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lawfully and substantially representing the Anglican Communion in their Dioceses; but until such authority exists I should desire you to continue the existing practice of presenting to any vacant incumbency the clergy- man recommended by the Bishop, unless there should be some strong and specific reason to the contrary. Whether such a clergyman has or has not submitted to the conditions required by the Synod as a condition of presentation, I do not think you are at all bound to enquire.

If, in the present case, the Bishop had proposed to force upon the congregation of Rondebosch (which I infer to have been one of the recusant parishes) a clergyman wholly distasteful to them, I think you would have been called upon to refer the question home, and I should have been compelled, though reluctantly, to consider and decide upon it. But as, on the contrary, it appears that this congregation is ready to guarantee to Mr. Hughes (the Bishop's nominee) no less than 4001, the Government contribution being only 1501, I have no hesitation in authorizing the appointment of that gentleman.

The name which seems to have given occasion for dispute, "the Church of the diocese of Cape Town in full communion with the Church of England," seems to have been adopted with every desire to be correct, and I see no reason to suppose it otherwise. I am, however, little disposed to enter into a question of ecclesiastical terminology, and have endeavoured in this despatch to express my meaning without reference to any disputed phrase.

I have, &c.

Governor Wodehouse,

&c.

&c. &c.

No. 15.

(Signed)

NEWCASTLE,

The Duke of NEWCASTLE to Sir P. E. WODEHOUSE.

(No. 664. Cape of Good Hope.)

SIR,

Downing Street, July 13, 1863.

I TRANSMIT for your information, a copy of the Judgment recently pronounced by the Lords of the Judicial Committee of Privy Council on the Appeal case Long r. the Bishop of Cape Town.

The position in the Colony of the Assembly of Clergy and Laity convened by the Bishop under the designation of a Synod is laid down with the utmost clearness in the 14th, 15th, and 16th pages of the Judgment; and applying to that Judgment the principles embodied in my despatch No. 485 of the 5th June, 1862, 1 have to instruct you that you will not be at liberty to recognize that Assembly as possessing in the Colony the powers (if any) which legally attach to a Provincial or Diocesan Synod in England, nor to take any official cognizance of the acts either of the Assembly itself or of any body emanating from it, until steps shall have been taken to clear it from the imputation of illegality which at present attaches to it.

You are at liberty to communicate a copy of this despatch to the Bishop.

I have, &c.

Sir P. E. Wodehouse, K.C.B.,

&c.

&c.

&c.

No. 16.

(Signed)

NEWCASTLE.

The Duke of NEWCASTLE to Sir P. E. WODEHOUSE.

(No. 736. Cape of Good Hope.)

SIB,

Downing Street, February 4, 1864.

I HAVE to acknowledge your despatch No. 131 of the 20th of October, enclosing the copy of a letter from the Bishop of Cape Town, intended, as I collect, for publication, and relating to the instructions

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which I conveyed to you in my despatch No. 661 of the 13th of July. These instructions were called for by a recent Judgment pronounced by the Lords of the Committee of the Privy Council in the case of Long r. the Bishop of Cape Town,

Whether his Lordship is right in pronouncing my instructions to have been premature and needless, and the Judgment on which they are founded to be pervaded by misstatements, is a question which I do not think ,myself called upon to argue; I will only observe that Her Majesty's servants are bound to treat the decision of the highest Court of Appeal in such matters, as absolutely conclusive in questions of law, and to receive with much hesitation any suggestion that statements resting upon such an authority are inaccurate in matter of fact. Nor can refrain from expressing a doubt whether I should have escaped remark on his Lordship's part if, instead of conveying directions to you respecting your own conduct in this matter, I had, according to the suggestions contained in his letter, directed you to convey to him my instructions as to the light in which the Queen's Letters-Patent were to be regarded by him, and as to his duty with reference to them.

י

At present I propose to communicate to you the views which, after obtaining the advice of the Law Officers of the Crown, I have been enabled to form on this intricate subject, in such a manner as will furnish you with a guide for your own conduct, and at the same time will supply the best answer I can give to the questions expressly or implicitly proposed to me by the Bishop.

In the first place. I am advised that (assuming that there is no local law to the contrary) the members of the Church of England in a Colony in which that Church is not established, have the same liberty of assembling for any lawful purpose which is possessed by members of any other religious denomination; and that it would be lawful for a Colonial Bishop or Metropolitan without the consent of the Crown, and without any express legislative authority, to summon meetings of the Clergy and Laity of the Church under the designation of Provincial or Diocesan Sypods, or any other designation, for the purpose of deliberating on matters concerning the welfare of the Church.' The powers of such a meeting may be gathered from the following extract from the Judgment of the Judicial Committee :---

"The Church of England, in places where there is no Church estab, lished by law, is in the same situation with any other religious body, in no better but in no worse position, and the members may adopt, as the members of any other communion may adopt, rules for enforcing discipline within their body which will be binding on those who expressly or by implication have assented to them.”

It follows that the rules passed by such an Assembly as I have described (unless in themselves contrary to law) are binding, not indeed on all professed members of the Church over whom the Bishop has been appointed to preside, but on all those who expressly or by implication have assented to those rules.

So long, therefore, as the action of the Synod is confined within these limits. I should wish you to recognize it officially, to treat it as being what it virtually is, the representative of the Anglican Church, and to place at its disposal, without enquiring into its internal relations or disagreements, the funds which may be voted from time to time by the Legislature in aid of the Anglican Communion.

For the present, however, I have instructed you not to “take official cognizance of the acts of the Assembly until steps have been taken to clear it from the imputation of illegality which at present attaches to it.” When I gave you these instructions, I supposed that the Bishop could have little real difficulty in ascertaining how far the proceedings of the Synod had violated, or had appeared to violate, the principles laid down by the Court of Appeal, and I hoped, as indeed I still hope, that the members of the Church of England would be wise enough to cancel all such proceedings, and by so doing to place their institutions on a footing which would enable the Government to countenance them, and to abandon a position which must obstruct their_relations with the civil power, and

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No. 15.

No. 16.

ETLTTI

PUBLIC RECORD OFFICE

Reference

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3PUBLIC RECORD OFFICE, LONDON

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