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Full text of "[City documents, 1847-1867]"

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City Document — No. 15. 



FRANCIS HILLIARD, ESQ,, 



AT THE OPENING OF SAID COURT, 



May 15, 1855. 




ROXBURY: 
PRINTED FOR THE CITY COUNCIL. 

1855. 



Citg of $i0*{fttrg. 



In Board of Aldermen, May 23, 1855. 

The Address of Francis Hilliard, Esq., was presented by the 
Mayor, and 500 copies ordered to he 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 being 
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 inspection 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 doings should be made an 
occasion 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 point, and the dignity of a Court may 
be very erroneously thought to consist in 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 entertain 
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 being a popular super- 
stition, that the relative position of parties, being thus once fixed, 
can never be reversed. On the other hand, while the immediate 
excitement of a recent quarrel, or a grudge of long standing, 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. 7 

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 preliminary examination should be had 
of the complaining party, and, if other persons were present at the 
alleged 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 rum-selling, there is 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 " voluntarius daemon," 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 iEolus 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 is 
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 intoxicating liquors is a kindred offence, prosecu- 
tions for which, notwithstanding 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 ! If a 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 firing 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. HILLIAKD'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 
cases 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 prima facie evidence of guilt be offered ; 
such as presence at or near the place, or possession of the prop- 
erty stolen ; because, if really innocent, he may almost always 
prove an alibi ; 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 inquiry before this 
Court ; and a somewhat analogous application of the alibi doctrine 
may be made with reference to this class of offences. If a 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 suflicient to quell. Now, in 
these instances, it is doing 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 



MK. HILLIAED'S REMARKS. 11 

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.