Preroga tive in ad CHAPTER XII. ROYAL PREROGATIVE IN MATTERS OF JUSTICE. THE next prerogative which claims our attention is that minister which appertains to the king as the fountain of justice,a ing justice and general conservator of the peace of the realm. and pre serving the public peace. So far as the maintenance of the public peace is concerned, the appointment and jurisdiction of officers to preserve the same are principally regulated by statutes, which are administered under the general supervision and responsibility of the home secretary." By the fountain of justice, the law does not mean the author or original, but only the distributor. Justice is not derived from the king, as from his free gift, but he is the steward of the public, to dispense it to whom it is due. He is not the spring, but the reservoir, from whence right and equity are conducted by a thousand channels to every individual.' Though justice flows from the king as its fountain, he cannot administer it personally, or authorise any deviation from the laws." It is an undoubted prerogative of the crown to erect courts of judicature; nevertheless, the crown alone cannot erect a court, or enable it to proceed, otherwise Co-opera- than according to the common law. Thus the cooperation of Parliament is indispensable to enable the crown to erect a court of civil law, a court of equity, or a new court with a new jurisdiction. Moreover, the tion of Parliament therein. a 282. с Palgrave, Eng. Const. v. 1, p. Cox, Inst. p. 592. See post, v. 2. p. 215. Ante, p. 271. d Bowyer, Const. Law, pp. 170, 171, 496. Forsyth, Const. Law, p. 186. expense attending the administration of justice must necessarily be defrayed out of moneys which have been voted by Parliament. When any new courts of justice are required, it is usual to establish them by statute, so that Parliament, having concurred with the crown as to the necessity for the same, is morally bound to appropriate the needful supplies for their establishment and support. The great function of Parliament has been declared to be the maintenance of the law and the redress of grievances.' Thus it is one of their principal duties and functions to be observant of the courts of justice, and to take due care that none of them, from the lowest to the highest, shall pursue new courses unknown to the laws and constitution of this kingdom, or to equity, sound legal policy, or substantial justice.' § By the theory of our constitution, those to whom the administration of justice is entrusted are not responsible to Parliament, except for actual misconduct in office. Otherwise, they occupy a position of complete independence; and necessarily so, for they are bound to administer the law without fear or favour, and it may become their duty to pronounce judgments, and to take proceedings, of which the House of Commons itself may disapprove. The express power which is given to the two Houses of Parliament by the Acts 12 & 13 Will. III. c. 2, and 1 Geo. III. c. 23, to address Proceedthe crown for the removal of judges from office, who ings against are otherwise declared to be irremovable, is indicative judges. of the duty that devolves upon Parliament to watch the course of the administration of justice. And Parlia Limits of parlia tion. ment has not only the right to address the crown for the removal of a particular judge, but, in cases of misconduct, it has the right of exercising a superintending control over the manner in which they discharge their duties, and to institute enquiries relative thereto.' i "The judges of the land act under responsibility; and any misconduct of which they may be guilty may be enquired into, and animadverted upon, by either House of Parliament. Such enquiries ordinarily begin, by questions addressed in either House to members of the administration, for information in regard to the matter of complaint. But in the discharge of these high inquisitorial mentary functions, Parliament has prescribed for itself certain interposi constitutional rules and limitations, to prevent undue encroachment upon the independence of the judicial office, which is in itself one of the main bulwarks of English liberty. And it devolves upon the advisers of the crown, as those who are peculiarly responsible for preserving the purity of justice inviolate, to be foremost in vindicating the independence of the judges by whomsoever it may be assailed, and in guarding against the intrusion of party influences in any proceedings of Parliament in matters affecting the administration of the law.1 Hans. D. v. 67, p. 1006. See discussions in Parliament in regard to the fitness of Ch. Just. Lefroy to continue to preside over Court of Q. B. in Ireland, when over ninety years of age. (Ib. v. 182, p. 1629; v. 183, pp. 353, 778.) His lordship resigned his seat on the bench very soon afterwards, when the Derby administration took office. (Ib. V. 184, p. 835.) Ld. Chan. Campbell, Hans. D. v. 163, p. 824. Amos, Fifty Years Eng. Const. p. 443. See discussions in H. of C. on certain expressions used in public by Irish judges. (Mir. Parl. 1833, pp. 3925-3927, and Hans. D. v. 178, p. 196. Ib. v. 227, p. 1871.) Enquiry respecting the language and demeanour of a Vice-Chan. in open court. (Hans. D. v. 172, p. 871.) Enquiry respecting the undue severity of certain sentences passed by the Dy. Asst. Judge of the Middlesex Sessions. (Ib. v. 175, p. 1061.) Enquiry respecting the great inequality of sentences frequently passed at assizes on criminals. (Ib. v. 198, pp. 1373, 1530). Debate upon an alleged improper exercise of the power of judges to punish for contempt of court. (1b. v. 224, p. 1743. Ib. v. 226, p. 375.) Hans. D. v. 215, p. 1297. L. T. v. 53, p. 58. Post, v. 2. tive ment. Upon this principle, it is inexpedient for ministers Criminato sanction the reception by Parliament of motions or charges petitions complaining of the judges, unless under cir- Parliacumstances which would justify enquiry into the matter of complaint, and where there is a bona fide intention of proceeding thereon. And it is the invariable practice of Parliament never to entertain criminative charges against anyone. except upon the ground of some distinct and definite basis. The charges preferred should be submitted to the consideration of the House in writing, whether it be intended to proceed by impeachment, by address for removal from office, or by committee, to enquire into the alleged misconduct, in order to afford full and suflicient opportunity for the person complained of to meet the accusations against him." sub judice. It is also highly irregular to bring into discussion, in Matters either House of Parliament, any matters, whether they relate to civil or criminal cases, which are undergoing judicial investigation, or are about to be submitted to courts of law; as it leads to the imputation of a desire to interfere with the ordinary course of justice." This observation applies with additional force to the House of Lords, which, being itself the highest court of judicature, should carefully refrain from prematurely and prejudicially discussing the merits of a case that has been assigned, by law, to the consideration of another tribunal. If, upon grounds of public policy, it should m Disraeli, Hans. D. v. 223, p. 463. Atty.-Gen. Baggallay, Ib. v. 225, p. 90. Post, v. 2. "Case of the Bishop of Bath and Wells, 1852. Hans. D. v. 122, pp. 465, 613, 948-953. Case of Ch. Just. Monahan. Hans. D. v. 163, pp. 823, 898, 984; and again, Ib. v. 178, p. 196. See Mr. Wynn's observations in Parl. D. N.S. v. 13, p. 1249. Rpt. Sel. Comm. on Corrupt Practices. Com. Pap. 1870, v. 6, p. 17. Mirl. of Parl. 1831, pp. 239, 523. Hans. D. v. 164, p. 566; v.. P Mir. of Parl. 1831-2, p. 1161. 1831, p. 523; Conduct not to be lightly impugned. be expedient to institute a debate on a question of this kind; the House should nevertheless refrain from asking for papers to be laid before them, in any case that is waiting for trial or undergoing judicial investigation." Furthermore, it is not customary to communicate to Parliament the evidence adduced in trials before the ordinary legal tribunals, unless some special reasons should justify the calling in question of any portion of their proceedings. Complaints to Parliament in respect to the conduct of judges of the judiciary, or the decisions of courts of justice, should not be lightly entertained. If there is a failure in the administration of justice, from whatever cause, affecting any judge, both Houses of Parliament may address the crown, to remove that judge from office.'s But nothing could be more injurious to the administration of justice than that the House of Commons should take upon itself the duties of a court of review of the proceedings of an ordinary court of law;' or of the decisions of a competent legal tribunal,-or, that it should tamper with the question whether the judges are on this or that particular assailable,' and endeavour 'to inflict upon them a minor punishment by subjecting their official conduct to hostile criticism. Parliament should abstain from all interference with the judiciary, Interfer except in cases of such gross perversion of the law, either by intention, corruption, or incapacity, as make it necessary for the House to exercise the power vested in it of advising the crown for the removal of the judge.'" The proper proceedings in such a case are explained in a ence with prosecutions. p. 757; Ib. v. 224, p. 585; v. 226, p. 561; v. 228, p. 965; v. 234, p. 1558. "Ld. Palmerston, Hans. D. v. 140, p. 1561; Sir R. Peel's speeches in the case of Baron Smith, Mir. of Parl. 1834, pp. 132, 312; and debate on Dr. Kenealy's motion in regard to trial of Queen v. Castro. |