The Project Gutenberg eBook ofStudies in CivicsThis ebook is for the use of anyone anywhere in the United States and most other parts of the world at no cost and with almost no restrictions whatsoever. You may copy it, give it away or re-use it under the terms of the Project Gutenberg License included with this ebook or online atwww.gutenberg.org. If you are not located in the United States, you will have to check the laws of the country where you are located before using this eBook.Title: Studies in CivicsAuthor: J. T. McClearyRelease date: January 1, 2004 [eBook #10733]Most recently updated: December 20, 2020Language: EnglishCredits: E-text prepared by Charles Franks, Andy Schmitt, and Project Gutenberg Distributed Proofreaders*** START OF THE PROJECT GUTENBERG EBOOK STUDIES IN CIVICS ***
This ebook is for the use of anyone anywhere in the United States and most other parts of the world at no cost and with almost no restrictions whatsoever. You may copy it, give it away or re-use it under the terms of the Project Gutenberg License included with this ebook or online atwww.gutenberg.org. If you are not located in the United States, you will have to check the laws of the country where you are located before using this eBook.
Title: Studies in CivicsAuthor: J. T. McClearyRelease date: January 1, 2004 [eBook #10733]Most recently updated: December 20, 2020Language: EnglishCredits: E-text prepared by Charles Franks, Andy Schmitt, and Project Gutenberg Distributed Proofreaders
Title: Studies in Civics
Author: J. T. McCleary
Author: J. T. McCleary
Release date: January 1, 2004 [eBook #10733]Most recently updated: December 20, 2020
Language: English
Credits: E-text prepared by Charles Franks, Andy Schmitt, and Project Gutenberg Distributed Proofreaders
*** START OF THE PROJECT GUTENBERG EBOOK STUDIES IN CIVICS ***
E-text prepared by Charles Franks, Andy Schmitt, and Project Gutenberg
Distributed Proofreaders
BY JAMES T. McCLEARY, M.C.
[Illustration: (House of Representatives) UNITED STATES CAPITOL (Senate.)]
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 itisintended 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 thespiritof law, which to know is to respect.
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 aresuméof 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 RevisedStatutes of the state and of the United States, the Legislative Manual ofthe state, a good political almanac for the current year, theCongressional 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 andbetweenthem, but also right downintothem. 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 itsay?2. What does itmean?3.Whywas 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.
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, thatonly 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 becauseby 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 thateveryperson 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 organizesto 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 termgovernmentis 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 calledgovernment?
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 atownshipand atown?[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 contributeaccording 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.
* * * * *
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.
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.
1. Laying out a Road.—Make out a petition for a town road, have it duly signed and posted. In due season present it to the supervisors who were elected at your town meeting.
The supervisors, after examining the petition carefully and being sure that it is in proper form and that it has been duly posted, will appoint a time and place of hearing and give due notice thereof.
When the day of hearing arrives they will examine the proofs of the posting and service of the notices of hearing before proceeding to act upon the petition.
Having heard arguments for and against the laying of the road, the supervisors will render their decision in due form.
In awarding damages, the supervisors will probably find four classes of persons: first, those to whom the road is of as much benefit as damage, and who admit the fact; second, those who should have damages, and are reasonable in their demands; third, those who claim more damages than they are in the judgment of the supervisors entitled to; and fourth, those who from some cause, (absence, perhaps,) do not present any claim. From the first class, the supervisors can readily get a release of damages. With the second, they can easily come to an agreement as to damages. To the third and fourth, they must make an award of damages. Let all of these cases arise and be taken care of.
The supervisors must be careful to issue their road order in proper form, and to see that the order, together with the petition, notices, affidavits and awards of damages, are filed correctly and on time. The town clerk must read the law carefully to ascertain his duty, and then perform it exactly. See that fences are ordered to be removed. Let one of the persons who feels himself aggrieved by the decision of the supervisors, "appeal" to a proper court. Let this be done in due form. As each step is taken, let the reasons for it be made clear.
2. Maintaining Roads.—Road overseers return the list of persons liable to road labor. How are these facts ascertained, and when must the "return" be made?
Supervisors meet and assess road labor, and sign road tax warrants. When and how is this done?
How is the road tax usually paid? How else may it be paid? How does the overseer indicate that a person's tax is paid? If a person liable to road tax does not "commute," and yet neglects or refuses to appear when duly notified by the road overseer, what can the latter do about it? How is delinquent road tax collected? How can a person who has paid his tax prove that he has paid it?
Under which of the three great purposes of government mentioned in the preliminary chapter does the making of roads come?
THE TOWN—Continued.
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.
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 tochance.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 byfighting. 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 theFolk-mootor 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 thateveryboy 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, thatthe 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 thefactsin the case are brought out by means ofwitnesses. 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 bytwelvemen 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 ofjudgeshipin our present courts.
And finally, a boy naturally reserves the right, mentally or avowedly, ofappealingfrom 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.
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 andunacquaintedwith 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 awitness, 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.
Definitions.—ACivil Actionis 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 theplaintiff; the one against whom it is brought, thedefendant. The plaintiff and the defendant are called thepartiesto 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.)
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."
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.
Jurisdiction.
Justices of the peace have jurisdiction throughout their respective counties, as follows:
1.To trycharges 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 examinepersons 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 preventcrimes, by requiring reckless persons to give security to keep the peace.
Preliminary.
Complaint.—If a crime has been committed, the sufferer, or any one else, may appear before the justice of the peace and make complaint, under oath, specifying the nature of the crime, the time of its commission, and the name of the person believed to have perpetrated it, and requesting that he be apprehended for trial.
Warrant.—If upon careful examination of the complainant and any witnesses whom he may bring, it appears that the offense has probably been committed, the justice issues a warrant, reciting the substance of the complaint, and commanding an officer to arrest the accused and produce him for trial.
Return.—The officer arrests the accused, brings him before the justice, and makes a return of the warrant. The return is a statement on the back of the warrant telling how its commands have been executed. (See p. 283)
Bail.—The accused is entitled to a speedy trial. But if for good cause it seems best to postpone it, the accused may be released from custody upon giving sufficient bail for his appearance at the time fixed for trial. If he cannot furnish bail, he is committed to jail or left in charge of the officer.
Subpoena.—One good reason for postponing a trial is to enable the parties to secure witnesses. To this end, the justice issues subpoenas. But in this case the witnesses must come without the tender of the fee.
The Trial.
Arraignment.—The first step in the trial proper is to inform the defendant of the nature of the crime with which he is charged. The accusation, as stated in the warrant, is distinctly read to him by the justice, and he is required to plead thereto. If he pleads guilty, conviction and sentence may follow at once. If he pleads not guilty, the trial proceeds.
Trial.—After the joining of issue, and before the court proceeds to the examination of the merits of the case, a jury is impaneled as in a civil action. A jury may be waived by the defendant. Then follow the taking of the testimony, the arguments of counsel, the consideration and verdict by the jury. The defendant is then discharged if not guilty, or sentenced if found guilty. The penalty depends, of course, upon the nature of the offense.
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.
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.
The care for the rights of the accused is based upon the principle in our law, that every man shall be held innocent tillprovedguilty. Another principle is that a person accused of crimecannot be tried in his absence.The purpose of arresting him is to secure hispresenceat the trial. If he can guarantee this by bail he is set at liberty, otherwise he is confined in jail. (See p. 231.)
Pertinent Questions.
Are the justices and constables town, county or state officers? How is it known at the county seat who the justices and constables in each town are? Define docket, summons, warrant, pleading, subpoena, crime, felony, misdemeanor, venire, costs, execution, recognizance. Why are there two justices in each town? What is meant by "change of venue?" How is an oath administered in court? What persons may not serve as witnesses? If a criminal should make confession of the crime to his lawyer, could the lawyer be subpoenaed as a witness on the trial? Name some things "exempt from execution" in this state. What is to hinder a bitter enemy of yours, if you have one, from having you committed to prison. Can acivilsuit proceed in the absence of the defendant?
Practical Work.
Assume that John Smith bought from Reuben White a cow, the price agreed upon being $30; that Smith refuses to pay, and White sues him. Write up all the papers in the case, make proper entries in the docket, assessing costs, etc.
Need of.—Owing to conditions, natural and artificial, favorable to business enterprises, people group together in certain places. Living in a limited area, the amount of land occupied by each family is small, and the territory is surveyed into lots and blocks. To make each homestead accessible, streets are laid out. The distances traveled being short, people go about principally on foot; hence the need of sidewalks. To reduce the danger of going about after dark, street-lamps are needed. The nearness of the houses to each other renders it necessary to take special precautions for the prevention of fires, and for their extinguishment in case they break out.
But to provide and maintain all these things takes money, and the people living in the other parts of the town not sharing the benefits would hardly like to help pay for them. Hence it is but just that the people living in the thickly settled portion of the town should be permitted to separate from the rest and form an organization by themselves.
Again, the circumstances being different, the regulations must be different in this part of the town. For instance, in the country a man may drive as fast as he pleases, while here fast driving endangers life and must be prohibited. In the country sleigh-bells are not needed, while here they must be used to warn people of the approach of teams. In the country, if a man's house takes fire no other person's property is endangered; but here the danger is such that all the people are interested in each man's house, and the community may require that chimneys be properly constructed and ashes safely disposed of.
How Incorporated.—Villages are, with rare exceptions, incorporated under a general law specifying the number of inhabitants, the mode of voting on incorporation, etc.
The method in Minnesota, which may be taken as typical, is as follows: Upon petition of thirty or more voters resident upon the lands to be incorporated, which lands have been divided into lots and blocks, the county commissioners appoint a time, and give due notice thereof, when the voters "actually residing within the territory described," may vote upon the question. If a majority of those voting favor incorporation, the commissioners file with the register of deeds the original petition, a true copy of the notice of election, and the certificate showing the result of the vote. The village thus becomes incorporated, and has the usual corporate powers. It organizes by electing officers.
Elective Officers.—The usual elective officers of a village are a president, three trustees, a treasurer, and a recorder, who are chosen for one year, and two justices of the peace and a constable, elected for two years. [Footnote: The difference in term is accounted for by the fact that the justices and constables are in a measure county officers.]
The Council and Its Powers.—The president, the three trustees, and the recorder constitute the village council. They may make, for the following purposes among others, such ordinances or by-laws as they deem necessary:
1. To establish and regulate a fire department; to purchase apparatus for extinguishing fires; to construct water-works; to designate limits within which wooden buildings shall not be erected; to regulate the manner of building and cleaning chimneys, and of disposing of ashes; and generally to enact such necessary measures for the prevention or extinguishment of fires as may be proper.
2. To lay out streets, alleys, parks, and other public grounds; to grade, improve, or discontinue them; to make, repair, improve, or discontinue sidewalks, and to prevent their being encumbered with merchandise, snow or other obstructions; to regulate driving on the streets; to appoint a street commissioner.
3. To erect lamp-posts and lamps, and provide for the care and lighting of the lamps.
4. To appoint a board of health, with due powers; to provide public hospitals; to regulate slaughter-houses; to define, prevent, and abate nuisances.
5. To establish and maintain a public library and reading-room.
6. To prohibit gambling; to prevent, or license and regulate the sale of liquor, the keeping of billiard-tables, and the exhibition of circuses and shows of all kinds; to appoint policemen, and provide a place of confinement for offenders against the ordinances.
7. In general, "to ordain and establish all such ordinances and by-laws for the government and good order of the village, the suppression of vice and immorality, the prevention of crime, the protection of public and private property, the benefit of trade and commerce, and the promotion of health, not inconsistent with the constitution and laws of the United States or of this state, as they shall deem expedient," and to provide penalties for the violation of the ordinances.
All fines and penalties imposed belong to the village.
Appointive Officers.—The council appoints, as provided by law, a village attorney, a poundmaster, one or more keepers of cemeteries, one or more fire-wardens, and regular and special policemen; and it prescribes the duties and fixes the compensation of these officers. The council also elects at its first meeting, a village assessor, who shall hold his office one year.
Vacancies and Removals.—Vacancies in any of the village offices are filled by the council, and it has power to remove any officer elected or appointed by it whenever it seems that the public welfare will be promoted thereby.
Like Town Officers.—The assessor, treasurer, justices of the peace, and constable, have the same duties and responsibilities as the corresponding officers in the town. The village has a seal, of which the recorder is the custodian; and he is, as has been said, a member of the council. Otherwise the duties of the recorder are similar to those of the town clerk.
Elections.—A village usually constitutes one election district and one road district. Village elections are conducted as are those in a town.
Enlargements.—Lands adjoining the village may be annexed to it, at the wish and with the consent of the voters of the territory and of the village. The will of the voters aforesaid is expressed at an election called, after due notice, by the county commissioners.
Some Pertinent Questions.
Name the incorporated villages in your county. Any others that you know. Name some villages, so-called, which are not incorporated. Why are the petition and other papers of incorporation recorded?
Can a person living in a village build a sidewalk to suit his own fancy? Why? Suppose that owing to a defective sidewalk you should break your leg, what responsibility would lie on the village?
How would you get your pay if you had a bill against a village?
The village council has power "to establish and regulate markets." Why should the sale of meats be regulated any more than the sale of flour or of clothing? May the sale of bread be regulated?
What is the difference between a policeman and a constable.
Compare the village and the town, telling wherein they are alike and wherein they are different.
Debate.
Resolved, That for a village of 1000 inhabitants or less it is wise not to become incorporated.