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

THE CASE OF THE REV. DR.

lIAMPDEN.

GO URT OF (2 UEEA'S BENCH, Jan. 25.

(Sittings in Banco, before the LORD CHIEF JUSTICE,
and Justices PATTESON, COLERIDGE, and ERLE.)
VIE QUEEN V. TILE ARCEIBISBOP OF CANTERBURY.
(Continued from our Afternoon Edition of yesterday).
Dr. BAYFORD proceeded to say—When the Court
looked at the power of theVicar-General, who took part
in such proceedings, they would find that it exactly
bore out his views of the case, that the Vicar-Ge-
neral had no contentious jurisdiction, and that the
proceeding of confirmation was only a pro forma one.
In support of his opinion, he would refer the Court
to the authority of Houghton on the subject. -Lord
Coke, in his 4th Institutes, page 357, said, with
respect to the Court of Audience, " this Court is held
in the Archbishop's Palace, and meddleth not with any
matter between party and party of contentious juris-
diction, but dealt with matters pro forma, as the con-
firmation of bishops' elections." Clarke, in the year
1599, said that the office of Vicar-General was
executed in the Court of Audience at St. Paul's
Church, but that confirmations and pro forma matters
ss ere carried on at Bow Church, as was stated in the
affidavits of the other side. The Learned Doctor then
called the attention of the Court to the case
of Thorpe v. Mansell, reported in the Consistory
Reports, in which Dr. Haggard gave judgment,
founded on the assumption of the connexion of the
Archhbishop's Vicar-General with the Court of
Audience. Suppose this mandamus were granted,
and the parties were to appear before the court at Bow
Church and give in the libel which they said they had
drawn up, containing a charge of suspected erroneous
doctrine, the next step would be to go through the
libel read to see if there were any grounds of oppo-
sition. The parties to the case would then be the
Dean and Chapter of Hereford v. the op-
posers. The bishop was out of the question,
he was merely a by-stander, and; it would be placing
the bishop elect in a most difficult position, and he
would have to answer that he was a man of piety, and
great modesty would prevent the bishop, the words
of whose motto should be " nolo epicopari," from
challenging his opposers to prove the contrary.
Then the next step would be to prove the
statements of the libel ; witnesses would have to be
called and cross-examined, which would occnpy days
and days, and the commissioners would have no
power to enforce their attendance, or compel the
parties to put in an answer to the suit, or to enforce
their sentence when given. It would be out of their
power to do substantial justice unless all the parties
were disposed to come forward and offer no obstacle
to the progress of the suit. Then the witnesses on
the part of the Dean and Chapter would have to be
examined with respect to the charges, and it would
be perfectly impossible, if the. Court should sit
diem in diem, and parties employed constantly
writing out their evidence, and all willing
to forward the inquiry—it would be found
perfectly impossible to have the inquiry com-
pleted within the time which the statute limited for
it. The statement contained in the libel referred to
certain matters contained in books published in
1836. With regard to any charges that could be
brought against the Bishop upon that ground, he
would be protected by the Church Discipline Act,
the 12th sec. of which stated that " every suit against
any such clerk in holy orders for any offence against
the laws ecclesiastical shall be commenced within two
years; after the commission of the offence in
respect of which such suit or proceeding
shall be instituted, and not afterwards." The
23d section also stated, "Be it enacted, that no
criminal suit or proceeding against any clerk
of holy orders for any offence against laws ecclesi-
astical shall be instituted in any ecclesiastical
courts other than before instituted and provided." So
that upon the question of time and place the Bishop
was fully protected. He would refer the Court
to the Institutes of John Paulus Lancelotus,
which had been frequently referred to by the other
side. Irving in his " Introduction to the Civil Law,"
speaking of the writings of that person, said that they
were commenced under the approbation of Pope Paul
V., and occupied 15 years in writing. The writer lin-
gered for two years in Rome, in a fruitless endeavour
to obtain the sanction of Pope Pius IV. The only
favour, however, that he was able to obtain was, that
his "Institutions" should be added to the Corpus
without any grant of authority. It was clear that his
writings never obtained in this country, or were re-
garded as authority: In the preface to Burn's Ecclesias-
tical Law, page 26, speaking of the ecclesiastical law
of England, and the mode in which ecclesiastical law
was to be extracted from the materials with which it
was mixed, said, " Therefore the business upon this
head is to inquire what is the canon law upon any
point, and then to find out how far the same was re-
ceived here before the statute, and then compare
the same with the common law and the sta-
tute law, and with the law concerning the
King's prerogative, which is also a part of the
connuon law, and from thence will come out the
genuine law of the Church. How they invented the first
of those two points they were in complete darkness;
with respect to the canon law, they had nothing but
the opinion of the canonists ; they were in even
worse ignorance with respect t) the second point,
and it was n. t at all improbable that they should
be led into error on the subject. Even Linwood, one
of the greatest authorities, was at fault upon this
point. In the constitution of Othobogn, who
was a legate from the Pope in this country, and
as such presided at various councils in this
country, it was stated that confirmation followed upon
election. It was at the election that the opposition,
if any, was to be brought forward, not at the con-
firmation. It was clear that the only party who
could interpose in the confirmation was the Arch-
bishop, and if he did so act he would subject himself
to the penalty - of prwrnunire ; and the s weep-
ing clause of the statute of Henry VIII.,
was intended to meet such difficulty. The object of
that Act, and similar Acts passed in the reign of
lilizabeth, was to place the entire government of the
Church in the King, who was the head of the Church,
and which formerly rested with the Pope.
Mr. Justice COLERIDGE—Suppose that the Crown
should exercise the power vested in the Pope, of dis-
pensing with] any dignities, such as that for age, for
instance, would it not be necessary for the Crown to
perform an act and dispense ?
Dr. BATFORD said that the Crown could not dis-
pense with that, as the perogative would be bound by
express statute upon the subject of age. The
Learned Doctor then went on to call
the attention of the Court to the duties
of the Metropolitans, which with respect to elections i
was simply that of a returning officer, and in support
of this view quoted, " Bingham's Christian Antiqui-
ties," book ii., chap. xvi., sec. 12, which stated that
" the 'Metropolitan were to regulate the elections of
all provincial bishops, and either ordain or autho-
rise their ordination." In Burnet's " History
of his Own Times," vol. i., page 696, he
spoke of the election to the see of Oxford
by Dr. Cartwright in the year 1696, and said, " that
two men mere pitched upon as the fittest instruments
to betray and ruin the Church, and some of the
bishops brought to Archbishop Sancroft articles
against them which they desired he would lay then
before the King in Council, and pray that
the mandate to consecrate would be delayed
until time was given to examine the
particulars of the articles. Bishop Loyd told me that
Archbishop Sancroft promised him not to consecrate
until he had examined the articles; but that when
he saw the danger he would incur by the penalty of
praemunire, if he delayed the proceedings, he con-
sented at once to proceed to consecrate?' Such being
the position of the case, he felt convinced that the
Court would not issue their mandamus in this case.
The subject was one of great importance to the inte-
rests of the Church of England, and their Lordships
would pause before they adopted any course which
would not fail to be productive of fatal results. He
deprecated anything like the elements of popular
election being introduced into the election of bishops,
and sincerely trusted that the matter would be al-
lowed to remain in substance, as it at present was, in
the hands of the Crown.

Mr. WADDINGTON followed on the same side. The
Court was met by insuperable difficulties at the very
outset of the case arising from their ignorance
of the canon law, and it was for his Learned
Friend on the other side to prove that the
canon law of the ceu,itry would support the
present proceeding. The canonists who had vuitten
on the canon law, and whose writings '-were
relied upon by the other side, had misquoted the
Decretals, which were the foundation of the canon law
itself. Linwood was notoriously incorrect, and no
authority at all. Lord Holt had said, upon more
than one occasion, that not one half was law
which was contained in that writer. But
upon referring to the Decretals themselves, he found
that tie decretal of Gregory IX. passed in the year
121,5, quoted by the other side, that the word
used was " Prelati" and not "Episcopi," and that
whenever matters relating to the Bishop] were de-
creed, the word always used was "Episcopi" and not
" Prelati."

Lord DENUAN.—What was the date of the conga
d'elire, by King John ?
Mr. WADDINGTON said that he thought it was
the 16th of John. That monarch succeeded to the
Crown in the year 1199, and it would appear
a most curious coincidence that the Decretal of
Gregory the Ninth, and the conga d'elire
should have been in the same year. The Decretal of
Sextus, passed in the year 1299,,a150 used the words
" Prelati," and not " Episcopi.' The arguments
founded by his Learned Friend on the writings of
the canonists must, therefore, fall to the ground.
The statute of Henry VIII. provided for the election
of bishops, and then ordered their confirmation ; but
in cue of default by the Dean and Chapter to elect,