action have recovered his antient estate, he shall not recover it by remitter. (1)

AND thus much for these extrajudicial remedies, as well for real as personal injuries, which are furnished or permitted by the law, where the parties are so peculiarly circumstanced, as not to make it eligible, or in some cases even possible, to apply for redress in the usual and ordinary methods to the courts of public justice.

(1) The statute of uses made some alteration in the antient law of remitter. From what Lord Hobart, in Duncombe v. Wingfield, p. 255, calls the violence of the letter of the statute, the party coming to a defeasible use must take the same estate as he had in the use, though he has both the bad freehold and the good right, without his own fault, and without a remedy by action. This, however, would only apply to the first taker of such estate his issue or next in remainder would take an estate at common law, and might be remitted; and even for the first taker, in some instances, methods are pointed out for avoiding this dilemma of the statute. See Co. Litt, 348. b, and Sanders on Uses and Trusts, vol. i. p.205. 4th edit,

CHAPTER THE THIRD.

OF COURTS IN GENERAL.

THE next, and principal object of our inquiries is the redress of injuries by suit in courts: wherein the act of the parties and the act of law co-operates; the act of the parties being necessary to set the law in motion, and the process of the law being in general the only instrument by which the parties are enabled to procure a certain and adequate redress.

AND here it will not be improper to observe, that although in the several cases of redress by the act of the parties mentioned in a former chapter, the law allows an extrajudicial remedy, yet that does not exclude the ordinary course of justice but it is only an additional weapon put into the hands of certain persons in particular instances, where natural equity or the peculiar circumstances of their situation require a more expeditious remedy, than the formal process of any court of judicature can furnish. Therefore, though I may defend myself, or relations, from external violence, I yet am afterwards entitled to an action of assault and battery: though I may retake my goods, if I have a fair and peaceable opportunity, this power of recaption does not debar me from my action of trover or detinue: I may either enter on the lands, on which I have a right of entry, or may demand possession by a real action: I may either abate a nuisance by my own authority, or call upon the law to do it for me: I may distrein for rent, or have an action of debt, at my own option if I do not distrein my neighbour's cattle damage- [23] feasant, I may compel him by action of trespass to make me a fair satisfaction; if a heriot, or a deodand, be withheld

a Ch. 1.

from me by fraud or force, I may recover it though I never seised it. And with regard to accords and arbitrations, these in their nature being merely an agreement or compromise, most indisputably suppose a previous right of obtaining redress some other way; which is given up by such agreement. But as to remedies by the mere operation of law, those are indeed given, because no remedy can be ministered by suit or action, without running into the palpable absurdity of a man's bringing an action against himself: the two cases wherein they happen being such, wherein the only positive legal remedy would be directed against the very person himself who seeks relief.

In all other cases it is a general and indisputable rule, that where there is a legal right, there is also a legal remedy, by suit or action at law, whenever that right is invaded. And in treating of these remedies by suit in courts, I shall pursue the following method: first, I shall consider the nature and several species of the courts of justice; and, secondly, I shall point out in which of these 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 redressed, in each respective species of courts.

FIRST then, of courts of justice. And herein we will consider, first, their nature and incidents in general; and then, the several species of them, erected and acknowledged by the laws of England.

b

A COURT is defined to be a place wherein justice is judicially administered. And, as by our excellent constitution the sole executive power of the laws is vested in the person of the king, it will follow that all courts of justice, which are [24] the medium by which he administers the laws, are derived from the power of the crown. For, whether created by act of parliament, or letters patent, or subsisting by prescription, (the only methods by which any courts of judicature d can exist,) the king's consent in the two former is expressly,

and in the latter impliedly, given. In all these courts the king is supposed in contemplation of law to be always present; but as that is in fact impossible, he is there represented by his judges, whose power is only an emanation of the royal prerogative.

For the more speedy, universal, and impartial administration of justice between subject and subject, the law hath appointed a prodigious variety of courts, some with a more limited, others with a more extensive jurisdiction; some constituted to inquire only, others to hear and determine; some to determine in the first instance, others upon appeal and by way of review. All these in their turns will be taken notice of in their respective places: and I shall therefore here only mention one distinction, that runs throughout them all ; viz. that some 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 testimony; which rolls are called the records of the court, and are of such high and super-eminent authority, that their truth is not to be called in question. For it is a settled rule and maxim that nothing shall be averred against a record, nor shall any plea, or even proof, be admitted to the contrary. And if the existence of a record be denied, it shall be tried by nothing but itself: that is, upon bare inspection' whether there be any such record or no; else there would be no end of disputes. But, if there appear any mistake of the clerk in making up such record, the court will direct him to amend it. (1) All courts of record are the king's courts, in right of his crown and royal dignity, and therefore no other court hath authority to fine or imprison; so that the very erection of a new jurisdiction with the power of fine or imprisonment makes it instantly a court of record. (2) A court [ 25 ]

e Co. Litt. 260.

f Finch. L. 231.

Salk. 200. 12 Mod. 388.

(1) Within what time the court will give this direction, and under what circumstances and provisions, see post, 407.

(2) The converse of the rule does not hold, for every court of record has not necessarily a general power of fine and imprisonment, as is the case with the court of commissioners of sewers, which is undoubtedly a

court

not of record is the court of a private man; whom the law will not intrust with any discretionary power over the fortune or liberty of his fellow-subjects. Such are the courts-baron incident to every manor, and other inferior jurisdictions: where the proceedings are not enrolled or recorded; but as well their existence as the truth of the matters therein contained shall, if disputed, be tried and determined by a jury. These courts can hold no plea of matters cognizable by the common law, unless under the value of 40s. nor of any forcible injury whatsoever, not having any process to arrest the person of the defendant. 1

IN every court there must be at least three constituent parts, the actor, reus, and judex: the actor, or plaintiff, who complains of an injury done; the reus, or defendant, who is called upon to make satisfaction for it; and the judex, or judicial power, which is to examine the truth of the fact, to determine the law arising upon that fact, and, if any injury appears to have been done, to ascertain, and by its officers to apply the remedy. It is also usual in the superior courts to have attorneys, and advocates or counsel, as assistants.

AN attorney at law answers to the procurator, or proctor, of the civilians and canonists. And he is one who is put in the place, stead, or turn of another, to manage his matters of law. Formerly every suitor was obliged to appear in person, to prosecute or defend his suit, (according to the old Gothic constitution*,) unless by special licence under the

h 2 Inst. 311.

Pope Boniface VIII. in 6 Decretal. 1. 3. t. 16. § 3. speaks of "procurato

"ribus, qui in aliquibus partibus attor"nati nuncupantur."

* Steirnhook de jure Goth. 1.1. c.6.

court of record, and yet cannot imprison a party (no officer of the court) for a bare disobedience of its orders. 1 Sid. 145. The definition of a court not of record seems to be inadequate, for many courts, which are courts of the king, as king, are not courts of record, as the court of equity in chancery, the admiralty courts, &c. It would seem better to define it, as the converse of a court of record, as not enrolling its proceed ings in parchment for a perpetual memorial, nor having a general authority to fine and imprison