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must be convened, prorogued, dissolved, restrained, and
regulated by the Queen. No convocation of the bishops
and clergy of the Church of England can assemble
except by the express authority and command of the
crown. Such authority has usually been given at the
summoning of every session of Parliament, and it is now
agreed that the Convocations, or provincial synods, of
the two provinces of York and Canterbury (which are
the ancient ecclesiastical councils of the archbishops)
are of right to be assembled concurrently with Parlia-
ment. By writs directed to the archbishops, respec-
tively, the crown exercises the right of summoning and
of proroguing Convocation. 16 But by the Act of Sub-
mission passed in 1532, the clergy have renounced the
right to enact any new canons, constitutions, or ordi-
nances, ' unless the king's most royal assent and license
may to them be had, to make, promulgate, and execute
the same.' l It has, indeed, been claimed, on behalf of the
bishops of the Church of England, that they are at full
liberty to assemble ordinary diocesan synods, to delibe-
rate upon questions of faith and practice, but not to
proceed to enact new canons, &c., without the previous



1 26 Henry VIII. c. 14. Mr.
Gladstone, Hans. D. v. 200, p.
987.

J Browne on the Articles, ed. 1864,
p. 7!>4. Hans. D. v. 207, p. 1213.



k Trevor on Convocations, pp. 126
155.

1 Stat. 25 Henry VIII. c. 19. See
Hans. D. v. 179," p. 1269 ; v 180,
p. 1160.



IN MATTERS ECCLESIASTICAL. 605

license of the crown. m But this is very doubtful ; n at
any rate, * it is admitted that diocesan synods, whether
lawful or not, unless with the license of the crown,
have not been in use in England for above two cen-
turies.'

So far, at least, as convocation is concerned, all juris- Conv
diction that may be exercised by Convocation must be
subject to the authority and control of the sovereign.
By virtue of the Queen's writ of summons, Convocation
is empowered to deliberate upon matters affecting the
interests of religion and of the Church. It is well
known that, from the time of George I. (1717) until a
very recent period, it was a regular practice for the
crown to interpose and stop the deliberations of Convo-
cation by a prorogation, immediately after they had
formally assembled. But of late years a different policy
has prevailed, and it has been deemed expedient that
an opportunity should be afforded to the Church in
Convocation to enter upon the free discussion of all
ecclesiastical questions. If the crown wishes particular
subjects to be discussed in convocation, a ' letter of
* business ' is issued, directing the Consideration of Con-
vocation to be applied to the subjects specified therein.
But another instrument, namely, a ' royal license,' is
required by the Act of Submission to warrant Convo-
cation in enacting a new canon, or, as it is termed,
' alleging or putting in use any existing ordinance or
canon ; ' in other words, passing any judgment, opinion,
or sentence upon the question that has been debated.

Upon the assembling of the Convocations of Canterbury and
York in February 1872, pursuant to the Queen's writ, royal letters
of business, and a royal license, were severally issued for the pur-
pose of enabling them to consider and report upon the matters
contained in the Fourth Report of the Ritual Commission, and the



m Joyce's Sabred Synods, p. 40 ; Melbourne's Memorial, Com. Pap.

Pro. Church Congress.' York, 1866. 185H, v. 44, p. 142.

See arguments in Moore's P. C. Moore, P. C. C., N. S. v. 1, p.

C., N. S. v. 1, p. 434 ; and Bishop of 464.



606 THE ROYAL PREROGATIVE

Convocations reported thereon.P A Bill was afterwards passed
through Parliament to give effect to certain recommendations of the
Ritual Commissioners, but in the House of Commons the preamble
was amended, by striking out words which implied that the existing
law was altered ' in pursuance of a report made by Convocation.'
It being undeniable that Parliament is competent to legislate upon
ecclesiastical questions without the assent of Con vocation. 1 In
June, .1874, this letter of business was renewed, so as to enable Con-
vocation to consider further upon the matters aforesaid. This
renewal was necessary because the original letter ceased to be
operative after the dissolution of Parliament, in January 1874. r
The question remained in abeyance until 1879, when Convocation
agreed upon a draft Bill to be submitted to Parliament in a future
session.

No ordinance or sentence agreed upon in Convocation
has any legal validity until it has received the sanction
of the crown ; and if any attempt be made to enforce
the same without such sanction, the parties concerned
would incur the penalties of a prsemunire. 8

2. The position of the Church of England in the Colonies.
Church of The principle of constitutional law which requires

England . . ? .

in the that the prerogative ot the crown in matters ecclesias-
>ionies. tical shall be exercised within the limits prescribed by
Parliament, applies with equal force to the erection of
episcopal sees in the colonies of the United Kingdom.
The Church of England, however, cannot be regarded
as an Established Church in any British colony.

In crown colonies, that is to say, colonies which
have been acquired by conquest or cession, and which
do not possess separate legislative institutions the legis-
lative power being exercised by the crown, through
orders in council bishoprics may be constituted, and a
measure of ecclesiastical jurisdiction conferred, by the
sole authority of the crown. This has been done in the



Com. Pap. 1872, v. 46. p. 39. Hans. D. v. 204, p. 1069. Ld.

* Hans. D. v. 211, pp. 889-897, Chanc. "Westbury, in Hans. D. v.

1088. 176, p. 1544. Att. Gen. (Sir R.

' lb. v. 220, p. 513. Palmer) Ib. v. 180, p. 600.



IN MATTERS ECCLESIASTICAL. 507

crown colonies of Ceylon, Sierra Leone, St. Helena, colonial
and the Mauritius, and also at Gibraltar. In all these Cnurcht
places episcopal sees have been established by the
authority of the crown, which had a legal connection
with the Church in the mother-country. But even in
the case of crown colonies, it should be remarked, that
since the repeal of the Act, 1 Eliz. c. 1,* which enabled
the sovereign to appoint persons who could execute all
manner of ecclesiastical jurisdiction in any country be-
longing to the English crown, there is no power in the
crown alone to create any new or additional ecclesiastical
tribunal with coercive jurisdiction within the realm.
4 It is a settled constitutional principle or rule of law,
that although the crown may by its prerogative esta-
blish courts to proceed according to the common law,
yet that it cannot create any new court to administer
any other law ; and it is laid down by Lord Coke in the
Fourth Institute, that the erection of a new court,
with a new jurisdiction, cannot be without an Act of
Parliament.' v

The Church of England in a crown colony is pro-
hibited from making any regulation which is at all at
variance with the ecclesiastical law of the Church in the
mother-country. w Moreover, the power of the crown
in any such colony must be exercised within the limits
prescribed by constitutional law. Notwithstanding the
opinion which has been expressed by some eminent
authorities, 1 that the position of episcopal sees in the
crown colonies is not affected by the judgment of the
Privy Council in Bishop Colenso's case, it may be



' By the Act 16 Car. I.e. 11. And Colonies, in Forsyth, Const. Law,

see 13 Car. II. c. 12. pp. 65-63.

u Judgmt. of P. Coun. in re the T Judgmt. of P. Coun. in Bishop

Bishop (Colenso) of Natal. Moore's Colenso's case.

P. C. C., N.S. v. 3, p. 115. Ib. v. 1, p. w Case of the Diocese of Colombo,

436. Arguments in case of Long v. Com. Pap. 1866, v. 49, p. 228.

the Bishop of Cape Town. And see x Bishop of London, Hans. D. v.

a digest of all cases and opinions 184, p. 511. Ld. Carnarvon (col.

on Eccles. Law applicable to the secretary), Ib. p. 803.



508 THE ROYAL PREROGATIVE

assumed that the power of the crown in such colonies
is shown by this decision to be limited to the issue of
letters patent, 7 sufficient in law to establish personal
relations between the bishop and his clergy, as eccle-
siastics, and which merely confer powers that can be
enforced by mutual agreement ; and that no bishop so
appointed, under the provisions of his letters patent,
possesses any coercive legal authority whatsoever.

The contrary opinion was maintained by Bishop Colenso, in his
argument before the Supreme Court of Natal, in September, 1867,
in the case of the Bishop v. the Dean of Maritzburg. But the judg-
ment of the court, in January following, disallowed the act of the
bishop in depriving the dean of his office, though it allowed him to
assume control over the Church buildings in the diocese.*

Any bishop appointed by the sole authority of the
crown to any colonial diocese, unless he has obtained
from the Imperial Parliament, or from the local legis-
lature, power to enforce his decrees, must resort to the
civil tribunals for that purpose ; and they will give or
withhold their assistance accordingly, as they are satis-
fied that he has rightly exercised his episcopal func-
tions in the particular instance.

In the case of new settlements (not being crown
colonies) and colonies which have received legislative
institutions,* it is clear that the crown (subject to the
special provisions of any Act of Parliament) stands in
the same relation to such a settlement or colony as
it does to the United Kingdom ; and although it may
authorise the consecration of a bishop in and for the
benefit of the Church of England in any such colony,
and thereby establish * personal relations ' between the



1 For copies of letters patent here- were authorised to be established by

tofore issued, creating colonial bi- the imperial Acts, 53 Geo. III. c.

Bhoprics, with or without metropo- 155, 49, and 3 & 4 Will. IV. c.

litan powers. See Com. Pap. 1866, 86, 03. See also 6 & 6 Viet,

v. 49. p. 181. c. 119, and 34 & 35 Viet. c. 62.

* Com. Pap. 1867-8, v. 48, p. 465. The Enst India bishops are still ap-

* See Act 6 & 7 Viet. c. 13. Cer- pointed by the Queen, by letters
tain bishoprics in the East Indies patent. Com. Pap. 1871, v. 60, p. 739.



IN MATTERS ECCLESIASTICAL. 609

said bishop and his clergy, it has no power to assign
him any diocese, with diocesan jurisdiction, or coercive
legal authority therein, without a special Act being first
passed by the imperial or colonial legislature, autho-
rising the issue of letters patent for that purpose.

In 1824 a bishop was appointed in Jamaica by letters patent,
but his legal status and authority were defined and established by
an Act of the colonial legislature, which was confirmed by the
crown. And there are bishoprics in Antigua, Barbados, and
Guiana, which have been recognised and confirmed by Acts of the
Imperial Parliament, or of the local legislatures. 6

For ' no metropolitan, or bishop, in any colony
having legislative institutions can, by virtue of the
crown's letters patent alone (unless granted under an
Act of Parliament, or confirmed by a colonial statute),
exercise any coercive jurisdiction, or hold any court or
tribunal for that purpose. Pastoral or spiritual autho-
rity may be incidental to the office of bishop, but all
jurisdiction in the Church, where it can be lawfully
conferred, must proceed from the crown, and be exer-
cised as the law directs ; and suspension or deprivation
~of office is a matter of coercive legal jurisdiction, and
not of mere spiritual authority.' c

Our definition of the legal status of a bishop of the Case of
Church of England, in a colony or dependency of the
British crown, is taken from a judgment of the Privy
Council in March, 1865, in che case of Dr. Colenso,
bishop of Natal, who was deprived of his episcopal
functions after a formal trial and condemnation for
heretical opinions, before a synod of the Church in
South Africa by his metropolitan, Dr. Gray, the bishop



b Papers relating to Church of this judgment, see Hans. D. v. 185,

England in the Colonies. Com. Pap. pp. 386, 392. Ib. v. 186, p. 383. And

1867, v. 48, p. 855. see Long v. the Bp. of Capetown, in

< Privy Coun. Judgt. Bp. of Natal Moore's P. C. C., N. S., v. 1., p. 411.

v. Bp. of Capetown. Judgment of And see Ex parte C. A. Jenkins,

Master of the Rolls, on Bp. Colenso's Clerk, and Att.-Gen. of Bermuda, L.

salary, Nov. 6, 1866. Jurist Rep. N. T. Rep. N. S., v. 19, p. 583.
S. v. 12, p. 971. For comments on



510



THE ROYAL PREROGATIVE



Bishop O f Capetown. Upon the appeal of Bishop Colenso to
the Privy Council, the decision of the metropolitan was
set aside, upon the ground of want of the necessary
authority and jurisdiction to determine upon the case.
In reviewing the legal position of the parties concerned,
the Privy Council declared that while the sovereign had
undoubted right, by virtue of her prerogative, to give
style, title, dignity, and precedence, in all parts of her
dominions, yet that she had no power to issue letters
patent professing to create episcopal sees, or to confer
diocesan jurisdiction, or coercive legal authority, in
colonies that were in possession of legislative institu-
tions, or wherein the Church of England had not been
established by law, without express legislative sanction.
Eepresentative institutions had been granted to Natal in
1847, and to Capetown in 1850, consequently the letters
patent of Drs. Gray and Colenso, which were issued in
1853, without the necessary authorisation, were null
and void for any legal purpose whatever.

This vexed question was still further complicated by a decision
of the Supreme Court of Natal, in January 1868 (in the case of
Bishop Colenso v. Mr. Green), to the effect that Natal was a crown
colony, at this period, whilst the Privy Council based their judgment
on a contrary assumption. The home government afterwards
submitted the matter to the law officers of the crown for their
opinion. d

Effect of Adverting to this judgment it was stated by the

ment U oF Attorney-General in the House of Commons on March 27,
the Privy 1865, that the Privy Council thereby determined (1),

Council . IT 111

that no legal dioceses are created by letters patent in
the colonies possessing representative institutions, or in
which the Church of England had not been previously
established by law ; (2) that the letters patent hereto-
fore illegally issued for the erection of episcopal sees in



d Hans. D. v. 106, p. 468. On this 1883, p. 313 : reprinted in his para-
point see Ld. Blachford's Letter in phlet on 'The Legal Development of
the London ' Guardian' of Feb. 28, the Colonial Episcopate.'



IN MATTERS ECCLESIASTICAL. 511

such colonies do not create any legal identity between Colonial
the Episcopal Church presided over by these bishops, l
and the United Church of England and Ireland ; (3)
that these letters patent do not introduce into those
colonies any part of the English ecclesiastical law ; (4)
that they confer on the bishops no legal jurisdiction or
power whatever ; and add nothing to any authority which
the bishops may be legally capable of acquiring by the
voluntary principle, without any letters patent or royal
sanction at all. The maximum operation of these letters
patent seems to be, to incorporate the bishops and their
successors, not as an ecclesiastical corporation in the
colony, whose status, rights, and authority the colonies
would be required to recognise ; but simply as a
common legal corporation, which it is in the ordinary
prerogative of the crown to create, and for which no
statutory powers are required. 6 On May 30, the colo-
nial secretary informed the House of Commons that,
upon the advice of the law officers of the crown, the
government had decided that, under existing circum-
stances, no letters patent to bishops ought to be issued
~to colonies having representative institutions.

The phrase employed in the Privy Council judgment, was ' legis-
lative ' institutions, which includes a nominated crown council, such
as actually existed at Natal, at the time that Bishop Colenso's
patent was issued/ Letters patent continue to be issued for the
consecration of bishops to sees in the East Indies.^

In filling up a then-existing vacancy in the diocese of
Eupert's Land, the following course was pursued ; a
letter was addressed by the Archbishop of Canterbury
to the colonial secretary, upon which her Majesty was
pleased to issue a mandate to the archbishop authorising
him to consecrate a bishop, but no letters patent were
issued purporting to convey jurisdiction conferred by
the crown. h '

The Queen v. Eton College, 8, London Guardian, Dec. 6. 1876
Ell. and B. p. 635. p. 1593.

* Hans. D. v. 185, p. 397. h Hans. D. v. 178, p. 276; v. 179,



612 THE ROYAL PREEOQATIVE

It was afterwards decided by the colonial secretary, with the
advice of the crown law officers, that ' a mandate from the crown is
not necessary to enable colonial bishops to perform the act of conse-
cration.' Case of the bishop of Niagara. 1

The authority presumed to have been conferred upon

a colonial bishop, by his letters patent, ' to perform all

Colonial the functions appropriate to the office of a bislfop in a

diocesan A

synods. colony, did not ' confer power to convene a meeting of
clergy and laity, to be elected in a certain manner pre-
scribed by him, for the purpose of making la\vs binding
upon churchmen.' ' Such a meeting/ it was held, was
* not a synod, and its acts are illegal, if they purport,
without the consent of the crown or the colonial legis-
lature, to bind persons beyond its control, and to
establish new courts of justice. ' j

Episcopal In Canada, so early as the year 1855, application
Canada. m was m &de to the Imperial Parliament, by a joint address
from both Houses of the Canadian legislature, for the
repeal of such imperial statutes as impeded the clergy
and laity of the colonial church from meeting in synod,
and from electing their own bishops ; but after con-
sulting the law officers of the crown, the secretary of
state for the colonies recommended that the powers
sought for should be conferred by an Act of the Cana-
dian legislature, as had already been done in the colony
of Victoria. Whereupon the Act 19 & 20 Viet. c. 141
was passed to enable the members of the Church of
England in Canada to hold synods, and to elect their
own office-bearers. Being reserved for the signification
of the royal pleasure thereon, this Bill was disapproved
by the crown law officers, who were of opinion that,
in order effectually to legalise the election of Canadian



p. 1100. See the Correspondence, Colonies) 1867, v. 48, p. 866. Hans,

and form of mandate in Corresp. rel. D. v. 185, pp. 387-391.

to Colonial Bishoprics, No. 1, 1866, J Case of Long v. the Bishop of

p. 19. Capetown, in Brodrick's Judgments

' Com. Pap. (Ch. of Eng. in the of the P. Coun. p. 294.



IN MATTERS ECCLESIASTICAL. 513

bishops an imperial statute would be requisite. The
Bill, however, was referred to the Judicial Committee of
the Privy Council, who, after hearing counsel on the
matter, advised that it should receive the royal assent.
Whereupon it was specially ratified by the Queen in
council. k Since the passing of this Act, the crown has
deliberately surrendered the right of nominating bishops
in Canada, and of approving the choice thereof by the
clergy and laity. 1

In view of the altered position of the Church of England in the New Zea- .
colonies of Great Britain, by reason of the aforementioned judgment land epis-
of the Privy Council in the case of the Bishop of Natal, which c P a te.
denies that the Church is a part of the constitution in any colonial
settlement, and repudiates its claim to be recognised by the law of
any colony otherwise than as ' the members of a voluntary associa-
tion,' the five bishops of the Anglican Church in New Zealand
petitioned the Queen, in the year 1865, that they might be per-
mitted to surrender their letters patent (which had been issued by
the crown after the colony had received representative institutions),
and allowed to rely in future upon the powers inherent in their
office for perpetuating the succession of their order within the
colony, and securing the due exercise of their episcopal functions, in
conformity with a church constitution agreed upon in 1857, 'by
voluntary compact ' between the bishops, clergy, and laity of the
United Church of England and Ireland in New Zealand.

The bishops stated, in their petition, that their church constitu-
tion had been recognised by an act of the New Zealand legislature,
in 1858, which sanctioned the assembling of a general synod, and
made regulations in regard to the holding of church property. That
a general synod had since assembled triennially, and had framed
rules for enforcing discipline within their body, and had established
a tribunal to determine whether such rules had been violated or not,
and what should be the effect of their violation ; in conformity
with the judgment of the Privy Council in the case of Long v. the
bishop of Capetown, which declared that the members of the
Church of England in a colony ' may adopt rules for enforcing dis-
cipline within their body which will be binding on those who,
expressly or by implication, have assented to them.' m

k See Journal Leg. Assy. Can. 1850, doubts in regard to the representa-

pp. 259-266. Com. Pap. 1856, v. tion of the laity in the synods, by the

44, p. 129. .Ib. 1857, 2, v. 28, p. Act 22 Viet. c. 139.

97. The Canadian statute was after- ' Mac. Mag. v. 18, p. 456.

wards amended, in order to remove m Brodrick's Judgments, p. 310.

VOL. I. L L



614 THE ROYAL PREROGATIVE

In order to prevent any failure of justice, as the result of this

new relation between the Church authorities and the parties who

may be subject to them, the bishops submit that the course of pro-

The cedure, in all questions that may arise between any of the members

Church in o j ^e Anglican Church in New Zealand, whether bishops, clergy,

land. or l a ity wn o have bound themselves by voluntary compact, under

the authority of the general synod, should be that which was pointed

out by the judgment of Lord Lyndhurst, in 1835, in the case of Dr.

Warren," viz. :

1. That the question be tried and decided according to the rules
of the synod, as agreed to by the bishops, clergy, and laity.

2. That on petition of either party the Supreme Court of the
colony would have authority to inquire into ' the regularity of the
proceedings, and the authority of the tribunal, and, on those grounds
merely,' to affirm or annul the decision.

3. That from any such decision of the Supreme Court of the
colony an appeal would lie to the Privy Council, upon the same
grounds.

The bishops are of opinion that such a mode of procedure would
satisfy all the ends of justice, and secure the liberty of the subject,
without its being necessary to appeal direct to the crown, in any
litigated case, as had been done with such unsatisfactory results in
the controversy between the bishop of Capetown and the bishop of
Natal.

In order, 'therefore, that all doubts as to their status, both eccle-
siastical and temporal, may be removed, the bishops pray :

1. That the surrender of their letters patent, now declared to be
null and void, may be accepted.

2. That the royal mandate under which they were consecrated
may be declared to have been merely permissive, and to have no
further effect or legal consequence.

3. That the inherent right of the bishops in New Zealand to fill
up vacancies in their own order by the consecration of persons
elected in conformity with the regulations of the general synod,
without letters patent, and without royal mandate, may be recog-
nised : following therein the precedent already established in the
case of the missionary-bishop for the islands of the Western Pacific,
who was consecrated by the bishops of New Zealand, without
letters patent or royal mandate, after communication with the
secretary of state for the colonies, and the attorney -general of
New Zealand.

On April 24, 1866, the colonial secretary (Mr. Cardwell) in-
formed the House of Commons, in reply to a question from a mem-



" See Brod. and Frem's. Jud-rments of the Coiu c . P. C. ,308 n, 311.



IN MATTERS ECCLESIASTICAL. 515

fcer, that the foregoing memorial of the New Zealand bishops had
been accompanied by a minute from the New Zealand ministry, ob-



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