PUBLIC RECORD OFFICE
Reference
PLC.O. 885
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
14 PUBLIC RECORD OFFICE, LONDON
C.O., 14 Feb. 1898.
28 Feb. 1893. C.O., 21 March, 1993.
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the House of Assembly, calling the attention of the Secretary of State to the decision of the Judicial Committee, to the remarks of the Lord Chancellor upon Mr. Yelverton's Notes by the Chief Justice." and to his letter to "Truth," and expressing their opinion that the return of Mr. Yelverton to the Bahamas as Chief Justice would be vitally detrimental to the public welfare, and urging upon your Lordship the grave inexpediency of permitting him to resume the duties of Chief Justice.
That Mr Wingfield was also to transmit to us correspondenco with Mr. Yelverton, Mr. Yelverton, subsequent to the report of the Judicial Committee, from which it would be seen that, by your Lordship's direction, suggestions had been made to him in the first instance that he should resign the office of Chief Justice of the Bahamas, and secondly that it Mr. Yelverton, should be referred to a Committee of the Privy Council to determine whether, under the circumstances, he could be permitted to retain that office, but that he had not accepted either of those suggestions.
97 March 1893.
That as then advised your Lordship did not think it possible with a due regard to the interests of justice that Mr. Yelverton should be allowed to continue to fill the office of Chief Justice of the Bahamas, and that you were not prepared, after what had occurred, to offer him employment in another Colony. That your Lordship therefore found it necessary to consider in what manner the question of his removal could be dealt with.
That with regard to the modes of removal of Colonial Judges, Mr. Wingfield was to refer us to the memorandum explaining the views of the Judicial Committee on the subject, which was laid before Parliament in 1870 in the paper (C. 139 of 1870), and to the memorandum by the late Lord Blachford (then Sir Freileric Rogers) included in the same paper.
That a Colonial Judge might be removed either (1) (if appointed by Patent) by "amotion" un·ler Burke's Act (22 Geo. III. c. 75) by the Governor and Council subject to an appeal to the Privy Council; or (2) by suspension by the Governor under the power conferred upon him by his Commission, and the Letters Patent constituting his office exercised, after taking the advice of his Executive Council, in the manner pre- scribed by the Royal Instructions and by Chapter IV. section 2 of the Colonial Regulations, and the confirmation of such suspension by the Queen; or (3) by the Queen on the application of the legislative body or bodies of the Colony, either by address or by petition.
That in the case of the suspension of a Judge the Secretary of State had generally advised the Queen to refer the question of confirming the suspension to a Committeo of the Privy Council.
That in the case of an Address or Petition from a colonial legislature for the removal of a judge the matter had usually been referred to the Judicial Committee, but that your Lordship apprehended that, as in the case of suspension, the reference might be made to a Committee of the Council generally
That the Statutes of the Bahamas contained no provision declaring the nature of the tenure of the office of Chief Justice; that clause 9 of the Letters Patent constituting the office of Governor declared all judges and other officers appointed by the Governor under it, should hold their offices during the Queen's pleasure; that Mr. Yelverton was so appointed.
That for the reasons stated in the Memorandum of the Judicial Committee of 1870, it was considered generally preferable that proceedings for the removal of a Judge should be taken in the first instance in the Colony, either under Burke's Act, or by way of suspension, rather than by an immediate reference to the Privy Council, but that in Mr. Yelverton's case there were obvions objections to the former course.
That looking to the conflict in which Mr. Yolverton had been engaged with the Governor and the members of the Executive Council of the Colony, all of whom were also members of one or other of the branches of the Colonial Legislature which had passed the resolution deprecating his resumption of the duties of Chief Justice, it appeared to your Lordship that it was undesirable, even in Mr. Yelverton's own interest, that the Governor and Executive Council should be the tribunal to try in the first instance the question of his removal or suspension, and that it would be prefer- able, if practicable, that the alternative course should be adopted of referring the matter to a Committee of the Privy Council. That such a Committee might be constituted of the same persons who formed the Judicial Committee in the contempt of court case, and who were, therefore, conversant with the facts of that case.
That before such a reference could be made (except with the concurrence of the Chief Justice) it would appear to be necessary that an Address or Petition for his removal should be presented by the Colonial Legislature, unless the resolution already
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passed by the Legislative Council and House of Assembly could be regarded as suffi- cient for the purpose. That looking to the terms of that resolution it appeared probable that the Council and Assembly would be prepared to vote such an Address or l'etition
That Mr. Wingfield was to request that we would advise your Lordship
(1.) What course of procedure should be adopted for raising and determining the question whether Mr."Yelverton should be removed from the Office of Chief Justice of the Bahamas.
(2.) Whether that question could properly be referred (a) to the Judicial Committee, or (b) to a Committee of the Privy Council, without any proceeding in the Colony for the amotion of Mr. Yelverton by the Governor in Council, or for his suspension by the Governor.
(3.) Whether. in view of the Legislative Council and House of Assembly of the Bahamas having passed the resolution above referred to, such a reference could be made without an Address or Petition to the Queen for Mr. Yelver- ton's removal being presented by those bodies.
(4) If the answer to the last preceding question was in the negative,-Whether the Secretary of State should inform the Legislative Council and House of Assembly that, if such an Address or Petition was presented, Her Majesty would be advised to refer the question to the Privy Council.
That Mr. Wingfield was farther to request that we would favour your Lordship with any observations on the matter generally which we might consider would assist you in dealing with the case.
We have taken the matter into our consideration, and, in obedience to your Lord- ship's commands, have the honour to
Report,
That we are of opinion that Her Majesty may lawfully and properly in any case in which it is thought right refer the question of removing a Judge who, in a Colony without responsible government, holds his office during pleasure under Letters Patent (and Mr. Yelverton's is such a caso) to a Committee of the Privy Council.
It
appears to be the usual practice for the Privy Council to deal with any question of removing a Colonial Judge either on an appeal from "amotion" under Burke's Act (22 Geo. III. c. 75), or under a reference after suspension by the Governor under the powers, and subject to the restrictions contained in the Letters Patent constituting his office, and the instructions given to him.
There is, however, in our opinion, no reason why there should not be in a proper case a direct reference to a Committee of the Privy Council, and, baving regard to, all the circumstances of the present case, we are of opinion as follows:-
1. The direct reference to a Committeo of the Privy Council is a legal and constitu- tional way of raising the question of Mr. Yelverton's removal, and we see no objection to its adoption by the Secretary of State.
2. The question may be referred (a) to the Judicial Committee or (b) to any other Committee of the Privy Council, without any proceeding in the Colony, for amotion or suspension.
3. A reference may be made without any Address or Petition to the Crown from the Legislative Council or House of Assembly. In the case of the Bahamas such an Address or Petition has not any constitutional effect given to it.
4. This question does not directly arise, but if, for any reason, the course of a direct reference is not adopted, the proper course would be to intimate that proceed. ings for amotion in manner provided by the Statute, or suspension as provided by the Letters Patent and Instructions should be taken so as to give an oppor- tunity for appeal.
The Most Hon.
The Marquess of Ripon, K.G.,
&c. &c.
&c.
We have, &c.
(Signed)
C. RUSSELL. JOHN RIGBY.