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

J

be stood elected and approved of under their
et might sound arbitrary to say to the dean and chap-
s Hare is the man foe you to elect ;" bat this power
given to the Crown for the good of the country ; sad if
authority was id before the election, on what
Ids could it bedisputed after the election had been
? Why a power oaid exist to disavow the bishop
, after he had been elected according to the established
s, and when he tame to the archbishop for confirmation,
could net my, unless it was to tell the crown
its anthorky and prerogative were mere shadows.
as it not earpriedng, if this power of opposing did exist
somewhere, that none of the books had laid it down how
it was to be exercised? If he referred' to the canon-
law, as laid? down by John d'Atho, he found no coarse
of proceeding painted out to be taken in such a matter, nor
was there any authority to be found on the subject in Lynde-
wode, notwithstanding the unthet had been made of the gloss
contained in that writer by the learned couasel on the other
aide. The learned gentleman then proceeded to argue,
on the authority of the gloss referred to, that the word
discussion (diseussio) did not imply a public ergo-
ment in court, but merely that the parties, judg-
ing of the fitness of the bishop elect, should reflect and
muse over the points raised against him in their minds,
but by no means that any other mode of judging or deciding
on those questions should be resorted to. The other au-
thority reterred to, vie, John d'Atho, certainly could not he
relied on es sanctioning, or even OWE( countenance to ;he
objections by his learned friend (Sir F. Kelly),
to the confirmation of Dr. Hampden as bishop. There was
nothing to show what the meaning of the words "inter
etetera" was, uolesa the glom of John d'Atho was con-
sulted, who was at variance with Lyndewode on this point.
The question was, whether the archbishop confirming had ,
the same power of examining into the election of the
bishop elect, es was shown by Lyndewode to be formerly mo-
used by the same confirming bishop. The learned counsel
contended further, that there was nothing, either in John
Peckham or any of the other authorities cited, or in the
glossaries in their text-books, allowing that there existed a
power in the archbishop to inquire, either before, or at con-
firmation, whether any and what unsound doctrines were
entertained b 7 the bishop presented to him for confirmation.
The authorities relied on by the learned counsel on the
opposite aide having failed to bear him out, what further
grounds (were there for persisting in the opposition to Dr.
liampden's exercising the episcopal functions ? Laneellott us
said expressly, that no bishop could exercise his functions
without being confirmed, but the learned consul did not
read the glees ea the WlNalimponiet, beeeia that Liaised
writer expressly mid, that in his day (Elixateth), each
confirmation as had heretofore been held indispensable, was
no longer necessary. It was therefore clear from this autho-
rity that even the Pope himself could dispense with the
rite of confirmation, and es his authority was now vested in
the crown, it was clear that the old mode of confirmation
could be dispensed with by the crown.
Lord Denman : It appeared to us from the Attorney.
General's admission, that the Pope had never sanctioned the
dictum of Lancellottun and perhaps in consequence of that
vilTy sentence.
The Solicitor-Gen.: But it appeared further, that under the
old form of confirmation, the archbishop exercising that office
was to iffquire into the morels and qualifications of the new
candidate ; and that certainly opened a wide door for in-
quiry. It was not clear from toe text of the authority re-
ferred to, whether the archbishop was not hound to cite
all opponents to come in and to state their objections to the
bishop's confirmation. If Buck a practice were to obtain,
he would call upon the court to consider the difficulties that
would ensue. Might not the clergy of a neighbouring
diocese come forward and say, " Though we have no imme-
diate interest in the matter, )et the bishop elect
might be trawl tied to our diocese," sad on that ground they
might be deemed competent opponents. Suppose, again, a
turbulent opposer of the church were to claim a hearing,
would he not, in his capacity as a payer of church-rates, he
entitled to a hearing ? \Vas the canon law sufficiently explicit
to induce the court to admit the opponents in the present case ?
Supposing the court bald that the present parties were enti-
tled to oppose ; what were they to oppose ? What said
Bishop Gibson I—he could not oppose the statute under
which the prerogative of the crown was conferred. He said it
was not the bishop who presented himself, but the dean and
chapter, "who have elected as a fit and proper person him
wham the crown had recerameeded as such." They pre-
vented, saying, "We have unanimously elected this man,"
and under the sixth article they elect the person recom-
mended them, and they pray the confirmation by the arch-
bihop of the bishop elect. Bishop Gibson, in his " Codex,"
said when the petitio sumnsarare is presented, proof of its
contents roust be given on presentation for confirmation.
This had been done in this instance. The process of elec-
tion had been proved by the return of the dean and chapter,
and they had also proved, as required even by the
canon-law, the " persona" of the man recommended by the
crown and elected by the dean and chapter on that mammon-
dation. But be did not think it right to leave the
question of " persona " is that position. He would refer
the court on that question to a work of great authority
among civilians—vs., Von Espin's " Jurist, to show that if
Ithe " persona " were not sufficiently proved so as to atop all
opposers, the fact of the recommendation by the crown and the
election by the dean and chapter of the individual returned
under their seal, was a sufficient proof of the " persona"
and his fitness for the office of bishop. But he contended
that his learned friend had not shown the existence
of any general oak as to the matter of confirmation •
and further, he submitted that even if his learned friends had
shown any ;role, it was in direct restraint of the prerogative
royal of the sovereign. The Queen had chosen a man suffi-
ciently learned, and had commanded the archbishop to son-
firm the bishop el, ct. Any hand that stepped that confirma-
tion, therefore interfered with, and inflicted a damage and a
wrong on the prerogative of the crown, exercised under an act
of parliament. What, thee, was the archbishop to do ? It was
monstrous to suppose that any inquiry on behalf of the oppo-
sere could be so speeded as to be completed within the twenty
days, the period limited to the archbishop for his confirma-
tion. In conclusion, the Solicitor-General said that the po-
sition of the opposers was this : They told the archbishop,
" Yon know nothing of the proceedings; we alone know the
law of the land ; and we will compel you :o obey what we say
is the law." They further mid is effect, " The Queen, in
issuing her commands, does not mean that which they imply
—the penalties of preemunire mien no such thing; and the
whole matter, from beginning to end, is as we stated it to
be. We know what war peasiog in the minds of Cranmer
and the people of England, at the period which has been
referred to ' • and we take our stand, and tell the people and
the Church of England, that we know a way by which the
Queen's prerogative may be let, hindered, and restrained,
in a matter which involves the peace of, and which ought
to be dear to the heart of the people of, this country. We
• take our stand on the authority of Lyndewode, Lan rellottus,
John d'Atho, and other foreign Riker! on the canon law,
and the laws of England are but as dust in the balance.

Mr. M. D. Hill, Q.C., followed on the came side, end en-
tered upon a careful examination of the statute of Henry
VIII. He contended that the proceedings at the confirma-
tion in this instance had been conducted according to the
rules and regulations provided by that statute. Had the
archbishop refused to obey the commands of the Queen no-
thing could have shielded him front the penalties of prmmu-
sire. He had, however, obeyed the order to perform that
which was purely a ministerial duty; and he, therefore,
ought to be held harmlem. The learned courted cited the
statute of Edward VI. and of Elizabeth, to show that the
statute of Henry VIII. was not (as had been urged)
• " shadow of pretence." The confirmation of a bishop
elect was, in fact, nothing but a matter of form.
He would further beg to all the attextion of the court
to the authority o' Blackstone, who, in his Commen-
taries, vol. 1., p. 379, distinctly declared that, by the 25th
Henry VIII., the ancient right of nomination was, in effect,
restored to the crown; and this same doctrine was
repeated in the fourth volume, in the celebrated
chapter on prsemu nice, and the principle of the donative
character of the bishoprics' applied alike to those created
before and to those created alter the pealing of the act. This
statement of Blackstone had in no one instance been con-
troverted by any of his commentators. To these express
authorities what hsd been opposed ? Literally nothing.
As to the case of 1628, in the first place, it appeared in no
report at all, and, supposing all the circumstances to be as
stated, he was quite indisposed to imagine that the court
would regulate its solemn decisi in by the resultof a debate in
one house of the legislature under such circumstances and at
such a time. The case of Evans sad Astell, cited by Sir
Fitzroy Kelly, was simply a question whether • bishop
of Hereford, who was at the same time dean of York,
avoided that bishopric and that deanery between his election
to another bialropric and hie confirmation therein ? What
could alone avail his friends would be the production of some
case in which the power of opposers to come in and oppose
the crown was established by the fact of occurrence and
the subsequent fact of confirmation by authority.
The court here interrupted the learned gentleman, inti-
mating that it would hear the remainder of the argument at
the sitting of the court to-morrow.
The court rose at half-past 4 o'clock.

Imam to • lemmunize being iceormd "without any
Aad what was " letting" but hindranoe—delay.
earlier part of the statute enacted that the election "should
be good and effectual to all intents and effects." As •
general rule of law, where the election was to be confirmed,
it was mplete without confirmation. In the election
of members of parliament, the law did not contemplate that
Say controversy would mist; and, upon taking the oath and
W Mal, all was done. unless some new prows took pima
whisk brought the election into controversy. Bat not so
ia the present ease, in which confirmation was a
sessmary part of the proceeding, and which was
requisite to melee the election complete. Now, if the
election in the present case only speaking of that
portico of it which took place under the congd delie.—
was to stand
.good and effectual to all intents and effect,
how could anything that followed be anything more than
matter of form. In any view of the ease, therefore, confir-
mation was a merely ministerial act, and the particular
subsidiary form by which it was accompanied and accom-
plished was a matter of no moment at all. It was stated
by his learned friend (iSir Fitzroy Kelly), that the object
of the set was to cut off all connexion with the
see of Rome in the making of bishops. Be agreed
in that. But his learned friend would limit the
operation of the act to any immediate and open
connexion in the election of a bishop with the se., of
Rome. So to have confined it in these days, would be to
make it nugatory and of no avail. They knew from history
that chronologists dated the epoch of the Reformation, in this
country, from this act, At that time all the exiting bishops,
with the exception of the Archbishop of Canterbury, ware
papists, and it was necessary that all the avenues to inter-
femme with the rights of the crown in making bishops
should be guarded by this act of parliament, lie had now
to examine whether, supposing it was the duty of the eicar-
general to act on the opposition about to be made to the
confirmation of the Bishop of liereford, a mandamus would
lie at all, and whether it would lie as coming from the par-
ties opposing in this case, and for the reasons on which they
applied to the court. It was stated by Lord Holt, in the ease
of "Lucy v. the Bishop of St. David's," as reported by
Lord Raymond, that the court would not interfere with the
ecclesiastical courts while they were dealing with spiritual
matters. Now, this was a matter purely ecclesiastical, and
therefore the court ought not to interfere. But, supposing
that • mandamus did apply, could the parties in the present
mm Rieke the application. On what grounds did they ap-
pear? Had they any temporal interest, or any interest of
any kind, which smiled them to some to this court it
was mei stem, Bebe bishop were elected, he would become
• spiritual judge, and that the applicants, %to were incum-
bents in his dioee,e, had, therefore, an titer est in his election.
But his jurisdiction as • spiritual judge was not confined to
them. As a spiritual judge, the bishop interfered in wills ;
he granted the licenses to all schoolanutere of grammar
abeam Who woe there who had not an interest of this kind
la the election of a bishop ? But was any person, on that se-
count, entitled to come to the court and sib for a mandamus?
This would be contrary to all the rules and regulations by
which their lordships had been governed. In the case of the
mayor of a borough, who, from the nature of his office, was
a justice of the peace, would it be contended that all the per-
sons within hie jurisdiction could come and apply for a
mandamus?

Mr. Justice Coleridge said that case had been decided in
the city of Hcreford itself, Cofer the oid law, a person was
admitted on the express ground that he was within Lis juris-
diction.

Mr. Bill said he thought his lord►hip find that was
a different case.

Mr. Justice Coleridge—But had not the bishop a great
deal to do with the temporal interests of the incumbents.
Mr. Hill said be apprehended the interest, in the peescat
cue, was so wide, end extended to so many person., Casa
the application might come from any one. The interest wu
not so well defined, and restricted to a small number, as to
glee • right to come before the court.
Lord Denman said the cane referred to was reported in
6 Adolphus and Ellis, and it was decided on motion for a
quo warranto that it wu not a vedid objection that the party
there was not a burgess, his being subject to the juriedicdou
of the ma or giving him a sufficeent interest.
Pelt. Hill said the qe.eat ion, in thecase of a mandamus, wu
somewhat different from that of u quo warrant°.
Mr. Justice Coleridge—The come interact would do in
both cases. _

----
Mr. Hill said be would leave that part of the case and
pus on to the reasons which the parties here alleged for
coming before the court. They stated that it was well known
or justly suspected that Dr. Hampden had spoken in mau►
fest derogation of the book of common prayer, and premed-
gated docrioes repugnant to the thirty-nine articles and
that he was solemnly censured by the University of Oxford.
Before commenting on the lameness and uncertainty at the
allegations, he would observe t hat it was well worthy of remark
that in none of the books produced on the subject of confirma-
tion was unsoundness of doctrine mentioned as forming soy
ground of allegation. Any unsoundness of doctrine in seeped,
to tho ritual of the church of Rome or the expression of a
doubt of the soundness of her articles of kith would have
been heresy and a capital offence, and would not be inquired
into by an examination of this kind. He should no more
expect an inquiry of this kind in Romish times than he
should now that a bishop elect had committed murder.
There was no instance to be round in the many instances of
applications for a mandamus during the hut 200 years, of a
mandamus being granted to inquire into a criminal matter
where the piney supposed to be guilty of the offlinee was not
a party to the enquiry.
Mr. Justice Coleridge—ls not an ordinary coroner's in-
quest an instance 1
Mr. Hill—That is a ease of inquiry.
Mr. Justice Coleridge—l thought 'unmentioned inquiry.
Mr. Hill said he meant a case of inquiry leading to judg-
ment.
Here the judgment would be final. and had no affinity to
the cue of a coroner's inquest, which woo merely the preli-
minary to a future and more solemn investigation. He
thought, therefore, that uo analogy could be found at com-
mon law for this proceeding. Before the Reformation he
found no trace of a precedent fur the application. Offences
in point of doctrine were certainly ecclesiastical offences, but
they applied to all ecclesiastics and not exclusively to
bishops. lie thought that learned counsel on the oppesite
side were bolted to show that, if a mandamus issued, sine
practical result would follow. Even supposing the manda-
mus granted, what ground was there fur believing that the
parties could prove their charges before the archbishop?
In the:r affidavit they founded their application on two books,
which they said were "justly suspected" of lexity in dostrine. Why this " justly suspected" overrode the whole
charge. The books were written to show the evils of dog-
matism in theology. Could that be considered so very great
an offence ? Doctor; Johnson was allowed to have been a
staunch churchman, and he defined a dogmatist to be a
magisterial teacher, and said that dogmatism in religicu was
not unlikely to lead to bloody revolutions. As an instance
he gave Dr. Watts. (A laugh.) But Dr. Hampden was only
" suspected" of opposing dogmatism. Suppose Dr. Hampden
had disputed the dogma of the " Eight divine of kings to
govern wrong," would that be so very serious an offence.
lie contended, then, that this charge,which was the only fact,
war not fit matter to be brought before their lordships. But
the whole statement was of such a loose kind as to show that
the persons making it did nut pledge themselves to anything.
Their lordships would see that they had not brought them-
selves within any of the requisites of a mandamus. Man-
damus wes not a writ of right but of discretion se had been
decided in the cued the Commissioners of Excise...a decision
which Lord Ellenboroueh bad confirmed. In another cane,
Lord Tenterden had decided that it was a writ which the
court meld give or withhold at discretion. (9 Harwell and
Creswell, vol. 4, 8460.) Having regard to all the circum-
stances ofthe case could their lordship's imagine that any
good result would follow from granting a mandamus in thee
case ? It was admitted that the conformation, or at least the
election, could not be rescinded. What, then, would be the
utility of attaching this confirmation ? But he put tho us*
too low. What would not be the mischief of granting a writ
which must cause a vacancy in the bishopric during the life
of Dr. Hampden. Was it pretended that if this election were
voided, the crown must issue a fresh conga craire ? If it
were, could there be a more direct intend: renee with the pre-
rogative of the crown ? Surely their lordships would not take
the first step in a proceeding which might terminate in • vio-
lation of the rights of the crown. Would their lordships
have those qautions of doctrines, which, if discussed at all,
should be discussed soberly and by men of learning and dis-
ciplinee minds, discussed openly in Bow Church, and before
the multitude ? Such discussions, so conducted, seldom:ended
in the discussion of the abstract matter, but ended is steps
for abolishing the temporal establishment of the church.
A great satirist had alluded to thi', in specking of the
times, when
Oyster women locked their lee op,
And trudged away to try " No Bishop'"
Might it not also interfere with the great question of the
day—public education. Could we spare the c 4 rgy from this
for distracting discussions on points of theology. Lit all
fictions and idle forms in our religion and in law be got rid
of, but not in this way. Not by breathing into the dead
form a new life and power, but by legally and properly abo-
lishing the forms themselves. Better an unseemly fiction
than a dangerous reality.
Dr. Hayford followed on the same side. He eommeeced
by calling the attention of the court toe chapter in " Bleck-
stone's Commentaries," in which it was said that hither: is
were originally filled by tit ctinn, but that, these el,ctions
becoming tumultuous, the Emperors gradually took the
matter into their own bands by taking to themselves the
right of confirmation, and investiture with the temporalities.
This was the practice previous to the interference of the
Papal suthority. Having de.cribed the practice under the
Papal regime Blackgtone proceeded to show that in the
reign of Henry VIII. the right of election was restored to
the crown. Thus both in " Ayliffe's Parergon," and is
" Blackstone " it was shown that the right of election rt sued
originally with the crown, and was only restored in the
retire of Henry. The act of Edward VI. spoke of the elec.
tion prxisely in the same terms as those used by Sir W.
Blackstoce. It was mentioned in similar terms in the Irish
statute quoted, and thus they had the principle confirmed in
two statutes—one in England, the o'her in Ireland—and in
the writings of the most distinguished jurists. There wee
no word in the statute of Henry altering the prerogative of
the crown ; it merely related to the " manner and fathion,"
not to the principle of the thing; it lett that untouched. The
prerogative was merely rewired to its donative power, as it
644 stood previous to the Papal parenthesis, so to speak.
He would at this stage of the argument call their lnrdships'
attention to the forms new in use in the confirmetion of
deans and °hareem. be " Oeithton's Ordo .1 adici, mine," it
r war shows Misfile tie elenies aims of St. Paul's, fine**
mandate ease deem num the Wimp, and that was gincle Th
i more full than the episcopal mender as it came doweartna • •
the crown. Bat they had met bred of parties opposing
the admission et isms es essesse. The statute was as-
, plieit rsepeeft them* elestions, and showd. that the • •:' :, I.
=lre
.amdabliptilf was peremptory. The Orris (
I ham as abstract right to be heard arum. •-- lirl
r Mk Amiss, bet if the legislature had in their perticular . : ow
I am elmemit proper to override the right, and to ?twists so • , lt ill
.....4.7. j
tribunal far its ductusion, they must remain in ta• .
lei Wier parties similarly situated. The I •1: I ' 4)2e
• I quoted a long extract from " Ctmelltan's Ord'," 'l, N 2..... i

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