4

courts of justice, which are [24] the medium by which he administers the laws, are derived from the power of the crown.* [See note 9, page 44.] For whether created by act of parliament, or letters patent, or *subsisting by prescription (the only methods by which any court of judicature & can exist 1), 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 place: 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 for a perpetual memorial and testimony: which rolls are called the records of the court, and are of such high and supereminent 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 [see note 10, page 45], nor shall any plea, or even proof, be admitted to the contrary. And if the existence of a record be denied, it shall be tried by nothing but itself; that is, upon bare inspection whether

c See book I. ch. 7.

d Co. Litt. 260.

e Ibid.

4 Previously, "of erecting a new." Cited otherwise in this country, 1 Binn. 420.

there be any such record or no; else there would be no end of disputes.* But, if there appear any mistake of the clerk in making up such record, the court will direct him to amend it. All courts of record are the king's courts, in right of his crown and royal dignity,' and therefore no other court hath authority to fine or imprison; so that the very erection [25] of a new jurisdiction with power of fine or imprisonment makes it instantly a court of record.s? A court not of record is the court of a private man; whom the law will not entrust with and yiscretionary 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

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 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 it's officers to

f Finch. L. 231.

g Salk. 200. 12 Mod. 388.

h' 2 Inst. 311.

- Quoted, 51 Miss. 657; Dud. (Ga.) 255. Gited, 47 Ala. 65; 2 Ark. 19: 25 N. J. L. 207; 103 N. Y. 386; 1 Watts, 427; 26 Am. Dec. 81; 3 Yeates, 575; 51 Miss. 655.

+-2 Quoted, 1 Ga. Dec. 51. Cited, 20 Ala. 287; 36 Ala. 263; 36 Ark. 439; 34 Cal. 422, 423, 424; 7 Blackf, 273; 10 N. H. 288; 10 Watts, 24; as to last sentence, 52 Cal. 224; 2 Gall, 458; 1 Ga. Dec. 55; 60 Me. 260; Addis. 82; as to amendments, 10 N. H. 289; 31 N. H. 33.

3 BLACKST.-4.

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. 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 *), unless by special licence under the king's letters patent. This is still the law in criminal cases. And an idiot cannot to this day appear by attorney, but in person; for he hath not discretion to enable him to appoint [26] a proper substitute: 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." But, as in the Roman law" cum olim in usu fuisset, alterius nomine agi non posse, sed, quia hoc non minimam incommoditatem habebat, cœperunt homines per procuratores litigare," with us, upon the same principle of convenience, it is now permitted in general, by divers antient statutes, whereof the first is statute West. 2. c. 10. [see note 11, page 45] 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

190 SO

i Pope Boniface VIII. in 6. Decretal. l. 3. t. 16. ? 3. speaks of "procuratoribus, qui in aliquibus partibus atornati nuncupantur." k Stiernhook de jure Goth. l. 1. c. 6.

1 F. N. B. 25.

m Ibid. 27.

'n Bro. Abr. t. ideot. 1.

o Inst. 4. tit. 10.

* Quoted, 27 Ark. 134;5 Colo. 381; 4 Mo. 198. Cited, 55 N. Y, 35, *Ref. 17 Ind. 173; 79 Am. Dec. 471; 45 Ind. 506; 79 Ind. 378.

† Cited, 5 Conn. 325; 1 W. Va. 297.

<Cited, 20 Iowa, 171; 89 Am. Dec. 521.

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 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 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 Hen. IV. c. 18. it was enacted, that attorneys should be examined by the judges, and none admitted but such as was virtuous, learned, and sworn to do their duty. And many subsequent statutes 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; and are in our old [27] books stiled apprentices, apprenticii 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, they might be called to the state and degree of serjeants, or servientes ad legem. How antient and honorable this state and degree is, with the form, splendor, and profits attend

p 3 Jac. I. c. 7. 12 Geo. I. c. 29. 2 Geo. II. c. 23. 22 Geo. II. c. 46. 23 Geo. II. c. 26.

q See vol. I. introd. § 1.

r de LL. c. 50.

*Cited, 39 Wis. 510; 20 Am. Rep. 56.

+ Cited, 1 Munf. 479.

ing it, have been so fully displayed by many learned writers, that they need not be here enlarged on. I shall only observe, that serjeants at law are bound by a solemn oatht to do their duty to their clients: and that by custom" 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;" 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. 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; in which restriction they agree with the advocates of the fisc: 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 [28] in private suits between sub

s Fortesc. ibid. 10 Rep. pref. Dugdal. 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."

t 2 Inst. 214.

u Fortesc. c. 50.

w See his letters. 256.

x See his life by Roger North. 37.

y Cod. 2. 9. 1.