PUBLI
RECORD OFFICE
Reference
C.O.885
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC-
COPYRIGHT PHOTOGRAPH-NOT TO
2 PUBLIC RECORD OFFICE, LONDON
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expose them to continual collision with the law of the Colony, to disastrous litigation, and perhaps to embarrassing defeat.
With these feelings and wishes, I considered that it would be most convenient for the Bishop and the Church that I should leave them at liberty, in the first instance, to place their own construction on the Judgment, and to submit for my consideration such amendments of their existing rules as with least detriment to their own position would enable the civil power to give them its cordial co-operation.
The Bishop, however, professes his inability to understand me, and i assume desires me to explain myself with more fulness. His principal difficulty is, I suppose, to ascertain what measures 1 hold requisite to remove the imputation of illegality to which I have alluded. The following opinions on this subject embody the advice which has been furnished më on this head.
The Judicial Committee, I am fully aware, did not decide that it was unlawful for the Bishop, with such clergy and laity of the Church as might concur in any scheme or arrangement for that purpose, to meet in a voluntary Synod, and to pass rules and regulations by which those who assented to them might be bound. They decided only that some of the particular acts and resolutions of the Synod in question had exceeded those lawful limits; and that Mr. Long, the Appellant in the case, who was not a party, and had not assented to those resolutions, could not be com- pelled to give notice of any meetings of such Synod, or of any proposed elections thereto, or to attend it, or to be bound by its proceedings. Mr. Long, under an express contract with the Bishop, would apparently have been bound to give that notice if the Synod had been a body recog- nised by the existing law of the Church of England. Their Lordships are of opinion that the Synod was not such a body.
The portion of the Judgment which relates to the illegality of some acts of the Synod is in these terms (p. 16), “The Synod, which actually did meet, passed various acts and constitutions, purporting, without the consent either of the Crown or of the Colonial Legislature, to bind persons not in any manner subject to its control, and to establish courts of justice for some temporal as well as spiritual matters; and, in fact, the "Synod assumed powers which only the Legislature could possess.
There can be no doubt that such acts were illegal."
It is obvious that in this passage reference is more particularly made to those parts of the “acts and constitutions" of the first Synod (the very term "constitutions" seems to imply the assumption of some binding authority) which are mentioned in the paragraphs beginning "various rules," &c., and “ A. Consistorial Court," &c., "at" page 8 of the printed Judgment.
The surest mode, 1 conceive, of relieving the Assembly in question from the prejudicial effect of these errors in its past proceedings will be for some future meeting, with the concurrence of the Bishop, to review all the acts of the former Synods for the purpose of removing from them, both in substance and in form, everything which has the appearance of an assumption of any compulsory powers, or of any attempt to create tribunals similar to those which in 'countries where there is an Established Church, exercise a legal and coercive jurisdiction. It would be desirable expressly to declare that the Synod altogether disclaims the power of legislating so as to bind any persons who do not voluntarily assent to and agree to be bound by its rules. That the terms "Constitutions," "Con- sistorial Court," and the like, should be disused, and that the rule “that all Presbyters and Deacons before institution or induction, or before receiving à license from the Bishop, and as a condition of receiving such institution, induction, or license, shall sign a declaration that they will subscribe to all the Rules and Constitutions enacted by the Synod of the Diocese of Cape Town" (Judgment, page 8), and any other rules (if there are any of a like nature should be rescinded. In place of the Resolutions as to the Consistorial Court; deemed objectionable by the Judicial Com- mitter, I am advised that it would be competent to the Synod to pass Resolutions recommending, for the adoption of their Bishop, suitable forms of proceedings (as in foro domestico) for the investigation, trial, and decision
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of offences against the laws of the Church before the Bishop himself, or before persons appointed by him upon principles similar to those which prevail for the necessary preservation of good order and discipline in all voluntary religious bodies; and I apprehend that all persons who had assented to such resolutions would be bound by what the Bishop from time to time might reasonably do in accordance with the forms so recom- mended. Upon this point again refer to the words of the Judgment, "It may be further laid down that where 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 association have been violated by any of its members or not, and what shall be the consequences of such violation, then the decision of such tribunal will be binding when it has acted within the scope of its authority, has observed 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 sentence; 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 juris- diction rests entirely upon the agreement of the parties."
Having expressed the opinion that the Synod should repeal that resolution of their body which requires all Presbyters and Deacons before institution or induction, or before receiving a license from the Bishop, to subscribe all their rules and constitutions, it is proper for me to state further to what extent the Executive Government could recognize the right of the Bishop to enforce practically, on his own authority, the reso- lution which in its present form the Synod is called upon to cancel.
I am informed that it would be competent to the Bishop to allopt the course prescribed by that resolution with respect to matters as to which he has by law a free and unfettered discretion; thus, he may decline to confer holy orders on persons unwilling to be bound by the resolutions passed at such meetings without being liable to any interference on the part of any Civil Court."
But with respect to the power of the Bishop to make assent to such resolutions, the condition of licenses, admissions, or institutions of clerks to spiritual offices, benefices, or cures, a distinction must be made accord- ing to the nature of the office, benefice, or cure.
If there be no previous contract or trust expressed or implied between the Bishop and the patron, or the Bishop and the presenter, and if the office, benefice, or cure in question has not been founded, endowed, or established by any positive law or enactment, or by any other mode of legal foundation inconsistent with the exercise in that respect of a free and uncontrolled discretion by the Bishop, in these circumstances I am advised that it would be competent to the Bishop to make the license, admission, or institution of a clerk to a spiritual office, benefice, or cure, conditional on his assent to such resolutions.
But if the Bishop be bound with respect to such benefice or cure by any antecedent contract or trust (like the engagement to appoint the nomince of Mr. Holt's) or by the terms of any legal foundation, of which assent or obedience to such resolutions forms no part, he cannot under such circumstances lawfully exact from any clerk entitled to claim from him license, admission, or institution to such office, benefice or eure, that such clerk should, as a condition of receiving such license or institution, agree to be bound by such resolutions.
Within the limits thus laid down the exercise of the Bishop's discretion in this respect should be recognized by the Executive Government as legitimate.
Lastly, the Bishop requires to be informed “whether the document which has been placed in his hand by the Crown is in all respects, as it confessedly is in some, an illegal instrument; whether any, and if so which, of its provisions are valid in law; whether it conveys any rights, title or authority to the Bishop of this Diocese and the Metropolitan of this Province, or not."