The BISHOP of OXFORDsaid, he had a question to put to the noble Earl the Secretary of State for the Colonies upon a subject which occupied the attention of their Lordships last Session—he meant the legal status of the Church of England in the Colonies of the British empire. The noble Earl undertook, when the matter was then brought before their Lordships, to institute an inquiry with the view of preparing matters for such action as the result of that inquiry might show to be needful. He wished to ask the noble Earl 495 whether, during the course of the recess, he had been able to make any such inquiry? He believed he should find that the noble Earl had been waiting for the result of a certain synod or gathering of the bishops of the English Church throughout the Australian Colonies. If that were so, he thought it was a good and sufficient ground for waiting, in so far as inquiry on the spot in the Colonies was concerned; but it appeared to him that there was a very important separate inquiry which it was very desirable should be made at home; he alluded to the inquiry as to what was the legal status of the Church in the Colonies, and in how far the statutory restrictions which applied to the Church at home applied to the Church there—a question about which their Lordships expressed considerable difference of opinion in the course of last Session—because, whatever might be the result of the meeting of the colonial bishops, the question to which he referred would be no further advanced—unless the Government was prepared to say how far those statutes did or did not apply to the Colonies, and what was really the legal status of the Church of England in the Colonies, respecting which complaints had been made. It would, therefore, be a great solace to himself and to many others to know that, at all events, the attention of the noble Earl had been directed to the question without waiting for returns from Australia.
§ EARL GREYsaid, that the question put by the right rev. Prelate was one which he should have some difficulty in answering, in consequence of want of sufficient information on the subject. The position of the Church of England in the British Colonies was undoubtedly a subject of vast importance. At the same time he had to remark, that from no one of the Colonies had any complaint reached him from the members of that Church with respect to any grievances under which they laboured, which were not capable of being removed by the colonial Legislatures. In the course of the debate which took place last year, he took the liberty of expressing his opinion, that, upon points on which the colonial Legislatures were competent to act, it was highly inexpedient for Parliament to interfere. Now, it had so happened, as he had said, that neither the prelates nor the members of the Church of England in any of the Colonies had brought Under the attention of Her Majesty's Government any grievance of any kind under which they 496 were at present labouring, which was not capable of being removed by such colonial legislation. It was quite true that various questions, rather of a theoretical than of a practical nature, were suggested in the debate of last year, but no practical measure was pointed out as desirable to adopt; That being the state of things, when, in consequence of the promise he had given in the course of the debate referred to, he came to look into the subject during the recess, the difficulty which he found was this—that he did not know to what particular points to address himself; he did not know what extension of power or privilege to the Church of England was really desirable or required. He could find no measure pointed out as necessary or required in the Colonies; neither could he perceive, by a careful reference to the records of the proceedings of both Houses of Parliament any distinct point upon which Parliamentary legislation had been suggested. Under these circumstances, and finding likewise that the position of the Church was very different in different Colonies, in consequence of the different legislation of each colony, it appeared to him that, if anything was to be done, the first step they should take was to institute an inquiry in the different groups of colonies as to what was the real position of the Church there, and what alterations it might be expedient to make. He had prepared during the recess a despatch to the Governor of New South Wales—which was the colony where grievances were principally complained of—instructing him to appoint a commission, including the prelates of the Church of England in the Colonies as members of that commission, for the purpose of inquiry; but while the mode of conveying those instructions was under his consideration, intelligence was received in this country—not in an official shape certainly, but still in a shape which left no doubt of the accuracy of the information—that the subject of the condition of the Church of England in the Colonies was already under the consideration of the prelates of the Church on the spot—that a meeting of the Australian prelates was to take place at Sydney for the purpose of considering that very point, tinder those circumstances, he certainly thought that as the meeting of the bishops at Sydney could not fail to throw much light on the subject, it would be inexpedient to send out any instructions for a further inquiry until he knew what was the result of the inquiry that was going on. 497 Such was the present condition of the question. Certainly it did not appear to him that any advantage at the present moment could arise in this country from an inquiry into what seemed to him a speculative question of law, which was in no manner a practical question, as to the operation of certain statutes in the Colonies. As far as he could form an opinion, it appeared to him that in the Colonies those statutes were in no respect operative, and he thought that the meeting which had been adverted to proved that they were not considered as operative there. As in the course of a short time the result of that meeting would be known in this country, it appeared to him, and he was happy to say that the most rev. Prelate (the Archbishop of Canterbury) concurred with him in thinking, that he ought to postpone taking any further step at present.
§ LORD MONTEAGLEsaid, that great anxiety was felt on the subject of the validity of marriages effected in the Colonies before any person except a clergyman of episcopal ordination. There was great doubt whether Scotch marriages, for instance, performed in presence of a minister of the Church of Scotland, was valid in the Colonies. He wished to know from the noble Earl whether any inquiry was in progress with respect to marriages generally in the Colonies, and if so, whether the result would be laid before Parliament?
§ EARL GREYsaid, that having received no notice of the noble Lord's intention to ask this question, he was afraid he could not give him a very clear answer. He rather believed that some inquiry was in progress with respect to the effect in this country of marriages celebrated in the Colonies—not as a colonial question, but as affecting the position of persons in this country. As a question purely affecting the Colonies, he took it that it was a subject which the colonial Legislatures had ample power to deal with. If they had not, he was persuaded that the Legislature of New South Wales would have brought the subject under the notice of Her Majesty's Government by an address to the Crown; but no such address had been received, nor had a complaint of any sort been received from the colony of New South Wales with respect to any imperial law being required.
LORD CAMPBELLhad no doubt the colonial Legislatures had power to deal with the subject, and that a good marriage in a colony was valid all over the 498 world. Still he thought it would be better if there were an imperial law providing a uniform mode of celebrating marriage all over the British empire, and that it should not be left to the different colonies to legislate for themselves on the subject.
§ EARL GREYentirely differed from the noble Lord on this subject. Considering that the marriage law was different in England, Ireland, and Scotland—[Lord CAMPBELL: Not in England and Ireland.] Yes, the common law was the same in England and Ireland, but the statute law was different, there being nothing analogous to marriages before the Registrar in Ireland. Considering, then, the differences of the marriage law among ourselves, and considering especially the varied circumstances of our numerous colonies, to sweep away the mass of legislation in forty different colonies, and to establish a uniform system, to be carried out by the agency of officers who did not exist in many of the colonies, was a mode of proceeding which he would certainly not recommend their Lordships to adopt. He believed that the law of marriage depended for its efficiency upon the fact of its being adapted to the state of society in the particular country where it existed. It appeared to him that of all the subjects in the world which might most properly and fitly be left for the internal legislation of the several colonies, this was the one, and he hoped that no imperial legislation upon it would be attempted.
The BISHOP of OXFORDwas sorry to say that the answer which the noble Earl had returned to his question had not at all removed his difficulties, and that he considered it very unsatisfactory. It seemed to him to throw the question back to the point where it stood before the discussion of last Session. At the beginning of last Session the noble Lord made the same statement he had made that night—that no special grievance had been brought under the notice of Government. That led him (the Bishop of Oxford) to point out to the noble Lord that, so far from that being the case, the Bishop of Van Diemen's Land had sent his archdeacon all the way to this country to press the grievances of the colonial Church upon the attention of Government. He (the Bishop of Oxford) also pointed out that to apply to a Church situated as that in the Colonies was, with none of the advantages of an Establishment, all those restrictions which bound the free agency of the Church at home, was felt to 499 be a great evil in the Colonies, and that one of the evils was, that it forced the bishops, in Spite of themselves, to act in cases of discipline as absolute autocrats without the for his of law, because by acting, otherwise they would run the risk of being tried for libel. It was admitted by the Government on that occasion that he had established a case of grievance, and he was told that if he left the matter in their hands an inquiry would be made. When the noble Earl talked of the grievances being purely speculative, he would remind him that in the debate on the Australian Colonies, he (the Bishop of Oxford) proposed the introduction of a particular clause to give the members of the Church of England the power of acting freely of themselves, and that he had only withdrawn it because he Considered it difficult to say how far the statutes did or did not apply in that case, and because he was too glad to have the Government in a friendly spirit to take up the matter as a subject for inquiry, or, if necessary, of future legislation. But when the noble Earl now said that the matter was a purely speculative ones that if there was any practical grievance the colonial Legislatures could provide a remedy for themselves; and that he considered the fact of the bishops meeting in synod as proving that the statutes did not operate in the Colonies, the matter was thrown back as far as ever. But the meeting of the bishops was not a Synodical meeting, legally speaking. It was not a meeting far adapting the rules of the Church to the necessities of their infant state. It was merely a meeting for taking friendly counsel as individuals with each other. And while it was right to wait until the result of that meeting was known, he had hoped that the noble Earl would have brought before the law officers of the Crown the question how far the imperial statutes which applied to the Church at home were applicable to the Colonies—in Which case the colonial Legislatures were not free to deal with it—or whether they were free from those statutes, and had power to adapt the machinery of the Church to their new position.
§ EARL GREYsaid, that the right rev. Prelate had misunderstood him. He had never said that there were no grievances complained of by members of the Church in the Colonies; or that they were grievances merely speculative. What he said Was, that no grievance had been brought under his notice from the Colonies which was not 500 capable of being removed by colonial legislation. It was quite true that the Bishop of Tasmania had mentioned a series of embarrassments and difficulties to which he was exposed in consequence of the state of the law preventing him from conducting certain inquiries into the conduct of his clergy; but he had not even suggested that those difficulties were such as that the colonial Legislature could not remove them. What he stated Was, that the colonial Legislature was indisposed to give the Church the necessary powers. If that was the real feeling of the population of the country—if they, from an ill-conceived jealousy, it might be, of the Church of England, believed that the difficulties complained of could not be removed without giving undue preference to the members of the Church of England over other Churches—if this feeling was so strong, even before a representative Legislature was established, and with a Legislature Consisting principally of persons named by the Crown, or, in great measure, of persons holding office under the Crown—if even such a Legislature was indisposed to pass the necessary laws when the matter was purely a domestic concern: his argument was, that it Was inexpedient for Parliament to interfere with it. He thought it very possible that when the matter came to be looked into, the colonial Legislature would find that there was much that could be done with advantage to assist not only the Church of England but other Churches, to give themselves more regular and complete organisation. To effect that most useful object, every support and assistance in his power should be rendered as long as he held his present office. What he had said with reference to "speculative and theoretical questions" was this—that there certain ancient Acts of Parliament which were supposed to interfere with the action of the Church in the Colonies, and that it had never been brought under his notice or that of his predecessors that these statutes had interfered to prevent any measures which the members of the Church would otherwise have adopted. It was impossible that the Prelates of the Austrian Colonies should have met together and seriously considered the affairs of the Church in those Colonies, without addressing the Crown, or calling on Her Majesty's Government, in some form or other, to make whatever improvements they might find to be necessary. But, even if this should not be so, it appeared to him that to bring 501 imperial legislation to bear on the condition of the Church in the Colonies, until they knew the result of the inquiry which was at present being conducted on the spot, would be altogether premature. An inquiry conducted upon the spot was the best and most useful that could take place at this moment. And he found by the correspondence he had had with most rev. Prelate, that that most rev. Prelate concurred with him in thinking that, in the present position of the question, it would be better to wait for intelligence from the colony with repect to the inquiry now going on before taking any further steps.