SIR,--In the late argument on the case of Bishop Colenso, before the Judicial Committee of the Privy Council, a few sentences fell from the Court which were shortly and not very correctly reported in the newspapers; but which, short as they were, amounted to a judicial expression of opinion of the very highest importance. The question was, whether the Bishop of Cape Town had any jurisdiction over the Bishop of Natal. The Bishop of Cape Town claimed such a jurisdiction by contract, and I was arguing the question what were the terms of such a contract, supposing it to exist, and to regulate the relations between the parties. I maintained, on the part of Bishop Colenso, that the contract was to regulate the religious affairs of all persons in the South African colonies who chose to associate themselves to the society called the Church of England by so much of the law of England relating to ecclesiastical matters as might be suitable to their position. I further maintained that it resulted from various documents before the Court, that the Bishop of Cape Town had adopted and acted on a different view of the contract, and that he supposed it to be a contract to regulate the affairs in question, not by the law of England relating to ecclesiastical affairs, or by any part of it, but by the laws of the Church considered as an independent body. The view of the Bishop of Cape Town appeared to be, that the Church existed long before the English nation, that it had from the very first its own system of laws, that when introduced into England it carried that system of laws with it, that those laws formed the basis of its constitution, that the Acts of Parliament passed from time to time in England were merely local bye-laws, that on the transplantation of the Church into a foreign country they ceased to apply, and that in that case the law of the Church itself—the original body independent of and anterior to the State—revived, and must be supposed to have been adopted as a rule of conduct amongst themselves by the voluntary contract of those who chose to join the Church of England in the colonies. In short, the two views contrasted with each other were as follows:—‘A contract to live in a foreign country according to the law of the Church of England is a contract to live according to that part of the law of England which relates to ecclesiastical affairs. ‘A contract to live in a foreign country according to the law of the Church of England is a contract to live according to the common law of the Catholic Church.” The question which of these views was true obviously depended on the further questions, What is the Church of England in the eye of the law? What is the legal meaning of the words “Church of England? Are they the name of a certain part of the law of the land, or are they the name of a body which has laws of its own, and is independent of, and antecedent to, the law of the land, though locally subject to it?
After stating the question, I began to argue it, by supporting my own view of the case, and refuting the one which I ascribed to the Bishop of Cape Town. The Court, however, refused to hear me. They considered the point too plain for argument. They declared at once, and no attempt even was made by the counsel of the Bishop of Cape Town to change their opinion, that the Church of England is governed so completely by the law of the land, that a contract to live according to the law of the Church of England in a foreign country is a contract to live according to a certain part of the laws of England, and has no reference either to the doctrines or to the practices prevalent in the Christian Church in general. According to this decision it would follow, that if a certain doctrine respecting the character of the Bible had always been held by every branch of the Christian Church, and by all or nearly all the individual members of the Church of England, yet if it were not legally binding in England, neither would it be binding by contract in any colony. In other words, it amounted to a judicial decision, that the legal obligations of clergymen of the Church of England, wherever and however established, are measured exclusively by the law of England in the strict sense of the word Law; and were altogether unaffected by the general canon law of Europe, except in so far as that law has been imported into England and recognised here.
It is difficult to overrate the importance of this judicial expression of opinion; and it is certainly not diminished by the fact that the proposition affirmed appeared to the Court so obviously true that they refused even to permit it to be argued. It is, however, possible that it appears less obvious to the public than it did to the judges; and it is certain that there are few subjects on which greater misapprehension and confusion of thought exists than are to be found on the question, What is the law of the Church? I therefore think it may interest your readers to see the substance of the argument which I should have addressed to the Court if the point had been thought doubtful enough to admit of argument. I would observe that whether these arguments are sound or not, the truth of the conclusion which they were meant to establish has now been affirmed in the strongest manner by the highest tribunal in the country. I must further observe, that though the substance of the following argument would have been submitted to the Court, I have tried to popularize both the style and to some extent the matter, inasmuch as many things which it is necessary to explain to a general reader might and would have been assumed in addressing a court of law.
My argument then would have been to the following effect:—
The question at issue is whether the contract between the members of the Church of England in the Cape colony, in Natal, and St. Helena was, as I say, a contract to submit to so much of the law of England relating to ecclesiastical affairs as might be suitable to their position; or, as I understood the Bishop of Cape Town to say, a contract to submit to the laws of a body called the Catholic Church, which body, though subject in England to certain bye-laws imposed by Parliament, is governed by laws of its own even in England, and is governed elsewhere by those laws and no others. This is a question of fact, for I do not deny that the contract which I suppose to be alleged by the Bishop of Cape Town might have been made by persons disposed to make it. If a number of persons choosing to call themselves ‘The Church in South Africa' had chosen to sign their names to such a contract, and had agreed that all endowments connected with the body should be held upon those terms, they would, or at all events might, have been legally bound by it. In point of fact, however, nothing of the sort took place. What happened was, that the Bishops of Cape Town, Graham's Town, and Natal, were consecrated by the Archbishop of Canterbury according to the form in the Prayer Book, by the command of the Queen, as Bishops of the United Church of England and Ireland. They are colonial bishops within all the Acts of Parliament relating to colonial bishops. They are bishops of the Church of England, and as such can, under certain restrictions, perform all the functions of bishops in the Church of England, as much as the Bishops of London and Winchester. The clergy whom they ordain are clergymen of the Church of England, and are capable of holding preferments in England. The services performed in their churches are the Church of England services; and the question is, What contract between the different members of this body will the law infer from these facts? Is it the contract alleged by me, or the contract alleged by the Bishop of Cape Town? The consideration of this question consists of two parts—first, the statement and defence of my own view, and, secondly, the statement and refutation of the view of the Bishop of Cape Town.
My view is that the members of the Church of England in the Cape colony, by the fact of taking that name and by the other facts above referred to, contracted together to regulate their religious affairs by so much of the law of England relating to ecclesiastical matters as might be suitable to their position.
In the first place, this view of the matter is that which was taken by the Judicial Committee of the Privy Council in the case of Long v. Cape Town. The words of the judgment are as follows:—‘We adopt the language of Mr. Justice Watermeyer, that “for the purpose of the contract between the plaintiff and defendant we are to take them as having contracted that the law of the Church of England shall, though only so far as applicable here, govern both.”
This is an authority expressed in point; but the matter is so important that it may be interesting, even if it is not absolutely necessary, to carry the matter further and explain the grounds of the judgment of the Court. It would no doubt be admitted by the Bishop of Cape Town himself, that the law of the Church of England prevails in the Colonial Church of England, though he would differ from me as to the nature of that law, the authorities by which it is to be determined, and the power by which it is imposed. Hence the question is, What is the law of the Church of England? This matter has been repeatedly discussed by the most eminent of English lawyers, and their views have been repeatedly acted on by courts of law and recognized by Parliament both in our own days and at an earlier time. Lord Hale's account of the matter is perhaps as clear and strong an authority as can be cited. In his History of the Common Law (pp. 23-5) the following passage occurs. It forms part of an analysis of the law which Lord Hale divides into written and unwritten. The unwritten law is further divided into general and particular customs; the general customs forming the common law, the particular customs having the force of law in so far as they happen legally to prevail.
‘Now, secondly, as to those particular laws before mentioned, which are applicable to particular matters, subjects, or courts. These make up the second branch of the laws of England, which I include under the general terms of leges non scriptae. By “those particular laws,” I mean the laws ecclesiastical and the civil law so far forth as they are admitted in particular courts, &c. I have for the following reason ranged these laws among the unwritten laws of England, viz., because it is most plain that neither the canon law nor the civil law have any obligation as law within this kingdom upon any account that the popes or emperors made those laws, canons, rescripts, or determinations; or because Justinian compiled them in the corpus juris civilis, and by his edicts confirmed and published the same as authentical; or because this or that council or pope confirmed and published the same as authentical; or because this or that council or pope made those or these canons or decrees; or because Gratian, or Gregory, or Boniface, or Clement did, as much as in them lay, authenticate this or that body of canons or constitutions.
‘For the King of England does not recognize any foreign authority as superior or equal to him in this kingdom; neither do any laws of the Pope or Emperor, as they are such, bind here. But all the strength that either the papal or imperial laws have obtained in this kingdom is only because they have been received and admitted either by the consent of Parliament, and are so part of the statute laws of this kingdom, or else by immemorial usage and custom in some particular cases and courts, and not otherwise. And therefore, as far as such laws are received and allowed of here, so far they obtain and no further, and the authority or force they have here is not founded on or derived from themselves. For they bind no more with us than our laws bind in Rome and Italy, but their authority is founded merely on their being admitted and received by us, which alone gives them their authoritative essence and qualifies their obligation.’In a few words, Lord Hale says that no laws have any binding force in England unless they have been either expressly or tacitly sanctioned by the Crown and Parliament.
Lord Coke's authority is to much the same purpose. In his report of Cawdrey’s case (5 Rep. xxviii-ix), he says, “By the ancient laws of this realm this kingdom of England is an absolute empire and monarchy, consisting of one head, which is the King, and of a body politic, compact and compounded of many and almost infinite, several, and yet well-agreeing members; all which the law divideth into two several parts, that is, the clergy and the laity, both of them, next and immediately under God, subject and obedient to the head: also the kingly head of this politic body is instituted and furnished with plenary and entire power, prerogative, and jurisdiction to render justice and right to every part and member of this body of what estate, degree, or calling soever, in all causes ecclesiastical or temporal, otherwise he should not be a head of the whole body; and as in temporal causes the King, by the mouth of the judges in his courts of justice, doth judge and determine the same by the temporal laws of England; so in causes ecclesiastical and spiritual, as, namely, blasphemy, apostacy from Christianity, heresy, C&c., the same are to be determined and decided by ecclesiastical judges according to the King's ecclesiastical laws of this realm. For as the Romans fetching their laws from Athens, yet being approved and allowed by the estate there, called them notwithstanding jus civile Romanum, and as the Romans borrowing all or most of their laws from England, yet baptized them by the name of the laws or customs of Normandy; so albeit the Kings of England derived their ecclesiastical laws from others, yet so many as were proved, approved, and allowed here by and with a general consent, are aptly and rightly called the King's Ecclesiastical Laws of England, which whosoever shall deny, he denieth that the King hath full and plenary power to deliver justice in all causes to all his subjects, or to punish all crimes and offences within his kingdom.’
The report of Cawdrey’s case gives numerous instances from the earliest period of English history downwards, in which the King and Parliament of England had exercised the right of legislation in spiritual affairs, and that in spite of all the opposition which different popes could make. It is, however, almost waste of time, even for popular purposes, to insist upon the truth of the doctrine so clearly laid down by Hale and Coke. It is the burden of all the acts of supremacy, and is their very essence and meaning. For instance, the Act for the Restraint of Appeals, 24 Hen. VIII., c. 12, in its preamble sets forth that “by divers and sundry old authentic histories and chronicles it is manifestly declared and expressed that this realm of England is an empire, and so hath been accepted in the world, governed by one supreme head and king, having the dignity and royal estate of the Imperial Crown of the same, unto whom a Body Politick compact of all sorts and degrees of people divided in terms, and by names of spirituality and temporality been bounden and owen to bear next to God a natural and humble obedience.’ And it goes on to say that ‘Causes of the law Divine or of spiritual learning are declared interpreted and shown by that part of the said body politic, called the spiritualty, now being usually called the English Church.” It would be difficult to find a clearer or more explicit statement of the doctrine that the Church has no independent existence; that it is merely the nation regarded from a religious point of view and legislating for religious purposes. The Act of the Submission of the Clergy, 25 Henry VIII., c. 19, denies the claim of the clergy to any independent power of legislation whatever. It sets forth that ‘The King's humble and obedient subjects, the clergy of this realm of England, have not only knowledged according to the truth that the Convocation of the same clergy is, always hath been, and ought to be assembled only by the King's writ, but also submitting themselves to the King's majesty, have promised in verbo sacerdotii that they will never from henceforth presume to attempt, allege, claim, or put in ure, or enact, promulge, or execute any new canons, constitutions, ordinance provincial or others, or by whatsoever name they shall be called in the Convocation, unless the King's most royal assent and licence may to them be had to make, promulge, and execute the same.’ This act gave power to Henry VIII. to set out the ecclesiastical law of England, a power which led to the abortive attempt to do so embodied in the Reformatio Legum. The Act of 1 Eliz., c. 1, having abolished all foreign authority, enacted ‘That such jurisdictions, privileges, superiorities, and pre-eminencies, spiritual and ecclesiastical, as by any spiritual or ecclesiastical power or authority had theretofore been, or might lawfully be exercised and used for the visitation of the ecclesiastical state and persons, and for reformation, order and correction of the same, and of all manner of heresies, schisms, abuses, offences, contempts, and enormities, should for ever be united and annexed to the Imperial Crown of this realm.
These statutes are the very title deeds of the Church of England as now established; and the principle on which they rest is exactly that which is stated by Coke and Hale. If any further and more modern illustration of them is wanted, reference may be made to a celebrated case lately decided, [R. v. Millis, 10 Cl. and Fin. 534.] which shows how jealously English courts of justice have always confined the character of law to rules sanctioned by the supreme legislature. The case referred to was one in which the question arose, whether at common law the benediction of a priest was necessary to the validity of an English marriage. It was admitted that, by the general canon law of Europe, it was not; but all the judges of England declared that the question turned not on the general canon law of Europe, but on the King's ecclesiastical law; and the House of Lords held that by that law the presence of a priest was necessary, though by the general canon law it was not.
This view as to the nature of the laws of the Church of England is in exact conformity with the whole course of the administration of justice in ecclesiastical matters in England. If a clergyman is charged with any offence whatever, whether moral or professional, or if he wishes to establish any right, he has to go to the ecclesiastical courts, and their proceedings are regulated in every particular either by immemorial custom recognized and ascertained by practice, or by Act of Parliament, or by the canons received in this country before the time of Henry VIII. It has been decided over and over again that everything which cannot be shown to be forbidden by one or the other of these rules is permitted, and is legal. In short, it is so obvious that an apology is perhaps necessary even to general readers for dwelling on the subject that what Coke calls the King's Ecclesiastical Law forms a body of laws,— not, certainly, as complete or well defined as might be wished, but still sufficiently ascertainable for practical purposes,—that this and no other law is the law of the Church of England; that it is law because the Sovereign and Parliament of England have invested it with that character, and that it would cease to be law if they chose to alter it.
If this is applied to the principle laid down by the court in Mr. Long's case, the result will be that the members of the Church of England in the colonies must be supposed to adopt amongst themselves, by contract, the rules which in England have the force of law, and the difference between the Church of England in England and the Church of England in the colonies will consist only in the fact that, whereas in England every one, whatever may be his religious opinions, and whether he likes it or not, is subject to the law ecclesiastical as well as to other parts of the law; no one is subject to it in the colonies unless he chooses to put himself under its operation by his own voluntary choice, and his liability extends only to such consequences as may be annexed by contract to a breach of them. [It may possibly be necessary to remind general readers, that in the eye of the law
every British subject in England and Ireland is a member of the Church of England. There are many cases in which the rights of Jews, Roman Catholics, and Dissenters, have been decided by the Ecclesiastical Courts. For instance, in the great case of Lindo v. Belisari, Lord Stowell decided on the validity of Jewish marriages. In Escot v. Mastyn, the question was as to the validity of baptism by a Dissenter. In Woolfrey v. Breekes, the question was whether a Roman Catholic had a right to put up a monument in a parish church, containing an invitation to pray for the soul of a dead person. The legal position of a Dissenter seems to be that of a member of the Church of England indulged by the law in a separate form of worship; if indeed it is not more correct to say that the Church of England does not now require uniformity of worship in its members. One form only is endowed by the public, but every form is recognised and protected. So true is this that when the model deed for Church of England schools was settled, the phrase ‘member of the Church of England was objected to on the ground that it would include Dissenters, and ‘communicant' was substituted.] The effect of this would be to give a substantial uniformity both of discipline and doctrine to the Church of England in every part of the British dominions, and it can hardly be doubted that it would be in perfect conformity with the intention of the parties themselves; for what other definite or assignable system of rules can they be supposed to have intended to adopt? The objections, however, to deviating from this straightforward, intelligible view of the case will appear in the clearest and strongest way by referring to the view of the matter set out by the Bishop of Cape Town, which I will now proceed to consider and refute.
The view taken by the Bishop of Cape Town of the laws of the Church of England is indicated in the documents which were before the court in the late proceedings; but it is stated even more plainly and fully in a charge which he delivered to the Church in Natal, during a visitation which he made there with a view of carrying into effect his own judgment. Before the judgment was delivered, he and the two bishops who sat with him as assessors, sat as a synod, and in that character passed a series of resolutions with respect to the body to which they belong, and which they choose to describe as the Church in South Africa in Union and full Communion with the United Church of England and Ireland! The following resolutions, amongst others, were passed by this body:—
‘1. This Synod affirms that the Church of this province receives and maintains the doctrines and sacraments, and the discipline of Christ, as the Lord hath commanded and as the United Church of England and Ireland hath received the same; and that it receives the Book of Common Prayer and administration of the sacraments, and other rites and ceremonies of the Church according to the use of the United Church of England and Ireland; and also the authorised version of the Holy Scriptures, as of the same authority in this Church as it is in the Church of England. And, further, it disclaims the right of a single province of the Church to alter the standards of faith and doctrine now in use in the Church—the three Creeds, the Thirty-nine Articles, the Church Catechism, and other formularies of the Church; and acknowledges that the canons and constitutions of the Church, in so far as they are of force in England, and as the existing circumstances of the Church in this province permit, have authority there also until they shall have been altered by synods of this province.”
‘2. This Synod affirms that inasmuch as this Church is not as the Church in England, “by law established,” and inasmuch as the laws of England have, by treaty, no force in this colony, those laws which have been enacted by statute for the English Church as an Establishment, do not apply to, and are not binding upon, the Church in South Africa; and that this Church, therefore, receives the English ecclesiastical statute law only in so far as it may serve to remedy and supply manifest defects or omissions of the canon law, or of laws framed and enacted by the synods of this Church.’In a charge delivered to the province of Natal, the Bishop of Cape Town explained his own view of his position even more pointedly. After scribing the powers given to metropolitans by the early canon law, he says, that metropolitans came in course of time to be wanted in the colonies, and that he was appointed to that office in South Africa by the Church. ‘The subject, he says, “was fully discussed at a meeting of the English bishops, and such of the colonial bishops as were within reach, summoned by the late Archbishop of Canterbury in 1853. At that meeting, at which I was present, it was resolved that metropolitans should be at once appointed over the Churches of Canada, New Zealand, and South Africa, and the concurrence and joint action of the Crown in this matter was sought and obtained. The Crown gave what force of law it was in its power to do to the decision of the Church. Further on he says, “I have claimed the same right, but no greater, to administer the laws of this Church, whether in my capacity of metropolitan or in that of bishop, than would be conceded to a Roman Catholic bishop, or a Wesleyan superintendent, in the administration of the laws of their respective communities, or than was conceded to the Church of the earlier ages by heathen emperors, or is conceded to the Church in America, in these days, by the civil power.’
A little further on he says, ‘Our colonists do not carry with them the statute law of England by which the Church is established there. They carry with them their Bible and their Prayer Book; and with them the laws of their Church embodied in the canons so far as they are applicable to their new circumstances. It is the canons which define the relations of the priest and deacon to the bishop, of the bishop to the metropolitan, of the metropolitan to the primate, and at present as it would seem, the de facto patriarch of the Churches of the English communion.’
In a note to p. 13, he says that if the Crown should assume jurisdiction ‘it would thereby declare that the Church in this colony, which is a branch of the oldest corporation in the world, shall not be governed by its own laws—laws which it inherits from the Church from which it derives its mission.’
These passages, at all events, have no room for mistake as to the view which the Bishop takes of his own position. It is obvious that he holds and acts upon the view already ascribed to him. In his view the Church and the State even in England are distinct bodies. The State has imposed upon the Church certain local restrictions, but the bulk of the laws of the Church are imposed by the Church itself and not by the State. When the Church, or any part of it, gets beyond the jurisdiction of the State, its original character revives, and those who join it must be supposed by their conduct to recognize that character, and make it the foundation of their contract.
In order to show fully how false this view is, it will be necessary to begin by pointing out the fallacy which lies at the root of it. This fallacy consists in a total misapprehension of the nature of law. All his phraseology on the subject implies that the Bishop of Cape Town confounds together two distinct things— the law of God and the law of man, and that he assumes that because all men are bound in conscience to obey the laws of God, therefore, all the members of the Church of England in South Africa have contracted to invest a particular version of the law of God with a human sanction. This fallacy, when once pointed out, is so obvious that it would be wonderful that any one should be deceived by it, if we did not know by experience that fallacies of the most transparent kind are often the most deceptive. Thrown into a few words, the case of the Bishop of Cape Town against the Bishop of Natal is as follows:– I have a right to deprive you because the law of God authorizes me to do so, and you contracted to obey the law of God, as interpreted by me, with an appeal to the Archbishop of Canterbury as ‘de facto patriarch,' for such is the law of the Church of England.
Now the essence of a law is coercive power. It is the sanction which makes the law, and distinguishes it from any other mere general proposition. Hence, when we say that God has given laws to the Church, we mean that God will punish members of the Church who transgress certain rules of conduct. If the Bishop of Cape Town is right in supposing that such laws have been given to the Church, and that they not only warrant the course which he has taken, but bind him in conscience to take it—then, no doubt he has a right to act as he did, and the Bishop of Natal is under a duty to submit; but of what nature are these rights and duties? They are purely spiritual. The law which confers the right, and imposes the duty, has no other than a supernatural sanction. If the Bishop of Cape Town is right, then the Bishop of Natal is guilty of a sin in disobeying his commands, and will, or may be, punished for it hereafter; but it does not follow that because he breaks a Divine law (supposing him to do so) he breaks a human law also. Dei injuria Deo cura. A divine law imposes of itself nothing more than a conscientious obligation, and if in the case in question the Bishop of Natal feels no such obligation, and refuses to acknowledge it, the Bishop of Cape Town has no remedy.
The only way in which the Bishop of Cape Town can get over this is by alleging that the Bishop of Natal by contract invested these alleged divine laws with a human sanction; and the next question between them is whether in point of fact he did so or not. There are three objections to this supposition, each of which will be found to be conclusive.
First, it is impossible to say what the divine laws in question are, or where they are to be found.
Secondly, it is so improbable as to be morally impossible that any one would make a contract, the practical result of which would be to invest the person with whom he contracted with absolute power over him.
Thirdly and lastly, the contract is admitted on both sides to have been a contract to adopt the laws of the Church of England; and no divine laws as such have, or ever had, the force of law, in the strict sense of the word, in the Church of England.
First of all it is impossible to say what the divine laws in question are, or where they are to be found. The question between the Bishop of Cape Town and the Bishop of Natal, in so far as it is a matter of jurisdiction, turns upon the rights of metropolitans over suffragan bishops. According to the Bishop of Cape Town, he, as metropolitan, has a right to deprive his suffragan for heresy, subject to an appeal to the Archbishop of Canterbury, as ‘de facto patriarch of the Churches in the English Communion.’ The rights of the Archbishop of Canterbury over the Bishop, say of London, are tangible, and though the subject is somewhat obscure, there is a possibility of ascertaining in a more or less satisfactory way what they are; but by what conceivable process is any one to make out what are the respective rights and duties of an abstract metropolitan, an abstract suffragan, and a ‘de facto patriarch?’ — surely the cloudiest and most questionable creature that ever claimed to exist de facto. A number of bishops, English and colonial, met at Lambeth. It does not appear that they even claimed any legal or official character, or that they executed any formal instruction. They simply agreed, as any other gentlemen might, to this opinion: that it would be a good thing to have a metropolitan of South Africa, and that Dr. Gray ought to hold that office. This the Bishop of Cape Town regards as an appointment ‘by the Church. The incident of the Queen's patent, usually supposed to have had something to do with the matter, was, according to him, only surplusage. The ‘concurrence and joint action of the Crown’ was indeed ‘sought and obtained; but it was only as a sort of luxury. ‘The Crown gave what force of law it was in its power to do to the decision of the Church,' formed by Archbishop Sumner and his colleagues at a private meeting in his own house. As soon as the bishops had talked the matter over, and come to their resolution, the Bishop of Cape Town was thereby at once invested with all the authority which ‘the canons’ (they are spoken of with delightful generality), either conferred upon metropolitans or recognized in them fifteen hundred years ago. It is hardly possible to invest a claim so grotesque with the seriousness which the subject requires. What the early metropolitans were, what were their powers, and what their relations to the suffragan bishops, is a matter of curious antiquarian research. Bishop Gray himself says “at what time the office was first instituted in the Church of Christ has been a matter of some doubt. All that he can assert is, that it was established before the Council of Nice, in 325; inasmuch as one of the canons of that council mentions metropolitans, though without in any way defining their power, and he quotes authorities which will be found upon examination to resolve themselves into a reference to the canons of certain early councils. The points which it was equally essential and impossible for him to prove, he does not even touch, or apparently apprehend. They are, first, that there ever was any defined system of government in the Church precise and explicit enough to be capable of being embodied in a contract by reference in the present day; secondly, that the Bishop of Natal did in fact contract to submit himself to it; and, thirdly, that it meets the particular case which has arisen.
The third point may be disposed of in a single sentence. In order to solve it this question must be answered,—What by the canon law of the early Church (whatever those expressions may mean) was the legal effect of an informal conversation between several bishops in the dining-room of Lambeth palace, the general result of which was a request to the Secretary of State for the Colonies to advise the Queen to make Bishop Gray metropolitan of South Africa? Since Sir Thomas More astonished the doctor of the French schools, who claimed universal knowledge, by asking him whether beasts of the plough taken in withernam could be replevied, so grotesque a legal problem has never perhaps been invented. Indeed, to make the case parallel, Sir Thomas More should have asked his omniscient friend to answer the question by the law of nature and nations.
Apart from this, was there ever any such system of law as the Bishop of Cape Town assumes to exist? It is an elementary truth that nothing is more obscure than the question,—What form of government was adopted in the early Church? The following are Dr. Milman's observations [History of Christianity, vol. ii. pp. 63-4.] on the subject:—“The primitive constitution of these churches is a subject which it is impossible to decline, though few points in Christian history rest on more dubious and imperfect, in general on inferential evidence, yet few have been contested with greater pertinacity. He then goes on to offer his own conjectures (for they are avowedly little more) on the subject, adding in a note that he is dissatisfied with ‘a theory adopted by Mosheim, by Gibbon, by Neander, and most of the learned foreign writers. Elsewhere [Ibid, vol. iii. p.353.] he says, “It is not alone from the scantiness of authentic documents concerning the earliest Christian history, but from the inevitable nature of things that the development of the hierarchical power was gradual and untraceable.”
A note to Mosheim’s history gives an account of four principal theories which have obtained amongst those who suppose that “Christ himself, or the apostles by his direction and authority, appointed a certain fixed form of Church government. They are the Ultramontane or Papal theory, a theory investing metropolitans with a divine right, a theory investing them with a human right, and the Presbyterian theory. [Mosheim, cent. i. part 4, ch. ii. note p. 32 of Murdoch's edition.] On the subject of discipline in general the following observation is made by Du Pin, in his summary of the writers of the first three centuries: ‘Voilà les principaux points de la discipline de l’ancienne église, que j'ai ramassez avec le plus debrièveté et d'exactitude qu'il m'a esté possible; mais il ne faut point conclure de ce que je viens de dire, que toutes ces choses ont été pratiquées dans toutes les églises, et dans tous lestemps de cestrois premierssiècles. Il y en a qui n'ont commencé à ètre en usage que dans le troisième, d'autres qui n'ont été observés que dans quelques églises. Enfin il faut avouer que la discipline de l'église a esté si differente et changeante qu'il est presqu'impossible d'en dire rien d’assuré.” [Du Pin, Bibliothèque, i. 226.]
From these authorities, which might be indefinitely multiplied, it is obvious that even if it were admitted that the practice of the early Church was any rule at all for the present day, it is altogether uncertain what the practice of the early Church was at any particular time; whilst, on the other hand, it is perfectly certain that it varied greatly from century to century, and that it is hopelessly impossible to attempt to fix upon the practice of any one period or district as the standard to which everything is to be referred, and which is to be assumed to apply in the absence of any express agreement to the contrary. To attempt to discover what in the abstract are the rights of metropolitans and patriarchs, as such, is a mere dream. It is like looking over the laws of the different European nations in order to discover what is the abstract and natural state of the law relating to the tenure of land. It is as impertinent—in the etymological sense of the word—to talk to English courts of law about the councils of Nice and Carthage and Constantinople, as to quote to them the decisions of the courts of Russia or Hungary. Does any human creature suppose that when the Bishop of Natal accepted his diocese and took his oath of canonical obedience he, or any one else, ever gave a thought to the regulations introduced into Church government in the fourth century?
It is, however, superfluous to insist upon the impossibility of saying what was the early law of the Church, and what particular age of the Church is to be chosen as the standard, for two conclusive reasons. First, because the Church of England has never recognized any form of Church government as the true and normal form, but on the contrary has studiously left the whole question open, and has in many instances recognized Churches in which Episcopacy does not prevail as branches of the Christian Church. Secondly, because the Bishop of Cape Town himself, in all that he has said upon the subject, has repeatedly recognized as branches of the Christian Church bodies which have forms of Church government different from each other, and different from that which in his own case he tries to invest with a sort of abstract supremacy.
First, then, as to the Church of England. Of all the topics discussed at the Reformation none was debated with such furious zeal as the question of Church government. It was the question of the day; and if any illustration of a fact so notorious should be required, it will be sufficient to refer to Hooker's famous controversy with Cartwright. The gist of the Ecclesiastical Polity is, that the English form of Church government was not wrong. It is hardly too much to say that the great object of the book is to show that the form of Church government is a matter to be settled from time to time by public authority on principles of general expediency, and that this discretionary power had been wisely exercised by the proper public authority in England, namely, the King and the Parliament. This is maintained as against the Presbyterians on the one hand, who contended that the Episcopal form of Church government was forbidden by the divine law, and as against the claims made by the Papists, on the other hand, on behalf of the Pope. Nothing indeed can be clearer than that this was the view on which the constitution of the Church of England was settled at the Reformation, and which has been assumed and acted on in all subsequent legislation. The Thirty-nine Articles are most cautiously worded on the subject of Episcopacy. They do not contain a single expression which can by any ingenuity be twisted into an assertion that the Episcopal form of government is essential to invest a religious body with the character of a Christian Church. On the other hand, they give a definition of a Church which is altogether independent of any form of Church government, and which would include, as beyond all doubt it was meant to include, all the foreign Lutheran and Calvinist Churches. The article defines a Church as a congregation of faithful men, in which the word of God is preached and the sacraments are administered, but nothing is said in the definition as to any form of Church government. In the article ‘Of Ministering in the Congregation, it is said that no one ought to minister in the congregation unless he is truly called, and that those persons ought to be considered as truly called who are called by public authority—not those who are Episcopally ordained.
So true is it that the Church of England has never considered the Episcopal form of government as the only true one, that certain provisions of the last Act of Uniformity (13 & 14 Ch. II., c. 4, ss. 13, 14) are the only reason why persons not Episcopally ordained cannot hold preferment in England. Before that time they could and did; and the 13 Eliz., c. 12, provided means by which they might qualify themselves to officiate in the Church of England. It enacted that “every person under the degree of a bishop, who doth or shall pretend to be a priest or minister of God's holy word and sacraments, (this last expression was the well-known and technical expression for foreign Protestant ministers), by reason of any other form of institution, consecration, or ordering than the form set forth by Parliament, and shall in the presence of it subscribe the Thirty-nine Articles,’ &c.
These facts completely rebut the notion that, according to the principles of the Church of England, there is any special charm or sanctity in the arrangements made for Church government in any particular age or country; nor is it possible to give any solid reason why greater importance should be attached to the canons relating to Church government in the third and fourth centuries, than to the laws—whatever they may be—which regulate the Church government of Prussia, or Sweden, or the Greek, or the Armenian Church. This is a conclusive objection to the view of the matter taken by the Bishop of Cape Town.
In the next place, however, the view in question is inconsistent with language employed by the Bishop of Cape Town himself. He speaks repeatedly of the Episcopal Church in the United States as a branch of the true Church, and appeals to its relations with the civil power as entirely satisfactory. It so happens that it is clear to demonstration that in the Episcopal Church of the United States the decrees of the early councils have no legal force whatever. The Episcopal Church in the United States is a purely voluntary association, and its internal affairs are regulated not by any ancient councils, but by the terms of an express agreement set out with the greatest accuracy and minuteness in a Written instrument. The history of this body and its laws is interesting on many accounts, and may here be shortly stated. In October, 1784, there was held at New York a meeting of deputies from the various Episcopal congregations in the United States, but the greater part of those deputies were not vested with powers for binding their constituents, and therefore although they called themselves a convention in the lax sense in which the word had been before used, yet they were not an organized body. They did not consider themselves as such, and their only act was the making of a recommendation to the Churches in the several States to unite under a few articles to be considered as fundamental.’ In consequence of this a further meeting was held, the members of which had power to bind their constituents, and by this meeting a regular constitution for the Church was provided. The constitution is very elaborate and explicit. It provides a general legislature composed of two houses—a house of bishops and a lower house. It further provides for the election of bishops and for their trial in case of necessity; and all this is decided and arranged without the smallest reference to the Council of Nice or any other council whatever. The bishops are all of equal rank, and there is no such thing as a metropolitan amongst them. The provisions with respect to the trial of bishops are remarkable, being "' peculiar and original. A bishop cannot be put on his trial except upon a presentment by five male communicants, of whom two must be priests. If the charge is false doctrine the # must be by a bishop. he trial is by seven bishops, of whom two-thirds must consent to a conviction.
The Scotch Episcopal Church in the same way has a constitution of its own formed by private arrangement, and the Bishop of Cape Town in the canons quoted above claims legislative power for the synod of his own province. These facts surely prove, beyond all possibility of doubt, the following conclusions. They show in the first place by the example of bodies to which the Bishop of Cape Town himself appeals, and even by his own example, that no one form of Church government can claim any supernatural character, and that the form of Church government which existed in Africa or Syria in the fourth century, is not entitled to any greater respect than that which exists at the present day in the United States or Scotland. Hence if people contract to live according to the laws of the Church of England, the meaning of their contract must be that they contract to live according to the laws which do, as a fact, prevail at this time in the body known by that name, and not by some other laws which, according to the views of the Bishop of Cape Town, ought to prevail in it. Suppose the contract was to live according to the laws of the Episcopal Church of America, could there be any doubt that that would mean a contract to live according to the constitution framed by the meeting already described and the canons afterwards passed by its authority? and if the bishops were to assemble and appoint metropolitans by their own authority and without to the provisions of that constitution and those canons, can any one suppose that the appointment would have any force whatever, even if it could be shown that a number of African or Syrian bishops had acted in precisely the same way fifteen hundred years before? Now the Acts of Parliament, the judicial decisions, and the traditional maxims, which collectively make up the law of the Church of England, are to that Church what the constitution and the canons made by the convention are to the Episcopal Church in America, and the Bishop of Cape Town and his synod have as much and as little right to alter the one as the American bishops would have to alter the other in any other way than that which the constitution of their Church provides.
Besides this, however, the examples of America and Scotland prove something more. They show what is the true nature of a voluntary religious society and of the laws by which its affairs are regulated. Such a society derives its legislative powers wholly and exclusively from the consent of the members. The authority of the South American bishops is precisely measured by the will of their congregations. They are in the position of the committee of a club, and their power could be taken away by the authority which gave it. If the legislative body altered their constitution and determined to do without bishops at all, every court of law in the States would recognize their perfect right to do so. It is obvious from this that there is a sort of absurdity and practical contradiction in the position of a man who, in the very same breath, claims a divine right and the power of a head of a voluntary society. The two things are entirely distinct. In so far as the Bishop of Cape Town has authority by divine right, he needs no help from the civil power. The apostles did not bring an action against Ananias and Sapphira for the part of the price which they kept back, nor was Elymas given in charge to the police as a common cheat. On the other hand, if the Bishop of Cape Town is the head of a voluntary society he can as such have no divine rights at all. He appeals merely to a contract, and he must show what it is and how it has been broken. Anyone who will take the trouble to look at what he has written on the question will see that he constantly hovers between the two characters, that he goes to Something which he chooses to view as the general law of the Church in order to ascertain the extent of his rights, and that he expects the rights so ascertained to be enforced by the Queen's Courts in Natal and England.
This consideration introduces the second of the objections above mentioned, which is, that it is so improbable as to be morally impossible that any one should have made such a contract with the Bishop of Cape Town as he seeks to set up.
There is a supposition upon which the Bishop of Cape Town's claims would be perfectly clear and consistent. Suppose that the members of the Church of England in the South African colonies had followed the example of the Episcopal Church in America, and had drawn up in express words a contract to some such effect as this: 'We, the undersigned, agree to constitute a religious body, to be called the Church in South Africa. The affairs of this body are to be regulated by the common law of the Christian Church; and, inasmuch as questions may arise respecting the provisions of that law, we agree that when they arise, the law shall be judicially declared by Robert Gray, D.D., Bishop of Cape Town, to whom we hereby give all such authority over our religious affairs as he shall declare to have belonged by right to the metropolitan bishops of the early Church.' Such a contract would be intelligible no doubt, and if it were made it might possibly warrant the proceedings actually taken by the Bishop of Cape Town, and the view entertained by him of his own position, but no contract short of this will do so. His judgment abounds in passages which show that he considers that the common law of the Church, as it has been called in England, is adopted by contract in South Africa; that it is his right to declare judicially what that law is, and that he regards the right to appeal from his decision, even to the Archbishop of Canterbury, as a matter of grace and favour, dependent upon his own consent. It is almost too obvious for argument that the practical effect of such a contract would be to make him absolute master of the whole Church —a sort of local Pope. A man must be far inferior to the Bishop of Cape Town, both in energy and in miscellaneous reading, who, having to declare the ‘common law of the Church, and having also to define the extent of his own powers, found any sort of difficulty in making himself absolute over the body which had invested him with such a jurisdiction. It is absurd to suppose that it was ever any one's intention to put the Bishop of Cape Town in such a position as this. To pass over other objections, it would assuredly produce two results, either of which is a reductio ad absurdum. In the first place, there are as many as five or six metropolitans in different parts of our colonial empire. Each would be in the same position, and we should be fortunate beyond all expectation if in the course of a few years we did not see the Church of Australia, the Church of South Africa, the Church of India, and the Church of Canada, all differing from, and more or less conflicting with each other, and with the Church of England. In the next place, whatever the clergy might think of such a scheme of Church government, there is little doubt what the laity would think of it. The metropolitans would soon be left to preach to each other; for what with right-hand fallings off and left-hand defections, the churches before long would approach that happy state which, according to Davie Deans, was the condition of the Church of Scotland, when ‘Billy Dods of Farthing's Acre, and another who shall be nameless, were, in Davie's opinion, the true undefiled remnant of that famous body.
The third objection to the Bishop of Cape Town's theory is, that a Church, as instituted by him, would not be the Church of England, whatever else it was, inasmuch as no divine laws have as such the force of law in the Church of England.
I have already shown what is the theory of the Church of England which is required by the Bishop of Cape Town's proceedings. He views it as an independent body, subjected by the temporal power to certain local bye-laws, which are confined in their operation to England, but which are not the laws of the Church so much as laws imposed on that Church from without and by a foreign power. In consistency with this view, the synod held by the Bishop of Cape Town and his two assessors repudiates the statute law of the Church of England, and also the decisions of its supreme Court of Appeal, and acknowledges the obligations of the canons only. It is obvious, indeed, that they consider the convocations and the other clerical assemblies which used to be held before the Reformation as the true legislature of the Church of England, and the statutes enacted by Parliament as mere accessories—not altogether unlike usurpations — submitted to, but not forming an essential part of the system.
Popular as this theory is with a certain part of the clergy, it is hardly possible to imagine a theory more directly contradictory to the law of the land, and to the law of the Church in the only legal sense of that word.
All the great leading facts in the history of the Church of England prove that the definition of the Church given in the preamble to the 24 Hen. VIII., c. 12, is not only true in point of law, but also in point of history and fact. If, as is certainly the case, coercive power is the distinctive peculiarity of law, there has never at any time been any coercion in the Church of England, except by the law of the land and the Government for the time being—the King and the Parliament of England have at all times claimed and exercised the right of legislation. That this was so before the Reformation there can be no kind of doubt. To begin at the very beginning, there can be no question, that the position of the Church was greatly altered in this country at the time of the Norman Conquest, and that the power of the bishops and the jurisdiction of their courts was then much increased. In former times there was hardly any distinction between Church and State. The bishop and the earl sat together in the local courts, and administered the same law; and, on the other hand, the Saxon kings constantly legislated on religious affairs. [E.g., Laws of King Ethelred, made by the Witan; Ancient Laws and Institutions of England, pp. 119-152; Laws of Cannte, ib. 153, seq.; Laws of Edward the Confessor, ib. 190, seq. All these codes refer to matters spiritual.] After the Conquest, the bishops' courts and the common law were introduced not by any power of their own, but by the charter of William the Conqueror. The charter itself tells the history of this resolution, and shows, if so self-evident a proposition requires proof, that the Church owes its legal position to the law; and, in so far as it has laws or legal rights at all, derives them exclusively from that which is the one supreme authority in this realm—the sovereign legislature. The words of the charter are these:—‘Scitis vos omnes et caeteri mei fideles qui in Anglià manent, quod episcopales leges quae non bene nec secundum sanctorum canonum praecepta usque ad mea tempora in regno Anglorum fuerunt communi consilio et concilio Archiepis coporum et episcoporum et abbatum et omnium principum regni mei emendandas judicavi Propterea mando et regia auctoritate praecipio ut nullus episcopus vel archidiaconus de legibus episcopalibus amplius in hundret placita teneant, nec causam quae ad regimen animarum pertinet ad judicium saecularium hominum adducant, sed quicumque secundum episcopales leges de quâcumque causá vel culpa interpellatus fuerit ad locum quem ad hoc episcopus elegerit vel nominaverit veniat ibique de causa vel culpå sua respondeat et non secundum hundret, sed secundum canones et episcopalès leges rectum Deo et episcopo suo faciat. Sivero aliquis per superbiam elatus adjudicium episcopale venire contempserit vel noluerit vocetur semel, et secundo et tertio, quod sinec sic ad emendacionem venerit excommunicetur, et si opus fuerit ad hoc vindicandum fortitudo et justicia regis vel vicecomitis adhibeatur.’
Nothing can set the essential character of the bishops' courts in a clearer light than this document. The King declares that their condition under the Saxon kings was unsatisfactory. He forbids the bishop to sit in the Hundred Courts. He authorizes them to hold courts of their own, in which the canon law is to be administered; and finally he orders his officers to enforce their process if any one despises it. Is it not obvious that, but for the powers thus given them, the bishops and their courts would have had no authority at all except such as the conscience of each individual might happen to give over him personally?
The subsequent history of the Church of England has corresponded exactly with this beginning. For several centuries the Pope exercised great authority over it, hearing appeals in the last resort and exercising in other ways the supremacy which he claimed; but his power extended only so far as the laws of the land allowed it to extend. It neither did nor could execute itself without the assistance of the civil power, and in several well-known instances, and especially in the two great cases of the statutes against provisions and the statute of Praemunire, there was a direct conflict between the two authorities. The conflict at the Reformation was of the same kind, and the result has been before the world for the last three centuries. The short result of it (for it would be tedious to quote the well-known statutes in which that result has been embodied) was, that the power of the Pope was altogether disavowed and rejected; that the supremacy of the King and his authority, both legislative and judicial, over all causes and all persons within his dominions was affirmed in the strongest terms that the language furnishes, and that repeatedly; and that the different assemblies of the clergy were all made dependent on the royal authority, and subordinate to the law of the land. This was the Reformation, considered as a change in Church government, and upon that footing the affairs of the Church of England have been managed ever since.
The inconsistency of these unquestionable facts—facts than which our history contains none more important or notorious, and the view taken of the Church by the Bishop of Cape Town, is patent to every observer. Whatever else may be the subject of dispute, this at least is indisputable, that throughout the whole history of the Church of England down to the time of the Reformation, there never were more than two claimants of legislative authority, namely, the Pope and the Crown. That the clergy of England ever made laws at all, except in connexion with one or the other of these authorities, is the idlest of fancies. The Crown, the nation at large, have a case; the Pope had a case; but the English clergy had not only no case at all, but they never supposed themselves to have one till after the battle had been fought and the victory decided.
The Bishop of Cape Town, no doubt, calls the Church a corporation, “a branch of the oldest corporation in the world, but in fact it is no such thing. It has not one of the incidents of a corporation-incidents, it is to be observed, not arbitrary or technical, but general and necessary, arising out of the very nature of the case. A corporation is well described by Blackstone as “a collective body of men to whom the law allows an artificial personality, and who possess as persons corporate the character of perpetuity.’ And the principal and characteristic qualities of a corporation are, that they may sue and be sued, grant and receive, and do all other acts like an individual. They may make bye-laws or private statutes for the government of their own members, and they have a common seal, which is necessary to give validity to their acts. These may appear somewhat technical attributes, but in fact they are not so, though they may be technically expressed. The gist of them is that in order to be a corporation an institution must have such an artificial personality as will enable it to make laws for the government of its members, to do the acts which individuals usually do, and to signify the fact that those acts are done by some recognised visible sign, like the affixing of a seal. No body which has not these powers can be said to have that degree of personality or individuality which, in the common use of language, is implied by the words ‘a corporation’. Now the Church of England has not one of these powers.
It cannot sue or be sued. The Dean and Chapter of Westminster might bring an action, the Bishop of London might be sued in his corporate capacity. The Ecclesiastical Commissioners have a corporate character, but the Church of England has none. It never was plaintiff or defendant. A grant of property to it would be merely void. It never yet did an individual personal act in the whole course of its history. Again, the Church of England cannot make bye-laws to bind its members. This is so true and notorious that it forms a standing subject of complaint with a certain part of the clergy. The Bishop of Cape Town himself will hardly assert that, as a matter of fact, Convocation has any legislative power. It cannot even meet for the purpose of discussion without the leave of the Crown, and under no circumstances could it make regulations binding on the laity without an Act of Parliament. Again, the Church of England has no common seal, that is, it has no recognized organ by which its acts can be ratified or solemnized. When the bishops, the clergy, and the Convocation of the province of Canterbury all wanted to condemn the Bishop of Natal, they had no way of doing it. The strange resolutions of Convocation on his books were not only destitute of any legal validity, but they had no legal character. They effected nothing at all. The Oxford declaration, signed by eleven thousand clergymen, was only the expression of the private opinions of eleven thousand individuals. It is thus as gross an abuse of language, and as entire a misstatement of fact as can be imagined, to describe the Church of England as a corporation. Legally, it is simply a part of the laws of the land, no more and no less; and a contract to live according to the law of the Church of England is simply a contract to live according to certain provisions of certain Acts of Parliament and text-books of established authority.
It must not, of course, be inferred from this argument, that the law of England in any way denies the existence of a divinely-established form of Church government, or of spiritual powers divinely committed to the clergy. It simply leaves such powers, if they exist, to execute themselves by their own methods, and refuses to clothe them with a temporal sanction. If a clergyman, episcopally ordained, really does possess powers which are in him, but in no other human being, he has only got to use them. An artist, a surgeon, an engineer, does not want an Act of Parliament to give value to his skill: and if a bishop is really able to do things which other people who are not bishops cannot, why should not he do them? The law does not prevent him. The special functions of the clergy are preaching, administering the sacraments, ordaining, and the like. The law does not in the least interfere with any one of these functions. Under certain regulations the discharge of each of them is provided for, and they impose that degree of conscientious obligation which the public mind can be persuaded to give them. Over many people the clergy are able by the help of these powers, to exercise a very powerful influence. This is their proper sphere; but if the Church of England has ever been constant to anything, it has been constant for three hundred years to the policy of confining the clergy within this sphere. It is the great leading characteristic and essential peculiarity of the Church of England, that, as far as actual coercion goes, it is governed by the laity and not by the clergy. The clergy are not, and never have been permitted, since the Reformation, to make laws for any one, either for each other or for the laity, or in any way, either directly by open express legislation, or indirectly by judicial legislation; and if the Church in South Africa takes a different course, whatever it may be, it will not be governed in the same way, or even on the same principle, as the Church of England.
I am, Sir,
Your obedient Servant,
J. FITZJAMES STEPHEN.
Fraser's Magazine, February 1865.