PUBLIC RECORD OFFICE
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PUBLIC RECORD OFFICE, LONDON
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I cannot close my report to your Lordship without venturing to suggest the ex- pediency of incorporating this important joint resolution of the two Governments of Her Majesty and the United States in formal articles of a treaty subsidiary to the These passports will Treaty for the suppression of the African Slave Trade. materially modify, and in fact override, the stipulations contained in Article VI. of this treaty, and it does not seem to me quite convenient or proper that the express legislation (so to speak) of a treaty should be partially abrogated by a less formal instrument than that which originally rendered it binding.
Earl Russell.
I humbly, &c.
(Signed) ROBERT PHILLIMORE.
9632.
No. 138.
(NEW SOUTH WALES.)
LAW OFFICERS to COLONIAL OFFICE.
Temple, September 29, 1862. MY LORD DUKE,
We are honoured with your Grace's commands, signified in Sir Frederic Rogers' letter of the 15th August 1862, stating that he was directed by your Grace to request that we would take into our consideration the annexed draft of certain Letters Patent by which it is proposed to create the Bishopric of Goulburn, in New South Wales, and to appoint the first Bishop, whose name will in due time be submitted to the Crown.
And he was pleased to annex also copies,--
1st. Of a Parliamentary Paper containing a copy of the instrument appointing Parlia Dr. Broughton to be Bishop of Sydney, and fixing the limits of that diocese from which mentary the proposed diocese of Goulburn is to be severed.
2ndly. Of the instrument appointing Dr. Barker to be Bishop of Sydney on the death of Dr. Broughton.
And 3rdly. Of the instrument which detached the diocese of Brisbane from that of Newcastle, which instrument has furnished a precedent for that now submitted to
118.
Sir Frederic Rogers also stated that for convenience of reference the additions and alterations were underlined in red ink, and that the only two causes of alteration which required to be noticed were the following:
First, the consent of the Archbishop of Canterbury and of the Bishop of Sydney is requisite to the proposed alteration in the limits of Sydney. That on the appointment of the Bishop of Brisbane this consent was given by letter, and recited generally in the Letters Patent; but that, in the late Queen's Advocate's report of the 18th. November 1861*, relating to the proposed erection of the Canadian Bishopric of Ontario, he expressed the opinion that this consent ought to be given by deed, of which he supplied a draft instrument of consent for the execution of the Archbishop.
Sir Frederic Rogers was also pleased to annex a copy of that draft, and also to annex the drafts of forms of consent, which, if we should approve them, your Grace will request the Archbishop of Canterbury and the Bishop of Sydney to execute on the present occasion.
He also stated that in the draft Letters Patent it had, of course, been necessary to alter the recitals so as to adapt them to the altered form of proceedings, and that this was the first cause of the alterations to which he had alluded.
And that the second cause of alteration arose from a question of far greater difficulty.
174-1850.
He was also pleased to annex copies of a correspondence between the Governor of New South Wales and your Grace, by which we should perceive that the Supreme Court of New South Wales had authoritatively declared that Letters Patent drawn in the form now proposed, so far as they assume to confer ecclesiastical jurisdiction, are ultra vires, and have, therefore, been improvidently issued; and that we should perceive that this defect of jurisdiction is, in a great measure, if not entirely, supplied by a local Act (of which a copy was likewise annexed), which appears to give the Bishop of the & Will, 4. diocese the power of ejecting a clergyman from any church or chaplaincy held under the e. 15. 4. 20. New South Wales "Church Act"; and that we should further perceive that whether the judgment of the Supreme Court is correct or otherwise, it is highly desirable, in the opinion of your Grace, that the jurisdiction of the Bishop should rest on local enact- ments rather than on the Royal Prerogative (as is now the case in Canada); and, therefore, that your Grace is by no means inclined to incur the inconvenience of litigation in order to establish by a decision of the Privy Council the jurisdiction of the Bishops on a foundation from which in Colonies having responsible Government it should, in your Grace's opinion, be shifted as soon as possible.
And that under these circumstances the choice appears to lie between the following
courses --
1. To omit from the Letters Patent all grant of jurisdiction which would in effect rule against the Bishop of Goulburn, a matter which cannot be considered as exclusively determined by the judgment of the New South Wales Court, and is not unlikely to be brought under the notice of the Privy Council in connexion with a case which has occurred in the diocese of Capetown.
• No. 92.
0 15978.-767. 25-1/86.