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"The decision of the Judicial Committee in The Bishop of NataTs Case, 3 Moore, F. C. (N.S.) 115, is an authority for saying that the Bishop of Capetown has no jurisdiction over Dr. Colenso.
"Taking the cases of The Bishop of Natal, and Long v. The Bishop of Capetown, 1 Moore, P. C. (N.S.) 411, together, they appear to determine that there is no jurisdiction ecclesiastical in the metropolitan diocese (so to call it) of Capetown which can reach the Bishop of Natal.
"The colonial decision in The Bishop of Natal v. Green, sent with the Case, throws some doubt upon the condition of the colony of Natal, as assumed by the Privy Council in Tlie Bishop of NataTs Case; and it may be that the letters patent granted to Dr. Colenso were valid. But if that should be so we cannot see that any tribunal, civil, criminal, or ecclesiastical, exists in Natal which can determine whether the doctrinal opinions of Dr. Colenso are erroneous or not, and can enforce its decision.
"The authority of the judgment of the Master of the Bolls in The Bislwp of Natal v. Gladstone, L. R. 3 Eq. p. 1, must not be carried beyond the point determined—viz., that the Bishop of Natal, retaining his status as bishop, was entitled to receive the endowment of the see.
"The Archbishop of Canterbury, whatever may be his authority over his own suffragans, has, in our opinion, no jurisdiction, inherent or conferred by the Crown or by Parliament, which can enable him to inquire, as a Court, into the doctrines advocated by the Bishop of Natal.
"It has been suggested that the Crown as visitor, or as supreme in causes ecclesiastical, or by virtue and in exercise of some other supposed power, may be able, either by Commissioners specially appointed, or by means of the Privy Council, to hear and determine the points raised against Dr. Colenso.
"We are unable to find the slightest ground on which this suggestion can be supported.
"The Crown is supreme over all causes ecclesiastical in the same, and in no other sense, and to no greater extent than the Crown is supreme : over causes temporal—that is, by law, and by means of the various j established courts of law.
"The Submission of the Clergy Act (25 Hen. 8, c. 19) gave no such power to the Crown. Section 4 of that Act made it lawful for the parties grieved by any decision of an ecclesiastical judge in England to appeal to the King in Chancery, for which court of appeal the Judicial Committee of the Privy Council is now substituted. This is an appellate, and not an original jurisdiction.
"The High Commission Court, established by 1 Eliz. c. 1, is abolished by 16 Ch. 1, c. 11, and the revival of the High Commission Court or any similar court is especially provided against by 13 Ch. 2, st. 1, c. 12, and 1 Will. & M. Sess. 2, c. 2.
"With reference to the authorities referred to, intermediate in date between 1 Eliz. c. 1 and 16 Ch. 1, c. 11, it is hardly necessary to observe that they state the law as it was in force under the former of these statutes, and which ceased to be in force on the passing of the latter.
"No argument in favour of the power of the Crown can be derived from 3 & 4 Will. 4, c. 41, s. 4, by which it is enacted that it shall be lawful for his Majesty 'to refer to the Judicial Committee for hearing or consideration any such other matters as his Majesty shall think fit; and such Committee shall thereupon hear or consider the same, and shall advise his Majesty thereon in manner aforesaid.'
"To make this section applicable to the judicial determination of an ecclesiastical matter would be in effect to restore the High Commission Court. The section is to be taken as referring to questions not of judicial cognizance on which the Crown may desire to be solemnly advised by persons conversant with the law.
"The only remaining consideration is whether the merits of the case can be raised on a scire facias to revoke the letters patent granted to the Bishop of Natal.
"This manner of raising the question between the Bishop of Natal and his opponents was suggested by the Master of the Rolls in the case of The Bishop of Natal v. Gladstone.
"The only ground on which the letters patent would be revoked by such a proceeding is, in our opinion, that the letters were ab initio void, as having issued improvidently. This would leave the merits untouched.
"Indeed, if the view taken in The Bishop of Natal v. Green as to the status of the colony be correct, the letters patent might possibly be held valid.
"We are therefore of opinion that no means at present exist for trying before any tribunal competent to decide the question whether or no Dr. Colenso, the present Bishop of Natal, has advocated doctrinal opinions not in accordance with the doctrines held by the Church of England; and, assuming the present Bishop of Natal to have been guilty of an ecclesiastical offence, no steps can be taken to bring him, as such Bishop, before any tribunal.
"We do not, however, think that, upon the present materials, it would be satisfactory or proper for us to enter into the question, whether, if Dr. Colenso were present within the jurisdiction of an English ecclesiastical court, and were in this country to commit any offence against the laws ecclesiastical, he could, or not, be proceeded against, under the Church Discipline Act, as a clerk in holy orders of the Church of England."
The judgment of the Master of the Rolls, however, in The Bishop of Natal v. Gladstone, shows that there is a mode by which the question of heresy might be tried—namely, by the trustees of the Colonial Bishoprics' Fund refusing to pay the Bishop his salary on the alleged ground of heretical opinions, and distinctly raising this question in a suit instituted by him to enforce payment. The case might thus be decided in the Court of Chancery and carried on appeal to the House of Lords.
In an appeal from two orders of the Court of Chancery in Bermuda (Ex parte Jenkins, L. It. 2 P. C. 258), upon an application on behalf of the appellant, a clergyman, for a writ de vi laicd remorendd to remove any opposition to his being inducted into a parish church as rector, the Judicial Committee decided that the Court of Chancery was justified in refusing the writ on the ground that the power of issuing such a writ had not been expressly imposed upon the Court of Chancery in Bermuda by the Act of the colony creating that Court. They Raid that it would be an inconvenient precedent to imply the existence of a writ not known to the Court itself as necessary to the enforcement of the legal right obstructed merely from the creation of the Court, and a general grant in large words of general jurisdiction. As to the writ de vi laicd removendd, the Court said that it might be regarded at the present day as an obsolete proceeding: see Fitz. Nat. Brev. D. 54. They held that the appellant was duly presented by the Governor to the rectory, and was instituted by the lawful authority of the Bishop of Newfoundland. They said that it was a fact which would not bo disputed, that for more than a century the Crown possessed the power of collating to all the vacant benefices in the Bermudas by direct nomination, a power which it exercised by delegation to tho successive Governors, who were usually described as Ordinaries in their patents. But when a Bishop or ecclesiastical ordinary was duly appointed, the Crown, as patron, thought proper to leave to the Governor power of nominating the clerk, but recognized, by the letters patent granted to the Bishop, the power of institution belonging to his office. As to the ecclesiastical authority of the Governor of a colony as ordinary, sec Bashatn v. Lumley, 3 C. and P. 489. As to a sentence of suspension passed by the Bishop of Jamaica, and reversed for irregularity, the party not having been cited to answer any particular charge, sec Bowerbank v. Tiie Bishop of Jamaica, 2 Moore, P. C. 449. As to the authority of a synod of a Church in connection with the Church (if Scotland in Australia, see Lang v. Purves, 15 Moore, P. C. 389, and compare Craigdallie v. Aikman, 1 Dow. 1; and as to a synod of the Dutch Eeformed Church at the Cape of Good Hope, Murray v. Burgess, L. li. 1 P. C. 302.
The East In 1813, when the British territories in India were under the
Indies. government of the East India Company, the first bishopric was estab
lished there; and although the Bishop was appointed and consecrated under the authority of the Crown, it was thought necessary or right to obtain the sanction of the Legislature, and that an Act of Parliament (53 Geo. 3. c. 155, s. 49) should be passed to give the Bishop legal status and authority. In 1833, two additional bishoprics were founded, one at Madras and the other at Bombay, and an Act was passed (3 & 4 Will. 4, c. 85), by the 93rd section of which it was enacted that the Crown should have power to assign limits to the dioceses of the three bishoprics, and from time to time to alter and vary the same limits respectively, and to grant to such Bishops, within their dioceses, ecclesiastical jurisdiction; and by section 94, the Bishop of Calcutta was to be Metropolitan in India.
On a question which came before the Queen's Advocate (Sir Travers Twiss), Mr. Pontifex, and myself, in 1868, as to whether the Crown had the power to vary by letters patent the limits of the dioceses of Calcutta, Madras, and Bombay, we were of opinion that, having regard to the statute 3 & 4 Will. 4, c. 85, s. 93, the Crown had such power; but it was so doubtful whether there was any power in the Crown to alter and vary by letters patent the limits of the existing archdeaconries of Calcutta, Madras, and Bombay respectively, that we advised that, if the scheme were carried out, an Act of Parliament should be obtained for the purpose. We added that the Crown, in our opinion, had not the power to grant by letters patent to the bishops of the respective dioceses in India, jurisdiction over congregations of the Church of England in places not within the dominions of the Crown.
If a will be made in this country and proved in the Prerogative Effect of Court, the probate will not extend tojsroperty in the colonies. Nor Letters of will a grant of administration obtained here, although the intestate tionhi the was resident and died in this country: Burn v. Cole, Amb. 416 ; Atkins Colonies, v. Smith, 2 Atk. 63; Thorne v. Watkins, 2 Ves. Sen. 35. And if the testator was domiciled here, the Judge of Probate in the colony is bound by the probate here, and ought to grant it to the same person : per Lord Mansfield, in Burn v. Cole, ubi sup. If the testator is domiciled in a colony, the will should be proved in the Probate Court there, and a copy transmitted to, andjjroved in, the Ecclesiastical Court hei e^ as an original will: Williams on Executors, 303, 308 (4th edit.). See Hare v. Nasmyth, 2 Add. 25. A probate obtained in the proper ecclesiastical court here extends to all the personal property of the deceased, wherever situate at the time of his death, including the colonies and any country abroad: Whyte v. Rose, 3 Q. B. 493 (in Error); see Swift v. Nun, 26 L.J. (Ex.)(N.S.)365. A grant of administration obtained here will not extend to the colonies, though the intestate died and was resident here.
It has been held that a foreign plantation, though an inheritance, was to be looked npon^as a chattel to pay debts, and a testamentary thing: Noell v. Bobinson, 2 Ventr. 358; see also Blankard v. Galdy, 4 Mod. 215. And as to property in any of the British plantations in America, see statute 5 Geo. 2, c. 7, repealed as to negroes by statute 37 Geo. 3, c. 119: see Thomson v. Grant, 1 Euss. 540; and Manning v. Spooner, 3 Ves. 118.
The compensation money fur slaves in Jamaica was held to be legal assets in Lyon v. Colville, 1 Coll. 449. The term British plantations in America, in statute 5 Geo. 2, c. 7, includes the West Indies, and it has been held that although estates there were made legal assets by that statute, they might be devised so as to make them equitable assets: Charlton v. Wright, 12 Sim. 274. As to the East Indies, see statute 39 & 40 Geo. 3, c. 79, s. 21; 55 Geo. 3, c. 84; Act of the GovernorGeneral of India in Council VII. of 1849, and Act II. of 1850.
ON THK POWERS AND DUTIES AND THE CIVIL AND CRIMINAL LIABILITIES OF GOVERNORS OF COLONIES.
(1.) Joint Opinion of the Attorney and Solicitor General, Sir Thomas Trevor and Sir John Hawles, as to how a Lieutenant-Governor could he tried for Misdemeanor. 1701.
To the Right Honourable the Lords Commissioners for Trade and
In answer to your Lordships' quseries, signified to us by Mr. Popple the 30th of April last, relating to offences committed by Captain Norton, and against the Act for regulating abuses in the plantation trade:
First: We are of opinion that, for such offence or wilful neglec t, the Lieutenant-Governor, Captain Norton, may be indicted and tried in the Court of King's Bench, by virtue of the Act for punishing governors of plantations for offences committed by them in the plantations. But we doubt whether he will incur the penalty of £1000 by the Act, made the 7th and 8th of the King, for regulating abuses in the plantation trade; for the words of the Act extend only to Governors and Commanders-in-Chief, and is given only for the offence of not taking the oaths or putting the Acts in execution; but he will be finable at the discretion of the Court.
Secondly: We think a foreigner endenized is qualified to be master of a ship trading to the plantations, unless there be a provision in the letters patent of denization, that such denization shall not enable him to be master of a ship, which is usually inserted for that purpose; but hath been omitted in some denizations of French Protestants since the reign of his present Majesty, by Order of Council.
Thirdly: We are of opinion, that a Scotchman is to be accounted