The Express.
London, England, 1848-02-01 00:00:00

DR. HAMPDEN'S CASE.

(Continued from oar First Edition.)
Mr. Justice Pension did not propose to enter into • full
examination of the (anon and statute law that had been
cited by counsel during the course of the argument. Those
quotations had established, in the most satisfactory mariner,
the fact, that in all christian countries, and in England also,
previous to the statute 26 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; and moreover it was clear that the act of confirma-
tion was &judicial and not a ministerial proceeding. Coming
after the election of the bishop it could not be raid to be a
part of that proceeding, and moreover it was a most next-
eery act, as corroborating a 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 of a bishop. It was for that reason per.
sons 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 ease. It was sufficient, therefore, for him
to say that before the statute 25th of Henry
VIII. wan pulsed be was of opinion the bishop elect
must be confirmed, either by the Pope or by the spiritual
persons indicated by him for ouch purpose. There were
several instances 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 else-
tions of bishops had, in consequeace 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 eonge &dire.
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 casts which were
preserved in the books, and which had been cited, showed that
during the period to which he referred confirmation was an
essenual towards constituting • bishop, as, without
it, he could not assume his office, for the denial
of that rite had constituted a reason for cancel-
ling the election. Taking it therefore to be esta-
blished by the authorities cited that, prior to the statute
25 Henry VIII., the rtie of confirmation was eseential, he
now would proceed to look at that act with a 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 ne doubt but that it was intended the
election should be free, and the consecration as of old times
accustomed, and consequently a judicial act. 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 else no
mention whatever was made of confirmation. The legisla-
ture seemed to consider confirmation unnecessarywhen
there had been no election. In the Irish act abolishing
elections, even the form, 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
preserved, so had that of confirmation, but that neither was
intended to he more than a shadow. It was difficult to say
why confirmation should be necessary in the caw of eenge
et flirt 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
and confirmation were mere shadows, he could not bring
himself to believe that the legislature intended the solemn act
of consecration to be a mere form and shadow, and, if not,
neither could be confirmation. 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, indepen-
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, as it had been before the pass-
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 seemed therefore to him that the archbishop was required
by the 6th sect. of the act, to confirm the election as " of old
times accustomed," that was in judicial fashion and after
proper inquiry. But the 7th sect., containing the penalties
of priemunire against the dean and chapter fur not electing
within 20 days, and against the archbishop for not confirming
within the same lime,tdded penalties, as under the influence of
orders front 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. lie bad already stated that
in his opinion the archbishop was empowered to act ju-
dicially. Tbs. 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 net then said in the usual form " with
all speed." The 7th section enacted the penalty if the
Archbishop did not confirm within 20 days, but he appre-
hended that this meant, unless lawful impediment existed.
All statutes ens/sting penalties must be so construed.
What would amount to a sufficient impediment
was not then a point necessaiy for inquiry so
far as regarded the dean and chapter, but 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 a judicial act, he conceived that the arch-
bishop w iuld not incur the penalties by delay. It had been
said that such would be a e.olation 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 bad been said that no refusal to con-
firm bad been discovered since the passing of the statute.
That was a circumstance of considerable weight, as, if pro-
ceedings bad been brought immediately after the prising ot
the act, we should have hail a contemporaneous expomtion
et its meaning, possibly is the effect that it was merely a
ministerial act. But the contrary was Mil to be the tact,
for elections had taken place in which inquiries had been
held. The opinions of various writers had been referred
to by counsel. So far as they went, they appeared
to him to afford an inference that the general notice was
that the archbishop was bound to confirm under the
penalties of prmmunire. In Brett it was put, What would
be done if the king appointed an unfit person ? and it was
answered that he would no doubt consent to appoint another.
Ifthe act of confirmation was merely ministerial, what solemn
mockeries must have been gone through. Any one wits read
the proceedings at coafirmation as they were ant forth in
son's Codex, could not but see that the statute gave to every step
a 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 had not been
altered in its nature,but that the fact of the powers of inquiry
not being used aroso from the necessity not having arisen.
Instances, those of Rundell and Clark, hadbeen given where-
, in another course had been adopt. 01, but it seemed to him
that no light was thrown by any proceedings since the passing
1 of the statute, to show whether the judicial character of con-
firmation was altered. It had been said that confirmation
could not be a judicial act, because in it the archbishop acted
through the vicar-general, who had no jurisdiction in con-
tentious matters. He did not see that this altered the case,
because confirmation was not a contentious proceeding. It '
did not seem that thereby the archoishop was deprived of
his power. The point was referred to in Oughton s " Pro-
legomena," and confirmed in his opinion that cunt; rme t ion a as
nut ministerial. Neither could he doubt that if the archbishop
did act judicially, he would also have power to compel
the attendance of witnesses, as in other courts. Ile did not
lay any stress on the case of Bishop Montague, but it told
against the supposition that the situation of an opposer was
a 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 inteiregnum, the direc-
tions to the archhishrip were quite as precise as in
' the statute of Henry VIII., and yet confirmation was
Fluted out and carried on as a judicial act. if it were a
judicial set, the next question was, had the opposer a right
to be heard? Now the statute of Henry 25 laid down
' that all opposers were to be cited, and that the cies-
, don was to be stuck up in the church, anti proclaimed
at the time of consecration. 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 confirmatiou was treated as a judicial act.
He conceived that the vicar-general had misconstrued the
powers given to 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 ? Wan it lobe by
mandamus ? No other remedy had been shown. Even had
the parties been heard, he doubted whether they could have
had an appeal, but clearly, as they had not been heard, there
was no question of appeal at all. No case distinctly in
point had been cited on either side. If, indeed, by the
practice of confirmation, independently of the supposed effect
of the act of Henry VIII., the citation of opposers was