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Vol. II. AUGUST, 1838. No. I.
ANNALS OF DELAWARE.
Upon the succession of James the second to the crown of England, as he was a professed papist, great fears were entertained, that the persecuting spirit of queen Mary's reign, would be revived, to the ruin of the Protestant church, and the establishment of popish power in the nation. Then, the idea of universal toleration had few advocates, except among the Quakers. A constant struggle for power, between the Protestant and Roman Catholic persuasions existed; in which, no matter what party prevailed lor the time, the result was the same; that, of persecution for opinions sake; laws of disqualification and numerous acts of oppression against the opposite faction, often producing civil war of the most cruel and sanguinary character; bearing in their train more calamity and desolation, than any of their conflicts with foreign nations, and making, even the pure and holy religion they professed, the cause of numerous crimes of the darkest cast. Even at this day, when government is so much better understood, and the rights of man so much more respected, we have still to deplore the same persecuting spirit among the people of our mother country, resulting it is true, neither in war or capital punishment, but productive of great injustice, in compelling one portion of the people to contribute to the support of a proud, luxurious and aristocratical clergy, whoso tenets they deny, and to whose church they do not adhere. Wherever a national church is established by law, the liberty of conscience is necessarily abridged and thereby a crime against the rights of man perpetrated, and that too in the name of the meek and lowly and truly liberal founder of our faith, who taught that the heart of man should be the temple of the Mos,t High, and that a conscience void of offence towards God and man, was the only passport to divine favor. Who by a life of patient suffering and voluntary poverty, left a valuable lesson to the preachers of his gospel in all after times; but which by the inflated, and in many instances, irreligious clergy of England, is despised and disregarded. To this spirit, thanks to our great and good progenitors, of whom William Penn was-among the chief, we have ever been strangers. Driven by persecution from their homes to this new world, they brought with
them an indomitable hatred to oppression of every kind; and hence from the beginning of the settlement of our country, we may be said to have lived under an enlightened and free government, possessed of the right of suffrage in the choice of rulers; and of a code of laws made to operate equally upon all, without reference to birth, fortune or opinions.
William Penn appears to have had great influence with James the second, and although his ostensible object in its exercise was for the relief of the suffering members of his own society, he had in reality a higher aim, and greater ultimate object in view—that of universal toleration. After his return to England, in 1680, he employed himself with assiduity, by writing and personal applications at court, to restore the lost rights of mankind, as it regarded freedom of opinion. His efforts produced, early in the year 1086, the king's proclamation for a general pardon of offenders against the established religion: in consequence of which, thirteen hundred Quakers, most of whom had been imprisoned for years for their religion, were set at liberty: and on the 4th April following, in the year 1687, came forth the king's declaration for liberty of conscience, suspending the execution of all penal laws in matters ecclesiastical.
This act was censured by the statesmen of the time, as an usurpation of legislative power, by the executive; and although the liberal minded owned that it was founded in justice, they could but condemn it as an usurpation of the powers of a co-ordinate branch of the government. Sir James Mackintosh, in his history of the revolution of 1688, says:
"At an early stage of the proceedings against the universities, the king, not content with releasing individuals from obedience to the law by dispensations in particular cases, resolved on altogether suspending the operation of penal laws relating to religion by one general measure. He accordingly issued, on the 4th of April, 1687, 'A Declaration for Liberty of Conscience;' which, after the statement of those principles of equity and policy, on which religious liberty is founded, proceeds to make provisions in their own nature so wise and just, that they want nothing but lawful authority and pure intention to render them worthy of admiration. It suspends the execution of all penal laws for nonconformity, and of all laws which require certain acts of conformity, as qualifications for civil or military office: it gives leave to all men to meet and serve God after their manner, publicly and privately, and denounces the royal displeasure and the vengeance of the land, against all who should disturb any religious worship; and, finally, 'in order that his loving subjects may be discharged from all penalties, forfeitures, and disabilities, which they may have incurred, grants them a free pardon for all crimes by them committed against the said penal laws.' This declaration, founded on the supposed power of suspending laws, was, in several respects, of more extensive operation than the exercise of the power to dispense with them. The laws of disqualification only become penal when the nonconformist was a candidate for office; and necessarily implying immorality in the person disqualified, might, according to the doctrine then received, be the proper object of a dispensation. But some acts of nonconformity, which might be committed by all men, and which did not of necessity, involve a conscientious dissent, were regarded as in themselves immoral, and to them it was acknowledged that the dispensing power did not extend. Dispensations, however multiplied, are presumed to be grounded on the special circumstances of each case. But every exercise of the power of indefinitely suspending a whole class of laws which must be grounded on general reasons of policy, without any considerations of the circumstances of particular individuals, is evidently a more undisguised assumption of legislative authority. There were practical differences of considerable importance. No dispensation could prevent a legal proceeding from being commenced and carried on as far as the point when it was regular to appeal to the dispensation as a defence. But the declaration which suspended the laws, stopped the prosecutor on the threshold; and in the case of disqualification, it seemed to preclude the necessity of all subsequent dispensations to individuals. The dispensing power might remove disabilities, andprotect from punishment; but the exemption from expense, and the security against vexation, were completed only by this exercise of the suspending power.
Acts of a similar nature had been twice attempted by Charles II. The first was in the year of his restoration; in which, after many concessions to dissenters, which might be considered as provisional, and only to be binding till the negotiation for a general union in religion should be closed, he adds: 'We hereby renew what we promised in our declaration from Breda, that no man should be disquieted for difference of opinion in matters of religion, which do not disturb the peace of the kingdom.' On the faith of that promise, the English nonconformists had concurred in the restoration; yet the Convention Parliament itself, in which the Presbyterians were powerful, if not predominant, refused, though by a small majority, to pass a bill to render this tolerant declaration effectual. But the second parliament, elected under the prevalence of a different spirit, broke the public faith by the Act of Uniformity, which prohibited all public worship and religious instruction, except such as were conformable to the established church. The zeal of that assembly had, indeed, at its opening, been stimulated by Clarendon, the deepest stain on whose administration is the renewal of intolerance. Charles, whether most actuated by love of quiet, or by indifference to religion, or by a desire to open the gates to dissenters, that Catholics might enter, made an attempt to preserve the public faith which he had himself pledged by the exercise of ^is dispensing power.'"
This declaration for liberty of conscience^ was one of th« main