PUBLIC RECORD OFFICE
Reference -
TTT C.O.885
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3 PUBLIC RECORD OFFICE. LONDON
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effect of these Leters-Patent as between the trustees, who obtained the grant, the Plaintiff, to whom it was made, and the Members of the Church of
England, in the Colony of Natal, who have accepted, or submitted to it; and, in doing so, I have to con- sider whether, with reference to the law of England on this subject, as expounded by the Judicial Com- mittee of the Privy Council, these Letters-Patent do not attempt to confer powers which the Crown has
no legal power or authority to confer;—whether it
is true, adopting the words of Dr. Gray, the Bishop of Cape Town, used by him in February, 1851, in one of the documents in evidence in this cause, that whatever may be their general validity, so far as their practical efficacy is concerned, "they are worth little This distinction is one of more than waste paper." importance, and must be borne constantly in mind in this case: the Letters-Patent of the Crown may be generally valid, and yet be ineffectual to confer any privilege. The Sovereign may grant Letters- Patent, creating a new bishopric in those places where it is not forbidden by statute—as, for instance, in one of the dependencies attached to the Crown, but the person appointed Bishop may be prevented by law from performing any of the functions proper to be performed by a Bishop. I must, therefore, examine every part of these Letters-Patent, in order powers to ascertain to what, if any, extent they confer
or rights which cannot legally and validly be exercised or enforced. In other words, the Letters- Patent creating the see or diocese of Natal, and appointing the Plaintiff the Bishop thereof, may validly make him a Bishop, and confer upon him certain powers which he may legally exercise, and yet, at the same time, may also purport to give him other powers which he cannot legally exercise. If, however, this should turn out to be the fact, the circumstance that such excess of power is attempted to be conferred in and by the Letters-Patent does not render them wholly invalid, or vitiate that
which
may portion of them which confers powers legally exercised.
be
The purport and effect of these Letters-Patent I have already stated in detail; in order to determine their legal efficacy, it is necessary to notice what it is they have effected, and how far this falls short of what they have attempted to effect. They have appointed
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the Plaintiff the Bishop of Natal; they have com- manded the Archbishop of Canterbury to consecrate the Plaintiff such Bishop; the Archbishop of Can- terbury has accordingly done so. The first question
is, what is the effect of this? It is not disputed, and, indeed, it could not be disputed, that the nomi- nation, by the Crown, of the Plaintiff, and his con- secration by the Archbishop of Canterbury, have conferred upon him the title and dignity of a Bishop
of the Church of England, and also that he is thereby invested with all the powers and authority incidental to the office of Bishop, so far as such powers and authority can be exercised without coercive legal jurisdiction over his clergy!
In all the works that I have consulted on this subject the powers and authority of a Bishop are classed under three heads: 1. Ordo ; 2. Jurisdictio;
3. Administratio rei familiaris. The Letters-Patent of the Crown profess to give the two first of these powers: they do not profess to give the third.
The first, which is the power of orders, he derives from consecration, which, according to the doctrine
of the Catholic Church of Christ, of which the Church of England is a branch, is a sacred authority, derived by direct descent from the Apostles. By this power, so conferred upon him, he may transmit the spiritual power he possesses to others: he can ordain deacons and priests; he can consecrate and dedicate churches; he cau administer confirmation. This is the first and most important class of powers which a Bishop possesses. These powers are not confined to this or that spot, but are universal. They extend over the whole world.
In
But this, it is alleged, makes him only a titular Bishop, and not a territorial Bishop, for that by this he has no see or diocese attached to his office. order to appreciate the force and value of this remark, it is desirable to ascertain the origin of the distinction between a titular and a territorial Bishop; and here I may observe, to avoid misconstruction, that in the Letters-Patent and in the Judgments delivered in the Privy Council the words "see" and "diocese" seem to be employed as equivalent ex- pressions, although probably the word "see" bas strictly a more confined meaning than the word "diocese." The primary reason why a diocese, or, in other words, a limited territorial space, was
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