Wayne County General Assembly of Private People

NISI PRIUS COURT Discussion

Subject: NISI PRIUS COURT

 

"George H. Cullins" wrote:

 

> Black's Law Dictionary defines Nisi Prius Courts as:

>

> "The nisi prius courts are such as are held for the trial of issues of fact

> before a jury and one presiding judge.  In America the phrase was formerly

> used to denote the forum (whatever may be its statutory name) in which the

> cause was tried to a jury, as distinguished from the appellate court."

>

> To me, that says the nisi prius court is a TRIAL COURT, which of course is

> where the FACTS of a case are discovered.

>

> Thornton says a nisi prius court is a "court of no record."  But a record

> is kept in a trial court

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Bill Thornton replies:

 

On the surface of it, your doubts are reasonable.  I'll do my best to explain nisi prius courts, courts of record, and courts of no record.

 

First, the mere keeping of a record does not qualify any court to be a court of record.  Black's Law Dictionary, Fifth Edition, contributes to

the confusion by listing only two of the four requirements for a court to qualify as a court of record.  If you want the full explanation, see

HERE.  In California, all courts are named as courts of record.  However, if in an individual case they are not operated as courts of record, then they

don't qualify as such.  It takes more than a name to make a court of record.  Even though a court may be keeping a record, it is a court of

no record if it does not conform to the remaining three requirements for a lawful court of record.

 

Black's Law Dictionary's omissions are subtle.  But if you look deep enough, you can recombine the information and get to the real meaning of

terms such as "nisi prius".

 

"Nisi prius" is a Latin term.  Individually, the words mean thus:

 

    "Prius" means "first."  For example, "Prius vitiis laboravimus, nunc legibus" means "We labored first with vices, now with laws."  Quoted

from Black's Law Dictionary, Fifth Edition.

 

    "Nisi" means "unless."  Quoting from B.L.D., 5th Ed.:  "The word is often affixed as a kind of elliptical expression, to the words 'rule,'

'order,' 'decree,' 'judgment,' or 'confirmation,' to indicate that the adjudication spoken of is one which is to stand as valid and operative

unless the party affected by it shall appear and show cause against it, or take some other appropriate step to avoid it or procure its

revocation."

 

A rule of procedure in courts is that if a party fails to object to something, then it means he agrees to it.  A nisi procedure is a

procedure to which a person has failed to object (show cause) and therefore, it follows that the person agrees to it.  Or, conforming to

the format in the preceding paragraph, a nisi procedure is a procedure to which a party agrees UNLESS he objects or shows cause.

 

A "nisi prius" procedure is a procedure to which a party FIRST agrees UNLESS he objects.

 

A "nisi prius court" is a court which will proceed unless a party objects.  The agreement to proceed is obtained from the parties first.

 

It is a matter of right that one may demand to be tried in a court of record.  By sheer definition, that means that the court must proceed

according to the common law (not the statutory law).  The only way that a court can suspend that right is by the prior agreement of the

parties.  For tactical reasons the state prefers to proceed according to statutory law rather than common law.  The only way it can do that is to

obtain the prior agreement from the parties.  That is the primary (but hidden) purpose of the arraignment procedure.  During arraignment the

court offers three choices for pleading (guilty, not guilty, nolo contendre).  But all three choices lead to the same jurisdiction, namely

a statutory jurisdiction, not a common law jurisdiction.  That is to say, the question to be decided is whether or not the statute was

violated, not whether the common law was violated.

 

The dictionary does not lie in its definition of a nisi prius court.  But it does omit some important information.  Namely, that it is a court

that has been set up by prior agreement assumed because when the three statutory options [guilty, not guilty, nolo contendre] were presented

to the defendant he chose one.  He thus failed to enforce his right to be prosecuted in a court of record.

 

Once the agreement (as evidenced in the arraignment proceeding) has been secured, the court proceeds under statutory authority.  Now the court

ceases to be a court of record and becomes a court of no record by prior lack of objection, i.e. by prior agreement implied by failure to object...

 

Naturally, after securing the agreement, a nisi prius court can move on to examine the facts with a judge and jury, etc. etc.

 

George H. Cullins wrote:

 

> Mr. Thornton says that the murderers have entered into a contract to go

> outside the rules of the "codes" even though they don't know it. Since a

> contract is an AGREEMENT between two or more people, how can a contract be

> made without the parties knowing about it.

 

Bill Thornton replies:

 

Yes.  If the party never objects, then he must have agreed.  Surely you have heard of appeals that were lost because objection was not timely

made.  The appellate court treats unopposed actions by the trial court as if those actions were agreed to by the party who untimely objected.

 

 

George H. Cullins wrote:

> He says the Penal Codes are not the "law."  My understanding is that the law

> is the statutes (codes) plus the law made by appellate judges every time they

> make a decision.  So, if the Penal Code is not the law, what is?

 

Bill Thornton replies:

 

When the word "law" is used without qualification, then it means common law.  An "attorney at law" means one who practices common law

(notwithstanding the fact that modern attorneys are not trained about the subject).  An "attorney in equity" is one who practices before an equity

court.  In the U.S. 99.99999% of all proceedings are in equity, which is why the judges may take liberties.

 

Statutes are expressions of will from the legislature.  To keep you confused, they append the word "law" to it.  Naturally, you are supposed

to then believe that statutory law is the same as and equal to common law (it isn't).  Codes are nothing more than a collection of statutes

and other rules arranged by subject instead of being arranged by date.  Law beats statutes; statutes beat codes.

 

A judge exercises his discretion.  Because he is authorized by the statutes to exercise his discretion, most appeals of judges' decisions

will fail.  The appellate courts generally will not second guess a trial court's use of discretion.

 

In a court of record, a judge has no discretion.  Discretion is reserved to the independent tribunal.