AMERICAN EDUCATIONAL SERIES
STUDIES IN CIVICS
BY JAMES T. McCLEARY, M.C.
LATE TEACHER OF CIVICS AND HISTORY IN THE STATE NORMAL SCHOOL
MANKATO, MINNESOTA
LIFE MEMBER MINNESOTA HISTORICAL SOCIETY
REVISED TO 1897
[Illustration: (House of Representatives) UNITED STATES CAPITOL (Senate.)]
TO THE MEMBERS OF MY CLASSES IN CIVICS, WHOSE QUESTIONS HAVE AIDED ME IN
DETERMINING WHAT SUBJECTS TO TREAT, AND WHOSE EARNESTNESS AND INTELLIGENCE
HAVE MADE IT A PLEASURE TO BE THEIR TEACHER, THIS BOOK IS AFFECTIONATELY
INSCRIBED.
PREFACE.
The thought constantly in mind in the preparation of this book has been to
furnish useful material in usable form.
Attention is invited to the scope of the work. The Constitution of the
United States, not a mere abstract of it but a careful study of the text,
is properly given much space but is not allowed a monopoly of it. Each of
our governmental institutions deserves and receives a share of
consideration. The order of presentation--beginning with the town, where
the student can observe the operations of government, and proceeding
gradually to the consideration of government in general--is based upon
conclusions reached during eighteen years of experience in teaching this
subject.
Matter to be used chiefly for reference is placed in the appendix.
Attention is asked to the amount of information which, by means of
tabulations and other modes of condensation, is therein contained.
Documents easily obtainable, such as the Declaration of Independence, are
omitted to make room for typical and other interesting documents not
usually accessible.
Is this book intended to be an office-holders' manual? No; but it _is_
intended to help students to get an insight into the way in which public
business is carried on.
Is it designed as an elementary treatise on law? No; but the hope is
indulged that the young people who study it will catch something of the
_spirit_ of law, which to know is to respect.
CONTENTS.
PREFACE,
TO TEACHERS,
TO STUDENTS,
PRELIMINARY CHAPTER.
GOVERNMENT: WHAT IT IS AND WHY IT IS,
PART I.--GOVERNMENT WITHIN THE STATE.
CHAPTER.
I.--THE TOWN: WHY AND HOW ORGANIZED, ETC.,
II.--PRIMITIVE MODES OF ADMINISTERING JUSTICE,
III.--PROCEEDINGS IN A JUSTICE COURT,
IV.--THE INCORPORATED VILLAGE,
V.--THE CITY,
VI.--THE COUNTY,
VII.--ESTABLISHING JUSTICE IN THE COUNTY,
VIII.--HISTORICAL,
PART II.--THE STATE.
IX.--STATES: WHY AND HOW CREATED,
X.--STATE CONSTITUTIONS,
XI.--DEPARTMENTS OF GOVERNMENT,
XII.--THE LEGISLATIVE DEPARTMENT,
XIII.--THE EXECUTIVE DEPARTMENT,
XIV.--OTHER STATE OFFICERS,
XV.--THE JUDICIAL DEPARTMENT,
XVI.--RETROSPECT AND PROSPECT,
PART III.--THE NATION.
XVII.--THE CAUSES OF THE REVOLUTION,
XVIII.--THE ARTICLES OF CONFEDERATION,
XIX.--THE ORIGIN OF THE CONSTITUTION,
XX.--THE CONSTITUTION: PREAMBLE,
XXI.--STRUCTURE OF THE LEGISLATIVE BRANCH,
XXII.--POWERS OF CONGRESS,
XXIII.--THE EXECUTIVE BRANCH,
XXIV.--THE JUDICIAL BRANCH,
XXV.--THE RELATIONS OF THE STATES,
XXVI.--MODES OF AMENDING THE CONSTITUTION,
XXVII.--MISCELLANEOUS PROVISIONS,
XXVIII.--RATIFICATION OF THE CONSTITUTION,
XXIX.--THE AMENDMENTS,
PART IV.--GOVERNMENT IN GENERAL.
XXX.--FORMS OF GOVERNMENT,
PART V.--COMMERCIAL LAW.
XXXI.--CONTRACTS,
XXXII.--AGENCY,
XXXIII.--PARTNERSHIP,
XXXIV.--CORPORATIONS,
XXXV.--COMMERCIAL PAPER,
APPENDIX.
A.--FORMS,
B.--TABLES,
C.--HOW SOME THINGS ARE DONE,
D.--SOME PRINCIPLES OF INTERNATIONAL LAW,
E.--DOCUMENTS,
GENERAL INDEX,
TO TEACHERS.
Highly competent teachers are the very ones who receive most kindly
suggestions meant to be helpful. For such these words are intended.
The local organizations are so related that it is advisable for all
classes to consider each of them. Especial attention should, however, be
given to the organization (town, village or city) in which the school is.
Here considerable time can be profitably spent, and the matter in the book
may be much amplified. Here must be laid the basis of future study.
Certain typical instruments deserve careful study. For a student to have
made out understandingly an official bond, for instance, is for him to
have gained greatly in intelligence.
It will be of great advantage to the class for the teacher to have a
complete set of the papers whose forms are given in Appendix A. These may
be obtained at almost any newspaper office, at a cost of about 50 cents.
A scrap-book or series of envelopes in which to file newspaper clippings
illustrative of the every-day workings of government, may be made very
useful. Pupils should be permitted and encouraged to contribute.
One good way to review is for the teacher to give out, say once in two
weeks, a set of twenty-five or more questions, each of which may be
answered in a few words; have the pupils write their answers; and the
correct answers being given by teacher or pupils, each may mark his own
paper. Each pupil may thus discover where he is strong and where weak.
The questions given for debate may be discussed by the literary society.
Or for morning exercises, one student may on a certain day present one
side of the argument, and on the following day the negative may be brought
out by another student.
A student should not be required to submit his good name to the chances of
answering a certain set of questions, however excellent, at the
examination, when from anxiety or other causes he may fall far short of
doing himself justice. One good plan is to allow each student to make up
50 percent of his record during the progress of the work, by bringing in,
say, five carefully prepared papers. One of these may be a _resumé_ of
matter pertaining to his local organization; another may be an account of
a trial observed, or other governmental work which the student may have
seen performed; a third may be a synopsis of the president's message; the
fourth, a general tabulation of the constitution; the fifth, a review of
some book on government, or a paper on a subject of the student's own
choice.
Among reference books, every school should have at least the Revised
Statutes of the state and of the United States, the Legislative Manual of
the state, a good political almanac for the current year, the
Congressional Directory, and Alton's Among the Lawmakers.
A Teachers' Manual, giving answers to the pertinent questions contained
herein, and many useful hints as to the details of teaching Civics, is
published in connection with this book.
TO STUDENTS.
You will notice in chapter one that at the close of nearly every paragraph
questions are thrown in. They are inserted to help you cultivate in
yourself the very valuable habit of rigid self-examination. We are all
liable to assume too soon that we have the thought. Not to mar the look of
the page, the questions are thenceforward placed only at the close of the
chapters.
You will soon discover that these questions are so framed as to require
you to read not only on the lines and _between_ them, but also right down
_into_ them. Even then you will not be able to answer all of the
questions. The information may not be in the book at all. You may have to
look around a long time for the answer.
If you occasionally come to a question which you can neither answer nor
dismiss from your mind, be thankful for the question and that you are
bright enough to be affected in this way. You have doubtless discovered
that some of your best intellectual work, your most fruitful study, has
been done on just such questions.
After studying a provision of the constitution of the United States, you
should be able to answer these four questions: 1. What does it _say?_ 2.
What does it _mean?_ 3. _Why_ was the provision inserted? 4. How is it
carried into practical effect? Some of the provisions should be so
thoroughly committed to memory that at any time they may be accurately
quoted. The ability to quote exactly is an accomplishment well worth
acquiring.
After you have got through with a line of investigation it is a good thing
to make a synopsis of the conclusions reached. Hints are given at
appropriate places as to how this may be done. But the doing of it is left
to you, that you may have the pleasure and profit resulting therefrom.
Finally, without fretting yourself unnecessarily, be possessed of a "noble
dissatisfaction" with vague half-knowledge. Try to see clearly. Government
is so much a matter of common sense, that you can assuredly understand
much of it if you determine so to do.
STUDIES IN CIVICS.
PRELIMINARY CHAPTER.
GOVERNMENT: WHAT IT IS AND WHY IT IS.
At the very beginning of our study, two questions naturally present
themselves: First. What is government? Second. Why do we have such a
thing?
These questions are much easier to ask than to answer. The wisest men of
the ages have pondered upon them, and their answers have varied widely.
Yet we need not despair. Even boys and girls can work out moderately good
answers, if they will approach the questions seriously and with a
determination to get as near the root of the matter as possible.
Beginning without attempting an exact definition of government, because we
all have a notion of what it is, we notice that only certain animals are
government-forming. Among these may be mentioned the ant, the bee, and
man. The fox, the bear, and the lion represent the other class. If we
should make two lists, including in one all the animals of the first class
and in the other all those of the second class, we should make this
discovery, that government-forming animals are those which by nature live
together in companies, while the other class as a rule live apart. The
generalization reached is, that _only gregarious animals form
governments_. We would discover upon further investigation that the
greater the interdependence of the individuals, the more complex the
government.
Confining our attention now to man, whose government is the most complex,
we may put our generalization into this form: Man establishes government
because _by nature he is a social being_. This may be taken as the
fundamental reason. Let us now proceed to trace the relation between cause
and effect.
In order that people may go from place to place to meet others for
pleasure or business, roads are needed. Some of these roads may cross
streams too deep for fording, so bridges must be provided. These things
are for the good of all; they are public needs, and should be provided by
the public. But "what is every body's business is nobody's business." It
follows that the public must appoint certain persons to look after such
things. By the act of appointing these persons, society becomes to that
extent organized. We see, then, that society organizes in order to provide
certain public improvements, _to carry on certain public works_.
For his own preservation, man is endowed with another quality, namely,
selfishness. Sometimes this is so strong in a person as to cause him to
disregard the rights of others. By experience man has learned that _every_
person is interested in seeing that conflicting claims are settled on a
better basis than that of the relative strength of the contestants. In
other words, all are interested in the prevalence of peace and the
rightful settlement of disputes. That this work may surely be done, it is
obvious that society must appoint certain persons to attend to it; that
is, society organizes _to establish justice._
Communities take their character from that of the individuals composing
them, therefore communities are selfish. A third reason appears, then, for
the organization of society, namely, _the common defense._
But this organization of society is the very thing that we call
government. We may, therefore, answer the two questions proposed at the
beginning in this way:
_Government is the organization of society to carry on public works, to
establish justice, and to provide for the common defense._
The term _government_ is also applied to the body of persons into whose
hands is committed the management of public affairs.
To show that government is a necessity to man, let us imagine a company of
several hundred men, women, and children, who have left their former home
on account of the tyranny of the government. So harshly have they been
treated, that they have ascribed all their misery to the thing called
government, and they resolve that they will have none in their new home.
They discover an island in the ocean, which seems never to have been
occupied, and which appears "a goodly land." Here they resolve to settle.
They help each other in building the houses; each takes from the forest
the wood that he needs for fuel; they graze the cattle in a common meadow;
they till a common field and all share in the harvest. For a time all goes
well. But mutterings begin to be heard. It is found that some are
unwilling to do their share of the work. It becomes manifest to the
thoughtful that community of property must be given up and private
ownership be introduced, or else that the common work must be regulated.
In the latter case, government is established by the very act of
regulation; they are establishing justice. If they resolve to adopt
private ownership, industry will diversify, they will begin to spread out
over the island, and public improvements will be needed, such as those
specified above. The conflict of interests will soon necessitate tribunals
for the settlement of disputes. And thus government would, in either case,
inevitably be established. A visit from savages inhabiting another island
would show the utility of the organization for common defense.
Thus government seems a necessary consequence of man's nature.
In this country we have the general government and state governments, the
latter acting chiefly through local organizations. For obvious reasons,
the common defense is vested in the general government. For reasons that
will appear, most of the work of public improvement and establishing
justice is entrusted to the state and local governments.
These we shall now proceed to study, beginning at home.
QUERIES.--Would government be necessary if man were morally perfect? Why
is this organization of society called _government?_
PART I.
GOVERNMENT WITHIN THE STATE.
CHAPTER I.
THE TOWN: WHY AND HOW ORGANIZED; OFFICERS; TOWN BUSINESS.
Necessity.--Now instead of a company going to an island to found new
homes, let us think of immigrants to a new part of a state.
Like the people on the island, they will need roads, bridges, and schools;
and they will desire to preserve the local peace. Hence they, too, will
need to organize as a political body.
Size.--Since these people are going to meet at stated periods to agree
upon the amounts to be put into public improvements and to select officers
to carry out their wishes, the territory covered by the organization
should not be very large. It should be of such a size that every one
entitled to do so can reach the place of meeting, take part in the work
thereof, and return home the same day, even if he has no team.
Basis.--Will anything be found already done to facilitate matters? Yes.
Those parts of the state open to settlement will be found surveyed into
portions six miles square. These squares are called in the survey
"townships," plainly indicating that they were meant by the general
government to be convenient bases for the organization of "towns." And
they have been so accepted.
Draw a township. Subdivide it into sections and number them in accordance
with the U.S. survey. Subdivide a section into forties, and describe each
forty. Why do we have such divisions of a township? Locate your father's
farm. What is the difference between a _township_ and a _town?_ [Footnote:
In some states the terms "congressional township" and "civil township" are
used.]
Corporate Powers.--A town is in some respects like an individual. It can
sue and be sued. It can borrow money. It can buy or rent property needed
for public purposes. And it can sell property for which it has no further
use. Because a town can do these things as an individual can it is called
a corporation, and such powers are called corporate powers.
When we say that "the town" can do these things, we mean of course that
the people of the town as a political body can do them, through the proper
officers.
Officers Needed.--The town needs one or more persons to act for it in its
corporate capacity and to have general charge of its interests.
Should there be one, or more than one? Why? How many are there?
Every business transaction should be recorded, and the town should have a
recording officer or secretary.
What is the recording officer in this town called? What is his name? Which
officer would naturally be the custodian of public papers?
It takes money to build bridges and to carry on other public works, and
the town needs some one to take charge of the public funds.
What is the officer called? Who occupies that position in this town? How
is he prevented from misappropriating the money belonging to the people?
Our plan for raising public money for local purposes is, in general, that
each person shall contribute _according to the value of his property._
Hence the town needs a competent and reliable man to value each person's
property.
What is such an officer called? What is the name of the one in this town?
Is any property exempt from taxation? Why? Just how is the value of the
real estate in the town ascertained for the purpose of taxation? The value
of the personal property? Get a list and find out what questions this
officer asks. Read the statement at the bottom of the list carefully, and
then form an opinion of a person who would answer the questions
untruthfully for the purpose of lowering his taxes.
The immediate care of the roads will demand the attention of one or more
officers.
How many in this town? What are such officers called? Name them.
Differences about property of small value sometimes arise, and to go far
from home to have them settled would involve too much expense of time and
money; hence the necessity of local officers of justice. These officers
are needed also because petty acts of lawlessness are liable to occur.
How many justices of the peace are there in each town? Why that number?
What is the extent of their jurisdiction?
The arrest of criminals, the serving of legal papers, and the carrying out
of the decisions of justices of the peace, make it necessary to have one
or more other officers.
What are such officers called? How many in each town? Why? Look up the
history of this office; it is interesting.
The public schools of the town may be managed either by a town board of
trustees, who locate all of the school-houses, engage all of the teachers,
and provide necessary material for all of the schools in the town; or the
town may be divided into districts, the school in each being managed by
its own school board.
Does the township system or the district system prevail in this state?
Name some state in which the other system prevails.
How Chosen.--In this country most of the public officers are chosen by the
people interested. The great problem of election is how to ascertain the
real will of those entitled to express an opinion or have a choice. And
all the arrangements for conducting elections have in view one of two
things: either to facilitate voting or to prevent fraud. The town serves
as a convenient voting precinct.
Find out from the statutes or from the town manual or by inquiry, when the
town meeting is held; how notice is given; how it is known who may vote;
who are judges of election; how many clerks there are; how voting is done;
how the votes are counted and the result made known; what reports of the
election are made. Give the reason for each provision. Can a person vote
by proxy? Why? What is to prevent a person from voting more than once? If
the polls are open seven hours, and it takes one minute to vote, how many
persons can vote at one polling place? What may be done in case there are
more than that number of voters in the town? How are road overseers
elected, and in what part of the day? Why then? What other business is
transacted at town meeting? How do the people know how much money will be
needed for the coming year's improvements? How do they learn the nature
and expense of last year's improvements?
Give four general reasons for our having towns.
* * * * *
PRACTICAL WORK FOR STUDENTS.
I. ORGANIZING A TOWN.
Prepare in due form a petition to the proper authorities asking that a new
town be organized. [Footnote: For forms see Appendix. If necessary, all
the pupils in the room or school may act as "legal voters." (This
"Practical Work" may be omitted until the review, if deemed best.)] Be
sure that the order establishing the new town is duly made out, signed,
attested and filed. Give reasons for each step.
II. HOLDING ANNUAL TOWN MEETING.
1. Preliminary.--What report does each road overseer make to the
supervisors? When is the report due? What do the supervisors require this
information for?
Who gives notice of the town meeting? When? How?
When does the town treasurer make his report to the persons appointed to
examine his accounts? When does this examination take place? What is its
purpose?
What report does the board of supervisors make to the people at the town
meeting? When is it prepared? Why is it necessary?
Why so many preliminaries?
2. The Town Meeting.--That everything may be done "decently and in order,"
it will be necessary to consult carefully the statutes or the town manual.
Be sure
(a) That the proper officers are in charge.
(b) That the order of business is announced and followed.
(c) That the polls are duly declared open.
(d) That the voting is done in exact accordance with law.
(e) That general business is attended to at the proper time.
(f) That reports of officers are duly read and acted upon.
(g) That appropriations for the succeeding year are duly made.
(h) That the minutes of the meeting are carefully kept.
(i) That the polls are closed in due form.
(j) That the votes are counted and the result made known according to law.
(k) That all reports of the meeting are made on time and in due form.
3. After Town Meeting.--See that all officers elected "qualify" on time
and in strict accordance with law. Especial care will be needed in making
out the bonds.
Town clerk must certify to proper officer the tax levied at town meeting.
III. LAYING OUT AND MAINTAINING ROADS.
1. Laying out a Road.--Make out a petition for a town road, have it duly
signed and posted. In due season present it to the supervisors who were
elected at your town meeting.
The supervisors, after examining the petition carefully and being sure
that it is in proper form and that it has been duly posted, will appoint a
time and place of hearing and give due notice thereof.
When the day of hearing arrives they will examine the proofs of the
posting and service of the notices of hearing before proceeding to act
upon the petition.
Having heard arguments for and against the laying of the road, the
supervisors will render their decision in due form.
In awarding damages, the supervisors will probably find four classes of
persons: first, those to whom the road is of as much benefit as damage,
and who admit the fact; second, those who should have damages, and are
reasonable in their demands; third, those who claim more damages than they
are in the judgment of the supervisors entitled to; and fourth, those who
from some cause, (absence, perhaps,) do not present any claim. From the
first class, the supervisors can readily get a release of damages. With
the second, they can easily come to an agreement as to damages. To the
third and fourth, they must make an award of damages. Let all of these
cases arise and be taken care of.
The supervisors must be careful to issue their road order in proper form,
and to see that the order, together with the petition, notices, affidavits
and awards of damages, are filed correctly and on time. The town clerk
must read the law carefully to ascertain his duty, and then perform it
exactly. See that fences are ordered to be removed. Let one of the persons
who feels himself aggrieved by the decision of the supervisors, "appeal"
to a proper court. Let this be done in due form. As each step is taken,
let the reasons for it be made clear.
2. Maintaining Roads.--Road overseers return the list of persons liable to
road labor. How are these facts ascertained, and when must the "return" be
made?
Supervisors meet and assess road labor, and sign road tax warrants. When
and how is this done?
How is the road tax usually paid? How else may it be paid? How does the
overseer indicate that a person's tax is paid? If a person liable to road
tax does not "commute," and yet neglects or refuses to appear when duly
notified by the road overseer, what can the latter do about it? How is
delinquent road tax collected? How can a person who has paid his tax prove
that he has paid it?
Under which of the three great purposes of government mentioned in the
preliminary chapter does the making of roads come?
THE TOWN--_Continued_.
THE SCHOOLS.
Does the town system or the district system prevail in this state? If the
latter, tell how a school district is organized. Give an account of the
organization of this district.
How many and what officers have charge of the schools? State the duties of
each. Name the officers in this district. When are the officers chosen,
and how long do they serve? Are all chosen at once? Why? How do they
"qualify?" Are women eligible to school offices? To any other?
Did you ever attend the annual meeting? When is it held? Why held then?
Who take part? What business is transacted? What are "special" school
meetings?
What expenses must be met in having a school? Where does the money come
from? How does the treasurer get it into his possession? What is to
prevent his misusing it?
By whom is the teacher chosen? Why not elect the teacher at the annual
meeting? Get a teacher's contract and find out who the contracting parties
are, and what each agrees to do. Why is the contract in writing? How many
copies of it are made? Who keep them, and why?
If you had a bill against the district, how would you proceed to get your
money? If the district refused or neglected to pay you, what could you do?
If some one owed the district and refused to pay, what could it do?
Who owns the school buildings and grounds? How was ownership obtained? If
it seemed best to erect a new schoolhouse in some other part of the
district, what could be done with the present buildings and grounds? Could
the district buy land for other than school purposes? Could it lend money
if it had any to spare? If the district had not money enough to erect its
buildings, what could it do? What are the corporate powers of a district?
_Questions for Debate._
_Resolved,_ That it is unfair to tax a bachelor to support a school.
_Resolved,_ That the town system is better than the district system.
CHAPTER II.
PRIMITIVE MODES OF ADMINISTERING JUSTICE.
Trial by Ordeal.--Boys settle some matters about which they cannot agree
by "tossing up a penny," or by "drawing cuts." In a game of ball they
determine "first innings" by "tossing the bat." Differences in a game of
marbles, they settle by guessing "odd or even," or by "trying it over to
prove it." In all these modes of adjustment there is an appeal to
_chance._ Probably behind these practices is the feeling that the boy who
ought to win will somehow guess right. This appealing to chance to settle
questions of fact is characteristic of society in its primitive state.
Modes of establishing justice similar in principle to these boy practices
prevail to this day among superstitious peoples. They have prevailed even
in Europe, not only among people of low mental power, but also among the
cultured Greeks. Among our own Saxon ancestors the following modes of
trial are known to have been used: A person accused of crime was required
to walk blindfolded and barefoot over a piece of ground on which hot
ploughshares lay at unequal distances, or to plunge his arm into hot
water. If in either case he escaped unhurt he was declared innocent. This
was called Trial by Ordeal. The theory was that Providence would protect
the innocent.
Trial by Battle.--Sometimes boys settle their disputes by _fighting_.
This, too, was one of the modes of adjudication prevalent in early times
among men. Trial by Battle was introduced into England by the Normans. "It
was the last and most solemn resort to try titles to real estate."
[Footnote: Dole's Talks about Law, p. 53.] The duel remained until
recently, and indeed yet remains in some countries, as a reminder of that
time. And disputes between countries are even now, almost without
exception, settled by an appeal to arms. Perhaps the thought is that "he
is thrice armed that hath his quarrel just." Sometimes when one of the
boys is too small to fight for his rights, another boy will take his part
and fight in his stead. Similarly, in the Trial by Battle, the parties
could fight personally or by "champion." Interesting accounts of this mode
of trial are given by Green and Blackstone, and in Scott's "Talisman."
Arbitration.--Two boys who have a difference may "leave it to" some other
boy in whom they both have confidence. And men did and do settle disputes
in a similar way. They call it settlement by Arbitration.
A boy would hardly refer a matter for decision to his little brother. Why?
Folk-Moot.--Still another common way for two boys to decide a question
about which they differ is to "leave it to the boys," some of whom are
knowing to the facts and others not. Each of the disputants tells his
story, subject to more or less interruption, and calls upon other boys to
corroborate his statements. The assembled company then decides the matter,
"renders its verdict," and if necessary carries it into execution. In this
procedure the boys are re-enacting the scenes of the _Folk-moot_ or town
meeting of our Saxon ancestors.
Boy-Courts.--Let us look at this boy-court again to discover its principal
elements.
In the first place, we see that _every_ boy in the crowd feels that he has
a right to assist in arriving at the decision, that "the boys"
collectively are to settle the matter. In other words, that _the
establishment of justice is a public trust._ So our Saxon forefathers used
to come together in the Folk-moot and as a body decide differences between
man and man. The boys have no special persons to perform special duties;
that is, no court officers. Neither, at first, did those old Saxons.
Secondly, in the boy-court the _facts_ in the case are brought out by
means of _witnesses_. So it was in the Folk-moot, and so it is in most
civilized countries today. Among those old Saxons the custom grew up of
allowing the facts in the case to be determined by _twelve_ men of the
neighborhood, _who were most intimately acquainted with those facts_. When
they came over to England these Saxons brought this custom with them, and
from it has been developed the Trial by Jury. The colonists of this
country, most of whom came from England, brought with them this important
element in the establishment of justice, and it is found today in nearly
all the states.
Again, when in the boy-court the facts of the case have been established
and it becomes necessary to apply the rules of the game to the particular
case, the boys frequently, invariably in difficult cases, turn to some boy
or boys known to be well versed in the principles of the game, and defer
to his or their opinion. And, similarly, in the Folk-moot, much deference
was paid in rendering judgment to the old men who for many years had
helped to render justice, and who, in consequence, had much knowledge of
the customs, unwritten laws, in accordance with which decisions were
rendered. In this deference to one or more persons who are recognized as
understanding the principles involved in the case, we see the germ of
_judgeship_ in our present courts.
And finally, a boy naturally reserves the right, mentally or avowedly, of
_appealing_ from the decision of the boys to the teacher or his father, in
case he feels that he has been unjustly dealt with.
Thus we see that the principal elements of the courts of today, the
establishment of justice as a public trust, the determination of the facts
by means of witnesses and a jury, the application of the law by one or
more judges, the right of appeal to a higher court, are not artificial,
but in the nature of things. We inherited them from our primitive
ancestors, and in that sense they may be said to have been imposed upon
us. But their naturalness appears in the fact that boys when left to
themselves introduce the same elements into their boy-courts.
CHANGES MADE IN COURSE OF TIME.
In the Jury System.--The jurors were originally, as has been said, persons
acquainted with the facts. After the Norman conquest, it came about that
the jury consisted of twelve persons disinterested and _unacquainted_ with
the facts. Probably the change gradually came about from the difficulty of
getting twelve men eligible to the jury who knew of the facts. Persons
ineligible to the jury were then invited to give it information, but not
to join it in the verdict. The next step, taken about 1400 A.D., was to
require these witnesses to give their evidence in open court, subject to
examination and cross-examination. The testimony of the witnesses,
however, was still merely supplementary. Then in the time of Queen Anne,
about 1707 A.D., it was decided that any person who had knowledge of the
facts of the case should appear as a _witness_, that the jury should
consist of persons unacquainted with the facts, and that the verdict
should be rendered in accordance with the evidence. And so it is to this
day, both in England and America. [Footnote: The best history of the jury
system is probably Forsyth's.]
"It is not true, however, that a man is disqualified from serving on a
jury simply because he has heard or read of the case, and has formed and
expressed some impression in regard to its merits; if it were, the
qualifications for jury service in cases that attract great attention
would be ignorance and stupidity. The test, therefore, is not whether the
juryman is entirely ignorant of the case, but whether he has formed such
an opinion as would be likely to prevent him from impartially weighing the
evidence and returning a verdict in accordance therewith." [Footnote:
Dole's Talks about Law, p. 59.]
In the Officers.--As has been said, there were in the old Saxon courts no
court officers. But quite early the necessity for such officers became
manifest. And several of the offices then established have come down to
us. Some of them, however, have been so modified in the progress of time
as to be hardly recognizable.
CHAPTER III.
PROCEEDINGS IN A JUSTICE COURT.
I. IN ORDINARY CIVIL ACTIONS.
Definitions.--A _Civil Action_ is one having for its object the protection
or enforcement of a private right or the securing of compensation for an
infraction thereof. For instance a suit brought to secure possession of a
horse, or to secure damages for a trespass is a civil action. The person
bringing the action is called the _plaintiff_; the one against whom it is
brought, the _defendant_. The plaintiff and the defendant are called the
_parties_ to the action.
_Jurisdiction._--A justice of the peace has jurisdiction within the county
in most civil actions when the amount in controversy does not exceed a
certain sum, usually one hundred dollars. (See p. 296.)
PRELIMINARY TO TRIAL.
_Complaint and Summons._--In bringing a civil action, the plaintiff or his
agent appears before the justice of the peace and files a Complaint. In
this he states the cause of the action. The justice then issues a Summons.
This is an order to a sheriff or constable commanding him to notify the
defendant to appear before the justice at a certain time and place to make
answer to the plaintiff's demands. (Form on p. 277.)
Sometimes on bringing an action or during its progress a writ of
attachment is obtained. To secure this writ, the creditor must make
affidavit to the fact of the debt, and that the debtor is disposing or
preparing to dispose of his property with intent to defraud him, or that
the debtor is himself not reachable, because hiding or because of
non-residence. In addition, the creditor must give a bond for the costs of
the suit, and for any damages sustained by the defendant. The justice then
issues the writ, which commands the sheriff or constable to take
possession of and hold sufficient goods of the debtor and summon him as
defendant in the suit.
Another writ sometimes used is the writ of replevin. To secure this writ,
the plaintiff must make affidavit that the defendant is in wrongful
possession of certain (described) personal property belonging to the
plaintiff. The plaintiff then gives a bond for the costs of the suit and
for the return of the property in case he fails to secure judgment, and
for the payment of damages if the return of the property cannot be
enforced, and the justice issues the writ. This commands the sheriff or
constable to take the property described and turn it over to the
plaintiff, and to summon the defendant as before.
Pleadings.--The next step in the process, in any of the cases, is the
filing of an Answer by the defendant, in which he states the grounds of
his defense. The complaint of the plaintiff and the answer of the
defendant constitute what are called the pleadings. [Footnote: For a more
extensive discussion of pleadings, see chapter VII.; or Dole, pp. 30-42.]
If the answer contains a counter-claim, the plaintiff is entitled to a
further pleading called the Reply. The pleadings contain simply a
statement of the facts upon which the parties rely in support of their
case. No evidence, inference or argument is permitted in them.
Issue.--It is a principle of pleading that "everything not denied is
presumed to be admitted." The fact or facts asserted by one party and
denied by the other constitute the issue. If the defendant does not make
answer on or before the day appointed in the summons and does not appear
on that day, judgment may be rendered against him. If the plaintiff fail
to appear, he loses the suit and has to pay the costs. For sufficient
cause either party may have the suit adjourned or postponed for a short
time.
Jury.--On demand of either party a jury must be impaneled. The jury
usually consists of twelve persons, but by consent of the parties the
number may be less. The jury is impaneled as follows: The justice directs
the sheriff or constable to make a list of twenty-four inhabitants of the
county qualified to serve as jurors in the district court, or of eighteen
if the jury is to consist of six persons. Each party may then strike out
six of the names. The justice then issues a venire [Footnote: For forms,
see page 280.] to the sheriff or a constable, directing him to summon the
persons whose names remain on the list to act as jurors.
Witnesses.--If any of the witnesses should be unwilling to come, the
justice issues a subpoena [Footnote: For forms, see page 279.] commanding
them to appear. The subpoena may contain any number of names and may be
served by any one. It is "served" by reading it to the person named
therein, or by delivering a copy of it to him. A witness, however, is not
bound to come unless paid mileage and one day's service in advance.
THE TRIAL.
Opening Statement.--The usual procedure is as follows: After the jury has
been sworn, the plaintiff's attorney reads the complaint and makes an
opening statement of the facts which he expects to prove. The purpose of
the opening statement is to present the salient points of the case, so
that the importance and bearing of the testimony may be readily seen by
the jury.
Evidence.--The evidence [Footnote: The most important Rules of Evidence
are given in chapter VII.] for the plaintiff is then introduced. Each
witness, after being duly sworn, gives his testimony by answering the
questions of counsel. After the direct examination by the plaintiff's
attorney, the witness may be cross-examined by the attorney for the
defendant. When the evidence for the plaintiff is all in, the defendant's
attorney makes his opening statement, and then the witnesses for the
defense are examined. The direct examination is now, of course, conducted
by the counsel for the defendant, and the cross-examination by opposing
counsel. When all the evidence for the defense has been introduced, the
plaintiff may offer evidence in "rebuttal," that is, to contradict or
disprove new matter adduced by the defense. And the defendant may then
introduce evidence to refute matter first brought out by the rebuttal.
Argument.--The case is now ready for "argument." One attorney on each side
addresses the jury. Each tries to show that the evidence adduced has
proved the facts alleged in his pleadings, and each asks for a decision in
favor of his client. Usually the side upon which rests the burden of proof
has the closing argument.
Counsel must confine themselves to the law, the admitted facts and the
evidence.
Verdict.--The jury then retire in care of an officer to a room set apart
for their use. Here they deliberate in secret. If after a reasonable time
they cannot agree, they are discharged, and the case stands as if no trial
had taken place. But if they agree they return to the court room and
render their verdict. This is given by the foreman, and is assented to by
the rest.
Judgment.--After the verdict, the justice enters judgment in accordance
therewith. Judgment may include certain sums of money allowed to the
successful party in part compensation of his expenses. Such allowances and
certain court expenses are called "the costs."
AFTER THE TRIAL.
Appeal.--If the defeated party feels that he has not been justly dealt
with, he may ask for a new trial. If this be refused he may appeal his
case to a higher court. He must make affidavit that the appeal is not
taken for the purpose of delay, and must give bonds to cover the judgment
and the costs of appeal. The higher court affirms or reverses the
judgment, in the latter case granting a new trial.
Sometimes the case is tried anew in the higher court, just as if there had
been no trial in the justice court.
Execution.--If no appeal is taken the defeated party may "satisfy" the
judgment, that is, pay to the justice the sum specified therein. If at the
expiration of the time allowed for appeal the judgment remains
unsatisfied, the justice may issue an execution [Footnote: For forms, see
Appendix, pp. 282-3.] against the property of the debtor.
II. IN CRIMINAL ACTIONS.
_Jurisdiction._
Justices of the peace have jurisdiction throughout their respective
counties, as follows:
1. _To try_ charges where the punishment prescribed by law does not exceed
a fine of one hundred dollars or imprisonment for three months. [Footnote:
The extent of this jurisdiction varies somewhat in different states.]
2. _To examine_ persons charged with crimes greater than those specified
above, and to dismiss them or hold them for trial in a court having
jurisdiction, as the facts seem to warrant.
3. _To prevent_ crimes, by requiring reckless persons to give security to
keep the peace.
PROCEEDINGS IN CRIMINAL TRIAL.
Preliminary.
Complaint.--If a crime has been committed, the sufferer, or any one else,
may appear before the justice of the peace and make complaint, under oath,
specifying the nature of the crime, the time of its commission, and the
name of the person believed to have perpetrated it, and requesting that he
be apprehended for trial.
Warrant.--If upon careful examination of the complainant and any witnesses
whom he may bring, it appears that the offense has probably been
committed, the justice issues a warrant, reciting the substance of the
complaint, and commanding an officer to arrest the accused and produce him
for trial.
Return.--The officer arrests the accused, brings him before the justice,
and makes a return of the warrant. The return is a statement on the back
of the warrant telling how its commands have been executed. (See p. 283)
Bail.--The accused is entitled to a speedy trial. But if for good cause it
seems best to postpone it, the accused may be released from custody upon
giving sufficient bail for his appearance at the time fixed for trial. If
he cannot furnish bail, he is committed to jail or left in charge of the
officer.
Subpoena.--One good reason for postponing a trial is to enable the parties
to secure witnesses. To this end, the justice issues subpoenas. But in
this case the witnesses must come without the tender of the fee.
_The Trial._
Arraignment.--The first step in the trial proper is to inform the
defendant of the nature of the crime with which he is charged. The
accusation, as stated in the warrant, is distinctly read to him by the
justice, and he is required to plead thereto. If he pleads guilty,
conviction and sentence may follow at once. If he pleads not guilty, the
trial proceeds.
Trial.--After the joining of issue, and before the court proceeds to the
examination of the merits of the case, a jury is impaneled as in a civil
action. A jury may be waived by the defendant. Then follow the taking of
the testimony, the arguments of counsel, the consideration and verdict by
the jury. The defendant is then discharged if not guilty, or sentenced if
found guilty. The penalty depends, of course, upon the nature of the
offense.
PROCEEDINGS IN EXAMINATION.
Need of Examination.--Over crimes punishable by fine greater than $100 or
imprisonment for more than three months, a justice of the peace usually
has no jurisdiction of trial. The action must be tried in the district
court, on the indictment of a grand jury. But in the meantime the
perpetrator of a crime might escape. To prevent this, the accused may be
arrested and examined by a justice of the peace, to ascertain whether or
not there are sufficient grounds for holding him for trial.
Proceedings.--The preliminary proceedings are precisely like those in case
of a trial. Upon complaint duly made a warrant is issued, and the accused
is arrested and brought before the justice. In the presence of the
accused, the magistrate examines the complainant and witnesses in support
of the prosecution, upon oath, "in relation to any matter connected with
such charge which may be deemed pertinent."
Rights of Accused.--The accused has a right to have witnesses in his
behalf, and to have the aid of counsel, who may cross-examine the
witnesses for the prosecution.
The Result.--If it appears upon examination that the accused is innocent
of the crime, he is discharged. If his guilt seems probable, he is held to
await the action of the grand jury. In the case of some offenses bail may
be accepted. But if no suitable bail is offered, or if the offense is not
bailable, the accused is committed to jail. Material witnesses for the
prosecution may be required to give bonds for their appearance at the
trial, or in default thereof may be committed to jail.
Reports.--The justice makes a report of the proceedings in the
examination, and files it with the clerk of the court before which the
accused is bound to appear for trial.
PROCEEDINGS FOR PREVENTING CRIME.
Prefatory.--But it is better to prevent crime than to punish it. Indeed,
one reason for punishing wrongdoers is that the fear of punishment may
deter people from committing crime.
Proceedings.--As a conservator of the public peace, then, a justice may
require persons to give bonds for good behavior. The preliminary
proceedings are similar to those in the case of a trial--the complaint,
warrant and return. But the complainant simply alleges upon oath, that a
crime against his person or property has been threatened. The examination
is conducted as in case of a criminal offense.
Result.--If upon examination there appears reason to fear that the crime
will be committed by the party complained of, he shall be required to
enter into recognizance to keep the peace, failing in which he shall be
committed to jail for the time to be covered by the surety, said time not
to exceed six months.
REMARKS ON CRIMINAL TRIALS.
The care for the rights of the accused is based upon the principle in our
law, that every man shall be held innocent till _proved_ guilty. Another
principle is that a person accused of crime _cannot be tried in his
absence._ The purpose of arresting him is to secure his _presence_ at the
trial. If he can guarantee this by bail he is set at liberty, otherwise he
is confined in jail. (See p. 231.)
_Pertinent Questions._
Are the justices and constables town, county or state officers? How is it
known at the county seat who the justices and constables in each town are?
Define docket, summons, warrant, pleading, subpoena, crime, felony,
misdemeanor, venire, costs, execution, recognizance. Why are there two
justices in each town? What is meant by "change of venue?" How is an oath
administered in court? What persons may not serve as witnesses? If a
criminal should make confession of the crime to his lawyer, could the
lawyer be subpoenaed as a witness on the trial? Name some things "exempt
from execution" in this state. What is to hinder a bitter enemy of yours,
if you have one, from having you committed to prison. Can a _civil_ suit
proceed in the absence of the defendant?
_Practical Work._
Assume that John Smith bought from Reuben White a cow, the price agreed
upon being $30; that Smith refuses to pay, and White sues him. Write up
all the papers in the case, make proper entries in the docket, assessing
costs, etc.
CHAPTER IV.
THE INCORPORATED VILLAGE.
Need of.--Owing to conditions, natural and artificial, favorable to
business enterprises, people group together in certain places. Living in a
limited area, the amount of land occupied by each family is small, and the
territory is surveyed into lots and blocks. To make each homestead
accessible, streets are laid out. The distances traveled being short,
people go about principally on foot; hence the need of sidewalks. To
reduce the danger of going about after dark, street-lamps are needed. The
nearness of the houses to each other renders it necessary to take special
precautions for the prevention of fires, and for their extinguishment in
case they break out.
But to provide and maintain all these things takes money, and the people
living in the other parts of the town not sharing the benefits would
hardly like to help pay for them. Hence it is but just that the people
living in the thickly settled portion of the town should be permitted to
separate from the rest and form an organization by themselves.
Again, the circumstances being different, the regulations must be
different in this part of the town. For instance, in the country a man may
drive as fast as he pleases, while here fast driving endangers life and
must be prohibited. In the country sleigh-bells are not needed, while here
they must be used to warn people of the approach of teams. In the country,
if a man's house takes fire no other person's property is endangered; but
here the danger is such that all the people are interested in each man's
house, and the community may require that chimneys be properly constructed
and ashes safely disposed of.
How Incorporated.--Villages are, with rare exceptions, incorporated under
a general law specifying the number of inhabitants, the mode of voting on
incorporation, etc.
The method in Minnesota, which may be taken as typical, is as follows:
Upon petition of thirty or more voters resident upon the lands to be
incorporated, which lands have been divided into lots and blocks, the
county commissioners appoint a time, and give due notice thereof, when the
voters "actually residing within the territory described," may vote upon
the question. If a majority of those voting favor incorporation, the
commissioners file with the register of deeds the original petition, a
true copy of the notice of election, and the certificate showing the
result of the vote. The village thus becomes incorporated, and has the
usual corporate powers. It organizes by electing officers.
Elective Officers.--The usual elective officers of a village are a
president, three trustees, a treasurer, and a recorder, who are chosen for
one year, and two justices of the peace and a constable, elected for two
years. [Footnote: The difference in term is accounted for by the fact that
the justices and constables are in a measure county officers.]
The Council and Its Powers.--The president, the three trustees, and the
recorder constitute the village council. They may make, for the following
purposes among others, such ordinances or by-laws as they deem necessary:
1. To establish and regulate a fire department; to purchase apparatus for
extinguishing fires; to construct water-works; to designate limits within
which wooden buildings shall not be erected; to regulate the manner of
building and cleaning chimneys, and of disposing of ashes; and generally
to enact such necessary measures for the prevention or extinguishment of
fires as may be proper.
2. To lay out streets, alleys, parks, and other public grounds; to grade,
improve, or discontinue them; to make, repair, improve, or discontinue
sidewalks, and to prevent their being encumbered with merchandise, snow or
other obstructions; to regulate driving on the streets; to appoint a
street commissioner.
3. To erect lamp-posts and lamps, and provide for the care and lighting of
the lamps.
4. To appoint a board of health, with due powers; to provide public
hospitals; to regulate slaughter-houses; to define, prevent, and abate
nuisances.
5. To establish and maintain a public library and reading-room.
6. To prohibit gambling; to prevent, or license and regulate the sale of
liquor, the keeping of billiard-tables, and the exhibition of circuses and
shows of all kinds; to appoint policemen, and provide a place of
confinement for offenders against the ordinances.
7. In general, "to ordain and establish all such ordinances and by-laws
for the government and good order of the village, the suppression of vice
and immorality, the prevention of crime, the protection of public and
private property, the benefit of trade and commerce, and the promotion of
health, not inconsistent with the constitution and laws of the United
States or of this state, as they shall deem expedient," and to provide
penalties for the violation of the ordinances.
All fines and penalties imposed belong to the village.
Appointive Officers.--The council appoints, as provided by law, a village
attorney, a poundmaster, one or more keepers of cemeteries, one or more
fire-wardens, and regular and special policemen; and it prescribes the
duties and fixes the compensation of these officers. The council also
elects at its first meeting, a village assessor, who shall hold his office
one year.
Vacancies and Removals.--Vacancies in any of the village offices are
filled by the council, and it has power to remove any officer elected or
appointed by it whenever it seems that the public welfare will be promoted
thereby.
Like Town Officers.--The assessor, treasurer, justices of the peace, and
constable, have the same duties and responsibilities as the corresponding
officers in the town. The village has a seal, of which the recorder is the
custodian; and he is, as has been said, a member of the council. Otherwise
the duties of the recorder are similar to those of the town clerk.
Elections.--A village usually constitutes one election district and one
road district. Village elections are conducted as are those in a town.
Enlargements.--Lands adjoining the village may be annexed to it, at the
wish and with the consent of the voters of the territory and of the
village. The will of the voters aforesaid is expressed at an election
called, after due notice, by the county commissioners.
_Some Pertinent Questions._
Name the incorporated villages in your county. Any others that you know.
Name some villages, so-called, which are not incorporated. Why are the
petition and other papers of incorporation recorded?
Can a person living in a village build a sidewalk to suit his own fancy?
Why? Suppose that owing to a defective sidewalk you should break your leg,
what responsibility would lie on the village?
How would you get your pay if you had a bill against a village?
The village council has power "to establish and regulate markets." Why
should the sale of meats be regulated any more than the sale of flour or
of clothing? May the sale of bread be regulated?
What is the difference between a policeman and a constable.
Compare the village and the town, telling wherein they are alike and
wherein they are different.
_Debate_.
Resolved, That for a village of 1000 inhabitants or less it is wise not to
become incorporated.
CHAPTER V.
THE CITY.
Need Of.--A village being one election district has only one polling
place. The community may increase so in numbers as to make it necessary to
have several voting places. For the accommodation of the people, these
would naturally be located in different parts of the community; and to
prevent fraud, voting precincts would have to be carefully defined. The
council would naturally be made up of representatives from these
divisions.
When, under this arrangement, the voters assemble in different parts of
the community, they could not listen to financial reports and vote taxes,
as they do in the town and the village. Hence it would be necessary to
endow the council with increased powers, including the power to levy taxes
without the direct authorization of the people.
The expenses for public improvements, for waterworks, sewers,
street-lighting, etc., may take more money than it would be prudent to
assess upon the community for immediate payment. In this case it would be
desirable for the community to have the power to issue bonds.
Again, with increase in population there is an increase in the number of
disputes over private rights, and temptations to crime become more
numerous. Hence the need of one or more courts having jurisdiction greater
than that possessed by justices of the peace. The conditions necessitate
also an increase in the number and the efficiency of the police. And to
render the police efficient it is necessary that they be under the
direction of one man, the same one who is responsible for the carrying out
of the ordinances of the council, namely, the mayor.
A community organized to comply with the foregoing requirements--divided
into wards, having a council made up of aldermen from those wards, having
a council authorized to levy taxes at its discretion, having a municipal
court, having regularly employed police acting under the direction of the
mayor--is a city, as the term is generally used in the United States.
Another reason for establishing a city government is frequently potent,
although unmentioned. The pride of the community can be thereby indulged,
and more citizens can have their ambition to hold public office gratified.
How Organized.--A city may be organized under general law or special
charter from the legislature. Large cities, and small ones with _great
expectations_, usually work under a charter. But the custom is growing of
organizing cities at first under general law. Then if a city outgrows the
general law, grows so that it needs powers and privileges not granted
therein, it may properly ask the legislature for a special charter.
As a type, the principal provisions of the general law of Minnesota are
here given, as follows:
"Whenever the legal voters residing within the limits of a territory
comprising not less than two thousand inhabitants, and not more than
fifteen thousand, and which territory they wish to have incorporated as a
city, shall sign and have presented to the judge of probate of the county
in which such territory is situated, a petition setting forth the metes
and bounds of said city, and of the several wards thereof, and praying
that said city shall be incorporated under such name as may therein be
designated, the judge of probate shall issue an order declaring such
territory duly incorporated as a city, and shall designate the metes,
bounds, wards, and name thereof, as in said petition described." And the
judge of probate designates the time and places of holding the first
election, giving due notice thereof. He also appoints three persons in
each ward, of which there shall be not less than two nor more than five,
to act as judges of election. The corporation is established upon the
presentation of the petition, and the organization is completed by the
election of officers.
The usual elective officers of a city are a mayor, a treasurer, a
recorder, one justice of the peace for each ward, styled "city justice,"
all of whom shall be qualified voters of the city, and one or more
aldermen for each ward, who shall be "qualified voters therein." All other
city officers are appointed.
The term of mayor, city justices and aldermen is in most states two years;
that of the other officers, one year.
Any officer of the city may be removed from office by vote of two-thirds
of the whole number of aldermen. But an elective officer must be given "an
opportunity to be heard in his own defense."
A vacancy in the office of mayor or alderman is filled by a new election.
A vacancy in any other office is filled by appointment. The person elected
or appointed serves for the unexpired term.
The Mayor is the chief executive officer and head of the police of the
city. By and with the consent of the council, he appoints a chief of
police and other police officers and watchmen. In case of disturbance he
may appoint as many special constables as he may think necessary, and he
may discharge them whenever he thinks their services no longer needed.
The City Council consists of the aldermen. [Footnote: In some states the
city council consists of two bodies.] It is the judge of the election of
its own members. A majority of the members elected constitutes a quorum
for the transaction of business.
The council chooses its own president and vice-president. In case the
mayor is absent from the city or for any reason is temporarily unable to
act, the president of the council acts as mayor, with the title Acting
Mayor.
Passing Ordinances.--The mode of passing an ordinance is unlike anything
that we have considered up to this time, and deserves special attention on
account of its resemblance to the mode of making laws in the state and
general governments. It is as follows. If a proposed ordinance is voted
for by a majority of the members of the council present at any meeting, it
is presented to the mayor. If he approves it, he signs it, and it becomes
an ordinance. But if he does not approve it, he returns it, through the
recorder, to the council, together with his objections. [Footnote: This is
called _vetoing_ it, from a Latin word _veto_, meaning _I forbid_.]The
council, then reconsiders the proposed ordinance in the light of the
mayor's objections. If, after such reconsideration, two-thirds of the
members elected vote for it, it becomes an ordinance, just as if approved
by the mayor. "If an ordinance or resolution shall not be returned by the
mayor within five days, Sundays excepted, after it shall have been
presented to him," it shall have the same effect as if approved by him.
Publication of Ordinances.--The ordinances and by-laws of the council are
published in a newspaper of the city, selected by the council as the
official means of publication, and are posted in three conspicuous places
in each ward for two weeks, before they become operative.
Council Powers.--The city council has about the same powers as a village
council in regard to streets, the prevention and extinguishment of fires,
etc.--the same in kind but somewhat more extensive. But it can also levy
taxes for public purposes, as has before been said. It usually elects the
assessor, the city attorney, the street commissioner, and a city surveyor,
and in some states other officers.
The recorder, treasurer, assessor, justices of the peace, and police
constables, have duties similar to those of the corresponding officers in
a village or a town.
_Some Pertinent Questions_.
If two persons should claim the same seat in the city council, who would
decide the matter?
State three ways in which a proposed ordinance may become an ordinance.
Two ways in which it may fail. How can persons living in a city find out
what ordinances the council passes? How far are the ordinances of any city
operative?
Compare the government of a village with that of a city.
Are school affairs managed by the city council? How is it in a village? In
a town.
If a new school-house is needed in a city, and there is not money enough
in the treasury to build it, what can be done?
If you live in a city having a special charter, borrow a copy of it from a
lawyer or from the city recorder, and find out what powers and privileges
are granted to the corporation not specified in the general law; what
limitations are imposed; and, if a municipal court is provided for, what
its jurisdiction is in civil actions and in criminal prosecutions.
Name the principal officers in your city. The aldermen from your ward.
What are some of the dangers of city government? Consult Macy's Our
Government, pp. 51-53, and Nordhoff's Politics for Young Americans.
_Questions for Debate._
Resolved, That for a community of 5000 inhabitants or less a village
organization is better than a city organization.
CHAPTER VI.
THE COUNTY.
Need Of.--A county organization is needed for the following reasons:
1. _To establish the lower organizations_. As we have seen, the
organizations within the county are established by county officers. But,
it may properly be asked, why not have them organized by the state
directly? There are at least three good reasons: In the first place, it
would be too burdensome to the state; that is, the state would act through
the legislature, and to organize all the individual school districts,
towns, villages, and cities, would take up too much of the time of the
legislature. In the second place, the organizing could only be done at
certain times, namely during the session of the legislature, and in the
meantime communities would have to wait. In the third place, the records
of incorporation would be inaccessible in case they were needed for
reference.
2. _To serve as a medium between the state and the lower organizations._
The state uses the town, village, and city to value property for purposes
of taxation and as election districts. But it gets its taxes and its
election returns through the county. Here again may arise the question,
why not send the state taxes directly to the capital and make election
returns directly also? At least two good reasons appear: It would increase
the work and therefore the number of officials at the capital, and if a
mistake should be made it could not be so easily discovered and corrected.
3. _To carry on public works beyond the power of the towns individually._
A desired local improvement may be beyond the power of a town either
because it is outside of the jurisdiction of the town or because of its
expense. Thus, a road may be needed between two centers of population,
villages or cities, which would run through several towns, while the
jurisdiction of the towns individually extends only to their own borders.
Or a bridge over a wide stream may be needed, which would be too expensive
for the town in which it is located. The road and the bridge would better
be provided by the county.[Footnote: Sometimes state aid is secured. Do
you think it wise, as a rule, for the state to grant such aid?] And the
poor can generally be better cared for by the county than by the
individual towns, for the county can erect and maintain a poor-house.
4. _To secure certain local officers not needed in every town;_ for
instance, a register of deeds, the coroner, the judge of probate, the
superintendent of schools (in most states), and the surveyor.
5. _To serve as a territorial basis for the apportionment of members of
the legislature._ This is, perhaps, merely an incidental gain. But its
convenience in defining legislative districts is obvious.
6. _To make justice cheap and accessible._ It is well in many ways, as we
have seen, to have in every town, village, and city, courts of limited
jurisdiction. But to _establish justice_ in any generous or satisfying
sense there should be within the reach of every citizen a court competent
to try _any_ difference between individuals regardless of the amount in
controversy, and able to punish any crime against the laws of the state.
To bring such a court within the reach of every one was the original
reason for the establishment of the county, and remains today the greatest
advantage derived from its existence.
Establishment.--Counties are established by the state legislature.
In thinly settled parts of a state the counties are much larger than in
the populous parts. A county should be large enough to make its
administration economical, and yet small enough to bring its seat of
justice within easy reach of every one within its boundaries. In the ideal
county a person living in any part thereof can go to the county seat by
team, have several hours for business, and return home the same day.
County Board.--The administration of county affairs is in the hands of the
county commissioners or supervisors. This board is usually constructed on
one of two plans: Either it consists of three or five members, the county
being divided into commissioner districts; or else it is constituted of
the chairmen or other member of each of the several town boards. The
former plan prevails in Minnesota, Iowa, and other states; the latter in
Wisconsin, Michigan, most of Illinois, and in other states.
The commissioners have charge of county roads and bridges, county
buildings and other county property, and the care of the county poor.
Through the commissioners the county exercises the usual corporate powers.
Recording Officer.--The recording officer of the county is called in some
states the county auditor, in others the recorder, and in others the
county clerk. As we would expect, he is secretary of the board of
commissioners and the custodian of county papers; and all orders upon the
treasurer are issued by him. The auditor is also bookkeeper for the
county, that is, he keeps an account of the money received and paid out by
the county treasurer.
In Minnesota and some other states, he computes all the taxes for the
county, [Footnote: In some states, among them Wisconsin, this computation
is performed by the several town clerks, and the moneys are collected by
the town treasurers.] and makes the tax-lists, showing in books provided
for the purpose just how much the tax is on each piece of real estate and
on personal property. These books he turns over to the county treasurer to
be used in collecting the taxes.
Treasurer.--The county treasurer is, in some states, one of the most
important officers. He is the great financial agent, collecting all the
taxes paid by the people for school, town, village, city, county and state
purposes, except assessments for city sidewalks and street grading. Great
care must, therefore, be taken to guard the public money. The precautions
serve as a check upon weak or dishonest officials, while right-minded ones
welcome them as keeping their good name above suspicion. As a type, the
precautions taken in Minnesota are given, to-wit:
1. The selection of an honest man for the office, so far as possible, is a
prime consideration.
2. The treasurer must give a bond for such amount as the county
commissioners direct.
3. He shall pay out money only upon the order of proper authority.
[Footnote: Moneys belonging to school district, town, village, or city,
are paid on the warrant of the county auditor; county money, on the order
of the county commissioners, signed by the chairman and attested by the
county auditor; state money, on the draft of the state auditor in favor of
the state treasurer.] This order signed by the payee is the treasurer's
receipt or voucher.
4. He shall keep his books so as to show the amount received and paid on
account of separate and distinct funds or appropriations, which he shall
exhibit in separate accounts.
5. The books must be balanced at the close of each day.
6. When any money is paid to the county treasurer, excepting that paid on
taxes charged on duplicate, the treasurer shall give, to the person paying
the same, duplicate receipts therefor, one of which such persons shall
forthwith deposit with the county auditor, in order that the county
treasurer may be charged with the amount thereof.
7. The county auditor, the chairman of the board of county commissioners,
and the clerk of the district court, acting as an auditing board,
carefully examine at least three times a year the accounts, books and
vouchers of the county treasurer, and count the money in the treasury.
8. The state examiner makes a similar examination at least once a year. No
notice is given in either case.
9. As security against robbers, the money in the possession of the county
treasurer must be deposited on or before the first of every month in one
or more banks. The banks are designated by the auditing board, and must
give bonds for twice the amount to be deposited.
Register of Deeds.--Without hope of reward no one would work. To encourage
frugality, people must be reasonably secure in the possession of their
savings. One of the things for which a person strives is a home.
Therefore, great care is taken to render a person who has bought a home,
or other landed property, secure in its possession. Among the means
employed are these: 1. The purchaser is given a written title to the land.
This is called a _deed_. 2. In order that any person may find out who owns
the land, thus preventing a person reputed to own it from selling it, or
the owner from selling to several persons, a _copy_ of the deed is made by
a competent and responsible public officer in a book which is kept for
that purpose and which is open to public inspection. This is called
_registering_ the deed, and the officer is called the register of deeds.
[Footnote: Incidentally this officer records other instruments, such as
official bonds, official oaths, etc.] The register may have assistants, if
necessary, he being responsible for their work.
Judge of Probate.--But not only should a person enjoy the fruit of his
labors while living, he should also be able to feel that at his death his
property shall descend to his family or others whom he loves. Many persons
before they die make a written statement, telling how they wish their
property disposed of. This written statement is called a will or
testament. Some who are possessed of property die without making a will.
They are said to die _intestate_. To see that the provisions of wills, if
any be made, are complied with, and, in case no will is made, to make sure
that the property comes into possession of those best entitled to it, is
the important and wellnigh sacred duty of an officer called the judge of
probate. If no one is named in the will to look after the education and
property of minor heirs, the judge of probate may appoint a guardian. The
appointee must give bonds for the faithful discharge of his duty.
[Footnote: see chapter VII.] Incidentally it is made the duty of the judge
of probate to appoint guardians for any persons needing them, such as
insane persons, spendthrifts, and the like. He seems to be the friend of
the weak.
County Surveyor.--To survey all public improvements for the county, such
as roads, lands for public buildings, &c., there is an officer called the
county surveyor. He is required to preserve his "field notes" in county
books furnished for the purpose. Individuals frequently call upon him to
settle disputes about boundary lines between their estates.
Superintendent of Schools.--Not every one is competent to teach, and to
protect the children as far as possible from having their time worse than
wasted by incompetent would-be teachers, is the very responsible duty of
the county superintendent of schools. From among those who present
themselves as candidates he selects by a careful examination those whom he
deems most competent, and gives to each a certificate of qualification. He
visits the schools and counsels with the teachers regarding methods of
instruction and management. It is his duty also to hold teacher's
meetings. He reports annually to the state superintendent of public
instruction such facts as the superintendent calls for.
County Attorney.--Like railroads and other corporations, the county keeps
a regularly employed attorney to act for it in all suits at law. This
officer is called the county attorney. He represents the state in all
criminal prosecutions and is for this reason sometimes called the state's
attorney.
Sheriff.--An ancient officer of the county is the sheriff. He has three
principal lines of duty: 1. To preserve the peace within the county. 2. To
attend court. 3. To serve processes. He pursues criminals and commits them
to jail. He has charge of the county jail and is responsible for the
custody of the prisoners confined in it. He opens and closes each session
of the district court, and during the term has charge of the witnesses,
the juries, and the prisoners. It is his duty to carry into execution the
sentence of the court. He serves writs and processes not only for the
district court, but also for justices of the peace and court
commissioners.
Coroner.--Another officer of the county, ancient almost as the sheriff, is
the coroner. If the dead body of a human being is found under
circumstances which warrant the suspicion that the deceased came to his
death by violence, it is the coroner's duty to investigate the matter and
ascertain if possible the cause of the death. He is aided by a jury
summoned by him for the purpose.
At a time in early English history when the only county officers were the
sheriff and the coroner, the coroner acted as sheriff when the latter was
for any reason incapacitated. And the practice still continues. Thus, if
there is a vacancy in the office of sheriff, the coroner acts till a new
sheriff is chosen. And in most states the coroner is the only officer who
can serve process upon the sheriff or who can arrest him.
Clerk of the Court.--The district court [Footnote: See next chapter.] is a
"court of record." That is, it has a seal and a special officer to record
its proceedings. He is called the clerk of the court. He of course also
files and preserves the papers in each case. He has also certain
incidental duties.
Court Commissioner.--Court is not always in session, and there are certain
powers possessed by a judge "in chambers," that is, which the judge may
exercise out of court. For instance, he may grant a writ of attachment or
of _habeas corpus_. Where a judicial district comprises several counties,
as is usually the case, a provision is made in some states for an officer
in each county authorized to perform such duties in the absence of the
judge. In Minnesota and most other states he is called the court
commissioner.
Election and Term.--The county officers are in most sections of the
country elected by the people of the county. The term is usually two
years.
Removals and Vacancies.--Provision is made for the removal of any county
officer for non-feasance or malfeasance in office. The power to remove is
generally vested in the governor. The accused must be given an opportunity
to be "heard in his own defense." Vacancies are generally filled by the
county commissioners. They appoint some one, not one of themselves, to
serve until the next election.
Qualifying.--Each officer before assuming the duties of his office takes
the official oath. All of the officers except the commissioners and the
superintendent of schools are required to give bonds. Copies of these
bonds are preserved by the register of deeds, and the originals are
forwarded to the secretary of state.
Compensation.--Compensation is usually by salary or by fees. The matter is
usually in the hands of the county commissioners, except so far as
concerns their own compensation, which is fixed by law. This is usually a
_per diem_.
Eligibility.--Any voter who has resided in the county a certain time
(usually about thirty days) is eligible to any county office, except that
of attorney or court commissioner. The former must be a person admitted to
practice in all the courts of the state. The latter must be a man "learned
in the law."
In some cases a person may hold two offices at the same time; thus, a
person may be court commissioner and judge of probate. But no person can
hold two offices one of which is meant to be a check upon the other. For
instance, no one could be auditor and treasurer at the same time. In some
states there is a bar against holding certain offices for two terms in
succession.
_Some Pertinent Questions._
What is the difference between a town road and a county road? Point out
one of each kind. If you wanted a change in a county road, to whom would
you apply?
Get a warranty deed and fill it out for a supposed sale. Compare with it a
mortgage deed. A quitclaim deed. Compare a mortgage deed with a chattel
mortgage. Account for the differences. If A buys a farm from B and does
not file his deed, who owns the farm?
If a man possessing some property should get into habits of gambling and
debauchery, squandering his money and not providing for his family, what
could be done? On what grounds could this interference by a public officer
be justified?
Who would be keeper of the jail if the sheriff should be a prisoner? Why
not one of the deputy sheriffs?
Study out carefully the derivation of the words auditor, sheriff, coroner,
probate, commissioner, supervisor, superintendent.
The county attorney is usually paid a salary while the register of deeds
usually gets the fees of his office. What seems to govern in the matter?
Name the salaried officers in this county. The officers who are paid fees.
To whom are school taxes paid? Town taxes? County taxes? State taxes? How
much of the money paid at this time goes to the United States?
How does the tax collector know how much to take from each person? From
whom does he get this book?
The amount of a person's tax depends upon the _value_ of his property and
the rate of tax. How is the former fact ascertained? To whom, then, does
the assessor report when he has concluded his labors?
The rate of tax depends upon the amount to be raised and the value of the
property on which it is to be assessed. Who determines how much money
shall be raised in a district for school purposes during any year? When is
this determined? Who records the proceedings of the meeting? To whom must
he report the amount of tax voted? Who determines how much money is to be
raised in the town for bridges, etc.? When? Who records the proceedings of
the meeting? To whom must he report the amount of tax voted? Who vote the
taxes in a village? When? Who reports to the computing officer? Who vote
the taxes in a city? Why not the people? When? How reported to the
computing officer? Who determines how much money is to be raised for
county purposes? When? Who is secretary of the meeting? To whom does he
report? Who determines how much money shall be raised for state purposes?
How does the proper officer become acquainted with the facts necessary to
the raising of the money?
State the gist of the matter brought out by the questions in the last four
paragraphs.
How does the school district treasurer get the school district money?
Trace a dollar from the time it leaves a farmer's hand as taxes till it
reaches the teacher as salary.
If you had a bill against the county how would you get your pay? What
could you do if pay were refused? Make out in due form a bill against your
county.
CHAPTER VII.
ESTABLISHING JUSTICE IN THE COUNTY.
Classes of Cases.--There are three general classes of judicial business
carried on in the county: probate business, civil actions, and criminal
prosecutions.
PROBATE COURTS.
Jurisdiction.--The principal business and characteristic work of probate
courts is the settlement of the estates of deceased persons. Jurisdiction
extends in most states over both personal property and real estate.
Incidentally probate courts appoint guardians for minors and others
subject to guardianship, and control the conduct and settle the accounts
of such appointees.
In many states jurisdiction wholly extraneous to the characteristic work
of these courts is imposed upon them, or the probate business is
associated with other jurisdiction in the same court. Thus, in Minnesota
the judge of probate is petitioned in the organization of cities, as we
have seen. In Wisconsin, the county court, which has charge of the probate
business, has civil jurisdiction also. In Illinois, the county court in
addition to the probate business has jurisdiction "in proceedings for the
collection of taxes and assessments." And in Kansas, the probate court has
jurisdiction in cases of _habeas corpus_.
Procedure in case a Will has been made.--The proceedings of a probate
court have in view two chief objects, namely, to pay the debts of the
deceased and to distribute the remainder of his property among those
entitled to it. In case the deceased has left a will, the proceedings are
as follows:
1. _Petition for probate._ Within a short time, usually thirty days, after
the death of the testator, the executor or other custodian of the will
presents it to the probate court with a petition that it be admitted to
probate. (For form of petition, see p. 286.)
2. _Citation to persons interested._ Acting on the petition, the probate
judge publishes in a newspaper a notice to all persons interested in the
estate that at a specified time, action will be taken on the petition. To
afford all who are interested an opportunity to be present at the
"hearing," the notice must be published for a prescribed time, and in some
states each of the heirs must, if possible, be personally notified.
3. _Hearing the proofs._ At the time specified in the notice, unless
postponement be granted for cause, the proofs of the validity of the will
are presented. It must be shown that the testator is dead, that the
instrument was executed by him voluntarily, in the manner prescribed by
statute, and while he was of "sound mind and disposing memory." Usually it
will be sufficient for the two witnesses to the instrument to appear and
testify to the material facts. If any one interested in the distribution
of the property thinks that this will should not be accepted as the "last
will and testament" of the deceased, he should now enter objections. In
case of a contest, the proceedings are about the same as those in a
justice or circuit court; but there is no jury in the probate court, nor
is there any plea except the petition.
4. _Admission to probate._ If the proofs are satisfactory to the court,
the will is "admitted to probate," that is, it is accepted as true and
valid. Its validity is established by a decree of the court, and a
certificate of the fact is attached to the will. A copy of the will is
made in a book kept for the purpose. The original and all the papers in
the case are filed and preserved by the judge of probate. (See pp. 287 and
288.)
5. _Issuance of letters testamentary_. The genuineness of the will being
established, it is now in order to carry out its provisions. Usually the
testator designates in his will the person or persons whom he wishes to
act as his representative in the settlement of the estate. Such a person
is called an "executor." If no person is so named, the court appoints an
"administrator with the will annexed." In either case the person derives
his authority from the court. Unless excused in the will, the executor or
administrator is required to give bonds proportioned to the amount of the
personal property in the estate, the amount of bond being specified by the
court. The executor is then furnished with a copy of the will and with
"letters testamentary." (The authority granted by the letters may be seen
by reference to the form in the appendix, p. 288.)
6. _Notice to creditors_. It is a principle of law that all just debts
shall be paid out of one's property before any further disposition thereof
can take effect. In order that all persons having claims against the
estate of the deceased may have an opportunity to present their accounts,
a time for such presentation is designated by the court, and due notice
thereof is given, usually by publication in a newspaper.
7. _Inventory of the estate_. In the meantime, the executor makes an
inventory of the property, and appraisers appointed for the purpose "put a
value" thereon, the several items of the inventory being valued
separately.
8. _Auditing claims._ At the time appointed in the notice, the court
passes upon the claims of creditors. Since unscrupulous persons are at
such times tempted to present fraudulent claims, the judge exercises great
care in examining the accounts. To facilitate matters it is required that
accounts be itemized, and that they be verified by oath.
Debts are paid out of the personal property, if there be enough. If not,
the court authorizes the executor to sell real estate to pay the balance.
9. _Settlement of estate and division of property._ The executor having
collected debts due the estate and settled all claims against it, makes
his final statement to the court, and the remaining property is
distributed among the heirs and legatees. To continue and perfect the
chain of title, the division of the real estate is recorded in the office
of the register of deeds.
If there are minor heirs, the court appoints guardians for them.
Procedure in case no Will is made.--If there is no will, the four steps
which have in view the establishment of the validity of the will, are
unnecessary. The initial step in this case is the appointment of an
administrator to do the work which under a will is done by the executor.
In order that an administrator acceptable to the heirs may be appointed,
the following steps are taken:
1. Someone interested in the estate petitions for the appointment of a
certain person as administrator.
2. Notice of hearing is given by publication, citing those interested in
the estate to appear at a certain day if they desire to enter any
objection to the appointment.
3. If at the time specified for the hearing no objection is made, the
person petitioned for is appointed administrator, and "letters of
administration" are issued to him.
Then beginning with the sixth step the proceedings are substantially the
same as in case of a will, except that the basis of distribution in the
ninth is the _law_ instead of the _will_.
"As befits an authority which thus pervades the sanctity of a household,
crosses the threshold and exposes to public view the chamber of mourning,
probate jurisdiction in the United States is exercised with great
simplicity of form as well as decorum." [Footnote: Schouler's Executors
and Administrators.]
_Some Pertinent Questions._
What is a will? [Footnote: See Dole's Talks about Law.] Why must it be in
writing? Must it be in the handwriting of the testator? Why are the
witnesses essential? Is the form of a will essential? Is it necessary that
the witnesses know the contents of the will?
What is the difference between an heir and a legatee? May either be
witness to the will? Why? If the witnesses die before the testator, how
can the will be proved?
What is a codicil? If there be two wills of different dates, which will
stand? What difference does it make whether a person having property makes
a will or not?
Group the proceedings in case of a will into three groups.
A minor may have two guardians, one of its person and the other of its
property? Why? What is to hinder a guardian from abusing his trust?
DISTRICT, CIRCUIT OR SUPERIOR COURTS.
Jurisdiction.--This court has original jurisdiction in all civil and
criminal cases within the district which do not come within the
jurisdiction of the justice courts. It has appellate jurisdiction from
probate and justice courts as provided by law.
Procedure.--The proceedings are substantially the same as in a justice
court except that in criminal cases they are based upon an indictment by
the grand jury, and after the arguments the judge "charges" the jury, that
is, instructs it regarding its duty.
Pleadings.--The pleadings in the district court are somewhat more
elaborate than in a justice court, and a few words in regard to them
further than what has already been given may not be out of place here.
The defendant in making his plea may raise a question as to the
jurisdiction of the court, or he may ask that the case be thrown out of
court on account of some irregularity of the writ upon which it is based.
Since these pleas, if successful, simply delay the trial, because a new
suit may afterwards be brought, they are called _dilatory pleas_.
But he may deny the plaintiff's ground of action by denying the
allegations of the plaintiff and challenging him to trial. This plea is
called the general issue. He may admit the plaintiff's allegations but
plead other facts "to avoid their effect." This is called the plea of
confession and avoidance. These pleas are on the merits of the case, and
are called _pleas in bar_. There are other pleas of this kind.
"Pleas in bar, except the general issue, may give rise to counter pleas"
introduced by the parties alternately.
But the issue may be one of law instead of fact, and the defendant may
enter a _demurrer_, claiming that the matters alleged are not sufficient
in law to sustain the action.
Evidence.--Some of the fundamental principles or rules which govern the
taking of evidence and the weighing of testimony may properly appear here.
These rules are designed to exclude all irrelevant matter and to secure
the best proof that can be had.
1. _Witnesses must be competent_. That is, in general, they must be able
to understand the nature and solemnity of an oath. This will usually
exclude children below a certain age, insane persons and persons drunk at
the time of offering testimony.
2. _Witnesses must testify of their own knowledge_. Usually they are
barred from telling what they simply believe to be the fact or what they
have learned from hearsay.
3. _Evidence must go to prove the material allegations of the pleadings_.
It must be confined to the question at issue. It is to be observed that
the evidence must not only go to prove the matter alleged, but it must be
the _material_ not the superfluous matter. What is material and what
superfluous will depend upon the case. Thus if it is alleged that a suit
of clothes was obtained by the defendant at a certain time, his obtaining
the clothes is the material fact and the time may be superfluous or
immaterial. But if a note is in controversy its date is material as
establishing its identity.
4. _"The evidence must be the best of which the case is susceptible."_
Thus, in case of a written instrument the best evidence is the instrument
itself; the next best, a copy of it; the next, oral statement of its
contents. And a copy will not be accepted if the original can be produced.
5. _The burden of proof lies on the affirmative_. In civil cases the party
affirming is usually the plaintiff. In criminal cases it is the state.
Harmonizing with this principle is the constitutional provision that in
criminal cases the accused shall not be required to give evidence against
himself.
These are the principal rules of evidence, but they have many
applications. Learned volumes have been written elaborating them.
Grand Jury.--A grand jury may be defined as a body of men returned at
stated periods from the citizens of the county, before a court of
competent jurisdiction, chosen by lot, and sworn to inquire of public
offenses committed or triable in the county.
The number of grand jurors was formerly twenty-three. By statute many of
the states have fixed upon a smaller number, Oregon having only seven. A
common number is fifteen. Some states have no grand jury. In some others
the grand jury is summoned only when requested by the court.
The United States constitution and most of the State constitutions declare
that no person shall be held to answer for a criminal offense, except a
minor one, "unless on the presentment or indictment of a grand jury." This
is to save people from the vexation and expense of arrest and trial unless
there is reasonable presumption of their guilt. On the other hand, a grand
jury should aid in bringing to justice persons who indulge in practices
subversive of public peace, but which individuals are disinclined to
prosecute, such as gambling. Incidentally the grand jury examines into the
condition of the county jail and poor-house.
The mode of selecting grand jurors is in general the same in all the
states. The steps are three: first, the careful preparation of a list of
persons in the county qualified to serve; second, the selection, by lot,
from this list of the number of persons needed; third, the summoning of
the persons so chosen. The number of persons in the first list is from two
to three times the number of jurors. The preparation of the list is in
some states entrusted to the county board; in others, to jury
commissioners; in others, to the local boards. The names are reported to
the clerk of the court, who in the presence of witnesses, makes the
selection by lot. The summoning is done by the sheriff.
On the first day of the term, the court appoints one of the jurors
foreman. The jury is then sworn, and, after being charged by the court,
retires to a private room and proceeds to the performance of its duty.
The deliberations of the grand jury are conducted in secret. It may,
however, summon and examine witnesses, [Footnote: Witnesses for the
accused are not usually examined by the grand jury.] and may have the
advice of the court or of the county attorney.
The fact that a crime has been committed within the county may be brought
to the notice of the grand jury by any member thereof or by any other
person. If upon examination there seems to be reason for believing that it
was committed by the person accused, the county attorney is called upon to
frame a formal accusation against him, called an _indictment_, which is
endorsed with the words "a true bill," and sent to the court. Upon the
indictment the person accused is arrested and tried.
If the evidence against the accused is insufficient to warrant indictment,
but yet his innocence is questionable, the grand jury may bring a
_presentment_ against him. This is an informal statement in writing
addressed to the court setting forth the offense and stating that there is
a reasonable probability that a certain person, named, has committed it. A
person arrested on a presentment is examined before a justice of the peace
or other magistrate, as if arrested on a complaint. Neither an indictment
nor a presentment can issue except upon concurrence of the number of grand
jurors specified by statute. Under former practice the jury numbered
twenty-three and the concurrence of twelve was necessary.
The grand jury is bound to investigate the charge against any one held by
a justice "to await the action of the grand jury;" also any charge brought
by a member of the grand jury. And conversely it is the sworn duty of each
member to report any crime known by him to have been committed within the
county. Any outsider may file information or bring charges, but the grand
jury may use its own judgment as to the necessity of investigating them.
Petit Jury.--A petit jury is a body of twelve men impaneled and sworn in a
district court to try and determine by a true and unanimous verdict, any
question or issue of fact, in any civil or criminal action or proceeding,
according to law and the evidence as given them in court.
The mode of selecting petit jurors is in general the same as that pursued
in selecting grand jurors. The "list of persons qualified to serve" is,
however, usually larger. The "selection by lot" is made thus: slips of
paper, each containing one of the names, are folded and deposited in a
box. The box is shaken, and the prescribed number of slips is drawn. The
persons whose names thus appear are summoned as jurors.
When an action is called for trial by jury, the clerk draws from the jury
box the ballots containing the names of the jurors, "until the jury is
completed or the ballots exhausted." If necessary, the sheriff under
direction of the court summons bystanders or others in the county to
complete the jury. Such persons are called _talesmen_.
To secure an impartial jury, each party may object to or "challenge," a
number of the jurors. The challenge may be "peremptory" or "for cause."
The peremptory challenge, as its name implies, is one in which no reason
need be assigned. The number of such challenges must, of course, be
limited. In civil suits it is usually limited to three by each party. In
criminal cases, the state has usually two peremptory challenges and the
defendant five. If the offense is punishable with death or state prison
for life, the state has in Minnesota seven peremptory challenges and the
defendant twenty.
Challenges for cause may be either general or particular. A general
challenge of a proposed juror may be made on the basis of his incompetency
or unworthiness to act in such capacity in _any_ action. A particular
challenge may be based on some bias in this particular case which would
unfit the proposed juror for rendering an impartial verdict.
Habeas Corpus.--Not connected directly with trials but related to the
district court is the writ of _habeas corpus_. This is the most famous
writ in law, and has been styled "the chief bulwark of liberty." It was
designed originally to secure a person from being detained in prison
without due process of law, and it served as a mighty check upon arbitrary
power. Its operation has been extended so as to include any detention
against the will of the person detained. The writ, as will be seen by
reference to the appendix (p. 290), commands the person holding another in
custody to bring him before the judge and show cause for the detention. If
the judge finds that the prisoner is detained for cause he remands him to
custody; if not he orders his discharge.
Concluding Remarks.--This discussion might easily be continued. Volumes
have been written on the administration of justice. But perhaps enough has
been given to show that great care is taken to protect the interests of
the innocent and to do equal and exact justice to all. In view of flippant
remarks sometimes made regarding courts of justice, it is pertinent and
proper to go at least so far into detail. The study of Civil Government
will have been pursued to little purpose if respect for law be not one of
its fruits.
_Some Pertinent Questions_
How many judicial districts in this state? [Footnote: Consult Legislative
Manual.] How many counties in the largest? In the smallest? How many have
more than one judge? Why not let each county constitute a judicial
district?
If some one owed you $40 and refused to pay, in what court could you sue?
If he owed you $250? If the suit involved $1,000,000?
What is the relation of the plea to the action? Can anything be proved
which is not alleged in the plea? Show the purpose of each rule of
pleading. Of each rule of evidence.
What are the differences between a grand jury and a petit jury? Why is
each so named?
If a person accused of crime is examined and held by a justice of the
peace, as stated in a previous chapter, must he be indicted by a grand
jury before he can be tried? Why? May a person's acts be inquired into by
the grand jury without his knowing anything about it? May grand jurors
reveal the proceedings of the jury? Why?
Why is there such a thing as a peremptory challenge of a juror? Why so
many given to a person accused of crime?
Are lawyers officers of the court? What oath does each take on admission
to the bar?
_Questions for Debate_
Resolved, That trial by jury has outlived its usefulness.
Resolved, That capital punishment is not justifiable.
_References_.--Dole's Talks about Law; Lieber's Civil Liberty and Self
Government, 234-6; The Century, November 1882; Atlantic Monthly, July 1881;
North American Review, March 1882 and July 1884.
[Illustration: Papers--Prepare with care the "tabular views" of the town,
village, city and county, as follows]
CHAPTER VIII.
HISTORICAL.
Old England.--Not only our language but also very many of our political
institutions we have inherited from England. But the country now called by
that name is not the real _old_ England. The fatherland of the English
race is the isthmus in the northern part of Germany which we now call
Schleswig. Here dwelt the old Angles or English. To the north of them in
Jutland was the tribe called the Jutes, and to the south of them, in what
we now call Holstein and Friesland, dwelt the Saxons. "How close was the
union of these tribes was shown by their use of a common name, while the
choice of this name points out the tribe which at the moment when we first
meet them, in the fifth century, must have been the most powerful in the
confederacy." [Footnote: Green's History of the English People.] Among
themselves they bore in common the name of Englishmen.
Among the characteristics of those German ancestors of ours are the
following: They were very independent; the free landholder was "the
free-necked man." The ties of kinship were very strong. "Each kinsman was
his kinsman's keeper, bound to protect him from wrong, to hinder him from
wrong-doing, and to suffer with and pay for him if wrong were done."
[Footnote: Green's History of the English People.] They were very much
attached to home. "Land with the German race seems everywhere to have been
the accompaniment of full freedom.... The landless man ceased for all
practical purposes to be free, though he was no man's slave." [Footnote:
Green's History of the English People.] Among themselves they were quite
social. Though tillers of the soil they lived, not isolated, but grouped
together in small villages. This may have been partly for mutual
protection. They were lovers of law and order.
The Township.[Footnote: See American Political Ideas, pp. 31-63.]--The
derivation of the word "township" shows us to whom we are indebted for the
institution itself. The word is derived from the Anglo-Saxon _tun-scipe_.
_Tun_ meant hedge, ditch or defense; and _scipe_, which we have also in
landscape, meant _what may be seen_. Around the village before mentioned
was the _tun_, and beyond were the fields and meadows and woodlands, the
whole forming the tun scipe or township.
To administer justice and to take any other action for the common good,
the freemen gathered in _folk-moot_ around the moot hill or the sacred
tree.
Though the proceedings of these assemblies differed in detail from those
of our town meetings, both contain the great principle of local self
government.
The County.[Footnote: See American Political Ideas, pp. 31-63.]--Although
with us the state is divided into counties and the counties into towns,
the order of formation was originally the other way. The towns are the
oldest institutions in our system. Later, from uniting forces in war came
a union of action among adjoining towns during peace. Thus grew up what
was called the Hundred.
When in the fifth century the English invaded Britain, many of the
chieftains or military leaders rose to kingship over small areas. On the
completion of the conquest these kings struggled among themselves for
leadership, until finally England became united into one kingdom, and the
little kingdoms were reduced to shires ruled by earls. With the growth of
the king's power, that of the underkings or earls grew less. Then other
shires were formed, and this institution became simply an administrative
division. After the Norman conquest the French terms count and county came
into use.
The earnest student will find both pleasure and profit in looking up the
origin and history of the trial by jury, the criminal warrant, the writ of
habeas corpus, bail, common law, the general rules of parliamentary
practice, etc.
Town and County in America.--In New England the most important division of
the state is the town; in the South it is the county.[Footnote: An
excellent discussion of this may be found in "Samuel Adams, the Man of the
Town Meeting," John's Hopkins University Studies in History, Volume II,
Number 4.] In other states the relative importance of the two
organizations depends upon the influence to which the state was most
strongly subjected.
The reason for the difference is found in the character and circumstances
of the early colonists.
In New England, the church was the center of the community. The severity
of the climate and the character of the soil made it impracticable to
cultivate large farms. The colonists had come mainly from the towns of
England. These considerations and the presence of fierce and unfriendly
Indians caused the settlers to group themselves into compact settlements.
Their self assertion prompted them, and their intelligence enabled them,
to take active part in public affairs. Hence the importance of the town in
New England.
In the South, the colonies were planted largely in the interests of the
proprietaries. The leading spirits had been county gentlemen in England
and they naturally favored the county system. The mass of the people were
unaccustomed and indifferent to direct participation in the government.
Again, the warm climate and fertile lands were favorable to large
plantations and a dispersed population; so that the character of the
people and the circumstances under which they lived were alike favorable
to the establishment of the county system pure and simple. To quote the
pithy statement of Professor Macy, "The southern county was a modified
English shire, with the towns left out. Local government in New England
was made up of English towns with the shire left out."
Subsequently counties were formed in New England for judicial purposes,
but the towns retained the greater number of their functions; and in the
south, the counties were afterwards subdivided into election and police
districts, but the administrative power remained with the county.
The Middle States divided the local power between the town and the county.
Migration is chiefly along the parallels of latitude. And people from
habit and instinct organize new governments largely on the plans to which
they are accustomed. Hence we are not surprised to find that in the states
formed south of the line of the Ohio, the county is the principal division;
while in the northwestern states the town is the important factor. Though
in the Northwest the county is more important than in New England, the
influence of the towns in county affairs is generally maintained by the
selection of members of the county board from the several towns.
Illinois is a good example of the truth of the generalizations at the
beginning of the preceding paragraph. The state is very long and reaches
far to the south. The southern part of the state was settled first, and
almost pure county government prevailed. By and by the northern part began
to settle, and it grew in population faster than the southern part. The
town was introduced, and now prevails in all but a few counties.
Can you see the relation of these facts to the generalization? Can you
tell where the people of the two sections of the state came from?
PART II.
THE STATE.