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

WEDNESDAY EVENING, FEBRUARY 2 1848.

in the latter—strengthens this view of the matter.
The election by the Dean and Chapter is to be made
within twelve days, and the archbishop is enjoined to
consecrate in twenty clays. The election is a mere
form, the appointment being in terms by the king.
The consecration, however, is a more solemn act.
The form is contained in the Book of Common
[Prayer. The bishop, before receiving episcopal ordi-
nation, is " called, tried, and examined ;" and the
archbishop, after receiving him at the hands of two
bishops, demands the king's mandate for his conse-
cration. Then the archbishop, sitting in his chair,
is to put certain fixed questions, to which fixed
answers are to be given. The 3111th article ordains
especially that the consecration shall he in this form.
The consecration, therefore, is said to be like the
election, very little more
i than a formal cere-
mony. The one is the initiation of the dean
and chapter, and the other the confirmation of the
Archbishop; but both are, in reality, the acts of the
Sovereign ; and, that being so, we are now asked to
find some reason why confirmation should be more
than a mere form also. The answer is, that the word
" confirm" had a certain known legal sense. After
the remarks made at the bar and since, I will now
proceed to inquire what was at that time the meaning
of the word "confirmation," and whether the
command to the Archbishop to confirm is to be
understood as giving him power to hold a court
at which all persons not pleased may come in
and oppose. If this he so, the favour of the Sove-
reign is supposed to have placed the bishop elect in
a position analogous to that of a felon, whose trial the
jury are to decide. He has pleaded not guilty to the
charge, and all persons are then to be invited, by
public proclamation " If they know any treasons,
felonies, or misdemeanours, done or committed by the
prisoner at the bar, to come forward and give their
evidence." That is the position in which it is now
contended a bishop elect, whose doctrines have been
approved of on his ordination to the offices of deacon
and priest, who has been nominated by the Crown,
and elected by the dean and chapter, is to be placed
by the favour of his Sovereign ; and the charge is
to be made blacker, if possible, by the use of the
full and comprehensive word " heresy." When
engaged upon this topic I feel it necessary
to repeat what has often been stated in former
judgments—that the canon law forms no part
of the common law of this realm unless practice can
be shown to the contrary. Then I am of opinion
that the burden of proofs on such a point rests on the
parties opposing; but into this I need riot go, for I
am convinced that the practice never has existed
authoritatively in this country, and for proof of that I
rely, not upon affidavits, but upon the arguments of
the appellants themselves, for I am satisfied that it'
even such a case could have occurred, it would not
only have been cited in this court, but would have
been notorious to all the world. But there is not a
trace of such a case ; all records, historical and legal,
prove a perfect blank with respect to it. It was
argued that perhaps such a case never had occurred
because an appeal to that court might never before
have been necessary. What, during all the centuries
Christianity had existed, not one person, some of
whose opinions may have been alleged heretical, have
been elevated to the bench of bishops ? Has there
been none elevated with "spiritual pride," none with
" jealousies," none against whom some person or another
might not have alleged some sort of " immoralities
And even if this wires°, were there no persons during
all that period capable of making a false charge—of
drawing a false inference ? Where were the sons of
I3elial at that time—a class not extinct in these days,
and who never fail to be forward in cases in which
they take so much delight ? But, suppose opposers
admitted : observe what would happen. " Come
forth," said the proclamation, " and offer your oppo-
sition in the case of this person to he made a bishop."
The answer is, from one, " I knew this man at col-
lege 20 years ago, and I can tell you of some irre-
gularities in his life." Another would say, " This
person is justly suspected by one of having performed
the service whilst in a state of inebriety." A third
might charge him with " vanity." Another might
throw a slur upon the chastity of his mother, or attack
his conduct respecting his son. All that the Pharisee
blessed himself in being free from these people might
falsely allege against the bishop. He might know
all the allegations to be false and infamous; the
archbishop might think the accusers utterly
unworthy of belief, or know the charges to be
false, but, nevertheless, the inquiry must proceed, and
though they should be disproved, and the confirma-
tion take place, still the fatal calumny must remain.
But how much is the case strengthened when the
charge is the unfathomable charge of heresy, sup-
ported by extracts from books, probably little under-
stood, and by reported conversations, probably ima-
ginary, and, if real, difficult to be correctly repeated.
Thus the life of a bishop might be frittered away
• whilst proceedings are pending against him, and his
see might be left without any occupant, to the detri-
ment of the church and the of people. The existence of
this course being inferred, the next consideration is,
what the proceedings would be. These may be
known from the citation to opposers and the Schedula
Divina of Bishop Gibson. The evidence that this oppo-
sition took place in ancient times is a very small, and
is proved to have been a mere matter of form during
the last three centuries. And why should it not have
been formal, when it is well known that nothing
could have resulted from any attempt to make it
otherwise ? Why not give the ecclesiastical autho-
rities credit for surrendering so invidious a power, or
rather for refusing to adopt it ? Any attempt to
carry such a scheme into effect must have shown its
utter impracticability. But let us consider what
mighty edifice is sought to be raised upon this word
" confirm." We are told the Archbishop holds a
court, but that this court has ever done what is now
required is not pretended. The right of appointment
of a bishop by the Crown, without the interference
of the archbishop has, in fact, never been doubted ;
that any opposer to the confirmation was entitled to
appear was never even surmised. The records of the
court are silent on the subject. There has been, in
fact, only one exception to the rule of the non-appear-
ance of opposers, and that exception was in the case
of Bishop Montague, when the Vicar-General, Dr.
[fives, refused to hear an opposer, guarding himself,
however, by stating that he did so because the opposi-
tion was not in writing. Of this Dr. Rives we know
little, and that little not much to his credit; but it
very clear to me that if he did give such a judgment
he was wrong ; for in the law nothing is said about
the opposition being in writing, and indeed it might
proceed from a party who is not able to write. If
such a proceeding as that were permitted, the op-
poser of the new Bishop of Manchester might appeal
to this Court, and might argue on the same
ground that the confirmation was null and void
because he was not heard. If such were the
law, there would be plausible reasons for ad-
mitting the opposition. The dicta that had been
cited in the case of Evans v. Ascuithe, in which
the Dean of York having been promoted to the
bishopric of Bristol, and in the interval between
his election and confirmation having performed
acts as dean—granted leases in conjunction with
the chapter it had been mooted whether
his election was valid. In the course of
that proceeding opposition cooled very much. Judge
Whitelocke, it was true, alluded to the possibility of
the ceremony not being completed ; but he never
dropped a hint in favour of the opposers' right to be
heard. A useful pamphlet has been cited in this
court, containing a collection of opinions upon the
subject of the prerogative, in the form of a dialogue
and statement. The question discussed is, whether
the Sovereign has the power of the keys the same as
the Pope, and can confer ecclesiastical orders ? It
takes the form of a dialogue between a Roman Ca-
tholic and a Church of England man. The former
maintains the converse proposition ; and the subject
then branches off to the creation of bishops. The
Church of England champion maintains that freedom
of election in respect to bishoprics is consistent with
the recommendation of the Sovereign to the vacant
see ; that it does not exclude it. The Roman Catholic
then suggests the appointment of an uncanonical
or immoral person ; to which the Church Of Eng-
land man replies, that the kings of this country are
wont to proceed in such matters carefully and pi-
ously, which is the reason why the Church of Eng-
land is in such a flourishing condition. The Roman
i
Catholic then urges that the Sovereign s but a man,
and as such subject to human weakness , to
which his antagonist answers, that in such case the
electors would no doubt represent the case to the
King, beseeching his Majesty to take care whom he
recommends to them ; and he adds, the princes of
England are so famous for their piety and con
dcscension, that he has no doubt the Sovereign would
nominate another person. It appears from the pam-
phlet that Charles 11., having taken into his serious
consideration how much it would conduce to
the honour of God so to do, resolved that
no Secretary of State should thenceforward
move eforward
move his Majesty to appoint to any bishopric in the
Church without a certificate of the competency of the
candidate signed by the Archbishop of Canterbury
and the Bishop of London. The same thing was
done by William 111. But in neither of those in-
stances was the right of interference with the appoint-
ment of the Crown in any way recognised, nor any
allusion made to the rejection of the individual nomi-
nated for election. The case of Bishop Gibson,
which had been before mentioned, was a remarkable
authority. He was assailed by one of the most
learned judges who ever sat in this Court, Sir M.
Foster, as one who desired to ereate an ecclesiastical
hierarchy, and to erect the Church into an imperium
in imperio. This charge it was that induced him to
write that celebrated treatise which still remains a
perfect storehouse of ecclesiastical law, but in no one '
page of which does he assert the existence of any power
on the part of the archbishop to defeat by such an
inquiry as that of confirmation the right of nomi-
nation by the Crown. Certainly, some questionable
applications have beenmadein regard to the subject.

There are no less than four of these reported. In the
case of Bishop Hoadley, for instance, that prelate gave
his opponents free opportunities of making opposition
to his confirmation, knowing that something was
alleged against him. Archbishop Wake remonstrated
successfully with the Sovereign against the promo-
tion of Dr. Samuel Clarke, and other sovereigns have
consulted archbishops before promoting to the office
of bishop. But not a word has been uttered, not a
fact has been cited to show that any archbishop has
ever instituted or could institute any inquiry. Every
one has heard in this case of the celebrated protest
addressed by thirteen or fourteen: bishops against the
prelate. The arguments they urged were arguments of
great weight and power, hut, though they warned
the Minister of " scandal" arising from the nomina-
tion, not once did they allude to the rejection of the
prelate for confirmation on the ground of heresy. One
of the objectors wished not to be exposed to the perils
of a preemunire, but there was no assertion of the
danger and disgrace so likely to arise from any oppo-
sition on the part of those who had procured the
condemnation of the bishop elect by the Convocation
of the University of Oxford. It was said, indeed,
that by not allowing the Court to inquire the arch•
bishop would be converted into a mere " machine."
That word " machine" suggested to him (Lord Den-
man) the idea that the writ of that Court might pos-
sibly be required to be used as a " machine"—a
machine with some sort of galvanic operation upon
powers hitherto supposed to be extinct, which would
make some convulsive motions for the space of twenty
days, and then relapse into the most profound repose.
But that idea implies that the forms in which
vitality is to be generated never had existence.
Ido not believe that to have been the case. The duty
of the Archbishop in the matter appears to me to be
clear, and entirely apart from the functions of a judge.
It is, in my opinion, more analogous to the duty of a
returning officer at elections. His confirmation is
necessary. If his inquiries lead him to the opinion
that the appointment would be injurious, he can re-
monstrate. He can advise the Crown not to issue a
conge d'elire. He may ask to be removed from the
painful position of performing, or ordering to be per-
formed, the duty of consecration after the election has
been made. Even then he may still resort to the
presence of the Sovereign, and pray to have the conge
d'elire and the letters missive superseded. But even
at the worst, if the Crown persists in nominating the
person to be bishop, and if he is quite clear that the
conge d'elire ought to be set aside, he may act as his
Conscience doubtless would dictate, and as some of
the judges of this court have acted, and resign the
office which the Crown had given them. He may
resign. The present Archbishop, I have no doubt,
would do so after hearing the objections that
were made to Dr. Hampden, if he did not consider
that he would not be justified in such a course of pro-
ceeding. I ask whether it has been the opinion of
any person, until within the last few weeks—until
this unfortunate controversy occurred, which has so
inflamed the public mind—that the Archbishop had a
se to on the appointment of the Crown to a vacant
bishopric ? And when I hear Sir F. Kelly entreat,
with the solemnity of manner peculiar to him, that
we would notgcall upon the Archbishop to invoke the
Almighty in prayer, and perform as a sacred cere-
mony that which is in reality a mockery, a shadow,
and at best a useless form, I confess that I hardly
know how to meet such an observation. Are, then,
the dean and chapter to be treated as nothing ? Do
they conduct their proceedings without prayer and
solemn ceremony ? And if they are required, not-
withstanding to proceed to the election, without
the power of refusing to elect the nominee of the
Crown, why should all this declamation be re-
ferred only to the confirmation, and not to the elec-
tion ? It may be an ill-considered and an impious
Act of Parliament, and one, perhaps, that ought to be
repealed, hut why there should be any objection made
to the solemn ceremony of the confirmation, and not
of the election, which is conducted with equal solem-
nity, and both of which are in conformity with the
Act of Parliament, I cannot understand. It reminds
me of the two Roman augurs who were said never to
meet each other without laughing; and it certainly
does appear to me, that if the Court yielded to the
request of the Learned Gentleman on such a ground,
the advocates on both sides would have good occasion
to laugh at its decision. Having stated my reasons
for the opinions which I deliberately, firmly, and
conscientiously entertain—that what was contended
for in support of the rule never has been at any
time the law of England—l must say that I think the
Court is bound to refuse the writ of mandamus.
At the same time, I may state that I have had
the greatest possible hesitation in coming to this con-
clusion ; and the more especially as I feel that this is
a refusal of an inquiry which, in a railway or any
other ordinary case, would at once be granted. My
opinion is so strong against making such a rule
absolute, and so entirely unchanged by what I have
heard this day, notwithstanding that I feel the
' greatest disposition to show the highest respect for
the sentiments of my Learned Brethren who differ
from me, that I cannot possibly say that this writ
ought to go. I think if it went it would be good for
nothing, for the return which would be made to it
would be a sufficient answer. But lam also bound
to consider the consequences which would arise from
the issuing of such a writ, viz., the frightful state of
theological animosity which it would create and per-
petuate for a period of perhaps two years, and the sanc-
tion it would give, upon the avoidance of every see,
to the adoption of a similar course, where the Arch-
bishop would be called on to summon all mankind in
every case as objectors to the appointment of the
Crown, and keep open a court, which, in fact, might
never be closed. It must also be borne in mind that
the Court has a discretion in the issuing of a manda-
mus, supposing even it thought that the proceeding
complained of was of a judicial character, and that
the Archbishop might be compelled to hear the ob-
jectors ; and, in the exercise of this discretion, with-
out regard to the legal right, I feel bound to refuse
the writ. I must also acknowledge that some
deference is due to the exalted person who is the de-
fendant in this case, as well as Dr. Hampden himself,
whilst snore regard is to be paid to the safety
of the Church and the peace of the State, which I
verily believe would be perilled by the encourage-
ment of the smallest doubt as to the true meaning
and intention of the Act of Henry VIII. I repeat
that I have the greatest respect for the opinions of my
Learned Brethren. I think this is a question which ought
to have been discussed. The balance of convenience
certainly appears to me to be in favour of discussion.
I must say, in reference to my brother Coleridge's ad-
mirable argument, that it only confirms me as to the
danger of exposing the clear construction of Acts of
Parliament to those who would bring down their for-
gotten books, and wipe off in this court the cobwebs
from decretals and canons, of which they know no-
thing. For these reasons, and thinking myself bound
by the Act of Parliament, and the practice which
has prevailed, I think the rule must be discharged.
The Court being equally divided in opinion, the
application was refused, and the rule was accordingly
discharged.—Rule discharged.

CENTRAL CRIMINAL COURT.
OLD COURT.
James Coates, 21,
and
belonging to the INletropo-
raiNlSNL2rinan, 21,
both formerly constables
t l'n a carpet-bag,
the C o o;r-eStz
and several articles of
containing,l it ali i'o l Police,
awere
diamondindicted
ri
ofgo r a
os
property of George Spong.
me.Bb odlimin,r.anndobAinlsro.
nCladrekfencdoend-
wearing apparel, the
Coates.
It appeared that the prosecutor, who is a Com-
mander d. Ctlbae secutir k sporno
dui\cti
Hier in the Royal Navy, was proceeding in a
,o .
instenattn-boat to Gravesend, on the 17th of December,
having with him two carpet-bags, and when he ar-
rived at Gravesend he missed one of them. Mr.
Spong spoke with some certainty to seeing both pri-
soners on board the boat on the day in question, and
a very considerable portion of the stolen property was
found a short time afterwards in a lodging occupied
by Coates at Cheltenham, and also at a lodging he
had formerly occupied in Anthony-street, St.
George's-in-the-East. It was likewise proved that
on the 15th of December the prisoner Coates pawned
a portion of the property, and on the 17th the dia-
mond ring was pledged by the other prisoner
The prisoner Swarman, in his defence, declared,
that the books of the police would show that he was
on duty at the time the robbery was committed, and
also on the day when the pawnbroker represented that
he had pawned the ring.
Hardwick, the police-sergeant of the prisoner's
division, on being applied to upon this point, said, he
believed the police books would certify that the pri-
soner Swarman should have been on duty on the days
he mentioned, but he was frequently charged with
neglecting his duty, and at the time in question he had
no sergeant over him who could state whether he was
on duty or not.
The pawnbroker was recalled, and he spoke posi-
tively to the fact of Swarman being the person who
pawned the ring.
The jury found both prisoners Guilty.
The COMMON. SERGEANT told Swarman he would
not lass sentence upon him then, but would give him
an opportunity of bringing forward evidence, if it
was in his power to do so, to prove the facts he had
stated.

S warman said, that an inspector and two constables,
whom he named, could prove the fact.
➢ir. CLARKSON said ho would take care that the
persons referred to were in attendance on the morrow,
or some future day of the session.
The prisoner Coates was then arraigned on another
indictment, charging him with stealing a carpet-bag,
the property of a gentleman named White.

- .
This was a similar case to the last.
The prosecutor was coming to London by the Black-
wall Railway on the 11th of December, when he had
his carpet-bag stolen, and a portion of the property it

contained was found very shortly afterwards in the
possession of the prisoner.
The jury again returned a verdict of Guilty.
Mr. BODKIN said there were two other indictments
against the prisoner. It appeared that he had gone
down by the Great Western Railway to his friends
at Cheltenham, taking with him a large quantity of
luggage, the greater portion of which was the pro-
duce of robberies he had committed upon the different
railways. The appearance of the prisoner and the
quantity of luggage he had with him attracted the
attention of an intelligent officer connected with the
railway, and he was watched ; and it appeared that,
notwithstanding the position in which he was then
plac,d by his former conduct, he could not refrain
from committing two robberies upon persons tra
veiling in the same train.
The COMMON SERGEANT sentenced the prisoner to
be transported for 14 years.
John Dean, 19, was convicted of picking the pocket
of a foacigner, named Maks Henoch, of a book, a
sovereign, and other articles. The robbery WdS com-
mitted while the prosecutor was standing in the crowd
to witness the execution of Thomas Sale, on the 10th
of January.
The prisoner was sentenced to six months' hard
labour.

POLICE INTELLIGENCE.
MANSION-HOUSE.
George Kien, John Dixon, John Pearson, Thomas
C. Findley, and Donald Galbraith, seamen, were
charged by Mr. Coleman, the assistant-registrar of
seamen, under the sixth section of the 7th and Bth
Victoria, chap. 116, with having deserted the vessel
named the South Stockton, on a voyage from London
to Shields, and thence to Constantinople.
The case supplied a strong instance of the necessity
of the Act as well as of its efficacy.
The seamen boldly stated, in answer to the charge
of desertion, that the vessel was not seaworthy, and
that she was making in her voyage out seven inches of
water per hour, and they considered their lives were
in danger.
Mr. T. Nutting, of 158, Fenchurch-street, the
owner of the vessel, produced a bill of expenses in-
curred through the desertion of the seamen, amount-
ing to 501., and in reply to the defence of the seamen
stated, that the vessel was only eight years old and
was classed A 1, at Lloyd's, and that after her recent
voyage from the East Indies she had undergone a
slight repair, but, in order to prove the reasons as-
signed by the prisoners to lee groundless, the master
of the vessel had called upon the surveyor for Lloyd's,
at Deal, to examine the vessel, and he now produced
the following certificate :
" We, the undersigned, by request of Captain
Thomas Francis, of the brig South Stockton, and by
direction of Edward Juggleden, Esq., agent to
Lloyd's, Deal and Ramsgate, have been on board the
said vessel now lying in the Downs, bound from
Newcastle to Constantinople with a cargo of coals,
and do find that she is making one ineh of water per
hour, and that the said vessel is in every respect well
found and fit to proceed on her intended voyage to
Constantinople.
" Given under our hands, at Deal, this 18th day of
January, 1848.
"C. MILLER, Warden of Pilots.
" W. BRisTow, Master Ship's Carpenter."
Mr. Nutting also stated, that in addition to the act of
desertion, the defendants had stolen the ship's boat,
which they had left on the sea-beach till it was broken
in pieces by the waves.
The LORD MAYOR said the case was one wholly
unworthy of British sailors, and showed an extraor-
dinary disposition to cheat and to tell gross and ma-
lii.; nant lies to cover the deception. lle wished he
had it in his power to inflict a heavier penalty than
thirty lays' imprisonment and hard labour.
William itrAfanus and Richard Bourn were then
charged by Mr. Coleman with having deserted the
Emerald Isle at the Cape of Good Hope in October,
and having incited an apprentice to follow the exam •
ple, and also with having stolen the jolly boat belong-
ing to that vessel.
The seamen pleaded that sufficient reason for
leaving their vessel arose from the ill-usage they
experienced from the captain and officers, but did not
deny that they had purloined the ship's boat or caused
the apprentice to desert.
I\ fr. Nathaniel Palmer, the Recorder of Yarmouth,
and owner of the Emerald Isle, stated that his son
was in command of the vessel, and that the officers
were the sons of gentlemen of the highest respecta-
bility, from whom fair play could not but be ex-
pected; that sufficient opportunity had been offered
to the defendants to make complaint, the vessel
having remained at the Cape of Good Hope for up-
wards of three weeks, during which time a reward
was there offered for their apprehension.
The LORD MAYOR sentenced the defendants to be
imprisoned for the full term of thirty days, with hard
labour.

Lyme H. Christopher, late chief mate of the Con-
rad, was charged by Mr. Coleman with having de-
serted that vessel at Quebec. The register ticket of
the prisoner, together with those of the previous
charges, had been returned to the office, and it ap-
peared from them that the persons named had been
returned to the office as deserters.
Mr. Harrison, merchant and shipowner of the Con-
rad, confirmed the charge, and complained of the great
inconvenience and serious losses arising from the
example set by the prisoner to the remainder of the
crew. He solemnly declared that unless every exer-
tion had been made the vessel would have been obliged
to winter there, and would thus have exposed him to
a much heavier loss than be had as yet sustained.
His Loonsuir sentenced the defendant to imprison-
ment and hard labour for thirty days.
Mr. Goodman then informed the Lord Mayor that
since the commencement of his mayoralty there had
been convictions in that court for desertion of upwards
of fifty seamen, and that the fines imposed in cases
in which sufficient proof could not be obtained to
establish the highest offence amounted to 1251.
The LORD MAYOR animadverted upon the dis-
graceful abandonment of their vessels by seamen at
foreign ports, and the serious inconvenience to which
such desertion led. He could not, he said, have be-
lieved it to be possible until he had had such con-
vincing proof of the fact, that such utter disregard
had been displayed by the seamen to the interests of
their employers, and he considered that the greatest
benefits would arise from unflinchingly carrying the
Act into effect.