§ 292. “As the Parliament Prescribes.”
The Executive seems clearly precluded by these words from appointing any Justices of the High Court until Parliament has prescribed the number of Justices of which the Court is to consist. It appears, too, that no appointment of a Chief Justice or any other Justice can legally be made until an ascertained salary has been made payable by law; see Buckley v. Edwards (1892), App. Ca. 387, and notes, § 293, infra.
“The Constitution impliedly vests the Congress with the power to create the judgeships of the Supreme Court and endow them. The language of the Constitution is that ‘the judicial power of the United States shall be vested in one Supreme Court,’ &c. The Supreme Court itself seems thus to be created by the Constitution and therefore not subject to any power of Congress to constitute or abolish it; but the Constitution does not itself create the judgeships in this Court nor expressly declare what organ shall do so. Without the judgeships, however, the Court would be only an abstraction. From the clause which alludes to the general power of the Congress to provide for the establishment of all offices not established by the Constitution and for the method of filling the inferior offices, we infer that the Congress is vested with the power to create the judgeships of the Supreme Court in such number as it shall deem proper. Once established, however, and filled, the Congress has no power to abolish them during the good behaviour of the existing incumbents ..... nor to diminish the compensation attached thereto. It is a question whether Congress has the power to abolish the judgeships of this Court at the legal expiration of the respective terms of the existing incumbents. It seems to me that it has, although this might reduce the
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Supreme Court to an abstraction again. The Congress ought, certainly, to maintain these offices in sufficient number to do the business of the Court; but if it should not do so, I see no redress save at the elections. The only imperative command which the Constitution issues to the Congress upon this subject is that there shall be but one Supreme Court. Judicial unity is absolutely required, but everything else is left to the discretion of the legislative body.” (Burgess, ii., 157-8).
Judges' Appointment, Tenure, and Remuneration.
72. The Justices of the High Court and of the other courts created by the Parliament—
- (i.) Shall be appointed293 by the Governor-General in Council:
- (ii.) Shall not be removed294 except by the Governor-General in Council295, on an address from both Houses296 of the Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity297:
- (iii.) Shall receive such remuneration as the Parliament may fix; but the remuneration shall not be diminished298 during their continuance in office.
HISTORICAL NOTE.— The origin of this clause dates from the early constitutional struggles in England between the Crown and the people. Anciently, the judges held their commissions during the King's pleasure, and under the Stuart kings the Bench was systematically packed with partizans of the Crown. As early as Lord Coke's time, indeed, the Barons of the Exchequer were appointed during good behaviour (4 Inst. 117); and at the restoration of Charles II. the Commissions of the Common Law Judges were in this form. (Kent's Commentaries, i., 293.) But there was no statutory restriction on the Crown's pleasure until 1700, when the Act of Settlement (12 and 13 Will. III. c. 2) provided that “judges' commissions be made quamdiu se bene gesserint, and their salaries ascertained and established; but upon the address of both Houses of Parliament, it may be lawful to remove them.” In 1760, by the Act 1 George III. c. 23, it was further provided that judges' commissions should continue notwithstanding the demise of the Crown, and their salaries were secured to them during the continuance of their commissions. These enactments for securing the dignity and independence of the Bench form the basis of the constitutional provisions to a similar effect throughout the British Empire.
In Great Britain, therefore, as well as all the Australian colonies, and in the Dominion of Canada, judges hold their office “during good behaviour,” and can be removed by the Crown for misbehaviour without any address from Parliament; whilst, apart altogether from any question of technical misbehaviour, they can be removed by the Crown upon an address from both Houses. In the Commonwealth Bill of 1891 a new principle was introduced, and it was provided that the Judges should hold office during good behaviour, and that it should “not be lawful for the Governor-General to remove any Judge except upon an address from both Houses of the Parliament praying for such removal.” The intention apparently was to make the Address a necessary part of the procedure in cases of misbehaviour.
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In the first draft of the Adelaide Bill this intention was made clear. In Committee, at Mr. Kingston's suggestion, the tenure was still further secured by limiting the Parliamentary power of intervention to cases of “misbehaviour or incapacity.” It was pointed out that in a Federal Constitution, where the Courts were the “bulwarks of the Constitution” against Parliamentary encroachment, the Judges' independence of the Legislature should be specially safe-guarded. (Conv. Deb., Adel., pp. 944-962.)
In the Melbourne session the tenure was still further secured by providing that the Parliamentary addresses must pray for removal “upon the grounds of proved misbehaviour or incapacity;” thus ensuring that the Judge should be heard in defence, and that the charge against him should be alleged in the address. (Conv. Deb., Melb., pp. 308-318.) Drafting amendments were made before the first Report and after the fourth Report.