ePub 版

law. But if there be any discordance or variation in any of the three sentences, an appeal lies in the last resort, to judges delegates appointed by the crown, under the great seal in chancery.

DOCTORS COMMONS. This college of civilians is established for the study of the civil law, in which, courts are kept for the trial of civil and ecclesiastical causes, under the archbishop of Canterbury and the bishop of London, as in the court of arches and the prerogative court. There are also offices in which wills are deposited and searched, and a court of faculties and dispensations. The name of commons is given to this college, from the circumstance of the civilians commoning together as in other colleges. This edifice is situated in Great Knight Rider Street, near the college of arms, on the south side of St Paul's Cathedral. The old building which stood in this place was purchased for the residence of the civilians and canonists, by Henry Harvey, doctor of the civil and canon law, and dean of the arches. But this edifice being destroyed by the general devastation in 1666, they removed to Easter House, in the Strand, where the civilians had their chambers and offices, and their courts were held in the hall. But some years after, the commons being rebuilt in a more convenient and elegant manner than before, the civilians returned thither. The causes of which the civil or ecclesiastical law do, or may, take cognizance, are, blasphemy, apostasy, heresy, ordinations, institutions to benefices, celebration of divine service, matrimony, divorces, bastardy, tithes, oblations, obventions, mortuaries, dilapidations, reparations of churches, probates of wills, administrations, simony, incest, fornication, adultery, pensions, procurations, commutation of penance, right of pews, and others of the same kind. Those who practise in these courts are divided into two classes, advocates and proctors. The advocates are such as have taken the degree of doctor of civil law, and are retained as counsellors and pleaders. These must first, upon their petition to the archbishop, obtain his fiat, and thus they are admitted by the judge to practise. The following is their mode of admission: Two senior advocates in their scarlet robes, with the mace carried before them, conduct the doctor up the court with three reverences, and present him with a short Latin speech, together with the archbishop's rescript. Then, having taken the oaths, the judge admits him, and assigns him a place or seat in the court, which he is always to keep when he pleads. Both the judge and advocate, if of Oxford, wear in court scarlet robes, and hoods lined with taffeta; but if of Cambridge, white minever, and round black velvet caps. The proctors or procurators exhibit their proxies for their clients, and make themselves parties for them, and draw and give pleas, or libels and allegations in their behalf, produce witnesses, prepare causes for sentence, and attend the advocates with the proceedings. These are also admitted by the archbishop's fiat, and introduced by two senior proctors. They wear black robes and


hoods, lined with fur. The terms for the pleading and ending of causes in the civil courts, are but slightly different from the term times of the common law. The order as to the time of the sitting of the several courts, is as follows. The court of arches having the pre-eminence, sits first in the morning, the court of admiralty sits in the afternoon in the same day, and the prerogative court also sits in the afternoon.

INSOLVENT DEBTORS' COURT.-The defective state of the law respecting the issuing of mesne process, and the frequency of insolvency acts, rendered some such court as this necessary. It was established about the year 1814, as an experiment for five years, being chiefly founded on the cessio bonorum principle of the law of Scotland; a debtor is entitled te petition for his discharge out of prison, after an imprisonment of three months, on condition of surrendering all his effects for the use of his creditors. This discharge, if it should not be conditional, on the ground of extravagance, or fraud having been committed by the debtor, releases the person; but any property that can be traced to him, although it may have been subsequently acquired, is liable for the payment of his debts; the person is for ever released, but property never, so long as any debts remain unsatisfied, where there is an unconditional discharge.

The acts constituting the insolvent debtors' court, contain the regulations for its guidance, and appoint a commissioner to carry them into effect. The construction to be put upon these laws is left to his sole discretion; there is no intervention of a jury; and thus the court partakes of the mingled principles of law and equity, having specific regulations to enforce, at the same time possessing a large discretionary power.

How far the principle of releasing the person, and fixing the property of a debtor, have answered the expectations of the supporters of this change in the practice of the common law, we shall not pretend to decide, in an impartial matter-of-fact work like the present; but to assist in others coming to a conclusion, on what so materially affects credit and the interests of trade in general, the following facts may not be unacceptable; they are drawn from the Commons' report on the subject, which the house ordered to be printed a very short time after the constitution of the court.

Feb. 1st, 1816, there had been presented 7,509 insolvent debtors' petitions; of these 1,419 were withdrawn in consequence of the 54 Geo. III., so that 6,090 petitions remained; of that number 5,511 had been heard, determined, and discharges ordered. There were 186 petitions remanded, and 393 not finally determined, which made up the 6,090 petitions.

The amount of debts in the schedule withdrawn, was

Ditto of the petitions remanded

Total gross amount of the schedule of all the petitions presented

[ocr errors]

£1,132,171 220,699 5,598,574

On the other side of the statement we find, that assigning of the effects of 500, out of the 5,511 debtors, had been appointed and that the assignees,

in fifteen of these cases, had made returns to the court. The gross amount of their returns was £1,499, 48.

According to returns made in the house of commons, founded on the above, and subsequent returns to March, 1817, there had been about nine thousand persons liberated, whose debts amounted to nearly nine millions ; and the average dividend resulting from the property given up to the creditors, was a quarter of a farthing, and half a farthing in the pound! Mr Alderman Waithman, arguing from what had passed, declared, that by the time this act expired, there would be liberated 14,000 persons, and fifteen millions of debts. In the course of the examinations which took place before the house of commons, the imperfect state of the laws affect. ing debtor and creditor was made still more manifest, as will appear from the following singular document, extracted from the evidence of Mr Clark, at that time clerk of the insolvent debtors' court," showing how a debtor may harass a creditor," and sold among the prisoners at sixpence each.

"When arrested and held to bail, and after being served with a declaration, you may plead a general issue, which brings you to trial sooner than any plea that you can put in; but if you want to vex your plaintiff, put in a special plea; and if in custody, get your attorney to plead in your name, which will cost you £1, 1s. and your plaintiff £1, 10s. as expenses. If you do not mean to try the cause, you have no occasion to do so till your plaintiff gets judgment against you; he must, in the term after you put in a special plea, send in what is termed the paper book, which you must return with 7s. 6d., otherwise you will not put him to half the expenses. When he proceeds and has received a final judgment against you, get your attorney to search the office appointed for that purpose in the temple, and when he finds that judgment is actually signed, he must give notice to the plaintiff's attorney, to attend the master to tax his costs, at which time your attorney must have a writ of error ready, and give it to the plaintiff's attorney before the master, which puts him to a very great expense, as he will have the same charges to go over again. The writ of error will cost you £4, 4s.; if you want to be farther troublesome to your plaintiff, make your writ of error returnable in parliament, which costs you £8, 8s. and your plaintiff £100. Should he have courage to follow you through all your proceedings, then file a bill in the exchequer, which will cost him five or six pounds more, and if he answers it, it will cost him £80 more; after this you may file a bill in chancery, which will cost about £10, and if he does not answer this bill, you will get an injunction, and at the same time an attachment from the court against him, and may take his body for contempt of court in not answering your last bill; you may file your bill in the court of chancery instead of the exchequer, only the latter costs you the least. If you are at any time served with a copy of a writ, take no farther notice of it than by keeping

[ocr errors]

it: when you are declared against, do not fail to put in a special plea immediately, and most likely you will hear no more of the business, as your plaintiff will probably not like to incur any further expense, after having been at so much."


[merged small][merged small][ocr errors][merged small]

0 7 6

4 4 0

8 8 0

6 60

10 0 0

£30 10 0

[ocr errors]

PLAINTIFF's costs.

[merged small][merged small][merged small][ocr errors][merged small]

£314 0 0

Thus debtors have the legal means of harassing their creditors, without putting themselves to a tenth part of the expenses to which they subject the plaintiff, whose property they have previously run through or squandered!


MANNER OF MAKING A JUDGE.-The judges must be selected from the sergeants at law, and the manner in which they are created merits The lord chancellor, having taken his seat in the court where the vacancy is to be filled up, bringing with him the letters patent of creation, causes the sergeant elect to be introduced, to whom in open court his lordship notifies the king's pleasure, and afterwards directs the patent to be publicly read. When this has been done, the master of the rolls reads to the new judge the oath he is to take, which states, that he shall indifferently administer justice to all men, as well foes as friends, that shall have any suit or plea before him; and this he shall not forbear to do, though the king by his letters, or by express word of mouth, should command the contrary; and that from time to time he shall not receive any fee or pension, or living of any man, but of the king only; nor any gift, reward, or bribe, of any man having suit or plea before him, saving meat and drink, which shall be of no great value. The oath having been administered, the lord chancellor delivers to the new judge the letters patent of his creation; and the lord chief justice of the court assigns to him a place on the bench, where he is then placed, and which he is enjoined to keep.

INNS OF COURT.-It may not be improper to notice the institutions in which the professors of the law are supposed to be bred; but they are now only nominally what they were formerly in reality. Instead of any public "moots," exercises and duties, to be observed by students previously to their being privileged to be called to the bar, they have now only to eat a certain number of dinners, during the terms of three or five years, in one of the Inns of Court, the expense of which, together with a

species of fine, amounts to about £130. After having undergone this probationary requisite, the students are qualified for admission to the bar, if they can persuade members of the society to move that they be called, even though the party so recommended had never once seen a law book. There is seldom any objection to the call; it is not however always a matter of course. The celebrated HORNE TOOKE, who studied for the pulpit, the parliament, and the bar, found himself baffled in each of those pursuits; the motion that he be called to the bar, after he had regularly gone his terms, was negatived by a majority of one! But although much pleasantry has been occasioned by the practice of thus eating the way to the bar, it must not be presumed that no preparatory study is pursued. Public courses of study were found inefficacious, and were abandoned; but all those who have risen to celebrity as lawyers, laid the foundation of their greatness by sheer hard study. The young men not only apply themselves to courses of law reading, but come into the practice of the laws, and the application of their own researches, by being articled as pupils to leading special pleaders, counsel, &c. Two or three hundred guineas are frequently paid for permission to study in the office of a special pleader, or barrister of high consideration and great practice. The study of the law is a certain road to greatness in the state. The method which lawyers are obliged to pursue in all their studies and pleadings, gives them advantages in public speaking both in parliament and at the bar, over every body else; hence may be traced the amazing success and celebrity that often attends them in life, humble individuals rising to be the first law officers and ministers of the crown.

As a member of the law is obliged to belong to an Inn of court, and as the students and practitioners generally reside in chambers in some of the inns, those courts have become famous for the production of men of learning. The Inns of court are governed by masters, principals, benchers, stewards, &c. They have not any judicial authority over their members. For lighter offences, persons are only excluded, or not allowed to eat at the common table with the rest; and for greater, they lose their chambers; and when once expelled from one society, they are never received by any of the rest. As the societies are not incorporated, they have neither lands nor revenues, nor any thing for defraying the charges of the house, but what is paid for admissions, and other dues for the chambers. The members may be divided into benchers, outer barristers, inner barristers, and students. The benchers are the seniors who have the government of the whole house; and out of these is annually chosen a treasurer, who receives, disburses, and accounts for all the money belonging to the house.

THE TEMPLE.-There are four principal inns of court, the Inner and Middle Temples, Lincoln's Inn, and Gray's Inn. The Temple is so called, because it was anciently the dwelling-house of the Knights Tem

« 上一頁繼續 »