A STRAIGHT TALK on COURTS

MAGISTRATE EMILY F. MURPHY October 1 1920

A STRAIGHT TALK on COURTS

MAGISTRATE EMILY F. MURPHY October 1 1920

A STRAIGHT TALK on COURTS

MAGISTRATE EMILY F. MURPHY

EDITOR’S Note—Mrs. Murphy has been a magistrate for a number of years now, and in the accompanying article she tells of some of the things she has learned. Perhaps the most striking statement is to the effect that magistrates are pressed by the civic authorities behind them to secure a large number of convictions and fines for revenue purposes, thus perverting their work. She also tells some interesting stories of her work from the inside, with terse comment on the relations of the fair sex to the law.

IN HIS “Recollections of a Police Magistrate,” Colonel George T. Denison, of Toronto, wrote, “I may also say that I depend upon an intuitive feeling as to a man’s guilt or innocence, and not to weighing and balancing the evidence. I depend upon this feeling in spite of evidence.”

“Spoken like a woman,” said certain contemptuous critics, and yet in this sentence the veteran magistrate opens a large question.

Most police magistrates contend that their decisions have their basis solely on the evidence adduced but, when on some slight technicality, the conviction is quashed in a higher court the magistrate will usually say that if the learned judge could have seen the defendants and their manner of giving evidence the conviction would have been sustained.

In a word, the majority of magistrates in spite of their high, inflexible intent, are actually influenced by intuition, or shall we more properly say by the manner of the witnesses, their voices, and by the fleshly tablets of their faces? Colonel Denison is the first one who has dared to speak the truth.

On one occasion, when I had the honor of sitting with him on the bench in Toronto, he remarked, “I’ll dismiss this charge. I don’t like his mug,” and, as an an actual faet, the complainant to whom the police magistrate referred was a most ugly man, a loose lumpish fellow who might almost be cousin-german to a gorilla. I didn’t like him either. In truth, I felt about him what Mr. De Quincey said concerning Mr. Coleridge, that while he was probably a worthy Christian he was much too fat to be a person of active virtue.

The Case Against Eve

IT HAS always been my opinion that men are not nearly so keen on matters of evidence as they would have us believe. For centuries they have been weighing evidence as to Eve’s disobedience “to the Lord’s command,” whereas Eve received no command and was not even present when Adam received it.

John Milton must have been pinched and hurt in his mind about this slanderous imputation when he made Eve to say with an astonishing impassibility, “God is thy law; thou mine.”

Indeed, Eve’s shabby-minded posterity have been so intent upon proving this case against her that she has not been even allowed the fallacy known as “the presumption of innocence,” which every woman—or for that matter, every man—is supposed to enjoy when she comes within the jurisdiction of the police court.

To listen to counsel for the defence urging this, a newly appointed magistrate might almost believe it to be a live principle but presently one finds, as an actuality, that the woman is presumed guilty through the whole process of the law. Let her venture to walk out of custody if she desires to test this “presumption.”

As a matter-of-fact., those undergoing preliminary detention, or what we call “trial cases,” are held more tightly than others. These are kept in cells, whereas the convicts are allowed to sleep in dormitories.

If persons charged with crime are held to be innocent,

they should be securely detained in a special home at least as comfortable as a soldiers’ barracks. Surely it is highly desirable that we alter our procedure on this behalf. Only use and thoughtlessness make our present method possible.

Indemnification by the State

PERSONS not committed should be indemnified by the State for their loss of time—so much per diem according to their wage-earning capacity—just as the State pays when it takes property under the right of eminent domain. This principle is already acknowledged by the State in its remunerating of witnesses summoned to give evidence.

If the State were indemnifying all unconvicted persons it would follow, too, as a natural corollary that the vexatious and cruel delays in hearing of charges would be promptly remedied. Most of these persons are compelled to remain in jail because they are poor and cannot get bail.

That the'poor should submit to such painful pressure without even a murmur is incredible, and may be attributed to the fact that they accept delay as something which is irremediable like the lightning and the blizzard, whereas there does not seem to be any valid reason why our laws should not be altered in this respect and without any unnecessary quibbling.

On the other hand, if the defendant be rich, the delay tends to benefit him in that it affords an opportunity of either spiriting away the informant or tampering with witnesses.

The changes enumerated would appear to be imperative both in fairness and in compassion to all prisoners awaiting trial under “the presumption of innocence.” Yes! it seems quite true what a certain old writer said in his wrath

that “Justice is lame as well as blind among us.”

Another fallacious presumption pertaining to the accused woman—or shall we say to the modern Eve?—is that her declining to testify in her own behalf must not be inferred as an evidence of guilt, whereas it is almost impossible for the listener to infer otherwise. A woman who will remain mute while charged with crime has practically convicted herself, however we may try and cheat ourselves to the contrary.

Indeed, one may fairly doubt if any woman charged with a crime ever declined to give evidence except under the strictest orders of her counsel. Under the stress to which she is being subjected by the prosecution, the one thing she desires to tell is her story. Her tongue aches to tell it.

It was George Borrow who told of stopping at an inn called ‘‘The Silent Woman,” the sign of which showed her to have no head on her shoulders.

On the other hand, her taking the oath must almost inevitably lead to perjury. She is in the painful and puzzling predicament of having either to perjure or convict herself. Maybe, it would be wiser if the accused person, instead of being placed under oath, were allowed to make a statement. This would give an opportunity of crossexamination and of detecting flaws in his or her story which, after all, is the chief object of the crown prosecutor.

Confessing the Offence

BUT if a woman does maintain silence under her counsel’s orders, and if she be convicted, no sooner does this happen than she desires to confess her offence. She wants to see the magistrate or the inspector of police to know why so-and-so is not arrested, in that she, too, is committing the same offence. As a matter-of-fact, it is from this source that the detectives get the major amount of their information as to the vice of the community, and concerning the whereabouts of criminals. If the woman’s story does not reach the ears of the higher officials, then she satisfies herself with those of the police-matron. Once a woman is convicted, she does not appear to be at all disturbed by any intimate probing into her habits and career.

This may arise from the fact that, being shamed herself, she fears her erstwhile companions may consider themselves her superiors; she may envy their good fortune in escaping the toils of the law while she is drawn in; she may suspect they have “squealed” on her; that they will purloin her clothing, or annex her sweetheart the while she is locked up; it may be owing to some mental defect or emotional instability, or that she is just an irresponsible babbler unable to keep a secret.

No Secrets

ON SECOND thought, we would blot out the words “irresponsible babbler” for there is no such a thing as a secret. It is impossible for the human mind to keep anything hidden indefinitely. A secret will tell itself. A secret is irritation, vexation, botheration—a story gnawing to be told.

When we say it is impossible for the human mind to keep a secret, the words include the male mind as well as the female. It is a hoary-headed hoax, this claim that men keep secrets more securely than women. We have heard of the man who was wise enough to keep silence in seven languages, just as we have heard of the unkissed man and the primordial atomic globule, but these, as we all know, are airy nothings, the mere fanciful figments of unbalanced theorists.

Once a man nearly kept a secret. He was the hairdresser to King Midas. He dug a hole in the ground and whispered into it that King Midas had an ass’s ears.

He covered the story up carefully, but a bed of reeds, springing up, whispered the story abroad.

Secret Service Agents

FOR in truth, many of the convicts become so obsessed with the idea that their erstwhile companions are eluding justice, that they are willing to assist the police in getting a conviction. Under suspended sentence, a woman will act as a secret-service agent in the detection of almost any crime, although it sometimes happens that, having betrayed her friends of the nether world, she also betrays the police. This, of course, is to be expected and has to be taken as good-naturedly as the circumstances will allow.

In this respect, the conduct of the ex-convict may be said to approximate that of some private detectives, now called “enquiry agents,’’ who, realizing that their knowledge will be worth more to the men they are “spotting” than to their employer, sell out for a consideration. From time to time, similar maggots—the detectives who do not detect—are also found on the municipal police force but their number is not so large as popularly supposed.

Purchasing Immunity

THE same applies to acceptance of bribes. Among the Canadian police the practice is comparatively rare, at least we have no reason to think otherwise. Even if the needle of his ambitions should point this way, a constable or detective who accepted a corrupting gift knows his career is bound to be troublous and that, presently, he will find himself “resigning” with the full consent of the police commissioners, those fat, mature persons who can be so terribly inelastic.

The acceptance of a bribe is a case where lucre and luck are seldom synonymous. Indeed, it is one of those slippery secrets above-mentioned which refuse to stay hidden. Sooner or later, the rogue who gave the bribe will boast about it; will claim “protection” in unauthorized quarters; or will complain that faith has been broken with him. Nothing gives a crook greater satisfaction than to tell how he, “fixed” the police, with all the particulars of the same, and, even when charged in court with offering bribes, I have noticed that the accused seems to take a pride in theincident.

Sometimes, in my office, after her trial, while we are discussing her future, a dissolute woman will, of her own accord, clear up a mooted point which arose in her trial; will tell how she deviously deceived the court, or where a police-witness was untruthful. It is on this occasion, she will confess if she offered a bribe and with what results.

An irresponsible policeman with a head of slight cranial capacity is more apt to consort or drink intoxicants with a lewd woman than to accept a bribe from her. Indeed, occasions have arisen where such a one has been arrested and brought to stand his trial with the woman, who ever thereafter is a kind of queen and a much-envied person among her circle of loose-living companions.

One of these evil, idle “queens” who was brought in alone, smiled queerly at

her trial when the revolver she drew o n a taxi-driver was laid on the table. It was this crooked smile that led to an adjournment, and a close investigation into the ownership of the weapon. This was found to have been taken by the woman from the hip-pocket of a certain intoxicated peace-officer at two o’clock in the morning, in a Chinese noodle parlor.

When time permits, we intend to write quite a long story about the hip-pocket and howats elimination would mean almost the salvation of the race.

“Faith, ma’am,” said an Irish policeman, the other day, “some folks high up ought to make a law«agin the hip pocket. If it were not [for it, [sure an’ we’d be needin’ no jails nor gallows. Ooch [to goodness! many’s the brave lump of a boy does be losin’ his money, his job,

and his chanst of heaven all on account and by reason of his pocket. Mebbe, your Worship would be after mentioning his same for someone to get up a petition.”

B1

Magistrates Unpopular

► UT they were magistrates we were talking about when * led away to talk of secrets.

The most notable thing about magistrates in all ages has been their undeserved unpopularity.

Speaking before the young King Edward in 1549, Master Hugh Latimer, Bishop of Worcester,said, “I think we have some jf as painful magistrates as ever were in England; but I will not swear that they be all so. . . I speak as Scripture speaketh to give a caveat and warning to all magistrates to cause them to look to their offices, for the devil, the great magistrate, is very busy now; he is ever doing, he never ceaseth to go about to make them like himself.”

St. Chrysostom said, “I marvel if any of these rulers or great magistrates can be saved.”

Coming down to our own time, we find Sir J. M. Barrie describing a certain doctor as “being in that pleasing frame of mind, and as exultant as if a message had come asking him to cut off a magistrate’s leg.”

It is beyond question that there be magistrates who are reactionaries, and who interpret life from a low level; persons prim and self-conscious as undertakers, or of sour and unsocial humor but, generally speaking, and in spite of the animadversions above quoted, men who are selected for this office are of decent, and orderly soul—the “true, clean wheat” of the land.

We are coming to see more clearly that the magistrate has an especial opportunity ofr^naking public opinion, that regulator of public conduct. If he is lax and sneers at a law, the whole moral standard of the community maybe thereby lowered.

The Influence of Magistrates

CONTRARIWISE, he may rouse the community to its dangers and duties more than all the clergy and social workers therein, because of his daily intimate touch with crime and criminals.

A police magistrate is closer to the human side of his city than anyone in it—or ought to be—and sees all phases of its life. Added to this, he is in a position where his findings and opinions are recorded constantly in the local newspapers, so giving him a continuous access to the public conscience.

Nevertheless, it can hardly be gainsaid that, to a great extent, most of us are misusing our powers and neglecting our opportunities. We overlook the fact that in dealing with criminals, reformation should be our chief object, and not punishment. We are not required to blister accused persons so much as to locate the cause of their disease and remove it.

And pray how many of us come out publicly in favor of temperance enactments; in a campaign against venereal disease, or against the exploitation of girl-children for immoral purposes? For some reason all of us are strangely silent about these things, concerning which we have intimate knowledge, when it is our plainest duty to warn the public—the uninformed, unsuspecting public—from off

the rocks and hidden shoals. Our salaries are paid out of the public purse and in the strictest sense we are their servants not their whip-masters.

The power for good which is placed in the hands of the average magistrate is truly great, but it happens that most of us are overworked and have neither time nor energy to strive for the amendment of laws; to assist in the redemption of criminals, much less to deduce from our cases, and set down in writing, anything that might be of value to the public. In a word, we concern ourselves too much with the punishment of evil-doing and too little with the starting of things which would eradicate the evil.

Magistrate-Physicians

'■JpOO often our judgments are casual and insufficiently

considered, irrespective of the fact that “the greatest of all human tasks is the task of the righteous in judgment.” Magistrate-physicians (for such we should be) get through with our patients in one hearing, and have no further opportunity of learning how our treatment of the case is working out; if other treatment is required, or if the patient is cured.

It is within our power to arbitrarily commit misdemeanants to a life-in-death existence and to make what we call “the fate” of these persons. It is, therefore, astonishing how often, with a comparative ignorance, both of the crime and the criminals, we hurriedly proceed to sentence them, and then as hurriedly to forget them.

We have heard magistrates tell without wincing of the large number of cases they dispose of in a day, some owning up to scores and even to hundreds. That the heavy title of “criminal” should be applied to Canadian citizens with such sudden directness is surely abhorrent and greatly to be deprecated. Maybe, these magistrates are the potentates to whom De Quincey referred as those “who did their utmost to exalt the idea of their privileges by the insolence with which they used them.”

Having said this, we should qualify it somewhat by explaining that magistrates do not acquire this airy attitude in a day, or even in a year. It takes quite a while to succeed in out-pacing Nemesis, whose celerity in the punishment of the wicked is well-known.

Because most governments and municipal councils desire to secure a great deal of work out of a small number of people, magistrates are prodded on in identically the same manner as clerks or other officials whose work is of a routine nature. They haven’t time to properly consider what should be done with the persons or families haled before them in such large numbers and in such rapid succession.

Fitting the Punishment

THE fitting of the punishment to the person instead of t

the crime is not possible and, well, some will say not

It is legal, though, for in most eases the Criminal Code gives the magistrates power to suspend sentence should such a course commend itself to them.

Then, too, being at a large expense in maintaining a Department of Justice, governments, naturally enough, are not averse to securing convictions that will produce a considerable revenue, thus recouping them for their outlay.

Magistrates know this and, like other officials who might be mentioned, easily fall

into the habit of drawing their opinions and salary from the same source. Although far from one’s purpose, and further still from one’s heart, it is wonderful how tranquilly this habit may be acquired.

Of course, there is nothing wrong in the imposition of fines. Most convicted persons prefer to pay fines rather than to undergo imprisonment, and we only mention the matter to show how “the successful magistrate” has come to be considered as the one who produces the largest sum of money in the shortest time, irrespective of any moral or social results he has achieved, or failed to achieve. The fact that his court is neither preventive nor constructive is rarely taken into consideration, which shows that governments and councils may be fallible in the same way as you, and I, and everybody. This, then, would seem to be a good place to stop a while and recall for our legal masters

Continued on page 55

A Straight Talk About Courts

Continued from page 10

the remark so aptly made by the late General William Booth that the supreme test of any scheme for the benefiting of humanity lies in the answer to the question, “What does it make of the individual?”

The Magistrate’s Manual

INDEED, the whole matter of special training for magistrates cannot be considered too soon or too carefully. It is related that when, in 1888, a gentleman named Plowden was appointed a stipendiary magistrate in the Marylebone Police Court, he went to his chief in order that he might be instructed in his duties. "Let me see, Plowden,” remarked his

monitor, “you had better read the Pawnbrokers' Act, and gel in a supply of French novels, and 1 think you’ll be all right.”

While, doubtless this gentleman was facetious and smart, the fact remains that there are no manuals for magistrates other than those dealing with matters of law and procedure. One must always bear in mind that while it is necessary for magistrates in a court of summary jurisdiction to know where to find the law, it is equally important that they should know where to find instruction in psychology and the sociology of criminals. After a while, law schools will have special courses in these subjects for magistrates and for those students who purpose devoting themselves to criminology, with opportunities for clinical studies in jails, asylums, and hospitals. As a matter of fact, some of our universities have already initiated such courses for students in social service.

Men and women who have undergone such a course of study, apart from their technical knowledge, must inevitably acquire a wider tolerance andfullerknowledge of human nature, two qualities essential to every properly constituted magistrate. With one’s sense of decency outraged, and with anger uppermost in one’s mind, it isn’t easy to be tolerant with the fool, the criminal, the ingrate: it isn’t easy to divine the human quality behind the dull or crafty faces of the neglected and degenerate, and yet, the most astonishing thing about these unfortunate persons is the ease with which they yield themselves to healing, affirmative forces, and how they absorb the fine spiritual qualities of others.

But may be, this is not so astonishing after all, for it has been set down some thousands of years ago by an observant reporter of his time how the face of Moses shone with the lustre of his high companionship.

Courts as Casualty Clearing Stations

EVEN so, criminals should be tried in superior courts by judges who are expert criminologists, instead of by those who have to do with civil cases and who, in consequence, find it difficult to free themselves from legal bias. It would be quite a simple matter for the governments to appoint judges for this work solely. Generally speaking, in these courts, there is a tendency for criminal cases to be considered as abstractions to which purely legal methods are applied. Lawyers know this, and delay or hurry a case in order that it may come before a judge whose cast of mind, prejudice, may lead him to take a favorable viéw for the defence.

By-and-by, when our eyes have grown clearer we shall see that all criminal courts must be casualty clearing stations where the offender’s case shall be carefully diagnosed and the proper remedy applied. This remedy may mean a term in some correctional institution; a fine in dollars and cents; a remand to a mental hospital; a period in an industrial school, or a period of the “trying out” known as probation.

In beginning this discussion, we said in effect that a different law—an unwritten one, to be sure—applied where the cases of women are concerned, particularly in the case of Mother Eve who has been such a long time dead and upon whom, accordingly, it is not difficult to place the responsibility for the evil of all the world and of all the generations.

To make amends for this unchivalrous conduct, the men, our brothers, have ever been especially lax and sentimental in the courts where the misdemeanors of the Modern Eve have been concerned.

“Your sex has saved you,” is a favorite expression of the latter-day magistrate as though there were sex in sin or sex in soul, or as though that which is black for a man could be shaded into grey for a woman. This leniency, however, applies more particularly to sexual offences. Where offences against property are concerned, this is not nearly so patent. The reason for this distinction must be left to wiser heads than ours to unravel but, at any rate, the procedure here seems to nullify, in some degree, the lines of one Kipling of England to the effect that: “The sin ye do by two and two, Ye must pay for one by one.”

In our experience, we have come to the conclusion that although the number of male offenders is vastly greater than that of women, as shown by the court dockets, this cannot be considered as a fair proportion of the felonies committed by our sex,

or a fair deduction as to our moral superority.

Women as Offenders.

XITOMEN appear less frequently as i VV defendants because they are less frequently complained against. Men come in droves to the office of a woman magistrate asking for advice regarding the crimes committed by their wives, but comparatively few ever go to the length of entering 'charge. It is quite remarkable how many ¡“unprotected females,” presuming on .relationship, viciously assault their husIbands. One man with both thumbs broken by their being pressed back, explained how “the Missus” was always trying to “mess me about,” while another, with a wicked gash in his eyebrow caused by a flying cup, claimed to have been “bullyragged,” and asked us to “Just send for Violet and scare her a bit.” Than giving "in marriage, there seems to be nothing more common than forgiving in marriage.

Besides, it is harder to secure convictions against women because crimes by men are more frequently committed openly, while the woman’s part is that of complicity. She instigates the crime; receives the goods after the man has stolen them; procures the girl for his immoral purpose; or carries the noxious drugs which he disposes of. It was probably an observer of this combination who gave expression to the odious dictum, “Cherchez la fenlme.”

Having declared these things about my sex, I would mollify the hardness of them by saying that owing to the secluded nature of their lives, women have less opportunity of sharpening their wits or of hearing the law discussed.

Two girls from a rural district, both under eighteen years of age, who robbed the mail of chocolates and finery—the post-office being in their own home—were found upon examination, to have almost no conception of the inviolability of His Majesty’s mail. How could they have under the circumstances? The female magistrate could only meet the ends of justice by publically imposing a nominal fine upon them, and by privately and fluently abusing the government officials for placing a Canadian post-office in charge of a foreigner whose English-speaking daughters were obliged to carry on the business.

As a general thing, even half-wise women are curious concerning laws, and are interested in hearing them explained, but for some reason or other, our enactments are not accessible, or being accessible, are not easily understood. Departments of Justice should be required by the people to issue handbooks with a description of each breach of the law reduced to one sentence, something after the lucid manner of the Ten Commandments. May it be even

Such a provision might reasonably be expected to reduce offences by at least thirty to forty per cent. It is worth trying in any event, and would indubitably help to educate some lawyers who are unable to keep track of the new laws which are enacted from session to session.

Because we have always taken for granted that people inherit a knowledge of the laws, just as they receive the patrimony of a pug nose, we have failed to make any. provision for teaching these, other than through the costly and painful experiences of the criminal courts. This is particularly regrettable in a country like Canada, where so many strangers have congregated within our gates, and who are daily made to suffer an agony of soul because of their ignorance.

The proofs are plentiful that a vast number of offences are committed through ignorance and not at all from vicious tendencies.

Horace, the Roman poet, writing two thousand years ago, said well and truly that the average man is all that is good,

and that above all he'is sound and healthy —unless he has ajbad'cold.

Punishment for Women

WHILE not claiming any particular privileges for women where crimes are concerned, we are not unmindful of the fact that it is harder for a woman to reinstate herself socially than for a man. To this end, punishment has often to be adjusted and differently applied.

In spite of the murmuring minority, this would seem a good place to make the plea that women of experience be heard when the old penal laws are amended and the newer ones framed.

There are times, too, during certain physical crises when women, through nervousness, are apt to be less responsible, periods in which they seem hypnotised by their own hysteria, and in which they might almost be demented.

These are most difficult cases to understand or treat properly, and it is not likely we shall ever do so until the courts have the assistance of psychopaths and clinicians. _ It is the realization of one’s ignorance in such cases that makes the work of the conscientious magistrate, whether male or female, seem burdensome beyond endurance.

It must not be deduced from these remarks that we favor laxness in the treatment of women criminals, or that we deprecate custodial care for those of them who are mentally weak.

■The weak-minded are more to be feared than the wicked, in that there is no hope for them. “What is written on their forehead,” says a Hindu sage, “will be there and nothing more.” We should not allow the imbecile or the feeble-minded criminal to become a burden upon the workers lest the nation become weak. We must segregate these people till they become less numerous, making them as happy as circumstances permit, and, if possible, self-supporting.

To the criminal who is only vicious, and not feeble-minded, jails are often sanatoria where they recover their nerves and their physical strength. Many would die years sooner if it were not for the rest and healing of the prison. Besides, it gives them' a chance to break with their old companions, and to start afresh in life if so disposed.

Wages for Prisoners

T ECENTLY, the Federated Women’s A'Institutes of Canada made an appeal to every Provincial Government, and to the Federal Government, that all prisoners in jails or penitentiaries should be' paid wages and that these sums should be paid to the maintenance of their families. If the prisoner have no family, it was requested that his wages be held for him until he be released. The Institutes hold that it is unfair for the city or municipality to be obliged to support the prisoner’s family while the Province gets the results from his labor. To this end, they added the argument that, in jail, labor is imposed as a penalty, thus giving the prisoner a wrong ideal concerning it. The labor should be a means to his redemption, and something which makes for the building up or maintaining of his self-respect.

Furthermore, it is urged that by the operation of this plan deserting husbands could no longer escape their responsibility to provide the family with the necessities of life. It does a woman little good to incarcerate her husband if he is working for the State instead of her and their chil-

The replies received from each province were considered on the whole to be satisfactory but whether or not anything will be actually done to further this very desirable end remains to be demonstrated. There is so much to be said in favor of the change, it might appear that this is a question with the distinction of having only one side.