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Courts are also to be distinguished with reference to their degree of jurisdiction, according to which some are supreme, from whence there is no appeal, as the House of Lords and the privy council; others are not supreme, whose determinations are liable to be reviewed by a superior tribunal.
To constitute judicium, or a judicial proceeding in a court of justice for the determination of a question in litigation, or of an accusation,1 three persons or parts are requisite; 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 good his defence, or to submit to the law upon which the plaintiff proceeds against him; 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 its officers to execute, the law thereon.2 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, who is employed in our ecclesiastical and admiralty courts.3 An attorney is one who is put in the place, stead, or turn of another, to manage his matters of law; and it is now permitted in general, upon a principle of convenience, by divers ancient statutes, whereof the first is stat, Westm. 2. c. x., 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
1 On this point see Paulus Castrensis in pr. part. cod. tit. de judic. rubr.
2 Blackst Com. b. iii c. iii. p. 25.
3 Pope Boniface VIII., in Sext . Decretal. 1. iii. t. xvi. § 3, speaks of procurators, u/io in some parts are called attorneys (attorneali).
courts of Westminster Hall; and are in all points officers of the respective courts in which they are sworn and admitted; and as they have many privileges on account of their attendance there, so they are particularly subject to the censure and animadversion of the judges.1 Those who are sworn and admitted to practise in the court of chancery are called solicitors.
Of advocates, or (as we generally call them) counsel, there are two species or degrees,—barristers and sergeants. The former are admitted after a considerable degree of study, or at least of standing, in the inns of court, and are in our old books styled apprentices,—apprenticii ad legem; being looked upon merely as learners, and not qualified to execute the full office of an advocate till they were of sixteen years' standing; at which time, according to Fortescue,2 they might be called by the king's writ to the state and degree of sergeants, or servientes ad legem, which is equivalent, in our law, to the degree of doctor in the civil and canon law. The degree of sergeants is very ancient and honourable, and was formerly conferred with extraordinary solemnity, whereof the only remnant is the distribution of rings, with a motto, at the choice of the new sergeant, to the queen, the judges, and the great officers of the state.3 They are distinguished by a purple or violet-coloured (and on occasions of state a scarlet) robe, and the coif of lawn, which, however, is worn only
1 See Blackst. Com. b. iii. c. iii. p. 25.
s Fortesc. de Laud. Leg. c. 50, especially edit . Waterhouse. 3 Cro. I. Dyer 72. 2 Inst. 213, 214. Reeves, Hist, of Com. Law, vo1 . ii. 128, 284; vol. iv. 121.
3 Fortesc. ibid. 10 Rep. pref. Dugdale, Orig. Jurid.; and a tract by Sergeant Wynne, 1765—Observations concerning the Antiquity and Dignity of the Degree of Sergeant-at-law. See also the learned work, entitled Serviens ad legem, by Mr. Sergeant Manning, 1810.
at their creation; and they enjoy the exclusive privilege of being heard at the bar of, and signing pleadings in, the court of common pleas. By custom, the judges of the courts of Westminster are always admitted into this venerable order before they are advanced to the bench, in consideration of which they address the sergeants with the appellation of brother.
From both these degrees some are selected to be her majesty's counsel, learned in the law, the two principal of whom are called her attorney and solicitor general. The first king's counsel, under the degree of a sergeant, was Sir Francis Bacon: but he was created honoris causa, without patent or fee; so that (as Blackstone remarks) the first of the moder n order who are sworn servants of the crown, and, until lately, received a regular salary, seems to have been Sir Francis North, afterwards lord keeper of the great seal to king Charles II.1 But the queen's counsel, being sergeants, are regularly summoned by writ to sit as attendants in the House of Lords ;2 a privilege which does not belong to the others. A custom (says Blackstone) has of late years prevailed, of granting precedence to such barristers as the crown thinks proper to honour with this mark of distinction.
In the ecclesiastical and admiralty courts, doctors of civil law are the proper counsel. They are admitted members of the college of doctors after taking their degree at Oxford or Cambridge; and after a year of silence, during which they are supposed to learn the practice of the courts, and complete their education by listening to the proceedings, they become exclusively qualified to perform all the functions of an advocate in their own tribunals, and may, indeed, be heard in any of the queen's courts.
1 See his life by Roger North, 37.
s i Inst. cap. i. p. 4. Regist. 261. Fitzh. Nat . Brev. 229.
It is established that a counsel can maintain no action for his fees, which are not given as a salary or hire, but as a gratuity, which a counsellor cannot demand without doing wrong to his reputation;1 and so it is with advocates in the civil law.2 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.3 But counsel guilty of deceit or collusion are punishable, by stat. West. i. 3 Ed. I. c. xxix., with imprisonment for a year and a day, and perpetual silence in the courts.4
1 Blackst. b. iii. c. iii. p. 28. Davis, Pref. 22. 1 Chanc. Rep. 38. Davis, 23. And see note 1 Co. Litt. 295, a.
* Voet ad Pand. tit . de Postul. num. 6, 7, 8. And see Boucher D'Argis, Hist . abrege' de l'Ordre des Avocats, c. iv. See also the commencement of the Dialogue des Advocats du Pari, de Paris, by Loisel, which contains curious particulars throughout respecting the ancient French bar. Gravina de Ort . et Progress, lib. i. § 42, 43, 44.
3 Blackst. ibid. And see L. 11 Cod. de officio advoc.
4 Raym. 376.
OF THE PUBLIC COURTS OF COMMON LAW AND EQUITY.
In the prosecution of that part of our inquiries which relates to the judicial power in the constitutional law of England, it will be most convenient to arrange that important and extensive subject under the following heads: 1. The public courts of common law and equity. 2. Courts ecclesiastical, military and maritime, and courts of a special jurisdiction. 3. The administration of civil justice in England. 4. Courts of a criminal jurisdiction. 5. The administration of criminal justice in England.
The object and scope of this commentary must compel us to confine ourselves to a very superficial and incomplete view of these great and important heads of law; and, indeed, to consider them with any degree of completeness, as to detail, would not only require many volumes, but carry us far into the investigation of private law. We must therefore, in accordance with our plan and object, pursue this branch of the subject as a portion of the administration of the public law of the kingdom, and a part of the scheme of the constitution, rather than the application of a peculiar system of jurisprudence. This view of the administration of justice presents objects of the most paramount constitutional importance. We have seen that the sum of the duties of the regal office is to govern the kingdom according to law; and, indeed, the most essential characteristic of a limited, or (as it is commonly called) a constitutional monarchy, is, that both