# The New Student's Reference Work/Courts of Justice

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​Courts of Justice. Courts of justice in primitive times either were the people assembled or the king and his advisers. Their activity has always been of two kinds: either to punish or to arbitrate. Criminal cases are those in which the community punishes the offender; civil cases, those in which the community decides a dispute. In early days the court was all important; but when the community entrusted justice to a few specially selected men, it laid down laws by which they should be in part guided; and those selected men laid down further rules to guide their successors. So that now a court of justice is always subordinate to a system of law and precedents, which it may not alter, but which it must interpret to fit the case before it. In the early Roman republic the people's assembly, the comitia, tried all important cases. In the Roman empire there was established a regular system of courts, in which we may distinguish courts of original jurisdiction and courts of appeal. The former try cases at first hand. An appeal may be taken only from an inferior to a superior court. The Romans also established a distinction still preserved between common law and equity; the former being the laws and customs current in the community, and the latter principles of justice laid down by judges at various times and finally brought together in a system.
Our Teutonic ancestors preserved through the middle ages the right of being tried, not indeed by the whole people, but by some of them, usually six or more, of about the same rank as the accused. That is, they were his peers. This trial by jury Englishmen especially held precious, and we in America still regard it as necessary to securing justice. (See the Constitution, Article III, Section 2, and Amendments V, VI and VII). On the continent of Europe, except in the cities, the model generally followed was that of the courts of the church, in which the essential thing was a trained judge. Since the French Revolution, however, the jury-system has become common on the continent.
As our system of courts is largely derived from that of England, we may note ​that in that country the lowest court is everywhere the justice of the peace, who in the cities is called a police-magistrate. He deals chiefly with minor offenses and also settles many civil disputes in small matters. But disputes concerning matters that must be entered on the public and permanent records, such as the right to real estate, wills, divorces, etc., are referred at once to local courts of record, the borough or county courts. These are called inferior courts. These courts also deal with offenses of greater importance.
Since 1873 the superior courts include the Supreme Court. This includes “His Majesty's High Court of Justice,” which has such divisions as the Chancery division (dealing chiefly with cases of equity), the Kings Bench (or common law division), the probate (wills) and the admiralty (navigation) divisions. All these courts have original jurisdiction. The Court of Appeals includes several divisional courts, and also a final Court of Appeals, the highest regular court in the Kingdom. But in some cases the matter may be appealed to the House of Lords, and in cases affecting India, the colonies and foreign countries the Privy Council is the final court.
In England all judges are appointed, and appointed for life. The English believe with some reason that they have thereby secured a more honest and a more able administration of justice.
The United States courts either are Federal or state courts. In state courts, except that the judges or justices are elected by the people, in most cases for a term of years, the lower courts are very like those of England, both in name and in powers. In some states, the county-judges receive such names as judge of quarter-sessions. But the essential point is that he is a judge of record and that he tries more important cases but not, as a rule, the most important cases.
In some states these county-courts have, besides the above powers, those of a circuit or superior court. Commonly, however, the superior or circuit-courts are distinct. They are elected by a larger division of the state, containing several counties, and for longer terms. They have original jurisdiction in the most important cases. There is finally a system of courts of appeal, including two or more divisional courts, and then a final court of impeachment for the trial of judges and of the executive. The distinction between courts of law and courts of equity is preserved only in a few states. Most states have a special county-judge for dealing with the property of persons deceased. His court has various names, as surrogate's, prerogative or orphan's court. In general, the higher judges are elected or appointed for longer terms. In many states they hold office for life and during good behavior. In a few cases they are elected, not by the people, but by the legislature. In a few others the governor appoints them.
Federal courts include the senate as a court of impeachment (see Congress), the Supreme Court, the Court of Claims, Commerce-Court and District-Courts. The Supreme Court consists of nine judges, the Chief-Justice and eight associates; but the number may be increased at the will of Congress; which also may, on the death or retirement of a justice, refuse to provide for a successor. The justices are nominated by the president and confirmed by the senate. They are appointed for life, but may be removed by impeachment. All federal judges are thus appointed. The supreme court was established by the constitution, and cannot be abolished by Congress; but the circuit and district-courts as well as the court of claims may be so abolished. The supreme court sits at Washington from October to July each year. There are nine circuit-courts, to each of which a supreme-court justice is assigned. There are 25 circuit-judges (1903). Each circuit has two kinds of courts: (1) a court of original jurisdiction, which may consist of the supreme-court justice of the circuit, or a circuit-judge, or a district-judge of the circuit or any two of them; (2) a circuit-court of appeals, to which cases from the first class or from district-courts may be appealed. This consists of three judges of the circuit, but must not include the judge who tried the case. There are 69 district-courts, with a judge, clerk, marshal and attorney. Appeals may be made from the district-court to the circuit-court of appeal; and in important cases from that court to the supreme court. The court of claims deals with claims of private persons against the Federal government; appeals from its decisions are direct to the supreme court. The courts in the territories and in the District of Columbia are established by Congress, but are not Federal courts. The judges serve for four years; whereas all Federal judges are appointed for life. The Federal courts may only try cases which are directly removed by the constitution from the decision of the state-courts. Wherever a state-court faces the question of whether a Federal treaty or statute or act of authority is valid or applicacable to a case in dispute, and decides that it is not valid or is not applicable, then the person who claims that it is, has the right of appeal to the Federal court, as a state is not competent to decide on such a matter. However, no person has the right to force a state into the courts (Eleventh Amendment). In all criminal cases and suits at common law before a Federal court, a Federal jury must be summoned to try the ​case. The supreme court tries all cases concerning ambassadors and other ministers from foreign countries and all cases where a state brings action against another state or the citizens of another state or a foreign country. In these cases the suit is at once brought before the supreme court; but in other cases—which include, besides those mentioned already, cases that involve laws of navigation and controversies wherein the United States is a party—in all such cases the state-courts or lower Federal courts must try the matter first, and appeal may then be made according to the principles already mentioned.
The Federal courts do not create laws, and are bound even more strictly than state-courts to interpreting the law, viz., the constitution and the enactments of Congress, always preserving the sovereignty of the constitution. It is wrong to speak of the supreme court as superior to Congress, in contrast with the British courts, which are subordinate to Parliament. The difference is that in England the Parliament is superior to all authority whatsoever, there being no constitution to overrule it, while in America, Congress and the supreme court alike are subject to the constitution. Of course the will of the people is the final judge in both countries. At the same time, because the supreme court has the duty of interpreting the constitution, which needs a great deal of interpreting to apply it to all the changes of modern life, it has in fact a great deal to say as to what regulations shall govern us. For example, the constitution does not forbid, explicitly, a graduated income-tax; but the supreme court forbids it by its interpretation of the constitution. The constitution being difficult to amend, that interpretation, and nothing else, prevented at one time the collecting of such a tax.
In like manner the state-courts of every state have the power of interpreting the constitution of the state and of deciding whether the acts of the legislature and executive are in accordance with it. Whenever Federal or state-courts decide against the constitutionality of an act, it is void, as if it had never been passed or done. But it is the rule that where there is doubt in the matter, the benefit of the doubt is to be given to the act or statute.