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Governor be received as evidence at the trial. Mr. Makemie objected—that there was time to get the original; or the Attorney might produce a certified copy. But finding that the trial would be put off another term unless the Attorney's copy were admitted, it was agreed that it should be received as if the original were present: Mr. Makemie observing—"he could not but wonder of what service these instructions, which were no law, could be to Mr. Attorney, seeing the presentment run upon statutes and act of parliament, and they expected to have a trial before a court who were judges of law and not of private instructions."

On Friday June 6th, 1707 the Petit jury was called: the defendant said he was under great disadvantage, being a stranger and not knowing either names or faces of the persons summoned as a jury; that he knew he had not the privilege of peremptory challenge ;-but that he was informed that one of them—Mr. Elias Neace, in discourse with Mr. Anthony Young had prejudged the cause, by condemning him for preaching a sermon, and justifying Lord Cornbury's proceedings against him; and this being proved by the testimony of Mr. Young, Mr. Neace was set aside. Mr. Makemie farther said, “he was amazed to find that one so lately dragooned out of France for his religion, and delivered out of the galley, so soon prove a persecutor of the same religion for preaching a sermon in this city. The names of the jury are worthy of remembrance for the verdict they had the courage to render in face of the Governor and his attorney and the Justices of the Quarter Sessions : they were-John Shepherd, foreman, Thomas Ives, Joseph Wright, Thomas Wooden, Joseph Robinson, Bartholomew Larouex, Andrew Lauron, Humphrey Perkins, William Horswell, Thomas Carrell, Thomas Bayeux, and Charles Cromline.

Mr. Attorney produced a copy of the Queen's instructions signed by Lord Cornbury, which was allowed; these instructions were found to be the same as those given by King William to a former Governor; in the produced copy they were in two sentences; in the former instructions they were in two sentences but a great distance from each other; 1st. “ You are to permit a liberty of conscience to all persons except Papists, so that they be content with a quiet and peaceable enjoyment of it, not giving offence or scandal to the government. 2d. You are not to permit any minister coming from England to preach in your government, without a certificate, from the Right Reverend the Bishop of London; nor any other minister coming from any other part or place without first obtaining leave from the Governor."

The Attorney ordered four of Mr. Makemie's hearers to be called—Capt. John Theobalds, Mr. John Vanhorne, Mr. William Jackson, and Mr. Anthony Young; the defendant told the Court the swearing of these witnesses was unnecessary—“I own the matter of fact as to preaching, and more than these gentlemen could declare on oath; for I have done nothing therein, of which I am ashamed, or afraid; but will answer it not only before this bar, but before the tribunal of God's final judgement."

Attorney—“You own that you preached a sermon, and baptized a child at Mr. William Jackson's ?

Makemie"I did."
A. “How many hearers had you ?”

M. “I have other work to do, Mr. Attorney, than number
my auditory when I am about to preach to them.”
A. "Were there above five hearing you?”'
M. “ Yes, and five to that.”

A. “ Did you use the rites and ceremonies enjoined by, and prescribed in the Book of Common Prayer by the Church of England ?"

M. “No: I never did, nor ever will, till I am better satisfied in my conscience."

A, “Did you ask leave, or acquaint my Lord Cornbury with your preaching at York, when you dined with him at the fort ?"

M. “I did not know of my preaching at York when I dined with his Excellency; no, not for some days after. For when we came to York we had not the least intention or design of preaching there, but stopped at York purely to pay our respects to the Governor, which we did; but being afterwards called and invited to preach, as I was a minister of the gospel I durst not deny preaching, and I hope I never shall when it is wanting and desired.”

A. “Did you acquaint Lord Cornbury with the place of your preaching?"

M. “As soon as I determined to preach leave was asked but not by me; for it was the people's business and not mine, to provide a place for me to preach in. And I would have been admitted to preach in the Dutch Church, but they were afraid of offending Lord Cornbury. And Anthony Young went to the Governor to have his leave, or permission, for my preaching in the Dutch Church, though all this was done without so much as my knowledge. But my Lord opposing and denying it, I was under the necessity of preaching where I did, in a private house, though in a public manner with open doors.”

The Attorney then entered into a full statement of the Statutes of Henry Eighth establishing the supremacy--from thence he asserted the Queen's supremacy in Ecclesiastical affairs and over Ecclesiastical persons,—that this supremacy had been delegated to the Governor and expressed in her majesty's instructions. He produced the Statutes of Elizabeth and Charles 2d for Uniformity-and concluded by saying “the matter of fact is plainly confessed—and I have proved it to be repugnant to the Queen's instructions and sundry acts of Parliament, and doubt not the jury will find for the Queen."

Mr. James Reigniere pleaded for the defendant—That the indictment charged three separate crimes; first—that à pretended minister endeavouring to subvert the Queen's supremacy, did privately and unlawfully preach at Wm. Jackson's house, without license; Second, that he did unlawfully use other rites and ceremonies than are in the book of Common Prayer;—and thirdly—that he was not qualified by law to preach—and had held an unlawful assembly. He denied that the defendant had preached privately: and also that he had preached unlawfully, because he had violated no law forbidding the preaching to above five. He said the colony was governed ist by the Common law of England: 2d, By express Statutes mentioning the Plantations: 3d, By laws of the colony: and that he had never read that preaching without license to above five is a crime; and it is not alleged to be against a Statute for the Provinces; it must then, to be a crime, be against a law of the colony ;-let it be producedwhere there is no law there can be no transgression. He argued that the Statutes of Elizabeth and James and Charles were either aimed at Popish recusants or restricted to England, Wales and Berwick on the Tweed. Besides there is no Established church in New York; and liberty of conscience is allowed by law of the Province—“That no person or persons who profess faith in God by Jesus Christ his only Son, shall at any time be any way molested, for any difference of opinion or matter of religious concernment, who do not under that pretence disturb the civil peace of the province.”—“And all such persons may freely meet at convenient places within this province and there worship according to their respective persuasions.” From this act the papists were excepted.

As to the third charge—he argued that as the penal statutes did not extend hither, there was no need of Toleration.—That the penal laws extend equally to all plantations alike, and if the penal laws extended to the plantations, then the crown would not tolerate the governments of Boston, Rhode Island, Connecticut, and others, which in their church affairs differ so much from the Church of England. But these are allowed the Liberty they always used in the church. “As therefore it does not appear by the common law of England, or any law of the province that his preaching is unlawful;—but on the contrary

there is an express law of the province in favour of it, I humbly conceive that my client is not guilty of any offence against the law and I hope and expect the jury will acquit him.

Mr. William Nicholl next pleaded for defendant and said that as the attorney had brought history from the reign of Henry 8th he would bring some from the Bible, and would begin with the Acts of the Apostles, and show that preaching the gospel was never in itself, or by the common law, found to be a crime. The Apostle preached a new doctrine to the Athenians and was not condemned or imprisoned for it: it was no crime at Corinth; but when his preaching bore on the gains of the silversmiths at Ephesus, they made an uproar rushing into the theatre. It was no offence by the common law, but made so by the 5th of Richard 20—2d of Henry 4th—2d of Henry 5th ;-but all these Statutes were repealed by 1st of Edward 6th-and the acts of Elizabeth. The four acts against Conventicles are all local and in express words limited to England, Wales and Berwick on Tweed, “And this is further manifest from the constitutions of the plantations being, as it were, settled by national consent, for those whose thoughts in religious affairs could not square with the public establishment in church government, discipline, and ceremonies; as New England for Independents and Presbyterians; Rhode Island and New Jersey, and we may say New York for the several sorts of Dissenters in General; Pennsylvania for the Quakers, and Maryland for papists in particular. As to the Queen's instructions they are not, and cannot have the force of law. And it is already evidently proved that the Acts of the Assembly of New York allow of Liberty of Conscience with freedom of public worship to all but Papists.” He said that this prosecution, (viz. on the authority of the Queen's prerogative and instructions) being the first in the plantations was made the more remarkable,

Mr. David Jamieson appeared next to plead for the defendant. He said he did not call in question the Queen's prerogative, but could not see that the Queen's instructions were a law to any body else but his Lordship, who is directed by them and accountable to the Queen if he does not obey them; they are private directions to himself, and can be no law to others; promulgation gives the finishing stroke to a law. He argued that the Statutes of Elizabeth and Charles against Conventicles were limited because in New York there was no established Religion for the whole province--On the East end of Long Island, there were, and always had been, Independent ministers, and the Dutch and the French have their own ministers. Part of enactments are in express words limited; and the 18th of Charles 2d for suppressing Conventicles, makes the third default banishment for seven years to the plantations (New England and Virginia excepted.) Mr. Makemie has not offended against the Act of Toleration; for Toleration is an exception from some restraint; and since the penal laws are not in force here neither is the Act of Toleration. There is no established church here—and we have liberty of conscience by act of Assembly made in the beginning of the reign of William and Mary, during the Government of Colonel Fletcher. This Province has not

been more than about forty years in the possession of the crown of England, and is made up chiefly of foreigners and dissenters, and persecution would tend to disunite us all. And as this prosecution is the first of this nature known in the province, so it is hoped it may be the last.

Mr. Makemie then obtained permission to speak; and was expressing great astonishment that the Attorney should construe the Act of Toleration as applying to the province of New York, when he had produced an argument to prove that it was local, when Lord Cornbury was examining defendant for commitment.

Judge Mompesson.-“Gentlemen, do not trouble the Court with what passed between you before my Lord, or at any other time, but speak directly to the point.”

M. “May it please your Honour, I hope to make it appear that it is to the point; and what was Mr. Attorney's argument then, is now mine. For whatever opinion I was of, while an absolute stranger to New York and its constitution, now, since I have informed myself thoroughly with its constitution, I am entirely of Mr. Attorney's opinion, and hope he will be of the same still. I allow of the Queen's supremacy, and in all the Attorney has said, I cannot learn one argument or word from all the quoted statutes, that preaching a sermon is the least contempt or overthrow of the supremacy; and I hope it is not unknown to any, that the oath of supremacy has been abolished by a law ever since the Revolution. And I cannot learn from any law yet produced, that Lord Cornbury has any power or directions to grant license to any dissenters, or that any of them are under any obligations to take license from his Lordship before they preach, or after.” He then discussed the Queen's instructions to Lord Cornbury, at large, and with great force, to show that they applied only to members of the Church of England coming from England or other places. He also plead that the penal laws did not and could not extend to New York, where there is no law in favour of the Church of England, and no restriction on the liberty of dissenters. He concluded by saying—“And if Jews, who openly .blaspheme the Lord Jesus-Quakers, and Lutherans, and all others, or most persuasions, are allowed even in this government, it is matter of wonder why we only should not be allowed of, but

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