Nisi Prius Courts
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.