Proctors were the workhorses of the ecclesiastical courts in England, as they were across most of western Europe. They prepared the routine documents and made the required appearances on behalf of the parties in the civil causes that came before those tribunals.Footnote 1 Every English consistory court was served by a resident staff of proctors. For historians, however, it has not been the proctors but the judges, advocates and academics who have received the lion's share of attention.Footnote 2 That emphasis does seem appropriate. By contrast with the advocates, few proctors are found among the men admitted to fellowship in Doctors’ Commons in London, and even fewer were authors of treatises that have claimed and retained a place in historical accounts of English ecclesiastical jurisdiction. As a rule, proctors were not university graduates; they were paid accordingly less for their services than advocates were, and they have left fewer marks on the historical record than did the advocates.Footnote 3 The few among the English proctors who have attracted any modern interest (like the subject of this note) have done so because they also did something else – something seemingly more worthy of note than the routine practice of ecclesiastical law. This neglect, natural though it has been, risks going too far in ignoring the contributions of the men who made up the great majority of ecclesiastical lawyers. Examination of the person and career of Henry Charles Coote demonstrates the worth of taking a closer look.
COOTE'S LIFE AND CAREER
Coote was the son of Charles Coote, the advocate who (among other accomplishments) compiled the work known as Sketches of Eminent English Civilians. It was the first published catalogue of the lives and careers of the men whose names were found in the subscription book of Doctors’ Commons.Footnote 4 Wherever he could, the author added a description of their persons and careers that remains valuable to this day. The elder Coote was 55 years old at the time of his son's birth. By then it was certain that he would not be a financial success as an advocate. In the Sketches, he described himself as having ‘rather patiently waited [for] employment than eagerly sought it’.Footnote 5 Too few clients came. Perhaps that points to one reason why the son did not follow his father in the study of civil law at Oxford.
Henry nevertheless did follow the father in his choice of profession and was admitted a proctor at Doctors’ Commons in 1838.Footnote 6 Within the courts of the Church, he subsequently made a speciality of practice before the Prerogative Court of Canterbury (the PCC), the tribunal which exercised the Archbishop of Canterbury's prerogative jurisdiction over wills and estates of persons who had died with property worth more than £5 in more than one diocese.Footnote 7 The PCC was the principal probate court in England, and Coote was proud, even boastful, of the Church's hold on this segment of the English legal system. In his view, ‘the nation has owed a deep debt of gratitude to the clergy and this court for the maintenance and defence of the freedom of testamentary disposition’.Footnote 8 As he wrote those words, the nation was about to renege on that ‘deep debt’. Enactment of the Court of Probate Act in 1857 ended the Church's hold on what remained of its jurisdiction over last wills and testaments. The PCC disappeared. The Act established a secular system of courts of probate in its place.Footnote 9
Coote made the transition, however. Doctors’ Commons was wound up but its members were invited to continue as barristers and solicitors in England's other courts.Footnote 10 Even if it was a grudging choice, Coote accepted the invitation, extending and exercising his knowledge of the law of wills and trusts in its new setting. He became a solicitor and in 1858, he produced what would become the standard treatise on the subject, Practice of the Court of Probate. This work filled an obvious need. Coote's intent was to make ‘the old learning of Doctors’ Commons, in its new statutory context, available to the unspecialised legal profession’.Footnote 11 It was an immediate success. The first edition was followed by the second and third in 1859 and 1860. By the time of Coote's death on 4 January 1885 it had reached its ninth edition. The treatise was not allowed to die with its author; instead it was taken over and continued by T H Tristram (1825–1912). Long known as Tristram and Coote's Probate Practice, its most recent edition (the thirtieth) appeared in 2006.Footnote 12
By any measure, Coote's career was one of accomplishment. He also wrote a guide to the law and courts of admiralty.Footnote 13 He entered the field of historical controversy, first in journal articles and then in a small book called A Neglected Fact in English History (London, 1864). Today, whatever reputation he enjoys among historians comes from the best known of his historical research rather than for his work as a proctor or solicitor.Footnote 14 This book's theme, supported by numerous examples, was that many of the laws and institutions of Roman Britain did not disappear with the invasions of the Angles and the Saxons. Rather, they were taken into Anglo-Saxon practice and left a permanent mark on the later history of English law. Modern scholarship has returned to this subject, although its students rarely mention Coote's Neglected Fact.Footnote 15 Perhaps the work is ‘extreme and over-simplified’ in some of its treatment of the evidence.Footnote 16 It is nonetheless a book that can be read with profit.
COOTE AS A PROCTOR
Whatever his other accomplishments, it is as a proctor that Henry Charles Coote deserves attention in a series devoted to notable ecclesiastical lawyers. Most significantly in this regard, he stands out as the compiler of a noteworthy formulary, a book of documents used in litigation, joined together with his own commentary on its contents. This work was published as The Practice of the Ecclesiastical Courts (1847). It is a fine example of the contribution most characteristic of the work of English proctors. In fact, Coote's Practice followed and improved upon a tradition that stretched back to the thirteenth and fourteenth centuries, a tradition that was still alive in the nineteenth.Footnote 17 For centuries, proctors had collected the forms then used in the courts into what are now called either formularies or precedent books. Their compilers did so for their own uses and for those of the men who would come after them in the consistory courts. With the passage of time and the shrinkage of ecclesiastical jurisdiction in England, most of these collections have disappeared. But many also remain today – virtually all of them in manuscript.Footnote 18 They are to be found in some unexpected places but the largest part remain in diocesan and county record offices throughout England.Footnote 19 It is a large class with many variations; some of them are quite short, others are long and exhaustive. Probably their closest equivalent in the world of the common law would be the many books of entries that were compiled and used by generations of English common lawyers.Footnote 20
Little attention has been paid to formularies in recent accounts of the work of the ecclesiastical courts. They seem both elementary and tedious to most modern students. Indeed, as a young man I myself described them as ‘of little use in understanding actual practice’ in the courts of the Church.Footnote 21 This was a mistake on my part. It was true in a sense, but it ignored the function that formularies were meant to serve. They were designed to allow proctors both to understand and to make proper use of the procedures and formal documents needed in litigation. They were not intended to allow historians to draw conclusions about the frequency or the efficacy of particular features of the Church's legal system. Without the forms and other aids found in formularies, proctors would have been at sea in serving their clients. With them, they could act effectively. That is what the formularies were meant to accomplish and it is what they did accomplish. Coote's Practice of the Ecclesiastical Courts thus belongs within a long and creditable tradition of his profession.
It is one of the best of its kind but of course necessarily also one of the last – 996 pages in an octavo edition, including 102 pages devoted to the author's scholarly introduction to the history and legal status of ecclesiastical jurisdiction in England. His treatment, the Introduction announced, would be ‘confined to the more striking and curious features’ of his subject.Footnote 22 This is true, at least in part. The volume contained controversial material, such as the forms taken from the disciplinary proceedings brought against Dr Edward Drax Free for gross sexual improprieties, a case that had scandalized Victorian society.Footnote 23 Coote also discussed the controversial subject of jactitation of marriage – false and malicious boasting of the existence of a marriage bond. Suits against such boasters were, he noted, ‘of very unfrequent occurrence’ but, leading as they did to ‘a judicial imposition of silence upon the offender’, he held to the view that they were nonetheless ‘of great practical utility’.Footnote 24
Most of the Introduction, however, is taken up with a sober assessment of the origins of ecclesiastical jurisdiction and a description of its character. It is particularly full in explaining the slow steps that had led to the establishment of the Archbishop of Canterbury's prerogative rights to administer the estates of those who had died with bona notabilia in more than one diocese.Footnote 25 Coote's narrative takes full account of the canon law on the subject. It comes complete with citation of the texts and mediaeval commentary on texts found in the Gregorian Decretals and also an account of the force of custom in the ius commune. In addition, he had at least some familiarity with English common law, citing authority found in the Yearbooks, Glanvill, the Abbreviatio placitorum, Fleta, and the works of John Selden.Footnote 26
Coote's Introduction thus demonstrates the extent of legal sophistication that a proctor could achieve, despite the lack of a university degree or association with the Inns of Court. It is also balanced by the author's pride in the court system in which he had grown up and prospered. The convenience of the wide dispersal of spiritual courts among local communities, the ‘precise and accurate method’ of gathering evidence within them, and the base they long enjoyed in the ‘refined and ancient’ sources of Roman law, taken together, had produced what he called ‘the most beneficial consequences for the English law and institutions’.Footnote 27 At the same time, Coote was frank in acknowledging the existence of a fault inherent in England's system of ecclesiastical courts. The weakness that afflicted spiritual jurisdiction, he wrote, ‘always consisted in its inability to enforce its own decrees’.Footnote 28 The courts of the Church depended upon the temporal sword to deal with contumacious defendants.Footnote 29 Even with this handicap, for Coote the lasting value of ecclesiastical jurisdiction over the centuries seemed evident. England's law had been enriched by its existence.
CONCLUSION
The greater part of Coote's Practice of the Ecclesiastical Courts was not, of course, taken up by its author's discussion of the merits of the Church's legal system. The book was mostly a collection of documents. It provided the forms, together with commentary, that were used by all proctors in the diocesan courts. They had been useful; soon they would be useless. New forms would be needed. Despite Coote's passage to the status of solicitor, it is difficult not to believe that he was anything but saddened when the greater part of the jurisdiction of the ecclesiastical courts was swept away by the Parliamentary statutes a few short years after this work's publication. There was no second edition. Coote had taken pride in his service as a proctor. A proctor's office, he wrote, had always been to assist ‘the illiterate or inexperienced client’, acting ‘to guide him through the difficulties and niceties of his suit’.Footnote 30 Very soon thereafter, the disappearance of that office would be a reality he had to accept.
