"You are charged with breaking a park ordinance forbidding the public to kill the robins. Of course you ought not to kill the robins for they are harmless birds, but I have looked this thing up a little, and I find that from time immemorial it has been held that there can be no right of property in wild beasts. Now, a robin is clearly ferræ naturæ—of a wild nature—and so the city has no property in it. The ordinance is therefore unconstitutional, and I am constrained to discharge you. You may go."
Nowhere than on the magistrate's bench is better illustrated the proverb that a little learning is a dangerous thing, but only a little learning, even such as classifies an innocent park robin as a wild beast, is preferable to an openly expressed intention of enforcing only those laws which appeal to the judge's individual sense of propriety. The writer recalls endeavoring some six years ago to induce a certain magistrate to hold a defendant for the grand jury for a certain statutory offence. The learned magistrate positively refused to do so on the ground that there was "no sense in the law."
"But it is the law!" returned the writer.
"Well, I don't care if it is," replied the judge tartly. "I didn't make it. It's no law of mine, and I don't propose to follow it. Go and get the grand jury to indict if you can, but I won't hold this man for doing what I might want to do myself some day."[21]
Taken as a body our magistrates, with a few obvious exceptions, are men of wide experience and practical common sense, who handle the enormous stream of business which comes before them with efficiency and dispatch. A forbidding exterior and, occasionally, a diction which might startle a Friday evening prayer meeting may co-exist with a fair mind, a kind heart, and an honest determination to see that justice is done. While the rights of the defendant are fully protected it is probable that actual justice is more nearly accomplished in these than in higher courts, where "reasonable doubt," the presumption of innocence, and kindred privileges, as interpreted by a sympathetic jury, intervene between the rights of the community and those of the prisoner at the bar.
FOOTNOTES:
[15] Of course if he has been indicted by the grand jury in the first instance, he is arrested on a "bench warrant" issued by a judge of the General Sessions and placed in confinement without any preliminary examination.
[16] This condition has been much improved in New York City by the institution of the "Night" Court in which one magistrate is always on duty. All minor offenders are at once arraigned before him, no matter what the hour, and thus may be disposed of without undue confinement.
[17] "Many persons are arrested under suspicious circumstances, such as well-known criminals mysteriously loitering about the streets at night, or frequenting crowded places, or persons having property in their possession for which they can give no good account, nor of themselves. Frequently such an arrest is the first step in the detection of some crime in which (after investigation), if the proper complainant is found, a formal complaint is taken, and the prisoner is held for trial. In many instances such an arrest prevents the commission of crime."
Comparison with Previous Years.