law, was allowed, is somewhat similar to that given in the preceding arti-" cle; because otherwise he who hath right would be deprived of all remedy. For as he himself is the person in possession of the freehold, there is no other person against whom he can bring an action, to establish his prior right (4). And for this cause the law doth adjudge him in by remitter; that is, in such plight as if he had lawfully recovered the same land by suit. For, as lord Bacon observes (i), the benignity of the law is such, as when, to preserve the principles and grounds of law, it depriveth a man of his remedy without his own fault, it will rather put him in a better degree and condition than in a worse. Nam quod remedio destituitur, ipsa [*21] re valet, si culpa absit. But there shall be no *remitter to a right, for which the party has no remedy by action (k): as if the issue in tail be barred by the fine or warranty2 of his ancestor, and the freehold is afterwards cast upon him ; he shall not be remitted to his estate tail (7): for the operation of the remitter is exactly the same, after the union of the two rights, as that of a real action would have been before it. As therefore the issue in tail could not by any action have recovered his ancient estate, he shall not recover it by remitter.

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.

CHAPTER III.

OF COURTS IN GENERAL (1).

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 cooperate; 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 (a), the law allows an extrajudical 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 required 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 de

(i) Elem. c. 9.

(k) Co. Litt. 340.

(4) See post 190. for the advantages of this law of remitter.

(1) As to courts in general, and the several

(7) Moor. 115. 1 Ann. 186.
(a) Ch. 1.

courts, see Com. Dig. Courts; Bac. Ab. Courts; Vin. Ab. Courts.

(2) See Hov. n. (2) at the end of the Vol. B. IIL

tinue: 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 distrain for rent, or have an action of debt, at my own *option: if [*23] I do not distrain my neighbour's cattle damage-feasant, I may compel him by action of trespass to make me a fair satisfaction; if a heriot, or a deodand, be withheld from me by fraud or force, I may recover it though I never seized 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 possible 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 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.

A court is defined to be a place wherein justice is judicially administered (b). 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 the medium by which he admi- [*24] nisters the laws, are derived from the power of the crown (c). For, whether created by act of parliament, or letters patent, or subsisting by prescription (the only methods by which any court 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 (2) for a perpetual memorial and testi

(b) Co. Litt. 58.

(c) See book I. ch. 27

(d) Co. Litt. 260.

(2) In New-York they may be on paper or parchment. 2 R. S. 275, § 9.
6

VOL. II.

mony: 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 (e) (3). 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 (4). But, if there appear any mistake of the clerk in making up such record, the court will direct him to amend it.3 All courts of record are the king's courts, in right

of his crown and royal dignity (ƒ), and therefore no other court [*25] 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 (g) (5). 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 courtsbaron 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 (h).

e;

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 judical 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 (i). 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) (k), unless by special license under the king's letters patent (1). This is still the law in criminal cases (6). And an

(e) Co. Litt. 260.

(f) Finch. L. 231.

(g) Salk. 200. 12 Mod. 388.

(h) 2 Inst. 311.

(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.

record, is triable only by a jury. 5 East, 473.

(5) But every court of record has not necessarily a power to fine and imprison. 1 Sid. 145. There are several of the king's courts not of record, as the court of equity in chancery, the admiralty courts, &c. 4 Inst. 84. 37 H. 6. 14. b. Yelv. 227. Com. Dig. tit. Chancery, C. 2.

(3) This rule is subject to some exceptions; for in the case of a judgment signed on a warrant of attorney given upon an unlawful consideration, or obtained by fraud, upon an affidavit thereof, the court will afford relief upon a summary application. Doug. 196. Cowp. 727. 1 Hen. Bla. 75. And equity will relieve against a judgment obtained by fraud or collusion. 1 Anst. 8. 3 Ves. & B. 42. And third persons who have been defrauded by a collusive judgment may shew such fraud, so as to prevent themselves from being prejudiced by it. 2 Marsh. 392. 7 Taunt, 97. 13 Eliz. c. 5. (4) But an Irish judgment, though one of The court of chancery in New-York is now a court of record. 2 R. S. 276, § 1. & id. 168, 1.

(6) 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

(3) See Hov. n. (3) at the end of the Vol. B. III.

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. 3. 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 of 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 practice 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 practice 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 (q); 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

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 license (8); in which restriction they agree with the advocates of the fisc (y): but in the imperial law the prohibition was carried still further, 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 barrister, 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) (6) 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 ser-. jeants 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