tains the following provisions:-That from henceforth no office to be exercised in any British Colony shall be granted or grantable by patent for any longer term than during such time as the grantee thereof, or person appointed thereto, shall discharge the duty thereof in and behave well therein.' That if any person person, holding such office shall be wilfully absent from the How recolony wherein the same ought to be exercised, without movable. 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."

This Act still continues in force, and although it does not 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.c

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 it may, the statute of the 22 Geo. III. c. 75 confers upon the crown a power of amotion similar to that which

a Act 22 Geo. III. c. 75. This Act was confirmed and amended by the Act 54 Geo. III. c. 61, which regulates the method of procedure by patent officers in any colony who may desire to obtain temporary leave

of absence; and declares that any
public officer who shall not comply
with such provisions shall be deemed
to have vacated his office.

b Hans. Deb. vol. clxxxvii. p. 1495.
11 Moore, P.C. 295.

Judges.

Colonial 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 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 office by virtue of this Act, he must be allowed an opportunity of being heard in his own defence."

Judge

Willis.

In proof of these assertions it may be stated that in 1846, Lord Chancellor Lyndhurst, in the Judicial Committee of the Privy Council, expressed a doubt whether a colonial governor 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 Judge Willis, who was removed from the bench in Upper Canada by the governor and council in the year 1829; but the order of amotion being appealed from was set aside by the Privy Council because the appellant was not heard in Canada. This case has not been reported, but it is evident, from contemporary authority, that the chancellor's memory was at fault in regard to the grounds of this decision, for the Privy Council rejected the appeal, and confirmed the proceedings of the Canadian government.f Nevertheless, whether the point that the appellant was not heard in his own defence was raised in this instance or not, the 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

d Lord Chancellor Westbury. Hans. Deb. vol. clxiv. p. 1063.

5 Moore, P.C. 388.

f Hans. Deb. N. S. vol. xxiv. p. 551.

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 that 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.

Again, in 1849, in the case of Algernon Montagu, Esq., late a Judge puisne judge of the Supreme Court of Van Dieman's Land, against Montagu. 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, 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.h

over

But it is not only upon an appeal from the decision Jurisdicof a Colonial Governor and Council for the removal of tion of Privy a judge under the statute 22 Geo. III., that the Privy Council Council has jurisdiction in such matters of complaint. Judges. It is competent for the crown, 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.

tice San

derson.

Thus, in 1847, on a memorial being presented to the Queen in Chief JusCouncil by the House of Assembly of the Island of Grenada, complaining generally of the conduct of John Sanderson, Esq. in his office of Chief Justice of that island, and enumerating various illegal and oppressive acts which he had committed during the fourteen years of his occupancy of the bench, her Majesty referred the

Colonial memorial to the Judicial Committee. The Chief Justice also Judges. presented a memorial to the Queen, in which he complained of the reopening of bygone matters, which had been disposed of by competent authority, and protesting against the application, in the first instance, to the Privy Council, whilst there was a legitimate mode of proceeding by impeachment before the Council in Grenada, where both parties could be conveniently heard; he prayed that the Assembly's complaint against him might be referred to that tribunal. But Her Majesty referred the judge's memorial to the Judicial Committee. After hearing counsel on both sides, the Committee decided that during the fourteen years he had held office, the Chief Justice appears to have committed several intemperate and some illegal acts; but that these acts were performed many years before the complaint was made, with only one exception, that of fining two magistrates for taking depositions in the third instead of the first person, the which, though erroneous and improper, was done in the execution of what the Chief Justice thought to be his duty. Wherefore, the Committee did not think that he ought to be removed for misconduct.i

Chief Justice Beau

mont.

Jurisdiction of Parliament.

Ionian

judges.

In July 1868, Chief Justice Beaumont, of British Guiana, was removed from the bench, upon a memorial to the Crown from the Local Court of Policy. This memorial charged the Chief Justice with improperly and intemperately holding up the Executive Government to contempt; vexatiously taking occasion to embarrass the colonial administration; imposing harsh and vindictive punishments; using offensive, intemperate, and calumnious language; illegally exercising arbitrary power; and improperly interfering with the judicial records. The memorial was referred to the Judicial Committee of the Privy Council, and at their recommendation an Order in Council was issued for the removal of the Chief Justice from office. J

Upon several occasions, a direct appeal has been made to the Imperial Parliament by, or on behalf of, judges who had been removed from office by the local authorities in various colonies or dependencies of the realm.

In 1863, a case of this description occurred in reference to certain judges in the Ionian Islands, which were then under the protection of the British Crown. Two of the judges of the Supreme Court in those islands had been removed by the Senate, with the approbation of the Lord High Commissioner, under a clause of the constitution which made judicial offices terminable at the end of J Law Magazine, N.S. vol. xxv. p. 358.

16 Moore, P.C. 38-42.

every five years. Taking advantage of the fact that this provision
had not been invariably enforced, the judges in question claimed
that they ought to be considered as practically irremovable,
and they appealed to the Secretary of State for the Colonies to be
reinstated in office. But after a careful review of the circumstances,
the Colonial Secretary ratified and confirmed the removal of these
functionaries. The matter was then brought before Parliament,
and debates arose in both Houses upon motions for the production of
papers, and subsequently in the House of Lords for further papers
upon the case.
The latter motion was resisted by ministers, on the
ground that it was a most dangerous precedent to authorise an
appeal to Parliament from acts of responsible ministers in the execu-
tion of the law, &c. Nevertheless, after much debate, the motion was
agreed to, and the papers produced. But no action followed in either
House.k In the course of the debate an able despatch was quoted
that had been addressed by the Colonial Secretary (Lord Glenelg)
to the Lord High Commissioner (Sir Howard Douglas) in 1838,
pointing out the incompatibility of an independent tenure of the
judicial office with institutions so unlike those of Great Britain;
and showing that the principle of irremovability, as it is established
in this country, and in other free states, is qualified and protected
from abuse by other principles of at least equal importance. Such
especially are:-1st. The right of the representatives of the people
to address the crown for the removal of any judge for imputed
misconduct; 2nd, the right of the public at large freely to discuss
the judicial administration; and 3rd, the right of a supreme tribunal,
exempt from all reasonable suspicion of prejudice, to receive and to
decide upon impeachments of the judges."1

In 1843, Mr. Langslow, a district judge in Ceylon, was suspended Ceylon by the local government of Ceylon, and afterwards dismissed by the judge. Colonial Secretary (Lord Stanley), for personal misconduct, not affecting his judicial character. On petition from Mr. Langslow, an address to the Queen was moved in the House of Commons, on his behalf, for a consideration of his case, and that such relief might be granted to him as might seem fit. But after debate, wherein the justice of the sentence against Mr. Langslow was substantiated, the motion was withdrawn."

m

Since the introduction into the constitution of various British colonies of the principle of responsible government,' under which their political system has been assimi

JJ Commons Papers, 1863, vol. xxxviii. p. 141.

See ante, vol. i. p. 417 n. 1 Hans. Deb. vol. clxx. p. 284.

DI

Hans. Deb. vol.xciv. pp. 278-305.
And see the case of Sir J. T. Cla-
ridge, Recorder of Prince of Wales'
Island, ante, vol. i. p. 413.