In the legal sense, 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). During the last century of the Republic, criminal courts of a different type, the quoestiones, gradually absorbed the jurisdiction previously exercised by the assembly. The quaestio was a body of select jurors sitting under the presidency of a special magistrate, usually a praetor. 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 praetor 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 praetor; 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 decisiion. 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 praetorian 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 Medleval 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 hundred man), 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, Schoffen, Echevins) 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 mediaeval 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, 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 mediaeval 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.