CO885-(10-11) — Page 589

3911.

No. 464.

(BERMUDA.)

QUEEN'S ADVOCATE to COLONIAL OFFICE.

MY LORD DUKE,

Temple, April 18, 1867. I AM honoured with your Grace's commands, signified in Mr. Elliot'a letter of the 13th instant, stating that he was directed by your Grace to transmit to me for consideration a copy of a Despatch from the Officer Administering the Government of Bermuda, reporting the circumstances of the refusal of the parishioners to admit the Rev. C. A. Jenkins to take possession of the living of Smith's to which he had been presented to the Bishop of Newfoundland by the Governor, with the sanction of the Secretary of State, for institution as rector, and the subsequent legal proceedings adopted by Mr. Jenkins to vindicate his position.

No. 19, 4 March 1867.

Lord Carnar-

VOD, No. 17, 2 November

Mr. Elliot was desired to enclose copies of the previous correspondence on this subject, which would, he stated, put me in possession of the facts of the case.

He was also pleased to enclose a recent Act (No. 2 of 1865) and a volume of 1866,

Gor., No. 22, Bermuda laws, from which (pp. 10, 25, 33, 64, 162, 540) it would be seen that there 31 December has been little more legislation than is required to secure to the clergy their emolu- 1866

Lord Carnar- ments; and Mr. Elliot was directed to request that I would furnish your Grace von, No. 6, with my opinion as to the course which ought to be pursued by the Government in February 1, this matter.

In obedience to your Grace's commands I have considered this case and the papers submitted to me, and have the honour to

1867.

Gov., No. 12, 15 February.

Report

ماد

That I agree with the opinion expressed by the Attorney General of Bermuda in

this matter.

I think there has been a miscarriage of justice in the decision of the Court of Chancery upon each of the grounds mentioned by the Attorney General, and that the decision of the Judicial Committee of the Privy Council in the cases of Long v. Cape Town and Colenso v. Cape Town were inapplicable to and erroneously supposed to govern this case.

1. It would appear from the Bermuda statutes that the Church of England bas been a legally recognised church established in that Colony since the year 1693; and the Attorney General seems to me correct in stating that "the parochial system is "older than the existing civil constitution of the Colony." No legal church establish- ment existed in the Colony of the Cape of Good Hope.

2. The Acts of institution and induction are not Acts of contentious or coercive jurisdiction such as the Judicial Committee in the cases referred to said required legislative authority for their enforcement. They are administrative Acts of a very different legal character.

3. The Attorney General also states that "in two cases, and subsequently to it in "several Acts of the Bermuda Legislature (sic) have spoken of the bishop of the diocese to which by Her Majesty's Letters Patent the ecclesiastical jurisdiction of "these islands is, or shall be, attached."

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I have not seen these cases, and I do not find these Acts in the volume of statutes sent with these papers; but if the statement of the Attorney General as to these points be correct, it much strengthens his opinion.

4. I collect, also from his statement, that while the statute is silent as to the appointers or patrons of livings in Bermuda, invariable practice has recognised that right of appointment is vested in the Crown.

5. It is suggested in the second letter of the Attorney General that the Chief Justice is reported to have said that if the Governor had collated, as he was in the habit of doing previously to the creation of the bishopric, under the powers conferred by former commission, that the writ in this case would have been granted. I should think it doubtful whether the Chief Justice did make this remark, but I with

agree the Attorney General that it was not competent to the Governor to take this course. which was not warranted by his commission, and was opposed to his instructions.

o 16978.-104.

25.-5/86.

PUBLIC RECORD OFFICE

Reference :-

THC.O. 885

11 PUBLIC RECORD OFFICE, LONDON

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

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