The Online Library of Liberty

“Tempora mutantur—sed non mutamur in illis.

Integrity is certainly one very important qualification in a magistrate; but activity is another. It is a misfortune that the different means calculated to ensure these different qualifications should unavoidably, in some degree, counteract each other.

When much trouble is taken, some recompense must be given. The difficulty is, so to connect the recompense with labour, that the former shall serve, as a sufficient motive for exerting the latter to all good purposes, without serving, at the same time, as a motive for exerting it to bad ones.

That mode of recompensing which annexes the emoluments separately to each article of service done, to each instance of authority exerted, is attended with this disadvantage: that by tempting them to multiply, as far as it is in their power, (and it is to a great degree in their power,) the occasions of exerting it, it is a snare to their integrity. In this way, they have an interest given them in making business; in employing their activity to other purposes than the interests of justice may require. But on the other hand, the other mode of recompensing, which annexes the emoluments to the exercise of the authority in gross, in the form of a stated salary, is very deficient in its operation as a spur to their activity. A stated salary is indeed a motive to a man to take upon him the authority, (which is, in truth, no more than what the dignity annexed to that authority might of itself be a sufficient motive to,) but is no motive to the exerting of it in any given instance. Recompense, to be a spur to labour, must keep pace with labour. When the reward is the same for doing little, as for doing much, the indolence or other seducements attendant, in a greater or less degree, on every man, give them more or less an interest in evading business.

It must, however, be acknowledged, that the appointment of stated seasons of attendance, at which the magistrate should be bound to be in readiness, business or no business, would go a great way in obviating the danger of inactivity, and that the plan of rewarding by settled salaries would be rendered by this means considerably preferable, upon the whole, to that of rewarding by occasional fees of office. When a man is on the spot, or obliged to be on the spot for a certain time, when the chain that drew him aside to his particular pleasures, or particular business, is necessarily broken, it is as easy for him to apply as not: he may as well do the business he goes there to do, as do nothing.

The settled mode of recompense succeeds, we see, to admiration, in the instance of men in the first rank of magistracy, who have an ample salary, and a high dignity at stake: and who have the eyes of the whole public, and particularly of their own critical and intelligent profession fixed on them, to detect any instance of neglect, and the mouth of the public and of that profession wide open to proclaim it. But such pledges of punctuality are not to be had in the service now under consideration.

In this case, the two modes of recompense being still liable to opposite objections, an idea that might possibly suggest itself to some, is to combine them in the same person; and to bestow such emolument as may be thought proper to allow, half in the form of a settled salary, independent of the quantity of business done for it, and the other half according to such compensation as shall be made, in fees of office, accruing in proportion to the business. But fees of office, however moderate, can never, it must be confessed, be made to stand clear of this dilemma: either they are high enough, on any given occasion, to serve as a motive to act on that occasion, or they are not: if not, by the supposition they are of no use: if they are, they are liable to turn into abuse, by prompting him who profits by those occasions to use his industry to create them.

The only way of deriving any advantage from the union of these different plans of recompense, seems to be the employing them on the same service indeed, but not on the same person. In short, to establish two sets of magistrates, those of one set to be paid in one of the two ways, and those of the other set, in the other. On this plan, a magistrate out of one set, should constantly be joined with one out of the other set upon each business: to the end that each might supply that qualification, in which the other might be in danger of being deficient. The justice paid by fees would find activity to serve as a spur to the indolence that might be apprehended on the part of the justice paid by salary: the justice paid by salary would find integrity as a rein to the activity of the justice paid by fees.

This plan would probably be called refined and whimsical; as everything that is new is apt to be. With better show of reason, it might be thought invidious: casting a note of distrust on that set who should be fixed upon to be paid by fees: as persons not fit to have that confidence reposed upon them that is reposed in the other set of magistrates. A means of obviating this objection might be the forming the two sets at different times of the same persons: in such manner that each magistrate should be, for a limited time, a twelvemonth for example, in the set to be paid by fees: and afterwards, for an equal time, in the other set to be paid by salary. Change might be made, either by rotation, or by ballot.

In order to prevent too intimate an union between two persons, whose interests the view is, to certain purposes, to keep severed, it should be provided that no two, though of different sets, should act for any constancy in conjunction.

Another more simple expedient than that which has been last proposed, and which might either be substituted in the room of that, or be combined with it, is to annex the recompense, neither to the bare acceptance of the office, as on the plan of settled salary, nor to the quantity and quality of business done, as on the plan of fees on each occasion, but to attendance.

This may be done in either of two ways. By a settled salary for the whole year, with forfeitures out of it for every instance of non-attendance,—a plan adopted by Mr Viner, for example, in his establishment for a Law Professor: or, without any such salary, or any fees of office, by a sum to be divided at each period of attendance, amongst such as do attend, not exceeding a certain number: a mode exemplified in the instance of the Directorship of the Amicable Insurance, Office, the Bankrupt Commissions, and many others. In one instance, indeed, it is applied to the office in question: I mean that of meeting to license public houses, and in this instance, Dr Burn bears strong witness to the efficacy of it.*

In determining concerning any plan that shall be proposed, it ought not to be forgotten, that the business is so to provide, as that the magistrates, not only in point of fact, shall execute their offices with due diligence and integrity, but that, as far as may be, they shall be exempt from the suspicion of doing otherwise. Much depends on the title they have to confidence: but much depends also upon the confidence they possess: upon the title they are thought to have to it. On this account, it is not enough that the plan adopted shall have been approved by experience, as, it may be thought, in one or a few instances, perhaps not similar, for anything that is public to the contrary: instances, not circumstantially compared with that in question: instances, where the temptations and opportunities to swerve from the line of duty, perhaps may, perhaps may not be similar. It should be such as should appear from theory, from the consideration of the general principles of human nature, applicable to the particular circumstances of the case in question, calculated to compass the ends proposed: that if men should still complain of negligence or corruption, it may be said to them, “What would you have? The best general preventive measures have been taken for securing the persons you complain of, against the temptation to do ill, that offered: if anything has been done amiss, ’tis in the particular nature of the individual that has done it you are to look for the cause, and in the execution of the laws that are already provided for the remedy. All has been done in the way of making laws that the case admitted of: it has been made, as far as could be devised, the apparent interest of the persons in question to do their duty: that done, all is done that can be done.”

Another thing to be observed is, not to be influenced to give up any salutary check, any measure of security, that bids fair for efficacy, by the notion of its reflecting on this or that individual: by its being said, that gentlemen will take umbrage at the suspicions entertained of them: that they will not engage in the office upon such terms. All this, and abundance more that may be urged in the same strain, is abundantly answered, when it is observed on the principles avowed by the constitution, that no precautions against the abuse of power can be too strict, or too many, that do not impede the use of it: and that these, or whatever precautions may be taken, are taken, not against this or that individual, but against human nature.

The provisions made for the due execution of the law can be of use no further than in proportion as people are apprized of them.

Many delinquencies of the inferior order, though detected, escape unpunished, for want of persons knowing where to apply on the occasion, or what steps to take. Even in offences of the higher rank, which the whole neighbourhood make a common cause of punishing, much trouble is often occasioned by the want of such intelligence.

For this purpose, a set of printed advertisements, to be stuck up in a sufficient number of places throughout the jurisdiction, it is apprehended, might be of use. These might contain, 1st, A direction to the nearest office where magistrates are sitting, mentioning the hours of their sitting, and what to do with a delinquent in the intervals of those hours; 2dly, The names and abodes of a sufficient number, twelve for example, of the constables who live nearest the place where the advertisement is affixed.

Certain places should be fixed upon for these advertisements to be stuck up at,—for example, in every street, immediately over the name of the street. As to the form of printing, they should be at least of the size of the larger sort of play-bills, with capitals, and other such devices to attract the eye.

The title of these might be—From the Police, Instructions how to proceed in bringing Offenders to Justice.

It might be of use, were there some emblematical symbol used to distinguish all such advertisements as issue from authority: something that, being constantly used for that purpose, and appropriated to that purpose alone, would be intelligible to such as cannot read. The figure of justice, for example, with her sword in one hand, and the other resting upon a volume of the laws: either that, or else the king sitting in Parliament. Though the first symbol, being the most simple, and being already pretty familiarly known, seems to be the most proper. Advertisements thus distinguished, it might be made penal for persons unauthorized to deface or to pull down: of which notice should be given vivâ voce in all places of worship.

It might be of considerable convenience were there a place of temporary custody provided under the very roof where the magistrates sit, for the lodgment of such persons as should be brought for examination during the intervals of their sitting. If, for trivial delinquencies, in which justices of the peace have the power of determining, as well as of inquiring, parties could be brought immediately before them, and the complaint decided on the spot, it would save much trouble and expense; and the powers granted, in many instances, to persons at large of apprehending, flagrante delicto, without warrant, might be extended with less scruple to the constable himself, for the confined and single purpose of carrying a man to a place, certain to await, at a time speedy and certain, the legal orders of a magistrate.