duced for our conveniency; but that the English laws, so far as I have distinguished them, should be binding upon us, antecedent to our having a legislature of our own, is of absolute unavoidable necessity. But no such necessity can be pretended, in favour of the introduction of any religious establishment whatsoever; because, it is evident that different societies do exist with different ecclesiastical laws, or, which is sufficient to my purpose, without such as the English establishment; and that civil society, as it is antecedent to any ecclesiastical establishments, is in its nature unconnected with them, independent of them, and all social happiness completely attainable without them.

Secondly, To suppose all the laws of England, without distinction, obligatory upon every new colony at its implantation, is absurd, and would effectually prevent the subjects from undertaking so hazardous an adventure. Upon such a supposition a thousand laws will be introduced, inconsistent with the state of a new country, and destructive of the planters. To use the words of the late attorney-general, sir Dudley Ryder, "It would be acting the part of an unskilful physician, who should prescribe the same dose to every patient, without distinguishing the variety of distempers and constitutions." According to this doctrine, we are subject to the payment of tithes, ought to have a spiritual court, and impoverished, as the first settlers of the province must have been, they were yet liable to the payment of the land tax. And had this been the sense of our rulers, and their conduct conformable thereto, scarce ever would our colonies have appeared in their present flourishing condition; especially if it be considered, that the first settlers of most of them, sought an exemption in these American wilds, from the establishment to which they were subject at home.

Thirdly, If the planters of every new colony carry with them the established religion of the country from whence they migrate; it follows, that if a colony had been planted when the English nation were pagans, the establishment in such colony must be paganism alone: and, in like manner, had this colony been planted while popery was established in England, the religion of papists must have been our established religion; and if it is our duty to conform to the religion established at home, we are equally bound, against

*This practice is very dangerous, and is assuming little less than a legislative authority.

+ Afterwards lord chief justice of the King's Bench. These were his words, in an opinion against the extent of the statute of frauds and perjuries.

conscience and the bible, to be pagans, papists, or protestants, according to the particular religion they shall please to adopt. A doctrine that can never be urged, but with a very ill grace indeed, by any protestant minister?

Fourthly, If the church of England is established in this colony, it must either be founded on acts of parliament, or the common law. That it is not established by the first, I shall prove in the sequel; and that it cannot be established by the common law, appears from the following considera

tions :

The common law of England, properly defined, consists of those general laws to which the English have been accustomed from time whereof there is no memory to the contrary; and every law deriving its validity from such immemorial custom, must be carried back as far as to the reign of Richard I. whose death happened on the 6th of April, 1199. But the present establishment of the church of England was not till the fifth year of queen Anne. And hence it is apparent, that the establishment of the church of England can never be argued from the common law, even in England; nor could be any part of it, since it depends not for its validity upon custom immemorial. And therefore, though it be admitted, that every English colony is subject to the common law of the realm, it by no means follows, that the church of England is established in the colonies; because the common law knows of no such religious establishment, nor considers any religious establishment whatever, as any part of the English constitution. It does, indeed, encourage religion; but that, and a particular church government, are things entirely different.

I proceed now to a consideration of the second argument insisted on to prove an episcopal establishment in the colonies, founded on the act which established the church of England, passed in the fifth year of queen Anne, recited and ratified in the act for a union of the two kingdoms of England and Scotland. And that this act does not establish the church of England in the colonies, has been so fully shown by Mr. Hobart,* in his second address to the episcopal separation in New-England, that I shall content myself with an extract from the works of that ingenious gentle-, man, which, with very little alteration is as follows:

"The act we are now disputing about, was made in the fifth year of queen Ann, and is entitled, an act for securing

*A minister of one of the churches at Fairfield, in Connecticut.

the church of England as by law established. The occasion of the statute was this: The parliament in Scotland, when treating of a union with England, were apprehensive of its endangering their ecclesiastical establishment. Scotland was to have but a small share in the legislature of Great Britain-but forty-five members in the house of commons, which consists of above five hundred, and but sixteen in the house of lords, which then consisted of near an hundred, and might be increased by the sovereign at pleasure. The Scots, therefore, to prevent having their ecclesiastical establishment repealed in a British parliament, where they might be so easily out-voted by the English members, passed an act previous to the union, establishing the presbyterian church within the kingdom of Scotland, in perpetuity, and made this act an essential and fundamental part of the union which might not be repealed, or altered by any subsequent British parliament; and this put the English parliament upon passing this act for securing the church of England. Neither of them designed to enlarge the bounds of their ecclesiastical constitution, or extend their establishment farther than it reached before, but only to secure and perpetuate it in its then present extent. This is evident, not only from the occasion of the act, but from the charitable temper the English parliament was under the influence of, when they passed it. The lord North and Grey offered a rider to be added to the bill for an union, viz. That it might not extend to an approbation or acknowledgement of the truth of the presbyterian way of worship, or allowing the religion of the church of Scotland to be what it is styled, the true protestant religion. But this clause was rejected. A parliament that would acknowledge the religion of the church of Scotland, to be the true protestant religion, and allow their acts to extend to an approbation of the presbyterian way of worship, though they might think it best to secure and perpetuate the church of England within those bounds, wherein it was before established, can hardly be supposed to have designed to extend it beyond them.

"The title of the act is exactly agreeable to what we have said of the design of it, and of the temper of the parliament that passed it. It is entitled, an act not for enlarging but for securing the church of England, and that not in the American plantations, but as it is now by law established; which plainly means no more than to perpetuate it within its ancient boundaries.

"The provision made in the act itself, is well adapted to this design; for it enacts, that the act of the 13th of Eliza

beth, and the act of uniformity, passed in the 13th year of Charles II. and all and singular other acts of parliament then in force for the establishment and preservation of the church of England, should remain in full force for ever; and that every succeeding sovereign should, at his coronation, take and subscribe an oath to maintain and preserve inviolably the said settlement of the church of England, as by law established, within the kingdoms of England and Ireland, the dominion of Wales, and town of Berwick upon Tweed, and the territories thereunto belonging. This act doth not use such expressions, as would have been proper and even necessary, had the design been to have made a new establishment; but only such as are proper to ratify and confirm an old one. The settlement, which the king is sworn to preserve, is represented as existing previously to the passing this act, and not as made by it. The words of the oath are, to "maintain and preserve inviolably the said settleIf it be asked, what settlement? the answer must be, a settlement heretofore made and confirmed by certain statutes, which for the greater certainty and security are enumerated in this act, and declared to be unalterable. This is the settlement the king is sworn to preserve, and this settlement has no relation to us in America. For the act, which originally made it, did not reach hither; and this act, which perpetuates them, does not extend them to us."

ment."

It is a mistake to imagine, that the word territories necessarily means these American colonies. "These countries are usually in law, as well as other writings, styled colonies or plantations, and not territories. An instance of this we have in the charter to The Society for propagating the gospel in foreign parts." And it is the invariable practice of the legislature in every act of parliament, both before and after this act, designed to affect us, to use the words colonies, or plantations. Nor is it to be supposed, that, in so important a matter, words of so direct and broad an intent, would have been omitted. "The islands of Jersey and Guernsey were properly territories belonging to the kingdom of England before the union took place; and they stand in the same relation to the kingdom of Great Britain since. The church of England was established in these islands, and the legislature intended to perpetuate it in them as well as in England itself; so that as these islands were not particularly named in the act, there was occasion to use the word territories, even upon the supposition that they did not design to make the establishment more extensive than it was before the law passed." Further, in order to include

the plantations in the word territories, we must suppose it. always to mean every other part of the dominions not particularly mentioned in the instrument that uses it, which is a construction that can never be admitted: for, hence it will follow, that those commissions which give the government of a colony, and the territories thereon depending, in America, (and this is the case of every one of them) extend to all the American colonies, and their governors must of consequence have reciprocal superintendencies; and should any commission include the word territories generally, unrestricted to America, by the same construction, the governor therein mentioned, might exercise an authority under it not only in America, but in Africa and the Indies, and even in the kingdom of Ireland, and perhaps, in the absence of the king, in Great Britain itself. Mr. Hobart goes on, and argues against the establishment from the light in which the act of union has, ever since it was passed, been considered.

Dr. Bisse, bishop of Hereford, (says he) a member of the society, preached the annual sermon, February 21st, 1717, ten years after the act of union took place; and he says, it would have well become the wisdom wherewith that great work (the reformation or establishment of the church of England,) was conducted in this kingdom, that this foreign enterprise, (the settlement of plantations in America,) also should have been carried on by the government in the like regular way. But he owns the government at home did not interpose in the case, or establish any form of religion for us. In truth (says his lordship) the whole was left to the wisdom of the first proprietors, and to the conduct of every private man. He observes, that of late years the civil interest hath been regarded, and the dependance of the colonies, on the imperial crown of the realm, secured: but then, with regard to the religion of the plantations, his lordship acknowledges that the government itself here, at home, sovereign as it is, and invested doubtless with sufficient authority there, hath not thought fit to interpose in this matter, otherwise than in this charitable way: it hath enabled us to ask the benevolence of all good christians towards the support of missionaries to be sent among them. Thus bishop Bisse thought as I do, and that the act of union nor any other law prior thereto, did extend the establishment to the plantations; and if the society had not been of the same opinion, they would hardly have printed and dispersed his sermon. Neither did the civil rulers of the nation, who may justly be supposed acquainted with its