The Express.
London, England, 1848-01-26 00:00:00

SECOND EDITIO

DR. HAMPDEN'S CASE.
•
COURT OF QUEEN'S SENCIL—Tms Ds
(Ctettiwered trews ear first aition.j
Mr Bechtel appeeirmied that, as far ae the case Mae
within the of this gout; tisWd limply upon WA
ground thus, whoa Ira lahrior emit had tansed reties aere_yi
and mired to btu thee, this mart hod power to Oral
that Moire root to admit the parties to
heariag, . It alterable, than would be a want and,
eves a Wel &said of NOW% web as could 'not be esti;
eipated la s where the rights of the subject as
tareadly AR the eppeueats claimed at the Muir
ed the wort was to bo heard. They asked fors:V:lh
re for soy purer et ; and the court ipia,
torted, herniae to =lmo meek justice to be to.
Me dints N Oar doessaded. The cue weacmoultmo as
interim court hut mieraken the law ; and it wmgaite Nape-
tent for their lordships to interfere to compel the psthrinuro
of their duty by the °Seers or representatives et the sub-
bishop If, as was Awn in the cues cited, a mandamus
would Re in respect to a prohibition to en ecclesiastical
ewe" the mere_ of proceeding would be equally. good
to eau* the pernurmanee of a duty. His friend (Mr.
Weddiaglany bed Toaerday urged that the court would
act Usurer* is rumpus to ecclesiastical law ; he admitted
that to be se, but the case before the court related wholly to
the amstructies of statute law, and therein their lordships
bed undoubted jurisdiction. The Queen's Bench was a court
of anivensl jurisdiction, in so tar as the construction
to be pat upon statnte law was concerned, as a branch of
the original court of hearing. It had been treated and con-
sidered by the great law authorities, Bacon, Coke, Holt,
sad others, as having co-extensive authority with the Court
of Arches, and over the archbishop. Passing, therefore,
over the question of jurisdiction, he would put it to their'
lordships
.whether the Court of Arches, as a court of home
ins, was justified in turning the opponents away, and in re-
(wing to allow them to appear. It would be necessary le
consider the state of the law previous to the
statute Henry VIII.. namely, whether the arab-
bishop was empowered to ace, or whether confirma-
tion was • mere mockery. The church had always
deemed the rite to be absolutely necessary, and it was held
to be founded on Scripture, for St. Paul ( Timothy, 3rd
ehspter), and other sacred writer+, stated and defined
the ditprent qualifications of bishops ; and, amongst
the rest, that the bishop must be blameless, which, he (Mr.
Baddely) interpreted, meant not liable to any charge. In the
Epistle to Titus, the apostle assumed authority in all things
in the church, especially as to appointing, sr choosing, or
laying hands son and consecrating bishops ; and in his ex-
hortation to Titus, chap. i., verse 6 and subsequent verses,
the qualities and fitness of bishops and other officers of the
church were distinctly laid down by St. Paul, including the
expressions already refaced to. It thus was clear, from the
authority of Scripture, that the laying on of hands must
be preceded by inquiry into the fitness of the candidate. The
learned counsel quoted a canon of the First Council of Nice,
which decreed that bishops should be confirmed only by the
metropolitan, the election being vested in the nearest snoops,
" with the assent of all present" at the election ; and another
alma, decreeing that any bishop ordained such without the
consent of the metropolitan, was to be regarded as no bishop.
A farther canon (the 12th of the Council of Laodicea) fully
confirmed the authority of the metropolitan in this matter,
and deputed to him power to inquire into the life and
character of the bishop elect, and to act accordingly.
A similar decree was passed by the Fourth Council of Carthage
(canon 1), setting forth in detail the qualities which the
metropolitan was to require in e Bch bishop elect before he
gave him confirmation, and without which qualities he
might refuse him such confirmation. The learned counsel
referred to other decrees, passed by the Councils of Chalcedon,
Aries, &c., all rendering confirmation of the metropolitan
essential to the ordination of any priest as bishop.—Mr.
Baddeley next referred to various canons set forth in the
" Decreturn," and to the glosses upon them, u
confirmatory of his argument, and contended that
this rule of civil law which called upon the
metropolitan to iustitute an inquiry into the character of
each bishop-elect, prior to coafirmation had been recognised
in England and elsewhere. Arvin, in his treatise, "Da
Antique Retinae Discipline," gave the full weight of his
authority to the principle subjecting bishops elect to strict
inquiry, as to their life and conduct, on the part of the me.
tropolitap—an inquiry based, as Fleury further developed,
upon evidence adduced by all such parties (lay or spiritual)
as are prepared with any charges in opposition, weighed
against such evidence as may be produced in contravention
of such opposition. The learned counsel then applied himself
to show that this ancient rule of canon law had been from the
first admitted into this country, as part dm r ecclesiastical
law, and acted upon accordingly. As to the force of the
canon law in England, Mr. Baddeley quoted the opinion
advanced by Sir W. Follett, before the House of Lords,
strongly declaratory of the principle that the an law is
valid in this country, as part of an ectleeiastical law, except
where it runs counter to the common law of the land. This
was the view also of Sir Matthew Hale and of Sir William
Blackstone.
The Lord Chief Justice reminded the learned counsel that,
on the other hand ,the late Sir Nicholas Tindal had decidedly
laid it down that the canon law was not admissible as part of
the ecclesiastical law, except when formally proved and
adopted as such.
Mr. Baddeley proceeded to quote from Lynewode's
glow+, to show that, contrary to the view of the other
side, confirmation by the metropolitan, dependent upon pro-
' vious inquiry as to conduct and character, was requisite in
the case of a bishop, as well as in that of an infenor digni-
tary. This principle was distinctly laid down by John
d'Atho, in the dingo( Henry I it. The learned counsel then
quoted Walton, who, is his " Anglia Sacra," p. 316, gives
the cue of a bishop elect, in 1277, who was rejected by the
metropolitan, on the ground of having been a groom plural-
ist. The King persisting in the election, the question was
referred to the Pope, who quashed the election. The same
author was quoted as to several similar cases, in which the
archbishop had refused to abide by the election of the
sovereign, and had set slide the bishop chose, by him, on
the ground of the personal demerits of the party—an objec-
tion to the formal election further occurring in several in-
stances. In one ease more especially,that of the election to the
bishopric of Ely, the right of the Archbishop of Canterbury
enamors electionon was laid down in the most distinct terms.
Many more huthotities were to be found In tbet book, which
was one of great authority. It clearly showed that persona
eketi meant not the individual himself only, but that the
archbishop exercised the right, according to the canon
law, to examine and investigate the character, qualities, and
acquirements of the person about to be confirmed. So far
beck as the time of Edward 111., in the 41st vol. of the Year
Books, it appeared the Pope exercised the right to examine
the candidate before confirmation ; and it appeared he might
refuse confirmation for non-ability, or from other causes. An
act or ordinance, to be found in the 4th vol. of the rolls of
parliament, le the reign of Henry the V , recited that the
King, not knowing. bow long the cathedrals of this coun-
try should be deprived of bishops, or left in the state of
destitution in which they then were, in consequence of the
difficulty of obtaining confirmation, commanded the metro-
politans to confirm. That document showed that, in
the absence of the Pope, the metropelitens had
the right to confirm, and it was valuable, because
it showed that confirmation was deemed so neces-
sary and eseential, at that early period, that the church
was rendered destitute, owing to the difficulty of obtaining it.
; That statute was followed by proclamations to carry it into
effect. It was enacted in 1415, and in the year following a
writ was issued for the confirmation of a bishop. That
; writ was directed to the Archbishop of Canterbury, who
was commanded to proceed with the confirmation. The
i writ so issued, in pursuance of the statute of Henry V..
required, pretty much in the same terms as at present, that
confirmation should be proceeded with without delay, show-
ing distinctly that confirmation was previous to consecration,
and was always looked upon as essential. But he
was at a loss to know why a more stringent con-
struction should be put upon the act of Henry
VIII. than upon that of Henry V., and the various writs
founded upon it. The term " confirmation" bad, previous to
the Reformation, a recognised legal meseing, and he duties
and rights of the archbishop respecting it were ascertained.
In a book of considerable authority," Martin upon the Rituals
of the Church "
Mr. Justice Coleridge : What is the date of that book ?
Mr. Baddeley : It was published about two centuries ago.
' The learned gentleman read several outages, to show that
the practice of examining by the metropolitan was the efts-
' bushed rule of the church from the earliest periods.
Confirmation was prior to the consecration, and was solely at
the discretion of the metropolitan. The passages read showed
the prate ice as to examination and confirmation which prevailed
in the Western Church prior to the Reformation, and dig
tinctly proved that such practice prevailed until the statute
of Henry VIII., which was sole.), directed against Rome
and the interference of the Pope. Looking at the title of
that act, which was an act for the nonpayment of annates,
or first fruits, to the Pope, it was plain it was
altogether directed against the influence of Rome. The
preamble was extremely strong, for it was made up of a
statute to restrain and control the papal power.
There were many authorities— amongst others " Bacon's
Abridgment," and " Plowden,"—which showed that the
preamble of a statute was most material in construing a sta-
tute. After commenting upon several sections of the 25th
Henry VIII., the learned counsel submitted that almost the
Pole object of that statute we to restrain the Pope's in-
fluence, and not to alter the then existing forms and regula-
tions of the church of England. Another object was that
certain things previously done in the government of the
church in this country should not thereafter he done, so
that the inflence of the court of Rome should be restricted.
The general and indeed sole object of the act was to check
the power of the Pope, and was not intended to inter-
fere with or modify anything else which did not refer to the
authority of the court of Rome. There were good grounds
for alleging that the penalties of prwmunire were not in
force as created by the 25th Henry VIII., c. 20. That
statute was repealed in the reign of Philip and Mayr, and
re-enacted by Elizabeth, with an exception with reference to
the penalties for pnemunire ; which showed that those
penalties were now at an end. Lord Bacon, in • treatise,
enumerated the several offences and cases of prannunire in
force in his time. He manifestly had the statute of Henry
VIII. under his consideration at the time he published his
treatise, for he retained the provisions which were in force
with reference to the eoart of Rome, but be altogether
omitted all reference to the penalties of prmmunire, to be in.
awed by the dean and chapter, hither refuse to elect.
Mr. Justice Coleridge : How do you distinguish the ope-
ration of the proviso in the one wie and in the other ?
Mr. Baddeley:. The penalties wife repealed, except with
reference to the court of Rome, and chat appeared to have