bishops an imperial statute would be requisite. The Bill, however, was referred to the Judicial Committee of the Privy Council, who, after hearing counsel on the matter, advised that it should receive the royal assent. Whereupon it was specially ratified by the Queen in council. Since the passing of this Act, the crown has deliberately surrendered the right of nominating bishops in Canada, and of approving the choice thereof by the clergy and laity.' In view of the altered position of the Church of England in the New Zea colonies of Great Britain, by reason of the aforementioned judgment land episof the Privy Council in the case of the Bishop of Natal,-which copate. denies that the Church is a part of the constitution in any colonial settlement, and repudiates its claim to be recognised by the law of any colony otherwise than as 'the members of a voluntary association,'-the five bishops of the Anglican Church in New Zealand petitioned the Queen, in the year 1865, that they might be permitted to surrender their letters patent (which had been issued by the crown after the colony had received representative institutions), and allowed to rely in future upon the powers inherent in their office for perpetuating the succession of their order within the colony, and securing the due exercise of their episcopal functions, in conformity with a church constitution agreed upon in 1857, by voluntary compact' between the bishops, clergy, and laity of the United Church of England and Ireland in New Zealand. The bishops stated, in their petition, that their church constitution had been recognised by an act of the New Zealand legislature, in 1858, which sanctioned the assembling of a general synod, and made regulations in regard to the holding of church property. That a general synod had since assembled triennially, and had framed rules for enforcing discipline within their body, and had established a tribunal to determine whether such rules had been violated or not, and what should be the effect of their violation; in conformity with the judgment of the Privy Council in the case of Long v. the bishop of Capetown, which declared that the members of the Church of England in a colony may adopt rules for enforcing discipline within their body which will be binding on those who, expressly or by implication, have assented to them.'m *See Journal Leg. Assy. Can. 1856, pp. 259-266. Com. Pap. 1856, v. 44, p. 129. Ib. 1857, § 2, v. 28, p. 97. The Canadian statute was afterwards amended, in order to remove VOL. I. doubts in regard to the representa- 1 Mac. Mag. v. 18, p. 456. The In order to prevent any failure of justice, as the result of this new relation between the Church authorities and the parties who may be subject to them, the bishops submit that the course of procedure, in all questions that may arise between any of the members Church in of the Anglican Church in New Zealand,-whether bishops, clergy, or laity, who have bound themselves by voluntary compact, under the authority of the general synod, should be that which was pointed out by the judgment of Lord Lyndhurst, in 1835, in the case of Dr. Warren," viz.: New Zea land. : 1. That the question be tried and decided according to the rules of the synod, as agreed to by the bishops, clergy, and laity. 2. That on petition of either party the Supreme Court of the colony would have authority to inquire into the regularity of the proceedings, and the authority of the tribunal, and, on those grounds merely,' to affirm or annul the decision. 3. That from any such decision of the Supreme Court of the colony an appeal would lie to the Privy Council, upon the same grounds. The bishops are of opinion that such a mode of procedure would satisfy all the ends of justice, and secure the liberty of the subject, without its being necessary to appeal direct to the crown, in any litigated case, as had been done with such unsatisfactory results in the controversy between the bishop of Capetown and the bishop of Natal. In order, therefore, that all doubts as to their status, both ecclesiastical and temporal, may be removed, the bishops pray : 1. That the surrender of their letters patent, now declared to be null and void, may be accepted. 2. That the royal mandate under which they were consecrated may be declared to have been merely permissive, and to have no further effect or legal consequence. 3. That the inherent right of the bishops in New Zealand to fill up vacancies in their own order by the consecration of persons elected in conformity with the regulations of the general synod, without letters patent, and without royal mandate, may be recognised following therein the precedent already established in the case of the missionary-bishop for the islands of the Western Pacific, who was consecrated by the bishops of New Zealand, without letters patent or royal mandate, after communication with the secretary of state for the colonies, and the attorney-general of New Zealand. On April 24, 1866, the colonial secretary (Mr. Cardwell) informed the House of Commons, in reply to a question from a mem * See Brod. and Frem's. Judgments of the Come, P. C. 308 n, 311. ber, that the foregoing memorial of the New Zealand bishops had been accompanied by a minute from the New Zealand ministry, objecting to the creation of corporations within the colony by the act of the crown without their advice, and also to any arrangement by which any quasi-jurisdiction of the bishops in New Zealand should receive any authority from the crown. On the other hand, the archbishop of Canterbury approved of the petition from the New Zealand bishops, but was of opinion that, since the judgments of the Privy Council therein cited, the quasi-judicial decisions of the governing powers in the colonial churches could only be regarded as proceedings "in foro domestico," which ought not to be liable to be reviewed, on appeal, by the Judicial Committee of the Privy Council.'0 Under these circumstances, and considering the difficulties arising out of the decision of the Privy Council in the case of the bishop of Natal, the government had decided to consult Parliament before any further action was taken. Meanwhile, they were unable to recommend the filling up of a vacancy in the see of Nelson, New Zealand, although such vacancy had existed for several months. On May 15, the promised Colonial Bishops Bill was introduced.P Colonial Bishops It permitted the surrender of his letters patent from the crown by Bill. any bishop exercising episcopal functions in any of the British colonies. It rendered valid ordinary episcopal acts done by any bishop, lawfully chosen, and consecrated, by the free and voluntary consent of his clergy and people, without the necessity for any letters patent, royal mandate, or license. It authorised any bishop of the Church of England to consecrate, within the United Kingdom, a bishop for the Church in the colonies, or elsewhere beyond the limits of the United Kingdom, upon receiving a royal license in lieu of a mandate for that purpose: and declared that no such mandate or license shall be necessary for any such consecration elsewhere than within the United Kingdom. All questions of law respecting the status, rights, and duties of a colonial bishop to be determinable, where there is no ecclesiastical court, by ordinary courts of law in the colonies. The remaining clauses of this Bill related to the relations between the Established Church in the mother-country and the colonial bishoprics, so far as regards the performance of episcopal acts or clerical functions by persons ordained in the United Kingdom, or in any of its dependencies. Owing to the change of ministry in the latter part of this session, the Colonial Bishoprics Bill was unavoidably withdrawn. But, on See the petition, minute of New Zealand Cabinet thereon, and the archbishop's letter, &c., in the Correspondence relative to Colonial Bishoprics,' presented to Parliament, P Hans. D. v. 183, p. 1032. Church of England abroad. July 13, the new colonial secretary expressed his general agreement with the principle of this Bill, and intimated that the government would be prepared to submit a similar measure to Parliament in the ensuing session. 3. The position of the Church of England in Foreign Countries. Inasmuch as the whole collective legal powers of a bishop of the Church of England, as distinguished from his spiritual powers, are derived from the crown, in conjunction with Parliament, it follows that no such authority and jurisdiction can be granted out of the Queen's dominions, except as the result of a special arrangement with the governing power of a foreign country; and that the authority of Parliament must be invoked to enable the crown to dispense with the requirements indispensable to the ordinary appointment and consecration of bishops within the realm. Thus, in 1786, after the independence of the revolted American colonies had been established, an act was passed empowering the archbishop of Canterbury or York, with such other bishops as they shall think fit to assist, to consecrate citizens or subjects of foreign states to the episcopal office, according to the form of consecration in the Church of England. This act dispensed with the necessity for the royal license for the election, and of the royal mandate for the confirmation and consecration of such bishops; but it forbad any such consecration without the royal license having been first obtained for the performance of the same." Subsequently, in the year 1841, the provisions of this Act were extended so as to admit of bishops so appointed to exercise spiritual jurisdiction over the ministers of British congregations of the Church of England in foreign countries, as well as over such other Protestant congregations as may be desirous of placing themselves under their authority. In 1862, the bishop of Oxford submitted a Bill to the House of Lords, to authorise the appointment and consecration of bishops for heathen and Mahomedan countries, with a view to the spread of the Gospel among the heathen, and to dispense with the necessity for any license from the crown, to enable the archbishops to proceed to consecrate such bishops. The Bill was opposed by the lord chancellor, as being an attempt to assail and remove the supremacy of the crown;' and because it was necessary, in order to maintain the constitution of the country in Church and State, that no act should be done by which dignity is conferred, except under special authority emanating from the sovereign, as the source of all authority, temporal and spiritual.' Moreover, there was no necessity for the Bill, as the power and authority required had been already given by the Acts of 26 Geo. III. and 5 Vict. aforesaid; and there was no difficulty in obtaining the license of the crown to proceed under those statutes. The Bill was accordingly withdrawn.* In 1861, the bishops of the Anglican Church in New Zealand, after communication on the subject with the secretary of state for the colonies, and the attorneygeneral for New Zealand, consecrated a missionarybishop for the islands of the Western Pacific, without letters patent, or any mandate from the crown, a precedent which has since been followed, without objection.' 4. The obligations of the Act of Uniformity. By the Act 14 Car. II. cap. 4, commonly called the Act of Uniformity, the use of the Book of Common Prayer thereunto annexed is made binding upon the clergy of the Church of England; and they are ex The Jerusalem Bishopric Act, 5 Vict. c. 6, and see the form of license from the crown in Stephen's Eccl. Stat., v. 2, p. 2150, n. Hans. D. v. 168, pp. 223, 234. u lb. v. 185, p. 380. Act of Unifor mity. |