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schedule of Acts repealed. It will be important to forecast accurately how a court would interpret an Act framed without such repealing clause. Again, how would a court interpret the franchise question raised in Clause 13 providing for the constitution of a representative body? These criticisms are not intended to be full. They are simply intended to illustrate the need for settling what will be the exact legal position of the Church in Wales in the case of disestablishment. The point has been raised by an acute Welsh correspondent of The Times, who writes:
The attempt . . . to reduce a National Church to the level of a voluntary association . . . has resulted. in a half measure which would shatter the oldest organism in Wales . . . without endowing it with the independence which is held to be one of the blessings of disestablishment.
Australian experience here shows the unwisdom of trusting too much to good intentions. The English State, at least for forty years, has made no claim to any ecclesiastical jurisdiction in the British Colonies. The courts have declared that the law of the Church does not follow the law of the flag.' The English Church has told us that we shall render our best contribution to the Church Catholic by growing freely in our own environments. And in Australia until last year it was generally thought that the Church was quite free. In this conviction the Church organised itself as completely, although perhaps not as efficiently, as possible. Serious doubts as to the reality of that freedom, however, were expressed from time to time, and consequently the General Synod, at their 1910 session, sought legal advice in England. It is now common knowledge, although it is not officially announced, that the General Synod Committee have been advised that the Anglican Churches in Australia and Tasmania are all tied up in such a fashion that, although they are free in the eyes of both the English and Australian States, they are legally (in the eyes of the courts) subject to the same laws as are binding on the Church of England. The authorities of the Church are not competent to permit the use of any services not provided by the Book of Common Prayer which an English Bishop cannot lawfully permit in his diocese in England. The Australian courts must regard as binding, in matters respecting the proper use of property, the decision of English courts. And any persons in possession of Australian Church property disregarding such decisions must be regarded as guilty of a breach of trust, and be dealt with accordingly. This surprising state of affairs obviously is a serious weakness to the Australian Church. It is safe to say that it was not contemplated by those who framed the organisations of the Church there. A simple method of putting the position right undoubtedly can be found, but until the matter is put right all Church organisation in Australia is in an exceedingly
unsound condition. It is necessary to understand this state of affairs to obviate any confusion between the organisation of the Australian Church and the basis upon which that organisation rests. It has also a bearing upon the future of the Church in Wales. It will be a cruel wrong to leave the Church in Wales deprived of endowments, suffering from all the inconveniences of establishment with no corresponding advantages.
CONNEXION BETWEEN A DISESTABLISHED CHURCH AND THE STATE
Assuming that the Government honestly intend the Church in Wales to be really free, that is, not fettered by any vexatious restrictions similar, let it be said, to those in France, the exact connexion with the State demands more careful consideration than it has received in the Bill. Here also something may be learned from Australia.
So far as all the States of the Commonwealth are concerned, the Church in Australia is completely and entirely free. Nowhere does the Church occupy a different position from that of any other religious body.
The form of legal connexion with the State varies, however, in the several States. In Queensland the connexion is of the simplest character, and for that reason it is the most satisfactory. The Synod of each diocese in Queensland is incorporated under the provisions of the Religious, Educational and Charitable Institutions Act of 1861.' The method of incorporation and the subsequent relationship with the Government is identical in the cases of all religious bodies. Friendly Societies are incorporated under the same Act, and have a similar connexion with the State. Each body corporate is competent, so far as the Queensland State is concerned, to make its own laws, to exercise its own discipline and to settle its own qualifications of membership. It must do this by the principles of the law of contract. But since no citizen can contract himself, or be contracted by others, out of his civil rights, the decisions of any Church court are open to review by the Civil courts so far as they affect property and other civil rights. Thus the Queensland State, while it gives absolute freedom to the Church to decree Rites or Ceremonies,' and makes no claim whatever to authority in Controversies of Faith,' protects, in such matters, alike the civil rights of the Church and of the individual. Either might otherwise suffer from the effect of some odium theologicum, which may easily arise so long as men are men and associations are associations.
In this connexion there is a striking similarity between Queensland and Roman law. Although there may have been no official relationship between the Christian Churches of the first century and the pathetic collegia funeraticia, yet the inference is
very convincing that the rights obtained by the many charitable associations which sprang up in the early Roman Empire were for a time available to Christians as well. In other words, the Christian Church was probably first recognised by the Roman State as a collection of local 'friendly societies' or local burial clubs.' It is, therefore, interesting to note that a similar relationship exists in the most democratic country in the world. It is scarcely less interesting to find that this relationship is considered to be eminently satisfactory to-day. This point is worthy of note by English statesmen.
THE BASIS OF ORGANISATION IN A DISESTABLISHED CHURCH
Any Government disestablishing a Church which it does not wish to disable or destroy, must be satisfied that freedom will not entail anarchy in Church organisation. To prevent such a state of affairs arising in Queensland, Church people themselves adopted what is generally known as the Consensual Compact.' In other Australian States an endeavour was made to settle the conditions of relationship within the Church by successive Acts of the respective State Parliaments. This method, although in force outside Queensland, is both cumbrous and unsatisfactory. There is no apparent desire on the part of members of Parliament to hamper the progress of Church Bills in the Australian Legislative Assemblies and Councils, yet there undoubtedly exists a danger of improper interference while any Bill is in its Committee stages. And, owing to pressure of other parliamentary business, even Church Bills may share in the slaughter of innocents' at the end of almost every session. In Queensland, where the law of contract is the basis of Church relationship, there has been little or no need for appeals to the State Parliament. All members of Synod, including the Bishop, all churchwardens, readers, schoolmasters, and other office-bearers must sign a declaration of submission to Synod. The Bishop's declaration in the diocese of North Queensland is as follows:
I, A.B., chosen Bishop of the Church and See of North Queensland, do promise that I will maintain and teach the doctrine and discipline of the Church of England as acknowledged and received by the Synod of the Diocese of North Queensland; and I consent to be bound by all Canons and Regulations of the Synod now or hereafter in force; and I hereby undertake immediately to resign the said Bishopric and all the rights and emoluments appertaining thereto if sentence requiring such resignation shall at any time be passed upon me after due examination had by the Tribunal acknowledged by the said Synod for the trial of a Bishop in accordance with the Determinations of the General Synod.
The declaration required from others is in the following form:
I, A.B., declare that I am a bona-fide member of the Church of England, and that I am a communicant of the same, and I submit to the authority
of the Synod of the branch of the Church of England in the Diocese of North Queensland established by a Constitution agreed to on the 13th of June, 1883, and I consent to be bound by all the provisions of the Constitution and by all the Canons and Regulations now or hereafter in force so long as I hold any office, appointment, or emolument in or under the said Synod. And I hereby undertake immediately to resign my office or appointment and all the rights and emoluments appertaining thereto if sentence requiring such resignation should at any time be passed upon me after examination had by the Tribunal appointed by the Synod.
THE GOVERNMENT OF A DISESTABLISHED CHURCH
Where the State gives real freedom to a Church the details of government are properly outside its province. It will be sufficient if the government is carried out in an orderly fashion with due regard to the just rights of the individuals concerned. The form of government in an unestablished Church is instructive, however, and the method by which an efficient system of government is best reached is very important. Here much can be learned from Australian failures.
The Government of the Church in Queensland is effected by Diocesan Synods, and in certain defined matters by a Provincial Synod created by the dioceses in 1905. In still wider matters, such as the election of a Primate, the formation of provinces and the constitution of an appellate tribunal, rules are made by General Synod of all Australia, and these rules or determinations are accepted by Provincial Synod for all the Queensland dioceses. This point should be noted because the greatest cause of weakness to the Australian Church has been the recognition, made during the early days of Church organisation, of the diocese as the unit of Church life. The Church has progressed to the organisation of Provincial Synods and a General Synod, but the determinations of General Synod are still not binding in any diocese until the diocese itself has accepted it. Some dioceses, in point of fact, have never accepted some particular determination. Other dioceses have subsequently repealed their acceptance for purposes of their own. Others, again, have repealed Acts, and have failed to accept amending determinations of General Synod. Consequently the larger organisation of the Church has been reduced to such a tangle as might fill any jurist with despair. The worst is that the Australian Church has not profited by its own experience. The amazing error of making laws which are dependent upon constituent bodies for their efficacy has been repeated in the Provinces of New South Wales and Victoria. In Queensland only a better state of affairs exists. But the point which is of interest in England is that the experience of Australia shows that the true unit of effective Church Government is a central body.
VOL. LXXI-No. 424
Presuming that the Church in Wales is disestablished, this point should be clearly borne in mind by those responsible for the organisation of the Church. With a vivid knowledge of the weaknesses of Australian organisation, I could not help feeling relief, almost delight, that the Welsh Church Bill provided for the recognition of a representative body, although I may add that a remark of Mr. McKenna to the effect that the Government contemplate differentiating between a representative body and a Synod has done much to modify my first feelings. A single administrative body should render it possible from the first for Church development in Wales to be planned from the centre rather than from the extremities. Let the aim be to make the representative body the parliament of the Church, supreme in its own sphere.
But, if the experience of an unestablished Church is of any value, there must be a strong representative basis for that representative body. Free Churches will not tolerate a predominantly ex-officio representation. There is no provision in Queensland Synods for the inclusion of a solitary clerical or lay member who sits by virtue of an office. The Bishops themselves represent the suffrages of the Church as a separate order.
The organisation of the parishes, so far as it affects selfgovernment, is also a matter of primary importance, but the amount of self-government should be determined and delegated by the representative governing body of the Church. I can foresee nothing but weakness for any unestablished or disestablished Church if development is allowed to proceed from the parishes to the representative body.
The formation of Church Courts is provided for in the Bill, and these are probably essential. In Australia the Church has organised diocesan and provincial courts, and a Judicial Committee of General Synod. In Queensland the procedure of the Supreme Court of the State, both in hearings and in appeals, has been adopted alike in the Bishops' court and in the Metropolitan's court. But by a curious development it seems likely that the Civil Courts will almost invariably be used where rights of property are involved, except in comparatively unimportant cases. It is felt not only by the defendants, but by the appellants, that there is a certainty of better justice being done in courts where the judges are better trained in sifting facts and weighing evidence. It goes without saying that in Queensland the Civil courts administer, in Church matters, association, that is Church, law except where civil rights are otherwise affected thereby. This fact is worthy of note, although it may not be approved, and although Church courts may still settle many disputes which it is better should not be taken into Civil courts.