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duly ordained and consecrated, and shortly afterwards proceeded to Natal, and took possession of his bishopric. In the making of this appointment it was formally provided that the bishopric of Natal was to be under the metropolitan supervision of the Bishop of Cape Town, and that Dr. Colenso, as Bishop of Natal, was to take oath to obey the Bishop of Cape Town as his Metropolitan. From the month of November, 1853, until the month of April, 1864, the treasurers of the Council for Colonial Bishoprics duly paid Dr. Colenso his salary (6621.) as Bishop of Natal; but since the latter period they refused to continue payment of such salary, baving received a notification from the Bishop of Cape Town that he had, on account of certain heretical doctrines, deprived Dr. Colenso of his post as Bishop of Natal; and Dr. Colenso's salary had ever since been withheld by the council, and carried to a separate account. In the month of March, 1865, Dr. Colenso having appealed to the Crown against the decision of the Bishop of Cape Town, and brought the matter before the Judicial Committee of the Privy Council, that Court decided in favour of Dr. Colenso and against the Bishop of Cape Town, whose decree of deprivation, as against Dr. Colenso as Bishop of Natal, the Privy Council declared to be null and void. On obtaining this decree of the Privy Council in his favour, Dr. Colenso, as Bishop of Natal, applied to the treasurers of the Colonial Bishoprics Fund for the payment of his salary, which had been withheld; but the treasurers of such fund refused to make such payment, alleging that, according to the decision of the Privy Council, Dr. Colenso was not such a Bishop as the subscribers to the Colonial Bishoprics Fund intended to endow; that, according to such decision, the letters patent had no right to create him such a Bishop; that the Bishop of Natal, according to the decision of the Privy Council, had no such pastoral care over his clergy, and was under no such supervision of his metropolitan as the Colonial Bishoprics Council contemplated and intended that he and their other colonial Bishops should be. Upon the treasurers of the Colonial Fund persisting in their refusal to pay Dr. Colenso his salary or to recognize his claim as Bishop of Natal, Dr. Colenso had instituted the present proceedings against them; and the issue which this Court had to decide was whether or not they were bound to pay him. In deciding this issue the Court was not called upon to pronounce any opinion as to the nature or character of Dr. Colenso's doctrines, or whether or not some of his works might be heretical or otherwise ; all that the Court was called upon to pronounce an opinion on, was the force of the letters patent under which Dr. Colenso was appointed. What the letters patent had done was, to appoint Dr. Colenso Bishop of Natal, and to desire the Archbishop of Canterbury to ordain him as such. The Archbishop had so ordained him, and Dr. Colenso was a duly appointed titular Bishop. By such appointment Dr. Coleneo had full episcopal powers over his clergy and flock, subject to the restriction that such power could only be enforced by resort to the civil tribunals. The Bishop of Natal had, in fact, much the same power over his clergy in Natal as an English bishop had over his clergy in England, the main difference being, that the Bishop of Natal's order must be entirely resisted, according to the civil tribunals, with power to appeal to the Queen in Council. Dr. Colenso was created a titular Bishop all the world over, and a territorial Bishop within the province of Natal. The law, as laid down by the Privy Council in these cases, instead of uprooting the colonial Churches, as branches of the Church of England, would do much to establish them. The Privy Council had laid it down as a rule that the Church of England in our colonies was a voluntary association, or, in other words, that, where there was no State religion in a colony, a few members
associating themselves together, and agreeing to be governed by the law and doctrine of the Church of England, should be recognized by the parent Church as a branch or branches of such Church. This was made apparent by the decision of the Privy Council in the case of “Colenso v. the Bishop of Cape Town,” in which it was held that the Colonial Synod had decided matters which could never be decided by the State, and that a colonial Bishop's authority was merely by consent over such persons within his alleged jurisdiction as agreed to be bound by it. What the Privy Council has decided in the case of “The Bishop of Cape Town v. Colenso was, that the Crown had no power to create a Bishop or bishopric in a colony with coercive powers over the people of a colony having an independent Legislature. But it has not decided that the Bishop of Cape Town has any jurisdiction over the Bishop of Natal. The effect of the judgment of the Privy Council was to show_first, that Natal was a district presided over by a Bishop of the Church of England, and that the members of the Church of England in Natal were members and part of the Church of England ; and, secondly, that the letters patent did not, and could not, create a new order of Bishop in the colony, but that all such appointments must be made by the head of the Church, as settled by the law of England, according to which no Bishop of the Church could be appointed in a colony by the Crown, as head of the Church. All the laws which had been passed by Parliament since the time of the Act of American Independence tended to prove that such was the law of this country and the intention of the Legislature. As to the objections raised by the defendants as treasurers of the Colonial Bishoprics Fund, to pay Dr. Colenso his salary as Bishop of Natal, because the bishopric was not established with such ecclesiastical coercive powers as the subscribers to the fund contemplated, this Court was of opinion that such a plea could not prevail,-first, because the letters patent creating the See of Natal could not possibly grant such coercive powers ; and, secondly, because there was nothing in the letters patent to lead the sub'scribers to the fund to believe that any such powers were intended to be granted; but the Court was desirous to speak with deference of any opinion expressed by the dissentient subscribers to the fund in question, more particularly when enunciated by a lady like Miss Burdett Coutts, who had been so constant and ceaseless a contributor in establishing colonial bishoprics; but upon all the facts before the Court, it could not but think that such subscribers were mistaken in supposing that the Crown had not, by the letters patent in question, conferred upon the Bishop of Natal full pastoral powers to exercise in his office of Colonial Bishop. The principle of the Church was, that in all cases the Crown should be recognized as the paramount head of the Church ; and no letters patent could be issued or could stand that would place any of the colonial Churches merely under the Forum Domesticum of the Archbishop of Canterbury. The appointment of Dr. Colenso as Bishop of Natal might be looked upon as an agreement between the Crown, the representatives of the Bishoprics Fund, and Dr. Colenso; and so long as Dr. Colenso performed his part of the contract, and there was nothing before the Court to show that he had not done so,-he was entitled to the benefits of it. In the case of Dr. Colenso ceasing to be Bishop of Natal, and a new prelate being appointed in his place, new stipulations might, of course, be introduced ; but, so far as Dr. Colenso was concerned, the present contract must be held as binding, and, whatever the opinion of the subscribers to the fund might be, it could not deprive Dr. Colenso of the right to be paid his salary. If Dr. Colenso had not performed his part of the contract, or if he had wilfully done any wrong act to disentitle him to payment under it, the case might have been different; but there was no case before the Court to show that he had not done the one, or that he had done the other; and therefore the Court was bound to hold him entitled to the relief he prayed. The decree of the Court would be, that Dr. Colenso was entitled to the relief asked for by the prayer of his bill, and that the defendants must pay the costs of the suit. In making this award as to costs, the Court did not wish to imply that the defendants could have acted otherwise than they had done as treasurers of the fund of which they were the representatives, or that they ought not to be indemnified, as to their costs, out of such fund. Dr. Colenso would, of course, have to pay the Attorney-General his costs, which, however, he could add to his own costs, and claim them against the defendants.
DR. HUNTER'S CASE.
CHARGE OF LIBEL AGAINST THE “ PALL MALL GAZETTE."
In the Court of Queen's Bench was brought on the case of Hunter v. Sharpe, namely, an action against the printer of the “ Pall Mall Gazette" for a libel published therein on the 10th of November, 1865.
Mr. Coleridge, for the plaintiff (Dr. Robert Hunter), said the plaintiff was son of Dr. James Hunter, an English physician, who brought up his three sons to the medical profession ; and on emigrating to Canada he sent plaintiff to the medical school there, after which plaintiff studied in the New York University and obtained an M.D. degree. Subsequently he practised extensively in New York; and his health being delicate, he studied his own symptoms, and resolved to make pulmonary diseases his speciality, and adopted the practice of inhalation, which eminent medical men had previously recommended, but which had not till then been systematically carried out. He had such a large practice that four medical men, each holding an English degree, had been engaged to assist him. In 1858 he came to England. He published a book setting forth his qualifications, and he also published advertisements, giving extracts from his work in the shape of letters. In 1855 a Mrs. Merrick accused him of having ravished her, and pending the investigation of that charge the libel now complained of appeared. It was headed “Impostors and Dupes," and it said, “one of the evils which are a curse to English society was the advertising practices of a certain class of medical impostors," and, referring to plaintiff as one of these, the article said, " the Merrick-Hunter story is a fresh illustration of the state of the law in the matter of these abominable advertisements.”
The plaintiff deposed to the facts above stated.-In cross-examination he said his advertisements had cost him about 10001.
Several witnesses were called for the plaintiff.
Dr. J. Pattison, M.D., of New York University, and a registered practitioner in London, deposed that he had seen plaintiff's diploma.
Dr. Henry Melville (Edinburgh degree) and Dr. J.J. Macgregor (M.D., Edinburgh), now practising in Dublin, respectively deposed to having been acquainted with plaintiff's medical system and practice, and to his applications of inhalation to cases of consumption, &c., having been most beneficial. That system had
been previously adopted by medical authorities, but plaintiff had carried out the system more effectively than had been done previously.
Mr. Robert Curtice, of 86, Bond-street, manager of Messrs. Corbyn's drug establishment, deposed that he supplied drugs to plaintiff, who in the first year paid 8001. for drugs.
Mr. Edward Morensey, of Uxbridge, and Major Hughes, formerly of the Bengal Army, respectively deposed to having consulted plaintiff for asthma, bronchitis, &c., and to finding great benefit from his treatment.
Mr. Fres deposed that he had spasmodic asthma, and on seeing plaintiffs published letters he consulted plaintiff, whose inhalation system had so much effect that witness was in a month declared off the doctor's books. Plaintiff gave him so much medicine that, with economy, it lasted three months, and only cost at the rate of 8s. 9d. a week.
Mr. Calcraft, of Toronto, barrister, and several other witnesses deposed to a similar effect.
This closed the plaintiff's case.
Evidence was then given for the defence. The advertisements published by plaintiff in several London newspapers having been read, Dr. C. J. Williams, Fellow of the Royal College of Physicians, and consulting physician of the Brompton Hospital, said he had practised in London for thirty-five years, and he paid much attention to diseases of the lungs. He had read Dr. Hunter's work, which stated that “the root of consumption was in the lungs, and that tubercles were but the fruits of imperfect respiration.” Witness considered that doctrine to be wholly opposite to truth. The witness then pointed out at length the erroneous doctrines professed by plaintiff. In cross-examination, witness said he did not agree in plaintiff's opinion as to the inefficiency of cod-liver oil in consumption. He was aware that Dr. M'Cormack held that all the cod. fish in the mighty ocean could not delay for a single instant tubercular decay, but that opinion should only be taken valeat quantum. On re-examination, the witness said that Dr. Jas. Clark was somewhat incredulous as to the value of medicine at all.
Dr. Bennett, physician to the London Hospital, and to the Hospital for Diseases of the Chest
, and Dr. Cotton, physician to the Brompton Hospital, also expressed opinions adverse to the doctrines laid down in the plaintiff's work.
Further evidence was given for the defence by Dr. Markham, Fellow of the Royal College of Physicians ; Dr. George Johnson, M.D., University of London ; Dr. Richard Quain, M.D., of London University; and Dr. Hodgkins, M.D., a lecturer on chemistry at St. Bartholomew's Hospital, who deposed to opinions similar to those expressed by the other medical witnesses for the defence.
Mr. Karslake, Q.C., for the defence, then reviewed the evidence on both sides, and asked, Could any one read plaintiff's work without feeling that its object was to inculcate the opinion that he and his assistants possessed the great secret for the cure of consumption, and that if he and his assistants were, by a railway accident or otherwise, removed from the world, the great secret of curing consumption would be irrevocably lost ? It was no wonder that in one year he pur. chased 8001. worth of drugs, to be made up into 86001. worth of prescribed medicines. The learned gentleman concluded by saying, if the plaintiff had sought by a system of terrorism and misrepresentation to practise on the credulous and ignorant, then they could come but to one conclusion, namely, that bis conduct had been characterized in language which was not too strong, and that the writer had well discharged a duty which he owed to society.
Mr. Coleridge, Q.C., in reply on behalf of the plaintiff, vindicated him from the allegation that he was a medical quack, and said that the libel complained of was beyond the bounds of fair criticism. The learned gentleman concluded an eloquent address by saying he trusted the verdict of the jury would enable Dr. Hunter, if he left England, to say that he came to this country with theory, and set himself against great authorities, provoking thereby a certain amount of prejudice ; but that when he complained of being assaulted with insi. nuations the most brutal, in language the most cruel-not in a low journal, but in a paper well written and ably conducted-English gentlemen flung aside their prepossessions, and did him justice.
The Lord Chief Justice summed up the evidence at considerable length. That this was an important case there could be no doubt; it was important to the plaintiff unquestionably, because upon their verdict would depend his professional position, his fortune, success, and, what was of more importance, his personal character in society; for if he was convicted of being an impostor, his personal character would be irretrievably ruined. The case was also of importance, because it involved more or less the principle by which the conduct of a public writer, and his responsibility for what he wrote was concerned. It was also important because incidentally they might have to consider how far the character and dignity of an honourable profession might be sullied and tarnished by recourse being had to a course of puffing by advertising to which the plaintiff had thought fit to resort. There were one or two preliminary matters which might as well be disposed of before they came to the real matter in issue. In the first place, there could be no doubt that unless it could be justified on the score of its truth, or excused as privileged, the article was libellous. To say that a man was an impostor—that he first frightened people into becoming his patients, and then treated them by pretended remedies, and that he did all this for the sordid purpose of putting money into his pocket, was unquestionably matter of a very serious and libellous character. Again, there could be no doubt but that the article was directed against the plaintiff. He was named by name, the unfortunate circumstance of a charge having been brought against him by Mrs. Merrick in the police court was referred to, his double diploma was remarked upon, and no reasonable man could doubt that the plaintiff was the person to whom the article intended to refer. Indeed, no attempt had been made on the part of the defendant to disguise that fact from the jury. Lastly, the defendant was unquestionably liable to this action; he was the printer and the publisher of the newspaper in which the article appeared, and as such was responsible, whether the alleged libel was written by himself or by others. It was when they came to the pleas put upon the record by the defendant that they came to the real contest between the parties. The defence was rested upon two grounds. In the first place, the defendant said, “ What I have written and published is true ; and as by the law of England truth is not libellous, I am justified in writing the article complained of.” In the second place, he said—and it was a matter well worthy of their consideration—“Even if I should fail in making out to the necessary extent the plea of justification-in other words the truth of the libel-nevertheless I say that, looking at all the circumstances of the case, I, having exercised all needful caution in the matter, having exercised my judgment to the best of my ability in discussing a subject concerning the public, was justified in writing the article in question.” He would proceed to deal with those questions in the order in which he had referred to them. In the first case came the question whether the defendant had established his plea of justification,