couraged the measure on account of the confusion which might arise if, on the death or resignation of Dr. Colenso, the Crown should issue letters patent and a royal mandate for the consecration of a successor. The Bishop of London's speech, however, appears to us a more rash act" than the well-considered determination to which the Bishop of Capetown has arrived, with the sanction and advice of the Archbishop of Canterbury; whilst the Bishop of Lincoln's fears are dispelled by the refusal of the Crown to issue letters patent in the case of the Bishop elect of Niagara; but the compromising tone of some of our bishops occasioned, no doubt, the absence of unanimity which was manifested in Mr. Butler's election. It is satisfactory to know that sympathy with Dr. Colenso was in no way the cause of this; and the tone of Mr. Newnham's speech leads us to hope that no schism will take place, but that as soon as they find an orthodox bishop, duly and canonically consecrated, residing amongst them, they will not be slow to yield to his jurisdiction, and to place themselves under his guidance in the fight which they are called to wage against one of the most deadly heresies that ever infested the Church.

Meanwhile, we have two pamphlets before us, the titles of which are placed at the head of this article, which are well calculated to remove the scruples of Mr. Newnham and his friends. One is Mr. Montague Bernard's remarks on some late decisions respecting the Colonial Church, and the other is the Bishop of Grahamstown's paper on the relation of the Church to the State in the colonies, contained in the Report of the Oxford Clerical Conference which we noticed last month.

Mr. Bernard treats seriatim the three judgments which are supposed to regulate the present position of the Colonial Church. İn the first, "Long v. the Bishop of Capetown," the substantive point decided by the Privy Council was that persons calling themselves members of the Church of England in the Cape Colony stand, in the eye of the law, on precisely the same footing as a voluntary religious association (such as a dissenting community) stands on here. The question was whether the bishop had a right to deprive Mr. Long of his spiritual charge, which carried with it the right to officiate in a particular church and receive the income of a trust fund appropriated to the support of that church. It was ruled that by the terms of the trust the bishop was authorized to do this for any cause which would have warranted the deprivation of a beneficed clergyman in England, but it was held that Mr. Long's offence was not such a cause. It was supposed before that, as colonial incumbents held their benefices without institution by a licence from the bishop, the bishop had the same power to withdraw his licence as an English bishop would have in the case of a licensed curate. On this supposition the Bishop of Capetown had acted; but when the matter was brought into the secular

court, from which an appeal lay to the Judicial Committee of Privy Council, it was finally decided that the terms of the trust protected the delinquent from the withdrawal of his licence.

The second judgment, that of Lord Westbury in the matter of the Bishop of Natal, pronounced against the power of the Crown to grant letters patent to bishops in colonies which possessed an independent legislature, but the judgment contained the following passages on which Mr. Bernard comments :

"After a colony or settlement has received legislative institutions, the Crown (subject to the special provisions of any Act of Parliament) stands in the same relation to that colony or settlement as it does to the United Kingdom. It may be true that the Crown, as legal head of the Church, has a right to command the consecration of a bishop; but it has no power to assign him any diocese, or give him any sphere of action within the United Kingdom. The United Church of England and Ireland is not a part of the Constitution in any colonial settlement." "Pastoral or spiritual authority may be incidental to the office of bishop; but all jurisdiction in the Church, when it can be lawfully conferred, must proceed from the Crown, and be exercised as the law directs; and suspension or privation of office is matter of coercive legal jurisdiction, and not of mere spiritual authority."

The force of a decision, Mr. Bernard rightly observes, depends on the jurisdiction of a court. The extent of it depends not on the language employed, but on the question presented for adjudication. All else is merely obiter dictum, which cannot have the force of law. The question submitted for decision was whether Bishop Gray had or had not authority to deprive Dr. Colenso. Authority to deprive may exist (a) by law; (b) by virtue of a contract previously entered into by the person deprived; or (c) by the terms of a trust, of which the person deprived claims the benefit.

It was simply decided by Lord Westbury's judgment that the Bishop of Capetown had by law no authority whatever. The question of contract or trust, not being raised, was not entered on, nor could it have been, as this was an ecclesiastical appeal, and a civil court only could entertain the question. Our own opinion has always been that the Metropolitan authority of the Bishop of Capetown is based on contract resulting from the oath of canonical obedience which his suffragans have taken. This question, however, was not, and could not have been, entertained by the Committee of Council.

The third judgment reviewed is that of the Master of the Rolls in "Bishop of Natal v. Gladstone and others," which has been delivered since the Maritzburgh election. This seems to us inconsistent with Lord Westbury's decision, as he holds that there is a Bishop and diocese of Natal known to the law, and within the

meaning of the founders of the Colonial Bishoprics Fund. Had it simply been decided as a question of trust that as the deprivation of a Bishop had not been provided for, Dr. Colenso had broken no conditions under which he received his income, the judgment would have been consistent with Lord Westbury's, and easy to be understood; but when it is asserted that there is a Bishop of Natal known to the law, and one who possesses jurisdiction, it is clear either that Lord Westbury and Lord Romilly must have used the word jurisdiction in two different senses, or else that the two judgments are irreconcileable.

The discrepancy was one which might well tax the ingenuity of the Chichele Professor of International Law, and very ably has he endeavoured to untie the knot. A voluntary association is defined as one whose rules are not part of the law of the land, and are not enforced as such. Their officers have no legal status, but are, in the eye of the law, private individuals, as of course were the Bishops, Priests and Deacons of the ancient Church. The Church of England and Ireland is a political as well as a religious society, but it would not cease to be a religious society, if the sanctions of law, on which it has for centuries relied, were removed, although Mr. Bernard thinks this would be a severe shock.

"To speak," he says, "of the inhabitants of a colony, where there is no established Church, as being members or forming part of the Established Church of England and Ireland, is nonsense, if we use that phrase in its literal acceptation, as meaning the political society constituted under that name by law in England and Ireland. Where they live the laws which made that society do not exist, and the society itself therefore can have no existence. To use this expression, therefore, is to affirm, what some deny, that there is under that name a religious society as well as a political one; and it really amounts to no more than an assertion that there are in the colony persons accepting the same religious belief, the same forms of worship, and, as far as may be, the same or a like religious organization as are accepted by the persons composing that religious society in England."-Bernard's Remarks, &c., p. 11.

The capability of a minister of a voluntary religious community may incidentally be questioned in a civil court, and then the judge would have to inquire what were the doctrinal standards of that society. Persons in the colonies calling themselves members of the Church of England, would be bound by the same Articles and formularies as those which the Church in England professes; for a judge would be justified in assuming that their standards were the same. This however would not be ecclesiastical jurisdiction, but a question of contract. What then is jurisdiction? Lord Westbury says that certain colonial Bishops possess no jurisdiction, whilst Lord Romilly affirms that they do. All jurisdiction

must be coercive in some way. It involves the idea of authority to pronounce a judicial sentence.

"If by disobedience," continues Mr. Bernard, "I expose myself to some legal sanction-to be imprisoned for contempt of court, or to have my goods seized by the sheriff-that is a legal obligation: if to some evil not imposed by law, such as the expulsion from a club to which I like to belong, there is a force analogous to but not incidental with a legal obligation; if only to my own self-reproach, nothing but what we call a moral obligation remains."—Bernard's Remarks, p. 14.

Jurisdiction, then, is necessarily coercive, but not of necessity legal. Within a voluntary religious society it is, like that of an arbitrator by whose decision persons agree to abide, founded on compact, whereas in an Established Church like that of England, it is founded on law, and the judgment pronounced is the sentence of the law, and not the decision of an arbitrator. Consequently in a colony, where the Church is not established, the jurisdiction of a Bishop, although coercive, is not legal, and the Bishop has no legal status, and is subject to no legal jurisdiction. The jurisdiction which he professes and to which he is subject, is the result of compact, and does not rest on distinct legal sanction. The supremacy of the crown is part of the law of an Established Church, but where there is no Established Church, as in the colony of Natal, the supremacy cannot exist. The 37th Article affirms, that "the Queen's Majesty hath the chief power in this realm of England, and other her dominions, unto whom the chief government of all estates of this realm, whether they be ecclesiastical or civil, in all causes doth appertain ;" and this is construed by Lord Romilly to mean that the power of appointment and control on the part of the crown must be deemed an element in the trust or contract between members of the voluntary society as being a fundamental tenet of the English Church. But this royal supremacy could not from the nature of the case exist where there is no establishment. An appointment might be made by the sovereign by virtue of a trust or compact amongst private individuals, but that appointment would not be made by the queen as sovereign, but as the person designated in the deed; but the British constitution does not contemplate any action of the sovereign towards the Church except in the character of sovereign and by virtue of law, and Lord Carnarvon asserts that it is inconsistent with the dignity of the crown to act at all where she cannot do so by virtue of law. Consequently it follows that if Lord Romilly's interpretation of the 37th Article is correct, the English Church as a religious body cannot possibly exist in such a colony as Natal, or else that no religious society in such a colony can possibly hold the tenets of the English Church.

"The view," concludes Mr. Bernard, "on which the Colonial Office

has acted during a long course of years in respect of episcopal appointments, was supported originally by the authority of some of the greatest English lawyers, and has received a kind of implicit sanction from several parliaments; but it has broken down at last when judicially tested in a court of law, and it would certainly sooner or later have broken down in practice. The principle that the Church in the colonies is a voluntary society must be recognised frankly and thoroughly by the law, and by churchmen themselves; and whatever we do must be based on it if we wish that what we do shall last."-Bernard's Remarks, p. 21, 22.

And now we turn to the Bishop of Grahamstown's paper. From the legal view of the independence of the colonial Church, we turn to the practical conclusions of a Bishop who presides over one of those dioceses to which the judgments in question apply, and this opinion is all the more valuable as being that of one who is not likely to be guided in this matter by any party bias, since his name is usually associated with the so-called Evangelical section of the English Church. But a statement more clear, manly, and firm, could hardly be desired, and it forms a strong contrast with the Erastian speech of the Bishop of London in Convocation. Some of our English Bishops could not understand how the Church could exist as a voluntary association unprotected by the royal supremacy; but the Bishop of Grahamstown has sufficient faith in her inherent vitality to believe that she could not only exist, but be more vigorous without it. The difficulty respecting the Church's missionary functions which arises from the supremacy notion is well stated; for if the supremacy is essential to the existence of the English Church, how can she extend herself by missionary operations beyond the boundaries of the British empire?

"Whilst it fulfils the duty," he says, common to all Christian Churches, of preaching the Gospel of the Redeemer to heathen nations, and of providing spiritual ministrations for its own members scattered over the earth, can it not at the same time form for their benefit branches of itself? Is it not possible for the English settlers in our colonies at least, who love the communion of their fathers, to have a real and complete Church of England out of England-a Church which, though itself not established and united with the State, shall yet be in all respects the very counterpart of the mother Church which is yet so united."-Oxford Conference, p. 72.

The decision of Lord Kingsdown swept away, the Bishop considers, the greater part of the so-called royal supremacy in an unestablished Church, and left nothing of it that could be made the basis for Church organization. Lord Westbury's judgment went further and denied the right of the sovereign without legislation to found Bishoprics, or assign to Bishops any sphere of action.