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Book III: Of Private Wrongs · Chapter 3 · first edition pages 22-29 · about 10 minutes

Of Courts in General

Section headings, the boxes marked "Added by the editor" and the reading list at the end are not part of Blackstone's text. Everything else is Blackstone's, from the Oxford first edition, with the long s printed as a modern s.

Redress by suit in court

The next, and principal, object of our enquiries is the redress of injuries by suit in courts: wherein the act of the parties and the act of law co-operate; 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 chapter1, 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, tough 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 nusance by my own authority, or call upon the law to do it for me: I may distrein for rent, or have an action of debt at my own option: if I do not distrein my neighbours cattle demage-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 ministred 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.

The nature 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 administred2. And, as by our excellent constitution the sole executive power of the laws is fested 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 crown3. 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 hath appointed a prodigious variety of courts, some with a more limited, others with a more extensive jurisdiction; some constituted to enquire 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 contrary5. 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 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 dignity6, and therefore no other court hath 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 record7. 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 thereiin 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 defendant8.

Parties to a suit

In every court there must be at least three constituent parts, the actor, reus, and judex: the actor, or plainsiff, 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 it's officers to apply the remedy. It is also usual in the superior courts to have attorneys, and advocates or counsel, as assistants.

Attorneys

An attorney at law answers to the procurator, or proctor, of the civilians and canonists9. 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 licence under the king's letters patent11. This is still the law in criminal cases. And an idiot cannot to this day appear by attorney, but in person12; for he hath not discretion to enable him to appoint a proper substitute: and upon his being brought before the court in so defenceless 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 suggest13. But, as in the Roman law "cum olim in usu???, alterius nomine agi nom posse, sed, quia hoc non minimam incommoditatem habebat, coeperunt homines per procuratores litigare14," so with us, upon the same principle of convenience, it is now permitted in general, by divers antient 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 practise 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.

Counsel: barristers and serjeants

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 court16; and are in our old books stiled 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 Fortescue17, they might be called to the state and degree of serjeants, or servientes ad legem. How antient and honourable this state and degree is, the form, splendor, and profits attending it, have been so fully displayed by many learned writers18, that they need not be here enlarged on. I shall only observe, that serjeants 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 Wstminster are always admitted into this venerable order, before they are advanced to the bench; the original of which was probably to qualify the puisne barons 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 fee21; 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 II22. 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 licence; in which restriction they agree with the advocates of the fife23: 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. A custom has of late years prevailed of granting letters patent of precedence to such barristers, as the crown thinks proper to honour with that mark of dictinction: whereby they are intitled 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 serjeants and barristers indiscriminately (except in the court of common pleas where only serjeants 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 sake of gaining influence: and so likewise it is established with us27, 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 counsellor cannot demand without doing wrong to his reputation28: as is also laid down with regard to advocates in the civil law29, whose honorarium was directed by a decree of the senate not to exceed in any case ten thousand festerces, or about 80 l. of English money30. And, in order to encourage due freedom of speech in the lawful defence of their clients, and at the same time to give a cheek to the unseemly licentiousness of prostitute and illiberal men (a few of whom may sometime insinuate themselves even into the most honourable professions) it hath been holden 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 cuase in hand, he is then liable to an action from the party injured31. 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 insficted for gross misdemesnors in practiceh..

The original and more to read

Blackstone's notes

  1. 1. ch. 1.
  2. 2. Co. Litt. 58.
  3. 3. See book 1. ch. 7.
  4. 4. Co. Litt. 260.
  5. 5. Ibid.
  6. 6. Finch. L. 231.
  7. 7. Salk. 200. 12 Mod. 388.
  8. 8. 2 Inst. 311.
  9. 9. Pope Boniface VIII, in 6 Decretal. l. 3. t. 16. §. 3. speaks of "procuratoribus, qui in aliqulbus partibus atornati mancupanter."
  10. 10. Stiernhook de jure Goth. l. t. c. 6.
  11. 11. F. N. B. 25.
  12. 12. Ibid. 27.
  13. 13. Bro. Abr. t. ideot. I.
  14. 14. Inst. 4. tit. 10.
  15. 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. 16. See vol. introd. §. 1.
  17. 17. de LL. c. 50.
  18. 18. Fortese. ibid. 10 Rep. pref. Dugdal. Orig. Turid. To which may be added a tract by the late serjeant Wynne, printed in 1765, intitled, "observations touching the antiqaity and dignity of the degree of serjeant at law."
  19. 19. 2 Inst. 214.
  20. 20. fortese. c. 50.
  21. 21. See his letters. 256.
  22. 22. See his life by Roger North. 37.
  23. 23. Cod. 2. 9. 1.
  24. 24. Cod. 2. 7. 13.
  25. 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 parctisers. 1. The king's premier serjeant, (so constituted by special patent.) 2. The king's antient serjeant, or the eldest among the king's serjeants. 3. The king's advocate general. 4. The king's attorney general. 5. The king's solicitor general. 6. The king's serjeants. 7. The king's counsel, with the queen's attorney and solicitor. 8. Serjeants 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. 26. Seld. tit. hon. 1. 6. 7.
  27. 27. Davis pref. 22. 1. Chan. Rep. 38.
  28. 28. Davis. 23.
  29. 29. Ff. 11. 6. 1.
  30. 30. Tac. ann. l. 11.
  31. 31. Cro. Jac. 90.
  32. 32. Raym. 376.