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PUBLIC RECORD OFFICE

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PUBLIC RECORD OFFICE, LONDON

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ports of the "Out Islands" with any other object than that of making an unneutral and therefore unlawful, use of a neutral port.

I also humbly agree with his Grace as to the general inexpediency of vesting any discretion in subordinate officers upon these important questions of International law, but it seems impossible to avoid doing so to a certain extent in the particular circum- stances of these Islands. I venture to doubt the expediency of formally, or at all, re- opening the general question of the proclamation with either belligerent; the law is well known to, and ought to be observed by, both. It might perhaps have been fairly understood that cases of such emergency as sudden illness or dearth of provisions must of necessity be treated as exceptions to the rule, though stress of weather alone happens to be mentioned. But as to these points no harm can, and some advantage probably will, ensue from such a supplementary proclamation as his Grace suggests, while, with reference to the graver question, I think it would be desirable to publish distinctly the prohibition to anchor in the "Out Islands" ports, except with the special leave of an officer to whom the Governor had delegated his authority in this matter, and who would be instructed to exercise his discretionary powers with reference to the presence or absence of those circumstances of unavoidable necessity which have been referred to.

The Earl Russell.

I have, &c. (Signed)

ROBERT PHILLIMORE.

8545

MY LORD DUKE,

No. 213.

(SOUTH AUSTRALIA.)

LAW OFFICERS to COLONIAL OFFICE.

Temple, September 1, 1863. We are honoured with your Grace's commands, signified in Sir F. Rogers' letter of the 15th July ultimo, stating that he was directed to enclose the copy of the judgment of the Lords of the Judicial Committee in the case of Long v. the Bishop of Cape Town. That the delivery of this judgment will enable us to proceed with the consideration of the question respecting the Letters Patent of the Bishop of Adelaide. which by your Grace's directions were referred to us in Sir F. Rogers' letter of the 4th February 1863.

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

Report

That we are not prepared to advise your Grace that the Letters Patent hitherto granted to the Bishop of Adelaide can with propriety be altered as suggested by his Lordship; that is to say, by incorporating, as it were, into the Patent the agreement or compact to which reference is made. Such a Patent would be without precedent, and would, we think, in principle be very objectionable. And, apart even from these considerations, we venture to express a grave doubt whether, in the present state of the Colony itself and of the Church in the Colony, it would be right that the Crown should so bind the hands of the successors of the bishop in a matter which many cir- cumstances connected with the future progress both of the Colony and of the Church may render it desirable to leave open for further consideration.

We are, moreover, of opinion that for all present purposes the object which the Bishop of Adelaide has in view may be attained (so far as it would by any means be legally attainable) without having recourse to the anomalous and inconvenient course which his Lordship has proposed.

Upon the general subject involved in this case we take occasion to observe that it would be expedient to omit from all future Letters Patent which may be issued for this and every other Colonial bishopric similarly circumstanced all mention of powers the grant of which (it must now be considered) exceeds the limits of the prerogative of the Crown, and that it will be desirable to adopt a simpler form of Patent, limited to the nomination of a particular person to be consecrated bishop of the see, and to conferring upon him and his successors, when the see is first erected, the legal status of a corporation sole, together with such authority as, cousistently with the laws of the particular Colony, he may be enabled to exercise, so far as by the laws or customs of the realm or of the Anglican Churches the exercise of such authority may be held We think that under such Letters to require any sanction on the part of the Crown. Patent, or even under the present Letters Patent, it would be competent to any Colonial bishop to enter into a consensual compact of the tenor and character which is described in these papers so far as to regulate as between the bishop and the clergy and the laity concurring therein, all such matters as in a church not established by law are left open to voluntary organisation. And we think that even if new or supplemental Letters Patent were now granted in the form desired by the Bishop of Adelaide, they would not have any legal operation whatever, so as to alter or affect the rights or obliga- tions of any member of the Anglican communion in South Australia who might not be a voluntary party to the consensual compact, while on the other hand, by the very attempt to bind the bishop in all cases to the exact terins of that compact they might introduce great difficulties, confusion, and uncertainty into his legal relations with any such dissentient members of the Church, and might even imperil, or at least bring into controversy, his title to any property heretofore placed in trust for the endow- ment of the existing see.

In support of this opinion we desire to draw your Grace's attention more particularly to those parts of the judgment recently delivered by the Judicial Committee of Her

U 16278.--030. 25.-6.