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a proper substitute : and upon his being brought before the court in so defenceless a condition, the judges are bound to [ 26 take care of his interests, and they thall admit the best plea in his behalf that any one present can suggest". But, as in the Roman law cum olim in ufu fuisset, alterius nomine agi « non polfe, fed, quia hoc non minimam incommoditatem habebut, coeperunt homines per procuratores litigare°,” so with us, upon the same principle of convenience, it is now permitted in general, by divers antient statutes, whereof the first is statute Westm. 2. c. 10, 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 at. torney in any of those courts, but such as is admitted and sworn 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 versa. To practice 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 sessions, 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 the judges, and none admitted but such as were virtuous, learned, and sworn to do their duty. And many subsequent statutes' have laid them under farther regulations (1). * Bro. dbrt. ideot. I.

2 Geo. II. c.23. 22 Geo. II. C. 46. Inft. 4. tit. 10.

23 Geo. II. c. 26. D3 Jac. I. c.7. 12 Ceo. I. c. 29.

(1) The number of attorneys has much increased within the last three centuries ; for an act of parliament passed in the 33 Her l'I. c.7. itates, that nos long before that time there had not been

more

Of advocates, or (as we generally call them) counsel, there are two fpecies or degrees; barrifters, and serjeants. The former are admitted after a considerable period of study,

or at least standing, in the inns of court 9; and are in our old [ 27 ) books filed 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 standing; at which time, according to Fortescue', they might be called to the state and degree of setjeants, or servientes ad legem. How antient and honourable this state and degree is, with the form, splendor, and profits attending it, hath been fo fully displayed by many learned writers', 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 pro. bably to qualify the puisnè barons of the exchequer to become justices of assife 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 folicitor, general. The first king's counsel, under the degree of serjeant, was sir Francis Bacon, who was made so honoris Sec Vol. I. introd. $ 1.

printed in 1765, entitled, “observations I de LL. 6. 50.

« touching the antiquity and dignity of • Fortesc. ibid. 10 Rep. pref. Dug. “the degree of serjeant at law." dal. Orig. Yurid. To which may be 1 2 Inst. 214. added a tract by the late serjeant Wynne, Fortesc. 6. 50.

more than fix or eight attorneys in Norfolk and Suffolk quo tem-
pore, (it observes,) magna tranquillitas regnabat, but that the num-
ber had increased to twenty-four, to the great vexation and pre-
judice of these counties; it therefore enacts that for the future
there shall only be fix attorneys in Norfolk, fix in Suffolk, and
two in the city of Norwich. As it does not appear that this sta.
tute was ever repealed, it might be curious to inquire how it was
originally evaded.
For regulations respecting attorneys, see Burn, tit. Attorney.

caufa

caufa, 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 fir Francis North, afterwards lord keeper of the great seal to king Charles II*. These king's counsel answer in some measure to the advocates of the revenue, advocati fifci, among the Romans. For they must not be employed in any cause against the crown without fpecial licence(2); in which restriction they agree with the advocates of the fiscy: 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 in private suits between subject and subject”. A custom has [ 28 ] 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 a as are assigned in their respeca tive 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) See his letters. 236.

4. The king's attorney general. * See his life by Roger North. 37. s. The king's solicitor general. y Cod. 2. 9. 1.

6. The king's ferjeants. z Ibid. 2. 7. 13.

7. The king's counsel, with the • Pre-audience in the courts is rec queen's attorney and solicitor. koned of so much consequence, that it 8. Serjeants at law. may not be amiss to fubjoin a short cable 9. The recorder of London. of the precedence which usually obtains 10. Advocates of the civil law. among the practisers.

11. Barristers. 1. The king's premier serjeant, (f. In the court of exchequer two of the most

constituted by special patent.) experienced barriters, called the post. 2. The king's antient ferjeant, or man and the tub-man (from the places

the eldest among the king's fer in which they fit) have also a precedence jeants,

in motions. 3. The king's advocate general.

Seld. tit. hon. 1. 6.7.

(2) Hencé none of the king's counsel can publicly plead in court for a prisoner, or a defendant in a criminal prosecution, with. out a licence, which is never refused; but an expence of about gl. must be incorred in obtaining it.

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rank

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 clients, like the dependants upon the antient 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 (3); which are given, not as locatio vel conduElio, but as quiddamn 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“, whose honorarium was directed

by a decree of the senate not to exceed in any case ten thousand [ 29 ] festerces, or about 801. of English money' (4). And, in order

c Davis pref. 22. i Ch. Rep. 38. F. 1. 6. , Davis. 23.

f Tac. ann. 1.11.

(3) Upon the same principle a physician cannot maintain an action for his fees. 4 T. R. 317..

(4) The circumstances which led to this decree, as recorded by Tacitus, deserve to be mentioned. Samius, a Roman knight of distinction, having given Suilius a fce of three thousand guineas to undertake his defence, and finding that he was betrayed by his ad, vocate, ferro in domo ejus incubuit. In consequence of this the senate insisted upon enforcing the Cincian law, que cavetur antiquitùs, nequis ob causam orandam pecuniam donum.ve accipiar. "

Tacitus then recites the arguments of those who spoke against the payment of fees, and of those who supported the practice, and concludes with telling us, that Claudius Cæsar thinking that there was more reason, though less liberality, in the arguments of the latter, capiendis pecuniis poluit modum, usque ad dena sejiertia, quem egrells rapetuidarum tenerentur. 1 Ann. lib. 11.0.5.

But besides the acceptance of such immense fees, the perfidy of advocates had become a common trafic ; for Taçicus introduces

th:

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 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; al. though 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 ac. tion from the party injured 5. 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 lilence in the courts; a punishment still sometimes inflicted for gross misdemesnors in practice ". 8 Cro. Jac. go.

b Raym. 376.

the subject by observing, nec quidquam publicæ mercis tam venale fuit quam advocatorum perfidia. To the honour of our courts the corruption of judges and the treachery of counsel are crimes unheard of in this country.

VOL. III.

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