The Dominion. MONDAY, MAY 29, 1911. JUDGES AND CRITICISM.

Dominion, Volume 4, Issue 1139, 29 May 1911, Page 4

The Dominion. MONDAY, MAY 29, 1911. JUDGES AND CRITICISM.

A point of very high public importance is involved in a lawsuit mentioned in a cable message last week. For some time past Mr. Justice Higgins, who'presides over the Common wealth Arbitration Court, has been obtaining a good deal of notoriety by his display of strong political bias both on and off the Bench. On the Bench he has talked inflammatory rubbish of the sort that our friend Mr. Tregear indulges in • off it he has appeared as a frank partisan 'in the political quarrels of tho day. It is not surprising that the press criticised this conduct very sharply. One of the most outspoken critics was the Hobart Mercury, which on April 7 opened a leading article with these very blunt observations: "Mr. Justice Higgins is, we believe, what is called a political Judge j that is, he was appointed because he had well served a political party. He, moreover, seems to know his position, and does not mean to allow any reflections on those to whom he may be said to be indebted for his Judgeship." The Mercury based its criticism, which seems to be well-founded, on the fact that when, during the hearing of a case before the Arbitration Court, one of the counsel said that the Broken Hill labour organisation was encouragscl by the Government, the Judge rebuked him, saying, "You are not entitled to speak severely of those above us." Last week the Judge made a statemoHt from the Bench. The only means available to him to correct misrepresentations, he said, was to make an announcement in Court, but he added that ho was going to take other steps. ■ It is much to his credit, it must be admitted, that, instead of pretending to be unable to take action in his'clefcnce, he chose to make a practical retort upon his critics. The steps he took leel to the issue of notice to the editor of the Mercury that the High Court will be moved that he be committed for contempt of the Arbitration Court. The case was to have been heard this week.

The main question involved—the right of a person or a newspaper to criticise a Judge—is one which, very strangely, has not yet been absolutely settled in the mind of the public. In England lately there broke out against Mr. Justice Granthaji a storm of newspaper criticism far more severe than that for which the Hobart Mercury has been called to account, and nobody there, in that homo and original soiirco of the current traditions concerning Judges and justice, dreamed of claiming immunity for Judge Grantham. The most notable case ot attack upon a Judge's impartiality during recent years was the onslaught of Mr. Roosevelt upon Judge Baldwin during the .Congressional election last spring. Mr. Roosevelt had been making some sharp attacks upon the Judges generally. He even went so far as to call the federal judiciary "fossilised" and to accuse it of thwarting the intentions of the law. In a certain case Judge Baldwin had held that a workman should be permitted by contract with his employer k> waive his rights of compensation in case of accident, and Mr. Roosevelt sharply attacked the Judge in a speech at Concord, imputing to him reactionary motives. This speech created much discussion, and led to a prolonged controversy which ended with the Judge announcing that he would bring a suit for slander or libel. The suit was finally avoided, however, by mutual explanations. The attitude which Mr. Roosevelt took up was interesting in view of the fact that he was wiclcJy assailed for attempting to bring the Courts into disrepute, or, as one eminent professor of law put it, to pour ridiculo upon the Court's membership and to disgrace the Beach in the eyes of the public. "It is essential," he declared in a speech in Brooklyn, "in a country like ours that we should have intelligent criticism of every public officer, of every Judge, of every Governor, and even the President. ... I would ask those business men who propose to enthrone that species of unspeakable corruption [Tammany] in the Capitol, in what position they place not only themselves but the world of business? They take the .position that business wants dishonesty in office, instead o£ honesty. No agitator could do so much damage to business as tHose taking such a position. It is no more absurd to say we are against honest politics when we denounce dishonest politics than to say we arc against legitimate business when we denounce crooked business." In his final letter to Judgk Baldwin, he insisted that "it is dangerous to our democracy to allow any Court to claim immunity from fair criticism or objection," and he cited in his defence Lincoln's attitude upon the decision in the Dred Scott ease in 1857.

This famous decision, which did much to' precipitate the American Oivil War, was given in the case of a negro named Scott who sued for assault and battery the person claiming to be his master. The Court decided that a slave taken temporarily to a free State and to a Territory in which Congress had forbidden slavery, and afterwards returning into a slave State and resuming residence, there, was not a citizen capable of suing in the Federal Courts if by the law of the slave State ho was still a slave. This decision was denounced

in unmeasured language by Lincoln. In a debute with Judge Jjolt.ms he said he had as much respect as his adversary for the judicial department of government, but added:

If this important deci.-ion had been made liv the unanimous concurrence of (he Judges, and without any apparent partisan bins, and in accordance with legal public expectation, and with the steady pinetieo of the. Departments throughout our history, and had been in no part bated on assumed historical facts which axe not really due ... it then might bo, perhaps would be, factious, liny, even revolutionary, not to acquiesce in it. ... But when, as is true, we find it wanting in all these claims to the public confidenoo, it is not resistance, it is not factious, it is not wen disrespectful to treat it as not having yet established a settled doctrine for the country.

Lincoln went a good deal further than this, and in an cMorntc metaphor, he mentioned the Judges by name, and said it was impossible not to believe that they had conspired together from the beginning. As Mr. Roosevelt pointed out, he erred in good company, if he erred in believing that the judiciary was not above criticism,