The Dominion. THURSDAY, SEPTEMBER 15, 1910. THE BENCH AND THE PUBLIC.

Dominion, Volume 3, Issue 922, 15 September 1910, Page 4

The Dominion. THURSDAY, SEPTEMBER 15, 1910. THE BENCH AND THE PUBLIC.

Some of our contemporaries have been_ deriding or_ scolding the Chief Justice for the singular terms upon which he admitted' to probation in Auckland a young man convicted of perjury. He ordered, it will be remembered, that the! man should not only keep early, hours and refrain from drinking, but also refrain from smoking. In those comments upon this novel prohibition which we have so far seen, the really important points have been overlooked. There is no reai danger that tho Chief Justice's practical application of his •theory upon the tobacco habit will establish a- precedent likely to be followed. Nobody can really, believe that judges will ever get into the way of allowing the details of their judgments in criminal eases to be shaped their private theories about habits or conduct. But the l under notice raises another.

question'of great importance. Sir Robert Stout is convinced that tobacco works., serious! havoc upon humanity, but most other people, and most other : Judges, disagree with him, Judge Williams has praised the cigar, and Judge Edwards is a faithful friend of the pipe. It is therefore, to put it with moderation, a quite open question whether the world would be better or worse,if tobacco disappeared. This being so, it is obvious that the administrators of the law should not treat it as a solved problem, which is really what the Chief Justice has done. The Legislatures are constantly treating doubtful theories and assumptions as settled facts, and building upon' them the machinery that • regulates society. The Chief Justice's "no smoking" order is simply this : tendency breaking through into visibility in our Courts of Justice. It is not, however, merely to- record this fact that ,we have referred to the matter ; what strikes,us as the most important thing about the 'case is that the Chief Justice's decision is of a kind to lower the dignity of the Supreme Court and the respect in which' it is" essential, for the well-being of the.'nation, that the Court should be ; held.

This is not quite a'new topic with us,-for we have on several occasions in .the past three, years voiced the apprehension with which all thoughtful people must witness any descent of the Court from the noble height at which it has generally been maintained in New Zealand and throughout the British. Empire. That the public in general approves the doctrine that the Supreme Court shall keep itself in a world of its own, as far from the follies and trivialities and passions of the public as from the noise of politics, is proved by the fact,that nobody would listen for a moment, to any suggestion that it is an institution that should be, ".democratised." ' Anything . • that tends 'to-encourage public discussion as to.tho wisdom, the calmness, and the probity of the Bench'is to be deplored as tending to sap.tho'law'abidirig spirit. , That is why Sir Robert' Stout's decision—a trifling thing, in itself—is regrettable, and that is why, also,: a judgment de-; livercd in Masterton on the 6th" inst.. by Judge Edwards is also regrettable. In this case a man, charged with a serious offonce, was found "not 'guilty." . The Judge stated that-he was not.at all sur.prisecl at the verdict, "because thejury did not know . as 'much about the accused as he did." The accused,, he said,, had already served .four, sentences for the same thing. .'Then,' addressing, the prisoner, he added, ; according to the report, in'the Masterton Times:. "You had'better.'be careful. I think I should'have found the same verdict if I had not had this before me.-' Prisoner, you are discharged, and let nie recommend you to give up this beastly practice or you will get yourself into serious trouble. I may. tell you that I in-' .tend to';make representation to the Minister for Justice by which you shall be brought under the-Habitual Offenders.Act, so.that if you got into, trouble again l , you will -be 'put up for a very, long : sentence, . His Honour's observations-as-to what the jury might have done had they the. prisoner s record before them appear ; to us to have, been' quite uncalled for.! It is.'" not permitted that a prisoner's past'should be. allowed to prejudice his chances of obtaining a fair trial on the merits' of the matter with which. he / 'stands:char§ed; : 'and, when a jury acquits a prisoner oh the' evidence placed before 'it, comments by: a Judge of tho 'nature re- ; corded above'.are liable to' have a harmful, effect riot only on the prisoner's future, but on the minds of the jury who\have acquitted- him. In going so far beyond his judicial furictiqns ; Judge Edwards had .some.thing like, a precedent. in the 'Chief,: Justicb's observations upon some decisions'by'juries in Auckland with which, he disagreed. We should' be the first to protest against any atr. tempt to interfere with the freedom of the Judges even if they used their freedom, unwisely, for the immediate results.-of judicial error cannot possibly be so .evil as the! results that would follow the subordination' of the Courts to any other'power'in the' land. At the. same time jtho interests of the Court, which are - the' true interests of the-nation, require that protest be' made in this unofficial >yay' when the Court itself, acts in a manner'that makes it the subject of disrespectful discussion -by' the 'people. . .■> '.-- ''■•'•''!-;''.' '.-■:• .. ■■'.-'■ :|