PUBLIC RECORD OFFICE
Reference :-
PETC.O.885
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There is therefore no power in the Crown to create any new or additional ecclesiastical tribunal or jurisdiction, and the clauses which purport to do so, contained in the Letters-Patent to the Appellant and Respondent, are simply void in law. No Metro- politan or Bishop in any Colony having legislative institutions can, by virtue of the Crown's Letters- Patent alone (unless granted under an Act of Parlia- ment, or confirmed by a Colonial Statute), exercise Court or any coercive jurisdiction, or hold any Tribunal for that purpose.
Pastoral or spiritual authority may be incidental to the office of Bishop, but all jurisdiction in the Church, where it can be lawfully conferred, must proceed from the Crown, and be exercised as the law directs, and suspension or privation of office
is matter of coercive legal jurisdiction, and not of mere spiritual authority.
3. If, then, the Bishop of Cape Town had no jurisdiction by law, did he obtain any by contract or submission on the part of the Bishop of Natal ?
There is nothing on which such an argument can be attempted to be put, unless it be the oath of canonical obedience, taken by the Bishop of Natal to Dr. Gray as Metropolitan.
The argument must be, that both parties being aware that the Bishop of Cape Town had no juris- diction or legal authority as Metropolitan, the Appellant agreed to give it to bim by voluntary submission.
But even if the parties intended to enter into any such agreement (of which, however, we find no trace(, it was not legally competent to the Bishop of Natal
to give, or to the Bishop of Cape Town to accept
or exercise, any such jurisdiction.
There remains one point to be considered. It was contended before us that if the Bishop of Cape Town had no jurisdiction, his judgment was a nullity, and that no appeal could lie from a nullity to Her Majesty in Council.
But that is by no means the consequence of holding that the Respondent had no jurisdiction. The Bishop of Cape Town, acting under the autho- rity which the Queen's Letters-Patent purported to give, asserts that he has held a Court of Justice, and that with certain legal forms he has pronounced a judicial sentence, and that by such sentence he
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has deposed the Bishop of Natal from his office of Bishop, and deprived him of his see. He also asserts that the sentence having been published in the Diocese of Natal, the clergy and inhabitants of that diocese are thereby deprived of all Episcopal superintendence. Whether these proceedings have the effect which is attributed to them by the Bishop
of Cape Town, is a question of the greatest import- ance, and one which we feel bound to decide. We have already shown that there was no power to confer any jurisdiction on the Respondent as Metro- politan. The attempt to give Appellate jurisdiction
to the Archbishop of Canterbury is equally invalid.
This important question can be decided only by the Sovereign as Head of the Established Church and depositary of the ultimate Appellate juris- diction.
Before the Reformation, in a dispute of this nature between two independent prelates, an appeal would have lain to the Pope, but all appellate authority of the Pope over members of the Esta- blished Church is by Statute vested in the Crown.
It is the settled prerogative of the Crown to receive Appeals in all Colonial causes, and by the 25 Henry VIII, c. 19 (by which the mode of the Appeal to the Crown in Ecclesiastical Causes is directed) it is by the 4th section enacted that "for lack of justice at or in any of the Courts of the Archbishops of this Realm, or in any of the King's dominions, it shall be lawful to the parties grieved to appeal to the King's Majesty in the Court of Chancery," an enactment which gave rise to the Commission of Delegates, for which this Tribunal is
now substituted.
Unless a controversy, such as that which is pre sented by this Appeal and Petition, falls to be determined by the ultimate jurisdiction of the Crown, it is plain that there would be a denial of justice, and no remedy for great public inconve- nience and mischief. It is right to add, although unnecessary, that by the Act 3 and 4 Wm. IV,
cap. 41, which constituted this Tribunal, Her Majesty has power to refer to the Judicial Com- mittee for hearing or consideration any such other matters whatsoever as Her Majesty shall think fit, and this Committee is thereupon to hear or consider the same, and to advise Her Majesty thereon: and
3 PUBLIC RECORD OFFICE, LONDON
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