"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


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  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

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.