The Express.
London, England, 1848-01-25 00:00:00

may, however, be improved bya second visit Queen Vle•
tomes letter was not sent to the Emperor, the mandarins
declining to take charge of it. The presents entrusted
to Sir John Davis to deliver to the Emperor were also
declined.

SECOND EDITION.

DR. HAMPDEN'S CASE.

COURT OF QUEEN'S BENCH.—Tms DAY.
(Continued from our first edition.)
Mr.Waddiegton followed on the same Pieta, end referred to
a variety of authorities to show that the canons relied
upon by Sir Fitzroy Kelly were not applicable to bishops at
all- Toe decretals of Gregory IX. and Sextu VI., clearly
mud that inferior officers of. the church, and not
bishops, were referred to. It was moat remarkable thet, al-
though those canons and forms were relied upon by Sir F.
Kelly as the principal foundation of his argument, ho
did not cite a single case to show that there
ever was, either before or since the Reformation, any inns-
tigation such as that now demanded. And it was stall more I
remarkable, that the text writers were all silent upon the
subject. The learned gentleman reiterated many of the princi-
pal arguments already addressed to the cent t, and contended
that such investigations were not only contrary to the whole
scope and purview of all the statutes on the subject, but, if
permitted, would lead to interminable difficulties and the
most abetted inconsistencies. According to such high
authority the ceremony of confirmation was not im-
perative, but, so far from it, weemost frequently
dispensed with by the Pope • and as the King of
England stood in precisely the same relation to the
church as the Pope had done before the art of Henry
VIII , it of necessity followed that the ceremony of con-
firmation in this case was not an auntie] towards
the bishop's entering upon his functions. If the bishop
be deprived, that altered the case ; but, so long as he
was bishop elect, he was entitled to claim at the hands
of the crown the full enjoyment of his office ; and in that pod-
tion the bishop elect of Hereford now stood before the court.
Looking at the question in a general way, would any one
contend that the appointment of the crown to other offices,
such, for instance. es in the case of any of their lordships or
themselves (the court or WO, was to be canvassed or sub-
mitted to the supervision of any other authority) So much
liar the statute. And now, addressing himself to
the argument of his learned friend (Sir Fitzroy Kelly),
he must contend that the court could not legally interfere
in the present case, nor even on any ground of ecclesiastical
, law, for the court had no jurisdiction in such mature. In
Raymond's Reports there were several such cases decided ;
one notably, wherein the interference of the court by way
of minden:ins to prevent the court of delegates from pro-
ceeding to deprivation was c died for and repudiated by the
judges.—Lord Coke expressly laid it down that such interfer-
ence was unprecedented, and it would he equally so in the
case of the present mandamus, for it wes impossible to show
the slightest differ. nee between the two case 4. A mandamus
was applict for in the case referred to by the learned counsel,
calling upon the Court of King's Bench to compel the court
of delegates to admit the bishop's allegations; but Chief
Justice Holt said, in bis judgment, that the court could not
=stein such a mandamus, as, although it had the power to
do so in the case of a probate of a will, because that was a
' temporal cue, affecting private rights, whereas the court
was thee called upon to exercise an ecclesiastical jurisdiction
which it did not wastes. There were other cases reported,
wherein application appeared to have been made to obtain the
interference of the court in civil matters, as in that of Dr. Lee
(also reported in Lord Chief J ustice llolt's time), who applied
to the court to issue a mandamus to swear in a proctor; and this
was refused, on the ground that it was an interference with
the ecclesiastical authorities, and as such, could not be'done.
So also in the case of Hobert e. The Archbishop of Canter.
bury, the mandamus was refused by Lord Ellenborough ea
the same specific grounds as those laid down by Lord th.
There was also a large clue of cases relating to man
namely, those addressed to magistrates. The case nit=
relied on by Sir F. Kelly 16104otie where* mandamus was applied
kw against the justices of Kent, calling on them to make a
rate, which the _magistrates refused to do. A mandamus
was applied for and granted, but there was nothing in that
61011 to show that each an assumption of authority had my
inference to ecclesiastical matters.* In the case of Mr. Smith,
reported in "Adolphus and Ellis," also one of mandamus
and prohibition, after appeal to the judicial council, the
court refused to receive even a petition suggesting
that a wrong decision had been come to by the privy
council, and Lord Chief Justice Denman refused, on
the ground that the court could not assume an au-
thority to compel other courts to reconsider their
judgments; and the other judges, Littledale and Patterson,
concurred in this decision. The same decision had been
come to in the Court of Exchequer, by Mr. Baron Parke,
who laid down the same principle of law. But the cares
el mandamus against magistrates were so numerous as to be
quite familiar to the court, and he would only cite one or
two of the most apposite cases, one of which was in " Adol-
phus and Ellie," VII. p. 127, " Experts Pratt;" which
was a case for quashing a conviction which had been
appealed! from and confirmed by the court below,
the application being made on the ground that evi-
dence had been illegally rejected. The Court refused
to grant the mandamus, expressly stating that there was no
ground for so doing. Having said so much upon this point,
he would not further trouble the court, but would content
himself with the general arguments upon which his case
mated.
Dr. Addams then rose, and said that, in the absence of his
learned friend (Sir F. Kelly), he was unexpectedly called
upon to address the court, and that he feared he
should not be able to do justice to the ease,
as he was unprepared to enter upon the argu-
ment in full, having only expected to be called upon
to sustain the case of his learned brother; and he must also
observe that he had not calculated upon being called upon to
address the court that day. Oa those grenade, therefore, he
claimed the indulgence of the court whilst he stated his
reasons for the support of the mandamus. In moving the
court for the discharge of the rule, the learned attorney-
gener .1 had in the first place relied on the fact that the pro-
ceedings of the archbishop or of hie representative, the
vicar-general, were merely ministrative, and that! the
proper remedy for any informality or irregularity
was not by way of mandamus, but by appeal to the proper
ecclesiastical court. He would proceed to deal with that
part of the learned attorney-general's argument first, ad-
dressing himself subsequently to the remaining sections of
his speech. Now, with respect to the ministrative acts at
the Archbishop of Canterbury, or rather of his repre-
sentative, the vicar-general, the construction pat
upon that part of the proceeding was argued by
the learned counsel to depend wholly upon the constrosb
tion put upon the statute of Henry VIII. It was contended
by the other side that the act of confirmation was merely
ministerial on the part, of the archbishop's officer, and that, es
it might be dispensed with under c,rtain circumstances,
so it was not as essential or necessary thing to be done
before proceeding to consecration of the bishop elect.
But, for the purpose of introducing this argument, the At-
torney-Oeneral had entered into a very elaborate and learned
disquisition on the ancient mode of appointing bishops so-
tenor to the establishment of the present law. He (Dr.
Addams) would not trouble the court upon that pert
of the argument, but he would say a few words upon
what the course of proceeding in such cases wee
anterior to the establishment of the canon law. The
election of bishops, then, previous to the canon law being
preemdgated, was visited conjointly in the people and the
t. In the process of time the people came to be ex-
iled from participation in the election, the nomination at
the bishop resting with the clergy ; at a later date it became
vested in the diocesan, and later still the king assumed the
sole right of naming the bishop. When the statute of
I Henry VIII. came first into operation, the clergy alone had
the appointment of bishops, and the learned attorney-
general had cited Blackstone and other writers te
prove so common and obvious a proposition as that
the appointment of bishops was now vested in the
crown. That was dear enough, but it was not
quite so clear that the crown possessed the power of
nicking a bishop; and when the learned gentleman as-
serted that a bishop could legally exercise his functions with-
out having been previously confirmed, and that the person
confirming him were not competent to
er
nqughoZto his fitness, he (Dr. Addams) must
observe, with reaped to the argument that the prerogative
of the crown was involved in the question, that it might as
well be said the prroitative would be attacked if, after the
crown had nominated -a clerk to a vacant living, the bishop
of the diocese were, in the exercise of his functions, to inquire,
previously to inducting such person, whether he was fit and
proper for the office. That would be as much an attack on
the prerogative as in the case under consideration; and yet it
was of every day occurrence. Now, without calling the pre-
rogative of the crown at all in question, what the supporters
of the mandamus maid was, that at all time., end under all
circumstances whatsoever, whether the election of the bishop
was the act of the people and clergy, or of the clergy alone,
or of the king, wheresoever or is whosoever hands the power
of election was vested, the nomination was incomplete until it
had been consummated by confirmation. The consumma-
tion proceeded by way of examination of the clerk
presenting himself as bishop elect, prior to his con-
firmation, and this proceeding was performed by the
proper judicial authonties, in a competent court, where all
persons were to be cited and entitled to be heard, if they ap-
peared; after which, if the opposition proved invalid, the bishop
was entitled to consecration. If the course of proceeding
was in the order which he had lei I down—and that it was so
prior to the establishment of the canon law, was obvious
from a passage in Justinian, who expressly says that the
bishop elect IB to undergo a delay of three months
prior to being so consecrated, in order to allow
of time for inquiries into his character and qualifications
for the office—how could it be maintained that confirmation
was a rite utterly unrequired by the existing law ? The au-
thority of Justinian was obscure, burl on examining into the
canon law, there would be found no lack of evidence
that confirmation was an essential and indiepensable
rite. All the old writers on canon law had so laid it down, and
it was for the other side to show that the rules so laid down
by them prior to the time of Henry VIII. had not been en-
grafted upon the canon law, which had governed the church
subnqueat to the Reformation, before the court could enter-
tain their arguments. The doctrine h" (Dr. Addams) laid
down bad often been mooted before, and it had almost been
adopted into the Corpus Juris Canonici, having obtained the
sanction of Paul. The learned doctor then proceeded to
quote the text of Lancellotus in swiped of his argument,
when the attorney general signified that he could not find
the quotation in the copy of that writer, from which le had
himself read extracts during his argument.
Mr. Justice Coleridge—What is the date of your edition,
Dr. Adderne 1
Dr. Addams-1684, my lord.