The Express.
London, England, 1848-02-02 00:00:00

LAW Enttittetna.

EQUITY COURTS.
Before Fine-Cdancellor Knight Bross
RIALTN V. WINDSOR, STAINES, AND DOUTR- 'STERN
RAILWAT COMPANY.—INJUNCTION DISIOLTED.—II may
be remembered that the plaintiff in this case obtained an
injunction ex parte to restrain the defendants from entering
upon his land without payment of a sum of 50W., which had
been agreed to be paid to him for purchase money, and for
severance.—Mr. Wicks as, on behalf of the company, now
stated that the entry on the land, on account of which the
injunction had been granted, had taken place owing to •
mistake in the plans, upon which the piece of land entered
upon was ascribed to a different proprietor. The company
had now paid the 5001. and all matters had been arranged
and the present application was to have the bill dismisaeti
and the Injunction dissolved.—Mr. Russell and Mr. Smythe,
on behalf of the plaintiff, consented, and the order was made
accordingly.
Ex PARTE RUETER O. EVANB.—PURCEASE BT AS-
SIGNEE OP PART OF BANKRUPT'S PEOPERTT.—The bank-
rupt was entitled under • settlement to • reversionary in-
terest in the event of his surviving his wife, but subject to
his maintaining the family. The creditors' assignee was one
of the trustees, and in that capacity now sought leave to
purchase the bankrupt's contingent interest for 71.11. The
official assignee concurred in the petition, which was sup-
ported by affidavits so to the value of the interest —Mr.
Smile, in support of the petition, said that the commissioner
had conaidered and approved of the purchase, but thought
he had no jurisdiction to confirm it. —The Vice-Chancellor
said it was clearly a property which it would be worth no
one else's while to buy, and directed the purchase to be
completed.

COURT OF QUEEN'S BENCH.
THE BISHOP OP HEREFORD.—JUDGMENT.
Before Lord Denman, Mr. Justice Patteaon, Mr. Justice Coleridr,
and Mr. Justice Erie.

[The decision of Mr. Justice Erie and of Mr. Justice Cole-
ridge appeared yesterday in our entire impression, but the
following only in • second edition.]
TRH QUEEN O. THE ARCHBISHOP OF CANTERBURY,—
JUDOUENT.—MT. Justice Patteson did not propose to enter
into a full examination of the canon and statute law that had
been cited by counsel during the course of theargument. The
quotations had established, in the most satisfactory manner,
the fact, that in all christian countries. and in England also,
previous to the statute 25 Henry VIII. the bishop elect
whether chosen by the people, or by the people and clergy,
or by the cathedral clergy, required to be confirmed
in his new office, in order that the election should be per •
fected i •and moreover it was clear that the act of con-
firmation was a judicial and not a ministerial proceed-
ing. Coming after, and by way of review of, the elec-
tion of the bishop, it could not be raid to be a part
of that proceeding, and moreover it was • most nem-
sary act, as corroborating • popular election, and rendered
the more so when the choice of a bishop was restricted
to a smaller body, for all were interested in preventing the
mischief that must ensue if an improper person were in-
stalled in the office el a bishop. It was for that reason per-
eons were cited to appear, both generally and specially, if
they had anything to urge against the confirmation of the
bishop elect, and such citation had been resorted to in the
present case. It was sufficient, therefore, for him
to say that before the statute 25th of Henry
VIII. was pissed, he was of opinion the bishop elect
must be confirmed, either by the Pope or by the spiritual
persons indicated by him for such purpose. There were
several iastanoes recorded in the books wherein the archbishop
had refused the rite of confirmation ; and Walton's "Anglia
Sacra " had preserved many such cases, wherein the elec-
tions of bishops had, in consequence of this refusal, been an-
nulled. All these cases, however, were prior to the statute
of Henry VIII., and all anterior elections were free of the
royal authority, though proceeding under a conge
The crown used to influence the election of a bishop by re-
commendation, but exercised no direct power, nor was any
statute in existence giving such power to the King. There-
fore no interference with the prerogative was offered by de-
laying or refusing confirmation. The cases which were
preserved in the books, and which had been cited, showed that
during the period to which he referred, confirmation was an
essential towards constituting • bishop, as, without
it, he could not assume has office, for the denial
of that rite had constituted a tOS,OII for ancel-
ling election. Taking it therefore to be esta-
blished by the authorities cited that, prior to the statute
25 Henry VIII., the rite of confirmation was essentisl, he
now would proceed to look at that act with • view to
ascertain how it operated in respect to rendering confirma-
tion a mere ministerial act, which might be dispensed with
The archbishop was required to confirm, but not without
inquiry. The statute was silent on that point. He appre-
hended there could be no doubt but that it was intended the
election should be free,nnd the consecration as of old times
accustomed, and consequently a judicial ace It was con-
tended that confirmation was not a mere form. It was pro-
vided that, in case of the refusal of the dean
and chapter to elect, the archbishop should pro-
ceed at once to invest and consecrate. In such case no
mention whatever was made of confirmation. The legisla-
ture seemed to consider confirmation unnecessary when there
had been no election. In the Irish act abolishing elections,
even the form of them, no mention was made of confirma-
tion, from beginning to end ; hence it was contended that as,
where the crown appointed by letters patent, confirmation
was not meant to be a judicial act, neither was it so
intended in the case of a pretended election by the dean and
chapter; but that the form of election having been
=, so had that of confirmation, and that neither was
m be more than a shadow. It was difficult to say
why confirmation should be necessary in the case of cengi
ear*, and not in that of appointment by letters patent.
It would be vain to guess the meaning of the legislature in
the framing of the statute, and therefore he did not attempt
to account for the provision. Conceding even that election
end confirmation were mere shadows, he could not bring
himself to believe that the legislature intended the &stoma act
of consecration to be a mere form and shadow, and, if not,
neither could be confrmation. In consecration, it was stated
that no previous form of inquiry had been used. He could
not believe that the legislature ever intended to force the
archbishop to perform the solemn act of consecration in the
face of sufficient and lawful impediments. The statute
provided that, on receipt of letters patent from
the crown, the archbishop should consecrate, iadepen-
dent of any influence from Rome, and the confir-
mation and consecration contemplated by the statute seemed
to be such as had formerly required the sanction of bulls
from Rome. It could not be doubted that the bull would
have directed a judicial act, and therefore he was compelled
to believe either that the legislature intended to carry
on the form and shadow of election, or they meant confirma-
tion to continue a judicial act, es it had been before the pase-
ing of the statute. He could not feel himself justified in
attributing to the legislature the enactment of a mere form
and shadow, and therefore he felt bound to accept the words
of the act according to their usually received and accepted
meaning, when by so doing there was no absurdity involved.
It teemed therefore to him that the archbishop was required
by the 6th sect. of the act, to confirm the election es "of old
times eccasiemed "—that was, in judicial fashion and after
proper inquiry. But the 7th sect., centaining the penalties
of priemunire against the dean and chapter for not
electing within twelve days, and against the archbishop
for not confirming within twenty days, added penal.
ties, to be inflicted upon parties acting under the influence of
orders from Rome. It had been doubted whether these
penalties applied to 'anything except influence from Rome,
and he thought that the words clearly referred to some
extrinsic matters and influences. He had already stated that
in his opinion the archbishop was empowered to act ju-
dicially. The early part of the clause seemed to say that the
penalties would be enforced if he refused to confirm within
20 days, and it had been urged that this precluded judicial
inquiry, which could not be completed within 20 days. He
did not think that the words could bear any such construc-
tion. It was observable that in the sth section. requiring
the king to send his letters patent, there was nothing said
about time. It was aot then said in the anal form " with
ail speed." The 7th section enacted the penalty if the
Archbishop did not confirm within 20 days, but be appre-
hended that this meant, unless lawful impediment emtiN.
All statutes enacting penalties must be so construed.
What would amount to a sufficient impediment
was not then • point necessary for inquiry so
far as regarded the dean and chapter, bat as respected the
archbishop. He conceived that a pending judicial inquiry
would be a sufficient excuse. If he was right in supposing
confirmation to be • judicial act, he conceived that the arch-
bishop would not incur the penalties by delay. It had been
said that such would be a violation of the prerogative of the
crown : he could not see it in that light. The construction
he put on the act was, that it did not derogate from the
prerogative of the crown, but that it did not
extend it. Again, it had been said that ao refusal to con-
firm bad been discovered sine, the pruning of the statute.
That was • circumstance of considerable weight, as, if pro-
ceedings had been brought immediately after the peeing of
the act, we should have had a contemporaneous exposition
of its meaning, possibly to the effect that it was merely •
ministerial act. But the contrary was seen to be the feet,
for elections had taken place in which inquiries had been
held. The opinions of various writers had been rehired
to by counsel. So far as they went, they appeared
to him to afford an inference that the general notion we,
that the archbishop was bound to confirm under the
penalties of prienueure. In Brett it was put, What would
be done if the king appointed an unfit person ? and it wee
answered that he would no doubt consent to appoint another.
If the act of confirmation was merely ministerial, what solemn
mockeries must have been gone through. Any one who read
the proceedings at confirmation as they were set forth in Gib-
son's Codex, could not but see that the statute gave to every step
• judicial appearance and character. It was difficult to con-
ceive that such mockery could have been continued for such
a length of time without any assignable motive. He could
not but think, therefore, that confirmation bad not been
altered in its nature,but that the fact of the powers of inquiry
not being used arose from the necessity not having arisen
Instances, those of Rundell and Clark, had been given
where remonstrance to the crown had been effectual;
but it seemed to him that no proceedings since the peeing
of the statute, showed that the judicial character of con-
firmation was altered. It had been said that confirmation
could not be • judicial act, because in it the archbishop meted
through the viear-general, who bad no PIPISCISOOII mt.
teatime natters. lie did not see that this altered the ease,

because comfinnation was not, primed facie, a
proceeding. It did not, however, seem that the archbishop
was deprived of his power of investigating any chic
which might be made in his Court of Audience.
point was referred to in Oughton's " Prolegomena,'
and: it strengthened his opinion that confirmation was
nut ministerial. Neithercould he doubt that if the archbishop
did act judicially, he would also have power to compel
the attendance of witnesses, as in other courts. He did not
lay any stress on the case of Bishop Montague, but it told
against the supposition that the situation of an opposer was
• mere shadow. In the case of Montague, the citation would
certainly have been omitted, if it was a mere mockery. In
the statute of Henry V., which had been alluded
to, providing for the appointment of bishops by the
archbishop during the papal interregnum, the direc-
tions to the archbishop were quite as precise as in
the statute of Henry VIII., and yet confirmation snes
pointed out and carried on as a judicial act. If it were a
judicial act, the next question was, had the opposes a right
to be heard? Now the statute of Henry VIII. laid down
that all opposers were to be cited, and that the cita-
tion was to be stuck up in the church, and proclaimed
at the time of confirmation. Whether the form of
citation was in use before the time of Henry VIII., he
believed did not distinctly appear; but after the statute it
was proof that confirmation was treated as • judicial act.
It seemed difficult to say that the vicar-general, after such a
citation, would be justified in refusing to hear any persons
who came forward with objections, any more than the Court
of Queen's Bench could have refused the wager be bathe
where it war demanded, before the law was altered.',Theosly
question was ay hetherby law the course which the vicar-genera
had pursued was the proper course. He bad refused to allow
the objectors to appear at all, and he (Mr. Justice Patte-
rson) conceived that the vicar-general had misconstrued the
powers given te him under the statute, in not hearing the
parties who claimed to be heard. These parties appeared,
however, to have been aggrieved, and to be entitled to a
remedy. What was this remedy to be ? Was It to be by
mandamus ? No other remedy had been shown. Even had
the parties been heard, he doubted whether they could have
bed as appeal, but dearly, as they had not been heard, them
was an question of appeal at all. No case distinctly in
paint had been cited on either side. If, indeed, by the
practice of confirmation, independently of the supposed effeet
of the act of Henry VIII., the citation of opposers was
Wifely matter of form, like the challenge of the champion
Si 0014365ti0111, the case might have come within the cased
" Zaparte Smith" (3 Adol. and Ellis) ; but the matter was
ash MP pat by the vicar-general, who proceeded on his con.
deuttion of the statute. He did not think the Church Dis-
dpline Act touched the question. This was not the case of
the prosecution of a bishop elect for alleged offences within
the preceding two year., but simply a claim by certain parties
to be heard as to certain objections they had to the bishop
sleet. His mind had not been made up on this very int-
=subject without maturely weighing all the
tin by which it was surrounded, and more especially
the question as to the power of the court to rant the re-
quired mandamus. His opinion was, .that rat was a case
peedierty fit to be put in such a shape as to enable the un-
successful parties here to obtain a writ of error. He was
quite sensible of the agitation of men's minds on the subject,
and of the inconvenience of keeping the question undecided ;
but still he thought these iaconveniences leas than the ia-
mavenience of not settling the question satisfactorily. He
hod not gone into that part of the allegations whfch die
sired the nature of the objections to the bishop elect, for
he Telerded the miscarriage to be the refusal of the vicar-
reto hear the parties snake their objections, whateve
objections were. The case was wholly independent of
Ike question, who the person was that was bishop elect, or
whet the objections were to hint. It was • rue applicable
I to any bishop elect. Upon the whole, he was of opinion
that the rule for a mandamus ought to be made absolute.
The Lord Chief Justice said he had no doubt that in this
owe the mandamus sought for could not, and ought not, t
awe ; and, even were he at all in doubt on the subject, he
should think it better not to issue the writ than to run the
risk of abridging the clear and established preroga-
tive of the crown in a matter of such vital im.
penance still more to the best interests of the
people then of the Crown itself. He would admit that there
usened • prima facie case of wrong, where, after citation
honed for persons to appear in opposition, and after procla-
mation to the same effect, persons so appearing were pro-
hibited from stating their opposition. The proceedings by '
which opposers were invited to appear, and then had their
mouths stopped at the very outset, and were excluded the
seam clearly reflected no honour on those who first inn-
' Wed the form. It was an absurdity only exceeded by the
theihest proceeding of declaring those very persons con-
namadeas for non-appearance who had actually ap•
, and, claiming to be heard, were not he
hat these things were anomalies there could be no doubt
but they did not constitute a case for setting aside • clear and
established rule, founded on a distinct act of parliament, ant
settled by invariable practice. By whose authority had these
proceedings been sanctioned in the present instance ? In the
place, by that of a prelate entitled to the unbounded
respect and confidence of all men, by that of the venerate
Archbishop of Canterbury—who, in the course of
his long career as metropolitan, must have takes
• leading part in the confirmation of almost all the prelates
in his province, now on the episcopal bench, and who, in
the most trying times, had ever displayed the utmost up-
rightness, prudence, moderation, and circumspect care. The
other party of whom complaint was made, was • perste
whose mind, learning, and judgment were as well esta-
blished as was his high character in all other respects. These
parties, so conversant with the law and custom
in this matter, relied, not upon the abstract
jusdoe or propriety of the particular form, but upon the
ewes terms of an express act of parliament, the 25 of
Eery VIII., esp. 20. The first observation that occurred
to him, in reference to this act was, that no form of confirm-
ation whatever was set forth in it, or in the preceding act on
the same subject, the 23 Henry VIII. ; which latter statute,
after denouncing former exactions of the Pope by means of
delaying the confirmation of bishops named by the King,
enacted that for the future, any person presented to the
court of Rome, aa bishop of any English see,
and whose confirmation by papal bull should be
unduly deferred, should be consecrated by his arch
bishop, and be then and thereafter taken to be, and be,
bishop of the see to which he had been named. In
this statute the word confirmation die not once occur. This
statute was kept alive by the 25 Henry VIII. The statute
was framed in that spirit of jealousy of Rome which was at
that time severing, one by one, all the Lila between this
kingdom and that see, but neither King Henry nor any
other king was likely to leave the means of making bishops
imperfect or uncertain for the time to come. That was one
of the objects of the statute, as put forth by the preamble ;
and it had been asked whether such • king was likely, at
the same time that he deprived the Pope of his veto, to give
it to one of his own subjects ? The only answer which had
been made to this question, he confessed he hat heard with
surprise and regret, bmuse, as he caught it, and he believed he
was correct, it was a severe reflection on that great father
of the English Protestant church, Archbishop Cranmer. He
understood it to have been said that the king knew how ob-
sequious an archbishop he had in Cranmer, who would
readily comply with the king's will. True, he was not a
blameless man; far from it for, shortly before his death, he
betrayed a great want of firmness; but he might be per•
emitted to say, not greater than that exhibited by
the Apostle whom the head of the church selected
from among his brethren, as the rock upon which that
church was to be built; and his death, at least, might
have atoned for this fault, and have saved his memory from
such observations in the presence of so many sons of the
church of England. He must say he did not expect to
hear the name of Creamer introduced for such a per
pose, and he thought it showed great excitement of
mind existing somewhere on the present occasion, who.
they in the clients or in the counsel who made the
remark. He would say that he felt it was doubly the duty of
that court on such a question as this to take care that they
were not led away by such impresaioni,"or yielded too much
to the authority of these ecedenutical powers, which, in his
opinion, it had been the duty of that court, in all
ages, to watch with peculiar jealousy. (Sensation.)
If Henry relied on Cranmer, as upon a mean and servile
churchman, who would truckle to his caprices, he was
wholly mistaken in his man. The archbishop, on more than
one occasion, thoroughly thwarted the monarch on points
which the monarch was especially bent upon carrying. He
;posed him in the matter of Anne Boleyn, and, despite
fbieennzio'sf utmost
osuntfoannigienrnemqanueiefen"2. stir again, mseii inbetkliensmwaetternogt
the Six Articles, both in and out of parliament, opposed the
monarch, though it was perfectly well known that
the latter was determined upon the extirpation of all views
and doctrines contrary to his own by torture and death.
But Creamer was not immortal, and other less tractable
metropolitans might have arisen, e'en supposing his character
had been what it had been represented; and it wee, therefore,
inoonoeivable, by any ingenuity, that Henry would have
snowed any doubt to remain as to the prerogative which he
proposed to establish. The whole argument on the other side
rested on the word confirmation; but this word did not
occur alone in the statute, where it was found in
the words " should confirm the said election, " words
which plainly indicated the duties devolving oa the
metropolitan. When the election was real two *help re-
quired to be certified to the archbishop—first, that tad elec.
bon was duly made, and secondly, the identity of the person
who brought the ceetificate, it being farther desirable, no
doubt, that the archbishop his benediction and gracious
reception of his new colleague, should inspire the people
with confidence and respect for im. But, it was mid he was
to cite all persons to oppose; end it was • question whe-
ther he was bound to open a court of this decep-
tion. Be would uk, could there be an necessity for suck •
MUMS when the person tobe confirmed had already been or-
dained • deacon, en which pennon all people had been called
upon to pronounce whether they respected him of any crime
or offence, when if anything were alleged against
future proceeding:were deferred until inquiry had been made?
The same person most have undergone the same ordeal on
being ordained • priest; and, when bishop elect, he came
with the addial testimony of parties well qualified toile**
of his fitness in all respects; for, since the provision of that I
statute, he brings the recommendation of the crown ; and was
that to pass for nothing ? Why was the archbishop, then,
to *lmmense an inquiry? Why was le to all upon all the
world to come forward and oppose ? If the election were in
the people, he could understand the argument ; but here it
had passed away from the people, and been vested
for ages in the dean and chapter,, on the recom-
mendation of the crown. The limitation- of time im-
posed in the two great processes of election and confirma-
tion—of 12 days in the former came, and 20 in the latter—
strengthened this view of the matter. The election, in feet,
was reduced to • mere form, the appointment being in the
crown; but consecration wore a more solemn aspect. The
bishop was to be " called, tried, and examined;" and the
archbishop, after receiving him at the hands of two bishops,
demanded*. king's mandate for his consecration. Then
the archbishop, att in his chair, was to put certain Heed
viestions, to whichteed showers were to be given. The

36th article ordained especially that the consecration should
be in this form. The consecration, therefore, was
said to be, like the election, very little more than
a formal ceremony. The one was the initiation of
the dean and chapter, and the other the confirmation of the
archbishop ; but both were, in reality, the Ws of the lave-
reign; and that being so, they were now asked to find 1101U0
reason why it should be more than • mere form also. The
answer was, that the word " confirm " had ac, Min legal
sense. The favour of the sovereign was supposed to
have placed the bishop elect In a position analogous
to that of • felon, whose trial the jury were
to decide. He had pleaded not guilty to the charge ;
and all persons were then to be ineited, by public proclama-
tion, " if they knew of any treasons, felonies, or other mis-
demeanors done by the prisoner at the bar, to came
forward and give their evidence." That was the position in
which it was now contended a bishop-elect, whesedoetrines
had been approved of on his ordination to the offices
of deacon and priest, who had been nominated by the crown,
and elected by the dean and chapter, was to be placed by
the favour of his sovereign • and the charge was to be made
blacker, if possible, by the use of a word, to which was
attached the foulest of crimes which had disgraced man-
kind the full and comprehensive word " heresy."
And while upon this topic he felt it necessary to repeat
what had often been stated in former judgments—
that the canon law formed no part of the common law of the
realm unless practice could be shown to the contrary, and then
he was of opinion that the burden of proof on such a point
rested on the parties opposing; but into this he need not go,
for he was convinced that the practice of hearing opposers never
bad existed authoritatively in this country, and for proof of that
I • relied, not upon affidavits, but upon the arguments of the
appellants themselves, for he was satisfied that if even such
a case could have occurred it would not only Dave been
cited in that court, but would have been notorious to all the
world. But there was not a trace of such a case ; all records,
historical and legal, proved a perfect blank with re-
spect to it. It was argued that perhaps such a case never
had occurred because an appeal to that court a ight never
before have been necessary. What ! during all the oenturies
Christianity had existed, had not one person, some of whets*
opinions might have been alleged heretical, been elevated to
the bench of bishops? Had there been none elevated with
" spiritual pride," none with " jealousies," none against
whom some person or another might not have alleged some
sorted "immoralities?" And eves if this were so,were there no
persona during all that period capable of making a false charge
—of drawing • false inference? Where were the sons of
Beiial at that time,—a class that were not extinct in they's
days, and that never failed to be forward in cases in which
they took so much delight ? (Sensation.) But suppose
opposers admitted : let them observe what would happen ?
Coma forth, said the proclamation, and offer your opposition
in the case of this person to be made a bishop. The
answer is, from one, " I knew this man at college, and I
can tell you of some irregularities in his life." Another
would say " This person is justly suspected by one of
having performed service whilst in a state of inebriety."
A third might charge him with "vanity." Another might
throw a slur upon the chastity of his mother, or attack his
own conduct respecting his son. All that the Pharisee blessed
himself at being free from, these people might falsely allege
against the bishop. He might know all the allegations to
be false and infamous; the judge might think the me
misers utterly unworthy of belief: yet the inquiry must
proceed, and • string of calumnies must be heard.
But how much was this case strengthened when the charge
was the unfathomable charge of heresy, supported by ex-
tracts front books difficult to understand, and by reported
conversations, probably imaginary, and, if real, difficult to
be correctly repeated ? Thus the life of a bishop might be
frittered away whilst proceedings were pending against him,
and his see might be left without an occupant, to the detriment
of the church and of the people. The existence of this course
being inferred, the next consideration was what the pro-
ceedings would be. These might be inferred from the
schedule of the court, which was described by Bishop
Gibson, and from which it appeared that in the courts of
confirmation it was absolutely taken (or granted that no
opposers would appear, and that, if they did appear, there
was no provision for what should be done. Now for aught
that they could gather, it would seem that the form
'of appearance was no more than any other part of
the proceedings before the court: a form kept up
from stage, or possibly because certain i•molumenta
attached to every one of the ten stages to be gone through.
There was no evidence that this form had any vitality in any
part of the period during which Christianity had ex-
isted—since the Reformation or even before it. ut even if
it had existed before it, why might they net presume the
ecclesiastical authorities themselves to have the credit of re-
fusing to persist in a power which was most anomalous and
dangerous? He would not go so far as to say that any
attempt to give the form vitality or to carry the law
into effect, must have shown its utter impracticability ;
but he thought such was highly probable. Let him con-
sider, however, what a mighty edifice was sought to be built
up upon it. He was told that the archbishop was a court
but that this court had ever dons what it was now required
to do was never pretended. The right of appointment of •
bishop by the crown, without the interference of the arch-
bishop, had, in fact, never been doubted ; that any opposer
to the confirmation was entitled to appear was never
even surmised. There had been, in fact, only one exception
to the mile of the non-appearance of opposes",
and that exception was in the case of Bishop Montague,
when the vicar-general, Dr. Ryves, refused to hear an op-
poser, guarding himself, however, by stating that he did so
because his opposition was not in writing. Of this Dr. Banes
they knew little, and that little not much to his credit;
but it was very deer that if he did give such a judg-
ment he was wrong, for in the law nothing was
said about the opposition being in writing, and indeed
it might proceed from • party who was not able to
write. If such a proceeding as this were permitted, the op-
poser of the new Bishop of Manchester might appeal to that
court. True, the Bishop of Manchester had been con-
secrated, but even then a plausible ground might be laid for
appeal, for it was open to a doubt at what precise stage •
man became a bishop. In a cue formerly before the court,
the question was, whether a bishop was a bishop after else-
tion or after confirmation, and a very extended argument—
half the length of that they had heard in this cue—wasbuilt
up upon those positions. But even on that occasion
no hint was dropped that opposers might be admitted,
and Justice Whitelock made no reference to any such possi-
bility. A useful pamphlet had been cited in that court,
containing a collection of opinions upon the subject of the
prerogative, in the form of dialogues and statements. It ap-
peared from that pamphlet that both Charles It. and Wil-
liam 111. had made orders relative to the appointment of
bishops; but in neither of those instances was the right of
int,•rlerence with the appointment of the crown in any way
recognised. The case of Bishop Gibson, which had
been before mentioned, was a remarkable one. He was
assailed by one of the most learned judges who ever sat in
that court. Sir Matthew Foster, asone who desired to erect
the church into an imperiunt in imperio. This charge it
was that induced him to write that celebrated treatise which
still remained a perfectstorehouse of ecclesiastical law, but in
no one page of which did he assort the existence of any power
on the part of an archbishop to defeat by such an inquiry
as that before the Court of Confirmation, the right of nom-
tion by the crown. In the case of Bishop 'badly, that
prelate gave his opponents free opportunities of making op-
position to his confirmation, knowing that something was
alleged against him. Archbishop Wake remonstrated with
the sovereign against the promotion of Dr. Samuel Clarke,
and other sovereigns had consulted archbishops before pro-
moting to the office of bishop; but not a word had been uttered
not a tact had been cited to show that any archbishop had
evzr instituted, or could ever institute, any inquiry. Every
one had heard in this case of the celebrated protest ad
by thirteen or fourteen bishops of the church to the prime
minister, against the appointment of this prelate. The argu-
ments they urged were arguments of great weight and power,
but though they warned the minister of "scandal" arising from
the nomination, not once did they allude to rejection of the
prelate on confirmation on the ground of heresy, or any
other ground. One of the objectors said he wished not to be
exposed to the peril of a prientunire, but there was ne as
of any opposition likely to arise at the confirmation
'on the part of those who had procured the condemns-
tion of the bishop-elect by the convocation of his
university. It was said, indeed, that by not allowing the
court to inquire the archbishop would be converted
into a mere "machine." That word " machine," suggested
to him (Lord Denman) the idea that the writ of that court
might possibly be required to be used as a " machine"—•
machine with some sort of galvanic operation to call into mo
mentary existence powers hitherto supposed to be extinct. But
this idea implied that the forms into which vitality was to
be generated, had ever had exiitepce. He did not believe that
ever to have been the cue. The duty of the archbishop in
the matter appeared to him to be clear, and entirely apart from
the functions of a judge. If his inquiries led limn t, the
opinion that the appointment would be injurious, he could
remonstrate. He could advio• tar deo.n ant to issue a
conFi d'ilire. He might ask to be removed from the painful
position of performiag, or ordering to be performed, the duty
of consecration ; or, if he was quite clear that the conga
d'ilire ought to be set aside, he might set as his conscience
doubtless would dictate, and as some of the judges of that
' wart had acted, resign the office which the crown
had given to him. As to the right course to be taken by an
archbishop he had no doubt ; and as to the circumstances
of the present case, if the archbishop felt any doubt, ha
(Lord D.) was perfectly assured, that ere the confirmation, be
had found all his doubts resolved relative to the propriety of
the appointment, which was now the subjectof consideration.
He would ask whether it had been the opinion of any
person, until within the last few weeks, until this unfor-
tunate controversy bad occurred, which had so inflamed the
public mind that the archbishop had a veto on the ap-
pointment o 1 the crown to a vacant bishopric ? And when
hs beard Sir F.l Hely entrent, with so much solemnity of
manner, that they would not expose the archbishop to the
mockery and shadow of so sacred a proceediag in which the
Almighty was invoked in prayer ; when the learned counsel
called upon the court not to pronounce that all this cere-
mony was a mere useless form, be confessed that he har
knew how to meet such an observation.confe
Were the deanadnil
chapter to be treated as nothing ? Did they conduct their
proceedings without prayer and solemn ceremony ? And if
they were required, notwithstanding, to proceed to the elu-
tion, without the power of refusing to elect the nominee of
the crown, why should they be referred *nip to the
confirmation, and not to the election 1 It might be an
ill-considered and an impious act of parliament, and one per-
haps that ought to be repealed, bat why there should be any
objection made to the solemn oerenthey of the confirmation
and the election, which was conducted with equal solemnity,
both of which were in conformity with the act of parliament,
he could not understand. It reminded him of the two
Roman augurs who were said never to meet each other
without laughing ; and it certainly did appear to him that IL
the court yielded to the request of the learned
gentleman on each a ground, the avast* on
both sides 'mid have good cecinas to laugh
at its &wince. Herten stated his rem= for Oa
opiaisesvhido lis ttlilmcatsly, fleshy, awl isoteintinsW
•
is ,
(..........._ A r.• i.i.';, . , ~,
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5,...._t...,),

entertained. that what was contended for in support of the
rale never had been nt any tune the law of England, be
must say that he thought the court was hound to refuse the
writ of mandamus. At the same time he might state,
that he had had the greatest possible hesita-
tion is coming to this conclusion, and the more
especially as he felt that this was • refusal of inquiry,
which in a railway or any other ordinary case, would
at woe bo granted. A writ of error would, however, lie if
they had formed an improper opinion; but hie opinion was
so strong against making such a rule absolute, and so
entirely unchanged by what he had heard th
an toat day,
how the snow the
that he felt the greatest dispositi
h▪
ighest respect to the sentiments ofhe his learned brpossibethren
who differed from him, that could nly
say that this writ ought to go. Be thought, if
it went, it would be good for nothing ; for the return
whieh could be made to it would be • sufficient answer.
But he waslth* bound to consider the consequences which
would &riot+ from the issuing of such a writ—viz , the fright-
ful state of theological animosity which it would create and
perpetuate for a period of, perhaps, two years, and the
yon ti it would stive upon the avoidance of every see, to the
adoption of a similar course, where the archbishop would be
called on to summon all mankind in every case as objectors
to the appointment of the crown, and keep open
a court which, in Let, might never be closed.
It must also bo borne in mind that the court had a discretion
in the issuing of • mandamus, supposing even it thought
that the proceeding complained of was of &judicial character,
sad that the archbishop might be compelled to hear the ob-
jectors; and, in the exercise of this discretion, without
regard to the legal right, he felt bound to refuse the writ.
He must also acknowledge that some deference was due to
the exalted person who was the defendant in this case. as
well 118 to Dr. Hampden hitting, whilst more regard was
be paid to the safety of the church and the peace of the
state, paw
he verily believed would be perilled by the
encouragement of the smallest doubt as to the tru, meaning
and intention of the act of Henry VIII. lie repeate his learned
d that he
bad the greatest respect for the opinions of
brethren. He thought this wee • question which ought to have
been discussed. The balance of convenience certainly
appeared to him to be in favour of discussion ; and be must
say, in reference to his brother Culeridge's admirable argu-
ments, that they only confirmed him in the danger of
gemming the clear construction of acts of parliament to those
who would bring down their forgotten books, arid wipe off
the cobwebs front obsolete diastole lie thought it was
Wiliam ded duty fairly to eneetrae and abide by the act of
t, and he was *adore of opinion that the rule
must be discharged.

---
COMMISSIONS OF LUNACY ON TWO SISx
Yesterday •gonimission de Lunatic° Inquietude, which
had been adjourned from the 21st December last, was con-
cluded at the Roebuck Inn, Turnhamgreen, befnre Mr.
Commiesioner Barlow, respecting the state of mind of Mine
Maria Collings, aged 33, daughter of the late Capt. Collings,
of the lion. East India Company's Flit Regt. of Madras Na-
tive Infantry.
From the statement of the learned counsel, and the medi-
eal and other evidence adduced at the former inquiry, it sp. I
peered that the father of Mile Ceilings had married the
daughter of a Spanish merchant named Assando. The
issue was a sea (since dead) and three daughters, one being
Mrs. Findlater (the petitioner), Maria (the eubjectef the in-
quiry)., and AinelM Maria Hortensia (subject of this meal
commission). In the month of August last Maria sent SONO
very extraordinary letters to Mr. Goodman, clerk to the
Lord Mayor, to Lord John Russell, and Lord Palmerston,
wherein she described herself as the Princess de Bourbon.
lawful descendant ot Charles IV., King if Spain, c
latter
her mother, Euphemiu de Bourbon, alleging that the Willi
won in 1828 le murdered in Guernsey; and that her
uncle, Sir tVilliem Collinge. and other iutluential residents
of Guernsey, were et the bottom of in order 0 get swages-
of her ',rap rty,which stoted exceeded 100.000 f. ; and
lion
that not only had it been used to benefit the island of Guern-
sey. sad enatie them to smuggle mere successfully, but also
by King Louis Pl,ilipp • for the promotion of the Spanish
marriages. She asserted that the deed of Charles IV. would
show all if it could be met with ; it may be shuffled about
from house te house, or it may be found in China, in the
tea trade, not among the genuine, but no doubt mixed up
with the spurious tea, &c. Mica Amelia, who it would
teem was imbued with the tame delusion., had gone to
Guernsey to make inqui-ies relative to her mother and pro-
perty, and was summoned by the Cour Royale, but she
*raped to England, and subsequently was, with her sister,
placed in Mr. Tike's asylum, Manorhouse, Chiswick,
where both still teritained, and laboured under the same
delusions. Mrs. Findlater (the sitter)) and her husbacd,
who had resided it Montpellier, in France, on recently
coming to England, finding the young ladies under
restraint, ir.stitut. d these proceedings. Miss Mario
;mused herself in reading, playing the piano, needlework,
&c.; in fact conversed and acted rationally in all re-
spects except as to the delusions.—At the conclusion
of the evidence the learned commissioner and jury
visited the unforituate lady at Manor home. Her replica
to various questions were evasive, and as to her de-
lusions she retused to explain, telling his honour she must
refer him to the premier, Lord Palmerston, and the Lord
Mayor, into whine heads she said she had placed her affairs.
She complained of the proceedings as hasty, and requested
an adjournment, which was eventually granted.
At the resumption of the inquiry yesterday, Mr. Miller
addressed the court at coasiderable length on behalf of Miss
Maria Collings, contending that there was no proof that she
laboured under delusions, and those which had been so
termed might have had their origin in erroneous informa-
tion, and would not therefore be delusions.
Dr. Winslow stated that be lot visite I Miss Maria Col-
lings on the 28th January. In convetsation she spoke bit-
terly of Mr. and Mrs. Findlater, for having, as she said,
placed her in a lunatic asylum. She said she was under the
protection of the Premier, Lord Palmerston, and the parlia-
ment. She appeared in the same state of mind as when he
saw her previously. She told him to inquire of the premier
about her affairs. She was clearly of unsound mind.
Mr. Bowling, surgeon, stated that at his visit on the 30th
January Miss Collings repeated what she had formerly
stated relative to the Collings's of Guernsey, Louis Philippe,
the Premier, Lord Palmerton, her great wealth, &c. ; he
had seen no reason to alter his former opinion that she was
decidedly of unsound mind.
Some altercation took place between the learned counsel
as to the propriety of examining Mr. Findlater as to whe-
ther he was an lrvingite ; the examination on that point
was in consequence iliac .ntiuueti.•- At the conclusion of the
evidence a deputation of four of the jury waited upon Miss
Maria at the Manor House, that lady having, as before, de-
dined to come to the court. —The learned commissioner then
summed up, and the jury retired to consider their verdict,
and after an absence of nearly two hours. returned a verdict
",That Miss Maria Collings is now of sound miud, and capa-
ble of managing herself and her affairs."
The consoussioe against Miss Amelia, the sister, wet fixed
for hearing on Friday next.

POLICE. —YrATELDAY.
OUILDHALL.—ATTIMPTISU SC ICIDE.—R. Billie was
re-examined, charged with attempting te destroy himself by
leaping off 13Iackfriarsbridge into the river, on Saturday af-
ternom. He was remanded in order that Dr. lli'Murdo
should toe him and report as to the state of his health.—
Ald. Gibbs said that be had received a letter from Dr.
bildurdo, which quite satirfied him that be must have
known he
similarg the law, but believing he would not
make a attempt be should diecharge him.—Mr.
Bertie said he was truly sensible of his fault, and having
thanked the alderman for his kindness retired.
BOW-STREET_POST-OFFICIS ROBBVILT.—T. Fmgk, a
clerk in the inland department of the General Post-office,
was charged with stealing two letters containing money, the
property of the Postmaster General.—The prisoner was ob-
served by one of the rnewengers whilst dividing letters to be
conveyed by the South Western Railway, to conceal a letter
in his pocket-handkerchief, which lay on t e
h tabnformatile, and
another under lame French newspapers, and ion
being given to a president, he was examined, and le
tters found
addressed, " Mrs. Bibee, the Rev. P. Wood, Littleton Rec-
tory, near Chertaey, Surrey," and the other to " Mrs.What-
ley, Tolpunnel, near Milburn, in Dorset," both of which he
admitted having stolen.—Mr. Peacock, for the prosecution,
said he should communicate with the persons to whom the
letters bed been sent; and the_prisoner was remandedh
dis-
.
ATTEMPT TO SHOOT.—S. Walsh, wu charged wit
charging a pistol at Sophia Summers, with intent to murder
her.—The complainant stated that she accompanied the pri-
soner to the Brunswick Hotel, in Bow-street, where they
went to bed. In about an hour and a half she got up, and
the prisoner insisted that she should go to bed again. On
her refusing, be said be would do for her, and going to one
et kW pookoft pea.lueed a pistol, which he presented at
her. She thought he was only joking, and said laughing,
" Oh, you don't mesa that," to which he replied,
" Oh, but
I do, though," and instantly
.discharged the plated at her.
The all pawed through the wainecot ofthe room. She at-
tempted to escape, but he pulled her back, and, she
thought, loaded the pistol again, and was presenting
ft at her, when the porter of the house end other
persons came into the room, alarmed by the report.—
Tha prisoner said the complainant's statement was for the
most part a fabrication. It was true that he showed her the
pistol, but he allowed her to take it out of hiss d,t. whHeen
she discharged it either intentionally or by n
said this was etrident from the direction in which the ball
went—The bell, which was found on the stairs, was pro-
duced by the porter.—Mr. Henry adjourned the case t• give
the prisoner time to obtain legal assistane.—ln the after-
noon, when the • r was again placed at the bar, he was
deeded try a 'titorli elerk.—Mary Anne Sparkman. en
ehasthennaid, proved. that bearing the report of &MAW
she re up stairs, and net the premoutrix rushing out of tie
Ma: poinpt:deSethe trecesr, saying he had shot et
ker. She was sobor,liwt the prisoner looked wild
about shairyea.—J ,78 7 said that he was called in by
the hi whom, and saw , partly dressed, in the
ilmallest husk room, when the adght-porter handed him the
i semed. The primer in a very excited
plets
mr/MiLmil me if est of hie sin&ftaeoe told him he should
Wm Ma es the Mites, sad Ms war the bullet mark in the
viskareing. Os seemiting ilia Ise twand • bullet mould,
mom WY st, with other
cited- He seemed
te Imre beer sad was mach suited prisoner
dallied soh, in his defence, and was fay com-
mitted to Notikt_tnal.
BRITAXPILL
J. and W. Eigwr,
_Where, were aliargod with assaulting
th=ta. W. BMW, essetelits at the lialtsnnia Theism,
Old Town, defamed OW am the prmiews evening his
ellasden wet aroma by a. ditienklia the pit. where he
Went that a lady bad ben rabbet rememilWal with
dm prisoner, J. Ildwt who appear b> in the
few bat ins awned in return with the rot ogroadoot
NA co kit ottiogitol to sown %trona
got la do too. Two mos by
rows from from the primmer W. CI and wheel* was
Arm and for the moment rendered
polotors made a nunblitig 40sari" end Yr.
•••• Hammill
_ . .114 •••••••

11,