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 801. of English money (ƒ) (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 misdemeanors 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 considered, that if a counsel disclosed his clients ease 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. (1T. 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. (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, ferio in domo ejus incuburt. In consequence of this the senate insisted upon enforcing the Cincian law, quá cavetur antiquitus, aequis 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 (g) Cro. Jac. 90. (h) 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 pecuniá possit. Cic. pro Cæcina. (13) See the date 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 ex-. clusive 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, In New-York the right of counsel and of physicians to sue for their fees is fully recog nized. 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, 22): 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 validity 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 other wise 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 be fore 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 country, 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 general 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 tnal of crimes. (See 4th book as to the limi- of the state. tations of their power). The surrogate of each county is also constituted a court, and has cognizance of all matters concerning the estates of deceased per sons. Courts Martial are also appointed annually in the manner directed by law for the militia There is no Ecclesiastical Court in the state; the powers of such courts, so far as they relate to the estates of deceased persons, are executed by the surrogate: so far as they concern divorces, are executed by the Court of Chancery. (See the Revised Statutes of New-York). CHAPTER IV. OF THE PUBLIC COURTS OF COMMON LAW 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 called a hundred. Ten hundreds constituted the largest division, consisting (a) Mad. Un. Hist. xxxviii. 469. 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 them heads over the people, rulers of thousands, rulers of hundreds, rulers of fifties, and rulers of tens; and they judged the people at all seasons; the hard causes they brought unto Moses; but every small matter they judged themselves (c)." These inferior courts, at least the name and form of them, still continue in our legal constitution but as the superior courts of record have in practice obtained a concurrent original jurisdiction with these; and as there is, besides, a power of removing plaints or actions thither from all the inferior jurisdic tions; upon these accounts (amongst others) it has happened that [*32] *these petty tribunals have fallen into decay, and almost into ob livion; whether for the better or the worse, may be matter of some speculation, when we consider on the one hand the increase of expense and delay, and on the other the more able and impartial decision, that follow from this change of jurisdiction. The order I shall observe in discoursing on these several courts, constituted for the redress of civil injuries (for with those of a jurisdiction merely criminal I shall not at present concern myself), will be by beginning with the lowest, and those whose jurisdiction, though public and generally dispersed throughout the kingdom, is yet (with regard to each particular court) confined to very narrow limits; and so ascending gradually to those of the most extensive and transcendent power. I. The lowest, and at the same time the most expeditious, court of justice known to the law of England, is the court of piepoudre, curia pedis' pulverizati; so called from the dusty feet of the suitors; or, according to sir Edward Coke (d), because justice is there done as speedily as dust can fall from the foot ;-upon the same principle that justice among the Jews was administered in the gate of the city (e), that the proceedings might be the more speedy, as well as public. But the etymology given us by a learned modern writer (f) is much more ingenious and satisfactory; it being derived, according to him, from pied puldreaux, (a pedlar, in old French), and therefore signifying the court of such petty chapmen as resort to fairs or markets. It is a court of record, incident to every fair and market; of which the steward of him, who owns or has the toll of the market, is the judge; and its jurisdiction extends to administer justice for all commercial injuries done in that very fair or market, and not in any preceding one. So that the injury must be done, complained of, heard, and determined, within the compass of one and the same day, unless [*33] the fair continues longer. The court hath cognizance of all matters of contract that can possibly arise within the precinct of that fair or market; and the plaintiff must make oath that the cause of an action arose there (g). From this court a writ of error lies, in the nature of an appeal, to the courts at Westminster (h); which are now also bound by the statute 19 Geo. III. c. 70, to issue writs of execution, in aid of its process, after judgment, where the person or effects of the defendant are not within the limits of this inferior jurisdiction; which may possibly oc (b) Mod. Un. Hist. xxxix. 14. (c) Exod. c. 18. (d) 4 Inst. 272. (e) Ruth, c. 4. (f) Barrington's observat. on the stat. 337. (g) Stat. 17 Edw. IV. c. 2. (h) Cro. Eliz. 773. casion the revival of the practice and proceedings in these courts, which are now in a manner forgotten. The reason of their original institution seems to have been, to do justice expeditiously among the variety of persons that resort from distant places to a fair or market; since it is probable that no other inferior court might be able to serve its process, or execute its judgments, on both, or perhaps either of the parties; and therefore unless this court had been erected, the complainant must necessarily have resorted, even in the first instance, to some superior judicature. : II. The court-baron is a court incident to every manor in the kingdom, to be holden by the steward within the said manor. This court-baron is of two natures (i) the one is a customary court, of which we formerly spoke (k), appertaining entirely to the copyholders, in which their estates are transferred by surrender and admittance, and other matters transacted relative to their tenures only. The other, of which we now speak, is a court of common law, and it is the court of the barons, by which name the freeholders were sometimes anciently called (1): for that it is held before the freeholders who owe suit and service to the manor, the steward being rather the registrar than the judge. These courts, though in their nature distinct, are frequently confounded together. The court we are now considering, viz. the freeholders' court, was composed of the lord's tenants, who were the pares of each other, and were bound by their feodal tenure to assist their lord in the dispensation of domestic justice. This was formerly held every three weeks; and its most important business is to determine, by writ of right, all controversies relating to the right of lands within the manor. It may also hold plea of any personal actions, of debt, trespass on the case, or the like, where the debt or damages do not amount to forty shillings (1); which is the same sum, or [*34 ] three marks, that bounded the jurisdiction of the ancient Gothic courts in their lowest instance, or fierding-courts, so called, because four were instituted within every superior district or hundred (m). But the proceedings on a writ of right may be removed into the county-court by a precept from the sheriff called a tolt (n), “quia tollit atque eximit causam e curia baronum (0).” And the proceedings in all other actions may be removed into the superior courts by the king's writs of pone (p), or accedas ad curiam, according to the nature of the suit (q). After judgment given, a writ also of false judgment (r) lies to the courts at Westminster to rehear and review the cause, and not a writ of error; for this is not a court of record and therefore in some of these writs of removal, the first direction given is to cause the plaint to be recorded, recordari facias loquelam. III. A hundred-court is only a larger court-baron, being held for all the inhabitants of a particular hundred instead of a manor. The free suitors are here also the judges, and the steward the registrar, as in the case of a court-baron. It is likewise no court of record; resembling the former in (1) All the freeholders of the king were called barons; but the Editor is not aware that it appears from any authority that this word was ever applied to those who held freeholds of a subject. See an account of the ancient barons, ante 1 book, 399. n. 5. It seems to be VOL. II. (o) 3 Rep. pref. (p) See Append. No. I. ◊ 3. (q) F. N. B. 4. 70. Finch. L. 444, 445. the more obvious explanation of the courtbaron, that it was the court of the baron or lord of the manor, to which his freeholders owed suit and service. In like manner, we say the king's court, and the sheriff's court, (4) See Hov. n. (4) at the end of the Vol. B. III. |