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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only they were made, and to allow Liberty of Conscience; I hope it will never be thought, that those Pænal Statutes, so repealed, are, or can be for the Publick Good here, and as such extended hither.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 Pænal 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 followeth.

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 Cap. 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 But all these Statutes being repealed by 1 Ed. 6.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 Tweed, so have no relation, to, nor reach to any of the Plantations.

And this is further manifest, from the Constitution of the
Plantations,

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-England 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 thereunto; 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 gives the finishing

stroke

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 of 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 Governours knowledge, could be no breach of his Oath, because it was done without his knowledge, and consequently without his permis

sion.

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 22d. 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

Plantations

Plantations generally, especially in this Province, altho' there be no locality expressly mentioned therein, and that for these Reasons. The title and whole design of it is Toleration; now Toleration is an exception from some restraint; and since the Pænal Laws are not of force here by consequence, neither is the Act of Toleration of force, here is no Established Church for the whole Province; from which we should be tolerated. We have had Liberty of Conscience another way, and by an Act of Assembly, which was made in the beginning of the Reign of K. William and Q. Mary, during the Government of Col. Fletcher, not yet formally repealed. Then again consider the Preamble of the Act of Toleration, to the end that all our Protestant Subjects, may be united in interest and affection; the wisdom of the Nation did at that time combine, to put an end to all Persecution on the score of Religion. Our Assembly was much of the same mind, designing to prevent it, and so are all good men when we did set about erecting a Church of England Congregation in this Town, and obtained a Charter for the same, of Governour Fletcher; altho' we were desirous to have the National Worship amongst us, yet was it the care of these Members, who promoted it, to get such Clauses inserted in it, as should secure the Liberty of the Dutch and French Congregations from our Successors; and in an Act of Assembly made since, for its encouragement, the like care and precaution was had; which are still to be seen.

This Province has not been much more than forty years in the possession of the Crown of England, and is made up chiefly of Foreigners, and Dissenters; and Persecution would not only tend to the disuniting us all, in interest and affection, but depopulate and weaken our Strength, and discourage all such Adventurers for the future. Therefore as this Prosecution is the first of this nature or sort, ever was in this Province, so I hope it will be the last.

The Defendant prayed, he might have liberty to speak for himself, which was granted; and he pleaded in his own defence, the following Arguments, which I publish in his own words.

F. M. I am amazed to find Mr. Attorney so much changed in his opinion; for when I was before my Lord Cornbury, who told us, the Act of Toleration was limited and local, and extended not to the Plantations: And Mr. Attorney being pleased to confirm it, by asserting the same thing, and went a little further, by producing an Argument to strengthen his opinion, That the Penal Laws of England, did not extend to the Plan

tations,

tations, and the Act of Toleration was made to take off the edge of the Pænal Laws; Therefore the Toleration does not extend hither; but we find soon after by an Indictment, both the Pænal Laws and Toleration reaches hither, and all their penalties too.

The Honourable Chief Justice, Roger Mompesson Esqr. interrupted the Defendant, by saying: Gentlemen, Do not trouble the Court with what discourse passed between you, before my Lord, or at any other time, but speak to the point.

F. M. May it please your Honour, I hope to make it appear, it is to the point; and what was Mr. Attorneys argument then, is now mine: For whatever opinion I was of, while an absolute Stranger to New-York, and its Constitution; yet since I have have informed my self thorowly with the Constitution of this place, I am intirely of Mr. Attorneys opinion, and hope he will be of the same still.

And as to the Indictment, to return to the particulars thereof; and first, I am charged with contemning, and endeavouring to Subvert the Supremacy of the Queen in Ecclesiastical Affairs. As to the Queens Supremacy about Ecclesiastical persons and things, we allow and believe, She has as large a Supremacy, as in the Word of God is allowed to any Christian Kings and Princes in the World; and our Confession of Faith, which will compare with any in the World, and is universally known to the Christian World, is very full in that matter; a part whereof is judged necessary to be inserted here, for the information of

many.

Chapter 23. Concerning the Civil Magistrate.

1. God

Od the Supream Lord and King of all the World, hath Ordained Civil Magistrates to be under him, over the People, for his own Glory, and the Publick Good; and to this end hath armed them with the power of the Sword, for the defence and encouragement of them that do well, and for the punishment of evil-doers.

3. The Civil Magistrate may not assume to himself the Administration of Word and Sacraments, or the power of the Keys of the Kingdom of Heaven; yet he hath Authority, and it is his duty to take order, that Unity and Peace be preserved in the Church, that the truth of God be kept pure and intire; that all Blasphemies and Heresies be suppressed, all corruptions and abuses in Worship and Discipline, prevented and reformed; and all the Ordinances of God may be settled; for the better effecting whereof, he hath power to call Synods to be present at

them,

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