[3] It would seem that under a republican form of government this right might be assumed to be secure. The provision is meant to "make assurance doubly sure." History had shown the necessity of such precaution.

ARTICLE II.

RIGHT TO BEAR ARMS.

A well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.

It should not be the policy of a republic to keep a large standing army. An army is expensive, it takes so many men from productive industries, and it is dangerous to liberty—it may from its training become the instrument of tyranny.

But a republic must have defenders against foes foreign or domestic. A well-trained militia may be depended upon to fight with valor against a foreign foe, and may at the same time serve as a check upon usurpation.

For definition of militia, see page 162.

ARTICLE III.

QUARTERING SOLDIERS.

No soldier shall, in time of peace, be quartered in any house without the consent of the owner, nor in time of war, but in a manner to be described by law.

To "quarter" soldiers in any house is to allot them to it for food and shelter.

This, it will be remembered, was one of the grievances of the colonies. This quartering of soldiers had been, and indeed is in some countries to this day, a mode of watching and worrying persons for whom officers of the government entertained suspicion or ill will.

ARTICLE IV.

SECURITY AGAINST UNWARRANTED SEARCHES.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches, and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

This, as well as the preceding provision, recognizes the maxim, "A man's house is his castle." It prevents the issuance of general warrants.

ARTICLE V.

SECURITY TO LIFE, LIBERTY AND PROPERTY.

_No person shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a grand jury,[1] except in cases arising in the land or naval forces, or in the militia when in actual service in time of war, or public danger;[2] nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb;[3] nor shall be compelled in any criminal case to be a witness against himself,[4] nor be deprived of life, liberty, or property, without due process of law;[5] nor shall private property be taken for public use without just compensation.[6]

[1] For information in regard to the method of conducting criminal trials, see Division I.

[2] The necessity here for prompt and exact obedience to orders is so urgent, that summary methods of trial must be permitted.

For information regarding trial by court martial, see appendix, page 338.

[3] That is, when a jury has rendered its verdict and judgment has been pronounced, the accused cannot be compelled to submit to another trial on the same charge. But if the jury disagrees and fails to bring in a verdict, he may be tried again.

[4] Accused persons used to be tortured for the purpose of extorting from them a confession of guilt.

[5] In a despotism, the lives, liberty and property of the people are at the command of the ruler, subject to his whim. [6] For an illustration of the method of securing private property for public use, see page 18.

ARTICLE VI.

RIGHTS OF ACCUSED PERSONS.

In all criminal prosecutions the accused shall enjoy the right to a speedy[1] and public[2] trial by an impartial jury[3] of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law,[4] and to be informed of the nature and cause of the accusation;[5] to be confronted with the witnesses against him;[6] to have compulsory process for obtaining witnesses in his favor;[7] and to have the assistance of counsel for his defense.[8]

The importance of this provision is likely to be underestimated. Says Montesquieu, "Liberty consists in security. This security is never more attacked than in public and private accusations. It is, therefore, upon the excellence of the criminal laws that chiefly the liberty of the citizen depends." And Lieber, in his very able work on Civil Liberty and Self-Government, says, "A sound penal trial is invariably one of the last fruits of political civilization, partly because it is one of the most difficult of subjects to elaborate, and because it requires long experience to find the proper mean between a due protection of the indicted person and an equally due protection of society.... It is one of the most difficult things in all spheres of action to induce irritated power to limit itself."

Besides the guarantees of the constitution, Lieber mentions the following as characteristic of a sound penal trial: the person to be tried must be present (and, of course, living); every man must be held innocent until proved otherwise; the indictment must be definite, and the prisoner must be allowed reasonable time to prepare his defense; the trial must be oral; there must be well-considered law of evidence, which must exclude hearsay evidence; the judge must refrain from cross-examining witnesses; the verdict must be upon the evidence alone, and it must be guilty or not guilty; [Footnote: In some countries the verdict may leave a stigma upon an accused person, against whom guilt cannot be proven. Of this nature was the old verdict, "not proven."] the punishment must be in proportion to the offense, and in accordance with common sense and justice; and there must be no injudicious pardoning power, which is a direct interference with the true government of law.

Most, if not all but the last, of the points mentioned by Dr. Lieber are covered by that rich inheritance which we have from England, that unwritten constitution, the common law. The question of how best to regulate the pardoning power is still unsettled.

[1] He may have his trial at the next term of court, which is never very remote. But the accused may, at his own request, have his trial postponed.

[2] Publicity is secured by the keeping of official records to which all may have access, by having an oral trial, by the admission of spectators to the court room, and by publication of the proceedings in the newspapers.

[3] For the mode of securing the "impartial jury," see page 63.

[4] It is provided in the body of the constitution (III., 2, 3,) that criminal trial shall be by jury, and in the state where the crime was committed. This amendment makes the further limitation that the trial shall be in the district where the crime was committed, so a person accused of crime cannot be put to the trouble and expense of transporting witnesses a great distance.

[5] The nature of the accusation is specified in the warrant and in the indictment, both of which, or certified copies of them, the accused has a right to see.

[6] Not only do the witnesses give their evidence in the presence of the accused, but he has also the right to cross-examine them.

[7] But for this "compulsory process" (called a subpoena), persons entirely guiltless might be unable to produce evidence in their own behalf. The natural desire of people to "keep out of trouble" would keep some knowing the circumstances of the case from giving their testimony, and others would be afraid to speak up for one under a cloud and with all the power of the government arrayed against him.

[8] The accused may plead his own cause, or he may engage a lawyer to do it for him. If he is too poor to employ counsel, the judge appoints a lawyer to defend him, whose services are paid for out of the public treasury.

From the foregoing, it will be seen that great care is exercised to give a person accused of crime full opportunity to defend himself. And it must be remembered in this connection that it is a principle of our jurisprudence that the burden of proof lies upon the government. That is, the accused is to be deemed innocent until he is proved guilty. We prefer that a number of guilty persons should escape punishment rather than that one innocent person should suffer.

ARTICLE VII.

JURY TRIAL IN COMMON LAW SUITS.

In suits at common law,[1] where the amount in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved; and no fact tried by a jury shall be otherwise re-examined in any court of the United States, than according to the rules of common law.[2]

[1] The meaning of this expression is difficult of explanation, but it covers most ordinary lawsuits. From the fact that a jury in criminal cases has already been guaranteed (III., 2, 3, and Am. VI.), it may be assumed that this provision is intended to cover civil suits.

[2] Among the "rules of common law" are these: 1. All suits are tried before a judge and a jury, the jury determining the facts in the case and the judge applying the law. 2. The facts tried by a jury can be re-examined only by means of a new trial before the same court or one of the same jurisdiction.

The purpose of this provision is to preserve the jury trial as a real defense against governmental oppression. In the Supreme Court there is no jury; the trials are by the court. If questions of fact could be reviewed or re-examined by such a court on appeal the protection now given by the jury would be nullified.

ARTICLE VIII.

EXCESSIVE BAILS, FINES AND PUNISHMENTS FORBIDDEN.

Excessive bail shall not he required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Having enjoyed the protection of this and similar provisions for so many years, we can hardly appreciate their value. It must be borne in mind that those who "ordained and established" the constitution had been abused in just these ways, and that in this provision they provided against a real danger.

ARTICLE IX.

UNSPECIFIED PERSONAL RIGHTS PRESERVED.

The enumeration in the constitution of certain rights shall not be construed to deny or disparage others retained by the people.

Certain rights which governments are prone to trample on have been mentioned in the preceding provisions. But not all of the personal rights could be enumerated. Hence this provision covering those unnamed.

ARTICLE X.

THE UNITED STATES GOVERNMENT ONE OF LIMITED POWERS.

The powers not delegated to the United States by the constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

This provision gives a rule for interpreting the constitution. "It is important as a security against two opposite tendencies of opinion, each of which is equally subversive of the true import of the constitution. The one is to imply all powers, which may be useful to the national government, which are not expressly prohibited; and the other is, to deny all powers to the national government which are not expressly granted." [Footnote: Story] The United States is "a government of limited powers," and has only such implied powers as are necessary to carry out the express powers. On the other hand, a state has all powers not denied to it by the state or federal constitutions.

Pertinent Questions.

What is the general purpose of the first ten amendments? Do they restrict the general government or the state governments, or both? When and how were these amendments proposed? When and how ratified? What three limitations to the power of amendment does the constitution contain?

Is there any "established" or state church in the United States? How do you suppose that this came about? Are we as a people indifferent to religion? Can a person say what he pleases? Can he publish whatever opinions he pleases? What is slander? Libel? Why should these last two questions be asked here? Petition whom? What's the good of petitioning? What petitions did you learn about at the beginning of this study? Can soldiers in the regular army petition? Why? Has the "right of petition" ever been denied in this country?

Wherein is a standing army dangerous to liberty? Is this true of the navy? How is a "well-regulated militia" a check upon usurpation of authority? Does Amendment II. authorize you to keep a revolver? To carry it in your pocket? How often is the army mentioned in the Declaration of Independence, and what is said?

What are the objections to "quartering" soldiers in a private house? Does the amendment protect tenants? Why the exception in the amendment? What mention of quartering soldiers in the Declaration of Independence?

Get and read a warrant of arrest. A search warrant. Has a warrant always been needed as authority for arrest? Are arbitrary arrests, searches and seizures permitted in any civilized countries today?

What is a capital crime? An infamous crime? A presentment? An indictment? A grand jury? How do the proceedings of a grand jury compare with those of a petit jury? Why the differences? Why the exception in the first clause of the amendment? Can a convicted and sentenced person ask for a new trial? Under what other circumstances can persons be tried again? In what connections have you heard of private property being taken for public use.

Taking each guarantee in the sixth amendment, show the wrongs which an accused person, presumably innocent, would suffer if the provision were not recognized or that guarantee removed.

Find out all you can about common law. What is meant by a civil suit as distinguished from a criminal suit? What is meant by a case in equity? When an appeal is taken what is subject to re-examination? What is not? Why?

What conditions determine the just amount of bail? Of fines? What cruel punishments have you heard or read of as being administered by public authority? When and where were such punishments not "unusual"? Was the eighth amendment necessary? What limit is there to things which "The People" may do? To the powers of the United States government? To those of a State government?

Find the history behind each provision in the ten amendments. From what country did we obtain the notions that the rights here preserved belong to freemen? From under what other country could the Colonies have come ready to be the United States as we love it, or from what other country could we have inherited such notions?

Since these ten amendments are intended for the protection of individuals against governmental oppression, it will be an excellent scheme now for the student to arrange in the form of a tabulation the various directions in which such protection is guaranteed by the constitution as amended. The following is simply suggestive:

I. From Legislative Oppression.—1. Thought; 2. Expression; 3. Bills of Attainder; 4. Ex post facto laws; 5. Social distinctions; 6. Assembly; 7. Petition.

II. From Executive Oppression.-1. Military; 2. Searches and seizures; 3. Life, Liberty, or Property; 4. Suspension of Habeas Corpus.

III. From Judicial Oppression.-1. Before trial: arrest, bail, information as to accusation, time of trial; 2. During trial: publicity, jury, evidence, counsel, punishment; 3. After trial: retrial; 4. Treason.

IV. From State oppression.

ARTICLE XI.

LIMITING THE JURISDICTION of UNITED STATES COURTS.

The judicial power of the United States shall not be construed to extend to any suit in law or equity,[1] commenced or prosecuted against one of the United States[2] by citizens of another state, or by citizens or subjects of any foreign state.[3]

[1] Equity is hard to define. According to Aristotle it is "the rectification of the law, when, by reason of its universality, it is deficient." Blackstone says, "Equity, in its true and genuine meaning, is the soul and spirit of all law.... Equity is synonymous with justice." It is the province of law to establish a code of rules whereby injustice may be prevented, and it may therefore be said that all law is equitable. "In a technical sense, the term equity is applied to those cases not specifically provided for by positive law." (See page 208; also Dole's Talk's About Law, page 502.)

[2] According to III. 2, a state could be sued for a debt the same as an individual, and shortly after the adoption of the constitution several of them were sued for debts incurred during the Revolutionary War. Pride and poverty both prompted the states to desire immunity from such suits. Hence the adoption of this amendment. (See page 209.)

[3] A non-resident secures the payment of a debt due from a state in the same way as a resident—by legislative appropriation.

ARTICLE XII.

MODE OF CHOOSING THE PRESIDENT AND VICE-PRESIDENT.

The amendment has been discussed in connection with Article II. of the constitution, pages 184-6.

ARTICLE XIII.

ABOLITION OF SLAVERY.

1. Neither slavery nor involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

2. Congress shall have power to enforce this article by appropriate legislation.

This amendment, one of the "first fruits" of the Civil War, put an end to slavery in the United States. The wording was taken, almost verbatim, from the Ordinance of 1787.

ARTICLE XIV.

MISCELLANEOUS RECONSTRUCTION PROVISIONS.

SECTION I.—"CITIZEN" DEFINED. PRIVILEGES GUARANTEED.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.[1] No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall deprive any person of life, liberty or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.[2]

[1] This provision defines citizenship. It was worded with the special view of including the negroes. It embodies the principle of the Civil Rights Bill, and is intended to guarantee to the negroes the protection implied in citizenship.

[2] Some of the amendments impose limitations only on the general government. Lest the states in which slavery had recently been abolished should endeavor to oppress the ex-slaves this provision was made as a limitation upon the states.

But this provision is general in it nature, and by means of it the United States can protect individuals against oppression on the part of the states. Pomeroy [Footnote: Constitutional Law, p. 151.] regards this as the most important amendment except the thirteenth.

SECTION II.—BASIS of REPRESENTATION.

Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for president and vice-president of the United States, representatives in congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state.

Each state determines who may vote within its borders. This provision was intended as an inducement to the former slave states to grant franchise to the colored men. It does not compel them to do this. But granting the franchise increases their representation. The fifteenth amendment is more imperative in this direction.

SECTION III.—DISABILITIES of REBELS.

No person shall be a senator or representative in congress, or elector of president or vice-president, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.[1] But congress may, by a two-thirds vote of each house, remove such disability.[2]

[1] The primary purpose of this provision was to exclude from public office those who in the Civil War, by entering the service of the Confederate States, broke an oath previously taken. Though the persons whom it was immediately intended to affect will soon all be "with the silent majority," the provision, by being made part of the constitution, will remain a warning to all in the future.

[2] The disabilities have been removed from all but a few of those immediately referred to. This clause seems to put another limitation upon the power of the president to grant pardons. From 1862 to 1867 the president had been specially authorized by congress to grant amnesty to political offenders. And in 1867 President Johnson continued to grant such amnesty, denying the power of congress to put any limitation upon the president's pardoning power. But this provision specifically places the power to relieve certain disabilities in the hands of congress. The "two-thirds" vote is required in order that such disabilities may not be easily removed.

SECTION IV.—PUBLIC DEBT.

The validity of the public debt of the United States, authorized by law, including debts incurred for the payment of pensions, and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any state shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave, but all such debts, obligations and claims shall be held illegal and void.

Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

This section needs little comment. It means simply that any expense incurred on the part of government in suppressing rebellion shall be paid; and that debts incurred in aid of rebellion shall not be paid. It applies not only to the late Civil War but to all future wars of the same kind.

ARTICLE XV.

SUFFRAGE.

The right of citizens of the United States to vote shall not be denied or abridged by the United States, or by any state, on account of race, color, or previous condition of servitude.

Congress shall have power to enforce this article by appropriate legislation.

This amendment was intended to put negroes upon the same footing as white people in the matter of suffrage.

Each state, as has previously been stated, prescribes the qualifications of voters within its borders. It may require that they be fifteen or twenty-five or twenty-one or any other number of years old; it may or may not require a property qualification; it may or may not require an educational qualification; it may include or exclude women as voters; it may draw the line at imbeciles and felons, but it cannot draw the color line. A black citizen must be permitted to vote upon the same conditions as a white one.

Pertinent Questions.

What is meant by a state "repudiating" a debt? What states have done so? What reason did each assign for doing so? Can a city repudiate? A county?

Were amendments XIII., XIV., and XV. constitutionally adopted? [Footnote: See Wright, 284; Andrews, 272; and Pomeroy, 76.]

How was slavery abolished in each of the states? [Footnote: See page 343.] What does the emancipation proclamation say about slavery? Can slavery exist in Alaska? Why?

Are you a citizen of the United States? How may an alien become a citizen? May a person be a citizen of the United States without being a citizen of any state? A citizen of a state without being a citizen of the United States? [Footnote: See Wright, 287.] How does a citizen of the United States become a citizen of a certain state? What are some of the "privileges and immunities" of a citizen of the United States? [Footnote: See Wright, 287.] Can a Chinaman become a citizen? An Indian? Does this section give women the right to vote?

What provision of the constitution is amended by the second clause of the fourteenth amendment? What change is made? How often does the "counting" take place? What is it called? When will the next one occur? Has the penalty mentioned in the second clause ever been inflicted?

Name persons affected by the third clause of the fourteenth amendment. Name persons from whom the disabilities have been removed. How were they removed? Name persons against whom the disabilities still lie. May they vote? What provision of the original constitution is affected by the last sentence of this clause, and how is it modified?

How much money was expended in suppressing the rebellion? How was it raised? How much debt has been paid? How much remains unpaid? Did you ever see a United States bond or note? How much is a confederate bond for $1000 worth? Why? Have any emancipated slaves been paid for by the government?

What is the necessity of the clause commencing, "The congress shall have power?"

What is secured to negroes by the thirteenth amendment? By the fourteenth? By the fifteenth? Name persons who are citizens but cannot vote. Name three eminent colored men.

What clause could be omitted from the constitution without affecting it?



PART IV.

GOVERNMENT IN GENERAL.



CHAPTER XXX.

FORMS OF GOVERNMENT.

Classification.—Aristotle divided governments into three chief classes, based upon the number of persons constituting the governing element, as follows: government by one, monarchy; by the few, oligarchy; by the many, democracy.

Subdivisions of these classes may be made as follows.

1. By one, monarchy; hereditary or elective; absolute or limited.

2. By the few, oligarchy or aristocracy.

3. By the many, democracy or republic.

Definitions and examples.—A hereditary monarchy is one in which the succession is acquired by birth, the usual order being from father to eldest son; examples, England, Prussia, etc.

An elective monarchy is one in which the succession is by election; the term for life; example, the old German empire, in which the emperor was chosen by certain princes called "electors." [Footnote: Our mode of electing a president may have been suggested in part by this old practice.]

An absolute monarchy is one in which the three functions of government as related to law—the legislative, executive and judicial—are all vested in one person; examples, Russia and Turkey in Europe, and most of the countries of Asia and Africa.

A limited monarchy is one in which the sovereign's power is confined chiefly to executing the laws framed and interpreted by other departments; examples, England, and most of the other countries of Europe.

An oligarchy is that form of government in which the supreme power is vested in the hands of a few (oligos, few); example, the triumvirates of Rome.

An aristocracy is really a government by the best (aristos, the select, the best). This is the sense in which the word was first used. It has come to mean government by a privileged class. Aristocracy seldom, if ever, exists alone.

A democracy is that form of government in which the functions are administered directly by the people, only the clerical or ministerial work being done by officers, and they appointed by the people; examples, the old German tribes, some of the states of ancient Greece, some of the present cantons of Switzerland, the early settlements of New England, and in a limited sense our own school districts and towns.

A republic is a representative democracy. A democracy is practicable only within a very limited area. When the area grows large the people must delegate much of work of government to representatives. Examples, the United States, each state in the Union, Switzerland, and most of the countries of America.

The Origin of Each Typical Form.—Monarchy and oligarchy both probably owe their existence to war. The successful chieftain or leader in war became the king, and his retainers or followers became the privileged classes. Those who were subdued either became slaves or were simply "the common people." Democracy had its beginnings, and flourishes best, in times of peace. The people, though they had to fight again and again to secure recognition, have really won their right to it by the arts of peace.

The Criteria of Good Government.—Among the tests by which the goodness or badness of a government, or form of government, may be determined, are the following:

1. A good government is stable. Stability is the foundation of worthiness of character in governments as well as in persons. The basis of progress is permanence—one cannot grow wise, or rich, or strong, unless he can preserve at least a part of what he gains. "Conduciveness to progress includes the whole excellence of government." [Footnote: Mills Representative Government.]

2. A good government tends to increase the sum of good qualities in the governed. Strength comes from exercise. Therefore a government is excellent in proportion as it works up to the possibilities of a people for self-government and fits them to go on advancing in intellectual and moral power.

3. A good government has proper machinery. This should be "adapted to take advantage of the amount of good qualities which may at any time exist, and make them instrumental to right purposes." [Footnote: Mills Representative Government.]

"Representative Government the Ideally Best Polity."—Every student who has access to Mills' Representative Government should read the chapter with the heading at the beginning of this paragraph. He combats the proposition, "if a good despot could be insured, despotic monarchy would be the best form of government." Granting that much good might be done, he shows that the very passivity of the people must result in deterioration, "that is, if the nation had ever attained anything to decline from." On the other hand, he shows that participation in public affairs gives a mental and moral training otherwise unattainable. After showing the nature of the mental development acquired, he says: "Still more salutary is the moral part of the instruction afforded by the participation of the private citizen, if even rarely, in public functions. He is called upon, while so engaged, to weigh interests not his own; to be guided, in case of conflicting claims by another rule than his private partialities; to apply, at every turn, principles and maxims which have for their reason of existence the general good; and he usually finds associated with him in the same work minds more familiarized than his own with these ideas and operations, whose study it will be to supply reasons to his understanding, and stimulation to his feeling for the general good. He is made to feel himself one of the public, and whatever is their interest to be his interest. Where this school of public spirit does not exist ... a neighbor, not being an ally or an associate, since he is never engaged in any common undertaking for the joint benefit, is therefore only a rival."

Dangers in Each Form of Government.—While each of the typical forms has merits of its own,—the monarchy having stability, the aristocracy securing the benefit of inherited good qualities, and democracy the advantages referred to in the preceding paragraph—there is danger in each form. Monarchy continually tends toward that inconsiderate exercise of power which we call tyranny. Aristocracy tends toward oligarchy; government by the best is prone to decline into government by the few without regard to qualification. And democracy is in danger of degenerating into mob rule.

Every Government Aims to be Aristocratic.—That is, each government in theory seeks to have those rule who are best fitted to manage public affairs. This is the thought, for instance, in our requiring certain qualifications in voters and office-holders.

Our Own Government.—We fondly believe that our own government combines to a high degree the excellencies of all the forms.

Our hope for stability lies chiefly in the fact that our corner stone is eternal justice, the equality of all men before the law. Even the severe shock of civil war has been endured, and our system is more strongly intrenched in the confidence of the world than ever before.

We believe in the potency of good blood and good training. But the worth of each individual must be shown, it will not be taken for granted. We will neither lift him up because he is "his father's son," nor cast him down because his father was unworthy.

Situated as we are, with no powerful rivals near us, with the ocean between us and the countries of Europe, the common defense requires no great standing army to eat up our substance and to menace our liberties. Living in the north temperate zone, the belt of highest civilization, in a country capable of producing almost everything desirable, there is every reason to believe that, if we are true to ourselves and our opportunities, we may long enjoy prosperity and peace.

Debate.

Resolved, That universal suffrage is dangerous to the well being of society.



PART V.

COMMERCIAL LAW.

RESPONSIBILITY.

Ignorance of the law is no excuse.

At first sight this would seem unjust, since no one but a lawyer can be expected to have much legal knowledge. But as law is simply common sense applied, the exercise of ordinary judgment is usually sufficient to enable a person to act safely.

To present a few of the more common principles of commercial law, is the purpose of the following pages.



CHAPTER XXXI.

CONTRACTS.

Definitions.—A contract is an agreement between two or more parties, containing on the one hand an offer and on the other an acceptance.

Contracts are express or implied. An express contract is one whose terms are definitely stated in words; an implied contract is one whose terms are understood from the circumstances. A written contract is express; an oral contract may be express or implied.

Fundamental Principles.—Every one able to contract is free to enter into any agreement not forbidden by law. Every such person is bound to fulfill every legal contract that he makes.

Essential to a Contract.—To be binding, however:

1. A contract must be to do a lawful act.

Most contracts are permitted by law. But a contract the carrying out of which is recognized as subversive of justice, morality, or the general welfare, is illegal, and therefore void.

2. The thing contracted to be done must be possible in its nature.

That a person finds it impossible under the circumstances to live up to his contract should not and does not release him from responsibility.

3. The parties to the agreement must be competent to contract.

Persons not able to contract are minors, lunatics, idiots and drunk people, and married women (except in some states in relation to their separate estates). The purpose of this arrangement is to protect those who cannot protect themselves. A minor may, however, enforce a contract if he chooses to do so. A contract with a minor for the necessaries of life, when they are not or cannot be furnished by a parent or guardian, is valid. And any contract ratified by a minor after coming of age is binding upon him. A person unable to contract personally cannot contract through an agent. But he may act as an agent.

4. The parties to the contract must assent to it.

The assent must be voluntary. It may be given by words, by acts, or by accepting the benefits of the offer. If acceptance is by letter, the contract is complete when the letter of acceptance is mailed. The parties must assent to the same thing. Assent imposing a new condition is no assent.

5. The promise must be for a consideration.

The law will not compel a person to give something for nothing. But the amount of the consideration is usually unimportant, so long as it is reasonable. Anything is a consideration which is of benefit to the person promising or of loss or inconvenience to the other. An illegal consideration is, however, not a consideration; nor is the performance of a moral duty, nor the doing of what would be a legal duty without the promise in question. If the consideration fails, the contract fails. One has no right to sue on a contract unless he has performed or offered to perform his part.

6. The contract must be made without fraud.

Fraud may be practiced in two ways, by making statements known to be false or by concealing facts that ought to be revealed. But if the parties meet on equal terms, with the same sources of information, and if nothing is done to conceal faults, there is no fraud in law. "Let the buyer beware," is an ancient maxim, and a buyer must exercise reasonable diligence and prudence. Fraud absolves the injured party, but the defrauding party may be held to the contract; that is, the contract is voidable at the option of the party deceived.

7. Some contracts must be in writing.

The principal classes of commercial contracts which must be in writing to be binding, are: (a) agreements for the sale of property of more than a certain value; (b) agreements of guaranty; (c) agreements not to be performed within a year.

In the famous English "Statute of Frauds," which is the basis of the American local statutes on matters referred to in this section, the value of personal property requiring written contract was ten pounds or fifty dollars. In the United States the value varies in different states from $30 to $200. But if part of the property is delivered or part of the purchase money is paid the whole contract is binding, even if not in writing.

A guaranty is an agreement by which a person warrants that a certain third person shall duly perform an engagement. Thus if A obtains goods from B upon the assurance of C that they will be paid for, C is said to guarantee the debt.

A contract which may be performed within a year does not come under the statute, even if such performance seems improbable at the time of making the contract.

The style of the writing is immaterial—it may be formal or informal, in ink or pencil. It may be made by the principal or by his agent.

Pertinent Questions.

How are the laws—legislative enactments and decisions of the Supreme Court—made public? Why are they thus published?

Tell whether the following agreements are valid contracts or not, and why:

1. An agreement to print a libel. A lease of a house for gambling purposes. A contract executed on Sunday. A contract for work to be done for five consecutive days, beginning on Friday. How would it affect the case if the work were the removing of goods from a building in imminent danger of falling? The agreement of a tinsmith never again to work at his trade. His agreement not to work at it within a specified time or in a certain town.

2. An agreement to swim across the ocean. To pay for a horse at the rate of one kernel for the first nail in the horse's shoes, two for the second, four for the third, eight for the fourth, and so on. To deliver goods at a certain time, though the delivery at the proper time may be prevented by some accident. Is a person released from responsibility by sickness?

3. An agreement by an orphan to pay for necessaries at some future time. If the price charged is exorbitant, is he bound to pay it or only a fair market price? A man while drunk buys a horse for which he has no use, but after becoming sober continues to use the horse. If the price is excessive, how much must he pay? When a married women buys goods on credit, is she acting as the principal or as her husband's agent?

4. An order for goods to be sent to a man's house, nothing being said about payment. An offer retracted before acceptance. An offer for a certain horse; an acceptance under the impression that a different horse is meant. A service permitted though uninvited; give an example. A man in St. Paul offers by letter a certain piece of property at a certain price to a man in Chicago; an hour after mailing the letter he changes his mind; how can he prevent a contract?

5. A agrees to give B $25 for a silver dime. But if this particular dime were of a rare kind and desired by A, a wealthy coin collector, to complete a set, would the consideration be sufficient? An offer shouted from a fourth story window just as the roof is about to fall, in consequence of which offer a fireman at unusual personal risk successfully attempts the rescue. An offer and acceptance for a horse which is afterwards discovered to have been dead at time of sale. A promise made under threat of spreading an infamous report. An agreement for the purpose of securing the postponement of the payment of a debt. How many "considerations" are there in a valid contract?

6. The sale of an unfashionable "ready-made" suit of clothes, nothing being said about the style. The sale of a plated watch chain, the dealer permitting the purchaser to suppose it solid gold. The sale of a blind horse, nothing being said about its sight, no effort being made to conceal its blindness, and full opportunity for examination being given to the purchaser. The sale of a house and lot at a certain price, greater than the purchaser had at first intended to give, upon the representation of the seller that he had "been offered" such a sum. The purchase of a piece of land which unknown to the vendor contains a valuable mine, nothing being said to mislead said vendor.

7. An oral order for goods to the value of $500. How does the buyer's receiving part of the goods affect the matter? How else could the contract be made binding? What position does a person assume by endorsing a note? By orally saying that a debt of another will be paid? An oral engagement made December first to work a year beginning January first.



CHAPTER XXXII.

AGENCY.

Definitions.—An agent is a person authorized to act for another in dealing with third parties. The one for whom the agent acts is called the principal.

Authority of Agent.—An agent's authority may be granted orally or in writing. When written it is called a "power of attorney." A general agent has all the authority implied in his employment. A special agent has only such authority as is specifically granted.

Responsibility of the Principal.—Between the principal and his agent responsibility is determined by their contract. Expressly or impliedly the principal agrees to pay for the service rendered.

It is in the principal's relation to third parties that the most important rule of agency appears. It is this: The principal is responsible for the authorized acts of his agent. The theory is that the acts are those of the principal, the agent being merely an instrument. And accordingly, the principal is bound not only by such acts of his agent as he has really authorized, but also by such as he apparently authorizes.

Responsibility of Agent.—The agent is responsible to his principal for any violation of their contract. Expressly or impliedly he is bound to obey orders, to exercise ordinary skill and care in the performance of his duty, and to refrain from putting his interests in adverse relation to those of his principal.

To the third party the agent is not responsible, except in the following cases: When he specifically assumes responsibility, when he conceals the identity of his principal, when he exceeds his authority, or when he acts fraudulently.

Termination of Agency.—An agency terminates at the death of either principal or agent. It may also be terminated by revocation of authority, which takes effect upon receipt of the notice, or by the bankruptcy or lunacy of the principal, judicially declared.

Pertinent Questions.

In the following cases name the principal, the agent, and the third party: A clerk in a store; a man employed to sell goods by sample; a cashier in a bank; a conductor on a train; a commission merchant; a partner acting for a firm, a sheriff.

May a minor act as principal? As agent? A watch left at a jeweler's store for repairs is injured by the workman; who is responsible to the owner? On account of a road overseer's neglect a horse is injured by stepping through a hole in a bridge; to whom shall the owner look for damages? If a person is notified that another claims to represent him as agent and he neglects to repudiate the claim, is he responsible for acts of the claimant as agent?

May an agent having authority to fix prices sell to himself?

May a clerk in a store take goods at regular marked prices?

An agent transacts business after his principal's death but before he has received notice thereof, is the transaction binding upon the heirs?



CHAPTER XXXIII.

PARTNERSHIP.

What it is.—Partnership is the relation existing between persons who have agreed to combine their property or skill for the prosecution of a given enterprise, and to share the profits or losses resulting therefrom.

How Formed.—Partnership being a matter of agreement is subject to the law of contracts. When the agreement is in writing, it is called "articles of copartnership." The articles usually specify the parties and the firm name, the nature and the location of the business to be carried on, the investment of each party, the basis for apportioning profits and losses, and sometimes the duration of the co-partnership. There are generally other provisions, their nature depending upon the circumstances.

Responsibility.—As to each other, the partners have the rights and duties which they agree upon.

As to third parties, the two most important rules of law are: first, that the firm is bound by the acts of each member, in matters pertaining to the firm's business; second, each member is liable for all the debts of the firm.

Dissolution.—If the duration of the partnership is not specified, it may be dissolved by any partner at any time. If its duration is specified, it expires, of course, by limitation or by mutual consent. In either case, the death of a partner dissolves the firm. If a partner becomes insane or acts fraudulently, the partnership may be dissolved by a decree of the court. The sale of an interest (which must have the consent of each partner) dissolves the partnership and forms a new one.

Notice of Dissolution.—That the retiring partners may be freed from responsibility for new debts, if the dissolution be by sale of interest (and this is a very common way), notice of the dissolution must be given to the world, and special notice of the fact must be given to those from whom the firm has been in the habit of buying.

Limited Partnership.—In most states, what is called a limited partnership may be formed, whereby the responsibility of some of the partners may be limited to their investment in the business. By this arrangement the private property of the special partners (as they are called) cannot be taken for debts of the firm.

In such a case, however, it is but just, and the law therefore demands, that notice of the fact of limited responsibility be given and that no appearance of responsibility be assumed. To this end it is required: (a) that the articles of copartnership be in writing, and that they be published and recorded; (b) that the amount contributed by the special partners be actually paid in; (c) that the names of the special partners do not appear in the firm name; (d) that they take no active part in the management of the business.

Pertinent Questions.

Why are partnerships formed? May one person invest money while another invests skill? Is a person who receives a percentage of his sales by way of salary a partner?

Why cannot a partner sell his interest without consulting the other members of the firm? Why may the fraudulent act of a partner dissolve the firm? Why does the death of a member end the firm—that is, why not let his heir succeed to his right in the firm as he succeeds to his real estate?

May the private property of a partner be taken to satisfy the debts of his firm? May the firm's property be taken to satisfy the debt of one of its members? Can men dissolve their debts by dissolving their partnership? If one partner continues the business agreeing to pay all indebtedness of the firm, is the retiring partner released from obligation in relation to the debts? Show the justice of each requirement in case of special partners.



CHAPTER XXXIV.

CORPORATIONS.

Purpose—Partnership enables a number of persons, as we have seen, to accomplish by combining their property and skill what would be unattainable by them acting individually.

But the individual responsibility involved in partnership, and the difficulty of transferring interest, render necessary some other mode of combining capital for carrying on enterprises requiring vast resources, and, from their nature, demanding long time and freedom from interruption for their accomplishment. For instance, no one would dare to assume personal responsibility for the debts of a railroad, nor could such an enterprise be managed if every transfer of interest dissolved the company. The desired limitation of responsibility and facility of transfer of interest are secured by the formation of corporations.

Nature.—But responsibility there must be, or the combination could transact no business. And responsibility depends upon personality—a thing cannot be held responsible. As this personality does not exist aside from the persons of those uniting their resources, it must be created. The creative power is the legislature. The personality created is the corporation. [Footnote: From the Latin corpus, corporis, a body.] A corporation is, therefore, an artificial or fictitious person, created under general law or by a special act of the legislature, [Footnote: This special act defining the powers and duties of the corporation is called its charter.] and capable of acting within prescribed limits as if it were a natural person, but beyond those limits incapable of acting at all.

Management.—The persons who contribute to the capital of the corporation, or company, receive certificates of stock, that is, pieces of paper certifying that said persons own so many shares in the company. The capital, be it remembered, is the property of the corporation, not of the individuals. The number of these stockholders may be large or small, a dozen or a thousand. The general management of corporate business is necessarily entrusted to a small number of persons called directors. These are elected by the stockholders, each share having one vote. The directors select from their own number a president, a secretary, and other necessary officers. These persons and the other agents of the corporation carry out the policy determined upon by the directors.

Why Limited in Powers.—The question suggests itself, Why can a corporation do only certain things? The most obvious answer is, that this is consequent upon its mode of creation. Being a creature of the legislature, it can have only those powers which are specifically or impliedly granted to it. But pushing the matter farther, it may pertinently be asked, Why doesn't the legislature endow it with power to do anything that may properly be done by a natural person? Two reasons, at least, appear. First, from the corporation's standpoint, it is a matter of business prudence to have its purpose and powers defined: (a) to enable it to secure subscribers to its stock, as no one would like to risk his money blindly; and (b) because thus only can the directors be held to accountability. Second, from the standpoint of the public, for whom the legislature acts, the defining is necessary in order that corporations may be controlled and dangerous combinations prevented.

In this connection it may be noted that corporations are granted some privileges not possessed by individuals. For instance, private property such as land may be taken, even against the wishes of the owner, to permit the building of a railroad. This can be done, however, only on the ground of public good, and by giving the owner just compensation.

Responsibility.—A corporation, like any other person is responsible for any contracts that it makes, within its charter. It necessarily acts entirely through agents, hence the law of agency has an important bearing upon all contracts with a corporation.

Debts incurred lie against the corporation, not as a rule against the stockholders individually. Sometimes stockholders are by the charter made liable to limited extent, say to an amount equal to the par value of their stock.

Dissolution.—Some companies are incorporated so that they may last forever. Others are incorporated for a specified time. The latter expire by limitation or by becoming insolvent. A corporation of either kind may secure dissolution by voluntarily surrendering its charter. And sometimes the legislature reserves in the charter the right to dissolve the company under certain conditions.

The affairs of a corporation are usually closed up by a "receiver," who collects the bills, disposes of the property, pays the indebtedness as far as he can, and distributes the residue among the stockholders.

COMPARISON OF PARTNERSHIP WITH CORPORATION.

POINTS OF PARTNERSHIP. CORPORATION. COMPARISON.

1. Status. A collection of natural A fictitious person. persons.

2. Formation. By agreement. By legislative enactment.

3. Powers. Those of natural persons. Only those conferred by law.

4. Debts. All partners liable for all Stockholders not debts. usually liable.

5. Transfer of Dissolves partnership. New stockholder interest by sale succeeds to shares of or death. the old.

Pertinent Questions.

Who constitute the managing body in a school district? In a town? In a village? In a city? In a county? In the state? In the United States? [Footnote: The United States: "Its charter, the constitution.... Its flag the symbol of its power; its seal, of its authority."—Dole.] In a railroad? In a mining company? In a bank? In a church? In a college?

Write a list of all the corporations that you know or have ever heard of, grouping them under the heads public and private.

How could a pastor collect his salary if the church should refuse to pay it?

Could a bank buy a piece of ground "on speculation?" To build its banking-house on? Could a county lend money if it had a surplus? State the general powers of a corporation. Some of the special powers of a bank. Of a city.

A portion of a man's farm is taken for a highway, and he is paid damages; to whom does said land belong? The road intersects the farm, and crossing the road is a brook containing trout, which have been put there and cared for by the farmer; may a boy sit on the public bridge and catch trout from that brook? If the road should be abandoned or lifted, to whom would the use of the land go?



CHAPTER XXXV.

COMMERCIAL PAPER.

Kinds and Uses.—If a man wishes to buy some commodity from another but has not the money to pay for it, he may secure what he wants by giving his written promise to pay at some future time. This written promise, or note, the seller prefers to an oral promise for several reasons, only two of which need be mentioned here: first, because it is prima facie evidence of the debt; and, second, because it may be more easily transferred or handed over to some one else.

If J.M. Johnson, of Saint Paul, owes C.M. Jones, of Chicago, a hundred dollars, and Nelson Blake, of Chicago, owes J.M. Johnson a hundred dollars, it is plain that the risk, expense, time and trouble of sending the money to and from Chicago may be avoided, and the indebtedness wiped out by J.M. Johnson ordering Nelson Blake to pay the hundred dollars to C.M. Jones. The written order to this effect, called a draft, would be sent to C.M. Jones, who would present it for payment to Nelson Blake, and upon receiving his money would turn the draft over to Blake.

To avoid the risk of being robbed, merchants and some others are in the habit of depositing each evening in a bank the receipts of the day, with the understanding that the money will be paid out, at any time, to any person whom they order it paid to. The order on the bank is called a check.

It is very easy to see that these three devices are of immense value to the commercial world; the first by rendering available future resources, and the other two by enabling payments to be made safely.

Definitions.—A note is an unconditional promise in writing, to pay a definite sum of money at a certain time to a specified person.

A draft is an order, written by one person and addressed to another, directing him to pay a definite sum of money at a certain time to a specified third party.

A check is a draft for immediate payment, drawn upon a bank or banker.

In the case of a note, the person who promises to pay is called the maker of the note; and the person named to be paid, the payee.

In the case of a draft or check, the person ordering the payment is called the drawer; the person addressed, the person drawn upon or the drawee; and the person to be paid, the payee.

Negotiability.—The payee in any of these cases may wish to transfer the paper to some other person. For instance, the holder of the note may wish to use the money before it is due, or the payee of a draft may wish to realize without going to the drawee. In either case, the desired accommodation can be secured only by selling the paper to some one else. This ability to be transferred is part of what is meant by the term negotiability.

But this liability to have to pay another person than the one named, cannot be imposed upon the maker or drawer without his consent. This he gives by inserting after the name of the payee the words "or order," or the words "or bearer." In the latter case, whoever holds the paper when it becomes due can collect upon it. In case the former words are used, the paper can be transferred only by indorsement, of which more anon.

A very important characteristic of negotiability is that it enables a person to grant to another rights which he may not himself possess. To illustrate: As between the maker and the payee, a note is a contract, and is binding only if it has all the requisites of a binding contract. Therefore, if there was no consideration, or if the note was obtained by fraud or by intimidation, the payee, knowing these facts, has no right to collect upon the note, and he could not by law compel payment. But with a third party it is different. He sees only the note, and may not— presumably does not—know anything else about the contract. To compel him before buying the note to learn all the details of its history, might be embarrassing to the parties, even where everything is all right, and would certainly delay, perhaps materially, the transfer. Therefore, to enable people to keep their business to themselves, and to facilitate transfers of commercial paper, it has seemed best not to require this investigation. The law presumes that when a person makes a transferable note, he has done so deliberately; and if loss ensues, it says that he must bear it rather than the innocent purchaser of his note.

Conditions of Negotiability.—But this peculiar protection is given, be it observed, only to an innocent purchaser. If in good faith, in the regular course of business, a person comes into possession of commercial paper, negotiable in form, not yet mature, and for which he has given a reasonable consideration, he can collect on it. On the other hand, if he has found the paper or stolen it, or if he has bought it under circumstances calculated to raise a suspicion as to right of the seller, he should not have, and will not by law receive, this privilege. Thus if a man is offered commercial paper of perfectly responsible parties at one-third its value, it would be reasonable to suppose that the person offering it had found or stolen it, and the buyer would obtain only the rights of the person from whom he bought. Or if a note past due is offered for sale, the presumption is that it is paid or that it is for some reason uncollectable, and the purchaser would buy at his peril. In other words, if there is anything on the face of the paper or in the circumstances of the case to warn the purchaser, he buys at his own risk, and secures only such rights as the vendor has.

Transfer.—Negotiable paper with the words "or bearer" is transferable by delivery alone. If made payable to some person "or order," it is transferable only by his indorsement. An "indorsement in full" consists of the signature of the payee and his order that the money be paid to a specified person. An "indorsement in blank" consists simply of the signature of the payee. The effect of the latter mode of indorsing is to make the paper payable to bearer.

Responsibility of Maker.—A note being a contract, the maker of one is responsible to the payee, as has been said, only if all the requisites of a binding contract are present. If the note is negotiable in form, he is responsible to the innocent purchaser of it.

Responsibility of Drawee.—The person drawn upon may know nothing of the draft. He cannot be made a party to a contract without his knowledge and consent. That he may have knowledge of the draft, it must be presented to him. If upon seeing it he is willing to assume the responsibility of paying it when due, he signifies his willingness by writing across the face of the draft the word "accepted," with the date of presentation and his name. The draft thereby becomes his unconditional promise, and he becomes the principal debtor, occupying the position of a maker of a note.

Responsibility of Indorser.—When a person endorses any commercial paper, he not only expresses thereby his consent to the transfer of it, but he also enters into a conditional contract with each person who may afterward come into possession of the paper, whereby he becomes responsible for its payment, if the principal debtor fails to meet his obligation. To fix responsibility upon an indorser, payment must be demanded of the principal debtor on the very day when the obligation matures, and if payment is not made notice of the fact must be sent to the indorser before the end of the following day.

Responsibility of Drawer.—Between the drawer and the payee a draft is a conditional contract, whereby the former impliedly agrees to pay the draft if the person drawn upon does not. His obligation is that of a surety or first indorser. To fix responsibility upon the drawer, the holder of the draft must promptly present it for acceptance to the person drawn upon; then, if it is not accepted, he must immediately notify the drawer.

Forged Paper.—Forgery is the fraudulent making or altering of a written instrument. One whose name is forged cannot be made responsible, since the act is not his. And since money paid under a mistake must be refunded, a person who, deceived by the skill of the forger, should pay the seeming obligation, would be entitled to get his money back.

But every person is bound to use reasonable effort to prevent forgery. Thus, if a merchant writes out a note all but the amount, and authorizes a clerk to put that in at some other time, and the clerk inserts a larger sum, any innocent purchaser can compel the merchant to pay the full amount. In some states it is held that a person who leaves space in an obligation wherein the amount can readily be raised, is bound to stand the loss caused by his negligence.

Accommodation Paper.—A man may be perfectly willing to lend a friend some money and yet be unable to do so. He may, however, in any one of several ways, make it possible for his friend to obtain the money. Thus A, wishing to accommodate his friend B, may make a note payable to B's order; or he may endorse B's note; or he may make a draft payable to B's order; or he may accept B's draft on him. By selling the paper, B secures the money desired. The implied contract between A and B is that B will pay the obligation.

In none of these cases could B compel A to pay him any money, because the contract between them lacks consideration. But A would be responsible to an innocent purchaser, because there is nothing on the face of the paper to indicate the defect. And he would be responsible even to a purchaser who knows the paper to be accommodation, because by signing he binds himself to pay if B does not, and his signature is what enables the sale to be made.

Certified Checks.—Business men make most of their payments by check. If the receiver of a check does not, for any reason, wish the money, he may deposit the check in the bank as if it were cash. If he is going away from home, or if he wishes to make a payment in some other place, he may save the expense of a draft, and make a check equally as acceptable, by getting the cashier of the bank to "certify" it, that is to state officially that the drawer has the money in the bank. This he does by writing across the face of the draft the word "Good," with his signature as cashier. When this is done the responsibility rests primarily on the bank. It occupies the position of the acceptor of a draft.

Pertinent Questions.

Two of the following are valid notes; which two? The others are not; Why? 1. March 5, 1890, I promise to pay John Smith one hundred dollars, if he is then living.—William Jones. 2. On or before March 5, 1890, I promise to pay John Smith one hundred bushels of wheat.—William Jones. 3. On March 5, 1890, I promise to pay John Smith whatever is then due him.— William Jones. 4. When he comes of age, I promise to pay John Smith one hundred dollars.—William Jones. 5. March 5, 1890, I promise to pay one hundred dollars.—William Jones. 6. One year after date, I promise to pay to John Smith one hundred dollars.—William Jones. 7. Mankato, Minn., December 11, 1888. One year after date I promise to pay John Smith one hundred dollars. 8. On the death of his father, I promise to pay John Smith one hundred dollars.—William Jones. 9. On March 5, 1890, I, William Jones, promise to pay John Smith one hundred dollars.

How many parties may there be to a note? How many, at least, must there be? As between them, must there be consideration to make it binding? Must the words "for value received" appear on the note? A note being a contract, what things are necessary to make it binding? Write two valid notes in different forms. Write a negotiable note transferable without indorsement. A note transferable by indorsement. Which is safer to carry in the pocket? Why? Which imposes the less responsibility if transferred? If you were taking a note payable to bearer, would you require the person from whom you were getting it to indorse it? A man has some non-negotiable notes; if he dies can his heir collect them? A note payable "to order" is indorsed in blank; to whom is it payable? May a note payable "to bearer" be made payable only "to order?" When does a note cease to be negotiable? Under what circumstances may a person have to pay a note which he has already paid? What is a "greenback?"

How many persons, at least, must there be to an accepted draft? When does the responsibility of the drawer begin? That of the person drawn upon? How does the acceptance of a draft affect the responsibility of the drawer? If the draft is not accepted, to whom shall the holder look for pay? Are drafts negotiable before acceptance?

Compare and contrast a note and a draft. A draft and a check. Is the bank under any obligation to the holder of an uncertified check? Does certifying a check release the drawer of it? Are checks negotiable?

What responsibility does an indorser assume in case of a note? Of an unaccepted draft? Of an accepted draft? Of a check? What does "without recourse" mean? To how many persons is the maker of a note responsible? The first indorser? The second? How can the first indorser be distinguished from the second? To whom is the second indorser not responsible?

Who are not responsible to the holder of a negotiable paper unless notified? Who are responsible without notice? What principle do you discover? When is a demand note due? A check? A time note? A sight draft? A time draft?

What should you do, and why, in the following cases:

1. When you pay a note? 2. When you make a partial payment on a note? 3. If you should lose a note? 4. If you have a note without indorsees, to render the maker responsible? 5. If you hold a note having indorsers, to render the indorsers responsible? 6. If you hold an unaccepted draft? 7. In case acceptance is refused? 8. If you hold an accepted draft? 9. If the acceptor fails to pay when the paper becomes due? 10. If you hold an uncertified check, in order to render the drawer responsible? 11. If it is indorsed, to make the indorsers responsible? 12. If you have a certified check, to make the bank responsible? 13. If you are a third indorser of a note, whom can you hold responsible in case the paper is dishonored, and how? 14. If you have a bearer note and you wish to transfer it without assuming responsibility? 15. How if it is an order note?



APPENDIX A.—FORMS.

TOWN BUSINESS.

I. Organization of a Town.

PETITION.

To the board of county commissioners of the county of , : The undersigned, a majority of the legal voters of congressional township number north, of range number west, in said county, containing not less than twenty-five legal voters, hereby petition your honorable board to be organized as a new town under the township organization law, and respectfully ask that you forthwith proceed to fix and determine the boundaries of such new town and to name the same (giving the proposed name.)

(Dated, and signed by a majority of all the legal voters in the town.)

COMMISSIONERS' REPORT.

State of , county of , ss.

Upon receiving a petition of a majority of all the legal voters of congressional township number north, of range number west, in said county, asking that the same be organized as a new town under the township organization law, to be named , we, the county commissioners of said county did, on the day of A.D. 18, proceed to fix the boundaries of such new town and name the same , in accordance with the said petition, and designated as the place for holding the first town meeting in such town, to be held on , 18. The boundaries of said town of , as fixed and established by us, are as follows: (Beginning at the southeast corner of section , town north, of range west, thence west on the township line to the southwest corner of section , town and range as aforesaid, thence north, &c., giving the boundary lines complete.) Given under our hands this day of , 18.

[Auditor's official seal.]

(Signed by the Commissioners.)

Attest: O.J., County Auditor.



II. Elections.

NOTICE OF ANNUAL ELECTION.

Notice is hereby given, that on Tuesday, the day of November, 18, at , in the election district composed of the , in the county of , and state of , an election will be held for (here name the state, judicial, congressional, legislative and county officers to be elected); (if constitutional amendments are to be submitted, add:) also the following amendments to the constitution of the state will be submitted to the people for their approval or rejection, viz.: amendment to section , article , of the constitution (naming each one proposed); (and if any special matters, such as removal of county seat, &c., are to be voted on, then specifically state them); which election will be opened at nine o'clock in the morning, and will continue open until five o'clock in the afternoon of the same day, at which time the polls will be closed.

Dated at __ this __ day of October, 18_.

C.O.S., Town Clerk (or City or Village Recorder.)

REGISTER POLL LIST.

List of qualified electors in the election district composed of the of , in the county of , and state of , for an election to be held in the said election district, on Tuesday, the day of November, 18:

Adams, James Little, Joseph Babcock, George Mann, Oscar.

(Write the surnames in alphabetical order, and leave sufficient space between the alphabetical letters to insert all additional names.)

Notice is hereby given that the undersigned judges of election of said election district, will be present at the , in said , at the times named below, for the purpose of making corrections in the foregoing list, viz.: On "Wednesday, October , and (here insert the days and times of the day they are to meet), from 9 o'clock A.M. till 4 o'clock P.M. of each day, and also on the morning of election day, from 7 o'clock A.M. to 9 o'clock A.M."

Given under our hands this day of October, 18.

(Signed by all the judges of election.)

MINUTES OF TOWN MEETING.

At the annual (special) town meeting held in the town of , county of , state of , at , on the day of , 18 , the meeting was called to order by R.G., town clerk. M.J.H. was then chosen to preside as moderator of the meeting.

The moderator, at the opening of the meeting, stated the business to be transacted and the order of the same as follows: That the business to be transacted would be to elect three supervisors, &c., (stating the officers to be elected,) and to do any other business proper to be done at said meeting.

That said business would be entertained in the following order: 1st—The election by ballot of town officers, the polls to be kept open throughout the day. 2d—At one o'clock P.M., election of overseers of highways for each road district in the town. 3d—That immediately following the election of overseers of highways the general business of the town would be taken up and proceeded with until disposed of.

Proclamation of opening the polls was then made by the moderator and the polls opened and the election of town officers proceeded.

The hour of one o'clock P.M. having arrived and the general business of the town being now in order, the following named persons were elected, by ayes and noes, overseers of highways for the ensuing year in the following road districts, viz.: (here give the numbers of the road districts and the names of the persons elected overseers thereof.)

A.B. was elected poundmaster of said town. On motion, ordered that a pound, &c., (give the location, cost, &c., of pound, if ordered.)

The following three places were determined and designated by the voters present as the most public places in said town for the posting up of legal notices, and suitable posts for such purpose were ordered to be erected or maintained by the supervisors at each of such places, viz.: (describe the places.)

The supervisors submitted to the electors a report of all the places at which guide posts are erected and maintained within the town, and of all places at which, in their opinion, they ought to be erected and maintained. Thereupon, it was ordered that guide posts be erected and maintained at the following places, viz.: (describe the places.)

The town clerk read publicly the report of the board of auditors, including a statement of the fiscal concerns of the town and an estimate of the sum necessary for the current and incidental expenses of the town for the ensuing year.

The supervisors rendered an account in writing, stating the labor assessed and performed in the town, the sums received by them for fines and commutation, &c.; a statement of the improvements necessary to be made on the roads and bridges, and an estimate of the probable expense of making such improvements beyond that of the labor to be assessed for this year, that the road tax will accomplish; also a statement in writing of all expenses and damages in consequence of laying out, altering or discontinuing roads.

On motion, it was ordered that the following sums of money be raised by tax upon the taxable property in said town for the following purposes for the current year: (enter the specific amounts carefully.)

On motion of H.S.H.H., the following by-law was adopted, ayes , noes : "It is hereby ordered and determined that it shall be lawful for horses, mules and asses to run at large in the town of , in the day time, from the first day of April to the 15th day of October, in each year, until further ordered."

On motion, it was resolved, &c., (set forth in order each resolution or order as it transpires.)

The next annual town meeting was ordered to be held at (naming the place.)

At five o'clock the polls were closed, proclamation thereof being made by the moderator. The judges then proceeded to publicly canvass the votes, and the persons having the greatest number of votes for the respective offices voted for were declared elected.

STATEMENT OF RESULT OF CANVASS. (To be read publicly.)

The following is a statement of the result of the canvass of votes by ballot for the election of officers at the annual town meeting in the of , county of , and state of , March , 18, as publicly canvassed by the judges at said meeting:

H.B. had votes for chairman of supervisors.

J.L. had votes for chairman of supervisors.

H.B. was declared elected chairman of supervisors.

(In this way give a statement of the votes cast for each officer.)

On motion the meeting adjourned without day.

J.H.T., C.O.C., Judges

Attest: R.G., Clerk.

OFFICIAL OATH.

State of , county of , town of , ss.

I, J.A., do solemnly swear (or affirm) that I will support the constitution of the United States and of the state of , and faithfully discharge the duties of the office of of the town of , in the county of , and state of , to the best of my ability. J.A.

Subscribed and sworn to before me this day of A.D. 18

T.S., Justice of the Peace.

OFFICIAL BOND.

Know all men by these presents, that we, R.S., as principal, and B.B.S. and J.E. as sureties, all of the county of , and state of , are held and firmly bound unto J.D.E., E.C., and E.E., as supervisors of the town of , in said county, and their successors in office, in the sum of (five hundred) dollars, lawful money of the United States of America, to be paid to them as such supervisors, their successors or assigns; for which payment well and truly to be made, we bind ourselves, our heirs, executors and administrators, jointly and severally, firmly by these presents. Sealed with our seals dated the day of , 18.

The condition of the above obligation is such, that whereas, the above bounded R.S. was, on the day of , A.D. 18, duly elected (or appointed) in and for the town of , in said county, for the term of , and is about to enter upon the duties of said office; now, therefore, if the said R.S. shall, will and does faithfully discharge all his duties as such in and for said town, then the above obligation to be void, otherwise to remain in full force and virtue.

R.S. [Seal.] B.B.S. [Seal.] J.E. [Seal.]

Sealed and delivered in presence of

J.B. and G.J.

State of , County of , ss.

On this day of , A.D. 18, before me, the subscriber, a in and for said county, personally appeared to me known to be the person described in, and who executed the foregoing instrument, and acknowledged that he executed the same as free act and deed.

County of , ss. B.B.S. and J.E., being duly sworn, say each for himself, that he is surety in the within bond; that he is a resident and freeholder of the state of , and that he is worth the sum of (five hundred) dollars over and above his debts and liabilities, and exclusive of property exempt from execution.

B.B.S. and J.E.

Subscribed and sworn to before me, this day of , 18.

W.R.P., Justice of the Peace.

(After folding the instrument the approving officer must indorse on its back the following words:) "I hereby approve the within bond and the sureties therein contained, this day of , 18."

(Signed officially by the approving officer.)

NOTICE TO CLERK OF DISTRICT COURT OF ELECTION OF JUSTICE OF THE PEACE.

State of , county of , town of , ss.

To H.A.B., (address,) clerk of the district court of the county of .

You are hereby notified that at the town meeting held in the town of , in the county of , and state of , on the day of March, A.D. 18, P.E.C. was duly elected to the office of justice of the peace, for the term of two years. (If elected to fill a vacancy, state who was the last incumbent.) Given under my hand, this day of March, A.D. 18.

A.R., Town Clerk.



III. Roads.

PETITION.

To the supervisors of the town of , in the county of , and state of :

The undersigned, legal voters (who own real estate, or who occupy real estate under the homestead or pre-emption laws of the United States, or under contract from the state of , within one mile), (or who are freeholders and residents of the town within two miles) of the road to be laid out (or altered, or discontinued), hereby petition you to lay out a new road (or alter, or discontinue a road) as follows: Beginning (give the point at which it is to commence, its general course and its termination.)

The description of the lands over which the said (new) road passes, and the names of the owners thereof which are known, as well as the lands whose owners are unknown, are as follows: (Give the owners of the lands that are known and describe the lands whose owners are unknown.)

And your petitioners pray that you will proceed to lay out said new road and cause the same to be opened (or alter, or discontinue said road) according to law. (Dated, and signed by at least six resident legal voters owning real estate or occupying United States or school lands within one mile, or at least eight resident freeholders within two miles of the road.)

PROOF OF POSTING.

State of , county of , town of , ss.

D.S. being sworn, says, that on the _ day of __, 18_, he posted copies of the within petition in three of the most public places of said town, to-wit: At (naming the places.) _____ D.S.

Subscribed and sworn to before me this day of , 18.

E.W.R., Justice of the Peace.

SUPERVISORS' NOTICE OF HEARING.

Notice is hereby given that the supervisors of the town of , in the county of , and state of , will meet on the day of A.D. 18, at o'clock in the noon, at , in said town, for the purpose of personally examining the route named below, proposed for a new (or altering, or discontinuing a) road, and for hearing all reasons for or against said proposed laying out (or altering, or discontinuance) and deciding upon said application. Said proposed new road (or alteration, or discontinuance) as described in the petition is as follows: (Here give the description of the route as contained in the petition.)

The several tracts of land through which said road will pass (passes) and the occupants thereof, as nearly as we can determine the same, are as follows: (Give a description of the lands and the names of the occupants, and if any have no occupants and the owners are unknown, state that fact.) (Dated, and signed officially by the supervisors.)

PROOF OF POSTING NOTICE.

State of , county of , town of , ss.

D.S. being sworn, says that on the day of , A.D. 18, he served the within notice upon each of the occupants of the land through which the within described road may pass, by leaving copies as follows: To A.B. personally; to C.D. at his usual place of abode with E.F., a person of suitable age and discretion, (describing each service.)

That, also, on the day of A.D. 18, he posted copies of the within notice in three public places in said town, to-wit: At (naming the places.)

D.S.

Subscribed and sworn to before me this day of , 18.

E.W.R., Justice of the Peace.

SUPERVISOR'S ROAD ORDER.

State of , county of , town of , ss.

Whereas, upon the petition of (six) legal voters, owning real estate, or occupying real estate under the homestead or pre-emption laws of the United States, or under contract from the state of , within one mile (or eight legal voters, freeholders and residents of the town, within two miles), of the road proposed in said petition to be laid out (altered or discontinued), copies of said petition having been first duly posted up in three of the most public places of said town at least twenty days before any action was had in relation thereto, proof of which posting was duly shown to us by affidavit; Which said proposed new road (alteration or discontinuance) is set forth and described in said petition as follows, viz.: Beginning, etc., (set forth the road as given in the petition.)

And whereas, upon receiving said petition we did, within thirty days thereafter, make out a notice and fix therein a time and place at which we would meet and decide upon such application, to-wit: on the day of , A.D. 18, at , causing copies of such notice to be posted in three public places in said town, at least ten days previous to such meeting; and having met at such time and place as above named in said notice, and being satisfied that the applicant had, at least ten days previous to said time, caused said notice of time and place of hearing to be given to all the occupants of the land through which such highway might pass, by serving the same personally or by copy left at the usual place of abode of each of said occupants, proof of which was shown by affidavit, we proceeded to examine personally such highway and heard any and all reasons for or against laying out (altering or discontinuing) the same, and being of the opinion that such laying out (or altering, or discontinuing,) was necessary and proper and that the public interest would be promoted thereby, we granted the prayer of said petitioners and determined to lay out (alter or discontinue) said road, the description of which as so laid out is as follows, to-wit: Beginning, &c.

It is therefore ordered and determined that a road be and the same is hereby laid out (or altered) and established according to the description last aforesaid, and it is hereby declared to be a public highway, four rods wide, the said description above given being the center of said road.

Given under our hands, this, &c., (dated and signed officially by the supervisors.)

SURVEYOR'S REPORT.

To the supervisors of the town of , county of , and state of :

The undersigned having been employed by you to make a survey of a road in said town would report that the following is a correct survey thereof, as made by me under your directions, to-wit: (Give an accurate description of the road by course and distance) and that below is a correct plot of said road according to said survey. (Dated and signed.)

RELEASE OF DAMAGES.

State of , county of , town of , ss.:

Whereas, a road was laid out (or altered or discontinued) on the day of , A.D. 18, by the supervisors of the said town of , on the petition of (six) legal voters, owning real estate, or occupying real estate under the homestead or pre-emption laws of the United States, or under contract from the state of , within one mile (or eight legal voters freeholders and residents of the town within two miles) of said road; which said road (or alteration, or discontinuance) is set forth and described in the supervisors' order, as follows, viz.: Beginning (describe the road as in the order laying it out); which said road passes through certain lands owned by us as described below:

Now, therefore, know all men by these presents, that we, the owners of the lands described below, for value received, do hereby * release all claims to damages sustained by us by reason of the laying out (or altering, or discontinuing) and opening said road through our lands, viz.: (Here give a description of the lands and their owners' names.)*

In witness whereof, we have hereunto set our hands and seals this day of , A.D. 18. (Signatures and seals.) Signed, sealed and delivered in presence of two witnesses.

AGREEMENT AS TO DAMAGES.

(Use form "Release of Damages" to the * then substitute to the next * as follows:) do hereby "agree to and with the said supervisors that the damages sustained by us by reason of laying out (or altering, or discontinuing) said road be ascertained and fixed, and the same are hereby ascertained and fixed as follows: (Describe the lands, give the owners' names, and the amounts agreed on;" and conclude as in form "Release of Damages.")

AWARD OF DAMAGES.

State of , county of , town of , ss.:

Whereas, a road was laid out (or altered or discontinued) on the day of , A.D. 18, by the undersigned supervisors of the said town of , on the petition of (six) legal voters, owning real estate, or occupying real estate under the homestead or pre-emption laws of the United States, or under contract from the state of , within one mile (or eight legal voters, freeholders and residents of the town within two miles) of said road; which said road (or alteration, or discontinuance) is set forth and described in the supervisors' order as follows, viz.: Beginning (describe the road as in the order laying it out.) And not being able to agree with the owners of the following described lands, claiming damages by reason of said highway passing through, we have assessed the damages to each of such individual claimants with whom we could not agree, and awarded damages to the owners of such lands through which such highway passes as are unknown, at what we deemed just and right; taking into account and estimating the advantages and benefits the road will confer on the claimants and owners, as well as the disadvantages. We have assessed and awarded damages as follows:

(Here give a particular description of each tract of land and its owner, if known; but if not known, state that fact also.)

And in case of the following lands and claimants for damages, we estimate that the advantages and benefits said road will confer on them are equal to all damages sustained by them by reason of laying out (or altering, or discontinuing) said road, to-wit: (Set forth lands and owners as far as known; and describe the unknown lands, stating that the owners are unknown.) (Dated, and signed by the supervisors.)

APPLICATION FOR JURY.

State of , county of , town of , ss.

To J.P., justice of the peace in and for said county:

I, J.A.B., of said town, feeling myself aggrieved by the determination (award of damages) made by the supervisors of said town (county commissioners of said county) by their order bearing date the day of , A.D. 18, in laying out (altering or discontinuing) (or refusing to lay out, alter or discontinue) a highway in said town (county), do hereby appeal to you for a jury to be summoned by you to hear and determine such appeal.

The highway (alteration or discontinuance) in question is described in said order, filed in the town clerk's (county auditor's) office of said town (county) , A.D. 18, as follows: (describe the road, as in the order on file), which said road passes through lands owned by me, viz.: (describing them.)

The grounds upon which this appeal is brought, are: (to recover $80 damages to my said land by reason of such laying out, instead of $40 as awarded in said order) (or, in relation to the laying out, or altering, or discontinuing said highway;) (or their refusal to lay out, or alter, or discontinue said highway;) (or said appeal is brought to reverse entirely the decision of the said supervisors or commissioners;) (or is brought to reverse that part of their order [specifying which part,] &c.) (Dated and signed by the appellant.)



JUSTICE COURT.

I. Civil Suit.

SUMMONS.

State of __, }ss. County of _ }

[Footnote: This brace of lines, giving the state and county as introductory to a process, certificate, affidavit or other paper, is called a "venue," and should be inserted wherever the word (Venue) is expressed in forms given hereafter.]

The state of to the sheriff or any constable of said county:

You are hereby commanded to summon A.M., if he shall be found in your county, to be and appear before the undersigned, one of the justices of the peace in and for said county, on the day of 18, at o'clock in the noon, at my office in the , in said county, to answer to J.T. in a civil action; and have you then and there this writ.

Given under my hand this day of , A.D. 18.

W.D.D., Justice of the Peace.

CONSTABLE'S RETURN.

(Venue as in Summons.)

I hereby certify that I personally served the within summons upon the within named defendant, by reading the same to him, in said county, on the _ day of __, 18__.

Fees—Mileage, 8 miles, - - .80 Service, - - - - - - - - - .15 — .95

G.M.G., Constable.

COMPLAINT.

State of } ss. In Justice Court, County of } Before W.D.D., Justice of the Peace. J.T., plaintiff, against A.M., defendant.

[Footnote: All the affidavits, pleadings, and other papers filed by parties in an action should be "entitled," that is to say, should begin with a caption similar to the above, giving the state and county, name of justice, and the names of the parties, plaintiff and defendant, to the action. This caption (title of cause) is to be inserted in every form given hereafter, wherever it is so expressed.]

The complaint of the plaintiff shows to this court that at , in the state of , on the day of , 18, the defendant made his promissory note in writing, dated on that day, and thereby promised to pay to the plaintiff (one year after date) the sum of (eighty) dollars, for value received, with interest thereon from the said date at the rate of (ten) per cent, per annum until fully paid, and delivered the same to the plaintiff.

That the plaintiff is now the holder and owner of said note; that the same has not been paid, nor any part thereof; but the defendant is now justly indebted to the plaintiff thereon in the sum of (eighty) dollars, with interest as aforesaid.

Wherefore, the plaintiff demands judgment against the defendant for the sum of (eighty-nine) dollars and (sixty) cents, with costs of suit.

J.T. (Venue.)

J.T., the plaintiff (or defendant) in this action, being duly sworn, says that the foregoing complaint (or answer, or reply,) is true, to his own knowledge, except as to those matters stated on his information and belief, and as to those matters, that he believes it to be true.

J.T. (Jurat.)

ANSWER.

(Title of cause.)

The answer of the defendant to the complaint herein, shows to this court:

1. That he admits the making and delivering of the note therein stated, but denies each and every other allegation therein contained.

2. And for a further defense this defendant shows that on the day of , 18, he bought (a horse) of the plaintiff for the sum of (one hundred and thirty) dollars, and paid him (fifty) dollars in money, and the note of (eighty) dollars described in the complaint; which (horse), by the contract of sale, the plaintiff warranted to the defendant to be sound; and the defendant further states that the said (horse) was unsound at the time, whereby the defendant sustained damage in the sum of (one hundred) dollars.

Wherefore he asks that said amount of damage be set off against the amount of said note, and demands judgment for the balance of (twenty) dollars, besides costs of suit.

A.M. (Verified.)

REPLY.

(Title of cause.)

The reply of the plaintiff to the facts set forth in the answer of the defendant, denies each and every allegation therein contained.