15. The legislative reference bureau. (Reinsch, _Readings on American State Government_, pages 63-73.)

16. The relation of the state legislature to local government (Gettell, _Introduction to Political Science_, chapter xxii.)

17. Public forces influencing legislation. (Reinsch, _American Legislatures and Legislative Methods_, pages 275-298.)

FOR CLa.s.sROOM DISCUSSION

18. Would shortening the length of the legislative session improve the character of legislation in your state?

19. Should members of the state legislature be residents of the districts from which they are chosen, or should they be chosen on a state-wide ticket?

20. Should our state legislatures be made unicameral? (See Munro, _The Government of the United States_, pages 416-418.)

CHAPTER XLVIII

THE STATE COURTS

A. SOURCES OF LAW

602. ENGLISH COMMON LAW.--One important source of our system of jurisprudence is the English common law. This law is not found in the enactment of statutes, but consists of court decisions spread over several centuries. The common law has been defined as "that rule of civil conduct which originated in the common wisdom and experience of society," and which "in time became an established custom, and has finally received judicial sanction and affirmance in the decisions of the courts of last resort." [Footnote: W. C. Robinson, quoted in _Government and Politics in The United States_, by W. B. Guitteau, Houghton Mifflin Co., Boston, 1920.] The common law began its development in early England, and with the settlement of America was transplanted to this country. Though radically modified by American const.i.tutional and statutory enactments it still remains the basis of our legal system.

603. EQUITY.--Common law tended to become so stereotyped and so inflexible that in some cases an application of the law worked an injustice. Very early in English history this situation gave rise to a new form of jurisprudence called equity. Equity is that legal system which supplements common and statute law by aiming to secure justice where a strict application of law would work an injustice. Equity developed in England after the Norman Conquest, and, like the common law, was transferred to this country in colonial times. A distinct set of chancery or equity courts was created to administer equity in early America, but at present equity is administered by the same judges that preside over the regular state law courts. Both equitable and legal relief may be secured in one suit.

604. STATUTES.--Another important source of law is the statutes enacted by the state legislature. Most state laws relate to the structure and functions of government, but statutory enactment is also employed to regulate a few branches of private law, including princ.i.p.ally matters which affect the public at large as well as private individuals. Examples are laws relating to wills and succession to property, marriage and divorce, partnerships, and corporations.

The scope of the statutes is widening, and during the last half century several fields of the common law have been covered by statute.

Criminal law, criminal procedure, and civil procedure have been codified in various states. Some states have attempted to codify the entire civil law, but experience has proved that this may easily render the law too rigid.

605. OTHER SOURCES OF LAW.--The state const.i.tution, the Federal Const.i.tution, and Federal laws and treaties with foreign countries are other sources of state law.

In summary, the various kinds of law which are enforceable in the state courts may be considered as forming a pyramid, built upward by the following steps: English common law, equity, state statutes, the state const.i.tution, Federal statutes, treaties with foreign nations, and the Federal Const.i.tution.

B. STRUCTURE OF THE COURTS

606. THE JUSTICE OF THE PEACE.--State courts are arranged in a progressive series. At the bottom of this series is the justice of the peace, who exercises jurisdiction over petty offenses and over civil cases involving very small amounts. Generally there is a justice of the peace in each township or other local district. In large cities the civil and criminal jurisdiction of the justice of the peace is usually divided between two sets of courts: first, the munic.i.p.al or city courts, with a minor civil jurisdiction; and second, the police or magistrates' courts with jurisdiction over petty criminal offenses.

The police or magistrates' courts have the power to make preliminary investigations in case of felonies or serious misdemeanors.

607. THE COUNTY COURTS.--Above the justices of the peace there are, in most states, a number of county courts, exercising limited jurisdiction. These courts, sometimes called courts of common pleas or district courts, have jurisdiction over civil cases involving considerable sums, as well as jurisdiction over most criminal offenses. In addition these courts usually consider appeals from the judgments of justices of the peace.

608. SUPERIOR OR CIRCUIT COURTS.--In many states there is a superior, circuit, or district court immediately above the county courts, though in some states this tribunal takes the place of the county courts. The superior court has jurisdiction over civil cases involving unlimited sums, as well as unlimited original jurisdiction over criminal matters. It may also try all cases over which the lower courts have no jurisdiction.

609. THE SUPREME COURT.--At the head of the state judicial system there is a court of last resort, known in various states by different names. It may be called the court of appeals, the court of errors and appeals, or simply the supreme court. Practically all of the cases coming before this court are appealed from the lower courts.

Ordinarily it deals with points of law rather than of fact.

610. SPECIAL COURTS.--In addition to the regular state courts there are sometimes special tribunals for special purposes. Examples of such courts are the probate or surrogates' courts for the settlement of the estates of deceased persons; children's courts for the treatment of cases involving children; courts of domestic relations; and courts of claims for hearing claims against the state.

611. STATE JUDGES.--In almost all of the states judges are chosen by popular vote, though in half a dozen states the choice of these officials still lies with the legislature or with the Governor, or with both acting jointly. Judges of the higher state courts are generally chosen for a long period of time, even for life, while the judges of the lower courts are chosen for relatively short periods.

Salaries vary from practically nothing but fee money for some justices of the peace to an average of $7000 a year for justices of the supreme court. The qualifications imposed upon judges include a minimum age of 25 to 35 years, and citizenship for a varying period of years. Another common requirement is residence within the state, or even residence within the judicial district. For judges of the higher courts it is the custom to demand membership in the legal profession. Judges may be removed by impeachment, and, in a few states, by use of the Recall.

612. OTHER COURT OFFICIALS.--The district or prosecuting attorney is an important official. Generally he is chosen by the voters of the county, though in some instances he is elected from larger areas. The district attorney represents the state in all criminal cases, and conducts the prosecution. This officer conducts a preliminary investigation into crimes and determines whether or not a prosecution should be inst.i.tuted. If the decision is in the affirmative, he presents the case to the grand jury. If the grand jury returns an indictment, that is, if it demands that the accused be held for trial, the prosecuting attorney conducts the prosecution at the ensuing trial.

The clerk, or recording officer, is generally appointed by the court, though he may be elected by popular vote. The constable or sheriff is elected by popular vote. The clerk and the constable are charged with the execution of all orders, judgments, and decrees of the court.

C. POWERS AND PROCEDURE

613. RELATION OF STATE TO FEDERAL COURTS.--The framework of American government includes a dual system of courts, the Federal courts and the state courts. The jurisdiction of the Federal courts is specifically defined by the Federal Const.i.tution, while the state courts have a jurisdiction which is limited only by the prohibitions of the state and Federal Const.i.tutions. The two systems of courts are independent in the exercise of their respective powers, and have separate jurisdictions. In some cases, however, the state courts have a concurrent jurisdiction with the Federal courts, and a litigant has a choice of tribunals before which to bring suit. In most suits the decision of the state supreme court is final, but cases involving Federal law may be appealed for final decision to the Supreme Court of the United States.

614. POWER TO DECLARE STATE STATUTES UNCONSt.i.tUTIONAL.--Just as the Federal courts are the final interpreters of all domestic law, so the state courts have the power to pa.s.s upon the const.i.tutionality of statutes enacted either by the state legislature or by local law- making bodies. The state const.i.tution is the fundamental law of the state, and it is the duty of the state courts to see that all state and local legislative acts conform to this fundamental law.

615. POWER OVER EXECUTIVE OFFICIALS.--Through their power to pa.s.s upon the legality of executive acts, the state courts exercise some degree of control over executive officials. If a state governor were illegally to remove an official from office, for example, the courts could reinstate the latter.

The state courts also have the power to issue writs of mandamus and injunction. The former may be used, under certain circ.u.mstances, to compel an executive officer to perform his duty; the latter writ may be used to prevent either state officials or private individuals from committing illegal acts.

616. CIVIL JURISDICTION.--The jurisdiction of the state courts is either civil or criminal.

The purpose of civil law is to protect the rights of the individual and to redress his wrongs. The individual rights which are the concern of civil law fall under three heads: First, the right of personal security, including the right of protection against violence; second, the right of personal liberty, including the rights set forth in the bill of rights of the state const.i.tution; third, the rights of property, including the right to acquire and hold property, and the right to demand fulfilment of contracts made under state law.

617. CIVIL PROCEDURE.--If an individual believes that his rights have been violated, he, as plaintiff, is ent.i.tled to file a complaint with the proper court. The sheriff or constable then summons the defendant to appear in court, and the clerk of the court issues a summons or subpoena to all witnesses which either party to the suit desires to have testify. Generally either party may demand a trial by jury. Both plaintiff and defendant are ordinarily represented by counsel which present the different sides of the case to the judge and jury. The judge decides what evidence may be properly presented to the jury.

After the closing argument of the plaintiff's counsel, the judge instructs the jury on the legal points involved in the case. The jury then retire and attempt to reach an unanimous decision. If able so to agree, they return a verdict for either plaintiff or defendant, and after the verdict has been accepted by the court, judgment is rendered. If the jurors have been unable to come to an unanimous decision, the case is ordinarily tried with another jury, though in a few states an unanimous verdict in civil cases is not required.

If the decision of the court is accepted as final, the judgment is enforced. On the other hand, the dissatisfied party may appeal the case to the next higher court on the ground that the verdict was contrary to the weight of evidence, or because of errors of law committed by the judge. Under certain circ.u.mstances the judge who tries the case may be induced to grant a new trial.

618. CRIMINAL JURISDICTION.--The purpose of criminal law is to punish those who have committed public wrongs, _i.e._ wrongs against the state or community. Crimes are of two types: first, felonies, including such grave offences as murder, arson, burglary, and larceny; and second, misdemeanors, including such lesser offenses as bribery, knowingly receiving stolen goods, libel, a.s.sault and battery, and disturbance of the peace. Usually felonies are punished either by death, or by a long prison sentence. Misdemeanors are ordinarily punished by fines or by imprisonment for a short term.

619. CRIMINAL PROCEDURE.--A criminal proceeding usually begins with the arrest of the accused person. Generally, though not always, arrest is in pursuance of a warrant. As soon after arrest as possible, the accused is brought before a magistrate for a preliminary examination.

If the examining magistrate finds that there is probable cause for holding him for trial, the accused is committed to jail to await trial. Unless the charge is murder, however, the defendant may be released on bail.

If the charge is a serious one, indictment by the grand jury is the next step. If this jury decides that the evidence is insufficient, the charge is dismissed and the prisoner released. The grand jury meets in secret, and hears only the charges against the accused. These are generally presented by the prosecuting attorney. After the defendant is indicted, the prisoner is brought into court and allowed to plead.

If he pleads guilty, the judge may forthwith impose sentence and there is no trial. If the plea is "not guilty," a trial is arranged, a jury of twelve men impanelled, and the trial begins.

The case is opened by the prosecuting attorney, since it is the duty of the state to a.s.sume the defendant innocent until he is proved guilty. The prosecuting attorney presents his witnesses, each of which the defendant's attorney may cross-examine, and in turn allows the defendant's attorney to present the defense. The prisoner is not questioned at any stage in the trial, unless he is willing to take the stand as a witness in his own behalf.

After the prosecuting attorney and the defendant's counsel have completed their case, the judge sums up the evidence brought out by each side, and instructs the jury as to the law involved. The jury then retire and attempt to reach a verdict. Generally such a verdict must be unanimous, and if this cannot be secured, the jury is dismissed and the case is held for re-trial. If the verdict is "not guilty," the prisoner is discharged; if he is found guilty, sentence is imposed by the court, either immediately or at some future date. [Footnote: For a discussion of the legal aspects of the problem of crime, see Chapter XXI.]

QUESTIONS ON THE TEXT

1. What is meant by the term "common law"?

2. Define equity. How did it arise?