Persons visiting the County Prison, are struck with the evidence that
abounds of some great defect in the system of primary justice in this
city; and the evils so justly and so greatly to be deplored, are often
unhesitatingly referred to the incompetency or malfeasance of a portion
of the magistrates by whom the vagrants, the drunkards, and the
violators of the public peace are committed. Without offering an opinion
at present on the question, whether we owe the results of which we
speak, to the ministers of justice, or to the system upon which they
receive their office, and discharge its duties, we are certainly right
in saying that any attempt to alleviate the miseries of public jails,
must first grapple with the administration of primary justice; must
begin with creating a respect for the officers of the law, and must
satisfy the accused that the object of arrest is not so much the profit
of the magistrate as the benefit of society; and that while the balance
is held with a clean and steady hand, the costs are imposed less for the
benefit of the magistrate than for the punishment for a violation of the
law and the improvement of the offender.
But before we can hope for any amendment of the system, we must enable
the public to comprehend the reality and the extent of the evil which is
deplored, and which it is the object of the friends of sound justice to
correct.
The “Station-House” and the County Prison are crowded with persons who
do not feel that they have done an injury to others, or at most, they
think their offence is of a most venial kind. The offence of “vagrancy”
is so undefined, that it is easy to commit almost any idle person upon
such a charge, and equally easy to let him go. “Disorderly conduct,”
which appends to the offence of drunkenness, the punishment of a month
confinement instead of a day is so uncertain in its character, that the
jubilant politician is in danger of imprisonment if his huzzas are
strengthened and multiplied by even moderate potations. And “disorderly
house” is made to cover all kinds of disturbances between singing loud
to a crying child, and the repeated orgies of drunkenness and
prostitution, just as “misdemeanor” includes all indictable offences
below actual felony. And “abuse and threats,” that formerly expressed
something definite, now fill the commitment with most undefinable
charges, and the cells with most astonished and astonishing inmates.
The whole system of magisterial justice has, in this city, fallen into
disrepute; and those who are the objects of its penalties, seem to lose
respect for its ministers and their ministration, and to regard arrest
and imprisonment as a misfortune which is as likely to fall upon one as
another, if poor, and which therefore justifies any effort to evade the
penalty.
This was not always so; we speak of the estimate of aldermanic justice.
There never was a time when vice and crime did not abound in a great
city, and, consequently, if respect for public rights exists, and a
necessity for order is admitted there is likely always to be business
for the police, and cases for the magistrates. But there is a mode of
conducting both arrests and “hearings,” that makes the difference in the
proceedings and their effects. And when we shall have looked a little
more into the details of the matter as they are presented, we shall not
only see the cause of the evils which we deplore, but shall rapidly and
easily arrive at a conclusion with regard to some of the means which are
to be employed to alleviate the miseries of public prisons, and thus see
that the subject of which we now treat, is one that directly connects
itself with the aims of the Society, and that it demands from us an
opinion of the evil which it involves, and a consideration of the plans
which may be suggested as a remedy.
The small income from the office of Alderman in this city is augmented
by a salary allowed to six of them, who may happen to be of the right
kind of politics to ensure their claims upon Councils to be elected
Police Magistrates. The changes which the Charter of the City has
undergone by amendments and substitution, have left Philadelphia in an
anomalous situation with regard to offices. Every ward in the city has
one or more Aldermen, who possess now little else than the functions of
a justice of the peace. And the roll of officials bears also the name of
a “Recorder,” yet that functionary has few if any other relations with
the city government than has the humblest of the Aldermen; or if he has,
it is some remnant of ancient obligation to do service never required,
or to demand fees seldom paid to him. No one can deny that the present
Recorder discharges well the duties of a justice of the peace, so far as
his power extends; but no one will say that the office is essential to
any branch of justice in the city if all others are well executed.
We speak now rather in abstract, but it may not be out of the way to
say, that the citizen who occupies at present the place of Recorder,
seems to illustrate the idea of an efficient magistrate, as, without any
particular call upon him, he has been a terror and a scourge to evil
doers, and thus he magnifies his office, and makes it honorable.
The report of our Prison Agent, extracts from which have been given,
shows to what an extent the evil to which we allude has already
extended. His labors procured the release of more than a hundred persons
every month. Now, though in many instances the prisoner thus released
may have violated some law, and thus have rendered himself obnoxious to
the penalties of the statute, yet in a greater part of the committals,
investigation shows that the idea of just convictions did not enter into
the complaint, and that the magistrate might have caused a settlement of
the matter, without recourse to incarceration, in the infliction of
fine; or at least it would be easy so to amend the laws of the State as
to empower the magistrate to deal thus with the accused. Much the
largest part of the commitments, however, are of a kind that do not
often come to the knowledge of the Agent, but are referred to the
“Visiting Inspectors” of the Prison. These are for drunkenness,
disorder, breach of the peace, and vagrancy; and as an Act of Assembly
gives to the Inspectors of the Prison the power to discharge persons
committed for such offences, it follows that many committed for thirty
days are released before the expiration of their term. Intoxication is
charged, and the miserable offender is sent to the prison; perhaps a
family is dependent upon his or her labor, or an infant needs the
nourishment, which only a mother can afford; and the miserable mother is
suffering from an excess of that from which only an infant can
ordinarily relieve her.
An innocent woman has often been taken up in a grand swoop which a
spasmodic effort of the police has made, and she is included in the long
list of commitments as drunk, or a vagrant. Many of those who were
guilty of the lower offences charged against them receive no good from
their incarceration, and society is not benefited by their removal from
the labor which maintains them and a family, and the imprisonment
devolves upon the city the expenses of the support, often both of the
offenders and their families.
A considerable portion of the community that have acquaintance with the
prison by commitment, are of a class that think all personal redress,
and all protection from wrong, and all safety from the consequences of
their own misconduct lie in an appeal to the magistrate, and a trifling
quarrel in a neighborhood frequently leads to the arrest and
incarceration of the principal members of several families, and the
offending and the offended parties are often seen withdrawing from the
contests of hands and clubs, and contending in a foot race to see which
shall first enter complaint before a magistrate. Often in these matters
both succeed; each contrives to get his antagonist into prison, and
mulct him in costs. Occasionally it happens, that “the race is not to
the swift;” success is found to depend on the possession of the means to
pay the first cost of the action. Perhaps the most painful, because the
most unrighteous, of this kind of suits, are those in which a
quarrelsome drunkard, having beaten his wife, proceeds at once to the
magistrate and charges her, on oath, with assault and battery, or with
assault and threats, and the poor woman comes down to the prison with
her head bruised, her eyes blackened, and her whole frame bearing marks
of the outrageous injury inflicted by her cowardly, drunken husband,
who, after a few days, finding his household matters in some derangement
for want of a female head, obligingly releases his wife from prison,
till his time for another debauch has arrived. Nor is it to be denied
that the drunken wife often, very often, brings the husband into similar
difficulties. In some of these cases a magistrate might, by
interference, mitigate a portion of the misery which is inflicted, and
by his friendly advice prevent much that usually follows.
This constant resort to litigation in those who have no “cause” but what
they create of themselves, is one of the crying evils of the times. The
facility of a warrant, and the knowledge that the facility results from
its price, cause a large portion of the cases which reach our courts of
justice, or are settled, “with costs,” between the Alderman’s office and
the jury-room.
Another class of cases is found in the prison—that of disorderly houses.
Now it is well understood that the term “disorderly house,” has a
specific signification when connected with a charge before an Alderman;
yet, on enquiry as to the character of the “disorder,” it frequently
happens that the offenders were in the exercise of customary rights in
their own apartment. Singing, perhaps, or talking loudly; or, it may
happen, that not even such disturbances are mentioned. But the
proprietor of the house, usually an under-letter, can do better with his
contracted premises by a larger rent, or more ready collection, he
therefore incurs the cost of magisterial interference, the tenants, he
knows, cannot find freehold bail, they will sell a part of their goods
to pay back rent and cost, and for the sake of exemption, or release
from confinement, will agree to leave the rooms, and thus the prosecutor
secures the first object of his unjust movement, and is saved also the
cost of a defeat in court.
The number of persons committed on the charge of “disorderly houses,” is
astonishing; especially when it is considered how many “disorderly
houses” remain unvisited, and the occupants not arrested. But we must
not forget the fact, that the movement of the magistrate in these cases
is sanctioned, perhaps required, by the solemn oath of the complainant.
With these remarks we are led to the consideration of the subject with
which we commenced this part of our Report, namely, THE MAGISTRACY, and
their alleged complicity in the evil which we deplore, and which we
would diminish for the sake of the miserable victims of temporary power,
and for the sake of the credit of our community.
On all sides we hear the complaint of the character and conduct of the
Aldermen of the city; many of them, it is stated, use their office to
extort from the unfortunate poor, a portion of their hard earnings, and
thus deprive the homes of the laborer of the little comforts of which
they are susceptible. They entertain complaints, it is said, of acts
which need not be construed into offence against the law, and thus
encourage litigation, and perpetuate feuds among those whom it would
seem to be their duty, as magistrates, to “keep at peace with all men.”
We have already enumerated and repeated the classes of cases which most
encumber the dockets of the Aldermen, and which are made of more
importance than they deserve by the effects on the income of the
magistrates which these causes produce. But the enumeration and
repetition alone of these would not be a part of the duties of this
Society, or form a portion of this Report, if they did not suggest a
call for remedy. It is not the evils of prisons that constitute the
object of this Society, but the melioration of those evils.
Taking, then, the existence of the evils, as we have only hinted at
them, and admitting (as we are free to do, and as we do with pleasure,
because it is just) that while the cry against the magistracy is
universal, the fault is really found in only a part of them, the inquiry
is, “how shall all this be remedied?”
“_Elect better Aldermen_,” say those who wish for a better state of
things. “Elect suitable men, and the evil is at once remedied.”
Undoubtedly the plan is good; but is it practicable? For many years the
Aldermen of Philadelphia have been elected by the people, and in many
instances the choice has been judicious, but in others either the
official conduct of the magistrate has deteriorated into the grossest
kind of improprieties, or he has been compelled to give place to some
greater favorite of the voters of his ward, who would begin his
descending march some grades below that at which his predecessor closed
his career. So large a portion of the duties of the Alderman who has
most to do as a police magistrate, are beyond the knowledge and sympathy
of the respectable portion of the community, that little interest is
taken in his election by those who feel a sense of shame at the
improprieties of a functionary connected with the administration of
justice; and in many parts of the city the knowledge and sympathy of
that class would avail nothing towards the election of another person.
The Grand Jury recently inquiring for the city and county of
Philadelphia, made the following severe strictures upon Aldermen:
“It has been a matter of exceeding regret that the law has not
clothed this body with discretionary power to tax the magistrates,
before whom the cases were heard, with the costs, as a proper rebuke
to that avarice which seeks to convert litigation and contention
into a source of gain,—which offers a premium for crimes, by making
the ministers of the law the transgressors, and prostituting the
province of peace-makers to that of a common barrator.”
As the Grand jury did not, of course, desire to be directly personal
when they were not about to find a bill, they let their censure take a
general course. They set forth an evil, and that, perhaps, was enough,
till some special case of wrong should be laid before them.
But the alleviation of the evil—the remedy. It is evident the remedy is
not in the ballot-box—the root of the evil lies far back of that; nor is
it in the statutes of the Commonwealth. The Constitution of the State is
in fault; and until that is modified, or till some act of the Assembly
can be passed superseding the Aldermen in their special police duties,
we cannot hope for any diminution of the evil. The Aldermen of the city
are elected by the voters of their own wards, and he who can command the
most votes, can, if he desire it, be chosen Alderman. No man of wealth
seeks the place,—no man of business habits asks for a nomination. The
rewards of the office are, at best, below that of ordinary business; and
the distinction which the place confers is not that which gratifies the
wishes of the ambitious. But the place is coveted and obtained, its
emoluments spring from the fees paid by those who come or are brought
before the magistrate. If his business is multiplied, his profits, of
course, are increased; and as he sought the place for the means of a
living, he must avail himself of the capabilities of the place to
augment those means. If people will “sue and be sued,” if people will
fight and go to law, if neighbors will quarrel, and then drag each other
before the magistrate, it may seem, to the functionary, rather a
thankless exercise of his ability, to recommend such an adjustment of
the case as will deprive him of the fees of office, by which he lives.
And while most philanthropists would applaud the magistrate who sat to
reconcile rather than to punish,—who dispensed with his fees while he
dispensed kindness and affection rather than justice,—it is probable
that the family for which he was bound to provide would have to look to
some other means of support than those supplied by the man who looked to
the peace of the neighborhood rather than the augmentation of fees. And
it may as well be added, that the magistrate who should thus employ his
functions, would soon fail of objects, provided another alderman could
be found who would grant to passion its first demand. For it is evident
that most of the complaints that come before our aldermen are brought by
those who seek to gratify personal animosity and a sudden desire of
vengeance rather than any wish to punish the wrong-doer for the sake of
right. We must take men as they are, not as we could wish them to be. We
must recognize in the office of an alderman the means of support for the
incumbent and his family; and while all around us, men are exercising
their talents and taxing their ingenuity, to gain wealth by the
advantages which the law allows, we must not suppose that the alderman
is to sit in magisterial quiet, and suffer the vails of office to escape
his grasp, when they are the fruits of a labor sanctioned by law or
warranted by official custom.
If we would remedy the evils about which so much has been justly said,
and concerning which the Grand Jury has spoken so plainly, we must do
something more than talk and complain.
We have already said the evil finds its source and sanction in the
Constitution of our State. The change of the whole mode of supplying the
magistrates and judicial officers, that was wrought by the present
Constitution, may have corrected some evils: the general question is one
which we are now not called upon to discuss; but we may say, that
experience shows that nothing has been gained with regard to the
administration of justice in the magistrates offices of our city.
Twenty-five years experience shows that none of the evils complained of
in this department have been diminished, while most of them have been
augmented, and new ones added to the list. This seems almost a necessary
result of the system, and thus calls for prompt, effective remedy.
What is required in Philadelphia, is a class of Police Magistrates, with
a salary that shall secure and compensate the services of competent men,
who shall have no pecuniary temptation to commit any person brought
before them, and whose character and condition shall give weight, no
less to their decisions than their recommendations. Placed by the tenor
and fixed reward of their office above dependence upon those who shall
demand justice in others, or receive it in themselves, they shall not
shrink from their duty to condemn, more than from their sense of
propriety to discharge.
Of legal qualifications we have little to say. The layman, fitted by
character and ordinary education for the place of police magistrate,
might soon become sufficiently learned in the law and requirements of
his place, to discharge with fidelity and success the duties thereof. A
considerable number of those now holding the office of Alderman, and as
such elected occasionally as Police Magistrates, show themselves
competent to all the duties of their office, and worthy of the position
which would be opened to them, should the reformation that we suggest
ever be made. It is not always the man,—it is the circumstances in which
he is placed; it is the necessities of nomination, the demands of the
election, and the condition into which the office has been brought, that
hinder some in their attempts at good, and deprive the city of benefits
from the services of those who, under other circumstances, would promote
public order, and acquire honor by their administration of justice and
their exercise of humane powers.
And while so much freedom has been exercised in censuring the official
conduct of some of the Aldermen of our city,—a freedom that is suggested
and can be sustained by facts,—it is due to the cause of truth and
justice to repeat emphatically what is readily admitted above, that many
of the magistrates are eminently deserving of commendation, as well for
the abilities they possess, as for the use to which those abilities are
applied in the discharge of their vexatious duties. And it may be added,
that some of those who have been most censured, have shown themselves
possessed of good feelings, and amenable to the requirements of courtesy
and humanity. The system is in fault; and till that is changed for the
better,—reformed altogether,—we cannot look for any considerable
improvement in the administration of justice in police offices. For it
is a lamentable fact, that such is the want of confidence in some of the
magistrates, that the decisions of the able and the good are treated
with a distrust most dangerous to public order.
Our judiciary, from the lowest offices to the highest, was derived from
England. The names of the officials, the cause of their proceedings, the
rules of their action, are all from the parent country. If we have not
derived from these all the benefits which might be expected, and all we
see England enjoy, it is worth while for those interested to inquire
what has disturbed public opinion, what has weakened public respect,
what has augmented the law’s delay, or what has strengthened the general
opinion of its uncertainty. So far as such feelings, if any such exist,
may connect themselves with the “courts of record” of our State, it is
not the object of the present Report to discuss the cause, to point to
their extent, or suggest a remedy. But we have legitimately before us
the evils of a bad system of minor justice, and we are therefore right
in suggesting a remedy.
The progress of society abroad suggests remedies for evils which it is
the duty of the people of this country to consider. And the mode of
administering justice in police courts in London, eminently deserves the
attention of those who deplore the deficiency and seek for a substitute
in Philadelphia. It is simple, easy, practical. Magistrates of
established character are appointed, to hold office during good
behavior. They have a salary ample to maintain themselves and a family.
Their office has with it something of the character of the Court of
Sessions, and thus there attaches to their persons an idea of judicial
dignity, which is to be respected on the police bench, and which
respects itself when in the world. These officers are not tempted, by
inadequacy of income, to augment the business of their office, that they
may profit by costs or compromise. Those who are compelled by business
or misfortune to appear before them, feel that respect is due to the
administration of justice in its incipient stages, and a large portion
of those who are charged with the violation of law, appeal with
confidence to those magistrates for summary proceedings, (which the law
there allows,) in preference to the delay which would attend a reference
of their case to a jury. Such a power on the part of the police
magistrate is found most advantageous to justice in London, resulting in
great saving to the city and county, without lessening the terrors of
the law,—rather augmenting them by the promptness of punishment.
Should the Legislature of the State be disposed to remedy the existing
evils in this city, by providing for an alteration in the Constitution,
by which the mode of acquiring, and the terms of holding, office by the
Aldermen shall be changed, it is possible that an enlargement of power,
such as we have noticed in the London magistracy, would be granted, so
that justice would be promptly as well as carefully administered.
We have, in this chapter, touched upon one disturbing element, and we
have done it with no view to cast indiscriminate odium upon any citizen.
The evil to which we have adverted, exists. The great cause, however, of
the evil, we have shown to arise out of the Constitution of the State,
or from a deficiency of legislation. We lack no talent in this city for
judicial or magisterial place; but we have failed in attempts to call
those talents into the best exercise, and to insure to them the highest
public respect.
There is, however, another disturbing cause, which we must look at
steadily, if we would understand its bearing on society, its influence
on morals, and especially its connection with the subject of prison
occupation and prison discipline. And especially ought we to present the
subject in immediate connection with a consideration of the Magistracy.
It is _Intoxication_ that crowds the police office and the alderman’s
tribunal. Hourly is the magistrate called to commit or fine the violator
of the law of temperance. The miserable wretches come into his presence
without power to discriminate between right and wrong, with no command
of their own movements, and no sense of propriety with regard to conduct
or conversation; and complaints are sometimes made that these creatures
are not treated with suitable consideration. Let us, when we consider
the duties and conduct of magistrates, not overlook the disgusting
materials to which they are to administer justice, nor blame them if
they sometimes suffer the prisoner to hold the rank which he assigns to
himself.
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