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COURTS OF JUSTICE.

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that another person be called in as umpire, to whose sole judgment it is then referred: or frequently there is only one arbitrator originally appointed. This decision is called an award; and thereby the question is as fully determined, as it could have been by the agreement of the parties or the judgment of a court of justice.

Secondly. Of that redress which is effected by the mere operation of law, there are two instances only: retainer and remitter.

I. If a person indebted to another makes his creditor his executor, or if such creditor obtains letters of administration to his debtor; in either case the law allows him to retain so much as will pay himself. For the executor cannot commence an action against himself as representative of the deceased, to recover that which is due to him in his own private capacity; but, having the whole personal estate in his hands, so much as is sufficient to answer his own demand is, by operation of law, applied to that particular purpose. But the executor shall not retain his own debt, ir prejudice to those of a higher degree; for the law only puts him in the same situation, as if he had sued himself as executor, and recovered his debt. And an executor of his own wrong is in no case permitted to retain.

II. Remitter is where he who has the true property or jus proprietatis in lands, but is out of possession thereof, and cannot recover possession without an action, has the freehold cast upon him by some subsequent, and of course defective, title; in this case he is remitted, or sent back to his ancient and more certain title. The reason is that otherwise he who has right would be deprived of all remedy. For as he himself is the person in possession, there is no other against whom he can bring an action. So the law adjudges him in by remitter; that is, in such plight as if he had recovered the land by action.

Thirdly. In the redress of injuries by suit in court, the act of the parties and the act of law co-operate; the act of the parties to set the law in motion, the process of the law being the instrument by which the parties procure redress.

Although in the cases already mentioned, the law allows an extra-judicial remedy, yet that does not exclude the ordinary course of justice. Though I may defend myself from violence,

I yet am entitled to recover damages for the assault; though I may retake my goods, this power of recaption does not debar me from my action: I may either abate a nuisance by my own authority, or call upon the law to do it for me. And with regard to accords and arbitrations, these being an agreement or compromise, suppose a previous right of obtaining redress some other way; which is given up by such agreement.

In all other cases it is a general rule, that where there is a right there is also a remedy by action, whenever that right is invaded. And in treating of these remedies by action I shall consider firstly the nature and several species of courts of justice; and, secondly, in which of these courts, the proper remedy may be had for any private injury.

A court is a place wherein justice is judicially administered. And, as the sole executive power is vested in the sovereign, it follows that all courts of justice are derived from the crown. For, whether created by act of parliament, or subsisting by prescription, the consent of the crown in the former is expressly, and in the latter impliedly, given. In all the sovereign is supposed to be present; but as that is impossible, the crown is there represented by the 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 has appointed a variety of courts, some with a limited, others with an unlimited jurisdiction; one distinction, I must mention, that runs throughout them all; viz., that some are courts of record, others not of record.

A court of record is that where the proceedings are enrolled or recorded; which rolls are the records of the court, and are of such high authority, that their truth cannot be called in question. Nothing can be averred against a record, nor shall any plea, or even proof, be admitted to the contrary. And if its existence 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 will be no end of disputes.

A court not of record is defined to be the court of a private man; such as the courts-baron incident to every manor, and such other inferior jurisdictions: where the proceedings are not enrolled or

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recorded; but as well their existence as their truth shall be tried and determined in course of law. The court of Chancery in Equity, now merged in the High Court, was a court not of record, and the Spiritual Courts are courts not of record; the county courts and many other inferior courts, have been by statute constituted courts of record.

In every court there must be 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 its officers apply the remedy. It is also usual to have solicitors, and counsel, as assistants.

A solicitor answers to the procurator, or proctor, of the civilians and canonists. Formerly every suitor was obliged to appear in person, unless by special licence under letters patent. This is still the law in criminal cases. But, it is now permitted by divers statutes, whereof the first is Westm. 2, c. 10, that attorneys may be put in the place or turn of another to prosecute or defend any action in his absence. These attorneys, or, as they are now called, solicitors, are admitted to the execution of their office by the High Court; and are in all points officers of the courts. They are privileged, on account of their attendance there, from serving on juries, and are, on the other, peculiarly subject to the animadversion of the judges in the exercise of their professional duties.

Of advocates, or, as we generally call them, counsel, there are two species or degrees: barristers, and serjeants. The former are admitted, after certain preliminaries, in the inns of court; and are, in our old books, styled apprentices, apprenticii ad legem, having been at that time looked upon as merely learners, and not qualified to execute the office of an advocate till they were of considerable standing. A barrister of seven years' standing is considered entitled to be called to the degree of serjeant, a separate body at the bar, bound by a solemn oath to do their duty to their clients: and into which order the judges of the courts of Westminister were formally admitted before they were advanced to the bench. From the bar generally some are

selected to be her majesty's counsel learned in the law, as they are by courtesy styled: the two principal of whom are her attorney and solicitor general. They must not be employed in any cause against the crown without special licence, which, however, is never refused. Together with the serjeants, they sit within the bar of the respective courts. All of them may take upon them the protection and defence of any suitor, whether plaintiff or defendant; who are therefore called their clients, like the dependents upon the ancient Roman orators. Those indeed practised gratis, for honour merely, or at most for the sake of gaining influence: and with us 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.

CHAPTER II.

OF THE COURTS.

OUR several courts of justice are either such as are of public and general jurisdiction throughout the realm; or such as are only of a private or special jurisdiction in some particular parts of it.

The policy of our ancient constitution, as established by Alfred, was to bring justice home to every man's door, by constituting as many courts as there were manors in the kingdom; wherein injuries were redressed in any expeditious manner, by the suffrage of neighbours and friends. These little courts 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 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. These inferior courts still continue in our legal constitution; but as the superior courts obtained, at a very early period in our legal history, a concurrent original jurisdiction with them, they soon fell into decay, and have now fallen almost into oblivion.

I. The lowest court of justice known to the law of England, is the court of piepoudre; so called from the dusty feet of the

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suitors; or, according to Coke, because justice is there done as speedily as dust can fall from the foot. It is now entirely obsolete.

II. The court-baron is incident to every manor; is holden by the steward; and is of two natures: the one a customary court, still existing, appertaining to the copyholders, in which their estates are transferred by surrender and admittance:-the other. a court of common law, was held anciently every three weeks; and its most important business was to determine all controversies relating to the right of lands within the manor. It is now obsolete, as is also the Hundred Court, which was for the hundred what the court-baron was for the manor. The next in order is

III. The Schyremote, or ancient county court, a court not of record, incident to the jurisdiction of the sheriff, which formerly held pleas of debt or damages and of many real actions. The freeholders were and are the judges, so far as it still exists as a court, and the sheriff is the ministerial officer. All acts of parliament were anciently published in the county court by the sheriff; all outlawries of absconding offenders are still there proclaimed; and all popular elections which the freeholders are to make, as of the coroner, are still made in pleno comitatu.

All these courts, however, having fallen into disuse as courts of civil jurisdiction, their place has been supplied by—

IV. The County Court, established by 9 & 10 Vict. c. 95, to supply the place of the Courts of Requests and Courts of Conscience, which to a certain extent superseded the local Courts, and were intended solely for the recovery of small debts. The first of these was established in London in the reign of Henry VIII., and gave so much satisfaction, that divers trading towns and other districts afterwards obtained acts of parliament for establishing in them courts upon nearly the same plan as that in London. This clearly proved that the nation was sensible of the great inconvenience arising from the disuse of their ancient courts; wherein causes of small value were always decided with very little trouble and expense to the parties. But no general establishment of local tribunals took place till 1847; when upwards of one hundred courts of request were abolished, the

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