The Express.
London, England, 1848-01-15 00:00:00

however would submit that so far from the statute of Henry
VIII. preveuting the court from entertaining any objectiorui
that might be urged, they were bound by the terms of the
'tatter, in connexion with the canon and common law of
England, to hear all objections that might he made. The
proceeding was not a ministerial but a judicial one. The
court was bound to consider the fitness and qualineet ions of
the bishop elect, to hear objections and evidence, nu I to de-
cide. •By the citation of the court they invited epposition,
and they possessed the jurisdiction to hear and den retina
all objections.. If they refused to enter on the inquiry,
and denied opposers the right of oeiag heard, they exceeded
their jurisdiction ; they denied justice, and their proceedings
were altogether null and void in point of law. The learned
gentleman then referred to the last volume of " Burn's
Ecclesiastical Law," page 205, in which, under the statute,
when taken together with the canon law and common law,
the whole form of proceeding which the law required was
very distinctly given. He then proceeded to read at length
from the 14th article, which treats of confirmation, the neces-
sary forms to be adopted, and referred to the maudate or
letters patent from the crown, which was in the following •
terms : After reciting the election of the individual by the
dean and chapter, the certificate of that election, and the ap-
probationof the crown, proceeded asfollowe " We, accepting
of such election, have given our royal assent thereto, and
this we signify by these presents, requiring you to omit=
the said Mectior, and to consecrate the said Dr. Dickson
Rein Hampden, and to do all such other things as be-
long to your pastoral office, aocording to the laws
and statutes of Eneland." The learned gentlemen went on
to &how, from the same authority, what the " other things"
were in the " business"—as it was called—of confirmation ;
and that they ineluded the necessity of citing all opposers to
appear on the day of confirmation, according to the direction
of the ancient canon law—the form of citation being con-
tained in the first volume of " Gibson's Codex ;" that the
proclamation was to be made which explicitly and publicly
called upon all persons to make their objections in due form
of law, " and they should be beard." After the citation
aui proclamation, if no one came to oppose, even then, so
far from it being a command prematurely to proceed to hes
confirmation, and to do an act ministerial without inquiry
and discussion, and not by way of decision and judgment,
the bishop elect had, through his proctor, to present his
petition, in which he had to allege and prone
nine articles, the sixth article beirg that he war
aufficiently qualified by age, knowledge, learning,
order, sobriety, condition, fidelity to the Queen, and
piety. So that proof was required even when there
was no opposition in support of his petition ; and was it now
to be said after • bone fide opposition, upon sufficient
grounds, and in compliance with all the legal forma, that the
opposers must not be permitted to be heard ? If the letters
patent were to be considered as a peremptory command to
do a ministerial act only, why should even the bishop pre-
sent a petition, or observe any other form whatever ? With
the exception of one case, to which he was about to call the
attention of the court, he did not Stud any instance of an ob-
jection having been urged against a bishop nominated by
the crown; and he hoped no such instance would hereafter
occur. When Laud had been removed from the bishopric
of Bali and Wells to that of Chichester, he was succeeded
by Bishop Montague, and a bookseller of the name
of lows objected to his confirmation, charging him with
popery. On that omission the court acknowledged the right
of Jones to be heard in opposition, but the petition was not
formal; it had not been signed by an advocate, nor pre-
sented by a proctor. The subject was subsequently taken up
in the house, and it was acknowledged on all hands that
Jones had a right to be heard if the application had been
formal. It might be said that that was in troublesome
' times, but such was not the fact. It was in 1628, when the
law of England was administered with impartiality, a great
many years before the civil war broke out, and when law
and justice were as well administered in our courts as dur-
ing any period in the early part of that century ; and their
lordships would bear in mind that all which he had quoted
from Burn had been written after the passing of the act of
Lien. VIII., to which he had referred. So far from its
, being supposed that the 25th Hen. VIII., e. 20, had at
al-
tered either the form or effect of any portion of the proceedings
I or the nature of the duty of the court before which the con-
firmation took place, Burn and other subsequent writers
all referred to that statute, and pointed out the forms which
he had detailed as the mode of proceeding invariably adopted
since and under the statute. The act in question bad no re-
lation at all to the form of proceeding. It stated that the
usual forms and ceremonies should be observed in the con-
ermation of a bishop; and without specifying these it enacted
that no bull, command, or interference of the Bishop of
Rome should be permitted in the election or confirmation of
a bishop. It was intended to prevent the transferring from
the crown of this realm to the Pope any ecclesiastical juris-
diction or power in the nomination or appointment of a
bishop, and it was entitled " An act for the nonpayment of
first fruits to the Bishop of Rome." It was partly repealed
by Edward the Sixth, and wholly by Mary; but it was sub-
sequently re-enacted in the reign of Elizabeth ; and it was,
he repeated, laid down by all the text writers that the sta-
tute did not alter or make unnecessary the forms and cere-
monies which must be observed in the confirmation of a
bishop, as pointed out by the canon and common law.
The learned gentleman read extracts from the act in ques-
tion, and contended that it had nothing whateve r to do
with the mode of confirmation, but that it was intended
that it should take place as it had before, according to the
canon and common law. The confirmation was not a simple
act, but it was a judicial trial, in which various parties wens
concerned, and the proceedings were upon pleadings,
articles, and proof, and the court was to proceed also to
judgment and sentence founded upon the articles produced
I being substantiated by proof. He must intreat their lord-
ships to remember the importance of the question now
raised for the first time, hut which must be settled as a
question of such vital importance to the church and the
people of this country. It was on such judicial proceeding
of confirmation alone that any inquiry or examination
could take place under the law as to the tithes+ in
point of piety and doctrine of the individual in ques-
tion to be one of the bishops of the ci urch of
England. If the dean and chapter, the crown, or the
minister of the crown were deceived or ignorant, and one
however unfit, however grievously he might have erred in
point of doctrine—nay, even if he were an infidel, to put an
extreme case, or if he denied the doctrine of the Trinity, and
believed that there were three Goda instead of One,—if such
a person were ignorantly elected by the dean and chapter,
although other, might be aware of hie error and vice, they
would, according to the recent decision, be Beni: d the right
of proving it, and no power could prevent it, no, not even
the clergy of the diocese who were to be placed under his
spiritual, and in some respects temporal, government. He
did not wish to offer an opinion upon the points of doctrine
upon which it was supposed Dr. Hampden was not strictly
orthodox, according to the true and pure doctrine of the
church of England—it was not a point for the consideration
of that court; and it was enough to know that
beneficed clergymen of that church within the dio-
cese of Hereford had come forward and undertaken
to prove that he was not of sound doctrine and teaching,
and was, therefore, not duly qualified to be a bishop of the
church. lie would beg their lordships to regard the situa-
tion in which all persons within the diocese would be placed
if no examination could be had. Under the Church Disci-
' pline Act the moment confirmation finally took place the
bishop became an ecclesiastical judge, and he had sole and
exclusive power in many points of proceeding in governing
under that act. Now he would take the case of a deacon
within the diocese not ordained as a priest—he might know
the erroneous doctrine of the bishop elect, and might be able to
prove it, but if the confirmation took place without such proof
being allowed, he might, by reason of that very error, refuse
to ordain such deacon, holding the true doctrines of the
church, as a priest, and he would be accountable to no higher
tribunal. Other clergymen might be denied advancement in
the church from the same cause. If there wu sal thing
in the proclamation which said that all who hid objections
to urge should be heard, then to be told immediately after
that they could not be heard was making the whole pro-
ceedings worse than a mere useless form, they were a mockery
and a delusion, and that upon the mot solemn and sacred,
and important subjects in which mankind could be engaged.
The learned gentleman then referred to various authorities
in support of his views—amongst others to a case of " Evans
and Astell," in Palmer's reports, 432 ; Sir William Jones,
160 • and the
i following writers on eoclesiesteml
us let book of Lancillotnstitutionis juria C 4101116, 38 ; Fee-
rarins bibliotheca canonic& ; Gibson's Codex • Lyndewode's
Provinciale, 218 ; Ayliffe's Paragon, 21.5 ; the gloss of Juhn
de Atbo, as an appendix to Lyndewode's Provinciale. In
all these *ethers it was distinctly laid down that the
court was bound to hear all objections that might
be legally urged, and it was wore* than useless to
publish the citation if that was not to he the case.
The learned advocate then cited authorities to show that a
writ of mandamus from the Court of Queen's Bench was
the proper remedy under the circumstances; contending
that in point of law the cue stood thus: Here was an in-
ferior court with a case before it which was at this moment

undetermined ; certain parties were before that court, tame
of whom had been heard, whilst others had claimed to he
heard but had been refused. It was therefore not the un-
common case of a court with a cause before it which it re-
fused to hear; and the proper course was to cbtain a man-
damus from the Queen's Bench, as the superior court, com-
manding them to proceed with their cue—to hear it, and
give judgment upon it. If an inferior court proceeded upon
• misconstruction of an act of parliament, although they had
jurisdiction it was unauthorised in point of law; and he was
also instructed to more for • writ of prohibition to restrain
the proceedings.
Lord Denman thought the learned gentleman had better
not mix up that point with the other.
Sir F. Kelly would leave the case in the hands of the court
without further remark. The question involved was
most important one. He was sure the court would de-
cide it without reference to persons, parties, or consequences
and that they would grant a rule to show cause why the
objectors should not be heard.
Lord Denman (after consulting for a few minutes with the
other judges)—Take a rule.

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