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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 Governour, 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 contented 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 Governour.

Mr. Attorney Orders four of Mr. Makemies 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. Makemie answered the following Questions, or to the same purpose.

Mr.

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 you?

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?

F. M. Yes, and five 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?

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 Jacksons 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, & 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, i. 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, inust 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: 1. The Com

mon

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 can 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 Governour, 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 inay 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, & 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, Wales, 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.

persons,

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 may from time to time, and at all times hereafter, freely have, person and 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 hindred 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 Pænal 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 Pænal 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 Pænal Laws were in force in England; but now since by the late Act of Toleration, it was thought by

the

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