The Press. THURSDAY, MAY 18, 1865.

Press, Volume VII, Issue 796, 18 May 1865, Page 2

The Press. THURSDAY, MAY 18, 1865.

The recent discussions in the General Synod of the Episcopal Church have brought out in strong relief one point in the anomalous position of our relation with the mother country; and it is worthy of notice how these questions of the relative power and jurisdiction of the home and colonial authorities come into discussion at the same time in Church and in State. Colonial Bishops have hitherto been appointed by letters patent from the Crown. These letters patent not only confer a bishopric on a particular individual, but invest him, or profess to invest him, with certain powers; in fact, with all the powers which attach to the office of Bishop according to English law* There can be no question that the power of constituting the Bishop a corporation, is one which may be lawfully exercised by the Crown in all parts of the Empire. That is one of the rights granted. But the letters patent also grant, or were supposed to grant, the authority to the Bishop to hold courts, and exercise the same discipline over the clergy as he does in England; an appeal lying from the Bishop's Court to the Archbishop of Canterbury, and thence to the Privy Council. It appears, however, from recent decisions that this power, in most cases, has no existence. It is an undoubted maxim of law, that it is not within the royal prerogative to create a court or establish any legal jurisdiction whatever in any colony to which legislative powers have been previously granted. The power of making laws for itself being once bestowed on a colony, all jurisdiction of any kind must emanate either from the Imperial Parliament, —and that not by a general statute, but by a statute expressly in words applying it to the colony, or to colonies generally ;—or it must emanate from the colonial legislature. Now all the existing letters patent have been granted since the date of the grant of legislative powers to colonies. Hence no letters patent confer any ecclesiastical jurisdiction" whatever upon Bishops. "We are not speaking, of course, of that authority ! which the Bishop derives from the Church— his spiritual power and his dominion over the clergy in forp conscientim ; but only of that legal power which he would enjoy as an English Bishop of holding ecclesiastical tribunals for determining cases of immorality of life or heresy in doctrine in his clergy. In fact, it comes to this, that the Church of England in the colonies is no more known to, or recognised by, the law than any .other body of Christians, or any other eociety associated by voluntary compact for any purpose whatever ; and yet, notwithstanding this, the practice is still maintained of appointing Bishops by letters patent. There is another point, however, which is determined by the letters patent. They do, or profess to prescribe the territorial limits of the See; and on this point .the utmost doubt and uncertainty exists as to the state of the law. A case is before us at this moment illustrating the falseness of the'position to its fullest extent. The diocese of according to the letters patent, is bounded on the north by a line drawn due east and west tbroughgDouble Corner. This line cuts the West Coast at a point somewhere about the Wanganni river; that is to say, more than thirty miles south of Hokitika; so that the whole of the digging population ot the West Coast is at present in the Diocese of Nelson. The Bishop [of Nelson is unfortunately in a very precarious state of health, which renders it impossible for him to engage in more than the formal and necessary duties of his diocese. In fact, lie only holds the office

until the arrival of his successor, who has now been nominated by the Bishop of London, to whom the Diocesan Synod delegated its power of nomination. The Bishop of Christchurch, who has th© episcopal care of the whole of Southland and Otago, is already far too heavily worked to accept any additional responsibility which is not forced on him, so that the West Coast is at present utterly uncared for; and with a population of 10,000 or 12,000 souls is, we believe, without a clergyman of any kind whatever. Now, if ever there were a case in which some living local authority in the Church were necessary, it is in a case of this kind; and yet it is a case in which nothing can be done. Can there be a greater absurdity than this, that the governing body of the Church in New Zealand should be unable to define and alter the boundaries of the bishoprics so as to suit circumstances, or to create new bishoprics where wanted ? And yet the Royal letters patent, proved as they are to be absolutely inoperative as regards a large part of what they profess to bestow, rise up as a scarecrow to terrify the Church from what would seem to be its obvious duty? It would, indeed, be a matter requiring great consideration whether the Colonial Parliament has the power to alter or interfere with the operation of Royal letters patent. Nor is it, at first sight, apparent whether this act of the Crown in defining the boundaries of a bishopric, is one which is of any validity or not. The G-eneral Synod has acted throughout its recent session with extreme caution. It has asserted as a provision of the Constitution of the Church, that Bishops shall be nominated by the Diocesan Synod, and after the nomination is approved of by the General Synod, that the Primate shall take the necessary steps for procuring the consecration of the Bishop, leaving it open as to what those steps may be. The Synod has evaded the whole question. If the Crown has the right to appoint the Bishop, the nomination by the local Synod, is a dead letter, except so far as the Crown may choose to accept such nomination as an act of grace. In fact, the whole matter was put into a nutshell by one member of the Synod, who asked the question—lf the Diocesan Synod nominated a Bishop of Nelson, and he were consecrated by the Bishops here, and if the Crown appointed another Bishop of Nelson by letters patent, and he were sent out consecrated from England—which would be Bishop of the See ? This was a nut which the Synod declined to crack. It is said the Crown will appoint no more Bishops by letters patent, but will simply issue a Royal mandate for the consecration. But this is another evasion of the question. Suppose the Bishops consecrate without a mandate— What then ? The practical issue of such a contest may be stated thus : If the Church resolves to appoint its own Bishop, and the Bishops chose to consecrate him, and he is instituted into the See, the Crown, in order to assert its authority, would have to find a clergyman willing to accept the bishopric, with the conviction that the See wae already occupied, and that he could only possess himself of the emoluments by bringing an action for them in the Courts of the Colony. An action in which the result would be very doubtful. Would any clergyman accept such a piece of patronage ? Would the Crown dream of engaging in such a contest for the sake of an appointment worth less than many a living n> its gift ? It is absurd to suppose it. We regret then that the Synod did not take the plain common sense view of the matter; declare its inherent authority to appoint and consecrate its own Bishops in the absence of any ecclesiastical or other law to the contrary, and proceed to appoint a Bishop of Nelson, and to reconstitute the boundaries of the Dioceses as it found, most suitable for the interests of the Church. Every additional decision in the courts of law in England tends to this result—that there is no ecclesiastical law in force in the colonies at all; and that the appointment of Bishops by the Crown was a custom commenced at a time when, without much enquiry, it was presumed that a Bishop so appointed would be clothed with all the powers and privileges of a Bishop in England, where ecclesiastical law is part of the law of the realm. That doctrine is entirely exploded since Lord Campbell's dictum in the case of the living of Mortemar, that "there was no such thing as a Colonial Bishop known to the law." And yet the practice is still continued, although the effect of the letters patent is proved to be merely obstructive to all the interests of the colonial Church. Another case will soon arise. It is contemplated to establish a new Bishopric for Otago and Southland. An opportunity will be afforded to the Synod to assert the sole right of the Church to make new Sees and to fix the boundaries of old ones, just as freely in the case of bishoprics as of parishes. That is the common sense view of the matter, and we believe it will turn out at last to be the law as weJL