Action of Parliament for removal

of a judge.

tifiable.

attach to the judges for acts done judicially, in respect of all wrong. ful acts done in their private capacity they are amenable to the laws.i

By these authorities it is evident the crown is duly empowered to institute legal proceedings against the grantee of a judicial or other office held during 'good behaviour' for the forfeiture of such office on proof of 'misbehaviour' therein.

But, in addition to these methods of procedure, the constitution has appropriately conferred upon the two Houses of Parliament-in the exercise of that superintendence over the proceedings of the courts of justice which is one of their most important functions-a right to appeal to the crown for the removal of a judge who has, in their opinion, proved himself unfit for the proper exercise of his judicial office. This power is not, in a strict sense, judicial; it may be invoked upon occasions when the misbehaviour complained of would not constitute a legal breach of the conditions on which the office is held. The liability to this kind of removal is, in fact, a qualification of, or exception from, the words creating a tenure during good behaviour, and not an incident or legal consequence thereof.

In entering upon an investigation of this kind, Parliament is limited by no restraints, except such as When jus- may be self-imposed. Nevertheless, since statutory powers have been conferred upon Parliament which define and regulate the proceedings against offending judges, the importance to the interests of the commonwealth, of preserving the independence of the judges, should forbid either House from entertaining an application against a judge unless such grave misconduct were imputed to him as would warrant, or rather compel, the concurrence of both Houses in an address to

See Broom, Const. Law, pp. 765, 791.

Anything

the crown for his removal from the bench.
short of this might properly be left to public opinion,
which holds a salutary check over judicial conduct, and
over the conduct of public functionaries of all kinds,
which it might not be convenient to make the subject
of parliamentary enquiry.'*

Bearing this in mind, the House of Commons, to whom it peculiarly belongs to take the initiative in such matters, should remember the words once addressed to them by Edmund Burke: We may, when we see cause of complaint, administer a remedy; it is in our choice by an address to remove an improper judge; by impeachment' before the peers to pursue to destruction a corrupt judge; or, by Bill, to assert, to explain, to enforce, or to reform the law, just as the occasion and necessity of the case shall guide us. We stand in a situation very honourable to ourselves and very useful to our country, if we do not abuse or abandon the trust that is placed in us.' m

Fox.

The first case wherein the interposition of Parliament Judge was invoked for the removal of a judge, under the provisions of the Act of Settlement, occurred in 1805, in reference to Mr. Justice Fox, of the Irish bench. After a protracted investigation, however, the prosecution was abandoned, on the ground that the proceeding, which had originated in the House of Lords, should have been commenced in the House of Commons. For according to ancient constitutional principle, the Lords. are judges, the Commons are the grand inquest of the nation." But the case is deserving of a careful study,

Case of

Judge
Fox.

as, notwithstanding the omission in the statutes of any directions as to the way in which such investigations should be conducted-an omission which led at the outset to considerable difficulty in arranging the course of procedure-there was, and ever has been, a manifest determination, on the part of the House of Lords, to be governed upon such occasions by the established principles of justice in the trial of criminal charges.

Mr. Fox was a judge of the Court of Common Pleas in Ireland. On May 31, 1804, a petition was presented to the House of Lords, complaining of his judicial conduct upon various occasions; which was followed by a petition from the judge himself, that he might be duly informed of the charges preferred against him, and be permitted to answer by himself and counsel in his own defence. Whereupon a copy of the petition of complaint was ordered to be communicated to the judge. On July 5, articles of complaint, founded in part upon the same petition, were presented to the House of Lords by a peer, ordered to lie on the table, and a copy thereof to be furnished to Mr. Justice Fox.P But the articles were not proceeded upon, as soon afterwards Parliament was prorogued.

Early in the ensuing Session, on January 21, 1805, three petitions were presented against Judge Fox, together with new and amended articles of complaint, which the House resolved to consider in a committee of the whole. Upon the order being read for the House to resolve itself into this committee, it was agreed to appoint a select committee to consider of the matter alleged against the judge, and of the evidence which might be brought in support of the same." But neither the judge, nor any person on his behalf, was allowed to be present at the meetings of this committee, the proceedings of which were, after a time, ordered to be discontinued by the House, and the matters of complaint against Mr. Justice Fox to be examined into in a committee of the whole House, 'with a view to consider of an address to the king to remove' the said judge, 'if a sufficient ground for such address shall be substantiated by proof before this House.' Accordingly, on May 22, the House agreed to resolve

June 7, upon petition of Judge Fox, that he might have access to the orders, proceedings, and evidence taken by the select committee, it was ordered to be revived, and to report forthwith the evidence to the House. Ib. p. 246. The report was made on June 10, and was directed to be printed for the use of members only.

t Lords' Jls. v. 45, p. 181. On Ib. pp. 253-295.

itself into a committee of the whole, to consider of a motion for an address to the king, representing various instances wherein Mr. Justice Fox had misconducted himself in the exercise of his judicial functions, and for these reasons praying that his majesty will be graciously pleased to remove the said Luke Fox from his said office,' and to enquire into the facts alleged in the said motion. The petitions of complaint were referred to this committee, and leave given to the petitioners to be heard by counsel in support of the same. Leave was also given to Mr. Fox to be present, and to be heard by himself or counsel, against the motion; copies of which, and of the petitions, were ordered to be communicated to him." After some deliberation as to the place in which Mr. Fox should be heard, it was ordered that he should be accommodated with a chair below the bar. The enquiry at the bar was then commenced, and continued from time to time until the close of the session, when the case on behalf of the petitioners was still unfinished. A Bill was accordingly introduced, which received the royal assent, to continue the proceedings in the House of Lords upon this matter, notwithstanding any prorogation or dissolution of Parliament.w

On February 24, 1806, a day was appointed by the House of Lords for resuming the enquiry into the case of Mr. Justice Fox; but the order of the day was read and postponed again and again, without anything being done. At length, on June 3, Judge Fox petitioned the House, complaining of being subjected to a protracted and costly investigation, extending over three sessions of Parliament, and reflecting upon his good name and usefulness. This petition was taken into consideration on June 19, when Lord Grenville (the prime minister) moved that further proceedings in the matter of complaint against Mr. Fox be postponed for two months (i.e. to a period beyond the session), urging, on behalf of this motion, that the proceedings had been wrong from the beginning, in having originated in the Lords instead of in the Commons. It being an undeniable law of Parliament that, except for the maintenance of its own privileges, 'no criminal complaint can be preferred and proceeded upon in this House,' originally. The House of Commons is the grand inquest of the high court of Parliament, and it is competent for them alone to bring commoners before your lordships for high crimes and misdemeanours. Even in the case of peers, the inquest is preferred elsewhere, and the Bill is removed to your lordships' House, in order that you may proceed.' Were the proposed address persevered in, it would still require the concurrence of the Commons to give it force and effect. The House of Commons, when

"Lords' Journals, v. 45, pp. 203, 204.

w 45 Geo. III. c. 117.

▾ Th. pp. 208, 219, 223.

Case of
Baron Mc
Cleland.

the case came before them, might think fit to regard it in a different aspect, and might constitutionally resolve that the charges against Mr. Justice Fox ought to be proceeded upon by way of impeachment at the bar of the House of Lords, instead of by the more lenient method of an address for his removal from office. 'Then,' said Lord Grenville, 'see in what a situation we stand. Every one of your lordships would be liable to be challenged upon the mere fact that you had already decided.' 'It has been said, that unless you admit the power of the House of Lords, there is no clause in the Act by which you can give effect to the clauses for the removal of the judges.' But, 'there are many other cases, with regard to which matters may arise for the discretion of the House, without the necessity of your lordships deciding originally.' For example, where a judge had been convicted elsewhere of an offence, 'it might be a proper exercise of your lordships' functions to say, that although such conviction was not for a misdemeanour that induced the forfeiture of office, yet it rendered him unfit to be continued in the exercise of the judicial functions, . . . . and a fit object for the discretionary exercise of the power of this House to advise his re moval.' While it would be well to satisfy every clause in an Act of Parliament, yet I would wish that some should remain unsatisfied rather than you should assume a jurisdiction so inconvenient to exercise, and so perilous to the subjects of this realm.' At the close of the debate Lord Grenville's motion was agreed to, on a division, and thus the proceedings against Judge Fox came to an end. No further proceedings against the judge were instituted in either House of Parliament, and he remained upon the bench until July 23, 1816, when he resigned his office.

On June 2, 1819, a member of the House of Commons, in his place, presented an article of charge of certain crimes and misdemeanours against the Hon. James McCleland, one of the barons of the court of exchequer in Ireland, which was delivered in at the table of the House and read. He then moved that, on that day fortnight, the House would resolve itself into a committee of the whole, to take the said article into consideration. Lord Castlereagh (the foreign secretary) denied that 'there was any rational ground to impute such corruption to Baron McCleland as to justify the enquiry;' and after a short debate the motion was withdrawn; and it was resolved that the said article of charge be rejected.

* Parl. D. v. 7, pp. 226, 506, 5'6, 752-772.-See a protest signed by Lords Abercorn, Eldon, and others, against the abrupt termination of these proceedings, and disputing the validity of the reasons upon which

the House acted; ib. p. 788.

y Haydn, Book of Dignities, p. 455; and see Wright's History of Ireland, v. 3, p. 323.

Com. Jour. v. 74, p. 493. Parl. D. v. 11, pp. 850-854.