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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, 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 honor; 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 decision 2“ 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 public instrument, that order must be obeyed.”

In the Mirror 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 Coke 3 informs us,

2 1 Col. Jur. 68.

1 Ante, vol. 1, p. 190, et seq.
8 10 Rep. Pref. 14.


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.” 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.”These are the words of a king -of the late Frederick of Prussia. 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. No possible kind of evidence, not even that of the senses, can shake its authenticity ; if we may rely on the authority of a wellknown story in Westminter 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

14 Cou. Ang. Norm. 487.

2 Wary, 343.

8 1 Inst. 260.

he stood before their eyes.

He averred that he was alive: his averment could not be received; it was against the record. 1

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.?

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.3 The occasion and the cause of its introduction deserve also to be remarked. The Conqueror, 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,4 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

1 Bar. on St. 248.
31 Reey. 68.

2 Wood. Ins. 464.
4 Sulliv, 271.

than to depress, the Saxon system. The county courts, therefore, were considered as courts not of record.1

From anything 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.2

[1 The distinction between courts as of record and courts not of record seems not to have any practical basis in the facts or utility in practice. Magistrates are required to keep a record of their proceedings and are courts of record. Hendrick v. Whitman, 105 Mass. 28 ; Ellsworth o. Leonard, 21 Vt. 537. The true classification, and one based upon a practical difference, is into courts of general and courts of special jurisdiction. Obert v. Hannell, 18 New Jersey Law Rep. 73. The practical distinction is between the presumption indulged in as to jurisdiction.]

[2 The sentiment of this protest now generally prevails ; the jurisdiction may be attacked and an allegation against the record is not regarded now as formerly.)




I now proceed to consider the constituent parts of courts. The judges form one of those constituent parts. Let me introduce their character by the beautiful and correct description of the Magna Charta of King John. A judge should know the laws: he should be disposed to observe them.

It seems to be the opinion of some, that severity should be the striking feature in a judge's countenance. His countenance should reflect the sentiments of his heart. In his heart should be written the words of the law. If the law say, and the law does say, that, in all its judgments, justice shall be executed in mercy; on the heart of a judge will this heavenly maxim be deeply engraven; in his looks it will beam.

-Nec supplex turba timebunt.
Judicis ora sui ; sed erunt sub judice tuti.


He ought, indeed, to be a terror to evil-doers ; but he ought also to be a praise to those who do well. The more numerous as well as the more valuable part of the citizens are, we trust, of the latter description. Complacency, therefore, rather than vengeance, should habitually influence the sentiments, and habitually mark the features of a judge.

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