Jonah for his misconduct and malversation in office, and declaring it to be the opinion of the committee that he was unfit to continue to hold the office of Judge of the High Court of Admiralty. These resolutions were agreed to, and ordered to be reported to the House.h At this stage, Sir Jonah petitioned for an enquiry at the bar, and that he might be allowed counsel for his defence. Leave to be heard by counsel was given, and Mr. Denman addressed the House in that capacity. It was urged by counsel, that in a proceeding for the removal of a judge under the statute, the House ought to adopt as the foundation of their own judicial proceedings nothing but proof of guilt, given according to the strict rules of legal evidence. That the House ought not to be bound by any previous enquiry, conducted by a select committee of its own members, but should not proceed by address except after the fullest previous investigation into the case by the House itself. In reply, it was argued that the House, being free to choose its course of procedure against the delinquent judge, had, out of compassion for his age and infirmities, preferred to proceed by an address, to instituting an impeachment, or sending him to a court of justice for trial; the punishment consequent upon an address being lighter than that which would follow upon either of the other courses. Finally, the House refused to take additional evidence at the bar, on the ground that so strong a case against the Judge had been already made out, on sworn testimony before the Commissioners, and after a searching investigation before a committee-evidence, moreover, of a documentary description, founded upon admissions by Sir Jonah himself-that there was no necessity for further testimony. This decision, however, was much questioned by some learned members, and particularly by Sir Charles Wetherell (an ex-Attorney-General), who said, although he required nothing to convince him of Sir Jonah's guilt, and was ready to make allowance for the special circumstances of the case, yet, looking at the question in a constitutional point of view, he could not but think that an address for the removal of a judge ought to be passed upon the hearing of evidence at the bar.'k This view was entertained by the Judge himself, who petitioned the House for such an investigation, prior to the passing of an address.1 Nevertheless, at the close of the debate, on May 22, the series of resolutions were agreed to by the House, without further enquiry, and a committee appointed to draft an address to the crown thereupon. The address, which recapitulated the acts of malversation of which Sir Jonah Barrington had been guilty, and declared that it h Mirror of Parlt. 1830, pp. 15721576. 1 Ibid. p. 1702. Ibid. pp. 1863, 1897. VOL. II. 3 B Case of would be unfit, and of bad example, that he should continue to hold office as a judge, was reported, agreed to, and ordered to be communicated to the Lords for their concurrence.TM The House of Lords applied, by message, to the Commons for copies of all the documents upon which the address was founded, including the report of the select committee on Sir Jonah Barrington's case. All these papers were communicated to their lordships." At this stage, Sir Jonah petitioned the House of Lords, asseverating his innocence of the charges made against him, protesting against the unconstitutionality of the course adopted by the House of Commons in passing an address to the crown for his removal from office, under a penal statute, without public enquiry and investigation at the bar,' and praying that their lordships would grant him leave to be heard by counsel, and to produce evidence at their bar in his own defence. Permission was granted accordingly. The enquiry then proceeded in due form, the Attorney-General being ordered to attend, with the necessary witnesses on both sides. The case against the judge was opened by the Attorney and SolicitorGenerals at the bar of the House, in presence of Sir Jonah Barrington and his counsel. The defence and cross-examinations were conducted in part by Sir Jonah and in part by his counsel. After the witnesses for the prosecution had been examined, the Judge's counsel spoke on his behalf, and the Attorney-General in reply. The evidence was then ordered to be printed. Afterwards, the address was fully considered and agreed to, and the House of Commons acquainted therewith. Certain members were deputed by the two Houses to present the address, and his majesty was pleased to reply to the same as follows: 'I cannot but regret the circumstances which have led to this address. I will give directions that Sir Jonah Barrington be removed from the office which he holds of Judge of the High Court of Admiralty in Ireland.' Thus after a protracted investigation, extending over three sessions of Parliament, the proceedings against Judge Barrington were brought to a successful close. The next case of this description which engaged the attention of Parliament was that of Sir William Smith, one of the barons of the Court of Exchequer, in Ireland, in 1834, the particulars of which have been described in a previous chapter. The point established upon this occasion was that the House will not sanction the nomination of a select committee to enquire into the conduct of a judge, unless a primâ facie case-sufficient, if substantiated to justify his removal from the bench, pursuant to an address to the crown under the statute-is made out by the mover for the appointment of such committee. t On February 21, 1843, Mr. Thomas Duncombe called attention in the House of Commons to certain objectionable expressions in the charges of Lord Abinger, Chief Baron of the Court of Exchequer, and alleged that his lordship's judicial conduct had been partial, unconstitutional, and oppressive; also, that he had made use of ultra political and party language on the bench. He then moved to resolve, 'that petitions having been presented to this House, complaining of Lord Chief Baron Abinger, when presiding as judge upon the execution of the late special commission, executed in the counties of Chester and Lancaster, this House do summon witnesses to the bar for the purpose of ascertaining the language used by the said Judge in charging the grand juries, and in summing up the cases to the petty juries who were empannelled under such special commissions, and also in passing sentences upon prisoners convicted under the same commission.' " The Attorney-General (Sir F. Pollock) resisted this motion, and defended the conduct of the Judge. He did not deny the proper vocation of the House of Commons for such enquiries in general,' but considered the present complaint to be wholly unsubstantiated. It is in fact an admitted principle that no government should support a motion for an enquiry into the conduct of a judge, unless they have first made an investigation, and are prepared to say that they think it a fit case to be followed up by an address for his dismissal.' w In reference to the allegation that Lord Abinger had spoken from the bench in terms that were more appropriate to a politician than to a judge, it was allowed that, according to ancient usage and the requirements of his office, it sometimes became the duty of a judge to refer to political affairs; but Lord John Russell objected that Lord Abinger had 'spoken both as a politician and a lawyer,' when he should have spoken only as the judge. Nevertheless, 'he regarded the independence of the judges to be so sacred, that nothing Case of Lord Abinger. Case of Sir but the most imperious necessity should induce the House to adopt a course that might tend to weaken their standing or endanger their authority.' Sir James Graham did not object to questions of this nature being asked in the House,' but yet he considered it was due to the cause of justice itself to defend the judges of the land, unless we shall be satisfied that their conduct has been corrupt, and their motives dishonest.' He further declared thatexcept in Baron Smith's case (above mentioned), wherein the House retraced its steps--there had been no instance of the House of Commons instituting an enquiry with a view to discover evidence, but that it had been the invariable practice for distinct charges and specific allegations to be made, with a proffer of evidence in support of the same, before the House was called upon to commence proceedings of this description. Mr. Duncombe's motion was then negatived by a large majority.a On February 12, 1867, Earl Russell presented a petition to the House of Lords from a Mr. Wason, complaining of certain conduct of Sir Fitzroy Kelly, which, it was alleged, rendered him unfit for the office to which he had been recently appointed, of Lord Chief Baron of the Exchequer, and praying for an enquiry into the same, in order that, if the charge should be proven, an address to the crown for the removal of the said judge might be passed by both Houses of Parliament. Earl Russell stated that he did not concur in the prayer of the petition (which related to events which had taken place thirty-two years previously), but that he had felt it to be his duty to present it, rather than refuse Mr. Wason an opportunity of obtaining a constitutional remedy in a matter of great public importance. He added, that he had given a copy of the petition beforehand to the Lord Chancellor, for the information of the Lord Chief Baron, so as to enable him, on the presentation of the petition, to rebut the charges therein contained. A debate then followed, wherein the conduct of the judge upon the occasion in question was completely vindicated by the Lord Chancellor and other peers. Earl Russell acknowledged that all the charges preferred had been satisfactorily answered, and, with the unanimous consent of the House, he withdrew the petition.b y Hans. Deb. vol. lxvi. p. 1124. Hans. Deb. vol. clxxxv. pp. 257273. This case gave rise to an action in the Court of Queen's Bench by Mr. Wason against Mr. Walter, the proprietor of the Times, to recover damages for an alleged libel contained in a report of the debate in the House a of Lords on the presentation of Mr. Wason's petition, and in leading articles commenting on that debate. But the court, upon two occasions, in 1867 and 1868, decided that faithful and bond fide report of a debate in Parliament is a privileged publication, and cannot be made the subject of an action for libel on account of statements contained in Parlia ment for From an examination of the foregoing cases of procedure under the statute for the removal of judges of the superior courts for misconduct in office, it is not difficult to ascertain the correct mode of proceeding, in Procedure both Houses of Parliament, upon such occasions. It is true that the statute is silent with regard to the method removal of judges. of conducting these investigations, but the wisdom of Parliament in applying to this particular class of questions the constitutional maxims that regulate all judicial enquiries affecting the rights and liberties of the subject, has gradually evolved certain definite rules which are applicable to all cases of this description. 1. It is evident that, while the consent of both Houses of Parliament is necessary to an address to the crown, upon which the sovereign shall be empowered to remove a judge holding office during 'good behaviour,' and while it is equally competent to either House to receive petitions complaining of the administration of justice, or of the conduct of persons holding judicial office, or even to institute preliminary enquiries, by a select committee, into such complaints; yet that a joint address under the statute ought properly to originate in the House of Commons, as being peculiarly the impeaching body, and preeminently the grand inquest of the high court of parliament.' 2. It is also evident that the action of Parliament for the removal of a judge may originate in various ways. It may be invoked upon articles of charge presented to in the speeches therein reported;' also, that criticisms on matters of public interest, if written honestly,' &c., are equally privileged [Law Times Reports, N.S., vol. xvii. p. 386. Ibid. vol. xix. p. 409]. This judgment is a direct enlargement of the liberty of the subject, for hitherto the attempts to protect reports of parliamentary proceedings, when published bona fide, from the law of libel, had failed of complete success; (see May, Parl. Prac. ed. 1868, 730. See Judge Fox's case, ante, p. |