Part 7 (1/2)

--6. It is the business of a _grand jury_ to inquire concerning crimes and misdemeanors committed in the county; and if there appear just grounds of accusation against any person, they make to the court a presentment or formal charge against him, upon which he is to be put upon trial. The number of grand jurors is not always the same. In some states there may not be more than twenty-three nor less than twelve. It is not required that they shall all agree in order to put a person upon trial.

--7. On the opening of the court, the grand jurors are sworn to make a true presentment of all things given them in charge. The judge then gives them a charge, and appoints one of them foreman; and the jurors retire to a private apartment to attend to their duties. They hear all complaints brought before them against persons for crimes and breaches of the peace, and examine witnesses who appear to testify; and when it is requested, they have the a.s.sistance and advice of the state's attorney; or as he is called in some states, the _district attorney_, or _prosecuting attorney_. If they think any person complained of ought to be tried, they draw up a writing, in which they charge him with the offense of which they think him guilty. This is called an _indictment_.

It is signed by the foreman, indorsed ”a true bill,” and carried by the jury into court. If the person accused has not before been arrested, he may now be arrested, and put upon trial. (See Chap. XVIII, --12-14.)

--8. As grand juries do not try crimes, but merely make inquiry into them, some may not readily perceive the necessity of such juries.

Innocent persons might be subjected to great inconvenience and expense in defending themselves in court against the slanderous reports or false accusations of evil minded persons. It is to prevent this that grand juries are inst.i.tuted, who make careful examinations into the cases brought before them, and do not often charge persons with crime unless there is a strong probability of their being found guilty on trial.

--9. So important was the inst.i.tution of grand juries considered, that the const.i.tution of the United States, to which the const.i.tutions and laws of the states must conform, was made to provide, that ”no person shall be held to answer for a capital or other infamous crime, unless on a presentment or indictment of a grand jury,” except in certain cases.

(Con. U.S., Amend. Art. V. For the definition of ”infamous crime,” see Chap. VI., --7.)

--10. It is the opinion of many that this requirement of a previous indictment by a grand jury has reference only to the courts of the United States; and that the states may dispense with it. Hence, efforts are now making in some states to abolish grand juries. It is supposed that an examination at all times before a justice or a judge, when the prisoner can be present with his witnesses, is more likely to protect him against being unnecessarily subjected to the trouble and expense of a trial, than before a grand jury, where complaints are often made by malicious persons, and sustained by the testimony of partial or corrupt witnesses.

--11. The _supreme court_ is generally the next higher, and in most of the states, the highest state court. This court differs somewhat in the different states, both in the manner of its formation and in its jurisdiction. It is believed, however, to have, in the states generally, both original and appellate jurisdiction, civil and criminal. In the state of New York and a few other states, there is one higher court, called _court of appeals_, which has appellate power only. Its business is to review cases from the supreme court.

--12. Suits in the county, circuit, and supreme courts, are commenced by a _writ_, (in some states a summons or a declaration,) which is served by the sheriff of the county in which the suit is to be tried. He also serves warrants and executions issued by these courts. A sheriff is to these courts what a constable is to a justice's court. His powers and duties have been elsewhere described. (Chap. XIV., --8.)

Chapter XX.

Chancery or Equity Courts; Probate Courts; Court of Impeachment.

--1. It might be supposed, that in inst.i.tuting the courts which have been described, all necessary provision had been made for securing justice to the citizens. But many cases arise in which justice and equity can not be obtained in these courts. To afford relief in such cases, a court has been established called a _court of equity_, or _court of chancery_.

What often renders it impossible to get justice in ordinary courts of law, is the want of witnesses; but in a court of equity the parties may themselves be put on oath.

--2. A debtor, to avoid the payment of his debts, may conceal his property or his money; but this court may compel him to disclose and give up the same to satisfy an execution; and it may prevent persons indebted to him from making payment to him. A person refusing to fulfill a contract may, in courts of common law, only be sued for damage; but this court may in certain cases compel him to fulfill the contract itself. It may also restrain individuals and corporations from committing fraudulent acts, and prevent persons from committing wastes on land and certain other injuries, until the right at law can be tried.

--3. Courts of chancery were established, it is believed, in a majority of the old states. But separate and distinct organizations called chancery courts, now exist in but a few states; the power to try suits in equity having been given to the judges of the common law courts.

--4. Suits _in equity_ are not commenced as suits _at law_. The plaintiff prepares a bill of complaint, the facts stated in which are sworn to by himself. The bill, which contains a pet.i.tion or prayer that the defendant may be summoned to make answer on oath, is filed with the clerk of the court, who issues a subpna commanding the defendant to appear before the court on a day named. A trial may be had on the complaint and answer alone; or witnesses may be introduced by the parties. The case is argued by counsel, and a _decree_ is p.r.o.nounced by the court, which the court has power to carry into effect.

--5. There is another kind of courts which are in their nature different from ordinary law courts, and are called _probate courts_. There is in every county a probate court held by a _judge of probate_, whose duties relate to the proving of wills and the settling of the estates of persons deceased. A _will_ is a writing in which a person gives directions concerning the disposal of his property after his death. The Latin word _probatus_ means proof; from which _probate_ has come to be applied to the proving of a will. (See Wills and Testaments.) In the state of New York the judge of this court is called _surrogate_, and the court is called _surrogate's court_.

--6. There is still another court in every state, which is not a common law court. It is the _court of impeachment_. The name is applied to the senate when sitting on a trial of impeachment. An _impeachment_ is a charge or accusation against a public officer for corrupt conduct in his office; as if a governor, for money offered him, should approve and sign a law; or a judge should, for money or from some other selfish or personal motive, give a wrong judgment. The const.i.tution gives to the house of representatives the power to impeach, and to the senate the power to try the persons impeached. This practice has come from Great Britain, where the impeachment is made by the house of commons, and the house of lords is the high court of impeachment.

--7. The house of representatives, in a case of impeachment, acts in nearly the same manner as a grand jury in a court of law. A complaint is made to the house; and if, upon examination, there appear to a majority of the members present sufficient grounds for the charge, an accusation in writing is prepared, called _articles of impeachment_, and delivered to the senate. In some states, a majority of the members elected is necessary to impeach. The president of the senate orders the court to be summoned. The accused is brought before the court to answer to the charge, and has counsel a.s.signed him. The senators are sworn truly to try and determine the impeachment according to evidence; and a day is fixed for trial.

--8. The house of representatives usually choose from their number a committee of managers to conduct the trial, the proceedings in which are the same as in law courts. The senators retire and deliberate as jurors in such courts. Two-thirds of the senators--in some states two-thirds of all the senators elected--must concur in order to convict the person accused. If a person is convicted, the court may remove him from office, or disqualify him to hold any office in the state, for a time, or for life; or may both remove and disqualify him. This court can p.r.o.nounce no other sentence. But if the act committed is a crime, the offender may also be indicted, tried, and punished in a court of justice.

--9. Judicial officers may also be removed by the governor on address of the legislature. If a judge is suspected of corrupt conduct in his office, or of being incompetent to discharge its duties, complaint is made to the legislature, and the party complained of is notified, and an opportunity is given him of being heard in his defense. If both branches, by the required majorities, concur in the opinion that he ought to be removed, they address the governor, setting forth their reasons for the removal. If the governor considers the reasons sufficient, the officer is removed. This mode of removal does not exist in all the states. In New York, and perhaps in a few other states, the legislature makes the removal without the concurrence of the governor; and in that state some of the lower judicial officers may be removed by the senate on the recommendation of the governor. In a few states, judges are not removable by impeachment.

Chapter XXI.

a.s.sessment and Collection of Taxes.