This document from 1822 contains a brief and instructions to counsel to provide an Opinion and, towards the end, the Opinion itself. In that regard it will be familiar to most practising lawyers in the UK today: solicitors will often seek advice from a barrister specialising in a particular area of law and will do so by providing a written brief, setting out the background to the case, together with instructions to answer the questions they have on behalf of their client.
What makes this document interesting to me, though, is that counsel being consulted is not a barrister but rather a Doctor-at-Law, a type of legal professional which no longer exists.
The Doctors-at-Law were specialists in disputes involving canon or Roman law. They were therefore referred to as “civilians” or “civil” lawyers, the word “civil” not being used in its modern sense but rather as a contrast with the common law on which the majority of English and Welsh law is based. They were so named because they completed their legal training at the Universities of Oxford or Cambridge where they obtained a doctorate in civil law. This contrasted with barristers who studied common law at the Inns of Court. Like barristers, Doctors-at-Law were members of a professional society, the Doctors’ Commons, which included facilities for them to work, study, live and for some court hearings to take place.
Although they are perhaps best remembered for practising in the Ecclesiastical courts, in the early 19th Century the Doctors-at-Law had monopolies on a number of important areas of law. These included admiralty, probate, and matrimonial disputes. Over the 19th Century all of these monopolies were slowly ended by the merger of these jurisdictions into the common law courts or the opening up of rights of audience in the civil courts to barristers. This resulted in the eventual death of the profession.
The Opinion concerns a dispute about what is now the Church of Christ & St Mary in Armathwaite which is a small village in Cumbria, on the banks of the River Eden. As with many small villages, a “chapel-of-ease” had been established to allow residents to worship without having to travel to their Parish church. I think this was in High-Hesket, about 3 miles away. The cause of the dispute seems to be that all documents relating to the establishment of the chapel had been lost which resulted in a dispute as to who had the right to choose the priest.
The Opinion was sought on behalf of the executors of the estate of Robert Sanderson Milbourne. He had lived in Armathwaite Castle. He and his predecessors had chosen the priest for as long as anyone could remember and since the position was now vacant, his executors wished to do so on behalf of his estate. This appeared to be disputed by the Dean & Chapter of Carlisle Cathedral. Whilst the precise nature of their claim was not known, it is speculated that they were relying on a previous decision of the Chancery Court in Westminster (i.e. the predessor to the modern Chancery Division of the High Court) where it was found that the vicar of the mother-church has a right to nominate a priest to a chapel-of-ease.
The executors’ solicitors took the view that a legal principle called prescription granted them the right instead. Prescription is a process by which the law can recognise certain rights on the basis of long, uninterrupted usage.
It is worth noting that an odd feature of the dispute is that it appears to proceed on the basis of principle alone: there is no dispute as to who should be appointed as the next priest, only who has the right to nominate him. Accordingly, the solicitors also ask whether the executors should nominate someone who they do not wish to appoint with a view to establishing their right to nominate and then revoke that nomination before it is finalised.
Finally, it is worth noting that since a feature of prescription is that such a usage must be exercised without interruption, both the solicitors and counsel were clearly worried that should the Dean & Chapter nominate a priest this would amount to an interruption. There is therefore a degree of urgency.
Contrasts with a Modern Opinion
For the modern lawyer, some features of the Opinion are immediately familiar (or at least were before working became entirely paperless) whereas others are less common.
The document is a single piece of foolscap paper (roughly 13¼ × 16½ inches) which has been folded in half to give four sheets for writing. Each is about the size of a modern A4 page. The document has then been folded in three horizontally for ease of storage. When folded, the outer sheet had was annotated so it is possible to see what the document contains without opening it. All of this was reasonably common when I started at the Bar: instructions would be printed on A4 and then folded in half with the back page (called a “back sheet”) being used as both a wrapper and also for notes about the contents.
On the top of the backsheet is a large X. This is still added today to indicate that a case is concluded and the papers should be returned to the solicitors.
The handwriting after “Case for the Opinion of” changes slightly with the words “Dr Arnold” and “2 Guas” being inserted by different people. I assume this indicates that the solicitors did not have a particular Doctor-at-Law in mind and Dr Arnold was chosen following a discussions about who was available to do the work and the fees he would charge. This still happens today between solicitors and barristers’ clerks. They also still agree a fee (which was also quoted in guineas until shortly after decimalisation) which would be written on the backsheet.
One change, however, is that at the bottom of the page, two solicitors are mentioned: the Carlisle firm who took the instructions from the client and a London firm who instructed Dr Arnold on their behalf. Presumably the reason for this was that if all matters were dealt with by correspondence between Carlisle and the Doctors’ Commons it would have taken a considerable period of time before instructions could be formalised. One still encounters London-based firms acting as agents for those based elsewhere occasionally today, although it is very rare due to the improvements in communication.
The actual substance of the instructions are very similar to what would be provided today and are clear and well set out. Dr Arnold’s advice, however, is much briefer than anything that would really be acceptable today, especially since he does not explain why he has reached the conclusions he has.
It is also notable that whilst the subject matter of the dispute is ecclesiastical, there is nothing notably different about the advice from what might be provided by a barrister.
Some of the terminology used in the instructions are a little obscure today. Whilst I am not expert in this area, I hope this will be a guide:
The solicitors speculate the chapel was originally a “donative” which essentially meant it was a private chapel, presumably for the use of the inhabitants of the castle. At some stage it became a “chapel-at-ease” which was a subsidiary to a parish church to allow people to worship without travelling a long distance. The area within a parish which were served by the chapel-at-ease was called a “chapelry”. Its priest was called a “curate”.
The funding arrangements for the parish were rather complex. Whilst tithes were charged on local landowners and farmers, these were not collected directly by the parish priest but rather the “Dean and Chapter” who were the governing body of the local cathedral. This is why they are described as either the “rector” (who is the person who is entitled to the whole tithe) or “impropriator“ (who is entitled to the “greater tithe” with a separate “vicar”—usually the actual parish priest—being entitled to the “lesser tithe”). Since many rural clergy were poorly paid, a scheme was established in 1704 to improve or augment their income. This was called Queen Anne’s Bounty. Payments from this were, initially, awarded by drawing lots to choose the recipients from eligible parishes.
A very large number of people on Twitter helped me decipher some of the words which I struggled to read; tracked down the solicitors and their London agents; and helped correct some mistakes about ecclesiastical law. I am grateful to all of them!
For the Opinion of
Dispatch with particularly oblige.
for J. Ewart Carlisle
In the Parish of Hesket in the County of Cumberland there is a Chapel at Armathwaite which until the year 1710 was a Donative in the Gift of the Ancestors of the late Robert Sanderson Milbourne Esquire of Armathwaite Castle[,] the Lords of the Manor in which the Chapel is situate. Since that period Mr Milbourne’ Ancestors have uniformly upon ever Vacancy nominated the Curate to the Bishop of Carlisle who granted his Licence in pursuance of the Nomination.
The Stipend of the Curate arises from certain Lands purchased with the testamentary Benefactions of a Mr Skelton, Mr Brown and the Countess Dowager of Gower, and with the Augmentations made from time to time by the Governors of Queen Anne’s Bounty, the first of which was by lot in 1745 and the latter some time after the Death of Mr Brown in 1765 on the application of a Mr Milbourne[,] at the time Patron of the Chapelry and one of the Executors of Mr Brown’s Will[,] in consequence of the Bequest made for the purpose of obtaining it.
There is no Evidence of the Foundation of the Chapel but it is generally supposed to be very ancient; it was rebuilt so long ago as the year 1674 according to the directions contained in the Will of Mr Skelton who therein mentions it to have been in a ruinous condition and leaves £100 for the purpose. It has been since constantly repaired at the Expense of Mr Milbourne and his Ancestors.
This Chapel was for a long time a private one for the accommodation of the Family of Armathwaite Castle but it is since used by the Inhabitants of the Chapelry and enjoys the Privilege of having all the Church Rites performed but that of Marriage which is invariably celebrated at Hesket.
The Dean and Chapter of Carlisle are the Rectors or Impropriators and receive the Tithes of the whole Parish and nominate a Perpetual Curate to serve the Church at Hesket with a Stipend comprised of a salary paid by them and the Augmentation of Queen Anne’s Bounty.
About three or four months ago the Chapel became vacant by the Death of the late Curate and the Dean & Chapter now for the first time claim the Patronage and are about to nominate a Curate to it.
It is supposed that their Claim is made on the Authority of Dixon v Kershaw & al. [(1766) 27 E.R. 341] Ambler. 528. But it must be observed that in that case the exact time of the Foundation was shewn to be a period within which no Prescription could be made. In this Instance, if the case cited be Law, Mr Milbourne’s Title to the Nomination may be established by Prescription since no Evidence can be produced of the original Foundation and his Ancestors have always enjoyed the Right of Patronage without any Interruption.
It has also been said that the Dean & Chapter consider themselves entitled in consequence of the Augmentation made to the Chapelry by the Governors of Queen Anne’s Bounty but no Agreement was ever entered into for vesting the Nomination in the Dean & Chapter and it is submitted that there is no Clause in either of the Statutes 5th Ann c. 24 [sic. probably 6 Anne c 24: The Queen Anne’s Bounty Acct 1706] and 1 Geo St 2 c 10 [The Queen Anne’s Bounty Act 1714] depriving the Patron of his Right of Nomination but with his Consent in Writing under his Hand and Seal.
Mr Milbourne has died since the Vacancy occurred, having appointed Captain Raper & Mr Fawcett Trustees and Executors of his Will. The Dean & Chapter content to nominate the Rev’d Mr Hunter to the Chapelry and Mr Milbourne’s Trustees have the same intention if they have the Right, but do not feel themselves justified in thus compromising the Question. If Mr Hunter should be Licensed on the Nomination of the Dean and Chapter it is presumed that Mr Milbourne’s Trustees must tender a Curate of their own Nomination to the Bishop (if in the opinion of Counsel the Right belong to them) for this purpose of enabling them to institute Proceedings to try the Question and if decided in their Favour they may afterwards revoke the Nomination of their Curate before his Licences and appoint Mr Hunter.
Counsel will therefore please to advise
1st Whether Mr Milbourne’s Trustees and Executors are under the Circumstances above stated entitled to the Right of Nomination to the Chapelry of Armathwaite?
2nd In case you are of the Opinion that they are entitled will it be necessary for them to tender a Curate of their own Nomination to the Bishop for the purpose of enabling them to institute Proceedings to try the Right and[,] if necessary[,] and they should succeed in establishing the Right[,] can they afterwards revoke the Nomination their Curate before he is Licensed and appoint Mr Hunter?
From the Circumstances stated I conceive that the right of Nomination to the Chapel belongs to the person who has succeeded to Mr Milbourne’s legal Estate in the Manor, and accordingly, if that Legal Estate be devised to the Trustees and Executors, that it belongs to them.
In order to maintain the Right, I think that a nomination should be made without delay and before an obstruction be raised against it by the tendering of a nomination from the Dean & Chapter or others.
I am inclined to think that the Nomination may be revoked before a Licence is granted, but not being aware of any Case decided on the precise points I cannot venture to speak positively on it.
[Signed:] Dr Arnold
9 July 1822