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mony: which rolls are called the records of the court, and are of such higa and super-eminent 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 con trary (e) (3). 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 (4). But, if there ap pear any mistake of the clerk in making up such record, the court will di rect him to amend it.3 All courts of record are the king's courts, in right of his crown and royal dignity (ƒ), and therefore no other court [*25] hath authority to fine or imprison; so that the very erection of a

new jurisdiction with the power of fine or imprisonment makes it instantly a court of record (g) (5). 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 in. jury 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 auother, 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 (1). This is still the law in criminal cases (6). And an

(e) Co. Litt. 260.

(f) Finch. L. 231.

(g) Salk. 200. 12 Mod. 388.

(h) 2 Inst. 311.

(i) Pope Boniface VIII. in 6 Decretal, l. 3, t. 16,

♦ 3, speaks of "procuratoribus, qui in aliquibus
partibus attornati nuncupantur."

(k) Stiernhook de jure Goth. 1. 1, c. 6
(2) F. N. B. 25.

record, is triable only by a jury. 5 East, 473.

(5) But every court of record has not necessarily a power to fine and imprison. I 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. Chance. ry, C. 2.

(3) 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 coluzion. 1 Anst. 8. 3 Ves. & B. 42. And third persons who have been defrauded by a collu sive judgment may shew such fraud, so as to prevent themselves from being prejudiced by it. 2 Marsh. 392. 7 Taunt, 97. 13 Eliz. c. 5. (4) But an Irish judgment, though one of The court of chancery in New-York is now a court of record. 2 R. S 276, 1 & id 168, § 1.

(6) This is not universally so, for in prose. cutions and informations for misdemeanors, especially in the court of king's bench, a de fendant may, and usually does, appear and plead by his attorney or cleik in court. 1 Chitty's Crim. Law. But an autorrey has no right

(3) See Hov. n. (3) at the end of the Vol. B. III.

idiot ca.mot to this day appear by attorney, but in person (m), for he hath not discretion to enable him to appoint a proper substi- ["26} tute; and upon his being brought before the court in so defenceTess 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 no mine agi non posse, sed, quia hoc non minimam incommoditatem habebat, coepe runt homines per procuratores litigare (o)," so with us, upon the same principle of convenience, it is now permitted in general, by divers ancient sta tutes, 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 o 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 (7). No man can practice 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 practice in the court of common pleas; nor vice versa. 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. 46. no person shall act as an attorney at the court of quarter sessions, but such as has been regularly admitted in some supe rior 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 ad mitted but such as were virtuous, learned, and sworn to do their duty. And many subsequent statutes (p) have laid them under farther regula tions.

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 (9); and are in our old books *styled apprentices, appren- [*27] ticii 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 ancient 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 () to do their duty to their

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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 ba rons of the exchequer to become justices of assise, according to the exigence of the statute of 14 Edw. III. c. 16. 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 hing 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 ad[*28] vocates were not permitted to be at all concerned in private

suits between subject and subject (2). 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 ancient 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

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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 honorarium was directed by a decree of the senate not to exceed in any case ten thousand sesterces, *or about 801. 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.
(e) Ff. 11. 6. 1.
(f) Tac. ann. l. 11.

(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 clients case or neglected to attend to it, he was liable to be sued. See Vin. Ab. 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.

(12) The circumstances which led to this decree, as recorded by Tacitus, deserve to be mentioned. Samius, a Roman knight of disinction, having given Suilius a fee of three thousand guineas to undertake his defence, and finding that he was betrayed by his advocate, ferio in domo ejus incuburt. In consequence of this the senate insisted upon enforcing the Cincian law, quá cavetur antiquitùs, requis ob causam orandam pecuniam donumve accipiat.

(g) Cro. Jac. 90.

(h) Sir T. Raym. 376.

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 cominon traffic; for Tacitus introduces the subject by observing, nec quidquam publica mercis tam venale fuit quam advocatorum perfi dia. To the honour of our courts the corrup tion 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.

(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.

(14) The courts of the U. S. are the Supreme, the Circuit, and the District Courts; their jurisdiction is limited by the constitution, Art. 3, Section 22. But Congress has not vested in them all the power that it might under the constitution, and they have only such jurisdiction as Congress may choose to confer. (Id. ◊ 2).

By the law of 1789, ch. 20, (1 Story's Laws U. S. 58, 13), the Supreme Court has exclusive jurisdiction of all controversies of a civil nature where a state is a party, except between a state and its citizens, and except also between a state and citizens of other states or aliena; in which latter case it has original, but not exclusive, jurisdiction: it has also exclusive jurisdiction of all suits against ambassadors or other public ministers and their domestics; and original, but not exclusive

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 In New-York the right of counsel and of physicians to ie for their fees is fully recog

Dized.

jurisdiction of suits by ambassadors or other public min sters, or in which a consul or a vice-consul is a party. It has also appellate Jurisdiction from the Circuit Courts, in civil actions brought there originally, or removed there from the state courts, or by appeal from a district court, when the matter in dispute exceeds 2,000 dollars: (id. 60, 22): and from the highest state courts when there has been drawn in question the validity of a treaty or a statute of, or an authority exercised, under the U. S. and the decision below has been against its validity or there has been drawn in question the validity of a statute of, or an authority exercised, under any state, on the ground of their being repugnant to the consti tution, treaties, or laws of the U. S. and the decision below has been in favour of the va. lidity of such state law or authority: or where the decision below has been against a right claimed under any clause of the constitution of the U. S. or of a treaty, or statute of, or commission held under, the U. S. (Id. p. 61, 25.)

This is the highest court in the country, and may be considered the highest and most august in the world, for the controversies even of states may be determined by it, and it may declare unconstitutional, and therefore void, the acts of those states, and even the acts of Congress.

The Circuit Court is next in rank: it has original jurisdiction, concurrently with the state courts, of all civil suits where the matter in dispute exceeds 500 dollars, and the U. S. are plaintiffs, or an alien is a party, or the suit is between a citizen of the state where the suit is brought and a citizen of another state. It has exclusive jurisdiction of all crimes and offences cognizable under the authority of the U. S. except when specially other wise provided; and concurrent jurisdiction with the district courts of the crimes and of fences cognizable therein. (Id. 57. § 11). It nas also appellate jurisdiction from the district court. (Id).

The District Court has jurisdiction, exclusively of the state courts, of all crimes and of fences cognizable under the authority of the U. S. committed within its district or upon the high seas, where no other punishment than whipping not exceeding thirty stripes, a fine not exceeding 100 dollars, or a term of imprisonment not exceeding 6 months, is to be inflicted and also has exclusive original cog; nizance of all civil causes of adiniralty and maritime jurisdiction, including all seizures ander the laws of import, navigation, or trade of the U. S., where the seizures are made on waters navigable from the sea by vessels of ten or more tons burthen within its district, as also upon the high seas; saving to the suitors in all cases the common law remedy where it is competent. It has also original jurisdiction of all seizures on land or other waters than those above mentioned, made under the laws of the U. S., and of all suits for penalties and forfeitures incurred under those laws. It has also cognizance, concurrently with the state courts and the circuit courts, of all cases where an alien sues for a tort only in violation of the aw of nations or a treaty of the U. S.: also

of all suits at common law where the U. S sue. and the matter in dispute amounts to 100 dollars. It also has jurisdiction, exclusively of the state courts, of all suits against consuls or vice-consuls, except for offences above the description above mentioned. It also has a concurrent jurisdiction in suits of common law, where the U. S. or any officer thereof, un der any act of congress, sue, although the amount is under 100 dollars. (Id. 1531, 4).

In addition to these there are also Courts Martial, and Naval courts, for the armny and navy.

In the state of New-York the highest court is the Court of Errors, consisting of the senate, the chancellor, and the judges of the Supreme Court: it is also the court for the trial of impeachments. In no case, except the trial of impeachments, has it original jurisdiction. A writ of error from the decisions of the Supreme Court lies to this court, and then the justices of that court merely assign the reasons of their decision without voting. An appeal lies to it from the decision of the chancellor, and then he merely assigns his reasons for his decision without voting. No other matters come before this court.

The chancellor has the same equity powers as the chancellor in England: appeals also lie to him from the decisions of the vice-chancellors, and in some cases from the decisions of surrogates.

The Supreme Court has jurisdiction in all common law cases. It is aided in practice, almost entirely relieved from the trial of causes, as the circuit judges try issues of fact in all civil common law causes; and with two of the judges of the county courts, are the judges in the court of Oyer and Terminer. The circuit judges are also the vice-chancellors of their own circuit, and appeals lie to them in some cases from the surrogates of their counties.

In the first circuit, including the city of New-York, the offices of vice-chancellor and of circuit judge are distinct.

Courts of Common Pleas are appointed for each county, and have cognizance of all local actions within their country, and of all transitory actions and of appeals from the justices' courts: except in the city of New-York, where the decisions of the justices' courts are reviewed by the Superior Court for the city on a certiorari. In each town there are justices' courts, having jurisdiction general of personal actions when the amount in controversy does not exceed 50 dollars, and the title to lands does not come in question. There is also in the city of New-York the Superior Court, having the same powers generally as the Common Pleas courts, with this addition that however large the amount in controversy may be, causes cannot be removed from it to the Supreme Court before judgment.

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In the city of New-York is also the Marine Court, having the same jurisdiction as the jus tices' courts: also jurisdiction in such cases to the amount of 100 dollars, and in all coutroversies between sailors and the misters of ships.

In addition to these courts, are the general and s ecial sessions in each county, for the

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