§ LORD CHELMSFORD
, in rising to call attention to the removal of two of the Judges of the Supreme Council of Justice of the Ionian Islands, and to move an Address for papers relative to the subject, said, though many months had elapsed since the occurrence of the transaction in question, he was desirous of bringing the subject under discussion, because the consequences of the removal attached, and would continue to attach, to the persons affected by it, and would probably have an injurious effect upon the Supreme Court of Judicature of the Ionian Islands. The abandonment of the Protectorate of the Islands, which, from the conversation of last night, he might be allowed to take for granted had been decided upon, might, in some degree, deprive this question of its importance; but whenever the tie which united us to those Islands should be severed, it 277 must be the wish of all not to leave behind us the recollection of having sanctioned any act of injustice, or of having approved of anything calculated to impair the efficiency of a Court pronounced by high authority to be one of the best and soundest parts of the Ionian institutions. The statement which he had to make related to two of the Judges of the Supreme Council, men of high character, and of great legal attainments, who had, for many years, faithfully performed their judicial functions, without the least suggestion of misconduct or incapacity. These gentlemen had been abruptly removed from the bench, in the month of September last, without any reason alleged, without even the slight courtesy of a previous warning, the first intimation of their dismissal having readied them through the columns of the Government Gazette, which announced the appointment of their successors, and the whole affair being so timed—whether intentionally or not was immaterial—that no complaint on the subject could possibly be heard in the British Parliament until many months had elapsed after the event. In order to make the matter understood, it would be necessary to trespass on their Lordships' attention with a short explanation of the peculiar character of the Ionian Constitution, as far as regarded the appointment to and removal from offices. The body intrusted with those functions was the Senate, the Executive of the Ionian States. The Senate was composed of a President and five Senators, all appointed by the Lord High Commissioner. No condition was annexed to the choice of President, except that he must be a natural-born noble of the Ionian Islands. He was appointed for a period of two years and a half, but was capable of re-appointment. As head of the Senate, the President had the initiative in all their proceedings, and had the privilege of a double vote. The five Senators were chosen, three of them by the Lord High Commissioner, out of the Legislative Assembly, and with regard to two there was scarcely any restriction upon his choice. Therefore, it was not too much to say, that with the power of the initiative possessed by the President, with his double vote, and with the votes of the two selected Senators, the Lord High Commissioner practically exercised complete control over the acts of the Senate. The Supreme Council of Justice, to which the attention of the House was to be particularly directed, con- 278 sisted of four Judges. Two of them were appointed by the protecting Power, and were generally English subjects sent out from this country; the two others were Ionian subjects, chosen by the Senate, with the approbation of the Lord High Commissioner. All the offices in the Islands, including the judicial, continued only during the existence of Parliament, which was chosen for a maximum term of five years. But with regard to the Judges, the constitutional charter provided, that though their term of office had expired, they should perform their duties until removed or re-appointed by the proper authority. It might appear extraordinary, that when the new constitution of the Islands was framed, no better security was provided for the administration of justice, and that the Judges should hold their offices by such a precarious tenure. The explanation might be found in the circumstances of the times. He might say it without offence, because it was matter of history, that at that period the character of the Ionian tribunals was not above suspicion, and it seemed to have been considered expedient that the Executive should have in reserve the power of removing Judges whose corruption might be notorious, but the legal proof of it extremely difficult. Happily, that state of things had passed away. By the introduction of English Judges, bringing with them English maxims and principles of justice, the character of the Court had been so elevated as to entitle his right hon. Friend (Mr. Gladstone), in the course of the important mission which he fulfilled during the Administration of his noble Friend (the Earl of Derby), to report that "the British as well as the Ionian Judges of this high Court are regarded with confidence and favour by the community at large." But this vicious theory of judicial appointment was corrected by practice. From the time of the passing of the constitutional charter, on the 2nd of May 1817, until the present day, as far as he had heard, there had been only one instance of the summary removal of any Judge of the Supreme Court. This occurred under the Lord High Commissionership of Lord Nugent, in 1834, when one of the English and the two Ionian Judges were removed. An appeal was made to the Secretary of State by the English Judge, and he was immediately reinstated; the Ionian Judges did not appeal, and, of course, there was no reversal of their dismissal. He believed 279 that Sir Henry Ward, when Lord High Commissioner, had made rather a sweeping removal of the Judges of the inferior courts; but that had no bearing upon the question, which referred entirely to the Judges of the Supreme Court. He believed he was entitled to say that practically they might consider that they held their offices during good behavour. There were other circumstances which might contribute to this impression. Pension Acts had been passed from time to time, and in the first, which applied to the Judges alone, the preamble recited that it was important to secure the permanence and stability of the judicial body; and accordingly the Legislature provided a pension for them, the minimum term of service to entitle them to it being twelve years. That was a pretty good indication of the opinion of the Legislature that, practically, the Judges were not liable to summary removal at the expiration of every five years. Subsequent Pension Acts ware passed applying to other offices as well as that of the Judges, and the Judges were compelled to contribute out of their salaries to those pension funds, the minimum term of service to entitle them to a pension being ten years. The attention of Mr. Gladstone, when Lord High Commissioner Extraordinary, was directed to this subject. The right hon. Gentleman was struck with the precarious independence of the Judges, and recommended to Her Majesty's Government, that, on the one hand, their salaries should be fixed by a permanent Act; and that, on the other, they should not be removed except upon the address of both Chambers. Whether the proceedings to which he desired to call their Lordships' attention were in the spirit of this recommendation, and were consistent with the usual practice or the just expectations of the Judges, their Lordships would have an opportunity of judging by the facts he was about to bring before them. They related to the removal in September last of two Judges of the Supreme Court, Sir Giorgio Marcoran, who had been a public servant for nearly fifty years, and Sir Anastasio Xidian, who had been in the public service for thirty-five years. They had been Members of the Supreme Council of Justice—Sir Giorgio Marcoran for twenty and Sir Anastasio Xidian for twelve or thirteen years. Sir Giorgio Marcoran was about seventy years of age, and in four or five months he would have been entitled to retire upon 280 the highest scale of pension. Both these Judges were held in the highest estimation by the inhabitants of the Ionian Islands, and by their colleagues in office. The Chief Judge of the Supreme Court, Sir Patrick Colquhoun, bore the highest testimony to the character and efficiency of these gentlemen, and two retired English Judges of the Court, now in this country, Sir James Reid and Mr. Blair, had written to him since he had given notice of his intention to bring the subject before their Lordships, to express their high appreciation of the talents, knowledge, and integrity of these gentlemen. These were the Judges of the Supreme Court, who in September last, without any notice, were dismissed from the bench. As he understood, the ordinary course in re-appointing the Judges of the Supreme Court was this—a week or ten days after the assembling of a new Parliament warrants were issued for the re-appointment of these functionaries. In the present case, the warrants ought to have been issued in March in last year; but month after month elapsed and they were not forthcoming, nor was it until the Chief Justice remonstrated with the Lord High Commissioner on the delay that he was told it was not the Lord High Commissioner's intention to issue the warrants until after the Assembly had risen. The Lord High Commissioner, however, expressed a high opinion of the character of these Judges, expressing his satisfaction at the harmony with which the Judges of the Supreme Court seemed to be acting together. He granted leave of absence to Sir Anastasio Xidian, at the same time requesting him to hold himself in readiness to return to the Supreme Court if anything arose which should render his presence necessary. He was afraid he must come to the conclusion that at this very time the Lord High Commissioner had made up his mind to remove these two Judges, because some delay took place in the departure of Sir Anastasio Xidian, and he was accidentally in the Island when an announcement appeared in the Gazette, by which he and his colleague were superseded and their successors appointed. Of their successors he would only say that they were both men of less experience than the Judges they displaced; it was rather unfortunate, too, that one of these gentlemen was a member of the Senate, which removed the two Judges in question and appointed 281 their successors. There was a hardship as to the time of their removal. It was the intention of Sir Giorgio Marcoran to have resigned his seat on the bench in a few months, when, as he had stated, he would have received the highest scale of pension. He now found himself discarded, and would only receive the pension which he might have claimed seven years ago, had he then retired, although he had contributed to the Pension Fund during the whole of that interval. Sir Anastasio Xidian had been in like manner entitled four years and a half ago to the pension he would now receive. These gentlemen naturally felt themselves disgraced in the eyes of their fellow-countrymen by their sudden dismissal, and they appealed to the Duke of Newcastle, but their appeal had been rejected. He was satisfied that all the circumstances could not have been communicated to the noble Duke, or else that there was something behind which had not been brought to his (Lord Chelms-ford's) knowledge, and which, if known, would give an entirely different complexion to the case. It was said that a perfectly legal right existed to remove these two Judges; but it was impossible such a course could be perfectly legal, unless from the notion of legality were removed all sense of equity and justice. His noble Friend (the Duke of Newcastle)said, that under existing circumstances, their removal was conducive to the public advantage. His noble Friend was, of course, aware of the nature of the existing circumstances; but they had never been communicated to the Judges who were removed, and he (Lord Chelmsford) could not conceive any public advantage which could outweigh the inconvenience and disadvantage of shaking the independence of the Judges of the Supreme Court, and of introducing a souse of insecurity into all the tribunals throughout the Islands. He did not believe that any allegation of misconduct would be charged against the Judges, because the noble Duke, on the application to him being renewed, said that he still adhered to his former determination, but he sent a letter to the Lord High Commissioner, in which he expressed apprehension lest the Judges should imagine that their long service had not been duly appreciated by Her Majesty's Government. This was but a scant acknowledgment of long and faithful service, and the only appreciation of that service by the Government, of which they were aware, was the 282 sanction given to their dismissal. If there were any charge against these two Judges, they were at least entitled to know it; and it', without; any accusation, they had been sacrificed to a political necessity, they might at least have been spared for a few months, until they attained that term of service which would have given them the pension to which they were equitably entitled. Even now, under the constitution, he believed the noble Duke had power to retrace the steps which had been taken, and to reinstate the Judges. He did not expect him to adopt any such course, nor would it, perhaps, be at all desirable; but he thought it would be quite possible for the noble Duke to give instructions to the Lord High Commissioner to advise the Legislative Assembly to supplement the pensions of these removed Judges by a vote. It was very possible—it was even extremely probable—that the Legislative Assembly would not agree to that proposal; but, at all events, it would be satisfactory to those gentlemen to know that their services had been properly appreciated, and that in their removal from office they lay under no stigma. Unless the noble Duke was able to introduce circumstances with which he was not acquainted, he thought he was entitled to ask, at his hands, for an explicit avowal that there had been no misconduct on the part of these Judges, who would thus be freed from unfavourable suspicion, and would not, for the remainder of their lives, be disgraced in the eyes of their countrymen. The noble and learned Lord concluded by moving—That an humble Address be presented to Her Majesty for, Copies or Extracts of Correspondence and Papers on the Subject of the Removal of Two of the Judges of the Supreme Council of Justice of the United States of the Ionian Islands.
§ THE DUKE OF NEWCASTLE
said, he was glad, though somewhat surprised, that his noble and learned Friend should have confined his observations entirely to one point—namely, the reasons why the Judges had not been re-appointed. At the outset of his speech, and still more distinctly at its close, his noble and learned Friend admitted that the act was perfectly legal; whereas he was fully aware, from the instructions which he received from the persons most interested, it had been denied by those gentlemen that the transaction was legal. The gist of the complaint made by the Judges was that their removal was in- 283 consistent, not merely with the practice, but with the letter of the constitution; and they distinctly asserted that the article which had reference to the re-appointment of public officers was inapplicable to the case of Judges. Had that point been raised, he should have been prepared to show that by the constitution of the Ionian Islands the Judges were removable, or rather that their non-reappointment at the end of the quinquennial period was distinctly contemplated. On that point the law was clear. The noble and learned Lord, however, admitting the legality of their removal from office, deprecated this particular provision in the constitution of the Ionian Islands as being calculated to render the Supreme Court of Jurisdiction less worthy of the confidence of the people, and as being a rule which probably had its origin in corrupt times and had fallen into desuetude. Whatever might have been the origin of the provision—whether it had grown out of any mistrust of the honesty or integrity of the Judges of that court—it had certainly continued in full operation, and he should be able to show that in its exercise by successive Secretaries of State down to the present time there had been no distinction between the Judges of the Supreme Court and any other Judges. The rule had not fallen into desuetude, for, as he could show by reference to the official records, at the end of every quinquennial period there had been instances of the non-reappointment of some or other of the Judges of the Ionian Islands, although not in every case of Judges of the Supreme Court. But to draw a distinction on ground of principle between these and other Judges would be as absurd as to say that the Acts of William III. and George III. in this country applied only to the Chief Justices of each court, and not to the Puisne Judges. He was not defending the principle of quinquennial appointments, which were, perhaps, if not a consequence, at any rate an accompaniment, of some of the evils attendant on the present constitution of the Ionian Islands. But the subject had been repeatedly brought forward and discussed at the instance of successive Lord High Commissioners and Secretaries of State. In the year 1838 there was a despatch from Sir Howard Douglas to Lord Glenelg which said—It was further recommended that the Judges should hold their appointment for life. By Article 13, chap. 1 (which treats of the general organization) all appointments terminate at the end of 284 a quinquennium, or upon a dissolution—a rule to which the Judges form no exception; and the change now proposed, if your Lordship sees expedient to approve it, might be effected either by inserting an excepting clause in favour of the Judges in the Article above cited, or by adding a declaratory article to the like effect in the present chapter on the judicial organization.Lord Glenelg, in replying to Sir Howard Douglas, said—The proposal of rendering the appointments of the Judges co-extensive with their lives, or rather with their good behaviour, appears to me to raise a doubtful question of considerable importance. The great principle of judicial independence is so universally acknowledged as the basis of government that any reasoning in its support would be superfluous. But that principle, as it is established in this country and in other free States, is qualified and protected from abuse by other principles of at least equal importance. Such especially are:—1st, the right of the representatives of the people to address the Crown for the removal of any Judge for imputed misconduct; 2nd, the right of the public at large freely to discuss the judicial administration; and 3rd, the right of a supreme tribunal, exempt from all reasonable suspicion of prejudice, to receive and to decide upon impeachments of the Judges. In countries where there is no popular representation, no freedom of the press, and no supreme tribunal commanding public confidence for the trial of impeachments, the independent tenure of the judicial office might not improbably create an arbitrary power much more formidable than any of which it could prevent or punish the abuse. It is a part of a general system of a free Constitutional Government; and when isolated and detached from other free institutions, would lose much of its value, and would probably undergo an entire change in its essential character. For these reasons I am not satisfied of the prudence of this part of the limited reform recommended, and I trust that so much of the measure will not be proposed for Her Majesty's sanction in any formal manner, until you shall have fully considered the objections to which it appears liable, and have reported the view which you may ultimately take of those objections.On receipt of that despatch Sir Howard Douglas wrote to Lord Glenelg, stating that the proposition for appointing the Judges for life would be rescinded in accordance with his Lordship's opinions, in which he entirely concurred. Sir Howard Douglas was not the only Lord High Commissioner who had approached this subject. Mr. Stuart Mackenzie proposed several alterations; and Lord Stanley, the Secretary of Slate, in communicating with him, referred to the Bill for extending the commission of the Judges for life, and expressed his disapproval of its provisions. The noble Lord directed the withdrawal of that Bill, the object of which was to abrogate the 13th section of the constitution, and to make the Judges hold their offices for life, and it was withdrawn. This state 285 of things continued until the time when he was first appointed to the Colonial Office, ten years ago, when he found in the office a despatch addressed to his predecessor by Sir Henry Ward, then Lord High Commissioner, stating that it was probable that a complaint would be made that certain Judges had not been re-appointed. Such a complaint was received from a Dr. Manessi, and that, like the present one, was founded on an allegation that the omission to appointment was an entirely unconstitutional act. He desired Sir Henry Ward to send him a list of all cases which had occurred since the commencement of the British Protectorate, in which Judges had not been re-appointed at the end of the quinquennium; and, in reply, he received a list which had been presented and laid before Parliament. [Lord CHELMSFORD: Of Judges of the Supreme Court?] There were cases of Judges of the Supreme Court not being re-appointed, but his argument was, that no distinction could be drawn between the Judges of one court and another. In the Parliament of the year 1823 thirty-eight Judges were removed; in. the third Parliament, nineteen; in the fourth, twenty-six; in the fifth Parliament, eight; in the sixth, thirteen; in the seventh, eighteen; in the eighth, thirteen; in the ninth, eleven; and in the tenth Parliament, in which the case to which he had just been referring arose, sixteen. In the despatch which enclosed this list Sir Henry Ward stated, that with reference to the last two Parliaments during which he had been Lord High Commissioner, he had distinguished cases of transfer and promotion from absolute removals, but that with reference to the previous Parliaments he had not been able to obtain information on which to make this distinction. In the ninth Parliament, of the eleven who were not re-appointed seven were absolutely removed, and not merely transferred; in the tenth Parliament there were four now appointments, the remainder of the sixteen were cases of transfer or resignation of Judges. His noble and learned Friend (Lord Chelmsford) had said that there was no instance of the removal of a Judge of the Supreme Court except that to which he had referred. Of course, as there were but four Judges of that court, the number of such cases must be small, and he was only surprised that there were so many as there were. There was one on the 1st March, 1823; one in March, 1833; three in 1834, two Ionians 286 and one Englishman; one in 1839; one in 1840; and one in 1850. His noble and learned Friend contended that one of the Judges would have been entitled to receive an increase of pension if he had remained in office five months longer. The actual time was ten months; but would it, he would ask, be desirable that the gentleman in question should be left in office for the time with a view simply to qualifying him for obtaining a larger pension? Such a course of proceeding would not, he felt assured, be tolerated in this country. His noble and learned Friend was, he thought, in dealing with the question, too much inclined to arrive at a conclusion upon it by the light of English experience and practice. There was, however, the widest difference between the position of Judges in the Ionian Islands and in this country. In England we were accustomed not to regard Judges as politicians—in fact, they generally ceased to be so the moment they occupied seats on the bench, and under no circumstances were they partisans. The very opposite was the case in the Ionian Islands—these Judges were not merely politicians, but partisans and leaders of parties; they were also subject to the greatest influence by local ties and relations, and it was clear, therefore, that it was a matter of great delicacy for either House of Parliament to raise a question in such a case as the present with respect to the judgment and discretion of the Lord High Commissioner. He must add that he himself had been placed by the speech of his noble and learned Friend in a very awkward position, so far as it urged upon him the necessity of assigning reasons for the removal of the two gentlemen to whom he referred. Their Lordships need not be alarmed lest he should be going to state—and he was sure that they would not believe him capable of insinuating what he would not state—anything that would reflect upon the moral character of those gentlemen; but he had stated fairly that which he believed in the despatch to which the noble and learned Lord had called attention. It was said, indeed, that he had given scant praise to the Judges; it was by no means his intention to do otherwise—it was to scant praise that he considered them entitled. He admitted their high talents; but it was fair to say that the Senate had formed a strong opinion to the effect that it would be conducive to the ends of justice that they should be removed. In that opinion the Lord High Commissioner concurred, 287 and he himself had felt it to be his duty to come to the same conclusion. It was not expedient, he might add, that the exercise of such powers, high and arbitrary as they were, as were committed to the Lord High Commissioner, should be looked upon merely as it operated in the punishment of an individual, to the exclusion of the consideration that it might be called for in the due fulfilment of a public trust; and if the Lord High Commissioner thought the removal of the gentlemen in question would confer a benefit on the community, he was entitled to give his assent to the adoption of a course specifically provided by the constitution. In the great empire of India a case occurred where one of the highest Judges was removed. The power of removal was exercised because it was conducive to the public interests; but no personal stigma necessarily attached to the person removed. An Order in Council for the removal was made, but the Judge was anxious to resign, with a view of practising at the Calcutta bar, and as it was felt that he had done nothing at variance with high moral character, a subsequent Order in Council was made reversing the first, and the gentleman did retire from the judgeship, and did resume his practice at the bar of Calcutta. It might be deduced from this example, that in the removal of Judges the condition of the people ought to be the first consideration, and that the fact of removal did not necessarily reflect any stigma on the character of the Judge. The abstract principle of the Ionian Constitution was that the Judges ceased to be Judges at the end of five years, and that their re-appointment was absolutely necessary, if they were to continue their functions. If the non-reappointment was at variance with the usual practice, it was in accordance with the constitution. The administration of justice was complained of, and it was felt by himself and by the Lord High Commissioner that a change was necessary, with a view to creating confidence in the minds of the people. He did not deny that, in one sense, political reasons had influence in the decision. Neither that House nor the general public in England were very capable of dealing with questions affecting the Ionian Islands. They very little understood the character of the people, or the constitution under which they lived. The general impression was that the Ionians were a turbulent, violent people, always struggling against any existing authority. He 288 believed that such was by no means the case. They were an amiable and docile people. They were easily led, but unfortunately also very easily misled; and they were a people who had been led, to their own great detriment, by a body of demagogues who had influenced their minds for their own party purposes. Administrative corruption was interwoven with all the traditions of the country and engrained in the very character of the people. But with whom had this corruption originated, and for what purposes had it been followed? No doubt there were separate bodies of demagogues, but he did not hesitate to say—strange as it might seem to some of their Lordships, and disagreeable as it might sound to some who listened to him—that the worst demagogues, and those who had misled the people the most, were those who professed to be fast friends of the protectorate of England. So long as they could fatten upon the protection, so long they continued to be the fast friends of England; but if any attempt were made to deprive them of the fruits of corruption—to deprive them of the means of misleading the people and obtaining power for impure and unfair purposes—they would identify themselves in practice and principle with those to whose opinions and views they were apparently most diametrically opposed. It was necessary to break up such a system before any good could be effected. These two Judges were not the only persons removed. Another gentleman was removed who occupied the position of Secretary of the Senate; and although he was surprised that his noble Friend had never alluded to his name, his removal stood upon almost identical grounds; and observations which applied to the one case would apply to the other except so far as the administration of justice was concerned. Last night it was admitted on both sides the House that in no respect were these Islands possessions of England, but that they were a trust confided to this country by Europe; and he thought their Lordships ought to consider what effect such discussions as these would have upon the Ionian people. It was said that the Judges had a right to know the reasons for their removal. To the best of his belief those gentlemen had never asked for the reasons. Any step taken, either by the Government or by the Lord High Commissioner, was usually attacked and impugned: the press in the Ionian Islands was one of the freeest in the world, and 289 was by no means unwilling to exercise its licence in reference to any act of the Government. But what had been the case in reference to these two Judges? Why, no complaint whatever had been made throughout the Islands of the act of the Lord High Commissioner. The only Ionian from whom he had had any communication on this subject was a relation of one of; these gentlemen, and the Lord High Commissioner stated that he had received no remonstrances whatever. Letters and articles, some not very fair and some absolutely false, had been printed in the English papers greatly condemning the course which had been taken; and although they had been translated into a Greek paper published at Trieste, so general was the acquiescence in the propriety of the change that the Ionian papers had not in any instance reprinted those articles. These gentlemen had had an opportunity of making their case known through the Ionian press and in other ways; but they had not done so. Instead of taking the course which had always been taken when any complaint was to be made, they had preferred to appeal to their Lordships' House, the authority of which on other occasions they had always repudiated. This very circumstance showed that the measure of the Lord High Commissioner was a proper one. Not only, however, was it a proper one, but he believed that it was wise and salutary; and he was convinced that if the negotiations which had been commenced with regard to the cession of the Ionian Islands should from any cause fail, we should reap the advantage of it in the greater confidence which would be created among the Ionian people, and in the conviction which would be felt that we were actuated solely by a desire for their good government.
§ THE EARL OF DERBY
My Lords, I am not surprised that the noble Duke has expressed himself as being under considerable difficulty in arguing the case that has been brought forward, because I am quite sure that in taking the line of argument he has followed, he has been doing the greatest possible violence as to his own feelings and to his own constitutional principles. The noble Duke has expressed surprise that my noble and learned Friend should have confined himself to the simple question of the removal of these Judges, under the circumstances of hardship that he has explained, and that my noble and learned Friend did not mix up with that 290 case that of another gentleman, the Secretary of the Senate, who was dismissed at the same time, without any reason assigned. I think that all your Lordships will see that with the object which my noble and learned Friend had in view, it would have been inexpedient and unwise to have mixed up two cases which, although they both involve considerable hardship to individuals, and a considerable stretch of arbitrary power on the part of the Government, stand upon an entirely different footing. The question which my noble and learned Friend raised, and which it is most important that the House should calmly and dispassionately consider, was this—whether the course which has been pursued with regard to these two Judges of the Supreme Court has not been one which violates maxims which this House, at all events, regards with the highest veneration. As to the Secretary of the Senate, he is a political officer, and was very probably dismissed for political causes—and possibly quite rightly dismissed, because although the Government may have been perfectly satisfied with his ability and integrity, they may have found, that from political causes they were unable to transmit business with him amicably, But a person of that kind was upon a totally different footing from that occupied by the highest Judges in the land—men, the very basis of whose authority and influence is that they are politically independent and irremovable from any political cause whatever, or upon any ground of public convenience or reputed public interest; and I must confess much surprise to have heard the noble Duke rather argue in favour of the doctrine that in the Ionian Islands it is for the public advantage that the Lord High Commissioner should, for reasons independent of their character, ability, and honesty, and even on political considerations, dismiss the Judges from their offices; that it is right and proper that he should exercise his power in the matter; and that the Secretary of State should sanction and approve the course which has been pursued. I say that this is entirely at variance, I know, with the feelings and disposition of the noble Duke and with principles that have been laid down by him with regard to the Judges of the colonial superior courts. I hope that I shall not, upon using the words "colonial courts," receive the entirely gratuitous information that the Ionian Islands are not a British colony; but if they are not a British colony, they are a place with re- 291 gard to which judicial independence, and purity, and judicial separation of the Judges from the politics of the day should be even more carefully and more rigorously maintained than in the colonies themselves; and for this reason, that the Lord High Commissioner, who exercises so large a power there, has over the Legislature of the Ionian Islands a much greater power than any Governor deputed by the Crown to exercise a delegated authority has over the legislature of his colony. I cannot see why we should not apply to the Ionian Islands as rigorously as to any other colony the principle of the political independence of the judicial bench. I believe that I have the good fortune to be able to refer to a very recent case which occurred in one of the colonies, and to cite the sound principle laid down by the noble Duke himself. I believe that the case I am about to cite occurred in one of our Australian colonies last year or the year before. A Judge of the Supreme Court laid down a certain doctrine, in consequence of which the whole colony was thrown into the greatest possible embarrassment; be refused to acknowledge as valid an Act of the Local Legislature until it had received the Royal Assent. I rather infer, from the correspondence, that the noble Duke's opinion was, and my own impression is, that the learned Judge had taken an erroneous view of his duties, and that he had proclaimed as illegal and of no force in law an Act which was perfectly valid and authoritative. But be that as it may, the refusal of the Judge to recognise the validity of the Act led to so much dissatisfaction and discontent that an Address was presented by the Legislature of the colony, praying for the dismissal of the Judge. The noble Duke had, I have no doubt, no inconsiderable amount of anxiety. I have no doubt he examined into the case most carefully and most conscientiously—and this was the view which he took of it in his despatch to Sir Dominic Daly—I hold the practical independence of the superior courts of a colony to be. …. among the links which bind together the colonial empire of Great Britain. It is of vital importance, not only to the colonies, but to all those who have dealings with them of whatever kind, and to the Imperial Government itself, that these courts should exercise their functions in entire independence, not only of the local Executive, but of the popular feelings which are, from time to time, reflected in the Legislature, or of any political party which may happen to be in the ascendant. And I consider that the principal guarantee of 292 this independence is to be found in the assurance that a Judge once appointed will not be displaced without the strongest reasonable concurrence of an authority wholly removed from all local or temporary influences. By the existing law of South Australia, I consider such an authority to be intrusted, and very properly intrusted, to Her Majesty, acting on the advice of Her Ministers in Great Britain; and I hold, that in dismissing a Judge in compliance with Addresses from a local Legislature, and in conformity with that law, the Queen is not performing a mere ministerial act, but adopting a grave responsibility which Her Majesty cannot be advised to incur without being satisfied that the dismissal is necessary and proper.The noble Duke laid down in that document the vital importance of the political independence of the Judges of the superior courts, and of the responsibility of the Secretary of State if he sanctioned an Act of the local Legislature founded upon political considerations; and I am not surprised that the noble Duke did feel himself in a condition of considerable difficulty when, in answer to the calm, temperate, and well-reasoned statement of my noble and learned Friend, he had to vindicate before your Lordships an exercise of highhanded authority such as is seldom experienced in the administration of affairs in this country. The noble Duke took great pains to argue that which my noble and learned Friend admitted—that according to the theory and constitution of the Ionian Islands it is in the power of the Lord High Commissioner—that is to say, acting through the Senate—to dismiss a Judge of the Supreme Court from his office. But in such a case it is necessary to go somewhat further than the mere theory and letter of the Constitution; we must give some weight to the practice of the Constitution, and to the way in which it has, at least since 1842, when the temporary arrangement as to the Judges was superseded by a permanent Act, been dealt with. Since that period, even although there may be a technical right to dismiss a Judge without reason assigned, that course has not been pursued, except in one instance, with regard to Judges of the Supreme Court. I venture to any there has been no case during recent times—at all events, no case since 1834—in which there has been a dismissal or non-reappointment of any Judge of the Supreme Court; and I do not understand the principle on which the noble Duke asserts that the Judges of the Supreme Court, a tribunal universally es-teemed and respected, are on the same footing as the interior Judges of the petty 293 courts. I do not wish to reflect on the merits of our police magistrates in this country; but will any man say that because they are Judges of inferior courts therefore they stand on the same footing as the Judges of the Court of Queen's Bench or the Court of Exchequer? There is a broad, plain, palpable distinction between the two—a distinction which the noble Duke is able fully to appreciate, although for the sake of his argument he felt it desirable to confound them. I was surprised to hear the noble Duke state, among the instances of Judges dismissed or superseded, four gentlemen whose dismissal the memorial represents as not Slaving been approved of by the Secretary of State for the Colonies, and who, as the memorial alleges, were restored to their offices, and continued to exercise their duties up to the present time, with the exception of one who died a year ago, and another who declined office and took a pension.
§ THE DUKE OF NEWCASTLE
They were not restored at the time, but have been reappointed since. They have been restored; but not in consequence of my disapproval of the conduct of Sir Henry Ward.
§ THE EARL OF DERBY
The question seems narrowed to this point:—According to the letter of the Constitution these Judges were certainly removable, but according to the practice of the Constitution they were practically irremovable They are contributors to a pension list, but they have not a right to receive a pension until after the expiration of twelve years. The fact of the establishment of that pension list, to which the Judges are forced contributors, is to my mind conclusive evidence that it was not intended that the Judges should go out of office at the end of the period of five years. I have heard with some surprise and more regret the course which the noble Duke thought proper to pursue with regard to those distinguished Judges to whom their colleagues have borne the highest testimony for their zeal and faithful discharge of their duties. These are the gentlemen who, for some political reason—which even the noble Duke expressly declares ought not to be taken into con- 294 sideration with regard to the Judges of the Supreme Court—upon some suggestion, some insinuation, with no charge made against them, no offer to allow them to vindicate themselves if there was a charge—are dismissed at a moment's warning, without the slightest amount of courtesy, and who actually learn their dismissal by reading in the Gazette the appointment of their successors. The noble Duke urges that at the end of the quinquennial period the Judges are liable to be superseded. Will be deny that the strongest remonstrances against the unparalleled delay which occurred in issuing the necessary warrant were addressed to the Lord High Commissioner, not by the two Judges themselves, but by the English Judges, their colleagues; who were naturally indignant at the course pursued? And what was the motive for the delay? It was found convenient that the warrant should not be issued till the Ionian Parliament had separated, and that led to a delay of three months, and then it was convenient that there should be no supersession till the English Parliament had risen, which led to a delay of two months longer, and consequently they had no opportunity of appealing to either the Ionian Parliament or the Parliament of Great Britain.
§ THE DUKE OF NEWCASTLE
It. is within my personal knowledge that the cause had no connection with the prorogation of the English Parliament. Besides, the Constitution gives the appeal, not to the English Parliament, but to the Secretary of State.
§ THE EARL OF DERBY
It is true that the appeal is to the Secretary of State in the first instance; but every British subject has the right of appeal from the decision of a Secretary of State to the British Parliament; and it is desirable that such appeal should be resorted to with the least possible delay. The noble Duke vindicates the dismissal of these most highly respected Judges on the ground that it was for the public advantage; from which we may infer that the political opinions of the Judges were not in accordance with those of the higher authorities; nay, rather more, that they considered them persons of dangerous tendency. But, if they were dangerous persons, why was it, that up to the last moment, they were kept in ignorance of their supersession? Up to the last moment Sir George Marcoran and Sir Anastasio Xidian were praised, lauded, pressed by 295 the Lord High Commissioner, on obtaining leave of absence, to be away as short a time as possible, lest important business should arise; and yet, before that very leave of absence had expired, the same Lord High Commissioner who so praised and so lauded them, so entreated their early return to their duties, bad determined on their dismissal, and was laying before the Secretary of State his opinion that they were dangerous persons. Is it possible to reconcile with any ordinary justice—I do not deny the technical right of the supersession—this keeping of the dismissal hanging over their heads without notice, to the last moment? I think, at all events, it was a straining of the powers of the Lord High Commissioner so to remove them without making a charge—without giving them an opportunity of defence. That is a course which it is impossible to vindicate, either by the spirit of the Ionian Constitution, or, still more, by the rules which prevail in this country. The noble Duke had offered something like an insinuation against these gentlemen, in what he said upon the remark of my noble and learned Friend upon the habitual corruption of officials in the Ionian Islands. But my noble and learned Friend alluded to the state of things which existed forty years since, and congratulated himself and the country that the period had long gone by. There was a constant train of evidence showing, that during the whole of the time these Judges sat on the bench there had not been the slightest imputation against their personal integrity, their ability, and the manner in which they discharged their duties. It is rather hard, then, that a dismissal, given without the slightest cause being assigned, to men of high character, should be palliated by the fact that forty years ago there was a suspicion of foul practice in the courts. If the Judges had been guilty of violation of duty, or suffered themselves to be led away from their duties as Judges—if they were dangerous men—if, by their conduct, they had caused well-founded discontent—it was due to them—it was due to justice itself—that the charge should have been early made against them, and that they should have had an opportunity of being heard in their own defence, and not dismissed in the first place, without the slightest cause assigned; nay, with the highest laudation of their demeanour as Judges. And now, after their dismissal, the Secretary of 296 State, in Parliament, vindicates the course taken by the Lord High Commissioner, by insinuating against them charges which have never been brought forward so that they might have an opportunity of vindicating themselves. I hope the noble Duke will not adhere to his determination of withholding the correspondence asked for. I do not ask for the correspondence between the Lord High Commissioner and the Senate, nor that between the Commissioner and those by whom he has been led or misled; but I say that we have a right to know the ground assigned by the Lord High Commissioner for a most unusual and high-handed stretch of power, and what are the grounds on which the Secretary of State is prepared to accept and adopt an Act which, I contend, the Queen could not adopt, even as a ministerial act, without being satisfied that the grounds of dismissal were just. I am perfectly satisfied, on the statement of my noble and learned Friend, and the statement of the Secretary of State, to leave the case of these gentlemen to the decision of the Parliament and the country. But, before I sit down, allow me to add one thing. We are now about to withdraw our protectorate from the Ionian Islands. Let not the last act done with regard to those islands be one which will cast suspicion upon our respect for the independence of the judicial bench, or our respect for the integrity of the judicial character; and let it not be said that we have ventured to adopt an arbitrary course with respect to the Supreme Court of States confided to our protection, a course which we never should have ventured to apply to any place which is, properly speaking, a portion of Her Majesty's dominions.
§ THE DUKE OF NEWCASTLE
explained that he had been quite misapprehended. He was quite prepared to give the papers, provided the usual words, "Copies or Extracts," were attached; and if the papers when produced did not give all the information that was required, it would be for Parliament to call for further particulars. The law of the Australian Colonies was on precisely the same footing as that of England with respect to the apointment of the Chief Justices and Puisne Judges; and the distinction which he had attempted to draw between the case of the Australian and Ionian Judges was, that what applied to one case could not apply to another, where the law was different. So far as political considerations entered into the 297 removal of the Judges, it was not, as the noble Earl seemed to suppose, because the political opinions of the Judges were at variance with those of the Lord High Commissioner that they were removed, but it was because the Judges had mixed themselves with the politics of the country at all. He entirely agreed with the Lord High Commissioner, that Judges should keep as clear of politics as possible.
THE LORD CHANCELLOR
said, he had not intended to take any part in the discussion, but he thought what had occurred rendered it right that he should say a few words upon a subject so interesting and important. He was happy to think that the subject had been introduced by the noble and learned Lord (Lord Chelmsford) in a speech as temperate as it was clear; and he was followed by the noble Earl in a speech full of that eloquence and ardour which distinguished his addresses on all occasions. But throughout the whole of those speeches words had been used and appeals made to sentiments and feelings which were very dear to the English mind, which wore associated with all that we held sacred and important, but which, in his opinion, were beside the subject before the House. The noble and learned Lord said frequently, and the noble Earl also repeated the phrase, that those Judges had been removed, dismissed, superseded under circumstances involving great hardship, if I not oppression, and had been condemned without the opportunity of being heard. The independence of the Judges was a matter about which every Englishman felt most jealous. But that feeling must not be carried too far. The feeling which we had with regard to our Constitution must not be carried along with us in the consideration of the circumstances applicable to other countries. But first, what were the facts? Why, those Judges had not been removed at all. It was incorrect to say that they had been either removed or dismissed. It had been admitted in one instance by the noble and learned Lord, that strictly speaking, they had not been removed; but through the whole of his argument, and through the address of the noble Earl, the appeal to the House was made altogether upon the grounds of the removal, which was assumed without any foundation at all. The Constitution of the Ionian Islands was of this nature—that two of the Judges should be appointed by the Senate, with the approbation of 298 the Lord High Commissioner, and they were appointed for a period of five years. Now, the arguments applicable to the irremovability of Judges were wholly inapplicable in the case of a people who started with this principle—that to their mind and according to their notion of Government, it was right and desirable that the Judges should have a temporary tenure of office, and not a permanent appointment. Originally, Judges were appointed in this country durante bene placito; now they were appointed quamdiu se bene gesserint. But in the Ionian Islands they were appointed for a fixed and definite term. He quite admitted that a Judge appointed durante, bene placito ought not to be dismissed unless a reason were given for his dismissal. If, however, the Judges held their offices under a Constitution which contemplated their appointment as temporary and definite, it would be an error to judge the action of that Constitution by prejudices and professions derived from the existence of a different state of things. Their Lordships were, in fact, asked to try the propriety of an Act of the Ionian Senate, which declined to re-appoint these gentlemen: the Lord High Commissioner approved that act of the Senate; and the Secretary of State, for reasons of State, approved the Act of the Lord High Commissioner. Their Lordships had heard the impassioned appeal of the noble Earl (the Earl of Derby), but he (the Lord Chancellor) must protest against this question being considered according to the constitutional views of this country. Could their Lordships be engaged in a more idle speculation than to apply and transfer English principles to a Constitution of a different kind? First of all, it would be necessary to condemn the Ionian Senate; and how was that body to be brought to their Lordships' bar? The Senate deemed it proper, and for the welfare of their country, that these gentlemen should not be re-appointed. They had run out their term of office, and it was left to the discretion of the Senate whether or not to re-appoint them. The noble Earl had appealed to the practice of the Ionian Senate, which had not failed to re-appoint the Judges for the last twenty-four years. But if, alter so long an interval, the Senate came to an opposite conclusion, ought not their Lordships rather to give them credit for having exercised their right prudently and wisely? No doubt their Lordships—and he did 299 not deny that such were his own feelings—would like to see a change in the Ionian judicature in regard to the dismissal of Judges, but it would be necessary, for this purpose, to alter the Constitution of the Ionian Islands; but so long as the power and privilege existed, their Lordships were not entitled to forbid the Senate to exercise their right. His noble Friend (the Duke of Newcastle) had asked—and he thought the circumstance ought to be conclusive—who had complained of this act of the Senate? Had there been a single complaint, except from the two gentlemen concerned? What their Lordships wanted to know was the cause which rendered it expedient for the Senate, the Lord High Commissioner, and the Secretary of State, in the first place, to take this step, and then to approve it. His noble Friend laboured under this difficulty:—That if he told their Lordships all the arguments and circumstances which led the Senate to act as they did, he might possibly heap upon these gentlemen a severe sentence of condemnation. The noble Duke had taken the better and more merciful part of stating that they had not been removed for any judicial fault or imputation on their moral character, but that they had been removed because they felt it their duty to act under the influence of certain political principles, which were felt by those who had charge of the Government of the Ionian Islands to be incompatible with the tranquillity of the country. Their Lordships, he repeated, had no right to deal with this question on the principles of the English Constitution when it was the Ionian Constitution under which the act had been done. They ought rather to give credit to the Ionian Senate for having exercised their judgment, not wilfully or perversely, but wisely and to the best of their ability. If their Lordships took any other view of this matter, their interference would be of a very mischievous character.
§ EARL GREY
said, he had listened to this debate with great regret, and this regret had been much increased by the speech to which he had just listened. He held that the principle of the administration of justice by Judges independent alike of popular clamour and executive power was at the very root of all good government. That principle was not less applicable to the Ionian Islands than to Great Britain. Their Lordships had been told that these 300 two Judges had not been removed, but that they held their places only for a time. The Lord Chancellor had answered the argument that the practice had been the other way by hinting that the Ionian Senate had doubtless now, after twenty-tour years, found a reason for getting rid of these Judges. That argument was, to his mind, very equivocal and unsatisfactory. While in office he himself had occasion to recommend to Her Majesty that Judges should be removed, but he regarded the principle of judicial independence as of such extreme importance that he never took that step without referring the questions connected with the conduct of the Judge to the Judicial Committee of the Privy Council. In a particular case, one of the moat distinguished Governors at that time in the service of the Crown complained, and with great reason, of the conduct of a Judge; and because the Crown refused to exercise its extreme prerogative in dismissing that Judge he resigned his office. Although the loss to the public service at the time was serious, he (Earl Grey) incurred it rather than depart from the principle that the conduct of a judicial functionary ought, in the first instance, to be thoroughly investigated before the Committee of the Privy Council. Technically and legally, the effect of not re appointing these Ionian Judges was the same as if they had been removed. The noble Duke (the Duke of Newcastle) said that their removal was of greater importance to the people of the Ionian Islands than the maintenance of the ordinary course of justice, the measure being, in fact, essential for that purpose. Unless it was capable of being thoroughly substantiated, this was a grave accusation to bring against two high functionaries. In former times there had been inefficient Judges in this country; but it had always been held better to submit to temporary inconvenience than to violate the great principle of judicial independence by the arbitrary removal of individuals. It bad been hinted that these judges were removed for political partisanship. That, if established, was a sufficient ground for the action of the Government, and it would have been a very proper course for the Lord High Commissioner to warn them, that if they presumed to act as partisans, the legal power of the Crown would be exerted to its fullest extent for their removal. But it was quite another thing to withhold all information, to refuse to state the grounds for not re-appointing them, to bring forward no direct charge in 301 Parliament, but to make insinuations which, if they had any meaning whatever, meant that they had been guilty of political misconduct. He knew something of the difficulties of government in the Ionian Inlands, and he believed that the greatest service, which England had it in her power to render to that dependency was to teach the people of those Islands, not only by precept but by example, respect for those high constitutional principles which were observed and respected in this country. The system of intrigue and corruption which had prevailed so deeply in the Ionian Islands could not be met by having recourse to similar artifices. British authority must take its stand on high constitutional principles; and if the Government could not he successfully administered from that level, the responsibility would rest on those who opposed it. A temporary exercise of the power of the Crown, not descending to intrigue, and avoiding any extraordinary and arbitrary use of the authority vested in the protecting Power, a straightforward and simple adherence to great principles of government, would, he was convinced, afford the best means of bringing about improvements in the state of the Ionian Islands. In the course which had been taken this wholesome rule of action had been departed from, and he had heard with regret the defence urged by men in the high position of the noble Duke and the noble and learned Lord on the Woolsack.
§ Motion agreed to.
§ House adjourned at Eight o'clock, to Monthly next, a quarter before Four o'clock.