Page:The American Cyclopædia (1879) Volume XIV.djvu/248

 232 RECORD ceedings of the courts in which they are pre- served, they are regarded with particular con- sideration, and are generally a proof of such a high and absolute nature as to admit of no con- tradiction. In Sir Edward Coke's words, they "import in themselves such uncontrollable credit and verity, as they admit of no aver- ment, plea, or proof to the contrary." The existence of a record can only be tried by itself ; that is, if in any action the existence of any matter on record is alleged, and the ad- verse party pleads nul tiel record, or that there is no such record, the issue arising thereon is determined merely by the inspection of the record itself by the court, without witnesses or jury, because no issue can be joined upon it to be tried by a jury as upon matters of fact ; and the record is conclusive proof without further evidence. The peculiar privilege of some courts to have these memorials has of itself created the great leading distinction, equally recog- nized in English and American law, between courts of record and courts not of record. Though courts not of record may keep minutes or memorials of their proceedings, such min- utes are not properly records. Legally, the term records applies to the rolls of such only as are courts of record, and not to the rolls of inferior or any other courts which proceed not secun/lum legem et comuetudinem Anglm, or according to the laws and customs of England. During that term of the court in which any judicial act is to bo done, or before the case pending is concluded, the record is said to re- main in the breast of the judges of the court, and in their remembrance, and therefore it may be altered during that term in such manner as the judges shall direct. But as soon as that term is ended the record is closed, and it is then said to admit of no change, alteration, or proof to the contrary. But some courts claim and exercise the right to make amendments therein whenever the record is found not to conform to the facts. The practice of record- ing is said to bo of Norman origin. It existed in the French law, generally, as early as the time of the conquest, if not earlier, and in the same form as that which it bore in Normandy. In the Assises de Jerusalem, which was a code of feudal jurisprudence compiled as early as 1099, and intended for the kingdom of Jerusa- lem then newly established, litigants were di- rected to collect as many of their own friends as possible in court, and request them to attend to what was said, so that they might retain and record it properly at the time of judgment or trial. They were further directed, if there should be an adjournment or further day ap- pointed for the hearing, that both plaintiff and defendant should put down in writing the nature of the claim and other particulars, in order that they might testify to them at the adjourned meeting if necessary, and thereby assist or con- firm the recollection of the judges. This practice finally became developed, from the mere pri- vate memoranda of the pleaders, into an official contemporaneous minute of the proceedings. "Whether this change," says Mr. Stephens, " had fully taken place at the date of Glanvil's treatise (in the reign of Henry II.), that work does not enable us accurately to decide. How- ever, we find, at least very shortly after that period, the practice of recording, in the present sense of the term, was in full operation." Next to Domesday Book, which, though not a legisla- tive record, has all the validity of one, is the "Exchequer Register" (Pipe Roll) of 31 Hen- ry I. The series of legal records in the court of king's bench, now extant, reach from the reign of Richard I. to the present day. The peculiar construction of the record, showing as it did every proceeding in the action precisely as it took place, gave it at a very early period the highest authority as a judicial memorial ; and its importance in this particular led to a suitable degree of care in framing and pre- serving it. Its language gradually reached the highest degree of precision and uniformity, and the whole instrument settled at last into a fixed form of expression, which neither admit- ted of nor required any variation. When writ- ten pleadings took the place of oral, they were framed in the same manner as they had previ- ously appeared on the record, and were in fact simply extracts from it, the same concise and technical forms of expression being always used. From this arose a leading principle of practice, viz., that every proceeding in an action in- tended or required to appear on the record, must bo framed in the language of the record, and with the same exactness as the record itself. Two other circumstances united to give the record the unchangeable character which has accompanied it down to modern times, and al- most to the present day. One was, that it was kept in Latin, a language which admitted of no variation ; and the other was its inviolable character, which preserved it from the slight- est alteration after being once made up. The substitution of the English for the Latin lan- guage, and of ordinary writing for the " an- cient and immutable court hand," took place in the reign of George II., and was considered by competent judges of that time as a dangerous innovation. It has been certainly followed by other important alterations and modifications, which have greatly impaired the original char- acter of the record as a complete and immutable memorial of all the proceedings in an action. The old continuances and the formal commence- ments and conclusions of the pleadings are now omitted, the language of the pleadings them- selves is greatly modified, and the present ten- dency undoubtedly is to deprive the record in a great measure of the high dignity and impor- tance which it anciently possessed. II. Record, as the title, or rather evidence of title to real estate, by the record or register of title deeds, is of American origin. The usage has prevailed from the early settlement of New England, and is now universal throughout the United States. By the laws of Massachusetts in 1641