Limits of tary inter position. b of exercising a superintending control over the manner in which they discharge their duties, and to institute enquiries relative thereto.' '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.' C But in the discharge of these high inquisitorial functions, parliamen- Parliament has prescribed for itself certain 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 guard against the intrusion of party influences in any proceedings of Parliament in matters affecting the administration of the law. Crimina tive charges in Parliament. It is, in the first place, 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 sufficient oppor b Hans. Deb. (3) vol. lxvii. p. 1006. See the discussions in both Houses of Parliament in regard to the fitness of Chief Justice Lefroy to continue to preside over the Court of Queen's Bench in Ireland, when over ninety years of age. (Ibid. vol. clxxxii. p. 1629; vol. clxxxiii. pp. 353, 778.) His lordship resigned his seat on the bench very soon afterwards, when the Derby administration took office. (Ibid. vol. clxxxiv. p. 835.) Lord Chancellor Campbell, Hans. Deb. vol. clxiii. p. 824. See informal discussions in the House of Commons on certain expressions used by an Irish Judge in open court. (Mirror of Parl. 1833, pp. 3925-3927, and Hans. Deb. vol. clxxviii. p. 196.) Enquiry respecting the language and demeanour of a Vice Chancellor, in open court, in a recent case. (Hans. Deb. vol. clxxii. p. 871.) Enquiry respecting the undue severity of certain sentences passed by the Dy. Asst. Judge of the Middlesex Sessions. (Ibid. vol. clxxv. p. 1061.) See a debate in the House of Lords, on May 28, 1866, in regard to undue severity alleged to have been exercised by the local government of Bombay towards one of the judges of the Court of Small Causes therein, whose conduct on the bench had been complained of by a solicitor of the court. tunity for the person complained of to meet the accusations against him." It is also highly irregular to bring into discussion, in Matters either House of Parliament, any matters, whether they sub judice. relate to civil or criminal cases, which are undergoing judicial investigation, or are about to be submitted to 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 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." to be impugned. Complaints to Parliament in respect to the conduct of Conduct of the judiciary, or the decisions of courts of justice, should judges not not be lightly entertained. If there is a failure in the lightly administration of justice, from whatever cause, affecting any judge, both Houses of Parliament may address the crown, to remove that judge from office.' But it has been well remarked, by Lord Palmerston, that nothing could be more injurious to the administration of justice than that the House of Commons should take upon itself Case of the Bishop of Bath and Wells, 1852. Hans. Deb. vol. cxxii. pp. 465, 613, 948-953. Case of Chief Justice Monahan. Hans. Deb. (H. of Lords) June 10, 11, and 13, 1861; and again, Ibid. vol. clxxviii. p. 196; and see Mr. Wynn's observations in Parl. Deb. N. S. vol. xiii. p. 1249. Mirror of Parl. 1831, pp. 239, 523. Hans. Deb. vol. clxiv. p. 566; vol. clxv. p. 135; vol. clxvi. p. 109. Case of the seizure of the 'Alexandra,' Ibid. vol. clxx. p. 709. Parliament Mirror of Parl. 1831, p. 523. 8 Case of the so-called' Confederate Rams.' Hans. Deb. vol. clxxiii. p. 965. Secretary Sir G. Grey, ibid. vol. clxxxiii. p. 793. the duties of a court of review of the proceedings of an ordinary court of law; it should only interpose 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 an extreme case will claim our consideration in a future chapter. Bribery By the Act 26 Vict. c. 29, section 9, the duty of conpractices. sidering a report from an election committee (when the House have ordered the evidence to be printed) or from a royal commission, charging certain persons with bribery or treating, is assigned to the Attorney-General, who is empowered, at his discretion, to institute the necessary proceedings against the offending parties. In proceedings, in cases of bribery, and other misconduct arising out of parliamentary elections, it has been usual for the House of Commons to take the initiative, and to order the Attorney-General to prosecute the offenders. When that officer is about himself to institute a prosecution And other against individuals for offences against the purity of indictable offences. election, under the statute, constitutional usage has permitted the House to interpose with an address to the crown, praying that such a prosecution may be relinquished.' But in other cases, where there is ground for believing, from investigations of parliamentary committees, that indictable offences have been committed, the initiative in criminal proceedings should be left to the executive government." And even in matters arising out of parliamentary elections, the House has no right to con 1 Hans. Deb. vol. cxl. p. 1561; and see Sir R. Peel's speeches in the case of Baron Smith, Mirror of Parl. 1834, pp. 132, 312. J See Hans. Deb. vol. clxxi. p. 1048; 1bid. vol. clxxxiii. p. 1460. See the principles which should govern the House in ordering such prosecutions, as laid down by Mr. Wynn, in Mirror of Parl. 1841, pp. 2277-2282; and see Hans. Deb. vol. lxiii. pp. 819-843, vol. cxxvi. p. 1051. Commons Journals, vol. lxxxvi. p. 779. 1756. Hans. Deb. vol. clviii. pp. 1752 m Case of the Directors, &c. of the West Hartlepool Harbour and Railway Company. Hans. Deb. vol. clxxi. pp. 1294-1302. stitute itself into a court of appeal from any description of judicial authority,' or to interfere, by resolution, with the course of judicial proceedings." Otherwise, it would be impossible to avoid the suspicion that the administration of justice had been encroached upon for political purposes. tion to be Parlia Parliament, however, has a right to demand full infor- Informamation upon all matters affecting the administration of laid before justice, and papers on this subject, when moved for, are ment. usually granted as a matter of course; unless the application be made with a view to an irregular and unconstitutional interference with the ordinary course of law." tial But it is not the practice of either House of Parliament, Confidenas a general rule, to ask for copies of legal opinions given communiby the law officers of the crown to the executive govern- cations. vernment (or furnished to a public corporation "), nor is it customary for government to lay them before Parliament should they be applied for. They are considered confidential communications. The like rule applies with respect to communications between law officers of the crown concerning particular trials; or the judge's notes taken at a trial; or coroners' notes, which, as they partake of a judicial character, can only be produced with the consent of the officer himself. Opinions given by Hans. Deb. vol. clviii. p. 1752; vol. clix. pp. 145, 201. Mirror of Parl. 1837, p. 2182. Hans. Deb. vol. clxv. pp. 372, 543. ▸ Hans. Deb. vol. cii. p. 1169. Mirror of Parl. 1830, pp. 387, 1877-1879; 1840, p. 2120. Hans. Deb. vol. lxxiv. p. 568; Ibid. vol. clxi. p. 542; Ibid. vol. clxix. pp. 13281393. A similar doctrine was laid down in Lower Canada, as appears by the reply of his Excy. Governor Gosford, to an address of the House of Assembly, on December 11, 1835, for copies of legal opinions, wherein he states that such communications were 'confidential;' and, except in peculiar cases, should be held sacred.' See a case in which, under peculiar circumstances, an opinion was presented to Parliament, the law officer himself acquiescing therein. Mirror of Parl. 1831, p. 2111, and see Hans. Deb. vol. clxxxiv. p. 49. It is not even usual for a minister to state to the House the substance of an opinion given by the crown law officers; though this may be done at the discretion of the government Hans. Deb. vol. clxxii. pp. 250, 434. Mirror of Parl. 1830, pp. 527, 1667-1688. In another case, howover, copies of 'judges' notes ordered. Ibid. 1834, p. 1243; but see Hans. Deb. vol. clxxi. p. 809. t were Mirror of Parl. 1841, p. 2207. judges to the government on a bill pending in parliament ought not to be produced for the purpose of influencing the House in its legislative capacity, or to form the groundwork of legislative enactment." The duty of Parliament in reference to abuses which may occur in the administration of justice, will receive Precedents further illustration from the following precedents. Preroga On July 17, 1828, Mr. Hume presented to the House of Commons a petition complaining of abuses in the Prerogative Court, and tive Court. especially of the misconduct and malversation in office of the presiding judge. He went into a detailed account of the alleged abuses, and concluded by remarking that it was doubtful whether the government should not themselves institute an enquiry therein, in preference to an investigation by a committee of the House. During the debate which ensued, it was shown that the charges in the petition were destitute of foundation, whereupon the motion that the petition do lie on the table was negatived. On the following day, upon motion of Mr. Hume, a return of the amount of fees allowed and received in this court, during certain periods, was ordered, with a view to determine the existence of certain of the abuses attributed to the officers of the court." Police Baron On June 27, 1833, a petition was presented to the House of Commons from the inhabitants of two villages near London, complaining of the employment of the Metropolitan Police Force as spies, and asking protection against the evils resulting from such a practice. The petition was referred to a select committee, which on August 6 reported to the House three resolutions, declaring that the conduct of a certain policeman named Popay had been deserving of most grave and decided censure;' also, 'solemnly deprecating any approach to the employment of spies, in the ordinary acceptation of the term, as a practice most abhorrent to the feelings of the people, and most alien to the spirit of the constitution.’× On February 13, 1834, Mr. Daniel O'Connell brought before the House of Commons a complaint against Sir William Smith, one of the barons of the Court of Exchequer in Ireland, for 'neglect of duty as a judge, and for the introduction of political topics in his charges to grand juries. In proof of these accusations, he quoted from various returns on the table of the House, and from certain of the judge's charges; and concluded by moving that a select committee be appointed to enquire into the conduct of Mr. Baron Mirror of Parl. 1833, p. 2559. ▾ Ibid. 1828, pp. 2584-2597. Ibid. p. 2623. Commons Journals, 1833, pp. 537, 641. Commons Papers, 1833, vol. xiii. p. 401. |