418
THE HONGKONG GOVERNMENT GAZETTE, 15TH JULY, 1865.
down by Lord Coke in the 4th Institute that the erection of a new Court with a new jurisdiction cannot be without an Act e
Parliament.
It cannot be said that any ecclesiastical tribunal or jurisdiction is required in any Colony or Settlement where there is no Established Church, and in the case of a settled Colony the Ecclesiastical Law of England cannot, for the same reason, treated as part of the law which the settlers carried with them from the mother country.
"An Act
So much of the Letters-Patent now in question as attempts to confer any coercive legal jurisdiction is also in violation 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. I. 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. entitled for restoring to the Crown the ancient Jurisdiction over the State Ecclesiastical and Spiritual, and abolishing all Foreig Power repugnant to the same," it was enacted that all usurped and foreign power and authority, spiritual and tempor", should for ever be extinguished within the Realm, and that such jurisdictions, privileges, superiorities, and pre-eminences spiritual and ecclesiastical, as by any spiritual or ecclesiastical power or authority had theretofore been or might lawfully 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 annexel 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 16th Car. I, c. 10.
By the Act of the 16 Car. I, e. 11, the 18th section of the 1 Eliz., c. 1, was wholly repealed, and by the 4th section of the same Statute all spiritual and ecclesiastical persons or judges were forbidden under severe penalties to exercise any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 Commission 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 I Eliz., c. 1, which should remain and stand repealed.
There is therefore no power in the Crown to create any new or additional ecclesiastical tribunal or jurisdiction, and th clauses which purport to do so, contained in the Letters-Patent to the Appellant and Respondent, are simply void in law. No Metropolitan or Bishop in any Colony having legislative institutions can, by virtue of the Crown's Letters-Patent alone (unless granted under on Act of Parliament, or confirmed by a Colonial Statute), exercise any coercive jurisdiction, or hold any Court or 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 jurisdiction or legal authority as Metropolitan, the Appellant agreed to give it to him 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 authority 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 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 importance, 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 Metropolitan. 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 jurisdiction.
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 Established 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 presented 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 inconvenience ani mischief. It is right to add, although unnecessary, that by the Act 3 and 4 Wm. IV, cap. 41, which constituted this Tribuna!, Her Majesty has power to refer to the Judicial Committee 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 that on the 10th June, 1864, it was ordered by Her Majesty in Council that the Petition and Supplemental Petition the Appellant should be, and the same were, thereby referred to this Committee to hear the same and report their opinion thereupon to Her Majesty.
Their Lordships, therefore, will humbly report to Her Majesty their judgment and opinion that the proceedings taken iy the Bishop of Cape Town, and the judgment or sentence pronounced by him against the Bishop of Natal, are null and voi
in law.
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