HC Deb 10 August 1807 vol 9 cc1154-8
Mr. W. Smith

observed, that he had a Petition in his hand containing matters of a very grave and serious nature. The statements in the petition were such, that though no man was more disposed than he was to lay any complaint before the house, he would have hesitated to present it were it not that it contained matter of great moment to the public in general. The petitioner Nathaniel Highmore had studied the civil law for 11 years at Jesus college, Cambridge; had performed his exercises with applause, and taken out his degree of doctor. The grievance was, that he was not permitted to practise in Doctors Commons, in consequence of the refusal of the archbishop of Canterbury, to give him the proper authority. He had applied for redress to the courts of law, but could not be heard; he had, therefore, no appeal, though rejected without any reason assigned. This was an affair of so serious a nature, that if the allegations of the petition should be proved, it ought, perhaps, to be made the subject of legislative regulation hereafter. But he meant to give no opinion on it at present. He imputed no blame to the metropolitan or his officer. They had not acted without precedent, for it was not the practice for 7 years past to give a reason in cases of rejection. He was happy to see those opposite to him (the advocate-general, &c.) who might, perhaps, explain this business. The practitioners of the common law were admitted by the benchers; but they never rejected without reason, and there lay an appeal to the 12 judges. But the present petitioner had in vain attempted to be heard before any court, and that was the reason that he had now come to parliament for redress. The reason privately assigned for this, for none was publicly assigned, was, that the petitioner was in deacon's orders. Even if owing to this he was to be considered as a spiritual person, it was not a reason why he should not practise in a court of civil and ecclesiastical law, and more especially as the practice was, till the 37th of Henry the 8th, entirely confined to spiritual persons; and the chancellorships of the dioceses were still in the hands of spiritual persons. The public had a strong interest in tins case, for it appeared to be decided by a side wind, that persons in deacon's orders were unqualified for practising in the ecclesiastical court, and that without any legislative provision on the subject. The hon. gent. then adverted to a book written by one of the Civilians, so late as 1804, which contained a passage, stating that, in 1764, a person, in deacon's orders, had applied to archbishop Secker, and was rejected, because it was more agreeable to the doctor's practising; and the reason was, that they apprehended the society would become too numerous if this was permitted. Doctors, therefore, appeared to differ on this point; but this writer seemed to think, that being in deacon's orders was no objection; but that the rejection was because it was more agreeable to the actual practitioners, who were apprehensive that the society would become inconveniently numerous. Now, that a gentleman, who had studied at Cambridge, and therefore might be considered as in this instance standing up for the privileges of the university, should be neglected merely because it might be more agreeable to the society that he should be so, was a point that required some attention from the legislature. They apprehended that the society would become inconveniently numerous. As to that point, there certainly appeared no reason to think that those who were to study 11 years at Cambridge before they were admitted, would incommode the society, supposing that this were an argument worthy of any attention. The power to reject without appeal was too great to be entrusted to any man. This gentleman had gone through all the forms, and if the power of rejection without appeal was to be allowed, the principle would go this length, that not only those who desired to be admitted, but those who were already admitted, would be dependent entirely on the archbishop. But it was said that the archbishop had granted his fiat, without knowing that the petitioner was in deacon's orders, and withdrew it upon receiving information that this was the case. This, however, was not alledged publicly. All that was alledged was, that the thing was not agreeable to the practising doctors. He had some other things to state, but as he had taken up the time of the house so long, he would finish for the present, trusting that the house would take up the matter with that seriousness which its importance seemed to deserve.—The hon gent. then presented the petition, which was read at the table. It stated, "that the petitioner, Nathaniel Highmore, doctor and professor of civil law, and member of Jesus college, Cambridge, was, during 11 years, a student of civil law in the university of Cambridge, in consequence of which he obtained the degree of doctor and professor of civil law; and that this degree has ever been held, as by the statute and canon law ordained, a qualification for, and as giving a right to exercise the profession of, an ecclesiastical advocate in the courts of civil and canon law, holden in Doctors Commons, and which courts are placed under the administration of the archbishop of Canterbury; and that the rights, privileges, and immunities of the university of Cambridge are guaranteed and secured by divers royal patents and charters, confirming the same to its different members, and to their several academic degrees; by one of which charters, it is especially provided, that doctors in civil law shall experience neither hindrance nor obstruction in their admission into all ec- clesiastical offices, whether with or without the cure of souls, the latter of those, as the petitioner conceives, including the office of an ecclesiastical advocate; and this, together with the other charters of that university, was confirmed by an act of the 13th [...] Elizabeth; and the petitioner further states, that having received from the register of the said university a certificate of such his full and complete qualification, he did, consequence thereof, duly and regularly obtain the fiat of the archbishop of Canterbury, in pursuance of which his grace's rescript, or commission, appointing him to this ecclesiastical office, was made out, and sealed with the seal of the vicar-general of the province of Canterbury; and that having, notwithstanding such his qualification and his commission, been refused admission, to exercise thereunder his spiritual and canonical profession, and having in vain appealed to the archbishop of Canterbury, as also to the visitors of the college of doctors of law, applying to his grace, and to the said visitors, for an hearing of his case, and for redress of the injury by him sustained, he did carry his suit into the court of king's bench, and did apply for a rule to shew cause why a mandamus should not issue for his admission: which application was however refused by the said court, for the reason that the petitioner had not been able to shew his right to be admitted to this ecclesiastical office, on any grounds of which that court could take cognizance; and unable as the petitioner thus was to obtain, in a court of civil jurisdiction, a discussion of his title and of his qualification for this spiritual office, he applied to the archbishop of Canterbury for permission, in a court of spiritual jurisprudence, to plead his case, but with which application for such public hearing it was deemed unadvisable to comply; and that having been thus excluded from the exercise of his canonical and clerical profession, on the ground of his having formerly taken the orders of a deacon, he has, by the refusal of an hearing to his case, been deprived of the opportunity of shewing, in the first place, that he was duly authorized to divest himself, and did divest himself, of those orders and of his clerical character; and secondly, that although he were even still a clergyman, he would not thereby be disqualified; and therefore praying the house, to take his case into consideration, and grant him relief."—On the question, that the petition do lie upon the table,

The Advocate-General

observed, that as the hon. gent. did not mean to institute any proceeding immediately upon the petition, it would not be necessary for him to go at length into the consideration of it. He had only to state, that the petition was founded upon a great misapprehension of facts, and a great misapprehension of legal principles, as applicable to those facts. He did not mean, however, to charge the misapprehension on the hon. gent.

Mr. W. Smith

stated, that the allegations in the petition, were founded on the allegations in an affidavit made in the court of king's bench.—The petition was then ordered to lie on the table.