we have referred to the letter of Mr. Under-Secretary Hope of the 28th of August last, and to the several Acts of the Legislature of Van Diemen's Land now laid before us; and with reference to the questions submitted to us touching the proceedings adopted against certain clergymen in that colony, and the status of clergymen there, we have the honour to report to your Lordship, that having also considered the points suggested by Archdeacon Marriott, we are of opinion: that upon the appointment of a chaplain to officiate in Van Diemen's Land, whether by the Government here or in the colony, he cannot lawfully act without being licensed by the Bishop of Tasmania.

That, upon refusal by the Bishop to license, an appeal lies to the Archbishop of Canterbury, and to him only: that a license may be revoked by the Bishop. That upon the revocation of a license no formal trial is necessary: that the Bishop, however, should not act but upon what he deems sufficient cause, or without giving the party accused an opportunity of answering the charge against him.

That there is no form of institution or induction, or analogous to either, in Van Diemen's Land; the appointment and the license are all that can take place: that the Bishop may try, convict, and punish for ecclesiastical offences, without the aid of any new Court to be created by the local legislature or otherwise; but he must proceed judicially, with the assistance of such officers as are created by the letters patent, and decide according to the best of his judgment; there must be a distinct charge, the accused must have due notice, and a fair opportunity of answering and defending himself, and of examining his witnesses, and cross-examining the witnesses against him that the 3 & 4 Vict. c. 86 does not extend to the colonies; that, therefore, if either of the clergymen in question was unlicensed, he could not legally officiate at all, and that if any license had been granted, the revocation of it by the Bishop was valid.

The Right Hon. the Lord Stanley, &c. &c. &c.

J. DODSON.

FREDERICK THESIGER. FITZROY KELLY.

(13.) JOINT OPINION of the Queen's Advocate, SIR J. D. HARDING, and the Attorney and Solicitor General, SIR FREDERICK THESIGER and SIR FITZROY KELLY, on the patronage of Benefices and the appointment of Missionaries in Prince Edward's Island.

Doctors' Commons, August 24, 1852. SIR,-We were favoured with a letter from Mr. Elliot on the 12th instant, in which he stated that he was directed by you to request that we would intimate our opinion on the following point:

There appeared to be in Prince Edward's Island two classes of ministers of the Church of England: some commonly designated as rectors, who enjoy, as such, certain lands attached to parish churches; others who are merely stationed at places in the island, and employed as missionaries of the Society for the Propagation of the Gospel.

Mr. Elliot also stated that he was directed to request that we would take into consideration the Local Act, 43 Geo. 3, c. 6, the annexed extracts from the commission, and instructions from the Governor of Prince Edward's Island, and the inclosed correspondence, and report to you our opinion—

What are the respective rights of the Governor, the parishioners, and the Bishop, in respect to the institution, presentation, and collation or induction of rectors?

Has the Governor any, and what, rights or duties in respect of the appointment of missionaries of the Society for the Propagation of the Gospel to minister in the island?

In obedience to your commands, we have perused the several documents accompanying Mr. Elliot's letter, and have the honour to report that, by the Colonial Act, 43 Geo. 3, c. 6, the patronage of all benefices is vested in the parishioners, who are entitled to present to them whenever vacancies occur. The Lieutenant-Governor, upon such a presentation, is required to induct. The clerk so presented must, however, produce a license from the Bishop of London, or from the Bishop of Nova Scotia, and he must also have publicly declared his assent and consent to the Book of Common Prayer, and must have subscribed to be conformable to the Orders and Constitution of the Church of England, and the laws there

established; but the Lieutenant-Governor having ascertained that these preliminaries have been complied with, his office is merely ministerial, and he has no power to refuse induction. The Bishop's functions are confined to licensing the clerk, who is presented (of course after due examination), if such clerk has not already obtained a license from the Bishop of London.

The Lieutenant-Governor has no rights or duties in respect of the appointment of missionaries of the Society for the Propagation of the Gospel, but such missionaries cannot officiate without the license of the Bishop; and if they should do so, or fail to declare their assent to the Book of Common Prayer, or to subscribe the Articles and Canons of the Church, we think that, according to the spirit of the Colonial Act, they may be suspended and silenced by the Lieutenant-Governor and the Council.

The Right Hon. Sir J. Pakington, Bart.,

&c. &c. &c.

J. D. HARDING.

FRED. THESIGER.
FITZROY KELLY.

NOTES TO CHAPTER II.

The foregoing Opinions give the opportunity of discussing the question of the status of the Church of England in the colonies, and how far the ecclesiastical law of England is applicable to that Church there. Of late years the question has been fully considered, and the law settled by the Judicial Committee of the Privy Council. First, in the case of Long v. Bishop of Capetown, 1 Moore, P. C. (N.S.) 411, where Mr. Long, the appellant, claiming to be the incumbent of a parish in the colony of the Cape of Good Hope, refused to obey certain orders which the Bishop of the diocese, in the exercise of his episcopal authority, thought fit to issue, and for such disobedience the Bishop issued against Mr. Long sentences, first of suspension, and afterwards of deprivation. The validity of these sentences was disputed, first in the colonial court, and afterwards on appeal here. The first question which the Judicial Committee considered was the authority which the Bishop possessed under and by virtue of his letters patent at the time when the senpronounced. And they held that the letters patent under which the Bishop acted, having been issued after a constitutional government had been established in the Cape of Good Hope, were ineffectual to create any jurisdiction, ecclesiastical or civil, within the colony. The next point was, whether the defect of coercive jurisdic

tences were

tion under the letters patent had been supplied by the voluntary submission of Mr. Long? The Judicial Committee held that Mr. Long, by taking the oath of canonical obedience to the Bishop, and accepting from him a license to officiate and have the care of souls within a parish in the colony, and by accepting the appointment to the living under a deed which expressly contemplates, as one means of avoidance, the removal of the incumbent for any lawful cause, did voluntarily submit himself to the authority of the Bishop to such an extent as to enable the Bishop to deprive him of his benefice for any lawful cause. But this was on the principle of contract, the Court holding that for the purpose of the contract between the plaintiff and defendant, it was to take them as having contracted that the laws of the Church of Eng. land should, though only so far as applicable in the colony, govern both. The next question was, whether Mr. Long had been guilty of any offences which, by the laws of the Church of England, warranted the sentences against him? This depended mainly on the point whether Mr. Long was justified in refusing to take the steps which the Bishop required him to take in order to procure the election of a delegate for the parish to a synod convened by the Bishop. The Judicial Committee held that the Bishop had no power of convening a synod without the consent of either the Crown or the colonial legislature, for the purpose of making laws binding upon members of the Church of England; that the acts which they assumed to pass were illegal ; and that Mr. Long was justified in refusing to assist in calling into existence a body which he was not bound by any law or duty to acknowledge. The oath of canonical obedience only means that the clergyman will obey all such commands as the Bishop by law is authorized to impose. The Court, therefore, were of opinion that the order of suspension and subsequent sentence of deprivation were not justified, and were invalid. In giving judgment, the Court said: "The Church of England in places where there is no Church established by law is in the same situation with any other religious body-in no better, but in no worse position; and the members may adopt, as the members of any other communion may adopt, rules for enforcing discipline within their body, which will be binding on those who expressly, or by implication, have assented to them."

Another point considered by the Judicial Committee in this case was, whether, supposing the sentences of the Bishop to be erroneous, Mr. Long had any remedy except by appeal to the Archbishop of Canterbury under the letters patent; and they held that even if Mr. Long might have appealed to the Archbishop-a question which they thought it unnecessary and inexpedient to discuss, as the suit in respect of which the appeal was brought respected a temporal right, in which the appellant alleged that he had been injured-he was not bound to appeal to the Archbishop, but was at liberty to resort to the Supreme Court of the colony.

This case was followed by Re The Lord Bishop of Natal, 3 Moore,

P. C. (N.S.) 115, which was a petition presented to Her Majesty in Council by Dr. Colenso, Bishop of Natal, complaining of the illegality of certain proceedings taken against him, and alleging the nullity of a sentence of deposition for heresy pronounced against him by the Bishop of Capetown, as metropolitan of that diocese. The petition was referred to the Judicial Committee, and several of the questions which had been considered in the case of Long v. The Bishop of Capetown came again before the Court. They held that, although in a Crown colony, properly so called, or in cases where the letters patent constituting a bishopric and appointing a bishop in a colony was made in pursuance of an Act of Parliament, a bishopric may be constituted and ecclesiastical jurisdiction conferred by the sole authority of the Crown, yet that the letters patent of the Crown will not have any such effect or operation in a colony or settlement which is possessed of an independent legislature. They held, therefore, that in the case before them the Crown had no power to confer any jurisdiction, or exercise legal authority, upon the Metropolitan of Capetown over the suffragan bishops, or over any other person; and they said that in the case of a settled colony the ecclesiastical law of England cannot be treated as part of the law which the settlers carried with them from the mothercountry (1). They said: "After a colony or settlement has received legislative institutions, the Crown (subject to the special provisions of any Act of Parliament) stands in the same relation to that colony or settlement as it does to the United Kingdom. It may be true that the Crown, as legal head of the Church, has a right to command the consecration of a bishop, but it has no power to assign to him any diocese, or give him any sphere of action within the United Kingdom. The United Church of England and Ireland is not a part of the constitution in any colonial settlement, nor can its authorities, nor those who bear office in it, claim to be recognized by the law of the colony otherwise than as members of a voluntary association." As to the question whether, supposing that the Bishop of Capetown had no jurisdiction by law, he obtained it by contract or submission on the part of the Bishop of Natal by virtue of his oath of canonical obedience, they held that it was not legally competent to the Bishop of Natal to give, or to the Bishop of Capetown to accept or exercise, any such jurisdiction.

The Bishop of Natal afterwards sued the Trustees of the Colonial Bishoprics' Fund for arrears of his salary, which they, in consequence of the decision in the last case, had withheld from him. This case, Bishop of Natal v. Gladstone, L R. 3 Eq. 1, came before Lord Romilly, M.R., in 1866, and he pronounced a decree in favour of the plaintiff. His Lordship held that the law, as declared by the Judi

(1) In R. v. Brampton, 10 East, 288, Lord Ellenborough, C.J., said: "In the absence of any evidence to the contrary, I may suppose that the law of England, ecclesiastical and civil, was recognized by subjects of England in a place occupied by the King's troops, who would impliedly carry that law with them."-See ante, P. 18.