Sec.7. The surveyor-general superintends the surveying of the lands belonging to the state. He keeps in his office maps of the state, describing the bounds of the counties and townships; and when disputes arise respecting the boundaries, he causes surveys to be made, if necessary, to ascertain such bounds. He performs certain other duties of a similar nature. In many of the states there is no surveyor-general, the duties of that office being done by a county surveyor in each county.
Sec.8. There is also, in many of the states, a superintendent of schools, called in some states, superintendent of public instruction, whose principal duties are described in a subsequent chapter. (Chap. XXII, Sec.10.)
Sec.9. There is also a printer to the state, or state printer, whose business it is to print the journal, bills, reports, and other papers and documents of the two houses of the legislature, and all the laws passed at each session. State printers are either chosen by the legislature, or employed by persons authorized to make contracts for the public printing; or the printing is let to the lowest bidder.
Sec.10. There are other officers employed by the state, among whom are the following: a state librarian, who has charge of the state library, consisting of books containing matter of a public nature, such as the laws of all the states, and of the United States, with a large collection of miscellaneous books; persons having the care of the public buildings and other property of the state; superintendents of state prisons, lunatic asylums, and other state institutions, whose duties are indicated by their titles, and need no particular description.
Counties ind County Officers. Powers and Duties of County Officers.
Sec.1. Some of the purposes for which a state is divided into small districts have been mentioned. (Chap. VII, Sec.1.) There are other reasons, equally important, for these territorial divisions. Laws for the whole state are made by the legislature; but certain regulations may be necessary for the people in some parts of the state which are not needed in others, and which the people of these places can better make for themselves. It is the business of the governor and his assistant executive state officers to execute or carry into effect the laws of the state; but they could not see this done in every place, or in every minute portion of the state. Again, for the convenience of those who may be obliged to go to law to obtain redress for injuries, courts of justice must be established near the residence of every citizen.
Sec.2. But in order to carry out these objects, a state must be divided into small districts with fixed boundaries, that it may be known what persons come under certain regulations, and over whom these local officers are to exercise authority. The smallest territorial divisions of a state are called townships, or towns, which contain generally from twenty-five to one hundred square miles, and which, if in a square form, would be from five to ten miles square. But for certain purposes larger districts than townships have been found necessary. These are formed by the union of several townships, and are called counties. These divisions are the same as those of England, the country from which the colonies (now states) were chiefly settled.
Sec.3. Counties in England were formerly districts governed by counts or earls; from which comes the name of county. A county was also called shire; and an officer was appointed by the count or earl to perform certain acts in the principal town in the county, which was called shire town, and the officer was called shire-reeve, or sheriff, whose powers and duties were similar to those of the sheriff of a county in this country. The shire town is that in which the court-house and other county buildings are situate, and where the principal officers of the county transact their business. In a few counties there are two towns in which the courts are held alternately. Hence each division is called a half-shire.
Sec.4. Counties and towns are bodies politic, or bodies corporate. Corporate is from the Latin, corpus, which means body. A corporation, or body politic, is an association of persons authorized by law to transact business under a common name, and as a single person. The laws of the state give such authority to the inhabitants of counties and towns. The people of a town or county have power, to some extent, to manage their own internal affairs, and to make rules and regulations for their government; and they may buy, hold, and sell property, and sue and be sued, as an individual. Similar powers are given to rail-road, banking, insurance, and other incorporated companies. But there is in some respects a difference between these corporations and those which are created for purposes of government, as states, counties, towns, cities, and villages, which will be noticed in another place. (Chap. XVI.)
Sec.5. As a county possesses various corporate powers, there must be among its officers some in whose name these powers are to be exercised. In some states there is a board of county commissioners, (usually three,) who exercise corporate powers. In a few, these powers are exercised by and in the name of the board of supervisors, which is composed of the supervisors of the several towns in the county, of whom there is one supervisor in each town. These boards, or such officers in other states as exercise these powers, have generally the power also to examine and settle the accounts against the county, and to make orders and contracts in relation to the building or repairing of the court-house, jail, and other county buildings; and to perform such other acts as the laws require.
Sec.6. There is in each county a treasurer to receive and pay out the moneys required to be collected and paid out in the county. There is also, in some states, a county auditor to examine and adjust the accounts and debts of the county, and to perform certain other duties. The business of county treasurers and auditors in their respective counties, is of the same nature as that of state auditors and treasurers. In states in which there is no county auditor, the duties of auditor are performed by the treasurer, and some other county officer or officers.
Sec.7. There is also in each county a register or recorder, who records in books provided for that purpose, all deeds, mortgages, and other instruments of writing required by law to be recorded. In New York, and perhaps in some other states, the business of a register or recorder is done by a county clerk, who is also clerk of the several courts held in the county, and of certain boards of county officers. In some states, deeds, mortgages, and other written instruments, are recorded by the town clerks of the several towns.
Sec.8. Another county officer is a sheriff, whose duty it is to attend all the courts held in the county; to execute all warrants, writs, and other process directed to him by the courts; to apprehend persons charged with crime; and to take charge of the jail and of the prisoners therein. It is his duty, also, to preserve the public peace; and he may cause all persons who break the public peace within his knowledge or view, to give bonds, with sureties, for keeping the peace, and for appearing at the next court to be held in the county, and to commit them to jail if they refuse to give such bonds. A sheriff is assisted by deputies.
Sec.9. There are in each county one or more coroners, whose principal duty is, to inquire into the cause of the death of persons who have died by violence, or suddenly, and by means unknown. Notice of the death of a person having so died is given to a coroner, who goes to the place of such dead person. A jury is summoned to attend the examination; witnesses are examined; and the jury give their opinion in writing as to the cause and manner of the death. Such inquiry is called a coroner's inquest. In one or two states, the office of coroner, it is believed, does not exist; in which case the inquest is held by a justice of the peace, or some other officer.
Sec.10. An attorney, elected or appointed for that purpose, attends all courts in which persons are tried in the county for crimes committed therein, and conducts the prosecutions in the trial of the offenders. In states where there is no attorney-general for the state, the prosecuting attorney for each county serves in this capacity, in trials in which the state is a party. As all crimes and breaches of the peace are considered as committed against the state, and prosecuted in its name, this attorney is sometimes called state's attorney.
Sec.11. In some states there is a county-surveyor, whose duties within his county are similar in their nature to those of a state surveyor-general.
Sec.12. County officers are generally elected by the people of the county. Some of them are, in some of the states, appointed by some authority prescribed by the constitution or laws of the state.
Towns and Town Officers. Powers and Duties of Town Officers.
Sec.1. The districts of territory into which counties are divided, are, in some states, called towns. In others they are called, and perhaps more properly, townships; and the name of town is given to an incorporated village, or a city. We shall, however, in this work, apply to these territorial divisions the shorter name of towns, as they are called in most of the old states.
Sec.2. The electors of the several towns meet once a year for the election of town officers, and for certain other business purposes. The electors of a town have power, at their annual town meetings, to order money to be raised for the support of the poor, for the building and repairing of bridges, and for other town purposes; to make regulations concerning fences; to fix the compensation of town officers in certain cases; and to perform such other duties as come within the usual powers of towns. The powers of towns, however, are not precisely the same in all the states.
Sec.3. Among the town officers elected at town meetings, are the following; not all of them, however, are elected in any one state: One or more persons who have the general oversight and direction of town affairs, called by some name corresponding to the nature of their duties; a town clerk; one or more assessors; justices of the peace; overseers of highways; overseers of the poor; school officers; constables; a collector of taxes; a treasurer; fence-viewers; pound-keepers, &c. In some states there are also sealers of weights and measures; persons to measure and inspect wood, lumber, bark, and other commodities.
Sec.4. The officers first mentioned in the preceding section, are, in the New England states, called selectmen, of whom there are at least three, and may in no state be more than nine, in each town. In a few states they are called trustees of townships, and are three in number. In a few other states, there is in each town one such officer, called supervisor. The powers and duties of these officers are more numerous in some states than in others. They have power to lay out roads, and lay out and alter road districts; to do certain acts relating to roads, bridges, taxes, common schools, the support of the poor, &c.; and to examine and settle all demands against the town. In some of the states, some of these duties are performed by other officers.
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.
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.)
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.
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.
Courts other than Justices' Courts; Grand and Petit Juries, &c.
Sec.1. The court next higher than a justice's court, is a court held in each county, generally called a county court, or court of common pleas. This court is usually held by a county judge elected by the electors of the county in most of the states; in some, appointed by the legislature; and in others, by the governor, with the advice and consent of the senate. In a few of the states this court consists of more than one judge. In some states, county courts are held by judges of the circuit courts.
Sec.2. In this court are tried civil causes in which are claimed sums of greater amount than a justice of the peace has jurisdiction of, and criminal causes in which are charged the lower crimes committed in the county. Also causes removed by appeal from a justice's court are tried in this court; in which cases it is said to have appellate jurisdiction. Courts are also said to have original jurisdiction; which means that suits may originate or commence in such courts.
Sec.3. There is in every state at least one court, and in most of the states there are two or more courts of higher grade than a county court. They are called in the different states by different names; as circuit court, superior court, supreme court, and court of appeals. A circuit court probably obtains its name thus: A state is divided into judicial districts, in each of which one or more judges are elected, who go around holding a court once a year or oftener in each of the counties composing a judicial district. This court usually has both original and appellate jurisdiction; it being a part of its business to try appeals from the county courts. It also tries such of the higher crimes as a county court has not the power to try. Courts in which crimes are tried are sometimes called courts of oyer and terminer.
Sec.4. Every county court, and every circuit having like jurisdiction, has a jury to try issues of fact, and a grand jury. An issue of fact is when the fact as to the indebtedness or the guilt of the party charged is to be determined from the testimony. An issue of law is one in which it is to be determined what is the law in the case, which is done by the judge instead of the jury. The jury by which issues of fact are tried, as distinguished from a grand jury, is called a petty or petit jury. It consists of twelve men, all of whom must agree in a verdict.
Sec.5. The manner of selecting grand and petit jurors is prescribed by law. A number of judicious men in each town are selected by some person or persons lawfully authorized; and the names of the men so selected are written on separate pieces of paper, and put into a box in each town, and kept by the town clerk; or as is the practice in some states, the names of the men designated as jurors in the several towns are sent to the county clerk, and by him kept in a box. Previous to the sitting of the court, the requisite number is drawn out the box; and the men whose names are drawn, are summoned to attend as jurors.
Sec.6. It is the business of a grand jury to inquire concerning crimes and misdemeanors committed in the county; and if there appear just grounds of accusation against any person, they make to the court a presentment or formal charge against him, upon which he is to be put upon trial. The number of grand jurors is not always the same. In some states there may not be more than twenty-three nor less than twelve. It is not required that they shall all agree in order to put a person upon trial.
Sec.7. On the opening of the court, the grand jurors are sworn to make a true presentment of all things given them in charge. The judge then gives them a charge, and appoints one of them foreman; and the jurors retire to a private apartment to attend to their duties. They hear all complaints brought before them against persons for crimes and breaches of the peace, and examine witnesses who appear to testify; and when it is requested, they have the assistance and advice of the state's attorney; or as he is called in some states, the district attorney, or prosecuting attorney. If they think any person complained of ought to be tried, they draw up a writing, in which they charge him with the offense of which they think him guilty. This is called an indictment. It is signed by the foreman, indorsed "a true bill," and carried by the jury into court. If the person accused has not before been arrested, he may now be arrested, and put upon trial. (See Chap. XVIII, Sec.12-14.)
Sec.8. As grand juries do not try crimes, but merely make inquiry into them, some may not readily perceive the necessity of such juries. Innocent persons might be subjected to great inconvenience and expense in defending themselves in court against the slanderous reports or false accusations of evil minded persons. It is to prevent this that grand juries are instituted, who make careful examinations into the cases brought before them, and do not often charge persons with crime unless there is a strong probability of their being found guilty on trial.
Sec.9. So important was the institution of grand juries considered, that the constitution of the United States, to which the constitutions and laws of the states must conform, was made to provide, that "no person shall be held to answer for a capital or other infamous crime, unless on a presentment or indictment of a grand jury," except in certain cases. (Con. U.S., Amend. Art. V. For the definition of "infamous crime," see Chap. VI., Sec.7.)
Sec.10. It is the opinion of many that this requirement of a previous indictment by a grand jury has reference only to the courts of the United States; and that the states may dispense with it. Hence, efforts are now making in some states to abolish grand juries. It is supposed that an examination at all times before a justice or a judge, when the prisoner can be present with his witnesses, is more likely to protect him against being unnecessarily subjected to the trouble and expense of a trial, than before a grand jury, where complaints are often made by malicious persons, and sustained by the testimony of partial or corrupt witnesses.
Sec.11. The supreme court is generally the next higher, and in most of the states, the highest state court. This court differs somewhat in the different states, both in the manner of its formation and in its jurisdiction. It is believed, however, to have, in the states generally, both original and appellate jurisdiction, civil and criminal. In the state of New York and a few other states, there is one higher court, called court of appeals, which has appellate power only. Its business is to review cases from the supreme court.
Sec.12. Suits in the county, circuit, and supreme courts, are commenced by a writ, (in some states a summons or a declaration,) which is served by the sheriff of the county in which the suit is to be tried. He also serves warrants and executions issued by these courts. A sheriff is to these courts what a constable is to a justice's court. His powers and duties have been elsewhere described. (Chap. XIV., Sec.8.)
Chancery or Equity Courts; Probate Courts; Court of Impeachment.
Sec.1. It might be supposed, that in instituting the courts which have been described, all necessary provision had been made for securing justice to the citizens. But many cases arise in which justice and equity can not be obtained in these courts. To afford relief in such cases, a court has been established called a court of equity, or court of chancery. What often renders it impossible to get justice in ordinary courts of law, is the want of witnesses; but in a court of equity the parties may themselves be put on oath.
Sec.2. A debtor, to avoid the payment of his debts, may conceal his property or his money; but this court may compel him to disclose and give up the same to satisfy an execution; and it may prevent persons indebted to him from making payment to him. A person refusing to fulfill a contract may, in courts of common law, only be sued for damage; but this court may in certain cases compel him to fulfill the contract itself. It may also restrain individuals and corporations from committing fraudulent acts, and prevent persons from committing wastes on land and certain other injuries, until the right at law can be tried.
Sec.3. Courts of chancery were established, it is believed, in a majority of the old states. But separate and distinct organizations called chancery courts, now exist in but a few states; the power to try suits in equity having been given to the judges of the common law courts.
Sec.4. Suits in equity are not commenced as suits at law. The plaintiff prepares a bill of complaint, the facts stated in which are sworn to by himself. The bill, which contains a petition or prayer that the defendant may be summoned to make answer on oath, is filed with the clerk of the court, who issues a subpoena commanding the defendant to appear before the court on a day named. A trial may be had on the complaint and answer alone; or witnesses may be introduced by the parties. The case is argued by counsel, and a decree is pronounced by the court, which the court has power to carry into effect.
Sec.5. There is another kind of courts which are in their nature different from ordinary law courts, and are called probate courts. There is in every county a probate court held by a judge of probate, whose duties relate to the proving of wills and the settling of the estates of persons deceased. A will is a writing in which a person gives directions concerning the disposal of his property after his death. The Latin word probatus means proof; from which probate has come to be applied to the proving of a will. (See Wills and Testaments.) In the state of New York the judge of this court is called surrogate, and the court is called surrogate's court.
Sec.6. There is still another court in every state, which is not a common law court. It is the court of impeachment. The name is applied to the senate when sitting on a trial of impeachment. An impeachment is a charge or accusation against a public officer for corrupt conduct in his office; as if a governor, for money offered him, should approve and sign a law; or a judge should, for money or from some other selfish or personal motive, give a wrong judgment. The constitution gives to the house of representatives the power to impeach, and to the senate the power to try the persons impeached. This practice has come from Great Britain, where the impeachment is made by the house of commons, and the house of lords is the high court of impeachment.
Sec.7. The house of representatives, in a case of impeachment, acts in nearly the same manner as a grand jury in a court of law. A complaint is made to the house; and if, upon examination, there appear to a majority of the members present sufficient grounds for the charge, an accusation in writing is prepared, called articles of impeachment, and delivered to the senate. In some states, a majority of the members elected is necessary to impeach. The president of the senate orders the court to be summoned. The accused is brought before the court to answer to the charge, and has counsel assigned him. The senators are sworn truly to try and determine the impeachment according to evidence; and a day is fixed for trial.
Sec.8. The house of representatives usually choose from their number a committee of managers to conduct the trial, the proceedings in which are the same as in law courts. The senators retire and deliberate as jurors in such courts. Two-thirds of the senators—in some states two-thirds of all the senators elected—must concur in order to convict the person accused. If a person is convicted, the court may remove him from office, or disqualify him to hold any office in the state, for a time, or for life; or may both remove and disqualify him. This court can pronounce no other sentence. But if the act committed is a crime, the offender may also be indicted, tried, and punished in a court of justice.
Sec.9. Judicial officers may also be removed by the governor on address of the legislature. If a judge is suspected of corrupt conduct in his office, or of being incompetent to discharge its duties, complaint is made to the legislature, and the party complained of is notified, and an opportunity is given him of being heard in his defense. If both branches, by the required majorities, concur in the opinion that he ought to be removed, they address the governor, setting forth their reasons for the removal. If the governor considers the reasons sufficient, the officer is removed. This mode of removal does not exist in all the states. In New York, and perhaps in a few other states, the legislature makes the removal without the concurrence of the governor; and in that state some of the lower judicial officers may be removed by the senate on the recommendation of the governor. In a few states, judges are not removable by impeachment.
Assessment and Collection of Taxes.
Sec.1. Every government must have the power of providing means for its support. The money which is needed to pay the expenses of administering the government, if the state has no permanent source of revenue, or income, must be raised by taxation. A tax is a rate or sum of money assessed upon the person or property of a citizen for the use of the state. When assessed upon the person, it is called a poll-tax, or capitation tax, being a certain sum on every poll, or head. But as persons ought generally to contribute to the public expenses according to their ability, taxes are more just and equal when laid upon the property of the citizens. Few poll-taxes are levied in this country.
Sec.2. There are certain kinds of property which are exempt from taxation; such as the corporate property of the state, of counties, and of towns, including the buildings in which the public business is done, the prisons, jails, asylums, &c., and the lands attached to them; school-houses and meeting-houses, with the lands attached; burying-grounds, and the property of literary and charitable institutions. But the property of business corporations, as rail-road, banking, insurance, manufacturing, and other stock companies, like that of individuals, is liable to taxation. Real estate, or real property, is land with the buildings and other articles erected or growing thereon. Personal estate, or personal property, consists of movables, as goods, chattels, money, and debts due from solvent debtors.
Sec.3. As the property of every person is to be assessed in proportion to its value, it is necessary, first, to make a correct valuation of all the taxable property. For this purpose, the assessor or assessors pass through the town, and make a list of the names of all the taxable inhabitants, and the estimated value of the property, real and personal, of each; and returns of the same are made to the proper county officers, who cause the tax-list for each town to be made out, and order the taxes to be collected.
Sec.4. In some states, persons liable to taxation are themselves required to furnish lists of all their taxable property, printed blank lists having been previously distributed among them for this purpose. To secure an accurate valuation, the assessors, (called also listers,) may require persons to make oath that they have made a true statement of their property and its value. In states where the polls of the tax-payers are assessed, these also are set down in the lists at such sums as the law directs to be affixed to each poll.
Sec.5. Before a tax-list can be made out, it must be known what amount is to be collected in each town. This amount is made up of three parts: First, the sum wanted to pay the expenses of the town for the preceding year; secondly, the town's share of the county expenses; and thirdly, its proportional share of the expenses of the state government, or of what is to be raised for state purposes.
Sec.6. The apportionment of the amount of the state and county expenses among the several towns, is made according to the amount of property in each as valued by the assessors. The state auditor or controller, having received from the several counties returns of the value of the property in each county, is enabled to determine its quota of the amount to be raised for state purposes. To each county's share of the state expenses is added the sum to be raised in the county for county purposes; and the amount is apportioned among the towns in proportion to the value of the assessed property of each. Then adding to each town's share of the amount of the state and county expenses, the amount to be raised for town purposes, gives the sum to be collected in the town.
Sec.7. Having thus ascertained the sum to be raised in each town, the officers whose duty it is, cause a tax-list to be made out, in which the amount of each person's tax is set opposite his name and the estimated value of his property. The tax-list of each town, certified and signed by the proper persons, is put into the hands of the collector, with a warrant ordering the same to be collected.
Sec.8. The money collected for county and state purposes is paid to the county treasurer, who pays to the state treasurer the amount raised in the county for state expenses, and retains the remainder to be expended in the county. The money collected for town purposes is paid to such persons in the town as are by law authorized to receive the same.
Education. School Funds; Schools, &c.
Sec.1. The proper object of government is to promote the welfare and happiness of its citizens. For this purpose, it must provide for making and properly administering laws to protect the people in the enjoyment of life and the fruits of their labor. But it should go further, and make express provision for improving the condition of the people, especially the less fortunate portions of them.
Sec.2. The prosperity of a state or nation depends essentially upon the education of its citizens. This is seen by comparing the condition of the people of this country with the condition of the people of those countries where the benefits of education are not enjoyed. Ignorance tends to make men idle, vicious, and miserable. On the other hand, learning is not only a means of enjoyment in itself, but of improving the social condition of a people.
Sec.3. Again, a free government is better adapted than any other to promote the welfare of a nation. But if the people are not properly educated, they are incapable of self-government. And as many persons are unable to pay for the tuition of their children, the safety of the government itself requires the establishment of a system of education, by which the great body of the people may be fitted to discharge their social and political duties. The states have accordingly instituted school systems for the instruction of children and youth of all classes at the public expense.
Sec.4. In most of the states, the schools are supported only in part, in a few of them wholly, at the expense of the states. Some states have provided funds, the income of which is annually applied to this object. Fund generally signifies the money or capital stock employed in carrying on trade or any other business operation. State funds are the moneys and other property of the state which are set apart for paying the expenses of the government, or for the construction of canals, roads, and other public improvements. The interest of these funds, and the income from other sources, are called the revenue.
Sec.5. In some states, school funds are created by appropriating the public lands, which are lands owned by the state as a body corporate. The proceeds of these lands, from sales or rents, constitute a part or the whole of the school fund, the interest of which is annually applied to the support of schools. If the income from the school fund is insufficient for this purpose, the deficiency may, as is done in some states, be supplied, in whole or in part, by taxation, or from the state treasury.
Sec.6. Many of the new states have large school funds. At an early period, while most of the territory from which these states have been formed was yet the property of the United States, and uninhabited, Congress passed an act by which a particular section of land (number sixteen) in every township is reserved for the support of schools therein. By this act, one thirty-sixth part of the lands within each of these states has been thus appropriated, besides smaller portions granted for the benefit of a university in each state. These lands are in the charge of proper officers, who dispose of them, and apply the proceeds as the law directs.
Sec.7. The school funds of many of the states have been largely increased by certain moneys received from the United States. In 1837, there had accumulated in the national treasury about thirty millions of dollars over and above what was needed for the support of the government. By an act of congress, this surplus revenue was distributed among the states then existing, to be kept by them until called for by congress. Although congress reserved the right to recall the money, it was presumed that it would never be demanded. That it never will be, is now almost certain. Many of the states have appropriated large portions of their respective shares for school purposes. From its having been said to be only deposited with the states, this fund is sometimes called the United States deposit fund.
Sec.8. School moneys coming from the state treasury, or state fund, are usually apportioned among the several towns of the state; and each town's share of such moneys, together with what may come to the town by taxation or from its school lands, is divided among the several districts according to the number of children between certain ages in each district, or in such other manner as may be directed by law. If the moneys thus received are insufficient to pay the wages of teachers, a rate bill is made out in each district for the deficiency, and collected from the persons whose children have been taught in the schools.
Sec.9. The towns, or townships, are divided into districts of suitable size for schools, which are called district schools. From their being supported by a common fund, and designed for the common benefit, or from the lower or more common branches being taught in them, they are also called common schools. One or more trustees or directors are chosen in each district to manage its affairs; a clerk to notify meetings and record the proceedings of the same; and a collector to collect taxes for building and repairing school-houses, and all rate bills for the payment of teachers.
Sec.10. The highest school officer is the state superintendent of common schools, or, as he is sometimes called, superintendent of public instruction. The superintendent collects information relating to the schools; the number of children residing in each district, and the number taught; the amount paid for tuition; the number of school-houses, and the amount yearly expended in erecting school-houses; and other matters concerning the operation and effects of the common school system. If there is no other officer whose duty it is, the superintendent also apportions the money arising from the state funds among the several counties. He reports to the legislature at every session the information he has collected, and suggests such improvements in the school system as he thinks ought to be made.
Sec.11. There is in every county an officer who receives from the state superintendent the money apportioned to the county, and apportions the same among the towns; reports to the state superintendent the number of children in the county; and performs such other duties as the law requires. In some states, there is no such county officer; but the money is apportioned by the state superintendent among the towns; and the reports from the towns are made directly to the state superintendent.
Sec.12. In the towns are officers whose duties are to examine teachers, visit schools, apportion the school moneys among the districts, and to collect the lists of the number of children in the several districts, with such other information as the law requires, and report the same to the county officer, or, if there is none, to the state superintendent. In some states, there is in each county an officer or a board of officers, for examining teachers, and performing certain other duties relating to the schools of the county.
Sec.13. Academies and colleges also receive aid from the state, to a limited extent. A distinct fund is created in some states for their benefit; in others, they are aided by special appropriations from the state treasury.
Canals and Rail-Roads.
Sec.1. In carrying out the purposes of government, provision ought also to be made to secure to the people the means of obtaining a suitable reward for their industry, and to render the labor of all, as nearly as may be, equally profitable.
Sec.2. The people of some states do not possess the same advantage as those of others; nor do all the people of the same state enjoy equal advantages. Those who reside at a great distance from market, or from navigable waters and good roads, are not so well rewarded for their labor as those who reside near them, because of the greater cost of the transportation, both of what they have to sell, and of the goods they buy. Hence the necessity of good roads, canals, or other means of facilitating trade between the different parts of the state.
Sec.3. Among the works intended to effect this object, canals are perhaps the most useful, and are to be preferred wherever their construction is practicable. Canals are sometimes constructed by incorporated companies; but generally these works, especially those of great magnitude, are made by the state, and are the property of the state. Although there are some states in which are no canals of this kind, it may be interesting to young persons generally to know how so important a state work is made.
Sec.4. To raise the money necessary to make a canal, the legislature might levy a general tax upon the property of the citizens. But this would not be expedient or just; because, first, the payment of so large a sum by the people within the time in which it would be desirable to complete the work, would be inconvenient and burdensome; and secondly, the expense must fall alike upon the people of all parts of the state: whereas, those residing most remotely from the line of the work, would derive from it little or no benefit.
Sec.5. When, therefore, a great enterprise of this kind is undertaken by a state, the law authorizing the work usually provides a fund, the income of which is to be applied to this object. This fund consists of such lands, property, and moneys as the legislature may grant for this purpose. Funds were thus constituted in some of the western states, to which funds congress made grants of the public lands of the United States lying within those states.
Sec.6. These funds, however, furnish but a part, some of them but a small portion of the money necessary to complete the work; and some states undertaking public improvements may not have the lands or other property to constitute such a fund. The state therefore borrows the money for a long term of years, and depends upon the income of the canal fund and the tolls to be collected on the canals, for the repayment of the money borrowed. Should the revenues of the canal and of the canal fund be insufficient, the deficiency may be supplied by taxation.
Sec.7. The business of borrowing the money is done on the part of the state, by persons duly authorized, who give for the money borrowed the bonds of the state, which are written promises to pay the money at the times specified, with interest at the rate agreed on; the interest generally to be paid semi-annually. These bonds are usually given in sums of $1,000 each, or less. The debts of a state thus contracted by issuing bonds, are called state stocks, as the capital, or stock required to construct a state work is obtained by the sale of its bonds. These bonds, like the certificates of stock in a rail-road or other corporate business company, are transferable, and may be bought and sold as promissory notes, and constitute an important article of trade.
Sec.8. These stocks are taken by men who have large sums of money to lend, and who consider the state a responsible debtor; because, if it has no other sufficient means of paying its bonds, the legislature has power to raise the money by taxation. Most of the states have contracted debts in this manner for various purposes. State stocks are purchased and held not only by capitalists in this country, but by many in Europe.
Sec.9. Officers are appointed to manage the canal fund, and others to superintend the canals. There are also officers, called canal collectors, at suitable distances along the canals, to collect the tolls, which are charges paid by the masters or owners of boats for the use of the canal.
Sec.10. The states of New York, Pennsylvania, Ohio, and some other western states, have prosecuted the canal enterprise on a large scale. Although large debts have been contracted for the construction of canals in these states, the benefits derived from them more than compensate for the vast expense of their construction.
Sec.11. Rail-roads, although they are of public utility, are not properly public works, being constructed by companies incorporated for that purpose. The necessity for an act of incorporation is readily seen. Rail-roads pass through the lands of private individuals; and without the authority of law, the land of no person can be taken for such purpose; nor can a law authorize it to be taken, unless the work is one of general advantage; nor even in such case, without compensation to the owner for his land; for it is declared by the state constitutions, that "private property shall not be taken for public use without just compensation."
Sec.12. If, therefore, the legislature deem a proposed railroad to be of public utility, they pass an act to incorporate a company with the requisite powers to construct the road, on making compensation for the land, the value of which is to be estimated in such manner as the law prescribes. The law also prescribes the manner in which the affairs of the road are to be conducted.
Sec.13. The amount of capital to be employed by the company, is mentioned in the act of incorporation, or charter, and is raised in this way: The amount of the capital, or stock, is divided into shares of $100, or less. Persons wishing to invest money in the road, subscribe the number of shares they will respectively take. When all the shares are thus sold and the money is paid in, the company is ready to proceed to the construction of the road. The owners of these shares are called stockholders, who choose from among themselves such number of directors as the charter authorizes. The directors elect from their number a president.
Sec.14. Persons buying shares receive certificates signed by the proper officers, stating the number of shares for which each certificate is given. The holders of these certificates, if they wish to make other use of the money they have invested in the business, may sell their stock to others, to whom they pass their certificates, which are evidence of the amount of stock purchased. Thus these certificates are bought and sold as promissory notes.
Sec.15. Stockholders depend, for the reimbursement of their capital, upon the money to be received for the transportation of passengers and freight. Such portion of the income of the road as remains after paying all expenses of running and repairs, is divided semi-annually among the stockholders. Hence the sums thus divided are called dividends. The earnings of some roads are so large as to make the investment a profitable one; so that the holder of shares is enabled to sell them at an advance. When shares in the stock of any institution are sold at their nominal value, the price named in the certificates, the stock is said to be at par. When they are sold for more or less than their nominal value, they are said to be above or below par. In large commercial cities, as New York, Boston, Philadelphia, and others, the purchase and sale of state stocks, and stocks in rail-roads, banks, &c., is a regular and extensive business of capitalists.
Banks and Insurance Companies.
Sec.1. Banks, we are told, were first instituted in Italy, where certain Jews assembled, seated on benches, ready to lend money, and to exchange money and bills; and banco being the Italian name for bench, banks took their title from this word. The first banks are said to have been only places where money was laid up or deposited for safe-keeping. But banks at the present day are not used for depositing alone.
Sec.2. Banks in this country can be established only by authority of law. They are incorporated by an act of the legislature. The capital stock is raised by the sale of shares, and issue of certificates, as in the case of rail-roads. (Chap. XXIII., Sec.13.) The stockholders elect of their number (usually) thirteen directors, who choose one of themselves as president. The president and directors choose a cashier and clerks.
Sec.3. Merchants and others in commercial places, deposit in banks, for safe-keeping, the money they receive in the course of business, and then draw it out on their written orders as they have occasion to use it. An order of this kind is called a check.
Sec.4. Persons depositing money only once, or very seldom, and intending to draw for the same at once, usually receive from the cashier a certificate of deposit, which states the name of the depositor, the sum deposited, and to whose order it is to be paid. For the use of money deposited for any considerable period, banks agree to pay interest, usually less, however, than the rate established by law. Certificates of deposit may, by indorsement, be made transferable as promissory notes and other negotiable paper, (Chap. LX., Sec.2,) and are often remitted, instead of money, to distant places, where, by presenting them at a bank, they may, for a trifling compensation, be converted into money.
Sec.5. A material part of the business of banks is to assist merchants and others in transmitting money to distant places. Thus: A, in New York, wishing to send $1,000 to B, in Philadelphia, puts the money into a bank in New York, takes for it an order, called draft, on a bank in Philadelphia, for that amount, to be paid to B. The draft is sent by mail to B, who presents his draft at the bank, and receives the money; and the bank charges the amount to the New York bank.
Sec.6. But persons unacquainted with commercial business, especially young persons, may not know how the bank in Philadelphia is to be repaid. In the course of trade between the two cities, business men are constantly remitting money both ways through the banks, which thus receive the money and draw upon each other. Thus millions of dollars may be annually transmitted between the two cities, without any expense except the small charge of the banks for doing the business, and without the risk of loss by accident or robbery which attends the conveyance of money in person.
Sec.7. Banks also lend money. The borrower gives a note for the sum wanted, signed by himself, and indorsed by one or more others as sureties. The cashier pays the money for the note, retaining out of it the interest on the sum lent, instead of waiting for it until the note becomes due. This is called discounting a note.
Sec.8. The bills of banks pass as money. A bank bill or note is a promise of the bank to pay the bearer a certain sum on demand, signed by the president and cashier. It passes as money, because the bank is bound to pay it in specie if it is demanded. Paying notes thus is redeeming them. When a bank is unable to redeem all its bills, it is said to have failed, or to be broken; and the bill holders suffer loss, unless some security has been provided. This has been done in some states by making the stockholders individually liable for the redemption of the bills; that is, the property owned by them as individuals may be taken and sold on execution for that purpose. Such security, however, has never been generally provided.
Sec.9. But a system of banking, sometimes called free banking, has more recently been adopted in some states. It is so called, because the business of banking is thrown open to all by a general law. Any person, or any number of persons, may, by complying with the provisions of this general law, establish a bank without a special law for this purpose. Hence it is also called the general banking system.
Sec.10. Persons, before commencing business under this law, must put into the hands of the proper state officers ample securities for the redemption of their bills; and they may not issue bills to a greater amount than the amount of their securities. These securities must consist of approved state stocks, or United States stocks, or partly of public stocks, and partly of real estate. When a bank fails, the lands and stocks held in pledge by the state are sold, and the avails are applied to the redemption of the bills. This system of banking seems to be growing into public favor.
Sec.11. Insurance companies also are authorized by law. Their business is to insure persons against loss by fire. The corporators, on being paid a small sum, consisting generally of a certain percentage on the amount for which the property is insured, promise to pay such amount if the property shall be destroyed by fire. There are companies also for insuring vessels at sea; and life insurance companies, that agree to pay, in case of the death of the person insured, a certain sum for the benefit of his family, or of some other person named in the policy. The word policy as here used, means the writing containing the terms or conditions on which the company agrees to indemnify the person insured in case of loss. The money paid to obtain insurance, is called premium.
Sec.12. The profits of the stockholders consist of the excess of money received for premiums over the amount paid out for losses. Thus, if a company has issued 2,000 policies, each covering property of an average amount of $1,000, the amount of risk is $2,000,000; and if the rate of insurance is one per cent., the amount received in premiums is $20,000. Hence, if none of the 2,000 buildings is burned within the time the insurance is to run, the $20,000 are gained. If ten of them should be burned, there would still be a gain of $10,000. If twenty should be destroyed, there would be no gain, but an actual loss to the amount of the expenses of the concern.
Sec.13. But from the average number and amount of losses annually for many years, companies are enabled so to fix the rates of insurance as to give the stockholders a fair profit on their capital. The rates are not the same on all kinds of property; a higher per centage is charged on that which is deemed hazardous, or more exposed to fire, than on that which is less exposed. The profits on the business of the company, or the dividends, as they are called, are annually or semi-annually divided among the stockholders, in proportion to the amount of their respective shares.
Sec.14. There is another kind of insurance companies, which differ materially from the stock companies described in the preceding sections. They are mutual insurance companies. They are so called because the members unite in insuring each other. Every person having his property insured by such a company is a member of it. He has his buildings and the property in them valued; and pays a certain rate per cent. on such valuation. A fund is thus raised out of which any member suffering loss by fire is paid the amount for which the property was insured. When the fund is exhausted, it is again supplied by a tax assessed upon the members in proportion to the amounts for which they are respectively insured.
Sec.1. It is the practice of governments to keep their respective countries prepared to defend themselves against foreign enemies. For this purpose all men liable to do military duty are enrolled, and are required to meet on certain days every year for instruction in the art of war, in order to be ready for actual service whenever it shall be required. The body of soldiers thus enrolled are called the militia. There are other words which are sometimes applied to bodies of soldiers; as infantry, which means the soldiers or troops who serve on foot; cavalry, the troops on horses; artillery, those who manage the cannon and other heavy weapons of war. But all troops are comprehended in the general term, militia.
Sec.2. The militia of a state, or a portion of them, may also be needed to aid in executing the laws of the state, and in suppressing insurrection or rebellion. An insurrection is a rising against the public authority, or the attempt of persons to prevent the execution of a law. Rebellion generally means nearly the same as insurrection; but more properly it signifies a revolt, or an attempt to overthrow the government to establish a different one. As it is the duty of an executive to see the laws executed, power is given by the constitution to the governor to call out a sufficient military force for this purpose.
Sec.3. All able-bodied white male citizens of the United States, between the ages of eighteen and forty-five years, are liable to perform military service in the states in which they reside, except such as are exempt by the laws of the states and of the United States. Persons exempt by the laws of the states are generally the following: Ministers of the gospel; commissioned officers of the militia having served a certain number of years; members of uniformed companies having served for a specified time; members of fire companies; certain public officers while in office; and in some states teachers and students of colleges, academies, and common schools; and a few others.
Sec.4. Persons exempt by the laws of the United States are the vice-president, the subordinate executive and all the judicial officers of the government of the United States; members of congress and its officers; custom-house officers and their clerks; post-officers and drivers of mail stages; ferrymen employed at ferries on post-roads; pilots and mariners.
Sec.5. By the constitutions of the several states, the governors are made the commanders-in-chief of the militia of their respective states; and by the constitution of the United States, the president is made commander-in-chief of the army and navy of the United States, and also of the militia of the states when called out into actual service. It has already been remarked, (Sec.2,) that the military force of the state is at the command of the executive to protect the government and its citizens. So the president was thought the proper person to have command of the public forces, to execute the laws of the United States, to repel invasion, and to carry on war. Hence the governors and the president are not among the public officers who are exempt from military duty.
Sec.6. Persons who, having been duly notified, refuse to appear at military parades, or, appearing without being equipped as the law directs, are tried by a military court, called court martial, consisting usually of three military officers, or of such other persons as may be appointed according to the law of the state. If the persons tried do not show good cause for their delinquency, they are fined in such sums as the law prescribes. In certain cases courts may consist of more than three members.
Sec.7. The highest militia officer, except the governor, is the adjutant-general of the state; who keeps a list of all the higher commissioned officers, containing the dates of their commissions, their rank, the corps (pronounced core) they belong to, the division, brigade, and regiment, and their places of residence. He distributes all orders from the commander-in-chief (the governor,) to the several divisions; attends public reviews where the commander-in-chief reviews the militia; and obeys all orders from him relative to carrying into execution the system of military discipline established by law.
Sec.8. There is also in some states a commissary-general, who has the care of the arsenals and magazines, and the articles deposited in them. An arsenal is a building in which are kept cannon, muskets, powder, balls, and other warlike stores; all of which are to be kept in repair and ready for use.
Sec.9. There are persons who, believing all wars to be wrong, can not conscientiously do military service. As it is the object of our government to secure to every person the liberty of conscience as well as other rights, the constitutions of many of the states provide, that those who are averse to bearing arms, may be excused by paying annually a sum of money instead of rendering the service. But it may well be doubted whether compelling a man to pay the money is not itself a violation of the right of conscience. Many persons conceive it to be no less morally wrong to commute for the service than to perform it. In some states, all persons belonging to the society of Friends, usually called Quakers, are exempt without the payment of an equivalent in money.
Sec.10. In the states of New York and Ohio, the rank and file of the militia are not required to train in time of peace. Persons liable to perform military service, except those connected with the uniformed companies, are enrolled in the militia; but instead of doing duty, they pay annually a small tax, which is in New York fifty cents, and in Ohio fifty cents, or a day's highway labor.
Sec.11. Laws abolishing trainings and musters of the great body of the militia, are, it is believed, growing into favor, and for these among other reasons: First, the militia system produces no material improvement in discipline; secondly, the expenditure of time and money in these useless exercises, and for arms and equipments, are burdensome to many citizens; and thirdly, there is no probability of an occasion requiring a large portion of the militia to be so suddenly called into service as to allow no time for preparation. Volunteer companies like those kept up and disciplined in the states above named, and the standing army of the nation, are deemed sufficient for any supposable emergency.
Sec.12. Happily the practice of settling disputes between nations by war, is becoming less popular in civilized and Christian communities. War is a dreadful evil, and ought to be discouraged, and, if possible, avoided. Were governments so disposed, they might in most cases settle their differences as individuals do, by submitting them to the judgment of a third party. If the love of military honor were less encouraged, and the principles of peace duly inculcated, the time would be hastened when "nations shall learn war no more."
Government of the United States.
Causes of the Revolution.
Sec.1. The plan of government in this country is peculiar. To a person previously unacquainted with our political institutions, it might seem strange, after having read the foregoing description of the state governments, to be told that there is still another and a different government to which the people are subject. How the people of more than thirty states, all having complete and distinct governments, can at the same time be subject to another government, also complete in all its parts, he would not immediately understand. He would not know what is meant by the government of the United States. How the states, all having governments of their own, can be united in one government, he would not readily perceive.
Sec.2. We shall therefore proceed to a description of the government of the United States, from which will appear the relation between that government and the state governments. It will also appear that the state governments, each of which has in itself a great deal of machinery, all move in harmony with the great political machine—the government of the United States. It is easy to see that a knowledge of these governments is important to the people who live under them, as every freeman exercises a part of the governing power, both in the government of his own state, and in the general government.
Sec.3. To assist the reader in understanding the constitution and government of the United States, we shall first give a sketch of the governments which preceded, and of the principal causes which led to the revolution in the government of this country. Most of the youth who are of sufficient age to study this work, probably know that our present forms of government were not established by the early settlers in this country. The first inhabitants were colonists. A colony is a settlement of persons in a distant place or country, who remain subject to the government of the state or country from which they removed. The American colonies which have become the "United States," were chiefly settled from Great Britain, and were under her jurisdiction.
Sec.4. The political rights and privileges enjoyed by the colonists as British subjects, were very limited, and were conferred by the charters of the king. The people had not then, as now, constitutions of their own choice. There were colonial governments; but they were such as the king was pleased to establish, and might be changed at his pleasure. These governments were in form somewhat similar to that of our state governments. There was what might be called a legislature; also an executive or governor; and there were judges.
Sec.5. But of the officers of these departments of the government, only the members of one branch of the law-making power were elected by the people. The other branch was composed of a small number of men, called a council; but they were appointed by the king and subject to his control, as was also the governor, who had the power of an absolute negative or veto to any proposed law. And laws after having received the assent of the governor, must be sent to England and approved by the king, before they could go into effect.
Sec.6. Hence we see that the colonists had no security for the passage of such laws as they wanted. And the consequence was, that they were often denied good and wholesome laws, by the refusal of the king to sanction them. Not only so; many laws enacted by parliament were very unjust and oppressive. The object of these laws was to secure to Great Britain alone the trade of the colonies. One law declared that no goods should be imported by the colonists but in English vessels; if brought in other vessels, both the goods and vessels were to be forfeited to the British government.
Sec.7. Another law required such articles as England wanted, to be transported to that country and other countries belonging to Great Britain. The colonists were permitted to ship to foreign markets such products only as English merchants did not want. They were prohibited from selling abroad any wool, yarn, or woolen manufactured goods. This was done to keep the markets open for British wool and manufactures. Another law declared that no iron wares of any kind should be manufactured here. Thus was it attempted to suppress manufactures in the colonies.
Sec.8. Hence we see that it was the policy of the British government to compel the colonists to buy of England all the goods they wanted which they did not themselves produce, and to sell to England the surplus productions of the colonies. For this purpose, heavy duties were laid upon goods imported into the colonies from other countries than Great Britain and her possessions. These duties were taxes levied upon goods brought into the colonies from abroad, and were collected by officers here from the persons importing the goods.
Sec.9. The following facts will explain to the young reader more clearly the nature and effects of these duties: The colonists traded with the West India islands, some of which belonged to Great Britain, some to France, and some to Spain. To secure the whole trade, the British government imposed high duties upon the molasses, sugar and other articles imported into the colonies from the French and Spanish islands. The people of the colonies could therefore avoid the payment of these duties only by importing the above mentioned goods from the British islands.
Sec.10. Not satisfied with these acts, parliament claimed the right to tax the colonies, "in all cases whatsoever;" and an act was passed accordingly, laying duties upon all tea, glass, paper, &c., imported into the colonies; and the money thus collected was put into the British treasury. The colonists petitioned the king and parliament to repeal these obnoxious laws; but their petitions were denied. Having given up all hope of relief, congress, which was a body of delegates from the several colonies, declared the colonies to be free and independent states, no longer subject to the government of Great Britain. This declaration was maintained by a war which lasted about seven years, when Great Britain gave up the contest, and acknowledged the independence of the states; and the revolution was accomplished.