The Express.
London, England, 1867-08-15 00:00:00

rums TO BENIPlati.

THS BIOBT Op BISHOPS TO REPUSB IN TI•

The following are the opinions of the judges on
the question of law propounded to them in the cause of
" the Bishop of Exeter and another, plaintiffs' r.
defendant" error). The judges present at the hearing
were, Mr. Baron Martin, Mr. Justice Willie, Mr. Justice
Blackburn, Mr. Blazon Pigott, sad Mr. Justice Lush.
Mr. Justice Blackburn.—My Lords,—l have the honour
to deliver the int opinion of my brothers Pigott and Lush
and myself. In answer to your lordships' questionmoti
that, in our opinion, the judgment on the whole
ought to be given for the pkiintiff. Our reasons for this
opinion are as follows:
The right of the patron ie an advowson is a temporal
right of property, the exercise of which, however, neinum-
rily attecte the cure of souls. The clergy in early time
wished to establish the doctrine, in favour of which, no
doubt, a good deal may be urged, that the cure of souls was
of the higher nature, and that, as the temporal right of the
patron was but an incident to the institution to the care
of souls, which, according to their view, belonged exclu-
sively to molesiastioal cognisance, the jurisdiction as to the
temporal rights of the patron was necessarily drawn into
the spiritual court. But this doctrine was successfully
resisted in England by theorem and the common lawyers;
and since the Statute of Westminster the 2nd, chapter b, at
all events if net before, there can be no doubt that the
patron has the right to sue in guars impedit in the tempo-
ral court to enforce the institution of his presentee, and
the ouster of any clerk wrongfully instituted ; and that
the bishop must, if be defend. the suit, by plea show the
maim why he did not admit the clerk presented by the
patron, and that of the sufficiency of this reason in point
of law the temporal mart is to judge.
There is no doubt that the law is that the patron ma
present no one who is not a it person, and that the bishop
is entitled to inquire whether the primates is a fit person,
and, if be is not, is bound to reject him. But in the plea
in qusre impedit it is not enough for the bishop to say that
he thought, or even found, that the clerk presented was
not a fit person ; he must state positively that he was not
a fit person, and must state in what respect he was not fit,
with so math certainty and particularity as will enable the
court to judge whether the objection is one which, if trait
in fact, renders him unfit, and will enable the patron to
take inane upon it if he ditputes the truth of the objection.
It it nut material is the present case to inquire what(
degree of certainty or particularity in the plea was requi-
site ; probably sines the abolition of special demurren that
question will never again be raised. All that is important
for the present case is to point out that the uniform course
of pleading, from the earliest times, has been based on this
—that the finding of the bishop never concludes the patron,
bat that whatever be the objection which the bishop
thought fatal it is examinable and traversable in the tem-
poral court. This, we think, has never been disputed, and
it is not necessery to refer to any further authority in sup-
port of it than the tad institute, p. &fit.
After an elaborate examination of the authorities, the'
learned judge continued :
. .

The giatiite of Westminster was passed mainly to glee.
patrons an effective remedy
i when the bishop had is-
truigcd the patron's right by instituting a clerk not prti:_
semen by the patron. It has been followed by a kmi
sense of decisions, establishing that the bishop must, 1
order to defend himself in a quire impedit, allege tl at the
clerk preser ted was in fact not fit, and that this is tracers:,
able. Even were the bishop knows of his own knowledge
(or thinks that be knows, for it is to be remembered that
he is fallible) that the clerk is crindnosus' though he may
refuse him on that ground, yet in his plea he must 'mere
positively that be is oriminosus, in order that issue maybe
taken thereon. The whole scheme of the law in fact is
framed to secure that the patron may have the right in every
cased having the bishop's conduct examined,and that hie
decision shall never conclude the temporal right. We
think it repugnant to this that such a condition as is con-
tended for should exist. _ _

In the early times, when, if at all, this condition must
have been introduced, the whole of Europe was of one
communion, and if a priest was ordained at one of the
foreign universities the testimony of the bishop of the
diocese in which that university lay would be as essential
as that of an English bishop. Is it credible that when
the common lawyers and the legislature were so jealously
guarding the rightsof the patron against his own bishop,
by providing that nothing he did should conclude the pa-
tron, but all be subject to review in the temporal court,
they should have loft those rights completely at the mercy
of the foreign bishop, who might not even be a subject of
this realm, and whose refusal to grant a testimonial would
be final!

It ie clearly established that the bishop cannot defend
himself by saying, " I believe the clerk to be unlit, and
therefore I did not examine him ;" but that to make •
good plea be mast say. he was opal. sal-tirpt allipmeala
traversable. The contention on the part of the opponent
is that be may plead that the foreign bishop does not even
say he is unfit, but only does not choose to certify affirma-
tively that he is fit, end this is to be a good plea, though
there is no power whatever to compel the foreign bishop
to give such testimony, or to render his reasons for refus-
ing it : it is no plea to my, " I think him bad:" but it is
a plea to say, " The foreign bishop don't choose to say he
thinks him good." We think thus so repugnant to the
whole policy of the law on this subject that it would re-
quire the strongest authority to establish such an anomaly,
and, as we have already pointed out, there is absolutely no
authority for it.
For these reasons we give our opinion that the plea is
bad in substance, and that being so, the special verdict
ought to be found for the plaintiff, unless every part of
the plea is proved, which is not the case.
If your lordships should, contrary to the view we take of
the case, think the plea good, it would become necessary
to consider the validity of the replication, which, in the
view we take of the plea, is immaterial.
Mr. Justice Wines anal Mr. Baron Martin presented
judgments in accordance with the foregoing.