« PreviousContinue »
'cording to the Liturgy, and practice of the Church of Eng'land, tfc. At which Conventicle, Meeting and Assembly, 'were five persons or more Assembled together, against the 'Form of the Statute, in that case made and provided against 'the Peace of our Lady the Queen, Her Crown and Dig'nity, fyc.
A true Copy. George Clark, Seer.
Here is a Presentment for Preaching a Sermon at York, highly aggravated into a Cumulative Crime, and thereby the Grand-Jury, led into no small mistake, in point of time; for it is said to be Preached on the two and twentieth day of January; whereas it was preached on the twentieth of January: for these two Ministers were Lord Cornbury's Prisoners, apprehended on Long-Island, on the two and twentieth day instant, by a Warrant, dated the one and twentieth day: Which error was cause enough in point of Law, for overthrowing the whole Presentment, which was so delayed and put off to the last day of the Court, that a Tryal could not be obtained that Court: Therefore Mr. Reignere, the Defendants Council made a motion, that the Defendants appearance be put upon Record, and it was ordered the Defendant be continued on his Recognizance, until the next Term: Mr. Makemie being the only person prosecuted, returns for Virginia, and returns again before June Term, the third of said Month.
Tuesday, the third day of Jwie, 1707.
New- York. Present Roger Mempesson Esqr. Chief Justice.
Robert Milward ) r< T ••
rnL 117 L ?Lsqrs. Justices.
1 nomas rrennam J ^
The first day of the Term.
The Defendants Appearance is entered,
and he is ordered to be continued on his
The Defendant ordered to plead to
Wednesday, June 4th. The Defendant pleads not Guilty of any Crime, by Preaching a Sermon at York.
The Attorney General for the Queen moves to know, if they would allow a Copy of the Queens Instructions to the Governour, Signed by his Excellency, to be brought into Court,
in Vol. IV.—No. 4, 14
in Evidence at the Tryal, seeing his Excellency, who had the Originals, was then in the Jerseys.
The Defendant replied, they could admit of no Copies, seeing there was time enough to have produced the Original; or Mr. Attorney might have compared the Copy with the Original, and might have been able to give his Affidavit to the truth of said Copy; but perceiving if that Copy was not allowed of, the Queens Attorney would put off the Tryal till another time.
Therefore Mr. Attorney General for the Queen, &t Mr. William Nicoll for the Defendant, agrees, that the Copy of such Instructions from Her Majesty to the Governour, as shall be produced by the Attorney General, and Signed by the Governour, shall be admitted on Tryal, to be the same in Evidence, as if the Original Instructions were produced. F. M. Defendant moved, that if allowed in Evidence, he might have a Copy of said Instructions; and further declared, he could not but wonder, of what Service these Instructions which were no Law, could do to Mr. Attorney, seeing the Presentment run upon Statutes and Acts of Parliament, and they expected to have a Tryal before a Court, who were Judges of Law, and not of private Instructions.
Friday, June 6th. 1707.
The Petty Jury called, whose names follow according to the Pannill, and twelve of them Sworn to try the matter in issue, and the Defendant told the Court, he was under great disadvantage, being a Stranger, and knew neither names nor faces; And tho' he knew he had not liberty in that cause, of peremptory objections against any, without showing sufficient ground of exception; but he was informed of one, Mr. Elias JVe«w, who had in discourse to Mr. Anthony Toung, prejudged the Cause, by condemning him for Preaching a Sermon, and justifyed Lord Cornbury's proceedings against him; which being proved by the Deposition of said Young, was approved of by the Judge, as a good objection in Law. The Defendant further adds, he was amazed to find one who was so lately dragooned out of France, for his Religion, and delivered out of the Galleys, so soon prove a Persecuter of the same Religion, for Preaching a Sermon in this City.
The Jurors being Sworn, you may take their Names following.
John Shepherd Foreman Andrew Lauron
Joseph Joseph Wright William Horswell
Thomas Woorden Thomas Carrell.
Joseph Robinson Thomas Baynex.
Bartholomew Larouex Charles Cromline.
Mr. Attorney produced a Copy of the Queens Instructions,Signed by Lord Cornbury, and allowed of by both parties in Evidence, as if the Original were present, and tho' a Copy was denied again and again to the Defendant, yet by a Copy of Instructions from King William to a former Govemour, the same Instructions were found, in the same words; and as they were in two Paragraphs in the produced Copy, so they were found at a great distance from one another in the former Copy, supposed to be agreeable to the Original, and to be two distinct and vastly different Instructions; one of them relating to the Dissenters, the other relating to the Ministers of the Church of England, as may plainly appear from the Instructions themselves in the following words.
And you are to permit a Liberty of Conscience to all Persons (except Papists) so they be corUented with a quiet and peaceable enjoyment of it, not giving offence or scandal to the Government.
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 you, our Govemour.
Mr. Attorney Orders four of Mr. Makemks Hearers to be called, Cap. John Thoobolds, Mr. John Vanhorn, Mr. William Jackson, and Mr. Anthony Young, who answered to their Names.
The Defendant perceiving they were summoned and called, to give their Evidence to the matter of Fact; told the Court, that the Swearing of these four Gentlemen as Evidences, would but give a needless trouble, and take up the Courts time; and he would own the matter of fact as to his Preaching, and more than these Gentlemen could declare upon Oath; for he had done nothing therein, that he was ashamed or afraid of, but would answer and own it, not only before this Bar, but before the Tribunal of Gods Final Judgment. And so Mr. Attorney proposed, and Mr. Makcmie answered the following Questions, or to the same purpose.
Mr. Attorney. You own, that you Preached a Sermon, and Baptized a Child at Mr. William Jacksons.
F.M. Yes, I did.
Mr. Attor. How many Hearers had youl
F. M. I have other work to do, Mr. Attorney, then to number my Auditory, when I am about to Preach to them.
Mr. Attor. Was there above five hearing you 1
F. M. Yes, and 6ve to that.
Mr. Attor. Did you use the Rites and Ceremonies enjoined by, and prescribed in the Book of Common Prayer, by the Church of England?
F. M. No, I never did, nor ever will, until I am better satisfied in my Conscience.
Mr. Attor. Did you ask leave, or acquaint my Lord Cornbury with your Preaching at York, when you dined with him at the Fort 1
F. 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 stopt at York, purely to pay our respects to the Governour, which we did; but being afterwards called, and invited to Preach, as I was a Minister of the Gospel, I durst not deny Preaching, nor I hope ever shall, where it is wanting and desired.
Mr. Attor. Did you acquaint my Lord Cornbury with the •place of your Preaching?
F. M. As soon as I determined to Preach, leave was asked, tho' not by me; for it was the peoples 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 affraid of offending Lord Cornbury; and Mr. Anthony Young went to the Governour, to have his leave, or permission for my Preaching in the Dutch Church; tho' all this was done, without so much as my knowledge: But my Lord opposing and denying it, I was under a necessity of Preaching where I did, in a private House, tho' in a publick manner with open doors. Mr. Attorney in pleading, first read over the Indictment which the Grand Jury found, and endeavoured to prove the several parts thereof, by giving a large and full account of sundry Statutes of K. Henry the 8th, asserting and establishing the Supremacy of the King over all Ecclesiastical Persons and Affairs, in his Dominion of England. And from thence asserted the Queens Supremacy in Ecclesiastical Affairs, and over Ecclesiastick persons; which Supremacy was by a Delegation lodged in his
Excellency Excellency our Governour, which he is sworn to exercise; and this is signified to him by Her Majesties Instructions, which were read in Court.' Then he proceeded to produce, and read as much as was necessary, of those Statutes of Queen Elizabeth, and King Charles the Second, For Uniformity of Worship according to the Rites and Ceremonies of the Church of England; and the Panal Laws against Conventicles: And enlarging his pleadings on these points; he turns to the Gentlemen of the Jury, and says, the matter of fact is plainly confessed by the Defendant, and I have proved it to be repugnant to the Queens Instructions, and sundry Acts of Parliament of England: Therefore did not doubt, but the Jury would find for the Queen, and against the Defendant.
Mr. Ja. Reignere, Attorney for the Defendant, pleads against Mr. Attorney for the Queen, as followeth: The Indictment charges three distinct and separate facts as Crimes against the Defendant.
1. That he, a pretended Protestant Minister, endeavouring •to subvert the Queens Supremacy, Jurisdiction and Authority in Ecclesiastical Affairs; did privately and unlawfully Preach and Teach, at William JacJcsons House, diverse Subjects, privately and unlawfully, to above five in number, without Licence had according to Law, in derogation to the Royal Authority and Prerogative, to the evil example, h cont. Par.
2. That he did assemble diverse unknown, and unvoluntarily, and unlawfully use any other Rites and Forms of Worship, then are in the Common-Prayer and Rites and Ceremonies of the Church of England: Cont. Form. Stat.
3. That being not qualifyed by Law to Preach and Teach in a Congregation or Meeting not allowed by Law, in other manner then according to the practice of the Church of England; at which Meeting were five persons, or more assembled, Cont. Form. Stat.
As to the Indictment, ut supra, that the Defendant did not Preach privately, nor the persons assemble privately, t. e. with doors lockt, barr'd or bolted; nay, it appears by the Evidence, and agreed to the contrary by Mr. Attorney General: that the people met unlawfully, must appear by the violation of some known Law or Statute, in force here, by which such Meeting and Preaching is forbidden; that is to say, the Preaching above five.
I take this Colony, as a Dominion of England, to be governed by, and subject to these three sorts of Laws: J. The Common