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Colonial Cases

Colenso v. the Bishop of Cape Town 1865

[church governance]

Colenso v. the Bishop of Cape Town

Judicial Committee of the Privy Council
1865
Source: The Times, 15 December, 1864

THE CASE OF DR. COLENSO.
  The case of Bishop Colenso has come before the Privy Council in a form which requires a little explanation. He does not merely appeal to Her Majesty in Council against the sentence of deprivation pronounced upon him by the Bishop of Cape Town on the 16th of December last, for he also denies the validity of that sentence and the jurisdiction on which it purports to be founded. On this ground her prays Her Majesty, through the Judicial Committee, to declare that the Letters Patent under which he holds his own episcopal office constitute an indefensible title until they shall be recalled for some legal cause of forfeiture, and that the Letters Patent by virtue of which the Bishop of Cape Town claims to have acted were unduly obtained from Her Majesty, and cannot, for other reasons, affect his own rights.  Should the opinion of the Court be adverse to him on this point, he further prays that his petition should be heard by way of appeal from the sentence of which he complains, and thereby he raises another issue in the petition of jurisdiction, for it will be remembered that the Bishop of Cape Town recognized no appeal from his own Court except to the Archbishop of Canterbury, and, in conceding that, affected to waive "any real or supposed rights of the Church." The Judicial Committee, therefore, have first to decide whether or not all the proceedings at Cape Town in December last were null and void, and, secondly, whether or not the Royal Supremacy, in its most important function, extends to the colonies. Unless and until the first of these questions shall be determined in the negative, and the second in the affirmative, they cannot proceed to entertain the merits of the cause.
  It may assist our readers in following a case of the highest interest from a constitutional point of view if we place before them its few material facts within a short compass and in chronological order. The district of Natal was annexed to the settlement of the Cape by Letters Patent dated May 31, 1844, and on April 30, 1845, was erected into a separate government for certain purposes. On September 25, 1847, the Cape and St. Helena were formed by other Letters Patent into an episcopal diocese, comprising Natal among other dependencies of the former, and the Archbishop of Canterbury was commanded to consecrate the present Bishop of Cape Town thereby nominated. At this time representative government had not been established at the Cape of Good Hope, but on the 23d of May. 1850, Letters Patent were issued empowering the Legislature of that colony to adopt the constitution now in force there. On the 23d of November, 1853, the diocese of Cape Town, then vacant by the temporary resignation of Dr. Gray, was divided into three, to be styled Cape Town, Graham's Town, and Natal, and Dr. Colenso was appointed Bishop of Natal, subject, however, and subordinate to the metropolitan authority vested by the same instrument in the Bishop of Cape Town.  Dr. Gray was re-appointed as Metropolitan Bishop by Letters Patent dated December 8, 1953, subject, however, and subordinate to the See of Canterbury, and authorized to "exercise metropolitan jurisdiction" over his two suffragans. These Letters Patent went on to give the Bishop of Cape Town cognizance of any proceeding to be instituted against the Bishops of Graham's Town or Natal, and to provide that any party aggrieved by any judgment of the Bishop of Cape Town should have an appeal to the final decision of the Archbishop of Canterbury, on giving notice of that intention within fifteen days afterwards. On the 8th of December, 1853, Dr. Colenso took an oath, administered by the Archbishop of Canterbury, promising "all due reverence and obedience" to the Bishop of Cape Town, without, as he now avers, having any knowledge of these provisions in the Letters Patent of the latter. On the 1st of July, 1863, being then in England, he was cited to answer certain charges of false doctrine before his Metropolitan. He replied in a letter protesting against the Bishop of Cape Town's jurisdiction, subject to which protest he admitted the authorship of the obnoxious passages, but claimed that they should be read as part of the works from which they were extracted, and denied their repugnance to the doctrines of the Church. A similar protest was put in on his behalf by his agent, Dr. Bleek, but the prosecution was allowed to go on, and sentence was pronounced on the 16th of December, 1863. On that occasion, as we have already mentioned, the Bishop of Cape Town intimated that he would "consent" to forward his judgment to the Archbishop, feeling that it would be a great relief to share his own responsibilities with the Chief Pastor, and, "if he should see fit," with the other Bishops of the Church at home.
  We have now before us an outline of the circumstances upon which the Judicial Committee have to advise Her Majesty.  The first thing to be considered obviously is whether the Patent of the Bishop of Cape Town, being issued after a Constitution had been granted to the colony, has any force at all. If not, this flaw can hardly be cured by an oath of "due reverence and obedience" from Dr. Colenso, whether it were taken in ignorance of its effect or not, and whether or not the Archbishop of Canterbury had the right to administer it. Had Dr. Colenso 's Patent been dated subsequently to that of his Metropolitan, the case would, perhaps, have worn a different aspect, and it is to be regretted that this colour, being contrary to the fact, is given to it in one of the recitals preceding the judgment:
  "Whereas  .  .  .  the said Bishop of Natal did voluntarily recognize and submit himself to the provisions of the said Letters Patent, and did accept the said office of Bishop of Natal under the said provisions, &c., - though he had actually been consecrated nine days before they came into existence. It is manifest that an ordinance emanating from the Sovereign in Council, and purporting to institute a new course of procedure in a colony already enjoying constitutional government, will be regarded by lawyers with much suspicion. If it be valid, it not only overrides the powers of the Colonial Legislature, but deprives a British subject of a right which the common as well as the statute law gives him. It has been held by the greatest authorities, from Lord Coke downward, that even in the days of Romish usurpation an appeal lay to the King in the last resort from an ecclesiastical sentence. The statute of Henry VIII, which transferred to the Crown the appellate jurisdiction formerly exercised by the Popes carried out, but did not originate, this principle, and since that time no English clergyman has been entirely at the mercy of a clerical tribunal. If Bishop Colenso may be deprived of his office by three South African Bishops, one of them not even a suffragan of Cape Town, either without appeal or with no other appeal than to Canterbury, he stands in a worse position than a humble priest before the Reformation. There is no colonial Privy Council to give him redress, and he is left without remedy against the arbitrary decree of a Synod acting as a Court. However much his doctrinal views may shock the majority of Churchmen, this result would satisfy very few besides Dr. Gray himself. It is the fault of that prelate that the Bishop of Natal represents in this instance a principle much less open to exception than his theological teaching. Had the judgment against him not embodied an assumption of jurisdiction beyond that conferred by the disputed Patent, and had it not been immediately preceded by the convention of a Synod, in derogation alike of the rights of the laity and of the Queen's supremacy, he would have carried with him a considerable degree of sympathy. As it is, before we can enter upon the consideration of Dr. Colenso's alleged heresies, or even upon the judicial proceedings of his Court, we are met by pretensions which disclose the animus of its members, which offend England feeling on a very tender point, and which must certainly tend to make the public wish that the law may prove to be on Dr. Colenso's side.

 

Source: The Times, 15 December, 1864


THE CASE OF DR. COLENSO.

JUDICIAL COMMITTEE OF THE PRIVY COUNCIL.
  The appeal of Dr. Colenso against the decision of his Metropolitan, the Bishop of Cape Town, depriving him of his see of Natal, and prohibiting him from "the exercise of any Divine office within the metropolitan province of Cape Town," because of the views promulgated by him in certain works which he has published, came on for hearing, at half-past 10 o'clock yesterday morning, before the Judicial Committee of the Privy Council. The members of the Council present were the Lord Chancellor, Lord Cranworth, Lord Kingsdown, Dr. Lushington, and the Master of the Rolls.
  Mr. W. James, Q.C., of the Chancery bar, Mr. Fitzjames Stephen, Mr. Wallace, and Mr. E. Charles appeared for the appellant; Sir Hugh Cairns, the Queen's Advocate, and Mr. Badeley for the Bishop of Cape Town, Dr. Gray.
  In the case submitted for the consideration of the Court on behalf of the latter, his counsel, after setting forth the circumstances under which the appeal against his decision is made, go on to say - "The said Right Rev. Robt. Gray, having been served by the petitioner with a copy of the said petition, but, nevertheless, under protest, denying with all due reverence, that Her Majesty in Council has any jurisdiction in the subject matter of the said petition, or that any appeal lies from what he has done in the matter of the complaint of the Right Rev. Dr. Colenso, either to Her Majesty in Council or to the Judicial Committee." The facts of the case are then embodied in the document, which concludes by stating that Dr. Colenso not having availed himself of the liberty of appeal to the Archbishop of Canterbury, as provided, his appeal to the Judicial Committee of the Privy Council should not be allowed for the following reasons:-
  "The said Right Rev. Dr. Gray having been served by the petitioner with a copy of the said petition, desires now to appear in the matter of the said petition, but nevertheless under protest, denying with all due reverence, that Her Majesty in Council has any jurisdiction in the subject matter of the said petition, or that any appeal lies from what he, the said Right Rev. Dr. Gray, has done in the matter of the said complaint of the said Right Rev. Dr. Colenso, either to Her Majesty in Council or to the Judicial Committee of Her Most Hon. Privy Council, the appeal should not be allowed for the following reasons:-
Because he the said Right Rev. Dr. Gray as Bishop of the see of Cape Town, and Metropolitan Bishop as aforesaid, possesses full right and title to exercise the powers and authority of Metropolitan Bishop upon and over the Suffragan Bishops of the province of Cape Town, and upon and over the bishop of Natal, as one of such suffragan Bishops.
Because the said petitioner received his said Bishopric of Natal, and was appointed and consecrated thereto, upon the faith of his subjection and submission to the said power and authority of the said Dr. Gray, as such Metropolitan Bishop as aforesaid; and by reason of the premises, and of his said solemn oath in that behalf, freely and voluntarily submitted himself, as Suffragan  to the exercise of the said power and authority of the Metropolitan Bishop of Cape Town, and became and was subject to those powers and that authority.
Because the charges so preferred, as aforesaid, and made in due form of law, were such as the said Dr. Gray, as Bishop of Cape Town and Metropolitan Bishop, as aforesaid, was not only fully entitled, but also solemnly bound, to receive and examine  and to adjudicate and determine, on the hearing and examination thereof were conducted in all respects solemnly and properly, with all due regard to the rights  and interests of the petitioner, conformable to legal  precedent and authority, and according to the rule and also to the forms of law, so far as those rules  were applicable, and could be applied to such proceedings; and the adjudication and determination  were solemnly and properly made, and the said judgment and sentence duly pronounced and promulgated, according to the  duty, right, power, and authority of the  said Dr. Gray, as Bishop of Cape Town  and Metropolitan Bishop aforesaid.
Because, looking at the said letters patent as constituting a contract between the said petitioner and the Bishop of Cape Town, any appeal from the exercise of authority by the latter under the said letters patent would lie to the Archbishop of Canterbury; while, on the other hand, any departure from or excess of the authority conferred by the said letters patent would be a proper subject of redress before the Civil Courts of the colony at the instance of the said petitioner. And if the said petitioner should desire to impugn the said letters patent as having been improvidently granted by the Crown, the proper course for him to pursue would be by proceedings to repeal the said letters patent."
PRAYER.
The Proctor for the said Right Rev. Dr. Gray will pray that your Lordships will be pleased to advise Her Majesty to pronounce for the protest of the said Dr. Gray, and against the said pretended complaint and appeal.
Robert Phillimore. H. E. Cairns. Edward Badeley.

Mr. W. James, in opening the case for Dr. Colenso, said that the petition in support of which he appeared raised many grave questions, affecting, as those questions did, the legal status of every colonial Bishop throughout the empire. The matter was one, too, which was of the highest importance to the laity of the diocese of Natal.  To them it was of the utmost consequence to have the point settled without delay, whether Dr,. Colenso was or was not still the Bishop to whom they owed canonical obedience. If he had been effectually by process of law deprived of the see of Natal, then it was Her Majesty's prerogative and her correlative duty to fill up the vacancy thus created, so that there might be no interruption to the decent worship of Almighty God in that portion of her dominions, according to the rules, practices, and formularies of the Church of England, It was also of great importance to the Bishop of Natal himself to answer the charge of false doctrine and heresy which had been brought against him determined by a grave, impartial, judicial tribunal, and not by a person who was himself substantially the prosecutor in the case, who had thrown himself with most impassioned eagerness into theological controversies, who had shown himself to be actuated throughout the whole of those proceedings by an overwhelming ambition to establish his own authority, and who had proved himself to be as reckless of the substance as he was ignorant of the forms of justice.
  Complaining of the conduct of the Bishop of Cape Town, as he had a right to do, the Bishop of Natal thought and had been advised that it was his duty to appeal to the Sovereign to have the point in dispute at once and for ever set at rest. He felt that it was not desirable that recourse should be had to violence, or that the spectacle should be exhibited of one Bishop prosecuting another in the courts of the colonies for the purpose of settling questions of ecclesiastical law. He, on the contrary, deemed that the proper course to pursue was, following the precedents which had been set in other instances, to appeal to the Sovereign for relief, and acting upon that view he now submitted his case to the consideration of the Court.
  The Lord Chancellor. - I think it is desirable that you should for the present confine yourself, in dealing with the case, to the question of jurisdiction.
  Mr. James said it was not his intention to enter into the merits of the case on that occasion, but in discussing the question of jurisdiction it was necessary that he should state the facts as they stood. By letters patent under the great seal of the United Kingdom, dated the 31st of May, 1844, the district of Natal was annexed to the settlement of the Cape of Good Hope, and the Legislature of the settlement was empowered to make laws for its good government. By letters patent dated the 30th of April, 1845, the district was erected for certain purposes into a distinct and separate government, administered by a Lieutenant -Governor, but by letters patent dated March 1, 1847, so much of the first-mentioned letters patent as authorized the Legislature of the Cape of Good Hope to make laws for the district were revoked under powers reserved for the purpose, and it was ordained that a Legislative Council should make for it such laws as were required. After that and in the same year the diocese of Cape Town was first created, and Dr. Gray was appointed Bishop, with the right of resignation. Availing himself of that right he did resign some years after, and on the 23d of November, 186353, the see was vacant.
  On that very day letters patent under the Great Seal were issued constituting the district of Natal a separate diocese, and on the 30th of the same month Dr. Colenso was ordained and consecrated Bishop of the new see. Dr. Gray was also on the 8th of December following appointed by letters patent under the Great Seal Metropolitan Bishop of the see of Cape Town, and in those letters patent it was set forth that the Bishop of Natal and the Bishop of Graham's Town, which had also been created a diocese, should be suffragan Bishops to the Bishop of Cape Town.  It was further provided that the Bishop of Natal should be "subject and subordinate" to the Bishop of Cape Town and his successors, in the same way as any of the Bishops within the see of Canterbury were to the Archbishop of the province, and that in the event of any proceedings being instituted against the Bishop of Graham's Town or Natal they should be carried on before the Bishop of Cape Town, who was authorized to take cognizance of them, but that if either of those dignitaries should feel himself aggrieved  by any judgment or sentence pronounced against him by his Metropolitan, it should be lawful for him to appeal to the Archbishop of Canterbury, notice of his intention to do so being given within 15 days. It was necessary further to state that on the 8th December, 1853, the appellant took the usual oath of canonical obedience to the Bishop of Cape Town, but in no other manner, as could be clearly proved, did he recognize any of the provisions in the letters patent affecting the Bishop of Cape Town, for of those provisions he had no knowledge for a long time afterwards.
  The LORD CHANCELLOR. - Was the form of oath to be taken prescribed by the letters patent?
  Mr. James said he believed it was, and it was precisely the same as the oath usually taken by suffragan Bishops in the province of Canterbury to the Archbishop. The oath taken by the appellant was as follows:-
   "I, John William Colenso, appointed Bishop of the see and diocese of Natal, do profess and promise all due reverence, and obedience to the Metropolitan Bishop of Cape Town and his successors, and to the Metropolitan Church of St. George., Cape Town.
  In taking the oath Dr. Colenso simply acknowledged in the same general way as a suffragan bishop in this country would do the authority of his Metropolitan. That being so, on the 1st of July, 1863, the appellant, being then in England, was served with a citation signed by the registrar of the Bishop of Cape Town. To that citation were annexed certain documents containing letters from persons in Natal, setting forth that they had charges of false teaching to bring against Dr. Colenso, and stating the mode in which they proposed to establish those charges. Dr. Colenso thereupon caused a protest, dated October, 1863, to be served on the Bishop of cape Town. In that document the appellant protested against his Lordship's assumption of jurisdiction and denied his right to take cognizance of the charge of false teaching which had been preferred against him, giving notice at the same time that he would, if necessary, take such measures to contest the validity of the proceedings and to resist the execution of an adverse judgment consequent upon them as he might be advised to adopt. The appellant moreover stated that his absence from the Cape rendered it impossible for him to know what view Dr. Gray might take of his jurisdiction, that he had no desire to cause any unnecessary delay, and that he felt it therefore desirable to inform his Lordship what the answer was that he would make to the charge. He admitted having published the matter contained in the articles in question, but contended that the passages adduced to support the charge against him did not constitute any offence against the law of the Church of England.  He added that he had instructed Dr. Bleek to appear in his behalf to protest against his Lordship's jurisdiction, and have notice that in the event of judgment being pronounced against him he would appeal against the decision.
  Notwithstanding the protest of the appellant, however, the Bishop of Cape Town, assisted by the Bishop of Graham's Town, one of his suffragans, and the Bishop of the Orange Free State, who was a missionary bishop, in no sense connected with the see of Cape Town, and who was wholly without the jurisdiction of Her Majesty, proceeded to try the case. Dr. Bleek attended, and, handing in the letter of the Bishop of Natal, protested in writing against the jurisdiction. The proceedings were nevertheless continued, and certain garbled extracts taken from private letters which had passed between the appellant and his judge were put in as evidence, clearly showing that the judge himself must have been in communication with the prosecutors, and must have assisted them in getting up the case. For his own part, he never heard in the whole of his practice of such a proceeding, which was, he contended, in violation of every rule of evidence, and of every form observed in this country in the administration of justice.
  The next step taken by the Bishop of Cape Town was, however, still more extraordinary. The trial was brought to a close, and judgment reserved. In the interval which elapsed between the hearing of the case and the pronouncing of the sentence the Bishop of Cape Town called together what he was pleased to call a synod of the Church of South Africa, for the purpose of laying down certain rules, evidently with the view escaping from the action of the ecclesiastical law of England.  The synod in question was composed of the Bishop of Cape Town himself, the Bishop of Graham's Town, and the Bishop of the Free Orange State, and it passed resolutions to the effect that the laws enacted by statute for the government of the Established Church in England did not apply to the Church in South Africa, and were to be  received there only in so far as they might serve to remedy manifest difficulties and omissions of "the common law or laws framed and enacted by the synod of that Church." What the expression "common law" meant as used in that passage he could not understand.   
  Lord KINGSDOWN asked if the synod in question was attended by the clergy of South Africa.
  Mr. James said that the clergy were not summoned to attend it, and that it was composed exclusively of the three bishops he had already named. The Bishop of Natal even had not been invited to be present at its deliberations, although he was at the time in full possession of all his episcopal functions. Thus constituted, the synod resolved that the Final Court of Appeal was not a Court of Appeal for the Church of South Africa, which was not bound "by any interpretation put upon the statutes by any Ecclesiastical Court in England, or any decisions pronounced by such Court in matters of faith."
  That resolution having been agreed to, the Bishop of Cape Town communicated to the Synod the sentence which he proposed to pass on Dr. Colenso. That sentence met with the approval of his colleagues, and the Synod then went on to say that if after being deposed from his see the Bishop of Natal should wish to appeal to the Archbishop of Canterbury, it would, in their opinion, be highly desirable that such appeal should be allowed in the particular case under discussion, which was of a novel character, as well as of great importance. No opinion was, however, expressed by them on the general question of appeal, but it was resolved that if Dr. Colenso presumed to exercise episcopal functions without the reversal of his sentence on appeal to the Archbishop of Canterbury, he would ipso facto be excommunicated, and it would be the duty of the Metropolitan to pronounce, after due notification, such a sentence upon him.
  Now, he would abstain from making the comments which were naturally suggested to his mind by such a proceeding as that which he had just described. A bishop of the Church of England and Ireland appointed by letters patent under the Great Seal, trying as a judge another bishop of the same Church, declared that he was not bound by English statute law, nor by any decision of the Ecclesiastical Courts in this country, and then proceeded to pass judgment in what he distinctly acknowledged that no regard was paid to the interpretations of the law which had for their sanction the authority of those Courts!   He would simply observe on such conduct that it appeared to him to be a repudiation on the part of the Bishop of Cape Town of obligations which he was called upon by every consideration of duty to observe. But be that as it might, sentence was passed on the Bishop of Natal, the right to pass it being recited from the letters patent, and a paragraph inserted which was, in point of fact, utterly untrue. The allegation to which he referred was contained in the following recital in the judgment upon Dr. Colenso:-
  "Whereas at the appointment and consecration of the Right Rev. John William Colenso, Bishop of Natal, the said Bishop of Natal did voluntarily recognize and submit himself to the provisions of the said letters patent, and did accept the said office of Bishop of Natal under the said provisions, and did then solemnly promise due reverence to me and to submit himself to my jurisdiction as Metropolitan."
  Now it appeared to him at first sight to be a most inexplicable statement, but on looking over the documents he had, he thought, been able to find out how it originated. Among the papers which had been put in evidence at the hearing of the case were copies of the letters patent addressed both to the Bishop of Cape Town and the Bishop of Natal, and the letters patent of the latter were represented as bearing date the 23d of November, 1854, instead of the 23d of November, 1853, and were put in, therefore, as having been issued subsequently to those of the former.
  Sir H. CAIRNS. - Dr. Bleek merely says that the pamphlet, which consists of 400 pages, contains a correct account of the trial.
  Mr. James believed there could be no doubt that the mistake which he had mentioned had occurred at the trial. He did not mean to assert that there had been any wilful falsification in the matter, but that a very serious blunder, upon which the whole case for the prosecution had been built up, had been committed, he felt perfectly satisfied. But it was also alleged by the Bishop of Cape Town in his judgment that certain charges against Dr. Colenso had been laid before him, accusing him of having promulgated opinions contravening and subverting the Catholic faith as laid down in the Thirty-nine Articles and the Book of Common Prayer.  The citation, however, did not contain a single statement in support of that allegation. The citation ran thus:-
  "By direction of the Lord Bishop of Cape Town I hereby cite you to appear to answer certain charges of false, strange, and erroneous doctrine and teaching preferred against you, &c. - to wit, writing, printing, and publishing within this province of a certain book, entitled, &c., and also a certain other book, &c., in which you maintain and set forth doctrines, views, and opinions in opposition to, and at variance with, the doctrines and teachings of the Church of England and Ireland, as set forth in the Formularies and Book of Common Prayer.
  The LORD CHANCELLOR. - You are now arguing, Mr. James, with reference to the irregularity of the proceedings which took place at the trial, and the mode in which the act of which you complain has been done; but these things have nothing to do with the question of jurisdiction.
  Mr. JAMES. - I was proceeding to show that the sentence, even if it had been passed by a competent tribunal, was the result of proceedings which were in themselves irregular, and in violation of the ordinary rules and forms observed in the administration of justice.
  The LORD CHANCELLOR. - Do you admit that the Bishop of Cape Town, as Metropolitan, had power to depose the appellant from his see, assuming that all the proceedings at the hearing of the case were regular?
  Mr. JAMES said that that being the opinion of his Lordship, he would proceed to argue the question of jurisdiction at once. In discussing it, the first position he should take up was that the Crown had no power to authorize the Bishop of Cape Town to institute criminal proceedings against the Bishop of Natal, or to pronounce sentence of deposition upon him. In support of this view the learned gentleman quoted several cases, maintaining that it was the clearest possible law that no office for life created under letters patent could be determined except by a scire facias, or a conviction for a criminal offence in a court of competent jurisdiction, and he went on to contend  that if in the case of the Roman Catholic Church  a Roman Catholic Archbishop were to attempt to deprive a suffragan bishop of his see, an appeal would lie to the Pope, and that the Church of England ought not in that respect to be placed in a  worse position by having  denied to its bishops the power of appealing to the Sovereign, who was the supreme authority in the State, when they felt themselves aggrieved  by the action of those placed immediately above them. Had such a case as the present occurred in the Presbyterian Church in the colonies, an appeal would, he might add, lie to the Conference, while a similar right of appeal would be found to exist among the members of every other religious denomination to some properly-constituted tribunal whose authority they acknowledged. The truth was, however, that the Church of England was not in that respect in a worse position than other churches, for according to her constitution, an appeal to the Sovereign, as the supreme visitor and highest authority in all ecclesiastical; corporations.  Indeed, the 25th William and Mary, cap. 20, showed clearly that the King had jurisdiction in every ecclesiastical case, just in the same way as previous to the Reformation it had been exercised by the Pope. The principle for which he argued was distinctly laid down, moreover, in the Act authorizing the constitution of the Courts of Delegates. In illustration of his argument, he would refer to the case pf "Burbeck v. the Bishop of Jamaica," who was appointed by letters patent, with a proviso that there should be an appeal [page 8] under the statute of Henry VIII for a commission of delegates. The legislature of Jamaica passed a local Act giving the bishop of the colony a Jurisdiction in substance the same as a bishop in this country would have, but did not interfere with the final court of appeal. The bishop exercised his jurisdiction in the case of a clergyman in his diocese, and an appeal against his decision was presented. A commission of delegates was thereupon appointed by letters patent.  The delegates were masters of the Judicial Committee, and they held that the proper tribunal to hear the matter was that committee. To the Judicial Committee it was accordingly committed. They reported upon it, and a definitive sentence was given by the King in Council upon it, reversing the decision of the Bishop of Jamaica.
  There was, he might add, a statute - the 24th Henry VIII, chap. 12 - which bore immediately upon the point, and there was also the Act of Elizabeth, which secured the jurisdiction in matters ecclesiastical to the Crown, and which contained a section enabling the Sovereign to create a Court of high commission, which section had been repealed by the 2d of Charles I, leaving the others untouched. In a case cited by Lord Coke the question arose as to the validity of certain proceedings of the Court of High Commission, and it was decided that the power to issue such commission was part of the ancient and undoubted prerogative of the Crown, while it was also declared that the Act of Elizabeth was not a statute introductory of a new law, but declaratory of that which was already in existence.  As an instance of the extent to which the supreme power of the Crown was carried in the direction for which he was contending, he might mention the case of Archbishop Abbott, reported in the second volume of the State Trials, and who, having by some accident killed a man, was subjected to certain canonical disabilities, from which, however, he was exempted by the King acting in his authority as head of the Church.  In the power of visitation possessed by the Crown in the case of ecclesiastical corporations there was, he further maintained, nothing of a character which would show that its jurisdiction was confined to this realm. That power was co-extensive with the dominions of the Sovereign, and applied to all parts of the empire.
  The LORD CHANCELLOR. - Then, I understand your argument to be that the Church of Natal is part of the Church of England, and that the Queen, as head of the latter, has the same authority over both.
  Mr. James said that was in substance the proposition for which he was contending. The Church of England, in effecting a settlement in any of our colonies, took with it all the laws, usages, and jurisdiction of the Church at home so far as they were capable of being exercised within that colony, and it was, he maintained, of the very essence of our Constitution that any jurisdiction whatsoever exercised by the authority given by the Sovereign was open to   appeal. It seemed to him, he might further observe, that the Bishop of Cape Town and the Bishop of Graham's Town had strangely forgotten that they were bishops of the United Church of England and Ireland in the course which they had pursued.  In the case of "Long v. the Bishop of Cape Town," it might fairly be said that an agreement had, to a certain extent, been entered into between the two, inasmuch as Mr. Long had obtained his office from the bishop himself, from whom he had received induction and institution; but Dr. Gray had nothing whatever to do with the appointment of Dr. Colenso, and the truth was that when the latter was appointed to the see of Natal that of Cape Town was actually vacant.
  In the letters patent nominating Dr. Gray his metropolitan bishop, it was no doubt set forth that he should be "subject and subordinate to his authority," but those words did not invest the Bishop of Cape Town with arbitrary power to deprive him of his see without any appeal from his decision. They simply declared that Dr. Colenso should act so far as the limits of his office were concerned under the supervision of his metropolitan, just in the same way as a major in the army was subject and subordinate to a colonel, or a Vice-Chancellor to his official superior occupying a seat on the woolpack.
  The LORD CHANCELLOR. - If the Archbishop of Canterbury can try and sentence one of his suffragan bishops for heresy, does it follow that the Bishop of Cape Town would possess a corresponding authority over the Bishops of Natal and Graham's Town?
  Mr. JAMES would venture to say not. Indeed, part of his case was that the Archbishop of Canterbury possessed no such power as that to which the noble and learned lord referred. As to the Bishop of Natal, it was no part of his contract with the Crown when he received his appointment that he should become a member of the schismatical Church of South Africa, as Dr. Gray would seem to have done in violation of his duty as a member of the Established church. But be that as it might, he thought he would be able to prove that no bishop could be deprived of his see for any offence even in England, except by the Queen exercising authority under a Royal Commission.
  The LORD CHANCELLOR - Do you think it necessary to issue a Royal Commission to try a bishop in the case of heresy, and that the Crown could do it?
Mr. JAMES thought he should be able to prove that that course was in accordance with the established ecclesiastical law of this country. For several centuries the Pope had exercised that jurisdiction, which was afterwards by the Statutes of Henry VIII and Elizabeth declared to be annexed to the Crown, and he found, on referring to a work on the subject written by the Abbe Migne, that it was ever since the 9th century the clearly established doctrine of the Church of Rome that no proceeding having for its object the deprivation of a bishop of his diocese could be carried into effect save by the authority of the Holy See.  In the time of Edward VI, he might add, the bishops were deprived by commission, and in the case of Bishop Bonner, who was afterwards restored in the reign of Queen Mary, two commissions, consisting of the most distinguished men in the country, had been appointed. A similar instance was that of Gardner, Bishop of Winchester, in whose case a Royal Commission was also issued, and who was ultimately deprived of his see. Indeed, the only case which could be said at all to be opposed to the view which he was advocating was that of the Bishop of St. David's, who was charged with simony in the exercise of his episcopal office, and who was proceeded against upon that charge by the Archbishop alone. The Bishop of St. David's, however, objected to the jurisdiction of the Archbishop, who accordingly dealt with the accusation as it came before him and convicted him. From that decision the bishop appealed to the King to issue a Commission of Delegates, and that commission was about to be issued when, finding they were likely to take the same view of his case as the Archbishop had done, he applied to the Court of Queen's Bench for a prohibition to stay the proceedings.  The court refused the application, but the case was taken before the House of Lords on the question of privilege, the bishop being a peer of Parliament. The plea of privilege was, however, finally disallowed, and, taking the case as it stood, he must contend that the decision of the commission, in reference to which the Court of Queen's Bench declined to interfere, must be held to be operative. He was, therefore, quite satisfied to abide by the law as illustrated by the case.
  Lord KINGSDOWN. - What was the case of the Bishop of Clogher?
  Sir R. PHILLIMORE. - He was deprived by the Archbishop of Armagh.
  Mr. JAMES maintained that that was a case in which the Archbishop was acting in his visitorial capacity, and was not analogous to a case like the present, in which the charge was one of erroneous teaching,
  Passing from that point, he referred to the bearing upon the case of the Clergy Discipline Act, which enacts that no criminal proceedings shall be instituted in any ecclesiastical court against a clerk in holy orders in the Church of England or Ireland for any offence which he might have committed, and which Act, he contended, left untouched the Royal Authority of proceeding by commission. Under all those circumstances he felt assured the Court would be of opinion that the Bishop of Natal had established his right to be heard, and if his appeal were granted he would be afforded that opportunity which he desired so much to dissipate, as he had no doubt he would be able to do, those calumnious inventions of the odium theologicum which had exceeded all Christian charity.
  Mr. STEPHEN followed on the same side, and contended that the proceedings of the Bishop of Cape Town might be quashed or reviewed, observing that the Queen had a general judicial power as the fountain of justice to redress a wrong done in any part of her dominions. He cited several cases to show that that power had been exercised under circumstances analogous to the present, one being the case of the justices of the Supreme Court of Bombay, which arose out of a dispute with Sir J. Malcolm, the Governor of the Presidency, who maintained that the Court had no right to issue writs of habeas corpus to certain natives in the neighbourhood of Bombay. One of the judges of the Court thereupon petitioned the Sovereign against the invasion of its rights, committed by Sir J. Malcolm, and the case was submitted to the Privy Council, who decided that upon the whole the Governor was justified in taking the extreme measures which he had adopted.  The next case was one which arose out of two petitions presented by the bailiffs and jurors of Guernsey complaining of certain acts of the Governor of the Island, Major-General W. Napier, as being in violation of its constitution. In that case, also, the course taken by the Governor was upheld after a patient hearing by the Judicial Committee of the Privy Council.  The learned gentleman cited two other instances to show that the right of appeal for which he contended had been distinctly admitted, and was proceeding to deal with the question whether the Bishop of Cape Town possessed the jurisdiction which he claimed for himself, when the adjournment of the Court to half-past 10 o'clock tomorrow took place.

 

Source: The Times, 17 December, 1864


THE CASE OF DR. COLENSO.
JUDICIAL COMMITTEE OF THE PRIVY COUNCIL.
  The hearing of this case was continued yesterday before the Judicial Committee of the Privy Council.
  The members of the Council present were the Lord Chancellor, Lord Cranworth, Lord Kingsdown, Dr. Lushington, and the Master of the Rolls.
  Mr. W. James, of the Chancery Bar, Mr. Fitzjames Stephens, Mr. Westlake, and Mr. E. Charles appeared for the appellant; Sir rf. Phillimore (the Queen's Advocate),Sir H. Cairns, and Mr. Badeley for the respondent.
  Mr. James put in evidence certain documents relating to the case of Dr. Peacock, Bishop of Chichester, from the Rerum Britannicorum Mediiaevi Scriptores, and on which he relied in support of his argument.
  The Queen's Advocate, in resuming his address, said that when the Court rose on the previous day he was about to call their Lordships' attention to the case of "Lucy v. Watson," which, he thought, established two points of considerable importance, - 1, the power of the Archbishop, as Metropolitan, to deprive a bishop of his see, with or without assessors, as he might think fit; 2, that the Metropolitan himself constituted the Court.  The case was to be found reported in several books of authority, but particularly in Raymond; and it would be seen that it was admitted by the counsel for Dr. Watson that an archbishop had the same power over his suffragan bishops as the bishops had over the clergy of their respective dioceses. In that instance sentence of deprivation was pronounced against the Bishop of St. David's by the archbishop, and after a long and careful consideration of the case on repeated occasions the jurisdiction of the archbishop was fully established.  It was also laid down by Chief Justice Holt that the Crown exercised its ecclesiastical jurisdiction through its temporal officers, and it was laid down that the two primates having jurisdiction in their respective provinces might if necessary proceed to exercise it without calling in the assistance of assessors. Another case of considerable importance as bearing upon the question at issue was that of the Dean of York. The Archbishop of York had presentments made to him of certain ecclesiastical offences on the part pf the Dean of York, and having tried those charges finally deprived him for simony. Up to that stage the proceedings were perfectly regular, but it was argued before the Court of Queen's Bench that they should have been taken in the Court of the Archbishop under 13 and 14 Victoria, instead of in his cathedral in his capacity of visitor, and a prohibition was issued against him simply on that ground. He referred to the case of the Dean of York to show that the slightest doubt was not entertained in dealing with it of the validity of the sentence which had been passed in the case of "Lucy v. the Bishop of St. David's," which sentence was pronounced by the archbishop in whose name the whole proceedings ran, and whose assessors were not legal but ecclesiastical. That case, therefore, he thought, clearly established the proposition that it was in the power of the archbishop to deprive, and that the Metropolitan himself constituted the Court.
  Dr. LUSHINGTON. - Was the sentence delivered in the Court of Audience?
  The QUEEN'S ADVOCATE said that did not appear. The citation was to Lambeth. He should not advert to a case which was mentioned in Dr. Doyley's Life of Archbishop Sancroft, by whom it appeared that Dr. Thomas Wood, after he had been created bishop, was suspended for two years for the neglect of his episcopal duties and other improprieties. That case, he contended, strongly corroborated his argument that the Metropolitan himself was the Court, while he was also supported by the case of the Bishop of Clogher, who had been deprived by the Archbishop of Armagh. Some doubt was at the time entertained in reference to the proceedings in that case; but the law officers before whom the matter came give it as their opinion that the see was vacant by the sentence of the archbishop, and that the Crown was entitled to nominate a successor, without the intervention of an Act of Parliament by letters patent, in which the sentence of deprivation should be set forth as the foundation of the new appointment.   He should next proceed to deal with another part of the case on which much stress had been laid.  It was maintained that there was a right of appeal to the Crown in the present instance on the ground that otherwise there would be a lack of justice; but the statute of Henry VIII, which had been relied on, expressly referred to a lack of justice in any ecclesiastical "court" of the realm, and the jurisdiction of the Bishop of Cape Town could not be regarded as that of a court in the proper sense of the word.
  The LORD CHANCELLOR. - Then, you admit that the Bishop of Cape Town had no other right to exercise authority over the Bishop of Natal under the letters patent and also under the contract.
  The QUEEN'S ADVOCATE said he had power to exercise authority over the Bishop of Natal under the letters patent and also under the contract.
  The LORD CHANCELLOR. - Your observation was that the court of Cape Town was not a proper court.
  The QUEEN'S ADVOCATE replied that his argument was that the word "court" was not strictly speaking applicable to the tribunal in which the Bishop of Cape Town had deprived the Bishop of Natal of his see, and which was not touched by the 15th section of the 25th Henry VIII, in which the words were, "For lack of justice in this realm in the case of the court of an archbishop."  But he was brought by the discussion of that point to consideration of the question whether there had been any lack of justice at all in the case which could entitle the Bishop of Natal to appeal to the Crown before he had exhausted the ordinary remedies with which he was furnished by the civil and ecclesiastical law. He maintained that Dr. Colenso had not exhausted the remedies which would bring his petition within the category of those which might be presented on the score of a lack of justice. There was a civil court in Natal, composed, as he was informed of one chief Justice and two puisne Judges, and which was called the Supreme Court.
  The LORD CHANCELLOR. - How could that Court have authority over the Bishop of Cape Town? How could it take cognizance of the deprivation?
  Lord CRANWORTH. - Has the Court of Natal jurisdiction in Cape Town?  - I suppose not.
  The LORD CHANCELLOR. - Suppose the Bishop of Natal had applied for redress to a court of justice in the colony, and that the court had declared that the proceedings instituted before the Metropolitan were null and void, and that the sentence ought not to be permitted to be carried into execution, what would be the effect of that decision?
  The QUJEEN'S ADVOCATE said that was a large question. If the court of Natal acted improperly, an appeal would lie to the Privy Council; but it was urged that it would be inconvenient for the Bishop of Natal to apply to the colonial courts, and that it was his right to appeal directly to the Crown. Now, that statement he disposed of at once by asserting the proposition that a subject must, before he sought redress at the foot of the Throne, exhaust the remedies afforded by the ordinary tribunals of the country. What was the course taken in Mr. Long's case?
  The Lord Chancellor. - Mr. Long was simply deprived of his position as incumbent, and not of his office as presbyter. In the case under discussion, Dr. Colenso had been deprived of his office of bishop.
  The QUEEN'S ADVOCATE said the Bishop of Cape Town merely deprived Dr. Colenso of the power to exercise episcopal function within his province, but had not attempted to deprive him of his character of bishop, any more than to deprive Mr. Long of his orders.
  The LORD CHANCELLOR. - Mr. Long, as incumbent, had certain endowments connected with his office, but the diocese of Natal does not appear to have any temporalities annexed to it.
  The QUEEN'AS ADVOCATE contended that Dr. Colenso might, for instance, appeal to the courts of Natal for the restoration to him of the cathedral church, from the use of which he was debarred by the sentence of his Metropolitan.   But be that as it might, a subject had, he conceived, no right to come to the Crown per saltum on the ground of a lack of justice unless he had exhausted the means of redress which were furnished by the ordinary tribunals. The real question was whether there was a right of appeal at all - at all events, at the present stage of the proceedings; and, in dealing with the question, he should like to draw their Lordships' attention to the letters patent of the Bishop of Cape Town, in which it was expressly set forth that the Archbishop of Canterbury was the person to whom any appeal from his decision would lie. He would, for the sake of argument, assume all that had been said by his learned friend Mr. James about the indefensible right of the subject to address the Crown by way of appeal to be correct; but then we must maintain that it was open to the Crown to appoint the channel through which the appeal should be made, and he had the authority of Lord Brougham on his side when he said that, taking for granted a common-law right of appeal to the Crown, the Crown could point out the direction in which that right should flow. The way, then, in which he would apply the authority to that was, in the letters patent of the Bishop of Cape Town, it was set froth that the right of appeal should, in the first instance, be exercised to the Archbishop of Canterbury.
  The LORD CHANCELLOR. - I do not see how the letters patent can be at all understood as disposing of any case as between the Bishop of Natal and the Bishop of Cape Town.
  The QUEEN'S ADVOCATE then read the following extract from the letters patent:-
  "We will and ordain that the Right Rev. Father in God, Robert Gray, Bishop of the said see of Cape Town, and his successors, the Bishops thereof for the time being shall be and be deemed and taken to be the metropolitan bishops in our colony of the Cape of Good Hope and its dependencies and the Island of St. Helena, subject, nevertheless, to the general superintendence and revision of the Archbishop of Canterbury for the time being, and subordinate to the archiepiscopal see of the province of Canterbury; and we will and ordain that the said Bishops of Graham's Town and Natal respectively shall be suffragan bishops to the said Bishop of Cape Town and his successors.  And we will and grant to the said Bishop of Cape Town and his successors full power and authority, as Metropolitan of the Cape of Good Hope and of the Island of St. Helena, to perform all functions peculiar and appropriate to the office of Metropolitan within the limits of the said sees of Graham's Town and Natal, and to exercise Metropolitan jurisdiction over the bishops of the said sees and their successors, and over all archdeacons, dignitaries, and all other chaplains, ministers, priests, and deacons in holy orders of the United Church of England and Ireland within the limits of the said dioceses."
  Now, he was not on the present occasion contending that the jurisdiction of the Archbishop of Canterbury would be final in the case; nor was he prepared to say that an appeal would not lie from his decision to the Crown, but the words "subject, nevertheless, to the general superintendence of the Archbishop of Canterbury for the time being," clearly showed, he thought, that it was to the Archbishop that the appeal in the first instance lay.  He must add that what had taken place in the synod did not at all affect the case. It had been erroneously stated that he said the Bishop of Cape Town was right in convening that synod. That was a point on which he had pronounced no opinion. He had not stated, nor did he state, whether he thought the proceeding right or wrong, wise or unwise; but he, at the same time, held that it was perfectly competent for the Bishop of Cape Town to meet his brother bishops for the purpose of making such regulations as they might think fit in reference to the Church, and that his so doing would no more affect the validity of his decision in Dr. Colenso's case than if, during the progress of the case of the bishop of St. David's, the Archbishop of Canterbury, sitting with four  bishops as assessors, had consulted the Upper  House of Convocation before he gave judgment.
  The LORD CHANCELLOR wished to know whether the words in the letters patent could be held to authorize the Bishop of Cape Town to hold a court made up of himself and two ecclesiastical assessors.
  The QUEEN'S ADVOCATE was of opinion that they did authorize a court so constituted, but he was not, at the same time, prepared to dispute that it was a wise and prudent step on the part of a bishop to call in the aid of persons with legal training to assist him in hearing the cases which came before him as visitors of colleges did; but then no one would say that the decision of a Metropolitan was invalid because he did not happen to take that course. But it was said that the patents of the Bishop of Cape Town were invalid because the Crown could not grant a coercive power. If that were so, what became of the whole argument, founded upon the ground that there was an appellate jurisdiction to the Judicial Committee of the Privy Council! What was it, if the patents were void, that their Lordships were then assembled to do? Was it meant seriously to argue that a bishop of the English Church might with impunity commit any crime or be guilty of any heresy, and that he was subject to no authority? That could hardly be the case. There must be some authority having the power to deprive him of his see under those circumstances. And what, he should like to know, was that authority? A great portion of the argument of his learned friend, Mr. James, was directed to prove that a bishop could be deprived only by the Crown; but how was the Crown, he would ask, to deprive him? There was no instance of the Sovereign performing such an act personally. It was, however, urged that the Crown might deprive by commission, but then the Crown, he contended, had no power since the abolition of the High Commission, for the words of the Act were "from the first day of August next, no new court shall be created within this realm which may have the like power and authority of the High Commission Court."  The effect of that statute was to place the ecclesiastical law of the country and the administration of it in its ancient footing, and to restore to the bishops and archbishops the authority which they formerly possessed, and no more.
  The LORD CHANCELLOR said the 17th section of the Act 1 of Elizabeth was left untouched by the Act of Charles I., and that that section conferred upon the Crown all the spiritual jurisdiction that had been exercised, whether rightly or wrongly, by any ecclesiastical authority within the realm. Now, it was an historic fact that the Pope assumed authority to issue these commissions, and the authority exercised by the Pope was by enactment given to the Crown.
  The QUEEN'S ADVOCATE maintained that if a commission had been issued by the Pope to try and deprive a bishop in this country, it would have been issued in contravention of the common law of the land. It was true that the Crown resumed its authority at the time of the Reformation, but only to apply it through the legal channels known to the law; and to take that which might have happened in a time of great civil excitement, whether in the case of the Pope or by the Crown, as establishing a precedent to be acted upon in those days was a line of argument which he thought their Lordships would scarcely admit. Since the repeal of the clause in the statute of Elizabeth had, he would ask, any such commissions as those to which he was referring been issued? None; and why had they not been issued in the Bishop of Clogher and the Bishop of St. David's case? Because all the legal authorities in the land were opposed to such a mode of proceeding, and because it was deemed to be incompetent to the Crown to take any such step. It was, however, said that the power to issue those commissions must be vested in the Crown, inasmuch as there would otherwise be no means by which an archbishop could be deprived.
  The LORD CHANCELLOR. - How is it, then, that an archbishop can be deprived?
  The QUEEN'S ADVOCATE conceived it was possible he might be brought before some general council of the Church or some such ecclesiastical authority; but he must altogether decline dealing on the present occasion with that point. He would, however, for the sake of argument, admit that there was no such tribunal, and what was the constitutional reply to those who made that statement?  Was it that the Constitution was to be violated in order that redress might be obtained, or was it not rather that through Parliament a remedy should be sought? For there must, in every case be some last tribunal which was incapable of being assailed or attacked. Thus much he had deemed it his duty to say upon the question of law, but if the case was to be looked upon as one of contract that contract must be taken to be the engagement into which the Bishop of Natal entered when he as admitted into his office of Bishop.  To that office he was appointed on the understanding that he should occupy the same position with regard to the Bishop of Cape Town as a suffragan bishop in the province of Canterbury occupied with regard to the Archbishop. That contract he sealed with a solemn oath of canonical obedience on the 8th of December, 1853, the very day on which the Bishop of Cape Town renewed his letters patent. The nature of the contract, therefore, he contended, was to be found in the patents themselves, and there could be no doubt that the Bishop of Cape Town had acted not only with the spirit, but within the letter of the contract when he exercised metropolitan jurisdiction over his suffragan in Natal.  
  He had now arrived at the close of his argument.  He trusted that throughout his address he had faithfully kept his promise to abstain from anything like personal attack or vituperation. Before he concluded, however, he wished to observe that it was not only the right of the Bishop of Cape Town to investigate and adjudicate upon the alleged heresy of Dr. Colenso, but that it was his most solemn  duty to take that course; and that if owing to any paltry considerations of ephemeral popularity or any despicable regard to what was termed liberality he had abstained from exercising the jurisdiction which he possessed, he would have been as false to the Church  and to the best interests of those over whom he was called upon to preside by the Divine blessing he had been faithful  to the Church over which God had placed him  as well as the law of the land.
  Sir H. CAIRNS followed on the same side. He said that the Bishop of Cape Town had deemed it to be his duty to his Sovereign, and respectful to their Lordships, to appear before them by counsel not to argue the merits of the case under discussion, but, following the precedent set by the Archbishop of Canterbury in the case of Dr. Watson, and by the Bishop of London in Mr. Poole's case, to offer through those who represented him  any aid which it might be in their power to afford in enabling their Lordships to decide upon the point of jurisdiction. It was no part of his duty, nor was it any part of his instructions, to reply to anything which might be uttered against the Bishop of Cape Town in the shape of invective. He had, indeed, heard expressions used by his learned friend, Mr. James, which were somewhat foreign to his nature, for he had spoken of overweening ambition, of reckless disregard of the substance and forms of justice, of theological hatred, and of want of Christian charity on the part of the respondent. Such charges he would not answer; but if ever the merits of the case should be gone into, he felt assured that the Bishop of Cape Town, although he might not be represented by counsel before their Lordships, would have secured to him that measure of respect and consideration which no appellate tribunal more liberally conceded than that which he had the honour of addressing.
  Before he proceeded further, he wished to deal with a few topics which had, he thought, been somewhat unnecessarily introduced into the case, and which, in his opinion, only tended to confuse it. The first of those topics related to the acts or resolutions which were passed by the synod which the Bishop of Cape Town had convened.  These resolutions had, he could not help thinking, been referred to for the purpose of creating prejudice, but although he did not hesitate as an individual to say that he differed from many things which he found in those resolutions, yet he must contend that they were in no way relevant to the question which their Lordships had to decide. There was another point which related to the constitution of the Court before which Dr. Colenso was tried, which had been commented upon by his learned friends on the other side, and on that point he simply thought it necessary to observe that the Court was throughout the Court of the metropolitan bishop, although he concurred in the opinion he should have the aid on such occasion of persons of legal training. That, however, was a matter which lay entirely within the discretion of the Judge. As to the argument that an office created for life could only be taken away by the repeal of the letters patent conferring it, or by a court of record, he could only say that it must refer to letters patent which were absolute in their terms, for no one would contend that letters patent lawfully providing the mode in which an office might be forfeited required that recourse should be had to any other authority for that purpose than that which they themselves contained.  As to the cases that had been cited to show that the Crown had entertained directly petitions complaining of misconduct in the case of governors holding the position of servants of the Crown at will, he should maintain that they had no bearing on the point at issue, because in these cases, the Crown acted upon the principle that it was its duty to remedy the wrong done by its servants, who occupied a position entirely  different from that of a person holding an episcopal office.
  Having disposed of these preliminary matters, he should briefly state to their Lordships the line of argument which he proposed to adopt. The first question with which he would deal was whether the Bishop of Cape Town had jurisdiction to try Dr. Colenso for heresy and to deprive him; the second, whether the Crown had jurisdiction in this matter in its present stage, by way of appeal from the sentence of his metropolitan; the third, whether the Crown had original jurisdiction, visitorial or otherwise. Those three points would, thought, be found to exhaust the case, and would certainly exhaust his argument.
  In discussing the first question, their Lordships would, he thought, admit that he was entitled to assume that the citation and all the other proceedings were regular. That being so, his next step would be to show that there was a difference between coercive and positive and what might be called conventional jurisdiction. In the case of "Long v. the Bishop of Cape Town" it had been decided that there was no positive jurisdiction. Between the time of the issue of the first letters patent to the Bishop of Cape Town and his reappointment in 1853, the colony of Natal had received the right to have a Representative Assembly of its own.  It should also be borne in mind that Natal was altogether distinct from Cape Town, and formed no portion of that colony. Natal was a conquered colony, and the short history of it was that having been occupied by Zulu Caffirs it had been invaded by a large body of Boers, who dissatisfied with the state of affairs at Cape Town, went thither, and, after fighting several pitched battles, took possession of the district. Those Boers were nominally subject to British jurisdiction when they left Cape Town, and they in their turn became so troublesome that troops were despatched from Cape Town to reduce them under British rule and establish a colony of Natal, which was treated as being a conquered territory.  In 1847 the Crown issued letters patent authorizing the Governor and two other persons to form a Legislative Council, but that Council in no respect possessed those powers which had been relied on in the well-known case of Campbell and Hall, nor were the rights of the Crown in any way suspended by its action.
  Dr. Lushington. - I believe you will find that the colony of Natal was founded by settlement in 1824.
  Sir H. Cairns said that it had never been taken notice of as appertaining to the kingdom until after the conquest of the Boers; but in any case the prerogative right of the Queen to make laws for it from time to time was not interfered with. That being so, the Crown, he contended, had authority to make certain provisions in the letters patent in a matter of positive and coercive law.  Those provision not, of course, being in contravention of any imperial law. The first argument, therefore, which he had to advance on the point of jurisdiction was that inasmuch as the Crown n the year 1853 declared that the see of Natal should be subject to the Bishop of Cape Town, in the same manner as a suffragan bishop in the province of Canterbury should be subject to the Archbishop, the Bishop of Natal was thereby placed under a coercive jurisdiction.
  Having said thus much upon that point, he should next deal with the question consensual jurisdiction, which would imply an agreement on the part of the members of a religious body located in any colony to abide by certain regulations. The Conference, for instance, might issue its commands to the Wesleyan body, and although there might be no direct contract in the case, those who joined the body would hold themselves bound to obey particular rules and orders; so in the present instance the command conveyed in the letters patent stating the Bishop of Natal should be subject to the Bishop of Cape town in the same manner as a suffragan bishop in the province of Canterbury was subject to the Archbishop might be regarded as one of those rules, bringing the case under the head of consensual jurisdiction.  Indeed, the whole point seemed to him to narrow itself to the question, - Had the Archbishop of Canterbury the power to deprive his suffragan in a case of heresy? If so, -and what he heard was, he thought, perfectly clear, - it must be admitted that the Bishop of Natal was equally subject to the Bishop of Cape Town.
  The hon. and learned Gentleman then proceeded to advert to the case of the Bishop of St. David's and the Bishop of Clogher in support of his argument, contending that those cases distinctly proved that the Metropolitan was entitled to exercise the power of deprivation. He had not concluded his address when
  The Court adjourned till Monday next.

 

Source: The Times, 20 December, 1864

THE CASE OF DR. COLENSO.

JUDICIAL COMMITTEE OF THE PRIVY COUNCIL.
  The hearing of this case was resumed yesterday before the Judicial Committee of the Privy Council.
  The members of the Council present were the Lord Chancellor, Lord Cranworth, Lord Kingsdown, Dr. Lushington, and the Master of the Rolls.
  Mr. W. M. James, Mr. Fitzjames Stephens, Mr. Westlake and Mr. E. Charles appeared for Dr. Colenso; the Queen's Advocate, Sir H. Cairns, and Mr. Madely for the Bishop of Cape Town.
  Sir H. Cairns resumed his address. He had already stated, towards the close of his observations when their Lordships adjourned on Friday, he had to submit to their notice these three questions as exhaustive of the whole case - first, had the Bishop of Cape Town jurisdiction to try Dr. Colenso for heresy and to deprive him. He put the question in that form because, although the right to try might exist, the sentence might be excessive. Secondly, had the Crown jurisdiction in the case at the present state by way of appeal from the sentence of the metropolitan?  He framed the question thus, because it was not necessary for him to contend that there might not be a stage at which the Crown would have that jurisdiction.  Thirdly, had the Crown original jurisdiction in the matter, visitorial or otherwise.
  In dealing with the first question he thought he had proved to their Lordships that whether Natal was a conquered, as he maintained it was, or a settled colony, the Crown had a right to declare that the see of Natal should be subject to that of Cape Town as a matter of positive and coercive law, so that, without having recourse to the doctrine of contract at all, the letters patent would, according to their proper construction, give the jurisdiction for which he was contending. But then,  supposing that argument not to be conclusive on the point, there still remained the question of consensual jurisdiction, which implied an agreement on the part of the members  of a religious body to abide  by certain regulations laid down by its head and in accordance with the interpretation to be put upon which it seemed to him to be perfectly clear that the Bishop of Natal had, as a matter of contract under the operation of his letters patent, subjected himself to the Bishop of Cape Town in the same manner as a suffragan bishop of the province of Canterbury was subject to the Archbishop of his  diocese.
  The whole point, in fact, seemed to narrow itself to the question, had the Archbishop of Canterbury power to deprive his suffragan for heresy. No case had been produced on the opposite side which proved that the Archbishop had no such power. The cases of Bonner and Gardner, which had been cited, were tried under the 26th of Henry VIII, which had since been repealed, although his learned friend Mr. James assumed the contrary to be the case, while that of Archbishop Abbott was tried under the High Commission Court. In the case of the Bishop of St. David's, he might add, the deprivation was the result of the sentence passed by the Archbishop.   It was, indeed, contended upon the other side that the Crown might appoint a Commission to try a bishop for heresy; but many strange propositions as he had heard advanced at the bar, he had certainly never heard one so unconstitutional as that the Crown could try, for instance, the Bishop of London or the Bishop of Durham for heresy ex mero motu.  It seemed to be forgotten by his learned friends that the power to issue such commissions had been altogether taken away by the act by which the High Court of Commission was abolished. On the first point, then, he a sked their Lordships to draw the conclusion that the Bishop of Cape Town had jurisdiction both coercive and consensual to try Dr. Colenso and to deprive him of his see.
  His second question was - Had the Crown an appellate jurisdiction over the proceedings; and that seemed to him to be a question which must be viewed under two different aspects - first, had the Bishop of Cape Town any jurisdiction at all; second, supposing him to have jurisdiction, had he exercised it improperly? If he had no jurisdiction either coercive or consensual, if there was no Court, no trial, no sentence, if the whole proceeding was utterly null and void, then how, he would ask, could there be any appeal?   It might, however, be suggested that in the present instance harm was done, however void the sentence might be, and that some remedy for the injury inflicted ought to be provided. But such being the state of the case, Dr. Colenso had a clear remedy open to him; he had the power of instituting proceedings such as had been instituted by Mr. Long on the case of "Long v. the Bishop of Cape Town." Those proceedings were in the nature of a double character, or that of convention and reconvention, known to the Roman-Dutch law, in which each side proceeded for a declaration as to the validity of the sentence which had been pronounced. If that course could have been taken, and that the Court before which   the case came found that the sentence had no validity, then an appeal would lie from that decision to Her Majesty in Council, similar to that in the case of Mr. Long, and that would be a regular formal and proper mode of proceeding for the purpose of determining whether there was any jurisdiction on the part of the Bishop of Cape Town to try the Bishop of Natal.
  If, he might add, the Bishop of Natal alleged that the letters patent of his metropolitan were invalid as a grant from the Crown, as being against his own rights as a holder of other instruments of the same kind, then there might be a proceeding by scire facias, in which he would come before the original Courts in this country, and assert the inconsistency with his own rights of the grant of which he complained. But assuming that there was coercive jurisdiction given by the letters patent of the Bishop of Cape Town, then it was, he thought, quite clear that the authority which established that jurisdiction could itself prescribe the channel in which an appeal should flow, always with the qualification that nothing should be done which was in contradiction to the laws of the country. Looking at the patent of the Bishop of Natal, he found that it declared that he was to be subject to the Bishop of Cape Town in the same way as the suffragan bishop of the province of Canterbury was to the Archbishop, and that any appeal from any sentence which he might in his character as metropolitan pass should be "to the Archbishop of Canterbury, who will hear and finally determine the same." Now, a court and a Judex were thus constituted, and incident to the exercise of the authority of that Court was given a right of appeal to the Archbishop of Canterbury. Whether this right of appeal should stop there was another matter.  But then it was said there was an inconsistency between the two letters patent, that those of the Bishop of Cape Town provided that there should be a right of appeal to the archbishop here, while those of the Bishop of Natal stated that he should only occupy  the same position as that in which a suffragan bishop of the province of Canterbury stood towards  his Metropolitan, and yet that while the suffragan bishop in the latter case might appeal directly  from the sentence of the archbishop such a right of appeal was taken away from, Dr. Colenso, at all events, in the first instance. No such variance between the two patents as was implied in that argument, however, existed. The object of the patent granted to the Bishop of Natal was to point out the Judge and court by which he was to be immediately controlled. It was silent as to anything further, and was wholly consistent with any regulation that the Crown might afterwards lay down as to the mode in which an appeal from the case in question should be made. Now, if the Crown possessed the power to establish coercive jurisdiction, it had undoubtedly the power also, as he had before said, to point the direction which an appeal should take; and he was willing to concede to his learned friends on the opposite side that if an appeal in the present instance had been made to the Archbishop of Canterbury they might fairly call in aid the 25th Henry VIII in support of a further appeal to the Crown. In that Act, cap. 19, sec. 4, it was set forth that "for lack of justice in any Court of the Archbishops of our realm it shall be lawful to the party aggrieved to appeal to His Majesty through His Court of Chancery, and that for every such appeal a commission shall be directed to issue in the name of His Highness." He freely contended that no words in the letters patent could interfere with the right of appeal thus provided because otherwise the coercive power to which he had been referring would come in conflict with the statute law of the realm. That statute, however, could be material only in reference to the question of coercive jurisdiction, and could have no bearing on a case in which the jurisdiction which existed was consensual.
  The LORD CHANCELLOR. - Then, your position is that it was intended by the letters patent to bring an appeal from the decision of the Bishop of Cape Town into the regular channels of the ecclesiastical jurisdiction of this realm.
  Sir H. CAIRNS said that that was so, looking upon these letters patent as being of a coercive character. But if he wrongly interpreted the words giving an appeal to the archbishop, and that those words would give a right of appeal to him, not in his Court, but in his individual capacity, then the Act of henry VIII had no operation in the case, and his decision would be final. He would, however, prefer reading the patent as giving an appeal to the Court of the Archbishop, which would turn that appeal into the ordinary channels of ecclesiastical jurisdiction in this country.
  Having thus concluded his observations on his postulate with respect to coercive, he wished to add a few words in reference to consensual jurisdiction. In dealing with that point the consent of the parties to an agreement was that which it was material to consider. The three parties to the contract in the present instance were the Crown, the Bishop of Cape Town, and Dr. Colenso. In the letters patent of Dr. Colenso it was set forth that he should be subject and subordinate to the see of Capetown, in the same manner as a suffragan bishop of the province of Canterbury is to the Archbishop of Canterbury." The date of those letters patent was the 23d of November, 1853; the day on which he took the oath of canonical obedience to the Archbishop of Cape Town was the 8th of December, the same day on which the letters patent of the latter were granted. Now, it was, he maintained, quite clear that all these letters patent constituted one transaction, and that they ought not to be dealt with separately. It was impossible for Dr. Colenso to show that his grant was to be received by itself, without any regard to what the Crown was at the time being advised to do, and had in contemplation. It was true that his patent was dated a few days earlier than that of his Metropolitan, but it simply was a portion of one complete arrangement. If the position of the Bishop of Natal were severed from that of the Bishop of Cape Town, the consequences would be that all the provisions made with respect to the connexion which was to subsist between the two would fall to the ground, because there was no Bishop of Cape Town at the time when Dr. Colenso was appointed to his see.  Every part of the contract, indeed, as between the Crown and the two bishops, would be rendered useless if that view of the case were to prevail.
  It was urged on behalf of Dr. Colenso that he knew nothing of the provisions contained in the letters patent of the Bishop of Natal until after the sentence had been pronounced, and he did not mean to impugn the accuracy of that statement, but there were occasions in the business of life in which it was not open to a man to plead ignorance of certain stipulations. In his own letters patent he had been referred to others which were about to be granted to the Bishop of Cape Town, and he must be taken as abiding by the arrangement which both were intended to carry into effect. He could not adhere to that arrangement in so far as it tended to give him status in the colony, and reprobate it in those respects in which it was opposed to his views. Let him suppose that their Lordships were now dealing with the case as one arising [ex contract??] in a court of common law, would it be competent for Dr. Colenso to say that a contract between him, the Crown, and his Metropolitan was one which was to depend on his letters patent alone? But he would ask their Lordships to look at the matter in more immediate connexion with the position of the Crown, because it was an important matter to see whether the Crown had consented to be the recipient of an appeal under such circumstances as the present. So far as he could see, the Crown by the letters never gave its consent to be the recipient of an appeal direct from the Bishop of Cape Town. That alone which under the doctrine of consensual jurisdiction it undertook to do was to authorize an appeal in the first instance to the Archbishop of Canterbury.  For the purposes of his argument he was willing to suppose that the whole of the proceedings in the case were ultra vires, and that the Bishop of Cape Town possessed no jurisdiction, because in that case no appeal, it was clear, would lie; but, taking it as a case of consensual jurisdiction, he should like to have it determined who the parties to the contract were, and what it was to which they contracted.
  Sir H. CAIRNS replied that if the letters patent were inconsistent with law there was no jurisdiction at all. He was simply assuming that there was consensual jurisdiction, and endeavouring to discover that to which assent was given.
  The LORD CHANCELLOR. - Suppose the Bishop of Natal were to hold a visitation in that colony. And the clergy of the diocese were to say, "You are not our Bishop any longer, "and declined to acknowledge his authority; or suppose the Crown to be desirous of knowing whether the see is now vacant, what course ought to be taken?
  Sir H. CAIRNS said he had already suggested to their Lordships the nature as well as the extent of the appeal which would lie in the case. Assuming the existence of coercive jurisdiction there would be no right of appeal to the Crown at all, while in the event of the jurisdiction being consensual an appeal would lie to the Archbishop of Canterbury; and he ventured to say that until the whole process of appeal open to him was exhausted by Dr. Colenso the clergy of his diocese would have a right to hold the language just mentioned.
  He next came to the question whether the Crown had original jurisdiction in the case, visitorial or otherwise. Any such jurisdiction which the Crown might have possessed under the 26th of Henry VIII no longer existed, because, as he had already stated, that statute had been repealed, while the 17th section of the 1st of Elizabeth did nothing more than affirm, that all jurisdiction must emanate from the Crown, and not from any foreign Power, not by way of original jurisdiction, but flowing from the Crown through the Courts of the realm. That such was the case was manifest from the Act of Charles I abolishing the Court of High Commission, and declaring that no similar commission should or could be issued by the Sovereign.
  It is, however, suggested that the Crown possessed some kind of visitorial jurisdiction.  Visitorial jurisdiction over whom? Was it over the Bishop of Natal? Clearly not, for over him the Crown had appointed the Bishop of Cape Town visitor. Was it over the Bishop of Cape Town? No, for the Crown had said that he should be subject to the jurisdiction of the Archbishop of Canterbury. The Crown could, of course, act as visitor only in default of any other visitor being named, and his learned friends were in reality driven to contend that the Sovereign would proprio vigore have authority to try the Bishop of Natal or the Bishop of Cape Town for heresy; because if the Crown had original jurisdiction it must extend to that length. A proposition so absurd as that, however, he thought their Lordships would not for a moment seriously entertain.
  He had now disposed of the three heads into which he had divided his argument. He had endeavoured in the course of his observations to avoid touching upon topics which were irrelevant to the issue at stake. It was the duty of their Lordships to advise the Crown on the matter which had been submitted to their consideration, and he asked them with confidence to report to Her Majesty that she had in the present instance no original jurisdiction, and that no ground had been laid before them which would justify them in advising her that the petition of the appellant should be entertained.
  Mr. James, on behalf of the Bishop of Natal, replied on the whole case.  He contended, in answer to the argument of Sir H. Cairns, that the letters patent created no consensual jurisdiction. The simple contract entered into was that the persons to whom the letters patent were addressed engaged themselves thereby to obey the laws of the Anglican Church.  As to the statement that the Queen was not the visitor of the bishop of Cape Town or the bishop of Natal, because visitors in their case were specially appointed, he could only say that the concurrent authority of our statutes and textbooks, - in short, the whole language of the law, went to prove that the Sovereign was "the supreme visitor, visitor ordinary, and governor of the Church, to redress and repress all abuses, anomalies, and wrongs."
  The government of Natal, he might add, was established under the 6th and 7thVictoria, chap. 13, and he found, by papers presented to Parliament in 1847, that it was not a conquered but a settled colony. The argument, therefore, of his learned friend, founded on the supposition that it was a conquered colony, was of no weight. He would also observe that the Court by which Dr. Colenso was tried and deprived was not in Natal; that the offence of which he was alleged to be guilty was set forth as having been committed in Cape Town, and not in Natal, and how, therefore, it could be maintained that the Bishop of Cape Town had jurisdiction to proceed in the mode in which he did, he could not understand. Their Lordships would also observe that in the letters patent which were addressed to the Bishop of Cape Town conferring metropolitan authority upon him were these words:-
  "We will and ordain that the said Right Rev. Father in God, Robert Gray, Bishop of the said see of Cape Town, and his successors the bishops thereof for the time being, shall be and be deemed and taken to be the metropolitan bishops in the colony of the Cape of Good Hope and its dependencies, and the Island of St. Helena."
  "And we will and ordain that the Bishops of Graham's Town and Natal respectively shall be suffragan bishops to the said Bishop of Cape Town and his successors; and we will and grant to the said Bishop of Cape Town, as Metropolitan of the Cape of Good Hope and the Island of St. Helena, to perform all functions peculiar and appropriate to the office of metropolitan within the limits of the said see of Graham's Town and Natal."
Now, Natal was not a colony of the Cape of Good Hope, nor was it one of its dependencies, while the jurisdiction which the letters patent gave was one which it was expressly provided should be exercised within the limits mentioned therein.
  The LORD CHANCELLOR. - Suppose it should turn out that there was no legal Bishop of Natal, and that the whole thing was a mere baseless fabric from beginning to end, what is to be done?
  Mr. JAMES said the creation of a bishopric as a corporation sole by the Royal authority in the colonies was as much within the scope of the Royal prerogative as the granting of a title or honour. He would add that the Bishop of Cape Town was no party to the grant which had in November, 1853, been made to Dr. Colenso,; that it was the undoubted rule of our ecclesiastical law that every ecclesiastical corporation should be subject to visitation; that it was competent to the Crown to give visitorial jurisdiction over such corporation to whomsoever it pleased; that if it did not give that power, and to any extent to which it did not give it, visitorial jurisdiction, from the very necessity of the case, remained vested in itself; and that it was one if the  very first principles of ecclesiastical law that when any power of an ecclesiastic was conferred upon an ecclesiastic as ordinary his authority was subject to appeal throughout the various recognized grades of ecclesiastical jurisdiction.  The interpretation of the letters patent, then, was that vistorial power was given to the Bishop of Cape Town over Dr. Colenso in accordance with the English law as to ecclesiastical corporations, which visitorial power he could only explain as the granting of a title or honour. He would add that the Bishop of Cape Town  was no party to the grant which had in November, 1853, been made to Dr. Colenso; that it was the undoubted rule of our ecclesiastical law that every ecclesiastical corporation should be subject to visitation; that it was competent to the Crown to give visitorial jurisdiction over such corporation to whomsoever it pleased; that if it did not give that power, and to any extent to which it did not give it, visitorial jurisdiction , from the very necessity of the case, remained vested in itself; and that it was one of the  very first principles of ecclesiastical law that when any power pf an ecclesiastic was conferred upon an ecclesiastic as ordinary his authority was subject to appeal throughout the various recognized grades of ecclesiastical jurisdiction.  The interpretation of the letters patent, then, was that visitorial power was given to the Bishop of Cape Town over Dr. Colenso in accordance with the English law as to ecclesiastical corporations, which visitorial power he could only exercise within the limits of Natal, and which was subject to appeal from the Bishop of Cape Town to the Sovereign.
  With that in view, he maintained, both the letters patent were consistent. He might also state that Natal was distant by sea 800 miles from Cape Town, and that there existed no communication between them by land except such as lay through wild, unsettled country. That being so, he would ask their Lordships to consider what would be the effect of an appeal to the Archbishop of Canterbury which was contended for. The Archbishop of Canterbury had no jurisdiction over the Bishop of Natal, and could simply exercise a general supervision under the authority of the letters patent. If he had jurisdiction, how, he should like to know, was it to be exercised? Was it in camera or in curia? Was it ex debito justitiae or ex gratia? What were the terms in which the Archbishop of Canterbury had ever accepted the burthen of such a jurisdiction? If he were to pass sentence on the Bishop of Natal, how could that sentence be enforced? Let him suppose that the Bishop of Cape Town were to refuse to obey the orders of the Archbishop of Canterbury, what power had he to compel him to dos o? What authority has he to command his presence in this country?
  But, passing from that point, it had been asserted by his learned friends on the opposite side that the proceedings of the Synod had been introduced into the case simply for the purpose of exciting the prejudice which they were so well calculated to produce. He denied, however, that he had referred to them for any such invidious purpose.  He had noticed them because he thought it but right that their Lordships should be informed that between the hearing of the case before the Metropolitan and the delivery of the judgment the Judge and his assessors had met together and had solemnly resolved that they would not be bound by English law in the sentence they were about to pronounce.
  The LORD CHANCELLOR. - The proceeding may be a very indecent one, but I do not see how it affects the matter before us.
   Mr. JAMES said it was difficult to abstain from commenting on the action of the Synod. He would not, however, after what had fallen from his Lordship, allude to it further, but would proceed to deal with the suggestion that his client ought to have sought for redress in the local Courts of the Colony. Now, that suggestion, he considered, afforded a very capital illustration of the fallacy arising from the use of the same word in two different senses. His client could not appeal to the local Courts in any view if the case as a Court of Appeal from the decision of the Visitor of an Ecclesiastical corporation. He might have applied, not appealed, to the Supreme Court of Natal, and that Court might have determined that the proceedings which took place before the Metropolitan were void, on the ground that the forms of justice had not been observed or that the substance of justice had been violated.  But beyond that, which was only part, and a very small part, of the case, it could not go; it could not enter into the merits of the question. It might proceed by way of certiorari to quash the proceedings, but it was in no sense a Court of Appeal, and had no right to determine on the propriety or impropriety of the sentence, however unjust it might be.
  The LORD CHANCELLOR. - If the sentence absolves the clergy of the diocese of Natal from the obedience due to their diocesan, how could the Court of Natal take cognizance of the matter?
  Mr. JAMES. - There lay the difficulty of the case. Was Dr. Colenso to have recourse to the Courts at Natal or those of Cape Town? If he applied to the Courts in Natal, what jurisdiction over Cape Town could they exercise? If to those in Cape Town, how could they exercise jurisdiction over proceedings affecting only Natal?
  The LORD CHANCELLOR. - Your opponents say that you ought to have applied in the first instance to the local Courts, and that if they refused to redress the wrong of which you complained then you might come here in the regular manner.
   Mr. JAMES said that that course could be taken under those circumstances only on part of the case, and not at all on its merits. He must be permitted to add that it appeared to him somewhat strange that the Bishop of Cape Town, who was at the head of the Church in the colonies, and who stated through his counsel that he appeared before their Lordships for the purpose of aiding them in coming to a right conclusion, should throw impediments as he had done in the way of having the whole question fairly argued, and thus prolonging the existence in Natal of a state of excitement and heartburning which it was desirable should as soon as possible be  brought to an end, and when a lengthened and cumbrous course of litigation in the colonial Courts would tend rather to increase  rather than to obviate.
  He further appealed with confidence to their Lordships to say whether the Bishop of Natal had not taken the only course which was consistent with his duty to the Church and the allegiance which he owed to his Sovereign in bringing his case before a tribunal which could decide upon it once and for all with an authority which no one could gain say? He had, in his opening address, argued that the proper mode of depriving a bishop was by means of a commission appointed by the Sovereign, and that his learned friend, Sir H. Cairns, had denounced as the most unconstitutional proposition which he had ever heard advanced in a court of justice. But his learned friend surely must have forgotten that it was open to the bishop or Archbishop to visit by his commissary; and why there should be any stronger objection to the Queen trying by commission he was at a loss to conceive. How, he would ask, was an archbishop to be tried? How was the Dean of Windsor, holding a Royal peculiar, to be proceeded against?  The answer given to that question by his learned friends was that they must be tried by an ex post facto Act of Parliament, or by some general council which they could not exactly define. Was not the more rational reply that when the Queen created a donative, as in the case of the Bishop of Natal, the proper mode of depriving him was by the exercise of her visitorial power?
  There was, he believed, in the whole history of the Roman Catholic Church, no single instance of a bishop having been deprived by an archbishop until that of "Lucy v. Watson" occurred. Indeed, it was everywhere the clearly established doctrine of the Church that no bishop could be deprived sine auctoritate sanctae sedis. Now, after the Reformation, the Crown of those realms assigned to itself all the authority which had previously been exercised by the Pope, so that that power, which in the case of the latter was necessary to be exercised before a bishop could be deprived, became equally inherent n the Sovereign as Head of the Church.  Starting, then, with the proposition that the Court of the Archbishop was the Court of the Sovereign, that from that Court there lay an appeal to the Crown, and that all such appeals were in their character suspensive -that was to say, that everything remained in statu quo until the appeal was decided - he thought it would be found that even in the case of the Bishop of St. David's a bishop could not be held to be deprived simply by the sentence of his Metropolitan.  The contest in that case was, he might observe, precisely similar that that which was involved in the present instance. The contention of the Bishop of St. David's was that the Archbishop had no power to deprive him, and that he had a right to demand that he should be tried only by the bishops in Convocation. The decision of the House of Lords, however, was, he contended, in favour of the Royal prerogative. According to the argument of his learned friends on the other side, he might add, the Bishop of London was liable to be deprived by the Archbishop of Canterbury in the same way as the Bishop of Cape Town had deprived Dr. Colenso. But how, let him ask, would the Bishop of London in reality be tried? By the Queen's Court administering justice on behalf of the Sovereign, carrying into effect the ecclesiastical laws of the land, with power to compel the attendance of witnesses and to enforce its decisions, and from which a direct and suspensive appeal lay to the Crown. Such was the position in which the Bishop of St. David's was placed, and was it, he would ask, for one moment capable of being maintained that under the words "subject and subordinate, &c.," in the letters patent, now under the consideration of their Lordships, a parallel course had been adopted?  Was it to be said that under the operation of those words a bishop might be tried by another bishop who could not hold a legal court, who had no means of compelling the attendance of witnesses before him, and no power to enforce his sentence?  
  But he did not think it necessary to dwell further on that point, and he should advert but very briefly to those points which remained. His learned friend, Sir H. Cairns, had said that the 26th of Henry VIII had been repealed, and had never been revived; but that statute in substance did nothing more than was effected under the operation of the statute of Elizabeth, which still remained in force, and which provided that the authority which had previously been vested in the Pope should be centred in the Sovereign as supreme visitor of the Church. It was, however, contended that the power thus conferred upon the Crown of issuing commissions was put an end to by the statute abolishing the High Commission Court in the reign of Charles I. Now, in answer to that argument, he would merely say that the High Commission Court was a statutory tribunal only in so far as it related to the infliction of corporal punishment for certain offences. It was a Court which was at once offensive, and tyrannical, but the abuses which were complained of, and which led to its suppression, were not abuses in any ecclesiastical proceeding, but in proceedings to which the punishment of fine and imprisonment applied. The provision, therefore, that no Court like it should be created had nothing to do with the creation of a tribunal relating to cases disciplinae ecclesiastciae, and, as a matter of fact, various commissions had since the days of Charles I been issued by the Crown; while, upon the other hand, his learned friends could not point to a single instance in the history of the Christian Church in which a bishop had been tried and deprived by an archbishop for heresy.
  He therefore submitted to their Lordships that the only authority by which a bishop could be tried for such an offence was by a special commission appointed by the Crown, not ex mero motu, but in the ordinary way, and with the assistance of proper legal advisers.
  "We have," said the learned gentleman in conclusion, "a right, I contend, to come before your Lordships to ask your assistance in this case as a matter affecting the Queen herself, and the relations which exist between Her Majesty and the Bishop of Natal. We have -  I will not say a strict legal right - but, at all events, a claim, to ask Her Majesty, both on public and private grounds, to have those relations ascertained and determined in the most effectual manner. By no other means of proceeding, except by that which Her Majesty in Council may declare and direct, can a satisfactory settlement of this question be attained.
  I venture, therefore, humbly to ask your Lordships to report to Her Majesty that the proceedings which have been taken by the Bishop of Cape Town against the Bishop of Natal are null and void, and that his letters patent remain un-cancelled and in full vigour.  And if your Lordships do not deem it to be consistent with your duty to advise Her Majesty to make a declaration to that effect, we then venture to ask you to advise that such proceedings may be taken as will bring to light the merits of the case, and establish the truth or falsehood of the charges which have been brought against my client. I would further ask your Lordships should you think fit to recommend Her Majesty to hear this appeal, to advise that she should issue such instructions to the Bishop of Cape Town as would secure to Dr. Colenso the same dignity and position pending the inquiry as a suffragan bishop of the province of Canterbury would be entitled to have continued to him under similar circumstances. I venture to make this appeal to you, my Lords, with the utmost confidence.
  Take it as a matter of actual legal jurisdiction we have a right to come to the Queen; take it as a matter of consensual jurisdiction according to the disciple of the Church of England as a Church settled in the colony we have a right to come to Her Majesty as visitor; take it as a question between two officers, patentees of the Crown, placed respectively by Her Majesty in positions of authority and subordination, we have a right to appeal to the Throne. We ask you, my Lords, to address Her Majesty in conformity with the prayer of our petition. We ask you on that part of the case which has been already submitted to you to advise her that the Bishop of Cape Town had no jurisdiction to do that which he has done, whatever authority he may have to proceed in  some other manner; and I ask all this of you, my Lords, in the full confidence that your report to Her Majesty in Council will add one to the many great precedents furnished by English law and English lawyers in all ages, proving that the Royal prerogative is synonymous with justice, and that  in and by and through the common law of England that Royal prerogative is today, as it ever has been, the safeguard and protection of the rights of the subject and of civil and religious liberty against usurping Pope as well as against ambitious prelates; against the tyranny of clerical as well as of lay mobs; and that the protection extends alike through these realms and all Her Majesty's dominions."
  The Lord Chancellor. - We will take this petition into our very careful consideration, and should we hereafter deem it necessary to go into the merits of the case due notice will be given.
  Judgment was accordingly deferred, and their Lordships adjourned.

 

Source: The Times, 21 March 1865

CASE OF THE BISHOP OF NATAL.
The following is the judgment of the Lords of the Judicial Committee of the Privy Council upon the petition of the Lord Bishop of Natal, referred to the Judicial Committee by Herr Majesty's Order in Council of the 18th of June, 1864; delivered the 20th of March, 1865:-
  Present - The Lord Chancellor, Lord Cranworth, Lord Kingsdown, the Dean of the Arches, and the Master of the Rolls.
  The Bishop of Natal and the Bishop of Cape Town, who are the parties to this proceeding, are ecclesiastical persons, who have been created Bishops by the Queen in the exercise of her authority as Sovereign of this realm, and head of the Established Church. These bishops were consecrated under mandate from the Queen by the Archbishop of Canterbury, in the manner prescribed by the law of England. They received and hold their dioceses under grants made by the Crown. Their status, therefore, both ecclesiastical and temporal, must be ascertained and defined by the law of England; and it is plain that their legal existence depends on acts which have no validity or effect except on the basis of the supremacy of the Crown. Further, their respective and relative rights and liabilities must be determined by the principles of English law applied to the construction of the grants to them contained in the letters patent, for they are the creatures of English law, and dependent upon that for their existence, rights, and attributes.  We must treat the parties standing before us as standing on this foundation and on no other.
   The letters patent by which Dr. Gray was appointed Bishop of Cape Town, and also Metropolitan, passed the Great Seal on the 8th of December, 1853. These letters patent recited, among other things, that it had 'been represented to Her Majesty by the Archbishop of Canterbury that the then existing see of diocese of Cape Town was of inconvenient extent, and that for the sue spiritual care and superintendence of the religious interests of the inhabitants thereof, and for the maintenance  of the doctrine and discipline of the United Church of England and Ireland within the colony of the Cape of Good Hope and its dependencies, and the island of St. Helena, it was desirable and expedient that the  same should be divided into three (or more) districts and separate sees or dioceses, to be styled the bishopric of Cape Town, the bishopric of Graham's Town, and the bishopric of Natal - the bishops of the said several sees of Graham's Town and Natal and their successors to be subject and subordinate to the see of Cape Town and to the bishop thereof and his successors, in the same manner as any bishop of any see within the province of Canterbury was under the authority of the archiepiscopal see of that province and the archbishop of the same; and the letters patent contained the following passages:-
  'And we do further will and ordain that the said Right Rev. Father in God, Robert Gray, bishop of the said see of Cape Town, and his successors the  bishops thereof for the time being, shall be, and be deemed and be taken to be, the metropolitan bishop in our colony of the Cape of Good Hope, and its dependencies, and our island of St. Helena., subject nevertheless to the general superintendence and revision of the Archbishop of Canterbury, and we will and ordain that the said Bishops of Graham's Town and Natal respectively shall be suffragan bishops to the said Bishop of Cape Town and his successors. And we will and grant to the said Bishop of Cape Town and his successors full power and authority, as metropolitan of the Cape of Good Hope and of the island of St. Helena, to perform all functions peculiar and appropriate to the office of metropolitan within the limits of the said sees of Graham's Town and Natal, and to exercise metropolitan jurisdiction over the bishops of the said sees and their successors, and over all archdeacons, dignitaries, and all other chaplains, ministers, priests, and deacons in holy orders of the United Church of England and Ireland within the limits of the said dioceses.
  And we do by these presents give and grant unto the said bishop of Cape Town and his successors full power and authority to visit once in five years, or oftener as occasion shall require, as well the  said several bishops and their successors, or all dignitaries and other chaplains, ministers, priests and deacons in holy orders of the United Church of England and Ireland resident in the said dioceses, for correcting and supplying the defects of the said bishops and their successors with all and all manner of visitorial jurisdiction, power, and coercion.
  And we do hereby authorize and empower the said Bishop of Cape Town and his successors to inhibit during any such visitation of the said dioceses the exercise of all or of such part or parts of the ordinary jurisdiction of the said bishops or their successors as to him, the said Bishop of Cape Town, or his successors shall seem expedient, and during the time of such visitation to exercise by himself or themselves, or his or their commissaries, such powers, functions, and jurisdictions in and over the said dioceses as the bishops thereof might have exercised had they not been inhibited from exercising the same.
  And we do further order and declare that if any person against whom a judgment or decree shall be pronounced by the said bishops of their successors, or their commissary or commissaries, shall conceive himself to be aggrieved by such sentence, it shall be lawful for such person to appeal to the said Bishop of Cape Town or his successors, provided such appeal shall be entered within 15 days after such sentence shall have been pronounced.  And we do give and grant to the said Bishop of Cape Town and his successors full power and authority finally to decree and determine the said appeal.
  And we do further will and order that in any case any proceeding shall be instituted against any of the said Bishops of Graham's Town and Natal, when placed under the metropolitan see of Cape Town, such proceedings shall originate and be carried on before the said Bishop of Cape Town, whom we hereby authorize and direct to take cognizance of the same.   *   *   *   And if any party shall conceive himself aggrieved by any judgment, decree, or sentence pronounced by the said Bishop of Cape Town or his successors, either in case of such review or in any cause originally instituted before the said Bishop or his successors, it shall be lawful for the said party to appeal to the said Archbishop of Canterbury or his successors, who shall finally decide and determine the said appeal.
  The letters patent which constituted the see of Natal and appointed the appellant to that see were sealed and bear date on the 23d of November, 1853, 15 days before the grant of the letters patent to the Bishop of Cape Town. The letters patent creating the see of Natal recited the patent of September, 1847, which created the original diocese of Cape Town, and appointed Dr. Gray the bishop thereof, and that he had since resigned the office of Bishop of Cape Town, whereby the said see had become and was then vacant. The patent also recited that it was expedient and desirable that the said dioceses should be divided into three or more districts and separate dioceses, to be styled the bishoprics of Cape Town, Graham's Town, and Natal, the bishops of the said several sees of Graham's Town and Natal to be subject and subordinate to the see of Cape Town and the bishop thereof and his successors, in the same manner as any bishop of any see within the province of Canterbury was under the authority of the archiepiscopal see of that province and the Archbishop of the same; and the letters patent proceeded to erect, found, make, ordain, and constitute the district of Natal to be a distinct and separate bishop's see and diocese to be called the bishopric of Natal. And after appointing Dr. Colenso to be the bishop of the said see, and granting that the said Bishop of Natal and his successors should be a body corporate, the letters patent contained the following passage:-
  And we do further ordain and declare that the said Bishop of Natal and his successors shall be subject and subordinate to the see of Cape Town, and to the Bishop thereof and his successors, in the same manner as any bishop of any see within the province of Canterbury, in our kingdom of England, is under the authority of the archiepiscopal see of that province, and of the Archbishop of the same; and we do hereby further will and ordain that the said John William Colenso, and every Bishop of Natal, shall, within six months after the date of their respective letters patent, take an oath of due obedience to the Bishop of Cape Town for the time being, as his metropolitan, which oath shall and may be ministered unto him by the said Archbishop, or by any persons by him duly appointed or authorized for that purpose.
  The letters patent then proceeded to confer on the Bishop of Natal and his successors episcopal jurisdiction and authority over all rectors, curates, ministers, chaplains, priests and deacons within the diocese, and directed that, if any should conceive himself aggrieved by any judgment or sentence pronounced by the Bishop of Natal or his successors, he should have an appeal to the Bishop of Cape Town, who should finally decide and determine the appeal. Under these letters patent the appellant was consecrated on the 30th of November, 1853, and he took an oath of canonical obedience to the Metropolitan Bishop of Cape Town, which oath was administered to him by the Archbishop of Canterbury, and was in these words:-
  "I, John William Colenso, Doctor in Divinity, appointed bishop of the see and diocese of Natal, do profess and promise all due reverence and obedience to the Metropolitan Bishop of Cape Town and his successors, and to the Metropolitan Church of St. George, Cape Town."
  At this time there was not in reality any metropolitan see at Cape Town, or any bishop thereof, in existence. These several letters patent were not granted in pursuance of any orders or order made by Her Majesty in Council, nor were they made by virtue of any statute of the Imperial Parliament, nor were they confirmed by any Act of the Legislature of the Cape of Good Hope or of the Legislative Council of Natal.  Previous to these letters patent being granted the district of Natal had been erected into a distinct and separate Government; and, by letters patent granted by the Crown in 1847, it was ordained that it should have a Legislative Council which should have power to make such laws and ordinances as might be required for the peace, order, and good government of the district. With respect to the Cape of Good Hope, by letters patent dated the 23d of May, 1850, it was declared and ordained by Her Majesty that there should be within the settlement of the Cape of Good Hope a Parliament, which should be holden by the Governor, and should consist of the governor, a Legislative Council, and a House of Assembly, and that such Parliament should have authority to make laws for the peace, welfare and good government of the settlement.
  In the year 1863 certain charges of heresy and false doctrine were preferred against the appellant before the Bishop of Cape Town as metropolitan, and upon these charges the Bishop of Cape Town, claiming to exercise jurisdiction as metropolitan, did on the 16th day of December, 1863, sentence, adjudge, and decree the Appellant, the Bishop of Natal, to be deprived from his office as such bishop, and be further prohibited from the exercise of any divine office within any part of the metropolitan  province of Cape Town. In pronouncing this decree, the Bishop of Cape Town claimed to exercise jurisdiction as metropolitan by virtue of his letters patent, and of the office thereby conferred on him, and as having thereby acquired legal authority to try and condemn the appellant; and the appellant protested against such assumption of jurisdiction.  The sentence and decree of Dr. Gray as metropolitan has been published and promulgated in the see of Natal, and the clergy of that diocese have been thereby prohibited from yielding obedience to the appellant as Bishop of Natal.
  In this state of things three principal questions arise, and have been argued before us. First, were the letters patent of the 8th of December, 1853, by which Dr. Gray was appointed metropolitan, and a metropolitan see or province was expressed to be created, valid and good in law? Secondly, supposing the ecclesiastical relation of metropolitan and suffragan to have been created, was the grant of coercive authority and jurisdiction expressed by the letters patent to be thereby made to the metropolitan valid and good in law? Thirdly, can the oath of canonical obedience taken by the appellant to the Bishop of Cape Town, and his consent to accept his see as part of the metropolitan province of Cape Town, confer any jurisdiction or authority on the Bishop of Cape Town by which the sentence of deprivation of the Bishopric of Natal can be supported?
  With respect to the first question, we apprehend it to be clear upon principle that after the establishment of an independent Legislature in the settlements of the Cape of Good Hope and Natal there was no power in the Crown by virtue of its prerogative (for these letters patent were not granted under the provision of any statute) to establish a metropolitan see or province, or to create an ecclesiastical corporation whose status, rights, and authority the colony could be required to recognize. 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 t6o command the consecration of a bishop, but it has no power to assign him to 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 or those who bear office in it claim to be recognized by the laws of the colony otherwise than as the members of a voluntary association.
  The course which legislation has taken on the subject is a strong proof of the correctness of these conclusions. In the year 1813 it was deemed expedient to establish a bishopric in the East Indies (then under the government of the East India Company), and although the bishop was appointed and consecrated under the authority of the Crown, yet it was thought necessary to obtain the sanction of the Legislature, and that an Act of Parliament should be passed to give the bishop legal status and authority. Accordingly, by Statute 53d of George III., cap. 185, sec. 49, it was enacted that in case it should please His Majesty by his royal letters patent to erect, found, and constitute one bishopric for the whole of the British territories in the East Indies and parts therein mentioned, a certain salary should be paid to the bishop by the East India Company, and by the 51st and 52nd sections it was enacted that such bishop should have not have or use any jurisdiction, or exercise any episcopal function whatsoever but such as should be limited to him by letters patent, and that it should be lawful for His Majesty by letters patent to grant to such bishop such ecclesiastical jurisdiction and the exercise of such episcopal functions within the East Indies and parts aforesaid as His Majesty should think necessary for administering holy ceremonies, and for the superintendence and good government of the ministers of the Church establishment within the East Indies and parts aforesaid.
  Subsequently, in the year 1833, it was deemed right to found two additional bishoprics - one at Madras, and the other at Bombay, and again an Act of Parliament (3d and 4th William IV., cap. 86) was passed, by the said section of which it was enacted in like manner that the Crown should have power to grant to such bishops within their dioceses ecclesiastical jurisdiction; and it was also enacted and declared that the Bishop of Calcutta should be metropolitan in India, and should have as such  all such jurisdiction as the Crown should by letters patent direct, subject nevertheless to the general superintendence and revision of the Archbishop of Canterbury; and it was provided that the Bishops of Madras and Bombay should be subject to the Bishop of Calcutta as metropolitan, and should take an oath of canonical obedience to him.
  So again when in 1824 a bishop was appointed in Jamaica by letters patent containing clauses similar to those which are found in the letters patent to the present appellant, it was thought necessary that the legal status and authority of the bishop should be confirmed and established by an Act of the colonial Legislature. The consent of the Crown was given to the colonial Act, which would have been an improper thing, as an injury to the Crown's prerogative, unless the law advisers of the Government had been satisfied that the colonial statute was necessary to give full effect to the establishment of the bishopric.
  The conclusion is further confirmed by observing the course of Imperial Legislation on the same subject, - namely, the creation of new bishoprics in England. When four new bishoprics were constituted by Henry VIII., It appears to have been thought necessary, even by that absolute monarch, to have recourse to the authority of Parliament, and the Act that was passed (viz. the 31st of Henry VIII., cap. 9, which is not found in the ordinary edition) is of singular character. After referring to the slothful and ungodly life which had been used among all those which bore the name of religious folk, and reciting that it was thought, therefore, unto the King's Highness most expedient  and necessary that more bishoprics, collegiate and cathedral churches should be established, it was enacted that His Highness should have full power and authority from time to time to declare and nominate by his letters patent, or other writing to be made under his Great Seal, such number of bishops, such number of cities, sees for bishops, cathedral churches, and dioceses by metes and bounds, for the exercise and administration of their episcopal offices and administration as shall appertain, and to endow them with such possessions after such manner, form, and condition as to his most excellent wisdom shall be thought necessary and convenient.  This statute, which was repealed by the 1st and 2d of Philip and Mary, cap. 8, sec. 18, does not appear to have been revived. It is remarkable as granting power to nominate and appoint new bishops, as well as to create new sees and dioceses.   So also in recent times the two new bishoprics of Manchester and Ripon were constituted, and the new bishops received ecclesiastical jurisdiction, under the authority of an Act of Parliament. It is true that it has been the practice for many years to insert in letters patent creating colonial bishops clauses which purport to confer ecclesiastical jurisdiction, but the forms of such letters patent were probably taken  by the official persons who prepared them from the original forms used in the letters patent appointing the East Indian bishops, without adverting to the fact that such last-mentioned letters patent were granted under the provisions of an Act of Parliament.
  We therefore arrive at the conclusion that although in a Crown colony, properly so called, or in cases where the letters patent are made in pursuance of the authority of an Act of Parliament (such, for example, as the Act of the 6th and 7th Victoria, cap. 13), a bishopric may be instituted 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.
  The subject was considered by the Judicial Committee in the case of 'Long v, the Bishop of Cape Town,' and we adhere to the principles which are there laid down.  The same reasoning is of course decisive of the second question, whether any jurisdiction was conferred by the letters patent. Let it be granted or assumed that the letters patent are sufficient in law to confer on Dr. Gray the ecclesiastical status of metropolitan and to create between him and the Bishops of Natal and Graham's Town the personal relation of metropolitan and suffagan as ecclesiastics, yet it is clear that the Crown had no power to confer any jurisdiction or coercive legal authority upon the metropolitan over the suffragan bishops, or over any other person.  It is a settled constitutional principle or rule of law that, although the Crown may by its prerogative establish Courts to proceed according to the common law, yet that it cannot create any new Court to administer any other law, and it is laid down by Lord Coke in the 4th Institute that the erection of a new Court with a new jurisdiction cannot be without an Act of Parliament. It cannot be said that any ecclesiastical tribunal or jurisdiction is required in any colony or settlement where there is no established Church, and in the case of a settled colony the ecclesiastical law of England cannot, for the same reason, be treated as part of the law which the settlers carried with them from the mother country. So much of the letters patent now in question as attempts to confer any coercive legal jurisdiction is also in violation of the law as declared and established by that part of the Act of the 16th Charles II., cap. 11, which remains unrepealed by the 13th Charles II., st. 2, cap. 12. It may be useful to state this in detail. By the 16th and 17th sections of the 1st of Elizabeth, cap. 1, entitled 'An Act for restoring to the Crown the ancient Jurisdiction over the State Ecclesiastical and Spiritual, and abolishing all Foreign Power repugnant to the same,' it was enacted that all usurped and foreign power and authority, spiritual and temporal, should for ever be extinguished within the realm, and that such jurisdictions, privileges, superiorities, and pre-eminences, spiritual and ecclesiastical, as by any spiritual or ecclesiastical power or authority had theretofore been or might lawfully be exercised or used for the visitation of the ecclesiastical state and persons, and for reformation, order, and correction of the same, and of all manner of heresies, schisms, abuses, offences, contempts, and enormities, should forever be united and annexed to the Imperial Crown of this realm. And by the 18th section the Queen was empowered by letters patent to appoint persons to exercise, occupy, use, and execute all manner of spiritual or ecclesiastical jurisdiction within the realms of England and Ireland, or any other the dominions and countries of the Crown. Under this statute the High Commission Court was erected, which was abolished by the 16th of Charles II, cap. 10. By the Act of the 16th of Charles I, cap. 11, the 18th section of the 1st of Elizabeth, cap. 1, was wholly repealed, and by the  4th section  of the  said statute all spiritual and ecclesiastical  persons or judges were forbidden, under severe penalties, to exercise any jurisdiction or coercive legal authority, an enactment which closed all the regular established ecclesiastical tribunals; but, by the 13th Charles II, cap. 12, the ordinary ecclesiastical jurisdiction and authority , as it existed before the year 1639, was with certain savings restored to the archbishops and bishops; and the Act of the 16th Charles II, excepting what concerned the High Commission Court, or the creation of any such like Court by Commission, was repealed, but with a provision that nothing should extend or be construed to revive or give form to the enactments contained in the 18th section of the 1st Elizabeth, cap. 1, which should remain and stand repealed.
  There is, therefore, no power in the Crown to create any new or additional ecclesiastical tribunal or jurisdiction, and the clauses which purport to do so, contained in the letters patent to the appellant and respondent, are simply void in law. No metropolitan or bishop in any colony having legislative institutions can, by virtue of the Crown's letters patent alone, (unless granted under an Act of Parliament, or confirmed by a colonial statute), exercise any coercive jurisdiction, or hold any court or tribunal for that purpose. Pastoral or spiritual authority may be incidental to the office of bishop, but all jurisdiction in the Church, where it can be lawfully conferred, must proceed from the Crown, and be exercised as the law directs, and suspension or privation of office is matter of coercive legal jurisdiction, and not of mere spiritual authority.
  Thirdly - If, then, the Bishop of Cape Town had no jurisdiction by law, did he obtain any by contract or submission on the part of the Bishop of Natal? There is nothing on which such an argument can be attempted to be put, unless it be the oath of canonical obedience taken by the Bishop of Natal to Dr, Gray as metropolitan.  The argument must be that both parties being aware that the Bishop of Cape Town had no jurisdiction or legal authority, as metropolitan, the appellant agreed to give it to him by voluntary submission. But, even if the parties intended to enter into such an agreement (of which, however, we find no trace), it was not legally competent to the Bishop of Natal to give or to the Bishop of Cape Town to accept or exercise any such jurisdiction
There remains one point to be considered. It was contended before us that, if the Bishop of Cape Town had no jurisdiction, his judgment was a nullity, and that no appeal could lie from a nullity to Her Majesty in Council. But this is by no means the consequence of holding that the respondent had no jurisdiction. The Bishop of Cape Town, acting under the authority which the Queen's letters patent purported to give, asserts that he has held a court of justice, and that with certain legal forms he has pronounced a judicial sentence, and that, by such sentence, he has deposed the Bishop of Natal from his office of bishop, and deprived him of his see. He also asserts that the sentence having been published in the diocese of Natal, the clergy and inhabitants of that diocese are thereby deprived of all episcopal superintendence. Whether these proceedings have the effect which is attributed to them by the Bishop of Cape Town, is a question of the greatest importance, and one which we feel bound to decide. We have already shown that there was no power to confer any jurisdiction on the respondent as metropolitan. The attempt to give appellate jurisdiction to the Archbishop of Canterbury is equally void. This important question can be decided only by the Sovereign as head of the Established Church, and depositary of the ultimate appellate jurisdiction. Before the Reformation, in a dispute of this nature between two independent prelates, an appeal would have lain to the Pope; but all appellate authority of the Pop over members of the Established Church is by statute vested in the Crown. It is the settled prerogative of the Crown to receive appeals in all colonial cases, and by the 25th of Henry  VIII., cap. 19 (by which the mode of appeal to the Crown  in ecclesiastical causes is directed), it is by the 4th section enacted that 'for lack of justice at or in any of the courts of the archbishops of this realm, it shall be lawful to the parties grieved to appeal to the King's Majesty in the Court of Chancery, ' an enactment which gave rise to the Commission of Delegates, for which this tribunal is now substituted.  Unless a controversy, such as that which is presented by this appeal and petition, fails to be determined by the ultimate jurisdiction of the Crown, it is plain that there would be a denial of justice, and no remedy for great public inconvenience and mischief. It is right to add, although unnecessary, that by the Act 3d and 4th  of William IV., cap. 42, which constituted this tribunal, Her Majesty has power to refer to the Judicial Committee for hearing or consideration any such other matters whatsoever as Her Majesty shall think fit, and this Committee is thereupon to hear or consider the same, and to advise Her Majesty thereon; and that on the 10th of June, 1864, it was ordered by Her Majesty in Council that the petition and supplemental petition of the appellant should be, and the same were, thereupon referred to this Committee, to hear the same and report their opinion thereon to Her Majesty.
  Their Lordships therefore, will humbly report to Her Majesty their judgment and opinion that the proceedings taken by the Bishop of Cape Town, and the judgment and sentence pronounced by him, against the Bishop of Natal, are null and void in law.

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