REMARKABLE TRIALS.

I.

THE CASE OF THE BISHOP OF NATAL.

THE judgment of the Lords of the Judicial Committee of the Privy Council upon the Petition of the Bishop of Natal, referred to the Judicial Committee by Her Majesty's Order in Council of the 10th of June, 1864; was delivered on the 20th of March, 1865 :

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Present. The Lord Chancellor, Lord Cranworth, Lord Kingsdown, the Dean of the Arches, and the Master of the Rolls.

This very important decision, which treats of the whole position, authority, and character of the so-called Church of England in the Colonies, and of the persons who assume to hold office in it, arose out of the proceedings taken by the Bishop of Cape Town, Dr. Gray, for the purpose of depriving the Bishop of Natal, Dr. Colenso, of his episcopal see and jurisdiction, on the ground that his published writings were contrary to the Articles and Formularies of the Church.

Dr. Colenso at the outset protested against the whole proceedings, denied the jurisdiction in hâc re of his Metropolitan, and announced his intention of appealing against any sentence that might be pronounced against him. Notwithstanding his protest, the Bishop of Cape Town claimed to exercise coercive jurisdiction over his suffragan Bishop, by virtue of the letters patent under which the office of Metropolitan Bishop had been conferred upon him by the Crown, whereby it was provided that any proceedings against either of his suffragan Bishops of Graham's Town or Natal should originate and be carried on before the Bishop of Cape Town, with a final appeal to the Archbishop of Canterbury; and accordingly the Bishop of Cape Town proceeded to try the charges of heresy brought against the Bishop of Natal, and, having heard the case, he pronounced a sentence of deposition against the latter, and subsequently prohibited the clergy in the diocese of Natal from yielding obedience to their deposed Bishop. The Bishop of Natal was advised that the exercise of this jurisdiction on the part of the Metropolitan was not only an assumption of power unknown in the history of the Western Church, Catholic or Protestant, but

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that it was plainly at variance with the settled principles of constitutional law as applied to colonies or settlements which have acquired legislative institutions of their own. He accordingly presented a petition of complaint and appeal to the Queen as Sovereign of this realm, and as the head of the Church of England, praying that the letters patent granted to the Bishop of Cape Town, in so far as they purported to create a court of criminal justice within the Colony of Natal, and to give the Archbishop of Canterbury appellate jurisdiction in causes between the Metropolitan of Cape Town and his suffragan Bishops, and in so far as they derogated from the Bishop of Natal's rights under his own letters patent, were of no force or avail in the matters complained of, and that the pretended trial and proceedings before the Bishop of Cape Town, and the sentence pronounced by him, were null and void in law. The petition of complaint and appeal also prayed that, if necessary, the Bishop of Natal might be heard upon the merits of the case, by way of appeal from the sentence of Bishop Gray. This petition of complaint and appeal was presented to the Queen through the Secretary of State for the Colonies, in the spring of 1864, and was referred to the Judicial Committee of the Privy Council to hear the same and report to Her Majesty their opinion thereon. The whole matter was argued in the month of December by counsel for the Bishop of Natal, and also for the Bishop of Cape Town. The case of the latter, as presented by his counsel at the bar, was shortly as follows:-That the letters patent under which the office of Metropolitan Bishop had been conferred upon the Bishop of Cape Town expressly authorized him to exercise coercive jurisdiction over his suffragan Bishops, and that the only appeal from his decision was to the Archbishop of Canterbury; that if such letters patent were insufficient in point of law to confer such jurisdiction, the Bishop of Natal had, by taking the oath of canonical obedience to the Bishop of Cape Town as Metropolitan, submitted himself, as a matter of contract, to the jurisdiction of the latter; and, lastly, that if neither of these positions were sound in point of law, and if, consequently, the proceedings and sentence at Cape Town were a nullity, the Bishop of Natal might disregard them altogether, and that he had no right to come to the Sovereign to ask for a declaration as to their invalidity—that he might defy the sentence, and, if necessary, call upon the civil tribunal at Natal to protect him against the consequences of such sentence.

With these four questions the Judgment deals, furnishing clear and categorical answers to each of them.

"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 on that law for their existence,

rights, and attributes. We must treat the parties 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 or diocese of Cape Town was of inconvenient extent, and that for the due spiritual care and superintendence of the religious interests of the inhabitants there, 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) distinct or 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 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 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. 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 if occasion shall require, as well the said several Bishops and their successors, as 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 if they had not been inhibited from exercising the same. And we do further ordain and declare that if any person

against whom a judgment or decree shall be pronounced by the said Bishops or 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 be entered within fifteen 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 appeals. And we do further will and ordain that in case any proceeding shall be instituted against any of the said Bishops of Graham's Town and Natal, when placed under the said metropolitical 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 23rd of November, 1853, fifteen 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 diocese should be divided into three or more distinct 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 person 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 party should conceive himself aggrieved by any judgment, decree, or sentence pro

nounced 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 to 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 23rd 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 made 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 deposed from his office as such Bishop, and to 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. This sentence and decree of Dr. Gray as Metropolitan has been published and promulgated in the diocese 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 juris. diction or authority on the Bishop of Cape Town by which this sentence of deprivation of the bishopric of Natal can be supported? With respect to the