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THE HONGKONG GOVERNMENT GAZETTE, 15TH JULY, 1865.
417
his office as such Bishop, and to be further prohibited from the exercise of any Divine office within any part of the politan Province of Cape Town. In pronouncing this Decree, the Bishop of Cape Town claimed to exercise jurisdiction ropolitan by virtue of his Letters-Patent, and of the office thereby conferred on him, and as having thereby acquired authority to try and condemn the Appellant; and the Appellant protested against such assumption of jurisdiction. This Sentence and Decree of Dr. Gray as Metropolitan has been published and promulgated in the Diocese of Natal, and Clergy of that Diocese have been thereby prohibited from yielding obedience to the Appellant as Bishop of Natal.
In this state of things three principal questions arise, and have been argued before us:-First, Were the Letters-Patent de Sth December, 1853, by which Dr. Gray was appointed Metropolitan, and a Metropolitan See or Province was expressed , be created, valid and good in law? Secondly, Supposing the ecclesiastical relation of Metropolitan and Suffragan to have
3 created,
was the grant of coercive authority and jurisdiction expressed by the Letters-Patent to be thereby made to the opolitan valid and good in law? Thirdly, Can the oath of canonical obedience taken by the Appellant to the Bishop of Town, and his consent to accept his see as part of the Metropolitan Province of Cape Town, confer any jurisdiction or on the Bishop of Cape Town by which this sentence of deprivation of the Bishopric of Natal can be supported? thority
With respect to the first question, we apprehend it to be clear, upon principle, that after the establishment of an indepen- Legislature in the Settlements of the Cape of Good Hope and Natal, there was no power in the Crown by virtue of its rerogative (for these Letters-Patent were not granted under the provisions of any Statute) to establish a Metropolitan See Province, or to create an Ecclesiastical Corporation whose status, rights, and authority the Colony could be required to
ognize.
After a Colony or Settlement has received legislative institutions the Crown (subject to the special provisions of any Act 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 as no power to assign him any diocese, or give him any sphere of action within the United Kingdom. The United Church England and Ireland is not a part of the Constitution in any Colonial Settlement, nor can its authorities or those who bear ce in it claim to be recognized by the law of the Colony, otherwise than as the members of a voluntary association.
The course which legislation has taken on this subject is a strong proof of the correctness of these conclusions. In the er 1813 it was deemed expedient to establish a Bishopric in the East Indies (then under the Government of the East India Company), and although the Bishop was appointed and consecrated under the authority of the Crown, yet it was thought essary to obtain the sanction of the Legislature and that an Act of Parliament should be passed to give the Bishop legal atus and authority. Accordingly by Statute 53 Geo. III, c. 155, sec. 49, it was enacted that in case it should please His Majesty by His Royal Letters-Patent to erect, found, and constitute one Bishopric for the whole of the British territories in Est Indies and parts therein mentioned, a certain salary should be paid to the Bishop by the East India Company, and 55 the 51st and 52nd sections it was enacted that such Bishop should not have or use any jurisdiction, or exercise any episcopal inctions whatsoever but such as should be limited to him by Letters-Patent, and that it should be lawful for His Majesty by Letters-Patent to grant to such Bishop such ecclesiastical jurisdiction and the exercise of such episcopal functions within the Fast Indies and parts aforesaid as His Majesty should think necessary for adininistering holy ceremonies, and for the superin- endence and good government of the ministers of the Church Establishment within the East Indies and parts aforesaid. Subsequently, in the year 1833, it was deemed right to found two additional Bishoprics, one at Madras and the other at Bombay, and again an Act of Parliament (3 and 4 Wm. IV, c. 86) was passed, by the 93rd section of which it was enacted in like manner that the Crown should have power to grant to such Bishops within their dioceses ecclesiastical jurisdiction; and it was also euacted and declared that the Bishop of Calcutta should be Metropolitan in India, and should have as such all ach jurisdiction as the Crown should by Letters-Patent direct, subject, nevertheless, to the general superintendence and revision of the Archbishop of Canterbury; and it was provided that the Bishops of Madras and Bombay should be subject to the Bishop of Calcutta as Metropolitan, and should take an oath of canonical obedience to him.
So again when in 1824 a Bishop was appointed in Jamaica by Letters-Patent containing clauses similar to those which are found in the Letters-Patent to the present Appellant, it was thought necessary that the legal status and authority of the Bishop should be confirmed and established by an Act of the Colonial Legislature. The consent of the Crown was given to is Colonial Act, which would have been an improper thing, as an injury to the Crown's Prerogative, unless the Law Advisers f the Government had been satisfied that the Colonial Statute was necessary to give full effect to the establishment of the Bishopric.
The conclusion is further confirmed by observing the course of Imperial legislation on the same subject, namely, the creation of new Bishoprics in England.
When four new Bishoprics were constituted by Henry VIII, it appears to have been thought necessary, even by that 'solute Monarch, to have recourse to the authority of Parliament, and the Act that was passed (viz., the 31 Henry VIII, p. 9, which is not found in the ordinary edition) is of a singular character. After referring to the slothful and ungodly life which had been used among all those which bore the name of religious folk, and reciting that it was thought, therefore, unto the King's Highness most expedient and necessary that more Bishoprics, Collegiate and Cathedral Churches should be established, was enacted that His Highness should have full power and authority from time to time to declare and nominate by His Letters- Patent or other writing to be made under his Great Seal, such number of Bishops, such number of Cities, Sees for Bishops, Cathedral Churches and Dioceses by metes and bounds, for the exercise and ministration of their episcopal offices and administration as shall appertain, and to endow them with such possessions after such manner, form, and condition as to his
ast excellent wisdom shall be thought necessary and convenient.
This Statute, which was repealed by the 1st and 2nd of Philip and Mary, cap. 8, sec. 18, does not appear to have been revived. It is remarkable as granting power to nominate and appoint new Bishops as well as to create new Sees and Dioceses. So also in recent times the two new Bishoprics of Manchester and Ripon were constituted, and the new Bishops received clesiastical jurisdiction under the authority of an Act of Parliament. It is true that it has been the practice, for many years, insert in Letters-Patent creating Colonial Bishoprics, clauses which purport to confer ecclesiastical jurisdiction; "but the ms of such Letters-Patent were probably taken by the official persons who prepared them from the original forms used in Letters-Patent appointing the East Indian Bishops, without adverting to the fact that such last-mentioned Letters-Patent *re granted under the provisions of an Act of Parliament.
We therefore arrive at the conclusion that although in a Crown Colony, properly so called, or in cases where the Letters- et are made in pursuance of the authority of an Act of Parliament (such for example as the Act of 6 & 7 Vict., cap. 13), Bishopric may be constituted and ecclesiastical jurisdiction conferred by the sole authority of the Crown, yet that the Letters- ent of the Crown will not have any such effect or operation in a Colony or Settlement which is possessed of an independent slature.
The subject was considered by the Judicial Committee in the case of Long-e, the Bishop of Cape Town, and we adhere the principles which are there laid down.
The same reasoning is of course decisive of the second question, whether any jurisdiction was conferred by the Letters- nt. Let it be granted or assumed that the Letters-Patent are sufficient in law to confer on Dr. Gray the ecclesiastical s of Metropolitan, and to create between him and the Bishops of Natal and Graham's Town the personal relation of tropolitan and Suffragan as ecclesiastics, yet it is quite clear that the Crown had no power to confer any jurisdiction or
legal authority upon the Metropolitan over the Suffragan Bishops, or over any other person.
reive
It is a settled constitutional principle or rule of law, that although the Crown may by its Prerogative establish Courts to ved according to the Common Law, yet that it cannot create any new Court to administer any other law; and it is laid