Studies in Civics Part 3

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 a.s.sembled 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 princ.i.p.al elements.

In the first place, we see that _every_ boy in the crowd feels that he has a right to a.s.sist 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 _judges.h.i.+p_ 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 princ.i.p.al elements of the courts of today, the establishment of justice as a public trust, the determination of the facts by means of witnesses and a jury, the application of the law by one or more judges, the right of appeal to a higher court, are not artificial, but in the nature of things. We inherited them from our primitive ancestors, and in that sense they may be said to have been imposed upon us. But their naturalness appears in the fact that boys when left to themselves introduce the same elements into their boy-courts.

CHANGES MADE IN COURSE OF TIME.

In the Jury System.--The jurors were originally, as has been said, persons acquainted with the facts. After the Norman conquest, it came about that the jury consisted of twelve persons disinterested and _unacquainted_ with the facts. Probably the change gradually came about from the difficulty of getting twelve men eligible to the jury who knew of the facts. Persons ineligible to the jury were then invited to give it information, but not to join it in the verdict. The next step, taken about 1400 A.D., was to require these witnesses to give their evidence in open court, subject to examination and cross-examination. The testimony of the witnesses, however, was still merely supplementary. Then in the time of Queen Anne, about 1707 A.D., it was decided that any person who had knowledge of the facts of the case should appear as a _witness_, that the jury should consist of persons unacquainted with the facts, and that the verdict should be rendered in accordance with the evidence. And so it is to this day, both in England and America. [Footnote: The best history of the jury system is probably Forsyth's.]

"It is not true, however, that a man is disqualified from serving on a jury simply because he has heard or read of the case, and has formed and expressed some impression in regard to its merits; if it were, the qualifications for jury service in cases that attract great attention would be ignorance and stupidity. The test, therefore, is not whether the juryman is entirely ignorant of the case, but whether he has formed such an opinion as would be likely to prevent him from impartially weighing the evidence and returning a verdict in accordance therewith." [Footnote: Dole's Talks about Law, p. 59.]

In the Officers.--As has been said, there were in the old Saxon courts no court officers. But quite early the necessity for such officers became manifest. And several of the offices then established have come down to us. Some of them, however, have been so modified in the progress of time as to be hardly recognizable.

CHAPTER III.

PROCEEDINGS IN A JUSTICE COURT.

I. IN ORDINARY CIVIL ACTIONS.

Definitions.--A _Civil Action_ is one having for its object the protection or enforcement of a private right or the securing of compensation for an infraction thereof. For instance a suit brought to secure possession of a horse, or to secure damages for a trespa.s.s 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 const.i.tute 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 ent.i.tled 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 a.s.serted by one party and denied by the other const.i.tute the issue. If the defendant does not make answer on or before the day appointed in the summons and does not appear on that day, judgment may be rendered against him. If the plaintiff fail to appear, he loses the suit and has to pay the costs. For sufficient cause either party may have the suit adjourned or postponed for a short time.

Jury.--On demand of either party a jury must be impaneled. The jury usually consists of twelve persons, but by consent of the parties the number may be less. The jury is impaneled as follows: The justice directs the sheriff or constable to make a list of twenty-four inhabitants of the county qualified to serve as jurors in the district court, or of eighteen if the jury is to consist of six persons. Each party may then strike out six of the names. The justice then issues a venire [Footnote: For forms, see page 280.] to the sheriff or a constable, directing him to summon the persons whose names remain on the list to act as jurors.

Witnesses.--If any of the witnesses should be unwilling to come, the justice issues a subpoena [Footnote: For forms, see page 279.] commanding them to appear. The subpoena may contain any number of names and may be served by any one. It is "served" by reading it to the person named therein, or by delivering a copy of it to him. A witness, however, is not bound to come unless paid mileage and one day's service in advance.

THE TRIAL.

Opening Statement.--The usual procedure is as follows: After the jury has been sworn, the plaintiff's attorney reads the complaint and makes an opening statement of the facts which he expects to prove. The purpose of the opening statement is to present the salient points of the case, so that the importance and bearing of the testimony may be readily seen by the jury.

Evidence.--The evidence [Footnote: The most important Rules of Evidence are given in chapter VII.] for the plaintiff is then introduced. Each witness, after being duly sworn, gives his testimony by answering the questions of counsel. After the direct examination by the plaintiff's attorney, the witness may be cross-examined by the attorney for the defendant. When the evidence for the plaintiff is all in, the defendant's attorney makes his opening statement, and then the witnesses for the defense are examined. The direct examination is now, of course, conducted by the counsel for the defendant, and the cross-examination by opposing counsel. When all the evidence for the defense has been introduced, the plaintiff may offer evidence in "reb.u.t.tal," 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 reb.u.t.tal.

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 a.s.sented to by the rest.

Judgment.--After the verdict, the justice enters judgment in accordance therewith. Judgment may include certain sums of money allowed to the successful party in part compensation of his expenses. Such allowances and certain court expenses are called "the costs."

AFTER THE TRIAL.

Appeal.--If the defeated party feels that he has not been justly dealt with, he may ask for a new trial. If this be refused he may appeal his case to a higher court. He must make affidavit that the appeal is not taken for the purpose of delay, and must give bonds to cover the judgment and the costs of appeal. The higher court affirms or reverses the judgment, in the latter case granting a new trial.

Sometimes the case is tried anew in the higher court, just as if there had been no trial in the justice court.

Execution.--If no appeal is taken the defeated party may "satisfy" the judgment, that is, pay to the justice the sum specified therein. If at the expiration of the time allowed for appeal the judgment remains unsatisfied, the justice may issue an execution [Footnote: For forms, see Appendix, pp. 282-3.] against the property of the debtor.

II. IN CRIMINAL ACTIONS.

_Jurisdiction._

Justices of the peace have jurisdiction throughout their respective counties, as follows:

1. _To try_ charges where the punishment prescribed by law does not exceed a fine of one hundred dollars or imprisonment for three months. [Footnote: The extent of this jurisdiction varies somewhat in different states.]

2. _To examine_ persons charged with crimes greater than those specified above, and to dismiss them or hold them for trial in a court having jurisdiction, as the facts seem to warrant.

3. _To prevent_ crimes, by requiring reckless persons to give security to keep the peace.

PROCEEDINGS IN CRIMINAL TRIAL.