THE LAW REVIEW. ART. I.-MINISTER OF JUSTICE. AMONG the institutions in which our neighbours of France have a manifest advantage over us, is the great office of superintending the administration of the law, whether as regards the proceedings of Courts, the appointment of legal functionaries, or the improvement of the judicial system and the jurisprudence generally of the State. This, the most important by far of all the branches of government, forms in France one Great Department, and the Minister who presides over it, being exempted himself from judicial functions, is enabled to devote his whole time and his undivided attention to the eminent duties of his office. But it is not only by preventing interruption to these important labours that the severance of the judicial from the ministerial office is of singular advantage. The duties of the Judge are as much better discharged as those of the Minister, in consequence of this division. Nothing can be more clear than the necessity of the judicial and the executive power in the State being kept apart. This separation is required with a view as much to the purity of the Bench as to the safety of the constitution. Invest a judge with political attributes; how is it possible that he can distribute justice with strict impartiality? Nor is it possible that he can find sufficient time for discharging the duties of the Bench. Neither can he possess his spirit in undisturbed calm, ruffled by no breath of faction, distracted by no anxiety of State concerns; and yet the judicial office demands, above all, the unbroken subsistence of that tranquil condition. Then the rights of his fellow-citizens are to be determined by his interposition, and the questions that arise between the subject and the Government must be by him dealt with and decided. How can a member of that Government, its organ in all legal matters, be safely entrusted with the determination of those very controversies in which that Government is one of the conflicting parties? If the sovereign and his political representative are excluded from administering justice to their subjects in all European, almost in all civilised countries, it seems a strange anomaly that in any of them his ministers, his political delegates, the depositaries of his whole authority civil and military, should be found clothed with those judicial attributes, of which he himself has long been despoiled. Every reason that makes it improper, and in the highest degree improper, for the prince to sit in judgment upon the lives and fortunes of his subjects, is equally powerful to prohibit the exercise of the same functions by his servants. "There can be no liberty (says Montesquieu, liv. xi. ch. vi.) unless the judicial power is separated from the legislative and the executive. If it be united with the executive, the judge has the power of an oppressor." In the chapter (liv. vi. ch. vi.) entitled "That in a Ministry the Ministers ought not to be Judges," he says, "We see states in which with numberless judges yet the ministers, who could believe it! must also judge.-"Nothing (says Blackstone, book i. ch. vii.) is more to be avoided in a free constitution, than uniting the provinces of a judge and a minister of state." But the learned commentator, the unbounded panegyrist of our constitution, passes wholly over the glaring exceptions to this rule which our system offers. If it be wholly improper that any minister of the Crown should exercise judicial functions, it can make no difference in the case that the minister in question is the one charged with superintending the department of public justice. Whether he is to name the magistrates, or the tax-gatherers, or the commanders by sea and land; whether he is to superintend as representing the sovereign, the jurisprudence, or the financial system, or the military service; he is equally a political functionary, equally a delegate of the sovereign authority, equally entrusted with the exercise of the executive power. Indeed, reasons might be assigned why the entrusting one judge with the superintendence of all his brethren, with filling up vacancies in their body, with providing remedies for the defects in the judicial system, is more inconsistent with the public weal than the delegation of the same functions to one not sitting upon the bench. These principles seem sufficiently obvious, and to rest upon foundations undoubtedly solid. But if there be any State in which we should naturally expect to find them adopted to their full extent, and called in to regulate the whole system of the law, it would surely be England, in whose constitution the utmost jealousy is shown of every political influence, every interference of the Crown with the entire independence of the Bench. Our judges for a century and a half have held or been supposed to hold their places for life. It is above eighty years since the last vestige has been removed of their dependence upon any event but the course of nature, the demise of the Crown no longer being suffered to affect their tenure of office. The decent customs of our Court will not permit them to attend the levees of the prince. They are excluded from all representative seats in the legislature. They are regarded as men set apart for the exercise of an office removed far above all the contentions that agitate restless mortals. They are, as it were, consecrated, and set apart as a peculiar portion of the people, and removed from all secular concerns. Yet in England it does so happen, that the judge of highest rank and most eminent jurisdiction is in practice always one of the most important and active ministers of the Crown, holding his judicial office as well as his political at the mere will and pleasure of the sovereign. It is of course to the Lord Chancellor that we allude. There is a sin against strict principle in one branch of the legislature exercising judicial functions as a court of appeal in the last resort; but custom has greatly lessened the evils that might well be expected to flow from this occurrence, by ordaining that only the law lords should take any part in questions of a judicial kind; lessened, we say, not removed, and cases are not wanting, even very recent times, to prove how greatly a remedy more in effectual than this custom is wanted, to keep the stream of justice entirely pure, or at least to preserve it from all suspicion of impurity, and give to its virtues the full confidence of the community. There may seem to be another exception in the judicial powers of the Privy Council, and in the tenure by which Justices of Peace hold their important office. But in practice no mischief whatever arises from either of these sources, because no privy councillor, no magistrate, is ever removed without a conviction which renders him incapable of continuing to act. Substantially they hold their office, like all other Common Law judges, for life or good behaviour. It is far otherwise with the chief judge in Equity, who, besides, has a most prominent place among the judges of appeal in Common Law questions. The Chancellor is, both in form and in substance, a political personage-an active minister of the Crown-one who partakes in all the party disputes of the day, as well as in all the executive operations of the sovereign's councils. He is also the Minister of Justice. His duty it is to select the judges on each vacancy in the Bench, to superintend the inferior magistrates, to appoint them at his pleasure, and to remove them if he thinks best; but the rule in this respect differing in England and in Ireland, precludes him from removing until there be a conviction in the one country, leaving him a much larger latitude in the other. It is likewise a part of his duty to take especial care of whatever may seem required for removing defects in the judicial system. The first evil consequence arising from this union of the executive and judicial office regards the risk of partiality. The kind of questions that come before the Chancellor are not so much of a political cast as those with which the judges of the Common Law have to deal; yet it may be doubted if questions approaching to political do not come before him more frequently than before them. Cases of treason, libel, sedition, are more political than any that can occupy an Equity judge; but these are of very rare occurrence in modern times. The cases which touch, though less closely, upon party ground in Courts of Equity, are very far from being of unusual occurrence. The cases of lunatics, where The possessions are large, and influence in proportion great, and the decision of who shall hold the property and exercise the influence, is one of every day's occurrence. The guardianship of infants and the marriage of wards give rise to similar exercise of authority. The staying proceedings in cases involving political considerations is far from unusual. determining of nice but very important questions, deeply interesting the Crown, and even personally affecting the reigning monarch, becomes frequently the duty of his highest minister, holding at his pleasure by far the most lucrative and most important office in his service. In most of these cases, too, the authority vested in this high functionary is purely discretionary, and guided by no fixed rules; and in every one of them he decides alone, without any control of a jury, or any concurring voice of brother. judges. Nay, as presiding in the House of Lords, he decides one on appeal from the Common Law Courts after all the judges and jurors have pronounced their opinion, and he may well happen to sit alone as a law lord in that highest tribunal. It is quite true that the publicity of all judicial proceedings has for the most part prevented gross injustice from being done through the bias thus undoubtedly acting on the Chancellor's mind. But it is well known that one of Lord Eldon's worst decisions the one in which he has ever since been almost universally held to be in the wrong, related to a case of the late Queen Caroline when Princess of Wales, and was of a nature as highly gratifying to the Prince Regent as it was distasteful and even prejudicial to his royal consort. It is equally certain that one of his successors, when called upon to decide whether the King should receive a very large sum of money, or his tenants of the duchy of Cornwall should retain it, felt so much the impropriety of sitting in judgment on such questions, removable as he was at the pleasure of one of the parties, that he proposed to call in the assistance of unremovable judges, and was only prevented by the united representations of all the parties. In the House of Lords, too, both that Chancellor, and those who preceded, and those who followed him, have more than once been called upon to decide delicate questions of purely political and party complexion, and who shall pretend to say, that abuse having |