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CHAPTER XXVI

THE JUDICIAL SYSTEM

The Structure of the Courts

THE courts are the great tribunals of the citizen for the protection of his personal and property rights; and almost every one, in some capacity, comes in contact with the judiciary of his state. If he is a business man, he may have to resort to a court to collect a bad debt or a note, or to settle a dispute with a fellow merchant. If he is injured in an accident, he goes into a court to sue the responsible party for damages. He may have to appear as a witness to tell what he knows of the transactions involved in a lawsuit; or if he is unfortunate enough to have his pocket picked or his house robbed, he may testify against the offender. Then, practically every man not legally exempt, is liable, at one time or another during his life, to be called upon to serve on a jury, and thus himself become a part of the regular judicial machinery. Finally, if he dies leaving heirs, they may need the assistance of the courts in the distribution of his estate or in collecting his life insurance. These are only a few of the innumerable instances which illustrate the place of the courts in the life of the citizen.

The great mass of litigation is disposed of by the state courts.' The jurisdiction of the federal courts is specifically defined, and within somewhat narrow limits, by the Constitution of the United States. Moreover, in many cases the state courts have a concurrent jurisdiction with the federal courts, and a litigant has a choice of tribunals before which to bring his suit.

In every state, the courts are arranged in a progressive series.3

1 Reference, Baldwin, The American Judiciary, p. 125.

2 See above, chap. xv.

3 For the local courts, see below, chap. xxix; for the court of impeachment, above, p. 509.

At the bottom of the scale stand the justices of the peace, who have jurisdiction over civil cases involving very small amounts, and over petty offences. In large cities, the criminal and civil jurisdiction of the justices of the peace is sometimes divided between two sets of courts: the police courts and the municipal civil courts.

In most states there are county courts, generally of limited jurisdiction. They have cognizance of actions involving considerable sums and usually consider appeals from judgments of justices of the peace. They also have jurisdiction over most of the criminal offences. They are sometimes styled courts of common pleas or district courts. In some states, they have certain administrative functions in addition to their judicial duties.

Often there is a superior, circuit, or district court, immediately above the county court, which enjoys unlimited original jurisdiction in civil and criminal matters and may try all cases over which the lower courts have no jurisdiction. The judges of this tribunal are generally elected or appointed for districts larger than the county, but hold terms of court within the several counties of their district or circuit.

At the head of the judicial system of each state stands the appellate court of last resort, which ordinarily deals only with appeals on points of law, not of fact. It is known by various names, such as supreme court, court of appeals, court of errors and appeals, or supreme judicial court.

In addition to these courts, there are sometimes special tribunals for particular purposes: chancery courts, which administer equity; probate or surrogates' courts for the settlement of estates of deceased persons; 2 children's courts dealing with offenses committed by children;3 and courts of claims for hearing claims against the state.

The courts, with the exception of the very lowest, have clerks to keep the records of their proceedings and to perform ministerial functions such as the issue of processes and writs. In many states, the offices of county clerk and court clerk are com

1 Below, p. 554.

2 Ibid., p. 645. Where the latter are established, there is usually a separate one for each county. They are ordinarily known as courts of probate, but in some cases as surrogates' courts, or as orphans' courts.

3 Ibid., p. 613.

bined in one person, who is an elective official.1 In other states, however, there are separate clerks for the courts, in some instances appointed by the judges, and in others, particularly in the South and West, elected by the voters for short terms.2

An account of the judicial system would not be complete without some consideration of the prosecuting attorney.3 In most states he is an elective county officer, but in some instances he is selected for districts larger than a county. He represents the state in all criminal cases and conducts the prosecution. He makes preliminary investigations into crimes and determines whether a prosecution should be instituted. If he decides in the affirmative, he presents the case before the grand jury. If the grand jury that is, declares that the accused should returns an indictment be held for trial- the prosecuting attorney takes charge of the prosecution at the trial. In one respect, his functions are similar to those of the counsel for the plaintiff in a civil suit. Yet, in another way, he is much more than that. He should not be interested in securing a conviction at any cost. He is a quasijudicial officer and is interested in getting at the truth and doing justice. In addition to performing his functions in criminal trials, he at times also represents the county in civil cases.

The judicial system just outlined can best be illustrated by a - New York. brief survey of the courts of a single commonwealth As in other states, we find, at the bottom of the scale, the justices of the peace (elected by popular vote), who have jurisdiction over very small civil cases and over petty criminal offences. In cities, these two functions are generally divided between two sets

1

1 A clerk is chosen for each county, even in cases where several counties are grouped in one judicial district, for it is desirable for each to keep its own records.

2 There seems to be little reason for making the court clerk an elective official. His duties are generally purely ministerial and are performed under the direction of the judges, who ought to have the power of appointing and removing him. The highest court of the state has a separate clerk who is also, in some cases, an elective officer.

3 See below, p. 643.

He is known variously as prosecuting attorney, district attorney, state's attorney, attorney for the commonwealth, county attorney, and county solicitor.

5 For a discussion of the grand jury, see "Criminal Procedure," below,

p. 571.

of courts a tribunal for the trial of small civil cases, usually known as the municipal court, and that for petty criminal cases, called the police or the magistrate's court. In addition to them there are, in New York City, courts of special sessions for the trial of misdemeanors.1

On the next rung of the ladder are the county court and the surrogate's court. The county court is presided over by the county judge, and has jurisdiction over all civil cases involving $2000 or less and over all crimes except murder, which is tried in the supreme court. In New York county the civil and criminal jurisdiction of the county court is divided between two courts, the city court and the court of the general sessions.

The next higher tribunal is the supreme court. For the organization of this court the state is divided into nine judicial districts, in each of which from five to thirty justices are elected for terms of fourteen years. The court has unlimited original jurisdiction and holds terms in each county within the state. There is, in each of four departments into which the state is divided, an appellate division of the supreme court for the disposition of appeals, and for many causes the appellate division forms the highest tribunal, thus relieving the pressure on the court of last resort in the state. Supreme court judges are elected by popular vote.

At the head of the judicial system of the state stands the court of appeals, which is composed of seven judges elected by the voters for terms of fourteen years. It has only appellate jurisdiction and reviews questions of law alone, except in cases involving capital punishment. Whenever there is a great pressure of business the governor may assign supreme court justices to act as associate justices of the court of appeals.

In the great majority of the states the judges are chosen by popular vote. The judges of the lower courts are elected for short terms; those of the higher courts hold their office for a longer period of time usually varying from six to twelve years, but in a few states they are longer. Thus in New York the justices of the supreme court and the judges of the court of appeals

2

For definition of misdemeanors, see "Criminal Law," below, p. 570.
Below,
p. 643.

3 In New York county the court of general sessions has jurisdiction over murder.

are elected for fourteen years, while in Pennsylvania the term of the judges of the supreme court is twenty-one years. In general it may be said that the tendency is toward the longer term be: cause it makes the judges more independent of the politicians who happen to be in power for the moment.

There are some states that do not leave the selection of judges (especially of the higher courts) to the people. In Delaware, for example, the chancellor, chief justice, and associate judges are chosen by the governor and senate; and in New Jersey the justices of the supreme court, chancellor, judges of the court of errors and appeals, and judges of the inferior court of common pleas are likewise appointed by the governor and senate. In Massachusetts all judges are appointed by the governor with the approval of his council - a small body elected by popular vote. Other states South Carolina, Rhode Island, Vermont, and Virginia - leave the choice to the legislature. In Massachusetts, New Hampshire, and Rhode Island, the judges have life terms; but in other states the term is fixed at a number of years twelve in Delaware.

There has been considerable controversy as to which of the three methods of choosing-namely, selection by the legislature, the governor, or popular vote - is the most advantageous to the cause of justice. It is generally agreed that the first is not at all desirable; the choice is only too often made by log-rolling tactics when it is intrusted to the legislature. On the other hand, there is much to be said on the merits of the other two methods popular election and appointment by the governor. The friends of the former practice emphasize the fact that choice by the people seems to be the only democratic way of selecting important officials, for appointment by the governor renders the judges too independent of the popular will and tends to make them arbitrary. They point out also that, in the case of local judges, the people of the district are likely to know more about the qualifications of the candidates than the governor who is obliged to depend on recommendations of third parties that is, on the recommendations of a local political machine. Finally, the champions of the elective system point to the fact that on the whole it has worked successfully and that excellent judges have been obtained under it. The higher courts of states like New York which have elec2 Ibid., p. 489.

1 Readings, p. 493.

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