CO885-(2-3) — Page 232

PUBLIC RECORD OFFICE

Reference -

711.C.O.885

3PUBLIC RECORD OFFICE, LONDON

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

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had lost the power of creating an Ecclesiastical Corporation whose status the Colony could be required to acknowledge.

It seems to follow that in their Lordships' opinion the Colony of Natal ceased to be a Crown Colony after the issue of the above Letters-Patent, to which in a previous part of the Judgment they had expressly referred, as constituting in Natal Legislature separate" from the Cape of Good Hope.

a

The reason of this opinion is not given, and is therefore a matter of conjecture. But it appears on examination that the instrument creating the Legis- lative Council of Natal does not contain the clause usually inserted in such instruments, by which the Crown's right of legislation by Order in Council, or with the consent of Parliament, is expressly reserved.

It is believed that, when the Natal Letters-Patent of 1847 were framed, no suspicion was entertained that the Crown would be held to have parted with any of its powers by establishing a Crown Council, and that the clause of reservation was omitted as mere surplusage. At any rate it was omitted, and

it is possible that, in the absence of that clause, the Judicial Committee considered that by delegating the power of legislation, Her Majesty, in fact, abandoned or suspended it, and with it the attendant power (as it is considered) of giving diocesan status or jurisdiction within the Colony of Natal.

(4.) The following Bishoprics were invalid in their creation, but their present or prospective existence has been assumed in Imperial or local laws :—

Nova Scotia

Querve

Torontu Montreal..

Huron

Ontario..

Fredericton (N. B.)

Sydnetle

Brisbane (Queensland)

Goulburn

Tasmania

Cape Town

Graham's Town..

Malbourne

Imperial.

31 Geo. III, o, 31, s. 40.

69 Geo. I11, c. 60, s. 3.

59 Geo. Ill, c, 60, s. 8.

Colonial.

Act of January 19,

1858.

Revised Stat, c.107.

f8 Wm. 4, No. 5,

. 19, 20, &c.

22 Vic., No. 20.

No. 80, of 1860.

Act of Nov. 30,1854.

It is, however, to be observed that these Imperial and local laws do not constitute, but take for

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granted the previous constitution of Diocesan Bishoprics. The present Judgment shows that this was erroneously taken for granted, and that the course of Imperial and local Legislation has been based on a misapprehension. There appears, there- fore, no certainty that the Judicial Committee in any case hereafter brought before them would hold these Acts to have created that which they erroneously presuppose; and, if not, all the Bishop- ries included in the last preceding list would, at least, run the risk of being pronounced ill-created.

(5.) The case of Rupert's Land is peculiar. The Bishopric is established in what is called the Hud- son's Bay territory. There is no independent - Legislature, unless the Hudson's Bay Company is Ì__

But it is apprehended that the country is not subject t Crown Legislation, and, consequently, that the establishment of the Bishopric is illegal.

one.

On the whole it may be said generally that the embarrassments arising out of this Judgment affect twenty-five Colonial Bishoprics, being those of North America (except, perhaps, the Colony of British Columbia), Australia (except Western Australia), New Zealand, and South Africa.

11. It follows to consider what are the inconve- niences to which the Bishops, Clergy, or Laity of

the Church of England would be subjected in these Colonies in consequence of the present Judgment.

1. The Act 59 Geo. III, cap. 60, sec. 4, provides that a person ordained by a Bishop not having "Episcopal jurisdiction" over a defined district, shall (with certain immaterial exceptions) not be capable in any way or on any pretence whatever,

of at any time holding any parsonage or other Ecclesiastical preferment within Her Majesty's dominions," "or of being a stipendiary Curate or or in any Chaplain, or of officiating at any place manner as a minister of the Established Church of England or Ireland." If these twenty-five reputed dioceses have not been created, it follows that the Bishops have not the required Episcopal juris- diction," and that the ministrations of a large and almost undistinguishable body of Clergy now per- forming their functions throughout the Empire have been, are, and will be questionable or illegal. What the effect of this may be on existing marriages is matter of conjecture.

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