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 practice as an attor ney in any of those courts, but such as is admitted, and sworn an attorney of that particular court: an attorney of a 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 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; barrister, and serjeants. The former are admitted after a considerable period of study, or at least standing, in the inns of court; ) and are in our old books *styled [*27] apprentices, apprentici ad legem (apprentices to the law), 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, () they might be called to the state and degree of serjeants, or servientes ad legem (serjeants at law). How ancient and honorable 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 ad (p) 3 Jac. I, c. 7. 12 Geo. I, c. 29. (q) See Book I, introduc. § 1. 2 Geo. II, c. 23. 22 Geo. II, c. 46. 23 Geo. II, c. 26. Dudg. Orig. Jurid. To which may be added a tract by the late (s) Fortesc. ibid. 10 Rep. pref. Serjeant Wynne, printed in 1765, entitled degree of serjeant at law." (1) 2 Inst. 214. (u) Fortesc. c. 50. 1 Upon the general power of the court to deal summarily with attorneys, see In re Austin et al., 5 Rawle, 202; S. C., 28 Am. Dec. 657; Matter of Mills, 1 Mich. 392; In re Percy, 36 N. Y. 651; Matter of Blake, 3 El. and El. 34; Walker v. State, 4 W. Va. 749; Beene v. State, 22 Ark. 149; Dickens' Case, 67 Penn. St. 169; Bradley v. Fisher, 13 Wall, 335. A person appearing as attorney is presumed to have due authority. Lagow v. Patterson, 1 Blackf. 327; Osborn v. Bank of U. S., 9 Wheat. 738; Hamilton v. Wright, 37 N. Y. 502. Having been connected on one side he will not be permitted to engage on the other. Chol mondeley v. Clinton, 19 Vesey, 261; Wilson v. State, 16 Ind. 392; Goulden v. State, 11 Ga. 47. He will be liable to his client for any damages sustained by the latter in consequence of his negligence, misconduct or disobedience of instructions. Wilcox v. Plummer, 4 Pet. 174; Holmes v. Peck, 1 R. I. 242; Reilly v. Cavanaugh, 29 Ind. 435. purchase made by him of his client of the subject matter of an existing liti gation will not be upheld. Wood v. Downer, 18 Vesey, 119; Jackson v. Ketcham, 8 Johns. 479; West v. Raymond, 21 Ind. 305. A mitted into this venerable order, before they are advanced to the bench; the original of which was probably to qualify the puisne barons of the exchequer to become justices of assize, according to the exigence of the statute of 14 Edw. III, c. 16. King's counsel.- From both these degrees some are usually selected to be his majesty's counsel learned in the law; the two principal of whom are usually 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 (as a mark of honour), 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. (a) 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;1 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 advocates were not permitted to be at all concerned *in private suits between subject and sub[*28] ject. (z) Rank of barrister. 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 attorneygeneral, 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)2 may take upon them the protection and defence of any suitors, whether plaintiff or defendant; who are therefore called their clients, like the dependents upon the ancient (w) See his letters, 256. (y) Cod. 2, 9, 1. (x) See his life by Roger North. 37. (z) lbid. 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). 2. The king's ancient serjeant, or the eldest among the king's serjeants. 3. The king's advocate general. 4. The king's attorney-general.3 5. The king's solicitor-general.3 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 courts 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. (b) Seld. tit. hon. 1, 6, 7. 1 The license to defend a prisoner is never refused, but some expense must be incurred in obtaining it. 2 This is no longer the case. 3 The king's attorney and solicitorgeneral now take precedence of the king's premier sergeant. 1 Roman orators. Those indeed practiced gratis, for honor 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) 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 [*29] about 80%. of English money. (f) And, in order 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) And counsel guilty of deceit or collusion are punishable by the statute Westm. I, 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) [*30] 2 *CHAPTER IV. OF THE PUBLIC COURTS OF COMMON LAW AND EQUITY. Four great jurisdictions. 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 (d) Davis 23. (g) Cro. Jac. 90. (c) Davis pref. 22. 1 Ch. Rep. 38. (f) Tac. ann. l. 1, 11, 7. 1 In the United States a counsellor is not only entitled to stipulate for a reasonable fee, but he may recover upon the client's implied promise to pay a reasonable compensation. In the state of New Jersey, however, the rule appears to be otherwise. Seeley v. Crane, 18 N. J. 35; Van Atta v. McKinney's Ex'rs, 19 N. J. 235. It has been held that if an attorney renders a bill on the understanding that it is to be immediately paid, and the client disputes it, and compels its collection by legal proceedings, the attorney is not bound by the bill ren (e) Ff. 11, 6, 1. (h) Sir T. Raym. 376. dered, but may recover what the evidence shows the services to be reasonably worth. Romeyn v. Campau, 17 Mich. 327. Physicians also in the United States may recover upon an implied promise to pay reasonable fees. See Ordronaux, Juris, of Med. 40. 2 See McMillan v. Birch, 1 Binn. 178; Hoar v. Wood, 3 Met. 193; Ring v. Wheeler, 7 Cow. 725; Hastings v. Lusk, 22 Wend. 410; Garr v. Selden, 4 N. Y. 91; Jennings v. Paine, 4 Wis. 358; Cooley Const. Lim. 443. established courts of common law and equity; the ecclesiastical courts; the courts military; and courts maritime. And, first, Common law and equity courts.— Of such public courts as are courts of common law and equity.' 1 This seems an appropriate place in which to note the very great changes which have recently been made in the English judicial system, in the creation of the supreme court of judicature, and the merger therein of the several ancient courts. By the judicature acts of 1873 and 1875, the supreme court of judicature is to consist of two permanent divisions, the high court of justice and the court of appeal. An appeal will lie from the high court of justice to the court of appeal, and from the court of appeal to the house of lords. Two lords of appeal in ordinary are appointed to aid the house of lords in determining appeals. They hold the title of baron for life only, and have a salary of £6,000 per annum. The house of lords may now sit for hearing appeals during the prorogation and dissolution of parliament. The lords of appeal consist of the lord chancellor, the lords of appeal in ordinary, and those peers who have held “high_judicial office." Three lords of appeal must be present in hearing every case. By 11 and 12 Vict. c. 78, the court of crown cases reserved was established for hearing such questions of law in criminal trials as should be remitted to them by the trial judge. There was no appeal from its judgment. These cases are now to be heard by at least five of the judges of the high court of justice. The high court of admiralty has jurisdiction over all maritime causes, that is, injuries occurring on the high seas. It has an instance jurisdiction and in time of war a prize jurisdiction. The independent criminal jurisdiction of this court has been taken away and conferred upon the common law courts, but the judge of the admiralty court may still sit with the commissioners of oyer and terminer. Vice admiralty courts are established in the English colonies and foreign possessions. A court for divorce and matrimonial causes was created by 20 and 21 Vict. c. 85. The court has jurisdiction over suits for dissolution of marriages, for judicial separation, for nullity of marriage, for restitution of conjugal rights, and for jactitation of marriage. The judge of the court of probate is the judge ordinary of this court. Questions of fact may be tried before the court itself or before a jury. An appeal lies from the judge ordinary to the full court. The judicial committee of the privy council is the ultimate court of appeal from the courts of the various colonies and dependencies of Great Britain and the ecclesiastical courts. The ecclesiastical courts have now virtually lost their jurisdiction in civil cases. The high court of justice has original jurisdiction, with appellate jurisdiction from the inferior courts. It has the jurisdiction formerly exercised by the court of chancery, the three common law courts, the courts of admiralty, probate and divorce, the courts of pleas at The probate court had conferred upon Lancaster and Durham, and the courts it by statute in 1857 the jurisdiction created by commissions of assize, oyer over testamentary matters formerly and terminer, and gaol delivery. It exercised by the ecclesiastical courts. consists of five divisions: 1. the chan- The courts of admiralty, probate and cery division; 2. the queen's bench di- divorce now constitute one of the divis vision; 3. the common pleas division; ions of the high court of justice. 4. the exchequer division, and 5. the probate, divorce and admiralty division. In 1881 the queen's bench division, the common pleas division and the exchequer division were consolidated into one, called the queen's bench division. The court of appeal exercises appellate jurisdiction corresponding to that exercised by the court of appeal in chancery,exchequer chamber, the court of the lord warden of the stannaries, and the appellate jurisdiction of the judicial committee in admiralty and heresy matters. It consists of the lord chancellor as its president, the lord chief justice of England, the master of the rolls, and six other judges. The court may be divided into divisions by its president, but every appeal must be heard by at least three judges. The county courts have jurisdiction in personal actions where the amount involved does not exceed £50, and in ejectment where the annual value of the land does not exceed £20. In 1865 an equitable jurisdiction was conferred upon them. Some of them have also jurisdiction in probate, admiralty and bankruptcy cases. There are fifty-eight county courts in England, and their jurisdiction is concurrent with the superior courts, but if a case which might have been begun in the county court The Saxon establishment.-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 [*31] streams from the 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 Gracilasso 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 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: (c) Exod. c. 18. (b) Mod. Un. Hist. xxxix, 14. (a) Mod. Un. Hist. xxxvin, 469. is commenced in the superior court, costs will generally be denied to the plaintiff. The judge of the county court may determine matters of fact as well as of law. An appeal lies to the divisional courts of the high court of justice. Justices of the peace possess preliminary jurisdiction in criminal cases. They commit prisoners for trial at quarter sessions or assize, and may pun Criminal cases are heard by either a judge of the high court, the court of quarter sessions in counties, or the recorder in corporate towns or cities. The court of quarter sessions or the recorder cannot impose a greater sen tence than seven years penal servitude. |