1902 Encyclopedia > Court


COURT. This name is now usually restricted to judicial tribunals, almost the only exception being the household of the king, which is still called the Court. All courts are not even now purely judicial in character ; the County Court, for instance, is still the assembly of the free-holders of the county in which representatives and certain officers are elected. Such assemblies in early times exer-cised political and legislative as well as judicial functions. But these have now been almost entirely separated every-where, 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 in-variably 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 ex-pressly, 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, which are still printed in modern editions of the commentaries, might give a false impression of the his-torical 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 pos> Bible 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.

1. We may distinguish between courts exercising general and those exercising special jurisdiction. The latter are the Admiralty, Ecclesiastical, and University Courts, the limits of which are sufficiently indicated by their names. These administer principles of justice founded on the canon and civil law, but the extent of their jurisdiction is ascertained by the Common Law Courts. 2. Superior and inferior courts. The former are the Courts of Com-mon Law at Westminster, and the Court of Chancery, now High Court of Justice. The latter are the local or district courts, County Courts, &c. 3. 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 superemi-nent 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 con-trary. 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 suchrecord 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). 4. Courts may also be distin-guished as civil or criminal. 5. A further distinction is to bo 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. 6. There is a special class of local courts, which do not appear to fall within either the first or second of the classes above-mentioned. Some, while administering the ordinary muni-cipal law, have or had jurisdiction exclusive of their superior courts ; such were the Common Pleas of Durham and Lancaster (now trans-ferred to the High Court of Justice), and such still is the Chancery Court of the duchy of Lancaster. Others have concurrent jurisdic-tion 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 may be exhibited as follows.

Criminal Courts.—1. The lowest is that of the justice of the peace, sitting singly, but more usually in petty sessions of two or more, tode-termine in a summary way certain specified minor offences. In populous districts, such as London, Manchester, &e., stipendiary magis-trates 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. The 5 and 6 Vict c. 38 contains a list of offences not triable at Quarter Sessions —treason, murder, forgery, bigamy, &c, (see QUARTER SESSIONS). The corresponding court in boroughs is presided over by the 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 winter assizes are now held under 39 and 40 Vict. c. 57, which permits several counties to be united together for that purpose. London, which occupies an exceptional position in all matters of judicature, has a high criminal court of its own, established by 4 and 5 Will, IV. c. 36, 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 sergeant, and the judge of the City of London Court. The Court of Queen's Bench (now Queen's Bench Division) has a general superintendence over all other courts of criminal juris-diction, and criminal cases may be moved into the Queen's Bench by the writ of certiorari. By 11 and 12 Vict. c. 78, the Court for Crown Cases Reserved was established, to which any question of law arising on the trial of a prisoner may after con-viction be remitted by the judge in his discretion.

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 the country may be said to be divided between the County Courts (taking small cases) and the High Court of Justice (taking all others). Before the constitution of the High Court of Justice the judges of the common law courts sat separately with, a jury to try cases at Nisi Prius, the sittings being at Westminster for Middlesex, at Guildhall for the City of London, and according to circuits for the rest of the country ; and this arrangement is still followed by the divisions corresponding to the common law courts.

The effect of the recent 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 divi-sions 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 Exche-quer Chamber, and the appellate jurisdiction in admiralty and heresy matters of the judicial committee; and power is given to the Queen 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 now enabled to sit for the hearing of appeals from the English Court of Appeal and the Scotch and Irish courts during the prorogation and dissolution of Par-liament. The lords of appeal, of whom three must be present, are the lord chancellor, the lords of appeal in ordinary, and peera who have held "high judicial office" in Great Britain or Ireland. The lords in ordinary are an innovation in the con-stitution 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.

Among obsolete or decayed courts, besides those incidentally mentioned above, the following are the most noticeable :—

Court Leet, an old local court described as the most ancient known to the law. It was a court of record, and exercised civil as well as criminal jurisdiction. Its origin and nature are fully discussed in Scriven On Copyhold.

Court Baron, the court of a manor, presided over by the lord, and of which the free tenants of the manor are suitors.

Court of Pié Poudre {pedis pulverisati), having jurisdiction in fairs and markets.

Court of Chivalry, or Knights' Court, held by the lord high constable, in matters relating to jousts and tournaments.

The Court of the Marshalsea of the Household of the Kings of England, and the Court of our Lady the Queen, of the Palace of the Queen at AVestminster, and Her Majesty's Court of Record for the Honour of Peveril are abolished by the 12 and 13 Vict, c. 101.

The history of English courts affords a remarkable illustration of the continuity that characterizes our institu-tions. It would hardly be too much to say that all the courts now sitting in England may be traced back to a common origin, and 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 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 the Great Charter, 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 thesa branches, is represented by. the Queen'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 our later history In one line of development the council becomes, by the addi-tion of representatives from counties and boroughs, the Par-liament in its two Houses of Lords and Commons. "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 ecclesi-astical 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 by 2 and 3 Will. FVT c. 92, 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. (E. B.)

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