1.
A. 1
4
I. As to the status of the clergy, by leaving the mass of existing legislation where it is, merely pro- viding that any ordination heretofore or hereafter conferred by any bishop deriving his consecration from English or Irish prelates, and recognized as their Diocesan Bishop by any body of persons professing the doctrine and discipline of the English Church in any of Her Majesty's Colonies, should be as effectual for the purpose of enabling the ordinee to officiate in England or elsewhere as if such bishop had had jurisdiction within the meaning of 59 Geo. III, c. 60, and had been resident within
such jurisdiction.
2. As to the present status of the bishops by giving validity (as above proposed) to their acts.
3. As to the future status of bishops-
(a.) By refusing (in conformity with the Judgment
of the Judicial Committee) to appoint a bishop in
any Colony possessing an independent legislature, without sanction of that legislature.
(b.) By adopting and promulgating the opinion of the present Law Officers that Colonial Bishops may exercise the power of consecration without Royal sanction.
(c.) By announcing that Her Majesty will be advised, on the application of the Archbishop of Canterbury, to issue from time to time such mandate as is required by law, to authorize the consecration of a bishop for ministration in the Colony, but without assuming to assign a diocese or sphere of action.
4. And by informing the Colonial Episcopate, that having these facilities for continuing their succession, they will be left to secure the position of their successors in respect to endowments or otherwise by such voluntary agreement or local legislation as they may find necessary and practi- cable.
February 9, 1867.
F. R.
EXTRACT from OPINION of the LAW OFFICERS on the COLONIAL EPISCOPATE, dated Lincoln's Inn, January 31, 1867.
1. IN a Colony in which an independent legislation is established, but in which no Imperial or local legislation has authorized the creation of a diocese, can the Crown create a diocese, and appoint a Diocesan Bishop whose diocesan status, rights or authority, the Courts of the Colony, or of the United Kingdom, in any suit or action which may be brought before them, will be bound to recognize?
2. How is an affirmative answer to this question to be reconciled to the Judgment of
the Judicial Committee, or a negative answer with that of Lord Romilly?
3. When the Crown has created such a diocese, and appointed such a Bishop, are
acts done by or in relation to him in such diocesan capacity, liable to be questioned in a Court of Law, on the ground that he is not really a Diocesan Bishop?
4. Do the Bishops of these Dioceses possess jurisdiction in such sense that clergy ordained by them do not incur the disabilities imposed by the clause 59 George III, cup. GO?
7. Can Her Majesty continue the creation and division of dioceses, and the appoint- ments of Bishops to such dioceses in Colonies possessing independent legislatures, without risk of affecting to confer status and authority which will not be in fact acknowledged by a Court of Justice?
Lastly, that whatever may be our opinion on these points, Sir Frederic Rogers was to request our opinion whether the law is sufficiently clear to preclude the necessity of legislation for at least the following objects:-
1. Removing doubts respecting the validity of acts done by or in relation to the Bishops of reputed dioceses established by the Crown in Colonies possessing independent legislatures.
2. Enabling priests and deacons ordained by Colonial Bishops not having legal juris- diction, to officiate in the United Kingdom under proper restrictions,-probably those now imposed on the clergy of the Scottish Episcopate by 26 and 27 Vict., cap. 94.
3. Giving to all acts heretofore done by or in relation to clergy ordained by Colonial Bishops not possessing legal jurisdiction, the same validity as if such Bishop had possessed legal jurisdiction.
REPORT.
That in answer to the first question submitted to us, we have the honour to report our opinion in the negative.
2. We think an affirmative answer to the first question could not have been recon- ciled with the Judgment of the Judicial Committee; and that the negative answer we have given cannot be reconciled with that of Lord Romilly. In using the word “Judg- inent" we refer to the whole exposition of the law in the respective Judgments. The material point decided in the Privy Council is in conformity with our opinion on the first question; the only point which it was necessary for the Master of the Rolls to decide, is not in conflict with the Judgment of the Privy Council.
The obiter dicta of the Master of the Rolls are in conflict with the point decided by the Privy Council. The explanation given by the Master of the Rolls of the Judginent of the Judicial Committee of the Privy Council, of which he was only a single member, cannot be accepted as an authoritative exposition of that Judgment.
PUBLIC RECORD OFFICE
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