CAPE OF
GOOD HOPE.
14
No. 11.
CORRESPONDENCE RELATIVE TO
CAPE OF GOOD HOPE.
COLONIAL BISHOPRICS.
No. 12.
15
CAPE OF
GOOD HOPE
No. 12.
PUBLIC RECORD OFFICE
Reference
TTC.O.885
No. 11.
Copy of a DESPATCH from Governor Sir P. E. WODEHOUSE, K.C.B., to the Right Hon, EDWARD Cardwell, M.P. (No. 67.)
Government House, Cape Town, July 27, 1865.
(Received, September 4, 1865.) (Answered, Separate, November 2, 1865, pago
SIR,
I HAVE had the honour of receiving your Circular Despatch of the 21st April last, acquainting me that Her Majesty's Government have under their consideration the judgment lately given by the Judicial Committee of the Privy Council in the case of the Bishop of Natal; and as it is probable that some time will yet elapse before any ation is taken in the matter, I hope I may be allowed to invite your attention to one striking peculiarity in the case of these South African dioceses, which does not appear to have been substantially noticed in the past proceedings, but which may be of much importance in deciding upon the course that ought now to be taken.
t
The view which I would place before you has immediate connexion, first, with that passage in the judgment which says, "We therefore arrive at the conclusion that although in & Crown Colony, properly so called, or in cases where the Letters Patent are made in pursuance of the authority of an Act of Parliament (such, for example, as the Act "6 and 7 Vict. cap. 13), a bishopric may be constituted and ecclesiastical jurisdiction "conferred by the sole authority of the Crown;" and secondly, with the opinion given by the Law Officers of the Crown, to your predecessor in office, on the 28th of July 1854, to the effect that by granting a constitution and local legislature to a colony, the Crown deprives itself of the authority to amend or alter by Letters Patcut laws or institutions brought into existence by previous Letters Patent.
A representative form of government was first brought into existence in the Colony of the Cape of Good Hope under the authority of Letters Patent of the 23rd of May 1850; and the same was first effected in Natal by Letters Patent of the 15th of July 1856. Until the issue of those instruments, both were Crown colonies.
On the 25th of September 1847, the Crown issued Letters Patent creating the diocese of Cape Town, which was declared to include what now composes the several dioceses of Cape Town, Graham's Town, Natal, and St. Helena.
On the 23rd of May 1850, the Crown declared by Letters Patent that there should be a parliament for the Colony of the Cape.
On the 23rd of November 1853, the Bishop of Cape Town, in the exercise of a power conferred upon him by the Letters Patent, resigned his bishopric; and on the following day the Archbishop of Canterbury accepted the resignation, and declared the bishopric void of the person of Robert Gray.
On the strength of this resignation, Letters Patent were issued creating the several existing dioceses of Cape Town, Graham's Town, Natal, and St. Helena, and the Metropolitan Jurisdiction of Cape Town over the other three.
Viewing these transactions by the light of the late judgment and of the opinion given by the Law Officers in 1854, I am inclined to think,—
First, that the original diocese was lawfully created in the Crown colonies by the Letters Patent of 1847:
Second, that when the Parliament was established at the Cape, the Letters Patent for the creation of the diocese were a component part of the law of the country, and so remained:
Third, that the resignation by the Bishop of Cape Town, in 1853, of that bishopric was purely personal, and placed it in the power of the Crown to appoint a successor :
Fourth, that the Letters Patent of 1847 have never been lawfully altered, and that the original diocese still exists, comprehending all the intended subdivisions:
Fifth, that if that be the case, none of the existing bishops are bishops of actual
dioceses.
The Right Hon. Edward Cardwell, M.P.
&c.
. &c.
&c.
I have, &c.
(Signed) P. E. WODEHOUSE.
Cory of a DESPATCH from the Right Hon. EDWARD CARDWELL, M.P., to Governor Sir P. E. WODEHOUSE, K.C.B.
(Separate.)
Downing Street, November 2, 1865.
SIR,
I HAVE received your Despatch, No. 67, of the 27th of July last, in which, with Page 14. reference to the judgment recently given by the Judicial Committee of the Privy Council in the case of the Bishop of Natal, you suggest certain questions with regard to the position of the original diocese of Cape Town, and of those which were subsequently separated from it.
I am advised that the Act of the Cape Parliament No. 30 of 1866, can scarcely be regarded otherwise than as a legislative recognition of the two dioceses of Cape Town and Graham's Town, and that even if the original diocese of Cape Town were regarded us still having an existence in the strict theory of the law in the Cape Colony and in Natal, it is and must remain practically in abeyance unless and until another bishop shall have been appointed thereto by the Crown.
Governor Sir P. E. Wodehouse, K.C.B.
&c.
&c.
&c.
No. 13.
·
I have, &c. (Signed) E. CARDWELL.
2
COPY of a DESPATCH from the Right Hon. EDWARD CARDWELL, M.P., to Governor Sir P. E. WODEHOUSE, K.C.B. (Confidential.)
SIR,
Downing Street, 2nd November 1865. Wiru reference to my Despatch (" Separate") of this day's date, I transmit to you, confidentially, for your further information on the points raised in your Despatch, No. 67,
}
No. 13.
Page 14.
of the 27th July last, a copy of the report of the Law Officers of the Crown to which 23rd Oct. 1835.
I have referred in my public Despatch.
Governor Sir P. E. Wodehouse, K.C.B.
&c.
&c.
SIR,
&c.
I have, &c.
(Signed) EDWARD CARDWELL.
Lincoln's Inn, October 23rd, 1865.
We are honoured with your commands, signified in Sir Frederic Rogers' letter of the 28th of September ultimo, stating that he was directed by you, Sir, to transmit to
us the enclosed copy of a Despatch from the Governor of the Cape of Good Hope on No. 67.
the subject of the judgment of the Judicial Committee of Privy Council in the case of the Page
27th July 1865. Bishop of Natal v. The Bishop of Cape Town.
Sir Frederic Rogers was also pleased to state that in this Despatch Sir P. Wodehouse arrives at the conclusion that the Letters Patent of 1847, constituting the diocese of Cape Town, including the dioceses of Graham's Town, Natal, and Saint Helena, are still in force, having never been lawfully altered, and consequently that the four present so called dioceses are not actual dioceses.
Sir Frederic Rogers was also pleased to enclose copies of two opinions of the Law Officers 28th July 1865, of the Crown, one dated 28th July 1854, which is that referred to by Sir P. Wodehouse, and Enclosure 2. the other dated 11th March 1863, as to the power of the Crown after the grant of the 14th Mar. 1863. present constitution to the Cape of Good Hope to alter Letters Patent, viz., the Charter Enclosure 3. of Justice, issued before the grant of that constitution, and to request that, having respect
to these opinions and to the state of the case as represented by Sir P. Wodehouse, we would favour you with our opinion upon the five positions taken by Sir P. Wodehouse at Frinted copy, the close of his Despatch.
Sir Frederic Rogers was pleased to annex a copy of the judgment in the case of Enclosure, Bishop of Natal v. Bishop of Cape Town.
Also of extracts from the Letters Patent of 1847, and the subsequent Cape Town Graham Town Letters Patent of 1853.
20th Mar. 1863.
C-pe 1847.
and Cape 1839.
Enclosure 5.
Enclosure . Grabant's
Town 1833.
Enclosure 7. Local Act,
Also of an Act of the Legislature of the Cape of Good Hope, No. 30 of 1860, in which the dioceses of Cape Town and Graham's Town are mentioned by name.
Also of a printed paper which contains (pages 3 and 4) a statement respecting the No. 30, ce legal position of the Colony of Natal in 1853.
Enclosure S.
Sir Frederic Rogers added that Saint Helena is undoubtedly a crown colony, which Frinted Memes.
Enclosure
B 4
19th May 18,
J
3 PUBLIC RECORD OFFICE, LONDON
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