reason of adultery; and the facts were, that having suspected his dishonour, he one day on his return from shooting proceeded suddenly, accompanied by a female servant, to the room of his wife, whom they found in bed in the arms of her paramour. Against that person the husband in due time recovered a verdict at the Anglesea Assizes for 500l. damages. The evidence of adultery in the Ecclesiastical Court depended on the testimony of the female servant. That evidence had satisfied the jury in the action-at-law. But it did not satisfy the learned judge of the Ecclesiastical Court; who rested his decision, not on any objection to the conduct of the husband, which had been altogether blameless, nor on any doubt of the veracity of the witness, whose character was unimpeached, but simply and solely on this ground, that the testimony of a single witness, however positive and distinct, did not of itself constitute that full degree of proof that plena probatio required by the Ecclesiastical Courts. He therefore held that Mr. Evans had failed in his case; and he accordingly dismissed Mrs. Evans from the suit. Mr. Evans may indeed appeal to the Judicial Committee of the Privy Council. But in the exercise of its appellate jurisdiction the Judicial Committee, when reviewing the sentences of the Ecclesiastical Courts, is itself governed by ecclesiastical law; so that an appeal on so clear a point could lead to no other result than an affirmance with costs. Mr. Evans, therefore, is precluded from all relief.

One other word, and we have done. The only mode of taking evidence in the Ecclesiastical Courts is by commission and written deposition. There is no vivâ voce examination of witnesses. This of itself is a sufficient objection to these tribunals; although Dr. R. Phillimore seems to think it their highest recommendation. We will not argue this question with him. The opinion of the profession has long been made up on it. But we desire our readers once for all to consider whether it is reasonable that a party, in one of the most trying

It is said that in the case of a Cardinal the probatio in order to be plena must be established by no less than seven eye-witnesses -so improbable does the canon law consider it, that a member of that high order can be guilty of incontinence.

predicaments of domestic life, should be obliged to forego the comfort of confiding in the friendly assistance of his own confidential solicitor, on whose honour and discretion, in all difficulties, he has perhaps for years relied? Why drive him to a stranger ignorant of his affairs, his plans in life, his connections, his interests, his resources? Yet this will be the consequence if the jurisdiction of divorce à vinculo be consigned to the narrow and exclusive precincts of Doctors' Commons. Why, moreover, should not an aggrieved husband or an injured wife have the privilege of selecting counsel from the bar at large? Why restrict the choice to a handful of civilians? The learning and ability of these gentlemen we have no wish to disparage. On the contrary we readily admit the important services which in many instances they are capable of affording; and we desire to see them act frequently in concert and co-operation with their brethren of Westminster Hall. Who can doubt that in the trial of Queen Caroline Dr. Lushington and Sir C. Robinson proved most valuable coadjutors? But, to indulge an extravagant supposition, let us for a moment imagine that the House of Lords had made an order in that case excluding all but civilians from the forensic argument appointed for hearing on the Bill of Pains and Penalties, which in effect was a divorce bill. What would the authors of the prosecution and the unhappy Princess who was the object of it have said to such a limitation, compelling them to surrender their own chosen and peerless advocates,—to relinquish a Copley, a Brougham, and a Denman, — and to seek for substitutes in the gloomy vicinity of St. Paul's Churchyard. All this would have appeared unjust, arbitrary, and preposterous in 1820: yet such, or something very like it, is the grave proposal now advanced by Dr. R. Phillimore and his colleagues; an experiment on the public patience which we have endeavoured to treat as it deserves.

382

ART. VIII. CONVEYANCING, ITS EARLY HISTORY AND PRESENT STATE.

1. Principles of the Law of Real Property, intended as a First Book for the Use of Students in Conveyancing. By JOSHUA WILLIAMS, Esq., of Lincoln's Inn, Barrister-at-Law. Sweet. 1845.

2.

Concise Precedents in Conveyancing adapted to the Act for simplifying the Transfer of Property, 7 & 8 Vict. c. 76. with Practical Notes. By CHARLES DAVIDSON, of the Inner Temple, Esq., Barrister-at-Law. Maxwell. 1845. THE connection of the clergy with the state and the extent of clerical influence on the general constitution of the country have already formed the subjects of considerable antiquarian and historical investigation; but the precise relationship of the priest to the lawyer has not yet been accurately determined, or even formed, so far as we are aware, the subject of separate investigation. It would be, however, an important and highly interesting chapter in the history of the profession and of our legal institutions. Into the more general question we shall not at present enter, especially as much of it would be familiar to our readers. They will all remember, among other things, Blackstone's vivid description1 of the attempts of the ecclesiastics to make laws for this country, by the introduction of the civil and canon law, and the constant struggles of the laity to rescue themselves from their thraldom in this respect. The result was that the good old common law was handed down in a great degree intact, and was at any rate guarded with contemptuous jealousy by the judges of the courts of Common Law: the civil and canon law were confined to the Ecclesiastical Courts, and in the end the clergy (to whose body the great bulk of the advocates belonged) were early in the reign of Henry III.2, expressly forbidden by episcopal con

11 Black. Com. 19. et seq.

2 Dugdale says (Orig. Jur. 21.) that the professors of the law till 2 Hen. III. were usually of the clergy; to which Selden adds, (Disser. ad Fletam, 519.) "or rather till the year 1164, temp. H. II., when by a canon in the Synod of

stitutions from appearing as advocates in foro sæculari1, although they continued to act as judges there till a later period. The laity were then left to find among themselves persons qualified to be advocates, and hence the institution of the inns of court, and ultimately the present division of professional labour.

But the clergy only retired from the Common Law Courts to renew the fight in another and more extensive field, which they exclusively retained. They still kept possession of the office of Lord High Chancellor (under whom the Court of Chancery gradually rose into consequence), which was almost invariably held by a churchman down to the time of Sir Thomas More in 1530, and frequently after that period down to the year 1625, since which time the Great Seal has been always held by a lawyer. This long dominion in the Court of Chancery gave the clergy great power and importance, and enabled them by degrees to model the process of the Court at their own discretion. And there seems every reason to believe that the clergy acted here as advocates, besides unquestionably monopolising the other important offices of this Court as Masters in Chancery, and acting ex

Tours under Pope Alexander III., it was ordained 'quod post votum religionis nullus ad physicam vel ad leges mundanas legendas permittatur exire.'” But the "votum religionis" here spoken of appears to be the monastic vow, and not the less rigorous engagement of the secular clergy, and " legendas seems to refer to public lectures rather than to forensic practice. See Serjeant Manning's learned Report of the Serjeant's case, 171. It clearly would not and did not apply to conveyancing.

There can be no doubt, however, that at this period the clergy were by far the most competent advocates, and after the Norman conquest, when litigation was principally conducted before judges appointed by the King, the ecclesiastics received large fees by the practice of advocacy before the courts of law. Indeed, they devoted themselves, somewhat to the scandal of the body, to the study of the law in preference to that of divinity and other more fitting studies, and were thus open to Papal rebuke. (2 Palgrave's Eng. Commonwealth, 386. Matt. Paris, 759, 760.) They were indeed with the greatest difficulty driven from the practice of advocacy, as is shown by the familiar story of Serjeant William Bussy, a. d. 1259, quoted from M. Paris by Blackstone, who being called to account for his knavery claimed the benefit of his clergy, which till then remained an entire secret, and to that end, voluit ligamenta coifæ suæ solvere et palam monstraret se tonsuram habere clericalem; and hence Sir H. Spelman conjectures (Glossar. 335.), that coifs were introduced to hide the tonsure of such renegade clerks as were still tempted to remain in the secular courts in the quality of advocates or judges n withstanding their prohibition by canon. Bla. Com. 24. n.

1

clusively as attornies and solicitors under the name of the Six Clerks and Sworn Clerks. 1

There was also another important branch of the profession almost exclusively in the hands of the clergy down to a very late period of our history. The laity might talk, and some few of them might be able to read, but the priest could write and waved his pen at them in defiance. From an early period all the charters and other written documents had been exclusively prepared by the clergy, for the simple reason that the art of writing was known to them alone. In all cases, then, in which writing was employed, either in the transfer or devise of property, the assistance of the priest was absolutely essential. The great early assurance of land was the feoffment, to which writing was not rendered necessary until the reign of Charles II.2; the livery of seisin which was essential to it, being considered notice to all men, and which mysterious ceremony was manageable by the capacity of lawyers who could not sign their names. But that part of the profession who could, the clergy, never relished this public mode of transfer, and to them and to their ingenuity are to be ascribed most of those convenient but secret dealings with property which now go under the general names of deeds and wills. It cannot be doubted that all the transactions which formed the first attempts of conveyancing to develope itself were from the earliest period under the superintendance, and were in fact actually prepared by the clergy. This fact is however not a little curious, and as it has led to important and interesting results, we shall here enter a little into detail.

The earliest conveyancers were no doubt the Druids, who alone possessed the art of writing when the use of letters was reckoned dishonourable by all the barbarous nations of Europe. One of the most ancient and inviolable laws of the Britons of which we have any information, is that which forbad the committing their laws to writing. But the Druids, while they had no objection that all others should remain ignorant of and even despise the art of writing, took

1 Spence's Abuses of the Court of Chancery, 1839, p. 6. and post, p. 393. 229 Car. 2. c. 1. (The Statute of Frauds.) The origin of the feoffment seems referrible to Saxon times. See 1 Reeve, Hist. C. L. p. 10.

3 Ælian, Varior. Hist. 1. 8. c. 4.

4 Cæs. de Bel. Gal. 1. 6. cc. 13, 14.