PUBLIC RECORD
OFFICE
C.O.
Reference :-
885
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
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PUBLIC RECORD OFFICE, LONDON
purpose of removing from them, both in substance and in form, everything which has the appearance of an assumption of any compulsory powers, or of any attempt to create tribunals similar to those which in countries where there is an established church exercise a legal and coercive jurisdiction. It should be expressly declared that the synod altogether disclaims the power of legislating so as to bind any persons who do not voluntarily assent to and agree to be bound by its rules, the terms "constitu- tions," "consistorial court," and the like should (we think) be disused, and the rule that all presbyters and deacons before institution or induction, or before receiving a "license from the bishop, and as a condition of receiving such institution, induction, " or license, shall sign a declaration that they will subscribe to all the rules and con- "stitutions enacted by the synod of the diocese of Cape Town" (Judgment, p. 8), and any other rules (if there are any) of a like nature ought, we think, to be rescinded,
In place of the resolutions as to the consistorial court deemed objectionable by the Judicial Committee, we think it would be competent to the synod to pass resolutions recommending for the adoption of their bishop suitable forms of proceeding (as in foro domestico) for the investigation, trial, and decision of offences against the laws of the church before the bishop himself, or before persons appointed by him upon principles similar to those which prevail for the necessary preservation of good order and discipline in all voluntary religious bodies; and we think that all persons who had assented to such resolutions would be bound by what the bishop from time to time might reasonably do in accordance with the forms so recommended. Upon this point we again refer to the words of the judgment:-"It may be further laid down "that where any religious or other lawful association has not only agreed on the "terms of its union, but has also constituted a tribunal to determine whether the rules "of the association have been violated by any of its members, or not, and what shall be the consequence of such violation: then the decision of such tribunal shall be binding when it has acted within the scope of its authority, has observed such forms as the rules require, if any forms be prescribed, and if not, has proceeded in a manner consonant with the principles of justice."
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"In such cases the tribunals so constituted are not in any sense courts, they derive "no authority from the Crown; they have no power of their own to enforce their "sentence, they must apply for that purpose to the courts established by law, and such courts will give effect to their decision, as they give effect to the decisions of arbi- "trators whose jurisdiction rest entirely upon the agreement of the parties."
We are next requested to consider in what respect the last Letters Patent, which the bishop accepted after his resignation and by virtue of which his present see was con- stituted, are valid, and what rights they confer on him as bishop of the diocese and metropolitan of the province.
We are of opinion that the judgment of the Judicial Committee has decided that these Letters Patent, in so far as they purported to confer upon him any power of coercive jurisdiction, irrespectively of the sanction of the local legislature, and of the consent, express or implied, of those over whom it might be exercised were ultra vires and invalid. But we think that the bishop, as diocesan or metropolitan, may lawfully exercise jurisdiction (in the sense in which that word is used in voluntary religious communities)," in a manner consonant with the principles of justice (p. 14), over those "who have agreed, either expressly or by implication, to be subject to it."
In other respects we see no reason to doubt the validity of the Letters Patent. These observations apply to all bishops and metropolitans constituted under similar Letters Patent in Colonies which possess a legislature of their own.
Lastly, with respect to the metropolitan jurisdiction conferred by the Letters Patent on the Bishop of Montreal:-
& metro- We think that it was competent to the Crown to constitute his Lordship politan, and thereby to give him pre-eminence and precedence over his suffragans, but that as to the coercive jurisdiction which the metropolitan may exercise, and the manner in which it is to be exercised, these are matters which must be settled by the bishops, clergy, and laity of the church in a general assembly of the province, according to the provision of the local Act of the Canadian Legislature, 19 & 20 Vict.
c. 121.
His Grace the Duke of Newcastle,
•
&c.
&c.
&c.
We have, &c. (Signed)
ROUNDELL PALMER.
R. P. COLLIER. ROBERT PHILLIMORE.
820.
No. 229. (NATAL.)
LAW OFFICERS to COLONIAL OFFICE.
MY LORD DUKE,
Lincoln's Inn, January 29, 1864. We are honoured with your Grace's commands signified in Sir Frederic Rogers' letter of the 23rd January instant, stating that he was directed by your Grace to request that we would favour you with our opinion on the following question.
By Letters Patent dated the 15th July 1856 (of which a copy was annexed) the Governor of Natal was authorised and empowered to summon as an Executive Council such persons as should from time to time be named or designated by Her Majesty in any instructions under the Sign Manual and Signet addressed to him in that behalf.
That certain public officers (or the persons lawfully acting as such officers) have been so designated.
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That the governor was also by the same charter empowered with the advice and consent of the Legislative Council, which was to consist of 12 elective and four non- elective members, to make laws for the peace, order, and good government of the Colony.
Patent.
That power was reserved to Her Majesty to amend, alter, or revoke these Letters
That it has been hitherto assumed in the Colonial Department that by the issue of these Letters Patent Her Majesty did not part with her power of legislating by Order in Council though it has not been thought advisable to resort to that power without urgent necessity. That in the 55th and 56th pages of the accompanying volume would be found an opinion of Sir R. Bethell and Sir H. Keating which might have some bearing on the power of the Crown in this respect.
That it was thought desirable, for reasons stated in the annexed extract from a Despatch received from the Lieutenant-Governor (No. 104 of September 24, paragraph 5), that the lands required for the use of the natives in the Colony should be vested with full powers of alienation, managemont, &c. in the Lieutenant-Governor and Executive Council. But it is apprehended that land granted to this Council would under the existing law vest in the individuals composing it and not in the Council as a body.
That this inconvenience could of course be removed by local legislation. But to this there are objections, and your Grace was desirous of knowing, first, whether, in our opinion, Her Majesty by Her Letters Patent of 15th July 1856 abandoned the right of legislating by Order in Council for the Colony of Natal and next whether, and by what instrument, the Lieutenant-Governor and Executive Council could be constituted a corporate body for the purposes above described, with powers to hold and deal with lands and with the capacity of suing and being sued.
Sir Frederic Rogers was also pleased to add that your Grace would be glad, if pos- sible, to receive an answer to this question before the end of the month, so that you might communicate your decision to the Governor by the mail of the 5th proximo.
In obedience to your Grace's commands we have taken this matter into considera- tion, and have the honour to
Report
That, although Her Majesty has reserved to herself the power of amending, altering, or revoking the Letters Patent of the 15th July 1856, we think that as long as the constitution thereby granted remains in force legislation for the Colony of Natal by Order in Council would scarcely be consistent with the general principles of law settled in the case of Campbell v. Hall (Cowper's Reports, p. 204). But we are of opinion that to constitute the Lieutenant-Governor and the members of the Executive Council for the time being a corporation for the purposes described would not be an act of legislation, and we think that the proper way of effecting this will bo by Royal Chan or Letters Patent and not by Order in Council.
We conceive this view to be consistent with that taken by Sir R. Bethell and Sir H. Keating in their report of the 9th July 1857.
We have, &c.
His Grace the Duke of Newcastle, K.G.,
&c.
&c.
&c.
o 16278.-GI.
25-2/86.
(Signed)
ROUNDELL PALMER.
R. P. COLLIER.