§ Order of the Day for the House to be put into Committee read.
§ House in Committee.
§ LORD MONTEAGLE
rose to bring forward the Motion of which he had given notice. The question which he was about to raise was one of the utmost importance to the Australian colonies, in relation to their primary and fundamental interests. That question was, whether, in establishing a new constitution in these colonies, Parliament was prepared to adopt the principle of a single chamber, or whether in New South Wales they intended to revert to the old constitutional principle of a legislature composed of two chambers, analogous to the order of things established in the mother country. He thought that the arguments which had been brought forward in favour of the Bill in its present stage were founded upon a mistake in a-matter of fact. The noble Earl at the head of the Colonial Department had stated that in his opinion, the voice of the colonists had been pronounced in favour of a single chamber. Now, he should endeavour to show their Lordships, upon various autho- 1031 rities, and, among others, upon the authority of his noble Friend himself, that he was in error in asserting that a government by one chamber was deemed by our Australian colonies preferable to a legislature composed of two. But even in the absence of such direct proof, he presumed it would be conceded that unless there could be clearly shown to exist special and exceptional reasons to the contrary, the result of all practical experience was such as strongly to recommend the adoption of the double chamber in the case now before the House. If any exceptional circumstances did exist, he wanted to know what they were. If on a late occasion their Lordships had wisely consented to hear at their bar authorities upon the subject, fully competent, as they were, to speak to the feeling of the colonists, much of the trouble which their Lordships would have to endure in listening to his argument in favour of a double chamber might have been spared. But as their Lordships had unfortunately come to a different conclusion, and rejected the prayer of Mr. Lowe and Mr. Scott's petition, in the absence of better authority, it would be his duty to refer to evidence already existing and bearing upon the subject. They had already had the experience of the great colonial possessions of this country in exemplifying the relative advantages of a single or a double chamber. Our colonies did not all of them, it was true, commence with two chambers; but all our British colonies, properly so called, had adopted two chambers as soon as they found that form of government practicable; and they had found it practicable, when their social condition was much less advanced than that of the Australian colonies at present. Our colonists, indeed, had universally held to one general principle, to which they had adhered from the outset, to the present time, and that was a love for the institutions of their mother country, and a desire to adapt those institutions to their condition. He found that principle very clearly and forcibly propounded in one of his noble and learned Friend's (Lord Brougham's) earliest productions—namely, his Colonial Policy. The whole of the constitutional part of this question had, their Lordships would recollect, come under discussion in the memorable debate on the Quebec Bill, memorable for the results to which it led. The question was not at that time whether there ought to be a double chamber or a single cham- 1032 ber; that was assumed throughout as incontrovertible, but the question in controversy was how the upper chamber should be constituted. A preference of two chambers rather than one was indeed agreed to by universal consent. Mr. Fox considered two chambers to be so essential to good legislation, that, with all his love of popular rights, he asserted any second chamber, any council chosen in any manner, to be preferable to a single assembly. As much might turn on the capacity of the Australian colonies to receive a second chamber at present, he begged leave to call the attention of their Lordships to the fact that, at the time of the debates on the Ca-nada Bill, Upper Canada contained a population of not more than 10,000 individuals; and yet Fox, Pitt, Burke, and all the great men of that day, assumed as an admitted fact, that it was essential to the good government even of an infant colony that it should have a second chamber. New South Wales contained a population of 220,000 in 1848. Would Parliament refuse to them, on the ground of unfitness, what Pitt had granted to 10,000 Upper Canadians? He would next refer to that wider experience which this country had derived from our earlier possessions, those extensive provinces which were once ours in North America, and which now constituted the United States. The experience thence obtained led to the same conclusion, that it was preferable to have a legislature of two chambers rather than of one. Even when those colonies, after their separation from Great Britain, established their republican confederation, they adhered to the principle of a double chamber; after mature deliberation they determined to adopt it in their congress; and this after an elaborate comparison of the relative advantages and disadvantages of a double and single chamber. Hence originated their House of Representatives and their Senate. Experience had fully justified the wisdom of their choice. He then quoted at great length the opinions of Chief Justice Storey and Chancellor Kent, in which those great lawyers gave their reasons for deciding that a double was in all respects superior to a single chamber. Their authorities were more important as coming from citizens of a democratic Republic. The world had seen a sad and remarkable instance of the mischievous and dangerous effects arising from a single chamber in the French constitution of 1791—a chamber which he 1033 looked upon as a monument of human folly. And yet that experiment had again been fatally tried in our own times in France, and was likely to be attended again with the same consequences. He challenged his noble Friend, with all his knowledge on the subject, to show him an instance in which the experiment of a single chamber had been permanently successful, whilst he would show his noble Friend many instances in which it had been unsuccessful. In Rhode Island and in Carolina the form of a single chamber had been tried, and after a long trial it had been abandoned, and two chambers were finally established. The constitution of Rhode Island was thus described in Mr. Roebuck's valuable work on the Colonies, p. 56:—The constitution is supposed to have been drawn by Clarendon. The assistants sat with the representatives, but they claimed a right to consider separately the resolutions passed. A shorter, simpler, and more honest proposal would have been to form a separate chamber. The representatives resisted their pretensions, 'yet,' says Mr. Bancroft, 'the authority of the patricians was long maintained, sometimes by wise delay, sometimes by a judicious sermon, till a judicious compromise divided the court into two branches, and gave to each a negative on the other.' The case of Carolina was equally striking. There the constitution had been framed by John Locke, but founded as it was on a false principle, its failure was complete.Yet his noble Friend, after having such examples of failures before him, was about, not only to continue one chamber where it was already established, but to establish it where it had never as yet existed, and where, he believed, it was not asked for. He took it for granted that he might now assume that he had shown that a double chamber had hitherto been found to work more beneficially than a single one. He would, therefore, proceed to explain to the House the progress of our later legislation on this subject; but, first, he would call his noble Friend (Earl Grey) into court as a witness in favour of the expediency of a second chamber. His noble Friend (Earl Grey) had been a great dealer in constitutions. He would not say that all the coin which his noble Friend had put into circulation was pure coin—some of it certainly had a Brummagem look about it. His noble Friend had at a former time tried his hand at constitution-mongering in New South Wales. He had also tried his skill in constitution-mongering in New Zealand. In New Zealand his noble Friend established a double chamber. In 1847 he 1034 proposed to establish in Australia a double chamber. He had recommended such an institution in the warmest terms to the able men whom he had appointed governors of those colonies. What, then, had since happened to change the noble Earl's previous opinion? On the 31st of July, 1847, Earl Grey wrote to Sir Charles Fitzroy—One of the most material of the proposed constitutional changes is that which involves a return to the old form of colonial constitutions. In one case, the legislature is divided into two separate houses or chambers; in the other, the representatives of the people and the nominees of the Crown form a single body under the title of the Legislative Council. It does not appear to me that the practical working of this last system would by any means justify the conclusion that it is an improvement on that which it was formerly the practice to adopt; on the contrary, I see many reasons for the belief that the more ancient system, by which every law was submitted to the separate consideration of two distinct houses, and required their joint consent for its enactment, was the best calculated to insure judicious and prudent legislation.On the 31st of July, 1848, his Lordship wrote again to Sir Charles Fitzroy in the following terms:—As to the divisions of the council, your (Sir C. Fitzroy's) opinion, founded, as you state, on long practical experience, that it would be a decided improvement on the present form of the legislature, is one to which I have already stated my own adherence. Had, therefore, the general feeling of the colony responded in any degree to the views expressed by myself, I should have had no hesitation in advising Her Majesty's Government to lay before Parliament the measures necessary to accomplish the change. But it is not such a reform as I consider it to be at all incumbent on the Home Legislature to press on an unwilling or even an indifferent people.He asked his noble Friend to state the grounds upon which he had abandoned, in 1850, all the sound principles and all the just arguments which he had thus twice enunciated in favour of a double chamber. Could he do so, more especially after the progress made by the Australian colonies, which he so forcibly described, and on which he had so justly congratulated the House—on which he justly prided himself. He would ask him why he considered two chambers less proper in 1850 than they were in 1847? How happened it, likewise, if Australia proposed the elements of a double chamber in 1847, that it did not possess them now? Population, trade, revenue, had all increased. He admitted the proposal of 1847 had failed. But why? Because, together with the sound principle of a double chamber, the noble Earl unfortunately introduced into his Bill 1035 the indefensible system of a double election. When the measure was sent out to the colony, it was treated, as he (Lord Monteagle) hoped 'their Lordships would treat the Bill now before them if it remained unchanged—it was laughed to scorn. Both the constitutions for New Zealand and Australia were suspended or withdrawn; and their Lordships would do well to compel the noble Earl either greatly to amend, or to withdraw, the present Bill in like manner. He would next show their Lordships that the colonists themselves, as well as the governors of the colonies, were in favour of a double chamber. Sir Charles Fitzroy, as he had already shown. Sir William Denison, and Sir George Grey (the Governor of New Zealand), as he would show presently, had declared their opinions decidedly in favour of two chambers. Sir Henry Young, the Governor of South Australia, had, in like manner, declared the opinions of the colonists to be in favour of the ancient system of a governor and two chambers. Sir William Denison, the Governor of Van Diemen's Land, had written to the following effect on August 15, 1848:—Under the peculiar circumstances of these colonies, I should most strenuously recommend the adoption of a second or upper chamber. Your Lordship can hardly form an idea of the character of the population. There is an essentially democratic spirit, which actuates the large mass of the community, and it is with a view to check this spirit that I suggest the formation of an upper chamber. The members of this, call it senate, or what you may, will be raised in some measure above the general level of society, independent of popular blame or approbation, but also free from the suspicion of government control; they will conciliate popular feeling, and hold a fair position between the executive and the legislature. Government should have as little as possible to do in the nomination or selection of the members.On the 28th of December, 1849, Sir William Denison again wrote:—I agree with the Privy Council, that it is undesirable to press a reform upon an unwilling or indifferent people; but I much doubt whether the evidence is sufficient to prove that the people of New South Wales are unwilling to adopt two chambers. Indifferent they may be perhaps, but I submit, the welfare of the three colonies now about to be called into existence, might outweigh the indifference of New South Wales. I fear the proposed remedy of empowering the legislature to amend their constitution, by resolving single houses into two, will hardly meet the evil. It is not probable that they will originate a change to diminish their power, and tending to deprive each individual of the importance which attaches to himself. My opinion remains unchanged—every additional day adds to my conviction that it would be most desirable that when a change does take 1036 place, a second chamber should be constituted at once by Parliament. A large portion of the Members should be elected or rendered independent of the Government; otherwise they should hold for a long period, if not for life.Sir George Grey, Governor of New Zealand, wrote on the 29th of November, 1848—That the reasons which induced him to recommend that the legislature should consist of two chambers were so obvious, that he need not trouble the Secretary of State with stating them.Lord Grey having transmitted the despatch adopting a single chamber on the 3rd of August, 1848, to the Governor of South Australia, Sir Henry Young, on the 16th of November, 1849, described in the following terms Mr. Morphett's notice in favour of two chambers—the first nominated by the Crown and hereditary, the second elected. "These resolutions," he said, "may be described as a transfer to South Australia of the institutions of Great Britain, by which the grandeur of the empire has been enlarged and preserved." On the 17th of December, Sir H. Young communicated the resolutions adopted by the Council:—Two chambers, the upper chamber nominated for life, the second elected, with official heads of six departments, sitting and voting in right of office, without election. These recommendations favour the establishment of that early form of government, consisting of a governor and two chambers, which has prevailed in the older colonies, with the exception of New South Wales.On the 22nd of December, 1849, he communicated the resolutions of Adelaide:—"Bill is generally approved of; but the federal assembly condemned, as well as the life nominees in the upper chamber." He (Lord Monteagle) had thus shown that all parties, including the noble Earl himself, were favourable to the system of a double chamber. But his noble Friend had taken a most extraordinary and unprecedented step to get himself out of the difficulties into which he had been plunged by his former experiments. He introduced a new principle unheard of before. He sought the aid of a Committee of the Privy Council to assist him in naming constitutions for the colonies, casting on them a responsibility which should have attached to himself alone. But he did not leave to those councillors the freedom of thought and action essential for offering sound advice. He had already prejudged the question, and committed the Government. The Committee of Council felt themselves bound by what the Secretary of State had already announced. He only allowed them to advise, 1037 so far as he was himself pleased to take their advice. It was, on the whole, the greatest farce ever performed. He wished to speak with the highest respect and consideration of the Lord Chief Justice of the Queen's Bench, of his excellent friend, Mr. Labouchere, of that most able and efficient public servant, Sir James Stephen, who had recently gone into an honourable retirement, after a life spent to the benefit of this country, and so greatly to his own credit, and of Sir E. Ryan, the Railway Commissioner. But of what avail were their high principles, their intellectual powers, or their varied information, when the noble Earl only consulted them with the intention of following their advice when it coincided with his own? To call in two members of his own cabinet to decide whether he was right in his former decision, as Secretary for the Colonies, was one of the most preposterous instances of unmeaning formality which he had ever heard of. The conduct of his noble Friend reminded him strongly of a couplet in Pope's "January and May"—Firm and determined in his mind was be,As those who ask advice are wont to be.The noble Earl asked the advice of his appointed councillors, having firmly determined in his own mind beforehand what course he would pursue. It was what Mr. Carlyle would call "a great sham," to call upon that Committee of Privy Council for advice when the noble Earl knew they could not give it freely. If he had failed altogether in his argument hitherto, he had one authority in reserve, which he felt should be conclusive with his noble Friend. What had been the last act of the Colonial Government in regard to new forms of constitution for the colonies? Why, this—The Secretary of State for the Colonial Department was called upon to give a form of government to the Cape of Good Hope. He had given it. The Cape was a Crown colony. The interference of Parliament was not required to settle the form of its constitution. The noble Earl was neither thwarted in his own endeavour nor driven into a different course by Parliamentary opposition. Yet into the constitution which he had devised for the Cape, he had avowedly introduced the principle of two chambers; he had done so of his own free will and seeking, and of his own preference, founded upon a recommendation from the Privy Council—a tribunal which, in that instance, left free and untrammelled, had recommended 1038 two chambers, as they would hare done in respect to Australia, had they been equally free to express their preference. Now, it followed either that the noble Earl was entirely in error with regard to the Cape, or that the circumstances which made two chambers desirable at the Cape, did not exist in other colonies. But what were the circumstances which distinguished the Cape from Australia at the time the new constitution was devised? The Cape was in open resistance to the law. Australia was tranquil and obedient. He had already upon a former occasion said that the resistance of the Cape colonists was altogether unjustifiable. They might have had fair grounds of complaint. Their interests might have been slighted and disregarded; but still he thought their open resistance to the law of the land was without excuse. They virtually imprisoned, and attempted to starve out the naval, military, and civil servants of the Crown, in order to compel the governor, and those colonists who differed from them, to submit to their dictation. This was altogether unjustifiable, even supposing their case to have been a very hard one. He, for one, never would have given his assent to the submission of the Government to such violent dictation. Yet it was to that colony of the Cape, which thus had triumphed over the noble Earl, the Government, and the Crown, that the noble Earl gave the boon of a legislature formed of two chambers; whilst to those colonists who had been obedient, peaceable, and loyal, he was prepared to refuse it. But there remained the question. Was there some little doubt in what manner this single chamber would work? He knew that it was not well to prophesy evil results from acts of the Legislature. Such prophecies had sometimes the effect of leading to their own accomplishment. He could not help looking forward with great alarm to the effects that might follow in one colony, from the example of successful violence in another. He dreaded to see the spirit of man roused to resistance. Since the days when the chests of tea were broken open and their contents thrown into the harbour of Boston, so fatal an example as that of the Cape had not been given. To yield to the rioters at the Cape that which they refused to a colony more advanced, more enlightened, and more fitted to deal with constitutional forms, he feared, could hardly fail to give rise to a deep feeling of discontent. A case had been cited on a former night 1039 which seemed to weaken his argument for two chambers. The noble Lord (Lord Stanley) stated that a double chamber had been tried in 1832 in Newfoundland, and had been found wanting. Such was the case, but he must observe the circumstances were not analogous. The Newfoundland experiment was too rash a one to succeed. There was no property qualification, and the members were elected by almost universal suffrage. The consequence was that great confusion arose, and that Parliament suspended the existing form of government from 1842 to 1846—the two chambers were merged into one, and this charge succeeded: thus far his noble Friend was right. What since had happened? Why, in 1847 the double chamber was restored, and the government had worked there perfectly well ever since. He begged to apologise for having so long taken up the time of the House. He had dealt with facts, and with facts only, and those facts were, he believed, quite sufficient to establish the principle for which he was contending. He had not dwelt on the example of this country: it was unnecessary he should do. In defending two chambers in the assembly where he stood, it would be enough for him to say, as a summing up of his argument—Si argumentum quœris, circumspice. Would the noble Earl attempt to apply his doctrine of one assembly to the mother country? If he were not dealing with colonists, would he have attempted to refuse them the best constitutional form of legislature? He denied that the noble Earl was justified in endeavouring to establish his case, as he had done, by quotations from colonial newspapers. If newspapers were to settle the argument, he too could bring down colonial newspapers which dealt with his noble Friend and with his measures in a manner that he (Lord Monteagle) thought to be neither respectful nor just. But he denied that newspapers could safely be relied on as evidence in the case. He could refer to Australian papers expressing sentiments very different from those on which his noble Friend relied. His noble Friend should have sought more authoritative support. Why did not the noble Earl direct the governors of the different colonies to lay his Bill before their respective assemblies, and thus seek and obtain an authoritative declaration of the opinions of the colonies? In the absence of legislative declarations he was disposed to consult the petitions from Australia. If there 1040 was one argument, if there was one prayer which ran through the whole of the petitions and memorials he had presented, it was that their institutions should be assimilated to those of the mother country. They seemed—and long might they preserve the feeling!—they seemed still desirous to cherish an unbounded attachment to the mother country, an unshaken loyalty to the Crown. It was true that they had entreated the home authorities to make no alteration in their constitution without their consent. But under what circumstances was that request made? It was at a time when they had been frightened from their propriety by the acts of the noble Earl; when he had proposed to inflict upon the colonies that most desperate of all quackeries, the system of double election—providing that the people should elect municipal councils, who, in their turn, were to elect the assembly. It was when the colonists felt equal indignation and disgust at being insulted with that proposition, that they asked that nothing might in future be done without their own consent. But if the noble Earl assented to their principle, he could not justify the present Bill. If Parliament were bound to do nothing without the previous consent of the colonists, how could the noble Earl introduce so great a novelty as his proposed federal constitution; how could he justify that novelty, which had never been heard of in the Bill of 1842? But he did not think that mistrust and discontent would be called forth by the establishment of such a double chamber as he should recommend. He proposed that the upper as well as the lower house should be elective, the members being of a graver age, and elected for a longer period, than the members of the second chamber; in that way they would obtain a real conservative but at the same time a popular chamber. He would put it to his noble Friend himself, who had laid down so broadly the principle of responsible government—Did he feel very comfortable in anticipating the first burst of popular feeling upon any question at issue between the Home Government and the colonies, when that feeling came to be expressed by all the vehemence of a single representative chamber? Did he think there would be no advantage in having some intervening authority that would break the wave of popular feeling, before it burst in Downing-street? His noble Friend would obtain protection as well as guidance, the colonists would ob- 1041 tain wisdom from the counsel even of a numerical minority sitting in another chamber—a minority it might be in point of numbers, but not a minority in point of weight and experience. He would venture to prophesy that if the principle of a single chamber were adopted, invested with an unlimited power of varying their form of constitution, the new constitution that would be returned to this country would be a legislature formed of a single chamber, but excluding all nominees—in fact, a simple democracy, which he contended this Bill would give the colony an absolute power of creating; and he would say that no Secretary of State, and least of all the noble Lord who had expressed himself on the subject of responsible colonial government in a manner which he thought somewhat dangerous to himself and to the Government, would, after confering unrestrained powers, dare to interpose the Queen's prerogative to negative such a colonial act. He therefore called on their Lordships to weigh well the importance of this question, and to secure to the people of Australia the blessings of the constitution under which the mother country had flourished. He concluded by moving as an Amendment—After the words 'and be it enacted,' to insert the following words:—' That there shall be within each of the said colonies of New South Wales and Victoria a Legislative Council and a Representative Assembly.'
§ EARL GREY
would not now occupy much of their Lordships' time, the greater part of the arguments having been previously disposed of. The noble Lord had gone very carefully and very elaborately into the abstract political question of the merit of one or two chambers; he had gone into an historical survey of the different forms of constitution in our ancient colonies, and those of the united States and other parts of the world; he had indulged in a good deal of criticism on his (Earl Grey's) measure—which criticism, at the proper time, there would, he believed, be no difficulty in answering—he had mixed up with it a good deal of very harmless banter, and some jokes which their Lordships might consider to be a little ponderous. The noble Lord had done all this, but in the whole course of his speech he had not even touched the real argument which he (Earl Grey) took the liberty last night of pressing upon their Lordships. The noble Lord had not shown how it was possible to adopt his views of dividing the legislature of New South Wales into two 1042 bodies without flying directly in the face of the recorded wishes of the colonists in this matter. The noble Lord had not ventured to deny that, from the petitions then upon their Lordships' table from all parts of the colony of New South Wales, it appeared that a unanimous resolution had been there carried, in which the colonists asked that no change, however small, should be made in their existing institutions without their previous assent being given. He (Earl Grey) had said on the previous evening, and he would not then repeat the argument, that when they once gave representative institutions to a colony, such a colony had a right to demand that no change should be made in those institutions without their concurrence; and he would repeat that he, for one, was not prepared to be the Secretary of State who should send out to those colonies a complete and total alteration of the system of government under which they now live, upon which alteration they had not been consulted. The noble Lord had said— "Introduce into these colonies our own institutions." That was very fine, but unhappily it was impossible to do so. A House of Lords existed in this kingdom; but it existed nowhere else on the face of the earth. It had grown up from the time of the Conquest; but it was an institution which they could no more create than they could create one of the magnificent oak trees which had been planted at the Conquest, and which were now crumbling into dust. He had showed their Lordships, on the previous evening, that the present system of government in the colony of New South Wales had worked well and satisfactorily; and upon that ground, and upon that ground alone, he asked their Lordships not to disturb it. The noble Lord had not attempted to pursue his argument, and therefore, without following him into his elaborate examination of the merits of two chambers, he (Earl Grey) would ask their Lordships to concede to him this plain and simple principle, that they should not disturb that which they found to work satisfactorily to the inhabitants of New South Wales, and to leave that constitution practically unaltered, except in those respects in which the colonists themselves had signified their desire for a change.
§ LORD ABINGER
said, the inevitable consequence of giving the colonies a single chamber, and then giving that chamber the power of making such alterations in their constitution as they thought fit, would be that they would adopt, not the 1043 principle of a double chamber, but a single one with Government nominees excluded, making their constitution in fact a pure democracy. Some years ago he had much intercourse with people who were very conversant with the affairs of the colony of New South Wales; and from the information they gave him, he was assured there was a strong democratic feeling in New South Wales. There were two ways of governing that country; and, unfortunately, the noble Earl had chosen the worst of the two.
§ LORD LYTTELTON
could not admit that when the present constitution was granted to New South Wales, in 1842, it was ever intended to withdraw from this country the power of altering it without the consent of the colonists. It appeared to him that it was the duty of the mother country to give the colonies the best constitution which, under existing circumstances, could be prepared for them. Besides, the colonists had, over and over again, petitioned that the principles of the British constitution should be extended to them, and one of those principles was undoubtedly the existence of a double chamber. His noble Friend opposite (Earl Grey) had not dwelt to-night on an argument which, elsewhere, had had great stress laid upon it, that there were not the materials for a double chamber; but he contended that it would be of great advantage to lay down the principle, leaving the colonists to fill up the outline as their circumstances might warrant them. They were all agreed on the question that in the abstract a double chamber possessed a great advantage over a single one, and in addition to the other authorities on that subject that had already been quoted by his noble Friend, he would quote an extract from a work by the noble and learned Lord who had just left the House (Lord Brougham), That noble and learned writer, looking forward to a case of almost political perfection, said that legislation by a single chamber was less likely to be adopted the more enlightened communities became, and proceeded to show that the use of a double chamber was in preventing evils arising from overhasty decisions. In this view, therefore, he contended that it would be of great value to the future destinies of the colonies, that they should lay down the legislative machinery for a second chamber, leaving it to the colonies themselves to decide how that second chamber should be constituted. If the noble Earl's policy were carried out, not only would they have 1044 a single chamber now, but it would be impossible that they should ever have a double chamber, because there was no resisting the argument of Sir W. Denison, that it was not in the least likely that a single chamber would ever adopt the principle of a double chamber, which would operate as a check upon their own proceedings. He did hope, therefore, that the House would adopt his noble Friend's Amendment, leaving the details to be settled by the colonists themselves.
§ The EARL of ST. GERMANS
concurred with those who argued that a double chamber was, considered in the abstract, the more advantageous form of constitution; but it was a different thing to say what, in the abstract, ought to be, and to vote for an Amendment which would have the effect of disappointing the hopes held out to the colonies. His noble Friend, who moved the Amendment, told them that the object he had in view was the establishment of an elective double chamber. Now, it appeared to him that a fallacy ran through the whole circle of his noble Friend's speech in this respect. He spoke of making the colonial institutions identical with those of this country. But surely he did not mean to say that an elective upper chamber would bear any resemblance to the House of Lords? There could be no wider discrepancy than between an elective chamber and the House of Lords as it existed in this country; and yet the noble Lord insisted upon his proposition, in order to render the institutions of the colonies identical with those of the mother country. Then the noble Lord relied upon the despatches of the different governors as being in favour of his proposition; but no one could read the despatches of Sir Charles Fitzroy, Sir William Denison, or Sir Henry Young, without seeing that they never contemplated an elective chamber. What they wanted was a chamber of nominees, which would save them, in many cases, from the ungracious task of interposing their veto upon the acts of the legislature. And yet, notwithstanding this, his noble Friend had argued throughout as if the governors were in favour of a measure which, as the noble Lord who had last spoken (Lord Lyttelton) truly told them, had never been before the colonies at all. He looked with suspicion on the formation of a double chamber under existing circumstances, because he felt that if they took away the best men in the colony to form a second chamber, they would materially injure the character of the first; 1045 and it must be remembered that there were not many among the settlers who would be ready to give their gratuitous services in aid of the government of the colonies. Many of the settlers resided a thousand miles from Sydney; and it was impossible for them to leave their flocks, their herds, and their farms, and reside, for several months in the year together, at Sydney. The choice of representatives must be confined, for the most part, to the residents in Sydney, and its neighbourhood. The present system was adopted by Lord Stanley in 1842 as the one best adapted to the then existing circumstances of the country; and the noble Lord who had just sat down declared that it had worked well. If that were the case, he saw no reason for interfering with it.
The noble Earl (Earl Grey), in support of this measure, had alleged that the Australian colonies were so fond of their present form of constitution, that it would be quite gratuitous on the part of their Lordships to make any alteration in it, as such alteration must prove highly disagreeable to the inhabitants of those colonies. Now, what were the real facts of the case? From the papers which had been laid upon their Lordships' table, it appeared that they were simply these. In the year 1847, the noble Earl the Secretary for the Colonies proposed to introduce into New South Wales an entirely new constitution, similar, or very nearly so, to the constitution which had been given to New Zealand; and the consequence was such as might be imagined—a storm of indignation arose in the colonies, and remonstrances were sent to this country against the Government measures. They prayed that they might not be subjected to crude experiments. They objected to two chambers; but it must be borne in mind that it was not to the principle of two chambers that they objected, but simply to two chambers, one of which would be entirely nominated by the Crown. The colonies never had the simple question, whether two elective chambers were better than one, brought before them. The only question which they had to consider was, how they could place the nominees of the Crown in such a situation that they should be of the least possible obstruction to the elective members. The colonies required, very naturally, that the nominees should be mixed up with the representatives of the colonies, and that they should not form a separate chamber of themselves, as they would 1046 thereby be enabled to place a veto oh the proceedings of the representatives of the people. The colonies did not object to the principle of a second chamber; on the contrary, they distinctly prayed that their constitution might be assimilated as nearly as their circumstances would permit to the constitution of this country. And were not two elective chambers, representing the wants of the people in different ways, a much nearer resemblance to the spirit of the British constitution than this anomalous single chamber? But then their Lordships had been told, "Oh, all that is very true, but it was necessary that these colonies should have been trained to the exercise of representative institutions before you confer upon them the privileges of a double chamber." It was also objected that there were no materials in these colonies for two chambers; but if there were not materials for a second elective chamber, how could they find materials for nominees? How could they find persons of such influence as to be fitted, on the bare nomination of the Government, to control the votes of their elected colleagues in the same chamber? And it should be recollected that in the United States of America representative institutions had been granted to colonies of far less importance in population and wealth than the colonies in question. By the ordinance of 1787, for establishing a government in Ohio (which had been the basis of legislation on this subject ever since), it was provided that as soon as in any territory there should be 5,000 male inhabitants of full age, there should be established a legislature consisting of two elective chambers. And if their Lordships would take one of the latest examples, they would find that to the district of Oregon, by no means the most civilised portion of the united States, two chambers of legislature had been given, the first consisting of nine elective members, and the other of eighteen representatives of the people. And were they to be told that there was such a moral and intellectual inferiority in a colonial population, that the backwoodsmen of Oregon could afford materials for a senate, and they were not to be found in New South Wales, which, in 1848, exclusively of Port Phillip, had 170,000 inhabitants. As to the objection that such a senate would be too small for practical purposes, he need only point to the State of Delaware, where the senate consisted of only nine members, or New Hampshire, where it had twelve, as 1047 a refutation of their argument. He did not, however, agree with those who wished to establish an aristocracy in the Australian colonies; he did not think it likely aristocratical institutions would take root there: they were the result of long habit and old associations; but the necessity for a second chamber did not rest on these grounds. To prevent hasty legislation—to provide a nucleus of experienced members—and to combine together those conservative elements, always found in all populations, were the legitimate objects of a second chamber; which, he thought, might be attained by its members being fewer in number, with a higher property qualification, of greater age, and holding their office for a longer period. He thought if they passed this Bill in its present shape, they should commit a great error. If they believed, with him, that there were great and radical defects in this constitution—that in forcing it on the colonies they were about to forsake the tried paths of legislation—if they believed, with him, that they were about to disregard the experience of constitutional governments, and, above all, of the British constitution—if they believed that they were, by this Bill, about to give to the Australian colonies a constitution to which it was not safe to confide the interests either of the colonies or the empire at large, then they would adopt the Amendment of his noble Friend.
§ On Question,
§ Their Lordships divided:—Contents 20; Not-contents 22: Majority 2.
|List of the CONTENTS.|
|List of the NOT-CONTENTS.|
|Shaftesbury||Saye and Sele|
|List of the NOT-CONTENTS.|
|Eddisbury||Say and Sele|
§ Resolved in the Negative.
§ On Clause 5, regulating the franchise,
§ LORD LYTTELTON
said, he had given notice of an Amendment for reducing the franchise to one-half the amount at which it stood at present in New South Wales; but as the noble Earl intended introducing a clause on that subject, he should beg leave to withdraw his Amendment. In consequence of the great proportion of convicts in New South Wales, a high qualification was considered necessary in 1842; but the same necessity did not apply to the other colonies.
§ EARL GREY
confessed that he had always thought the franchise in New South Wales too high; and the only reason the Bill was drawn as it stood was, that he did not wish to make any alteration in the existing state of things that could be avoided. However, as there was a very general feeling in favour of a reduction of the franchise, and as it was likely that the existing franchise would probably operate unfavourably at the first election in Victoria, he proposed to introduce the amendments suggested by the noble Lord, in a clause which he intended to submit for the approbation of the House.
§ Clause agreed to, as were Clauses 6 and 7.
§ On Clause 8,
§ LORD MONTEAGLE
said, by this clause it was provided that, no matter what the capacity, numbers, or intelligence of the population of Western Australia might be, yet they were not to have the benefit of a constitution until they were prepared to pay all their expenses. He thought this a most severe restriction, as it should be recollected that, until a comparatively recent period, an annual vote was passed by the Imperial Parliament towards the expenses of the Government of Canada. The best way to get a revenue, and to render taxation palatable, was to give good government to a country. Certainly Van Die-men's Land had, for some years back, been obliged to borrow to the amount of 40,000l. to 50,000l. a year; but surely that was no reason why it should not have a constitution.
§ EARL GREY
said, it was no new principle that representative government and provision for the public expenditure should go hand in hand; on the contrary, it was as old as the British constitution. Until the people of the colonies were able to pay the expenses of their own civil government, they had no right to expect the advantages of representative government; the 1049 two should go together. Every one knew that, to the want of money by the Crown, and the necessity of obtaining it from the House of Commons, the growth of our own liberties, or at least their establishment and security by the sanction of specific laws, were owing. His noble Friend said we had gone on an opposite principle in the case of Canada, Most certainly, if he (Earl Grey) wanted an instance to make out his own case, he should fix on that. In Canada, Parliament created representative institutions, but at the same time enabled the colonial government for a long time to be carried on by means of lavish grants voted by the House of Commons; and the consequence was, that in that country representative government remained a farce and a delusion until the system was put an end to by the pressure of economical considerations on the Imperial Government. If, in 1791, we had thrown on Canada the burden of her own government at the same time that we created representative institutions, those institutions would have been a reality.
§ LORD MONTEAGLE
contended that the case of Canada offered no analogy to that with which their Lordships had now to deal. As to this country having formerly defrayed the expenses of colonial government, such things as colonial estimates still existed, and the salaries of West India governors, as the noble Earl well knew, were in some instances paid by this country.
§ EARL FITZWILLIAM
thought that, although the withholding of a constitution might be right, the ground alleged for it was wrong. It was true that the power of the purse had given the House of Commons the means of exercising its functions; but the rights of the people were anterior to its origin, and this was a free country before the House of Commons furnished money to the Executive Government.
§ EARL GREY
said, his statement was merely an historical one. If his view was practically true as regarded ourselves, which could not be disputed, he believed it also theoretically true as regarded the colonies. With respect to the salaries of governors, he thought it would be wise in all cases to pay them from the Imperial Treasury.
§ LORD LYTTELTON
rejoiced that his noble Friend opposite (Earl Grey) should have come round to the views he now expressed as to the simultaneity of representative institutions and provision for public expenditure; for it was quite certain that at one period they had been very different. In 1846, when the Government to 1050 which he (Lord Lyttelton) had belonged were in office, the noble Earl pursued an entirely opposite course, being in favour of giving a representative constitution to Western Australia at once, before any step had been taken by the colonists to defray their own expenses.
§ Clause agreed to, as were the succeeding Clauses up to 13.
§ On Clause 14, charging the colonial revenues with expenses of collection, &c., subject to the regulations of the Commissioners of the Imperial Treasury,
§ LORD MONTEAGLE
wished to know if any steps were to be taken for bringing this branch of the expenditure under the cognisance of the colonial legislatures?
§ EARL GREY
concurred in the opinion that the colonies should have the fullest information as to the whole of the expenditure, but thought it might lead to inconvenience to insert any provision on the subject in an Act of Parliament like the present. Hitherto the Imperial Legislature and Government had kept exclusively in their own hands the whole management of the customs establishments of the colonies. He had lately been in communication on this subject with his right hon. Friend the Chancellor of the Exchequer, and he had very little doubt that they would be able to mature an arrangement by which very much greater control over their own customs establishments would be given to the local legislatures, still maintaining the principle, that the cost of collection should be paid out of the gross produce, laying at the same time the accounts of expenses before the legislature.
§ Clause agreed to, as were Clauses 15 to 24.
§ LORD LYTTELTON
then proposed to introduce the following clause:—That the Governors of Victoria, New South Wales. Van Diemen's Land, and South Australia respectively, with the advice of the Legislative Council, to be established in the colony under this Act, shall have leave to repeal all or any part of the Acts of 5 and 6 Victoria, and 9 and 10 Victoria, for the regulation of the sale of land or any Orders in Council issued by Her Majesty in pursuance of those Acts, or either of them, and to make further provisions for the management of the said waste lands and the appropriation of the revenue arising therefrom.The noble Lord said, his object was to give the colonial legislature the power of dealing with the sale of the Crown lands, and especially with the price of them. With regard to Van Diemen's Land and South Australia, the value of the Crown 1051 lands was equal to the amount placed upon them by the Government, and he expected those colonies would not be disposed to meddle with the existing system; but he had been reluctantly brought to the conclusion that it was no longer possible to maintain through the whole extent of New South Wales and Port Phillip the existing price of unsold land at 1l. an acre. The extent of unsold lands in those colonies was so enormous, that, for an indefinite period it could not be suited for any other than pastoral occupation; and the franchise which the Government proposed proceeded entirely upon the fact of this kind of occupation. He contended that on this ground, it was expedient that the local legislatures should have the power he proposed to give to them. It was said, indeed, that Her Majesty's Government were prepared to concede this power to the federal assembly. The whole principle, if that were the case, was then given up; the whole point of the Land Sales Act was conceded when the federal assembly was intended to be invested with this power. He might perhaps be told that the machinery of the federal assembly had been blown to the winds; but whether that was so or not, it had been proved to demonstration that they would never be able to deal satisfactorily with the power of selling waste lands. Such being the case. Her Majesty's Government now proposed to leave the existing law intact. He could not believe they meant long to abide by that position; but in the meantime he submitted that Parliament was ripe for giving this power into the hands of the colonial legislatures. Few more popular measures could be adopted. Few measures would more conciliate the feelings of the colonists towards the whole Bill as it stood; and he saw no reason for doubting that the legislatures of Victoria and New South Wales would not deal with the subject consistently with the interests of those colonies. That they would reduce the price of land he had no doubt; but he believed they would not be inclined to alter in any other respect the principle of the existing Land Sales Act. They would be willing, he expected, to retain the existing division of the funds arising from such sales—one portion being appropriated to local improvements, and the other to the promotion of emigration. But if they were not, it would still be in the power of Her Majesty's Government, through the Colonial Office, to re- 1052 fuse their assent to any measure offered to them. The particular point with the colonies, however, would no doubt be that of price. At the same time he should object to the price of land in New South Wales being reduced to a nominal amount. The question, then, was one of degree; and he contended that the colonial legislature would, upon such a subject, have the best means of arriving at the best decision. The chief practical difficulty in the way of their dealing with the question would be the vested rights and interests of individuals who had purchased at a higher rate — that was, supposing the price to be reduced. On this point he would only express his belief that the difficulty would be fairly met by the colonial legislatures; but at the same time he would add, that since the year 1842, when the Land Sales Act passed, the sales of land, both in New South Wales and Port Phillip, had been exceedingly few in number. The vested interests which could interpose any practical difficulty were therefore extremely limited. It had also been urged that the proposal to give over the unsold lands of the Crown to the colonies, was an absurdity, inasmuch as, owing to their extent, they were out of the reach of the colonies. Certainly not, was his reply. The reserve would still be in the hands of the Crown. The practice had always been that the amount of land, such as could be easily ascertained, was, in nearly all the colonies, in the power of the colonies themselves to deal with; but at the same time he admitted it would be important, if his proposal should be adopted, that boundaries should be accurately defined. Entertaining these views, he should submit the clause which he had read, hoping by it to give the colonies practically the power of reducing the price, if they should think fit, of the unsold Crown lands.
§ EARL GREY
said, he could not concur in the proposition of his noble Friend, because if the House adopted it, the greatest blow would be given to the future prosperity of all the Australian colonies. Up to the year 1831 the practice had been to grant lands to all applicants under certain rules and conditions. The object of those rules was to endeavour, as far as possible, to prevent land being claimed by parties who really did not belong to them. To accomplish that, a regulation was required that the amount of grant should be in proportion to the capital possessed by the settler, the grant to be resumable unless 1053 there was a certain amount of improvement upon the land. But, practically, all these useful regulations were a dead letter, for they were evaded in a manner which it was impossible by any vigilance to prevent. It was, therefore, suggested that, instead of giving land away, it ought to be sold, and the proceeds applied so as to increase the value of the land to the real settler, and to assist the emigrant. When the prices were settled under Lord Ripon's regulations, the greatest discontent was, no doubt, caused in the colonies; but the beneficial effect of the new system soon became obvious. In 1840 the whole subject was brought under the consideration of a Select Committee, and after a very long, full, and patient inquiry, that Committee came to the conclusion that the prices of land ought to be raised, but that in order to induce persons to purchase more largely, a parliamentary security ought to be afforded to them against the prices being subsequently reduced. This view was adopted by the noble Lord now at the head of the Government, and then the Colonial Secretary, but he did not remain in office long enough to carry it out. His noble Friend, however, (Lord Stanley), who succeeded him, brought in a Bill in 1842, founded on the report of the Committee, and, with the object of guaranteeing to future purchasers that their property should not be reduced in value, provision was made for the permanent fixing of a minimum price, and very large sales subsequently took place. He wished, indeed, to call their Lordships' especial attention to the effects which had resulted from the policy thus adopted. Their Lordships would recollect that it was in 1831 that the scheme was adopted of selling land, and applying the proceeds to emigration. Since that period eighteen years ago—there had been realised by land sales no less than 2,500,000l., all of which was expended in furtherance of emigration. Previously to the time in question the emigration to our Australian colonies consisted only of convicts and small numbers of persons in the superior classes of life. The lowest sum at which a passage—a steerage passage—could be obtained, amounted to upwards of 40l., whereas, at the present time, a person could be conveyed to the colonies in question at an expense of from 12l. to 14l., and with infinitely superior accommodation. Well, the number of persons sent out by means of this 2,500,000l., amounted in the eighteen years to 117,000 souls. Nor 1054 was this all. The indirect effects of the system were to encourage voluntary emigration, which was carried on to the extent of 61,750 persons, making a grand total of 179,350 souls. Under these circumstances he had to ask the House not to shake the confidence of purchasers in the value of the commodity offered to them for sale. If they did so, the result would be seriously to check the tide of emigration, which, as he had shown, was setting so strongly towards the Australian shores. But there was still another party interested—a party formed by the general body of the British public at home. He maintained that the Crown lands were domains held by the Crown as trustee for the benefit of the great bulk of Her Majesty's subjects, and that it was of the greatest importance that they should not be engrossed by a few persons to the detriment of future purchasers. He found, however, that were the prices of the lands to be now lowered, they would be bought up by speculators to hold until the gradually increasing population enhanced the value of land, and then to be resold at a corresponding advance of prices. One of the arguments in favour of the proposition before the House was, that that proposition was popular in the colonies themselves. He did not, however, by any means admit that this was the case. He believed, on the contrary, that public opinion was much divided upon the point; that in South Australia the general feeling was in favour of the maintenance of existing laws as to land prices; while even in New South Wales a considerable diversity of opinion existed. He believed, indeed, that the legislative council of that colony would not now support the report of a committee of their body, made in favour of a reduction of price. The resolution against the present minimum of price come to by the council in 1846 showed that there were only ninety-seven representatives in favour of reduction, the great body of the majority being made up of nominee members. He repeated, however, that he had every reason to believe that the report of the committee to which he had alluded did not embody the opinion of the council, or that of the colonial public. Their Lordships had had some experience of committees, and knew how very generally it happened that the formal opinion pronounced by a committee was in reality the opinion of its most active and influential member. He need only allude in conclusion to the petition most numerously signed by the squat- 1055 ter class in the colony, against any lowering of the price of lands, and to appeal to their Lordships if the system had produced the results which he had demonstrated—if under and by means of it, Australia had grown from being a mere convict settlement into the dignity and power of a nation—he appealed to them not to endanger or to change a course of policy, of which the results had been so uniformly advantageous.
§ LORD MONTEAGLE
supported the Amendment. The system which his noble Friend had subverted was most vicious, and he deserved the thanks of the country for its abolition. But it did not follow that the system which he wished to introduce was a good or a beneficial one. The great argument which had been urged in favour of the proposition of his noble Friend was, that a large fund would be raised by the sale of those lands for local purposes, and for the promotion of emigration. But he contended that the sale of those lands would never realise the expectations of his noble Friend. It was a matter of great interest to the people. The noble Lord admitted that they were entitled to deal with the matter, yet he practically refused to them the privilege which he acknowledged in theory was their indisputable right. In the year 1842 a report was adopted condemning the land system. In the year 1844 another report was adopted of a similar effect; but before that was agreed to, a circular was sent round to the magistrates, who all concurred in it. In the year 1846 there was a resolution in council condemning the system; and in the year 1849 the present report was adopted. He entreated their Lordships to act upon the principle which they had hitherto adopted, to give the local legislature the power of acting for themselves, and to support the Amendment.
§ On Question,
§ Their Lordships divided:—Contents 18; Non-Contents 28: Majority 10.1056
§ Resolved in the Negative.
The BISHOP of OXFORD
then rose to move the insertion of a clause, the object of which was to relieve the Established Church in the colonies from the restrictions imposed by the statute laws passed to regulate the Church since the Reformation. He felt the less embarrassment in doing so, because of the statement to which he had listened with so much satisfaction on the previous evening, that Her Majesty's Government were ready to listen to any reasonable suggestion to extend the spiritual power of the Church of England. The present position of the Church was this—that all the laws and ordinances affecting her, and in force when the colonies were founded, became binding on the colonial clergy. It was foreseen when bishops were first appointed for the colonies that it would be necessary to provide some machinery by which those things so easily done in England could be effected in the colonies, and power was accordingly given in the patents of the first bishops to enable them to hear and examine witnesses and to exercise the ordinary episcopal powers in their own courts. It was found, however, the first time those powers were put to the proof, that the authority of the bishops was disputed; and in reference to the highest law authorities at home it had been decided that in advising Her Majesty to insert those powers in the bishops' patents, they had exceeded the just limits of the Crown's prerogative, and had gone beyond the powers they could properly convey in those instruments. The words conferring those powers were now withdrawn from the patents, and the position of the Church was this—that it was utterly impossible for the bishops or clergy to make any rules for their own internal management, because no such rules could be enforced without the authority of the Crown, and by one of the canons it was prohibited even to discuss them. Nay, more, it was impossible to make any rules binding on the members of the Church, even by their own consent. Now, these were no fanciful evils. The noble Earl (Earl Grey) last night had referred to the authority of a rev. gentleman to show that the colonial, and not the Imperial Legislature, was the quarter where those evils ought to be redressed. With the noble Earl's leave, he would quote the 1057 valuable evidence of the chaplain to the Bishop of Tasmania to give their Lordships some idea how the law had operated, and how far the Church of England was entitled to look to the Legislature for redress:—As chaplain to the Bishop of Tasmania from 1843 to 1848, and having, either previously or subsequently, visited the other Australian colonies, I have seen many serious disorders and inconveniences arising from this anarchy and want of due regulation.In a memorandum, to show the evils of the want of discipline, he said—On the removal of doubts concerning the right of the bishop, clergy, and lay members of the Church of England in an Australian diocese to make regulations by consent among themselves for the better conduct of their local ecclesiastical affairs, the doubts which it is proposed to remove cause much embarrassment to the members of the Church of England in the Australian colonies; and, as the Government have now determined to give the colonists the initiative in proposing their own civil constitution for the sanction of the Crown, it seems reasonable to extend to them the same freedom of action in ecclesiastical affairs, or rather to remove the doubts which hinder the members of the Church of England from assuming the freedom which other denominations already exercise with advantage. Nine years' intimate experience of the most recent proceedings of our Church in those parts convinces me that the internal affairs of the Church of England and Ireland in the Australian colonies are now in a state of almost complete anarchy; because the ecclesiastical law and courts of England will not work there, and there are no lawful means of making local regulations by consent. The Tasmanian letters patent authorise the bishop 'to proceed to final sentence in due form of law 'with criminous clerks. But' no tribunal exists which has power to try and convict a chaplain,' says the Registrar of Tasmania (19th July, 1845). The Bishop of Australia (now Sydney) endeavoured to proceed with the consistorial court, which the old letters patent of Australia seemed to sanction, but he could not. In his protest (1836) he stated the serious inconvenience resulting from these doubts: 'The bishop has no opportunity of stating, in the face of the Church, the grounds upon which his judgment is formed, and the party condemned is deprived of the benefit of an appeal;' all which was afterwards verified in the experience of the Bishop of Tasmania, who deprived Messrs. Wig-more and Bateman of their licenses pro arbitrio suo. The ecclesiastical laws of England were not very applicable to the colonies; and doubts existed almost in every case which arose, whereby their application was in practice forbidden. I have before me the opinion of Mr. Home, Attorney General of Van Diemen's Land (May 20, 1845), stating the objections against extending the improved English Church Acts to the colonies; which objections were acted upon. The same authority said that there was not in these colonies a single preferment in the sense of the English statutes; so that the power given to the bishop in the new letters patent of Sydney, 'to give institution to benefices' which do not exist—'to call before him the clergy,' who need not come—' to have 1058 full power and authority to affirm, reverse, or alter the judgment, sentence, or decree 'of inferior ecclesiastical courts, which cannot be enforced; all these provisions are nugatory and perplexing to all parties concerned. The Church of England in the Australian colonies cannot at present make or enforce local regulations for want of some removal of doubts which exist as to her power to do so. 'The Churches of Rome and Scotland,' said Mr. Harrison, the Registrar of Tasmania (July 18, 1845), 'are not amenable to the temporal courts in this colony for any ecclesiastical judgment passed or discipline exercised by their respective heads; they, however defective they may be in law, are yet final, and are not open to further legal censure, nor can the clergy of those churches harass their ecclesiastical superiors by appeals to the superior courts here, or to the Privy Council at home; whilst the judgments of the Church of England, however just and equitable, however founded upon notorious facts and admitted delinquency, if they are not conducted in strict accordance with the ecclesiastical law, are open to appeal both here and at home, to mandamus, and to sundry vexatious proceedings. Nay, if they be even legally correct, experience has proved that they are not secure from attempts to reverse them through the medium of the civil power (that is, the Secretary of State). Instances might be multiplied in proof of the doubts which enveloped all the relations of the Church of England in these colonies—doubts which could only be removed by the wholesome action of local experience and discussion.He went on, in another paper, with which he would not trouble their Lordships, to show how all attempts to give the Church of England full scope, and extend her usefulness, had failed. The bishop tried, for instance, to hold home visitations—he was utterly unsuccessful. Again, he attempted an ordinary visitation, but, from the absence of all power in his hands, he was obliged to abandon it, as he could not procure the attendance of his clergy. In one instance the bishop called the clergy together to consider the affairs of the Church; but they told him they had nothing to do with the matter—had no power to interfere—did not wish to be mixed up with it, and that they would leave him to manage it himself. Another case was mentioned by this gentleman, to which he begged their Lordships' attention. It was this: the Bishop of Tasmania, thinking there was not sufficient service in his own cathedral church of St. David's, determined to give a service himself on every Saturday evening, from which he believed great advantages would arise to the inhabitants. The officiating clergyman, thinking this interference an indignity, ordered the churchwarden to lock the gates. The bishop, who was very popular with the inhabitants, came down to the church attended by a large congregation, who, on 1059 finding what had occurred, became violent, and threatened to break in the doors, whereupon the churchwarden unlocked them. It was found, however, impossible to settle the question finally, or to lay down any rules which would be attended to; and the consequence was that it was left to be determined every time by brute force whether the Bishop of Tasmania was to preach in his own cathedral or not. The last statement with which he should trouble their Lordships was one not less remarkable:—The Bishop of Tasmania was desirous to divide Hobart Town into four parishes; but, at a meeting of the clergy concerned, whom he had summoned to concert a plan with him, one retired, after having protested against the whole proceeding. The rest remained, and voluntarily followed the wishes of the bishop, which were reasonable enough; but great doubts hang over this parochial division, and it is set at nought with impunity.Such were the evils that resulted from the impossibility of combined action. He did not wish to exaggerate the evils to which the members of the Church of England were subject in the colonies in making internal regulations, even by consent, or the restrictions and difficulties to which they were exposed. He had been lately told by an intelligent gentleman that it was impossible to conceive the state of the Colonial Church, and that the simple fact of its being known that every clergyman held his office by the mere ipse dixit of the bishop, without any rule or control, as well as the feeling that the clergy did not stand in the same position as the clergy at home, and on an equally sound and ascertained footing, had a most material effect on their status, and lowered their standard of usefulness. It was the opinion of the most eminent legal authorities that all the laws which affected the clergymen of the Church of England in this country affected them in the colonies also. The restraining clauses which subjected the clergy of the Church of England to fine and imprisonment if they laid down laws for their own government, applied to all the clergy subject to the province of Canterbury; and in the letters patent of the colonial bishops it was provided that the bishop and his clergy should be subject to the see of Canterbury; and therefore they were placed under the same restraining enactments as the clergy of that see; but they were not given the same power in local matters, and did not enjoy the force of a body of rules carried up by prescription from generation to generation, and acted on in every diocese at home. 1060 None of the cases he had quoted could arise here: they were all provided for by the regular course of church discipline, and by the growth of those prescriptive rules of which he had spoken. The Church of England was hampered, while other churches were left free. To the clergy of other churches—grave, zealous, and earnest men, as he rejoiced to know—they had given freedom, while they bound the members of their own Church. They gave them just so much of ecclesiastical law as would impede them, but not enough to make the position of the Church intelligible, or her ministration effective. That then was the evil to be remedied. And the clause he proposed to insert provided, that when members of the Church of England—bishops, clergy, and laity—assembled together, and, by consent, laid down rules for their internal government, it should be impossible for those who had consented to those rules afterwards to appeal against them to courts at home. He had been assured by lawyers of the highest authority there was nothing objectionable in the clause. The effect of intrusting members of the Church of England in the colonies with the right he proposed, would be that they would be left to make some rules for their own internal government. These would be tested by experience, and if they were found to succeed, application might be made to the colonial legislature for their sanction. The time was not now come for that. What he asked their Lordships to do was, what the colonial legislature could not do—what concerned not local but imperial law—to set their co-religionists free from certain consequences of imperial legislation. It was a point to which Black-stone had adverted, that although all the laws relating to the church courts were valid in the colonies, yet reason and experience prevented their enforcement there, because they were not suited to colonial life. All that the clause proposed to do was to remove the doubt which existed, the illegality which he believed existed, in regard to doing what could be done by all bodies of religionists, but which could not be done by members of the Church of England. These restraining laws did not apply to other bodies at home; but owing to the connexion at home between the Church and the State there was a jealousy, and the Church was restrained. But what their Lordships were asked to do was, not to apply that restraint under circumstances where there were none of the escapes from 1061 the mischievous effects which might be found to exist at home. It was said, what was asked to be done, ought to be done by the colonial legislature only. But it was not a matter for their colonial legislatures, for it did not touch colonial but imperial legislation. The object was to set free from the chain of imperial legislation those who were members of the Church of England. Then it was said, they ought not to attempt to claim in that part of the world the powers of a dominant church for the Church of England, but rather trust to the purity of her faith and her spiritual power. He entirely agreed in that opinion; and if there were anything in the clause which went contrary to it, he begged their Lordships to believe he would not be the man to propose it for their adoption. But it was in the spirit of that objection that he proposed the clause. The clause was purely permissive; it proposed to give no power to the Church of England in the colonies which the members of the Church of Rome and the Presbyterian body did not enjoy. It gave them no superiority; it gave them power merely to draw up such interior rules for their own conduct which they were restrained from drawing up by their anomalous connexion with the restrained Church at home. It was not settling a home question in settling a colonial question. The difference was perfectly plain. When a colony was first founded, there was the same difficulty, at first, in knowing how far the temporal laws of the mother country would apply to the colony. How was that question settled? It was very soon settled. Some representative assembly was called together which proceeded to make internal laws. Courts were instituted. An incidental code of legislation began to be made, marking, however, what were the laws of the mother country. There was the same need in respect of spiritual legislation; and the question was settled precisely in the same way, by allowing members of the religious body to meet and agree among themselves as to the necessary rules for guidance in their own spiritual affairs—which rules being established in practice, application might be made to the colonial legislature for their sanction. The concern of Parliament was to set the churches in the colonies free from the embarrassment of their anomalous connexion with the Church at home, which gave them neither rule nor freedom. Again, it was objected that there was 1062 danger lest the churches in the colonies, possessing such powers, should adopt a new faith, and separate from the Church at home. But if the proviso appended to the clause were considered, that danger would be found to be guarded against, The oath of allegiance was required to be taken, and the Thirty-nine Articles to be signed, by parties admitted to any see or pastoral charge. The liberty and licence given were to be given within the definite restrictions which limited the Church of England at home. It was not proposed to give power to alter a single Article, or to touch the Liturgy. The objections to the clause fell absolutely to the ground. The expression, "declared members of the Church of England," had a second intention, and was meant to apply to those who claimed to themselves the privileges of the Church of England in their application to the Government—so bringing themselves under the description. It was alleged that, whatever might be said to the contrary, the proposed clause would place members of the Church of England in a position of advantage over others. What, candidly and judiciously weighing the matter, was the effect of the words which clothed the last proviso? It was declared that these regulations should not have any other effect than the regulations, laws, or usages of other churches or religious communities in the same colonies. If there were force in language, that to which objection was taken was specially guarded against it. If it were possible to suggest any form of words which could more effectually attain the object he had in view, the proposal would be hailed with pleasure by him, and not only by him, but by numbers out of that House, who had heard it said last night by the Government that they were really and honestly sincere in the desire to aid the Church of England in working herself free—not gaining new power from the State—for the exercise of her own inherent spiritual power in a way beneficial to herself and not injurious to others. The only objection that he remembered to the clause was, that however good it might be, it was not right to introduce such a clause in a special Act, but that it would be more convenient to make it part of a general Act, applying to all the colonies of Great Britain. For his own part he thought that the noble Earl was perfectly right in temporal matters not to propose one grand scheme for the whole of the colonies; and he would apply the same principle to the 1063 spiritual rule of the colonies, because a mode of legislation which might be wise and just with regard to one, might be very unwise and unjust with regard to another. To say the contrary, was, he thought, really to attempt by a side wind to get rid of all legislation upon the subject. He begged their Lordships, in considering this clause, to give it that fair weight which an attempt to meet a great practical evil pressing on the most important interests of the colonies deserved at their hands. He begged them—without distinct and sufficient cause shown—not to continue to the colonies that which was a sore and ever-present restraint upon those spiritual energies which for their Lordships' sake and the sake of the colonies it was most important they should set at liberty and strengthen. He begged to move the insertion of the clause of which he had given notice.
§ EARL GREY
hoped that the right rev. Prelate would not insist on that occasion upon pressing the House to come to a decision on this subject. He was far from the opinion that the matter alluded to was not an evil that required to be redressed. It was, however, one of very great difficulty, and he was sure they could not safely meet it by introducing a single clause of the nature he held in his hand. A near examination of the clause would show how extremely defective it was, and how impossible it would be to create powers of the kind proposed without going further, and declaring by whom and in what manner those powers were to be exercised. They were going by the proposed clause to create neither more nor less than a legislative authority in the Church of England. The right rev. Prelate had told them that he had guarded it carefully with certain provisoes. That might be true; but still it would create a legislative authority, which might lay down an interpretation of the Articles, and of the Book of Common Prayer, in accordance with their own views; and what would the right rev. Prelate say if in some case the majority were to decide in support of the views on a most important question held by Mr. Gorham? Yet there was nothing in the clause to prevent such an interpretation being so authoritatively imposed in that colony. Then, again, they should look at who were the persons to whom that large authority was to be confided. They were to be the "clergy and lay persons being declared members of the said Church," &c., and then came the words. 1064 "severally and respectively." What was the meaning of that? Were the clergy to meet in one house, and the laity in another? and was the consent of both necessary to make these regulations binding? or were they to meet together? He confessed he was unable to construe the words. In fact, he felt convinced that they could not by a clause of this description deal with a difficulty of the nature it was meant to obviate. It was of the utmost importance that they should avoid clashing with the colonial legislature; but he was quite certain, from what he knew of the temper with which the colonies viewed these matters, that, let them do what they pleased, or say what they could, if they introduced a special provision of the kind proposed into this particular Bill, it would be considered that it was intended, in some way or other, to overrule the colonial legislature. He hoped, therefore, that the right rev. Prelate would not put them to the pain of a division, but would consent to reserve the subject for more general and deliberate consideration.
The BISHOP of SALISBURY
expressed his intention to support the clause proposed by his right rev. Friend. At the same time, he was bound to say that, if the noble Earl would go somewhat further than he had gone in the speech he had just de lievered, and promise that the Government would not only give a fair and candid consideration to any measure that might be proposed, but really take it in hand as a matter properly belonging to them, it would, under such circumstances, be desirable to meet such a proposition, and not proceed to a division. While he admitted that the question had been met by the Government in a kind and gracious manner, still he thought the noble Earl had in his speech gone rather farther than he might have done in pointing out difficulties which of course were to be urged against every important measure, no matter of what description it might be. He was not prepared to say that there were not difficulties in the way, for unquestionably there were difficulties; but if the Church of England laboured under disadvantages by the action of the Imperial Legislature, it was the duty of those who were the advisers of Her Majesty carefully to enter into a consideration of those difficulties, with a view to their abolition or mitigation. The noble Earl had said that the object of the clause was to give legislative authority to the Church. However, the noble Earl was 1065 much mistaken, for its only object was to give the Church of England that power to regulate its affairs which was possessed by every other religious denomination. On these grounds he would support the insertion of the clause; while, at the same time, he admitted that, if the Government would undertake a general measure, he would rather leave the matter in their hands.
The BISHOP of LIMERICK
said, that the clause would mix up the clergy and laity in an extraordinary manner, and that any disputed questions which arose would be determined by the majority. It was true the clause provided that such questions should be referred to the metropolitan; but the delay which would occur from the difficulty of communication would only tend to augment the angry feelings and passions that might have been excited, and would lead to discord and confusion. He (the Bishop of Limerick) could not, therefore, vote for the clause, and he would recommend his right rev. Friend not to press his Motion to a division, but to leave the matter in the hands of Her Majesty's Ministers, in the hope that this and other important questions might be considered under more favourable circumstances of quietness and peace. He was anxious beyond all things for the peace of the Church, and, therefore, under existing circumstances, he conceived that they were peculiarly called upon to act with the greatest circumspection.
§ The EARL of HARROWBY
regarded the clause rather as embodying a declaration of opinion than as a measure of legislation. He hoped his right rev. Friend would not press this clause on the present occasion, but that an opportunity would be afforded of fully considering the position of the Church of England, in the colonies. That question, he thought, ought to receive the careful consideration of the Government and the Legislature.
§ The EARL of CHICHESTER
admitted the unsatisfactory state of the law as it at present stood, and hoped something would be done to remedy it; but he doubted whether the clause proposed by the right rev. Prelate would produce the desired effect. He suggested that there should be a revision of the entire state of the law in the colonies, so far as the Church was concerned.
The BISHOP of DOWN and CONNOR
said, the simple question was, whether the proposition of the right rev. Prelate was sufficient to remedy the evils which were acknowledged on both sides of the House 1066 to exist. He was afraid that the clause as it now stood was not sufficient in itself, and he should should feel obliged to oppose it.
§ LORD REDESDALE
said, what the right rev. Prelate wished to do was simply to place the Church in the Colonies on the same footing as the Church of England was in the United States. He had heard nothing to induce him to withdraw his support from the clause; but at the same time he would put it to the right rev. Prelate, whether, under the circumstances, he would press the matter to a division?
§ LORD LYTTELTON
said, the question was one which he thought it was impossible any one except the Government could deal with in a satisfactory manner. He should wish to hear from Her Majesty's Government whether they were prepared to appoint such a commission of able lawyers and theologians as the right rev. Prelate had alluded to, with a view of inquiring into the condition of the Church in the colonies?
§ EARL GREY
said, after what had taken place that night, it was obvious that an inquiry should be instituted as to the best mode of proceeding on this question. He felt the deepest interest in the subject, but he could not undertake at that moment to give a specific answer to the question just put to him.
The BISHOP of OXFORD
hoped the noble Earl would tell them what sort of inquiry he proposed, and whether he intended it should take place this Session or not. He should like to hear something more definite than what he had heard from the noble Earl.
§ The MARQUESS of LANSDOWNE
said, there was a clear and practical grievance as regarded the Church in Australia, and with a full expression of that feeling, he thought it was hardly fair to press the Government any further; and it was unfair when the right rev. Prelate had so long given his attention to the subject—after he had been in frequent communication with the members of the Church in those colonies—it was too much when the right rev. Prelate believed he was fully prepared on the subject, to expect that at twenty-four hours' notice the Government should be ready with any definite plan. On these grounds, then, he ventured to think that his noble Friend had gone as far as any one could be expected to go without consulting the Government. He thought that his noble Friend had gone quite far enough when he stated that the question brought 1067 under the notice of the House was a fit subject for inquiry, without stating the nature of that inquiry. It would be impossible for him to do so then, for the grievance must be ascertained and investigated before it could be redressed, and before they could state what would be the practical nature of the remedy to be applied; but this he might venture to assure the House, that it would be inquired into at no distant period, that there would be no unnecessary delay, and that the inquiry would be rendered most effectual, whether conducted by a commission or otherwise.
§ The EARL of POWIS
observed, that the right rev. Prelate was entitled to expect that the noble Marquess would give the assurance which the House had heard, namely, that the subject should receive the consideration of the Government; and it was not too much to expect, on the part of the members of the Church of England, that the Government should take the matter in hand.
The BISHOP of OXFORD
suggested that a few words might be introduced declaratory of this, that the disabling Act which bound the Church in England should not extend to or bind the Church in the colony. If they agreed to that, he should not press his proposition any further.
§ EARL GREY
observed, that it was true that what the right rev. Prelate suggested could not be regarded as open to the same objection which a different Motion might have been; but he could not consent to place the Church in Australia on a different footing from that on which it stood in this country.
The BISHOP of OXFORD
, after the general assurance which he had received that the grievance was to be inquired into, said he should not press his Motion any further. He, however, earnestly desired that the Government would introduce such a clause as he had suggested.
§ Amendment, by leave, withdrawn.
§ House resumed; and to be again in Committee on Friday next.
§ House adjourned to Thursday next.