§ MR. E. B. DENISONasked whether Her Majesty's Government had fully reconsidered the clause in the Bill framing the federal assembly, which had been withdrawn for reconsideration? If so, he should be glad to hear what were the views of the Government.
§ MR. LABOUCHEREsaid, that the clause had been carefully reconsidered, and that the Government were prepared, while adhering to the principle upon which it had originally been framed, so to alter it as to give the smaller colonies sufficient weight in the federal assembly should they think proper to join it.
§ Order for consideration of Bill, as amended, read.
§ SIR W. MOLESWORTH* Sir, I move that this Bill be recommitted, for the purpose of omitting all clauses, which empower the Colonial Office to disallow colonial acts, to cause colonial bills to be reserved, and to instruct colonial governors as to their conduct in the local affairs of these colonies; and for the purpose also of adding clauses enumerating and defining imperial and colonial powers.
Sir, the House may remember, that in Committee I waived my right to oppose the 5th and 11th Clauses of this Bill, which would continue to the Colonial Office its present powers of interfering in the local affairs of the Australian colonies. I did so for the convenience of the Commit, tee, and on an agreement with the noble Lord, the Prime Minister, that on the bringing up of the report I should be entitled to raise the important question involved in those clauses, and to take the sense of the House on that question alone. I therefore now propose to recommit this Bill. I do so, as I have already stated, first, for the purpose of omitting from it all clauses by which the Colonial Office would be empowered to interfere with the management of the local affairs of these colonies; secondly, for the purpose of add- 1165 ing certain clauses which I have submitted to the consideration of the House, and which would give to these colonies the uncontrolled management of their local affairs. The question therefore, for the House now to decide is, between Colonial Office government and self-government in the local affairs of these colonies.
I must begin by observing that this Bill raises two distinct questions. First, the special question, what ought to be the form of the government of the Australian colonies? That question was fully debated and decided in Committee, and I do not presume to ask the House to reverse the decision of the Committee. The other, and in my opinion the far more important question, has not been discussed. It is the great question of colonial polity, namely, what amount of self-government ought our colonies to possess, and to what extent ought they to be subject to the controlling power of the Colonial Office? Upon the answer which Parliament shall finally give to this question, will depend the future constitution of the colonial empire of Great Britain. And I believe, according as that constitution shall be well or ill-framed, our colonial empire will last long, or speedily perish. The noble Lord the Prime Minister, in his great speech on the introduction of this Bill, distinctly admitted that the Australian colonies ought to possess the greatest amount of self-government that is not inconsistent with the integrity and well-being of the whole empire. It must be acknowledged that this Bill would not fulfil the intentions of the noble Lord in that respect, but would merely continue to the Colonial Office its present powers of interfering in the local affairs of the colonies. For if it passed unamended, there is not one single act which a colonial governor or a colonial parliament can do without the express or implied consent of the Colonial Office, nor one act which may not be reversed by the Colonial Office. I ask the House to consider carefully what are to be the powers of the Colonial Office under this Bill.
First, by this Bill, the Colonial Office would possess the power of instructing every colonial governor as to his conduct in all colonial matters. The governor would be bound to obey his instructions, whether he liked them or not. For instance, he would have to assent to a bill of which he disapproved; he would have to dissent from a bill of which he approved, if so commanded from the Antipodes. He 1166 would be, therefore, a mere puppet, moved to and fro by wires attached to Downing-street. By pulling those wires the Colonial Office would at once be able to put a stop to any colonial legislation; for instance, if this Bill were to pass, the Colonial Office could make a colonial governor set aside every one of its much-vaunted provisions, and could prevent a colonial legislature from amending its constitution, from altering the salaries of its chief functionaries, from discharging useless functionaries, from reducing expenditure, and from appropriating money to the payment of any services which the Colonial Office might dislike to have performed.
Secondly, this Bill, in addition to empowering the Colonial Office to instruct a colonial governor how he is to act in all colonial matters, would require, in many cases, that a colonial governor should abstain altogether from acting until he have sent to the other side of the globe, and ascertained the pleasure of the Colonial Office. For by this Bill a colonial governor would be absolutely required to reserve certain colonial bills; he would be able to reserve any colonial bill; and he would be bound to reserve any colonial bill which the Colonial Office might instruct him to reserve. These reserved bills would have to be sent to Downing-street; there they would wait the signification of the pleasure of the Colonial Office; and if that pleasure should not be signified within the course of two years, then the colonial bill would be lost altogether. Thus, a bill of great importance to a colony, affecting, perhaps, very injuriously some interests, and very beneficially other interests—say, for instance, a bill of the same importance to a colony as the Corn Law or Ten Hour Bill was to this country—such a bill, if it were reserved, would remain for one year at least, and might remain for three years, suspended over a colony, keeping a colony in state of doubt and anxiety, and engendering the worst feeling towards the Colonial Office and the mother country.
Thirdly, this Bill, in addition to giving to the Colonial Office absolute control over all the acts of the colonial governor, would empower the Colonial Office ultimately to annul every act of a colonial governor or of a colonial parliament: for by this Bill the Colonial Office would have power to disallow any colonial act within two years after its arrival in Downing-street. Thus, after a colonial act has been in full operation for three years, to the universal satis- 1167 faction of the colonists, it might be suddenly annulled by the arrival of a despatch from the Secretary of State for the Colonies. Thus, strictly speaking, by this Bill the Colonial Office would continue to have the power, in the first instance, of preventing anything from being done in a colony by a colonial governor or a colonial parliament; and it would have the power, in the second instance, of making null and void everything which shall be done by a colonial government or a colonial parliament.
Sir, you will acknowledge, that these are vast powers of government. To whom are they to be entrusted? To gentlemen, able and laborious, without doubt, but who have never had ocular experience of the condition of a colony, who have no personal interest in the well-being of the colonists, who are always obliged to trust to second-hand and partial information on all colonial matters, who are, therefore, necessarily ignorant and generally misinformed with regard to colonial affairs, and who, consequently, with the best intentions, cannot fail to commit numerous and grave errors in the management of the local affairs of the colonies—errors similar to those which every one admits that they have committed within the last three or four years in New Zealand, New South Wales, Ceylon, South Africa, &c.
Sir, I might take colony after colony, and with regard to each colony, I might mention numerous cases illustrative of the evil consequences of the ignorance of the Colonial Office, combined with the exercise of its powers of instructing colonial governors, and otherwise interfering with the management of the local affairs of a colony. For instance, with regard to the Cape of Good Hope, I might mention that one Secretary of State for the Colonies imagined that the Kafirs—who are the fiercest of savages, and the most warlike and faithless of barbarians—were a peaceful, pastoral people, embued with Arcadian virtues and simplicity; the instructions which he, in his ignorance, gave to the colonial governor, and which the colonial governor was compelled, against his own better judgment, to obey, led to the series of Kafirs wars, which, at a low estimate, must have cost us nearly 5,000,000l. in the last ten or twelve years. With regard to the same colony, I might mention that another Secretary of State for the Colonies, being utterly ignorant of the physical state of South Africa, fancied that the size of farms in that part of the world 1168 should not much exceed the size of farms in England; the directions which he, in his ignorance, gave to the colonial governor, and which the colonial governor was compelled to obey, against his own better judgment, made the Dutch boors abandon Natal, and migrate to the centre of South Africa, where we had to follow them with our troops, and to reduce them to subjection. To illustrate the rashness and indiscretion with which the Colonial Office often acts, I might mention its conduct last year, in consulting the colony of the Cape of Good Hope with regard to the transportation of convicts, and simultaneously transporting them. To illustrate the obstructive character of Colonial Office government, I might mention that the Legislative Council of New South Wales has long wished to have an agent in this country, who should be regularly paid by the colonial treasury; the Colonial Office, naturally unwilling to be looked after, has offered every obstruction in its power to the appointment of that agent, by refusing to permit the Legislative Council to pass a money hill for his payment. To illustrate the minute interference of the Colonial Office in the local affairs of the colonies, I might mention—as I did on a former occasion—that the inhabitants of the town of Sidney, containing a population of about 50,000 souls, have for some time complained of the practice of slaughtering beasts within that city, as an abominable nuisance in that semi-tropical climate, and injurious to their health; that the Legislative Council two years ago recommended that the slaughter-houses should be removed, and that a plot of ground should be sold for the purpose of paying for their removal and for the building of abattoirs; and that this recommendation has not been attended to, because it was necessary to send to this country to obtain the sanction of the Colonial Office before anything could be done. To illustrate the ignorance of the Colonial Office with regard to the condition of a colony, I might mention the constitution of New Zealand, framed one year and suspended the next. To illustrate the ignorance of the Colonial Office with regard to the feelings of the inhabitants of a colony, I might mention the proposal of the Colonial Office to deprive the electors of New South Wales of their franchises, and to give them the still-horn constitution of New Zealand. To show to what extent the Colonial Office is liable to be misinformed with regard to the affairs 1169 of a colony, I might mention that the Colonial Office ought to receive every year, from each colony, a statistical report of its condition; that several years running the Colonial Office received reports from Ceylon, according to which the number of births, deaths, and marriages in that colony was every year precisely the same; that this remarkable statistical fact entirely escaped the observation of the Colonial Office; that it is to be explained by the circumstance that the same report, with an alteration only of the date, was sent, year after year, from Ceylon; that from these reports, and similar sources of information, the Colonial Office was led into the most singular errors with regard to the financial condition of Ceylon; for instance, that it mistook a deficit for a surplus of income over expenditure, and fancied that the treasury of Ceylon was full when it was empty, that liabilities were assets, and that cancelled notes were bullion. It would be easy to multiply instances of this description. In fact, a collection of anecdotes of Colonial Office government would make a very curious and laughable chapter in the history of this empire; and that chapter might be very properly headed with Oxenstern's famous saying—"Nesci, o mi fili, quantillâ prudentiâ homines regantur"—and certainly no men were ever governed with less prudence than the colonists of Great Britain have been governed, ever since bureaucratic colonial government has been established in Downing-street.
Sir, it will be said that similar errors will not be committed, and that in future these powers may be safely confided to the Colonial Office; and the hon. Gentleman the Under Secretary of State for the Colonies will, without doubt, repeat for the hundredth time, that he has been positively instructed by the noble Earl the Secretary of State for the Colonies, to assure the House, most solemnly and most distinctly, that the noble Earl will in future exercise those powers in the wisest, most judicious, and most liberal manner, and, in fact, will only exercise them for the undoubted benefit of the colonies, and for the purpose of guarding against the errors which, he will tell us, the colonial parliaments would be sure to make in the management of the local affairs and private interests of their colonies, were it not for the great wisdom and superintending intelligence of the noble Earl. I will not presume to dispute any 1170 statement of facts made by the hon. Gentleman; but I must observe that that statement, which I have heard repeated so often, contains the argument which the courtiers of every despot have from time immemorial used in defence of the powers of their master; and to that argument I will reply in the words in which the Emperor Alexander replied to Madame de Stael, that a good despot was a "lucky accident." We cannot expect lucky accidents to be of frequent occurrence; and, therefore, to legislate under that expectation would be the height of absurdity.
Sir, I must therefore most reluctantly omit entirely from my consideration the individual merits of the present functionaries of the Colonial Office; and stern logic compels me to remind the House of the fundamental axiom of constitutional government, that no man ought to be entrusted with irresponsible power. Now, the functionaries of the Colonial Office are irresponsible for their management of the local affairs of the colonies; for they are responsible (and in theory only) to those who are themselves irresponsible, and who know little and care little about the colonies; for the Colonial Office is said to be responsible to us; that responsibility every one knows to be a farce, for the majority of us take little or no interest in colonial matters. But suppose it a reality; to whom are we responsible for the management of the local affairs of the colony? To our constituents! Why, that responsibility is a still greater farce; for they know less, and care less, about the colonies than we do. But suppose it a reality; to whom are our constituents responsible for the management of the local affairs of the colonies? To no one! Therefore in ultimate analysis the Colonial Office is irresponsible. For in the language of our constitution the only meaning of the word responsibility is the responsibility of the rulers to the ruled. We distinguish between despotism and free government by this test alone. So do our colonists. And therefore, according to strict constitutional logic, they term the power of the Colonial Office a despotic power; because for the manner in which it is exercised, neither the Colonial Office, nor the British Parliament, nor the people of Great Britain, that is, none of those who rule, are responsible to the colonists, who are ruled over.
Irresponsible power is as distasteful to colonists in a colony, as it would be to Englishmen in England; for our colonists 1171 pride themselves upon being Englishmen; and they appeal to the old constitutional maxim, that an Englishman, go where he will, carries along with him, as his birthright, as much of law and liberty as the nature of things will bear. They maintain that their fathers, by emigrating, forfeited none of their English liberties, and that their descendants in the colonies are entitled to political rights corresponding with those enjoyed by Englishmen in England, with the necessary exception of those rights which are irreconcilable with their condition and duties as colonists of the British empire. They assert also, that the foundation of English liberty is the right in a people to a Parliament in which they shall be represented; and as, from the nature of things, they cannot be adequately represented in the British Parliament, they lay claim to a colonial parliament as similar in its form and powers to the British Parliament as the status of a colony will admit of. They claim, therefore, for their local parliament a control over their local affairs as complete as the British Parliament possesses over the local affairs of the British islands. And consequently they feel, with regard to the powers of the Colonial Office, as we should feel if our Bills were to be reserved for the sanction of a functionary at the other side of the globe, if our Acts of Parliament were liable to be disallowed at the pleasure of a Secretary of State in Australia, and if our Prime Minister were bound to obey the instructions of the unknown and irresponsible officers of a department at the Antipodes. Like all true Englishmen, they loathe distant and irresponsible government; when weak, they murmur and obey it; as they wax stronger, their murmurs become menaces; their menaces, if unattended to, are followed by rebellion; and rebellion leads to independence. In proof of all this, I ask the House to reflect on the history of our plantations in America. Remember also, how a few years ago, Canada rebelled and obtained responsible government; and how, the year before last, the threats of New South Wales compelled the Colonial Office to abandon its projects! See how the menaces of the Cape of Good Hope forced the Colonial Office to submit, and to bestow upon that colony representative government! Listen to the murmurs of New Zealand, as yet too weak to threaten! Thus, in the eyes of the colonies, our Colonial Office Government is a despotism, tempered by menaces and rebellions—tyrannising over 1172 the weak, cringing to the powerful, universally hated, and generally despised. A government, hated and despised by its subjects, is doomed to destruction; and our colonial empire will perish if our colonial system continue unreformed.
Sir, our colonial system must be reformed. How can it be reformed? I answer, by refusing to continue to the Colonial Office the powers to which I have just referred, and by giving to the colonies the greatest amount of self-government that is not inconsistent with the integrity and well-being of the British empire. If this be done in the manner which I propose, the colonies will cease to be subjects of the Colonial Office, and will become integral portions of the British empire; and the present and all future colonies will be so many repetitions of Great Britain, united into one great British empire by common allegiance to one monarch, and to one Imperial Parliament. How can this be done? Before I attempt to answer this question, I must remind the House that I moved last year that an humble address should be presented to Her Majesty, praying that Her Majesty would be graciously pleased to appoint a Commission to inquire into the Administration of Her Majesty's colonial possessions, with a view to a reform of the colonial system of the British empire. I regret much that the House refused its assent to that Motion, and that I am now obliged, unaided by that Commission, to attempt to answer the question to which I have referred.
Sir, in the British empire the powers of Government may be divided into the two classes of Imperial and colonial powers. By colonial powers, I mean those powers which are required for the government of a colony in all matters affecting its local or internal interests. By Imperial powers, I mean those powers which are required for the government of the British empire as one body in all matters affecting its general and external interests. Now, I maintain, as I have already said, that the inhabitants of our true colonies (I mean especially those acquired by occupancy) are entitled to political rights corresponding with those enjoyed by Englishmen in England, with the necessary exception of the rights which can be proved to be irreconcilable with their status as colonists, that is to say, irreconcilable either with the local circumstances of their colonies, or with their duties as subjects of the British empire. Therefore, I maintain that, whenever the 1173 local circumstances of a colony will admit of the existence of a colonial parliament, the colonial parliament ought to possess powers corresponding with those of the British Parliament, with the necessary exception of Imperial powers. For if it were to possess Imperial powers, it would become an Imperial Parliament, and as there cannot be two Imperial Parliaments in one empire, the British empire would be dissolved. It is evident, therefore, that in order to give to a colonial parliament all the powers to which it is entitled, or in other words to give a colony the greatest amount of self-government that is not inconsistent with the unity and well-being of the British empire, it is evident, I repeat, that the line of demarcation between Imperial and local powers should be fixed by an Imperial statute; that all Imperial powers should be vested in Imperial authorities; that all colonial powers should be vested in colonial authorities; and that the colonial legislatures should be restricted from making any colonial law affecting the extent and distribution of the powers of Government as fixed by Imperial statute.
The first question is how to draw the line of demarcation between Imperial and colonial powers. It might be done in two different manners; either by enumerating colonial powers, and then all other powers would be Imperial powers; or by enumerating Imperial powers, and then all other powers would be colonial powers. I propose to adopt the latter mode, for it is evident that Imperial powers concern fewer topics, are, therefore, fewer in number, and consequently can be more easily enumerated than local powers. I propose, therefore, in the clauses which I have submitted to the House, to enumerate Imperial powers, and all other restrictions which ought to be put upon the powers of the colonial legislatures; and then, with the exceptions so enumerated, to give to the colonial parliaments, within their respective colonies, all the powers possessed by the British Parliament in the British islands.
Sir, I will now attempt to show that the objects which I have in view would be attained by the clauses, or rather constitution, which I have proposed. For this purpose I first ask what are the chief powers of Government? I will answer by quoting Blackstone, to the effect that the Queen is the supreme head of the British empire, and in right of Her regal dignity She possesses absolutely certain special 1174 powers called prerogatives. Among the prerogatives of the Crown, or connected with them, are all the chief powers of Government. Therefore, if I were to enumerate and consider the prerogatives of the Crown, in so doing I should have to consider all the chief powers of Government, both Imperial and colonial. Before I do so, I must observe that the Imperial Parliament cannot touch the prerogatives of the Crown without the previous consent of the Crown; therefore, it follows from the principles which I have laid down, that a colonial parliament ought to be restricted from making any law affecting the prerogatives of the Crown after they have been once determined for the colony by an Imperial statute. I will now proceed to enumerate and define the prerogatives of the Crown. According to Blackstone, there can be no difficulty in so doing. For Blackstone says the second great political right of every Englishman, and therefore I contend of every colonist, is "the limitation of the Queen's prerogative by bounds so certain and notorious that it is impossible that She should either mistake or legally exceed them without the consent of the people on the one hand; or without, on the other, a violation of the original contract which, in all States impliedly, and in ours most expressly, subsists between the Prince and the subject." Blackstone then states his intention to consider the "prerogative minutely," to mark out "its particular extent and restrictions," and laughs to scorn those who pretend that the prerogative is too sacred and mysterious a thing to bear the inspection of a rational and sober inquiry. According to him the prerogatives of the Crown respect either the nation's intercourse with foreign nations, or its own domestic affairs.
Thus, with regard to foreign nations, the Queen has the prerogative of sending and receiving ambassadors, making treaties, proclaiming war, issuing reprisals, and granting safe conducts. These prerogatives are evidently Imperial powers; I therefore propose to reserve them to the Crown, and to restrict the colonial parliaments from touching them.
Next, in domestic affairs. First, the Queen is a constituent part of the supreme Legislative Council; therefore the Queen has a negative on all new laws, both Imperial and colonial. It is evident that the Queen can only exercise the veto by means of the officers of the Crown. With regard to colonial laws, at present the Queen ex- 1175 ercises the veto by the agency of the Colonial Office, and the Colonial Office exercises it in some cases by the agency of the colonial governor. I propose, because the veto on a colonial law is evidently a colonial power, and for other reasons which I have already stated, that the Colonial Office shall cease to exercise the veto; that the Crown shall vest it in the colonial governor; and that the colonial parliament shall be restricted from making any law affecting its exercise by the colonial governor. It has been stated that I propose to deprive the Crown of the prerogative of the veto. Great stress has been laid upon this statement. It is, however, manifestly incorrect, as the law officers of the Crown will at once admit. For I only propose that certain clauses of the 5th and 6th Vict., cap. 76, shall not be continued. Now the law officers of the Crown will admit that these clauses did not create the prerogative of the veto on colonial laws; and, therefore, they will acknowledge that by omitting or repealing those clauses, the Crown will not be deprived of that prerogative, and that the prerogative of the Crown after the repeal of those clauses will be precisely the same as it was before their enactment. Those clauses merely made it lawful for the Queen, by Order in Council, that is to say, by order of the Colonial Office, to negative colonial laws. I propose to omit those clauses, and that in their stead Parliament shall make it lawful for the Queen, by order of the colonial governor, to negative colonial laws. Therefore, I merely propose to transfer the exercise of the veto from the Colonial Office to the colonial governor; that is, I propose virtually to transport the Colonial Office, with all its powers, to the colonies. For instance, my object would virtually be accomplished if the noble Earl the Secretary of State for the Colonies were transported to New South Wales and made governor of that colony; or if the hon. Gentleman the Under Secretary of State for the Colonies were made lieutenant-governor of Western Australia, and both of them were, as far as their respective colonies were concerned, to retain all the power of the Colonial Office. Without doubt we should deeply grieve to lose the valuable services of the noble Earl and the hon. Gentleman in Downing-street; but I am satisfied that they would render far greater services to the colonial empire in the colonies to which I have referred. For every one will admit that they are 1176 Gentlemen of good abilities and much industry, therefore residing in the colonies, with personal experience of the condition of the colonists, with the means of immediately obtaining accurate and impartial information on all colonial matters, it is not impossible that in a year or so they would possess considerable knowledge of colonial affairs, and become useful servants to the colonial empire of Great Britain.
The second prerogative of the Crown in domestic affairs, to which Blackstone refers, is that in virtue of which the Queen is the first in military command in the empire, and may raise fleets and armies and build forts. These are evidently Imperial powers, to be reserved to the Crown, and not to be touched by the colonial parliaments.
3. The Queen is the fountain of justice; therefore the Queen has the right of determining causes by means of her judges, of establishing courts of judicature, and of granting reprieves and pardons. I propose, in conformity with the principles which I have laid down, to reserve to the Queen in Council, 1st, the power of determining all Imperial causes, that is, all causes touching Imperial powers; and, 2ndly, the power of determining all causes whatever on appeal, and of establishing Imperial courts in the colonies with the same jurisdiction as that of the Queen in Council. 3rdly, I propose that the power of granting reprieves and pardons should, as at present, be vested in the governor, and that the colonial parliaments should be restricted from passing any law affecting these powers. I propose also that the colonial governors shall appoint the colonial judges; this power to be subject to any alteration to be made by the colonial parliament, with the restriction, however, that they shall not make any judge's tenure of office different from a judge's tenure of office in this country, that is, dependent on anything but good behaviour, nor diminish his salary during his continuance in office.
4. The Queen is the fountain of honour and office. I propose to reserve to the Queen the power of granting titles of honour and nobility, and of appointing all Imperial officers, and that the colonial parliament shall not touch these powers. I propose that the colonial governors shall appoint all colonial officers; this power to be subject to any alteration to be made by the colonial parliaments, as the colonists will have to pay their own officers.
5. The Queen is the arbiter of com- 1177 merce, and therefore coins money. The power of coining would be reserved to the Crown by my constitution.
6. The Queen is the head of the National Church. I propose that there shall be no National Church in the colonies, and consequently do not propose to reserve this prerogative.
Lastly, I have to mention the fiscal prerogatives of the Crown. I need only mention the power of the Crown to dispose of waste lands, minerals, fines, forfeitures, royalties, and the revenues from the Post Office. I propose to reserve to the Crown the power of regulating the transmission of letters by sea, as that is evidently an Imperial power. I propose to vest in the colonial governor all the other fiscal prerogatives of the Crown, to be exercised according to acts of the colonial parliament, for these are undoubtedly colonial powers of great importance to the colonists.
Sir, I have now, following Blackstone, completed the enumeration of the prerogatives of the Crown, and shown that, with certain exceptions, the colonial parliaments should be restricted from touching the prerogatives. The reserved prerogatives I have divided into two classes. One class containing those prerogatives which are required for the management of the common concerns of the whole empire, such, for instance, as making treaties, commanding armies, &c, are Imperial powers: I have, therefore, reserved these powers absolutely to the Crown. But, as some or all of these prerogatives may at times be required to be exercised in the colonies, I propose that the Queen may vest any of them in the governor of the colony. Therefore, as far as these prerogatives are concerned, the governor would be an Imperial officer, and bound to obey instructions from the Imperial Government, and therefore, in my opinion, he ought to be paid from the Imperial Treasury. The other class of prerogatives, containing those which are required for the management of colonial affairs, are colonial powers, such as the veto, the granting reprieves and pardons, &c. These powers I propose to vest in the governor; therefore, as far as these powers are concerned, the governor would be a local officer, and consequently should not be bound to obey instructions from the Imperial Government. It may be said that the union of Imperial and colonial powers in the same individual is bad in theory. I acknowledge it is so. In theory it would be better to separate them, 1178 to vest all Imperial powers in an Imperial officer, paid and appointed by the empire, and to vest all colonial powers in a colonial governor, paid and selected by the colony. I do not, however, propose to raise the question of an elective governor; for, as I have already said, I consider that the question of the form of government of these colonies has been settled in Committee. I will only observe, that it is a fundamental doctrine of the constitution that the Crown, in the exercise of its prerogatives, should always act by Ministers responsible to the representatives of the people. In the colonies the Crown exercises its prerogatives by means of the governor, therefore the governor should be responsible for the exercise of Imperial powers to the Imperial Parliament, and of colonial powers to the colonial parliament. Now, as there can be no doubt that a colonial governor, or any other officer of the Crown, would be removed on an Address praying for his removal being presented from either House of the Imperial Parliament, I think that a colonial parliament ought to possess some power of causing the removal of a colonial governor by an address to the Crown. In order that such power should not be exercised rashly, I propose that, to insure removal, the address must be agreed to by two-thirds of the whole number of members of the colonial parliament.
Sir, in enumerating and determining the prerogatives of the Crown in the colonies, and in restricting the Colonial Parliaments from passing any law affecting these prerogatives, I have stated what are the chief restrictions which I propose to put on the power of the colonial parliaments. The other restrictions which I propose are supplemental to those which I have enumerated. They are required for the same purposes of maintaining the supremacy of the Crown and the unity of the empire both at home and abroad, and are intended to prevent the colonial parliament; 1st, from passing any law affecting the dignity of the Crown, or the allegiance of the subject; 2nd, from interfering with the foreign relations of the empire, and the laws which regulate those relations both in peace and war; 3rd; from interfering with the command of the general forces of the empire; 4th, from conferring any exclusive privilege on any portion of the subjects of the empire; 5th, from violating certain fundamental principles of British policy, which I hold to be sacred; for instance, that there shall be no slavery in the British 1179 dominions. I have now stated, in general terms, the legal restrictions which I propose to put on the powers of the colonial parliament. They will be found in detail in the clauses which I have submitted to the consideration of the House. I propose, therefore, that, with the exceptions which I have mentioned, the colonial parliaments shall have the same power of making laws within their respective colonies as the Parliament of Great Britain has within the realm of Great Britain.
Sir, it is evident that it might so happen that a colonial parliament should exceed its powers, and make an enactment in contravention of the restrictions which had been imposed upon it. I propose to declare that such an enactment shall be invalid; and to create a supreme court, which shall determine questions relative to the validity of a colonial enactment. I propose (as, in fact, I have already done) that Her Majesty in Council shall be the supreme court, and shall have both original and appellate jurisdiction in all cases arising under a colonial constitution (as, for instance, when the validity of a colonial enactment shall be called in question), with power to assign any part of such jurisdiction, or to remit any case to the courts of the colony.
I propose to copy, with regard to invalid enactments, the judicial system, and the rules of judicial procedure, of the United States in similar matters. Now, every one who knows anything about the system of constitutional law which pervades the United States of America, knows that a judicial system, by which constitutional law is enforced, is in full operation both in the Federal Union and in every separate State of the Union. For every State in the Union has a State constitution, which is, to a certain extent, the supreme law of the State, and which the State legislature is bound to obey; and to enforce a State constitution there is in every State a supreme State court, which can make void any enactment of the State legislature that is in contravention of the State constitution. Besides these State constitutions and State supreme courts, there is what I may term the Imperial constitution of the United States and the Supreme Court of the United States, which can make void any part of a State constitution, or any enactment of a State legislature, or any enactment of Congress which is in contravention of the constitution of the United States. I need hardly tell any hon. Gentle- 1180 man who knows anything about American law, or has read the works of Mr. Story, or the commentaries of Chancellor Kent, that this judicial system has worked admirably in the United States for the last seventy years, and that the decisions of the Supreme Court of the United States are of the highest authority, and are quoted as such in our courts of law.
Sir, I may now venture to assure the House that the constitution which I have proposed for these colonies is founded upon the principles and experience of our race. For the plantations in North America, starting from the same premises from which I have started, that is, from the same rules of positive law, and from the same constitutional maxims, arrived at the conclusion that they were by the constitution of England entitled to the same rights which I entreat the House to give to the colonies of Australia. In proof of this position, I might quote the writings of Governor Pownal, in 1760; but I will merely quote a few sentences from the declaration of rights put forth by the continental congress of 1774, two years before the declaration of independence, and when the majority of the inhabitants of the North American plantations were far from thinking of independence:—
The good people of the several colonies, alarmed at the arbitrary proceedings of Parliament and the Administration, declare—That their ancestors were, at the time of their emigration, entitled to all the rights and liberties of natural-born subjects within the realm of England. That by such emigration they by no means forfeited any of those rights, but that they were, and their descendants now are, entitled to the exercise of all such of those rights as their circumstances enabled them to exercise. That the foundation of English liberty is a right in the people to participate in their legislative council; and as the English colonists are not represented, and can not be properly represented in the British Parliament, they are entitled to an exclusive power of legislation in their several provincial parliaments in all cases of taxation and internal polity, subject only to the negative of the Sovereign.Sir, unfortunately we did not assent to these positions, and the plantations rebelled. During the rebellion, hostility to England was their bond of confederation. When they gained their independence, that bond was dissolved, and the Union was for a moment on the eve of perishing. Then, according to De Tocqueville, an event occurred new in the history of nations, and of which all Anglo-Saxon men should be proud:—Then a great nation, informed by its legislators that the wheels of government were about to 1181 stop, proceeded, without fear of precipitation, to search out the causes of the defect, and waited patiently for two whole years to discover the remedy; and when the remedy was discovered, they willingly submitted to it without its costing one tear or one single drop of human blood.The result was the existing constitution of the United States. The great statesmen who framed that constitution had this problem to solve (the same which I have endeavoured to solve); to divide the powers of government between the States and the Union, so as to reserve to the States self-government in their internal affairs, and at the same to invest the Union with the general government of the whole nation. The men who framed that constitution were deeply read and firmly believed in the constitutional law of England; and they modelled their new constitution after their ideas of the old one. They invested the Union with all the executive prerogatives of the Crown, almost copying the language of Blackstone; and thus gave to the Union all the Imperial powers which I propose to reserve to the Crown. They deprived the States of certain powers which are almost identical with the restrictions which I propose to put upon the powers of the colonial parliaments. In order to prevent the Union from encroaching upon the powers of the States, and in order to prevent the States from curtailing the powers of the Union, they established a Supreme Court, and a judicial system similar to that which I propose for the colonies.The most difficult and important questions which have been brought before the Supreme Court of the United States, have been questions with regard to the powers of Congress, and with regard to the powers which Congress possesses, concurrently with the States, of laying on taxes. Now, similar questions cannot arise under my colonial constitution, because I do not propose to put any legal limit to the powers of the Imperial Parliament. The constitutional questions which can arise under my colonial constitution, appear, from the experience of the United States, to be of rare occurrence, and easily decided. Now, as I have already stated, every one who has studied the subject acknowledges that as far as the division of the powers of government is concerned, the constitution of the United States has worked well for the last seventy years. Therefore I am entitled to infer that my constitution for the colonies, which, as far as the division of the powers of government is concerned, 1182 is similar in principle and machinery to that of the United States, would also work well.
Sir, it seems to me that there is a striking analogy between the system of government of the United States, and what ought to be the system of government of our colonial empire. For the United States is a system of States clustered round a central republic. Our colonial empire ought to be a system of colonies clustered round the hereditary monarchy of England. The hereditary monarchy should possess all the powers of government, with the exception of that of taxation, which the central republic possesses. If it possessed less, the empire would cease to be one body politic; if it continue to possess more, the colonies will be discontented at the want of self-government, and on the first occasion would imitate their brethren in America. To prevent such an event, I propose that the Colonial Office shall cease to interfere with the management of the local affairs of these colonies, and that they shall possess the greatest amount of self-government that is not inconsistent with the unity and well-being of the British empire. With this object in view, I submit to the consideration of the House the measures to which I have referred. I do so with diffidence as to the details of these measures, but with confidence that they are founded upon the true principles of colonial policy. I therefore ask the House to recommit this Bill, and to consider these measures in detail.
§ Motion made, and Question put, "That the Bill be recommitted."
§ MR. ADDERLEYseconded the Motion.
§ MR. LABOUCHEREsaid, he wished very briefly to state the reasons why he could not accede to the proposal of the hon. Baronet to recommit this Bill, for the purpose of considering the clauses of which the hon. Member had given notice. The subject which the hon. Baronet had brought forward was not new to the House, as it had been already explained to them with great detail and much ability by the hon. Gentleman. With regard to the great object which the hon. Baronet professed to have in view, there was no difference between them, that object being to secure the true interest of both the mother country and the colonies, by leaving the management of local concerns, as much as possible exclusively to the colonies, while the mother country exercised her authority in restraining the different colonial posses- 1183 sions from acting in a hostile spirit towards each other. To that principle he did not purpose to offer any opposition: but it was because he was convinced that the scheme and the machinery by which the hon. Baronet sought to carry out his object would be so far from effecting it, that, on the contrary, it would be the means of producing certain discontent in every part of the colonial empire, that he felt bound to oppose the present Motion. What were the principles of the scheme which the hon. Baronet proposed? The hon. Baronet undertook in an Act of Parliament to define the prerogatives of the Crown, and to define and limit imperial questions, as distinguished from questions of a local nature. The hon. Baronet told the colonies that they were not to interfere in the matters excepted in the Bill, but that they were to be at liberty to interfere in all other matters whatever. Now, he (Mr. Labouchere) would maintain that it was impossible to define, with sufficient precision, the distinction between colonial and Imperial interests, and still more the prerogatives of the Crown. The hon. Baronet had quoted Blackstone; but he should be very much astonished, indeed, to hear any lawyer of eminence say that all matters in which the Royal prerogative was likely to arise, might be introduced in an Act of Parliament. There were many points of this character which occurred even to himself, as being omitted from the hon. Baronet's list. For instance, the entire question of martial law was left out, and also the whole subject of escheats, so that if a man die intestate and without kin in the colonies, his property would go to entire waste. There were, no doubt, other points which would occur to a legal mind as being omitted in the eighteen heads to which the hon. Baronet limited the Royal prerogative. He apprehended that questions would at once arise between the colonies and the Imperial Parliament which would have to be referred to the Judicial Committee of the Privy Council. The hon. Baronet, aguing from the analogy of the United States' system, expected that the decisions would give complete satisfaction; but he (Mr. Labouchere) totally dissented from any such supposition. He believed that the system would lead to endless irregularities, and that the consequence would be confusion and delay, and greater discontent than had ever before existed. The analogy on which the hon. Baronet dwelt so much, as drawn from the Supreme Court of the 1184 United States, was altogether a mistake. That Supreme Court was, no doubt, a very valuable institution, but there was no similarity between it and the system of the hon. Baronet. The Supreme Court represented in an equal manner all the different portions of the country; and the different States, at least hitherto—he would not say what the effect might be on the annexation of California—hitherto the different States had not been separated to so great a distance from each other as to prevent the plan from working. But that was different from the plan proposed by his hon. Friend, where the court would have to adjudicate upon questions coming from the other end of the world. There was another point to which he wished to draw the attention of the hon. Baronet—that, according to the arrangement he proposed, a difference arising between the mother country and the colonies could not be discussed in the spirit of compromise, with a desire to yield a little on both sides, and thus to arrive at a satisfactory conclusion, but it would be decided on by judicial, nay it might be on technical grounds, without regard to the consequences that might ensue. To suppose that such a scheme would lead to the conciliation of the colonies, was one of the wildest imaginations that ever entered into the mind of his ingenious Friend. He was unwilling to detain the House longer; he believed that however well intended this scheme might be, the machinery by which it was proposed to be carried into effect was so involved and intricate, that that alone would be a conclusive objection to the measure. It was an observation of Burke's, in relation to colonial measures, that a refined policy ever was the parent of confusion, and ever would be; and he was satisfied that this would be pre-eminently the case with his hon. Friend's scheme, which would be disastrous where it was not inoperative. None of the colonies had asked for such a plan; he believed to none of them would it be acceptable; and, therefore, he hoped the House would not consent to the Motion.
§ MR. ADDERLEYsaid, he must complain of the off-hand manner in which the right hon. Gentleman the President of the Board of Trade had treated this question: the right hon. Gentleman seemed to think that a reply of ten minutes was sufficient to meet the elaborate and statesmanlike speech of the hon. Baronet the Member for Southwark. At the beginning of his speech, the right hon. Gentleman said the 1185 scheme was not new—before he sat down he declared it was one of the wildest schemes that had ever entered the brain of man. He should certainly have been surprised if the hon. Baronet had said it was new, for the right hon. Gentleman and his colleagues had admitted the principle again and again. The difference between them was this—that the hon. Baronet was both ready to lay down the principle and to apply it; the Government were willing enough to lay down the principle, but they fought shy of the application. He would remind the House that the question now before the House did not trench upon the subject of former debates. These debates had referred to the best form of government which they could give the colonies, and that which the colonies were most anxious to obtain; but this was altogether a new question—a question in which the Australian colonies were not alone concerned, but which related to all the colonies of the empire. The question was, whether, the form of government being settled, they would give up the legislation of colonial affairs to the colonies or not; whether they would retain the interference with the colonies of the Colonial Office—a system which nobody in the House had ever defended, except those who happened for the time to be in the Colonial Office. The answer of the right hon. Gentleman was that he agreed generally in the theory, and that he and his colleagues had carried it out as far as it was practicable; that they only stopped when its application became wild and chimerical. The theory was, in fact, the theory of the Whig party—it was the doctrine on which they plumed themselves before they came into office; but all he could say was, that if they did not now repudiate it, at all events they were not ready to carry it out in practice, but that with a boldness in their mode of proceeding which was almost captivating, they first asserted a great principle, and then carried out a measure which was directly contrary to that principle. That this had been the principle of the Whig party he would prove from the speeches of Earl Grey and the hon. Gentleman the Under Secretary for the Colonies. In the memorable debate on New Zealand, in 1845, Earl Grey, then Lord Howick, said—
The duties of Government required in an infant settlement might be discharged by the colonists themselves. He hoped they would revert to the ancient and wise policy of their ancestors, and 1186 allow the colonists to govern themselves. When he looked at what their ancestors accomplished two centuries ago under this system, and contrasted it with the results of attempting to govern from Downing-street a settlement at the Antipodes, he must say experience was decidedly in favour of allowing a colony to govern itself. We have melancholy proof of the height to which misgovernment might be carried in Downing-street before an effective remedy could be applied. From experience in Downing-street he was persuaded that it was utterly impossible for any man, be his talents and industry what they might, adequately to administer such complicated affairs all over the world. It was totally impossible to remedy this deficiency by constituting a board.This was the whole question at issue—whether the Colonial Office was to administer the local affairs of the colonies, or whether the colonies were to be allowed to administer those affairs themselves. Then, in the same debate, the present hon. Under Secretary for the Colonies said—Complaints were capriciously treated, when they interfered with the schemes and plans of the Colonial Office. But a spirit was springing up in the colonies which would force on this Office a different system. All he contended for was this, that nothing could so speedily and so surely accelerate the prosperity of the colonies as their emancipation from the hands of the colonial authorities at home, and their being left as free agents to govern themselves, with as little interference from home as the political relations of the mother country would permit.That was a strong opinion given on the part of the hon. Gentleman. The principle now before the House was not, therefore, to be considered as new; and, however insignificant it might appear to the right hon. the President of the Board of Trade, it was universally considered very important in the eyes of his colleagues. What was the theory? Simply this, that occupation colonies have a right to the British constitution; that the British constitution was a mixed constitution, and did not recognise the interference of the Crown in all its branches, which were independent of each other, and intended as checks—one branch always being purely popular; that to carry out this constitution in distant dependencies required the delegation of the Crown functions to a governor on the spot; but that the governor having acted, there remained no second action for the Crown—no double-barrelled monarchy. In all matters, then, of legislation on the spot, the Crown must wholly delegate its functions to its representative; and all metropolitan vetoes, minute local instructions, reservations, and disallowances of local ordinances, were a breach of British privileges, being a stage of legislation 1187 unknown to the British constitution. But in all matters which only affect the colonies in common with the rest of the empire—matters imperial—the Crown and Imperial Parliament acted for the whole, without any consultation with the local parliaments. But what was the Government Bill? Any approach to this? None whatever, but a sort of constitution, half Russian, half English—a cross between a principle of despotism and oligarchy, with a spice of democracy dashed over the whole. In every act of legislation there is—1st. The Crown riding over all. 2nd. The Crown Governor. 3rd. The Crown nominees; and last, in the corner, assuitur pannus unus of the British principle of popular representation. [Cries of "Divide!" If hon. Members were determined not to listen to the discussion, he was ready to vote on the question at once; but it was impossible for him to proceed in the present temper of the House. What was there impossible in the measure? So far as he understood the brief and hurried speech of the right hon. Gentleman, his objection to the system was, that it was impossible to define the prerogative of the Crown. The right hon. Gentleman declared that he had never heard of an attempt to define the prerogative of the Crown before; but he (Mr. Adderley) had always understood that it was one of the most important privileges of the British people, that they had liberty to define the prerogatives of the Crown; and undefined prerogative was certainly a new sort of argument in the mouth of a Whig. From the days of the Edwards down to the present, many statutes had been passed for no other purpose than to define the prerogative of the Crown. But, said the right hon. Gentleman, the hon. Baronet has omitted from his enumeration of the prerogatives the right of proclaiming martial law. Now, let the House consider, with reference to this, a recent case where that right was called into play. It had lately been considered to be necessary that martial law should be proclaimed in Ceylon; but according to the right hon. Gentleman it would have been much better that the proclamation should have been reserved in the hands of Queen Victoria, not in those of the Governor of the colony. He had always understood that martial law was to be proclaimed only in cases of great emergency; if then it could be postponed till instructions could be applied for and received from home, it ought not 1188 to be proclaimed at all. The right hon. Gentleman also objected that there was no analogy between the Supreme Court of the United States and this scheme, because, said he, the United States were not so far separated from each other as the colonies were from this country. The right hon. Gentleman did not see that it was the distance which gave strength to the argument of the hon. Baronet; and that, if the colonies and the mother country were near each other, there would be no more need of separation between local and imperial questions than exists between Cornwall and Middlesex. It was only the distance which prevented Her Majesty from appearing in person in our colonies, and which compelled her to delegate her functions to a Governor; and which, on the other hand, prevented the colonists from personal attendance in the Imperial Parliament. But neither the right hon. Gentleman nor the noble Lord at the head of the Government appeared to understand what the theory was. It was not, as they seemed to suppose, that a certain class of colonial laws should have imperial sanction, and all the rest not; but it proposed that, in all local affairs, the colony should wholly legislate, and that over imperial questions Parliament should wholly legislate, and the colonial legislatures should have no control whatever. Now, where was the impossibility of carrying out such a system? He could give plenty of proofs that it was possible to carry it out—he defied any one to show that it was impossible. The first proof he would bring was, that all empires made up of aggregate States had effected such a separation. His second proof was, that in all the early American colonies this country made such a separation. His third was, that in the present system of the United States such a separation was successfully made; and his fourth was, that in the present Bill the Ministers had attempted, though in a bungling manner, to make this very separation. In support of this question, he would read an extract from one of the very highest authorities on colonisation, Mr. Gibbon Wakefield. His words were—Until we began to colonise with convicts towards the end of the last century, the imperial power of England never, I believe, in a single instance, attempted to rule locally from a distance a body of its subjects who had gone forth from England and planted a colony. In every such case down to that time, the imperial authority recogcognised by word and deed the necessity of allowing the colonists themselves to govern locally. 1189 The colonists of Rhode Island were empowered 'to make, ordain, and constitute, or repeal such laws, statutes, orders and ordinances, forms and ceremonies of government and magistracy, as to them shall seem meet for the good and welfare of the said company, and for the government and ordering of the lauds and hereditaments, and of the people that do, or at any time hereafter shall, inhabit or be within the same.' It is needless to multiply such examples. Speaking generally, the powers of local government, both legislative and executive, were granted by a few simple and comprehensive words. Then came the restrictions:—For the English, having free institutions at home, had no machinery for administering the central system abroad. It was impossible that Parliament should itself legislate for many far-off dependencies. But, instead of delegating power to the colonies themselves, as till then had been the rule, the supreme authority created an Office in London, and upon it bestowed legislative and executive power over the colonies.For his second illustration, he need only remind the House, that the sole idea the great founders of American Independence had in framing Congress, was to obtain a substitute for the rejected imperial power of England. They left in the several States the old colonial local legislature; they gave a depositary for imperial functions. This, by the by, shows the mistaken idea of Congress in its imitation in this Bill. His third illustration, the present separation between local and central functions in the constitution of the United States, had been amply dealt with by the hon. Baronet. With regard to the last reason he had assigned, he might remind the House that in constituting a body which they called the General Assembly in this Bill, the Government themselves attempted the separation, and proposed to give them imperial power. ["No, no!"] He was satisfied that, on examination, it would be found so, although they had tried to jumble together imperial and local affairs; and the consequence, he was satisfied, would be found to be that the constitution of that body would prove the separation of the colonies from the mother country. But what he wanted was, to see if there was any chance of the colonies obtaining local self-government from this Bill; and on this subject he would read a few words from a newspaper which had just arrived from New South Wales; and as the noble Lord at the head of the Government on a former occasion had laid great stress on certain extracts from a newspaper he had received from the Jerusalem Coffee House, perhaps the Government would pay some attention to the following extract from the New South 1190 Wales Vindicator, of January 19, which had arrived since that time:—We have long been compelled to forego the just rights and privileges to which we are entitled as the sons and brothers of Britons. … We have all a right now to come forward, to claim those free institutions which we desire to be implanted amongst us, which shall confer on us the power of governing ourselves. … Ere long the new constitution for the government of this as well as the other Australian colonies will be received, and come into operation; and then, if the people are only true to themselves—they don't look to you or your Bill—a mighty change for the better may speedily be effected. … Public attention has been much aroused of late to the monstrous sort of 'constitutions' which have been thrust upon the colonies. … It is clear that there are now at last men in the British Parliament alive to the interests of the colonies, and we fully anticipate that Earl Grey's Bill, by the time it has become law, will have received such alterations and modifications as shall have made it perfectly acceptable to us.It was clear, therefore, that the colonies looked forward to the Bill merely as a means for self-emancipation, which would finally enable them to destroy it, and to arrive at local self-government, with the assistance of those who opposed Government in this House. The same feeling existed in other colonies. In other colonies the same complaint against this system of half-concession is made; and in Nova Scotia an able Member of the Legislature made similar complaints; he said—Lord J. Russell and Earl Grey were always leading us to suppose that they recognise our right to deal with matters of domestic and internal concerns; but these professions only end in the British Government withdrawing from the control of our affairs when it is convenient for them in that way to get out of their promises and debts, but immediately after recurring to their system of interference and domination.He instanced the dismissal of Mr. Fairbairn, the repudiation of arrears of salaries, and the purgation of the commission of magistrates in that colony. He added—We would prefer less independence if we might only know what we have with distinctness; and what we have, let us possess on some sure foundation. If the veto on our acts is to be ineffectual, why retain it? If it is to be used on convenient occasions it will irritate, but never command willing acquiescence. Control once repudiated, and yet recurred to under pretence of its being only nominal, can never again be looked upon as legitimate; it will only be yielded to per force, and for ever kicked at, till at last with it will go the whole connexion.He thought, therefore, he had a right to appeal to the Government, and ask them whether they would carry out their principle and drop their measure, or whether 1191 they would carry their measure, and repudiate their principle? And he appealed to those hon. Members who had hitherto supported the Government, whether they would continue to prop up the meddling interference of the Colonial Office, or whether they would give their votes, as they had already given their speeches, in favour of the right of the colonies to manage their own affairs, without the mischievous abuse and bootless expense of the Colonial Office.
§ SIR G. GREYwould remind the House that the specific Motion before it was, that this Bill be recommitted for the purpose of introducing clauses, purporting to define imperial and colonial questions, and to give the colonial legislature the absolute unrestricted power of dealing with questions strictly colonial, reserving to the Queen in Council—not to Parliament—the right of dealing with matters which were to be considered strictly imperial. The hon. Member for North Staffordshire appeared totally to misapprehend the arguments of the right hon. Gentleman the President of the Board of Trade. The hon. Gentleman said, that the Government advocated the principle of allowing colonial legislatures to legislate upon all subjects falling properly within their province, and he seemed to think that there was some great inconsistency in the Government opposing the introduction of these clauses. But the great objection made by his right hon. Friend the President of the Board of Trade was, that the clauses showed the impracticability of inserting in an Act of Parliament any such accurate definition of imperial and colonial questions as could carry out the object proposed. The hon. Baronet the Member for Southwark proposed to specify certain powers and prerogatives which should be reserved to the Queen in Council; and at the end of the list of these, fifteen in number, he would add—"And all powers necessary for giving effect to the above powers and prerogatives." It was to the vagueness of the proposed definition that the great objection lay; and one could hardly conceive anything more unwise than to insert in the Act an uncertain definition, likely to raise all sorts of questions. The sentence just alluded to was certainly most comprehensive; and the result of the clause would be perpetual doubt, and constant questions and collision between the colonial and imperial authorities. That was the objection raised by the right hon. Gentleman to this proposal. He (Sir G. Grey) entertained 1192 that objection himself; and he must apologise to the hon. Gentleman, though not to the House, for not being able to speak half an hour upon the subject.
§ MR. GLADSTONEcould not give the vote which he intended to give in support of the Motion of the hon. Baronet, without stating briefly to the House what he intended to imply by that vote. The right hon. Gentleman who had just sat down expressed the opinion that it would be found quite impossible in practice to draw the line of demarcation between the powers of the Crown and the Parliament on the one hand, and the powers of the legislative assemblies of the colonies on the other. It would be too much he (Mr. Gladstone) thought to assert, in very strong terms, the negative of that proposition. But the principle on which he intended to give his vote was this, that it was a most valuable and important object to attain to emancipate the colonial legislatures altogether, in all matters purely of a local nature, from the control and interference of the Government at home, excepting upon defined and specified subjects, involving imperial considerations. That, he conceived, was an object of sound colonial policy, secondary to none in value and importance. But then it was said it was impracticable. Now, he had seen enough of its practicability to justify him in giving his vote in favour of having the question carefully examined; for he did not think that vague opinions glibly explained in debate were any sufficient answer to a Motion that contemplated the attainment of a great practical object, because we must recollect that we had in former times colonies in North America, the acts of which were not subject to any review whatever at home. These colonies grew and flourished under that system; and no inconvenience that he was aware of was ever felt while that system remained. At present if an Act passed a colonial legislature, and it were found in the minutest point to contravene the law of England, the Secretary of State was obliged to disallow it, and call upon the colony to amend it. Why was that so, that the law of England in every particular overrode the law of the colony? Might it not be that a multitude of details rendered it desirable that the local legislature should have the power of departing from the law of England? Whilst this might be required for the convenience of the colony, it would also be for the benefit of the mother coun- 1193 try, because he thought it desirable to relieve this country from its present responsibility on matters in which it could exercise no effective, valuable, or serviceable control. On these accounts, he thought the question ought to be most carefully examined by persons of the highest legal acquirements and acumen, as to whether it was not advisable to define strict limits within which the imperial power should be reserved, and subject to which an unlimited discretion should be given to legislatures of the colonies, so as to get rid of a great portion of the machinery of an administrative department, which had worked—perhaps of necessity—in this country in a way to cause most painful divisions, and in some manner, in his opinion, to involve national discredit. On that ground, and not assuming that the result of the investigation would be completely successful, but believing it would be of great value and importance, he should vote with the hon. Gentleman the Member for Southwark for the recommittal of the Bill.
§ The House divided:—Ayes 42; Noes 165: Majority 123.
| List of the AYES. | |
| Adair, H. E. | Manners, Lord G. |
| Booth, Sir R. G. | Napier, J. |
| Brisco, M. | O'Brien, Sir L. |
| Brooke, Lord | O'Connor, F. |
| Cobbold, J. C. | Scholefield, W. |
| Cobden, R. | Scott, hon. F. |
| Conolly, T. | Seymer, H. K. |
| Currie, H. | Stanley, hon. E. H. |
| Deedes, W. | Sturt, H. G. |
| Disraeli, B. | Sullivan, M. |
| Duckworth, Sir J. T. B. | Sutton, J. H. M. |
| Dundas, G. | Taylor, T. E. |
| Fitzroy, hon. H. | Thompson, Ald. |
| Floyer, J. | Turner, G. J. |
| Fortescue, C. | Tyrell, Sir J. T. |
| Fox, S. W. L. | Verner, Sir W. |
| Gibson, rt. hon. T. M. | Vyse, R. H. R. H. |
| Gladstone, rt. hon. W. E. | Williams, J. |
| Gore, W. R. O. | Wyld, J. |
| Hornby, J. | |
| Hudson, G. | TELLERS. |
| Lennox, Lord A. G. | Molesworth, Sir W. |
| Lushington, C. | Adderley, C. B. |
| List of the NOES. | |
| Adair, R. A. S. | Berkeley, C. L. G. |
| Anderson, A. | Bernal, R. |
| Anstey, T. C. | Birch, Sir T. B. |
| Armstrong, Sir A. | Blackall, S. W. |
| Baines, rt. hon. M. T. | Blair, S. |
| Baring, H. B. | Bouverie, hon. E. P. |
| Baring, rt. hon. Sir F. T. | Boyd, J. |
| Barnard, E. G. | Boyle, hon. Col. |
| Bass, M. T. | Bramston, T. W. |
| Berkeley, Adm. | Brotherton, J. |
| Berkeley, hon. H. F. | Buller, Sir J. Y. |
| Burke, Sir T. J. | Lindsey, hon. Col. |
| Campbell, hon. W. F. | Littleton, hon. E. R. |
| Caulfeild, J. M. | Loch, J. |
| Cavendish, hon. G. H. | Lygon, hon. Gen. |
| Cavendish, W. G. | Mackinnon, W. A. |
| Clerk, rt. hon. Sir G. | M'Cullagh, W. T. |
| Colebrooke, Sir T. E. | M'Gregor, J. |
| Collins, W. | M'Taggart, Sir J. |
| Colvile, C. R. | Martin, J. |
| Cowan, C. | Matheson, J. |
| Cowper, hon. W. F. | Maule, rt. hon. F. |
| Cubitt, W. | Melgund, Visct. |
| Dalrymple, Capt. | Milner, W. M. E. |
| Davie, Sir H. R. F. | Milnes, R. M. |
| Dawson, hon. T. V. | Morgan, H. K. G. |
| Denison, E. | Morison, Sir W. |
| Denison, J. E. | Morris, D. |
| D'Eyncourt, rt. hn. C. T. | Mostyn, hon. E. M. L. |
| Divett, E. | Norreys, Lord |
| Duff, J. | O'Connell, M. |
| Duncuft, J. | O'Flaherty, A. |
| Dundas, Adm. | Ogle, S. C. H. |
| Dundas, rt. hon. Sir D. | Paget, Lord A. |
| East, Sir J. B. | Paget, Lord G. |
| Ebrington, Visct. | Palmerston, Visct. |
| Ellice, E. | Patten, J. W. |
| Ellis, J. | Peel, rt. hon. Sir R. |
| Elliott, hon. J. E. | Pelham, hon. D. A. |
| Enfield, Visct. | Pinney, W. |
| Estcourt, J. B. B. | Plowden, W. H. C. |
| Euston, Earl of | Pugh, D. |
| Evans, Sir D. L. | Raphael, A. |
| Fagan, W. | Rawdon, Col. |
| Ferguson, Col. | Rice, E. R. |
| Ferguson, Sir R. A. | Roche, E. B. |
| FitzPatrick, rt. hn. J. W. | Romilly, Col. |
| Fordyce, A. D. | Romilly, Sir J. |
| Forster, M. | Russell, hon. E. S. |
| French, F. | Rutherfurd, A. |
| Glyn, G. C. | Scrope, G. P. |
| Grace, O. D. J. | Seymour, Lord |
| Graham, rt. hon. Sir J. | Sheil, rt. hon. R. L. |
| Granger, T. C. | Shelburne, Earl of |
| Greenall, G. | Sheridan, R. B. |
| Greene, T. | Smith, J. A. |
| Grenfell, C. P. | Smyth, J. B. |
| Grenfell, C. W. | Somers, J. P. |
| Grey, rt. hon. Sir G. | Somerville, rt. hon. Sir W. |
| Hallyburton, Lord J. F. | Stansfield, W. R. C. |
| Harris, R. | Stanton, W. H. |
| Hatchell, J. | Stuart, H. |
| Hawes, B. | Tenison, E. K. |
| Hayter, rt. hon. W. G. | Thicknesse, R. A. |
| Headlam, T. E. | Thompson, Col. |
| Heald, J. | Thornely, T. |
| Heathcote, G. J. | Townshend, Capt. |
| Heneage, G. H. W. | Trelawny, J. S. |
| Henry, A. | Trollope, Sir J. |
| Hervey, Lord A. | Tufnell, H. |
| Heywood, J. | Vane, Lord H. |
| Hodges, T. L. | Verney, Sir H. |
| Howard, Lord E. | Vivian, J. H. |
| Howard, hon. C. W. G. | Walmsley, Sir J. |
| Hume, J. | Wellesley, Lord C. |
| Humphery, Ald. | Westhead, J. P. B. |
| Hutchins, E. J. | Wilson, J. |
| Jervis, Sir J. | Wilson, M. |
| Kildare, Marq. of | Wood, rt. hon. Sir C. |
| Labouchere, rt. hon. H. | Wrightson, W. B. |
| Lascelles, hon. W. S. | Young, Sir J. |
| Legh, G. C. | TELLERS. |
| Lemon, Sir C. | Hill, Lord M. |
| Lewis, G. C. | Bellew, R. M. |
§ MR. GLADSTONEthen rose to bring forward the Motion of which he had given notice, consisting of a clause and several provisoes on the framing and construction of which he prayed for a lenient consideration by the House. He desired to propose that, whatever might be the state of the law here, inasmuch as great doubts affected the right of the members of the Church of England in the Australian colonies to make regulations for the conduct of their local affairs in spiritual matters, these doubts ought not to be allowed to impede their free action in that respect, but that it should be lawful for the bishop, and clergy, and laymen, declared members of the Church, and in communion with it, to meet together on the footing of mutual assent, and adopt such measures for their government as they might consider desirable and expedient. And here, he must say, that he thought it the absolute duty of the Government, charged as they were with the superintendence in so many ways of the interests of the Church, to have included this subject in any attempt to pass a final Act with regard to the local affairs of the Australian colonies. But as they, with the best means at their command for discharging this duty, had not thought proper to undertake it, he had himself very reluctantly stepped so far into their place as to have applied the very limited means within his reach for preparing a proposition to submit to the House on this question. He hoped, therefore, that what he had to say would be considered with some indulgence, and that the law officers of the Crown (whose legal acuteness ought to be directed to devising and framing legislation on this subject, instead of being confined to criticising and objecting to the plans of legislation submitted by others) would at least treat him with mercy and forbearance. He had placed on the list of Notices a clause which enabled and gave the sanction of Parliament to these proceedings of the members of the Church in Australia, on the footing simply of a voluntary and private compact; and he could not declare too early or too explicitly what was the nature of his object. The House ought well to understand that the system of established religion did not prevail in Australia for any useful, intelligible, or rational purpose. It prevailed, if it prevailed there at all, for no other purposes whatever than those of incumbrance and vexation, of impediment to law and to order, of disturbance to the minds and the 1196 feelings of men; giving occasion sometimes to the raising of claims which, whatever they might be here, were there altogether out of place; never leading to, nor ever being entitled to lead to, the recognition of those claims, which were wholly alien to the state of society in these colonies; but, at the same time, retaining an unfortunate and disastrous existence, for the purpose of impeding the religious action of the Church, of preventing good understanding among her members, and of introducing confusion where peace and harmony ought to prevail. He therefore proposed to call on the House not to take upon itself the responsibility of determining what the system of church discipline and government should be in Australia—for in doing that he thought they would fall into a fatal error—but simply to untie the hands of those of their fellow-Christians and fellow-subjects who are members of the same Church and profession of religion to which the great majority of themselves adhered, and which was established in this country—to untie the hands of those who had carried the same faith and the same principles into distant lands, but who found themselves in these distant lands divested of every advantage which we possess by law, and divested at the same time, or deprived, and hindered, and barred from every advantage which the dissenting communities possessed in virtue of their civil rights and privileges as Englishmen. And he would point out to the House that it lay under the absolute obligation to provide one of two things—either that members of the Church established by law should carry out to the colonies the privileges they here enjoyed; or if it should appear, as he believed it did, not desirable for that Church itself, nor agreeable to the feelings of the community, that they should carry out these privileges, that at all events they should fall back upon original and natural freedom, and that we should not have an exception to the general system of freedom that prevails in the colonies, by leaving the members of any religious profession, and least of all, if he might say so, those of the communion to which he referred, under those disabilities which the law imposes, without any of the corresponding advantages which it confers. Besides the clause he had read, he proposed to submit five provisoes, which appeared in the Votes—all of them limiting the enacting power; but he considered it to be simply a declaration of the restoration of these persons 1197 to their original freedom as individuals; the limitations being proposed from a regard to sentiments of jealousy which he was unwilling to arouse. He could not say that he believed these provisoes to be either absolutely necessary or strictly justifiable on principle; because there was nothing in the state of the Church in Australia which warranted us in adopting towards it a system of exceptional legislation. But at the same time they were provisoes which would be consistent with the attainment of the practical object that he had in view. The first of them provided, and he thought very properly—
That it shall not be lawful to impose or inflict, by any such regulation, any temporal or pecuniary penalty or disability other than such as may attach to the avoidance of any office or benefice held in the said Church.The second proviso was—That no such regulation shall be binding on any person or persons other than the said bishop or bishops, and the clergy and the lay persons within the said colonies who are or may be declared members of the Church of England, or otherwise in communion with him or them respectively.The third was—That any such regulation, touching the existing relation of the said bishops, clergy, and others, to the Metropolitan See of Canterbury, shall be forthwith transmitted by the presiding bishop, or his deputy, to the archbishop of the said see, and shall be subject to disallowance by the said archbishop, under his hand and seal, at any time within twelve months from the passing of the said regulation, or within six months from the receipt thereof by the said archbishop, but not afterwards.The fourth was—That it shall not be competent to the said bishops, clergy, and lay persons, or any of them, to pass any regulation affecting the rights of the Crown in the nomination of bishops, without the consent of Her Majesty's Principal Secretary of State for the Colonies.The last proviso was intended to secure a substantial conformity in the colonial character with the Church at home; because it provided—That no such regulation made as aforesaid shall authorise the bishop of any diocese to eon-firm or consecrate, or to ordain, license, or institute, any person to any see, or to any pastoral charge or other episcopal or clerical office, except upon such person's having immediately before taken the oath of allegiance to Her Majesty, and having likewise subscribed the Articles of the United Church of England and Ireland, and declared his unfeigned assent and consent to the Book of Common Prayer.1198 He saw no injustice in requiring that they should continue to conform to the general and fundamental conditions on which the religious system of this country rested, as long as they thought fit to continue in communion with it. And he believed, likewise, that great jealousy would justly be excited if he proposed to give them the power of over-riding these conditions; although he was bound to say he did not believe that they would abuse the most unlimited freedom, even if it were granted to them. The House would observe that they were not dealing with the case of the Church at home, and likewise not with the case of the Church as it exists in the colonies generally. The state of the Church differed in one colony as compared with another throughout the wide circuit of our empire, almost as much as the state of the Church in any one colony differed from the state of the Church at home. In the West Indies the Church was a quasi establishment, possessing almost every privilege enjoyed by the Church at home. But go to our North American colonies; they would find they had great differences amongst themselves; but on the whole we should find them possessing very few of the features of the Established Church. The lands in Canada, indeed, were divided amongst the various religious bodies, but not in equal proportions. There was a large number of endowed rectories in Canada West, in favour of the Church of England; and, in fact, looking to the state of the Church of England and the Church of Rome in Canada, it could not be said that anything like a perfect religious equality prevailed. Therefore he asked the House to put aside all ideas gathered from the position of the Church at home, or in the West Indies, or in British North America. What they had to look to was the religious condition of the Australian colonies; and it was exclusively upon that he addressed the House on the demand which he now made. It was upon the grounds of religious equality in the first instance, although by no means exclusively, that he wished to base this demand. There was no religious preference worth a straw from one end of the Australian colonies to the other. It was true the Church was salaried, and its ministers received stipends; and it was equally true that in many cases her bishops might receive larger stipends than the bishops of the Church of Rome; but this was simply a matter of division as among the several ranks of the various re- 1199 ligious communities. Where Presbyterianism prevailed, of course there was no inequality; and in New South Wales the bishops naturally and properly drew larger salaries than the clergy; but the sums which the State provided for the purposes of religion were divided simply and solely—except in cases of life interest—according to the respective numbers of the different religious communities. There was nothing of a permanent character in these endowments. It had been the pleasure of Parliament to provide a certain sum annually, to be paid to the ministers of religion, or for the erection of churches; and it might be the pleasure of Parliament very shortly to alter that amount; and under the Bill now passing, increased facilities are given for altering it. It was called an endowment for the time being, indeed, but, strictly speaking, it was not an endowment, but a salary—a salary not belonging to any community on account of any particular religious profession, or on any other account, but open alike to all professions of religion which are included within the Christian name in this colony. Well, if this were so, he did urge that it was not just that the members of one of these professions should be placed, or should be left, under disabilities that did not attach to others. He maintained, that whatever their condition might be, they ought to be put on a footing of equality with other religious communities. He did not deny that we had the power, but we had no right, as a matter of justice and equity, to leave them under disabilities which are derived from the operation of laws at home, when all the beneficial provisions of these laws had ceased to act in their favour. But the case was one of very great urgency to have settled by that House, because we could not play these pranks; for he must say that Parliament and the State had been playing pranks with the Church for a considerable time, and particularly with the colonial church—we could not exhibit this contemptuous neglect of what was necessary for her peace and order without very great practical evil; and he would show them that the practical evils caused in the colonies by such a state of things had been allowed to attain considerable magnitude. What were these practical evils? First, as to endowment. There were the colonies beyond New South Wales, including Port Phillip, Van Diemen's Land, South Australia, and Western Australia; but Western 1200 Australia was a case too insignificant to be mentioned. With regard to South Australia, Parliament had no information, but he believed that no endowment had been voted for that colony, or, at all events, that it was something very slight. Then he would pass that by also; but the great gist of the case lay in New South Wales and Van Diemen's Land. The systems of these two colonies were so nearly akin, the one to the other, that he would take them as if they were they same; and, inasmuch as the law was more express in its enactments in Van Diemen's Land than in New South Wales, he would principally refer to the law as it existed in Van Diemen's Land. The provisions of the law with regard to endowments was generally this: When a certain number of adult persons, declaring themselves to belong to any Christian communion, associated together to become a congregation of that communion, and had subscribed a certain amount, whether it was towards the stipend of a clergyman, or the erection of a parsonage or a church, then the State should step in to aid them by a corresponding contribution. It also provided that no salary should be payable to any clergyman unless he was appointed according to the laws and usages of the communion to which he belonged, and unless his appointment had been confirmed by Her Majesty, or the Lieutenant Governor. It also provided that no such clergyman should continue to be paid his salary after he had been tried and deprived for any ecclesiastical offence, according to the laws and usages of his communion. And a third provision gave power to the Executive Government to institute inquiries into the conduct of any clergyman suspected of not being engaged in discharging his duties; and if the charge were proved, to discontinue the payment of his salary. That, in general terms, was the legal system of endowed, or, more properly speaking, stipendiary, establishments which prevailed, as far as any such system prevailed, in the Australian colonies; and it took no cognisance whatever of the differences of one church from another, excepting in Van Diemen's Land, mentioning by name the English, the Scotch, and the Romish churches; but these three comprehended nearly the entire community; but there the English Church had just the same provisions as to endowment as the other churches. Therefore the equality of these religions in the eye of the law, so far as 1201 that colony was concerned, was perfect and absolute. He did not think there was the slightest deduction of variation from it in any particular. The principle of not paying the stipend to a clergyman until his appointment was confirmed by the civil power, was not an unreasonable one, and applied equally to all communities. But there was this difference as regarded the Church of England, that whilst the appointment lay with the Government in the case of the Church of England, in the case of the other churches it did not lie with the civil power at all, very great weight in their cases being given to the recommendation of the bishops. He was not now complaining of the distinction, but simply stating it to be accurate. In regard to the Church of England, then, the power of appointment lay with the governor. There was a sort of nominal transfer of the ecclesiastical law of England, which was enforced at the date of the charter of the colonies, to these colonies; and a more complete delusion and imposture than that transfer it would be difficult to conceive, because he did not believe there was a single point of the ecclesiastical law of England, except one that he would name by and by, of which we had power to enforce the observance. Whatever was done there was done by the good will and the sense of propriety of the parties; but law, properly speaking, there was really none. Our own law regarding clergy discipline was found in such a state a few years ago that we had to endeavour to amend it; but the Acts to amend it were of no force whatever in the colonies. Besides this principle of transfer, the case was greatly altered in going to a colony. Blackstone pointed out that the jurisdiction of our ecclesiastical courts was among those features of our scheme of law which could not be held applicable to a colony. But they tried to make up for this by supplementary provisions, and inserted in the patents of their bishops great powers. They sent them out armed with authority to erect consistorial courts, to administer the affairs of their dioceses, to visit, to reform, and to correct, without any restraint whatever except that of an appeal to the Archbishop of Canterbury. But in conferring these powers, it had been found they had committed illegal acts, and it had been the duty of Her Majesty's legal advisers to state that Her Majesty had committed, not under one, but under a succession of Governments, by a succession of 1202 patents, under a succession of bishops, a succession of illegal acts, by conferring great powers which only required to be rejected in order to be condemned. The able and zealous Bishop of Van Diemen's Land endeavoured to give reality to his authority by the establishment of a consistorial court. What happened? The Dissenters at once took offence, and got up meetings against it. The Scotch quoted the Act of Union, and when the subject was brought under the notice of the law officers of the Crown, it was their painful duty to declare Her Majesty's act to be illegal. As to the power of appeal to the Archbishop of Canterbury, it was only an appeal on paper, and was worthless. He remembered the case of an unfortunate clergyman who came over to prosecute an appeal; but the Archbishop was obliged to confess he had no power whatever, and the clergyman had to go back to the Antipodes, whence be came. But, it might be said, that the present system worked well—that there was no necessity for stringent laws where people were disposed to behave themselves; surely, however, it would not be sought to apply this principle to large communities. It would be contrary to common sense and to universal practice to do so. Where communities existed, strictly administered laws must of necessity exist also. He had made broad and strong general assertions, but they could be established to the letter in detail. Begin with the bishop, not only because he was first in point of the dignity of his office, but because his position was the best. He did not place his case on the ground that the bishop had no power; on the contrary, he had very great and extensive powers. But what he said was this, that the bishop had not all the power he ought to possess, but that he had one very large and stringent power, to which he would presently call their attention. In that power lay his weakness. As an illustration of what he meant, he might adduce the case of Russia as compared with England. Russia was despotic—the power of Government unlimited, and yet the Executive of this country was very much stronger than the Executive of Russia. If, then, the bishop's power was limited, he would be stronger for every useful purpose. He was unable to bring any matter of importance to a settlement; but he could inflict the most grievous injustice on the clergy around him. He was not going to make any charges; but in showing them the inconvenience of the pre- 1203 sent state of the law respecting licences, he hoped he could induce them to interpose their benevolent aid, not to devise laws, but to set parties free to devise laws for themselves. The bishop had no power to do justice as a judge. He could not compel the attendance of witnesses to give evidence of the misconduct of any clergyman; and if they were willing to come, it would be with the greatest fear, as they would be open to an action for libel or defamation of character at the hands of the accused clergyman. But, on the other hand, no clergyman could officiate in the colony without a licence from the bishop, the issuing of which was entirely an act of free will. No man could compel him to issue it; and when it was issued, the bishop could at any time, and on any grounds he pleased, revoke it, without giving a reason for the act to any human being. Was this a state of things which ought to continue—a state of things involving the existence of one single arbitrary, unbalanced power, and one power alone—in the church system of the Australian colonies? Let it be remembered that the withdrawal of a licence was the withdrawal from the clergyman of his maintenance, so that all the clergymen in question were dependent upon the private will of the bishop for the means of subsistence. This might be just, but it was a state of matters without the forms or the safeguards of justice. The clergy in Van Diemen's Land and in New South Wales were of three classes—the old colonial chaplains, the chaplains appointed under the present Church Acts, and the missionary clergy sent out by this country for the propagation of the gospel. Upon all these gentlemen the law operated and pressed alike. The English ecclesiastical law recognised a clergyman having a cure of souls as a freeholder; but in the colonies it was no such thing; just take the case of the Rev. Mr. Wigmore; his licence was suspended on the ground of repeated insolvency, and for divers other reasons which the bishop considered inconsistent with his usefulness. Mr. Wigmore applied to the Supreme Court—he might be told, perhaps, the Supreme Court of Van Die-men's Land had ecclesiastical jurisdiction; so it had, for testamentary purposes, but it could not interfere in any spiritual case whatever. Mr. Wigmore applied for a rule nisi, calling on the bishop to show cause why he had revoked his licence. The counsel (Mr. Montagu) who appeared on behalf of Mr. Wigmore addressed a long argu- 1204 ment to the court, which, after all, did not supply any full exposition of what was the status of the clergy in that colony. He would ask, what was the social status of the clergy there? Some of the judges of the Supreme Court in New South Wales held that they were stipendiary curates, some that they were perpetual curates, but all agreed that they were not rectors. What was the issue of the cause? The court refused the rule nisi, and decided that the bishop had the power, sic volo, to grant a licence, or, sic volo, to withdraw it. Nothing then, remained for Mr. Wigmore to do, or, as he (Mr. Gladstone) thought, nothing more remained for him to do, than to come to Lambeth; but when he came, he found that the next thing he had to do was to go back again. Might they not, therefore, inquire, why it was that the bishop stood so safe in the exercise of an autocratic power? If that prelate had observed any of the forms of judicial proceeding, if he had instituted a public hearing, if he had called witnesses, if he had proceeded formally to pronounce Mr. Wigmore guilty, he might have exposed himself to various actions upon civil grounds; but he decided without any other form than the mere expression of his will: hence it became evident that there was a large power of a most exceptionable kind in the hands of the bishop, and it formed his only security to follow out the exercise of that power by steps of the most autocratical character. The only thing open to the bishop to say was, that he did those things because he thought fit. Now, if there were any power which ought to be put an end to, it was that. It was well known that there were many cases in New South Wales resembling that of Mr. Wigmore. It was not a matter to be confined to one bishop, but on the contrary must occur in several cases. Unhappily, there was at the present moment a very painful controversy going on at Sydney between two young clergymen and the bishop; as he did not know the rights of that controversy, he should not further advert to it; but the existence pf such controversies, and the manner in which they were conducted, very plainly showed a total want of law in the colony. It was plainly established by the case of Mr. Wigmore, that as regarded licences the bishop possessed absolute power: that was certainly the worst condition of the law, or rather of the absence of law; for there existed no law of any force in the colony under which a clergyman could be accused, brought to 1205 trial, and removed. There had been, as the House would remember, a proposition made to establish a court for that purpose; but the Government would not accede to that proposition. That the bishops might exercise their autocratical power as against delinquent clergymen would possibly be considered all very well; but what was to be done in cases of oppression—cases in which the individual clergyman accused was really innocent? Was he to appeal to the Archbishop of Canterbury? It had been already shown that in the present state of the law no such appeal would lie; but suppose that the law were to create such an appeal, would it answer that purpose—would the poor clergyman in New South Wales, however grievously oppressed, come to England to prosecute his appeal? How could a clergyman having an income of only 200l., or perhaps 150l., manage to come to England for the purpose of carrying an appeal before the Archbishop of Canterbury? If at the present moment there arose any case of oppression by a bishop, it appeared next to impossible that a clergyman could obtain redress. Further, he would ask, had the laity any remedy against a bishop? Every one acquainted with the law well knew that in that respect the laity were in the same position as the clergy. There was not a religious rite of which the layman could partake that the bishop might not interfere with. His corpse might not be excluded from the burial ground of the religious body to which he belonged; but from his baptism to his funeral there was nothing which the bishop might not deny him, and that denial would be final, for the laity possessed no means of compelling the bishop to redress any wrong. In this state of the law, then, he sought, not by any positive enactment, but rather by suggesting private arrangements and rules amongst the members of the Church of England themselves, to put an end to the causes of controversy and animosity. It was most undesirable that matters of such great importance should be left without the influence of law or private agreement. He hoped and believed that the Members of that House would not be parties to a condition of affairs in which no law was in force on a subject of so much moment. The facts of the cases that he had stated were scarcely open to any doubt; but he was far from recommending that any attempt should be made to transfer to those colonies the principles upon which our ecclesiastical courts in this 1206 country were founded. Such courts would not be applicable to colonies. For these reasons he thought that by the agency of a private association, able to enforce its own rules as far as they were not inconsistent with the law of the colony or of the mother country, the place of ecclesiastical courts might to a useful extent be supplied. If the members of the Church of England were not able to do that for themselves which the Roman Catholics, the Presbyterians, the Independents, the Baptists, did for themselves, the Parliament of this country could not help it. But this for their own protection they were bound to do, namely, to shift the responsibility off their own shoulders. He laid this clause before the House, under the strongest conviction that it was necessary; and he appealed to the House then with the more earnestness, as they were then for the last time dealing with that species of legislation. They, of course, well understood that the matters which he brought under their notice would be considered, and justly so, matters of internal regulation, and if they did not deal with them, then no other opportunity would present itself. Would it be right to leave such subjects to mere colonial legislation? If the Imperial Parliament did not undertake the task which he suggested, it would never be sufficiently performed. The colonial legislature would probably decline it, or if they entered upon it at all, would carry the principle of religious equality to such an extent as not to meet the case in the way that the House would wish. In the colony all the various forms of religion existing there stood upon terms of perfect equality; but if the colonial legislature were called upon to produce enactments necessary for the proper government of the Established Church of England in the colony, they would probably object to doing what was required lest it should be supposed to imply a future endowment of that Church, which many of the colonies would object to altogether. The House, doubtless, saw, as clearly as he could present it to their view, that the bishop possessed an autocratical power—strong enough for severity and oppression, but weak for any purposes of good. That which they wanted was either a public or a private law. If the House thought that more retraints ought to be imposed, let them say what they were. If any thought that the terms of his Motion were defective, he should reply that he sought to do for ecclesiastical affairs that which had already been done 1207 for civil affairs—namely, to leave them as free as possible. If they could by any other means obtain security for rights, or redress for wrongs, he should be willing to give up his proposition; but they must not argue from the state of the Church in this country to what might be the state of the Church in a colony. Submitting, then, to their consideration the Motion which he had brought forward, he confided it to their regard for religious economy and to their love of freedom. The right hon. Gentleman concluded by moving the following clause:—And whereas doubts have existed as to the rights and privileges of the bishops, clergy, and other members of the United Church of England and Ireland, in regard to the management of the internal affairs thereof in the said colonies—be it enacted, that it shall be lawful for the bishop or bishops of any diocese or dioceses in the said colonies, or in any colony which Her Majesty shall, by Order in Council, declare to be joined to them for the purposes next hereinafter described, and the clergy and lay persons, being declared members of the Church of England, or being otherwise in communion with him or them respectively, to meet together from time to time, and at such meeting, by mutual consent, or by a majority of voices of the said clergy and laity, severally and respectively, with the assent of the said bishop or of a majority of the said bishops, if more than one, to make all such regulations as may be necessary for the better conduct of their ecclesiastical affairs, and for the holding of meetings for the said purpose thereof.
§ Clause brought up and read 1°.
§ MR. LABOUCHEREsaid, it was upon no small points of difference, still less upon any legal difficulty, that he should advise the House not to consent to the proposition of the right hon. Gentleman; but because he strongly objected to the very principle of that proposition. He entreated the House, before consenting to it, to consider what that principle was, and what were the consequences to which its assertion must necessarily lead. It was proposed to engraft upon this Bill an ecclesiastical system involving points of the greatest difficulty and importance, to establish a local legislature, independent alike of the Imperial Parliament and of the colonial legislatures. [Mr. GLADSTONE: I made no such proposal, I said expressly a private and voluntary compact.] He could not help thinking, after reading the clause, and hearing the speech of the right hon. Gentleman, that the body he sought to establish would be neither more nor less than a legislature for certain purposes, empowered to make ecclesiastical regulations which would have the force of law on 1208 all ecclesiastical subjects, irrespective alike of the will of Parliament or of the colonial legislature. So important was the principle involved in the establishment of such a body, that the House ought to pause, and weigh well the consequences before adopting it. Was the right hon. Gentleman prepared to say that the regulations which this synod or legislature might pass upon all matters necessary for the better conduct of ecclesiastical affairs, would not have the force of law, as far as members of the Church of England were concerned, and that those members would not be subject to such penalties?
§ MR. GLADSTONENo, not subject to penalties.
§ MR. LABOUCHEREEcclesiastical penalties?
§ Mr. GLADSTONEwas understood to answer in the negative.
§ MR. LABOUCHEREfeared that he had not very clearly understood the intention of the right hon. Gentleman. But what would be the effect of the measure, if it was to be entirely voluntary with the inhabitants of the colony whether they would comply with the regulations or not? Why did the right hon. Gentleman come down to propose and support an enactment which would be utterly futile and inoperative? Whatever his intentions, the effect would be to constitute an ecclesiastical synod in these colonies, with the power of making laws irrespective of the colonial legislatures of the Imperial Parliament, which laws would be obligatory upon the members of the Church of England within the colonies. A proposal so serious ought to be entertained as a separate measure, and gravely and deliberately considered, and not engrafted upon a Bill professing very different objects, and dealing with entirely different matters. As to the constitution of the proposed synod, the principle was acknowledged that laymen might be members; and the Crown was to have the power of rejecting or confirming its canons. He did not understand whether this synod was to consist of a single body—bishops, clergy, and laity, all sitting and discussing these questions together, or whether they were to be two or more bodies, the clergy sitting separately from the laity. If it was to be one assembly, composed of all the members of the Church of England, he, as a member of that Church, should very much object to questions of the kind proposed being discussed and decided by a tumultuary as- 1209 semblage of that description, and he should very much doubt whether that would tend to the welfare of the Church in the colonies. All these were questions of magnitude which ought not to be discussed in an incidental proposal to engraft a clause upon an Act with which it had no necessary connexion. His objection to the plan was a fundamental one; he objected to laws being made by any other body but the local legislatures or the Imperial Parliament; and he objected altogether to these laws or regulations being made by a body which was neither one nor the other, but an ecclesiastical synod composed on principles which he believed were altogether unknown in the history of Christendom; for he did not believe that such a synod had ever been heard or thought of before. The right hon. Gentleman said that, owing to legal difficulties, the Church of England laboured under great disadvantages in the Australian colonies. He deeply regretted that, and quite agreed with the right hon. Gentleman, that the position which the Church of England ought to hold in a British colony was—neither to be treated with exclusive favour, nor to be under any peculiar disadvantage. Such was the position most favourable to the Church's spiritual usefulness in the colony, and which would give her the best chance of being, as he trusted she would be, in every colony of the British empire, for many distant ages, the means of spiritual instruction and advantage to the great body of the community. He was satisfied that it was by placing her in that position that her energies would be best developed, and her native excellence the most likely to promote the great objects she had in view. But he was at a loss to understand how the Church, as at present circumstanced in these colonies, could be under any disadvantage which could not be easily and properly remedied by the operation of the colonial legislature themselves. If the Church of England was now treated with no peculiar favour in these colonies, why should she be an object of jealousy or suspicion—why should there be these great and insurmountable obstacles to the local legislatures applying a remedy to anything that was defective in the law as applicable to the Church? The right hon. Gentleman had quoted several instances; in some of these cases—Van Diemen's Land was one—Sir B. Wilmot had expressly recommended colonial legislation as the fitting and appropriate remedy for those griev- 1210 ances; and Lord Stanley, then Secretary for the Colonies, had adopted the same view in his despatch of the 29th December, 1844, which was found at page 52 of the returns the right hon. Gentleman had moved for. In that opinion he (Mr. Labouchere) entirely concurred. The policy of establishing ecclesiastical courts was matter of extreme doubt; and the grievances which affected the members of the Church of England might be remedied without them, by the action of the local legislatures themselves. He would not go into any nice points of law respecting the authority of our ecclesiastical system in the colonies. This part of the subject he would leave for his hon. Friend the Attorney General. He had been a little alarmed to hear from such an authority as the right hon. Gentleman the doctrine which he had propounded in an earlier part of the evening, when he had declared himself ready to vote for a clause for the good operation of which he could not answer, merely because he thought it a subject that required legislation. That would be a most dangerous principle for the House to adopt on matters of this importance. Unless the House was satisfied that the plan proposed would work usefully and efficiently for the purpose for which it was designed, they were bound to reject it, even though some remedy was required for the grievance pointed out. The proposal had more the appearance of heads of a measure, to be worked out in detail afterwards, than that of a complete scheme to effect the object desired. Many things in it were so obscure that it would be absolutely necessary to explain them by further provisions, and much of the machinery proposed needed explanation as to how it was to be put in operation. But his objections were less to the details than to the principle of the measure itself. To attempt to establish in these colonies a body of this kind, call it an ecclesiastical synod, or whatever they chose, with power to make regulations having the effect of law over members of the Church of England, so far from doing any good to the Church, increasing religious principles, of enlarging its sphere of usefulness in the colonies, would, on the contrary, excite the greatest disapprobation; the colonial legislatures would feel that subjects which properly belonged to them were withdrawn from their investigation and decision; and a tribunal would be established which would be fraught with inconvenience, and would 1211 give rise to injurious consequences to the Church itself.
MR. A. J. B. HOPEsaid, that in Australia the various religious bodies were on a footing of perfect equality, being all salaried by the State; and they all had or might have the power of self-government, with the sole exception of the Episcopal Church. If the right hon. Gentleman the President of the Board of Trade thought that the proposal to give to the Church of England, which numbered one-half of the population, the power to establish some system of self-government, would operate as a State grievance to the colony at large, why did he not consistently carry out that principle, and say that it was dangerous for the Church of Scotland to have its assemblies, the Wesleyan body its conferences, or the Church of Rome its synods, in Australia? [Mr. LABOUCHERE: These are voluntary bodies.] The Church of England was the same in the colonies. It used the same ritual and ordinances as the Church at home; but that no more made it the established Church in Australia than it was in Scotland, or any country where another church was established, than the Church of Rome was the established Church in Australia, because it was so in Italy. Either the argument of the right hon. Gentleman fell absolutely to the ground, or there was something obnoxious and detrimental in the Church of England which made it dangerous to the body politic—an assumption utterly impossible to be made by a member of the Church of England, in a country where it was the Established Church. Therefore, the main argument of the right hon. Gentleman resolved itself into that most convenient principle, the principle of "laissez faire." The right hon. Gentleman had opposed the introduction of this clause, because the Bill was one for conferring self-government on the colonies; but that was the very ground on which his (Mr. Hope's) right hon. Friend demanded that the Church of England, as a voluntary body, in New South Wales, should have the power of making its own regulations, and that it should not be interfered with any more than any other body, on the ground that it was not an Established Church. Of course his right hon. Friend had never dreamt of anything so wild as calling together a popular assemblage like those of Exeter Hall or Kennington Common to decide upon the affairs of the Church. His object in including the laity in the synod was to avoid the appearance 1212 of creating anything like a clerical domination. In answer to the question of the right hon. Gentleman the President of the Board of Trade, where was there any system of church government like the one proposed, it would be sufficient to state that in a church in full communion with the Church of England, using nearly the same prayer-book, and holding the same doctrines and the same form of ecclesiastical government—the Protestant Episcopal Church of America—there was just such an ecclesiastical legislature—a legislature composed of two houses; the upper house consisting of the bishops, the lower of the clergy and laity in certain proportions. Thus the general convention assembled every three years in one of the principal cities of the Union, while a similar legislature assembled annually in every diocese; and the system had been found to work very well. When the Government was propounding a constitution for Australia, it was hard that they should deny to the members of a religious body there the same power of organisation and self-government which had been found to work so well in the American Union. If this body trenched on the powers of the State, of course their acts would be repudiated; if not, why should the members of the Church be deprived of the right enjoyed by other religious bodies of making regulations for their own government? They would discharge this duty much better than the local legislature, composed as it would be of men of all religious sects.
§ MR. ANSTEYsaid, he wished to call the attention of the right hon. Gentleman the Member for the University of Oxford to a fact which he seemed to have overlooked. He appeared to be of opinion that the principle of religious equality had been wounded either by the measures of the local or the imperial legislatures; not in the matter of endowment, for that was equal, but in reference to matters of doctrine and discipline. He had cited the powers of the Churches of Scotland and of Rome to enforce their respective disciplines, and had stated that the Church of England possessed no such power—
§ MR. GLADSTONEWhat I said was, that each religious body had its own private laws, for its own regulation and government.
§ MR. ANSTEYsaid, the documents moved for by the right hon. Gentleman himself disclosed a very different state of 1213 things. In Van Diemen's Land, the bishop complained of obstruction, not from the laws of his Church, but from the want of a temporal law imposing penalties for infringing the laws of that Church; and the Bishop of Tasmania had called on the local legislature to remedy this evil, and to embody his suggestions in a local Act. This was opposed by the late Lieutenant Governor, in which his successor concurred; and thus had been prevented the removal of a great evil. The right hon. Gentleman was also mistaken in supposing that the other religious bodies had objected to the members of the Church being subject in matters of discipline to their own regulations; what they had done was to protest against the letters patent, conferring on the bishop what they deemed an unlawful jurisdiction, whereby their own rights would be invaded. These letters patent gave the bishop power to hold, not merely a spiritual court for the trial of spiritual offences, and the infliction of spiritual penalties; but a court possessing such powers as were exercised by our ecclesiastical courts at home; and of this attempt to set up such a jurisdiction the colonists had good reason to complain. The law officers of the colony had given their opinion that the letters patent had been improvidently issued, and that the Crown had no power to make the regulations therein contained. In matters pertaining exclusively to spiritual jurisdiction, the Church of England had the power, in common with every other church, to make such ordinances as its members might agree to: where was then the necessity for legislation on the subject? The Church of Scotland and the Church of Rome in the colony had the same power of legislating and judging; and when it was said that there was a danger, for want of this legislative power in the Church of England, of men being left to ecclesiastical anarchy, he would refer to the condition of the Church of Rome in the colony as a proof that no such danger existed. The Church of England had, from the ecclesiastical legislature, as well as from the temporal legislature, the power of deprivation and punishing by spiritual censures any minister who was guilty of what, by the laws and usages of the Church, was considered to be misconduct or neglect; and the laws of the land superadded to these censures the deprivation of the clergyman's freehold. Every appointment to a living was primâ facie a life appointment, that is to say, 1214 freehold. But what was the conduct of the Bishop of Tasmania with regard to the deprivation of the two clergymen which had been the cause of exciting so much ill-feeling in the colony? One of them, the Rev. Mr. Wigmore, was not appointed, under the Colonial Church Act at all. He did not officiate in any church dedicated to the Church of England. He never, in fact, had a licence; and it did not depend on the bishop, but on the Governor, to remove or retain him. But he was removed by the bishop, and he ceased to be a chaplain. With respect to the case of the Rev. Mr. Bateman, the bishop had the discretion offered to him of trying this clergyman according to the laws of England; but he preferred depriving him of his licence, and leaving him to officiate afterwards at the peril of his conscience. He (Mr. Anstey) would say nothing of the conduct of the bishop in trying to ensnare a man into the loss of his freehold by means of his conscience; but he denied that the colonial right of incumbency depended on the licence at all. It became vested by the appointment of the Governor of the party recommended or approved by the ecclesiastical superior. He objected to the proposed Amendment, because it interfered with the prerogative of the Crown—and because the Queen could issue letters patent to correct the evil; and if she exercised that power, she would do no more than was done by the Pope for the government of the Roman Catholic Church, or by the Church of Scotland for the Presbyterian Church. Meanwhile each Church had the power, by means of the temporal court of the colony, to restore, appoint, deprive, or displace any minister by mandamus, bill in equity, or injunction. If the Church of England obtained the power which the right hon. Gentleman proposed to give them, it would be considered an unfair privilege by the other religious bodies in the colony, and they would resent it. He should regret it much if the Church of England laboured under any inequality which the other churches were not exposed to; but he must protest against Parliament being called upon to give that Church a power which the Crown had already refused, and which, if given, would destroy that wholesome religious equality which prevailed in the colony at present under the wise provisions of the Colonial Church Act.
§ MR. W. P. WOODsaid, that with regard to any legal difficulties that might be 1215 supposed to exist, the right hon. Gentleman the President of the Board of Trade had promised them some illumination from Her Majesty's Attorney General; but, notwithstanding that promise, the hon. and learned Gentleman had not addressed them. In fact, nothing had been as yet said from which he could divine that there was any practical or legal objection to be found to the proposition. The right hon. Gentleman the President of the Board of Trade began by saying that he did not understand the clause. That was not the fault of the clause, which was very plain and intelligible. Neither did he think that it was the fault of the right hon. Gentleman's understanding; his understanding was perfectly clear, and he was quite competent, on reading the clause, to understand it; but persons did not like sometimes to understand a clause, or to give consideration to a clause; and he was sorry the Government did not consider this clause, for he was sure if they had considered, it they would have understood it. The clause was intelligible; it simply enacted that it should be lawful for all who professed a given communion to assemble together and pass rules and regulations for their own government, and which should bind no party but those who consented to be bound by them, or who belong to their communion. ["Hear, hear!"] He quite understood the meaning of that cheer; it was meant to intimate that the Church could do that already; but he would show how that was presently. It was proposed that they should decide how they were to be governed, and how they were to carry on their own ecclesiastical affairs. Was that an unnecessary power?—for that seemed to be the meaning of the cheer he had just heard. Other bodies could do so. There was no obstacle in the way of the Roman Catholics, or the Wesleyans, or those belonging to the Free Church of Scotland; but the Church of England was not in that position; she was unfortunately placed in that colony in an ambiguous position, the exact nature of which neither Her Majesty's Government, nor the Colonial Government, nor the Church itself, understood. It was perfectly clear she had no power for good; she had no means to carry out her own useful powers; but she was fettered by a variety of impediments, which could be raised by persons skilled in suggesting legal quibbles, when she attempted to do anything useful. It was desirable that she should be placed in that 1216 perfect freedom which was enjoyed by other sects in that country, and which the Church in this country was deprived of, because she was established by law; but in the colony she was not established. She was on an equality with the other sects in the colony. A grand and noble opportunity for usefulness bad been opened for the Church there, which unfortunately here she did not possess. She had the opportunity of showing what she was when placed in free competition with any other religious body whatever. Let them leave her to the full exercise of that privilege, and why should the Government be afraid of leaving her to it? He assumed that every sectarian believed his views to be as correct as he (Mr. Wood) considered the views of the Church of England to be, and he was willing to enter into a contest with them. It would be a holy contest, not one of violence or intemperance, or one into which any party would enter with a prejudice against the other excited by temporalities. The question between them would be which Church was better able to preach the truth, or to humanise or civilise all those who came within her beneficent control, or to convey spiritual comfort to man at that moment when he stands most in need of it? That should be the contest, and why might they not enter into it? They were told by the right hon. Gentleman the President of the Board of Trade, that he, as a member of the Church of England, objected to the Amendment, wholly independent of political motives, because there was no precedent for it. The whole early history of the Church showed nothing else; and the English Church in America was so conducted. What danger had resulted from that? Had the State suffered by it—had there been any tyranny exercised on the part of the American Church, or had there been any complaints on the part of rival sects? They there carry on their work with a yearly increase of numbers, and that was done by the Church being allowed to work out by her own energies that full development which he wished to see worked out in the English Church in the colonies and throughout the world. The right hon. Gentleman further told them, that if the Church wanted any power in the colonies, it could be given to her by the local government. That was an extraordinary proposition. Here was a Church that had not the power of controlling her own members, and the way proposed to give it was 1217 by making her apply to a body the majority of whom might be totally adverse to her. Surely it was not right that the Church should hare to apply to a body of that description for power to carry out her own ecclesiastical ordinances, and nothing else. The parties were originally to meet according to this proposition, and settle what the orders and regulations were to be, and when they determined that question, they should not afterwards object to them. Why were they able to carry on the Government so calmly in this country, but because Englishmen had always submitted to be governed by the majority; and was it a hardship to ask members of the Church of England in the colonies to obey the rules settled by a majority of themselves? The ground upon which he supported this Bill was that it gave to the colonies the power of legislating for themselves. The Government said they admitted it was not a complete measure—that it was an inchoate measure not fully developed; and yet when the right hon. Gentleman by his Amendment came forward and asked them to do the same thing with respect to the Church, and said, give to the Church in the colonies an inchoate power that will lead to the development of its full power over its members, they object to it. They were next addressed by the hon. and learned Gentleman the Member for Youghal; but they were not addressed by the hon. and learned Gentleman the Attorney General, though they had been promised from him, by the right hon. Gentleman the President of the Board of Trade, an explanation of the legal difficulties of the case. There were public considerations in favour of this measure independently of the sense of justice. There were considerations which entitled him to call on the Members of the House who were not members of the Church of England to assist him in carrying this proposition. He asked every dissenting Member of the House, whether Roman Catholic, Dissenter, or Presbyterian, to concur in giving the same powers as they possessed themselves to the members of the Church of England, when they were standing exactly in the same position as they were. On a higher ground he asked Her Majesty's Government to consider well what was the great danger that was threatening the social system throughout Europe. Did not the danger arise from an entire indifference to every religious creed, and the adoption of a system of infidelity? That infidelity was the result of ignorance, 1218 which prevented a man from seeing what really were his true interests, either here or hereafter. Thousands and thousands of convicts had been despatched to these colonies before any care was taken for their spiritual welfare; and was the Government disposed to take the first step in preventing that amount of education and instruction which was offered by the Church, or did they think that by giving the Church increased means of efficiency they would help to bring about the same evils which afflicted the temporal power in the time of Hildebrand? There appeared on the part of the Government an evident distrust of the Church; and this feeling was evinced in various ways, but in none perhaps more than in the appointment of prelates, for it was well known that the prelates were chosen not so much on account of their great ability as of their quietness. He had no fear for the Church, but he had every fear for that State which would not do its utmost in every point of view, not to favour any particular church, but which would not sincerely and heartily desire to promote every measure which had for its plain straightforward object the development of religious truth, and the preparing for the millions who were about to be called into existence in the colony, those blessings which would conduce to their happiness while spared upon earth, and would be productive of everlasting happiness hereafter.
§ MR. ROEBUCKsaid, the proposition, under an appearance somewhat mysterious, was really an important one. They had to deal with what the proposition called the United Churches of England and Ireland in the colonies. Every person understood what was meant by the United Church of England and Ireland. It was subject to certain laws, and enjoyed certain high privileges and powers in this country. But there was a party in the country who wished to deal with that Church in a way that they (the House) would not permit. What did that party wish? They wished to have a church, called the United Church of England and Ireland, and to have that church above the law. They wished to have a convocation sitting by the side of Parliament. They had put that down heretofore, and they did not intend it should ever be revived, even by a side wind in the colonies. They were not to be mystified out of their common senses in reference to the proposition before them; and as regarded that proposition, he 1219 asked, did any man in his common senses expect that it should be attended to, and that a convocation should be there sitting by the side of the British Parliament? But he believed there were men so infatuated, so thoroughly demented on church matters, that they wished such a thing possible. Now, what were their reasons? He believed they were two in number. [Here the hon. and learned Member read the Resolutions.] The Church of England, the Church of this country, was expressly mentioned—"being members of the Church of England." But the right hon. Gentleman declared his proposal had nothing to do with the Church of this country. He said he wanted a separate communion—in fact, he was an Independent. He wished to create an independent church to carry out his views. The clergy and laity were to meet together, and a majority of voices was to decide. Well, but suppose only two were present, one on each side could not constitute a majority. But suppose they met together in proper numbers, if the bishop did not accede to their proposition, it was no proposition; if he did, then the proposition would be wholly at variance with Church of England doctrine. Now, he asked hon. Gentlemen to say whether they intended by this course to elevate their new church to the position enjoyed by members of the dissenting communities? Indeed, he had been told by one hon. Gentleman that he would be content to be placed on a similar footing with the Jumpers. Yes, that had been told him in that House. Was it so? Were the members of the United Church of England and Ireland in the colony of Van Diemen's Land willing to divest themselves of all the characteristics of the members of that Church, and to place themselves on an equality with the Jumpers? [Mr. P. WOOD: Yes.] Oh, the hon. and learned Member for Oxford cried "Yes." Now, let him see how matters stood. First, they would have to strike out the name "United Church of England and Ireland." Then they became persons professing anything they pleased, and, consequently, could not be regarded as being of that United Church. They should be regarded simply as a body of Dissenters meeting together for certain religious purposes; and, therefore, he was at a loss to know why Parliament should enact anything at all in reference to them. They were going to create a legislature which should have power over weaker 1220 sects. The only body of churchmen with whom they could have sympathy was that body recognised by the United Churches of England and Ireland. Let them once establish that which the resolutions of the right hon. Gentleman sought, and there would be an end of their United Churches of England and Ireland, whilst there would also be a speedy attainment of the separation of Church and State. He found the High Church party—those who were supereminently and peculiarly the Church party, who carried on a warfare in reference to certain fantastic ceremonies—all of a sudden coming forward and crying out for a state of mediæval excellence. Yet, what was their idea of it? Why, they appealed to America; but what did they find there? No church establishment whatever. An equal toleration of and freedom to all sects. No power delegated by the State; and no money voted by the State, which was a very peculiar and important feature in the matter. He wished to ask the House if they were prepared to deal in such a manner with the colonies? Were they prepared to deal similarly with England, as also with those who might emigrate into the wilds of Australia? If such were befitting them, and were the true and correct idea of an establishment, why should it not be so in England? He objected to the Church Establishment in alliance with the State. He wanted to see a separation of them; and when bringing forward his Motion to that effect as regarded Ireland, as he should do on the 28th instant, he would not fail to quote the case then before the House, and he hoped to have the support of the hon. Gentlemen who supported the present resolutions. [An Hon. MEMBER: HOW will it be framed?] He would undertake his Motion should be so unlike that of the right hon. Gentleman, that it, at least, would have the merit of being intelligible to every person. He called on the Gentlemen who then surrounded him to read over the proposition of the right hon. Gentleman, to direct their minds most closely to its investigation—indeed, he had gone through it word by word, and had puzzled his brain to such a state of bewilderment, the words going round and round, that he could not make sense or meaning of them—and then to say if it were at all intelligible to them? He asked any hon. Member if the proposition of the hon. Gentleman was within the scope of English churchship, or in the spirit and character of the English Church? 1221 What was the ecclesiastical revenue of Van Diemen's Land? They would find it in the Miscellaneous Estimates when they came to the bishop's pay.
§ MR. GLADSTONEIt is not so.
§ MR. ROEBUCKDid the right hon. Gentleman say—was he prepared to say—Let us have no bishop?
§ MR. GLADSTONEI say there is no such vote in the estimates.
§ MR. ROEBUCKIt is surely in the estimates.
§ MR. GLADSTONENo.
§ MR. ROEBUCKThere are Ecclesiastical Estimates for all our colonies.
§ MR. GLADSTONEIt is not so.
§ MR. ROEBUCKThen we will pass that by. [Loud ironical cheering.] When he came to consider those estimates, he would point it out, and show the value of that cheer. There was an estimate, and before many days they would find there were estimates for all the colonial bishoprics. He had fought the question too often in that House not to know there were constant yearly payments for the purposes of the Church of England; and he could not understand why a branch of that Church should be made separate and independent of the United Churches of England and Ireland, yet deriving support from that House, which it ought not, as an independent community, though connected in name and characteristics with the English Church. He denied that name and character; and if asked what he believed the community to be, he would reply, an independent community of religionists; and hence there was no necessity for a proviso. First, as an independent body, they needed not the support, by proposition, of that House; and next, because, like the Jumpers, they wished to be affected by similar legislation. How was the colony of Van Diemen's Land to deal with that body? He had been told there were three religious bodies recognised, the Church of Rome, the Church of England, and the Church of Scotland; but the present sect did not come under either religious category. However, there were of the sect certain fantastic religionists who wished to be considered something peculiar in themselves, who aspired to the characteristics of an ancient community, whilst, at the same time, claiming all the liberty of the most modern religious community. But he could tell them they would be one thing or the other. They belonged to the Church of England, or they did not. 1222 If they belonged to the Church of England, they should submit to its ordinances. If not, let them call themselves Dissenters, and he would be the first to demand protection, freedom, and liberty for them, and to help them to anything else they might like, however ridiculous. But they should not ask the State to sanction or to assist them. He would not give the sanction of his name, or the power or character of England, to the justification of such pranks before the community at large; and he doubted not they would never obtain the sanction of that House to any such proceedings.
§ MR. ROUNDELL PALMERsaid, he was afraid, from the speech they had just heard, and from other symptoms which unfortunately no one could help perceiving, that we were approaching times in which the principle on which an Established Church was maintained, would be discussed under far different circumstances from those to which they had hitherto been accustomed, and under which all who were friendly to the Church, to the monarchy, or to the English constitution, would ever wish to hear it discussed. There were men—and he believed he was doing no wrong to the hon. and learned Gentleman if he inferred from his speech that he was one of the number—there were men who were unfriendly to the principle of an Established Church, who did not think it beneficial to the great interests of the country, and who rejoiced at everything that tended to impair its efficiency or to retard its progress. But he did not believe that that was a principle upon which either the House or Her Majesty's Government—to whose sincere desire to promote the best interests of the Church, according to their own view of those interests, he, though entertaining very different views, was ready to bear his testimony—he did not believe that was the principle on which they would oppose the clause then under the consideration of the House. The only principle upon which an Established Church could ever exist in any country, the only principle on which it was defensible, was, that it was the embodiment of the religion believed by the mass of the people. The power which it possessed over the minds of the people was originally derived—not from their laws or establishment, but from its intrinsic truth, and its influence over the consciences of men. The Establishment was upheld by the belief of the people, and not the belief of the people by the Establishment. Therefore, 1223 in legislating with regard to it, it had always been the practice to consider what would be calculated to promote the efficiency of the Church, the extension of its principles, and to remedy the evils which might arise within it, without wishing to interfere with the freedom of other men's convictions. They would vindicate for others the same liberty of conscience which they desired for themselves; but they could not permanently maintain the Church upon any principle inconsistent with paying the same respect to liberty of conscience and belief in Churchmen, which they always extended to every community of Dissenters. The principle enunciated by the hon. and learned Member for Sheffield was a tyrannical principle. According to his principle they would first make the Church their help in the great work of government, and then turn round on it and say, "We will make use of the connexion, because it is useful to us in maintaining the foundations of society, not for the purpose of extending its efficiency according to its own principles, but for the sake of cramping its efficiency and preventing its extension; taking care that it shall not accommodate itself to the changing circumstances and wants of mankind, as other religious communities are able to do. The Church shall have no such power, but shall be kept in that state in which it has remained for the last 200 years." It was idle to say that Parliament could make the requisite changes. To leave it to Parliament was to say they should not be made at all. Would the House endure debates on questions of a purely spiritual character? It would be impossible, even if they all belonged to the same religious community; besides, they were not returned for such a purpose. It came to this, were they to accede to the principle of the right hon. Gentleman's Motion, it being impossible for Parliament to deal with the subject; or would they assert that nothing should be done, and that the Church should remain precisely in the same attitude in which it had stood for centuries past? If there was any one thing which caused the increase of that ignorance and vice now unhappily prevailing to too great an extent among the dense populations throughout the country, it was the want of provision for the spiritual wants of the people. The hon. and learned Member for Sheffield had spoken of the present Motion as though it were something new in principle. He denied that. Every one knew that it was as 1224 much a part of the constitutional law of this country that the spiritual wants and necessities of the people should be considered by the bishops and clergy in convocation, as that their political wants and necessities should be considered by that House. Every change in the doctrinal statements and spiritual discipline of the Church at the time of and since the Reformation had been made by the convocation, on whose resolutions the Parliament acted. In the statutes passed in the reign of Henry VIII., defining the constitution and the Royal prerogative in matters ecclesiastical, it was distinctly laid down that the constitution of England had always consisted of a temporal and spiritual element, and that the latter was represented in convocation. When the Prayer Book was last revised, in the reign of Charles II., that monarch stated in the preface, which any one might see who would take up his Prayer Book, that, as often as it should be necessary to consider and debate matters affecting the spiritual welfare of the Church of England, the convocation should be consulted. That principle was in active operation down to the time of George I., and they all knew under what circumstances it was stopped. The Minister of the day appointed a man to be a bishop who did not hold the doctrines of the Church, for Bishop Hoadley belonged to the class of Unitarians. The convocation took up the matter, and the Crown suspended its sittings; and from that time to the present, the Crown had, by suspending the sittings of the convocation, in principle done the same thing as King Charles I. attempted to do when he prevented Parliament meeting from time to time for the despatch of business. The constitutional law, however, remained the same, and the convocation possessed the same functions as ever; and the only reason why no Motion was made for its restoration was, because it was a body imperfectly and unsatisfactorily constituted, and did not now furnish a true representation of the Church of England. What was desired was a practical bonâ fide representation of the feelings of the Church. Was it a matter of no practical importance, that whilst the power of self-legislation had been suspended in the Church, they had seen the founders of the great Wesleyan body, men impelled by the purest motives, and the most admirable zeal and piety, breaking off from the Establishment? Was it nothing that they had seen the continual growth of 1225 Dissenters from the Church, and dissensions within the Church, which might easily have been checked had proper steps been taken in time? and a persistance in the same course could not fail to result in ever-increasing divisions. The end—if they persevered in the same policy, even at home—would be that they would see the Church fall to pieces; and the enemies of the Establishment, being no longer opposed by the united force of its friends, would inevitably prevail, simply because they refused to allow the Church sufficient internal power and energy to develop itself in the natural way. With respect to the colonies, the case was much stronger, because the circumstances were different. Take New Zealand and India, for instance, where they had to deal with a large heathen population. They had their liturgies, articles, and canons, all constructed with reference to a nation already Christian. To say that there should be no authority capable of determining on the mode of operations necessary with reference to the circumstances of settlers and new converts in a heathen country, was, in substance, to refuse that liberty and natural development which was enjoyed by Roman Catholics, Presbyterians, and every sort of Protestant dissenters. Was it impossible that the Established Church should have the same power, and yet be useful to the State? Look at the Established Church in Scotland. It might be said that there, too, a secession had taken place. Granted. But that was due, principally, to a disregard by the State of the religious opinion of the Church, and a desire to carry a temporal law too far and beyond its province, and without any sufficient necessity; and when they wished to retrace their steps it was too late. They did, however, retrace their steps. They came down to the House and proposed a law that if any reasonable cause could be shown against it, the nominee of the patron should not have the benefice. Had that been done at the time, a great evil might have been averted. But they had not taken away the power of self-legislation from the Scotch Church because of the secession. Upon all these grounds he had no hesitation in saying that he would vote for the Motion of his right hon. Friend the Member for the University of Oxford, not merely because he conceived what he proposed to be necessary for the Australian colonies—not only because he thought it desirable that the colonial Church should do the work for which 1226 it was intended—but also because he believed, though circumstances had induced them to impose arbitrary restrictions on the Church of England through a long series of years, and though the imperfect constitution of that convocation might make it inconvenient to restore it, that before long some such tribunal must be provided, even for the Church at home.
§ SIR G. GREYhad not anticipated, after the speech which the right hon. Gentleman the Member for the University of Oxford had made, that the consideration of his clauses would have involved the House in the wide and important questions connected with the relation of the Established Church to the State. He would only say, therefore, on this subject, that he differed with the hon. and learned Member for Sheffield in the wish which he had expressed to see a disunion of the Church and State. Anxious, however, as he was to see the Church an instrument of increasing usefulness to all classes of the community, he could not help expressing his deep regret that steps had been taken by some members of the Church which had led to proceedings tending to exhibit the Church in a state of disunion and distraction, thereby impairing its efficiency and diminishing its usefulness. He had thought that the House would not be led into this discussion, because the right hon. Gentleman had based his Motion on the fact that there was no Established Church in the colonies. The right hon. Gentleman said, that he wished the Church of England to be placed on a footing of perfect equality with other communions. But if he understood the right hon. Gentleman aright, he appeared to be asking on the behalf of the Church of England powers and advantages which other communions would not enjoy. He asked for the bishops, the clergy, and the laity of that Church, that power should be given to them by Parliament to form themselves into a convocation, which should make regulations having the force of law, and binding on members of that communion, not only in foro conscientiœ, but also in the law courts of the colony. That he took to be his meaning, not only from the clauses themselves which he had proposed, but from the provisions which followed them. One of these provided that it should not be lawful to impose or inflict, by any such regulation, any temporal or pecuniary penalty or disability, other than such as might attach to the avoidance of any office or bene- 1227 fice held in the said Church. Now, that distinctly implied that those regulations were to have the force of law in the colonies in respect of the penalties or disabilities attaching to the breach of them. Again, it was provided that no such regulation should be binding on any person or persons other than the said bishop or bishops, and the clergy and the lay persons who were, or might be, declared members of the Church of England, or otherwise in communion with him or them respectively. By excluding "other persons" from being bound by such regulations, did not the right hon. Gentleman subject to them those who were expressly named? He would not go through all the provisions, but by one of them it was declared that it should not be competent to the said bishops, clergy, and lay persons, or any of them, to pass any regulation affecting the rights of the Crown in the nomination of bishops; implying that the prerogatives of the Crown might be interfered with, except in the case specifically excepted. It was provided also that any such regulation, touching the existing relation of the said bishops, clergy, and others, to the metropolitan see of Canterbury, should be forthwith transmitted by the bishop, or his deputy, to the Archbishop, and should be subject to disallowance by him under his hand and seal, at any time within twelve months from the passing of the regulation, or within six months from the receipt thereof by the Archbishop. More extensive legislative powers could hardly he given, and therefore he was rather surprised at the right hon. Gentleman's disclaimer of any intention to give this body legislative authority. If there were any difficulties in the way of enforcing the ecclesiastical authority of the Church in the colonies, the colonial legislature, as Lord Stanley had said, in the despatch already referred to, was the body to which the Church should apply, and a colonial Act might be obtained, declaring the conditions on which the Governor should withhold the salary of any clergyman convicted of an offence. His hon. and learned Friend the Member for Oxford had said, that the majority of the colonial legislature might be composed of persons who were not in communion with the Church of England; and yet the right hon. Gentleman was now coming to the House of Commons for these powers, though many of the Members were not members of that church. He had not been convinced by anything that had been said, that members of the Church of Eng- 1228 land in Van Diemen's Land or New Zealand, laboured under any disability as compared with any other religious denomination. If the bishop chose to summon the clergy and laity, and they met, they might make voluntary arrangements, which would be binding over themselves inter se, but they would not have the force of law. If, however, legislative powers were granted to members of the Church of England, they ought to be given to other communions, which stood in the colonies on a footing of perfect equality with the members of the Church of England. He thought, therefore, that these clauses contained dangerous powers, if they were to be given exclusively to the Church of England; while, if they only pointed to voluntary arrangements, the right hon. Gentleman was invoking the aid of Parliament to do for the members of the Church what they might do for themselves. If they laboured under any disability, let that disability be removed by an act of the local legislature; but let them not ask for peculiar privileges which might tend to foment discontent.
§ MR. ADDERLEYsaid, the right hon. Baronet had challenged them to name any disability under which the Established Church laboured. The disability was, that the Church could not meet together to pass by-laws, like any other corporation, under the penalties of prœmunire. The whole object of his right hon. Friend's Motion was simply that the members of the Church might be able to meet and pass by-laws, without licences from the Crown. That was the disability, and if they were prepared to remove that, he asked no more. But he contended that it was a disability, and that not an argument had been urged in its defence. The right hon. Gentleman the Home Secretary seemed to think that some mysterious power was being asked for by the Church of England, as if it were proposed by the right hon. Member for the University to make a sort of imperium in imperio of the Church—as if it were to have extensive powers of legislation conferred upon it that would bind every man, woman, and child, and enable it even to impose penalties. But nothing of the sort was proposed. And, with regard to the provisoes, his right hon. Friend had stated his willingness to postpone them, in order to give the Government an opportunity of deciding upon some means of relieving the Church from the disability of which it now complained. His right hon. Friend had moved, and he (Mr. Ad- 1229 derley) took the proposition, and should vote upon it simply as it stood, that it should be lawful for the bishops and officers of the Church of England to meet together without incurring penalties. The hon. and learned Member for Sheffield appeared to think, which he (Mr. Adderley) had never heard of before, that it was essential to the character of the Church of England to be connected with the State. This was the hon. and learned Gentleman's whole and sole argument—that whereas the Church of England was connected with the State in this country, therefore it should be connected with the State in the colonies; that it should be put on a footing of equality with the Jumpers. He did not know exactly what the hon. and learned Gentleman meant by that; but the position of the Church in the colonies was, that whereas it was not fairly connected with the State there, in England it was connected with the State; that in the colonies it was only partially connected with the State, and that the connection was such that it had all the disability and none of the advantages. That was the simple position of the Church in the colonies. It was just so far connected with the State as to be unable to act for itself, without a single privilege being given in return for that disability; and it only asked that it should be placed upon the same footing as other religious denominations, and have the power of making by-laws for itself in the same manner as any common corporation in this country, and no more.
§ MR. HUMEwished to relieve the minds of hon. Members, who seemed to be alarmed for the position in which members of the Church of England were likely to be placed in the colonies. He took it for granted that no court would be found in the colonies which would enforce the penalties of prœmunire on any ground of the kind supposed. He had refused to vote with the hon. Baronet the Member for Southwark for a double chamber, because he thought it would be more conducive to the peace and prosperity of the colonies to leave that question for their own decision. Would it be consistent in him, then, to vote for the present Motion, which he believed would sow the seeds of religious dissension in the colonies, when he had refused to vote for a Motion which he believed would create political disunion merely? If there was anything more important than another to keep out of the colonies, it was religious discord.
The ATTORNEY GENERALsaid, that if he had believed that by opposing the proposed clause, he would in any degree impair the efficiency of the Church of England in the colonies, it certainly should not have met with his opposition. But he believed that it would very much impair its efficiency, and therefore he could not agree to it. As he understood, the objection of the right hon. Gentleman the Member for the University of Oxford, to the present state of things in the colonies was, that the Church of England had not a church government to refer to—that they had no ecclesiastical courts to control and direct them. Now, it was true that upon the first institution of the bishops to the colonies, it was intended to give the Church of England there such courts; but, upon further consideration, it was found that the Crown had not the power, and consequently the intention was abandoned. But he apprehended that it was by no means necessary to the efficiency of the Church in the colonies that it should have ecclesiastical courts, with power to pass ecclesiastical censures and the other various modes of government established in this kingdom. It seemed quite enough that the Church should be put upon a footing of equality with other persuasions with regard to the management of its own internal affairs. Did he understand the hon. Gentleman the Member for North Staffordshire to say, that his only reason for asking the House to adopt the present resolution was, that it would enable the Church to meet without incurring the penalties of prœmunire? If so, the Motion was quite unnecessary, because the statute of prœmunire was a territorial enactment, and was not applicable to the colonies at all. If the members of the Church of England were to be placed on a footing of equality with other persuasions in the colonies, let them do as other persuasions did—let them establish mutual regulations amongst themselves for their own government. The principle of the Bill was to give the power of local self-government to the people of the colonies. The adoption of this Motion would establish an exception to that principle, by giving legislative authority to another body to pass particular laws. But in order to see the danger of the proposition, he begged the House to turn to the terms of it, and they would find that it not merely proposed that clergy and laity should meet upon one occasion to establish a system of government for the conduct of their ecclesiastical af- 1231 fairs, but that it should be lawful for them "to meet together from time to time" to regulate their affairs, and that when met that they should have power to make provision for meeting thereafter. He believed that the powers given by this clause would enable the members of the Church to do anything and everything "for the better conduct of their ecclesiastical affairs," except (as appeared from the provisoes) to inflict a pecuniary penalty. He believed that it would not only introduce a most dangerous principle into the colonies, but that it would create a dangerous precedent for that House; because, if they adopted this clause, and gave the clergy of the colonies the power of assembling and regulating the conduct of their ecclesiastical affairs, why withhold a similar power from the clergy of the Church in this country? The answer of the right hon. Gentleman to the suggestion that the matter might be left to the colonial legislatures, namely, that those legislatures were not likely to be exclusively composed of Churchmen, was, to his mind, decisive of the question; because, if they could not trust the legislatures of the colonies to make the necessary enactments on this subject, because they knew they would not give the preeminence to one sect over another, were they not taking away the whole merit of the Act, by depriving these bodies of the power of local self-government? He opposed the clause, therefore, because it was contrary to precedent, because it was unjustifiable in itself, and because it would introduce dissensions and heartburnings into the colonies.
§ MR. WALPOLEthought that the object of the clause had been misunderstood by the Government and the House. It was an error to suppose that it was to create a convocation, or to give supremacy to the Church of England in the colonies. If the clause could have any such operation, there was no man in that House who would resist it more strenuously than himself; but he was prepared to give it his most cordial support, because he believed that the only effect that was hoped or intended to result from it was, that the members of the Church of England should be placed on terms of perfect equality with all other classes of religionists in having the power to manage their own affairs. The hon. and learned Gentleman the Attorney General and all other hon. Members who were prepared to take the same course with respect to the present Motion, were fully aware 1232 that the Church of England did not at present enjoy that privilege; for, by a statute of Henry VIII., it was enacted that any members of the Church of England meeting together for the purpose of making arrangements or regulations among themselves in spiritual matters, were subject to fine or imprisonment. All the clergy in the colonies belonged to the province of Canterbury, and would have to submit to the same laws and ordinances as the clergy who were attached to that diocese and resident in England. A colony carried with it the laws of the Church and the Church itself, and it could not move or have free action in spiritual matters except in compliance with those laws. Therefore if a clergyman in the colonies should think fit to disobey the orders of his spiritual head, no means could be taken to reduce him to obedience, except by the tedious and circuitous process of an appeal to the ecclesiastical authorities in this country. Such a state of things was attended with great inconvenience, and an instance of its mischievous operation had recently occurred in Van Diemen's Land, where the bishop could not interfere to reduce to obedience a clergyman who refused to permit lectures or sermons to be given in his church on week days. The object of the clause under discussion was nothing more or less than to enable the clergy to meet and agree to make such arrangements among themselves as might conduce to good order in the Church—arrangements which might be put in force by the civil courts in the colony, in the same way as the arrangements of any other religious body in this country might be enforced. Why should not the Church in the colonies have the same free action as any other religious body? All it required was equality; and if equality were not granted, the refusal would remind him of those days in the history of our country when there was toleration for everybody except the members of the Church of England, who were refused free permission to use either in public or in private the prayers of that Church.
§ MR. GLADSTONEwas aware that at this stage of the measure he was not entitled by the laws of debate to the privilege of reply, but he would take the liberty of trespassing for a single moment on the attention of the House, while he endeavoured to remove a misrepresentation which seemed to have led astray the judgments of several hon. Members. All that he de- 1233 signed by the clause in question was to give to the Church of England in the Australian colonies the very same power, neither more nor less, and the same means of enforcing it, which were at the present moment possessed and exercised by every other religious body in the colonies. If the language of the clause did not accurately convey that meaning, he would willingly submit to any limitation or phraseology which would insure his getting nothing more than he had described. Nay, more, if he could obtain a pledge from the Government, that, with the means of inquiry which they had at their command, they would examine into the question, ascertain the true state of the law, and guarantee that the Church of England should be placed on terms of absolute equality with all other churches, he would willingly consent to withdraw the clause. But, in the absence of such an assurance, he was persuaded that the objections which were urged against the clause were nothing better than unworthy expedients for getting rid of it, and avoiding justice.
§ Motion made, and Question put, "That the said Clause be now read a Second Time."
§ The House divided: Ayes 102; Noes 187: Majority 85.
| List of the AYES. | |
| Adair, H. E. | Currie, H. |
| Archdall, Capt. M. | Damer, hon. Col. |
| Bailey, J. | Disraeli, B. |
| Baldock, E. H. | Drumlanrig, Visct. |
| Bankes, G. | Drummond, H. H. |
| Baring, hon. F. | Duncuft, J. |
| Bateson, T. | Dundas, G. |
| Beckett, W. | East, Sir J. B. |
| Bennet, P. | Edwards, H. |
| Bentinck, Lord H. | Evelyn, W. J. |
| Beresford, W. | Farrer, J. |
| Bernard, Visct. | Fellowes, E. |
| Best, J. | Filmer, Sir E. |
| Blair, S. | Floyer, J. |
| Blandford, Marq. of | Forbes, W. |
| Boldero, H. G. | Fox, S. W. L. |
| Booth, Sir R. G. | Gladstone, rt. hon. W. E. |
| Boyd, J. | Greenall, G. |
| Bramston, T. W. | Grogan, E. |
| Bremridge, R. | Gwyn, H. |
| Brisco, M. | Hale, R. B. |
| Brockman, E. D. | Hamilton, G. A. |
| Brooke, Lord | Hamilton, Lord C. |
| Buller, Sir J. Y. | Harris, hon. Capt. |
| Campbell, hon. W. F. | Heneage, G. H. W. |
| Carew, W. H. P. | Herbert, rt. hon. S. |
| Chatterton, Col. | Hervey, Lord A. |
| Cobbold, J. C. | Hildyard, R. C. |
| Cocks, T. S. | Hodgson, W. |
| Codrington, Sir W. | Hope, A. |
| Colvile, C. R. | Hudson, G. |
| Conolly, T. | Hughes, W. B. |
| Corry, rt. hon. H. L. | Jocelyn, Visct. |
| Johnstone, Sir J. | Stanley, E. |
| Lookhart, W. | Stuart, H. |
| Lowther, hon. Col. | Stuart, J. |
| Manners, Lord J. | Taylor, T. E. |
| Miles, W. | Thesiger, Sir F. |
| Molesworth, Sir W. | Tollemache, J. |
| Mullings, J. R. | Trevor, hon. G. R. |
| Mundy, W. | Verner, Sir W. |
| Naas, Lord | Villiers, Visct. |
| Patten, J. W. | Vyse, R. H. R. H. |
| Plowden, W. H. C. | Walpole, S. H. |
| Rushout, Capt. | Wellesley, Lord C. |
| Sandars, J. | Williams, T. P. |
| Scholefield, W. | Willoughby, Sir H. |
| Scott, hon. F. | Wood, W. P. |
| Seymer, H. K. | Young, Sir J. |
| Simeon, J. | |
| Sotheron, T. H. S. | TELLERS. |
| Stafford, A. | Adderley, C. B. |
| Stanford, J. F. | Palmer, R. |
| List of the NOES. | |
| Adair, R. A. S. | Dunne, Col. |
| Anstey, T. C. | Ebrington, Visct. |
| Armstrong, Sir A. | Ellis, J. |
| Armstrong, R. B. | Elliot, hon. J. E. |
| Bagshaw, J. | Estcourt, J. B. B. |
| Baines, rt. hon. M. T. | Fergus, J. |
| Baring, rt. hon. Sir F. T. | FitzPatrick, rt. hon. J. W. |
| Barnard, E. G. | Fordyce, A. D. |
| Bass, M. T. | Forster, M. |
| Bellew, R. M. | Freestun, Col. |
| Berkeley, Adm. | Gibson, rt. hon. T. M. |
| Berkeley, hon. H. F. | Goddard, A. L. |
| Berkeley, C. L. G. | Grace, O. D. J. |
| Bernal, R. | Greene, J. |
| Birch, Sir T. B. | Grenfell, C. P. |
| Blackall, S. W. | Grenfell, C. W. |
| Blake, M. J. | Grey, rt. hon. Sir G. |
| Bouverie, hon. E. P. | Grosvenor, Lord R. |
| Boyle, hon. Col. | Hall, Sir B. |
| Bright, J. | Hallyburton, Lord J. F. |
| Brocklehurst, J. | Hanmer, Sir J. |
| Brotherton, J. | Hardcastle, J. A. |
| Browne, R. D. | Harris, R. |
| Bulkeley, Sir R. B. W. | Hastie, A. |
| Burke, Sir T. J. | Hastie, A. |
| Carter, J. B. | Hatchell, J. |
| Caulfeild, J. M. | Hawes, B. |
| Clay, J. | Hayter, rt. hon. W. G. |
| Cobden, B. | Headlam, T. E. |
| Cockburn, A. J. E. | Heathcoat, J. |
| Collins, W. | Henry, A. |
| Corbally, M. E. | Heywood, J. |
| Cowan, C. | Heyworth, L. |
| Cowper, hon. W. F. | Hobhouse, rt. hon. Sir J. |
| Craig, Sir W. G. | Hobhouse, T. B. |
| Crawford, W. S. | Hodges, T. L. |
| Crowder, R. B. | Hollond, R. |
| Curteis, H. M. | Howard, Lord E. |
| Dalrymple, Capt. | Howard, hon. J. K. |
| Dawson, hon. T. V. | Howard, hon. E. G. G. |
| D'Eyncourt, rt. hon. C. T. | Howard, P. H. |
| Divett, E. | Howard, Sir R. |
| Douglas, Sir C. E. | Hume, J. |
| Duff, G. S. | Humphery, Ald. |
| Duff, J. | Jervis, Sir J. |
| Duke, Sir J. | Keating, R. |
| Duncan, Visct. | Kershaw, J. |
| Duncan, G. | Kildare, Marq. of |
| Dundas, Adm. | Labouchere, rt. hon. H. |
| Dundas, rt. hon. Sir D. | Lascelles, hon. W. S. |
| Lemon, Sir C. | Romilly, Col. |
| Lewis, G. C. | Romilly, Sir J. |
| Lindsay, hon. Col. | Rumbold, C. E. |
| Littleton, hon. E. R. | Russell, F. C. H. |
| Loch, J. | Rutherford, A. |
| Locke, J. | Scrope, G. P. |
| M'Gregor, J. | Seymour, Lord |
| M'Taggart, Sir J. | Shell, rt. hon. R. L. |
| Marshall, W. | Shelburne, Earl of |
| Martin, C. W. | Sheridan, R. B. |
| Martin, S. | Smith, J. A. |
| Matheson, J. | Smith, J. B. |
| Maule, rt. hon. F. | Somers, J. P. |
| Melgund, Visct. | Somerville, rt. hon. Sir W. |
| Milner, W. M. E. | Spearman, H. J. |
| Milton, Visct. | Stanton, W. H. |
| Mitchell, T. A. | Stuart, Lord D. |
| Morgan, H. K. G. | Stuart, Lord J. |
| Morris, D. | Sullivan, M. |
| Mostyn, hon. E. M. L. | Talbot, C. R. M. |
| Mowatt, F. | Tancred, H. W. |
| Mulgrave, Earl of | Tenison, E. K. |
| Norreys, Lord | Thicknesse, R. A. |
| O'Connell, M. | Thompson, Col. |
| O'Flaherty, A. | Thornely, T. |
| Ogle, S. C. H. | Towneley, J. |
| Ord, W. | Townley, R. G. |
| Osborne, R. | Townshend, Capt. |
| Owen, Sir J. | Tufnell, H. |
| Paget, Lord A. | Verney, Sir H. |
| Paget, Lord G. | Villiers, hon. C. |
| Palmerston, Visct. | Walmsley, Sir J. |
| Pechell, Sir G. B. | Watkins, Col. L. |
| Pelham, hon. D. A. | Wawn, J. T. |
| Pigott, F. | Westhead, J. P. B. |
| Pilkington, J. | Willcox, B. M. |
| Raphael, A. | Williams, J. |
| Rawdon, Col. | Williamson, Sir H. |
| Ricardo, J. L. | Wilson, J. |
| Ricardo, O. | Wood, rt. hon. Sir C. |
| Rice, E. R. | Wyld, J. |
| Rich, H. | Wyvill, M. |
| Robartes, T. J. A. | TELLERS. |
| Roche, E. B. | Hill, Lord M. |
| Roebuck, J. A. | Grey, R. W. |
§ The remaining Clauses then were severally put, and negatived.
§ Bill to be read 3° on Monday next.
§ The House adjourned at half after Twelve o'clock.