CHAPTER VI

THE STATE JUDICIARY

=Function of the Courts.=--The legislature enacts the laws, the executive officers enforce them, the courts interpret their meaning and apply them to particular cases. The courts are also the instrumentalities through which the rights guaranteed us by the const.i.tution and the laws are enforced. If your neighbor owes you a debt and refuses to pay, if you make a contract with some one and he refuses to perform the stipulations, if some one injures you in your person or property, in these and countless other instances you must look to the courts for protection or redress. They are the agencies for settling disputes among men, for enforcing contracts, for trying and punishing violations of the law, and for determining what our rights are when they are drawn in dispute.

=Grades of Courts.=--(1) _Justice of the Peace._--At the bottom of the judicial system stand the courts of the justices of the peace, which have jurisdiction of civil cases involving small amounts, usually less than $150, and of petty offenses against the laws. On a level with these courts are certain munic.i.p.al courts in the cities. The justice of the peace is a magistrate of ancient origin, and in reality his court is important since it is to this court that large numbers of persons resort for the settlement of their disputes. Too little attention is given to the choice of the men who fill this important office, and the result is that the court of the justice of the peace has long been and still is the weakest part of our judicial system. Generally there are several justices in every town or township. Usually they are elected by the people, though sometimes they are appointed. One of the sources of the evils connected with the system is that they are paid fees rather than salaries. This system of compensation often leads them to solicit business and sometimes to divide their fees with lawyers who bring cases to them for trial. They not only try petty civil and criminal cases, but they have the power to conduct preliminary examinations into more serious offenses in order to determine whether there is ground for holding the accused for trial. In case the justice thinks the evidence warrants the trial of the offender, he "binds" him over to await the action of the grand jury.

(2) _County Courts._--Next above the court of the justice of the peace is, in some states, the county court, so called because its territorial jurisdiction embraces the entire county. This court has jurisdiction of civil cases involving large amounts and of more serious criminal cases.

It also has the right to hear appeals from the justices of the peace.

(3) _Circuit Courts._--Still higher in the judicial organization, in most states, are the courts whose territorial jurisdiction embraces a larger area of the state--usually a group of counties--and which are empowered to try any civil or criminal case without reference to the amount in controversy or the character of the offense. They are generally styled circuit courts, because the judge usually travels from county to county holding court in each county in the district or circuit. Sometimes, however, they are called district or superior courts, and in a few states "supreme" courts.

(4) _The Supreme Court._--Finally, at the top of the judicial hierarchy is the supreme court, or court of appeals, as it is sometimes called.

Unlike the other courts below, its jurisdiction embraces the whole state, and the judges are elected or appointed usually from the state at large. Unlike the other courts, moreover, instead of being held by a single judge, it is held by a bench of judges, the number ranging from three to nine in the different states. It has original jurisdiction in certain cases, but its most important function is that of hearing appeals from the decisions of the lower courts, and of deciding upon the const.i.tutionality of the laws. In cases appealed to it from the lower courts, it has the final word of authority except where a federal question is involved, in which case an appeal may be taken to the United States Supreme Court.

=Courts of a Special Character.=--The justice's, circuit, and supreme courts are found in all the states, though sometimes designated by different names. In addition to these, however, we sometimes find other courts of a more or less special character.

_Probate Courts._--Thus in many states there are separate probate courts for the settlement of the estates of deceased persons, for dealing with matters relating to wills and inheritances, and sometimes with matters affecting orphans and minors. They are occasionally called surrogate's or orphans' courts. In many states, however, there are no separate probate courts, the probate business being taken care of by the county court. In certain other states probate courts are separately provided only for the more populous counties.

_Juvenile Courts._--Frequently in the more populous cities there are also juvenile courts for the trial of youthful offenders.

_Equity Courts._--In a few states the distinction between law and equity is still maintained, and equity jurisdiction is intrusted to a distinct cla.s.s of courts. Equity had its origin in the practice of the King of England in early times in granting relief to suitors who, owing to the deficiencies of the common law, could not obtain relief through the courts of law. In time all such pet.i.tions came to be addressed to an officer who stood very close to the king and who was called the chancellor. Out of this office there were ultimately evolved the chancery courts which administered justice, not according to the law, but according to a less technical body of rules called equity. Thus there came to be two bodies of rules according to which justice was administered, and two cla.s.ses of courts through which it was done. The jurisdiction of equity courts included such matters as trusts, accounts, fraud, mistake or accident, and the like. Equity could also prevent wrongs, while law could only punish them.[16] Thus a court of equity could command a person to do something for the benefit of an injured person, or restrain him from committing an injury, while a court of law could only award him damages after the injury had been done--a remedy often worthless or inadequate. The English system of equity, like the common law, was transplanted to America, and both are still in force here except in so far as they have been modified by legislative acts.

England, however, abolished the separate system of equity courts in 1873, and left the law courts to administer equity wherever it was applicable. Likewise, in the United States, separate equity courts have been done away with in all except five states, leaving the same courts to administer both law and equity.

[16] Baldwin, The American Judiciary, p. 133.

=The Judges of Courts.=--_Qualifications._--Generally no qualifications for the judicial office are prescribed by law, except in a few states where it is required that judges shall be lawyers or be "learned in the law." As a matter of fact, however, judges are nearly always lawyers, except in the case of justices of the peace and police magistrates, where extensive knowledge of the law is not essential.

_Terms of Office._--The terms of the judges vary widely among the different states. In the early days of our history, the judges generally held their offices during good behavior or until the attainment of a certain age, usually sixty or seventy years. With the growth of democracy, however, most of the states came to adopt short terms for judicial as well as for other public officials. Only in Ma.s.sachusetts and Rhode Island do the judges of the highest court now serve practically for life. In New Hampshire they serve until they are 70 years of age. Elsewhere the tenure varies from two years, in Vermont, to twenty-one years, in Pennsylvania. In Maryland, the tenure is fifteen years; in New York, fourteen; in several, it is twelve, in some nine, in many six. The advantage of a long term is that it enables the judges to acquire experience and renders them less affected by political influence and popular clamor.

_Methods of Choosing the Judges._--In early times the judges were chosen either by the legislature or by the governor. Choice by the legislature was objectionable because it often resulted in selection by political caucuses and in a parceling of the judgeships among the different counties or sections of the state. Appointment by the governor was objectionable to many because it often resulted in the choice of political favorites. Most of the states, therefore, abandoned these methods of choice for popular election, Mississippi in 1832 being the first state to adopt this method. Only in Delaware, Connecticut, New Jersey, Ma.s.sachusetts, New Hampshire, and Maine, are the higher judges now appointed by the governor,--subject to the confirmation of the state senate or the legislature,--and only in Rhode Island, Vermont, South Carolina, and Virginia are they elected by the legislature. In all the other states they are elected by the people.

The arguments in favor of popular election are that it is more in harmony with the principles of popular government, and, it is claimed by some, tends to secure a higher cla.s.s of judges, thus doing away with the evils of executive appointment and of legislative choice described above. The objection to this method, however, is that it compels judicial candidates to engage in political contests, and by making their tenures dependent upon popular favor subjects them to the temptation of shaping their decisions to meet the approval of the people, who, obviously, are not always qualified to judge of the soundness of judicial decisions involving intricate questions of law. Such a method, it is claimed by some, tends to secure the election of able politicians rather than of able judges.

_Compensation of the Judges._--The pay of the judges, like their terms of service, varies widely among the different states. The salary paid the judges of the highest court is not much more or less than the governor's salary. The highest salary paid in any state to the judges of the highest court is $13,700 per year, in the state of New York,[17] a salary about as large as that of the justices of the United States Supreme Court. In Illinois and a few other states, the justices of the supreme court receive $10,000 a year. Many states pay less than $5,000 a year. This scale of salaries is very low as compared with those in England, where the highest judges receive $25,000, and the lowest, the county judges, $7,500 a year. A few states have provided a system of pensions for their higher judges who have served a certain number of years or who have reached a certain age, after which they are allowed or compelled to retire, but this provision has not yet become general.

[17] Trial court judges in certain districts receive $17,500 a year.

=Trial of Civil Cases.=--The cases brought before the courts for trial are of two general cla.s.ses: (1) civil actions and (2) criminal actions.

A civil action is a suit brought for the enforcement of a private right or to secure compensation for damages on account of injuries sustained through the violation of one's rights. Thus a creditor sues a debtor for refusing to pay a debt; an owner sues to recover property which has been wrongfully taken from him; a householder brings an action against his neighbor for trespa.s.sing upon his premises; and so on. The person who brings the action is called the _plaintiff_; the one against whom it is brought, the _defendant_; and the two together are known as the _parties_ to the action.

_Beginning of a Civil Case._--A civil suit is usually started by the filing of a complaint containing a statement of the facts, with the court, which then issues a summons directing the sheriff or constable to notify the defendant to appear and make answer. If the plaintiff is a creditor and has reason to believe that the defendant is preparing to dispose of his property with the intention of defrauding him, he may ask the court to issue a _writ of attachment_ authorizing the sheriff to take possession of the property. Or if the defendant is in wrongful possession of property belonging to the plaintiff the latter may ask the court to issue a _writ of replevin_ requiring the officers to seize the property and turn it over to the plaintiff. In both cases, however, the plaintiff is required to give a bond for the costs of the suit and for the return of the property in case the court should decide that it does not properly belong to him. The defendant now makes an answer or plea in which he denies the charges of the plaintiff as a whole or in part, or admits their truth but denies the right of action, or maintains that the court has no jurisdiction, or pleads something else in bar of the action. The complaint of the plaintiff and the answer of the defendant are known as the _pleadings_.

_The Trial._--The issue is now joined and the case is ready for trial.

If it is a suit in equity, it is tried by the judge alone without a jury. If it is a suit at law, either party may demand a jury, but if both parties agree to waive a jury trial, the case is tried by the judge alone. Frequently civil cases are tried without juries, the parties preferring to leave the decision to the judge. If, however, a jury trial is preferred, a list of qualified persons is prepared and from this list twelve persons, or six, as the parties may agree upon, are selected to try the case. After the jury is sworn the attorney for the plaintiff generally makes a statement of the facts upon which he rests his case.

He then calls his witnesses, who testify to their knowledge of the facts as they are questioned by counsel. When the attorney for the plaintiff has completed the examination of each witness, the attorney for the defendant is allowed to cross-examine him. Witnesses are required to confine their testimony to what they know to be the truth, and are not permitted to tell what they believe to be true or what they have learned from mere hearsay.

After the plaintiff has introduced all his evidence, the defendant's case is presented in a like manner, the counsel for the plaintiff this time conducting the cross-examination. When the evidence for the defendant is all in, the plaintiff may introduce evidence in reb.u.t.tal, after which the defendant may do likewise. The next step is the argument of counsel. The attorney for each side addresses the jury and endeavors to convince it that the evidence sustains the facts which he has undertaken to prove. The burden of proof in civil cases is usually on the plaintiff, and his attorney generally has the privilege of closing the argument. If the plaintiff has failed to make out a case the judge may dismiss the suit without giving the case to the jury, or if the evidence is such as to admit of but one conclusion, the judge may direct the jury to return a verdict in accordance therewith. But if the evidence leaves the question as to the facts in doubt, the case is given to the jury and it alone can make the decision. Before sending the jury to their room the judge instructs them as to the law applicable to the case, but generally in this country he cannot comment on the weight of the evidence or express any opinion as to the facts. The jury, after receiving its instructions, retires from the court room and deliberates in secret. If, after a reasonable time, the jurymen cannot agree upon a verdict they so report to the judge and are discharged, and the trial must be gone through with again.

_Judgment; Execution_.--After the return of the verdict, the judge enters judgment in accordance therewith. In most civil cases the judgment, if for the plaintiff, requires the defendant to pay him a certain sum of money as a compensation for the damages he has sustained.

If he refuses to pay, an "execution" is issued, that is, the sheriff is required to seize and sell a sufficient amount of the defendant's property to satisfy the judgment. If the suit is one in equity the "decree," as the decision is called, is not usually for the payment of damages but is a command to the defendant to do a specific thing, as, for example, to carry out a contract or to pay a debt; or to refrain from doing something, such as maintaining a nuisance to the injury of the defendant.

_Appeal._--After the verdict has been rendered, the losing party may generally take an appeal to a higher court on the ground that errors were committed by the judge in the course of the trial, as, for example, the admission of improper evidence or the exclusion of proper evidence; or because the verdict was contrary to the law and the evidence. The higher court either affirms the judgment of the lower court or reverses it. If it affirms the judgment, it must then be carried out; if it reverses the judgment a new trial is granted and the whole procedure is gone through again.

=Trial of Criminal Cases.=--Criminal actions, unlike civil actions, are brought, not by the injured party, but by the state whose peace and dignity have been violated by the act complained of. The officer who brings the action in the name of the state is called the _prosecuting attorney_, the _district attorney_, or the _state's attorney_. He conducts preliminary investigations into crimes and presents cases to the grand jury for indictment. If the grand jury returns the indictment, that is, decides that the accused shall be held for trial, the prosecuting officer takes charge of the case and conducts it for the state.

_The Arrest._--Usually the first step in the trial of a person charged with crime is to cause his arrest. The person injured, or any one else who may have knowledge of the crime, appears before a magistrate and makes a complaint setting forth the facts in regard to the crime. If the magistrate is satisfied as to the truth of the complaint, he issues a warrant commanding the sheriff or some other police officer to arrest the accused. The warrant must particularly describe the offense, the place where committed, and the circ.u.mstances under which it was committed, and must give the name of the person to be arrested. But in some cases an arrest may be made without a warrant, as when an offender is seen committing a crime or when an officer has good reason to believe that the person who is charged with committing a crime is the guilty person. In practice, policemen frequently arrest on mere suspicion, and if they do so in good faith they will rarely be held liable for damages.

Any private individual, as well as an officer, may arrest without warrant a person whom he sees committing a crime. He may also arrest a person whom he suspects of having committed a capital crime, although without personal knowledge of his guilt.[18]

[18] Baldwin, The American Judiciary, p. 227.

_Commitment._--When arrested the accused is brought before a justice of the peace and examined. If the justice of the peace, after such examination, believes that the accused should be held for trial, he is committed to jail. If the offense is a minor one it can be tried by the justice of the peace. If it is a more serious crime the justice of the peace can hold the offender to await the action of the grand jury.

_Habeas Corpus Proceedings._--If at any time it is alleged that a person is unlawfully deprived of his liberty, a judge may issue a writ of habeas corpus and inquire into the case. In this way an accused person may be set free if there is no sufficient reason for holding him.

_Bail._--If the offense is not a capital one, the accused can secure his release from the jail while awaiting trial by giving bail. That is, he can get one or more persons to obligate themselves to pay to the state a certain sum of money should he fail to appear for the trial at the time set. Such persons are called sureties, and they have a certain power of control over the accused as a means of insuring his appearance for the trial. The const.i.tutions of all the states allow the privilege of bail except in capital cases, and they all declare that the amount of bail required shall not be excessive, that is, shall not be more than is sufficient to insure the appearance of the accused for trial. What this amount is must be determined by the judge according to his own discretion, due regard being paid to the gravity of the offense, the nature of the punishment, and the wealth of the defendant or his friends. If the offender has been bound over to await the action of the grand jury, the next step in the proceedings is the indictment.

_The Grand Jury_ is one of the ancient inst.i.tutions of the common law.

The number of persons const.i.tuting the grand jury was originally twenty-three, but many of the states have changed this, a common number being fifteen. The grand jury is chosen by lot from a carefully prepared list of persons in the county, qualified to serve. The members are sworn in on the first day of the term of court and are then "charged" by the judge to make a diligent inquiry into all cases of crime that have been committed in the county, and to return indictments against such persons as in their opinion should be held for trial. They then retire to their room and conduct their investigations in secret.

_The Indictment._--It must be remembered that the procedure of a grand jury is not in the nature of a trial of the accused; it is only an inquiry to ascertain whether there is sufficient evidence of guilt to warrant his being put on trial. In conducting this investigation, the grand jury hears only one side of the case, that of the prosecution, neither the accused or his witnesses being heard. The prosecuting attorney attends the sessions of the grand jury and aids it in the conduct of its inquiries. He prepares the indictment and it is often upon his recommendation that the grand jury decides to indict or not to indict. In some states the procedure of indictment by grand jury for all offenses, or for all except the most serious ones, has been done away with, the accusation taking the form of an "information" filed by the prosecuting attorney. One of the reasons given for abolishing the grand jury is that it is often a source of delay since it can be called only when the court is in session, and in some communities the court is not in session for long periods in every year.

_The Arraignment._--After the accused has been indicted the next step is to bring him before the court and arraign him. The charge is first read to him and he is directed to plead. If he pleads guilty, no further action is taken and the judge imposes the sentence. If he pleads not guilty, the trial proceeds. If he has no counsel to defend him, the court appoints some member of the local bar to act as his attorney, and the lawyer so designated is under a professional obligation to undertake the defense and do all in his power to clear him. In this way the murderer of President McKinley was enabled to have the benefit of counsel. Many writers on criminal law, indeed, contend that the state ought to employ regular public defenders for accused persons just as it employs public prosecutors, since it should be equally interested in seeing an innocent man acquitted as in seeing a guilty one convicted.[19]

[19] In several instances provision has recently been made for such an officer; for example, in Los Angeles.

_Selection of the Jury._--The next step is the impaneling of a jury of twelve persons to try the case. The law requires that the jury shall be selected from the community in which the offense was committed, in order that the accused may have the benefit of any good reputation which he may enjoy among his neighbors. The jury is chosen by lot from a list of persons qualified to perform jury service, and the jurymen are sworn to return a verdict according to the law and the evidence. Each side is allowed to "challenge," that is, ask the court to reject, any juror who has formed an opinion of the guilt or innocence of the accused or who is evidently prejudiced. In addition, each may reject a certain number of jurors "peremptorily," that is, without a.s.signing a cause.

_The Trial._--After the jury has been impaneled, the prosecuting attorney opens the trial by reciting the facts of the case and stating the evidence upon which he expects to establish the guilt of the accused, for the law presumes the prisoner to be innocent, and the burden of proof to show the contrary rests upon the state. The procedure of examining and cross-examining the witnesses is substantially the same as in the trial of civil cases. There are well-established rules in regard to the admissibility of evidence and the weight to be attached to it, and if the judge commits an error in admitting improper evidence or in excluding evidence that should have been admitted in the interests of the accused, the prisoner may, if convicted, have the verdict set aside by a higher court and a new trial granted him. One of the rules of procedure is that the jury must be satisfied beyond a reasonable doubt, from the evidence produced, that the accused is guilty.

_Verdict; Sentence._--After being charged by the judge as to the law applicable to the case, the jury retire to a room where they are kept in close confinement until they reach a unanimous verdict. If they cannot reach an agreement, they notify the judge, who, if satisfied that there is no longer any possibility of an agreement, discharges them; then the accused may be tried again before another jury. If a verdict of not guilty is returned, the court orders the prisoner to be set free; if a conviction is found, sentence is imposed and the punishment must be carried out by the sheriff or some other officer. The usual punishment is fine, imprisonment in the county jail or state penitentiary, or death inflicted by hanging or electrocution. In a few states, notably Maine, Michigan, Wisconsin, Rhode Island, and Kansas, punishment by death has been abolished.

_Probation; Reformation._--Imprisonment is generally for a specified period, though recently in a number of states the indeterminate sentence has been provided, that is, the judge is allowed to sentence the offender for an indefinite period, the length of which will depend upon the behavior of the prisoner and on the promise which he may show of leading a better life after being released. When thus released he may be placed on probation and required to report from time to time to a probation officer in order to show that his conduct is satisfactory. If unsatisfactory, he may be taken up and remanded to prison. The tendency now in all enlightened countries is to adopt a system of punishment that will not only serve as a deterrent to crime but at the same time help to reform the criminal and make a better citizen of him. The old idea that the purpose of punishment was revenge or retribution has nearly everywhere disappeared, and in place of the severities of the old criminal code we have introduced humane and modern methods which are probably just as effective in deterring others from wrongdoing, and besides conduce to the reformation of many unfortunate criminals.

=References.=--BALDWIN, The American Judiciary, chs. viii, xii, xiv, xv, xvii, xxii. BEARD, American Government and Politics, ch.

xxvi. BRYCE, The American Commonwealth (abridged edition), ch. xli.

HART, Actual Government, ch. ix. MCCLEARY, Studies in Civics, chs.

ii, vii. WILLOUGHBY, Rights and Duties of Citizenship, ch. vii.

=Ill.u.s.trative Material.=--1. The legislative manual or blue book of the state. 2. A map showing the division of the state into judicial districts. 3. Copies of legal instruments, such as warrants of arrest, indictments, subpoenas, summonses, etc.

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