298 ART. III. — THE LAW OF FEES AND COSTS. (No. 2.) IN a former article we considered the law of fees and costs, in its most comprehensive sense, as embracing the whole burthen of the administration of justice, whether borne by the state or by private individuals. And we traced it historically, in the practice of the continental nations, from the dawn of Roman and German civilisation to modern times. We have now to turn our attention to our own country and its dependencies. Our colonial empire is of such unparalleled magnitude, and has been subjected to the crown in so many different ways, by settlement, by conquest, by treaty, and by voluntary submission, that we cannot expect to find in its judicial arrangements any uniformity of system. The basis of those arrangements is, in some of our possessions, the law of England, in others the French, Spanish, Dutch, Italian, or even the Mahometan or Hindoo law; the foreign legislations having generally been modified by our own, and these again by local usages and customs. To survey the whole sphere of these dependencies of the empire is a labour beyond our powers. We may, however, in a future article, endeavour to make such a selection as will serve to illustrate the general subject. Let us pass at present to the third branch of our proposed investigation, which comprises the practice of our own country at different periods of its history. To our Saxon ancestors such a thing as a judicial establishment can hardly be said to have been known; for we hear of neither judge, registrar, nor summoner. In the Hallmote the thane's reeve or steward served both for registrar and judge. The hundred courts, borough courts, and shire courts, seem to have been popular assemblies, advised, rather than controlled, in administering justice, by certain individuals of superior rank and knowledge. "Let the shiremote (says Canute, A. D. circ. 1020) be held at least twice in the year; and let the bishop and the alderman be there, the one to explain to the people the law of God, the other the law of the world." The alderman, as his name implies, was probably at first an elder thane, or person of consideration, chosen by the assembly, or named by the king, to preside. Afterwards his office became hereditary, in the person of an earl or superior thane, who took, as his assessor or deputy, a man more skilled than himself in the law, under the title of Shire-Reeve, or Sheriff; and hence the County Court came to be called the Sheriff's Court, or Tourn. There were certainly no advocates in these courts; attornies there probably were, but merely private individuals, who neither constituted a legal profession, nor could they have any right to fees, otherwise than by mere private agreement. In short, the burthen of administering justice in the Saxon courts was almost wholly personal; for we know of no fund from which either judicial or ministerial officers could have been compensated, except the fines, which were largely inflicted, as we have seen they used to be among the ancient Romans and Germans. The most remarkable of these fines was the Wergild. Every man was estimated at a certain were, or value, which varied at different times and places. We have a curious law of King Æthelstan, about the year 930, which estimates a husbandman in Mercia at 200 shillings, a thane as equal to six husbandmen, and a king as equal to six thanes. Sometimes the whole were was imposed, and sometimes a part, as a composition for bodily punishment. Thus a law of Canute, A. D. 1016, punishes perjury with the amputation of the hand, but allows the hand to be redeemed by paying half the individual's were. Again, by a law of Edmund, about A. D. 940, a man who had killed another might redeem his own life by paying first the healsfang or redemption of his own neck; then, after a certain period, the manbote, or compensation for the person slain; and lastly, at the end of another period, the were, or estimated value of himself. Fines are directed, in these laws, to be paid sometimes to the king, sometimes to the bishop, the earl, or the hundred. By the above-mentioned law of Æthelstan, which he declares to be the folkright or common law of England, a king's wergyld is fixed at 30,000 thryms (a coin of uncertain value), of which 15,000 were to go to the royal family, and 15,000 to "the people of the land," meaning, probably, those who attended the mote, at which the penalty was imposed. But the Norman conquest was the dawn of a regular system of judicature. William himself adopted two measures pregnant with the most important consequences to the forms of the subsequent procedure. He separated the spiritual from the temporal jurisdiction, and he made the sheriff a king's officer. The first of these institutions soon led to a regular judicial establishment in the ecclesiastical courts, and the latter to the institution of the Curia Regis, the first great step towards centralising and rendering uniform the administration of the temporal law. The canons, although they had not yet been digested into one body, contained many provisions for the guidance of judges, advocates, and witnesses, taken chiefly from the Roman civil law. The Courts Christian therefore (as they were called) were soon organised, and in the great outlines of their constitution may be presumed to have served as models for the king's court. The laws now extant, under the names of William I. and Henry I. are indeed of doubtful authority, and slight importance; and we willingly pass over, as irrelevant to our purpose, the Saxon ordeal, the Norman duel, and the compurgation common to both. But when we come down to the reign of Henry II. we find a new light spread over our whole jurisprudence. Glanvil, our first law writer, then appeared, to whom (or at least to the chief justice of that name) we are probably indebted for the many and great improvements of the law which took place in his time. The Tractatus de Legibus Anglia was written about the year 1187, between thirty and forty years after the publication of the Decretum, and when the study both of the civil and canon law was already in high repute throughout Europe, and particularly in England. It opens with a direct quotation from Justinian; and its contents, together with those of Bracton in the following century, fully justify the assertion of Reeves, "that the civil and canon laws were not confined (at that time) to the ecclesiastical courts, where they were professedly the only rules of decision, but interwove themselves into the municipal law, and furnished it with helps towards improving its native stock;" and we concur with that estimable writer in the wish, "that the early connection of our law with the civil and canon law were more fully investigated, than it has yet been." Judicial establishments were now completely organised. The Curia Regis, with its dependency the Exchequer, and the Bench (or Common Pleas), were established, and the Chancery, for the formation of writs, had acquired a separate existence, at least as an office, if not as a Court: the admirable institution of justices itinerant was devised, to bring justice home to the doors of the suitors, and the Commune Concilium was avowedly maintained as a check on any inordinate power of the Crown. "In populo regendo," says Fleta, superiores habet (Rex), ut Legem, per quam factus est Rex, et Curiam suam, videlicet Comites et Barones." 1 The judges were paid by salaries, and sworn to take no gratuities from private individuals, "exceptis esculentis et poculentis pro uno die, et non ultra."2 They held their offices, however, only at the Sovereign's will. 66 In the King's Courts were various officers, exercising commemorative functions, as in the Common Pleas, Clerici Prænotarii et Cursarii, et Cyrographarii. Some of these held their offices "de feodo," and in virtue thereof received fixed sums for certain acts. The word feodum, therefore, was applied first to the office, and secondly to the sum claimed by virtue of the office; and in this latter sense it is the origin of our modern word fee, which has received so much more extensive a signification. The officers exercising coercive functions, under the various titles of summonitores, marescalli, ballivi, virgatores, servientes, clamatores, &c., were also paid fixed sums for certain acts. Thus the marshal might arrest a debtor, and keep him one night before he delivered him over to the Fleet Prison; and for this his due was half a mark.3 Some of these officers also held their offices "de feodo," others not.* A legal profession was now formed, in all its branches. "In Curiâ Regis sunt servientes, narratores, attornati, et apprenticii." The word "serviens" was manifestly applied to two very different classes of persons. The "serjeauntes 1 Fleta, i. 17. 2 Id. ibid. 3. Id. ii. 30. ser des justices en eyre 1," were executive officers, like the “ geantz d'armes 2," or the "serjans de l'espée," of the old Norman coustumier (A. D. 1315). The "serviens ad legem," (Chaucer's "sergiant at law, ware and wise,") is mentioned by Bracton (about A. D. 1250) as being sometimes commissioned as a judge, and is noticed, A. D. 1340, as "serjant le roi jurrée," assigned, in default of a justice of the bench, to take assizes.3 It has been doubted whether the narratores formed a different class from the servientes. Probably they were pleaders who counted (as it was called) orally in Court, without having been sworn to serve the King, answering nearly to the barristers of the present day. These latter, indeed, are generally supposed to be meant by the word apprentiti; but as Fleta places the apprentitii after the attornati, he would seem to allude to a class of persons more like the present articled clerks to attornies. The attornati seem to have been so named from attending at the sheriff's tourn, and are noticed by Glanvil, under the name of responsales, as put in the place of other men, to answer for them, "ad lucrandum vel perdendum." A freeman was allowed to do suit to the County Court, &c., by attorney, A. D. 1236.1 Afterwards other acts were so allowed; and hence the vicarious performance of them became gradually an occupation; and by the statute of Carlisle, limiting the admission of attornies to the chancellor and chief justices, it was raised to the rank of a profession. Still the remuneration of their services, as well as those of the other legal advisers and assistants, was left entirely to private arrangement. The administration of justice was, in those times, so far from being a burthen to the government, that a large part of the royal revenue was made up of forfeitures and sums paid under the various names of Fine, Redemption, Occasion, and above all Amercement. The original meaning of the word "Fine" was the end of a controversy by means of a concord of the parties. Thence it came to signify, secondly, the concord itself; thirdly, the sum paid for the king's permission to effect it; and lastly, any sum paid to a superior authority in 1 Stat. 3 Ed. I. c. 30. 3 Stat. 14 Ed. III. s. 1. c. 16. 2 Stat. 13 Rich. II. s. 1. c. 16. 4 Stat. 21 Hen. III. c. 10. |