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368 Review: Coote's Practice of the Ecclesiastical Courts, with Forms and Tables of Costs.

to the offices in which the business is transacted.

In the composition of a work on the practice of these courts we should have preferred that the task had fallen into the hands of one of the older practitioners; but as it has not suited the leisure or convenience of any of them to encounter the labour, we are glad that it has been undertaken by Mr. Coote, one of the junior proctors; and we shall proceed to advert to the scope of his work,-in the Preface to which, it is stated, that

"The principles which regulate the judicial practice of the Ecclesiastical Courts have, in their older form, been illustrated by Clerke, Conset, and Oughton; the latter of whom has also annexed to his work some formular precedents, which have long since, however, become obsolete and impracticable.

"With this solitary exception, (if, indeed, it be such,) there is not, as far as I am aware, any publication either of early or recent date, which has been conceived upon the plan of the present compilation, and it was the consideration of this deficiency which prompted me to make the first step toward supplying it by a selection of such modern and approved precedents as would embody and elucidate the general principles of ecclesiastical practice.

and from this part of his work we extract the following passages as illustrative of his style and manner :—

"The establishment of these courts was in

this country of considerable later date than in almost any other state of Europe. On the continent they had been in active operation ever since the reign of the Emperor Theodosius, the younger, to whom must be ascribed their first legalization. But even before that age the separation of the Christian body from the nation at large, which still adhered to paganism in almost all material points, both in practice and opinion, had occasioned many peculiar ques tions in which their faith might be in some degree compromised or implicated, to be treated upon and determined by their own assembly under the supervision of the higher priesthood, and without the intervention of the ordinary civil tribunals of the state. This, we have every reason to regard as the first germ of the Eccle siastical Jurisdiction, an authority peculiar to, and perhaps co-existent with, Christianity itself, and to which it is impossible to find an exemplar or analogy in any pagan state of an. tiquity.

The

*Whilst in England these courts, as we shall afterwards see, owe their ostensible birth to a sudden and fortuitous introduction of foreign usages and principles of law; on the continent, they had been the gradual and spontaneous product of opinions deducible from and con"The peculiarity, therefore, which I claim nected with the dogmas and traditional pracfor the following pages will, I trust, assist to tices of the Christian religion itself. excuse the faults which will be found in them, church, as a governing power, possessed, siand suggest to the candid reader, who is not multaneously with the authority of inflicting a ignorant of the difficulties which attend the private penance for the more secret offences of adoption of a new method, an indulgence for a minor grade, a corresponding jurisdiction to any imperfection of information, or crudeness impose a public admonition and censure on of remark, which the scrutiny of a critic may offenders of a glaring and scandalous characdetect. and to the exercise of the latter of these powers we owe the criminal processes of the church pro salute animæ, or for the reformation of moral excesses. In the same manner, the circumstance of marriage being regarded in the light of a sacrament or sacramental rite, necessarily placed it, together with all circumstances connected therewith, entirely under the control of the church.

"In making the assertion, however, that the method which I have pursued forms the peculiarity of these pages, I mean only to express that no complete or general compilation on this subject has yet been submitted to the judgment of the public.

"In the lucid and excellent sections on Practice which have appeared in the new edition of Burn's Treatise on the Ecclesiastical Law,' by Dr. Robert Phillimore, the same plan has been followed; though, owing to the range of the work being too wide to allow the amplification of any single department, they are necessarily on a small and limited scale. If the learned and talented Editor had extended his plan so as to embrace all the phases of practice discernible in the Ecclesiastical Courts, there would have been no necessity for the present compilation, and I should have unhesitatingly suppressed the materials which I had collected

for it."

There is a very ample introduction, occupying upwards of a hundred pages, in which the author treats very learnedly and historically of the jurisdiction of the courts;

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"This jurisdiction being, therefore, native and inherent, received at the hands of Theodosius no more than a general confirmation and support. But from the simple text of the Codex Theodosianus, by which the bishops are pronounced to be the proper judges in all cases, quoties de religione agitur,' the Ecclesiastical Jurisdiction received a liberal amplification in succeeding ages, through the voluntary concessions of the civil government; for the church subsequently acquired a complete power of adjudication, not only over the conduct of clerks, its own revenues, and marriages, but also over the breach of faith in sworn compacts or prothe accessory questions of dower and alimony, mises, the validity or invalidity of last wills, the enforcement of legacies, and the administration of a deceased person's property.

Review: Coote's Practice, &c.-Proposed Investment of Trust Monies.

369

"This was the condition of the continental stated. Next come the description of Ecclesiastical Courts at the epoch of the acces- criminal suits against laymen and clerks, sion of the Norman conqueror to the throne of and the citations, articles, mode of taking England; and they had already excited the evidence, sentence, &c.

jealousy and awakened the late repentance of the secular authorities, with whose jurisdiction In treating of civil suits, Mr. Coote, 1st, they on many occasions clashed and were suctakes ecclesiastical causes, viz., defamation, cessfully competed. In the words of a great with the citation, proxies, libel, and eviFrench antiquary describing their state at the dence, the sentence, penance, &c.; 2nd, time-Curiæ Christianitatis amplissima fuit perturbation of seat in a parish church, the jurisdictio, cum questionum et causarum om- citation, libel, &c.; 3rd, subtraction of nium quæ non modo res ecclesin sed et sacra- church-rate; 4th, suits to recover penalties menta, et quidquid ex eis dubietatis oriretur, for non residence under 1 & 2 Vict. c. 106; spectant, cognitionem sibi arrogâsset.' 5th, grant of faculty.

"Nothing of this kind was to be seen in England, at the time of the Norman conquest. Matrimonial causes are then treated of: The Anglo-Saxon common law never recog- 1st, divorce for adultery, including alimony, nised the principle of a separate civil or criminal pendente lite; 2nd, divorce for cruelty; jurisdiction, as exercised by the church, though, 3rd, jactitation of marriage; 4th, restitu either out of respect to the sacred character of tion of conjugal rights; 5th, nullity of its members or from a sense of their superior learning and intelligence, it had certainly ad- marriage by reason of impotence; 6th, mitted the Episcopal order to a participation in nullity by reason of former marriage; 7th, the municipal judicature of the country. For nullity by reason of insanity or imbecility; ever since the introduction of Christianity into 8th, nullity of marriage under 4 Geo. 4, England, the bishops had sat to hear causes in c. 76. the county court, in conjunction with the ealdorman or his sheriff."

Mr. Coote next treats of Testamentary causes-1st, the course of proceeding

The divisions of Ecclesiastical Jurisdic- therein; 2nd, subtraction of legacy; 3rd, tion are thus stated :

fuse probate or letters of administration.

The general practice is then stated, comprising letters of request and service, forms of answers, mode of compelling the attendance of witnesses, forms of interrogatories and taking evidence, commissions to examine witnesses, publication of depositions, &c.

interest causes; 4th, inventory and account; 5th, distribution of intestate's per"As regards the scheme of Ecclesiastical sonal estate; 6th, suit to permit a bond to Jurisdiction, England is separated into the two provinces of the Archbishops of Canterbury be sued on; 7th, citation to accept or reand York, and these again, for the purposes of immediate control, are subdivided into the dioceses of the respective bishops of the Established Church. In addition to the latter, there are also the jurisdictions of the deans and chapters of the cathedral churches, and of the archdeacons, besides the peculiars, which admit of no regular classification. The matter of the Ecclesiastical Jurisdiction, which is the subject of this compilation, belongs, in all its branches, in the first instance, to the consistorial courts of the archbishops and bishops. The Prerogative Court of the Archbishop of Canterbury is confined to the testamentary questions of the province, and the Arches' Court of Canterbury is only appellate.

"The courts of the deans and chapters have exclusive jurisdiction over matrimonial suits arising within their precinct, but now interfere with little else.

"From the Arches and Prerogative Courts of Canterbury, as also from the corresponding courts of the province of York, the appeal lies to her Majesty the Queen in council.'

The compulsory execution of sentences and proceedings in contempt are next set forth; and lastly the author treats of Appeals.

PROPOSED INVESTMENT OF TRUST
MONIES WITHOUT THE AID OF
COUNSEL AND SOLICITORS.

AMONGST the projects of the late session, a bill was introduced, bearing the names of Mr. Hope, Lord Courtenay, and Mr. Walpole, to facilitate the Investment of Trust Monies in the Improvement of Land. It recited that

Mr. Coote then describes the proceedings in criminal suits against clerks, under the 3 & 4 Vict. c. 86: Ist, by commission of inquiry; and 2ndly, by letters of request be given for the permanent improvement of It is expedient that further facilities should to the Arches Court. The notices, articles, land: And that there may be now or heremode of proceeding, and forms are fully after in the hands or standing to the account of the trustees of a settlement, will or codicil, monies produced by the sale or received for

b " Ducange, sub voc. Curiæ Christianitatis."

of any counsel or solicitor, to make an order to confirm such report; and thereupon the trustees, guardians or committees concerned, shall be for ever fully released from all liability or responsibility on account of or concerning the application of any such sums.

370 Proposed Investment of Trust Monies.—Public Record Buildings on Rolls' Estate. equality of exchange of settled landed éstates | such sums have been properly expended, and under a power of sale or exchange, or under upon the report being duly filed according to trusts for sale in such settlement, will or codicil the practice of the court, then it shall be lawful contained, or stocks or securities purchased for the court, without requiring the attendance with such monies, and which monies are liable to be laid out in the purchase of other lands, to be settled to the same or the like uses, or upon and for the same or the like trusts and purposes as the estates from the sale or exchange of which such monies were produced, and there may be now or hereafter in the hands or standing to the account of the trustees of a settleAlthough this bill was withdrawn, soon ment, will, or codicil, monies the produce of after it was introduced we consider it settled estates sold compulsorily or otherwise, important to call the attention of our for the purposes of a railway or other public readers to its provisions. It concerns the work or undertaking, or other monies, stocks public as well as the profession, and apor securities liable to be laid out or employed pears to be the first occasion (except an in the purchase of lands; and it may happen abortion one of Lord Brougham) on which that the said monies, stocks or securities respectively may be advantageously laid out or an attempt has been made expressly to employed in the permanent improvement of supersede the services of counsel and solands remaining unsold or in settlement: And licitors and let in the evil of unqualified that there may be now or hereafter in the hands practitioners, which it has hitherto been or standing to the account of trustees or guar- the object of the legislature to exclude. It dians for infants or others under legal disability, is manifest that the persons who would put or in the hands or standing to the account of the committees of persons of unsound mind,

this act into operation could not do it themselves; they must employ some agent to monies, stocks or securities, which may be advantageously laid out or employed in the perassist them, who, under the promise of manent improvement of the lands of such in- charging less than a solicitor, would lead fants, persons of unsound mind, or others them into difficulties and generally into under legal disability. It was then proposed greater expense. by the bill, that trustees (with the consent of Here is another instance of the introducany person beneficially interested, in possession, tion into parliament of pernicious measures if of full age), guardians, or committees, might just at the close of the session. In this case apply to the Court of Chancery, by petition pray; it was promptly stopped, but there ought to ing that they may be authorized to lay out and

expend money in the permanent improvement be a standing order that no law bill should of any land vested in or intrusted to them to be be brought in later than the first week after advanced out of any such trust monies, stocks Easter, without the special leave of both or securities. houses.

in

PUBLIC RECORD BUILDINGS ON
THE ROLLS' ESTATE.

And that, upon the presentation of any such petition as aforesaid, it shall be lawful for the said court, without requiring the attendance of any counsel or solicitor, to refer it to one of the Masters of the said court to make all necessary and proper THE Sixth Report of the Commissioners quiries, and to consider all such evidence, for the Improvement of the Metropolis has that the government have determined to just been published, from which it appears build the various depositories, rooms, and able public records of the kingdom. The offices required for the safety of the invaluplans of the building and the site of the Rolls' estate have been approved by the Master of the Rolls.

estimates, and valuations as shall be produced before him in relation to the matter of such petition, and to report whether in his opinion it will be beneficial to all persons interested that the projected improvements or any part thereof should be made, and whether the sum or sums of money in the petition mentioned, or any part thereof, should be advanced.

The approaches to this important building will be connected with the general imAfter providing for the confirmation of the provement of the metropolis by a large Master's report, it was then proposed to central avenue from the north side of St. enact, That after any sum shall have been Paul's. The new opening from Piccadilly so advanced such trustees or guardians or committees may apply to the said court, for to Long Acre will be extended to Carey a reference to one of the Masters, to as- Street. That street will be widened, and certain that the same have been properly ex- a new street extended eastward to join the pended; and upon a report being made that intended improvements in the city. These

Public Record Buildings on the Rolls' Estate.

371

give to Mr. Pennethorne all the information in his power.

approaches are not finally arranged, but Cole, who was directed by Lord Langdale to the record building, which is the first great step in the measure, seems settled and determined.

The following is the report :

"Your Majesty's commissioners were informed by Mr. Richard Lambert Jones, that a plan for the formation of a street intended as a "The Viscount Morpeth, chief commissioner central communication between the eastern and of your Majesty's Woods and Forests, having, western divisions of the metropolis, that is to as chairman of this commission, submitted, by say, between the great leading thoroughfares of the request of your Majesty's Secretary of Ludgate-hill, Fleet-street, and the Strand on the State for the Home Department, certain plans south, and Snow-hill and Holborn on the which had been prepared by Mr. Pennethorne north,-had been under the consideration of under his direction for the building of a the London Bridge Approaches' Committee two Record Office, and for making the neces-years ago; but that improvements in prosary approaches thereto,-together with a me-gress, and contemplated in other parts of the morandum as to the practicability and expe- city, had subsequently led to its suspension. diency of effecting these objects, in con- The line then proposed, commencing at the nection with the appropriation of a portion western extremity of Cheapside, and extending of the Rolls' Estate in Chancery-lane,-your to the site of the late Fleet-Prison, would have Majesty's commissioners have taken these passed over Farringdon-street by a bridge, and plans, with the accompanying memorandum, would have terminated at the city boundary in into their consideration; and having heard Fetter-lane, with a branch extending north into evidence thereupon to the extent which the Holborn, nearly opposite to Furnival's Inn. Of terms of their commission were deemed to jus- the line proposed by Mr. Pennethorne, (to which tify, they now humbly beg leave to report to your Majesty's commissioners will refer hereaf your Majesty the result. ter,) though not identical with the line above adverted to, Mr. Richard Lambert Jones expressed a favourable opinion. He considered that the line exhibited in plan No. 2, would, if slightly altered, be at least as good as any which could be devised and he thought it probable that, if the Commissioners of her Majesty's Woods could effect arrangements with the Corporation of London, by which the appropriation of the coal duties to purposes of metropolitan improvements could be placed upon an amended footing, the authorities of the city would, out of any funds which might then be placed at their disposal, at once undertake to form the portion within their own boundary. Mr. R. L. Jones further stated it to be his opinion, that whatever difficulties might impede the comple tion of the whole plan No. 2, including the entire communication east and west of Fetterlane, the execution of the more limited plan No, 1, as proposed by Mr. Pennethorne. comprehending the space between Fetter-lane and Chancery-lane, would of itself effect a great improvement.

"The plans laid by Viscount Morpeth before this commission were four in number; two showing the site of the proposed building and the intended approaches thereto, and proposing, in connexion with that site and those approaches, the execution of a line of street to form a main central thoroughfare between the eastern and western divisions of the metropolis; the remaining two exhibiting the general arrangement and disposition of the interior of the building, and the space proposed to be made available for its intended purposes.

"Your Majesty's commissioners were in formed that plans Nos. 3 and 4 had, in reference to the points immediately above-mentioned, received the approval of Lord Langdale, the Master of the Rolls. Into the fitness, therefore, or the applicability of those plans to all the requirements of a depository for public records they did not deem it incumbent upon them to inquire minutely. Their attention was directed, in the first place, to the plans which have been devised for improving the communications in the vicinity of the proposed site; "From the evidence of Mr. Henry Cole, your and, secondly, to the capacity and eligibility of Majesty's commissioners were enabled to inthe site itself: having reference not only to the form themselves respecting the several buildexigencies of the present time, but to any pro-ings in which the public records are at present bable demand for the enlargement of the building within the next century.

"In directing their attention to the matters falling more especially within their own province, your Majesty's commissioners examined Mr. Richard Lambert Jones, the chairman of the London Bridge Approaches' Committee; Mr. Henry Cole, one of the assistant keepers of the Records, acting, it is understood, on this occasion, with the permission of the Master of Rolls; and Mr. Pennethorne, the professional adviser of the commissioners of your Majesty's Woods upon all questions of metropolitan improvement, who had also on this occasion been proceeding in communication with Mr. Henry

deposited. No one of these buildings, according to the evidence adduced before this commission, appears to have any special aptitude for the purposes to which it is applied; and in some instances it may be stated that they are decidedly unfitted to those purposes. Partly from want of space, and partly from apprehension of fire, the reception of the more modern and current class of records is understood to have been suspended; and from these and other causes, the expense of lodging, maintaining, and protecting the records which are in charge, is stated to be from 1,500l. to 2,000l. per annum.

"Your Majesty's commissioners are in

372

Public Record Buildings on the Rolls' Estate.

formed by Mr. Henry Cole, that the plans of end of Newgate-street; and, widening the

Mr. Pennethorne having reference more imme- north side of that street, would have terminated diately to the accommodation of those records, in Cheapside. The plan which has been subhave been prepared in communication with the mitted for the especial consideration of your Master of the Rolls, from measurements fur- Majesty's commissioners, differs from the fornished by Mr. Henry Cole himself, and in mer plan in some essential particulars :-it digreat measure under his own immediate super- verges southwards from Long Acre into Careyvision:-that he considers them to present street, Lincoln's-inn; traverses the north side the best means of providing for the pressing of the Rolls Estate into Fetter lane; and proexigencies of the present period, looking to the ceeds thence (in a line nearly identical with one difficulty which the crowded state of the metro- proposed by Mr. Bunning, the City Surveyor) polis must interpose to the accomplishment of by a bridge over Farringdon-street; passing by any plan upon a fitting scale and of more ex- the Sessions House Old Bailey, and Newgate tensive dimensions:-and that the Master of Market, to the west-end of Cheapside. the Rolls had very carefully inspected these plans, had suggested alterations while they were in progress, and, he had every reason to believe, had at length signified his approval.

"Your Majesty's commissioners believe that they are justified in inferring from the same evidence, that in the selection of a site for the proposed building, the Master of the Rolls is of opinion, that preference should be given to the immediate neighbourhood of the Inns of Court, and as far as possible, both on grounds of convenience and of economy, to the appropriation of the Roll's Estate, or some portion of it, to that purpose.

"Your Majesty's commissioners are informed, that the division southwards of the line of street from Lincoln's-inn Fields and Newsquare, Lincoln's-inn, has been proposed by Mr. Pennethorne, in consequence of communications with the Benchers of Lincoln's-inn and with the trustees of Lincoln's-inn Fields, held two years ago in reference to plans framed for other purposes, and not proceeded with in consequence of the opposition which would have arisen in parliament, if any portion of that locality had been affected.

"Your Majesty's commissioners are also informed, that a further object of Mr. Pennethorne, in diverting that portion of the line extending from Carey-street to Fetter-lane, was to render available for the purposes of the Record Office the largest possible portion of the Rolls Estate; and, at the same time, in conformity with the recommendation of Mr. Braidwood, and the requirements of the Master of the Rolls, to provide, in the isolation of that building, an additional means of security against fire.

"From the evidence of Mr. Henry Cole, your Majesty's Commissioners were informed that the space which the records now in charge would occupy in any building provided for that purpose, would be 160,000 cubic feet; that if the Welch and other records not at present actually in charge were added to that collection, these requirements would be increased to 225,000 cubic feet; and that, looking at the probably increased deposits within the next century, there would be a further addi- "The portion east of Fetter-lane is repretion of not less than 200,000 cubic feet re-sented by Mr. Pennethorne as being a slight quired within that period, making a total of modification of that proposed by Mr. Bunning, 425,000 cubic feet for the deposit of records so as to unite Mr. Bunning's general line alone. The requirements for access and ventilation, however, it is represented to your Majesty's commissioners, would considerably exceed that amount. It would involve, in Mr. Henry Cole's opinion, the appropriation of a space amounting to about 3,000,000 cubic feet for all purposes. Assuming that such extent of space could be provided, Mr. Henry Cole is of opinion, looking to portions of the estate which would still be unappropriated, that the probable exigencies of the next 100 years would be amply met by the proposed arrange

ments.

with his own.

"Mr. Pennethorne is of opinion, that the line now submitted to your Majesty's commissioners, in plan No. 2, would, as a thoroughfare, compared with the line proposed to the Select Committee of 1838 on Metropolitan Improvements, afford an equally advantageous channel for the general traffic of the town; while it would be more effective in relieving the present excessively crowded traffic of the Strand, and would present more convenient means of communication between the Record Office and the Courts of Law, in the event of those courts being ever erected in the same locality.

"Mr. Pennethorne produced before your Majesty's commissioners a plan which he informed them had been prepared in the year "Your Majesty's commissioners, as they 1834,-had been submitted by him to a com- have already intimated, did not feel it incummittee of the House of Commons, and in part bent upon them to examine Mr. Pennethorne, appended to their report in 1833,-and had, in as to the details of plans Nos. 3 and 4. Incicertain portions, and to a limited extent, been dentally, however, in reference to the question already executed. Proceeding eastwards from of a subsequent extension of the building, they Long Acre, the line of thoroughfare then pro- think it right to notice, that the walls, accordposed by Mr. Pennethorne would have passed ing to his plans, would be built of sufficient along the south side of Lincoln's-inn Fields; thickness to carry another story, whenever reacross New-square and Fetter-lane; over Far-quired; and that the building might, at a ringdon-street by a bridge; thence to the west-future time, be extended over the site of the

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