The BISHOP of EXETER
presented the petition of which he had given notice. In doing so, he must, in the first place, be permitted to say that he had not sought the office of presenting this petition. On the contrary, it had been his wish to decline it, and he had written to the petitioners intimating his wish that it should be put into the hands of their own diocesan. The petitioners, however, answered, that as the petition had reached his hands, they hoped he would consent to present it; and it now devolved upon him to present the petition to their Lordships. It was not an ordinary petition. It proceeded from several conscientious clergymen of the archdeaconry of Bucks, who approached this House, praying that it would deliver the Church from one of the greatest oppressions—one of the most intolerable violations of the rights of conscience—which had ever been inflicted upon any Church since the era of Christianity. The petitioners prayed their Lordships for the repeal of so much of the Statute of the 25th of Henry VIII. as rendered deans, chapters, and bishops, liable to the penalties of a prœmunire in the discharge of their respective duties in the election and consecration of bishops in the Christian Church. Heartily concurring with the petitioners in the object of their petition, he did not yet know whether he could go with them in all their views, for he did not know the extent to which they wished their Lordships to interfere; but this he was anxious to say on his own behalf, that if there were any of the clergy, or any of Her Majesty's subjects, who wished to interpose any other than a wholesome check on the exercise of the unquestioned prerogative of the Crown—a prerogative which he hoped would ever remain unquestioned, because he thought it essential to the peace and benefit of the Church—he repeated, that if any persons went the length of wishing to alter the law, so as to trench upon the rights of the Crown to nominate bishops, then he, for one, was 633 not the man to go with them in such a scheme. On the contrary, he would be among the foremost to say "No" to it. But the reverend petitioners did not indicate that they had the slightest notion of such a change—they wished to be relieved from a cruel oppression—from an Act which, from the construction which had been put upon it, was nothing less than a direct persecution. With the prayer to be relieved from this persecution, it was that the petitioners came before their Lordships. Now, so far as the election of bishops by deans and chapters was concerned, he (the Bishop of Exeter) certainly thought the provisions of the Statute of the 25th of Henry VIII. was unmixed tyranny. He thought the course prescribed in the Statute of Henry VIII. which directed deans and chapters to proceed with the forms of election, accompanied by solemn religious service, and at the same time compelled them to elect any individual, however unfit they might conscientiously feel him to be, under the penalties of prœmunire, was so monstrous and so oppressive that it was only necessary to mention it in order to secure their Lordships' sympathy with the petitioners in wishing to put an end to it. If the Crown directly nominated the bishop, and then suffered the Church to interfere in a proper, due and wholesome manner for the purpose of seeing whether the party so nominated was canonically qualified, and was not canonically disqualified, he should think such a law a proper law; and he hoped that Her Majesty's Ministers would take the matter into consideration, and that, while they preserved the prerogative of the Crown to nominate the bishops, they would endeavour to assert the cause of their Church, so that no unsound divine, no immoral man, no man disqualified by any cause which the canons recognised as a just ground of objection against consecration, should be admitted into the episcopal order. He hoped the Government would give that assistance to the Church. The ceremony of election was conducted with solemn forms, and accompanied by divine service. After the election was made and announced to the people, the electors, with all the assembled multitude, went and sang Te Deum in honour of the elected man; and if such an honour was to be done him, he ought to be known and felt by all to be worthy of it; else such a course of proceeding would be blasphemous if he were believed by many of those present to be an 634 unworthy man. He begged to be permitted to say, that in these remarks he cast aside anything like allusion to any particular instance, and applied himself to the general question; and in any observations that he had made in reference to the possibility of an improper person being nominated bishop, he assured their Lordships that allusion to any particular individual was not intended. He might, however, be permitted to refer to events which had recently taken place. What had occurred at the late election of a bishop? On that occasion two of the electors, at least, thought that the individual nominated was such as they could not conscientiously vote for. Those individuals, he hoped—he was sure they ought—felt themselves bound to abstain from joining in the Te Deum in honour of the election of the individual elected. Here let him observe, that the very fact of a minority having voted against the person nominated, presented in the strongest light the unreasonableness as well as injustice of this statute. The guilt of a person disobeying the law is, in reason, just the same, be the number of those who join him in his disobedience more or less. The individual who refused to obey the Royal mandate, was as guilty of disloyalty if he voted alone as if a number voted with him; and yet such was the capriciousness of this statute that the law was not violated if the election took place; and, notwithstanding that they had been told on high authority that the very rev. Dean of Hereford had announced his intention of violating the law, by declaring that he could not vote for the person nominated by the Crown, no law was really violated, because the recusant Dean being in a minority, the election was not hindered or prevented. After the election the confirmation followed; and he must say that he hoped that the construction put on the Statute of the 25th Henry VIII. by part of that learned bench, which devoted so much of its time and extraordinary talents to the arguments on this question on a recent occasion—he hoped, he repeated, that the opinions of those two learned individuals who thought that the confirmation of the election of a bishop was a judicial act, would ultimately prevail as the law of the land. He was perfectly certain that the noble and learned Lord who presided with so much honour to himself over the Court of Queen's Bench would not be surprised if, when one-half of the learned bench expressed on a recent occasion a 635 judgment in conformity with the Gospel, with the rights of the Church, and the liberty of the subject, a Bishop should now venture to express his hope that that judgment might ultimately prevail as law. He would not believe, while a doubt could be entertained as to the construction of an Act of Parliament which would make it the Magna Charta of tyranny, that that construction would be allowed to continue; and in this case the equal division of the opinions of the Judges justified him in saying that it had been declared doubtful by the highest court in the land—so doubtful that that court itself could not solve the doubt—whether the Bishop of Hereford had been confirmed; and in not merely wishing, but in hoping, that the opinion that the confirmation of a bishop was a judicial act would ultimately prevail as law. It was urged, when the question was argued, that the consequence of deciding that the confirmation was merely a ministerial act, would be to confirm as bishop any one who might be nominated by the Crown, even supposing it possible that the Crown should ever nominate an individual suspected, or not only suspected, but convicted, of some atrocious crime. This, it was argued, demonstrated the absurdity and impossibility of the statute bearing the construction put on it by the Attorney General. What did the Attorney General say to that? Did he say, "You are putting a case which it is not decent even to suppose—a case which cannot happen." Had he said so, it would have been much. But, no; the hon. and learned Gentleman was so confident of the principle which he stood up to defend, that he did not scruple to seize upon the hypothetical case as testing the principle for which he contended. He broadly and pointedly argued that in such a case the Archbishop would have no choice but to obey the Act of Parliament. But did not this construction involve a consequence so monstrous, as really to amount not only to an absurdity, but to a moral impossibility? Was it not monstrous to say that the Archbishop of Canterbury, in the exercise of his sacred duty—of the duty which he owed to God, and which was prescribed by the Scripture—to say that the Archbishop of Canterbury, would be by the law bound to consecrate to the office of bishop a person convicted of an atrocious crime [Lord CAMPBELL said, it was confirmation, not consecration, which was required.] The 636 statute required that the person chosen should be confirmed and consecrated; indeed the one was a consequence of the other. At all events, the Archbishop was to consecrate, in despite of his knowledge of his utter want of canonical qualifications—in spite of its being offered to be proved that the person nominated was canonically disqualified. In spite of all this he was to consecrate him bishop, if he would avoid the penalties of prœmunire. The noble and learned Lord said it was confirmation that was required. But still there remained the sacred duty of consecration, the non-fulfilment of which would be followed by similar penalties under the same statute. Now, if the Government were content to retain the right of nominating the Bishop, leaving to the Archbishop the unfettered discharge of his own duty to refuse consecration to an unworthy person—if, in short, they would permit some valid and sufficient check against the exorbitance of the Crown, and the Ministers of the Crown, in promoting to high and sacred offices, he would be content. But the Attorney General was not the only person who had stated extreme views upon this point. A much higher authority than he, one of the Judges of the Court of Queen's Bench—a noble and learned Lord then present, whose authority was of the very highest character—a man, elevated not merely by his rank, but far more by his high attainments—a man whose name would go down to posterity as the name of one of the most independent Judges of this or of any other age—had affirmed the same principle. He should quote the words of the noble and learned Lord as they stood reported in the public papers of the day. He was reported to have said—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 remonstrate. He can advise the Crown not to issue a congé d' elire. He may ask to be removed from the painful position of performing, or ordering to be performed, 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 congé 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 congé 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 637 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 proceeding.That was the course which the Chief Justice of England thought that the Archbishop of Canterbury ought to pursue. He might resign; but, if the Archbishop of Canterbury could not conscientiously confirm the appointment of an unworthy person, and that the law enjoined him to do so, he did not hesitate to say that the law was in an atrocious state. See the position in which the Archbishop of Canterbury was placed; the noble and learned Chief Justice said he ought to resign; but could he resign? As far as he knew, it would be difficult, perhaps he might say impossible, for him to resign—there never had been a precedent; no Archbishop of Canterbury had ever resigned. Where was the matter to end? They must in some manner get rid of the Archbishop, and appoint another in his stead; but he, too, being a conscientious man, would refuse to confirm and consecrate; he too, therefore, must resign. And so they must go on, till they could find some man base enough for their purpose—some man, in short, who would consent to become Archbishop of Canterbury for the express purpose of consecrating an unworthy man to be bishop. Her Majesty's Prime Minister must go about like Diogenes, with his lantern, but for an opposite purpose—to find a dishonest man—a man dishonest enough to be made Archbishop of Canterbury, in order to accomplish the unholy task prescribed to him. But even if such a man were found, would the object be obtained? No; they would be as far from this as ever. For the dishonest nominee to Canterbury must himself be consecrated. Four bishops must be found to place the sacred vestments upon one whose assumption of them would be a desecration. Did any man believe that four bishops could be found so to disgrace themselves? What must then happen? Why, they too must resign. A Royal Commission must be issued to four other bishops, who also being honest men must resign too. Therefore, he would repeat, the result must be to extinguish the episcopate of England, to cut off the apostolic succession in our Church. There was no man, be he Churchman, be he Dissenter, or even Infidel, who would not join him in saying, that if the law were as some high authorities held it to be, so detestable an enactment ought no 638 longer to pollute the Statute-book. But, whatever might be the state of the law at present, he ventured to believe that the great majority of their Lordships would go with the petitioners in saying that the law ought to undergo a change. In wishing this, he hoped and believed that the petitioners were not unreasonable; there was in the prayer of their petition nothing unreasonable or extravagant. They merely prayed that deans and chapters and bishops should not be visited with the penalties of prœmunire for doing what was their manifest duty to God and the Church. There was not any church or community, Christian or unchristian, which would not seek for the change of such a law. He would appeal to the noble and learned Lord near him, who was, he doubted not, attached to the Church of Scotland, of which he understood him to be a faithful communicant, and he felt perfectly sure that that noble and learned Lord would shrink with horror from any attempt to impose upon his Church anything like that tyranny which by the construction of this statute was sought to be forced upon the Church of England. Their Lordships would not have forgotten the recent events which had occurred in the Church of Scotland, in consequence of an attempt being made to require clergymen to induct a presentee into a benefice. His noble Friend opposite (the Earl of Aberdeen) had, with reference to that subject, brought in a Bill which had much tended to soothe down the agitation prevailing in Scotland—a Bill which was now law, and which enacted that it was only when presbyteries were convinced that the objections raised to a presentee were not well founded that they should be required to proceed with his trials and examination; and it was only if they found him to be well qualified for the ministry that they were to receive and induct him into the benefice. That was the utmost which was required from the Church of Scotland; and now he asked their Lordships—a great majority of whom were attached to the Church established in this realm—he put it to them whether they would consent that their own Church should be subjected to greater oppression and degradation than was a Church of which they were not members? They might withdraw the support of the State from the Church, but they could not un-church the Church; and he begged to assure their Lordships that the Church of 639 England would never commit suicide. For himself and his right reverend brethren, he was justified in saying that they were prepared to quit those walls, at the command of the courts of justice, if it were to become law that they should do so; and if their Lordships and the other House of. Parliament and the Crown decided that such should be the law. They were content to give up all their possessions—not those alone which they derived from the Church, but all their goods and chattels. They were content to undergo perpetual imprisonment if the law so commanded. They would suffer patiently every loss, every species of persecution which might be ordained; but he would tell their Lordships what they would not do—they would not do that which the law of God forbade. With the blessing of God, and in the strength of God, they would go forth—but they would never, never betray His Church, never wilfully and deliberately violate His law. They were told what were the qualifications demanded for the sacred office, and with the blessing of God they would never consent to bestow it upon an unworthy person. If the Minister of the Crown should recommend the appointment of an unfit person from a malicious motive—a charge which he did not think would ever be made against Her Majesty's present Government—yet if such did happen to be the case, if the Ministers recommended through error, or through the fallibility of human nature, a person manifestly notoriously unworthy, they would never consent, be the punishment what it might, be the consequences however severe, to confirm the nomination. He was not one of those, if there were any such, who wished that the Church should be separated from the State. He rejoiced and was thankful to see the Church established in this country; for he believed in his conscience that the establishment of the Church was of the utmost service in advancing the great end for which the Church itself was ordained. There were inconveniences which arose from this connexion. As long as these were inconveniences merely, they should be submitted to; and as long as nothing of a sinful compliance was required, the bishops and clergy would be ever found obedient and submissive to the law. He trusted that he might be permitted to say, that he hoped that the two learned Judges who differed from the Lord Chief Justice, might ultimately be found to be right in 640 the conclusion to which they had come. He adverted to this point again in consequence of a document having been recently met with by him which seemed to him to be conclusive. He would beg leave to read it to the House; but before he did so, he wished to remind their Lordships that after England had separated herself from the Church of Rome, before the Articles or the Liturgy of our Church were drawn up—before there were any authoritative institutions issued for men to guide themselves by—it was resolved by the wisdom of the men of that day—wisdom which might be compared not disadvantageously with that of any age or any country—to take counsel how they might provide for the wants of such an emergency. It was decided to advise the King to call upon the bishops and clergy to give to the people an exposition of the Christian doctrine, which would set forth the whole duty of a Christian man. The book which he held in his hand was a reprint of the result of their labours—it was entitled The Institution of a Christian Man. The work was put forth in the reign of Henry VIII., under the authority of that King. For much of it they were indebted to that great and illustrious prelate, Archbishop Cranmer, who, although there were several particulars of his life and character in which he was to be condemned, was nevertheless a shining light and ornament to the Church. He thanked the noble and learned Lord for doing justice to Cranmer. But he must be permitted to say, he thought the noble and learned Lord had gone too far in speaking of the recantation of Cranmer as not worse than St. Peter's. There was one great distinction, which removed the case of Peter to an incalculable distance. When he denied his Lord, the Holy Spirit had not been given, as it was given to the Church after the Ascension; Cranmer, therefore, sinned more against grace than Peter. Again, Peter's fall was brief, and his repentance immediate; Cranmer denied the truth in which he believed four or five times—he denied it as long as he had any hope of life, though in the end, in his latter moments, under the influence of the Holy Spirit, he nobly redeemed his previous errors. He would Bay that to no man was the Church of England so much indebted as to Cranmer. To him they owed the Articles; for although they were not formally drawn up till some time after, yet the great body of 641 them were prepared by him: to him they owed the Homilies, the Book of Common Prayer, and, not least, to him they owed the Preface to the Bible—a work the more precious and valuable from its being the first to assert among us the right of every Christian man to read his own Bible. The Institution of a Christian Man had been prepared by Cranmer; it had been submitted to the two archbishops, and to all the bishops, and to the most eminent divines and doctors, and corrected by Henry VIII. himself, with his own hand, as appeared from the preliminary statement given with the volume, setting forth that it had been issued by the authority of "His Highness." Henry VIII. having corrected it, it was printed, and the copy containing the autograph of Henry was deposited in the Bodleian Library. Now, one of the important facts to be recollected in this case was, that the book to which he was referring appeared, not before, but after the 25th of Henry VIII. That Statute passed in 1533. The book, which appeared in 1537, took some considerable time in the compilation, and the King spent five or six months in its correction; and he might be permitted to add, that at this hour the manuscript of Cranmer's comments, or the King's corrections, was in the British Museum. At that time seven sacraments were recognised in the Church of England, and the passage which he was about to read adverted to the Sacrament of Orders:—The second point, wherein consisteth the jurisdiction committed unto priests and bishops by the authority of God's law, is to approve and admit such person as (being nominated, elected, and presented unto them to exercise the office and room of preaching the gospel, and of ministering the sacraments, and to have the care and jurisdiction over these certain people within this parish or within this diocese), shall be thought unto them meet and worthy to exercise the same, and to reject and repel from the said room such as they shall judge to be unmeet there for. And in this part we must know and understand that the said presentation and nomination is of man's ordinance, and appertaineth unto the founders and patrons or other persons, according to the laws and ordinances of men provided for the same. As, for an example, within this realm the presentation and nomination of the bishoprics appertaineth unto the Kings of this realm; and of other lesser cures and personages, some unto the King's Highness, some unto other noblemen, some unto the bishops, and some unto other persons whom we call patrons of the benefices, according as it is provided by the order of the laws and ordinances of this realm. And unto the priests and bishops belongeth, by the authority of the gospel, to approve and confirm the person which shall be, by the King's highness, or the other patrons, so nomi- 642 nated, elected, and presented unto them to have the cure of these certain people within this certain parish or diocese, or else to reject him, as was said before, from the same for his demerits and unworthiness.Now, this work, he repeated, came forth with the authority, not only of Cranmer and of all the bishops, but of the King himself. It was a public—a State document. It must, therefore, be taken as contemporanea expositio of the Statute of 25th Henry VIII., which preceded it only by three or four years. If this was the law, as indeed all possible authority proved it to be, then the confirmation must be held to be a judicial act; and two great Judges—he would not say as great as the noble and learned Lord—but two great Judges of the same court had stated such to be the law. In conclusion, the right rev. Prelate was understood to assert the existence of an analogy between the power of the bishops to refuse to induct a clergyman into a benefice bestowed by the Crown, on proved canonical unfitness, and a power in the Archbishop to refuse to proceed to the consecration of a bishop on the same grounds. The right rev. Prelate closed his address by expressing a hope that the law, if proved to be so defective, would be altered, and moving that the petition do lie on the table.
The LORD CHANCELLOR
said: I do not anticipate that much difference of opinion will be found to exist between myself and the right rev. Prelate on the main point of the question. The right rev. Prelate began by stating that of nothing was he more convinced than of the necessity of preserving the prerogative of the Crown in the appointment of bishops. He also stated that he would abstain from discussing matters of recent occurrence, particularly certain proceedings in the Court of Queen's Bench.
The BISHOP of EXETER
I said no such thing; what I stated was, that I would not go into particular points connected with Dr. Hampden.
The LORD CHANCELLOR
That is to say, the right rev. Prelate was ready to discuss everything with regard to the proceedings except points personal to the individual they affected. I do not think my impression of what the right rev. Prelate stated was very inaccurate; he only draws a distinction between the proceedings and the individual they relate to. I understand the right rev. Prelate also to express a hope that what has recently taken place in the Court of Queen's Bench may be recon- 643 sidered, and that the decision would be reversed.
The LORD CHANCELLOR
I am unfortunate in so much misapprehending the right rev. Prelate; but certainly I shall abstain from discussing what has taken place in that court at all, principally, he-cause the Chief Justice of that court is present; from him anything respecting it would better proceed, and I believe he is ready to give any explanation. My object in rising is merely to state what the law is at present, and what it will be if the prayer of this petition is granted, or what the right rev. Prelate suggests be carried into effect. As the law now stands, and as it has stood for three centuries, the right to appoint bishops is vested absolutely in the Crown. That law the right rev. Prelate wishes to alter. [The Bishop of EXETER: No!] Then the right rev. Prelate likes the law as it is. [The Bishop of EXETER: No, no!] The right rev. Prelate, then, neither likes the law as it is nor as it is not! The law is, that the Crown shall appoint the bishops without reference to any other authority or power intervening between the appointment and its confirmation. How was that done by the Act of Henry VIII.? A form of election by the Dean and Chapter was preserved. The petitioners pray that the penalties attached to a refusal to elect be done away. Suppose the Crown took away those penalties; the Dean and Chapter might then either elect the person appointed by the Crown, or they might not. Does not the Act expressly say the Dean and Chapter shall elect the person named by the Crown? Asking to be relieved from the penalty was, in fact, saying—Give to us, the Dean and Chapter, the power of electing the bishops. It was a claim to a veto, or a right not to elect the party named by the Crown. The right rev. Prelate was favourable to the right of appointment remaining in the Crown; but he wished some other ecclesiastical authority, he did not explain what, whether the Archbishop or an assembly of the Church, to intervene between the appointment and its completion. The effect of it would be simply this: the Act of Henry VIII. makes certain matters matters of form; but the real power is reserved to the Crown. The proposal of the petition, and of the right rev. Prelate, has exactly the same object, only in another 644 shape; the difference being that the petitioners seek to make the nomination of the Crown the form, and the authority of the Church the actual power. I cannot say I am prepared to go that length; and if your Lordships are not prepared to say that the arrangement made at the Reformation, and then considered necessary for the preservation of its doctrines, shall no longer be a security—that the appointment of bishops ought not remain in the Crown, but shall be vested in the Church, then, as you value the Reformation—as you value the principles on which it is founded, and the blessings you enjoy from it, you ought not for a moment to entertain an idea of making an alteration in the provisions by which it is secured.
The BISHOP of CHICHESTER
said, that the subject was of the utmost importance, and he did feel that the whole question was not before them. He did not think the prerogative of the Crown was in any way assailed by saying there was yet another question involved in the election of a bishop. The noble and learned Lord on the Woolsack had spoken of the Act of Henry VIII. as a provision simply for guarding the prerogative of the Crown, in the nomination of bishops, against encroachment on the part of its own subjects. But he need not advert at any length to the arguments adduced in the Court of Queen's Bench; he need only remind the House that it was stated there over and over again, while high legal authority and much historical evidence led to the same conclusion, that such was not the object of the Act; it was intended simply to exclude the power of the Pope of Rome. If what the noble and learned Lord had stated must be received as correct, he feared they must prepare for a crisis in the history of the Church in this country. The bishops were prepared to submit to all that the law required of them, but they could not submit to a sinful compliance with the interpretation now put upon it. His sense of duty compelled him to say that if this doctrine prevailed, they must run the risk, if not the certainty, of a schism in the Church. He had felt it his duty to state his impressions with respect to this question; it was one requiring great caution and deliberation, and most serious attention ought to be bestowed on it by the Ministers of the Crown.
§ LORD DENMAN
said, that it did not appear to him to be a very convenient or proper course for a Judge to enter into 645 discussion in that place respecting his own administration of the laws in a court of justice. He could only say, of this case, that on no occasion to his recollection had he devoted so much time or bestowed so much inquiry upon any subject which had come before him, nor did he recollect any subject which had occasioned him greater anxiety. So that, if he had erred in any way, it was not without the most careful endeavour to prevent it, and the most diligent search after the truth; he would add that never, upon any occasion, had he risen from an inquiry with a more perfect conviction that he had the good fortune to arrive at it. He felt the deep responsibility which rested upon him, when he came to that conclusion in opposition to opinions which he so justly respected; but having done so, he as a Judge was not entitled to withhold it. However great the respect he felt for his learned brethren, and notwithstanding the extreme pain with which on every occasion one Judge differed from another on questions of great interest and importance, still that Judge must pronounce the dictates of his own conscience, and give full effect to his own opinion. He was, however, far from thinking that any expression that fell from him on that occasion could stand the test of the admirable keenness and sagacity with which the right rev. Prelate had observed upon it. But he might say, with regard to the particular passage on which the right rev. Prelate had most enlarged, referring to the alternative of the Archbishop's resigning, that the report was not exactly correct. He had mentioned that not as an alternative provided by the law, but as the last resort of that high functionary, if required to do an act condemned by his own conscience; and he had first spoken of the impossibility of supposing that such a case should arise. A deacon was not ordained without inquiry into his life and conversation; he did not become a priest without renewed inquiry; when the priest was recommended as one fit for the office of bishop—nominated by the Crown, and elected by the Dean and Chapter, and the Archbishop approved of the election and nomination; was it to be maintained that the result of all these advantages was to place him in a position in which all his enemies might have an opportunity of bringing forward any scandal against him?—in fact, that these presumptions in his favour should place him in a position in which all mankind might, if they pleased, come forward and indulge any prejudice against him? He 646 would not, however, enter on the argument, but he would merely state what it was that the Judges were called upon to do in the late proceeding in the Court of Queen's Bench. They were called on to issue a mandamus directing the Archbishop to hear certain objections against the Bishop of Hereford, on this specific ground that, according to the ancient practice, before confirmation, the appearance of objectors having been challenged, once at the church door, and once in the church, the Archbishop was bound to hear any objectors whatever prefer any objections whatever—in any country or in any age a practice not proved to have obtained—a one-sided proceeding, which provided for the assumed fact that no opposers would appear, but made no provision for hearing them, or urging their allegations if they did appear. In other ceremonies such forms had kept their place, but merely as matters of form. But on the late occasion, the form was sought to be converted into a practice powerful enough to set aside the appointment of a bishop by the Crown. For as his noble and learned Friend had truly observed, the power could not in fact be in the Crown if the Archbishop had a power, before confirmation, to call upon all opposers to come forward—to hear their objections—and, upon his opinion upon those objections, refuse the confirmation and consecration of the person nominated by the Crown. One expression had dropped from the right rev. Prelate (the Bishop of Exeter), as to the opinions of his (Lord Denman's) two learned brethren on the bench who had differed from him. He had called them "the friends of the liberty of the Church." He had noted the phrase, that he might found upon it this observation, that, in his opinion, no one who had an opportunity of considering the subject, could doubt that his learned brother Mr. Justice Erle and himself had conferred a great benefit upon the Church by putting a stop to the issue of the writ of mandamus. A document had been read by the right rev. Prelate, to which he had attached great weight. The right rev. Prelate had said, that this document showed the intervention of the spiritual authority to have been at that time contemplated in the appointment of Prelates. He (Lord Denman) would not commit himself to any opinion on the value of this argument; but he thought it clear that the paper referred to furnished an argument on the other side, which was also deserving of consideration. For if the King 647 and the Archbishop had their minds turned to that very subject, and yet had abstained from interfering with the Act of Parliament, this might be thought a proof that the spiritual authority could not interfere, as of right, with an appointment made by the Crown, though it might act, as it had in later times, in the way of remonstrance and persuasion, before the appointment was made. With respect to the petition presented by the right rev. Prelate, he did not think so harshly of it as his noble and learned Friend (the Lord Chancellor). He looked at it as merely seeking the repeal of the penalty of prœcemunir'e, as affecting certain of the clergy; and, as in his (Lord Denman's) opinion, the Archbishop was imperatively called upon to confirm the election of a bishop, he thought that penalty unnecessary. Indeed the penalty of prœ munire was in its own nature objectionable, and unworthy of a civilised country. No man ought, for any offence, to be placed out of the protection of the law, and he should gladly see the title prœmunire expunged from our code. He thought he could suggest a much better remedy in the present case, and would refer to another document, probably also penned by Cranmer, and approved by a much better King than Henry VIII.—an Act of Parliament passed in the first year of Edward VI. (The noble and learned Lord here read the repealed Statute of Edward VI., conferring on the Crown the deirect appointment of bishops.) The same power was given to the Crown with respect to Irish bishops by an Act of Queen Elizabeth, which was still in force. An Amendment of the 25th Hen. VIII., by substituting this simple process for the cumbrous machinery of congé d'élire and lettre missive, would be a great improvement of the law, and would avoid the scandal of similar questions arising in Westminster Hall for the future. To this extent he should be happy to lend his aid to the right rev. Prelate as a reformer.
highly approved of the line of conduct pursued by his noble and learned Friend; for he considered it would be most inexpedient as well as derogatory to the high character which he maintained, and the high position which he occupied, if he came before their Lordships in this irregular manner to justify the course which he took in his judicial capacity in the Court of Queen's Bench. No Judge, who had a proper respect for his character or his office, would set such a precedent. In the case to which such 648 frequent reference had been made, the Court of Queen's Bench must be considered as having decided the question: true it was that the Judges were equally divided in opinion, but the rule of law in such a case was against the issuing of a writ of mandamus. In a recent important case which was before their Lordships, and in which the question was the validity of marriages in Ireland without the presence of a priest apostolically ordained, their Lordships were equally divided, and yet the judgment was delivered against the validity of such marriages; and such marriages were in consequence now held by the law of England to be invalid. The right rev. Prelate had anticipated frightful consequences as likely to result if the law were to remain as his learned Friend had laid it down in the Court of Queen's Bench, and had referred to the Act of 25th Henry VIII. as an Act which was passed when the Reformation was not completed; but that Act as it stood ought more properly to be regarded as the 1st of Elizabeth, when it was revived—a period when the Church was presided over by Protestant prelates of the greatest learning and ability, who had decided upon the proper mode in which to conduct the ceremonies and proceedings necessary to the appointment and consecration of a bishop. The right rev. Prelate compared this case to those cases which took place with reference to the appointment of Ministers in the Church of Scotland by lay patrons; and he had referred to an Act introduced by a noble Earl (the Earl of Aberdeen) by which a power was given to object to the sufficiency of any person appointed to a living in Scotland; but the right rev. Prelate ought to recollect that in Scotland and England, when a person was appointed to a living by lay patrons, the presbytery and the bishop had a full power to inquire into the morality, the doctrine, and the learning of the person so nominated, and to refuse to admit him if he was not deemed fit in any of these particulars. It had been laid down that the Crown, and the Crown alone, had the power of appointing bishops; but he (Lord Campbell) would ask, did it follow, that because the Crown had that power, a Turk, a Jew, or an infidel, was likely to be selected to fill the office of bishop by the Crown? Did it follow that there was any danger of such consequences, if the judgment of the Chief Justice of the Court of Queen's Bench was admitted? That such a result was likely to follow from ad- 649 mitting the decision of his noble and learned Friend, was, in his (Lord Campbell's) opinion, an exaggeration of the right rev. Prelate, for he could not imagine how any such consequence could follow. His noble and learned Friend had stated that the person appointed must be a priest who had been apostolically ordained; and he would ask, how could it be supposed that any danger to the Church could arise from that, when they considered the advantages which the Sovereign had in the way of ascertaining the most fitting person for the office? Could it be said that the Sovereign, with all the advice and assistance which the Crown could command, would not be as likely to come to a correct decision as to the most fitting person to fill a vacant bishopric, as any other authority, and be quite as well capable of ascertaining his learning, morality, and orthodoxy? The question before the Queen's Bench, however, was of a different character. It was whether all the world was to be permitted to appear at Bow church, and be there at perfect liberty to bring forward all manner of objections against the bishop elect. If the election was duly conducted, the person so nominated was still to be consecrated; and if they referred to the form of consecration appointed by the Church, and established by Act of Parliament, their Lordships would see that all necessary and due precautions were provided; and hence it was that it was not necessary to hear all persons who might come forward with objections before confirmation and consecration. (The noble and learned Lord read parts of the "Office for the Consecration of Bishops.") There was a sufficient test established by that form of ordination, and if the bishop elect refused to agree to it in every particular, he would not be consecrated. Was not that form a perfect guard against the danger which the right rev. Prelate feared? It was, in his opinion, a perfect guard against any such danger—it was the form which had prevailed for 300 years, and now, after such a lapse of time, were they to be called upon to decide against the opinion and practice of the ancient Church? True, the petition presented by the right rev. Prelate only prayed that the penalties of prœmunire should be abolished; but did not the right rev. Prelate wish that the right of objection to the bishop should extend to all mankind? [The Bishop of EXETER: NO.] Did not the right rev. Prelate wish that 650 the law upon this point should be materially changed? If not, he (Lord Campbell) might concur with him as to the alteration of some forms; but he could not consent to such an alteration in the law as would in his opinion be fraught with danger, and which he, as a sincere friend of the Church of England, could not advocate.
The BISHOP of ST. DAVID'S
was unwilling to let it be supposed that all the statements of the right rev. Prelate received the unanimous and unqualified assent of every Member of that bench; and "he was desirous of availing himself of that opportunity of expressing his opinion upon some of the subjects which had been brought before them. There were many parts of the right rev. Prelate's observations in which he most heartily concurred; but he would confess that he did not feel the same alarm for the state of the Church in consequence of the recent decision in the Queen's Bench which was felt by the right rev. Prelate who introduced this subject to their Lordships; and he would say, that from some expressions which had been used, and from the tone of his address, he regarded it as something like an augury of an approaching storm, which, unless it was prevented by the wisdom of the Legislature, would be calculated to shake the Church, if not the State, to its foundations. Though he assented to much of what his right rev. Friend had said, he would repeat it, that he could not agree in the opinion that there was any necessity for alarm as to the position of the Church. He could not agree with him in considering the power of the Crown in this matter, even as it now stood, and even if it were left as it now was, to be so alarming, so dangerous, so humiliating, so monstrous, and so tyrannical as had been represented. If the prayer of the petition had been for no more than an alteration in the law, so far as it affected the appointment, election, confirmation, and consecration of a bishop, he should have heartily supported it. He conceived it to be a prayer which probably echoed the real wishes of the greater part of the Church and of the country; for he did believe that the time had arrived, and that circumstances had arisen, when it was absolutely necessary that some change or other should be made in the law; and he was delighted, on that account, to hear his noble and learned Friend (Lord Denman) express a similar opinion. When it should have been proved by experience that the present system was mischievous and trou- 651 blesome, then, undoubtedly, it would be high, time to make an alteration. Therefore, he agreed with both his right rev. Friends in desiring that there should be some change effected in the forms of the law. But some of his right rev. Friends went a great way further than this; and it would seem as if the inevitable tendency of what they proposed—though such might not be their intention—would be to make a transfer of the power which now rested in the Crown to some other. [The Bishop of EXETER: No, no!] He did not say that his right rev. Friend had stated to whom he proposed to transfer that power, but he did say that there was an argument which he had not yet heard answered, and which was advanced by his noble and learned Friend on the Woolsack (the Lord Chancellor) that the tendency and real aim of the prayer of the petition was, in some way or other, to accomplish that object—that it was to transfer the power now residing in the Crown, reserving the point as an open question to what other authority that power was to be transferred. Now, the utmost change that he (the Bishop of St. David's) was prepared to assent to, as at all desirable, was that an alteration should be made in the forms of the law, by which the power now substantially residing in the Crown should be really secured to it. At present, he was not prepared to go a single step further. He said also that the Legislature should not go one step further than that. With regard to the position of the Church upon this question, it did not appear to him that it was deserving of the epithets which his right rev. Friend had thought fit to apply to it; and he trusted that the feeling of alarm expressed by his right rev. Friend was not shared in by the great body of the community, whether lay or ecclesiastical. He trusted that there was not that deep discontent with the institutions of the Church which rendered it impossible to retain them without material and radical alterations. The right rev. Prelate, in alluding to the power of the Crown in the nomination of bishops, overlooked a modifying circumstance which had a most important bearing on the subject. His right rev. Friend had spoken as if the power hitherto exercised in substance by the Crown, and which might be, by an Act of the Legislature, still reserved and secured to it, was absolutely unlimited and unqualified. Now, it was not by any means a power of that description; and his right rev. Friend seemed to have forgotten that 652 most important feature in the case, that when the Crown exercised this power it was most strictly limited as to the subjects upon which it was exercised. It was not a power of nominating anybody who might be thought proper, but it was a power the exercise of which was limited to a certain class of persons who, in the eye of the law, he must be permitted to contend, were all equally well qualified to be the subjects of election. And he did conceive that one of the errors or oversights of his right rev. Friend was that of making too great a distinction between the superior and inferior orders in the Church. He appeared to have forgotten that, after all, there were no qualifications that could be required for the functions of a bishop which were not also equally required for a presbyter. With respect to any other qualifications, they were comparatively immaterial. True, the choice of the Crown might not always fall absolutely upon the best qualified person; but the law presumed that, until the case was proved to be otherwise, all presbyters—the only class from which a bishop could be selected—were equally qualified to fill the higher office: it was simply the transfer of a man from one sphere, which he had been found capable of filling, to another which he was presumed, and might fairly be presumed until the contrary was proved, to be competent to fill. He said, then, that in vesting the head of the State with such a power as this, the Church was not submitting to a state of things of which any of its members had reason to complain as a matter of grievance, or as ground for interference by the Legislature. But it was obvious also that this was not the only limitation to which the power of the Government was subjected. There was another which he considered of equal importance with the one he had mentioned, and as an equally unquestionable reality—he alluded to public opinion. There never was a period in which the power of the Crown in the appointment of bishops was more subject to the wholesome and legitimate influence of public opinion than the present. And he would venture to go one step further, and say that there never was a time in the history of this country when there was less probability that public opinion would have either a less wholesome or legitimate influence on the matter. Therefore it did appear to him a remarkable circumstance that this should be the particular epoch in the history of the Church and the State, when public opin- 653 ion was to be sounded upon the question, whether it was or was not advisable to make a radical and fundamental alteration in the state of the law upon the subject. If that was not the meaning of this petition, or if it was not the meaning of his right rev. Friend, then he confessed that he had probably been wasting their Lordships' time as will as his own by dwelling long on a point of most trivial importance; but he thought he could not so far have mistaken the language of either of his right rev. Friends as to suppose they considered themselves addressing the House on any other question; but whilst he said this—whilst he contended that the state of things was not quite so deplorable as had been represented—he wished, on the other hand, in the most distinct manner, to express his unqualified assent to every syllable that fell from his right rev. Friend, and which he was glad to hear had received the assent of another right rev. Prelate, as to the force and effect of the act of consecration. He was well aware, and their Lordships well knew, that there might be great and reasonable difference of opinion. It might be a question whether the act of election, and even of confirmation, was simply ministerial; but with regard to the question whether the act of consecration was not a personal act, which bound in the most solemn manner the conscience of every party who engaged in it, he could not have the slightest hesitation in saying that he most fully assented and agreed in every syllable that fell from his right rev. Friends on the subject. On the whole, it did appear to him, that if his right rev. Friend had expressed the meaning of the petitioners, they had not only been labouring under an exaggerated idea of the evil of the present state of the case, but likewise that their view of the remedy which they proposed for it was exceedingly imperfect and confused. He might admit that the present state of things was not the best possible state. The wide difference that separated the present form of proceeding from those which prevailed in the primitive ages of the Church, was a consequence not of any improvement, but of corruption in the Church; but that was not the question for the consideration of their Lordships or of the Legislature. Where an evil was pointed out and a remedy was to be proposed, we had to compare the present state of things, not with one that existed in times long past, but with any which existed in our own days, or which by any legislative 654 enactment we were able to bring about. He must say that, however bad the state of things in the Church of England might be in this respect, when we compared it with that which existed in other communities—and he would say in all other religious communities with which he was acquainted—he could not conceive the difference to be so disadvantageous, so mortifying to the members of the Church of England, as it must be in the estimation of his right rev. Friends. When he heard what was proposed as a substitute for the existing state of things, he should be better able to make up his mind whether it was desirable or otherwise. If the power which now resided in the Crown, or any portion of it, was to be transferred in any way either to an ecclesiastical conclave or to a popular assembly, he, for one, would rather retain our present institutions, with all their admitted anomalies and inconveniences, than he would accept either of what he considered to be infinitely greater evils, with the sense of imaginary danger. He had thought it his duty to state how far he was obliged to modify the assent which he could give to the proposition of his right rev. Friend. He could leave this question with perfect tranquillity in the hands of the Legislature, because, even if they should do nothing—even if the law should be allowed to remain in the state in which it now was—he did not think we should suffer any more intolerable grievance than we had been labouring under for many centuries. He entertained a hope that at some moment a wholesome change would be made in the form of the law; but whether the substance or not should be touched, was to him completely indifferent; or rather, judging from the light which had hitherto fallen on the question from the views that he had hitherto seen proposed, it would be better for the Legislature to permit the present state of things to continue substantially the same, than to open the door of innovation, of which no man could foresee the ultimate consequences, and which might threaten both Church and State.
The BISHOP of EXETER
After having already occupied so much of their Lordships' time, he would not unnecessarily trespass longer upon it. But some things had been said by the three noble and learned Lords who had addressed the House, and by his right rev. Friend who had just sat down, which demanded from him some brief reply.
655 The noble and learned Lord on the Woolsack had astonished him by the principal remark which he had thought fit to make on what he (the Bishop of Exeter) had said on the respective rights of the Crown and of the Church in the appointment of bishops.The right rev. Prelate (said the noble and learned Lord) is willing and anxious that the Crown should have the absolute right of naming the person to be made bishop; but then the Archbishop must have a right to judge of the fitness of the person so nominated by the Crown. My Lords (said the noble and learned Lord), of what worth is the right to nominate, if another party is to decide on the qualifications of the person nominated?He was, he repeated, astonished to hear such an argument, if argument it could be called, proceed from such a quarter. Why, the noble and learned Lord knew by experience, better than any man in that House, that the power of nominating to preferments was of great value, even though others had a right and duty to judge of the fitness of nominees, and to reject them if they were unfit. The noble and learned Lord exercised—he knew not how often in every year—the right of presenting to benefices in the gift of the Crown, subject nevertheless to the right of the bishop to judge of the qualifications of the persons presented by him. And this right of the bishop was not a mere nominal one; it was one repeatedly acted upon. He had himself, since he had been bishop, often considered judicially the qualifications of parties presented to benefices, and more than once in cases of parties presented by the Crown. This right he had exercised, and should continue to exercise. It was a right distinctly stated by the great statute "Articuli Cleri," which declared not only that it should be the law in future, but that it ever had been in times past—thus recognising it as the common law of England. The terms in which this was stated were remarkable; for they applied expressly to benefices in the gift of the Crown, and were so large as to apply in their reason to all benefices, whether bishoprics or others:—Of the ability of a person presented unto a benefice of the Church, the examination belong-eth to a spiritual judge; and so it hath been used heretofore, and shall be hereafter.He would next advert to something which had been said by a noble and learned Lord, who, he was sorry to see, had since left the House (Lord Denman). That noble and learned Lord had agreed with him 656 in wishing that the present course of proceeding in the election of bishops, with all its mockery and its profaneness, should be done away; and he had suggested that a course should be taken, which while it removed these scandals, would leave the power of the Crown such as the noble and learned Lord thought it ought to be—not only absolute in the appointment of bishops, but also without a right in any one to judge of the fitness of the Crown's appointment. This he had said would be effected by reviving the Statute of Edward VI., c. 2, which gave to the Crown the right of appointing bishops by letters patent. The noble and learned Lord had read to their Lordships the provisions of the statute to that effect; but he had omitted to read another part of the same statute, to which he must now call their Lordships' attention, and which he heartily wished the noble and learned Lord were present to hear. The Statute of Henry VIII., revived by the 1st Elizabeth, which was now the law of the land, required the Archbishop to consecrate the person elected, nominated, and presented to be Bishop under the penalties of prœmunire. But the Statute of Edward VI. which the noble and learned Lord said would give to the Crown the same power as was claimed for it under the Statute of Henry VIII., and which, therefore, he desired to see revived, enjoined not the consecration of the person nominated under any penalty—no, nor did it enjoin consecration at all—it simply said that the person to whom the bishopric was so collated "may be consecrated"—thus recognising the right of the Archbishop to refuse to consecrate if the person were unfit.
He must now make some remarks on what had been said by the noble and learned Lord near him (Lord Campbell). That noble and learned Lord had rested his argument on what he must say perfectly astonished him, considering the high stations which his noble and learned Friend had filled, and the still higher, which, if he lived, he would probably be called to fill. He had read to their Lordships the questions put to, and the answers made by, a bishop at his consecration—and these, he said, were all the security for his fitness which the law contemplated, or which was in itself expedient. But was it possible that the noble and learned Lord could see in those inquiries and their answers anything more than a mere engagement for the future? And what if the 657 party was utterly untrustworthy?—what if he had been already proved guilty of perjury, or was otherwise utterly disqualified? He really could not permit himself to abuse their Lordships' patience by dwelling longer on such a matter. He turned, therefore, to what had been said by his right rev. Friend behind him. His prime argument had been, that a bishop must be taken from the presbyters of the Church, and, therefore, in that one condition they had a sufficient security. What was it possible that his right rev. Friend should think less security necessary for the qualification of a person nominated to be bishop, than was necessary for the holding of any inferior benefice whatever? No presbyter presented to a rectory or vicarage was exempt from inquiry by the bishop into his qualifications for the charge. Was less care to be taken in admission to the highest office of all? Again—did his right rev. Friend affirm that none but presbyters might be made bishops? Why, at a not very remote period of the history of this very Church there was a notorious instance to the contrary. In James the First's time, when the episcopacy of Scotland was restored, certain Scotch ministers, who had not received episcopal ordination, were to be consecrated bishops. Bishop Andrewes objected that they were mere laymen. Archbishop Bancroft admitted this to be true, but reminded Andrewes that in the ancient Church there were several instances of laymen being advanced at once to the episcopate, mentioning Ambrose of Milan, who was a mere civil officer. Upon this Andrewes assented, and the consecration proceeded. Such is the account given by Heylin in his History of the Presbyterians. Besides, his right rev. Friend ought to bear in mind that the Statute of Henry VIII. did not confine the Crown to presbyters; it spoke generally of the persons nominated by the Crown to be bishops.
Before he sat down, he thought it necessary to answer the demand made on him by all the noble and learned Lords, that he should state what he thought a fit and proper course to secure the right of the Crown, and the right which he claimed for the Church. Thus challenged, he hesitated not to say, that, while he thought that the Crown ought to have an absolute right to nominate the future bishop, the Archbishop must have a right, on specific objections being stated, judicially to decide whether the person be cano- 658 nically qualified, or be canonically disqualified. If the Archbishop reject him, he would willingly see a right of appeal given to the party; and he would propose that the court of appeal should be the same as was constituted by a Bill now on their Lordships' table (Clergy Offences Bill) as a court of ultimate appeal in cases of heresy. He had the more confidence in proposing such a court, because it had been devised in a Select Committee on the Bill up stairs, at which all the noble and learned Lords had attended, and given their most valuable judgment. The result had been the unanimous agreement in constituting a court which should consist of Bishops and other divines, together with several Judges, both of the common law courts and also of the ecclesiastical courts. The right rev. Prelate thanked the House for the patience with which they had heard him.
§ Petition to lie on table.
§ House adjourned.