CO885-(10-11) — Page 135

PUBLIC RECORD OFFICE

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Reference :-

C.O.

885

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PUBLIC RECORD OFFICE, LONDON

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And that your Grace appreciates the weight which is due to these observations, and that their importance has been recently illustrated by what has happened in another Colony.

That the Letters Patent of the Bishop of Sydney enable him to take cognizance of olerical delinquencies through a species of court composed of clergymen. And that a local Act of the New South Wales Legislature enables him to hear and decide upon such cases in person.

And that the present bishop having a cause of complaint against one of his clergy, proceeded against him in the manner provided by the Letters Patent, but that the clergyman, however, disputed the legality of this mode of proceeding, and that the Supreme Court, before whom the case was brought, determined that the Crown was not competent by virtue of its prerogative to give ecclesiastical jurisdiction in New South Wales (a Colony possessing representative institutions and Responsible Govern- ment); that the Letters Patent, so far as they profess to confer such jurisdiction, were waste paper, and that the bishop could only proceed against the clergyman under the And that whatever may be the local law, which he accordingly did with succesa. legal propriety of this decision, it is certain that except in a few Colonies the disciplinary jurisdiction conferred upon Colonial bishops by the Royal Letters Patent has never been found of much use, their real power being generally derived from the accident that the salaries of the clergy are only receivable so long as they act under the bishop's license, which license may be withdrawn at will.

Sir Frederic Rogers also states that applying these considerations to the case of Canada, it appears that the existing form of Letters Patent are inapplicable to the state of that Colony.

1. Because the form is that of donation, whereas the bishoprics are now practically elective, and the real appointment rests not with the Crown but with the clergy and laity of the diocese.

2. Because the grant of jurisdiction by this instrument is of questionable validity at law.

3. Because that jurisdiction, even if legally valid, is probably incapable of being practically exercised.

4. Because the bishops have in the local Act another source of jurisdiction of undoubted legality which is or may, by diocesan regulations, be made available in practice.

5. Because under these circumstances it will be competent to the Canadian diocese by such regulations to over-ride and set aside the Royal grant of jurisdiction, an indignity to which (as observed by the Law Officers) the Royal authority ought not to be subject. 6. And, lastly, because the present mode of proceeding involves much liability to error in drawing instruments in this country only avoided by an amount of correspon- dence which is better avoided.

And that these difficulties appear to your Grace to be susceptible of a very simple solution.

That in England, where the appointment of a bishop really rests with the Sovereign, it has yet been thought advisable to retain a form of election by the chapter of the different dioceses, and that the authority of the Crown is exerted not by appointing the bishop, but by assenting to the election, and by requiring the archbishop or other competent authority to proceed to confirmation, and, if necessary, consecration.

And that it appeared to your Grace that this mode of proceeding if appropriate in England, where it has more or less the character of a legal fiction, would be much more appropriate in Canada, where it would represent or, at least, might be adjusted accurately to the real state of things, and that your Grace would therefore propose to communicate through the Governor of Canada with the Metropolitan Bishop of Montreal in order to arrange some form of proceeding on the English model, which would avoid the liability to inconvenience attaching to the present anomalous system.

But that before doing so your Grace was desirous of obtaining from us such assistance as may enable you to submit the proposal to his Lordship in a definite form which is free from legal objections.

And that your Grace proposed, for our consideration, the following mode of proceeding in case of the election to any Canadian bishopric.

1. Petition from the electors, which after reciting the creation and vacancy of the diocese, the passing of the Canadian Act, and of the regulations made under that Act which empower them to elect a bishop, and the actual election in accordance with these regulations, should request the Crown to assent to that election, and to take steps for giving effect to it.

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2. Letters Patent reciting the petition, assenting to the election, directing the metropolitan or other competent authority to confirm and consecrate.

3. Confirmation and consecration.

4. Signification of the same to Her Majesty.

And that if we should think that the course of proceeding to which this is an outline would not be open to any objection in point of law, and would issue on investing the bishop so consecrated with all such power as is legally necessary to exercise his office under the Canadian Act, or, at any rate, that any deficiencies in the mode of proceeding could be supplied by regulations to be made in Canada, your Grace would forward the scheme for the consideration of the Canadian ecclesiastical authorities, and would request them, having reference to their peculiar position and to the forms pursued in England (copies of which Sir Frederic Rogers stated should be forwarded to them), to frame, for consideration in this country, such forms of petition and Letters Patent, and such drafts of regulations respecting the mode of confirmation and consecration (the mode of consecration being, of course, that prescribed in the English Prayer Book) as would best serve the exigencies of their dioceses, and might by increased simplicity avoid the necessity of protracted correspondence by which the preparation of Canadian Letters Patent is otherwise likely to be attended.

And that your Grace would be glad, therefore, to learn from us-

1. Whether the proposed course of proceeding will, if the details are properly arranged, be unobjectionable and sufficient in point of law?

2. If so, whether the matter will be sufficiently brought under the consideration of the ecclesiastical authorities of Canada, by a statement substantially similar to that which was submitted to us, or whether any further observations or cautions appear to us to be required in the very outset of the correspondence, and if the course is open to any legal objection?

3. With what modifications (if any) it could properly be proposed for the acceptance of the Canadian Church.

In obedience to your Grace's commands we have taken this matter into our con- sideration, and have the honour to

Report

1. That the proposed course of proceeding will, if the details are properly arranged, be in our opinion unobjectionable and sufficient in point of law.

2. That the matter will be sufficiently brought under the consideration of the ecclesiastical authorities of Canada by a statement substantially similar to that which is now submitted to us.

3. Considering the peculiar circumstances of the case, it does not appear to us that in bringing the proposed course of proceeding to the notice of the Canadian ecclesiastical authorities in the first instance any modifications are requisite on the part of your Grace.

It will be for them, under competent legal advice in the Colony, to suggest such modifications (if any) as the Colonial Laws and Constitution (whether civil or eccle- siastical) may appear to them to require, in order to ensure the practical success of the plan thus proposed.

His Grace the Duke of Newcastle, K.G.,

&c.

&c.

&c.

We have, &c. (Signed)

J. D. HARDING.

WM. ATHERTON. ROUNDELL PALMER.

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