in some degree incidentally confirmed by a form of pleading in one case (1), 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.

CHRIST. ROBINSON.

(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

(1) Hutchinson v. Brooksbanke, Levinz, part 3, 376.

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.

July 16, 1825.

CHRISTOPHER ROBINSON.
J. S. COPLEY.
CHARLES WEtherell.

(8.) OPINION of the King's Advocate, SIR CHRISTOPHER ROBINSON, on the appointment of a Roman Catholic Bishop in Canada.

Doctors' Commons, February 21, 1826. 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 cum futura successione, 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

E

established by 1 Eliz. c. 1, which last statute considered the King's supremacy as essentially opposed to the exercise of any authority by the Pope in any parts of the dominions belonging to the Imperial Crown of this realm. The Governor appears to recommend that the late coadjutor, who has been already consecrated, may be appointed Bishop of Quebec by letters patent issued under the provincial seal. The appointment of a bishop is a very high act of the royal prerogative, and has never yet been exercised, so far as I know, in any other manner, in the colonies, than by letters patent under the Great Seal. Whether that form of appointment could now be used of a Catholic Bishop, is a question on which I cannot presume to advise, and it will be proper that it should be referred to the Attorney and Solicitor General. If the appointment can be made under the provincial seal, it must be, I presume, on special instructions or warrant from his Majesty. The questions to be referred should, I humbly submit, embrace all these points—whether the appointment of a Catholic Bishop in Canada can legally be made by his Majesty, by letters patent under the Great Seal, or under the provincial seal, under special instructions or warrant from his Majesty? Earl Bathurst, &c. CHRISTOPHER ROBINSON.

(9.) JOINT OPINION of the King's Advocate, SIR JOHN DODSON, and the Attorney and Solicitor General, SIR JOHN CAMPBELL and SIR R. M. ROLFE, on the appointment of a Suffragan Bishop of Montreal.

Doctors' Commons, February 3, 1836. MY LORD,—We have received your Lordship's letter of the 2nd instant, relative to the appointment of a suffragan Bishop of Montreal, and desiring us to report our opinion, whether under the statute of 26 Hen. 8, respecting Suffragan Bishops, or for any other reason, there exists any objection in point of law to the instrument of appointment, a copy of which your Lordship has sent to us? We beg leave in answer to state to your Lordship that we have taken the subject into consideration, and we do not see any objection in point of law, under the statute of Hen. 8, or otherwise, to the pro posed instrument.

The Lord Glenelg,

&c. &c. &c.

J. DODSON.

J. CAMPBELL.

R. M. ROLFE.

(10.) JOINT OPINION of the Attorney and Solicitor General, SIR JOHN CAMPBELL and SIR R. M. ROLFE, on the incorporation of a Roman Catholic College in Prince Edward's Island. Temple, May 31, 1838.

66

MY LORD,-We have to acknowledge the receipt of your Lordship's letter of the 16th ultimo, referring us to an Act passed by the Legislature of Prince Edward's Island (No. 448), entitled “ An Act to incorporate the Trustees of St. Andrew's College, and to repeal a certain Act therein mentioned," and requesting that we would state our joint opinion whether there is any reason deducible from the Act of Supremacy of Queen Elizabeth, or from any other statute or law, which should prevent the confirmation of this law by Her Majesty? We beg leave to state to your Lordship, that, in our opinion, there is nothing in the Act of Supremacy, taken in conjunction with the subsequent statutes relative to Her Majesty's Roman Catholic subjects, which should prevent the confirmation of this law by Her Majesty in Council. J. CAMPBELL.

The Lord Glenelg,

&c. &c. &c.

R. M. ROLFE.

(11.) JOINT OPINION of the Attorney and Solicitor General, SIR FREDERICK POLLOCK and SIR WILLIAM WEBB FOLLETT, on the Authority of the Crown to interfere with and make Regulations respecting the appointment of Roman Catholic Bishops in Canada. Temple, April 11, 1842.

SIR, We have the honour to acknowledge the receipt of your letter dated the 16th of October last, stating that the Reverend M. Power having been deputed by the Roman Catholic Bishop of Montreal to submit for the approval of Her Majesty's Government a proposition for dividing the diocese of Kingston into two distinct sees, and for "the formation of an ecclesiastical province to be composed of all the British North American provinces under one Archbishop or one Metropolitan See;" and further stating, that you had received Lord Stanley's directions to state that, as preliminary to advising Her Majesty as to the course which it might be expedient to take in respect to this application, his Lordship would wish us to report to him, our opinion, whether, adverting to the Act of Supremacy, and any other Acts of Parliament relating to the exercise within the Queen's dominions of the religion of the

Church of Rome, and also adverting to the terms of the capitulation of Quebec and Montreal, in 1759 and 1760, and to the statutes 14 Geo. 3, c. 83, 31 Geo. 3, c. 31, and 3 & 4 Vict. c. 35, any authority is vested in the Queen to regulate, or in any manner interfere with, the appointment of Roman Catholic bishops or archbishops in Canada, or to determine what the number or what the character of the ecclesiastical functionaries of the Roman Catholic Church in that province shall be ?

In obedience to his Lordship's commands, we have considered the subject referred to us with great care, and beg leave humbly to report that we think, under the terms of the Treaty of Paris of 1793, and of the stat. 14 Geo. 3, c. 53, s. 5, and with reference to the provisions of the statute of 1 Eliz., Her Majesty has an authority vested in her to interfere with, and to make regulations respecting, the appointment of Roman Catholic bishops and archbishops in Canada; and with respect to the particular proposal which is mentioned in the letter, we think that the consent of the Crown is properly asked for, and that it may be lawfully given to, the division of the diocese of Kingston into two sees, if Her Majesty, in her discretion, shall think fit to do so.

But, as regards that part of the proposal which relates to the formation of an ecclesiastical province to be composed of all the British provinces in North America, and which would extend therefore over provinces not conquered, and in which there are no stipu lations respecting the maintenance of the Roman Catholic religion, either by treaty or Act of Parliament: we think that the Crown cannot be properly called upon to give its sanction, and that it has no legal power to do so.

G. W. Hope, Esq.

FREDERICK POLLOCK.
W. W. FOLLETT.

(12.) JOINT OPINION of the Queen's Advocate, SIR JOHN DODSON, and the Attorney and Solicitor General, SIR FREDERICK THESIGER and SIR FITZROY KELLY, on the status of Clergymen of the Church of England, and the jurisdiction of the Bishop, in Van Diemen's Land.

Doctors' Commons, December 27, 1845. MY LORD,-In compliance with the request contained in the letter of Mr. Under-Secretary Stephen of the 18th of October last,