THE BENCH OF MAGISTRATES.
-VCR some centuries England has got along very com- 1 fortably with a judicial system which, in its primary stage, is not patient of logical defence. In theory, the first qualification of a Magistrate is knowledge of the law, and especially of the law of evidence. He needs, indeed, other things as well. He needs common-sense, some amount of acquaintance with the habits and character of the population among which he has to dispense justice, and the power of rising above class prejudices. The English practice has been to assume that all these are found in the possessors of property, and that where this qualification is present a Lord-Lieutenant cannot go very far wrong in his selection. On the whole, this system has worked well. In former times Magistrates were often over-severe in poaching cases, but they commonly made up for this by being over-lenient to prisoners generally. If knowledge of law was not equally distributed over the whole Bench of Justices, it was usually possessed by one or two of their number. The rest picked it up, to some extent, as they went along, and there was always the Clerk to turn to in case of need. Unfortunately, the Magistracy was a subject which was sure not to be left untouched as government became more popular. A democracy is not at all impressed by the argument that what is wrong in theory may be right in practice, and when once people came to ask why the possession of some property should be taken as proof of the qualifications which fit a man to be a Justice of the Peace, it was difficult to give a satisfactory answer. Every one probably
can supply instances within his own knowledge of owners of property by whom he would not care to be judged. They may have many virtues, but they have neither the good sense nor the absence of bias which are wanted in officials who have to weigh the evidence for and against a prisoner, and to fit the sentence to the justice of the case. When this fact was alleged against the methods of appoint- ment which existed till lately, it could only be met by the plea that every system has its faults, and that our actual Magistrates are at least as good as any we are likely to find in another way. But the democratic theory is that every man is the equal of every other man. Education and habits of life go for nothing, if indeed they do not make men less fit to be Justices because of the class prejudices they are calculated to breed in them. If what is wanted is personal merit, let us take it wherever we can find it. if know- ledge of life among the richer c' uses is an advantage, so is knowledge of life among the poor. In deference to this reasoning, the property qualification was abolished, and now Magistrates are chosen, or supposed to be chosen, with reference to their worth alone.
How the new plan will work is a point on which it is impossible to have an opinion. The difficulty of choice increases with the number from which you have to choose; and now that the whole male population is eligible, what means can there be of determining between one and another? There is nothing in the change that supplies any a priori ground for expecting that better men will be found than those by whom justice has hitherto been administered. They will not be better educated, they will not have greater experience, they will not be more free from class prejudices. If a game-preserver makes a bad Judge in a poaching case, where is the certainty that a Trade-Unionist would behave with perfect impartiality towards a blackleg ? No doubt the old system had one special and almost inevitable fault. The appointments made under it did come in course of time to wear a party character. In whatever other ways property influences its possessors, it does tend to make them Conservatives. Social reforms differ greatly one from the other, but they have the common characteristic of costing money, and the money needed for them must come out of the pockets of owners of property. There are many even among the richest men who are above allowing their politics to be determined by their personal interests; but there are great numbers who are drawn, perhaps quite insensibly, to the party which, with some recent exceptions, is the traditional protector of property and the rights of property. As a result of this the County Magistracy had been recruited to a great extent from the Conservative Party, and, as soon as the property qualification was done away with, immediate pressure was put upon the Chancellor to see that Magistrates were chosen on non- political grounds. By a curious inconsistency, the form which this pressure took in the first instance WS an appeal that for the present all Magistrates should be
chosen on political grounds. The argument used was that, as there was a great preponderance of Conservatives on the Bench, no more Conservatives should be nominated until the balance of parties lied been redressed. Those who reasoned in this way forgot that if a Liberal Government began by appointing none but Liberals, the next Conserva- tive Government would be certain to appoint none but Conservatives. The one thing that is incumbent upon the Lord Chancellor for the time being is to do his utmost to get men appointed who have no positive disqualification, known or suspected. It will be hard enough to command the local knowledge necessary to secure even this-advantage, and of anything more than this we have not much hope.
It was a highly satisfactory circumstance in the recent trial of certain West Ham Guardians that the law enabled
the Judge not only to sentence them to various terms of imprisonment, but also to declare some of them for ever incapable of holding any municipal office. The affairs of West Ham may be maladministered hereafter, but at least they will not be maladmiuistered by the men who have already earned conviction and sentence. The propriety, or rather the absolute necessity, of making this a rule that shall know no exceptions does not need proof, and there is every reason for enforcing it, with yet- greater stringency, in the case of Magistrates. They may not have the same powers of robbing the community, because they do not handle so much money. But they have the far more serious power of doing injustice,— of condemning innocent men and. letting off guilty men. Corrupt Judges are common enough in some countries, and if no care were taken they might easily become common in this country. Under the old system of appointments the danger was less, because the men who were made Magistrates were known, and were kept straight, if by nothing better, by the public opinion of a comparatively -small class. But when the area of choice is widened, less will be known of those who are chosen to be Magistrates, and the influence- of public opinion will be less in proportion. It is of the utmost importance, therefore, that a close watch should be kept over the public acts of Magistrates. As the difficulty of making this kind of investigation before appointment grows greater, the necessity of acting promptly-whenever a Magistrate is publicly associated with wrongdoing becomes more imperative. It is impossible, of course, to say beforehand in what ways or on what grounds the Chancellor should exercise his power of removal. He cannot act on suspicion ; he cannot listen to mere hearsay charges ; he cannot employ the services of a detective. The cause of dismissal must be a public cause. The Chancellor must be able to rely, if not on the verdict of a jury or the sentence of a Court, at least on some strong expression of judicial opinion. When that points unmistakably to some- thing which disqualifies the man to whom it relates from exercising the function of a Judge, no time should be lost in removing him from the Bench. The old Magistracy owed its hold upon public opinion, in part, to a kind of feudal respect which did not allow of criticism on the actions of the governing class. That sentiment has dis- appeared, and the only respect which the new Magistracy can hope to earn is that which is derived from the right performance of their duties. However good this per- formance may be in itself, it will not create respect if the Magistrate has been accused of this or that offence by those who have a claim to be listened to, and has not been able—perhaps has not even tried—to clear himself .of the charge. If this sort of thing should come to be passed over, respect for law and justice will in time be weakened, and the English Magistracy be in danger of becoming a faint copy of Tammany Hall.
To sum up, the new conditions under which the Magis- trates are appointed impose upon the Lord Chancellor a special obligation to review the various Benches from time to time, and to remove from them those whose record renders them unfit to discharge the judicial function.
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