What is a court?
By Bill Thornton [ed]:
Most attorneys will tell you that a court is a forum where litigants
may take problems for resolution. Others will tell you that the terms
"court" and "judge" are interchangeable. Then there are the various
dictionary definitions. But, here is the real substance of a court:
A court is a stage
upon which the sovereign conducts his show
so as to satisfy the rest of the world that his decision is a good one.
The modern concept of a court is based on the ancient English
traditions.
Modern court procedure still adheres to the traditions of the past.
You can see this in the various rules, statutes, and canons. For
example, in Canon 2 of the CODE OF JUDICIAL CONDUCT it is well
understood that "A judge shall comply with the law and should act at all
times in a manner that promotes public confidence in the integrity and
impartiality of the judiciary." There is no specific requirement that he
actually have integrity and impartiality beyond that minimum required by
law; only that the judge should act in a manner that promotes that
image.
Maintaining image while protecting sovereign interests is probably
the most important function of a court. The actual effectiveness of a
government court in meting out justice has been questioned. Spend a day
in any traffic court and you will get the full flavor of how the courts
protect sovereign interests as they put on a show of procedural
propriety.
Court of Record
This writer concludes, from the definitions below, that a court of
record is a court which must meet the following criteria:
- generally has a seal
- power to fine or imprison for contempt
- keeps a record of the proceedings
- proceeding according to the common law (not statutes or codes)
- the tribunal is independent of the magistrate (judge)
Note that a judge is a magistrate and is not the tribunal. The
tribunal is either the sovereign himself, or a fully empowered jury (not
paid by the government)
Black's Law Dictionary, 4th Ed., 425, 426: COURT. ... INTERNATIONAL
LAW
"The person and suite of the sovereign; the place where the sovereign
sojourns with his regal retinue, wherever that may be."
....
CLASSIFICATION
Courts may be classified and divided according to several methods, the
following being the more usual:
COURTS OF RECORD and COURTS NOT OF RECORD. The former being those
whose acts and judicial proceedings are enrolled, or recorded, for a
perpetual memory and testimony, and which have power to fine or imprison
for contempt. Error lies to their judgments, and they generally possess
a seal. Courts not of record are those of inferior dignity, which have
no power to fine or imprison, and in which the proceedings are not
enrolled or recorded. 3 Bl. Comm. 24; 3 Steph. Comm. 383; The Thomas
Fletcher, C.C.Ga., 24 F. 481; Ex parte Thistleton, 52 Cal 225; Erwin v.
U.S., D.C.Ga., 37 F. 488, 2 L.R.A. 229; Heininger v. Davis, 96 Ohio St.
205, 117 N.E. 229, 231.
A "court of record" is a judicial tribunal having attributes and
exercising functions independently of the person of the
magistrate designated generally to hold it, and proceeding according to
the course of common law, its acts and proceedings being enrolled for a
perpetual memorial. Jones v. Jones, 188 Mo.App. 220, 175 S.W. 227, 229;
Ex parte Gladhill, 8 Metc. Mass., 171, per Shaw, C.J. See, also, Ledwith
v. Rosalsky, 244 N.Y.
406, 155 N.E. 688, 689.
MAGISTRATE
A person holding official power in a government; as: a The official
of highest rank in a government (chief, or first,
magistrate). b An official of a class having summary, often criminal,
jurisdiction.
- Webster's New Practical Dictionary, 386 (1953) G. & C. Merriam Co.,
Springfield, Mass.
MAGISTRATE
an official entrusted with administration of the laws
- Merriam-Webster On-Line Dictionary
MAGISTRATE
Person clothed with power as a public civil officer. State ex rel.
Miller v. McLeod, 142 Fla. 254, 194 So. 628, 630.
A public officer belonging to the civil organization of the state, and
invested with powers and functions which may be either
judicial, legislative, or executive. But the term is commonly used in a
narrower sense, designating, in England, a person
intrusted with the commission of the peace, and, in America, one of the
class of inferior judicial officers, such as justices of
the peace and police justices. Martin v. State, 32 Ark. 124; Ex parte
White, 15 Nev. 146, 37 Am.Rep. 466; State v. Allen, 83 Fla. 655, 92 So.
155, 156; Merritt v. Merritt, 193 Iowa 899, 188 N.W. 32, 34.
- Black's Law Dictionary, 4th Ed., 1103
....
The word "magistrate" does not necessarily imply an officer
exercising any judicial functions, and might very well be held to
embrace notaries and commissioners of deeds. Schultz v.Merchants' Ins.
Co., 57 Mo. 336.
California Penal Code
7. Words and phrases....The following words have in this code the
signification attached to them in this section, unless
otherwise apparent from the context:....
9. The word "magistrate" signifies any one of the officers mentioned
in Section 808. ....
807. Magistrate defined. A magistrate is an officer having power to
issue a warrant for the arrest of a person charged with
a public offense. (Enacted 1872.)
808. Persons designated as magistrates The following persons are
magistrates:
- The judges of the Supreme Court
- The judges of the courts of appeal.
- The judges of the superior courts.
- The judges of the municipal courts.
- The judges of the justice courts.
TRIBUNAL
The seat of a judge; the place where he administers justice. The
whole body of judges who compose a jurisdiction; a judicial court; the
jurisdiction which the judges exercise. See Foster v. Worcester,
16 Pick. (Mass.) 81.
- Black's Law Dictionary, 4th Ed., 1677
TRIBUNE
- In ancient Rome, a magistrate whose special function was
to protect the interests of plebeian citizens from the patricians.
- Any defender of the people.
- Webster's New Practical Dictionary, 707 (1953) G. & C. Merriam Co.,
Springfield, Mass.
COURT
- the residence of a sovereign or similar dignitary
- a sovereign and his officials and advisers as a governing power
- an assembly of the retinue of a sovereign
- an open space enclosed by a building or buildings
- a space walled or marked off for playing a game (as tennis or
basketball)
- the place where justice is administered; also: a judicial
- body or a meeting of a judicial body
- Merriam-Webster On-Line Dictionary
A "minute order" issued by a judge is not part of the record.
RECORD
The proceedings of the courts of common law are records. But every
minute made by a clerk of a court for his own future guidance in making
up his record is not a record. 4 Wash. C.C. 698. See 10 Penn. St. 157; 2
Pick. Mass. 448; 4 N. II. 450; 6 id. 567; 5 Ohio St. 545; 3 Wend. N.Y.
267; 2 Vt. 573; 6 id. 580; 5 Day, Conn. 363; 3 T. B. Monr. Ky. 63.
"The Common-Law Record consists of the Process, the Pleadings, the
Verdict and the Judgment. After Judgment, such Errors were Reviewable by
Writ of Error. Errors which occurred at the Trial were not part of the
Common-Law Record, and could be Reviewed by a Motion for a New Trial,
after Verdict and before Judgment; by Statute, such Errors could be
Reviewed after judgment by incorporating them into the Record by means
of a Bill of Exceptions. It was therefore essential to keep clearly in
mind the distinction between Matter of Record and Matter of Exception.
"UNDER the ancient practice, the Proceedings in a litigated case were
Entered upon the Parchment Roll, and when this was completed, the end
product became known as the Common-Law Record. It consisted of Four
Parts, the Process, which included the Original Writ and the Return of
the Sheriff, by which the Court acquired Jurisdiction over the
defendant; the Pleadings, presented by the Parties in the prescribed
order to develop an Issue of Law or of Fact, and which included the
Declaration and all subsequent Pleadings, together with the Demurrers,
if any; the Verdict; and the Judgment. These Four Elements formed the
Common-Law Record, but it should be observed that at the point where the
Retrospective Motions come into play, the Record has not been developed
beyond the Stage of Entering the Verdict upon the Roll. At this point it
should also be recalled that between the time when the Pleadings
Terminated in an Issue, which Joinder in Issue was duly Recorded on the
Parchment Roll, and the time when an Entry of the Verdict was made,
nothing was Recorded on the Parchment Roll. The reason for this was that
between the Joinder of Issue and the Rendition of the Verdict, the Trial
takes place, and what occurs during this Trial does not Appear upon the
Face of the Common-Law Record. Thus, Offers and Rejection of Evidence,
the Court’s Instruction of the Jury, or its Refusal to Instruct as
requested by Counsel, or any Misconduct Connected with the Trial, such
as Prejudicial Remarks on the Part of the Court, and the like—that
is—any Error that occurs at the Trial—cannot be corrected by resort to
the Common-Law Record because not Apparent Upon its Face. Such Errors
were preserved only in the notes made by the Presiding Judge, or in his
memory, and were reviewable, after Verdict and before Final Judgment, by
a Motion for New Trial made before the Court En Banc at Westminster,
within four days after the Commencement of the Next Term following the
Rendition of the Verdict. As each of the Judges of the Court had Motions
of a similar character coming up for decision from the Trials over which
they had presided, the natural inclination of each Judge was to support
the Rulings of his brother Jurists, and thus Overrule the Motion for a
New Trial. Furthermore, Errors that occurred at the Trial were not
Reviewable after Judgment on Writ of Error, because Not Apparent on any
one of the Four Parts of the Common-Law Record. To remedy this Defect,
Parliament enacted Chapter 31 of the Statute of Westminster II in 1285,6
which provided for Review of such Errors through the use of what came to
be known as a Bill of Exceptions.
"Thus, it appears that in four out of five Retrospective Motions, the
Court is permitted to consider only Defects Apparent Upon the Face of
Part of the Common-Law Record—the Process, the Pleadings, and the
Verdict—and Errors Occurring at the Trial were regarded as extraneous
and not to be considered in rendering Judgment upon the Motions. Matters
extraneous to or outside of the Record could be tested after Verdict and
before Judgment only by a Motion for a New Trial. A distinction is made
between Matter of Record and Matter of Exception, Matter of Record
referring to those Errors Apparent upon the Face of the Common-Law
Record and hence Reviewable after Final Judgment upon a Writ of Error,
and Matter of Exception referring to those Errors which Occurred at the
Trial, and were Not Apparent on the Face of the Common-Law Record, hence
Reviewable after Final Judgment only by incorporating such Errors into
the Record by means of a Bill of Exceptions, as authorized by Chapter 31
of the Statute of Westminster II in 1285."
Koffler: Common Law Pleading 567-568
Proceedings in courts of chancery are said not to be, strictly
speaking, records; but they are so considered. Gresley, Ev. 101. And see
8 Mart. La. N. S. 303; 1 Rawle, Penn. 381; 8 Yorg. Tenn. 142; 1 Pet. C.
C. 352.
Bouvier's Law Dictionary, 14th Ed. (1870)
MINUTE
In practice. A memorandum of what takes place in court, made by
authority of the court. From these minutes the record is afterwards made
up.
Toulier says they are so called because the writing in which they
were originally was small; that the word is derived from the Latin
minuta (scriptura), in opposition to copies which were delivered to the
parties, and which were always written in a larger hand. 8 Toullier, n.
413.
Minutes are not considered as any part of the record. 1 Ohio, 268.
See 23 Pick. Mass. 184.
Bouvier's Law Dictionary, 14th Ed. (1870)
MINUTE BOOK
A book kept by the clerk or prothonotary of a court, in which minutes
of its proceedings are entered.
Bouvier's Law Dictionary, 14th Ed. (1870) |
