The Express.
London, England, 1848-01-27 00:00:00

meat. It was urged that this wed bad not the authority to
interefere, inasmuch as the emit eiffio archbishop had no
juriediction to esamisse mitoses', ana because the bishop elect
was not a petty. Could it be contended that that court could
met site and examine witnesses tamed, g so. the bishop elect
adight be cited es • party to the articles exhibited, as to his
illness for the office to which he had been nominated. In
Archbishop Parker's case this had been done • witnesses
hod been examined on oath, and he could not doubt that the
IMO might have been done in the ease now under considera-
tion. If there were any doubts on the subject of the autho-
rity of the archbishop, it was most essential that they should
be settled. It appeared to him, however, that there were no
doubts on the subject. As to the mode in which the arch.
bishop was to proceed in the ease of a bishop elect charged
with offence, this, he apprehended, was for the archbishop
to determine, acting, of course, according to established prin.
alpha. In the case of an attorney, whom it was moved to
eisike off the roll', the court decided, according to its own
rules and principles, whether or no the name should be so
expunged, and his without any reference to the
question whether or no the offence charged was
amenable to the common law. He apprehended
that this principle applied to the ease of an arch,
bishop celled upon to decide as to the conduct and eba.
natter of a spiritual dignitary. As to the objections which
had been made to the application forma ndjmus, he UM-
embroil they were unsupported by argument. The mandamus
taught was no interference with the justice or with the prac-
tice of the spiritual court, but simply the recognised exercise
of the prerogative inherent in the superior court ofeorapelling
the inferior court to administer justice when it refused to do
as. In the case of the " King v. The Justices of Kent"
(a similar case in point of general principle, where the jus-
tices had refuted to proceed in a matter, and a mandamus
was applied for to compel them to proceed), Lord
1111enhorough said : "If the justices had rejected the
application made to them in the exercise of the
discretion vested in them by the legislature, this court would
not interfere ; but if they rejected it on the ground that they
had no power to grant it, the court would interfere so far u
to set the real power of the magistrates in motion. If the
magistrates had heard the parties, and bad determined that by
the law and usage of their court those parties could not be
he..rd, I have doubts whether this court could hare issued a
mandamus." The learned counsel then dwelt upon
the essential necessity of the head of the church
in every district being of unimpeachable orthodoxy.
He concluded with an earnest appeal to their lordships ma-
turely to weigh the high, the unspeakable, importance of the
question now submitted to them. It had been complained
by the solicitor-general that those who instituted these pro-
ceedings tended—he did not say sought—to disturb the
peace of the church. Let it be borne in mind that the peace
of the church might be more disturbed by the appoint-
ment to its higher dignities of one who laboured under a
deep and wide-spread suspicion of orthodoxy, than by an
honest and decorous opposition to such appointment. Jus-
tice, the people, and ufts r times would decide, rather than
their lordships, which of the now contending parties—if they
could he called contending—were most obnoniats to tne
imputation of disturbing the peace of the church. He would
now sit down, concluded the learn, d gentleman, satisfies'
that their lordships would deal with this great and solemn
question upon those high principles which had ever actuated
themselves and their predecessors, and which the people of
this country looked for, in the decision of a question involv-
ing all that was dear and sacred to them.
The Attorney-General said, lie now rose to exercise his
prerogative of reply.
Lord Denman said, he did not call to mind any precedent
for such a course as a matter of right.
The Attorney General said, neither did ho rem, mber any
precedent; but too abaiinco of a precedent or we from the
absence of any case in which, as here, the voice of the crown
w .s made use of with the view of smelting the prerogative of
the crown. There was a case, indeed, reported by Manning
and Ryland, " Roe o. Brenton," vile re in a matter relating to
the Dutchy mines in Cornwall, Sir Charles Wetherell's claim
to be heard in reply, as Attorney-General, was-refused by
the court, but this was because it slid not appear that the crow n
was directly interested, the Attorney-General not having, as
he (Sir John Jervis), had here done, certified that the crown
was so interested.
Lord Denman said, his impression was, that in the ease re-
ferred to, Sir Charles Wetherell hod certified to that eff,ct,
which was the ground on which he removed the case from
trial at nisi prius.
The Atterney-General admitted that, on ',collection, Sir
Charles Wetherell had certified in the case, but, admitting
this, the refusal there operated as no precedent here, the
whole character of the cases being entirely distinct.
Lord Denman mid he had some considerable doubt as to
the Attorney-G. ner-il's right to a reply. Reconsidered that
in all there Cable it was entirely within the dimes lion of the
eiurt to say whether or no a reply should be allowed, that
decision turning upon the course which the arguments bad
so far taken.
Sir Fitzroy Kelly opposed the claim of the Attorney-
General to a reply, on the ground that the court ought
not to increase or extend the prerogative of the crown,
which would be the effect of giving admission to the claim,
in the absence of any stated precedent. If a precedeatcould
be alleged, the court, of course, would attend to it. In the
very case of " Roe v. Brenton," just cited, Lord Tenterdea
had distinctly declared that, there being no precedent for the
Attorney-General's right of reply, the court could not
admit the claim as a nght, but would let the case take its
ordinary course. The learned counsel proceeded to contend
that, even were an absolute mandamus granted in this case, it
would not affect the prerogative of the cr .wn ; it was
simply a mandamus requiring an inferior court to hear
certain parties whom it hail unjustly refused to hear. He
further referred (Clarke and Finnelly, 1, p. 200) to a ram be-
fore the House of Lords, where their lordships had also-
ultely rejected the claim of the Attorney-General to be
heard, even in general reply. In the O'Connell case he had
resisted a similar claim on the part of the Attorney-General,
but no decision was come to, Sir Wm. Follett waiving his
claim.
Lord Denman was very jealous of the idea of any vested
right in counsel to a reply in these cases. He would repeat,
that he conceived it to be altogether a matter of discretion
with the court to say whether a reply should be allowed ;
that the court had the clear right to prescribe the course
which it deemed most convenient on the particular occasion.
On the present °cession, it was the opinion of the court that
it would be more convenient to hear the Attorney-General in
rel.K.e Attorney-General, while respectfully asserting what
he considered to he a right of the counsel, holding the office
which he had the honour unworthily to fill, thanked the
court for the indulgence accorded. He then proceeded
to contend that the arguments adduced to show
that the rule moved for involved no infringement
upon the prerogative of the crown, entirely failed in
their object, and that the authority of the statute
on which he and his learned friends relied had been fully
vindicated by the speeches and citations of the counsel on
the other side themselves. He next adverted to the mit-
thievous discrepancies which might be established within
the bosom of the church,—of the consequences of granting
this mandamus, and of thus making an opening for the
introduction of three separate tests of orthodoxy in the three
ecclesiastical jurisdictions of Canterbury. of York, and of Ire-
land. How was the difficulty to be got rid of ? In the plainest
and most conclusive way, and pointed out by the statute—by
the temporal head of the church the party to appoint,
and leaving the matter to be dealt with by the prerogative,
and the ministers of the crown responsible for its exec
eine. He could conceive no means more effectual
for overcoming the difficulties than that pointed out
by the statute in question. Ile admitted that, under the
old canon law, the parties confirming might exercise a power
of inquiry as to the fitness of the party elected as their was no
other means of inquiry pointed nut by the law. This being
the canonical mode of confirming, it appeared that contests
with the Pope on the subject were in consequence of the
exactions made by the Pope from bishops tor confirming
them. The 23rd of Henry VIII. made certain
arrangements as to those payment* ; it did not abolish
theright of the Pope to confirm ; but the Pope still continuing
his exactions, the 25th of Henry VIII. was passed, which,
af•er reciting the previous statute, made provision for con-
firming in this country by the archhithop or bishops, without
the aid of the Pope ; and the bishops were to he nominated
to their sees as of old, before the encroachments ot the Pope
by the King's nomination. How was that done ? By the
delivery of the ring and star when there was no confirmation.
There was no ground whatever for the fanciful distinction
drawn by his learned friend, Mr. Bsddeley, as to the penal.
ties of prtemunire lying as against the dean and chapter for
refusing to elect, while it would not do so as against the
archbishop fur refusing to confirm. His learned friend had
said, would it be pruper to c -nfirm • heretic or lunatic? He
would ask, would it be proper to elect such a person if named
in the letters missive. He would admit the case, that the
party elected had been guilty of a hrinonsoffence—what was
the archbishop to do 1 He must obey the act of parliament.
If the party elected answered satisfactorily the questions put
to him at the cotimiemtion, and which the statute had pro.
vided for 'lndic inn against the admission of improper per-
sons, the archhishoo must confirm. This very point
had been considered a pamphlet from which he
quoted stated in reference to the cam of an improper person
ing moiled by the king, the course was for the electors,
before the election, humbly to represent the matter to the
King. To say that the archbishop was to inquire and decide
whether the party nominated should be confirmed
or not, was to give him a veto on the Kiog's pre-
rogative; and unil,r the Roinish church, as it for-
merly existed here, or rifice the reformation, had
it in point of fact been otherwise. The archbishop, the
clergy, or the electors might petition the crown to nominate
another person, and it was always held, that in all cases that
would be sufficient. With regard so the authority of the
canoeists he submitted that it could only have weight where
it could he shown that the canon law was incorporated with
the law of the statute. No reliance then was to he placed
on the constitution of Othobon or of Peckham.
In the case of Archbishop Parker, the circum-
stance' were different from the present; therefore,
the precedent was inapplicable. There was only
one other point to which he would refer. The same ques-
tion now under consideration was incidentally raised in the
AuchteParder care, in respect to which, a high authority,
Lord Brougham—
Lord Denman here made a gesture of dissent,
The Attorney-General : If his lordship thought he ought
not to refer to that case, he would not do so. Perhaps he
ought not. lie would only therefore further trespass on
the indulgence of the court to implore their lordships to de-
cide the case at ea early a period as posetble, and to esprees
a hope that they would not disturb the minds of the clergy
by doubt, which would be occasioned by referring it to •
place where there was a possibility, but not a probability,
of inquiry.
The Court then rom.
CREDIT AT ORFORD.—Nothing eau more stric

ingly prove the scandalous readineei with which credit
is given at Oxford, than the fact that the Bishop et Oxford
=ta:radii there for strsightfonrudases and dacerity.