Page:The New International Encyclopædia 1st ed. v. 05.djvu/588

COURT. 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 prætorian 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.

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 hundredman), 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, Schöffen, échevins) 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 mediæval 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 (see ), 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.

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 mediæval 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.

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 (q.v.), (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;