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idiot cannot to this day appear by attorney, but in person (m), for he hath not discretion to enable him to appoint *a proper substi- [ *26 ] tute: 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 homines 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 (7). 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 : 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 Henry 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 court (p); and are in our old books *styled apprentices, appren- [*27] ticii 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 (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

(m) F. N. B. 27.
(n) Bro. Abr. t. ideot, I.

(o) Inst. 4, tit. 10.

(s) Fortesc. ibid. 10 Rep. pref. Dugd. Orig. Jurid. To which may be added a tract by the late serjeant Wynne, printed in 1765, entitled "Obser

(p) 3 Jac. I. c. 7. 12 Geo. I. c. 29. 2 Geo. II. c. vations touching the antiquity and dignity of the 23. 22 Geo. II. c. 46. 23 Geo. II. c. 26.

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degree of serjeant at law."
(t) 2 Inst. 214.

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; and in some cases, as we have above seen, the court of which he is an attorney will afford a summary remedy.

* As to law of New-York, see 4 book, p. 318, note 2.

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 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 (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 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 licence (8); 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 ad[*28] vocates were not permitted to be at all concerned *in private

suits between subject and subject (z). 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) (b) 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) (10) 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

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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) (11): as is also laid down with regard to advocates in the civil law (e), whose honorarium was directed by a decree of the senate not to exceed in any case ten thousand sesterces, *or about 80l. of English money (f) (12). And, in order [*29] 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 (g) (13). 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) (14).

(d) Davis, 23. (e) Ff. 11. 6. 1.

(f) Tac. ann. l. 11.

(11) 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 con sidered, 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.

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 priviledged 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.

(12) 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 conse- se quence of this the senate insisted upon enforeing 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

* In New-York the right of counsel and of nized.

(g) Cro. Jac. 90.
(4) Sir T. Raym. 376.

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 common traffic; for Tacitus introduces 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. Quid enim est jus civile? Quod neque inflecti gratiâ, neque perfringi potentia, neque adulterari pecuniâ possit. Cic. pro Cæcina.

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

(14) The courts of the U. S. are the Supreme, the Circuit, and the District Courts; their jurisdiction is limited by the constitution, Art. 3, Section 22. But Congress has not vested in them all the power that it might under the constitution, and they have only such jurisdiction as Congress may choose to confer. (Id. § 2).

By the law of 1789, ch. 20, (1 Story's laws U. S. 58, § 13), the Supreme Court has exclusive jurisdiction of all controversies of a civil nature where a state is a party, except between a state and its citizens, and except also between a state and citizens of other states or aliens; in which latter case it has original, but not exclusive, jurisdiction: it has also exclusive jurisdiction of all suits against ambassadors or other public ministers and their domestics; and original, but not exclusive, physicians to sue for their fees is fully recog

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jurisdiction of suits by ambassadors or other public ministers, or in which a consul or a vice-consul is a party. It has also appellate jurisdiction from the Circuit Courts, in civil actions brought there originally, or removed there from the state courts, or by appeal from a district court, when the matter in dispute exceeds 2,000 dollars: (id. 60.622): and from the highest state courts when there has been drawn in question the validity of a treaty or a statute of, or an authority exercised, under the U. S. and the decision below has been against its validity: or there has been drawn in question the validity of a statute of, or an authority exercised, under any state on the ground of their being repugnant to the constitution, treaties, or laws of the U. S. and the decision below has been in favour of the va lidity of such state law or authority: or where the decision below has been against a right claimed under any clause of the constitution of the U. S. or of a treaty, or statute of, or commission held under, the U.S. (Id. p. 61, § 25).

This is the highest court in the country, and may be considered the highest and most august in the world, for the controversies even of states may be determined by it, and it may declare unconstitutional, and therefore void, the acts of those states, and even the acts of Congress.

The Circuit Court is next in rank: it has original jurisdiction, concurrently with the state courts, of all civil suits where the matter in dispute exceeds 500 dollars, and the U. S. are plaintiffs, or an alien is a party, or the suit is between a citizen of the state where the suit is brought and a citizen of another state. It has exclusive jurisdiction of all crimes and offences cognizable under the authority of the U. S. except when specially otherwise provided; and concurrent jurisdiction with the district courts of the crimes and offences cognizable therein. (Id. 57. § 11). It has also appellate jurisdiction from the district court. (Id).

The District Court has jurisdiction, exclusively of the state courts, of all crimes and of fences cognizable under the authority of the U. S. committed within its district or upon the high seas, where no other punishment than whipping not exceeding thirty stripes, a fine not exceeding 100 dollars, or a term of imprisonment not exceeding 6 months, is to be inflicted and also has exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction, including all seizures under the laws of import, navigation, or trade of the U. S., where the seizures are made on waters navigable from the sea by vessels of ten or more tons burthen within its district, as also upon the high seas; saving to the suitors in all cases the common law remedy where it is competent. It has also original jurisdiction of all seizures on land or other waters than those above mentioned, made under the laws of the U. S., and of all suits for penalties and forfeitures incurred under those laws. It has also cognizance, concurrently with the state courts and the circuit courts, of all cases where an alien sues for a tort only in violation of the law of nations or a treaty of the U. S.: also

of all suits at common law where the U. S. sue, and the matter in dispute amounts to 100 dollars. It also has jurisdiction, exclusively of the state courts, of all suits against consuls or vice-consuls, except for offences above the description above mentioned. It also has a concurrent jurisdiction in suits of common law, where the U. S. or any officer thereof, under any act of Congress, sue, although the amount is under 100 dollars. (Id. 1531, § 4). In addition to these there are also Courts Martial, and Naval courts, for the army and

navy.

In the state of New-York the highest court is the Court of Errors, consisting of the senate, the chancellor, and the judges of the Supreme Court: it is also the court for the trial of impeachments. In no case, except the trial of impeachments, has it original jurisdiction. A writ of error from the decisions of the Supreme Court lies to this court, and then the justices of that court merely assign the reasons of their decision without voting. An appeal lies to it from the decision of the chancellor, and then he merely assigns his reasons for his decision without voting. No other matters come before this court.

The chancellor has the same equity powers as the chancellor in England: appeals also lie to him from the decisions of the vice-chancellors, and in some cases from the decisions of surrogates.

The Supreme Court has jurisdiction in all common law cases. It is aided in practice, almost entirely relieved from the trial of causes, as the circuit judges try issues of fact in all civil common law causes; and with two of the judges of the county courts, are the judges in the court of Oyer and Terminer. The circuit judges are also the vice-chancellors of their own circuit, and appeals lie to them in some cases from the surrogates of their counties.

In the first circuit, including the city of New-York, the offices of vice-chancellor and of circuit judge are distinct.

Courts of Common Pleas are appointed for each county, and have cognizance of all local actions within their county, and of all transitory actions and of appeals from the justices' courts: except in the city of New-York, where the decisions of the justices' courts are reviewed by the Superior Court for the city on a certiorari. In each town there are justices' courts, having jurisdiction generally of personal actions when the amount in controversy does not exceed 50 dollars, and the title to lands does not come in question. There is also in the city of New-York the Superior Court, having the same powers generally as the Common Pleas courts, with this addition: that however large the amount in controversy may be, causes cannot be removed from it to the Supreme Court before judgment.

In the city of New-York is also the Marine Court, having the same jurisdiction as the justices' courts: also jurisdiction in such cases to the amount of 100 dollars, and in all controversies between sailors and the masters of ships.

In addition to these courts, are the general and special sessions in each county, for the

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OF THE Public coURTS OF COMMON LAW
AND EQUITY.

We 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 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 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 [*31} 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 policy; being equally similar to that which prevailed in Mexico and Peru before they were discovered by the Spaniards, and to that which was established in the Jewish republic 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 divided 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 ealled a hundred. Ten hundreds constituted the largest division, consisting

(a) Mod. Un. Hist. xxxviii. 469.

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