The 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 Court, 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.

(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 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.

(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 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 statutes.

(e) By a series of judicature actors, 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. The final court of appeal for cases arising in India and the colonies is the Privy Council, 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.