Colonial judges. Their tenure of office. another functionary having judicial powers within certain limits specially assigned to him. He exercises both a common law and an equity jurisdiction as judge of the Stannaries Court, and is appointed by the Duke of Cornwall during 'good behaviour,' and is removable by him upon a requisition, stating sufficient grounds for the same, and signed by a majority of the council, &c. of the duchy. When a Bill to improve the administration of justice in this court was under the consideration of Parliament, Lord Wynford (Chief Justice Best) proposed that the judge should be removable upon the certificate of the barons of the exchequer,' addressed to the Duke of Cornwall, but the motion was negatived. Colonial Judges. So long as judges of the supreme courts of law in the British colonies were appointed directly by the crown, or under the authority of imperial statutes, it was customary for them to receive their appointments during pleasure. The reasons for the continuance of this tenure in the colonies, after imperial legislation for the independence of the judges in Great Britain, may be gathered from a pamphlet published by C. Colden, Esq., in 1767, in vindication of his conduct as lieut.-governor of the province of New York.u Thus, by the Act 4 Geo. IV. c. 96, which was reenacted by the 9 Geo. IV. c. 83, the judges of the supreme courts in New South Wales and Van Diemen's Land were removable at the will of the crown. But these statutes were repealed by imperial enactments, which provided new constitutions for the Australian colonies-5 & 6 Vict. c. 76; 18 & 19 Vict. cc. 54 and 55. And by the Act 6 & 7 Will. IV. c. 17, sec. 5, the judges of supreme courts of judicature in the West Indies were appointed to hold office during the pleasure of the crown. But this Act was constructively repealed by the Act 28 & 29 Vict. c. 63, sec. 5, which em $ 6 & 7 Will. IV. c 106, sec. 2. u N. York Hist. Soc. Col. for 1877, p. 433. powered all colonial legislatures to establish courts of judicature and to provide for the constitution of the same; and it was formally repealed by the Statute Law Revision Act of 1874. A similar tenure, however, still prevails in respect to judges in the East Indies and in crown colonies, and generally in all colonies not possessing responsible government.▾ Nevertheless, the great constitutional principle, embodied in the Act of Settlement, that judicial office should be holden upon a permanent tenure, has been practically extended to all colonial judges; so far at least as to entitle them to claim protection against arbitrary or unjustifiable deprivation of office, and to forbid their removal for any cause of complaint except after a fair and impartial investigation on the part of the crown.w In 1782 an imperial statute was passed which contains the following provisions: That if any person holding an office granted or grantable by patent from How rethe crown, shall be wilfully absent from the colony movable. wherein the same ought to be exercised, without a reasonable cause to be allowed by the governor and council of the colony, or shall neglect the duty of such office, or otherwise misbehave therein, it shall and may be lawful to and for such governor and council to amove such person' from the said office: but any person who shall think himself aggrieved by such a decision may appeal to his majesty in council. V X This law is still in force, and although it does not Papers respecting colonial judges, Com. Pap. 1870, v. 49, p. 435. (Also given in 12 Moore, Indian App. cases, Appx.); Act 24 & 25 Vict. c. 104. Law Mag. N. S. v. 20, pp. 199205; Rep. of Come. of Society for Promoting Amendment of the Law in 1847 on Colonial Judgeships. * Act 22 Geo. III. c. 75, secs. 2, 3. This Act was confirmed and VOL. II. amended by the Act 54 Geo. III. y Hans. D. v. 187, p. 1495. The 3 L Colonial judges. professedly refer to colonial judges, it has been repeatedly decided by the Judicial Committee of the Privy Council to extend to such functionaries. Adverting to this statute, in 1858, in the case of Robertson v. The Governor-General of New South Wales, the Judicial Committee determined that it applies only to offices held by patent, and to offices held for life or for a certain term,' and that an office held merely durante bene placito could not be considered as coming within the terms of the Act.2 it From these decisions two conclusions may be drawn ; firstly, that no colonial judges can be regarded as holding their offices merely' at the pleasure of the crown; and, secondly, that be the nature of their tenure what may, the statute of the 22 Geo. III. c. 75 confers upon the crown a power of amotion similar to that which corporations possess over their officers, or to the proceedings in England before the Court of Queen's Bench, or the lord chancellor, for the removal of judges of the inferior courts for misconduct in office. Under this statute, all colonial judges appointed by patent under the royal sign manual (which is the usual, if not universal, mode of appointment) are removable at the discretion of the crown, to be exercised by the governor and council of the particular colony, for any cause whatsoever that may be deemed sufficient to disqualify for the proper discharge of judicial functions, subject, however, to an appeal to the Queen in council." But before any steps are taken to remove a judge from his lates to patent officers fulfilling the 11 Moore, P.C. p. 295. Memo. by Sir F. Rogers, Com. Pap. 1870, v. 49, p. 440. For precedents of proceedings under this statute, for removal of a judge, see case of Judge Montagu, of Van Diemen's Land, in 1848, Com. Pap. 1847-8, v. 43, p. 577; of Ch. Justice Pedder, of Van Diemen's Land, in 1848, which resulted in his unanimous acquittal, 1b. pp. 624-646; of Judge Boothby, of S. Australia, in 1867, S. Aust. Parl. Pap. 1867, v. 2, Nos. 22, 23. And see Up. Can. Q. B. Rep. v. 46, p. 483. office by virtue of this Act, he must be allowed an opportunity of being heard in his own defence." In Canada, by the British North America Act (sec. 96) the judges are appointed by the governor-general,' and by sec. 99 are ' removable by the governor-general, on address of the Senate and House of Commons.' In 1846, Lord Chancellor Lyndhurst, in the Judicial Committee Judge of the Privy Council, expressed a doubt whether a colonial governor Willis. was at liberty to remove a judge under the powers of his commission, but declared that it could be done under the statute 22 Geo. III. He added that the first case of amotion, under this statute, was that of a puisne judge J. W. Willis, who was removed from the bench in Upper Canada by the governor and council in the year 1829, in consequence of his refusing to sit in the court in the absence of the chief justice; he being of opinion that the court was incompetent to sit unless all the judges were present. This order of amotion being appealed from was confirmed by the Privy Council.c intention of the law obviously requires that there should be a full and fair investigation before removal, as will appear from the following case, which, strange to say, arose out of the removal of the same gentleman from a judicial office in New South Wales. Upon an appeal against an order of amotion of J. W. Willis, Esq., from the office of judge of the supreme court of New South Wales, made by Sir George Gipps, the governor and executive council of that colony, the Judicial Committee of the Privy Council decided, on July 8, 1846, after hearing counsel on both sides, that the governor in council had power in law to amove Mr. Willis from his office of judge, under the authority of the 22 Geo. III.; that upon the facts appearing before the governor in council, and established before their lordships, there were sufficient grounds for such removal, but the governor and council ought to have given Mr. Willis some opportunity of being previously heard against the amotion, and that for their neglect of this, the order of removal should be reversed.d The judge, however, did not return to Australia, but remained in England, where he died on 10th September, 1877. Again, in 1849, in the case of Algernon Montagu, Esq., late a Judge puisne judge of the supreme court of Van Diemen's Land, against Montagu. Sir William Denison (the lieutenant-governor) and executive council of that colony, the Judicial Committee decided that the governor and council of a colony have power under the statute 22 Geo. III. c. 75, b Lord Chanc. Westbury; Hans. D. v. 164, p. 1063. 5 Moore, P.C. p. 388. Lord Lyndhurst's memory was at fault as to result of this appeal to the P.C., as Colonial judges. Original jurisdic tion of Privy Council over judges. to remove a judge from his office for misbehaviour. And that where a judge availed himself of his judicial office, through an incident connected with the constitution of the court over which he presided, to obstruct his creditor from recovering a debt due from him, and upon investigation was found to be involved to a large extent in bill transactions and pecuniary embarrassment, there was sufficient ground to justify the governor and council in removing him from office. It was also held that, although there had been some irregularity in pronouncing an order for amotion, when the judge had been only called upon to show cause against an order of suspension, yet that as the facts justified the order of amotion, and the judge had sustained no prejudice by such irregularity, the order of amotion ought not to be reversed. Subsequently, in 1857, the colonial legislature of Tasmania (formerly known as Van Diemen's Land) passed an Act to declare that it should not be lawful for the governor, either with or without the advice of the executive council, to suspend or amove any judge of the supreme court, unless upon the address of both Houses of the Parliament of Tasmania (Act 20 Vict. No. 7). But from the decisions of the Privy Council in relation to judges in the colonies of Queensland and Victoria, under similar circumstances, it is to be inferred that this colonial Act does not override the authority of the imperial statute of 22 Geo. III. so far as amotion is concerned, although the right to suspend a judge in Tasmania can no longer be exercised. In fact, to this extent the Tasmanian statute must be regarded as absolutely null and void, being repugnant' to the imperial statute, and not authorised or confirmed by imperial legislation. But it is not only upon an appeal from the decision of a colonial governor and council for the removal of a judge under the statute 22 Geo. III. that the Privy Council has jurisdiction in such matters of complaint. It is competent for the crown, acting through a secretary of state, and under the provisions of the Act 3 & 4 Will. IV. c. 41, sec. 4, to refer to the consideration of the Judicial Committee a memorial from a legislative body, in any of the colonies, complaining of the judicial conduct of a judge therein." 6 Moore, P.C. p. 489. For the governor's own view of these transactions, see Denison's Viceregal Life, v. i. pp. 73, 134; and Hans. D. v. 206, p. 19.9. See post, pp. 890, 896. See Sir F. Roger's Memo. on the removal of colonial judges, Com. Pap. 1870, v. 49, p. 440, and in 6 Moore P.C. N.S. App. pp. 9-20. |