BISHOP COLENSO'S APPEAL.
IN the greater number of human quarrels, if one can once I really get to thehottom of the facts of the case, if one can only be certain what the disputants have said and done, it is toler- ably easy to see which of them is in the right, or at all events which of them is least in the wrong. The quarrel between the Bishops of Cape Town and Natal is, however, not one of this kind. The elaborate arguments which occupied the attention of the Privy Council for four days, and were on the whole as concise as they were learned, have at least enabled the public to understand the facts, and the better the facts are understood the more doubtful does the law appear. And it is to be observed that the merits of the quarrel have not yet been so much as stirred. The Privy Council as yet has only been considering the preliminary question whether it has any jurisdiction to try the case at all, and the arguments have been addressed only to that point. It is not until the Court has been convinced that it has power to try the case that it will undertake to determine whether Dr. Gray gave the Bishop of Natal a fair trial and arrived at a just judgment. In fact, however, this apparently harmless question whether the Privy Council has any power to try the case raises questions perfectly new, which can only be decided by reference to the first principles of civil and ecclesiastical law, and are so obscure that one almost doubts whether the Council will not be obliged rather to cut than untie such tangled knots. It would certainly seem that if the Queen in Council is to exercise an appellate jurisdiction there must be a sentence of some court or another to appeal from. Is there any such sentence ? Is there any Ecclesiastical Court whatever in South Africa ? Nay, are there any such "Corporations sole" as the Bishop of Cape Town or the Bishop of Natal, or any such dioceses ? Can the Privy Council as a court of law see anything but the Right Rev. Dr. Gray, a person in episcopal orders and the Right Rev. Dr. Colenso, another person in episcopal orders ? Before this difficulty can be solved another question must be answered, which involves a dozen more. What is the effect of the patent by which the Bishop of Cape Town was created Bishop and Metropolitan ? That patent was issued . in 1853, after Her Majesty had granted to the colony of Cape Town an irrevocable constitu- tion; and the case of "Long v. the Bishop of Cape Town," which has been so constantly referred to in this case, decides that for that reason the patent was probably void, and certainly in- effectual to create a mitt of ecclesiastical jurisdiction in that colony. If the Lords of the Council now go a step further, and decide that the patent was altogether ultra vies and void, it would seem there is an end of the matter. Dr. Gray's sentence is a nullity, and there is nothing to appeal from. But may not the patent be bad in part and good in part? The col(itq of Natal has ever since the spring of 1847 been a perfectly independent colony, and it had no irrevocable constitution till 1856. If in 1853 the Crown had no legislative power in the Cape Colony, had it therefore none in Natal? Mr. Stephen on behalf of Dr. Colenso boldly says, "No." Natal in 1853 was governed by a Legislative Council established by a revocable charter from the Crown, and Mr. Stephen contends that though the Crown could revoke the charter it could not legislate so long as the charter was in force. In this view of the case, which, however, seems to be answered by the 6 and 7 Vic., cap. 13, it will be necessary to consider whether, to quote the Lord Chancellor, there is "a legal Bishop of Natal or a legal Metropolitan," and whether both are not alike "a mere baseless fabric from beginning to end." If the Court holds that the Crown had power to create an Ecclesiastical Court in Natal, what is the Court of the Metropolitan,—a Court of the Cape or of Natal ? It sits in the one, and its judgment affects the other. The same ques- tion is raised by the terms of Dr. Gray's patent, which, like most other legal documents, seems to be very infelici- tously worded. It is not necessary to pursue this branch of the subject further. We have probably said enough to con- vince our readers that even on this point the Lords of the Council have no easy task before them. There is, however, quite another view of the subject, which seems to have been adopted by the Council in "Long v. the Bishop of Cape Town." The members of the Church of Eng- land in a colony are not an Established Church, but simply a voluntary society governed by so much of the law of England as is applicable to them there. On this both the warring Bishops seem to agree. But then the questions to be decided • become absolutely innumerable. Of this, however, there is no doubt, that the Privy Council will decide nothing -which they are not absolutely obliged to decide, and if the Church in Africa is a voluntary society all its officials are rather arbi- trators than judges. Their decisions therefore, like those, for instance, of the Wesleyan Conference, can only be enforced through the medium of the ordinary civil courts. Is it possible that the Queen can have consented to act as feel arbitrator of a voluntary society ? Can any court of law be placed in each a position? We can readily understand how the Arch- bishop of Canterbury can occupy such a position without loss of dignity, and that seems to afford a good reason why the Crown in its patent transferred the "find appeal" to the Archbishop. If the Crown when it created Drs. Gray and Colenso Bishops was not legislating, but simply laying down rules for the guidance of the African Church, which affect only Churchmen who have voluntarily entered that society, then why should not the Crown make just what rules it pleased? No doubt Dr. Colenso says that he never has agreed to such a rule as that the Archbishop shall be the final arbitrator of the South African Church. He says he never read Bishop Gray's patent, but when he accepted his own patent he knew he was to be subject to Bishop Gray as Metropolitan, and if he had ever given the matter a thought he must have known that the powers of the Metropolitan would be defined in his patent. Probably he never did give the matter a thought, but before he took the oath of canonical obedience he should have done so, and he can hardly be allowed to plead his ignorance now. As a matter of fact we very much doubt whether the substitution of an appeal to the Archbishop for an appeal to the Crown would have given him any uneasiness in 1853, and the mere fact that Bishop Gray's patent is fifteen days the later in date does not seem very important. The resignation of Bishop Gray, the division of his see, his re-appointment as Arch- bishop, and the appointment of Dr. Colenso to be his suffragan and bishop of part of his old see, was in reality all one transaction. What, however, is difficult to comprehend is how the Queen in Council can control the proceedings of a voluntary society. Her decision if given would apparently be nothing but an expression of her personal opinion, like her selection of a capital for Canada, and when she interfered in the affairs of this society by giving it Bishops, it would seem that she expressly declined to exercise any judicial authority whatever. We are well aware that this view of the case was not presented to the Privy Council by either side, but it was not the object of either side. Dr. Gray wanted to make out that he hadjurisdiction, either coercive, or consensual, or both, and that in either case the appeal lay to the Archbishop. Dr. Colenso wanted to get a declaration that the patents were void, but still that he had an appeal to the Crown,. because such an appeal is a part of the law of England, applicable to the voluntary African society in communion with it. Indeed so anxious was he to secure this result, that his counsel actually contended that the Queen in Council had original visitatorial power over all Bishops, and that under certain old statutes of Henry VIII. and Elizabeth it could exercise all the power that the Pope exercised before the Reformation. Alarming as are Bishop Gray's claims to some mystical inherent authority derived from the Apos- tles, such claims as those put forth on behalf of the Crown are still more alarming. Nothing can be more certain than that no sovereign has ever pretended to exercise the Papal authority except through the medium of a Court of High Commission, and that the power to issue a commission was taken away by statute. Is to the visitatorial power the con- stitutional doctrine always has been hitherto that the Crown must exercise it through the legally constituted Ecclesiastical Courts, just as it can only administer civil justice through the civil courts. It is absolutely astounding that the Council should be asked on the faith of an obscurely worded section in an obsolete Act to advise the Queen to exercise a prero- gative which it is very doubtful if she possesses, and which certainly no one of her predecessors has ever assumed.
The fact seems to be that his position forces on Dr. Colenso a certain amount of inconsistency. What he really wants is an appeal from Dr. Gray's decision on the merits to a lay court. To do this he must to some extent blow hot and cold. He must first contend that the patents are not legal documents, and then that Bishops created by them have never- theless a legal position. If Dr. Gray has no authority over him, why does he not apply to the civil courts for a prohibi- tion? It is not very easy to parry this thrust, but the reason is nevertheless plain. The civil courts would only look at Dr. Gray as an arbitrator, and if he had jurisdiction and acted fairly would refuse to consider whether Dr. Colenso was rightly sentenced. But a decision whether he is right or wrong, heretic or no heretic, is just what Dr. Colenso wants, and that from a lay court.
What will be the advice which the Council will tender to the Crown we do not of course pretend to anticipate. But we can hardly hope that it will end even this litigation, still less that it will put the relation between the Colonial Churches and the English Courts on a clear footing. One thing alone seems to be plain in this welter of confusion and obscurity—that the creation of colonial bishoprics by patent merely is a proceeding of very doubtful wisdom. If it is not possible to give these Bishops a clearly defined legal position, and definite statutory powers, the Crown would do well not to meddle with such matters at all. If members of the Church in the colonies want bishops, they should go to the Episcopal Church of Scot- land for them. They are in precisely the same legal position as that Church—a voluntary society in communion with the Church of England. The Episcopal Church of Scotland has existed side by side with the Establishment since 1688, and there has never been any trouble with it, because it has nothing to do with the State. If the same sensible system had been adhered to in the colonies where there is no Establishment the result would have been equally satisfactory.
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