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Gibson, then Bishop of London, empowering him to act in all respects by his commissaries as diocesan of the colonies, was personal, and was never obeyed nor held to be sufficient.
The jurisdiction of the Bishops of London in the colonies, on the foot of custom, is not established nor exercised effectually ; nor does anything appear further than that, upon the first setting-up a Virginia Company, they were recommended by the then Government to apply to the Bishop of London to assist them in sending some clergymen of the Church of England to reside in that infant colony.
Nothing more has passed since, than merely on a supposition that the Bishops of London had jurisdiction (of some sort or other) in the colonies; and so all the instructions to the governors have ordered them to give countenance to the Bishop of London's jurisdiction accordingly.
The jurisdiction, therefore, of the Bishops of London and all other ecclesiastical authority is out of the present question.
It seems to rest entirely on the Act of the 21st Hen. 8, called the " Act of Non-residence," to the penalty of which Mr. Barnard is liable whenever any person shall sue him for the same. He is liable to the penalty of £10 for every default.
The word " default" is defined by Bracton to be an omission of anything which ought to be done; if so, the penalty for every month's omissiou will fall heavily on Mr. Barnard in the course of every year's absence, and he may be sued for the amount of all the gross sum chargeable for every month's non-residence.
But if the word "default" does not mean omission, toties quoties, but a defect in the course of a year taken altogether, and legal conviction thereupon, then the penalty of £10 for such annual default would certainly be insufficient to enforce residence as is necessary, and Mr. Barnard will avail himself of the advantage.
But there seems a difficulty in complying with the request of the Governor, that his Majesty should grant fresh instructions to his governors in the colonies in cases of non-residence, to declare the living vacant, and to institute other rectors.
It is apprehended that his Majesty cannot empower any governor, by their authority under his commission, to deprive clergymen of their freeholds. His Majesty's supremacy is exercised in ecclesiastical causes, as well as in civil, in the same manner and with the same limitations; and his ecclesiastical courts and temporal courts can only deprive the subject on legal conviction of offences. His Majesty's judges are the keepers of his Majesty's conscience; they are answerable for the decrees they make, and it is the happiness and prerogative of his Majesty to judge no man's life or property in person.
If his Majesty, as supreme in all causes, ecclesiastical and civil, could by bis bare instructions authorize the inflicting of penalties, he might erect of his pleasure any sort of courts whatsoever, which he cannot; and, therefore, if the penalty of the 21st of Hen. 8 is insufficient in case of non-residence in the colonies, it should seem a proper object for the consideration of Parliament to find an effectual remedy; for the legality of deprivation in consequence of the royal instructions would certainly be called in question by the American clergy.
December 25, 1764.
(6.) Opinion of the King's Advocate, Sir Christopher Robinson, on a Marriage performed by a Methodist Minister in Newfoundland.
Doctors' Commons, March 3, 1817.
My Lord,—I am honoured with your Lordship's commands, signified in Mr. Goulburn's letter of the 21st ultimo, transmitting the copy of a despatch from Vice-Admiral Pickmore, Governor of Newfoundland, relative to the conduct of a Methodist minister in that colony in performing the marriage ceremony without a compliance with the formalities of the Church of England, and in opposition to the orders of the Governor, a clergyman of the Church of England being actually resident in the colony.
And your Lordship is pleased to request that I would take the same into consideration, and report to your Lordship my opinion, whether marriages so celebrated are legal and valid ; and if illegal, whether the person so celebrating them is liable to any and what penalties?
In obedience to your Lordship's directions, I have considered the same, and beg leave to refer to a report of the 11th of May, 1812, which I had the honour to make, jointly with the Attorney and Solicitor General, to the Secretary of State for the Colonial Department, on the subject of marriages in Newfoundland, in which the general principle of the law of England was stated, as requiring the celebration of marriage by religious ceremonies for the perfect regularity of the marriage contract.
In the case represented in these papers, the certificate describes the marriage to have been celebrated according to the form of the Church of England by George Cubit, Methodist minister, "set apart (as it is expressed in his pretended letters of orders) by the authority of four private ministers in connection with the conference of the people called Methodists"
It is not the case, therefore, of a person assuming ostensibly the character of a person in holy orders. But the question is, whether a marriage celebrated by a minister as above described, unconnected with local customs, or with any circumstances of special exception, is a legal and valid marriage?
The mere civil contract of parties which has constituted marriage in some countries has been considered not to be sufficient alone to perfect that relation by the ecclesiastical law of England; and I believe it may be stated, that there has not been any positive decision to the contrary in any Court.
The issue of parties cohabiting under such contract, alone, without subsequent espousals in facie ecclesise, has been held illegitimate. It has been determined, also, by high authority at common law, that the woman was not entitled to dower; and the conclusion is drawn from that case, in the words of the learned editor, "that neither the contract, nor the sentence of the ecclesiastical court (decreeing the marriage to be solemnized, without the actual celebration), was a marriage."
The terms in which the several Acts of Parliament in the reigns of Henry VIII. and Edward VL, and 12 Charles 2, c. 33, speak of marriage, further support the conclusion that no other form of mar riage than that by celebration in facie ecclesise has been considered to constitute a perfect and legal marriage in the contemplation of the law of this country.
The same construction has been put on marriages celebrated by ministers not ordained by episcopal ordination, even subsequent to the Toleration Act (i). The principle of that decision, also, is
(i) Haydon v. Oovld, 1 SalkeW, 119.
in some degree incidentally confirmed by a form of pleading in one case (i), setting forth, as a ground of prohibition to the proceedings of the ecclesiastical courts against the parties for incontinence, that the marriage in that instance had been celebrated under special exemptions granted to the conventicles by the Toleration Act, though the clause of the Toleration Act on which the suggestion was founded does not appear to be correctly recited.
It may be observed, also, that there has been a positive exemption of the same kind by Act of Parliament in Ireland, making the marriages of Dissenters in their own congregations legal.
On these grounds I am of opinion that the marriage described is not a legal and valid marriage.
On the other point, whether the person so celebrating marriage is liable to any and what penalties? I cannot advise that there could be any proceedings founded on the ecclesiastical law that would be applicable to the circumstances of this case. But it must be an offence, I conceive, of the nature of a misdemeanor, to assume public functions of this kind without authority, to the breach of public order, and to the prejudice of individuals; and I presume it might be punished as such by proceedings at law under the direction of the law officers of the settlement.
(7.) Joint Opinion of the King's Advocate, Sir Christopher Robinson, and the Attorney and Solicitor General, Sir John S. Copley and Sir Charles Wetherell, on the Duties of the Governor and Bishop of a Colony in collating and instituting to Benefices. 1825.
My Lord,—Having considered the statements contained in your Lordship's letter, transmitting the instructions of the Governor of Barbadoes, and the patent of appointment of the Bishop, and requiring that we would report thereon—
"Whether the collation to benefices, the granting marriage licenses, probate of wills, and letters of administration, continue vested in the Governor, in the same manner, and to the same extent, as before the erection of the new bishopric; or whether
(i) Hutchinson v. Brooksbanke, Levinz, part 3, 370.
that event has diminished, or altered, the power and duties of the Governor, in any of those respects; and especially that we will state what are the relative duties of the Governor and the Bishop, in collating and granting institution to benefices in the island, in the gift of the Crown."
In obedience to your Lordship's commands, we have the honour to report that we think the appointment of the Bishop has made no alteration in the Governor's power to grant marriage licenses, probates, and administrations; and we think the right of the Governor to collate to benefices in the gift of the Crown, as is done in England, in some cases of free chapels, is not affected by the power given to the Bishop to grant institution, which may apply to the patronage of private individuals. If there be no such patronage in private individuals, the inference from the terms of the Bishop's appointment will show, we apprehend, that it was the intention that he should collate in all cases, and if so, we think it proper to alter the instructions to the Governor, and direct him to present to the Bishop for institution.
Christopher Robinson. July 16, 1825. J. S. Copley.
(8.) Opinion of the King's Advocate, Sir Christopher Robinson, on the appointment of a Roman Catholie Bishop in Canada.
Doctors' Commons, February 21, 1820. My Lord,—In obedience to your Lordship's commands, I have considered the question proposed to me by your Lordship respecting the form of appointment of a Catholic Bishop in Canada, by direct authority of his Majesty, and I think it is one of very considerable difficulty. It has hitherto been avoided by the expedient of adopting, by Royal approbation, the coadjutor of the preceding bishop, nominated own futura suecessione, and consecrated in Canada under the authority of the Pope's bull. But it may be doubted, I think, whether that mode was consistent with the Royal prerogative before the cession of Canada, under the French law, or more particularly with the provisions of the statute 14 Geo. 3, c. 83, which permits in Canada the free exercise of the religion of the Church of Rome, subject to the King's supremacy declared and