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

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rale now before an On the fumeridlediesprew myna/fel*
difildesse eyes if I had the baptism to have them sencar-
ring with me, because the quietism bee bees argued upon
grounds so large, on ingairies 10 wriest and wide, spreading
into breathe, of the law so little familiar to on, that ft is et-
curable if I express myself with no stem( eeitEldefitee upon
the question. With respect to the mere disposal ef the pith
tent rate, I avow it would be a cousolatios to
me if melt a some shoots' be takes es would
more say error into whisk I may U. I ma set
amenable to thereat public inconveMence which would re.
suit from a needless agitation of this important question,
though I own that inconvertiMice hes bean somewhat *sag
greeted r but still it would be a year* eatheaseol7 settlaseest
of this, garden if it was submitted to the final judgment at
the court of the highest resort. I cannot doubt bat that
those from whets I have the miskirtisite to differ, eutertaia
Nether as strong as I do ott that point, VA the course
of my judgment will be to show the extent
to which I differ from them. On both sides
it has been argued that the interests of the charchare at
stake, and no doubt to some extent they are so. For my
own part I am desirous entirely to forget these considera-
tions and to regard more coldly the question aow before us.
I desire to rent my judgment on the narrow ground of con-
sidering whether the applicants have laid such grenade as
entitle them to a writ of mandamus and to call
upon the defendant to demur or make a return.
The first question which arises is, whether this is a question
of a kind in which a mandamus will lie and have the moth-
cants tech an interest as catalog them to demand it at our
hands. Ido not think that there is much difficulty. in de-
cidiog upon these questions. This is the case of an interior
court, in which persons who had a sufficient interest prayed
to be heard, and they were refused. If this general state-
ment is tree, and the result of that depends on the result •
the whole argument, there is no doubt that it is within the
province of this court to compel the isferior court to bear the
allegations by allowing the mandamus to issue. It it no
answer to my that the inferior court is an eoclesiesitioal court,
and that the matter in discussion is one of eeciesiesticia con-
cernment. Ecclesiastical courts, as such, are not withdrawa
from the general superintendence end control which this
court' exercises, by mandamus or prohibition, over inferior
courts. It is true, that they could out proscribe to 'melon-
astical marts, the course of the proceedings, but still we can
compel the ecclesiastical judges to do their duty just as we
constantly restrain them when they go lammed their jurisdic-
tion. This stands upon the clearest evidence and I would not
dwell at so mesh length, upon it but for the reference
whisk has been made duets argument to a oast wheat
has been completely mimun , the case of the King
v. the Clairchwarderui of St. Peter's, Thetford : Nor dues
say difficulty arise from the fact, that the Roolosiastical
Court heard one side, and proceeded to judgment. In the
ease of the King e. the Justices of Cornareon, reported in
4 Rumen and Adolphus, Men Justice Holroyd expressly
decided that question, but I confess that without that high
authority I should have felt no difficulty. In the issuing
of • mandamus, the court should be guided by principle,
rather than precedent, and we are to regard the
substance and not the form, if this valuable writ is to be of
any avail. And the hearing which it hes been said took
place in this case is no heeling, and the decision no decision.
It has been tad that there is a want of that interest in the
pretest spplicants, which would entitle them toconse to this
court for a mandamus. On many grounds it seem& to me
that they have a sufficient interest. If the whole proceeding
in which the inferior court was engaged, were • mere sha-
dow and form, and that the citation to appear were
a mere shadow ; then, indeed, there could be no
Interest, and therefore the applicants would have no standing
here, and it would be a mere waste of time to listen to them.
But, on the other hand, supposing that the mixeedings of
the inferior court were something more than a mere shadow
—and I will come to that larger question presently—the
very citation itself seems to give them an interest. But two
of the applicants being incumbents, it cannot be said that
they have not an interest is the faithful doctrine of their
future bishop. We have determined that the fact of a
person being subject to the jurisdiction of a borough magis-
trate, is sufficient to entitle Wm to be a relator en a quo
warnuito, and the analogy between that case and the present
seems to me to be perfectly just. It is not worth while to
notice the objection founded on the Church Diecipline Act,
nor do I think it can have been seriously urged. I there-
fore pass on to the main question, the constructing
of the act of Henry VIII., and in applying my-
self to that question, I need not say that our object
mutt be, not to ascertain what it might be supposed
Henry VIII. wished in passing that act, but what the tem,-
Islam has written, though I have no reason to believe that
.if the intention of Henry VIII. was of importunes, it would
be unfavourable to mymew. But it is not " quod voluit rex."
but" quod decrevit parliamentum," that we must inquire
into. The sth section rays, that after the election of the said
bishop by the dean and chapter, the king shall signify the
election to the archbishop, and " require and command him
to confirm said election." The question is, what is the ire"
port of this command / On the one Ede it is said that th
word, created a new duty in the archbishop, and invested
him with new functions; but that this duty and these fun*:
time were ministerial, and that the proceedings were a mere
valueless form. On the other hand it is contended that the
act of confirmation is a solemn, important, judicial act, and
that from the earliest ages of Christianity it was part of the
archbishop's duty to perform it, and the command to psalms
it meant that it was to be performer:lin the trawl an d proper
manlier. It was obvious that those who, took this latter
ground look upon themselves a large burden of air-
manes proof. They undertook to show what celf-
firmation meant up to and at iho dime at she. pesie,ne •
ing of the statute. The case, as it bee been argued, pre-
sents four heads of inquiry. The first, third, and fourth
must be considered as inquiries into matters of fact; the
eecood, one of construction. The advocates for the appli-
cants have upon ail these points railed au strong& case u to
leave in my mind no doubt that they have come to the right
conclusion , and that no such difficulties have been raised ea
the other side as dieentitle them to what they ask for. In
granting a mandamus the nowt does not require either cer-
tainty in the facts or a clue and unanimous opinion with
respect to the law, before they issue it. It is sufficient if the facts
are probsble,and that eufficientia shown to require an answer.
It was not to be expected that in the present case, which was
carried back to remote and frequently troubled times, a per-
fect and uninterrupted chain of legal and historical evidenee
could be made out. There were contests with the pope,
conflicting claims with foreigners ; there was an ebb
and flow of powers; at one time the king gained a little, et
another time he lost. In such a state of things, a perfect
chain of evidence could not be established. In eases of title,
if such evidence was required, what ought to give strength
to a man's cause would frequently proves cause of weakness.
He looked upon the coot in the present instance rather in
the light of a grand jury thanofa petty jury. If they refused
the rule in the present instance because the subject was ens
which ought not to be inquired into, and because
' the evidence was worthless they shut the door
to • future deliberation. Bet ;if they raid that the
mandamus should issue they would beastly requiring further
1 inquiry, and give time for • more solemn decision. If that
were so, they ought to examine the evidence with candid
minds, and make allowance for the unavoidable difficulties
which belonged to remote times, and while treating of laws
and a legal literature, with which they were not familiar.
He therefore thought he was acting on a safe rule and
en a cease entices rule in so deciding upon this ques-
tion, that any error which might be committed
might be less likely to lead to final injustice.
Having made these general observations, lie would now pro-
ceed to the main question. The case on the part of the ap-
plicants commenced with evidence dating from the apostolic
period of the church. He would not go so far back, but
would start from the general councils, the authority of whisk
before the Reformation would not be questioned, even In
matters of doctrine. Their authority was recognised by the
legislature even after the Reformation,in a statute of Blimbetb.
At the time when Christianity was united in one body the
church was col sidered to represent the whole inhibited earth,
and her councils were therefore called oecumenical. It woe well
known there existed in the early periods of the church four
great heresies which occasioned the calling of four general
councils. The learned Judge here quoted from the councils
of Nice and Chaicedon for the purpose of showing that in
those times the confirmation of • bishop was • judicial set,
that it was penes metropolitan. It should. be borne in
mind too that both these councils were called by imperial
authority. At this early period therefore the metropolitan did
intervene, and that his confirmation was necessary to com-
plete the election of a bishop. Could anything be more
reasonable than that the archbishop should have this power,
when the bishop who was elected was to rule within his pro-
vince. He was obliged to pans over a large body of evidence
of this kind from general councils and from national councils.
But as he understood it was not so much contended that
under these laws the point could not be made out, en that
there were no grounds for admitting that these laws settled
the question with regard to England. But when they spoke
,of England before the reformation he could harldy under-
stand that &enaction. The general catholic church, of which
England formed part, was governed by the general canon
law of the church and there were also national councils
which had laws of their own, and which were applicable to
special and local circumstances. Linwood and John the
Deacon, thawed that that they were intended merely
to supply the deficiency of the general canoe
law. He was of opinion that by the canon
law the metropolitan acted judicially at the confirmation;
that the " processes electionia " and pentane electi " were
subjects to be considered; and that the morals, learning,
and legitimacy of the person to be elected might be subjects
of inquiry. He did not remember a single case in which
the inquiry as to the " persona demi " was limited to hie
identity. When the Pope nominated to the bishopric, con-
firmation was needing ; and there were some other cams in
which confirmation by; the archbishop did not seem to be
necessary ; but still after every deduction of the kind there
was a large body of proof to show that the ordinary jurisdic-
tion of confirmation was in the metropolitan. The learned
judge here quoted passage from Wiltons " Anglia Sacra."
1-He conceived that the statute of Hoary VIII. had two pee-
-1 miliag objects the first, to put upon a true foundation the
royal power to the nomination of bishops ; and the second,
effectually to prevent all interference from Rome, as well as
to secure the prompt obedience of the canons. Election was
therefore preserved, but there was a change made by the in-
troduction of the letter missive. There was nothing, how-
ever left to cavil at, nothing new was required to be added to
the old form ; confirmation was still as n OA ever,
and no spiritual power wu given to the Keicrgaaich at all
derogated from the metropolitan jurisdiction—that having
been rather increased than diminished by being relieved
from papal review. If these were all the provisions of the
statute, there would be no difficulty ; but something still
remained. Two parties were concerned in making • Nan*
—the electors and those who confirmed him. The power
and responsibility of the metropolitan remained untouched,
and no provision was mane (a most remarkable circumstance)
for procuring confirmation by any other means, if the metro-
politan refused. The 2nd section of 23 Henry VIII. pro-
vided for commotion without regard to Pard_bals the
whole spirit and language of the set being 011LIM to the
Pope ; who, instead of being termed, as in the ritual of ether
sets, " his Holiness the Pope,': was now called " Bishop of
Home, and the " see of Horne described " the " emit a