CO885(2-3) — Page 249

No. 10.

Not printed.

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under the seal of the said province, and we think a similar instrument, substituting the words "Upper Canada” for “Lower Canada,” ought to pass the great seal of the province of Upper Canada.

The Right Hon. Henry Dundas,

&c.

&c.

&c.

We have, &c. (Signed)

WM. SCOTT. JOHN SCOTT. JOHN MITFORD.

II. RECENT DESPATCHES RESPECTING COLONIAL

BISHOPRICS.

No. 10.

The Duke of NEWCASTLE to Governor Sir R. G. MAC DONNELL..

(No. 6. South Australia.)

Sir,

Downing Street, January 15, 1861.

I ENCLOSE the copy of a letter which I have received from the Bishop of Adelaide transmitting a memorial addressed to the Queen by the Synod of that Diocese.

The Memorialists desire, first, that the Letters-Patent of the present Bishop may be revoked and such others issued as may recognize the funda mental provisions, regulations, and forms of trust-deed adopted by the Synod as valid and binding, and provide that in future all Bishops shall govern their church in accordance therewith.

They also appear to desire that steps may be taken to give effect to the appellate jurisdiction of the Bishop of Sydney in respect to offences against church discipline committed in the Diocese of Adelaide.

You will inform the Bishop that this Memorial has been laid before Her Majesty, who was pleased to receive it very graciously; and in answer to the Bishop's letter you will communicate to him a copy of this despatch.

The appellate jurisdiction of the Bishop of Sydney is a matter of unquestionable importance to the consolidation of the Australian churches in communion with the Church of England, and I shall gladly consider any practical scheme for rendering it effectual. But it appears to me that any such scheme ought to be brought before Her Majesty's Government in the shape of a proposal adopted after due consultation by the body of the Bishops concerned. Till such consultation is had it would, in my opinion, be premature to take any steps in this country,

On the proposed alteration of the Letters-Patent, I have first to observe that the validity and binding character of the voluntary agreement which provides an organization and means of discipline for the Diocese of Adelaide, is a legal question to be determined by the courts of justice of South Australia, and not to be prejudged by Her Majesty. The Queen therefore cannot be advised to pronounce a decision which she has not the means of enforcing or rendering authoritative.

But, as at present advised, I should see no objection to the insertion in the Letters-Patent of a clause declaring Her Majesty pleasure that all power and jurisdiction conferred by those Letters-Patent on the Bishop should be exercised as far as might be in conformity with the fundamental provisions of the Church, and with such other provisions and regulations as might from time to time be lawfully made in virtue of the consensual compact.

'If, therefore, it should appear impracticable to effect the object of the Synod in any better way, I should wish the Bishop, with proper legal

39

advice, to frame such a clause as will best answer the purpose which he has in view, without causing Her Majesty to express any judgment capable of being brought into question before a Colonial Court of Justice. This clause I will cause to be submitted for the opinion of the Law Advisers of the Crown in such matters, with every desire that I may be able to recom- mend it for Her Majesty's adoption.

But I am anxious on many grounds that a different course may prove practicable.

It would, I think, be better in point of principle that the relations between the Anglo-Australian Church and the colonies in which it is to exercise its functions should be defined not by an act of the prerogative representing the Central Government, but by the free act of the colonists themselves, represented by their respective Legislatures. Such an act would give a popular character to the Church, which appears to me not unimportant.

But, moreover, it would have certain tangible advantages. Letters- Patent may be altered, at least, on occasion of every fresh vacancy in the office of Bishop, and probably would be so altered from time to time. Nor is it easy to anticipate what exact authority may be allowed by Colonial Courts to particular provisions of such Letters-Patent.

But a Colonial Act for the quasi incorporation of the Church may almost be viewed as unalterable, except at the request of the Church itself, and must necessarily be admitted as of conclusive authority by any colonial tribunal before which the acts of the Bishop or other Church officers may be called in question.

I think, therefore, that the most appropriate method of satisfying the wishes of the Synod is by an Act of the Legislature giving to the South Australian Church, in effect, the character of a corporation, with the power of making bye-laws. The objection to this course I collect from the Bishop's letter to be that "the Anti-State and Church principle on which the colony was founded" prevents the Church "from obtaining a local statute giving effect to the acts of a Synod and the sentences of the Bishop."

It

I cannot but hope that the Bishop has misapprehended, perhaps not the principle on which the colony was founded, but at least the actual temper and views of the colonists. In South Australia, as in other British colonies, bodies of persons engaged in commercial enterprises, with a view to their own profit, can obtain without difficulty the advantages of incor- poration, so far as those advantages are required for the regular conduct of their business or the effectual prosecution of their operations. appears a matter of simple justice and prudence that the Church of England and other religious communities, united together for purposes certainly not less beneficial to society at large, should be encouraged in their useful work by receiving every facility which the Legislature can give them for carrying it on in their own way. The "Anti-Church and State" principle appears to me not to prevent, but to necessitate, the application of this principle. For the inore exclusively any Church is required to rely on the voluntary support of her own members, the more necessary is it that those members should be enabled to make binding rules to ensure the proper administration of their own funds and the performance of their corporate duties to each other, or, in other words, for the enforcement of such ecclesiastical discipline as the nature of the particular Church requires

These considerations, which are to my mind conclusive, lead me to anticipate that the South Australian Legislature may be more ready than the Bishop supposes, to pass a law similar in principle to those which have been passed in Canada and Victoria, for the purpose of investing, the Church of England for any other religious communion) with the powers necessary for her effectual organization. No aid being sought by that Church from the public revenue, nor any exceptional dignity, nor any coercive power (except that which is inherent in the administration of her own funds, and her own religious ritès), it appears to me improbable that the community will view with any jealousy her present demand, the demand of powers which are accessible to any religious denomination

PUPL

REC

RD OFFICE

Reference

C.O.885

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