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 Badnall 
 
 Remarks on the Judgment 
 Delivered in the Supreme 
 Court in re Bishop Merrinian 
 vs. Dean Williams
 
 THE LIBRARY 
 
 OF 
 
 THE UNIVERSITY 
 
 OF CALIFORNIA 
 LOS ANGELES
 
 ERRATA. 
 
 Page 19, line 32, for containing read contintmig. 
 
 Page 23, line 36-7, for in the Chapter-house of which read in 
 which. 
 
 Page 29, line 4-5, for represented not by the Dean alone but by 
 its own forfnal/y elected lay delegates read not through the Dean 
 alone, hut by the lay-delegates whom it had helped to elect. 
 
 Ibid,, line 6, omit as well as in that of \%']6. 
 
 Page 46, line 36-7, omit Chapter-house. 
 
 Page 47, line i, for Cathedral records read Diocesan records, 
 signed by the Dean of the Cathedral as President. 
 
 Page 96, 2nd paragr.iph of Attorney-General's Memo., line 10, 
 afteryor the time being insert for the objects or purposes of such 
 association, such office-bearer or office-bearers for the titne being.
 
 "^rr
 
 \ \ '■'^' 
 
 REMARKS 
 
 ON THE 
 
 JUDGMENT DELIVERED IN THE SUPREME COURT, 
 
 In re Bishop Jililerriman us. Jlean Williams. 
 AUGUST 26, 1880. 
 
 H. IBADNALL, D.D. 
 
 ARCHDEACON OF THE CAPE. 
 
 FRICE OISIE SHILLING. 
 
 CAPE TOWN 
 SAUL SOLOMON AND CO., PRINTERS. 
 
 1880.
 
 CAPE TOWN : 
 SAUL SOLOMON AND CO , PRINTERS, 
 
 ST. george's-street.
 
 6X' 
 
 •SHOO.). 
 
 Z5 BIM 
 
 ADVERTISEMENT. 
 
 When the following " Remarks, tf^r./'were already 
 in the Printer's hands, I was strongly advised to ap- 
 pend the Chief Justice's Judgment at length. Had 
 this, the better course, been decided on sooner, 
 shorter extracts from the Judgment would perhaps 
 have sufficed. I have not, I trust, taken an undue 
 liberty in presenting the Judgment under separate 
 headings, some of them in my own words, in order 
 to facilitate the comparison of the Judgment with the 
 observations offered on it. The " Notes" on the 
 Judgment which have appeared in the Grahamstown 
 Church Chronicle, I did not see until^the matter 
 of the following pages was thrown into shape, and 
 much of it written out. It was completed in advance 
 of the "Notes," and expresses an independent 
 estimate of the subject with which it deals. The 
 article in the Guardian of October 6 I did not see 
 until the '•'■Remarks'^ were all but ready for the press. 
 
 H. B. 
 
 Rondebosch, November 26, 1880. 
 
 1333133
 
 INTRODUCTORY REMARKS. 
 
 I HOPE I am right iii my persuasion that I owe no 
 apology to any one for attempting to allay in some 
 degree the pain and alarm which the Judgment de- 
 livered in the Supreme Court* in the case of Bishop 
 Merriman vs. Dean Williams on the 26th of last 
 August has caused to many of the best and truest 
 members of our Church in this land. If, indeed, it 
 were my purpose to contest with civil judges points 
 of law pure and simple, my design would be very 
 foolish. I should be then doing essentially the same 
 thing that Lord Romilly's Judgment does (Bishop 
 of Natal vs. Gladstone and Others) when it suggests 
 to colonial bishops to cut the prime knot of their 
 difficulties by throwing it on the judges of our civil 
 courts in the colonies to decide between bishops and 
 their clergy, or between bishops and bishops, on 
 articles of Christian faith and doctrine. But the legal 
 questions that arise in the course of the recent Judg- 
 ment are few, and those not intricate ; and even with 
 them I am concerned rather indirectly than directly, 
 or at least subordinately to the assumption that cer- 
 tain facts are proved. My principal contentions relate 
 to matters of fact, or of history, which it is only rea- 
 sonable that I should be anxious to present from the 
 stand-point of those who have been for years a living 
 part of them. Such anxiety cannot, I hope, be construed 
 without evident unfairness, into an imputation on 
 the impartiality of the judges. I am sure I may say 
 for others, as well as for myself, that we are grateful for 
 
 * For a verbatim and I believe very accurate report, for which I am in- 
 debted to the Grahamstown " Church Chronicle," see Appendix A. 
 
 B
 
 the candour, patience, and even kindness that 
 characterised the hearing of the case. But the subject- 
 matter of the dispute, together with its surroundings, 
 was new both to judges and counsel, and no amount 
 of industry could have possessed them, within the time 
 at their command, with that minute acquaintance 
 with all the facts that could alone have made over- 
 sights impossible. I address myself to my task, then, 
 not as a com.plainant, but as one strong in the con- 
 viction that important parts of our case — our case, 
 I say, for it is the case of the diocese of Capetown 
 every whit as much as of that of Grahamstown-^ 
 admit of a construction widely different from that 
 which the late decision has put upon them ; and that 
 in the interests of truth, as well as for the encourage- 
 ment of many disturbed hearts and minds, I am in 
 duty bound not to keep silence. It were needless to 
 say more by way of preface. Only a superior court 
 can appraise, to any practical purpose, the value of a 
 legal decision. What redress we may be able to 
 obtain, should the Judgment of the Supreme Court 
 be upheld, or rather, perhaps, what redress we shall 
 decide to seek^ is a question for the future.
 
 5 
 
 THE ORIGIN OF THE RECENT TRIAL. 
 
 The Privy Council, in June, 1863 (Long vs. the 
 Bishop of Capetown), incidentally to their adjudi- 
 cation of that case, laid down the following principles 
 for their own guidance, and that of all concerned : — 
 
 " The Church of England, in places where there is 
 no church established by law, is in the same situation 
 with any other religious body, in no better but in no 
 worse position, and the members may adopt, as the 
 members of any other communion may adopt, rules 
 for enforcing discipline within their body which will 
 be binding on those who expressly or by implication 
 have assented to them. 
 
 " It may be further laid down that when any 
 religious or other lawful association has not only agreed 
 on the terms of its union, but has also constituted a 
 tribunal to determine whether the rules of the associa- 
 tion have been violated by any of its members or not, 
 and what shall be the consequence of such violation, 
 then the decision of such tribunal will be binding when 
 it has acted within the scope of its authority, has ob- 
 served such • forms as the rules require, if any forms 
 be prescribed, and, if not, has proceeded in a manner 
 consonant with the principles of justice. 
 
 *' In such cases the tribunals so constituted are not 
 in any sense courts ; they derive no authority from 
 the Crown, they have no power of their own to 
 enforce their sentences, they must apply for that 
 purpose to the courts established by law, and such 
 courts will give effect to their decisions, as they give 
 effect to the decisions of arbitrators, whose jurisdiction 
 rests entirely upon the agreement of the parties. 
 
 " These are the principles," their Lordships proceed 
 to say, " upon which the courts in this country have 
 always acted in the disputes which have arisen betvveen 
 members of the same religious body, not being mem- 
 
 B 2
 
 bers of the Church of England To these 
 
 principles, which are founded in good sense and justice, 
 and established by the highest authority, we desire 
 strictly to adhere." 
 
 In 1S79 occasion unhappily arose for testing the 
 application ot the foregoing principles. In April of 
 that year Bishop Merriman thought fit to bring to 
 an issue a standing disagreement between Dean 
 Williams and himself as to their respective rights over 
 the Cathedral Church of S. George, Grahamstown, 
 by causing the Dean to be served with a notice of his 
 intention to preach in the Cathedral on a given Sunday 
 'morning, April 27th. The Dean-, — the Bishop 
 being present, robed, and in his place, — prevented 
 the Bishop by omitting to give out the usual hymn 
 betore the sermon, and preaching himself. The Bishop 
 uttered some few words of protest and left the 
 Church, In the June following. Dean Williams was 
 duly cited before the Diocesan Tribunal to answer for 
 this and other alleged offences, and in August, not 
 having appeared in person or by counsel, was adjudged 
 to have contumaciously hindered the Bishop in the 
 ^exercise of his proper episcopal functions, thereby 
 'Causing scandal to the Church, and was sentenced to sus- 
 pension with loss of income for one calendar month, 
 and longer until he should submit himself. Neither re- 
 cognising the sentence, nor appealing to the Metropoli- 
 tan, the Dean was again cited before the Diocesan 
 Tribunal in the ensuing November and excommuni- 
 cated. This last measure was against the feelings, 
 I believe, of all concerned in it ; but was in accordance 
 with Canon 19, Section XV., which requires that 
 "^' any person against whom judgment has been given, 
 who shall refuse to obey the sentence of any 
 tribunal of this Church, shall be, if not sentenced 
 to suspension or deprivation, ipso facto suspended ; 
 and if sentenced to suspension or deprivation, ipso
 
 facto excommunicated : And it shall be the duty of 
 the Bishop or MetropoHtan, as the case may be, 
 after notice given, to pronounce sentence : " — and 
 Bishop Merriman was advised that until he should 
 have exhausted the ecclesiastical remedies at his com- 
 mand, it would not be competent for him to have 
 recourse to the civil courts. Everything having 
 now been done, apparently, that could be done 
 under the rules of the local church (Canons 19 and 
 i\ of the Canons of the Church of the Province 
 of South Africa) to maintain discipline, application 
 was finally made to the Supreme Court, in order that 
 effect might be given to the decisions of the Diocesan 
 Tribunal, in accordance with the terms used by the 
 Privy Council as above recited, and the rights of the 
 Bishop of Grahamstown in relation to the Cathedral 
 Church, and as involved in the proceedings taken by 
 him against the Dean, vindicated. We next come 
 to the Judgment of the Supreme Court. 
 
 THE ISSUES TO BE DECIDED. 
 
 These do not appear to have been presented in the 
 pleadings with the distinctness that the Chief 
 Justice could have desired. Mr. Justice Smith 
 " entertained great doubts " as to whether " the rights 
 of the plaintiff and of the Church of South Africa 
 to property granted for ecclesiastical purposes in con- 
 nection with the Church of England" could be 
 discussed in this case. But at any rate, the Chiet 
 Justice was clear that '-the real subject ot contention 
 between the parties was the legal status ot the 
 plaintiff as well as the defendant in respect of the 
 Cathedral Church of Grahamstown, under, as well 
 as independently of, the decisions of the Diocesan 
 Tribunal." Undoubtedly the contention raised by
 
 Bishop Merriman did relate to his right as Bishop to 
 use the Cathedral, and officiate in it, and to prevent 
 the Dean from using it, as Dean or Rector, while he 
 was under a prohibition of the Diocesan Tribunal. 
 Out of this contention four questions arise : " First, — 
 What are the rights of the plaintiff, as a Bishop of 
 the Church of the Province of South Africa, in 
 relation to the Church of S. George ? In the second 
 place, — What are the rights of the defendant, in 
 respect of the same church as Rector and Dean ? 
 Thirdly, — Did the defendant, by his acts or conduct, 
 confer on the plaintiff any rights capable of being 
 enforced in this action, which but for such acts or 
 conduct the plaintiff would not have enjoyed? 
 Fourthly, — Are the respective rights of the parties 
 in any way affected by the decisions of the Diocesan 
 Court ?" 
 
 J. WHAT ARE THE PLAINTIFF'S RIGHTS AS A 
 BISHOP OF THE CHURCH OF THE PRO- 
 VINCE OF SOUTH AFRICA? 
 
 In other words — is Bishop Merriman the Bishop 
 of Grahamstown for the time being ? The Judgment 
 declares that he is not ; and for two reasons,— first, 
 because he is not Bishop Cotterill's lawful successor 
 in the See under letters patent ; secondly, because, even 
 if he were Bishop Cotterill's successor, he has cut him- 
 self off from the Church of England by the part 
 taken by him in the Provincial Synod of 1870. 
 I will take these two points in order, making my 
 remarks as 1 proceed. 
 
 In 1853 the Diocese of Capetown, which 
 originally comprised the whole of the Cape Colony 
 and its dependencies, was divided, v/ith Bishop Gray's 
 consent and cooperation, into the three separate 
 Dioceses of Capetown, Grahamstown, and Natal.
 
 In November of that year Bishop Armstrong was 
 consecrated by the Archbishop of Canterbury first 
 Bishop of Grahamstown under letters patent, and in 
 1856, on his death, was succeeded by Bishop Cotterill, 
 also under letters patent. Those letters patent 
 purport to ordain and constitute — the Chief 
 Justice says they "undoubtedly" do " ordain and con- 
 stitute — the City of Grahamstown to be a Bishop's 
 See, and the Church of S. George to be the Cathedral 
 Church and See of Bishop Armstrong and his suc- 
 cessors, Bishops of Grahamstown." Bishop Cottcrill's 
 letters' patent are in the same terms. They 
 also lay down " in what manner and by what process 
 their successors are to be appointed." They are to 
 be " named and appointed" by the Crown, " and by 
 the Archbishop of Canterbury canonically ordained 
 and consecrated, according to the form of the United 
 Church of England and Ireland." " Now, it is ad- 
 mitted," proceeds the Chief Justice, "that the 
 plaintiff has neither been named and appointed by the 
 Crown, nor ordained and consecrated by the 
 Archbishop of Canterbury ; but it is argued that, in- 
 asmuch as the Crown bad, before the election and 
 consecration of the plaintiff, discontinued the practice 
 of issuing letters patent for the appointment of 
 bishops in colonies possessing representative in- 
 stitutions, the vacancy caused by resignation of 
 Bishop Cotterill could only be filled by means of 
 a local election and consecration. This argument 
 affords a very good ground for respectfully requesting 
 the Crown to appoint a Bishop for Grahamstown 
 and issue a licence for his consecration by the 
 Archbishop of Canterbury, but it does not in any 
 way strengthen the plaintiff's title under the letters 
 patent. No such application seems to have been 
 made to the Crown by the authorities of the Church 
 of South Africa, nor do I see how it could have been
 
 lO 
 
 made consistently with the canons of that Church, 
 even assuming that the Crown would be willing to 
 accede to the request. It has been assumed through- 
 out the argument that the Crown would not accede 
 to such a request ; but it is by no means clear to me 
 that the Crown has ever declared its irrevocable 
 intention no longer to appoint Bishops for this 
 Colony. It may well be that the Crov/n will not 
 hereafter issue letters patent for the establishment of 
 new bishoprics in colonies possessing representative 
 institutions ; but it does not follow that the Crown 
 would refuse, upon representation made from the 
 proper quarter, to nominate successors to bishops 
 appointed under letters patent, which reserve this 
 power to the Crown. At all events there is nothing 
 in law to prevent the Crown even now at the eleventh 
 hour from naming and appointing some other person 
 than the plaintiff to be the Bishop of Grahams- 
 town, and if a person so appointed were ordained 
 and consecrated by the Archbishop of Canterbury, his 
 title in respect of the Cathedral — so far as the exist- 
 ing letters patent are concerned, — would be complete." 
 Two grave questions here arise : the one, did these 
 letters patent carry with them the quasi-legislative 
 powers which they purported to carry ? " The 
 plaintiff does not deny the right of the Crown," the 
 Chief Justice argues, " to create the body corporate 
 known as the Lord Bishop of Grahamstov/n, and 
 to constitute him and his successors to be a perpetual 
 corporation ; but if the letters patent were valid to 
 create a perpetual corporation, they must have been 
 equally valid to regulate the course of succession." 
 Was it so ^ Admitnng, for argument's sake, that 
 the letters patent could do the one thing, could they 
 therefore do the other ^ The other question relates 
 to the actual history of the withdrawal of the letters 
 patent, and is equally material to the main inquiry.
 
 1 1 
 THE LE3AL VALUE OF THE LETTERS PATENT. 
 
 First, then, as to the validity and virtues of the 
 letters patent. Now, it is remarkable that through- 
 out the careful and elaborate Judgment under 
 review, the Chief Justice, among all his numerous 
 citations from other Judgments, never once cites that 
 of the Privy Council in the matter of the Bishop of 
 Natal. He does, it is true, cite a subsequent 
 Judgment of the Privy Council (Bishop of Cape- 
 town vs. Bishop of Natal), in which reference is made 
 to the case of the Bishop of Natal, — Lord 
 Westbury's Judgment, as it is often called, — as 
 showing that " the letters patent were not wholly 
 void." The Judgment itself, I think I am correct in 
 saying, he never quotes. Whether the omission is 
 material will appear as I proceed. 
 
 It will be borne in mind that the Privy Council 
 (Long vs. the Bishop of Capetown) had previously 
 declared "that the letters patent of 1853, being 
 issued after a Constitutional Government had been 
 established in the Cape of Good Hope, v/ere ineffectual 
 to create any jurisdiction, ecclesiastical or civil, within 
 the Colony, even if it were within the intention ot the 
 letters patent to create such jurisdiction, which we 
 think doubtful." But this language would appear to 
 fall very far short of that adopted by their Lordships 
 in re The Bishop of Natal. In this Judgment they 
 say, " Three principal questions arise, and have been 
 argued before us : ist. Were the letters patent of the 
 8th December, 1853, by which Dr. Gray was 
 appointed Metropolitan, and a Metropohtan See or 
 Province was expressed to be created, valid and good 
 in law ^ 2nd. 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
 
 12 
 
 the Metropolitan valid and good in law? 3rd. Can 
 the oath of canonical obedience taken by the appellant 
 to the Bishop of Capetown, and his consent to 
 accept his See as part of the Metropolitan Province 
 of Capetown, confer any jurisdiction or authority 
 on the Bishop of Capetown by which this sentence 
 of deprivation of the Bishopric of Natal can be sup- 
 ported ? 
 
 " With respect to the first question, we apprehend 
 it to be clear, upon principle, that after the establish- 
 ment of an independent Legislature in the settlements 
 of the Cape of Good Hope and Natal, there was no 
 power in the Crown by virtue of its prerogative (for 
 these letters patent were not granted under the pro- 
 visions of any statute) to establish a metropolitan 
 see or province, or to create an ecclesiastical corpora- 
 tion, whose status, rights, and authority the Colony 
 could be required to recognise. 
 
 " After a Colony or settlement has received legisla- 
 tive institutions, the Crown (subject to the special 
 provisions of any Act of Parliament) stands in the 
 same relation to that Colony or settlement as it does 
 to the United Kingdom. 
 
 " It may be true that the Crown, as legal head of 
 the Church, has a right to command the consecration 
 of a bishop, but it has no power to assign him any 
 diocese, or give him any sphere of action within the 
 United Kingdom. The United Church of England 
 and Ireland is not a part of the constitution in any 
 colonial settlement ; nor can its authorities, or those 
 who bear office in it, claim to be recognised by the 
 law of the Colony, otherwise than as the members of 
 a voluntary association." 
 
 The Judgment then goes into the learning of the 
 subject to show that " the course which legislation 
 has taken," for the establishment of bishoprics abroad 
 and at home, " is a strong proof of the correctness of
 
 13 
 
 these conclusions It is true," add their 
 
 Lordships, " that it has been the practice,'for many 
 years, to insert in letters patent creating colonial 
 bishoprics clauses which purport to confer ecclesiastical 
 jurisdiction ; but the forms of such letters patent 
 were probably taken by the official persons who pre- 
 pared them from the original forms used in the letters 
 patent appointing the East Indian Bishops, without 
 adverting to the fact that such last-mentioned letters 
 patent were granted under the provisions of an Act 
 of Parliament. 
 
 "We therefore arrive at the conclusion that 
 although in a Crowii Colony, properly so-called, or 
 in cases where the letters patent are made in 
 pursuance of the authority of an Act of Parliament, 
 a Bishopric may be constituted and ecclesiastical 
 jurisdiction conferred by the sole authority of the 
 Crown, yet that the letters patent of the Crown 
 will not have any such effect or operation in a 
 Colony or settlement which is possessed of an 
 independent Legislature. 
 
 " The same reasoning is of course decisive of the 
 
 second question It is a settled 
 
 constitutional principle, or rule of law, that although 
 the Crown may by its prerogative establish courts to 
 proceed according to the common law, yet that it 
 cannot create any new court to administer any other 
 law .... It cannot be said that any 
 ecclesiastical tribunal or jurisdiction is required in 
 any Colony or settlement where there is no established 
 Church, and in the case of a settled Colony the 
 ecclesiastical law of England cannot, for the same 
 reason, be treated as part of the law which the 
 settlers carried with them from the mother country." 
 The treatment of the third question is necessarily 
 in keeping with that of the two questions preceding. 
 This Judgment, as I shall show presently, has been
 
 14 
 
 generally accepted as decisive. It may be admitted 
 that in this and in the Rolls' Judgment together 
 there are " dicta which " — to quote Professor 
 Mountague Bernard, — " taken in their plain gram- 
 matical sense, seem to militate against each other, 
 and can with difficulty be reduced, or tortured, into 
 harmony by the most skilful master of language,""' 
 But the fact that ever since the Judgment in fhe 
 matter of the Bishop of Natal was delivered, the 
 Imperial Government has scrupulously conformed to 
 it, is, practically, evidence that it decided the law 
 once and for ever. Even if we concede that the 
 letters patent of 1853 are "not wholly void";t 
 admitting them to be effectual to create some sort of 
 corporation, — thev are certainly void in law as 
 purporting to confer jurisdiction ; they cannot " create 
 an ecclesiastical corporation whose status, rights, 
 and authority the Colony " — or, it may therefore 
 safely be added, any section of the Colony, — " could 
 be required to recognise ;" they cannot even, where 
 the Crown may have rightfully ordered or allowed the 
 consecration of a bishop, " assign him any diocese, or 
 give him any sphere of action." Why then should 
 they be valid as purporting to lodge the right of 
 
 * Remarks or. some late Decisions respecting the Colonial Church, by 
 Ivlountague Bernard, M.A. Chichele Professor of International Law and 
 Diplomacy in the University of Oxford. 
 
 -|- The Chief Justice cites a judgment of the Privy Council (Bishop of 
 Cape Town is. Bishop of Natal) as proving that the letters patent were " not 
 vi^holly void "5 and that the second letters patent of the Bishop of Cape 
 Town of 1853, and those of the Bishop of Natal, both created corporations 
 capable of taking an estate under a grant from the Crown. But it is noticeable 
 that that judgment is founded not on the letters patent alone, but on a 
 series of equitable considerations grounded in common sense, and on the 
 circumstances of the case generally, it being an inference from all these 
 vaiious and combined considerations " that the effect of the grant and the 
 plaintift''s letters patent of 1853 was at least to give the plaintiff (the 
 Bishop of Natal) the right of access to the church, the right to officiate there 
 as Bishop, and the right to perform there all the religious services which are 
 or ought to be performed by a bishop in a cathedral consistently with the 
 laws and usages of the Church of England, so far as the same are applicable to 
 the Ciiurch and Colony in question."
 
 15 
 
 nomination and appointment with the Crown, and to 
 make consecration by the Archbishop of Canterbury 
 imperative, when it is expressly declared that they 
 cannot give him appellate jurisdiction? "It would 
 surely be a a absurd proposition," — to quote Professor 
 Bernard again (Remarks, pp. 23-4) — " to say that 
 the Crown can have legal jurisdiction over a bishop, as 
 such, in a place where a bishop, as such, is an officer 
 unknown to the law. The power of appointing a 
 bishop stands, of course, on wholly different ground 
 from that of appointing those civil officers who are 
 necessary for the transaction of public business and 
 the administration of justice in a Colony, and whom 
 the Crownj as head of the Executive Government 
 throughout the Empire, is authorised to appoint by 
 warrant wherever their services are required. A 
 bishop, unless he be a bishop of a church by law estab- 
 lished, is no more a public functionary than a Baptist 
 minister is; and he is not a public functionary within 
 a Colony unless the church be established by law 
 within the Colony" 
 
 WHY THE LETTERS PATEN T WERE DROPPED. 
 
 But this subject receives further elucidation from 
 the examination of the next question, namely, why the 
 letters patent were dropped. They ceased to be 
 issued, not because the Colonial Church failed in its 
 duty to the Crown ; nor because we made canons to 
 shut out letters patent ; but because, as it became 
 gradually clearer that the letters patent had failed of 
 their purpose, and were ineffectual for good, and were 
 productive of a harassing and mischievous uncer- 
 tainty, — the Crown was advised by its own law officers 
 to issue them no more, and the Church in the colonies 
 betook itself, under the sanction of the same high legal
 
 i6 
 
 authority that had exposed the worthlessness of the 
 letters patent, to seek safety and order in the only 
 way left open, o:\ the basis of consensual contract, aided 
 more or less by such legislation as might be had. I 
 will give instances of what I mean. 
 
 (i.) Judgment in re the Bishop of Natal was delivered 
 in March :(865. Within three or four months the 
 Bishops of New Zealand petitioned the Ouecn to be 
 allowed " to surrender their letters patent, and to be 
 allowed to rely in future upon the powers inherent in 
 their office for perpetuating the succession of their order 
 within the Colony of New Zealand, and securing the 
 due exercise of their episcopal functions, in conformity 
 with the Church Constitution hereinafter described." 
 This petition was based avowedly on the judgments 
 of the Privy Council, Long vs. Bishop of Capetown, 
 and in re the Bishop of Natal. The petitioners 
 further " express their conviction that the right of 
 appointment ot bishops in New Zealand is not part 
 of the prerogative of the Crown, inasmuch as all the 
 bishoprics were founded by private efforts, and 
 endowed from private resources." Finally, they 
 " humbly pray that all doubts may be removed as to 
 their status, both ecclesiastical and temporal '' : — 
 I St. " By the acceptance of the surrender of their letters 
 
 patent, now declared to be null and void. 
 2nd. "By declaring the Royal mandate under which 
 your Majesty's petitioners were consecrated, to be 
 merely an authority given by the Crown for the 
 act of consecration, and to have no further effect 
 or legal consequence. 
 3rd. " By recognising the inherent right of the Bishops 
 of New Zealand to fill up vacancies in their own 
 order by the consecration of persons elected in 
 conformity with the regulations of the General 
 Synod, without letters patent and without 
 Royal mandate."
 
 17 
 
 This petition was forwarded by the Secretary of 
 State for the Colonies, Mr. Cardwell, to the 
 Archbishop of Canterbury for his remarks. His 
 Grace replied, " The substance of that petition seems 
 to me to be the natural and necessary corollary from 
 the two judgments of the Judicial Committee jf the 
 Privy Council referred to by the petitioners." I am 
 unable to trace the rest of this correspondence, if 
 there was any. I only know, what all know, that 
 the Church in New Zealand has long been ordered 
 exactly like our own, and that for its older designa- 
 tion — " The Church of England in New Zealand" — 
 it has now substituted " The Church of the Ecclesias- 
 tical Province of New Zealand."*' 
 
 (ii.) In the same year Lady (then Miss) Burdett 
 Coutts, the munificent foundress of the Sees of Cape- 
 town, Adelaide in South Australia, and British 
 Columbia and Vancouver's Island, addressed the 
 Archbishop of Canterbury and Earl Russell, and the 
 year following, the Queen, by petition, under cover of 
 a very strong letter to Sir George Grey from the 
 Bishop of London (Dr. Tait), complaining that the 
 endowments provided by her for one object were in 
 danger of being misapplied to another and different 
 object, which she disapproved, involving the exemp- 
 tion of the colonial bishops, through defect of the 
 letters patent, from the Crown's ancient jurisdiction 
 over the state ecclesiastical, and praying that the 
 defect might be remedied by legislation. Mr. 
 Cardwell's reply to the Bishop of London states, 
 among other things, " that in the opinion of Her 
 Majesty's Government, it would be inconsistent with 
 the settled principles of colonial policy to establish 
 in the colonies by Imperial legislation a prerogative 
 in respect to ecclesiastical matters which the highest 
 court of appeal has declared to have no existence in 
 
 * Correspondence relative to Colonial Bishoprics. 1S66, No. I. Blue-Book.
 
 t8 
 
 law. They have, however, caused a bill to be framed, 
 and to be introduced into Parliament, which, without 
 interfering in matters which fall within the sphere or 
 local legislation, will, ad they hope, have the effect of 
 placing the Church of England at greater liberty to 
 extend and perpetuate its ministrations throughout 
 the colonial empire." (Corre<;pondence relative to 
 Colonial Bishoprics. Blue-Book, 1866.) 
 
 (iii). In consequence of the Judgment, in re the 
 Bishop of Natal, it was determined that no more 
 patents should be issued by the Crown for any 
 bishops of Canada ; and, accordingly, on the death of 
 Bishop Mountain, no patent was issued for his 
 successor in the see of Quebec, but simply a mandate 
 for his conssecration, addressed to the Bishcp of 
 Montreal as Metropolitan. In 1866, however, on 
 the election of the Archdeacon of Toronto (Bethune) 
 to be coadjutor Bishop of Toronto under the title of 
 Bishop of Niagara, it was determined that not even the 
 mandate should be issued. Lord Carnarvon, as Secretary 
 of State for the Colonies, thus writes to the Metropolitan 
 Bishop of Montreal, under date, Downing-street, Nov- 
 ember 2ist, 1866 : '' It appears by the recent deci- 
 sion of the Judicial Committee in the case of the Bishop 
 of Natal, that Her Majesty has not the power to 
 create a diocese, or assign a sphere of action to a bishop 
 in a Colony in which an independent Legislature has 
 been established. And it is the opinion of the law officers 
 of the Crown, to whom I have caused this question 
 to be submitted, that a mandate from the Crown is 
 not necessary to enable colonial bishops to perform 
 the act of consecration. It would not appear that 
 the proposed mandate could have any legal effect ; 
 and, under such circumstances, it would hardly be 
 consistent with the dignity of the Crown that Her 
 Majesty should be advised to issue such mandate."'"' 
 
 * Colonial Church Chronicle, Feb., I867, pp. 57 — 8.
 
 19 
 
 (iv.) The Metropolitan Bishop of Sydney addressed 
 Lord Kimberley in 1872 on the future appointments 
 of colonial bishops, as well as on the status of 
 priests and deacons of colonial ordination. Lord 
 Blachford's Act (the Colonial Clergy Act) has since 
 disposed of the second point. As to the first point, the 
 Bishop of Sydney had asked " that Her Majesty may- 
 be advised to grant licence to the Archbishop of 
 Canterbury to consecrate, and therein to name the 
 diocese to which the bishop is to be consecrated ;. 
 
 . . . and that such a course would be extremely 
 expedient for reasons connected with property." The- 
 Under-Secretary replies " that Lord Kimberley is not 
 prepared to recommend a depari:ure from the course 
 which has been adopted, after full consideration, 
 under the advice of law-officers of the Crown. That 
 course may be briefly summed up as follows : — 
 Her Majesty will be advised to refuse, in conformity 
 with the Judgment of the Judicial Committee, to ap- 
 point a bishop in any Colony possessing an indepen- 
 dent Legislature, without the sanction of that Legis- 
 'lature ; but she will be advised, on the application of 
 the Archbishop of Canterbury, to issue from time 
 to time such mandate as is required by law to 
 authorise the consecration of a bishop, no diocese or 
 sphere of action, however, being assigned itn such- 
 mandate. 
 
 " You are aware that colonial bishops may exer- 
 cise, and, in fact, have exercised the power of con- 
 secration without Royal sanction ; and it remains 
 for the colonial episcopate, having these facilities for 
 containing their succession, to secure the position of 
 their successors in respect to endowments or other- 
 wise, by such voluntary agreement or local legislation 
 as they may be advised is necessary or practicable.""^" 
 
 * Colonial Church Chronicle, Sept., 1872, pr- 3 54 — 5-
 
 20 
 
 (v.) Mauritius was constituted a Bishopric in 1 8 54, 
 Dr. Ryan being sent out as its first Bishop. In 1871, 
 on the death of Bishop Huxtable, Her Majesty's 
 Government determined not to issue any more 
 letters patent. " As soon as this was made known 
 to the Archbishop of Canterbury, arrangements were 
 made for Bishop Ryan to come out to Mauritius to 
 form a church body, which should hold in trust the 
 church property of the diocese, and henceforth have 
 
 the management of ecclesiastical affairs 
 
 A Synod was called together, consisting of eight 
 
 Clergymen and nineteen Laymen The 
 
 opinion of the Synod was that steps should be imme- 
 diately taken to have a Bishop sent out" .... 
 " the choice" to be left " to the Archbishop of 
 Canterbury."* 
 
 (vi.) On the demise of the late Bishop of Cape- 
 town, the fact was formally communicated through 
 Governor Sir Henry Barkly to Lord Kimberley, 
 Secretary of State for the Colonies, The reply from 
 Lord Kimberley was as follows : " I have received 
 with great regret the intelligence of the death of 
 the Bishop of Capetown, conveyed in the Colonial 
 Secretary's letter of the 19th ultimo." I may observe 
 that I find no fault with this letter. On the 
 contrary, I regard it as exactly befitting the occasion, 
 on which there was nothing more to be done, and 
 therefore nothing more to be said. 
 
 (vii.) In 1 87 1 a Bill passed the Natal Legislature, 
 whicn, had it become law, would have " vested the 
 property granted for the use of the English Church, 
 in the Bishop of Natal and his successors, thereby 
 assuming that the Bishopric of Natal will be 
 continued as an ecclesiastical corporation sole, by the 
 appointment of future bishops in succession to the 
 ^present Bishop." 
 
 * Colonial Church Chronicle, Sept., 1872 pp. 351 — 2.
 
 21 
 
 The Queen, by an order in Council, referred this 
 Bill to a Committee of Council, who recommended 
 Her Majesty to wiihhold Her assent to the Bill. 
 They state the grounds of their recommendation, in 
 part, as follows : — " Their Lordships presume — 
 having regard to the decisions of the Judical 
 Committee of your Majesty's Council, and the 
 orders made thereon with reference to the letters 
 patent granted by your Majesty to the Bishops of 
 Capetown and Natal — that your Majesty will not be 
 advised to appoint, by letters patent, any successors 
 to the present Bishop of Natal ; and they cannot 
 advise your Majesty to assent to a Bill founded 
 on an assumption that such an appointment will be 
 made." [Report to Her Majesty the Queen of the 
 Committee of Council on Bill No. i6 of 1871, 
 passed by Legislative Council of Natal, &c., &c.] 
 
 Now vhat does this evidence prove ? For every 
 practical purpose, it proves conclusively two things : 
 First, that the hypothesis that any day a patentee 
 Bishop may drop down on Bishop Merriman, and 
 forcibly and rightfully dispossess him of his throne, 
 house, and income, may be safely dismissed. True ; 
 there is no Imperial Act forbidding such a re-issue of 
 letters patent. But there are decisions of the Supreme 
 Court of Appeal declaring that nothing short of an 
 Act of the Imperial Legislature could give to letters 
 patent so re -issued legal validity. And on those 
 decisions not only have successive Secretaries of 
 State, under the advice of successive law-officers of 
 the Crown, reported through now many years in the 
 terms above detailed, but Her Majesty has herself 
 made orders which have identified Her executive 
 authority with the judicial advice tendered to Her. 
 There can be no receding from measures such as these. 
 The other point established by all this evidence 
 relates to the Judgment itself out of which the 
 
 c 1
 
 22 
 
 evidence has grown. To law has now been added 
 usage ; and the usage, originally based on the law, 
 and interpretative of it under the highest official 
 sanctions, has confirmed aud established the 
 law. 
 
 Guided, then, by the light so obtained, how are 
 we to estimate the letters patent of the first two 
 Bishops of Grahamstown ? They may have created 
 what I think is sometimes called a lay-corporation, 
 capable of taking an estate under a grant from the 
 Crown. ■ But having been granted after the Colony 
 had received an independent Legislature, and not 
 under the provisions of any statute, they could not 
 create an ecclesiastical corporation, whose status, 
 rights, and authority the Colony or any part of it 
 could be required to recognise. They could not 
 assign the Bishop any diocese, or give him any sphere 
 of action. They could not give him jurisdiction over 
 any person or persons, or give the Archbishop of 
 Canterbury jurisdiction over him. And what the 
 letters patent were ineiTectual to do, must be counted 
 as not c'one. A bishop so situated was the bishop 
 only of a voluntary association. He could acquire 
 authority as bishop only over those who contracted 
 with him. He was in the same position, apparently, 
 as the present Bishop of Capetown who was consecrated 
 by Royal licence simply "to be a bishop, to the intent 
 that he should exercise his functions in one of our 
 possessions abroad." Suppose a bishop to have 
 arrived on the spot nominally to be Bishop of Grahams- 
 town, furnished with letters patent purporting to 
 assign a diocese, and confer jurisdiction, but already 
 known to be invalid, every equitable consideration 
 and all right feeling might still have pointed to him 
 as entitled to be received as bishop over the volun- 
 tary association over which he had come, under 
 defective authorisation, to preside. But title he
 
 23 
 
 could have none, except on the footing of such con- 
 tract as should subsequently be entered into. 
 
 Construed by the light since thrown on them by 
 legal decisions of the very highest authority, and by 
 now some years of constant usage in conformity with 
 those decisions, it would seem impossible to read the 
 letters patent of Bishops Armstrong and Cotterill in 
 any other sense than the foregoing. In that case, 
 Bishop Merriman's claim to be recognised as Bishop 
 of Grahamstown would appear to differ from that 
 of either of his predecessors, chiefly in that it rests 
 on the basis of a sounder and broader contract, 
 namely, a contract with the whole diocese at the 
 time and in the act of his appointment and consecra- 
 tion. The English ecclesiastical system is diocesan 
 and provincial. The conge d' Hire testifies to the 
 common-law right of every diocese, freely to elect 
 its own bishop, as still in force."' Under the rules of 
 our Provincial Synod of 1870, the work of the con- 
 current action of the entire province, the Diocese of 
 Grahamstown, notably the Cathedral congregation, 
 united to elect Bishop Merriman (then ex-Dean of 
 Capetown) its bishop. " There is not a trace on 
 the minutes," I am assured by one who has inspected 
 them, " of anything like a protest, or an expression 
 of dissent of any kind. The Secretaries reported to 
 the President" (Dean Williams), "by whom it was 
 communicated to the assembly, that the clerical 
 members present, including those voting by proxy, 
 had both individually and unanimously elected the 
 Very Rev. N. J. Merriman, and that the lay members 
 had both individually and unanimously assented to 
 the same." The Bishops of the Province unanimously 
 confirmed the election, and, with the exception of one 
 who was unable to be present, took part in his con- 
 secration, in the same Cathedral in the chapter-house 
 of which he had been chosen, in which he wms atter- 
 
 * Sec Appendix B.
 
 24 
 
 wards enthroned, and from which by the decision of 
 the Supreme Court he is now an outcast. What 
 legal right did Bishops Armstrong and Cotterill enjoy 
 more than Bishop Merriman that has the virtue of 
 thus emptying Bishop Merriman's position of every 
 other right that equitably, and ex-contractu belongs 
 to it ? 
 
 The only strictly legal right possessed by his 
 predecessors under the letters patent more than 
 Bishop Me'-riman enjoys without letters patent 
 would appear to have been that affecting the trustee- 
 ship of S. George's Cathedral. The site on which the 
 Cathedral is built first belonged to the Crown. In 
 June, 1849, ^^'''^ November, 1850, grants of the land 
 on which the Cathedral and certain neighbouring pre- 
 mises stand were made by the Crown to Bishop Gray. 
 Under Act No 30 of 1 8 60, which was framed partly 
 for that purpose. Bishop Gray transferred the lands 
 so vested in him to Bishop Cotterill. And in June, 
 1 87 1, Bishop Cotterill made another transfer of the 
 land in question (clearly not under Act 30 of 1 860) 
 to himself or the Bishop of Grahamstown for the 
 time being. Archdeacon White or the Archdeacon 
 of Grahamstown for the time being, the Registrar 
 of the Diocese, and the Treasurer of the Board for 
 the Endownment Fund of the See of Grahamstown. 
 Of this last transfer, the Chief Justice says, " The 
 defendant denies the validity of the transfer, on the 
 ground that the requisite consent was not obtained ; 
 but so long as the transfer, which is a judicial act, 
 stands registered in the Deeds Office, it must be 
 assumed to be valid until judicially set aside.'* 
 I am no judge of the point of law, whether Bishop 
 Merriman, being admitted to be Bishop of Grahams- 
 town for the time being for every ecclesiastical pur- 
 pose embraced within the contract between himself 
 and the diocese in virtue of his election, consecration.
 
 25 
 
 and enthronisation, could be held to be legally Bishop 
 Cotterill's successor for the purposes of the trustee- 
 ship. How far the rule of Cy-pres might be held by 
 lawyers to apply to a case of this description, I can 
 form no opinion. But this I know, that the Colonial 
 Act No. 3 of 1873 ^^^ framed partly to meet the 
 very case in hand, and that when Imperial legislation 
 was contemplated that same year on purpose to pro- 
 vide for the transmission of property from bishops 
 who were Royal patentees to " persons duly conse- 
 crated to the office of bishop, having been accepted 
 as successors of such bishops by the clergy and laity of the 
 dioceses or reputed dioceses, concerned ;" and when Lord 
 Kimberley, then Secretary of State for the Colonies, 
 consulted the various colonial churches — this among 
 the number — by means of a circular letter, addressed 
 to the various Colonial Governors, as to the need of 
 such legislation, I was officially assured, being at the 
 time Vicar-General, by Governor Sir Henry Barkly, 
 in a letter dated Sept. 20, 1873, that, in the opinion of 
 his responsible advisers, including the present Chief 
 Justice, then Attorney-General, all such further legis- 
 lation was for us unnecessary. His words are, " My 
 responsible advisers are of opinion that there is no 
 necessity, so far as this Colony is concerned, for 
 Imperial legislation in regard to the future trans- 
 mission of property vested in the Bishop or other 
 office-bearers of the Church of England for ecclesiastical 
 purposes, — the Colonial Act No. 3 of the present year 
 having sufficiently provided for the regulation of all 
 property held in trust for religious associations."'-' 
 My official reply to Sir Henry Barkly, for transmission 
 to the Secretary of State, was largely influenced, as I 
 need scarcely say, by the assurance which he had been 
 authorised to give me ; and, a considerable majority 
 of colonies making similar replies. Lord Blachtord's 
 
 * See Imperial Blue-Book, C. — 979, 1S74. Also the Appendix to this Pamphlet.
 
 26 
 
 Act was passed the following year minus the property 
 clauses. 
 
 If the silence of the recent Judgment, with reference 
 to Act No. 2 of 1873, should turn out to mean that, 
 in the Chief Justice's opinion, I was wrongly advised 
 by the Colonial Government, the hardship of our case, 
 already sufficiently heavy, will be proportionably the 
 heavier. Meantime, Bishop Merriman, failing to 
 answer the definition of a legal successor to Bishop 
 Coi:terill,as measured rigidly by the terms of the letters 
 patent, is declared to be shut out from all estate in the 
 Cathedral. As far as it has been necessary to adjudi- 
 cate in this case, Bishop Merriman is pronounced not 
 to be the Bishop of Grahamstown for the time 
 i»eing, and the See to be as good as vacant. 
 
 mSPIOP MERRIMAN A SEPARATIST FROM THE 
 CHURCH OF ENGLAND. 
 
 " But," the Chief Justice says, ^^ a stronger 
 and at the same time less technical objection to the 
 plaintiff's title in respect of the Church of S. 
 George still remains to be considered. That church 
 was founded by and for the members of the Church 
 of England." The land on which the church 
 •stands was granted by the Crown to Bishop Gray 
 ^' upon the distinct trust that it should for ever 
 thereafter be used for ecclesiastical purposes in con- 
 nection with the Church of England^ and for no 
 other purpose or use whatever. But over and 
 above the private trusts attaching to the church 
 - , . the statute law of the land imposes upon 
 those who have the custody of the church, and the 
 administration of its affairs, the obligation to hold it 
 in trust for the members of the Church of England 
 3n Grahamstown." The Judgment proceeds to cite,
 
 27 
 
 in support of these allegations, sundry provisions ot 
 the Graham's Town Church Ordinance, Act No. 2 
 of 1839, and Act 30 of i860. Next is quoted a 
 passage from the Judgment of the Privy Council 
 (Long vs. Bishop of Cape Town) showing that for 
 the purpose of the contract between Mr. Long and 
 his Bishop, their Lordships took them " as having 
 contracted that the laws of the Church of England 
 shall," though only so far as applicable here, govern 
 both." To this is added a quotation from the Master 
 of the Rolls Judgment, to which the Chief Justice 
 evidently attaches great importance, and which I 
 therefore cite at length. " Where there is no State 
 religion established by the Legislature in any Colony, 
 and in such a Colony is found a number of persons 
 who are members of the Church of England, and 
 who establish a church there with the doctrines, 
 rites, and ordinances of the Church of England, it is 
 a part of the Church of England, and the members 
 of it are, by implied agreement, bound by all its 
 laws. In other words, the association is bound by 
 the doctrines, rites, rules, and ordinances of the 
 Church of England, except so fiir as any statutes 
 may exist which (though relating to this subject) 
 are confined in their operation to the limits of the 
 United Kingdom of England and Ireland. Accord- 
 ingly upon reference to the civil tribunal, in the 
 event of any resistance to the order of the bishop in 
 any such Colony, the court would have to inquire, 
 not what were the peculiar opinions of the persons 
 associated together in the Colony as members of the 
 Church of England, but what were the discipline 
 and doctrines of the Church of England itself, 
 obedience to which doctrines and discipline the court 
 would have to enforce. ' 
 
 The Chief Justice goes on : " We may take it, 
 then, to be reasonably clear that under certp.in pubhc
 
 28 
 
 statutes of this Colony, as well as under the title 
 deeds affecting the property, the claims of all persons 
 who assert any ecclesiastical rights in respect of S. 
 George's Church, Grahamstown, must be decided 
 according to the laws of the Church of England, so 
 far as they s re applicable here." This brings us to 
 the crucial question, " By what religious body " 
 was Bishop Merriman " appointed and consecrated as 
 Bishop, and entrusted with the charge of the Diocese 
 of Grahamstown ? That religious body is admitted 
 to be the Church of the Province of South Africa. 
 If that body is a part or branch of the Church of 
 England, and, as such, entitled to appoint bishops of 
 dioceses of the Church of England in South Africa, 
 this court would be bound to recognise its rights as 
 against all members of the Church of England in the 
 Diocese who interfere with them. If it is not a part 
 or branch of the Church of England, it is difficult to 
 see upon what grounds this court can be asked to 
 impose its Bishop upon a congregation, consisting of 
 members of the Church of England, in respect of a 
 church which the public law of the land has devoted 
 to ecclesiastical purposes in connection with the 
 Church of England." 
 
 THE CHURCH OF ENGLAND FS. THE CHURCH OF 
 THE PROVINCE OF SOUTH AFRICA. 
 
 The Chief Justice proceeds to dispose of the 
 Church of the Province of South Africa, and of 
 Bishop Merriman with it, by treating them as a 
 separatist body ; as much a separatist body, 
 apparently, as if they had joined the Wesleyans or 
 the Church of Rome. He identifies their point of 
 departure from the Church of England with the 
 Provincial Synod of 1870, and thus tacitly, but not
 
 29 
 
 indirectly, involves the whole Province in the schism. 
 The actual history of the growth of the province, 
 where it began, how it took shape, how the Cathedral 
 congregation, represented not hy the Dean alone 
 but by its own formally elected lay-delegates, took 
 part in the Synod of 1870, as well as in that of 1876, 
 and helped to frame the very constitution and 
 canons under which the same congregation subse- 
 quently conduced to Bishop Merriman's unanimous 
 election ; — all this the Judgment passes by, together 
 with a great deal more, to which, however necessary 
 to a full and fair estimate of the case, it was perhaps 
 morally impossible, under all the circumstances, that 
 the attention of the judges should have been particu- 
 larly directed. The charge of separation, however, 
 is grounded in a series of perfectly distinct considera- 
 tions, which I will next proceed to examine. 
 
 i. First, absolute reliance seems to be placed on 
 the name Church of England^ as though it must mean 
 one thing; evervwhere. " It is too late to contend, as 
 has been done in the present case, that no legal 
 identity can exist between the Church of England in 
 South Africa and the Church of England in the 
 mother country. That identity has been recognised 
 by the two colonial statutes just mentioned (Act 2, 
 1839, ^^"^^ ^^^ S*^* i860) and by the decisions of the 
 Privy Council in the cases already quoted, and of 
 the Master of the Rolls." Our offence would appear 
 to present itself to the Chief Justice in the same light 
 as if we had claimed to create a new Province under a 
 new name in England itself, within the geographical 
 limits of the Provinces of Canterbury or York, hold 
 our own Synod independently of Convocation, frame 
 our own laws in contempt of the Imperial Parliament, 
 and set up our own tribunals, against those of the 
 Sovereign, to apply our laws. I understand the 
 argument against us to be that the name Church of
 
 30 
 
 England is prohibitory of the name Church of the 
 Province of South Africa, because the Church of 
 England itself, — not the name^ but the thing named, — 
 is identically one and the same, here and at home. 
 
 The answer is that the name, Church of England, 
 is a palpable equivoque, and determines nothing. If 
 it did determine anything, it should be enough to cite 
 the second of the " Preliminary Resolutions " prefixed 
 to our constitution and canons : " That it is 
 expedient that in all acts and documents the entire 
 church, which comprehends the five aforesaid dioceses 
 (Capetown, Grahamstown, Maritzburg, S. Helena, 
 and the Orange Free State) should be called the 
 Church of the Province of South Africa ; this title 
 not being intended to exclude other titles (such as 
 English or Anghcan Church) under which this church, 
 or any portion of it, may be known, but being used 
 to express the fact that the whole church thus intituled 
 is united in this provincial organisation, through 
 which it is connected with other churches of the 
 Anglican Communion and with the Church of England 
 in particular." In the preamble to the constitution the 
 alternative names are thus given, " otherwise known 
 as the Church of England, or the English Church, or 
 Church of the Anglican Communion in these part«." 
 To which I may add that if any one will turn to 
 Cardweirs Synodalia, he will find on a comparison 
 of the Latin and English versions of the Laws Eccle- 
 siastical, both being of authority, that '' Church of 
 England " is the invariable equivalent of " Ecclesia 
 Anglicana." Why is the name, if so much weight is 
 to be put upon the name " Church of England," to 
 mean less in Bishop Merriman's mouth than in the 
 Dean of G'-ahamstown's ? 
 
 But the name, as a name, is a transparent equivoque. 
 In England it means the geographical Provinces of 
 Canterbury and York, with the dioceses which they
 
 31 
 
 respectively include, presided over by bishops who 
 are peers of the realm. It means, besides such por- 
 tion of the body of canon law as has obtained in 
 England since the reformation on the footing of 
 
 consent^ usage, and custom, the entire collection 
 
 of the statutes ecclesiastical, of which 263 are printed 
 by Stephens as passed between the first year of 
 George IV. and the eighth of Victoria ; not to speak 
 of those passed before and since that period. It 
 means the Houses of Convocation, the ecclesiastical 
 Courts, together with the whole system ot ecclesiastical 
 judicature and administration, the Supremacy of the 
 Crown in relation to the Established Church, grounded 
 in old common-law rights and re-asscrted by the 
 statutes of Henry VIII. and Elizabeth, and what- 
 ever else appertains to the Church, as part of a system 
 as old as England itself. Does any one suppose, or 
 does the Chief Justice mean, that a private " Ordi- 
 nance for authorising the appointment of a vestry 
 and churchwardens for S. George's Church, Grahams- 
 town"' (Act. 2 of 1839), and an Act to " Enable the 
 Bishops of Capetown and Grahamstown, respectively, 
 to alienate, under certain conditions and restrictions, 
 property vested in their respective sees" (Act. 30, 
 i860), can possibly have the incidental effect of 
 extending the Church of England, in all its essential 
 characteristics, into this country .^ A Colonial Act 
 for legalizing a select vestry, which is to possess 
 powers and perform duties " according to the customs 
 and usages of the United Church of England and 
 Ireland," could no more extend to the Cape Colony 
 the jurisdiction of the Court of Arches than it could 
 abohsh the House of Lords. Act 30 of i860 men- 
 tions the Church ot England in its interpretation clause 
 once as follows : " In the interpretation of this Act 
 the term " parish" shall mean any defined district of 
 town or country placed by the bishop of the diocese,
 
 32 
 
 acting in accordance with the laws and usages of the 
 Church of England as received and accepted in this 
 Colony under the pastoral charge of a particular 
 minister ; and the bishop and clergy mentioned in 
 this Act shall mean the bishops and clergy 
 of the said Church, &c., &c." The words above 
 italicised plainly limit the terms "laws and 
 usages" to what the Chief Justice himself admits 
 when he says that all claims in respect of 
 S. George's Church, Grahamstown, "must be 
 decided according to the laws of the Church of 
 England so far as they are applicable here" and are 
 also a disclaimer of all those legal rights and obliga- 
 tions which are involved in the term Parish as known 
 to the law of England. How can these two Acts be 
 said to " recognise," and thus, I suppose, give a 
 statutory confirmation to, the " identity " of the 
 Church of England as by law established with the 
 Church of England in the abridged and adapted 
 condition — I speak of it now as a political not as 
 a religious society — in which, if at all, it must rxist 
 here, on a purely voluntary basis ? "To speak of 
 inhabitants of a Colony, where there is no established 
 church, as being members or forming part of the 
 Established Church of England and Ireland, is non- 
 sense, if we use that phrase in its literal accepta- 
 tion as meaning the political society constituted 
 under that name by law in England and Ireland. 
 Where they (colonists) live, the laws that make 
 that society do not exist, and the society itself, 
 therefore, can have no existence. To use this 
 expression therefore is to affirm, what some deny, 
 that there is, under that name, a religious society as 
 well as a political one ; and it really amounts to no 
 more than an assertion that there are in the Colony 
 persons accepting the same religious belief, the same 
 forms of worship, and, so far as may be^ the same or
 
 33 
 
 a like religious organisation as arc accepted 
 by the persons composing that religious society in 
 England." * In keeping with this is the well-known 
 saying of the late Bishop of Exeter, one of the best 
 ecclesiastical lawyers that England ever produced, 
 *' that there is no Church of England out of 
 England ; " and also Lord Campbell's famous diction'\ 
 (Oueen vs. Eton College) that " except in a few 
 instances provided for by express statutes, as in the 
 Eairt Indies, a colonial bishop " has nothing in 
 common with the English and Irish Bishops who 
 belong to established churches, except that he is a 
 Protestant bishop, canonically consecrated, and hold- 
 ing the fiith of the Anglican Church." The 
 Colonial Clergy Act, 1874, — the most recent 
 Imperial legislation affecting the colonial church, — 
 also distinguishes clearly, and in terms, between bishops 
 of the Church of England and the orders conferred 
 by them, on the one hand, and on the other, 
 " bishops not being bishops of the Church of England" 
 or a " bishop other than a bishop of a diocese " in 
 England, viz., colonial bishops and their orders. 
 (Compare Preamble with Sections 3 and a). The 
 Privy Council, too, distinctly admits the laws of the 
 Church of England to be binding " only as far as 
 applicable here," throws it upon us to determine how 
 far they are applicable by framing our own rules for 
 enforcing discipline, and further, declares it to be 
 lawful for us to constitute our own tribunals for 
 applying our rules. 
 
 As to our colonial church ordinances, nine in 
 number, what has been already said of Act 2, 1839, 
 substantially applies to them all. It may be added 
 that, though not any one of them is in accordance 
 with the common law of the Church of England, 
 
 * Remarks, &c., by Mountaguc Bernard, p ii. 
 f Queen's Bench Reports, Vol. VIII., Part III.
 
 34 
 
 and all are more or less difFereiit from each other, 
 they admit of a good defence and common sense expla- 
 nation. The persons who sought a quasi- parochial 
 incorporation under them were, individually, mem- 
 bers of the English Church by law established. They 
 sought the help of the local Legislature just for the 
 reason that here there was no United Church of 
 England and Ireland, and their object was fair and 
 reasonable, when congregational self-government 
 was all that was aimed at or thought of The 
 operation of these local ordinances has never been 
 interfered with, and our provincial constitution, more- 
 over, contains special provision tor their due recogni- 
 tion, so long as they may continue unrepealed. 
 
 The battle of names is not worth further fighting. 
 The Chief Justice himself admits the difference of 
 designation not to be "^decisive". According to 
 English usage, to be a priest of the Province of 
 Canterbury, or of the Province of York, is to be 
 a priest of the Church of E-ngland. We say, on the 
 same grounds, that to be a priest of the Province of 
 South Africa is also to be a priest of the Church of 
 England here, so far as the name Church of England 
 is applicable to our circumstances. The dispute ap- 
 peared childish, till the Supreme Court made questions 
 of property, and of matters still more vital, to hinge 
 on it. The Church of New Zealand, as has been 
 already said, has lately exchanged the title of Church 
 of England in New Zealand for the more exact official 
 designation of the Church of the Ecclesiastical Province 
 of New Zealand. Call ourselves what we may, we do 
 not thereby alter our situation. If we would have 
 bishops over us, all alike we must choose them, or de- 
 pute others to choose them. All ahke we must decide 
 how far the laws of the Mother Church are applicable, 
 if applicable at all ; must constitute our own tribunals, 
 appoint our own judges, frame our own methodsof pro
 
 35 
 
 cedure. We are all alike shut out from the English 
 ecclesiastical courts. The English system, moreover, 
 is essentially Diocesan and Provincial. As one 
 Diocese cannot govern another, so one Province can- 
 not govern another. The Sovereign, too, stands in a 
 different legal relation to the Provinces of Canterbury 
 and York from that in which She stands to our Province ; 
 — Her supremacy in relation to us here being iden- 
 tical with its relation to all other unestablished 
 religious bodies, and the xxxviith Article, therefore, 
 having the same significance for us all, as claiming for 
 the Crown simply the same " Chief Government of 
 all estates" against the Papal or any other foreign 
 jurisdiction. No one name can adequately express 
 our situation. But, the situation being what it is, if 
 it unchurches Bishop Merriman, so far as the argu- 
 ment has at present proceeded, it equally unchurches 
 Dean Williams. 
 
 SPECIFIC ACTS WHEREBY BISHOP MERRIMAN IS 
 HELD TO HAVE CUT HIMSELF OFF FROM THE 
 CHURCH OF ENGLAND. 
 
 But the Judgment, leaving the question of names, 
 next proceeds to show that, beneath the difference of 
 names, lie other differences of a more fundamental 
 kind ; to use the express words of the Judgment, in- 
 stances of " more important departure from the laws 
 of the Church of England." They are five in 
 number. 
 
 (a.) The first article of our constitution stands as 
 follows ; and since comparatively few members of our 
 Church know anything accurately of our svnodical 
 proceedings, I print it entire : — 
 
 " The Church of the Province of South Africa, other- 
 
 D
 
 36 
 
 wise known as the Church of England in these parts : 
 First, receives and maintains the Faith of our Lord 
 Jesus Christ as taught in the Holy Scriptures, held 
 by the Primitive Church, summed up in the Creeds, 
 and affirmed by the undisputed General Councils : 
 Secondly, receives the Doctrine, Sacraments, and 
 Disciphne of Christ as the same are contained and 
 commanded in Holy Scripture according as the 
 Church of England has set forth the same in its 
 Standards of Faith and Doctrine, and it receives the 
 Book of Common Prayer, and of Ordering of 
 Bishops, Priests, and Deacons, to be used, according 
 to the form therein prescribed, in Public Prayer and 
 Administration of the Sacraments and other Holy 
 Offices ; and it accepts the English version of the 
 Eloly Scriptures as appointed to be read in Churches ; 
 and, further, it disclaims for itself the right of altering 
 any of the aforesaid Standards of Faith and Doctrine. 
 
 " Provided that nothing herein contained shall pre- 
 vent the Church of this Province from accepting, if it 
 shall so determine, any alterations in the Formularies 
 of the Church (other than the Creeds) which may be 
 adopted by the Church of England, or allowed by 
 any General Synod, Council, Congress, or other 
 Assembly of the Churches of the Anglican Com- 
 munion ; or from making at any time such adaptations 
 and abridgments of, and additions to, the Services of 
 the Church as may be required by the circumstances 
 of this Province : Provided that all changes in, and 
 additions to, the Services of the Church, made by the 
 Church of this Province, shall be liable to revision 
 by any General Synod of the Anglican Communion 
 to which this Province shall be invited to send repre- 
 sentatives. 
 
 '' Provided, also, that in the intrepretation of the 
 aforesaid Standards and Formularies the Church of 
 this Province be not held to be bound by decisions, in
 
 37 
 
 questions of Faith and Doctrine or in questions of 
 Discipline relating to Faith or Doctrine, other than 
 those of its own Ecclesiastical Tribunals, or of such 
 other Tribunal as may be accepted by the Provincial 
 Synod as a Tribunal of Appeal."''' 
 
 From the second of the foregoing provisos, the 
 Chief Justice infers it to " be clear that the jurisdic- 
 tion of the Queen in Council, in the interpretation of 
 the " standards and formularies in questions of faith 
 and doctrine," is not recognised by the Church of 
 South Africa, and, as if to leave no doubt upon the 
 matter, another canon (the 30th) emphatically declares 
 that if any question should arise as to the interpreta- 
 tion of the canons or laws of this Church, or of any 
 part thereof, the interpretation shall be governed by 
 the general principles of canon law thereto applic- 
 able :" — a canon which the Chief Justice contrasts 
 with certain well-known dicta of the Committee of 
 Privy Council in the case of Williams vs. Bishop of 
 Salisbury, as though, not content with having excluded 
 the jurisdiction of the Sovereign, we had also imposed 
 rules for the guidance of our tribunals in opposition 
 to " the laws of England." 
 
 As to our 30th canon, it does no more than lay 
 down the common sense principle, that inasmuch as 
 our expressed rules, on the face of them, make no 
 pretence to be a perfect code, they shall be interpreted, 
 where they need interpretation, by the broad ascer- 
 tained principles of the common law of the Church, 
 as they have come down to us through post — reforma- 
 tion times, assured by custom, recognised by statutes, 
 or in other ways. But what can be meant when we 
 are said to have ignored the jurisdiction of the Queen 
 in Council ? The jurisdiction of the Queen^s Courts 
 is compulsory. Could we ignore the jurisdiction of 
 
 * Constitution and Cancns of the Church of the Province of South Africa 
 (Article I., pp. 6, 7). 
 
 D 1
 
 3B 
 
 the Supreme Court of this Colony ? The scenes 
 recently enacted at Grahamstown are the answer. 
 We are powerless against any decision of a Queens 
 Court. On the other hand, where the Queen has no 
 legal jurisdiction, the mere agreement of private 
 persons cannot set it up. The voluntary agreement, 
 which is the basis of an arbitration, is wholly distinct 
 from the authority which, under certain conditions, 
 can alone give effect to an arbitration. Apparently, 
 there is some confusion between the Judicial Com- 
 mittee, as it is empowered by statute to hear appeals 
 in ecclesiastical suits from inferior ecclesiastical courts, 
 which yet are Crown Courts, and the Queen in Council 
 ns the Court of Appeal from Her own civil tribunals 
 l^ere and elsewhere. " Nobody will seriously con- 
 tend," says a high authority, several times quoted 
 already, " that an appeal would lie from a sentence 
 of deprivation by a Bishop of Natal, or any bishop 
 similarly situated, to the Queen in Council, or will 
 confuse with such a proceeding an appeal from a 
 civil tribunal, like that prosecuted by Mr. Long. In 
 the former case, there would be, in the eye of the 
 liw, no court, no cause, no judgment, and therefore 
 no appeal : in the latter, the appeal is not from the 
 Bishop's judgment, nor to the Crown as an ecclesiastical 
 judge."* Solvitur ambulando. We are recognising 
 the jurisdiction of the Sovereign, in the only way open 
 to us, by appealing to the Privy Cguncil against the 
 Judgment of the Supreme Court, which also is a Court 
 of the Sovereign. The Privy Council itself (Long vs. 
 Bishop of Capetown) laid down for us the line we 
 are pursuing. We can but go to such courts of the 
 Sovereign as are open to us. 
 
 The proviso may lie open to the objection that it 
 is superfluous. But its meaning is hardly doubtful. 
 
 * Remarks by Professor Mountague Bernard, p. 12.
 
 39 
 
 It claims that any clergyman of this province, 
 accused of heretical or false doctrine, shall stand on 
 the same footing that lie would occupy under like 
 circumstances in England. I'he proof must depend 
 on a comparison of the passages charged against him 
 with *' the true construction of those articles of 
 religion and formularies referred to in each charge, 
 according to the legal rules for the interpretation of 
 statutes and written instruments.' " In other words, 
 the test of doctrinal truth here, as well as at home, 
 must be the formularies, &c., which the accused has 
 subscribed^ not an unknown and ever-accumulati r.g 
 body of doctrinal decisions, bearing only indirectiy 
 on the particular case, which he could not possibly 
 have subscribed, and which he may never have heard 
 of. Such prosecutions have been declared to be of 
 the nature of criminal proceedings. Our proviso 
 accepts the ruling, and claims that, therefore, every 
 such case, in the colonies as well as in England,. 
 stand on its own merits, as measured against the 
 written law under which it comes. The proviso has 
 no special reference to any Court of Final Appeal . If 
 we choose to add to our Diocesan and Provincial 
 Tribunals a Tribunal of Appeal in England, we 
 must construct it for ourselves, as the Irish and 
 Australian Churches have constructed theirs In 
 any case it will stand on the same legal level with 
 our lower Tribunals, in that its decisions will equally 
 be no better than the decisions of arbitrators resting; 
 on the agreement of the parties, and dependent on 
 the civil courts to give effect to them. 
 
 It has been said that one possible operation of the 
 proviso might be to open the door in this Province 
 to a clergyman deprived at home, suppose, tor 
 inculcating the worship of the B. Virgin. But to 
 
 * Williams is. Bishop of Salisbury.
 
 40 
 
 this, our Canon 1 2, Section II., is a complete answer : 
 forbidding, as it does, any bishop of this province to 
 institute any clergyman to a pastoral charge in his 
 diocese, imtil such clergyman have produced, besides 
 his letters of orders, the testimonials required for 
 institution, subscribed by three or more priests, and 
 countersigned by the bishop of the diocese where he 
 last served, and until he shall have satisfied the 
 bishop into whose diocese he seeks admission, of his 
 " learning, soundness in the faiths and innocency of life 
 and conversation." 
 
 It also deserves notice, that the limitation involved 
 in the proviso would appear to denote that in 
 questions oiher than questions of faith and doctrine, 
 or of discipline relating thereto, we accept the custom 
 and ruling of the Mother Church as binding. 
 
 (b.l But Article I. of our Constitution contains 
 another " separatist '' proviso. Having tied ourselves, 
 hand and foot, to the doctrines and formularies of the 
 Church of England ; — having disclaimed the right of 
 altering any of the aforesaid standards of faith and 
 doctrine ; — we provide that we are not thereby to be 
 understood to have precluded ourselves " from accept- 
 ing any alterations in the formularies of the Church 
 {other than the Creeds^ which may be adopted by the 
 Church of England, or allowed by any General Synod, 
 Council, Congress, or other Assembly of the Churches 
 of the AngUcan Communion"; — it being further pro- 
 vided that any alterations in or additions to the 
 services of the Church made by this Province shall 
 be liable to revision by superior authority. We are 
 supposed to have "seriously departed from the 
 doctrines of the Church of England " by having re- 
 served to ourselves, as a Province, the right by impli- 
 cation not to accept whatever alterations may hereafter 
 be made in the Prayer Book at home, and particularly 
 by a parenthetical mention of the Creeds as, in our
 
 41 
 
 judgment, unalterable. In 1872, when the Convo- 
 cation of Canterbury had agreed to append to the 
 Athanasian Creed a certahi Synodical Declaration " for 
 the removal of doubts, and to prevent disquietude in 
 the use of the Creed," the Convocation of York proved 
 its independence by rejecting the recommendation. 
 To deny our Provincial Synod the same independence 
 would be contrary to the system of the Church of 
 England. We further assume, and we are not ashamed 
 of the assumption, that we hold the Creeds to be of 
 higher authority than the decree of any Synod, 
 provincial or national. Whatever the civil courts of 
 this Colony may determine, the time is not come yet 
 when the Church of England, by altering the Catholic 
 Faith, will constitute us separatists for adhering to it. 
 How, on such grounds, we can be separatists, liable 
 to the confiscation of our Church property, inprospectu, 
 it is still more difficult to conceive. It is as if a 
 beneficed clergyman in England were summarily 
 deprived for announcing that in the event of the 
 Imperial Parliament at some future time proscribing 
 the use of the Apostles' Creed he should refuse 
 obedience to such a law. 
 
 (c.) The third instance of our disloyalty to the 
 Church of England is found in Canon 3 — Of election of 
 Bishops. " In none " (of our rules) " is any licence, 
 mandate, or consent of the Crown, or its representative 
 in the Colony, required ; in none of them is the Crown 
 or its representative even mentioned." This point has 
 been sufficiently discussed already ; nor is it worth while 
 to go into the question as to whether, or how far, we 
 were entitled to consider the letters patent a hindrance 
 rather than an aid to the development of the Colonial 
 Church. The Synod of 1870 was " of opinion that 
 the resignation " by the Bishops of Capetown and 
 Grahamstown " of their Sees, as held under letters 
 patent, would for the present be inexpedient." In so
 
 42 
 
 deciding, the Synod took the course, as I think, most 
 respectful to the Crown, and, in every sense, the most 
 moderate. To say that " in none of our rules " 
 (affecting the appointment of our bishops) " is the 
 Crown mentioned," is a mistake. The second proviso 
 of Article XV. of our Constitution in terms 
 excepts from the ordinary operation of those rules "any 
 diocese in which a successor to the vacant see shall be 
 appointed by the Crown under letters patent giving 
 legal jurisdiction." The Vllth of our Prehminary 
 Resolutions asserts the same principle, with a particular 
 application to the Diocese of S. Helena. Acting in a 
 like spirit, when in 1864 the Duke of Newcastle, then 
 Secretary of State for the Colonies, obtained for us the 
 direction of the law-officers of the Crown touching 
 certain acts of previous Synods, whereby some impu- 
 tation of illegality had been incurred, we complied with 
 the advice tendered in every particular (See Constitu- 
 tions, Acts, &c., of the third Synod of the Diocese of 
 Capetown, 1865), and a copy of our Rules, as 
 amended, was at once forwarded to the Secretary of 
 State through the Governor. To have treated the 
 Royal Mandate, 1 870, as necessary for the valid conse- 
 cration of our bishops, would have been to close our 
 memories to the history of the Colonial Church during 
 the preceding seven years. 
 
 (d.) But, the Judgment proceeds, " Neither the 
 Synod of 1870, nor that of 1876, was attended by 
 
 the Bishop of Natal That he was 
 
 expressly excluded is clear By what 
 
 process of reasoning can a Church which excludes 
 from its comniunion and from its Provincial Synods 
 a Bishop of the Church of England, having a 
 Diocese within the Province, claim to be part and 
 parcel of the Church of England ? " I will explain. 
 
 After private, brotherly, and tender efforts made 
 in vain to win Bishop Colenso to reconsider his books 
 and his responsibilities, in February, 1863, twenty-five
 
 43 
 
 English Bishops, ten Irish, four Colonial, and two ex- 
 colonial Bishops, united in calling upon him, in terms 
 studiously gentle, but more formally, to weigh the 
 solemn question whether, should he adhere to his 
 published avowals and opinions, he could hoi^estly 
 retain his position. This letter was signed, among 
 others, by both the English and both the Irish Arch- 
 bishops, and the then Bishop of London, Dr. Tait. 
 On the following 23rd of March, the Archbishop of 
 Canterbury issued this circular to all the Bishops : — 
 *' I herewith forward to you a copy of the resolution 
 to which you gave your assent at the meeting in the 
 beginning of February. I wish to inform you that I 
 am myself about to act on it." (Signed) C. T. 
 Cantuar. The resolution stood as follows: — "That, 
 having regard to the grievous scandal to the Church 
 occasioned by certain books published under the name 
 of the Bishop of Natal, and not disavowed by him, 
 we, the undersigned, express our own resolution not 
 to allow the said Bishop to minister in the Word or 
 Sacraments within our several dioceses until the said 
 Bishop shall have cleared himself from such scandal."^' 
 Having been eventually deposed from his office by 
 the Court of his own Province, the Privy Council 
 pronounced the proceedings null and void in law. 
 Lord Rom illy, consistently with the previous decision, 
 gave him back his income, and a later decision of the 
 Privy Council confirmed his legal estate in the Church 
 property of the Diocese of Natal. The sentence of de- 
 position, however, as a spiritual act, was, in one form 
 or other, accepted by the Convocations of Canterbury 
 and York ; by the General Convention of the Church 
 of the United States ; by the Bishops of the Scottish 
 Episcopal Church ; by the Provincial Synod of the 
 Church in Canada ; and by fifty-six Bishops of the 
 Lambeth Conference in 1867. During one of his 
 
 » Life of Robert Gray. Vol. II., pp. IS— 55.
 
 44 
 
 visits to England, Bishop Colenso was advertised as 
 intending to preach in a church within the Diocese of 
 Peterborough. The then Bishop (Dr. Jeune) at once 
 inhibited him. On the occasion of another and later 
 visit, he attempted to preach at Oxford. The 
 Bishop (Dr. Mackarness) at once inhibited him. The 
 Bishop of London (Dr. Jackson) about the same time 
 issued" a general inhibition forbidding him to minister 
 within the Diocese of London. He subsequently 
 preached in the chapel of Balliol College, which is to 
 all intents as a private room, and was offered the 
 pulpit of Westminister Abbey by Dean Stanley, but 
 declined the invitation. To the last Lambeth 
 Conference, attended by a hundred bishops, he was 
 not invited. By our exclusion of Bishop Colenso 
 from our provincial councils and fellowship, we are 
 declared by the Supreme Court to have " separated " 
 ourselves " root and branch from the Church of 
 England." Did the Bishops who agreed in February 
 1863 to inhibit Bishop Colenso in the event of his 
 declining to retract, and the Bishops of London, 
 Oxford, and Peterborough, who subsequently, when 
 occasion for doing so arose, put the resolution in force, 
 thereby inflict upon themselves the same sentence of 
 excision ? Did they become " root and branch " 
 separatists from the Church of England, equally with 
 us .? And how stands the Archbishop of Canterbury 
 himself, from whom the invitations to the Lambeth 
 Conference proceeded ? 
 
 Bishop Colenso's restoration to the Church, — his 
 legal position I, of course, do not challenge, — would 
 be matter of rejoicing to me, and to thousands more. 
 No one who knows anything of his career can 
 seriously suppose that he does not deny the Faith, 
 as our Prayer Book embodies it, in fundamentals, or 
 can help seeing that Stopford Brooke has shown him 
 what ought to have been his course long since.
 
 45 
 
 Whether of the two, our Provincial Synod, in ex- 
 cluding Bishop Colenso, or Dean Williams, in making 
 common cause with him as he has done, — has the 
 better right to be said to represent the Church of 
 England in its present relations to Bishop Colenso, 
 let the action of the English Bishops declare. The 
 Judgment certainly goes great lengths when it makes 
 the inclusion or exclusion of Bishop Colenso in con- 
 nection with the meeting of voluntary religious bodies 
 a test of Communion, virtually pronouncing those 
 not in Communion with Colenso to be out of Com- 
 munion with the Church of England, 
 
 (e.) The fifth and last indictment against our 
 rules is that Canons 24 and 25 (of Vestries and of 
 Churchwardens and Sidesmen) " appear to infringe 
 upon the special laws made by the Colonial Legislature 
 for the management of S. George's Church." But 
 this again is a mistake. Article XVI. of our Con- 
 stitution provides expressly for the case of Grahams- 
 town, and all similar cases, covering both questions 
 of property, and matters generally of parochial 
 concern. It stands as follows : — " The Provincial 
 Synod shall frame such regulations as may be necessary 
 from time to time for the management of property held 
 in trust for the Church of this Province — save and 
 except the properties in the Dioceses of Capetown 
 and Grahamstown heretofore acquired — and shall 
 have full power and authority, except so far as the 
 same shall be ordered by law, or prescribed by the 
 terms of any special trust, to determine in what 
 manner, and upon what conditions, such property 
 shall be used or occupied. It shall also have power, 
 except such matters be otherwise ordered by law or 
 by terms of any special trust, to determine how and 
 by whom patronage shall be exercised, and what 
 shall be the duties of parochial officers and the rights 
 and privileges of parishioners in Church matters,
 
 4^ 
 
 and further, to frame rules as regards the division 
 and boundaries of parishes, and other such 
 questions." 
 
 The conckiding words of this part of the Judg- 
 ment demand a moment's separate consideration. 
 " In and over the rehgious body," says the Chief 
 Justice, " which has appointed the plaintiff as its 
 chief pastor, he is a Bishop entitled to exercise the 
 spiritual functions and consensual authority of a 
 Bishop, and within any church lawfully devoted to 
 the ecclesiastical uses of that body he is entitled to 
 perform all those episcopal functions which appertain 
 to his office according to the rules and canons of that 
 body ; but he has not, as of right, any episcopal 
 authority in and over the Church of England as 
 received and accepted in this Colony, or within any 
 church devoted by law or by private deeds of trust 
 to the uses of the Church of England." 
 
 Now the Church of England, as received and 
 accepted in this Colony^ in any fair and intelligible 
 sense of those words, is identical with the Church 
 of the Province of South Africa. There is no in- 
 telhgible sense in which the Church of England here 
 can be said to be identical with the Church by law 
 established at home. But if these positions be 
 disputed, there is at least no question as to what 
 religious body appointed the plaintiff its chief 
 pastor. That body was the Diocese of Grahams- 
 town, signally the Cathedral congregation. That 
 parish, being duly represented both at the Synod of 
 1870, and in the elective Assembly in 187 1, was 
 second to none in heartiness and zeal on either 
 occasion. The Cathedral was the place where the 
 electors met ; in the Cathedral they invoked God's 
 presence and blessing on what they were about to 
 do ; the election took place in the Cathedral chapter- 
 house ; the minutes of the election were entered on
 
 47 
 
 the Cathedral records; in the Cathedral Bishop 
 Merriman was consecrated, there he was enthroned, 
 and with that building he never ceased to be 
 identified as the kwful Bishop of Grahamstown, 
 until the other day, when, by one of those surprises 
 in which law is fertile, it was successfully pleaded 
 that the Cathedral, with its Dean and congregation, 
 belonged to one religious community, and Bishop 
 Merriman to another. 
 
 II. WHAT ARE THE RIGHTS OF THE DEFENDANT 
 IN RESPECT OF THE CATHEDRAL CAIURCII, AS 
 RECTOR AND DEAN ? 
 
 After what has been already said, tht case for the 
 defendant admits of being brought within compara- 
 tively narrow bounds. It is admitted that Dean 
 Williams was appointed Colonial Chaplain by the 
 Government, on Bishop Cotterill's nomination, in 
 1865, and that he was subsequently authorised to 
 assume the titles of Rector and Dean, but whether 
 under any formal instrument, or by any regular process 
 of any kind, is uncertain. It is also admitted that 
 on October 20th of the same year. Dean Williams 
 took and subscribed the oath of canonical obedience 
 to the Bishop of Grahamstown and his successors , 
 and, further, made declaration of his submission " to 
 the rules and regulations of the Synod of the 
 Diocese o^ Grahamstown in all things which 
 shall not be contrary to the laws of the United 
 Church of England and Ireland." Having regard 
 to all the facts, the Chief Justice concludes that were 
 Bishop Merriman such a Bishop as Bishop Cotterill 
 was, then the defendant would have been equally 
 bound to him, on the footing of the contract " that 
 the laws of the Church of England should, as far as
 
 48 
 
 applicable here, govern both." (Long vs. Bishop of 
 Capetown). 
 
 The contention for the Dean is that the relations 
 between him and Bishop Cotterill began on an honest 
 Church of England basis, and that the rules and 
 regulations of the Diocesan Synods of i860 and 1863 
 
 the only synodical rules in existence in the diocese 
 
 when the Dean made his subscription, — also rested 
 on an honest Church of England basis. But at some 
 subsequent time, so runs the story, a division arose 
 within the diocese. Certain parties agreed to " found 
 a Church distinct from the Church of England." 
 They did " found " such a Church, repudiating the 
 rightlul headship of the Sovereign, ignoring letters 
 patent, and making laws contrarient to those of the 
 Church of England, as well as to certain colonial 
 statutes binding on all true members of that Church. 
 Bishop Merriman is the creation of this new and 
 distinct religious body, and as such can have neither 
 part nor lot in the older community which Bishop 
 Cotterill represented, and to which Dean Williams 
 belongs still. Such, in sum and substance, is the 
 history of the rise of the Church of the Province of 
 South Africa, and of the Dean's relations to it, as 
 recognised or assumed throughout the argument of 
 the Chief Justice. My reply is that this is pure 
 theory, contradicted by the facts. 
 
 ]n limine, if such a new and distinct Church, as has 
 been said, was ever founded. Bishop Cotterill and the 
 Dean were foremost among its founders. The Dean did 
 r\otjoi7t it ; he united with his Bishop on the one hand, 
 and with his congregation on the other, to found it ;-- 
 that is to say, so far as the Diocese of Grahamstown 
 was concerned in the movement. The true history 
 of events may be more accurately stated thus : The 
 creation of the See of Grahamstown was part of a wider 
 scheme creating or purporting to create a Metropolitan
 
 49 
 
 See or Province. The letters patent issued to the 
 Metropolitan Bishop, as well as to his suffragans, under 
 this arrangement, were necessarily all of equal validity, 
 or invalidity, as we may choose to express it. By 
 degrees it became apparent that the days of letters 
 patent, under conditions such as ours, were past and 
 gone for ever. The Imperial Government, again and 
 again appealed to, again and again pointed to the 
 decision of the Privy Council in the matter of the 
 Bishop of Natal as final. Letters patent may have 
 created a corporation capable of taking grants of land. 
 Otherwise, they were void in law, and would be issued 
 no more. Meantime, in South Africa, as in Canada 
 and elsewhere, the Colonial Church, urged by its in- 
 herent vitality, refused to stand still, or to die out. 
 By slow and cautious stages, our several Dioceses 
 began to close in, and take the common action in- 
 cumbent on a Province, along the lines broadly marked 
 out for them by the joint action of the civil and eccle- 
 siastical authorities. It was this action that the Chief 
 Justice, — unavoidably — he will pardon me for saying — 
 a stranger to our system, — has evidently mistaken 
 for the founding of a new Church. Diocesan action 
 preceded Provincial action. Necessarily so ; for 
 Provincial action means the convergence to one point 
 of sundry separate lines of Diocesan action. Further, 
 Provincial action is essentially legislative. It is the 
 action to which we mainly look to give oneness to our 
 Diocesan system, although the Provincial Synod itself 
 is but one of a graduated series. And thus when at 
 last our Bishops, — Bishop Cotterill, as I have said, 
 among the foremost of them, — judged the time to 
 have come for summonmg our first Provincial Synod, 
 all loyal and intelligent churchmen hailed it as 
 a new point of departure indeed, but only 
 as men rejoice when they have crowned the arch with 
 the keystone. The Provincial Synods of 1870 and
 
 so 
 
 1876 may lie open to objection, or they may not ; 
 but it is certain that they stand in a direct, neces- 
 sary, organic connection with the Diocesan Synods of 
 i860 and 1863, which Dean Williams subscribed, and 
 his subscription to which — as the Chief Justice admits, 
 — may be assumed to have been a condition or his 
 obtaining the dignity of Dean. Let us look at the 
 documentary evidence of this assertion. 
 
 Chapter I. of the Acts, &c., &c., of the Synod 
 of Grahamstown (first and second Sessions, 
 1863), lays down the constitution of the Synod to 
 consist of Bishop, clergy, and laity under certain 
 self-imposed rules and conditions. Chapter VII. 
 provides " a Diocesan Tribunal for the exercise of 
 ecclesiastical discipline." This, clearly, was the act 
 of a voluntary body. The Synod was held without 
 licence of the Crown ; nor was the assent of 
 the Sovereign asked to what it did. What powers 
 greater than these were assumed by the Synod of 
 1870? The Synod also lays down rules regulating 
 the exercise of patronage. It prescribes " instructions 
 for the guidance and information of ministers and 
 parishioners, in the Diocese of Grahamstown, rela- 
 tive to the choice and duties of churchwardens and 
 sidesmen, the summoning and conduct of vestry 
 meetings, and other necessary parochial matters, in 
 cases wherein these matters are not already provided 
 for by local ordinance." It defines a parishioner to 
 be " every male member of the Church, being of the 
 full age of eighteen years." And it passes a resolution 
 that " four clerical and four lay members be elected 
 by ballot, by clergy and laity respectively, in such 
 manner as the Bishop may determine, to sit in a 
 Provincial Synod, should one be summoned before 
 the next meeting of the Synod of the Diocese." 
 
 To the Acts, &c., &c., of the Synod of 1867 
 {third Session) is prefixed a declaration : — " i. That
 
 5^ 
 
 the Synod, on behalf of the Diocese, accepts the 
 position /;/ ivhich it (the Diocese) has hitherto ftccd, 
 as one of the Dioceses of the Province of South Africa^ 
 &'c., &c, 1. That, in the opinion of this Synod, it is 
 desirable that a Provincial Synod should be held at 
 an early period, in order to agree upon tho«:e matters 
 which are necessary for the Church Government of 
 this Province, &c., &c. 3, That . . . . this 
 Diocese should be represented in the Provincial Synod 
 not only by its Bishop, but by representa- 
 tives of its clergy and laity, &c., &c. 4. That . 
 a Provincial Synod should provide a Tribunal of 
 Appeal from any sentences pronounced by a Diocesan 
 Tribunal, bzc. Sec. 5. That this Synod, recognising 
 the need of some Court of Final Appeal in ecclesias- 
 tical causes, .... requests the Lord Bishop 
 of Grahamstown to bring the subject before the 
 Congress of English and Colonial Bishops about to 
 assemble at Lambeth, &c., &c. 6. That the ccnsidera- 
 tion of the constitution of any Final Court of Appeal 
 for this Diocese be postponed till after the approach- 
 ing meeting of the Bishops of the whole English 
 Church at 1 ambeth. 7. That this Synod considers 
 it necessary, without delay, to make provision for 
 the mode of appointment of Bishops to the See of 
 Grahamstown as vacancies may occur. 8. Thar 
 
 the voice of the Church in the Diocese, 
 expressed through its clerical and lay representatives 
 assembled in Synod should be heard before any ap- 
 pointment to the vacant See shall be completed. 9. 
 That the Dean and Chapter be empowered, in the 
 event of emergency .... to summon the 
 Synod of the Diocese. lo. That this Synod 
 
 sittinc now for the first time after the 
 meeting of the Provincial Synod ot Bishops in 
 December, 1863, feels it a duty not to separate with- 
 out humbly expressing its dutiful acceptance of the 
 
 E
 
 52 
 
 condemnation pronounced on the teaching contained 
 in the writings of the Right Reverend Dr. Colenso, 
 subject to any review of the sentence before a higher 
 tribunal." Chapter xiii. includes the following 
 resolutions relating to a capitular body : " That 
 it is necessary, in order to carry out the 
 Cathedral system and the action of a capitular body 
 in the Cathedral Church of S. George, that the 
 Ordinance affecting that Church should be repealed, 
 and this Synod hopes that action with that object 
 may be taken by the parishioners of S. George's in 
 accordance with the petitions from the Synod of i860 
 to both Houses of Parliament, which were drawn up 
 and signed by the representatives of the said 
 Cathedral Church in the Synod then held." And 
 " That the Lord Bishop be respectfully requested to 
 draw up in consultation with the Dean and Chapter 
 a code of statutes for the said capitular 
 body." The ratification of the acts, &c., &c., of this 
 Synod, dated July i, 1867, stands signed by the 
 Bishop (Bishop Cotterill), F. H. Williams, Dean and 
 Rector of S. George's Cathedral, and the Clerical 
 Secretary. 
 
 " The first Lambeth Conference met in September 
 and December of the same year (1867), and the 
 inter-relations of the Home and Colonial Churches 
 formed the most prominent subject of discussion. The 
 importance of the Resolutions adopted at that Con- 
 ference, in their bearings on the history of the Church 
 of this Province, cannot be estimated duly without 
 particular and careful examination of the sub- 
 ject. It is not too much to say that, coupled with 
 the Reports of the Committees appointed under the 
 Conference, those Resolutions present the basis on 
 which our whole Provincial action was grounded. 
 Take for instance. Resolution VIIL — "That, in order 
 to the binding of the Churches of our Colonial Em-
 
 53 
 
 pire, and the Missionary Churches beyond them, in 
 the closest union with the Mother Church, it is 
 necessary that they receive and maintain without 
 alteration the standards of faith and doctrine as now 
 in use in that Church." — (I beg to call attention to 
 the qualifying words " fiozc in use."). — "That, never- 
 theless, each Province should have the right to make 
 such adaptations and additions to the services of the 
 Church as its peculiar circumstances may require : 
 Provided^ that no change or addition be made incon- 
 sistent with the spirit and principles of the Book of 
 Common Prayer, and that all such changes be liable 
 to revision by any Synod of the Anglican Commu- 
 nion in which the said Province shall be represented."* 
 In 1869 the Synod of the Diocese of Grahamstown 
 (fourth Session) formally accepted the foregoing 
 Resolution ; as it also did the principles laid down in 
 the Lambeth Report I., as regards the relations and 
 functions of Diocesan and Provincial Synods ; and 
 those enunciated in Report IV. with reference to the 
 election of Bishops. It further resolved, " That the 
 Synod of this Diocese in the Session of 1867, having 
 referred certain questions of great moment to the 
 Assembly of Bishops at Lambeth, this Synod (1869) 
 thankfully acknowledges the assistance given to it by 
 the reports of the committees of that Assembly, laid 
 on the table by the Bishop." Dean Williams, it is 
 needless to say, was an active and prominent member 
 of all these Synods. The next year (1870) the first 
 full Provincial Synod met at Capetown, and the 
 Province was organised. 
 
 Now, is this a true accouiit of the order of events, 
 or is it not ? If it is, where is the point between 1863 
 and 1870 on which any man alive may put his finger, 
 and say, " Here the members of the Church of England 
 
 * Conference of Bishops of the Anglican Communion holJen at Lambeth, 
 i<cc., 1867, p. 17. 
 
 E 2
 
 54 
 
 in South Africa, having been faithful once, made a 
 new — a schismatical — departure, and " founded a 
 distinct Church ?" It is quite true that between 1863 
 and 1870, mainly in consequence of the decision of 
 the Privy Council in the matter of the Bishop of 
 Natal, a change of view passed over the whole 
 Colonial Church, which influenced its action. The 
 term " Church of England " ceased to mean for the 
 Colonies what we all at one time believed it to mean. 
 But it is not true that Dean Williams attached him- 
 self to a new and distinct religious body when he 
 joined the Provincial Synod of i 870. He went to 
 that Synod a member of the very samerehgious body 
 by which he contracted to be ruled when he took the 
 oath of canonical obedience, and submitted himself to 
 tne Diocesan Synod of Grahamstown " in all things 
 which shall not be contrary to the laws of the United 
 Church of England and Ireland;" i.e.^ as again and 
 again acknowledged, 50 far as those laws are applicable 
 here. Nor can the opposite to this be maintained 
 by any reasoning which will not tend to neutralise 
 the whole principle of consensual contract, and to 
 shake every religious organisation founded on such 
 contracts to their base. 
 
 III. HAS THE DEFENDANT, BY HIS ACTS AND 
 CONDUCT SUBSEQUENT TO HIS APPOINT- 
 MENT, CONFERRED UPON THE PLAINTIFF 
 THE RIGHT WHICH HE SEEKS TO ESTABLISH 
 BY THIS ACTION ? 
 
 The question, if I understand it, is this : — Admit- 
 ting what the Chief Justice declares it " idle " to deny, 
 that Dean Williams, by the part which he took in 
 the Provincial Synod of 1870, became personally sub- 
 ject to its rules and canons, and that he personally
 
 55 
 
 subjected himself to Bishop Merriman's episcopal 
 jurisdiction by the part he took in his election ; — is 
 the Dean thereby estopped from denying the Bishop's 
 rights, on the ground of his not being a lawful Bishop 
 of the Church of England ? The hypothesis is that 
 Dean Williams began in 1865 by being a Rector and 
 Dean of the Church of England in Grahamstown ; 
 that in i 870, without any change or disturbance of 
 titles, office, residence, duties, emoluments, or relation 
 to his flock, oj even to his vestry and churchwardens 
 under the Grahamstown Church Ordinance, the 
 Dean took an active part in founding a separatist and 
 illegal association, cuttir.g himself off thereby, *' root 
 and branch," from the Church of England ; that in 
 1 87 I he further took a prominent part in constituting 
 Bishop Merriman Bishop of the new and separatist 
 association ; that for over eight years, notwithstanding 
 disagreements, he continued to recognise Bishop 
 Merriman under the association as his lawful Bishop ; 
 but that, eventually, having incurred the exercise of 
 discipline under the rules of the new community, he 
 disowned it, and on the strength of his mere unsup- 
 ported word that he did so, returned to the Church 
 of England again, leaving Bishop Merriman behind 
 him. On this hypothesis, I confess I do not see why 
 the Dean should be held to be estopped from doing 
 whatever he likes. I have already anticipated what 
 I believe to be the true answer, by what has been 
 said in the course of other portions of the argument. 
 The maxim " Pacta^ qua contra leges constitutionesque 
 fiunt nullam vim habere^ indubitati jy.ris est^' has, 
 I submit, no bearing on the case. The hypothesis 
 melts away before a full and steady regard to the 
 facts.
 
 56 
 
 IV. ARE THE RESPECTIVE RIGHTS OF THE 
 PARTIES IN ANY WAY AFFECTED BY THE 
 DECISIONS OF THE DIOCESAN COURTS ? 
 
 This inquiry is met by the same considerations 
 that were urged in answer to that immediately pre- 
 ceding it. The hypothesis assumes Dean Williams, 
 being still rightfully and securely possessed of a 
 certain position and income obtained by him as a 
 clergyman of the Church of England, to have 
 become justly amenable to the jurisdiction of a 
 certain ecclesiastical Tribunal representing a distinct 
 and separatist religious body, by union with which 
 he cut himself off " root and branch " from the 
 Church of England. It is as if Cardinal Newman 
 had openly joined the Church of Rome, still con- 
 tinuing to be openly Vicar of S. Mary's, Oxford, 
 and in the uninterrupted and unquestioned enjoy- 
 ment of any other emoluments previously acquired 
 by him in the Church of England. The hypothesis 
 must be that he subsequently renders himself liable 
 to discipline in the Church of Rome, and under that 
 system is suspended, with loss of income, and is 
 otherwise sentenced. But the Church of Rome has 
 bestowed on him no office ! It cannot take away 
 what it never gave ; nor can it touch the position 
 of the Vicar of S. Mary's, which has to do with an 
 altogether different community. The hypothesis 
 involves so many contradictions and impossibilities 
 that no arrangement of language can give consis- 
 tency to it. My answer is that, as it appears to 
 me, it is at variance with the facts, and that the 
 Diocesan Tribunal which sentenced Dean Williams did 
 truly represent the authority of identically the same 
 religious body, whatever may be its correct designa- 
 tion, to which Bishop Cotterill originally appointed 
 him.
 
 57 
 
 LEGISLATION RECOMMENDED AS THE EFFECTUAL 
 REMEDY FOR OUR TROUBLES. 
 
 I pass by some other minor objections to the 
 plaintiff's claims, raised by the Chief Justice, which 
 were not argued, and proceed to consider briefly the 
 advice of the Court that we, in any case, betake our- 
 selves to the Legislature, Imperial or Colonial, for our 
 only true and permanent remedy. " If the Privy 
 Council," the Chief Justice says, "" should see its way 
 clear to decide in the plaintifl-'s favour, I, for my 
 part, shall not regret the result. But whatever course 
 may be taken in respect of this action, I feel bound 
 to express my individual opinion as to the necessity 
 of legislation, whether Imperial or Colonial, to regulate 
 the relative rights of the Church of South Africa 
 and the Church of England, in respect to their endow- 
 ments under private deeds of trust, and to legalise 
 the transfer to the Church of the Province of South 
 Africa of property secured by the law for the uses of 
 the Church of England, in those cases in which there 
 has been acquiescence for a certain length of time, or 
 where a majority of the congregation consent to the 
 transfer." And Mr. Justice Smith says, " I have a 
 firm conviction that nothing short of an Act of 
 Parliament can finally and satisfactorily settle the 
 whole question of property. I strongly advise the 
 Church of Sourh Africa to modify their constitution 
 and canons, and to apply to Parliament." 
 
 For my own part, 1 adhere to the opinion which I 
 expressed officially to Governor Sir Henry Barkly 
 for transmission to the Secretary of State, supported 
 by the present Chief Justice when he was Attorney- 
 General, in October, 1873, ^^^^ ^^"^ -^^^ 3 o^ ^^7 3* 
 we have all the legislation that we require. It must 
 be borne in mind, however, that that Act is applic- 
 able to us only as an Episcopal, not as a Presbyterian
 
 58 
 
 or Congregationalist body. Episcopacy means not so 
 many groups of independent congregations^ each group 
 or congregation taking for its Bishop whom it will, or 
 can procure, but a number of territorial divisions called 
 Dioceses, each under its own Bishop, or a number of 
 Provinces, each including a number of Dioceses, and 
 under its own Metropolitan, through whom alone all 
 the par:s and members of any one Diocese or Province 
 have visible communion with the rest of the Church. 
 On this foundation the Lambeth Conference of 1878 
 took its stand, laying down, as primary principles of 
 Church order necessary for the maintainance of union 
 among the Churches of our Communion : — (i.) 
 " That the duly certified action of every national or 
 particular Church, and of each ecclesiastical Province 
 (or Diocese not included in a Province), in the 
 exercise of its own discipline, should be respected by 
 all the other Churches, and by their individual 
 members. (2.) That when a Diocese, or territorial 
 sphere of administration, has been constituted by the 
 authority of any Church or Province of this commu- 
 nion within its own limits, no Bishop or other 
 clergyman of any other Church should exercise 
 his functions within that Diocese without the 
 consent of the Bishop thereof. (3.) That no 
 Bishop should authorise to officiate in his Diocese 
 a clergyman coming from another Church or 
 Province, unless such clergyman present letters tes- 
 timonial, countersigned by the Bishop of the Diocese 
 from which he comes."""' Among the Churches claim- 
 ing to be thus united are " the Church of England, 
 and the Churches plantei by her in India, and the 
 Colonies," including the Province of South Africa. 
 Now, the principles involved in these terms of union 
 and intercommunion are fundamental to the idea of 
 
 * Co-)fjr;;nce of Bishops, &c., &:c , holJen at Lambeth, July, 187S, pp. 12 
 and 13.
 
 S9 
 
 Episcopacy. In them the strength of t piscopacy Hes. 
 No property arrangements can be accepted except 
 such as are subordinate to them. If our property, 
 all or any of it, is to be wrested from us on the 
 grounds advanced by the recent Judgment, be it so. 
 We can never consent to divide our spiritual heritage 
 of order and mission, derived to us from Christ 
 through the Church of England, with a nominal 
 Church of Englandism founded in a repudiation of 
 the only Episcopacy which the Church of England 
 can supply to it, or recognise. 
 
 CONCLUDING REMARKS. 
 
 To what has been said, chiefly in answer to argu- 
 ments not deemed conclusive, much more might be 
 added in the way of positive proof of the loyal spirit 
 in which our Provincial organisation has been built 
 up. Every instance in which we are supposed to 
 have exceeded our due liberty as a voluntary body 
 has been carefully noted against us. It is remarkable 
 that no regard seems to have been paid to the evidence 
 afforded by our declaration of Fundamental Principles 
 and the Articles of our Constitution, as well as by 
 our Rules and Resolutions, of our hearty and fixed 
 resolve to abide in the closest spiritual and doctrinal 
 union and visible communion with our dear Mother 
 Church of England that with God's blessing and in 
 the nature of the case is possible. We have more 
 than anticipated, by the terms of our incorporation 
 as a Province, all that the late Lambeth Conference, 
 comprising a hundred Bishops, in 1878, declared to 
 be in that regard necessary.* So far as the Judg- 
 
 * Report of Committee on the best mode of maintaining union among the 
 various Churches of the Anglican Communion. Conference of Bishops, July, 
 1S7S, p. 10, &c.
 
 6o 
 
 ments of the Privy Council, or the instructions of 
 the Gcrvernment, based on the opinions of the law- 
 officers of the Crown,* have marked out our course 
 for us, we have scrupulously followed it The Rolls 
 Judgment decided the single point that the annual 
 income of the fund appropriated for the endowment 
 of the Bishopric of Natal should be paid to Bishop 
 Colenso. But, as Professor Bernard says, "No 
 court can decide a question not brought before it ; 
 nor can language the most laboriously positive 
 transform a dictum into anything more than an 
 expression of opinion. "f Lord Romilly's con- 
 clusion followed by necessary . sequence that 
 of the Privy Council. The trains of reasoning by 
 which those two conclusions were respectively obtained 
 have been pronounced by no less distinguished a 
 lawyer than Professor Bernard to be in some principal 
 particulars irreconcileable. Successive Governments, 
 apparently without hesitation, have adopted the 
 decision of the Privy Council in <-he matter of the 
 Bishop of Natal, together with the reasoning that led 
 up to it. The Colonial Church has had no option but 
 to do the same. The task laid on us has been to 
 determine how far the laws of the Church of England 
 are applicable to our situation. We claim to have 
 done our best to fulfil this task dutifully and honestly. 
 We have not interpreted our duty as the Supreme 
 Court has interpreted it for us. But it has not been 
 shown that we have broken any law ; it might have 
 been shown that there is an Imperial Act (the Colonial 
 Clergy Act, 1874), which is from first to last a 
 running recognition of the status of the Colonial 
 Church, as this and other Colonies now exemplify 
 it. That Act would appear to be a point-blank 
 
 * Correspondence between Duke of Newcastle and Bishop of Capetown, 
 1S63-4. 
 
 -J- Remarks, &c., p. 5.
 
 6i 
 
 confutation of the Colonial Church of Englandism 
 which the late Judgment upholds. The conditional 
 status which it assigns to Colonially-ordained Clergy- 
 men — Clergymen ordained Deacon or Priest by 
 Bishops such as Bishop Merriman, — at once defines 
 what such Clergymen are not, compared with Clergy- 
 men ordained by the Bishop of a Diocese in England, 
 and what such Clergymen are^ compared with what 
 their position would be were they separatists. It were 
 needless to say that the status thus assured to this 
 Church by the Imperial Legislature is accepted, as of 
 course, by the whole English Episcopate. Can a 
 Colonial Law-Court over-ride an Imperial Act ? I should 
 be surprised to hear that it could. Add to this, that 
 there are ties, binding communities together, that are 
 stronger than human laws. We arc bound, as we be- 
 lieve, to our dear Mother Church of England by linlcs 
 which Parliaments could never have created, and which 
 no law-courts can dissolve. When at the Wolver- 
 hampton Congress in 1867, in the course of a speech 
 by Bishop Selwyn, one who was present interjected, 
 *' You have cut the painter !" " No," said the great 
 Bishop, turning to the speaker, " we have not cut the 
 painter ; it has parted of itself, and we are occupied 
 now in forging a better cable ; — like that invisible and 
 immaterial bond by which the planets are anchored to 
 the sun ; — We are declaring, one and all, that we have 
 not any wish to change or alter the Articles and For- 
 mularies of our Mother Church."* 
 
 We may indeed be shown to have built a stone 
 here and there into our rising walls less wisely than 
 could have been wished. If so, let us, when the 
 fitting moment comes, lay heads and hearts together 
 to dress it into shape, or substitute a better for it. 
 The reputation of our Chief Justice, as an upright 
 
 * Life of Bishop Selwyn, Vol. II., p. 235.
 
 62 
 
 Tudo-e. is not so slender as that he cannot well afford 
 to be told that he has in some respects misunderstood 
 us, and our position. We can equally well afford to 
 do ao^ain, what we have cheerfully done before, — 
 frankly acknowledge, and dutifully repair, any mistake 
 which competent authority may finally declare us to 
 have made in mixed matters affecting our relation to 
 the law of the land.
 
 APPENDIX. 
 
 [ A. ] 
 
 The Ecclesiastical Judgment. 
 SUPREME COURT. 
 
 Thursday, August 26th, 1880. 
 
 MERR.'MAN C'l. WILLIAMS. 
 
 The Chief Justice delivered Judgment in this case as 
 follows : — 
 
 This is a suit instituted by the Right Reverend Bishop 
 Merriman against the Very Reverend Dean Williams, praying 
 for a declaration of the plaintiff's rights as Bishop of Grahams- 
 town, in respect of the Church of S. George in that city, and 
 for an interdict to restrain the defendant from intcrlcring with 
 those rights, and from hereafter performing any ecclesiastical 
 functions in the said Church or elsewhere within the limits of 
 the Diocese of Grahamstown. The grounds of action are fully, 
 if not distinctly, stated in the declaration, and may be thus 
 bricflv summarised : that the Diocese of Grahamstown was 
 established by Royal Letters Patent in November, 1853 ; that 
 the plaintiff as the Bishop of Grahamstown is lawfully invested 
 with the indelible characteristics of the Episcopate, and possesses 
 a legal status as such Bishop, save as to coercive jurisdiction ; 
 that under the said letters patent, the Church of S. George, 
 in the city of Grahamstown, was declared to be the Cathedral 
 Church and See of the then Bishop of Grahamstown and his 
 successors in office ; that the plaintiff as Bishop has the right, 
 and, until prevented by the defendant, has exercised the right 
 of officiating and performing all ecclesiastical functions within 
 the said Church ; that the defendant having been nominated 
 Colonial Chaplain at Grahamstown, did, on the 20th October, 
 1865, take and subscribe the oath of Canonical Obedience to 
 the then Bishop and his successors in office, and bind himself to 
 submit to the rules and regulations of the Diocesan Synod of 
 Grahamstown in all things not contrary to the laws of the then 
 United Church of England and Ireland ; that thereafter the 
 defendant entered upon the functions of Dean of the said
 
 64 
 
 Cathedral Church ; that the defendant has expressly and by 
 implication subjected himself to certain rules and regulations 
 framed by the Provincial Synod of the Church of the Province 
 of South Africa for enforcing discipline in the said Church ; 
 that by the Canons of the said Church the Diocesan Court of 
 Grahamstown is a tribunal competent to determine whether the 
 rules of the said Church have been violated by any of the 
 Clergy of the Diocese of Grahamstown or not, and what will be 
 the consequence of such violation ; that the defendant has been 
 duly tried before such a tribunal for disobedience of a lawful 
 inj unction conveyed to him not to hinder the Bishop from preaching 
 in the said Cathedral on the 27th April, 1 879 ; that by sentences 
 passed upon the defendant by the said Court on the 5th of 
 August and 13th of November respectively, he was suspended 
 from his office of Priest with total loss of all emoluments 
 derived from any office held by him as dignitary or Priest of the 
 said Church within the Diocese of Grahamstown ; and that, 
 inasmuch as the defendant has neither submitted himself to the 
 sentences, nor appealed to the Appellate Court provided for by 
 the Canons, the plaintiff is now entitled to obtain from this 
 Court a judgment which shall enforce the sentences of the 
 ecclesiastical tribunal and declare the rights of the plaintiff and 
 defendant respectively in respect of the said Cathedral. The 
 defendant does not deny that the plaintiff is a duly consecrated 
 Bishop of the Province of South Africa, nor docs he deny that 
 the Church of S. Cieorge is the Cathedral Church of the 
 Diocese of Grahamstown, but he contends that the plaintiff is not 
 the Bishop of Grahamstown in terms of the letters patent, 
 which established the Bishopric ; that the tranfer deeds of the 
 land upon which the Church stands do not support the plaintiff's 
 title, and that his claims are inconsistent with the provisions of 
 certain public colonial statutes. In the next place the defen- 
 dant denies that he has submitted himself to the Canons of the 
 Church of South Africa, but maintains that even if he had so 
 submitted himself no tribunal constituted under those Canons 
 could lawfully deprive him of his incumbency as Rector, nd of 
 the Deanery, which he held independently of that Church ; 
 and, lastly, he contends that, even if the tribunal which 
 sentenced him possessed the ^powers which it claimed and 
 purported to exercise, yet, inasmuch as that tribunal was not 
 properly constituted in terms of the Canons themselves, this 
 Court ought not to give effect to its decrees. It is to be 
 regretted that the pleadings are not so framed as to raise more 
 distinctly ihan they do the real issues which the Court has to 
 decide. The declaration, relying wholly upon the sentences 
 of the Diocesan Court, prays not only for an enforcement of
 
 65 
 
 those sentences, but also for a declaration of the rights of the 
 parties in respect of the Cathedral quite independently of those 
 sentences, and the pleas do not merely traverse the rights 
 claimed by the plaintiff under the sentences, but they put in 
 issue every other right claimed by him. It is sufficiently 
 clear, however, from the pleadings, if taken in connec- 
 tion with the facts disclosed in the evidence and with 
 the argument of counsel, that the real subject of conten- 
 tion between the parties is not the ecclesiastical status in the 
 abstract of cither party, nor their personal relation towards 
 each other, but the legal status of the plaintiff as well as the 
 defendant in respect of the Cathedral Church of Grahamstown, 
 under as well as independently of the decisions of the Diocesan 
 Tribunal. It will be necessary then for the Court, in order to 
 arrive at a satisfactory determination in this case, to consider, 
 first, what are the rights of the plaintiff as a Bishop of the 
 Church of the Province of South Africa, in relation to the 
 Church of S. George. In the second place, what are rights of 
 the defendant in respect of the same Church as Rector and 
 Dean. Thirdlv, whether the defendant, by his acts cr conduct, 
 has conferred on the plaintiff any rights capable of being en- 
 forced in this action, which but for such acts or conduct the 
 plaintiff would not have enjoyed. Fourthly, whether, the 
 respective rights of the parties are in any w-ay affected by the 
 decisions of the Diocesan Court. And, lastly, whether this 
 Court, having regard to the form of the pleadings, to the facts 
 disclosed, and the rights ascertained in this case, and to the 
 established practice of this Court, can give the plaintiff any 
 portion of the relief he asks for in his declaration. 
 
 I. WHAT ARE THE PLAINTIFF'S RIGHTS AS A 
 BISHOP OF THE CHURCH OF THE PROVINCE 
 OF SOUTH AFRICA .? 
 
 Before considering these questions, it will be convenient that 
 I should briefly state the facts which led to the present un- 
 fortunate dispute. Until the year 1847, there existed no 
 provision for the performance within this Colony of Episcopal 
 functions by Bishops of the Church of England, but a clause 
 was usually inserted in the Governor's Commission giving him 
 " thf power of collating to benefices, granting licenses for 
 marriage and probates of wills, commonly called the Office of 
 Ordinary." Colonial Chaplains appointed by the Imperial 
 Government, and, in most cases, ordained by the Bishop of 
 London, under the Imperial Act 59 Geo. III., c. 60, ministered 
 to the spiritual wants of members of the Church of England
 
 66 
 
 residing in garrison towns, and in a few other towns in which 
 no troops were stationed. Among the parishes for which a 
 Colonial Chaplain was thus appointed was that of Grahamstown, 
 which was also a garrison town. The Colonial Chaplain was 
 always attached to and officiated in the Church of S. George. 
 The site on which the Church stood belonged to the Crown, 
 but by Ordinance No. 2 of 1839 ^^^ administration and 
 management of all matters connected with that Church were 
 entrusted to a Select Vestry, and two Churchwardens elected 
 under the provisions of that Ordinance. As the Clergy and 
 members of the Church of England in this Colony increased in 
 number, the want of Episcopal superintendence was more and 
 more felt, until, in the year 1847, the Colony and its dependen- 
 cies were by letters patent under the Great Seal constituted a 
 Bishop's See and Diocese, and the Reverend R. Gray was 
 thereby appointed, and was subsequently consecrated by the 
 Archbishop of Canterbury as such Bishop. In June, 1 849, and 
 again in November, 1850, grants of the land on which the 
 Church stood and the neighbouring premises were made by the 
 Crown to the Right Reverend Bishop Gray upon the conditions 
 which I shall afterwards mention. In i 853, Bishop Gray resigned 
 the office and dignity of Bishop of Capetown, whereupon the 
 original Diocese of Capetown was divided by the Crown into 
 three distinct and separate Dioceses, viz., those of Capetown, 
 Grahamstown, and Natal On the 23rd November, 1853 
 (before the issue of fresh letters patent to the Bishop of 
 Capetown), letters patent were issued erecting and constituting 
 the See and Diocese of Grahamstown, and directing the Arch- 
 bishop of Canterbury to ordain and consecrate the Rev. John 
 Armstrong to be Bishop of the said See and Diocese. The 
 terms of these letters patent, so far as they affect the present 
 case, will herrafter be referred to. Bishop Armstrong was duly 
 consecrated, and shortly afterwards took possession of his See. 
 On the 50th July, i860, the Act No. 30 of i860 was passed, 
 authorising the Bishop of Capetown to transfer to the Bishop 
 of Grahamstown any of the lands then vested in the former and 
 his successors, but situate within the Diocese of Grahamstown, 
 subject to the trusts mentioned in the grant ; that is to say, 
 that the land thereby granted should for ever thereafter be 
 used for ecclesiastical purposes in connection with the Church 
 of England, and for no other purpose. In 1863 the first 
 Diocesan Synod of Grahamstown was held, and in 1865 the 
 defendant was appointed to the offices of Rector of S. 
 George's Church, and Dean, in the manner I shall hereafter 
 explain. In 1870 the first Provincial Synod was held, and 10 
 the Constitution, Canons, and Resolutions I shall frequently
 
 6? 
 
 have to refer. On the first June, 187 1, Bishop Cottcrill, by 
 his power of attorney, authorised the transfer of the land in 
 question to the Right Rev. Bishop Cotterill, Bishop of 
 Grahamstown, or the Bishop of Grahamstown for the time being, 
 the Venerable Archdeacon White, Archdeacon of Grahamstown, 
 or the Archdeacon for the time being, the Registrar of the 
 Diocese, and the Treasurer of the Board for the Endowment 
 Fund of the See of Grahamstown, subject to the trusts men- 
 tioned in the previous transfer deeds, and on the 17th June 
 transfer was passed accordingly. In the same year Bishop 
 Cotterill resigned his office and dignity as Bishop of Grahams- 
 town, and on the 21st of July the then Bishop of Capetown 
 issued a mandate addressed to the defendant, authorising and 
 commanding the Clergy and Laity of the vacant Diocese who 
 may be entitled to vote in terms of Canon 3 of the Church 
 of the Province of South Africa to proceed to the election 
 of Bishop. In obedience to the mandate, the defendant sent 
 a circular to the Clergy and Lay Representatives of the Diocese 
 of Grahamstown, appointing a time and place for a meeting to 
 elect a Bishop of Grahamstown. At the meeting, over which 
 the defendant presided, the plaintiff was elected Bishop, and 
 he was thereafter duly consecrated as such Bishop. From that 
 time until 1875 no public dispute appears to have arisen 
 between the parties ; but in October of that year the defendant 
 first publicly announced his intention of retiring from his con- 
 nection with the Church of the Province of South Africa. He 
 had been directed to notify in the Cathedral that a Provincial 
 Synod would be held in Capetown on the 25th January, 1876, 
 and he now gave the required notice, but at the same time 
 read his own protest to the effect that such notice was given by 
 him without prejudice to the Cathedral or to the rights and 
 position of members of the Church of England in this Colony, 
 The Provincial Synod was accordingly held, but defendant did 
 not attend. From that time until December, 1878, disputes of 
 various kinds arose between the plaintiff and defendant, the 
 chief subject of the contention being the right of the plaintiff to 
 preach at his option in the Cathedral. Matters were brought to 
 a crisis in April, 1879. On the 25th of that month the Regis 
 trar of the Diocese addressed an official letter to the defendant, 
 formally admonishing him not to hinder the plaintiff from 
 preaching on the following Sunday. On that day the plaintiff" 
 attended the Cathedral with the object of preaching the sermon, 
 but instead of giving out a hymn according to custom, imme- 
 diately before the sermon, the Dean gave out the text of his ser- 
 mon and began to preach. The plaintiff protested against the 
 defendant's conduct and left the Cathedral. Articles of present- 
 
 F
 
 68 
 
 mcnt were thereupon presented against him at the instance of 
 Archdeacon White, charging him with several ecclesiastical 
 offences, the chief of which was that of contumaciously and con- 
 temptuously disobeying a lawful requisition not to hinder or 
 prevent the plaintiff from preaching in the Cathedral. A Dioce- 
 san Court was thereupon held under the circumstances, which I 
 shall have to explain more fully hereafter, the defendant was 
 found guilty of contumacious disobedience, and of conduct giv- 
 ing just cause of scandal to the Church, and was sentenced to be 
 suspended from his ministerial functions for the term of one 
 month, and, further, until he should engage not to repeat the 
 offence. He refused to desist from performing his ministerial 
 functions, or to give the engagement required of him, and ac- 
 cordingly, at a subsequent meeting of the Diocesan Court, over 
 ivhich the plaintiff himself presided, sentence was passed on the 
 defendant, excommunicating him from the Church of South 
 Africa. The defendant continued to officiate in the Cathedral, 
 and the present action was the consequence. 
 
 THE LETTERS PATENT. 
 
 Such being the facts of the case, the first question v^^hich natu- 
 rally arises is, What title do they establish in the plaintiff either 
 as Bishop or as Trustee, or in any other capacity in respect of 
 the Church of S. George ? For an answer to this question we 
 arc referred by the plaintiff hiriiself, in his declaration, to the 
 letters patent which founded the Bishopric of Grahamstown. 
 Those letters patent undoubtedly ordain and constitute the 
 City of Grahamstown to be a Bishop's Sec, and the Church of 
 S. George to be the Cathedral Church and See of Bishop Arm- 
 strong and his successors. Bishops of Grahamstown. The sub- 
 sequent letters patent to Bishop Cottcrill arc in precisely simi- 
 lar terms. If therefore the plaintiff can show that he is, under 
 the letters patent, the successor of the first and second Bishop of 
 Grahamstown, he will, as of course, be entitled to all the 
 rights and privileges which they enjoyed in respect of the Cathe- 
 dral Church. If the right of access for the purpose of preach- 
 ing and performing episcopal functions within the Cathedral 
 without or even against the consent of the defendant, is included 
 amongst those privileges, the Court will be bound, in a suit 
 properly instituted for the purpose, to enforce such right against 
 the defendant or any other person interfering therewith. It 
 becomes important therefore to ascertain what provisions are 
 made by both the letters patent for the continued existence of 
 the corporation after the death or resignation of the Bishops
 
 69 
 
 thereby nominated, or, in other words, in what manner and by 
 what process their successors arc to be appointed. Upon this 
 point the terms of the letters patent are clear and unambiguous. 
 " Wc do by these presents expressly declare that the said Bishop 
 of Grahamstown, and also his successors, having been respectively 
 by us, our heirs and successors, named and appointed, and by 
 the Archbishop of Canterbury canonically ordained and conse- 
 crated, according to the form of the United Church of England 
 and Ireland, may perform all the functions peculiar and appro- 
 priate to the office of Bishop within the said Diocese of Gra- 
 hamstown." Now, it is admitted that the plaintiff has neither 
 been named and appointed by the Crown, nor ordained and con- 
 secrated by the Archbishop of Canterbury ; but it is argued that, 
 inasmuch as the Crown had, before the election and consecra- 
 tion of the plaintiff, discontinued the practice of issuing letters 
 patent for the appointment of Bishops in Colonies possessing 
 Representative Institutions, the vacancy caused by resignation of 
 Bishop Cotterill could only be filled by means of a local election 
 and consecration. This argument affords a very good ground for 
 respectfully requesting the Crown to appoint a Bishop for 
 Grahamstown, and issue a license for his consecration by the 
 Archbishop of Canterbury, but it does not in any way strengthen 
 the plaintiff's title under the letters patent. No such application 
 seems to have been made to the Crown by the authorities of the 
 Church of South Africa, nor do I sec how it could have been 
 made consistently with the Canons of that Church, even assuming 
 that the Crown would be willing to accede to the request. It 
 has been assumed throughout the argument that the Crown 
 would not accede to such a request, but it is by no means clear 
 to mc that the Crown has ever declared its irrevocable intention 
 no longer to appoint Bishops for this Colony. It may well be that 
 the Crown will not hereafter issue letters patent for the establish- 
 ment of new Bishoprics in Colonies possessing Representative 
 Institutions, but it does not follow that the Crown would refuse, 
 upon representation made from the proper quarter, to nominate 
 successors to Bishops appointed under letters patent which re- 
 serve this power to the Crown. At all events there is nothing 
 in law to prevent the Crown even now at the eleventh hour 
 from naming and appointing some other person than the plaintiff 
 to be the Bishop of Grahamstown, and if a person so appointed 
 were ordained and consecrated by the Archbishop of Canterbury, 
 his title in respect of the Cathedral — so far as the existing letters 
 patent are concerned, — would be complete. The plaintiff does 
 not deny the right of the Crown to create the body corporate, 
 known as the Lord Bishop of Grahamstown, and to constitute him 
 and his successors to be a perpetual corporation ; but if the letters 
 
 F 2
 
 70 
 
 patent were valid to create a perpetual corporation, they must 
 have been equally valid to regulate the course of succession. 
 The power of the Crown to ordain the Church of S. George to 
 be the Cathedral Church and See of the Bishop of Grahamstown 
 has been questioned, but I take it that the decision of the 
 Judicial Committee of the Privy Council in the case of Bishop of 
 Capetozvn vs. Bishop of Natal {G Moore, P.C., N.S., 210), is con- 
 clusive on this point. That case has an important bearing upon 
 other parts of this case, as I shall presently proceed to show. 
 The question which then arose was whether the effect of a 
 certain grant made by the Crown to the Bishop of Capetown, in 
 1850, and certain letters patent which founded the Bishopric of 
 Natal, in 1853, was to give the Bishop of Natal the right of 
 access to S. Peter's Church in Petermaritzburg, and the right to 
 perform there all the services which are or ought to be performed 
 by a Bishop in a Cathedral. It appeared that in 1850 the land 
 had been granted to the then Bishop of Capetoivn " and his 
 successors of the said See, in trust for the English Church at 
 Petermaritzburg, and with power and authority to possess the 
 same in perpetuity ; subject, however, to all such duties and 
 regulations as either are already, or shall in future, be established, 
 with regard to such lands." The letters patent to the Bishop 
 of Natal were issued at the same time, and were in the same 
 terms as the letters patent now under consideration. Lord 
 Justice Giffbrd, in delivering the Judgment of the Privy Council, 
 after referring to the three previous cases of Long vs. Bishop of 
 Capetown, in re Bishop of Natal z.r\^ Bishop of Natal vs. Gladstone, 
 proceeded thus : — "Their Lordships think it sufficient for them 
 to say that the following propositions are not at variance with 
 any conclusions which have been arrived at in any one oi^ these 
 cases, have scarcely been disputed, and cannot be successfully 
 controverted, viz., that the letters patent were not wholly void ; 
 that there was, by virtue of the defendant's letters patent of 
 18^7, a corporation as such capable of taking under the grant ; 
 that there was a valid resignation by the defendant (the Bishop 
 of Capetown) of the office held under the letters patent of 1847 ; 
 and that by the two letters patent 1853, of which the plaintift"'s 
 (the Bishop of Natal's) was the earlier, there was a creation of 
 two new corporations, both capable of taking under a grant from 
 the Crovvn, but neither coming within the terms of the grant of 
 1850, and, consequently, not taking an estate under it. The 
 defendant's second patent, if the terms at the end of it be looked 
 to, plainly creates a new corporation. A corporation to be 
 capable of taking an estate under the grant alone must be the 
 corporation described in it, and have existed at its date. Having 
 regard to these propositions, and to the terms of the grant of 1850,
 
 71 
 
 be it remembered, a grant from the Crown 'subject to all such 
 duties and regulations as arc or shall he established with regard 
 to such lands ;' having regard to the fact of Natal being 
 separate from the Cape, to the circumstances and state of the 
 Colony of Natal, and the inception of the Church there, we 
 consider that it was competent for the Crown, in the words of 
 the letters patent of 1853, to 'ordain and declare that the 
 Church in the said City of Pietermaritzburg shall henceforth be 
 the Cathedral Church and See of the said William Colenso and 
 his successors, Bishops of Natal,' and this being so, that the 
 effect of the grant and the plaintift''s letters patent of 1853, 
 was at least, to give the plaintiff the right of access to the 
 Church, the right to ofiiciate there as Bishop, and the right to 
 perform there all the religious services which arc or ought to be 
 performed by a Bishop in a Cathedral, consistently with the 
 laws and usages of the Church of England so far as the same 
 arc applicable to the Church and Colony in question. Their 
 Lordships, founding their Judgment on all these considerations, 
 and having regard also to the former decisions of this committee 
 in the matter of the Bishop of Natal, do not hesitate to state 
 with respect to the defendant, the appellant here, that he had, 
 and has no estate or title as trustee or otherwise, and no right 
 to interfere." With the exception of the circumstance (which 
 does not affect this case) that the districts comprised in the 
 Diocese of Grahamstown are not separate (as Natal is) from the 
 Cape of Good Hope, all the remarks made by the Privy 
 Council in regard to the Sec of Natal are applicable ?nutatis 
 7nuttindis to that of Grahamstown as it existed at the time of 
 Bishop Cotterill's appointment. The grants of the site of 
 the Church and Deanery of Grahamstown made by the Crown 
 to the Bishop of Capetown in 1849 and 1850 arc almost 
 identical in their terms with the grant of the site of S. Peter's 
 in Natal, in 1850 ; the only difference being that in the 
 grants of 1849 ^'^^ terms employed to create the trust are 
 " the land hereby granted shall for ever hereafter be used 
 for ecclesiastical purposes in connection with the Church of 
 England and for no other purpose or use whatever," and 
 the grant of 1850 "the land hereby granted shall be 
 appropriated for ever hereafter for ecclesiastical purposes in 
 connection with the Church of England," instead of the words 
 used in the Natal grant, " in trust for the English Church at 
 Pietermaritzburg." The decision of the Privy Council is 
 therefore a clear authority for the view that, by virture of the 
 grants to the Bishop of Capetown and the letters patent 
 issued to Bishop Cotterill, the latter had the right before 1863 
 to officiate in the Church of S. George's as Bishop, and,
 
 11 
 
 infcrcntially, it is an authority for the position that, but for 
 his letters patent, he would have possessed no such right 
 without the consent of the Incumbent. In the year 1863 the 
 land was transferred to Bishop Cotterill and his successors in 
 office, with the proviso that the land so transferred should be 
 subject to the same trust in all respects after such transfer as it 
 was subject to at the time of such transfer. The insertion of 
 this proviso was required by the ist Section of Act 30 of i860. 
 That Act was passed, as the preamble states, in consequence of 
 doubts which existed whether alienation of Church property 
 could be legally made by the Bishops of Capetown and 
 Grahamstown. These doubts arose, not as to the validity of the 
 letters patent of the then Bishops (for the Act recognised them 
 as Bishops, and as being capable of having legal successors), but 
 as to the power of ecclesiastical corporations to alienate land, 
 except for good cause shown, and with certain cumbrous 
 formalities. Upon this point I need do no more than refer to 
 Mulenbruch's Doctrina Pandectarum, Section 201 : — " Rerum 
 ad pia corpora spectantium alienatio fieri non potest, nisi certis 
 ex causis certisque adhibitis solemnitatibus," At that time it 
 was assumed that the Bishop of Capetown, notwithstanding his 
 resignation of the office held under the lett-ers patent of 1847, 
 had a legal estate in land granted to him in his corporate 
 capacity, after his resignation and before his appointment under 
 the second letters patent. That estate he transferred to Bishop 
 Cotterill and his successors in office. After such transfer. 
 Bishop Cotterill possessed, in addition to the rights which I 
 have already mentioned as vested in him before 1863, an estate 
 in the land recognised and sanctioned by the Legislature of this 
 Colony. That title he could lawfully alienate under the 
 provisions of Act 30 of i860, or he might transmit it to his 
 successors. In 1871 he transferred the land to the Bishop of 
 Grahamstown for the time being and certain other parties 
 mentioned in the transfer. The defendant denies the validity 
 of the transfer, on the ground that the requisite consent was not 
 obtained ; but so long as the transfer, which is a judicial 
 act, stands registered in the Deeds Office, it must be assumed to 
 be valid until judicially set aside. The more important ques- 
 tion upon this point of the case is. Who is meant by the 
 " Bishop of Grahamstown for the time being ?" Here again we 
 can only look at the letters patent — the Charter of Incorporation, 
 if I may so call it — of Bishop Cotterill, and we find that none 
 can be his successor as Bishop of Grahamstown, unless nominated 
 by the Crown, and consecrated by the Archbishop of Canterbury. 
 Clearl}-, therefore, the plaintiff has established no estate or title 
 under the transfer of 1871.
 
 /J 
 
 BISHOP MERRIMAN A SEPARATIST FROM THE 
 CHURCH OF ENGLAND. 
 
 But a stronger and at the same time less technical objection 
 to the plaintiff's title in respect of the Church of S. George 
 still remains to be considered. That Church was founded by 
 and for the members of the Church of England. The grant of 
 the land upon which it stood was made by the Crown to the 
 late Bishop of Capetown, upon the distinct trust that it should 
 for ever thereafter be used for ecclesiastical purposes in connec- 
 tion with the Church of England, and for no other purpose or 
 use whatever. But over and above the private trusts attaching 
 to the Church by virtue of its first foundation, and of the 
 conditions imposed by the Crown, the Statute Law of the land 
 imposes upon those who have the custody of the Church and 
 the administration of its affairs the obligation to hold it in trust 
 for the members of the Church of England in Grahamstown. 
 The 25th Section of Ordinance No, 2 of 1839 enacts that 
 " this Ordinance shall be deemed and taken to be a public 
 Ordinance, and shall be judicially taken notice of by all judges, 
 magistrates, and others without being specially pleaded." The 
 preamble recites that " it is expedient that the inhabitants of 
 Grahamstown, and the parochial limits thereof, being members 
 of and holding communion with the United Church of 
 England and Ireland, as by law established, should be invested 
 with the right and privilege of choosing and appointing, under 
 certain regulations, a Vestry and Churchwardens tor the better 
 and more effectual administration and management of all 
 matters connected with the Church of Grahamstown, called 
 S, George'* Church ; and that the said Vestry and Church- 
 wardens, after having been duly appointed, should possess 
 certain powers and perform certain duties as the same are 
 usually possessed and exercised by such ofKcers, according to 
 the customs and usages of the said United Church of England 
 and Ireland," In. the body of the Act full effect is given to the 
 objects of the Act as recited in the preamble. Only male 
 inhabitants of Grahamstown, who are members of, and hold 
 communion with, such United Church, arc entitled to elect a 
 Vestry, or to be elected as Vestrymen, By the 8th Section the 
 Vestrymen are authorised to adopt or rescind such rules as may 
 to them appear expedient for their guidance in the discharge of 
 their duties, " and also to make such order for the management 
 of the said Church as shall to them seem expedient," but they 
 are expressly forbidden from framing any rules which shall be 
 repugnant to the customs and usages of the United Church of 
 England and Ireland. The i6th Section enjoins the Church-
 
 74 
 
 wardens and the officiating Minister, for the time being, 
 faithfully to administer money contributed for charitable or 
 religious purposes connected with the said Church and 
 Congregation, or to " sec that they be faithfully administered 
 and appropriated in the manner and for the purposes contem- 
 plated and intended by the persons contributing to the same." 
 The 19th Section — clearly having in view the spiritual wants of 
 civil and military authorities, soldiers and poor people resident 
 in Grahamstown, who arc members of the Church of England — 
 enacts that there shall be set apart certain pews for the use of 
 the chief civil and military authorities and officers of the 
 garrison, and an adequate number of free sittings for the use of 
 the troops, and the accommodation of poor people. The 22nd 
 Section enacts that the burials of all persons, according to the 
 rites and ceremonies of the Church of England, shall take place 
 in ground consecrated and allotted to the said Church for that 
 purpose. An objection to the application of this Ordinance, in 
 the present case, has been raised on the ground that the Church 
 of England and Ireland no longer exists, inasmuch as the Church 
 of Ireland has been disestablished, and the union between the 
 two Churches dissolved, by an Act of the Imperial Parliament 
 (32 and 33 Vict. c. 42), but it is a sufficient answer to this 
 objection to say that by the same Act it is provided that enact- 
 ments relating to the said United Church shall be read distribu- 
 tively in respect of the Church of England and the Church of 
 Ireland. 'The 22nd Section of the Ordinance mentions the 
 Church of England alone, and the Ordinance, taken as a whole, 
 sanctions, and by implication directs the setting apart of S. 
 George's Church for the religious worship of members of the 
 Church of England, under the spiritual guidance of Ministers of 
 the Church of England, and according to the laws and usages 
 of the Church of England, so far as they arc applicable in this 
 Colony. Any doubts which might still remain on this matter 
 are removed by the provisions of Act 30 of i860. The first 
 Section of that Act, sanctioning and continuing as it does the 
 terms of the trust created by the grants made by the Crown to 
 the Bishop of Capetown, amounts to a distinct legislative pro- 
 vision that the Church shall be used for ecclesiastical purposes 
 in connection with the Church of England, and for no other 
 purpose or use whatever. It is too late to contend, as has been 
 done in the present case, that no legal identity can exist between 
 the Church of England in South Africa and the Church of 
 England in the Mother Country. That identity has been recog- 
 nised by the two Colonial Statutes just mentioned, and by the 
 decisions of the Privy Council in the cases already quoted, and 
 of the Master of the Rolls, in the case of the Bishop of Natal v?^.
 
 75 
 
 Gladstone {"if L. L. Eq. p. i). In England, no doubt, it is an 
 Established Church, with all the rights and responsibilities of an 
 Established Church ; in this Colony it is a voluntary society, 
 constituted and subsisting bv mutual agreement. It follows that 
 the Church of England in South Africa is not governed by those 
 rules and laws which are inapplicable here by reason of their 
 being confined to the limits of England, or by reason of their 
 being only applicable to an Established Church, but it docs 
 not follow that the two Churches arc separate and distinct. In 
 the case of Long vs. Bishop of Capetown, the Judgment of the 
 Supreme Court, as well as that of the Privy Council, were based 
 upon the assumption that the Church of England in this Colony, 
 over which Dr. Gray then presided as Bishop, was a portion 
 of the Church of England. " We think," said Lord Kingsdown, 
 in delivering the Judgment of the Privy Council, " that the 
 acts of Mr. Long must be construed with reference to the 
 position in which he stood as a Clergyman of the Church of 
 England towards a lawfully-appointed Bishop of that Church, 
 and to the authority known to belong to that ofiicc in England ; 
 and wc jire of opinion that, by the taking the oath of Canonical 
 Obedience to his Lordship, and accepting from him a licence to 
 officiate, and have the cure of souls within the parish of 
 Mowbray .... Mr. Long did voluntarily submit him- 
 self to authority of the Bishop to such an extent as to enable 
 the Bishop to deprive him of his benefice for any lawful cause, 
 that is, for such cause as (having regard to any differences which 
 may arise from the circumstances of the Colony) would authorise 
 the deprivation of a Clergyman by his Bishop in England. Wc 
 adopt the language of Mr. Justice Watermeyer, that, for the 
 purpose of the contract between the plaintiff and defendant, 
 we are to take them as having contracted that the laws of the 
 Church of England shall, though only so far as applicable here, 
 govern both." Lord Romilly, in the case of Bishop of Natal vs. 
 Gladstone, comments, with approval upon the Judgment of the 
 Privy Council, and after a full discussion cf this and other 
 decisions, arrives at the following conclusions : — " Where there is 
 no State religion established by the Legislature in any Colony, 
 and in such a Colony is found a number of persons who arc 
 members of the Church of England, and who establish a Church 
 there with the doctrines, rites, and ordinances of the Church ot 
 England, it is a part of the Church of England, and the mem- 
 bers of it are, by implied agreement, bound by all its laws. In 
 other words, the association is bound bv the doctrines, rites, 
 rules, and ordinances of the Church of England, except so far 
 as any Statutes may exists which (though relating to this subject) • 
 arc confined in their operation to the limits of the United
 
 76 
 
 Kingdom of England and Ireland. Accordingly, upon reference 
 to the civil tribunal, in the event of any resistance to the order 
 of the Bishop in any such Colony, the Court would have to inquire 
 not what were the peculiar opinions of the persons associated to- 
 gether in the Colony as members of the Church of England, 
 but what were the discipline and doctrines of the Church of 
 England itself, obedience to which doctrines and discipline the 
 Court would have to enforce." We may take it then 
 to be reasonably clear that under certain public Statutes 
 of this Colony, as well as under the title deeds affecting the pro- 
 perty, the claims of all persons who assert any ecclesiastical rights 
 in respect of S. George's Church, Grahamstown, must be de- 
 cided according to the laws of the Church of England, so far as 
 they are applicable here, and I proceed to inquire how far the 
 plaintifl-'s claims are recognised by, or consistent with, those 
 laws. It is not alleged on his behalf that he is a Bishop of the 
 Church of England, but it is contended that by virtue of his 
 election and consecration he " is lawfully invested with the in- 
 delible characteristics of the Episcopate," and that as Bishop, "he 
 has the right of officiating and performing all ecclesiastical func- 
 tions within the said Cathedral Church." It is clear, however, 
 that his episcopal capacity alone would not confer upon him this 
 right, and we are therefore bound to ascertain by what religious 
 body he was appointed and consecrated as Bishop, and entrusted 
 with the charge of the Diocese of Grahamstown. That religious 
 body is admitted to be the Church of the Province of South 
 Africa. If that body is a part or branch of the Church of Eng- 
 land, and as such entitled to appoint Bishops of Dioceses of the 
 Church of England in South Africa, this Court would be bound 
 to recognise its rights as against all members of the Church of 
 England in the Diocese who interfere with them. If it is not a 
 part or branch of the Church of England, it is difficult to see 
 upon what grounds this Court can be asked to impose its Bishop 
 upon a congregation, consisting of members of the Church of 
 England, in respect of a Church which the public law of the 
 land has devoted to " Ecclesiastical purposes in connection with 
 the Church of England." We are, therefore, forced into the 
 inquiry whether the Church of the Province of South Africa is a 
 part or branch, or in any way legally identical with the Church 
 of England ; an inquiry which I, for my part, would gladly have 
 avoided. The designation which it has assumed is of some im- 
 portance, but it is not decisive upon the question. Besides, it 
 must be borne in mind that the preliminary resolution passed by 
 the Provincial Synod of 1870 expressly declared that the title 
 of the " Church of the Province of South Africa " is not intended 
 to exclude other titles (such as English or Anglican Church),
 
 77 
 
 but is used to cxprcs? the fact that the whole Church thus ex- 
 hibited is united in this provincial organisation, through wliich it 
 is connected with other Churches of the Anglican Communion 
 and with the Church of England in particular. A more 
 important departure from the laws of, first, the Church of 
 England, is to be found in the following proviso of the Article 
 of the Constitution of the Church of South Africa : — " Pro- 
 vided that in tlie interpretation of the Standards and 
 Formularies, the Church of this Province be not held to be 
 bound by decisions, in questions of Faith and Doctrine, or in 
 questions of discipline relating to Faith or Doctrine, other 
 than those of its own Ecclesiastical Tribunals, or of such other 
 Trihunal as may be accepted by the Provincial Synod as a Tri- 
 bunal of Appeal." No such Tribunal of Appeal appears to 
 have been accepted, but the 9th Clause of Canon 22 provides 
 that " should a Spiritual Tribunal be hereafter constituted in ac- 
 cordance with the provisions contained in Report II. of the 
 Lambeth Conference, or by any future General Synod of the 
 Churches of the Anglican Communion, appeal from the sentence 
 of the Provincial Court, in a question of Faith or Doctrine, may 
 be carried to such Tribunal, or if three Metropolitans of the 
 Anglican Communion unite in requiring that the case or 
 any portion thereof shall be re-heard or reviewed, it shall be so 
 re-heard or reviewed." It is clear, therefore, that the jurisdic- 
 tiction of the Queen in Council in the interpretation of the 
 " Standards and Formularies in questions of Faith and Doctrine" 
 is not recognised by the Church of South Africa, and as if to 
 leave no doubt upon the matter, another Canon (the 30th) em- 
 phatically declares " that if any question should arise as to the 
 interpretation of the Canons or Laws of this Church, or of any 
 part thereof, the interpretation shall be governed by the general 
 principles of Canon Law thereto applicable." Now, we are 
 not here concerned with the advisability or otherwise of having 
 questions of Faith and Doctrine decided by a temporal Court of 
 the realm. It is not difficult to understand the unwillingness of 
 the founders of the Church of South Africa, whose acts had not 
 always met with the approval of the Judicial Committee of the 
 Privy Council, to exclude the jurisdiction of that Court, and to 
 establish their owh Ecclesiastical Tribunals. Be that as it may, 
 in the construction of Canons, Articles of Religion, or Formularies 
 the Judicial Committee is guided, not by the general principles 
 of Canon Law, but by the laws of England. In support of this 
 statement I need only refer to one passage in the judgment of 
 the Privy Council in the case of Williams vs. Bishop of Salisbury 
 (2 Moore P.C., No. 8,, p. 424) : — " Our province is on one hand 
 to ascertain the true construction of those articles of religion and
 
 78 
 
 formularies referred to in each charge according to the legal rules 
 for the interpretation of Statutes and written instruments ; and, 
 on the other hand, to ascertain the plain grammatical meaning of 
 the passages which are charged as being contrary lo, or inconsis- 
 tent with, the doctrine of the Church, ascertained in the man- 
 ner we have described." But the first article of the Constitution 
 of the Church of the Province cf South Africa contains another 
 proviso, which may hereafter lead, if it has not already led, to a 
 serious departure from the doctrines of the Church of England. 
 The proviso is, "that nothing herein contained shall prevent the 
 Churchof this Province from accepting, if it shall so determine, any 
 alterations in the formularies of the Church (other than the Creeds) 
 which may be adopted by the Church of England or allowed byany 
 General Synod, Council, Congress, or other assembly of the 
 Churches of the Anglican Communion." The consequence is that 
 no alteration in the formularies of the Church of England, other 
 than the Creeds, will be binding upon the Church of South Africa 
 until accepted by it ; and as to the Creeds, if any of them, such 
 as the Athanasian Creed, should hereafter be rejected by the 
 Mother Church, it would be impossible for the Church of South 
 Africa, with its present Constitution, to consent to such rejection. 
 Here again I can quite understand the unwillingness of the 
 Church of South Africa to be bound by laws of the Imperial 
 Parliament, in the election of the members of which they have 
 no part ; but, on the other hand, if it desires to have all the ad- 
 vantages of a perfectly free and independent Church, it cannot 
 claim to be part of the Church of England, and as such entitled 
 as of right to the endowments devoted to that Church in this 
 Colony. Nor can the argument of want of representation be 
 carried too far, for even in temporal affairs the Imperial Parlia- 
 ment retains the power of legislating for the Colonies, none of 
 which send representatives to that Parliament. Coming next 
 to the appointment of Bishops, we find in the 3rd Canon elabo- 
 rate rules laying down the mode of election. In none of 
 them is any licence, mandate, or consent of the Crown or its 
 representative in the Colony required ; in none of them is the 
 Crown or its representative even mentioned. It was said at 
 the bar that the Crown has refused to have anything to do with 
 the appointment of Bishops in the Colonies, and in support of 
 this statement a speech of a Secretary of State in the House of 
 Commons was read ; but I am not satisfied from what has been 
 stated, or from the speech, that the Crown would not, if the 
 religious wants of members of the Church of England in this 
 Colony were fully represented to it, consent to issue its mandate 
 for election or appointment of Bishops of that Church in this 
 Colony. As I stated before, no such representation appears to
 
 79 
 
 have been made ; at all events the Constitution and Canons do 
 not allege the refusal of the Crown as a reason for excluding 
 the cooperation of the Crown, On the contrary, if we arc to 
 judge from the 15th resolution of the Provincial Synod of 1870, 
 tha possession of letters patent by the then Bishops appears to 
 have been considered a hindrance rather than an aid to the 
 development of the Colonial Church, and the question appears 
 to have been discussed whether their Sees under letters patent 
 ought not to be resigned. The decision, which was in a quali- 
 fied negative, was in the following terms : — " That this Synod, 
 having absolute confidence in the integrity of the existing Bishops 
 of this Province, and being assured that legal obligations arc 
 not needed to secure their obedience to Synodical Acts, con- 
 stitutions, or rules, to which they have themselves been con- 
 senting parties, is of opinion that the resignation of their Sees, 
 as held under lattcrs patent, would, for the present, be inex- 
 pedient." Neither the Synod of 1870, nor that of 1876, was at- 
 tended bv the Bishop of Natal, whose Diocese lies within the 
 Province of South Africa, as defined by the 24th Article of 
 Constitution. That he was expressly excluded is clear from 
 the 3rd sub-section of this article : " By the Bishops of the 
 said Dioceses are meant the Bishops whose names are set forth 
 in Schedule C hereto annexed, or those persons who shall here- 
 after hold the Bishoprics set forth in Schedule B, according to 
 the rules prescribed by the Provincial Synod, for determining 
 the succession and appointment to Bishoprics in this Province ; 
 and bv Bishops of this Province are meant the Biihops of the 
 said Dioceses, and all others who are and shall be recognised as 
 Bishops of the Province by the Provincial Synod." Among the 
 Bishops mentioned in Schedule C is the Right Rev. William 
 Kenneth Macrorie, Bishop of Maritzburg, and in Schedule B 
 his Diocese is said to be that of Maritzburg or Natal, being the 
 Colony of Natal. But it has been decided by the Supreme 
 Court of Appeal for the Colonies, as well as by the Master of 
 the Rolls, that Bishop Colenso is Bishop of Natal, so far as 
 the Church of England is concerned. By what process of 
 reasoning then can a Church, which excludes from its Commu- 
 nion and from its Provincial Synods a Bishop of the Church of 
 England, having a Diocese within the Province, claim to be part 
 and parcel of the Church of England ? The difficulty of find- 
 ing an answer to this question becomes still greater when wc 
 bear in mind that instead of the lawful Bishop of Xatal, the 
 Bishop of Maritzburg, who holds no appointment from the 
 Crown, and whose Diocese is coterminous with that of Bishop 
 Colenso, is admitted and recognised as a member of the Pro- 
 vincial Synod of the Church of South Africa, Either this
 
 8o 
 
 Church refuses to recognise the law of the land as expounded by 
 the Supreme Tribunal of Appeal (a supposition which I cannot 
 for one moment entertain), or it has separated itself root and 
 branch from the Church of England. Let me not be misunder- 
 stood upon this matter. I do not for an instant presume to 
 find fault with the course which the Church of South Africa 
 has pursued to secure its freedom from external control. But 
 I do say this, that if the Church has separated itself from the 
 Mother Church, let it not claim, as of right, endowments 
 which have been secured for members of the Church of Eng- 
 land by private trusts as well as by the public law .of the land. 
 Upon every principle which regulates the relations of religious 
 bodies towards each other, the Church of South Africa seems to 
 be separate and distinct from the Church of England, and no 
 authority appears to mc to be required in support of this view. 
 If authority were wanting, I need only refer to the Judgmen 
 of the Master of the Rolls in the case which I have alread^ 
 mentioned. I know that that Judgment has been subjected t 
 much adverse criticism in some quarters, nor am I prepared to 
 accept every one of the dictn there employed, but the decision 
 itself has not been appealed against, nor have the principles, 
 upon which the Judgment was founded, so far as I am 
 av/are, ever been overruled. It was necessary for the Master 
 of the Rolls to decide what was the real status of Bishop 
 Colenso as a Bishop of the Church of England in Natal, and for 
 that purpose to distinguish between the condition of the Church 
 of England and other voluntary religious societies in Natal. 
 " That any number of persons," he said, " if they so pleased, 
 might, though holding the doctrines of the Church of England, 
 reject, either wholly or in part, the discipline and government of 
 the Church, though they preserved still the creed, faith, and 
 doctrines of the Church of England, is unquestionable. Such 
 an association might elect their own Bishop ; they might divide 
 the district in which they reside into Sees, and elect a Bishop 
 for each ; they might parcel the district out into parishes and 
 appoint a minister to officiate in each parish ; all this they might 
 do, and all this would be perfectly legal, and all this would be 
 binding on the members of thg association who assented to it ; 
 as it is now in the Episcopal Church in Scotland, which is not, 
 and by the Act of Union is prohibited from being, a part of the 
 Church of England, and in which the Crown is prohibited from 
 appointing or nominating any Bishop. If dissensions arose 
 among the members of such a Church, they must have recourse 
 to the civil tribunals ; but when they did so, the question would 
 be tried by their own rules and ordinances, which would have to 
 be proved by the evidence in the usual manner. But this
 
 8i 
 
 association would not be a branch of the Church of England, 
 although it might call itself in union and full communion with it. 
 By the law of the Church of England the Sovereign is the head 
 of the Church ; and in substance (for the conge d'elire is nothing 
 more than a form) no Bishop can be lawfully nominated or ap- 
 pointed except by the Sovereign, nor, as I apprehend, could any 
 person be legally consecrated a Bishop of such Church unless by 
 the command of the Sovereign." It will be observed that, for 
 the purposes of the present case, it is not necessary to adopt the 
 reasoning of Lord Romilly in its entirety, for the Constitution and 
 Canons of the Church of South Africa contain, as I have already 
 endeavoured to show, other and more important points of depar- 
 ture from the Church of England than those which have been 
 suggested by him. And not only do these Canons depart from 
 the general laws of the Church of England, but some of them 
 appear to infringe upon the special laws made by the Colonial 
 Legislature for the management of S. George's Church. Thus 
 we find that the persons indicated by the Ordinance as 
 parishioners arc male inhabitants of Grahamstown, being mem- 
 bers of, and holding communion with, the Church of England ; 
 whereas under the 24th Canon " by parishioner shall be under- 
 stood any person, not being under Church censure, who is on 
 the list of communicants, or (except the Synod of the Diocese 
 have ruled or shall rule to the contrary) who, being baptized, 
 and not being a member of any other religious body, is an 
 habitual vvorshipper in the Church or Chapel of the parish or 
 district, in respect of which he claims to vote." Then, again, 
 as to the churchwardens, the 25th Canon required that they 
 shall be communicants of the age of twenty-one years and up- 
 wards, and shall be chosen by the joint consent of the minister 
 and parishioners, whereas under the Ordinance, the churchwardens 
 are to be chosen by the vestry out of their own number, all of 
 them being members of the Church of England. These Canons 
 are general in their terms, and contain nothing to exclude from 
 their operation Churches which are required by law to have a 
 different management. In respect of one of these Churches, 
 situated within the limits of his Diocese, the plaintiff now claims 
 to have his Episcopal rights declared. That claim involves the 
 transfer of the Church from the jurisdiction of the Church of 
 England to that of the Church of South Africa, of the congre- 
 gation from the spiritual guidance of ministers of the Church of 
 England to that of a minister who need not belong to that 
 Church, and of the management of its temporal concerns from a 
 Select Vestry of members of the Church of England to a vestry 
 not necessarily consisting of members of that Church. Such a 
 claim involves, as I have already attempted to show, a manifest
 
 82 
 
 illegality. In and over the religious body which has appointed 
 the plaintiff as its chief pastor, he is a Bishop entitled to exercise 
 the spiritual functions and consensual authority of a Bishop, and 
 within any Church lawfully devoted to the ecclesiastical uses of 
 that body he is entitled to perform all those Episcopal functions 
 which appertain to his office, according to the rules and canons 
 of that body ; but he has not, as of right, any Episcopal authority 
 in and over the Church of England as received and accepted in 
 this Colony, or within any Church devoted by law or by private 
 deeds of trust to the uses of the Church of England. 
 
 II. WHAT ARE THE RIGHTS OF THE DEFENDANT 
 IN RESPECT OF THE CATHEDRAL CHURCH 
 AS RECTOR AND DEAN ? 
 
 Thus far I have considered the legal position of the plaintiff 
 in regard to S. George's Church, Grahamstown. I shall now 
 proceed to discuss the defendant's position in regard to the 
 same Church. He received his appointment as Colonial Chap- 
 lain in connection with the Church of England from the 
 Imperial Government upon the recommendation, it would seem, 
 of Bishop Cotterill. He contends that this appointment vested 
 in him, as of right, the Incumbency of S. George's, but I can 
 find no sufficient authority for this contention. It is admitted 
 that successive Colonial Chaplains, appointed by the Imperial 
 Government, have officiated in that Church, and until the 
 appointment of the defendant, have been considered as the Incum- 
 bents ; but I am not satisfied that this usage is sufficient to 
 establish the defendant's claims. Strangely enough, there is no 
 evidence in the present case to show by whom he was appointed 
 Rector. He states that he took possession as Rector by accept- 
 ing the kevs from the Select Vestry elected under the Ordinance, 
 and there is no evidence to disprove this statement. We may 
 assume, however, that all parties concerned took it 
 for granted that his appointment as Rector would, de facto, 
 if not de jure, carry with it the Incumbency of S. George's 
 Church. He was subsequently installed by Bishop Cotterill 
 in consequence of a verbal promise which had been made to liim 
 by the Bishop in England that the Colonial Chaplaincy would 
 also carry with it the dignity of Dean of the Cathedral. It has 
 been suggested, rather than stated, in the course of the argument, 
 that letters of institution were granted to him as Dean, but if 
 such letters were issued, they have not been put in evidence, 
 and neither party has given or tendered secondary evidence of 
 their contents. We may fairly assume, however, that the 
 dignity of the Dean would not have been conferred on the
 
 83 
 
 defendant if he had not taken the oath of Canonical Obedience 
 to the Bishop of Grahamstown, and had not made the solemn de- 
 claration that he would submit to the rules and regulations of the 
 Synod of the Diocese of Grahamstown in all things not contrary 
 to the laws of the United Church of England and Ireland. At 
 that time, the Bishop of the Diocese, to whom obedience was 
 sworn, was a Bishop of the Church of England, duly appointed 
 by the Crown, and consecratad by the Archbishop of Canterbury, 
 and the only rules and regulations of the Synod of the Diocese 
 in existence were those of 1863, which do not, so far as I can 
 gather, indicate any intention of founding a Church distinct 
 from the Church of England. On the contrary, these rules and 
 regulations carefully guard against any such separation. In the 
 preface of these rules and regulations, the Bishop pledges 
 himself to act in concurrence with the Diocesan Synod " in 
 applying to the Church of this Diocese the laws and usages of 
 the Church of England." In the first chapter. Clergymen 
 who arc to have scats in the Synod arc spoken of as Clergymen 
 "of this branch of the United Church of England and Ireland," 
 and Laymen, before voting for Lay Representatives, arc required 
 to declare that they are members " of the branch of the United 
 Church of England and Ireland in this Diocese." In the 9th 
 chapter a similar declaration is required from persons not being 
 communicants who claim to be entitled to the rights of 
 parishioners. And, as if to leave no room for doubt, the rules 
 and regulations conclude with an emphatic declaration that 
 nothing therein contained " is intended to affect or change the 
 position of the Church in this Diocese, or the relation of its 
 members towards the United Church of England and Ireland, 
 and that the Church of this Diocosc remains as heretofore an 
 integral portion of the Church of England." The rules and 
 regulations do indeed contain a provision for the election of 
 Clerical and Lay members " in such manner as the Bishop may 
 determine, to sit in a Provincial Synod should one be summoned 
 before the next meeting of the Synod of the Diocese," but a 
 provision of this nature cannot be held, in the face of the 
 emphatic declaration just quoted, to bind every person who 
 accepts the rules and regulations to whatever Canons might 
 thereafter be framed by the Provincial Synod, however widely 
 they may depart from the principles and practice of the Church 
 of England. For the purpose of the contract between Bishop 
 Cotterill and the defendant, '•' we are to take them as having 
 contracted that the laws of the Church oi' England shall, as far 
 as applicable here, govern both." It was upon this under- 
 standing that the defendant left his Cure in England, accepted the 
 Colonial Chaplaincy from the Imperial Government, and received 
 
 G
 
 84 
 
 from the the Select Vestry possession of the Church as its In- 
 cumbent, and it was upon this understanding, we are bound to 
 assume, that the Vestry parted with the keys, and that Bishop 
 Cotterill, on liis return from England, installed the defendant as 
 Dean of the Cathedral, with all the rights and privileges attaching 
 to that dignity. In the view which I take of this case, it is 
 unnecessary to inquire minutely what those rights and privileges 
 are. The defendant seems to hold that, in his capacity as Dean, 
 he might have prevented Bishop Cotterill from preaching in the 
 Cathedral, and that, even if the plaintiff were a Bishop of the 
 Church of England, presiding over the Diocese of Grahams- 
 town, and havmg S. George's Church as his Cathedral, he 
 would not be entitled to preach therein without his (the Dean's) 
 consent. This is certainly a startling proposition in respect of 
 a Colonial Cathedral, which has only recently been established 
 as such, and in regard to which no express exemptions have 
 been proved. The authorities so ably collected and so care- 
 fully laid before the Diocesan Court by Mr. Advocate (now 
 Justice) Shippard certainly seem to point in an opposite 
 direction, and if it were necessary for this Court to decide the 
 question, I should be disposed to agree with the Diocesan Court, 
 that the proposition is untenble. But it is unnecessary for me 
 to express a decided opinion upon this point, inasmuch as I am 
 clearly of opinion that the plaintiff does not occupy the same 
 position relative to the Dean and the Cathedral as Bishop 
 Cotterill did. But for the fact that the defendant has taken 
 part in the Provincial Synod of 1870 and in the subsequent 
 election, consecration, and recognition of the plaintiff as Bishop 
 of the Church of South Africa, his right to resist the plaintiff's 
 demands would, in my opinion, have been clear and indisputable. 
 
 III. HAS THE DEFENDANT, BY HIS ACTS AND 
 CONDUCT SUBSEQUENT TO HIS APPOINT- 
 MENT, CONFERRED UPON THE PLAINTIFF 
 THE RIGHT WHICH HE SEEKS TO ESTABLISH 
 BY THIS ACTION ? 
 
 This leads me then to the consideration of the important 
 question whether the defendant has not, by his acts and conduct 
 subsequent to his appointment, conferred upon the plaintiff the 
 right which he seeks to establish in the present action. It has 
 been contended, very forcibly and very fairly, on the plaintifFs 
 behalf, that the defendant, having himself become a member ot 
 the Church of South Africa, having taken part in the election 
 and consecration of the plaintiff as his Bishop, and having in 
 various ways recognised the plaintifFs Episcopal authority in
 
 85 
 
 reference to the Church of S, George, is estopped from setting up 
 the defence which his pleas disclose. He has, it is averred, " both 
 expressly and by implication, assented and consented, and sub- 
 jected himself to the rules for enforcing discipline in the said 
 Church, and within the said Diocese of Grahamscown, by taking 
 part in the Provincial Synod of 1870, by taking part in the 
 Diocesan Synod of GrahamstowD, and by convening an elective 
 assembly, and presiding at the election of, and thereafter duly 
 installing, the present Bishop of Grahamstown, in express con- 
 formity with the Canons of the said Church." Now I may state 
 at once that this averment has been proved to my satisfaction. 
 It is idle for the defendant to deny that he joined the Church 
 of SouthAfrica, and became personally subject to its Constitutions 
 and Canons, in the face of the active part which he took in the 
 discussions of the Provincial Synod of 1 870. and in the absence of 
 any protest against the separatist Canons adopted by that Synod. 
 It is still more idle for him to deny that he has subjected himself 
 personally to the Episcopal Jurisdiction of the plaintiff, accord- 
 ing to the laws of the Church of South Africa, in the face of 
 the documentary proof which exists of his active participation 
 in the election of the plaintiff. At first sight, it appears to be 
 contrary to all reason and common sense that the defendant 
 should now be allov\cd to resist the plaintiff's claims, but the 
 more I have considered what those claims really are, and what 
 consequences they necessarily involve, tlic more convinced I am 
 that the defendant is not precluded by law from resisting them, 
 and that the objections to his so doing are more apparent than 
 real. We are not now concerned with the question whether 
 the Right Reverend plaintiff has been treated in this matter 
 with that consideration, respect, and good feeling to which his 
 years, if not his position as a Chief Pastor in the Church of 
 South Africa, and his labours as a Missionary Bishop, have fairly 
 entitled him. This is a Court for the enforcement of laws of 
 the land, and not for the inculcation of Christian charity. If 
 the defendant's contentions are sound in law, the Court is bound 
 to give effect to them, without regard to the question whether 
 they have been raised in a proper spirit or not. The real ques- 
 tion is, are they legally sound ? Now it is by no means clear to 
 me that the principles of the English law relating to estoppel 
 are applicable to their full extent to the law of this Colony, No 
 doubt by our law an agreement may often be implied from the 
 acts or conduct of a person, independently of an express con- 
 tract, and the Court will in all cases refuse to assist him in act- 
 ing against or setting aside such implied agreement. Such an 
 agreement may not be called with any binding legal force so as 
 to justify the Court in enforcing it at the suit of either party, 
 
 G 2
 
 86 
 
 but the Court will take cognizance of it as a ground of defence 
 to an action brought by the person whose words, acts, or con- 
 duct have raised such implied agreement. In the Roman Law 
 sense of the term such a pact is said to be naked {nudum) and 
 the rule applies : Nuda pactio ohligationem non parit sed parit 
 exceptionem (Dig. 2, 14, 7, § 4). Now under the Roman-Dutch 
 Law the distinction between agreements which are a ground of 
 action and those which only constitute a ground. of defence has 
 to a great extent been obliterated, but in the case of such an 
 implied agreement as that which I have supposed the rule 
 would still apply : favorahiliores rei potius quam adores habentur 
 (Dig. 50, 17, 125). I may illustrate my meaning by reference 
 to a Scotch case of appeal, decided in the House of Lords, 
 which was not mentioned in the argument, but which I have 
 since found, viz., the case of Cairncross vs. Lorimer (7 Jur., N, 
 S., p. 149). There it appeared that in 1827 some members of 
 a Dissenting Congregation acquired a piece of ground, upon 
 which they built a Chapel, which was conveyed to trustees, to 
 be held by them " in trust and for behoof of the Associate 
 Congregation of original seceders at Carnoustie, to whom solely, 
 and those who shall in time coming accede to them, and con- 
 tinue in adherence to the aforesaid original principles of the 
 secession the said subjects shall belong." All questions of 
 adherence to such principles were to be decided in a certain 
 manner. The congregation continued to use the Chapel until 
 1852, when a large majority, including the Minister, joined 
 another dissenting body, called the " Free Church," which was 
 considered to hold the same doctrines. In 1856 certain mem- 
 bers, forming part of the minority of the original congregation, 
 instituted a suit to have it declared that the Chapel belonged to 
 and was to be held for the use of, those only who adhered to 
 to the original doctrines. The defendants pleaded that it was 
 competent for the congregation to join the Free Church, and 
 that the plaintiffs had acquiesced in the proceeding, and were 
 now estopped from complaining. The Court of Session held 
 that the plaintiffs had not objected in due time to the proposed 
 amalgamation with the Free Church, and dismissed the suit. 
 On appeal the House of Lords affirmed the decision. The terms 
 of Lord Campbell's Judgment were perhaps more general than 
 were required for the decision of the case, but he distinctly 
 observed that the plaintiffs brought the action " as individuals 
 for a personal wrong which thev individually suffer from the 
 wrongful intrusion of others." Now if a similar case had been 
 tried in this Court the decision would probably have been the 
 same ; firstly, on the ground mentioned by Lord Campbell volenti 
 non fit injuria, and secondly, on the ground that the plaintiffs
 
 87 
 
 having, by their subsequent acquicscnce, been parties to an im- 
 plied agreement consenting to tlic Union with the Free Church, 
 could not be allowed to question the validity of such Union. 
 But supposing the minister had reverted to the original Church 
 of seceders, I doubt if this Court would have dispossessed him 
 at the suit of some of those who had joined the Free Church, 
 nor is it clear that the House of Lords would have done so. Of 
 course that case is a different one from the pre- 
 sent, for there was nothing done inconsistent with 
 the provisions of any statute eithci public or pri- 
 vate ; I mention the case rather for the purposes of 
 illustration. Neither by the English, nor, I presume, by the 
 Scotch law, would the doctrine of estoppel apply so ds to 
 prevent a person from denying that the acts which are supposed 
 to operate as an estoppel are inconsistent [sic] with the law. 
 Let me put an extreme case. Supposing (if such a thing were 
 possible) the Dean and Chapter of an English Cathedral were, 
 upon a vacancy in the See, to proceed to the election of a 
 Bishop without a conge cCclire from the Crown ; supposing they 
 elected a clergyman of some church in communion with the 
 Church of England (say the Episcopal Church of Scotland or of 
 America) and were parties to his consecration by Bishops of 
 the Episcopal Church of Scotland and America ; supposing that 
 for years such a Bishop is acknowledged by the Dean and the 
 congregation as their lawful Bishop, and ofHciatcd as such in the 
 Cathedral ; supposing that disputes were to arise between the 
 Bishop and the Dean as to the right of the former to officiate at 
 \rill in the Cathedral, and an action vv'ere brought against the 
 Dean in the proper Court to restrain him from interfering with 
 the Bishop's ministrations, would the Dean be estopped from 
 denving the Bishop's rights on the ground of his not being a 
 lawful Bishop of the Church of England ? 1 know that the 
 suppositions involve an impossibility, and that the case would 
 not in every respect be analogous to the one we are now con- 
 sidering, but it supplies a test as to the application of the doctrine 
 of estoppel. I do not pretend to any acquaintance with the 
 ecclesiastical law of England, but I think we may take it for 
 granted that the Bishop would not succeed in obtaining an 
 injunction even against the Dean personally. Under the English 
 common law the doctrine of estoppel is subject to some im- 
 portant qualifications. The case of "Stratford and Morton 
 Railway Companv z's. Stratton " (2 B and A 51S) afford"; an 
 instructive illustration on this point. There the question arose 
 whether a person who, as a member of the committee of the 
 company, had joined in making certain calls on shares, was 
 estopped, in a suit brought against him, from denying the
 
 legality of the calls, and the Court of Queen's Bench decided 
 that lie was not so estopped. " I agree," said Mr. Justice 
 Parke, " to the doctrine in * Keane vs. Rogers,' that a party 
 having made admissions by which another had been led to alter 
 his condition, is estopped from disputing their truth with 
 respect to that person and that transaction ; but I think it does 
 not apply here where the question raised by the party supposed 
 to have made the admission is one, not of fact, but of law." 
 And Mr. Justice Taunton said : " It is clear that the defendant 
 was not estopped. It was not competent to him to dispense 
 with the statute under which he and the rest of the committee 
 professed to act, even for the purpose of rendering himself liable 
 to be sued. The calls being contrary to law, it lies in his mouth 
 to take that objection, though he was a party to their being 
 made." Similar conclusions would, I apprehend, be arrived at 
 under the Roman-Dutch law, although not perhaps on precisely 
 the same grounds. But let me now consider the question at 
 issue as one of contract rather than of estoppel. The contract 
 between the plaintiff and defendant was either a personal one, 
 or it was a contract involving also the rights of both parties in 
 respect of the Church of S. George. So far as the contract 
 was purely personal, the defendant was bound to render due 
 obedience to the plaintiff as his Bishop in conformity with the 
 laws of the Church of South Africa, and he became amenable 
 to the discipline of that Church. If he had been guilty of 
 conduct which by the laws of that Church are punished with 
 excommunication, suspension, or deprivation, this Court will, so 
 far as a temporal Court can do it, assist in giving effect to any 
 sentences passed upon him by the properly constituted tribunals 
 of that Church. But the powers of the Bishop and of such 
 tribunals could, under such a personal contract, only affect his 
 position as a member of the Church of South Africa, and such 
 offices as have been conferred upon him by that Church. But 
 it is admitted on both sides that the defendant has accepted no 
 office or emolument from the plaintiff or from the Church of 
 South Africa. The facts relied upon by the plaintiff as consti- 
 tuting a fresh compact between hirfi and the defendant cannot 
 affect any office which the latter held before such compact was 
 entered into. So far as such offices are concerned, the 
 defendant's personal submission to the rules and canons of the 
 Church of South Africa could not call rights or interests into 
 existence which would not otherwise exist, or preclude the 
 defendant, at all events, after being excommunicated by the 
 plaintiff from communion with the Church of South Africa, 
 from falling back upon his original contract, made not with the 
 plaintiff, nor with a corporation, of which he is the representa-
 
 89 
 
 tivc, but with a corporation which, althoagh in abeyance, is not 
 legally defunct. But it has been contended that the compactwith 
 the plaintiff was not a purely personal one, but one which also 
 conveyed to the plaintiff certain real rights in respect of the 
 Cathedral, including the right of summoning the Chapter and 
 presiding therein, "of officiating" (as the proposed statutes 
 have it), and performing all ecclesiastical functions at his own 
 option within the Cathedral, and in case of a vacancy in the 
 Incumbency, of appointing a Rector, who need not be a Clergy- 
 man of the Church of England but must belong to the Church 
 of South Africa. Such a contention, if it has any meaning, 
 involves, as I have already attempted to show, a transfer of the 
 Church from the control and management, temporal as well as 
 spiritual, of members of the Church of England, to those of mem- 
 bers of the Church of South Africa, and is inconsistent with the 
 provisions of two colonial statutes, one of which is expressly 
 declared to be a public Ordinance. Of these statutes the parties 
 must be presumed to have had knowledge before they entered into 
 theiralleged compact, and neither party can successfully ask for the 
 assistance of this Court in establishing claimscontrary to or incon- 
 sistent with the provisions of these statutes. Tn such a case the 
 rule of the Roman law applies : Pacta, quae contra leges constitu- 
 tionesque fiimt, nullam vim habere, mdubitati juris est (Cod. 2, 3, 6). 
 Before quitting this part of the case, T only desire to add that 
 there are circumstances in evidence which tend to show that 
 the defendant's acts, which arc relied upon as constituting an 
 estoppel, or as raising a contract, were not always quite volun- 
 tary on his part. The Provincial Synod of 1870 was convened 
 by the late Bishop of Capetown, whose title the defendant, at 
 all events, could not dispute. He himself says that he went to the 
 Synod with many misgivings, and he certainly never signed any 
 declaration of adherence to the Canons, The mandate for the 
 election of a successor to Bishop Cotterill was also issued to 
 him by the late Metropolitan. Possibly he might then have 
 taken up a similar position to that which had previously been 
 taken up by Mr. Long against Bishop Gray, but he was not 
 prepared to take this extreme step. Having obeyed the man- 
 date, the rest of his conduct followed as a matter of course. It 
 was not until the plaintiff claimed the right of preaching in the 
 Cathedral at his option that any serious controversy arose 
 between the parties, and even then the objection raised by the 
 defendant was to the plaintiff's unqualified right of preaching, 
 and not to his status as a Bishop. It is that in 1875 the 
 defendant protested against the Cathedral and the rights of 
 members of the Church of England being prejudiced by the 
 acts of the Provincial Synod, but it was not until the plaintiff
 
 90 
 
 had passed sentence on the defendant, purporting to cast him 
 out of the couimunion of the Church of South Africa, that the 
 defendant urged his full grounds of objection. 
 
 IV. ARE TH E RESPECTIVE RIGHTS OF THE PARTIES 
 IN ANY WAY AFFECTED BY THE DECISIONS 
 OF THE DIOCESAN COURTS? 
 
 Hitherto I have considered the questions at issue between the 
 parties, quite irrespective of the sentences of the Diocesan 
 Court of Grahamstown, and it only remains for me to inquire 
 whether those sentences in any way assist the plaintiff in establish- 
 ing his right to relief. A preliminary objection has been raised 
 by the defendant to the constitution of the Court, which passed 
 the first sentence on him. The Court consisted of the Vener- 
 able Archdeacon Badnall as the plaintiff's commissary, with the 
 Rev. Canon Henchman, the Rev. W. Llewellyn, and the Rev. 
 Wm. Meadcn, as clerical assessors, and Mr. J. B. Currey as 
 lay assessor. It is admitted that the articles of presentment 
 were duly served on the defendant, together with all notices re- 
 quired by the Canons of the Church of the Province of South 
 Africa. Among these notices was a notice of the constitution 
 of the Court and of the appointment of the Presenter's Coun- 
 sel. The defendant did not appear before the Court, nor did he 
 in any way object to the constitution of the Court. The objec- 
 tion which has now been raised on his behalf, is that the Court 
 was not properly constituted, inasmuch as two of the clerical 
 assessors were not Canons of the Cathedral as required by the 
 2 1 St Canon of the Church cf the Province of South Africa. 
 The Canon directs that " the Bishop shall preside in the 
 Diocesan Court, cither in person, or, if reasonably hindered, by 
 a commissary in priests orders .... being assisted by 
 two grave priests, well accounted of in the Diocese as assessors, 
 viz., by the Dean and Archdeacon, or some of the Canons, if 
 there be such, when the Court is held near the Cathedral 
 Church." That Canon certainly seems to require that, failing 
 the Dean and Archdeacon, two of the Canons shall be assessors 
 in their stead, but the authorities of the Church, with the most 
 laudable desire to secure an impartial trial, appointed one Canon 
 and two other priests instead of two Canons, it being thought 
 that ihe disputes which had taken place between the Canons 
 and the defendant might possibly have prejudiced them against 
 him. If it were necessary to decide the point, I should be dis- 
 posed to hold that as the Diocesan Court really consists only of 
 the Bishop or his commissary, the assessors being merely ad- 
 visers, and as the defendant did not, as he might have done, 
 object to the constitution of the Court, he cannot rely . upon
 
 91 
 
 the alleged improper constitution of the Court as a defence 
 against an action properly brought for enforcing the sentence of 
 the Diocesan Court. The question is not free from doubt, but 
 for the purpose of the present case, we may assume that the 
 Court was properly constituted. And here I may say that, in 
 reading the proceedings of that Court it is impossible not to 
 admire the ability and candour with which the prosecution was 
 conducted, or the judicial impartiality displayed by the tribunal 
 itself. Its decisions, so far as they relate to the defendant's posi- 
 tion as a Minister of the Church of South Africa, seem to be 
 supported by the evidence. The sentence passed on the 5th 
 August, 1879, was that the defendant " be suspended from his 
 ministerial functions with total loss of the income attached to 
 the office or offices held by him as Dignitary or priest of the 
 Church of this Diocese, for the term of one calcndar,:month 
 from this date ; and, further, until he shall engage not to repeat 
 the offence of preventing the Lord Bishop of this Diocese from 
 preachingor ministering in the Cathedral Church of S. George's, 
 Grahamstown, and thus giving just cause of scandal or offence." 
 The defendant, however, continued to perform his ministerial 
 functions and refused toenterinto theengagement required of him, 
 and, accordingly, on the 13th of November, 1879, the plaintiff 
 pronounced the defendant to be excommunicated, " the sentence 
 to take effect after fifteen days, unless he shall in the meantime 
 submit himself to the sentence pronounced in the Diocesan 
 Court, and shall give satisfaction by engaging to comply in 
 future with the rules and regulations agreed on by the Synods 
 of this Diocese and Province." Now the effect of 
 all this is to deprive the defendant of all offices or emoluments, 
 which he has received from the Church of South Africa, 
 and finally to cast him out of the Communion of that Church. 
 It is admitted that he received no such office, and is entitled to 
 no such emolument from the Church of South Africa, and the 
 only operative sentence remaining against him is that of excom- 
 munication, which will, of course, prevent him from officiating 
 in any of the Churches belonging to that Church. By the 
 first prayers of the declaration, the Court is asked to declare 
 that the defendant is one of the Clergy of the Church of South 
 Africa ; but such a declaration this Court is prevented from 
 making after the sentence of excommunication passed upon the 
 defendant, and the remaining prayers appear to me, for the 
 reasons already stated, to be equally untenable. I have been 
 induced to go thus fully into the case because the parties 
 themselves were anxious to have the opinion of the Court upon 
 the merits. Other, but less important, objections to the 
 plaintifFs claims have suggested themselves to me, which 
 require a passing notice. The action is mainly a declaratory one,
 
 92 
 
 and yet contrary to the established practice of this Court in 
 regard to such actions, only one of several parties interested has 
 been made defendant. It has been stated on the defendant's 
 behalf, and not denied on the other side, that he has the 
 support in his conduct towards the plaintiff of the Select Vestry 
 of the Church as well as of a majority of the congregation. 
 But besides the Select Vestry and the congregation, the trustees, 
 and perhaps even the Crown, may have a claim to be heard 
 in an action for a declaration of rights in respect of the 
 Cathedral. So far as the action is not declaratory, b»t asks for 
 an interdict against the defendant, the Roman-Dutch Law 
 requires clear proof of the plaintiffs right and title before the 
 Court can interfere in his favour (Van der Linden, p. 440 
 and 441). Then, again, we have the fact that the defendant is 
 actually in possession of the Church and the rule of our law 
 applies : In pari causa possessor potior haberi debet (Dig. 50, 17, 
 128, §1). From whatever point of view we regard this case, 
 the obstacles to the plaintiff's success appear to me to be 
 insuperable. In order, however, not to debar the plaintiff from 
 hereafter having his legal status declared in an action properly 
 instituted for the purpose, I am of opinion that the Court 
 should absolve the defendant from the instance, instead of 
 giving Judgment absolutely in his favour. This form of judg- 
 ment will not, I trust, prevent the plaintiff from appealing 
 against it to the Queen in Council. If the Privy Council 
 should see its way clear to decide in the plaintifPs favour, I for 
 my part shall not regret the result. But, whatever course may 
 be taken in respect of this action, I feel bound to express my 
 individual opinion as to the necessity of legislation, whether 
 Imperial or Colonial, to regulate the relative rights of the 
 Church of South Africa and the Church of England, in 
 respect to their endowments under private dfeeds of trust, 
 and to legalise the transfer to the Church of the Province 
 of South Africa of property secured by the law for the 
 uses of the Church of England, in those cases in which 
 there has been acquiescence for a certain length of time, 01 
 where a majority of the congregation consent to the transfer. 
 In Canada and the Colonies of Australia, their respective 
 Legislatures have settled the rights and status of the respective 
 Churches of those Provinces, and I feci confident that unless a 
 similar course is adopted in regard to the Church of South 
 Africa, or unless that Church is prepared to part with some of 
 the property of which it now enjoys the use, there will never be 
 a lasting peace within its own household. The Judgment of the 
 Court will be absolution from the instance, with costs, for the 
 defendant.
 
 93 
 
 [ B. ] 
 Form of Conge d' el ire. 
 
 ''Victoria, by the Grace of God, &c., to our trusty and wcll- 
 bcloved the Dean and Chapter of our Cathedral Church 
 of . 
 
 Greeting : 
 
 "Supplication having been humbly made to us on your part 
 that whereas the aforesaid Church is now void and destitute of 
 
 the solace of a Pastor We would be graciously 
 
 pleased to grant vou our fundatorial leave and licence to elect 
 you another Bishop and Pastor. We being favourably inclined 
 to your prayers in this behalf, have thought fit, by virtue of 
 these presents, to grant you such leave and licence, requiring 
 and commanding you, by the faith and allegiance by which you 
 stand bound to Us, that you elect such a person for your Bishop 
 and Pastor as may be devoted to God, and useful and faithful to 
 Us, and Our Kingdom." 
 
 The operation of the Statute of Praemunire, restraining th^ 
 election to the Royal nominee under certain penalties, prove* 
 the unimpaired common-law right. The Statute of Prctmtinir^ 
 docs not extend to South Africa, nor is it the wish of the Crown 
 that it should. The free election of our Bishops follows, of 
 course, under the laws of England, so far as they are applicable. 
 
 [ C. ] 
 Colonial Act No. 3 of 1873. 
 
 The following correspondence, kc. Sec, will show the bearings 
 of the Act above-cited on the present dispute : — 
 
 No. I. (Copy.) 
 
 Governor Sir Henry Barkly, K.C.B., to Archdeacon 
 Badnall. 
 
 Government-house, Capetown, 
 
 20th September, 1873. 
 
 The Venerable Archdeacon Badnall, D.D., Vicar-General of the 
 Diocese of Capetown. 
 
 Venerable Sir, — I have the honour to transmit, for your 
 information as Vicar-Gcneral during the vacancy of the See
 
 94 
 
 of Capetown, copies of a Circular Despatch and its enclosures, 
 received by me from the Right Honourable the Secretary of 
 State for the Colonies, in which certain queries, founded on a 
 Bill introduced by Lord Blachford last session into the House of 
 Lords, are propounded. 
 
 My Responsible Advisers are of opinion that there is no 
 necessity, so far as this Colony is concerned, for Imperial legis- 
 lation in regard to the future transmission of property vested in 
 the Bishop or other office-bearers of the Church of England 
 for Ecclesiastical purposes, — the Colonial Act No. 3 of the 
 present year having sufficiently provided for the regulation of 
 all property held in trust for religious associations. 
 
 I enclose a copy of that Act, and shall be glad to learn whether 
 you coincide ir. thinking that its provisions are sufficient to meet 
 all the circumstances of the position in which the Endowments 
 of the Church of the Province of South Africa stand ; and, if 
 not, in what respect you consider those provisions inapplicable 
 or inadequate, and requiring amendment by the Legislature of 
 
 the Colony. 
 
 ****♦*• 
 
 Requesting the early attention of yourself and other principal 
 office-bearers in the Church of England to the subject, 
 
 I have the honour to be, 
 Venerable Sir, 
 Your faithful and obedient Servant, 
 
 (Signed) HENRY BARKLY, 
 
 Governor. 
 
 [Enclosed in the above were (a) a copy of Lord Kimberlcy's 
 Circular Despatch, stating it to be the object of Lord Blachford's 
 Bill, " amongst other things, to put an end to certain doubts which 
 are entertained as to the power and manner of transmitting property 
 which has been given in trust to or for Colonial Bishops and their 
 successors;'' and further stating that "the subject appears to 
 Her Majestf s Government to be one of considerable importance!'' 
 (b ) A copy of Lord Blachford's Bill, the preamble to 
 which mentions the fact that " Her Majesty has in certain of 
 Her .... Possessions discontinued the appointment of successors'^ 
 to Bishops nominated by letters patent, and that "persons duly 
 consecrated to the Office of Bishop have been accepted as successors of 
 such Bishops by the Clergy and Laity of the Dioceses or reputed 
 Dioceses concerned" ; and further, that "doubts are entertained 
 respecting the transmission of property from Bishops appointed by letters 
 patent to Bishops so accepted as aforesaid ;" and further, that " /'/ is 
 expedient that proviuon should bt made for the transmission of suck
 
 95 
 
 property as aforesaidy (c.) A copy of the Report of a Committee 
 of Council advising Her Majesty to withhold Her assent to Bill 
 No. l6 of 1871, passed by the Legislative Council of Natal 
 (among other reasons), on the assumption that the present Bishop 
 of Natal will have no successors, (d.) A copy of Act 3 of 1 873 
 (see Memo, of Attorney-General).] 
 
 No. II. (Copy.) 
 Governor Sir Henry Barkly, K.C.B., to the Earl of 
 
 KiMBERLEY. 
 
 Government-house, Capetown, 
 
 4th November, 1873. 
 
 The Right Honourable the Earl of Kimberley. 
 
 My Lord, — I have the honour to acknowledge your Lordships' 
 Circular Despatch of the 1st August last, forwarding, for the in- 
 tormation of my Ministers, copy of a Bill introduced last Session 
 into the House of Lords by Lord Blachford, with a view to put 
 an end to doubts as to the transmission of property given in trust 
 for Colonial Bishops and their successors, and making certain in- 
 quiries in connection with that subject. 
 
 As the best mode of answering your Lordship's inquiries, 1 en- 
 close ( I ) copy of a memorandum drawn up by the Attorney-Gene- 
 ral, and adopted by his colleagues in Executive Council, and (2) 
 copy of a letter addressed to me by Archdeacon Badnall, as Vicar - 
 General, during the vacancy of the Metropolitan See of Cape- 
 town, covering a report from the Registrar of the Diocese, in 
 the views expressed in which the Archdeacon states that both 
 himself and the Dean and Chapter concur. 
 
 It will be perceived that the Ecclesiastical authorities consulted 
 agree with my Responsible Advisers in thinking that the Co- 
 lonial Act No. 3 of the present year will sufficiently meet any 
 difficulty likely to arise respecting property held in trust for thd 
 community they represent, and that neither of them consider it 
 necessary or desirable that Imperial legislation for the purpose of 
 removing doubts on this head should take place. 
 
 I may add that the Act in question (of which a copy is ap- 
 pended for facility of reference), though introduced and passed 
 after the death of Bishop Gray, was rendered applicable to such 
 property at his express instance, — special clauses having been 
 framed by his Registrar, and approved by the then Attorney- 
 General, Mr. Griffiths, in 1871, though subsequently fused, when
 
 96 
 
 the Bill was re-cast into the general provisions now quoted by 
 Mr. Dc Villiers. 
 
 As the Constitutions and Canons of the Church ot the Pro- 
 vince of South Africa are alluded to in the Registrar's report, I 
 add a copy, together with the latest account of the administra- 
 tion of its funds and the extent of its endowments, in order to 
 complete the information called for by your Lordship. 
 
 I have, &c., 
 
 (Signed) HENRY BARKLY, Governor. 
 
 No. III. (Copy.) 
 
 Memo. 
 
 Attorney-General's Office, 
 
 4th November, 1873. 
 
 There appears to me to be no necessity, so far as this Colony 
 is concerned, for Imperial legislation in regard to the future 
 transmission of property vested in the Bishop or other office- 
 bearers of the Church of England in trust for the Anglican com- 
 munity. 
 
 By the 3rd Section of Act No. 3 of 1873, it was provided 
 that as often as any immovable property shall bp or shall have 
 been granted or transferred to any office-bearer or office-bearers 
 of any association, and to the bearer or bearers of such office or 
 offices for the time being, shall be the owner or owners in his or 
 their capacity of such property, as fully and absolutely as if the 
 grant or transfer of such property had been originally made to 
 him or them, in their said capacity, by his or their own proper 
 names. 
 
 It might be objected that the above provisions would not 
 meet the difficulty which was raised in the case of the " Natal 
 Bill," viz., that they could not be effectual unless Bishops should 
 succeed each other in legal succession. This difficulty, how- 
 ever, will, I conceive, be met by the powers which are conferred 
 on the Supreme Court of the Colony by the 6th and 7th sections 
 of the same Act. By the 6th section it is enacted that as often 
 as by death, failure to elect, or other cause, the office-bearers or 
 trustees of any such association shall become incapable of acting 
 in the execution of the trusts for such association it shall be law- 
 ful for any person, being a member of or interested in such 
 association, to apply by petition to the Supreme Court tor such 
 order as he shall conceive himself entitled to, and by the 7th
 
 97 
 
 section the Court is authorised, after due notice to all persons 
 interested, to appoint trustees for the time being for such asso- 
 ciation, and to direct how new trustees shall be afterwards from 
 time to time appointed, and to make such provision, if any, as 
 may in the particular case appear to be required for the more 
 effectual performance by the trustees of the trusts reposed in 
 them. 
 
 From such an order of the Supreme Court an appeal would 
 lie to Her Majesty's Privy Council. 
 
 The 9th section of the Act provides that the trustees for the 
 time being appointed under the provisions of the 7th section shall 
 be the owners in trust not only of the immovable property granted 
 or transferred for the benefit of the association, but also of all 
 movable property belonging to such association, and shall be 
 invested in trust with all the rights and entitled to all the claims 
 of such association. 
 
 By the first section the term " association " is declared to com- 
 prise, inter alia, any denomination, Christian or otherwise, united 
 for the public worship of Almighty God, and the term " office- 
 bearers " to comprise, in regard to associations for the public 
 worship of Almighty God, Bishops of Episcopal Churches, and 
 generally all functionaries by whatsoever name called who hold 
 office in any Church or denomination. 
 
 I think it advisable that a copy of the Bill and of the queries 
 founded on it should be sent to Archdeacon Badnall as Vicar- 
 General, and that a copy of Act No. 3 of 1873 should be for- 
 warded to Her Majesty's Government. 
 
 (Signed) J. H. DE VILLIERS. 
 
 [The other documents referred to in Sir Henry Barkly's letter 
 to Lord Kimbcrlcy arc necessarily omitted for brevity's sake. 
 They may be found in Blue-Book, C. — 979, 1874.] 
 
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