The Express.
London, England, 1848-01-18 00:00:00

whether the consent of the Court of Queen's Bench too
entertain the question, shown by granting the rule
nine for • mandamus, lies been celebrated as a triumph
by those who have been so mercilessly defeated up to
this point in each successive attempt at resistance ;
bat it may be useful to state concisely both the nature
of the advantage which they have gained and its
probable extent.
In granting a rule nisi, or in other words issuing an
order which is to be obeyed, unless cause is within a
proper time shown to the contrary, the court has of
course expressed no definitive opinion on the legality
of the course pursued by the vicar-general and his as-
sessors. It is very possible that the counsel oppooldts
Sir F. KELLY may produce precedents or a:gum*
which will satisfy the Queen's Bench that the op-
weers at Bow Church had no locus standi, or right to
be heard: but in the meantime it must be said that
in entertaining the question the court has to a certain
extent dissented from the confident overruling of the
arguments of the advocates for the opposers by the
learned civilians who represented the archbishop. It
was a wise rule of the late Chief Justice TINDAL, that
a case should be allowed to try itself. It would have
been safer and more satisfactory to allow the motion
of the opponents for a hearing to discuss itself, so far
as to listen to the arguments on the other side. The
flagrant and ostentatious absurdity of the proceedings
at the confirmation was certainly not a proof that they
were illegal ; but it assuredly raised a reasonable sus-
picion that there was a want of technical accuracy in
the proceedings; and it called for peculiar astuteness
in the presiding functionaries to find out some method
of reconciling the formalities which they were called
upon to celebrate, with the actual state of the law.
Before Sir F. KELLY had made his motion, we had
intimated an opinion in this journal that Dr. BURNABY
and Dr. LUBHINOTON bad overstrained the absurdity
of the existing law. We endeavoured to show that a
meaning might be given to the proclamations and
citations practised from time immemorial. without in
any way affecting the act of HENRY VIII., or any
other law which guarantees the royal supremacy. If
it is assumed that the confirmation is intended as a
security for obedience to the preliminary require-
ments of the law—if the archbishop is supposed to hold
a court to satisfy himself that the person presented as
the lord elect or inchoate bishop really holds that
character, there is nothing either in the act of HENRY
VIII., or in the Clergy Discipline Act quoted by Dr.
LUSHINGTON, to prevent him and his officials from
giving a hearing to opposers who may possibly pro-
pose to controvert those essential facts. It seems not
impossible that the rule may be made absolute, and
the ecclesiastical officials compelled to commence the
proceedings de noro on this exclusive ground.
It is true that Sir F. KELLY'S argument went far-
ther. Ile moved upon affidavits stating that the
deponents believed that Dr. HAMPDEN'S doctrines
were unsound ; and he supported his application by
ingenious reasoning on the meaning of the word con-
firmation. The act of HENRY VIII., according to his
reasoning, required the archbishop to perform, not a
single ministerial act, but a complicated duty involv-
ing judicial functions, as far as the ancient custom
bad attached them to the ceremony. We do not antici-
pate that the court will adopt this view. Confirmation
may be a complex notion involving many separate
conditions to complete it ; but we cannot understand
how a mandate of confirmation can be obeyed, until
all these conditions have been fulfilled, including the
most essential act of all—the ratification of the election.
If there are judiial duties included in the act ef con-
firmation, the decision of the judge is forestalled by
the law ; and whatever opinion he may form, he must
carry out the intentions of the act by obedience to the
crown. Whether the individual presented to him
has been duly nominated, and in fact elected, he must
consider before he can know that he has jurisdiction;
but when this point is disposed of he appears to us to
be "fondue oliciojudicialt," and to have only a minis-
terial duty to perform. In support of this view we
may remark, that the act directs the archbishop or the
bishop, whom the crown may at pleasure substitute
for him, not only to confirm but in the same clause
to consecrate, the bishop elect. Sir F. KELLY will
have some difficulty in showing thut consecration is a
complex duty, involving judicial functions.
This, we think, is the true answer to the claims of
the opposers to bring the bishop elect to a sort of trial
for heresy. Dr. Lesniscroe's argument from the
Church Discipline Act, seems to us scarcely as con-
vincing. By that statute (3 and 4 Vic., c. 86) a certain
mode of proceeding against clerks in orders is provided;
and it ie enacted by a clause to which the learned assessor
more immediately referred that no criminal proceed-
ing shall hereafter be taken against any clerk in
orders except under the set. But before we can
apply the prohibitive clause to the proceedings at a
confirmation, there are two points to be established,
which present some difficulty ; one, that a bishop elect
is a clerk in orders, within the meaning of the act;
and the other, that the anomalous investigation aimed
at would be in the nature of a criminal proceeding.
We do not believe that either of these questions could
be answered in the affirmative. The Discipline Act
is, as a penal law, to be construed strictly ; and it
provides in every case for the punishment of a clerk
orders, through the instrumentality. of a bishop.
We do not believe that Dr. HAMPDEN is at this mo-
ment subject to any bishop ; nor do we think that
the archbishop, if he was to investigate, the
charge of heresy, would possess any more
criminal jurisdiction in the matter than the
officiating minister of a parish, when he listens to
an objector who forbids the banns of marriage. It
may not, perhaps, be generally known that the man-
date under which the archbishop acts might have
been directed to any four bishops in the Queen's do-
minions. Will any one maintain that the prelates so
named could have formed a court with a power of
holding criminal pleas ? If not, or if Dr. HAMPDEN
is not a clerk in orders within the meaning of the
act, no jurisdiction previously possessed by the arch-
bishop can be barred by it. That he possesses no
jurisdiction, we have already endeavoured to show on
distinct grounds.
We by no means regret to see any proof that the
courts of common law exercise an efficient supervision
over inferior courts and ministerial functionaries. If
the officials of the archbishop have made a mistake, a
mandamus is the proper remedy. The effect of it will
be, if it issues, to replace the proceedings at the point
where the error occurred. The Queen's Bench give
no directions or advice to the functionaries whom they
compel to perform their duty, as to the manner in
which they shall execute it. They tell a Court of
Quarter Sessions or a corporation to do some duty
which they have declined to do ; but for the mode of
doing it they hold them responsible. If the arch-
bishop is directed to hear the opposers of Dr. HAMP-
DEN, he will bein no degree precluded from refusing to
enter into the alleged heresies of the bishop elect. It
is to be hoped that in a matter of so much public im-
portance the Queen's Bench will take the case out of
its ordinary turn in the crown paper, that the conse-
cration may be proceeded with without unnecessary
delay.
We can hardly attribute to the poeers who in-
struct Sir F. KELLY any great zeal fo op r the authority
of the Courts of Common Law, or any of that enthu-
siasm which lawyers may not unjustifiably feel for the
preservation of logical consistency in the most techni-
cal fictions. Yet we confess that it is difficult
to know what other objects they hope to
attain. Do they seriously think that the
cause of the church would be greatly ad-
vanced, even if the alleged errors of Dr. HAMPDEN
were regularly brought before the ultimate authority
for religious truth in England, Sir HERBERT JENNER
FUST ? That eminent functionary some years ago
gave a decision to which Dr. HAMPDEN refers with
characteristic complacency. The minute philosophers
who conduct the protestant and Puseyite controversy,
were absorbed at that time in the great stone altar
question of St. Sepulchre's, at Cambridge. Pro-
testantism and wood, catholicism and stone, were at
issue. After many learned arguments the ecclesiasti-
cal judge discovered some rubric or canon which
enacts that the piece of furniture in question shall be
placed in any part of the church which shall seem
good to the ordinary. " Here," said the judge, de-
righted to find a reason for a decision," is a proof that
the proteetants are right. Altars or communion-tables
are evidently intended to be moveable. Wood is move-
able—stone saysirs of a fixture. I decree, therefore,
that St. Sepulchre's Church shall have a table of
timber." We do not see why those who cared about
such a question should not be satisfied to let their
religious faith rest on such an authority. But it will
scarcely satisfy those who have a real enthusiasm for
the idea of a church.
It is strange that the opposers will not discover that
even if they could get a trial, the decision mast be
against them. The only two persons who of all that
have taken part in the controversy, confess to having

read the Bampton Lectures, Archdeacon HARE and
the re-tractarian Bishop of Duos% declare that Dr.
HAMPDEN is orthodox—a oonclusion which in our
humble sphere we have not unfrequently advocated.
Do they wish to see an opportunity given for opposi-
tion to future appointments P They should remember
that what *crapulous clergymen do now, publicans
and sinners may carry out hereafter. Mr. Got-
TISEIDOK has as good • locus stondi as the respect-
able persons whose names appeared in opposi-
tion to Dr. HAMPDEN. The crown will, at any rate,
not be controlled. It can issue a commission to any
archbishop and two bishop., or to any four bishops
within the Queen's dominions, in England, Ireland, or
the colonies, instead of to the Archbishop of CANTER-
BURY. Dr. WHATELY, Dr. STANLEY, and Dr.
MALTBY might have been appointed to hear the
charge of heresy ; and the opposers would have been
orally informed by the Archbishop of DUBLIN that
they were "a set of pettifogging attorneys." The
opposers, by incurring thehostility of their future
diocesan, show that they disregard their own interests.
Wor e wished that they showed as strongy their re-
gard to the best interests of the church lof the state.