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name, but by Cornbury's own authority; were accused of two crimes—of not qualifying according to law—and of preaching in New York without license from the Governor: whereas they had been qualified in Maryland and Virginia, and offered themselves to qualify in New York, both before Cornbury and the Quarter Sessions.
On Tuesday March 11th, the Supreme Court was in form, Messrs. Makemie and Hampton made their appearance; on the Attorney General's motion, they were required to appear the last day of the term. Mr. Reigniere, their attorney, moved that the writ of habeas corpus and all the proceedings of the Judges' Chamber might be made matter of record; the Attorney General opposed
the record on the ground that the thing had not been done in open court. On the next day the Judge delivered to the Court a record of the proceedings in his chamber.
The grand jury were sworn the first day of the term, this matter was given them in charge, with little business beside, and after various meetings and consultations, the Attorney having dropped the name of John Hampton from the prosecution, they brought in their bill against Mr. Makemie on Friday afternoon, their vote being taken, one by one, as they came in from dinner. Some of the grand jury were justices of the peace, who at the Quarter Sessions had refused to have the petitions of the prisoners read, or to pay any attention to the applications for licensing a place of public worship. Four witnesses were examined, one of them Lord Cornbury's coachman, by name of Harris, and gave evidence that they heard no unsound doctrine, or any thing against the government; one of the evidences handed to the jury the act of assembly of New York for liberty of conscience for all, except Papists. The bill charges Mr. Makemie with having preached in New York, to an assembly of more than five persons, without having obtained permission, and without qualification; and also that he used other rites and ceremonies than those found in the book of common prayer. The date of the offence was put, in the bill, January 22, whereas it took place on the 20th of that month. The bill being brought in the last day of the court, the trial was postponed till the next term, in June. Mr. Makemie on the bail, previously given, of £40 for himself, and £20 for Mr. Johnstone, gentleman, and £20 for Mr. Jackson, cordwainer, was permitted to return to Virginia. While the preparations for trial were going on, an order was given to Major Sandford, of East Jersey, to examine upon their oaths certain persons, to discover what discourse they had with some of their friends at the house of Mr. Jasper Crane of Newark; these persons were examined, but nothing found to suit the purpose, either of finding out a crime, or magnifying their faults.
In this stage of the business, we may suppose Lord Cornbury was willing, and expected, the matter should rest; Hampton was dropped from prosecution, having been punished by above six weeks confinement for offending the deputy ;-and Makemie, the chief offender, was let out on bail, which he might forfeit, and thus be kept from New York, and the odium of a trial avoided. But Makemie was not the man to forfeit his bonds, or avoid a trial where the honour of the gospel was concerned. If Lord Cornbury had been excited against him, his spirit had been equally aroused to resist the persecution of the tyrannical deputy, and vindicate the right of Presbyterians in the incipient city of New York.
On his way home to Accomac, he attended the meeting of the Presbytery in Philadelphia, which commenced its sessions March 22, (Saturday) 1707. “ Mr. Francis Makemie and Mr. John Wilson are appointed to preach upon Tuesday, upon the subjects appointed them at the last Presbytery, on Heb. i. 1st and 2d, by way of exercise and addition. March 25th, (Tuesday)-This day Mr. Francis Makemie and Mr. John Wilson delivered their discourses according to appointment.” On Wednesday he was directed to write to Scotland for the purpose of obtaining Mr. Alexander Coldin as minister for the people about Lewistown. On the same day the following interesting overtures were passed; interesting in themselves, and particularly as the last important presbyterial act performed by Makemie; viz. “First—That every minister in their respective congregations, read and comment upon à chapter of the Bible. every Lord's day, as discretion and circumstances of time, place, &c. will admit. Second over.—That it be recommended to every minister of the Presbytery to set on foot and encourage private Christian societies. Third over.That every minister of the Presbytery supply neighbouring desolate places where a minister is wanting, and opportunity of doing good offers." The next meeting of Presbytery was after he had made his will. The supply of desolate places with the gospel was the object of his ministerial life.
Mr. Makemie returned from Accomac “with his man," to New York, in time to meet the Court on the first day of its sessions; the defendant's appearance was entered, and he was “ ordered to plead to-morrow.”
Wednesday June 4th 1707. The defendant plead not guilty of any crime by preaching a sermon at York. Lord Cornbury being in the Jerseys, the Attorney moved that a copy of the Queen's instructions to the
Governor be received as evidence at the trial. Mr. Makemie objected—that there was time to get the original; or the Attorney might produce a certified copy. But finding that the trial would be put off another term 'unless the Attorney's copy were admitted, it was agreed that it should be received as if the original were present: Mr. Makemie observing—“he could not but wonder of what service these instructions, which were no law, could be to Mr. Attorney, seeing the presentment run upon statutes and act of parliament, and they expected to have a trial before a court who were judges of law and not of private instructions."
On Friday June 6th, 1707 the Petit jury was called: the defendant said he was under great disadvantage, being a stranger and not knowing either names or faces of the persons summoned as a jury; that he knew he had not the privilege of peremptory challenge;—but that he was informed that one of them=Mr. Elias Neace, in discourse with Mr. Anthony Young had prejudged the cause, by condemning him for preaching a sermon, and justifying Lord Cornbury's proceedings against him; and this being proved by the testimony of Mr. Young, Mr. Neace was set aside. Mr. Makemie farther said, “he was amazed to find that one so lately dragooned out of France for his religion, and delivered out of the galley, so soon prove a persecutor of the same religion for preaching a sermon in this city. The names of the jury are worthy of remembrance for the verdict they had the courage to render in face of the Governor and his attorney and the Justices of the Quarter Sessions : they were—John Shepherd, foreman, Thomas Ives, Joseph Wright, Thomas Wooden, Joseph Robinson, Bartholomew Larouex, Andrew Lauron, Humphrey Perkins, William Horswell, Thomas Carrell, Thomas Bayeux, and Charles Cromline.
Mr. Attorney produced a copy of the Queen's instructions signed by Lord Cornbury, which was allowed; these instructions were found to be the same as those given by King William to a former Governor; in the produced copy they were in two sentences; in the former instructions they were in two sentenees but a great distance from each other; 1st. “ You are to permit a liberty of conscience to all persons except Papists, 80 that they be content with a quiet and peaceable enjoyment of it, not giving offence or scandal to the government. 2d. 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 the Governor.”
The Attorney ordered four of Mr. Makemie's hearers to be called—Capt. John. Theobalds, Mr. John Vanhorne, Mr. William Jackson, and Mr. Anthony Young; the defendant told the Court the swearing of these witnesses was unnecessary-“I own the matter of fact as to preaching, and more than these gentlemen could declare on oath; for I have done nothing therein, of which I am ashamed, or afraid; but will answer it not only before this bar, but before the tribunal of God's final judgement.”
Attorney—“You own that you preached a sermon, and baptized a child at Mr. William Jackson's?"
M. “I have other work to do, Mr. Attorney, than number
A. “Did you use the rites and ceremonies enjoined by, and prescribed in the Book of Common Prayer by the Church of England ?"
M. “No: I never did, nor ever will, till I am better satisfied in my conscience."
A. "Did you ask leave, or acquaint my Lord Cornbury with your preaching at York, when you dined with him at the fort ?"
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 stopped at York purely to pay our respects to the Governor, which we did; but being afterwards called and invited to preach, as I was a minister of the gospel I durst not deny preaching, and I hope I never shall when it is wanting and desired."
A. “Did you acquaint Lord Cornbury with the place of your preaching?"
M. “As soon as I determined to preach leave was asked but not by me; for it was the people's 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 afraid of offending Lord Cornbury. And Anthony Young went to the Governor to have his leave, or permission, for my preaching in the Dutch Church, though all this was done without so much as my knowledge. But my Lord opposing and denying it, I was under the necessity of preaching where I did, in a private house, though in a public manner with open doors.'
The Attorney then entered into a full statement of the Statutes of Henry Eighth establishing the supremacy-from thence he asserted the Queen's supremacy in Ecclesiastical affairs and over Ecclesiastical persons,--that this supremacy had been delegated to the Governor and expressed in her majesty's instructions. He produced the Statutes of Elizabeth and Charles 2d for Uniformity-and concluded by saying "the matter of fact is plainly confessed—and I have proved it to be repugnant to the Queen's instructions and sundry acts of Parliament, and doubt not the jury will find for the Queen.”
Mr. James Reigniere pleaded for the defendant—That the indictment charged three separate facts as crimes ; first-that a pretended minister endeavouring to subvert the Queen's supremacy, did privately and unlawfully preach at Wm. Jackson's house, without license; Second,- that he did unlawfully use other rites and ceremonies than are in the book of Common Prayer ;-and thirdly—that he was not qualified by law to preach-and had held an unlawful assembly. He denied that the defendant had preached privately: and also that he had preached unlawfully, because he had violated no law forbidding the preaching to above five. He said the colony was governed ist by the Common law of England: 2d, By express Statutes mentioning the Plantations: 3d, By laws of the colony: and that he had never read that preaching without license to above five is a crime; and it is not alleged to be against a Statute for the Provinces; it must then, to be a crime, be against a law of the colony ;-let it be producedwhere there is no law there can be no transgression.
He argued that the Statutes of Elizabeth and James and Charles were either aimed at Popish recusants or restricted to England, Wales and Berwick on the Tweed. Besides there is no Established church in New York; and liberty of conscience is allowed by law of the Province—“That no person or persons who profess faith in God by Jesus Christ his only Son, shall at any time be any way molested, for any difference of opinion or matter of religious concernment, who do not under that pretence disturb the civil peace of the province.”—“And all such persons may freely meet at convenient places within this province and there worship according to their respective persuasions.” From this act the papists were excepted.
As to the third charge-he argued that as the penal statutes did not extend hither, there was no need of Toleration. That the penal laws extend equally to all plantations alike, and if the penal laws extended to the plantations, then the crown would not tolerate the governments of Boston, Rhode Island, Connecticut, and others, which in their church affairs differ so much from the Church of England. But these are allowed the Liberty they always used in the church. “As therefore it does not appear by the common law of England, or any law of the province that his preaching is unlawful;—but on the contrary