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of avoidance, the removal of the incumbent for any lawful cause, Mr. Long did voluntarily submit himself to the 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 authorize the deprivation of a clergyman by his Bishop in England. We 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.""

Having done this, their Lordships proceed to consider whether, according to the law of the Church of England, Mr. Long had so acted as to justify his suspension and subsequent deprivation, and they determine that he had not so acted. The manner in which they characterize the assembly convened by the Bishop is as follows:*—

"It was a meeting of certain persons, both clergy and laity, either selected by the Bishop, or to be elected by such persons and in such manner as he had prescribed, and it was a meeting convened, not for the purpose of taking counsel and advising together what might be best for the general good of the society, but for the purpose of agreeing upon certain rules, and establishing, in fact, certain laws by which all members of the Church of England in the colony, whether they assented to them or not, should be bound,

"Accordingly, the synod, which actually did meet, passed various Acts and Constitutions, pur- porting, 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.” In what sense illegal? Not certainly illegal if all

the members of that church had previously agreed to be bound by such an assembly, but illegal because not justified by the discipline and ordinances of the Church of England, by which alone Mr. Long had 1 Mou. P. C (X. §.) 464.

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agreed to be bound. This decision, therefore, is far from deciding, that the Bishop in these colonies has, by virtue of his appointment by the Letters. Patent, no jurisdiction and no tribunal; what it does decide is, that the tribunal of the Bishop is a forum domesticum, und not a State tribunal; that it

is not a Court of the Colony of the Cape of Good Hope, exercising authority by reason of the Church

of England being the religion of the State of the Colony of the Cape of Good Hope, but that it is a domestic tribunal of the Bishop, the essence of which is, that the jurisdiction is only over those persons who assent to it, and the jurisdiction is what

is usually called consensual" jurisdiction. All

All the persons professing to be members of the Church of England are, by this decision, held to have assented

to the jurisdiction of this forum, so far as the Bishop does not overstep his authority—that is, the authority

of a Bishop of the Church of England-to the full extent that such authority is not derived from that religion being the religion of the State, or from statutes which have operation solely within the United Kingdom. It was because the Bishop had exceeded that authority, and because the Lords of the Privy Council could not find anything in the evidence to show that Mr. Long had assented to anything more than this, that they declared the sentence of the Bishop of Cape Town to be null and void.

It is neither necessary nor desirable that I should attempt to define the limits of the authority which

a Bishop of the Church of England could exercise in such, his forum domesticum, or distinguish it from those further and additional powers which can be exercised within the United Kingdom, which are derived from the Church of England being therein

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the religion of the State, and from those which are also derived from the provisions of statutes which have force only within that Kingdom. distinction, however, is obvious and important. A Bishop in England is the Bishop over all the inhabi- tants within the diocese; a Bishop in the colony is Bishop only over all the members of the Church of England resident within the colony. Whenever the question arises, as it did in Long v. Bishop of Cape Town,* viz., whether the act done by the Bishop

* 1 Mov. P. C. (N. S.) 411.

ELT TUI

PUBLIC RECORD OFFICE

Reference

C.O. 885

PUBLIC RECORD OFFICE, LONDON

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