The Online Library of Liberty

A project of Liberty Fund, Inc.

• Lectures On Law,
• Part I.: Lectures On Law.
• Chapter XII.: Of the Common Law.
• Chapter XIII.: Of the Nature and Philosophy of Evidence.
• Part 2.: Lectures On Law.
• Chapter I.: Of the Constitutions of the United States and of Pennsylvania—of the Legislative Department.
• Chapter II.: Of the Executive Department.
• Chapter III.: Of the Judicial Department.
• Chapter IV.: Of the Nature of Courts.
• Chapter V.: Of the Constituent Parts of Courts.—of the Judges.
• Chapter VI.: The Subject Continued. of Juries.
• Chapter VII.: The Subject Continued. of Sheriffs and Coroners.
• Chapter VIII.: The Subject Continued. of Counsellors and Attornies.
• Chapter IX.: The Subject Continued. of Constables.
• Chapter X.: Of Corporations.
• Chapter XI.: Of Citizens and Aliens.
• Chapter XII.: Of the Natural Rights of Individuals.
• Part 3.: Lectures On Law.
• Chapter I.: Of the Nature of Crimes; and the Necessity and Proportion of Punishments.
• Chapter II.: Of Crimes Against the Right of Individuals to Their Property.
• Chapter III.: Of Crimes Against the Right of Individuals to Liberty, and to Reputation.
• Chapter IV.: Of Crimes Against the Right of Individuals to Personal Safety.
• Chapter V.: Of Crimes, Immediately Against the Community.
• Chapter VI.: Of Crimes, Affecting Several of the Natural Rights of Individuals.
• Chapter VII.: Of Crimes Against the Rights of Individuals Acquired Under Civil Government.
• Chapter VIII.: Of the Persons Capable of Committing Crimes; and of the Different Degrees of Guilt Incurred In the Commission of the Same Crime.
• Chapter IX.: Of the Direct Means Used By the Law to Prevent Offences.
• Chapter X.: Of the Different Steps Prescribed By the Law, For Apprehending, Detaining, Trying, and Punishing Offenders.
• Bibliographical Glossary *
• Afterword

CHAPTER IV.

Of the Nature of Courts.

The next subjects of my remarks are, the nature, and the constituent parts of courts.

That the judicial department should be independent, is a principle, which, in a former part of my lectures,a I had an opportunity of stating, explaining, and enforcing at large. In the review which we have now made of that department, as established in the United States and in this commonwealth, we see what a strict and uniform regard has been paid to the practical observance of this very important principle. To neither of the constitutions is a judicial magistrate known, who holds his office by a tenure less secure or less respectable than that of his own good behaviour.

All courts should be open. This is one of the rules, which, by the constitution of Pennsylvania,b is rendered inviolable by the legislature itself. It is a rule of the highest moment.

The place of administering justice was originally at the gates of the cities—in other words, in the presence of all the people. Such was the practice in the days of Job.c By Moses also, of legislators the first and wisest, the same ancient custom is mentioned.d Homer speaks of it as subsisting in the heroick ages.e In some countries, this simple and undisguised mode is still observed.f

Among the Saxons, as we are informed by Selden, their courts, like the heliastick court at Athens, were, for the most part, kept in the open air.g

By the ancient Romans, trials were held in publick, in the presence of the accused, and of all who wished to hear them. This procedure was open and noble; says the writerh who mentions it; it breathed Roman magnanimity.

In France, too, as appears, we are told, from some old manuscript law books, criminal processes were anciently carried on in publick, and in a form not very different from the publick judgments of the Romans. “The witnesses,” says Beaumanoir, one of the oldest writers on the laws of France, “ought to give their testimony in open court.”i

All trials, says Beccaria,j should be publick; that opinion, which is the best, or, perhaps, the only cement of society, may curb the authority of the powerful, and the passions of the judge; and that the people, inspired with courage, may say, “We are not slaves; we are protected by the laws.”

“Let not,” says my Lord Bacon,k in the same spirit of sound sense, “decrees issue in silence: let judges give the reasons of their judgments: let them do this openly; that what is unrestrained in point of authority, may be circumscribed by a regard to character and fame.”

But why, it may be asked, are examples produced in such numbers—why do we cite authorities of so much weight, in order to establish a principle, in itself so extremely plain? Is it not selfevident, that, in a court of justice, every one is entitled to a publick trial? Why, then, refer us to instances, in Asia, in Greece, in Rome, in France, of the enjoyment of a selfevident right?

Because, in Asia, in Greece, in Rome, in France, too, till very lately, the enjoyment of this selfevident right has been lost. Liberty, indeed, says it is selfevident: but tyranny holds a contrary language; and unfortunately for the human race, the voice of tyranny has been more loud and more powerful than the voice of freedom.

To states as well as to individuals, the lesson is salutary—let those, who stand, take heed lest they fall. Asia is fallen, Greece is fallen, Rome is fallen, France is fallen—I correct myself—she rises. Let the other monitory instances suggest caution: I offer them not to your imitation.

The slave who suffers, and the slave who dreads the inquisition—how would he exult to be able to say, in the irrevocable language of Pennsylvania, “all courts shall be open.”

According to the rules of judicial architecture, a system of courts should resemble a pyramid. Its base should be broad and spacious: it should lessen as it rises: its summit should be a single point. To express myself without a metaphor—in every judicial department, well arranged and well organized, there should be a regular, progressive gradation of jurisdiction; and one supreme tribunal should superintend and govern all the others.

An arrangement in this manner is proper for two reasons. 1. The supreme tribunal produces and preserves a uniformity of decision through the whole judicial system. 2. It confines and it supports every inferiour court within the limits of its just jurisdiction.

If no superintending tribunal of this nature were established, different courts might adopt different and even contradictory rules of decision; and the distractions, springing from these different and contradictory rules, would be without remedy and without end. Opposite determinations of the same question, in different courts, would be equally final and irreversible. But when, from those opposite determinations, an appeal to a jurisdiction superiour to both is provided, one of them will receive a sentence of confirmation, the other, of reversal. Upon future occasions, the determination confirmed will be considered as an authority; the determination reversed will be viewed as a beacon.

Ampliare jurisdictionem1 has been a principle avowed by some judges: it is natural, and will operate where it is not avowed. It will operate powerfully and irresistibly among a number of coordinate and independent jurisdictions; and, without a tribunal possessing a control over all, the pernicious and interfering claims could neither be checked nor adjusted. But a supreme court prohibits the abuse, and protects the exercise, of every inferiour judiciary power.

In France, before the present revolution, the establishment of a number of parliaments or independent tribunals produced, in the different provinces, a number of incongruous and jarring decisions. This has been assigned, and with much apparent reason, as the great source of that diversity of customs and laws, which prevailed, to an uncommon degree, in the different parts of the kingdom of France, in other respects so well compacted.

In England, the principles and the rules of law are, through the whole judiciary department, reduced to a standard, uniform in an exemplary degree. In no country perhaps, does a stronger impression prevail of the advantages resulting from stability in the administration of justice. But by an unwise inattention, to say the least of it, to the inferiour establishments, the base of the exquisitely proportioned edifice, erected by Alfred, is narrowed and weakened; and its beauty and durability are consequently impaired.

In the United States and Pennsylvania—for here we must take the two constitutions in a collected view—a fine and regular gradation appears, from the justices of the peace in the commonwealth, to the supreme court of the national government. The justice of peace is, in criminal matters, assisting to the court of quarter sessions: in civil causes, his jurisdiction is subordinate to the court of common pleas. The courts of common pleas, and quarter sessions, and orphans’ courts of each county are subordinate to the supreme court, whose jurisdiction extends over the commonwealth. The supreme court is, by a late law, rendered subordinate to the high court of errours and appeals. With regard to the register’s court, an exception is introduced by the law just now mentioned. Though a county jurisdiction, it is not rendered subordinate to the supreme court by an appeal: that revisionary process is directed per saltum2 to the high court of errours and appeals. From the highest court of a state, a writ of errour lies, in federal causes, to the supreme court of the United States. In the national government, a writ of errour lies from a district to a circuit court, and from a circuit to the supreme court.

In controversies, to which the state or nation is a party, the state or nation itself ought to be amenable before the judicial powers. This principle, dignified because it is just, is expressly ratified by the constitution of Pennsylvania.l It declares, that suits may be brought against the commonwealth. The manner, the courts, and the cases, in which they may be brought, are left to the direction of the legislature. It was deemed sufficient to recognise the principle: its operation will be guided in such a way, as time and circumstances shall suggest. Upon the same principle, the judicial power of the national government “shall extend to controversies to which the United States are a party; and to controversies between two or more states.”m

These provisions may be viewed by some as incompatible with the opinions, which they have formed concerning the sovereignty of the states.

In the introduction to my lectures,n I had an opportunity of showing the astonishing and intricate mazes, in which politicians and philosophers have, on this subject, bewildered themselves, and of evincing, that the dread and redoubtable sovereign, when traced to his ultimate and genuine source, is found, as he ought to be found, in the free and independent man. In one of my lectures,o I proved, I hope, that the only reason, why a free and independent man was bound by human laws, was this—that he bound himself. Upon the same principle on which he becomes bound by the laws, he becomes amenable before the courts of justice, which are formed and authorized by those laws. If one free and independent man, an original sovereign, may do all this; why may not an aggregate of free and independent men, a collection of original sovereigns, do this likewise? The dignity of the state is compounded of the dignity of its members. If the dignity of each singly is undiminished, the dignity of all jointly must be unimpaired. Is a man degraded by the manly declaration, that he renders himself amenable to justice? Can a similar declaration degrade a state?

To be privileged from the awards of equal justice, is a disgrace, instead of being an honour; but a state claims a privilege from the awards of equal justice, when she refuses to become a party, unless, in the same case, she becomes a judge.

“In any cause”—said the judge of the high court of admiralty of England, in a very late decisionp —“In any cause where the crown is a party, it can no more withhold evidence of documents in its possession, than a private person. If the court thinks proper to order the production of any publick instrument, that order must be obeyed.”

In the Mirrour of Justices, we have an account of the first constitutions ordained by the ancient kings of England. When the writer of that book calls them ancient, they must be so indeed; for my Lord Cokeq informs us, that most of it was written long before the conquest. Among these constitutions, we find the following very remarkable one. “It was ordained that the king’s court should be open to all plaintiffs; from which they should have, without delay, remedial writs, as well against the king or the queen as against any other of the people.”r You are pleased by tracing another instance, in which Saxon principles are renewed by our constitutions.

“Judges ought to know, that the poorest peasant is a man, as well as the king himself: all men ought to obtain justice; since in the eyes of justice, all men are equal; whether the prince complain of a peasant, or a peasant complain of the prince.”s These are the words of a king—of the late Frederick of Prussia.3 In his courts of justice, that great man stood upon his native greatness, and disdained to mount upon the artificial stilts of sovereignty.

In England, there is a noted distinction, which runs through the whole system of courts. Some are courts of record: others are courts not of record.

A court of record is one, whose proceedings and acts are entered in rolls of parchment, and whose power is to hold pleas according to the course of the common law. These rolls, being the memorials of the judges, import in them such incontrollable credit, that they admit no averment, or plea, or proof, to the contrary of what they contain. Such a record can be tried only by itself.t No possible kind of evidence, not even that of the senses, can shake its authenticity; if we may rely on the authority of a well known story in Westminster Hall. A party, in perfect health, was hearing his cause; but his counsel, by an unfortunate stroke of his plea, had killed him on the record. The judges could, by no means, take notice of him, though he stood before their eyes. He averred that he was alive: his averment could not be received: it was against the record.u

A court, not of record, is one, whose acts are not enrolled in parchment, or whose proceedings are not according to the course of the common law.v

It deserves to be remarked, that the distinction between courts of record and courts not of record was unknown in England till after the Norman conquest.w The occasion and the cause of its introduction deserve also to be remarked. The Conqueror,4 averse to the Saxon law of liberty, but unwilling to run the risk of an attempt to overturn it at once, formed a plan, artful and too successful, for undermining it by degrees. He appointed all the judges of the curia regis from among the Normans, ignorant of the Saxon laws, and fond of their own. The language of the court was altered; and all pleadings and proceedings were entered in the Norman tongue. This introduced the technical terms and, imperceptibly, the rules and maxims of that foreign jurisprudence.

This introduction of a new language, the exaltation of the aula regis, and the consequent depression of the county courts, paved the way, in the opinion of a very sensible lawyer,x for the distinction between courts of record and not of record. Courts of record were those, whose proceedings were duly entered in the Norman tongue, and, unless reversed, could never be questioned or contradicted. To have allowed such a privilege to the county courts, in which the Saxon suitors were judges, and whose proceedings were in the English language, would have been inconsistent with the genius of the Conqueror’s plan; for it would have had a tendency to confirm, rather than to depress, the Saxon system. The county courts, therefore, were considered as courts not of record.

From any thing I have said, no inference, I hope, will be drawn, that I deem fidelity and exactness in registering and preserving the acts of courts of justice as matters of small importance: they are of the greatest. I only mean to enter my protestation against a sacrifice of the principles of common sense, to a superstitious regard for the infallibility of records.

[a. ]Ante, vol. 1. p. 703.

[b. ]Art. 9. s. 11.

[c. ]Job xxix. 7.

[d. ]Gen. xxiii. 18.

[e. ]Il. l. 18. v. 497.

[f. ]1. Gog. Or. L. 28.

[g. ]Bac. on Gov. 10.

[h. ]Com. on Bec. c. 22.

[i. ]Mont. Sp. L. b. 28. c. 34.

[j. ]C. 14.

[k. ]1. Ld. Bac. 252. Aph. 38.

[1. ]To enlarge the jurisdiction.

[2. ]By a leap.

[l. ]Art. 9. s. 11.

[m. ]Cons. U. S. art. 3. s. 2.

[n. ]Ante. vol. 1. p. 444. 445.

[o. ]Ante. vol. 1. p. 572. et seq.

[p. ]1. Col. Jur. 68.

[q. ]10. Rep. Pref. 14.

[r. ]4. Cou. Ang. Norm. 437.

[s. ]Warv. 343.

[3. ]Frederick II (1712–1786) ruled Prussia from 1740 to 1786. He is often referred to as Frederick the Great.

[t. ]1. Inst. 260.

[u. ]Bar. on st. 248.

[v. ]Wood. Ins. 464.

[w. ]1. Reev. 68.

[4. ]William of Normandy (c. 1028–1087) defeated the English at the Battle of Hastings in 1066 and ruled England as king from 1066 to 1087.

[x. ]Sulliv. 271.