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PUBLIC RECORD OFFICE

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the question of the ultimate connection of Church and State, where that connection is in practice scarcely felt at all, is too abstract to raise such feelings, except among a few of the clergy: there is, moreover, among the laity a sincere attachment to that connection, and a very great suspicion of that chiefly clerical party who are foremost in their desire to get rid of it.

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But whatever is decided as to giving the future Synods the power to throw off legal restrictions, I presume it will be agreed that they must not have the power given them to make decrees, or do any other acts which shall have any legal effect what- If this line be overstepped the Church is at once "established," or at least a distinction made between it and other religious communities.

ever.

All the support which a religious community requires from the law is this-that its rights of pro- perty in endowments should be maintained, and the

distribution and enjoyment of that property accord-

ing to the rules of the community sanctioned.

But this is done in England, as to Dissenting Esta- blishments, by the Court of Chancery; it is done in America as regards the Episcopal as well as other churches (see on this point Hoffman's Treatise on the Law of the Protestant Episcopal Church in the United States, p. 473: "Our courts of justice act through the medium of a maudamus, or a bill of injunction, in those cases which the right to property and civil privileges is involved, and in no others; and some- times they are called upon to determine the force of the sentences of Church judicatories in determining such rights."). And it is or will be done, doubtless, by the Colonial Courts. On this head no provision whatever is required; we may safely leave existing laws to work,

If the Colonial Legislatures by-and-bye choose to give any legal powers to the Synods of the Church of England, or any other church, that is their affair, and they ought, in my opinion, to be em- powered to do so, any "statute," &c., notwith- standing; but I should hope they will avoid it if possible.

Now these three principles, viz.:

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1. Empowering Church of England men in the Colonies to meet in synod and make rules;

2. Taking care that these rules should not acquire force of law as against the colonial laws;

3. Taking care that these rules should not con- travene the fundamental law of the Church of England ;-

were all followed, or intended to be so, in the clauses which it was proposed by the Bishops of Oxford and Salisbury to introduce into Lord Grey's Australian Bill of 1850, and in the Bills for regu- lating the Colonial Church which have been since brought in at different times, but have never, passed the Commons.

Those Bills were, in my opinion, unexceptionable

in principle; but, notwithstanding the ability as well as sound views of their framers, they were, I think, rightly rejected, for they were all ill-conceived in their general forn, as well as open to many objections of detail.

The general form was this: To enable, by affirma- tive words, the Church of England (clergy and laity)

to meet in the colonies in Synods, the constitution of which was defined, and there to make rules, &c.

Now by this affirmative form of enacting, the Synods were not merely authorized, but, in fact, invested with a legal shape, which was just the thing. to be avoided. For instance, if a clergyman had been deprived by a Synod convened under one of these Bills, it would have been open for him to contend that his deprivation was not statutable; that the Synod was not properly convened, or pro- perly presided, or its acts properly registered, according to the statute: all which points the Colonial Courts would have had to decide on the terms of the statute.

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Again if a Synod be thus statutably constituted, it would follow, by plain legal implication, that its rules would be valid as laws. They would have the force of an Act of Parliament, against colonial laws. To take a trivial instance: Suppose a Synod, esta- blished under an enabling Act of Parliament, appointed the election of a bishop by certain consti- tuents for a given day, and a colonial law required

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