TLTT
PUBLIC RECORD OFFICE
Reference
C.O. 8
885
3 PUBLIC RECORD OFFICE, LONDON
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No. 12.
The Duke of NEWCASTLE to Governor Sir D. Daly.
(No. 87. South Australia.)
SIR,
Downing Street, December 26, 1861.
I HAVE received your predecessor's despatch of the 19th September, 1861, respecting the proposed legislation for delining the position of the Church of England in South Australia.
I enclose, as Sir R. Mac Donnell desired, copies of the recent Canadian Church Acts. You will not fail to observe that these laws are avowedly passed because the Legislature of Canada deem them to be called for by the principles of religious equality which are jealously guarded in that province.
I also enclose the copy of a despatch which I have addressed to the Governor of New South Wales respecting a question of ecclesiastical jurisdiction which has arisen in that Colony. I request that you will communicate a copy of it to the Bishop of Adelaide, who, if he is not already aware of the circumstances by which it was elicited, can easily procure a full account of them from the Bishop of Sydney.
With regard to some of the details of the draft Act prepared by the Bishop, I would observe, first, that it would, in my opinion, be better to avoid any phrase or provision which would appear to claim for an officer, Committee, or Board of the Church of England the character of a legally constituted Court. Proceeding upon those principles of religious equality which should on the present occasion be kept steadily in view, the steps taken by the Church authorities for the ejection of a delinquent clergyman, though different, of course, in spirit and in details, must rest on the same legal foundation as those adopted by the Chairman or Board of Directors of an incorporated Company to get rid of a delinquent official. I do not apprehend, therefore, that the Legislature could fairly be asked to invest such a Board with the power to examine witnesses on oath.
On the other hand, the provision inserted by the Governor that the bye-laws of the Synod should be approved by the Governor in Council appears to me equally unsuitable to the position of a voluntary Church; it seems, in fact, to create or recognize that very relation between Church and State which, under the circumstances of South Australia, the colonists are desirous to exclude, and the Church wisely abandons. The power of disallowing these bye-laws, if retained at all by the Crown (which in Canada is not the case, should be reserved not to the Colonial Govern- ment, which is bound to disclaim any peculiar relation to the Anglican Church, but to the Sovereign, who, in her Imperial capacity, and under Imperial law, still retains such a relation,
With regard to the general question, I regret exceedingly the appre hended indisposition of the South Australian Legislature to give the English Church in a corporate capacity those facilities for internal action which have been given in Victoria and Canada, and without which it is difficult to give full development to the right of holding property.
The main object of any cuactment having exclusive reference to Church property must be. I imagine, to enable the different functionaries of the Church of England to enjoy that property il attached to their offices, or to administër it if held by them in trust. And if every such functionary were irremovable, nothing more, perhaps, would be required.
But this is not the case, and it is therefore requisite to provide for the removal of these officers from their houses, and the stoppage of their incomes, when, in accordance with the rules of their Church, they have forfeited their offices. This, however, can only be done by enabling the community of which they are members to prescribe their duties, to define the circumstances under which a breach of those duties shall involve a dismissal or suspension from office, and to declare the authority by which such a dismissal or suspension shall be pronounced,
It may, no doubt, be said that all these objects have been effected by, a voluntary arrangement in the case of the very effective organisation of the Wesleyans, and that a similar attempt has been made in the diocese of
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Adelaide itself. It is not very clear, however, how far this attempt will prove successful, both because (as matters now stand) no future Bishop will be bound to acknowledge this voluntary arrangement, and because it cannot be predicted with certainty how the Supreme Court of Adelaide may give effect to a private agreement entered into by the members of a body not the offspring of agreement, but already recognized by the laws of the Empire and impressed with certain characteristics of which some are irremovable by Colonial legislation, and others, in the absence of that legislation, may be held to be imported into the Colony with the body of British law which accompanied the Colonists.
The Church of England, therefore, lies under some peculiar difficulties in regard to which (so far as they are removable) she has a peculiar claim to relief. It is not, however, my wish to express an opinion upon the extent of these peculiar claims. I wish rather to recommend to the Legislature the legal incorporation of the Church of England as a step towards a general amelioration of the law, an amelioration of which, it is true, the necessity has been first felt by the Church of England, but of which the convenience will, as 1 believe, be very shortly appreciated and shared by other religious communities.
The time is past when the growth of any of these communities can be an object of jealousy in a British colony, where free discussion exists, where no religious body can claim any exclusive privileges, and where the line of demarcation between religion and politics is well understood.
They must be viewed by the Civil power not as formidable rivals, to whom the clements of strength are to be parsimoniously meted out, in such proportion as will support their existence without giving a dangerous development to their activity, but as the welcome allies of order and civilization-to be trusted freely with every attainable facility for healthy action (except political power or privilege), in the confidence that the good which they have in common cannot be too generously encouraged, while their distinctive errors or defects can scarcely fail to control and neutralize each other without notice from the Civil power. And all this I apprehend is remarkably true of a new country in which, dissevered as it is from the refining effects of old civilization, the elevating influence of religion and religious fellowship are even exceptionally necessary.
Thus viewing the claims of voluntary religious communities on the Colonial Body Politic, I recur to the analogy to which I have referred in a previous despatch of commercial incorporations.
It is not long since the English 'Government was very chary of granting corporate powers. The concession of such powers-then considered as exceptional-to a body of commercial adventurers was viewed in this country with the same kind of indefinite apprehension of evil which a similar grant to a religious community appears to excite in the Colony. And large bodies of persons united for a commercial object were thus compelled (like the Anglican Diocese of. Adelaide) to remain in the eye of the law a mere unincorporated association of individuals, and were consequently subjected to the intolerable inconvenience, insecurity, and litigation, which were imposed upon such unwieldy masses by the application of the ordinary law of co-partnership. The extent of these inconveniences I need only indicate; most persons conversant with commerce must distinctly remember them.
But recent legislation has taken a more liberal course. Within the last seventeen years a series of Statutes have been enacted, giving the greatest practicable extension to the principle of mercantile incorporation: not because such incorporation could be shown to be indispensable in every case in which it can be now obtained, but because it is an evident source of power and convenience, and because it is a plain advantage to place that power and convenience at the command of those who are struggling to enrich themselves, and if they succeed in doing so will also enrich the community of which they are a part. There is no reason to doubt the beneficial effect of this liberality. The privileges which are thus made accessible are eagerly sought; the Legislature has always been called upon to advance and never to recedy in the course which it has chosen, and the oppressive consequences of the law of co-partnership which these
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