PUBLIC RECORD OFFICE
Reference :-
PEPER C.O. 885
11 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH—NOT TO
2
28 & 29 Viot. o. 113, actually or provisionally, and we think that it would certainly be expedient to have this doubt solved if possible by Act of Parliament in order to prevent any question arising as to the legality of the full pension in case it be desired that such full pension should be awarded.
His Grace the Duke of Buckingham
and Chandos.
·
We have, &c. (Signed) JOHN B. KARSLAKE. WM. BALIOL BRETT.
៥៥
8396.
No. 523.
(CAPE OF GOOD HOPE.)
LAW OFFICERS to COLONIAL OFFICE.
MY LORD DUKE,
Temple, August 3, 1868. We are honoured with your Grace's commands, signified in Sir Frederic Rogers' letter of the 14th of July 1868, stating that he was directed by your Grace to staté that your Grace has had under your consideration the Report of the 6th of July,* addressed to you by us upon the question of the proposed mandate for the consecration of a bishop in South Africa.
2. That in that Report it is stated that "on the propriety of granting such a license
or warrant and conferring the right in the new bishop of exercising episcopal func- tions within the constituted dioceses of South Africa, it would be beyond our province
"to express an opinion," and Sir Frederic Rogers was desired with reference to this part of our Report, to explain the view with which that form of mandate was pre- pared.
3. That it was assumed on the one hand that the Crown has not the power of assign- ing a sphere of action to the new bishop, or, consequently, of conferring on him any right to exercise episcopal functions in any part of South Africa, which is included in a colony having an independent legislature, and particularly in the Cape of Good Hope. That it was, however, assumed on the other hand, that there is no law which would enable the bishop, or reputed bishop of any diocese, or reputed diocese in South Africa, to prevent the newly consecrated bishop, or any other bishop, from exercising episcopal functions within his diocese for such persons as voluntarily submitted themselves to such intruding bishop and chose to accept his services.
4. That this latter assumption was based on the ground that the ecclesiastical law of Great Britain which prevents the bishop of one diocese from intruding upon the diocese of another bishop against the wishes of the latter bishop, does not extend to the colonies.
5. That upon these assumptions, it was considered that the effect of the proposed man- date would be, not to confer a right upon the person so consecrated to exercise episcopal functions within a defined sphere of action comprised in any colony which had an in- dependent legislature, but to enable the archbishop to consecrate a bishop under a given title, who could not in fact be legally prevented by the bishop of any diocese in South Africa from exercising episcopal functions in such diocese.
6. Sir Frederic Rogers was desired by your Grace to request that we would favour you with our opinion whether, the latter of the above assumptions is correct, in other words, whether there are any legal means by which one of the bishops or reputed bishops of Cape Town, Grahamstown, or Natal, could prevent any other bishop from performing episcopal functions in his diocese, and secondly, that we would favour your Grace with any further remarks which may occur to us upon the important questions involved in this case.
In obedience to your Grace's commands, we have taken this matter into our con- sideration, and have the honour to
Report
That having regard to the law as laid down by the Privy Council, and assuming that the Letters Patent appointing the bishops of Cape Town, Grahamstown, and Natal, are invalid, so far as they profess to create legal dioceses, and to confer jurisdiction on the bishops thereby appointed, it appears to us that there would be no direct legal mode by which any of those bishops could prevent any other bishop from performing epis. copal functions within the limits assigned to them as dioceses, except in cases when such bishop might actually invade a church of which any of the three bishops might be in possession, or churches over which any of the bishops has authority under exist- ing agreements.
It being the purpose, as we understand, that an appointment of a bishop shall be made for the express object that he may perform episcopal functions within the diocese of the existing bishops without their consent, and even against their wish, we would only further remark that, although our opinion is that the existing bishops will not be able legally to interfere directly with the proposed bishop in the exercise of
• No. 517.
n 16978-860. 25.-5/96.