"right of the defendants to approve or reject. But the court afterwards wholly retracted that opinion, and refused the rule. What is said by the court afterwards (for Lord Kenyon is not reported as having said anything of himself distinctly from the rest of the court on this part of the case) is this: If the defendants were to be considered as trustees, in executing that trust they were to exercise a proper discretion, and to judge whether the party were or were not idoneous as a bishop may do' (what is said about what a bishop may do is merely by way of illustration of the argument, and is not the point in judgment, and is so far extra-judicial), 'in the case of a presentative benefice, Whether a and might absolutely reject the nominee on account of his clerk be minus sufficiens in being illiterate; which question of fitness could not be literatura, tried by a jury, and of which he was the sole judge' (It cannot be tried may however be tried by a jury in the case put, of the by a jury. clerk's dying, as the law-books say: as to the convenience of which trial I have observed already :)' but that as Mr. Moreton' (here the court having done with everything which respects the authority or duty of a bishop, come to the facts of the case before them), had been rejected on account of immorality and indecent conduct, that question might be properly determined by a jury of his country, to whom he had a right to appeal on the truth of the facts alleged against him. If however those facts were true, the defendants might return them upon the record.' All that the court therefore say is this: Supposing this to be a case in which a mandamus might go, the Marquis of Stafford and Mr. Giffard might return the fact; and if that return were not true an action might be brought for a false return. But those were not ecclesiastical persons; nor does that case, which merely respected the duty of trustees with reference to their cestui que trusts, apply to the present. I should have thought indeed that the words present and allow merely imported a duty in the trustees to present the person whose election they allowed or ought to allow as regular, and no more. At last the court thought it a case of a trust in which they had no right to interfere: that the mandamus was only a legal remedy, a remedy for the legal right where there was no other legal remedy; that if it were an equitable right, this court would not interfere; and if a legal one, there was a specific legal remedy by quare impedit.

66

Many other cases were mentioned, one of which was the King v. Blooer. That was the case of a curacy: the application was for a mandamus to a parishioner and an inhabitant of a chapelry, to restore a curate whom he had

Lord Ellenborough's

judgment in the case of Povah.

of refusing a presentee.

"forcibly turned and kept out of his chapel. No rights or duties of the ordinary, as such, were in question in that case; but Lord Mansfield appears to have said, 'If the bishop had refused without cause to license him, he might Bishop's power have had a mandamus to compel the ordinary to grant him a licence.' And indeed, as it is the party's only remedy, if the licence be refused without a cause; the bishop being to act there as in the case of an institution, if he causelessly refused the licence, the court would grant the mandamus: and if the bishop either could not or would not assign any cause, he might be compelled to admit him. But how is that argument to be extended to a case where the bishop assigns the only cause of rejection which the statute requires to exist, namely, his disapprobation of the person applying; and where he satisfies the court by the most explicit and solemn declaration, that this disapprobation is the result of deliberate inquiry and conscientious judgment?

"If we look at the facts in this case, it appears that the bishop, having certainly assigned at one time a ground which has been removed, I mean the want of priest's orders, did early upon the application to him intimate an objection to granting the licence required, on account of the maintenance of doctrines, which he said were contrary (as they certainly are) to the doctrines of the Church of England. But he did that in this case, which is very natural for liberal-minded persons to do; thinking that the applicant ought to be rejected, he wished to reject him upon the least obnoxious ground which could be assigned; and there was perhaps a degree of infirmity in this respect belonging to the nature of man, which disposes us to wish and endeavour to perform an act of duty in the least harsh and painful manner we can, as it respects the feelings of others. I must presume that the bishop very early, though the precise time is not stated, knew of Hall's letter: the letter was written in November; but when he knew it (for it went to his secretary) does not distinctly appear: the letter was written by Mr. James Hall to Dr. Hall, on the 24th November, 1809; and the latter says that shortly after the writing of that letter he conveyed it to the bishop's secretary. Now the bishop's secretary might produce it very soon afterwards to the bishop; and I think the fair inference from the whole is that before the first application for the licence, the bishop had been apprised of this ground of objection to the applicant; but he rested first of all upon the want of priest's orders. [One of my brothers suggests that the expression used is that the

66

secretary reminded the bishop, after Dr. Povah's application, of this letter.] The letter was sent at the time, not with any reference to this lectureship, for it was written on the 24th of November, 1809, and the lectureship did not become vacant till very shortly before the 20th of March, 1810, when I observe the election took place; the intelligence conveyed by it to the secretary came therefore in a more credited and less suspicious form, as not having been written with a view to any depending question, nor consequently with a view to obstruct Dr. Povah's access to this piece of preferment. The person who writes it states himself to have written to the curate of the parish, with a view to prevent the admission of that person into the pulpit of the parish, who he thought abused his opportunities there, by preaching to the congregation improper doctrines. This letter having been written, as I have stated, in November, 1809, four or five months before the election, it appears that it did not at the moment present itself to the mind of the bishop, to whom in all probability (for so I must presume from the expression used) the secretary had before communicated it; but the secretary afterwards reminded him of it: and then the question is whether it did not become imperatively his duty, upon being so reminded, to resist the licensing of the person referred to, if he were satisfied of the truth of the facts intimated to him. Until the last affidavits were made it did not appear what information the bishop had specifically upon this ground: he did not choose to disclose it at the time of the application for the licence; and I do not blame him for the delicacy of not disclosing the names of the person who had so informed him. The information now, however, and the names of those who gave it, are disclosed to the court on oath. We have the affidavits of Dr. Hall and of Mr. James Hall, who both swear to Dr. Povah's having preached those exceptionable doctrines: and there is in addition to this the affidavit of a person of the name of Macgregor to the same effect. Now if we were trying the validity and correctness of the bishop's conclusions, and going into all the facts of the case (which I disclaim our authority for doing), there was before the bishop the evidence of a person who gives his information at an unsuspicious period, when there was no question depending, and no interest to be served or prejudiced by it. There was the information of Mr. James Hall, a clergyman, and also that of Dr. Hall, the curate (who though of the same name, was no relation of his), and there is since the confirmatory evidence of Mr. Macgregor. I admit that the bishop had

Lord Ellenborough's judgment in the case of Porah.

of refusing a presentee.

"not Macgregor's evidence before him at the time, but he had that of the two first-named persons; and the question was whether he was to believe them, or several other persons present, who say that they did not hear any such Bishop's power things, and that they should have heard them if they had passed-thus negativing so far as they can the particular words and expressions imputed to Dr. Povah. The negative is not so strong on any occasion, and certainly not upon an occasion of this sort, as the affirmative: many things may pass in the course of a sermon which may not be afterwards distinctly recollected by persons present. I suppose hardly any person is so attentive an auditor of a sermon as to say with certainty, at some distance of time, whether this or that particular observation or expression may not possibly have formed a part of it. But laying the imperfections of memory out of the question, the class and situation in life in which some of these deponents are, one should think would not particularly prepare and dispose them to observe and to be struck with the application of certain expressions to the doctrines and tenets of the Church of England, as propounded in its articles. Might not then the bishop be in reasonable suspense, at least, to which description of relators he should give the fullest credit? He certainly might be, so far as we are enabled to judge upon the evidence before us: and if his belief at last preponderated in favour of the charge, are we warranted to condemn his judgment? The bishop has never renounced this objection: he has never said that he did not believe this charge. The production of Dr. Povah's notes was relied on yesterday, and it was said that the bishop had, on seeing them, renounced this ground of objection, and had received perfect satisfaction upon it. But what was that satisfaction? Dr. Povah produced to him his short-hand notes of some sermon that he had preached, in which no such objection appeared. But how was that to satisfy the bishop? It might have been a sermon upon a perfectly distinct subject from that of infant baptism; and the bishop afterwards stated in his letter to him, that the charge arose from a sermon preached a month or two before. The bishop did not renounce the objection, nor say that he was satisfied that Dr. Povah had not so preached he only said, in effect, this particular sermon is not the one to which the statement in question is imputed. But we are trying this question now with evidence before us, by which the statement on the part of Dr. Povah is attempted to be confirmed by very extraordinary matter. It is said that he not only did not preach against infant

"baptism, but he upheld the necessity and importance of it; and so much so as to have (if I may use the expression) electrified the consciences of several of his congregation; one man of the name of Hardy, another of the name of Pollard, and another of the name of Hart; so as to have induced them to set about rectifying that error in their conduct which had taken place in not baptizing their children sooner and that they in consequence immediately, or as soon as they conveniently could, set about the baptizing of their children. Now the investigation of the facts which has since taken place is very unfortunate for the credit of these assertions. Hardy, we are to suppose, to have been resident in this parish; for we are not told where else to look for the baptism of his child; but it turns out that he had no child baptized in this parish in the year 1809; these sermons being stated to have been preached in the autumn of 1809. The search has been prosecuted through the year 1808 (why through that year I do not understand), and through 1809 and 1810; and he does not appear to have had any child baptized in either of those years. Pollard, who is supposed, by hearing this sermon preached in the autumn of 1809, to have been so much struck with it, that he had felt a painful sense of the neglect of this duty, lies by, I think, till the 31st of March, 1811: that is, having heard this sermon, which communicated the impulse to his conscience in the autumn of 1809, he does not baptize his child till the 31st of March, 1811, and then he baptizes two together; the first of these children. having been born two years and about ten days before: so long was the period which intervened before his strongly convinced conscience impelled him to perform this necessary rite. Hart baptized his children upon the 5th of May, 1811, which children had been born, the first of them on the 1st of August, 1809, and the second on the 30th of March, 1811: he had lain by therefore one year and nine months after the birth of the first child, being the whole portion of time which elapsed between August, 1809, and the 5th day of May, 1811, when he brought them to be baptized. Now I put it to the plain common sense of any man, if this cause had come before a court sitting at Nisi Prius, how would such evidence have been received, and what regard would it have been entitled to? Can any one say that this lingering performance of a rite, of the importance of which the parties are supposed to have been so powerfully convinced, took place under an impulse which operated upon the conscience of his hearers

P. VOL. I.

FF