king's letters patent.' This is still the law in criminal cases. And an idiot cannot to this day appear by attorney, but in person", for he hath not discretion to enable him to appoint 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 shall admit the best plea in his behalf that any one present can suggest." But, as in the Roman law, "cum olim in usu fuisset, alterius nomine agi "non posse, sed, quia hoc non minimam incommoditatem habebat, "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. (3) No man can practise as an attorney 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 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: 'F. N. B. 25. m Ibid. 27. Bro. Abr. t. ideot. 1. • Inst. 4. tit. 10. (3) The judges will exercise their summary jurisdiction over the attorneys of the several courts, not merely in cases where they have been employed in the conduct of suits, or any matter purely professional, but "wherever the employment is so connected with their professional cha❝racter, as to afford a presumption that their character formed the ground "of their employment." Thus one attorney has been compelled to give up papers and deeds, which had been placed in his hands as steward for the owner of the estates, to which they refer; and another to pay over money, which he had received when employed to collect the effects of an intestate by the administrator, although he had never been employed by him to prosecute or defend any suits in law or equity. Hughes v. Mayre, 3 T. R. 275. In re Aitkin, 4 B. & A. 47. Luxmoore v. Lethbridge, 5 B. & A. 898. 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. Or advocates, or (as we generally call them) counsel, there are two species or degrees; barristers, and serjeants. The former are admitted after a considerable period of study, or at least standing, in the inns of court; and are in our [ 27 ] old books styled apprentices, apprenticii ad legem, 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, or servientes ad legem. How antient and honourable this state and degree is, with the form, splendour, and profits attending it, hath been so 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 probably to qualify the puisnè barons of the exchequer to become justices of assise, 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"; t a tract by the late serjeant Wynne, printed in 1765, entitled "Observations "touching the antiquity and dignity of "the degree of serjeant at law." t2 Inst. 214. u Fortesc. c. 50. w See his letters. 256. 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 king 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 fisc: 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 permit- [ 28 ] ted to be at all concerned in private suits between subject and subject. 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 a, 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) rank promiscuously with the king's counsel, and together with them sit 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 * See his life by Roger North. 37. Y Cod. 2. 9. 1. 2 Ibid. 2. 7. 13. a Pre-audience in the courts is reckoned of so much consequence, that it may not be amiss to subjoin a short table of the precedence which usually obtains among the practisers. 1. The king's premier serjeant (so 5. The king's solicitor-general. 7. The king's counsel, with the 9. The recorder of London. In the court of exchequer two of the Seld. Tit. of Hon. 1. 6, 7. (4) By royal mandate, dated Dec. 14. 54 G. 3., the king's attorney and solicitor-general have place and audience before the king's "two antientest serjeants," and, it may be presumed also in consequence, before the king's advocate-general. The common serjeant of London by courtesy has precedence next after the recorder. 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; 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 [29] 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 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 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 instructions if it be impertinent to the cause in hand, he is then liable to an action from the party injured (5). And counsel guilty of deceit or collusion are punishable by the statute Westm. 1. 3 Edw. I. c. 29. with imprisonment for a year and a day, and perpetual silence in the courts; a punishment still sometimes inflicted for gross misdemesnors in practice". (5) It is important that the grounds upon which this privilege of counsel, as it is called, rests, should not be misunderstood; in a late case they were well stated, and limited, by one of the learned judges of the king's bench. It is in fact the privilege of the client speaking by his counsel, and rests on the broad principle, that no action is maintainable against the party for words spoken bond fide, and without express malice, in a course of justice. The advocate so far from being entitled to say more than his client would have been allowed to say under the same circumstances, is laid by the presumption of his superior knowledge under greater restraint. To bring an observation within the rule of being spoken "in a course of justice," it should be relevant to the matter in issue; but the client's comparative ignorance of what is or is not so relevant, will often protect him, where the advocate would not stand excused. Hodgson v. Scarlett, 1 B. & A. 232. CHAPTER THE FOURTH. OF THE PUBLIC COURTS OF COMMON WE E 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 and special jurisdiction in some particular parts of it. Of the former there are four sorts 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 and equity. THE policy of our antient 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 the supreme courts, which were respectively constituted to correct the errors of the inferior [ 31 ] ones (1), 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 po (1) See post. p. 407. on the subject of appeals from inferior to superior courts. |