Page images
PDF

address of both Houses of Parliament, the Royal jealousy of the measure is seen by the promise under which that arrangement was not to take effect till the deaths of William III. and of Anne, and the failure of their issue respectively, in other words, till the accession of the House of Hanover. It was not till the reign of George III. that the Commissions of the judges ceased to be void on the demise of the Crown.

But the dislike of the Sovereign to the independence of the judges may be most clearly seen in Irish affairs. Ireland had no Bill of Rights and no Act of Settlement. It was the aim of the “patriot” party in the Irish Parliament to assimilate the Constitution of their country to that of Great Britain. To this endeavour the most persistent opposition was offered by the English Government, and the conflict raged most fiercely on the question of the independence of the Irish Judges. The Crown had always been peculiarly tenacious of its power to remove the members of the Irish judiciary. Thus, in 1776, Lord Harcourt, when Lord Lieutenant, writes from Ireland to Lord \/Veymouth, the English Secretary of State, “The state of the country duly considered, I am persuaded it would be undesirable to make the commission of judges to continue during good behaviour.” Again, Lord Buckingham, in 1780, writes in his capacity of Lord Lieutenant of Ireland, “As the having the commissions of the Irish judges the same as in England has been a favourite wish in this country, it was never, as I understand, thought expedient to oppose the heads (of Bills for this purpose) in the House of Commons, the reasons upon which these heads have been disapproved of not being of a nature to be agitated hore (in Ireland) even in quiet times.” At last, in 1782, the free Irish Parliament secured to the Irish judges the independence enjoyed by their brethren in England for a period of sixty-two years previously.

judges are accordingly only removable by an Act of the whole Legislature. This power has, in England, never been exercised. In Ireland there is but one instance of so drastic a remedy for the vindication of the purity of the Bench. In 1830, Sir jonah Barrington, judge of the Court of Admiralty in Ireland, was removed from his office on the address of both Houses of Parliament to the Crown—malversation of public funds having been clearly proved against him. Again, early in this century, Mr. Luke Fox, an Irish judge, was accused of partial and unbecoming conduct in his judicial office. This case Iwas the subject of a long inquiry in the House of Lords, an inquiry which was terminated by the voluntary resignation of the judge. Another Irish judge, a Mr. johnstoue, was about the same time convicted of a private libel. He resigned his office, and thus avoided dismissal. In our own time proceedings were unsuccessfully instituted in the House of Commons by the late Mr. Isaac Butt, for the dismissal of Mr. justice Keogh for alleged misconduct in the trial of the Galway Election Petition in 1872.

judges are not only protected from capricious dismissal. They are practically above the reach of Parliamentary criticism. The fact that their salaries are paid out of the Consolidated Fund precludes discussion of their conduct in Committee of Supply. The fact that there is a method of dismissing them by address renders disparaging remarks on judicial personages in Parliament subject to the censure of the Chair.

But although judges are irremovable, and protected from public reflections on their conduct, they are still, if I may use the word, “promoveable.” “It is always,” says Mr. Hallam, when commenting on the provision of the Act of Settlement securing the independence of the judges, “to be kept in mind that they are still accessible to the hope of further promotion, to the zeal of political attach

ment, to the flattery of princes and ministers." “No judicial promotion whatever," says Lord Brougham, “ should be possible. The hopes of it, the struggle for it, the chagrin at not receiving it, all interfere with the perfect calmness, the entire abstraction from Court intrigue, the complete independence of all Party connection, the exclusive devotion to judicial duties, which ought to characterise the great functionaries of justice—the oracles of the law.” These words, written a generation ago, seem strange to us who have witnessed the passing of a statute by which Lords of Appeal in Ordinary must have, before their promotion to that office, several years’ experience in

a judicial capacity, and who have seen without protest one

]udge promoted on four different occasions, and honoured with a baronetcy and life peerage. But, in truth, even in the time of Hallam and Brougham, the doctrines of the Revolution had not attained their full development. There was still an antagonism between the people and the Executive Government. The House of Commons had not yet become the reflection of the people’s wishes. The prerogatives of the Crown had not been virtually transferred to a Cabinet responsible to the House of Commons, and through it to the people at large. The Act securing the independence of the judges was framed not to render them independent of the people, but independent of the Crown. At the present time, it is no exaggeration to say that the House of Commons exercises the prerogatives of the Crown, through its servants the Cabinet, as the representative of the people. The cumbrous procedure through which judges must be removed in default of resignation, in the case not of misconduct only, but even of physical and mental incapacity, is unsuited to the genius of our modern Constitutional Government. In the discussions on the Act of Settlement, it was seriously proposed that a judge should be rendered capable of dismissal from office on an address, not of both. but of either House of Parliament. This alone shews how far our notions of Constitutional Government have, in the development of public opinion, outrun those of our ancestors. No- Government would venture to dismiss a judge at the present day, unless supported by an unanimous public opinion. It is conceivable, though not probable, that the Lords would not join the Commons in an address to the Crown for the dismissal of a judge whose conduct cast contempt and odium on his office, or whose imbecility imperilled the interests of character, liberty, and property. In such case, the provisions of an earlieI" age for rendering the judges independent of the Crown might, through the action of the Lords, render them independent of the people. The control which the House of Commons should, through the Cabinet, have over the judges is, under the present system, halved with the other branch of the Legislature. The Lord Chancellor, at the present day, holds office at the pleasure of the Crown, in other words, at the pleasure of the Cabinet, which is the pleasure of the House of Commons as representing the Commons at large, whereas a puisne judge may hold office in defiance of the people and

the people’s representatives, at the will of the House of Lords.

[merged small][graphic]

III.—CONTEMPT OF COURT.

II. CONTEMPTS BY PUBLICATION.

Reports of part-heard cases—-Distinction between publication in ordinary way of business and publication by party or other interested person—-Plea of ignorance of pending action—Of ignorance of contents of paper by ostensible publisher.

i. Contempt: by Disiuterestcd Pt'rs0ns—Editors, Publishers, Printers, Writers.

Motions against where mere technical contempt, to be discouragedAliter where substantial interference-Libel rules as to fair comment do not extend to comment on pending case—lnspired and biassed article a gross

contempt.

(0.) Simple comnmit.

Insinuations against veracity of parties—Imputation of bad motivesClass journals—Fair discussion—Strong attack on one side—" Advancing and promoting the course of justice "—Local newspapers-Matters of local interest—Election petition—General papers— Comment for political reasons—Plea that party complaining has made public allusion to case, no answer—Statement that action has been abandoned—Drawing attention to case without particular comment—Copying article from other papers—Exhibitions of models of accused person and person alleged to have been murdered. _

(b.) Publication ofplcadings or other papers, with or without comment.

Papers in a proceeding necessarily ex parte—Publication a contempt as tending to prejudice—Intention in publisher’s mind immaterial—But application for committal should not be made where no substantial

intert'erence—Duty of Court to protect suitors against anonymous audacity—No excuse that document published would come in the ordinary course to the knowledge of a number of persons not strangers to the action—Contempt to publish a brief—A winding-up petition—Pleadings and aFfidavits—Publication of article expanding entry in cause listPublication of plaintifl‘s affidavits, with unfair comment—Plaintill' in suit of local interest furnishing pleadings to local edit0r—Fair and temperate discussion thereon.

(c.) Advertisemmts.

Advertisement received in the ordinary way of business—Advertisement offering reward for evidence.

« PreviousContinue »