ཀ། ། །།
PUBLIC RECORD OFFICE
Reference :-
CO.
885
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A
12 PUBLIC RECORD OFFICE, LONDON
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the Governor to make Ordinances, provides that nothing therein contained shall affect the Queen's right by any Order in Council to make from time to time all such laws as may appear to the Queen necessary for the peace, order, and good government of Her said city and garrison.
10. That Mr. Herbert was then to request that we would take these papers into consideration, and report—
1. Whether the Crown can legislate for a conquered or ceded Colony by Letters
Patent as well as by Order in Council?
2. Whether, if the right of legislating by Letters Patent generally exists in the conquered colonies, it still exists in Gibraltar, or has been modified by the introduction into the Governor's Commission of the words referring to Orders in Council as the mode of legislation ?
3. Whether, if the right still exists at Gibraltar of legislating by Letters Patent, the Letters Patent of November 1873, are capable of being and ought to be construed as a legislative instrument declaring the will of the Queen to destroy the See of Gibraltar and dissolve the corporation of the Lord Bishop of Gibraltar.
4. Whether, on the assumption that we agree with Dr. Tristram and disagree with Sir J. D. Coleridge and Sir George Jessel, we are of opinion that the original Letters Patent of 1842 must be taken to be in full force and effect, so that the See still exists and may be filled by Letters Pateut appointing a bishop in the ordinary manner?
5. Whether, in our opinion, it would be necessary, or, if not necessary, desirable. with a view to remove any doubt, to pass fresh Letters Patent revoking those of 1873 which repealed the Letters Patent of 1842 ?
6. And generally, Mr. Herbert was to request our advice as to what steps Her Majesty's Government should take under the circumstances, if we advise that it was competent for them to revert, and if they decide to revert, to the former state of things by appointing a bishop under Letters Patent to the see of Gibraltar?
In obedience with your Lordship's commands, we have taken these papers into consideration, and have the honour to
Report
1. That, in our opinion, the Crown can legislate for a conquered or ceded Colony by Letters Patent as well as by Order in Council.
2. The words introduced into the Governor's Commission, referring to Orders in Council as the mode of legislation in Gibraltar, do not, in our opinion, affect the question of the validity of any Letters Patent relating to the See of Gibraltar, for those words are (as the whole of the Governor's Letters Patent is) to be taken in connexion with the powers conferred on the Governor for the peace, order, and good government of the city and garrison, and cannot properly be extended to a limitation of the power of the Crown in the manner of appointing a bishop.
But those words do modify the power of the Crown in reference to legislation, which may be immediately connected with the peace, order, and good government of the city and garrison of Gibraltar.
3. In our opinion, the Letters Patent of November 1873 are capable of being, and ought to be, construed as declaring the will of the Queen to change the constitution of the See of Gibraltar, and so far to destroy that See and dissolve the corporation of the "Lord Bishop of Gibraltar."
4. We do not agree with the opinion expressed by Dr. Tristram, but with that expressed by Sir J. D. Coleridge and Sir George Jessel, and we are of opinion that the original Letters Patent have no longer any force or effect.
5. It is not, we think, either necessary or desirable to pass fresh Letters Patent revoking those of 1873, which repealed the Letters Patent of 1842.
6. We are of opinion that it is competent to Her Majesty's Government to revert to the former state of things, and to appoint a bishop under Letters l'atent to the See of Gibraltar.
We suggest, however, for your Lordship's consideration that, should Her Majesty's Government decide upon reverting to the former state of things, as to the See of
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Gibraltar, it is to expected that the precedent may lead to applications for a similar change in other Colonies, where bishops have been appointed otherwise than by Letters Patent. Your Lordship will form the best opinion, whether the supposed advantages to be gained by the change will outweigh the inconvenience of uncertainty in the manner of appointing certain Colonial Bishops.
The Right Hon. the Earl of Carnarvon,
&c. &o.
&c.
We have, &c.,
(Signed)
RICHARD BAGGALLAY. JOHN HOLKER.
J. PARKER DEANE.