PUBLI
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ECORD OFFICE
19
Reference :-
C.O. 885
11 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH—NOT TO
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1. Removing doubts respecting the validity of acts done by or in relation to the bishops of reputed dioceses established by the Crown in Colonies possessing independent legislatures.
2. Enabling priests and deacons ordained by Colonial bishops not having legal jurisdiction to officiate in the United Kingdom under proper restrictions, probably those now imposed on the clergy of the Scottish Episcopate by 26 & 27 Viet. c. 94.
3. Giving to all acts heretofore done by or in relation to clergy ordained by Colonial bishops not possessing legal jurisdiction the same validity as if such bishop had possessed legal jurisdiction.
Sir Frederic Rogers added that your Lordship would be glad to be furnished with our opinion on these points at the earliest day consistent with such a careful con sideration as the importance of the question requires.
In obedience to your Lordship's commands we have considered this case and the several documents and questions submitied to us.
That in answer to the first question submitted to us we have the honour to
Our opinion in the negative.
Report
2. We think an affirmative answer to the first question could not have been recon- ciled with the judgment of the Judicial Committee, and that the negative answer we have given cannot be reconciled with that of Lord Romilly. In using the word "judgment" we refer to the whole exposition of the law in the respective judgments. The material point decided in the Privy Council is in conformity with our opinion on the first question; the only point which it was necessary for the Master of the Bolls to decide is not in conflict with the judgment of the Privy Council.
The obiter dicta of the Master of the Rolls are in conflict with the point decided by the Privy Council. The explanation given by the Master of the Rolls of the judgment of the Judicial Committee of the Privy Council, of which he was only a single member, cannot be accepted as an authoritative exposition of that judgment.
3. We think the Crown can create a corporation sole in a Colony by the name of a bishop, and his status as a corporation would be recognised in courts of law, but he would have no coercive or other legal jurisdiction analogous to that which is exercised by a bishop of the Established Church in England and Ireland.
We do not, however, think that any spiritual acts properly incident to the status and office of a bishop, and which have been done by him, would be liable to be questioned in a court of law, because he was not really a diocesan bishop.
4. The 4th section of the 59 Geo. 3. is as follows:-
"Provided always that no person who, after the passing of this Act, shall have been ordained a deacon or priest by a Colonial bishop, who at the time of such ordi- nation did not actually possess an episcopal jurisdiction over some diocese, district, or place, or was not actually residing within such division, district, or place shall be capable in any way, or on any pretence whatever, of at any time holding any parsonage or other ecclesiastical preferment within His Majesty's dominions, or of being a stipen- diary curate or chaplain, or of officiating at any place, or in any manner as a minister of the Established Church of England or Ireland."
Having regard to the language in this statute, and to the judgments in the Privy Council, we are of opinion that this question must be answered in the negative.
5. We have not before us the constitutions referred to in the preamble of this statute (New South Wales Act, 4th October 1866), and which are made binding upon the members of the church, but it appears to us that the statute is effectual for the purpose of regulating the property, personal and real, of the existing bishops in New South Wales.
We think the Crown cannot divide or alter these so called dioceses, but if by consent of the parties concerned the dioceses are altered or divided by virtue of existing agreements or constitutions, the Act may remain effective as to such divided or altered dioceses, but not otherwise.
6. We think the petition of the New Zealand bishops should not be conceded. We are at a loss to see any injury which can accrue to them at present from the retention of these patents. And on the other hand, we think injury might very possibly accrue to them from the resignation proposed, until at least some enactment of the Imperial or Colonial legislature be passed, securing to them property conveyed to them as diocesan bishops, and validating acts done by them in that capacity.
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We are not aware what statutes of the Colony may be in force upon this subject, but there exists an Imperial statute (referred to in the opinion of the former Law Officers) enabling the Crown to divide the diocese in New Zealand.
7. We answer this question in the negative.
Lastly, we do not think that the law is sufficiently clear to preclude the necessity of legislation for the objects referred to in the letter of Sir F. Rogers.
We doubt the expediency of attempting any other legislation upon the subject.
We have, &c. (Signed)
The Right Hon. the Earl of Carnarvon,
ko.
&c.
&c.
W
JOHN ROLT.
JOHN B. KARSLAKE.
ROBERT PHILLIMORE.