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Irish Judicial Bench—Appointment Of The Judges

Volume 220: debated on Thursday 25 June 1874

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Motion For An Address

rose, according to Notice, to move—

"That an humble Address he presented to Her Majesty, representing that in the opinion of this House it would he for the advantage of the administration of justice if the Irish Judges were appointed to the same extent as they are in England, upon the recommendation of the Lord Chancellor and without reference to official or political claims."
The hon. and learned Gentleman said, he felt that he could not, with few exceptions, bring forward any question of greater importance to Ireland than that of the appointment of its Judges. He had to complain that in that matter a diametrically opposite rule to that followed in England was adopted in regard to Ireland. In England the Attorney General had a right, established by long usage, to succeed to a vacancy in the Court of Common Pleas. That was as old as the days of Lord Coke. But the Attorney General had no claim by usage or other right to any other seat on the Bench; and the Lord Chancellor, on his own responsibility, recommended a new Judge to the Sovereign. The rule which obtained in Ireland, however, was wholly different, and it was now perfectly well established that the Attorney General of the day had a right to fill any vacancy on the Irish Bench, with, perhaps, such an exception as that of the Lord Chief Justiceship. Now, in condemning that system, he should carefully avoid canvassing the merits of any individual appointment, while he wished the House to understand that the present was by no moans a party Motion. Out of the 12 Common Law Judges of Ireland 10 had filled the office of Attorney General; and since 1835 there had been no less than 28 successive occupants of the office of Attorney General, although between the Union and the year 1835 there were only six. At that time, however, it was not the habit of an Attorney General to accept a Puisne Judgeship. One great evil of the present system was, he might add, in his opinion, that it tended to lower the high office of Attorney General; and another, that no man could hope to be placed on the Bench in Ireland who was not more or less of a political partizan. The Attorney General for that country occupied a position quite different from the Attorney General in England. The former was much more of a political officer, and was in the habit of consulting every day with that anomalous official the Law Advisor to the Castle, not only on matters of law, but on matters of State, while he discharged, moreover, the duties of public prosecutor. Another objectionable thing was to have the Bench composed of persons who had all been public prosecutors, and who, therefore, were of necessity partizans, and must have rather a bearing in favour of the prosecutions in which they had taken so practical a part. It was the common practice in Ireland for the Judges and counsel to attend the Lord Lieutenant's Levees, the consequence of which very often was to postpone the decision of cases, to the injury and inconvenience of suitors, to another Term; and that to enable them to take part in a mockery of a Court that did no credit to Royalty or Vice Royalty. To show the right of the Attorney General for Ireland to fill a vacancy on the Bench in that country, he might mention the case of a very eminent lawyer, Mr. Blackburn, who, when a vacancy occurred in 1834, during the Premiership of Lord Melbourne, consented to waive his claim only at the request of the Sovereign, King "William IV. The hon. and learned Gentleman having quoted passages from Campbell's Lives of the Lord Chief Justices, Lord Brougham's speech in 1828 on Law Reform, and The Law Magazine for 1867, enforcing the importance of avoiding all political considerations in the appointment of Judges, and of withholding all political duties from them, said he would make no reference to individual cases, but he must testify that during the 30 years he had boon a witness of the working of the present system in Ireland, it had deteriorated both the Bench and the Bar. Men like Jonathan Henn and Serjeant Warren, who would have been among the brightest ornaments of the Bench, had passed away to their graves without having had an opportunity of shedding lustre upon the judicial office. He felt compelled to say that he very seldom saw the best possible appointments made. He did not say that he had seen bad appointments—that was a different question; but he would be guilty of unworthy concealment if he did not declare that within those 30 years he had seen appointments made which would never have been conferred if a due regard for the administration of justice had been an element in the elevation to the Bench. The passage he had read from The Law Magazine led him to speak of the necessity of keeping Judges strictly aloof from all places or occupations through which they might be brought under the influence of the passions, prejudices, and intrigues which, more or less, prevailed in political circles. He was sorry to say that this principle was not regarded in Ireland. The Judges were all Benchers of the only Inn of Court which existed in that country. Moreover, there were a number of public Boards to which it was usual to appoint them, and this he thought exceedingly objectionable. He disapproved altogether of Judges being singled out in this way for the favours of the Crown. The system did not exist in England, and ought not to be permitted in Ireland. One Board in particular called for notice—he meant the National Board of Education, to which five Judges belonged. He need not describe how in connection with such a body, differences of opinion became disputes and disputes degenerated into altercation. It sometimes happened, even, that the Judges discussed as Educational Commissioners the effect which cases pending in their own Courts would have upon the Board. In one case a Judge had been appointed under the authority of a statute to an office of profit and high salary, held during the pleasure of the Crown. Was this a satisfactory state of things? Was it right that no man should obtain a place upon the Judicial Bench unless he had been engaged in the arena of politics? A system of this kind shook the confidence of the people in the administration of justice. It had a bad effect on the public mind to see the Judges ostentatiously attending Levees and disputing on public Boards. Moreover, it had an injurious effect upon the Judges themselves. A countryman of his had said he looked upon the administrators of the law as a second priesthood; and it was true with regard, not only to clergymen, but also to Judges that things might be unseemly in them which were right mothers. All political parties had followed the system he was now condemning. At the present moment, there was only one Judge upon the Bench in Ireland who had been placed there without ever having taken part in political contests. Only one other Judge—namely, the Lord Chief Baron—had never been in Parliament; and while there was no man who would more honourably and uprightly discharge the duties of his office, it must yet be remembered that it was not his fault that he had not been a Member of that House. He did not mean to say that the Irish Judges failed to perform their duties faithfully and honestly. At the same time, when Judges were found ranged on a purely legal question according to the side to which they belonged in politics, the sight was not one likely to increase the confidence of the Irish people in the administration of justice. He could not see why there should be one rule in England and another in Ireland. The system which had worked well here ought to work well there. It was sometimes said that as the Attorney General for Ireland was obliged, in coming over here, to give up his professional business, it was necessary when he ceased to hold the office to provide for him in some way. Supposing it to be true that he would find it difficult to resume his practice, this would be an argument, not for making him a Judge, but for attaching a pension to the office of Attorney General. If the right system was adopted, he had no doubt it would be as easy in Ireland as in England to find a Lord Chancellor who would independently and without political considerations select men for judicial appointments. For those reasons he begged to move the Resolution he had placed on the Paper.

Amendment proposed,

To leave out from the word "That" to the end of the Question, in order to add the words "an humble Address he presented to Her Majesty, representing that, in the opinion of this House, it would he for the advantage of the administration of justice if the Irish Judges were appointed, to the same extent as they are in England, upon the recommendation of the Lord Chancellor, and without reference to official or political claims,"—(Mr. Butt,)

—instead thereof.

Question proposed, "That the words proposed to be left out stand part of the Question."

was of opinion that, whatever might have been said of the practice of former times, the hon. and learned Member for Limerick had altogether failed to show that the present system did not place on the Bench the most able, the most independent, and the most learned Members of the Irish Bar. Nearly every one of the Judges upon the Irish Bench had been ornaments, not only of the Irish Bar, but of that House. The Judges of the Court of Queen's Bench were Chief Justice Whiteside and Justices O'Brien, Fitzgerald, and Barry; of the Court of Common Pleas, Chief Justice Monaghan and Justices Keogh, Morris, and Lawson; of the Exchequer, Chief Baron Pallas, and Baron Fitzgerald (neither of whom had been Members of that House), and Barons Dease and Dowse, who all, with those two exceptions, had been ornaments both to the Senate and the Bar. He defied the hon. and learned Member for Limerick to name any members of the Irish Bar, not labouring under temporary disqualification, who were entitled to be placed on the Bench, but who had been passed over improperly—with the exception, perhaps, of the hon. and learned Gentleman himself, whoso standing at the Irish Bar would undoubtedly have entitled him to the highest position on the Bench, had it not been for the fault of his friends. The Law Officers of the Crown for England occupied an entirely different position from that held by those for Ireland, because whereas the former, when residing in London, could retain their practice, the latter entirely forfeited theirs; and therefore, unless the Irish Law Officers obtained appointments on the Bench, no barrister of any eminence would accept the office of either Attorney or Solicitor General for Ireland. He did not hesitate to assert, in contradiction to any imputations which had been made upon the present system, that the Attorney and Solicitor General for Ireland were perfectly equal to those in England in judicial knowledge and in ability, and that in brilliancy, wit, and humour they were at least equal to the Law Officers of Scotland. In his opinion, the hon. and learned Member had failed to establish his case, and it would be a great misfortune if the Lord Chancellor, instead of the Lord Lieutenant, had the power of conferring judicial appointments.

said, that his experience at the Irish Bar had led him to a different conclusion from that at which the hon. and learned Member for Limerick (Mr. Butt) had arrived. He was far from saying that the system of selecting for the position of Judges Gentlemen of the Irish. Bar connected with politics was a desirable one; but he did not think that the plan proposed by the hon. and learned Member would be an improvement upon it. In saying this he was far from intending to reflect upon the right hon. and learned Gentleman who was looked upon as the future Lord Chancellor of Ireland, and whose integrity and ability led the Irish Bar to regard him with the utmost confidence. The hon. and learned Gentleman, in adverting to the various posts held by the Irish Judges, in addition to their judicial offices, had forgotten to state that they discharged the duties attached to those posts gratuitously; and as to their being benchers of the only Inn of Court in Ireland, and the influence they possessed as such, they were greatly outnumbered by the benchers who were practising Members of the Bar, and from their numbers and position quite competent to protect the privileges of the Bar. It should be remembered that in England the Equity Judges remained benchers at their Inns. The Common Law Judges vacated their offices of benchers to become members of Serjeants' Inn. The complaint that the independence of the Irish Judges would be influenced by attending the Lord Lieutenant's Levees was unfounded, and was so unjustifiable as to suggest that the Lord Chancellor and the Chief Justices of England, who attended the Levees in England, were influenced in their judicial conduct by such attendance. Were the changes which the hon. and learned Gentleman proposed adopted, he was afraid that, although the political element might not be so prominent in the appointments made by the Lord Chancellor, the family element would be even more so. For the last 30 years the county chairmanship, the judicial office in the selection for which the Lord Chancellor had most power, had almost invariably been filled by sons of Lord Chancellors, if qualified by a certain number of years standing, and, failing them, by sons-in-law. A Lord Chancellor who had marriageable daughters was almost sure to dispose of them to some aspirant to judicial honours. He was not quite sure that if Irish Chancellors were entrusted with the appointment of the Judges, men of high standing, great learning and experience would not be passed over in favour of sons and sons-in-law. Under these circumstances, he did not see what advantage would result from adopting the proposal of the hon. and learned Gentleman.

remarked that in viewing proposals of this character it was important to see how they would work practically if adopted. The real question before the House was whether they were willing to place the power of appointing to judicial offices in the hands of the Lord Chancellor, instead of in those of the Government of the day. In considering this, it must be remembered that the Lord Chancellor was a political officer, connected with the Government of the day, that he was appointed with a view to politics, that he changed with the Government, and with them ceased to exist in his official capacity. He was not impressed by the example of Lord Eldon, for he remembered that Sir Samuel Romilly, in his Journal, condemned his appointments as dictated by political partizanship. No doubt, in moderation the spirit of the Resolution should be carried out. For example, no man should be appointed to the Judgeship of the Landed Estates Court who had not special and peculiar qualifications for the office; and with regard to the additional Lord Justice of Appeal he boldly said that a Minister who in appointing to that office made political considerations paramount would totally fail in his duty. They could only trust to the growth of public opinion to check and control improper appointments. The Lord Chancellor might be a person influenced by family considerations, and he objected to such a proposal as that of the hon. and learned Member to make the whole Bar of Ireland dependent, as it were, upon his will and fancy. He was better as an adviser than as an arbitrary selector. It was a mistake to suppose that the appointment of Judges rested with the Lord Lieutenant. All he did was to recommend. The appointment was with the Cabinet, and he had known an instance in which an appointment was wished for in Ireland but was not given by them. He could not support the Motion, although he did not mean to say that much might not be said in reference to the degree in which politics should influence these appointments.

said, if one thing more than another had been a cause of dissatisfaction to the people of Ireland with reference to the way in which the affairs of Ireland were administered it was the way in which these offices were filled up. The invariable rule was that only those who were partizans of the Government for the time being were appointed to these offices. He thought the sooner that system of political corruption was abolished the better it would be for Ireland.

said, the question under discussion was only a fragment of a very large subject: Of one thing he was certain—the whole of the judicial appointments in Ireland, from the highest to the lowest, had been, and were, the cause of the liveliest dissatisfaction. "When a question arose in Ireland as to the appointment of a barrister to the Judicial Bench, the Bar of Ireland was not regarded as the Bar of England was—namely, as defenders of the rights of the people, but was regarded as the agent of a particular Government; and men who entertained political sentiments quite opposed to those which they had expressed on the hustings when they were aspirants for Parliamentary honours were frequently appointed members of the Judicial Bench. As to such men it was impossible for him to have any confidence that they would administer the law as it ought to be administered. There was one judicial office at the disposal of the Government for every three practising barristers. He believed that there was no country in the world but Ireland, or perhaps India, in which appointments to the paid magisterial bench were made without any legal qualification in the men appointed. Until the Judges in Ireland were greatly reduced and the Chairmen of Quarter Sessions had duties cast upon them which would fully occupy their time, the Bar of Ireland would never be anything else than a political machine in the hands of the Government of the day. While the present system of judicial appointments lasted, the people of Ireland could not have confidence in the administration of justice in that country. The whole system required amendment. It would, he believed, be discussed when the Judicature Bill came before the House, on which occasion an hon. Member would lay before the House facts which would astonish the country.

said, that after what had fallen from the hon. Member for Galway (Mr. Mitchell Henry), it was impossible for him to remain silent. He was a member of the Bar of Ireland, although for some years he had ceased to practise, he was well acquainted with nearly every member of the Bar, and with every member of the Irish Bench, and he repudiated in the strongest possible manner the assertions which the hon. Member had made. They were wholly without foundation, and could never be justified in any individual case. The hon. Member represented the Bar of Ireland as being corrupt from the highest to the lowest of its members.

said, the hon. Gentleman attributed to him a statement he had never made. What he had said was that the Irish Bar were instruments in the hands of the Government.

said, he would leave it to the House to say whether he had not fairly represented the allegations of the hon. Member. It was really too bad that on every possible occasion a certain set of hon. Members opposite should drag the Irish Judges and the members of the Irish Bar before the House and represent them as being discredited and discreditable. What nonsense it was to suggest that Irish barristers were to be unlike all other men—to take no side in politics whatever. Was that the case in England? There were many members of the English Bar in that House justly proud of their profession, as he was proud of his, yet was their honour ever impeached? If any of those hon. Members happened to be raised to the Bench, could it be said of them that they were unworthy to fill that high position because they had sat in that House and had supported one or other of the two great political parties? Would such a charge be made against the present Chief Justice of the Common Pleas of England, the Chief Justice of the Queen's Bench, and the Chief Baron of the Exchequer, who had been Members of the House of Commons? Among the Judges of England were some of the most distinguished, most admired, and most honoured Members who had ever sat there. Well, then, what foundation had been laid for the charges so recklessly made against the Irish Judges? On one or two occasions hon. Members opposite had mentioned the names of certain Judges to the House against whom they had preferred charges, but what had been the result? Their insinuations were repudiated, and their accusations were rejected by overwhelming majorities. It was true that the speeches in which those accusations were made had been reported in Irish newspapers, while those in reply had been omitted; but the Irish people were not so slow as to misunderstand the figures of the division. It was little to the credit of the patriotism of hon. Members opposite that they made such charges as these, and if they over intended to lift to political dignity the movement which they might, by a stretch of language, call national, they would have to set about it in some other way than this. It was not by such insinuations or reckless charges that the English people were to be persuaded that there was something deliberately corrupt in the Irish Bar, or that a man could not there be appointed to a Judgeship who had served for a time in the House of Commons without ensuring an unjust, unreliable, and impure administration of justice. For his own part, he could only say that among the people of Ireland he had lived all his life, and he had never heard those charges brought against the Judges, and that, so far as he had had an opportunity of forming an opinion, those charges were utterly without foundation.

was astonished and grieved to hear the observations which had fallen from his hon. Friend the Member for Galway (Mr. Mitchell Henry), but he did think and sincerely hoped that in his speech he had not expressed his own sentiments. His hon. Friend was very ignorant, indeed, of the position of the Bar of Ireland, and he could not be acquainted with the public life of many of its members, otherwise he would not have used the ill-considered and intemperate language he did. His hon. Friend had, he thought, adopted the half-crazy utterances lately made by an eminent member of the University of Dublin. It was not for him to enter into any defence of the Bar of Ireland. Many of its members had sat in that House, and had won the respect and admiration of their Colleagues there. For his part, he had never before heard such charges and insinuations as had been made and thrown out that night, and he could not but think it an ill-considered thing on the part of his hon. Friend the Member for Galway to have stated not his own views and opinions, but those he had found in public prints in Dublin. He (Mr. Meldon) admitted that the judicial system in Ireland was in a very unsatisfactory state, but he maintained that that arose, not in consequence of the political appointments of the Judges, but from the appointment of Crown officials to all judicial posts as a matter of course and right. It was a system that was not calculated to secure the confidence of the people of Ireland. Up to the present time the appointments of the Judges of the Court of Equity had been unexceptionable. It was in the case of the Common Law Judges that he found grounds for complaint, and he maintained that it was not a satisfactory system which allowed Crown officials to step at once from the position of prosecutors to that of Judges. The people could not understand how an officer of the Crown, engaged perhaps for years directing and conducting prosecutions, could suddenly be transformed into an impartial Judge, whoso highest duty was to stand fearlessly between the subject and the Crown. He could not agree at all with the objections which had been taken to the system of allowing the Lord Chancellor to make the appointments—a system which he believed would be more satisfactory than that which at present existed. Under the present system the Lord Chancellor was consulted, and his advice usually followed, the result of which was that virtually he appointed, though quite irresponsible. If he was made responsible, as in England, the objections now existing would infallibly be removed.

regretted exceedingly that this subject had been brought before the House. As a professional man for many years, he entirely concurred with the remarks of the hon. Member for Dublin University (Mr. Plunket), believing as he did that the Bar of Ireland was as honourable and independent as the Bar of England, or of any other country.

believed that anyone who arrived at the Bench in Ireland owed his elevation to his political opinions, and to being a partizan of the Government of the day. That feeling regulated the conduct of almost every young man who went to the Bar, and thus it was that when they became qualified to fill an office, such as the chairmanship of a county, or anything else, they were incessant applicants to the Government. And so the practice ran through every grade. The Lord Lieutenant of Ireland, the magistrates, the high sheriffs, the Crown prosecutors, and every public officer in any department were appointed for their political opinions or through political motives. What he complained of was the system of government in Ireland, under which the appointment to every office of honour or emolument from the Lord Lieutenant to the clerk of potty sessions, was made the reward of political partizanship. An illustration of this occurred in his own City (Cork), where there was a place called a lunatic asylum—which cost £110,000 to build it, and £15,000 a-year to maintain it, hardly a rate levied exclusively on the occupying tenants, and yet the ratepayers who furnished the means had no representation on the managing board, which was nominated by the "Castle" of Dublin. The last two vacancies had been filled by the two defeated Conservative candidates at the last Election. The gentlemen in question were well qualified to fill the positions to which they had been appointed; but the fact remained that they were nominated by the Conservative Government in reward for political services for having endeavoured to secure two seats in the House of Commons for the Conservative party.

Question put.

The House divided:—Ayes 271; Noes 62: Majority 209.