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

THE BISHOPRIC OF HEREFORD.

COURT OF QUEEN'S BENCH, lAN. 2
REGINA V. nig ARCHBISHOP OF CANTERBURY.
[Part of the following appeared is a second edition of last
night's E.rpress.]
Dr. Hayford, against the mandamus, commented by call-
ing the attention of the court to a chapter in "Black-
stone's Commentaries," In which it was said that bishoprics
were originally filled by election, but that, these elections
becoming tumultuous, the Emperors gradually took the
matter into their own hands by taking to themselves the
right of confirmation, and investiture with the temporalities.
This was the practice previous to the interference of the
Papal authority. Having described the practice under the
Papal regime Blackstone proceeded to show that in the
reign of Henri VIII. the right of diction was restored to
the crown. fhus both fn Ayllffe's Perergon," and is
" Blackstone " it was shown that the right of election rested
originally with the crown, and was only restored in the
reign of Henry. The act of Edward VI. spoke of the elec-
tion precisely in the same terms as those used by Sir W.
Blackstone. It was mentioned in similar terms in the Irish
statute quoted, and thus they had the principle confirmed in
two statutes—one in England, the other in Ireland—and in
the writings of the most distinguished jurists. There was
no word in the statute of Henry altering the prerogative of
the crown ; it merely related to the " manner and fashion,"
not to the principle of the thing; it left that untouched. The
prerogative was merely restored to its donative power, as it
had stood previous to the Papal parenthesis, so to speak.
He would at this stage of the argument call their lordships'
attention to the kerns now In use in the confirmation of
deans and chapters. In " Houghton's Ordo Judiciorum,"
it was shown that in the election of dean of St. Paul's, the
mandate clams from the bishop. They had, however, newer
never heard of parties opposing the election and ordinad ,n
of deans or canon.. The statute was explicit respecting
episcopal elections, and showed that the duty of the dean
and chapter was peremptory. The parties applying might
have en abstract right to be hard against such election,
but if the legislature had thought proper is override that
right, and to provide no tribunal for ita discussion, they must
remain in the position of other parties similarly situated.
As the proceedings et the confirmation of a bishop were
merely a matter of fcrm, they found that the officers by
whom the duty was performed were such ea could only con-
duct matters of form. " Houghton's Ordo Judiciorum,"
Lord Coke in 'his " Institutes'," anli Dr. Hegeart in his
" Consistory Reports,"hfiehowed that the Vicar-General had
Igo power to exeroeseemtentious jurisdiction, neither had the
master of the faculty who was associated with him in this case.
In every case the writ of election was mandatory,
ne matter what form might exist, and it could no
be disputed by the body to whom it was di-
rected. Lord Coke stated that the Archbishop's court
dealt only in matters profornsa, and in matters concerning
; which the judge had no contentious jurisdicton. The eon-
firniation, it appeared , had always been held in Bow Church
and where the archbishop had a duty to perform in matters
of contentious jurisdiction, as auditor curia audientier, the
court was held in St. Paul's, but that was now abolished.
Not only had the archbishop's vicar-general no jurisdiction
in matters of contention, but it applied equally to the
appointment of any other vicar-general. The libel
charged unsoundness of doctrine. Now, suppose that libel
was received, who were the pinhead issue, and who was the
party put on his defence? Not the bishop elect, for be was
merely a by .stander—the cause would be not between the
objectors and the bishop elect, but between them
and the dean and chapter. They had elected
the bishop as * man of learning sad piety. How
was it to be proved that he was not ? Was the bishop
to be expected to come forward and my "I am amen of
learning, piety (for piety was the word used), and good eon-
duct ? ' Modesty would forbid such • course. Then could
they prove the libel by means of witnesses? The oourt had
ne power to hear witnesses. If the charge partook of a
criminal nature, articles must be exhibited, and the matter
would then come under the Church Discipline Act. The
commissioners of the archbishop would have no jurisdiction
at all in the case, and if they went into it they would have
no power of sentencing for the offence, if any should be
proved, or administezing justice in regard to it. Again,
if witnesses were to be examined on the part
of the objectors, witnesses on the part of the
bishop and the dean and chapter must also be
heard, and if the court were to proceed with the inquiry de
die in diem, it would be gaits impossible to conclude the
matter within the time which the statute prescribes. He
contended, therefore, that the preheat difficulties, napalm
a jurisdiction existed, were Insurmountable. The charge
refbrred to certain books published by Dr. Hemp
den in 1836. That being so, Dr. Hampden wee pro-
tected by the 20th section of the Church Dimipline Act,
which e nacted that any suit against • clerk in holy
order' for any °Tepee against the ecclesiastical law must
be commenced within two years after the commission
of such offence. The dictum of Lancellattmohough
undertaken under the sanction of Paul I V.,had never reeaived
the confirmation of the Pope, and could not be received as au-
thority. But if it were taken es authority elsewhere the question
would arise, did the authority of that book ever obtain In Zee-
land ? He could find no proof whatever that the law, as laid
down by Lascellottus, had ever formed part of the law of Eng-
land, and it was not sufficient to justify a mandamus in this
case that because certain Corms obtained here that therefore
certain ether things prevailed as law. In the preface to
" Burn's Ecclesiastical Law," page 26, it was stated " that
it was necessary first to inquire what was the
canoe law—not merely what were the opinions of the canon
ists—and then compare the same with the common law
and the statute law of England, and with the king's prero-
gative." They wanted not merely the opinion of th
eanoniste, but bow far it had been received in England. Cho
theta two points in the matter before the court, he feared
they were totally r.nd entirely in darkness. The note of
Lyndewode as to the Constitution of Peck 6am,which had been
brought forward es some authority, did not refer to bishops
at all, but to the election of minor prelates. Bishops were
expressly excepted from that constitution. The object ap-
peared to be to endeavour to run a partite' between a pre-
sentation to a living and the confirmation of the
appointed. Nothing was said about bishops; it merely
feared to persona who were to be confirmedby bishops. Bat
it was quite possible that, without more knowledge of the
circumstances as to which Lyndewode spoke, they might fail
to understand his meaning. He was, therefore, a very un-
safe authority to rely upon. After referring to the Constitu-
tion of Othobon, the learned counsel argued what would be
the case, supposing the libel were received and the inquiry
were conducted before the commissioners, supposing they
found there were objections to the confirmation of
the bishop under the law as it stood in those
days, and that the commissioners refused to confirm.
What would be the consequence of such refusal 7 That the
commissioners would subject themselves to the penalties of
prwmenire. The statute distinctly laid it down that the
archbishop, if he refused to confirm, would be subject to those
penalties. There was no provision ler the case of a
refusal to confirm es regarded the vacant bishopric.
There was as to the refusal to elect. This showed
that it had been always considered that such provision was
unnecessary, as, the appointment being vested in the crown,
and the election once over, no opposition could be anticipated,
and all that remained was for the archbishop to confirm,
which, under the penalties of premunire, he was com-
pelled to do. The object of all the statutes of Henry
VIII. and Elisabeth was to make the king the head of the
church, end to place the King in precisely the same position
as the Tope had previously stood in with regard to matters
ecclesiastical.
Mr. Justice Coleridge : Suppose the crown to have the
power of dispensation, as the Pope had, would it be right to
act upon it against the auyaiel eldeetion as to age
Dr. Hayford said that it apprised to ban that so large a
portion of these dispersing perms had been commitud
to the Archbishop of Canterbaryt as the metropolitan,
that it must be takes he kid .Ibe power of dis-
pensing with ev TAM might belerfers with
his obedience to the 11 eserdela ; and with
regard to age, there ire a ad id pediment,
which specially applied. HeidleallWasslkett no each
_
interferences in the cue of egg assalis Bat
what he had endeavoured raps loge di—lrirdlO was
a mars formal act. Mammon lawdid notiatredacodielisetion
of bishop', it merely regulated it; sad on skit he
would draw ottotstiow to " Binskaa's Moieties.
to show that eonfirmatioa had always less =as
the mere formal recognition of the sierra, and that
the duty of the archbishop fa atellnarg was
like that of a retorting officer at ea eked= ; it was away

to say that the electors had isempliod—' With OW .liwiltired keen
—that the thing required was demi; sad** same[ beek west
on to say that the parties called to comb. had as
negative voice in the matter. This was prosiest, the
eau in the present instance ; all that the commissioners bad
done was to confirm the election; and who ever hued of sueh
a proposition as that objectors should allow the eked* to be
carried without opposition, and then come forward at a sub-
sequent stage, at which the party objected to would
have no power to defend himself, and there Fleeter their
charges' cast him ? With weird to the ewe of
Joffe* the did not op to the present qua-
tioa, as had already stated by learned friend, In
the case of Archbishop Parker, it appeared that the pro-
visions of the 26th of Henry VIII. had not been
complied with, inasmuch as no archbishop sat amongst the
commimioaen. Burnet, in his " History of his Own
Times," speaking of the election of Dr. Cartwright to the see
of Oxf•rd said that some of the bishops brought to Arch-
bishop Sa;icroft artiales against the bishop elect, and prayed
that the confirmation and consecration might be delayed. The
archbishop at first was inclined to comply with that request,
but, after coasidering the matter, Archbishop Sancroft con-
sented to consecrate, because of the penalties of oneolunire,
to which he found his refusal would subject hint. This
proved the opinion held on the matter is those days. De-
siring as be did the prosperity of the established church, he
should deeply lament any alteration in the appointment of
bishops by which the element" of popular election might be
introduced, and he felt confident their lordships would see,
on every ground, the importsnes of such appointmulte re-
in the hands of the Crown.
nitril'addimeress Wowed ea the same side, and refereed to
a variety of authorities to show that the canons relied
upon by Sir Fitzroy Kelly were not applicable te bishops at
all. The decretals of Gregory IX. and Status VI., clearly
proved that inferior officers of the church, and nit
bishops, were referred to. It was most remarkable that, al-
though those canons and forms were relied upon by Sir F.
Kelly as the principal foundation of his argument, he
did not cite a single case to show that there
ever was, either before or since the Reformation, any inves-
tigation such as that now demanded. And it was still more
remarkable, that the text writers were all silent upon the
subject. The learned gentleman reiterated many of the princi-
pal arguments already addressed to the (mitt, and contended
that such investigations were not only contrary to the whole
scope and purview of all the statutes on the subject, but, if
permitted, would lead to interminable difficulties and the
most abetted inconsistencies. According to such high
authority the ceremony of confirmation was not im-
perative, but, so far from it, was most frequently
dispensed with by the Pope; and as the King of
Eastland stood in precisely the same relation to the
church as the Pope had done before the set of Henry
VIII., it of neeeseity followed that the ceremony of eon-
firmatioa in this case was not an essential towards
the bishop's entering upon his functions. If the bishop
be deprived, that altered the case ; but, so long as he
was bishop elect, be wan entitled to claim at the hands
of the crown the full enjoyment of his office; and in that posi-
tion the bishop elect of Hereford now stood before the court.
Looking at the question in a general way, would any one
contend that the appointment of the crown to other offices,
such, for instance, as in the case of any of their lordship* or
themselvts (the court or bar), was to be canvassed or sub-
mitted to the supervision of any other authority r So much
for the statute. And now, addreming himself to
the argument of his learned friend (Sir Fitzroy Kelly),
he must contend that the court could not legally interfere
in the present case, nor even on any ground of ecclesiastical
law, for the court had no jurisdiction in suck matters. Io
Raymond's Reports there were several such cases decided ;
one notably, wherein the interference of the court by way
of mandamus to pretest the court of delegates from pro-
ceeding to deprivation was called for and repudiated by the
judges.—Lord Coke expressly laid it down that such interfer-
ence was unprecedented, and it would be equally so in the
case of the present mandamus, for it was impeurible to show
the slightest difference between the two cases. A mandamus
was applied for in the case referred to by the learned couusel,
calling upon the Court of King's Bench to compel the court
of delegates to admit the bishop's allegations; but Chief
Justice Holt said, in bis judgment, that the court could not
sustain such a mandamus, although it had the power to
do so in the case of a probate of a will, because that was a
temporal case, affecting private rights, whereas the court
was the, called upon to exercise an ecclesiastical jurisdiction
which it did not posses. There were other cases reported,
wherein application appeared to have been made to obtain the
interference of the court in civil matters, as in that of Dr. Lee
(also reported in Lord Chief J ustice Holt's time), who applied
to the court to issue a mandamus to swear in a proctor; and this
was refused, on the ground that it was an interference with
the ecclesiastical authorities, and, as such, could not be-done.
So also in tee case of Hobart e. The et rchbishop of Canter-
bury, the mandamus was refused by Lord ELleaborough on
the same specific grounds as those laid down by Lord Holt,
There was also a large class of cases relating to mandamus,
namely, those addressed to magistrates. The case cited and
relied on hi Six F. Kelly *mons where a mandamus was applied
for against the justices sit Kent;calling on them to make a
rate, which the magistrates refused to do. A mandamus
was applied for and granted, but there was nothing in that
case to show that each en assumption of authority bad say
reference to ecclesiastical matters. In the case AMT. Smith,
reported in "Adolphus and Ellis," also one of mandamus
and prohibition, alter appeal to the judicial council, the
court refused to receive even a petition suggesting
that a wrong decision had been come to by the privy
council, and Lord Chief Justice Denman refused, on
the ground that the court ,nould not assume an au-
thority to compel other cqurts to reconsider their
judgments; the other judges, Littledale and Path-son,
concurring in this decision. The same decision had been
come to in the Court of Exchequer, by Mr. Baron Parke,
who laid down the same principle of law. But the cases
of mandamus against magistrates were so numerous as to be
quite familiar to the court, and he would only cite one or
two of the most appoute cases, one of which was in " Adol-
phus and Ellis," VII., p. 127, " Exports Pratt;" which
was a case for quashing a conviction which had been
appealed from and confirmed by the court below,
the application being made on the ground that evi-
dence had been illegally rejected. The Court refuted
to great the mandamus, element,. stating that there was no
ground for so doing. Having said so much upon this point,
he would not runner trouble the court, but would ooatent
himself with the general argument' upon which his oat"
reseed.
Dr. Addams then rose, and said that, in the absence of his
, learned friend (Sir F. Kelly), he was unexpectedly called
upon to &Urea' the court.; and, that he feared he
should not be able to do justice to the case,
as he was unprepared to enter upon the argu-
ment in full, having only expected to be called upon
to sustain the case of his learned friend; and he must also
observe that be had not calculated upon being called upon to
address the court that day. On thou grounds, therefore, he
claimed the indulgence of the court whilst he stated his
reasons in Support of the rule for a mandamus. In moving
the court for the discharge of the rule, the learned attorney-
Renee I had is the first place relied on the fact that the pro-
ceeding' of the archbishop or of his representative, the
vicar-general, were merely ministrative, and that the
proper remedy for any informality or irregularity
was not by way of mandamus, but by appeal to the proper
ecclesiastical court. He would proceed to deal with that
part of the learned attorney-general's argument first, ad-
dressing himself subsequently to the remaining sections of
his speech, Now, with respect to the ministratiu sets of
the Archbishop of Canterbury, or rather of his repre-
sentative, the vicar-general, the construction put
upon that pert of the proceeding was argued by
the learned counsel to depend wholly upon the unseen.-
don put upon the 'mute of Henry VIII. It was contended
by the other side that the act of confirmation was merely
ministerial on the part of the archbishop's officer, and that, es
it might be dispensed with under certain circumstances,
so it was not as essential or necessary thing to be done
before proceeding to consecration of the bishop elect.
But, for the purpose of introducing this argument, the AP
torney-General bed entered into a very elaborate and learned
disquisition on the ancient mode of appointing bishops an-
terior to the establishment of the preterit law. Ile. (Dr.
Addams) would not trouble the court upon that part
of the argument, but he would say a few wordy upon
what the course of proceeding in such casts was
anterior to the establishment of the canon law, The
tin: ion of bishops, then, previous to the canon law being
promulgated, was vested conjointly in the people and the
clergy. In the process of time the people came to be ex-
cluded from perlieepation in the election, the nomination of
the bishop resting with the clergy; at a later date it became
vested in the diocesan, and later still the king assumed the
sole right of naming the bishop.,_ When the statute of
Henry VIII. came first into operation, the clergy alone had
the appointment of bishops, and the learned attorney.
general bad cited Blackstone and other writers to
prove so common and obvious a proposition as that
the appointment of bishops was now vested in the
crown. That was clear enough, but it was not
quite so clear that the crown possessed the power of
making a bishop ; and whea the learned gentleman as-
serted that a bishop could legal) exercise his functions with-
out having been previausly coo and that the person
or persons confirming him were not competent to
inquire into his fitness, he (Dr. Addams) must
observe, with nape ct to the armament that the prerogative
of the crown was inveved in the question, that It might as
well be said the pr. mettles would he attacked if, after the
crown had nominated a clerk to a vacant living, the bishop
of the diocese were, in the exercise of his functions, to inquire,
previously to inducting such person, whether he was fit and
proper for the office. That would be as much an attack on
the prerogative as in the case under consideration; tied yet it
was of every day occurrence. Now without calling the pre-
rogative of the crown at all ia question, what the supporters
of the mandannui said was, Wit at all times, and under all
ciresanstances whatsoever, whether theelection of the bishop
was the act of the pow* and &WI of the eletZ alone,
at al the king,whaflallffila hietatlffer Mob poseur
of elation was rested, the arm mains was iasawfrkbe lambi k
bat baseiswassormated yawallemseisa. Ike liaannese.
dew proseededh....y
jawVoi
estotweetrWliolitsk dark
~imeeeeYe sated en.:
rithis proceeding was rialrdell hi the
progierjudkial authorities, in a compete* oust, Where all
perms were to be cited and entitled to be heard, if they ap-
pend; after which, if the opposition proved invalid, the bishop
was entitled to consecration. If the course of proceeding
was in the order which he bad laid dowa—sad that it ten se

win le the establishment of the lance law, was obvious I
hem s..psmege is Juatinisa, who expressly said that the'
bishop gut is to
.undergo • delsy.oL.Omm months
prior to being Do consecrated, in order to allow
of time for inquiries Into hi character and qualifications
ter the ofiles-Lhber wild ft bi maintained that oonfirmation
was • rite utterly umpired by the existing law ? The au-
thority of Juatiniaa waubstere, but, es swain* into the
Mena law, there weld be found no lack of evidence
that anfirmatien was an aunt& and indispensable
sits. AU the old writers .° canon law had so laid it down, and
it w fee the sthe side Se show that the roles so laid down
by thou prise is the tints of Henry VIII. bad not been en-
meshed epee thereon law, which had greened the church
mdlesquerat to the Beicensation, before the court could enter-
tain their arguments. The doctrine he (Dr. Addams) laid
down had ohms bees emoted before, and it had almost been
adopted into the Corrals:is Canoseci, having obtained the
sanction of Paul. The learned doctor then reseeded to
quote the text of Lesendleens in support of his argument,
when the attorney-general signifieddhat he could not fled
the quotation in the copy of that writer, from which he had
himself read extracts during his argument.
Mr. Justice Coleridge—What Is the data of your edition,
Dr. Addams f
Dr. Addams-1584, my lord.
The Attorney-Casual observed, that his edition was
dated 1768.
Dr. Addams, in continuation, said he relied on the text,
and not on the glossae. Without citing Van Espin and
ether authorities oa the canon law, he could not put that
law on • higher footing that, upon that of Lanoellottus; and
then came the question, whether the canon law so laid down
had been, at the time of the Reformation, part of the law of
the land, and still so continued. On this he referred to the
dictum of Blackstone with refereuce to the provisions
of the statute 25th Henry VIII., cap. 20. But on
precedent this had been shown to be the case. The
case of Crammer had been cited. No doubt he had
been elected under magi stool!, which had then
crept into practice. The confirmation of Crammer
was made by the Pope, at the expense of 900 golden
dual, paid for the eleven butlis.under which that confirm-
ation was obtained. He (Dr. Addams) was not prepared
with any other case in the time et Henry VIM • and in the
time of Edward VI. the qualm of election and confirm-
ation of bishops did soupier to have arisen ; but, at this
commencement of the reign of Queen Marv, the
confirmation and consecration of Cardinal Pole was
conducted in the 114110) manner as now. But in
the reign of Elizabeth there were documents which put the
present question beyond all doubt. It appeared that the
forms adopted on the confirmation and consecration of the
first protestant Archbishop of Canterbury (Parker), had
been followed to the present day. The history of that pro.
reeding was recorded in the fable of the "Nag's Head Con-
secration," and it was fully recorded by Burnet, Swype,
and Bramhall ; and all these showed that the mode of pro.
ceding in their days was the same as in the days of Arch-
bishop Parker, with the exception that, in modern cases, no
witnesses had ever been sworn and examined in proof of the
libel and the summary petition, which were now considered
to be proved by their production. In Parker's case two wit-
nesses were examined to prove his fitness; and, with regret
to the Bth article, there was in existence an absolute deposi.
tion, on oath, by the half-brother of the archbishop elect,
and a person of the name of Tulwin. This was material, as
showing that in these early days a full examination was
gone into at the confirmation.
Mr. Justice Erie What is the date of that proceeding?
Dr. Addams f On the 9th Dec., 1559, which was alter the
passing the statute reviving the act of 24 Henry VIII.
By the canon law he (Dr. Addams) submitted that by
confirmation was meant the trial and examination of the
clerk presented for consecration, though he (Dr. Addams)
had no means of showing the mode of inquiry into the hie
and conduct of the bishops elect in the time of Edward VI.;
but it was singular that in Henry the Eighth's time all bishop •
rim were in the gift of the crown, but afterwards abandoned,
and the form of conge d'aire and confirmation adopted. It
might be said that these were mere farms, but
he contended it had arisen from the desire of
the metropolitans in those days to examine into
the fitness of clerks presented fur consecration. lothe form of
ordination of deacons and priests, persons were invited te come
in to oppose, though the learning, morals, end fitness of
those presented for ordination had been inquired into by the
archdeacon. But in the form qi the consecration of bishops,
there was provided no such invitation to the congregation,
and the only opportunity of doing so waist the confirmation.
The Attorney-General interposed, and said be could fur-
nish the date in Parker's case accurately from Steyr. The
conge d'aire issuedthe 18th July, in the first year of the
reign of Elizabeth. There was no letter missive. The elec-
tion took place on the Ist Aug., and en the 7th December
the confirmation was fixed for the 9th of December, on
which day it took place. And then, under his own hand,Arch-
bishop Parker stated that he was consecrated on the 17th of
December, 1559. Thus it seemed that more than twelve
days had intervened between the cringe d'ilire and election,
and more than twenty days had elapsed between the election
and the confirmation.
Dr. Addams resumed ; He had no doubt thou dates were
correct, but he must remind the court that Burnet showed
that in Parker's case there had been letters missive.

The Attorney-General : The Lot is differently recorded in
Strype, who speaks of a congi &aim leaving tt to the dean
and chapter to elect a man devout to GA, and woeful and I
faithful to the Queen and her succession..
Dr. Addams thought that nothing material would turn on
that point. He returned to consider the statute 2.5, Henry
VIII., which provided that the conga d else* named the
person to be elected. It was said that such a cotvi (dire
was a command, which left no choice to the dean
and chapter, and if they disobeyed, they would incur
prietnunire. From that opinion, though expressed by
Bishop Gibson, he (Dr. Addams) most humbly differed. If
the crown had a right to give a positive command to elect
Dr. Hampden to the see of Hereford, it bad not been done
as shown in the form of the conga trilire and the letter mis-
sive. By the letter missive they were not called to act on
their alkgiance, but Dr. Hampden wet named and recom-
mended for election. Th, retort, the refusal to elect would
not incur prwmunire, but would leave it to the crown to
nominate and appoint. Again, be contended that if the dean
and chapter had elected, under that letter missive, any other
fit person than Dr. Hampden, and the crown had approved
such election, it would have been good. As to the form of
confirmation, he referred to " Leslie's Case of the Regalia,"
p. 109, showing the election of Hugh Follett, a Bihop of
Hereford, in 1219, without letters missive from the king.
This appeared on an inscription in Ledbury Hospital, and
it proved that the bishops were elected, sometimes with.
out and sometimes with the recommendation of the
crown. If the supremacy of the crown were such as contended
for by the attorney and solicitor-general, Queen Victoria
would be, as said of Elizabeth, neither mare nor less than a
" Woman Pops,"—(laughter)—for she could net only ap
point but make bishops. This he denied, and contended
there existed no such supremacy in the crown. In sup-
port of that position he cited " Hooker's Ecclesiastical
Polity," book 8, chap. vii., page 524. The learned
doctor quoted Hooker, to show that while, in the form
of appointment of deans and priests, there was an invi-
tation to all persons who had any objection to the appoint.
meet to state such objection, there was no such invitation, tar
even permission, in the consecration of bishops. He also
referred to Bishop Andrews and Stillingtleet, to show that
the crown claimed not the supremacy heretofore assumed
by the Pope, nor the power of the , keys in eccle-
siastical matters, but simply the governmental prero-
gative and general superintendence, of old time exercised by
the imperial authority of these realms.
The court at this point intimated to the learned counsel
that it would hear his further arguments to-nu.rrow.
The court rose at half-past four.

PROCEEDINGS THIS DAY.
At the sitting of the court this morning,
Dr. Addams resumed his argument it. support of the rule.
He observed that in what he had yesterday said he had en
deavoured to establish the supremacy of the crown and not
the supremacy of order, He had also shown that the con-
firmation of a bishop wu a judicial act before and since the
Reformation—that it was so unner the canon law,
and was now so tinder the common law. The
whole question turned on the construction of the i
' act of Henry VIII., for if the act of confirmation were merely
a ministerial act, failing to do which the archbishop would
incur the penalties of a pr.temunire, it was clear no manda-
mue would lie • but if, as he contended, the archbishop'acom.
missioners had, in this respect, mixonstrue d the statute, f
then the rule must be male abalute. The 23rd of Henry
VIII. was pared for the purp Be of repressing certain coke-
done made by the Pope f. r bulls confirming the eleetion of 1
bishops. The subsequent act (the 2.5. h of Henry VIII.) laid
down the mode of el, ction, ant gave the crown the power of '
nominating. It also provided that, in case the election did '
not take place, the cr....mt should appoint by letters patent.
This act of confirmatien was necefeery only in the case of an
' election rfter nomi. ation ; and .n the case of presentment,
it was provi.led that the archbishop should consecrate with
all speed, without suing for an) bulls or order from the see
of Rome. Here there was no mention of confirmation, nor
could there be, as ennfirmation formed no part of the pro-
ceedings ; but it did not meeseartly follow that the archbishop
was not to ioquira into tee fitness of the person to be conse-
crated, nor that hi. doing so would be any interference with
o.e King's prerogative. He sow came to the case of an elec-
tion, and much Amor bad bun Laid upon the provision of the
act, that, if the election task place within twelve days, it
should stand good to all intents and purposes; and it had
been asked what was to be done if consecration was refused ?
There was no power of nominating anoth, r person, and that,
if not confirmed, Dr. Hampden would remain the
lord bishop elect. lie contended that the election✓
was an incohats act, and required to he completed. '
lf, between the time of election and confirmation, the person
elected became a Roman catholic, or became insane, wu the
archbishop to proceed to consecrate ? Was the person
elected to be confirmed lied oonsecrated, even if he were
. brought into Bow Cburch in charge of a lief per and in a
strait waistcoat ? Welt, the statute went on to provide that,
the fact of election being proved by the corporate seal of the
dean and chapter, and the oaths being taken, the archbishop
I must proceed to consecrate. Bat confirmation was • judicial
as well as a ministerial set. The pains and penalties arm-
' attire couldunder the statute, be incurred , acepted ter
le OD not,
some act done to the derogation of the power of the
crown, and in maintenance of that of the Pope. No such
act was involved in the mere inquiry into the fitness of a
Lertiiaprmenteh for eon
such afirnsation.diwiThed act
are its
nevi;
Francis Mason, an authority on this subject, who wrote di-
rectly after the paring of this sot, laid it down that all ob.
jecton should be summoned, mod that when it was proved
judicially that the election had been properly made, and that
the ppeerrerr elected was qualified b 7 lemming and piety, the
archbishop was to proceed to coolies's. This, said Francis
Mason, was the mode of making bishops in England. It was
not to be inferred that the confirmation was to co on with-
out some such inquiry ; or, if on inquiry it ehould turn oat
that the party was not properly qualified, that the required
form for completing the election should be carried out.
Lord Denman. Pray who was Francis Maur ?
Dr. Addams sadeeelood be was a dergyieaa at pest

learning, and& great authority on the subject. The learned
gentleman proceeded to quote Archbishop Bonner and
other writers, in support of tae view taken by him, and as
showing that before the Reformation it had been always held
that the laity as well the clergy had the right to except
for unfitness, and that., on proof of such unfitness, the
archbishop had the right to make the election void, by re-
fusing to confirm. Thee, too, had also been the view take&
scene the Referroatioa mid an instance in which oppositionhad not only beeWthreatened, bet actually carried out, was
to be found in the case of Bishop Mentagae. He would not
read this case again, but impress upon the court that Dr.
Rives in that cue only refused to go into the case of the
opposers, on the ground that the exceptions were not made
in due form ; admitting, therefore, that, had they been pro-
perly tendered, they must have been received and intuired
into.
Lord Denman : It did not appear what anthority Dr.
Rives had for laying it down that the exceptions must be
made in writing, and by a proctor.
Dr. Adams : According to the practice of the ecclesiastical
courts, all exceptions must be made in writing, and the party
must appear by a proctor.
Mr. Justice -Erle asked whether the practice was, that no
person could have a locus etandi in the ecclesiastical court*,
except he appeared by a proctor.
Dr. Addams : The party must appear, either by proctor
or in person. He would, however, direct their attention to
another authority in regard to this case of Bishop Monta-
gue, vie , Bishop Godwin. This writer, in his "Life of
Bishop Mootarne," had clearly shown that it was his opinion
that the penalties of minnows would not have been in-
curred by the archbishop, had he, on sufficient cause shown,
refused to consecrate ; and also that the laity, as welt as the
clergy, bad a voice in the election and confirmation of a
bishop. (The learned gentleman read the passage from Bishop
Godwin, is which this opinion appeared.)
' Mr. Justice Coleridge observed, that in the case referred
to, it did not appear that any inquiry as to the nature of
the objections bad been made. The inquiries instituted
after the confirmation were merely of a formal nature.
Dr. Addams: Still the nature of the objections no doubt
transpired. Jones would take care that they should be
known in the same way as had Mr. Guttridge in the case of
Dr. Lee, the other day. And, with refuted to this recent
can, he would observe, that then the unfirmation ems by
oonnthelen ; but in the case of Dr. Hampden—though the
contrary had been argued by the other side—there was, in
fact, no commission. In the case of Dr. Lee, a commission to
confirm had been issued by the Archbishop of York ;
and what then took place at the time of confirma-
tion was this: On objectors being cited to appear, Mr.
Gutteriehre presented himself. The vicar-general first in-
quirod his name, which he gave ; then, what was his pro-
fession 1 which he also answered. Next he was asked where
he resided 1 To which he replied, Birmingham. Then se-
veral iaterrogatories were made, he apprehended for the
purpose of bringing out the fact that he had no particular
interest in the matter—that, in fact, he was rot even an
inhabitant of the diocese to which Dr. Lee bad been elected.
Then he was asked if his exceptions were in wri•ing. He
said they were, and he tendered them ; and, after all this,
the case was disposed of in rather an snomejous manner, by
the vicar-general telling him that there was an end to the
objections, as they were not tendered in due form, but
adding that, if they had been, they could not have lean en-
tertained, for the commissioners were obliged to confirm or
incur the penalties of prentunire, and confirm they did.
A strong Use in justification of the present proceedings,
was that of the famous Dr. Clarke, who was suspected of
Arianism. An opposition was prepared, in case ha should
be nominated by cong d'ire, but the neceentv did not
arise. A similar instance was the case of Dr. Handel!, dur-
ing the last century. He was recommended to the bishop-
ric of Gloucester, but the curate of St. Anthony threatened
to oppose his confirmution in Bow Church, and this with
the approbation of his bishop. But the bishop, fearing a
preemunire, dissuaded him. However, in cousequenca of
the threatened opposition, Randeil was not elected, but ob-
tained the bishopric of Derry, in Ireland, where ere was
neither election nor ooufirmation. The whole history of
Randall was published in a pamphlet of the time, bearing
the sit]. el " Doctor Codex." Having explained the regular
coulee of proceeding respecting a caveat, the learned doctor
proceeded to say, that no one could pretend to affirm
that the proceedings in the case of Dr. Hampden
were not regular and judicial. It rwu a perfectly
regular proceeding to apply to that court. They
had been cited to appear before the vicar-general,
had appeared, were refused a hearing, and then
they had no remedy but the preseat application fee a man-
damus. The learned doctor here recapitulated the recent
proceedings in Bow Church on the election of Dr. Hampden,
and the reason which had been given by the vicar-general
and Rescuers for refusing the parties opposing, a heering.
He contended that the reasons for refusal were not Do much
dread era prtemunire, as a fear of violating the statute lsw.
These were the proceedings which the licrned Solicitor Ge-
neral had called ade usion, a sham, and a shadow. (A
laugh.) Wee the congi deuce a sham and a shadow 1 Was
the confirmation a sham and a shadow? He agreed with
the learned gentleman that the election was a sham and a
shadow' and that the sooner that sham was swept away the
better. But the learned gentleman had not alluded to another
sham and shadow, in which parties were cited to appear,
did appear, at great trouble and expense, and when they
appeared they were refused a hearing.
Lord Denman: They were called contumacious if they did
not appear—that was no sham or shadow; but when they did
appear, they were refused a hearing.
Dr. Addams: Exactly so. In hi, opinion the learned
solicitor-general should bring in a bill, ordaining that eoa-
firmation of bishops should always be held on the lit of
April, and when the parties cited appeared, let them be
silenced, and it would only be following the old custom, and
making April fools of them. (A laugh.) The attorney-
general's second objection was, that the proper course of
proceeding would have been an appeal. They had been
promised cues in which parties had appealed, hut that pro-
mise had not been kept. The objection had not been for.
toted by any case,. He contended that by the practice of the
ecclesiastical courts the parties bad no remedy by appeal. The
proctor for whom hei appeared had tendered his allegations
to the assessor, who told him that be could not give in an
allegation until he had established his right to appear. lie
was refused appearance ; none was recorded, and consequently
there was no possibility of appeal. He had been counsel for
Dr. Lee, and in that case he should have insisted on in ap-
pursue being entered when an appeal could have been
lodged. He contended that in this case there could be no
appeal, nor any remedy, unless a mandamus were allured to
issue. The second objection of the Attorney-General was
that the Court of Queen's Bench had no means of ineestiga-
ties, and that at all evenu the inquiry could not be:termi-
nated within twenty dale, the time pointed out by the
statute. On this part of the ease their lordships had been re-
(erred to Oughton to show that the vicar-general lad no
contentious jurisdiction. The peonage stated that the Vicar-
General had no contentuous jurisdiction, except in cues
which were not contentious, Such as the conhunation of
bishops. The only rational meaning of this passsge was, cases
which were not conteatimu in themselves, hut might become
so, in extraordinary circumstances. In such case the juris-
diction of the vicar-general ceased, and thee what remedy
was there for the parties ?
The Attorney-general, interrupting the learned doctor,
said he understood that, during hie abeence„his learned friend
had repeatedly carte d that there was no commission. There
it was (handing in a document), directed to Drs. Burnaby
and Lushington, and Sir J. Dodson, "our commissioners."
Dr. Addams was wiry that he had been mieinformed, but
he had never heard of the commission before. The learned
qcuoontetenadtedlentLetht
therefrom wtehree prolegomena
of
Pl:posmeethilii;:h'daantlthere was an aleclute ne rutty for in-
In cases of natural hindrance, such as sickness, it was mon-
o( this nature being completed within twenty days.
qmodwilif2;:feessur
of a oriemunire. Allusions had been mode to the grounds
to suppose that a delay would incur the danger of a
on which the opposition to Dr. Hampden was tounded. It
had been asserted en lb. other aide that the apposition was
founded on two books, published some years ago, and that
the head and front of Dr. Hampden's arum* was his having
smarted that dogmatism in religion was attended with danger
and inconvenience. But that was not all. The objector'
alleged that, in the" Bampton Lectures," the rev.doeterspoke
in derogation of the Book of Common Prayer. Surely, if
that were true, there were some grounds of objeetion.
Dreadful injury might result to the interests of religion and
of society if the court were to refuse the mandamus in. this
cam ; for the consequence would be, that both laity and
clergy would be &peeved of all means of objecting
to the confirmation of a hiship, no mutter how strong
their grounds of objection might be. The metropolitan would
be obliged to confirm within twenty days, under hekvy pe-
nalties. On the other hand, what reasonable objection was
there against the issuing of • mandamus—what injury scald
?cult from its being issued? Supposing it granted, the
parties would go to trial in due form before the Archbishop
of Canterbury, in the Court of Audience, where the sus-
pected unsoundness of Dr. Hampden's doctrines would be
put to the test. If they should come out of the searehing
ordeal munched, the learned doctor would take his seat on
the bench with greater sat sfactim to himself and benefit to
the public: while, if unsound, the result would justify the
application of his clients, sod a new election must take place.
With respect to this part of the case he had not mush to
say, se he preferred leaving it to the learned counsel who
were to follow him; but he could not avoid saying that the
caw, cited appeared to him not at all to bear upon. tie pre-
sent application. In all those cases there were maw of
appeal, but in this there were none. The leaned doctor pro-
ceeded to quote the case of " Lucy v. Bishop of St. David's "
In that we a mandamus did not lie. And why ? Because
the allegations tendered were rejected. But it the present
ease they were not permitted to teuder any adegetions, and
'there was no remedy except by appeal, and in the present
case it seemed to him that a mandamus was peculiarly ap-

plicable.
Mr. Stephens said he would offer oaly a few observations
on the statute of Henry VIII. and the right a the cou* to
great a miusdamus. After quoting the sth section of the
statute, the fumed gentleman contended that the power of
consecration was not conferred on the arthlanhop, because
that passer was in hits already. Bp the 7th station he was alib-
i jecW tothepenaltiesof a peesnuaire if he refused to conse-
crate, but it was only in case that bia seismal was
The reason for limiting the time to twenty dojo was to do
away with the interference of the pope in making bishops
which was the great aim of the aunt. of Hasty VIII.
Then the question arose whether the act of oonserrauoir Mss
ajadleial or a ooininterial ow. He contended that the
salmsfieg of the performance of a certain duty ley set ofbs
limo& did not make it ministerial. Upon sentence
bisAsep became an ecclesiastical judge,
trrine able statute, a *luta' peer eh°. Aad tele Mein
it was whisk was celled on the other idea mere shearer
The learned gentlemen referred to 17 Viner's
meat," page pap 229, title "Prerogative of the Hist ;"
kel4, 11. title Lush., Iteperuaium." 110;
" Codex," 104, in order to Moss that the
archbishop had the power of meting judicially. the
submitted that, when the parties were in flow Church,
they ware performing' a judicial duty, and ought to have
heard say person who had Objettiollll to make. In thio
the perdu waked to he allowed to make objections. Bat, so

far from being allowed to do ea, they mem ma even allowed
to appear. In this case there was aria theidhat denial of
judos ; and it wee distinguished fromEemes where an
appearance was allowed. Now, with , ahem of
mandamus, one mineral principle was *Piths ethehat
aim of the court in netting it mashie piewilif *ode&
The court always issued e mandamus. to the *NM ei Wirier
courts when they refused to give judgment in MOB OW
which they had cognisance. For this positm, *enema a
*et of authorities:-4 Barnwell and 17,,,,,,wen, egg ; game
ease, 11 Coke, 98; " xis;
.„ fisher, 3 Bury..., 1,
TbC gentleman also quoted" The King v. the Bishop
Of Lincoln," 2nd Term Reports ; and " The King e. the
Bishop of Ely," 6 Term Reports, 447, to prove that the
mat Might tone ei mandamus to compel • palmate maths
tisitpriel power. It was said oa the other sile *alai
Church Discipline Act was • bar to the issuing of a meethe
mus, because it imposed a penalty if the act required' fir be
done was not performed.
Lord Denman: Yea need not enter into the dismal. of
that point.
Mr. Peacock followed on the same/ side,
ofdan said that by
the canon-law • power had been allowed making caller
lions. And the question was, whether that law had bees
altered by the statute of Henry VIII., and whether it was
compulsory, in all cases, and under all circumstances.
on the archbishop to confirm and consecrate the bishop duly
elected by the dean and chapter. The question was, whe-
ther, by the 7th section of the statute of Ilenry, it was meant
that, if the archbishop refused to confirm and consecrate air
cording to law—that was to say, if he wilfully and converag
refused to consecrate, or if he refused to confirm and mem
crate, unless there was a legal and valid objection to lie
doing so. He understood it was admitted on the other side
that the GUM law was not allowed in violation of, or in pee-
Judie* to, the prerogatives of the crown. But in the time when
the statute of Henry VIII., chap. 19. was peasedjt was not the
prerogative of the crown at all to compel the archbishop to
consecrate. It would not then in those days have teas eon-
Mary prerogative to the of the crown if the aseh
heard the opposers in this case. But thou the 20th c
was passed which, itwas contended, compelled the smith
to confirm at all events. It was clear that, whatever the law
was as to confirmation, it was the tame as regarded canines.
tion. The question. was then, did that statute of Henry
VIII., chapter 20, intend to compel the archbishop to
consecrate the bishop, under all and every circumstance,
although he might know that the prion presented to him
was not worthy to be consecrated ? He was not now alluding
to theobjections in the present ca-c, because he apprehended,
whatever might be the nature of the ejections, it wee
for 'the archb question,isho to determine whether they wen
good or not. The therefore, wei, ought the oppo-
sers in the present case to he heard, and if they ought te be
heard, would a mandamus go to compel the archbishop, who
bad pronounced his decision, not on the moon law, but on a
misconstruction of the statute of Henry VIII., to hear
them. It was said that every power which belonged
to the pope was vested in the sovereign of the
country. If a person not of the age of thirty
was presented to the archbishop, was he compelled
to consecrate ? It was perfectly clear that the king had
not the same power as the Pope.
Mr. Justice Erie : The same power to dispense.
Mr. Peacock apprehended that the King could not dis-
pense with the age of a bishop, it being enacted by statute
that a bishop should be of the age of thirty. Again, was
the archbishop bound to consecrate a person a bishop, if he
knew hiesho be guilty of a crime—such a crime, for instance,
as would beyond all doubt insure his deprivation from the
archbishop. If be had been found guilty of the crime of
perjury and a person who wished to object came forward
with the legal documents which proved it, would the
archbishop be bound to consecrate him ? In the cons.
cation of bishops one of the questions to the archbishop
was," Will you b• faithful in ordaining and in the laying ou
of hands." Haring promised to ds that was he to lay his
hands on a person whom he might have actually seen com-
mitting a crime, or whom conviction for committing a crime
might be placed before him, or if he did not do'
so was he to be subject to a pneotunire. It wee not con-
sistent with reason that sueh could be the meaning of the
statute, and it must follow that its meaning was, that he was
to consecrate, unless there should be a valid objection to the'
consecration. The proctor made affidavit in the PAS that
he was provided with all the necemary documents, but he
was stopped by . Lushino, who said that he could not
be permitted toDr bring in •n libel, not being allowed
to appear. Thus a definitive sentence was pronounced,
to the effect that the court was prohibited by the
statute from delaying or refusing confirmation. The
decision, therefore, was not that the objections were not
valid, but that the statute precluded them (the court) from
entertaining such objections. Suppose, at the consecration
under that statute, that the archbishop, is the courts'
of his duty, asked if the candidate believed is
the Holy Scriptures, and the bishop elect answered
" No," would the amhbiehopAte bound, under penalty of a
pnetnunire, to proceed with the consecration under such
a circumstance ; or, suppose the record of a conviction against
the bishop elect were produced to the archbishop at the time
of consecration, would it be contended that the ceremony
ought to proceed, under the penalty ? He (Mr. Peacock)
maintained that it could not.
Mr. Justice Coleridge ; Have you made any inquiries with
respect to cams of pnennutire, and what the practise has
been ?
Mr. Peacock had done so, and cited a statute of
Henry VIII., whereby the person pleading a papal bull
was held to be subject to priemunire, save in certain
specified cases. The authority for this was a note
in " Bacon's Abridgement." The practice, in cues
of priemunire, was to plead to to indictment,
which was laid under the statute, as was shown in " Co.
myn's Digest " and in " Dyer's Reports." Now, an in.
dictotent against the archbishop for not consecrate ng in the
owe scummed, would urge that be (the area bishop had in-
curred the penalty of pnemunire by refusing to perform
that rite ; to which the plea would be, that
the bishop elect had declared his disbelief in the
Holy Scriptures; and that plea, he (Mr. Peacock)
contended, would be • sufficient answer to the indictment.
It followed, from various other arguments, that:putting a
reasonable construcien on the statute of Henry VIII.,
the pramounire was not incurred, if • fair and reasonable
cause for refusal to confreres were given. If the dean
and chapter refused to nominate, the crown might do so,
but the crown had so power to confirm or consecrate. That
was the office of the archbishop ; the meaning of the statute
therefore neceesary implied that the latter had some power
of judging of the htnesa of the candidate for confirmation and
consecration. On referring to the commission it would be found
that the archbishop directed his representatives to confirm
only in no far as they found the election good, and it did not
command them to confirm, at all events and under all cir-
cumstances. It had been argued that the remedy in the
the present case, was by appeal. But parties who were not
allowed to appear could sot appeal; for there could be no
ground for such appeal, inasmuch as no decision had been
given on the cause. Had such decision bees given, then
en appeal might lodge, not to the Court of Queen's
Bench, but to the court above ; but the complaint herein
was, not that • wrong decision had been come to, but
that the parties had not been allowed to appear at all, there-
fore they sought their remedy by mandamus, in order that
by the authority of the Court of Queen's Bench the arch-
bishop might be compelled to hear and decide on the merits
of their oppo-ition. When the archbishop had done so, and
given his decision, the Court of Queen's Bench could
interfere no further, for the appeal from the archbishop's
decisien was to another authority. The ease al-
ready referred referred to by Dr. Addams, reported by
Raymond, was one where a mandamus to
the Prerogetive Court was refused, on the ground that the
person applying was not solvent. But, at the nine time, it
was laid down, that if the Peclesiaatical Court refused to
grant letters of administration or probate of a will to proper
parties, the court of Queen's Bench could, by mandamus,
compel that court to hear the cause, though not to
grant probate. The case that had been referred to
so often, that of "Lacy v. the Bishop of St. David's," showed
that the remedy that existed was by appeal to the court
above, and not by mandamus ; and other cases,
quoted on the other side, would be found to
have precisely the s tine tendency. The comedy asked for in
the case under consideration, was not by way of appeal, but
for a compulsory order from the court to the archbishop, to
hear the parties.
Left speaking.—The conclusion of the argumeat will be
published in a Second Edition.

MADRID, JAI,. 18.

In the senate yesterday the report of the mixed
committee of both chambers, relative to joint stock com-
panies, was approved. Then the bill on the jurisdiction of
the senate as a lewd tribunal was read for the first time.
Nothing of interest occurred in congress.
I mentioned in a late letter a document which had been
*ailed for in the Chamber of Deputies by Mon, in answer to
a 'huge contained in the statement of Pastor Dias, on the
aosuaation of Salamanca. It appears from this paper, which
aow lies on the table of congress, that ne analogy whatever
exists between the pardon granted by Salamanca in the Ali-
mat affair and the proceedinc of Mon. A tradesman of
Alicia, informing against himself, had, it appears, made an
application to Mon to be allowed to pass through the custom-
house some goods arrived for him in the port of Alicant from
Marseilles. Pert of the goods, which were prohibited, had
been landed and smuggled into the interior ; the rest were
spoiling. The affair being referred by the minister to the
direction of customs, that office represented the considerable
gain which would accrue to the revenue from the admission
of the goods, and on the other hand the evil of compromis-
ing an affair of this kind with smugglers. Mon therefore
hatted this order, which is now before the house, to admit
the goods at the highest rates of duty upon foreign articles,
but to prosecute the smugglers.
The news from Catalonia, which still gives notice of
bash.fightine, seems to contradict the positive statements
of Pavia, in his despatches, concerning the complete extinc-
tion of the native.. The troops near Solsona had still
work on their bands, and had had several engagements with
fragments of rebellious hands between the sth and Bth.
On Sunday night General Zambrano, Ferdinand Vll.'s
Minister of war and senator, died.
The son of the Infanta Luise Teresa and the Duke of
Musa was baptised on Saturday. The ceremony took place
in the Queen's apartments, where an altar had been pre-
pared for the occasion. The Queen and King were sponsors,
and among the twelve names bestowed on the royally-
descended infant the leading ones are Francisco de Asis
Maria Isabel Fernando. The court mourning for Madame
Adelaide was suspended during the festive day, and renewed
sm Sunday.
l'hs new road from Pamplona to Bayonne being complete,
ha diligence. from Madrid will take that line. Beyond
yaragon, the roads are so infamous through Arragon and
C ' that the diligence. are oto be exchanged
kr light cart., that passengers may bole to proceed.