THE UNITED KINGDOM

Introduction. It is only fair to the Stuart Kings to recognize that, in England, the acute controversy may be said to have been due in part to an element of novelty in the views of Sir Edward Coke.

remember that in Norman times Judges were virtually indistinguish­able from Civil Servants, that until the time of William III they were, as a rule, appointed during the King’s pleasure and were frequently dismissed for political reasons and that there was no change in the law until the Act of Settlement. Nevertheless, the prime cause of the conflict leading up to that Act seems clearly to have been that the Stuart Kings departed from existing practice for their own ends. It is not to be wondered at that a redoubtable fighter, as Coke proved himself to be, reacted by claiming judicial independence in a more extreme form than seems to have been previously recognized.

This is not the place to say much about that particular decisive battle of the world; but one feature of the campaign which should, I think, be stressed is that Coke succeeded despite not only the pusillanimity of his brother Judges but also the antagonism of two occupants of the Woolsack: Ellesmere, who pronounced that the King was the law speaking, and Bacon, who uttered the famous dictum that the Judges ‘must be lions, but yet lions under the Throne, being circumspect that they did not check or oppose any points of sovereignty’.

Now let us consider the effect of the series of Acts of Parliament for which Coke must take the indirect credit. Students of law or political science have probably been taught that in England a Judge can be removed from office only for misbehaviour on an address to the Sovereign by both Houses of Parliament; but there is ample authority for maintaining that that is not the law, and that the true position is that a Judge is removable by other means for misbehaviour, and on an address from both Houses of Parliament for that or any other reason.¹1 have nowhere seen the opposing views discussed or even explained, but the question seems to be a fairly straightforward matter of statute interpretation.

Act of Settlement.¹ Section 3 of this Act provided that ‘Judges Com­mission be made quamdiu se bene gesserint and their salaries ascertained and established; but upon the address of both Houses of Parliament it may be lawful to remove them’.

¹ Todd, Parliamentary Government in England, Vol. II, pp. 726-9; the follow­ing books on Constitution Law: Ridges, 8th edn., p. 336; Hood Phillips, 2nd edn., p. 557; Anson, 4th edn., Vol. 2, Pt. I, p. 234; Shell Co. of Australia v Federal Commr. of Taxation [1931], A.C. 275 at p. 280: Cf. Chitty, Prerogatives of the Crown, p. 83; Keir & Lawson, Cases on Constitutional Law, 4th edn., Rev., p. 199; Dicey, Law of the Constitution, 10th edn., p. 410.

²12 & 13 W. 3, c. 2.

The crucial word is ‘but’. It gives what follows the effect of a proviso—a qualification on that which precedes it. A free paraphrase might read: the Judges hold office during good behaviour: provided that they may nevertheless be removed on a Parliamentary address. Surely the intention is clear?—that an address might be presented for the removal of a Judge for any reason which Parliament regarded as sufficient but that, unless Parliament moved in the matter, he could be removed by other means only for misbehaviour.

This construction is fortified, in my submission to the point of impregnability, when it is remembered that an appointment during good behaviour is at common law an appointment for life but imports a liability to removal for misbehaviour by proceedings begun by scire facias.¹ If, after that, any doubt remains, it is removed by Act i George III, Cap. 23. Section 1 enacted that Judges’ Commissions should continue in force during good behaviour notwithstanding the demise of the Crown; and section 2, which enabled the King to remove a Judge upon the address of both Houses of Parliament began with the words ‘Provided always’. In short, as Alpheus Todd, writing in 1869, explained in his Parliamentary Government in England¹ the liability to removal on Parliamentary address was ‘in fact, a qualification of, or exception from, the words creating a tenure during good behaviour, and not an incident or legal consequence thereof’.

Bill of169 2. It may not be generally known that the Act of Settlement was not Parliament’s first attempt to deal with the danger of challenge by the Crown to judicial independence. In February 1692, a Bill³ entitled the Judges’ Commissions and Salaries Bill was passed by the Houses of Parliament; but William III refused his assent for a reason which must command our sympathy: the Bill charged the Judges’ salaries on the Crown’s hereditary revenues. The Bill provided that every Judge should by virtue of the Act hold his place or office ‘so long as he shall well behave himself therein, unless he shall voluntary surrender or resign the same’. It said nothing about the nature of procedure for removal, but an amendment was moved in the House of Lords that ‘if any Judge comes to be tried, he may be tried by all the Judges, and so to come hither by writ of error’. The indication is clear that judicial proceedings were in contemplation.

* Todd, supra, p. 727; Ridges, supra, p. 336. ¹ P. 729.

’ Historical Manuscripts Commission, 14th Report, 1894, Pt. VJ, pp. 76 to 79.

Judicature Act, 1873' This was Parliament’s next offer. It never came into operation but it has an interest peculiar to itself. Section 9 provided that Judges were to hold office for life, subject to a power of removal by Her Majesty on an address presented to Her Majesty by both Houses of Parliament. This is substantially in the same terms as the later Acts with the notable exception that ‘for life’ appears instead of ‘during good behaviour’. Since there is no reference to good behaviour, it would have been very difficult indeed to contend under this Act that Parliament could not have presented an address for the removal of a Judge on any grounds whatever. It is perhaps surprising that section 13 of the Judicature (Ireland) Act 1877,² still in force in Northern Ireland, is in the same terms as the Act of 1873.

Present law. The Supreme Court of Judicature (1873) Amendment Act, 1875⁵ repealed section 9 of the Act of 1873 ^{anprocedure might well meet the same fate as that other comatose anachronism which sur­prisingly awoke about thirty years ago—trial by the House of Lords of a Peer charged with a felony.}