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41 TLC.O. 885
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adverting to the fact that such last-mentioned Letters-Patent were 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-Patent are made in pur- suance of the authority of an Act of Parliament (such for example as the Act of 6 and 7 Vict., cap. 13), a Bishopric may be constituted and eccle- siastical 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.
The subject was considered by the Judicial Com- mittee in the case of Long v. the Bishop of Cape Town, and we adhere to the principles which are there laid down.
The same reasoning is of course decisive of the second question, whether any jurisdiction was con- ferred by the Letters-Patent. Let it be granted or assumed that the Letters-Patent are sufficient in law to confer on Dr. Gray the ecclesiastical status of Metropolitan, and to create between him and the Bishops of Natal and Graham's Town the personal relation of Metropolitan and Suffragan as ecclesiastics, yet it is quite clear that the Crown had no power to confer any jurisdiction or coercive legal authority upon the Metropolitan over the Suffragan Bishops, or over any other
person.
It is a settled constitutional principle or rule of law, that although the Crown may by its Preroga- tive establish Courts to proceed according to the Common Law, yet that it cannot create any new Court to administer any other law; and it is laid down by Lord Coke in the 4th Institute that the erection of a new Court with a new jurisdiction cannot be without an Act of Parliament.
It cannot be said that any ecclesiastical tribunal or jurisdiction is required in any Colony or Settle- ment where there is no Established Church, and in
the case of a settled Colony the Ecclesiastical Law
of England cannot, for the same reason, be treated
as part of the law which the settlers carried with them from the mother country.
So much of the Letters-Patent now in question as attempts to confer any coercive legal jurisdiction is
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also in violation of the law as declared and established by that part of the Act of the 16 Car. I, c. 11 ̧ which remains unrepealed by the 13 Car. II, st. 2,
c. 12. It may be useful to state this in detail. By the 16th and 17th sections of the 1 Eliz., c. 1, en- titled "An Act for restoring to the Crown the ancient Jurisdiction over the State Ecclesiastical and Spiritual, and abolishing all Foreign Power repugnant to the same," it was enacted that all usurped and foreign power and authority, spiritual and temporal, should for ever be extinguished within the Realm, and that such jurisdictions, privileges, superiorities, and pre-eminences, spiritual and ecclesiastical, às by any spiritual or ecclesiastical power or authority had theretofore been or might lawfully be exercised or used for the visitation of the ecclesiastical state and persons, and for reformation, order, and correction of the same, and of all manner of heresies, schisms, abuses, offences, contempts, and enormities, should for ever be united and annexed to the Imperial Crown of this realm. And by the 18th section the Queen was empowered by Letters-Patent to appoint persons to exercise, occupy, use, and execute all manner of spiritual or ecclesiastical jurisdiction within the realms of England and Ireland, or any other the dominions and countries of the Crown.
Under this Statute the High Commission Court was erected, which was abolished by the 16 Car. I, c. 10.
By the Act of the 16 Car. I, o. 11, the 18th sec- tion of the 1 Eliz., c. 1, was wholly repealed, and by the 4th section of the same Statute all spiritual and ccclesiastical persons or judges were forbidden under severe penalties to exercise any jurisdiction or coercive legal authority, an enactment which closed
all the regular established ecclesiastical tribunals; but
by the 13 Car. II, c. 12, the ordinary ecclesiastical jurisdiction and authority, as it existed before the year 1639, was with certain savings restored to the Archbishops and Bishops; and the Act of the 16 Car. I, excepting what concerned the High Com- mission Court or the erection of any such like Court by Commission, was repealed, but with a proviso that nothing should extend or be construed to revive or give force to the enactments contained in the 18th section of the 1 Eliz,, c: 1, which should remain and stand repealed.
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