The Legal Observer, DIGEST, AND JOURNAL OF JURISPRUDENCE. SATURDAY, FEBRUARY 5, 1848. “Quod magis ad Nos Pertinet, et nescire malum est, agitamus." HORAT. THE JUDGMENT OF THE QUEEN'S been disposed of, as concisely as the subject BENCH IN DR. HAMPDEN'S CASE. will admit. The application to the Court of Queen's Bench was for a rule calling upon the Archbishop of Canterbury and his THE Term has concluded, and the case Vicar-General to show cause, why a mandawhich excited the greatest interest on the mus should not issue directed to them, part of the public undoubtedly is that upon commanding them, or one of them, at a which the Court of Queen's Bench has been court to be therefor duly holden in the appealed to, in reference to the confirma- cause, or business, or matter of the confirtion of Dr. Hampden, the Bishop elect of mation of the election of the Rev. Renn Hereford. In pursuance of an habitual de- Dickson Hampden, Doctor of Divinity, to termination to avoid entering upon the dis- the Bishopric of Hereford, to permit and cussion of topics of a purely controversial admit to appear in due form of law, the or political character, we have heretofore Rev. Richard Webster Huntley, Clerk, refrained from any allusion to the circum- Master of Arts of the University of Oxford, stances connected with the appointment of Vicar of Alderbury, in the county of Salop, Dr. Hampden to the see of Hereford, or to and Diocese of Hereford, the Rev. John the extraordinary proceedings which have Jebb, Clerk, and others, to oppose the said followed that appointment. The application confirmation of the election of Dr. Hampden, to the Court of Queen's Bench, in reference and to hear and determine upon such oppoto those proceedings, however, has invested sition, and upon the articles, matters, and the subject with a degree of professional in-proofs thereof. terest, and given it a permanent importance, The affidavits, upon which the rule had which not only justifies, but demands, some been obtained, set forth, the vacancy in the notice of the case in a work professing to fur- bishopric, the congé d'elire to the Dean and nish a record of legal decisions. The argu- Chapter, the letter missive of the Crown, ments of counsel on both sides occupied the declaring the piety, &c., of Dr. Hampden, court for four days, and are allowed on all and the election returned under the chapter hands to have been most able and elaborate, seal; that her Majesty had issued her -evidencing great learning and research, letters patent confirming the election, and and there is little doubt that these argu- commanded the archbishop to confirm and ments, and the judgments founded upon consecrate the bishop elect; that the archthem, will be referred to long after the per- bishop then directed the vicar-general to do sonal matter which has given rise to them is what was commanded; and that a court forgotten. was assembled to confirm the sentence. Under this impression, we proceed to The objectors, it was stated, appeared not state the question submitted to the Court of for the purpose of impeaching the process Queen's Bench, the facts upon which it was of the election, but of showing that they founded, and the manner in which it has were prepared to enter into an opposition VOL. XXIV. No. 1,039. P 334 The Judgment of the Queen's Bench in Dr. Hampden's Case. to the confirmation of the bishop, founded court would not grant a mandamus to it. on two books written by him, which were These parties could not come to the court alleged to contain doctrines in manifest for a mandamus on a mere question of denegation to certain things set forth in the doctrine, and not of temporal right; but, at book of Common Prayer. all events, even if the archbishop had done wrong, he could not retrace his steps. He had nothing further to do in the matter. The Bishop of Hereford was already confirmed, and neither the archbishop nor the court could deprive him of his prelacy. The Attorney and Solicitor-General, as representing the defendants, appeared, assisted by two learned civilians and other counsel, to show cause against the rule, and the points on which they chiefly relied in opposition were fourfold :-1st, That by the In support of the rule it was submitted, statute 25 Henry 8th, the proceedings on that the election of the bishop was an inthe confirmation of a bishop were mere choate act, and that, unless it were consummatters of form, and that the duties of the mated by confirmation, it would not be archbishop, or his vicar-general, were of a good. Suppose that in the interval between ministerial, and not a judicial nature. The the election and confirmation, the person second point was, that, assuming the arch-elected as bishop became insane, or openly bishop was not a mere ministerial officer, became reconciled to the Church of Rome, the remedy against him was by appeal, and could it be said that his election would be not by mandamus. The third point was, good to all intents and purposes? Conthat if the parties complained of did not firmation was as much a judicial act as conconstitute a court, properly speaking, but secration was a spiritual act; and although might be considered as assembled for a the archbishop was required to consecrate quasi judicial inquiry, that that court pos- with all speed and celerity, it by no means sessed no means of investigating the subjectmatter of this peculiar charge. The fourth objection was, that a mandamus in this case would not lie. It was strongly insisted on the part of the archbishop, however, that the statute of Hen. 8th disposed of the whole question, and that the law and practice under it were as follow: “The dean and chapter certified the vacancy to the Crown, the Crown sent a congé d' elire, accompanied with a letter missive to the dean and chapter; they could only elect the person named in that letter, and if they did not elect within twelve days, the Crown named by letters patent. In the latter case the person so named then went to the archbishop for investiture and consecration, but if be was elected by the dean and chapter then the archbishop received a direction to confirm him, and if that was not done accordingly, certain heavy penalties immediately followed." followed that the archbishop was not to inquire into the fitness of the person to be consecrated, nor that his doing so would be any interference with the Queen's prerogative. It was admitted, that there was no prece dent of an archbishop having refused to confirm, but several cases were cited in which it was alleged that such a step had been contemplated. In reply to the argument, that even if confirmation were a judicial act, the proper remedy was by appeal, it was answered, that as the appearance of the opposers at Bow Church was not recorded, and their articles were rejected without being received or entertained, no appeal could lie. The opposers had not been heard, because the ecclesiastical judge misconstrued the act of parliament, and there would be no remedy, unless a manstrongly pressed upon the court, by Sir damus were allowed to go. It was also Fitzroy Kelly, that unless it was felt that The archbishop was directed by the every point was free from doubt, the safest statute to proceed with all "speed and course was not to determine the question celerity." It was true his vicar-general upon a motion for a mandamus, but to allow cited all persons who opposed the election the writ to go, and upon the return to the to appear, and there were proclamations writ, the matter may be placed in such a made for the opposers to appear, but that, train for inquiry as to allow of the case being and indeed the whole ceremony of confirma- carried, if it should be thought necessary, tion, was mere form, and not substance; before the highest judicial tribunal in the but there were cases analogous to this pro- kingdom. clamation, for instance, the challenge of the champion at the coronation. If any one accepted that challenge, would this court grant a mandamus to compel the perform ance of it? If the court of the archbishop was a court of competent jurisdiction, this The court took time to consider its judg ment, which was pronounced on Tuesday last. The judgment, as there was reason to apprehend from the constitution of the court, was not unanimous. As usual, when the convenience. 335 Judgment of the Queen's Bench in Dr. Hampden's Case.—Ecclesiastical Courts. judges differ, the junior judge delivered his was, therefore, of opinion that the rule for opinion in the first instance. Mr. Justice the mandamus ought to be granted. Lord Erle's judgment turned chiefly upon the Denman concurred with Mr. Justice Erle, construction to be put upon the statute 25 and differed from the view taken by Justices Hen. 8, and can scarcely fail to be con- Patteson and Coleridge. His judgment sidered as a very able commentary upon its contained many splendid bursts of eloquence. provisions. The learned judge came to the He was decidedly of opinion that the rule conclusion that the object of the statute was, nisi that had been obtained for a mandamus to give the Crown the sole power of appoint- ought to be discharged, considering that if ment, and that the business of the dean and the court adopted any other course, they chapter, and of the archbishop, was merely would be giving encouragement to those ministerial. The act meant that nomina- theological animosities which he lamented tion should take place as before the passing to see existing in the Church, and proof the act, and the parliament of the day, ducing incalculable public mischief and inno doubt, intended that the word "confirm" should be taken in its usual sense. If the The practical result of this judgment, confirmation had been more than a mere which it took the learned judges nearly four matter of form, there was no doubt that it hours to deliver, is, that the court being would have been exercised, but no one in- equally divided, the application for a manstance had been put forward in which the damus falls to the ground. The matter right here contended for had been used and stands as if the question had not been admitted in any country or at any time. brought before the court. So much of He thought, therefore, that the rule for a partizan feeling and controversial zeal has mandamus should be discharged. Mr. been imported into the discussion, that, in Justice Coleridge on the other hand, was one sense perhaps, it may be considered of opinion that the applicants were entitled matter of congratulation that neither party to the mandamus for which they applied, has obtained a triumph. We confess, howand delivered a very learned and elaborate ever, we should desire to see those who judgment in support of this view. The preside in our courts of justice above all Court of Queen's Bench (he said) exercised party considerations, and lament that any jurisdiction over all inferior courts, and the occasion should arise in which predilections fact that parties who had a right to appear of this nature can be suspected to have in one of the inferior courts were refused a influenced their decisions and created a hearing was a sufficient reason to his mind diversity of opinion amongst the judges. to grant a mandamus. The applicants had In concluding this hasty notice of what is made out a case so clear and strong, as to generally known as the Hampden controraise a belief in his mind that the conclusion versy, we shall only observe, that the apto which they came was right, and that they pointment in the first instance was unforwere entitled to the writ for which they tunate,-the proceedings by which it was asked. By the practice of this court in issuing followed-questionable, and the legal result mandamus, absolute certainty was not re- altogether unsatisfactory. quired as the ground for such issue; the question was generally more properly decided afterwards upon the record in a higher CONSTITUTION OF AT DOCTORS' COMMONS. court. The province of the court appeared THE ECCLESIASTICAL COURTS to him to be more that of a grand than a petty jury; they were simply to inquire whether enough was proved to allow the case to go any further. Upon these grounds, though he admitted not without HAVING copied at considerable length the considerable doubt and difficulty, he thought observations introduced by Dr. Addams in the rule for a mandamus should be made the case of Geils v. Geils, reflecting upon absolute. Mr. Justice Patteson agreed the constitution of the Arches Court, and with Mr. Justice Coleridge in the conclu- the relation in which the learned judge sion he had come to, apparently with less stood to some of the parties and witnesses, hesitation and difficulty. He was clearly as well as to the leading counsel and proctor of opinion that the confirmation of a bishop for the promotant, Mr. Geils, a sense of by the archbishop was a judicial and not a fairness and justice obliges us to publish ministerial act, and that such being the the reply which Sir Herbert Jenner Fust, case, the opposition to the confirmation of the learned judge, has thought fit to make the bishop ought to have been heard. He in reference to those observations, and to 336 Constitution of the Ecclesiastical Courts at Doctors' Commons. the course of proceeding adopted by the lead-way in which the court or any person ought to ing counsel for the respondent, Mrs. Geils. After the arguments had concluded, the learned judge stated that, as to the general merits of the cause, he reserved his judgment for further consideration, and he is then stated, according to the Times report, to have proceeded as follows: be judged. Let them hear both sides, and see if the grounds of the decision are satisfactory or not. The court thought it right in this case, on the last occasion when it was argued, to make some observations upon the manner in which the case had been conducted, with reference to the language which had been used, and to its effect upon the character of the court, the character of the bar, and the character of "But some circumstances have arisen in the the profession at large. I must say, that when course of the discussion of this case, in respect I hear such epithets applied to witnesses in a to which the court thinks it necessary, at the cause, as calumniators, liars, slanderers, satyrs, present time, to make one or two observations; I think, blackguards, rascals, and envenomed some of them more of a general character than fiends, surely I am justified in saying that such exclusively applicable to the circumstances of language is not calculated to support the chathis case. I allude most particularly, in the racter of the court or the character of the profirst instance, to the charge brought against fession with the world at large; and the learned the court of general corruption; for the court advocate, after the use of these epithets had has been charged with undue partiality, not in been objected to on the other side, refused to this case only, but in other cases where one modify them, but justified their application. particular learned counsel has been engaged on He repeated them, and wished them to be reone side, and another learned counsel on the corded, and expressed his regret that the other; that the court has suffered itself (ac- English language did not furnish more opprocording to the charge brought against it) to brious terms, for if it did, he said he would be swayed by undue motives-that of prejudice discard those he had used and employ them. I against one side, and of favour towards the ask, whether it is for the character of the bar, other. It is enough for the court to meet with and for the honour of the bar, that observations a general denial a charge of this description; like these should pass unnoticed? and if it but it is quite impossible that any person what- ought to be endured that such epithets are to ever, acting fairly and impartially, can listen be used in this court as if they were so compatiently to such an imputation upon the mon as neither to create surprise nor provoke judicial office, resting upon assertion on one reproof? I expressed my opinion as to the use side, and met by denial on the other. But I of those epithets, and I see no reason to alter must say, that I repel with indignation such a my opinion. With respect to another part of charge against me. The conduct of the court the case, the learned advocate thought fit to is before the profession and the public, and it read with a peculiar gesture and tone of voice, is for them to judge whether the court is liable a part of the evidence of one of the witnesses in to such an imputation or not. Such a charge the cause, and repeated the words with the of corruption and partiality cannot be received same gesture and tone; and it did create a on the allegation of a counsel who, under all sensation in the mind of the court. The learned circumstances and in all cases that I have be- counsel was at liberty to read that part of the fore me, in which he is concerned, seems to evidence if he thought fit to do so; but only make the cause his own, and to identify him- those who were present, and heard and saw the self with his party, and, according to his own manner in which that part of the evidence was opinion of the case, holds his client's character read and repeated, could judge of the effect to be unimpeached and unimpeachable, and which his tone and gesture produced. Again, that of the opposite party the reverse. An when I was told, at the conclusion of his reply, allegation of this kind, so made, never can be that if in any one respect the sentence of this received as proof of such an imputation against court was adverse to Mrs. Geils, the case would me. I know of no other test by which my be immediately appealed to the Privy Council, judgments can be tried than with reference to and if the Privy Council affirmed the sentence the appeals made from this court to the superior of this court, there would be an appeal to ancourt, and by ascertaining what proportion of other tribunal-that of public opinion, which them has been affirmed or reversed; that is would neither affirm the sentence nor remit the the only test of the soundness of the motives cause, what was this but an attempt to deter of my decision, and by that test I have not the least objection to be tried. The grounds of the decisions of this court are all before the public, and the public may therefore determine for themselves by reading the reported cases, whether the grounds of the decisions are satisfactory or not. But if persons will come to a determination after hearing one side only, and, assuming that what is brought forward on one side is true, come to a conclusion as to the conduct of the court, they must be left to the enjoyment of that opinion; but that is not the the court from forming its own judgment on the case? In this particular case before the court there was an appeal, in an earlier stage of it, from the admission of Mr. Geils allegation, which was admitted with reluctance by the court, and not without some deliberation and considerable reformation. That appeal was carried up to the Privy Council, and by the Privy Council the sentence of this court was affirmed, and the cause was remitted to this court. Is it to be said that this court was biassed in its judgment and decided wrong, Constitution of the Ecclesiastical Courts at Doctors' Commons. $337 when its sentence was affirmed by the superior deliver the interrogatories to be put to the The learned judge then proceeded to a very important point of professional practice. He said, out to his client as unworthy of his confidence or not capable of advising him? He must appear in the eyes of his client as unworthy of confidence, or incapable of conducting his "What I allude to is this:-In the course cause to a successful issue. But, unfortuof the discussion two interrogatories were nately, the court is not in a condition to lay read (the 67th and 68th); and with re- down any rule on this point; the court can ference to the particular facts which are the lay down no rule, as it knows nothing of any subject of those interrogatories, I was told that case until its attention is called to it, and then in this case all the pleadings and answers it can only express its opinion whether the and interrogatories were drawn by the learned practice be professional or unprofessional. But advocate himself without any communication the remedy is in the hands of the proctor himwith the proctor acting for Mrs. Geils; and it self; he is capable of applying a remedy, and appears from the evidence that some of the he ought to do so; and if he submits to be witnesses (two of the most important witnesses) made a puppet or machine, he must take the had been seen and communicated with by the consequences of it. All the court can do is to learned advocate. It appears to me, and I do not express its opinion. I say that this mode of hesitate to express this opinion, that this course proceeding is quite irregular and improper, is altogether unprofessional. The proctor is and tends to pervert the interests of justice, to interposed between the party and the counsel. obstruct the due conduct of causes, and is He is to instruct the counsel, to collect the fraught with prejudice, not only to the chafacts of the case which are proper to be brought racter of the proctor himself, but to the inbefore him, and to ascertain from the witnesses terests of parties and of the public. All these the facts to which they can depose. It is his observations apply with peculiar force to the duty to put the proceedings in a proper form, practice of counsel seeing the witnesses, which in the shape of an allegation, to lay them before is an entirely irregular course of proceeding counsel for his supervision, to see whether the in this court and in all others. I apprehend facts are pleaded in a proper form, and the it would never be permitted in the courts of counsel is at liberty to revise the pleadings, to law or equity, and it is highly improper to be call for additional facts if necessary, and sug-permitted in this court." gest alterations and omissions, and, if it be "It has been held out that the court proper, he may draw the whole over again, but The subject of the judge's supposed difference may arise. |