Mountague Bernard

“ Jurisdiction may exist in a religious society, as well as in a political one; excommunication 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 religious societies. But where a religious society has been taken under the tutelage of the State, the jurisdiction which it would have exercised over its members is apt to become merged, and the sanctions appropriate to that jurisdiction lost, in those which the State supplies. ”

“ But the arbitrator is not appointed, directly or indirectly, by the Sovereign to declare the law; his award is not an authoritative declaration of the law; it is binding only on the parties, incorporating itself in fact with the original 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 Sovereign himself speaks through the mouth of a Judge, and arms him with all the sanctions of the law. ”

“ 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 Bishop subject to? None. What legal authority or supremacy can he, as Bishop, exercise over others, or can anyone else, from the Queen downwards, 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 obligations: to create new legal rights and obligations is to make new laws, which the Crown, by hypothesis, has no power to do. ”

“ A contract for the sale of a coal-shed, and one which implicitly embodies 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 declares 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. ”

“ To speak, then, of inhabitants of a colony where there is no established Church as being members, or forming; part, of the the established Church of England and Ireland, is nonsense, if we use 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 therefore can have no existence. ”

“ It is evident from this that a religious society may be only partially established, and that different religious societies may be established, not only in different 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 quasi-corporations, should not be granted in the French Empire to Protestant Consistories, or in a British colony to office-holders of a dozen different religious denominations. ”

“ On this subject—on the real nature and unity of that great and widely-scattered society which 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 organization of a Church should be vigorous and firmly strung, or lax and pliant—on these and other questions lying outside the range of the foregoing remarks every man has a right to his own opinions, and I have mine. ”

“ We do not mean by it a society to which a man may belong or refuse to belong at his pleasure: if we did, the Established Church in England would be a voluntary society, for even in England no subject of the realm is under any legal obligation to belong to the Established Church. Nonconformity is recognised 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 ”

“ A judge, who had to enquire what were the tenets and discipline of an unestablished society calling themselves members of the Church 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. ”

“ A minister sent out by the Scottish Establishment, and a Bishop, priest, or deacon sent out by the English Establishment, are alike destitute of any public character or office, if neither of those religious societies be an establishment in the place to which they go. ”

“ The power of appointing a Bishop stands, of course, on wholly different ground from that of appointing those civil officers who are necessary for the transaction of public business and the administration of justice in a colony, and whom the Crown, as head of the executive government throughout the Empire, is authorized to appoint by warrant wherever their services are required. A Bishop, unless he be a Bishop of a Church by law established, is no more a public functionary than a Baptist minister is ”

“ 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. ”

“ It is in the power of Parliament—it is within the competence of Colonial Legislatures—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 religion, such as we have not seen before. ”

“ For 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. ”

“ The settlers take with them all those laws which concern private 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 presumed to have that common 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 mentioned by Blackstone of revenue, police, and an established Church, which from the nature of the case cannot exist in any society where they have not been instituted. It cannot even be asserted as a universal proposition, that they take with them those laws which lay down the definition and punishment of crime. ”

“ As King, he is entrusted by the law with 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 Church 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 VIII. and Elizabeth. ”

“ 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 settled by a line of decisions: the only difficulty which might be anticipated lies in applying the principle to the facts. ”

“ The decision, however, was much more extensive than this. For the Committee excluded from consideration both the nature of a Metropolitan'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 dependent Legislature. ”

“ It follows that no religious society in such a colony can possibly hold the tenets of the English Church [1]
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 Rolls, 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 ”