1130.
PUBLIC RECORD OFFICE
Reference :-
C.O. 885
11 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
No. 454.
(GENERAL)
LAW OFFICERS to COLONIAL OFFICE.
MY LORD,
Lincoln's Inn, January 31, 1867. We are honoured with your Lordship's commands, signified in Sir Frederic Rogers' letter of the 2nd instant, on the subject of Colonial bishops, their appointment, status, &c., and the rights and powers of the Crown respecting them. Sir Frederic Rogers stated that he was directed by your Lordship to request that we would furnish your Lordship with our opinion on certain questions raised by the following papers, which he enclosed, viz. :--
1. Judgment of the Judicial Committee in the case of the Bishop of Natal.
2. Judgment of the Master of the Rolls in the case of Colenso v. Gladstone.
3. Petition from the bishops of New Zealand and minute of Executive Council
respecting the ecclesiastical status of the bishops.
4. Letter from Bishop of Sydney on the same subject with enclosures.
5. Letter from Bishop of Melbourne on the same subject with enclosures.
6. Act passed by the Legislature of New South Wales respecting property of the
Church of England in New South Wales.
7. Copy of a Bill introduced into Parliament by your Lordship's predecessor.
Sir Frederic Rogers, after setting out very full extracts from the two judgments, viz., of the Privy Council and of the Master of the Rolls above mentioned, and making very valuable comments and observations upon them, stated that it rested with your Lordship to determine what legislation, if any, is called for by the existing state of things. But that your Lordship is embarrassed by the difficulty of ascertaining how the doctrines laid down by the Master of the Rolls are to be reconciled with the very explicit statements of the Judicial Committee, and our opinion was requested on the following points:-
1. In a Colony in which an independent legislature is established, but in which no Imperial or local legislation has authorised the location 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 recognise?
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?
such sense that
4. Do the bishops of these dioceses possess jurisdiction in clergy ordained by them do not incur the disabilities imposed by the clause of 59 Geo. 3. c. 60?
5. Will the New South Wales Act, forwarded to us, be effective for the purpose of regulating the possession and use of ecclesiastical property by the existing bishops or reputed bishops of New South Wales (in which Colony representative institutions were established prior to bishoprics), and by the clergy and laity adhering to them, and will it remain equally effective if by Act of the Crown, or by consent of the persons con- cerned, the dioceses are divided or altered?
6. Can Her Majesty be properly advised to assent to the petition of the New Zealand bishops which forms the 3rd enclosure to Sir Frederic's letter?
In connexion with this question Sir Frederic Rogers enclosed a copy of the Letters Patent purporting to constitute the bishopric of Tasmania, unobserved that the New Zealand Letters Patent are substantially in the same form.
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 :-
Q
16278,-152.
25.--5/86.