is produced before the court, and upon this the judges give judgment, as the right of the case may appear. If they decide the judgment of the lower court to be correct, they are said to affirm such judgment; but if they find it wrong, they reverse it.

CHAPTER XXVII.

COURTS OTHER THAN JUSTICES' COURTS.

In

§ 1. THERE is in every county a court, called county court, or court of common pleas, consisting of one or more judges, elected by the people of the county, in most of the states, in others, appointed either by the legislature, or by the governor, with the advice and consent of the senate. this court are tried civil causes in which are claimed sums of greater amount than a justice of the peace has jurisdiction of, and the lower crimes committed in the county. Also causes removed by appeal or otherwise from a justice's court, are tried in this court.

2. There are other courts having different names and jurisdiction in different states; as circuit court, superior court, supreme court, and court of appeals. A circuit court seems to derive its name thus: A state is divided into judicial districts, and one of the judges of the supreme court or some other judge or judges, go from county to county, holding a court once a year, or oftener, in each of the counties composing a judicial district. A part of the business of this court is to try appeals from the county court, and 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.

3. Every county court, and every circuit court having similar 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. It is so called to distinguish it from an issue of law, in which the law in the case is to be determined, which is done by the court instead of a jury. This jury is usually called a petit jury, as distinguished from a grand jury.

161762

§ 4. It is one of the excellencies of our government, that the liberty and lives of the people, as well as their property, are protected by a constitutional provision, securing to every person the right to be tried by a jury of his equals. As liberty and life are more valuable than property, they ought to be most carefully guarded. Hence the constitution of the United States, and the constitutions of the several states, declare that no person shall be put upon trial for a capital or other infamous crime, without the previous judgment of a grand jury that he ought to be tried.

§ 5. The manner of selecting and drawing grand and petit jurors, is prescribed by law. A number of judicious men in each town are selected by some person or persons authorized by law to do so, whose names 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 persons 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 each court, the requisite number is drawn out of the box, and the persons whose names are thus drawn, are summoned to attend as jurors.

§ 6. A jury to try a cause in these courts consists of twelve men; and all must agree in a verdict. The number of grand jurors is not the same in all the states; nor is it required that a grand jury shall always consist of a definite number of men; nor that their judgment shall be unanimous, in order to put a person upon trial.

§ 7. On the opening of the court, the 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 their number as 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. 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, endorsed, "a true bill," and carried by the jury into court.

§ 8. If the person has not before been arrested, he may

now be arrested, to be put upon trial. As all crimes are considered as committed against the peace and order of the community, the offender is complained of and tried in the name and in behalf of the people of the state, who are the prosecuting party. The prosecution is managed by the prosecuting attorney for the county, whose appointment and general duties have been mentioned. (Chapter XVII, § 11.)

§ 9. The supreme court is the next higher, and in most states, the highest state court. This court differs somewhat in the different states, both in its structure and its jurisdiction. It is believed, however, that, in most or all of the states, it has both original and appellate jurisdiction, civil and criminal. By original jurisdiction is meant, that a suit may originate or commence in this court, or that it has the power to try a suit in the first instance. By appellate jurisdiction is meant the right to adjudge cases brought before it by appeal from other courts. In the state of New York, there is a higher court, the highest in the state, which has appellate power only. Its business is to review cases from the supreme court.

§ 10. A court of chancery is in its nature different from all other courts. It is sometimes called a court of equity, being designed to enable persons to obtain what is right and equitable, when they can not obtain the same in ordinary courts of law. In ordinary courts, a man is not allowed to be a witness for himself; but in this, the parties may be put on oath. In other courts, a person can not be compelled to fulfill a contract; he can only be made to pay damage for default; but in a court of equity, a man may, in certain cases, be compelled to fulfill the contract itself.

§ 11. If a debtor has property held in trust for him by another; or has money, notes, or other obligations or debts owing to him; this court may compel him to discover and give up such property to satisfy an execution against him; and it may prevent his debtors from paying him such debts. It has power also to restrain banks and other corporations and individuals from doing fraudulent acts; to dissolve corporations; to stop proceedings at law in certain cases; and to do many other things of a like nature, by way of relief, when relief can not otherwise be had.

§ 12. Suits in equity are not commenced as suits at law.

The plaintiff prepares a bill of complaint, called a bill in chancery, the facts in which are sworn to by the plaintiff. The bill, which contains a petition or prayer that the defendant, the party complained of, may be summoned to make answer on oath, is filed with the clerk of the court, who issues a subpena, 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.

13. Courts of chancery, or courts of equity, separately organized as such, no longer exist in many of the states. The power to try suits in equity is exercised by the judges of the common law courts.

§ 14. Court of Probate. In each county there is 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 for the disposal of his property after his death. The Latin word probatus means proof; hence the application of the word probate to the proving of a will. (See Wills and Testaments.) In the state of New York, this officer is called surrogate.

§ 15. Court of Impeachment. There is no law court by this title. The name is applied to the senate when sitting on a trial of impeachment. An impeachment is a charge against a public officer for corrupt conduct in office. For example, a member of the legislature who should, for money, or some other consideration offered as a bribe, vote for or against a proposed law; or any other officer who should act corruptly in his official capacity, would be liable to impeachment. The constitutions of the several states, and the constitution of the United States, give to the house of representatives the power to impeach, that is, to make the charge or accusation, and to the senate the power to try the impeachment. 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.

§ 16. The mode of commencing a trial of this kind, as prescribed by law, is as follows: The house of representatives makes the charge, and delivers it to the president of the senate, who causes the court to be summoned.

The

accused is then brought before the court to answer to the charge, and is entitled to counsel to assist him. When the issue is joined, the court appoints a time and place for trial. Before the trial commences, the clerk administers to the president of the senate, and the president to the other members, an oath truly to try and determine the charge according to evidence. The trial is conducted as trials are in courts of justice. If two-thirds of the members present concur in a conviction, the accused is convicted; if not, he is acquitted. If the person is convicted, the court may remove him from office, or disqualify him from holding any office thereafter, in the state, or both remove and disqualify him; but no other judgment can be pronounced by this court. But if the act committed by the offender is a crime, he may also be indicted, tried, and punished in a court of common law, as any other person.

CHAPTER XXVIII.

CRIMES AND MISDEMEANORS; PROSECUTION OF OFFENDERS.

§ 1. THE statutes of each state define the crimes of which its laws take cognizance. The definitions given in this chapter, agree substantially, it is presumed, with those of similar crimes in every state in the union. The statutes also prescribe the penalties, which are not precisely the same in all the states. Nor is there in any state an equal measure of punishment inflicted in all cases for the same offense. The laws usually declare the longest and the shortest terms of imprisonment, and the highest and lowest fines, leaving the exact measure of punishment, except for crimes punishable by death, to the discretion of the judges, to be fixed according to the aggravation of the

offense.

§ 2. The laws of the several states differ in respect to the number of crimes made punishable by death. In some states the penalty of death is annexed to the crime of murder only. Treason is punishable by death; but as this