CO885-(10-11) — Page 279

PUBLIC RECORD OFFICE

Reference :-

C.O. 885

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ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO

PUBLIC RECORD OFFICE, LONDON

See Letters

Patent.

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shall expressly bind himself to conform in the execution of that office to the regu- lations from time to time made by the synod in respect of it. If not absolutely, within what limits can the bishop give effect to such a resolution? And

3. Do the papers now transmitted enable us to indicate to the bishop what steps will be necessary to relieve the synod from the imputation of illegality which, in the opinion of the Judicial Committee, at present attaches to some of their procedings?

Next, Sir Frederic was to draw our attention to the following sentence in the bishop's letter: "I trust that your Excellency will feel that I am entitled to ask "whether the document which has been placed in my hands by the Crown is in all respects, as it confessedly is in some, an illegal instrument; whether any of and, if so, which of the provisions are valid in law; whether it conveys any rights, title, authority to the bishop of this diocese and the metropolitan of this province

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or not?"

Sir Frederic was to request that we would advise your Grace what answer should be given to these questions, and was directed to observe that, as a large number of Colonial bishops act under Letters Patent, framed in terms substantially identical with those of the Bishop of Capetown, your Grace is desirous of obtaining in answer to the above questions such advice as may enable your Grace to inform other bishops respecting the jurisdiction, whether diocesan or metropolitan, which may be safely exercised in virtue of these Letters Patent.

In particular, Sir Frederic was to enclose an extract from certain Letters Patent which confer in terms upon the Bishop of Montreal metropolitan jurisdiction over the bishops and clergy of the province of Canada, and to ask whether any, and, if so, what metropolitan pre-eminence or jurisdiction is conveyed by these Letters Patent, and Sir Frederick observed that he need hardly add that these Letters Patent (of which all the operative part is contained in the annexed extract) were issued long after the establishment of representative government in Canada, and Sir Frederic was to add (though he observed it does not appear material to the present question) that the case of Canada differs from that of most other Colonies, as the jurisdiction of bishops is exercised under the provisions of two local Acts (of which Sir Frederic enclosed copies), and that Canadian bishops are now not appointed by Letters Patent, but simply conse crated in obedience to a mandate under the Royal Sign Manual and Signet.

In obedience to your Grace's commands we have taken this case and the questions submitted for our opinion into consideration, and have the honour to

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That the first question submitted to us by your Grace divides itself into two parts. We are asked, first, in the "absence of any express legislative authority, is it lawful "for the Bishop of Cape Town, or for any other metropolitan or diocesan bishop in "the Colonies, with or without the consent of the Crown, to summon a meeting of clergy and laity in communion with the Church of England, under the designation of provincial or diocesan synode, or under any other designation, for the purpose of deliberating respecting matters affecting the welfare of the province or diocese." To this part of the question we answer that (assuming there to be no local law to the contrary) we think it would be lawful for a Colonial bishop or metropolitan, without the consent of the Crown, and without express legislative authority, to summon meetings of the clergy and laity of the Church under the designation of provincial or diocesan synods, or any other designation, for the purpose of deliberating on matters concerning the welfare of the Church. The members of the Church of England in a Colony where that Church is not established by law have, in our opinion, the same liberty of assembling for any lawful purpose which is possessed by members of any other religious denomination.

The second part of the first question asks us as to the power possessed by such a meeting" of passing rules or resolutions binding on such members of their communion "as may expressly or by implication acknowledge the authority of such a synod."

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To this question we think the judgment of the Judicial Committee of the Privy Council furnishes the answer (p. 14). "The Church of England, in places where there " is no church established by law, is in the same situation with any other religious body, in no better but in no worse condition, 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 upon those who, expressly or by implication, have "assented to them." And we answer this second branch of the question also in the affirmative, provided always, that the rules or resolutions so adopted are not them- selves in any respect contrary to law.

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The second question is as to the power of the Bishop of Cape Town to give effect in futuro to a resolution of a meeting so called, the purport of such resolution being that unless he

no person ought to be admitted to any religious office or cure of souls bind himself to agree to the resolutions passed at such meeting.

We answer that we think it would be competent to the bishop to adopt any such resolution as the rule of his own conduct with respect to matters, as to which he has by law a free and unfettered discretion. He may, for example, decline to confer Holy Orders on persons unwilling to be bound by the resolutions passed at such meetings without being liable to any interference on the part of any oivil court.

With respect to the power of the bishop to make assent to such resolutions, the condition of licenses, admissions, or institutions of clerks to spiritual offices, benefices, or cures, we think that a distinction must be made according to the nature of the office, benefice, or cure.

If there be no previous contract or trust, express or implied, between the bishop and the patron or the bishop and the presentee, and if the office, benefice, or cure in question has not been founded, endowed, or established by any positive law or enact- ment, or by any other mode of legal foundation inconsistent with the exercise in that respect of a free and uncontrolled discretion by the bishop in these circumstances, we think it would be competent to the bishop to make the license, admission, or institution of a clerk to a spiritual office benefice, or cure, conditional on his assent to such resolutions.

But if the bishop be bound with respect to such benefice or cure by any antecedent contract or trust, or by the terms of any legal foundation, of which assent or obedience to such resolutions forms no part, he cannot, in our opinion, under such circumstances lawfully exact from any clerk entitled to claim from him license, admission, or institu- tion to such office, benefice, or cure, that such clerk should, as a condition of receiving such license or institution, agree to be bound by such resolutions.

The third question relates to the suggestion of measures to be taken to relieve the assembly, called the synod of the diocese of Cape Town," from the illegality "which,

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in the opinion of the Judicial Committee of the Privy Council, at present attaches to some of its proceedings."

To this we answer that it appears to us there has been a mistake, in which the bishop has participated, as to the precise effect of the judgment of the Judicial Committee upon this point.

The court did not decide that it was unlawful for the bishop with such clergy and laity of the church as might concur in any scheme or arrangement for that

purpose to meet in a voluntary synod, and to pass rules and regulations. by which those who assented to them might be bound, but only that some of the particular acts and resolu- tions of the synod in question had exceeded those lawful limits, and that Mr. Long, the appellant in that case who was not a party, and had not assented to those resolutions, could not be compelled to give notice of any meetings of such synod, or of any proposed elections thereto or to attend it, or to be bound by its proceedings. Not only was Mr. Long not an assenting party to the proceedings of the synod, but an express contract or trust had been subscribed between him and the bishop into which the recognition of any such synod did not enter.

That contract was, in substance, that the laws of the Church of England existing and in force when it was made should govern the mutual relations of the bishop and Mr. Long; and the Judicial Committee ruled that such a synod as he was ordered to give notice of was not recognised by the then existing law of the Church of England.

The portion of the judgment which relates to the illegality of certain acts of the synod is in these terms (p. 16):-"The synod which actually did meet, passed various acts and constitutions purporting, without the consent either of the Crown or of the "Colonial Legislature, to bind persons not in any manner subject to its control, and to establish courts of justice for some temporal as well as spiritual matters; and, in "fact, the synod assumed powers which only the Legislature could possess. Ther

can be no doubt that such acts were illegal."

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It is obvious that in this passage reference is more particularly made to those parts of the "acts and constitutions" of the first synod (the very term " corations seems to imply the assumption of some binding authority) which are mentioned in the paragraphs beginning ("various rules," &c., and "a consistorial court," &c.), at page 8 of the printed judgment.

The proper mode, as it seems to us, of relieving the assembly in question from the prejudicial effect of these errors in its past proceedings will be for some future meeting, with the concurrence of the bishop, to review all the acts of the former synods for the