there is an express law of the province in favour of it, I humbly conceive that my client is not guilty of any offence against the law and I hope and expect the jury will acquit him.”

Mr. William Nicholl next pleaded for defendant and said that as the attorney had brought history from the reign of Henry 8th he would bring some from the Bible, and would begin with the Acts of the Apostles, and show that preaching the gospel was never in itself, or by the common law, found to be a crime. The Apostle preached a new doctrine to the Athenians and was not condemned or imprisoned for it: it was no crime at Corinth; but when his preaching bore on the gains of the silversmiths at Ephesus, they made an uproar rushing into the theatre. It was no offence by the common law, but made so by the 5th of Richard 2d—2d of Пenry 4th-2d of Henry 5th;-but all these Statutes were repealed by 1st of Edward 6th-and the acts of Elizabeth. The four acts against Conventicles are all local and in express words limited to England, Wales and Berwick on Tweed, "And this is further manifest from the constitutions of the plantations being, as it were, settled by national consent, for those whose thoughts in religious affairs could not square with the public establishment in church government, discipline, and ceremonies; as New England for Independents and Presbyterians; Rhode Island and New Jersey, and we may say New York for the several sorts of Dissenters in General; Pennsylvania for the Quakers, and Maryland for papists in particular. As to the Queen's instructions they are not, and cannot have the force of law. And it is already evidently proved that the Acts of the Assembly of New York allow of Liberty of Conscience with freedom of public worship to all but Papists." He said that this prosecution, (viz. on the authority of the Queen's prerogative and instructions) being the first in the plantations was made the more remarkable.

Mr. David Jamieson appeared next to plead for the defendant. He said he did not call in question the Queen's prerogative, but could not see that the Queen's instructions were a law to any body else but his Lordship, who is directed by them and accountable to the Queen if he does not obey them; they are private directions to himself, and can be no law to others; promulgation gives the finishing stroke to a law. He argued that the Statutes of Elizabeth and Charles against Conventicles were limited because in New York there was no established Religion for the whole province-On the East end of Long Island, there were, and always had been, Independent ministers, and the Dutch and the French have their own ministers. Part of enactments are in express words limited; and the 18th of Charles 2d for suppressing Conventicles, makes the third default banishment for seven years to the plantations (New Eng

land and Virginia excepted.) Mr. Makemie has not offended against the Act of Toleration; for Toleration is an exception. from some restraint; and since the penal laws are not in force here neither is the Act of Toleration. There is no established church here--and we have liberty of conscience by act of Assembly made in the beginning of the reign of William and Mary, during the Government of Colonel Fletcher. This Province has not been more than about forty years in the possession of the crown of England, and is made up chiefly of foreigners and dissenters, and persecution would tend to disunite us all. And as this prosecution is the first of this nature known in the province, so it is hoped it may be the last.

Mr. Makemie then obtained permission to speak; and was expressing great astonishment that the Attorney should construe the Act of Toleration as applying to the province of New York, when he had produced an argument to prove that it was local, when Lord Cornbury was examining defendant for commitment.

Judge Mompesson.-" Gentlemen, do not trouble the Court with what passed between you before my Lord, or at any other time, but speak directly to the point."

M. "May it please your Honour, I hope to make it appear that it is to the point; and what was Mr. Attorney's argument then, is now mine. For whatever opinion I was of, while an absolute stranger to New York and its constitution, now, since I have informed myself thoroughly with its constitution, I am entirely of Mr. Attorney's opinion, and hope he will be of the same still. I allow of the Queen's supremacy, and in all the Attorney has said, I cannot learn one argument or 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 unknown to any, that the oath of supremacy has been abolished. by a law ever since the Revolution. And I cannot learn from any law yet produced, that Lord Cornbury has any power or directions to grant license to any dissenters, or that any of them are under any obligations to take license from his Lordship before they preach, or after." He then discussed the Queen's instructions to Lord Cornbury, at large, and with great force, to show that they applied only to members of the Church of England coming from England or other places. He also plead that the penal laws did not and could not extend to New York, where there is no law in favour of the Church of England, and no restriction on the liberty of dissenters. He concluded by saying "And if Jews, who openly blaspheme the Lord Jesus-Quakers, and Lutherans, and all others, or most persuasions, are allowed even in this government, it is matter of wonder why we only should not be allowed of, but

put to molestation, as we now are by present prosecution. Is it because we are Protestants? Is it because we are nearest alike the established church of England of any dissenters? it because we are the most considerable body of Protestants in the Queen's dominions? Is it because we have now, since the union, a national establishment in Great Britain as nearly related and annexed to the crown of England as the Church of England themselves? Sure, such a proceeding, when known, will and must be a prodigy in England."

Attorney-"It is impossible for any man to answer all that has been offered, where so much has been said; and by so many."

Makemie "I verily believe it is impossible for the Attorney to answer what has been said; it is a great truth which he has uttered."

The Attorney then proceeded to argue that the penal laws, at least some of them were coextensive with the Queen's dominions. He said the kings and queens of England command their governors to grant licenses; and that it had been customary to take licenses from the governors.

Mr. Makemie replied at large; and concluded by saying,"And whereas Mr. Attorney affirms that giving and taking license was very common and universal,-I am well assured there never was, neither is, to this day, any such practice in any plantations of America; and there are but few persons as yet in York government that have license ;-for beside the two Dutch ministers who differ upon Long Island-and it is said these licenses are the cause of their difference-there is but one English non-conformist minister in all the government, who has taken a license; and it is certain that Mr. Dubois, and sundry others of the Dutch churches have no license, neither will they submit to any such as are granted."

The Attorney then moved that the jury bring in a special verdict. The judges inclined that way too. The Attorney said, "The matter of fact is plainly confessed by the defendant, as you have heard, and you are to bring it in specially, for the jury are not judges of law."

Mr. Makemie-"May it please your honours-I am a stranger, who lives four hundred miles from this place, and it is known to the whole country what intolerable trouble I have been put to already, and we cannot consent to a special verdict, for that would only increase my trouble, multiply my charges, and give me further delay. Besides it is a known maxim in law-that strangers are always to be favoured with expedition in justice. This seems no way to admit of delay; and if this should be allowed of, no man's innocence would be able to protect him; for if I should be cleared I should suffer more attaint

than if I were guilty of many penal laws in England. And as to the jury's judging of the law, and confessing the fact, I cannot see one point of law to be judged. It is true I have confessed preaching a sermon at the house of Mr. William Jackson, but have not owned it to be a crime, or repugnant to any law, or inconsistent with any of the Queen's instructions; nor hath the attorney made any thing of this nature to appear, for all those ancient statutes of Henry VIII. tend only to throw off the authority, supremacy, and jurisdiction of the Popes and See of Rome, and invest the kings and queens of England with that usurped authority, and to bring ecclesiastical persons under the civil jurisdiction of England, who in times of Popery were made accountable only to the See of Rome, therefore they do not touch, neither are any way applicable to this case.'

Attorney-" These gentlemen acknowledge, and say, that the ministers of the Church of England are to take license, and are obliged so to do; and if so the Dissenters should alsootherwise they must expect more favours and liberty than the ministers of the Church of England."

Makemie "It is the constitution of the Church of England, that the ministers, notwithstanding their ordination, do not preach, or officiate as ministers until they procure a license from their Bishop; and they voluntarily bring themselves under oath of canonical obedience. But finally there is a great deal of reason why ministers of the Church of England submit to license; but not so with us. For it is only bare liberty which Dissenters have; but the others have not only liberty, but a considerable maintenance also, without which I never knew any of them value liberty only. And Dissenters having liberty only, without any maintenance from Government, are not at all under obligations, neither is it required of them to take license."

The Chief Justice then charged the jury-"Gentlemen; you have heard a great deal on both sides, and Mr. Attorney says, the fact is confessed by the defendant;-and I would have you to bring it in specially, for there are some points which I am not now prepared to answer; how far instructions may go, in having the force of law, especially when not published or made known; and one objection made by Mr. Makemie—that is, the oath of supremacy of England is abolished; and how far it will go in this matter, I confess I am not prepared to answer. If you will take upon you to judge of law, you may; or bring in the fact specially. This is the first instance that I can learn that there has been a trial or prosecution of this nature in America."

The Jury asked for the Act of Assembly of New York; and

the defendant desired that the jury might have a copy of the Queen's instructions, which the Attorney opposed and denied. A constable was sworn to attend the jury, who withdrew and in a short time returned again; and being called, found the defendant Not Guilty.

The Court required the reasons for the verdict. The Chief Justice said, they might give reasons for their verdict, or not, as they chose. The foreman said the defendant had not transgressed any law. Another of the jury said, they believed in their consciences they had done the defendant justice. And so the verdict was confirmed.

Mr. Reigniere moved that the defendant be discharged; the Chief Justice referred it till to-morrow morning. Saturday, June 7th, 1707. "Ordered that the defendant be discharged, paying fees."

Mr. Makemie objected to paying such severe fees-but at length agreed to pay all just and legal fees to the Court and officers thereof, who acted indifferently as to this matter; but said it was unreasonable he should pay his prosecutors what they pleased.

It was affirmed that it was the practice; and no argument would be received. Makemie prayed that the bill might be taxed in open Court. This the Chief Justice declined; and it was referred to Robert Milward, Esq., one of the Assistant Judges, who was to give notice to Mr. Makemie or his attorney of the time and place. But no notice was given-and two new items added. The full amount was paid; and a receipt refused the defendant, though the money was paid in presence of two witnesses.

The amount of expenses paid by Mr. Makemie in consequence of this trial was 837. 78. 6d.; of this the Attorney General took 127. 12s. 6d.; the Secretary 57. 12s. 6d.; the High Sheriff, for commitment to his house, for Habeas Corpus, and returns and fees after trial, took 97. 178.; the Judges, under various pretexts, 47. 68. This is without a parallel in the history of the colony; that the High Sheriff and Attorney General should take fees from a defendant who was cleared by the jury.

Soon after his liberation, Mr. Makemie preached again in the church allowed to the French; his sermon was printed; great excitement followed; he was accused of being the author of a pamphlet which was spread abroad soon after his arrival in the province; and the Governor issued new process, and employed his officers, all day of a Sabbath, to find and arrest him again, and bring him to a confinement, and another trial. He escaped their hands, and fled out of the province; and thus gratified his persecutors by leaving York.