The Express.
London, England, 1848-01-28 00:00:00

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ythereibestbseesit,malps sad easseasties.

ukTidrirwt ......"'''weseemeassimithat dime hems w—ereeserely
or salaisheriel
end that W seekblehep tweeesesfelled to inabeni, Infinite '
te the pomade. of gesmanniee. What maths actual proem ef
emlernaties, m it had misted fir the last 300 y ews The
dbed heisted that, however unfit the
raftbishep wee hoard to *swam his la
twisty days. Now, if Met wee theses.
liermaim of the set, it 111111 seiatived by the beat
et
omemeratioa u contabed in OW Book of Ceram
Prayer. Is that form Mere were many qesedess pet by
tesehhiebsp to the bishop sleet. One of them questions
Maim to the point of doetrias as& twoldw, and the
teal qualm wee, the fitness of the isilviksai as to wand-
mem destrine sad teaehise, from that question the
nut @Misty the wart that this also was
areerAtbierae"ralead mot be stark its of the form of 000/401ffle
Vise, as enstaked is the Beek of CARMlntill Prayer. His
seised Mid must show, in eider to weaned is
his view, that the 0111111111.1111 W was else ally ne of
Ann ; aad that at the oseeseralka the duty of doe sok I
bishop was in that rooms else may sidelk. This would
be wens then a mockery, —it would be es impiety. whit:hit
vas taawarthy to impute to the legislators by which the
ratan had bees pared inn • law. It had, however,
hoes said that this WO as Stash en the tire of the
crown ; but after what bad been by his learned
friends who had preeeded hies, it was scarcely necessary for
kin to enter upon the souskiseatiou of that question. He
admitted that she crown bed the right to nominate to the
dean and charter, bat yeas there anything indecorous to the
sown In &Dyke that the church must afterwards
111Th11Millt into We knees a the person nominated ?
Ty this there was SO irreverence exhibited towards
the crown. He. is these OMB the crown might he deceived
Mei • minister of the crown be mistakes, and what security
Weald dam be to the nation that, in the event of a sovereign
of the tempts et James 11. =tit: throne, the bench of
he
bishop' should not occupied Roman COtholice Such
might be the ease if the oo put upon the statute by
the other side was allowed to prevail. Rewire-
beaded that the court, looking to the divine et
the form of oonsecratioa—looking to its existence as
bag a period of time—looking to the authorities, ionise
and English—would pause, before it interfered with and
destroyed this solemn and important ceremony and
big on the part of the church. The statute Ca.st
been acted upon in the reign of Edward VI., or
that of Mazy, when the Roman church was dominant;
bat it came into full o • and practice in the
Ant year of the reign Queen Elisabeth, and had so
continued until the nt time. By
i
it had been revived, ea the *intim of Arch
Parker, at a time when the attention of the whole conrieny
was devoted to the rejection of the interference of the=
every step and stage of the proceedings, which his
friends now said were useless forms, were taken se they bed
been in the case now before the court. From Bestehen'. work
it IMO AVM that every stage of the proosedings—the ems-
mination as to fitness—the citation of opposers—the ex-
=nation, on oath, of witnesses to prove the Items of
the bishop—end all was done which he (Sir F. Kelly ) caw
fiended should have been followed up in the mom sow
There seat; z:ver been en instance in which ..traise
the form had been abrogated. The books Fenn se owe
instance, and he defied his learned friends to produce sail
each precedent. With regard to the elution whether the
citation of opposers under the law, • part of the duty of
the archbishop, all history confirmed that such was the law
and the usage.. The sestet preserved thaw forms unaltered,
instead of dispensing with them and setting them aside ;
and, this being the sue of the argument on his side, it
was only by difficulties as to form that the other
side had been able to raise • shadow of an argu-
ment. It was urged that this court had not the authority to
interfere, inasmuch as the court of the archbishop had no
jurisclictioa to examine witness's, and because the bishop elect
was not a party. It weld not be seriously contended that
so high a court es the archbishop's could not cite and ex-
amine witnesses—and the bishop elect might have been cited
to appear, according to the practice of the ecclesiastical
wart', if the libel which had been prepared had been re.
caned, or, at any rate, the dean and chapter of Hereford
would have been so cited. He did not exactly knoW how
that might be, but certainly Dr. Hampden would have
been able to have answered the allegations in
some way, and have proved his fitness for the office. In
Archbishop Parker's case witnesses had been examined on
oath, and he could not, doubt that the same might have been
done in the ease now under consideration. If thin were any
doubts on the subject of the authority of the archbishop, it
was most essential that they should be settled. It appeared
to him, however, that there were none. As to the mode in
which the archbishop was to proceed in the ease of a bishop
sleet charged with an offence, this, he appnhended, was for
the archbishop himself to determine, and there was no
doubt he could entertain the subject, and examine witnesses
in his court of audience. The learned gentlemen cited coma
to show that the archbishop in his judicial character having
the power of citing witnesses and administering
administer
justice. As to the objections which had been made to the sp-
ina mandamus, he conceived they were unsupported
r;eatiorgname nt. The mandamus would not interfere with the prac-
tice Otte opirittil court, but it would be simply the exercise
of the prerogative inherent in the euperior court of compelling
the inferior court to administer justice when it refused to do
so. In the fuss of the " King v. The Justices of Kent"
(a similar nee in point of general principle, where the jus-
tiees had refused to proceed in a matter, and a mandamus
eau applied for to compel them to proceed), Lord
Ellenborough said : "If the justices had rejected the
application made to them in the exercise of the
Miamian vested in them by the legislature, this court would
not interfere ; but if they rejected it on the ground that they
had no power to grant it, the court would interfere so far as
to set the real power of the magistrates in motion. If the
magistrates had beard the parties, and had determi tha
ned tby
the law and usage of their court those parties could not be
heard, I have doubts whether this court could have lasted a
mandamus." The learned counsel then dwelt upon
the essential necessity of the head of the church
in every district being of unimpeachable orthodoxy,
and concluded with an earnest appeal to their lordships ma
turely to weigh the high, the unspeakable, importance of the
question now submitted to them. It had been complained
by the solicitor-general that those who instituted these pro-
ceedings tended—he did not say sought—to disturb the
peace of the church. Let it be borne in mind that the peace
of the church might be more disturbed by the appoint-
ment to its higher dignities of one who leboured under •
deep and wide-spread suspicion of unsoundness of doc-
trine and teaching, than by an honest and decorous
eppositioa to such an appointment. Justice, the people,
and after times would decide, rather than their lord-
ships, which of the now contending parties —if they
eould be called contending—were most obnoxious to the
imputation of disturbing the peace of the church. He would
now sit down, concluded the learned gentleman, satisfied
that their lordships would deal with this great and solemn
question upon those high principles which had ever actuated
them and -their predecessors, and which the people of this
country looked for, in the decision of a question involving
ell that was dear end sacred to them.
The Attorney-General said, be now roes to exercise his
prerogative of reply.
Lord Denman said, he did not call to mind any precedent
for such a course es a matter of right.
The Attorne-General said, neither did he remember any
precedent ; but the absence of a precedent arose from the
absence of any case in which, as here, the name of the crown
WY called in aid to strike a blow at the prerogative of the
the crown. There was a ease, " Rowse. Brenton," where in
a matter relating to the Duchy mines in Cornwall, Sir
Charles Wetherall's claim to be heard in reply, as Attorney-
General, was refused by the oourt,but this was because it did
not appear that the crown was directly interested, the Attor-
ney-General not having, as he (Sir John Jervis), had here
done, certified that the crown was so interested.
Lord Denman said, his impression was, that in the case re-
ferred to, Sir Charles Wetherell had certified to that effect.
The Attorney• General admitted that, on ucollectionW Sir
Charles Wetherell had certifie in the ease, but the heel
there operated as no preemie ;tithe whole character of the
Noss bang entirely distinct
Lord Denman said he had some considerable doubt as to
the Attorney-General's right to a reply. He considered that
in all these cues it wu entirely within the discretion of the
scout to my whether or no a reply should be allowed, that
dead= turning upon the mune whid the orpiment. had
so far taken.
Sir Finny Kelly mused the claim of the -
General to a reply, on the steaad dot the genetwght
net to increase or extend lie peemptive et the emery
which would be the effect of ganef; ellseledem to the
in the absence of any stated Piewilseit. If a
be alleged, the court, of econfee, woad telt. Is the
very use of " Rowe e. Brenleles"lkt Used, Leek Praturfika
had distinctly declared those Amso Wmg se presides& kr the
Attorney-General's right. el reply, the ewe weld act
admit the claim as aught, be* week let the ease take he
Ordinary course. The learsid seems' proceededto contend
that, even were an absolute madame gouged la this case, it
would not affect the proresstive of the mown ; it wee
Imply a mandamus re-garbs ea inferior court to hear
urban parties whom it had unjustly mimed te hew. Be
farther referred (Clarke end Finnelly, I, p. ISO) to a ewe be-
ton the Hoke of Lords, where their krda* bad abier
lately rejected the claim of the Attorney-General to be
heard in reply. Is the O'Connell case he had resisted a limb
kr claim en the part of the Attorney4eneral,but no dui-
eon was come to, Sir Win. Follett waiving his claim.
Lord Denman was very jealous of the idea of any vested
right in counsel to a reply in these noes. He would repeat,
that hi conceived it to be altogether a matter of discrellon
with the court to say whether a reply should be allowed ;
that the court had the clear right to prescribe the course
which it deemed most convenient on the particular occasion.
Oa the present occasion, it was the opinion of the court that
it would be convenient to hear the4pttoezzGeneral in reply.
The Attorney-Genera, while smelling what
he considered to be a right of the counsel, fielding the office
which he had the honour unworthily to fill, thanked the
nun for the indulgence accorded. He then proceeded
to contend that the arguments adduced to show
that the rule moved for iambs& no infringement
the prerogative of the crown, entirely failed in
their object, and that the authority of the statute
en which he and hie leaned friends relied had been fuly
viadieated by the speeches and citations of the counsel on
the other side themselves. He next advareed to the inis-
"Menus disorepumies which might be established within
`si bosom of the chunk—from the consequences of pantie.
Aiahaandentes and of thus an openisor for the
stroduation alltree'eeparate reetti.7orthodoxy in the three
ecoledastieal jurisdictionsof Centerbury. of Trek, and *t he-
ltd. How was thadificulty to be got Ada? In the pkimet
most coaclusive way, and pointed at
ey the
making the temporal head of the shuck* piety=
and leaving the matter to bejlealt with byre:Wire,
eadjeeakingage e. _the ministers of the crown im
He mold omega* no metre awe eiteleel

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