Blackstone’s Commentaries with Notes of Reference (1803)

St. George Tucker

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 cooperate; 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,1 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 ma retake my goods if I have a fair and peaceable opportunity, this power of recaption does not debar me from my action of trover of 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 option: if I do not distrain my neighbors 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 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.2 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 the medium by which he administers the laws, are derived from the power of the crown.3 For whether created by act of parliament, letters patent, or prescription, (the only methods of erecting a new court of judicature4) the kings 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 has 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.5 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,6 and therefore no other court has authority to fine or imprison; so that the very erection of a new jurisdiction with power of fine or imprisonment makes it instantly a court of record.7 A court not of record is the court of a private man, whom the law will not entrust 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 40 s; nor of any
forcible injury whatsoever, not having any process to arrest the person of the defendant.8

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 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 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.9 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 constitution10) unless by special license under the king’s letters patent.11 This is still the law in criminal cases. And an idiot cannot to this day appear by attorney, but in person;12 for he has not discretion to enable him to appoint a proper substitute: and upon his being brought before the court in so defenseless 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.13 But, as in the Roman law “cum olim in usu fuisset, alterius nomine agi non posse; sed, quia hoc non minimam incommoditatem habebat, coeperunt homines per procuratores litigare.” 14 so with us, upon the same principle of convenience, it is now permitted in general, by diverse ancient statutes, whereof the first is statute West. 2. 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 in 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. 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 practice 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 superior court of record. So early as the statute 4 Hen. 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 statutes15 have laid them under farther regulations.

OF advocates, or (as we generally call them) counsel, there are two species or degrees; barristers, and sergeants. The former are admitted after a considerable period of study, or at least standing, in the inns of court;16 and are in our old books styled 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,17 they might be called to the state and degree of sergeants, or servientes ad legem. How ancient and honorable this state and degree is, the form, splendor, and profits attending it, have been so fully displayed by many learned writers,18 that they need not be here enlarged on. I shall only observe, that sergeants at law are bound by a solemn oath19 to do their duty to their clients: and that by custom20 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. 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 sergeant, was Sir Francis Bacon, who was made so honoris causa, without either patent or fee;21 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.22 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; in which restriction they agree with the advocates of the fisc:23 but in the imperial law the prohibition was carried still farther, 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 in private suits between subject and subject.24 A custom has of late years prevailed of granting letters patent of precedence to such barristers, as the crown thinks proper to honor with that mark of distinction: whereby they are entitled to such rank and pre-audience25as 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 general26) 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 sergeants and barristers indiscriminately (except in the court of common pleas where only sergeants are admitted) may take upon them the protection and defense of any suitors, whether plaintiff or defendant; who are therefore called their clients, like the dependants upon the ancient Roman orators. Those indeed practiced gratis, for honor merely, or at most for the sake of gaining influence: and so likewise it is established with us,27 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 counselor cannot demand without doing wrong to his reputation:28 as is also laid down with regard to advocates in the civil law,29 whose honorarium was directed
by a decree of the senate not to exceed in any case ten thousand sesterces, or about 80£ of English money.30 And, in order to encourage due freedom of speech in the lawful defense 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 honorable professions) it has been held 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.31 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.32

Blackstone’s Footnotes (Tucker’s notes not yet added)

     1.    ch. 1.
     2.    Co. Litt. 58.
     3.    See book 1. ch. 7.
     4.    Co. Litt. 260.
     5.    Ibid.
     6.    Finch. L. 231.
     7.    Salk. 200. 12 Mod. 388.
     8.    2 Inst. 311.
     9.    Pope Boniface VIII, in 6 Decretal. l. 3. t. 16. § 3. speaks of “procuratoribus, qui in aliquibus partibus attornati nuncupantur“.
   10.    Stiernhook de jure Goth. l. t. c. 6.
   11.    F. N. B. 25.
   12.    Ibid. 27.
   13.    Bro. Abr. t. idiot. I.
   14.    Inst. 4. tit. 10.
   15.    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.
   16.    See vol. introd. § 1.
   17.    de LL. c. 50.
   18.    Fortesc. ibid. 10 Rep. pref. Dugdal. Orig. Turid. To which may be added a tract by the late sergeant Wynne, printed in 1765, entitled, “observations touching the antiquity and dignity of the degree of sergeant at law.”
   19.    2 Inst. 214.
   20.    fortefe. c. 50.
   21.    See his letters. 256.
   22.    See his life by Roger North. 37.
   23.    Cod. 2. 9. 1.
   24.    Cod. 2. 7. 13.
   25.    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 practitioners. 1. The king’s premier sergeant, (so constituted by special patent.) 2. The king’s ancient sergeant, or the eldest among the king’s sergeants. 3. The king’s advocate general. 4. The king’s attorney general. 5. The king’s solicitor general. 6. The king’s sergeants. 7. The king’s counsel, with the queen’s attorney and solicitor. 8. Sergeants at law. 9. The recorder of London. 10. Advocates of the civil law. 11. Barristers. In the court 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.
   26.    Seld. tit. hon. 1. 6. 7.
   27.    Davis pref. 22. 1. Chan. Rep. 38.
   28.    Davis. 23.
   29.    Ff. 11. 6. 1.
   30.    Tac. ann. l. 11.
   31.    Cro. Jac. 90.
   32.    Raym. 376.