The Express.
London, England, 1850-05-28 00:00:00

Eland derives great wfirmatisa testa tfa ohnemellanes that,
netwlthstandiesg the gnat interest We we has excited, sad
the post shinty and industry that Ins bsen exershed is the
gonna of h thu Visaed bee vestsuggested
that my Induce bee occurred sea appeal to tee
eeavo-
ealisa. The several cuss of appeal to the &knew are
to be adverted to. There is a ease el the a King e
" which was an apt= by the Kirsg's preemie on
of the crow to On delegates, said is Melds on the
nag of May, 1677, maw. was Peen. Toe pial wee
Mord beton Wyk!, then a judge elf the Queen's Bench ;
Aeldnsoe Bann of the Ezebequer, sad Eve civilians. It
ritthis there was a enema remitting[ the came,
e's Prieto, dieseuthig. The ease of w The King v.
Elbow" was beard in Febresry sad March, 1696, before
Toeby, Chief Justice of the King's Bosch ; R.,keby and
Tuna jedgea of the Common Pleas; Ozendon, judge of
the Mahn Oleart; Hedge., judge of the Admiralty ; and
three alviilleas. The frown claimed to be entitled to the
OW &owed upon theigronied alibis having died
aPesil.ell2or without leaving kin. One party claimed under a
nuncupstin will, and another party claimed under a written
will. The doglike of the Prerogative Court was in favour
of the written will. The King appealed from that judg-
ment. The ease wee heard before the delegate., who also
pronounced for the written w.ll, end affirmed the
seetence of the Proropative Court. The ease of
The Kis, v. Tens and others " wee heard on the 3rd
of Febeneui, 1695-6, before Sir William EMI, Knight,
and hear 'Wiens. The =own in this ow also claimed the
geed. of ea Westina upon the absinthe of kin. The ow had
Loon heard before Sir lodine &Bayne, the judge of the Pre.
negative Court. The King's proctor appealed from the sen-
tinel loth. &tiptoe; all parties appeared without objection
thejuisdistion. The cue wee heard before the delegates;
but the 11.111111 did not appear at the bearing, and the sen-
tinel" wee dinged. The case of " the Hinge. Weedon and
BMW " was heard the sth of March, 1697, before the Chief
MEOW of the King's Bench, a judge of the Kiss's Bench, a
=2;of the Common Nese, the official minima of the
Court, the Judos of the Admiralty, end three eivi
Wm The ass related to the effeets of Francis Le Payee,
who was • native of France, but who died in London,
left
a will bequeathing various legacies to alien
end appointed his brother, John Le Peyre, sole
onemene asd reeiduery legoeme, and in ease of his death
being the will should be meented, he appointed Merlon and
Shales ezioneses. The mown claimed that administration
should be 'wind to its nominee, by reason that John Le
Parsorlie had been oppiated executor and residuary legatee
bad died, melt the ether legatees were all sneak". Weedon
sad Shales appeared and prayed for probate to be granted to
them, and the Jades of the Pieregative Court deuced ad-
ministration with the will d to be granted to Weedon
and Shales. The King's preetor appealed to the King in
Chancery, and the case was heard by commission before the
delegates, who pronounced for the appeal, and condemned
Weedon and Shales to 20f. expenses. John le Peyra died
before the will was executed, whereupon probate wee decreed
by the judge to Weedon and Shales. the executors. In the
caw of "Waller v. Smith" and 0 Heseeltine v. Burgh"
Phillimore, 110), the crown claimed the goods on the ground
ttat Newport had died intestate and was a bastard. One
party propounded a will and claimed an execution ; another
party claimed u next of kilt, on the ground of intestacy.
The crown claimed to suspend the proceedings as between it
and the next of kin, until the suit between the next ol
kin and the executors should be determined. The court
ordered the proceedings to go on in put passe. The ease
wait afterwards heard before 8:r W. Wynn, the judge of the
Prerogative, on the 4th of December, 1792, when he de-
creed letters of administration to Waller and Smith, sur-
viving executors of James Smith, one of the next of Ws of
the deceased. The King's proctor appealed to the delegates
and the parties app-Bred wi mut objection to the jurisdic-
tion. The meal libel of appeal and process were brought
in and an allegation was afterwards brought in by the King's
proctor in support of the shim of the crown. The del.- I
gate s, at the prayer of the respondents, affirmed the
sentence and remitted the cause. The King's proctor not
appearing, sad having our the 20th of Ju1y,1797, declined
further to prosecute the appeal. The delegates were Mr.
Baron Thompson and certain civilians. Then is another
ease to which reference should be made, that is the ease of
" Waldron v. Pollard," 3 Dyer, 273 a, which hes been re-
ferred to by the name of " Goodman's cue." In that
use the crown hail nomottod Gas:adman Dmn of
the cathedral church of Weill, who afterwards so.
eepted the prebend of Wyveliscombe, in the
same church, and, in consequence, was subsequently
deprived of the deanery by the bishop by virtue of
the King's letters patent of the visitation of the
dean and chapter there. Gonda:at appealed from that sen-
tence to the Archbithcp of Canterbury, who affirmed the
sentence of deprivation, and, in consequence, Goodman
appealed to the King, aced the two previous sentences wen
affirmed, and of course under a commission of delineates
In the reign of Mary, a commission, at the suit of UJO
was rented before delegates, who reversed the two
sentences which had been pronounced, and restored Good-
man. Turner. who had been appointed to the deanery by
King Edward VI. upon the deprivation of Goodman, and
who bad himself been dem ived hr the subsequent eenterthe
of the delegates in the reign of Mary, in the reign of Elisa-
beth obtained a new commission to delegates, and under
that commission the sentence to which Goodman bad been
restored was reversed, and Terrier was restored. Subu-
quendy, upon the penile= of Goodman a further commis-
sion was granted to other delegues, who affirmed the lest
preceding sentence; after which Goodman died. It ap
peered that Goodman had granted certain lees:s, and two
questions arms in the cause—first, whetter Goodman was
aean at the time when he granted the leans • secondly, I
whether the leases required coeflrnation by the King ? I:
has been Bid that the cue is not perfectly intelligible, and it
may be so in (presto reopens ; bat whatever ambiguity may
appear in respect of some parts of the cue there es none iu
regard to the facts which have any bearing upon the present
ease, end they are, that the crown was the patron of the
deanery, and bed app inted Goodman, and that upon his
(Goodman) being deprived, he appealed to the archbishop,
and afterwards from the archbistep to the King,upon which
appeal the sentences of deprivation were affirmed, which
affirmation must of course have been by delegates. Th:re
were three subsequent appeals against the sentences of (ie.
privation, end elf to the delegates. The first appeal was in
the reign of Edward VI., a period very proximate to the
passing of the statutee in question. The second was in the
time of Mary, during whose reign the statutes of 24th and
25th Henry did not exist and the third and fourth appeals
were in the reign of Elisabeth, in the first year of whose
reign the statutes in question were re-enacted and revived,
and this ease must hove occurred soon after the revival of
those statutes, and the case itself, containing the statement
of those appeals to the delegates is reported by Lord Chief
Jostle. Dyer, to whese authority Lord Coke refers in his 4th
institute, which has been cited, and who became Lord Chief
Antic,: about the time the revivieg statute pused, hasiug
been a judge some years befere. The first reported case,
therefore, that has any relation to the question must have
occurred some time before the 10 h of Queen Elisabeth ;
and the last cue, In the year 1792. The cases referred to
excepting "Goodman's case," it will be observed, al{
occurred in causes testamentary, being a elate named
in the 24:h of Henry VIII , e. 12; and yet the
appeals, tieing after the 25th of Henry VIII., were male
to the delegate* and not to the convocation. This course
clearly would not have been pursued if the 9th sectien of the
24th of Henry VIII. had been deemed to be in =roe to toe
exclusion of the appeal given by the statute of the 25th of
Henry VIII. to the King in Chancery ; and if such o es the
oonstructien in relation to the enumerated causes in the
statute of the 24th a fortiori, the appeal in the present case
to the delegates, which is under the aattority of the statute
of the 25th, is free from ohjectlon. All the cases which
have been nerved, except the last repotted, 1 Phillthore,'
p. 170, occurred when the court of the convocation was in'
more active operation than it h been in modern times, and
were heard before eminent judges; and it connot rea-
sonably be doubted that reference must have lieu
had to the statutes fn question nod their true con-
struction consitered, and that either no doubt was enter-
tained that the stapes!' to the Delegates were well
founded eves though the crown was touched by them, or
that the construction mint have been discussed and deter-
mined upon judicially. In either view they are consisteot
with the cometruetion now seupted by the court, and them.-
Mina with any other. In the case which is r-portei in the
Ist Phillimore, Sir William Scott was the King's A Ivecate
who appealed en his behalf, ens of the lest persons likely to
have prosecuted an appeal en behalf of the crown to a wring
tribunal, or to have been unacquainted with the statutes in
question. In support of the present application, is addition
to the arguments offered upon the construction of the sta-
tutes, it was stated that there was a succession of authority
in text books, truly said to be of great authority; but it will
appear in fact that all the weeps cited guile genially to
the time of Lord Coke are refirrible to the sin:le authority
of the 4th lost., and meet, if not all of th. ea, expreesly
for to it ; and it Appian to us that the effect of the son ral
passages quoted boa not been correctly appreciated, and that
upon due attention they will not be found entitled to the
reliance which has been placed upon them. It as recusant,
therefore, accurately to examine the eff.ct of the pelages in
the 4th Inst., and it will appear that Lord Cote detailed
successively the provisions of two several acts of parliaments;
and what Lord Coke then stated as the provision of one
statute, the subsequent text writers have adopted no the joint
result of both statutes—a result upon which Lord Coke him-
self expressed no opinion. There are several passages in the
4th Inst. relevant to this subject. The Ant is to be found in
chap. 74, p. 333, under the head of Courts of Convocation.
In the margin, the "24 h Henry VIII., rap 12, and 41st
Elizabeth, ate 1," are noted ; and opposite to these statutes,
and plainly only refining to them, the text states " if any
cause 'ball depend ill coutenti n in any eoelniastidal courts,
which may or shall touch the king, the party grieved shall or
may appeal to the Upper House of Convocation." And it
Is to be observed that this passage, which refers to the 24th
Henry, inaccurately states that by that statute If any cause
shall depend touching the king,
that g. apaptealosahualtle be
artpolkthseoUnfypetor
House of Convocation, wi.e
retain elutes of coupes there enumerated. The Ist Elisa-
beth, chap. 1, Is only referred to, because it repealed a re-
pealing statute pusai in the rapt of Philip and Mary, and
revised the 24th and 25th of Henry VIII.. and other
statutes. In page 337 of the 4th Inst., under the title
of the Court of the Arches of the Arehbishop of Canter-
bury, after speaking of the Judge of the courr, the text
states—" He bath ordinary jurisdiction in spiritual Callelle
in the first Whines, and by eppeal throne+ the whole
province o. Canterbury, es it appearellt by the statute
of '24th Henry VIII. this. 12, and from this Court of the
Arches the amid is to the king in Chancery by the said
Let of the 25th Henry VIII." It is to he observed that
in this pump which refers not to ore of the a:litotes cde,
but to both, the appeal is stated to be to the King In
Chancery fa general terms, and not as subject to any
restriction in eases that touch the king. In page 339,
under the heed of " The Court of D 1 RM.'," and conse,
quantity of Appeals, there is noted in the margin the statute
25th Henry VIII., chap. 19, and the text opposite shoo,
" That the court sits upon appeals to the king en Chancery

it thins sateme--hest, who manna is given la any noir
denisal cause by the archbishop WI hie edictal; pissed
trim ay sentenes is glens is ay emieeleancol cause in
exempt ; thirdjy, whoa a menu. is given in the
iert." Thus the three dames of cause an
womed es *dist to the same meal with as exception. it
Wag Isles eliehme diet the seal son
third elms have ne
ethane n the Curt of Convocation. Is meths/ ponce'.
pogo 339 Lard Coke Mates, " that as appeals are
is eats of parliament, k will be pertinent es set the
resolution of the judges and el the loused to emissindied
law, which dab sum op is what ousel, hem "MS eau%
sad in what time appeal's» to be mad*, end Ober
insidente esuessing the same as Lard Dyer nearmi
own hand bath reported." And after this passage, under the
bend of appeals, fi sited in the margin the etstute of 2tek
Mary VIII.. chop. 12: And " that in causes testes's-
levy, ate., sequels from tee arehdaeo to shall be to the
Wisp, sad from the bishop to the archbishop, and sits
ibether;" end proceeds under the word " item from the
mehdeesine er eommissary of the archbishop to the Amine,
Oa" Opposite to this passage, in the margin, were the
weeds "nos infra, this is altered by the statute althea 2601
Henry VIII ,in the next page." Then follows " item,
' when the matter toecheth the king, the appeal is to be
made to the Higher Convocation House, and no farther, bet
to be finally there determined." Then. again, there is
quoted hi the margin, " 26th Henry VIII., chap. 19," sad
oppoeits to that quotation in the text are the words "a
genera prohibition that no appeals shall be pursued oat ef
the realm to Rome or elsewhere." " Item, a genera onus
that all manner of appeals, what matter solver they inneus,
shall be made in such manner, form, and condition within
the realm as it is above ordered by the 24th Henry V 111., in
the three causes aforesaid, namely, from the archbishop'.
court to the king in his chancery, where • commistUa
shall be awarded for the determination of the said ape
peal, and from thence no further." And, again, in the
ought is a note, " see the page precedent. Item, that
perms exempt shall likewise pursue their appeal la the
chanceryart supra, and not to the archbishop." lhe
author here has merely been setting down the effort
of statutes in snocession ; and who re he 'peeks of
appeals I. the convocation it is under the head of the statute
24th Henry VIII. It was not understood when the motion
was made, that the wasp a then read refereed to particular
statutes, noted in the margin, and in fact there is no pussy
to be found importing that an appeal to the convocation is
' given in any cue whatever under the 25th Henry VIII.,
'chap. 19. Such are, it is believed, all the passages In the
4th Inst. The next authority referred to was " Baron's
Abridgment to the Beclesisetical Courts," letter (B.) "Of
appealing from Inferior to a superior church." It there
states "that by the 24th Henry VIII., chap. 12, from the
archdeacon's church the appeal is to the h shop, but when
the cause is commenced before an archdeacon, or any arch-
bishop, or his commissary, the appeal is to the Court of
Arches." It is then stated, " that by the 26th Henry VIII ,
Amp. 19, the appeal from the Prerogative Court Ii to the
King in Chancery, who appoints delegates by commis-
sion to hear and determine the appeals; and it stems
the same statute, that an appeal from the Arches
la to the King in Chesney." There is a reference
I. this last paragraph to the margin, and there is
there a note stating, " That by the 24th Henry VIII., chap
It, such appeal is t be to the archbishop, and sou the 4th
Inst. 341." The test then proceeds thus: -" Also by the
25th Henry VIII , chap. 19, appeals of the Court of Peru-
liars
or places exempt shall be henceforth into the Chancery
if the matter concerns the King the appeal must be to the
Higher Howe of Convocation." In the mugin is quoted, as
the authority for this statement, 4th Irish 339-40, which,
as has been oh d, does net purport to be an authority
that appeals under the 25th Henry VIII., touching the
King, are to the Convention, ;but rather the contrary; and
is Bee. Abr., In the pue.ge preview to the statement
referee' to, when 'peaking expressly of the 2.5 th Henry
VIII., chap. 19, it is said without qualification. " The appeal
from the Prerogative Cann is said to be to the King in Celan-
say ;" and under the head of the " Court of Delegates" then
h a paragraph setting forth the 4th section of the 26. h Henry
VIII , chap. 19, in terms without any qualification what-
ever in regard to the epee al there given from the archbishop
to the King in Chancery. The only passage, therefore,
in this bee& which gives colour to the argument is the short
paragraph stating -" If the nutter concerns the Kies the ap-
peal must be to the High. r H mu of Convocation," and which
voters, Is before mentioned, to the puseges in the 4th Inst.
Ooteyne' Digest has also been cited; title, " Convocation,"
letter (D) " The Jurisdiction," it is there stated, " in causes
seelesiutical, if the King be c mcarnt d, there shall be an
appeal to the Upper House of Coavoestion." This passage
also refers, en tt.e authority, to the 4th feet., 339 and
349, end to the title " Prerogative" (D 15). Under this re-
ference *Teen to the conveeation is spoken of, and under
that letter, the 24th Henry VIII , chap. 12, alone is n fared
to, and which correctly states that by teat statute, in causes
tsetamenery, or of marriage, divorce, titles, &e., which may
touch the King, the appeal shall be to the Upper House of
Convocation. Neither of these passages, therefore, when
oreurately examined, are authotities for the po,ition for
which they were cited. Under the gams head of " Preroga-
tive," In " Cornett," title "Appeal" (D 13), the statute of the
24th Henry VIII. is referred to, and after spooking of the
appeal given by that statute, it state', " It the King be con-
cerned, the appeal shall be to the Cow House of Convoca-
tion," and refers again to the itilt Inst., 339 40. But the
neat paragraph is, "and by the 2.5 th Huey VIII. chap. 19,
appeals shall he made in the same manner in all causes of
what nature soever." This paragraph is by no means nee. B.
eerily to be aiseeiated with the paragraph immediately pre-
ciedieg it, but may be well sa heed by its being referred to
the statute of the 24th Henry VIII., so far u the
manner of conducting appeals is re guilt d, especially es
under (D 14) both statutes are referred to, and the fourth
section of the 125th Henry VIII., and the sixth section of the:
statute are quoted without any quelifierion or restrictions
whatever in regard to causes touching the king ; but, on the
century, immediately after the statement of those two sec-
tions it is stated, " and therefore in all ecclesiastical causes
a appeal lies to the delegates." Upon the whole, therefore,'
' C. B. Cony es is by no twins an authority that the appeal
la the present case did not lie to the delegates-rather the
contrary. " Wooddesou's Lectures" was also referred to, eel
1, page 76. The author, in speaking of 25:h Henry VIII.,
chap. 19, and of the Convocation and the king's right to pro-
rogue and dim Ave it, proteeds,-. By the same prerogative
thy king is the ultimate judge in matters and causes
attics!. If, indeed, the cause affect the king, an appal may,
by the statute of the 24th Henry VIII chap. 12, be brought
to the Upper House of Convocation." Thus, speaking as
if by that statute an appeal to the Convocation was given
in all cases which, as before seen, was never the case. He
proceeds-" Tide provision does not seem abrogated by the
subsequent statute of the 25th H. nry VIII., chap. 19, by
which apocele are to be made from the Archiepiscopal
Coale to the king in Chancery ;" and reference here is also
made to the four dation of all these extracts, the 4th test ,
page 339-40. The authority of this passage referring only
to the 4:11 Inn., before observed upon, cannot be deemed
tattled to any weight. "Burn's Ecclesiastical Lew" was
likewise mention. d. In that bet le, under the title " Appo .1,"
In page 63, the second and fourth nations of the 24th Henry
VIII., ch:p. 12. are eat oat also with a reference to 4th Inst.
339. In page 69, the 26th Henry VIII., chap. 19, secs. 3 and
6, are set cut, and in page 61 the fourth section of 26th Henry
VIII., chap. 19, is set oat, followed by remarks on the tub-
jut of areal, but which contain no suggestion of any limi-
tation or nstriteion in any we whatever upon the appeal to
the King in Chancery. le page 63 the ninth section of 24th
Henry VIII , chap. 12, is set out with reference to 4th Inst.
339-49, but without comment. Immediately afterwards the
sixth s.cti .e of 25:1e Henry VIII , chap. 19, is set cut u an
asiversal proposition with a reference to • note at the foot,
Mating-" l'herefore in all realealutical causes appeal lies to
the ddegatea.-4th Inst. 339." Thue passages are all that
ON to be found in " Burns" applicable to this euhjeet, and
the result neon to be that it is an authority rather 'genet
the ereument than in support of it. Refe-once war made to
Blecketone," vol. 3, p. 67. That author, in relation to the
statute 25th Hiner VIII., states that that statute was but
doeleratory of the ancient law of the realm, and refers to
4th hest. 311, and then add,-" But in can the King him-
self tarty in any one of thou suits the appeal does not lie
to him in Chant. ey, which would be absurd; bat by the
statute of the 24th Henry VIII., chap. 12, to ell the
bishops of the realm assembled in the Upper /loose of
Convocation." This statement refers to the 24th Henry VIII.
and the statute of the 25. h Henry VIII , chap. 19, is roe-
fined to in this and other pumps In " Blackstone " gene-
rally, a:.d in p 65, is speaking of the Court of Peculiars, he
states : " All scalesiastical cause garish,/ therefrom in which
an appeal lay formerly to the Pope, now, by the etatate
of the 2.5 th Henry VIII., chap. 19, is to the King in
Chancery." And again, in speaking of the Prerogative
Court, it is Mated: "An appeal Su by the statute of the
26th Henry VIII , chap 10, to the King in Chancery instead
of to the Pops as formerly." This passage is unaccompanied
by any qualification, yet in the passage in p. 67, when stating
the 'Fled Is to be to the Convocation in any 'Atha. suits
enumerated in the 24th Henry VIII. reference is made only
io eppeals under the 24th Henry VIII , and nothing is
said mop :eting appeals arising under the 26th Henry VIII.,
or of the effect of the 26th II nry VIII. upon the opined'
under the 24.6 Henry VIII. Blackstone in thus referring
to the statutes gives no opinion whatever except upon the
9th gee. of the 24th Henry VIII., upon which, taken by
itself, no &Oat has ever been entertained. It is unwary,
therefere, to consider what would have been the weight of
en opinion, if expressed, as compared with the practice
which has prevailed. In Stephen's edition of " Blackstone,"
vol. p. 433, the pussge in " Blackstone" before relarred to
is set out in the following manner:-" But in Oalli the King
himself be party in any of these suits, the appeal did not then
lie to himself in the delegates, which would have been aboard;
but by the statute of 21th Henry VIII., chap. 12 ie given"-
theta the following passage Is i t blacken-. [to all the
bishops in the province assembled in the Upper House of
COLT veneer ; and the editor then proceeds to state-
" By the 2nd and 3rd William IV., chap. 92, it is now pro-
vided that every person who might fornial!y have appealed
under the 25th -Henry VIII., Chap. 19, may now spud to
her Majesty in Council; and by 3rd sad 411 William IV.,
chap. 41, see. 3, and 6th and 7th Victoria. chap. 33, tee. 11,
that her Mejesty shall, by order in council, direct that all
appeals ham ealniestioal and other courts shall be referred
to the Judicial Committee of the Privy Council." This pat-
sage cannot be referred toss any authority, whatever respect
is due to the very learned editor ; bat ht.; opinion as to the
effect of the recent statutes is intimated with sufficient dis
tinetneu. Ayliffea Perergen was also cited, but the ref*-
, ernes was not please, and the only puert, that appears to
lily./ any anylicatlen is in pages 83, 84, where the statute of
the 24th Henry VIII. only is mentions'. In page 83 the
statute is mentioced, and it Is said that, for aveadieg delay,
and appeals in causes testementery, matrlmonisl, tithes, &c ,
which cowmen Ills King, or any other penun, the some
should be formally determined within the King's jurisdic-
tion; and then, eller the regulations of the statute as to the
order of appeals, and the tim within which they are to be
made, he proceeds-" And if the cause or mitt concerns
the King the party grieved may within 16 days appeal to
the prelates assembled by the King's writ fa cionvoestke