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which may ask for them, and are only available against those who volun- tarily come within their range..
I should be very glad, therefore, if you would consider in conjunction with the Bishop and your Responsible Advisers, whether there would be any difficulty in passing an Act giving to the Church of England in South Australia powers analogous to those which she possesses under the Victorian or Canadian Acts of Parliament, and of course giving or enabling the Church to give validity to the provisions and regulations already enacted. If no such difficulty should exist, and if any Member of the Church of England should introduce a Bill for effecting this object, I should hope that your Ministry would be able to give it their support. If from any circumstance of which I am ignorant this course should be impracticable, I shall hope to receive from the Bishop the draft of such a clause as he would wish to be introduced into his Letters-Patent, with such observations from yourself as you may consider requisite.
I have, &c. (Signed) NEWCASTLE,
Governor Sir R. G. Mac Donnell,
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No. 11.
The Duke of NEWCASTLE to Governor Sir John Young, Bart.
(No. 58. New South Wales.)
SIR,
Downing Street, September 26, 1961.
I HAVE received your despatch No. 36 of the 21st of May, 1861, inclosing a letter from the Bishop of Sydney, in which he communicates to me the copy of a recent decision of the Supreme Court in the case of Mr King, and states that it would be a great satisfaction to know the opinion of the Law Officers of the Crown as to the nature and validity of the jurisdiction conferred upon him by his Letters-Patent.
That instrument professes to invest the Bishop with jurisdiction over the Clergy of his Diocese, and authorizes a mode of exercising that jurisdiction.
The Judges declare in effect that the Crown has indeed the power of appointing a Bishop, and by that appointment (coupled of course with the proper ecclesiastical_solemnities) of authorizing him to exercise the spiritual functions of Bishop within the territory there specified; but they deny that Her Majesty can, by a mere act of the Prerogative, confer on the Bishop so appointed any jurisdiction not authorized by Act of the Imperial Parliament or of the Local Legislature.
Jurisdiction is in fact given by an Act of the Local Legislature, but the mode of exercising jurisdiction implied by that Act is different from that authorized by the Letters-Patent, and, apparently, in the opinion of the Judges less agreeable" [see J. Dickinson] "to natural equity and fair dealing."
The Judges, however, have declared that the power conferred by the Letters-Patent being invalid, and that conferred by the Act being valid, the Bishop is bound in law to pursue the latter and in itself less advisable method.
Under these circumstances it is plain that the Bishop is bound to conform to the decision of the Supreme Court (which must be obeyed as law so long as it stands unreversed), unless he, or the Crown through him, desires by disregarding that decision to provoke fresh suit and bring the Judge's sentence in that suit before the Privy Council by way of appeal; and the opinion of the Law Officers might be useful for either of two purposes, first, to inform the Bishop as to the course which he should pursue while the Judgment of the Supreme Court stands good, and secondly, to advise whether there is a fair prospect of procuring a reversal of that Judgment.
For the first of these objects it does not appear to me necessary to invoke the advice of the Crown Lawyers,
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It is plain, as I have said, that the Bishop must formally obey the law as laid down by the Judges, nor can the Crown in any way find fault with him for so doing. But it would, in my opinion, be very advisable, and 1 should think very easy, while formally retaining in his own hands the trial of ecclesiastical cases as prescribed by the local statute, to give the accused clergyman practically the benefit, if he chooses to accept of it, of the mode of investigation indicated in the Letters-Patent.
With regard to the larger question which is raised, I inclose a copy of a correspondence which has passed between the Bishop of Adelaide, the Governor of South Australia, and myself, from which you will perceive that in my opinion it is highly desirable that the constitutions of Colonial Churches and the mode of administering discipline in them should rest rather on Colonial enactment than on Royal authority, with the object (among others) of avoiding such questions of jurisdiction as that which has now arisen. If this opinion is correct it would follow, as a matter of course, that the difficulty which has now occurred ought rather to be settled by Colonial legislation than by litigation or controversy, and I should readily advise Her Majesty to make such alterations in the existing Letters-Patent as would bring them into conformity with a well-considered Colonial law.
My own judgment would be, as indicated in the enclosed despatch, that the constitution of the Ecclesiastical Tribunal which is to take cognizance of offences committed by functionaries of the Church may be wisely left to be prescribed by some lawful assembly of the Church itself, and that local legislation is best employed in enabling the Church of England to hold such an assembly, a power which if not already given would not, I presume, be denied by the Legislature of New South Wales to the Roman Catholic or Presbyterian Churches, or to any other Religious Communion whether or not receiving a limited aid from the State. But this point, viz., the mode of constituting what I will call the Ecclesiastical Court of First Instance, and the grant of corporate powers for that purpose, is mainly for the joint consideration of the authorities of the Religious Communities desiring such corporate powers and the Colonial Legislature which confers them.
The right of appeal, whether to a Synod of Bishops, or others repre. senting the Australian Churches, to the Archbishop of Canterbury, or to Her Majesty in Council, is a matter of some Imperial importance, since it concerns ultimately the unity of the National Church. Any legislation on this point should be very carefully considered both as to the nature of the provisions adopted, and as to the mode of legislation through which those provisions are to take effect. I will only say for myself that I should not on light grounds advise Her Majesty to withhold Her assent from any measure respecting Ecclesiastical Jurisdiction which was recommended by the Ecclesiastical Authorities, and assented to by the Legislatures of the Colonies concerned; that, in particular, Her Majesty's Government desire to avoid involving themselves in the decision of any ecclesiastical questions, and have no wish to give undue extension to the central or Metropolitan authority in such matters, but notwithstanding that it is necessary that questions of doctrine, or others affecting the unity of the National Church. should be referable, in the last resort, to some Central Tribunal. I will further observe with regard to the manner of effecting any proposed change, that it must be steadily borne in mind that no Colonial Legisla ture can pass Acts which have any binding force beyond the territorial limits of the Colony in which these Acts are passed, and therefore that Imperial intervention by way of prerogative or otherwise is almost univer- sally necessary when any Metropolitan or Inter-colonial action is contem- plated.
I have, &c. (Signed) NEWCASTLE. Governor the Right Hon. Sir John Young, Bart, K.C'.B.
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No. 11.