USA > South Carolina > The history of South Carolina under the proprietary government, 1670-1719, V.2 > Part 5
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But still more singular is it that Mr. Boone and his co- petitioners - dissenters all - should have assumed the defence of the church as well as the carriage of their own burdens of discontent, and have undertaken to main- tain the ecclesiastical jurisdiction of the Bishop of London over the colonies in America, and to resent the incorpora- tion of the Lay Board and its powers. This last, indeed, is the most remarkable of all the strange features of the paper, considering its source. Mr. Boone and his people
1 Ante, Chap. III.
2 F
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in Carolina were Congregationalists, or Independents, the very essence of whose doctrine was the repudiation " of the authority of pope, prelate. presbytery, prince, or Par- liament," and antagonism to the Episcopal authority of the Church of England. Surely, it might have been sup- posed that such religionists would have hailed the asser- tion of the authority of the laity of the Church of England in Carolina to free themselves from unworthy or unfit clergymen as a vindication to that extent of their own church polity, - from whence, indeed, it was doubtless derived. But, on the contrary, we find this document resenting the interference of the laity with Episcopal authority, and deelaring that the inhabitants of the prov- ince, including, of course, the Independents themselves. take this board "to be an high ecclesiastical commission- court destructive to the very being and essence of the church of England, and to be held in the utmost detesta- tion and abhorrence by every man, that is not an enemy to our constitution in Church and State."
The insincerity of the memorialists is obvious. It was quite on a par with that of the churchmen, who, while prescribing that no dissenter should vote who did not submit himself to conformity with the church. evidenced by communing at its altars, provided a saving clause, exempting themselves from, a compliance with their own requirements. In the one case, as in the other, religion was made the stalking-horse of political power.
But the Whig House of Lords, to which Mr. Boone now appealed, self-righteously indignant at the attempt of the churchmen in Carolina to follow the example of the Tories in England to weaken their influence by excluding nonconformists from the voting power. over- looked the incongruity of the petitioners and their peti- tion, and hastened at the close of the session, which the
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establishment of the union with Scotland now rendered necessary, to espouse their cause. On the 12th of March, 1706, their Lordships voted an address to the Queen upon the subject. In this address it is declared : 1 ___
First, that it was the opinion of the House that the act of the Assembly of Carolina, for the establishment of religious worship. "so far forth as the same relates to the establishment of a Commission for the displacing of Rec- tors or Ministers of the Churches there, is not warranted by the Charter granted to the Proprietors of that Colony, as being not consonant to Reason, repugnant to the Laws of this Realm. and destructive to the constitution of the Church of England."
Secondly, that it was the opinion of the House that the act requiring all persons chosen members of the Com- mons House of Assembly to conform to the religious wor- ship of the province, and to receive the sacrament of the Lord's Supper according to the rites of the Church of England "is founded upon falsity in matter of fact, is repugnant to the Laws of England. contrary to the Charter granted by the Proprietors of that Colony, is an encourage- ment to Atheism and Irreligion, destructive to trade, and tends to the depopulating and ruining of the Province."
Whereupon their Lordships prayed her Majesty to de- liver the province from the arbitrary oppressions under which it now lies; and to order the author to be prose- cuted according to law. They also represented to her Majesty how much the powers given by the Crown have been abused by some of her subjects : but justice required them, they said, to inform her Majesty that some of the Proprietors had refused to join in the ratification of these acts. They also informed her Majesty that other great injustices and oppressions were complained of which it was
1 Colonial Records of Vo. Ca., vol. I. 631 ; Dalcho's Ch. Hist., 66.
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not possible for the House. so near the conclusion of the session, to find time to examine, and therefore presumed to lay the petition itself before her; and could not doubt but that her Majesty, who had shown so great a concern and tenderness for all her subjects, would extend her compassion to her distressed people who had the misfort- une to be at so great a distance from her Royal person, and not so immediately under her gentle administration.
The Queen thanked the House for laying these matters so plainly before her, expressed herself as very sensible of the great consequence the plantations were to England, and promised that she would do all in her power to relieve her subjects in Carolina and protect their rights.
On the 3d of April Sir Charles Hedges, one of the Secretaries of State, a favorite of the Queen, whom the Duchess of Marlborough was now pushing out of the way for her son-in-law Sunderland, wrote to the Board of Trade referring the address of the Lords to that body, and desiring its opinion as to the method proper to be taken for the relief of her Majesty's subjects. The board, which, as we have seen, was ever on the alert to find some cause for the forfeitures of colonial charters, readily undertook the business and referred the papers to the two law officers of the Crown, the Attorney General, Sir Edward Northey, and the Solicitor General, Sir Simon Harcourt, for their opinion.1 These law officers, on the 17th of May, gave it as their opinion that the acts in question, not being consonant to reason, and being repugnant to the laws of England, were not warranted by the char-
1 Lord Campbell, writing of the changes in the cabinet upon the result of the election of 1705, says: "Northey the Attorney General was con- sidered quite unequal to the post even if there had been no objection to his politics. . . . Harcourt the Solicitor General was a man of great tal- ents and of high honor." - Lives of the Lord Chancellors, vol. V, 166.
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ter and were made without sufficient authority from the Crown, and therefore did not bind the inhabitants of the colony; that her Majesty might therefore lawfully declare those laws null and void and require the Proprietors and Assembly of the province to abrogate them. They were further of the opinion that the making of such a law was an abuse of the power granted the Proprietors and effected a forfeiture. They were of opinion that her Majesty might proceed by scire facias in chancery on the pat- ents, or by quo warranto in the Queen's Bench, "if," they were careful to add, "the laws were approved and confirmed by the present proprietors which doth not fully appear to have been so by the said address." This, as we shall see, proved to be an embarrassing point. On the 10th of June her Majesty, in council, directed Mr. Attorney and Mr. Solicitor General to inform themselves more fully upon what was necessary for the effectual proceeding against the charter by quo warranto. On the 13th an order of council was made directing the Lords Proprietors to de- clare the objectionable acts null and void.
So far all had gone well with the petitioners, and the Board of Trade had reason to hope that the charters against which they had so long and so earnestly been contending would now be annulled. But just here two curious obstacles appeared to save the Proprietors' rights. The first was intimated by the law officers in the closing sentence of their opinion. It so happened that the acts had been nominally approved by but four of the Proprie- tors, of whom one, indeed, was a minor. These were Tories. Of the other Proprietors Archdale had protested against the laws. Shaftesbury was in ill health and in retirement, and neither his brother Maurice Ashley, who represented him, nor Blake, who was a minor, had had any part in the enactment of these measures. Were these innocent parties,
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some of whom were Whigs, to be punished for the con- duct of the Tory Lords Granville and Craven and Sir John Colleton? Were the minors Carteret and Blake and the invalid Shaftesbury to suffer for the conduct of others in which they had no part? But not only so: as the law officers, under the orders of her Majesty in council, looked into the matter more fully, they began to doubt whether they could deal with the only parties who were responsi- ble for the objectionable measures ; for these were peers of the realm, and though the Whig House of Lords had in the rush of business at the close of a session let the address to her Majesty pass, it might possibly not be safe to take them too seriously at their word, and to do a thing which might affect the privileges of their order.
Under the order of the 10th of June, the Attorney and Solicitor Generals reported to a Council held on the 26th that, though they had not sufficient material to carry on the prosecution to an end, they had sufficient to exhibit informations, and were preparing the same: but at the same time they suggested to the Council whether the fil- ing such informations against a peer in Parliament might not be thought a breach of the privileges of the peerage. This view struck the Council, and her Majesty having taken it into consideration, the Council quickly changed their course and came to the conclusion that the House of Peers were the best judges of their own privileges ; upon which her Majesty did not think fit to give any further directions, and the whole matter was dropped.1
Upon the passage of the Church act establishing the five new parishes, Governor Johnson and his Council had empowered Mr. Thomas, who was returning to England on private affairs, "to make choice of five such persons as he should think fit. learned. pious, and laborious minis- 1 Colonial Records of No. Ca., vol. 1, 610, 64 ; Dalcho's Ch. Ilist. 60.
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ters of the church to officiate in the vacant parishes." In doing this Mr. Thomas consulted the Society for the Propagation of the Gospel. and submitted what the so- ciety pronounced to be "a very full and satisfactory ac- count of the state of the church in South Carolina." But he drew attention to the objectionable clause of the act establishing the church which placed in the hands of lay commissioners the power of removing the clergy. The society referred the matter to the Archbishop of Canterbury and the Bishop of London, and determined to "put a stop to the sending ministers . . . into those parts till . .. fully satisfied that the . . . clauses are or shall be rescinded, and that the matter put into an ecclesiastical method." When, however, afterward Governor Johnson and his Council explained that the provision had been "made to get rid of the incendiaries, and pest of the church, Mr. Marston." and that had the society known the facts of the case, it would not have blamed them "for taking that or any other way to get rid of him." and that Mr. Boone, who in this matter was apparently so zealously championing the cause of the church, was "a most rigid dissenter." who. while pretending to defend the rights of the clergy, was really endeavoring to defeat the act. "because it established the church . . . and settled a maintenance on the ministers," they were evidently satis- fied ; for they sent back with Mr. Thomas, in 1705, Mr. Thomas Hasell in the same year, and Mr. Francis Le Jau in 1706, before the act was repealed.1
Of these measures, which caused so much contention and discussion both at home and in England. the first, that requiring conformity with the Church of England on the part of the electors of the Commons, was a measure originating in the polities of the mother country, but readily
1 Digest Soc. Prop. Gospel Records, 13, 14, 849 ; Dalcho's Ch. Hist., 69.
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adopted by the churchmen in Carolina, to wrest and secure the control of the province from the dissenters. During the last fifteen years there is little doubt but that the dissenters had been a majority in the colony, and were the richest and soberest amongst them. From the arrival of Blake, Morton, Axtell. and their followers they had governed the colony; and it was with chagrin that they saw the new arrivals from England and the West Indies joining with the Huguenots to supersede their rule. Hence the bitter oppo- sition to these people, whom, though like themselves exiles for religion's sake, they were contumeliously classing with negroes and the lowest of the whites. There is no evi- dence that the dissenters now constituted two-thirds of the population as asserted by Mr. Marston.1 On the contrary, as we have seen. those who conformed to the Church of England constituted very nearly one-half of the population ; and it is not to be assumed that all the non-conformists were united, differing as they did amongst each other. The very vehemence of their opposition to the French Protestants is a persuasive argument that they recognized that the pending union between the churchmen and Huguenots would constitute a governing majority of the colony.
The attempt of the churchmen to secure their supremacy by the exclusion of the dissenters, under the test of con- formity to the church, was unwise, impolitic, and improper. But in the end it proved to be a matter of political ethics. not of constitutional right. The weak opinion of the Attorney General and Solicitor General clearly exhibits this. They rest their objection to the measure upon the clause of the charter requiring the laws of the province to be as near as may be to those of England, -an elastic provision, capable of indefinite contraction or expansion
1 British Empire in _Im., vol. I, 486.
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as the purposes of party might require. They find that the provision of the law of Carolina. accomplishing the purpose in this province. -- the same that the Commons had again and again attempted at home, to be so contrary to the laws of England as to be in violation of the provision of the charter. And yet, at this very time, Chief Justice Holt. while hold- ing that slavery was so abhorrent to the laws of England that every slave was made free upon touching her soil. was upholding the slave trade in the interests of the mer- chants of London, and declaring negro slaves merchandise under the navigation acts. and salable and recoverable property in the colonies.1 If Attorney General Northey and Solicitor General Harcourt were right, that the adop- tion by a colony of a measure which had been over- whelmingly and repeatedly approved by the Commons in Parliament was such a departure from the law of Eng- land as to be a violation of its charter. what was to be said of the courts of England, then and afterwards, upholding. in regard to slavery, one law for the colonies and another for the, mother country? It is not improbable that the law officers of the Crown began to perceive some of these difficulties. and were glad to abandon the controversy under the plea of the privilege of the peers.
The other measure was more of a local one. - one fully justified by the condition of the church in the colonies ; nor was it, as declared by the address of the Lords in extravagant language, in violation of the constitution of the Church of England. Deprivation and degradation are two very different matters in all ecclesiastical laws. The latter can only be imposed by an ecclesiastical court. The former must depend upon the law of the benefice or " liv- ing," as a matter of property. The lay commission had no power to suspend, deprive. or depose a clergyman from 1 Sukeld's Reports, 666; Bancroft, vol. II, 279 (ed. 1883).
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his sacred function ; but, as representing the body which furnished the means of living, it was authorized to inquire into cases of unworthiness of the support it provided. In the absence of a bishop or any other ecclesiastical author- ity, the act provided a board to hear and decide dif- ferences between congregations and their rectors. In England, proceedings of deprivation were generally had in the ecclesiastical courts, but these were always subject to the courts of common law which regulated them, and sentences were pronounced by the bishop with the assist- ance of his chancellor and dean, if their presence might be conveniently had. The general rule no doubt was that there could be no deprivation without precedent ecclesi- astical sentence. But the rule was by no means universal. There were divers statutory offences, some of nonfea- sance or neglect as well as others for malfeasance, and crimes such as failure to read the liturgy and articles and to make declarations against popery, improper absence, simony, etc .. which needed no ecclesiastical sentence. but which ipso facto worked deprivation and loss of benefice.1
The Bishop of London's jurisdiction in the colonies was at this time questioned, as we have seen ; and justly so, as it was ultimately held by the Privy Council in Eng- land.2 In Jamaica, where it was barred by statute, the Governor, as head of the provincial church, as the repre- sentative of the King of England, not only inducted clergymen into their rectories. but was likewise vested with the power of suspending clergymen for lewd and disorderly lives upon application of ten parishioners.3 The
1 Burns's Ecclesiastical Lar. vol. II, 126; Dwyer's Reports, 275; Jacob's Lan Dic. Title. Deprivation.
2 .V. Y. Col. Doc., vol. VII, 363.
3 Hist. West Indies ( Bryan Edwards), vol. I, 208, 348.
In Virginia the Governors Ettingham, Nicholson, and Spottswood
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Carolina act gave this power to the lay commissions in- stead of to the Governor. Was it not proper, there being no bishop in Carolina, that where the General Assembly was taxing this people to support and maintain the clergy, providing them with parsonages, glebe lands, and negroes to work the glebe lands, all at the expense of the public, some court should be provided to hear complaints against rectors or ministers of the several parishes, and to re- move or translate them for good cause? The Governor in Jamaica could remove upon the application of ten parishioners ; under the Carolina act the application must be made by nine under the sanction of the vestry, an additional safeguard to the clergy. Was Mr. Marston to be allowed to meddle with this affair of the government, assail its members from the pulpit, comparing them to Korah and his rebellious brethren, and the people have no power to remove him? Would not any vestry to-day sever the connection between their rector and their church for causes mentioned in the act? Do they not do so habit- ually ? The act in question, in fact, provided a protec- tion to the clergyman, in that it would not allow him to be displaced, as he is practically to-day by the vestry, whenever differences arise between the congregation and himself. Dr. Dalcho, while maintaining that Mr. Marston was removed by a power having no canonical jurisdiction in ecclesiastical affairs, admits that " he owed his removal to his imprudent and litigious disposition."
claimed to be the representatives of the King in Church and State, and patrons of all the parishes, also to be the representatives of the Bishop of London, having the disposal of the ministers and the exercise of discipline over the clergy, thus making the office of the commissary a nullity. Old Churches and Families in Virginia . Bishop Meade), vol. I. 150.
In Maryland the right of indnetion and presentation were both cen- tred in the Governor alone. The commissary could only remonstrate. Anderson's History of the Colonial Church, vol. III, 178.
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But if the Carolina act was so obnoxious to the consti- tution of the Church of England as to be ground for a forfeiture of its charter, why was not that of Jamaica to be forfeited as well? The opinion of the law officer of the Crown could not have been sustained before the courts in either of the cases. It was well for the gov- ernment that so convenient an excuse for dropping the case was so easily found.
The Queen had ordered the Proprietors to have these measures repealed. Her Majesty's power to do so might well have been questioned. But while the Proprietors, divided among themselves into two as distinct parties as the colonists themselves, had now escaped a threatened forfeiture of their charter, they recognized the danger of the continued hostile attitude of the Board of Trade and were well content to come out of the difficulty without further controversy. Instructions were sent for the repeal of the measures in question. And indeed it was time that this should have been done, for the Assembly in Carolina had already given way in response to the defeat of the Tories in England.
The act requiring conformity to the church as a quali- fication of election had been passed, it will be recollected, by a majority of only one in a House from which several members were absent. In a full House some time after a bill had been carried for its repeal, but was lost in the Upper House, and Governor Johnson had. it is said, "in great indignation dissolved the Commons House by the name of the Unsteady Assembly."1 In the election for the new Assembly Oldmixon states that Craven and Berkeley counties were so straitened by the qualifying act that they had not twenty men to represent them unless they would choose a dissenter or one unfit for the position.
1 British Empire in Am., vol. I, 186.
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Several persons were admitted as representatives from Colleton County in the place of those who refused to qualify, under a provision of the act, which upon the whole was perhaps its worst feature. providing that in such cases the candidate having the next greatest number of votes should be entitled to the seat. John Ash. the son of the dissenters' first agent to England, qualified himself by taking the oaths and signing their declaration. but was not apparently otherwise a complaisant member. He was soon called upon to answer for words spoken in derogation of the House.1
Upon the opening of the General Assembly on the 6th of March, 1706, Governor Johnson sent in a message. As to the clause in the Church act relating to the twenty commissioners, he said, the members were aware, by the printed votes of the House of Lords and their address to her Majesty, what offence it had given. In order. therefore, to give full satisfaction to the Lords, the bishops, and the Society for Propagating the Gospel, who were offended by it, and in order to settle the church in the province by an act that might not be disturbed in England. he proposed to repeal all the several acts upon the subject and then to pass one general act establish- ing the church without the clause giving a power to re- move the clergy. All knew, he said, that the passing of that clause was to get rid of that pest of the country, Mr. Marston. who had been a common incendiary in the prov- ince, and had been the cause of differences and animosities between himself and the parishioners of St. Philip's, and that, if suffered to remain, the people generally would for- sake the church. He recommended, therefore, that there should be a clause in the new aet disabling Mr. Marston from being minister in Charles Town. He thought that
1 MISS. Journals.
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one church was not sufficient for Colleton County and recommended the establishment of another parish within its limits. As the main end of the act against dissenters, he said, was to enable the Assembly to establish the Church of England, so when the act he proposed was passed he recommended the repeal of that against the dissenters. "I do now propose to you," he concluded, " that upon the passing of the act for the security of the church as before proposed, I shall be ready to join you in the repealing of the act against the dissenters sitting in the Assembly." 1
The Assembly did not act immediately upon the mes- sage of the Governor, but took up other business, and passed another measure. which the dissenters declared to be merely for the perpetuation of the church party's power, and not because of the reasons assigned for its enactment. This act provided for the continuance of the present Assembly for the term of two years after its ratification, during the life and continuance in office of the present Governor, and that it should not be dissolved by any power or person whatsoever within that time, except by the Gov- ernor and Council that then were. It was to continue likewise for eighteen months after the end of the adminis- tration of the present Governor by death or removal. The reason assigned for its passage was the danger of an- other invasion by the French and Spaniards, which might render an election inconvenient and inexpedient, or leave the province without a duly organized House ; and also - which, indeed, was no doubt its real motive - because the preservation of the Church of England so happily begun might be endangered. if not wholly subverted and over- thrown, upon the election of another House. This attempt to prevent the exercise of the popular will was as futile as it was unwise: and, as we shall see, was disre-
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