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
constitution 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 municipal 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
constitutionality 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
class 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 petitions 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 classes 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 Massachusetts
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, Massachusetts, 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 class 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 classes: (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 trespassing 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 rebuttal,
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 circumstances 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 constitutions 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 institutions of the common law.
The number of persons constituting 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 assigning 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.
=Illustrative 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.
RESEARCH QUESTIONS
1. What are the several grades of courts in your state? In what judicial
district or circuit do you live? Who is the judge for that district or
circuit?
2. What are the terms of the supreme court justices? The circuit or
district judges? The county judges? Do you think these terms are too
short? Would a good behavior term be better?
3. What is the pay of judges in your state? Do you think these salaries
are large enough to attract the best lawyers of the state? Are the
salaries fixed by the constitution or by act of the legislature?
4. How are the judges chosen? Has the existing method given
satisfaction? Do you think judges should engage in politics? Where they
are chosen by popular election, should they canvass the district or
state as other candidates do?
5. Are there separate chancery (equity) courts in your state? separate
probate courts? separate juvenile courts? If not, what courts have
jurisdiction of such matters as belong to such courts?
6. How are justices of the peace in your state chosen? What is the
extent of their jurisdiction in civil cases? in criminal cases? What is
the method of compensating justices of the peace?
7. How often is the circuit court held in your district? How often the
county court?
8. How are juries selected in your state? How could a better class of
jurors be selected? Do the good citizens show a disposition to shirk
jury duty? What are the merits and demerits of the jury system? Do you
think a unanimous verdict ought to be required in criminal cases?
9. Is the grand jury retained in your state for making indictments? If
not, how are indictments prepared? What is the difference between an
indictment and an information?
10. Why are citizens never justified in resorting to lynch law even when
there is a flagrant miscarriage of justice? Has there ever been a case
of lynching in your county?
11. What are some of the causes for the "delays of the law"? How could
delays be shortened and the trial of cases made more prompt?
12. What are the qualities of a good judge? Upon whom are the rights of
the people most dependent, the executive officers or the judges?