PUBLIC RECORD OFFICE
Reference
C.O.885
3 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
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Clergymen ordained by Colonial bishops supposed to possess jurisdiction in the above sense have officiated and accepted ecclesiastical employment in England and elsewhere, as clergy of or in connexion with the Established Church.
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II. During the last eighty years the Crown has exercised the power of creating dioceses, and appointing diocesan bishops throughout the Colo- nies without reference to their forms of constitution. The bishoprics thus created have been endowed and the bishops in their diocesan capacities have received their salaries, accepted trusts, and become parties to various agreements and transactions to which the concurrence of the diocesan bishop was required.
III. The Judicial Committee in the case of the Bishop of Natal have laid it down that in a Colony possessing an independent legislature the Crown has no power to constitute a bishopric, or assign a sphere of action to a bishop or to create an eccle- siastical corporation whose status, rights, and authority the Colony is bound to acknowledge. It has further laid down that even if the Crown could have created a diocese there are special reasons which disable it from giving jurisdiction. This at least is the natural meaning of their words.
The Master of the Rolls, on the other hand, in the case of Colenso v. Gladstone has decided that in Natal, where an independent legislation exists, Dr. Colenso was by his letters patent constituted "territorial bishop" of that diocese, that he has Page 34.
a sphere of action assigned to him and within that sphere may exercise by the instrumentality, however, of the Civil Courts) a "consensual" authority, which though not "coercive"
may be properly called jurisdiction (p. 43).
And he states that what was meant by the deci- sion of the Judicial Committee was, that a bishop in a Colony possessing an independent legislature had not the "coercive powers of an English bishop over all the inhabitants."
IV. In the face of these two Judgments the first question which arises is, what must be taken to be
the state of the law.
On this point the present Law Officers of the Crown declare that the Judgments are irreconcilable, and that the Judgment of the Judicial Committee
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(understood in its obvious sense) is to be taken as good, and that of the Master of the Rolls as bad.
Extracts from their opinion are annexed.
V. It would follow (1) that a large number of Colonial Bishops hitherto supposed to have had dioceses and jurisdiction cognizable by law as resulting from their Letters Patent have never been
in possession of any such diocese or jurisdiction.
2. That the clergy ordained by them, and now exercising their functions in England and elsewhere, fall under the disqualifications imposed by the 59 Geo. III, c. 60, and are in many instances holding their appointments and exercising their functions illegally.
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3. That acts done by or in relation to the bishoprics in their diocesan character are more or
less open to question.
4. That when the Diocesans die or resign, the Crown will have no authority to appoint their
successors.
The most complete mode of dealing with these questions, would be, as regards the clergy, by re- pealing the awkward and confused mass of legis- lation respecting clergymen ordained by Roman, Greek, American, Scottish, Colonial, and Missionary Bishops, and substituting one simple and uniform rule (say that of 26 and 27 Vict., c. 94), calculated to protect English Dioceses against the infusion of improper clergymen-as regards the bishops, by declaring that all acts done by, or in relation to, them (except in exercise of jurisdiction) should be as good as if the Letters-Patent had conferred on them the character of Diocesans. And by providing a means of continuing the episcopal succession, by Royal Authority, local election, or otherwise.
But it is certain that a Bill with this object would raise many thorny questions-the relative value of Roman, Greek, American, and Colonial ordination ---the rights of Colonies having independent legisla- tures the ecclesiastical prerogative of the Crown— the spiritual independence of unestablished churches being parts of or connected with the Church of England, and so on.
VI. On the other hand, the risk of Parliamentary opposition and failure might probably be diminished by a sacrifice of method and completeness, i.e.,
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