This arrangement, however, did not provide for appeals generated by the decisions of the colonial courts. An application was made to allow the colonial presbyteries representatives in the general assembly. This measure would have embarrassed a national church, and thus (1834) the general assembly repudiated an appellate jurisdiction.
In various forms Colonel Snodgrass, while acting lieutenant governor, expressed an interest in the church of his native country. He called a synod of ministers, elders, and delegates, by proclamation, to be held at Hobart Town, to effect the settlement of the church, and thus to prepare the way for its endowment. Many, favorable to the object, doubted the legality of the meeting, and the power of any officer to proclaim the assembling of a body not recognised by the legislative council. The presbyterians, however, maintained that they were qualified to act under convocation by the crown, independently of parliamentary or local legislative sanction—that the meeting or synod only prepared the preliminaries antecedent to the intervention of law. At the time appointed the synod met: in the meantime Sir John Franklin was advised that the proclamation of Snodgrass was irregular; he therefore sent his private secretary, Captain Maconochie, to request the assembly to stay proceedings, with an intimation of his friendly consideration of their claims. They, however, considered that to disperse would compromise their rights, and therefore chose a moderator. At this stage, a counter proclamation, hastily prepared, was brought by a messenger from the governor, and the convocation dissolved.
However conclusive this reasoning to Scotchmen, the Anglicans were little disposed to admit its force. They asserted that the faith of the sovereign was the imperial faith, and that it was within the competence of the British legislature to set up an exclusive establishment of their clergy. The usual argument against the universal equality of the Scots' national church, was the fact that the laws of England, and not the laws of Scotland, were binding in the colonies.[218] To this it was replied, that treaties, on which the imperial legislative power was founded, were the limits of its action; and that the ascendancy of English law in the colonies of Australia depended on a parliamentary enactment passed by the representatives of Scotland; subject, however, to the restrictions of the treaties in virtue of which Scotchmen were contented to sit on the benches of Saint Stephen.[219]
Archdeacon Hutchins denied that either treaty or law prohibited a preferable claim, and remarked that "opening the door to two co-existing establishments would shortly admit others, and thus prepare for the destruction of all."
It was not affirmed by the Scotch, that they possessed an inherent right to the privileges of an establishment: both, or neither, was their motto. The colony, they affirmed, was not English nor Scotch, but British. It was the opinion of lawyers, however, that beyond the seas the churches of England and Scotland depended for their rights on parliamentary or colonial enactment; and that whenever obscure, a declaratory statute must fix the sense of a treaty, and decide whether an exclusive endowment of any class of clergymen was beyond the competence of imperial or local law.
The passing of an act in New South Wales, granting stipends in proportion to the adherents, from £100 to £200, and the prospect of a similar act in Van Diemen's Land, led to urgent applications for ministers by the heads of various churches. Bishop Broughton published a strong appeal to the numerous unbeneficed clergymen in Great Britain, to whom he represented these colonies as a field of great promise. He stated that the obtaining ministers, "was a matter of life and death."
The son of the illustrious Coleridge exerted himself on behalf of the church of England, and based his chief appeal on the inadequacy of the penal laws at home; the misery endured by the poor; the numerous crimes originated by the refinement of society; and the principle of compensation, which bound the English people to supply in colonies not less instruction than they must have furnished in gaols.[220]
A fund was contributed, though of no great amount; but the Society for Promoting Christian Knowledge supplemented the colonial pay, which was found inadequate to secure men of character and education. Compared with the ground to be occupied, the church of Scotland was more successful in candidates for this important sphere.
Dr. Lang lost no time in proceeding to Great Britain, and obtained a numerous band of clergymen and schoolmasters, whose passage was defrayed by the colonies.
The Rev. Thomas Dugal, and other ministers of the synod of Ulster, expressed their willingness to undertake colonial charges. Lord Glenelg enquired of Dr. M'Farlane, the convener of the general assembly's committees, whether their appointment would be sanctioned by the church of Scotland. To this he replied, that they might be "taken under charge of presbyteries in connexion with their church, on their adhibiting the subscription, and coming under the engagements required by their church, but no longer."