# The New International Encyclopædia/Court (law)

Edition of 1905. See also Court on Wikipedia; and the disclaimer.
​COURT (Fr. cour, It. corte, from Lat. cohors, inclosure, from co- together + *hors, connected with Lat. hortus, garden, Gk. χόρτος, chortos, hay, OIr. gort, sedge, Goth. gards, court, OHG. garto, Ger. Garten, AS. geard, Engl. yard). Courts, in the legal sense—i.e. authorities empowered to try and punish persons charged with offenses against the public or State, and to settle disputes regarding the rights and duties of individuals—have existed among all peoples that have emerged from savagery. There is no single root from which early judicial authority springs; nor is there, even among the Aryan peoples, any single typical form of primitive court. The right of the community to punish offenses against the community—a right which expresses itself originally in lynch law—may beget a popular jurisdiction in criminal cases; and the interest of the community in preventing feuds may make the popular assembly competent to decide civil cases. The belief that flagrant breaches of the social order are offenses against the gods may vest criminal jurisdiction in the priests; and the duty of the priests to see that vows and promises under oath are performed may be expanded into a fairly broad civil jurisdiction. The attribution to the king of disciplinary powers over the popular army, and the concentration in his hands of the power of preserving internal peace, may create an extensive royal jurisdiction over crimes and also over torts; and the king's civil jurisdiction may be widened by ascribing to him a patriarchal authority analogous to that exercised by the heads of houses and of clans. Private disputes may be referred, voluntarily at first, to the decision of king or priest or assembly, and when such references have become customary the duty of decision may be transformed into judicial authority. Traces of all these ideas and influences are discernible in the early judicial systems of the Aryan peoples.
Sir Henry Maine has called attention to the great importance given to courts and their machinery in every ancient code. It is due, he thinks, to the fact that the authority of a court of justice overshadowed all other ideas and considerations in the minds of those early code-makers. The dominant notion in their minds, when they undertook to classify legal rules, was not a law, or a right, or a sanction, as they are now considered by an analytical jurist, but a court of justice. “The great fact is that there now exists an alternative to private reprisals, a mode of stanching personal or hereditary blood-feuds other than slaughter or plunder. Hence, in front of everything they place the description of a court, of its mechanism, of its procedure, of its tests of alleged facts.” This conscious reverence for courts of justice, and this sense of their paramount importance, have diminished, Sir Henry Maine believes, as civilization has advanced and peace has become more prevalent. Some doubt of the correctness of this opinion may be entertained. In the first place, the fact that the term ‘court,’ which, as we have seen, originally designated a body exercising legislative as well as judicial powers, has been limited in most countries to the designation of a tribunal exercising judicial powers only, indicates that such powers are deemed of prime importance. In the second place, the authority of courts, especially in federal governments under written constitutions, and, throughout Christendom, under international arbitration treaties, is very great, and destined to be still greater.
Greek Courts. Among the Greeks of the Homeric age, jurisdiction both in criminal and in civil cases appears to have been vested in the kings and chieftains. In important cases their judgments were submitted to the people for confirmation, but no real participation in the finding of judgments was accorded to the people until the Greek States became democratic. Then the magistrates, whose powers at first were similar to those previously exercised by the kings, became mere chairmen of popular courts. At Athens, in the fourth century B.C., every adult citizen was normally a ‘dikast’ or juror, and civil and criminal cases were decided by majority vote in courts containing from two hundred to six thousand or more jurors.
Roman Courts. Among the Romans criminal jurisdiction was exercised by the king or by officials appointed by the king. From the decisions of such officials appeal to the popular assembly was sometimes granted. In the Republican period such an appeal (provocatio) lay against all sentences condemning a citizen to death, or scourging, or exile, and also against fines beyond a certain amount; and this appeal became the real trial. The forms observed were substantially the same as in legislation. A proposal to condemn the accused to a certain punishment was submitted to the people, debated before them in informal assembly (contio), and accepted or rejected by them in formal assembly (comitia). (See Comitia.) During the last century of the Republic, criminal courts of a different type, the quæstiones, gradually absorbed the jurisdiction previously exercised by the assembly. The quæstio was a body of select jurors sitting under the presidency of a special magistrate, usually a prætor. The jurors were drawn from a small panel, which included only the most distinguished and wealthy citizens.
Civil jurisdiction, also, is said to have been exercised by the Roman kings. It is probable, however, that the king did not decide the controversies submitted to him; but, like the prætor in later times, heard the pleadings only, and then sent the parties to a judex, or referee, nominated (or at least accepted) by the parties themselves. It also seems probable that, in the royal period, the referees were usually priests (pontifices). In the Republican period there were elected boards of judices (decemviri, centumviri), to which cases were sent by the prætor; but reference to a single judex, regularly a senator, seems to have been customary in actions on tort or on contract, and was admissible, during the last century of the Republic, in all cases.
The fundamental principle which controlled the administration of civil and criminal justice, and the composition of the courts, in the Republican period was the separation of jurisdiction (jus) and judgment (judicium) . Pleas were made and the case was formulated before a magistrate, but the decision was rendered by a private citizen or by a body of private citizens. In the Imperial period this system (ordo judiciorum) was gradually supplanted by the cognitio extraordinaria, in which an Imperial official conducted the trial and rendered the decision. Under this system the administration of ​justice was taken out of the hands of the people and became a part of the general administration created and controlled by the emperor. As in the general administration, so in the administration of justice, there were courts of lower and higher instance, and appeals could be taken. In the late Empire (fourth and fifth centuries) the municipal courts had jurisdiction only in police cases and in petty civil cases. The ordinary court of first instance was that of the rector or president of the province. From his decision appeal ran to the vicar of the diocese, and then to the prætorian prefect, the immediate personal representative of the emperor. The appellate courts had not merely cassational, but reformatory jurisdiction—i.e. they could not only set aside a decision, but they could also reverse or modify it.
Teutonic and Mediæval Courts. The primitive Teutonic court was a folk-moot, or popular court, in which the decision was proposed by the presiding dignitary (king or prince or hundredman), or by a law-speaker appointed by the presiding dignitary, and was approved or disapproved by the assembled freemen. In the later Frankish (Carolingian) Empire, special judgment-finders (scabini, Schöffen, échevins) gradually took the place of the body of freemen. These judges or assessors were at first appointed by the count; but, after the dissolution of the Empire, their office, like most offices, became hereditary.
The early Teutonic courts were those of the hundred, of the county, and of the tribe. In the Frankish Empire the court of the tribe was replaced by the royal court, held by the count palatine; and in the Carolingian period circuit courts were held by Imperial missi. Even in the Carolingian period the courts of the hundred and of the county were being supplanted by manorial courts, held by the bailiffs of the seigneurs, and after the dissolution of the Empire the popular free courts disappeared in many parts of Europe. During the Middle Ages appeared special feudal courts and independent city courts. Nearly all the mediæval courts were courts at once of first and last instance; there was no system of appeals; the king's court was usually nothing but a feudal court for the great vassals. In all of these courts, from the king's court down to the manorial court, the decision was usually rendered (or at least approved) by a limited number of judges or assessors, who were regularly the pares of the defendant—i.e. persons of the same class and rank. Throughout the Middle Ages there were also special ecclesiastical courts (see Canon Law), with jurisdiction not only over Church matters, but over the persons of the clergy and over many matters to-day regarded as civil. In these courts the judicial organization and procedure of the late Roman Empire were perpetuated. From the ordinary (bishop's) courts appeals ran to Rome, and the Pope could appoint legates to hold special courts.
Modern European Courts. When the administration of justice was reorganized by the absolute monarchy, the new royal courts were modeled on the ecclesiastical courts. Professional or ‘learned’ judges replaced the mediæval lay judges; the judge or bench of judges rendered decision both upon the law and the facts; appeals ran from the courts of lower instance to those of higher, and finally to the king's court. The modern European courts are still, essentially, courts of this Roman-Imperial-ecclesiastical type, except that the court of last instance has usually cassational jurisdiction only, not reformatory jurisdiction. The only important modification which has been introduced is jury trial in criminal cases. Lay assessors have been retained or reintroduced, in some countries, in the police courts and in the commercial courts. These latter courts, with special jurisdiction over merchants and commercial cases, are survivals of the independent city courts of the Middle Ages. The number of judges in a European court is usually proportional to the amount of business with which the court has to deal. In the larger courts the judicial force is divided into sections (sometimes termed senates), and the judicial business is distributed according to its character, criminal cases going to one section, commercial cases to another, etc. When a doubtful question of general importance comes before such a section, a session of the entire court may be called. In all the leading European States the independence of the judge is safeguarded by life tenure and fixed salary, and in the German Empire by the rule that a transfer, even when it is technically a promotion, cannot be made without the consent of the judge concerned.
English and American Courts. Originally of wider signification, the term court has come to represent a permanent organization or tribunal for the public administration of justice, composed of one or more judges, who, when engaged in the transaction of business, are attended ordinarily by attorneys and counselors, who represent the litigants; by clerks, who keep records of what is done; and by marshals, sheriffs, constables, or like officers, who enforce judicial mandates and preserve order.
In primitive communities, courts perform legislative and executive as well as judicial functions. The scyresgemot, county court, or sheriff's turn of Anglo-Saxon England was not simply a judicial tribunal presided over by a bishop and sheriff, but was an assemblage of freemen for the discussion and transaction of local affairs generally. The Aula Regis, or Great Council of the Kingdom, in the early English history performed legislative as well as judicial duties; and so did the stated assemblages of the ruling class in some of the English colonies in this country. In Massachusetts the present names of the legislative and the judicial bodies—the General Court and the Supreme Judicial Court respectively—bear testimony to the fact that the primitive court of the colony performed both legislative and judicial functions.
I. English courts may be classified in various ways. One basis of classification is their relative authority; and this divides them into superior and inferior courts. (a) The latter class includes those tribunals over which courts of the former class may exercise a supervisory jurisdiction by writs of mandamus (q.v.), certiorari (q.v.), or prohibition. They are of four kinds:
(1) Local courts of criminal or quasi-criminal jurisdiction, such as borough sessions, held by a recorder or the justices of a municipal borough; licensing sessions, held by borough justices for granting or withdrawing liquor licenses; ​petty sessions and special sessions, or courts held by two justices or a borough police magistrate in the exercise of a summary jurisdiction over minor offenses; general or quarter sessions of the borough and of the county, for the trial of felonies and misdemeanors within the borough or county jurisdiction, and for appeals from petty and special sessions.
(2) Local civil courts of record, such as borough civil courts and county courts. The latter are lineal descendants of the scyresgemots of King Alfred; but their present constitution, jurisdiction, and practice are regulated by the County Courts Act, 1888 (51 and 52 Vict. c. 43). Under this statute, England, with the exception of London, is divided into 491 county-court districts, each court having a judge who must be a barrister of at least seven years' standing, and who is appointed by the Lord Chancellor (except the judge within the Duchy of Lancaster, who is paid by salary), is allowed traveling expenses, is addressed as ‘His Honor Judge ——,’ and ranks next after knights bachelors. Some of these judges have a high professional reputation. From the decisions of these courts an appeal lies in many cases to the High Cotirt, and the latter possesses the power of supervising the proceedings of the former by writs of certiorari and prohibition, and by orders to show cause, which have been substituted for the old writ of mandamus.
(3) The university courts of Oxford and Cambridge, which exercise civil jurisdiction in some cases in which members of the university are concerned.
(4) Manorial courts, having a limited jurisdiction in some parts of the kingdom. See Manor.
(b) The superior courts of England, prior to the Judicature Act of 1873, embraced those of Common Law and of Equity, the Probate and Divorce Court, the Admiralty Court, and the London Court of Bankruptcy. The superior courts of common law and of equity were evolved from the Aula Regis, or Great Council of the Kingdom. It was provided by Magna Charta that “common pleas shall not follow one court, but shall be holden in some certain place.” Accordingly, new justices were appointed, and the Court of Common Pleas was established at Westminster Hall, with jurisdiction over all civil actions between individual litigants—that is, over all common pleas or suits, as distinguished from pleas of the Crown or criminal actions. A century later Edward I. detached from the Aula Regis the Court of King's Bench, the Court of Exchequer, and the Court of Chancery, thus settling the superior courts of law and equity upon the basis which they occupied until recently.
Originally the King's Bench (or Queen's Bench during the reign of a queen) was a criminal court and the conservator of the public peace. By a series of fictions, however, its jurisdiction was extended to civil actions.
So the Exchequer, which at first was a court of revenue only, extended its jurisdiction by fictions to a variety of suits between individual litigants.
Under Edward I. the Court of Chancery (q.v.) became an established judicial tribunal. It was presided over by the Chancellor, who had the custody of the Great Seal, and with it the power to issue writs returnable in chancery, and thus to act as a check upon the common-law courts. Later the Lord Chancellor was assisted in the performance of his judicial functions by the master of the rolls and by vice-chancellors. For the influence of this court upon the development of English law, see Chancery; Equity.
(c) Reference has been made already to the fact that one of the presiding officers of the Anglo-Saxon local courts was a bishop. After the Norman Conquest the bishops ceased to take part in those assemblies, and were accorded exclusive cognizance of spiritual matters. This jurisdiction was steadily extended until it embraced not simply the discipline of the clergy and the regulation of ecclesiastical affairs, but also the control of marriage and divorce, and the disposition of the estates of deceased persons. At present, however, ecclesiastical courts in England are confined to the decision of ecclesiastical questions, while divorce and matrimonial causes, as well as the probate (q.v.) of wills and testaments and the administration of decedents' estates, are within the jurisdiction of secular courts.
(d) The Court of Admiralty is one of great antiquity, having its origin, undoubtedly, in the period when the King was in truth the source of all judicial power. After the courts of common law, described above, acquired a degree of independence of the sovereign, they did not hesitate to issue writs of prohibition to the Court of Admiralty, and to treat it as an inferior tribunal. Its present jurisdiction is mainly statutory.
The London Court of Bankruptcy was created and regulated by modern bankruptcy (q.v.) statutes.
(e) By a series of judicature acts, beginning with that of 1873, all of the foregoing secular courts were consolidated into one Supreme Court. This consists, at present, of two permanent divisions, one of which, styled His Majesty's High Court of Justice, has original jurisdiction of all actions formerly brought in either of the superior courts of common law or of equity, or in the admiralty, or probate, or divorce, or bankruptcy courts; and an appellate jurisdiction over various cases brought up from inferior courts. The other division is styled His Majesty's Court of Appeal, its jurisdiction being almost exclusively appellate. The High Court is separated into three parts, known respectively as the Chancery Division, with the Lord Chancellor as president, and five judges; the King's Bench Division, with the Lord Chief Justice as president, and fourteen judges; and the Probate, Divorce, and Admiralty Division, with a president and a judge; the general character of the subjects of which each division has cognizance being indicated by its name.
The Court of Appeal consists of the Lord Chancellor, every person who has held the office of Lord Chancellor, the Lord Chief Justice, the Master of the Rolls, the president of the Probate, Divorce, and Admiralty Division, and five judges, with the title of Lords Justices of Appeal. It is an august tribunal, whose decisions of appeals from the various branches of the High Court command great respect.
In addition to this permanent and impressive Appellate Division of the Supreme Court, there are divisional courts, in the King's Bench ​Division and in the Probate, Divorce, and Admiralty Division, composed of two judges, ordinarily, for the disposition of appeals from the petty or quarter sessions, from the county court, and from divers other inferior tribunals.
(f) Above the Supreme Court, as a final court of appeal, is the House of Lords, whose appellate jurisdiction dates back to the thirteenth century. At present, however, only a few of its members take any part in the performance of its judicial functions. They are known as Lords of Appeal. The Lord Chancellor presides over them. (See Lords, House of.) The final court of appeal for cases arising in India and the colonies is the Privy Council (q.v.), which has also final appellate jurisdiction over judgments of the ecclesiastical courts and of the Naval Prize Court.
From the foregoing sketch of the English courts it is apparent that a litigated case may be passed upon by four successive tribunals. It may be instituted, for example, in a county court, thence appealed to a divisional court, thence to the Court of Appeals, and finally to the House of Lords. A similar series of appeals may terminate in the Privy Council.
II. In the United States, distinct systems of courts exist, one organized under the Federal Constitiition and statutes, the others under the Constitution and statutes of the several States.
Federal Courts. (a) Sec. 1 of Art. III. of the Federal Constitution declares that “the judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as Congress may from time to time establish.” By the second section of the same article, as modified by the Eleventh Amendment to the Constitution, the judicial power of these courts is extended to all cases in law and equity arising under the Federal Constitution, laws, and treaties; to all cases affecting foreign ambassadors, ministers, or consuls; to all admiralty and maritime cases; to controversies to which the United States shall be a party; to controversies between two or more States, between citizens of different States, between citizens of the same State claiming lands under grants of different States, between a State or the citizens thereof and foreign States, citizens, or subjects; and to suits by a State against a citizen of another State.
(b) Under the power conferred upon it to establish judicial tribunals inferior to the Supreme Court, Congress has established a Court of Claims, district courts, circuit courts, and circuit courts of appeal. Besides these, it has provided for various courts in the Territories. The latter are not, however, United States courts under article three of the Constitution, but are rather Congressional courts. They are called into being as an incident to the Congressional authority to make all needful rules and regulations respecting the territory of the United States. Their judges are not entitled to hold office during good behavior, but may be appointed for a term of years, and may be subject to suspension or removal from office by the President.
(c) The Court of Claims was established in 1855 to hear and determine certain classes of claims against the United States, thus permitting citizens in many cases to sue the Government. See Claims, Court of.
(d) By the act of 1789 the States were divided into thirteen districts, which have increased to sixty-nine (1902), each district having a judge, a clerk, a marshal, and an attorney appointed by the Federal Government. The district courts have an extensive jurisdiction, embracing jurisdiction over admiralty (q.v.) and maritime causes; suits arising under the revenue laws, the civil-rights statutes, and various other legislation; prosecutions for crimes against the United States or for the recovery of penalties under Federal laws; proceedings in bankruptcy, and many other subjects of litigation. See District Court.
(e) Next above the district courts are the circuit courts, originally six, now nine, in number, exercising both an original and appellate jurisdiction. They have original jurisdiction over many subjects concurrently with the State courts or the district courts. For example, many criminal prosecutions may be instituted either in the district court or the circuit court; and many civil actions, both of a common-law and of an equitable nature, may be brought in a State court or in a United States Circuit Court at the option of the plaintiff. In some civil suits, the amount involved, exclusive of interest and costs, must exceed $2000, in order that suit may be instituted in a circuit court. Most cases brought in one of these courts are controversies in which the United States or a State is the complainant, or are between citizens of different States, or involve rights secured by the Federal Constitution, or by Federal statutes or treaties. Originally these courts were held by members of the United States Supreme Court and by district judges, the Chief Justice and each of the associate justices of the Supreme Court spending a part of each year in the conduct of a circuit court. Later, circuit judges were provided for, the number being twenty-five at present (1902); and circuit courts may be held by a Supreme Court justice, or a circuit court judge, or a district judge, or by any two of these. The process of these courts runs to any part of the United States, so that a warrant of court issued by the circuit court in Florida may be served by a United States marshal in Alaska.
(f) By an act of Congress passed in 1891, the appellate jurisdiction of the circuit courts has been transferred to the circuit courts of appeal, of which there are nine—one in each circuit. Each of these courts consists of three judges, any two of whom constitute a quorum. Its members are selected from the following list: The Supreme Court justice assigned to the circuit in question, the circuit judges and the district judges of that circuit; but no justice or judge is allowed to sit in this tribunal in a case which was tried before him while holding a circuit or district court. It is apparent, therefore, that the personnel of these courts changes frequently.
(g) The final appellate tribunal of the Federal judiciary is the Supreme Court—probably the most unique and the most influential judicial body in the world. See Supreme Court of the United States.
III. The State courts are modeled after those of England. It is true they do not include admiralty nor ecclesiastical tribunals; but this is because admiralty and maritime jurisdiction is confided exclusively to the Federal courts by ​the Federal Constitution, and because there is no State Church in any of our commonwealths. That part of the powers of the English ecclesiastical courts relating to the estates of deceased persons and kindred subjects has been devolved in many States upon tribunals bearing various names, such as surrogates', probate, or orphans' courts. Most of the local or inferior courts, however, as well as the superior courts of law and of equity, were copied by State constitutions and statutes from English originals. In many of the States courts of chancery (q.v.) and of common law (q.v.) have been united into a single supreme court. It is impossible in this article to describe the judiciary system of each of the States, for in matters of detail they differ not a little; but a brief sketch of the New York courts will give the reader an idea of those existing in other States.
(a) To some extent these courts correspond to the territorial subdivisions of the State. For example, each town (q.v.)—the territorial unit in New York—is required to elect justices of the peace (q.v.), who are empowered to hold courts and to exercise a limited criminal as well as civil jurisdiction. In each county a county court is provided for, and also a surrogate's court; although in some counties these courts are held by the same judge. Other local courts, with a limited jurisdiction, have been erected by the Legislature, especially in cities and large villages. The Supreme Court possesses a general jurisdiction in law and equity throughout the State. It is composed (1902) of seventy-six justices, each of which is empowered to hold court in any county, although they are not elected by the State at large, but each is chosen by the electors in one of the eight judicial districts into which the State is divided. Some of these justices hold courts for the trial of cases or the determination of motions; while others, upon the selection of the Governor, constitute four courts of appeal, called appellate divisions, the State being divided into four departments, in each of which one of these courts has appellate jurisdiction. From determination by an appellate division an appeal may be taken in many cases (see Art. VI., § 9, of New York Constitution) to the Court of Appeals, the highest regular judicial tribunal of the State, from whose decision there is no appeal. It consists of a chief judge and six associate judges. A Court of Impeachments is also provided for by the State Constitution. This, however, is not a regular, but an extraordinary, tribunal, which rarely assembles.
(b) In some States the Supreme Court possesses original jurisdiction, and is also the final court of appeals. That is the case in Massachusetts, where an action brought in the Supreme Court may be tried and decided by a single justice, and from his decision an appeal may be taken to the full court. In that State the Supreme Court is the final tribunal for appeals from the decisions of a single justice; also from the Probate Court, the Insolvency Court, and the Superior Court—the Superior Court, in turn, possessing both original and appellate jurisdiction, appeals running to it from municipal, district, police, and justice courts.
Consult: Encyclopædia of the Laws of England (London, 1897); Curtis, Jurisdiction of the United States Courts (2d ed., Boston, 1896); Foster, Treatise on Federal Practice (Chicago, 1901); Cummings and Gilbert, Official Court Rules of New York (New York, 1900); The United States Constitution and Revised Statutes; the Constitutions and Statutes of the several States. For a separate treatment of special courts, see individual titles such as Common Pleas, Court of; Surrogate; Courts, Military; Probate Court; Arches, Courts of; Supreme Court of the United States; etc. Consult also the authorities referred to under such titles as Civil Law; Admiralty Law; Pleading; etc.