The Dominion. THURSDAY, JUNE 15, 1911. A WEIGHTY JUSTIFICATION.

Dominion, Volume 4, Issue 1154, 15 June 1911, Page 4

The Dominion. THURSDAY, JUNE 15, 1911. A WEIGHTY JUSTIFICATION.

9 The decision in the case brought by the Crown against the Hobart Mercury, which we report at length in another column, will be read, we are sure, with much interest by the public. Its value is in its bearing upon the controversy over Mr. James Allen's criticisms of the payment to the Chief Justice by the ! Government of largo sums over and above his salary. It will clear the air beyond further darkening, and will remove from every honest person's mind the last vestige of doubt that may have been implanted by the furious uproar of Ministers and their press since Mb. Allen made his first statement. As we said on anearlier occasion the plan of mere noisy abuse adopted by Mil. Allen's critics would not prevail, but it is as well that we have the issues raised in the controversy clearly decided iijDon, by a happy accident, by the High Court of Australia, The decision of the Court was, to put it shortly, that although the Courts, and the law and the ccurse of justice must be protected, a Judge is no more above fair criticism than anybody else. As the Melbourne Age says, the judgment is based on equity and good conscience, inasmuch as it affirms the sanctity of the Courts, the non-sanctity of Judges, and the right and duty of the press to perform its function of criticism in the public interest. "A Judge,'' said the Chief Justicc, "may sometimes be criticised for passing a remark unconnected with the matter before the Court," It is really very curious how exactly this impregnable armour fits Mr. J.uies Allen. Me. Allen complained specially of two statements by Sill Robert Stout —both misstatements, it must be borne in mind—upon the substance of Mr. Hike's charges "against Mr. Symes. These remarks of Sir Robert Stout's were as exactly "unconnected with the matter" before the Court as any remarks could be. Sir Samuel Griffiths, however, was moro emphatic than this. He' recalls the fact—which we mentioned at the time—that nobody considered improper the sharp criticisms of Mr. Justice Grantham's bias, and he affirmed that "to attack a Judge's impartiality may. in certain circumstances, be a duty to the public." "Judges," ho said again, "arc not sacrosanct.- It is no good to suggest that they arc." In the judgment itself the Court took care to define the general principle in these clear and cmphatic terms, which ought to silence Mr. Allen's critics for good, and which will silence those of them who know when not to be ridiculous : "I am not prepared to take up Ihe position th.it when the subject ot' criticism is the impartiality of a Judge it is contempt of Court. Oil the contrary, I think that if a Judge or any Court were to make a public utterance of such a nature as to he likely to impair the confidence of the suitors in the Court as to that Cuiirt's impartiality, or any part of it, any public comment on such an utterance, if fair, far from being contempt of Court, would bo for the public benefit, and would be entitled, under the law of libel, to the same protection given in such cases." The public must not overlook the very important fact that if a Judge considers himself libelled he has all the ordinary rights of any other citizen. It is necessary to mention this because some of the less scrupulous of Mr. Allen's critics actually had the assurance to reprobate "attacks on a Judge who has no means of reply." In point of fact, of course, Mr. Allen was chiefly concerned to warn the public of the evil in the Government's contempt for or ignorance of a principle which practically the whole press of the • Dominion—even including Mr. Allen's sharpest critics—has quite candidly admitted to bo essential to good government and sound justice. His criticism certainly touched the Chief Justice, but who will say that the Chief Justice did not require a reminder that the practice which he acquiesced in was a very undesirable one? Now, when wc look back over our records of the controversy, what strikes us most forcibly is the abnormal violence of the language used about Mr. Allen by some of his critics. They said he had made a "sinister charge," a "chargc that we have a corrupted judiciary"; they railed at his love for "mud-slinging," denounced' his "wickcd recklessness," his "allegations of the grossest corruption," and "the grossness of his indictments." They pronounced him guilty of "a grave slander." If onetwentieth of their charges against him had been true, one-twentieth of their hard words justified, he would have been liable to imprisonment. After all this Ministerialist foam and uproar, it is refreshing to read the judgment in which the High Court of Australia provides Mr. Allen with the fullest and most powerful justification possible for his action. The judgment will be welcomed; also, by all well-conduct-ed newspapers, for it is an excellent thing for the press and the public to have this formal admission of the doctrine that all good newspapers consider the true one—the doctrine so well put by the Sydney Morning Herald: "The press, we feel sure, lias no other feeling than that of respcct for the high function of the judicial office. . . , Biii tho press has its own great public function to fulfil, and its comment on affairs demands its own share of privilege, for the sufficient reason of its duty to the public. ... If tho Judges, cither by human imperfections, to which, after all. they are subject, or by reason of anything inimical to the public welfare, como within legitimate range of criticism, it is not right that they should be exempt therefrom merely by reason of judicial office."