Page images
PDF
EPUB

court in so defenceless .a condition, the judges are bound to take care of his interests, and they fliall admit the best plea in his behalf that any one present can suggest ". But, as in the Roman law " cum olim in usu fuiffet, alterius nomine agi "non pojse, fed, quia hor non minimum incommoditatem habebat, *' coeperunt homines per procurators litigare °," so with us, upon the fame principle of convenience, it is now permitted in general, by divers antient statutes, whereof the first is statute Westm. 2. c. i o. that attorneys may be made to prosecute or defend any action in the absence of the parties to the suit. These attorneys are now formed into a regular corps; they are admitted to the execution of their office by the superior courts of Westminster-hall; and are in all points officers of the respective courts in which they are admitted: and, as they have many privileges on account of their attendance there, so they are peculiarly subject to the censure and animadversion of the judges. No man can practise as an attorney in any of those courts, but such as is admitted and sworn an attorney os that particular court: an attorney of the court of king's bench cannot practise in the court of common pleas; nor vice versa. To practise in the court of chancery it is also necessary to be admitted a solicitor therein: and by the statute 22 Geo. II. c. 46. no person shall act as an attorney at the court of quarter feffions, but such as has been regularly admitted in some superior court of record. So early as the statute 4 Hen. IV. c. 18. it was enacted, that attorneys should be examined by tjje judges, and none admitted but such as were virtuous, learned, and sworn to do their duty. And many subsequent statutes p have laid them under farther regulations.

Of advocates, or (as we generally call them) counsel, there are two species of degrees; barristers, and serjeants. The former are admitted after a considerable period of study, or at least standing, in the inns of court 1 •, and are in our old books (tiled apprentices, apprenticii adlegem,'being looked upon as merely learners, and not qualified to execute the full office of an advocate till they were sixteen years standing; at which time, according to Fortescue', they might be called to the state and degree of serjeants, orservientes ad legem. How antient and honourable this state and degree is, with the form, splendor, and profits attending it, hath been so fully displayed by many learned writers5, that it need not be here enlarged on. I shall only observe, that serjeants at law are bound by a solemn oath' to do their duty to their clients: and that by custom " the judges of the courts of Westminster are always admitted into this venerable order, before they are advanced to the bench; the original of which was probably to qualify the puisne barons of the exchequer to become justices of afhse, according to the exigence of the statute of 14 Edw. III. c. 16. From both these degrees some are usually selected to be his majesty's counsel learned in the law • the two principal of whom are called his attorney, and solicitor, general. The first king's counsel, under the degree of serjeant, was sir Francis Bacon, who was made so honoris causa, without either patent or fee w; so that the first of the modern order (who are now the sworn servants of the crown with a standing salary) seems to have been sir Francis North afterwards lord keeper of the great seal to kins; Charles II *. These king's counsel answer in some measure to the advocates of the revenue, advocati fisci, among the Romans. For they must not be employed in any cause against the crown without special licence •, in which restriction they agree with the advocates of the fife ': but in the imperial law the prohibition was carried still farther, and perhaps was more for the dignity of the sovereign ; for, excepting some peculiar causes, the fiscal advocates were not permitted to be at all concerned

n Bro. Abr. t. idal. 1. 1 Gco. II. c. 23. 22 Geo. II. c.4.6.

o Insi. 4. ut. 10.' 23 Geo. II. c. »6.

P 3 Jac. I. c. 7. 11 Geo. I. c. 19. H Sec Vol. I. introd. §. 1.

books

r it LL. c. 50. "the degree of serjeant at law."

« Fortesc. ibid. ioRep. pref. Dug- i i Inst. 214. dal. Orig. Jurid. To which may be n Fortesc. c. 50. added a tract by the late serjeant Wynne, . w See his letters. 256. printed in 1765, entitled," observations * See his life by Roger North. 37, "touching the antiquity and dignity of 1 C.J. 2. 9. 1.

in private suits between subject and subject z. 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 S 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 b) rank promiscuously with the king's counsel, and together with them fit 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. And all other serjeants and barristers indiscriminately (except in the court of common pleas, where only serjeants are admitted) may take upon them the protection and defence of any suitors, whether plaintiff or defendant: who are therefore called their cHints, like the dependants upon the ancient Roman orators. Those indeed practised gratis, for honour merely, or at most for the sake of gaining influence: and so likewise it is established with us c, that a counsel can maintain no action for his fees •, which are given, not as locatio vel conduftia, but as quiddam honorarium; not as a salary or hire, but as a mere gratuity, which a counsellor cannot demand without doing wrong to his reputation d: as is also laid down with,regard to advocates in the .civil law c, whose Ixnorarium was directed by a decree of die senate not to exceed in any case ten thousand

»^C«/. 2. 7. 13. 7. The king's counsel, with the

» Pre-audience in the courtt ia ree- queen's attorney and solicitor.

koned of so much consequence, that it 8. Serjeants at law.

may not be amiss to subjoin a short table 9. The recorder of London.

•f the prcccdcncr which usually obtains 10. Advocates of the civil law.

among the practise;). II. Barristers.

1. The king'? premier frrjeant, (so In the court of exchequer two of the most

constituted by special pate it.) experienced barristers, called the ytft

2. The king's antient serjeant, or man and the mi-man (from the place*

the cldelt among the king's scr- in which they sit) have also aprecedenca

jcaits. in motions.

3. The king's advocate general. b Scld. tit. hon. I. 6. 7.

4. The king'i attorney general. e Davis pref. 22. 1 Chan. Rep. 3S.

5. The king"', solicitor general. * Davis-. 23.

i. The king's (crjcami. "If. 11. 61.

sesterces,

sesterces, or about 80/. of English moneyf. And, in order to encourage due freedom of speech in the lawful defence of their clients, and at the fame time to give a check to the unseemly licentiousness of prostitute and illiberal men (a few of whom may sometimes insinuate themselves even into the most honorable professions) it hath been holden that a counsel is not answerable for any matter by him spoken, relative to the cause in hand, and suggested in his clients instructions; although it should reflect upon the reputation of another, and even prove absolutely groundless: but if he mentions an untruth of his own invention, or even upon instructions if it be impertinent to the cause in hand, he is then liable to an action from the party injured E. And counsel guilty of deceit or collusion are punishable by the statute Westm. 1. 3 Edw. I. c. 28. with imprisonment for a year and a day, and perpetual silence in the courts; a punishment still sometimes inflicted for gross misdemesiiors in practice h.

'Tac. ar.n. 1. jr. * Raym. 376.

I Cro. J ac. 90*

CHAPTER THE FOURTH.

Of The PUBLIC COURTS Of COMMON LAW And EQUITY.

WE are next to consider the several species and distinctions of courts of justice, which are acknowleged and used in this kingdom. And these are either such as are of public and general jurisdiction throughout the whole realm; or such as are only of a private and special jurisdiction in some particular parts of it. Of the former there arc four forts ; the universally established courts of common law and equity; the ecclesiastical courts; the courts military; and courts maritime. And, first, of such public courts as are courts of common law aud equity.

The policy of our ancient constitution, as regulated and established by the great Alfred, was to bring justice home to every man's door, by constituting as many courts of judicature as there are manors and townships in the kingdom ; wherein, injuries were redressed in an easy and expeditious manner, by the suffrage of neighbours and friends. These little courts however communicated with others of a larger jurisdiction, and those with others of a still greater power •, ascending gradually from the lowest to die supreme courts, which were 7 respectively

« PreviousContinue »