enables us to execute this trust. We may, when we see cause of complaint, administer a remedy; it is in our choice by an Address to remove an improper judge; by impeachment before the Peers to pursue to destruction a corrupt judge; or by bill to assert, to explain, to enforce, or to reform the law, just as the occasion and necessity of the case shall guide us. We stand in a situation very honourable to ourselves and very useful to our country, if we do not abuse or abandon the trust that is placed in us.” Of the two former kinds of control mentioned in this passage the examples, in modern times at least, are very rare. Instances are indeed recorded in our earlier history of severe punishments inflicted upon judges for various forms of misconduct. But such a duty, when its performance is unhappily required, belongs exclusively to Parliament. Judges differ in one remarkable respect from other functionaries. No judge is liable to any proceedings, civil or criminal, before any ordinary tribunal for any act or omission in the execution of his judicial office. Except in two instances, the refusal of a writ of Habeas Corpus and the refusal of a Bill of Exception, or a false statement in support of such refusal,* no judge,† even though a wilful and corrupt design be distinctly alleged, can be drawn into question before any other judge for his official conduct. The only remedy, therefore, against a delinquent judge is by impeachment. It was for misconduct in his office as Chancellor that in the case of Lord Bacon this long-disused remedy was revived. The evil days of James the Second gave rise to several proceedings of this kind. But since the Revolution only one impeachment of a judicial functionary has taken place. In the reign of George the First Lord Chancellor Macclesfield was convicted of the * 3 Stephen's Commentaries, 615. + 12 Reports, 25. sale of offices and other misconduct in his court, and was heavily fined. So satisfactory has the general administration of justice become that during the same period Parliament has never found it necessary to exercise even the milder power that it possesses, the power of addressing the Crown to remove an unfit judge. Complaints have sometimes been made; and in two or three instances learned judges have prevented further proceedings by a timely resignation. Even in the case of the Colonial Bench, where the power of amotion is greater than in the United Kingdom, no instance of an amotion under the Acts which regulate this power* occurred until 1829.† The same gentleman who in that year raised in Canada a question upon these Acts followed with curious precision the precedent of his own case sixteen years afterwards in Australia. There was a case in 1847 § where the amotion of a judge in Tasmania was upheld; and another where the amotion of a judge at the Cape of Good Hope was set aside as frivolous. Some other cases, although not of special importance or of recent date, have occurred. But there has rarely been so large a body of men whose conduct during so long a period of time has been so free from blame as the judges of the British Crown. The third mode in which Parliament exercises a control over judicial proceedings is by the exercise of its legislative functions. So far as this action of Parliament relates to an avowed alteration of the law it requires no special notice. The Legislature, however, has occasionally aimed at something more; and has taken upon itself the duty not of * 22 Geo. III. c. 75, and 54 Geo. III. c. 61. + Per Lord Lyndhurst, Willis v. Gipps, 5 Moore, P. C. C. 388. + Ib., 379. § Montague v. Governor of V. D. Land, 6 Moore, 489. Cloete v. The Queen, 8 Moore, 484. * enacting what the law shall be, but of declaring what it is. A curious example is found in the famous Statute of Treason, which after defining a variety of treasons provides that if any other case of supposed treason should arise the justices shall not proceed to judgment "until the cause be showed and declared before the King and his Parliament whether it ought to be judged treason or other felony." This provision, however, related to the judicial character of the High Court of Parliament as it was at that time understood. A later, and perhaps a more pertinent, example is the case of Mr. Fox's Libel Act.† That measure had twenty years before it became law been introduced by Mr. Dowdeswell in the usual form of express enactment, but was lost because Lord Chatham insisted that its form should be declaratory. + Lord Campbell expresses his satisfaction that this Act was passed in a declaratory form. But whatever may be the political merits of that measure, it is too much to say that the uninterrupted course of judicial decisions for half a century did not amount to law. If Lord Mansfield's judgments were wrong, they could have been reversed. But Mr. Fox and his supporters, while they acquiesced in these decisions, not only altered the law but did so in such a manner as to intimate that these decisions had been erroneous. Declaratory enactments are proper when the object is to give a new promulgation of the Common Law or to explain any doubts as to the intention of the Legislature in any previous statute. So far as past transactions are concerned, a declaratory act can have no practical importance. It does not unmake the law which the judges pronounced; and its retrospective operation amounts merely to an expression of unauthoritative opinion. 25 Edw. III. St. 5, ch. 2. +32 Geo. III., c. 60. § 3. In the struggle in which James the Second sought to recover his lost crown, the city of Londonderry became The control a position of considerable military importance. by Parliament Its charge had been entrusted to Colonel of the Execu tive. Lundy. Upon the approach of the French and Irish forces, the governor showed such incapacity, if it were not treachery, that the besieged citizens were forced to depose him, and by their unaided efforts to defend their walls. The House of Commons in 1689 appointed a committee of inquiry into the miscarriages of the Irish war, and especially the delay in the relief of Londonderry. Their investigation resulted in a request to the King that Colonel Lundy should be sent to England to be tried for the treason with which he was charged. Mr. Hallam observes* that this is the earliest precedent in the journals of the House of Commons for so specific an inquiry into the conduct of a public officer, especially one in military command. Since that time, however, the right has been repeatedly exercised. The power to compel the attendance of witnesses and the production of records and other documents is incidental to this right of inquiry, and is enforced by the aid of Parliamentary Privilege. But, besides this power of inquiry, it is the right and the duty of the Houses of Parliament to advise the King upon the exercise of every branch of his prerogative. Concerning the declaration of war or the conclusion of peace,† concerning the appointment, the retention, or the dismission of servants of the Crown, concerning the conduct of such servants in the discharge of their official duties, concerning the dissolution of Parliament, concerning the bestowal of marks of Royal favour, concerning all matters relating to revenue and to the expenditure of revenue, concerning all matters relating to trade, in a word concerning every subject of public interest, the House of Commons from time to time as occasion may require tenders its advice to the Crown, and seldom fails to obtain a gracious allowance. It was during the great Parliamentary contest of 1784, to which I shall presently more fully refer, and which gave rise to discussions upon many points of Constitutional Law, that this superintending power of either House of Parliament was for the last time seriously disputed. By an Act of Parliament the Directors of the East Indian Company were restrained from the acceptance of bills drawn from India beyond a certain amount, without the consent of the Commissioners of the Treasury. It was found that bills to the amount of two and a half millions sterling had been drawn upon the Company by their servants, and that it was expected that other bills to the amount of upwards of two millions would soon arrive.* At the same time the affairs of the Company were notoriously unsatisfactory. Accordingly the House of Commons resolved that the Lords of the Treasury ought not to give their consent to the acceptance of any bills drawn from India until the House should be satisfied that sufficient means could be provided for their payment, or until the House should otherwise direct. Lords, who were prepared to support the Crown in the struggle which was then raging, took the occasion of this resolution to assail the proceedings of the Commons. They accordingly passed a resolution denouncing as unconstitutional "an attempt of any branch of the Legislature to suspend the execution of law by separately assuming to itself the direction of a discretionary power which by Act of Parliament is vested in any body of men to be exercised as they shall think expedient." The House of Commons The |