Other Modern Developments

In France, the development of the judicial system after the breakup of the Carolingian Empire was similar to that in England: Both involved the vesting of central legal authority in the Crown after a protracted struggle with feudal manorial courts. The essential features of the judicial system now in effect in France were established after the French Revolution of 1789 by the Code Napoléon. This system includes lower courts of wide jurisdiction, intermediate courts of appeal, a court to resolve jurisdictional conflicts among courts, and a supreme appellate tribunal called the Court of Cassation. Many European and Latin American judicial systems are modeled on that of France.

In the Islamic world, the Qur'an (Koran) is the source of law; justice traditionally has been dispensed by specially trained priests in conjuction with the king, or sultan. In the 20th century, this system still prevails in such Islamic countries as Yemen and Saudi Arabia. In Turkey, however, executive, legislative, and judicial functions have been separated, and a judicial system similar to those of Western countries has evolved.

In other Middle Eastern and Asian countries that have attained independence since World War II, notably Sri Lanka, India, and Israel, the courts also operate similarly to those of the West, that is, as relatively independent institutions within a parliamentary framework.

In Communist countries, the judicial system was usually patterned after that of the USSR, which included a hierarchy of courts culminating in a supreme court. In the former Yugoslavia, however, all judges, even those of the highest tribunals, were elected, not appointed.

LATER DEVELOPMENTS IN THE BRITISH SYSTEM

Administrative and structural changes in important but secondary features, such as those wrought by the Judicature Act of 1873, have been made. This act, which went into effect in 1875, preserved the role of the House of Lords as the chief appellate tribunal of England and Wales and consolidated all the superior civil courts into a Supreme Court of Judicature with two principal branches: the Court of Appeal, the highest appellate court below the House of Lords, and the High Court of Justice. The latter tribunal comprises three divisions: Chancery Division; King's, or Queen's, Bench Division; and Probate, Divorce and Admiralty Division. Enactment of the Criminal Appeal Act of 1907 established the Court of Criminal Appeal as the highest appellate tribunal after the House of Lords in criminal cases. Besides the superior courts, the judicial system of England and Wales includes many lower courts organized into circuits. The highest civil court of Scotland is the Court of Session, and the highest criminal court is the High Court of Justiciary. Appeals may be taken from these courts to the House of Lords.

Western European Tribunals

Medieval courts were an outgrowth of the tribal courts of the Germanic peoples, among whom the highest judicial authority was that of the popular assemblies that met regularly throughout the year. The tribal judges supervised the proceedings and executed the judgments rendered by the assemblies. During the development of the Germanic tribal organization into territorial states, the primitive tribal courts underwent a corresponding evolution, increasing in number and becoming differentiated. Among the new features of this Teutonic system were a royal court, presided over by the king and modeled on the Roman system of courts; special lower courts under the control of royal officials who were called Grafen, which handled minor matters; and, later, a corps of permanent lay judges, with power to render judgments.

In the 8th century, when the Germanic territorial states were part of the realm of Charlemagne, the Teutonic judicial system experienced a further significant development: the practice, initiated by Charlemagne, of dispatching royal commissioners to examine the functioning of local courts and, when necessary, to supplement the justice they dispensed. In this innovation were the seeds of three later important legal developments: assize courts, circuit courts, and a central legal authority. This innovation was adopted by other feudal monarchs in their struggles with the landed nobility, who controlled the manorial, or seignorial, courts.

When the Normans conquered England in 1066, they imposed the Carolingian judicial system on the Anglo-Saxons. In the long struggle between king and landed nobility that ensued, one of the principal weapons of the Crown was the Curia Regis (king's court), which was held wherever the royal household was situated. The principal judicial strongholds of the nobility were the manorial courts, chiefly the courts baron and courts leet. Judicial supremacy eventually was won by the Crown, and, since the reign of King Edward I, in the 13th century, English courts have been organized on a centralized basis.

Before this victory of the Crown, however, King John had been compelled in 1215 to sign the Magna Carta, which initiated the gradual separation of judicial from executive and legislative governmental powers. The terms of this charter of liberty established the Court of Common Pleas as a court of a fixed location to try cases initiated by commoners against other commoners. The process of separation continued during the reign of Edward I with the establishment of the Court of Exchequer as a tribunal having exclusive jurisdiction over revenue cases arising out of unpaid debts to the Crown and the establishment of the Court of King's Bench, or the Court of Queen's Bench, as the supreme appellate tribunal of the realm, presided over by the monarch. The Court of King's, or Queen's, Bench also was invested with original jurisdiction over both civil and criminal cases and thus encroached on the jurisdiction of the Court of Common Pleas. In fact, the jurisdictions of all three courts overlapped and were not entirely differentiiated until much later. These courts later became bulwarks in the defense of civil and political liberties against the Crown.

Another momentous innovation during the reign of Edward I was provision for doing justice in situations in which the common law failed to afford a remedy to aggrieved litigants. This supplemental system of justice was administered by the Crown through the lord chancellor and was called chancery, or equity, jurisprudence.

In the centuries after the signing of the Magna Carta, Parliament acquired appellate jurisdiction over both civil and criminal cases. This function was subsequently confined to the House of Lords and has survived to the present day. In 1701, Parliament enacted legislation establishing tenure of office for judges and made their removal from office conditional on the assent of Parliament, thus completing the separation of judicial from executive and legislative governmental powers. Like many other features of the English judicial system, this separation of powers was incorporated into the courts of the New World.

Early Courts

The recognized existence of even primitive courts implies a relatively high degree of social organization and the need for systematic adjudication of disputes on the basis of established customs and consciously formulated rules of social conduct. Archaeologists and anthropologists have established the existence of courts in simple societies over wide areas of Asia, Africa, and Europe; courts were not as widespread among the Native Americans of North and South America. Primitive courts formed part of a complex social structure in which administrative, judicial, and religious functions were intermingled. These courts were held in the open or in religious temples. More often than not, the judges were priests. Those who attended were considered part of the court, whether or not they had an immediate interest in the proceedings or in the judgments rendered. The proceedings consisted in large part of rituals designed to secure the redress of grievances presented by individuals against other individuals.

In the highly developed civilizations of antiquity, notably those of Assyria and Egypt, judicial and executive functions were undifferentiated and were centralized in the monarch as head of state. Insight into the structure and functions of Babylonian courts of the 18th century bc was obtained when the ancient legal document known as the Code of Hammurabi was discovered early in the 20th century. A highly developed judicial system existed also among the ancient Hebrews.

In the judicial system of ancient Athens, a unique feature, introduced by the lawgiver Solon in the 6th century bc, was the right of aggrieved litigants to appeal the decisions of magistrates to the people of Athens, assembled as a hēliaia (“public assembly”). In later years, these assemblies, referred to as heliastic courts, became courts of first resort presided over by magistrates who prepared cases for trial. The heliastic courts subsequently became unwieldy, and they were divided into sections called dicasteries.

The evolution of courts in ancient Rome was marked by the development of a complex structure in which criminal, civil, and other jurisdictions were differentiated and were exercised by separate courts and officials. Violations of criminal law were prosecuted by the state; higher and lower courts were organized; the right of appeal was juridically guaranteed; and a corps of professional jurists was established for the first time in the history of Mediterranean civilization. After Christianity became the state religion of Rome, the ecclesiastical courts, previously established by Christians who had refused to have recourse to pagan courts, became a part of the Roman legal system. As the Roman Empire disintegrated, the ecclesiastical courts survived and assumed jurisdiction over secular affairs.

Introduction of Courts

Courts, branch of government established to administer the civil and criminal law. The term court is also applied to the international tribunals intended to provide for the resolution at law of controversies among governments, namely, the Permanent Court of International Justice, established by the League of Nations after World War I, and by the International Court of Justice, established by the United Nations after World War II.

Courts are classified in many ways. Among the more usual general classifications are courts of record and courts not of record; courts of superior jurisdiction and courts of inferior jurisdiction; trial courts and appellate courts; and civil courts and criminal courts. In courts of record the proceedings are recorded completely; no detailed record is made of the proceedings in courts not of record. Police and magistrate's courts in the United States are, in nearly all cases, courts not of record. Courts of superior jurisdiction, often called higher courts or appellate courts, are generally those to which appeals are made from decisions of courts of inferior jurisdiction, referred to as lower courts or trial courts. Civil and criminal courts deal with cases arising from infractions of the civil law and the criminal law, respectively. The judicial organs of military establishments are called military courts. Courts with special, limited jurisdictions are known by the names of those jurisdictions. For example, probate or surrogate's courts are tribunals dealing with the probate of wills and the disposition of estates; military courts have jurisdiction over infractions by military personnel; and admiralty courts have jurisdiction over cases arising from maritime contracts and from violations of maritime law.

Other courts are designated by the territorial limits of their jurisdictions. Included in this classification are the territorial and state courts of the United States and the county courts of the U.S. and the United Kingdom. Municipal courts generally are criminal courts; however, a number have restricted civil jurisdiction.

Advocate

Advocate, in a general sense, one who pleads for another in a court of law or other tribunal. In the United Kingdom, professional advocates are called barristers and are permitted to plead or argue cases before the High Court of Justice; a barrister is distinguished from a solicitor, who may conduct litigation only in inferior courts. The avocat and avoué in France are analogous to the barrister and solicitor in England. In the United States, most former British colonies, and some parts of Europe, the two branches of the legal profession are not separate .

In a narrower sense, the term advocate was formerly used in Britain to denote a member of the College of Advocates at Doctors' Commons (abolished in 1857). These advocates had the exclusive right to plead in the ecclesiastical and admiralty courts and took precedence over all ordinary barristers. In the U.S. Army, the judge advocate general is chief adviser to the army authorities in the administration of military law.

Attorney

Attorney, in law, any person authorized by another to represent him or her. An agent who has been granted express authority to bind his or her principal is called an attorney in fact. Such authority is usually granted by a written instrument called a power of attorney. The powers conferred may be general, as when one gives another a mandate to manage all one's affairs during an absence, or special, as when the authority extends only to a particular business, or is otherwise limited or qualified. The term attorney at law is used in the United States to denote a legal adviser or representative in all manner of business. In Britain, upon the fusion of law and equity by the Judicature Act of 1873, the two classes of attorney and barrister were united under the name of solicitor in the High Court of Justice.

An attorney at law is an officer of the court, and as such is required, in the U.S., to take a binding oath of office to observe the U.S. Constitution and the constitution of the state of residence. Each state regulates by law the training and qualifications of attorneys. Usually a preliminary examination in general scholarship is required, followed by study at a school of law and sometimes by a clerkship or apprenticeship, varying from one to two years, in the office of a practicing attorney. Finally, an applicant must pass an examination in law before being admitted to the bar.

The duties of an attorney are to act with diligence and fidelity to one's client and to show average prudence, knowledge, and skill in professional dealings. In order to settle an action, the attorney requires, as a rule, the special authority of the client. No attorney can be compelled to reveal confidential information related by a client.