CO885-(10-11) — Page 134

1274.

PUBLIC RECORD OFFICE

Reference :-

C.O.885

MY LORD DUKE,

No. 104.

(CANADA.)

LAW OFFICERS to COLONIAL OFFICE.

Doctors' Commons, February 5, 1862. WE are honoured with your Grace's commands, signified in Sir Frederic Rogers' letter of the 24th ultimo, in which he stated that the attention of your Grace has been recently drawn to the forms pursued in the appointment and consecration of Canadian bishops, and that it appeared to your Grace that the changes which have lately taken place in the ecclesiastical law of that Colony demand that these forms should be considerably modified, and that your Grace therefore directed him to submit to us the following statement, and to request that we would give your Grace our opinion as to the course which ought to be pursued in this matter.

Sir Frederic Rogers proceeded to state that we are aware that by the Canadian Act (19 & 20 Viot. c. 21.) it was provided that the bishops, clergy, and laity of the United Church of England and Ireland in Canada might meet in diocesan synods, or in general assembly, and might in the assembly frame a constitution and regulations for the peace, order, and good government of the church, and in diocesan synods frame regulations for the appointment, deposition, deprivation, and removal of any person bearing office in the church of whatever order and degree.

And he also stated that since the date of that Act (a copy of which, and of an amending Act, 22 Vict. c. 139., subsequently passed he was pleased to annex) various regulations (it is believed) have been made by the various dioceses of Canada, which, not requiring the approval of the Crown, have not been communicated to the Secretary of State.

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And that two new bishoprics have also been created, to which the Crown by Letters Patent has appointed persons elected by the clergy and laity of the proposed diocese.

And that these Letters Patent (it is believed) have been framed in general accordance But that in a Report, dated 13th August 1857, having with the forms hitherto in use. reference to the first of these Letters Patent, the then Law Officers of the Crown observed as follows: "The recent local Act of the Parliament of Canada, intituled "An Act to enable the Members of the United Church of England and Ireland in "Canada to meet in Synod,' having received Her Majesty's Assent, confers on any general assembly convened within the Province of Canada, power to frame a new "Ecclesiastical Local Constitution for that Province, which power, if exercised, will thereby supersede and abrogate the prerogative and constitutional powers of Her Majesty, and may retrospectively annul any Act done in the exercise of these powers. "By the same Act power is given to a General Assembly, and also to diocesan synode in Canada, to make Ordinances which may be inconsistent with, or defeat, that which is done in the exercise of the Royal prerogative. Thus, if new bishoprics are created, the same may be annulled or the bishops dismissed by a Canadian general assembly.

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"If powers and authorities are expressed to be conferred on such newly created bishops by the Crown's Letters Patent, the same may be taken away or abridged, "and the episcopal functions entirely altered by regulations of a diocesan synod or of General Assembly. It is true that until (but in the meantime subject to) the " exercise of its right of action by a General Assembly or Diocesan Synod, the preroga- "tive of the Crown remains, but it is scarcely consistent with the dignity of the "Crown to appoint bishops who will be tenants at will to a popular assembly."

And that a subsequent opinion contained the following paragraph

"We would also point out the importance, when documents of this kind are to be prepared, of full information being given to the Law Officers of all the proceedings,

acts, and resolutions which may have been passed in any Provincial or Diocesan Synods Report dated

in Canada, under the Colonial Act above cited, by which the ecclesiastical laws and 18 Nov. constitutions previously in force in Canada may have been altered, because it might 1861.* happen that provisoes or clauses now and hereafter, legal on general principles, might be rendered illegal in Canada by synodical Acts, or at all events various doubts and difficulties may arise in connexion with the subject."

016278.-99,

25.-9/86.

• No. 92,

10 PUBLIC RECORD OFFICE, LONDON

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