Sivut kuvina

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.

[ocr errors]


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 sailor was obliged to appear in person, to prosecute or defend his suit (according to the old Gothic constitution h), unless by special licence, under the king's letters patent. 7) This is still the law in criminal cases." And an idiot cannot to this day appear by attorney, but in person, (m) for he hath not discretion to enable him to appoint a proper substitute : [ 26 ] and upon his being brought before the court in so defenceless a condition, the judges are bound to take care of his interests, and they shall admit the best plea in his behalf that any one present can suggest. (n) But, as in the Roman law, "cum olim in usu fuisset, alterius nomine agi non posse, sed, quia hoc non minimam incommoditatem habebat, coeperunt ho"mines per procuratores litigare," (o) so with us, upon the same principle of convenience, it is now permitted in general, by divers ancient 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 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

i Pope Boniface VIII. in 6 Decretal. 1, 3. t. 16. § 3. speaks of " procuratoribus, qui in aliquibus partibus attornati nuncupantur " k Stiernhook de jure Goth. 1. 1. c. 6. 1 F. N. B. 25. in lbid. 27. n Bro. Abr. t ideot. 1.

o Inst. 4. tit. 10.

(6) For the law relative to attornies in general, see Tidd's Prac. 8 d. 54 to 93. Com. Dig. Attorney. It would be impracticable to state the whole details on this subject in a note.

(7) This is not universally so for in prosecutions and informations for misdemeanors, especially in the court of king's bench, a defendant may, and usually does, appear and plead by his attorney or clerk in court. 1 Chitty's Crim. Law. But an attorney has no right to be present during the investigation of a charge of felony before a magistrate against his client. 3 B. & A. 432. and see 1 B. & C. 37. Chitty. (8) For these privileges, see Tidd's Prac 8 ed. 75 to 79 They are allowed not so much for the benefit of the attornies as their clients. 2 Wils. 44. 4 Bar 2113. When he may waive his privilege. Tidd, 8 ed 78. As to an attorney's disabilities and restrictions, see id. 79, 80. (9) And the court, of which the party is an attorney, has a summary jurisdiction over him for his acts in that character. And in some instances it will order him to pay costs to his client for neglect. Tidd's Prac. 81. Say. Rep. 50. 172. 4 Moore, 171. 7 Moore, 365.; or to the opposite party for vexatious and improper conduct. 2 Burr. 054 4 T. R. 371. b. 3 Taunt 492 1 Chitty's R. 44. 80. 5 B. & A. 533. 1 D. & R. 142. S. C. and see instances Tidd, 8 ed. 81. As to when the court will compel him to deliver up writings, Tidd, 8 ed. 82. It is not usual, however, for the court to interfere in a summary way for a mere breach of promise, where there is nothing criminal, 2 Wils. 371. 2 Moore, 665 1 Bingh. 102 105 or on account of negligence or unskilfulness, 4 Burr. 2060 2 Bla Rep. 780. Chitty's R. 651., unless it be very gross, Say. Rep. 50 169.; or for the misconduct of an attorney, independently of his profession but see 4 B. & A. 47. 2 Chitty's R. 68. 1 Bing. 91, 7 Moore, 424. 5 B. & A. 898. and note 10. page 27. post.

[ocr errors]


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 (p) have laid them under farther regulations."

Of 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 courts; (q) and are in our old books styled apprentices, apprenticii ad legem, [27] 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, (r) they might be called to the state and degree of serjeants, or servientes ad legem." How ancient and honourable this state and degree is, with the form, splendour, and profits attending it, hath been so fully displayed by many learned writers, (s) that it need not be here enlarged on. I shall only observe, that serjeants at law are bound by a solemn oath (t) to do their duty to their clients; and that by custom (u) 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 puisné 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; (w) so that the first of the modern order (who are now

p 3 Jac. I. c. 7. 12 Geo. 1. c. 29. 2 Geo. II. c. 23. 22 Geo. II. c. 46. 23 Geo. II. c. 26.
q See Book I. introd. §.
r De LL. c. 50.

8 Fortesc. ibid. 10 Rep. pref. Dudg Orig. Jurid. To which may be added 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.

(10) By the 2 Geo. II. c. 23. s. 5. 7. (made perpetual by 30 Geo. II. c. 19. s. 75.) no person shall act as an attorney or solicitor unless he shall have been bound by contract in writing to serve as clerk to an attorney for five years, and shall have continued in such service for that term: serving part of the term with one master and part with another is not sufficient. 7 T. R. 456. But under special circumstances attornies have been admitted, though they have not served the whole term of five years under the original articles. 2 Bla. Rep. 734. 957. 1 D. & R. 14. By the 49 Geo. III. c. 28. s. 1. persons having served a clerkship of five years to some of the clerks of the king's coroner and attorney, in the court of king's bench, may be admitted attornies in the king's bench, and practise in the name, and with the consent, in writing, of some sworn attorney of such court. By the 1 & 2 Geo. IV c 48. any person who has taken a degree at Oxford, Cambridge, or Dublin, may act as an attorney or solicitor after having served a clerkship of three years; and by the same act, s. 2. persons bound for five years, and serving part of that time, not exceeding one year, with a barrister or special pleader, may be admitted on applying to a judge or other sufficient authority. By section 3. nothing in the 41 Geo. III. c. 90. is to extend to the registrars or solicitors of the universities, &c. By sect. 4. the act is only to extend to bachelors of arts, who have taken their degrees within the periods therein mentioned, &c. and by 3 Geo. IV. c. 16. the above act is not to extend to persons taking the degree of bachelor of law, unless such persons shall have taken such degree within eight years after matriculation.

An attorney is bound to use care, skill, and integrity, and if he be not deficient in any of these essential requisites, he is not responsible for any error or mistake arising in the exercise of his profession. 4 Burr. 2061. and see 4 B & A. 202. If he be deficient, and a loss thereby arises to his client, he is liable to an action in damages, 2 Wils. 325. 1 Bing. 347.; aud in some cases, as we have above seen, the court of which he is an attorney will afford a summary remedy. Ante, note 8. Chitty. (11) The 6 Geo. IV. c. 95. enables such persons as his majesty may be pleased to call to the degree of a serjeant at law, to take upon themselves that office in vacation.

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. (x) 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 license :13 in which restriction they agree with the advocates of the fisc: (y) 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. (z) A custom has of late years [ 28 ] 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) (b) ranks 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 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, (c) 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: (d) 15 as is also laid down with regard to advocates in the civil

y Cod. 2. 9. 1.


x See his Life by Roger North. 37.

z 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 constituted by special patent). (13)

2. The king's ancient serjeant, or the eldest among the king's serjeants. (13)

3. The king's advocate-general.

4. The king's attorney-general. (18)

5. The king's solicitor-general. (13)

6. The king's serjeants.

7. The king's counsel, with the queen's attorney and solicitor.

8. Serjeants at law.

9. The recorder of London.

10. Advocates of the civil law.

11. Barristers.

In the court of exchequer two of the most experienced barristers, called the post-man and the tub-man (from the places in which they sit) have also a precedence in motions.

c Davis. pref. 22. 1 Ch. Rep. 38.

b Seld. tit. hon, 1. 6, 7.
d Davis, 23.

(12) Hence none of the king's counsel can publicly plead in court for a prisoner, or a defendant in a criminal prosecution, without a licence, which is never refused; but an expense of about nine pounds must be incurred in obtaining it. Christian.

(13) By the king's mandate, 14th Dec. 1811, the king's attorney and solicitor-general are now to have place and audience before the king's premier serjeant.

(14) That is, in bank; for at trials at nisi prius in C. P. a barrister, who is not a serjeant, may

even lead a cause.

(15) Upon the same principle a physician cannot maintain an action for his fees. 4 Term Rep. 317. It has also 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's R. 122. Formerly it was considered, that if a counsel disclosed his client's case or neglected to attend to it, he was liable to be sued. See Vin. Ab. Actions of Assumpsit, P. But in more modern times it has been considered, that no such action is sustainable. Peake's R. 96. The statute Westm. the 1st, 3 Edw. I. ch. 29, which lord Coke says was in affirmance of the common law, enacts, that if a serjeant at law or other VOL. II.



law, (e) whose honorarium was directed by a decree of the senate not to exceed in any case ten thousand sesterces, or about 801. of English [29] money. (f) And, in order to encurage 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 in 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. (g)" 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 still sometimes inflicted for gross misdemesnors in practice. (h)

e Ff. 11. 6. 1.

f Tac, ann. L. 11.

g Cro. Jac. 90.

h Sir T. Raym. $76.

person do, or counsels to do, any manner of deceit in the court of the king, to deceive the court or the parties concerned, and be convicted thereof, he shall be imprisoned for a year and a day, and not be heard again; and it was held, that a serjeant wilfully pleading a false plea to delay justice, was punishable under this statute. 2 Inst. 215. Bac. Ab. Pleas and Pleading, G. 4. And lord Hale in Fortescue v. Hall, 1 Vent. 213., said, "he did exceedingly blame the bad practice that is among counsel in advising such pleas; and said it was within the penalty of Westm. 1. serjeants, compters, &c. and said, though counsel were obliged to be faithful to their clients, yet not to manage their causes in such a manner as justice should be delayed or truth suppressed; to promote which was as much the duty of their calling as it was the office of the judges, though not in so eminent a degree." So it was held, that if a barrister encourage a man to bring false actions through malice, and for the purposes of oppression, he may be indicted as a common barrator, 3 Mod. 97.; and where a barrister has suffered an infamous punishment on a conviction, as pillory, he may, at the instance of the gentlemen of the bar, be disrobed or disbarred. Sir T. Raym. 377. And more recently, where a barrister, who was interested in the subject matter in dispute, declared he had purposely drawn the declaration in an intricate manner in the hope to catch the defendants, and thus occasioned the paper book to be near two thousand sheets in length, when the whole was afterwards reduced to a quarter of a sheet of paper, the court severely censured him. 1 Bla. R. 270. and see Rules and Orders in Chancery, 1 Ch. Rep. 194. Cary's Rep. 27. Mitford's Plead. 39. and see Cowp. 665, 727.

On the other hand, serjeants and barristers are entitled to certain privileges. Each is an esquire, and his eldest son is qualified to kill game. (1 T. R. 44.) They are entitled when sued separately to have the venue laid in any action against them in Middlesex, 1 Stra. 610.; and are privileged from arrest and from being taken in execution whilst they are on their proper circuit, and when they are attending the sittings at nisi prius. 1 Hen. Bla. 636.

(16) 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 fee of three thousand guineas to undertake his defence, and finding that he was betrayed by his advocate, ferro in domo ejus incubuit. In consequence of this the senate insisted upon enforcing the Cincian law, quâ cavetur antiquitùs, nequis ob causam orandam pecuniam donumve accipiat.

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 posuit modum, usque ad dena sestertia, quem egressi repetundarum tenerentur. 1 Ann. lib. 11. c. 5.

But besides the acceptance of such immense fees, the perfidy of advocates had become a com mon traffic; for Tacitus introduces the subject by observing, nec quidquam publica 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. Quid enim et jus civile ? Quod neque inflecti gratiâ, neque perfringi potentiâ, neque adulterari pecuniâ possit. Cic. pro Cæcina. Note from Mr. Christian's edit.

(17) See the late important case establishing the correctness of this position. Holt, C. N. P. 621. 1 B. & A. 232. `1 Saund Rep. 130.



We are next to consider the several species and distinctions of the 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 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 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 [ 31 ] 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 surperior 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 esta blished in the Jewish requblic 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. (a) Peru, according to Garcilasso de Vega, (an historian descended from the ancient Incas of that country,) was divid. ed 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. (b) 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

a Mod. Un. Hist. xxxviii. 469.

(1) See in general, Bac. Ab. Coarts, A.

b Ibid. xxxix. 14.

« EdellinenJatka »