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SECTION THE THIRD.

SECTION III.

REPORT OF A MOTION

MADE IN THE

COURT OF KING'S BENCH.

THE last day of Michaelmas Term, 1806, a motion was made in the Court of King's Bench, before Lord Chief Justice Ellenborough, Mr. Justice Grose, Mr. Justice Lawrence, and Mr. Justice Le Blanc, by Mr. Wilson, for a rule to shew cause why a mandamus should not be directed to the Archbishop of Canterbury, to issue his fiat to the Vicar-General of the province of Canterbury, for the making out a rescript, under the seal of the Vicar-General, commanding the Dean of the Arches to admit Dr. Nathaniel Highmore an Advocate in the court of Arches.

This motion was grounded on an affidavit,* the heads of which were stated by Mr. Wilson to the court.

* In the King's Bench.

neither by special grace, nor favor, but that he kept NATHANIEL HIGHMORE, of Hun- his acts, and performed his exercises, in such mantingdon, in the county of Huntingdon, and of Jesus ner as to constitute him a regular graduate. College, Cambridge, doctor of laws, maketh oath, And this Deponent further saith, That the rights, and saith, That he was, during eleven years, a stu- immunities, and privileges, of the universities of dent of civil law in the University of Cambridge, and Oxford and Cambridge, are provided for, secured, that he has also studied the civil law in other univer. and guaranteed, by several statutes, and charters sities, more especially in that of Edinburgh, and that and patents granted by the royal authority at divers he received from the professors of civil law in that times, and that the rights and privileges of doctors University, and at Cambridge, flattering testimonies and students in civil law, are especially so secured of his industry, and acquirements in that science. and guaranteed.

And this Deponent further saith, That he has also And this Deponent saith, That there are, and studied the canon law in the university of Cam- have been, certain ancient courts, known and called bridge ; and in the prosecution of the above-men- by the name of the court of arches, the court of petioned studies he has expended, of his own private culiars, the prerogative court, and others which are fortune, a very considerable sum, amounting to not governed by the civil and canon law, under the juless than one half of his patrimony; and that he risdiction and controul of the Archbishop of Canterhas also taken, in the year 1796, the degree of doctor bury. And that the advocates practising in these of civil law in the university of Cambridge, which courts, do also practise as such in the court of Admidegree was also attended with very considerable ex- ralty, which is governed by the civil law, and that pense; and that he likewise received that degree no doctor of the civil law is admitted to practise as an

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Mr. Wilson having stated his case, the Court asked what ground of right Dr. Highmore could shew, to prove an inchoate title to admission as an advocate in the court of arches, and whereon

advocate in this court, who has not been previously such petition, accompanied with such certificate as admitted an advocate of the court of arches, by the aforesaid, and that all the advocates now practising rescript of the Archbishop of Canterbury.

in the said courts are doctors of the civil law. And this Deponent further saith, That the busi- And this Deponent further saith, That he is aware ness of an advocate practising in these courts is of a of none, nor can learn of any advantage or privilege public nature, not only as it consists in the manage- arising from this degree, obtained at so great an exment of the most important concerns of properiy, pence, and by so long a course of study, other than and of the rights of the subjects at large of these The above-mentioned privilege of admission to prac. kingdoms, but, in a more special manner, as he is tise the profession of an advocate in these courts of entrusted with the management of the most import- civil and canon law. ant transactions, of a public nature, arising and ex- And this Deponent further saith, That this degree isting between the subjects of this kingdom and the is conferred indiscriminately on the clergy and the subjects of other kingdoms, belligerent and neu- laity, and that the professor of civil law in the unitral.

versity of Cambridge is at this tine in the orders of And this Deponent further saith, That he is in- the church. formed and believes, that the mode of proceeding And this Deponent further saith, That he took necessary to be observed towards obtaining admission), the orders of a deacon, at the close of the year 1789, as an advocate of the said courts, is as follows: the or the beginning of the year 1790, and that, having candidate delivers his certificate of qualifications, viz. never proceeded to the bigher orders of a priest, he, of his degree of doctor of laws aforesaid, signed by in the year 1793, laid aside the clerical character. the registrar of the university, where taken, into the And this Deponent further saith, That the only office of the vicar-general of the province of Canter- means, as this Deponent hath been intermed, and bury ; the petition is then made out in that office, verily believes, by which any person, having taken and which petition prays, that the candidate may, in such degree of doctor of civil law, as aforesaid, can consideration of that qualification, be admitted an be admitted to exercise the office of, and practise as, advocate ; and which being signed by the candidate, an advocate in the court of arches, the court of is forwarded from that office to the Archbishop of admiralty, and the other courts aforesaid, is by virtue Canterbury. The said Archbishop then returns on of a certain instrument or order, called or known by that same instrument his fiat, ordering the commis- the name of the above-mentioned fiat of the Archsion, or rescript, to be made out as prayed for. This bishop of Canterbury, to be granted by him for that instrument, viz. the petition with the fiat, is then purpose, in consequence of such petition as aforereturned to the vicar-general, and the rescript which said. orders the dean of the arches to admit the candidate And this Deponent further saith, That having as an advocate, is then made out, and sealed with regularly, as aforesaid, taken, and with a view to the seal of the vicar-general. The rescript thus made practise in these courts, the degree of doctor of laws, out is delivered to the registrar of the province of Le did, in the month of March or April, in the last Canterbury. The ceremony of admission consists year, send in to the Archbishop of Canterbury, in the candidate being introduced in court by two of aforesaid, the certificate of his degree and qualificathe advocates, and presented to the dean of the tion, signed by the registrar of the university of arches as a candidate for admission. The dean of Cambridge, together with his petition, in the acthe arches then says, "Let the Archbishop's rescript customed form, for such fiat of the said Archbishop. be read.” It is then read. The candidate having And this Deponent further saith, That in such taken the oaths, the dean of the arches then admits his petition, which was expressed in ibe usual and him as an advocate of the court, declaring such ad- formal terms, this Deponent did not add the cirmission to be in pursuance of the rescript of the said cunstance of his having formerly taken the orders of Archbishop of Canterbury; enjoining him one year a deacon, both as considering such addition to be of silence, and directing him to take his seat, in that informal, and also as believing, as this deponent pocourt, on his right (or lett) band. On the following sitively saith he did believe, that it was immaterial; day the candidate is in like manner introduced into and this deponent was informed, and verily believes, the court of Admiralty by two of the advocates, and the fiat of the said Archbishop was duly returned to being by them presented to the judge of the said court this deponent's petition, and that the commission or of Admiralty, and having taken the oaths, he is ad- rescript, in compliance with the same, was duly mitted by the judge as an advocate of that court. made out, and regularly executed and sealed; and

And this Deponent further saith, That persons so the same being, together with the fiat, at that time admitted continue to practise as advocates in those in the office of the deputy registrar of the province courts, as long as to themselves seem convenient, of Canterbury, this deponent did, on the 27th day and that the constant practice of the Archbishop for of April, in the same year, (being the day previous the time being has been, to grant such tiat, upen to the commencement of Easter turm, in those to rest his application to the court of King's Bench, for a rule to shew cause, as moved for by Mr. Wilson. Mr. Wilson replied, that the grounds of Dr. Highmore's title were, his having taken

courts of civil and canon law) wait, in the accus- And this Deponent further saith, That in the tomed form, on the dean of the arches, to acquaint course of his conversation with the said Archbishop, him with his, this deponent's, intention of taking this deponent having again urged the hardship of his his seat under that commission, as an advocate of situation, and the injustice he conceived to be exerthe court of arches, on the following day; and that cised towards him, the said Archbishop was pleased the dean of the arches, in reply, did inform this de- to reply, “ Sir, I have done all in my power; I ponent, that he conld not be adniitted as an advocate have represented your case to Sir W. Wynne and of that court, such admission being forbidden by the Sir W. Scott as one, in my opinion, admitting of a canons of the church, it having been understood, clear distinction, and also as one never likely to that this deponent had formerly taken the orders of occur again." a deacon.

And this Deponent further saith, That having And this Deponent further saith, That in conse- waited about a week, he, this deponent, did again quence of such refusal of the dean of thearches to ad- wait on the said Archbishop of Canterbury, who did mit this deponenttotake his seat underlis commission, inform this deponent that he had not had an opporduly and legally obtained, and regularly and formally tunity of seeing the judge of the admiralty, having executed, and to act as an advocate thereunder, he, been himself much occupied with other important this deponent, did wait on the said Archbishop of business, and that he had not chosen to write on the Canterbury, and did prefer to him his complaint of subject to the judge of the admiralty, having more to such refusal of the dean of the arches, and that the say to him on the matter than could well be stated said archbishop, in reply, did declare to this depo- in a letter ; but that the delay had by no means nent, that the objection urged by the dean of the arisen from the matter having been out of bis mind, arches against this deponent's admission, did appear as he had really thought very much upou it. And to him an unfounded objection ; but that, notwith- that it did strike him as very hard, that a gentleman standing, the archbishop declined deciding on the of this deponent's character should be squeezed bematter, and referred this deponent to the judge of tween two professions, and not be allowed either to the admiralty for his opinion thereon.

prosecute the one, or to return to the other ; that it did And this Deponent further saith, That he did seem very hard, and that he would certainly see, consequently wait on the judge of the admiralty, to and converse with Sir William Scott on the subwhom he stated the wish of the Archbishop of Can- ject. terbury aforesaid, that he should do so ; and that And this Deponent further saith, That a few days the judge of the admiralty, in reply, did give the after the above-mentioned interview, he, this deposame opinion as had been given by the dean of the nent, received the following letter from the Archarches, viz. that this deponent could not be admitted bishop of Canterbury, in his own hand-writing. to practise as an advocate, such admission being forbidden by the canons.

Lamleth Palace, May 14, 1805.* And this Deponent further saith, That he hath been informed, and verily believes, that, by in- « I bave received an answer from Sir W. Wynne, specting the register of the society of advocates, it and Sir W. Scott, respecting your application to be will appear, that divers persons, both before and admitted an advocate in Doctors' Commons, and after the promulgation of the canons in the reign of they are decidedly of opinion, that it cannot be done James the First, were admitted to practise as advo- without gross impropriety. cates in the courts aforesaid, such persons having

“ I have the honour to be, Sir, taken holy orders.

“Your faithful, humble servant, And this Deponent further saith, That he did, in

" C. CANTUAR." consequence, again wait on the said Archbishop of Canterbury, to whom he then stated more at length And this Deponent further saith, That the judges his reasons for believing the objection urged by the and advocates exercising ecclesiastical jurisdiction, dean of the arches, and by the judge of the admirally, and sitting and practising in the ecclesiastical and to be wholly unfounded, and that the said archbishop admiralty courts, were, in the year 1708, incorpodid acknowledge the extreme hardship of this depo- rated by a charter under the great seal, under the nent's situation, as also the calmness and moderation name and style of the College of Doctors of Law, with which he had stated his arguments, and did exercent in the ecclesiastical and admiralty courts, add, that he would himself see and converse with and that, by a clause in this charter, it is ordered the judge of the admiralty on the subject.

and appointed, that the society shall consist of a

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* Dr. II. feels himself compelled to acknowledge an anachronism in this clause of his affidavit. This expression was not made use of by bis Grace, in the conversation here spoken of, but in one subsequent to his Grace's interview with Sir Wm. Wynne and Sir Wm. Scott. The miatter is correctly stated in the first part of an Address to the Visitors, published in the month of June, 1806,

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