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 REVIEW 
 
 OF A TliEATISE ENTITLED 
 
 THE SOUTH AFRICAN CHURCH QUESTION 
 
 BEING 
 
 THE GEAHAMSTOWN JUDGMENT 
 
 EDITED, AVITII AN 
 
 INTRODUCTION 
 
 BY 
 
 CHARLES JAMES COOPER 
 
 Of Lincoln's Inn, Bakkister-at-Law. 
 
 REPEINTED FEOM THE " CHURCH CHRONICLE" FOR OCTOBER, 1884. 
 
 GRAHAM8T0WN : 
 
 Richards, Slater, and Co., Printers and Publishers. 
 
 1 884.
 
 REVIEW 
 
 Mr. C. J. Cooper, Barrister-at-Law, of the Diocesan College, 
 Rondebosch, has published an edition of the " Grahamstown 
 Judgment," very correctly printed in good clear type and on good 
 paper. He has provided for those who take any interest in the 
 subject, a convenient hand-book for study or for reference, but 
 we suppose that his chief object in the publication is to draw 
 attention to the introduction, in which his own views on the 
 South African Church question are set forth. 
 
 We thank Mr. Cooper for some useful references to legal 
 documents, and for his kindly appreciation of the motives of 
 those who take a view most contrary to his own upon the whole 
 question. He does not charge them as some have done with 
 disloyalty and dishonesty — he thinks their belief thoroughly 
 ill-founded, and asks them ''to re-consider their position and to 
 take a calm view of all the bearings of the existing great crisis." 
 
 Mr. Cooper contributes not a little towards enabling us to 
 take a calm view of all the bearings of the matter by stating 
 plainly the conclusions to which his own views lead. To those 
 who think that some small concessions, or alterations of 
 language, such for instance as a change in the official title of 
 the Church of the Province, would be sufficient to conciliate the 
 party in whose interest he speaks, his conclusions may be 
 startling ; but they do not seem strange to those who have long 
 seen the logical consequences of the proposals and arguments 
 advanced, sometimes in moderate, sometimes in violent lan- 
 guage, by the chief leaders of the party. His demands are, 
 
 1. The complete abrogation of the existing Constitution of 
 the Province. 
 
 2. The dismemberment of the Province. 
 
 3. The dealing with the whole position of the South African 
 Church de novo. 
 
 If the Church of the Province will thus perform '* The 
 Happy Dispatch" without delay, he and his friends will be' 
 satisfied, but not otherwise. Galgacus said of the Roman 
 invaders of Great Britain, " Ubi solitudinem faciunt pacem
 
 appellant." (Where they make a waste they call it peace). We, 
 like the Britons of old, feeling this mode of peace-making to be 
 both unnecessary and cruel, naturally object to being made 
 victims to it ; still we will take as calm a view as possible of 
 these proposals to bring about the utter destruction of a system 
 to which the Church in South Africa, as we believe, owes much 
 of its energy and vitality. 
 
 I. We do not think that Mr. Cooper's facts and arguments 
 justify his conclusions. To reconcile us to " the abrogation of 
 the existing Constitution," he tells us that "to form such a 
 Constitution was ultra vires'' Barristers are supposed to know 
 more about law than Clergy— and if all authorities learned in the 
 law agreed with Mr. Cooper, there would be some reason for 
 yielding to his dicHun, But they do not. We remember, though 
 Mr. Cooper does not, that in framing this constitution the 
 advice of some of the most eminent lawyers in England was 
 taken and followed. The Canons were very much the same as 
 those adopted in Canada, New Zealand, &c. '' The Constitu- 
 tion Deed which contains all the important points was forwarded 
 to R. Palmer [now Lord Selborne] for his revision. He highly 
 approved of it, and made several important alterations. Judge 
 Connor and the Solicitor-General here both helped to perfect 
 it." * Mr. Cooper indirectly accuses these eminent lawyers of 
 advising the Church of this Province to act ultra vires in forming 
 its Constitution. 
 
 But, in point of fact, did the Church here act ultra vires } 
 When a company or corporation does act ultra vires— i.e, beyond 
 the powers conferred upon it or inherent in it, the act is invalid, 
 and it is set aside directly it is examined in a Court of Law ; as 
 for instance, when a person contracts to give away the rights of 
 other people. Now the Constitution of the Church of the 
 Province of South Africa has been examined before a Court of 
 Law. It is conceivable that that Court might have said, (indeed 
 if Mr. Cooper's dictum had been true, it must have said) " In 
 forming this Constitution the South African Church has acted 
 ultra vires, it has professed to do what it had no power to do." 
 The Court did say, " It was competent for the Church of South 
 Africa to establish for itself any system of law which it thought 
 fit." Mr. Cooper's dictum is completely refuted by the Judgment 
 he has edited. 
 
 * See Life of Robert Gray, 1876, Vol. II. p. 489. 
 
 ,uiuc!.!
 
 2. To reconcile us to the dismemberment of the Province, 
 Mr. Cooper calls the Province ** simply a monstrosity." He 
 thinks that the Metropolitan of Capetown, if he is to have a 
 Suffragan at all, should have only the Bishop of Grahamstown. 
 He should remember that though hard words break no bones, 
 they have no power to sooth feelings, especially when they are 
 unjustly applied. In this case his reproach falls on the legal 
 advisers of the Crown, and the authorities of the Church of 
 England rather than on the Church of the Province. The legal 
 advisers of the Crown made a mistake without doubt, when they 
 professed to confer on the Bishop of Capetown the powers of a 
 Metropolitan as well as the title, for it was afterwards proved 
 that the Crown had no power to erect a Diocesan or Metropoli- 
 tan See in such a Colony as this.* But they have not yet found 
 out that they were creating " a monstrosity " when they professed 
 to subject the Dioceses of Natal and St. Helena to the Metro- 
 politan of Capetown. Mr. Cooper is quite mistaken in thinking 
 that '* unless countries are politically confederated," they cannot 
 be united in one Ecclesiastical province. As a general rule, the 
 ancient Church followed the political divisions of the Roman 
 Empire in arranging her Provinces and Dioceses : but she did 
 not tie herself to follow that model ; she arranged them as she 
 thought most conducive to her own spiritual government 
 and discipline. In some cases the union of Dioceses in a 
 Province depended rather upon geographical than upon political 
 considerations. The first Lambeth Conference strongly recom- 
 mended the association of Dioceses into Provinces, "in accord- 
 ance with the ancient laws and usages of the Christian Church, " 
 and thought it expedient that these ecclesiastical divisions 
 should follow as far as possible the civil divisions of countries. 
 The second Lambeth Conference in repeating the recommenda- 
 tion, observed that some Dioceses were "geographically incapable 
 of being so combined." It referred however with satisfaction 
 to the " Province of South Africa with eight Dioceses, " 
 evidently not being aware of any " monstrosity " in the 
 formation of this Province. We consider it a special honour 
 
 * It was resolved at a meeting of English Bishops in 1853 that Metropoli- 
 tans should be at once appointed over the Churches of Canada, New Zealand, 
 and South Africa ; and the concurrence and joint action of the Crown was 
 sought and obtained. The Crown was willing to give the force of law, as far 
 as it could, to the decision of the Church.
 
 and privilege of this Province that it forms a link between 
 members of the English Church of different races living under 
 different governments, and without interfering with politics 
 cherishes a friendly feeling and a sense of unity, a sympathy 
 in common action for common objects, between many of the 
 leading minds of each community. It has solved in its own 
 sphere that problem of South African Confederation for the 
 solution of which politicians have yet to wait many years in 
 their department of life. Yet Mr. Cooper evinces a strong 
 antipathy against this special feature of our Province ; and the 
 reason is not far to seek. There is still in his mind a lingering 
 belief in the right of the supreme temporal power to prescribe 
 to its own subjects what they shall believe, or at least what 
 faith they shall profess, but not to impose that profession on 
 foreign nations. He sees clearly that it is absurd to expect 
 members of a voluntary religious body working outside the 
 Queen's dominions to look up to an English Lay Court for final 
 decisions in faith and doctrine, when that Court has not any 
 power to touch them, or the disposal of their property— and has 
 not the slightest pretence to be supreme over them. He wishes 
 to establish the supremacy of the Privy Council over one part of 
 the Province, and feels that it is impossible to maintain it over 
 the other part ; therefore he wishes to dismember the Province. 
 If the Bishop of Bloemfontein, for instance, has to apply to a Civil 
 Court to enforce a decision of his Diocesan Court, within the 
 boundaries of the Free State, no appeal can be carried to any 
 English Court upon the matter. 
 
 The Courts of the Free State would intervene to settle ques- 
 tions as to the possession or due administration of property in 
 such cases, and their decision would be final between the parties. 
 They might possibly ground their decision upon their own 
 interpretation of the doctrinal formularies of the Church. The 
 Church's duty would be to submit to their decision as regards 
 property ; but would the Church be in the slightest degree 
 compromised by their ruling with respect to questions of faith 
 and doctrine ? Would it be bound for the future to interpret its 
 standards,' as the law of the land had interpreted them ? The 
 Proviso prevents any mistake on this head — without the Proviso 
 difficulties might be felt. 
 
 3. Mr. Cooper proposes to "deal with the position of the 
 South African Church de novo^' as the only remedy for "the deep
 
 unrest and sorrowful misgivings " of dissatisfied Cliurchmen, 
 who *' through a feeling of endangered Catholic unity and of 
 fidelity to the cause of liberal comprehensiveness," object to the 
 present Constitution of the Church of the Province. This 
 proposal is certainly radical enough, but it is very indefinite. 
 We have a right to ask, when you have destroyed the present 
 system, what do you propose to set up instead of it } Arguments 
 have been brought forward to show that any attempt at self- 
 government by the Church of the Province must endanger that 
 legal connection with the Church of England, which is the one 
 treasure to be retained at all hazards. Some seem to think that 
 the Government of this branch of the Church would be safer in 
 the hands of the Archbishop of Canterbury, or of his Secretary, 
 than in those of the Provincial Synod. " A Synod with coercive 
 authority is a standing menace to the health and very life of the 
 Church " says Mr. Cooper: he could endure "a Pan-South- 
 African Synod which should advise, and not govern." He objects 
 to a Synod, as far as we can understand him, which has power to 
 make rules really binding on those "who expressely or by implica- 
 tion have assented to them," for the ** coercive authority " of 
 the South African Provincial Synod really extends to such 
 persons, and to such only. According to Mr. Cooper's views, so 
 long as the Canons and Constitution of the Province could with 
 any plausibility be represented as a mere draft that bound nobody, 
 they did no harm ; but when the highest Court of Appeal 
 acknowledges their binding force, they must be got rid of at 
 once, and we are invited to deal with the position de novo. We 
 respectfully decline the invitation. " The liberties of the 
 individual components of the great congregation of faithful men 
 which forms the Church are quite as sacred as those of the 
 Church corporately considered." " It is all important to be on 
 the watch against a voluntary surrender of freedom." If Mr. 
 Cooper means here the liberty of the individual to do wrong 
 with impunity, to teach false doctrine and to live an immoral 
 life without being called to account, we entirely differ from him.. 
 He speaks with respect of the Catholic and Apostolic principles 
 of the Church of England. One of those principles is that 
 "the right use of ecclesiastical discipline" is one of the three 
 marks or notes by which the true Church of Christ is known.** 
 "It appertaineth to the discipline of the Church that enquiry be 
 * Homily for Whitsunday. ;
 
 made of evil Ministers, and that they be accused by those that 
 have knowledge of their offences ; and finall)' being found 
 guilty by just judgment be deposed."* Mr. Cooper's caution 
 against "a voluntary surrender of freedom" combined with the 
 demand made elsewhere, ''That no declarations of subscription or 
 contracts shall be required of the Clergy but such as may by law 
 be required or enforced in England," would render all discipline 
 over the Clergy impossible ; and it appears that Mr. Cooper 
 thinks it better to tolerate any false doctrine or immorality in a 
 Minister than " to produce an unhappy appearance of a conflict 
 between the spiritual and the temporal elements in the Church's 
 Constitution, and to obscure in numerous minds their former 
 appreciation of the merits of that alliance between the Church 
 and State, which had so long and so very widely been believed to 
 be the peculiar advantage of the Elizabethan Settlement of the 
 Church's affairs." The very reason why subscriptions, and 
 cont'"acts, and " a voluntary surrender of freedom" so far as to 
 promise obedience to the enactments of Synods, are necessary 
 out here, is that in this Colony the State has renounced all 
 alliance with the Church. The Law Courts have decided that 
 the Crown is unable to give any jurisdiction to ecclesiastical 
 authorities, and pointed out that the only way in which members 
 of the Church of England in this Colony can enforce any 
 discipline within their body is by means of contract. (See the 
 quotation from the Long Judgment on p. 45 of Mr. Cooper's 
 book). Mr. Cooper sets himself in direct opposition to the 
 Privy Council when he decries the authority allowed by law to 
 such bodies as the Provincial Synod. 
 
 The general principles on which the Church of this Province 
 has acted are known and accepted throughout the Anglican 
 Communion ; we cannot regard the suggestion to deal with the 
 position of the Church here de novo as an open question. To 
 blot out the past is impossible, to attempt to do so is irrational, 
 to make use of the lessons of history is a common duty, which 
 the Church here has not neglected. 
 
 " A grave responsibility attaches to the Church body in 
 general in view of the lamentable state of things at Natal." 
 
 Had the present Constitution of the Province been framed 
 ten years earlier, the peculiar complications of the Natal case 
 
 * Articles of Religion, xxvi. Of the unworthiness of Ministers, &c.
 
 would not have arisen ; but on the other hand, without the 
 peculiar experience gained in the Natal case the Constitution 
 would hardly have contained the provisions and precautions 
 which were thereby proved to be necessary. 
 
 The Metropolitan was ostensibly " authorized and directed " 
 by the Crown to "take cognizance of any proceedings insti- 
 tuted " against any of his suffragans, to perform a duty naturally 
 belonging to the office of Metropolitan. He did so, and his 
 sentence was pronounced by the Privy Council to be " null and 
 void in law," the Crown not having had the power to give the 
 jurisdiction it professed to give. 
 
 When S. Paul gave sentence that the incestuous Corinthian 
 should be cast out of the Church, Gallic might have pronounced 
 the act " null and void in law," because there was no law or 
 ordinance in the Roman Code to authorize such an act. Yet the 
 act was really valid, and had its proper effect. The Church has 
 authority which the State did not bestow, and by that higher 
 authority the Metropolitan acted, and the living voice of the 
 Church in the Anglican Communion approved of his action.* 
 The temporal law maintained Dr. Colenso in the possession of 
 his title and property, it did not pretend to command the 
 Metropolitan to receive him back into communion. Still great 
 confusion of thought ensued ; many supposed that the declara- 
 tion of the Privy Council that the Metropolitan's sentence was 
 " null and void in law," was equivalent to a justification and legal 
 sanction of all that Dr. Colenso had taught. The Provincial 
 Constitution was not responsible for these complications, or for 
 this confusion, for it was not yet in existence — but the existence 
 of the Constitution is the best security against the recurrence of 
 similar complications. It has provided a safeguard which the 
 law will recognize, where the law itself had really provided none. 
 Mr. Cooper has reminded us that certain eminent lawyers. Sir 
 J. Coleridge, (now Lord Coleridge) Sir R. Palmer, (now Lord 
 
 *" This action of the African Church was approved by the Convocation of 
 Canterbury; by the Convocation of York ; by the General Convention of the 
 Episcopal Church in the United States in 1865 ; by the Episcopal Synod of 
 the Church in Scotland ; by the Provincial Synod of the Church in Canada, 
 in the year 1865 ; and finally the sphitual validity of the sentence of deposi- 
 tion was accepted by fifty-six Bishops on the occasion of the Lambeth 
 Conference." Reports of Committees appointed by the Conference, viii. pp. 
 37,38. 1867.
 
 Selborne) and Dr. Deane were consulted in 1869 as to whether 
 there was any means of bringing Dr. Colenso to trial for heresy. 
 Their answer was, '* We are of opinion that no means at present 
 exist for trying before any tribunal competent to decide the 
 question whether or no Dr. Colenso, the present Bishop of 
 Natal, has advocated doctrinal opinions not in accordance with 
 tiie doctrines held by the Church of England ; and assuming the 
 present Bishop of Natal to have been guilty of an ecclesiastical 
 oifence, no steps can be taken to bring him, as such Bishop, 
 before any tribunal."* It is idle for men to profess that they 
 ** have no scruple whatever about entire submission to the 
 discipline of the Church as the Law of England determines it at 
 home," while they are striving to get rid of the only means by 
 which such discipline can be enforced upon offenders. 
 
 **The law is not made for a righteous man, but for the law- 
 less and disobedient." A law which can never be enforced is 
 useless for practical government. The Constitution of the South 
 African Church provides the means of removing an immoral or 
 heretical Bishop or Minister from his charge, and some for this 
 reason treat it as an enemy. If a Colonial Clergyman has been con- 
 victed in the Civil Courts of the Colony of lying, dishonesty, and 
 open immorality, the Church of England cannot touch him, or 
 remove him from his post — it has no machinery, either here or in 
 England, that it can put in motion against him for offences 
 committed here — it cannot bring him to trial, it can neither 
 protect him if he is innocent, nor punish him if he is guilty. It 
 is natural therefore for a man of bad character and immoral life 
 to vilify the rules of the Provincial Synod, and to extol the laws 
 of the Church of England, from which he has nothing to fear. 
 Good and worthy men may be led by their views of policy or 
 expediency, by their sincere dread of innovations, by their love 
 for old associations and watch-words, to hold the balance of 
 judgment not quite evenly in weighing the faults and merits of 
 a Colonial Church Constitution, but an immoral Minister has 
 personal reasons for condemning a constitution that gives power 
 to condemn him. 
 
 "The lamentable state of things at Natal, the'affliction and scan- 
 dal," are due rather to the assaults made there upon the faith of 
 the Church, than to the defence of the truth— unless indeed, as 
 Mr. Cooper seems to imply, it is a worse offence to disturb men's 
 * Forsyth^ Cases and Opinions on Constitutional Law, p. 59.
 
 faith "in the merits of the alliance between the Church and 
 State" than their faith in the fundamental doctrines of the 
 Christian religion. 
 
 It is plain that the Bishop under present circumstances, 
 cannot, for any cause whatever, remove an offending Minister 
 from an ordinance-governed Church, though we think Mr. 
 Cooper is mistaken when he says that the law of the Colony 
 protects such Clergy from the jurisdiction of the Bishops 
 and Synods of the Province. They may contract to be 
 bound by the rules of the Province and as far as personal 
 contracts and equities are concerned, be liable to the consen- 
 sual jurisdiction of the Diocesan Courts. But the fabric of the 
 Church is under the control of the Vestry, who are regarded as 
 the active " trustees and managers " of that property. There is 
 no law that we can see to prevent the Vestry from allowing an 
 immoral Minister from officiating in theirChurch, or from dismiss- 
 ing any Minister at their pleasure, except that as the Officiating 
 Minister is ex officio Chairman of the Vestry, he might refuse to 
 put to the vote the motion "That the Minister be now dismissed." 
 This unhappy condition of affairs would not be changed, if the 
 Church of the Province took steps to restore the legal connec- 
 tion with the Church of England, and even succeedod in getting 
 "the connection" legally recognized. A remedy can be provided 
 only by the Colonial Legislature — and it certainly ought not to be 
 difficult for those congregations that recognize the greatness of 
 the evil to obtain legislation for its removal. One effect, and the 
 only certain effect that has yet been shewn, of the repeal of the 
 Third Proviso would be to subject the Church of the Province 
 by its own act to the interpretations of the Privy Council in 
 matters of faith and doctrine. Mr. Cooper agrees with us and 
 with the Bishop of Capetown that this would be the effect of such 
 repeal. We cannot therefore accept Mr. Cooper's assurance 
 that "there could not be any surrender of principle on the part of" 
 the supporters of the Proviso, "if they should consent for the 
 sake of peace and harmony to " this "change in the existing 
 Constitution." The religious principle involved was well put 
 by one of the speakers in the late Diocesan Synod at Capetown. 
 " The Church has a commission from Christ to maintain and 
 transmit His religion. The State has no such commission. The 
 Church which Christ founded was a Church governed by 
 Apostles and Bishops not a Church governed by lawyers." The
 
 10 
 
 legal principle is this, (and it is approved by very high legal 
 authority) "The judicature of a Free Church must be free, and 
 not bound by the decisions of any courts, which are not courts of 
 that Church, concerning merely spiritual questions of faith and 
 discipline." 
 
 This notice has run to greater length than we intended, but 
 before concluding we might point out one or two causes of 
 perplexity, and of mistakes in practice and in argument on this 
 subject. 
 
 1. The principles of law that regulate the relations of persons 
 to each other are not identical with those that govern the use 
 and possession of property. Neglect of this difference leads to 
 false arguments from analogy. For instance, apart from any 
 special contract, the law assumes that a Colonial Clergyman stands 
 in the same relation to his Bishop, as a Clergyman in England 
 to his Bishop ; therefore, a Colonial Bishop has the same rights 
 in every Parish Church in his Diocese as an English Bishop has 
 in English Parish Churches. This is not a sound argument ; 
 for Colonial Church Ordinances have given all control of the 
 fabric to the Vestry and none to the Bishop, whose office they 
 utterly ignore. 
 
 2. The Association or Corporation styled the Church of the 
 Province of South Africa is not legally connected with the 
 Church of England ; but the individual members of the Associ- 
 ation are legally members of the Church of England, and some 
 of them have civil rights in the Colony as such. Similarly the 
 Society for the Promotion of Christian Knowledge was not 
 legally connected with the Church of England, though by its 
 old rules none but members of the United Church of England 
 and Ireland could become members of it. It is not always easy 
 to distinguish individual and corporate rights. 
 
 3. There is a difference between the principles of the Church 
 of England and the laws of the Church of England. In a new 
 state of circumstances it is more important to reproduce prin- 
 ciples than laws. New laws are often required to embody old 
 principles. For a summary of the principles of the Church of 
 England relating to Colonial and Missionary Churches, we would 
 earnestly commend to our readers the study of the Reports of 
 the Lambeth Conferences. Those Reports do not lay down 
 laws which we are bound to follow — but they are entitled to 
 great respect and moral weight, considering that they proceed
 
 from the united counsel and judgment of the whole Anglican 
 Episcopate. If Mr. Cooper had been better acquainted with 
 them, we think he would have passed a more favourable, or at 
 least a more lenient judgment on the South African Church 
 than he has done. His arrival from England has been so recent 
 that he has not had time to form from personal experience any 
 idea of the necessities of Church government in a count'-y where 
 there is no alliance between Church und State — he has not yet 
 shaken himself free from the notions of State control over the 
 Church which were natural to an average Englishman in 
 England ; his ready sympathies have been attracted in one 
 direction since his arrival ; and so he condemns as " a line of 
 action essentially innovating " that course of procedure which 
 through a varied experience of many years has approved itself 
 to a large majority of thoughtful Churchmen throughout the 
 Provincfe, and is in harmony with the wider judgment of the 
 Church expressed at Lambeth,
 
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