the due administration of justice that the most highly paid and highest in rank amongst the judges should be Judges of First Instance. As to the comparative importance of the business of Judges of Appeal and Judges of First Instance, the following points are to be observed. In the first place, a large majority of the trials of any importance which take place in this country, and practically all trials in which the public take much interest, are trials by jury, or rather by a judge and jury. This is true without exception in regard to criminal trials, and true in a great majority of cases not criminal. In regard to these cases, all that a Court of Appeal ever has to do is to decide upon questions of law arising out of the trial, and the utmost stretch. to which their power can go is directing a new trial. The rights of the parties to an action, the fate of a man accused of a crime, depend in all cases upon the verdict of the jury, and this is influenced to a great extent by the summing up of the judge, and by his management of the trial. Perhaps not one case in fifty presents any difficulty in point of law. In all common cases the decision of the jury, under the direction of the judge, is not only final, but is unquestioned. In the second place, trial by jury is the really popular and impressive part of the administration of justice.2 It is understood by everybody. Everybody is interested in it. It is from such trials that every one, except a very small number of lawyers, derives his conception of the administration of justice and the character of the law. No one can ever have witnessed such a proceeding without being impressed by it, nor is any part of our institutions more characteristic. It is surrounded with ceremonies which I must confess do not appear to me to be in any degree inappropriate to the occasion, or liable to the charge of exaggerating its essential solemnity. If properly conducted, it may convey an impression of fairness, of dignity, and moderation calculated to give all who are present at it lessons not easily to be forgotten in many virtues. If improperly conducted, it may bring the most solemn institutions into contempt; but the tone and 1 I have tried hundreds of criminal cases, and I have reserved only one (R. v. Bishop, a case on the construction of the Act relating to Lunatic Asylums) for the Court for Crown Cases Reserved. The trial of that case took nearly two days. The point of law arising out of it was decided without the least hesitation, in less than half an hour, and was reserved not because it was really doubtful, but because the Commissioners in Lunacy wished to have the correctness of a certain interpretation of words on the Act put upon the highest accessible authority. In civil cases the proportion of cases in which new trials are moved for is larger, but it is very small. 2 In an interesting book just published (The Life of Sir Rowland Hill, i. p. 135) there is an account by Sir Rowland himself of the impression made on him in boyhood by a trial at Shrewsbury. Of all that passed before our eyes, or occupied our thoughts, during this ever-to-be-remembered visit, incomparably the most striking and impressive scene was a criminal trial.' He recollected the facts minutely, and described the whole scene picturesquely many years afterwards, when writing his recollections in his old age. general character of the proceedings depend to a great extent upon the judge. Hardly any one who does not pass his life in courts can know how constant are the demands made, not only or chiefly on his knowledge of law, or on his readiness in understanding intricate facts. and their bearings on each other, but on his temper, his good manners, his self-control, and his knowledge of mankind, and, in particular, on his sympathy with the feelings of those who appear before him, either as counsel, witnesses, or parties. It must also be remembered that there is much truth in the saying that a judge is an advocate who chooses his side. In summing up in a case in which strong feeling has been excited, and the ablest men at the Bar have been engaged on the one side and the other, powers are required of the judge which a man of great learning and with great capacity for understanding legal principles does not always possess, and he must also have an understanding of, and sympathy with, popular feeling which the habit of regarding everything from the purely legal point of view not unfrequently weakens. No one doubts the importance of the duties of a Court of Appeal. Its functions have a strong resemblance to legislation, and in the present day there is not the smallest reason to fear that they will be undervalued; but the qualities which I have been trying to describe are not required in the transaction of its business. The business itself is, as a rule, hardly intelligible to the public in general. The work is exclusively intellectual; there is nothing about it which appeals to the feelings, and hardly anything which even tries the temper. There are no witnesses, no jury, no prisoner, and the counsel have nothing to do but to convince the judges. The proposal to retain for the judicial Bench the services of the most distinguished members of the Bar by improving the position of the judges of the Court of Appeal is like trying to encourage surgery by holding out inducements to the best surgeons in London to accept positions in which they would only lecture and never operate. On the other hand, the qualities required in a Judge of First Instance are just the qualities which a man who rises to the very first places at the Bar must possess to a greater or less extent. Such a man must be in Parliament. He must have seen a great deal of the world. He must be known not merely to the legal profession, but to the public at large. He is sure to be a good and effective, and he is likely to be an eloquent, speaker. He is also sure to have had occasion to look at law and the administration of justice (which is not quite the same thing) from the political point of view, and to have had occasion to acquaint himself practically with the feelings and sympathies of popular bodies. Under the proposed new arrangements, the men who presumably possess these qualifications will either remain at the Bar or become Judges of Appeal. This proceeds upon the supposition that to try a man for high treason or murder, or for a seditious conspiracy, or to try a case of libel which may involve the character and prospects in life of an eminent public man, are duties which the most distinguished men at the Bar cannot be expected to undertake, their eminence being such that they ought to devote themselves exclusively to the decision of points of law; such, for instance, as the question whether the owner of one of two adjoining houses can acquire by lapse of time a right to throw an unusual degree of pressure upon his neighbour's wall without his neighbour's knowledge. This seems to me a mistake. I think that, if it is worth while to make law-officers, and men who look forward to holding such offices, judges at all, they ought to be put to the sort of judicial work for which they are presumably best fitted -namely, presiding over trials by jury; but I see no special good in inducing them to become Judges of Appeal by special pay and special rank. They will discharge such duties no better than men who are rather lawyers than advocates. Whether it is or is not worth while to retain the services of the most eminent advocates as Judges of First Instance, is a point on which every one can form his own opinion by reading the list of Chief Justices, Masters of the Rolls, and Chief Barons for the last fifty years given in the note, and asking himself how many of them would have accepted puisne judgeships, and how far the public interests would have been advanced by their being made Judges of Appeal.3 The substitution of four Puisne Judges for the four chiefs-for, as I have pointed out, it is impossible to justify the existence of the offices of the Lord Chief Justice of England and the Master of the Rolls on any grounds which do not apply equally to the two offices proposed to be abolished-would not only deprive the bench of a class of judges specially valuable, but would also make a great change in the relation between the Bench and the Bar-a matter in which the public have a greater interest than they may know. Till now a seat on the Bench has been the highest object of a barrister's ambition. Law Officers have indeed often refused puisne judgeships, but no instance occurs to me in which one of the chief justiceships has been refused. The result of the proposed change would be to alter this, and to call into existence a class of parliamentary barristers who will have no desire to be judges and little sympathy with the Bench; and this would not only deprive the Bench of its most eminent members, Lord Chief Justices of the Queen's Bench: Lord Denman, Lord Campbell, Sir A. Cockburn, Lord Coleridge. Masters of the Rolls: Lord Langdale, Lord Romilly, Sir G. Jessel. Lord Chief Justices of the Common Pleas : Sir N. Tindal, Lord Truro, Sir J. Jervis, Sir A. Cockburn, Sir W. Erle, Sir W. Bovill, Lord Coleridge. Lord Chief Barons: Lord Abinger, Sir F. Pollock, Sir F. Kelly. but would go far to lower it in the estimation both of the Bar and of the public. I do not think that anything has contributed so much to give the Bench the specific character which distinguishes it, and which I suppose the public would wish to be maintained, as the fact that it is not (as is the case in many other countries) a branch of the executive government, but an independent body forming the head of and closely connected with the most active and prominent of the liberal professions. If it should cease to occupy that position, it would cease to be regarded with anything like the respect or confidence which is accorded to it at present. That confidence rests mainly on the fact that it is composed of men who have won their position by success in a strenuous and protracted competition, in the course of which they have formed connections and associations with the great body of their countrymen in their political, personal, and commercial affairs rather than with government officials. If the Bench is to continue to be filled by men of the stamp of the present judges, it seems questionable whether it is wise to abolish those seats upon it which attract to it the very class of persons whose presence it is most important to secure. I do not, however, consider the retention of the two offices in question as the most important point at issue. The true dignity of a judge's position depends ultimately neither on his rank nor on his salary, but on the importance of the duties which he has to discharge. I object to it principally because I have every reason to think that the abolition of these two offices is merely a step in a process which I regard as extremely mischievous, and as likely to diminish the dignity of the Bench by diminishing the importance of the duties allotted to the judges. Some explanation is necessary to make this plain. The present organisation of the Supreme Court of Judicature, the Court of Appeal, and the High Court, with its five divisions, can be defended by no one. It is a mixture of two different and really discordant systems, not to say three. It is intolerably obscure and intricate, and its constitution has been one main cause of an increase of expense and delay in litigation which are bitterly and justly complained of. My belief is that these results have been caused by an ill-judged attempt to carry what is described as the fusion of law and equity further than it ought to be carried, an attempt founded on a neglect of distinctions which exist in the subject-matter of litigation. I think that the changes now proposed to be made will be found to constitute a long step in this direction, and that they will either produce an aggravation of the bad results already incurred, or destroy trial by jury in civil cases. In order to explain the connection between these For the sake of simplicity I have omitted from this article all reference to the business of the Probate, Admiralty, and Divorce Division. subjects, it is necessary to say something of the fusion of law and equity. Before the Judicature Act the relation between law and equity might have been described in a summary way as follows:: 1. Law was administered by the Courts of Common Law according to one system of procedure, and equity by the Courts of Equity according to another system of procedure. The class of cases disposed of in equity was not altogether distinct from the class of cases disposed of at law, but in the great majority of instances there was a distinction between them, well recognised, though never well described. 2. Equity recognised and enforced a whole system of rights and obligations which were altogether unrecognised by the courts of law, and which they had no means of enforcing if they had recognised them. 3. Equity in certain cases provided remedies for wrongs which the law recognised as such, but for which it provided imperfect remedies. For instance, at law damages might be recovered for a breach of contract, but a decree for specific performance of it was to be had only in equity. In like manner equity in some cases helped people to enforce their legal rights, as, for instance, by compelling a defendant to answer a bill of discovery. 4. On the other hand, equity in particular cases had overruled and practically modified the law by forbidding people to exercise rights given to them by law, except upon conditions which the law did not impose. In the case of a legal mortgage, for instance, the mortgagee's interest at law was absolute as soon as the day fixed for payment had passed without payment, but the mortgagor's right to redeem was recognised and enforced by equity. These were the four great points of difference or contrast between law and equity. The existence of such a contrast had for a great length of time been regarded as an evil, and its removal as an important reform in our legal system, and to effect this reform was one of the leading objects, not only of the Judicature Act, but of some of the provisions of the Common Law Procedure Acts of 1852 and 1854. That the object was excellent cannot be denied, but there are some qualifications upon the remark which I think were not sufficiently observed in passing the Judicature Act, and to which regard should be had in further legislation on the subject. No doubt the distinction between law and equity cannot be justified upon any rational theory of law, though it can be explained historically. But it is equally true that the distinction corresponds, to a very great extent, to differences inherent in the subject-matter of litigation, and that the same may be said of the different modes of procedure appropriate to different classes of cases. The part of the |