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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; and he is not a public functionary within a colony unless the Church be established by Law within the colony. 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.
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. The principle is stated by Mr. Westlake (Private International Law, p. 137)—
"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. Nor again into a colony founded as here supposed can those laws be tacitly carried which, like those of bankruptcy, though essentially private, belong to the justitia attributrix and not to that expletrix, that is, dispose of interests, and not simply do right between party and party on the ground of property or obligation. Nor those which affect private rights from no motive of private justice, but from a reference to supposed public benefit, as in the case of the statute of charitable uses. 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."
December, 1866.
