The Dominion. SATURDAY, MARCH 25, 1911. JUDGES AND POLITICS.

Dominion, Volume 4, Issue 1085, 25 March 1911, Page 4

The Dominion. SATURDAY, MARCH 25, 1911. JUDGES AND POLITICS.

Mb. Justice Higgins is a Judge of the Federal High Court, a tribunal set up for the special and highly-responsible purpose of settling Constitutional questions. as to the power of any of the Australian States to pass any particular law, for instance, are set at rest by a reference to the High Court. It is the interpreter of the Commonwealth Constitution, as other Courts arc tho interpreters of tho laws of their own States. The people arc entitled to expect that tho dignity which is looked for—and rarely looked for in vain—in his Majesty's Judges would bo exemplified with particular impressivenesjs by the Judges of the High Court of Australia. And that dignity is bound to suffer injury if a Judge, either -on or. off the Bench, becomes a partisan* in the controversies of the hour. It was, therefore, with a pained surprise that th£ leading newspapers of the Comiponwealth a few days ago recorded a certain remarkable speech delivered by Mr. Justice Higgins. Under the pretext of a lecture on recent Constitutional history, the learned Judge launched forth into the stormy waters of current politics, in support of the. Federal Government's referenda: policy. It was. pretty much what might have been expected ot' hinr beforo his elevation to the Bench, for Mr. Higgins, in those days, was a vigorous and outspoken politician, and a member of the first Federal Labour Government, but it was hoped that as a Judge he would be able-to forget that he had been a party man. However, he seems to have felt that the Government neoded his assistance, and he descended, as the Melbourne Age puts it, "from the High, Court Bench to the lower eminence of the political platform." Such an action was naturally followed by some weighty comment in the leading newspapers and it will be worth while to recall hero the main principles which they stated. Those principles are so essential to national well-being that they cannot be too firmly fixed in the public mind. Tho incident, of course, reminded cvoryone of the indiscretions of Ms. Justice Grantham, in England, and the Argus quoted as applicable to the Australian case a sentence from tho comment of the Times on the English one: "He must not bo surprised if others recollect, what he appears to forget, that a Judge has privileges, rightly given him, becauso ho submits to restrictions which are not imposed upon others who—to quote tho address to tlio grand jury at Liverpool—'tako a deep interest in tho welfare of their country,' and who believe that it is 'dependent for its welfare upon political principles.'" The Argus also recalled the weighty censure uttered by the British Prime Minister when ho said that Mr. Justice Grantham's conduct met with "universal reprobation." What then is the ground of the reprobation with which the conduct of these eminent Judges is regarded ! The Argus puts it briefly: "He cannot be a Judge and a partisan and still retain the respect which tho people, following time-honoured example, willingly render to those who hold judicial office." And tho paper forthwith illustrates this saying by criticising Mr. Justice Higgins's arguments in a tone which, under the circumstances, is justifiable, but is certainly not the tone one would wish to use in speaking of the utterances of a Judge. The Argus soundly accuses him of "ignoring or glozing over" a dominant fact. The other great Melbourne daily, the Age, remarks upon "the peculiar taste, or lack of taste, that inspired Mr. Justice Higoins (as a private citizen) to support in the political forum a referendum which asks power to improve the status of a Court over which his Honour (as a public functionary) presides." And the paper proceeds to justify, by a series of citations from the speech, its assertion that "as is nearly always the case when sentiment and judgment get to hand grips, sentiment won the day and committed him to a series of statements that are both fallacious and absurd." The speaker is charged with_ suggesting "meretricious, absurdities," advocating " a piece of rank stupidity," and omitting facts which "common fairness" would have caiiscd him to state. Tho Syd-' ney Daily Telegraph declares that

his Honour's argument is no bettor than his taste: He lias appeared in the party arena as the unashamed juggler witli facts for the purpose gf making out a ease in favour of the Government policy. A Judge who descends lo that sort of thing off (lie Bench can scarcely expect to find his utterances on tho Bench commanding the respect which is due to them. The Telegraph also does well to point out that a Judge who joins in party wrangling has an unfair advantage over his, political opponents : A judgeship is a fine rostrum to address the mob from. It is a height from which words will carry far. Put an ordinary party lighter on the Bench, and if he is to remain a parly fighter lie will have a materially strengthened punch by the virtue of position from which the blow is delivered. Should the precedent jiis.t created by Judge Higgins be allowed to stand, therefore, Governments, in appointing Judges, may be arming champions for the political fray as well as selecting men to administer tho law. And naturally they will expect a due nerforisance of both services, as far as that is humanly possible. So dangerous a. precedent, we trust-, will not be allowed to stand, for if all Judges were politicians, there would be an end of legal justice. The Telegraph sketches tho possibilities of something like a boycott of the Bench: A citizen, quite irrespective of tho 1 Judge's intended impartiality, would be justified in refusing to' have his case tried in the morning by a man with whom ho was .it political handigrips in tho evening. And if the litigation involved the very questions at issue in the party conflict there would be a still stronger ground for his objection. "What would happen, therefore, should every Judge put in his spare time on the political stump it is rather hard to conjecture. Two opposing litigants might also be political opponents. Whichever side the party Judgo was on in that case he would be opposed to oilo of them. Under such circumstances, the administration of justice would, to say the least, be surrounded by difficulties. What is the Federal Government going to do about it ? Mr. Hughes, the Attorney-General and ActingPrime Minister, is, perhaps, grateful to Me. Justice Higgins for coming to his aid in the referenda campaign. If the Minister ignores this offence against judicial, propriety, the public will draw unpleasant inferences. On the other hand, to rebuke his distinguished supporter would be an unpleasant task. Par-' liament, having been adjourned until September, can do nothing in the meantime. The Telcr/raph suggests that Mr. Justice Higgins should "cut the Gordian knot of what the Acting-Prime Minister must feel a difficult situation, by sending in his resignation."