Chapter XX
Chancery or Equity Courts; Probate Courts; Court of Impeachment.
§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.
§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.
§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.
§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 subpœna 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.
§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_.
§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.
§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.
§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.
§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.