In the American colonies, and for many years in the States which succeeded them, these distinctions of procedure were generally observed.[Footnote: In Pennsylvania the courts largely disregarded them and asserted that equity was a part of its common law. See Myers v. South Bethlehem, 149 Pennsylvania State Reports, 85, 24 Atlantic Reporter, 280.] In some there were, in some there still are, separate courts of equity held by a Chancellor, aided, if necessary, by Vice-Chancellors. In others two dockets or lists of cases were (and in a number of them still are) kept in the same court, and the same judge disposed of those on one docket as a court of equity and of those on the other as a court of law.
Such a system is intrinsically absurd. It has been maintained by whatever States yet tolerate it for two reasons: because the lawyers and the community are used to it, and because it furnishes a convenient test of any claim of right to a jury trial. All our State Constitutions have some provision for maintaining such rights, but they do not define the cases in which the right exists. That is left to the courts, and their rule is that it cannot be claimed in cases that call for equitable as distinguished from legal relief.
In most of our States and Territories legal and equitable causes of action or defenses may now be joined, and legal and equitable relief given in one suit. This reform in procedure was largely due to the labors of David Dudley Field, and became general throughout the country during the last half of the nineteenth century. The result has been that separate courts of equity are now to be found only in a few States.
Congress has made use of the State courts in certain cases as part of the machinery of the federal government. While by the Constitution "the judicial power of the United States" can only be vested in the courts of the United States, the phrase as thus used refers only to the power of judging causes in courts of record. State courts and magistrates can therefore be given jurisdiction by Congress over any acts in aid of the functions of the United States, the supervision of which may be regarded as ministerial, or as incidental to judicial power rather than a part of it. They have received it in this way with respect to such matters as seizure of deserters from a merchantman, the arrest and commitment or bail of offenders against the criminal laws of the United States, the taking of affidavits and depositions for use in proceedings before federal authorities, and the naturalization of aliens.[Footnote: Robertson v. Baldwin, 165 U. S. Reports, 275.]
State courts also have jurisdiction over any civil action to enforce a right given by the laws of the United States, unless Congress has otherwise provided. They constitute together with the federal courts one general judicial system for the whole country.[Footnote: Cluflin v. Houseman, 93 U. S. Reports, 130, 137; Calvin v. Huntley, 178 Mass. Reports, 29; 59 Northeastern Reporter, 435.]
Almost all American courts are known as "courts of record." A court of record, in modern parlance, is one which tries causes between parties and is required to keep a full official and permanent record of its disposition of them. For this purpose most courts are furnished with a recording officer, called the clerk. His record is the only evidence of their judgments and cannot be contradicted or impeached in any collateral proceeding. If there is any error in it, it can only be shown on a direct proceeding brought to correct it.
Justices of the peace, when authorized to try causes, act only in small matters and in a summary way. In most States they are not, when exercising this function, deemed to constitute a court of record. Nor is any court, even though furnished with a clerk, if its proceedings are not recorded in full, but simply made the subject of brief notes or minutes,[Footnote: Hutkoff v. Demorest, 104 N. Y. Reports, 655; 10 Northeastern Reporter, 535.] unless there is a statute or local practice giving such notes or minutes the effect of a record.
A court of record has inherent power to preserve order in proceedings before it[Footnote: See Chap. XX.] and, unless other provision be made by law, to appoint a crier or other officer to attend upon its sessions. By statute it is commonly made the duty of the sheriff of the county to attend all courts of record, either personally or by deputy. He also executes such processes as under the practice of the court may be directed to him. Witnesses and jurors are thus summoned by him to appear before the court; arrests and attachments of property are made; and executions are levied to enforce final judgments.
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