Talk:Court of record

Untitled

How do you call the place where the records are kept? "Record Office"? - Anon.

Generally, a court of record will have a court clerk who serves as the custodian of the court's records. The place where the records are kept is usually called the "clerk's office". Ellsworth 18:50, 3 September 2005 (UTC)

Please, no cranks

Someone (or more than one person) keeps adding nonsense to this page. Please stop. The objectionable material -- and the reasons it should not be added -- are as follows:

Below are counter arguments to some incorrect assumptions made by people continuously editing this article.

• The court must also have the power to fine or imprison for contempt -- this is not part of the definition, it is an occasional (and by no means universal or necessary) consequence of the definition. Many tribunals of record have no power to fine or imprison--for example, many of the specialized courts in New York and Pennsylvania are courts of record, but do not have the power to fine or imprison. The cases cited by the cranks only say that in order to fine or imprison, a court must be a court of record. That makes "court of record" part of the definition of courts that have power to fine or imprison, not that the power is part of the definition of court of record.

• The court must proceed according to the course of common law -- this is not true. Equity courts and civil law courts can be courts of record.

Your going off topic, we are clearly talking about common law court of record and not equity courts and civil law courts. Consider the article starts off as "In common law jurisdictions, a court of record"

• The court must have the magistrate independent of the tribunal -- what does this mean? It's gibberish. It's not even wrong.

A magistrate is a person with power as a public civilian officer(judge)

The tribunal is either the sovereign(people), or a fully empowered jury empowered jury (not paid by the government)

The essential aspect of this is that if the judge is the tribunal and imposes punishment, it is not a court of record 24.25.133.158

You've made two errors here. First, your definition of "tribunal" is incorrect. Black's Law Dictionary (7th Ed.) defines "tribunal" as "a court or other adjudicatory body."

A court is the person and suit(the paperwork) of the sovereign

A adjudication is "The giving or pronouncing a judgment in a cause; a judgment" [Bouvier's dictionary]

What is your definition of tribunal?

If you had paused one moment to think it through, you'd realize that your definition can't possibly be correct -- juries are paid! In my state, it's $40/day, but they're paid. If your definition of "tribunal" were correct, then then no jury trial could be a "court of record" -- and thus after rendering a verdict, the court would have no power to fine or imprison! Not a very rational, internally-consistent system, is it? Maybe your understanding is wrong from beginning to end?

I was trying to differentiate that the magistrate is paid by the government for his duties, juries may receive compensation but are not paid as government employees.

You second error is not reading carefully enough to understand the difference between necessary and sufficient conditions.

These two errors are reflected in your third bullet. Think about what judges do. Almost all criminal punishments in the U.S. are handed down by judges. For example, criminal sentences are almost always imposed by a judge--juries sometimes give advisory verdicts, but the judge issues the sentence, even when guilt or innocence was determined by the jury. When a defendant waives jury trial, a judge determines guilt or innocence, and sentences punishment. In all these cases, the judge and court that hands down the punishment is nonetheless a court of record. 73.38.59.62

People can waive their rights to a trial jury, and they can do that by contract. But it's a fraud, fiction, and a court not of record especially if the people don't realize the jurisdiction they bring themselves into willingly.

• Its acts and judicial proceedings are enrolled, or recorded, for a perpetual memory and testimony. -- this part is correct (well, except the "perpetual" part). This is the entire definition of "court of record," beginning, middle, end, full stop.

This is not the entire definition of a court of record as you say, you cannot simply erase a definition by including only parts of it. And the common law is based on judicial precedent so statues cannot simply wipe away common law. 24.25.133.158

I'm sorry, I don't understand. Your own cases, including Thomas Fletcher, and the Blackstone commentary, say that a court of record is a court that makes a record, with no further condition. I'm not erasing anything. The question we're discussing is why you're adding additional limitations.

This is part of a court of record. Not the whole of it.

Also, you cited the New York Consititution § 14 -- I quote it below. It provides that the NY legislature, by statute, can wipe away common law. Is there any respect in which your view is internally consistent? — Preceding unsigned comment added by 204.9.220.36 (talk) 22:29, 20 July 2015 (UTC)

I am no idea where you get the notation that the NY legislature can wipe away common law. They have to power to make alterations but what you are saying is that the NY state legislature could go to admiralty tomorrow? It is the law of the state and has not been repealed. Where has it been repealed?

The New York Consititution § 14 says the new York legislature can, and they have. For example, in the 1850s, the New York legislature abolished the common law of civil procedure, and replaced it with the Field Code. Then in the 1950s and 1960s, the New York legislature abolished the common law of contracts for sales of goods, negotiable instruments, letters of credit, and the like, and replaced them with the Uniform Commercial Code. They can abolish, and have. — Preceding unsigned comment added by 98.229.147.75 (talk) 03:18, 20 February 2016 (UTC)

• There is an optional fifth requirement which is that the court has a seal. -- irrelevant. If it's "optional," it has no relevance to a definition, true?

It generally has a seal, but does not need to, so I yield this point to you. 24.25.133.158

Thank you for conceding the point entirely. Most courts of record "generally" have a seal, but the seal is the consequence of being "of record," not a necessary condition. Thank you for providing a perfect illustration to show your lack of understanding of the difference between necessary and sufficient conditions, and your inability to identify cause-and-effect relationships. I trust this illustrates the issue so that even you see it clearly. But it's troubling that it took this much to show you the logical fallacies in your conception. Now that you see the error in your thinking, I hope you will go in peace, and sin no more. 73.38.59.62 (talk) 01:18, 14 November 2015 (UTC)

The cites given are either archaic or wrong:

Jones v. Jones, 188 Mo.App. 220, 175 S.W. 227, 229; Ex parte Gladhill, 8 Metc., Mass., 171, per Shaw, C. J. See,also, Ledwith v. Rosalsky, 244 N.Y. 406, 155 N.E. 688, 689; 3 Bl. Comm. 24; 3 Steph. Comm. 383; The Thomas Fletcher, C.C.Ga., 24 F. 481; Ex parte Thistleton, 52 Cal 225; Erwin v. U.S., D.C.Ga., 37 F. 488, 2 L.R.A. 229; Heininger v. Davis, 96 Ohio St. 205, 117 N.E. 229, 231.

The cites that I can locate prove the error in the cranked-up definition. To take one example, Gladhill, the question decided in that case was whether a police court in the city of Lowell had jurisdiction to hear an naturalization case--that is, whether a state court had jurisdiction to hear a question arising under federal law. The sentence from Gladhill that seems to be of interest to the cranks is:

The statute of the United States, passed April 14th 1802, 2 U. S. Laws, (Story's ed.) 850, after having conferred the power to receive declarations of aliens, and, on application, to admit them to become citizens, upon various courts of the United States, and of the several States and territories, including district courts, and after reciting doubts whether certain courts of record in some of the States are included within the description, enacts, § 3, that “every court of record, in any individual State, having common law jurisdiction, and a seal, and clerk or prothonotary, shall be considered as a district court, within the meaning of this act.”

That is, this sentence says that congress had extended jurisdiction over this issue to any court of record (federal or state) with the additional properties of "common law jurisdiction," "seal," and "clerk." Congress apparently felt that any court that had these formalities in place could serve as an immigration naturalization court (remember that in 1802, federal courts were few and far between, while every city of any size had a state court). These are not properties that define a court of record, they are properties that must exist in addition to being a court of record, in order for the court (federal or state) to entertain federal questions of naturalization. Because they are additional requirements, they cannot be part of the definition.

You are mixing statutory law with common law. They are clearly different. In the State of New York it clearly states in Article 1, Section 14 that the common law is in full effect and the right to common law is protected under the United States Constitution.

So statutes added a formal definition of a court of record. This does not change the definition from up above. 24.25.133.158

You are misreading the quote from your own Gladhill source. The statute says that courts that are (a) of record, (b) common law, (c) seal, and (d) with a clerk, may perform the naturalization function of a district court. The statute does not change the common law definition of "court of record." The statute, the Gladhill case, and I, are all keeping the two quite separate. In what sense do you think I'm "mixing" them? It certainly appears that you're making an error of logical inference, confusing a definition with a consequence, which leads you to mix up distinct things.

You've also rather remarkably misrepresented the New York Constitution. The NY Const. provides that common law can be overridden by statute, and some parts are "abrogated." I don't understand your statement that the common law is in "full effect." Here's the text of section 14, with the relevant parts highlighted:

§14. Such parts of the common law ... as together did form the law of the said colony, on the nineteenth day of April, one thousand seven hundred seventy-five, ... which have not since expired, or been repealed or altered; ... shall be and continue the law of this state, subject to such alterations as the legislature shall make concerning the same. But all such parts of the common law ... or parts thereof, as are repugnant to this constitution, are hereby abrogated. 73.38.59.62

No, common law cannot be overwritten by statutes. To alter does not mean to abolish.

The "power to fine or imprison" is not part of the definition; it is a consequence of keeping a record. Simple justice requires that a judge can't impose a criminal penalty on a person with no appellate review. Appellate review requires a record. Thus, if a court does not keep a record, the court cannot have the power to fine or imprison. But like any other proposition, the converse is not necessarily true. This part of the cranks' definition confuses necessary conditions with sufficient conditions -- something most of us were taught to avoid in middle school.

This is just wrong. I think you are confusing minutes as part of the record, which is not true. 1 Ohio R. 268. See 23 Pick. R. 184. 24.25.133.158

"Minutes," in the sense of a transcript of the proceedings, is the touchstone for modern "of record" hearing ("of record" requires other things as well, but if there is a transcript of the proceedings, then all those others tend to be satisfied as a matter of practical reality).

Where does this definition come from?

There is no "Ohio R." reporter listed in the Ohio section of the Blue Book. Likewise, what is "Pick. R.?" Does it exist? Do you look up anything you "cite" to verify that your understanding is accurate? For about half the sources you "cite," I can't find the text. This leads me to suspect that some of your "cites" are just plain made up. Diligent double checking is one of the most important disciplines of anyone that purports to have competence in the law.

This is from Bouvier's dictionary

Without an accurate cite, I can't diagnose how you reached your erroneous notion. 73.38.59.62

In addition, the Gladhill case is from 1844, and thus all but irrelevant after the great changes in American courts from the 1930s to 1940s. The Jones case is unlocatable, but the cite suggests it's from 1915 or so, and likewise too old to be relevant. The Thomas Fletcher case is miscited, but I found it anyway--it's from 1884 (thus nearly irrelevant), and states the definition from the main article and the one correct bullet above--"Blackstone says that a court of record is ‘a court where the acts and proceedings are enrolled in parchment for a perpetual memorial and testimony.‘" Well, parchment has gone away, but the essence is that a court of record is one that makes a record. Neither the Jones nor the Ledwith case is readily available in any of the standard free databases, and neither has been cited for decades, so the cites to them are unverifiable. And so forth. The omission of the date from the cites suggests that whoever added this portion of the article knew that the information was archaic or unreliable, but did not want to disclose either the adverse fact or the fact that the author knew of the error.

I was clearly citing from Black's Law Dictionary Edition 4, so your assumptions are based on a false premise. 24.25.133.158

Your original text cited the cases, not Black's. The cases are the common law, that is, the source that has legal effect. Black's is just collected thoughts of editors, with no precedential value at all. For someone that purports to be such a fan of common law, it's striking that you would rely on a non-authoritative dictionary, and choose to walk away from the common law itself! Is this as irrational as it appears at first glance? 73.38.59.62

Please, this stuff is nonsense. Whoever is adding it is a misinformed crank, and neglects the rules of logical inference. Just stop. — Preceding unsigned comment added by 73.38.59.62 (talk) 21:39, 16 March 2015 (UTC)

I do not understand how citing definitions and precedents are neglecting the rules of logical inference. I am open to continued discussion 24.25.133.158

No one has ever identified "citing definitions and precedents" as your problem. Your problem is misreading what you cite, particularly your frequent confusion of necessary vs. sufficient conditions. 73.38.59.62

I fully concur with your observations. Good catch. Any available admin, please track down whomever is adding that garbage and suspend or ban them as appropriate. --Coolcaesar (talk) 14:26, 19 March 2015 (UTC)

Please explain the error in my logic within the context of common law. You have failed to do so with common law and have tried to use statutes to do so. 24.25.133.158

Jones v. Jones, 175 S.W. 227, 188 Mo. App. 220 (Mo. App., 1915) considered whether or not an attorney properly notified a trial court of a scheduling conflict under a rule that raised a question about whether or not a hearing before a referee constituted an appearance in a court of record (it didn't). In defining "court of record," the Kansas City Court of Appeals said, "A court of record is a judicial tribunal having attributes and exercising functions independently of the person of t[h]e magistrate designated generally to hold it and proceeding according to the course of the common law. Ex parte Thistleton, 52 Cal. 220[.]" That would appear to be the source of the gibberish you mentioned (my best guess as to its meaning is that the court conducts proceedings, issues orders, and so on, regardless of who the presiding judge is at any given time). I agree that all of that is misleading at best, wrong at worst, and that this isn't a complicated question: a court of record makes a transcript of the oral proceedings; courts that don't make them aren't courts of record. --Stevensrmiller (talk) 16:46, 11 April 2015 (UTC)

I greatly appreciate your research in an attempt to counter the claims that I laid. You definitely did a lot of research. I suggest you take a look here for some good information here for a better explanation of what I am trying to say. Look forward to your response. 24.25.133.158

Your gibberish demonstrates absence of ability to read carefully, far above my poor power to add or detract. I will let your comments be the perpetual memory and testimony to your competence. You're a misinformed crank. 73.38.59.62 (talk) 03:58, 17 July 2015 (UTC)

Your comments will also be in perpetual memory as well. I hope common people will look into what I have to say and make their own judgement.

Concur again with 73.38.59.62. Whomever is posting that gibberish has no idea what is a court of record. --Coolcaesar (talk) 04:40, 19 July 2015 (UTC)

I cited Black's Law Dictionary Edition 4 pg.425-426. There are citations and I have copied from them. So is Black's Law Dictionary gibberish?

Again, I appreciate the research you have done, I have learned quite a lot from you that would have taken me many hours. Many thanks!

I will be back with more comments and research in the near future.

The amount of craziness I'm seeing above is just amazing and borders on trolling. It's clear that that person is not interested in having a serious intellectual discussion. An editor acting in good faith would have already gone to a law library and read some basic textbooks on the structure of American law. For example, every state with a reception statute has held that the legislature has the power to abrogate the common law. Go read up on how reception statutes work. --Coolcaesar (talk) 15:49, 21 July 2015 (UTC)

24.25.133.158 --

There are so many problems with your view, your analysis, and your conclusion, that I barely know where to begin. But here are a few of them.

1. Black's Dictionary is not authority. Statutes are authority, cases are authority (especially if we're working on a common law topic!). The editors of a dictionary simply aren't. Your attempt at justification, "I cited Black's Law Dictionary" is only a concession that you screwed up.

2. Dictionary editors make mistakes too. Black's FOURTH edition is fifty years old. The editors recognized the mistake, and in subsequent editions, corrected the mistake. If you were in court and relied on a source that was fifty years old and the same source had since retracted, you'd be sanctioned. Your attempt at justification, "I cited Black's Law Dictionary 4th Edition" is another concession that you screwed up.

3. Your definition (at least as it was edited into the main article some months ago) misquotes Black's. Even though all you did was change a little punctuation, those punctuation changes change the meaning.

4. Black's 4th is not written carefully -- it doesn't accurately track the sources it purports to rely on. Black's wording is ambiguous because it does not distinguish between necessary conditions (aspects that belong in the definition), and commentary on courts that meet the definition (but that are not part of the definition itself). I can see how a non-expert could get suckered by the uncareful writing in Black's. That much is honest error.

It's time to recognize that between Black's carelessness in the early 1960s and your carelessness in reading and paraphrasing, you've been led astray.

The difference between someone who's made an honest mistake and a total fool is that one who makes an honest mistake acknowledges it, and moves on.

I hope you will ask the original author of this gibberish to correct it at the web sites that started this silliness.

204.9.220.36 (talk) 21:08, 22 July 2015 (UTC)

References

Citation Sources

The citation sources listed are from Black's Law Dictionary, Edition 4, pg 426. — Preceding unsigned comment added by 24.25.133.158 (talk) 03:00, 20 June 2015 (UTC)

Court of Record Definition

"Courts may be classified and divided according to several methods, the following being the more usual:

COURTS OF RECORD and COURTS NOT OF RECORD. The former being those whose acts and judicial proceedings are enrolled, or recorded, for a perpetual memory and testimony, and which have power to fine or imprison for contempt. Error lies to their judgments, and they generally possess a seal. Courts not of record are those of inferior dignity, which have no power to fine or imprison, and in which the proceedings are not enrolled or recorded. 3 Bl. Comm. 24; 3 Steph. Comm. 383; The Thomas Fletcher, C.C.Ga., 24 F. 481; Ex parte Thistleton, 52 Cal 225; Erwin v. U.S., D.C.Ga., 37 F. 488, 2 L.R.A. 229; Heininger v. Davis, 96 Ohio St. 205, 117 N.E. 229, 231."

"A "court of record" is a judicial tribunal having attributes and exercising functions independently of the person of the magistrate designated generally to hold it, and proceeding according to the course of common law, its acts and proceedings being enrolled for a perpetual memorial. Jones v. Jones, 188 Mo.App. 220, 175 S.W. 227, 229; Ex parte Gladhill, 8 Metc. Mass., 171, per Shaw, C.J. See, also, Ledwith v. Rosalsky, 244 N.Y. 406, 155 N.E. 688, 689." — Preceding unsigned comment added by 24.25.133.158 (talk) 15:13, 20 June 2015 (UTC)

This is the gibberish definition that is to be excluded. Thanks for "making a record" of precisely the point that's at issue so we all know what we're talking about. But each part of this "definition" -- where it's correct and useful, and where it isn't -- is discussed immediately above. Is there any reaction? Any basis to disagree with the showings of which parts are correct and which aren't? Are you trying to move the ball forward? 204.9.220.36 (talk) 17:02, 22 June 2015 (UTC)

Additional Evidence

See 7 Cal Jur 571 for more info about courts of record

7 California Jurisprudence, Bancroft Whitney (1922), Page 580-581 Courts of Record.--Courts are divided generally into courts of record and those that are not of record. A court of record is a judidical tribunal having attributes and exercising functions independently of the person designated generally to hold it, and proceeding according to the course of the common law.4 In a court of record the acts and judicial proceedings are enrolled, whereas, in courts not of record, the proceedings are not enrolled. The privilege of having these enrolled memorials constitutes the great leading distinction between courts of record and courts not of record.5

4. Ex parte Thistleton, 52 Cal. 220. As to what are "courts of common-law jurisdiction" within the meaning of the federal naturalization act, see Alienage and Citizenship, Vol. 1, p. 911.

5. Hahn v. Kelly, 34 Cal. 391, 94 Am. Dec. 742, per Sawyer, J., concurring. See infra, §§ 26-28, as to records.

Under the constitutional revision of 1863, the district, county and probate courts were also courts of record. Caulfield v. stevens, 28 Cal. 118. — Preceding unsigned comment added by 24.25.133.158 (talk) 15:17, 20 June 2015 (UTC)

Thanks for your help -- thus proving the point. To the degree the cited sources exist, they are archaic and no longer meaningful, and even most of the archaic sources state the definition set forth in the main article and are being misquoted by the cranks (usually by rephrasing necessary conditions as sufficient conditions, or vice versa). The definition of "Court of record" means "record" -- beginning, middle, end, full stop. 204.9.220.36 (talk) 16:27, 22 June 2015 (UTC)

Again, your misunderstanding of common law proves the point that you do not know the difference between common law and statutory law, which you assume are the same. Precedents such as these are meaningful in common law, and their has been no evidence presented by you that I had misquoted the definition in Black's Law Dictionary, Edition 4.

@24.25.133.158: :

I see the problem. You're relying on Black's Dictionary 4th Edition. Today we're at the Tenth. Black's was rewritten in the late 1990s, with much more precise definitions. The older Black's dictionaries are not given much credence today. One explanation for the obsolescence of older Black's dictionaries is at the section of "common law" discussing how terms have changed over the decades, because of imprecision in earlier thought modes. The definition pointed out to you is nearly word-for-word the same as the definition of the modern Black's. I added a footnote to explain the contrast between your century-out-of-date view and the more precise, more correct, modern view.

Even your own sources prove you are wrong. For example, Hahn v. Kelly, 34 Cal. 39 (Cal. 1868) says it plainly (citations and quotations omitted):

"A Court of record is that where the acts and judicial proceedings are enrolled in parchment for a perpetual memorial and testimony, which rolls are called the records of the Court, and are of such high and supereminent authority that their truth is not to be called in question. In Courts not of record the proceedings are not enrolled. The privilege of having these enrolled memorials constitutes the great leading distinction in English and American law between Courts of record, and Courts not of record, or, as they are frequently designated, superior and inferior Courts."

You're fond of citing sources--do you read them?

I am puzzled at your comment, "you do not know the difference between common law and statutory law, which you assume are the same." I don't see any point at thsoe writing to you assert they are "the same." The differences between, and compatibility between, and interactions among common law and statutory law is explained in the article on "common law"]. The explanation given to you above accords with that understanding.

I am also puzzled at your statement, "no evidence presented by you that I had misquoted the definition in Black's Law Dictionary, Edition 4." That's not correct. I see that the accuracy of your quotation of punctuation is challenged, and that your misquotation of punctuation changes the meaning. I'm puzzled that you'd try to divert attention to an issue that isn't in dispute. I'll take your word for it, that Black's is your underlying source.

More importantly, the discussion above challenges the accuracy, truthfulness, and modern currency of Black's 4th edition. Several points of the discussion above point out that Black's 4th edition misquoted the sources it purports to rely on. More importantly, Black's from the late 19th century and early 20th was not accurate or precise (see "common law"). You yourself conceded that Black's is in error on the issue of a "seal" -- why would the rest of Black's dictionary be above the same kind of error?

They also pointed out that Black's is just a dictionary, it has no force of law, and that it's completely amateurish to rely on a secondary source when that secondary source conflicts with primary sources.

I trust this resolves your concern. BostonBowTie (talk) 11:55, 21 May 2019 (UTC)

References

Court of record

Court of record 2405:205:C962:3E9E:38A8:B21D:867:1042 (talk) 09:31, 8 February 2022 (UTC)

Definition of a Court of Record

“A court of record proceeds with common law without the use of statutes" Corpus 6 Juris vol 15 pg 720 – 721 section 5 (1918); Corpus Juris Secundum 25 section 344 (1941); Black's Law Dictionary, 4th Ed. p 426;

The State of Florida Statute § 2.01 (2021) "Common law and certain statutes declared in force.—The common and statute laws of England which are of a general and not a local nature, with the exception hereinafter mentioned, down to the 4th day of July, 1776, are declared to be of force in this state; provided, the said statutes and common law be not inconsistent with the Constitution and laws of the United States and the acts of the Legislature of this state.”;

Giles Jacob A New Law Dictionary. [London]: Printed by E. and R. Nutt, and R. Gosling, 1729 MDCCXXIX page 140-143, reads “A Court of Record is that Court which hath power to hold Plea, according to the Course of Common Law”; 108.70.111.139 (talk) 22:37, 26 January 2023 (UTC)

Legal studies

What is legal studies? 103.14.88.155 (talk) 06:19, 23 February 2024 (UTC)

Legal studies is generally a subject involving the study of law and jurisprudence. I'm not sure where this is in the article? 12xii (talk) 10:55, 23 February 2024 (UTC)