CHAP. XXXIV "ACT OF STATE" 317 policy of Anglo-Saxon communities, for upwards of a century, to be very sparing in grants of indemnity, and to insist rigidly upon the observance of the law by officials and private citizens alike. The plea of " act of state can now in England practically only be used against an alien suitor, and even as against aliens the plea is regarded with just suspicion.1 1 The author had hoped, before going to press, to be able to refer to the decision in the case of Ah Toy v. Musgrove, recently decided by the Judicial Committee of the Privy Council. As, however, the official report of the decision has not yet appeared, he must content himself with saying, that the cabled messages respecting it seem to confirm the view, expressed above, that the plea of "act of state " I may in some cases be used against aliens. The more important point, with respect to the general prerogative powers of Colonial Ministers, was not, apparently, decided. 3. JUDICIARY CHAPTER XXXV THE SUPREME COURT WE have already discussed somewhat fully the constitution and powers of the Supreme Court, established by the Act of 1852,1 and as these constitution and powers remain substantially unaltered by more recent legislation, it will be possible to deal with them briefly in this place. The number of the judges of the Supreme Court has been increased to six (including the Chief-Justice), but the additional salaries thus necessitated have not been included in the Civil List, which is therefore inadequate to provide more than a part of the expenses of the staff. The balance is guaranteed by permanent appropriation under a colonial statute.2 By a liberal construction of the 37th section of the Constitution Act, the judges of the Supreme Court are appointed by the Governor in Council, but their commissions are, by the 38th section, to run during good behaviour. As a question which is of no practical importance, but of some little theoretical interest, it appears that there are three ways by which a judge of the Supreme Court can be temporarily or permanently removed from office 1. By Her Majesty, for misbehaviour. This power is implied in the grant of the commission, but under present circumstances it could hardly be exercised without raising great constitutional difficulties. 2. By the Governor, upon the address of both Houses of the Legislature (apparently without reason assigned).3 1 Ante, pp. 174-176. 2 Supreme Court Act 1890, § 15. 3 Constitution Act, § 38. CHAP. XXXV PHASES OF THE SUPREME COURT 319 3. By the Governor in Council, as a temporary measure, until Her Majesty's pleasure be known, upon the wilful absence without reasonable cause, incapacity, or neglect on the part of the judge. (During such temporary suspension a locum tenens may be appointed by the Governor in Council).1 Moreover, a judge of the Supreme Court, ipso facto, vacates his office if he accepts any other office or place of profit in Victoria, unless granted to him under the royal sign-manual, or unless it be the office of judge of the Vice-Admiralty Court.2 But a demise of the Crown does not affect his commission.3 The jurisdiction of the court remains as fixed by the Act of 1852, but the manner of its exercise has been modified in some important particulars. Practically the court now sits in the following capacities— 4 1. As the "Full Court," which must consist of at least three judges. This court hears all appellate business, and business in the nature of appeals, as well as all trials at bar, and certain matters specially allotted to it. It sits without a jury. The decision of the court is in accordance with the opinion of the majority, and, if the court is equally divided, the opinion of the Chief-Justice, or, if he be not present, of the senior judge present, decides the matter." 2. As an Ordinary Court of First Instance, when it may be represented by a single judge in all cases, except those in which two or more judges are specially required by statute." In this capacity the Supreme Court sits, not only in Melbourne, but in eighteen other places specified by statute, and distributed amongst the six bailiwicks which now replace the old circuit districts. Strictly speaking, there are now no such things as "Assizes," with specially constituted Commissioners, but the judges of the Supreme Court hold sittings of the court in the various centres, on days appointed by the Governor in Council. For the purposes of sheriff's business, the colony is divided into six bailiwicks, each with its sheriff, but the central character of the jurisdiction of the Supreme Court is shown by the fact that all civil actions, except those for injury to im 1 Supreme Court Act 1890, §§ 13 and 14. 2 § 16. 3 Constitution Act, § 38. 4 Supreme Court Act, 1890, § 3, and see, e.g., the Marriage Act 1890, §§ 3, movables, or in cases specially provided for by statute,1 are transitory, i.e. non-local in their character.2 3. As a "Council of Judges," which must assemble at least once in every year on the summons of the Chief-Justice, and may be summoned at any time to an extraordinary meeting. The Council considers the operation of the Supreme Court Act 3 and the Rules of Court for the time being in force, and the working of the system of judicial machinery, and reports annually as to amendments which it deems advisable.* 4. As a Court for the making of rules of procedure. The authority of the Supreme Court in this, its legislative capacity, has been previously explained.5 Ordinary litigious procedure before the court is of two kinds, civil and criminal. Civil procedure, between subjects, is commenced by a writ of summons and conducted through pleading and trial to judgment and execution. A defendant may be arrested and held to bail on mesne process, if the plaintiff satisfies the court that there is reason to believe that he is about to withdraw from the jurisdiction, and that such withdrawal will tend to defeat the action. After final judgment, a party ordered to pay money may be committed to prison for a term not exceeding six months, if, in the opinion of a judge, he has contracted the liability fraudulently or recklessly, or has neglected to satisfy the judgment though able to do so, and is about to leave the colony without payment, or to change his place of abode for the purpose of avoiding payment." In the criminal business of the Supreme Court, proceedings may commence by indictment, presentment, information, or (where a coroner has jurisdiction) by inquest.8 But treason and misprisions of treason can be prosecuted by indictment 1 E.g. Marriage Act 1890, § 103. 2 Supreme Court Act 1890, § 41. The same rule applies also in many cases to criminal prosecutions (Crimes Act 1890, §§ 392-399). 3 Sic in Supreme Court Act 1890, § 33, but? whether the consolidated statute fairly represents the former law. 4 * § 33. 5 §§ 23 to 29. In addition to these functions, the members of the court sit in chambers to dispose of business of an administrative or routine character. 6 Supreme Court Act 1890, §§ 110, 111. 7 Imprisonment of Fraudulent Debtors Act 1890, §§ 3-13. obtain as to the judgments of County Courts (ibid. §§ 14-21). prisonment is here four months. Similar provisions 8 Crimes Act 1890, §§ 386, 390. These rules do not, of course, apply to offences punishable by summary jurisdiction. CHAP. XXXV CRIMINAL PROSECUTIONS 321 only. Indictment by a grand jury can, apparently, only be preferred upon the application of a law officer, except the alleged offender be a corporate body, or except it be sworn that there has been a miscarriage of justice.2 A presentment is an accusation by a law officer or a Crown Prosecutor in his name, and may be preferred either to the Supreme Court or to General Sessions.3 This is the usual method of bringing a prisoner to trial. An information is an accusation filed by the Attorney-General, or with his permission.* An inquest is the formal inquiry held by a coroner's jury in the case of sudden or suspicious death, or a destructive fire. If a coroner's jury returns a verdict against a person, the coroner may commit him to custody, or, in cases of manslaughter, or arson, may hold him to bail, and a coroner's commitment or bail after verdict is equivalent to that of a justice.? 8 5 No accused person may be charged any court fee in the conduct of his case. Upon a plea of "not guilty" he is put upon his trial before a jury, and is entitled to be defended by counsel. Moreover, it is the practice of the court to allow a prisoner, after a verdict of guilty has been pronounced, to make a personal statement in explanation or mitigation of his crime. But, after conviction for felony, the prisoner is civiliter mortuus, and can make no disposition of his property,10 which vests in a curator appointed by the Governor in Council," who, after payment of the costs of the prosecution, the convict's debts, and compensation to persons who have suffered by the criminal acts of the convict, may make an allowance for the support of the latter's wife and family, holding the balance for him upon his release.1 No conviction or attainder for treason or felony now works any forfeiture or escheat." 12 13 |