The Dominion. FRIDAY, JUNE 2, 1911. JUDGES AND CRITICISM.

Dominion, Volume 4, Issue 1143, 2 June 1911, Page 4

The Dominion. FRIDAY, JUNE 2, 1911. JUDGES AND CRITICISM.

The public will be sure to read with special interest the cable message in this issue which reports some of the observations of the De-puty-Speaker cf the House of Commons upon some criticism directed at the Courts by Mb. Winston Churchill. What Mr. Churchill said we arc not told, further than ho "expressed the opinion that the Courts were biased, doubtless unconsciously, in dealing with questions involving class and party issues.,' No doubt the substance of his criticism was the same as that which he littered iu reply to a trades-union deputation on March 14. On that occasion he said he "joined with the deputation in deprecating any general expression of opinion from the Bench calculated to destroy or weaken the confidence of the great mass of the wage-earning class of the country in the impartial administration of justice." He added that on several occasions statements had been made from the Bench respecting track unions that had "added bitterness and a sense of distrust to the administration of the law." This criticism, of course, received wide publicity, and we have been unable to find that it anywhere encountered disapproval. The only comment upon it that we have is that of the best of the Liberal journals, the Westminster which says that "most people will agree" with Mr. Churchill, and adds that "the grave nature of the danger" he referred to "needs no emphasis." This is perfectly true, since the tendency of some British Judges to. attack trade unions unjustly is as well known, and just as reprehensible, as the tendency of Mr. Justice Higgins, of Australia, to break forth against employers. Just as, in Britain, judicial bias, conscious or unconscious, weakens the confidence of a largo section of the community in the Courts of justice, so the obiter dicta of Judge Higgixs has created a very unpleasant feeling of insecurity in the minds of a large section of the Australian public. But what is quite innocent outside Parliament may, through the customs and usage of the House of Commons, become a little questionable in the House. The Dcputy-Spcakcv's comment upon Mn. Churchill's criticism was required by Parliamentary convention: a Judge must not bo criticised in a field that'he cannot enter with his reply. That is

quite proper. Equally proper, however, is the rule that where a Judge can reply, and reply from a position oi advantage, fair criticism of his action is not only permissible, but desirable in the interest of everybody, and, not least, of the Judge himself.' For, as Cicero says, Jon pntest sevcrus csse in judica'ndo, qui aim in sc scveros csse non vult: He cannot be strict in judging, who does not wish others to be strict in judging him." In reading the telegram, the public will at once think • of Me. James Allen's very wholesome _ censure of the Government's practice of paying very large sums over and above his salary to the Chief Justice. The point of Mr. Allen's criticisms, the purpose of them, is the defence of a vitally important principle that both the Government and the Chief Justice either despise or fail to understand. Every journal in New Zealand of any standing that has dealt with the point has approved of the principle that Me. Allen seeks to preserve, and most of them have commended his courage in pointing to its violation. His ground is precisely the same as' Me. Churchill's, although his case is enormously stronger. Me. Churchill was concerned lest the good repute of British justice should be lost in tho minds of a great body of the public; Mr. Allen sees the same danger in the practice he condemned. It is a long established axiom that the courts of justice must remain above suspicion if justice is to remain pure, for, once it becomes generally felt that the Courts may not be absolutely pure, the thing essential to judicial immaculateness, the true source and basis of pure justice, namely, the perfect faith of the public, has begun to decay. The Deputy-Speaker pointed out *that, as the House was closed to tho judiciary, Judges should not bo attacked except on a specific motion. This may or may not be a doctrine that accords with the public interest, but it is the doctrine of British Parliamentarism, and as such must have fore in the New Zealand Parliament. We are quite sure that Mr. Allen has not, and never had, any desire to criticise any particular Judge. His concern is for a good principle that has been grossly abused to the great damage of the public confidence without which the courts of law cease to bo perfect guardians of justice. His reference to Sin Robert Stout was forced upon him, and v:c arc bound to say that we are with him in this detail, and we are pretty sure that nobody can spend any time in Wellington without discovering that the people who arc nearest to the stage of action, the Wellington public, are with him too. Whether Me. Allen will move a specific motion in the House dealing with tho principle for defending which ho was approved by nearly every; newspaper on both sides of politics which discussed the matter, we do not know. It is fairly certain, however, that if he were to move any motion whatever—if he were to move, say, "That this House affirms the principle that the Judges of the Supreme Court shall not receive from the public funds any sums above their salary"—Sir Joseph Ward could lead a majority into the "Noes-" lobby against him. Biit we hope that Mr. Allen will bring forward a motion on the point. Its rejection will be the best possible proof that the party in power ought to Iμ turned out. There could be no public meeting that would not support such a motion. Only Parliament would be likely to reject it.