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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 Reigu 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 Fletcher, not yet formally repealed.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 bis opinion, That the Pænal Laws of England, did not extend to the Plan
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.
hath Ordained Civil Magistrates to be under him,
them, and to provide that whatsoever is transacted in them,
And in all which Mr. Attorney has offered concerning the Queens Supremacy in Ecclesiastical Affairs, I cannot learn one argument, or one 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 now unknown to any, that the Oath of Supremacy, has been abolished by a Law, ever since the Rovolution, and consequently the Subject must be delivered from some obligation thereby : and how far this will be constructed to extend, I leave to the Judges to determine.
And as to my Preaching without Licence first obtained from Lord Cornbury, which is asserted to be against Law; I cannot hear from any Law yet produced, that Ld. Cornbury has any power or directions to grant a Licence to any Dissenters, or that any of them are under any obligation, to take Licence from his Lordship, before they Preach, or after. Mr. Attorney pretends no Law, unless he concludes the Queens Instructions to be a Law, or have the force of a Law: That they have no force of a Law, has been abundantly proved already; neither am I any way culpable even from the Queens Instructions, which are produced in Court; for they consisting of two parts, or rather two distinct Instructions, not relating at all to the same persons : In the first, his Excellency is required to permit a Liberty of Conscience to all persons except Papists. And this is the Liberty is allowed to Dissenters and which we claim, by virtue of this Instruction: and here is no Licence mentioned and required; for permission is a negative act, and implies no more but this; you shall so allow it, as not to hinder, molest or disquiet them, but rather protect them in it: And Papists being particularly expressed, it cannot be applied to the Church of England ; therefore Dissenters are intended by
this Instruction, and no other; and if this permission is granted us, according to the express words thereof, we desire no more. And it cannot be esteemed by any, that imprisoning and punishing of us at such a rate, for Preaching one Sermon, is a permitting us Liberty of Conscience. The other distinci Paragraph, or rather, the other Instruction, which tho' joined together in this Copy, are at a considerable distance from one another in the Original; as we really found it so, in a Copy of Instructions to a former Governour: And as the former concerns Dissenters, so this is intended for the Clergy of the Church of England; for the words of the Instruction, as you have it above, are these : 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 of you, our Governour. Here is another instruction, which should not be produced or improved against Dissenters; for all mankind, and those of the meanest capacity must conclude and determine, that this concerns only the Clergy of the Church of England, who by their Constitution, are under strict obligations to take Licence, or Certificate from their Ordinary, and such as come to the Plantations, acknowledge the Bishop of London as such ; and no Dissenter, either in England, or any where else in the Queens Dominion, ever took, or ever was under any obligation to take any Licence from the Queens or Kings of England, or any other Person or Persons whatsoever ; until a method & practice bas of late been erected, and forced into practice at New-York: For if our Liberty either depended on a Licence or Certificate from the Bishops of England, or the Governours of America, we should soon be deprived of our Liberty of Conscience, secured to us by Law, and repeated Resolutions of our present Soveraign, and Gracious Queen, inviolably to maintain the Toleration which She is pleased to signifie in Her Royal Instructions to all Her Governours abroad; which we are the more assured of, from the Instructions produced in this Court. So that as the first clause of this latter Instruction, cannot be applied to any other Ministers, but of the Church of England; so the latter clause can be understood of no other but the same sort, or species, as those who came from England with Certificate from the Bishop of London : And it is well known, there are Ministers of the Church of England, who may come, and do come not directly from England, but from some other place, as from sundry Plantations of America ; as Mr. Sharp now Chaplain at Fort- Anne,
came not directly from England, but from Maryland : And I must confess, be being a Minister of the Church of England, and enjoyes a considerable Benefice thereby, was obliged to comply with the Constitution of his own Church, and take a Licence from Ld. Cornbury, is none could be produced from the Bishop of London. But all this is foreign to us, and not at all required of any Dissenter in Europe or America.
And if there had been any thing in these Instructions requiring Dissenters to take any Licence, or empowering Governours of the Plantations to grant them, which we do not find; Preaching a Sermon before such Licence, cannot be judged a Crime, deserving such a Confinement and Prosecution as we have met with; for it has been already made appear, that those Instructions cannot have the force of a Law, to bind the Subject to Obedience, or render him culpable for Disobedience, seeing Promulgation, which is the Life of the Law, and renders all persons inexcusable, never as yet have accompanied these Instructions: So if this be Mr. Attorneys Law we have broke, by not obtaining Licence before Preaching, I hope, you Gentlemen of the Jury cannot but find, we are no way culpable hereby, being neither inconsistent with the Queens Instructions, and not against any Law.
And as to the last part of the Indictment, concerning the Panal Laws, or the sundry Statutes against Conventicles, they never were designed, nor intended by our English Legislators for America, or any of the Plantations thereof; for they are limited & local Acts, all of them restricted to England, Wales, and Berwick upon Tweed, as is manisest from the express words of said Law; neither have been ever put in execution in any of the Plantations, until now; yea, have not been executed, even in England, Wales or Berwick upon Tweed, for which they were Calculated, and made, these twenty years past : And when they were put in the most strict and rigorous Execution in England, which was about the last of the Reign of K. Ch. 2. The Dissenters of America lived very quiet, and even in such Plantations where the Church of England has a full and formal Establishment. But which is more, even Roman Catholicks, who are excluded from all benefit of the Act of Toleration in England; yet cannot be touched in America, by these Pænal Laws; for it is matter of fact known to all, and I appeal to Mr. Reignere if Papists have not liberty, and the exercise of their Religion, without molestation from Pænal Laws, and even in Maryland, where the Church of England has a formal