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

Vbtrti Wbition

THE CASE OF THE REV. DR.
HAMPDEN

QUEEN'S BENUH.-(THIS DAY.)

(Sittings in Banco, before the LORD Oniar JUSTICI,
and Justices PATTBSON, COLBRIDGIB, and ElLa.)

TUB QUM V. Van A.RCHEISIIOP Or CANTHRBUAY.

The arguments wore resumed at the sitting of the
Court.

Mr. BABEL ET proceeded.—He said—Yesterday
he called the attention of the Court to episcopal elec-
tions prior to the passing of the statute of Henry the
Eighth ; he thought by going back to the period an-
terior to the Reformation that their Lordships would
the better arrive at the intentions of the Legislature
of that day in passing the statute in question ; and
that they would the better arrive at the legal meaning
of the word " confirmation," which, he contended,
being a legal term, meant " confirmation " according
to law. He then passed to the statute, and con-
tended, that every impartial person must, after a
careful perusal of it, be of opinion that the object of
the passing of the Act, and the intentions of the King,
as evinced in history, was that the Act was simply passed
to abolish the power of the Pope in this realm. He
then submitted—and he submitted the point now
with confidence—that from the time of the passing of
Magna Charta up to the latest proceedings by the
Legislature in natters ecclesiastical, that it was the
intention of the Legislature to continue those privi-
leges to the clergy which they had formerly possessed
—namely, the power of electing those who were to
be placed over them, and who in all things apper-
taining to them exercised full spiritual jurisdiction.
He apprehended that the whole scope and history of
the constitution of this country showed that no
popular right such as this should be interfered with
by legislative enactments, and he should, he con-
fessed, be content to try the Act of Henry VIII. by
the test of the popular voice ; for Bacon, and other
eminent writers, held that it was an inviolable prin-
ciple in our constitution, that unless the popular
voice consented to any public matter it could no;
be decided in the affirmative. The choice of the people
was always respected. Thomas Sims, an eminent and
curious writer, speaking of the election of bishops,
said, in words which deserved to be immortalised and
handed down to posterity, that persons appointed to
the office of bishops should be free from all ill-repute,
and if scandalised and of bad life, that these things
should be inquired into by a cf,mpetent tribunal, and
that he should be rejected if he were found unfit to
take so high an office. If the people in the olden
time were not entitled to vote for bishops, they were
entitled to oppose their appointment. He could cite
numerous other opinions to the same effect; but he
would not occupy the time of the Court at too great
a Antiquities, book 4, C. 2, spoke of the right of the
people to object ghtoaln in his work on Ecclesiastical
their bishops. Blackstone, and in
fact every ancient writer, agreed in stating that the
people possessed an inherent right to elect their she-
riffs and other persons to whom the safety
.of their lives
and property were entrusted, and he implored the
Court to transmit those rights to posterity unim-
paired.
Mr. Justice COLERIDGE asked the Learned Coun-
sel if his argument was not this—that the people had
a right to elect their bishops ?
Mr. BADELET said it was. He did not wish the
Court to introduce anything that was new, but to
preserve what was old. He contended that the Dean
and Chapter were compelled to elect those whom the
Crown nominated; but that this did not affect the
right of the Metropolitan to refuse to confirm or
the people to object. He contended further, that if
a " sham," that the confirmation was
athsehealmectailosn was
also.

Mr. Justice Eire said there must always be a con-
secration.

Mr. BADELAY said the Metropolitan only pos-
sessed the right to consecrate, and he might refuse to
do so. _ _

Mr. Justice COLERIDGE inquired how bishops were
many lePl
thingsuenee whichi f the
confirmed when the Pope exercised power in this
realm ?
Mr. BADMILBY said
to the Metropolitan tob the
carry Pope
out generally
mseonutya, bull
but
Fgeznaptensiitlanb.is
sometimes the Pope,
carriedrol out the ceremony with-
out a process in the Ecclesias-
eeolua
oridfts Justiceotofbfet Rh
sCeota:MtLeee't
got a pallium f Rome and reminded
tory thatthe Learned
I%7iilism
rein ome, and refused to
tßoiucuatfluth:
until he had made terms with the Pope.
Mr. BADELRY said this was so. What
giveC otinri st.
would be
might militate
were
angoaitnsatlitohweierdapto..
object to persons proposed as bishops ? There might
be might
bethemcoann
pointiatent, known only to -
persons residing in the
dioceses, where they were sought
to be appointed, and
might not abuses creep into the Church if
acquainted with these things were prevented from
boldly coming forward at the solemn ceremony of
confirmation, and stating grounds of opposition which
were, perhaps, known only to them ? There was no
more solemn ceremony than that of
confirming a
bishop, and the right of the people
with respect to it
ought not to be lightly treated. A bishop
was placed
over the clergy in his diocese n, • ay, more, he was
empowered to ordain ; and if an improper person was
appointed, was it not possible that the bishop might
ordain persons disqualified to fill the sacred office of
clergymen ? Looking at the mere rights that ordi-
narily subsisted between man and man, he asked the
Court, if a person, who knew of errors of doctrine,
or of scandal, in the life of a person to be appointed
a bishop, was not to be permitted to come for-
ward to prove them if he could ? If the Court
decided against the issuing of the mandamus, they
would decide that the Archbishop Was a mere ma-
chine. [Sir Fitaroy Kelly, who has been absent two
days, owing to indisposition, here entered the Court,
and took his seat in the Queen's Counsel box, under
Mr. Badeley.] Now it did not appear that the
Archbishop was subject to prwmunire. flacon, though
he spoke of the penalties that attached to the receiving
of bulls front the Pope, said nothing about those high
officers of the Church being subject to such a penalty.
He was at a loss to know how, looking at the statute,
the Vicar-General could decide that those who ap-
peared at Bow Church could render themselves liable
to prasmunire, or how those who heard them ren-
dered themselves liable to those penalties. This was
clearly the opinion of Lord Bacon. The meaning of
the act was, whatever the election might be con-
sidered, nerely judicial, and was required to be done
" in due form of law.
Mr Justice ERLE—If the act of confirmation is a
judicial act, what is to he confirmed or annulled ?
Mr. BADELEY—The election. Henry the Eighth,
with all his tyranny, did not take a-Nay the power of
the bishops either to confirm or not.
Mr. Justice COLERIDGE inquired if the tempo-
ralities were restored before or after consecration ?
Mr. BADELET replied not till after.
Mr. Justice COLERIDGE further inquired if a man-