See also Archdeacon Manning’s recent letter to the Bishop of Chichester, where the same subject is again treated in the most convincing manner, pp. 35, 37.
C. p. 34.
It will immediately occur to the reader that this particular point as to the burial service, as well as many others here touched upon, have been already handled in the most masterly way by the Bishop of Exeter, in his letter to the Primate. I suppose I hardly need say I have entertained no so absurd notion as that I could surreptitiously plagiarize from such a source; but I may perhaps be allowed to explain, that I should not have ventured upon the same ground at all, had it not been for a further object in my remarks than that which appears to have been most prominently before his Lordship’s mind in writing. I have been concerned in my particular argument, not so much to clear our services from being supposed to require the “charitable construction” asserted by the Privy Council, as to draw out in somewhat greater detail the points which show the marvellous inapprehensiveness (as it appears to me) displayed by the Court on the whole subject-matter with which they had to deal.
D. p. 35.
“The question must be decided,” says the Court, (Judgment, p. 9,) “by the articles and liturgy, and we must apply to the construction of those books the same rules which have long been established, and are by law applicable to the construction of all written instruments. We must by no means intentionally swerve from the old established rules of construction, or depart from the principles which have received the sanction and approbation of the most learned persons in time past, as being on the whole, the best calculated to determine the true meaning of the documents to be examined.” It may be worth while, in reference to their treatment, especially of the office for private baptism, to append here a few words of the rule of construction as laid down by Blackstone. “The construction shall be upon the entire deed, and not merely upon disjointed parts of it, so that every part, if possible, shall take effect, and no word but what may operate in one shape or another.” (Comm. ii. 379.) It is manifest there was no impossibility, nay, no difficulty, in such a construction of the office for private baptism as should allow “every part” to “take effect;” such also that there might be “no word but what should operate,” so far as merely making that service agree with the other; the only difficulty was to give every word its effect, if both were to lead to a particular conclusion.
E. p. 46.
On a matter of so grave a character as that referred to in this place it seems necessary to give at rather more length that part of Lord Denman’s judgment (in the case of Dr. Hampden in the Queen’s Bench) delivered on the 1st of February, 1848, which states his reasons for refusing to let the writ issue, when two of the judges of his court were in favour of doing so.
“Now comes the question which presses most on my mind. Having stated my reasons for the opinion which I deliberately form, and conscientiously entertain that this has never been at any time the law in the Church of England, I must be of opinion that the court ought to refuse the writ of mandamus; but upon that opinion I have had the greatest difficulty, and have felt the greatest possible hesitation in acting, because I feel the authority of my two learned brothers, and the ungracious appearance of refusing the opportunity of inquiry. In any ordinary set of circumstances, in the case of an inclosure, of a railway, or matter of property, we should have no question what ever that the doubt of any one on the bench would have made further inquiry desirable. I should have instantly agreed. A writ of error would lie in that case to correct any opinion that might be shown on more discussion to be erroneous. But every judge must act on his own conviction. I own that my opinion is so entirely settled, and, I must say, so entirely unchanged by what I have heard of the argument to-day, that feeling the utmost disposition to do all that can be done to show my respect for my learned brothers, I do not think that I can consent to say for my part that this writ ought to go. I think it ought not. * * * * * I am satisfied that the only effect would be to keep alive the dreadful agitation and frightful state of religious, or rather, let me say, theological animosity, which it is impossible not to observe in this country. There would be a delay of at least two years; probably four more days would be consumed in argument, and we cannot tell how much more when it would come into the court of error. The bishopric all that time would be vacant, perhaps other vacancies might occur, and no doubt the example here set would be followed; and in every case I should expect, in the excited state of men’s minds, that the archbishop would be called upon to summon all mankind, to hear whether they had anything to say against the bishop elect, and to open a court, that would probably never be closed.”
* * * * *
“Now, under all these considerations, feeling the utmost respect for my learned brethren, and the greatest regret that we do not take the same view, I must own that I feel some deference is due also to the high person who is named as the defendant in this rule. Some deference is due to those who certify the fitness of Bishop Hampden for the office to which he is elected. Still more deference is due to the peace of the Church, and to the tranquillity of the State. It seems to me that we should be putting every thing to hazard and leading to consequences which it is impossible to foresee, if we, who are firmly convinced that there is no such law as that upon which these parties seek to act, encouraged the smallest doubt as to its existence. Reserving my opinion on that point till I had heard all the observations of my learned brothers, and keeping my mind open to the last, and free to say that this is a question which ought to be discussed, I must fairly say, with all respect for my brother Coleridge’s admirable argument, that it has confirmed me in the opinion of the danger of exposing the Act of Parliament, and the most simple construction of the plainest language, and the most inveterate and universal opinion on its effect, to the speculations of those who will bring their forgotten books down, and wipe off the cobwebs from decretals and canons, before they can find one argument for disturbing the settled practice of three hundred years.
“In my opinion this rule ought to be discharged.”—Rule discharged. Lord Denman’s Judgment in the Hampden case. Report, by R. Jebb, Esq. pp. 495, 496.