a new juriſdiction with power of fine or imprisonment makes it inſtantly a court of record[1]. 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 exigence 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 40s; nor of any forcible injury whatſoever, not having any proceſs to arreſt the perſon of the defendant[2].
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 ſatisſaction 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.
An attorney at law anſwers to the procurator, or proctor, of the civilians and canoniſts[3]. 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 con- fUtution[4]) unleſs by ſpecial licence under the king's letters patent[5]. This is ſtill the law in criminal cafes. And an idiot cannot to this day appear by attorney, but in perfon[6]; for he hath not diſcretion to enable him to appoint a proper ſubſtitute: and
g Salk. 200. 12 Mod. 388. h 2 Inſt. 311. i Pope Boniface VIII, in 6 Decretal. l. 3. t. 16. §. 3. ſpeaks of "procuratoribus, qui in aliquibus partibus atornati nuncupantur." k Stiernhook de jure Goth. l. 1. c. 6. l F. N. B. 25. m Ibid. 27.
