CO885-(11-13) — Page 295

PUBLIC RECORD OFFICE

Reference :-

MY LORD,

No. 72.

(JAMAICA.)

LAW OFFICERS to COLONIAL OFFICE.

Lincoln's Inn, 21st October 1875. We are honoured with your Lordship's commands, signified in Mr. Malcolm's letter of the 15th September ultimo, stating that he was directed by your Lordship to transmit to us copy of a correspondence with the Governor of Jamaica in reference to S. of S. a question which has arisen in that Colony as to the nature and extent of certain powers vested by law in the Governor and the Bishop of Kingston. That we would observe that the questions to be decided are-

No. 31,

11 Mar.1875. Gov. No. 47. 21 Apr. 1875. Gov. No. 99, 24 July.

Page 129.

1. That, whether in consequence of the powers conferred by section 1 of Law 30 of 1870 (a copy of which was sent therewith) a Constitution" of the Diocesan Synod of Jamaica, declaring every clergyman irremovable except under certain con- ditions, not complied with in the present case, overrides the provisions of an Act of the Jamaica Legislature, 28 Vict. c. 43. (sent therewith), which declares stipendiary curates Page 891. to be removable at the discretion of the Governor and Bishop.

2. That, whether under the provisions of the Imperial Statutes 5 Vict. c. 4. s. 3. and 31 and 32 Vict. s. 1. power still remains to the Bishop to direct such curates to perform duties other than those for which they were appointed, under pain of forfeiture of the sum payable to them under such Acts, or whether the Bishop has not, by acquiescing in the Constitution, parted with such power.

That it is further to be considered whether the Attorney-General of Jamaica is correct in the view he takes of the effect of this judgment upon the powers of the Synod, whether in effect it is true that in pursuance of it it will be "competent for the Diocesan Synod to modify or abrogate any provision whatever contained in any of the former Acts relating to the clergy."

Mr. Malcolm stated that your Lordship does not desire to interfere further than he is obliged to do with questions of discipline and the internal administration of Church affairs in the Colony; but, if the views of the Attorney-General of Jamaica are correct, it may be necessary to take steps with the view of modifying the effect of this judgment.

Mr. Malcolm was therefore to request that we would favour your Lordship with our opinion upon the two questions stated above, and also upon the following points; namely,-

1. That, whether the anticipation of the Attorney-General of Jamaica in his letter of the 21st July as to the effect of the judgment of the Supreme Court in the case of the Rev. Mr. Key are, in our opinion, valid.

2. That whether, in our opinion, the Judicial Committee of the Privy Council will allow an appeal in the case, and, if so, in what form application for leave to appeal should be made.

In obedience to your Lordship's commands we have taken these papers into con- sideration, and have the honour to

That we are of opinion-

Report

(1.) That the constitution or canon of the Diocesan Synod of February 1871 does not override the Jamaica Act of 28 Vict. c. 43.

1

(2.) The Bishop still has the power under the provisions of the Imperial Statutes of 5 & 6 Vict. c. 4. s. 3. and 31 & 32 Vict. c. 120. s. 1. to direct stipendiary curates to perform duties other than those for which they were appointed. Our ground for this conclusion is that the provisions of Act No. 30 of 1870 are themselves void and inoperative in so far as they are "repugnant' to the provisions of any Act of Parliament extending to the Colony (28 & 29 Vict. c. 63. s. 2). If, therefore, it was intended by the Act No. 30 of 1870 to empower the Synod to override the provisions of 5 & 6 Vict. c. 4. and 31 & 32 Vict. c. 120. the Act must pro tanto have failed in its effect, and if this be so it was equally beyond the power of the Colonial Legislature to enable the Bishop to divest himself by agreement of the authority conferred by an

1916.-72. 25.-12.84.

CO.

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

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12 PUBLIC RECORD OFFICE, LONDON