23
CAPE OF GOOD HOPE.
Encl. in No. 1s
CAPE OF
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CORRESPONDENCE RELATIVE TO
"their body which will be binding on those who expressly or by implication have. G. HOPE assented to them."
From these words it was concluded that "the rules of such an assembly (unless in themselves contrary to law) are binding, not indeed on all professed members of the "church over whom the Bishop has been appointed to preside, but on all those "who, expressly or by implication, have assented to these rules." His Grace further stated, that although the synod possessed no authority to impose its own rules on others, yet that he was informed that it was competent for the Bishop to require subscription to the rules of the synod, not only from candidates for holy orders, but before granting licence or institution, if there be no previous contract or trust with regard to any cure, or some legal foundation of the benefice; and within these limits the Executive Govern- ment was directed to recognize the exercise of the Bishop's discretion as legitimate.
I have now to ask whether these conclusions, which have been published for our guidance, are still to be regarded as correct, or whether the late judgment of the Master of the Rolls should be followed, which, as I understand it, denies the correctness of these inferences, and affirms that members of the Church of England are incapacitated from adopting any rules for their direction in ecclesiastical matters but the ecclesiastical laws of England, and that the only rules which a bishop appointed under Her Majesty's letters patent can enforce are the English laws, the civil courts of the Colony, and not the acceptance and consent of the members of the Church, determining in all whatever manner and to what extent these laws are applicable in the altered circum- cases, in stances of this land.
In order that your Lordship may perceive how dependent upon a mutual compact our church system is in this Colony, and what confusion it will introduce amongst us if such a compact should be declared to be illegal or without force, I send by this mail a copy of the acts and resolutions of the synod of this diocese. Not having here any parochial system or ecclesiastical organization by law, we have endeavoured, as your Lordship will observe, by mutual agreement to adapt the English system to our circumstances, and to give the clergy, under certain conditions, somewhat of the status of beneficed incumi- bents in England; and I would call attention to the declaration prefixed to the acts of the synod, which was drawn up, under the best legal advice that could be obtained, after the decision of the Judical Committee in the case of the Rev. W. Long, and which was then supposed sufficient to prevent any misunderstanding of the meaning and force of this united action.
Since, however, the late judgment of the Master of the Rolls, it is impossible not to feel apprehensive, as the Duke of Newcastle had expressed himself in a previous despatch of December 26, 1861, to Sir D. Daly, that Courts of Law would refuse to recognize or "give effect to a private agreement entered into by the members of a body," which, according to the principles of that judgment, is "not the offspring of agreement," but is governed by the Ecclesiastical Law of the Sovereign, and by none other.
I am myself deeply convinced that all the difficulties which have arisen cannot now be removed, except by such legislation as shall leave the Colonial branches of the Church of England at liberty to manage their own affairs, under such control and within such limits as shall be determined through their own united action, and with the consent of the parent church.
I am, however, well aware that there may be impediments at present to such legisla- tion by the Imperial Parliament, and action by the Colonial Parliament, even if it could be obtained here, would not, in my judgment, meet the difficulties of the case. Your Lordship will, therefore, I am sure, excuse my anxiety in the meanwhile to obtain such counsel as may at all events suggest one method by which the affairs of this diocese may be administered with as little confusion and irregularity as possible.
In further illustration of the subject, I venture to enclose an extract from a local paper, containing an address by me at a public meeting in this city, in which I speak of some of the serious difficulties which appear to me to follow from the judgment of the Master of the Rolls, should the principles there expounded be finally declared to be binding on the Colonial Churches.
To the Right Hon. Earl of Carnarvon,
&c.
&c.
&c.
I remain, &c.
(Signed) H. GRAHAMSTOWN.
COLONIAL BISHOPRICS.
Enclosure in No. 18,
PUBLIC MEETING.
THE ENGLISH CHURCH IN THE COLONIES.
The meeting, adjourned from the Albany Hall on Monday week, was convened and held at the school-room in connection with St. George's Cathedral on Monday evening. The attendance was not so large as at the previous meeting, there not being more than one hundred ladies and gentlemen present.
The Lord Bishop, who presided, after calling upon the Dean of Grahamstown to open the meeting with a prayer, said: It is now some time since we met in this room to discuss Church questions, and since that time much has occurred which will make it necessary for me to explain, at some length, our present position. In the first place, the expediency of holding a provincial congress as the first step towards our organization, which you considered and recommended, has been discussed throughout this diocese and elsewhere. At Port Elizabeth a different course was suggested, namely, that first of all a diocesan synod should be called. This was the view, with some modifications, expressed also at King Williamstown, Cradock, and most other places, and, after communication with the Bishop of Cape Town on the subject, I have come to the same conclusion, and our diocesan synod shall be convened with as little delay as possible, though I am doubtful whether it will be possible, consulting the convenience of all concerned, to hold the synod before the end of June. But something else has occurred, which certainly has affected our position much more-I mean the recent judgment of the Master of the Rolls, the obiter dieta of which judgment, should they be confirmed and accepted as the declaration of the law, will undoubtedly place the English Church in this colony in a totally different position from that which we were supposed to hold. It is, at all events, a very able, complete, and, as it seems to me, impartial exposition of a certain theory of the relations of our Church to the Crown, by an eminent judge, who, as it seems to me, logically carries the theory to its legitimate con- rfusions. In order to explain this, I must remind you of the previous logol and judicial decisions as to the state of the Colonial Church. First of all, when the Canadian bishoprics were founded, from 1787 to 1795, Canada then possessing representative institutions, the lettors patent, under which the bishops were appointed, conferred on them coercive jurisdiction over the clergy, and these powers were then declared to be lawfully given by the most eminent lawyers, such as Lord Eldon and Lord Stowell, whose opinion was consulted by the Attorney General. It was not till 1847, when professional opinion as to the rights of colonial legislatures and the Royal Prerogative had become considerably modified by subsequent events, that an opinion was given by the law officers of the Crown, that the powers of jurisdiction, which had received such high sanction, were illegal. Campbell, in the Queen's Bench, confirmed this opinion; he affirmed that a colonial bishop has nothing In 1857, a judgment by Lord in common with English and Irishi bishops, except that he is a Protestant hishop, canonically con- secrated and holding the faith of the Anglican Church; that he has no jurisdiction, except over those who voluntarily submit to his jurisdiction, and is nothing more than a titular bishop. Again, in 1863, the important judgment of the Privy Council in the Long case confirmed this view, denying to the Bishop of Cape Town the right of jurisdiction, but affirming that which seemed to lay a sound and substantial foundation for the English Church in the colonies, that it was in the same position as that of any other religious body, though in no better, yet in no worse, and that its members were at liberty, as others were, to adopt rules for enforcing discipline within their own udy, and to constitute tribunals for determining whether these rules were violated, the decisions of such tribunals being enforced by civil courts, as the decisions of arbitrators are enforced. another judgment of the Judicial Committee not only re-affirmed the previous judgment in regard to In 1865 jurisdiction, but declared—at least its language was understood, not only by persons in general, but by the law officers under Lord Russell's Government, and apparently, from a recent letter of Lord Car- narvon to the Lieutenant-Governor of Natal, by the present law officers-that it was beyoud the power of the Crown by its prerogative to found bishoprics and assign dioceses, so that in the eye of the law there were no dioceses and no diocesan bishops in these colonies. But now the judgment of the Master of the tolls has put a new interpretation on all this. His theory is, that the Sovereign is the supreme governor of the Church in such a sense, that acts of the Crown determine conclusively, and by law, for all members of the Church of England throughout the British dominions, certain questions; that the preceding judgments merely denied to the colonial bishops coercive jurisdiction, that is, the power of holding courts, the decisions of which could be enforced by their own officers, but that in other respects they had the same power and authority as an English bishop. You observe, he does not say, as Lord Campbell said, over those who voluntarily submit to his jurisdiction, but over all members of the Charch of England, as such, whether clergy or laity. He says expressly that, not only all the deacons and priests alliciating within the limits within the diocese, but also all the laymen professing to be “members of the Church of Englaud," are members of that Church in the strict sense of the term, and the consequence is that they have, in all matters ecclesiastical, voluntarily submitted themselves *to the control of the bishop" appointed by the Crown, “so long as it is exercised within the scope of "his authority, according to the principles prescribed by the Church of England." This certainly throws a new light on the word "voluntary," and since in "England itself no one is obliged to submit to the authority of a bishop in spiritual matters, if he does not profess himself a member of the Church of England, I confess I cannot see how it is consistent with our being, as we are declared to be, a voluntary association and not an Established Church. But further, it follows, quite consistently on this theory, that the rules of this voluntary society (although we are told by the Judicial Committed that we had the same liberty as others to make rules) are nothing more and nothing less than the English ecclesiastical laws, so far as they are applicable. We cannot make any rules for ourselves, to suit our altered circumstances, that will bind eitlier clergy or laity. And who is to decide when they are applic- able, and how far? The civil courts of the colony, We have no power, according to this theory, to judge for ourselves in such matters. These are the words of the judgment. He says: "That any number of persulis, C 4
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