From the archive: February 9, 1952

A NEW REIGN

It will be a little while before common use renders us unconscious of a faint, far echo of the nineteenth century when we hear of "Queen's Counsel" and the "Queen's Bench Division," expressions evoking legendary figures like Lord Russell, C.J., Hawkins, J., and Sir Edward Clarke, Q.C., calling up visions of battles long ago, the Baccarat Case and the Tichborne Claim.

One of the daily papers has been amusing itself fitting the familiar figures of Lord Simonds, L.C., et alios, our notable contemporaries, into a rather doubtful Elizabethan fancy dress. It would be somewhat nearer the mark to measure them against the giants (were there, by the way, really giants in those days?) of the second half of the nineteenth century, the great Victoria's England.

There was a time when, on the death of the Sovereign, the Government of the realm was suspended and the King's Peace ended. Parliament was dissolved and the judges of England with all other civil and military officers were deprived of that royal authority whereby they exercised their functions, their offices being automatically vacated.

Gradually, as the eighteenth and the nineteenth centuries advanced, it was found possible to modify the administrative inconveniences of so sudden and complete a break. Thus it was, under George III, by the influence of Lord Bute, that the judges were secured in their offices irrespective of a demise of the Crown.

Dr. Johnson did not approve and it is worth recalling exactly what he said: "There is no reason why a judge should hold office for life more than any other person in public trust. A judge may be partial otherwise than to the Crown; we have seen judges partial to the populace. A judge may become corrupt and yet there may not be legal evidence against him. A judge may become forward from age. A judge may grow unfit for his office in many ways. It was desirable that there should be a possibility of being delivered from him by a new king." (It is remarkable how often Johnson rings the bell.)

But the preference for continuity and a smooth take-over prevailed more and more over the idea of a clean sweep, a new page and a fresh start. A variety of statutes gave piecemeal effect to the preference till the final stage was reached when the Representation of the People Act, 1867, ensured that Parliament should live though the Sovereign died, and the Demise of the Crown Act, 1901, enacted that the holding of any office under the Crown should not be affected nor should any fresh appointment be rendered necessary by the demise of the Crown. SJ