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

77.2
F

penaltleswere now at an end. Lord Bacon, in a treatise,
enumerated the several offences and cases of prtemunire in
force in his time. He manifestly had the statute of Henry
VIII. under his consideration at the time he published his
treatise, for he retained the provisions which were in force
with reference to the court of Rome, but be altogether
omitted all reference to the pen Wes of pi temunire, tole in
tarred by the dean and chapter, if they refusel to elect
The penalties were repealed, except with reference to
the court of Rome, and that appeared to have been
Lord Bacon's opinion. If the act of Henry VIII. was
historically considered, it must be clear that it was in-
tended to prevent the influence of Rome in this coun-
try. But the king could have bad no other
object. He had no grounds and no reason for
remodelling the ecclesiastical forms previously adopted.
He knew that Cranmer, the primate of that day, was an ob-
sequious servant of the crown. The King, therefore, was
well aware he would have to encounter no opposition to his
will in that quarter. There was, therefore, no necessity to
alter or remodel the former regulations and the usual forms
adopted by the church, all that was sought to be attained
being to curtail the power of Rome. The canon law as to
the eh-tion of bishops was expressly continued by statute.
Mr. Justice Coleridge asked if the 32. commissioners had.
ever, in point of fact, been appointed to revise the canon
law 3

Mr. Baddeley believed not. The ecclesiastical law, he was
contending, was not altered ; and, looking at the statute, at
its history, and the circumstances of the time, there was
nothing in the word "confirm," as therein used, which
should lead to the inference that it was intended it should
be construed differently to what it had been before in
the canon law ; and all that prevailed before,
es to the duties of the metropolitan, in respect
to confirmation, so far from being repealed by the statute
of Henry VIII., was made, if possible, stronger.
The act of confirmation, therefore, he contended, remained
a judicial act, and must be so treated. From all that ap-
peared to the contrary, it was intended that the cot firmation
should remain what it had preciously been; a judicial act in
which the archbishop should inquire and adjudicate se to
the fitness of the party elected. ,Confirmatien had precisely
the same meaning in the act of Henry VIII. that it had in
the statute of Henry V. The archbishop in both enactments
was treated as the pastor of the church, and in his
character as pastor, it was his duty to inquire into the piety,
learning, and conduct of thee:: who were to officiate as
bishops under him. He would alas submit, that if, by the
ancient canons of the church and the general rule of law
which prevailed antecedent to the Reformation, from Marina
Charts downwards, it was always understood that the right
of confirming was an inherent right of the archbishops of
this realm' and if their functions were in this respect com-
plete, antifurther if those rights were afterward@ continued,
except as regarded the interference of the see of Rome, and
the rights and privileges of the clergy were confirmed to
them, that would furnish to the court a sufficient rule of
construction of the statute in question to justify the Making
of the rule now applied for absolute.
Mr. Justice Erle asked whether there was not a period in
our history in which the King claimed to appoint a bishop
without the interference of the archbishop
Mr. Baddeley was not aware of any such case.
Mr. Justice Erie spoke of a period shortly after the con-
quest.
Mr. Baddeley proceeded to refer to the weenie/its of par-
liament in which the rights of the clergy were confirmed,
from time, to time by various statutes, from the
reign of John, and contended that this was sufficient, in
a case in which a word of doubtful meaning occurred,
to justify the court in putting a construction
upon it in accordance with those several statutes. There
could be no doubt that when the act of Henry VIII. passed,
the metropolitan did exercise the right in the mode which
he (Mr. Baddeley) contended. Now if the statute was to be
construed in the way his learned friends contended for, away
went all the authority of the vicar-general's court.
Lord Denman asked whether the learned counsel thought
he could finish his argument in a short time.
Mr. Baddeley was afraid not.
Lord Denman thought it would be better then to adjourn
the farther argument until to morrow.
The court then rose at half-past four o'clock.

Kr. Beddeley proceeded to say that be bed, on the pre-
vious day, cited many eases to show that nominations bad
proceeded from Rome, subject to revision and appeal from
the people. This view was confirmed in every particular by
Thomas:nu', the, authority whieh he had then before him.
The privile gee of the metropolitans were—tint, they were
to regulate the election of their provinetal bishops.
if a bishop were elected without the consent of his metropo-
litan, the dean and chapter were to pronounce such election
null and void. In every case the rights of the people were
so far preserved, as to entitle them to a voice in the election.
He would refer their lordships to two or three authorities on
canon law. The learned counsel referred to the Decretals
in the first volume of " Corpus Juris Canonici," and other
authorities, to show that in all eases tinier the papal regime
a strict inquiry into the morals and habits of the candidate for
the episcopate was insisted on, and that this inquiry was ob-
tainable at the call of the people. In this country also they
had had en instance, and that of recent date, iu which this

law might have been enforced, and might have been nicer.
eery. Until lately the Bishop of Sodor and Mats was ap-
p inted by the E tel of Derby, who might have exposed him-
self to canonical censure if he had appointed an improper
person, and how could the fact have been ascertained except
an appeal ? If this were so so regarded the rights of the
metropolitan and people, if such had alweys been the doc-
trines held, he would himself submit to their lordships that
they ought to give strength to the rights of the people by
granting the present application. To put an end to any
right, where any trace of it could be found, would be a prac-
tice destructive of all popular privileges. Them were many
thisgs connected with a candidate's conduct which the
archbishop, merely acting in court, could not possibly know;
and if the people were debarred the right of informing
him, and of appealing at episcopal elections, abuses
must creep in, and improper persons would infal-
libly be elected. How were the people to exercise
the rights if this application were refused? Look at
the consequence. A man might be living in the grossest
iniquity, and still, as far as the crown knew, he might :be elf-
phis for the episcopal ollice. The people among whom he
had previously mixed, the clergy and laity of the diocese,
could alone be the judges of his conduct, moral and religious.
A large close of the clergy and laity were committed to the
controul of a bishop. Was it not fair and reasonable that
those who were so sullect to his authority, and had the power,
previous to his appointment, of making know, scandal if any
existed against him, should, at all events, have the matter
thoroughly sifted. Was not that fair between man and man,
and bow muck more so when the question was between
spiritual governor and his flock. (Here Sir F. Kelly entered,
and took his seat besides the Attorney-General. The learned
Fentlem'Rn looked vet), ill.] He could hardly have thought
rt neccatary to have argued this point, hut, as the learned
enamel for the mown had endeav3ured to convert the arch-
bishop into a mere machine, he felt that he
could not toe strongly impress it upon their lordships.
From the time of Henry VIII. &mei to the present time,
such a doctrine as that held by the counsel for the crown
had never been enforced; and he asked, was it because
charges of scandal had hitherto been tinneoessary, that the
rights of the people were to be utterly annihilated ? A great
deal had been said about prtemuaire, and the eircumstances
under which its penalties were incuned. With respect to
that statute, he contended that the archbishop would not
subject himself to its provisions by merely allowing fair and
reasoneble inquiry. Lord Bacon quoted the various cases of
presmunire, but in no case did he allude to the archbishop.
He referred to the purchase of a bull from the Pope, but he
said nothing with reference to the archbishop; and, there-
' fore, it would seem that that dignitary did not incur the
penalties, unless he refused to confirm under the influence
of the see of Rome. In fact, no indictment could
be fremeil against him unless it set forth a
charge of undue influence from Rome. lie was
ordered to confirm under the king's letter potent,
but the command of the letter was, that the election should
take place without " suing or procuring " from the see of
Rome. So that the fair and obvious construction of the
statute was, an he contended, that it would be impossible to
indict any archbishop for non-confirmation, unless the in-
dictment showed that the let or hindrance arose from com-
pliance with, or submission to, the see of Rome. He was
satonished that the learned vicar-general at Bow Church
should ever have supposed that a person coming into open
court, and calling for inquiry, could have exposed himself
to the penalties of this tyrannical statute. They had seen
that, previous to the time of Henry VIII., the election of
bishops was a judicial proceeding and inquiry. Then, if the
statute only said "confirm," it could not be held entirely
to convert a judicial act into a ministerial one. The officer
was ordered to do a judicial act, but not to convert it into a
ministerial one. If that was the object, why have the form
then at all? Their lordship, would find in the authorities
that confirmati n was part and parcel of the consecration,
and therefore it was not true to assert that it formed part
of the election. It was quite distinct. Whatever happened
on the election could not apply to that which was part of a
totally different thing. The election must he held to be a
judicial proceeding, iujid no other. His Lensed friend had
alleged that the statute of Henry VIII. intended confirma-
tion and election to be similarly performed.
Mr. Justice Erle : If confirmation be a judicial act, the
1 act must either annul or confirm. What is to be annulled?

Mr. Baddeley: The election. If the archbishop refuses
to confirm the election, there is no other person who has
authority to consecrate, and no power on earth can compel
hint to perform the act. Therefore, the objection of his
learned friend (Mr. Hill) fell entirely to the ground. This
view was completely upheld by "Gibmil's Codex," vol. 1.,
p. 114. The learned solicitor.general fad i•peken of the
electiou as a mere t. sham." That struck hies as strange
language for a solicitor-general.
Mr. Justice Coleridge: Would a mandaaks be to the
archbishop to consecrate?
Mr. Baddeley : I apprehend not. The learned counsel pro.
ceded with his argument. Archbishop Creamer, in his
" Form of Confirmation," used words, than which nothing
but a sham, and was rather a most solemn act. In the Re-
gister of Canterbury, there were words used to the same
effect, and also in the case of Archbishop Chicheley. The
same words were used in the cue of Archbishop Parker.
Mr. Justice Erle t is there any instance of the opponents
to a bishop's election claiming the right now claimed. Ido
not mean a co-elector's, but of any person claiming to object
to the fitness of a bishop.
Mr. Baddeley was not able to my ; hut at all events wit-
MO= ware examined, and opponents were cited. It was no
sham inthe time of Wilkins, as appeared in his life, by Strype.
The form of confirmation was given, and the prooma was a
very detailed one. It was expressly said by Strype that tha
bishops took upon themselves the office of • acting judicially."
When, then, did the form become a sham, if it was not one
in the time of Cranmer, or Parker, or Wilkins? It was
not a sham in the time of Charles 1., as appeared from the
case of Everett. They had evidence in the time of Bishop
Fell, that it was not a sham in the reign of Charles 11., be-
cause that learned bishop, in a note upon " Clement's
Epistle," said that the form of making bishops at that time
was the same as existed in the primitive church, and, con-
sequently, that the people had a will in the election. No
word could be stronger than the words used by him, to
prose that the form was a reality and • substance. This
brought down the subject to 1669, which was the date of
Fell's publication. He would not allude to the case of Mon-
tague, which had been so much argued, except to say that
there was a more detailed account of his sacs in Haylin's
" Life of Archbishop Laud," than in the accounts of Cattier
or Burn. At a later period, Dr. Nichol, in hie " Com-
mentary on the Book of Common Prayer," a work of great au-
thority, used almost the same language as Bishop Fell, and
laid it down that they (the protestants) did examine the
bishop elect according to the canons and the primitive
church. That continued the stream, and so it continued to
the present time, They had the powers continued according
to the primitive times up to the present; and could it be
maintained that it was of ao use, seeing that it was
appealed to by some of the most learned men in the
church against the Romanists, as a proof that the
bishops of the church had been regularly consecrated?
Of such importance was the matter considered, that in the
time of Charles II and William 111., commissioners were
appointed by the crown to take care that proper persons only
should be selected to fill the office of bishop. And it was
their duty to inquire into the character and fitness of the
11 bishop elect. And because in recent times opposers had not
come forward to urge objections, he would aids if the disuse
of • practice was sufficient to abolish it entirely. There were
several courts which had, in the course of time,
_fallen into
disuse, but which were ea far (rem being abolished that they
were afterwards revived. His learned friend, Mr. Hill, al-
luded to the USA of Ruodeil, and asked sarcastically
what • state the Irish church must be in when
confirmation was not insisted on. But what wan
the facts with regard to that case. Why it was
well known that lie would not have endured the ordeal of an
examination at Bow Church, and therefore the minister of
the day sent him over to Ireland to be consecrated. "It had
been said that the principles of the Reformation were in-
volved in this question. lie did not think that was so, be-
cause there was always ample room for selecting a proper
person for the office of a bishop, and in his view of the
case the people had always a power of objecting to an im-
proper selection. But if the principles of the Reforma-
tion were at all involved in this cam, they were
much more identified with those whom he repro-
seated than the party on-the other elide. For, what was
the object of the Reformation ? Not to transfer, surely,
from one infallible power to another, unlimited dominion—
the end and object remaining the same. The object which
the reformers had in view was, to restore to the crown those
ancient rights which belong, d to it, and which had been
usurped by the Pope, and to leave in possession of the
church those rights which also belonged to it. Their
design was "to give unto Caesar those things which
belonged to Caesar; and to God, those t'.ings which
were God's." The object of the act of Henry'
VIII. war to pet rid of the appeal to Rome. And if the
principles of the Reformation, if practice, tradition, acts of'
parliament, and the law writers on the reformation were
consulted, it would be found that all concurred in this—that.
the crown was restored to its ancient rights, which had been
usurped by the church, but that the church retained all that
properly belonged to it. lithe principle of the &formation
therefore, were involved in this case, it was °abided( of those
whom he represented that they were so. How was the pre-
rogative interfered with 2 Was it in the manner suggested
by Dr. Addams in the coarse of his argument? That
would be aboard in the highest degree. 'Why, even letter
patent
u had been revoked by the crown, because unfitness or
Lewd had been proved after their grant ; and was the crown
to be held infallible in the choice t..if • bishop, or in spiritual
things,whilat its fallibility was adroitted in temporal mitten?
So far from this being an attack on the prerogative, it was in
corroboration ; for the whole question turned upon placing
the right of the crown ts appoint for the benefit of the
church on the best possible footing—namely, by ascertaining
whether no unfitness existed in the person chow!
te fill so high • trust as that of • bishop.
If, therefore, the prerogative was not brought in gao-
l:UM, the next point to consider was whether ant
wrong was done to the candidate for lonfirell:tion by dthVinif
that nte until en examination had been instituted tuts Ms
Stases. The OM et Archbishop Parker was a mfileinit
answer to this luggegiou, for thorria it wee dcaid•rd that the