# 1911 Encyclopædia Britannica/Court

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​COURT (from the O. Fr. court, Late Lat. cortis, curtis, a popular form of class. Lat. cohors, gen. cohortis; the mod. Fr. form cour is due to the influence of the Lat. curia, the word used in medieval documents to translate “court” in the feudal sense), a word originally denoting an enclosed place, and so surviving in its architectural sense (courtyard, &c.), but chiefly used as a general term for judicial tribunals and in the special sense of the household of the king, called “the court.” All law courts were not, however, purely judicial in character; the old county court, for instance, was the assembly of the freeholders of the county in which representatives and certain officers were elected. Such assemblies in early times exercised political and legislative as well as judicial functions. But these have now been almost entirely separated everywhere, and only judicial bodies are now usually called courts. In every court, says Blackstone, there must be three parts,—an actor or plaintiff, reus or defendant, and judex, or judge.
The language of legal fictions, which English lawyers invariably use in all constitutional subjects, makes the king the ultimate source of all judicial authority, and assumes his personal presence in all the courts.
“As by our excellent constitution,” says Blackstone, “the sole executive power of the laws is vested in the person of the king, it will follow that all courts of justice, which are the medium by which he administers the laws, are derived from the power of the crown. For whether created by act of parliament or letters patent, or subsisting by prescription (the only methods by which any court of judicature can exist), the king’s consent in the two former is expressly, in the latter impliedly given. In all these courts the king is supposed in contemplation of law to be always present; but as that is in fact impossible, he is then represented by his judges, whose power is only an emanation of the royal prerogative.”
These words might give a false impression of the historical and legal relations of the courts and the crown, if it is not remembered that they are nothing more than the expression of a venerable fiction. The administration of justice was, indeed, one of the functions of the king in early times; the king himself sat on circuit so late as the reign of Edward IV.; and even after regular tribunals were established, a reserve of judicial power still remained in the king and his council, in the exercise of which it was possible for the king to participate personally. The last judicial act of an English king, if such it can be called, was that by which James I. settled the dispute between the court of chancery and courts of common law. Since the establishment of parliamentary government the courts take their law directly from the legislature, and the king is only connected with them indirectly as a member of the legislative body. The king’s name, however, is still used in this as in other departments of state action. The courts exercising jurisdiction in England are divided by certain features which may here be briefly indicated.
We may distinguish between (1) superior and inferior courts. The former are the courts of common law and the court of chancery, now High Court of Justice. The latter are the local or district courts, county courts, &c. (2) Courts of record and courts not of record. “A court of record is one whereof the acts and judicial proceedings are enrolled for a perpetual memory and testimony, which rolls are called the records of the court, and are of such high and supereminent authority that their truth is not to be called in question. For it is a settled rule and maxim that nothing shall be averred against a record, nor shall any plea or even proof be admitted to the contrary. And if the existence of the record shall be denied it shall be tried by nothing but itself; that is, upon bare inspection whether there be any such record or no; else there would be no end of disputes. All courts of record are the courts of the sovereign in right of the crown and royal dignity, and therefore any court of record has authority to fine and imprison for contempt of its authority” (Stephen’s Blackstone). (3) Courts may also be distinguished as civil or criminal. (4) A further distinction is to be made between courts of first instance and courts of appeal. In the former the first hearing in any judicial proceeding takes place; in the latter the judgment of the first court is brought under review. Of the superior courts, the High Court of Justice in its various divisions is a court of first instance. Over it is the court of appeal, and over that again the House of Lords. The High Court of Justice is (through divisional courts) a court of appeal for inferior courts. (5) There is a special class of local courts, which do not appear to fall within the description of either superior or inferior courts. Some, while administering the ordinary municipal law, have or had jurisdiction exclusive of their superior courts; such were the common pleas of Durham and Lancaster. Others have concurrent jurisdiction with the superior courts; such are the lord mayor’s court of London, the passage court of Liverpool, &c.
The distribution of judicial business among the various courts of law in England may be exhibited as follows.
Criminal Courts.—(1) The lowest is that of the justice of the peace, sitting in petty sessions of two or more, to determine in a summary way certain specified minor offences. In populous districts, such as London, Manchester, &c., stipendiary magistrates are appointed, generally with enlarged powers. Besides punishing by summary conviction, justices may commit prisoners for trial at the assizes. (2) The justices in quarter sessions are commissioned to determine felonies and other offences. An act of 1842 (5 & 6 Vict. c. 38) contains a list of offences not triable at quarter sessions—treason, murder, forgery, bigamy, &c. (see Quarter Sessions, Court of). The corresponding court in a borough is presided over by a recorder. (3) The more serious offences are reserved for the judges of the superior courts sitting under a commission of oyer and terminer or gaol delivery for each county. The assize courts, as they are called, sit in general in each county twice a year, following the division of circuits; but additional assizes are also held under acts of 1876 and 1877, which permit several counties to be united together for that purpose (see Circuit). London, which occupies an exceptional position in all matters of judicature, has a high criminal court of its own, established by the Central Criminal Court Act 1834, under the name of the central criminal court. Its judges usually present are a rota selected from the superior judges of common law, the recorder, common serjeant, and the judge of the City of London court. The criminal appeal court, to which all persons convicted on indictment may appeal, superseded in 1908 (by the Criminal Appeal Act 1907) the court for crown cases reserved, to which any question of law arising on the trial of a prisoner ​could after conviction be remitted by the judge in his discretion. To the criminal appeal court there is an appeal both on questions of fact and of law (see Appeal).
Civil Courts.—In certain special cases, civil claims of small importance may be brought before justices or stipendiaries. Otherwise, and excepting the special and peculiar jurisdictions above mentioned, the civil business of England and Wales may be said to be divided between the county courts (taking small cases) and the High Court of Justice (taking all others).
The effect of the Judicature Acts on the constitution of the superior courts may be briefly stated. There is now one Supreme Court of Judicature, consisting of two permanent divisions called the High Court of Justice and the court of appeal. The former takes the jurisdiction of the court of chancery, the three common law courts, the courts of admiralty, probate, and divorce, the courts of pleas at Lancaster and Durham, and the courts created by commissions of assize, oyer and terminer, and gaol delivery. The latter takes the jurisdiction of the court of appeal in chancery (including chancery of Lancaster), the court of the lord warden of the stannaries, and of the exchequer chamber, and the appellate jurisdiction in admiralty and heresy matters of the judicial committee; and power is given to the sovereign to transfer the remaining jurisdiction of that court to the court of appeal. By the Appellate Jurisdiction Act of 1876 the House of Lords is enabled to sit for the hearing of appeals from the English court of appeal and the Scottish and Irish courts during the prorogation and dissolution of parliament. The lords of appeal, of whom three must be present, are the lord chancellor, the lords of appeal in ordinary, and peers who have held “high judicial office” in Great Britain or Ireland. The lords in ordinary are an innovation in the constitution of the House. They hold the rank of baron for life only, have a right to sit and vote in the House during tenure of office only, and a salary of £6000 per annum.
There are also many obsolete or decayed courts, of which the most noticeable are dealt with under their individual headings, as Court Baron, Court Leet, &c.
The history of English courts affords a remarkable illustration of the continuity that characterizes English institutions. It might perhaps be too much to say that all the courts now sitting in England may be traced back to a common origin, but at any rate the higher courts are all offshoots from the same original judicature. Leaving out of account the local courts, we find the higher jurisdiction after the Norman Conquest concentrated along with all other public functions in the king and council. The first sign of a separation of the judicial from the other powers of this body is found in the recognition of a Curia Regis, which may be described as the king’s council, or a portion of it, charged specially with the management of judicial and revenue business. In relation to the revenue it became the exchequer, under which name a separate court grew up whose special field was the judicial business arising out of revenue cases. By Magna Carta the inconvenience caused by the curia following the king’s person was remedied, in so far as private litigation was concerned, by the order that common pleas (Communia Placita) should be held at some fixed place; and hence arose the court of common pleas. The Curia Regis, after having thrown off these branches, is represented by the king’s bench, so that from the same stock we have now three courts, differing at first in functions, but through competition for business, and the ingenious use of fictions, becoming finally the co-ordinate courts of common law of later history. But an inner circle of counsellors still surrounded the king, and in his name claimed to exercise judicial as well as other power; hence the chancellor’s jurisdiction, which became, partly in harmony with the supra-legal power claimed from which it sprang, and partly through the influence of the ecclesiastical chancellors by whom it was first administered, the equity of English law. Similar developments of the same authority were the court of requests (which was destroyed by a decision of the common pleas) and the court of star chamber—a court of criminal equity, as it has been called,—which, having been made the instrument of tyranny, was abolished in 1641. Even then the productive power of the council was not exhausted; the judicial committee of the privy council, established in 1832, superseding the previous court of delegates, exercises the jurisdiction in appeal belonging to the king in council. The appellate jurisdiction of the Lords rests on their claim to be the representatives of the ancient great council of the realm.
See further Admiralty, High Court of; Appeal; Chancery; Common Law; Common Pleas, Court of; Divorce; Equity; &c.
United States.—The Federal judicial system of the United States is made by the Constitution independent both of the Legislature and of the Executive. It consists of the Supreme Court, the circuit courts, and the district courts.
The Supreme Court is created by the Constitution, and consisted in 1909 of nine judges, who are nominated by the President and confirmed by the Senate. They hold office during good behaviour, i.e. are removable only by impeachment, thus having a tenure even more secure than that of English judges. The court sits at Washington from October to July in every year. The sessions of the court are held in the Capitol. A rule requiring the presence of six judges to pronounce a decision prevents the division of the court into two or more benches; and while this secures a thorough consideration of every case, it also retards the despatch of business. Every case is discussed twice by the whole body, once to ascertain the view of the majority, which is then directed to be set forth in a written opinion; then again, when the written opinion, prepared by one of the judges, is submitted for criticism and adoption by the court as its judgment.
The other Federal courts have been created by Congress under a power in the Constitution to establish “inferior courts.” The circuit courts consist of twenty-nine circuit judges, acting in nine judicial circuits, while to each circuit there is also allotted one of the justices of the Supreme Court. Circuit courts of appeals, established to relieve the Supreme Court, consist of three judges (two forming a quorum), and are made up of the circuit and district judges of each circuit and the Supreme Court justice assigned to the circuit. Some cases may, however, be appealed to the Supreme Court from the circuit court of appeals, and others directly from the lower courts. The district courts number (1909) ninety, in most cases having a single justice. There is also a special tribunal called the court of claims, which deals with the claims of private persons against the Federal government. It is not strictly a part of the general judicial system, but is a creation of Congress designed to relieve that body of a part of its own labours.
The jurisdiction of the Federal courts extends only to those cases in which the Constitution makes Federal law applicable. All other cases are left to the state courts, from which there is no appeal to the Federal courts, unless where some specific point arises which is affected by the Federal Constitution or a Federal law. The classes of cases dealt with by the Federal courts are as follows:—
1. Cases in law and equity arising under the Constitution, the laws of the United States, and treaties made under their authority;
2. Cases affecting ambassadors, other public ministers and consuls;
3. Cases of admiralty and maritime jurisdiction;
4. Controversies to which the United States shall be a party;
5. Controversies between two or more states, between a state and citizens of another state, between citizens of different states, between citizens of the same state claiming lands under grants of different states, and between a state or the citizens thereof and foreign states, citizens or subjects (Const., Art. III., § 2). Part of this jurisdiction has, however, been withdrawn by the eleventh Amendment to the Constitution, which declares that “the judicial power of the United States shall not be construed to extend to any suit commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state.”
The jurisdiction of the Supreme Court is original in cases affecting ambassadors, and wherever a state is a party; in other cases it is appellate. In some matters the jurisdiction of the ​Federal courts is exclusive; in others it is concurrent with that of the state courts.
As it frequently happens that cases come before state courts in which questions of Federal law arise, a provision has been made whereby due respect for the latter is secured by giving the party to a suit who relies upon Federal law, and whose contention is overruled by a state court, the right of having the suit removed to a Federal court. The Judiciary Act of 1789 (as amended by subsequent legislation) provides for the removal to the Supreme Court of the United States of “a final judgment or decree in any suit rendered in the highest court of a state in which a decision could be had, where is drawn in question the validity of a treaty or statute of, or an authority exercised under the United States, and the decision is against their validity; or where is drawn in question the validity of a statute of, or an authority exercised under, any state, on the ground of their being repugnant to the Constitution, treaties or laws of the United States, and the decision is in favour of their validity; or where any title, right, privilege or immunity is claimed under the Constitution, or any treaty or statute of, or commission held, or authority exercised under the United States, and the decision is against the title, right, privilege or immunity specially set up or claimed by either party under such Constitution, treaty, statute, commission or authority.” If the decision of the state court is in favour of the right claimed under Federal law or against the validity or applicability of the state law set up, there is no ground for removal, because the applicability or authority of Federal law in the particular case could receive no further protection from a Federal court than has in fact been given by the state court.
The power exercised by the Supreme Court in declaring statutes of Congress or of state legislatures (or acts of the Executive) to be invalid because inconsistent with the Federal Constitution, has been deemed by many Europeans a peculiar and striking feature of the American system. There is, however, nothing novel or mysterious about it. As the Federal Constitution, which emanates directly from the people, is the supreme law of the land everywhere, any statute passed by any lower authority (whether the Federal Congress or a state legislature), which contravenes the Constitution, must necessarily be invalid in point of law, just as in the United Kingdom a railway by-law which contravened an act of parliament would be invalid. Now, the functions of judicial tribunals—of all courts alike, whether Federal or state, whether superior or inferior—is to interpret the law, and if any tribunal finds a Congressional statute or state statute inconsistent with the Constitution, the tribunal is obliged to hold such statute invalid. A tribunal does this not because it has any right or power of its own in the matter, but because the people have, in enacting the Constitution as a supreme law, declared that all other laws inconsistent with it are ipso jure void. When a tribunal has ascertained that an inferior law is thus inconsistent, that inferior law is therewith, so far as inconsistent, to be deemed void. The tribunal does not enter any conflict with the Legislature or Executive. All it does is to declare that a conflict exists between two laws of different degrees of authority, whence it necessarily follows that the weaker law is extinct. This duty of interpretation belongs to all tribunals, but as constitutional cases are, if originating in a lower court, usually carried by appeal to the Supreme Court, men have grown accustomed to talk of the Supreme Court as in a special sense the guardian of the Constitution.
The Federal courts never deliver an opinion on any constitutional question unless or until that question is brought before them in the form of a lawsuit. A judgment of the Supreme Court is only a judgment on the particular case before it, and does not prevent a similar question being raised again in another lawsuit, though of course this seldom happens, because it may be assumed that the court will adhere to its former opinion. There have, however, been instances in which the court has virtually changed its view on a constitutional question, and it is understood to be entitled so to do.
* ↑ Cf. the German Hof for court-yard, court of law, and royal court.
* ↑ The sittings are held in the court-house in the Old Bailey. The old sessions house was destroyed in the Gordon riots of 1780. The building erected in its place, although enlarged from time to time, was very incommodious, and a new structure, occupying the site of Newgate Prison, which was pulled down for the purpose, was completed in 1907.