Bench, or to the next assizes. Another branch of his office is to inquire concerning shipwrecks, and certify whether there be wreck or not, and who is in possession of the goods. Concerning treasuretrove, he is also to inquire who were the finders, and where it is, and whether any one is suspected of having found and concealed a treasure; and, if so, to attach him, and hold him to bail upon the suspicion.

The coroner acts ministerially as the sheriff's substitute; for, when just exception can be taken to the sheriff for suspicion of partiality (as that he is interested in the suit, or of kin to either plaintiff or defendant), the process must be awarded to the coroner instead of the sheriff, for execution of the King's writs.

Justices of the Peace. - The next species of subordinate magistrates are the justices of the peace, the principal of whom is the custos rotulorum, already mentioned. The Lord Chancellor or Keeper, the Lord Treasurer, the Lord High Steward of England, the Earl Marshal, the Lord High Constable of England (when any such officers are in being), and all the justices of the Court of King's Bench (by virtue of their offices), and the Master of the Rolls (by prescription), are general conservators of the peace throughout the whole kingdom, and may commit all breakers of it, or bind them in recognisances to keep it; the other judges are only so in their own courts. The sheriff and coroner are conservators of the peace within their own county, and either of them may take a recognisance or security to keep it. Constables, tithing-men, and the like, are also conservators of the peace within their respective jurisdictions, and may apprehend actual breakers of the peace, and either detain them to prevent a further breach, or bring them before a justice to inquire, commit, or take bail to answer for the past offence.

The ancient conservators of the peace were appointed in various ways, and were often chosen by the general body of freeholders of the county; but their duties were ministerial, and rather resembled those of modern constables than of justices of the peace, whose office originated in the reign of Edward III. The latter are appointed by the King's commission under the great seal, the form of which was settled by the judges in 1590. This appoints them jointly and severally to keep the peace, and any two or more of them to inquire of and determine felonies and other misdemeanors; in which number some particular justices, or one of them, are directed to be always included, and no business is to be done without their presence, the words of the commission (when in Latin) running thus, “quorum aliquem vestrum A, B, C, D, &c., unum esse volumus," whence the persons so named are usually called justices of the quorum. Formerly it was customary to appoint only a select number to be of the quorum; but now the practice is to repeat the names of all over again in the quorum clause, excepting, perhaps, some one person for the sake of form; and no exception is now allowable for not expressing in the form of warrants, &c., that the justice who issued them is of the quorum. When any justice intends to act under this commission, he sues out a writ of dedimus potestatem from the clerk of the Crown in Chancery, empowering certain persons therein named to administer the usual oaths to him, after which he is at liberty to act. The only qualification seems to be that required by statute

5 Geo. II. c. 11., which makes it necessary that every justice shall have lands to the value of 100l. per annum clear of all deductions; if he act without such qualification, he shall forfeit 1007. The office of these justices is determinable 1st, By the demise of the Crown; that is, in six months after. But, if the same justice be put in commission under the new monarch, he shall not be obliged to sue out a new dedimus or to swear to his qualification afresh; nor, by reason of any new commission to take the oaths more than once in the same reign. 2nd, By express writ, under the great seal, discharging any particular person from being any longer justice. 3rd, By a writ of supersedeas, which suspends the power of all the justices, but does not totally destroy it, as it may be revived again by another writ, called a procedendo. 4th, By a new commission, which virtually, though silently, discharges all the former justices that are not included therein; for two commissions cannot subsist at once. And, 5th, By accession of the office of sheriff, which suspends that of justice.

The power, office, and duty of a justice of the peace depends on his commission, and on the several statutes which have given them jurisdiction in particular matters. His commission empowers him singly to preserve the peace; and, thereby, gives him all the power of the ancient conservators at the common law in suppressing riots and affrays, in taking securities for the peace, and in apprehending and committing felons and other inferior criminals to prison to take their trial. It also empowers any two or more to hear and determine all felonies and other offences, which is the ground of their jurisdiction at sessions; but this we shall treat of more fully when we come to that court.

Constables are of two sorts, high or hundred constables, and petty constables. The former originated in the Statute of Winchester, and are appointed at the court leets of the franchise or hundred over which they preside, or, in default of that, by the justices at their quarter sessions (which is now the usual way); and are removable by the same authority that appoints them. The petty constables are inferior officers of immemorial antiquity in every township, subordinate to the high constable of the hundred. Their office is not distinguishable at this day from that of headborough, borseholder, or tithing man. They are likewise chosen by the jury at the court leet, or, if no court leet be held, appointed by two justices of the peace.

The general duty of all constables, both high and petty, is to keep the King's peace in their several districts; and for that purpose they are armed with considerable powers of arresting and imprisoning, of breaking open houses, and of maintaining the peace by forcible means. Other duties have been from time to time superadded by

statute.

CHAPTER IV. COURTS OF JUSTICE, PROCEDURE THEREIN,

&c.

HAVING thus briefly specified the officers employed in the administration of justice, we come next to the courts. In England, justice is always administered publicly; and a court of justice, by the common law of the land, is an open court, with no other restriction than those which order, decency, and the due administration of justice, may require. No court of justice can be created but by the King's commission, and there are some, as courts of equity, which cannot now be created by the mere authority of the Crown. In the old courts, which have existed from time immemorial, this origin is presumed, though no record of it now remains, and though there may be reasonable historical evidence that it never in fact existed. The creation of a new superior court by the sole prerogative of the King would, however, be attended with considerable difficulty at the present time; but the erection of inferior ones of known jurisdiction according to the course of the common law, such as a leet or a civil court within a borough, could, it is apprehended, be even now effected without difficulty where no subsisting statute precludes it, and no public or private rights are injured. As it is by the King, as head of the executive, that courts are established, so it is from him that they are considered as deriving their authority. The judges are his representatives, and an offence offered to them is a contempt of his authority.

Some courts have only a criminal, some only a civil, jurisdiction, others both. Some are superior courts, others inferior: the superior courts are the courts of general jurisdiction, as all the courts at Westminster; also the courts of assize, oyer and terminer, and similar sessions; the courts of counties palatine; the ecclesiastical courts at Doctors' Commons, and some other courts, of which the jurisdiction is limited as to matter or locality. The inferior courts are, amongst others, county courts, courts of conscience, courts baron, and borough courts. Some, again, are courts of record; others not. A court of record is one in which the record of the proceedings (which is kept in all courts) is of such high authority, that no evidence will be admitted in contradiction to it as between the parties to that record; and the record itself is enrolled in parchment, and deposited in public archives for perpetual memorial. The courts of equity never enrol their proceedings of record, and are therefore not held to be courts of record.

- Every court is provided with apparatus for the discovery of controverted facts, for the application of the law to those facts, and for enforcing the judgment pronounced thereupon. It has, in addition, officers to record its proceedings; to issue its process; and to execute it; and it admits the intervention of certain recognised agents to carry on the proceedings between litigant parties, who though they may not be strictly its officers, are, to a certain extent, under the control of its judges, to whom they are amenable in a summary way for miscon

duct and malpractice. To this class of persons, whose business it is to advance the ends of justice by securing to each party before the court a full hearing and a most satisfactory discussion of their relative claims and merits, belong counsel, solicitors, attorneys, and proctors. It is the duty of the three latter classes to receive their client's instructions, collect the necessary evidence, and conduct the case through the formal part of the proceedings. They then lay it before counsel, who apply the law to the facts, and, on the hearing, attend at the bar of the court, examine witnesses, and urge such arguments either of law or fact as the case may admit in support of their clients. Attorneys. All attorneys of the superior courts, before they can be admitted to practice, must serve a clerkship of a certain length. It is then necessary for them to undergo an examination by a board of examiners appointed for the purpose; upon their admission, which is made by a formal entry on the rolls or books of the court, they become, in all respects relating to their professional duties subject to its authority and control. In a case of extreme misconduct, the court in which they are admitted will cause them to be struck off the rolls; after which they can no longer legally practise in it. When admitted to practise in the Court of Chancery, they are termed solicitors. The corresponding officers of the ecclesiastical and admiralty courts are called proctors.

Barristers, strictly speaking, are not officers of the courts. It is perhaps in the discretion of the judges to permit whom they please to practise in their respective courts; but long established custom sanctions the admission of none but such as are members of one of the Inns of Court.* It is in these that the ceremony of calling to the bar takes place, after which the admission to practise in court is a matter of course. The only qualification required for being called, is, that the candidate should have kept a certain number of terms. Hitherto five years have in all cases been necessary, unless the candidate were of the degree of M. A. of one of the universities, in which case three were sufficient; by a late regulation, however, in some of the inns, any member may be called at the end of three years, if then of the age of twenty-five. No examination is now required, except in one. The terms are kept by the student's dining a certain number of times in the hall of the inn to which he belongs. If a barrister misconduct himself in the course of his profession, he may, it would seem, be silenced by the judge of the court in which he appears, and is subject to certain pains and penalties now disused. He may also, for good reason, be disbarred by the society of which he is a member.

Barristers, hitherto, have been divided into two degrees: utter barristers (now called, simply, barristers) and serjeants-at-law. Serjeants are sworn to do their duty to their clients; a duty which is equally incumbent on a barrister under the degree of serjeant, though not expressly required of him on admission. It is the practice to

* The Inns of Court, of which there are four, viz. the two Temples, Lincoln's Inn, and Gray's Inn, are not chartered or incorporated, but private societies, in existence as early as the 13th century, for the education of lawyers, and over which the judges have a control as visiters. Originally, attorneys, as well as barristers, seem have belonged to them; they are now confined to the latter.

to

admit the judges to this order on their elevation to the bench. From the most eminent of these some are usually selected to be the King's counsel and King's serjeants, the two principal of whom are called his Attorney and Solicitor-General; the King's counsel have precedence, and a place within the bar, as it is termed, immediately in front of the bench; but this advantage may be given by royal patent without being one of the King's counsel. The Queen has also her Attorney and Solicitor-General, who sit with the King's counsel.

The number of practising barristers at present resident in London may perhaps be estimated at upwards of 1,000; attorneys are far more numerous, and, including country practitioners, amount to many thousands.

Barristers do not now, as formerly, practise indiscriminately in all the courts; the common law courts have one bar; the courts of equity another, which seldom interfere with each other. Others are not in the habit of appearing in any court, but are employed in drawing settlements, conveyances, and other instruments. These are termed Conveyancers. For this purpose, however, though usual, it is not essential, to be called to the bar.

The judicial functions differ in the different courts; in some, the same person is at once judge of law and fact; in others, the cognisance of law and fact is divided between a judge and a jury; the judge deciding matters of law, the jury matters of fact. The courts of equity, the ecclesiastical and the admiralty courts, which are framed upon the model of the Roman civil law, are of the first description; the common law courts of the latter. For this reason we shall defer speaking of the judges, until we come to speak of the courts in which they respectively preside.

Courts of Law. Sir W. Blackstone divides the courts of justice in England into such as are of a public and general jurisdiction throughout the whole kingdom, and such as are only of a limited jurisdiction in certain parts of it. Of the former, there are, 1st, the courts of common law; 2dly, the Privy Council; 3dly, the courts of equity; 4thly, the Court of Bankruptcy; 5thly, the Court for the Relief of Insolvent Debtors; 6thly, the ecclesiastical courts; and, 7thly, the courts maritime.

1. The principal permanent Courts of Common Law are, the House of Peers, the Court of Chancery in one of its departments, the Exchequer Chamber, the Court of King's Bench, the Court of Common Pleas, and the Court of Exchequer.

The House of Peers possesses at once a civil and a criminal jurisdiction; as a court of the former description, however, it is a court of appeal or error only. In criminal cases it has, moreover, jurisdiction to try high offences and misdemeanors upon impeachment by the Commons, and also treasons or felonies committed by persons having privilege of peers. The Court of King's Bench is a court both of civil and criminal jurisdiction; as a criminal court, however, it has no original jurisdiction, except over offences committed in the county in which it sits for the time being, and misdemeanors brought before the court by criminal information. The courts of Common Pleas and Exchequer have a civil jurisdiction only.