CO885-(11-13) — Page 42

6569.

PUBLIC RECORD OFFICE

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C.O.

Reference :-

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11 PUBLIC RECORD OFFICE, LONDON

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13. But in considering the question it was probably material to observe that the existence of that diocese and bishopric of Jamaica had been recognised by Imperial Acts.

14. In 1825 the Imperial Act 6 Geo. 4. c. 88. recited that His Majesty had by His Letters Patent established the diocese, and authorised payment of the salary of the bishop from Imperial funds.

15. In 1842 the Imperial Act 5 Vict. sess. 2. c. 4. was passed, to authorize the subdivision of the diocese. It seemed to have been thought necessary to empower the Crown to subdivide the diocese, and for that purpose to revoke the Letters Patent constituting the diocese. Under authority of that Act the bishopric of Nassau was, in 1861, carved out of that of Jamaica, with powers of jurisdiction.

16. That he (Mr. Meado) was to refer us to the late Act, 31 & 32 Vict. c. 120., in which it would be observed that there was a special recognition of the Bishop of Kingston.

17. Under these circumstances he (Mr. Meade) was desired to request that we would favour your Lordship with our opinion whether the bishopric of Jamaica was unaffected by the judgment of the Judicial Committee in the Bishop of Natal's case, as possessing jurisdiction by Act of Parliament or otherwise, and whether the Colony of British Honduras now formed part of the diocese of Jamaica, and was subject to the juris- diction of the bishop of that diocese.

That he (Mr. Meade) was to add that an early answer would oblige, as it was desirable that your Lordship should be in a position to advise Her Majesty upon the British Honduras Act as soon as possible.

In obedience to your Lordship's commands we have taken the whole of the corre spondence in this matter into our consideration, and have the honour to--

Report.

We are of opinion that, having regard to the Statutes, 6 Geo. 4. c. 88., and 5 & 6 Vict. c. 4., the validity of the original Letters Patent of the Crown creating the diocese of Jamaica cannot be questioned by reason of Jamaica having at the time when they were issued representative institutions. Besides, the existing diocese of Jamaica, as we understand the case, has been constituted within narrower limits than the original diocese, in virtue of Letters Patent issued under the powers conferred upon the Queen by the Imperial Statute, 5 & 6 Vict. c. 4., and which were recognised as valid by the Act of the Legislature of Jamaica, 22 Vict. c. 23,, and we are of opinion that these Letters Patent are valid, and that the Colony of Honduras forms part of the diocese of Jamaica under the existing Letters Patent, and is subject to the ecclesiastical jurisdic- tion of the bishop of the diocese of Jamaica.

The Right Hon. the Earl of Kimberley.

We have, &c. (Signed)

J. D. COLERIDGE.

G. JESSEL.

T. TWISS.

No. 746.

(CANADA.)

LAW OFFICERS to WAR OFFICE.

FURTHER CASE.

The following Memorandum, by the direction of the Secretary of State, is placed before the Law Officers for their consideration.

It is asserted in the Law Officers' Opinion of the 19th January 1871,* that the Secretary of State acquired the defensive works in the Dominion of Canada without any sanction

of the Imperial Parliament, and hence that a Local Act only would be sufficient to transfer those works from the Imperial to the Colonial authorities.

This assertion, or the conclusion that is here drawn from it, does not meet the difficulty or answer the objection that might be urged, that a transfer so made would be "unconstitutional in the sense attributed to the word by the late Sir James Mackintosh in 1816. The opinion ought not, therefore, to be accepted without further investigation.

The title of the Crown to Canada is, as to part, by Settlement, and as to other parts, by conquest and cession from France under the Treaty of Paris in 1763. This distinc- tion will be sufficiently noticed by tracing the consequences that result from a title by conquest. In arguing that Lord Clarendon was guilty of treason for having advised the King to cede Dunkirk to France, the Commons rested mainly their case in 1663 on these two grounds :-

Vol 6.

1st. That the place was an acquisition by arms, and therefore not alienable by the St, Fri. p.

339.

of May 13,

Crown alone.

2nd. That the Commons had voted the subsidy for the maintenance of the works and Vol 5, Sts. garrison by the 13 Car. 2 (St. 2) c. 3., and hence their sanction was needed for the Real, p. 326. cession.

This sale (said Sir James Mackintosh) was reprobated at the time, and has been His speech justly censured ever since. And it deserves particular notice (he continues) that this condemnation occurred before the regular habit of a parliamentary appropriation to Droits of specific services had been adopted, when the Crown defrayed the whole expense of the Crown, Government out of the general revenue, without rendering any account of its particular distribution, unless either upon a charge against a Minister, or as a reason for a demand of further supply."

Looking at the present question in its constitutional aspect under these two divisions, it is difficult to come to the conclusion that the sanction of the Imperial Parliament

is not needful for the protection of the Administration making these transfers.

I. For, first the Crown has hitherto made voluntary grants of Canadian lands with the sanction of Parliament. Thus, before the Clergy Reserve Grants were made under the authority of the Imperial Act (31 Geo. 3. c. 31. a. 36) a message was sent down to Parliament that the Crown desired to make such grants, and the sanction of Parliament was obtained by statute. Had it been competent for the Crown, either alone or with the sanction of the local Legislature to divert the rights of the Imperial Parliament, that course would no doubt have then been taken, for prerogative powers in 1791 were exercised more freely than at the present date.

II. And further as the public money (to be reckoned as a vast expenditure) has been voted by Parliament and spent by the Crown on the erection and armament of these works, the case is brought under the second objection urged by the Commons in 1663, and by Sir James Mackintosh with so much force in 1816. In the local Acts the Secretary of State is named as a trustee for Imperial interests, and if this be so, surely he cannot dispose of the corpus of the public property without the express sanction of the Imperial Parliament.

In such a transaction, it is suggested that the Colony must be dealt with, if not as a foreign, yet as a friendly State, having separate pecuniary interests and responsi- bilities. If part of dominions of the Crown be ceded, then the equivalent for this cession may become a matter of treaty or arrangement, in which Parliament should

• No. 683.

1816, on the

▸ 16278,-880 25.--5/86.