CO885-(2-3) — Page 253

PUBLI RECORD OFFICE

Reference

C.O.885

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC-

COPYRIGHT PHOTOGRAPH-NOT TO

3 PUBLIC RECORD OFFICE, LONDON

Report d'ed

Nov. 18, 1861.

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and constitutional powers of Her Majesty, and may retrospectively annul any act done in the exercise of those powers.

By the same Act power is given to a General Assembly, and also to Diocesan Synods in Canada, to make ordinances which may be inconsistent with or defeat that which is done in the exercise of the Royal Prerogative. Thus, if new Bishoprics are created the same may be annulled or the Bishops dismissed by a Canadian General Assembly.

"If powers and authorities are expressed, to be conferred on such newly-created Bishops by the Crown's Letters-Patent, the same may be taken away or abridged, and the episcopal functions entirely altered by regulations of a Diocesan Synod or of a General Assembly. It is true that until (but in the meantime subject to) the exercise of its right of action by a General Assembly or Diocesan Synod, the prerogative of the Crown remains, but it is scarcely consistent with the dignity of the Crown to appoint Bishops who will be tenants-at-will to a popular Assembly."

And that a subsequent opinion contained the following paragraph:— "We would also point out the importance, when documents of this kind are to be prepared, of full information being given to the Law Officers of all the proceedings, acts, and resolutions which may have been passed in any Provincial or Diocesan Synods in Canada under the Colonial Act above cited, by which the Ecclesiastical Laws and Constitutions pre- viously in force in Canada may have been altered; because it might happen that provisoes or clauses now and hereafter legal on general principles might be rendered illegal in Canada by Synodical Acts, or at all events various doubts and difficulties may arise in connection with the subject."

And that your Grace appreciates the weight which is due to these observations, and that their importance has been recently illustrated by what has happened in another colony.

That the Letters-Patent of the Bishop of Sydney enable him to take cognizance of clerical delinquencies through a species of Court composed of clergymen; and that a Local Act of the New South Wales Legislature enables him to hear and decide upon such cases in person.

And that the present Bishop, having a cause of complaint against one of his clergy, proceeded against him in the manner provided by the Letters-Patent; but that the clergyman, however, disputed the legality of this mode of proceeding, and that the Supreme Court, before whom the case was brought, determined that the Crown was not competent by virtue of its prerogative to give ecclesiastical jurisdiction in New South Wales (a colony possessing representative institutions and responsible Govern- ment); that the Letters-Patent, so far as they profess to confer such juris- diction, were waste paper, and that the Bishop could only proceed against the clergyman under the local law, which he accordingly did with success; and that, whatever may be the legal propriety of this decision, it is certain that, except in a few colonies, the disciplinary jurisdiction conferred upon Colonial Bishops by the Royal Letters-Patent has never been found of much use, their real power being generally derived from the accident that the salaries of the clergy are only receivable so long as they act under the Bishop's license, which license may be withdrawn at will.

Sir Frederic Rogers also stated that, applying these considerations to the case of Canada, it appears that the existing form of Letters-Patent are inapplicable to the state of that colony:-

1. Because the form is that of donation, whereas the Bishoprics are now practically elective, and the real appointment rests not with the Crown but with the clergy and laity of the diocese.

2. Because the grant of jurisdiction by this instrument is of question- able validity at law.

3. Because that jurisdiction, even if legally valid, is probably incapable of being practically exercised.

4. Because the Bishops have in the local Act another source of jurisdiction of undoubted legality, which is, or may, by Diocesan regula- tions be made available in practice.

5. Because, under these circumstances, it will be competent to the Canadian Diocese by such regulations to over-ride and set aside the Royal grant and jurisdiction, an indignity to which (as observed by the Law Officers) the Royal authority ought not to be subject.

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6. And lastly, because the present mode of proceeding involves much liability to error in drawing instruments in this country, only avoided by an amount of correspondence which is better avoided; and that these difficulties appear to your Grace to be susceptible of a very simple solution

That in England, where the appointment of a Bishop really rests with the Sovereign, it has yet been thought advisable to retain a form of election by the Chapter of the different Dioceses, and that the authority of the Crown is exerted, not by appointing the Bishop, but by assenting to the election, and by requiring the Archbishop or other competent authority to proceed to confirmation, and, if necessary, consecration."

And that it appeared to your Grace that this mode of proceeding, if appropriate in England, where it has more or less the character of a legal fiction, would be much more appropriate in Canada, where it would repre- sent, or at least might be adjusted accurately to, the real state of things. And that your Grace would, therefore, propose to communicate through the Governor of Canada with the Metropolitan Bishop of Montreal, in order to arrange some form of proceeding on the English model, which would avoid the liability to inconvenience attaching to the present anomalous system.

But that before doing so, your Grace was desirous of obtaining from us such assistance as may enable you to submit the proposal to his Lordship in a definite form, which is free from legal objections.

And that your Grace proposed for our consideration the following mode of proceeding in case of the election to any Canadian Bishopric:-

1. Petition from the electors which, after reciting the creation and vacancy of the Diocese, the passing of the Canadian Act, and of the regulations made under that Aet which empower them to elect a Bishop, and the actual election in accordance with these regulations should request the Crown to assent to that election, and to take steps for giving effect to it.

2. Letters-Patent reciting the Petition, assenting to the election, directing the Metropolitan or other competent authority to confirm and

consecrate.

3. Confirination and consecration.

4. Signification of the same to Her Majesty.

And that if we should think that the course of proceeding to which this is an outline would not be open to any objection in point of law, and would issue in investing the Bishop so consecrated with all such power as is legally necessary to exercise his office under the Canadian Act, or at any rate that any deficiencies in the mode of proceeding could be supplied by regulations to be made in Canada, your Grace would forward the scheme for the consideration of the Canadian Ecclesiastical authorities, and would request them, having reference to their peculiar position and to the forms pursued in England (copies of which Sir Frederic Rogers stated should be forwarded to them), to frame, for consideration in this country, such forms of Petition and Letters-Patent, and such drafts of regulations respecting the mode of confirmation and consecration (the mode of consecration being of course that prescribed in the English Prayer Book), as would best serve the exigencies of their Dioceses, and might by increased simplicity avoid the necessity of protracted corre spondence, by which the preparation of Canadian Letters-Patent is otherwise likely to be attended.

And that your Grace would be glad therefore to learn from us — 1. Whether the proposed course of proceeding will, if the details are properly arranged, he unobjectionable and sufficient in point of law?

2. If so, whether the matter will be sufficiently brought under the consideration of the Ecclesiastical Authorities of Canada by a statement substantially similar to that which was submitted to us, or whether any further observations or cautions appear to us to be required in the very outset of the correspondence?

3. Aud, if the course is open to any legal objection, with what modifications (if any) it could properly be proposed for the acceptance of the Canadian Church.

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