Colonial
Judges.

lated, as far as possible, to that of the mother country, a provision similar to that contained in the Act of SettleRemovable ment, authorising the Judges of the Superior Courts of liamentary Law and Equity to be appointed during 'good behaviour,' subject to removal upon an address from both Houses of Parliament, has been established by legislative enactment in the particular colonies.

address.

Also by the
Governor

cil.

The constitutional Acts of the several Australian colonies, for example, contain clauses that the Judges of the Superior Courts therein shall be appointed during good behaviour; but, nevertheless, it shall be lawful for her Majesty to remove any such judge upon the address of both Houses of the colonial Parliament." In Canada the law is substantially the same, except that the Governor' is empowered to remove a judge upon the address of both Houses of the dominion Parliament; and in case any judge so removed thinks himself aggrieved thereby, he may, within six months, appeal to her Majesty in her Privy Council, and his amotion shall not be final until determined by that authority. The effect of this distinction will be hereafter explained.

Notwithstanding the facilities afforded for the removal and Coun- of a judge for misconduct, under the constitutional Acts, it has been held that the imperial statute 22 Geo. III. may still be invoked by the Governor and Council of any British colony, for the amotion of a judge for any reasonable cause. But in a colony where procedure by parliamentary address against an offending judge has been established, recourse to the statute of George III. should only be had upon complaint of legal and official misbehaviour.'

stances.

The law officers of the crown in 1862 advised the Secretary of State for the Colonies, in reference to a case which had occurred in Queensland, Australia, as follows:-Although the judges' commissions in Queensland continue in force during 'good behaviour,' subject to a power in the crown to remove a judge upon the address Under of both Houses of the Legislature, we think that in this colony the certain governor and council have power to remove any judge who (in the circumwords of the Act 22 Geo. III. c. 75) shall be wilfully absent from the colony without a reasonable cause to be allowed by the governor and council, or shall neglect the duty of his office, or otherwise misbehave therein. In so advising, it is hardly necessary for us to add, that what the statute contemplates is a case of legal and official misbehaviour and breach of duty; not any mere error of judgment or wrongheadedness, consistent with the bona fide discharge of official duty. And we should think it extremely unadvisable that this power should be exercised at all, except in some very clear and urgent case of unquestionable delinquency: the power given to the crown, upon the addresses of the legislature, being adequate, and more appropriate, for all other exigencies which may arise.

We do not think that any action would lie against the Governor for any act bonâ fide done by him under the powers of the statute aforesaid. 'P

From this opinion we may infer that where the remedy by parliamentary address is open, a judge should only be proceeded against under the statute 22 Geo. III., in a case analogous to that which, in England, would warrant the issue of a writ of scire facias to repeal the patent of a judge for misdemeanour in office. If so, the institution of proceedings by a governor and council under the statute, against a delinquent judge, may be looked upon as a substitute for the more formal and less available method of applying for the repeal of a patent granted during good behaviour,' upon an alleged breach of the condition thereof."

Judges.

Colonial The question as to the applicability of this statute to colonies wherein the judges hold office during 'good behaviour,' again arose in 1864, upon a controversy between the judges of the Supreme Court in Victoria and the executive government of that colony upon this very point. The case was ultimately submitted to the decision of the imperial authorities, whose verdict confirmed the opinion. above expressed, that the Imperial Act 22 Geo. III. c. 75, empowering the governor and council of a colony to remove a judge for certain specified offences, is neither repealed nor superseded by the introduction into the colonial system of the principle of irremovability implied in the tenure of good behaviour' for judicial appointments. Another question, as to the right of a governor and council to suspend, in lieu of removing, a judge under certain circumstances, was also disposed of upon this occasion; as will appear by the following narrative of the case.

Right of suspension.

Case of

Judge Barry.

On January 4, 1864, Sir Redmond Barry, one of the judges of the Supreme Court in Victoria, Australia, desiring a short vacation, notified the Governor, Sir C. H. Darling, of his intended absence, but without formally asking leave. His excellency referred the matter to the Attorney-General, to know whether this was legally correct. The Attorney-General reported that judges had no right to act thus; that leave should not be 'taken' but allowed' by the Governor and Council, pursuant to the Colonial Act 15 Victoria, No. 10, sec. 5, which provides that it shall be lawful for the Lieutenant-Governor, with the advice of the Executive Council, to suspend from his office until the pleasure of her majesty be known, any judge of the Supreme Court who shall be wilfully absent from the colony without a reasonable cause to be allowed by the said Lieutenant-Governor and Executive Council.' This opinion was afterwards communicated to Judge Barry by the Attorney-General, together with a minute of council allowing' his intended absence. Judge Barry then wrote to the Governor that he did not consider it necessary to obtain leave of absence before leaving the colony, since the passing of the Constitution Acts by which the position of the

judges of the Supreme Court had been altered. Under that Act they are appointed during 'good behaviour,' and 'are removable only upon the address of both houses of the legislature.' He therefore declined to be bound by the Attorney-General's opinion, and (in a subsequent letter) denied the right of the Executive Council to call in question his judicial conduct, alleging that 'that conduct can be enquired into in the way appointed by the constitution and in no other manner.' These letters were referred by the Governor to the consideration of the Cabinet.

cation

At this stage of the proceedings, a sharp correspondence took Direct place between Judge Barry, the Attorney-General, and the governor, communias to the right of the judges to communicate with the governor with the direct, notwithstanding the practice since the coming into force of Governor. the Constitution Act for all judicial and other officers in the public service of Victoria to communicate upon all questions affecting their official rights or responsibilities with the minister of the crown, who is charged with the duty of advising the governor in each particular case.' Ultimately Judge Barry was informed by the governor and Council that the Attorney-General was the responsible minister for the proper conduct of the legal business of government, the head of the department to which the Supreme Court is attached, and the proper medium of communication between the executive government and the judges of that court, and that all official communications from the judges respecting their rights, privileges, or duties, intended for the consideration of his excellency, or the government, must in future be addressed to that functionary. On September 29, Sir R. Barry, in the name and on the behalf of the whole judicial bench, again wrote to the governor requesting him to submit this question for the consideration of the Secretary of State for the Colonies, by whose determination they are willing to abide,' viz.-' whether the judges are entitled to communicate directly, in person or by letter, with the Governor of Victoria, on matters connected with their personal rights and privileges.' On April 19, 1865, the Colonial Secretary (Mr. Cardwell) replied to the effect that the judges, in common with all other inhabitants of the community, possessed the right of addressing the queen's representative on matters affecting their personal rights, but he declined to give directions as to the mode of conducting their official correspondence, upon matters which concerned their official rights and privileges, leaving it to the governor, after consulting his advisers, to determine the manner in which such communications should pass between the executive and judicial authorities of Victoria. But whatever be the mode of correspondence adopted, the arrangements ought to be such that the judges may feel secure that any communication they might make would reach [the governor's] hand, and would receive from the representative of the crown the attention to which it was entitled.'

Colonial In transmitting a copy of this despatch to the judges, the governor Judges. intimated that the rule previously communicated to them, as to the mode of communicating with the government in regard to official matters, must be adhered to, but that all such communications would receive from him the attention to which they were entitled. Upon the merits of the main question at issue between the judges and the executive government, the Attorney-General of Victoria, in a letter to Governor Darling, of August 22, 1864, asserted his conviction that the judges' claims were founded upon a construction of the 38th section of the Constitution Act, and of the Act of Settlement, and the Act 1 Geo. III., which was clearly erroneous,' and 'has not been sanctioned by a single English constitutional or legal authority.' The true doctrine on the subject, as held by the Minister of Justice and Attorney-General, was communicated to his excellency by these functionaries in an elaborate opinion.

May be removed

by governor and council.

This opinion first enquires whether the Act 15 Vict., No. 10, sec. 5, authorising the governor and council to suspend, until the queen's pleasure be known, a judge of the Supreme Court of Victoria who wilfully absents himself, without leave, is still in force, and it contends that inasmuch as it has not been expressly repealed, and is not inconsistent with the new tenure during 'good behaviour' of the judicial office, under the Constitution Act, it remains in force; together with the Imperial Acts 22 Geo. III. c. 75, and 54 Geo. III. c. 61, which, jointly, confer on the governor and council the power of suspending as well as of removing a judge.

In proof of these statements the opinion proceeds to enquire what 'misbehaviour' would constitute a legal breach of the conditions of this tenure, in language already quoted ;" and having ascertained this, it sets forth that the office of judge is also determinable upon an address to the crown by both houses of the local parliament : that upon the presentation of such an address the estate in his office of the judge in regard to whom the address is presented, may be defeated: that the crown is not bound to act upon such an address, but if it think fit so to do, is thereby empowered to remove the judge without any further enquiry, or without any other 'cause assigned than the request of the two houses.'

Assuming, therefore, that a judge is removable either for misbehaviour' in office, sufficient to constitute a legal breach of the condition of his patent, or at the pleasure of Parliament, expressed by an address from both Houses, and for no other cause whatsoever, the opinion next examines whether the power of suspension, under the Act 15 Vict. No. 10, is really consistent with the tenure of 'good behaviour.' At common law the grantor of an office has the power

Votes and Proceedings, Leg. Assembly, Victoria, 1864-5, B. No. 34,

C. No. 2.

" See ante, p. 727.