CO885(2-3) — Page 290

PUBLIC RECORD OFFICE

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TITTC.O.885

3 PUBLIC RECORD OFFICE, LONDON

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

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possible not to look a little at ulterior consequences, and although it is not safe, when expounding the law on any subject, to rely on the results of the decision, still it may not be improper to point out what would be some of the difficulties which would arise if I were to adopt the arguments of the Defendants and dismiss the Plaintiff's bill. If no portion of the funds of which the Defendants are trustees can be applied towards the payment of the salary of the Bishop of Natal, no portion of these funds can properly be applied towards the payment of the salary of any other Colonial Bishop similarly circumstanced. Are no more Bishops to be appointed in Colonies having an established Legislature and having no established Church? Are the ministers and congregations of the Church of England in such Colonies to be left without the advantages which are found to flow from the superintendence and watchful care of a Bishop?

Another difficulty, and one which would seriously affect the Defendants, is this: If the suit of the Plaintiff were dismissed, what is to be done with the money dedicated for the endowment of a Bishop of Natal, and the accumulated income since 1864? Is it to go on accumulating? Is it to be retained by the trustees for their own benefit because no cestui que trust exists? Can it be returned to the sub- scribers? and if not, is it to be applied cy près ? The mere statement of these propositions shows that it is impossible that any one of them should be adopted. In my opinion the truth is shortly this: these funds were subscribed to induce the Crown to appoint a Bishop of Natal. The Crown acceded to that wish of the subscribers, and by Letters-Patent appointed the Plaintiff Bishop of Natal, and the Archbishop of Canterbury has duly consecrated him Bishop of Natal, in compliance with the directions of the Sovereign; and accordingly the Plaintiff is Bishop of Natal in every sense of the word, and will remain so until he dies, or resigns, or until the Letters-Patent appointing him are revoked, or until he is in some manner lawfully deprived of bis sce.

I cannot, however, conclude the observations I have to make on this case without guarding against a misapprehension which might seem to flow from the words I have last used, as if I were of opinion

that the Plaintiff could not by any means he re-

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moved from being Bishop of Natal. Such is not my opinion. I wish it to be distinctly understood that I do not mean to assert that as soon as the Plaintiff's nomination by the Crown and his appoint- ment by Letters-Patent had been consummated by his consecration by the Archbishop, whatever might be his conduct or opinions, he must for ever remain Bishop of Natal, and enjoy the endowments attached

to that office, even though the Letters-Patent appointing him had never been revoked. On the contrary, I entertain no doubt that, if he had not performed his part in the contract entered into by him-that if he had failed to comply with covenants of his trust”—he could not compel pay- ment of his stipend. The contract he has entered into is involved in the words "Bishop of the Church

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of England as by law established." The duties, the teaching, the superintendence, the pastoral care, the watching of his flock, which appertain to a Bishop,

he undertook and was bound to perform; and if. by his own wilful default, this has become impossible,

I do not mean to lay down that he could maintain, a suit in this Court for the payment of his salary as Bishop of Natal,

If, for instance, he had renounced the faith of a Christian, or if he had renounced the doctrines and precepts of the Church of England, I do not mean by anything I have stated to suggest that he could have retained his position as a Bishop, or have enforced the payment of his salary; in fact, the contrary has been laid down in several cases which have come before this Court, as, for instance, in Attorney-General e. Welsh, where an endowment was made for a society of Presbyterians in com- munion with the Church of Scotland, and the ministers and majority of the congregation seceded to the Free Kirk, it has been held that the minority who still clung to the Church of Scotland was entitled to keep the endowment and to appoint another minister; and the like has been decided in many other cases. But, as I observed at the outset of these observations, no such case as that which I have suggested has been presented to me, nor, having regard to the pleadings in this suit, could such a case have been argued before me. Not a word in the pleadings and evidence before me is breathed

• 4 Ilare, 372.

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