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a?ia:E

INFERIOR MAGISTRATES;

OR,

Legal Pluralism in Ontario,

R. J. WICKSTEED,

Barrister, &c.

'• The dearest issue of his practice and of his old experience ''—Shak.

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THE

INFERIOR MAGISTRATES

-OR-

LEGAL PLURALISM IN ONTARIO

Previous to tli(^ '^otli Marcli, 1886, b}^ the Statute Law of
Ontario, no person could be a Police Magistrate, or Justice of
the Peace, during the time he continiuMl to practice as an
Attorn(\y or Solicitor, in any Court whatever : except such
l)ractising Attorney or SoHcitor was at tlie same time a meml)er
of Her Majesty's Executive Council, or a Judge of any of the
Supreme Courts of Law or Eipiity, or a County Judge, or Her
Majesty's Attorney General, or one of Her Majesty's Counsel
in the Law, or a Mayor, Alderman, Reeve, or Deputy-Reeve of
any Municipality. [R. S. O. c. 71, s. s. 5, 22 and c. 72, s. 4.]

In Tlie Laic Journal, of September 1st, 1885, appeared a
letter by the author, on the dis(iualifications of Police Magis-
trates and Justices of the Peace, followed in the succeeding
number byfiu'ther correspondence from other lawyers.

On the 22nd March appeared the first edition of this essay.

The Toronto Globe, of the 27th March, says, referring to
this open essay : — "Almost simultaneously with the appearance
"■ of Mr. Wicksteed's letter, the grievance, of which he justly
" complained, ceased in a great measure to exist. By a clause
" in Mr. Mowat's bill for further improving the law, passed at
" the late session of the Legislature, it is provided that no

' ' Police Magistrate, and no })artner or clerk of any Police
"Magistrate, shall act as Agent, Solicitor or Counsel in any
" cause, matter, prosecution or proceeding of a criminal nature,
" or in any case wliich may be investigated or tried before a
" Magistrate or Justice of the Peace."

But the Globe did not tell its subscribers that the principle
of which I complained does still exist, and that in an aggravated
form,— thanks to An Act for Further Improving the Lair,
(1886). What I complained of was that in Ontario, while
generally speaking, no Attorney or Solicitor could be a Justice
of the Peace : yet there were exce])tions to this rule, whereas
there ought to be none. Now, to further improre the law on
this point, Mr. Mowat, expressly enacts, 49 V., c. 16, s. 18, that
any Attorney or Solicitor who is a Police Magistrate, shall be
an exception to the wholesome rule I want to make universal.

A Police Magistrate, in tlie eyes of the law is nothing but
two Justices of the Peace rolled into one, who is paid to see,
among other things, that the by-laws of his city or town are
kept inviolate.

Tills absurdity now exists, therefore, under the Ontario
Statutes, viz., that a practising Attorney or Solicitor cannot be
a Justice of the Peace, but he may hold the office and do the
duties of two Justices of the Peace. Ontario says it would be
inconvenient, (using the euphonious expression of an English
Chancellor speaking on this point) to allow a practising
Attorney to act as a Justice of the Peace, who, in most cases,
would be coupled with a layman Avho would counteract the
obvious inconvenience. But it is an improvement in the law to
appoint a practising Attorney to be a Police Magistrate, who is
a Corporation sole, representing and having the powers of a
Bench of Justices, whose inconvenient tendencies to benefit his
own practice at the expense of the blind goddess whose servant
he ought to be, are uncontrolled by partnership with a man or
men not so tempted.

It is all the more important to preserve, without exception,
the (lolden Rule, that no practising- Attcjrney shall be a Justice
of tlie Peace or Police ^Magistrate, in view of " the dangerous
increase of summary juiisilictiou," as Samuel Warren calls it.

We ask is there any reason for these exceptions? Why
strongly har the gate, and yet remove some of the palings from
the fence c«mnected with it? Why allow a wolf to enter the fold
of the Juiliciary, because he can clothe himself in the sheepskin
of anyone of several oMces? The rule is a good one, the reason
for it is good ; vvliy defeat its object by exceptiinis directly
opposed to the law of the leading countries in the world ?
Why does Ontario alone retain this unjust and impolitic plu-
rality of employments under the guise of exceptions ? Let us
examine : 1st — The laws and jurisprudence of various coun-
tries on the subject of the (puilitications of Judges and Justices
of the Peace ; and 2nd — Consider the reasons whicli actuated
their Legislators, Judges and Jurisconsults in framing sucli
enactments, rendering such decisions, or holding such oi)inions.

In England or Wales no person shall be cai)[ible of Ijecom-
ing or being a Justice of tlie Peace for any county in which
he shall practice and carry on the profession or business of an
Attorney, Solicitor, etc. (84-35 Vict., 1871, c. 18). The same
disqualification for stipendiary magistrates (see 2() and 27 Vict. ,
c. 97). It is true that by 18 Geo, 2, c. 20 (Imp.) there are per-
sons excepted from the general rule of 5 Geo. 2, c. 18, by which
latter Act Attorneys in England are incapacitated from
being Justices of the Peace so long as they continue in the
business and practice of an Attorney — but the persons are
either those who could not by any possibility be Attorneys, or
if Attorneys, could not find time or opportunity to act as Jus-
tices of the Peace. In Scotland, under 19 and 20 Vict., c. 48,
sec. 4: "Any Writer, Attorney, Procurator or Solicitor who
may be elected to the office of Magistrate or Dean of Guild of

««;^

any Burgh, tho Magistrates or Dean of (iuild of which are ex
offioiis Justices of tlie Peace by virtue of their election to such
offices, shall, so long as he liokls any such oftice. he entitled to
act as a Justice of the Peace, provided he intimates to the Clerk
of the Peace for the County, in which any such Burgh is situ-
ated, that he and any partner or partners in husin-'ss with him
cease to practise before any Justice of the Peace C'ourt in such
county, so long as he continues to hold such office as aforesaid ;
and it shall not be lawful for him or them thereafter, and
during his continuance in office so to practise.

By the laws of France, the functions of a Justice of the
Peace are incompatible with those of a Mayor, Prefect and
Sub-Prefect, Councillor of the Prefecture, Councillor at the
Royal Court, Bailiff, any employee in the C/Ustoms. Post Office,
Public Accountant. Ecclesiastic, Notary, Advocate, and paid
Teacher. If tlie person who has been appointed a Justice of
the Peace is engaged in inconipatii)le enii)loyment, or duties,
he is obliged to give up such employment or duties within ten
days from notice of his appointment, under j'ain of having his
appointment revoked. It is true that in France these Justices
are salaried — but so are our Police Magistrates — and it might
be better to increase the fees of the Justices of the Peace if they
were deprived of holding incompatilde offices as they are in
France. (See Bioche, Dicti(jnnaire a ol. 4.)"

In the United States of America, Justices of the Peace are
elected by the people for four years, and they may be removed
in due manner by those who elected them. In this way all
malversations of office or other irregularities ai'e easilv cured
and remedied. This four years' probation in office is a very
useful provision, for "we must not, upon supposition only,
admit judges deficient in their office, for so they would never
do right : nor on the other side, must we admit them unerring
in their judgment, for so they would never do anything w^rong."
(See Coventry & Hughes' Digest, p. 833.)

«,l

Let us now consider the reasons whicli nrtiiatecl tli»' fram-
ers of the forej^oin;; enactnieiit>. Why is tlie eumulalion of
employment forliiibU'n under iill free .i;overnuirnts V Tlie gen-
eral reason a<i,ainst the phirality of <>jiipl()ynients in tlic hands.
of a single person is thattliismono^xdy is unjust and impoHtie.
By heaj)in^ ujum a small number of persons the ohjeets of
general desire, you deprive so many individuals of a portion of
enjoyment, and you take away from i)ul)lic competition so
numy rewards whieh might bea]>[)lieahle to the encouragement
of true merit. Heap three j)()rtions upon a privileged favorite,
you do not triple the enjoyment which each i)ortion separately
would have given him ; and above all you are very far from
producing the same amount of satisfaction as if you had ad-
mitted three persons to a share in the division. But there aie
more conclusive reasons agjiinst uniting any other employment
with that of the Judge. 1st — The good of the public service.
The obligation to attend daily at the Court or Chambers is
incompatible with any other jmblic duty. If he is not always
engaged as a Judge, it is necessary that he should always be
ready so to act. Give him other duties, the parties Jire exposed
to delays, and justice to the frittering away of evidence. If
your Judges have ])lenty of time for other business, they are
too numerous or their jurisdiction is too limited ; you may
learn from this that your judicial establishment is on too ex-
travagant a scale. When the cumulation of two em[)loynients
is permitted, of which either is suiUcient to occupy the time of
a single individual, the law ought to explain and set forth
which of the two does it intend that the duties shall be ne-
glected. 2nd — The danger to uprightness or the reputation fo^*
uprightness. All emi)loyments entail a diversity of social
relations and combinations of interests ; all connections are
sources of partiality. It is possible that the probity of a Judge
might not suffer from these things, but his reputation might

suffer and the confidenoe in his judgments will be weakened.
(See Benthain, Organisation Judiciaire.)

"In Jure non debet fieri aeeeptio personam in," and "A
good Judge slioidd do notbing from his own arbitrary will, or
from the dictates of his private wishes ; but he should i)ro-
nounce according to law and Justice." — {Coke.) " Le devoir
d'lni Jugeconsis^e a rendre la Justice sans avoir egard aaucune
recommandation, &c/'— (Ferriere Diet. vo. Juge.)

Plato writes : — "A Judge sits in the Judgment Seat, not to
administer laws !)y favor, but to decide by fairness ; and he
has taken an oath that he will not gratify his friends, but
determine with a strict regard to law."

Drydeu sings ; —

" My secret wishes would my clioice ilecide :
But open .justice bends to neither side."

Samuel Warren, in his law studies, very truly observes : —
" Justices of the Peace, in almost all cases, are (dothed with
power to hear and dc^terniine — combining in themselves the
several powers of a Judge, a Jury and Court of Equity : and
the manner in which their arduous duties are discharged, is
watched by the public with unfaltering vigilance — supi)lying a
pov/erful stimulus to a zealous and able exercise of their
important functions."

Would it not be well if the Provincial Government w^ere
to exercise more discretion in the selection of men to fill this
impoi'tant office, whose Jurisdiction has, in late years, been
extended very far beyond the bounds originally assigned to it.
and adhered to for centuries ?

Would it not be well also if the persons nominated to this
office w^ere to examine themselves, before accepting, in order
to ascertain if they are acquainted with the duties of a Judge,
and if they are prepared to carry them out in the high minded
manner advocated by the old Jurisconsult Pigeau in his
Procedure Civile ? [Vol. 1 p. 361] : —

'• The JiidgeH are the mouthi)iece8 of tlie laws : Uke theiii^
they ou^lit to punish and ^)ardon, without lovin*; or hatin<^ :
Hke them tliey ou^lit to he inaccessihle to every feelinjz; not in
accord with those of rif?i<l Justice.

"Sucli are in sliort tiie <luties of Ma^ijistrates ; hut they are
men, and, consequently, subject to all the weaknesses of
humanity ; and to how many dangerous rocks do they not
expose themselves ?

"In order to steer clear of them, the Judge ouj^ht to consider
himself as formed of two persons, the Judge and the man. The
latter he ought to look upon as a dangerous enemy, who, hy a
thousand wiles, seeks to take the former by surprise, by
persuading him that they are but one, in that way confounding
his motions with those of the Judge ; and endeavouring to
make him see and decide through the eyes and feelings of the
man what ought to be seen and decided through the eyes and
sentiments of the law.

''The Magistrate, convinced of the necessity for making this
distinction, examines, on the one side, what are his duties,
what ought he to do to be permeated by rule, to be indent i tied
with it, and to be in some sort, infallil)le as it is. He examines,
on the other hand, what are the frailties of man ; and con-
stantly kee])ing this double image before his eyes, when he
puts on the person of the Judge, he makes a complete subtrac-
tion of that of the man, or if he pays any attention to it, it is
only to repress by means of the consideration of the duties of
the former, the attempts which w^ould be made upon it by
the pride and corruption of the second.

"But it is not sufficient thus to know the proper bounds for
these two persons, and to intend to keep them within such
bounds ; the Magistrate will not be able to ])revent the man
from endeavouring to overleap them, and mingle his influence
with that of the law. The love of justice, knowlndge, firmness,

nttimtion and f^reatness of KiovA, are the guards which we ouglit
to place between these, so conflicting, powers, in order to
oppose to thtit of the man a force wliich will hinder hiiu from
making an attack upon the domain of the law.

•' Imbued with a love of justice as well as of law, the true
Magistrate sees nothing but through its agency : -"•:. raits only
the genius of the Legir^lation ; and not only does he put aside
all the suggestions coming from blood relationship, interest,
self-love and pride, but he even makes an entire sacrifice of his
own o[)ini()ns when they are o])posed to this love of justice. He
looks ujiou justice as so nuu'h property entrusted to him. which
he ought in conse^pience to distrilnite to each person in the
proiK)»rion iudicated by the Legislator. He knows that he
cannot inflict upon justice the slightest injury without com-
mit ling sacrilege ; and it never enters his mind to c promise
with the rule of right, lO seek a mean l)etween vice and virtue,
to make an unholy alliance with this rule, and grant favors
when he has only the ])ower to render justice.

"'Acknowledging w ithout difficulty that the intellect of man
is limited, that his own ])ersonal experience, however extensive
it may be, is infinitely inferior to the united experience of those
men who have ])receded him, he consults that knowledge which
results from the latter. This knowledge causes him to find in
the spirit of the law a decision conformable to the immutable
rules of justice, and by this means causes him to avoid the
deceits of the senses, the illusions of the imagination, the error
of prejudice, and the seductive influence of example, all reefs
upon wiiich he might be dashed if he only relied u{)on himself.

''Firm as the law^ itself, he decides always as she does ; and
favour, tlie prejudices of fainily ties, of interest, and those
which spring from disposition and temperament, have no
influence on his soul. On account of a continual mistrust of
these forces, and the greatest vigilance over himself, reason

■;

ever dominates his mind and his heart. She examines such
promptings at their birth, unravels their nature, follows them
in their progress, and keeps them within their proper bounds.
Attentive as the law itself he gives his decision when she
herself would have done so ; he gives to the examination of
the matter that degree of attention below which it would have
been dangerous to have passed judgment, and beyond which
to defer to give justice would have been to refuse it. By her
assistance he sees the matter grow, follows its growth, in order
to cut it short when it has reached the real point of maturity ;
and by this course avoids presenting to the parties the prema-
ture and bitter fruit of a blameworthy haste, or the backward
and juiceless fruit of indolence.

'* It is by the practice and union of all these precautions that
the Magistrate opposes to the haughty and intractable spirit of
man, the ever sure and infallible rule of the Jaw. Strengthened
by these virtues, the Magistrate, like a frowning rock which
throws far back the waves which the irritated floods have
hurled against it, remains firm and immoveable in the midst of
the shock of passions which hem him in, and which desire to
bury him beneath their efforts.

^ * ' Such is the conduct of Magistrates who are animated by a
sense of their duties."

See also Guyot (liepertoire vo. Juge), who thus writes :
*' One of the most necessary qualifications for a Judge is im-
partiality. Before giving an opinion in any matter whatsoever,
he ought to assure himself that there does not exist in the
recesses of his heart either passion or private affect i m for
either of the parties. The ancients, in representing Themis
with a bandage over her eyes and a balance in her hand, have
given us a just idea of the true character of a Judge. It is in
order to avoid the effects of hatred or friendship, which would
not fail to incline this balance, that the Act called Recusation
takes place. A righteous Judge will not wait until he is threap

ened with Recusation before signifying his determination to
abstain from pronouncing judgment in any case whatsoever,
because there may be grounds for Recusation unknown to the
parties interested. Nobody knows as well as he does if he is in
his mind more disposed towards one of the parties than the
other — if he does not still cherish some old grudge. One is so
inclined to find good the cause of the person one esteems ; one
is so greatly disposed to believe that he is unjust or guilty for
whom one has an aversion, that in undertaking to judge be-
tween them a man often runs the risk of committing an act of
injustice without intending it. The Judge should, for these
reasons, be very cautious, and probe his heart to its depths be-
fore giving his opinion in a matter in which the parties are
known to him."

A writer in the North American Review (vol. 57), thus ably
expresses the same idea : " The breath of an imputation can-
not obscure the mirror of justice. And this immunity is
essential to the working of the system, and to the preservation
of that public confidence in the judicial tribunals, which is the
surest guarantee of public order. The judges must not only be,
but seem just. The character which they bear is a thing of
quite as much importance for the common weal as the intrinsic
equity of their proceedings. It is little for me that a man at a
distance, of whom I never heard before, is defrauded of his due
in the Courts. But it is much for me to feel the assurance,
that, if my person or property is ever wrongfully attacked, I
shall find a just and powerful protector in the Law. Such an
assurance conduces much to the security and happiness of life,
though one may never have o< jasion to invoke the aid of this
strong champion. We say t^ at all temptations are removed
as far as practicable ; for it cannot be denied that, even in this
independent and honorable station, an avaricious judge may, if
he chooses, contaminate his fingers with base bribes, and sell
the judgment amd his own integrity, But those who lay stress

^ I

■■1

upon this danger show that they have little knowledge of
human nature. The gross temptation of a bribe may not allur®
a man to a flagrant violation of his oath, though the secret
promptings of self-interest, the desire of pleasing a powerful
friend, the hope of obtaining a re-appointment to a lucrative
office, may bias his reason by insensible degrees, and finally
lead to a judgment as iniquitous as if it had been purchased in
Court. Virtue is usually sapped and mined, not taken by storm.
Put a man out of reach of these insidious temptations, who do
not call upon him to sacrifice his honor and integrity at once
and with a full consciousness of what he is doing, but which
beset and perplex the mind with the prospect of great ultimate
good to be obtained by trifling and gradual deviations from the
straight path — put him away, we say, from these cunning
enticements, and he will angrily repel the shameless rogue who
comes in the broad light of day to buy his conscience. When
passion, or avarice, or ambition is tugging at the heart strings
a man becomes a sophist to himself, and will try all the wiles
of casuistry in order to varnish over the crime, and give it the
poor semblance of virtue. Anyone can resist ApoUyon, when
he comes in his proper shape, with horns and hoof, or as a
grovelling snake ; but the cunning Devil appears as a beautiful
woman, or a judicious friend, and the poor dupe clasps him to
his bosom and is entangled in the snare. Now the practice of
the Courts abounds with dangers of the very class which we
have here described. Perplexed and difficult cases are contin-
ually arising, in which the rights of the respective parties are
separated by the difference of a hair. So evenly does the mat-
ter lie between them, so doubtful is the rule of law to be ap-
plied to such an obscure and intricate question, that all the
acumen of a sharp and vigorous intellect can hardly determine
on which side equity and legal authority incline. Let self-
interest, in the mind of the judge, put a feather into the bal-
ance, and it will turn the scale. He must be a poor sophist, in

so nice a case, who cannot blind himself so far as to believe
that justice actually requires that decision which is most ac-
cordant with his own feelings and ulterior views.'

Shakespeare, tradition says from personal experience, puts
the following into the mouth of one of his characters ; —

*' You &re mine ener.jy, I make my challenge, —
You shall not be my Judge."

In "a discourse on the past history, present state, and
future prospects of the law," by Judge Joseph Story, it is
written ; — "Men, for the most part, are willing to submit to
the laws when faithfully and impartially administered. If
they are satisfied that the Judges are incorruptible, they
acquiesce in their decisions, even when they suspect them to
be erroneous, as the necessary homage by which their own
rights and liberties are permanently secured."

The duties of the Magistrates were laid down in no ambig-
uous language by the ancient Roman law : "Rationibus non
precibus, judices vinci debent." "Judex non debet clementior
esse lege." "Nemo debet esse judex in propria sua causa."
" Ne quis in sua causa judicet, vel jus sibi dicat." " Nemo sibi
jus dicere debet, in re enim propria iniquum est judicare."
"Judex non potest injuriam sibi datam punire," etc.

Under the old English statute, 18 Edward 3, stat. 4, the
following was the oath of the Justices of the Peace — which it
would be well to revive in the present day : " Ye shall swear
that well and lawfully ye shall serve our lord the King and his
people in the office of justice ; and that ye shall do equal law
and execution of right to all his subjects, rich and poor, with-
out having regard to any person ; and that ye take not, by
yourself or by other, privily nor apertly, gift nor reward of
gold nor silver, nor of any other thing which may turn to your
profit, unless it be meat or drink, and that of small value, of
any man that shall have plea or process hanging before you, as
long as the same process shall be so hanging, nor after for the

'[■

same cause ; and that ye take no fee as long as ye shall be
justice, nor robes of any man great or small, but of the King
himself ; and that ye shall give none advice nor counsel to no
man great or small, in no case where the King % party. And
that ye, by yourself, nor by other, privily nor apertly, main-
tain any plea or quarrel hanging in the King's Court or else-
where in the country. And that ye deny to no man common
right, by the King's letters, nor none other man's, nor for none
other cause ; and in case any letters come to you contrary to
law, that ye do nothing by such letters but certify tlie King
thereof, and proceed to execute the law notwithstanding the
same letters. And that ye shall do and procure the profit of
the King and of his crown, with all things wlie^o ye may rea-
sonably do the same. And in case ye be xiom henceforth found
in default in any of the faults iforesaid, ye shall be at the
King's will of body, lands and g:oG Is, thereof to be done as shall
please him. As God help you end a!l saints."

In more modern times we tin'l Couchot writing in the
following manner in his " Praticien Universel" (Paris, 1747) :
"When you are fully confirmed as a Judge, you must shew
respect unto decency in your habits, and be assiduous and ever
ready to render justice in the places and at the times custom-
ary, receive no presents, judge according to the laws, and
never act apart from them in order to give your private opin-
ion, supply the deficiences due tc' the ignorance of the attorneys
and the parties, and never abuse your authority, listen with
patience to the barristers, read their writings, and punish with
severity those who speak falsely."

In the Canada Law JouRNiiL, of the 15th September, 1885,
there appeared a letter containing the following sentence : —
'* If there be any evil in permitting barristers and solicitors to
act as police or stipendiary magi strates the general public seem
not to have found it out as they have not complained of it.''

But the force of this statement and remonstrance is completely
deadened by the (almost) certainty that it was written by the
partner-in-law of a police magistrate, penned by a lawyer who
openly practiSfes with the " beak" in civil cases, and who, no
doubt, advises their clients to appeal for justice to the petty
criminal court over which his partner presides. Opposed to
this interested letter I have the honest and direct testimony of
many lawyers and laymen who state that the simultaneous
holding by one person of the two offices of lawyer and judge is
incompatible with decency, and they ought to be separated.
Besides, the general public referred to most largely consists of
the poor and laboring classes who have not the time or money
to complain, but bow in compulsory silence to the decisions of
Janus- Magistratus. Should this my pamphlet fail to move the
Provincial Government, I shall forward a petition to the Legis-
lature praying for what I do herein, — and I am certain that it
will be found to be signed, if not by the general public, at least
by the public in general.

It might appear that an honest magistrate was fully pro-
tected by the law from the violence of disappointed suitors ;
and that honest people were protected from the giving of
unrighteous judgments by partial justices of the peace. For
Lord Mansfield, C. J. said : " No justice of the peace ought to
suffer for ignorance where the heart is right : on the other
hand, where magistrates act from undue, corrupt or indirect
motives they are always punished by this court. (Queen's
Bench)." And Abbott C. J. declared : "In all cases of an
application for a criminal information against a magistrate, for
anything done by him in the exercise of the duties of his office,
the question has always been, not whether the act done might,
upon a full and mature investigation, be found strictly right,
but from what motive it had proceeded ; whether from a
dishonest, oppressive or corrupt motive (under which descrip-
tion, fear and favor may generally be included), or from mistake

or error : in the former case alone theyWve become the objects
of punishment. To punish as a criminal a person who in the
gratuitous exercise of a public trust, may have fallen into error
or mistake, belongs only to the despotic ruler of an enslaved
people, and is wholly abhorrent from the jurisprudence of this
kingdom."

And in Fisher's Digest, Vol. 4, page 1182, we find a decision
that " Any direct pecuniary interest, however small, in the
matter of enquiry, disqualifies a magistrate."

Now the temptation to ' ' act from undue, corrupt, or indirect
motives " is very feeble in the case of the single-barrelled J. P. ,
but very strong, in fact irresistible, in the case of the double-
barrelled magistrate. The latter is a man who is obsequious-
ness itself towards his neighbors when practising as a solicitor,
but brusque, insolent and unjust when dealing from the Bench
with those, or the interests of those, whose names are not in his
office ledger. Besides it is very hard to prove undue, corrupt,
or indirect motives or malice, or pecuniary yiterest,— the
badly-treated defendant, in most cases, is poor and wants
friends and assistance to prove his charge against the J. P.

But much worse is the position of a wronged plaintiff or
complainant. For if, instead of convicting the defendant, the
justice refuse to convict him, and dismiss the case, there is no
mode of reviewing his decision; ' ' the court (Queen's Bench) will
neither grant a mandamus, requiring the magistrate to re-hear
the case, nor award a certiorari to bring up the proceedings."
I never could see why the Plaintiff should not be allowed to
consider himself aggrieved by the decision of the magistrate
and have the privilege of appeal allowed him,— but so it is.
Away with the present system of dual representation by Police
Magistrates, and spare the long suffering public the sight of a
P. M. adjourning a case abruptly, when numbers of un-
examined witnesses had made sacrifices to appear before
him, One of the said P. M's own cases was pending in a

rnore forgotten,
1 the magistrate's duty was o«<f ^ ^ suffer
Wgher court and the m^.„j^ted. They^ j„, Mr.
and the terms of Ins com ,y jranc ^ ^. ^^^

as we do and ^rri,e J»«api^~-yVir eminent

--^ ^" rXt' ^^Hthis'consummationin;^; w^^
manners and customs ^^^ =^ Jj^antroduction

further quote >n j^^^consult taken ^om^ ^^ ^

fr;t'-"S L^SoTc^ sJ^rai virtues inthe same
judge is the result of ^^^.^^^ ^.^^^^

individual. ^^^ layB claim to tm k ^^^^^^j

"^n'^ rS PO sees a rectitude of h^^*^^^ fi^„ess,
ought not only to po ^^^1, an mimo

integrity, ^-* -;;;:;i h a universal P-^^^^^^auct which
^th're'TprS:!:^ ^ahits, to pre-v- ^^^^^^^

:Ka-^^-trre":s:^^^^-^r ri^^ctse of a

private citizen, as a me^ ^^^'^^^f !„,"ldndifferent.

^ . ' The people ««^""' ^^e, obedience is compie

---r'aSt--^^ r'^zir^^ -^^^^-^^^'

i ft general , ^"^ , r,-^ «nfth by earning ^°

- only --iSrUroadiaU-n^*,, ^^ .^^,,,,,

^hich is only bestow ^^ ^^^ ^f "1 those also of the-

"^''°'' to toi qualities of the heart, thos
ought to jom to these q

■ i

intellect, in order to acquire a c<)in|)lete knowledge of everything
connected with his o(Hce. He ought to make use of it in per-
forming liis (hities, to wliicli lie cannot <levote himself witli too
much ardor, nor with too mucli assiduity."

I Iiave now set fortli tiie theoretical rules of conduct for
Magistrates and Judges, and also the legislative enactments
giving all the force of punitive law to jirovisions in accordance
with these dicta of wisdom ; forbidding certain acts and limit-
ing the ollices and employments of those hoLling the responsible
position of Judge or ^Magistrate. Space forbids my enlarging
further ; but I may conclude by saying that these maxims,
sayings and rules of wise men, these statute laws, ordinances
and judicial decisions are not axioms or self-evident truths.
They are the result of synthetic reasoning, or the conclusions
obtairned from experience. Nearly all laws are, in a sense, ex
post facto, they are remedial or made with the intention to
counteract and remove certain evils.

In Crreat Britain, France, and the United States, irregu-
larities and mischiefs were found to arise after uniting any
f)ther emjiloyment with that of the Magistrate and Judge.
Moralists and jurisconsults wrote against the union, and legis-
lators ado])ted theii suggestions and forbade the banns.

The Province of Ontario still permits Attorneys, Queen's
Counsel Iccu-ned in the law, and others, to practice their profes-
sions an<l engage in other pursuits, and at the same time exercise
the grave duties of a Police Magistrate. It is to be hoped that
this anomaly will cease and determine by an Act of the Legis-
lature doing away with all exceptions — enacting that a Police
Magistrate shall be a Police Magistrate and nothing more. It
woidd be superfluous to argue that this is a consummation
devoutly to be wished. Men are the same everywhere, and
at ail times. If abuses sprang up in Europe, and were checked
by a similar Act on the part of the governing bodies— by an
arginnentam ad honiines, without further enciuiry, Ontario

18-

should have Buch a measure passed. But we all know that the
very abuses and immoralities practised in Europe, wherever a
cumulation of employments was and is permitted to the Judge,
exist at the present moment in Ontario. The same temptations
to a Justice of the Peace to deliver a wrong judgment and
deviate from the straight path abound, and we know that thrv
are not always successfully resisted.

RICHARD JOHN WICKSTEED.