THE BISHOP OF LONDON,
in rising to present a Petition from Miss Angela Georgina Burdett Coutts, of 1, Stratton Street, in the City of Westminster, and of 59, Strand—Praying that in any Measure for amending the Law with respect to Bishops and Clergy in the Colonies of Cape Town, Adelaide, and British Columbia, full legal Effect may be given to Her Majesty's Royal Letters Patent constituting the Sees of those Colonies respectively; and that in case any of the Bishops of the said Sees shall surrender his Letters Patent, the Funds forming 504 the Endowment of his Bishopric may be applied according to the Intentions of the Founder thereof or else revert to the Founder,said, he felt convinced that the petition which he had to present was deserving of every consideration at the hands of their Lordships. The petitioner stated that so long ago as 1847 she contributed £17,500 to the fund for the foundation of the Bishopric of Cape Town, and that she was asked to contribute that money and did so contribute it for the establishment of a branch of the United Church of England and Ireland, as by law established in the Colony of the Cape. Her Majesty's Government for the time being were parties to the arrangement under which the money was paid, for certain letters patent were issued which embodied the proposition that the Bishop so appointed should be a Bishop of the United Church of England and Ireland, having jurisdiction over the clergy in the colony of the Cape, and exercising that jurisdiction in accordance with the law and the principles of the United Church of England and Ireland, and acknowledging the supremacy of Her Majesty the Queen. In the same year the petitioner was also induced to contribute the sum of £17,500 for the foundation of another bishopric in the colony of Adelaide, in Australia; and so late as the year 1859 she contributed £15,000 for the foundation of a bishopric in British Columbia, adding thereto the sum of £10,000 for the endowment of two archdeaconries in the same colony. It was on an appeal from the heads of the Church, sanctioned by the leading Members of the Government of this country, that the money was contributed for these purposes. The same purposes were recognized by the Colonial authorities, as shown by letters he had on the table before him: and the petitioner now prayed that the money, amounting altogether to £60,000, which she had so subscribed, might be devoted to the purposes which she had in view at the time of its contribution. It might be said that in case of any diversion of this money from its original purposes the Courts of Law were open to the petitioner; but a portion of the money had been conveyed to the bishopric of Adelaide, and invested in land for the endowment of the bishopric; and it was no light matter at once to carry on suits in Adelaide, British Columbia, and the courts at home. He was, moreover, speaking the sentiments of the petitioner when he stated that she did not desire to recover the money she had thus disposed 505 of, but that her present action arose from her conviction that great public principles were at stake, principles of the utmost importance to the Church of which she was a member, and to the Colonial Church. The petitioner was not alone in this view of the matter, because he believed that a noble Earl on the cross-benches (Earl Grey) was intrusted with a similar petition from a distinguished Prelate in the Colonial Church, who had spent eighteen of the best years of his life in working in the colony of Adelaide, and who had collected large sums of money from all quarters for the endowment of a colonial branch of the United Church of England and Ireland as by law established. In Adelaide he had raised large sums for the establishment of a college devoted to similar purposes. Now this Prelate felt that his intentions were likely to be frustrated, and that his work would come to nothing by the transfer of those endowments to another object than that which he had contemplated. The petitioner, whose petition it was his duty that day to present, asserted in her petition that in contributing this money she had three objects in view, besides the general object of promoting the service of Almighty God and the spread of the pure Gospel of Christ in these colonies. These objects were that the Bishops should hold jurisdiction over the clergy in their respective colonies, that they should execute that jurisdiction in accordance with the law of the Church as it existed at home, and, thirdly, she conceived an integral part of the arrangement to be the acknowledgment of the Royal supremacy over the churches of which she was the benefactress. The petitioner did not say that she found any absolute certainty that the purposes of her foundations were to be set at nought; but a few years only had passed, the parties to the compact were many of them still alive, and the petitioner now found that difficulties were likely to arise in consequence of decisions of the highest Courts of Law, while the parties to whom she had looked for securing the proper appropriation of these funds were either disposed to assist in what she conceived to be a misappropriation of the funds or to stand by with folded hands. The grievance or wrong was of such a nature that he should be compelled to trespass upon their Lordships' indulgence by giving a short history of the circumstances. Their Lordships would remember that in the spring of the previous year a very painful case 506 was brought before the Judicial Committee of the Privy Council. A Bishop in one of those colonies had published works which, in the estimation of most religious men, both at home and in the colonies, were most dangerous in their tendency as likely to uproot the regard in which the authenticity and the genuineness of the Books of the ancient Scriptures were held. He was not going to enter into any theological discussion, but he desired to say that he was one of those who, when the subject was first mooted, believed that the evils resulting from those works would be greater than their author ever contemplated. He had from the first expressed a fear that the author of those works would not be able to stop in the dangerous career to which he had committed himself. The case, however, was disentangled from all theological discussion. Bishop Colenso had not adhered to the intention with which he was understood to have come to this country—namely, to divest himself of an office, the duties of which it seemed very difficult for him to execute—and the matter consequently was brought before the Courts of Law at the instance of the Metropolitan, for whose conduct in the course of the proceedings every allowance was to be made when the difficulty of the circumstances in which he was placed was taken into consideration. Many intricate questions presented themselves; but when the matter came before the highest Court in England that had cognizance of such questions, every thing was disposed of in the general question, whether the letters patent purporting to confer power upon the Metropolitan of Cape Town were or were not effectual for that purpose; and it appeared from the effect of that decision that these letters patent were wholly inoperative, and that those which had been granted to the petitioner Bishop Colenso, were as invalid as those of the person petitioned against, Bishop Gray. The effect of the decisions of the Privy Council in this case, and in that of "Long v. the Bishop of Cape Town," was to introduce much confusion among the Colonial Bishops with regard to the position in which they were placed, and it was possible that the purpose for which this money was contributed might be altogether frustrated. It would be the height of rashness for him (the Bishop of London) to express any opinion upon the effect of those legal decisions; but Mr. W. M. James, a Counsel who had devoted considerable attention to this subject, in giving his opinion, said— 507I have satisfied myself that the disturbance of men's minds on this subject has been produced by a perverse misapprehension of the decisions in the Privy Council. As long as the Colonial Church is maintained as a branch of the Anglican Church under the supremacy of the Crown, it will possess ample power for the maintenance of discipline, doctrine, and moral conduct in its Bishops and clergy. The decisions of the Privy Council have left untouched the power of the forum domesticum of every Bishop over his clergy, and the power which, by the constitution of the Church in the Colony as a voluntary association, is vested in the Crown as the 'Supreme Governor, Ordinary, and Visitor.'On the other hand, there was the Attorney General (Sir Roundell Palmer's) very distinct expression of opinion that the consequences of those decisions were far more grave than the eminent Counsel to whom he had referred supposed. The Attorney General, in referring to these judgments, said—In the first place, I understand it to be determined that no legal dioceses are created by these letters patent in the colonies to which the question has reference. Secondly, that these letters patent create no legal identity between the Episcopal Church presided over by these Bishops, and the United Church of England and Ireland. Thirdly, that the letters patent do not introduce into these Colonies any part of the English ecclesiastical law. Fourthly, that they confer on the Bishops no legal jurisdiction or power whatever, and add nothing to any authority which the Bishops may have acquired by law or by the voluntary principle, without any letters patent or Royal sanction at all. There remains nothing, therefore, that the letters patent could do, except it be, as I understand, simply to incorporate the Bishops and their successors as a legal corporation, with all the ordinary incidents of a legal corporation. But even as to that, I see it stated, as part of the recent judgment, that these letters patent are not valid for the purposes of creating an 'ecclesiastical corporation, whose status, rights, and authority, the colony could be required to recognize.'Under these circumstances, their Lordships would perceive that there was a most material difficulty in the application of the money that had been contributed for the purpose of founding the bishoprics to which he had alluded. The question of the Royal supremacy was a very serious one. There was no such office as that of "Patriarch" in the Church of England; the whole authority of the Church in this country was exercised by the two Metropolitans of Canterbury and York, and in Ireland by those of Armagh and Dublin, whose Courts were perfectly independent of each other; so that there was no central power except that of the Queen in Council. Therefore, if the central power as residing in the Crown were deprived of its authority over the Colonial Bishops, the Church in the Colonies would 508 have no direct connection of a legal kind with the Church of England, being no longer subject to that controlling power to which our four Metropolitans at home were subject. On this subject the Metropolitan of India (Bishop Cotton), than whom no Colonial Bishop was better entitled to be heard on such a question, had written in an article which he (the Bishop of London) believed it was no breach of confidence to attribute to his authorship—It is monstrous to say that our Church ceases to be the Church of England when it is out of England or non-established. It is the old historical Church which Augustine planted at Canterbury, and which was reformed by English kings, prelates, divines, nobles, statesmen, and commons; the Church which is essentially of England, because its formularies are thoroughly impregnated with the English spirit, and have taken hold of the heart of the English people. It is the Church which, in its 37th Article, carries everywhere the doctrine of the Royal supremacy as a safeguard to the rights of its lay members, and whether formally established in any British colony or not, its Bishops are necessarily nominated by the Crown, and the Sovereign must retain (of course through some constitutional and duly authorized tribunal) the right of revising the graver ecclesiastical as well as civil sentences. What that tribunal is in the case of South Africa appears extremely doubtful (so far we agree with the Bishop of Cape Town's charge), but that is a question on which the legal intellect of England. will soon be exercised, and the precipitancy of the Metropolitan in refusing to wait for any interpretation of the law except his own, seems to us a lamentable instance of sic vole, sic jubeo; stat pro ratione voluntas. What we want is some fair tribunal which shall do justice on both sides, repressing the extravagances of latitudinarianism on the one hand, and of hierarchical absolutism on the other, for at present the two evils are playing each other's game. We earnestly pray that God's spirit may put it into the hearts of some wise and good men to devise such a solution of our embarrassments.If he (the Bishop of London) were called upon to go to one of the colonies, he should very much hesitate to divest himself of his connection with the United Church of England and Ireland, and place himself under a new law which he did not understand, and submit to be guided without appeal in his practice by the Metropolitan or diocesan of one of these colonial churches, not knowing with any great distinctness what was the doctrine which he was called upon to promulgate. Now, if that applied to him, it applied to a thousand of the clergy of the English Church, and he did not know how he could conscientiously advise any young clergyman to place himself in such a position. The petitioner, then, he might remark, was not singular in the appre- 509 hensions which she entertained, for at least two distinguished Colonial Prelates, it appeared—namely, the Bishop of Adelaide and the Metropolitan of India, agreed with her views; and, moreover, a letter had been addressed to the Secretary of State for the Colonies by the Church Missionary Society, which collected a very large sum of money every year for the support of Colonial clergy, expressing a very distinct opinion on the subject. That address stated—The Church Missionary Society is conducted in all respects in conformity with the principles and discipline of the United Church of England and Ireland. One of its standing regulations is that 'every congregation gathered from the heathen is to be settled and governed according to the constitution and discipline of the Church of England.' Upon the faith of this avowed and fundamental principle, the large income of £130,000 to £150,000 a year is contributed and is expended in supporting Christian teachers among the heathen and Mahomedan population in Her Majesty's Colonial possessions and in other territories. The Committee find that the constitution and formularies of the Church of England, with such reasonable modifications as local circumstances necessarily require, afford ample scope and guidance for missionary operations. The Committee fear, however, that the action of the Synod in Ceylon has already overstepped the constitutional limits of the English Church, for it has adopted a new form of clerical declaration and subscription, which is to bind the Bishop and clergy and their successors; and Her Majesty's Secretary for the Colonies is to be 'moved to make any future appointment to any ecclesiastical office contingent upon the acceptance of the said declaration, and upon an undertaking to sign it in Ceylon;' and the Bishop of Colombo was requested 'to require of all candidates for holy orders, and all applicants for ecclesiastical employment in the diocese, prior to their being ordained or licensed, the acceptance of, and signature to, the above declaration, as an act of agreement or contract between the said applicants and the Bishop, for and on behalf of the Church of this diocese.The Committee of this large Society conceived that declaration to be inconsistent with the principles and practice of the Church at home, and they felt that their funds were in danger of being diverted from the purpose for which they were subscribed. Moreover, he made bold to say, that many of the colonists themselves, retaining their attachment to the Church of their fathers, and desiring to worship in the same way, felt themselves placed in a most unenviable position by the late decision and the principles announced in connection with it; for while every denomination of Dissenters might freely form itself into a community in the colonies, they who desired the Royal supremacy as a pledge for the maintenance 510 of the law as it was administered at home were deprived of what they conceived to be an integral part of the system of the church they revered. He thought, then, he had shown the existence of a grievance which required very serious and careful consideration. So various and so complicated were the questions involved in the matter that they almost seemed to be deserving the attention of a Committee of their Lordships' House. He did not believe the full meaning of this decision of the Judicial Committee of the Privy Council was understood at present, or that it would be understood until a case, which involved the very question in debate, had been decided. This case was now pending in the Rolls' Courts, and which would probably be reviewed by some higher tribunal, and therefore he thought the matter would require very grave deliberation before any steps were taken whereby the petitioner and the other persons he had mentioned were deprived of the rights they conceived they possessed. No doubt it was absolutely necessary that the matter should receive legislative consideration, but he trusted he might be allowed to press upon the noble Earl who presided over the Government that in any legislation on the subject great care should be taken to secure the colonists in their right to remain members of the Church of England and Ireland if they desired to do so. When colonies were separated from the mother country they necessarily became independent in ecclesiastical as in all other matters; but while they remained connected with the mother country, there was an appeal in all civil matters to the courts at home, and so the same connection of the Colonial Church with the mother Church should be preserved till the day arrived when the colonies became independent States. If they were to have this absolute independence in matters ecclesiastical, it would be time enough to give it when they were perfectly independent in matters civil. He would urge the noble Earl also to be careful not to act on a misunderstanding which seemed to have got abroad—namely, that the late decision of the Judicial Committee applied to all the Colonial Churches; whereas of the forty Episcopal Churches that had been founded in the colonies there were only eighteen to which it distinctly applied; and, because there were difficulties affecting these eighteen, it would be a great mistake to reduce the whole forty to the same condition. Nay, there was great doubt whe- 511 ther all of these eighteen were affected, for there were four distinct classes of colonial bishoprics—first, those whose letters patent were granted under the authority of an Act of the Imperial or Local Legislature; secondly, those whose letters patent were granted by the Crown when there was no Colonial Legislature, in which cases their validity was admitted on all hands even to the extent of coercive jurisdiction; thirdly, those which, though granted informally, had been accepted by the Colonial Legislatures; and lastly, those in which according to the principle of the decision of the Judicial Committee there was a complete failure. Of these last there were, he was informed, only six. Now, it was quite unnecessary, and it would be very rash, on account of difficulties with six, or even with eighteen, to alter the constitution of all the other Colonial Churches, which existed without the necessity for any such alteration. He ventured to express his sense of the great importance of preserving the Church of England in the colonies. Care should also be taken that the surrender at all events of the revenues which were devoted in the first instance to the Church of England should always follow severance from that Church. He held in his hand a paper which put this point very tersely, and he could not do better than quote it—If the Bishop and clergy in a colony feel themselves at liberty to secede from the Church of England, and to form a free and independent Church, they need neither Imperial nor Colonial Legislation for this purpose. Any proposal, therefore, to legislate for these free Churches was very much like an attempt to legislate for the Wesleyan Methodists. Legislation in such matters must apply to a Church by law established, and not to these free Churches, which in the eye of the law must be regarded like any Dissenting body. To regulate these Churches, therefore, was as great an invasion of the freedom of the colonists as any that was ever contemplated by issuing these letters patent. Legislation," the paper continued—"Can only be required to enable such an independent Church to retain the property and prestige of the United Church of England and Ireland in its state of separation. But such legislation would be unjust to the Church at home, as well as to those members of the Church of England in the colony who may desire to remain a branch of the Church of England. It would be analogous to the case of Wesleyan Methodists, in any colony, seeking Imperial or Colonial Legislation to alter the poll-deed which is the foundation of the Methodist Society, while they retained the property held under that deed. The ministers of the Church of Scotland in India, who resolved to become a 'Free Church,' acted an honest part in resigning their churches and ecclesiastical property to members of the Church 512 of Scotland sent from home, and they themselves raised new establishments.He would also urge that great care should be taken not to injure the Church at home through the Church in the colonies. Now, there were certain well-considered Acts of Parliament regulating the connection between the Colonial Churches and the Church at home. These Acts, among other things, test in the two English Metropolitans and the Bishop of London certain powers with reference to the ordination of the clergy of the Colonial Churches. These powers were not conferred on them without grave and serious consideration, because it was deemed that the responsibility in this matter ought to devolve on those who held the sort of position which they occupied. Certain other laws were also passed after grave consideration as to the relation between the Colonial Churches and the Church at home conferring certain privileges and at the same time enforcing certain exclusions as to the clergy in the colonies in reference to the Church at home. He therefore hoped that in legislating on the subject they would not tamper with those Acts without substituting something equally good in their place; otherwise, if there was a profusion of those free and independent Churches scattered over the world, and if their clergy were entitled to minister in our dioceses at home, very grave difficulties might be introduced at home by what had been done abroad. He must apologize to their Lordships for the length at which he had spoken; but he had done so because he believed the subject was one of deep and vital importance. He did not wish it to be said that, during his Episcopate, the whole of the good work which had been commenced by his predecessors—by Bishops Slat, Howley, and Blomfield, had come to the ground. He did not wish it to be said that the large funds which had been collected for the maintenance of the United Church at a distance had been appropriated to any other purpose than that for which it was intended. He believed the existing connection, or connection which was lately supposed to have existed between the Colonial Churches and ourselves, was beneficial at once to the colonies and to the Church at home. Sure he was there were no better subjects in the colonies, none more likely to adhere tenaciously to the mother country to the last, than those who considered themselves members of the United Church of England and Ireland; and whatever steps were taken 513 to obviate the difficulties which had been raised regarding these funds, he did trust they would be able to maintain the Colonial Church as much connected with the mother Church at home as it was a few years ago.
said, that a more meritorious or liberal person than the lady whose petition the right rev. Prelate had presented did not exist. The many thousands she had devoted to the Colonial Church by no means represented what she had expended to relieve the wants and provide spiritual instruction for those at home. Her benefactions were alike extensive, generous, and judiciously applied. The subject which the right rev. Prelate had brought before their Lordships no doubt required their gravest consideration. The judgment of the Judicial Committee of the Privy Council had undoubtedly excited great attention and called forth much remark; but it was a judgment according to law, and no other judgment could have been pronounced. This was exactly one of the cases to which he alluded the other day, in which he thought it would be beneficial if the Judicial Committee had the power of calling in the assistance of a certain number of the Episcopal Bench to give their opinion on the doctrine and discipline of the Church. He believed, in that case, the judgment might have been the same—probably would have been the same; but he was quite certain it would have given more satisfaction, especially to the Church. The subject required full investigation, and that they could not stop without legislating upon it he held to be perfectly true. He thought that in the colonies, as in the mother country, a Bishop ought to be subject to the Metropolitan.
THE ARCHBISHOP OF CANTERBURY
wished, in the first place, to express his great satisfaction that his right rev. Friend had brought forward this subject, inasmuch as it was most desirable that those who had devoted their attention to it should deliver their opinion and help to solve the most difficult problem which for some time had been brought before their Lordships. Before he proceeded he begged leave to express his cordial concurrence in the admiration which had been expressed for that distinguished lady whose petition had been presented. He was quite sure of this—that as long as the Church of England had any history, so long would her munificence be recorded in it. The 514 problem to be solved was this—how, under existing circumstances, after the two recent decisions of the Judicial Committee of the Privy Council, the connection between certain Colonial Churches and the mother Church could be maintained. The mode proposed by his right rev. Friend was this: — That by legislative action they should pronounce that those Churches were in the same connection with the Established Church of England in point of doctrine and discipline as they were before those decisions. Now he thought it would be very difficult to prove that this could be the case. In order to make that clear, he would read one or two short extracts from the recent judgments. In the case of "Long v. the Bishop of Cape Town," p. 14, it was said—The Church of England, in places where the Church is not established by law, is in the same situation with any other religious body; in no better, but in no worse position, and the members may adopt, as the members of any other communion may adopt, rules for enforcing discipline within their body which will be binding on those who expressly or by implication have assented to them.Again, in "Dr. Colenso v. the Bishop of Cape Town," p. 7, it is said—The United Church of England and Ireland is not a part of the constitution in any colonial settlement, nor can its authorities or those who bear office in it claim to be recognized by the law of the colony otherwise than as the members of a voluntary association,Once more—We adhere to the principles laid down in the case of Long v. the Bishop of Cape Town,' p. 10. In the case of a settled colony the Ecclesiastical law of England cannot be treated as part of the law which the settlers carried with them from the mother country.Now, after these declarations it seemed to him quite clear that at the present moment these Churches were severed from the United Church of England and Ireland, so far as the supremacy of the Queen was concerned. Then came the question whether the Legislature of this country had power to carry the supremacy of the Queen into those colonies. But he had been informed that the Imperial Legislature of this country had no more power to deal with the Church in the colonies than they had to deal with any Dissenting body. Then if the Royal supremacy was not to bind these Churches to the Church of England what was the alternative? He firmly believed the only alternative was the voluntary connection which these Churches had formed, binding them most 515 solemnly to the Church of England in regard to doctrine as expressed in the Articles and Formularies of the Church. He believed that was the only real security. He had a very extensive correspondence with the Colonial Churches in all parts of the world, and during the last year he had received from all parts the most firm and reiterated assurances that their most anxious object was to secure and cement that connection with the Church of the mother country which had been so much disturbed by the recent decisions. He knew that Bishop Gray took the best legal advice he could get in England and Cape Town before he proceeded against Bishop Colenso. Moreover, he did not act solely on his own judgment, he had the consent and concurrence of three of his suffragans in respect to the course pursued. Therefore, it was scarcely right to impute any undue haste or exercise of arbitrary will to Bishop Gray. Nobody could join more heartily with his right rev. Brother who had just addressed their Lordships than he did in entreating their Lordships to deal carefully with this very grave subject. It involved the interests of millions, he might say, of Churchmen throughout the world, and if they proceeded rashly, they might do very serious harm. Whether or not the proper course to adopt would be to appoint a Committee of that House he could not say; but, firmly believing that the present matter was little understood, he thought that it would be rather premature to rush into legislation in reference to it.
said, he agreed with the most rev. Prelate (the Archbishop of Canterbury) in thinking that the question was one of extreme importance and difficulty. He did not intend then to enter into the general question, but there was one point to which he wished now to call their Lordships' attention with reference to the power of the Imperial Parliament over the colonies. He fully recognized the very great respect which was due to the Colonial Legislatures created in various parts of the Empire; but he maintained that if the Empire was to be kept together, the Imperial Parliament must be considered as possessing a supreme authority over these Legislatures in all cases, and as being the sole judge when it might be necessary to use this authority, for the general interests of the whole Empire. That was the doctrine of Mr. Burke, and of the great men of former days. Even 516 when they most strenuously resisted what they considered to be the unjust and unwise exercise of the authority of the mother country over the colonies, they never ceased to assert the authority itself. This, he thought, had been lost sight of in later days, and in both Houses of Parliament rash language had sometimes been used in reference to it. He thought what had now been said by the most rev. Prelate was open to objection on this ground, and implied a denial of that supreme authority in the Imperial Legislature, which bad not only been uniformly maintained by our greatest statesmen, but had been practically exercised by Parliament whenever a case arose which in its judgment called for its interposition. It was not so many years ago when, in a case of necessity, the Imperial Parliament thought it right to suspend the legislative functions of the independent Legislature of Lower Canada, and to give almost absolute power in that colony to a Governor and a Council nominated by the Crown. Again, no doubt was entertained about the supreme power of Parliament, when an Act was passed in this country abolishing slavery in all parts of the British dominions; and no one doubted at the present moment that if the Legislature of the Cape of Good Hope or the Legislature of Canada wished to establish slavery, they would be precluded from doing so by the terms of the Act of the Imperial Parliament, that Act by which slavery was abolished throughout the Empire. Further, he believed that in the present case it was possible for Parliament to exercise that supreme authority in a manner which, without giving any just cause of offence to the Colonial authorities, would at the same time maintain the strong connection hitherto existing between the Colonial and English Churches. No doubt, the manner of effecting the object would have to be considered with great care, so that the internal affairs of the colonies might not be unnecessarily or lightly interfered with, but when Colonial Bishops and clergy possessed certain rights in this country, Parliament, on the other hand, was justified in requiring that the conditions on which those rights were granted should be fulfilled. He, for one, should view with jealousy any system by which colonial appointments of this kind would be left free from control at home, because he knew on points such as had been referred to, passions ran high in the colonies, and he feared if the supre- 517 macy of the Crown was once abandoned, that little by little some of the Colonial Churches might depart from what used to be considered the vital principles of the Church of England. The right rev. Prelate who presented the petition had suggested that it might be desirable that this question should be inquired into by a Committee of their Lordships' House. He entirely concurred in that suggestion, because it seemed to him that there was at present so much doubt as to the real effect of the recent judgments on the present position of the Colonial Bishops, and as to the nature of the legislation required, though some legislation was undoubtedly necessary. He could conceive no more useful subject for an inquiry by a Committee of their Lordships' House, who would have the assistance of some Members of the right rev. Bench.
§ EARL RUSSELL
said, he would not have addressed their Lordships on this subject had it not been for the observations which had just fallen from his noble Friend. He considered the speech of the most rev. Prelate (the Archbishop of Canterbury) so wise and temperate, and so likely to lead to harmony on this subject if anything could, that he should have thought it better to have let the matter rest with the most rev. Prelate's observations; but his noble Friend (Earl Grey) had spoken as if there was really any doubt as to the supreme power of Parliament over Colonial Legislatures. There could be no doubt that in a case of necessity the Imperial Parliament had such power; but it was a power which ought not to be exercised without a clear necessity. It was also a power which should be exercised with great caution — they must be careful not so to exercise it as to aggravate and not to assuage passions. It was, no doubt, quite natural that a lady who had shown so much liberality and attachment towards the Church of England should suppose that the law of that Church would prevail in the colonies in question, and that she was perfectly safe in giving the endowments which she had conferred. Of late years, however, considerable differences of opinion had arisen in those colonies, and unhappy disputes had taken place which had been submitted for settlement to our Courts of Law. The decision recently pronounced by the Judicial Committee of the Privy Council in one of those cases showed the danger and 518 the delicacy of the ground on which their Lordships were invited to tread. The right rev. Prelate himself (the Bishop of London), in bringing the subject under their Lordships' notice, quoted the authority of an eminent lawyer taking one view of the matter, while an almost diametrically opposite view was taken by no less a person than the Attorney General. There being so complete a difference of opinion between lawyers, it behoved their Lordships, he thought, to be very cautious that they did not deal with the question otherwise than with the most thorough and careful consideration. If any proposal with respect to it were made either by the Government or by a private Member of the House, it would, it seemed to him, to be only right that it should be submitted to a Select Committee, composed, to as great an extent as might be convenient, of noble and learned Judges and eminent Prelates. He must, at the same time, observe that he had always understood that, although the Crown might govern the colonies by statute, or by means of a Governor and Council, yet that when the Crown had once given to a colony a representative Constitution, it was not in its power to withdraw that Constitution. He trusted, he might add, that the observations made by the right rev. Prelate might have the effect of leading to some satisfactory solution of the question.
THE BISHOP OF OXFORD
thought his noble Friend who had spoken last but one (Earl Grey) had somewhat misunderstood what had fallen from the most rev. Prelate near him, who spoke not of the legal incapacity of Parliament to deal with questions such as those under discussion, but of its moral incapacity after what had passed to remedy existing inconveniences in particular colonies by creating there, in point of fact, a Church in connection with the Church of England. In the belief in the existence of that moral incapacity he quite concurred with his most rev. Friend, on the very simple ground that when Parliament gave to those colonies Legislatures of their own, it, while still reserving to itself its supreme Imperial power to overrule the decisions of those bodies, bound itself morally not needlessly to interfere with their action. One of the questions at issue was the creation of Ecclesiastical Courts in the colonies, and in reference to these courts the question really at issue was what was meant by the Queen's supremacy. The supremacy of the Queen in spiritual 519 matters in this country depended on those Acts of the Legislature which transferred that supremacy to the Crown in the first instance from the Pope, who claimed the right to exercise it, and the meaning of that transfer was that every court, ecclesiastical and civil, held in this country should be held in the name and under the authority of the Sovereign. A Bishop held a court, therefore, not as a successor of the Apostles, but by licence from the civil power; and every such court was as much the Queen's court ecclesiastical as other courts were Her Majesty's courts civil. It followed, then, that every single ecclesiastical court in England from the lowest to the highest was liable to have its ecclesiastical decisions revised by the Queen's courts; and that supremacy of the Queen was not a floating unknown power, capable of being abused at one time to oppress the subject, and vanishing at another time into nothing but a creation of the law, resting within legal bounds on the law for its strength. If, then, the Queen's supremacy was to be established in the colonies in question, courts must, first of all, be created through which the supremacy of her officer—be he archdeacon or Bishop—should be exercised. To permit it to be exercised by an individual without the intervention of a court would be most un-English. The first step, under those circumstances, must be to establish courts ecclesiastical in the colonies, from whose decisions appeals might be made in the ordinary course; thus setting on foot the whole of that machinery which belonged to the Established Church — that was to say, a favoured class of religionists, to whom the nation gave certain advantages, and whom it guarded with certain strong limitations. Now, that being so, he maintained with his most rev. Friend, that, after what had taken place, it would be morally impossible for the Parliament of England to dictate to the colonies so far as to say that they must have such a favoured religious body. He, at the same time, admitted the existence of the difficulty to which the right rev. Prelate referred, and was, perhaps, even more strongly alive than he was to the necessity for some legislation with respect to it. The decision of March last went to show that there may be some question as to the validity of the marriages and other acts performed by the clergy ordained by Bishops who were said to exercise no legal jurisdiction in those colonies and to possess no power to ordain; and the Government was therefore bound to in- 520 troduce some measure with a view of providing a remedy for that state of things, although they were not, he thought, to blame for declining to proceed in the matter with undue haste. A good deal had been said of the importance of maintaining the connection between the Church in the colonies and the Church at home, and he (the Bishop of Oxford) felt the necessity of maintaining that connection as strongly as any man. But how could it be done? He listened with greedy ears to the remarks of his noble Friend on the cross-benches (Earl Grey) when he said that it would be easy for the Imperial Legislature to secure the continuance of this union; but, although he said how easy the way of doing so was, he did not describe it; he kept it a secret to himself. Having given the utmost attention to the whole of the "ins" and "outs" of the subject, he could see no way whatever consistently with the pledges which the Imperial Parliament had given, by which it could by any facile and easy legislation maintain the connection to which he was referring. Such, however, was his confidence in the Church of this country, which had spread throughout those distant settlements and colonies in their English character, and in the love and reverence which the daughter Churches felt for the mother Church, that he was fully persuaded nothing but an attempt to overbear their rights would sever the union at present subsisting. He believed that if Parliament would trustingly remove by law the difficulties which the law had created, and then leave the Church at liberty to maintain its own unity, none of the dangers which now menaced it would exist. The whole of the history of the Church showed that it was not by the enactments of Parliaments, but through the undying faith of the Church itself that it had maintained its unity. He contended that it would be most unfair to subject the representatives of the Church in the colonies to restraints without giving them corresponding advantages. At home the advantages to the Church as well as the advantages to the State from the union of the two were on both sides, he believed, incalculable. He had no wish to see any alteration of the fundamental relations now existing between them. The supremacy of the Crown as exercised in England was the great safeguard of the National Church against the intrusion of a foreign Power—as such he valued it most highly; but it was a wholly different thing to inflict on a 521 body of religionists restraints which accompanied gifts and then to withhold the gifts. In the colonies at the present time a great struggle was going on between many different kinds of religionists. Rome was planting her communion freely in every one of our colonies, and every form of Protestant dissent was multiplying itself as it could find adherents; and what would be the result if on the representatives of the Church the Imperial Legislature inflicted obligations and imposed fetters from which every communion around them was free? The body thus fettered would be unable to do its own work. But if they did not leave them free to do all that they could do for the public, they ought to know enough of the spirit of Englishmen to feel sure of this, that they would not be content to remain thus fettered. Therefore, he said, let any legislation upon this subject bear this upon its front—that it seeks to inflict nothing, that it seeks to settle for the colonists nothing at all, and that it contents itself with setting free a particular body of religionists, the representatives of the Church at home, from the trammels that belong to a different state of things—a state of which the interposition of our law had taken from them the advantages that had accompanied the restrictions. There he thought that legislation should stop. Without entering upon the question whether it were for good or evil, he must for his own part say that he deeply lamented that the colonies of Great Britain had sown the earth with democratic institutions. He had protested years ago against the steps which led to this; but now it was an accomplished fact. In taking those steps, they in effect took away the Queen's supremacy from those colonies; they were not taking it away now, it was a thing already done. He deeply regretted that the shock which had been given to the munificent founder of these colonial bishoprics was calculated to do great harm. He believed that in that noble lady's life there had been an example set to those who had the use of God's gift of wealth, that it should be spent for Him, which he believed was enough to seed a generation with the noble desire to copy her example; and therefore he felt that it was deeply to be lamented that there should have been anything in legal decisions or elsewhere which should make such a person feel that what she gave for one thing had been to a certain extent diverted to another. It was not only on her account that he lamented, but be- 522 cause he felt that her example shaped, in more instances than they could conceive, the tendency to follow with like acts. But this was not the real question before them. The real questions brought before the House were—first, a change having passed over a certain number of our colonies, were the grievous inconveniences consequent upon that change to be left entirely unredressed? Secondly, was redress to be postponed upon the fancied notion that after a course of time it would be possible to act more prudently than now? Thirdly, in redressing them, was an attempt to be made to establish one single class of religionists as a favoured and exclusive class in the colonies? His answer was that nothing could be gained by delay, and that their Lordships were bound, well and carefully, as statesmen and as churchmen, to look at once into the subject, and at once to give redress to the evils which could be proved. If Her Majesty's Government were prepared to say that they thought it expedient, before that House was called upon to legislate in the matter, to appoint a Committee to inquire into it, he would render all the assistance in his power towards effecting the object in view. He believed that the suggestion of a Committee was worthy of the consideration of the House. Legislation, when it reached their Lordships, would not be grappled with as it should be unless the general mind of the Church, as well as of the House, had been to a very considerable extent more informed upon the subject than was the case at present. If the evidence of the Colonial Bishops now in the country, and the evidence of the great religious societies which were investigating the matter, were to be taken by a Committee of that House, the way would be paved for the intelligent consideration of any Bill on the subject that might be brought up from the other House.
§ LORD LYTTELTON
said, he was not prepared to admit the soundness of the law as laid down in the two celebrated judgments which had been so much referred to, for considerable doubts had been thrown upon their correctness. But there was a distinction between the law as it actually was, and the law as it ought to be, and he believed that the judgments in question were quite in accordance with public opinion. It was distinctly laid down that the Church of England was in no sense an Established Church in our colonies, and the effect of this was that the 523 Royal supremacy could not exist in the colonies in the sense in which it existed in England. Although the colonies were part of the Queen of England's dominions, the Colonial constitutions and laws did not in all respects agree with ours. So, he thought, the Colonial Churches could be in perfect union and substantial agreement with the Church of England, although they were not in all respects constituted alike. It would be best, in his opinion, if the colonies had entire freedom in matters ecclesiastical as well as civil. On that broad ground, then, and without regard to the personal considerations which entered into the case, he was of opinion that the prayer of the petitioner, resting as it did entirely upon the alleged supremacy of the Crown, which he believed could no longer he maintained, could not be acceded to by their Lordships' House. He agreed with those who had expressed the opinion that some legislation preceded by inquiry was needed; and perhaps a Royal Commission would be desirable. But he was in favour of inquiry, not because he felt any doubt existed as to the general principles upon which they should proceed, but because the law at present in existence was not clearly ascertained; and he thought the better course would be to ascertain what the law was and to make it intelligible before Parliament proceeded to legislate afresh upon the matter.
desired to say a few words with respect to the obligations which, in his opinion, rested upon the Government. He thought they were serious and peculiar in character, and one of them was personal towards the distinguished lady whose petition was under discussion. Miss Coutts made the magnificent donations which had been referred to in the full belief that the patent granted to the Colonial Bishops was perfectly and absolutely legal. Her belief was supported by the highest legal authority, and Her Majesty's Government had no suspicion of the invalidity of the patents issued. It seemed to him, therefore, that when it was found that the Ministers who had issued those patents had no power to do so, but were acting illegally in administering them, it was incumbent on the Government to promote such legislation as would place the question of the validity of the patents on a sure foundation, to the end that a wrong should be set right, and that the petitioner should be relieved from a position of uncertainty as to whether her magnificent donations 524 were being devoted to the object she had in view, or diverted to serve some purpose for which she had no care, or in the attainment of which she had at all events not that gratification which she had a right to have. It might be that no legislation was possible, though on that he differed entirely from the right rev. Prelate. He believed for several reasons that legislation was possible, and for this reason above all, that he had yet to learn that a single Colonial Legislature would object to such legislation. And he believed that the supremacy of the Crown still existed in these colonies to which England had given representative Constitutions; it was made apparent by the enactments of the British Parliament on colonial subjects; but he admitted that it should be exercised only with very great discretion and under circumstances of peculiar pressure. In offering the objection to action in the matter by saying that the supremacy of the Crown was extinct in the colonies noble Lords and right rev. Prelates were conjuring up a shadow which had no substance. No Colonial Legislature had taken action in the matter. The legal difficulty was ours, not theirs. It had not been said by the Colonial Executive, "These patents which you have given are an intrusion upon us and upon our authority; we wish to have our own Ecclesiastical Courts." If such a course had been taken by the colonists, then, no doubt, the British Parliament would have to consider whether the question was of sufficient importance to demand that Parliament should come into collision with the Colonial Legislature on account of it. The right rev. Prelate (the Bishop of Oxford) had talked of fetters and chains and obligations. He protested against the use of such metaphors as descriptive of things which he as a layman regarded as great safeguards and blessings to the Church of England. Their Lordships must remember that the Church of England was not dependent on the Thirty-nine Articles, the Prayer Book, or the rubric, but that it was bound up in the State and the supremacy of the Queen, and was upheld by every layman of the Church in accordance with the lights which he possessed. The suggestion for a Select Committee was, in his opinion, a good one. It would not be wise to leave the matter entirely in the hands of the right rev. Prelates; the subject pre-eminently concerned laymen. Protesting, in conclusion, against much that, had been 525 said during the discussion, he expressed a hope that legislation, which he was convinced would be found easy, would tend to settle the question in such a way as would bind in close communion the Church of England as established at home and in the colonies.
THE ARCHBISHOP OF YORK
gave notice that on Thursday next he would move that a Select Committee of their Lordships' House be appointed to consider the connection existing between the Colonial Churches and the Church at home; and that he would also move that the petition presented in behalf of Miss Angela Burdett Coutts should be referred to the same Committee.
THE DUKE OF ARGYLL
wished to say, in reference to a remark of the noble Lord (Lord Houghton), that the laity in the Church of England ought to learn to defend themselves. In the Episcopal Church in Scotland and the United States the laity and the clergy were mixed, and the laity were enabled to defend themselves. That was what the colonies required, and what, he believed, could not be maintained by law, although it might be maintained by the action of the laity.
§ Petition ordered to lie on the table.
§ Earl GREY presented Petition praying that the Endowments of the See of Adelaide may be preserved, so that the intention of the Founder and other Benefactors of the existing See in South Australia may be secured; of The Lord Bishop of Adelaide; read, and Ordered to lie on the Table.