CO885(2-3) — Page 278

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MMC.O.885

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Natal, that he could if he were the Bishop of an *English diocese, with this exception. that he cannot enforce the execution of these orders without having The recourse to the civil tribunals for that purpose. Letters-Patent, therefore, are inoperative in that respect they are also inoperative in this further matter, that they purport to give an appeal to the

Bishop of Cape Town, and they also purport to give.. an appeal from the Bishop of Cape Town to the Archbishop of Cauterbury, to whom no such appeal by law can lie, so as to enable the Bishop of Cape Town or the Archbishop of Canterbury to enforce the coercive jurisdiction in these matters which the Bishop of Natal was unable to exercise. It is not that there is no appeal in such matters; but the appeal, such as it is, the extent of which I shal! presently point out, lies to the civil tribunal, and from the civil tribunal in the colony to the Sovereign herself in Council, who, with the assistance of her councillors, will determine the question between the parties.

The more have considered this question, which I have done very carefully, the more I have found myself at a loss to understand why, the duties and functions of the Bishop remaining in every respect the same, the fact that in order to enforce obedience to his orders, and to remove obstructions interposed to impede his action, he must have recourse to the secular arm instead of enforcing it by his own power, that is by officers of his own Court, in any degree affects his status or position as a Bishop. He is a titular Bishop all the world over; he is a territorial Bishop within his see or diocese of Natal; and with the assistance of the secular tribunals he can per- form all the acts and duties which belong to the office of a Bishop according to the doctrine of the Church of England. It is clear that this was all that was included in the word "Bishop" from the earliest institution of that office down to the time when, the Christian religion having become the religion of the State, coercive jurisdiction was con- ferred on the prelates of the Christian Church.

It is, in my opinion, impossible correctly to assert that this necessity of resorting to the civil tribunal, instead of enforcing obedience by the jurisdiction of the Church itself, can annihilate a see or make it cease to be a legal diocese. On the contrary, I

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believe that when a careful inquiry is made into what

the difference is that lies between them, it will be found that the law, as pronounced by the Judicial Committee, is likely to afford greater stability and unity to the Church of England in her Colonial dependencies than if the law had been as contended for by the-Bishop of Cape Town. In the one case, if the Letters-Patent effected all that they were originally supposed to effect, the law on the subject would be declared by one prelate of the Church of England, with an appeal to another prelate, and possibly finally to the Primate of all England, where the matter would end. In the other case, the lawy would be declared by a civil tribunal with an appeal

to the Sovereign in Council, where also the matter would end. The law, it is important to observe, is and must be the same in both cases, and ought to

be similarly administered, and that law is the law of the doctrines and ordinances of the Church

of England. The former are fixed and immutable, the latter are equally fixed until altered by statute. This law, whether it be enforced by the ecclesiastical

or by the civil tribunal, is the same, and should receive the same construction, and, when ambiguous, the same interpretation; but if it be administered by different tribunals, a variation and discordance will arise which would be much to be deplored.

In order satisfactorily to explain my meaning in this matter, it is necessary to point out what I consider to be the real position of the Church of England in these colonies. It is declared in the Judgment of the Judicial Committee, that the Church of England in the colonies which have an established Legislature, and no Church established by law, is to be regarded in the light of a voluntary association,* “in the same situation with any other religious body, in no better, but in no worse position, and the members may adopt, as the menibers 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."

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These expressions have created some alarm, which has, as it appears to me, arisen from an imperfect apprehension of what is meant by them. They do not meal, as some persons seem to have supposed, that because the members of such a Church consti-

• 1 Mao. P. C. (N. S.) 461.

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