Canonical punish ments. IV. One notary public is sufficient for the exemplification of any act, no matter requiring more than one notary to attest it. CANON 123. "No chancellor, archdeacon, official, or any other person using ecclesiastical jurisdiction whatsoever, shall speed any judicial act, either of contentious or voluntary jurisdiction, except he have the ordinary registrar of that court, or his lawful deputy1: or if he or they will not or cannot be present, then such persons as by law are allowed in that behalf to write or speed the same, under pain of suspension ipso facto." CANON 124. "If any registrar, or his deputy or substitute whatsoever, shall receive any certificate without the knowledge and consent of the judge of the court, or willingly omit to cause any person cited to appear upon any court day, to be called: or unduly put off and defer the examination of witnesses to be examined by a day set and assigned by the judge: or do not obey and observe the judicial and lawful monition of the said judge: or omit to write, or cause to be written, such citations and decrees as are to be put in execution, and set forth before the next court day: or shall not cause all testaments exhibited into his office to be registered within a convenient time: or shall set down or enact, as decreed by the judge, any thing false, or conceited by himself, and not so ordered or decreed by the judge: or in the transmission of processes to the judge "ad quem" shall add or insert any falsehood or untruth, or omit any thing therein, either by cunning or by gross negligence: or in causes of instance, or promoted of office, shall receive any reward in favour of either party: or be of counsel directly or indirectly with either of the parties in suit: or in the execution of their office shall do aught else maliciously or fraudulently, whereby the said ecclesiastical judge, or his proceedings, may be slandered or defamed: we will and ordain, that the said registrar, or his deputy or substitute, offending in all or any of the premises, shall by the judge of the diocese be suspended from the exercise of his office for the space of one, two, or three months, or more, according to the quality of his offence; and that the said bishop shall assign some other public notary to execute and discharge all things pertaining to his office during the time of his said suspension." 1 This is according to the rule of the ancient canon law, which, to prevent falsifications, requireth the acts to be written by some public person, if he may be had, or else by two other credible persons. Gibson, p. 996.—Ed. ADVOCATES. TITLE X. THE IMPORT OF THE WORD ADVOCATE: AND THE QUALI FICATION, ADMISSION, AND OFFICE OF ADVOCATES 1. the word I. An advocate, in the general import of the word, is said to be Import of that person who has anywise to do in the pleading and manage- advocate. ment of a judicial cause or controversy. He should be a student Qualificain the law of five years' standing, well skilled and versed in the tion of adknowledge thereof, and approved as such by some doctor. He ought to be present at informations in law, either in the principal cause, or that of an appeal, or in both. So that in the general 1 This title is taken from Ayliffe, p. 53—57.—Ed. 66 2 In this sense some perhaps will say, that even proctors are called advocates; but, in a strict way of speaking, only that person is styled an advocate, who is the patron of the cause, and is often, in Latin, termed togatus, and in English, a person of the long robe." For, though proctors are assistants to causes, yet they are not properly advocates, because those things do not concur in proctors which are necessarily required in advocates by the civil law.-Ayliffe. See their qualifications in this title.-Ed. 3 Lindwood, ed. Oxon, p. 76, note. Burn's Ecclesiastical Law, word Advocate-Ed. 4 Justinian's Code, 2. 7. 11.-Oughton. 5 Canon 96. "That the jurisdiction of bishops may be preserved (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 molestation, 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 county, 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 ecclesias vocates. ferent Their dif- acceptation of the word, an advocate signifies a patron. Hence advocates, patrons, and pleading lawyers, do at this day signify the same thing. titles. Their duty and office. Their admission. II. The duty and office of advocates is to speak to the merits of a cause, after the proctor has prepared and instructed the same for a hearing before the judge. And they ought to be well skilled in the knowledge of the law, because it is their business to assist the litigants with safe and wholesome advice. Advocates are, as it were, the guardians and tutors of a cause, but proctors are only in the place of curators in that respect'. Wherefore a person is said to be a client to his advocate, but a master and a mandator to his proctor. Consequently an advocate's office may be performed out of court, or a place of judicature, which a proctor's cannot. The advocate's office is necessarly of a public nature, and therefore since the law permits and allows thereof, audience ought not to be denied him in defending the causes of private men, unless it be an atrocious offence, or when he acts against the interest of the state or commonwealth wherein he bears this office and honour : excepting also when a sentence has been pronounced in favour of matrimony 2. The office of an advocate is not to put the seal of the office to any thing, but to take care of his client in such matters as are matters of law, to propound his client's request in judgment, and to plead his cause in a public manner 3. An advocate subscribing himself to the advice and opinion of another advocate seems to approve of such opinion and advice. III. By a provincial constitution of Peckham, archbishop of Canterbury, it was ordained, "that no one should be allowed to practise as an advocate in any public court of law, without his being first a diligent hearer of the civil and canon law for three years at least," which he was to prove by his own corporal oath, if the same did not appear either by a testimonial from the professor, under whom he had studied the same, or else "per facti evidentiam," viz. by his undergoing an examination. For if a person on his examination shall not be found qualified, in respect of his tical 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." 1 If proctors have not much skill in the laws, yet they ought to be perfectly well acquainted with the practice thereof.-Ayliffe. 2 Lindwood, 1. 17. 1. 3 Justinian's Code, 3. 1. 1. 2. 4 Lindwood, 1. 17. 1. Letters testiwhere he has case, if it be knowledge in the law, he shall not be admitted to be an advocate, cations. IV. A person under the age of seventeen, and likewise a per- Disqualifison who is so deaf by nature, that he cannot hear the command of the magistrate, or the decree of the judge, cannot be an advocate either for himself or for any other person, nor can a clergyman in a cause of blood; because these persons are debarred by a prohibition of law'. Persons who are infamous, or branded with any note of infamy, or condemned of calumny in any public court of judicature, and persons convicted of any capital crime, are, ipso jure, forbidden to be advocates either for themselves or others 8. V. An advocate may incur the censure of the court, and be Advocates punishable. 1 But it matters not whether he has heard the same read in an university or elsewhere, provided he has applied his mind to the study and knowledge thereof with due industry, because the constitution here speaks generally, without the specification of any place. Though the present practice is that he ought to hear the laws read under some doctor or professor thereof, in some place where these laws are publicly read and taught.-Ayliffe. 2 Ayliffe refers to the time when he composed his Parergon, which carries us back a hundred years and more.-Ed. 3 Though admissible, it by no means follows that such a person must be admitted. See the note in Burn's Ecclesiastical Law, vol. i. p. 3, note (c), referring to the decision of the Court of King's Bench in Dr. Highmore's case, 8 East's Reports, 213.-Ed. 4 By 55 George III. chap. 184, schedule part 1. tit. "admission," every advocate, on his admission, must pay 50l. stamp duty.—Ed. 5 Digest. 3. 1. 1. Decrees, 2d part, cause 23, quest. 8, chap. 30. But the canon law forbids a clergyman, even in the lesser orders, to become an advocate and plead causes in a secular court before a temporal judge, unless he either prosecutes his own cause, or that of the Church, or be employed in the causes of such miserable persons as cannot pay for pleading their own cause.-Ayliffe. 'Though a woman cannot be an advocate in the causes of others, lest she should offend against the modesty of her sex, yet she may be an advocate in her own cause; and so may also persons who are blind of both eyes. 8 3 James, c. 5. § 8.-Ed. Judge pro vides advocates for paupers. Advocates' salary. Competent salary. punished for prevarication1; sauciness to the judge; reproachful language in respect of the parties in suit; for agreeing with his client for any part of the thing in dispute during the suit2; and for being a brawler in court on purpose to lengthen out the cause. VI. It belongs to the office of the judge, yea even of a delegated judge, to decree and provide an advocate for the benefit of a person who cannot by his own means, procure such an advocate for himself; for if the party has not an advocate he cannot be compelled to give a personal answer. VII. When there is any dispute about the salary, in such cases, the judge ought to appoint the sum, 1st, according to the eloquence and ability of the advocate; 2dly, in proportion to the import of the cause; 3dly, according to the estate and circumstances of the client; and, 4thly, according to the style and practice of the court. An advocate may even, ex nudo pacto, demand and sue for his salary. But in demanding and suing for it, that which is demanded for the payment of it, ought to be certainly stated and adjudged by a computation of what is due, lest either party should exceed a lawful sum. VIII. Though advocates and proctors regularly ought not to make any pact, contract, or agreement with their clients de quotá litis, because some clients would give the greatest part of their estates through fear of losing their cause, as a weak or sick man would do to his physician through fear of death; yet, according to some men's opinion, a pact or an agreement made ratione palmarii, is a good and valid stipulation, if such advocate gains the cause; and the party may recover the same either by a personal action; by an action ex stipulatu; or else by imploring the judge's office. But this is not practised in England, by reason of the statutes of maintenance and champerty *. 1 Advocates suborning witnesses, or instructing them to suppress the truth, or to speak what is false, incur the penalty of suspension ipso facto. Constitut. Otho, ed. Oxon, p. 71, 72.—Ed. 2 But if an agreement is made after the suit is ended, it is not unlawful, provided it does not exceed a lawful sum, which, according to the civil law, is a hundred aurei, or crowns, for each cause he pleaded or was engaged in. Digest, 50. 13. 1. 12.-Ayliffe. 3 Digest, 3. 1. 1. 4. See more on this point in tit. 13. of this work.Ed. 4 Statute of Westin. ch. 1; 3 Edw. I. ch. 28; 20 Edw. III. ch. 4; 7 Rich. II. ch. 15; 32 Hen. VIII. ch. 9.-Ayliffe. |