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mon Law of England. 2. The express Statutes mentioning the Plantations, and such other as are for publick good (as the Chief Justice was pleased to say in this Court, in the Case depending between Smith and Davis). 3. By the Laws of this Colony, and those are to be as near as may be agreeable to the Laws and Statutes of England; and the Judges of this Court (I dare say) will examine and determine no fact, but according to the mode and rule of some of those Laws.
That Preaching without Licence, and assembling above five is a Crime at Common Law, I never read, and it is not alleadged to be against any Statute; it must be an offence against some Law of this Province, which as yet I never saw, and desire I may now see it; and if such does not appear, then undoubtedly where there is no Law, there cnn be no transgression.
As to what is offered by Mr. Attorney, that the Queen, as Supream Head of the Church of England, hath power to make Ordinances, and punish for breach thereof; that this power is delegated to the Govemour, who is bound by Oath to Execute them.
Supposing and admitting all this; yet nothing like an Ordinance appears: for the Instructions produced by Mr. Attorney cannot have the force of a Law or Ordinance, especially against persons to whom they were never communicated; what they may be to those to whom they were given, who alone hath the Custody of them, and conceals them from publick view.
As to the two Articles in the Indictment; Cont. Form. Stat.
Now there are diverse Statutes made in England, which enjoin a due observance of the Rites and Ceremonies of the Church of England, as the 1st of Eliz. C. 2d. 2. Eliz. C. 1. Twenty pound a month for not going to Church; 29 Eliz. C. 6. the same 3 James, C. 4, ty- 5. But all these were pointed and levelled at Romish Recusants only, tho' sometimes misconstrued to extend to others; also 35 Eliz. C. 1. forbidding all Meeting & Conventicles, under penalties of abjuration & publick submission, did the 16 Car. 2d. now expired, and the 22 Car. 2. but all restricted to England, (Vales, and Berwick on Tweed; but if they had not, as they are positive and additional, they shall be confined strictly to place and words; then the practice of all the Colonies and Plantations, and the Laws made in some of them, for the Establishment of the Church of England, but no such Establishment here; but on the contrary, a Law formerly made in this Province, and in Print, allowing Liberty of Conscience, which I here insert in the following words.
The: The last Clause of an Act of Assembly, made in the Government of New- York, declaring the Rights, and Priviledges of the Subject. That no person or persons, which profess faith in God, by Jesus Christ, his only Son, shall at any time be any way molested, punished, disturbed, disquieted, or called in question, for any difference in opinion, or matter of Religious Concernment, who do not under that pretence disturb the civil peace of the Province, &c. And that all and every such person and persons, may from time to time, and at all times hereafter, freely have, and fully enjoy, his or their opinion, perswasion and judgment, in matters of Conscience and Religion, throughout all this Province; and freely meet at convenient places, within this Province; and there Worship according to their respective perswasions, without being hindrcd or molested, they behaving themselves peaceably, quietly, modestly and religiously; and not using their Liberty to licentiousness, nor to the civil injury, or outward disturbance of others. Always provided, that nothing herein mentioned or contained, shall extend or give liberty to any persons of the Romish Religion, to exercise their manner of Worship, contrary to the Laws and Statutes of Their Majesty's Kingdom of England.
And tho' Mr. Attorney endeavouring to invalidate this, by denying this Law to be in force, yet could not prove this Law abolished.
And by one of the Instructions, which Mr. Attorney produced, in totidem verbis, is the same, that has been given to former Governours of this Province, Liberty of Conscience is directed to be allowed.
As to the Third Article in the Indictment, that seems to refer to the first of William and Mary, of Toleration; but as we say, the Prenal Statutes did not extend hither, so is there no occasion of Toleration. The Laws and Statutes of England by their own force, extend equally to all Plantations of England alike; and if these Paenal Laws did extend to the Plantations, the Crown of England, would never Tolerate the Governments of Boston, Rhode-island, Connecticut, and others; who in their Church-Discipline are so far from Conforming to the Church of England, that they have Set up and Established another sort of Church-Discipline universally among them; but notwithstanding this, they are allowed the liberty they always used in their Church without molestation, and were so allowed in the very time when these Pfenal Laws were in force in England; but now since by the late Act of Toleration, it was thought by
the wise and experienced Legislators of England, to be for the Publick Good, to repeal these Laws, even there, for which place only they were made, and to allow Liberty of Conscience; I hope it will never be thought, that those Paenal Statutes, so repealed, are, or can be for the Publick Good here, and as such extended hither. Wherefore, forasmuch, as neither by the Common Law of England, nor by any Law of this Province produced, or even alleadged by Mr. Attorney, such Preaching or Meeting, doth appear unlawful (but on the contrary, an express Law of this Province doth allow it, as hath been shewen) and that the Paenal Laws and Statutes of England against Dissenters, can by no reasonable construction, be extended hither, I humbly conceive my Client is not guilty of any offence against Law, and hope the Jury will acquit him accordingly.
Mr. William Nicol, Attorney for the Defendant, pleads in the next place, as followedl.
Mr. Attorney has been entertaining us with some History from the Reign of K. Henry 8. And it is fit we should entertain him with some History also, more ancient, and from better Authors, and that is from the Acts of the Apostles; for we do find, that Teaching, or Preaching, or Speaking in it self, or by the Common Law, was never found a Crime ; for the Apostle Paul Preached a very new Doctrine to the Athenians, which was an ancient Commonwealth, and was not Condemned or Imprisoned for it, but they were curious to hear again, Act. 17. concerning the new Doctrine of the Resurrection; but we find, when the same Apostle began to insist on any Doctrine which tended to infringe the gain of the Silver Smiths, who Act. 18. made Shrines for Diana, the Goddess of the Ephesians, they were enraged, and made an uproar against him, rushing into the Theatre; but it was no Crime, either in Corinth or Athens, where no man was hurt by the Doctrine itself, neither was obstructed by, nor any offence to the Civil Government.
And it is plain, it was no offence at Common Law, but was made so by the old Statutes of 5 Rich. 2. Cap. 5. 2 Hen. 4 Cay. 15. 2 Hen. 5. But all these Statutes being repealed by 1 Ed. 6. and by Acts of Eliz. it was still no transgression, but remains as it was, no crime at Common Law.
And the four Statutes against Conventicles in Ch. 2. are all local, and in express words, limited to England, Wales, and Berwick on Ttveed, so have no relation, to, nor reach to any nf the Plantations.
And this is further manifest, from the Constitution of the
Plantation?, Plantations, being as it were settled by National Consent, for those whose thoughts in Religious Affairs could not square with the Publick Establishment in Church Government, Discipline and Ceremonies, as New-En gland for Independants and Presbyterians, Rhode-Island and New-Jerseys, and we may add New- York, for the several sorts of Dissenters in general; Pensilvania and Maryland, for Quakers & Papists in particular.
And this being the first that was prosecuted in this nature in the Plantations, is made the more remarkable, so long after the news of those harsh Statutes of Ch. 2. have been cut by the Statute of 1. William & Mary.
And it is already evidently proved, that the Acts of Assembly of New- York, allow Liberty of Conscience, with freedom of Publick Worship, to all but Papists.
What was offered on the other side, by Mr. Attorney, as being against the Queens Prerogative in Ecclesiastical Affairs, was foreign, and not at all to the purpose; for all the Statutes relating to that matter, being to assert the Queens Empire, and Jurisdiction over Ecclesiastical Persons, as well as Lay-men, in opposition to the Claim and Usurpation of the See of Rome, to exempt the Clergy, or Church-men, from the Civil and Secular Power.
And as to the Queens Instructions, they are not, neither can have the force of a Law; besides that, these two Instructions produced in Court, are no way against us, but rather for us.
Mr. David Jamison, Attorney for the Defendant, appears next to plead in the following manner.
Mr. Reignere, and Mr. Nicol, Attorneys on the same side, having offered so many and large Arguments, have left but little room for new matter to be offered, without enumerating what was offered upon the three heads of the Indictment.
As to the first, which was Preaching and Teaching without Licence, against the Queens Supremacy and Prerogative in Ecclesiastical Affairs. We did not come here to oppose, or call in question the Queens Prerogative or Supremacy: but were willing to pay all due respect & deference th.ereun.to; but we cannot see, that these Instructions from the Queen to my Lord Cornbury, of which Mr. Attorney has produced a Copy, and which he alleadges to be the Law we have broken by Preaching, contrary to the Queens Instructions, which are not a Law to any body else, but to his Lordship, who is directed by them, and is accountable to the Queen, if he do not observe them. Her Instructions are private directions to himself, and can be no Law to others: Promulgation is that which givcs#the finishing
stroke to a Law. Nor do I see how his Lordship should become guilty of breach of Oath, as Mr. Attorney was pleased to offer, by not ordering the prosecution of this Gentleman, for Preaching without his Licence; altho' he be Sworn to obey and observe his Instructions, because the very Instructions produced, give Liberty of Conscience to Protestant Dissenters, and are in two distinct Paragraphs; the first seems to me wholly to agree with our Act ot Assembly of this Province, is to the same purpose, and very near the same words; the other Paragraph is negative: 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 Governour. And a Dissenting Minister Preaching here without the Govemours knowledge, could be no breach of his Oath, because it was done without his knowledge, and consequently without his permission.
To the Second, as to the Statutes of Eliz. and Charles 2. against Conventicles, they were limited and local Acts or Statutes, and could not any way reach these Plantations; for here in New- York we have no Established Religion for the whole Province. On the East-end of Nassaw, or Long-Island, were, and always have been Independant Ministers, the French had their own way and Ministers, and the Dutch in like manner; the very Jews and Quakers have the free Exercise of their Religion; and there is not one Form of Worship Established for the whole Province. The 16th. as well as 22 of K. Charles 2. are limited to the Kingdom of England, Dominion of Wales, and Town of Berwick upon Tweed; and therefore the using of any other Form of Worship in this Province, then what is contained in the Common-Prayer, cannot be a Breach of those Statutes. Then again the 16 of Ch. 2. for suppressing Conventicles, makes the third default Banishment, for seven years into the Plantations (New-England and Virginia excepted;) And how can it be supposed, that the Plantations the places to which the defaulters were to be Banished, can be understood to be comprehended within the meaning and penalty of that Statute; that did continue in force, for little more time than four years. The other of the 22rf. did supply its room, and had much more mild penalties.
As to the third, which is that he Preached without being qualifyed, that is laid against the Act of Toleration. I did offer, that this Statute likewise was not, nor is in force in the