Page images
PDF
EPUB

of his cunning and discretion. 2. To advise for the king's honour, and good of the public, without partiality, through affection, love, meed, doubt, or fear. 3. To keep the king's council secret. 4. To avoid corruption. 5. To help and strengthen the execution of what shall be there resolved. 6. To withstand all persons who would attempt the contrary ; and lastly, in general, to observe, keep, and do all that a good and true councillor ought to do to his sovereign lord.

The power of the Privy Council is to inquire into all offences against the government, and to commit the offenders to safe custody, in order to take their trial in some of the courts of law. But their jurisdiction does not extend to the punishment of the culprit, but merely to make inquiry, and be is entitled to his habeas corpus. In plantation and admiralty causes which arise without the jurisdiction of the kingdom, and in matters of lunacy or idiocy, being a special flower of the prerogative, although they may eventually involve questions of extensive property, the privy council still continues to have cognizance, being the court of appeal in such cases, or rather the appeal lies to the king's majesty himself in council. Whenever questions arise between two provinces in America, or elsewhere, concerning the extent of their charters, or the like, the king in council exercises original jurisdiction, on the principles of the feudal sovereignty. And, likewise, when any person claims an island or a province in the nature of feudal principality, by grant from the king or his ancestors, the determination of that right belongs to his majesty in council ; and from all the dominions of the crown, excepting Great Britain and Ireland an appellate jurisdiction in the last resort is vested in the privy council, which usually exercises its judicial authority in a committee of the whole council, who hear the allegations and proofs, and afterwards make their report to his majesty in council, by whom the judgment is finally given.

Abstracted from their honorary precedence, the privileges of privy councillors consist principally in the security which the law has given them against attempts and conspiracies to destroy their lives. By statute 3d Hen. VII. c. 14, if any of the king's servants, of his household, conspire or imagine to take away the life of a privy councillor, it is felony, even although no attempt be made. But the statute 9th Anne, c. 16, goes farther, and enacts, that if “ any person shall unlawfully attempt to kill, as-sault, strike, or wound any privy councillor in the execution of his office, shall be a felon, without benefit of clergy.” This statute was made in consequence of the daring attempt of the Sieur Guiscard to stab Mr Harley with a pen-knife, when under examination by the privy council.

Privy councillors have honorary precedence next after knights of the garter. The dissolution of the privy council depends entirely on the king's pleasure, and he may, whenever he thinks proper, discharge any particular member, or the whole council, and appoint another. Formerly it was

dissolved, ipso faclo, on the king's demise, as deriving its whole authority from him. But now, to prevent the inconvenience arising from there not being any council in being at a new accession, it was enacted, 6th Anne, that the privy council shall continue for six months after the demise of the crown, unless sooner determined by the successor.

Such, says a late writer, are the duties and privileges of the privy council; and whoever duly reflects, that, upon their wisdom, diligence, and integrity, the interests and happiness of the whole kingdom very much depend, will see the propriety of our public petition, “ that God would be pleased to bless the lords of the council, and all the nobility, with grace, wisdom, and understanding." *

OF COURTS IN GENERAL.

The wrongs and injuries which men commit upon each other are various and grievous, even in the most civilized states; and these would be still more numerous, were it not for the salutary restraints of human laws. Such wrongs and injuries are either of a civil or of a criminal nature, Under the former description may be reckoned any species of trespass, nuisance, waste, subtraction, or disturbance, and likewise all kinds of injuries proceeding from, or affecting, the crown.

Under the latter are comprised all offences against God and religion ; against the law of nations; against public justice; against the public peace; against public trade; against the public health and economy; against the persons, habitations, and property of individuals. Our limits will not admit of treating specifically of these several denominations of civil and criminal offences. But this is the less necessary, inasmuch as every description and modification of offence is a breach of one or other of the Ten Commandments ; which teach us our duty towards God, and our duty towards our neighbour. We have no occasion to refer to law-books to ascertain how we ought to act one towards another; for the work of the law is written in every man's heart, his conscience also bearing him witness. And if any man will but do unto others upon all occasions as he would they should do unto him under similar circumstances, he will never suffer any thing from the laws of England, which are constantly stretched forth to protect him. It is sufficient then to remark, that “ the law is not made for a righteous man, but for the lawless and disobedient;" that is, only such are amenable to its tribunals, and liable to its penalties. “ It

* Blackstone's Commentaries, -Custance on the Constitution.

must needs be that offences must come.” There will always be the offenders and the offended : but it is the voice of reason as well as of revelation, that no man ought to decide in his own cause; and it is the language of the inspired volume, that “ if one man sin against another, the judge shall judge him.” Every well-regulated government has its courts of law, in which persons duly qualified and authorized preside, for the administration of justice. The institution is of divine appointment ; “ Judges and officers shalt thou make thee in all thy gates, which the LORD thy God giveth thee, throughout thy tribes : and they shall judge the people with just judgment.” (Deut. xvi. 18.)

A court is defined to be “a place where justice is judicially administered.” The king is the sole executer of the laws, and it follows, that all the courts of justice within the realm derive their power and authority from him alone ; his consent to their existence being at all times either expressed or implied. The law always contemplates the king's presence, in all his courts, by a sort of fiction, but as that is in fact impossible, he is represented there by his judges, whose power is merely 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 noticed and described in their respective places ; and I shall here only mention one distinction that runs through them all: that is, that some of them are courts of record and 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. These 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. 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, and no other court has any authority to fine and imprison. A court not of record, is that of a private man, whom the law will not intrust with any discretionary power over the liberty and fortunes of his fellow subjects. The courts-baron in every manor, and other inferior jurisdictions, where the proceedings are not recorded or enrolled, are courts not of record. 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 cannot hold pleas of matters cognizable by the common law, unless they be under the value of 40s., nor of any forcible injury whatsoever ; because they have not any process to arrest the defen

dant's person.

In every court there must be at least three constituted parts. The Plaintiff, who complains of an injury done ; the Defendant, who is called upon to make satisfaction for the injury ; and the judicial power which is to examine into the fact, determine the law arising upon it, to ascertain whether any injury has been done, and by its officers to apply the remedy. In the higher courts the usual assistants are attorneys, and advocates, or counsel.

An attorney at law, is one who is put in the place, stead, or turn of another, to manage his matters of law for him. Formerly every suitor was obliged to appear in person, to prosecute or defend his own cause ; which is still the law in criminal cases. An idiot cannot appear by his attorney, because he has not discretion to enable him to appoint a suitable person in his stead. He must therefore appear in person, and the judge is bound to take care of bis interest ; and admit the best plea in his behalf that any one in court can suggest. No one can practise as an attorney in any court, but in that of which he is sworn an attorney ; and as he enjoys many privileges in that court, so he is also peculiarly subject to the censure and animadversion of its judges. To enable an attorney to practise in the court of chancery, it is necessary that he be admitted a solicitor therein. And none can act as attorneys at the quarter sessions, but such as have been regularly admitted into some superior court of record : and attorneys are subjected to various other regulations, by different statutes. So early as the reign of Henry IV. (4. c. 18.) it was enacted, that all attorneys should be examined by the judges, and none be admitted but such as were virtuous, learned, and sworn to do their duty.

Advocates, or, as they are commonly called, counsel, are of two degrees, barristers and sergeants. The former are admitted, after a considerable period of study and standing, in the inns of court; and are in all the old law books styled apprentices, being looked upon merely as learners, and not qualified to execute the full office of an advocate till they were of sixteen years' standing ; at which time they may be called to the honourable state and degree of sergeants. Sergeants at law are bound by a solemn oath to do their duty to their clients with fidelity and discretion.

His majesty's two principal counsel, are the attorney-general and solicitor-general, who may be either barristers or sergeants. The king's counsel cannot be employed in any cause against the crown, without special license; hence they cannot publicly plead in court for a prisoner, or a defendant in a criminal prosecution, without license, but which is never refused. In obtaining it, however, an expense of nine pounds is incurred.

A custom bas of late years prevailed, of granting letters patent of precedence to such barristers as the crown thinks proper to honour with that mark of distinction ; whereby they are entitled to such rank and pre-audience 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) 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.

All other sergeants and barristers indiscriminately (except in the court of common pleas, when only sergeants 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 before the ancient Roman orators. These indeed practised gratis for honour merely, or at most for the sake of gaining influence : and so likewise it is established with us, that a counsel can maintain no action for his fees ; which are given as a mere gratuity and not as a salary or hire, and which a counsellor cannot demand without injuring his reputation ; the same is also laid down with regard to the advocates in the civil law, whose honorarium or gratuity was directed by a decree of the Senate not to exceed in any case ten thousand sesterces, or about eighty pounds of English money. And in order 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 licentiousness of venal and illiberal men, (some of whom, who would prostitute their talents and quirements to any cause, will insinuate themselves into the most honourable professions,) counsel are indulged with liberty of speech in defence of their clients, and are not answerable for any matter spoken by them relative to the cause in hand, and suggested in their client's instructions, although it should prove altogether a groundless reflection on another's reputation.

But if they should mention an untruth of their own invention, the injured party may bring his action. By the statute of 3 Edward I., counsel may be punished for collusion and deceit, with imprisonment for a year and a day, and perpetual silence in the courts. But, to the honour of our courts, the corruption of judges and the treachery of counsel are crimes now unheard of in these kingdoms. Indeed the wisdom and integrity of the British courts are justly proverbial.*

COURTS OF COMMON LAW AND EQUITY.

PIEPOUDRE.— The lowest, and at the same time the most expeditious court of justice, known in England, is the court of piepoudre, so called from the dusty feet of the suitors. It is a court of record, incident to

* Custance,- Blackstone.

« PreviousContinue »