PRIVATE WRONGS.
BOOK III.

CHAPTER THE THIRD.
OF COURTS IN GENERAL.

THE next, and principal, object of our enquiries is the redrefs of injuries by fuit in courts: wherein the act of the parties and the act of law co-operate; the act of the parties being neceffary to fet the law in motion, and the procefs of the law being in general the only inftrument, by which the parties are enabled to procure a certain and adequate redrefs.

AND here it will not be improper to obferve, that although, in the feveral cafes of redrefs by the act of the parties mentioned in a former chapter^a , the law allows an extrajudicial remedy, yet that does not exclude the ordinary courfe of juftice: but it is only an additional weapon put into the hands of certain perfons in particular inftances, where natural equity or the peculiar circumftances of their fituation required a more expeditious remedy, than the formal procefs of any court of judicature can furnifh. Therefore, tough I may defend mayfelf, or relations, from external violence, I yet am afterwards entitled to an action of affault and battery: though I ma retake my goods if I have a fair and peaceable opportunity, this power of recaption does not debar me from my action of trover of detinue: I may either enter on the lands, on which I have a right of entry, or may demand poffeffion by a real action: I may either abate a nufance by my own authority, or call upon the law to do it for me: I may diftrein for rent, or have an action of debt at my own option:

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^a ch. 1.
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if I do not diftrein my neighbours cattle demage-feafant, I may compel him by action of trefpafs to make me a fair fatisfaction: if a heriot, or a deodand, be withheld from me by fraud or force, I may recover it though I never feized it. And with regard to accords and arbitrations, thefe, in their nature being merely an agreement or compromife, moft indifputably fuppofe a previous right of obtaining redrefs fome other way, which is given up by fuch agreement. But as to remedies by the mere operation of law, thofe are indeed given, becaufe no remedy can be miniftred by fuit or action, without running into the palpable abfurdity of a man's bringing an action againft himfelf: the two cafes wherein they happen being fuch, wherein the only poffible legal remedy would be directed againft the very perfon himfelf who feeks relifef.

IN all other cafes it is a general and indifputable rule, that where there is a legal right, there is alfo a legal remedy, by fuit or action at law, whenever that right is invaded. And, in treating of thefe remedies by fuit in courts, I fhall purfue the following method: firft, I fhall confider the nature and feveral fpecies of courts of juftice: and, fecondly, I fhall point out in which thefe courts, and in what manner, the proper remedy may be had for any private injury; or, in other words, what injuries are cognizable, and how redreffed, in each refpective fpecies of courts.

FIRST then, of courts of juftice. And herein we will confider, firft, their nature and incidents in general; and, then, the feveral fpecies of them, erected and acknowledged by the laws of England.

A COURT is defined to be a place wherein juftice is judicially adminiftred^b . And, as by our excellent conftitution the fole executive power of the laws is fefted in the perfon of the king, it will follow that all courts of juftice, which are the me-

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^b Co. Litt. 58.
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dium
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dium by which he adminifters the laws, are derived from the power of the crown^c . For whether created by act of parliament, letters patent, or prefcription, (the only methods of erecting a new court of judicature^d ) the kings confent in the two former is expreffly, and in the latter impliedly, given. In all thefe courts the king is fuppofed in contemplation of law to be always prefent; but as that is in fact impoffible, he is there reprefented by his judges, whofe power is only an emanation of the royal prerogative.

FOR the more fpeedy, univerfal, and impartial adminiftration of juftice between fubject and fubject, the law hath appointed a prodigious variety of courts, fome with a more limited, others with a more extenfive jurifdiction; fome conftituted to enquire only, others to hear and determine; fome to determine in the firft inftance, others upon appeal and by way of review. All thefe in their turns will be taken notice of in their refpective places: and I fhall therefore here only mention one diftinction, that runs throughout them all; viz. that fome of them are courts of record, others not of record. A court of record is that where the acts and judicial proceedings are enrolled in parchment for a perpetual memorial and teftimony: which rolls are called the records of the court, and are of fuch high and fupereminent authority, that their truth is not to be called in queftion. For it is a fettled rule and maxim that nothing fhall be averred againft a record, nor fhall any plea, or even proof, be admitted to the contrary^e . And if the exiftence of a record be denied, it fhall be tried by nothing but itfelf; that is, upon bare infpection whether there be any any fuch record or no; elfe there would be no end of difputes. But if there appear any miftake of the clerk in making up fuch record, the court will direct him to amend it. All courts of record are the king's courts, in right of his crown and royal dignity^f , and therefore no other court hath authority to fine or imprifon; fo that the very erection of

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^c See book 1. ch. 7.
^d Co. Litt. 260.
^e Ibid.
^f Finch. L. 231.
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a new jurifdiction with power of fine or imprifonment makes it inftantly a court of record^g . A court not of record is the court of a private man, whom the law will not intruft with any difcretionary power over the fortune or liberty of his fellow-fubjects. Such are the courts-baron incident to every manor, and other inferior jurifdictions: where the proceedings are not enrolled or recorded; but, as well their exiftence as the truth of the matters thereiin contained fhall, if difputed, be tried and determined by a jury. Thefe courts can hold no plea of matters cognizable by the common law, unlefs under the value of 40 s; nor of any forcible injury whatfoever, not having any procefs to arreft the perfon of the defendant^h .

IN every court there muft be at leaft three conftituent parts, the actor, reus, and judex: the actor, or plainfiff, who complains of an injury done; the reus, or defendant, who is called upon to make fatisfaction for it; and the judex or judicial power, which is to examine the truth of the fact, to determine the law arifing upon that fact, and, if any injury appears to have been done, to afcertain and by it's officers to apply the remedy. It is alfo ufual in the fuperior courts to have attorneys, and advocates or counfel, as affiftants.

AN attorney at law anfwers to the procurator, or proctor, of the civilians and canoniftsⁱ . And he is one who is put in the place, ftead, or turn of another, to manage his matters of law. Formerly every fuitor was obliged to appear in perfon, to profecute or defend his fuit, (according to the old Gothic conftitution^k) unlefs by fpecial licence under the king's letters patent^l . This is ftill the law in criminal cafes. And an idiot cannot to this day appear by attorney, but in perfon^m ; for he hath not difcretion to enable him to appoint a proper fubftitute: and

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^g Salk. 200. 12 Mod. 388.
^h 2 Inft. 311.
^l Pope Boniface VIII, in 6 Decretal. l. 3. t. 16. §. 3. fpeaks of “procuratoribus, qui in “aliqulbus partibus atornati mancupanter.”
^k Stiernhook de jure Goth. l. t. c. 6.
^l F. N. B. 25.
^m Ibid. 27.
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VOL. III.

D

upon

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upon his being brought before the court in fo defencelefs a condition, the judges are bound to take care of his interefts, and they fhall admit the beft plea in his behalf that any one prefent can fuggeftⁿ. But, as in the Roman law “cum olim in ufu ???, “alterius nomine agi nom poffe, fed, quia hoc non minimam incommoditatem habebat, coeperunt homines per procuratores litigare^o ,” fo with us, upon the fame principle of convenience, it is now permitted in general, by divers antient ftatutes, whereof the firft is ftatute Weft. 2. c. 10. that attorneys may be made to profecute or defend any action in the abfence of the parties to the fuit. Thefe attorneys are now formed into a regular corps; they are admitted to the execution of their office by the fuperior courts of Weftminfter-hall; and are in all points officers of the refpective courts in which they are admitted: and, as they have many privileges on account of their attendance there, fo they are peculiarly fubject to the cenfure and animadverfion of the judges. No man can practife as an attorney in any of thofe courts, but fuch as is admitted and fworn an attorney of that particular court: an attorney of the court of king's bench cannot practice in the court of common pleas; nor vice verfa. To practice in the court of chancery it is alfo neceffary to be admitted a folicitor therein: and by the ftatute 22 Geo. II. c. 46. no perfon fhall act as an attorney at the court of quarter feffioins, but fuch as has been regularly admitted in fome fuperior court of record. So early as the ftatute 4 Hen. IV. c. 18. it was enacted, that attorneys fhould be examined by the judges, and none admitted but fuch as were virtuous, learned, and fworn to do their duty. And many fubfequent ftatutes^p have laid them under farther regulations.

OF advocates, or (as we generally call them) counfel, there are two fpecies or degrees; barrifters, and ferjeants. The former are admitted after a confiderable period of ftudy, or at leaft ftanding, in the inns of court^q ; and are in our old books ftiled

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ⁿ Bro. Abr. t. ideot. I.
^o Inft. 4. tit. 10.
^p 3 Jac I. c. 7. 12 Geo. I. c. 29. 2 Geo. II. c. 23. 22 Geo. II. c. 46. 23 Geo. II. c. 26.
^q See vol. introd. §. 1.
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apprentices, apprenticii ad legem, being looked upon as merely learners, and not qualified to execute the full office of an advocate till they were fixteen years ftanding; at which time, according to Fortefcue^r, they might be called to the ftate and degree of ferjeants, or fervientes ad legem. How antient and honourable this ftate and degree is, the form, fplendor, and profits attending it, have been fo fully difplayed by many learned writers^s , that they need not be here enlarged on. I fhall only obferve, that ferjeants at law are bound by a folemn oath^t to do their duty to their clients: and that by cuftom^u the judges of the courts of Wftminfter are always admitted into this venerable order, before they are advanced to the bench; the original of which was probably to qualifty the puifne barons of the exchequer to become juftices of affife, according to the exigence of the ftatute of 14 Edw. III. c. 16. From both thefe degrees fome are ufually felected to be his majefty's counfel learned in the law; the two principal of whom are called his attorney, and folicitor, general. The firft king's counfel, under the degree of ferjeant, was fir Francis Bacon, who was made fo honoris caufa, without either patent or fee^w ; fo that the firft of the modern order (who are now the fworn fervants of the crown, with a ftanding falary) feems to have been fir Francis North, afterwards lord keeper of the great feal to king Charles II^x . Thefe king's counfel anfwer in fome meafure to the advocates of the revenue, advocati fifci, among the Romans. For they muft not be employed in any caufe againft the crown without fpecial licence; in which reftriction they agree with the advocates of the fife^y : but in the imperial law the prohibition was carried ftill farther, and perhaps was more for the dignity of the fovereign; for, excepting fome peculiar caufes, the fifcal advocates were not permitted to be at all concerned in private fuits between fubject and

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^r de LL. c. 50.
^s Fortefe. ibid. 10 Rep. pref. Dugdal. Orig. Turid. To which may be added a tract by the late ferjeant Wynne, printed in 1765, intitled, “obfervations touching “the antiqaity and dignity of the degree “of ferjeant at law.”
^t 2 Inft. 214.
^u fortefe. c. 50.
^w See his letters. 256.
^x See his life by Roger North. 37.
^y Cod. 2. 9. 1.
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fubject. A cuftom has of late years prevailed of granting letters patent of precedence to fuch barrifters, as the crown thinks proper to honour with that mark of dictinction: whereby they are intitled to fuch rank and pre-audience^a as are affigned in their refpective patents; fometimes next after the king's attorney general, but ufually next after his majefty's counfel then being. Thefe (as well as the queen's attorney and folicitor general^b) rank promifcuoufly with the king's counfel, and together with them fit within the bar of the refpective courts: but receive no falaries, and are not fworn; and therefore are at liberty to be retained in caufes againft the crown. And all other ferjeants and barrifters indifcriminately (except in the court of common pleas where only ferjeants are admitted) may take upon them the protection and defence of any fuitors, whether plaintiff or defendant; who are therefore called their clients, like the dependants upon the antient Roman orators. Thofe indeed practifed gratis, for honour merely, or at moft for the fake of gaining influence: and fo likewife it is eftablifhed with us^c , that a counfel can maintain no action for his fees; which are given, not as locatio vel conductio, but as quiddam honorarium; not as a falary or hire, but as a mere gratuity, which a counfellor cannot demand without doing wrong to his reputation^d: as is alfo laid down with regard to advocates in the civil law^e , whofe honorarium was directed by a decree of the fenate not to exceed in any cafe ten

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^z Cod. 2. 7. 13.
^a Pre-audience in the courts is reckoned of fo much confequence, that it may not be amifs to fubjoin a fhort table of the precedence which ufually obtains among the parctifers. 1. The king's premier ferjeant, (fo conftituted by fpecial patent.) 2. The king's antient ferjeant, or the eldeft among the king's ferjeants. 3. The king's advocate general. 4. The king's attorney general. 5. The king's folicitor general. 6. The king's ferjeants. 7. The king's counfel, with the queen's attorney and folicitor. 8. Serjeants at law. 9. The recorder of London. 10. Advocates of the civil law. 11. Barrifters. In the court of exchequer two of the moft experienced barrifters, called the poft-man and the tub-man, (from the places in which they fit) have alfo a precedence in motions.
^b Seld. tit. hon. 1. 6. 7.
^c Davis pref. 22. 1. Chan. Rep. 38.
^d Davis. 23.
^e Ff. 11. 6. 1.
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thoufand fefterces, or about 80 l. of Englifh money^f . And, in order to encourage due freedom of fpeech in the lawful defence of their clients, and at the fame time to give a cheek to the unfeemly licentioufnefs of proftitute and illiberal men (a few of whom may fometime infinuate themfelves even into the moft honourable profeffions) it hath been holden that a counfel is not anfwerable for any matter by him fpoken, relative to the caufe in hand, and fuggefted in his client's inftructions; although it fhould reflect upon the reputation of another, and even prove abfolutely groundlefs: but if he mentions an untruth of his own invention, or even upon inftructions if it be impertinent to the cuafe in hand, he is then liable to an action from the party injured^g . And counfel guilty of deceit or collufion are punifhable by the ftatute Weftm. 1. 3. Edw. I. c. 28. with imprifonment for a year and a day, and perpetual filence in the courts: a punifhment ftill fometimes infficted for grofs mifdemefnors in practice^h..

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^f Tac. ann. l. 11.
^g Cro. Jac. 90.
^h Raym. 376.
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