The Sun.
London, England, 1848-01-24 00:00:00

EVENING, JANUARY 24 1848.

THE CASE OF THE REVEREND

1)11. HAMPDEN.

QUEEN'S BENCII—(THIS DAY).
(Sittings in Banco before the LORD CHIEF-JUSTICE
an TTISON, COLERIDGE, and EARLE.)

THE QUEEN V. THE ARCHBISHOP OF CANTERBURY.

It having become generally known that the argu-
ments with respect to the right of the opposers of the
Rev. Dr. Hampden, Bishop of Hereford, to oppose
his confirmation, would be taken to-day, the galleries
and body of the Court were crowded some time before
the Learned Judges took their seats on the bench.
A number of ladies were in one of the galleries. The
attendance of barristers was more numerous than on
any occasion within our recollection—in fact, so many
attended that a vast number were obliged to occupy
the side avenues. Every available place was occu-
pied. The majority of those present, with the excep-
tion of the barristers, were clergymen, some of whom
were accommodated with seats beside the Masters.
The Right Rev. the Dean of Hereford occupied a seat
in the jury-box amongst the short-hand writers.

The counsel for the Crown are the Attorney and
Solicitor-General, Mr. M. D. Hill, Mr. Waddington,
with whom were Dr. Bayford and Dr. Twiss • in
support of the rule Sir Fitzroy Kelly, Mr. BaddCley,
Mr. Peacock, Mr. A. J. Stevens, and Dr. Adams.
The Learned Judges took their seats a few minutes
after ten o'clock.
The _ATTORNEY-GENERAL then rose and said he
had to show cause against a rule which had been
obtained by his Learned Friend, Sir Fitzroy Kelly,
calling upon his Grace the Archbishop of Canter-
bury, and the Vicar-General, to show cause why a
writ of mandamus should not issue to command and
direct them at a Court to Le duly holden for the
confirmation of the Rev. Dr. Renn Dickson Hampden
to permit and admit certain persons to be heard in
opposition to the said election and confirmation.
Before he proceeded to adduce arguments in opposition
to the issuing of such a writ he had to state
that his Learned Friend and himself had deemed it
desirable, with the permission of the Court, to have
the assistance of several of their Learned Friends from
Doctors' Commons, whom his Learned Friend and
he hoped the Court would hear.
Lord DENS AN—We shall be very happy to hear
one on each side.

The ATTORNEY-GENERAL went on to say that he
appeared to oppose the application under instruc-
tions from the Government, but, at the same time,
with the full consent and concurrence of his Grace
the Archbishop of Canterbury. So many objections
presented themselves to his mind against the granting
of the writ that he felt some difficulty in placing
them before the Court ; perhaps the most
advisable course for him to adopt would be
to follow the course traversed by his Learned Friend.
and tracing the question, as he had done, from its
origin, afterwards dealing with the construction of
the Statute of Henry VIII., and offering, as he went
on, various objections, many of which he was con-
fident must occur to the mind of the Court. The
slidavit on which the application of his Learned Friend
was based, statedthat there being a vacancy/ in the See
of Hereford, a conge d'elire was issued, pointing out
Dr. Hampden, after the manner laid down in Gibson's
Codex, as a fit person, by his piety, wisdom, and
learning, to fill the vacant office, and commanding
the Dean and Chapter of Hereford to eleet him under
various pains and penalties ; that the election of
Dr. Hampden took place, and was duly certi-
fied to the Crown and to the Bishop elect
under the seal of the Dean and Chapter of the dio-
cese ; that her Majesty then issued letters patent, in
the terms prescribed by the statute, to the Arch-
bishop of Canterbury, commanding him to confirm
the said election, and to consecrate the person of the
Rev. Dr. Hampden ; it then stated that the Arch
bishop appointed his Vicar-General and several com-
missioners to carry out these injunctions, that they
were carried out, and that ultimately what was
termed the " definitive sentence of confirmation"
was agreed to, but complained that certain parties,
who had valid grounds of opposition to the confirma-
tion were not permitted to appear when all persons
having anything to urge against the proceedings were
cited publicly to do so, and if they did not appear
judged contumacious. It must not, he said, be lost
sight of that the objections did not oppose Dr. Hamp-
den in personam : their opposition was founded upon
two books published by Dr. Hampden, in which, they
contended the Rev. Gentleman avowed his purpose
to be to illustrate the increasing effects of dogmatism
in theology, and expressed himself in favour of the
abolition of canonical forms in the Book of Common
Prayer. Therefore it was not founded upon any-
thing in the election itself, but upon the books pub-
lished a long time ago, one of which they stated had
been condemned in Convocation at Oxford. His
grounds of opposition were these :-Ist, That the elec-
tion and confirmation were mere matters of form, and
that the Archbishop in the business of confirmation
simply acted ministerially; secondly, assuming that
the Archbishop was not merely fulfilling a ministerial
office, as he contended he was by reason of the
statute, and that his office was a judicial one, he con-
tended that the remedy in a matter of this sort, if
there had been any mistake, was by an appeal, and
not by a writ of mandamus, for the Archbishop had
not exceeded the scope of his duty. In fact, in this
case there was the substitution of a mandamus for
an appeal, and an appeal to that court did not lie.
Thirdly, if it was a quasi judicial inquiry, he con-
tended that this Court had no means of inves-
tigating this peculiar charge, and that if the
matter was one for inquiry, that it should
have been instituted in conformity with the
provisions of the Church Discipline Act, which pre-
scribed the form of proceeding. The Court of the
Archbishop, if a quasi judicial tribunal had, no more
right to try this case than it had to try a mere tem-
poral offence; and, fourthly, that this was not a case
in which a mandamus would lie. This first objection
depended upon the construction to be put upon the
Act of Henry the Eighth, which dealt with ca-
nonical elections. This also raised the question
which were the books of the statute and common law
on which they could depend. The Learned Counsel
then referred at length to the mode of electing
a bishop, as detailed in " Ayliffe's Parrergom," whilst
the Pope exercised jurisdiction in the realm. The
archbishop, it appeared, consecrated those whom the
king appointed with the consent of the Pope. A
controversy having some time before arisen between
the King and the Pope, which terminated in the
Pope being permitted to nominate, the King retain-
ing the right to recommend persons, and to be present
at the elections. The Learned Counsel then referred
to the Ist Institute, c. ii. p. 133, 8., under the
head " Episcopas," which recited the same facts
and adverted to the granting of a charter by the
King to the effect we have stated. Lastly, by the
law before the passing of the Act of Henry VIII. he
contended that there was a studious desire to prevent
all inquiry after the nomination. He then quoted a
passage from " Launcelot's Institutes," which was
not referred to by his Learned Friend, who, in a long
treatise on " qualifications" (title 7), stated that the
parties appointed were to examine into the qualifi-
cations of the person to be elected ; but then they
would have to inquire what was the proper construc-
tion to be put upon the words " personam eleeti."
The old canonical law referred to this, and
stated that persons who wished to oppose the
confirmation of a bishop might appear to do so.
He gathered from this book, that after confirmation
there was no opportunity of investigating the cha-
racter or pretensions of the person so confirmed,
though objections might be made; and Ferraris, in
his " Bibliotheca Canonici," stated, that unless all
things set down were done—if no public citation of
opponents took place—that the whole of the proceed-
ings were void. Linwood spoke in the same way ;
but he would not fatigue the Court with an accumu-
lation of repetitions. The only case in point that he
(maid find before the passing of the statute of Henry
the Eighth, was the case of Cranmer. It was re-
ported in Burnet's "History of the Reformation," v01.i.,
p. 259. It appeared, that just before the passing of the
Act, the King sent to the Pope for bulls for Cranmer's
promotion, though a statute had been passed forbid-
ding the reception of bulls from Rome (they were
the last received during the King's reign). These
bulls were sent one to the King, one to the Arch-
bishop desiring him to invest the Bishop elect with
the dignity, and the third to the Bishop himself. It
was unlikely, therefore, at that time that any oppo-
sition would have been allowed. There was another
case, that of O'Brien v. Nevan, reported in Palmer.
In the reign of Edward VI., and subsequently in the
reign of Philip and Mary, the question arose whether
an Irish Bishop who had been appointed, but who had
fled to the Continent during the disturbances that
prevailed, was good, a successor having been ap-
pointed, the first not having been elected by a conge
d'elire. The Court decided that a Bishop could be
elected without the issuing- of such letters. He
now came to the statute of Henry the Eighth, which
he contended at once put an end to this opposition. It
stated that a vacancy having been declared, the
Crown should issue a conge d'elire, accompanied by a
letter missive naming some person, and stating that
the election should take place within twelve days, and
that afterwards letters patent should be issued to the
Archbishop commanding him to confirm the said
election. He contended therefore that the whole
proceedings were a mere matter of form, merely kept
up for the purpose of showing the connexion of the
Reformed Church with the ancient forms that
prevailed. There could be no contradiction,
because the Crown said this person should be elected
and no other ; and no co •electors could be cited be-
cause the person named by the Crown alone could
be elected. The statute said the election was to take
place in "due form," which could not, he contended,

have reference to the competency of the person
nominated. The Crown was made the sole judge of
the fitness of the party, and it was clear, therefore,
that thw election was merely a ministerial proceeding,
or, to use the words of Gibson, " merely the sealing
of the election." The King was put in the place of
a judge, in the room of the Bishop of Rome,
who formerly exercised that power. The 6th
section went on to say, that the Bishop
should be inducted with certain ceremonies ; the
Archbishop was commanded to "induct and conse-
crate" the Bishop elect without seeking any further
power than that given by the King. The Arch-
bishop must therefore confirm, no opportunity
occurred for objecting. The election was then
stated to be good "to all intents and pur-
poses ;" but his Learned Friend contended that
they must inquire into the process of the election,
but no inquiry could take place, looking at the con-
struction of these words. The old jurists said that
inquiry might take place, whereas the Act strictly
forbade it. Supposing the rule were made absolute,
the Court could not inquire into the matter. 'What
was to happen P Could the election be set aside ? It
could not, for the Act said the election was good " to all
intents and purposes." Why, if the confirmation
were delayed for ever, there never would be a Bishop
of Hereford, for the election could not be set aside.
If the parties were entitled to appear (he was taking
the strongest possible case against himself) there
could be no alteration. The election was properly
transacted; it was certified by the seal of the
Dean and Chapter, and Dr. Hampden was to all
intents and purposes Bishop of Hereford. The letters
patent commanded confirmation, and therefore the
plaintiffs had no right to inquire into the fitness of the
person. Then, the 7th clause of the Act stated, if
the Dean and Chapter did not proceed to the election
(he was told that if they had elected another person,
that the election would have been valid), that after
the expiration of the alloted time they would be sub-
jected to the form of preemunire. The statute treated
the election and confirmation as one and the same.
They had an instance of this in the time of Philip and
Mary. Burnet reported the case of Cardinal 13.11,
who refused to take his high office until the morning
of the execution of his predecessor, and he was
elected by a bull in the ancient way.
(The case was proceeding when our report left.)

SAMBRE AND MEUSE RAILWAY.

The fifth half-yearly general meeting of the pro-
prietors of the Sambre and Aleuse Railway was held on
Saturday afternoon at the London Tavern, Bishopsgate-
street ; Mr. 'William P. Richards, the president of the
company, in the chair.
The report stated that the directors were not in a
position to announce the opening of the first section
of the line from Marchienne to Walcourt, nor were
the branches to Laneffe and Morialtne yet complete,
although it was intimated at the last meeting that
they would hare been ready by this time. The
junctioi, however, with the State line near Mar-
chienne, and towards Charleroi, was completed.
The directors had sought interviews with the direc
tors of the Charleroi and Erquelines Railway, who
were desirous of using the Sambre and Meuse
station at Marchienne, and the junctions from that
point to the State line, but the ...terms were not yet
agreed upon. At the present moment the number of
shares upon which the eighth call remained unpaid
did not exceed 100, and of the ninth call only 1,656
shares remained unpaid. The total amount received
up to the present time was estimated at 562,817/.,
and the expenditure to 536,787/. ; while the cash in
hand was estimated at 16,0301., exclusive of 20,0001.
deposited with the Belgian Government, 2,0001.
with the French Government, 12,0371. of invest-
ments, and of 32,0001. advanced to the contractors.
The CHAIRMAN, in moving the adoption of the re-
port, said it was fully expected that the main section
of the line would be opened for traffic in March or
April next; and it had been promised by the Bel-
gian Government that the time for completing the
whole works should be greatly extended. It was,
therefore, proposed by the directors that after the
opening of the first section, the other works should
be postponed till a more favourable opportunity pre-
sented itself for raising money. The completion of
the first section would require 20,000/. more than
the directors already had in hand.
Mr. Lrrino moved, as an amendment, that three
shareholders be appointed as auditors to examine the
accounts.

The CHAIZMAN said the directors could have no
possible objection to the amendment, but the Hon.
Proprietor ought to hare given them notice of it.
Eventually the amendment was negatived, and the
report adopted ; and thanks having been voted to the
Chairman, the meeting terminated.