The Government Class Book by Andrew W. Young

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Sec.5. The _town-clerk_ keeps the records, books, and papers of the town.
He records in a book the proceedings of town meetings, the names of the
persons elected, and such other papers as are required by law to be
recorded. In some states, deeds and other conveyances are required to be
recorded by the clerks of towns.

[For a description of the duties of _assessors_ and _justices of the
peace_, see Assessment and Collection of Taxes, and Justices' Courts.]

Sec.6. For the repairing of _highways_, a town is divided by the proper
officers into as many road districts as may be judged convenient; and a
person residing in each district is chosen, called _overseer_ or
_supervisor_, or _surveyor_ of _highways_, whose duty it is to see that
the roads are repaired and kept in order in his district. In some states
a tax is laid and collected for this purpose; and each person assessed
may perform labor or furnish materials to the amount of his tax. In
other states, road taxes are assessed upon the citizens in days' labor,
according to the value of their property; every man, however, being
first assessed one day for his head, which is called a _poll-tax_.
Persons not wishing to labor, may pay an equivalent in money, which is
called _commuting_.

Sec.7. _Overseers of the poor_ provide for the support of the poor
belonging to the town who need relief, and have no near relations who
are able to support them. In some states there is in each county a
poor-house, to which the poor of the several towns are sent to be
provided for; the expense to be charged to the towns to which such poor
persons belonged.

Sec.8. The principal duties of a _constable_ are, to serve all processes
issued by justices of the peace in suits at law for collecting debts,
and for arresting persons charged with crimes. The business of a
constable in executing the orders of a justice of the peace, is similar
to that of a sheriff in relation to the county courts.

Sec.9. The town _treasurer_ receives all moneys belonging to the town, and
pays them out as they may be wanted for town-purposes; and accounts
yearly to the proper officers. The office of town treasurer does not
exist in all the states.

Sec.10. The duties of _fence-viewers_ relate chiefly to the settling of
disputes between the owners of adjoining lands concerning division
fences, the examining or viewing of fences when damage has been done by
trespassing animals; and the estimating of damages in such cases.

Sec.11. The town _sealer_ keeps correct copies of the standard of weights
and measures established by the state. Standard copies are furnished by
the state sealer to each county sealer, at the expense of the county,
and the county sealer furnishes each town sealer a copy at the expense
of the town. The town sealer compares the weights and measures brought
to him with the copy in his possession, and sees that they are made to
agree with it, and seals and marks them. A person selling by a weight or
measure that does not agree with the standard, is liable to the
purchaser for damages--generally to several times the amount of the
injury.

For a particular description of the duties of town officers, reference
must be had to the laws of the several states.

Chapter XVI.

Incorporation and Government of Cities, Villages, &c.

Sec.1. Cities and incorporated villages have governments peculiar to
themselves. Places containing a large and close population need a
different government from that of ordinary towns or townships. Many of
the laws regulating the affairs of towns thinly inhabited, are not
suited to a place where many thousand persons are closely settled.
Besides, the electors in such a place would be too numerous to meet in a
single assembly for the election of officers or the transaction of other
public business.

Sec.2. Whenever, therefore, the inhabitants of any place become so numerous
as to require a city government, they petition the legislature for a law
incorporating them into a city. The law or act of incorporation is
usually called a _charter_. The word _charter_ is from the Latin
_charta_, which means paper. The instruments of writing by which kings
or other sovereign powers granted rights and privileges to individuals
or corporations, were written on paper or parchment, and called
_charters_. In this country, it is commonly used to designate an act of
the legislature conferring privileges and powers upon cities, villages,
and other corporations.

Sec.3. The chief executive officer of a city is a _mayor_. A city is
divided into wards of convenient size, in each of which are chosen one
or more _aldermen_, (usually two,) and such other officers as are named
in the charter. The mayor and aldermen constitute the _common council_,
which is a kind of legislature, having the power to pass such laws,
(commonly called _ordinances_,) and to make such orders and regulations,
as the government of the city requires. The mayor presides in meetings
of the common council, and performs also certain judicial and other
duties. There are also elected in the several wards, assessors,
constables, collectors, and other necessary officers, whose duties in
their respective wards are similar to those of like named officers in
country towns, or townships.

Sec.4. The inhabitants of cities, however, are not wholly governed by laws
made by the common council. Most of the laws enacted by the legislature
are of general application, and have the same effect in cities as
elsewhere. Thus the laws of the state require, that taxes shall be
assessed and levied upon the property of the citizens of the state to
defray the public expenses; and the people of the cities are required to
pay their just proportion of the same; but the city authorities lay and
collect additional taxes for city purposes.

Sec.5. In cities there are also courts of justice other than those which
are established by the constitution or general laws of the state. There
is a court for the trial of persons guilty of disturbing the peace, and
of such other minor offenses as are usually punishable by imprisonment
in the county jail, called _police court_. It is held by a _police
justice_, elected by the people, or appointed in such manner as the law
prescribes. In some of the larger cities, there are courts of _civil_ as
well as criminal jurisdiction, differing from those which are common to
counties generally.

Sec.6. The government of incorporated _villages_ is not in all respects
like that of cities. The chief executive officer of such a village is,
in some states, called _president_. The village is not divided into
wards; the number of its inhabitants being too small to require such
division. Instead of a board of aldermen, there is a board of _trustees_
or _directors_, who exercise similar powers. The president of a village
is generally chosen by the trustees from their own number. In some
states, incorporated villages are called _towns_; and their chief
executive officer is called _mayor_.

Sec.7. The necessity and effect of incorporating a village may not yet
clearly appear to every reader. Let us illustrate. By a general law of
the state, or by a vote of the electors of a township in pursuance of
such law, cattle may run at large in the highways. This might be to many
persons in a village, a great annoyance, which can be prevented or
abated only by confining the cattle. Or, sidewalks may need to be made.
Or, it may be deemed necessary to provide means for extinguishing fires,
by purchasing fire-engines and organizing fire companies. In an
unincorporated village there is no power to compel the citizens to do
these things. Those, therefore, who desire that the citizens should have
power to make all needful regulations for the government of the village,
petition the legislature for an act of incorporation granting the
necessary powers.

Sec.8. The constitutions of some states require the legislature to pass a
general law prescribing the manner in which the people of any village
may form themselves into a corporation, with the necessary powers of
government, with out a special law for that purpose.

Sec.9. Besides these _territorial_ corporations for purposes of government,
as counties, towns, cities, &c., there are _incorporated companies_ for
carrying on business of various kinds, as turnpike and rail-road
companies, and companies for the purposes of banking, insurance,
manufacturing, &c. These kinds of business, to be carried on
successfully, sometimes require a larger amount of money than one man
possesses. A number of persons, therefore, unite their capital under an
act of incorporation granting them power to manage their business which
they could not have in an ordinary business partnership. Besides, a
common partnership must end on the death of any one of the partners; but
an incorporated company is not thus affected by the death of its
members.

Sec.10. It is in the nature of corporations to have a perpetual existence.
A corporation may live after the persons who first composed it are all
dead; for those who come after them have the same powers and privileges.
A town or city incorporated a hundred years ago, is the same town or
city still, although none of its first inhabitants are living. So a
railroad or banking corporation may exist after the death of many, or
even all of the original corporators.

Sec.11. But there are certain particulars in which all corporations are not
the same. A state has been defined to be a body politic, or corporation.
(Chap. I. Sec.10; III, Sec.5.) But it differs from other government
corporations, as counties, towns, cities, &c., in this: the latter are
formed by acts of the legislature; but a state is formed by the people
in their political capacity in establishing the constitution.

Sec.12. Again, all these government corporations differ from incorporated
business companies. In forming a town or city, many persons are brought
into the corporation against their wishes or consent; because, in
governments, all who live within certain prescribed bounds must come
under the same laws; but of an incorporated business association, as of
a common business partnership, none become members but by their own act
or choice. There is another difference: The latter are what are called
_stock_ companies; and although they may be continued after the death of
the first corporators, those who afterward come into the association, do
so by becoming owners of the capital stock of those who preceded them.
This latter difference will more clearly appear from the more particular
description, elsewhere given, of the incorporated companies, and of the
manner in which the stock is transferred. (Chap. XXIII, Sec.11--15.)

Chapter XVII.

Judicial Department. Justices' Courts.

Sec.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.

Sec.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. Sec.7.)

Sec.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.

Sec.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.

Sec.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.

Sec.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_.

Sec.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.

Sec.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.

Sec.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_.

Sec.10. If the parties are ready for trial, the justice proceeds to try the
issue. If the witnesses have not been subpoened and are not in
attendance, the cause is adjourned to a future day; and the justice, at
the request of either party, issues a _subpoena_, 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.

Sec.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.

Sec.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.

Chapter XVIII.

Trial by Jury; Execution; Attachment; Appeals; Arrest of Offenders.

Sec.1. The administration of justice in courts of law is not left entirely
to the justices and judges. Parties may not always have sufficient
confidence in the ability, honesty, and impartiality of the justice by
whom a suit is to be tried, to intrust their interests to his judgment.
Therefore the constitutions of all the states guaranty to every person
the right of trial by a jury. This right has been enjoyed in England
many centuries. It was established here by our ancestors, who were
principally from that country.

Sec.2. A _jury_ is a number of men qualified and selected as the law
prescribes, and sworn to try a matter of fact, and to declare the truth
on the evidence given in the case. This declaring of the truth is called
a _verdict_, which is from the Latin _verum dictum_, a true declaration
or saying. A jury in a justice's court consists in most or all of the
states, as is believed, of six men; in the higher courts, of twelve men,
who are generally required to be freeholders. The manner of selecting
the jurors is not the same in all the states.

Sec.3. After issue has been joined, and before testimony has been heard,
either party may demand that the cause be tried by a jury. Whereupon the
justice issues a _venire_, which is a writ or precept directing a
constable to summon the required number of duly qualified men to appear
before the justice, to make a jury to try the cause.

Sec.4. The testimony and arguments on both sides having been heard, the
jurors are put under the charge of the constable, who is sworn to keep
them in some convenient place, without meat or drink, except such as the
justice may order, until they shall have agreed on their verdict, or
have been discharged by the justice; and not to allow any person to
speak to them during such time, nor to speak to them himself, except by
order of the justice, unless to ask them whether they have agreed on
their verdict.

Sec.5. All the jurors must agree in a verdict; and when so agreed, they
return in charge of the constable, and, in open court, deliver their
verdict to the justice, who enters judgment according to the finding of
the jury. If the jurors, after having been out a reasonable time, do not
all agree upon a verdict, the justice may discharge them, and issue a
new venire, unless the parties consent to submit the cause to the
justice.

Sec.6. If a judgment is not paid within the time prescribed by law, the
justice issues an _execution_, which is a precept directing a constable
to collect the amount of the judgment; and authorizing him to take and
sell the goods and chattels of the debtor, and to make his returns to
the justice within the time required. _Goods_ and _chattels_ are
personal or movable property, or property other than freehold, or real
estate. If the money can not be collected, the execution is returned as
not satisfied. If a constable does not faithfully obey the directions
contained in the execution, he and his sureties become liable to pay the
judgment.

Sec.7. Laws have been passed in all the states for the benefit of poor men,
who are allowed to retain, for the use and comfort of themselves and
their families, certain articles of personal property, which may not be
sold on execution; such as necessary household furniture, apparel, beds,
tools and implements of trade, &c. The practice which formerly
prevailed, of imprisoning debtors who were unable to satisfy executions,
has been abolished, except for fines and penalties.

Sec.8. The foregoing description of the proceedings of a justice's court is
that of a prosecution in ordinary cases. But there are other modes of
prosecution in certain cases, one of which is by attachment. An
_attachment_ is a writ directing the property of a debtor to be taken,
and kept till a trial can be had, and judgment obtained. This mode of
proceeding is adopted when the plaintiff has reason to believe that a
debtor conceals himself to avoid being prosecuted by summons, or is
about to remove his property or himself from the county, or intends in
some other way to defraud his creditors.

Sec.9. In case of an absent or concealed debtor, the constable, (as is
supposed to be the common practice,) leaves a copy of the attachment,
with an inventory or list of the articles of property attached, at the
defendant's last place of abode, or, if he had none in the county, the
copy and inventory are to be left with the person in whose possession
the property is found. If the defendant does not appear on the day of
trial, the plaintiff may proceed to prove his demand and take judgment.
An execution is then issued against the property attached.

Sec.10. If either party is dissatisfied with a judgment rendered in a
justice's court, he may _appeal_ to a higher court for trial, or for a
review of the judgment. The party appealing is called _appellant_; the
adverse party is the _appellee_ or _respondent_.

Sec.11. An important part of the duties of a justice of the peace relates
to the arrest and trial of persons charged with crimes and misdemeanors.
Although they have not power to try high offenses usually called crimes,
they may order the apprehension of persons charged with such offenses,
and cause them to be committed for trial.

Sec.12. A person knowing or suspecting another to have committed an
offense, may make complaint to a judge or justice of the peace, who
examines the complainant on oath, and witnesses, if any appear; and if
he is satisfied that an offense has been committed, he issues a
_warrant_, directing the person accused to be brought before him. The
complainant and witnesses for the prosecution, and next the prisoner and
his witnesses, are examined. If the offense is one of which the
magistrate has jurisdiction, he may proceed to try the prisoner, who, it
will be recollected, is entitled to be tried by a jury.

Sec.13. If the offense is one which the magistrate has not power to try, he
binds the prosecutor or complainant and all material witnesses to appear
and testify against the prisoner at the next court having power to
indict and try him. And if the offense is one for which the prisoner may
be bailed, the magistrate takes bail for his appearance at court. If the
offense is not bailable, or if no satisfactory bail is offered, the
magistrate orders him to be committed to jail to await his trial. But,
as will be seen hereafter, he must be indicted by a grand jury before he
can be tried. (Chap. XIX., Sec.7-9.) And were there no danger of an
offender's escape before he could be brought to trial, his previous
arrest and examination might be unnecessary.

Sec.14. The obligation or bond given by a prosecutor and witnesses for
their appearance at court, is sometimes called a _recognizance_. They
bind themselves, with sureties, to forfeit and pay a certain sum of
money in case of their non-appearance. A similar bond or recognizance is
given in case of bail. The person accused binds himself, with sureties,
in such sum as the justice requires, which is to be paid if he shall not
appear for trial. The word _bail_ is from a French word meaning _to
deliver_, or _to release_. Hence, the justice _bails_, sets free, or
delivers to his sureties, the party arrested. Also the sureties are said
to bail a person when they procure his liberation.

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