(12) Those indeed practiced gratis, for honor merely and so likewise it is established with us that a counsel can maintain no action for trespass, page 28. The rule that a counsel can maintain no action for his fees is now properly obsolete in this country, for it is not regarded as a point of honor not to ask a proper compensation for work done. (See Sharswood's Legal Ethics, p. 148.) The effect of the Roman rule, referred to above, is shown by Tacitus, Ann. xi. 5. as Professor Christian has pointed out.

On the other hand, it is a rule of the common law that if a serjeant or other do or counsels to do any manner of deceit in court, to deceive the court or the parties concerned, he shall be imprisoned for a year and a day, and not be heard again. (Stat. Westm. 1, c. 29.) And wilfully pleading a false plea to delay justice is said by Coke to be within this statute. (2 Inst. 215. See Bacon's Abt. Pleas, G. 4; Fortescue v. Hall, 1 Vent, 213.) ·

CHAPTER THE FOURTH.

OF THE PUBLIC COURTS OF COMMON LAW AND EQUITY.

[See note 13, page 83.]

We are next to consider the several species and distinctions of courts of justice, which are acknowleged 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 5 and 5 equity.

The policy of our antient 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 [31] course of justice flowing in large 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 5 Previously, "or." *Cited, Addis. 81.

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 that which was established in the Jewish republic by Moses. In Mexico each town and province had it's 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. Peru, according to Garcilasso de Vega (an historian descended from the antient 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 hundred constituted the largest division, consisting of a thousand families; and each division had it's separate judge or magistrate, with a proper degree of subordination. 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 jurisdictions; upon these accounts (among others)

a Mod. Un. Hist. xxxviii. 469.

b Ibid. xxxix. 14.

c Exod. c. 18.

it has happened that [32] these petty tribunals have fallen into decay, and almost into oblivion: whether for the better or the worse, may be matter of some speculation; when we consider on the one hand the increase of expence and delay, and on the other the more upright 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, 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, that the proceedings might be the more speedy, as well as public. But the etymology given us by a learned modern writer 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. It was instituted to administer justice for all 5 commercial 5 injuries done in that very fair or market, and not in any preceding one. [See note 14, Ruth. c. 4.

d 4 Inst. 272.

e

e

f Barrington's observat, on the stat. 337.

3 BLACKST.-5

page 85.] So that the injury must be done, complained of, heard, and determined, within the compass of one and the same day, "unless the fair continues longer.5 The court hath cognizance of [33] all matters 5 of contract 5 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. From this court a writ of error lies, in the nature of an appeal, to the courts at Westminster. The reason of it's 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 it's process, or execute it's judgments, on both or perhaps either of the parties; and therefore, unless this court had been erected, the complaint 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: the one is a customary court, of which we formerly spoke, 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 antiently called: 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 freeholder's court, was composed of the lord's tenants, who were the pares of each other,

g Stat. 17 Edw. IV. c. 2.

h Cro. Eliz. 773,

i Co. Litt. 58.

k Book II. ch. 4. ch. 6. and ch. 22. 4 Previously, "and was."