Government in the United States, National, State and Local

by James Wilford Garner

The Judges of Courts.—Qualifications.—Generally no qualifications for the judicial office are prescribed by law, except in a few states where it is required that judges shall be lawyers or be "learned in the law." As a matter of fact, however, judges are nearly always lawyers, except in the case of justices of the peace and police magistrates, where extensive knowledge of the law is not essential.

Terms of Office.—The terms of the judges vary widely among the different states. In the early days of our history, the judges generally held their offices during good behavior or until the attainment of a certain age, usually sixty or seventy years. With the growth of democracy, however, most of the states came to adopt short terms for judicial as well as for other public officials. Only in Massachusetts and Rhode Island do the judges of the highest court now serve practically for life. In New Hampshire they serve until they are 70 years of age. Elsewhere the tenure varies from two years, in Vermont, to twenty-one years, in Pennsylvania. In Maryland, the tenure is fifteen years; in New York, fourteen; in several, it is twelve, in some nine, in many six. The advantage of a long term is that it enables the judges to acquire experience and renders them less affected by political influence and popular clamor.

Methods of Choosing the Judges.—In early times the judges were chosen either by the legislature or by the governor. Choice by the legislature was objectionable because it often resulted in selection by political caucuses and in a parceling of the judgeships among the different counties or sections of the state. Appointment by the governor was objectionable to many because it often resulted in the choice of political favorites. Most of the states, therefore, abandoned these methods of choice for popular election, Mississippi in 1832 being the first state to adopt this method. Only in Delaware, Connecticut, New Jersey, Massachusetts, New Hampshire, and Maine, are the higher judges now appointed by the governor,—subject to the confirmation of the state senate or the legislature,—and only in Rhode Island, Vermont, South Carolina, and Virginia are they elected by the legislature. In all the other states they are elected by the people.

The arguments in favor of popular election are that it is more in harmony with the principles of popular government, and, it is claimed by some, tends to secure a higher class of judges, thus doing away with the evils of executive appointment and of legislative choice described above. The objection to this method, however, is that it compels judicial candidates to engage in political contests, and by making their tenures dependent upon popular favor subjects them to the temptation of shaping their decisions to meet the approval of the people, who, obviously, are not always qualified to judge of the soundness of judicial decisions involving intricate questions of law. Such a method, it is claimed by some, tends to secure the election of able politicians rather than of able judges.

Compensation of the Judges.—The pay of the judges, like their terms of service, varies widely among the different states. The salary paid the judges of the highest court is not much more or less than the governor's salary. The highest salary paid in any state to the judges of the highest court is $13,700 per year, in the state of New York,[17] a salary about as large as that of the justices of the United States Supreme Court. In Illinois and a few other states, the justices of the supreme court receive $10,000 a year. Many states pay less than $5,000 a year. This scale of salaries is very low as compared with those in England, where the highest judges receive $25,000, and the lowest, the county judges, $7,500 a year. A few states have provided a system of pensions for their higher judges who have served a certain number of years or who have reached a certain age, after which they are allowed or compelled to retire, but this provision has not yet become general.

Trial of Civil Cases.—The cases brought before the courts for trial are of two general classes: (1) civil actions and (2) criminal actions. A civil action is a suit brought for the enforcement of a private right or to secure compensation for damages on account of injuries sustained through the violation of one's rights. Thus a creditor sues a debtor for refusing to pay a debt; an owner sues to recover property which has been wrongfully taken from him; a householder brings an action against his neighbor for trespassing upon his premises; and so on. The person who brings the action is called the plaintiff; the one against whom it is brought, the defendant; and the two together are known as the parties to the action.

Beginning of a Civil Case.—A civil suit is usually started by the filing of a complaint containing a statement of the facts, with the court, which then issues a summons directing the sheriff or constable to notify the defendant to appear and make answer. If the plaintiff is a creditor and has reason to believe that the defendant is preparing to dispose of his property with the intention of defrauding him, he may ask the court to issue a writ of attachment authorizing the sheriff to take possession of the property. Or if the defendant is in wrongful possession of property belonging to the plaintiff the latter may ask the court to issue a writ of replevin requiring the officers to seize the property and turn it over to the plaintiff. In both cases, however, the plaintiff is required to give a bond for the costs of the suit and for the return of the property in case the court should decide that it does not properly belong to him. The defendant now makes an answer or plea in which he denies the charges of the plaintiff as a whole or in part, or admits their truth but denies the right of action, or maintains that the court has no jurisdiction, or pleads something else in bar of the action. The complaint of the plaintiff and the answer of the defendant are known as the pleadings.

The Trial.—The issue is now joined and the case is ready for trial. If it is a suit in equity, it is tried by the judge alone without a jury. If it is a suit at law, either party may demand a jury, but if both parties agree to waive a jury trial, the case is tried by the judge alone. Frequently civil cases are tried without juries, the parties preferring to leave the decision to the judge. If, however, a jury trial is preferred, a list of qualified persons is prepared and from this list twelve persons, or six, as the parties may agree upon, are selected to try the case. After the jury is sworn the attorney for the plaintiff generally makes a statement of the facts upon which he rests his case. He then calls his witnesses, who testify to their knowledge of the facts as they are questioned by counsel. When the attorney for the plaintiff has completed the examination of each witness, the attorney for the defendant is allowed to cross-examine him. Witnesses are required to confine their testimony to what they know to be the truth, and are not permitted to tell what they believe to be true or what they have learned from mere hearsay.

After the plaintiff has introduced all his evidence, the defendant's case is presented in a like manner, the counsel for the plaintiff this time conducting the cross-examination. When the evidence for the defendant is all in, the plaintiff may introduce evidence in rebuttal, after which the defendant may do likewise. The next step is the argument of counsel. The attorney for each side addresses the jury and endeavors to convince it that the evidence sustains the facts which he has undertaken to prove. The burden of proof in civil cases is usually on the plaintiff, and his attorney generally has the privilege of closing the argument. If the plaintiff has failed to make out a case the judge may dismiss the suit without giving the case to the jury, or if the evidence is such as to admit of but one conclusion, the judge may direct the jury to return a verdict in accordance therewith. But if the evidence leaves the question as to the facts in doubt, the case is given to the jury and it alone can make the decision. Before sending the jury to their room the judge instructs them as to the law applicable to the case, but generally in this country he cannot comment on the weight of the evidence or express any opinion as to the facts. The jury, after receiving its instructions, retires from the court room and deliberates in secret. If, after a reasonable time, the jurymen cannot agree upon a verdict they so report to the judge and are discharged, and the trial must be gone through with again.

Judgment; Execution.—After the return of the verdict, the judge enters judgment in accordance therewith. In most civil cases the judgment, if for the plaintiff, requires the defendant to pay him a certain sum of money as a compensation for the damages he has sustained. If he refuses to pay, an "execution" is issued, that is, the sheriff is required to seize and sell a sufficient amount of the defendant's property to satisfy the judgment. If the suit is one in equity the "decree," as the decision is called, is not usually for the payment of damages but is a command to the defendant to do a specific thing, as, for example, to carry out a contract or to pay a debt; or to refrain from doing something, such as maintaining a nuisance to the injury of the defendant.