Page images
PDF
EPUB

James, his large practice, his knowledge of law, and his undoubted ability, would have justified his appointment even had he been less successful in Parliament, and, of course, being Solicitor-General, his promotion to be AttorneyGeneral naturally followed. As to Mr. Vernon Harcourt, professional opinion was a little exercised, especially with reference to future judicial appointments, as he was not in much practice at the bar. It has been, however, Mr. Harcourt's happy lot to have had enough of Common Law practice to understand it, and yet to have been spared its drudgery, and to have had ample leisure, while never out of practice, to pursue a more enlarged and prolonged course of legal and juridical studies than most other members of the profession. The truth is, that in our own time there is so much eagerness to get into practice-owing to the unhappy prejudice which, in this country, restricts the prizes of the profession to mere practitioners, that it is hardly possible for one who succeeds in his getting early into much practice to have acquired much store of law, even speaking of mere municipal law, still less to have acquired much acquaintance with the general principles of jurisprudence or with international law, or with civil law, the basis of Equity and of most of our colonial systems of law, acquaintance with which is essential to qualify men to sit in the supreme tribunal of the empire.

There appears to have been no doubt that he would be an able law officer, the doubt was as to his qualification for high judicial office. The purely professional view of the new appointments, inspired chiefly by anticipations of future promotion to the Bench, was conveyed in the Law Times :

“Mr. Vernon Harcourt is not a Solicitor-General of the conventional type. Having been for a number of years a member of the Parliamentary Bar, he relinquished the active practice of his profession to pursue political honours. His success as a debater has been unquestionable, and that he possesses very considerable power is universally admitted. From a political and administrative point of view a man with these qualifications must be a most desirable law officer; but we anticipate that his want of familiarity with the practice of

other member of the bar has devoted an equally long and systematic study to the doctrines of international law, which have lately acquired such novel importance. And, while the Attorney-General will bring to the considerations of such questions an acute intellect, well furnished with legal learning, his colleague will possess the aptitude which arises from familiarity with historical and legal precedents.” Nor do we in the least fear the elevation of either of them to the judicial bench. They are, no doubt, neither of them what may be called "case" lawyers, though it is known that Mr. James has worked hard at the study of the law, and has a very competent knowledge of ordinary laws; while, no one can doubt that his colleague has a more than ordinary knowledge of constitional and international law. But they are both men of very powerful and enlarged minds, and very superior ability, and with the knowledge and capacity they have, and the other great gifts they undoubtedly possess, they would make very able judges, and would co-operate very ably in the great work of the transformation of our judicial system. Therefore, though we hope it may be long ere any vacancy occurs, we confess we are under no apprehensions for the future, as to the perfect competence of either our new law officers to fill such vacancies as may occur.

No doubt Mr. Harcourt might not make a good chief of a Common Law court, as the courts are now constituted. But our contemporaries forget that the courts are to be reconstituted, and that there is to be a Court of Appeal, composed of judges different from those who exercise first instance jurisdiction, and hearing appeals from the colonies. And for that court especially, with reference to colonial appeals, Mr. Harcourt would have the highest qualifications. The wide range of his knowledge of jurisprudence, would eminently fit him for such a tribunal. His fame is widely spread ; it has reached America, and has reached our colonies. Our able contemporary, the Albany Law Journal, lately had a paragraph about him :

“ Mr. Vernon Harcourt, whose name is familiar to our readers in connection with the recent congress of international

jurists, has been appointed Solicitor-General of England. He has long held a high rank at the bar, and has won an honorable parliamentary reputation. Last session he drew from Disraeli the remark that he talked like an AttorneyGeneral. As he is but one step from the Attorney-Generalship, he has a fair prospect of talking not only like an Attorney-General but as the Attorney-General.”

There could be no doubt that such a man, though perhaps, from want of familiarity with practice, unfitted for first jurisdiction, would be a valuable member of the Court of Appeal. He is one of the few of our lawyers who are entitled to be called jurists. One of the advantages of our new judicial system, will be that it will establish a general Court of Appeal, composed of a distinct and higher order of judges, from those engaged in ordinary business. In the constitution of this appellate tribunal, on account of the wide range of its jurisdiction, great variety of qualification will be required, and Mr. Harcourt is oneof those members of the profession who, to the highest abilities, and a .great deal of practical legal knowledge and experience, unites a large acquaintance with jurisprudence as a science.

III.-ILLUSTRATIONS OF OUR JUDICIAL

SYSTEM. PART XII.

By W. F. FINLASON, Editor of the “Common Law Pro

cedure Acts,” of “Nisi Prius and Crown Reports,” and of “Reeve's History of the English Law.”

The CHANCERY System. PLEADING AND PROCEDURE.

17 T has been seen that the Chancery system has practically

proved itself so immeasurably superior to Common Law in its practical results that there must be some element of superiority in the Chancery system of procedure; nor is it difficult to discover what that is. It is simply this, that at

* These articles, which are now pearly completed, are introductory to another series, which will shortly be commenced on the operation of the New Judicaturo Act, and the New Judicial System.

the ordinary tribunals will be found to be a drawback of no small magnitude. A law officer must be something more than a good lawyer, perhaps more of a Parliamentary debater and a man of letters than a lawyer. For this reason we incline to think that Mr. Harcourt will make just such a law officer as we want at present. But it is perfectly clear that he would make an inefficient Chief Justice of any of our common law courts ; and if, by the further elevation of Mr. James, Mr. Harcourt became Attorney-General, it is certainly desirable that the next vacancy in the Chief Justiceships should not be regarded as his as a matter of right.”

And the Law Journal had observations of a similar tendency. Our contemporary is rather in error as to Mr. Harcourt's professional antecedents; he has never relinquished the active practice of his profession. For nearly twenty years' he has pursued it; he commenced in the ordinary courts of law, in the time of Chief Justice Jervis; the writer well remembers him arguing cases in the courts with great ability, recollects that eminent judge highly complimenting him for his able arguments, and heard at that time that the late Mr. Justice Willes spoke very highly of his legal capacity. For some years Mr. Harcourt pursued the practice of the Common law, he then went into the higher and richer walk of parliamentary practice, and achieved a high position. Becoming a member of the House, he had, of course, to relinquish this lucrative practice. But he had never relinquished the practice of the Common Law bar; he then returned to it, and has ever since continued it. His practice was not large, but it was larger than that of Sir R. Collier after he had ceased to go circuit, and was large enough to bring him constantly, from time to time, into the courts of law both at Westminster and on Circuit, and always in cases of some magnitude. The mind of Mr. Harcourt is not of a type to trouble itself with petty litigation, and no doubt his clients understood it. He generally had some cases at every assize on his circuit, and they were always good cases. So in the courts at Westminster he has been in some great cases in the Queen's Bench, the Foreign

Enlistment case, for instance, and the great Epping Forest volitit

case, in which he was retained, along with a host of the most eminent men at the bar. His practice has been small compared with that of Mr. James, but his abilities are great, and his practice has been quite sufficient to teach him the business of his profession. Even if Mr. Harcourt, however, had had less forensic experience than he has, it would not in the least detract from his qualifications for high judicial rank. As an able daily journal lately observed on the occasion :

“The qualities which constitute an eminent advocate and a successful Judge are of so different an order, that it is impossible to predict beforehand, with absolute certainty, of any lawyer however distinguished, that he will command on the Bench the same weight as he carried at the Bar.” And it is beyond a doubt that our best judges have been men who have not been first-rate advocates, while our most brilliant advocates have not made the best of judges. The truth is that some of the functions required for the two offices are not only different but distinct, and entirely opposite. And the qualities required for the Bench, especially for its chief seats, are rather learning, intellect, and judgment, than mere forensic skill (often, unhappily, tending to craft), or great practice in the arts of advocacy. But not always great advocates in large practice have much legal knowledge. The remark was made, a few years ago, by the Lord Chancellor, of many of them ; and it had been made two centuries ago by a predecessor of his, the Lord Keeper North, who also suggested the true reason. On the whole, therefore, we think that the Saturday Review was right when it thus expressed the general opinian of the profession and the public :

“With the details of Common Law practice Mr. Harcourt is less familiar than some of hiscompetitors at the bar, because he has earned his professional rank at the Parliamentary bar." This, to some extent, is an error, as already stated. It was by no means entirely so earned.

“But when his official duties require his appearance in Westminster Hall, there is little doubt that he will prove himself a sound lawyer, as well as a brilliant advocate. No

« PreviousContinue »