CO885-(2-3) — Page 282

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PUBLIC RECORD OFFICE

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11111 C.O.885

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PUBLIC RECORD OFFICE, LONDON

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lies within such limited scope of his authority, that question must then be decided; and accordingly that question was in fact decided in that case. No such question as that is now before me,

All

that I have to do on the present occasion is to explain how that Judgment, together with the Judgment in the case of In re

Bishop of Natal, bears on the question before me, which is, whether the Province of Natal has been made a diocese, and whether the Plaintiff is Bishop of that diocese, and

as such entitled to the benefit of the endowment

made for such a diocese.

On this subject an expression has been made use of in the Judgment given in the latter case before

the Privy Council, which is, I think, liable to be misunderstood, and which it is essential to notice.

It is there stated to this effect:-The Lord Chancellor, who delivered the Judgment, having observed that, after a colony has received legislative institutions, the Crown stands in the same relation to that colony as it does to the United Kingdom, proceeds thus: "It may be true that the Crown, as legal head of the Church, has a right to command the consecration of a Bishop, but it has no power to assign him any diocese or give him any sphere of action within the United Kingdom." This sentence taken literally-that is, if the words "United Kingdom" refer to the word diocese-is strictly correct, and such I consider to have been the meaning of the Court; but if, as some have supposed from the previous passage, it is construed to mean that the Crown cau create no see or diocese in such

any a colony as that of Natal or Cape Town, this, I apprehend, is not the meaning of the passage, and, if it were, the passage itself would be erroneous. To be properly understood, the sentence must be taken in conjunction with the whole context.

It is

not thereby intended to state that the Crown is unable to appoint a person a Bishop, and direct him

to exercise his functions in a colony dependent on the Crown, to the extent specified in the Judgment of Long Bishop of Cape Town,‡ within certain defined limits, where these functions do not interfere with any

other see or diocese lawfully created; nor

3 Moo. P. C. (N. S.) 115.

+ 3 Moo. P. C. (N. S.) 148.

: Moo. P. C. (N. S.) 411.

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is it intended to state that the territory, the limits of which are so defined, would not constitute a sec

or diocese properly so called; but it is thereby intended to state that the Crown has no power to constitute a see or diocese analagous to a see or diocese within the limits of the United Kingdom of England and Ireland, investing the Bishop with coercive jurisdiction. For instance, that the Crown could no more have created the see of Natal, and appointed to it a Bishop with all the coercive powers

of an English Bishop over all the inhabitants in that colony, than the Crown could have created the diocese of Ripon, or the diocese of Manchester, and, have appointed Bishops to preside over such dioceses without the authority of an Act of Parliament.

That this is the limited meaning of the passage is plain from the whole Judgment. Were it to receive a wider construction it would not be in accordance with the Judgment in Long v. Bishop of Cape Town,* which it adopts and professedly follows. The decision in In re Bishop of Natal + did not decide that the Bishop of Cape Town had not, as Bishop of the see, or diocese, any forum or tribunal within which he could lawfully exercise his authority as Bishop of that diocese, but that it was

a forum domesticum, which did not warrant the proceedings he instituted against the Bishop of Natal, and that there was nothing in his acts to give the consensual jurisdiction essential to any such forum; and further that, consistently with his duty as Bishop of Natal—that is as a Bishop of the Church of England he could not give any such consensual jurisdiction. In fact, it is not the coercive juris- diction which constitutes the see or the diocese. The early Bishops of the Christian church had a sec or diocese as completely before as they

had after the Christian church had become the religion of the State. Polycarp was as much Bishop of Smyrna, and Ignatius as much Bishop of Autioch, as Athanasius was Bishop of Alexandria, or Gregory Nazianzen Bishop of Constantinople, although the two former could only exercise jurisdiction over the members of the Church of Christ who submitted to their jurisdiction, while the two latter possessed coercive power derived from the Christian religion

• 1 Mon. P. C. (N. S.) 411.

+ 3 Mao. P. C. (N. S. 115.

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