the medium by which he adminifters the laws, are derived from the power of the crown. For whether created by act of parliament, or letters patent, or fubfifting by prefcription, (the only methods by which any court of judicature & can exift) the king's confent in the two former is exprefsly, and in the latter impliedly, given. In all thefe courts the king is fuppofed in contemplation of law to be always prefent; but as that is in fact impoffible, he is there represented by his judges, whofe power is only an emanation of the royal prerogative, FOR the more speedy, universal, and impartial administration of justice between fubject and fubject, the law hath appointed a prodigious variety of courts, fome with a more limited, others with a more extenfive jurifdiction; fome conftituted to inquire only, others to hear and determine: fome to determine in the first inftance, others upon appeal and by way of review. All these in their turns will be taken notice of in their respective places: and I fhall therefore here only mention one diftinction, that runs throughout them all viz. that fome 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 fuch high and fupereminent authority, that their truth is not to be called in queftion. For it is a fettled rule and maxim that nothing fhall 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 itfelf; that is, upon bare inspection whether there be any fuch record or no; elfe there would be no end of difputes. But, if there appear any mistake of the clerk in making up fuch record, the court will direct him to amend it. All courts of record are the king's courts, in right of his crown and royal dignity, and therefore no other court hath hath authority to fine or imprifon; fo that the very erection [25] of a new jurisdiction with power of fine or imprisonment makes it instantly a court of records. 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-fubjects. 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 difputed, 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 procefs to arreft the perfon 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 fatisfaction for it; and the judex, or judicial power, which is to examine the truth of the fact, to determine the law arifing upon that fact, and, if any injury appears to have been done, to ascertain and by it's officers to apply the remedy. It is also usual in the fuperior courts to have attorneys, and advocates or counfel, as affiftants. An attorney at law answers to the procurator, or proctor, of the civilians and canonifts. And he is one who is put in the place, ftead, or turn of another, to manage his matters of law. Formerly every fuitor was obliged to appear in perfon, to profecute or defend his fuit, (according to the old Gothic conftitution *,) unless by fpecial licence under the king's letters patent. This is ftill the law in criminal cafes. And an idiot cannot to this day appear by attorney, but in perfon"; for he hath not difcretion to enable him to appoint a proper fubftitute: and upon his being brought before the court in fo defenceless a condition, the judges are bound to [ 26 ] take care of his interefts, and they shall admit the best plea in his behalf that any one prefent can fuggeft". But, as in the Roman law "cum olim in ufu fuisset, alterius nomine agi non poffe, fed, quia hoc non minimam incommoditatem habebat, "coeperunt homines per procuratores litigare," fo with us, upon the fame principle of convenience, it is now permitted in general, by divers antient ftatutes, whereof the first is ftatute Westm. 2. c. 10. that attorneys may be made to prosecute or defend any action in the abfence 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 fuperior 'courts of Westminster-hall; and are in all points officers of the refpective courts in which they are admitted: and, as they have many privileges on account of their attendance there, fo they are peculiarly subject to the cenfure and animadverfion of the judges. No man can practife as an attorney in any of those courts, but fuch as is admitted and fworn 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 alfo necessary to be admitted a folicitor therein : and by the statute 22 Geo. II. c. 46. no perfon shall act as an attorney at the court of quarter feffions, but fuch as has been regularly admitted in fome fuperior court of record. So early as the statute 4 Hen. IV. c. 18. it was enacted, that attorneys fhould be examined by the judges, and none admitted but fuch as were virtuous, learned, and fworn to do their duty. And many fubfequent ftatutes have laid them under farther regulations (1). n Bro. Abr. t. ideot. 1. o Inft. 4. tit. 10. P 3 Jac. I. c. 7. 12 Geo. I. c. 29. 2 Geo. II. c. 23. 22 Geo. II. c. 46. (1) The number of attorneys has much increased within the last three centuries; for an act of parliament paffed in the 33 Hen. VI. c. 7. tates, that not long before that time there had not been more Or advocates, or (as we generally call them) counsel, there are two fpecies or degrees; barristers, and ferjeants. The former are admitted after a confiderable period of study, or at least standing, in the inns of court; and are in our old [27] books ftiled 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 ferjeants, or fervientes ad legem. How antient and honourable this ftate and degree is, with the form, fplendor, and profits attending it, hath been fo fully difplayed by many learned writers', that it need not be here enlarged on. I fhall only obferve, that ferjeants at law are bound by a folemn 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 affife according to the exigence of the ftatute of 14 Edw. III. c. 16. From both thefe degrees fome are ufually felected to be his majesty's counfel learned in the law; the two principal of whom are called his attorney, and folicitor, general. The firft king's counfel, under the degree of ferjeant, was fir Francis Bacon, who was made fo honoris 9 See Vol. I. introd. § 1. r de LL. c. 50. s Fortefc. ibid. 10 Rep. pref. Dugdal. Orig. Jurid. To which may be added a tract by the late ferjeant Wynne, printed in 1765, entitled, "obfervations more than fix or eight attorneys in Norfolk and Suffolk quo tempore, (it obferves,) magna tranquillitas regnabat, but that the number had increased to twenty-four, to the great vexation and prejudice of thefe counties; it therefore enacts that for the future there fhall only be fix attorneys in Norfolk, fix in Suffolk, and two in the city of Norwich. As it does not appear that this ftatute was ever repealed, it might be curious to inquire how it was originally evaded. For regulations refpecting attorneys, fee Burn, tit. Attorney. caufa, caufa, without either patent or fee"; fo that the first of the modern order (who are now the fworn fervants of the crown, with a standing falary) feems to have been fir Francis North, afterwards lord keeper of the great feal to king Charles II*. Thefe king's counsel anfwer in fome 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 special licence (2); in which restriction they agree with the advocates of the fifc: but in the imperial law the prohi bition was carried ftill farther, and perhaps was more for the dignity of the fovereign; for, excepting fome peculiar caufes, the fifcal advocates were not permitted to be at all concerned in private fuits between fubject and subject. A cuftom has [ 28 ] of late years prevailed of granting letters patent of precedence to fuch barristers, as the crown thinks proper to honour with that mars of distinction: whereby they are entitled to fuch rank and pre-audience as are affigned in their respective patents: fometimes next after the king's attorney gene ral, but usually next after his majesty's counsel then being. Thefe (as well as the queen's attorney and folicitor general") a a Pre-audience in the courts is reckoned of fo much confequence, that it may not be amifs to fubjoin a short table of the precedence which usually obtains among the practisers. 1. The king's premier ferjeant, (fo conftituted by special patent.) 2. The king's antient ferjeant, or the eldest among the king's ferjeants. 3. The king's advocate general. 4. The king's attorney general. 7. The king's counfel, with the 9. The recorder of London. 10. Advocates of the civil law. In the court of exchequer two of the most b Seld. tit. hon. 1. 6. 7. (2) Hence none of the king's counsel can publicly plead in court for a prisoner, or a defendant in a criminal profecution, without a licence, which is never refufel; but an expence of about 97. must be incurred in obtaining it. rank |