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Colonial Cases

Archbishop of Cape Town v. Colenso, 1873

[church governance]

Archbishop of Cape Town v. Colenso

Special Court, Committee of the Privy Council
23 June 1873
Source: The Times, 24 June, 1873

LAW REPORT.
COMMITTEE OF THE PRIVY COUNCIL, June 23.
(Present - Lord Chief Baron Kelly, Sir G. Grey, the Right Hon. G. Hardy, Lord Justice Mellish, and Sir M. Smith.)
THE ARCHBISHOP OF CAPETOWN AND DR. COLENSO, LORD BISHOP OF NATAL.
  This matter came before a Special Court in opposition to a Bill which passed the Legislative Council of Natal, by a majority of one vote, on the 15th of November, 1871, was thereupon reserved by the Lieutenant-Governor of the Colony for the signification of Her Majesty's pleasure thereon. Several memorials had been addressed to Her Majesty's Principal Secretary of State for the Colonies in opposition to the Bill, one from the Archbishop of Capetown, acting on behalf of the Council for Colonial Bishoprics; one by the Bishop of Maritzburg; and one by certain members of the Church of England in the colony of Natal. Her Majesty had referred the several petitions and the bill to a Committee to report thereon, and their Lordships now assembled.
  The Attorney-General acted as assessor, and Sir A. Helps as Clerk of the Council, assisted by Mr. Harrison.
  Sir Richard Baggallay, Q.C., and Mr. Walter Phillimore appeared in opposition to the Bill; Mr. Fitzjames Stephen, Q.C., and Mr. Westlake for Dr. Colenso.
  The object of the Bill, which by one vote had passed the Legislative Council and on which their Lordships were required to advised Her Majesty, was to vest in Bishop Colenso and his successors the land which, from the time of the appointment of the first Bishop of Natal, had become vested in the Bishop of Capetown in trust for the English Church at certain places in the colony, and the other object was to confer upon Bishop Colenso and his successors with reference to the lands and also to lands which had become vested in himself upon similar trusts from the time of his appointment to the time of the passing of the sentence of his deposition, powers of alienation and other dealing such as are not usually conferred upon or possessed by trustees in England or Natal.
  It was alleged that both objects were strongly opposed in the colony, and Dr. Colenso's religious opinions made it desirable that he should not be appointed trustee of the property under the Bill. It was evident, according to the case presented to the Committee, from the several proceedings initiated by Bishop Colenso before the Supreme Court of the colony, that he was desirous when he had the power to eject from the churches and other buildings in the colony held in trust for the Church of England the clergymen and laymen who held with the Metropolitan, and in the opinion of the Supreme Court he had the power of ejectment where he was trustee of land on which churches were erected. Some part of the property, it was further alleged, formed a portion of the endowment of the Bishop himself, which was an objection to the appointment of a cestui que trust to be a trustee.  The property was originally vested in the late Bishop of Capetown, and it was further stated that Bishop Colenso did not enjoy the confidence of the Church of England, but on the contrary had been declared by Convocation to be excommunicated, and had been forbidden by several Bishops in England to officiate within their dioceses. It was admitted that it would be for the benefit of the property if an impartial trustee or a body of trustees could be appointed. The Council for Colonial Bishoprics were represented by the Archbishop of Canterbury, and His Grace also appeared in his own right as an objector the Bill, and the objectors submitted that no cause was shown for its introduction in the Legislature of the colony, and that the Committee should recommend to Her Majesty to refuse her assent to the same.
  The case presented to their Lordships by the Bishop of Natal set forth various reasons. He stated that the arguments used against the Bill in the documents before the Committee made constant references to the distinction existing in the colony of Natal between the Church of England and the Church of South Africa, partly for the purpose of deprecating what was represented as being an interference by State authority with religious disputes, and partly for the purpose of inducing Her Majesty, by withholding her assent to the present Bill, to secure to the Church of South Africa that prospect of enjoying at some future time the lands which had been given in trust for the English Church. Theological differences arose between the Bishops of Natal and Capetown, and in 1864, the Bishop of Capetown, assuming, it was alleged, to act as Metropolitan, pronounced a sentence by which he proposed to depose from his office the Bishop of Natal.  Her Majesty, by an order, on the advice of the Judicial Committee of the Privy Council, declared the order to be null and void.  Legal proceedings had arisen, and the want of a trustee, which it was now proposed by the Bill to supply, had been a very serious natter in the colony. The late Bishop of Capetown (Dr. Gray) had written a letter, which appeared among the documents, and the property in question was set out in several schedules.
  Sir R. Baggallay and Mr. Walter Phillimore urged various points to induce their Lordships to advise Her Majesty to withhold her assent, and submitted that Dr. Colenso would be an improper person to appoint trustee under the Bill. Either the measure could be rejected by the Queen not assenting or another one could be introduced, under which an impartial person could be appointed to act as trustee of the property.
  The arguments were not concluded when their Lordships rose.

Source: The Times, 25 June, 1873

  This case was resumed and concluded. The question raised was considered of great importance, as affecting the Church of England in the colonies.
  The Attorney-General was in attendance as assessor.
  .  .  .  
  There were several petitions to Her Majesty, one from His Grace as from the Council of the Colonial Bishopric Fund, and also as Primate of the Church of England, and another from the Bishop of Maritzburg and other members of the Church in the Colony praying her to withhold her assent to the Bill which by one vote had passed the Legislative Council of Natal, by which Dr. Colenso, as a Corporation Sole, and his successors, would be appointed trustees of the Church property, which would be, it was alleged, contrary to law, and be of serious import to the religious community of the Colony on account of the views entertained by Dr. Colenso, as he would be able to eject the clergymen and laymen who differed with him, and alienate the property which had been contributed by the Colonial Bishopric Fund and others for the English Church.
  The Bishop of Natal, in a statement of his case, went fully into the matter of his dissensions with the late Bishop of Capetown, and urged the necessity of appointing a trustee to protect the property, and that the Bill which had passed the Legislative Council only required Her Majesty's assent to become law. He alluded to the distinction made, and alleged that the object of inducing the Queen to withhold her assent from the Bill was to secure to the Church of South Africa the prospect of enjoying at some future time the lands which had been given in trust for the church of England. The Bill had been referred to a Select Committee, and was passed as amended. It recited that previously to the consecration of the present Bishop of Natal property within the colony had been vested in the then Bishop of Capetown and his successors, in trust for the English Church. That the Bishop of Capetown did, by an instrument, resign in 1853 his Bishopric or See of Capetown for the purpose of having the district over which he had been appointed Bishop divided into several Bishoprics, and the present Bishop of Natal was consecrated on the 30th of November, 1853, and became successor to the Bishop of Capetown in the Colony of Natal; that it had been declared by a judgment of the Privy Council  that the then existing Bishop of Capetown, when he resigned the office he held under letters patent of 1847, ceased to be a trustee of all such property, and, as doubts had arisen whether the Bishop of Natal could legally enter upon the duties as trustee, as successor to the former Bishop of Capetown, it was desirable to remove such doubts by authorizing the transfer of such property to the Bishop of Natal and his successors, and also with power, under certain restrictions, to alienate the property vested in him. Two passages in the appendix before their Lordships were referred to in support of the views entertained by the Archbishop of Canterbury and those who objected to the Bill. These passages stated that the English Church to which land had been granted, had divided into two parties, each having a Bishop for its head, and each complying and carrying on its services in accordance with the rules of the Church of England, and that a large party opposed the appointment of Dr. Colenso - such as not having the confidence of the Church of England; that the Crown would in future abstain from granting letters patent to Colonial Bishops,  and therefore it was very unlikely he would ever have a successor, in which case the trusts created by the Bill would be again in abeyance. Reference was also made to the judgment given by Lord Westbury when the case was before the Judicial Committee and the letters patent were considered, which his Lordship said, could assign him no see, give him no jurisdiction, and no sphere of action, and could create no diocese.
  Mr. Walter Phillimore resumed his address, and urged upon the Committee to advise Her Majesty not to assent to the Bill submitted to their consideration.
  Mr. Fitzjames Stephen and Mr. Westlake were heard in support of the Bill, reminding their Lordships that the Bill had, as amended, passed the Legislative Council, and that it was not usual for Her Majesty to be advised to withhold her assent unless for some very powerful reason. There had been no sufficient reason alleged for their Lordships to go out of the way, and in their discretion advise Her Majesty to stop a Bill from becoming law because there had been some dissensions in the Colony. The learned counsel alluded to the practice in India, where he had had some experience, and trusted their Lordships would think it their duty to allow the Bill to become an Act of Parliament, and thus enable the Bishop of Natal to become trustee of property which required to be administered.
  Sir Richard Baggallay maintained, in reply, that his objections had not been answered. The matters he had urged upon their Lordships were of a grave character, and not as represented by his learned friend. He represented the Archbishop of Canterbury as objecting, on the part of the Council of the Colonial Bishopric Fund, to the appointment, and he also represented His Grace as Primate of the Church of England against the Bill. There would be no successor to the Bishop of Natal, since the decision of a case before the Judicial Committee arising out of the Colony there had been no Bishops appointed by letters patent, but they were consecrated for the colonies by a Royal Mandate, and no particular place was specified, so that there would be no successor, and if the Bill received the assent of the Queen the trusts could not continue after the present Bishop of Natal. He submitted that he had shown sufficient for their Lordships to advise Her Majesty to withhold her assent, and thereby prevent Dr. Colenso from becoming trustee of the property in the Colony of Natal.
  Their Lordships, on the conclusion of the argument, conferred together. Counsel were requested to withdraw, and it was afterwards announced that they need not wait. According to practice, their Lordships will report their opinion to Her Majesty, and the result will be made known by Order in Council.  

Published by Centre for Comparative Law, History and Governance at Macquarie Law School