The Sun.
London, England, 1848-01-27 00:00:00

JONES V. ROSE.-SUDGMENT.

The LORD CHANCELLOR also gave judgment in
this case, which came before him upon appeal from the
judgment of the Vice-Chancellor Wigram. The
main question in:the cause was, whether the plaintiff
Jones had not, by neglecting to pay the calls, for-
feited 150 shares in the property called the Rosher-
ville-gardens, at Gravesend. The Vice-Chancellor
directed inquiries before the master, with which both
parties were dissatisfied, and both therefore appealed.
The Lord Chancellor thought the course adopted by
the Learned Judge was a perfectly correct one, and
ordered both petitions of appeal to be dismissed with
costs.

THURSDAY E VENING, JANUARY 27 1848.

damus would lie in this Court, addressed to the
Archbishop calling upon him to proceed to the busi-
ness of consecration ?

Mr. BADELEY apprehended not. There were seve-
ral accounts of confirmations in the records of the
Archbishop of Canterbury which showed that wit-
nesses had been examined and cross-examined in
support of the charges of opposers at such confir-
mations.

Mr. Justice COLERIDGE—Were the witnesses cross
examined by an opposite interest, or by the Arch
bishop's officers ?

Mr. BADELEY believed it to have been a sifting
by the officer of the Archbishop, not technically a
cross-examination.

Mr. Justice ERLE—Can you cite any instanf:es in
which the opposer has appeared and examined the
parties ?

Mr. Baneeer could not cite any such case at
present. But what he contended for was, that wit-
nesses had been examined upon oath npon such
occasions. The affair had not, therefore, been con-
sidered as a " sham" in the timeof Archbishop Parker,
neither was it so considered in the time of Wickliffe,
for in the " Life of Wickliffe," by Strepe, p. 253,
there was an account of the proceeding's at the con-
firmation of that Archbishop, where opposers were cited
to appear tied witnesses examined. The process was
not a " sham" under Crantner, Wickliffe, or Parker,
neither did it so appear in later times. case 0,
Evans v. Asketh, in the time of Charles 11., was not
considered by the judges as a " sham." Bishop Fell,
about the same time, did not so treat the subject; in
a note to the Epistle of St. Clement, published in the
year 1699, he said " that the confirmation of the
bishops of England was according to the customs Of
the Primitive Church." Aylin, in his life of Arch-
bishop Laud, speaking of the confirmation of Bishop
Montague, said " that it was the ancient custom of
the archbishops to confirm in the church of St. Mary-
le-Bow, Cheapside, and to cite all opposers to appear
aid make their objections, or for ever after hold their
tongue." Dr. Nichol], in a supplement to his " Com-
mentary cn the Book of Common Prayer," stated that
" it is an impudent slander to state that the bishops de-
rived their power and authority from the King ; the
King can only do what belongs to kings, and the
bishop what belongs to bishops ; the King issues his
cong."! d'elire ; after the election has been made by the
Dean and Chapter, parties are cited to appear and
state their objections to the form of election, or to the
person elected, and when those objections are heard and
judicially decided upon, the bishop proceeds to conse-
cration." Surely upon all these authorities the Court
could not consider that this proceeding was all a
" sham ;" would they not, on the contrary, believe it
to be a reality, and a most important reality ? Charles
11., in the year 1681, and William 111., in the four
years of his reign, were so fully convinced of
the importance of appointing proper persons to the
office of bishops, that they actually appointed a com-
mission to inquire into the qualifications of the person
nominated by the Crown, and the exercise of this
great care on the part of the Crown to appoint proper
persons might possibly have accounted for the small
number of cases which had occurred of opposition
since the date of those commissions. Now, it was
well known that great changes in the mode of admi-
nistering justice was actually taking place. The
Sheriffs' Court had, almost lost all its jurisdiction,
and it was but a few years since that the public were
astonished by the appearance of the mode of " wager
of battle," which had slumbered for centuries, and
after a very long argument in this Court it was
decided that " wager of battle" was not a " sham,"
but a reality. It was not to be supposed
because a law slumbered that therefore it was
only a " sham." Such laws were a reality, and their
power only lay dormant till it was necessary to call
them into existence. His Learned Friend Mr. Hill
had said, somewhat scarcastically, " What a distress-
ing state Ireland must be in, where the bishops are
not confirmed at all." Now, it was a matter of his-
tory that Dr. Randall was appointed a bishop a few
years since, but it was found that he would not be
able to stand the ordeal of Bow Church, and he was
therefore made an Irish bishop; it would therefore
be probably much better for Ireland if this mode of
public confirmation were used with respect to Irish
bishops. Ile denied that this was a question affect-
ing the Reformation. That great event was not a
transfer of infallibility and despotism by a mere
change of persons. The doctrines put for-
ward by the Reformation, and recognised
by statutes, was far different from that.
The principles of the Reformers were completely
identified with those of the parties who now prayed
the Court to make the present rule absolute. The
24th Henry VIII., c. I`2, distinctly stated the duties
of the Archbishop and of the King, the one to appoint
and the other to examine and confirm. Coke was an
authority also in favour of that view of the case.
Was the prerogative to be exercised to the injury of
the subject? Was it not frequently the case that
letters patent were repealed on the ground that the
Crown had been deceived ? and was it not monstrous
to suppose that infallibility should alone attach to the
prerogative in its exercise in the choice of a bishop?
If the prerogative was for the benefit of the subject, was
not the present proceeding rather in aid of the prero,a-
tire ; for was it not for the benefit of the subjects that
proper persons should be appointed as their bishops ?
There was no injustice to the bishop in the opposition
that was brought forward against him; he had ample
grounds fur meeting the charges. A bishop was not
appointed for his own benefit. God forbid ! He was
appointed for the good of the Church. The weltare
of the Crown, the State, the individual, and the
Church, all required that the investigation should be
gone into fully and completely. It was quite possible
tor the Prime Minister to appoint any person
whose moral conduct was unknown to him, and
was it not right that an opportunity should
be afforded for investigation. Ile believed
that a layman might be consecrated a bishop per
saltum without going through the various
inferior grades, or without even subscribing the
Thirty-nine Articles. Such a person would then be
a judge of doctrines in the whole of his diocese, and
exercise an entire control over the habits and fortunes
of his clergy. Was it not preposterous that such a
state of things should exist? A Prime Minister re-
maining long in office would be able to fill half the
sees of the country, if no inquiry were to be made,
by Unitarians, Rationalists, or Presbyterians, or he
might even go so far in opposition to the Reforma-
tion, as to fill those sees with persons nearly allied to
the Roman Catholic religion. If the rule were re-
fused, and the construction of the other side agreed
to, the effect would be to annul entirely the power of
the Archbishop—he would be a mere machine,
possessing do more power than the veriest
clerk in the Home office who male out a
copy of the patent for the Crown. He would be a
tool for the purpose of regulating these elections.
Was it not absurd to suppose that the power of the
highest dignitaries in the Church could be thus trifled
with ? The present question was one of great im-
portance ; it was not so much whether Dr. Hampden
should be a bishop or not, but it was the interests of
the Church which were in jeopardy, and, trusting
that the Court would look at the question in that
light, he entertained a fervent hope that the Court
would make the rule absolute.
Sir F. KELLY then rose to address the Court.
Nothing less than the commanding importance of
this question could induce him to occupy their Lord-
, ships time upon a question which had already occupied
so much time. Except the whole of their Lordships
should feel every point in this case clear and free
from doubt, he felt satisfied that their Lordships
would imitate the example of the wisest and greatest
. of their predecessors, and abstain from giving a final
determination upon a question involving such great
considerations, and such consequences, upon a mere
motion for mandamus upon affidavits, and put it into
such a course of inquiry as to submit the whole ques-
tion involved to the highest tribunal in the kingdom.
The question involved beside the prerogative of the
Crown, alluded to by his friends on the other side, the
character and efficiency of the Church and its most
exalted ministers, the respect and reverence
in which they were henceforth to be held, the
confidence which henceforth should be reposed in
them by their entire flock, the people of this country ;
moveover, not the temporal interests, for that were
little, of the clergy of the diocese of every bishop,
but he eternal interests of the vvh de community of
this country ; and it was such an important question
as this that the law officers of the Crown prayed their
Lordships to determine finally, upon a mere motion
on affidavit. He fully admitted the right of the
prerogative of the Crown to nominate a bishop for
li
• election, he had no wish to invade that prerogative ;
but, on the other hand, there were other rights in-
volved. The confirmation of the bishop was placed
in entirely different hands. But it had been said that
this ceremony was a mere frivolous form ; if it were
so, he was at a loss to know what. other part of
the proceedings were not also liable to the same
charge ; the proceedings with respect to the election
by the Dean and Chapter might also be termed a
frivolous form. The rite of confirmation was not
however of so entirely a frivolous nature, it was first
enjoyed by the Apostles under Divine direction, and
continued throughout the early ages of the Church
to be exercised as a most important event, and he
defied his Learned Friend to produce a single case in
which any Bishop had ever been ordained except by
ecclesiastical authority. The apostolic direction to
Titus with respect to confimation had been carefully
followed by every church in Christendom for a
period of 1,700 years, and it was this rite which was
now denounced as a mere idle ceremony. Lancelot-
tus, Ferraris, and Van Espin had alluded to the cere-
mony of confirmation, and the authority of these
foreign jurists had been acknowledged by Ayliffe,
Linwood, Gibson, and Burn, writes of this country,
and though diflerences might exist as to the mode of
confirmation still it was always in accordance with
the principles laid down by these jurists, and