NISI PRIUS.]

REG. v. DOdd.

tion is a trade union. Amongst other objects it has a benevolent one, providing for the relief of members in cases of accident, and also funeral expenses in case of death. It provides also far assistance in strikes, the 35th and 36th rules expressly bearing on that. Between June and Dec. 1864 we contributed to strikes in various parts of the country, and the amount so contributed is about the average of a quarter's assistance for such purposes."

Hopwood, for the prosecution, said that he would save the prisoner's counsel trouble by admitting, in the fullest manner, that the society was unenrolled, not protected by the Friendly Societies Act, and that some of its rules might be in restraint of trade.

|

[NISI PRIUS. friendly societies only; and all that the court held was, that as the society was not a friendly societynot one within the contemplation of the Act-but a trade union, the magistrates could not exercise the summary powers conferred upon them by the Friendly Societies Act. That was all; the case decided nothing more; and those who act upon that case, on the supposition that it left the property of those societies entirely unprotected, commit a great mistake. These societies are only illegal in the sense that the law does not give them the special remedies provided by the Friendly Societies Act, but in no other sense are they illegal; and both their persons and their property are as much protected by the law as those of any other persons or societies. I am of opinion here, that although the society is a trade union, the money in the hands of E. Jones, who appeared for the prisoner, then the prisoner, as treasurer, was the money of the took the objection that this society, being one collective body, the property of the members of that that was in restraint of trade, came within the society, no matter that it was a trade union. It was decision in the case of Hornby v. Close, L. Rep. their property, and inasmuch as the prisoner forged 2 Q. B. 153; 15 L. T. Rep. N. S. 563, where what purported to be a receipt by the bankers of it had been held that a society, some of their money, I think he is guilty of forgery. To whose rules were in restraint of trade, was not constitute forgery you need not prove an intention within the 18 & 19 Vict. c. 63, relating to friendly to defraud any particular person. Here he either societies, and therefore not entitled to the benefit of intended to defraud the bankers or the collective the summary powers conferred by that Act, as body of the society; and the fact of this being a being an illegal society, and consequently could trade union makes no difference whatever in the have no legal existence. The prisoner was accused legal character of the case. of forging entries in a pass-book which purported to be that of the Manchester Operative House Painters' Association, and to show that the society had a certain amount at their bankers, when in fact they had not. He submitted that in point of law there were no funds of this society (it being illegal) in the bankers' hands, and that, therefore, there could be no forgery in regard to such funds. This association would be taking advantage of its own wrong in insisting that it had such funds, when no such bankers' account as that alleged to have been forged was legally in existence. The bankers' account must be with something having a legal existence, and here, he submitted there was no account in existence at all as between the bankers and this society. Asserting that the bankers had in their hands 8007. belonging to a non-existent society would be no more a forgery than if it had been alleged that they had in their hands so much moonshine or air. To constitute forgery in contemplation of law the forgery must be of something that is legally possible; but here the law says that such a E. Jones. Another objection is, as to the intent society as the Manchester Operative Painters' to defraud. It must be an intent to defraud someAssociation is not possible-it does not recognise its body; and, in this case, the only parties who could existence-because it is in restraint of trade; and be defrauded were the members of the association. therefore it was not possible for the bankers to have or the bankers. But the bankers were not accountin their hands any money belonging to it. He sub-able for the moneys of such a society. Suppose the mitted, therefore, that there could be no forgery in reference to such an association.

LUSH, J.-I think the objection is entirely unfounded. It seems to be founded on an entirely mistaken view which has got into the public mind of what the decision in the case of Hornby v. Close really amounted to. The Friendly Societies Act gave summary remedies in particular cases to the magistrates in dealing with members of those societies who unlawfully withheld any part of the society's property. In that case a member of the society did unlawfully withhold some of the society's money, and he was summoned before the magistrates, under the special powers given in the Friendly Societies Act, in order to compel him to refund. The case came before the Court of Queen's Bench, and the question for that court was, whether the magistrates had those summary powers in that particular case. That depended upon whether the society was a friendly society or not, because the powers were given to the magistrates to deal with

E. Jones.-Could the prisoner be convicted of embezzlement? Supposing he had embezzled the funds of the society, could they, as a society in restraint of trade, sustain an indictment for embezzlement of their funds?

LUSH, J.-I should say, answering off-hand, that they certainly could. All that the law says is, that it will not enforce regulations which are in restraint of trade. In no other sense are these societies illegal

only the law will not enforce these regulations. What I say now must not be supposed to have the weight of authority, because the case is not before me; but, as at present advised, I have no hesitation in saying that a person who stole their money could be charged with embezzling it. There might be a difficulty in alleging the persons in whom the property was, because, not being a legally-constituted society under the Friendly Societies Act, they could not be described by their corporate name.

bankers refused to honour a draft or a cheque of the society's, the Operative Painters could not sue them, because they would have no locus standi, and no corporate officers.

LUSH, J.-Why not?

E. Jones. Because of their being an illegal association, and being unregistered.

LUSH, J.-There again, I think, there has been a great mistake.

E. Jones.-Every one of the members would have to sue.

LUSH, J.-Yes; but that is all. They could not sue in any corporate name, or avail themselves of any of the facilities given by the Friendly Societies Act; but that is all.

E. Jones.-Would not the fact of their being a society in restraint of trade be an answer to the action?

ECCLESIASTICAL.]

THE BISHOP OF NATAL v. THE REV. J. GREEN.

His LORDSHIP then went to consult Mr. Justice Mellor; and on his return said: My brother Mellor entirely agrees with me; he has not the slightest doubt upon the point.

E. Jones said he would not contest the case further; and the prisoner was found "Guilty," and sentenced to five years' penal servitude. Attorney for the prosecution, Talbot.

SUPREME COURT OF NATAL.

(Before HARDING, C.J. PHILLIPS, C. J. and CorE,J.) THE BISHOP OF NATAL v. THE REV. J. GREEN. Ecclesiastical law-Colonial bishop-Invalid excommunication-Clerical obedience.

In the colonies the Anglican Church is purely a voluntary association.

A colonial bishop was “excommunicated" by a colonial superior of the Anglican Church, which excommunication was held by the Privy Council to be null and void. A dean, appointed by the bishop so alleged to have been excommunicated, refused to recognise his capacity or authority:

[ECCLESIASTICAL.

LUSH, J.-No, certainly not. The law simply | ordered and directed that a council shall be estadoes not aid agreements in restraint of trade. They blished in this colony (i.e., the Cape), to advise and are illegal in the sense of not being enforceable by assist in the administration of the government law. The fact of the society being a trade union thereof;" and at the same time signified his pleamakes no difference whatever in the criminality of sure that this council should consist of certain six this man. As it is a point of some importance, I persons who are named; the first three being will consult my brother Mellor, and if there is any designated by office only, thus-Mr. C. J., Colonial doubt in his mind I will reserve the point for you; Secretary, and the officer next in command; and but I have not the slightest doubt about it myself. the last three being named thus, Lieut.-Col. Bellwho appears to have held no office at that timeWalter Bentinck, Esq., auditor-general, and J. W. Stow, Esq., receiver-general. This council, presided over by the Governor of the Cape, enacted various laws, which were termed "Ordinances passed by the Governor with the advice of the Council of Government," and existed until 1834, which, namely, from 1824 to 1834, may be called the second period. In 1834 the Crown, by letters patent, established at the Cape a "Legislative Council," consisting of twelve members, six as holding certain offices, and six unofficial members, but yet nominated by the governor, subject to the approval of the Crown. This council existed until 1850, when, by letters patent, power was conferred on it to pass what now exists at the Cape, namely, an elective Legislative Council and an elective Legislative Assembly. In constitution ordinances (as they are commonly called), passed for the Cape colony by the Legislative Council, authorised thereto by Her Majesty's letters patent, were amended by the Queen in Council, and, so amended, were sanctioned and allowed as law by Her Majesty, by Order in Council of 11th March 1853. It is quite notorious, and to my mind clear, that from 1806 to 1853, the Crown, by letters patent, charters, orders in council, and royal instructions, not only did, but had the power effectually to legislate for the Cape colony, notwithstanding the existence of the colonial councils of 1825 and 1835. The charters of justice to the Cape of 1828 and 1832, the order in council as to marriages, are all instances of this power. But it is said the letters patent of 1833, constituting the Cape Legislative Council, which ceased in 1853, contained a clause reserving to the Crown to "make or establish from time to time, with the advice or consent of Parliament, or with the advice of Her Majesty's Privy Council, all such laws as might to him or them appear necessary," &c. This, no doubt, is so; but I should argue that this is a reservation which need not have been made in order to retain this power to the Crown. First, because this power was inherent in the Crown under the circumstances as to legislation in which the Cape was in 1833; and, secondly, that it was clearly unnecessary and indeed inoperative, so as to retain to the British Parliament the power of legislation, for the power of Parliament cannot be curtailed. Then I would here ask if this reservation is essential to preserve to the Crown the rights it professes to reserve, why was it omitted from the document establishing the council at the Cape in 1825? I am unable to find any trace of it on that occasion; and yet, with this colonial council in existence, the Crown in 1828 granted a charter to the Cape for the better administration of justice in that colony, the validity of which has never been questioned. It granted coercive jurisdiction to the Supreme Court which it created over all Her Majesty's subjects in all cases-civil, criminal, or mixed-within the colony. The proclamation of Lord Charles Somerset, of the 2nd May 1825, is silent as to any such reservation as is contained in the letters patent of 1833. It is possible, however, that the King's instructions, which I have not the means of referring to, may contain this reservation, although I think if they did so, the proclamation announcing the creation of that council would have mentioned it. The colony of Natal was established in 1845. Pre

Held, that he could not so refuse whilst he remained a member of the Anglican Church in the diocese of such bishop.

Nature of the colony of Natal considered and explained.

The judges proceeded to deliver judgment in this case, in which defendant had been summoned to show cause why the judgment and sentence of deprivation passed by the plaintiff against him should not be pronounced by this court to be of full force and effect, and also to show cause why a perpetual interdict should not be granted against him, restraining him from officiating in any of the churches or buildings in this colony, set apart for the uses of the churches of England and Ireland, and in any of which the plaintiff is trustee; and also why he should not be ejected from the premises occupied by him as a dwelling, &c.

The following is the judgment of the Chief Justice. The first question arising to my mind to be dealt with is, when did the Crown cease to possess the power to legislate, by means of letters patent, in orders in council for the Cape of Good Hope and for Natal? In other words, when did these two colonies cease to be Crown colonies properly so called? To answer this question, it becomes necessary to look back to the history of legislation in these colonies. The Cape of Good Hope was captured from the Dutch in the year 1806. [Vide capitulation 18th Jan. 1806.] From 1806 to 1824 (which may be termed the first period) legislation at the Cape of Good Hope was carried on by means of proclamations issued by the governor, several of which are still in force in that colony. In 1814 the Cape of Good Hope was ceded to the British Crown, which in no way affected its political condition. On the 9th Feb. 1825 the King, by instructions, issued under his signet and signs manual, with the advice of his Privy Council,

ECCLESIASTICAL.]

THE BISHOP OF NATAL v. THE REV. J. GREEN.

[ECCLESIASTICAL.

vious to this it was held by, and taken from, the rebel Boers by the British troops. It was at first a district of the Cape colony, and the Legislative Council at the Cape was vested with the power of legislation as regards Natal. It was subsequently formed into a distinct and separate colony. In 1847 the Queen, by letters patent, created a Legislature for Natal, giving it power to make and ordain all such laws as might be necessary for the peace, order, and good government of the colony, and by royal"independent Legislature" or "legislative instituinstructions which accompanied those letters patent appointed three persons, namely, the Colonial Secretary, Crown Prosecutor, and the Surveyor-General, to be the members of that Legislature, and over which the Lieutenant-Governor was to preside. That council existed until 1856, when, by charter, the present Legislative Council, consisting of four officers of the Crown, and twelve unofficial members, to be elected as is therein provided, was established. This narrative has become necessary because it is argued that the Privy Council have held that after the establishment of an independent Legislature the Crown, by virtue of its prerogative, had no power to grant to the plaintiff his letters patent of Nov. 1853, creating him Bishop of Natal. It may be doubted whether the Privy Council have decided in strict terms either in the case of Mr. Long or in that of the plaintiff, that the Crown had no power to grant the letters patent it did to the plaintiff in Nov. 1853, on the ground that in 1853 the colony of Natal was possessed of an independent Legislature. The language of the Privy Council is this: "Three principal questions arise and have been argued before us; first, were the letters patent of the 8th Dec. 1853-by which Dr. Gray was appointed metropolitan, and a metropolitan see or province was expressed to be created-valid and good in law?" The answer is: "With respect to the first question, we apprehend it to be clear, upon principle, that after the establishment of an independent Legislature in the settlements of the Cape of Good Hope and Natal, there was no power in the Crown, by virtue of its prerogative, to establish a metropolitan see or province, or to create an ecclesiastical corporation." The question stated by the Privy Council refers to Dr. Gray's patent only, and their answer, in my opinion, to only one (an) independent Legislature-namely, that of the Cape of Good Hope, and to one (a) metropolitan see namely, that of the Cape of Good Hope also; for it is clear that Natal never was created a metropolitan see. It is true that, further on in the judgment, the Privy Council, assuming that the colony of Natal was possessed of an independent Legislature similar to the colony lay down this: "There is, therefore, no power in the Crown to create any new or additional ecclesiastical tribunal or jurisdiction; and the clauses which purport to do so, contained in the letters patent to the appellant and respondent, are simply void in law. No metropolitan or bishop in any colony having legislative institutions can, by virtue of the Crown's letters patent, unless granted under an Act of Parliament alone, or confirmed by colonial statute, exercise any coercive jurisdiction, or hold any court or tribunal for that purpose." I notice that in the answer to the question I have alluded to, the terms "independent Legislature" are used, whilst in the subsequent quotation the terms used are "legislative institutions." In my opinion, the Privy Council, proceeding on the erroneous assumption, either that Natal formed a part of the colony of the Cape of Good Hope-whereas, in truth, it is a separate and distinct colony, 1000 miles away from the Cape of Good Hope-or else that an "independent Legislature, or "legislative institution," existed in Natal in 1853, similar to those which then existed at the Cape of Good Hope; whereas, in truth, the Cape

of Good Hope in 1853 had an independent Parliament, consisting of an elective House of Assembly and an elective Legislative Council, whilst in 1853 the colony of Natal had no such "independent Legislature," or any such "Legislative institutions;" and, in fact, possessed a Legislature wholly dependent upon the Crown, consisting of the LieutenantGovernor and three officers of the Crown, selected and appointed by the Crown, to which the terms tion" were wholly, in my opinion, inapplicable in the year 1853, when the plaintiff received his letters patent. Indeed, I doubt very much whether either of these terms would be applicable to the council of 1856 and now existing, constituted, as it is, of official nominees of the Crown, and a certain number of non-official members elected by the people; it is half dependent and half independent, and neither altogether the one nor the other, and resembles the council at the Cape of Good Hope, established in 1833, except that the non-official element in the latter were the nominees of the Crown and not elected, as in Natal since 1856. In Mr. Long's case the Privy Co. neil lay down: "The bishopric of Capetown was founded in the year 1847. At this time the legislative authority in the colony of the Cape of Good Hope was vested in the Crown." True, but it then had a legislative council, composed of certain officers and nominees of the Crown. Besides, the legislative authority at the Cape was not, in 1847, wholly vested in the Crown; the Crown reserved a kind of concurrent jurisdiction to legislate. Well, then, if the Cape Council of 1847, being that established in 1833, was not an "independent Legislature," or a "legislative institution," how can the Natal Council of 1853, composed of the Lieutenant-Governor and three paid officers of the Crown, be termed or held to be an “independent Legislature" or a "legislative institution?" The Privy Council, in their judgment in the Colenso case, say, "We therefore arrive at the conclusion that although in a Crown colony properly so called, &c., a bishopric may be constituted, and ecclesiastical jurisdiction conferred, by the sole authority of the Crown, yet that the letters patent of the Crown will not have any such effect or operation in a colony or settlement which is possessed of an independent Legislature." I have already shown that in 1853 the colony of Natal did not possess anything even resembling an independent Legislature; it would be a caricature to apply these terms to the council which then existed. If I were called upon to define the meaning of the term "a Crown colony properly so called,” I should say it was this, namely, a colony or settlement acquired by the British Crown, by conquest or treaty, in which the power of legislation vested with the Sovereign by virtue of the Queen's prerogative, or in which legislation vested with the official nominees of the Crown, appointed by the Crown in that behalf, in which the revenue and expenditure were in the absolute control and disposal of the Crown, in which the lands of the colony were vested in and disposable of, only by the Crown, in which the accounts of the revenue and experditure were examined by and allowed, or disallowed, by Her Majesty's Commissioners of Audit in London, and in which the inhabitants of the colony had no voice or power whatever, either as to legislation or anything else connected with Government. I think a colony or settlement in the position just described would be essentially a Crown colony properly so called; at any rate it would not be possessed of an independent Legislature. If this definition is correct, then it represents exactly the condition in which the colony of Natal was in the year 1853, and prior and subsequently, as I have already shown, the Cape Colony was at that time possessed of an

ECCLESIASTICAL.] THE BISHOP OF NATAL v. THE REV. J. P. GREEne. [ECCLESIASTICAL.

independent Legislature, consisting of an elective assembly and Legislative Council. It may be said that I am bound by the decision of the Privy Council. No man is more willing or anxious to respect and uphold the judgments of their Lordships than I am. I entertain the deepest respect in a quarter where I know so much profound wisdom and learning exist. I in no manner call in question the wisdom of their decision in this instance; but I trust I need no apology for stating that, in my humble opinion, resting on the facts I have stated, their Lordships, as regarded the colony of Natal, proceeded in respect of the plaintiff's letters patent on imperfect information as to the facts in reference to the political condition of the colony in the year 1853. In questioning this part of the subject it only remains for me to state distinctly that, in my opinion, the colony of Natal in 1853 was a Crown colony properly so called. I come now to another part of this controversy, namely, had the plaintiff the power to take the proceedings and pronounce the sentence he did in regard to the defendant? To my mind the answer is easy. If, in 1853, Natal was a Crown colony properly so called, then, in my opinion, the proceedings were good and valid, as held by the Privy Council; if, on the other hand, Natal was not a Crown colony properly so called, then they are void in law, because the plaintiff could not under his patent "exercise any coercive jurisdiction, or hold any court or tribunal for that purpose," as also held by the Privy Council. The Privy Council have decided that in the colonies the Anglican Church is to be regarded as a merely voluntary association, and I view the plaintiff and defendant before the court in this sense. In the Ordinance No. 7, 1843, regulating the Dutch Reformed Church, sect. 8 lays down, "No rule or regulation of the said Church, whether contained in the schedule to this ordinance or to be afterwards framed, shall have or possess any direct or inherent power whatever to affect in any way the persons or properties of any person whomsoever. But all such rules and regulations shall be regarded in law in like manner as the rules and regulations of a merely voluntary association, and shall be capable of affecting the persons or properties of such persons only as shall be proved in the course of any action or suit before any competent court to have subscribed, agreed to, adopted, or recognised, the said rules and regulations, or some of them, in such manner as to be bound thereby, in virtue of the ordinary legal principles applicable to cases of express or implied contract." The law contains the proper legal principles by which the rights and privileges of the plaintiff and defendant are to be tested; and this is also what the Privy Council, in Mr. Long's case lay down as the legal position of the Anglican Church in the colonies. The court, then, has to decide on a simple question of evidence, as it would be left to a jury, and I am bound to say that there is abundant direct evidence in the case to show that the plaintiff and defendant were guided and bound by the rules of the Church of England, in so far as they could be made applicable to the Church here. That the defendant formally acknowledged himself as bound to the plaintiff, subject, of course, to those rules, and that so long as the plaintiff took no step which a bishop in England (viewing the parties as the creatures of English law) could not take, his acts must be viewed as within these rules. The defendant was raised to his present position of Dean of Maritzburg by the plaintiff himself, and he before this held his licence. Now, the defendant says, I will no longer acknowledge the plaintiff's capacity, still less authority, because he says the Church has excommunicated the plaintiff, a step which is based upon the proceedings of the Bishop of Capetown, which, as well

MAG. CAS.-VOL. V.

as the sentence which followed it, the Queen in Her Privy Council has held "null and void in law." This decision is binding on this court, and we must uphold it. The defendant is, of course, not bound to remain a member of this voluntary association, called the Church of England, of which, in this colony, the plaintiff is the lawful bishop; he may join any other voluntary association, or he may establish a new one, for in this colony we all enjoy full freedom of conscience, and we are at liberty to worship Almighty God in any manner or form that we may consider most proper or befitting. The defendant in his argument truly says, "Every voluntary association claims the right to expel its members; every State claims and asserts the right to banish or put to death members that are an injury to it. Can the Church be a society and not possess the like power?" A State banishes or puts to death according to circumstances any subject who disobeys the law, or who sets the law at defiance, and in the same way a voluntary association, having rules for its government and management would have a right, I take it, to expel any member who, having once acknowledged and been bound by such rules, afterwards not only refused to comply with them, but acted in defiance of the rules. The defendant states further on, "I stated that as for the reasons assigned, I had at one time acknowledged the plaintiff to be Bishop of Natal, by Divine permission, so I dared not now ascribe such authority to him, nor receive him as one empowered by God to minister spiritual gifts to His Church." I have no doubt that this is the defendant's deliberate and serious opinion, formed on grounds which, to his mind, warrant him fully in arriving at this conclusion; and he is, of course, at liberty to form his own opinion and to take the course he does, but clearly he cannot then belong to the voluntary association, namely, the Anglican Church in this colony, of which the plaintiff is the head, and to the property of which the plaintiff is trustee, and which adopts the rules of the Church of England, when he sets the plaintiff's authority and the rules vesting that authority in him at defiance. Many worthy people entertain the opinion that a State has no power to put its subjects to death for any crime, but the State thinks and acts otherwise. Suppose a criminal was ordered for execution, and that the gaoler was a person that believed that the State had no power to execute his prisoner, and that therefore on the day fixed upon, the gaoler refused not only to deliver the man to the sheriff, but proceeded to resist his being taken to execution, the State would cause the gaoler to be punished; it would say to him, you are entitled to think as you do, and to advocate your views on every lawful occasion, but you shall not set at defiance the laws of the State to which you belong, because they are binding on your acts, and your conduct must be regulated to those laws. So the defendant may cherish his own views and opinions, and he may support them by all lawful means and on all proper occasions; but if he sets at defiance the rules and regulations of the Church of which the plaintiff is the head, and under which the defendant "at one time acknowledged the plaintiff to be Bishop of Natal by Divine permission," he cannot, in my opinion, claim any privilege which those rules would otherwise allow him. Then the plaintiff is the trustee of the Cathedral, St. Andrew's, St. John's, Pinetown, and of this property the legal estate vests in him for the purposes of the English Church, of which he is the bishop, and, consequently, the head, and so soon as the defendant ceases to observe the rules of that Church, and on the contrary to act in defiance of those rules and the decision of the Queen in Council, he ceases to be entitled to any rights he possessed under those rules.

C

MAYOR, &C., OF REIGATE v. HART.