rank promifcuously with the king's counfel, and together with them fit within the bar of the refpective courts: but receive no falaries, and are not sworn; and therefore are at liberty to be retained in causes against the crown. And all other ferjeants and barristers indifcriminately (except in the court of common pleas, where only ferjeants are admitted) 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 fake of gaining influence: and fo likewise it is eftablished with us, that a counsel can maintain no action for his fees (3); which are given, not as locatio vel conductio, but as quiddam honorarium ; not as a falary or hire, but as a mere gratuity, which a counsellor cannot demand without doing wrong to his reputation: as is also laid down with regard to advocates in the civil law, whofe honorarium was directed by a decree of the senate not to exceed in any cafe ten thousand [29] fefterces, or about 80%. of English money (4). And, in order c Davis pref. 22. 1 Ch. Rep. 38., с Ff. 11. 61. f Tac. ann. 1, it. (3) Upon the fame principle a physician cannot maintain an action for his fees. 4 T. . R. 317. (4) The circumstances which led to this decree, as recorded by Tacitus, deferve to be mentioned. Samius, a Roman knight of distinction, having given Suilius a fee of three thoufand guineas to undertake his defence, and finding that he was betrayed by his advocate, ferro in domo ejus incubuit. In confequence of this the fenate infifted upon enforcing the Cincian law, quá cavetur antiquitùs, nequis ob caufam orandam pecuniam donumve accipiat. Tacitus then recites the arguments of those who spoke against the payment of fees, and of those who fupported the practice, and concludes with telling us, that Claudius Cæfar thinking that there was more reason, though lefs liberality, in the arguments of the latter, capiendis pecuniis pofait modum, ufque ad dena feftertia, quem egreffi repetundarum tenerentur. 1 Ann. lib. 11. 2. 5. But befides the acceptance of fuch immenfe fees, the perfidy of advocates had become a tommon traffic; for Tacitus introduces the to encourage due freedom of speech in the lawful defence of their clients, and at the fame time to give a check to the unfeemly licentiousness of prostitute and illiberal men (a few of whom may sometimes infinuate themselves even into the most honorable profeffions) it hath been holden that a counsel is not answerable for any matter by him spoken, relative to the cause in hand, and fuggested in his clients instructions; although it should reflect upon the reputation of another, and even prove abfolutely 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. And counsel guilty of deceit or collufion are punishable by the ftatute Weftm. 1. 3 Edw. I. c. 28. with imprisonment for a year and a day, and perpetual filence in the courts; a punishment ftill fometimes inflicted for grofs mifdemefnors in practice 1. the subject by obferving, nec quidquam publicæ mercis tam venale fuit quam advocatorum perfidia. To the honour of our courts the corruption of judges and the treachery of counfel are crimes unheard of in this country. VOL. III. CHAPTER THE FOURTH. OF THE PUBLIC COURTS OF COMMON LAW AND EQUITY. WE E are next to confider the feveral fpecies and diftinctions 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 fuch as are only of a private and special jurisdiction in fome particular parts of it. Of the former there are four forts; the universally established courts of common law and equity; the ecclefiaftical courts; the courts military; and courts maritime. And, firft, of fuch public courts as are courts of common law and equity. THE policy of our ancient conftitution, as regulated and established by the great Alfred, was to bring justice home to every man's door, by conftituting as many courts of judicature as there are manors and townships in the kingdom; wherein injuries were redreffed in an eafy and expeditious manner, by the fuffrage of neighbours and friends. Thefe little courts however communicated with others of a larger jurisdiction, and those with others of a ftill greater power; ascending gradually from the lowest to the fupreme courts, which were respectively 31 refpectively conftituted to correct the errors of the inferior ones, and to determine fuch caufes as by reafon of their weight and difficulty demanded a more folemn discussion. The course of justice flowing in large ftreams from the king, as the fountain, to his fuperior courts of record; and being. then fubdivided into fmaller channels, till the whole and every part of the kingdom were plentifully watered and refreshed. An inftitution that seems highly agreeable to the dictates of natural reafon, 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 to that which was established in the Jewish republic by Mofes. 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 confifting of twelve judges. Peru, according to Garcilaffo de Vega, (an historian descended from the antient Incas of that country) was divided into small diftricts containing ten families each, all registred, and under one magistrate; who had authority to decide little differences and punish petty crimes. Five of these compofed a higher clafs of fifty families; and two of these last compofed another called a hundred. Ten hundreds conftituted the largest divifion, confifting of a thousand families; and each divifion had it's feparate judge or magistrate, with a proper degree of subordination". In like manner we read of Mofes, that, finding the fole administration of justice too heavy for him, he "chofe able men out of all Ifrael, fuch as feared God, men "of truth, hating covetoufnefs; 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 Mofes, "but every small matter they judged themselves " Thefe inferior courts, at least the name and form of them, still con a Mod. Un. Hift. xxxviii, 469. c Exod, c. 18. D 2 tinue BOOK III. tinue in our legal conftitution: but as the fuperior courts of [32] record have in practice obtained a concurrent original jurifdiction with thefe; and as there is befides a power of removing plaints or actions thither from all the inferior jurisdictions; upon these accounts (among others) it has happened that these petty tribunals have fallen into decay, and almost into oblivion: whether for the better or the worfe, may be matter of fome fpeculation; when we confider on the one hand the increase of expense and delay, and on the other the more able and impartial decifion, that follow from this change of jurisdiction. THE order I fhall observe in discourfing on these several courts, constituted for the redress of civil injuries (for with thofe of a jurifdiction merely criminal I fhall not at prefent concern myself) will be by beginning with the lowest, and those whose jurifdiction, though public and generally disperfed throughout the kingdom, is yet (with regard to each particular court) confined to very narrow limits; and fo afcending gradually to those of the most extensive and tranfcendant power. I. THE loweft, and at the fame time the moft 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 fuitors; or according to fir Edward Coked, because juftice is there done as ípeedily as duft can fall from the foot. Upon the fame principle that juftice among the Jews was administered in the gate of the city, that the proceedings might be the more fpeedy as well as public. But the etymology given us by a learned modern writer is much more ingenious and fatisfactory; it being derived, according to him, from pied puldreaux (a pedlar, in old French) and therefore fignifying the court of fuch petty chapmen as refort to fairs or markets. It is a court of record, incident to every fair and market; of which the fteward of him, who owns or d 4 Init. 272. e Ruth. c. 4. f Barrington's obfervat. on the ftat, 337 has |