approved judicial excellence ; and that as there 
 are certain of her Majesty's regiments which are recruited 
 only in England, so this corps cVelite of the law, this creme 
 de la creme of the whole judiciary of the Empire, should be 
 manned exclusively from that quarter where alone there ever 
 have been or ever can be found the authoritative masters and 
 expositors of the English Law. 
 
 Dublin, >w, 1874. 
 
 Since the foregoing was written the House of Commons 
 print of the Bill has been received, and, if it means what it 
 says, it really does seem that the writer has been fighting 
 with shadows. By the 12th Clause it is provided that every 
 Judge of the High Court (that includes the Chancellor) shall 
 hold his office for life, subject to removal by Her Majesty on 
 an address from both Houses — that no Judge thereof shall 
 be capable of being elected to or sitting in the House of 
 Commons — and that every Judge thereof " other than the 
 Lord Chancellor " shall take certain oaths. It is as plain as 
 words could make it that the Lord Chancellor is within ever\' 
 
24 
 
 portion of that Clause, except the one from which he is ex- 
 pressly exempted, and, if there were nothing more, the per- 
 manency of his tenure would be fully secured. 
 
 Again, as to salary. By Clause A. (p. 9 of the print) it is 
 provided that there shall be paid to the Lord Chancellor and 
 other Chiefs '' the same annual sums which the holders of 
 those offices respectively receive at the time of the passing of 
 this Act." But there is not at present any holder of the 
 office of Chancellor and the Commissioners who are tempo- 
 rarily discharging its duties receive no salaries. Therefore, 
 unless the Chancellor shall be appointed before the Bill re- 
 ceives the Eoyal assent, he can according to this Clause be 
 paid no salary at all. 
 
 To be sure there is the general saving in the 86th Clause ; 
 — but that is subject to the qualification ''except so far as 
 herein is expressly directed " which removes out of the saving 
 the subjects of Clauses 12 and A. So that it really does 
 seem as if we were going to get an excellent Chancellor for 
 life and gratis. It is possible that this may not be the actual 
 intention of the draughtsman, but, if it be not, he ought at 
 least to make what he does mean simple and unambiguous. 
 
 Another point is worth mentioning because, unless it shall 
 be cleared up, it might occasion serious embarrassments 
 Clause 6 provides that if at the commencement of the Act 
 " the number of Puisne Justices and Junior Barons shall 
 exceed seven in the whole, no new Judge of the High Court 
 shall be appointed in the place of any such Puisne Justice or 
 Junior Baron who shall die or resign while such whole num- 
 ber shall exceed seven." By Clause 30 (p. 22 of print) it is 
 provided that the " Queen's Bench Division shall have not 
 less than four Judges." Suppose, that after the commence- 
 ment of the Act, the first vacancy that happens among the 
 nine Puisne Judges should be in the Queen's Bench Division — 
 which of those two Clauses is the Government to obey — the 
 6th, which peremptorily forbids that such vacancy be filled 
 up, or the 30th which with equal peremptoriness enjoins that 
 the Judges of the Queen^s Bench Division are to be never less 
 than four? "/ OUb 09 6 
 

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