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Colonial Cases

Bishop of Cape Town v Bishop of Natal, 1869

[church governance]

Bishop of Cape Town v Bishop of Natal

Judicial Committee of the Privy Council
Source:The Times, 2 July, 1869

(Present - Sir W. Erle, Lord Justice Giffard, Sir J. Colville, Sir J. Napier, and Sir L. Peel.)
  This was an appeal from a judgment and decree of the Supreme Court of the colony in a suit wherein The Right Rev. John William Colenso, in his capacity as Lord Bishop of Natal was plaintiff, and the Right Rev. Robert Gray, of Capetown, in his capacity of Lord Bishop of Capetown, was defendant. The plaintiff, Dr. Colenso, in the suit alleged that on the 19th of March, 1850, the then administration of the Government of the district of Natal granted in freehold to the defendant (Dr. Gray) and his successors in the see of Capetown in trust for the English Church at Pietermaritzburg, a certain piece of ground, to possess the same in perpetuity; that thereafter the defendant, in his capacity as Lord Bishop of Capetown, caused the ground to be taken possession of for the use of the English Church in Natal, and occupied the same until October, 1853, when the defendant resigned the see of Capetown, which was dissolved by Her Majesty, and thereout various sees created; that the newly-created see of Capetown, to which the defendant was appointed, was totally distinct from the former see of Capetown, and entirely excluded the colony of Natal,  and that from the date of his resignation the defendant ceased to hold the property in trust; that by letters patent of Her Majesty, in 1853, the colony of Natal was created into an independent and separate bishopric, an became the successor in office of the defendant in reference to the trust as far as related to the colony of  Natal, and that the defendant continued to keep adverse possession of the ground and the cathedral church known as St. Peter's. The declaration then prayed that the defendant be ejected from possession of the same.
  The case was heard in January, 1867, and the Court gave judgment for the plaintiff in one farthing damages, and ordered that the land and buildings thereon were vested in the plaintiff in his corporate capacity, and his successors as Bishop of Natal. The appellant (Dr. Gray) submitted that the judgment and decree of the Supreme Court were erroneous on three grounds:
  First. Because the respondent was not the successor of the appellant in the see of Capetown under the grant of the 29th of March, 1850, and was not entitled to have the property vested in him as Bishop of Natal.
  Secondly. That the appellant, as trustee in the grant, had not divested himself from such office.
  Thirdly. Because the appellant, as successor of Robert Lord Bishop of Capetown, was trustee of the land and buildings, and the same were vested in him.
The appeal to Her Majesty in Council now came on for argument.
  Sir Roundell Palmer and Mr. Arthur Charles (instructed by Mr. George H. Brooks) appeared for the appellant, the Bishop of Capetown; Mr. Wickens and Mr. Westlake were for Dr. Colenso, the solicitors being Messrs. Shaen and Roscoe.
  Sir Roundell Palmer opened the case, and addressed their Lordships for two hours. He had not concluded at the rising of the Committee.
  The appeal stood over to Monday next to which day the sitting of the Committee was adjourned, as Lord Justice Giffard sits today in Lincoln's-inn.

Source: The Times, 6 July, 1869

(Present - Sir W. Erle, Lord Justice Giffard, Sir J. Colville, Sir J. Napier, and Sir L. Peel.)
  This appeal, mentioned in The Times of Friday, was resumed at the sitting of the Committee, and occupied nearly the whole day. The question was whether Dr. Gray, in his capacity as the Lord Bishop of Capetown, or Dr. Colenso, as Lord Bishop of Natal, was trustee in the grant of land on which St. Peter's Cathedral at Pietermaritzburg had been erected. It was in the cathedral that measures were adopted to prevent Dr. Colenso from officiating, and during the discussions the appeal of the Bishop of Natal before the Judicial Committee was referred to.  Dr. Colenso maintained that the land vested in him as successor to the see, and in the action he had brought the Supreme Court decided in his favour, on which Dr. Gray appealed to Her Majesty in Council.
  Sir Roundell Palmer and Mr. Arthur Charles were heard in support of the appeal, contending that the question at issue was solely one of possession, the respondent alleging that he had an exclusive possession as against Dr. Gray.
  Mr. Wickens (with whom was Mr. Westlake) addressed their Lordships on the part of Dr. Colenso. He submitted that the case resolved itself into a question of trustee and cestui que trust. The effect of the destruction of the corporation by the resignation of the see of Capetown caused the whole to vest in the Crown, to be dealt with as the Crown thought proper, and he urged that the land in question was granted to the respondent as a corporation sole in the character of Bishop of Natal.
  The learned counsel had not concluded when their Lordships proceeded to give judgment in two appeals from the Court of Admiralty.
  The case will be continued and concluded today on the arguments.

Source: The Times, 7 July, 1869

This case was continued, and the arguments were brought to a close.
  The question raised by the appeal was as to a grant of land on which St. Peter's Cathedral at Pietermaritzburg had been erected, and where the Bishop of Natal was interfered with when he attended to officiate. The point was whether the land did not vest in the Bishop of Natal, after the see of Capetown had on a previous occasion resigned the see, and subsequently fresh letters patent were granted.
  Mr. Wickens concluded his address on the part of Bishop Colenso.
  Mr. Westlake followed on the same side, and contended that the Roman Dutch law must govern the case as the only law applicable thereto.
  Mr. Arthur Charles replied.  He submitted that the English law only was applicable to the present case, and in other proceedings, and especially in the case of "The Bishop of Natal v. the Rev. J. Green," decided in the colony, no reference was made to the Roman Dutch law.
  Sir W. Erle announced that their Lordships would consider the case.
  Judgment was accordingly reserved.

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