by Philip Jones
Ecclesiastical law has often been identified with the law administered in the ecclesiastical courts. However, this law might be more precisely described as the law administered in Doctors’ Commons. Just as common lawyers practised from the inns of court, so ecclesiastical lawyers operated in Doctors’ Commons. It was the ecclesiastical inn of court, located near St. Paul’s Cathedral in the City of London.
The origin of Doctors’ Commons is recorded by Phillimore, quoting from a report of 1832 (Ecclesiastical Law, 2nd edition 1895, p.935). The site was purchased in 1567, although the society of lawyers which settled there dated from 1511 or even earlier, and so predated the Reformation. The site comprised chambers for the judges and lawyers, and ‘proper buildings for holding the ecclesiastical and admiralty courts, where they have ever since continued to be held’. By a royal charter of 1768 the inhabitants of Doctors’ Commons were incorporated as a college.
Phillimore’s account continues:
‘This college consists of a president (the Dean of the Arches for the time being) and of those doctors of law who … having been admitted advocates in pursuance of the rescript of the Archbishop of Canterbury, shall have been elected fellows of the college … no person can be admitted a member, or allowed to practise as an advocate in the courts at Doctors’ Commons, without first having taken the degree of Doctor of Laws in one of the English universities’.
This explains why Doctors’ Commons was so called. The ecclesiastical judges were chosen from among the advocates. As well as judges and advocates there were proctors, who performed functions similar to those of solicitors.
The history and work of Doctors’ Commons are the subject of two excellent modern commentaries, R.H Helmholz Roman Canon Law in Reformation England (Cambridge University Press 1990) and G.D Squibb Doctors’ Commons (Clarendon Press, Oxford 1977).
The cases decided in the courts of Doctors’ Commons were reported by some of the doctor-advocates who practised there. These included Joseph Phillimore, father of Sir Robert. Phillimore pere compiled collections of various reports cited as Phill. He also collected the judgments of Sir George Lee, an 18th century Dean of the Arches (cited as Lee). Doctors Addams (Add), Curteis (Curt), Haggard (Hagg) and Robertson (Rob) also compiled reports.
Dr Haggard’s compilations are divided into two categories. Hag Ecc are reports of cases in a number of ecclesiastical courts. Hag Con are reports of cases decided in the London consistory court only. Lee and Hag Con are 18th century cases, the other collections date from 1809-1853. These collections of reports are now published in the English Reports (ER).
Despite its association with the Church, Doctors’ Commons was rather secular in character. Archbishop Cranmer apparently appointed the first lay Dean of the Arches, Dr William Coke, in 1546, and the last ordained advocate was admitted in 1609 (Squibb, p.28). Thereafter Doctors’ Commons comprised only laymen, not clergy. Indeed the institution became so thoroughly laicised that by 1807 ordination was considered a ground of disqualification as an advocate! The Doctors probably had little contact with the clergy, except when the latter became involved in legal disputes.
It should be remembered that most ecclesiastical courts were not part of Doctors’ Commons. Only the courts of the Archbishop of Canterbury, principally the Court of the Arches and the Prerogative Court, also the Admiralty Court and the London consistory court, operated there. With rare exceptions it is only the judgments of these courts that appear in the published reports.
All the other bishops’ and archdeacons’ courts, including all the ecclesiastical courts of the Province of York, operated locally and their judgments were not reported. Thus it might be more accurate to identify ecclesiastical law with Doctors’ Commons rather than with the ecclesiastical courts as a whole.
The erudite Doctors lamented the poor quality of the local courts. Sir John Nicholl, Dean of the Arches, was particularly critical. In Lee and Parker v Chalcraft (1821) 161 ER 1439 he sighed that ‘If [the Arches] were not to admit the irregularities which take place in the Courts below, a party could hardly ever succeed in obtaining justice before this tribunal’ (p.1441). In Morgan v Hopkins (1818) 161 ER 1238 he allowed an appeal from the Llandaff consistory court, complaining that ‘Irregularities exist in many of the inferior courts: but they are conspicuous in the Court from which this appeal is brought: there the proceedings are not carried on upon the same principles which guide us in Doctors’ Commons’. He was a Welshman and native of the Llandaff diocese!
Most of the work of Doctors’ Commons was of a non-ecclesiastical character. Only a fairly small proportion of the cases decided and reported there are directly concerned with ‘the Church’ as it is now understood. Peter Winckworth calculates that of 1,065 reported cases in the 19th century, only 124 concerned an ecclesiastical subject (A Verification of the Faculty Jurisdiction SPCK, London, 1953, at p.29). The Church courts were mostly concerned with probate, divorce and maritime law (memorably summarised by Sir Alan Herbert as ‘wills, wives and wrecks’).
Of the ‘Church’ cases reported, some concerned clergy discipline and faculties. A large proportion concerned the alleged misfeasance of churchwardens and disputes over their election. There were disputes over ‘sittings’, the rights of parishioners to occupy particular pews in the church or chapel, known as actions for ‘perturbation of seat’. There were disputes between parishioners over their liability for church rates, or the amount due in respect of rates, or tithes. There may be only one reported case concerning the rector’s liability to repair the chancel: Bishop of Ely v Gibbons (1833) 162 ER 1407. When parochial feeling got out of hand, there were prosecutions for the offence of ‘brawling’ in the church or churchyard.
Of these classes of case, only the first two, clergy discipline and faculties, still occupy the ecclesiastical courts. Prosecutions of churchwardens and other lay officers, and actions for perturbation of seat, were abolished by the Ecclesiastical Jurisdiction Measure 1963, s.82(2). Compulsory church rates were abolished by an Act of 1868. Most lay liability to pay tithes was extinguished by the Tithe Act 1936. The ‘spiritual’ rector’s liability to repair the chancel was abolished by the Ecclesiastical Dilapidations Measure 1923. Jurisdiction to enforce the lay rector’s liability was transferred to the secular courts by the Chancel Repair Act 1932. Prosecutions for brawling were also transferred to the seculars courts by the Ecclesiastical Courts Jurisdiction Act 1860.
The creation of the Ecclesiastical Commissioners by Parliament, and the extensive legislation of the 19th century concerning pastoral reorganisation greatly reduced the scope of the ecclesiastical courts’ jurisdiction over the Church. Statutory regulation of pastoral reorganisation and ecclesiastical fees abrogated many local customs, and thereby removed the need for ecclesiastical courts to adjudicate them.
Eric Kemp traced the increasing involvement of Parliament in the regulation of ecclesiastical matters. He calculated that between 1530 and 1760 there was an average of 2.5 ‘ecclesiastical statutes’ every year. Between 1760 and 1820 the average rose to 10 a year. Between 1820 and 1870 the average leaped to 25 a year (Counsel and Consent, SPCK, London, 1961 at p.172).
The Doctors were understandably unenthusiastic about this new ecclesiastical activism on the part of the Legislature. In Bliss v Woods (1831) 162 ER 1235, which concerned the right officiate in a chapel, Sir John Nicholl found that the relevant Church Building Act ‘is so loosely and carelessly penned that it bears every appearance of having been hastily drawn’ (p.1249). In Varty and Mopsey v Nunn (1841)163 ER 616, a chuch rate case, the Chancellor of London grumbled that ‘It has been no easy task to discover the true meaning of the local Act [which fixed the church rate in the area] but that Act is light itself compared with the obscurity of the Church Building statutes’ (p.621).
Writing in the mid-20th century, Eric Kemp also regretted the heavy incursion of Acts of Parliament into ecclesiastical law that occurred in the 19th century. He argued that ‘a statute is not the best instrument for directing the spiritual life of a community [as] … the experience of the last hundred years has shown’ (An Introduction to Canon Law in the Church of England, Hodder and Stoughton, London, 1957, p.75).
This deprecation of statute law may be a little unfair. Even if they had the inclination, the ecclesiastical judges and the clergy in Convocation had no power to effect significant structural reform of the Church so as to address the increase of population and urbanisation of the period. Only Parliament could do this. Structural reform was plainly necessary, to clear away the undergrowth of ancient and outdated ecclesiastical laws and thus enable the promulgation of new laws. Kemp himself observed that in 1832 there were no fewer than 386 ecclesiastical courts (p.49).
In 1857 the responsibility for administering the law concerning wills and wives was transferred by Act of Parliament to newly established secular courts. Jurisdiction over wrecks was transferred two years later. The reforms of 1857 ‘sealed the fate of Doctors’ Commons’ (Squibb, p.96). Despite protests, the land, buildings and library were sold of and the proceeds distributed among the remaining Doctors.
In ‘The Fall and Rise of Doctors’ Commons’ (Ecclesiastical Law Journal 1996), Paul Barber makes an interesting case that, although the college undoubtedly ceased to function in the mid-19th century, it was never truly dissolved. He speculates optimistically that ‘another generation might see the Doctor’s scarlet in the Ecclesiastical Court’.
The case law of Doctors’ Commons is still cited in modern divorce and probate law. It may well remain relevant to the understanding of Church of England doctrine. The case law was, after all, based on that doctrine, and the doctrine was unaffected by the reforms of the mid-19th century. The report The Canon Law of the Church of England (SPCK, 1947) referred to Lord Stowell’s ‘magnificent judgment in the case of Evans v Evans (1790) [161 ER 466] where he expounds the lifelong nature of the bond of Christian marriage … with a beauty of language, a lucidity and a reverence for the institution of marriage …’ (p.55). That judgment no longer represents the English law of marriage, but that does not mean that it does not express the Church of England’s doctrine of marriage.