CO885-(10-11) — Page 179

10113.

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PUBLIC RECORD OFFICE

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Reference:

C.O.885

PUBLIC RECORD OFFICE, LONDON

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2. To insert the jurisdiction clauses in their usual shape, which assumes the incor- rectness of a judgment which, while it stands unreversed, your Grace is bound to treat with respect.

3. To give this jurisdiction with the qualification "so far as it may be exercised in accordance with the laws of the Colony," leaving the ecclesiastical authorities of New South Wales to judge for themselves how far it may be so exercised, and if requisite to apply to the Colonial Legislature for additional powers; or

4. To expunge the existing jurisdiction clauses, and substitute a provision autho- rising the Bishop to exercise all such jurisdiction, and make all such inquiry respecting clerical offences as may lawfully be exercised or made by the Bishop of a diocese in the Colony of New South Wales, and to appoint all such officers as are necessary for the exercise of such jurisdiction.

Sir Frederic Rogers was pleased further to state that, if we should be of opinion that the judgment of the Supreme Court is evidently right there would be strong reason for adopting the first of these courses, and that if we should be of opinion that the judgment is evidently wrong there would be strong reason for the second.

And that if we should be of opinion that the judgment should be treated as open to reasonable doubt, your Grace desired him particularly to request our opinion whether it is better to adopt the third or fourth alternatives above proposed, or whether we could suggest any safer and more effectual mode of framing the Letters Patent. He also stated that in the draft the third alternative was adopted, not by way of indica- ting an opinion, but in order to present to us the draft in a convenient shape, and that he was to add that the draft of the Letters Patent and form of consent had been sub- mitted to the Bishop of Sydney, who considers them unobjectionable.

In obedience to your Grace's commands we have the bonour to

Report

That we have taken into our consideration the various Patents referred to, the judgments of Sir John Dickenson and Mr. Justice West in the Supreme Court at Sydney, and the letter of the Bishop of Sydney's legal adviser, Mr. Gordon, and the statute 8 Will. 4th, No. 5, entitled "An Act to regulate the temporal affairs of churches and chapels of the United Church of England and Ireland in New South Wales." That we do not find it necessary for the purpose of tendering our advice to your Grace, as to the language in which the Patent of the Bishop of Goulburn ought to be expressed, to offer any opinion as to whether the judgments delivered by Sir J. Dicken. son and Mr. Justice West do or do not contain an accurate exposition of the great and difficult constitutional questions of law and prerogative with which they deal in a case prima impressionis. Because in the important appeal now pending before the Lords of Her Majesty's Privy Council (in which Mr. Long, a clerk in the diocese of Capetown disputes the authority of the Bishop of that See), the whole question of the authority conferred by the Crown's Patent upon Colonial Bishops will probably undergo full dis- cussion before, and be ultimately decided by, that high tribunal, and also because in our judgment, by the adoption of the third alternative suggested in the letter of Sir Frederic Rogers, the authority of the Crown, the rights in this matter of the Bishop, and the privileges of the Colony may be preserved unimpeached.

"so far as the same We recommend, therefore, that the Patent of the Bishop of Goulburn be made out according to precedent, with the additional words of qualification

can be exercised consistently with such law or laws as may for the time being be in "force in our Colony of New South Wales," which words are inserted in the draft submitted for our perusal.

We have suggested some alterations in the wording of the draft, in themselves trifling, but which conduce to legal accuracy of expression.

We presume that care will be taken to issue contemporaneous Letters Patent defining, de novo, the limits of the diocese of Sydney, the necessity for which was pointed out in the report of the Law Officers on the creation of the diocese of Ontario out of that of Toronto.

His Grace the Duke of Newcastle, K.G.

&c.

&c.

&c.

We have, &c.

(Signed)

WILLIAM ATHERTON. ROUNDELL PALMER. ROBERT PHILLIMORE.

No. 139.

(NEVIS AND VIRGIN ISLANDS.)

QUEEN'S ADVOCATE to COLONIAL OFFICE.

Doctors' Commons, October 13, 1862. MY LORD DUKE,

I AM honoured with your Grace's commands, signified in Sir Frederic Rogers' letter of the 6th June last, stating that he was directed to request that I would furnish your Grace with my opinion on an Act passed by the Legislature of the Island of Nevis, entitled "An Act to enforce Church Discipline," and also on an Act passed by the Legislature of the Virgin Islands, entitled "An Act for the better enforcing Church Discipline."

He was also pleased to enclose a copy of an Act passed by the Legislature of St. Kitts, which is alluded to in the correspondence relating to the Nevis Act, and which is rightly stated to have received Her Majesty's assent, and to state that the principal difference between these two Acts now forwarded appears to be that the Nevis Act omits all mention of appeal, while the Virgin Islands Act provides for an appeal to the Queen in Council. That it is usually considered incorrect in Colonial Acts to make a peremptory provision of this kind, it being held that the right of receiving such appeals from any Colonial court belongs to Her Majesty of right, and that it resta with Her Majesty in Council and not with any Colonial authority to declare whether and under what conditions that appeal shall be entertained. That what is usually inserted is a saving or recognition of Her Majesty's rights in this respect. And that your Grace would be glad to learn from me whether these Acts can properly be confirmed, and whether in the absence of any specific provision an appeal would lie to the Privy Council under the Nevis Act, and whether (in that case) an appeal clausе should not be expunged from the Virgin Islands Act.

In obedience to your Grace's commands, I have taken these two Acts and the questions submitted to me into consideration, and have the honour to

Report

That it appears to me that a very serious embarrassment may arise in the adminis. tration of the ecclesiastical discipline of the Church of England if this legislation of Nevis and the Virgin Islands should receive the assent of the Crown.

It is true that such embarrassment already in part arises from the statute in the same matter passed by the Legislature of St. Kitts, which I am informed has received Her Majesty's sanction. I venture, however, to think that the provisions contained in Her Majesty's Letter's Patent of the 21st August 1842 upon this subject could not have been borne in mind by Her Majesty's Government at the time when the Statute of St. Kitts received the sanction of the Crown.

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In those Letters Patent it is provided that "the said Bishop of Antigua and his "successors shall be subject and subordinate to the Archiepiscopal See of Canterbury, "and to the Most Reverend Father in God John Bird by Divine Providence Arch- bishop of Canterbury, and his successors, in the same manner as any bishop of any "see within the province of Canterbury within our kingdom of England is under the authority of the Archiepiscopal See of the province of Canterbury and the Archbishop "thereof.'

It is further provided therein that from any sentence pronounced by the Bishop of Antigua, it shall be lawful for the party sentenced "to appeal to the said Archbishop "of Canterbury, or his successors, who shall finally decide and determine the said "appeal."

In the proposed Statute of Virgin Islands this appeal is by implication taken away and another substituted for it.

In the proposed Statute of Nevis all mention of any appeal is omitted. It may be a nice question of law whether it was competent to the Crown, not only give the appeal to the Archbishop of Canterbury, but to make that appeal final. I incline to the opinion that it was competent to the Crown to do so. But in any event it cannot be right that the authority of the Archbishop, both recognised by the oath of canonical obedience taken by the Bishop of Antigua and also distinctly conferred by Her Majesty's Letters Patent, should be entirely abrogated.

0 16278.-166.

25.-2/86.