[City documents, 1847-1867]

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City Document—No. 15.

REMARKS

OF

FRANCIS HILLIARD, ESQ,

Standing Justice of the Police Court in Roxbury,

AT THE OPENING OF SAID COURT,

May 15, 1855.

BR OX UREN:
PRINLED HOR: EE CEEy COUNCIE.
1855.

City of Roxbury.

In Boarp or ALDERMEN, May 23, 1855.

The Address of Francrs Hitiiarp, Esq., was presented by the
Mayor, and 500 copies ordered to be printed.

JOSEPH W. TUCKER, City Clerk.

John M. Hewes, Printer,
81 Cornhill.

ADDRESS.

THE opening of a new tribunal for the administration of justice,
is an event of no inconsiderable interest and importance to those
over whom the jurisdiction of that tribunal is to extend; and de-
serves, therefore, some more formal notice than is necessarily
involved in the mere fact of commencing its official operations.
No thoughtful mind can glance at the occurrences, which in all
probability will take place, through a series of coming years, within
the walls of a Court of Justice just inaugurated, without bemg
somewhat impressed with a view of the great amount of good or
evil, right or wrong, justice or injustice, which it may be instru-
mental in accomplishing. As sound learning, deliberate judgment
and impartial equity, or the reverse of these qualities, shall have
the ascendency in its administration, so must it prove a blessing
or a curse to the community in which it is established.

It has been well said, with more special reference to law reports,
that they “are dramatic in their plan and structure. They
abound in pathetic incident, and displays of deep feeling. They
are faithful records of those little competitions, factions and de-
bates of mankind, that fill up the principal drama of human life,
and which are engendered by the love of power, the appetite for
wealth, the allurements of pleasure, the delusions of self-interest,
the melancholy perversion of talent and the machinations of fraud.”
These remarks are of course more emphatically applicable to the

4 CITY DOCUMENT—No. 15.

causes or controversies themselves, of which law reports are the
mere silent record. Nowhere does human nature present itself in
forms more open or better entitled to mspection and study, than
in courts of justice. The varieties of physiognomy, occupation
and character ; the eccentricities of witnesses ; the encounters of
lawyers; the grave discourses of judges; the pervading cast of
propriety and solemnity, with occasional episodes of hurry, con-
fusion and excitement; the dooming of hardened criminals, with
the not unfrequent accompaniment of the sobs and tears of those
whose confidence they have betrayed and whose hopes they have
blasted; all these circumstances contribute to make the court-
house a scene of attractive, though sometimes painful and perhaps
pernicious interest, even to those who have no personal concern in
the immediate subjects of inquiry and decision.

A Police Court, for the trial of criminal and civil causes, having,
after long deliberation, been at last established in the City of
Roxbury, it seemed right and fit to the functionaries of the City,
that the commencement of its official domgs should be made an
oceasion of public notice, and that the Presiding Justice of that
Court should offer such brief remarks as he might deem to be
suitable and profitable. |

It may be assumed, that the orderly trial of cases was one
principal inducement to the establishment of this tribunal. Order
can hardly be claimed as the prominent feature of that system of
trials, which has heretofore prevailed in Roxbury; and I speak
with the more freedom upon the subject, having myself been one
of the magistrates by whom courts have been held, and therefore
claiming title to a fair proportion of whatever criticisms I may
make upon this mode of administering justice. One obvious
remark is, that no particular place was set apart for judicial pro-
ceedings. Criminal trials were held, on successive weeks, at the
offices of the several justices—most of them also counsellors at
law—who saw fit to engage in them, subject, of course, to all the
interruptions naturally arising from this cause. Admitting, what
I have no disposition to deny, that justice was as well administered
as the circumstances would allow, it would be exacting impracticable
perfection, to claim a methodical and systematic course of procedure,

MR. HILLIARD’S REMARKS. 5

with arrangements so unfavorable. ‘The trial of civil causes was,
if possible, still less orderly. Courts have been held in various
places, by different Justices, on the same day and at the same
hour, the Judges in some causes being the counsel in others; and,
notwithstanding the respectability and capacity of both Judges
and counsel, it is a physical impossibility that hurry, confusion,
and a consequent failure or perversion of justice, should not in
some instances have been the result. This Court will have been
instituted to little purpose, unless these evils, of necessity incident
to the old methods of trial, with whatever ability or fidelity admin-
istered, shall be to some extent corrected. Let us consider for a
moment the several elements, which enter into the general idea of
an orderly administration of justice.

Very much depends, of course, upon the demeanor of the
Presiding Judge, whose Court in all its departments cannot fail to
be disorderly, unless he, as well by example as by precept, com-
mends order as its first law. No doubt, there may be false or
exaggerated ideas upon this pomt, and the dignity of a Court may
be very erroneously thought to consist im a certain magisterial
reserve, which suitably enough accompanied the robes and wigs
of a former age, but is ill adapted to the genius of the 19th cen-
tury. Still the authority of a Court ought never to be surren-
dered. Whenever it is, order also disappears, and all becomes
confusion and misrule. Among the particulars to which the grand
principle now referred to may be usefully applied in this Court,
may be mentioned the following. All causes will be entered upon
a regular docket, and tried or disposed of in numerical succession,
as in the higher Courts of the Commonwealth. While the Court
is In session and engaged in its business, loud conversation will be
forbidden, and the same proprieties of deportment exacted, which
are usually expected in forensic or parliamentary assemblies.
Counsel, officers and witnesses will address the Court, and not
each other. The former will be governed by the established rules
of opening and closing an argument, each being allowed to reply
to the other, but not to interrupt, or to prolong the discussion
beyond these limits, or to agitate a point after it has been once
decided by the Court. With regard to officers, while I would

*

6 CITY DOCUMENT—No. 15.

encourage all the substantial freedom and familiarity which long
and pleasant intercourse has promoted, they will not misunder-
stand the reasons, for demanding a somewhat more formal mode of
executing their functions in Court. More real fidelity and pro-
priety, in the performance of their responsible duties, than have
been manifested in times past, it would be unreasonable indeed to
expect or require.

Witnesses—by far the most important subordinate agency in
the administration of justice—will be required to conform to the
established rules of testimony; which, perhaps, more than any
other principles of the law, rest on the solid foundations of reason
and common sense, and have been sanctioned and illustrated by
the most profound judicial minds of England and America. While
the most searching cross-examination will be allowed, a witness
will always be protected from undue severity, irrelevant questions,
or personal imputations and attacks; but at the same time com-
pelled, under the penalties of a contempt, to answer all pertinent
inquiries. In criminal cases, where witnesses are called for the
defence, and more especially where the accused appears by coun-
sel, I shall endeavor to maintain the somewhat difficult proper
equilibrium, between the duties of a prosecutor, bound to expose
false testimony and discredit a perjured witness, and of the Judge,
who is to hold the scales even between the government and the
prisoner. :

One of the most delicate responsibilities resting upon the Jus-
tice of a Police Court, is that of deciding, whether to entertam
or dismiss the numerous applications for the original process of
the Court, in cases of alleged crime. On the one hand, a com-
plaint may be made from mere malice, or to forestall a similar one
from the accused against the accuser—it bemg a popular super-
stition, that the relative position of parties, beg thus once fixed,
can never be reversed. On the other hand, while the immediate
excitement of a recent quarrel, or a grudge of long standmg, may
be the impelling motive for a complaint, yet the complaint itself
may be well-founded, and the case may present one of those nu-
merous instances in the economy of Providence, where one sin is
made the instrument of exposing another, and adverse parties,

MR. HILLIARD’S REMARKS. i

who in different ways are the common enemies of society, through
mutual hatred most undesignedly work for the public good. In
general, if a crime is believed to have been committed, whatever
may be the motive for prosecuting it, the process of the Court
ought to issue; and the distinction between different applications
should be, that, where personal irritation or hostility is the imme-
diate incitement, a rigid prelimimary examination should be had
of the complaining party, and, if other persons were present at the
wleged offence, their statement, if possible, be obtained, before a
warrant is made. In the ordinary routine of crime, however, in
this City, the difficulties above referred to are comparatively of
infrequent occurrence. A large proportion of prosecutions are
for offences committed in the view, or within the personal knowl-
edge, of the police officers; and upon their information, under the
judicious arrangement now adopted, the complaints are made by
the City Marshal. And this leads me, by a natural association,
to speak of the kinds or classes of crime, which most prevail
among us.

First and foremost, within my own experience as a magistrate,
stands drunkenness. More complaints are made for this crime
than any other; it might almost be said, for all others. None is
more deserving of legal animadversion, for none is more dangerous
to the peace and security of society. A drunken man is found
by the police officers wandering in the street at midnight, arrested,
and locked up for the night. It is a wholesome law which gives
them this power; for if that man were left at large, who more
likely than he to fire a barn, or break into a dwelling-house, or
assault a peaceable passenger in the highway? Intensely excited
as the public mind now is against rwm-selling, there 1s perhaps
danger that rum-drinking, carried to the point of actual drunken-
ness, may escape some of the odium which it deserves. A
drunken man, it is true, is not fully a free agent, after he has
become drunken; but that is a wise as well as quaint maxim of

*The new statute relating to intoxicating liquors, provides, that complaints
for drunkenness shall be made by the arresting officer.

8 CITY DOCUMENT—No. 15.

the old common law, which terms him “ yvoluntarius demon,” and
holds him strictly responsible for every thing done during his self-
inflicted insanity. It has been well said, that ‘ intoxicating drink
first maddens, and then unchains the human tiger ;” first exas-
perates his animal passions to a point requiring more than ordinary
restraint, and then stupifies or extinguishes that intellectual and
moral faculty which alone could hold them in check; first stirs.
the winds and lashes the waves into a fury exceeding the fabulous
storm of olus and Neptune, and then cuts the cable or lifts the
anchor, which saves the frail ship of humanity from dashing itself
or others to pieces. The man who sets at large a furious dog 1s
justly accountable for all the mischief thereby occasioned; and
shall not he be held accountable, who wilfully infuriates himself
with artificial stimulants, and then emerges from his worse than
canine kennel into the highways of a populous and slumbering
city, a ready prey to the first temptation that may present itself,
to rob, to burn, or to murder ?

The sale of imtoxicating liquors is a kindred offence, prosecu-
tions for which, notwithstandmg the highly penal law upon the
subject recently enacted, are not perhaps likely very soon to be-
come strangers in this Court. If drunkenness is a serious crime,
although committed by one who from habitual indulgence has par-
tially lost the power of self-control, and become the slave of his
own appetite; ‘of how much sorer punishment shall he be
thought worthy,” who, in cold blood, and for far less than “ thirty
pieces of silver,” administers the poisonous compound, which is to
make the former a criminal and perhaps a felon! Ifa place were
kept open in this city, for the purpose of supplying to all appli-
cants -self-lighting and self-extinguishing torches, of the most
approved pattern, for the firmg of barns, or patent revolvers spe-
cially designed for the heads of officious watchmen or police
officers ; the most idolatrous devotee of the Bill of Rights would
hardly question the power of search, of seizure, and of destruction.
But to place deadly weapons in men’s hands, far less aids and
abets them in midnight crime, than to infuse fiery vapors into
their brains. “ Furor ministrat arma; madness supplies its
own implements of violence and blood.

MR. HILLIARD’S REMARKS. 9

Burglary and arson, both in their nature crimes committed by
night, are offences of which this Court has original, though not
final jurisdiction. Wherever there is an active and vigilant police,
I think very few of these, or the other higher crimes, escape ulti-
mate detection. In the first place, they are generally committed
by persons who have served an apprenticeship in the lower grades
of crime, and have thus become well known to the officers, and
are the first objects of their suspicion and attention. Then, in
eases of theft, the articles of property rarely fail to furnish some
clue to the discovery of the offender. And where, as is generally
the case, these crimes are perpetrated by more parties than one,
the theoretical abstraction of ‘honor among thieves” is hardly
proof, with all of them, against the terrors of prospective imprison-
ment and the approaches of adroit inquisition, and one often
exposes the rest. In the examination of such cases, the law re-
quiring merely probable cause, in order to bind over to a higher
Court, there seems little danger of unjustly recognizing or com-
mitting the accused, if primdé facie evidence of guilt be offered ;
such as presence at or near the place, or possession of the prop-
erty stolen; because, if really imnocent, he may almost always
prove an alibe ; and the fact, that this has become a proverbial
defence in fiction and often a fictitious one in real life, does not
detract from the weight of the unfavorable inferences which may
fairly be drawn from its absence.

Disturbances and riots will be subjects of mquiry before this
Court ; and a somewhat analogous application of the alibi doctrine
may be made with reference to this class of offences. Ifa public
disturbance commences, perfect safety from accusation, except in
the case of those who seek to suppress it, can be found only in
absence from it. But, instead of acting upon this principle, if a
casual fight occur between two individuals, others, happening to
be near, rush to the spot, not to separate the combatants, nor, on
the other hand, to take part in the affray, but simply to see the
sport. They become interested, excited and angry, and at length
they too proceed to blows. Still others crowd in, with the same
result, till, at length, as where dry fuel is heaped upon a feeble
fire, which, if left to itself, would have speedily gone out, a simple

10 CITY DOCUMENT—No. 15.

assault is magnified into a disgraceful tumult, which the whole
police force of the city is scarcely sufficient to quell. Now, m
these instances, it is domg no violence to the constitutional pre-
sumption of innocence, or to the intrinsic probabilities of the case,
to infer participation in the riot, to the extent at least of probable
cause, from actual presence at or near it, with manifestations of
interest and encouragement, and in the absence of any attempt
towards its suppression. Why were you there? is a question
which the accused must answer to the reasonable satisfaction of
the Court, before it can be judicially held that there is no prob-
able cause to believe him guilty of at least some participation in
the crime.

I have particularly spoken of these few selected offences, partly
because they are among the most frequent which will come before
the Court, and partly because, more obviously than others, they
suggest the considerations which have been advanced, in regard
to the general subjects of crime, proof and punishment. It should
be added, however, that all criminal offences, from the lowest to
the highest, will fall within the original or final jurisdiction of this
Court. It also has cognizance of all civil actions to the amount
of one hundred dollars ; exclusive, if the parties reside here ; con-
current with Justices of the Peace, if they reside elsewhere. It
would seem quite obvious, that in a city like this, with a popu-
lation at once so large and so compact, these very considerable
judicial powers should be vested in a regularly constituted Court
of Justice. Such seems to have been the concurrent opinion of
the various cities and towns of the Commonwealth; which have
uniformly, with a single exception, whenever they have approached
the size of Roxbury,—and a majority of those referred to are still
very much below it,—procured the establishment of Police Courts.
If there is any force in the political axiom, that republican power
must be distributed into the three departments of executive, legis-
lative and judicial; why should it not apply to the miniature
republic of a city? Why should a city have, as its essential ele-
ments, an executive Mayor, and a Legislature, with its upper and
lower branches, and at the same time want that third department,
which has ever been deemed necessary to give completeness to

MR. HILLIARD’S REMARKS. 1

the social fabric. If such a Court is intrinsically proper, the in-
quiry whether it will pay for itself, or require some annual outlay
for its support, hardly seems to enter legitimately into the issue of
establishing it. And now that it is established,—always supposing
it to be well administered,—should the fees and penalties pay the
expenses, this, on the one hand, would furnish good ground for
maintaining it; while, on the other, if litigation and crime should
be so far diminished by this cause, as to render necessary an
appropriation by the city, that very diminution itself would be an
abundant compensation for the annual expenditure.

Called to be the presiding Justice of this Court, I close
by expressing my earnest wishes for its usefulness and suc-
cess. However humble, it is still a tribunal of justice, and it is
fit that the blessing of that Being, in whose glorious diadem jus-
tice is one of the brightest jewels, should have been invoked upon
it. May the solemn invocation never prove to have been an un-
meaning ceremony; but, under the Divine guidance, may this
Court, so far as it shall have opportunity, always maintain the
Constitution and the laws, freedom and humanity, virtue and re-
ligion, Justice and mercy, to the latest generation.

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