687.
PUBLIC RECORD OFFICE
c.o.
Reference :-
885
ALLY, WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH--NOT TO
10 PUBLIC RECORD OFFICE, LONDON
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No. 228.
(CAPE OF GOOD HOPE.)
LAW OFFICERS to COLONIAL OFFICE.
Lincoln's Inn, January 23, 1864.
MY LORD DUKE,
We are honoured with your Grace's commands, signified in Sir Frederic Rogers' letter of the 29th ultimo, stating that he was directed by your Grace to request that we would take into consideration the accompanying documents and furnish your Grace with our opinion on certain questions arising out of them. That we should collect from your Grace's Despatch of the 5th of June, of which Sir Frederic No. 485, enclosed a copy, that the Bishop of Capetown convened an assembly of clergy and 6 June, 1862. laity of his diocese under the title of the Synod of the Diocese of Capetown; that this assembly as at present constituted forms, in your Grace's opinion, a fair virtual representation of the Church of England in that diocese; and that if its constitution and proceedings had been strictly legal he would have been prepared to direct the Governor of the Colony to place at its disposal certain funds which are at present voted by the Colonial Legislature for the support of the Church of England. Those funds form part of an annual vote which is divided in certain proportions between the chief religious communities which exist in the Colony. That we should also perceive that the Lords of the Judicial Committee of the Privy Council, in the course of a judgment delivered on the 24th of June last in the case of Long v. the Bishop of Cape Town (of which Sir Frederic also enclosed a copy), declared (p. 16) not only that the assembly above described was not a synod in the legal sense of the word, but that certain of its acts were illegal.
That on this the Governor of the Colony was instructed by your Grace not to No. 664, recognise that body "as possessing in the Colony the powers (if any) which legally 13 July, "attach to a provincial or diocesan synod in England, nor to take any official 1888.
cognizance of the acts, either of the assembly itself or of any body emanating
14
"from it, until steps shall have been taken to clear it from the imputation of illegality "which at present attaches to it," or rather, it should have been said, "to some of its
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proceedings." That the bishop states in reply that the opinion of the Judicial Oct. 16, 1863. Committee upon which your Grace's Despatch was founded is an extraordinary inaccuracy, and he alleges that the synod had only exercised the power conceded by the Judicial Committee to all religious persuasions (p. 14), of "adopting rules for enforcing discipline within their own body, which will be binding on those who expressly or by implication have assented to them." That your Grace has no copy of the proceedings of the synod, and therefore cannot judge of the correctness of this allegation; but that your Grace observes the bishop treats the rules framed by the synod as extending to all who "wish to be members of the religious association" with which the synod is, in his view, identified, that is to all members of the Church of England, and that it is not to be doubted that on this supposition they will be extended to all persons who have not assented to them.
That
your Grace is very desirous of aiding the members of the Church or of any other communion in the Cape or any other Colony to place their internal constitution on such a footing as they or those who are fairly entitled to represent their feelings think most advantageous to themselves, and your Grace therefore wished to give the bishop any information that may enable him to give the synod a position on which it may with propriety be recognised by the Government.
That this was the first object to which Sir Frederic had to draw our attention, and to request an answer to the following questions:-
1. In the absence of any express legislative authority, is it lawful for the Bishop of Capetown, or for any other metropolitan 'or diocesan bishop in the Colonies, with or without the consent of the Crown, to summon a meeting of clergy and laity in communion with the Church of England under the designation of provincial or diocosan synods, or under any other designation, for the purpose of deliberating respecting matters affecting the welfare of the province or diocese, and of passing rules or resolutions binding on such members of their communion as may expressly or by implication acknowledge the authority of such a synod?
2. Can the Bishop of Capetown, in the absence of any such express legislative authority, lawfully give effect to a resolution of the synod directing that no person shall be admitted to any religious office or cure of souls in his diocese unless such person
• 16278.-60. 95.-9/66.