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
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.
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.
PREFACE, TO TEACHERS, TO STUDENTS,
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,
A.—FORMS, B.—TABLES, C.—HOW SOME THINGS ARE DONE, D.—SOME PRINCIPLES OF INTERNATIONAL LAW, E.—DOCUMENTS,
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 resume 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.
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.
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?
GOVERNMENT WITHIN THE STATE.
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?
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.
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.
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.
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.
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.
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.
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.)
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?
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.
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.
Resolved, That for a village of 1000 inhabitants or less it is wise not to become incorporated.
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.
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.
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.
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.