Page:Remarks on Some Late Decisions Respecting the Colonial Church.djvu/27

 been accustomed to think of it as more closely attached to the person of the Monarch—than other prerogatives, is natural and intelligible. It resembles other common-law prerogatives in having descended originally from times when the King was really sovereign, controlled only by irregular, though powerful, influences, and approached only in the way of petition and advice. But it connects itself, more sensibly than any other, with the traditions of the Roman Empire, the source whence Royalty, in mediæval 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 the Reformation, with somewhat of the rough, unscrupulous vigour with which power is wielded in revolutionary times; and Churchmen themselves have since that period, from tradition, from sentiment, and partly, too, from policy, been disposed to cling to the notion of an inherent personal supremacy in the Crown as more becoming 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 tomorrow. 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 conscientiœ 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 England to be law in a colony. By virtue 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 New Zealand, Spanish in Trinidad, the Coutume de Paris in Lower Canada, the Code Civil in the Mauritius—a special supremacy 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 are 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 are necessary for the transaction of public business and the administration of justice in a colony, and whom the Crown, as head of the