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

CAPE OF GOOD HOPE.

By an arrival this morning we have news from the
Cape of Good Hope to the close of November. We
extract the following important news from the Gra-
ham's Town Journal of November 20th :
DEATH OF FIVE BRITISH OFFICERS—

THE CASE OF DR. HAMPDEN.

COURT OF QUEEN'S BENCH.

[Part of the following appeared it a second edition of last
night's Express.]
The Solicitor-General maid that he should be fully content
to leave the question as it now stood, conceiving that his
learned friend had omitted no argument or point of learning
that might. be fairly urged against the application. Yet he
would venture to detain the court for a few minutes in de-
fence, es he believed, of a great principle which was now in
jeopardy; and, in maintenance of a prerogative of the
crown, which he considered amongst the first and most im-
portant. If the court should decide that the opposers in the '
case had any ground to stand upon, then would he say that
there was no longer to be any peace for the protestant esta-
blished church of this realm ; that • door had been opened '
to every 'melee of attempt upon the just prerogative of die
crown in the appointment of bishops • and that there would
not be an appointment of a bishop from this time forward
that would not be subject to some objection or another.
Such was the variety of affections and humours of men, that
every one who supposed he had an 'interest to justify would '
attend the confirmation of the archtishop:and demand to he
heard as to whether the bishop elect were a man of moral
qualities, as to what had been the habits of his life, what were
his doctrines, or anything else that might be suggested by a
restless or feverish dispoution. He would presently refer to
the statute of HenryVlll., on which the whole case turned.
In the case of Montague, Jones was sot the only person who
took share in the opposition. He was accompanied by
Humphries, who was afterwards a puliamentary colonel
and they objected to the con&matloa. Jones was called
in, and the questhin was raised whether the exceptions had
been put forward in legal Inrm, In saleroom to the report
{ *Lehi, Mew In Darter ; and flee airee, which
I was not in " Collier" or " Fuller's Church History,"
that Dr. Ryves would have received the exceptions had
they been advanced in due form, it bad been well sug-
gested by Dr. Lushington that it might have been fear of the
parliament that induced Dr. Rye's to make such en admis-
sion. The supposition as to Dr. Ryves not being a person
who would be likely to steed firm in foul weather, was
proved by the opinion of *Archbishop Usher. Then
in the case of Matthew Parker, the first protestant
archbishop, who was the subjiect of what was known
by the name of the Nag's Head confirmation. In
that case there was no acting under the first com-
mission; and in the second confirmation, when whet
was wrong in the first was amended, it was worth
mentioning that Parker was not confirmed in person
but by proxy. Dr. Montague's precedent was word;
nothing, and those were the only historical precedents.
In the present year, however, he was sorry to say,
another precedent had arisen, in the ease of the Bishop of
Manchester; and if once the opinion got abroad that oppo-
sition might be offered to the exe"cise of the crown's prero-
gative in this matter, there would not be wanting men who,
tor some cause or other, would think they were doing God
service by so interfering. He contended that the act of con-
firmation had never been looked upon as one on which any
well thinking man had a right to come forward and object,
and expect his objection to be received and considered.
True, inconveniences might, in some possible case, result,
but while the present mode of election and con-
firmation remained, the church would, he is as sure,
be content to put up with it. The right of the crown
to nominate bishops was clearly defined by statutes,
and admitted by all writers of authority. Hooker
had well argued, that, as the king had the
undoubted right to make lords temporal, so be had
the prerogative of appointing the lords epiritural,
who were also peers of the realm ; and that the power of
granting such dignities rested with the crown alone. The
whole course of proceeding laid down in the appointment of
bishops proved that this was the case, —the issue of the.
letter missive with the cong d'elare, and the appointment by
letters patent if the dean and chapter neglected cr refused
to elect. And he believed, should the result of this applica-
tion be to show that there was any doubt in the matter, it
would give more contentment to the church and to the
country if the law should be so altered ea to make the crown
appoint by letters patent in the first instance. lie proposed
to come by degrees to the statute of Henry `III.,
the circumstances which had led to its enactment, and the
manner in which its provisions had always been construed.
The statute of Edward 111., in which the cone d'ilire wee
referred to, was an evidence that the crown was then tieing
up in defence of the church and the people as against the
Pope; and by the enactments of that statute the rights of the
crown, in respect to the appointment of bishops, were asserted
as against the see of Rome. That this was the policy of the
sovereign and of parliament was evideut. Then
the 23rd of Henry VIII., for restraining the pay
ment of annetes, or first fruits to the Pope, for confirm-
ing bishops in this country, after referring to the impover-
ishment of the persons appointed, and the country by
the withdrawal of large sums to Reme on every occasion of
the appointment of a bishop or archbishop, for the confirma-
tory null, enacted a particular form of confirmation by the
archbishop, independent of the Pope; and at the end of that
act was a sort of threat—which no doubt the king and
Creamer, who advised in the matter, intended to act upon—
that if Rome ahouid continue to insist upon such payments,
all sacraments should minden° to be administered, any
papal bull to the contrary notwithstanding. It was
durante this statute that Crammer was consecrated.
The 23rd of Henry VIII. was passed for getting over other
ineumbrances which pressed on the king's prerogative and
on the laws of the land; and by that act the clergy were
prevented for the future from enacting any new constitutions,
canons or ordinances, without the king's permission ; and it en-
acted, also, that no appeals to Rome should henceforth be per-
mitted ; and the 7th section of that act provided that such ex-
isting ordinances, canons, &c., as were not opposed to the laws
of the realm, or the king's prerogative should continue in
force. Was not this a conclusive proof of the intention of
parliament and the crown to be no longer bound by
the canon law, end that the king's prorogation should over-
ride it in matters of this kind Then came the statute ddth of
Henry VIII., cap. 20, with which the court had to deal. It
would be well here to inquire what had been the right of
confirmation as averted by the Popes all over the Christian
world. Of whatever value confirmation was to the Pope, it
was equally valuable to the king. Either might dispense
with it, require it, or lay down the form in which it should
be carried on. Vanespin, a professor of ecclesiastical law, in
the Netherlands, at the beginning of the last century, said
that the rite of confirmation by the Pope did not exist alike
in all countries. The learned gentleman went on to con-
tend that whatever power the pope possessed as to the ap-
pointment of bishop! was now 'trod in the crown. The
pope, it appeared, might dispense with confirmation, or call
for it—so might the Queen. The pope's discretion, in fact,
was now the crown's discretion.

Mr. Justice Coler dge : Then the crown might din
pease with any of the requisites for a bishop—age, for in-
.

The Solett:it-General could not suppose that the
crown would do an act which was oppposed to the good of the
church or of the realm ; the Queen's discretion for the good of
the country was (quilt° the Pope's discretion fur the scrod of
the church or of the realm, the queen'sdiscretion for the good
of the country was equal to the Pope's discretion for the good
of ehristerdom. He contended that the crown, in its discre-
tion, was not bound at all, it being always inferred that the
King would do nothing te abuse the trust reposed in him.
It was enacted by the statute to which he was referring,
that if the dean and chapter refused to let on congi d'ilire
the crown should appoint by letters patent. What, then, was
the importance which, at the passing of that enactment,
attached to the rite of confirmation ? The 26th of Henry
VIII , cap. 14, for the nomination of suffragan bishops,
made no mention of confirmation. The whole matter
was left with the archbishops, who were, like the king,
in the appointment of bishops supposed to act in accordance
with the interest of the church and the country, and notwith-
standing the importance of tke duties of those suffragan
bishops no confirmation was needed. He held that this
was an additional proof that in the view of parliament
confirmation was no material part of the appointment. It
was supposed in the case of the 'tarragon bishops that the
archbishop would present to the crown persons who, from
their learning their piety and conduct were fitted for the
office, in the same way as it was supposed the crown would
appoint to vacant bishoprics. The 31st Henry VIII., cap.
9, was another act for enabling the king to do
without confirmation altogether, and to make bishops as he
pleased. He would now refer to the the Irish statute of
Blizsbeth. The statute of Edward pronounced upon the
congi d'aire ; he would not enter into the question where-
fore ; but in respect of Elizabeth, she revived the statute of
Henry VIII., with all its enactments. But why she
did this in the first year of h-r reign, and wby in
the second abe enacted the existing law with respect to
Ireland, he could not say. But this was clear, that the
latter statute gave the crown the full power to
appoint such persona as it might think fit. This
act gave the same power to the crown in the nomina-
tion of bishops ss if election bad ensued under a conge
d'aire, and made all the appointments donative.
What was this but a parliamentary avowal of the
efficacy of the appointments made by archbishops. Then
again, under the same act the 'archbishop was autho-
rised to confirm and endue, by benedictions and customary
forms, the bishop elect, without reference to foreign bulls or
Powers, and this was enjoined on him under the penalty
of a prmmunire. Now premunire wee not alone con-
fiord to ecclesiastical things, for in " Comyn's Di-
gest it was expressly so laid down in letter B, 3ed
Institute, 120, 123. It was clearly shown that the powers of
the court of Rome had no reference to many other eases
of preemunire. By letters patent, issued under the au-
thority of the crown, the dean and chapter were allowed to
elect, under a mice such a person for the bishop
as might appear to them to be devoted to God, and lateep to
be useful to the crown and to the kingdom. By the Where
missive it was said that, by prinaely Beat the crown
moved to choose a fit weer, and, considering the virtastbZ
gravity of Dr. Hampden, it had been pleased to reammemil
him to be chosen. Be contended that any coatravesnios
of this recommendation and exercise of the, pord pus-

rogati"ol war it Slid that theprerags-
tire bad been exerted In farrier of a divine of unsound
doctliaor. Mill he would alarm that the prerogalive erm
duly exercised, and that the nomiontion must stand en-
impeached. Bach a mac, so-named, the dean and Gimped+
had elected. Could anything tow* that election ? He said,
nothing could. The words of the statute were exact
ist a Isla be ever so unfit in the eyes of ease of the