Chapter XVIII
Trial by Jury; Execution; Attachment; Appeals; Arrest of Offenders.
§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.
§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.
§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.
§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.
§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.
§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.
§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.
§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.
§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.
§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_.
§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.
§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.
§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., §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.
§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.