cal func

tions.

Union of combination of judicial and political functions in the judicial and politi. office of lord chancellor. But the weightiest authority appears to be in favour of this apparently anomalous union. The late Sir Robert Peel has borne testimony to the great advantage accruing to the cabinet in its having the assistance of the highest equity judge, and to the fact that there is no proof of any injury to the interests of justice having taken place in consequence of the frequent changes of this functionary which are incidental to parliamentary government. He was of

Church

opinion that there was no ground for the apprehension that because this office is held upon a political tenure, unfit or unworthy persons might be selected to fill it. The peculiar advantages of a lord chancellor to a government would be wholly lost, if he were not a man of the highest character and professional reputation. If a ministry were to select an inferior man as lord chancellor, in order to obtain thereby political aid apart from professional service, they would sink immeasurably in public estimation, as well as in the opinion of the bar. It would be manifestly to their interest to choose a man of the highest character and legal ability, whose political views were, at the same time, of the same complexion as their own.h

There is a very considerable amount of patronage annexed to this office.

He is the patron of twelve canonries, and of all the patronage. crown livings (i.e. church benefices) of the value of twenty pounds and under. Out of these church' livings' at the disposal of the crown, 720 (reduced to 650 in 1874) are in the sole and indisputable gift of the lord chancellor, without its being necessary for him to consult the crown in regard thereto; and he is free to

h Sir R. Peel, before Come. on Off. Salaries, Evid. 225, 226, 241, &c. Com. Pap. 1850, v. 15. And see ante, p. 197.

i 2nd Rep. Legal Dpts. Comm". p. 34. Com. Pap. 1874, v. 24; Ib. 1875, p. 227. Com. Pap. 1875. v. 30.

dispose of these according to his notions of what is due to 'religion, friendship, or party.' The remaining 120 benefices in the king's books are in the gift of the prime minister. By a statute passed in 1863, the lord chancellor was empowered to dispose of 327 of the smallest of the church livings in his gift and to apply the proceeds of the sale to the augmentation of their value. A return of sales effected is required to be annually laid before Parliament.*

Under the Supreme Court of Judicature Act, 1873, Part V., the appointment of officers in the Supreme Court and High Court of Justice is principally vested in the lord chancellor. Bearing in mind his position and responsibility as a cabinet minister, the commissioners on legal departments reported their opinion, in 1874, that it would be advantageous to place all superior appointments in the administrative departments of the courts of justice in the hands of the lord chancellor, subject to the approval of the prime minister.1

The weight and influence which is attached to the office of lord chancellor has naturally obtained for this functionary a peculiar degree of independence in the distribution of patronage, even in times when the personal wishes of the sovereign in such matters were better respected than they have been since the system of parliamentary government has been matured. Thus we read that George II., upon his accession to the throne, made a great effort to obtain the control of the ecclesiastical patronage in the hands of the lord chancellor. But Lord King, who then held the great seal, so strenuously resisted this attempt, that his Majesty was obliged to abandon it. And it was said of Lord

m

Legal and Chancellor Eldon that, in the exercise of his immense judicial patronage. patronage, the solicitations of the royal family were

his chief embarrassment.'" An amusing story is told of the Prince Regent forcing his way into Lord Eldon's bedchamber, where he lay ill of the gout, and declaring that he would never leave the room until he had obtained the chancellor's promise to confer a mastership in chancery upon his friend Jekyll. After a long resistance the royal pertinacity was successful, and Eldon gave in.° Upon another occasion Lord Eldon was firmer in defence of his peculiar privileges. A vacancy having occurred among the puisne judges, the prime minister took it upon himself to recommend a person to the king for the office, whereupon Lord Eldon remonstrated with his Majesty, respectfully claimed the right of recommendation, and concluded by tendering his own resignation. This prompt proceeding had the desired effect; the prime minister abandoned his pretensions, and the chancellor's nominee was appointed."

The lord chancellor is generally permitted to have a voice in the nomination of the law officers of the crown; but this is not invariably the case, as the prime minister would naturally expect that his own views should prevail in regard to the filling up of these important political offices. Under any circumstances, however, the lord chancellor and the prime minister would doubtless consult together on this subject."

The lord chancellor is privileged to take the royal pleasure upon the appointment of puisne judges, without previous consultation with any minister, and himself swears in the new judge. He always informs the first lord of the treasury and the home secretary who it is that he has selected, but rather by way of information

n Campbell's Chancellors, v. 7, pp. 653, 665.

• Ib. v. 7, p. 655.

P Ib. p. 654.

See Ib. v. 5, pp. 20, 29, 64, 239;

v. 7, p. 660.

judicial

ments.

and friendly concert, and the first lord would not think Legal and of interfering with the proposed appointment, unless, appointindeed, it were very objectionable. He also appoints the chief judge in the Bankruptcy Court, and regulates the proceedings in that Court. Judges of the County Courts are appointed by the lord chancellor, and are removable by him for inability or misbehaviour in office.' t

S

Under the Merchant Shipping Act, 1876, the lord chancellor is empowered to appoint and remove from office, not more than three Wreck Commissioners, who shall have the same jurisdiction and powers as were conferred by previous Shipping Acts, on two justices,' in the investigation of shipping casualties.

6

Judges in Ireland are appointed on the recommendation of the lord-lieutenant, and Scotch judges by the home secretary, who generally consults with the lord advocate thereupon."

Vice-chancellors, lords justices, the chief justice, and the chief baron of the exchequer are appointed upon the recommendation of the first lord of the treasury, with the concurrence of, after consultation with, the lord chancellor.▾

Puisne judges are generally selected from amongst hard-working chamber counsel, not from amongst very leading advocates, who usually endeavour to obtain seats in the House of Commons, with an eye to the highest honours of their profession." Puisne judges are

Campbell's Chanc. v. 8, pp. 67, 210. Sir R. Peel, in Rep. of Come. on Off. Salaries, Evid. 1337, 2871. Com. Pap. 1850, v. 15. Autobiography of Ld. Brougham, v. 3, p. 345. Ed. Rev. v. 135, p. 547.

$ 32 & 33 Vict. c. 71, secs. 61-79. 9 & 10 Vict. c. 95, secs. 9, 18. Hans. D. v. 209, p. 440; Min. of Evid. Legal Dpts. Comm". p. 439.

seldom promoted; although they undoubtedly include among their number men who are qualified to fill the highest judicial offices, and sometimes, under peculiar circumstances, they are chosen to fill the chief places in the courts to which they severally belong.*

There were formerly a number of sinecure places attached to the courts of law, in the gift of the judges; and though most of them have been abolished, several still remain, which are in the gift of the chiefs of the courts. The puisne judges have no patronage, strictly so called, except the right of appointing their marshals during the time they are on circuit. They have also the appointment of revising barristers, but they are bound to select for this office men who are specially qualified. And should the clerkship of assize fall vacant, the judge presiding at the time has the appoint

ment."

Until the year 1866, the lord chancellor possessed the power, under certain Acts of Parliament, of granting various pensions in the Courts of Chancery, Lunacy, and Bankruptcy, which were paid out of funds under the lord chancellor's control. But by the Act 29 & 30 Vict. c. 68, the practical responsibility and control in regard to the grant of pensions to all persons (save only the judges) who may hold offices connected with the administration of justice in the courts aforesaid, is vested in the treasury, and must be administered in accordance with the provisions of the Superannuation Acts."

In order to insure the due administration of justice throughout the kingdom, much depends upon the efficiency and good conduct of the local magistracy. The right of appointing magistrates in counties, in England,

Rep. on Off. Sal. Evid. 1355, 1360, 1361; and see cases cited, 1850.

y Ib. 1677-1680, 1740. See a debate on the appointment of a certain

clerk of assize, Hans. D. v. 192, pp. 343, 497.

Hans. D. v. 181, p. 428. 3rd Rep. Come. Pub. Acts. Com. Pap. 1871, v. 11, p. 451.