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

if pairy into fitness might be postponed from day to day
without any prejudice to the bishop. But the ease of • per-
ms who was deemed lit for • bishop by. the minister or
the crown, but whom moral or immoral habits
were unknowo to the nominating parties, was it not near
glary that an inquiry into his them should be instituted, as
in the case, br instance, of a person who had raided abroad.
Again, suppose the crown was to nominate a layman to the
office of bishop—for that, according to the argument an the
other side, was the intent of the kingly power is this re-
spect—would not there be thus installed into the office of
judge over the doctrine of the clergy of
have
•
whole diocese • person who mioht not ever
subscribed to the Thirty.nine Articles t If • prime minister
were not well affected towards the principles of the Refer-
mstion, he would, according to the argument of the ether
side, have the power of p:acine on the bench of bishve
men inclined towards the Roman Catholic faith ; and if he
remained, as many prime ministers had done, a long time in
office, he might render the majority of the bishops • body
hostile to the doctrines of the church of England. The arch
bishop, therefore, according to this rule, would be reduced
to a mere registrar of the nomination of the crown or the
prime minister; and however unsound might be the doctrines
or immoral the habits of the bishop elect, no power existed
in the church witsreby confirmation and consecration could
be refused. With these observations, and trusting to the
equitable jurisdiction of the court in a ease so important to
the interests of the church, he would leave the case in their
lordship.' hands.
Left speaking.—The conclusion of the segfoteot will be
published in a Second Edition.
_ _ _

SECOND EDITION.

DR. HAMPDEN'S CASE.

COURT OF QUEEN'S BENCH.—This DAY.
(Continua from our first edition.)
CONCLUSION OF THE ARGUMENT.
Sir F. Kelly solicited the indulgence of the court for a
short time, whilst he occupied its attention in the present
ease. Nothing Ism than the immense importance of the
ease would have induced him to say one word ; but that
importance was unspeakable, and rendered it imperative on
him to be certain that the whole case was before their lord-
ship., in the firm belief that they would, following the ex-
ample of the wisest and moat learned of their predeceesormtake
measures to put the case into such a shape as. to emelt!' hi
be carried before the highest judicial authority is the kingthwa.
It had been contended that the case involved the prergs.
tion of the crown, but did it nut also involve the religious
welfare of the whole community. Whet was the reel nature
of the question ? The Attorney-General had congaed
it
solely to the prerogative. He (Sir F. Kelly), denied this to
be its basis. Hu nod hie learned friend had admitted
the whole queatioe, as to the undeniable prerogative
of the crown, to nominate to a bishopric; but there
was a wide distinction between theexercise of the prerogative
of nominating • bishop and the ecclesiastical ceremonials
consequent upon that nomination. The one teas done in a
temporal capacity, the other was • purely
.spintual act, only
to be performed by ecclesiastical authority. The right of
the archbishop to examine in an ecclesiastical sense the fat-
ness of the candidate was hot tensible, and could not be
disputed. This right on the part of the archbishop
bait been exercised from the time of the apostles until
the hour at which ho addr.s.rd the court. It be-
gan ie the time of St. Paul, as was evident in
his Epistle to Titus, and it had been excrcocd by the church
in all times, and by all sects and divisions of christians. from
St. Paul's era down to the present day. And yet this solemn
proceeding was to he treated as • mere mockery and a form.
Ee (Sir F. Kelly) could not so consider it, for if the ceremony
were • form, he was at a loss to conceive how any other part
of the ceremony or proceeding of nominating a bishop
could be other than a form. To admit such an argument
would be equivalent to saying that every oath that had been
administered on such occasions on the Gospels, by all the
kings and prelates from the time of archbishop Parker to the
present day, were mere forms, and not bindlne. To such an
argument, which! he would almost pay was impious, he
could not for a moment believe the court would assent
He was firmly convinced: that he should prove to the court,
that the statute of Henry VIII. did, whilst it con-
ferred the nomination of 'bishops on the crown, except
front all interfere nce the ceremony of couflrmation, leas.ng
that as it was her,re, with the exception of prohibiting the
Pope or any foreign power from having any authority to
cootirm or consecrate ecclesiastics or bishops within the
realm. The history of the nominationtof bishops, as laid
down on the other side, was correct, save that it
was, in his belief, originally vested in the people. In procf as
of time it became vested in the Pope, and when the
power of nomination reverted to the crown, it became so
under the same stipulations that the Pope had possessed it.
Now, with respect to confirmation, there was no authority
to show that this ceremony had ever taken place, without
subjecting the individual to aaaaa mination. In the Scriptures
themselves were found the origin of this proceeding. St. Paul
referred Titus to his reasons for leaving him in Crete,riamely,
in order to examine into the fitness of the persons appointed to
be bishops, and to be certain they were such as held fast
the faith that was confided to the immediate followers of
Christ; and ytt, a ceremony which hail been in force for
seventeen centuries was to be held and deemed to be • mere
mockery, which might be dispensed with at pleasure.
All the foreign jurists who had written on the
canon law expressly set forth the doctrine that confir-
mation was essential ; and the English jurists who had fol-
lowed those writers, and who had occasion to write on the
subject of confirmation, had adopted their expressions and
(verb &etc' their views. In Germany, where bishops were
ales :temporal princes, confirmation was always an eccle-
siastical ceremony, in whomsoever the power of appointment
might be. The only exception to this rule was laid down
by Lancellotua, but that exception was made by a writer
who lived under the jurisdiction of the Pope, who had, as
the head of the church, the undoubted; power to appoint
without confirmation. So that the very exception relied on
by the other aide only tended to corroborate his (Sir F. Kelly's)
doctrine, that confirmation by some high ecclesiastic's' autho-
rity wise an indispentiable sequitur to thi nomination of a bishop
by tie crown. How did it happen that, whenever the sub-
ject of confirmation was referred to in the law hooks, it was
always found to be treated by the judges as part of the law
and usage of England in exactly the same way as it was
considered in foreign countries? He turned now to the
statute and the great question now to be determined, viz.,
whether the statute altered the process of confirmation, as
established by both foreign and English authorities, or whe-
ther it was riot confined to the prevention of the interference
of the Pope. He did not rely upon the title of the act, which
had been so much criticised in the course of the argument,
but he referred at once to the 3rd section,which was said strictly
to require confirmation under the penalties of prmmunire.
By the direct terms of that statute the proems of confirma-
tion was to Temkin as before the act, saving and excepting
the interference of the Pope. The mealtime of the section
was, that all the forms of election and confirmation and con-
secration were to remain the same as heretofore, with the
exception that no payment should be made to the Pope for
bulls, nor should the Pope in any way interfere. On the part
of the promoters of this case,he (Sir F.Kelly) submitted that,
under the statute,there must be confirmation and consecration,
according to the usages of the Christian church; on the other
bandit se as contended that these forms were merely ministerial
and that the archbishop was compelled to confoi m,or be liable
to the penaltie- of prmmunire. What was the actual process of
confirmation, as it had existed for the last 300 years ? The
Attorney-Oeneral had insisted that, however unfit the
bishop elect, the archbishop was bound to confirm him in
his office within twenty days. Now, if that was the con-
struction of the act, it was negatived by the form
of consecration as contained in the Book of Common
Prayer. In that form their are many questions put by
the archbishop to the bishop elect. One of those questions
had reference to the point of doctrine and teaching, and the
real question was, the fitness of the individual as to sound-
ness of doctrine and teaching, and from that question the
Attorney-General must satisfy the court that this also was
a mere form, and must be struck out of the form of consecra-
tion, as contained in the Book of Common Prayer. His
learned friend must show, in order to succeed in
his view, that the ceremony was also only one of
form ; and that at the consecration the duty of the areh-
bishop was in that process also only ministerial. This would
be worse than a mockery,—it would be an impiety, which it
war unworthy to impute to the legislature by which the
statute had been pawed into a law. It had however been
paid that thin was an attack on the prerogative of the crown;
but after what had been said it was scarcely necessary for
him to enter upon the considerations of that question. He
admitted that the crown had the right to nominate to the
dean arid charter, but was there anything indecorous to the
crown to say that the church must afterwards
• examine into the fitness of the persona nominated.
In this there was no irreverence exhibited towards
the crown. Even in these times the crown might be deceived
and a minister of the crown be mistaken, and what security
would there be to the nation that, in the event of a sovereign
of the tenets of James 11. filling the throne, the bench of
bishops should not be occupied by Roman Catholic,. Such
might be the case if the construction put upon the statute by
the other side was allowed to prevail. He (Sir F.
Kelly)apprekended that the court, locking to the divine origin
of the form of sonsecration—looking to its existence for so
long a period of time—looking to the authorities, foreign
and English—would pause, before it interfered with and
destroyed this solem and important ceremony and proceed-
ing on the part of the church. The statute had not
been acted upon in the reign of Edward VI., or
that of Mary, when the Roman church was dominant;
but it came into full operation and practice in the
first. year of the reign of Queen Elizabeth, and had so
continued until the prevent time. By Elizabeth
it had been revived, and on the election of Archbishop
Parker, at a time when the attention of the whole country
was devoted to the rejection of the interference of the Pope,
every step and stage of the proceedings, which the other
side now pay was a useimis foim, was taken as they had bees
in the ease now b fore the court. From Bramhall's work
it was sbswn that every stage of the proceedings—the ass
=Tifton as to fitness—the citation of opposers—their ex-
amination on oath—andall was done which he (Sir F. Kelly)
contended should have been followed up in the present cam.
There has never been an instance in which any portion of
the form hid been abrogated. The books presented no amok
instance, and he defied his learned friends to produce say
such precedent. With regard to the question whether tke
citation of opposers was, tinder the law, a part of the duty a
the archbishop, all history confirms that such was the hw
and the usage. The statute preserved these forms unaltered,
instead of dispensing with them and setting them aside ;
And, this being the state of the argument on his side, It
was only by difficulties as to form that the other
aids had .;bsen able to raise a shadow of an up-