lished by the colony herself under the authority of her new Sovereign and with his express or tacit sanction. Such is also the doctrine of the English public law. It is now a well established principle, although for a lo time contested and denied, that the royal supremacy in spiritual matters and the establishment of the national church do not extend to the colonies; that on the contrary all colonial churches are on the same footing and all intirely independent of the civil courts in spiritual matters, unless the contrary be specially enacted or declared by the colonial legislature.

In the case of the Reverend Mr. Long v. The Lord Bishop of Capetown, the Privy Council held that "the Church of England in places where there is no church established by law is in the same situation with any other religious body, in no better but in no worse position."

In the case of Dr. Colenso, Lord Bishop of Natal,† decided by the Privy Council on the 20th March, 1865, the Lord Chancellor speaking for the Judicial Committee, said: "The United Church of England and Ireland is not a part of the Constitution

in

any colonial settlement, nor can its authority, nor those who bear office in it, claim to be recognized by the law of the colony, otherwise than as members of a voluntary association." Farther on, he adds: "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, be treated as part of the law which the settlers carried with them from the Mother Country."

In the case of The Lord Bishop of Natal v. Gladstone,‡ Sir John Romilly, Master of the Rolls, summed up as follows: "The members of the Church of South Africa may create an ecclesiastical tribunal to try ecclesiastical matters between themselves, and may agree that the decisions of such a tribunal shall be final, whatever may be their nature or effect. Upon this being proved the civil tribunal would enforce such decisions against all the persons who had agreed to be members of such an association, that is against all the persons who had agreed to be bound by these decisions, and it would do so without inquiring into the propriety of such decisions-"

The principles laid down in these leading cases have been reaffirmed in 1869 in the cause of The Lord Bishop of Capetown v. Bishop of Natal, wherein Lord Justice Giffard said, in the name of the Judicial Committee. that "the conclusions arrived at in any of these cases, have scarcely been disputed and cannot be successfully controverted."

In an opinion given by the Solicitor-General, Sir John Coleridge, Sir Roundell Palmer and Dr. Deane, in April, 1869, these high authorities say: "We cannot see that any tribunal, civil, criminal, or ecclesiastical, exists in Natal which can determine whether the doctrinal opinions of Dr. Colenso are erroneous or not, and can enforce its decisions.

"It has been suggested that the Crown as visitor, or as supreme in causes ecclesiastical, or by virtue and in exercise of some other supposed power, may be able either by Commissioners specially appointed, or by means of the Privy Council, to hear and determine the points raised against Dr. Colenso.

"We are unable to find the slightest ground on which this suggestion can be supported.

"The Crown is supreme over all causes ecclesiastical in the same and in no other sense, and to no greater extent, than the Crown is supreme over causes temporal,-that is, by law, and by means of the various established Courts of law.

"The Submission of the Clergy Act (25 Hen. 8, c. 19) gave no such power to the Crown. Section 4 of that Act made it lawful for the parties grieved by any decision of an ecclesiastical judge in England to appeal to the King in chancery, for which Court of Appeal the Judicial Committee of the Privy Council is now substituted.

"No argument in favour of the power of the Crown can be derived from 3 and 4 Will. 4, c. 41, s. 4, by which it is enacted that it shall be lawful for His Majesty to refer to the Judicial Committee for hearing or considering any such matters as His Majesty may think fit; and such committee shall thereupon hear or consider the same, and shall advise his Majesty thereon in manner aforesaid.

"To make this section applicable to the judicial determination of an ecclesiastical matter would be in effect to restore the High Commission Court. The section is to be taken as referring to

* 3 L.R.P.C., p. 1.

questions not of judicial cognizance on which the Crown may desire to be solemnly advised by persons conversant with the law.

"We are therefore of opinion that no means at present exists for trying before any tribunal competent to decide the question whether or no Dr. Colenso, the present Bishop of Natal, has advocated doctrinal opinions not in accordance with the doctrine held by the Church of England; and assuming the present Bishop of Natal to have been guilty of an ecclesiastical offence, no steps can be taken to bring him, as such Bishop, before any tribunal."

In the United States, which were, as English colonies, settled under the authority of the English laws, the ecclesiastical law is laid down to the same effect. "Churches," said Chief Justice Shaw in 1850, "have authority to deal with their members for immoral and scandalous conduct, and for that purpose to hear complaints, to take evidence and to decide; and upon conviction to administer proper punishment by way of rebuke, censure, suspension and excommunication. To this jurisdiction every member, by entering into the church covenant, submits and is bound by his consent."

In Louisiana, Mr. Justice Nicholls held in 1843 † that the treaty of cession to the U. S. "guarantees to the inhabitants of Louisiana the unrestrained exercise of their religion, and recognizes the right of self government in the Roman Catholic Church, as then known and established." In Appeal, Martin J., reversed this decision, the learned judge being of opinion "that the treaty of cession, art. 3, provides that the inhabitants of the ceded territory, shall as soon as possible, be admitted into the Union or Confederation of the U. S. and that in the meantime they shall be protected in their persons, property and the free exercice of their religion. Since the 30th of April 1812, the day on which Louisiana took her rank as an independent State among her sisters, that article of the Treaty has ceased to have any political effect whatsoever, and has become obselete." Thus in Louisiana no tre aty guarantees the free exercise of the Church of Rome; yet the learned judge (Martin) concluded: "Neither the Pope, nor any bishop, has, within this State, any authority, except a spiritual one; and as courts of justice sit to enforce civil obliga

* Farnsworth vs. Storrs, 5 Cushing 415.

†The Church of St. Francis of Pointe Coupée v. Martin, 4 R. 62.

tions only, they never attempt to coerce the performance of those of a spiritual character."

If under the public common law of England as affirmed by these authorities, all colonial churches are on a footing of equality; if the Sovereign himself, although Head of the Established Church of England, cannot receive appeals from the judgments given by the ecclesiastical authorities in communion with that Church; if, furthermore, the constitution of every colonial church is sacred and inviolable, to be maintained and protected by the civil courts, provided, of course, that it be not at war with public morality and the public peace, or positively condemned by the legislation of the colony; if, finally, no court can take cognizance of any matter purely ecclesiastical, how can it be asserted that, by virtue of that constitutional law, the Church of Rome, whose members are religiously bound to exclusive and entire obedience to the authorities of their church in matters spiritual, is subject likewise to the jurisdiction of the civil courts in the same matters? No! the Church of Rome, like the Church of England, like all Protestant dissenting Churches in Canada, is entirely free in spiritual things, and is therefore subject, so far as these matters extend, to the sole jurisdiction of her own constituted authorities.

That such is the law existing in and applicable to the colonies, ought not to be matter of surprise: such was the law in England before the reformation; that is before the changes made by the statutes of Henry VIII and Elizabeth. Whatever diversity of opinions may prevail among jurists as to the legality of Papal intervention in temporal matters before the era of the Conqueror, there can be no doubt that the English Crown did not arrogate to itself any pretention to be supreme judge in ecclesiastical matters until it had effected the complete separation from the Church of Rome. In the year of 1533, when Henry VIII had secretly married Anne Boleyn and had determined on a rupture with Rome, the statute 14 Henry VIII, c. 19 was passed, the preamble whereof declares: "that the body politic of the realm of England is divided in terms and by name of spirituality and temporality; ......the body spiritual whereof having power when any cause of the law divine happened to come in question, or of spiritual learning, then it was declared, interpreted and showed by that part of the said body politic, called the spirituality, now being usually called the English Church...... and the laws temporal, for trial of property of lands and goods, and for the

consideration of the people of this realm in unity and peace, without rapine or spoil was, and yet it is administered, adjudged and executed by sundry judges and ministers of the other part of the said body politic, called the temporality."

Thus, at that period, the Parliament of England still acknowledged that spiritual things were wholly subject to the ecclesiastical jurisdiction. No allusion was then made to the appeal to the Sovereign, doubtless for the reason that he had not yet been proclaimed supreme Head of the Church of England. The Statute 14 Henry VIII, c. 19, does not even abolish all appeals to the Court of Rome. The commentators on the Ecclesiastical Judgments of the Privy Council, very properly remark, (p. xxxii): "It is material to notice, 1. That the Statute of which the preamble has been quoted, by no means relates to all ecclesiastical causes. It is limited to questions of matrimony, wills and titles. Whatever had been the course of appeals in matters of doctrine and clerical discipline, remained unaltered, and it would seem that such causes might still have gone on appeal to the Court of Rome."

It was not till the enactment of the 25 Henry VIII, c. 19, that it was commanded that no manner of appeals shall be had to the See of Rome of what nature, condition or quality soever they be of, under the penalties of præmunire. Such appeals to the Pope were to be made to the King in Chancery, ss. 3 and 4. Section 6 enacts distinctly that parties appealing shall proceed in a form similar to that which had been made to the Pope: "in like manner and form as they used before to do to the See of Rome."

That the appeal in ecclesiastical causes was made in England up to that time not to the Sovereign but to the Pope, is plain from a number of other Statutes. Thus the 28 Henry VIII, ch. 6, s. 2, declares that the subjects shall appeal to the King, as they or any of them were wONT and accustomed to have in their provocations, appeals and other process in cases of debate and contention, to and from the Bishop of Rome. The words as they were wont and accustomed show that the appeal to the Pope was not an innovation introduced into the English public law, as has been asserted by some writers, but a custom, that is according to the definition of the term, a right existing and exercised from time immemorial. It was also the law throughout the VOL. II.

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No. 2.