Admission.

Oath.

Bench for a mandamus to the archbishop, to issue his fiat to the vicar-general of the province of Canterbury, for the purpose of making out a rescript under the seal of the vicargeneral, commanding the dean of arches to admit Dr. Highmore as an advocate in the Court of Arches. Dr. Highmore had taken his doctor of laws' degree at Cambridge, and the fiat was refused, because he had been admitted into deacon's orders. Lord Ellenborough, C. J., "There ought in all cases to be a specific legal right, as well as the want of a specific legal remedy, in order to found an application for a mandamus. Nothing appears to show that Dr. Highmore has any legal right to what he claims, more than any other of his majesty's subjects, therefore we cannot interfere (n).”

By the statute of the 3 Jac. c. 5, no recusant convict shall practise in the civil law as advocate (o).

2. By 55 Geo. 3, c. 184, every admission of any person to the office of advocate in any ecclesiastical or admiralty court shall be upon a 50l. stamp.

3. He who desireth to be promoted to the office of advocate generally, shall make oath before the diocesan where he was born or doth inhabit, that in the causes he shall undertake he [4] will perform the part of a faithful patron, not to pervert or delay justice to the adverse party, but by defending the cause of his client by law and reason. Also in matrimonial causes and elections he shall not be admitted to plead, unless he will take the like oath particularly therein; nor in other causes before an ecclesiastical judge shall he be admitted for a longer space than three terms without such oath, unless it be in behalf of his own church, or for his lord, or known friend, or for a poor man, a stranger, or person in misery. And all who shall act contrary hereunto, shall be ipso facto suspended from their office, until they shall make competent satisfaction, and shall be otherwise duly punished upon conviction of their offence (p).

general.

And by a constitution of Othobon, no person shall be admitted to be advocate in any cause, unless he shall first produce a certificate of the said oath being made from the diocesan before whom he was sworn, or shall take such oath again(q). [But this practice has been long discontinued.-ED.]

There is a constitution of the same prelate ne clerici advocati sint in causis secularibus (r). [See Dr. Highmore's case, cited above.-ED.]

His Office in 4. "For the furtherance and increase of learning, and the advancement of civil and canon law, it is ordained that no proctor, exercising in any of the archbishop's courts, shall entertain any cause whatsoever, and keep and retain the same for

two court days, without the counsel and advice of an advocate, under pain of a year's suspension from his practice; neither shall the judge have power to release or mitigate the said penalty, without express mandate and authority from the archbishop" (s).

"And no judge in any of the said courts shall admit any libel or any other matter, without the advice of an advocate admitted to practise in the same court, or without his subscription; neither shall any proctor conclude any cause depending, without the knowledge of the advocate retained and feed in the cause; which if any proctor shall do or procure to be done, or shall by any colour whatsoever defraud the advocate of his duty or fee, or shall be negligent in repairing to the advocate and requiring his advice what course is to be taken in the cause, he shall be suspended from all practice for the space of six months, without hope of being thereunto restored before the said term be fully complete" (t).

Inhibitions.

[ 5 ]

5. "No inhibition shall be granted out of the archbishop's In case of court at the instance of any party, unless it be subscribed by an advocate practising in the said court, which the said advocate shall do freely, not taking any fee for the same, except the party prosecuting the suit do voluntarily bestow some gratuity upon him for his counsel and advise in the said cause: the like course shall be used in granting forth any inhibition at the instance of any party by the bishop or his chancellor against the archdeacon, or any other person exercising ecclesiastical jurisdiction. And if in the court or consistory of any bishop there be no advocate at all, then shall the subscription of a proctor practising in the same court be held sufficient" (u). 6. All advocates shall take care that they do not suborn Suborning witnesses by themselves or by any other, or instruct the parties either to suggest what is false, or suppress the truth. And all who shall act contrary hereunto shall be ipso facto suspended from their office, until they shall make competent satisfaction, and shall be otherwise duly punished upon conviction of their offence (v).

Witnesses.

Advocates.

["The ecclesiastical laws, as now existing, have been for Judges and upwards of three centuries administered, in the principal courts, by a body of men associated, as a distinct profession, for the practice of the civil and canon laws.

"Some of the members of this body, in the year 1567, purchased the site upon which Doctors' Commons now stands, on which, at their own expense, they erected houses for the residence of the judges and advocates, and proper buildings for holding the Ecclesiastical and Admiralty Courts, where they have ever since continued to be held. In the year 1768, a royal charter was obtained, by virtue of which the then mem

(s) Can. 130. (t) Can. 131.

(u) Can. 96.

(v) Otho.; Athon. 70.

bers of the society, and the successors, were incorporated, under the name and title of The College of Doctors of Law exercent in the Ecclesiastical and Admiralty Courts.'

"This college consists of a president (the Dean of the Arches for the time being) and of those doctors of law who, having regularly taken that degree in either of the universities of Oxford and Cambridge, and having been admitted advocates in pursuance of the rescript of the Archbishop of Canterbury, shall have been elected fellows of the college in the manner prescribed by the charter.

["From this brief account of the origin, and present constitution, of the college of Doctors of Law, it will be seen that no person can be admitted a member, or allowed to practise as an advocate in the courts at Doctors' Commons, without having first taken the degree of Doctor of Laws in one of the English universities.

"According to the present rules of these courts, a candidate for admission, as an advocate, is required to deliver, into the office of the vicar general of the province of Canterbury, a certificate of his having taken the degree of Doctor of Laws, signed by the registrar of the university to which he belongs. A petition, praying that in consideration of such qualification the candidate may be admitted an advocate, is then presented to the archbishop, who issues his fiat for the admission of the applicant, directed to his vicar general, who thereupon causes a rescript or commission to be prepared, addressed to the Dean of the Arches, empowering and requiring him to admit the candidate as an advocate of that court. To this a proviso is always added, that the person to be admitted shall not practise for one whole year from the date of his admission,' in order that, by attending during that interval, he may acquire a competent knowledge of the form of the proceedings in those courts.

["On the day appointed for the admission, which is always one of the four regular sessions in each term of the Arches Court, the candidate is presented, by the two senior advocates, to the dean, who directs the archbishop's rescript to be read, and the oaths to be administered; which being done, he is admitted into the number of advocates, according to the tenor of the rescript.

["From the college of advocates the archbishop has always selected the judges of the Archiepiscopal Courts" (w).

[By the Church Discipline Act, 3 & 4 Vict. c. 86, s. 7, it is enacted, "that if the bishop's commissioners think there is primâ facie ground for instituting proceedings against a clergyman, articles shall be drawn up against him, which must be signed by an advocate practising in Doctors' Commons." This act is printed at length under the title Privileges and Restraints of the Clergy.-ED.]

(w) [Rep. of Eccles. Comm.]

[IT is very uncertain whether, during the time of the Apostles and the period which immediately succeeded to their administration, any certain rules regulated the distribution of the revenues of the church. It appears that, in the very early ages of Christianity, the oblations made in the diocese were usually deposited with the bishop, who was accountable for his disposal of them to the provincial synod (y). In the western churches (z) they were usually divided into three or four parts; one was set apart for the bishop, a second for the rest of the clergy, a third for the poor, a fourth for the maintenance of the fabric and the necessary uses of the church. Where only three divisions (a) were made, it was presumed that the hospitality of the bishop would provide for the necessities of the poor. There was an exception indeed to this generally prevalent custom; in some churches no division was made, the clergy and bishop lived together in one mansion, and at one table, without any distinction of property or revenue. Such cases were rare, and not in obedience to any general law, but to local and particular statutes of their own enactment (b).

(r) [Lindwood's Provinciale-Bingham's Eccles. Antiquities-Van Espen, Jus Canonicum, tit. Jus Patronatûs-Stillingfleet's Discourse of the True Antiquity of London-on the Unreasonableness of Separation-on the Duties and Rights of the Parochial Clergy (fol. ed.)-Godolphin's Repert. Canon. Thomassino vetus et nova Ecclesiæ Disciplina, v. 2, p. 72—are the authorities which the editor has consulted on this head, and from which the following observations have been deduced.-ED.]

(y) [Conc. Antioch. c. 25; Canon. Apost. c. 29.]

() ["The division of the profits of these goods into four parts, one to the administrator or holder of the benefice, another to the church, a third to the poor, and a fourth to the clergy, which is ascribed to Pope Simplicius (elected 468 A. D.) was not invariable in these times (i. e. of Justinian), nor

uniform throughout the western provinces. In France, the Council of Orleans, assembled 511 A. D., assigned one half to the bishop and the other to the clergy. In Spain, the first Council of Braga, held 563 a. D., directed the oblations to be distributed generally among the clergy. The fourth Council of Toledo, convoked 633 A. D. decreed the third part of the revenues to the bishops (Can. constit. 62, caus. 16, qu. 1). Thus, to repeat the pertinent remark of Gratian, (Grat. post Can. possess. ead caus. et qu.), sometimes the third and sometimes the fourth part was allotted to the bishop, according to the diversity of countries and customs; nor were these divisions certain, invariable, and uniform."Giannone, Ist. Civ. 1. 3, c. vi. s. 7.— ED.]

(a) [Cf. Conc. Bracara 1, c. 25.] (b) [August. Ser. de diversis sive de communi vitâ Clericorum.-ED.]

[The great church of the diocese provided in one of these two ways for the maintenance of its clergy until parochial churches were built and endowed. And apparently coeval with this institution of parochial divisions was the "jus patronatús" of the canonists (b), or the right of advowson of the common law, which forms the subject of this chapter. For, in order to promote the building and endowment of parochial churches, those who had contributed to their erection either by a grant of land, by building, or by endowing, were entitled to present a clerk of their own choice to the bishop, who was invested with the revenues accruing from such contribution. "Patronum faciunt dos, ædificatio, fundus."-" Si quis ecclesiam cum assensu diœcesani construxii, ex eo jus patronatús acquirit (c). The clerk so presented must have been a person capable of performing the functions of his office; but, subject to this exception, his admission was imperative upon the bishop.

[The earliest trace of this practice seems to be found in the decree of the council of Orange, A. D. 441, which granted this privilege to bishops; allowing a bishop, who built a church in the diocese of another bishop, to nominate the clerk, though not to consecrate the church. "This right of advowsons, or jus patronatús, the law doth also distinguish into ecclesiastical and laical. Touching the ecclesiastical (d), which is so called not because an ecclesiastick may or doth enjoy or possess it (for so he may also possess a laick patronage), but because it belongs to one, for that he hath founded, built, or endowed the church ex bonis ecclesiasticis, or by reason of some rectory of a church, or some ecclesiastical dignity; as when a benefice is erected with money gotten ex bonis ecclesiasticis, in that case he hath jus patronatus ecclesiastici, or patronatum ecclesiasticum. And so it is if one hath the advowson or right of presentation because he is a bishop, or dean, or the like; this is also Jus Patron. Eccles. to the Gloss. in Clem. II. de jure patronat. et alii (e)." The 123rd Novell of Justinian, promulgated about the end of the fifth century, decreed "that if any man should erect an oratory, and desire to present a clerk thereunto by himself, or his heirs, if they furnish a competency for his livelihood, and nominate to the bishop such as are worthy, they may be ordained." The 57th Novell, c. 2, empowers the bishop to examine them and judge of their qualifications, and, where there are sufficient, obliges him to admit the clerk. About the same time, it would seem, that other revenues, such as oblations and tithes, became appropriated to the parochial church. But Bede (f) intimates, that the

(b) [The "jus patronatus" of the civil law referred to the relation between the lord or patron and the bondsman he had set free.-ED.]

(c) [Decret. c. 4 & 24, and 3, 38, 25.]

(d) [Vide Covarruvias in q. pract. c. 36, n. 2.]

(e) [Godolphin's Repert. Canon. Introd. p. 34.]

(f) [Lib. iv. c. 27.]