The Sun.
London, England, 1848-01-25 00:00:00

THE CASE OF THE REVEREND
DR. HAMPDEN.

COURT OF QUEEN'S BENCH, Jan. 24.

- - -
(Sailors in Banco before the LORD CutEr-JUSTICE
and Justices PATTESON, COLERIDGE, and EARLE.)

TpIB QUEEN V. THE ARCHBISHOP OF CANTERBURY.
(Continued from our Afternoon Edition of yesterday.)
The Learned Counsel then proceeded to quote numerous
e7tracts to prove that by the ancient law of this
country the Crown possessed the right of presentation
to vacant deaneries and bishoprics. He contended that
the Court had no power by mandamus to interfere with
the canon law of the country. Gibson stated in his
Codex," in a note on letters missive, that the only
choice left to the electors was, either to obey the letters
missive, or incur the penalties of prremunire ;
and that the whole proceeding was only a seem-
ing election. It was most absurd for his Learned
Friend to endeavour to maintain that the
whole confirmation was void, because the citation was
Dot responded to. The whole of the proceedings up to the
periodcof confirmation were strictly in accordance with
the various Acts of Parliament on the subject, and at that
stage all further opposition was precluded. The Learned
Counsel then proceeded to read an extract from the
MS. of Sir James Marriot, found in Trinity Hall, Cam
bridge, which stated, under the head "confirmation," that
that confirmation must be disputed within twenty-one
days, or in default incur prsemunire ; that then there
needed no citation of opposers, nor were they to be heard
if they should offer any opposition. Lancelotus, who
wrote a very excellent work on the canon law, and
which was referred to in a judgment of Chief Justice_
Wiitelocke, stated that the election was not perfeactkeedn
until confirmation, and until confirmation_ had t
place the npene of the party was not changed, the
bishop elect being as it were embryo in utero.
His beamed Friend had said if this citation
was a mere idle form, why was it continued,
and why were the parties pronounced contumacious
if they did not appear? It was not for him to
endeavour to account for the reasons which in.
duced thoseeparties who had gone from the Roman Ca-
tholic over to the Protestant religion; having obtained
the snore important posts they might have been satisfied
to have kept up certain forms which they knew did not
in point of fact interfere with the prerogative of the
Crown. It was not essential to inquire into the reasons
why it was retained; if he had satisfied the Court that
upon the continuation of the statute the Arch-
bishop had no right to enter into an inquiry,
an inquiry which ceuld have no effect upon an election
which was binding to all intents and purposes, and the
exercise of which would have the effect of causing a
spiritual cessation of the duties of the see. The Crown
was the head of the Church, and as such was the best
judge of the fitness of the ministers for the Church.
standing there as he did, in the office of Attorney-Ge-
neral, he felt desirous of obtaining the judgment of the
courtin favour of the prerogative of the Crown; but he still
felt ft necessary to take other objections to the course
fursued by his Learned Friend. His first objection was,
that the Court possessed no power to issue mandamus in
a case affecting the spiritual courts.
Lord DEL.-mess—The ground upon which the appli-
cation was made, and upon which the rule was granted,
was that the confirmation was not complete, and that
the matter was left incomplete by the Queen's officer,
and upon hearing the case it occurred to me whether
it would be competent for the Court to issue mandamus
to the Archbishop, should he refuse to proceed to the
confirmation.
The ATTORNEY GrNERAL said that he apprehended
the Court had not the power in that ease to issue man-
damus; the statute itself provided a remedy for such a
case, which was przemunire. The whole of
the objections which might be urged against
the Bishop elect on the ground of his age,
of his bodily infirmities, or any other ground named in
the canon law, could be dispensed with by a postulate
from the Pope, and the Crown row stood in the place
of the Pope ; and it was clear, therefore, that whatever
the Pope could do the Crown could also do, and if
they considered Dr. Hampden a fit and proper per-
son to appoint as bishop, no person had any
power to interfere in such appointment. The
grounds upon which the oppositioa rested were not
of a temporal nature, but purely spiritual ; the affidavits
stated erroneous doctrine, and it was not competent for
the Court to interfere in such matters. There was the
Dean and Chapter to attend to every piece of idle tattle
and report which might be taken up by persons who
had not taken the trouble of inquiring into the matter.
Suppose this Court should entertain such a case, the
whole affair wotelel put him in mind orla famous trial
they had all heard of, where one " Faithful " was put
upon his trial, and " Blindman," the foreman, said im-
mediately, " I see plainly this man is a heretic." Then
there was another objection. The Bishop had been con-
firmed—he was now a bishop—as much a bishop as
he c0u,1.1 by law be made. What could be
done ? The Bishop could not revoke it ; he had acted
according to the letters patent, and the canon law would
not allow of any such revocation. The Court could not
surely interfere in such a matter. Then, again, where
were the precedents for applying for mandamus in the
Ease ? He had not been able to find any, and
his Learned Friend had referred to none. In none
of the cases which could be cited could any one be
found in which the Court had interfered with the
spiritual concerns of any diocese. But the whole ques-
tion before the Court was to be decided upon the prin-
ciples of canon law, which were entirely foreign to the
princip!ea which prevailed is the common law courts.
Ms Learned Friend was wrong in comparing this Court
to a court of magistrates. In the latter there was so
appeal, whereas, in the former, all their acts were
capable of being reviewed by a superior Court.
It was a well-known rule of practice that a mandamus
to a magistrate compelling him to perform any acts
would not shield him from the censequenees thereof. It-
this rule should be mule absolute, and the Archbishop
decline to confirm, it would be his painful duty, as
Atestrney. General, to issform his Grace Olathe had breugh t
ithin the penalti sof prsaniunire. Would the
Court, then, consent to interfere in this matter, anti
issue the Queen's writ to the Archbishop, compelling
him to act in opposition te the prerogative of the Qtieen?
Ile felt fully confident that the Court would not act in
filch a manner.

The SOLICITOR-GENERAL followed on the same side.
lie would be quite eontent to leave the case with such
arguments as had be en brought forward by his Learned
Colleague and Friend; but he felt it hie duty to address
a few words to the Court upon a most important subject,
and one which involved the highest and most important
interests of this country ; for he realty believed, as
a member of the Church of England, that if
this rule should be made absolute, there
would be an end to the Church of England.
as by law established, and the door would be opened to
every sort of interference with the prerogative of ap-
pointing the bishops, and he believed that henceforth
there would not be an appointment of a single bishop
which would not be subject to some impertinent inquiry
or other, which might be suegeeted by the restlessness
or peevishness of any men who considered that they had
any grounds of complaint or interest in the question.
) to, for one, was Lot ashamed of confessing the ditfl-
velty in which they were placed, in consequence of the
statutes of Henry VIII. not having been framed with
truth, sobernese, and honesty. Ile was not ashamed to
stating that such .statutes were only a shadow and a sham,
and he thought no harm would result to the interests of
the Church of England if these proceedings should lead
men's minds to consider calmly what was the real utility
of such legislation. The Learned Counsel then pro-
ceeded to refer to the precedent quoted by his Learned
Friend on the other side, of the confirmation of Bishop
Montagu. With respect to the opposition of Dr. Ryde
to that confirmation, he was very sorry not to be able to
speak in terms of approbation at this distance of time.
He would refer the Court to a letter by Archbishop
I;Ther, in which he warned the Government not to re
pose conVence in such a man, for that he would
not fail to turn upon them in the same manner
as he had upon the other party. The recent oppo-
sition by Mr. Gtst.t.eridge to the confirmation
of the newly-elected Bishop of Manchester showed
clearly to what an extent this mode of opposition would
be carried if the door was to he thrown open to such a
course. The Learned Counsel then proceeded to read
she various Acts of Parliament from the time of Edward
tip to the time of the statute 25th henry VIII., c. 20,
un the subject of the election of bishops,
and contended
that whatever power wns possessed by the Pope in this
country the Crown of England did, by the statutet of
Henry VIII., incorporate into its own Piero
that the Crown was not to be intercepted in prerogative;and
exerciseof this prerogative; and that the motion of his Learned
Friend if successful would be an interception of this kinglyre
prerogative, and ought not therefore to be granted.
If the rule was made absolute, he believed the peace of
the Church would be destroyed, and that it would be
a great triumph to the enemies of the Church of Eng-
land. The Learned Gentleman, after referring at some
length to the law relative to pram-moire, in order to
show thit punishment had taken place under it, where
the /Latter did not relate to the Church of Rome, pro.
seeded to draw the attention of the Court to the letters
the diocese of
missive for electing a bishop
Dr. of
Hampden. for election, Hereford,
forth
and recommending
Crownhad not
purpose of showing that, even if the. Cr
person for election to the see of
nominated a proper
.:lereford, the Crown had been invested by Act of Par-
liament with powers far
above those of the Dean and
Chapter, and that it wasthei,r business and their duty to
submit to the will of the Crown, and had no right to
entrench upon its prerogatives.
.'There was
of no
au
tliority in existence for the adoption
is course as had been pursued in the present
instance, and he felt convinced the Court would
eever sanction it by making this rule absolute. The
Learned Gentleman then proceeded to read the statutes
of elm time of Henry VIII., for the purpose of showing
that there was no authority in the English canons for
tho present proceedings, and that the power which the
Pope
often then exercised by
hisgrace alone of
appointing bishops, without the confirmation of
that appointment by any inferior authority, was
now vested in the Crown of this country. There was
no canon rule either that laid down principles of those
who might come in and oppose
might the
(tihee nomination of the
upon it, if they
Crown, and their Lordships
opened the door and laid a rule statinpel
and who not, they would give an impetusgw o ulighty()ppose
who might feel himself aggrieved to put tfoorevheri person
pe
salon and vent his spleen. But what was :her" """
present case? Literally nothing; there was lit:railnlytne
no
cognitio causw. The Crown had issued
pietrssoilletteor
missive for the election of a proper
bishop of the see of Hereford to the Dean
and Chapter. Thoy had selected a proper person.
'That individual had been approved of by the Crown,
and that individual had been presented to the Arch-
bishop for confirmation, and no person had a right to
oppose that confirmation, according to the canon law.
For the purpose of supporting this proposition, the