The Sun.
London, England, 1848-01-27 00:00:00

THE CASE OF THE REVEREND

DR. HAAIPDEN.

COURT OF QUEEII;S BENCH, Jan. 26.
(Sittings in Banco before the LORD CHIEF-JUSTICE
and Justices PATTFSON, COLERIDGE, and ERLE.)

THE QUEEN V. THE ARCHBISHOP OF CANTERBURY.
(Continued from our Afternoon Edition of yesterday).
Dr. ADDAMS said—lf this mandamus were granted,
his doctrine would be at once determined, and if it was
proved that his doctrine was not erroneous, he would
then be in a position to take his seat on the bench
with greater satisfaction to himself and the public at
large, and if the suspicions with respect to his
doctrine should be confirmed, he would not of
course be a bishop "to all intents and purposes,"
and the Crown would again have to proceed to
a fresh election or appointment. If the present
was not a case for mandamus, he did know what
could make a case ; no other course was open to: the
parties if they did not succeed in the present motion.
He did not consider that the case Lucy v. Bishop
of St. David's, referred to by the other side, was any
authority upon the pint, because the allegations of
the Bishop were rejected by a superior court, and
there was not, of course, any appeal. The present
case was totally different from that, for if the allega-
tions in this eaie had been heard when tendert d, an
appeal would have been brought to a supreme court.
With respect ,to the other authorities cited by the
other side, he would not go through them, but leave
it to those Learned Gentlemen who would follow him
to do so. The Learned Doctor concluded by apolo-
gising for the great length to which his address had
extended, and trusted that the Court would grant the
mandamus.

Mr. A. J. STEPHENS followed on the same side. The
object of the statute 25 Henry VIII. was to annul the
power of the Bishop of Rome in this country, and
that the Archbishop of Canterbury should be allowed
to confirm and consecrate without any appeal to
Rome. This power was not first granted to the
Archbishop by that statute, but, on the contrary, was
recognised by it. The sentence pronounced by the
commissioners for the Archbishop with respect to the
confirmation of Dr. Hampden proved that the Arch-
bishop acted in a judicial manner, and in 17 Viner's
Abridgement, title 0. E., it was stated, " that
if sentence is given by any ecclesiastical judge,
it is to be pronounced by the common law
judges that it is according to the ecclesiastical law."
In Glloson's " Codex," page 114, it was stated " that
the election, prior to confirmation, is an incompleted
act, and may be vacated by the refusal of the person
to accept, and by the King to admit, and by proof
of any legal incapacity at the election. In support
of the judicial character of the Archbishop in the
confirmation of a bishop, the Learned Counsel cited $,
Salkeld, page 71, Godolphin's Repertorium ; the
case of Peacock, 5 Coke, page 58 ; Lord Raymond,
page 541. It was evident, therefore, that the
finding was a judicial one. Now, what were
the facts of the case ? The confimation was
appointed to take place at Bow Church, opposers
were duly cited to appear, and three beneficed clergy.
men of the Established Church came forward with
their proctors and counsel, and with their charges
properly reduced to writing and legally signed, and
they were refused a hearing, and he contended that
there was therfore an absolute denial of justice in
the case, and no other remedy was left for the
parties but that of mandamus. No appeal could be
brought, because the parties had nothing to appeal
against. The Court had power to issue man-
damus in this case. In support of the argument
that the Court had the power to issue mandamus the
Learned Counsel cited Rex v. Mayor of rovvey, the
case of Bagley, reported in 11 Coke, 118 ; Rex v.
Baker, 3 Burrell's Reports, 1267, and in this case
Lord Mansfield stated in his judgment that writs of
mandamus were introduced to prevent disorder from
a failure of justice, or defect of police; therefore it
ought to be used on all occasions where the law estab-
blishes no specific remedy, and where in justice
and good government there should he one.
The case of Rex v. Bishop of Lincoln, 2 Term Re-
ports, page 338, in a note, Rex v. Bishop of Ely, 5
Term Reports, page 477, also bore out his views of
the jurisdiction of the Court. Then it had been said,
on the other side, that the Court would not issue
mandamus in cases where penalties might attach for
obedience to the writ. The case of Rex v. E►erett,
cases of the time of Hardwicke, page 261, was a
cause decidedly in opposition to that view of the
case. Even with respect to points of practice, the
Court had interfered by writ of mandamus. The case
of Rex v. the Justices of Caernarvon was a case in
point.
Lord DENMAN—In that case the Court has some
reason to think they ought to re-consider their de-
cision.

Mr. PEACOCK followed on the same side. It had
been assumed by the other side that the King had the
same power as the Pope. He contended that he had
not; the King could not consecrate a bishop.
Mr. Justice COLERIDGE—He had the same power
of dispensing.
Mr. PEACOCK submitted that he had not the power
to dispense with the question of age, as that subject
was regulated by several statutes. One of the ques-
tions submitted to the Archbishop on his consecra-
tion was, " Will you be faithful in ordaining bishops ?"
Now, would it be considered that the Archbishop
would be bound to lay his hands upon any person
whom he knew to be incapacitated legally from the
performance of his duties ? His Learned Friend
Dr. Bayford had said that a profound darkness rested
over them with respect to what was the canon law.
There was, then, the greater necessity for en-
deavouring to obtain what light they could upon the
subject, and he conceived that the best mode of ob-
taining this light was from the practice which had
existed for centuries in the confirmation of bishops,
and that practice had always been to cite any opposer
to come forward. Now it appeared from the affida-
vits in this case that the parties cited to appear were
not allowed a hearing. Suppose, for instance, the
Archbishop previous to his consecration of a bishop
should put the question to him, "Do you believe in
the Scriptures ?" and the bishop was to answer, " I
do not." Would the Archbishop be liable to prx-
munire if he refused to consecrate such a person who
had no faith in the Scriptures ?
Mr. Justice COLERIDGE—What is the nature of the
proceedings under preemunire
Mr. PEACOCK apprehended that it would be indict-
ment, and that the party would he entitled to plead
" not guilty," and thereby raise the whole question.
In the case to which he had just alluded, supposing an
indictment should be brought under prremunire
against the Archbishop, he would be entitled to plead
" not guilty," and show that the Bishop did not
believe in the Scripture ; and he apprehended that
would be sufficient grounds for setting aside the in-
dictment. There was no provision made in the sta-
tute for the Crown doing any act tantamount to
confirmation or consecration, should the Archbishop
refuse to do either the one or the other; but
if the Dean and Chapter should refuse to elect,
then the Crown had the power to nominate, which
clearly showed that it was intended to grant some
discretion to the archbishop in the matter of confirm-
ing and consecrating any person who might be
elected. He contended that the commission sent by
the Crown contained no positive command to confirm
at all events. It had been said that the present was
not a proper case for mandamus ; no other resource was
open, no appeal could lie, unless there had been a
hearing of the case. The parties had been refused a
hearing, and the only course to adopt was to call
upon the Archbishop by mandamus, from this Court,
to compel them to bear the parties. In the case of
Lucy v. Bishop of St. David's the parties had a right
of appeal, the case having been heard and decided in
one of the courts, and this Court could not interfere
by mandamus, and it would be found that in all the
cases cited where mandamus had been refused, it had
been refused upon the ground of a decision having
been given in the case. A writ of mandamus was
only a command to hear, and not to decide.
Mr. BADELRY—The king, by virtue of his pre-
rogative, had full power to call upon the Ecclesiastical
Courts to do right. It was clear that the commis-
sioners acting for the Archbishop at Bow Church had
mistaken the law, in refusing to hear the parties. It
was important for this Court to interfere by prohi-
bition in the case of excess of wrong ; and upon the
same principle the Court had the power of interfering
by mandamus in such a case as the present, where
there was a deficiency of justice on the part of the
commissioners. It had been argued upon the other
side that the Court could not interfere in matters of
ecclesiastical law. The present was not a case of
ecclesiastical law; it was a matter of statute law—
the construction of a statute—and it was fully com-
petent for the Court to interfere in such matters as
the interpretations of statutes. There was no doubt
that the Archbishop had a discretionary power. That
Power was deducible from the Scripture itself. St.
Paul, in his epistle to Timothy, ch. iii 21c1 and follow-
ing verses, and to Titus, ch. i., gave that power to
the bishop, and enjoined a careful inquiry into the
fitness of the persons to be ordained, and see that they
were not 'liable to any charge or imputation. The
canon of the Council of Nice, in the year 325, and of
Antioch in the year 375, of Laocliccea in 372,the
Fourth Council of Carthage, in 387, and various
others, acknowledged this pow, r, and threw upon the
bishop the duties of inquiry into the fitness of candi-
dates previous to their ordination by him. The:
Learned Counsel having concluded reading the
authorities with respect to the rule of the canon lass
in foreign countries, stated that he apprehended that
that. was the rule received in this country, and he sub-.
mitten that the arguments of his Learned Friend the
Attorney-General, that the canon law was to be consi-
dered in this country as foreign law was a total
mistake. In support of that proposition the
Learned Gentleman referred to the argu-
ments of the late Sir William Follett in the
House of Lords, in which that learned and