The Express.
London, England, 1848-02-01 00:00:00

•
THE EXPRESS, TUESDAY EVENING, FEBRUARY 1, 1848.

weedy giesiestrer )erm, bath.htehileve
wok- gine enemies
at the caw the ease of
o ail butthe neatest( wad ee goat by the
,icuironsoo, who proceeded on his eamereellen tithe sta-
tute. This was eat the case of the preseentitia at ablehop
sleet for alleged offences within tha ageesejeß two yeses but
steeple a claim by "data Peetrei -te-b; bard to
certain objectionsthee had to the bishop sleet. Eis
mind had not been made up on this veep inse
portant subject without maturely weighing all the
difficulties by which it was surrounded, and more eapeeielly '
the question es to the power of the court to grant the re-.l
qutred mandamus. His opinion was, that it was a ease
peculiarly fit to be put in such • shape as to enable the un-
succusful parties here to obtain a writ of error. He was
quite sensible of the agitation of men's minds on the subject,
and of the inconvenience of keeping the question undecided;
but still he thought these inconveniences less than the in-
oonveniones of not granting the mandamus. He had not
gone into that part of the allegations which disclosed :the
nature of the objections to the bishop elect, for he regarded
the miscarriage simply in the point of view of the refusal of
the vicar-general to bear parties make objections, whatever
the objections were. The case was wholly independent of
the question, who the person war that was bishop elect, or
what the objections were to him. It was a ease applicable
to any bishop elect.
The Lord Chief Justice said ho had no doubt that in this
011411 the mandamus sought for could not, and ought not, to
lame • and, even were he at all in doubt on the subject, he
should think it better not to issue the writ than to run the
risk of abridging the clear and established preroga-
tive of the crown in a matter of such vital im-
portance, still more to the best interests of the
people than of the Crown itself. He would admit that there
seemed a prima facie case of wrong, where, after citation
issued for persons to appear io opposition, and after procla-
mation Zo the same effect, peewee so appearing were pro-
hibited from stating their opposition. The proceedings by
which opposers were invited to appear, and then had their
mouths stopped at the very outset, and were excluded the
Court, clearly reflected no honour on those who first insti-
tuted the form. It was an absurdity only exceeded by the
farther proceeding of declaring those very persons co e
tuna:taus for non.appearance who had actually ap.
and, claiming to be heard, were not heard.
Inediese things were anomalies there could be no doubt ;
but they did not constitute a case for setting aside a clear end
established rule, founded on a distinct act of parliament, and
settled by invariable practice. By whose authority had these
proceedings been sanctioned in the present instance ? In the
Ent piece, of that of a prelate entitled to the unbounded
respect and confidence of all men, of that of the venerable
Archbishop of Canterbury--who, in the course of
his long career as metropelitau, must have taken
• leading part in the confirmation of almost all the prelates
In his province, now on the episcopal bench, and who, in
the most trying times, bad ever displayed the utmost up.
rightness, prudence, moderation, and circumspect care. The
oilier party of whom complaint was made, was a puma
whore mind, learning, and judgment were as well esta-
blished as was his high character in all other respects. Those
parties, so conversant with the law and custom
is this matter, relied, not upon the abstract
justice or propriety of the particular form, but
upon the express terms of an express act of parliament,
the 2.i of Henry VIII. The first observation that occurred
to him, in reference to this act was, that no form of confirm-
ation whatever was set forth in it, or in the preceding act on
the same subject, the 23 Henry VIII. ; which latter statute,
after denouncing former exactions of the Pope by mesas of
delaying the confirmation of bishops named by the King,
enacted that for the future, any person presented to the
court of Rome, as bishop of any English see,
and whose confirmation by papal bull should be
unduly deferred, should be consecrated by his arch-
bishop, and be then and thereafter taken to he, and be,
bishop of the see to which he had been named. In
this statute the word confirmation did not once occur. This
statute was kept alive by the 23 Henry VIII. The statists
was framed in that spirit of jealousy of Rome which was at
that time severing, one by one, all the UPS between this
kingdom and that see, but neither King Jitney nor any
other king was likely to leave the means of making bishops
imperfect or uncertain for the time to come. That was one
of the objects of the statute, as put forth by the preamble ;
and it bad been asked whether such a king was likely, at
the same time that he deprived the lops of his veto, to give
it to one of his own subjects ? The only answer which had
been made to this question, he confessed he had heard with
surprise and regret,benuse, as he caught it, and he believed he
was correct, it was a severe reflection on that great father
of the English Protestant church, Archbishop Creamer. lie
understood it to have been said that the king knew how ob-
sequious an archbishop he had in Creamer, who would
readly comply with the king's will. True, he was not a
blameless men ; far from it for, shortly before his death, he
betrayed a great want of firmness ; but he might be per-
mitted to say, not greater ten that exhibited by
the Apostle whom the head of the church selected
from among his brethren, as the rock upon which that
church was to be built; and his death, at least, might
have atoned for this fault, and have saved his memory from
such observations in the presence of so many sons of the
church of England. lie must say he did not expect to
hear the name of Creamer introduced for such • pur-
pose, and he thought it showed great excitement of
mind canting somewhere on the present occasion, whe-
ther in the clients or in the counsel who made the
remark. lie would say that he felt it was doubly the duty of
that court on such a question as this to take care that they
were not led away by such inspreetions,"or yelled too much
to the authority of these ecclesiastical powers, which, in his
opinion, it had been the duty of that court, in all
ages, to watch with peculiar jealousy. (Sensation.)
If Henry relied on Cranmer, as upon • mean and servile
churchman, who would truckle to his caprices, he was
wholly mistaken in his man. The archbishop, on more than
one occasion, thoroughly thwarted the monarch on points
which the monarch was especially bent upon carrying. lie
opposed him in the matter of Anne Boleyn, and, despite
Henry's utmost anger, manifested himself the unswerving
friend of the unfortunate queen ; and again, in the matter of
the Six Articles, both in and out of parliament, opposed the
monarch, though it was perfectly well known that
the latter was determined upon the extirpation of all views
and doctrines contrary to his own by torture and death.
But Creamer was not immortal, and other lees tractable
metropolitensmighthave arisen, evensupposing his character
had been what it had been represented; and it wes,therefore,
inconceivable, by any ingenuity, that Henry would have
allowed any doubt to remain as to the prerogative which he
proposed to establish. The whole argument on the otherside
rested on the word confirmation,. but this word did' not
occur alone in the statute, where it was found in
the word election " should confirm the said electidn, "
words which plainly indicated the duties devolving on the
metropolitan. When the election was real two things re-
quired to be certified to the archbishop—first, that the elec-
tion was duly made, and secondly, the identity of the person
who brought the certificate, it being further desirable, no
doubt, that the archbishop, by his benediction and gracious
reception of his new colleague, should inspire the people
with confidence and respect for him. But, it was mid he was
to cite all persons to oppose; and it was a question whe-
ther be was bound to open • court of this descrip-
tion. lie would ask, could there be any necessity for such a
course when the person tobe confirmed had already been or-
dained • deacon, en which occasion all people had been called
upon to pronounce whether they suspected him of any crime
or offence, when, if anything were alleged against him,
future proceed in gs were deferred untf I inquiry had been made?
The same pereou must have undergone the same ordeal on
being ordained a priest; and, when bishop elect, he came
with the additional testimouy of parties well qualified to judge
of his fitness in all respects ; for, since the provision of that
statute, he brings the recommendation of the crown; and was
that to pass for nothing ? Why vas the archbishop, then,
to commence an inquiry ? Why was he to call upon all the
world to come forward and depose ? If the election wire in
the people, he could understand the argument ,• but here it
had passed away from the people, and been vested
for ages in the dean and chapter, on the recom-
mendation of the crown. The limitation of time im-
posed in the two great processes of election and confirms.
tion—of 12 days in the former cue, and 20 in the latter—
strengthened this view of the matter. The election, in fact,
was reduced to • mere form, the appointment being in the
crown; but; consecration wore a more solemn aspect. The
bishop was to be " called, tried, and examined;" and the
archbishop, after receiviug him at the hands of two bishops,
demanded the king's mandate f.r his consecration. Then
the archbishop, sitting in his chair, was to put certain fixed
questions, to which fixed amours were to be given. The
36th article ordained cop cially that the consecration should I
be in this form. The consecration, therefore, was
said to be, like the election, very little more thaa
a formal ceremony. The one was the initiation of
the clean and chapter, and the other the confirmation of the
archbishop ; but both were, in reality, the acts of the Dove-
reign ; and that being so, they were now asked to find some
reason why it should be more than a mere form also. The
answer was, that the word " confirm" had a certain legal
Dense. The favour of the sovereign was supposed to
have placed the bishop elect in a position analogous
11 to that of • felon, whose trial the jury were
to decide. He had pleaded not guilty to the charge ;
and all persons were then to be invited by public proclama-
tion, " if they knew of any treasons, felonies, or other mis-
demeanors, done by the prisoner at the bar, to come
forward and give their evidence." That was the position is
which it was now contended a bishop-elect, whose doctrines
had been approved of on his ordination to the offices
of deacon and priest, who had been nominated by the crown,
and elected by the dean and chapter, was to be placed by
the favour of his sovereign - and the charge was to be made
blacker, if possible, by the use of a word, to which was
attached the foulest of crimes which had disgraced man-
kind. The full and comprehensive word " heresy."
And when engaged upon this topic he felt it neceasory to
repeat what had often been stated in former judgments—
that the canon law formed no part of the common law of the
realm unless practice could be shown to the contrary. Then
he was of opinion that the burden of proofs on such a point
rested on the parties opposing ; but into this he need not go,
'for he was convinced that the practice never had existed
authoritatively in this country, and for proof of that he
relied, not upon affidavits, but upon the arguments of the
appellants themselves, for he was satisfied that if even such
a case could have occurred it would not only have been
cited in that court, but would have been notorious to all the
world. But there was not a trace of such a case ; all retards,
historical and legal, proved • perfect blank with re-
spect to it. It was argued that perhaps such a case never
had occurred because an appeal to that court might never
before have been necessary. What ! during all the centuries
Christianity had existed, had not one person, some of whose
opinions might have been alleged heretical, been elevated to
the lunch of bishops? Had there been none elevated with
" spiritual pride," none with " jealousies," none against
whom some person or another might not have alleged some
soreef "immoralities?" And even if this were ao,were there no
persons during all that period capable of making a fame charge

—of dreseing a false inference? Where were the seers of
Bend at that time, ,a elms that were not extinct in these
days, &est that failed to be forward in casts In which
they took so much delight ? (Sermation.) But suppose
oppose" admitted : let them observe what would happen ?
Coma forth, said the proclamation, and offer your opposition
in the ease of this penes to be made a bishop. The
Ammer Is, from ens. " I knew this man at college, and I
can tell you of some irregularitiee in his life." Another
woold say " This person is justly suspected by one of
having performed a bevies whilst in *state of inebriety."
• third might charge him with " vanity." Another might
throw a slur upon the chastity of his moths, or attack his
own cooduct respecting his eon. All that the Pharisee blessed
Woolf at being free front, these people might falsely allege
against the bishop. He might know all the allegations to
be false and infamous; the judge might think the &c-
-osign utterly unworthy of belief : yet the inquiry must
, and a string of calumnies must be heard.
sat how much was this case strengthened when the charge
was the unfathomable charge of heresy, supported by ex-
tracts from books difficult to understand, and by reported
caavereations, probably imaginary, and, if real, difficult to
be merectly repeated. Thus the life of a bishop might be
frittered away whilst proceedings were pending against him,
sad his see might be left without an occupant, to the detriment
of the church and of the people. The existence of this course
beim inferred, the next consideration was what the pro-
eissaigs would be. These might be inferred from the
aribeds of the court, which was described by Bishop
Gibson, and from which it appeared that in the courts of '
cosirsastion it was absolutely taken for granted that no
opposen would appear, and that, if they did sppear, there I
was no provision for what should be done. Now for aught ,
that they could gather, it would seem that the form
of appearance was no more than any other part of '
the proceedings before the court: a form kept up
from usage, or possibly because certain emoluments
attached to every one of the ten stages to be gone through.
There was no evidence that this form had any vitality in any
part of the ten centuries during which Christianity had ex-
isted since the Reformation or even before it. But even if
it had existed before it, why might they net presume the
ecclesiastical authorities themselves to have the credit of re-
fusing to persist in a power which was most anomalous and
dangerous? He would not go so far as to say that any
attempt to give the farm vitality or to carry the law
into effect, must have shown its utter impracticability ;
but he thought such was highly probable. Let him con.
eider, however, what a mighty edifice was sought to be built
up upon it. He was told that the srehbishop was a court •,
hut that this court had ever done what it was now required
to do was never pretended. The right of appointment of a
bishop by the crown, without the interference of the arch-
bishop, had, in fact, never been doubted ; that any opposer
to the confirmation was entitled to appear was never
even surmised. There had been, in fact, only one exception
to the rule of the non-appearann of opposer',
sad that exception was in the case of Bishop Montague,
kthe vicar miters), Dr. Ryer', refused to hear an op.
paarr guarding himself, however, by stating that he did so
because his opposition aas not in writing. Of this Dr. Ryves
they knew little, and that little not much to his credit;
but it was very clear that it lie ,iid give such a judg-
ment ho was wrong, for in the law nothing was
eaid about the oppoeition being in oriting, and indeed
it might proce
ed from a party who wro not able to
write. If such a proceeding as this were permitted, the op-
poser of the new Bishop of Manchester might appeal to that
court. True, the Bishop of Manchester had been con-
secrated, but even then a plausible ground might be laid for
appeal, for it was open to a doubt at what precise stage a
man became a bishop. In a case formerly before the court,
the question was, whether a bishop was a bishop after elec-
tion or after confirmation, and a very extended argument—
half the Worth of that they had heard in this case--was built
up upon those positions. Bat even on that occasion
no hint was dropped that opposers might be admitted,
and Justice Whiteleck made no reference to any such poen.-
, bility. A useful pamphlet had been cited in that court,
containing a collection of opinions upon the subject of the
prerogative, in the form of dialogues and statements. It ap-
peared from that pamphlet that both Charles IT. and Wil.
liam 111. had made orders relative to the appointment of I
bishop.; but in neither of those instances was the right of
int. rterence with the appointment of the crown in say way I
recognised. The case of Bishop Gibson, which had
been before mentioned, was a remarkable one. He was
assailed by one of the most learned judges who ever set in
that oourt, Sir Matthew Forster, as one who desired to erect
the church into an imperium in imperio. This charge it
was that induced him to write that celebrated treatise which
still remained a perfeetstorehouse of ecclesiastical law, but in
no one page of which did he assert the existence of any power
on the part of an archbishop to defeat by such an inquiry
as that before the Court of Confirmation, the right of Hotel-
don by the crown. In the case of Bishop lioadly, that
prelate gave his opponents tree opportunities of making op-
position to his confirmation, knowing that something was
alleged against him. Archbishop Wake remonstrated with
the sovereign against the promotion of Dr. Samuel Clarke,
and other sovereigns had consulted archbishops before pro-
moting to the office of bishop; hut not •word had been uttered
not a tact bad been cited to show that any archbishop had
ever instituted, or could ever institute, any inquiry. Every
one had heard in this case of the celebrated protest addreesed
by thirteen or fourteen bishops of the church to the prime
minister, against the appointment of this prelate. The argu-
meats they urged were arguments of great weight and power,
butthough they warned tne ministerof "scandal" arising from
the nomination, not once did they allude to rejection of the
prelate on confirmation on the ground of heresy. One of the
objectors wished not to be exposed to the peril of a pram*.
nire, but there was no assertion of the danger and disgrace
so likely to arise from any opposition on the
part of those who had procured the condemna-
tion of the bishop-elect by the convocation of his
university. It was said, indeed, that by not allowing the
court to inquire, the archbishop would be converted
into a mere " machine." That word " machine,"
suggested to him (Lord Denman) the idea that the writ of
that court might possibly be required to be used as a
" machine"—• machine with some sort of galvanic operation
upon powers hitherto supposed to be extinct. But
this idea implied that the forms into which vitality was to
be generated, had never had existence. He did not believe that
ever to have been the case. The duty of the archbishop in
the matter appeared tohim to be clear, and entirely apart from
the functions of a judge. If his inquiries led him t the
opinion that the appointment would be injurious, be could
remonstrate. He could advise the crown not to issue a '
cotve et' aire. He might ask to be removed from the painful
position of performing, or ordering to be performed, the duty
of consecration ; or, if he was quite clear that the cove 1
d'ilire ought to be set aside, he might sat as his conscience
doubtless would dictate, and u some of the judges of that
court had acted, and resign the office which the
crown had given to him. As to the right course to be taken
sa archbishop he had no doubt ; as to the circumstances
of the present case, if the archbishop felt any doubt, he
(Lord D.) was perfectly assured, that ere the confirmation, he
would find all his doubts resolved relative to the propriety of
the appointment, which was now the subject of consideration.
He would ask whether it had been the opinion of any
person, until within the last few weeks, until this unfor-
tunate controversy had occurred, which had so inflamed the
public mind, that the archbishop had a veto on the ap-
pointment of the crown to a vacant bishopric ? And when
he heard Sir F. Kelly entreat, with so much solemnity of
manner, that they would not expose the archbishop to the
mockery and shadow of so sacred a prccecdiag in which the
Almighty was invoked in prayer ; when the learned counsel
called upon the court not to pronounce that all this cere-
mony was a mere useless form, he confessed that he hardly
knew how to meet such an observation. Were the dean and
chapter to be treated as nothing ? Did they conduct their
proceedings without prayer and solemn ceremony ? And if
they were required, notwithstanding, to proceed to the elec-
tion, without tl,e power of refusing to elect the nominee of
the crown, why should they be referred only to the
confirmation, and not to the election? It might be an
ill-considered and an impious act of parliament, and one per-
haps that ought to be repealed, hut why there should be any
objection made to the solemn ceremony of the confirmation
and the election, which was conducted with equal solemnity,
both of which were in conformity with the act of parliament,
he could not understand. It reminded him of the two
Roman authors who were said never to meet each other
without laughing ; and it certainly did appear to him that if
the court yielded to the request of the learned
gentleman on such a ground, the advocates on
both aides would have good occasion to laugh
at its decision, Having stated his reasons for the
opinions which he deliberately, firmly, and conscientiously
entertained, that what was contended for in support of the
rale never had been at any time the law of England, he
must say that he thought the court was bound to refuse the
writ of mandamus. At the same time he might state,
that he had had the greatest possible
toe in coming to this conclusion, and the more
especially as he felt that this was a refusal of inquiry,
which in a railway or any other ordinary case, would
at one be granted. A writ of error would, however, lie if
thy had forme an improer opinion but his opinion was
soe strong against makingp such a rule absolute, and so
entirely unchanged by what he had heard that day, notwith-
standing that he felt the greatest disposition to show the
highest respect to the sentiments of his learned brethren
who differed from him, that he could not possibly
say that this writ ought to o. He thought, if
it went, it would be good, for nothing; for the return
which could be made to it would be a sufficient answer.
But he was also bound to consider the consequences which
would arise from the issuing of such a writ—via., the fright-
fal state of theological animosity which it would create and
perpetuate for a period of, perhaps, two years, and the sane-
Von it would give, upon the avoidance ef every see, to the
adoption of a similar course, where the archbishop would be
called on to summon all mankind in every case as objectors
to the appointment of the crown, and keep open
a court which, in f ct, might never be closed.
It must also be borne in mind that the court had a discretion
in the issuing of a mandamus, suppseing even it thought
that the proceeding complained of was of a judicial character,
and that the archbishop might be compelled to hear the ob-
jectors; and, in the exercise of this discretion, without
regard to the legal right, he felt bound to refuse the writ.
He must also acknowledge that some deference was due to
the exalted pereon who was the defendant in this case, as
well as to Dr. Hampden himself, whilst more regard was to
be paid to the safety of the church and the peace of the
state, which he verily believed would be petalled by the
encouragement of the smallest doubt as to the true meaning
and intention of the act of Henry VIII. He repeated that he
had the greatest respect for the opinions of his learned
brethren. He thought this was a question which ought to have
been discussed. The balance of convenience certainly
appeared to hint to be in favour of discussion ; and he moat
say, in reference to his brother Coleridge's admirable argu-
ments, that they only confirmed him in the danger of
exposing the clear construction of acts of parliament to those
who would bring down their forgotten books, and wipe off '
the cobwebs from obsolete decretala. He thought it was

their decided _
parliament, and
must be discharged.

fairly to oon!so.rd

by the eat of I
that the role

the GAZETTE of 211'S NIGHT.

BANKRUPTCIES ANNULLED.
Gnome Flours°, Portway, Warwickshire, licensed
victualler, Jan. 19.
JORN STRING'S, Kingston•npon-Dull, draper, Jan. 27.
Jotur HALL, Coventry, ribbon manufacturer, Jan. 28.

BANKRUPTS.
WILLIAM Wrurr, Neftbrop, Banbury, coach maker.
Jour( CLarrox, Crown.court, Cheapahis, Manchester

arehosseman.
WILLIAIt Pita Banasrr, Palace-row, New-road, iron-

monger.
Juicy O'DONNJLL, Sidney-street, Chelsea, bricklayer.
JOHN SHEPPARD, Lion Brewery, Shirley, Southampton,

Hermon brewer.
Jong lierzet.L, High-street, Deptford, builder.
THowas Luken, Great Coxwell, Berkshire, innkeeper.
ALYCED KING, St. Clements, Oxford, timber merchant.
JOHN BENTLETT, East Peckham, Kent, grocer.
JOHN °Bolton Moors; and BENNY BAYLISS, Norwich,

Mete DOUWetie
WILLIAM STAR, Lynn, Norfolk, cornier.
JASON Ploo, Fulbourn, Cambridgeshire, grocer.
ROBERT ROWELL FitsrweLt„ Greenwich, ship owner.
HENRY CRoss, Kirton, Suffolk, farmer.
CHARLES MIDDLETON REENOT, West CORM Isle of
Wight, chemist.
JOHN THOMPSON, Sheffield, licensed victualler.
Jnearit PARISE, Blackburn, Lancashire, grocer.
JOHN BOMBS, Manchester, Cattle dealer.
J AMER RAND, Preston, lAncashire,yorovision dealer.
THOMAS Fox, GEORGE RIPTON, CHRISTOPHER AMIN-
IiZAD WAWN, and WILLIAM LIS/MAN, West Cerntorth,
Durham, lime burners.
Geoatut CRADOCK, Darlington, rope maker.
JOHN Tucxra, Tevistock, Devonshire, attorney.
ROBERT SPENCER, St. Sidwell, Exeter, printer.
SAMUEL HINNY SERJEANT, Callington, Cornwall, at-
' torney.
WILLIAM BAONALL, Bnrselm, Staffordshire, grocer.
SCOTCH SEQUESTRATIONS.
JAMES HOUSTON, Auchtermuchty, Fifeshire, merchant.
ROBERT CRAIG, Edinburgh, tailor.
THOMAS Bu RNs, Edinburgh, gas manufacturer.
DAVID HALL, Newmains, Cambnsnethan, Lanarkshire,
merchant.
WILLIAM MOFFATT, Glasgow, mershant.
JOHN SLAM, Paisley, manufacturer.
JOHN GIBSON PEEBLES, Glasgow, commission agent.
ALBERT CAY, Edinburgh, stockbroker.
James Ross, Edinburgh, commission agent.
ALEXANDER COUPAR, sen., St. Andrew's, shoemaker.
Jostm ImoLle, Edinburgh, leather factor.