The Petition of Complaint of the Right Rev. John William Colenso, D.D., Lord Bishop of Natal
| Jurisdiction | UK Non-devolved |
| Judgment Date | 18 December 1864 |
| Date | 18 December 1864 |
| Court | Privy Council |
English Reports Citation: 16 E.R. 43
Privy Council
Mews' Dig. tit. Colony, I. General Principles, 1. III. Appeals to Privy Council, 1; tit. Court, A.; tit. Crown, A.; tit. Ecclesiastical Law, IV. Colonial Church. S.C. 11 Jur. (N.S.), 353; 12 L.T. 188; 13 W.R. 549; see Natal (Bishop of) v. Gladstone, 1866, L.R. 3 Eq. 2; Ex parte Jenkins, 1868, L.R. 2 P.C. 267; 5 Moo. P.C. (N.S.) 351; Capetown (Bishop of) v. Natal (Bishop of), 1869, L.R. 3 P.C. 1; 6 Moo. P.C. (N.S.) 203; Merriman v. Williams, 1882, 7 A.C. 503; Read v. Lincoln (Bishop of), 1889, 14 P.D. 128.
[115] In the matter of the Petition of Complaint of the EIGHT KEV. JOHN WILLIAM COLENSO, D.D., LORD BISHOP OF NATAL* [Dec. 14, 15, 16, 18, 1864.] The Queen, in exercise of Her authority as Sovereign and head of the Established Church, created by Letters Patent a Metropolitan and two suffragan Bishops, with Episcopal jurisdiction and authority in the Colony of the Cape of Good Hope, which Colony had at the time a Legislative Council and House of Assembly. By the Letters Patent the Suffragan Bishops were declared subject and subordinate to the Metropolitan, in the same manner as a Bishop of any See within the Province of Canterbury was under the authority of the Archbishop thereof; the Colonial Metropolitan Bishop being subject to the general superintendence and revision of the Archbishop, with an ultimate appeal from any sentence pronounced by such Metropolitan to the Archbishop, or his successors, who should finally decide and determine the same. The Letters Patent were not made in pursuance of any Order in Council, or of a Statute of the Imperial Parliament, nor were they confirmed by any Act of the Legislature of the Cape of Good Hope, or of the Legislative Council of Natal. Under these Letters Patent the Suffragan Bishop of Natal was consecrated and took the oath of canonical obedience to his Metropolitan. In the year 1863, * Present:-The Lord Chancellor (Lord Westbury), Lord Cranworth, Lord Kings-down, the Master of the Rolls (Sir John Romilly), and the Right Hon. Dr. Lushington. 43 Ill MOORE N.S., 116 NATAL, LORD BISHOP OF (jN RE) [1864-65] certain charges of heresy and false doctrine having been preferred against the Bishop of Natal, before his Metropolitan, that Bishop sentenced the Bishop of Natal to be deposed from his office, and to be prohibited from the exercise of any divine office within any part of the Metropolitan Province of the Colony. Upon appeal to Her Majesty in Council, held :ò- First, that as there was an independent Legislative Assembly in the Colony, there was no power in the Crown, by virtue of its prerogative (without the provisions of a Statute of the Imperial Parliament) to establish a Metropolitan See or Province, or to create an Ecclesiastical Corporation whose status, rights, and authority, the Colony could be required to recognise [3 Moo. P.C. (N.S.) 148. Secondly, that, even if the Letters Patent did create between the Metropolitan and suffragan Bishop an ecclesiastical status, yet the Crown had no power to confer any jurisdiction or coercive legal authority upon the Metropolitan over a suffragan Bishop, or over any other person [3 Moo. P.C. (N.S.) 152]. Thirdly, that the oath of canonical obedience taken by the suffragan Bishop to his Metropolitan, did not confer any jurisdiction on the Metropolitan Bishop, by which a sentence of deprivation could be supported, nor was it legally competent to the parties to give or receive such a voluntary or consensual jurisdiction [3 Moo. P.C. (N.S.) 155]; and, Lastly, that the proposed ultimate appellate jurisdiction given to the Archbishop of Canterbury was equally invalid [3 Moo. P.C. (N.S.) 156]. It is the undoubted prerogative of the Crown to receive appeals in all Colonial causes, and by the 25th Hen. VIII. c. 19 (by which the mode of appeal to the Crown in Ecclesiastical causes is directed), it is by the 4th section enacted, that " for lack of justice at or in any of the Courts of the Archbishops of this realm, or in any of the King's dominions, it shall be lawful to the parties grieved to appeal to the King's Majesty in the King's Court of Chancery," an enactment which gave rise to the Commission of Delegates, which was abolished by the 2nd and 3rd Will. IV. c. 92, and for which the Judicial Committee of the Privy Council is by the 3rd and 4th Will. IV. c. 41, now substituted [3 Moo. P.C. (N.S.) 156]. In a dispute in one of Her Majesty's Colonies, between two independent Prelates, which previous to the 25th Hen. VIII. c. 29, would have been referred to the Pope, Her Majesty has appellate jurisdiction, and can exercise the same by referring the matter under the 3rd and 4th Will. IV. c. 41, for the advice of the Judicial Committee of the Privy Council [3 Moo. P.C. (N.S.) 156]. Semble.-Though the Crown may by its prerogative establish Courts to proceed according to Common Law, yet it cannot create any new Court to administer any other law [3 Moo. P.C. (N.S.) 152]. As no Ecclesiastical Tribunal or jurisdiction is required in a Colony or Settlement, where there is no Established Church, the Ecclesiastical Law of England cannot be treated as part of the law which settlers carry with them from the mother country [3 Moo. P.C. (N.S.) 152, 153]. This was a petition presented to Her Majesty in Council by the Bishop of Natal complaining of the illegality of the proceedings taken against him, and alleging the nullity of the sentence pronounced therein by the Lord Bishop of Cape Town as Metropolitan of [116] the Cape of Good Hope, for erroneous doctrines and teaching, and sentencing him to be deposed from his office of Bishop. The petition was specially referred by Her Majesty to the Judicial Committee. The petition and case, so far as it is necessary to state them for the purpose of showing the jurisdiction of the Metropolitan, upon the legality of which the proceedings wholly depended, and which [117] formed the single point decided by the Judicial Committee, disclosed the following facts and circumstances. By Letters Patent under the Great Seal of the United Kingdom, dated the 31st of May, 1844, the District of Natal was annexed to the Settlement of the Cape of Good Hope, and the Legislature of that Settlement was empowered to make laws for its government, and by further Letters Patent of the 30th of April, 1845, the District of Natal was erected for certain purposes into a distinct and separate Government, and administered by a Lieutenant-Governor. 44 NATAL, LORD BISHOP OF (iN Ss) [1864-65] III MOORE N.S., 118 By Letters Patent of the 2nd of March, 1847, so much of the Letters Patent of the 31st of May, 1844, and the 30th of April, 1845, as authorized the Legislature of the Cape of Good Hope to make laws for the District of Natal, was revoked; and it was ordained and declared that a Legislative Council, therein particularly described, should make such Laws and Ordinances as might be required for that District. By Letters Patent, dated September 25th, 1847, the Colony or Settlement of the Cape of Good Hope with its dependencies, and the Island of St. Helena, was erected and constituted to be a Bishop's See and Diocese, to be called the Bishopric of Cape Town; and by the same Letters Patent it was signified to the then Lord Archbishop of Canterbury, that Her Majesty had appointed Kobert Gray, D.D., to be the Bishop of the Diocese, and the Archbishop was commanded to consecrate him as such Bishop, which he accordingly did. These Letters Patent reserved to Dr. Gray a right of resignation of the office and dignity of Bishop of Cape Town, and Dr. Gray did [118] some time before the 23rd of November, 1853, duly resign the same. By Letters Patent, bearing date the 23rd of May, 1850, the Legislature of the Cape of Good Hope was empowered to pass Ordinances establishing a representative Government for the Colony of the Cape of Good Hope, and Ordinances were accordingly passed by the Legislature and confirmed by Her Majesty; and a Parliament was thereby constituted and established, consisting of the Lieutenant-Governor, a Legislative Council and House of Assembly. On the 23rd of November, 1853, Letters Patent were passed under the Great Seal for the purpose of erecting the District of Natal into a separate and distinct See and Diocese. The Letters Patent recited, that the See or Diocese of Cape Town had become, and then was vacant; Dr. Gray having by an instrument under his hand and seal resigned the same; that the See or Diocese was of inconvenient size; and that for the spiritual care and superintendence of the religious interests of the inhabitants thereof, and for the maintenance of the doctrine and discipline of the United Church of England and Ireland, it was expedient and desirable that the same should be divided into three Bishoprics or Sees, to be styled the Bishoprics of Cape Town, Graham's Town, and Natal, the Bishops of the Sees of Graham's Town and Natal, and their successors, to be subject and subordinate to the See of Cape Town and the Bishop thereof, and his successors, in the same manner as any Bishop of any See within the Province of Canterbury was under the authority of the Archi-episcopal See of that Province, and the Archbishop of the same. [119] In consideration of these premises Her Majesty, by the same Letters Patent, erected the district of Natal into a separate See and Diocese, named and appointed the Appellant to be ordained and consecrated Bishop of such See, and signified the same to the Lord Archbishop of Canterbury, and commanded him to ordain and consecrate the Appellant to be Bishop of the See or Diocese of Natal in manner accustomed: and the Appellant was accordingly ordained and consecrated on the 30th of November, 1853, and soon afterwards proceeded to Natal and entered into and occupied the See of Natal as Bishop thereof, having first...
To continue reading
Request your trial
-
R (Bancoult) v Foreign Secretary (No 2)
... ... Appellate Committee ... Lord Hoffmann ... Lord Bingham of Cornhill ... United States of America, no person has the right of abode in the Territory. (2) ... Sir William Holdsworth, A History of English Law, vol X, p ... See also In re Lord Bishop of Natal (1865) 3 Moore (NS) 114 ... In the ... a person would proceed by action or by petition; and, if he was right, a decree would be passed ... to correction, but none occurred) by Mr John Battle, Minister of State, Foreign and ... ...
- Victoria v Australian Building Construction Employees' and Builders Labourers' Federation
-
Minister of the Interior v Bechler and Others; Beier v Minister of the Interior and Others
...(supra, Vol. 6, para. 513). Local Statutes of the Union can regulate the Prerogative in this country; see In re Lord Bishop of Natal (16 E.R. 43 at pp. 44, 56); Statute of Westminster II. 1931 (22 Geo. V, C. 4), status of the Union Act 69 of 1934. The Commission was a statutory body bound b......
-
Blades et Al v Jaggard et Al
... ... Natural justice — Right to be heard — Building alterations to church Bishop of Barbados without prior consent of congregation ... the members of the congregation that the Lord Bishop of Barbados had received a petition from ... Edition, Volume 13, is re Lord Bishop of Natal (1864) 16 E.R. 43 This case must now be ... Patent tendered as an Exhibit, appointing William Henry Albert Hanschell Chancellor, contain these ... discuss the other matters of which the complaint has been made ... 48 ... John's Margate (Churchwardens) v. St. John's Margate ... ...
-
Trusts and statutes.
...of the Institutes of the Laws of England (W Clarke and Sons, 1817), cited in Re Colenso, Lord Bishop of Natal (1865) 3 Moo PC NS 114, 152; 16 ER 43, 57 (Westbury LC, Cranworth and Kingsdown LJJ, Romilly MR and Dr (18) New South Wales Act 1823, 4 Geo 4, c 96 ('New South Wales Act 1823'). (19......