No. 13.
*44
Statutes were intended to remove appear to be rapidly becoming a matter of history.
The contrivance by which these happy results have been effected is the simple one of enabling those who wish to do so to form themselves into a corporate body for a specified object, with the power of holding property, of suing and being sued, and, within certain specified limits, of making bye-laws. It is by such a contrivance that the Church of England now seeks to escape from legal dangers and difficulties bearing no very remote analogy to those which used to obstruct the action of large com- mercial partnerships. And it is my hope that, in conceding what appears to me a very equitable demand, the Legislature of South Australia will establish a precedent of which, when it becomes understood, the other religious communions which exist in that Colony will avail themselves with the greatest advantage.
Such contrivances as the consensual compact of Adelaide, and (I say it with more diffidence) the trust-deeds of the Wesleyans, appear to me to call belong to a less advanced stage of legislation, in which what I may the legal machinery of association was ill understood. And I think it will be very unfortunate if any unfounded apprehension should prevent the South Australian Legislature from giving to the draft Bill of the Bishop that liberal consideration which is due to all bodies of British subjects who are associated for a beneficial object.
I have, &c.
Governor Sir D. Daly,
&c. &c. &c.
(Signed)
NEWCASTLE.
45
It would seem, therefore, that the course suggested in the case laid before the Law Officers of the Crown would require a slight alteration; and that Her Majesty on receiving from the electors of the Bishop the Petition described in the case or some equivalent document, should by Letters-Patent direct the Archbishop of Canterbury to issue his Com- mission to the Canadian Bishops authorizing them to proceed to the consecration of the Bishop elect. The issue of these Letters-Patent would involve or might express the Queen's approval of the election, which of course it would be competent to Her Majesty to withhold. Then would follow the consecration and the signification of the same to Her Majesty. I am aware that a matter of this importance cannot be treated by the ecclesiastical authorities of the Canadian Church in a hurried or per- functory way. I hope, however, that it will not be found to present any difficulty, and I will add that I am very desirous of disposing of the question as promptly as is compatible with its due consideration, I shall, therefore, be obliged to the Bishop of Montreal if he will submit it to the authorities of the Church as soon as their arrangements will admit.
Governor Viscount Monck, &c. &c. &c.
I have, &c. (Signed) NEWCASTLE.
Enclosure in No. 13.
(Separate.) MY LORD,
No. 13.
The Duke of NEWCASTLE to Governor Viscount MONCK.
Downing Street, April 12, 1862.
I HAVE recently had occasion to observe that much discussion and delay is liable to occur in the appointment and consecration of Canadian Bishops in communion with the Church of England, and on examining into the origin of these inconveniences, it appeared to me that they had their rise in an anomaly of which the removal was not only easy, but on grounds distinct from those of practical inconvenience, was called for by the present legal condition of the Canadian Church, to which the present form of appointment by the Crown appears totally inapplicable.
I therefore consulted the Law Officers of the Crown as to the expe- diency of replacing that form by one more analogous to the procedure adopted in England. I inclose copies of the case submitted to the Law Officers, of their answer, and of the instruments in use in this country when a Bishop is consecrated. And I would request you to submit these documents together with this despatch to the Bishop of Montreal, in order that he may consult with the ecclesiastical authorities of the Province, and with his and their legal advisers, and may then communicate to me any practical suggestion which they may desire to offer respecting the mode of giving effect to this proposal.
The correspondence will explain itself, but I think it necessary to add two observations: first, the form of Confirmation has never hitherto been used in respect to Colonial Bishops, and its introduction on the present occasion might not only be understood as casting some doubt upon the strict regularity of previous appointments, but, I am informed, might require an Act of Parliament. Merely viewed as an unnecessary form its reintroduction would, in my opinion, be unadvisable. I have therefore not suggested it. Secondly, it is understood that the form of Consecration provided in the Prayer Book, and therefore obligatory under the Act of Uniformity, renders necessary the intervention, in person or by his commis- sion, of the Archbishop of the province, ie, in this case of the Archbishop of Canterbury.
matter.
The LAW OFFICERS OF THE CROWN to the Duke of NEWCASTLE.
MY LORD DUKE,
Doctors' Commons, February 5, 1862. WE are honoured with your Grace's commands signified in Sir Frederic Rogers' letter of the 24th ultimo, in which he stated that the attention of your Grace has been recently drawn to the forms pursued in the appointment and consecration of Canadian Bishops, and that it appeared to your Grace that the changes which have lately taken place in the Ecclesiastical Law of that Colony demand that these forms should be considerably modified, and that your Grace therefore directed him to submit to us the following statement, and to request that we would give your Grace our opinion as to the course which ought to be pursued in this
Sir Frederic Rogers proceeded to state that we are aware that by the Canadian Act (19 and 20 Viet., cap. 21) it was provided that the Bishops, Clergy, and Laity of the United Church of England and Ireland in Canada might meet in Diocesan Synods or in General Assembly, and might in the assembly frame a constitution and regulations for the peace, order, and good government of the Church, and in Diocesan Synods frame regulations for the appointment, deposition, deprivation, and removal of any person bearing office in the Church, of whatever order and degree.
And he also stated that, since the date of that Act (a copy of which, and of an amending Act-22 Vict., cap. 139-subsequently passed, he was pleased to annex), various regulations (it is believed) have been made by the various dioceses of Canada, which, not requiring the approval of the Crown, have not been communicated to the Secretary of State.
And that two new Bishoprics have also been created, to which the Crown, by Letters-Patent, has appointed persons elected by the Clergy and Laity of the proposed diocese.
And that these Letters-Patent (it is believed) have been framed in general accordance with the forms hitherto in use. But that in a Report dated 13th August, 1857, having reference to the first of these Letters- Patent, the then Law Officers of the Crown observed as follows :-" The recent local Act of the Parliament of Canada, intituled 'An Act to enable the Members of the United Church of England and Ireland in Canada to meet in Synod,' having received Her Majesty's assent, confers on any General Assembly, convened within the province of Canada, power to frame a new ecclesiastical local Constitution for that province, which power, if exercised, will thereby supersede and abrogate the prerogative
N
Encl. in No. 13
L
PUBLIC RECORD OFFICE
b le b h
Reference -
C.O.885
3PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO