Front Page Titles (by Subject) CHAPTER III.: OF COURTS IN GENERAL. - Commentaries on the Laws of England in Four Books, vol. 2
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CHAPTER III.: OF COURTS IN GENERAL. - Sir William Blackstone, Commentaries on the Laws of England in Four Books, vol. 2 
Commentaries on the Laws of England in Four Books. Notes selected from the editions of Archibold, Christian, Coleridge, Chitty, Stewart, Kerr, and others, Barron Field’s Analysis, and Additional Notes, and a Life of the Author by George Sharswood. In Two Volumes. (Philadelphia: J.B. Lippincott Co., 1893).
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OF COURTS IN GENERAL.
The next, and principal, object of our inquiries is the redress of injuries by suit in courts: wherein the act of the parties and the act of law co-operate; the act of the parties being necessary to set the law in motion, and the process of the law being in general the only instrument by which the parties are enabled to procure a certain and adequate redress.
And here it will not be improper to observe, that although, in the several cases of redress by the act of the parties mentioned in a former chapter,(a) the law allows an extrajudicial remedy, yet that does not exclude the ordinary course of justice: but it is only an additional weapon put into the hands of certain persons in particular instances, where natural equity or the peculiar circumstances of their situation required a more expeditious remedy than the formal process of any court of judicature can furnish. Therefore, though I may defend myself, or relations, from external violence, I yet am afterwards entitled to an action of assault and battery: though I may retake my goods if I have a fair and peaceable opportunity, this power of recaption does not debar me from my action of trover or detinue: I may either enter on the lands on which I have a right of entry, or may demand possession by a real action: I may either abate a nuisance by my own authority, or call upon the law to do it for me: I may distrain for rent, or have an action of debt, at my own **23]option: if I do not distrain my neighbour’s cattle damage-feasant, I may compel him by action of trespass to make me a fair satisfaction; if a heriot, or a deodand, be withheld from me by fraud or force, I may recover it though I never seized it. And with regard to accords and arbitrations, these, in their nature being merely an agreement or compromise, most indisputably suppose a previous right of obtaining redress some other way; which is given up by such agreement. But as to remedies by the mere operation of law, those are indeed given, because no remedy can be ministered by suit or action, without running into the palpable absurdity of a man’s bringing an action against himself; the two cases wherein they happen being such wherein the only possible legal remedy would be directed against the very person himself who seeks relief.
In all other cases it is a general and indisputable rule, that where there is a legal right there is also a legal remedy, by suit or action at law, whenever that right is invaded. And in treating of these remedies by suit in courts, I shall pursue the following method: first, I shall consider the nature and several species of courts of justice; and, secondly, I shall point out in which of these courts, and in what manner, the proper remedy may be had for any private injury; or, in other words, what injuries are cognizable, and how redressed, in each respective species of courts.
First, then, of courts of justice. And herein we will consider, first, their nature and incidents in general; and then, the several species of them, erected and acknowledged by the laws of England.
A court is defined to be a place wherein justice is judicially administered.(b) And, as by our excellent constitution the sole executive power of the laws is vested in the person of the king, it will follow that all courts of justice, which are **24]the medium by which he administers the laws, are derived from the power of the crown.(c) For, whether created by act of parliament, or letters-patent, or subsisting by prescription, (the only methods by which any court of judicature(d) can exist,) 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 places: 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, nor shall any plea, or even proof, be admitted to the contrary.(e)1 And if the existence of a record be denied, it shall be tried by nothing but itself; that is, upon bare inspection whether 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,(f) and therefore no other court hath authority to fine or imprison; so that the very erection *[*25of a new jurisdiction with the power of fine or imprisonment makes it instantly a court of record.(g)2 A court not of record is the court of a private man; whom the law will not intrust with any discretionary power over the fortune or liberty of his fellow-subjects. Such are the courts-baron 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 judical 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 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.(i) 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,)(k) unless by special license under the king’s letters-patent.(l) This is still the law in criminal cases.3 And an idiot cannot to this day appear by attorney, but in person;(m) 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.(n) 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,”(o) so with us, upon the same principle of convenience, it is now permitted in general, by divers antient statutes, whereof the first is statute Westm. 3, c. 10, 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 courts of Westminster hall, and are in all points officers of the respective courts of 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.4 No man can practise 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 practise in the court of common pleas; nor vice versa.5 To practise in the court of chancery it is also necessary to be admitted a solicitor therein: and by the statute 22 Geo. II. c. 40, 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 further regulations.6
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;(q) and are in our old books *[*27styled 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,(r) they might be called to the state and degree of serjeants, or servientes ad legem. How antient and honourable 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 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 assize, according to the exigence of the statute of 14 Edw. III. c. 16.7 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;(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.(x) 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;8 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 *[*28in private suits between subject and subject.(z) A custom has of late years prevailed of granting letters-patent of precedence to such barrister 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 attorney-general, 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)10 may take upon them the protection and defence of any suitors, whether plaintiff or defendant; who are therefore called their clients, like the dependants upon the antient Roman orators. Those indeed practised gratis, for honour 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)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, **29]or about 80l. of English money.(f)12 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)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 misdemeanours in practice.(h)
[(a) ] Ch. 1.
[(b) ] Co. Litt. 58.
[(c) ] See book i. ch. 27.
[(d) ] Co. Litt. 260.
[(e) ] Ibid.
[1 ] This rule is subject to some exceptions; for in the case of a judgment signed on a warrant of attorney given upon an unlawful consideration or obtained by fraud, upon an affidavit thereof, the court will afford relief upon a summary application. Doug. 196. Cowp. 727. 1 Hen. Bla. 75. And equity will relieve against a judgment obtained by fraud or collusion. 1 Anst. 8. 3 Ves. & B. 42. And third persons who have been defrauded by a collusive judgment may show such fraud, so as to prevent themselves from being prejudiced by it. 2 Marsh. 392. 7 Taunt. 97. 13 Eliz. c. 5.—Chitty.
[(f) ] Finch, L. 231.
[(g) ] Salk. 200. 12 Mod. 388.
[2 ] But every court of record has not necessarily a power to fine and imprison. 1 Sid. 145. There are several of the king’s courts not of record, as the court of equity in chancery, the admiralty courts, &c. 4 Inst. 84. 37 H. 6, 14, b. Yelv. 227. Com. Dig. tit. Chancery, C. 2.—Chitty.
[(h) ] 2 Inst. 311.
[(i) ] Pope Boniface VIII. in 6 Decretal. l. 3, t. 16, 3, speaks of “procuratoribus, qui in aliquibus partibus attornati noncupantor.”
[(k) ] Stiernhook de jure Goth. l. 1, c. 6.
[(l) ] F. N. B. 25.
[3 ] This is not universally so; for in prosecutions and informations for misdemeanours, especially in the court of King’s Bench, a defendant may, and usually does, appear and plead by his attorney or clerk in court. 1 Chitty’s Crim. Law. But an attorney has no right to be present during the investigation of a charge of felony before a magistrate against his client. 3 B. & A. 432; and see 1 B. & C. 37.—Chitty.
[(m) ] F. N. B. 27.
[(n) ] Bro. Abr. tit. Idiot, 1.
[(o) ] Inst. 4, tit. 10.
[4 ] An attorney is bound to use care, skill, and integrity; and if he be not deficient in any of these essential requisites he is not responsible for any error or mistake arising in the exercise of his profession. 4 Burr. 2061; and see 4 B. & A. 202. If he be deficient, and a loss thereby arises to his client, he is liable to an action in damages, (2 Wils. 325, 1 Bing. 347;) and in some cases, as we have above seen, the court of which he is an attorney will afford a summary remedy.—Chitty.
The judges will exercise their summary jurisdiction over the attorneys of the several courts, not merely in cases where they have been employed in the conduct of suits, or any matter purely professional, but “whenever the employment is so connected with their professional character as to afford a presumption that their character formed the ground of their employment.” Thus, one attorney has been compelled to give up papers and deeds which had been placed in his hands as steward for the owner of the estates to which they refer, and another to pay over money which he had received when employed to collect the effects of an intestate by the administrator, although he had never been employed by him to prosecute or defend any suits in law or equity. Hughes vs. Mayer, 3 T. R. 275. In re Aitkin, 4 B. & A. 47. Luxmoore vs. Lethbridge, 5 B. & A. 898.—Coleridge.
[5 ] But now, by stat. 6 & 7 Vict. c. 73, s. 27, attorneys admitted of any one of the superior courts may practise in any other superior court, or in any inferior court of law in England and Wales, upon signing the roll of such other court. To practise in the court of chancery and the superior courts of equity, however, it is still necessary to be admitted a solicitor therein.—Stewart.
[(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.
[6 ] The stat. 6 & 7 Vict. c. 73, consolidating and amending several of the laws relating to attorneys and solicitors, prescribes the conditions of admission as an attorney, the time and mode of their service under articles, and the oaths to be administered to them, and authorizes the judges of the courts of common law and the master of the rolls to appoint examiners to examine the fitness and capacity of all persons applying to be admitted as attorneys or solicitors; and the certificate either of the common law or equity examiners will be sufficient to entitle a person so examined to admission in all the courts, examination by both not being necessary.—Stewart.
[(q) ] See book i. introd. 1.
[(r) ]De LL. c. 50.
[(s) ] Fortesc. ibid. 10 Rep. pref. Dugd. Orig. Jurid. To which may be added a tract by the late serjeant Wynne, printed in 1765, entitled “Observations touching the Antiqiuty and Dignity of the Degree of Serjeant-at-Law.”
[(t) ] 2 Inst. 214.
[(u) ] Fortesc c. 50.
[7 ] The degree of serjeant was deprived of its most profitable, if not most important, advantage (exclusive audience in the court of Common Pleas) by the stat. 9 & 10 Vict. c. 54, which extends to all barristers the privileges of serjeants in the court of Common Pleas.—Stewart.
The most valuable privilege formerly enjoyed by the serjeants (who, besides the judges, were limited to fifteen in number) was the monopoly of the practice in the court of Common Pleas. A bill was introduced into parliament in the year 1755 for the purpose of destroying this monopoly; but it did not pass. In 1834, a warrant under the sign-manual of the crown was directed to the judges of the Common Pleas, commanding them to open that court to the bar at large, on the ground that it would tend to the general despatch of business. This order was received, and the court acted accordingly. But in 1839 the matter was brought before the court by the serjeants, when it was decided that the order was illegal, Tindal, C. J., declaring that “from time immemorial the serjeants have enjoyed the exclusive privilege of practising, pleading, and audience in the court of Common Pleas. Immemorial enjoyment is the most solid of all titles; and we think the warrant of the crown can no more deprive the serjeant, who holds an immemorial office, of the benefits and privileges which belong to it, than it could alter the administration of the law within the court itself.” 10 Bingh. 571. 6 Bingh. N. C. 187, 232, 235. However, the statute 9 & 10 Vict. c. 54 has since extended to all barristers the privileges of serjeants in the court of Common Pleas.—Sharswood.
[(w) ] See his letters, 256.
[(x) ] See his life by Roger North, 37.
[8 ] Hence none of the king’s counsel can publicly plead in court for a prisoner, or a defendant in a criminal prosecution, without a license,—which is never refused, but an expense of about nine pounds must be incurred in obtaining it.—Chitty.
[(y) ] Cod. 2, 9, 1.
[(z) ] Ibid. 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.9
5. The king’s solicitor-general.
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.
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.
[10 ] That is, in bank; for at trials at nisi prius in Common Pleas a barrister who is not a serjeant may even lead a cause.—Chitty.
[(c) ] Davis, pref. 22. 1 Ch. Rep. 38.
[(d) ] Davis, 23.
[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 client’s case or neglected to attend to it, he was liable to be sued. See Vin. Abr. 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. 1 T. 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.—Chitty.
[(e) ]Ff. 11, 6, 1.
[(f) ] Tac. Ann. l. 11.
[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, ferro in domo ejus incubuit. In consequence of this, the senate insisted upon enforcing the Cincian law, quâ cavetur antiquitûs, nequis 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 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 potentiâ, neque adulterari pecunia possit. Cic. pro Cæcina.—Christian.
In New Jersey, an advocate’s fees are not recoverable at law. Shaver vs. Norris, Pennington, 663. Seeley vs. Crane, 3 Green, 35. Van Alter vs. McKinney’s Exrs., 1 Harrison, 236. However, the general current of decisions in the United States is in favour of the right of counsel to recover by a suit at law a reasonable compensation for their services, whether in court or out of court. Stevens vs. Adams, 23 Wendell, 57, S. C. 26. Ibid. 451. Newman vs. Washington, Martin & Yerger, 79. Stevens vs. Monges, 1 Harrington, 127. Bayard vs. McLane, 3 Harrington, 217. Duncan vs. Beisthaupt, 1 McCord, 149. Downing vs. Major, 2 Dana, 228. Christy vs. Douglass, Wright’s Ch. Rep. 485. Webb vs. Hepp, 14 Missouri, 354. Vilas vs. Downer, 21 Vermont, 419. Lecatt vs. Saller, 3 Porter, 115. Gray vs. Brackenridge, 2 Penna. Rep. 181. Foster vs. Jack, 4 Watts, 33. It may be questioned whether the real interests of the profession have been promoted by the change.—Sharswood.
[(g) ] Cro. Jac. 90.
[13 ] See the late important case establishing the correctness of this position. Holt, C. N. P. 621. 1 B. & A. 232. 1 Saund. Rep. 130.—Chitty.
[(h) ] Sir T. Raym. 376.