CO885-(2-3) — Page 224

PUBLIC RECORD OFFICE

Reference

TLC.O.885

3 PUBLIC RECORD OFFICE, LONDON

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

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of the Cape of Good Hope or of the Legislative Council of Natal.

Previously to these Letters-Patent being granted the District of Natal had been erected into a distinct and separate Government; and, by Letters-Patent granted by the Crown in 1847, it was ordained that it should have a Legislative Council which should have power to make such laws and ordinances as might be required for the peace, order, and good government of the district. With respect to the Cape of Good Hope, by Letters-Patent dated 23rd May, 1850, it was declared and ordained by Her Majesty that there should be within the Settlement of the Cape of Good Hope a Parliament, which should be holden by the Governor, and should con- sist of the Governor, a Legislative Council, and a House of Assembly, and that such Parliament should have authority to make laws for the peace, welfare, and good government of the Settlement.

In the year 1863 certain charges of heresy and false doctrine were preferred against the Appellant before the Bishop of Cape Town as Metropolitan, and, upon these charges, the Bishop of Cape Town, claiming to exercise jurisdiction as Metropolitan, did, on the 16th day of December, 1863, sentence, adjudge, and decree the Appellant, the Bishop of Natal, to be deposed from his office as such Bishop, and to be further prohibited from the exercise of any Divine office within any part of the Metropolitan Province of Cape Town. In pronouncing this Decree, the Bishop of Cape Town claimed to exer- cise jurisdiction as Metropolitan by virtue of his Letters-Patent, and of the office thereby conferred on him, and as having thereby acquired legal autho- rity to try and condemn the Appellant; and the Appellant protested against such assumption of jurisdiction.

This sentence and decree of Dr. Gray as Metro- politan has been published and promulgated in the Diocese of Natal, and the Clergy of that Diocese have been thereby prohibited from yielding obe- dience to the Appellant as Bishop of Natal.

In this state of things three principal questions arise, and have been argued before us: First. Were the Letters-Patent of the 8th December, 1853, by which Dr. Gray was appointed Metropolitan, and a

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Metropolitan Sec or Province was expressed to be created, valid and good in law? Secondly. Sup- posing the ecclesiastical relation of Metropolitan and Suffragan to have been created, was the grant of coercive authority and jurisdiction expressed by the Letters-Patent to be thereby made to the Metropolitan valid and good in law? Thirdly. Can the oath of canonical obedience taken by the Appellant to the Bishop of Cape Town, and his con- sent to accept his see as part of the Metropolitan Province of Cape Town, confer any jurisdiction or authority on the Bishop of Cape Town by which this sentence of deprivation of the Bishopric of Natal can be supported?

With respect to the first question, we apprehend

it to be clear, upon principle, that after the establish- ment of an independent Legislature in the Settle- ments of the Cape of Good Hope and Natal, there was no power in the Crown by virtue of its Preroga- tive (for these Letters-Patent were not granted under

the provisions of any Statute) to establish a Metro- politan See or Province, or to create an Ecclesiastical Corporation whose status, rights, and authority the Colony could be required to recognize.

After a Colony or Settlement has received legis- lative institutions the Crown (subject to the special provisions of any Act of Parliament) stands in the same relation to that Colony or Settlement as it does

to the United Kingdom.

It may be true that the Crown as legal Head of the Church has a right to command the consecra- tion of a Bishop, but it has no power to assign him any diocese, or give him any sphere of action within the United Kingdom. The United Church of England and Ireland is not a part of the Con- stitution in any Colonial Settlement, nor can its authorities or those who bear office in it claim to be recognized by the law of the Colony, otherwise than as the members of a voluntary association.

The course which legislation has taken on this subject is a strong proof of the correctness of these conclusions. In the year 1813 it was deemed expe- dient to establish a Bishopric in the East Indies (then under the Government of the East India Company), and although the Bishop was appointed and consecrated under the authority of the Crownt, yet it was thought necessary to obtain the sanction