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given, not as locatio vel conductio, but as quiddam honorarium ; not as a sa. ary 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 honorurium was directed by a decree of the senate not to exceed any case ten thousand sesterces, or about 80l. of English money (f) (12). And, in order ( *29 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 licentious ness of prostitute and illiberal men (a few of whom may sometimes insi nuate themselves even into the most honourable professions), it hath been holden that a counsel is not answerable for any matter by him spoken, re lative 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 misdemeanors in practice (h) (14). (d) Davis, 23.
(8) Cro. Jac. 90. ( P. 11. 6. I.
(h) Sir T. Raym. 376. in Tac. ann. I. 11.
(11) Upon the same principle a physician less liberality, in the arguments of the latter, cannot maintain an action for his fees. 4. capiendis pecuniis posuit modum, usque ad dena Term Rep. 317*. It has also been held, that sestertia, quem egressi repetundarum tenerentur. no action lies to recover back a fee given to a I Ann. lib. II. c. 5. barrister to argue a cause which he did not at. But besides the acceptance of such immenso tend. Peake's R. 122. Formerly it was con- fees, the perfidy of advocates had become a sulered, that if a counsel disclosed his clients cominon traffic i for Tacitus introduces the case or neglected to attend to it, he was liable subject by observing, nec quidquam publica to be sued. See Vin. Ab. Actions of Assump- mercis tam venale fuit quam advocatorum perfi. sit, P. But in more modern times it has been dia. To the honour of our courts the corrupconsidered, that no such action is sustainable. tion of judges and the treachery of counsel are Peake's R. 96.
crimes unheard of in this country. Quid enim On the other hand, serjeants and barristers est jus civile? Quod neque inflecti gratia, ne: are entitled to certain privileges. Each is an que perfringi potentia, neque adulterari pecunia esquire, and his eldest son is qualified to kill possit. Cic. pro Cæcina. game. (1 T. R. 44). They are entitled when (13) See the late important case establishsued separately to have the venue laid in any ing the correctness of this position. Holt, C. action against them in Middlesex, 1 Stra. 610; N. P. 621. I B. & A. 232. 1 Saund. Rep. and are privileged from arrest and from being 130. taken in execution whilst they are on their (14) The courts of the U. S. are the Suproper circuit, and when they are attending preme, the Circuit, and the District Courts; the sittings at nisi prius. 1 Hen. Bla. 636. their jurisdiction is limited by the constitution,
(12) The circumstances which led to this Art. Section 22. But Congress has not decree, as recorded by Tacitus, deserve to be vested in them all the power ihat it might mentioned. Samius, a Roman knight of dis- under the constitu:ion, and they have only such inction, having given Suilius a fee of three jurisdiction as Congress may choose to confer. thousand guineas to undertake his defence, (Id. 92). and finding that he was betrayed by his advo. By the law of 1789, ch. 20, (1 Story's Laws cate, ferio in domo ejus incuburt. In conse. V. S. 58, Ø 13), the Supreme Court has ex. quence of this the senate insisted upon enforc. clusive jurisdiction of all controversies of a ing the Cincian law, quá cavelut' antiquitùs, civil nature where a state is a party, except requis ob causam orandam pecuniam donumve between a state and its citizens, and except accipiat.
also between a state and citizens of other Tacitus then recites the arguments of those states or aliena; in which latter case it has who spoke against the payment of fees, and of original, but not exclusive, jurisdiction : it has those who supported the practice; and con. also exclusive jurisdiction of all suits against cludes with telling is, that Claudius Cæsar ambassadors or other public ministers and their thinking that there was more reason, though domestics; and original, but not exclusiva
• In New-York the right of counsel and of physicians to o le for their fees is fully recog bised.
jurisdiction of suits by ambassadors or other of all suits at common law where the U. 9
decision without voting. An appeal lies to it
to him from the decisions of the vice-chancel. The Circuit Court is next in rank: it has lors, and in some cases from the decisions of original jurisdiction, concurrently with the surrogates. state courts, of all civil suits where the matter The Supreme Court has jurisdiction in all in dispute exceeds 500 dollars, and the U. S. common law cases. It is aided in practice, are plaintiffs, or an alien is a party, or the almost entirely relieved from the trial of causes, suit is between a citizen of the state where as the circuit judges try issues of fact in ali the suit is brought and a citizen of another civil common law causes; and with two of the state. It has exclusive jurisdiction of all judges of the county courts, are the judges in crimes and offences cognizable under the au- the court of Oyer and Terminer. The circuit thority of the U. S. except when specially other. judges are also the vice-chancellors of their wise provided; and concurrent jurisdiction own circuit, and appeals lie to them in somo with the district courts of the crimes and of. cases frorn the surrogates of their counties. fences cognizable therein. (Id. 57.011). It In the first circuit, including the city of nas also appellate jurisdiction from the dis. New-York, the offices of vice-chancellor and trict court. (Id).
of circuit judge are distinct. The District Court has jurisdiction, exclu. Courts of Common Pleas are appointed for sively of the state courts, of all crimes and of each county, and have cognizance of all local fences cognizable under the authority of the actions within their country, and of all transito. U. S. committed within its district or upon ry actions and of appeals from the justices' the high seas, where no other punishment than courts : except in the city of New-York, where whipping not exceeding thirty stripes, a fine the decisions of the justíces' courts are reviewnot exceeding 100 dollars, or a term of impri. ed by the Superior Court for the city on a cer. sonment not exceeding 6 months, is to be in- tiorari. In each town there are justices' courts, Aicted : and also has exclusive original cog; having jurisdiction general of personal acnizance of all civil causes of adıniralty and tions when the amount in controversy does maritime jurisdiction, including all seizures not exceed 50 dollars, and the title to landa ender the laws of import, navigation, or trade does not come in question. There is also in of the U. S., where the seizures are made on the city of New-York the Superior Court, hav. waters navigable from the sea by vessels of ing the same powers generally as the Common ten or more ions burthen within its district, as Pleas courts, with this addition : that however als) upon the high seas ; saving to the suitors large the amount in controversy may be, causes in all cases the common law remedy where it cannot be removed from it to the Supremo is competent. It has also original jurisdiction Court before judgment. of all seizures on land or other waters than In the city of New York is also the Marine those above mentioned, made under the laws Court, having the same jurisdiction as the jus of the U. S., and of all suits for penalties and tices' courts : also jurisdiction in such cases to forfeitures incurred under those laws. It has the amount of 100 dollars, and in all coutro. also cognizance, concurrently with the stale versies between sailors and the inisieis of courts and the circuit courts, of all cases where ships. an alien sues for a tort only ir violation of the In addition to these courts, are the general aw of nations or a treaty of the U. S. : also and secial sessions in each county, for the
trial of crimes. (See 4th book as to the limi. of the state. tations of their power).
There is no Ecclesiastical Court in the state ; The surrogale of each county is also consti- the powers of such courts, so far as they relalo tuted a court, and has cognizance of all mat- to the estates of deceased persons, are executed lers concerning the estates of deceased per. by the surrogate : so far as they concern dinons.
vorces, are executed by the Court of Chance Courts Martial are also appointed annually ry. (See the Revised Statutes of New York) in the manner directed by law for the militia
OF THE PUBLIC COURTS OF COMMON LAW
We are next to consider the several species and distinctions of courts of justice, which are acknowledged 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 uni. versatly 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 and equity.
The policy of our ancient 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 course of justice flowing in large streams from the [*31 ] 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 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 to that which was established in the Jewish republic by Moses. In Mexico each town and province had its 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 (a). Peru, according to Garcilasso de Vega (an historian descended from the ancient Ineas of that country), was divided into small districts containing ten fainilies 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. Ton hundreds constituted the largest division, consisting
(a) Mad. Un. Hist. XXxvii. 469.
of a thousand families ; and each division had its separate judge or magistrate, with a proper degree of subordination (6). 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 jurisdic
tions ; upon these accounts (amongst others) it has happened that [ *32] *these petty tribunals have fallen into decay, and almost into ob
livion ; whether for the better or the worse, may be matter of some speculation, when we consider on the one hand the increase of expense and delay, and on the other the more able 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.
1. 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 Cokę (d), 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 (e), that the proceedings might be the more speedy, as well as public. But the etymology given us by a learned modern writer (f) 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 ; and its jurisdiction extends to administer justice for all commercial injuries done in that very fair or market, and not in any preceding one. 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. The court hath cognizance of all mat
ters of contract 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 (g). From this court a writ of error lies, in the nature of an appeal, to the courts at Westminster (k); which are now also bound by the statute 19 Geo. III. c. 70, to issue writs of execution, in aid of its process, after judgment, where the person or effects of the defendant are not within the limits of this inferior jurisdiction; which may possibly oc
(b) Mod. Un. Hist. xxxix. 14
(f) Barrington's observnt. In the stat. 337
casion tne revival of the practice and proceedings in these courts, which are now in a manner, forgotten. The reason of their original 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 its process, or execute its judgments, on both, or perhaps' either of the parties; and therefore unless this court had been erected, the complainant 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 (i) : the one is a customary court, of which we formerly spoke (k), 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 anciently called (1): for that it is held be. fore 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 freeholders' court, was composed of the lord's tenants, who were the pares of each other, and were bound by their feodal tenure to assist their lord in the dispensation of domestic justice. This was formerly held every three weeks; and its most important business is to determine, by writ of right, all controversies relating to the right of lands within the manor. It may also hold plea of any personal actions, of debt, trespass on the case, or the like, where the debt or damages do not amount to forty shillings (1); which is the same sum, or [*34 ] three marks, that bounded the jurisdiction of the ancient Gothic courts in their lowest instance, or fierding-courts, so called, because four were instituted within every superior district or hundred (m). But the proceedings on a writ of right*may be removed into the county-court by a precept from the sheriff called a tolt (r), “ quia tollit atque eximit causame curia baronum (6).” And the proceedings in all other actions may be removed into the superior courts by the king's writs of pone (p), or accedas ad curiam, according to the nature of the suit (9). After judgment given, a writ also of false judgment (n) lies to the courts at Westminster to rehear and review the cause, and not a writ of error ; for this is not a court of record : and therefore in some of these writs of removal, the first direction given is to cause the plaint to be recorded, recordari facias loquelam.
III. A hundred-court is only a larger court-baron, being held for all the inhabitants of a particular hundred instead of a manor. The free suitors are here also the judges, and the steward the registrar, as in the case of court-baron. It is likewise no court of record ; resembling the former in (1) Co. Litt. 58.
(0) 3 Rep. pref. (&) Book 2, ch. 4, ch. 6, and ch. 22.
(p) Sec Append. No. I. 63.
(9) F. N. B. 4. 70. Finch. L. 444, 445. (m) Stiernook, de jure Goth. l. 1, c. 2. () F. N. B. 3, 4. See Append. No. I. 92.
(1) Finch. 248.
(1) F.N. B. 18.
(1) All the freeholders of the king were the more obvious explanation of the courtcalled barons ; but the Editor is not aware that baron, that it was the court of the baron or 11 appears from any authority that this word lord of the manor, to which his freeholden was ever applied to those who held freeholds owed suit and service. In like manner, ne of a subject. See an account of the ancient say the king's court, and the sheriff's court. barons, ante 1 book, 399. n. 5. It seems to be Vol. II.
(4) See Hov. n. (4) at the end of the Vol. B. III.