fashion. Indeed most of the peculiar habits, both in the church and in courts of justice and in the universities, were in their day the common habit of the nation; and were retained by persons and in places of importance, only as having an air of antiquity, and thereby in some sort conducing to attract veneration: and the same on the other hand, in proportion do persuade to a suitable gravity of demeanor: for an irreverent behaviour, in a venerable habit, is extremely burlesque and ungraceful.

vicious ex

cesses.

19. By Canon 75. No ecclesiastical persons shall at any time, Shunning other than for their honest necessities, resort to any tavern or alehouses, neither shall they board or lodge in any such places. Furthermore, they shall not give themselves to any base or servile labour, or to drinking, or riot, spending their time idly by day or by night, playing at dice, cards, or tables, or any other unlawful game. But at all times convenient, they shall hear or read somewhat of the holy scriptures, or shall occupy themselves with some other honest study or exercise, always doing the things which shall appertain to honesty, and endeavouring to profit the church of God, having always in mind, that they ought to excel all others in purity of life, and should be examples to the people to live well and christianly, under pain of ecclesiastical censures to be inflicted with severity, according to the qualities of their offences.

20. Nevertheless Lord Coke says, by the common law of the Recreland, clergymen may use reasonable recreations, in order to ations. make them fitter for the performance of their duty and office. 2 Inst. 309.

And albeit spiritual persons (he says) are prohibited, by the canon law, to hunt; yet by the common law they may use the recreation of hunting. And after the decease of every archbishop and bishop (amongst other things) the king time out of mind hath had his kennel of hounds, or a composition for the same. 2 Inst. 309.

The foundation of which custom was this: It appeareth by many records, that by the law and custom of England, no bishop could make his will of his goods or chattels coming of his bishoprick, without the king's licence. Whereupon the bishops, that [209] they might freely make their wills, yielded to give to the king after their deceases respectively for ever six things: 1. Their best horse or palfrey, with bridle and saddle. 2. A cloak with a cape. 3. One cup with a cover. 4. One bason and ewer. 5. One ring of gold. 6. Their kennel of hounds.

2 Inst. 338.

21. By the 1 H. 7. c. 4. It shall be lawful to all archbishops May be imprisoned by and bishops, and other ordinaries having episcopal jurisdiction, the spiritual to punish and chastise priests, clerks, and religious men, as shall be convicted before them by examination, and other lawful proof requisite by the law of the church, of advoutry, fornication, incest,

judge for

inconti

nence.

Shall not take to

farm nor traffick.

or any other fleshly incontinency, by committing them to ward and prison, there to abide for such time as shall be thought to their discretions convenient for the quality and quantity of their trespass.

By 57 G. 3. c. 99. which is entitled (inter alia) "An act to amend the laws relating to spiritual persons holding of farms.”

So much of the 21 H. 8. c. 13. [viz. § 1—8. and § 35. as relates to spiritual persons holding of farms, and all 43 G. 3 c. 84. and c. 109. are repealed. (§ 1.)

§ 2. Enacts, that no spiritual person having any dignity, prebend, canonry, benefice, or stipendiary curacy, or lectureship, shall take to farm for occupation by himself, by lease, grant, words, or otherwise, for term of life or years, or at will, any lands, exceeding in the whole 80 acres, for the purpose of occupying, using, or cultivating the same, without the special consent in writing of the bishop of the diocese, wherein such dignity, &c. is locally situate, and such permission shall specify the number of years (not beyond seven) for which the same is given; and every such spiritual person, who without permission shall take any more land than 80 acres, shall forfeit 40s. for every acre above that number, for every year during which he shall оссиру the same, to be recovered by and to the use of any person who may inform and sue for the same.

By § 3. No such spiritual person shall by himself or another to his use, engage in or carry on any trade or dealing for gain, (1) or deal in any goods or merchandize, by buying and selling for profit in any fair or market, on pain of forfeiting the value of such goods bargained or bought to sell again contrary to this act, and every bargain or contract so made by him, or by any person to his use, contrary to this act, shall be void, and the one half of every such forfeiture shall go to His Majesty, and the other half to him that will sue for the same.

By § 4. Nothing herein relating to being engaged in trade, or dealing, or buying or selling, shall extend to or subject to any penalty, any spiritual person for keeping a school, or acting as a

(1) Cases on 21 H. 8. c. 13.] It seems that if a clergyman will trade, he may make valid contracts and is liable to be made a bankrupt: for he cannot take advantage of the breach of the statute 21 H.8. to excuse himself for the breach of another Ex parte, Meymott, 1747. 1 Atk. 196. Cooke's Bpt. Laws, 33. and see F. N. B. 227. F. an agreement in 1800 for a lease of a farm to a clergyman for the purpose of occupation is void, under Stat. 21 H. 8. c. 13. But whether a clergyman buying a lease as property, or taking it by devolution of law as next of kin, &c. is within that statute, the court will not determine, Morris v. Preston, 7 Ves. 556. It is said that owing to the narrow incomes of the clergy, the above provisions against their carrying on trades are necessarily disregarded in many parts of Wales.

schoolmaster or tutor, or being in any way engaged in giving instruction or education for profit or reward, or for buying or sellling, or doing any other act in the conduct of, or carrying on, or in relation to the management of such school or employment; or to any spiritual person for buying any goods or merchandize, or articles of any description, which shall without fraud be bought to be used, for his family or household, and afterwards selling the same again, or any parts thereof, which he may not want or choose to keep, though at an advanced price; nor for buying or selling again for profit any kind of cattle, corn, or other things necessary for the occupation, manuring, improving, pasturage, or profit of any glebe, demesne, farms, lands, tenements, or hereditaments which may be lawfully held by such spiritual person, or by some other to his use; but nothing herein shall authorize such spiritual person to sell such cattle, corn, &c. in person, in any market, fair, or place of public sale.]

own

[210] Shall not

keep a tanhouse or

brewhouse.

23. No spiritual person shall have, use, or keep by himself or by any person to his use any tanhouse; nor any brewhouse, to any other use than only to be spent and occupied in his house, on pain of 10l. a month; half to the king, and half to him that will sue in any of the king's courts. 21 H. 8. c. 13. s. 32. 24. By Canon 76. No man being admitted a deacon or minis- Shall not ter, shall from thenceforth voluntarily relinquish the same, nor relinquish afterwards use himself in the course of his life, as a layman; sion. his profesupon pain of excommunication, And the churchwardens shall present him.

[211]

25. After all, these distinctions of the clergy are shadows Conclusion. rather than substance; being most of them about matters which are obsolete and of no significance. The restraints, as to the scope and purport of them, are such as the clergy for the most part would chuse to put upon themselves: and the privileges, such as they are, seem to be scarcely worth claiming; and some of them one would almost imagine to have been calculated to bring a disgrace upon the clergy, rather than to be of any real benefit to them; for why should a clergyman be protected from paying his just debts more than any other person, or be saved from punishment for a crime for which another person ought to be hanged? And it is hoped, there hath not been one instance, of a clergyman having needed to claim the privilege of his order a second time, for a crime for which a layman by the laws of his country should suffer death.

Probate of wills. See Wills.

211

Proctor.

1. PROCTORS are officers established to represent in judgment the parties who empower them (by warrant under their hands called a proxy) to appear for them (2), to explain their rights, to manage and instruct their cause, and to demand judgment. 2 Dom. 583.

2. By the 3 J. c. 5. No recusant convict shall practise in the civil law as proctor. § 8. [Altered by the 31 G. 3. c. 32. which introduces a new oath to be taken by Roman catholicks practising the law. For which see Popery, XXXV. and Daths, 20 B.]

And by the 5 G. 2. c. 18. No proctor in any court shall be a justice of the peace [within any county in England or Wales] during such time as he shall continue in the business and practice of a proctor. § 2. [on penalty of 100l. Ib. § 3.]

3. [By 55 G. 3. c. 184. Sched. Part First, every admission of any person to the office of proctor in any of the courts, shall be [212] upon a 25l. stamp. And every practising solicitor, attorney,

notary, proctor, agent, or procurator, must take out a certificate annually; upon which there shall be charged, if he reside in the city of London or Westminster, or within the limits of the two-penny post in England, or within the city or shire of Edinburgh, and shall have been admitted to his office three years, 127.; if not so long, 6l. If he shall reside elsewhere, and have been admitted three years, 87.; if not so long, 4l.: but no one person is obliged to take out more than one such certificate, though he may act in more than one of the above capacities, or in several of the courts aforesaid. Ibid.]

4. Can. 129. None shall procure in any cause whatsoever, unless he be thereunto constituted and appointed by the party himself, either before the judge, or by act in court; or unless in the beginning of the suit, he be by a true and sufficient proxy thereunto warranted and enabled. We call that proxy sufficient, which is strengthened and confirmed by some authentical seal, and party's approbation, or at least his ratification therewithal concurring. All which proxies shall be forthwith by the said proctors exhibited into the court, and be safely kept and preserved by the register in the public registry of the said court. And if any register or proctor shall offend herein, he shall be

(2) It is the practice of the ecclesiastical court, that the party coming into court and doing any act himself shall vacate a power given to another to act for him. Hayes v. Exeter College, Oxon.

12 Ves. 346.

secluded from the exercise of his office for the space of two months, without hope of release or restoring.

5. Otho. Whereas a custom is said to prevail, that he who is cited to a certain day, constitutes a proctor for that day without letters, or by letters not sealed with an authentic seal; by which means it happeneth, that whilst such proctor will not prove his mandate, or confirm his letters by witnesses, or some other impediment comes in the way, nothing is done that day, nor on the following day, the proctor's office being at an end; and so all former diligence is lost without any effect: As a caution against this fallacy, we do ordain, that for the future a special proctor be constituted absolutely without any limitation of time; or if he be constituted for the day, yet not for one day only, but for several days, to be continued if need be. And the mandate shall be proved by an authentic writing: unless he be constituted in the acts of court, or the constitutor cannot easily find an authentic seal. Athon. 61.

6. Peccham. We do ordain, that no dean, archdeacon, or his official, or bishop's official shall set his seal to any proxy, unless it be publicly requested of him in court, or out of court when he who constituteth the proctor and is known to be the principal party is present, and personally requesteth it: And whatsoever dean, archdeacon, or his official, or official of the bishop, shall do the contrary out of certain malice, shall be ipso facto sus- [213] pended from his office and benefice for three years. And if any advocate shall procure a false proxy to be made, he shall be suspended for three years from his office of advocate, and be disabled to hold any ecclesiastical benefice, and if he be married or bigamus [whereby in those days he was incapacitated to hold a benefice] he shall be excommunicated ipso facto; and whatever shall be done by virtue of such false proxy shall be utterly void to all intents and purposes, and the proctor who was the chief actor in such falsity shall be for ever repelled from executing any legal act. And all of these nevertheless, if they shall be convicted, shall be bound to render damages to the party injured. Lind. 76.

advocates.

7. Can. 130. For lessening and abridging the multitude of To obtain suits and contentions, as also for preventing the complaints of advice 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, 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