The Express.
London, England, 1848-01-24 00:00:00

COURT OF QUEEN'S BENCH.

REOINA O. AW:1111181101` OF CANTERHUIttr.—CASE OF
Dlt. HAMPUEN.—This being the day appointed for hearing
the Attorney. General's argument against the rule nisi for a
mandamus which had been obtained on the application of
Sir F. Kelly, on Friday, the 14th inst. , the passages leading
to the court were thronged, as early d s nine o'clock, by par-
ties anxious to be present at the hearing of this important
case. The barristers' seats were densely crowded. With the
Attorney-General, as counsel for the crown, were the Soli-
citor-General, Dr. Bayford, Dr. Twins, Mr. M. D. Hill,
and Mr. Waddington. In support of the rule were, with Sir
F. Kelly, Dr. Addams, Mr. A J. Stephens, Mr. Badely,
, and Mr. Peacock.
. . .

WTheir
lordships entered the court at ten minutes past ten
o'clock, when the Attorney-General immediately proceeded
with his argument. He stated that he appeared to show cause
against the rule which had been obtained on the 14th inst., re-
respecting the late el, ction to the see of Hereford. He enter-
tained so many objections to the arguments which had been
urged by his learned friend in support of that rule, that he
thought the best way would be t o take them in the order adopted
by his learned friend, and, having disposed of his arguments,
to proceed with each other objections as he (the Attorney-
General) entertained against the rule itself. Having recapi.
whited the steps previously taken, and called attention par-
ticularly ti the affidavit, which stated no objection rid
personam to Dr. Hampden, but merely urged certain points
of doctrine against him, the learned counsel proceeded to
say that against this application he:entertained four princi-
pal objections. First, that the points urged by Sir Fit,roy
Kelly were mere matters of form, and that the office of the
Archbishop of Canterbury was merely ministerial. Secondly,
assuming that the archbishop's office was not so, but judicial,
that the remedy did not lie it. 4 mandamus, but in an appeal.
Thirdly, he contended that, if the investigation were pers.sted
in, it should be proceeded with under the Church Discipline
Act, and that the court of the Archbishop of Canterbury
could not entertain the matter any more than if it were a
merely temporal offence. Fourthly, and this objection would
resolve itself into many branches, he contended that this war
not a case in which, under any circumstances, a man-
damus would lie. In arguing his objections it would be
be proper to refer to what bad been the state of the law pre-
vious to the statute of Henry VIII., that being the statute
on which the application was founded. The learned gentle-
man proceeded to quote at length from Ayliffe, Paragon,
Lancellottus, and other jurists, persona all tending to show
that first the election of bishops was carried on per rum et
populum, but that, disorder,' having arisen—one in particular,
in which 300 people were killed—the emperors had gradually
taker. the erections auto their own hands. Under the canon
law th.. objections allowed against the election of a bishop
were mainly of a moral and personal nature. This was the
law es laid down by Lancellottua, which author he took as
having been quoted by his learned friend, although he
impugned his authority. Bu•, even in the face of these
objections, a bishop might still be elected, awl that was done
by means of a postnlatu• to the Pope. Uprie rho the Pape
issued his bull, and the elev.ion proceeded in the face of
every objection. He gathered from this hook, therefore,
in treating of canonical elections under the Romish law.
that, after election and confirmation, no objection could be
allowed. Ferraris said that. without citation, confirmation
could have no effect; but that was the doctrine laid down at
the Council of Lateran, the authatits of which had never
been atknowledittd in this c. n• try. The passage to which
his friend referred in Aylitfe, page 245, referred not to the
election of bishops, but to that of dean and chapter; and,
moreover, in the same book there was a whole chapter refer-
ring expressly to the election of bishops. These were the
whole of the authorities previous to the statute of Henry.
The only facts of similar date bearing on the case
was the election of Cramer, immediately previous
to the statute. It would be found at length in
Burnet's " History of the Reformation," page 259.
The rescued counsel quoted the passage at length.
Respecting this election, there were eleven bulls in all, and
it appeared that the whole election was carried on under the
immeelate authority of the Pope, and the Pope, being infal-
lible, was not likely to allow any one to interfere. Te
this day the appointment,' of bishops were donative. There
was a cite in Crookjamea, quoted also in Palmer, '• O'Brien
r. In this case, which was one of disputed title to
a bishopric, it was decided that the election was 'bat a form
and ceremony which the king had decided on observing, and
that the creation was perfect under the conye. lire. He
came now to consider the statute of Henry VIII., which.
in hi. opi,:on, disposed of the whole matter, The 25th of
Henry VIII., abolishing the statute of sancta, provides
that no person should be nominated to the bishopric of
Rome. The statute, then, points out the mode of election,
The dean and chapter, leaving out the abbot and priors,
were to inform the crown when a vacancy occurred. The
crown sent down its torsi d',lrre, and the dean and chsprir

could only nominate the paean named in that document.
If they did not do se within twelve days the crown pro-
ceeded to appoint by letters patent, the archbishop
to ordain and enumerate. If the chapter should have
elected, the archbishop proceeds to confirm, but, under any
eiratmetruseas, ordains and maseastes, and this under cer-
tete penaltiat The asehbahop was obliged to proceed to the
investiture and consecration 'with all speed and celerity,
and the crown alone had the power of judging of the fitness
of the person. The elution therefore wee a mere form, or,
as Gibson grid, it was "seemingly" an election under the
magi since the; crown, by its prerogative as head
of the church, had the power of judging of the fitness of the
person to be elected. By the 7th clause of the statute the
dean and chapter were subjected to the penalties of •
prsemunire ; but his learned friend contended that if the
dean and chapter elected somebody else than the person
nominated by the crown, they would not incur the penalziee
of a prices uaire ; and that it was only in case they did not
proceed to the election at all, that they would be liable to it.
Now they were to elect, within twenty days, the persons
named in the letters missive, and at the beet, as this must be
supposed to be done in *judicial form, it mlgheso happen
that it would occupy more than twenty days, and
it would be absurd to suppose that the legislature would
inflict the terrible punishment of a priernunire for what
might take up more than twenty days, if the elective was
not considered to be a mere form. It was evidently intended
to be a mere form, subject to no dispute or discussion. But
there were legislative enact:manta allowing that it was more
a mere form and shadow. The let of Edwaud VI., chap. 2,
declared that the firm was • mere shadow. But
it was contended that the word " election " was used.
But the canon law treated election area confirmation
as one thing. The statute of Henry was revived
by the 4th of Elisabeth ; glad this statute showed
that it wee revived figir the porWe ihr whialt it was origin-
ally passed—newel !' the maintenance of the prerogative of
the crown. In Ayliffe, page 127, the forms to be used were
given, and he treated them as mere forms. Gibson, too, in
his learned work, "The Codex," said they had only one
choice—and the word choice was marked in italics—that
wee, whether they would obey or incur the penalties of. a
prtemuaire. He said that the election, from beginning to
end, proceeded " seemingly" on the conga d'elire, without
any appearance of restraint from the letters missive, and in
the same manner as if there was no such restraint, but it wee
made matter of such positive demand, that if they did not
obey the king they were to have • prtemunire. He would
now proceed to the anhorities quoted on the other side. Hie
leanuei hums mentioned the cue of Parker, as given in his
biography by Styrpe, and in the the third volume of Burnet,
page 805. The learned gentleman, after stating the parti-
c- ufars of this case said that little weight could be attached
to it, being reported: in a biography by persons who were not
acquainted with nice distinctions of law. If precedent was
was to avail, this case was of no authority ; because, if the
statute of Henry the Eighth was to have force, they could
not examine into the process of election, whereas it ap-
peared that the parties there did partly enter into
the proem of election. Another case cited was
one mentioned in " Burn's Ecclesiastical Law," and
cited in " Collyer's Ecclesiastical History," page 207.
That was the cause of the appointment of Montague to the
see of Chichester. Intimation being given to any persons
who had objections to make, one Jones, a bookseller,
attended, and excepted against Montague u • person unqua-
lified for the episcopal office. Dr. Rives, who officiated on
the occasion for the Vicar-General, disappointed the chal-
lenge, for Jones had made some material omission in the
manner, and not offered his objections in form of law. Par-
ticularly, the exceptions were neither given in writing, nor
signed by an advocate, nor presented by any proctor of the
court, and upon the failure of which circumstances the con-
firmation went on." There Collyer stopped, but Dr. Burn
went on to say, " The parliament, not at first apprised in
point of form, were disastisfied with the conduct of the
Vicar-General, and inquired into the conduct of Dr. Rives
on that occasion. Upon which it bath been observed that
Dr. Rives, a most eminent civilian and sanonist, admitted
that the opposition was good and valid had it been
legally offered ; and that the parliament at that
time proceeded upon the same opinion." Now there
was no authority for that statement of Dr. Burn. There
was no authority for it in parliamentary history, and he did
not think the court would give it any weight. He held in
his hand a mau-work of Sir J. Marriott, who was king's
advocate in 1764, and afterwards judge of the admiralty
court. He collected a great number of precedents from
books now not found. He found the following words in his
book, under the title " Confirmation :" "Confirmation
must be despatched within twenty days, otherwise there is
a priemunire incurred. Therefore there needs no citation
of opposers; nor are they to be heard if they offer."
The only other case cited on the other side was thatl of
" Evans and Kiffin e. Ascuith," in Palmer's Reports. The
case was also reported by Sir W. Jones and others. The
learned gentleman having quoted the language used by Mr.
Justice Whitelocke, in reference to this case, said, that the
words used by him were only historical, and in illustration
of his argument, and were therefore no authority. The
passage was an obliter dictum, because the question
was never raised, what was legal confirmation ? It
was not assented to by the other judges, and it was
not found in the authorised reports. Neither was this case,
therefore, of any authority. He had endeavoured to point
out the ancient forms of canonical electicn and confiner"-
rims ; he had endeavoured to show the various things that
were necessary in that election ; he had endeavoured to prove
that the act of Henry VIII. deprived parties from the
power of inquiring into most of these forms. But it was still
said, if the form be not necessary, if it be not an
essential part of the proceeding, why is it retained ?
It was used in that day, as in this, to perpetuate that reve-
verence for the establishment to which the apostolic heads of
the church were traced. Yielding to scruples of conscience
we had preserved it as a proof of apostolic succession ; and
the bishop, when commanded to affirm under a penalty had
no right to enter, and could not enter, into an inquiry ope-
rating upon an election which was already good to all in-
tents and purposes.:lie would now proceed to another objec-
tion. He took it to be no rule that if the court of the arch-
bishop be a court of competent jurisdiction, and exceeded
that jurisdiction, the right to grant a mandamus would lie.
If the question involved a temporal right as well as ecclesi•
aatical, he admitted that a mandamus might be granted.
But where the matter in , dispute was purely ecclesiastical,
the Court of Queen's Bench had no more the power to grant
a mandamus to the court of the archbishop, whose authority
was co-ordinate with it, than it had to grant a mandamus to
the court of the Vice-Chancellor,

Lord Denman said that the ground en which a mandamus
was demanded was the supposition that the confirmation
was altogether void. On that subject it was 'fair for him to
ask whether, if the archbishop refused to proceed to the con-
firmation, counsel would say, on the part of the crown, that
a mandamus would lie ?.

- .
The Attorney-General said he was not present to argue
that question, although he did not hesitate to say that a
mandamus would. not lie in that case ; because, the Queen's
Bench, which was a court of common law, had no jurisdic-
tion over the court of the archbishop in matters purely spi-
ritual or ecclesiastical. The learned counsel referred to the
3rd and 4th Victoria, chap. 86, sections 11 and 23, to show
that, even in criminal matter., the Queen's Bench could not
interfere, unless they involved as well some temporal
inquirv.l In the first place, the bishop would not be
present; it was the proctor of the dean and chapter
who would appear, and, assuming the offence to be of the
moat heinous character, there would be ne power to summon
witnesses. He apprehended that the parties here were pro-
ceeding in a criminal form, and if so, that alone was sufficient
ground for resisting the application. But, supposing he was
wrong in that respect, the bishop had been confirmed, accord-
ing to the affidavits before the court. What then was to be
done ? He was now by law the Bishop of Hereford as much
as if he had been officiating in the see for years. There was
no power to quash the proceedings, and he must be bishop
still. The canon law dad not allow of any investigation be-
tween the confirmation and the consecration. The confir-
mation rendered the election perfect and binding, the conse-
cration being oily ministerial. But, independent of all this,
there was a technical objection to the maintenance of a =an-
damn., which he was sure the court would have already re.
marked upon, but for the solemnity and interest of the case ;
and that objection was the total absence of any precedent.
His learned friend (Sir F. Kelly) had quoted none; and he
and his harmed colleague had searched for one in vain.
Counsel proceeded to argue that the general rule was, that
a mandamus could not lie in any case not involving tem-
perel injury; end, in support of this view, quoted the King e.
St. Peter's, Thetford, sth vol. of Term Reports, in which
the court said, "This is matter for ecclesiastical cognizance,
and we will not int, rfere ;" "The Queen r. Kesterven "
(3rd Queen's Bench Reports, 8 and 10), and a case from the
Bth vol. of Adolphus and Ellis, where the court granted a
mandamus, hut upon the express ground that the local act
regulating the parish required that a church-rate should be
made—a purpose ecclesiastical no doubt, but also temporal
in its nature, the question depended entirely upon the
statutes of, canon law ; and, if that court were to interfere, it
should examine Dr. Addams and others to as ertain on
their oath what that canon law was. Then, supposing the I
ease not to be over for twenty days, it would be
his duty as Attorney-General to inform the archbishop that
he was within the dangers of priemunire. There was no es-
caping from those penalties. The of now sought was to
obtain a writ of the law to interfere with the prerogative of
the Queen by commanding the archbishop, in defiance of the
Queen's command, to do that which the law did not authorise,
and the doing of which subjected him to the penalties of
pro nunire. The learned counsel, having referred to the ease
of " Smith ex-parte Smythe," showing that temporal
courts could not take cognisance of proceedings
in ecclesiastical courts, or entertain questions purely eccle-
siastical, concluded by submitting that, although he had not
exhausted the objections, he had urged sufficient to prove to
the court that the rule ought not to be made absolute.

To be continued la a farther edition.]

NOVEL IMPORTATIONB.—A vessel. just arrived
from the Russian part of Cronstadt, has brought two eases
cmtaining two sledses, with the harness and shafts apper-
taining to the vehicles. The nail ship Hibernia, recently
arrived at Liverpool from New York and Halifax, has
brought, among other articles of merchandise, two barrels of
oysters ; she also brought three boxes of an article called
" congress water." What this water, honoured with such •
parliamentary signification, is composed of we must confess to
• complete inability to enlighten the public

MADRID, JAR. 16.
In propoaing. to make a eabioet qoebtion of the
motion for authorising the goveroment to go cn collecting
the taus till the end of June, Nervaez does not stvin to
have been happy. The ground chosen to try the strength of
the ministry was illuzory. The ultras protest against the
coaserion of a vote of confidence with a vote of supplies.
The debate which took place in congress yesterday was
lees remarkable for the economical lights of Sanchez de
Silva and the reply of Beltran do Lis, than for the
few Words let drop by Bermudez de Cute, a thorough-
going Mon and Poial man, and who may be considered
as speaking the sentiments of the ultra party. lie pro.
tested strongly against confounding a vote of supplies
with a vote of confidence, and added, that this question was
one upon which, if Senor Olosaga were prime minister, the
Duke of Velum*, in opposition, could hardly refuse to vote
for him. Let the government, he said, choose a freer and
lase embarrassed ground, and then it would know whether
it had • majority or not in the house. This language is
highly significant. There can hardly remain a doubt but
that the attitude of the nitres, since the success of the Sala-
manquista, has been one of umbrage, not unmeneging to-
wards the government. The government, evidently pre-
paring itself against the eventuality of open opposition from
the ultras, crows, through the lienado, over its success in
the elections of Albacete and Alicant, which have returned
ministerial men.

The Minister of War declared yesterday, that be would
cot he a party to reducing the army—a declaration deplored
by Sanchez bins.
Yesterday, Names, Figuerm, Cordova, and Isturitz
called upon &Tarter°. During the eight minutes (tor they
were carefully counted) that Espartero convened with Nat.
vaez on the floor of the senate these old enemies held each
other's hand all the time.

The progresistas hare appointed three of their body to
watcb the proceedings of the committee on the accusation
against Salamanca.