CO885(2-3) — Page 289

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not

fairly said that "the Bishop nominated to the see of Cape Town is declared to have no effective eccle- siastical jurisdiction," because his decisions are liable to be revised by a Court of Law to this extent- that wherever he exceeds the scope of his authority, as established by the rules and discipline of the Church of England, and wherever he does* proceed in a manner consonant with the principles of justice, his decisions are void and of null effect? The Bishop of Cape Town, the Bishop of Natal, the Bishops of all Colonies similarly circumstanced- i. e., having an established Legislature, but having no established Church-can, as regards the ministers and congregations of the Church of England within their diocese, exercise all the powers of a Bishop; they can ordain, confirm, and consecrate; they can do more—they can visit, investigate, reprove, sus- pend, and deprive; and if, in so doing, they keep within the due scope of their authority as esta- blished by the discipline of the Church of England as by law established, and proceed in the exercise of that authority in a manner consonant with the principles of justice, their acts are valid, and will be enforced by the legal tribunals. It is only when their acts fail in these respects, when they exceed their authority as regulated by the law of the Church of Euglaud, or when they proceed in a manner not consonant with the principles of justice. that the Bishops cease to be able to enforce their decisions. Surely this is not such an evil as to make subscribers believe that they have applied funds for the purpose of constituting an order of things which, in the Colonies, will fail to secure "main- tenance of the doctrine and discipline of the Church of England by law established." I am also at a loss to understand why the prelate so appointed is less a Bishop because he does not possess coercive juris- diction, incidental to an episcopal tribunal, to try ecclesiastical offences within his diocese, of which he is the head, than because he is deprived of, or rather has not had conferred upon him, the administration of the personal property of deceased persons which did formerly belong to an English Bishop in England.

The three powers belonging to a Bishop, according to all principal authorities, are-first, the power ordinis; second, jurisdictionis; third, administra

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tionis rei familiaris. The Colonial Bishop possesses the first unfettered, without control or appeal; the second he possesses in this way—that he must apply

to lay tribunals to enforce his decisions, which lay tribunals will review them, and consider their cor- rectness according to the law which the Bishop him- self is bound to administer, to the extent I have above stated; the third- he does not possess at all-it was not ever proposed to be given to him-it belongs to a different officer, and to a different tribunal. The absence of this authority, or of this not disturb the Defendants; it does not, in their opinion, or, indeed, in the opinion of any one, affect

power, does

his status as a Bishop; but because a fetter is imposed on the second of his powers, by which he is constrained, when the matter is questioned before

a Court of Law, to show that he has exercised his jurisdiction within the scope of his authority as established by the law of the Church of England, and also that he has proceeded in a manner con- sonant with justice, it is supposed that he is no longer the Bishop of a diocese, and that the object which the subscribers had in view in causing his appointment is entirely frustrated.

It is, no doubt, open to all tribunals to err, and it may, and probably does, appear to many persons who have carefully considered, and who take a deep interest in, this subject that the lay tribunal is less likely to understand, and less likely fully to appre- ciate, the bearing and importance of a religious question, though one relating solely to the extent of the Bishop's authority and his mode of exercising it, than a tribunal composed of ecclesiastical personages would do; and this consideration unquestionably opens a very large question, which is, whether it is a beneficial condition of things that the State should be superior to the Church in matters ecclesiastical. But the solution of this question does not lie within my province; it cannot affect my decision m the present occasion; it is sufficient for me to point out that the fundamental principle of the Church of England puts the Sovereign at the lead of all causes, ecclesiastical as well as civil, and consigns the decisions of matters ecclesiastical in the last resort to the Sovereign herself, with the assistance of the

members of her Privy Council.

In reviewing the whole of this case, it is im-

PUBLIC RECORD OFFICE

Reference -

TTIC.O.885

3 PUBLIC RECORD OFFICE, LONDON:

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO