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Article Index

Chapter XVII

Judicial Department. Justices' Courts.

§1. Having seen how the legislative and executive departments of a state government are constituted, and how the laws are made and executed, the manner in which the local affairs of counties and towns are conducted, and the powers and duties of their respective officers; we proceed to describe the _judicial_ department, the powers and duties of judicial officers, and the manner in which justice is administered.


§2. It is the business of the legislature to determine what acts shall be deemed public offenses, or crimes, and to make laws for securing justice to the citizens in their dealings and general intercourse with each other; but to judge of and apply the laws; that is, to determine what the law is and whether it has been broken, and to fix the just measure of damage or of punishment, and to order such decision to be carried into effect, are duties which, as has been observed, have been wisely assigned to a separate and distinct department. (Chap. VIII. §7.)

§3. A government without some power to decide disputes, to award justice, and to punish crime according to the laws of the state, would not be complete. To allow every man to be his own judge in cases of supposed injury, and to redress his own wrongs, would endanger the rights of others. Justice is best secured to the citizens by establishing courts for the redress of injuries and the punishment of crimes; and that no person may suffer unjustly, it is provided that every person charged with crime or any other wrong, is entitled to a fair and impartial trial.

§4. For the convenience of persons who may be compelled to seek relief at law, courts are established in every town. These are courts of the lowest grade, and are called _justices' courts_, being held by justices of the peace who are, in most of the states, elected by the people of the several towns. They are called the lowest courts, because they have jurisdiction only in cases in which the smallest sums or damages are claimed, or in which only the lowest offenses are tried. The word _jurisdiction_ is from the Latin _jus_, law, or _juris_, of the law, and _dictio_, a pronouncing or speaking. Hence the _jurisdiction_ of a court means its power to pronounce the law.

§5. Although justices of the peace are generally elected in the towns, their jurisdiction extends over the county; that is, they have power to try causes arising in any part of the county, or between citizens residing in other towns. The jurisdiction of justices of the peace is generally prescribed by law. The law prescribes the sum that may be sued for, or the amount of damage that may be recovered in a justice's court, and the grade of offenses that may be tried in it. In some states justices of the peace may try suits only in which the sum in controversy does not exceed $50; but in most of them, the jurisdiction of a justice extends, it is believed, to sums of $100 or more.

§6. Causes, in which money is claimed for damage or for debt, are called _civil_ causes; those for the trial of persons charged with crime, or some misdemeanor, are called _criminal_ causes. All crimes, strictly speaking, are misdemeanors. In common usage, however, the word _misdemeanor_ denotes a smaller offense, such as is usually punishable by fine, or by imprisonment in a county jail, and not in a state prison. Causes, actions, and suits, are words of similar meaning in law language, being generally used to signify prosecutions at law, or lawsuits. The party that sues is called _plaintiff_; the party sued is the _defendant_.

§7. Prosecutions at law are conducted in nearly the same manner in the different states. The following is a sketch of the proceedings in an ordinary civil suit in a justice's court: The justice, at the request of the plaintiff, issues a _summons_, which is a writ or precept addressed to a constable of the town, in some states to any constable of the county, commanding him to summon the defendant to appear before the justice on a day and at an hour specified, to answer the plaintiff (naming him) in a suit, the nature of which is stated in the summons.

§8. The constable serves the summons by reading it or stating the substance of it to the defendant; and if requested, gives him a copy of it. If he does not find the defendant, he leaves a copy at his place of residence with some one of the family of proper age. At or before the time named for trial, the constable returns to the justice the summons with an indorsement stating the day on which it was served, and whether served personally or by copy. If served by copy, and the defendant does not appear at the time named for trial, a new summons is issued, as the practice is in some states--perhaps all of them; and the trial may not proceed unless a summons has been personally served.

§9. The parties may appear in person, or by attorney. An _attorney_ is any person lawfully appointed to transact business for another; hence the word attorney does not always mean an attorney at law, or lawyer, who is properly an officer of a court of law. When the parties have appeared and answered to their names, they make their _pleadings_; that is, the plantiff declares for what he brings his suit; and the defendant states the nature of what he has to _offset_ against the demand of the plaintiff, or denies the demand altogether. These acts of the parties are called _joining issue_.

§10. If the parties are ready for trial, the justice proceeds to try the issue. If the witnesses have not been subpœned and are not in attendance, the cause is adjourned to a future day; and the justice, at the request of either party, issues a _subpœna_, which is a writ commanding persons to attend in court as witnesses. The witnesses on both sides are examined by the justice, who decides according to law and equity, as the right of the case may appear, in which he is said to _give judgment_. To the amount of the judgment, whether against the plaintiff or the defendant, are added the costs; for it is considered to be just that the party in default shall pay the expense of the suit. The costs consist of the _fees_ or compensation to be paid the justice, constable and witnesses for their services.

§11. If a defendant does not appear at the time of trial, the justice may proceed to try the cause, and decide upon the testimony of the plaintiff's witnesses. If a plaintiff does not answer or appear when his name is called in court, the justice enters judgment of _nonsuit_. A plaintiff may, at any time before judgment is rendered, discontinue or withdraw his action, in which case also judgment of nonsuit is given. In cases of nonsuit, and also when no cause of action is found, judgment is rendered against the plantiff for the costs.

§12. A debtor may avoid the expense of a lawsuit by _confessing judgment_. The parties go before a justice, and the debtor acknowledges or confesses the claim of the creditor, and consents that the justice enter judgment accordingly. In some states, the confession and consent must be in writing, and signed by the debtor. The amount for which judgment may be confessed is limited by law, but is, in some states at least, and perhaps in most if not all of them, larger than the sum to which the jurisdiction of a justice is limited in ordinary suits.