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X 
 
 SOME ACCOUNT 
 
 OF THK 
 
 LEGAL DEVELOPMENT 
 
 |>P THE 
 
 COLONIAL EPISCOPATE 
 
 BY 
 
 I \ 
 
 LOUD BLACIIFORD 
 
 FOUMKIM.Y UNDKR-SH' EKTAHT OF HTATT KOR THK ( OI.ONIAT, I'K f'AKT M IN i , 
 
 LONDON 
 
 KEGAN PAUL, TRENCai, & CO., 1, PATERNOSTER SQUARE 
 
 1883 
 
\ !•' 
 
 As questions of some intrioacy are contmimlly 
 av'imig respecting the " legul ftfahis of Colonial 
 (■hni'ches of the Angli(;ari Communion, I have 
 thought til at a short history of the recent changes in 
 that sfalus might 1)C useful to some of those whom 
 they coiicern. The following sketch is brief and im- 
 perfect ; but it ha,s the advantage of being compiled 
 
 partly from memory, ])artly from memoranda made 
 on different occasions — by a person who was attached 
 to the .Colonial Department while the most important 
 of these changes were taking place. It was first 
 printed in tlie Guardian newspaper, and is now 
 reprinted with some alterations and corrections, 
 among which, perhaps, the most material is the 
 reference^ to the Colonial case of the Bishop of Natal 
 r. Green in page 21, which had escaped my recollection 
 when the paper was first printed. 
 
 Blachford. 
 
 February 26, 1883. 
 
 
THE LEGAL DEVELOPMENT OF THE 
 COLONIAL EPISCOPATE. 
 
 Before the establi.shinent of aiiy bishopric in the 
 Colonics, tlie Govarnor was spoken of jis " orclin.ary," 
 and hi that oiipacity he collated to benefices (where, 
 ns in tlic AVest Lidies, sueh things existcrl), he 
 {ippointcnl and dismissed Governmont cliai)!ains, and 
 lie exercised so-called ecclesiastical jurisdiction 
 rospeciing the granting of marriage licenses and pro- 
 bates of wills. A certain disciplinary .I'elation to the 
 clergy was su])j)osed to exist in the Bishoj) of LondoJi, 
 and, as 'the ecclesiastical law of England does not 
 extend to tlie Colonies, it appears to have been 
 thought decent that certain moral offences, only 
 cognisable in England by that law, should by local 
 enactments be brought under the jurisdiction of the 
 ordinary courts of justice. In illustration of this state 
 of things, I quote a clause from the Instructions 
 addressed to the Governor of Jamaica on July 15, 
 1778. After directing the Governor not to appoint 
 a clergyman to any benefice without a testimonial 
 from the Bishop of London, to dismiss delinquent 
 incuinlK^nts, and to inquire whetlier any minister 
 preached or administered the sacrament in orthodox 
 chui'ches without being in due Orders, the Instruc- 
 tions proceed as follows : — , 
 
 *' To the end that tlie ecclesiastical jurisdiction of the Lord Bishop 
 of London may take ])lace in that Onv Island so far as con venieutly 
 may he, we tliiiik tit that vou givn all coiinttiuauco aud cncoura^emeut 
 
 B 2 
 
4 
 
 <o till' fXorciHO 'if tlio siMna, (>\«'0]>tin!X only tlifi collnfinfi to l)(Mit>fifM'S, 
 ^ram iii;,' licenses for Mian iii^^fs iuiil iimliiiti's of wIiIk. wliicli we have 
 roHfrvcd <(^ jnii our Governor aii'.l CuriiiiiMiHlrr-iii-Cincf ot iiui*a.ii<l 
 isliuiil for lilt' <ino lioino." , 
 
 And the Inst.niftioiis went on to rrcomni'md the 
 passing ot" laws for the '' restraint nnd jiunisliincnt" 
 of " bliis])iieiny, profanenc-^s, adnltery, fornication, 
 " polvjjamiy, incest, . profaniUioii of the Lord's Day, 
 " swearing', and drimkeimcss." 
 
 Of course, this loose jurisdiction of the Bisliop, 
 in I'egnrd to persons ove!' whom lie had no legal 
 authority, in places whi<'li he could not personally 
 visit, and only exfrcisaLle, "so ikr as conveniently 
 " might he,'" by the '•countenance and enconrageni<.>nt" 
 of the (lovernor, cduw to very little: and eiforts were 
 consequentlv made from time to time hv Colonial 
 Churchmen, at least in North America, to obtain the 
 establishment of loc;d Episcopates. One <>f these, 
 made on behalf of Viroinia, is well known as having; 
 elicited from Sir Robert AValpole a brutal ansAver, 
 perhaps characteristic of the statesmen of the day. And 
 we learn from a memorial hereafter to l)e noticed that, 
 in 17(S3, " tlie clergy of most of the Colonies liad been 
 "soliciting the appointment of Ameriean Lishops, at 
 " different times, for many years past, and the answer 
 "bad ever been that the present time was not api'oper 
 " one, l)nt a more favourable opportiinity must be 
 " waited for." 
 
 Such an opportunity at last occurred. Towards 
 the end of the American \Va^' of Independence, a 
 number of loyalist refugees, mostly members of the 
 Church of England, sought a home in Nova Scotia, 
 where, as in other American Colonies, re])resentative 
 
 if 
 
 f 
 
 i 
 
 fn 
 
i 
 
 institutions had lonj:^ been established, and ^vliere, m 
 17r)8, the English Liturtry had been declared by 
 local enactment to be " the iixc.d form of M'orship." 
 Encouraged probably by this addition to their con- 
 gregations, eighteen Nova Scotian clergymen, on the 
 bih of Miircli, 17cS;i, addressed to Sir Guy Carleton, 
 tlien Governor of New York, and afterwards Lord 
 Dorchester, the memorial abo^'e quoted, in which 
 they prayed, on grounds of religion and justice, that 
 a bishopric might l)e established in their Colony, 
 bir Guy Carleton supported their re(|uest, not only 
 as reasonable, but on grounds of policy, as " greatly 
 " conducive to the i.)ermanent loyalty and future 
 '' tranijuillity of .... a Colony which is chiefly 
 *' to consist of loyal exiles driven from their native 
 " provinces on account of their attachment to the 
 " r»ritish Constitution." The memorialists were at 
 once (that is in a few months) informed that a 
 bishopric would be established, and it was added 
 " the proj^er method of ejecting that establishment 
 " and providing for the JJisliop are now under con- 
 " sideration." 
 
 Tliis consideration could not have been perfunc- 
 toi-ily given, the ease being, on its face, a novel and 
 important one. In point of fact, it was in hand for 
 nearly four years. iU lust, in August, 1787, Letters 
 Patent wer(3 issued, in which Doctors' Commons 
 poured forth on the new Bishop a flood of 
 s})iritual and ecclesiastical authority. The instru- 
 ment, wdiieh was apjn-oved by the Law Officers of 
 * the Crown — Sir W. Wynn, Queen's Advocate, Sir 
 R. P. Arden (afterwards Lord Alvanley), Attorney- 
 
6 
 
 General, an<1 Sir A. Mncdoiiald, Solicitor-General — 
 contain('<l the iuljowin!' ^rant of power: — 
 
 "Wo fli) l»y tliosi' pri'MMits f^ivo to the sai<l (?h;nlt's Iiijrlis ami liis 
 Nnci'cssdi's'" (IjiMii;; of cDiir.so first iluly •'iiisccivifi'd i " full ]iii\vrr nid 
 autlutr'ity t ) i-niit'cr Hk- nnln-n of dca-'oii ajnl priest. \ > coutiriii tiioM- 
 rliiif ari' l)ii]itisi'(i and rcmi' to _\ oil's df discvrtidii. ami to |m rt'iMiu all 
 other runctioiis pfciiliar and ai)|iroi>i'iiiti' In tln' utru'c t^f a Hi^lieji. ' 
 
 Ft thiMi ('iii[>ow(n'eil rli(^ !iisli(t]> to exercise, in 
 person ur hy liis Gon^lli^^ary, spiritiuil iind cecle- 
 siastiefi! jiirisclicli(jn in respect, to iii>n!ntinn ro 
 bcneiiees and to the lieensinu" of citrates- to \isi( the 
 clergy "with all and all manner of jiiristliction, 
 " power, and coercion ecclesiastical ; " to examine 
 witnesses on oath, and to j)nni>h and c>)rrect clerical 
 delinquents accoi'ding to tiieir deinerits hy depri\:i- 
 lion, suspension, or otherwise, :ie»'ording to the 
 canons and hns ecclesiastieid. IVom tin iiislio]) sin 
 appeal was given to the Oro\Mi in (^haneeiy, {o be 
 decided in manner provided hy the Act of ^>h J|. 
 VIII. ''for the Submission of the Clerfiv and 
 " Restraint of Appeals" — /.c, by what is calleil a 
 Court of l^elegates. 
 
 A separate instrument gave the Bishop similar 
 powers in (Quebec, New iirunswick, and Newfound- 
 land. 
 
 At the time when all this fulness <if ecclesiastical 
 authority was conferred on the lUshop, Xova Scotia 
 (as 1 have already observed) hiid been louii' in 
 possession of representative institutions. 
 
 In ITiil the same representative institutions were 
 given to Canada. The Act by which these insti- 
 tutions were established subjected Canadian incum- 
 bencies to *'all rights of institution, and all other 
 
"spli-ituul and eccle>.iMstical jurisdiction an<] autlioritv 
 "which luLVc been," cVc, 'lawfully oraiited by lifs 
 " Majesty's iioyal Letters Patent to the lUsliop of 
 " Nova ISc(jtia." 
 
 The saviii^ir word " lawfully " is ol)servable. It 
 su.cgcsts — but only suo-gcsts — the i)o.s.sibility that 
 rai-iiaineut, while recognishig the Letters I'atent as 
 being iu general a |)r()per exercise of the Crown's 
 po-sver to assign a diocese in iNova Scotia, was not 
 prepared to give any sweej)iiig sane j-m to all the 
 jjarticular pov/ers piu'[)ortiiig to be given to the 
 Episcopate. 
 
 Jn ITl';') (two years alter the grant of represen- 
 tative institution's to Canada) a fresh step was taken. 
 Canada was detached from its dependency on the 
 diocese of Nova Scotia, and was erected into the new 
 diocese of Quebec. 'J'he draft Letters Patent for 
 establishing tliat diocese being referred to the 
 Attorney and Solicitor General, Sir John Scott 
 (afterwards Lord Eldon) and Sir John ]\Iitfbrd 
 (afterwards Lord Ptedesdale), the former, considerin<^ 
 the matter to be one of "purely ecclesiastical con- 
 "stitution," retpiested the assistance of his brother Sir 
 A\illiam Scott (afterwards Lord Stowell), and these 
 gr('at lawyers aj)proved the draft Letters Patent, 
 esiablishing as they did a diocese with the powers 
 above described in a Colony possessing representativ^e 
 institutions. 
 
 The notion evidently prevailing in high quarters 
 was to reproduce as far as possible in the Colony 
 the English State Hierarchy— -to weld together by the 
 exercise of l\o\al i)rerogative an Imperial Church 
 
8 
 
 Establishment — a pervading "Church of England" 
 hound by ties of interest and loyalty to support 
 the Throne from which its authority was derived. 
 On some such view the same Law Ofiicers were 
 desired to report whether the Sovereign could give 
 the new Bishop an ex officio place in the Legislative 
 Council— analogous to the seats of the English 
 Lisi\ops in the House of Lords. Tl- reported that 
 this would not be lawful, but that each Bishoj) might 
 on his appointment be sunnrioned to the Coimcil 
 personally and by name. And this, I believe, for 
 a long time Avas done. 
 
 In 1813 it was determined to erect a bishopric 
 in India, Money was required for its endowment, 
 and it was enacted by Parliament (53 G. III., c. Ibi)^ 
 §49) that " if it shall please his Majesty hy Roval Letters 
 '' Patent," &c., to create a bishopric, the directors 
 should pay him a salary, and (§52) that such eccle- 
 siastical jurisdiction as his Majesty might think 
 necessary for the administration of holy ceremonies 
 and the discipline of the clergy might be granted to 
 him by Letters Patent. Here wo have the first in- 
 dicr.tion of a doubt respecting the power of the Crown 
 to confer ecclesiastical jurisdiction, fhis, however, 
 did not aifect the course of procedure in regard 
 to the Colonies. Probabl}- it was thought, that even 
 in Colonies possessing representative institutions, the 
 ecclesiastical supremacy of the Crown was more potent 
 than in territories governed by the East India Com- 
 pany in terms of their charter.* 
 
 * Tho Jndicial Comiriittoe suggest tliat wliat tiirntHl out to he ilic 
 uuonnstitntiona] grants of power, in the Colonial Office iustruuieutb 
 
 i 
 
In 1819 Parliament was required to legislate 
 rc^specting Colonial clorgy. And in the Acts passed 
 I'or this purpose the siatus and " Episcopal jurisdic- 
 " tion " of the Bishops of jS'o^•a Scotia und Quebec were 
 recognised inferetitially, hut clearly, and witliout the 
 (|ualifying word " lawfully;' which appeared in the 
 Act of 1791. 
 
 The i\x!t of 1811) declared, on the one hand, that 
 no clergyman ordained l)y a Colonial lUsJiop not 
 possesshig "Episcopal jurisdiction" (wh.'itever those 
 words might mean) should, under any circum- 
 stajices, officiate in Endand— the Lefjjislatm^e beino-, 
 apparently, possessed by an a])])rehension that an 
 inferior class of cleruv oi-dained in the Colonv mioht 
 Jmcl tlieu' way to Eiiglish pref(!nnent. Hut another 
 clause provid(.'d that, under cin^tain strini>ent con- 
 duions calculated to secure tin's c(Huitry against an 
 intlux of improper candidates for jn-eferment, ck-rgy 
 ordained by the I'.islio[)S of Quebec and ^'ova Scotia 
 might officiate in England. 
 
 In these two IJishops, therefore, an Episcopal 
 jurisdiction was clearly assumed to exist. 
 
 Alter Xoi-th America came the A\'^est Indies, in 
 respect of wluch tf.e Crown exercised the Siune 
 powers, Avith the same apparent rarliamentary 
 
 recognition. Iji July, 1824, the Sove 
 Letters l*atent, established the bisl 
 
 reign, by 
 bishoprics, defuied the 
 .>ceses, and ap})ointed the Bishops of Jamaica and 
 Barbados, both Colonies possessing representative 
 
 UiO 
 
 isfiiicd in virtno of prerogative, wore clue to an ill-iiifonDod imitat 
 
 •)f the ten 
 
 ion 
 
 s of fho Indian instninienls issued iiiidcr statulo. it will 
 
 bo soon fioin (lit* a\n\\v staloinmt tlwit tlii 
 
 s is \^i(lt> of Mio mark. The 
 
 Miiial grants caiiio nrst. tiio Indian Ht^iliitos ailorward,> 
 
10 
 
 institutions. Here, as in the East Indies, sa!-u-ies 
 were required. These rarlijunent were asked tu v<.)re, 
 and an Aet was passed (i; (Jeo. JV., e. <SS) nvitin^; 
 iinliesitatiij,i4-ly th;it "His Majest), by liis several 
 " Ivoyal Letters Patent, had been f/racioush/ jtlecseii to 
 ^^ direct and appoint t/iat tite hhind of Jamaica, (^V., 
 
 ''■ should he and become a hiskojh'ic And 
 
 " in like manner that the Island of l^arhados, t\:o., 
 
 " should be and become [another] 
 
 " bishopric." A\'it]i this recital the Act went o]i to 
 api)ropriate money for the su])i)ort o^ the bislio[)rics, 
 thus recognised as being already in lawful existence, 
 and for olIut ecclesiastical pur])oses. 
 
 All this time Tory politics were in the ascendant. 
 Lawyers were not. in ueueral likely to obtain ]ji«di 
 places on the Lench unless they held wliat were then 
 considered sound doctrines in regard to the lio\aJ 
 Prerogative. 'J'he High Churchmen of the day 
 we;*c not generally, as at present, those who were 
 zealous for ecclesiastical independence, b\it those 
 who desired to fiJid in tlie Sovereign — and had 
 found in George IlL — a " nursing.falher/' and who 
 were dis]iosed to ex;dt the authority of the Cro\\i!, in 
 the confidence that it woidd always be exerted, 
 whether in England or the Colonies, on their behalf. 
 Whigs and Dissenters ])robably cai'cd little and knew 
 less about the contents of these Letters Patent. And 
 in no quarter, thei'cfore, was there the disposition or 
 opportunity to challenge them. 
 
 But if they had been challenged, it is natural to 
 believe that Lords Eldon, Stowell, Alvanley, and 
 Redesdale, as Judges, would have supported tlie 
 
11 
 
 o[>"niioiis which til eyliut] approved ji.s Attoriieys-Gicncral 
 and (^Lio<?ii's Advocate — that tlie right ot* the Crown to 
 confer these ecclesiastii^al powers \\ouhl have been 
 atfiiniod by tlie then Courts of Luw, and tliat their 
 construetion of the Roval Supremacy wouhl liave 
 become einbodit d hi the\l;LW of the land, to the great 
 enibarrassin(:?nt of Li) teral statesman wlio I'cvolt against 
 Drerooative, and of thr inodei'ti Miifh Church clerurv 
 and laitv' wlio revolt airainst what i-^ called Kra.stialii^ln. 
 
 Dii alitor vtsHin, The decision of this (picstion 
 was rej^erved fu- a later dale, when the constitu- 
 tional lawyei's of the ni.-'eteenth century iia,d taken 
 the place of the j)rerogative LiAsyersof the eighteenth, 
 when tlie progi'ess of Liberal legislation had wholly 
 altered the relation of Church and State in this 
 countiy, and wlien Chur(;hmen in tlie Colonies had 
 lost the advantai!:es and weie l)ei'oniiniT; alive to 
 the disadvauta'ies of their dependence on the civil 
 power in Kugland. 
 
 The lirst faint snadow of reaction was, perhaps, 
 in lS-12. It was desirabk' to tiivide the dioceses an<l 
 reapportion the incomes of thi' IVisiiops of Jamaica 
 and l*arbados. It was certainly necessary to obtain 
 J^arhamentary sanction for the ivajiportioiunent of 
 public money, and it nia.v have occurced to tliC 
 irainers of tlie Act that the lloyai power of dividing 
 dioceses was doidjtful. 
 
 Foi' even supposing, us hitherto had been 
 su]iposed, that the Crown possessed the power of 
 creating acor[»orate body with powers of ecclesiastical 
 jurisdiction over a defined district, it might still be 
 'piestioned whether tlie Crown, without the authority 
 
12 
 
 I 
 ■ 
 
 H 
 
 fi: 
 
 of the Supreme Legislature, could recall what it had 
 thus given, and carve a new diocese out of an old one. 
 This question had not arisen in the case of Quel)ec, 
 wdiich had never had more than a mere provisional 
 dependence on Nova Scotia. But it arose distinctly 
 in the cases of Jamaica and Barbados. Xnd the 
 doubt would be strengthened by observing chat v/hon 
 Henry WU. carved i\ui bishoprics of Ciiester, 
 Gloucester, liristol, and Oxford out of the existing 
 English dioceses, an Act of Parliament was considered 
 necessary. Still more would this be the case when, as 
 in the cases of Jamaica and Barl)ados, the dioceses had 
 already been the subject of ParUamentary legislation, 
 whicli is considered to witlidraw ^^hat it touches 
 from the grasp of the prerogative. At any rate, it 
 was now thought wise not to rely on prerogative, 
 but to give the Crown an express power to divide 
 the dioceses. 
 
 The hint, however, if it was one, was not taken 
 by the Government departments, — the ' oliicial 
 practice remained the same, and the prerogative was 
 exerted on paper without resistance in dividing as 
 ■well as creating dioceses, and in authorising Bi.sliops 
 to exert " all manner of coercion ecclesiastical.'' 
 
 In 1842, however, an active Bishop of Tasmania 
 gave the colonists reason to apprehend tli.at he Avas 
 abo^it to put his powers into force. Their validitv 
 Avas at once cliallenged, particularly the ]>ower of 
 summoning witnesses : and the matter was referred 
 to the Law Oliicers of the Crown, with a re(|uest that 
 they would consider "Avhether any real advantage 
 " was to be anticipated from the introduction into 
 
^ip 
 
 13 
 
 "the Letl'Ts Patent of any provision \^'hatPvor 
 "beyond the do.laration of the Royul pleasure that 
 "anew l.)i^hopric slionld bo created with a speeiHed 
 " titnhir desi<rnation and with a distinct specification 
 " ot the intended se(^, iKklinL'' (ii' that were pro])er) 
 "the nppointnient by name of the first or oriuinal 
 " I)i,sliop," {ind with the observation, perhaps somewhat 
 exa.nr.L^-eratiid. thiit "the l^isliop to wliom such j)atents 
 " had been nvhh'cssed hud soim^times been involved 
 " in _trrave {b'tficulties from re_Li;arding' every \y<irt of 
 " them as really operative and cffectnal, iind from 
 " attemptinii; to reduce every part of tliem into 
 " practice/' 
 
 The Law Otficers — now no Ioniser Tory — 
 withont answerin*^- this question, reported that " Her 
 " \bijesty had no n,uthority by Letters Patent to 
 "create the ec.desiasiicfd jurisdiction i'omphiined ojV 
 
 The Letters Patent were, accordiiin;Iy, as 
 oppoi'iunity offered, sliorii of mucli maixnihccnt 
 pliraseology ; and thei'eafter the Bisliop's [)ower of 
 punishment and correction was reduced to that i^f 
 visiting- ihe clergy, of calling tliein before him, and of 
 inquirijig into their morals and behaviour. Behind 
 this right of in([uiry lay, of course, tlie power of the 
 Governor to dismiss State-paid clergy, and that ol 
 English soci'jti(.vs over clergy deriviiig their incomes 
 from this coimtry. 
 
 Presently this reduced autliority was brought 
 under the notice of a court of law. And in the case 
 of Long V. the lUshop of- Capetowu, the Judicial 
 Committee declared, as was to be expected (24th 
 June, 1863), that the l^ishop's Letters Patent, 
 
 ft; 
 
u 
 
 1 
 
 i ' I 
 
 ili 
 
 " b^ing issueil after Constitational f^overnment had 
 " been tstablisbed In the Capo of Good HojX'. were 
 *' ineJrcH.tual to create a /ii/ jurisdiction, eccli'suisticdl or 
 ^' civil, witliiii the Coloiu', even if it were tlie intention 
 "of the Letters Patent to create such a jurisdiction, 
 ''which they think doul)lfid." 
 
 In point of fact, as will have been seen by this 
 narrative, the franiers of the Letters J*atent intended 
 stndionslv to avoid anv orant of a iin-isdiction v,]iieh 
 they \u\Q\x to be futile, and, I believe, ordy retained a 
 certain luunber of hiL,di-sounding words because some 
 ecclesiastical authorities were anxious for them, con- 
 sideriniT it better to lean on a broken reed than on 
 nothinuf at all. 
 
 But this judgment was important, not only as 
 dest^o^•in^• in self froverned Colonies the idea of an 
 ecclesiastictd discijdino founded on a Crowii grant 
 and discouraging the aifectation of it, but also as 
 furnishing a new and sounder basis for that discipline. 
 Adopting a principle fn intly indicated in the case of 
 the Queen versus Eton College, they laid down that 
 in the eye of the law the basis of Church disci[)line 
 must be voluntary agreement: — 
 
 "Tlic Clnm'li of Eiiii'lniid,'" Uioy say, '• in i)Lico.s whcro tlici'i! is no 
 Ciniroh ostfiblisht'd 1\\ Imw. is in flie K!unt3 .situation witli any otlior 
 voli^inus liudv, iii tki Ix'tfcr tuit in no worso position, au'l tli(> nioinlti'i's 
 may adop^. as the uit'iulH'Vs of any otlicf conininnio]! may ailojjt. rules 
 for enforoinu (lisoii>liiio witliin rlioir liody, Avliich will ln' bindiui^' on 
 10 ('xi)i-(>ss!v or Viv iiin»li<';ition have ass(nitod to tlioin. 
 
 tliosr 
 
 It may 1h> furtJKM' laid down tliat Avhon any roli<rious or otLor 
 lawful association lias not only riirrood in the terms of its union, liut 
 has also «'onstirut(>d a trihnnal to dotorniinc wliotlifv tho ndis of tlio 
 associ.ation have l)oon violated l)v any of its nioiubcrs or not, and what 
 
 shall 1)0 \\w cousiMj 
 
 'lu'cs of such violat 
 
 ion. 
 
 tl 
 
 uni 
 
 tilt' d 
 
 OCISIOn 07 SUCi! 
 
 a tribunal will be bindin:; whon it has acted within tho scope of its 
 autliority, has observed such forms )xs the rules require, if any forms 
 be prcscribiMl, and, if unt, has proceeded in a manner consonant with 
 the principles of justice. 
 
"Ill 8U"h i'iis":J ili<^ triliuiDxl,- ,s(p ('('7istitiUo(l nrc riul in nnj scriso 
 Courts. Tlicy dnivi' no antliority fnun tin* Crown; tlioy liavc no 
 j)ii\vcr of (licir own to enforce tlirir seiileiii-cs ; (licy iinist .M]i|ily for 
 i!i;it |)iir]ios(^ to <lii' Civiii'ts est;il>!isliiil l»y Imw. and mk li Coui'ts will 
 j,'ive I'tVi'Ct to Hieii" (Ic'-isioiis. as tlmy ^ive etlert to tlii> deeisiinis of 
 arliitrafors wliosi* jurisdii-tioti rests n]>on the aufivenieni of tlio iiartie.>-. 
 
 " Tliesf an* (he j)riii«'i|ili'.s u|)o'i wliicii the (Jourts have acted in 
 the di.-p'iti^s uhieli h,\(> ai'isfii ))et\veeii meniliers (d' the same* ri'ligiows 
 body not Ix'ing nn^nd>ers of the (.'hureli id' Ea>;!an(l. . . . To 
 
 tliose principles, which are fonntled in pood sense and jnstioe, and 
 established by the highost aidhority, wo> desire strictly to adhmv." 
 
 Considered from the ecclesiastical poi^t of vie^y, 
 and in relation to tlie Koyal Supremacy, this does not 
 of course nfl'cct the aj)plii'a1iiliry to Colonial and all 
 other (Churches of the 3()th Article, winch is as 
 follows : — 
 
 ''The Qneen'M Majesty hatli the chief jiower in t]ie Realm of 
 En^dand and other of iier DoiuinmnH, nnto whom llieCliicf ( invei-nmeiit 
 of all Estates (tf this Realm, wdiether they l»e Kcclc' iastical or Civil, in 
 all can.ses, doth appertain, and is not, nor onj^ld to be snbjivt to any 
 foreign jurisdiction." 
 
 This doctrine is as true in the Cape of Good Hope 
 as in England — as a])plicable to Indian .Mahometans 
 or Buddhists as to Fjifjlisli Chui'rhmen. The jndo-- 
 inent leaves it intact. But the judirment, as far as it 
 goes, withdraws Colonial Churches fi-om that peculiar 
 "headship" of the Crown which results in this 
 country from cstahlisliment, and is recognised by our 
 old divines as derived to English Sovereigns from the 
 Jewish Kings and Roman Emperors. That ^' head- 
 "ship," with its congc'S (Tel'ire, its Courts of Aj)peal, its 
 control over the proceedings of synods and other 
 attributes of the " o-odlv Princes" of old time, ceases 
 to have any relation to a coutmunlon which liiis 
 no Courts, but is at liberty to constitute its own 
 tribunals of arbitration, which is to be "in the same 
 " situation as any other conununion, neither better 
 *' nor worse," which has none of the emoluments, 
 
r 
 
 16 
 
 I ;i 
 
 m 
 
 cH2:nitioa, or privilo^^cs of a national Instit.ution, and 
 whose rli2lits arc (<- be (Ictcrinined on the prineiplf.'S 
 applicjibli' to iiou-established bodies. 
 
 In point oi" fact, several ('olonial Churclies, actin^i; 
 ]>artly from a sound instinct and partly on sound 
 advice (like that of Sir William ^lartin in JSew 
 Zealand), had been adjustin*^ themselves in advance 
 to thi< state of the law. In some eases by persoi^d 
 contra<'t, in others by local enactments, they wei-e 
 forming themselves into soeieties cogiusable l)y 1;.\\', 
 and ea])able of standing ^^'ithollt the shadowy snjipoi't 
 hitherto supposed to be sjiven by the appearance of 
 Royal authority. The exam})le had been .-let in 
 Canada, Mctoria, New Zealand, South Australia, and 
 the Caj)e of Good llop''. whc-re the 13ishops, ch^riiy, 
 and laiiy, in communion Avith the Church of England, 
 had leually organised themselves, and the exaniplo 
 was rapidly spreading when, in IHi].'), a fresh impidse 
 was given to these movements by the case of the 
 Bisho]) of Natal. 
 
 The opinions of the Law Officers in 1842, and 
 the decision of the flndicial Conunittee in 186^^, are, 
 it will be seen, directly at variance with those of the 
 earlier Law Officers, inchiding Lords Fddon and 
 Stowell, who, in the Colonies of Nova Scotia and 
 Canada, then possessing representative institutions, 
 sanctioned the grant of "all manner of jurisdiction 
 " power and coercion ecclesiastical." But they 
 caimot be pronounced irreconcilable with the Acts of 
 Parliament cited above. For although these appear to 
 recognise the creation of "P^piscopal jurisdiction" in 
 some sense, by Letters Patent in the American and 
 
West Indian Colonies; yet it may well be said tt)at 
 Parliament did not intend under the term "jiiris' 
 "dietion" to rccognl'O the gift of a power to declare 
 and enlbree law, but only the assi^^mient to a 
 lii^liop of a defined sjjhere of Epis('0])al action — a 
 sphere Mitldn which lie was to ordain and confirm, to 
 convene, and admonish clergy and their congregations, 
 and so on. 
 
 But the irrepressible Church of South Africa did 
 not allow matters to rest there. In 18(34-5 the case 
 of the Bishop of Natal was bronght before the 
 Judicial Committee, consisting on lliat occasion of 
 the Chancellor (i.ord AVestbury), Lord C'l'anworth, 
 Lord Kingsdown, the Dean of Arches (Dr. 
 Tjushington), and the Master of the Rolls (Lord 
 liomilly), and it elicited from them a judgment 
 which completed tlie constitutional severance bi^tween 
 the Church of England and her colonial offshoots in 
 the most important Colonies of the Crown, and 
 made it inevitable in the rest. 
 
 The case was that the Bishoj) of Capeto^vn had 
 assumed the power of deposing the l>ishop of Natnl in 
 virtue of certain Metropolitical powers purporting to 
 have been conferred on him by Letters Patent issued 
 after the grant of representative institutions to one or 
 both Colonies. 
 
 The Judicial Committee began by pointing out 
 that both Bishops were consecrated under mandate 
 from the Queen, and received and held their dioceses 
 under Royal grants, and they proceeded thus : — 
 
 " It is plain that their legal oxistonco [tliat of tlm Bishops ■ 
 fleponds on acts which, have no validity or effect except on the basis of 
 the supremacy of the Crown. 
 
 C 
 
 I 
 
r 
 
 !" 
 
 Hi 
 
 .'I 
 
 ::i 
 
 18 
 
 " Furtlior, Oii'ir rnspwtive hikI rdfitivc rights niid li.ibilitu ,s must 
 ho 'It'icriniiicd by tin* pi'iiM'lpIcw nt' Eii};li-'h liiw njiiilifil to tht) con- 
 stnu'fiiHi of ilic tfraiits to llii'iii ciiiiraiiitMl in tln> rictlrrs Pjitcnl, for 
 tlif'V arc llii' rvciiiirrs of Rnvli^li l;i\v and ilc[i(iuli'iit on that law for 
 tlit'ir I'xistcm'n, riglits, iiuil altrilmtos." 
 
 Of course, Ave are all (»{' us crcaturef^, and thoMt 
 of lis will), like Lord Ch.'tncellor WcstLury himself, 
 holil c\\i\ offices art,', in that aspect, creatures of the 
 law. But still to call the Bishops creatures sounds a 
 little uncivil. However, accepting the phrase as a 
 full account of them, the first cjuestion which arose 
 was whether they hnd really been created — that is, 
 whether the (.^rown had the power (not to give them 
 coercive jurisdiction, which is treated se])arately in 
 the judgment, but) to give them any existence at all. 
 This fpiestion — the question of existence — is thus 
 unequivocally stated by the Committee : — 
 
 "Firsi. VVci-o \ho Letters t'atonf of tlic Xih of D.vfndxn-, LSoS, 
 liy wliich Dr. (iray was ni)])ointc(l Mi-tro])(»litan. and a IMctropolitan 
 .see or ]iro\in(>(> was cxju-cssi'il to IxMn'oated, valid and yood in law? 
 
 " VVitli ri'h;])i'ct to Ilii' first (jne^ition. we a[)orclicnd it to !)(> clear, 
 on pvineijile. that after tlio (>stal)ii.'^lnnent of an independent 
 Lefrisl;ifiir(> in tilt? setllenient.s of tli'< Ca])e of Good Hojie and Natal, 
 tli<rc ?'■>(.•? )(( poicer in the, Croirn hij vliinc of itti iircroijative to 
 cstithlixh a Mefi'npoUtan see or province, or to create an cccle.-iidstlcal 
 cor]'nr(i!inu, vJidhc status, rii/hta, and authority the colony could he 
 required to rcnKjaise. 
 
 "After a colony or sctllcnnont has rocoived le'j'islative i list iint ions " 
 [that is, 1 suppose, after the Crown has jiarted with the power of 
 Icpi.slation] "the Crown (subject to the fi])ecial provisions of any Act 
 of Parlianieni 1 stands in the same rt '.ation to that colony or aettloment 
 ns it does in the United Kinti'iloni. 
 
 "It may bo tvae- that the Crown, ns lepil head of the Church, 
 hn;:i a right to command tho consecration of a Bishop ; Intt it has 
 no power to rtHsigii. liini any diocese or give him any sj^lierc of action 
 within tho United Kingdom." 
 
 It is not expressly added — but is evidently left to 
 be inferred as o])vious — that the Royal power of 
 assignment which does not exist in the United 
 Kingdom does not exist in the Colonics — that the 
 
19 
 
 Letters Patent of the two Bishops arc equally null 
 and void, and their stains, ri<]j]its, authority, dioceses, 
 and sphere of action, so far as they are cognisable by 
 law, involved in one common ruin. And later on 
 tliis conclusion is thus explicitly stated by the 
 Committee : — 
 
 " Wo arrivo af the conclusion that. nUlionp;h in a Crown colony, 
 
 proporly so callod a bi><hopric mny he created and 
 
 occlosiastical .iurisdictiou confcrrod by tho solo authority of tlio 
 Crown, yot that tho Lt>ttor3 Patent of tho Ci'own will not have any 
 such (iffoot or o])oration in a colony or sottlomont which is possessed 
 of an indopoudont Lof>;isliituro." 
 
 All this lano-iiiinje must be taken to have been well 
 considered — and it seems, on its face, unambiguous. 
 In Natal, as in the Cape of Good Hope — in respect of 
 diocesan, as in respect to Metropolitical status — in 
 respect to rank and sphere of action, as in respect to 
 jurisdiction — in regard even to the Bishop's right to be 
 considered as an ecclesiastical corporation, it seems that 
 the Letters Patent are invalid and bad at law, and that 
 nothing passes by them to Dr. Gray or Dr. Colenso, 
 except, perhaps, that they may have been created lay 
 (not ecclesiastical) corporations, with power of 
 making contracts, of holding property, and of suing 
 and being sued, and with territorial titles, like those 
 of Dukes and Marquises, but with no more status or 
 authority within Capetown or Natal than a Duke of 
 Devonshire or an Earl of Suffolk in the shires from 
 which they take their designations. 
 
 This judgment, it will be seen, does not only, like 
 
 that in the Long case, dispose of Lords Eldon, 
 
 Stowell, and the other Law Officers of the last 
 
 century, but appears to show that when Parliament 
 
 gave a statutory recognition to the American and 
 
 c 2 
 
20 
 
 ii 
 
 il 1 
 
 West Indian bishoprics, it was ignorant or forgetful 
 of the law of the hind. 
 
 " Appears," I say, because the construction of the 
 language of the Committee, which seems to me 
 inevitable, was disputed subsequently by the Master 
 of the Rolls, and because the Connnittee state (citing 
 the above-mentioned Acts, or some of them) that 
 *' the course which legislation has taken on this 
 " subject is a strong proof of the correctness of 
 " [their] conclusions" — a statement which I have 
 never been quite able to understand. 
 
 It is not, however, necessary that I should under- 
 stand it. It is more material to notice the judgment 
 of the Master of the Rolls, which, it appears to me, has 
 been taken by many persons as virtually reversing 
 that of the Superior Court. 
 
 The question came before Lord Romilly thus : — 
 
 According to the doctrine of the Church of 
 England, Dr. Colenso, having been canonically conse- 
 crated, was a Bishop of the Church with the powers 
 and capacities belonging to that office. But he was 
 made Bishop of Natal not by consecration but by 
 certain Letters Patent — the same which gave Bishop 
 Gray metropolitan authority over him. 
 
 To Dr. Colenso, not as Bishop but as Bishop of 
 ^atal, a certain annual income was payable by certain 
 trustees. 
 
 But as we have seen, the Committee of Privy 
 Council had decided that in Colonies possessing legis- 
 lative institutions and nominatim " in the settlements 
 " of the Cape of Good Hope and Natal there was no 
 " power in the Crown by virtue of its prerogative to 
 
 il 
 
21 
 
 " establish a Metropolitical see or province or to create 
 " an ecclesiastical corporation " whose status^ rights, 
 and authority the Colony could be required to recog- 
 nise. And more specifically still the Committee had 
 declared that in such a Colony the Royal Letters 
 Patent would not have the eifect of creating " a 
 *' bishopric." 
 
 It was therefore natural that the trustees of the 
 fund from which i3ishop Colenso derived his salary 
 should think it their duty to ascertain from a court of 
 law whether he was entitled to receive his Episcopal 
 salary after this apparent demolition of his diocese and 
 of his character as Diocesan Bishop. For the Colonial 
 Church it was rather a cruel question to raise. No 
 doubt anything was better than uncertainty — but 
 still a whole knot of Bishops might be in the same 
 case as Dr. Colenso* and would have been left income- 
 less if judgment had been given against him. 
 Happily this was not the case. Lord Romilly decided 
 that Bishop Colenso was entitled to the emoluments 
 of his bishopric. 
 
 Bishop Colenso's counsel mi/rht have alleged on 
 his behalf that, in assuming Natal to have possessed 
 independent or legislative institutions (or, rather, in 
 assuming that the Crown had parted with its legisla- 
 tive power in that Colony, for that is the real point) ^ 
 the Judicial Committee had simply committed an 
 error in point of fact. And the majority* of the 
 
 
 * The reason why one of the Judges dissented from his colleagues 
 was one wliich, even if sound, could scarcely have been present to the 
 minds of the Judicial Coniuiittee. It was notorious that in 1853 Natal 
 was considered as a Crown Colony — the legislative power being vested 
 in a council of otticials and Crown nominees. But it appears that, in 
 
— L£a" 
 
 ^^im 
 
 22 
 
 Ml 
 
 ' 
 
 f 
 
 Supreme Court of Natal, in the case of the Bishop of 
 Natal V. the Rev. J. Green, held that this was so. 
 They held the creation of the bishopric of Natal 
 unimpeachable, because at the date of that creation 
 Natal was a Crown Colony. But this point was not 
 taken at the trial. The question was argued as if 
 the bishopric of Natal stood on the same footing as 
 that of the Cape of Good Hope, and the grounds on 
 which the case was decided by Lord Koniilly were 
 these. 
 
 The question, he justly pointed out, was one of 
 contract. Dr. Colenso had engaged to go out to 
 Natal in order to perform certain functions. Did 
 the judgment disable him from performing them ? 
 Certainly not : — 
 
 "The Bishop of Cnpetown, the Bishop of Natal, the Bishops of all 
 Colonies similarly circunistaiiced — i.e., having jmcstaljlislicd Icgislatuiv, 
 but having no established Church — can, as regards the minislers and 
 congregations of the Church of England withiji their diocese, t.xevcise 
 ali the powers of a Bishop ; they can ordain, contirni, and consecrate ; 
 they can do more — they can visit, investigate, reprove, suspend, and 
 deprive ; and if, in so doing, they keep w'tliin the due scope of their 
 authority as estalilislied by tlio disci]»line c the Churcli of Jtlngland as 
 by law establisiied, and proceed in the exe. se of that autiiority in a 
 manner consonant witli the principles of ji 4ee, their acts are valid 
 and will bo enforceti by the legal tribunals." 
 
 This is, in a sense, undeniable and material. It 
 is undeniable that if any clergymen have engaged 
 with any Bishop to perform certain functions under 
 his authority, with the liability to be suspended and 
 deprived whenever the law of the Established 
 
 the Letters Patent establishing that council, the usual clause which 
 reserves to the Crown the concurrent, (u- ratlier superior, power to 
 legislate by Order in Council, was ouiittod. If this prerogative power 
 of legislation were thus extinguisiuMl, the prerogative power of creating 
 a diocese wouhl presumably be extinguished witii it. And that this 
 was so was th(> opinion of one of the judges, who, however. c<nicurred 
 on other grounds iu the judgment of his colleagues. 
 
23 
 
 Church of England — (ftr any othc3r law) — would 
 justify such suspension and deprivation, the Colonial 
 Courts would entbrce such a contract. And Bishop 
 Colcnso was in a position to receive such engage- 
 ments from clergy who were desirous of placing 
 themselves under his autliority, and to ordain or 
 confirm those persons v/lio in Natal desired ordina- 
 tion or confirmation from, liim, Andthcso asn|)pears 
 from the narrative portion of Lord Romilly's judg- 
 ment, were the objects for which he was sent out, if, 
 at least, " the Council for Colonial Bishoprics," who 
 provided his salary, had before them the objects 
 ordinarily paramoimt in the minds of Cliristian meiu 
 For what are those objects? 
 
 Keligions, or at least many of them, confer 
 various secondary advantages of a sociid or political 
 kind, appreciable even by those who do not believe in 
 them. But tlie primary object of every religion 
 worthy of the. name — the primary object, that 
 is, in the eyes of those who do so believe in 
 it as to support it — is of a moi'al and spiritual 
 kind. The announced object of Christi;.^ ni ty in 
 ])articidar is the regeneration and salvation of 
 mankind. And the object of Cluistian Churches and 
 Bishops is to furnish certain ministrations which are 
 supposed to be in different degrees valuable for these 
 ends. But mankind is not regenerated or saved by 
 Letters Patent. If Bishop Colenso's Letters Patent 
 were ever so invalid at law, Bishop Colcnso was not 
 less in a position (the question of his doctrinal inca- 
 pacity not being now raised) to perform all religious 
 functions proper to the ofhce of an Anglican Bishop 
 
 
 LSs.,' 
 
24 
 
 1 i 
 
 li, 
 
 Hi! 
 
 'I! ! 
 
 Mi I ! 
 
 Pi 
 
 i l. 
 
 for those who chose to accept his ministrations ; and 
 thus to give them such advantages in rehition to the 
 great objects of Christiatiity as purport to be derivable 
 from the AngHcan doctrine, discipline, sacraments, and 
 ritual. To do this was his engngement, and certainly 
 nothing in the Report of the Judicial Contmittee 
 prevented him from performing it. This, I would 
 submit, ^v'as quite sufficient to justify Lord Romilly's 
 judgment. 
 
 ]^)Ut Lord Romilly, went farther, and considered it 
 necessary to show that Bishop Colenso (in the eye of 
 the law of course) derived his power to perform these 
 functions in ^atal from the Crown. His judgment is 
 an able and learned exjjosition of his own theory of 
 Royal Supremacy, purporting to interpret in some 
 respects the R^'port of the Judicial Connnittee — but 
 certainly stibversive of it in its natural sense. He 
 held, as L«)rds Eldon and Stowell ^vould have held, 
 not only that Cohjnial lUsh^ )ps could in their so-called 
 dioce.-e^i ordahi and conhrm those who presented 
 themselves for ordination and confirmation, and 
 reprove and suspend those who had engaged to 
 submit to rei)roof and suspension, but that they 
 received their authority to do all this from that Royal 
 Frero<-ative ^vhich Lord Westbury seemed to have 
 declared incapable of conferring any ''status" or 
 " sphere of action " cognisable by law. And he con- 
 tended, with leai'iiirg and ingenuity, that, on that 
 basis, the Colonial tril)unals would enforce an eccle- 
 siastical authority which, on that same basis, Lord 
 Westbury had declared the Colony would not be 
 <' recpired to recognise." 
 
25 
 
 It must not be tlioufrht that I suppose myself 
 capable either of reconciling or of pronouncing 
 between these apparently conflicting authorities of 
 the Judicial Committee and of the liolls Court. The 
 Law Officers of the Crown, to whom alone the 
 Colonial Office in its perplexity could resort ror 
 counsel, advised that they were irreconcilable, and 
 that the higher authority, in the natural sense of its 
 words, must be taken to be— indeed that it was in 
 fact— right. They did not dispute the correctness of 
 Lord Rotnilly's decision, but they treated his doctrines 
 as obiter dicta, observing that his explanation of the 
 judgment of the Judicial Conunittee, of which he was 
 only a single member, could not be accepted as an 
 authoritative exposition of that judgment. 
 
 This is the justification of the Colonial Depart- 
 ment for dealing with the Colonial Cluirch on the 
 basis of the Report of the Judicial Conunittee taken 
 in its natural sense—in detiance of what would 
 otherwise have been a cogent authority— the subse- 
 quent judgment of the Roils Court. 
 
 It follovved to considei- wltat was the legal position 
 of these Colonial bishoprics, vie^ v,| in the lio-Ut of 
 this new doctrine of the Judicial Committee. 
 
 The East and West Iiidinii bishoprics, nine in 
 number, were untouched by tlie judgment,'as being 
 established under Act of Parliament. 
 
 The Crown Colonies, ninu in number,* were 
 
 * I include flinong those tl.o biBJioprie of British Columbia, wliidi 
 was ba.lly created in part a* extending to Vancouver's l«land-,)as 
 sesbed of representative institutiona. ^ 
 
2« 
 
 1 : 
 
 
 iintouclicd, because in tlieiu the Crown -was competent 
 to ('"-tablish bis]io[)rics in virtue of its sovereign 
 leuislative authoritv. 
 
 In the remaining tweutj'-three — comprising those 
 of tlic North American, South African, and (with one 
 e.\('e[)tion) the xiusti'aiian coh^nies — the bishoprics 
 were l)ad in their origin, having been created liy 
 Letters IVitent after the grant of representative 
 institutions. lUit in ill teen of these cases the vice of 
 tlieir creation might be thouglit to liavebecn remedied, 
 at L^ast partially, by some Colonial or Imperial 
 statutory recognition. 
 
 Thus in Canada, Victoria, and Tasmania the 
 Church had I'cceived a legal organisation under local 
 statute, the discipline of the f 'hurch being confided to 
 Church asseiiiblles, in whom, in Canada, the appoint- 
 ment to bishoprics was substantially vested. In 
 the Cajjc Colony the bishoprics of Ca[)etown and 
 GrahiUTistown had been recognised bv local Acts, and, 
 in connection with these bishoprics, synods had grown 
 up, deriving their autliority from tlie express or 
 implied concurrence of th<ise who desired to !)e held 
 members of the Church. But I think tluit, exc(>pt 
 perhaps in Canada, the powers gi\-en to Church 
 assemblies did not extend to the subdivision of 
 dioceses occupied under Letters Patent. And as 
 Lord Westl)ury's judgment had deprived the Crown 
 of the power of sulxlivision, no such rearrangement 
 of a diocese was possible so long as it continued to 
 exist under lloyal authority. 
 
 Of the remaining eight dioceses, those of New 
 Zealand and one or two others had devised self- 
 
27 
 
 supporting constitutions, on which they relied for 
 the practical working of their Churches. 
 
 This was the state of fiicts and (assuming the 
 correctness of the Law Officers' opinion) this the 
 state of the law with which the Colonial Minister had 
 to deal. 
 
 With the East and West Indian bishoprics and 
 with the Crown Colonies there was no immediate 
 necessity for interfering. Tiie one class stood on 
 Imperial or local legislation; the other on the 
 sovereign legislative authority which the Crown 
 possesses in Crown Colonies. 
 
 But with regard to the Colonies proper — the 
 great English populations of North America and 
 Australia — it appeared that, while, of course, the 
 practical tie of co-operation, the spiritual tie of 
 communion, the sentimental tie of a common orin-in 
 and the religious ties of like doctrine and similar 
 ritual remained the same, the tie of a common re- 
 lation to the supreme civil power, which, unestablished 
 as they were, had seemed to connect tliem constitu- 
 tionally with the great English Church Establishment, 
 seemed to have finally and completely given way, or 
 never to have existed at all. 
 
 Of course, the old Established Church of England 
 as it existed under the Tudors— a great assemblage of 
 ecclesiastical corporations divided into a definite 
 number of dioceses, covering and confined to the 
 limits of England prop:;r, and each presided over by 
 its Bishop — represented in ecclesiastical matters by 
 its two Convocations, and in civil matters bv its 
 Episcopal peerage— exercising jurisdiction by its 
 
:n 
 
 («l 
 
 28 
 
 
 ecclesiastical courts, and in those courts administering 
 a common ecclesiastical law — this great institution, 
 with its definite outline and legally established juris- 
 diction, was untouched by the decisions of the 
 Judicial Committee. But the Church of England 
 of George III. — the Imperial Church which was to 
 plant not its off hoots, but its members — its very 
 self — wherever English Churchmen acknowledged 
 the sovereignty of the English Crown, was now 
 declared to be a phantom. First came doubts, then 
 decisions — the Crown was declared incapable, first, of 
 conferring the substance, and at last of conferring 
 even the shadow of authority, and the whole 
 parchment structure, viewed as a creature of the 
 State, was swept down like a house of cards. 
 
 What, then, was to be done? And first, ought 
 any attempt to have been made to validate by the 
 authority of Parliament the ill -itimate acts of the 
 Crown ? To this there were several objections. The 
 larger Colonies would certainly have viewed such a 
 proceeding as an infringement of their rights of self- 
 government — and that in a way peculiarly dis- 
 tasteful to them, by giving a pre-eminence, amounting 
 to privilege, to a particular religion. Next, a large 
 class of Churchmen at home and abroad had become 
 alive to the fact that their relation to the English 
 Government, while it gave them in the Colonies 
 neither emolument, nor power, nor organisation, had 
 no inconsiderable effect in obstructing the free action 
 of the Church, in rendering its position invidious, 
 and in putting its members to sleep in reliance on an 
 external support which did not exist. Of course. 
 
 M i 
 
29 
 
 there are always persons who, if they cannot retain 
 the advantages of an expiring system, desire at least 
 to retain its disadvantages. But the more ener- 
 getic opinion of Churchmen was, I think, the other 
 way, and these judgments — ^however distasteful to the 
 Bishop of Capetown — were in many quarters not 
 bewailed as disfranchisement, but hailed as eman- 
 cipation. 
 
 But there was another reason against Parlia- 
 mentary rehabilitation of Letters Patent — that it was 
 impossible. 
 
 We all know the suspicions to which ecclesias- 
 tical legislation is exposed in this age and country — 
 suspicions of ecclesiastical encroachment — suspicions 
 of Parliamentary encroachment — suspicions of prero- 
 gative encroachment — suspicions of Liberal en- 
 croachment — suspicions of Episcopal encroachment — 
 suspicions of judicial encroachment — suspicions of 
 the moral effect of i\n enactment, or of the words in 
 which it is expressed, even when the legal effect is 
 precise and unobjectionable. Few persons who know 
 what the difficulties of such legislation are would 
 have seriously recommended it as practicable in the 
 present case. 
 
 Failing Parliamentary legislation, it was legally 
 impossible, in the eight crucial cases in which the past 
 action of the Crown had been and remained bad, 
 either to persevere in the existing course or to replace 
 it by anything else. The Crown was simply incom- 
 petent to do one or the other. 
 
 In the fifteen cases where the original defect had 
 to some indefinite extent been patched up by Imperial 
 
80 
 
 h ; 
 
 h ' 
 
 h 
 
 or local legislation, the existing formalities had been 
 found the occasions of delay, expense, and incon- 
 venience. They were of no sort of use, and when 
 the principle on which they had been adopted had 
 broken down there was no sort of reason for main- 
 taining them. 
 
 It was determined, therefore, to leave the Colonial 
 Chiu'ches to do for themselves, with or without the 
 assistance of the Colonial Legislatures, what the 
 Crown could not do and would no longer affect to do 
 for them. This decision left the Colonial Churches 
 very nearly in the position of the Episcopal Churches 
 of Scotland, Ireland, or the United States — voluntary 
 religious bodies " in no better but no worse position " 
 than any other religious body — and legally free to 
 determine what should be the nature of their connec- 
 tion with the Church of England (of which, of course, 
 communion is the basis), and what the amount of 
 their similarity with that Church in doctrine and 
 ritual. I believe I am warranted in saying that, in 
 respect of their numbers, prosperity, and internal 
 cohesion, this self-government has been on tlie whole 
 as favourable to the Colonial Churches as it has been 
 to the civil communities of which they are parts. 
 
 In one respect alone the State of England retains 
 a formal control over the consecration of Colonial 
 Bishops. It happens that the English Consecration 
 Service, rendered obligatory in England by the Act 
 of Uniformity, requires the production of the Queen's 
 mandate for consecrating a Bishop. And this is reason- 
 able, for the English Bishops are State functionaries, 
 whose acts have a political significance beyond those 
 
31 
 
 of a Roman Catholic prelate or a Presbvlcrian Mode- 
 rator. Tlic SovercifTiis of Austria or Italy would have 
 a riglit to complain, as of a CovernmcTital act, if the 
 Priiiiale of the Established Church of lingland 
 assumed to send forth into their tei'ritorics a Bi.»hop 
 of Home or of Vienna. Accidentally, the rubric in the 
 Consecration Service provides against this possibility 
 by makino- the cons(^nt of the Crown indispensable to 
 r tlie act of consecration. And the practice was ado])ted, 
 and, I believe, still subsists, of issuino- to the Arch- 
 bishop of Cantorlnuy, when desirous of consecratiiin- 
 a Colonial Tvishop, a document which i'ultils the 
 rubrical condition of a "mandate "--which carefully 
 abstains even from indicating any '-'sphere of action," 
 diocesan or otherwise, but which is -. ipablc of bcino- 
 refused in any case in which the intervention i*f a 
 prelate beai«ing, as it wove, the stamp oi' the Kstablislied 
 Church would be politically, or otherwise, objec- 
 tionable. 
 
 One difficulty remained. An Act of Parliament 
 (59 George III., c. (JO, §4) had provided that (wivh 
 certain immaterial exceptions) no person should be 
 "capable in any way or on any pretence whatever of 
 " at any time Ixdding any jiarsonage or other ecclesi- 
 "astical preferment within his Majesty's donnnions," or 
 " of oiiiciating in any jdace or in any manner as a 
 " minister of the Established Church of England or 
 " Ireland,-' unless he was ordained by a Bishop havino- 
 ecclesiastical. jurisdiction over a defined district. 
 
 Th(} discovery, therefore, that an indeterminate 
 number of Colonial Bishops— indeterminate, that is, 
 without a fresh course of expensive legislation — had 
 
,V2 
 
 li 
 
 §\ 
 
 no " Episcopal jurisdiotion " cofrnisablc hy law, 
 threw un indeferininati- doubt ovor the rights and 
 ininistriitions nj an iiHletcnuiiuitc imiiibtT of 
 coloulally ordaiiiod loru^y *' throiij^liout her Miijosty'.s 
 " dominioRs." Tins, howevor, aWvv souic dcla)- and 
 discussion, vas set riiilif by an Act of farbanierit 
 wiiicli placed colonial and all other Episcopally 
 ordained clerf?v on a footin;^- soinowliat less favi>urable 
 than that already accorded to the Scottisli Episcopalian 
 Church. 
 
 The Act of Uniformity is framed on the assump- 
 tion that, svd)Jcct to iittin;]^ (Uscijdinary or pre- 
 «\autionary recpiircnionts, any valid Episco]>al ordina- 
 tion <rives a capacity for clerical employment. In 
 accoi'dance with this ])rinciple the recent Act places 
 all foreiiiTi and colonial ordinations on Hie same 
 footing, providing oidy that no clergyman having 
 received such ordination shall be admitted in the first 
 instance to English emi^loyment, except at tlie abso- 
 lute discretion of the l>ishop oi' tlie diocese — a 
 discretion as absolute as that which he exercises in 
 the case of his own ordinations. This enables him to 
 exclude all persons Avhose foreign ordination is 
 doubtfid, or who are unsatisfiictory in point of 
 education, doctrine, character, or (it /may even be) 
 of race. Of course, the candidate f<j)r employment 
 has to subscribe the usual clerical testa. 
 
 I have now come to the end of \the subject so 
 far as I have any claim to special knowledge of it. 
 But I should shortly note what has subsequently 
 happened. 
 
 In the self-governing Colonies I apprehend Lord 
 
 ill '• 
 
3a 
 
 A\\-t.Kiiry\s jiulnfrriciit to have so severed the An^ican 
 duuvscs from (he (Miiinh of Engl;ni(l tliut it bocnne 
 n -■ -Tc sluvdily iiiiiccumcy to speak of tlieiiv Jis part' 
 of it. TIk'v :iii.1 tlu- Cliiircli of Kuirljind, with its 
 lAvo Archbishups, its Couvocatiuiis, its Aet of 
 Umformity, and its Vxoyid Supremacy, are alike 
 parrs of a gr(.Mt coiiimuiiioii which has been reeeiitly 
 n.-iinrd l';m-An_uliean ; but (liey nro no more oik.- with 
 the Cliureli of England than arc the Churches of 
 S<otlaiid or Ireland. A vohnitaiy and very siiadowy 
 subordination to tlie Archbishoj) of t'aiiterbirry may 
 eonstitute a euiniection ; but iiotliiuu' in the nature of 
 identity. It became, thei-efore, necessary, as a mere 
 matter of correctness, to speak of them, not as " the 
 " Church of En-land in tlie Coh>jiies," but as 
 " colonial dioceses i]i eomnnmion ^v'lih the Church of 
 " P]ngl;nid." This was what, by the course of events, 
 they lind, as a matte]- of fact, become. 
 
 V>ut the AV'esi Indian bishopries ami those of tic- 
 Crown Colonies rested on legislative foundations to 
 Nvhich tlie Crown was party, and, as being tlius more 
 or less established nuder (-ivil autlun-ity, juight with 
 somewhiit less imin'opriety be spoken of as parts of 
 the mother Establishment. 
 
 Here the English (iovernment intervened. The 
 ju<lieial disintegration hi America and Australia was 
 followed ])y a Governmcjrital disintegration in the East 
 a,nd West Indian Colonies. In self-govermng Colonies, 
 where the European element prevailed, the doctrine 
 of religious equality had very soon established itself; 
 iiml State aid to religion was either refused altogether, 
 or given to ditlerent ()ersuasions ir arithmetical 
 
 D 
 
 I i 
 
31 
 
 [ 
 
 proportion to the nuinbor of their adlKTcTits;. The 
 f]n;:^lish (loveniment ultiiimtcly (IctcrinliKti thut 
 justice, or sound policy, or both re(|uire{l tlio siiino 
 print'iple to])e M]H)liedto non-Europ<'!iii,tliiit is, in fact, 
 to Or mil ('oloiiies. And the endownients of the 
 Bi^liops and clergy havhig, in aecoi'dance with this 
 prlijciple, to be whhdrawn, it followed as a matter of 
 fairness and consistency, that the trappin,i>"s ot' pi'e- 
 eniineuco whicli had proved, and mi^iiht a,!j,"ain prove, 
 so costly and inconvenient should be withdi-awn also. 
 Tliis policy has, 1 l»elieve, for the most pai't, been 
 cai-ried into ellect. The whole (A>loniid rhurch is 
 likely before long to stand on one and the same 
 footing, without aid from the State, but Avith a (!laiia 
 to be rclicNed from any legacy of enifuirrassnient 
 which would prevent them from si lifting for 
 themselves. 
 
 I cannot say that England apoears as yet to have 
 discharged, nor, to say ihe truth, do I see how it can 
 entirely disci large, ail its obligations in relieving the 
 Churches from the embarrassments conse(]Ucnt on all 
 these legal misapprehensions. One instance of this 
 has recently occurred. 
 
 The question whether the Dean of a cathedral is 
 bound to allow his Bishop to preach in it, is in 
 England — or, at least, in some English dioceses — a 
 matter of question. Happily, no English prelate has 
 thought it worth while to trouble the Church by 
 raising it. Unhappily, in the South African Church, 
 it has been otherwise. The Bishop of Grahams- 
 town asserted this right over the Church of St. 
 (leorgc, of which the (so-called) Dean was the 
 
iTi.Miinbent, tl.' henn rosistcd it, and a law-suit was 
 the; n!SLilt. 
 
 Tlio Chui'ch was held by trustees, 'Mbr acdc- 
 " !«u.stlcal ])ur[)08cs Iji couiiectioji with tho Cliurch of 
 " En-liuid." 
 
 And, omitting iniiiiaterial disputes"*, it was con- 
 tendo'J for die Ih-nn that thv. dioceses wlileh had 
 ol•.^•^^i^ed rlioniselvts under rlie jippclliuion of the 
 Soutl, AiVieun Cliurch liad ceased to 1)e " iji eormec- 
 'Mion wiih tlieCliH.TU of En.crlund," and Lliai; he and 
 his Church were acrordin.!-!) beyond their jurisdiction ; 
 and thi. pk*a was declared good by the Judicial 
 Connnitiee. 
 
 In the ordinary sense of the WDrd the "conncc- 
 "tion '' between the Cliurchcs of England and South 
 Africa is close and notorious. It is notorious that the 
 South African dioceses are in conujuinion with the 
 Churcli of England, tluit they hold themselves and are 
 held by her to be part, of cnc large and connected 
 ecclesiastical l)rotherhood, and that their clergy derive 
 their ordinations and much of theii- revenues from the 
 Church of Enghind. It is also the iact that the Articles 
 of Faith and, with a certain power of abridgment and 
 enlargement, the Prayer-book of England are declared 
 to be those of Soutli Africa, .that their form of 
 discipline is in all material points identical with tliat 
 of England ; that an English clergyuian is eligible for 
 pref(n-ment there, that an Englisii Churchman would 
 find there the religious mliiistrations which lie left 
 behind him in England; and that there is no other 
 ecclesiastical organisation, in the Cape Colony at least, 
 of which all this can be said. And with all these 
 
36 
 
 1 ; 
 
 I i 
 
 t I 
 
 !i 
 
 tics — licreditary, doctrinal, discipliiiiuy, rifualistic, 
 and fjtiajicinl — it is plain tliat in all tlicsc rospoctis tlui 
 Clnirclics of Sonth AtVira arc fnirillinv to tlic o-cncj'al 
 satisfaction of f1ie mother Cliiircli all ilic objects for 
 vvliich tlicy "were founded in respect lo the I'cliiiioiis 
 interests of hea^licn niitioiis and of AnuTican colonists. 
 If they have l)Ccome capable of udo])ting. ami have 
 in fact adopted, the duties of se]f-V>'overnnient forced 
 on thcui by the home (Jovennnent, this is not 
 intended or nnderstood as {in act of disrn[»tion, 
 bui i^ an indicaticm of that healthy development, 
 of whitdi a inotlier Church, not bent on arbitrary 
 dictation. ou;;lit. to he proud, liut it a))pears that all 
 these elements of "connection" are, in tin- \i(\v of 
 the Enp:lj.di law, outweighed by the fact that tho>e new 
 and iinestablished dioces(>s, while accepting absolutely 
 the formubirics, and almost absolutely the ritual, of 
 the mother Church, do not bind tliomselves to aeeept 
 the judicial interpretations impose<l ii[)ou rlicir formu- 
 laries and ritual by the secular Court which, as a 
 consequence of the idliancc bctwi'en Church and State, 
 exists ill ]jiL;"land for controllinii'' on the ]K\vt of the 
 nation certain operations of the national establisluncjvt. 
 The Synod has declared that — 
 
 ''In flin iidcrinv'ldtion of [ils] slaiiiliiils n\n] f.iniiul.-ii'ii's ihc 
 Cliiircli (if iliis jmiviiKo li'» not held to Ik- lioiiud Iiy (ti't-isions In 
 qut'stions nf faitli Jiinl (loctviuc, or in i|ii('stiipii» of (liscipliiio cchiiin^^ 
 to faltli find dootrinc, oIIkm* than t1io.-i' of its osvii ('(■eh siastical 
 tribniials. or of such othov friliunul -a-- may lie acccptt'd i)y Uio 
 Provincial Synod lis a tribunal of a))])i'al.'" 
 
 Tiie Judicial Committee in tlic case of Merriman 
 V. Williams treat this ])ractical repudiation of their 
 e'clesiastical authority to be an abandonment of the 
 English standards of faith and doctrine : — 
 
37 
 
 ; 
 
 "Tliorn i-^ not ihi idi^ntity in pfandarda of faith and doctrine 
 wliioli aT)])(>ars to tlioir lonlshiim iiooossary to ostalilisli tlio poiinoction 
 rt>(|uiriMl Ity tlic trusts in wliicli tlio Cliiiroli of St. (j(V)r<ro is 
 tirtdcd. ... In Eiitrlniid tlic standard is tluH'orninlarii's of tlio 
 Chundi as jndicijiriv inli'vpri'li'd. In Sontli Africa il is tlioforniuhirios 
 ns tlioy ni;iy be ('unsli'md wilhoiit tlic intciTiiritation." 
 
 And t\)<^\ lor.isliips proccod to sny (as T read 
 their in<Lnvieril) thnt tliis divergence is not only 
 potenti;d l^iit notnnl — that flie niithoritv of tlie 
 Judieiid CVoinnittce is p;n't of the An^licnn '-'standard 
 "of faith and doctrine," and that c\en if the Church 
 of Sonth Afi'ica were to decide in ;ill i)ti])ortant 
 points as her i\raiesty in Council lias done, yet that 
 while it rejects tlic authority oi' her ]\hijesty in 
 Council it is in a state of separation, and has "a 
 "different stnndard"' from the mother Church. 
 
 As, liowover. T 'nay liave misunderstood a para- 
 graph whi(^h is noiliing less than momentous — certainly 
 of great inioortance to the Church as indicatino- the 
 view which the Jufhcial Committee take of tlieir own 
 position — I Continue my quotation : — 
 
 _ " It is arj.nu>d tlnil tlic diwrfjfiMion nuulc hy the Clnircli of Soutli 
 Africa is only ]>ot(Mitial, nnd not aotual. and that we have no rio-Iit to 
 s]io('nl;it(> on its ("IVoct nntil tho trilnmals of South Africa liavc sliowu 
 wlictiicr tlicv will aofrcc or disjiaTc' with tlios(> of Eoirlnnd. TIii>ir 
 lordslii|)s think (liMt the divcrf^'onco is present and actnnl. It is tho 
 auvccnicut of th(< two Cliiindics wliich is potcniial. Thi* ccch'siastical 
 trihunais of South Africa may i)ossil)ly (h'<'i(]i> iii sdl inii)ortant points 
 as hci- Majesty mi Ciiuncil lia-< done. But th(! (|ue-tion is whctlier they 
 1i!ivi> (lie same ,-%i,fndai'd, and, as has boon shown, tiioy havo a, difforeut 
 standi! rd." 
 
 An p'l'solvt- jn'esent agreement in the Avords 
 and authorii/ of ail formnhiries of reliirions faidi, 
 unaccompanied by any acknowledged dilfcrence as to 
 their meaning, is (as I understand) not an actual, but 
 a" ]iotcntial identity of standard. A possibihty of 
 future difference, due to plurality of authoritative 
 
j'ft*-" 
 
 1 \ 
 
 38 
 
 ' 5 
 
 intGq)retcrs, is not a potential but an actual difference 
 of standard. 
 
 Fully to opprociato tlie ('Hcct of this decision, it. 
 must be borne in niind that tlio la-.v of Ejigland 
 (however mitigated b)'" tlie pvactico of a fi'iendly 
 or e(|uitable GovernmcnT) does not require any 
 member of the Judicial Committee sitting on 
 ecclesiastical causes to be other tl:;ui an avowed 
 onponent of religion and all that belongs to it. And 
 I think it can liardlv be denied tliat to de^-lare. not 
 only that the decisions of sucli a liody arc- authori- 
 tative announcements of the sense in ulvich Courts of 
 Justice will enforce Church discipline, but that these 
 decisions nro parts of the Anglican " standards of faith 
 " and doctrine " — binding deHnitions of what tlie 
 Church believes — or, to put it pointedly, that the 
 services of a religious society caiuiot be even 
 " connected " with the " Church of England " if that 
 society hesitates to admit prospectively and in full 
 that the intcr}>retation })laced by such a l)ody on the 
 Nicene Creed is to be read into ^lie Creed itself and 
 taken as part of it — it can luu^dly he. denied, 1 rcpcjit, 
 that such an announcement applied to any society 
 professing a religion involves a signal and ruinous 
 humiliation to that socie.ty. 1 urn not historian 
 enough to know whether any such announcement has 
 ever been made before to any Christian or Pagan 
 community in any Christi;in or Pagan country. 
 Perhaps it has. If so, I sliould be curious to know 
 under what form of Government or kind of Governor 
 it was done. 
 
 At any rate, however, it a]«pears to be the law 
 
39 
 
 of England And, that being so, Chiir(:lnnc.n, how- 
 ever yiir[)ri8ed, ouoht not to be less obliged to Jiidneg 
 who let them know uneqnivocally the eonditiotis 
 under whicli Courts of Justiee suppose the Anglieiui 
 Chnrcli to exist in this country. 
 
 Thus nuich for En.Ldand. lieturning to the 
 Colonies, and renienil)ering the various senses in which 
 the phrase " Church of Knglaiid '" may be used—and 
 the \'arious languages iii which men niay describe their 
 intention to furnish tlieir co religionists in the Coh)nics 
 with the same supposed spii-itual advantages ^\■hich 
 they enjoy in England, and the various d(gre(.'s of 
 importance or unimportance; in''>vhicli the practice 
 of the Colonial Churches may diverge from that of 
 the niotiier country— it nnisr bo clear that this 
 judgment opens a. vast field of litiuation. 
 
 Of this tlie Judicial Committee seem fully aware, 
 and they close their reijort by expressing their 
 opinion — 
 
 "Tliat couHs cif liiw i-amiof. hrtiU- in auv sat is factory Wiiy 
 (liiostioiis affce'tiug p>riiianniit oiidowmciits aftoi-'a lutal ohaii'-u of 
 t'ircuiii.staiu'i'.s has oci'urivd." ° 
 
 Aiid 
 
 ;'T}H-ir rotu-uiVcju'e with (ho Cliiof Jii,s1ic(> iu tliinkino- (hat tho 
 Logitshituro al(ji;o cau j.roporly deal with siu'ii caHcs." 
 
 This brings tlic history dvwn to the present time.