This business appears in two points of view. 1. Whether it is a matter of grievance. 2. Whether it is within our province to redress it with propriety and prudence. Whether it comes properly before us on a petition upon matter of grievance, I would not inquire too curiously. I know, technically speaking, that nothing agreeable to law can be considered as a grievance. But an over-attention to the rules of any act does sometimes defeat the ends of it, and I think it does so in this parliamentary act, as much at least as in any other. I know many gentlemen think, that the very essence of liberty consists in being governed according to law; as if grievances had nothing real and intrinsic; but I cannot be of that opinion. Grievances may subsist by law. Nay, I do not know whether any grievance can be considered as intolerable until it is established and sanctified by law. If the act of toleration were not perfect, if there were a complaint of it, I would gladly consent to amend it. But when I heard a complaint of a pressure on religious liberty, to my astonishment, I find that there was no complaint whatsoever of the insufficiency of the act of King William, nor any attempt to make it more sufficient. The matter therefore does not concern toleration, but establishment; and it is not the rights of private conscience that are in question, but the propriety of the terms, which are proposed by law as a title to public emoluments; so that the complaint is not, that there is not toleration of diversity in opinion, but that diversity in opinion is not rewarded by bishoprics, rectories, and collegiate stalls. When gentlemen complain of the subscription as matter of grievance, the complaint arises from confounding private judgment, whose rights are anterior to law, and the qualifications, which the law creates for its own magistracies, whether civil or religious. To take away from men their lives, their liberty, or their property, those things, for the protection of which society was introduced, is great hardship and intolerable tyranny; but to annex any condition you please to benefits, artificially created, is the most just, natural, and proper thing in the world. When e novo you form an arbitrary benefit, an advantage, pre-eminence, or emolument, not by nature, but institution, you order and modify it with all the power of a creator over his creature. Such benefits of institution are royalty, nobility, priesthood; all of which you may limit to birth; you might prescribe even shape and stature. The Jewish priesthood was hereditary. Founders' kinsmen have a preference in the election of Fellows in many colleges of our universities; the qualifications at All Souls are, that they should be—optime nati, bene vestiti, mediocriter docti.
By contending for liberty in the candidate for orders, you take away the liberty of the elector, which is the people; that is, the state. If they can choose, they may assign a reason for their choice; if they can assign a reason, they may do it in writing, and prescribe it as a condition; they may transfer their authority to their representatives, and enable them to exercise the same. In all human institutions a great part, almost all regulations, are made from the mere necessity of the case, let the theoretical merits of the question be what they will. For nothing happened at the reformation, but what will happen in all such revolutions. When tyranny is extreme, and abuses of government intolerable, men resort to the rights of nature to shake it off. When they have done so, the very same principle of necessity of human affairs, to establish some other authority, which shall preserve the order of this new institution, must be obeyed, until they grow intolerable; and you shall not be suffered to plead original liberty against such an institution. See Holland, Switzerland.
If you will have religion publicly practised and publicly taught, you must have a power to say what that religion will be which you will protect and encourage; and to distinguish it by such marks and characteristics, as you in your wisdom shall think fit. As I said before, your determination may be unwise in this as in other matters, but it cannot be unjust, hard, or oppressive, or contrary to the liberty of any man, or in the least degree exceeding your province.
It is therefore as a grievance fairly none at all, nothing but what is community.
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