--12. Again, all these government corporations differ from incorporated business companies. In forming a town or city, many persons are brought into the corporation against their wishes or consent; because, in governments, all who live within certain prescribed bounds must come under the same laws; but of an incorporated business a.s.sociation, as of a common business partnership, none become members but by their own act or choice. There is another difference: The latter are what are called _stock_ companies; and although they may be continued after the death of the first corporators, those who afterward come into the a.s.sociation, do so by becoming owners of the capital stock of those who preceded them.
This latter difference will more clearly appear from the more particular description, elsewhere given, of the incorporated companies, and of the manner in which the stock is transferred. (Chap. XXIII, --11--15.)
Chapter XVII.
Judicial Department. Justices" Courts.
--1. Having seen how the legislative and executive departments of a state government are const.i.tuted, and how the laws are made and executed, the manner in which the local affairs of counties and towns are conducted, and the powers and duties of their respective officers; we proceed to describe the _judicial_ department, the powers and duties of judicial officers, and the manner in which justice is administered.
--2. It is the business of the legislature to determine what acts shall be deemed public offenses, or crimes, and to make laws for securing justice to the citizens in their dealings and general intercourse with each other; but to judge of and apply the laws; that is, to determine what the law is and whether it has been broken, and to fix the just measure of damage or of punishment, and to order such decision to be carried into effect, are duties which, as has been observed, have been wisely a.s.signed to a separate and distinct department. (Chap. VIII. --7.)
--3. A government without some power to decide disputes, to award justice, and to punish crime according to the laws of the state, would not be complete. To allow every man to be his own judge in cases of supposed injury, and to redress his own wrongs, would endanger the rights of others. Justice is best secured to the citizens by establishing courts for the redress of injuries and the punishment of crimes; and that no person may suffer unjustly, it is provided that every person charged with crime or any other wrong, is ent.i.tled to a fair and impartial trial.
--4. For the convenience of persons who may be compelled to seek relief at law, courts are established in every town. These are courts of the lowest grade, and are called _justices" courts_, being held by justices of the peace who are, in most of the states, elected by the people of the several towns. They are called the lowest courts, because they have jurisdiction only in cases in which the smallest sums or damages are claimed, or in which only the lowest offenses are tried. The word _jurisdiction_ is from the Latin _jus_, law, or _juris_, of the law, and _dictio_, a p.r.o.nouncing or speaking. Hence the _jurisdiction_ of a court means its power to p.r.o.nounce the law.
--5. Although justices of the peace are generally elected in the towns, their jurisdiction extends over the county; that is, they have power to try causes arising in any part of the county, or between citizens residing in other towns. The jurisdiction of justices of the peace is generally prescribed by law. The law prescribes the sum that may be sued for, or the amount of damage that may be recovered in a justice"s court, and the grade of offenses that may be tried in it. In some states justices of the peace may try suits only in which the sum in controversy does not exceed $50; but in most of them, the jurisdiction of a justice extends, it is believed, to sums of $100 or more.
--6. Causes, in which money is claimed for damage or for debt, are called _civil_ causes; those for the trial of persons charged with crime, or some misdemeanor, are called _criminal_ causes. All crimes, strictly speaking, are misdemeanors. In common usage, however, the word _misdemeanor_ denotes a smaller offense, such as is usually punishable by fine, or by imprisonment in a county jail, and not in a state prison.
Causes, actions, and suits, are words of similar meaning in law language, being generally used to signify prosecutions at law, or lawsuits. The party that sues is called _plaintiff_; the party sued is the _defendant_.
--7. Prosecutions at law are conducted in nearly the same manner in the different states. The following is a sketch of the proceedings in an ordinary civil suit in a justice"s court: The justice, at the request of the plaintiff, issues a _summons_, which is a writ or precept addressed to a constable of the town, in some states to any constable of the county, commanding him to summon the defendant to appear before the justice on a day and at an hour specified, to answer the plaintiff (naming him) in a suit, the nature of which is stated in the summons.
--8. The constable serves the summons by reading it or stating the substance of it to the defendant; and if requested, gives him a copy of it. If he does not find the defendant, he leaves a copy at his place of residence with some one of the family of proper age. At or before the time named for trial, the constable returns to the justice the summons with an indors.e.m.e.nt stating the day on which it was served, and whether served personally or by copy. If served by copy, and the defendant does not appear at the time named for trial, a new summons is issued, as the practice is in some states--perhaps all of them; and the trial may not proceed unless a summons has been personally served.
--9. The parties may appear in person, or by attorney. An _attorney_ is any person lawfully appointed to transact business for another; hence the word attorney does not always mean an attorney at law, or lawyer, who is properly an officer of a court of law. When the parties have appeared and answered to their names, they make their _pleadings_; that is, the plantiff declares for what he brings his suit; and the defendant states the nature of what he has to _offset_ against the demand of the plaintiff, or denies the demand altogether. These acts of the parties are called _joining issue_.
--10. If the parties are ready for trial, the justice proceeds to try the issue. If the witnesses have not been subpned and are not in attendance, the cause is adjourned to a future day; and the justice, at the request of either party, issues a _subpna_, which is a writ commanding persons to attend in court as witnesses. The witnesses on both sides are examined by the justice, who decides according to law and equity, as the right of the case may appear, in which he is said to _give judgment_. To the amount of the judgment, whether against the plaintiff or the defendant, are added the costs; for it is considered to be just that the party in default shall pay the expense of the suit.
The costs consist of the _fees_ or compensation to be paid the justice, constable and witnesses for their services.
--11. If a defendant does not appear at the time of trial, the justice may proceed to try the cause, and decide upon the testimony of the plaintiff"s witnesses. If a plaintiff does not answer or appear when his name is called in court, the justice enters judgment of _nonsuit_. A plaintiff may, at any time before judgment is rendered, discontinue or withdraw his action, in which case also judgment of nonsuit is given. In cases of nonsuit, and also when no cause of action is found, judgment is rendered against the plantiff for the costs.
--12. A debtor may avoid the expense of a lawsuit by _confessing judgment_. The parties go before a justice, and the debtor acknowledges or confesses the claim of the creditor, and consents that the justice enter judgment accordingly. In some states, the confession and consent must be in writing, and signed by the debtor. The amount for which judgment may be confessed is limited by law, but is, in some states at least, and perhaps in most if not all of them, larger than the sum to which the jurisdiction of a justice is limited in ordinary suits.
Chapter XVIII.
Trial by Jury; Execution; Attachment; Appeals; Arrest of Offenders.
--1. The administration of justice in courts of law is not left entirely to the justices and judges. Parties may not always have sufficient confidence in the ability, honesty, and impartiality of the justice by whom a suit is to be tried, to intrust their interests to his judgment.
Therefore the const.i.tutions of all the states guaranty to every person the right of trial by a jury. This right has been enjoyed in England many centuries. It was established here by our ancestors, who were princ.i.p.ally from that country.
--2. A _jury_ is a number of men qualified and selected as the law prescribes, and sworn to try a matter of fact, and to declare the truth on the evidence given in the case. This declaring of the truth is called a _verdict_, which is from the Latin _verum dictum_, a true declaration or saying. A jury in a justice"s court consists in most or all of the states, as is believed, of six men; in the higher courts, of twelve men, who are generally required to be freeholders. The manner of selecting the jurors is not the same in all the states.
--3. After issue has been joined, and before testimony has been heard, either party may demand that the cause be tried by a jury. Whereupon the justice issues a _venire_, which is a writ or precept directing a constable to summon the required number of duly qualified men to appear before the justice, to make a jury to try the cause.
--4. The testimony and arguments on both sides having been heard, the jurors are put under the charge of the constable, who is sworn to keep them in some convenient place, without meat or drink, except such as the justice may order, until they shall have agreed on their verdict, or have been discharged by the justice; and not to allow any person to speak to them during such time, nor to speak to them himself, except by order of the justice, unless to ask them whether they have agreed on their verdict.
--5. All the jurors must agree in a verdict; and when so agreed, they return in charge of the constable, and, in open court, deliver their verdict to the justice, who enters judgment according to the finding of the jury. If the jurors, after having been out a reasonable time, do not all agree upon a verdict, the justice may discharge them, and issue a new venire, unless the parties consent to submit the cause to the justice.
--6. If a judgment is not paid within the time prescribed by law, the justice issues an _execution_, which is a precept directing a constable to collect the amount of the judgment; and authorizing him to take and sell the goods and chattels of the debtor, and to make his returns to the justice within the time required. _Goods_ and _chattels_ are personal or movable property, or property other than freehold, or real estate. If the money can not be collected, the execution is returned as not satisfied. If a constable does not faithfully obey the directions contained in the execution, he and his sureties become liable to pay the judgment.
--7. Laws have been pa.s.sed in all the states for the benefit of poor men, who are allowed to retain, for the use and comfort of themselves and their families, certain articles of personal property, which may not be sold on execution; such as necessary household furniture, apparel, beds, tools and implements of trade, &c. The practice which formerly prevailed, of imprisoning debtors who were unable to satisfy executions, has been abolished, except for fines and penalties.
--8. The foregoing description of the proceedings of a justice"s court is that of a prosecution in ordinary cases. But there are other modes of prosecution in certain cases, one of which is by attachment. An _attachment_ is a writ directing the property of a debtor to be taken, and kept till a trial can be had, and judgment obtained. This mode of proceeding is adopted when the plaintiff has reason to believe that a debtor conceals himself to avoid being prosecuted by summons, or is about to remove his property or himself from the county, or intends in some other way to defraud his creditors.
--9. In case of an absent or concealed debtor, the constable, (as is supposed to be the common practice,) leaves a copy of the attachment, with an inventory or list of the articles of property attached, at the defendant"s last place of abode, or, if he had none in the county, the copy and inventory are to be left with the person in whose possession the property is found. If the defendant does not appear on the day of trial, the plaintiff may proceed to prove his demand and take judgment.
An execution is then issued against the property attached.
--10. If either party is dissatisfied with a judgment rendered in a justice"s court, he may _appeal_ to a higher court for trial, or for a review of the judgment. The party appealing is called _appellant_; the adverse party is the _appellee_ or _respondent_.
--11. An important part of the duties of a justice of the peace relates to the arrest and trial of persons charged with crimes and misdemeanors.
Although they have not power to try high offenses usually called crimes, they may order the apprehension of persons charged with such offenses, and cause them to be committed for trial.
--12. A person knowing or suspecting another to have committed an offense, may make complaint to a judge or justice of the peace, who examines the complainant on oath, and witnesses, if any appear; and if he is satisfied that an offense has been committed, he issues a _warrant_, directing the person accused to be brought before him. The complainant and witnesses for the prosecution, and next the prisoner and his witnesses, are examined. If the offense is one of which the magistrate has jurisdiction, he may proceed to try the prisoner, who, it will be recollected, is ent.i.tled to be tried by a jury.
--13. If the offense is one which the magistrate has not power to try, he binds the prosecutor or complainant and all material witnesses to appear and testify against the prisoner at the next court having power to indict and try him. And if the offense is one for which the prisoner may be bailed, the magistrate takes bail for his appearance at court. If the offense is not bailable, or if no satisfactory bail is offered, the magistrate orders him to be committed to jail to await his trial. But, as will be seen hereafter, he must be indicted by a grand jury before he can be tried. (Chap. XIX., --7-9.) And were there no danger of an offender"s escape before he could be brought to trial, his previous arrest and examination might be unnecessary.
--14. The obligation or bond given by a prosecutor and witnesses for their appearance at court, is sometimes called a _recognizance_. They bind themselves, with sureties, to forfeit and pay a certain sum of money in case of their non-appearance. A similar bond or recognizance is given in case of bail. The person accused binds himself, with sureties, in such sum as the justice requires, which is to be paid if he shall not appear for trial. The word _bail_ is from a French word meaning _to deliver_, or _to release_. Hence, the justice _bails_, sets free, or delivers to his sureties, the party arrested. Also the sureties are said to bail a person when they procure his liberation.
Chapter XIX.
Courts other than Justices" Courts; Grand and Pet.i.t Juries, &c.
--1. The court next higher than a justice"s court, is a court held in each county, generally called a _county court_, or _court of common pleas_. This court is usually held by a county judge elected by the electors of the county in most of the states; in some, appointed by the legislature; and in others, by the governor, with the advice and consent of the senate. In a few of the states this court consists of more than one judge. In some states, county courts are held by judges of the circuit courts.
--2. In this court are tried civil causes in which are claimed sums of greater amount than a justice of the peace has jurisdiction of, and criminal causes in which are charged the lower crimes committed in the county. Also causes removed by appeal from a justice"s court are tried in this court; in which cases it is said to have _appellate_ jurisdiction. Courts are also said to have _original_ jurisdiction; which means that suits may _originate_ or commence in such courts.
--3. There is in every state at least one court, and in most of the states there are two or more courts of higher grade than a county court.
They are called in the different states by different names; as _circuit court_, _superior court_, _supreme court_, and _court of appeals_. A _circuit_ court probably obtains its name thus: A state is divided into judicial districts, in each of which one or more judges are elected, who go around holding a court once a year or oftener in each of the counties composing a judicial district. This court usually has both original and appellate jurisdiction; it being a part of its business to try appeals from the county courts. It also tries such of the higher crimes as a county court has not the power to try. Courts in which crimes are tried are sometimes called courts of _oyer and terminer_.
--4. Every county court, and every circuit having like jurisdiction, has a jury to try issues of fact, and a grand jury. An _issue of fact_ is when the _fact_ as to the indebtedness or the guilt of the party charged is to be determined from the testimony. An _issue of law_ is one in which it is to be determined what is the _law_ in the case, which is done by the judge instead of the jury. The jury by which issues of fact are tried, as distinguished from a grand jury, is called a _petty_ or _pet.i.t jury_. It consists of twelve men, all of whom must agree in a verdict.
--5. The manner of selecting grand and pet.i.t jurors is prescribed by law.
A number of judicious men in each town are selected by some person or persons lawfully authorized; and the names of the men so selected are written on separate pieces of paper, and put into a box in each town, and kept by the town clerk; or as is the practice in some states, the names of the men designated as jurors in the several towns are sent to the county clerk, and by him kept in a box. Previous to the sitting of the court, the requisite number is drawn out the box; and the men whose names are drawn, are summoned to attend as jurors.