Trinity Papers No. 29 - ‘To Strive, To Seek, To Find, and not To Yield ...'

‘To Strive, To Seek, To Find, and not to Yield’ The Making of the (Victoria) Church of England Act 1854 by Professor Robin Sharwood, am

The Sydney Smith Lecture for 2004, delivered at Trinity College on Wednesday 24 November, 2004 by Professor Robin Sharwood, AM, under the joint auspices of the Anglican Historical Society, Diocese of Melbourne and Trinity College, University of Melbourne

© Robin Lorimer Sharwood

Trinity Papers Number 29 – SEPTEMBER 2005

‘To Strive, to seek, …’

Robin Sharwood

INTRODUCTORY NOTE The year 2004 marked the 150th Anniversary of the passing by the Victorian Legislative Council of the legislation which established synodical church government in Victoria.

The year also marked the 50th Anniversary of the foundation of The Anglican Historical Society.

The Lecture which follows was delivered when it was still “work in progress”.

This published version incorporates later research, especially from p.17 to the end.

Robin Sharwood

‘To Strive, to seek, …’

“To strive, to seek, to find, and not to yield” – the line from Alfred Lord Tennyson’s epic poem Ulysses which I have chosen as the title for tonight’s lecture has, I am sure you will agree, a hint of high endeavour about it, a note of grandiloquence, even of swagger.

It betrays no false modesty. It has in it the beat of drums and the blare of trumpets.

And that is precisely why I have chosen it. Because the changes begun or achieved in the polity of the Church of England by a handful of people in the middle of the Nineteenth Century were quite extraordinary, indeed revolutionary, and we live in their shadow to this very day.

To underline that point, and before I begin the story of how and why and by whom these changes were achieved, allow me to read and comment upon one short sentence in the very recent Windsor Report (October 2004). (1) In the Draft Covenant attached to it, you will find the following (in Article 5[1]): “Each member church (of the Anglican Communion) is autonomous, episcopally led and synodically governed”.

To mid-Nineteenth Century leaders of the Church of England, whether in England itself or in one of its colonies (such as those here in Australia), such a statement would have been quite astonishing. It would have been meaningless, incomplete and plain wrong. Colonial branches of the Church were certainly not “autonomous”, and the modern concept of an “Anglican Communion” was still to emerge – the first “Lambeth Conference” was years away (1867). The Church was nowhere “synodically governed” because there were no synods: the ancient convocations of Canterbury and York, which in any case had never included laity, had been in effective dis-use since early in the Eighteenth Century, and no comparable assemblies with any assured legality had yet appeared in the colonies.(2) As to the Bishops, true, they were authoritative figures, with their ill-defined heritage of rights, powers and responsibilities said to be “inherent” in their office, or derived from post reformation statutes, medieval canons or even more ancient sources, (3) but was the Church “episcopally led”? Most certainly not – or not in any fundamental legal sense. Under the doctrine of “The Royal Supremacy”, the “Supreme Governor” of the Church was the Queen, and the laws of the Church were made by The Queen-in-Parliament. (4) “Episcopally led and synodically governed”? What nonsense! Queen Victoria, who did not much like bishops anyway, and was quite confident that, at the end of the day, she ran the Church, would not have been amused. (5) Yet it was in mid-century, precisely in the middle of the Nineteenth Century, in the year 1850, that the situation began unmistakeably to change. And the beginnings, at least, of that movement for change had rather more to do with the situation of the colonial branches of the church than with the Church of England at home. In this story, the Church of England here in Victoria, and its first Bishop, Charles Perry, played a pivotal role.

‘To Strive, to seek, …’

Robin Sharwood

Every good story has its principal characters, its lead roles, and this story, so far as it concerns us tonight, is no exception. Let me briefly introduce them to you now - it will make the telling of the story easier. There are five of them – two in England and three here in Australia. Of course, there was a large supporting cast, and I shall be mentioning other names, but these five are, I believe, the key actors.

The two Englishmen are William Ewart Gladstone and John Bird Sumner.

Gladstone, born in 1809 (he was to die in 1898), was one of the greatest of English statesmen, being Prime Minister no less than four times. He was a prayerful and dedicated churchman, ‘convinced’ (to quote his biographer Philip Magnus) “that God would call him personally to account for his every thought, and word, and act”. (6) A man of profound, even violent, passions and emotions, he maintained a public equanimity only through the exercise of the most rigorous self-discipline. (7) When he gave himself to a cause, he did so unreservedly, and worked for it with quite prodigious energy. It was fortunate for us that he saw the betterment of the position of the colonial churches as one such cause.

The second English figure, John Bird Sumner was strikingly different to Gladstone in almost every respect. He was a generation older, having been born in 1780, and he had none of Gladstone’s vigour or talent for leadership. Moreover, he was a moderate Evangelical, whereas Gladstone, although hard to classify categorically, was fundamentally an Oxford Movement man – certainly on the catholic side of Anglicanism. (8) But John Bird Sumner happened to be Archbishop of Canterbury in the critical years of the 1850s (to be precise, from 1848 to 1862), and his rather surprising intervention in the colonial churches debate proved, as we shall see, to be crucial. (9) That brings us to the three men here in Australia who played major roles.

The first, William Grant Broughton, came from the same generation as Archbishop Sumner, having been born (by happy coincidence, given his Australian career) in 1788.

Originally coming to Sydney as Archdeacon (in 1829), he was consecrated in Lambeth Palace Chapel as “Bishop of Australia” in 1836 – the first and only bishop to be so designated. An old-school High Churchman, his concern at the anomalous position of the colonial church led him into much sympathy with the Oxford Movement. His growing conviction that the governance of the local church needed to be reformed, reinforced by his dismay at a doctrinal dispute in England, led him, in that “hinge” year of 1850, to make a decisive move, which we shall examine shortly. But, ironically, Broughton never saw the final outcome of that move, because he died in England in February 1853. (10) Broughton did not see it, but Charles Perry certainly did, and I imagine it is he, of all the five main actors, whom we most honour tonight.

Robin Sharwood

‘To Strive, to seek, …’

Perry was of the same generation as Gladstone: he was born in 1807, Gladstone in 1809.

Intellectually very able, a Fellow of Trinity College, Cambridge, he was consecrated in Westminster Abbey on 29th June 1847 as the first Bishop of the new See of Melbourne, arriving here with his wife in January 1848. An Evangelical, with strong and decided opinions which bordered (at least) on bigotry, (11) he was, like all of the early Australian colonial bishops, immensely hard-working, and travelled (much of the time on horseback) the length and breadth of his huge diocese, which, until the creation of the See of Ballarat in 1873, comprised the whole of what is now Victoria. His achievements were many, notably in the fields of church building and education, but tonight we focus upon his intense interest in church governance, and the role of the laity in that governance – an interest which his earlier legal studies fitted him well to pursue. (12) In this interest, he enlisted the aid of one of colonial Victoria’s most remarkable, energetic and enigmatic figures: William Foster Stawell. Born in Ireland in 1815, and thus a little over eight years younger than Perry, he had been educated at Trinity College, Dublin, and called to both the Irish and English Bars. He arrived in the colony – still then the Port Phillip District of New South Wales – in December 1842.

Although his maternal grandfather was a Bishop in the Church of Ireland, the young William Stawell was anything but a devout and decorous Churchman. While working hard at the local Bar, his private life was wild and boisterous in the extreme. He was a fearless, even reckless, horseman, a heavy smoker and drinker, probably a gambler and (it was hinted) no mean rake. And then, one day in 1848, William Foster Stawell found his whole world turned upside-down. He was visiting his cousins the Greenes at their property “Woodlands”, close to what is now Tullamarine. (It is publicly owned, incidentally, and well repays visiting.) So, Stawell is at “Woodlands”, and it is a Sunday.

In the drawing room, he hears Bishop Perry preach a sermon which so affects him that he takes himself off for a long and solitary walk. He returns a changed man: he has renounced his worldly pleasures, and from now on he will live his life by the godly precepts of which Perry had spoken and which, in his childhood, he had heard from his mother. And that is just what he did. It appears to have been a true “conversion” experience, and like all “conversion” experiences, remains utterly mysterious. But it was, indeed, complete, and from his new resolve Stawell never wavered.

Perry confirmed him the following year (1849) (13) and he became one of the Bishop’s strongest and most powerful supporters – the leading layman of the Diocese. He entered politics and became the new Colony of Victoria’s Attorney-General at a most opportune time for Perry, as we shall see. In 1857, Stawell succeeded A’Beckett as Chief Justice, and remained in that position until 1886. He died, with the rank of Lieutenant-Governor, in 1889. (14)

‘To Strive, to seek, …’

Robin Sharwood

So these are my five main characters: Gladstone, Sumner, Broughton, Perry and Stawell.

And with the stage set, so to speak, we can at last ring up the curtain The year is 1850 – what I earlier called “the hinge year”, because so many courses were set, so many determinative events occurred, in that mid-century twelve-month.

At the end of the 1840s, to sum up a complex situation as briefly as possible, the status and governance of the Church of England in New South Wales (which still, at that stage, included the Port Phillip District) was provided for comfusingly, controversially, inadequately and partially under the Letters Patent of the Bishops, two statutes of the New South Wales legislature (principally concerned with church property and government grants), and an uncertain inheritance of English ecclesiastical law. (15) To expand on that last point for a moment, it was unclear whether an English statute, dating back to Henry VIII’s days and known as “the Act of Submission”, (16) prevented the calling together of any local Synod without the Queen’s express licence and assent. If it did apply in the colonies, then the penalties for disobeying it were very severe.

Two other particular issues also call for brief mention.

In the minds of many, very much including Bishop Perry, the problem of the legality of Synods was linked with what was considered to be an inadequate role for the laity in the Church. It was a point Perry was to make publicly and privately again and again. Thus, to quote from a sermon of 1851, Perry claimed that one of the “chief imperfections” of the colonial church was “the small share taken by the Laity in the management of its Ecclesiastical affairs”. (17) Then there was the question of clergy discipline. All power and responsibility in this delicate area lay entirely in the hands of the local Bishops themselves, under both their Letters Patent and one of the New South Wales statutes I have referred to. (18) This situation was disliked by both Bishops and clergy, who all would have preferred some sort of tribunal system – a local version of the English church courts.(19) Early in 1850, matters began to move.

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Let us look first at England, and, in particular, at the endeavours of William Gladstone.

Gladstone had had a brief term as Colonial Secretary, (20) which gave him some insight into colonial affairs, but he was out of office in 1850, although he still held a seat in the Commons.

Parliament had before it the Bill which in due course became the Australian Colonies Government Act of 1850.(21) This most important Act provided for the separation from New South Wales of the Port Phillip District, which became the new Colony of Victoria, and it conferred upon all the Australian Colonies virtual powers of self-government, under their own Legislative Councils, although not yet full responsible government in the modern sense.

Gladstone wanted to add clauses to this Bill which would give the Church of England in these Colonies a measure of synodical government, freeing them from any possible constraints under the Act of Henry VIII. In this endeavour, he was supported in the House of Lords by the Bishop of Oxford, the energetic Samuel Wilberforce, a son of the great philanthropist and slavery abolitionist, William Wilberforce. Gladstone and Bishop Wilberforce were a powerful combination. Gladstone’s Diary and papers for the early months of 1850 show him working very hard indeed on this matter – writing letters, drafting possible clauses, seeing people, receiving opinions from various eminent authorities. (22) But the Bill is not his only concern in those months. Another very pressing matter is the doctrinal dispute to which I briefly referred earlier.

The dispute is over the doctrine of Baptism in the Church of England, and it has come to be highlighted in the so-called “Gorham Case”. Put very simply, Henry Philpotts, the High Church Bishop of Exeter, had refused to institute the Rev’d G.C. Gorham, a nearCalvinist Evangelical, to a certain living, because, after exhaustive examination, he came to the conclusion that Gorham’s views on Baptism were contrary to Anglican doctrine.

Gorham appealed, and by early 1850 his case was before the Judicial Committee of the Privy Council. (23) Gladstone is extremely anxious about the matter, and his Diary for February contains many references to the case. (24) On 8th March, the Privy Council decides for Gorham against Philpotts, and orders the Bishop to institute him to the living.

Gladstone, together with all on the Oxford Movement side, is horrified. Philip Magnus says that “he was plunged for many months into a mood of black depression.” (25) On 6th April, two of Gladstone’s closest friends, Henry Manning and James Hope-Scott – “my two props”, as he calls them in his Diary entry for the following day – go over to Rome in protest at the decision. (26)

‘To Strive, to seek, …’

Robin Sharwood

Nor is this all. His little daughter Jessy has contracted meningitis, and at 2 a.m. in the morning of 9th April she dies. “Her father”, writes Magnus,“ was plunged for some hours into such an agony of grief, that his household was seriously alarmed”. (27) The iron self-discipline quickly re-asserted itself, however, and Gladstone worked doggedly on. But the “Australian” or “Colonial Church Clauses” (his papers record both usages) proved to be a lost cause, failing in May in the Commons and in June in the Lords, and the Australian Colonies’ Government Act became law in August 1850 without them. The debates would suggest that most members simply did not understand their significance. (28)

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Meanwhile, in Sydney, in that same year (1850), another important initiative was underway.

Bishop Broughton had been considering convening a conference of the Australian bishops together with Bishop Selwyn of New Zealand, since 1843, and especially since 1848, with the appointments in 1847 to the new Sees of Melbourne, Adelaide and Newcastle. (29) In February of 1850, he met with Perry at Albury. Little is known of the details of this meeting, (30) but it seems to have encouraged Perry to prepare, on his own, two Bills on Church affairs to go before the Legislative Council of New South Wales (this being some months before Victoria became independent). Perry had acted unwisely. There had been far too little consultation, at any level, and the Bills were not well drafted.

Perry was forced to withdraw them.(31) But his ill-judged move strengthened Broughton’s resolve to bring all the Australasian bishops together, and as soon as possible. He was further encouraged in that resolve by the fall-out from the Gorham Judgment.

Broughton was in correspondence with Gladstone and his like-minded friends, and, as the Melbourne church historian the Rev’d Dr. Austin Cooper has shown in a recent paper (still unpublished), There seems little doubt that Broughton convened the conference when he did in part to thrash out the Baptism question. (32) So, in response to Broughton’s invitation, the Australasian Bishops did meet in Sydney from 1st October to 1st November of 1850 – carefully insisting, for the good legal reasons earlier adverted to, that they did not purport to be a Synod! (33) Certainly the issue of Baptism was discussed, and the Bishops issued a joint statement largely along what I might call Catholic lines, to which Perry added a separate dissent.

Our interest tonight, however, lies in the Conference’s resolutions as to church governance.

The Bishops urged the necessity for “duly constituted Provincial and Diocesan Synods”, which they saw as composed of Bishops and clergy. They recommended that separate conventions of elected laity should meet at the same time as the Synods. The Synods would establish courts to try cases of clergy discipline. The major Anglican formulae were affirmed: The Book of Common Prayer, the Thirty-Nine Articles, the Canons of 1603. In this and other ways, the Bishops made it very clear that the Australasian Colonial Churches, even if to some extent self-governing, would remain integral parts of the Church of England.

Perry sent a copy of the Conference Minutes to his clergy on Christmas Eve, 1850, and received a formal response from them in March 1851 – dated on Lady Day, as it happened (25th March). In their response the clergy largely supported the views of the Conference, but, very interestingly, proposed that the Synods should include laity as well as Bishops and clergy. (34)

‘To Strive, to seek, …’

Robin Sharwood

Around about the same time, the Committee of the Geelong Branch of the “Melbourne Diocesan Society and Church of England Association” was urging Perry to further action, and the outcome of this was yet another conference, this time made up of clergy and laity of the whole Diocese of Melbourne, which met between 24th June and 9th July 1851. (35) On the governance questions, while insisting that the connection with the mother Church of England and its doctrines must remain, the Conference recommended the establishment of what it called an “Assembly” presided over by the Bishop, to meet biennially, and with both clerical and lay members, the latter to be representatives of their parishes. Amongst other things, it supported the establishment of a tribunal, with a right of appeal to the highest ecclesiastical court in England. Many of this Conference’s recommendations, which I have not covered in full tonight, were to find their way into the 1854 Act. In some ways, this Melbourne Conference of 1851 was a more significant progenitor of that Act than the Sydney Conference of 1850, which, in most histories of the period, has overshadowed it.

Perry, however, could do little about the matter immediately. He, and the entire colony, were thrown into considerable if ultimately prosperous confusion by the discovery of gold in July and August of that year, and the resulting extraordinary Gold Rush. (36) So our attention turns again to England.

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Gladstone was by no means discouraged by his failure in 1850. In July of 1851, he told the House of Commons about the 1850 Sydney Conference, and urged the necessity for legislation. (37) Again in 1851, he made a fighting speech to the Bishops of the Episcopal Church of Scotland about the sorry plight of the Colonial Churches; it is Gladstone at his best, and while it is too long to quote tonight, I shall attach an extract from it to the published version of this lecture, because it deserves to be better known. (38) In February of the following year, 1852, he introduced in the Commons a Private Members Bill on the matter (he was still out of the Ministry), designed to give the Colonial Churches at large a measure of self-government, and specifically to permit and legalise Synods with both clerical and lay membership. (39) Deeply committed though Gladstone was to the reform of colonial churches, he never intended that they should enjoy full autonomy; what he wished for them was an authority to manage their “local” affairs within the broader polity of the Church of England.

The Secretary of State for the Colonies, Sir John Pakington, opposed Gladstone’s Bill on a number of grounds, the most important (for present purposes) being that the Bill would “tend to break up the Church of England into a number of small separate Churches” and would “tend to destroy the supremacy of the Crown”. In the ensuing debate, some members shared Pakington’s fears, while others accepted Gladstone’s more limited view of the measure. (40) In the event, Gladstone chose not to press the Second Reading debate to a division, but on 23rd June 1852 brought the subject on again, in the form of a re-drafted Bill designed to meet the major objections raised earlier. The manner in which the Bill was re-drafted is of the first importance, because the re-drafted Bill was the direct ancestor of the 1854 Act. The essence of Gladstone’s long speech was to explain that his intention was not to “create a positive legislative power in the hands of the Church in the Colonies”, as the original Bill may have suggested, but rather “to make this Bill a relieving and permissive Bill. It was thought that I made it a relieving and enacting Bill. I am glad to make the change” (emphasis added).

Successive drafts in both England and Victoria eschewed wide grants of power to Synods, in order to avoid the charge of Pakington and others in this 1852 debate that such grants of power carried the risk that the Church of England might “break up… into a number of small separate Churches”, with “every separate diocese [adopting] a totally different system of doctrine, practice and discipline from all the rest”, which would “break up the unity of the Church”.

Despite the various amendments, however, Pakington continued to oppose the Bill, and Gladstone withdrew it, with leave to bring in a further Bill at a later date.

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Robin Sharwood

It was not, however, Mr. Gladstone who was to sponsor the next Bill in the series. A “Colonial Church Regulation Bill” was brought into the House of Lords on 14 July 1853 by the Archbishop of Canterbury, Archbishop Sumner. (41) This Bill had been approved by the English Bishops, after consultation with a number of the colonial bishops who happened to be in England (they did not include Perry). While Sumner’s Bill was certainly not identical with Gladstone’s second Bill, and was seen by Gladstone as somewhat too cautious, he nevertheless made it clear in Parliament that the Bill “had been introduced for the purpose of establishing the principle which his (i.e. Gladstone’s) Bill had attempted to give” and that he supported it.

I said earlier that Sumner’s intervention was “rather surprising”. This was because the Archbishop had resolutely opposed synodical government for the Church of England, through the revival of the ancient Convocations. (42) How he reconciled this view (in which, in any case, he was unsuccessful) with his support for colonial synods, I do not know.

Sumner’s Bill passed the House of Lords on 25th July 1853. (43) It was emphasised again and again that the Bill was an “enabling” measure, designed to remove certain “disabilities” which hindered the colonial Church in relation to its “internal management and regulation”, but that the unity of the colonial Church with the Church of England was fully safe-guarded.

The Bill was then introduced into the House of Commons on 29th July 1853 and debated on 2nd August. (44) Although the Bill was warmly commended by Gladstone and some others, it ran into opposition from members who believed it had been introduced too late in the session for adequate debate, and who were concerned that it represented an “interference with the freedom of the Colonial legislatures.” (45) The Bill was to all intents and purposes defeated when a resolution was carried to put off the Second Reading for three months; it was never revived.

With the failure of Archbishop Sumner’s Bill, our focus of interest returns to events in Victoria. Nevertheless, while the Gladstone and Sumner Bills may not have reached enactment, they constitute crucial and illuminating episodes in the history of Victoria’s 1854 Act; the debates in the Imperial Parliament on the Bills put before them were a most important part of the process by which the principles of that Act were settled and refined. (46) It is useful to note that by 1854 all the particular subjects which were to be addressed in the 1854 Act had been identified: provision for a lawful assembly of clergy and laity, under the presidency of the Bishop, with some powers in relation to the local affairs of the Church; better provisions for clergy discipline; patronage and related matters. Also identified were the restrictions and limitations which were to appear in the 1854 Act, 12

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either expressly or by necessary implication: the continuing legal and constitutional link with the Church of England, its faith and order, and its ecclesiastical tribunals; subordination to the laws of the State; acknowledgement of the Royal Supremacy; and the continuing role of the Archbishop of Canterbury.

Finally, we should note the confirmation, through at least the local debates, that the existing colonial statutes (the Bourke Act and the Church Act) remained in force in Victoria, making provision (even if inadequately) for trusts for church property, for the management of government subsidies, for the election of churchwardens, and for the Bishop’s powers over his clergy. Further, the Bishop’s Letters Patent were still at that stage regarded as legally effective. (47) The news of the failure of Sumner’s Bill came to Bishop Perry as an especially heavy blow, because the enormous growth in the size and complexity of the colony following the discovery of gold rendered attention to the matter of Church governance all the more urgent.

Having taken legal advice, Perry decided that the way forward was to petition the Victorian legislature (the Legislative Council) for the necessary legislation. Early in 1854, therefore, he asked his friend William Foster Stawell, by now Attorney-General, to draft a Bill, and he invited clergy and laity to attend a conference to open on 14th June. In his letter of invitation, Perry made it clear that he hoped that the conference would adopt Sumner’s Bill as the basis of one of their own. (48) In the event, this was not quite how things worked out. Stawell clearly drew upon Sumner’s Bill, but he took ideas from other sources, such as the 1851 Victorian Conference, and he engaged in some creative drafting of his own.

The Conference met from 14th June to 29th June, and, while attending to other matters as well, it debated Stawell’s Bill with great care on all but one of those days, adopting it only in the Conference’s closing minutes. Overall, it can be said that the Bill which thus emerged did conform, both in principle and in much of its wording, to the Gladstone and Sumner Bills. (49) Perhaps the most important observation which can be made about the proceedings of the 1854 Conference is one that cannot, in the nature of things, be easily supported by concise quotation – namely, that there is no evidence that members of the Conference believed themselves to be planning for a Synod which would have any authority in matters of faith and order (except insofar as clergy discipline and, perhaps, clergy licensing touched on matters of faith and order). The Synod was needed for “local” and “temporal” affairs in identified and specified subject areas. The express insistence that there would be no “separation” or “severance” from the Church of England in England, of course, with acknowledgement of the Queen’s prerogative and the right of appeal to the highest English Courts with ecclesiastical jurisdiction, really carries these conclusions by necessary implication.

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Robin Sharwood

The Bill was now submitted to the Victorian Legislative Council (which alone, in those days, constituted the Victorian legislature). It came before the Council on 15th November 1854, when it was read a first and second time. It was considered in Committee on 21st and 24th November, and passed without debate on the Third Reading on 29th November. (50) Stawell moved the Second Reading, acting in his private capacity rather than as Attorney-General; this Bill was not a government measure. He stressed the necessity for the Bill, explaining that the rejection in England of Sumner’s Bill, on which (he said) this was modelled, “threw them on their own resources”. He believed that the Act would be within the Council’s constitutional powers, especially as he did not consider that the Henrician Act of Submission applied in Victoria. The Church “merely asked for the power to regulate their own internal affairs…. No question of faith was involved in the matter”. (51) Some members objected to the idea of the Council legislating on religious matters.

Various other members then pointed out that the Council had in the previous year legislated for a local and fully independent Synod of Victoria for the Presbyterian Church.

The Second Reading was carried by 15 votes to 5.

The question of the characterisation of the Bill arose again in Committee. Stawell emphasised that the Bill was not a “religious” one; “it was merely a Bill to enable the Church to regulate its temporal affairs”. Later in the debate, in response to another member, he returned to the point: The hon. Member had declared that it must be a weak Church that would require support from the Legislature. They did not ask for support in spiritual matters. They merely required the ability to regulate their temporal affairs. The only section which in any way referred to spiritual matters was that in which it was proposed to form an ecclesiastical tribunal for the trial of a certain class of offences. But those tribunals were already well known in the Church… He again declared there was no doctrinal question in the Bill. (52) There was, then, some opposition to the Bill in the Legislative Council, as there was in the general community, (53) but the Council made only very minor amendments to it, and on every vote the Bill was overwhelmingly approved. It was carried on the Third Reading without dissent or division. (54) This is a convenient point to make an important observation about the whole legislative history of the 1854 Act, both in England and Victoria. There were always those nervous at the possibility that legislation such as this might be designed to “establish” the Church 14

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of England in Victoria, giving privileges to members and imposing obligations upon its non-members. Supporters of the legislation always strenuously denied any such possibility, and their assurances were finally accepted. This touchy issue, however, does explain the prominence given to Section 2 of the Act, and the careful way in which that section is drafted.

The following broad conclusions can be drawn from this legislative history: 1. The principal purpose of the Act was to provide a legal basis for a local assembly or synod, comprised of Bishop, clergy and representative laity.

2. This assembly would be empowered to legislate in a limited fashion for Church members (and only Church members) in relation to local and largely temporal affairs of the Church, as specified in the Act. 3. The assembly would have no power in relation to matters of faith and order (save insofar as clergy discipline and, perhaps, clergy licensing involved matters of faith and order).

4. The local church would remain a part of the Church of England in England, bound by all its formularies and the whole corpus of its faith and order, and subject to the ultimate jurisdiction of the Queen, the Archbishop of Canterbury and the highest ecclesiastical tribunals.

5. The Act would supplement the existing local legislation for the Church, namely the Bourke Act and the Church Act (55) (which is why the Act deals only marginally with property matters and not at all with vestries).

Although the Bill had now passed the Victorian Legislative Council, this was not the end of the matter, as such a Bill had to be reserved for the Royal Assent in England,(56) and that Assent (which would be given or withheld on the advice of the United Kingdom Government) could not be taken for granted. At the request of leading members of the Diocese, Bishop Perry went to England to lobby for the Bill. He and Mrs. Perry sailed for London in December 1854, arriving there on 16th March 1855. Their ship was named “The Argo”. (57) In a confusing but convenient switch of mythic roles, Perry, the “Ulysses” of my opening quotation, had become Perry the “Jason”, seeking that much desired Golden Fleece – the Royal Assent.

As it happened, 1855 was not an easy year to gain the attention of the authorities in England. The Crimean War was still raging, and that was in part responsible for much instability in government. Aberdeen resigned as Prime Minister in January, accused of mismanagement of the War, to be succeeded by Palmerston. Gladstone, amongst others, returned to the back bench, and no longer had a voice in Cabinet.

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Just as was the case with Her Ministers, the Supreme Governor, The Queen, with the Prince Consort by her side, was pre-occupied with the War and its domestic repercussions. She was further distracted, although much more pleasantly, by a State Visit to England in April by the Emperor Napoleon III of France and Empress Eugenie, by both of whom she was utterly captivated. In a private Memorandum, she wrote of the Emperor’s “power of fascination”, and, in a compliment which the Emperor might not have altogether appreciated, described him as “being much more German than French in character.” (58) A return State Visit by The Queen, the Prince and their two older children to Paris in August was also brilliantly successful, the Queen writing to her uncle Leopold, King of the Belgians, from St. Cloud that she was (with much underlining) “delighted, enchanted, amused, and interested, and think I never saw anything more beautiful and gay than Paris….” (59) And then, in the following month, to the joy of both The Queen and the Prince Consort, their eldest child, Vicky, the Princess Royal, became unofficially engaged to Prince Frederick William of Prussia (unofficially, because she was still only 15), and thereby stood to become, in due course, the German Empress.

Poor Charles Perry had no hope of matching such formidable and glamorous competition!

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When Perry arrived in England on 16th March 1855, the Colonial Secretary, Lord John Russell, was in Vienna, but he called “immediately” on the Assistant-Secretary, Mr. Merrivale (see important end note) (60). He found Merrivale “altogether favourable to the measure”, but was warned that the matter “must be referred to the law officers of the Crown”. Lord John Russell advised Perry similarly on his return from Vienna. Perry claimed (in Melbourne, on his return,) that Lord John Russell expressed at the same time “his cordial approval” of the measure, which contrasts strangely with the assertion by Perry’s apparently well-informed confidant Canon George Goodman that at this same interview “it was only too evident that the Minister was adverse to the measure, though he did not give a definite reply” (61) It does seem, however, that the Colonial Office had received a “memorial” on the matter from the Roman Catholic Bishop of Melbourne, Dr. Goold, claiming that the local members of the Church of England “sought to obtain peculiar privileges” for themselves in this Bill (to quote Perry). Perry was learning of this “memorial” for the first time, as Goold had not given publicity to it in 1854 because of (again in Perry’s words) “the disturbances which had taken place on the gold-fields at Ballarat.”

This “memorial” might well have given Russell pause. However, Russell resigned his office in April without making a decision. His successor as Colonial Secretary was Sir William Molesworth, best remembered now in Australia for chairing the House of Commons Committee which recommended the ending of transportation. Perry accordingly called upon him, and claimed he found him “disposed cordially to approve of the measure”. But Molesworth received an opinion from the law officers dated 17 August 1855 which was not favourable to the Bill, noting that “the Ecclesiastical Supremacy of the Crown in the Colony of Victoria will be thereby most seriously affected, if indeed it should continue to have any legal existence” and expressing the view that Imperial legislation was necessary. (62) Molesworth wrote to Perry with the bad news, and later (on 17th September) had a conference with him, at which he read to Perry the draft of a despatch he was proposing to send to Governor Hotham “expressing his regret that he could not advise the Queen to assent to the act”, but saying that he would bring the matter before the Cabinet. In the event, however, Molesworth neither sent the despatch not took the matter to Cabinet, as, a few weeks after his meeting with Perry, he collapsed and died.

Before recounting events following the death of Molesworth, two rather curious matters seem worth recording.

In a letter to Melbourne dated 2nd June 1855 and reported in the local Church of England Record for September, Perry claimed to be quite optimistic: “he was looking forward to the giving of Her Majesty’s sanction” to the Bill. (63) He may, however, have been whistling in the dark – indeed, I am fairly sure as he was, perhaps for home consumption.

With no opinion yet to hand from the law officers, I cannot see that at that stage (the beginning of June) there were substantial grounds for his expressed optimism.

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My second observation is that I can find no evidence that Perry sought any assistance from Gladstone, who surely would have been a convinced and influential ally in his cause. On the evidence of Gladstone’s Diary for 1855-6, which meticulously records the names of all whom he met or wrote to, he and Perry had no communication of any kind, although Gladstone almost certainly knew what was afoot through his various contacts, which included the successive Colonial Secretaries. (64) Nor did Perry mention Gladstone at his Melbourne public meeting of 19th April 1856, when he described his English mission in such detail. If this failure of communication was (as I suspect) due to Perry’s dislike of Gladstone’s churchmanship, it does Perry little credit – indeed, it can only be described as foolish.

To return to Perry’s dealings with the Colonial Office, Molesworth was succeeded as Colonial Secretary by Mr. Henry Labouchere (later Lord Taunton), under Palmerston, and at last, it would seem, matters began to move at a faster pace, and more favourably.

Labouchere, to whom we clearly owe so much, was then in his late 50s, and had been in the House of Commons since 1826, holding a series of senior positions of which this Colonial Secretaryship was to be his last. The author of his entry in the Dictionary of National Biography describes him as “a highly respected public man, and a hardworking administrator”, quoting Lord Campbell’s comment that he was “such a perfect gentleman that in the House of Commons he is heard with peculiar favour.” (65) Labouchere took up his office on 21st November 1855. (66) Perry had an early interview with Merrivale, who was able to tell him that Molesworth’s draft despatch had neither been signed or sent, and on the same day an interview with Labouchere himself, who had found himself confronted not only with the Victorian Bill but with a resolution from the Canadian Church along similar lines.

After consulting “several friends”, Perry decided to present a “memorandum” to Labouchere, “earnestly pressing on him and the Cabinet the necessity of settling the question satisfactorily for us”. For the drafting of this “memorandum”, the “memorial”, he turned to a London barrister named Thomas Turner, an “intimate friend of mine – a man who has rendered great service to this diocese in various ways”. Goodman claims that Labouchere had requested such a document. He also tells us that Turner had been “a former fellow of Trinity and contemporary of the bishop…. who had been his agent in various business matters in England.” (67) While I have not yet discovered anything further about Thomas Turner, I do assume that he was the “Thomas Turner” who had a letter published in the (English) Colonial Church Chronicle for September 1855, defending the Victorian Bill against Bishop Goold’s criticisms, and appending in full the Petition to the Legislative Council of Victoria of 1854, requesting that the Bill prepared at the Church of England Conference of 1854 be passed. (68) As I assume that Stawell would have been the principal author of this Petition, I think it likely that Turner drew largely upon it. I have not however, traced a copy of Turner’s “memorandum”.

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Goodman implies that he had read it, describing it as a “lucid and wise state-paper”, but he does not reproduce it or quote from it. (69) Perry was to tell his Melbourne audience in 1856 that, in sending Labouchere the “memorial”, he added a letter of his own “in which I took on myself to say that the Church in Victoria sought for no … separation from the church of England … , and more than that I felt myself justified in saying that from the unanimous feeling shown by our conference, we should earnestly deprecate any such separation – that our desire was to continue as part and parcel of the United Church of England and Ireland, and our clergymen desired to continue clergymen of that Church, and not clergymen of a sister Church in Victoria”.

At their next meeting, Labouchere told Perry that he had circulated printed copies of the memorial and Perry’s letter to Members of the Cabinet. When they met again, Labouchere had discouraging news: Cabinet believed that the matter “was involved in so many difficulties that they did not see their way out of them.” At what seems to have been their last meeting before Perry left England to return to Melbourne, Labouchere spoke of the different alternatives presented to the Government – of being compelled to throw overboard the opinions of the law officers of the Crown, and at once advising her Majesty to assent to the act; or of introducing an act into the imperial Legislature enabling the Queen to give her assent to it. He stated that there was obvious objections to both courses, but that they might introduce some general measure enabling the colonial Legislature to deal with the matter afterwards.

Labouchere added that he was desirous of submitting my [i.e. Perry’s] memorial and letter to the House of Commons, in order to put them in full possession of the facts, but he was prevented from doing so by a point of etiquette – that the opinions of the law officers of the Crown should not be publicly canvassed, and my memorial, drawn up by Mr. Turner, entered fully into the subject, examining all objections urged to the act, and answering them.

So Labouchere proposed to Perry that he substitute an amended memorial, which would be possible to to lay before Parliament. And this Perry did, posting the amended document to Labouchere on the “day before I left Torquay for Plymouth” (i.e. 5th or 6th January 1856). And that, he said, “was my last act before I left England.” (70)

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Some time later, it would seem, with Perry at sea and out of contact, Labouchere appears to have obtained a further opinion from the law officers of the Crown. This is the opinion (to which no date is attached) which is set out in Lowther Clarke’s text Constitutional Church Government, published in 1924. (71) It noted that Any interference with questions of faith or matters of doctrine has been carefully insured(72), and the Supremacy and Royal Prerogative of Her Majesty as well as the powers of the See of Canterbury and of the Metropolitan have been strictly protected. (73) The opinion was therefore regarded as favourable, and Cabinet decided at a meeting in January 1856 that the Queen could properly be advised to give her Assent to the Bill.

Labouchere accordingly sent a despatch to Hotham dated 1st February 1856, advising him of the fact (unaware that Hotham had died suddenly, on 31st December 1855, and that the despatch would be received by the Acting Governor Major-General Macarthur, commander-in-chief of the Military forces in Australia). Labouchere’s despatch is reproduced in facsimile in Appendix D. In his despatch, Labouchere referred to “objections” which had been raised to “certain portions of the measure”, but these, he said, were “directed however rather to its policy than its legality”, and could presumably be dealt with by the local legislature or, if need be, by the Imperial Parliament: though not insensible to the force of these objections Her Majesty’s Government have deemed it their duty not to interfere with the operation of a measure intended to serve a purpose of which the importance and the exigency appear to be so fully recognized. Her Majesty has consequently been advised to give Her assent to the Bill: and the necessary Order in Council will accordingly be transmitted without delay.

The Order-in-Council itself, attesting to the Queen’s Assent, was dated 25th February 1856: it is reproduced in Appendix E. Labouchere’s despatch appears to have been received by the Acting-Governor on 28th April 1856(74) – nine days after Perry’s public meeting of 19th April, when he was still unaware of what had occurred in England after his departure. On receiving the Orderin-Council, Macarthur announced the Royal Assent by a Proclamation dated 3rd June 1856(75), and the Act became legally operative when (as required by law) it was tabled in the Legislative Council on 6th June 1856. (76) The Act in its original form, as published as a Supplement to the Victoria Government Gazette of Friday, 27th June 1856, is reproduced in full, in facsimile, in Appendix F. 20

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The great struggle was at last over, and the battle had been won. But, as the Duke of Wellington said of the Battle of Waterloo, it had been “a damned nice thing – the nearest run thing you ever saw in your life” (77).

_______________________________ Before a final summing-up, let us return to Bishop Perry.

We left him in Plymouth, about to sail to Melbourne on the “Walmer Castle”, the departure date for which was announced as 7th January 1856. (78) Imagine what his feelings must have been on the day he sailed. Was this a moment of triumph? Had Perry anticipated his success?

Alas, no, on both counts.

Not only was he unaware, even unofficially, of the view formed (or being formed) by the Colonial Secretary, he was, on the contrary convinced that he had failed – that his mission had been in vain. For Perry, the long voyage home could not have been a happy one. The “Golden Fleece” had (it seems) eluded him.

The “Walmer Castle” sailed through the Heads into Port Phillip Bay in the early morning of 4th April 1856. (79) A representative delegation of clergy and laity, led by Dean Macartney, went out by steam-boat to meet her. On the deck of the “Walmer Castle”, the delegation welcomed the Perrys’ return to Melbourne in warm but carefully guarded remarks. In his brief reply, Perry thanked them all for their care of the Diocese in his absence and expressed his delight at being amongst them again. But he said not one word about the prime object of his journey and long absence – not one word.

Later on that same day, he met clergy from the Archdeaconry of Melbourne at “Bishopscourt” and at last brought himself publicly to admit his failure. He “very much lamented”, he said, “that he had now to fear that the principal object of his journey had failed, as it was very doubtful whether there were not obstacles to the assent of the Queen being given to the Bill….; but he was convinced that the time had come when some general measure on behalf of the church in the colonies would not be postponed”. He repeated the unhappy story to the clergy of the Archdeaconry of Geelong on Saturday, 12th April, making then the interesting remark that when he left England (i.e. on 7th January) “the subject was under the consideration of Cabinet” – but clearly he was referring to a possible new Imperial Bill, and not the Victorian 1854 Bill, which he considered as dead in the water.

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Just when, and by what means, Perry finally learned that he was quite wrong, and that The Queen had assented to the Bill, I have not so far discovered. Judging by the report in the June issue of the Church of England Record, which is dated the 1st of that month, he must have learned that the Royal Assent was to be given by some information reaching him in late April or May, probably from the Acting-Governor (who, it will be recalled, had received Labouchere’s despatch on 28th April). The June issue of the Record indicated that the Royal Assent was pending: that at least, is how I read it. (80) It seems clear enough that the Proclamation of 3rd June had not yet appeared or been tabled in the Legislative Council, as no reference is made to it, the Record merely noting that the Bill “will shortly become law”. Nevertheless, that was very good news.

So, when that good news was thus announced, was there dancing in the streets and other scenes of exuberant Anglican rejoicing? It would seem not. The Church of England Record’s report of June 1856 was cast in very low-key terms, and without any comments whatsoever, not even from Perry. (81) The Argus, however, was more forthcoming. (82) It is difficult to over-estimate the important of this measure, which has now become law. So far as regards the Church of England it is practically a revolution, for it entirely changes the form of Government which has hitherto prevailed in that church, and we may add that it is a revolution which has long been earnestly desired both by clergy and laity, not merely in the colonies, but in the parent country itself.

This was indeed, perceptive. The Act really was revolutionary. What had been accomplished was momentous. The Church Assembly which Perry convened in October 1856 under the provisions of the new Act was the first indisputably valid Synod of the modern Church of England. While so-called “synods” had been held earlier in New Zealand and in South Australia, their legal standing was uncertain.(83) Victoria’s Synod (or “Church Assembly”, as it was called until 1904) was the real thing and it quickly fostered the spread of synodical government throughout the whole Colonial Church. (84) Moreover, the debate on Colonial Church government, to which the Victorian contribution had been so significant, played a major role in the successful movement for the revival of the Convocations in England.(85) Anglicanism had entered upon a new age – hesitantly, perhaps, but quite definitely. Whether the Supreme Governor recognized the revolutionary nature of what she was doing when she assented to the Victorian Bill may, perhaps, be somewhat more doubtful.

One final footnote. Why do we call this “the 1854 Act” when it was so clearly not signed into law until 1856?

The simplest answer to that very reasonable question is that the Victorian Parliament has told us to do so. Originally, the Act had no “short title”, to use the technical expression.

But in an Act of 1904, which made a handful of amendments to it, Parliament at last 22

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– fifty years after the passage of the original Bill – provided it with a “short title”, a name: “The Church of England Act 1854.” (86) So we are fully justified in observing this year of 2004, as the year of the Act’s sesquicentenary. But we could also justify another celebratory occasion in two years’ time, when we could mark the sesquicentenary of the Act’s actual coming into force.

And a lecture on that occasion could examine the actual working of the Act over the 150 years of its operation, which I have not attempted to do tonight, but which is certainly, again, a story worth telling.

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Trinity Papers: This paper represents the 29th in a series published from time to time by Trinity College which focus upon broad issues facing the community in such areas as education, ethics, history, politics, and science.

Further Copies: Copies of this and other Trinity Papers are available upon request from: Tutorial Office Trinity College Royal Parade Parkville VIC 3052 Australia Telephone: 03 9348 7100 Facsimile: 03 9348 7610 Email: enquiries@trinity.unimelb.edu.au Trinity Papers can also be found on the website at: www.trinity.unimelb.edu.au/publications/papers/

About the Author: Robin Sharwood is a Professorial Fellow of the University of Melbourne within the Faculty of Law, at which he taught for many years, and remains a member of the Faculty.

He was the Fourth Warden of Trinity College (1965-1973), (of which he is now a Fellow), and then became the inaugural Executive Director of the Victoria Law Foundation (1974-1981).

He is a founding member of the (Victoria) Provincial Legal Committee of the Anglican Church of Australia, and served several terms on the Church’s National Canon Law Commission. He was Chancellor of the Diocese of Wangaratta from 1974 to 1999, and Chancellor of the Diocese of Ballarat from 1995 to 2002.

From 1963 to 2001, he served as a Lay Canon of St. Paul’s Cathedral, Melbourne.

He describes history as “an abiding passion since childhood”.

Copyright © Robin Sharwood 2004 24

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END-NOTES AND APPENDICES The following abbreviations are used:ADB

Australian Dictionary of Biography

Argus

The Argus, Melbourne daily newspaper

Border

Ross Border, Church and State in Australia 1788 – 1872, A Constitutional Study of the Church of England in Australia, London, SPCK, 1962

Carpenter

Edward Carpenter, Cantuar: The Archbishops in their Office, Cassell, London, 1971

Lowther Clarke

Henry Lowther Clarke, Constitutional Church Government In the Dominions Beyond the Seas and In other parts of the Anglican Communion, London, SPCK, 1924

DNB

Dictionary of National Biography, London, Smith, Elder & Co., 1892

Giles

R.A. Giles, The Constitutional History of the Australian Church, London, Skeffington & Son, 1929

Gladstone Diary

Foot M.R.D. and Matthew, H.C.G., eds. The Gladstone Diaries, Clarendon Press, Oxford, 1974.

Goodman

George Goodman, The Church in Victoria during the Episcopate of the Right Reverend Charles Perry, First Bishop of Melbourne. Prelate of the Order of St. Michael and St.George, London, Seeley and Co. Ltd., 1892.

Hansard

Parliamentary Debates (U.K.)

Magnus

Philip Magnus, Gladstone: A Biography, London, John Murray, 1963 edn.

PROV

Public Record Office Victoria

Record

The Church of England Record for the Diocese of Melbourne, Heath & Cordell, Printers and Publishers, Market Square, Geelong.

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Robin

A. de Q. Robin, Charles Perry, Bishop of Melbourne, The Challenges of a Colonial Episcopate, 1847-1876, Univ. of W.A. Press, 1967

Shaw

G.P. Shaw, Patriarch and Patriot: William Grant Broughton 1788 –1853: Colonial Statesman and Ecclesiastic, MUP, 1978.

SLV

State Library of Victoria

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END-NOTES 1. “The Windsor Report” is the name commonly given to the Report of the Lambeth Commission on Communion, prepared for the Churches of the Anglican Communion by a Commission under the Chairmanship of Archbishop Robin Eames, Archbishop of Armagh, and published in October 2004. The quotation is from the text of the Draft Covenant as printed in the Church Times of 22 October 2004, p.6.

2. See, for example, Lowther Clarke 10-12. The history of other Anglican bodies not part of the Church of England is not here examined, but it might be noted that the Episcopal Church of the United States of America held its first General Convention in 1785: ibid: p.199.

3. A useful summary of the sources of English canon law is given in E. Garth Moore An Introduction to English Canon Law, Oxford, Clarendon Press, 1967, pp. 8-9. The long-established but ill-defined authority of Bishops was implicitly recognized by the (Australian) General Synod in Section 3(2) of the Canon Law Repeal Canon 1989; note the use of the word “inherent”.

4.

See, for example, Garth Moore (previous note), pp. 10-16.

5. The Queen was quite prepared, in an argument with Gladstone over a proposed minor Church Bill, to describe herself as “the head” of the Church of England, a title which had been deliberately abandoned by the Crown (in favour of the title “Supreme Governor”) in 1559; quoted in S. Weintraub, Victoria – Biography of a Queen, Unwin Hyman, London, 1987, p. 537. The Queen “never quite got over the dislike she had taken to bishops as a toddler”: Oxford Companion to British History, OUP, 1997, p.

936 (I am indebted to Morna Sturrock for this delicious quotation: Bishop of Magnetic Power, Australian Scholarly Publishing, Melb., 2005, p. 224).

6.

Magnus, p. xiii.

7. For example, Magnus, pp. 49-50. Even during the period we are examining, when so many public issues were on his mind, Gladstone’s Diary, which is by no means verbose and comprises for the most part short engagement-book entries, nevertheless records a pre-occupation as to how he should record his “days of failure” in regard to “keeping guard in respect of impurity”: see entries for 31 May and 1 June 1850, Vol. IV, pp. 214-216. He was a self-flagellant, and tiny drawings of whips (reproduced in the published version) appear beside some of the dates; for the identification of the whip signs, see, for example, Diary, Vol. V, p. xxi (“The use of a scourge”), and for the recording of such signs, see, for example, Diary, Vol. IV, p. 216 (whip signs noted against 13 June and 22 June 1855). And yet, as Magnus stresses, he was, in fact, 27

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a “flawless examplar” of the 19th Century code of “respectability” (p. 105), and, as Magnus observes time and time again, naïve, innocent and unworldly: passim.

8. Magnus, who examines Gladstone’s strong religious convictions with care, hesitates to pin any particular label upon him – for example, that of “Puseyite”, but he makes it clear that Gladstone retained his “faith in the Catholicity of the Church of England: p. 97 and passim.

9.

Carpenter, pp300-311.

10. I have relied principally upon Shaw.

11. For Perry generally, I have relied principally upon Robin. On the particular point of Perry’s bigotry, his cold rejection of the welcome which the popular Father Geoghegan of St. Francis Church sought to extend to him on his arrival in Melbourne in 1848, in which Perry’s under-lying rudeness is not concealed by the stiff, formal politeness of his reply, is well-documented (for example, Robin, pp 46-7) and remains to this day in Melbourne’s folk-memory, to the embarrassment of modern Anglicans. One might note, too, because it was in public, his vituperative attack on Roman Catholics in his Visitation Charge to Melbourne Clergy, published as A Charge delivered to the Clergy of the Diocese of Melbourne at the Primary Visitation of Charles Perry, D.D., Bishop of Melbourne in 1852, Melbourne,1852.

12. Perry enrolled to study law at the Inner Temple in March 1828, and continued his legal studies until some time in 1831, when his health broke down and he returned to Cambridge, abandoning further thought of a legal career: Robin, p. 13.

13. Although I know of no contemporary comment on the point, it is curious that Stawell had obviously not been confirmed as a youth in Ireland, despite being the grandson of a Bishop and the son of a devout mother. This may attest to youthful “doubts”, or even rebelliousness, but it may have been the result of some laxity in Irish confirmation practice at the relevant time.

14. My principal source for Stawell has been 6 ADB pp 174 – 177, but I have read much of him elsewhere, as he has long interested me. Thus, I have a photocopied version of Lady Stawell’s privately printed My Recollections, London, 1911, and I have discussed him with other historians, such as Paul de Serville, Ruth Campbell, Damian Powell and John Bennett. Bennett’s Sir William Stawell, The Federation Press, 2004, was published well after this lecture was delivered, although Professor Bennett had shown me drafts of some parts of it; as Professor Bennett knows, I am unable to agree with his assessment of Stawell’s reputation for personal behaviour as a young man (pp.

14-15), or his interpretation of Stawell’s “conversion experience” (pp. 26-29).

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15. The most useful text on these matters generally is Border. Broughton’s Letters Patent as Bishop of Sydney (1847) are published in Lowther Clarke pp. 39-44. Perry’s Letters Patent as Bishop of Melbourne (1847) are published in Robin pp. 205-212. The two N.S.W. statutes were (to use the names commonly given to them) the “Bourke Act”, 7 Wm. IV No. 3 (1836), which applied to all denominations receiving financial aid from the Crown, and the “Church Act”, 8 Wm IV No. 5 (1837), which applied only to the Church of England, and which, in addition to clarifying certain aspects of the Bourke Act, provided for the election of churchwardens, thus introducing the rudiments of parish structures, and affirmed the disciplinary powers of Bishops over clergy. The general rule on the question of the “inheritance” of English law was that it applied in a colony to the extent that it was applicable to the circumstances of that colony – a limitation which could often be very difficult to determine with confidence in particular instances. (Of course, some Imperial legislation did apply directly and intentionally to a colony or colonies.)

16. 25 Hen. VIII c. 19 (1533). Repealed in the reign of Mary, it was revived in 1558 in the reign of Elizabeth I: 1 Eliz. c.I. S.2.

17. On the Church, Melbourne, 1851, pp. 13-14. Thus, writing to Broughton on 4 July 1850, Perry said that he was convinced that the church would “never gain a hold of the affections of the people, unless there be something of the popular element introduced into its constitution”: quoted Robin p.57.

18. 8 Wm. IV No. 5 (1837). For the Letters Patent of Broughton and Perry, see note 15.

19. Robin quotes a number of Perry’s statements on this matter at pp. 54-57. Thus, in an address to the Melbourne Diocesan Society in August 1850, Perry said: “I am upon principle most strongly opposed to despotism of any kind and I consider such a power in the bishop to have a very injurious tendency”: quoted Robin p. 56.

20. He served as Colonial Secretary under Peel in 1845-1846, until Peel resigned office. He had been even more briefly Under-Secretary for the Colonies in 1835, again under Peel. Magnus considers that, as Colonial Secretary, Gladstone was “only fairly successful”: p. 78.

21. 13 and 14 Vic. c. 59.

22. As to his Diary, see note 7. I have worked in his great library at Hawarden, and have studied there the collection he made of relevant colonial material and other papers. I have also examined the Gladstone Papers in the British Library, which contain (inter alia) many drafts he made for possible legislation, and Gladstone material relating to the Colonial Church in the Clydd Public Record Office, Wales.

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23. Of the many accounts of the Gorham Case, a useful and brief one is that of Carpenter, pp. 302-303.

24. As Gladstone is concerned simultaneously with the Gorham Case and what he calls the “Colonial Church Clauses”, it is not always possible to be sure which was uppermost in his mind when (as his Diary records over this period) he saw or wrote to such eminent church lawyers as Lushington and Phillimore. He is also engaged in a study of the Royal Supremacy, for which, too he may have wished to consult church lawyers.

25. Magnus. p. 96 26. Magnus, pp. 96-97.

27. Magnus, p.94. Gladstone’s Diary shows that by 6th April he was already pessimistic about Jessy’s condition.

28. Hansard, 3rd Series, Vol. CX, cols. 1195-1225 (House of Commons); Vol. CXI, cols. 1056-1067 (House of Lords). Gladstone’s “Colonial Church Clauses”, promoted in the House of Lords by the Bishop of Oxford, finally failed on 11 June 1850, when the Bishop withdrew them. Although Gladstone’s Diary shows that he saw the Bishop of Oxford on that day and the following day, he makes no comment on this outcome.

29. As to plans for a conference in 1848, see Shaw, pp. 213, 219. Bishop Selwyn (N.Z.) visited Broughton in 1842, but this did not amount to a formal conference, although matters of common concern were discussed: Shaw, pp. 148-150.

30. Robin, pp. 55-56.

31. Robin, pp. 57-60.

32. Published since this lecture was delivered: Pacifica 18, Feb 2005, pp. 67-84.

33. The Minutes of the Conference are printed as “Document K” in Giles, pp. 237247. For accounts of the conference, see Border pp. 166-181; Giles pp. 75-82; Robin pp. 64-71; Shaw 234-241; Bruce Kaye “The 1850 Bishops Conference and the Strange Birth of Australian Synods”, The Sydney Smith Lecture, Melbourne, November 2000.

34. Border, pp. 200-201.

35. Minutes of a Conference of the Clergy and Laity of the United Church of England and Ireland in the Colony of Victoria…. June 24th to July 9th, 1851, Melbourne, 1851.

Robin pp. 78-81. Border, pp. 199-203.

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36. As Frances Perry, the Bishop’s wife, wrote to a friend: “Melbourne, Oct. 4th, 1851.

Gold! gold! gold! My dear A., we are gone mad with gold; and what is to be the end of it no one knows.” A graphic description of the effect of the gold discoveries on the life of Melbourne in those early months follows: A. de Q. Robin, ed. Australian Sketches: The Journals and Letters of Frances Perry, Queensberry Hill Press, Carlton, 1884, pp.

154-157. Amongst the more scholarly histories, see Geoffrey Serle The Golden Age, MUP, 1963, Ch. I “The Early Gold Rushes, 1851-1852”. Between 1851 and 1861, Victoria’s estimated population rose from 97,489 to 541,800: ibid. p. 382.

37. Border, p. 192.

38. Appendix A 39. The Colonial Bishops Bill 1852 (as it was commonly called) had the following Parliamentary history (House of Commons only):

Leave to introduce Bill:

Second Reading:

Committee :

Border, pp. 193-195.

119 Hansard, 3rd Series, 880-881 120 Hansard, 3rd Series, 1263-1278; 121 Hansard, 3rd Series 738-739, 742-791.

122 Hansard, 3rd Series, 1204-1236.

40. For Pakington’s criticism, see 121 Hansard, 3rd Series, pp. 749-751. Gladstone’s Diary for 18 May 1852 records: “… Evg. at home: music, but I was down-hearted about my poor Bill & could not sing.” Vol. IV, p. 428. The editorial note explains that Gladstone had learned that the government had decided to oppose his Bill.

41. The Colonial Church Regulation Bill, 1853, has the following Parliamentary history (all references are to 129 Hansard, 3rd Series):

House of Lords: First Reading Second Reading Committee Third Reading

House of Commons:

First Reading

Second Reading

157 (no debate) 343 (no debate) 512-533 697 (no debate – the Bill passed).

979 (no debate; indexed, but no reference appears).

1207 – 1214 (the Bill lapsed)

42. Carpenter, pp. 307-309

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43. See end-note 41.

44. See end-note 41.

45. Kinnaird, at 129 Hansard, 3rd Series, p. 1214.

46. One further and equally unsuccessful Imperial Bill in this sequence will not be here examined, because it was overtaken by events in Victoria. On 20 March 1854, Sir John Russell, the Solicitor-General, introduced into the House of Commons a one-clause Bill to the effect that “no statute at present in operation should be construed in such a way as to impede the assembling of colonial bishops, clergy and laity for making laws by which they could govern themselves” (Border, p. 197). It met with the usual opposition and was withdrawn. It was occasionally referred to in the Victorian discussions of 1854 as “the Solicitor-General’s Bill”, prior to the news reaching Melbourne that it had failed. For Gladstone’s later overview of these events, see Appendix B. 47. Privy Council decisions in the 1860s, especially Long v the Bishop of Cape Town (1863) 1 Moo. P.C. (N.S.) 411 (the so-called “Colenso Cases”), ruled that Letters Patent from the Crown were no longer legally effective as a basis for ecclesiastical authority and jurisdiction once a colony became fully self-governing. Victoria became fully self-governing, with responsible government, in 1856. The effect of the “Colenso” decisions on Perry’s Letters Patent remained unclear for the remainder of his episcopate; he resigned in May 1876.

48. For the 1854 conference, see Border, pp. 204-206; Robin, pp. 87-89; Giles, pp.

87-89.

49. Thus, Giles observes that “Only in its details did” the Victorian Bill “differ from that of Archbishop Sumner”: p.88. On the day after the Conference, Perry wrote a long open letter “To the Members of the United Church of England and Ireland, in the Diocese of Melbourne”. He emphasized again that “the simplest object of the Bill which had been adopted by the Conference” was to provide for the constitution of an assembly of Bishop, Clergy and Laity to be the “governing body of the Church of England in the colony”, and to “specify the matters and persons, with respect to which its acts and regulations shall be binding”. He noted that the Victorian legislature had already recognized the principle “that the Legislature will afford to particular churches such assistance as is necessary for enabling them to manage their local affairs”, citing the legislation provided for the Presbyterian Church of Victoria, and commenting that “all we desire is, that this principle… should be carried out in our own”. The political importance of this letter, designed to ensure that the Church presented a unanimous front to the Legislature, is emphasized by Robin, pp. 89-90. The letter was also published (but mis-dated) in the (U.K.) Colonial Church Chronicle for November 1854 (pp. 173-179), no doubt in part for the same reason.

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50. As there was no official record of debates in the legislature at this stage, the debate is followed as reported (in detail) in The Argus.

51. Argus , 16th November 1854.

52. Argus, 21st and 24th November 1854 (Committee stage).

53. Robin, pp. 90-91. Perry seems not to have been aware of how serious Roman Catholic concerns were until he went to England in 1855, and there discovered that the Colonial Secretary had received a memorial in opposition to the Bill from the Roman Catholic bishop of Melbourne, Bishop Goold: see below p.17.

54. Border, at p. 206, incorrectly gives the date for the passage of the Bill as 15th November 1856, and records some votes cast against it. But 15th November was the date of the Second Reading, and the voting figures given by Border relate to the Division on that Reading, following debate.

55. These N.S.W. Statutes had been “inherited” by Victoria on her erection as a separate colony, and by this stage the “Bourke Act” had actually been replaced by a Victorian Act along similar lines: (1853) 16 Vict. No. 28. For convenience, I have retained the name the “Bourke Act”.

In 1854, however, the N.S.W. “Church Act” (1837), 8 Wm. IV No. 5, was still in force in Victoria in its “inherited” form. It was repealed in Victoria by Act No. CLVII (1862), although only prospectively. I have not discovered whether it was ever repealed in full; a proposal so to repeal it was passed by the (Melbourne) Church Assembly in 1873 (Melbourne Church of England Messenger, 1873, p. 8), but I have not been able to trace the outcome. Section 4 of the 1862 Act authorized the appointment of trustees for church lands “by any regulation act or resolution passed or to be passed under the authority of” the 1854 Act; this section either confirmed or added to the powers of a Church Assembly under the 1854 Act – the point is unclear.

56. Pursuant to the provisions of the (UK) Australian Colonies Government Act, 1850.

57. Robin, p. 91 58. Benson and Esher eds. The Letters of Queen Victoria… 1837-1861, London, 1908, Vol. III, pp. 123-124.

59. ibid. p. 135.

60. My account of Perry’s mission on behalf of the Bill relies principally on his own long account, delivered at a public meeting in Melbourne on Saturday, 19th April, 1856, 33

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and reported, apparently verbatim, in The Argus, 21st April, 1856, pp. 5-6. Quoted details are from this source, unless otherwise indicated.

61. Goodman, p. 245. But Goodman, in his “Introduction”, made it clear that Perry had not read his manuscript, quoting a letter in which Perry said: “I have not myself read it, nor am I acquainted with its contents”. p. XVIII. 62. Australian Joint Copying Project, CO309, Reel 822. The opinion was signed by J.D. Harding, A.E. Cockburn and Richard Bethell. Cockburn was Attorney-General and Bethell was Solicitor-General; both were later elevated to the Bench.

63. Record, September 1855.

64. Thus, Gladstone saw or wrote to Molesworth on 4th April, 18th April, 22nd June, 11th July and 12th July. He saw or wrote to Labouchere on 23rd July and 3rd December, and, on 1st March 1856, both wrote to him and later “Dined with the Laboucheres”: Diary, Vol. V. 65. DNB, Vol XXXI, pp. 367-369.

66. ibid 67. Goodman, p. 246 68. Colonial Church Chronicle, Vol. IX, September 1855, pp. 103-105.

69. Goodman, p. 246 70. This is a much clearer and more expansive account of Perry’s dealings with Labouchere than that which appears in Goodman, pp. 245-246.

71. Lowther Clarke, pp. 85-86.

72. “insured” – obviously used here in the sense of “guarded against”.

73. Lowther Clarke’s transcription of this opinion runs (on the printed page) into his continuing account of events, without paragraphing or use of quotation marks. I am assuming that the opinion (or, at any event, Clarke’s quotation from it) ends with the words “… it is intended at the same time to consolidate.” (p. 86). I must emphasize, however, that at present I know of no other source for the text of this opinion. Lowther Clarke further complicates matters by then stating (in the same paragraph) that “the Bill thus described was brought before the House of Commons by Mr. Gladstone, and was then reserved for Her Majesty’s pleasure. The approval was given December 12, 1855,

by Order-in-Council”. This is wholly incorrect. No further Imperial Act was necessary, and the statute-book shows that none was passed. Gladstone brought no Bill before 34

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the House of Commons, because Parliament was not sitting: it had been prorogued on 14th August 1855 and did not meet again until 31st January 1856. The Queen’s Assent to the Victorian Bill was given by Order-in-Council of 25th February 1856 – not of 12th December, 1855.

I deal in Appendix C with the puzzling reference by a number of authors to the date 12th December 1855.

74. This is the date which appears (in a different hand) in the top right-hand corner of the first page of Labouchere’s despatch – see Appendix D. 75. The Proclamation is reproduced in Appendix E. 76. Victorian Government Gazette, 6th June 1856.

77. The Oxford Dictionary of Quotations.

78. The Times, 2nd Jan. 1856, p. 1 (shipping advertisement).

79. This account of Perry’s return is drawn from The Church of England Record for May 1856, which in turn took its material from The Argus. I prefer this contemporary account to that found in Goodman, pp. 246-248, who appears to conflate the three separate speeches which Perry made on the deck of the “Walmer Castle”, at “Bishopscourt”, and in Geelong.

80. Record, June 1856, p. 97.

81. Later, however, he was to confess pride in his achievement: Robin, pp. 93, 96.

82. The Argus, Wednesday 11th June 1856. The Act is the subject of the long leader in that edition. This is the newspaper article from which Goodman quotes an extract (pp. 252-3), without specific attribution and with minor transcription errors. I have not reproduced the entire leader.

83. The term “uncertain” is used deliberately. The issue was debatable. But without clarifying legislation by a competent legislature, there was inevitably, in the mid-19th Century setting, a real element of doubt.

84. Robin, pp. 94-5.

85. Thus, legal and ecclesiological issues which called for such close examination in the debate on governance in the Colonial Church bore also upon the place of the English Convocations and (in due course) the introduction of lay representation.

86. Act No. 1947, 1904, Section I.

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APPENDIX A In 1851, Gladstone gave a paper to the Bishops of the Scottish Episcopal Church entitled “On the functions of laymen in the church”. It was printed (at the request of the Bishops) in 1852, reprinted in 1869, and was published as the first essay in W.E. Gladstone Gleanings of Past Years, Vol. VI, London, John Murray, 1879. The following extract illustrates Gladstone’s profound concern at the position of the Colonial Churches at the time (from Paras. 66-68):The vantage ground, as I understand it, which your Reverences [i.e. the Scottish Bishops] possess, and which is wanting in the colonial Churches, is twofold. First, an entire freedom from the fetters and entanglements of the law: secondly, a defined ecclesiastical ‘platform’, and a legislative power in actual existence, with a clear, unquestioned title.

67. But how different is the condition of the Churches in the Colonies! It is scarcely too much to say that, while for the purposes of internal subordination they are without law or legal sanctions of any kind, they are subject, without mitigation, to the worst of its inconveniences. On every side, they are involved in the meshes of the net of legal doubt. There is doubt whether, if their members meet in Synod, they are subject to penalty; a doubt whether they can pass any Canon; a doubt whether they can set up even phantom officers in ecclesiastical courts; a doubt as to whether they can come to any binding voluntary agreement whatsoever amongst themselves.

Of one thing only there is no doubt, that they are practically without the means, either of protecting innocence against oppression, or of punishing wrong, or of fulfilling for themselves any of the purposes of Church government. Nor, as I believe, can they, without an Act of the Imperial Parliament, be relieved from these very cruel disabilities, or attain to that footing of equality with the Presbyterian and Dissenting denominations in the Colonies, to which they fondly and ardently aspire…..

68. But suppose the colonial Churches emancipated, how are they to proceed to act?

They have no existing framework of a legislative organ; they have not even the pattern of an English Convocation to work by; for they have no deans, no chapters, in some dioceses no archdeacons, in many no parishes. They have under God two constitutive elements only, the Apostolical power in the Episcopate, and their own good principle and good sense. That, by virtue of the great gifts of the covenant of Christ, they will work their way to an adequate organisation, what they have already done, in a state almost chaotic, affords us ample assurance. Yet at the same time we must admit that they will have to begin by digging the foundations, and then laying, with elaborate care, every stone of the building. For the Scottish Episcopal Communion, again, I say, these difficulties do not exist. We have foundations already and building too……

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APPENDIX B Gladstone wrote various autobiographical sketches towards the end of his life, with a view, never realised, to an eventual complete autobiography. The following extract is from a sketch dated 9th September 1897 entitled “1846-52. An Interval – No. 2”.

My source is Brooke, J. and Sorensen, M. The Prime Minister’ Papers: W.E. Gladstone 1- Autobiographica, London, HMSO, 1971, pp. 68-71.

Three observations might be made about this retrospective account.

First, it is curious that Gladstone accords pride of place to his 1852 Bill, rather than to his strenuous and carefully- prepared attempts to add “Church Clauses” (as he called them) to the 1850 Bill which became the Australian Colonies Government Act of 1850.

Secondly, it is to be noted that he makes no mention of Bishop Perry. This seems supportive of the view, which I express later in the paper, that Perry made no attempt to secure Gladstone’s co-operation when he was in England in 1855 to lobby for the Royal Assent to the Victorian Bill. (See pp. 17-19) Thirdly, while Gladstone’s recollections in old age are selective and incomplete, more than 40 years after the events he is recalling, his over-view still seems to me to be perceptive, revealing and useful.

The condition of the colonial church was [at] this time hampered and perplexed by the conflicting evils of arbitrary rule, impotence, and ambiguity. The colonial legislatures did not regulate or concern themselves with it. I had consulted Archbishop Howley during his lifetime, and found him desirous to give up what was for them a pure fiction of establishment which held them to be the church of all the people of the colony, subject to the freedom of those who desired to separate. I was very desirous to obtain a liberating measure which should place these churches in a condition legally to make resolutions for the government of their own affairs on the same footing as other religious bodies, that is by pure compact of consent. Thesiger (Lord Chelmsford) assisted me in 1851 with his advice: next year when in office he forgot that he had given it and condemned what he had recommended. But he was perfectly honest, and the ground was slippery. In 1852 I bought in my bill. Pakington, the Colonial Secretary, was weak and not very well affected. Bethell, extremely hostile, contended that the bill set up a new church with state authority. I think only Page Wood (Lord Hatherley) supported me. It may be that the language of my bill was not well chosen. I was obliged to withdraw it. One or more efforts were made in subsequent years. In one of these Bethell himself was concerned. It proved to be a curious case of solvitur ambulando.

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acquired self-consciousness and corporate feeling: thus, aided by high individualities such as Bishop George Selwyn, Bishop Medley of New Brunswick and later on Bishop Gray, each colony set about doing for itself what it required and built for itself its own house which in spite of all storms has with support from the growth of Church feeling at home provide watertight. I believe the abortive bill of 1852 did good, in giving what was probably the first definite impulsion to the cause.

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APPENDIX C What Occurred on 12th December 1855?

This date seems to have entered the literature on the 1854 Act with Goodman. In an obscurely-worded passage on p. 248, Goodman (1892) wrote that “The signature bore date, London, December 12th, 1855…”; he seemed to be referring to the date of the Royal Assent, or, perhaps, to the date of a despatch from the Colonial Secretary advising that the Royal Assent was to be given.

There is no doubt, however, that the Royal Assent was given on 25th February 1856.

Equally, an examination of the files in the PROV shows that no despatch to Melbourne left the Colonial Secretary’s office on 12th December 1855.

Nevertheless, many later writers accepted one or other of these interpretations of the passage in Goodman.

Thus, Lowther Clarke (1924) adopts 12th December 1855 as the date of the Royal Assent (p. 86), as does Giles (1929), p. 89.

Border (1962) assigns the date to a despatch from Labouchere to Hotham “announcing the Queen’s assent and that the Bill had become law” (p. 208); his footnotes suggest that he is relying upon Goodman, although this is reading even more into Goodman than his obscure text would seem to warrant.

Robin (1967), at p. 92, states the position as Border had put it, again purporting to rely on Goodman; in his ADB entry for Perry, he states: “On 12 December 1855 Act 18 Vic. no. 45 became law” (5 ADB at p. 434). Kaye (2004) (see end-note 33) adopts 12th December 1855 as the date of the Royal Assent, without citing authority. Ian Breward A History of Australian Churches, Allan & Unwin, 1993, dates the “Crown assent” as given in December 1855, citing Robin and Border (p. 50).

It seems fair to assume that something of significance in the story of the 1854 Act did happen on 12th December 1855, but I have not so far been able to discover what this was.

It could not have been anything of a Parliamentary nature, as Parliament had been prorogued on 14th August 1855 and did not meet again until 31st January 1856.

One possibility has occurred to me. The Times for 12th December, 1855 reported that a long (three-hour) Cabinet meeting had been held on the previous day (11th December), and that one of those present was “Mr. Secretary Labouchere”. It is quite possible that 39

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Labouchere gave some preliminary report on the Victorian Bill at that meeting. Perhaps one of Goodman’s sources came to hear of this, but misinterpreted its significance, so that Goodman, while making a slip as to the meeting date (confusing it with the date of the report in The Times), felt confident enough to cite it as a crucial date of some kind in his text. Unfortunately, there seems to be no way of testing this theory authoritatively.

Until the First World War, Cabinet agenda were not prepared, Cabinet minutes were not kept, and members attending were even forbidden to take notes: Chambers Encyclopaedia (1950), Vol. 2, entry for “Cabinet”, p. 751. If the Prime Minister’s letter to The Queen following the Cabinet meeting survives in the Royal Archives at Windsor (which I have not explored), it may shed light on the matter; but it may not, as the Prime Minister used his discretion in reporting Cabinet meetings to The Queen, and his letter certainly did not amount to a comprehensive (and unofficial) set of Minutes.

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APPENDIX D Here is reproduced in facsimile the despatch from the Colonial Secretary, Labouchere, to Sir Charles Hotham of 1 February 1856, informing him that the Queen was to be advised to give her Royal Assent to the 1854 Bill. The annotation (in a different hand) on the top right hand corner of the first page presumably records the date of the receipt of the Despatch in Melbourne: 28 April 1856.

The Despatch is bound up in Despatches from the Secretary of State, Vol 9, 1856, in PROV, and is here reproduced with the permission of the Keeper of Public Records, Public Record Office, Victoria, Australia.

The formal citation for the document is: PROV. VPRS 1087, Despatches from the Secretary of State, Vol 9, 1856, pp. 161-169.

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APPENDIX E Here is reproduced in facsimile, the Proclamation of the Acting Governor of Victoria (His Excellency Major-General Macarthur), dated 3rd June 1856, advising receipt of the Despatch announcing that the Royal Assent had been given to the 1854 Bill, together with the appended Order in Council of 25th February 1856. Source: Victorian Government Gazette, p. 939.

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APPENDIX F Here is reproduced in facsimile the 1854 Act as it was first published – as a Supplement to the Victorian Government Gazette of Friday, 27th June 1856 – No. 78.

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