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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.

t

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 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

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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

W

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. 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.

X

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, * 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 con

v Wood. Ins. 464.

w 1. Reev. 68.

x Sulliv. 271.

firm, 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.

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CHAPTER V.

OF THE CONSTITUENT PARTS OF COURTS.

OF THE JUDGES.

I NOW

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.

OVID.

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