# The American Cyclopædia (1879)/Court

Edition of 1879. See also Court on Wikipedia; and the disclaimer.
​COURT, in law, an institution having a two-fold object, viz.: the conservation of public order by the suppression of violence and crime, and the adjudication of disputes on civil matters between the individuals constituting a community. The first of these is most prominent in a rude state of society, the latter in an advanced stage of civilization. In the earlier and ruder condition, the laws have principal reference to protection from personal violence, and the judicial function is chiefly exercised in rendering speedy justice to the offenders. Another peculiar distinction is also observable in the administration of laws at the different periods above referred to. In the earlier it is vested in the executive, which at that time is usually the sole constituent of the government, and this continues to be the characteristic of every nation whose advance beyond semi-barbarism is arrested, or whenever from a state of partial civilization it returns again to its original rude condition. Such was the primitive administration of laws in the states of Greece; the king or chief of a people was not merely a military leader, but also a judge; and this is now the case in oriental autocracies, with only the modification that where the territorial jurisdiction is large, as in Turkey or Persia, the laws are administered by deputies, but who, in like manner as the sovereign of a small state, each within his respective district, perform the functions of executive and judicial officers. A third circumstance ​may be observed, viz.: that in the earlier period a large discretion is exercised in judicial proceedings. Tho laws being few, cases will occur that are not provided for; and again, personal security being the chief object had in view, summary justice is naturally preferred to the more tardy form of proceeding which would be involved by a regard to the rules of evidence which in a more advanced stage of society are deemed essential; indeed, these rules are an after growth, and require a long experience and an intellectual habit to develop.—The Roman consuls were at first executive and judicial magistrates. The progress of the people in civilization was indicated by their demand of some check upon the arbitrary judgment of the consuls in their judicial capacity, which led to the compilation of the laws of the twelve tables; a still further advance was shown in the separation of the judicial from the consular office, and the appointment of the prætor. But although the Roman mind was eminently legal, it did not during the existence of the republic attain to a clear idea of the importance of a supervisory power for the correction of the errors of inferior tribunals. The assemblies of the people, both the centuriata and tributa, had indeed a judicial power, but it was exercised in the hearing of cases in the first instance, and those chiefly of persons charged with capital offences. But in civil causes there was not properly an appeal from the judgment of the praetor, or of the judges (or more properly juries) appointed by him. The nearest approach to it was the power exercised by the praetor in certain cases of setting aside the sentence of the judices for fraud, and so the assistance of the tribunes was sometimes invoked against the corrupt conduct of the prætor himself. Under the imperial government an appeal was allowed from all inferior judges to the emperor, which was in fact usually heard by a court composed of the chief officers of state and distinguished jurists. Even this court was not, however, strictly subject to the rules which are in modern times deemed essential to an appellate court. It not only decided cases brought before it by appeal from the final judgments of inferior tribunals, but would take original jurisdiction in many cases while they were pending before a subordinate court, and not merely make decisions (decreta) in such cases, but also give opinions (rescripta) to magistrates or private persons upon questions proposed by them.—In the constitution of judicial tribunals under modern European governments there has been a great advance beyond the Roman in all of the particulars which we have named above as appertaining to the administration of law. The separation of the judicial from executive functions has become gradually recognized as a political principle. In England it was asserted at an early period for the protection of personal freedom against royal power, but it was imperfectly carried into effect until within the last two centuries, when the tenure of judicial office was made independent of the pleasure of the king. The clause of Magna Charta, Communia placita non sequentur curiam nostram, sed teneantur in aliquo loco, though seemingly intended for the mere convenience of suitors, by prescribing a certain place for the trial of their causes instead of compelling them to travel about with their witnesses wherever the aula regis held by the king in person might be, in reality had the effect of breaking up that court, and ultimately of establishing the several courts of common pleas, king's bench, and exchequer, presided over by justices appointed for that purpose. The king's bench alone, which retained jurisdiction of criminal cases, continued for some time afterward to be migratory, whence the common form of process returnable to that court was ubicumque fuerimus; and this prevailed after the court became fixed like the others at Westminster, and its itinerancy was but a mere legal fiction. But the judges of all these courts were appointed by the king, and could be removed by him at will; and this power of removal continued until by statute 13 William III. (1701) it was enacted that the commissions of the judges should be quamdiu se lene gesserint, instead of durante bene placito as formerly, and that they should be removable only upon an address of both houses of parliament. The chancellor alone, who presides over the department of equity, is subject to removal at the pleasure of the king, and his office is held entirely by a political tenure. The four courts of original and general jurisdiction have been the king's bench, common pleas, exchequer, and chancery. These may be considered the outgrowth of the common law, though, according to a popular mode of expression, chancery is distinguished from the other three, as if not of common law origin, but the equity administered in that court was chiefly indigenous. The ecclesiastical and admiralty courts, on the other hand, derive their mode of administering law from a foreign source, though the limit of their respective jurisdictions is prescribed by acts of parliament, or by long usage, which is supposed to be founded upon statute. The court of king's bench, in the distribution of judicial powers upon the breaking up of the ancient aula regis, retained, as we have mentioned, jurisdiction of criminal cases; but to this was added all that class of cases which, though in reality civil actions between private citizens, yet, as they involved an allegation of force (as in actions for trespass, where the act complained of was alleged to have been done vi et armis), were deemed quasi criminal. But notwithstanding this narrow limit of its cognizance of civil cases, it remained in one sense the highest court in the realm. It has always been the representative of the king's prerogative, has exercised authority over all other common law courts so far as to restrain them within their proper jurisdiction by writ of prohibition, and has always exercised summary ​power, in all cases not otherwise provided for, to compel inferior courts and magistrates to do their duty. By a fiction of law it also acquired jurisdiction of all civil cases except actions relating to real estate, and might even try titles in ejectment; the fiction consisting in an allegation in pleading that the defendant was in custody for a trespass. The court of common pleas had originally exclusive jurisdiction of all purely civil actions, and always retained sole cognizance of actions relating to the realty, except ejectment as above stated. The business of the court of exchequer was originally the collection of debts due the crown, but jurisdiction was obtained of all personal actions by a fiction, viz.: an allegation that the king's debtor had suffered an injury whereby he was less able to pay his debt; whereupon he was allowed to implead in this court the person charged with the wrong. There was a common law and an equity side to the court, but the jurisdiction on the equity side was afterward transferred to the court of chancery. (See Chancery.) From all these courts difficult cases were adjourned before judgment to the exchequer chamber, consisting of the judges and barons of the three law courts, the chancellor and lord treasurer; and in some cases an appeal might be taken after judgment to that court. Chancery cases heard before the master of the rolls or a vice chancellor might be appealed to the chancellor (with whom of late have been associated two, and then three lords justices of appeal), and from thence, as well as from the exchequer chamber and the highest courts of Ireland and Scotland, to the house of lords. By the act of August, 1873, the several superior courts of England, including the courts of chancery, admiralty, probate and divorce, and London court of bankruptcy, are consolidated into one supreme court, to consist of two parts or divisions, one the high court of justice, and the other the court of appeal. All the judges of the old courts are made judges of the supreme court, and as vacancies occur in their number appointments are made in their stead, but not until the number is reduced to 21. The high court is divided into sections named after the old courts, but it is to administer justice under simple forms, and without distinguishing between law and equity, giving precedence to equitable principles. The lord chancellor, the two chief justices, the chief baron, and the master of the rolls are to continue to be appointed with the same titles and rank as before. The judges will go as formerly upon the circuit. The court of appeal will be composed of the chancellor, the two chief justices, the chief baron and master of the rolls, with not exceeding nine ordinary judges, who shall at first be the lords justices of appeal in chancery, the three salaried members of the judicial committee of the privy council, and three to be appointed; and it will have the former appellate jurisdiction of the lord chancellor, the court of appeal in chancery, the exchequer chamber, the judicial committee of the privy council in admiralty cases, and of the house of lords in English cases. The trial of all common law causes in the first instance has always been before itinerant or circuit judges, one of whom must be a judge of one of the superior courts of Westminster, which judges are sent annually into every county of the kingdom for the trial of civil and criminal cases which are to be brought before a jury. They were first appointed in the reign of Henry II., and were then called justices in eyre (justiciarii in itinere), but afterward designated as justices of assize and nisi prius. Their commission also authorizes them to try all criminal cases, which part of their duties is expressed by the old law phrases of oyer and terminer (to hear and determine), and general jail delivery; the former relating to cases upon which an indictment is found by a grand jury at the same circuit, the latter to indictments previously found upon which there had been an arrest and imprisonment of the parties indicted. The commissions of assize and nisi prius relate to civil causes. Assize in the old English law was the name applied to the trial of issues relating to the freehold, by a species of jury called recognitors, who were allowed to decide upon their own personal knowledge without the examination of witnesses; in modern law the term designates issues in actions relating to real estate. Nisi prius is a phrase in the writ issued to the sheriff for the summoning of a jury, by which he is commanded to bring them before the court at Westminster at a certain day in term, unless before that time the justices of assize should come into his county; and as the justices accordingly come, the sheriff returns the writ at the court of assizes.—In France, the administration of justice, which originally belonged to and was exercised by the suzerains or feudal lords in person, was, by a process similar to what took place in England, vested in certain officers appointed for that purpose, who at first were considered as the mere deputies of the suzerain, but were afterward recognized as having independent official functions. One peculiarity prevailed in all the seigniories, viz., that whether the seigneur or his deputy, or the latter judicial magistrate (under the name of bailli), presided, it was necessary for the adjudication of any question to call together the principal vassals, who in fact constituted a court, although at first they were spoken of rather as advisers of the seigneur than as judges; but afterward, when the baillies held the courts, they were obliged to submit every case to the judgment of the assembled vassals, who then began to be called peers. These courts decided all questions between the vassals themselves or between vassal and seigneur, except that in the latter class of cases such questions were excluded as involved a contest between the seigneur and the vassals generally, which questions were brought before the suzerain or superior lord of whom the seigneur held. In ​other cases, where the seigneur refused to decide, or interfered with the proper administration of right, an appeal was often made to the superior lord; and so also for an unjust judgment, probably, however, only in a case of flagrant violation of right. The former appeal was called en défaut de droit, the latter en faux jugement. In either case, however, the ground of the appeal was some misconduct of the seigneur or his representative, and not strictly for a review of a case fairly conducted. But instead of such appeal, the vassal who thought himself aggrieved by the judgment of his seigneur could challenge him to combat, first renouncing fealty to him. From these seigneurial courts subsequently grew up the parlements. There was at first but one, viz., the court of the king. The first Capetian sovereigns created four grand bailliages to hear appeals from all judgments rendered in the courts of the seigneurs, and to judge in the first instance where there was a conflict of jurisdiction ; but these tribunals were not uniformly acknowledged, and the vassals still resorted to the court of the king. In consequence of the accumulation of business, and the great expense of attending upon that court at various places, Philip the Fair, by an edict in 1302, made the sitting of the court permanent at Paris. He also established a parlement for Languedoc. The exchiquier of Normandy was fixed at Rouen permanently by Louis XII., and was entitled by Francis I. a cour de parlement. Others were afterward established, and these courts continued to be the appellate tribunals until the revolution. Henry II. established presidences (présidiaux) in the principal cities, reserving to the parlements only the more considerable causes and inspection of the inferior courts. The parlements, which originally consisted of the peers of France, were finally composed of lawyers appointed by the king. They were abolished in 1790, and in their place, so far as respected appellate jurisdiction, was substituted the court of cassation. This court was composed of 52 judges, who, by the charte constitutionnelle of 1814, received their appointment from the king, but were not removable. Tribunals of appeal were created a few years after the establishment of the court of cassation (1802), which after the restoration were called cours royales, and under Napoleon III. cours impériales. The exact limits of the jurisdiction of the latter courts and of the court of cassation are not defined with much precision. The court of cassation, which now consists of 45 counsellors, three vice presidents, and a president, is divided into three chambers, viz.: a chamber of requests, a chamber of civil, and a chamber of criminal cassation. Demands in cassation (applications for reversal of judgment) are first heard by the chamber of requests, which either rejects them or sends them to one of the other chambers. The appeal is directly from the tribunals of first instance, tribunaux civil d'arrondissement, which are the same that were established in 1790 under the name of tribunaux de district.—This brief review of the courts of the two countries of Europe most celebrated for their jurisprudence, will sufficiently illustrate how far they fulfil the conditions of a sound administration of justice in two particulars, viz.: freedom from excessive control, and a due regard to the correction of errors by a review of the first judgment in an appellate court. There are, however, other important considerations to which we may properly advert. Judges should be independent not only of executive influence, but also of all personal responsibility to litigant parties. There is a singular feature in the French law which indicates either a low state of judicial integrity or an entire oversight of an important principle of jurisprudence. By a proceeding called prise à partie, which has been recognized from an early period, a judge is liable to be sued by the party against whom he has rendered judgment. The old rule was, that he could be made responsible only when the judgment was without excuse (doit être affectée et inexcusable); by an ordinance of Francis I. (1540) a judge was not liable except for fraud or extortion (s'il n'y a dol, fraude ou concussion). Still he was subject to a suit for damages, and several old writers commented strongly upon the peril to society in subjecting judges to such a liability, especially for judgments in criminal proceedings. But notwithstanding these remonstrances, the proceeding has always been and still is allowed. Merlin mentions a number of cases in which the judge would be held responsible, among which are: 1, arresting a person without proper complaint, except in case of flagrant crime (hors le cas de flagrant délit); 2, arrest without proof, or for an offence which was not punishable by imprisonment; 3, where the judge has exceeded his power by taking cognizance of a matter without having jurisdiction; 4, evoking a case from an inferior tribunal under pretext of an appeal, and then not disposing of it. The provisions of the code of civil procedure lack precision. The cases of prise à partie are: 1, for fraud or extortion, in the language of the ordinance of Francis I.; 2, where it is expressly prescribed by law; 3, where the law has declared judges liable for damages; 4, if the judge has denied justice. (Code de procédure, § 505.) The English law, on the contrary, affords ample protection to judges. The rule is, that no private suit will lie against judges of a court of general jurisdiction, either for error of judgment or even for misconduct in their judicial functions; and the same protection is extended to judges of courts of inferior jurisdiction when acting within the limit of their authority. For official corruption, or other criminal conduct, a judge may be impeached and removed from office, and is also liable to be proceeded against by indictment; but no other redress is allowed to a suitor who ​may have sustained injury by such misconduct. If, however, a judge having a limited jurisdiction should exceed it, that is to say, should undertake to act in a matter not within his jurisdiction, then he becomes liable to a suit for damages, even if it was a mere mistake of judgment. Thus the court of Marshalsea, which had jurisdiction only of cases in which one of the parties was of the king's household or trespasses committed within the verge of the court, having given judgment for a debt of which they had no cognizance and imprisoned the debtor, the judges and even the ministerial officers were all held liable to damages, the proceedings being coram non judice (case of the Marshalsea, 10 Coke's Rep., 68) ; but in the same case it was said that where a court has jurisdiction of a cause and proceeds erroneously, an action will not lie against the party who sues or against the officer or minister of the court. The rule of exemption as above stated in cases of judges of general jurisdiction has been sustained by the most eminent English judges. (See Groenvelt v. Burwell, 1 Salk., 396; Miller v. Seare, 2 Bla. Rep., 1141; and Mostyn v. Fabrigas, Cowp., 161.) In the case last cited, a governor of Minorca was sued in England for a false imprisonment alleged to have been committed by him while governor. Lord Mansfield said, if it had been done judicially it would have been a complete bar to the action, but as governor he had no such exemption; and he mentioned several cases of naval officers in the British service against whom actions had been brought and damages recovered for acts done by them officially in foreign parts. There was an interesting discussion of this subject in the courts of the state of New York in the case of Yates v. Lansing, which was an action against the chancellor, and the English doctrine was fully considered and sustained. (5 Johnson's Rep., 282 ; 9 id., 375.) In the recent case of Bradley v. Fisher, 13 Wallace's Reports, 335, the supreme court of the United States has affirmed the same doctrine. The same exemption from private suit on account of judicial acts which is given to judges is also extended to jurors, who by the English and American law are judges of facts. Another important requisite for the proper administration of law is certainty in the rules of decision. A discretionary power has been shown by common experience to be unsafe, however specious the idea may be of determining each case upon its own equity. A general rule, known beforehand and rigidly adhered to, is preferable to an oscillating and precarious judgment, although cases of individual hardship will occur in the application of such rules. There will, however, be cases not foreseen or provided for; in respect to these, shall the judges exercise a discretionary power, or should there be a judicatory to take special cognizance of them, or lastly, should legislative action be invoked? The Roman prætors intermingled equitable relief with their judicial decisions. In the English judicial system the court of chancery has had an exclusive but still limited authority to give relief in certain cases upon principles of equity different from the strict rules of law. Yet even in the administration of equity that court soon became bound by its own precedents, from which it was not at liberty to depart, and the chancery law of England is at this day as well settled as the law administered in the other courts. Bacon proposed, in his aphorisms De Jutitia Universali, that there should be what he calls prætorian courts, having power as well of relieving from the rigor of the law as of supplying the defects of law, that is, prescribing the rule in cases not otherwise provided for. (De Aug., lib. 8, c. iii., aph. 31.) The English courts all decide according to precedents, or if no former decision can be found, then by analogy to what has been decided in similar cases, or upon some general principle which has been recognized; and in cases entirely new they have sometimes sought aid from the Roman law. There is one class of cases, however, in which positive law alone is acted upon, and that is in respect to crimes and their punishment. Crimes must be defined by law, which may be either by statute or by ancient prescription, but courts have no power to declare new crimes; and so in regard to punishment, courts can enforce no other penalty than what has been previously fixed by law. The parlements of France were in like manner bound by the arrêts réglementaires, rules of decision established in former cases. On the reorganization of the courts in 1790 an attempt was made to abrogate all power of deciding from analogy, or even by a resort to general principles of jurisprudence; and all cases not provided for by express law were to be referred to the national assembly for the purpose of having such law enacted as would be applicable to the particular case. This crude experiment was so unsatisfactory that in the Code Napoléon it was thought necessary not only to restore to the courts the power of deciding upon general principles and analogy, but it was even made penal to do otherwise. (Code Napoléon, art. 4.)—The courts of the United States have a general correspondence with the English judicial system. The modifications are chiefly these: 1. In the federal courts, as well as the courts of most of the states, the equity powers of the English chancery have been vested in the other courts, though the English system of equity is still substantially administered. Hence our courts may be said to have an equity and a common law side. 2. Local circuit judges have been generally substituted in place of the itinerant or nisi prius judges of England. 3. In most of the states the judges are elected like other public officers by popular vote. Under the federal government the courts consist of the following: 1, the senate as a court of impeachment; 2, the supreme court; 3, the circuit courts; 4, the district courts; 5, the court of claims; 6, the supreme court of the District ​of Columbia; 7, the territorial courts. The supreme court consists of a chief justice and eight associate justices, appointed by the president with the consent of the senate, and has original jurisdiction of all suits affecting ambassadors, other public ministers, and consuls, and those to which a state is a party; also appellate jurisdiction over the circuit and territorial courts, and the court of claims, but limited generally to cases involving not less than $1,000 to $3,000 in value; and over the state courts where a question has arisen under the constitution, treaties, or laws of the United States, which the highest court of the state has decided adversely to the validity of any such statute or treaty, or to any authority exercised or asserted under the same or under the constitution, or where a state law or authority has been sustained against an objection that it was repugnant to the constitution, laws, or treaties of the United States. The circuit courts exercise original jurisdiction, concurrently with the state courts, of all civil suits where the matter in dispute exceeds $500, and the United States is plaintiff, or an alien is a party, or where the suit is between a citizen of a state in which the suit is brought and a citizen of another state. They have exclusive jurisdiction of crimes against the United States, except where otherwise specially provided, and concurrent jurisdiction with the district courts of crimes cognizable therein. They may restrain the infringement of patents, and try suits for such infringement; and they have appellate jurisdiction over the district courts where the amount in controversy exceeds $50. There are nine circuits, in each of which is a circuit judge, with whom a justice of the supreme court may sit, and also the district judge for the district; or any one of the three may hold the court alone. The district courts have jurisdiction of such crimes, not capital, as the United States can take cognizance of, and they are also the admiralty and bankruptcy courts. They have also jurisdiction of certain cases of torts where an alien sues, and where the United States or an officer thereof or a foreign consul is a party. The court is held by a district judge. Every state is a district, but some are divided into two or more. The supreme court of the District of Columbia has a jurisdiction corresponding to that of the state courts, and also that of the federal district courts. The court of claims consists of five judges, and has authority to hear and determine all claims against the United States founded upon any law of congress or regulation of the executive department, or upon any contract express or implied with the government, and all claims which may be referred to it by congress; also all set-offs, counter claims, claims for damages, or other demands whatsoever, on the part of the government against any person making claim against the government in that court. The territorial courts possess the powers specially conferred upon them by the acts providing for their creation. Their judges hold office at the will of the president, while other federal judges hold during good behavior.