THE INDEPENDENCE OF THE JUDICIARY W. R. LEDERMAN Halifax , III. Status ofSuperior Court Judges in Colonial North America (a) Before the American Revolution The seventeenth and eighteenth centuries saw extensive settlement and development of the American colonies under British auspices. It was at the beginning of the eighteenth century, when principles of colonial government were already rather well defined, that the Act of Settlement in England provided that judges' commissions should be made quamdiu se bene gesserint and their salaries as- certained and established. Looking back, one rather expects to find that this statutory guarantee would have taken effect con- temporaneously in overseas territories as well as in Britain. British settlers were deemed to take with them to colonies ac- quired by settlement most of the common law of -England and so much of the total body of English statute law as was applicable in the early days of the colony concerned to conditions in the New World. In addition, there was always the over-riding legislative supremacy of the Imperial Parliament. That body could at any time legislate for the colonies by statutes made applicable to them expressly or by necessary intendment. 1os Why would not one or the other of these principles of Imperial constitutional law transport the seventh paragraph of the third section of the Act of Settlement to the New World? Certainly the first two sections of the statute were expressly applicable in all British territories, determining as they did (and still do) the suc- cession to the throne. The fourth and last section looks applicable overseas by necessary intendment, and the same comment seems appropriate concerning at least some of the paragraphs of the third section other than the one about the judges. Finally, the *The first two parts of this article appeared in the issue of the Review for August-September 1956, pages 769-809. 101 See J. E. Read, The Early Provincial Constitutions (1948), 26 Can. Bar Rev. 621. 1140 THE CANADIAN BAR REVIEW [VOL . XXXIV seventh paragraph itself is not limited in its terms : it speaks only ofjudges' commissions in general. Nevertheless, this guarantee of judicial independence was confined in its application to the judges of the central courts of common law in London, and was thus severed from most other parts of the Act of Settlement for purposes of extension overseas. As a matter of legal and con- stitutional history, then, neither the rule of necessary intendment nor the rule of general suitability to early colonial conditions was considered to carry this paragraph of the Act of Settlement to the New World. In retrospect this seems anomalous, but the reasons lie in the original English conceptions of the basis of colonial government, and partly also in conditions in these early days in the colonies themselves. In the first place, provision for governmental institu- tions in overseas territories, even after 1688, was almost exclusively a preserve of the royal prerogative. True enough, after 1688, the supremacy of the Imperial Parliament over the royal prerogative could have been asserted at any time, but it was in fact late in the eighteenth century before this happened. The Quebec Act of 1774 was the first important parliamentary intervention to deter- mine the nature of a colonial government. Hence, before 1774, the accepted constitutional position was that full power and respon- sibility to prescribe the nature of colonial governmental institu- tions, including the judiciary, rested with the king. He proceeded with the advice and assistance of English ministers and appro- priate committees of the Imperial Privy Council, and the critical legal instruments were orders in council, royal proclamations, instructions to colonial governors, or other prerogative acts not requiring the concurrence or even the notice of the English Parlia- ment. It is true, though, that the representative assemblies in the colonies were permitted some influence. Frequently the Crown approved, or at least accepted, statutes of the American colonial assemblies establishing various courts for the colonies concern- ed. But the superiority of the royal prerogative remained and was asserted on several occasions by royal disallowance of colonial judicature statutes that were disapproved in London."' Thus it 'OIL. W. Labaree, Royal Government in America (Yale University Press, New Haven, 1930) p. 380. And see generally chapter IX on the administration of justice . Henceforth this work will be referred to as Labaree, followed by the page number. Apparently, even today, the normal rule in British colonies that have not attained full self-government is that judges' commissions run during pleasure only. See Terrell v. Colonial Secretary, [19531 2 All E.R . 490. Here, the claimant had been a judge of the Supreme Court of the Straits 1956] The Independence of the Judiciary 114 1 was natural for English law officers and privy councillors in the early eighteenth century to consider that the Parliament at West- minster was speaking only of English judges in the Act of Settle- ment and did not intend to take a hand in the details of colonial government. Parliament just did not concern itself with such de- tails of colonial government at this period. Hence the original prerogative power to issue judicial commissions during pleasure simply continued for colonial judges, untouched by the Act of Settlement . Moreover, this power was jealously guarded in Lon- don, as we shall see, by royal disallowance of colonial statutes that were inconsistent with judicial tenure during pleasure for the colonies concerned. Now we may turn briefly to a general picture of the judicial system that was established in the West Indies and colonial America by this uneasy collaboration between the Privy Council and the colonial governors, on the one hand, and the local as- semblies, on the other : The Governor, with the consent of his Council, could create courts ofjustice to administer the common law. It was generally assumed in the eighteenth century that he could create courts of equity-though the legality of the exercise of this power was perhaps more doubtful. But the power to create courts was also claimed by the Assemblies ; and Acts were passed to establish new courts. In some places the Governor, or the Governor and Council, acted as a court of Ex- chequer, as a court of probate, and as a court for matrimonial causes. In many colonies the Governor and Council were the highest court of appeal in the colony ; and sometimes the Governor or the Governor and Council sat as a court of Chancery, and administered an equitable jurisdiction .101 , Also, appeal lay in cases of sufficient impdrtance from the Gover- nor in Council to the Privy Council in London. The judges of Settlements . He alleged that he had been prematurely retired, and that this was contrary to the tenure during good behaviour he enjoyed because the 7th paragraph of the 3rd section of the Act of Settlement applied in Malaya . Lord Justice Goddard seems right in his conclusion that this provision did not apply in Malaya, but, with respect, he is wrong to sug- gest this was because of the "repeal" of this part of the Xct of Settlement by the English Statute Law Revision Act of 1881 (44 & 45 Vict., c. 59) . If the life-tenure provision of the Act of Settlement had been carried to Malaya by the rule of necessary intendment, the exception in the Statute Law Revision Act found in section 4(b) would have continued the life- tenure provision after 1881 in Malaya . On the other hand, if the life- tenure provision had been extended to Malaya before 1881 by the rule of general suitability, a later repeal in England would not have changed the law of Malaya. There are many examples of this in Canada's legal history . (For the restricted effect of the English Statute Law Revision Acts, see Halsbury's Statutes of England (2nd ed.) Vol . 24, p. 451 .) 101 Holdsworth, Vol. XI, p. 59. 1142 THE CANADIAN BAR REVIEW [VOL . XXXIV these colonial courts were usually appointed by the governor and his executive council as agents under the governor's commission and instructions to exercise the royal appointing power in this respect. The chief justice of a colony was often an exception to this ; frequently he was directly appointed at the instance of the Privy Council in London and also paid from London. In any event, with only a few anomalous exceptions, the tenure of office of all colonial judges, London-appointed or not, was during the royal pleasure only. In addition to the colonial courts proper, there was another group of courts directly and entirely under the control of the British government. "By commission from the Lords of the Ad miralty the Governor was given power to act as Vice-Admiral, and to appoint deputies to act as judges and officials of the vice- admiralty courts. In all, twelve such courts were established from New Hampshire and Massachusetts to Barbados." 101 These courts had the customary admiralty jurisdiction, which came to include enforcement of the hated Imperial Acts of Trade and revenue measures like the Stamp Act. Thus they became objects of intense hostility for the American colonists in the contest for power that marked this period. It is the implications of this contest for the judiciary that must now concern us. The eighteenth century in colonial America witnessed a great constitutional struggle strikingly similar to that of the seventeenth century in England. In America, too, the climax was revolution. The British governments concerned tried to insist on the widest scope for the royal prerogative as a means of detailed control from London, but in opposition the colonists insisted on their ancient common-law rights as Englishmen and on a major part of governmental control for their representative assemblies.