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In every court there must be at least three constituted parts. The 14 Plaintiff, who complains of an injury done; the Defendant, who is called upon to make satisfaction for the injury; and the judicial power which is to examine into the fact, determine the law arising upon it, to ascertain whether any injury has been done, and by its officers to apply the remedy. In the higher courts the usual assistants are attorneys, and advocates, or counsel.
An attorney at law, is one who is put in the place, stead, or turn of another, to manage his matters of law for him. Formerly every suitor was obliged to appear in person, to prosecute or defend his own cause ; which is still the law in criminal cases. An idiot cannot appear by his attorney, because he has not discretion to enable him to appoint a suitable person in his stead. He must therefore appear in person, and the judge is bound to take care of his interest; and admit the best plea in his behalf that any one in court can suggest. No one can practise as an attorney in any court, but in that of which he is sworn an attorney; and as he enjoys many privileges in that court, so he is also peculiarly subject to the censure and animadversion of its judges. To enable an attorney to practise in the court of chancery, it is necessary that he be admitted a solicitor therein. And none can act as attorneys at the quarter sessions, but such as have been regularly admitted into some superior court of record: and attorneys are subjected to various other regulations, by different statutes So early as the reign of Henry IV. (4. c. 18.) it was enacted, that all attorneys should be examined by the judges, and none be admitted but such as were virtuous, learned, and sworn to do their duty.
Advocates, or, as they are commonly called, counsel, are of two degrees, barristers and sergeants. The former are admitted, after a considerable period of study and standing, in the inns of court; and are in all the old law books styled apprentices, being looked upon merely as learners, and not qualified to execute the full office of an advocate till they were of sixteen years' standing; at which time they may be called to the honourable state and degree of sergeants. Sergeants at law are bound by a solemn oath to do their duty to their clients with fidelity and discretion.
His majesty's two principal counsel, are the attorney-general and solicitor-general, who may be either barristers or sergeants. The king's counsel cannot be employed in any cause against the crown, without special license; hence they cannot publicly plead in court for a prisoner, or a defendant in a criminal prosecution, without license, but which is never refused. In obtaining it, however, an expense of nine pounds is incurred.
A custom has of late years prevailed, of granting letters patent of precedence to such barristers as the crown thinks proper to honour with that mark of distinction; whereby they are entitled to such rank and pre-audience as are assigned in their respective patents: sometimes next after the
king's attorney-general, but usually next after his majesty's counsel then being. These (as well as the queen's attorney and solicitor-general) rank promiscuously with the king's counsel, and together with them sit within the bar of the respective courts: but receive no salaries and are not sworn; and therefore are at liberty to be retained in causes against the crown. All other sergeants and barristers indiscriminately (except in the court of common pleas, when only sergeants are admitted) may take upon them the protection and defence of any suitors, whether plaintiff or defendant; who are therefore called their clients, like the dependants before the ancient Roman orators. These indeed practised gratis for honour merely, or at most for the sake of gaining influence and so likewise it is established with us, that a counsel can maintain no action for his fees which are given as a mere gratuity and not as a salary or hire, and which a counsellor cannot demand without injuring his reputation; the same is also laid down with regard to the advocates in the civil law, whose honorarium or gratuity was directed by a decree of the Senate not to exceed in any case ten thousand sesterces, or about eighty pounds of English money. And in order to encourage due freedom of speech in the lawful defence of their clients, and at the same time to give a check to the unseemly licentiousness of venal and illiberal men, (some of whom, who would prostitute their talents and acquirements to any cause, will insinuate themselves into the most honourable professions,) counsel are indulged with liberty of speech in defence of their clients, and are not answerable for any matter spoken by them relative to the cause in hand, and suggested in their client's instructions, although it should prove altogether a groundless reflection on another's reputation. But if they should mention an untruth of their own invention, the injured party may bring his action. By the statute of 3 Edward I., counsel may be punished for collusion and deceit, with imprisonment for a year and a day, and perpetual silence in the courts. But, to the honour of our courts, the corruption of judges and the treachery of counsel are crimes now unheard of in these kingdoms. Indeed the wisdom and integrity of the British courts are justly proverbial.*
COURTS OF COMMON LAW AND EQUITY.
PIEPOUDRE. The lowest, and at the same time the most expeditious court of justice, known in England, is the court of piepoudre, so called from the dusty feet of the suitors. It is a court of record, incident to
every fair and market; of which the steward of him who owns or has the toll of the market, is the judge; and its jurisdiction extends to administer justice for all commercial injuries done in that very fair or market, and not in any preceding one. So that the injury must be done, complained of, heard, and determined, within the compass of one and the same day, unless the fair continues longer. This court has cognizance of all matters of contract that can possibly arise within the precincts of that fair or market; and the plaintiff must make oath that the cause of an action arose there. From this court a writ of error lies, in the nature of an appeal to the courts of Westminster, which are bound to issue writs of execution, in aid of its process, after judgment, where the person or effects of the defendant are not within the limits of this inferior jurisdiction.
THE COURT BARON, is a court incident to every manor in the kingdom, to be holden by the steward within the manor. This court baron is of a double nature; one is a customary court, appertaining entirely to the copyholders, in which their estates are transferred by surrender and admittance, and other matters transacted relative to their tenures only. The other is a court of law, and it is the court of the barons, by which name the freeholders were sometimes anciently called: for that is held before the freeholders, who owe suit and service to the manor, the steward being rather the registrar than the judge.
A HUNDRED COURT is only a large court baron, being held for all the inhabitants of a particular hundred, instead of a manor. The free suitors are here also the judges, and the steward the registrar, as in the case of a court baron. It is not a court of record; but resembles the former in all points, except that in point of territory it is of a greater jurisdiction. But these courts are fallen into disuse with regard to the trial of actions, because the causes are liable to be removed to the superior court, and may also be reviewed by writ of false judgment.
THE COUNTY COURT is incident to the jurisdiction of the sheriff. It is not a court of record, but may hold pleas of debt or damages under the value of 40s. But as proceedings in these courts, are removable into the king's superior courts, and as a writ of false judgment may be had, in nature of a writ of error, bringing actions into this court has fallen into disuse.
COMMON PLEAS.-This court is sometimes called in law, the court of common bench. The distribution of common justice between man and man was thrown into so provident an order, that the great judicial officers were made to form a check upon each other, the court of chancery issuing all original writs under the great seal to the other courts; the common pleas being allowed to determine all causes between private subjects, the exchequer managing the king's revenue, and the court of king's bench retaining all the jurisdiction which was not cantoned out to other courts,
and particularly the superintendance of all the rest, by way of appeal, and the sole cognizance of pleas of the crown, or criminal cases. For pleas, or suits, are regularly divided into two sorts; pleas of the crown, which comprehend all criminal misdemeanors wherein the king, on behalf of the public, is plaintiff and common pleas, which include all civil actions depending between subject and subject. The former of these were the proper object of the jurisdiction of the court of king's bench, the latter of the court of common pleas; which is a court of record, and is styled the lock and key of the common law; for herein only can real actions which concern the right of freehold or the reality, be originally brought; and all other, or personal pleas, between man and man, are likewise here determined; though in most of them the king's bench has also a concurrent authority. The judges of this court are at present four in number, one chief, and three puisne (pronounced puny) justices created, by the king's letters patent, who sit every day in the four terms to hear and determine all matters of law arising in civil causes, whether real, personal, or mixed and compounded of both. Of these it takes cognizance, as well originally, as upon removal from the inferior courts before mentioned. But a writ of error in the nature of an appeal, lies from this court into the court of king's bench.
COURT OF KING'S BENCH.-This court is so called because the king used to sit there in person, and the style of the court is still coram ipso rege. It is the supreme court of common law in the kingdom; consisting of a chief justice and three puisne justices, who are by their office the sovereign conservators of the peace, and supreme coroners of the land. Yet, though the king himself used to sit in this court, and still is supposed to do so, he did not determine any cause or motion, but by the mouth of his judges, to whom he has committed his whole judicial authority.
The jurisdiction of this court is very high, and transcendent. It keeps all inferior jurisdictions within the bounds of their authority, and may either remove their proceedings to be determined here, or prohibit their progress below. It superintends all civil corporations in the kingdom. It commands magistrates and others to do what their duty requires, in any case where there is no other specific remedy. It protects the liberty of the subject, by speedy and summary interposition. It takes cognizance of both criminal and civil causes; the former in what is called the crownside, or crown-office, the latter in the plea-side of the court.
For this court is likewise a court of appeal, into which may be removed, by writ of error, all determinations of the court of common pleas, and of all inferior courts of record in England; and to which, till lately, a writ of error lay also from the court of king's bench in Ireland. Yet even this so high and honourable court is not the dernier resort of the subject; for if he be not satisfied with any determination here, he may remove it
by writ of error into the house of lords, or the court of exchequer chamber, as the case may happen, according to the nature of the suit, and the manner in which it has been prosecuted.
THE COURT OF EXCHEQUER is inferior in rank, not only to the court of king's bench, but to the common pleas also. It is a court, both of law and equity, and is principally intended to order the revenues of the crown, and to recover the king's debts and duties. Its name of exchequer, (scaccarium,) arises from the chequered cloth, resembling a chess board, which covers the table there; and on which, when certain of the king's accounts are made up, the sums are marked and scored with counters. It consists of two divisions; the receipt of the exchequer, which manages the royal revenue, and the court or judicial part of it, which is again subdivided into a court of equity, and a court of common law.
The court of equity is held in the exchequer chamber, before the lord treasurer, the chancellor of the exchequer, the chief baron, and three puisne ones. Its primary and original business is to call the king's debtors to account, by bill filed by the attorney-general; and to recover any lands, tenements, or hereditaments, any goods, chattels, or other profits or benefits, belonging to the crown. For as all the officers and ministers of this court have, like those of other superior courts, the privilege of suing and being sued only in their own court, so also the king's debtors and farmers, and all accomptants of the exchequer, are privileged to sue and implead all manner of persons, in the same court of equity that they themselves are called into: they have likewise the privilege to sue and implead one another, or any stranger, in the same kind of common law actions (where the personality is concerned) as are prosecuted in the court of common pleas. On the equity side of this court, the clergy have long been used to exhibit their bills for non-payment of their tithes, in which case the surmise of being the king's debtor is not a fiction, the clergy being bound to pay him their first fruits and annual tenths. But the chancery
An appeal from peers; but from
has of late years obtained a large share of this business. the equity side of this court lies immediately to the house of the common law side, a writ of error must be brought into the court of exchequer chamber. And from the determination there had, there lies, in the last resort, a writ of error to the house of lords.
THE HIGH COURT OF CHANCERY is the last and most important court in matters of civil property, of any of the king's supreme and original courts of justice. The office of chancellor, or lord keeper, is at present created by the mere delivery of the king's great seal into his custody whereby he becomes, without writ or patent, an officer of the greatest weight and power of any now subsisting in the kingdom; and superior in point of precedency to every temporal lord. He is a privy councillor by his office, and prolocutor of the house of lords by prescription. The