The Sun.
London, England, 1848-02-01 00:00:00

was come to in any of them ; and writers of autho-
rity—Coke and Blackstone—used no expression to
indicate that the right in question Ives stated to
exist. Many of the ancient writers who had been
cited on the other side spoke forcibly against the
right contended for. After some other observations,
the Learned Judge concluded by saying that, after
giving the best attention that he could give to the
.subject, he had to come to the conclusion that the
• upposed right did not exist, and that the rule for a
mandamus ought to be discharged.
Mr. Justice COLERIDGE next delivered his judg-
ment. He said the case had been argued with great
ability, and that he regretted, from the active nature
of his duties, that he had been precluded from giving
that deep examination to the subject which he hid
wished, and went on to say that Ye regretted this the
more because he felt himself called upon to differ
with his brother Erie, and, he believed, with the Lord
Chief Justice. He admitted that the inquiry was ill-
suited to the judge, who felt called upon to declare
the law as it is, not as it ought to be; and also that,
from the antiquity of the authorities on the subject,
And from the various branches into which the law was
divided, that a judge experienced more than ordinary
difficulty in dealing with them. It was impossible
fur a judge to express strong confidence in them.
It was, however, satisfactory to him to be enabled to
state, though he gave his opinion with the utmost
confidence, that any error of judgment on his part
would not be final. He believed also that the dan-
ger which would arise from the people not being
allowed to opp )se the election of their bishops, and
the danger to the Church, though he admitted there
was danger, had been much exaggerated. He
considered that the applicants were entitled to the
mandamus for which they had applied. The Court
exercised jurisdiction over all inferior courts, and the
fact that parties who had a right to appear in one of
the inferior courts were refused a hearing was a suffi-
cient reason to his mind to grant a mandamus. If
the statement was true in this case, and he saw no
reason to deny it, he thought it could not be
denied that it was within the province of
this Court to call upon the inferior court
to do what was right. It might be said
that the lower court was not an inferior one. Eccle-
siastical Courts were not withdrawn from the au-
thority which that Court exercised by mandamus
over all inferior courts. They could not, indeed,
determine the nature of their proceedings, but they
could review them by way of appeal after. Of course
they were the best judges of the practice which
should be adopted in them. Nevertheless they could
compel an ecclesiastical or any other judge to do his
duty, or to restrain those who were about to step
beyond it. In the case of the King v. the Church-
wardens of Bedford, this Court refused a mandamus,
saying the subject was one which ought to have been
carried into one of the Ecclesiastical Courts, and
he did not question the propriety of the
decision. The subject had relation to the
collection of tithes, and the parties were forced to go
to one of these courts in the first instance. There
was no ground for believing that their case would
not be dealt with; but, at any rate, they were to go
there before they could come to this Court. With
respect to the case of the King v. the Justices of Caer-
narvon, Mr. Justice llolroyd said, if only one side
was heard he should consider it equivalent to no
hearing at all, and should consent to the issuing of
a mandamus. They must, therefore, look at the facts.
I'o secure a full and complete administration of jus-
tice they were to regard this whole matter as a sub-
stance, and not as a mere matter of form. If the
statements of the applicants were well founded the
whole hearing has been no hearing, and the decision
no decision, and the applicants had no power of appeal.
There were no parties, and there can be no appellants.
Considerable stress had been laid by the parties
opposing the application on the argument that thd
e
parties had no interest in the application. It appeare
to him, however, that they hal an interest in the
question. If this were a mere form, the citation to
appear would also be a mere mockery, and interest to
the parties or to any body there could be none, and
the applicants would have no right to waste the time
of the Court, or the Court to listen to the application.
The relation in which two of them stood, as incum-
bents of the diocese, gave them, in his opinion, an in-
terest in the faith and doctrine of their bishop. With
respect to the meaning of the 25th Henry VIII., c.
20, it was certainly not what Henry VIII. wished or
intended, but the true meaning of what was written, that
they were to inquire into, and if it were to be con-
tinued even according to the intentions of that
monarch, he had no reason to believe that it would be
found unfavourable to the view which he took of the
subject. The question, however, was not Quid
volanti Rex, but Quid Parliamentum recti. The
question, for the first time raised for a judicial deci-
sion, was, what was the interpretation to be put on
the command to confirm, invest, and consecrate. It
had been said that it conferred a new duty upon the
Archbishop, and invested him with new functions and
duties, which were entirely ministerial in their nature.
Upon the other side, it was contended that confirma-
tion was a solemn, important, and judicial act, and
one which from the earliest ages of the Christian
Church it had been the duty of the Archbishop to
perform, by virtue of his office. Those who main-
tained this ground, of course, took upon themselves a
large burden of affirmative proof, and they proceeded
to show what confirmation meant in the earliest ages
of the Christian Church. If the word "confirma-
tion" were not to be construed in this manner, the
statute would only have the effect of misleading. It
was right also to examine what, in point a fact,
was done at the time ors in succeeding ages in the
matter of confirmation. here were, then, four heads of
inquiry to be gone into, the first, third, and fourth,
might be considered for the most part as inquiries
into mere matters of fact ; the third was a question of
construction. He did not propose to go through the
whole of the facts which had been brought forward.
It was sufficient for him to state that the applicants
had made out a case so clear and so strong, as to:raise
a belief in his mind that the conclusion to which they
came was such, and that they were entitled to the
writ which they asked for. By the practice of this
Court in issuing mandamus absolute certainty was
not required as the ground for such issue'; the ques-
tion is generally more properly decided afterwards
upon the record in a higher court. With respect to the
historical evidence which had been adduced, if the
question were before a jury, and the judge were
summing up, it would be his duty to tell them that
the question was to be considered with all reasonable
allowance for the circumstances under which the evi-
dence had been produced, such as the remoteness of
the period, and the length of the chain of evidence
which was sought and required in the case, and that to
make out this case through a period of trouble and
disturbance as clear as would be required in an ordi-
nary transaction would be impossible. The Court
would, in such a case as the present, he apprehended,
decide as they did a short time since with respect
to an application to alter the statutes and foundations
of one of the Universities at Cambridge, in the case of
the Queen e. Archdale. The province of the Court ap-
peared to him to be more of a grand than a petty jury,
they were simply to inquire whether enough was
proved to allow the case to go any further.
The evidence with respect to the confirmation had
extended to the apostolic age ; he was content, how-
ever, to go no further back than the age of the; coun-
cils, to which reference had been made, as their
authority had been recognised by statutes passed
since the period of the Reformation, Ist of Elizabeth,
c. 1, s. 36. The councils of Nice and Chalcedon
had been referred to, in which it was stated that the
confirmation of the bishop was in the discretion and
power of the archbishop. And what could be more
reasonable than that such should be the case, and
that the consecration of the bishop should be in the
hands of the party to whose visitatorial inspection he
keoenoefexthioenEwnigthli,shorCahubrrcaho,efitlhoeyf,
was subjected ? It had been said that these foreign
canons had no authority in the English Church.
sNpookwe,
ofw when they
htuhreeyhsipoe
nwouthlde
councils
eunßeiolms awneCreathheolldicasCahuutriciohr.ityTahteßdoemcreetaalsd
byh country.en
governedinthis 'general
also
Church be
inretghaisrdeeodunatrsysuwcalThe
canon law, but it was also governed in smaller matters
of detail by the canons of local or provincial synods,
of which Linwood and other
written. They were not intendedext writers have
to overrule the
general canons. 25 HenryVlll.,
c. 19, recited in the
preamble the existence ofyth
fese several canons, and
enacted the appointment
subject, which, however, wase a commissioned. on the
therefore, the decretal;are cinueorteerda
by
yeitnht When,
therefore, canonises
and text writers, they must presume that they spoke
truth on those matters, and it was his opinion that the
election of a bishop was subject to the confirmation of
the archbishop, and that such confirmation was a judi-
cial and not a ministerial proceeding. It had also
been said by the party opposing the application that
the inquiry of the archbishop at the confirmation
was simply one of identity, referring only to the
personi e!ecti, and not to the personi electiones. It
was a sufficient answer to that to say that no case
could be adduced where such an inquiry had ever
been instituted. Several of the cases on the other
hand, cited by Mr. Badeley, proved exactly the re-
verse. The appointment of Robert, Bishop of Bath
and Wells, was set aside by the refusal of the Arch-
bishop to confirm, on the ground of the bishop
elect being a pluralist. A second person was ap-
pointed, who was also refused in like manner, and
the parties appealed to the Pope, but, through the
threats of the Archbishop, who stated his intention
to resign if his decision vs •
ere reversed, the confir-
mation was not proceeded with, and the Pope ap-
pointed and consecrated a bishop himself. Orford,
the fourteenth Bishop of Ely, also refused
confirmation by the Archbishop,was
but, upon appeal
to the Pope, was consecrated upon the spot; the
expenses of the appeal having amounted to the sum
of 15,0001., a very large sum in those days.
The Learned Judge then referred at considerable