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 V. il,,PP ii.^i^igi^ni
 
 REMAEKS 
 
 ON 
 
 SOME LATE DECISIONS 
 
 RESI-ECTIXG 
 
 THE COLONIAL CHURCH. 
 
 BY 
 
 MOUNTAGUE BERNARD, M.A., 
 
 CHICHELE PROFESSOR OF INTERNATIONAL LAW AND DIPLOMACY IN THE 
 
 USIVEIWITY OE OXFORD. 
 
 ©xforti anti ilontion: 
 
 JAMES PAllKEll AND CO. 
 
 December, 1806.
 
 IJ-uUci) bi) I'.tmcs |l;>vlur uuO Co., eLiobu-nurb, (iVvlovb,
 
 
 "DROBABLY I am not the only person who has 
 -*- found it difficult to understand clearly the com- 
 bined effect of some late decisions on the Colonial Epi- 
 scopate and the Colonial Church. "When such a diffi- 
 culty occurs, the first thing to be done is to make out 
 as- exactly as may be the meaning of the words which 
 we employ, and reduce to as much certainty as they 
 will bear the legal conceptions with which we have 
 to deal. Having tried to do this in the present 
 case for my own satisfaction, I am tempted to print 
 what I have written, for the use of others who 
 may share my difficulty and into whose hands this 
 paper may fall. Such a process is almost inevitably 
 dry and tiresome, and this paper will be dry and tire- 
 some. But it will, at any rate, be short. It has no 
 pretensions to be an examination of the three judg- 
 ments in question ; it is merely an attempt to bring 
 into a stronger light some points which I conceive to 
 be involved in them. If, where great authorities 
 have spoken, I express an opinion of my own, I do 
 so respectfully, as one of the public, on a matter 
 which has been thrown open for discussion. 
 
 1. The substantial point decided by the Judicial 
 "Long ,. Bi- Committee of the Privy Council in the ap- 
 town." peal case of "Long v. the Bishop of Cape- 
 
 town," was, that persons calling themselves members 
 of the Church of England in the Cape Colony stand, 
 
 a2
 
 in the eye of the law, on precisely the same footing as 
 a voluntary religious association (such as a Dissent- 
 ing community) stands on here. To the apprehen- 
 sion of a lawyer this is clear and satisfactory, so far 
 as it goes. The principle on which the Court of 
 Chancery acts when called on to deal with a dispute 
 among the members of a Nonconformist body is set- 
 tled by a line of decisions : the only difficulty which 
 might be anticipated lies in applying the principle 
 to the facts. 
 
 Bishop Gray had in that case assumed to deprive 
 a clergyman of his spiritual charge, which carried with 
 it the right to officiate in a particular church and re- 
 ceive the income of a trust-fund appropriated to the 
 support of that church. It was conceded that by the 
 terms of the trust, coupled with Mr. Long's own acts, 
 the Bishop was authorized to do this for any cause 
 which would have warranted the deprivation of a bene- 
 ficed clergyman in England; but it was held that 
 Mr. Long's ofi'ence was not such a cause. 
 
 2. In "the matter of the Bishop of Katal" the Ju- 
 '■inthematter dicial Committee hcld that Bishop Gray did 
 of Natal. "'^ °^^ not staud to Bishop Colenso in the relation 
 of Metropolitan to Suffragan, and had not authority to 
 deprive or depose him. The decision, however, was 
 much more extensive than this. For the Committee 
 excluded from consideration both the nature of a Me- 
 tropolitan's powers (which had been chiefly discussed 
 in argument), and the alleged cause of deprivation, and 
 founded their conclusion on the broad ground that no 
 power to deprive for an ecclesiastical offence could 
 exist except by grant of the Crown, and that no such 
 power could be granted by the Crown to be exercised 
 in a colony possessing, at the time of the grant, an in-^*^%:
 
 dependent Legislature. The judgment contains the 
 following passages : — 
 
 "After a colony or settlement has received legislative 
 institutions, the Crown (subject to the special provisions of 
 any Act of 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 liead of tlie Chui'ch, 
 has a right to command the consecration of a Bishop ; but it 
 has no jDOwer to assign him any diocese, or give him any 
 sphere of action, within the United Kingdom. The United 
 Church of England and Ireland is not a part of the con- 
 stitution in any colonial settlement." 
 
 " 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." 
 
 Doubts, not wholly unreasonable, may, I conceive, 
 be suggested as to the exact force and extent of this 
 decision. The force of a decision depends on the 
 jurisdiction of the Court; the extent of it depends, 
 not on the language employed, but on the question 
 presented for adjudication, l^o Court can decide a 
 question not brought before it ; nor can language 
 the most laboriously positive transform a dictum into 
 anything more than an expression of opinion. The 
 question submitted by Dr. Colenso to Her Majesty in 
 Council was, whether Dr. Gray had, or had not, autlio- 
 rity to deprive him. Authority to deprive may exist 
 {a) by law ; {h) by virtue of a contract previously en- 
 tered into by the person deprived ; [c) by the terms 
 of a trust, of which the person deprived claims the 
 benefit. Whether, in adjudicating on the petition, 
 Her Majesty in Council assumed jurisdiction as
 
 supreme ecclesiastical judge, or as a civil judge 
 authorized to interpret her own Letters Patent, and 
 to determine on their validity, I do not clearly un- 
 derstand : but, whatever jurisdiction she might be 
 supposed to have in either of these characters, she 
 could, I conceive, have none to decide any question 
 but this— whether the sentence of deprivation was, 
 or was not, a legal sentence — a sentence warranted 
 (that is) by ecclesiastical law, or warranted by the 
 Letters Patent. Whether it could be supported on 
 the ground of contract or trust, could not be de- 
 cided one way or another, except by the civil tri- 
 bunals having jurisdiction in litigated questions of 
 property or civil rights dependent on contract or 
 trust : and the Queen in Council docs not, as far 
 as I am aware, constitute one of those tribunals, 
 except when she receives appeals from civil courts 
 in the colonics. 
 
 Be this, however, as it may, the judgment was 
 .commonly understood to establish that there were no 
 Bishop and diocese of Natal known to the law. 
 
 3. It has now been held by the Master of the Polls, 
 "Bishop of Na- ^^^t there are a Bishop and a diocese of 
 and^cTs! ^"atal known to the law, and within the 
 CoioSai Bish^ meaning of the founders of the Colonial 
 opricsFund." bishopries Fuud ; and, as a part of the 
 ground of that decision, it has been held, or asserted, 
 that the Bishop of K'atal has jurisdiction even to de- 
 prive a clergyman officiating in the diocese of Natal 
 for sufficient cause. It was asserted with reason as 
 a ground of the decision ; for what sort of a diocesan 
 would he be who had no jurisdiction at all? This 
 judgment appears to be at variance with that of the 
 Judicial Committee '' in the matter of the Bishop of
 
 ITatal," unless it be true that the word jurisdiction, 
 or the phrase " authority to deprive," is used by the 
 Judicial Committee in one sense, and by the Master 
 of the Eolls in another. Beyond this, there are in the 
 two judgments dicta which, taken in their plain gram- 
 matical sense, seem to militate against each other, and 
 can with difficulty, I venture to say, be reduced, or 
 tortured, into harmony by the most skilful master of 
 language. 
 
 The Master of the Eolls's judgment contains the 
 following passages : — 
 
 " It would be erroneous to say that the Crown can create 
 no See or Diocese within such a colony as Natal, or Cape- 
 town." 
 
 "It is not declared by the judgment of the Privy Council 
 that the Bishop of Capetown has no effective ecclesiastical 
 jurisdiction, unless in the word * effective' is included the 
 word ' irresponsible.' 
 
 " The Bishop of Capetown, the Bishop of Natal, the 
 bishops of all colonies similarly circumstanced — i.e. having 
 an established Legislature, but no established Church — can, 
 as regards the ministers and congregations of the Church 
 of England within their diocese, exercise all the powers of 
 a bishop ; they can ordain, confirm, and consecrate ; they 
 can do more ; they can visit, investigate, reprove, suspend, 
 and deprive ; and if, in so doing, they keep within the dvie 
 scope of their authority, as established by the discipline of 
 the Church of England as by law established, and proceed 
 in the exercise of that authority in a manner consonant with 
 the principles of justice, their acts are valid, and will be en- 
 forced by the legal tribunals. 
 
 " The district or colony of Natal is a district presided over 
 by a bishop of the Church of England, which is properly 
 termed a see or diocese ; the ministers, deacons, and priests, 
 oflB.ciating within that district, and also all the laymen pro- 
 fessing to be members of the Church of England, constitute 
 not a Church in Natal in union and full communion with
 
 the Church of England, but a part of the Church of Eng- 
 land itself ; and all the ministers, priests, and deacons, there 
 officiating, and all the persons composing the several flocks, 
 are members and brethren of the Church of England in the 
 strict sense of the term." 
 
 Upon these decisions I defy anybody to say for cer- 
 tain whether there is, or is not, a Bishop and a dio- 
 cese of Natal. And this uncertainty affects in an 
 equal degree nine at least of our Colonial BishojDrics, 
 and throws doubt, according to a careful estimate, on 
 twenty-five. It affects, not merely the position of the 
 Bishops themselves, but a multitude of transactions, 
 which have proceeded on the assumption that they 
 had a diocesan character; and it may possibly raise 
 a question whether persons ordained by them are, or 
 ever could be, capable of receiving preferment, or even 
 ministering in England. 
 
 I. 
 
 What do we mean when we speak of a " voluntary" 
 Meaning of the rcHgious socioty, as distinguished from a 
 tary." rcUgious socioty established by law ? We 
 
 do not mean by it a society to which a man may be- 
 long or refuse to belong at his pleasure : if we did, 
 the Established Church in England would be a vo- 
 luntary society, for even in England no subject of 
 the realm is under any legal obligation to belong 
 to the Established Church. Nonconformity is recog- 
 nised by the law as a fact, and is not prohibited. 
 Nor do we mean the absence of endowments, or 
 of political power, or of external dignities, or of 
 internal discipline, or of doctrinal standards, or of 
 formularies ; for of these things some are plainly 
 unimportant, and others are possessed in a greater
 
 or less degree by most of the bodies which we call 
 '' voluntary " or unestablished. What we do mean, 
 as a little reflection will shew, is this — that the rules 
 of an established society are part of the law of the 
 land, and enforced as such ; whilst the rules of a volun- 
 tary society are not part of the law of the land, and 
 are not enforced as such. When the members, or 
 any of the members, of a religious society have, as 
 such, special rights and obligations, capacities or in- 
 capacities, created by the law of the land — when, in 
 two words, they have a legal status — the society is 
 established : they have none when it is not esta- 
 blished. A parish clerk has, as parish clerk, a legal 
 status : the President of the Wesleyan Conference, or 
 of the General Assembly of the Free Church of Scot- 
 land, the Primus of the Scottish Episcopalian Church, 
 a Pioman Catholic Bishop of Glasgow, have, as such, 
 no legal status. If the law of the United Kingdom 
 were to cease to regulate, the rights and duties of 
 members of the Established Churches of England and 
 Scotland, these bodies would become voluntary so- 
 cieties. If it undertook to regulate those of members 
 of the Free Church of Scotland, that body would cease 
 to be a voluntary society. 
 
 It is evident from this that a religious society may 
 be only partially established, and that different reli- 
 gious societies may be established, not only in dif- 
 ferent parts of the same kingdom, (as is the case in 
 England and Scotland,) but in the same place at the 
 same time. There is no logical reason, for instance, 
 why particular legal rights, such as that of holding 
 property as corporations or 5'?;«s/-corporations, should 
 not be granted in the French Empire to Protestant 
 Consistories, or in a British colony to ofiice-holders of 
 
 A 3
 
 10 
 
 a dozen different religious denominations. In so far 
 as a religious society possessed such legal rights, it 
 would be established ; though, if it had them to a very 
 limited extent, we should not call it so, because this 
 would not be its predominant character. 
 
 It is evident further, that, so far as a religious 
 An Established socictv is held to^-ether bv the law of the 
 
 Church is a po- *'. . ° "^ , . 
 
 uticai society, land, it is uot properly a religious, but 
 a political, society. What is a political society ? It 
 is a number of persons held together, or made a 
 society, by subjection to a sovereign authority, whose 
 permanent commands are municipal law. What is 
 a religious society ? That is a notion less easy to 
 define: it includes, at any rate, some or all of these 
 things, — the acceptance of a common creed, common 
 rules, a common organization, the habit of acting 
 together for common objects ; the creed, the objects, 
 the sanctions which support the rules, — in a word, 
 the ties which bind the society together, — being 
 religious. Whatever more than this the idea of his 
 Church, for example, presents to the mind of a reli- 
 gious man, is matter of belief, or sentiment, or opinion, 
 and does not enter into the definition of a religious 
 society in general. The Churches of England and Scot- 
 land by law established are, as such, political societies. 
 French writers commonly, and some persons amongst 
 ourselves, regard the Established Church in England 
 as a society merely political; so that, if the whole 
 body of ecclesiastical law, as it is called, (that is, 
 the laws of the land in reference to the Church,) 
 were repealed to-morrow, the Church itself would 
 cease to exist. It would necessarily cease to exist 
 as a political society. But there is also in England, 
 under the name of the Established Church (whether
 
 11 
 
 co-extensive or not with the Establishment itself, ac- 
 cording to any legal definition which could possibly be 
 assigned to it), what substantially answers to the con- 
 ception of a religious societ}'^; and this religious so- 
 ciety would not, in the supposed case, necessarily 
 or probably cease to exist, though the sudden re- 
 moval of those legal sanctions on which it has for 
 centuries relied, and which have in practice gra- 
 dually eclipsed and partially superseded the sanctions 
 of conscience and religion, would be a shock of the 
 severest kind. 
 
 To speak, then, of inhabitants of a colony where 
 The expression ^jjg^.g {g -^q established Church as beins: 
 
 that the Colo- O 
 
 niai Church is tncmbers, or formino; part, of the esta- 
 
 a " part of ' O i J 
 
 the Established bUshed Church of England and Ireland, 
 
 Church not le- _ ^ ^ ' 
 
 gaily correct, {g nouseuse, if WO usc that phrase in its 
 literal acceptation as meaning the political society 
 constituted under that name by law in England and 
 Ireland. Where they live, the laws which make 
 that society do not exist, and the society itself there- 
 fore can have no existence. To use this expression, 
 therefore, is to affirm, what some deny, that there is, 
 under that name, a religious society as well as a poli- 
 tical one ; and it really amounts to no more than an 
 assertion that there are in the colony persons ac- 
 cepting the same religious beliefs, the same forms 
 of worship, and, so far as may be, the same or a like 
 religious organization as are accepted by the per- 
 sons composing that religious society in England. 
 I do not see what else it can mean ; nor, although 
 persons calling themselves members of the English 
 Church in Natal may have an organization exactly 
 similar to that of the English Church in England, 
 as well as derived originally from the same sources.
 
 12 
 
 do I see that they could be said to have one which 
 is common, or the same. A Wesleyan in Natal 
 is probably liable to be censured or expelled from 
 communion by the very same persons who would cen- 
 sure or expel, for like cause, a Wesleyan in England ; 
 just as a Presbyterian minister in Lancashire is, or 
 was, liable to be cited before a Presbytery in Edin- 
 burgh, and to be declared out of communion by 
 a General Assembly in Scotland. But in the Englisli 
 Church jurisdiction is diocesan and provincial ; and 
 a Churchman in Natal, even ordained and with cure 
 of souls, is not subject to the same jurisdiction as if he 
 were in London or York. Not even when he reaches 
 the last appeal open to him does he find himself be- 
 fore the same Court. For nobody, I suppose, will 
 contend (though I am here partly anticipating what I 
 shall have to say by-and-by) — nobody will seriously 
 contend that an appeal would lie from a sentence of 
 deprivation by a Bishop of Natal or any Bishop simi- 
 larly situated to the Queen in Council, or will confuse 
 with such a proceeding an appeal from a civil tribu- 
 nal, like that prosecuted by Mr. Long. In the former 
 case there would be, in the eye of the law, no Court, 
 no cause, no judgment, and therefore no appeal : in 
 the latter, the appeal is not from the Bishop's judg- 
 ment, nor to the Crown as an ecclesiastical judge. 
 It is not then, I conceive, strictly accurate to say 
 that inhabitants of a colony, who may call them- 
 selves members of the Church of England, or of 
 the United Church of England and Ireland, are 
 bound by the tenets and discipline of that Church 
 by reason of their being actually a portion of it. 
 They incur, in fact, by calling themselves so, no 
 legal obligations which they would not have incurred
 
 had they called themselves members of the Church of 
 South Africa. The difiference is, that the one de- 
 scription implies the acceptance of tenets and rules 
 which are known, and the other of tenets and rules 
 which are not known ; and that, if the question what 
 their tenets and rules were should be raised inci- 
 dentally in a civil Court, it would be unnecessary in 
 the one case to produce evidence which would be 
 necessary in the other. 
 
 Every religious society properly so called — that is, 
 Doctrinal Stan- cvcry uumbcr of pcrsons having not only 
 
 dards of Colo- t • ^ t n t i 
 
 niai Church, commou rciigious bcliets, but some com- 
 mon religious organization — has certain selected tenets 
 (not necessarily the most important in the opinion 
 of all its members) which it regards as tests of 
 agreement with itself, or as terms of communion. 
 The Articles and Formularies are in England made 
 by law the standards, to a certain extent, of faith 
 and public teaching for clergymen of the Established 
 Church, and we have accepted them as such. The 
 Apostles' Creed is, in the Baptismal Service and the 
 Service for the Visitation of the Sick, treated as com- 
 prising the terms of communion. A judge, who had 
 to enquire what were the tenets and discijDliue of an 
 unestablished society calling themselves members of 
 the Chui'ch of England, would be justified in assuming 
 that these standards occupied among them a position 
 analogous to that which the same standards hold 
 among ourselves. 
 
 II. 
 
 The word jurisdiction occurs so often, and plays so 
 Meaning of important a part in these questions, that it 
 
 " Jurisdic- •■,■,'■,. 1 n ■ 
 
 tion." IS worth while to make sure of its meanmsr. 
 
 The first mle of sound reasoning is to use the same
 
 14 
 
 word in the same sense throughout the same train of 
 argument, or, whenever it bears a new sense, to mark 
 the difference clearly. Loosely, we speak of jurisdiction 
 as synonymous with authority to command. More 
 accurately, it means authority to pronounce a judicial 
 sentence. By a sentence I mean, not a mere opinion on 
 a disputed question, which may be disregarded at plea- 
 sure, but a declaration or order carrying with it some 
 obligation to obedience. If by disobedience I expose 
 myself to some legal sanction — to be imprisoned for 
 contempt of court, or to have my goods seized by the 
 sheriff — that is a legal obligation ; if to some evil 
 not imposed by law, such as the expulsion from a club 
 to which I like to belong, there is a force analogous 
 to, but not identical with, a legal obligation ; if only 
 to my own self-reproach, nothing but what we call 
 a moral obligation remains. The meaning of juris- 
 diction, then, is not limited by adding to it the word 
 '' coercive," since all jurisdiction must be coercive in 
 one way or another. Jurisdiction may exist in a re- 
 ligious society, as well as in a political one ; ex- 
 communication may to some men be a more dreadful 
 penalty than fine or imprisonment is to others ; and 
 jurisdiction in some shape does exist in most reli- 
 gious societies. But where a religious society has 
 been taken under the tutelage of the State, the juris- 
 diction which it would have exercised over its mem- 
 bers is apt to become merged, and the sanctions ap- 
 propriate to that jurisdiction lost, in those which the 
 State supplies. 
 
 Jurisdiction is necessarily " coercive," but it is not 
 "Legar' Juris- necossarily "legal:" and it may be legal 
 
 diction. Two . . . , 
 
 senses. m a primary, or m a secondary, sense. 
 
 An arbitrator appointed under a deed or agreement
 
 15 
 
 has jurisdiction which can be called legal only in 
 a secondary sense. The law will enforce the arbitra- 
 tor's award, if properly made. But the arbitrator is 
 not appointed, directly or indirectly, by the Sove- 
 reign to declare the law ; his award is not an autho- 
 ritative declaration of the law ; it is binding only on 
 the parties, incorporating itself in fact with the ori- 
 ginal agreement, and, as a part of that agreement, 
 standing or falling with it ; the legal force which it 
 possesses it obtains only from the general law which 
 secures the observance of contracts. But the Sove- 
 reign himself speaks through the mouth of a Judge, 
 and arms him with all the sanctions of the law. 
 
 The jurisdiction exercised within a voluntary reli- 
 jurisdiction gious socioty is, like that of an arbitrator, 
 fuSy\o°" founded on compact ; and it is therefore 
 cioty. jjq|- ^ legal jurisdiction in the primary and 
 
 ordinary sense of the phrase. A sentence of depri- 
 vation pronounced by the Wesleyan Conference, by 
 the General Assembly of the Free Church of Scotland, 
 by a Bishop of the Scottish Episcopal Church, by 
 a Colonial Bishop in a colony where the Church is 
 not established, is an act which may, if it follows the 
 compact which gives the jurisdiction, have legal con- 
 sequences ; for it may work the exclusion of the de- 
 prived person from the benefit of an endowment or 
 the use of a place of common worship. But it is not 
 a legal sentence, because it is not the sentence of 
 a judge authorized to declare the law. 
 
 The jurisdiction, on the other hand, of an Eccle- 
 jurisdiction of siastical Court in England is as strictly 
 Courts! a legal jurisdiction as that of the Queen's 
 
 Bench. The Judge, be he Archbishop or Bishop, or 
 the judicial officer of an Archbishop or Bishop, sits
 
 16 
 
 under the authority of the Sovereign ; under that 
 authority he declares and applies a portion of the law 
 of the land ; and he is armed for that purpose with 
 legal sanctions, which may be effective like depriva- 
 tion, or ineffective like excommunication in such 
 a community as ours. Such an expedient as the sig- 
 nificavit was but a roundabout way of eking out the 
 powers of one legal tribunal by the machinery of an- 
 other. A penalty exactly the same in substance — de- 
 privation — may be inflicted by the Court of Chancery 
 upon a minister of a Presbyterian congregation who 
 forsakes the doctrines of Presbyterianism, and by the 
 Court of Arches upon a clergyman of the Established 
 Church who " depraves" the Book of Common Prayer. 
 But observe the difference. In the latter case, there 
 is an offence and a punishment — an evil (that is) in- 
 flicted by public authority for a public purpose : in 
 the former, there is neither punishment nor offence ; 
 there is a private injury, and a redress of it by civil 
 process. In the one case, the law violated is a com- 
 mand, regulating directly and of set purpose the public 
 teaching of religion : in the other, it is only the gene- 
 ral rule that property which is held in trust be ap- 
 plied in accordance with the trust. A contract for 
 the sale of a coal-shed, and one which implicitly em- 
 bodies the whole discipline and teaching of a great 
 religious denomination, are enforced in Chancery 
 on precisely the same grounds, and with the same 
 serene indifference to the nature of the matter in 
 hand. In short, rightly or wrongly, the law de- 
 clares the teaching of the Established Church to 
 be a matter of public concern, and that of every 
 other religious body whatsoever to be a matter of 
 private concern. It directly regulates the first; it
 
 17 
 
 refuses to take any notice, otherwise than incidentally, 
 of the second. 
 
 Unless this cardinal distinction is kept clearly in 
 view, the whole subject is lost in obscurity and 
 confusion. 
 
 III. 
 
 Let us apply the notions we have gained to the case 
 Application of of a colonv wlicro the Church is not esta- 
 
 previous re- , "^ 
 
 marks. blishcd, and where the Crown possesses no 
 
 power of legislation. What is the legal status of 
 a Bishop in such a colony? None. What legal 
 jurisdiction has he as a Bishop ? None. What legal 
 jurisdiction is he as a BishojD subject to ? None. What 
 legal authority or supremacy can he, as Bishop, exercise 
 over others, or can anyone else, from the Queen down- 
 wards, exercise over him ? None. What power has the 
 Crown to clothe him with a legal status ? None. A 
 new legal status means a new set of legal rights and obli- 
 gations : to create new legal rights and obligations is to 
 make new laws, which the Crown, by hypothesis, has 
 no power to do. The legal control of the Crown over 
 him vanishes of necessity together with his legal con- 
 trol over his clergy. That a legal supremacy in matters 
 ecclesiastical has no existence in such a colony is a 
 plain corollary of the proposition that the colony has 
 no Established Church. The Supremacy is a part of 
 the law of the Established Chnrch, and in such a co- 
 lony the Established Church is, as has been justly 
 said, not a part of the Constitution. Plain as all this 
 is, there is an evident reluctance to recognise it fully, 
 at which we can hardly wonder, when we consider 
 what it involves. But, whatever it may involve, it 
 is true. 
 
 It is at the same time true that a Bishop, though in 
 the eye of the law a mere private gentleman owing to
 
 18 
 
 courtesy any title or precedence which may be ac- 
 corded to him, may yet in fact exercise important 
 functions, and wield considerable powers. He may 
 do this by appealing to the religious sentiments and 
 convictions of the members of his communion; he 
 may do it also as being himself the object of a trust, 
 or as the person to whom, under a trust or compact, 
 obedience is due as a condition attached to the enjoy- 
 ment of a stipend, or the right to officiate in a church. 
 And his authority in cases of the latter kind will be 
 upheld, as an integral part of the trust or compact, 
 by the civil Courts, which all the while regard him 
 personally as a mere private man. As a Bishop, he is 
 nothing to them ; the law they administer knows no- 
 thing of Bishops. It appears to be held by some that 
 a right to appoint and to control persons whose situ- 
 ation is to be such as I have described, is among the 
 prerogatives of the Crown. The Master of the Eolls 
 stigmatizes with severity from the Bench those who 
 would "elevate the Church over the throne, or de- 
 pose the Sovereign from being the Head of the 
 Church in the colonies dependent on her." It seems 
 also to be supposed that this power of appointment 
 and control on the XDart of the Crown must be deemed 
 an element in the trust or contract among members 
 of the voluntary society itself, as being a funda- 
 mental tenet of the English Church. The declaration 
 in the Tliirty - Seventh Article that "the Queen's 
 Majesty hath the chief power in this realm of Eng- 
 land and other her dominions, unto whom the chief 
 government of all estates of this Eealm, whether they 
 be ecclesiastical or civil, in all causes doth appertain, 
 and is not nor ought to be subject to any foreign 
 jurisdiction," is construed by Lord Eomilly into an 
 assertion of such a tenet.
 
 19 
 
 1. There is, I hope, no disloyalty (we do not live 
 under the Stuarts) in temperately inquiring whether 
 a supposed prerogative really exists, especially a pre- 
 rogative of so singular a nature; nor yet in asking 
 whether such an office as either of these theories 
 would ascribe to the Crown is consistent with its dig- 
 nity, or with its constitutional functions and position. 
 I shall not enter into the general question of the Su- 
 premacy, the true meaning of the Thirty-Seventh Ar- 
 ticle, or the proper application of it to a British 
 colony in the nineteenth century, where there is no 
 Established Church, are no ecclesiastical Courts, and 
 can be no '^ ecclesiastical causes," and where all de- 
 nominations are on an equal footing. But I think it 
 not disrespectful to observe — 
 
 First, that legal language on this subject, borrowed 
 as it is in great measure from Tudor precedents and 
 Tudor legislation, is apt to be somewhat loose and 
 inflated, and requires, before you reason on it, to be 
 carefully reduced to its precise legal value ; 
 
 Secondly, that the Eoyal Supremacy is only a col- 
 lective name for a group of legal powers and attributes 
 in relation to the Established Church — powers and 
 attributes which form part of the prerogative, itself 
 part of the law of the land ; 
 
 Thirdly, that these powers and attributes, being 
 created by law, are circumscribed by law, and can be 
 exercised only in ways marked out by law ; 
 
 Fourthly, that the powers of appointing and de- 
 priving Bishops and of assigning dioceses to them 
 would not, for the reasons stated above, be lerfal 
 powers within a colony suck as I have been referring 
 to. The right to exert such powers therefore in re- 
 lation to such a colony cannot be part of the pre- 
 rogative of the Crown.
 
 20 
 
 2. Again it is to be observed that an appointment 
 made by the Sovereign by virtue of a trust or of a com- 
 pact among private individuals would not be made by 
 her as Sovereign, but as a person designated under that 
 description ; just as an appointment similarly made 
 by the Lord Chancellor would not be made by him as 
 Chancellor, but as a person so designated. But it is 
 surely needless to add, that neither the British Consti- 
 tution nor the theological standards of the Established 
 Church contemplate any action by the Sovereign upon 
 or towards the Church except in the character of Sove- 
 reign and by virtue of law. If, therefore, the Thirty- 
 Seventh Article have the force which Lord Eomilly 
 assigns to it, what follows ? It follows that the English 
 Church, as a religious society, cannot possibly exist in 
 such a colony as !N"atal. It follows that no religious 
 society in such a colony can possibly hold the tenets 
 of the English Church '''. 
 
 I do not propose to travel into the question further, 
 or to pursue the propositions which I have ventured 
 to assert to their logical or practical consequences. 
 One word, however, as to the future. Of the dangers, 
 vividly stated by the Master of the Eolls, to which 
 small and scattered religious bodies may be exposed 
 by the want of a common authority on disputed points 
 of faith and discipline, every thoughtful person must 
 be keenly sensible ; though it may, I think, be doubted 
 whether the real risks are quite as great, and whether 
 they are as unmixed an evil, as the habits of a lawyer, 
 and still more those of a Judge, would dispose him to 
 believe, and whether the one sole and aj)propriate in- 
 strument for counteracting them is a central Court of 
 law sitting in London. On this subject — on the real 
 nature and unity of that great and widely-scattered 
 ^ See note, p. 22.
 
 21 
 
 society whicli we call the Church of God, and its real 
 claims on the heart and conscience — on the question 
 whether it is intrinsically desirable that the organi- 
 zation of a Church should be vigorous and firmly 
 strung, or lax and pliant — on these and other ques- 
 tions lying outside the range of the foregoing re- 
 marks every man has a right to his own opinions, 
 and I have mine. It is in the power of Parliament 
 — it is within the competence of Colonial Legisla- 
 tures — to remove some existing doubts, to give to 
 the Crown powers which it does not now possess, to 
 create new legal relations between the State and reli- 
 gion, such as we have not seen before. But I am 
 strongly persuaded that, whatever we may think or 
 desire, whatever troubles and difficulties the Colonial 
 Church may have to encounter in time to come, what- 
 ever theories may be spun, or expedients imagined, 
 neither judgments of Courts, nor acts of local Legis- 
 latures, nor statutes of the Imperial Parliament, can 
 establish or perpetuate in the colonies an ecclesiastical 
 supremacy of the Crown over a single denomination ; 
 and I should see with regret endeavours in this direc- 
 tion, which must, as I think, in the long run multiply 
 embarrassments, and could only end in failure. The 
 view on Avhich the Colonial Office has acted durins: 
 a long course of years, in respect of Episcopal appoint- 
 ments, was supported originally by the authority of 
 some of the greatest English lawyers, and has re- 
 ceived a kind of implicit sanction from several Parlia- 
 ments ; but it has broken down at last, when judicially 
 tested, in a Court of law, and it would certainly, 
 sooner or later, have broken down in practice. The 
 principle that the Church in the Colonies is a volun- 
 tary society must be recognised frankly and thoroughly, 
 by the law and by Churchmen themselves ; and what-
 
 22 
 
 ever we do must be based on it, if we wish that what 
 we do shall last. 
 
 NOTE 01^ p. 20, 
 
 The word *' Sovcrcigu," when applied to a King or Q,uccn of 
 England, is used of course in a popular, and not in a strict, sense 
 — as a title, and not as a precise description of the powers really 
 possessed by the wearer of it. The same observation applies to the 
 words "supremacy" and "supreme," which indeed differ from 
 " sovereignty" and " sovereign" only as being different forms of the 
 same word. The King of England has not the power of imposing 
 his own will as law (which is the criterion of Sovereignty) in eccle- 
 siastical affairs, any more than in affairs not ecclesiastical ; that 
 power resides, not in him, but in a body of which he forms a part 
 or member. As King, he is entrusted by the law wath special 
 powers, and clothed with special attributes, collectively called his 
 Prerogative, in relation to foreign affairs, to war, to trade and 
 navigation, to the judicature, and other things — amongst the rest, 
 to the Clnu'ch by law established. The powers entrusted to the 
 Crown in relation to the Established Church, collectively called the 
 Supremacy, are a part, or have been affirmed to be so, of its old 
 common-law prerogative, declared and re-asserted, without being 
 precisely defined, by the Statutes of Henry YIII. and Elizabeth. 
 They arc not very extensive, consisting mainly of the power to 
 nominate Bishops and that of permitting and controlling, in modes 
 pointed out by law, the action of Synods and Convocations. Judi- 
 cially, the King in Council is the highest Court for ecclesiastical 
 appeals as he is for certain classes of appeals in civil cases, and as 
 the House of Lords is for other appeals : the Court in each case is 
 a Court of law, created and regulated by law ; and for personal 
 "supremacy," — for any personal action on the part of the Crown, 
 — there is no more room in ecclesiastical suits than in suits of any 
 other kind. It may be added that as the powers of the Crown 
 in reference to trade, navigation, the coinage, and the like, have 
 been limited and moulded by various Statutes, and the exercise of 
 them parcelled out among different administrative departments, so 
 the ecclesiastical prerogative has been operated upon by the Eccle- 
 siastical Commission Acts, and the Acts constituting and regulating 
 the Judicial Committee. 
 
 A vague metaphorical title like that of Head of the Church, or 
 a some^vhat exacter title like that of Supreme Governor, is nothing 
 in itself; it simply denotes certain legal powers and attributes in 
 relation to the Establishment, which are neither more nor less liable 
 to be extended by way of inference or analogy than the powers 
 lodged in the Crown with reference to war or trade. If it be 
 suggested, for instance, that the Crown has power to command the 
 Archbishop of Canterbiuy to consecrate a Bishop to whom no see 
 is assigned, that is a power the existence of which must be proved 
 like that of any other alleged power. That the Supremacy should 
 have worn, so to speak, a more personal aspect — that we should have
 
 23 
 
 been accustomed to tliluk of it as more closely attaclied to the 
 person' of the Monarch — than other prerogatives, is natural and in- 
 telligible. It resembles other common-law prerogatives in having 
 descended originally from times -svhen the King -was' really sove- 
 reign, controlled only by ii-regular, though powerful, influences, 
 and approached only in the way of petition and ad^dce. Eut it 
 connects itself, more sensibly than any other, with the traditions of 
 the Eoman Empire, the source whence Royalty, in media}val and 
 in modern Europe, has largely drawn its majestic titles and lofty 
 personal attributes; it was asserted by the Tudor Parliaments with 
 a vehemence of expression and an almost extravagant amplitude of 
 language, inspired, if not warranted, by the object they had in 
 view, the utter demolition of the dominion of the Popes; it was 
 exercised, during the great religious revolution which we call tlic 
 Reformadon, with somewhat of the rough, unscrupulous vigour 
 with which power is wielded in revolutionary times ; and Church- 
 men themselves have since that period, from tradition, from senti- 
 ment, and partly, too, from policy, been disposed to cling to the 
 notion of an inherent personal supremacy in the Crown as more be- 
 coming in theory and less formidable in practice to religion than 
 the paramount supremacy of Parliament. Yet it is as certain as 
 anything can be that the Supremacy is the creature of Constitutional 
 Law in England, and that Parliament could, if so minded, abolish 
 it to-morrow. If it were abolished, the Church as a religious 
 society would still hold the general duty of obedience to the civil 
 magistrate in temporal matters, and the lawfulness in foro con- 
 scienticB of submitting to him in what are called "mixed" matters. 
 And this is what the Colonial Churches hold in colonies where the 
 supremacy is not established by law. 
 
 It is quite possible, of course, for this portion of the law of Eng- 
 land to be law in a colony. By vii'tue of Imperial or colonial 
 enactments, of Crown legislation, or of what may be called the 
 original common-law of the colony — Dutch law in Natal, English 
 in Xew Zeahmd, Spanish in Trinidad, the Coutumc de Paris in 
 Lower Canada, the Code Civil in the [Mauritius — a special supre- 
 macy of the Crown in respect of a particular denomination may be 
 a part of the code administered in the colonial Courts. "Where it is 
 not so, the Crown may introduce it, but only if the colony be one 
 in which the Crown originally had legislative powers, and has not 
 relinquished them by the creation of a colonial legislature. Where 
 it does exist, the denomination in question would, to that extent, 
 be an established, and not a voluntary, society. These arc plain 
 propositions, which I reiterate only because it is so necessary 
 to look them fairly in the face. But it would surely be an absurd 
 proposition to say, that the Crown can have legal jurisdiction over 
 a Bishop, as such, in a place where a Bishop, as such, is an officer 
 unknown to the law. 
 
 The power of appointing a Bishop stands, of course, on wholly 
 different ground from that of appointing those civil officers who arc 
 necessary for the transaction of public business and the administra- 
 tion of justice in a colony, and whom the Crown, as head of the
 
 24 
 
 executive government throughout the Empire, is authorized to ap- 
 point by warrant wherever their services arc required. A Bishop, 
 unless ho be a Bishop of a Church by hiw established, is no more 
 a public functionary than a Baptist minister is; and he is not 
 a public functionary within a colony unless the Church be esta- 
 blished by Law within the colony. A minister sent out by the 
 Scottish Establishment, and a Bishop, priest, or deacon sent out by 
 the English Establishment, arc alike destitute of any public cha- 
 racter or office, if neither of those religious societies be an establish- 
 ment in the place to which they go. 
 
 It need hardly be added that the laws by virtue of which a Bishop 
 is a public functionary in England — belonging as they do to the 
 domain of public, and not to that of private law, and resting upon 
 circumstances which exist in England, but do not travel abroad 
 with Englishmen — are not among those laws which British settlers 
 in an unoccupied country take with them to their new home. The 
 principle is stated by Mr. Westlake (^Private International Laiv, 
 p. 137)- 
 
 "The settlers take with them all those laws Avhich concern pri- 
 vate rights between man and man, and the colonial tribunals must 
 enforce them; for such laws were common to the parties as fellow- 
 citizens in their homes, and they are i^resumed to have that com- 
 mon opinion of their equity which in the absence of enactment, and 
 since some such laws are necessary, is both a sufficient, and the 
 only possible, ground for their obligation : and this it is which is 
 meant when these laws are said to accompany Englishmen as their 
 birthright. They do not take with them the public department of 
 law, even so far as its contents may affect property, because that 
 department finds its expression in institutions such as those men- 
 tioned by Blackstone of revenue, police, and an established Church, 
 J which from the nature of the case cannot exist in any society where 
 J they have not been instituted. It cannot even be asserted as a uni- 
 versal proposition, that they take with them those laws which lay 
 down the definition and punishment of crime. Nor again into 
 a colony founded as here supposed can those laws be tacitly carried 
 which, like those of bankruptcy, though essentially private, belong 
 to the justitia attrihdrix and not to that cxpletrix, that is, dispose 
 of interests, and not simply do right between party and party on 
 the ground of property or obligation. Nor those which affect j)ri- 
 vate rights from no motive of private justice, but from a reference 
 to supposed public benefit, as in the case of the statute of charitable 
 uses. Eor the community formed by the settlers does not in any 
 manner continue or represent the person of the mother-country, so 
 that, even were the circumstances the same, the same views of 
 public policy should be attributed to it, in a way analogous to that 
 in which the settlers continue the chain of the legal principles 
 which are applicable to them as individuals." 
 
 All Souls' College, Oxfokd, 
 December, 1866.