Commons refused to take further evidence at the bar, deeming that the allegations against the judge had been sufficiently established by the preliminary investigations before a royal commission and a select committee of their own. Nevertheless, the judge himself, in a petition to the House of Lords, protested against this course, as being unconstitutional, urging very forcibly that 'the evidence taken and reported by a select committee is only the basis of further enquiry, but that taken before the whole House is evidence for its decision.'c The House of Lords, by their own action in the matter, tacitly condemned the course taken by the House of Commons.d The application of this principle will obviously necessitate that the person complained of shall be duly informed of the intended proceedings against him at every stage of the enquiry; that copies of all petitions, articles of complaint, and orders of the House in relation thereto, shall be promptly communicated to him; and that, upon his applying to the House for such permission, leave should be given him to appear by himself or counsel in his own defence. 6. That in requesting the crown, by an address under the statute, to remove a judge who, in the opinion of the two Houses of Parliament, is unfit to continue to discharge judicial functions, the acts of misconduct which have occasioned the adoption of such an address ought to be recapitulated, in order to enable the sovereign to exercise a constitutional discretion in acting upon the advice of Parliament." inferior movable. But it is not merely judges of the superior courts Judges of who are amenable to the jurisdiction of Parliament, and courts, liable to removal upon an address of both Houses. The how restatute is equally applicable to the case of any judge,' holding office under the tenure of good behaviour.' It is true that the judges of the inferior courts are under the general supervision of the Queen's Bench, where they may be proceeded against by a criminal information for corruption or gross misconduct, and they are re Lords' Jour. v. 62, p. 602. d See ante, p. 869. • Sir Jonah Barrington's case, ante, p. 867. Case of W. McDermott. movable for misbehaviour, either at common law or by statute. The lord chancellor, moreover, has jurisdiction over magistrates, coroners and county court judges, and, if he shall see fit, may remove for inability or misbehaviour' any of these functionaries. But, independently of the power of supervision and control over judges of inferior jurisdiction, which is thus conferred upon the higher legal tribunals, it is in the discretion of Parliament to institute enquiries into the conduct of any person holding a judicial office, and if necessary to address the crown for his removal." Thus, on June 7, 1858, Viscount Hutchinson (Earl of Donoughmore) alleged in his place in the House of Lords, articles of charge against William McDermott, assistant barrister for the county of Kerry, attributing to him corrupt conduct, perjury, and the illegal sale of an office; and with a view to an address to the crown for his removal from office. The articles were laid upon the table, and ordered to be printed, and a copy ordered to be furnished to Mr. McDermott. And it was resolved that the said articles be referred to a committee of the whole House, to examine witnesses, and report thereon to the House, and that Mr. McDermott have leave to appear personally and by counsel before the committee. Several witnesses. were ordered to attend, and some to produce documents; and a correspondence, with representations from magistrates of Kerry, as to the improper conduct of this functionary, were presented (by command), and ordered to be printed. On June 14, certain amendments to the articles of charge having been made and presented by Lord Hutchinson, in his place, the same were ordered to be laid on the table, and the amended articles to be printed, and a copy delivered See ante, pp. 813, 814; Hans. D. v. 222, p. 1052; Broom, Constitutional Law, p. 790; Stats. 9 & 10 Vict. c. 95, sec. 18; 23 & 24 Vict. c. 116, sec. 6. See Mr. Kenrick's case, ante, p. 865. Case of the Salisbury magistrates, Hans. D. v. 196, p. 1608; case of Mr. Cook, county judge for Norfolk, Ib. v. 199, p. 1364; v. 200, p. 1174. Illegal committal of Mr. Smallbones, by the county judge of Farnham, Ib. v. 225, p. 1816; v. 226, pp. 55, 291; case of Mr. Anketell, 1b. v. 235, pp. 92, 1046. to Mr. McDermott; and the previous orders for the sitting of the committee thereon were again made. On the same day, a petition was received from Mr. McDermott, that the enquiry might be postponed, which was read, ordered to be printed, and to be considered next day. At the time appointed the petition was considered, but no order made thereon. But on June 18 the lord chancellor informed the House that Mr. McDermott had resigned his office, whereupon the orders for the House in committee, the attendance of witnesses, &c., were discharged.m On May 2, 1876, a member of the House of Commons moved, that, in the opinion of this House, it is not desirable that R. G. Wilberforce, Esq., should continue on the bench of magistrates. The motion was based upon 'facts which were not practically in dispute, and which showed, on the part of Mr. Wilberforce, an utter want of that tact, good sense, discretion, and sense of justice tempered with mercy, which should distinguish a judge.' The lord chancellor, it appears, had already sternly rebuked Mr. Wilberforce for his misconduct, but had refrained from dismissing him from office. The home secretary had also severely reproved him, and was authorised to express to the House his deep regret for what had taken place. Under these circumstances he hoped the House would reject the motion; the discussion of which should be a warning to all magistrates. Whereupon the motion was negatived on division. The control of Parliament over the judiciary is ex- Change of judicial ercised not merely in proceedings to effect the removal tenure by of an unworthy occupant of the bench, but also in legis- Parlialation to regulate or alter the tenure of persons holding judicial office. In 1867, a remarkable case occurred, which illustrates the power of Parliament over public functionaries holding office during 'good behaviour.' Upon the introduction of a Bill 'to extend the jurisdiction, alter and amend the procedure and practice, and regulate the establishment of the Court of Admiralty in Ireland,' with a view to bring under the cognisance of this court matters of common law in relation to which the presiding judge had no professional experience, ministers, being of opinion that the judge would be incompetent to discharge the additional duties, introduced a clause into the Bill to repeal his tenure of office, so as to permit of his removal at the pleasure of the crown. The judge protested strongly against this proceeding, and his friends took the sense of the House upon J Lords' Jls. v. 90, pp. 239, 244. 1 Ib. p. 251. ment. Prece dents of parliamentary enquiry. the clause. But, as it was provided in another part of the Bill that the judge should be entitled, on his retirement, to receive an annuity equal to his full salary, the proposed clause was agreed to by a large majority.n In Canada, by Act 9 Vict. c. 36, the tenure of office of the judges of the district courts in Upper Canada was changed from that of ' good behaviour' to 'during pleasure,' although, at the time, an enquiry into the conduct of the judge of the London district court was pending." Precedents for a similar exercise of legislative power are to be found in the constitutional history of the American republic. If such an Act be passed for the general good and not for party purposes, it is defensible, not otherwise. The quo animo determines the nature of the Act.P In India in November, 1875, a Mr. Fuller was convicted by Mr. Leeds, a joint-magistrate of Agra, of an assault upon a native servant, which occasioned his death. He was tried under the Indian penal code, which is much less severe than the English criminal law in regard to such offences, and was sentenced, merely, to a fine. The attention of the Government of India having been directed to this case, they called for information in regard to it, from the local government. The lieutenant-governor thereupon made enquiry of the High Court at Allahabad, who stated that, in their opinion, the sentence, though perhaps inadequate, did not seem to the court specially open to objection. In this opinion the lieutenant-governor concurred. Whereupon, the government of India addressed a letter to the government of the North-Western Provinces, expressing regret that no steps had been taken to remedy such an apparent failure of justice, and censuring Mr. Leeds for his want of judgment in his judicial capacity, and desiring that he should not be employed in any higher office for at least a year. The High Court at Allahabad, and the chief justice in particular, took exception to this action of the Indian executive, as trenching upon the independence of the judiciary, which they contended should constitutionally prevail in all parts of the British empire, subject only to the right of appeal to the Privy Council. And they requested that the whole case should be remitted for the opinion of the secretary of state for India, in council. In forwarding the papers and correspondence, the government of India vindicated their right to supervise the administration of justice throughout British India, and as an ultimate resort, and in Preceadequate cases, to censure and to punish flagrant miscarriages of dents. justice; and to comment, when necessary, on the course of the administration of justice in India. In reply the secretary for India, in two despatches, dated March 22, 1877, intimated his approval of the censure passed on Mr. Leeds for his inadequate sentence upon Mr. Fuller; and of the governor-general's expression of regret that the local authorities had not brought his proceedings under judicial review. In this expression the governor-general (in the opinion of the secretary of state) was exercising a purely executive function, similar to that which, in England, would be exercised by the attorney-general, or some other officer of the executive government, in the supervision of subordinate courts, or in initiating action by which the decisions of subordinate tribunals are submitted to the consideration of a superior court. In the graver constitutional question, upon which the opinion of the secretary of state was invited, as to whether the judges of the high court are liable to have their action approved or condemned by the governor-general in council, in any matter which falls clearly within their competency, the secretary declares, that bearing in mind the vital difference between the tenure of English and Indian judges, and that the Act of 1861 specially provides that judges in all the high courts of India should 'hold their offices during her Majesty's pleasure'-it must be understood that the right to dismiss an officer carries necessarily with it a right to indicate the conduct which may incur dismissal; in other words, to approve or condemn the action of the functionary in question. But, while asserting this doctrine, it will always be remembered that, as a matter of policy any executive action trenching on the independence of judges in the exercise of their purely judicial functions, could only be justified by reasons of extreme necessity.' These despatches were approved by eleven members of the Council of India one councillor only recording his dissent therefrom.¶ On June 28, 1877, Mr. Lowe called the attention of the House of Commons to the foregoing despatch, with the view to a declaration that, in the opinion of the House, the power of the crown to remove judges of the high courts of India, who hold their office during the royal pleasure, ought to be exercised on the same principles as if they held their office during good behaviour. But, though Mr. Lowe argued, with great force and ability in support of this view, in which he was sustained by Sir Henry James. Yet the sense of the House was averse to this proposition, and in favour of the action taken by the executive government.r The vice-warden of the Stannaries, in the Duchy of Cornwall, is Com. Pap. 1877, v. 63, p. 343. Hans. D. v. 235, p. 416. |