came (if indeed any act of parliament was needed for this purpose) to have jurisdiction or duties throughout the area of each

new see.

against a

An action lies against the judge of an ecclesiastical court who When an has acted beyond the jurisdiction of the court: as where a action lies party was excommunicated for refusing to obey an order of the chancellor. ecclesiastical court which it had no authority to make; or where the party had not been previously served with a citation or monition, nor had due notice of the orders (r). An action was holden not to lie against the vicar general of the bishop for excommunicating the plaintiff for contumacy in not taking upon him administration of an intestate's effects to whom plaintiff was next of kin, and had intermeddled with the goods; although the citation by which plaintiff was cited was void by reason that it required him to appear and take administration, without leaving him an option to renounce it, and the proceedings thereupon had been set aside upon appeal; for the vicar general had jurisdiction over the subject-matter, viz., the granting administration, and there was no malice (s).

Commissary is a title of jurisdiction, appertaining to him that Commissary, exercises ecclesiastical jurisdiction in places of the diocese so far what he is. distant from the chief city, that the chancellor cannot call the people to the bishop's principal consistory court without great trouble to them. This commissary is called by the canonists commissarius, or officialis foraneus, and is ordained to this special end, that he should supply the office and jurisdiction of the bishop in the out places of the diocese, or in such parishes as are peculiars to the bishop, and exempted from the archdeacon's jurisdiction: for where by prescription or by composition there are archdeacons who have jurisdiction in their archdeaconries, as in most places they have, there the office of commissary is superfluous (1).

There is also the commissary of the diocese of Canterbury (u). And there are commissaries appointed for special purposes, as for visitations (r).

The judge of an archdeacon's court is, as already stated, called Archdeacon's an official (y).

official.

The jurisdiction of the Privy Council as a court of appeal Privy Council. from the ecclesiastical courts will be treated of in a later chapter ().

By 10 & 11 Vict. c. 98, all judges, registrars, and other officers Statutory of any ecclesiastical court are to hold office subject to any alte- provision rations to be made by parliament, and without claim to com- rights. against vested pensation.

(r) Beaurain v. Scott, 3 Campb. p. 388.

(8) Ackerley v. Parkinson, 3 M. & S. p. 411.

(t) Terms de la Ley, voce "Com

missary"; 4 Inst. p. 338.
(u) Vide supra, p. 922.

(x) Vide supra, pp. 169, 880.
(y) Vide supra, pp. 200, 927.
(z) Vide infra, Chap. VI., Sect. 6.

CHAPTER V.

Old Canons.

Canon 130.

Canon 131.

OFFICERS OF THE ECCLESIASTICAL COURTS.

SECT. 1.-Advocate.
2.-Proctor.

3.-Register or Registrar.

4.-Secretary.

5.-Notary Public.

6.-Apparitor.

SECT. 1.-Advocate.

OLD constitutions as to advocates will be found in Lindwood and Athon (a).

By Can. 130 of 1603, "For lessening and abridging the multitude of suits and contentions, as also for preventing the complaints of suitors in courts ecclesiastical who many times are overthrown by the oversight and negligence or by the ignorance and insufficiency of proctors and likewise for the furtherance and increase of learning, and the advancement of civil and canon law following the laudable customs heretofore observed in the courts pertaining to the Archbishop of Canterbury; we will and ordain that no proctor, exercising in any of them, 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 aforesaid."

By Can. 131, "No judge in any of the said courts of the archbishop 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

(a) Lind. pp. 75, 76; Otho. Athon, p. 71. See Ayl. Par. pp. 53, 54.

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."

By Can. 96, "That the jurisdiction of bishops may be pre- Canon 96. served as near as may be entire and free from prejudice, and that for the behoof of the subjects of this land better provision be made that henceforward they be not grieved with frivolous and wrongful suits and molestations: it is ordained and provided that no inhibition shall be granted out of any court belonging to the Archbishop of Canterbury 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 advice 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."

In the Report of the Ecclesiastical Courts Commissioners of 1832 it was stated as follows:

"The ecclesiastical laws, as now existing, have been for 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 members of the society, and their 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.

Report of

Ecclesiastical
Courts Com-

mission, 1832.

Modern changes.

"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 (b), 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" (c).

The college was abolished in pursuance of 20 & 21 Vict. c. 77, ss. 116, 117, when the probate and divorce courts were established.

The ecclesiastical courts have latterly, ex necessitate rei, admitted barristers to practise in them; but the archbishop's power to admit advocates remains.

The Church Discipline Act, 3 & 4 Vict. c. 86, s. 7, enacts that where a clerk is to be proceeded against before the bishop, articles shall be drawn up against him, which are to be signed "by an advocate practising in Doctors' Commons." But after the dissolution of the College of Advocates the Court held that a barrister could sign instead of an advocate (d).

(b) It seems that this was purely discretionary in the archbishop; and that he could not be compelled to direct the admission of a candidate: Rex v. Abp. of Canterbury, 8 East, p. 213.

(c) See 1 Phill. Intern. Law, pp. xxx-xlix, for the history of civilians in England, and of the College of Advocates.

(d) Vide infra, Chap. VIII.

SECT. 2.-Proctor.

Ecclesiastical
Courts Com-

In the Report of the Ecclesiastical Courts Commissioners of Report of 1832, it is said as follows:"Proctors in the ecclesiastical and admiralty courts discharge mission, 1832. duties similar to those of solicitors and attornies in other courts. "In order to entitle a person to be admitted a proctor, to practise in the Court of Arches, it is required that he shall have served a clerkship of seven years, under articles, with one of the thirty-four senior proctors, who must be of five years' standing; and who, by the rules of the court, is prohibited from taking a second clerk until the first shall have served five years; except in the event of the death of a proctor, to whom a clerk may have been articled, before the term of his clerkship is completed. In this case any other of the thirty-four senior proctors may take such clerk for the remainder of the term, although he himself may at the same time have a clerk of less than five years' standing. Before a clerk is permitted to be articled, he is required to produce a certificate of his having made reasonable progress in classical education.

"When the term of seven years is completed, the party is admitted a notary, by a faculty from the Archbishop of Canterbury; a petition is then presented to his grace, accompanied by a certificate, signed by three advocates and three proctors, that the party applying to be admitted has served, as articled clerk to a proctor of the court, for the full term of seven years. If this certificate is approved, the archbishop issues his fiat, and a commission is directed to the Dean of the Arches, by whom the party is admitted under the title of a supernumerary, with similar ceremonies to those observed on the admission of an advocate.

"The proctor so admitted is qualified to commence business upon his own account immediately, but he is not entitled to take an articled clerk, until he shall have been for five years within the number of the thirty-four senior proctors."

Proctors are officers established to represent in judgment the Proxies. parties who empower them (by warrant under their hands called a proxy) to appear for them, to explain their rights, to manage and instruct their cause, and to demand judgment (e). Two proxies are generally executed; one authorizing the proctor to institute, the other to withdraw proceedings. They are signed by the parties, attested by two witnesses, and deposited in the registry of the court (f). The proctor, till such power be withdrawn, is dominus litis.