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established; but the Lieu tenant-Go veruor having ascertained that these preliminaries have been complied with, his office is merely ministerial, and he has no power to refuse induction. The Bishop's functions are confined to licensing the clerk, who is presented (of course after due examination), if such clerk has not already obtained a license from the Bishop of London.
The Lieutenant-Governor has no rights or duties in respect of the appointment of missionaries of the Society for the Propagation of the Gospel, but such missionaries cannot officiate without the license of the Bishop; and if they should do so, or fail to declare their assent to the Book of Common Prayer, or to subscribe the Articles and Canons of the Church, we think that, according to the spirit of the Colonial Act, they may be suspended and silenced by the Lieutenant-Governor and the Council.
J. D. Harding.
The Right Hon. Sir J. Pakington, Bart., Fred. Thesiger.
&c &c. &c. Fitzroy Kelly.
NOTES TO CHAPTER II.
The foregoing Opinions give the opportunity of discussing the question of the status of the Church of England in the colonies, and how far the ecclesiastical law of England is applicable to that Church there. Of late years the question has been fully considered, and the law settled by the Judicial Committee of the Privy Council. First, in the case of Long v. Bishop of Capetown, 1 Moore, P. C. (N.S.) 411, where Mr. Long, the appellant, claiming to be the incumbent of a parish in the colony of the Cape of Good Hope, refused to obey certain orders which the Bishop of the diocese, in the exercise of his episcopal authority, thought fit to issue, and for such disobedience the Bishop issued against Mr. Long sentences, first of suspension, and afterwards of deprivation. The validity of these sentences was disputed, first in the colonial court, and afterwards on appeal here. The first question which the Judicial Committee considered was the authority which the Bishop possessed under and by virtue of his letters patent at the time when the sentences were pronounced. And they held that the letters patent under which the Bishop acted, having been issued after a constitutional government had been established in the Cape of Good Hope, were ineffectual to create any jurisdiction, ecclesiastical or civil, .within the colony. The next point was, whether the defect of coercive jurisdic
tion under the letters patent had been supplied by the voluntary submission of Mr. Long? The Judicial Committee held that Mr. Long, by taking the oath of canonical obedience to the Bishop, and accepting from him a license to officiate and have the care of souls within a parish in the colony, and by accepting the appointment to the living under a deed which expressly contemplates, as one means of avoidance, the removal of the incumbent for any lawful cause, did voluntarily submit himself to the authority of the Bishop to such an extent as to enable the Bishop to deprive him of his benefice for any lawful cause. But this was on the principle of contract, the Court holding that for the purpose of the contract between the plaintiff and defendant, it was to teke them as having contracted that the laws of the Church of England should, though only so far as applicable in the colony, govern both. The next question was, whether Mr. Long had been guilty of any offences which, by the laws of the Church of England, warranted the sentences against him? This depended mainly on the point whether Mr. Long was justified in refusing to take the steps which the Bishop required him to take in order to procure the election of a delegate for the parish to a synod convened by the Bishop. The Judicial Committee held that the Bishop had no power of convening a synod without the consent of either the Crown or the colonial legislature, for the purpose of making laws binding upon members of the Church of England; that the acts which they assumed to pass were illegal; and that Mr. Long was justified in refusing to assist in calling into existence a body which he was not bound by any law or duty to acknowledge. The oath of canonical obedience only means that the clergyman will obey all such commands as the Bishop by law is authorized to impose. The Court, therefore, were of opinion that the order of suspension and subsequent sentence of deprivation were not justified, and were invalid. In giving judgment, the Court said: "The Church of England in places where there is no Church established by law is in the same situation with any other religious body—in no better, but in no worse position; and the members may adopt, as the members of any other communion may adopt, rules for enforcing discipline within their body, which will be binding on those who expressly, or by implication, have assented to them."
Another point considered by the Judicial Committee in this case was, whether, supposing the sentences of the Bishop to bo erroneous, Mr. Long had any remedy except by appeal to the Archbishop of Canterbury under the letters patent; and they held that even if Mr. Long might have appealed to the Archbishop — a question which they thought it unnecessary and inexpedient to discuss, as the suit in respect of which the appeal was brought respected a temporal right, in which the appellant alleged that he had been injured—he was not bound to appeal to the Archbishop, but was at liberty to resort to the Supreme Court of the colony.
This case was followed by Be The Lord Bishop of Natal, 3 Moore, P. C. (N.S.) 115, which was a petition presented to Her Majesty in Council by Dr. Colenso, Bishop of Natal, complaining of the illegality of certain proceedings taken against him, and alleging the nullity of a sentence of deposition for heresy pronounced against him by the Bishop of Capetown, as metropolitan of that diocese. The petition was referred to the Judicial Committee, and several of the questions which had been considered in the case of Long v. Tfie Bishop of Capetown came again before the Court. They held that, although in a Crown colony, properly so called, or in cases where the letters patent constituting a bishopric and appointing a bishop in a colony was made in pursuance of an Act of Parliament, a bishopric may be constituted and ecclesiastical jurisdiction conferred by the sole authority of the Crown, yet that the letters patent of the Crown will not have any such effect or operation in a colony or settlement which is possessed of an independent legislature. They held, therefore, that in the case before them the Crown had no power to confer any jurisdiction, or exercise legal authority, upon the Metropolitan of Capetown over the suffragan bishops, or over any other person ; and they said that in the case of a settled colony the ecclesiastical law of England cannot be treated as part of the law which the^ settlers carried with them from the mothercuuntry (1). They said: "After a colony or settlement has received legislative institutions, the Crown (subject to the special provisions of any Act of Parliament) stands in the same relation to that colony or settlement as it does to the United Kingdom. It may be true that the Crown, as legal head of the Church, has a right to command the consecration of a bishop, but it has no power to assign to him any diocese, or give him any sphere of action within the United Kingdom. The United Church of England and Ireland is not a part of the constitution in any colonial settlement, nor can its authorities, nor those who bear office in it, claim to be recognized by the law of the colony otherwise than as members of a voluntary association." As to the question whether, supposing that the Bishop of Capetown had no jurisdiction by law, he obtained it by contract or submission on the part of the Bishop of Natal by virtue of his oath of canonical obedience, they held that it was not legally competent to the Bishop of Natal to give, or to the Bishop of Capetown to accept or exercise, any such jurisdiction.
The Bishop of Natal afterwards sued the Trustees of the Colonial Bishoprics' Fund for arrears of his salary, which they, in consequence of the decision in the last case, had withheld from him. This case, Bishop of Natal v. Gladstone, L 11. 3 Eq. 1, came before Lord Piomilly, M.R., in 1866, and he pronounced a decree in favour of the plaintiff. His Lordship held that the law, as declared by the Judi
(0 In R. v. Brampton, 10 East, 288, Lord Ellenborough, C.J., said: "In the absence of any evidence to the contrary, I may suppose that the law of England, ecclesiastical and civil, was recognized by subjects of England in a place occupied by the King's troops, who would impliedly carry that law with them."—See ante, p. 18.
cial Committee, left all the episcopal functions to the Bishop exactly as by the law of the Church of England they belonged to his office of Bishop, and that he could perform all the acts which belong to a Bishop within the diocese of Natal which he could do if ho were the Bishop of an English diocese—" with this exception, that ho cannot enforce the execution of these orders without having recourse to the civil tribunals for that purpose." With respect to the passage in the judgment of the Judicial Committee in Long v. Bishop of Capetown, 1 Moore, P. C. (N.S.) 461, already quoted, as to the status of the Church of England in the colonies, his Lordship said: "These expressions have created some alarm, which has, as it appears to me, arisen from an imperfect apprehension of what is meant by them. They do not mean, as some persons seem to have supposed, that because the members of such a Church constituted a voluntary association, they may adopt any doctrines and ordinances they please, and still belong to the Church of England. All that really is meant by these words is, that where there is no State religion established by the Legislature in any colony, and in such a colony is found a number of persons who are members of the Church of England, and who establish a Church there with the doctrines, rights, and ordinances of the Church of England, it is a part of the Church of England, and the members of it are, by implied agreement, bound by all its laws. In other words, the association is bound by the doctrines, rights, rules, and ordinances of the Church of England, except so far as any statutes may exist which (though relating to this subject) are confined in their operation to the limits of the United Kingdom of England and Ireland."
The Master of the Rolls added : " The members of the Church in South Africa may create an ecclesiastical tribunal to try ecclesiastical matters between themselves, and may agree that the decisions of such a tribunal shall be final whatever may be their nature or effect. Upon this being proved the civil tribunal would enforce such decisions against all the persons who had agreed to be members of such an association— that is, against all the persons who had agreed to bo bound by these decisions, and it would do so without inquiring into the propriety of such decisions. But such an association would be distinct from, and form no part of, the Church of England, whether it did or did not call itself in union and full communion with the Church of England. It would strictly and properly be an Episcopal Church, not of, but in South Africa, as it is the Episcopal Church in Scotland, not of Scotland." See the observations of the Judicial Committee in Ex parte Jenkins, L. R. 2 P. C. 270: "It seems to have been supposed that the cases of Long v. Bishop of Capetown, and In re The Lord Bishop of Natal, are authorities for the proposition that the Bishop of Newfoundland has no legal status and cannot lawfully exercise any episcopal function within the Bermudas. The first case certainly does not go the length of that proposition, for it decided only that the Crown cannot confer coercive authority on a Bishop in a colony possessing a constitutional form of government without the consent of the Legislature. The Judicial Committee, in deciding the case of Tlie Bishop of Natal v. Gladstone, has certainly used expressions which would restrain the power of the Crown in the creation of bishops within even narrower limits. It has been argued that the Master of the Rolls, in his judgment in The Bishop of Natal v. Gladstone, has greatly qualified the effect of the former judgment of the Privy Council. Their Lordships think that in the present case they are not called upon to express an opinion whether these two decisions can be reconciled; for they are clearly of opinion that the question whether the Bishop of Newfoundland has any lawful status, or can exercise any episcopal function, and particularly that of institution, in the Bermudas, has been set at rest conclusively by the repeated recognition of his status and functions by the colonial legislature."
In The Bishop of Natal v. Gladstone, the Master of the Rolls held that Dr. Colenso was Bishop of Natal in every sense of the word, and would remain so until he died or resigned, or until the letters patent appointing him were revoked, or until he were in some manner lawfully deprived of his see. But, in order to guard against a misapprehension which might arise from these words as if it were his opinion that the plaintiff could not by any means be removed from being Bishop of Natal, his Lordship added: "Such is not my opinion. I wish it to be distinctly understood that I do not mean to assert that as soon as the plaintiff's nomination by the Crown, and his appointment by letters patent, had been consummated by his consecration by the Archbishop, whatever might be his conduct or opinions, he must for ever remain Bishop of Natal and enjoy the endowments attached to that office, even though the letters patent appointing him had never been revoked. On the contrary, I entertain no doubt that if he had not performed his part in the contract entered into by him, that if he had failed to comply with 'the covenants of his trust,' he could not compel payment of his stipend. The contract he has entered into is involved in the words 'Bishop of the Church of England as by law established.' The duties, the teaching, the superintendence, the pastoral care, the watching of his flock, which appertains to a Bishop, he undertook and was bound to perform; and if, by his own wilful default, this has become impossible, I do not mean to lay down that he could maintain a suit in this Court for the payment of his salary as Bishop of Natal."
The following Opinion was afterwards given by the Solicitor General (Sir John Coleridge), Sir Roundell Palmer, and Dr. Deane, in April, 1869:—
Query.—" Assuming that the present Bishop of Natal has been guilty of an ecclesiastical offence, what steps can be taken to bring him to trial, and before what tribunal?"
Opinion.—" Any tribunal competent to decide whether the doctrinal opinions advocated by Dr. Colenso, the present Bishop of Natal, are in accordance with the doctrines of the Church of England or not, must be sought for in South Africa or in England.