In countries where the magistrate is appointed by the head or ruling power for his qualifications, and is independent of the people over whom he presides, this feeling or sentiment, as a general thing, has been justified. The people living under the administration of such, lay themselves down and sleep in peace, and arise and go to their avocations, feeling that their rights, their property, and their lives are secure, because the righteous magistrate dwells in the land!
Under our democratic ideas, that because “the people are sovereign,” we must therefore permit them, in carrying out these ideas, to exercise the power of electing all of our officials from the highest to the lowest, we run a great risk of placing the liberty and the welfare of the citizen, in the hands of bad and immoral men. However capable the people may be as a whole to judge of the qualifications and fitness of any certain person for a magistrate, if they would as a whole exercise their sovereignty, no one, we presume, will claim that the portion of the “sovereigns” who congregate in “grog-shops,” and act under the inspiration of intoxicating beverages, in procuring nominations, are properly exercising the sovereign power, or that “the voice of the people,” thus expressed, is “the voice of God.” That some good magistrates, as we truly have, are elected under the present system, but illustrates the truth that it is possible to elect the right kind of men to office, if the better class of citizens will but exercise the privilege of the franchise, which under our theory of government it is the bounden duty of every good man to do.
The evils arising from the magistracy, as at present administered, are the results of two causes, which ought to be removed:
1st. The mode of selecting or making magistrates.
2d. The mode of compensating them.
From the nature and duties of their office, they should be removed as far as possible from any dependence upon the favour, the votes, or the fees of the people over whom they judge or rule.
Being a part of the ruling power, having delegated to them the “mastery” over the people, they should receive their authority or appointment from, and be dependent upon, the supreme authority or head magistrate, or “Master” of the City or State, and his constituted advisers, the council or senate, and removable only for cause. Being thus appointed by him who represents the sovereignty of the people, and by his position and responsibility to the people for his acts, we might reasonably expect to find men appointed, capable of discharging the duties, and worthy of the sacred trust of a magistrate. Again, as to the second point, the magistrate should not in any way be dependent upon, profited by, or have any portion of the “fees” of his office, but should be appointed for a certain precinct, ward, or district, and receive a certain fixed compensation or salary from the public treasury. All “fees” or charges, being the penalty for breaking or infringing the laws, should be collected and paid over to the public treasurer by the magistrate, leaving him free to act uninfluenced by them, as the impartial agent of the law, as between the ruling power or sovereignty of the people and the accused, and enable him to act as a peacemaker, or reconciler of difficulties. Under the influence of the “fees” to be derived from “committing” the person accused, is there not danger that self-interest may sometimes induce the magistrate to commit unnecessarily, or otherwise encourage bad feelings between the accuser and the accused, when a more independent position might lead the magistrate to secure a reconciliation and settlement of the difficulty?
All persons thus appointed and acting, should have power to act not only as committing magistrates of persons after examination, to be tried by a higher court or magistrate for heinous offences, but they should be authorized and required to try all trivial or minor cases, summarily, and to decide upon the same, and pronounce sentence accordingly, without appeal except in specified cases. A system similar to this prevails in other cities, or did at least in New Orleans before the rebellion, where Recorders or criminal magistrates acted or presided over certain defined districts; justices of the peace acting in civil cases only, one being entirely separated from the other, and the same person not allowed to act in both positions. The system was found to work to advantage there, though the incumbents of the position, contrary to what we deem wise, were elected by the people. As adjuncts to such a system, a Work-house for mature offenders and vagrants, and a House of Industry (or Refuge) for juvenile ones, to which the magistrate could sentence them, would be needed to relieve our County Prison of the surfeit of cases now sent there, and to relieve the public, by the fruits of their labor, from their cost of maintenance; and so situated as to lead as far as possible to their reformation, and to the formation of habits of industry, regularity, and temperance. Such institutions could, as elsewhere, be made to pay a profit to the city, instead of as now maintaining the victims of the magistrate at heavy cost, in idleness and amidst evil associations. The workings of the present system prevailing in our city, are forcibly presented by the Reports of the Inspectors of the County Prison, and those of the prison agent of the same,[2] from the latter of which we select only the following, which are but a sample daily occurring:
1. One of these cases is that of a young soldier committed [May 15th], on the charge of homicide. The Agent went to Washington, visited the camps, and saw that witnesses therefrom were brought here. These were brought here under the charge of an officer, specially detailed by the Court for the purpose, to prove an alibi in his behalf. It was not, however, found necessary to present this evidence, as another witness was found who testified to seeing the murder committed by a different person. The prisoner, in consequence, was at once acquitted.
2. Another case was that of a United States marine, the victim of a conspiracy, whose object was to have him arrested and imprisoned as a deserter, in order to recover $30, which are usually allowed in such cases by Government. The chief actors here—as it appeared—were a sergeant and two tavern-keepers, who sued him before two different aldermen for an indebtedness, amounting to $17 for board and for money obtained—as they say—under false pretence, which consisted in his promising to pay after receiving his wages from Government. At the settlement the sergeant claimed $135 out of $140.80; exacting one-fourth of the sum loaned for its use, and leaving but $5.80 for the prisoner to cancel the $17 debt. This $135 was paid to the sergeant for the use of $101.25 advanced to the prisoner within 19 days subsequent to his being paid—all of which he had spent. A ten days’ furlough was granted to him, and then he was imprisoned, as above mentioned.