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PUBLIC RECORD OFFICE
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Reference :-
C.O.885
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC-
COPYRIGHT PHOTOGRAPH-NOT TO
PUBLIC RECORD OFFICE, LONDON
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Colonies comprised in them possessed representative institutions except the following:
St. Lucia in the diocese of Barbados, and Trini- dad in that of Antigua, were and are purely Crown Colonies.
British Guiana had and retains a partially Repre- sentative Legislature, continued with certain modi- fications from the time of the Dutch Government. But the Crown has reserved to itself, and is held to retain, and in fact has exercised the power of legis- lating by Order in Council.
In the diocese of Jamaica, Honduras possessed an auomalous form of government to which it was difficult to apply any rule. It has since received representative institutions.
The Acts of Parliament relating to the West Indian Colonies do not touch ou the question of jurisdiction; but laws have been passed in many of the Colonies having for their object to enable the Bishop to enforce discipline upon the clergy.
AUSTRALIA.
Australia not having been acquired by conquest or cession, the Crown has never possessed the prerogative power of legislation.
In 1828, by the Act of Parliament 9 Geo. IV, cap. 63, His Majesty was authorized to exercise in New South Wales and Van Diemen's Land (secs. 10, 13, 15) certain limited powers of legislation by Order in Council; but subject to the exercise of these powers, the power of making laws for the peace, welfare, and good government of the Colonies was to be exercised (secs. 20, 21) by the Governor of each Colony, with a Council of persons nominated by the Crown.
In 1836, the See of Australia was constituted, and Bishop Broughton was appointed in the usual
way, and with the powers of jurisdiction.
In 1842, the Bishopric of Tasmania was carved out of that of New South Wales, the form of government remaining that originally established there; and the powers given being those of juris- diction. Before long, however, petitions were re- ceived from some of the inhabitants of the Colony,
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and particularly from certain Baptist Ministers and Presbyterians, objecting to these Letters-Patent, and especially to that part which authorized the Bishop to summon witnesses before the Ecclesiastical Court.
The Law Officers, Sir John Dodson, Sir J. Jervis, and Sir D. Dundas, were requested by the Secretary of State for the Colonies to report on the matter, and particularly to consider "whether any real advantage is to he anticipated from the introduction into the proposed Letters-Patent of any provisions whatever, beyond a declaration of the Royal pleasure that a new Bishopric shall be created with a specified titular desiguation, and with a distinct specification of the territorial limits of the intended See, adding
(if that be proper) the appointment by name of the first or original Bishop." It was added that “the Bishops to whom such patents' have been addressed have sometimes been involved in grave difficulties, from regarding every part of them as really opera- tive and effectual, and from attempting to reduce every part of them to practice."
The Law Officers were silent on the question thus particularly referred to them, but were of opinion that "Her Majesty had no authority by Letters-Patent to create the ecclesiastical jurisdiction complained of in the memorials referred to, and that therefore the objections were well founded."
The Letters-Patent of the Bishop of Tasmania were therefore, with his consent, revoked and others were issued which omitted the power to summon witnesses, the power to examine on oath, the express mention of jurisdiction and the express power to punish by suspension, deprivation, or otherwise, and only authorized the Bishop to visit the clergy, to call them before him, and to inquire as to their morals and behaviour in their offices and stations.
As soon as this question was settled, i. e., in 1847, the Bishopric of Australia was divided into the four Bishoprics of Sydney, Newcastle, Melbourne, and Adelaide; metropolitan powers over the other three dioceses as well as Tasmania being given to the Bishop of Sydney. In all these dioceses the episcopal powers were reduced to those of visitation.
The three dioceses of Sydney, Newcastle, and Melbourne, comprised together the then Colony of New South Wales, where partially representative
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Reference -
C.O.885
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institutions had been substituted in 1842 for the Melbourne purely nominee Legislative Council.
was coincident with the present Colony of Victoria. The diocese of Adelaide comprised the Colonies of South and of Western Australia. In South Australia (as in Tasmania) a Legislative Council existed nominated by the Crown by virtue of an Act of Parliament (5 and 6 Vict., cap. 61) which did not reserve to or confer upon Her Majesty any powers of legislation. In Western Australia a Legislative Council existed, established under an Act of Parlia- ment which conferred on the Crown the power of legislation (10 Geo. IV, cap. 22).
In 1856 the Bishopric of Perth, coincident with
the Colony of Western Australia, was carved out of that of Adelaide, with the same powers of visitation, The constitution of Western Australia has not been changed, the Act of 10 Geo. IV, having been con- tinued by 13 and 14 Vict., cap. 59, sec. 10.
In 1859 the Bishopric of Brisbane was carved out
of that of Newcastle, with powers of visitation. It
was coincident with the then Colony of Queensland,
in which, as in New South Wales, from which it had been separated, representative institutions had been fully established,
In 1863 the Bishopric of Goulburn was carved out of that of Sydney, with similar powers.
In New South Wales there is a Local Act which invests the "Bishop of the diocese" with a power of licencing Clergy and withdrawing their licences upon cause shown (8 Wm. IV., No. 5, secs. 19, 20). This Act may possibly be in force in Queensland. In Victoria the Legislature (Act of 30th Novem- ber, 1854) has enabled the Bishop, Clergy, and Laity of any Victorian diocese to meet in Synod, and make regulations for the enforcement of disci- pline.
In Tasmania similar provisions are made by a Colonial Act (22 Viet., No. 20), and the Bishop is enabled to examine witnesses on oath, though not to summon them.
In South Australia there has been no legislation; but the Bishop and Clergy have bound themselves by what is called a "consensual compact," which establishes a Synod, and binds the Clergy to obey its regulations.
Western Australia, as has been implied, may
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probably be considered for the present purpose as a Crown Colony.
NEW ZEALAND.
In the year 1840 British settlers established themselves in New Zealand. A purely nominee Legislative Council was established under the Imperial Act 3 and 4 Vict., cap. 62, which does not
give the Crown any power of legislation.
In 1841 it was proposed to erect a Bishopric in New Zealand; but the Queen's Advocate, Sir John Dodson, while engaged in preparing the Letters- Patent, observed that "doubts, founded principally the preamble of the Statute of 26 Geo. IV, cap. 84, were entertained respecting the rights of the Crown to nominate Bishops of its own mere authority by Letters-Patent under the Great Seal."
upon
The phrase to which Sir John Dodson refers appears to be the following:-"Whereas by the laws of this realm no person can be consecrated to the office of Bishop without the King's Licence for his election, and the Royal Mandate under the Great Seal for his confirmation and consecration."
The doubt, therefore, would seem to have been, not whether legislative authority were not necessary
to give jurisdiction, but whether consecration could be legally effected without some kind of election and confirmation.
In fact the doubt appears to have been got over. and Bishop Selwyn was consecrated in obedience to the usual Letters-Patent. Those Letters-Patent
him gave powers of jurisdiction.
In 1856 the Bishopric of Christ Church, and in 1858 the Bishoprics of Wellington, Waiapa, and Nelson were carved out of the Bishopric of New Zealand, the Bishop of New Zealand being invested
with metropolitan jurisdiction, which it may be observed gives "all manner of all visitatorial juris- diction, power, and coercion.”
In founding these new Bishoprics powers of visita-
tion only were given. And as the transactions of 1858 involved the surrender of the Bishop of New Zealand's Patent, the opportunity was taken of reducing his powers to those of visitation.
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