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

PROCEEDINGS THIS DAY.

The great length to which the arguments it; this case have
extended appears to hays had the effect of dispelling, in a
great degree, the interest which it had excited—at leaat if
any opinion may be formed by the attendance of the mem-
bers of the bar not engaged in the cause, and the public. On
each of the preceding days the court, immediately on its
opening, became so crowded that it was d fficult for those
who had busint as there to force their way in. To-day, however,
many of the seats appropriated to the accommodation of the
bar were unoccupied, and in the body of the court the
attendance of strangers was not greater than upon any or-
dinary occasion. Dr. Merreweather, the Dean of Here-
ford, is still constant in his attendance. On the entrance of
the judges,
Mr. Baddely resumed his argument in support of the
rule, and having shortly recapitulated the points he had ad-
vanced on the preceding day, and the position he had
advanced that the intention of the act of Henry VIII. was
to have the right of episcopal confirmation unaltered, except
in so far as the see of Rome was concerned, and that the
principle of construction, for which he so contended, was
fully applicable to the present case, observed that there was
another point he would submit—one which was borne out by
the whole history and scope of the constitution—viz., that
any ancient popular right was not to be interfered with
by any new statute, if such statute was capable of being
so construed se to leave the popular right uninjured.
There were various authorities proving that confirmation
we a popular right. Bishops were in the earlier ages elected
by the people—then the right was transferred to tae clergy,
afterwards to the crown, and lastly to the dean and chapter;
no.».11 •bYcinne ea iea voted
the right of the people to a voice in the appointment cd teed
bishops had been recognised. A writer of some authority,
both here and on the Continent, Thomasinus, had, in
referring to a letter of St. Cyprian, laid it down clearly that,
in the earlier days of the church, the people had always
en the right to object to the person proposed for the
office of bishop. There was, however, nothing in that popu-
lar right to interfere with the rights of the metropolitan,
who would have to decide on the fitness of the party. The right
of the people to object to improper appointments had
always been preserved, whether the power of election was
in the people themselves, the clergy, or the king; and it
was proper that this popular power should exist, in order to
!prevent scandal to the church. Another authority, De
Mama, " Do Ceneordia Sacredotii et Imperil," had laid down
this doctrine, which was admitted also by Bingham, in his
4th book of " Ecclesiastical Antiquities " But, were the
construction of the statute contended for by the other side'
to prevail, this popular right would be entirely annihilated.
If the dean and chapter were bound to elect the
person Lamed in the letter missive, and the people
wore not to be permitted to object, then the popu-
lar right, which had existed from the earliest ages,
was gone. This was so monstrous an interference with
the whole principle of the popular constitution of this coun-
try as laid down by Blackstone, who said the people had al-
ways a right to a voice in the appointment of their rulers,
that he could not fur a moment believe it would receive the
sanction of the court.

Mr. Justice Coleridge : Your argument I understand to
be, that the people in earlier times had a right to interfere in
the election.
. _ . . . .

Mr. Baddeley In the earlier history of the church the
people had undoubtedly t..e entire power of election, and
though the right of electing has passed away from them, the
right of objecting has always been recognized.
Mr. Justice Coleridge : lut you say further, that the ex-
ercise of the popular right did not interfere with the rights
of the metropolitan to confirm.
Mr. Baddeley : Precisely so.
Mr. Justice Coleridge You admit the rights of election
on the part of the people are loot.
Mr Baddeley: They have no longer the power of elec-
tion, but they have still the right to have their voice heard
in the appointment of their bishops, and to object to them
for unfitness at the confirmation.
Mr. Justice Coleridge: Election and confirmation are two
di.tinct proceedings.
Mr. Baddeley: Yes, but they are parts of the same

thing.
Mr. Justice Pattison : When the power rested with the
crown, and the appointment was, as it were, donative,
do you mean to say that there was confirmation by the me-
tropolitan ?
Mr. Baddeley: Certainly I do, my lord ; and this in shown
clearly by the authorities I referred to yesterday. Though
the crown eeercised the right to appoint, that right never
supereded that of the metropolitan to confirm, which
always existed, as did that of th '2 people to object at the con-
firmation ?
Mr. Justice Erle asked a question as to the rite of conse-
cration, to which
Mr. Baddtlely replied that onnsecr►tion had always been
the right of the church. But, in all cases, wherever the
right of election was vested, the metropolitan was to deter-
mine upon the fitness of the person elected.
Mr. Justice Coleridge: I believe the spiritual jurisdiction
is in the hinhop alter confirmation ?
Mr. Baddeley : The spiritual jurisdiction is in the bishop
after confirmation. It is the consecration, however, which
makes the perfect bishop, thnugh he is emitted to ezercise
spiritual jurisdiction after confirmation.
Mr. Justice Erie Did not confirmation take place by the
Pope from the reign of Edward 111. until the statute of
Henry VIII ?
err. Baddeley : For a very long period confirmation wu
by the metropolitan. It wee about the time of Edward 111.
that the Pope poreeseed himself of the right to confirm Eng-
lish hinhops,.and it was the ezercise of that right by the Pope
that led to the passing of the statute of Henry V., wnich
after describing the inconvenience of the then practice, in-
vested the right in the metropolitan, thus showing the great
importance which then attached to this right of confirmation.
Mr. Justice Erle Tne 23rd of Henry VIII. was paned
to eosh e the bishops of this realm to consecrate, to prevent
the delay, consequent on applying to Rome, and the power
given by that act was completed by the 25th of Henry VIII.
Mr. Baddeley After papacy returned to its proper chan-
nel, and there wan one recognised p•pe, he resumed the
authority of controlling the appointment of the bishops, but
it wan in his capacity of supreme metropolitan. He super-
seded the authority of the metropolitan, but he did it in his
spiritual capacity, and there was still the inquiry into the
character and qualifications of the individual appointed.
Mr. Justice Erle : Take a period when the pope's power
was at the highest, when he assumed the right of coneecni-
tion as well as confirmation ; was the act done by the Pope
at Rome, or did be depute the power to the metropelitaa,
by a bull for the purpose?
Mr. Baddeley: I believe in some cues the power was de-
puted to the metropolitan, but when it could be done with-
out inconvenience, the act was done in Rome by a regular
process in the Ecclesiastical Courts there.
Mr. Justice Coleridge reraembered there was an historical
anecdote with regard ea the appointment of Amelia, that
William Rufus sent to the Pope for the pellium far Ameelm,
and, on receiving ill, did net give it to Amelia, hat kept it
kneed, hie okitr. being to males terms.