counsel sit within the bar of the respective courts; but they are not sworn; and therefore are at liberty to be retained in causes against the crown. And all other serjeants and barristers P indiscriminately may take upon them the protection and defence of any suitors, whether plaintiff or defendant; who are therefore called their clients, 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," that a counsel can maintain no action for his fees; which are given, not as locatio vel conductio, 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: as is also laid down with regard to advocates in the civil law, whose honorarium was directed by a decree of the senate not to exceed in any case ten thousand sesterces, or about 801. 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 prostitute and illiberal men, a few of whom may sometimes insinuate themselves even into the most honourable profession, it has been held that a counsel is not answerable for any matter by him spoken, relative to the cause in hand, and suggested in his client's 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 his instructions if it be impertinent to the cause in hand, he is then liable to an action

P Students, who do not wish to be called to, may obtain permission to practise, under the bar. This class of practitioners have hitherto been called special pleaders, or equity draftsmen, according as they prepared pleadings in the common law or equity courts, or conveyancers, if they prepared deeds. These distinctions are also in general preserved after the call to the bar.

Serjeants and barristers are privileged from serving on juries, and from arrest on civil process, whilst they are attending the courts or sittings at nisi prius, or on circuit. 1 H. Bl. 636.

been held, that no action lies to recover back a fee, given to a barrister to argue a cause, which he did not attend. Peake, 122. Formerly it was thought, that if a counsel disclosed his client's case, or neglected to attend to it, he was liable to be sued. Vin. Ab. Actions of Assumpsit, P. But it is now considered that no such action is maintainable. Peake, 96.

Special pleaders, however, equity draftsmen, and conveyancers, who have taken out certificates to practise under the bar, and therefore are not counsel, may recover their reasonable charges for business done by them. Poucher v. Norman, 3 B. & C. 744.

t Ff. 11, 6, 1.

" Tac. Ann. lib. 11, c. 5.

from the party injured. 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 which may be inflcted for gross misdemeanors in practice," although the course usually resorted to is for the benchers of the inn of court to which the offender belongs, to disbar him.'

Cro. Jac. 90. Hodgson v. Scarlett, 1 B. & Al. 232. The publication of the counsel's statement by a third party, may however expose such a third party

to an action. Flint v. Pike, 4 B. & C.

473.

W

Raym. 376. Hughes v. Scirace, 2 Atk. 173. 3 C. B. n. s. 804, n.

29

CHAPTER IV.

OF THE COURTS.

WE are next to consider the several species and distinctions of courts of justice, which are acknowledged 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 or special jurisdiction in some particular parts of it.

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 any 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 the supreme courts, which were respectively constituted to correct the errors of the inferior ones, and to determine such causes as by reason of their weight and difficulty demanded a more solemn discussion. The course of justice flowing in large streams from the king, as the fountain, to his superior courts of record; and being then subdivided into smaller channels, till the whole and every part of the kingdom were plentifully watered and refreshed. An institution that seems highly agreeable to the dictates of natural reason, as well as of more enlightened policy; being equally similar to that which prevailed in Mexico and Peru before they were discovered by the Spaniards, and to that which was established in the Jewish republic by Moses. In Mexico each town and province had its proper judges, who heard and decided causes, except when the point in litigation was too intricate for their determination; and then it was remitted to the supreme court of the empire, established in the capital, and consisting of twelve judges. Peru, according to Garcilasso de Vega, a historian descended from the ancient Incas of that country, was divided into small districts containing ten families each, all registered and

under one magistrate; who had authority to decide little differences and punish petty crimes. Five of these composed a higher class of fifty families; and two of these last composed another called a hundred. Ten hundreds constituted the largest division, consisting of a thousand families; and each division had its separate judge or magistrate, with a proper degree of subordination. In like manner we read of Moses, that, finding the sole administration of justice too heavy for him, he "chose able men out of all Israel, "such as feared God, men of truth, hating covetousness; and "made them heads over the people, rulers of thousands, rulers of "hundreds, rulers of fifties, and rulers of tens; and they judged "the people at all seasons; the hard causes they brought unto "Moses; but every small matter they judged themselves." These inferior courts, at least the name and form of them, still continue in our legal constitution; but as the superior courts of record ‘obtained, at a very early period in our legal history, a concurrent original jurisdiction with them, these petty tribunals soon fell into decay, and have now fallen almost into oblivion. Their place in our judicial polity has been supplied in many respects by the county courts.'

The order I shall observe in discoursing on these several courts, constituted for the redress of civil injuries, for with those of a jurisdiction merely criminal I shall not at present concern myself, will be by beginning with the lowest, and those whose jurisdiction, though public and generally dispersed throughout the kingdom, is yet, with regard to each particular court, confined to very narrow limits; and so ascending gradually to those of the most extensive and transcendent power.

I. The lowest, and at the same time the most expeditious court of justice known to the law of England, is the court of piepoudre; curia pedis pulverizati; so called from the dusty feet of the suitors; or, according to Sir Edward Coke," because justice is there done as speedily as dust can fall from the foot;-upon the same principle that justice among the Jews was administered in the gate of the city, that the proceedings might be more speedy as well as public. This court, which is now, however, entirely

a 4 Inst. 272.

b Barrington's Observat. on the Stat. 433, 4th ed., whose etymology is much

more ingenious and satisfactory; it being derived, according to him, from pied puldreaux, a pedlar, in old French,

obsolete,' 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. 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.

d

II. The court-baron is a court incident to every manor in the kingdom, to be holden by the steward within the said manor. This court-baron is of two natures: the one a customary court, appertaining entirely to the copyholders, and in which their estates are transferred by surrender and admittance. This court, or rather this branch of jurisdiction, still remains. The other court was a court of common law, held before the freeholders who owed suit and service to the manor, the steward being rather the registrar than the judge; and was composed of the lord's tenants, who were the pares of each other, and were bound by their feudal tenure to assist their lord in the dispensation of domestic justice. It was anciently held every three weeks; and its most important business was to determine, by writ of right, all controversies relating to the right of lands within the manor. 'The writ of right having been abolished, this branch of its authority no longer exists; and the rest of its jurisdiction, that of holding pleas of personal action, debt, trespass, or the like, where the debt or damage did not amount to forty shillings, was practically abolished by 30 & 31 Vict. c. 142, s. 28.'"

f

and therefore signifying the court of such petty chapmen as resort to fairs or markets.

C

'Knight's "Once upon a Time," chap. "Items of the Obsolete:" London, 1857. The last court actually held was, it is supposed, that of Bartholomew Fair in London in the year 1854, the last occasion on which the fair itself was proclaimed.'

a See vol. ii., ch. 4, ch. 6, and ch. 22. 3 & 4 Will. IV. c. 27, s. 36.

f The proceedings on a writ of right were invariably removed into the Court 'of Common Pleas' by a precept from the sheriff, called a tolt, "quia tollit atque eximit causam e curiâ baronum." And the proceedings in all other actions

might in like manner be removed into the superior courts by writs of pone, or accedas ad curiam, according to the nature of the suit. After judgment given, a writ also of false judgment lay to the courts at Westminster to rehear and review the cause, and not a writ of error; for this was not a court of record: and therefore, in some of these writs of removal, the first direction given was to cause the plaint to be recorded, recordari facias loquelam.

A similar jurisdiction to that exercised by the courts-baron was formerly exercised by the hundred-courts, which were only larger courts-baron, being held for all the inhabitants of a particular hundred instead of a manor; the