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MY LORD,

IN my letter, dated a few months since, I had the honour to inform your Lordship of my petition, presented to the House of Commons in the last session of parliament, having been received by that honourable house ;--and in which letter I also stated myself to entertain a well-grounded belief, that the attention of the house would, in the present session, be again called to the grievance set forth in that petition.

Mortified, as under the disappointment of this expectation, I am; and apprehensive, likewise, of a severe addition to the grief I thence experience, should I be suspected of having too hastily entertained, and too rashly avowed such an hope,-to your Lordship's indulgence it is that I betake myself, while again asserting the reality of that expectation, I endeavour to justify its validity, by explaining the cause of its defeat and disappointment.

To this end I must beg leave to direct your Lordship's attention to a report, which I ventured to submit for the honour of your Lordship's perusal, of the motion made by my counsel in the Court of King's Bench.

Your Lordship, on perusing that report, cannot have failed to observe, that no other cause or motive was assigned for the “ hardship and injustice" I am sustaining, than the expediency, the necessity even of gratifying “ the wishes" of a few (but powerful) individuals :--as also that the means, in the absence of all legal ones, adopted for that purpose, avoiding the irksomentess of a public's scrutinizing gaze, had sought, behind the church's protecting veil, and had found-an asylum.

The same efficient remedy against the wearisomeness of grievance and remonstrance, which had been so advantageously resorted to in the courts of the church, was attempted also in the house of commons ; great interest and much solicitation having been exerted* for inducing the honourable member, charged with my petition, to relinquish to the trampling of power a cause, already the victim of far other attributes. Although well fitting the means whereby that sacrifice had been obtained, the effort was yet, in this instance, not crowned with the same success :-my petition was presented and read.

Still, my Lord, notwithstanding this partial advantage gained by my cause, in overcoming the obstacles placed in the way of its return to the field, still, I say, it is held an hopeless and vain attempt to make head in the house of commons, against the vast resources, in readiness to be called out, in support of an interest,

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* I do not mean to charge this as a directly unconstitutional or unlawful attempt to bar the right of an individual to petition that house. It might possibly be nothing more than a fair parliamentary maneuvre. I state the fact merely as a proof of the trembling anxiety, with which this case has so sensitively, and so uniformly shrunk from all open investigation.

powerful in itself, and actuated by a necessity loudly calling for further silence, as the presage and the ensurance of further triumph.

Having thus pointed out the rock whereon my hopes have suffered shipwreck, I shall remind your Lordship of the opinion formerly given by you. Your Lordship having been pleased to say, “ It is in vain, Doctor H. it is in vain, to contend against the power and influence of Sir William Scott."

Vain, however, and fruitless as the contest las, indeed, proved, and justly as the fulfilment of your Lordship's prediction has proved it to have been formed, I do still, my Lord, conceive that, but for the above-mentioned documents, the means whereby its accomplishment has been brought to pass would have eluded your Lordship's observation; the power pronounced so irresistible having been estimated rather from a view of its constant and uniform effects, than from any direct insight into its nature and its sources.

I shall, therefore, for the purpose of throwing a ray of light on this mysterious subject, beg leave to intrude a few moments on your Lordship's patience, while I offer, thereon, one or two brief remarks ;-observing, as I shall do,

First, on the sources of that power; on its origin and growth; and on the means whereby it has acquired that vastness, so forcibly felt and described by your Lordship.

Secondly, on its principle of action; the impulsive spring of its operation; the material and final causes of the activity it displays—an activity equalled only by its amplitude.

Touching the former of these points, I would, in the first place, observe, that Sir William Scott is, as your Lordship must be aware, a member of his Majesty's privy council. By which deliberative and executive body are framed and issued those orders of council, under which the judicial processes of the high court of admiralty are brought to bear upon the fleets and vessels of foreign nations, enemies and neutrals: “ the judges of the high court of admiralty,* and of the vice-admiralty courts being commanded by these orders to take, for their execution, the necessary measures, as to them may respectively appertain.”

Sir William Scott having discharged his duty as a privy counsellor, in assisting at the deliberations held on the propriety of the orders, so framed and so issued, as also on their scope and extent, is, in the next place, as judge of the high court of admiralty, charged with the office of executing those orders he has himself thus assisted in framing and issuing. The discharge of which duty, in obedience to his own order, proves lucrative to him in his latter capacity of a judge,t in proportion to the scope, to the sweep taken in their construction, in his former capacity of a privy counsellor.

On the constitutional legality or propriety of such a combination in the same individual of the two functions of privy counsellor and judicial magistrate, I shall not, my Lord, venture any opinion of my own; but shall cite that of a celebrated modern writer. Archdeacon Paley, in his chapter on the administration of justice, lays it down, that “the first maxim of a free state is, that the laws be made by one set of men, and administered by another; in other words, that the legislative and judicial characters be kept separate. Where these offices

* See the late orders of Council.

+ The judge of the admiralty, in addition to his fixed salary paid by government, receives also an emolument from every sentence of condemnation passed in that court by his judgment; he having first, for that purpose, issued his order to our admirals and captains, “ Go ye out, and bring in such and such ships ;” and to hiinselt, Go thou into the high court of admiralty, and try them.”

By thus answering his own signals, by executing his own commands, and by the trying and condemning of ships captured by his own order, the minister of the church and truly spiritual character at present presiding in this court of admiralty, is said to have employed, for some years past, his hours of leisure tion spiritual and heavenly concerns, not unprofitably. Insomuch, that “this laggard,” this iron age, as moralists and poets perversely style it, Las proved one of “ happy and of golden days,"-a prize, indeed, in the lottery of life has this prize-court proved to him, and a source of riches ampler far, I ween, than the tutor of university-college e'er espied in the treasury-chamber of any château en Espagne, built in a summer's holidays, however, in other points, both finished and furnished this might be with the choicest materials, with the costliest productions of classic reverie. Were it possible by an effort to acquire composure of muscles or command of pen, while contemplating the serio-comico-farcical melo-drame so successfully acted by these spiritual performers, my brother doctors in jure canonico-civili – if, I say, 'twere possible, catching gravity by the forelock, to be an instant sober, I should then say —, of all men living, Sir William Scott is the last who oright to have started or have cherished an opposition, in this canonical pursuit, to one as a civilian and a canonist titled equally with himself, however interior he may be in the encioumenis, either of genitis, or of juck.

as an

are united in the same person or assembly, particular laws are made for particular cases, springing oftentimes · from partial motives, and directed to private ends." The same writer then adds,

“ The next security for the impartial administration of justice, especially in decisions where government is a party, is the independency of the judges."

To which latter ground of security I am inclined to believe, had the archdeacon's view been directed to these courts of civil and canon law, where, in the necessary absence of a jury, so much devolves upon the advocate, he would have added a necessity for the like independence of this " high and important public officer" also; the duty of whose office it is, to defend the interests of the suitors, whether natives or aliens, coming into these courts for justice, to explain their cause, to uphold their rights according to the law of nations, and to obtain for them a sentence conformable thereto.

But, my Lord, returning to my subject, and remarking on that power, necessarily (as was well observed by your Lordship) so great, resulting as it does from such a combination of public functions; the whole of this by no means rests, nor is it centered here. No;-Sir William Scott is also charged with a third and distinct capacity, to wit, a spiritual one. Wherein,

“ officer and minister of the church" it forms a part of his duty to make out the commissions, in pursuance of which the advocates are admitted as such into that court, in which he presides as judge, and to seal them with his ecclesiastical seal.

Neither is even this all. --Sir William Scott, as vicar-general of the Archbishop of Canterbury, is called upon to advise bis Grace, as to the fitness or unfitness of the candidate, and on the validity of his qualification (I beg pardon, my Lord, the validity of this has been already defined and prescribed by law,) on the fitness, I say, or unfitness of the candidate for admission as an advocate in the courts of the church-and which admission is a necessary preliminary to admission to the same office in the high court of admiralty ;-this latter being effected under no other commission, and by no other authority than that of this ecclesiastical commission, executed in Sir William Scott's office, and sealed with his official seal.

To complete the absoluteness of the controul, thus 'exercised by Sir William Scott, over the admission of the advocates in the court of admiralty, I must yet observe to your Lordship that, if any objection be made to the candidate, whether founded or otherwise, and should he be in consequence thereof rejected, there exists, in the whole frame of British jurisprudence, no appeal, no redress, no bearing. Whereby, as your Lordship must perceive the judge of the admiralty possesses over the admission of the counsel in the court where he presides as judge, a discretionary controu!, not exercised either by the Lord High Chancellor, the Lord Chief Justice, or by any of the judges in their respective courts.

I shall, in the second place, endeavour briefly to develope to your Lordship the principle whereon this so forcible an accumulation of power maintains its activity; the main, though secret spring, which regulates its movements ; with the aim and object, whereto these are principally directed.

To effect which purpose, I must solicit your Lordship's attention to the two leading features in the present frame and constitution of church government, as noticed by me in the outline I bave sketched of its history.* The two points I allude to are, I. The admission of the laity into ecclesiastical offices and dignities.-II. The acquisition made to its jurisdiction, by the church, of a very extensive and lucrative branch, antiently appertaining to the secular tribunals.

Concerning the former of these heads, viz. the introduction of the laity to the situations they now hold in the church, as its “officers and ministers ;” with their admission to a share in the administration of its government, in the performance of spiritual functions, and the exercise of ecclesiastical jurisdiction-touching this matter, I am to observe, that such permission to the laity to invest themselves with the spiritual character, and therein to exercise spiritual functions, being in direct opposition to every avowed principle of spiritual power and of ecclesiastical discipline, bad by the laws of the churchbeen most scrupulously guarded against : the most severe edicts having been passed for that purpose, forbidding them, under the heaviest penalties, to "intrude themselves" into even the lowest offices in the church's judicial courts.

The state having in the reign of Henry VIII. (no doubt for wise and just reasons) seen fit, conditionally, to admit the laity to the exercise of ecclesiastical and sub-episcopal duties, in common with the clergy, it was, therefore, by Parliament enacted, that in future Laymen should be permitted to hold ecclesiastical offices, and to exercise these spiritual functions, provided they were doctors of civil law lawfully create.

* See Address to Visitors. Part II.

Now, my Lord, from hence it has followed, either as a necessary consequence of their introduction into the government of the church; or for the rendering their participation with the clergy in spiritual privileges less abhorrent from the genius and temper of these :—it has, I say, followed, that, with the spiritual office the laity do also assume the spiritual character ; they being, in virtue of their ecclesiastical office and commission, spiritualized by the seal of the church, and becoming thereby “ spiritual persons,” equally as the clergy do become such, by the imposition of hands, and by the gift of the Holy Ghost. Which spiritualization of the laity by the seal of the church on their admission; as its “ officers and ministers,” has moreover been sanctioned and confirmed by the common law ; the court of King's Bench having declared them to be “spiritual persons,” and their office to be “ no temporal office."*

Proceeding to shew the effects of this combination of lay and spiritual essence on the theory and practice of church government: and, as the chief of these, the consequent merging of what formerly constituted the whole, in a part, which formerly did not belong to that government; the total change, f hence arising, in the relation subsisting between lay and clerical persons, now become that of mutual interests ;—the change also in the texture of spiritual character, necessarily wrought hereby ;-—and the introduction of a new impulse, if not therewith of a new direction, given to spiritual councils, resolves, and decrees: I am thus led to the second point in my outline of the church's jurisdiction, which the analysis I am at present attempting calls on me to notice to your Lordship.

“ The government of the church,” (Lord Bacont observes) “consists of the patrimony, franchises, offices, jurisdictions, and the laws of it, directing the whole : all which have two considerations; the one in themselves, the other how they stand compatible and agreeable to the civil state.”

The branch of its jurisdiction, of which, as influencing in certain cases, the whole frame of church government, its patrimony, franchises, offices, and laws, I am now to speak, consists in the management and decision of matrimonial and testamentary causes. The cognizance of which causes was antiently, as I have already observed, with the civil courts. From whence the withdrawing them, and the transferring them to the spiritual tribunals, has ever been considered, as a great usurpation on the common law of England.

“And in this light it was regarded” (says Bishop Warburton,*) "by that great and wise legislature in the time of Edward VI. when it took from the ecclesiastical courts MATRIMONIAL and TESTAMENTARY causes, and restored them to the civil. How the usurpation of so extensive a jurisdiction first began we shall not be at a loss to discover, when we reflect upon what has been before said concerning the methods the state made use of by the aid of allied religion, to add a sanction to its civil institutes. Thus marriage, though a civil compact, yet being of the highest importance to society, to give it the greater veneration, and reverence, was made a religious one, by being confined to the administration of the clergy. And so far all was well. But from thence the clergy took occasion, by degrees, to draw into the church's jurisdiction every thing that arose out of that conjunction between the sexes, the rites of which they administered. And from this example may be seen, what bad work ecclesiastical courts cut out, when they usurp the determination of civil CAUSES. For here, notwithstanding the voice of nature and of God cried out for a divorce of this conjunction in certain cases ; yet on the idle and superstitious pretence that that rite was a sacrament, they boldly ventured to contradict both, and to pronounce the contract indissoluble.”

In like manner did the clergy take occasion to draw into the same jurisdiction of the church every thing that arose out of the separation also of a man from the world and from his worldly possessions, at the hour of his dissolution. Whether the pretence for this was an “idle and superstitious” one, I do not presume even to consider. The pretence however was, its being held-pro salute animae, for the good of the souls of all such as, having worldly property also to dispose of, were anxious for the welfare of the former of these, that the church should be constituted the depositary and guardian of the latter.

The learned writer and strenuous defender of the church's legitimate rights, from whom I have just cited, then goes on to prove that “all forms of process and judiciary proceeding in ecclesiastical courts should be borrowed from the civil courts of that state, to which the church is united ; and that they should go invariably by the rules and processes of the municipal law of that state."

* By Lord Chief Justice Holt, in the reign of King William and Queen Mary.
† Essay on the matter of divinity.
Luici oppidò semper infensi sunt clericis.

Sir Thomas Ridley, a canonist, and a layman.
Allance between the Church and state.

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