Removal of Judges by Parliamentary Address and The Shaping of English and American Judicial Independence

The Act of Settlement, it is often said, was the first significant step towards the independence of English judges because, besides establishing tenure during good behavior and requiring a greater degree of certainty in pay, it sanctioned the device of parliamentary address for the removal of judges to check official misbehavior. Unlike procedures dictated by common law (scire facias) or lex parliamentaria (impeachment) which required trials, address was a summary procedure fixed by statute—an attractive method if the purpose was, as scholars have argued, to insulate judges from royal removal but not from parliamentary supervision. However, address fell almost immediately into desuetude because of procedural uncertainty, both as to method and effect. Along with the disuse of other procedures, the practical effect seemingly was to make judges largely independent of Crown and Parliament.

If judicial independence is an interlocking set of legal structures sanctioned by legislatures and executives centered on questions of appointment, tenure, decisional norms, and removal, processes of removal are the least examined of these structures, and address the least examined of those processes. By tracing the adaptation of address to remove judges, this paper considers how judicial independence was envisioned against the backdrop of Parliament’s presumed authority to remodel legal institutions at will and why this understanding shaped the development and disuse of removal processes. It then examines American colonial assemblies’ more vigorous use of address against a similar ideological backdrop contested and confirmed the English legal norms of judicial independence.