The Practice of Law in Victorian England
The legal profession in England and Wales has been divided into two groups, Those who pleaded and worked on behalf of clients—the barristers, solicitors (also known prior to 1873 as attorneys at law), and formerly also advocates and proctors. And those who heard cases and made decisions—judges and magistrates (also known as Justices of the Peace).
Solicitors are legal practitioners who deal with the more traditional requirements of the law, such as wills, title deeds for property, inheritance, divorce, and general legal advice. Solicitors are much more numerous than Barristers, and are considered socially to be of a much lower class of the gentry and the law profession than Barristers. Solicitors were usually called Attorneys (-at-Law) until 1875. They were members of the Inns of Court up to the end of the 17th century, but then trained at one of the Inns of Chancery during 18th-19th centuries until these closed. Some solicitors went to university, including most since the late 19th century in university law schools. He had to serve a period of training with a qualified solicitor, known as articles, before he could be admitted as a solicitor; from 1728 this was five years, but is now only two. Prior to 1875, solicitors specialized in equity matters, and attorneys practised in the superior courts of common law representing suitors who did not appear in person. After this date proctors, attorneys and solicitors all became known as solicitors.
A Barrister is the lawyer who is allowed to plead a case in court. Barristers can be selected on merit to become a member of one of the Inns of the Temple in London’s major courts, and might then be nominated to become a Judge. Their function is to use the codes of law that have been handed down by tradition over hundreds of years, and have become the standards of the courts. Barristers usually attended a university (only Oxford and Cambridge until Durham and London were founded in the 1830s. They were admitted to the bar through an Inn of Court and acted as advocates in court as well as advising on specialist points of law. The three levels of barristers were: ordinary barristers, King’s or Queen’s Counsel, and Serjeants at Law.
Barristers versus Solicitors. A solicitor cannot be a barrister and speak at the bar, and a barrister cannot be enrolled as a solicitor.
Canon Lawyers: In the church courts as well as the Court of Admiralty and the Court of Delegates, the solicitors were known as advocates and the barristers as proctors. Advocates were generally doctors of law with university degrees. At the end of the 15th century they formed an association that developed into the College of Advocates, situated in an area that had become known as Doctors’ Commons near St Paul’s Cathedral. In spite of the requirements of canon law, very few advocates worked in the church courts, most of them for the Archbishops of York (at York) and Canterbury (at London) and for the Bishop of London. Outside London and the courts centered at Doctors’ Commons the proctors (or procurators) work almost universally in the local archdeaconry and bishops’ courts. They have usually been apprenticed to other notaries for a seven-year term and are not normally graduates. At the start of their careers, like the attorneys, they are formally admitted to practice by the various courts.
Justices of the Peace (or magistrates) are unpaid laymen. Until very recent times they had no formal legal training, though a stipendiary magistrate in the busier courts is salaried and legally qualified. Magistrates are appointed by the Crown and in order to qualify, by an Act of 1439, they have to have an estate within the county in which they served worth at least £20 a year. This was increased to £100 in 1731, but occupation of a house rated at £100 per annum became an alternative in 1875.
Common law and statute
The common law is the law declared by judges, derived from custom and precedent. It originated with the legal reforms of King Henry II in the 12th century and was called “common” because it applied equally across the whole country. The doctrine of binding precedent, whereby courts follow and apply the principles declared in previous cases decided by more senior courts, known as “courts of record”, is also known by the Latin expression “stare decisis”.
The common law includes both substantive rules, such as the offence of murder, and procedural ones, such as court procedure rules derived from the inherent jurisdiction of the court.
Common law rules may be superseded or replaced by legislation, which is said to “trump” or take precedence over the common law
Common law and Equity
The common law was historically administered in the king’s courts, and equity developed as a separate system of mainly discretionary remedies administered by the Lord Chancellor, often as a way of ameliorating the injustice done by inflexible rules of the common law.
The Court of Chancery was a court of equity in England and Wales that followed a set of loose rules to avoid the slow pace of change and possible harshness (or “inequity”) of the common law. The Chancery had jurisdiction over all matters of equity, including trusts, land law, the estates of lunatics and the guardianship of infants. Its initial role was somewhat different: as an extension of the Lord Chancellor’s role as Keeper of the King’s Conscience, the Court was an administrative body primarily concerned with conscientious law. Thus the Court of Chancery had a far greater remit than the common law courts, whose decisions it had the jurisdiction to overrule for much of its existence, and was far more flexible. Until the 19th century, the Court of Chancery could apply a far wider range of remedies than common law courts, such as specific performance and injunctions, and had some power to grant damages in special circumstances. With the shift of the Exchequer of Pleas towards a common law court and loss of its equitable jurisdiction by the Administration of Justice Act 1841, the Chancery became the only national equitable body in the English legal system. From the time of Elizabeth I onwards the Court was severely criticised for its slow pace, large backlogs, and high costs. Those problems persisted until its dissolution, despite being mitigated somewhat by reforms, particularly during the 19th century. Attempts at fusing the Chancery with the common law courts began in the 1850s, and finally succeeded with the 1873 and 1875 Supreme Court of Judicature Acts, which dissolved the Chancery and created a new unified High Court of Justice, with the Chancery Division – one of three divisions of the High Court – succeeding the Court of Chancery as an equitable body.
Queen’s Bench– A Second Division of the High Court from the Supreme Court of Judicature Acts. Hears all cases which involved the Queen in some way “pleas of the crown” With the exception of revenue matters, which were handled by the Exchequer of Pleas, the Queen’s Bench held exclusive jurisdiction over these cases.
(The words were duly changed to reflect gender during the reign of a male monarch.)
Common Pleas– jurisdiction was over “common pleas,” cases where the king had no interest. This in practice meant cases between subject and subject, including all actions taken under praecipe to recover debts or property, which made up the vast majority of civil cases. As such, the Common Pleas “was the court which more than any other shaped the common law. The court stood on an equal footing with the Exchequer of Pleas, Court of Chancery and King’s Bench in relation to transferring cases between them. Any errors on the part of the Common Pleas would be corrected by the King’s Bench through a separate action brought there. The Common Pleas maintained its exclusive jurisdiction over matters of real property.
For almost all of its history, Serjeants at Law and King’s Serjeants were the only advocates given rights of audience in the Court of Common Pleas. As part of the Court of Common Pleas the Serjeants also performed some judicial duties, such as levying fines. In 1834 Lord Brougham issued a mandate which opened up pleading in the Court of Common Pleas to every barrister, Serjeant or not, and this was followed for six years until the Serjeants successfully petitioned the Queen to overturn it as invalid. The Serjeants only enjoyed their returned status for another six years, however, before Parliament intervened. The Practitioners in Common Pleas Act 1846, from 18 August 1846, allowed all barristers to practice in the Court of Common Pleas.
The 1873 and 1875 Supreme Court of Judicature Acts, created a new unified High Court of Justice, with the Common Pleas Division – one of three divisions of the High Court
Canon law of the Church of England
Canon Law: A set of ordinances and regulations made by ecclesiastical authority (Church leadership), for the government of a Christian organization or church and its members. It is the internal ecclesiastical law, or operational policy, governing the Catholic Church (both the Latin Church and the Eastern Catholic Churches), the Eastern Orthodox and Oriental Orthodox churches, and the individual national churches within the Anglican Communion. The way that such church law is legislated, interpreted and at times adjudicated varies widely among these four bodies of churches. In all three traditions, a canon was originally a rule adopted by a church council; these canons formed the foundation of canon law.
The Church of England maintains four Canon courts. They are:
Arches Court- The Court of Arches is the provincial Court of Appeal for Canterbury. It has both appellate and original jurisdiction. It is presided over by the Dean of the Arches, who is styled The Right Honourable and Right Worshipful the Official Principal and Dean of the Arches. The dean must be a barrister of ten years’ High Court standing or the holder or former holder of high judicial office. The proper jurisdiction of the court is over only the 13 peculiar parishes belonging to the archbishop in London. But, as the office of Dean of the Arches is united with that of Principal Official, the dean receives and determines appeals from the sentences of all lesser ecclesiastical courts within the province. Many original suits are also heard, where lesser courts waive jurisdiction by letters of request. Appeal lies with the Privy Council, except on matters of doctrine, ritual or ceremony, which go to the Court for Ecclesiastical Causes Reserved
Court of Faculties- The jurisdiction conferred upon the Archbishop of Canterbury by the Ecclesiastical Licences Act 1533 is exercised by the Court of Faculties. This includes the appointment and removal of notaries public, and the granting of those licences and faculties which are the concern of the Archbishop of Canterbury, such as special and ordinary marriage licences. The Lambeth degrees are also conferred by the Court of Faculties. The Master of the Faculties, who is appointed by the Archbishop, subject to the approval of the Crown, is also the Dean of the Arches.
1 creates rights as to pews, monuments, and rights of burial;
2 grants licences such as marriage licences, a faculty to erect an organ in a parish church, to level a churchyard, or to exhume bodies buried in a church cemetery.
3 issues notaries public, after the passage of the Ecclesiastical Licences Act 1533 (UK), which was a direct result of the Reformation in England. Notaries public in Commonwealth jurisdictions such as New Zealand and Australia are appointed through the office of the Archbishop of Canterbury by the Court of Faculties.
4 issues faculties for the creation and conferral of Lambeth degrees.
Consistory Court- Originally, the jurisdiction of consistory courts was very wide indeed and covered such matters as defamation, probate, and matrimonial causes as well as a general jurisdiction over both clergy and laity in relation to matters relating to church discipline and to morality more generally and to the use and control of consecrated church property within the diocese. By the end of the eighteenth century, the exercise of jurisdiction over the laity in moral matters had fallen into desuetude. In 1855 the defamation jurisdiction of the ecclesiastical court was brought to an end and in 1857 the probate jurisdiction was transferred to the newly created Court of Probate and the matrimonial jurisdiction to the newly-created Divorce Court. A major part of the jurisdiction left to the ecclesiastical courts was that which concerned the control of consecrated ecclesiastical property – essentially churches and their churchyards and certain other consecrated places such as municipal burial grounds. The other major aspect of their jurisdiction which remained was their criminal jurisdiction in relation to the clergy – i.e. their jurisdiction to deal with allegations of ecclesiastical offences against the clergy (for example for immoral conduct, neglect of duty or in relation to doctrinal or ceremonial matters).
Prerogative Court- One of the English provincial courts of Canterbury and York having jurisdiction over the estates of deceased persons. They had jurisdiction to grant probate or administration where the diocesan courts could not entertain the case owing to the deceased having died possessed of goods above a set value in each of two or more dioceses. The Prerogative Court of Canterbury (PCC) was a church court under the authority of the Archbishop of Canterbury, which was responsible for the probate of wills and trials of testamentary causes where the value of the goods involved was greater than five pounds, and the property was held in two (or more) dioceses within Great Britain. While wills might also be proven at York, Canterbury’s jurisdiction covered Southern England (including London) and Wales. Its archive also contains large numbers of wills relating to individuals who died abroad, but who owned property in Britain. In the period between 1680 and 1820 the Court proved on average 3,700 wills a year, including large numbers of Irish and colonial wills, and those of soldiers and sailors who died while in service.The jurisdiction of the prerogative courts was transferred to the Court of Probate in 1857 by the Court of Probate Act 1857. Now it is primarily concerned with the wills of bishops, clergy and those that leave property to the Church in multiple jurisdictions of the Church.