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

~~

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BIS HOPRIC Of-HEREFORD

DR. HAMPDEN'S CleE.

COURT OF QUERN'S BERM—Tans DAL,

Mors Lord Demean, Mr. Justice Pattecon, Mr. Judea Coleridge,
and Mr. Justice Erb.
Tint QUanal a. TIM ARCUntskioP or CaNTSRIWILT.—
JODOSIMIT.—The announcement previously made that the
court would to-day give Judgment in the ease of Dr. Hemp-
den,the bishop elect of the see of Hereford, all the avenues to
the court were crowded at an early hoar by a dense Maas of
persona anxious to get admission. At tan o'clock, the
court was thrown open, and in a few seconds it was crowded
in every part. The galleries, u during the arguments, were
occupied by a number of ladies, and Lord Campbell and
the Bishop of Llandeff occupied seats upon the bench.
Shortly after ten o'clock, the judges entered the court.
Mr. Justice Erie proceeded to read his judgment. The
learned Judge said: In the cue of the Queen against the
Archbishop of Canterbury, a rule for • mandamus, calling
upon the archbishop to examine into the fitness of Dr. Hemp-
den to fill the see of Hereford, who had been objected to at
the time of confirmation, on the grounds of the unsoundness
of some theological opinions, has been before the
court. In support of the application it has been contended
that the archbishop, at the time of confirming the election of
Dr. Hampden by the dean and chapter, was bound by the
provisions of the statute 25 Henry VIII. to try judicially
the validity of that election, sod that the persons present at
the time of such asaillradag had a right to state to him their
objections to the prom elected end to demand the welt-
bishop'sjudgment ea such objections, and that this might be
enforced by amadamme v use of a refusal se to hear 'Ed
decide. Oa the ether side it has beep esatassied that *a
mord& lan 41•11 M alt*Mistion.l.o.ltesse,"lllll"
the Zany :a the sedl. wiles
qu tuns epos OSSllindimi sad interpmtatieato be
put upon that statute. The preamble of the 3rd maks
provides that the made of peemediss plainly expressed ia the
statute 23 Henry VIII. shall be Melia ; and, for remedy
in default, the 4th section enacts that the dean and chapter
shall elect the person named in the king's letter missive
within 12 days after the receipt of such letter missive, and in
case of their default so to elect, the king may nominate
and present to the archbishop such person as be shall think
fit, able, and convenient to fill the vacant sus; and the
sth section provides that, In case of such nomination by the
king, the archbishop shall invest and consecrate the person
nominoted and presented by the king. The 2nd section
enacts that, in cue the dean and chapter shall elect the per-
son named in the letter missive, their election shall be good,
valid, and effectual to all intents and purposes. It is further
provided that the person so elected shall be taken te be and
aimed the lord bishop elect, and, before confirmation, shall
take the oath of fealty to the king, as provided by the act ;
and that then the kiug shell signify the said election to the
archbishop, and command him to confirm the said election,
and to invest and consecrate the person so elected. And thea
the 7th section provides that, if any archbishop, after any
such election or nomination, shall refuse to confirm, and
does not confirm, invest, and consecrate the person so nomi-
nated or elected within 20 days after the election has been
signified to him, in the manner prescribed, or if
any person shall admit any process which shall
be contrary to the due execution of the act,
every such person shall incur the penalties of a protium-
nire. On a review of these enactments, it appears to
me that the power of nominating to a vacant see is given to
the king, and that the archbishop has no power or autho-
rity to judge whether the king has properly exercised that
right. In the case of an election by the dean and chapter,
the king is to command the archbishop to confirm the elec-
tion, and this brings WI to the point in contention here—
namely, whether this is to operate as a command, or whether
it is to try the validity of the election and the fitness
of the person elected. According to the general rule, the
words of the statute must be construed in their ordinary
mese, a as to give effect to all its pars. In an ordinary
sew the command to confirm does not involve any such in-
quiry by the archbishop as has been contended for on the
put of the applicants in the case now before the court ; and
in other parts of the statute it is distinctly provided that the
election by the dean and chapter, or the nomination by
the king, skall be good, valid, and effectual to all intents and
s ; and then the clause relating to confirmation
MiTrise, and this confirmation is consistent with the previous
provision, and it would he a contradiction to say that the
election or nomination, which was said to be good, valid, and
effectual, to all intents and purposes, should be voidable and
inconclusive at the will of the archbishop. Again, the
enactment that the person elected or nominated by the King
shall be taken and named the lord elect is inconsistent with
the power alleged by the applicants to exist in the archbishop
[to judge of the validity of the election, and of the qualifies-
Hens of the person elected or nominated to fill the office ; so
air ON enactment that the archbishop shall confirm, invest,
awl scasecrate, within twenty days, is inconsistent with the
duty of the archbishop to receive objections, and
to ide whether be shall confirm or refuse. The statute,
therefore, if construed by ordinary rules; does not operate to
impose on the archbishop that duty, or to give to the appli-
cants the right which has been alleged. But it is contended
that at the confirming of a bishop, there is, under the canon
law, to be an inquiry into the validity of the elec-
tion and the qualification of the person elected,
and that this power conferred upon the metropolitan has been
exercised in every part of the Christian world, and prevailed
down te the time of Henry VIII., and therefore that the
legislature which had passed the important statute on which
the cue rested intended it should be taketanot io an ordinary
but a technical sense. In support of this view many passages
from tke canon law and from learned historians have been in-
troduced in the course of the able arguments which have
been addressed to the court ; and the proclamation citing all
opposers to appear has been much relied upon, as showout
that the archbishop has the power to inquire sad that the
people had the power to object. But the grounds on which
that proposition has been maintained are in my judgment
untenable. The preamble of the last statute brings before us
the act 23, Henry VIII., from which it has been gathered
that the nomination and presentation by the King to the
Pope was then the mode to make a bishop, but in case of
delay by the Pope the King had power to nominate and pre-
sent to the archbishop, and this latter course was described to
have been, " that deans, archbishops, and bishops, had been
by sundry of the King's progenitors so made, consecrated,
and invested within this realm. In fact this making, conse-
crating, and investing is mentioned in the preamble ; but
confirming is neither mentioned in the preamble nor in the
body of the statute itself. Now a reference to history shows
me that, from the charter of John down to the reign of
Edward 111., • bishop elected by a dean and chapter was
confirmed by the archbishop; and from the time of Edward
111. to the passing of the statute, the Pope superseded the
archbishop, except when at times the Papal see was power-
less, The statute conferred upon the King all the powers
previously enjoyed by the Pope; and what ground then is
there for contending that the King has not the authority to
nominate bishops without the interference of the metro-
politan ? And what foundation is there for supposing that
the legislature contemplated the continuance of the canoe
law relating. to election and confirmation ? The doctrine of
that law originated in the early ages of Christianity when
all the people joined in the election of bishops; but
the foreign canon law has not a binding effect in
this country; and the object of the statute which
psesedes the statute in question was to limit the
egeretion of the English canon law, because it recites that
may clauses of the canon law are repugnant to the statute
law of the realm, and it provides that until a complete reel
lion shall be made of the canon law such parts of it only shall
be used and exercised as are not contrary to the laws, sta.
tut's, end customs of the realm, nor to the damage or hurt
of the king's prerogative. The proclamation for opposers
made at the time of confirming has been pressed on the at-
tention of the court as showing that it *Asia accordance with
the law as contended for on the part of the applicants. The
form of the proclamation affords, however, no presumption
that a right to oppose exists on the contrary, other parts of
the statute show, that the proclamation is a mere form as
the election by the dean and chapter is a mere form. The
statute declares the election to be good, valid, and effectual
to all intents and purposesand leaves nothing but mere form
to be followed. Though
there has been extreme industryindustry
an d research, both legal and historical in this case, no instance
has been doom' in which opposers have exercised the right
now claimed. All that had been shown is that
there had been such an attempt made against the con-
firmation of Bishop Moatagu in the time of Charles 1.,
which was avoided, without • decision; and a similar at-
tempt was shown in two other reported cases, but then it had
never reached action. The quotation made from Black-
stone, however, shows that the right to question the election
of a bishop had not been brought under his notice, and the
absence of any authority in either of the ten-writers is of
positive forse against the claim now made by the present
applicants. It has been pressed upon the court that the
right served to support and strengthen the church esta-
blishment ; but if it was of advantage in this respect, there
are evils on the other side which more than counterbalance
that advantage. Another point we, made for the applicants
in answer to the construction put upon the statute on the
part of the archbishop, namely, that the sole purposes
of the legislature was to put an end to the interference
of the see of Rome, and that the statute so construed
limited its operation to that result ; but the intention
of the legislature was clearly to prohibit the inter-
ference of the Pope, and to provide and lay down
the manner and form of electing, presenting, and
consecrating bishops so revered from the see of Rome, and
full effect must be given to the positive enactments of the
statute. Those enactments not merely destroy Papal influ-
ence, but declare the right of the king, and fix limits
against any encroachment of those rights. After goring my
best attention to the arguments on both sides, my mind has
come to the conclusion that the supposed right of the appli-
cants does not exist, and, therefore, that the rule for a man-
damus ought to be discharged.
Mr. Justice Coleridge next read his judgment. The learned
judge said I am bound to deliver my opinion on this rule,
which has been argued with such remarkable learning and
ability, and I cannot but express my regret that I am called
upon to do so after so short an interval since the discussion—
an interval so much engaged with other duties as to preclude
that attentive examication into the authorities cited, which
the importance of the cue requires. I regret this the more
deeply, because I feel myself compelled to differ from my
Lord the Chief Justice, and alto from my brother Erle,—not
merely upon the whole conclusions to be drawa from the argu-
ments adduced, but in respect to the practical disposal of the