CO885-(11-13) — Page 47

388.

PUBLIC

RECORD OFFICE

CO. 885

Reference :-

11 PUBLIC RECORD OFFICE, LONDON

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

No. 751.

(GENERAL.)

LAW OFFICERS to COLONIAL OFFICE.

Mr LORD,

Temple, April 12, 1872. We are honoured with your Lordship's commands, signified in Mr. Holland's letter of the 6th April instant, stating that he was directed by your Lordship to state that it was not the intention of Her Majesty's Government to advise the Crown to fill up certain vacancies which had recently arisen in Colonial dioceses by the appoint- ment of bishops by Letters Patent (which would have the effect of recognising and keeping alive existing dioceses), though when requested by the Archbishop of Canter- bury they would be prepared to advise Her Majesty to issue a mandate in the form approved of by the Law Officers of the Crown, authorising the consecration in this country of a bishop, without assigning any territorial designation or sphere of juris- diction to such bishop.

2. That it had therefore become necessary for Her Majesty's Government to be informed of the precise legal position of the Crown with respect to certain Letters Patent which had been granted by Her Majesty under authority of Parliament or otherwise constituting dioceses in the Colonies and appointing bishops thereto, and especially what powers, if any, Her Majesty has of revoking such Letters Patent.

3. That it was not proposed in that case to deal with those Letters Patent which had been issued by the sole authority of the Crown in Colonies possessing at the time independent legislatures, and which, therefore, were assumed to be invalid under the decision of the Privy Council in the Bishop of Natal's case, but with those Letters Patent only which had been issued in Crown Colonies by the authority of the Crown, or in other Colonies by virtue of the authority of the Imperial Parliament; that the validity of those two classes of Letters Patent appeared to be distinctly recognised in the judgment of the Privy Council in the Natal case, and Mr. Holland was pleased to say that he was also to refer us in confirmation of that view to our report, undated, received in your Lordship's office in February last, affirming the validity of the Letters Patent constituting the diocese of Jamaica; and that

4. With respect to Letters Patent establishing dioceses in Crown Colonies, he was to state that the two sees of Mauritius and Hong Kong "are now vacant," and it was not proposed to appoint by Letters Patent bishops to fill the vacancies; but it was a question for consideration whether, under those circumstances, the existing Letters Patent should not be revoked; and that

5. It might be that no specific inconvenience would arise from leaving them unre- voked with a distinct understanding that they would not be again acted upon, but the existence of a latent legal corporation by the side of an actual unincorporated bishop seemed to be an anomaly which might give rise to unexpected inconvenience and to doubts.

That (6) assuming that Her Majesty's Government should determine to advise Her Majesty to revoke those Letters Patent, the further question arose how such revoca- tion could be properly effected, and it had occurred to your Lordship that the decisions in the Privy Council proceeded upon the supposition that where the prerogative of the Crown extends to legislation the creation of a bishop is legislation, and that therefore the Letters Patent, being in truth a law, can be revoked by a similar law; that is, in the case of Hong Kong, Mauritius, and other Crown Colonies, by an Order in Council. That (7) with respect to Letters Patent passed under authority of Act of Parlia- ment the case would appear to present more difficulty.

That, if the view above suggested was correct, namely, that the creation of a bishopric is in the nature of legislation, it would seem to follow that when, in a con- stitutionally governed Colony, a bishopric is once established, the Crown cannot by prerogative abolish it; and it is on that account, perhaps, that Acts of Parliament have been passed similar to 5 Vict. soc. 2, cap. 4, enabling the Crown to establish new dioceses where such bishoprics already existed, and where, therefore, the Crown could not, without the authority of Parliament, intervene.

8. That in support of that view it would be observed that by the Act 5 Vict. sec. 2, cap. 4, special power is given to Her Majesty to revoke certain Letters Patent, but

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