IMPARTIAL JUSTICE

Waikato Times, Volume 124, Issue 20786, 22 April 1939, Page 15 (Supplement)

IMPARTIAL JUSTICE

Britons’ Heritage : : An Independent Judiciary

(By Henry T. Lummus, Associate Justice MY SUBJECT ... is hackneyed. So are the Ten Commandments, the law of gravitation, Gresham’s monetary law, and every other fundamental truth. But just as there are those who still assert that the earth is flat, that unlimited flat rconey would help the country, that morality is a myth, so there are those to whom the ideal of impartial justice seems an outworn superstition, unworthy of forwardloolting people. ...... What do we mean by impartiality in justice’ The Bible says, “It is not good to havtfi respect of persons in judgment. When on one side of a legal controversy, criminal or civil, there is a small group or perhaps a lone individual —friendless, despised, hated and believed generally to be the scum of the earth—and on the other side are arraved both the powerful and the popular—presidents, governors, the press, the respectable and the well-to-do, all the power of public opinion, demagogues with popular prejudice in their favour and skilled in whipping that prejudice into fury, and mobs that howl for vengeance against the little group or the lone individual—then, in that hour of crisis, impartiality means that the tribunal that must make the decision will sit there, Calm, Serene, Unmoved by the Tumult, and the shouting, and, guided by its own conscience, will decide according to the law and the evidence. Judicial impartiality is a high ideal, but by no means an impossible one. A man who is incapable of attaining this high ideal cannot be a good judge. . . . Some of you may wonder that anyone thinks it necessary to argue the need of impartial justice administered by independent judges. You may think that everyone favours it. One might as well, you may say, set out to prove an axiom in geometry, or that two and two make four. . . . But unfortunately the doctrine that to you and me seems obvious and indisputable, that justice must be impartial and judges independent, is under fire to-day. In the first place, litigants want a favourable decision, not justice. In nearly every case one side or the other goes out of court dissatisfied and resentful. The cheap political notion of government by “pull” and “fixing' has corrupted public c : nion even among those who consider themselves good citizens. Unthinkingly, some people demand government of that degraded sort in the courts as well as in other branches of the state. . . .

Massachusetts Supreme Judicial Court.) In the middle ages not only the king, but every noble, was a fountain of justice. Most of them were ignorant, brutal, rapacious and capricious—everything that a judge ought not to be. In time the work of administering justice was turned over to more learned but usually venal delegates. Justice Was Bought and Sold, and litigants were expected to make presents to the judges. As late as the time of Lord Bacon, he accepted presents from the parties, and defended his conduct by saying that he did not always decide in favour of those who paid him most. Only gradually did the bench, even in England, become free bribery. Personal influence and lobbying continued much longer than bribery. As late as the reign of Queen Anne, the votes of members of the House of Lords were obtained on appeals in law cases by lobbying and trading, just as they were on ordinary legislation. The Stuart kings, having the power to appoint and remove judges, removed many judges for not doing their bidding to the full. One of the judges removed was Lord Coke, who, when King James the First asked him how he intended to decide a certain case, made the noble answer, “When the case happens I shall do that which shall be fit for a judge to do.” The subservience of the judges to the government and the crown did not end in England until 1700, when the Final Act of Settlement of William the Third provided that judges should hold office during good behaviour, and should be removable only by impeachment or the joint action of the crown and both houses of Parliament. The battle of centuries for judicial independence was won, so far as England w r as concerned. Impartial Justice Was Triumphant. From that victory the courts of England and her Dominions—like Canada—gained in public esteem and confidence, until to-day they stand higher than any others in the w’orld. . . . When the thirteen colonies gained their freedom from the British yoke, they set up an independent judiciary. They had no more wish to have their judges dependent upon the favour of the crowd than upon the favour of a king. An independent judiciary accords with democratic principles. It preserves the dignity and the rights of the individual, restrains the power of centralised government, and makes reason prevail over force. A dependent judiciary is the pliant tool of tyranny, whether of king or faction or mob. Because I love democracy, and the equality of all men before the law, I love impartial justice and believe in the independence of the judiciary as the only means of securing impartial justice.

It may aid us in evaluating judicial independence to trace its history and to learn with what courage and toil our forefathers won it. We may find that the doctrines now advanced as progressive and liberal are in truth only a reversion to the outgrown theories and practices of barbarous ages.