CHAPTER XII.

THE COURTS OF JUSTICE.

207. Determination of Rights.-The industrial, political, social and moral rights of a person may be questioned or endangered by another: to determine these rights courts of justice administer the laws of the States and of the United States.

208. State Courts.-The State courts are the inferior or lower courts, such as the justice's court and the county courts; and the higher or superior courts, such as the court of appeals, the court of errors or the supreme court. In the State courts are tried all cases of a civil or of a criminal nature that arise within the jurisdiction of the court before which the cases are brought for decision. A case, if not appealed to a higher court, is settled in the court in which it is first brought. The laws of the several States and of the United States determine whether or not a case may be appealed to a higher court. Nearly all suits at law begun in State courts are settled there. Suits at law are managed by men learned in the law, who act in the place or turn of another, and who are therefore called attorneys-at-law. A person may manage his own case at law, but he is safer in employing an attorney. The court consists of the judge or judges sitting on the bench for the purpose of administering justice. The higher courts are provided with clerks or recording officers and reporters;* there are also in attendence attorneys-at-law

* Reports and Reporters.-The decisions of the higher courts are recorded, and from the records are made up the volumes of legal reports by the law reporters of the courts. Each State and the United

and officers that assist the court, such as the sheriff, constables, tipstaves and crier. The judgment of an inferior court is final, unless set aside by the superior court.

209. Military and Naval Courts.-Offences committed in the army or navy are tried before a military or a naval commission called a court-martial. Military offences at critical times in a nation's history demand fair and speedy trial. In times of war, civil procedure would be inadequate to the necessities of the case. A case decided by a court-martial cannot be reopened except by order of Congress or of the President with the consent of Congress. Only the President of the United States can pardon persons found guilty by military or naval courts.

210. Arbitration-Matters of difference between contending parties are often adjusted by arbitration, which is the reference of the matters in dispute to disinterested persons chosen by the parties, each party choosing one, and these two choosing a third arbitrator. Crimes cannot be made the subject of arbitration. The opinion or finding of the arbitrators is called an award, and is binding on the parties to the arbitration. In modern times nations have occasionally settled differences between themselves by arbitration.*

States provide for the publication of their own series of reports. These reports are the guide of attorneys-at-law and of judges. They are prepared with great care.

* This humane and peaceful method of arriving at a judgment was pursued by England and the United States in the celebrated Alabama case, a body of claims made by the United States against England for alleged violations of neutrality during the Civil War. The tribunal to determine the disputes between the two countries assembled December 15, 1871, in Geneva, Switzerland, and consisted of five arbitrators-Count Federigo Sclopis of Salerano, named by the king of Italy; Baron Itajuba, named by the emperor of Brazil; Mr. Jaques Staempfli, named by the president of Switzerland; Charles Francis Adams, appointed by the President of the United States; and Lord Chief-justice Sir Alexander Cockburn, appointed by the queen of Great Britain. After an ex

211. Criminal Cases and Civil Cases.-All cases at law are divided into two classes-criminal and civil. A criminal case is one in which a suit is brought, usually in the name of the State, by one person against another for the commission of a wrong endangering his life, health, property, liberty or reputation. A civil case is one in which suit is brought to compel a person to execute his contract or to make compensation for refusing or neglecting to do so. Courts of justice administer civil and criminal law, and the same judge may at different times sit as a criminal court or as a court hearing civil cases. Courts of oyer and terminer and jail delivery and courts of nisi prius are courts which redress public wrongs-that is, crimes and misdemeanors. Courts of common pleas are courts which redress civil wrongs or wrongs arising from breach of contract. Probate courts, orphans' courts or surrogates' courts are courts which settle the estates of deceased persons.

212. History of a Civil Case.-A civil case originates in a breach of contract. A contract is an agreement to do or not to do a particular thing.* Contracts are expressed —that is, stated formally in writing or verbally before witnesses; or implied—that is, such as reason and justice dictate, and which the law presumes that every man undertakes to perform. If I employ a person to work for me, the law implies that I shall pay him the value of his services. It is implied in all contracts that if I fail in performing my part of the agreement I shall pay the other party such damages as he has sustained by my neglect or

haustive examination of the matters submitted to it the tribunal awarded $15,500,000 in gold, September 14, 1872, as the indemnity to be paid by Great Britain to the United States in satisfaction of all claims referred to the consideration of the tribunal. The award was promptly paid, and since that famous decision it has become the custom of civilized nations to seek a settlement of international disputes by arbitration * See ¶ 172, p. 90.

refusal. The great law of contracts is, that all persons are legally bound to keep their contracts or suffer the penalty for the breach of them.

The party bringing the suit at law is called the plaintiff; his opponent is called the defendant. Each party usually seeks the advice of an attorney, and if the parties cannot come to an amicable settlement the case is brought before the court having jurisdiction in such cases. After the filing of the necessary legal papers as introductory to the case in court, it comes on in its order for trial. The plaintiff, his attorney and his witnesses confront the defendant, his attorney and his witnesses. By mutual consent the case may be settled upon a hearing by the judge alone, but usually the case is set down for a jury trial. All cases that come before the courts are brought upon oath of the parties bringing them. Plaintiffs, defendants and witnesses at some stage of the case take oath as to the truth of the matter involved. This compelling every person connected with the case to declare his knowledge of it upon oath, imparts solemnity to the proceedings, and makes each person so swearing or affirming, guilty of perjury if he does not tell the truth.

Before the case opens, if a jury trial, a jury is empanelled. Trial by jury is very ancient, and its origin is not clear. Some think that it arose in England from the custom prevailing there many years ago of twelve men, called compurgators, or oath-makers, taking solemn oath that to the best of their individual belief certain statements were true or false. In those ancient days men sometimes resorted to curious devices to determine the guilt or the innocence of an accused person. He was compelled to plunge his naked arm or his body into boiling water or boiling oil, or to pick up a red-hot ploughshare, or to walk over a fiery path, or to wage battle in single combat. If he performed these requirements unharmed, he was thought to be innocent. At the present time, in England and in

the United States, trial by jury is the common manner of trying cases, and the right to trial by jury is secured to citizens by the unwritten constitution of England and by the written Constitution of the United States.*

213. History of a Criminal Case.-Offences of an atrocious nature, such as murder, arson, burglary and larceny, are called crimes; offences of an inferior degree of guilt are called misdemeanors. Crimes and misdemeanors hazard the peace of society, and are therefore public wrongs. The person injured or his legal representative, or the attorney representing the State, brings the action in a criminal case. First, upon evidence sufficient to satisfy a justice of the peace, a magistrate or a judge, the person suspected or accused of committing the offence is arrested, under warrant, by the constable or sheriff. Upon arrest the prisoner is subject to preliminary examination before the officer who issued the warrant. If not discharged, the prisoner is remanded into custody to await trial. If the offence is a bailable one, he may be set at liberty on bail, which is secured to the State by sufficient securities. The State becomes the plaintiff and is called the prosecution; the prisoner is the defendant. After a reasonable time the prisoner, if not out on bail, may petition for the right of habeas corpus, which the court is bound to notice.† Meanwhile, the attorney for the State has drawn up, accurately and in legal form, a written accusation which is known as an indictment. The indictment states the offence of which the prisoner or the defendant is accused. The prosecuting attorney, representing the State, lays the indictment before the grand jury.

214. The Grand Jury.-The grand jury is a body of men, varying in number in the different States, selected according to law in the county, to examine the indictments presented before it by the prosecuting attorney for the State or county. An indictment is the complaint in * See ¶ 168, p. 89. † See ¶ 156, p. 85.