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CHAPTER II.

ON THE ECCLESIASTICAL LAW APPLICABLE TO THE COLONIES.

(1.) OPINION of the Attorney General, SIR EDWARD NORTHEY,

as to Roman Catholic Priests in the Colonies.

1705.

To the Right Honourable the Lords Commissioners for Trade and Plantations.

MAY IT PLEASE YOUR LORDSHIPS,-In obedience to your Lordships' commands, signified to me by Mr. Popple, Jun., your Secretary, I have considered of the annexed extract of a letter from Colonel Seymour, Governor of Maryland, relating to the Jesuits and papists there; and the extract also sent me, of the grant of the province of Maryland to Lord Baltimore, relating to the ecclesiastical power; and the questions proposed thereon, whether the laws of England against Romish priests are in force in the plantations, and whether her Majesty may not direct Jesuits, or Romish priests, to be turned out of Maryland ?

And as to the said clause in the grant of the province of Maryland to Lord Baltimore, relating to the ecclesiastical power, I am of opinion the same doth not give him any power to do anything contrary to the ecclesiastical laws of England, but he hath only the advowsons of, and power to erect and consecrate churches, and such power as the Bishop of Durham had as Earl Palatine in his County Palatine, who was subject to the laws of England; and the consecrations of chapels ought to be, as in England, by orthodox ministers only.

As to the question, whether the laws of England against Romish priests are in force in the plantations, by the statute 27mo. of Elizabeth, cap. 2, every Jesuit, seminary priest, or other such priest, deacon, or religious or ecclesiastical person, born within this realm or any other her Majesty's dominions, made, ordained, or

professed, by any authority or jurisdiction, derived, challenged, or pretended, from the see of Rome, who shall come into, or be, or remain in any part of this realm or any other of her Majesty's dominions, is guilty of high treason. It is plain that law extended to all the dominions the Queen had when it was made; but some doubt hath been made, whether it extendeth to dominions acquired after, as the plantations have been.

By the statute 11mo. William, for preventing the further growth of Popery, it is provided that, if any popish bishop, priest, or Jesuit whatsoever, shall say mass, or exercise any other part of the office or function of a popish bishop or priest, within this realm, or the dominions thereunto belonging, such person, being thereof lawfully convicted, shall be adjudged to perpetual imprisonment, in such place within this kingdom as her Majesty, by the advice of her Privy Council, shall appoint. I am of opinion this law extends to the plantations, they being dominions belonging to the realm of England, and extends to all priests, foreigners as well as natives.

As to the question, whether her Majesty may not direct Jesuits or Romish priests to be turned out of Maryland, I am of opinion, if the Jesuits or priests be aliens, not made denizens or naturalized, her Majesty may by law compel them to depart Maryland; if they be her Majesty's natural-born subjects, they cannot be banished from her Majesty's dominions, but may be proceeded against on the last before-mentioned law.

October 18, 1705.

EDW. NORTHEY.

(2.) JOINT OPINION of the Attorney and Solicitor General, SIR PHILIP YORKE and SIR CLEMENT WEARG, on Convocations or Synods of the Clergy or Dissenting Ministers in New England. 1725.

To their Excellencies the Lords Justices.

MAY IT PLEASE YOUR EXCELLENCIES,-In humble obedience to your Excellencies' commands, signified to us by Mr. Delafaye, we have considered the several matters referred to us by letter of the 24th inst., transmitting to us the enclosed copies of some letters which his Grace the Duke of Newcastle had received from the Lord Bishop of London, concerning an address from the

General Convention of the Independent Ministers in New England, to the Lieutenant-Governor, Council, and House of Burgesses there, desiring them to call the several churches in that province, to meet, by their pastors and messengers, in a synod, to which the said Council and House of Representatives have given their consent, and directing us to inquire into this matter, and report our opinions upon several questions proposed in the said letter.

And we humbly certify your Excellencies, that, as to the several matters of fact contained in the said letters and papers therewith transmitted, we have been obliged to take the same as they are therein stated, having at present no opportunity of obtaining strict regular proof; and, therefore, such parts of this report as arise out of those facts, are grounded upon a supposition that the relations contained in those letters and papers are true.

The address of the General Convention of Ministers is mentioned to be in these words, to wit:

"To the very Honourable William Dummer, Esq., LieutenantGovernor and Commander-in-Chief, and to the Honourable the Councillors, to the Honourable the Representatives, in the great and General Court of his Majesty's province of the Massachusetts Bay, assembled, and now sitting, a memorial and an address humbly presented.

"At a General Convention of Ministers from several parts of the province, at Boston, 27th May, 1725:

"Considering the great and visible decay of piety in the country, and the growth of many miscarriages, which we may fear has provoked the glorious Lord, in a series of various judgments, wonderfully to distress us; considering also, the laudable example of our predecessors, to recover and establish the faith and order of the Gospel in the churches, and provide against what immoralities might threaten to impair them, in the way of general synods convened for that purpose; and considering that forty-five years have now rolled away since these churches have now seen any such convention ;—it is humbly desired that the honoured General Court would express their concern for the great interests of religion in the country, by calling the several churches in the province to meet, by their pastors and messengers, in a synod, and from thence offer their advice upon that weighty case, which the circumstances

of the day do loudly call to be considered: What are the miscarriages whereof we have reason to think the judgments of Heaven upon us call us to be more generally sensible, and what may be the most evangelical and effectual expedients to put a stop to those or the like miscarriages?' This proposal we humbly make, in hopes that if it be prosecuted, it may be followed by many desirable consequences, worthy the study of those whom God has made, and we are so happy to enjoy, as the nursing fathers of our churches."

Upon this address it is represented, that on the 3rd of June last, the Council voted, "That the synod and assembly proposed in this memorial will be agreeable to this Board, and the reverend ministers are desired to take their own time for the said assembly; and it is earnestly wished the issue thereof may be a happy reformation in all the articles of a Christian life, among his Majesty's good subjects of this province."

That this resolution was sent down to the House of Representatives for concurrence, and in that House, June 11, 1715, it was read and referred to the next session, for further consideration.

That this resolution of the House of Representatives was sent up to the Council for their concurrence, and in Council, June 19, 1725, read and concurred, and the Lieutenant-Governor subscribed his consent thereto.

It appears, that against this application of the convention of ministers, for a synod, a memorial was presented by Timothy Cutler and Samuel Myles, ministers of the Established Church of England, to the Lieutenant-Governor, Council, and House of Representatives, in General Court assembled, a copy of which is hereunto annexed, and contains several reasons against the address of the Convention of Ministers.

Upon this memorial, the Council, on the 22nd of June, 1725, resolved, that it contained an indecent reflection on the proceedings of that Board, with several groundless insinuations, and voted that it should be dismissed, to which resolution the House of Representatives agreed.

As to the questions contained in Mr. Delafaye's letter, we beg leave to submit our thoughts upon them to your Excellencies' consideration, separately and distinctly.

The first question is: whether such pastors and messengers have any power to meet in a synod without the King's license?

In order to form an opinion upon this point, we have perused the charter, which is the fundamental constitution of this province, and have looked into their printed Acts of Assembly, as far as the year 1722.

The charter bears date 7° Octobris, 3° Will. et Mariæ, A.D. 1691, and recites two former charters, one granted 3 Nov. 18 Jac. 1, and the other 4 Mar. 4 Car. 1, which was vacated, by judgment upon a scire facias, in Trinity term, 1684. In this charter, nothing is contained, tending to the establishment of any kind of church government or ecclesiastical authority in this colony, but there is the following clause: "For the greater ease and encouragement of our loving subjects inhabiting our said province or territory of Massachusetts Bay, and of such as shall come to inhabit there, we do, by these presents, for us, our heirs and successors, grant, establish and ordain, that for ever hereafter there shall be a liberty of conscience allowed in the worship of God to all Christians (except papists) inhabiting, or which shall inhabit or be resident within, our said province or territory."

By the power given by this charter to the General Court or Assembly to make laws and impose taxes, they are authorised to dispose of matters and things, whereby the subjects, inhabitants of the said province, may be religiously, peaceably, and civilly governed, protected and defended, so as their good life and orderly conversation may bring the Indian natives of the country to the knowledge and obedience of the only true God and Saviour of mankind, and the Christian faith, which King Charles I., in his said letters patent, declared was his royal intention, and the adventurers' free profession to be the principal end of the said plantation; and for the better maintaining liberty of conscience thereby granted to all persons, at any time being and residing within the said province or territory.

In the Acts of Assembly, we find nothing relating to ecclesiastical authority; but there are some Acts directing that every town shall be provided of one or more able, learned and orthodox minister or ministers, without defining what they intend by that description, and there are other Acts, appointing methods for maintaining them.