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Public Religion in the English Colonies

  • C. C. Augur Pearce (a1)
Extract

It has become almost a commonplace of textbooks that English public ecclesiastical law has no application to the colonies. Halsbury states this baldly and without qualification, relying chiefly on the judgment of the Privy Council in Re Lord Bishop of Natal, a case of unquestioned significance for the development of the family of churches in the English Prayer Book tradition. But both from historical interest and with an eye to those colonies still in being, the issue is one which deserves a second glance. This article will argue that whether or not the Natal decision was right on its facts, the Judicial Committee in that case made an important distinction which later textbook generalisations—and indeed the Crown's advisers at the time—appear to have overlooked; and that other decisions, relied upon in support of such generalisations, can be supported neither from principle nor from earlier practice.

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1 Re Lord Bishop of Natal (1865) 3 Moo PCC NS 115 at 148f; Halsbury's, Laws of England (4th edn), vol 6 (1991 reissue), para 1103.

2 Even in England it is not universal, as the existence of royal peculiars has hitherto demonstrated.

3 Long v Bishop of Cape Town (1863) 1 Moo PCC NS 411.

4 Bishop of Natal v Gladstone (1866) LR 3 Eq 1; Merriman v Williams (1882) 7 App Cas 484. PC: Re Colonial Bishoprics Fund 1841 [1935] 1 Ch 148: Mills v Registrur of Deeds [1916] SALR (CPD) 417.

5 English law always treats one element of episcopacy on a ‘public’ basis, namely the capacity of bishops to transmit holy orders: see the Scottish Episcopalians Act 1711 (10 Anne, c 10) (the ‘Toleration Act 1712’): and 26 Geo 3, c 84 (Consecration of Bishops abroad), preamble. This was also the law's normal attitude to the Catholic episcopate: even where its jurisdiction was strenuously denied, its power to create clerks was recognised: R v Fielding (1705) 14 St Tr 1327: R v Millis (1844) 10 Cl & Fin 534. HL, per Lord Lyndhurst LC and Lord Brougham.

6 Long v Bishop of Cape Town (1863) 1 Moo PCC NS 411 at 460 (emphasis supplied).

7 Re Lord Bishop of Natal (1865) 3 Moo PCC NS 115 at 151 (emphasis supplied).

8 Blankard v Galdh (1693) 2 Salk 411.

9 Calvin's Case (1608) 7 Co Rep la at 17b; Blankard v Galdy (1693) 2 Salk 411.

10 R v Vaughun (1769) 4 Burr 2494. See also the fuller reasoning in Attorney-General ex rel Banff Magistrates v Stewurt (1817) 2 Mer 143.

11 See eg the Ecclesiastical Licences Act 1533 (25 Hen 8, c 21), preamble.

12 See dicta of Lord Blackburn in Lauderdale Peerage (1885) 10 App Cas 692 at 744, HL Committee for Privileges, Lord Blackburn's remarks on the law in settled colonies are adopted here, although his lordship appears to have been in error in applying them to the case before him. New York being not, as he said, a settled colony but a ceded one.

13 Anon (1722)2 P Wrns 75.

14 Campbell v Hall (1774) I Cowp 204.

15 Sammut v Strickland [1938] AC 678. [1938] 3 All ER 693, PC.

16 R v Provost and Fellows of Eton College (1857) 8 E & B 610.

17 Ex parte king (1861) 2 Legge 1307 (N.S.W.SC).

18 Ex parte King (1861) 2 Legge 1307 at 1314.

19 Re Lord Bishop of Natal (1865)3 Moo PCC NS 115 at 152.

20 Town of Pawlet v Clark (1815) 13 US (9 Cranch) 292 at 325, per Story J. This approach needs to be set against the much more well known Tractarian definition of ‘establishment’ given by Phillimore J in Marshall v Graham [1907] 2 KB 112 at 126, DC.

21 eg the Virginia Company charter of 1606 (Davidson, Elizabeth H., The Establishment of the English Church in the Continental American Colonies (Durham N. C., 1936), p 11), and the 1609 Governor's Instructions (Woolverton, John F., Colonial Anglicanism in North America (Detroit, 1984), p 56).

22 Unlike the Act of Uniformity 1558/9 (1 Eliz 1.c 2), the Act of Uniformity 1662 (14 Cha 2, c 4) did not, on its own terms, extend overseas.

23 Town of Pawlet v Clark (1815) 13 US (9 Crunch) 292.

24 Ex parte King (1861) 2 Legge 1307 at 1313. In New South Wales the deciding factor was not directly the criterion in R v Vaughan (1769) 4 Burr 2494, but a statutory provision: since the Australian Courts Act 1828 (9 Geo 4, c 83), the English law of that date had applied only ‘so far as the same can be applied within the said colony’. That this was to be decided (where doubt arose) by either the courts or the colonial legislature implied an element of discretion additional to a judicial assessment. Furthermore, any disciplinary jurisdiction had been supplanted by a statutory procedure for administrative revocation of licences: 8 Gul IV No 5 (New South Wales)(1837), s 20; Ex parte King (1861) 2 Legge 1307 at 1316.

25 See Jephson v Riera (1835) 3 Knapp 130; De Torilla v Attorney-General of Gibraltar (1969) [1812–1977] Gib LR 244 at 252, in relation to the Second Charter of Justice 1740, substituting the laws of England for the Spanish law previously applied in the Gibraltarian courts.

26 Lauderdale Peerage (1885) 10 App Cas 692 at 736, HL Committee for Privileges. The argument was put on behalf of an ultimately unsuccessful party; but there was no ruling against it by a majority of the House of Lords. A minority decided the case on the basis that New York was a settled colony and the English law of marriage applied (pp 745–748, which must have been a clear error on Lord Blackburn's part; see note 12 above) or that the royal instructions had the effect of importing the whole common law immediately (pp 751–752). The majority refrained from any ruling on the applicable law, preferring to rule that if a licence were required for the validity of the marriage there impugned, such a licence must be presumed to have been obtained until disproved (pp 742–743. 755. 761).

27 Davidson, . The Establishment of the English Church in the Continental American Colonies, p 37.

28 Davidson, p 38.

29 Act of Uniformity 1662 (14 Cha 2, c4), s 10. This Act of Uniformity, unlike its predecessors, did not apply in its face to the king's dominions overseas.

30 Davidson, p 37.

31 The Roman Catholic See of Quebec dated from 1674, the tithe from a royal edict of 1663, and the freehold from one of 1679; Moir, J. S.. Church and Slate in Canada, 1627–1687—Basic Documents (Toronto, 1967), pp 9, 14, 18.

32 Opinion of the Law Officers submitted to the Lords Commissioners for Trade and the Plantations, 10 June 1765, extracted in Moir, p 82.

33 The advice was tendered in a colonial service memorandum by one Richard Cartwright, which was followed by the passage the following year of the Act 33 Geo 3, c 5 (Upper Canada), for marriage before Church of England clergymen.

34 Opinion of Jonathan Sewell, Attorney-General of Upper Canada, 10th June 1795: Moir, pp 150–151. The Quebec Act 1774 (14 Geo 3, c 83) did not provide for direct tithing to the Protestant clergy, but for the Crown to make provision as it thought expedient.

35 Brown v Cure of Montreal (1874) LR 6 PC 157 at 204.

36 The title was accorded in 1766: Moir, p 80.

37 Quebec Act 1774 (14 Geo 3, c 83), s 5.

38 Moir, p 127. In 1807–8 the provincial Attorney-General drafted Letters Patent in case the application should be renewed. These are quoted in Moir, p 116: ‘Whereas the doctrine and discipline of the Church of Rome are professed and observed by a very considerable part of Our loving subjects of Lower Canada… We appoint… to be Our Superintendent Ecclesiastical for the affairs of the Church of Rome in Our Province of Lower Canada … within Our pleasure with a salary … and do give and grant power unto him and his successors to have hold and exercise during Our pleasure jurisdiction spiritual and ecclesiastical throughout Lower Canada according to law in the several causes and matters hereafter expressed and specified and no other […]’.

39 Brown v Cure of Montreal (1874) LR 6 PC 157.

40 See Murray v Burgess (1866) LR 1 PC 362. The statement denying the ‘established’ status of the Dutch Reformed Church in van de Vyver, J.D. in The Law of South Africa, ed. Lambert, W. A. and Scott, T. J. (Durban, 1986), Tit. ‘Religion’, at p 179, is based entirely on cases decided subsequently to the Ordinance. As to the ‘deemed contract’, compare the provisions of the Irish Church Act 1869 (32 & 33 Viet, c 42) and the Welsh Church Act 1914 (4 & 5 Geo 5, c 91). These, however, did not contain the constitutions which were to be deemed agreed by the new voluntary bodies, but rather indicated by a general reference certain provisions which had hitherto been public law.

41 ie before 1843; see above.

42 ie Calvin's Case (1608) 7 Co Rep la, and Campbell v Hall (1774) 1 Cowp 204.

43 Railing v Smith (1821) 2 Hag Con 371 at 775–781.

44 R v Inhabitants of Brampton (1808) 10 East 282.

45 See the text and notes 25 and 33, above.

46 This was promulgated in 1784 by the Grand Master of the Knights of St John.

47 In both these cases a period of military control (in Gibraltar from 1704 and in Malta from 1800) preceded the proclamation of full sovereignty. During these periods ecclesiastical supremacy could be regarded as remaining with the previous sovereign; there was accordingly no departure from principle in the Sicilian nomination and papal provision of a Bishop of Malta in 1807–08. See Bezzina, Joseph. Religion and Politics in a Crown Colony— The Gozo-Malta Story 1798–1864 (Valetta, 1985), p 171. English royal supremacy never existed over the Ionian Islands, which were never under more than a protectorate.

48 This was the pattern developed in 1733: Caruana, Charles. The Rock under a Cloud (Swavesey, Cambs, 1989), p 16.

49 General Orders for Troops and Inhabitants in the Garrison of Gibraltar, 1725, cited in Caruana, p 191. Any possible tension over the jurisdiction issue was obviated by the Catholic delegation to clergy within the colony of gradually increasing authority, sufficient to enable them to function independently of Spanish episcopal oversight: Caruana, p 32.

50 Bezzina, p 145.

51 koster, Adrianus, Prelates and Politicians in Malta—Changing Power Balances between Church and Stale in a Mediterranean Island Fortress 1800–1976 (Assen, Netherlands, 1984), pp 4042.

52 Koster, pp 47–48 (He declined because he was unwilling to take the oath imposed upon Catholic office-holders by the Roman Catholic Relief Act 1829 (10 Geo 4, c 7)).

53 Koster, p 276; Bezzina, p 146. In fact benefit of clergy was not completely abolished, since episcopal agreement remained necessary before the general courts could try a clerk; but the convention arose that this would always be forthcoming.

54 See the Religion of Malta (Declaration) Act 1922, c 79 (Malta): Cassar Desain v Forbes (1935) Malta LR 43 at 55; and Lee, Hilda I., ‘British Policy towards the Religion. Ancient Laws and Customs in Malta. 1824–51’ in (1963) 4 Melita Historica 1.

55 Bezzina, pp 168ff.

56 The resulting nine-year impasse is described in Bezzina, pp 172–177; but the difficulties were of a political rather than a legal nature.

57 Bishops Act 1539 (31 Hen 8, c 9).

58 A draft patent, conferring jurisdiction over all mainland plantations and the islands to the East, was drafted around 1660 but never sealed. It would have provided that ‘ecclesiae […] in praedita regione Virginiae et in reliquis omnibus plantationibus nostris Americanis […] sint una eademque ecciesia cum Ecclesia Anglicana, et partes et membrae ejusdem Ecclesiae, cum eadem doctrina disciplina et regimine […] habenda et reputanda’ (text in Perry, William S., ed. Historical Collections relating to the American Colonial Church, vol 1 (1870).

59 ie by an Order in Council of that year. Earlier papal Bulls purporting to transfer the Islands to English dioceses had been disallowed, and the jurisdiction of Coutances affirmed, by an Order in Council of 1550. See Eagleston, Arthur J., The Channel Islands under Tudor Government 1485–1642 (Cambridge, 1949), pp 35. 54.

60 Part of the significance of this grant lies in the fact that such authorisation was thought necessary, both by Gibson himself and by his predecessor Compton. The latter had begun his episcopate in 1677 by claiming that the churches of the colonies lay ‘in my diocese’ as a matter of custom. But by 1685 Compton was admitting that such a belief had no legal foundation, and was seeking de facto control over clergy by the indirect means of royal instruction to colonial governors. See Bennett, J. H.. ‘English Bishops and Colonial Jurisdiction 1660–1725’ in (1963) 32 Historical Magazine of the Protestant Episcopal Church 175 at 176–179; Cross, Arthur L., The Anglican Episcopate and the American Colonies (New York, 1902), pp 283ff.

61 George Whitefield. for example, suspended from the ministry in 1740 for preaching in dissenting meetings and departing from the Prayer Book, remarked that he should regard the commissary's sentence ‘as much as I would a Pope's bull’. In 1757 the Governor of Virginia deprived a minister after it was recognised that the commissary had no power to do so: Cross, pp 81–86, 136–137. That the commissaries were not wholly ineffective can be ascribed to an acceptance of the bishop's role which falls in the category of private or voluntary authority.

62 Act for the Establishment of Religious Public Worship in this Province, and for the Suppressing of Popery 1758 (32 Geo 2, c 5) (Nova Scotia).

63 Fingard, Judith. The Anglican Design in Loyalist Nova Scotia 1783–1816 (London, 1972), pp 1819, 127, 179. See also the Letters Patent for Quebec, extracted in Moir, Church and State in Canada, 1627–1687 — Basic Documents, p 111.

64 Constitutional Act 1791 (Imperial Parliament) s 40.

65 eg 6 Geo 4, c 17 (1824) (Jamaica); East India Act 1833 (Madras); Bishops in Foreign Countries Act 1841 (Jerusalem).

66 Theoretical Dutch claims notwithstanding, no European power had established a legal system in New Zealand before the English arrived. Nor had the territory in 1841 (the date of the bishop's appointment) been granted responsible self-government.

67 Bishop of Natal v Green (1868) 18 LT 112. [1868] NLR 138.

68 Ex parte King (1861) 2 Legge 1307 at 1324.

69 Abolition of High Commission Act 1640 (16 Cha 1. c 11), s 5; Ecclesiastical Jurisdiction Act 1661 (13 Cha 2, st 1, c 12), s 5.

70 Long v Bishop of Cape Town was heard in the Cape Supreme Court by Bell and Watermeyer JJ. The fact that the first instance judgment was never printed in the English law reports was regretted by another Watermeyer J. who approved it on this point in Mills v Registrar of Deeds [1936] SALR (CPD) 417 at 435.

71 Re Lord Bishop of Natal (1865) 3 Moo PCC NS 115 at 153. 71

72 This is why the Cape Division of the South African Supreme Court was wrong to see a contradiction between the Privy Council's remarks on the seventeenth-century statutes and on Crown colonies: Mills v Registrar of Deeds [1936] SALR (CPD) 417

73 See Middleton v Crofts (1736) 2 Atk 650.

74 Mackonochie v Lord Penzance (1881) 6 App Cas 424 at 446, HL. Much of the confusion may be traced to a loose use of language by Coke CJ in Caudray's Case (1591) 5 Co Rep 1a. when he listed a number of causes involving public ecclesiastical law ‘which belong not to the conusance of the common laws of England’. The word ‘conusance’ (= cognisance) is significant: Coke was speaking of judicial fora and meant that such cases did not belong to the English common law courts, given the availability of episcopal tribunals more learned in some of the relevant law. But in the colonies lacking such tribunals. Coke's words have no application, since wherever the king's ecclesiastical laws apply and episcopal (i.e. civilian) expertise is not available, the ordinary courts must do the best they can: Carter v Crawley (1680) T Raym 496. See also Attorney-General v Dean and Chapter of Ripon Cathedral [1945] Ch 239. [1945] 1 All ER 479.

75 Re Seidler and Mackie [1929] 4 DLR 478. Alta. SC.

76 An invaluable modern overview is given by Doe, Norman, Canon Law in the Anglican Communion (Oxford. 1998). The greater part of the South African cases was devoted to the question how the contract binding voluntary Protestant episcopal associations, where no public jurisdiction existed, should be construed: to the prerogatives of the Crown in such circumstances: and to presumptions arising from the use by such bodies of the name ‘Church of England’.

77 See note 25 above.

78 The compact of that society was still not identical with the jus commune, which is why the Catholic Vicar Apostolic. Hughes, was committed to prison in 1841 for contempt of a court order enforcing it: Hughes v Porral (1842) 4 Moo PCC 41 at 60.

79 The tenor of the patent is given in Knight, Henry J. C., The Diocese of Gibraltar—A Sketch of its History, Work and Tasks (London 1917), pp 4244.

80 The effect of the Letters Patent in Malta, where they were confined to churches consecrated for Prayer Book worship and left the public status of Roman Catholicism elsewhere unaffected, is a more complicated issue. Different questions are also raised by the Foreign Office circular of November 1842 concerninga transfer to the Bishop of Gibraltar of ‘spiritual superintendence’ over Prayer Book congregations outside the Crown's dominions. A consideration of the latter point belongs in the study of voluntary Protestant episcopacy which this article consciously omits.

81 Knight, pp 91, 110.

82 A recital to the contrary in the preamble to the Anglican Church (Property and Administration) Ordinance 1876 No. 6 (Malta) must be seen as an exaggeration.

83 Letter of the Rt Revd John Hind to the Editor at (1998) 5 Ecc LJ 137.

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