Page:The New International Encyclopædia 1st ed. v. 05.djvu/587

COURT. COURT (Fr. cour, It. corte, from Lat. cohors, inclosure, from co- together + *hors, connected with Lat. hortus, garden, Gk., chortos, hay, OIr. gort, sedge, Goth. gards, court, OHG. garto, Ger. Garten, AS. geard, Engl. yard). Courts, in the legal sense—i.e. 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.

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, 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.

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). (See .) During the last century of the Republic, criminal courts of a different type, the quæstiones, gradually absorbed the jurisdiction previously exercised by the assembly. The quæstio was a body of select jurors sitting under the presidency of a special magistrate, usually a prætor. 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 prætor 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 prætor; 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 decision. Under this system the administration of