LIBRARY OF CONGRESS 
 
 014 1073540 ^ 
 
Makemies Try ah 9 
 
 And in regard tlie Interlocutory Conference upon that Occa- 
 sion, which continued for some titne, lias been misrepresented 
 by sundry hands, and is a seasonable &: suitable preliminary to 
 the ensuing Tryal : It is judged expedient to publish as much 
 thereof, as was very soon committed unto Writing, as follow- 
 eth. 
 
 Lord Cornbury. How dare you take upon you to Preach 
 in my Government, ivithout my Licence 1 
 
 Mr. Makemie. We have Liberty from an Act of Parlia- 
 ment, made the First Year of the Reign of King IVilliam and 
 Queen Mary, which gave us Liberty, with which Law we have 
 complied. 
 
 Ld. C. None shall Preach in my Government without my 
 Licence 1 
 
 F. M. If the Laiu for Liberty, my Lord, had directed us 
 to any particular persons in Authority for Licence, we would 
 readily have observed the same ; but we cannot find any direc- 
 tions in said Act of Parliament, therefore could not take notice 
 thereof. 
 
 Ld. C. That Law does not extend to the American Plan- 
 tations, but only to England. 
 
 F. M. My Lord, I humbly conceive, it is not a limited nor 
 local Act, and am well assured, it extends to other Plantations 
 of the Queens J)ominions, which is evident from Certificates 
 from Courts of Record of Virginia, and Maryland, certifying 
 we have complied with said Law. 
 
 Both Certificates were produced and read by Lord Cornbury, 
 who was pleased to sav, these Certificates extended not to New- 
 York. 
 
 Ld. C. I know it is local a7id limited, ybr 1 ivas at making 
 thereof. 
 
 F. M. Your Excellency might be at making thereof, but we 
 are well assured, there is no such limiting clause therein, as is in 
 Local Acts, and desire the Law may be produced to determine 
 this point. 
 
 Ld. C. Turning to Mr. Attorney, Mr. Bekely, who was 
 present, ask^d him, Is it not so, Mr. Attorney ? 
 
 Mr. Attorney. Yes, it is Local my Lord, and producing an 
 Argument for it, further said, that all the Ptenal Laws were 
 Local, and limited, and did not extend to the Plantations, and 
 the Act of Toleration being made to take off the edge of the 
 Pasnal Laws; therefore the Act of Toleration does not extend 
 to any Plantations 1 
 
 F. M. I desire the Law may be produced ; for I am morally 
 
 perswaded 
 Vol. IV.— No. 4. 13 
 
10 Makemies Tryal. ; ' 
 
 perswaded, there is no limitation or restriction in the Law to 
 England, Wales, and Bcrivick on Tweed ; for it extends to 
 sundry Plantations of the Queens Dominions, as Darbadots, 
 Virginia, and Maryland; which was evident from the Certifi- 
 cates produced, which we could not have obtained, if the Act 
 of ParHament had not extended to the Plantations. 
 
 And Mr. Makemie further said, that he presumed JVe?t'-yo/-^- 
 was a part of Her Majesties Dominions also; and that sundry 
 Ministers on the East-end of Long-Island, had complied with 
 said Law, and qualified themselves at Court, by complying 
 with the directions of said Law, and have no Licence from your 
 Lordship. 
 
 Ld. C. Yes, New-York is of Her Majesties Dominions ; 
 hut the Act of Toleration does not extend to the Plantations 
 by its oivn intrinsick vertue, or any intention of the Legislators, 
 but only by her Majesties Royal Instructions signifyed unto me, 
 and that is from Her Prerogative and Clemency. And the 
 Courts which have gualifyed those men, are in error, and I 
 shall check than for it. 
 
 F. M. If the Law extends to the Plantations any manner of 
 way, whether by the Queens Prerogative, Clemency, or other- 
 wise, our Certificates were a demonstration we had complied 
 therewith. 
 
 Ld. C. These Certificates only ivere for Virginia and Ma- 
 ryland ; they did not extend to New- York. 
 
 jP. M. We presume my Lord, our Certificates do extend as 
 far as the Law extends ; for we are directed by the Act of Par- 
 liament, to qualifie our selves in the places where we live, which 
 we have done ; and the same law directs us to take Certificates of 
 our qualification, which we have accordingly done ; and these 
 Certificates are not to Certify to such as behold us taking our 
 Qualification, being performed in the face of the Country, at a 
 publick Court ; but our Certificates must be to satisfie others 
 abroad in the World, who saw it not, nor heard any thing of it, 
 otherwise it were needless. And that Law which obliges us to 
 take a Certificate, must allow said Certificate to have a credit 
 and reputation in Her Majesties Dominions, otherwise it is to 
 no purpose. 
 
 Ld. C. That act of Parliament was made against Strow- 
 ling Preachers, and you are such, and shall not Preach in my 
 Government. 
 
 F. M. There is not one word, my Lord, mentioned in any 
 part of the Law, against Travelling or Strotvling Preachers, as 
 Your Excellency is pleased to call them ; and we are to judge 
 
 that 
 
^Vakemies Tvijal. 1 1 
 
 thai to be the true end of the Law, which is specifyed in the 
 Preamhle thereof, which is for the satisfaction of Scrupulous 
 Consciences, and Uniting the Subjects of England, in interest 
 and affection. And it is well known my Lord, to all, that 
 Quakers, who also have Liberty by this Law, have few or no 
 fixed Teachers, but chiefly taught by such as Travel; and it is 
 known to ail such are sent forth by the Ytarlij Meeting ^i Lon- 
 don, and Travel and Teach over the Plantations, and are not 
 molested. 
 
 Ld. C. I have troubled some of them, and will trouble them 
 more. 
 
 F. M. We hear niy Lord, one of them was Prosecuted at 
 Jamaica, but it was not for Travelling or Teaching, but for pa?'- 
 ticulars in Teaching, for which he sufiered. 
 
 Ld. C. You shall not spread your Pernicious Doctrines 
 here 7 
 
 F. M. As to our Doctrines, my Lord, we have our Confes- 
 sion of Faith, which is known to the Christian World, and I 
 challenge all the Clergy of York to show us any false or perni- 
 cious Doctrines therein ; Yea, with those exceptions specifyed 
 in the Law, we are able to make it appear, they are in a\\ Doc- 
 trinal Articles of Faith agreeable to the Established Doctrines 
 of the Church of England. 
 
 Ld. C. There is one thing wanting in your Certificates, 
 and that is Signing the Articles of the Church of England. 
 
 F. M. That is the Clerks omission, my Lord, for which we 
 are no way accountable, by not being full and more particular; 
 but if we had not complyed with the whole Law, in all the 
 parts thereof, we should not have had Certificates pursuant to 
 said Act of Parliament. And Your Lordship may be assured, 
 we have done nothing in complying with said Law, but what 
 we are still ready to perform, if your Lordship require it, and 
 that ten times over : And as to the Articles of Religion, 1 have 
 a Copy in my Pocket, and am ready at all times to Sign, with 
 those exceptions specifyed in the Law. 
 
 Ld. C. You Preached in a Private House, 7iot certifycd 
 according to Act of Parliament. 
 
 F. M. There were endeavours used for my Preaching in a 
 more publick place, and (tho' without my knowledge) your 
 Lordships permission was demanded for my Preaching in the 
 Dutch Church ; and being denied, we were under a necessity, 
 of assembling for Publick Worship in a Private House, which 
 we did, in as publiclt a manner as possible, with open doors: 
 And we are directed to certify the same to the next Quarter 
 
 Sesssions, 
 
12 Mahemies Tryal. 
 
 Sessions, which cannot be done, until the Quarter Sessions come 
 in course; for the Law binds no man to impossibiHties ; and if 
 we do not certifie to the next Quarter Sessions, we shall be cul- 
 pable, but not till then: For it is evident, my Lord, that this 
 Act of Parliament was made, and passed the Royal Assent, 
 May 2ith. And it being some time before the Quarter Ses- 
 sions came in course, and all Ministers in England continued to 
 Preach, without one days cessation or forbearance ; and we hope 
 the practice o^ Englatul. should be a president for America. 
 
 Ld. C. None shall Preach in my Government, without my 
 Licence, as the ^ueen has signifyed to me, by her Royal In- 
 structions. 
 
 F. M. Whatever direction the Queens Instructions may be 
 to Your Lordship, they can be no Rule or Law to us, nor any 
 particular persons who never saw, and perhaps never shall see 
 them: for Promulgation is the life of the Law. 
 
 Ld. C. You must give Bond and Security for your good 
 Behaviour, and also Bond and Security to Preach no more i7i 
 my Government ? 
 
 F. M. As to our Behaviour, tho' we have no way broke it, 
 endeavouring always so to live, as to keep a Conscience void of 
 offence, towards God and Man : Yet if his Lordship required it, 
 we would give Security for our Behaviour ; but to give Bond 
 and Security to Preach no more in Your Excellency's Govern- 
 ment, if invited and desired by any people, we neither can, nor 
 dare do.' 
 
 Ld. C. Then you must go to Goal? 
 
 F. M. We are neither ashamed, nor affraid of what we have 
 done ; and we have complied, and are ready still to comply with 
 the Act of Parliament, which we hope will protect us at last : 
 And it will be unaccountable to England, to hear, that Jeivs, 
 who openly blaspheme the Name of the Lord Jesus Christ, and 
 disown the whole Christian Religion ; Quakers who disown the 
 Fundamental Doctrines of the Church of England, and both 
 Sacraments ; Lutherans, and all others, are tolerated in Your 
 Lordships Government : and only we, who have complied, and 
 are still ready to comply with the Act of Toleration, and are 
 nearest to, and likest the Church of England of any Dissenters, 
 should be hindered, and that only in the Government of New- 
 York, and the Jersies. This will appear strange indeed. 
 
 Ld. C. You must blame the Queen for that ? 
 
 F. M. We do not, neither have we any reason to blame Her 
 Majesty, for She molests none, neither countenances or encour- 
 ages any who do; and has given frequent assurances, and of 
 
 late 
 
Makemies I'ryal. 13 
 
 late in Her Gracious Speech to Her Parliament, That she would 
 inviolably maintain the Toleration. 
 
 While Lord Co rnbivi/ was writing Precepts for discharging us 
 from the custody of Carclale, High Sheriff of Qiteens County in 
 Long-Island, and another for our Commitment in York; Mr. 
 John Hampton demanded a Licence of Lord Cornbury, but he 
 absolutely denied it. 
 
 And before finishing of said Mittimus, for their Tommitment, 
 Mr. Francis Makemie moved, that it was highly necessa.y be- 
 fore their Commitment, the Law should be produced, to deter- 
 mine that point, whether it is local and limited, or not: And it 
 is not to be doubted, but Mr. Attorney was soon able to produce 
 the Law : And he further offered to pay Mr. Attorney for a 
 Copy of that Paragraph, in which the limiting Clause is, if any. 
 But every thing relating hereunto was declined and disre- 
 garded. 
 
 Ld. C. You Sir, Know Law. 
 
 F. M. 1 do not my Lord, pretend to know Law, but I pre- 
 tend to know this particular Law, having had sundry disputes 
 thereon. The Mittimus being finished, they were committed 
 to the Custody o( Ebenezer Wilson, High Sheriff of York City 
 and County, and carried to his Dvvelling-House, as the place of 
 their Confinement ; and after sundry demands, they had upon 
 the 25th day, the following Copy of the Precept, for their Com- 
 mitment. 
 
 YOU are hereby Required and Commanded to take 
 into your Custody, the Bodies o/ Francis Makemie 
 (Seal) and John Hampton, and them safely keep till further 
 Orders ; and for so doing, this shall be your Warrant. 
 Given under my Hand and Seal, this 23d. day of 
 January, 1706, 7. 
 
 Cornbury. 
 
 To Ebenezer Wilson, Esqr. High- 
 Sheriff of New-York. 
 
 A true Copy, Ebenezer Wilson. 
 
 There are sundry things observable in this Warrant of Com- 
 mitment, which is not usual in Warrants granted in England. 
 1. That it is Granted and Signed by the Supream Authority, 
 and not by any Sworn Officers, appointed and authorized by 
 Law, for Commitment of Oflenders: And ihe Supream Autho- 
 rity of England, have not put any such power into practice, 
 
 without 
 
14 Makemies Tryal. 
 
 without a Special Act of Parliament, impowring them so to do; 
 and that only upon necessity and emergent occasions. 2. Here 
 is no mention of the Queens JName, or Authority, which must 
 be acknowledged a novelty not easily understood. 3. There is 
 not the least shadow of a crime, or suspicion of a crime 
 alleaged, which is but a slender cause of Conmiitment. 4. 
 This Mittimus is erroneous in Conclusion, which should be, un- 
 til they are delivered by due course of Law, and not until 
 further Order, which is condemned by Law and Lawyers as in- 
 sufficient. 
 
 And finding themselves Imprisoned, and put under an unlimi- 
 ted Confinement, they addressed Lord Cornbury, by the follow- 
 ing Humble Petition, presented to his Lordship, by the Hands 
 of Ebenezer Wilson, High Sherifi^ 
 
 To His Excellency Edu-ard Viscount Cornbury, Captain 
 General, and Governour in Chief, of the Province of iVeti^- 
 YorJi, Neiv- Jerseys, and all the Tracts of Land depending 
 thereon in America, and Admiral of the same. The Hum- 
 ble Petition of Francis Makemie, and John Hampton. 
 
 Most Humbly Sheweth. 
 
 fW^Hat whereas Your Excellency has been pleased to Commit 
 -*- us to Prison, by a Precept, wherein there is no crime 
 alleadged ; we Your Lordships most humble Petitioners and 
 Prisoners, most humbly pray, ive may be admitted to know our 
 Crime. And Your Excellency's most humble Petitioners ^ 
 Prisoners further pray, as we are Strangers on our Journey to 
 New-England, above four hundred milts from our Habitations, 
 we may be allowed a speedy Tryal, according to Law, which we 
 humbly conceive, to be the undoubted right and. priviledge of 
 every English Subject. And Your Excellency's most humble 
 Petitioners, and aflicted Prisoners, shall, as in duty bound 
 always pray. Francis Makemie. 
 
 John Hampton. 
 
 To which Petition, after sundry days, they received the fol- 
 lowing verbal answer, by the Sheriff who presented the former 
 Petition. 1. Lii. Cornbury did admire they should Petition to 
 know their Crime, he having so oft told them. 2. If they take 
 the right way, they may have a Tryal. And tho' they signified 
 
 their 
 
Makcmies Tryal. 15 
 
 their desire, both to the Sheriff and Mr. Attorney, to know what 
 that right way was ; yet could learn nothing ; therefore resolved 
 to arm themselves with patience, until they could obtain a IVrit 
 of Habeas Corpus from the Honourable Roger Mompcsson 
 Esqr. Chief Justice, who lived in another Government, and 
 could Sign no such Writ, until he came into the Government of 
 I^ew-York ; k, thereby to bring our selves to a Tryal, or dis- 
 charged according to due course of Law. In the mean time, 
 the (Quarter Sessions for the City and County o( Neiv-York, 
 coming in course ; and being still absolute strangers to the Con- 
 stitution of New- York ; and being ready to manifest their rea- 
 diness in complying with the Act of Toleration in all things : 
 They addressed Lord Cornlury by the following Petition. 
 
 To His Excellency, Edivard Viscount Cornburij, Captain 
 General & Governour in Chief, of the Province of New- 
 York, New-Jcrsei/s, and all the Tracts of Land depending 
 thereon in America, and Admiral of the same. The Hum- 
 ble Petition of Francis Makemie, and John HamiHon. 
 
 Most Humbly Sheweth. 
 ^V^Hat whereas Your Lordship is pleased not to allow our Cer- 
 -^ tificates from Courts of Record in Virginia and Maryland, 
 to reach to Your Excellency's Government; Therefore we being 
 Your Lordships Prisoners, must humbly pray ive may be admit- 
 ted in the Custody of the Sheriff, to apply our selves to the 
 C-luarter- Sessions, that we may there offer our selves to qualifi- 
 cation, as the Law directs, ivhich we are again ready to do ; 
 we being resolved to reside in Your Lordships Government : 
 And we Your Excellency's most humble Petitioners, and afflict- 
 ed Prisoners, as in duty bound, shall always pray. 
 
 And this being rejected, with severe ihreatnings against the 
 Messengers, for presenting a Petition without signing; they re- 
 solve to trouble liis Excellency with no more Petitions, and be- 
 ing called the Petition of Francis Makemie, and John Hamp- 
 ton, and writ by the hand of one of them, and not acquainted 
 with that practice of Signing all Petitions ; it was manifest it 
 came from them, and no other person. Next we addressed our 
 selves to the Quarter-Sessions then Sitting the 5th day of Fe- 
 bruari/, by the following Petition, to the same purpose. 
 
 To 
 
16 Mcikemies Try ah 
 
 To the Worshipful Justices of the Peace, now Sitting in 
 the Quarter-Sessions, for the City and County of JSew- 
 York. The Humble Petition of Francis Makemie, and 
 Johji Hampton. 
 
 Humbly Sheweth, 
 rw^Hat whereas your Petitioners, arc Protestant Ministers dis- 
 -*- senting from the Chxtrch 0/ England, who have Certificates 
 from Courts of Record, 0/ Virginia and Maryland ; certifying, 
 we have taken the Oaths, and 'performed all such qualifications, 
 as are required in on Act of Toleration, made in the first year 
 of the Reign of King William and ^ueen Mary, for liberty 
 of their Majesties Protestant and Dissenting Subjects; which 
 Certificates his Excellency Lord Cornbury is not 'pleased to 
 allow of, to extend to his Government. 
 
 We therefore your Worships humble Petitioners pray, ive 
 may be admitted to appear in the Custody of the Sheriff, at 
 the Bar of your Court, to qualifie our selves again, according 
 to the particular directions of said Act of Parliament, which 
 in obedience to the Laiv, tve are always ready to do: And yoiir 
 Worships humble Petitioners, as in duty bound, shall always 
 pray. 
 
 Francis Makemie. 
 John Hampton. 
 
 This Petition being presented, was viewed and handed about, 
 but never allowed a reading in open Court; ar,u Mr. Attorney 
 laying hold thereon, was putting it into his Pocket, asserting it 
 to be a Libel against Ld. Cornbury, and told the Justices, it 
 was none of their business to administer the Qualifications, or 
 to this efTect, 
 
 At the same time, a Certificate in writing was presented by- 
 two Inhabitants, for certifying the Dwelling-House of William 
 Jackson, where Mr. Makemie had Preached, desiring the same 
 to be put upon Record: And tho' the Court had these things 
 under consideration for two days, and put the presenters of 
 those Papers to the trouble of a second appearance, &, to biing 
 with them Law, for the Courts direction, all was rejected ; tho' 
 they had not long before Recorded a Quaker Meeting-House, 
 certifyed by two men, to the same Co^/i, upon the same Act 
 of Parliament. But for the information of all ; whatever offers 
 are made to any proper Court for qualification, where the Act 
 Toleration takes place, is a legal qualification in the eye of the 
 Law, tho' the Courts reject, and take no notice thereof. 
 
 And 
 
Miikemies Tryal. 17 
 
 And at leiigtii, some days before March Term, soon after the 
 arrival of the Chief Justice, Roger Moinpesnon Esqr, th'e Pri- 
 soners by their Lawyer, Mr. Keignicre presented to llie Chief 
 Justice, the following Petition, at his Chamber. 
 
 To the Honourable Roger Movrpesaon Esq. Cliief Justice 
 of this Her Majesties Province of Ncio-York. 
 
 May it please your Honour, 
 'E (he Subscribers being Prisoners detained in the Custody 
 of the Sherijf' of the City of New- York, by virtue of a 
 Warrant, whereof a true Copy is hereunto annexed ; Do most 
 humbly request your Honour, to award uid grant us Her Majes- 
 ties fVrit of Habeas Corpus, to be directed to the said Sheriff, 
 that we may be thereby brought before your Honour, or some 
 other Judge, in order to our Enlargement', according to Laiv. 
 He are your Honours most humble Servants. 
 
 Francis INlakemie. 
 John Hampton. 
 
 And after a due consideration of the Statutes in this case pro- 
 vided, the following Writ of Habeas Corpus was granted, and 
 the Prisoners were not without hopes to be discharged without 
 Bail, there being no crime nor suspicion of crime, specifyed in 
 our Warrant of Commitment. 
 
 ' A NNE, by the Grace of God, Queen of England, 
 ' -^ Scotland, France and Ireland, Defender of the 
 ' Faith, ^c. To the Sheriff of our City of New- York : 
 ' Greeting. We Command you, that the Bodies of 
 ' Francis Makemic and John Hampton, in our Prison, 
 ' under your Custody detained, [as it is said] under safe 
 ' and secure conduct, together with the day, and cause 
 ' of their Caption and detention, by whatsoever names, 
 ' the same Francis and John, may be reputed in the 
 ' same, you have before our trusty and well-beloved 
 • Roger Mompei on Esq. our Chief Justice of our Su- 
 ' prean^ Court of Judicature of our Province of New- 
 ' York, at his Chamber, Situate in Queens-street, in the 
 ' City of New-Ynrk, immediately after the receiving of 
 ' this Writ, to do, and receive all and singular those 
 ' things which our said Chief Justice, of him, shall then 
 ' and there consider in this behalf; and have you then 
 ' and there this Writ. Witness Roger Momvessen Esqr. 
 
 our 
 
18 Makemies Tryal. 
 
 ' our Chief Justice at New- York, this eighth day of 
 ' March, in the sixth Year of our Reign. Clark, 
 ' Octavo die Martij infra Script. Alio. 
 
 per me, Roger Mompessen. 
 
 The Execution of this Writ appears in the Schedule here- 
 unto annexed. Ebenezer Wilson, Sheriff. 
 A true Copy. George Clarke. 
 
 This Writ being put into the Sheriffs Hands on Saturday, 
 was not executed till Monday, in the Afternoon, at which time 
 the Sheriff told them, he had another Mittimus put into his 
 hands, wherein a supposed crime was specifyed, and only to be 
 detained, until discharged by due course of Law; and so were 
 oblio-ed to provide Securities: And as our Confinement was by 
 the former Mittimus, by a new Mittimus, our Imprisonment was 
 implicity adjudged and owned to be false Imprisonment for six 
 weeks and four days ; & the Sheritf in the presence of Dr. 
 John Johnstone, Mr. Regniere, and Mr. William Jackson, re- 
 fused to Execute the foresaid Writ, until they had paid him 
 twelve pieces of Eight, for their Commitment, and as much 
 more for the Return of the Writ of Habeas Corpus ; denying 
 also Receipts for said money when paid. 
 
 They were conducted the immediate day, before the Supream 
 Court, and upon their neiv Mittimus, contained in the follow- 
 ing Return, were obliged to enter Recognizance, with two Se- 
 curities, Doctor John Johnstone, and Mr. William Jackson, for 
 their appearance next day, at the Supream Court, and bound 
 not to depart, without the Courts leave. 
 
 The Return is as followeth. 
 
 ' T Ebenezer Wilson Esqr. Sheriff of the City and 
 ' -*- County aforesaid, to Roger Mompessen Esqr. Chief 
 
 * Justice of the Supream Court of Judicature, of the 
 ' Province of Neiv- York, at the time and place in the 
 
 * Writ to this Schedule annexed specifyed, do most 
 
 * humbly certifie, that before the coming of that Writ 
 ' to me directed ; the within named Francis Makemie 
 
 * and John Hampton, were committed unto the Goal 
 ' and Prison of our Lady the Queen of the City of 
 
 * New- York, under my Custody, by virtue of a certain 
 ' Warrant, under the Hand and Seal of Edivard Vis- 
 ' count Cornbury, Captain General, and Governour in 
 
 Chief 
 
Jlukemies Trijal. 19 
 
 'Chief of llie Province of jS'ew-York; bearing date, 
 ' the three and twentieth day cA January last past; the 
 ' tenour of which Warrant foUoweth in these words, 
 ' viz. You are hereby required and commanded, to 
 ' take into your Custody, the Bodies of Francis Make- 
 ' rnie &: John Hampton, and them safely keep, till further 
 ' Orders ; and for so doing, this shall be your sufficient 
 ' Warrant. Given under my Hand and Seal, this three 
 ' and twentieth day of January, 1706, 7. Cornhury. 
 ' To Ebenezcr Wilson Esqr. hii^h Sherifi' of the City 
 ' and County o^ New- York. And I do further Certifie, 
 ' that before the coming of said Writ to lue directed, 
 ' that the said Francis Makemie and John Hampton, 
 ' were committed afterwards by another Warrant, under 
 ' the Hand and Seal of his said Excellency, Edivard 
 ' Viscount Cornhury, Governour aforesaid ; bearing date 
 ' the eighth day of March instant, unto the Goal &i Pri- 
 ' son aforesaid, under my Custody; the tenour of which 
 ' Warrant also followeth in these words, (viz.) New- York. 
 < ss. You are hereby required & commanded to take into 
 ' your Custody, the Bodies of Francis Makemie hJohn 
 'Hampton, pretended dissenting Protestant Ministers, 
 ' for Preaching in this Province, without qualifying 
 ' themselves according to an Act of Parliament, made 
 ' at Westminster, ni the first year of the Reign of our 
 « late Soveraign Lord and Lady, King William, and 
 ' Queen Mary; and also without my Licence first 
 'obtained; and them safely to keep, till they shall be 
 ' discharged, by due course of Law; and for so doing, 
 ' this shall be your sufficient Warrant. Given under my 
 ' Hand and Seal, this eighth day of March, An. Dam. 
 ' 1706. Cornhury. To Ebenezer Wilson Esqr. High 
 ' Sheriff of the City and County of Neiv-York. And 
 ' this is the cause of the taking and detaining the Bodies 
 ' of the aforesaid Francis Makemie, and Johri Hamp- 
 ' ton; yet the Bodies of them the said Francis Make- 
 ' mie, and .John Hampton, before the said Roger Mom- 
 ' pessen, Esqr. Chief Justice as aforesaid, at the time 
 ' and place in the Writ aforesaid, specifyed, I have 
 ' ready, as it is in the said Writ commanded me. 
 A True Copy. George Clarke. 
 
 It is observable, the second Warrant is still granted, and sign- 
 ed by the Supream Authority, and without mentioning the 
 
 Queens 
 
20 Mahemies Tryal. 
 
 Queens Name or Authority : And the supposed Crime speci- 
 fyed is double; as I. Preaching in JVej<;- YorA: Government, 
 without complying with the qualifications of an Act of Parha- 
 ment, made the first year of King William <k. Queen Mary : 
 Whereas Ld. Cornbury had read in January, their Certificates 
 both from Virginia and Maryland, certifying their quahfication 
 according to said Act of Parliament. 2. Preaching without 
 Licence being first obtained of Lord Cornbury ; whereby it is 
 plain, that complying with the Law, is not sufficient without a 
 Licence : And from what goes before, it is undeniable, they 
 were qualifyed, and had complyed with the Law, even in New- 
 York Government, before the date of this last Warrant, and 
 that was by tendering themselves, not only to his Excellency, 
 but also to the Quarter Sessions, for qualification ; which is all 
 that any Dissenter can do, and all the Law requires of them to 
 be done : And such as had Licence, are not yet qualifyed ac- 
 cording to said Act of Parliament. For taking the Oaths 
 only before Ld. Cornbury, and taking them before a Court, are 
 not the same. But having related all the antecedents to the 
 Tryal, we are now arrived at the Tryal or Prosecution at the 
 Supream Court in March Term. 
 
 Supream Court, March the first Tuesday, 1706, 7. 
 
 Province of) 
 
 Neiv-Yorlc. 5 
 
 Present Roger Mompesson, Esqr. Chief Justice. 
 
 Robert Millward ) ^^ -, . 
 
 rri TJ7 7 • > Lsqrs. Justices. 
 
 I nomas Henham. y ^ 
 
 The Court being called formally, and the Docquet called 
 over, Francis Makemie, and John Hampton made their appear- 
 ance, and answered to their Names, according to the tenour of 
 their Recognizance. 
 
 The Defendants Recognizance ordered to 
 be filed, and the Defendants Appearance 
 Entered. 
 
 At the Attorney Generals motion, it is ordered, that the De- 
 fendants be continued on their Recognizance, and that they 
 attend the last day of the Term. 
 
 The Pannel of the Grand Jurors. 
 
 William Merrit. Ellas Boudmot. 
 
 William Anderson. Nathaniel Mastin. 
 
 Robert hurting. Francis Vincent. 
 
 Lawrence Reed. Lewis Carrcc. 
 
 Daniel 
 
Malt-emies Tryal. 21 
 
 5 Daniel Cromlinc. Lancaster Syma. 
 I Richard Socket. Adrian Hogland. 
 
 Beverle Laihom. Charles Wooley. 
 Johannis Hogland. Feter Rijclcman. j^/^^^^,,-, j^ 
 lienjanwi fVinrooj). ram JJrolet. ^ 
 
 Abraham Jeanneau. William Frovoost. 
 
 A Hue Copy. 6^60. Clarke. 
 
 Mr. Reignere, Attorney for the Defendant, moved, that the 
 Writ of Habeas Corpus, with all |3roceedings thereon, at the 
 Chief Justice his Chamber, might be Entered upon Record. 
 
 Mr. Attorney for the Queen, replied, it was not matter of 
 Record being obtained not in open Court, but at the Chief Jus- 
 tice his Chiimber, and returned to the same place, therefore 
 was not matter of Record ; so was put ofi' for that time. 
 
 IVcdnesday the Second Day of tlie Term. 
 The Honourable, Roger Mompesson, Chief Justice, finding 
 the Writ of Habeas Corpus, and former proceedings thereon, 
 was matter of Record, gave in the following Memorandum to 
 the Court to be Entered. 
 
 Supream Court. 
 iVew;- York. ss. 
 
 Memorandum, That at tlie Supream Court of this 
 Province, held at the City o{ Neiv-York, the second Tuesday 
 in March, in the Sixth Year of Her Majesties Reign ; Roger 
 Mompesson Esqr. Chief Justice of this Province, delivered 
 unto the said Supream Court, a certain Record, the tenour 
 whereof followeth in these words. 
 
 New-York. ss. To the Supream Court of the Province of 
 Neiv- York. 
 'T I^oger Mompesson; Chief Justice of the said Court, do 
 ' -*- hereby Certifie, That upon the eighth day of March in- 
 
 • stant ; That upon a Petition, Signed by Francis Makemie, and 
 ' John Hampton, then delivered unto me : I granted and allow- 
 ' ed the Writ of Habeas Corpus hereunto annexed ; which being 
 < returned unto me, at my Chamber, in the said City o( New- 
 ' York, by Ebenezer Wilson Esqr. Sheriff of the said City &; 
 
 * County of New-York, the tenth day of this instant Month of 
 ' March, with the Bodies of the said Francis Makemie, and 
 ' John Hampton, together with the Causes of their Commit- 
 ' ment hereunto annexed; whereupon I did at the day and 
 ' place last mentioned, discharge the said Francis Makemie, 
 
 and 
 
22 Makemies Tiyai 
 
 ' and John Hampton, from iheir several Imprisonments, taking 
 ' the several Recognizances hereunto annexed. 
 
 Roger Mornpesson. 
 
 Nevv-NorU. ss.]*>/| Emorandum, On the IQthcIay 0/ March, in 
 ^^ the Sixth Year of the Reign of our So- 
 veraign Lady ANNE, by the Grace of God, of 
 England, Scotland, France and Ireland, Q^ueen, 
 Defender of the Faith, he. Came before me, 
 Roger Moiupesson Esqr. Chief Justice of New- 
 York, Francis Makeniie 0/ &ic. John Johnstone, 
 of the Province of New-Jersey, Gent. «nt/ Wil- 
 liam Jackson, of the City of New- York, Cord- 
 wainer, and acknowledged themselves severally 
 to be Indebted to Our Soveraign Lady the 
 Queen, as folloivs, viz. the said Francis Make- 
 mie, in the Sum of Forty Pounds, Currant 
 Money of this Province: and the said John 
 Johnstone &f William Jackson, z'n Twenty Pounds 
 like Money each, to be levied on their Goods 
 and Chattels, Lands ^ Tenements, if failure be 
 made in the Condition Endorsed. 
 
 Roger Mornpesson. 
 
 'HE Condition of the within written Recogniscance is 
 such, That if the sa.\(\ Francis Makeniie do personally 
 appear before Her Majesties Justices of the Supreara Court 
 of Judicature, to be held for this Province at the City of 
 JSeiv- York, on the morrow of this Day, being Tuesday the 
 Eleventh Day of March instant ; there to answer all such 
 matters and things as shall be objected against him, and 
 shall not Depart witl)out leave of the said Court, then the 
 said Recogniscance to be void. 
 
 Vera Copia. George Clarke. 
 
 The Grand Jury being called and Sworn the first day of the 
 Term ; and tho' there was little besides this matter given to 
 them in Charge, yet after sundry debates, several Meetings and 
 Adjournments, found the following Presentment against Francis 
 Makcmie; the Queens Attorney, for Reasons best known to 
 himself, gave nothing to the Grand Jury against John Hamp- 
 ton, who was dropt out of the Prosecution ; tho' both equally 
 guilty of the same Crime, of Preaching a Sermon in the Go- 
 vernment of New- York, and suffered equally by Imprisonment ; 
 from which both were Relieved by the former Writ of Habeas 
 Corpus. 
 
 And 
 
 'J'l 
 
Makemies Trijal. 23 
 
 And to such as knew the Grand Jury, when called and sworn, 
 they plainly appeared to be Chosen on purpose to find the Pre- 
 sentment, for some of them had never been upon a Grand Jury, 
 others not for sundry years, and sundry of tliem Justices of the 
 Peace, who at the Quarter Sessions had so far prejudged them 
 and their Cause, as ihey refused to allow their Petition a pub- 
 lick reading, or take the least notice of the Certification of a 
 House ofl'ered to Record at the same time, by two of the Inha- 
 bitants of York, and one of them threatened as to his Trade 
 and Business, as appearing to countenance such a design: Yet 
 with hard strugling, twelve was influenced, and the two last 
 who made up the number, were persons of Dissenting Congre- 
 gations from the Established Church of England, and their 
 Teachers as liable to be prosecuted, as those Gentlemen, and 
 as guilty of the same, or like Presentment. One Daniel Crom- 
 Vne, a French Refugee, dragoon'd out of France for the same 
 Protestant Religion and Perswasion, and Adrian lloglnnd, of 
 the Dutch Congregation, whose Minister has yet no Licence, 
 being a new made Lieutenant to a Troop : After four of Mr. 
 Malcemie^s Hearers, Capt. John Thooholds, Mr. John Vanhorn, 
 Mr. Anthony Young, and Harris, Coachman to Lord Corn- 
 bury, being Subpiena'd, gave Evidence upon Oath, they heard 
 no unsound Doctrine, nor any thing against the Government ; 
 and one of the Evidences delivered to the Jury, the Act of As- 
 sembly o( New- York, for Liberty of Conscience to all, except 
 Papists, and shewed to them Mr. Makemie^s Certificate from a 
 Court of Record from Virginia, of his compliance with the 
 Qualifications of the Act of Toleration ; they notwithstanding at 
 length consented to find the Indictment ; whose Votes were, on 
 Friday in the Afternoon, taken in a new and unusual method, 
 as they came in one by one from Dinner. 
 
 Fry day the First Term. 
 The Grand Jury find the following Bill, which is ordered to 
 be filed. 
 
 Of the Tern of March, in the Sixth Year of the Reign 
 of our Soveraign Lady ANNE, over England, &;c. 
 (^ueen. 
 
 City of New-York. 
 
 < nnHe Jurors for our Soveraign Lady the Queen, upon their 
 ' ■'- Oath do Present, That Francis Makemie, late of the Pro- 
 ' vince of Virginia, Gent, pretending himself to be a Protes- 
 
 * tant 
 
24 Aliikemies Trijal. 
 
 tant Dissenting Minister and Preacher, and contemning and 
 endeavouring to subvert the Supremacy, Jurisdiction and Au- 
 thority of our now Lady the Queen, in Ecclesiastical affairs, 
 the two and twentieth day of January^ in the Fifth Year of 
 the Reign of our Soveraign Lady ANNE, over England, 
 ^'C. Queen, at the City of New- York, aforesaid [to wit] at the 
 Southward of the said City, did privately and unlawfully, take 
 upon him to Preach and Teach, and did Preach and Teach 
 diverse of Her Majesties Liege Subjects, within the said City 
 [to wit] at the Dwelling-House of one fi'illiam Jackson, 
 situate in the Ward aforesaid, privately and unlawfully, then 
 and there meet, and assembled together, to above the number 
 of five persons at one time, under the pretence of Divine 
 Worship, without any leave or Licence by him, the said 
 Francis, first had, and obtained, according to Law for the 
 same, in great derogation of the Royal Authority and Prero- 
 gative of our Lady tlie Queen, and to the evil Example of all 
 others, in the like case offending against the Peace of our Lady, 
 the Queen, Her Crown and Dignity. And the Jurors afore- 
 said, upon their Oath aforesaid, do further present. That the 
 said Francis Alakemie afterwards [to wit] the aforesaid two 
 and twentieth day of January in the year aforesaid, at the 
 City and Ward aforesaid, at the aforesaid Dwelling-house of 
 the said IVilliam Jackson, did privately and unlawfully assem- 
 ble, and gather together diverse of Her Majesties Subjects un- 
 known, did then, and there voluntarily, and unlawfully, use 
 other Rites, Ceremonies, Form and Manner of Divine Wor- 
 ship, then what are contained in a certain Book of Common- 
 Prayer, and Administration of the Sacraments, and of other 
 Rites and Ceremonies of the Church of England, against the 
 Form of the Statute in that case made and provided, and 
 against the Peace of our said Lady the Queen, Her Crown 
 and Dignity. And the Jurors aforesaid, do further present, 
 that the said Francis Makemie afterwards [to wit] the two 
 and twentieth day of January, in the fifth Year aforesaid, be- 
 ing then, and now is a person, not qualifyed by Law to Preach, 
 Teach and Officiate in any Congregation or Assembly for Re- 
 ligious Worship at the City aforesaid [to wit] at the Southward 
 of the said City, at the aforesaid Dwelling-house, of the said 
 Jfilliam Jackson, situate in the said Ward, did take upon him 
 to Preach, Teach and Officiate, & then and there did Preach, 
 Teach and officiate, in a Congregation, Assembly, Con- 
 venticle &, Meeting not permitted, or allowed by Law, 
 under colour or excuse of Religion, in other manner then ac- 
 
 * cording 
 
Mahemies Tryal. 25 
 
 ' cording- to the Liturgy, and practice of the Church of Eng- 
 ' land, &fc. At which Conventicle, Meeting and Assembly, 
 ' were five persons or more Assembled together, against the 
 ' Form of the Statute, in that case made and provided against 
 ' the Peace of our Lady the Queen, Her Crown and Dig- 
 * nity, ^c. 
 
 A true Copy. George ClarJc, Seer, 
 
 Here is a Presentment for Preaching a Sermon at York, 
 highly aggravated into a Cumulative Crime, and thereby the 
 Grand-Jury, led into no small mistake, in point of time ; for it 
 is said to be Preached on the two and twentieth day of January ; 
 whereas it was preached on the twentieth o[ January : for these 
 two Ministers were Lord Cor}iburij's Prisoners, apprehended on 
 Long- Island, on the two and twentieth day instant, by a War- 
 rant, dated the one and twentieth day: Which error was cause 
 enough in point of Law, for overthrowing the whole Present- 
 ment, which was so delayed and put off to the last day of the 
 Court, that a Tryal could not be obtained that Court : There- 
 fore Mr. Reignere, the Defendants Council made a motion, 
 that the Defendants appearance be put upon Record, and it 
 was ordered the Defendant be continued on his Recognizance, 
 until the next Term : Mr. Makemie being the only person pro- 
 secuted, returns for Virginia, and returns again before June 
 Term, the third of said Month. 
 
 Tuesday, the third day of June, 1707. 
 
 Province of 
 
 NeiV' York. Present Roger Mempesson Esqr. Chief Justice. 
 
 Robert Milivard ) j^, t ^. 
 
 rni TT/ 7 > Lsnrs. Justices. 
 
 Ifiomas ncnnam ) '■ 
 
 The first day of the Term. 
 
 The Defendants Appearance is entered, 
 
 and he is ordered to be continued on his 
 
 Recognizance. 
 
 The Defendant ordered to plead to 
 
 morrow. 
 
 Wednesday, June 4th. 
 The Defendant pleads not Guilty of any Crime, by Preach- 
 ing a Sermon at York. 
 
 The Attorney General for the Queen moves to know, if they 
 would allow a Copy of the Queens Instructions to the Go- 
 vernour, Signed by his Excellency, to be brought into Court, 
 
 in 
 Vol, IV.— No. 4. 14 
 
26 Makemies Tryal. 
 
 in Evidence at the Tryal, seeing his Excellency, who had the 
 Originals, was then in the Jerseys. 
 
 The Defendant replied, they could admit of no Copies, see- 
 ing there was time enough to have produced the Original ; or 
 Mr. Attorney might have compared the Copy with the Origi- 
 nal, and might have been able to give his Affidavit to the truth 
 of said Copy ; but perceiving if that Copy was not allowed of, 
 the Queens Attorney w'ould put off the Tryal till another 
 lime. 
 
 Therefore Mr. Attorney General for the Queen, h Mr. fVil- 
 liam Nicoll for the Defendant, agrees, that the Copy of such 
 Instructions from Her Majesty to the Governour, as shall be 
 produced by the Attorney General, and Signed by the Govern- 
 our, shall be admitted on Tryal, to be the same in Evidence, as 
 if the Original Instructions were produced. F. M. Defendant 
 moved, that if allowed in Evidence, he might have a Copy of 
 said Instructions ; and further declared, he could not but wonder, 
 of what Service these Instructions which were no Law, could 
 do to Mr. Attorney, seeing the Presentment run upon Statutes 
 and Acts of Parliament, and they expected to have a Tryal 
 before a Court, who were Judges of Law, and not of private 
 Instructions. 
 
 Friday, June 6th. 1707. 
 
 The Petty Jury called, whose names follow according to the 
 Pannill, and twelve of them Sworn to try the matter in issue, 
 and the Defendant told the Court, he was under great disad- 
 vantage, being a Stranger, and knew neither names nor faces ; 
 And tho' he knew he had not liberty in that cause, of peremp- 
 tory objections against any, without showing sufficient ground 
 of exception ; but he was informed of one, Mr. Elias Neau, 
 who had in discourse to Mr. Anthony Toung, prejudged the 
 Cause, by condemning him for Preaching a Sermon, and justi- 
 fyed Lord Cornbury^s proceedings against him ; which being 
 proved by the Deposition of said Yoitng, was approved of by 
 the Judge, as a good objection in Law. The Defendant further 
 adds, he was amazed to find one who was so lately dragooned 
 out of -France, for his Religion, and delivered out of the Gal- 
 leys, so soon prove a Persecuter of the same Religion, for 
 Preaching a Sermon in this City. 
 
 The Jurors being Sworn, you may take their Names follow- 
 ing. 
 
 John Shepherd Foreman Andreiv Lauron 
 Thomas Ivcs Ihimphrey Perkins 
 
 Joseph 
 
Malicmies Tryal. 27 
 
 Joseph Wright William Horsuell 
 
 Thomas Woorden Thomas CarrcU. 
 
 Joseph Robinson Thomas Baynex. 
 
 Bartholomcxo Larouex Charles CromUne. 
 
 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 Co[)y was 
 denied again and again to the Defendant, yet by a Copy of In- 
 structions from King IVilliam to a former Governour, the same 
 Instructions were found, in the same words; and as they were 
 in two Paragraphs in the produced Cof)y, so they were found 
 at a great distance from one another in the former Copy, sup- 
 posed to bo 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 INlinisters of the Church of 
 England, as may plainly appear from the Instructions them- 
 selves in the following words. 
 
 And you are to permit a Liberty of Conscience to all Per- 
 sons (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 yermit any Minister coming from England, 
 to Preach in your Government, without a Certificate, 
 from the Bight Reverend, the Bishop of London : Nor 
 any other Minister, coming from any other part or place, 
 ivithout first obtaining leave from you, our Governour. 
 
 Mr. Attorney Orders four of Mr. MaTcemies 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. 
 
28 Makemies Tryal 
 
 Mr. Auorney. You own, thai you Preached a Strmon, and 
 Baptized a Child at Mr. William Jacksons. 
 
 F. M. Yes, I did. 
 
 Mr. Attor. Hoio many Hearers had you? 
 
 F. M. I have other work to do, Mr. Attorney, then to num- 
 ber my Auditory, when 1 am about to Preach to them. 
 
 Mr. Attor. Was there above Jive hearing you 1 
 
 F. M. Yes, and five to that. 
 
 Mr. Altor. Did you use the Rites and Ceremonies enjoined 
 by, and prescribed in the Boole of Common Prayer, by the 
 Church of England ? 
 
 F. M. No, 1 never did, nor ever will, until 1 am better satis- 
 fied in my Conscience. 
 
 Mr. Attor. Did you ask leave, or acquaint my Lord Corn- 
 bury ivith your Preaching at York, when you dined with him 
 at the Fort 1 
 
 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 de- 
 sign 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 Gos- 
 pel, 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 1 
 
 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 Preach- 
 ing 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 pri- 
 vate 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 Do- 
 minion of England. And from thence asserted the Queens 
 Supremacy in Ecclesiastical Affairs, and over Ecclesiastick per- 
 sons ; which Supremacy was by a Delegation lodged in his 
 
 Excellency 
 
Makcmies Tvyah 29 
 
 Excellency our Governour, which he is swoin to exercise ; and 
 this is signified to him by Her Majesties Instructions, which 
 were read in Court. Tlien he proceeded to produce, and read 
 as much as was necessary, of those Statutes of Queen Eliza- 
 beth, and King Charles the Second, For Umformity of Wor- 
 ship 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 Gentle- 
 men of the Jury, and says, the matter of fact is plainly confess- 
 ed 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. Reigncre, Attorney for the Defendant, pleads against 
 Mr. Attorney for the Queen, as followeih : 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 Autiiority 
 in Ecclesiastical Affairs ; did privately and unlawfully Preach 
 and Teach, at William JacJcsons House, diverse Subjects, pri- 
 vately 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, h 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 o( England: Cont. Form. Stat. 
 
 3. That being not qualifyed by Law to Preach and Teach 
 in a Congrcgaiion or Meeting not allowed by Law, in other 
 manner then according to the practice of the Church of Eng- 
 land ; 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, must 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 govern- 
 ed by, and subject io these three sorts of Laws: 1. The Com- 
 mon 
 
30 Mahemies Tryal. 
 
 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 de- 
 pending 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 Latv, 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 Ordi'- 
 nance 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 
 may 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 en- 
 join a due observance of the Rites and Ceremonies of the 
 Church oi 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 Jam.cs, C. 4, &f 5. But all these were pointed 
 and levelled at Romish Recusants only, tho' sometimes miscon- 
 strued to extend to others; also 35 Eliz. C. 1. forbidding all 
 Meeting &; Conventicles, under penalties of abjuration & pub- 
 lick 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 ; bu: on the contrary, a Law formerly 
 made in this Province, and in Print, allowing Liberty of Con- 
 science, which I here insert in the following words. 
 
 The 
 
Makemies Tiyal. 31 
 
 The last Clause of an Act of Assembly, made in the 
 Government of New- York, declaring the Rights, and 
 Priviledges of the Subject. 
 That no person or persons, which profess faith in God, by 
 Jesus Christ, his only Son, shall at any time be any way molest- 
 ed, punished, disturbed, disquieted, or called in question, for 
 any difference in opinion, or matter of Religious Concernment, 
 ivho do not under that pretence disturb the civil peace of the 
 Province, he. And that all and every such person and persons, 
 may from time to time, and at all times hereafter, freely have, 
 and fully enjoy, his or their opinion, perswnsion and judgment, 
 in matters of Conscience and Religion, throughout all this Pro- 
 vince; and freely meet at convenient places, within this Pro- 
 vince; and there iVorship according to their respective perswa- 
 sions, ivithout being liindred or molested, they behaving them- 
 selves 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 
 IVorship, contrary to the Laws and Statutes of Their Majes- 
 ty'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 pro- 
 duced, 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 fyHliam and Mary, of Toleration ; but as we say, 
 the Pasnal Statutes did not extend hither, so is there no occa- 
 sion of Toleration. The Laws and Statutes of England by 
 their own force, extend equally to all Plantations of England 
 alike ; and if these Painal Laws did extend to the Plantations, 
 the Crown of England, would never Tolerate the Governments 
 o( Boston, Rhode-Island, Connecticut, and others; who in their 
 Church-Discipline are so far from Conforming to the Ciiurch 
 o( England, that they have Set up and Established another sort 
 of Church-Discipline universally among them; but notwith- 
 standing this, they are allowed the liberty they always used in 
 their Church without molestation, and were so allowed in the 
 very time when these Piunal Laws were in force in England; 
 but now since by the late Act of Toleration, it was thought by 
 
 the 
 
32 Makemies Try ah 
 
 the wise and experienced Legislators of England, to be for the 
 PuhlicTc 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 Paenal Statutes, so 
 repealed, are, or can be for the Puhlick 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 ex- 
 press Law of this Province doth allow it, as hath been shewen) 
 and that the Paenal Laws and Statutes of England against Dis- 
 senters, can by no reasonable construction, be extended hither, 
 1 humbly conceive my Client is not guihy of any offence against 
 Law, and hope the Jury will acquit iiim accofdingly. 
 
 Mr. WiUiam 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 Au- 
 thors, 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 Imprison- 
 ed for it, but they were curious to hear again, jIc/. 17. concern- 
 ing 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 ob- 
 structed 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 
 BtnvicTc on Tivecd, so have no relation, to, nor reach to any 
 of the Plantations. 
 
 And this h fuithpr manifest, from the Constitution of the 
 
 Plantations 
 
Makemies Trijal. . 33 
 
 Plantalions, being. as it were settled by National Consent, for 
 those whose thouglits in Religious Afiairs could not square with 
 the Publick Establishment in Church Government, Discipline 
 and Ceremonies, as Neio- En gland for Indepcndants and Pres- 
 byterians, Rhode-Island and Netv-Jerseys, and we may add 
 ]\ew- York, for the several sorts of Dissenters in general ; Pen- 
 silvania 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. fVilliam &i l]Jary. 
 
 And it is already evidently proved, that the Acts of Assem- 
 bly o[ ]Se2v-Yo7-k, allow Liberty of Conscience, with freedotn 
 of Publick Worship, to all but Papists. 
 
 What was offered on the other side, by Mr. Attorney, as be- 
 ing against the Queens Prerogative in Ecclesiastical Affairs, was 
 foreign, and not at all to the purpose ; for all the Statutes rela- 
 ting 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 Se- 
 cular Power. 
 
 And as to the Queens Instructions, tliey 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. Reignerc, and Mr. JSicol. Attorneys on the same side, 
 having offered so many and large Arguments, have left but lit- 
 tle 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 Prea- 
 ching, 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 i? that which gives the finishing 
 
 stroke 
 
34. Makemies TryaL 
 
 stroke to a Law. Nor do 1 see how his Lordship should be- 
 come 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 pro- 
 duced, 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 Para- 
 graph is negative : You are not to permit any Minister coming 
 from England, to Preach in your Government, ivithout a Cer- 
 tificate from the Right Reverend, the Bishop q/" London; wo?" 
 any other Minister coming from any other Part, or Place, with- 
 out first obtaining leave from you our Governour. And a Dis- 
 senting Minister Preaching here without the Governours know- 
 ledge, 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 Sta- 
 tutes, and could not any way reach these Plantations ; for here 
 in New-York we iiave no Established Religion for the whole 
 Province. On the East-end of JSassaiv, 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 Re- 
 ligion ; 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 o{ Berivick upon Tweed ; and therefore the using of 
 any other Form of Worship in this Province, then what is con- 
 tained in the Common-Prayer, cannot be a Breach of those 
 Statutes. Then again the 16 of Ch. 2. for suppressing Con- 
 venticles, 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 Sta- 
 tute ; 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 
 
JIakemics Trijal. 35 
 
 Plantations generally, especially in this Province, altlio' there 
 be no locality expressly iiientioned therein, and that lor these 
 Reasons. The title and whole design of it is Toleration ; now 
 Toleration is an exception from some restraint ; and since the 
 Pa^nal 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 Assem- 
 bly 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 insert- 
 ed in it, as should secure the Liberty of the Dutch and French 
 Congregations from our Successors ; and in an Act of Assem- 
 bly made since, for its encouragement, the like care and pre- 
 caution 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 depo- 
 pulate and weaken our Strength, and discourage all such Ad- 
 venturers 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 de- 
 fence, the following Arguments, which I publish in his own 
 words. 
 
 jP. M. I am amazed to find Mr. Attorney so much changed 
 in his opinion ; for when I was before my Lord Cornhury, who 
 told us, the Act of Toleration was limited and local, and ex- 
 tended 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 P;enal Laws of England, did not extend to the Plan- 
 tations, 
 
36 Makemies Tryal. 
 
 tations, and the Act of Toleration was made to take off the 
 edge of the Peenal Laws ; Therefore the Toleration does not 
 extend hither ; but we find soon after by an Indictment, both 
 the Pasnal Laws and Toleration reaches hither, and ail their 
 penalties too. 
 
 The Honourable Chief Justice, Roger Momjpesson Esqr. in- 
 terrupted the Defendant, by saying: Gentlemen, Do not trou- 
 ble 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, 1 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. r^Od the Supream Lord and King of all the World, 
 ^-^ hath Ordained fiivil 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 ivell, and for the punishment of evil-doers. 
 3. The Civil Magistrate may not assume to himself the 
 Administration of Word and Sacraments, or the jjoiver of 
 the Keys of the Kingdom of Heaven ; yet he hath Au- 
 thority, 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 Here- 
 sies be suppressed, all corruptions and abuses in Worship 
 and Discipline, prevented and reformed ; and all the Or- 
 dinances of God may he settled ; for the better effecting 
 ij'hereof he hath poiver to call Synods to he present at 
 
 them, 
 
Makemies Tryal. 87 
 
 them, and to provide thai luhaisoever is transacted in them, 
 be according to the Mind of God. 
 
 4. It is the duty of People to Fray for Magistrates, to 
 honour their Persons, to obey their laivful Commands, and 
 to be subject to their Authority, for Conscience sake : In- 
 fidelity or difference in Religion, doth not make void the 
 Magistrates just and legal Authority, nor free the people 
 from their due Obedience to him ; from ivhich Ecclesiasti- 
 cal Persons are not exempted: much less hath the Pope 
 any power or Jurisdiction over them, in their Dominions, or 
 over any of their peoyle, and least of all to deprive them 
 of their Dominions or Lives, if he shall judge them to be 
 Hereticks, or upon any pretence whatsoever. 
 
 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 obhgation 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 
 bear 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 Instruc- 
 tions 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 1 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 
 
38 Makemies Tryal. 
 
 this Instruction, and no other ; and if this permission is grant- 
 ed 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 distinct 
 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 con- 
 cerns 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 o{ England, who by their Constitu- 
 tion, are under strict obligations to take Licence, or Certificate 
 from their Ordinary, and such as come to the Plantations, 
 acknowledge the Bishop o{ London as such ; and no Dissenter, 
 either in England, or anywhere 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 has of late been 
 erected, and forced into practice at New-York : For if our Li- 
 berty 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 Plan- 
 tations of America; as Mr. Sharp now Chaplain at Fort- Anne, 
 
 came 
 
Alakemits Tryal. 39 
 
 came not diieclly Iroiii England, but from MaryUmd : And I 
 must confess, he 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, if 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 requir- 
 ing Dissenters to take any Licence, or empowering Govcrnours 
 of the Plantations to grant them, whicli 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 Sub- 
 ject to Obedience, or render him culpable for Disobedience, 
 seeing Piomulgation, which is the Life of the Law, and ren- 
 ders 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 culpa- 
 ble hereby, being neither inconsistent with the Queens In- 
 structions, and not against any Law. 
 
 And as to the last part of the Indictment, concerning the 
 Pffinal Laws, or the sundry Statutes against Conventicles, they 
 never were designed, nor intended by our English Legislators 
 (or America, or any of the Plantations thereof; for they are 
 limited &i local Acts, all of them restricted to England, Wales, 
 and Berwick upon Tioeed, as is manifest 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 Bertvick 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 Cliurch of England has a full and 
 formal Establishment. But which is more, even Boman Ca- 
 iholicks, who are excluded from all benefit of the Act of Tolera- 
 tion in England ; yet cannot be touched in America, by these 
 Paenal Laws; for it is matter of fact known to all, and I appeal 
 to Mr. Beignere if Papists have not liberty, and the exercise 
 of their Religion, without molestation from Paenal Laws, and 
 even in Maryland, where the Church of England has a formal 
 
 establishment 
 
40 Makeinits Tryal. 
 
 eslablishmeiil by Laws made there : And it is manifestly know4i, 
 the Assembly of Maryland made a late Act against Roman Ca- 
 thoUcks; and tho' it was never executed, not being approved of 
 by the Queen, yet it is a plain demonstration, if the Pcenal Laws 
 of England originally and principally designed against Popish 
 Recusants had extended to the Plantations, there would have 
 been no need for such an Act of Assembly to be made against 
 them in Maryland. 
 
 It is a further argument the Psenal Laws never did extend to 
 the Plantations, because it was a penalty in some of them, that 
 persons after sundry and so many convictions, are to be banish- 
 ed or transported to {he Americati Plantations, as places removed 
 beyond, and free from the lash of Paenal Laws ; for to what 
 purpose would their banishment be, if after a removal from their 
 Native Land, they should be lashed, or ruined afresh by the 
 same Paenal Laws. 
 
 And if the Paenal Laws of England do not extend to these 
 Plantations, where the Church of England has a legal and 
 formal Establishment, it cannot be imagined, they can take 
 place where there is no particular Perswasion established by 
 Law ; and consequently all Perswaslons there are upon an equal 
 bottom of Liberty, as 1 find to be the Case with Neiv-York, 
 where there is not one Act of Assembly, wherein the name or 
 manner of Worship as it is in the Church of England is so 
 much as expressed : And where there is no legal Establishment 
 or any penalties or restrictions on the Liberty of any Dissenters, 
 there is no room for, or need of any Toleration ; for where no 
 penalty, what must we be tolerated from ; but pure nullities, or 
 nothings, which seems inconsistent with the thing itself: There- 
 fore in New-York Government all Perswasions there are upon 
 an equal level, and bottom of liberty ; and this confirmed to all 
 Dissenters, except Papists, and allowed by an Act of Assembly, 
 already read in open Court. And if Jews, who openly blas- 
 pheme the Lord Jesus, Quakers and Lutherans, and all other 
 or most perswasions are allowed even in this Government ; it is 
 matter of wonder, and I can know no reason, why we only 
 should not be allowed of, but put to molestation as we now are, 
 by my present prosecution : Is it because we are Protestants ? 
 Is it because we are likest the Established Church of England 
 of any Dissenters ? Is it because we are the most considerable 
 Body of Protestants in the Queens Dominions? Is it because 
 vye have now since the Union, a National Establishment in 
 Great Britain, as nighly related and annexed unto the Crown 
 of England, as the Church of England themselves ? Sure 
 
 such 
 
Makemies Tryal. 41 
 
 such Proceedings, when known, will and must be a prodigy to 
 England. 
 
 Mr. Attorney replied, it was impossible for any man to an- 
 swer all which was offered, there was so much delivered, and 
 by so many. 
 
 Tlie Defendant told Mr. Attorney, he verily believed it was 
 impossible for Mr. Attorney to answer what was said, and that it 
 was a great truth Mr. Attorney asserted. 
 
 Mr. Attorney proceeds to answer, and says : These Gentle- 
 men on the other side assert all the Pcenal Laws of England 
 are local h limited to England, Wales, and Berwick upon 
 Tweed ; but 1 shall produce one that is not so, but extends to 
 all the Queens Dominions ; and that is the Act of Uniformity, 
 made the first of Elizabeth, which is demonstrated from the 
 very words of said Law, or other place within this Realm of 
 England, Wales, and the Marches of the same, and other the 
 QUEENS Dominions: And flies to the Instructions again, 
 and endeavours to assert and vindicate the Supremacy, and 
 says, the Kings and Queens of England, Enjoin and Command 
 their Governours to grant Licences ; and it has always been 
 customary, and an universal practice to take Licences from Go- 
 vernours : And those Ministers who come from other places, 
 must be the same that my Ld. is to allow Liberty of Con- 
 science unto. 
 
 The Defendant begged leave to answer the Attorney as to 
 his last Argument, as to the first of Elizabeth, which is the Act 
 of Uniformity ; we acknowledge it was extensive to the Queens 
 Dominions in general, and not limited to England, and Wales 
 only ; yet I hope to make it appear, this Act does noway affect 
 the Plantations, and far less affect Dissenters ; therefore is alto- 
 gether foreign to our present purpose. For \. That Act of 
 Parliament was made in the first year of the Reign of Eliza- 
 beth, and consequently before any Plantation had a being, or 
 was thought of, and so could have no relation to them at all, 
 they being pure non-entities at that time. 2. All over the Act, 
 and in sundry places thereof, it is directed to Ministers, Parsons 
 or Vicars in Cathedrals, Parish-Churches, Private Chappels, or 
 Oratories; and not a word in the whole Act of Dissenters or 
 Conventicles. For 3. At that time, when this Act was made, 
 there were not strictly and properly speaking, any number of 
 Dissenters in England, who held Separate Meetings from the 
 Publick and Established Worship ; for tho' there were those in 
 the Church of England, who always from the beginning of the 
 Reformation scrupled the use of all the Common Prayer, and 
 
 omitted 
 Vol. IV.— No. 4. 15 
 
42 Makemies Tryal. 
 
 omitted some Ceremonies, which was, and is to day, the 
 grounds of the Separation ; and it was to oblige such to an 
 tlniformity in Publick Worship. And as soon as the Act was 
 made, and put in Execution, with all its penalties, many were 
 discouraged, others Cast out of the Church, for Nonconformity ; 
 and this really made the Separation, and all the mischiefs of the 
 Separation are originally owing to this Act ; tho' as soon as the 
 Separation was made, they could not touch Dissenters by the 
 penalties of this Act, therefore were under a necessity of making 
 new Acts of Parliament in the following Reigns, for punishing 
 Separated Dissenters; all which were limited and local in ex- 
 press words ; and never designed to pursue Persecuted Persons 
 to an American Wilderness. 4. I am able to make it appear, 
 if this Act of Uniformity were strictly put in Execution, the 
 most of the Clergy of the Church of England, would fall un- 
 der its lashes and penalties ; for none of them are to use any 
 other Rite, Ceremony, or open Prayer, but what is mentioned 
 and set forth, in the said Book of Common-Prayer. And it is 
 well known, the most valuable men in that Church use another 
 Publick Prayer, then is in Common Prayer, and all such per- 
 sons are so far Dissenters, and being in Communion with the 
 Church o{ England, are only liable to be Prosecuted upon this 
 Statute. 
 
 And as to the Queens Instructions, which Mr. Attorney in- 
 sists so much upon, it was, and is obvious to every man, they 
 were two distinct Instructions; and tho' we have them placed 
 so near in this Copy, they have no affinity one to another ; and 
 it is not fair for Mr. Attorney to take the latter clause of one 
 Instruction, and join it to another, which was before ; this is a 
 Curtailing the Queens Instructions : whereas those who com- 
 posed them, knew belter how to join them together, then Mr. 
 Attorney does. 
 
 And whereas IVlr. Attorney affirms, that giving and taking 
 Licence was very common and universal ; I am well assured 
 there never was, neither is to this day any such practice in any 
 Plantation of America ; and there were but few persons, as yet 
 in York Government that had Licences; for besides the two 
 Dutch Ministers, who differ upon Long-Island, and it is said 
 Licences are the cause of their difference ; there is but one 
 English Nonconformist Minister, in all the Government, who 
 has taken a Licence ; and it is as certain, Mr. Dubois, and sundry 
 others of the Dutch Churches has no Licence, neither will sub- 
 mit to any such as are granted. 
 
 Mr. Attorney perceiving how matters then stood, moves that 
 
 the 
 
^lalicmies Tryal. 43 
 
 the Jury sliould bring in a special Verdict, and tlie Judges in- 
 clined thereunto; for says Mr. Attorney, the matter of fact is 
 plainly confessed by the Defendant, as you have heard, and you 
 are to brins; it in specially, for you are not Judges of Law. 
 
 F. M. I\lay it please your Honours, I am a Stranger, who 
 live four hundred miles from this place, and it is known to the 
 whole Country, what intollerable trouble I have been put to 
 already, and we cannot consent to a special Verdict, for that is 
 only to encrease my trouble, muliiply my Charge, and give me 
 further delay: And it is a known truth in Law, that Sirangers 
 are to be favoured always with expedition in Justice, and does 
 no way approve of delays; and if this should be allowed of, no 
 mans innocence is able to protect him ; for if I am cleared, I 
 should suffer more in Charges at last, then if 1 were really 
 guilty of the breach of many Pa?nal Laws of England: And 
 as to the Juries judging of Law, and confessing the fact, I can- 
 not see one point of the Law to be judged ; for that the Pasnal 
 are local and limited, that is owned on all hands, and Pajnal 
 Laws are strictly to be taken and interpreted, and not allowed 
 to the ruin of the Subject, to extend, or be interpreted beyond 
 the plain and strict sense of the words. It is also true, we have 
 confessed Preaching a Sermon at the House of Mr. William 
 Jackson, with all its true circumstances; but we have not own- 
 ed this to be a crime, or repugnant to any Law, or inconsistent 
 with any of the Queens Instructions yet produced to us; neither 
 has Mr. Attorney made any thing of this yet appear; for all 
 those ancient Statutes of IL the Sth 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 of the Popes, and to bring Ecclesiastical 
 persons, under the civil Jurisdiction of England, who in times of 
 Popery were made only accountable to the See of Rome, and 
 that Jurisdiction; therefore does not touch, neither is any way 
 applicable to this Case. 
 
 Mr. Attorney, These Gentlemen acknowledge, and sajj, (he 
 Ministers of the Church of England are to take Licences, and 
 obliged so to do ; and if so, the Dissenters should also, other- 
 wise they must expect more favour and liberty then the Mims-, 
 ters of the Church of England. 
 
 F. M. I must confess, the Case is very different ; for it is the 
 opinion and constitution of the Church of England, that not- 
 withstanding their Ordination, they are not to Preach or Offi- 
 ciate as Ministers, until they procure, or have a Licence from 
 their Bishop, or Ordinary, which no Dissenting Minister is con- 
 cerned 
 
44 Makemies Tvyal. 
 
 cerned with ; and they voluntarily and freely bring themselves 
 under an Oath of Canonical Obedience, to obey their Ordinary ; 
 and if he require them to take Licences, or any thing else they 
 must, they are sworn to submit thereunto. But finally, There 
 is a great deal of reason, why Ministers of the Church of Eng- 
 land should submit to Licence, but we are not ; because it is 
 only bare liberty which Dissenters have ; but they have not 
 only Liberty, but a considerable Maintainance also ; without 
 which, 1 never knew any of them value Liberty only ; and 
 Dissenters having liberty only without any Maintenance from 
 the Government, are not at all under obligations, neither is it 
 required of them to take Licences of any. 
 
 After a long debate and fair pleadings. The Honourable Ro- 
 ger Mompesson, Chief Justice, applies himself to the Jury, to 
 this effect : Gentlemen, You have heard a great deal on both 
 sides, and, Mr. Attorney says the fact is confessed by the De- 
 fendant, and 1 would have you bring it in specially, for there 
 are some points 1 am not now prepared to answer; How far 
 Instructions may go, in having the force of a Law, especially 
 when not published , or made linown : And there is one objec- 
 tion made by Mr. Makemie, and that is the Oath of Supremacy 
 of England is abolished ; ^ how far it will go in this matter, 
 1 confess 1 am not prepared to answer ; If you will take upon 
 you to judge oj Law, you may, or bring in the fact specially : 
 This is the first Instance 1 can learn, has been of a Tryal or 
 Prosecution of this nature in America. 
 
 The Jury desired the Act of Assembly of New-York might 
 be delivered to them ; and the Defendant desired the Jury might 
 have the Queens Instructions also, which Mr. Attorney opposed 
 and denied. 
 
 There is a Constable Sworn to attend the Jury, who with- 
 draws, and in a very short time returned again. 
 
 The Jury is called, and finds the Defendant Not Guilty. 
 
 The Court begun to enquire Reasons for the Jury's Verdict, 
 but the Chief Justice told the Jury, they might give Reasons if 
 they would, &z. they might choose whether they would or not 
 give any Reasons for their Verdict. The Foreman told the 
 Court, the Defendant had not transgressed any Law : Another 
 person of the Jury told the Court, they believed in their Con- 
 sciences, they had done the Defendant Justice, 8i so the Ver- 
 dict was confirmed. 
 
 Mr. Reignere, Attorney for the Defendant, moved, that the 
 Defendant might be discharged ; which was by the Chief Jus- 
 tice referred till to morrow morning. 
 
 Saturday, 
 
Makemies Tryal. 45 
 
 Satiirdaij, June 1th. 
 Ordered that the Defendant be discharged, paying Fees, and 
 that ills Recognizance be hkewise dischari^ed. 
 
 A True Copy. (Jeo. Clarke. 
 
 The Defendant told the Court, it was an hard case, that an 
 innocent person, and one found so upon Tryal, and by Law, and 
 suffering so much ahead)', and not only innocently, but for do- 
 ing of good, should pay so severe Fees at last. 
 
 At length the Defendant was willing to pay all just and legal 
 Fees to the Court, and Offices thereof, who acted indifferently 
 in their several Offices, as to this matter, but it was unreason- 
 able, he should pay his Prosecutors, whatsoever they were 
 pleased to demand ; this was nothing less, then hiring our Ene- 
 mies to ruin us ; but it being the practice, as they affirmed, no 
 Arguments would be received. 
 
 The Defendant further told the Court, if he must pay Fees, 
 as he was a Stranger, prayed he might not be left to the Arbi- 
 trary Demands of Officers; but that the Bill of Cost might be 
 produced, and examined in open Court, and taxed by the Judges. 
 But the Chief Justice declining it, as a thing he did not concern 
 himself with : It was referred to Robert Milhvurd Esqr. one of 
 the Assistant Judges, who was to tax the Bill, after notice given 
 to the Defendant or his Attorney, of the time ^ place to make 
 their objections: But the Bill was taxed by said Judge, without 
 any such notice given; and instead of moderating any Articles, 
 added two new ones. And their full account was paid, and a 
 Copy of said Account denied the Defendant, and a Receipt 
 upon payment of Money refused, tho' paid in presence of two 
 Witnesses. 
 
 A POSTSCRIPT. 
 
 AS there are Preliminaries to the Tryal Published, to ob- 
 viate those misrepresentations which have been indus- 
 triously improved, both at Neiv- York, and elsewhere, 
 to vindicate this new and unusual Prosecution ; so it is judged 
 as necessary, to add by way of Postscript or Conclusion, for the 
 Information of America, Copies of these following particulars. 
 1. The Act of Assembly of New- York, /or Settling a 3li}iis- 
 try, and raising a Maintainancc for them, only in some parti- 
 cular places of that Government. 2. A Copy of the Act of 
 
 Parliament 
 
46 Makemies Tryal. 
 
 Parliament 0/ England, /or Punishing Governours of Planta- 
 tions in England, yb/' Crimes committed by them in the Plan- 
 tations. 3. A Copu of such Licences as are granted by Lord 
 Cornbury, to some lllinisters. 4. An Account of the Exorbi- 
 tant Charge of the Confinement and Prosecution, for Preach- 
 ing two Sermons in New- York Government. 5. A Copy of 
 Mr. Makemies Certificate from a Court of Virginia. To 
 which I shall add some illustrating Animadversions, and so con- 
 clude this Narrative. 
 
 1. An Act passed in a General Assembly, made Sept. 12. 
 1693. 
 
 An Act for Settling a Ministry, and raising a Maintai- 
 nance for them in the City of New- York County of 
 Richmond, Westchester, and Queens-County. 
 
 T Hereas Prophaness and Licentiousness have of late 
 Overspread this Province, for vjant of a Settled Minis- 
 try throughout the same : To the end the same may be removed, 
 and the Ordinances of God daily Administered. Be it Enacted 
 by the Governonr, and Council, and Representatives Convened 
 in General Assembly, and by the Authority of the same, That 
 in each of the respective Cities and Counties hereafter men- 
 tioned and expressed ; there shall be called, inducted and estab- 
 lished, a good sufficient Protestant Minister, to officiate and 
 have care of Souls, within one year next after the Publication 
 hereof: That is to say, in the C\iy o{ Neiv-Yorli one, in the 
 County o^ Richmond one, in the County of Westchester two, in 
 (Queens- County two, one at Jamaica, and the adjacent Towns 
 &Z, Farms: The other to have the care of Hempstead, and the 
 next adjacent Towns and Farms. 
 
 And for their respective Encouragement; Be it further En- 
 acted by the Authority aforesaid. That there shall be annually, 
 and once every year, Collected and Paid for the Maintainance 
 of each of their respective Ministers, the respective Sums here- 
 after mentioned : l^hat is to say, for the City and County of 
 New-York, One hundred Pounds; for the two Precincts of 
 Westchester, one hundred Pounds, to each fifty, to be paid in 
 Country Produce at Mony Price ; for the County of Richmond, 
 Forty Pounds in Country Produce at Mony Price ; And for the 
 two Precincts of (Queens- County, one hundred and twenty 
 Pounds, to each Sixty in Country Produce at Mony Price. 
 And for the more orderly raising the respective Maintainances 
 
 for 
 
Makemies Tryal. 47 
 
 for the Ministers aforesaid ; Be it further Enacted by the Au- 
 thority aforesaid, That the respective Justices of every City 
 and County aforesaid, or any two of them, shall every year 
 issue out tlieir Warrants to the Constable, to Summon the 
 Freeholders of every City, County and Precinct aforesaid 
 together on the second Tuesday in January, for the chusing of 
 ten Vestry Men, and two Church-Wardens; and the said Jus- 
 tices and Vestry Men, or major part of them are hereby im- 
 powred within ten days after the said day, or any day after as to 
 them shall seem convenient, to lay a reasonable Tax on the said 
 respective Cities, Counties, Parish, or Precinct, for the Main- 
 tainance of the Minister and Poor of the respective places; and 
 if they shall neglect to issue their Warrants, so as tlie Election 
 be not made that day, they shall respectively forfeit Five 
 Pounds, currant Money of this Province ; and in case the said 
 Freeholders duly Summoned as aforesaid, shall not appear, or 
 appearinj^, do not cluise the said ten Vestry Men and two 
 Church-Wardens, that then in their default the said Justices 
 shall within ten days after the second Tuesday, or in any day 
 after as shall seem to them convenient, lay the said reasonable 
 Tax on the said respective Places, for the respective Mainlai- 
 nances aforesaid ; and if the said Justices and Vestry Men shall 
 neglect their duty herein, they shall respectively forfeit Five 
 Founds, Currant ^loney aforesaid. 
 
 And be it further Enacted by the Authority aforesaid, That 
 such of the Justices and Vestry Men that shall not be present 
 at the time appointed to make the said Tax, and thereof be 
 Convicted by a Certificate under tlie hands of such as do appear, 
 and have no sufficient excuse for the same, shall respectively 
 forfeit Five Pounds currant Money aforesaid ; and a Roll of the 
 Tax so made, shall be delivered unto the hands of the respect- 
 ive Constables of the said Cities, Counties, Parishes, Precinct, 
 with a Warrant Signed by any two Justices of the Peace, im- 
 powering him or them to Levy the said Tax, and upon refusal, 
 to distrain and sell by publick Outcry, and pay the same into 
 the hands of the Church- Wardens, retaining to himself Twelve 
 pence per Pound for Levying thereof; and if any person shall 
 refuse to pay that he is so assessed, and the said Constable do 
 strain for the same, all his Charges shall be paid him, with such 
 further allowance for his pains, as the said Justices, or any of 
 them shall judge reasonable. Or if the said Justice or Justices 
 shall neglect to issue the said Warrant, he or they respectively 
 shall forfeit Five Pounds, Currant Money aforesaid. 
 
 And if the said Constable, or any of them fail of their duty 
 
 herein, 
 
48 Makemies TryctL 
 
 herein, they shall respectively forfeit Five Pound, Currant 
 Money aforesaid, and the Church-Wardens so Chosen, shall 
 undertake the said Office, and receive and keep a good account 
 of the Money or Goods levied by virtue of this Act ; and the 
 same issue by Order from the said Justices and Vestry Men of 
 the respective Cities, Counties, Precincts and Parishes afore- 
 said, for the purposes and intents aforesaid, and not otherwise. 
 And the Church-Wardens shall, as often as thereunto required, 
 yield an Account unto the Justices and Vestry Men, of all their 
 Receipts k, Disbursements ; and in case the Church- Wardens, 
 or any of them, shall neglect their Duty herein, they shall re- 
 spectively forfeit Five Pounds, Currant Money aforesaid, for 
 every refusal. 
 
 And be it further Enacted by the Authority aforesaid, That 
 the said Church Wardens in their respective Precincts aforesaid, 
 shall by Warrant as aforesaid, pay unto the respective Minis- 
 ters, the Maintenance aforesaid, by four equal & Quarterly 
 Payments, under the Penalty of Five Pound, Currant Money 
 aforesaid, for each neglect, refusal or default; the one half of 
 all such forfeitures shall be disposed of to the use of the Poor 
 in each respective Precinct, where the same doth arise; and 
 the other half to him or them that shall prosecute the same. 
 
 Always Provided, and be it further Enacted by the Autho- 
 rity aforesaid, That all and every the respective Ministers that 
 shall be Settled in the respective Cities, Counties and Precincts 
 above-said, shall be Called to Officiate in their respective Pre- 
 cincts aforesaid, by the respective Vestry Men & Church-War- 
 dens aforesaid : And always Provided, that all former Agree- 
 ments made with Ministers throughout this Province, shall 
 continue and remain in their full force and virtue : Any thing 
 contained herein to the contrary hereof in any wise notwith- 
 standing. 
 
 An Act to Punish Governours of Plantations in 
 this Kingdom, for Crimes by them commit- 
 ted in the Plantations. 
 
 'VJ^ Uereas a due Punishment is not provided for several 
 ^ ^ Crimes and Offences committed out of this His Majesty's 
 Realm of England ; whereof divers Governours, Licutenant- 
 Govcrnours, Deputy- Governours or Commanders in Chief of 
 
 Plantations 
 
Makemies Try ah 49 
 
 Plantations and Colonies ivithin his Majesty's Dominions be- 
 yond the Seas, Have taken Advantage, and have not been de- 
 terred from Oppressing His Majesty ^s Subjects ivithin their 
 respective Governments and Command, nor from committing 
 several other great Crimes and Offences ; not Deeming them- 
 selves Punishable for the same here, nor accountable Jor such 
 their Crimes and Offences, to any Persons within their respec- 
 tive Governments and Commands. For Remedy whereof. 
 
 Be it Enacted by the Kings Most Excellent Majesty, That 
 if any Governour, Lieutenani-Governour, Deputy-Governours 
 or Commanders, shall after the first day o( August, One Thou- 
 sand Seven Hundred, be guilty of Oppressing any His Majes- 
 ty's Subjects beyond the Seas, within their respective Govern- 
 ments or Commands ; or shall be guilty of any other Crime or 
 Offence, contrary to the Laws of this Realm, or in force within 
 their respective Governments or Commands ; such Oppressions, 
 Crimes and Offence shall be Enquired of, Heard and Deter- 
 mined in His Majesties Court of Kings Bench here in Eng- 
 gland ; or before such Commissioners, and in such County of 
 this Realm, as shall be assigned by his Majesty's Commission, 
 and by good and lawful men of the same County ; and that 
 such Punishment shall be inflicted on such Offender as are 
 usually inflicted for Offences of like Nature committed here in 
 Ensrland. 
 
 A Copy of a Ministers Licence granted by Lord Cornbury. 
 
 By His Excellency Edward Viscount Cornbury, Captain Gen- 
 eral, fyc. 
 
 To Greeting. 
 
 I Do hereby Licence and Tolerate you, to be Minister of the 
 Congregation at in County, in 
 
 the Province of New- York : And to have and exercise the 
 free Liberty and Use of your Religion, pursuant to Her Ma- 
 jesty's Pleasure, therein signified to me, in Her Royal Instruc- 
 tions ; for and during so long time, as to me shall seem meet. 
 And all Ministers and others, are hereby required to take 
 notice hereof Given under my Hand and Seal, at Fort- Anne, 
 in New-York, this day of in the 
 
 Year of Her Majesties Reign. Annoq ; Dam. 
 
 Cornbury, 
 
 A 
 
50 ^lakemies Tryal. 
 
 A Copy of a Certificate from the Court of Accomack 
 County in Virginia, read by Lord Cornbury, before 
 Commitment of Francis Makemie, for Preaching a Ser- 
 mon at York. 
 
 Accomack-County ss. 
 
 fW^Hesc may Certijie to all, to ivhom these Presents may 
 ^ concern, that Mr. Francis Makemie, a Dissenter and 
 Preacher, in the aforesaid County of Accomack, hath at 
 a Court held in the aforesaid County, October the 5th. 
 1699. performed and answered, by taking the Oaths, he. 
 Enjoined in a certain Act of Parliament, made the 24iA 
 day of May, Anno Dom. 1689. In the First Year of the 
 Reign of King William and Qiieen Mary, Enlituled, An 
 Act for Exempting Their Majesty's Protestant Subjects, 
 Dissenting from the Church ot England, from the penal- 
 ties of sundry Laws. And by his application to the 
 Court by Petition obtained Order in October Court last, 
 that his oivn House at Accomack- ^'oif^n, and his Dwel- 
 ling-House at Pocamock, should be Registred and Re- 
 corded to be the first places of his constant and ordinary 
 Preaching: Which is Attested this IQth day o/ October, 
 Anno Dom. 1699. 
 
 Per me John VVashbourn, Cler. Car. Com. Accomack. 
 
 An account of the Charges of the Imprisonment of Francis 
 Makemie, and John Hampton; and Prosecution of the 
 former, for Preaching a Sermon at New- York City, 
 
 Item. I, s. d. 
 
 r|^0 Tho. Cardale, Sheriff of Queens Coun- ") 
 ■*• ty, on Lo?jo--/y/anc/, for apprehending and ! „. . 
 bringing us before Ld. Cornbury, at Fort- \ 
 Anne. J 
 
 To Charges at Jamaica, whether we were > nn io nn 
 
 carried out of the way. \ UU 1^ UU 
 
 To Expences at White-Hall Tavern, while ^ 
 
 attending Lord Cornbury^ leisure, besides > 00 02 03 
 
 what sundry Friends spent. ^ 
 
 To 
 
Makemies Tryal. 51 
 
 To Ebenezar Wilson High Sheriff for Com- ] 
 
 luitment to his House. [ 04 01 00 
 
 To Extraordinary Expences, during the time [ 
 
 of our Imprisonment. J 06 00 00 
 
 To Mr. J a. Rcignerc for a retaining Fee. 01 13 09 
 
 To a Fee at another time. 03 06 00 
 
 To -E(^e. (^ri/so«, Sheriff of YorZ: for Accom- ) ^n n- tu- 
 
 , . ' > 13 Od Ob 
 
 modation. 5 
 
 To Ditto for Return, and Habeas Corpus. 04 01 00 
 
 To the Chief Justice when we gave Recog- ) p., ,p p... 
 
 nizance. ) 
 
 To Ditto after the first Term. 00 18 00 
 
 To Mr. fVilliam Nichol for pleading. 02 12 00 
 
 To Ditto still due, but now ordered him. 01 10 00 
 
 To my Charges in returning with my man from ^ 
 
 Virginia both by Land &, Water, to at- > 12 06 06 
 
 tend the Tryal at New-York. ) 
 
 To the Sheriff for a Copy of the Pannii. 00 05 06 
 
 To Mr. Attorney for the Queen tho' Cleared 12 12 06 
 
 To Mr. Secretary for Fees. 05 12 06 
 
 To the High-Sheriff for Fees after Tryal. 01 10 00 
 
 To the Judge. 01 00 00 
 
 To Judge ^Fz7/u?arfZ for taxing the Bill of Cost > nn io nn 
 
 , , . », ® > 00 1 2 00 
 
 I ihmlc 5 
 
 To the Cryer and Under-sheriff. 00 10 00 
 
 To Mr. Reigncre for his pains in Writing and > ^^ ^^ ^^ 
 
 Pleadintr. S 
 
 1 
 
 Sum 81 04 09 
 
 N this Postscript, there is first. The only Establishing Act of 
 New-York which the Clergy of the Church of England 
 has laid hold upon, h thereby would deceive the World, in im- 
 posing upon, not only the American, but ^wropfcan World, that 
 they are Established in New- York Government, as in England; 
 but also influence tliat Noble Corporation or Society for Propo- 
 galing the Gospel, or the Patrons of most of them, to break the 
 Fifth Commandment, in Stubbs his Scheme : And tho' the 
 foregoing Tryal has opened the eyes, and undeceived most, if 
 not all at New-York, '\n this matter; for which they may thank 
 a Prison. So this is to enlighten, not only those abroad in the 
 World, but also influence and direct the Assemblys of New- 
 York for the future; in not giving a handle to any, to pervert 
 their Laws, contrary to the intention of the Legislators, or con- 
 
 firminc 
 
52 Makemies Tryal. 
 
 firming by subsequent Acts, in their unjust possessions ; all 
 which they may perceive from the following particulars. 1. 
 This Law is not general for the whole Government, but for 
 four Counties of a Colony, where there are nine Counties ; so 
 that the largest share is yet without the benefits of this Act. 2. 
 It was made upon the motion and application of sundry Dis- 
 senters, on Long-Island, yet alive, who expected another bene- 
 fit by it, then they have been since treated with. 3. It was 
 made by an Assembly generally Dissenters, and are so to this 
 day; and let such as are alive declare their design in this Law. 
 4. There is not any mention of so much as the name of the 
 Church of England, or the mode or manner of the Church of 
 England Worship, Government or Ceremonies in all the Law, 
 without which, I cannot imagine they can have any Establish- 
 ment. 5. Every sufficient Protestant Minister, duly called 
 according to directions of said Law, has a right hereunto, and 
 none else ; and that Dissenters for whom this Law was origi- 
 nally designed, are deemed and called Ministers, and men in 
 Holy Orders, is plain from the express words of the Act of 
 Toleration. 6. None have a right unto, or should have any 
 benefit by this Act, but he that is called and chosen by twelve 
 men, chosen by the free Votes of the people of the County 
 which Mr. Urghart of Jamaica, never had by any Vote of the 
 majority ; therefore has as great a right to the Salary there, as 
 he has to the Meeting-House, with the House &£ Land he lives 
 upon, of which the Proprietors have been Ousted with violence, 
 without all legal Process or Ejectment ; and being of 1500/. 
 value. It is matter of satisfaction this practice is singular, and 
 not yet made a President of, tho' New-Town is threatned by 
 the same Parson. 7. It is observable, at the time this Law 
 was made, there was not a Church of England Clergyman in all 
 that Country, and for some time after. 8. As no person had a 
 right by this Law, but such legally called, and chosen ; so con- 
 sequently it was no crime for the Vestry to refuse levying or 
 paying money to such as had no right. 9. By English Law, 
 and Practice, no Vestry men were to be fined as culpable, until 
 legally convicted of the crime, or matter of fact. 10. By the 
 last clause of this Law, all former Agreements made between 
 Ministers and People, were confirmed and ratifyed, and all such 
 were then, and are to this day, Dutch, French, and British 
 Dissenters. So much concerning New-York Act of Assem- 
 bly. 
 
 As to the English Act of Parliament, 1 shall say nothing, 
 but leave that to the (Queens- Bench, and the Learned Judges 
 
 there, 
 
Makemies Trijul. 53 
 
 there, when ihe crimeless Minimus, and till further order comes 
 to be tryed by them. 
 
 The next Copy is a Neiv-York Licence, not so common and 
 and general to Dissenters, as Mr. Attorney asserted at the Tryal ; 
 for if ihey were all called in, they would make but a small num- 
 ber, and any may have them for half the money they cost; and 
 with some not so easily swallowed down, as Conformity, for 
 which we dissent: And for these Reasons. 1. If we are not 
 Ministers before, this Licence can never make us so. 2. No 
 such Instructions from the Queen was produced at the Tryal, as 
 laid Dissenters under any obligations of taking Licences. 3. 
 By this Licence they are only tolerated to exercise their Reli- 
 gion in one Congregation, and allows not a liberty to Preach to 
 any People in the whole Government, who shall desire it, which 
 no Minister in his right wit for the future, will submit to. 4. 
 It is a most precarious liberty, which is granted, not, Quamdiu 
 bene se gesserii, but during pleasure; which is inconsistent with 
 that Commission and Authority, which Ministers of the Gos- 
 pel, called of God, derive from the Lord Jesus Christ, the Head 
 and King of his .Militant Churches : Therefore it is from a prin- 
 ciple of Conscience, and not from any contempt of Government 
 or disrespect to the persons of any in Authority, that they can- 
 not, they dare not submit to such a Licence, so inconsistent 
 with the toleration, and that liberty of Conscience allowed in 
 Britain, and practised in all the Queens Dominions, besides 
 Ncw-Yor'k, and commanded to be allowed by the Queens In- 
 structions. 
 
 The next thing to be taken notice of in this Postscript, is a 
 Copy of Mr. Makemies Certificate from a Court of Record in 
 the Dominion of Virginia, which was produced to, and read by 
 Ld. Cornbury, before Confinement, and shown to the Grand 
 Jury, before the Presentment was found : And tho' Mr. Attor- 
 ney told the said Jury, while four of the Hearers were examin- 
 ing upon Oath concerning the Sermon, this Certificate was writ 
 under a Hedge, which no doubt influenced them to have no re- 
 gard thereunto; Yet if the Act of Toleration, and consequently 
 this Certificate had come in play at the Tryal, he was armed 
 with an Exemplification from the Government, signed by the 
 Prsesident, and the Seal of the Colony annext, to prove the 
 truth and validity of this Certificate, and vindicate it from For- 
 
 The last thing is an account of the Expences, of not only a 
 person who is innocent, but for doing good, as was determined 
 by the Tryal ; and in complying with the most solemn obliga- 
 tions 
 
54 JIakemies Trycil. 
 
 tions of duty, bolh to God, and the Souls of men. To which, 
 besides loss of time, and absence from his Family and Concerns, 
 he might have justly charged Twelve Pounds more Money, by 
 being necessiated to make his Escape, both by Land and Water 
 to IS ew-En gland, from Officers with new Precepts, whereby a 
 whole Sabbath was prophaned, in seeking to apprehend him ; 
 for which some must be accountable. 
 
 But it is plain and undeniable, that the Prosecution of the 
 most innocent person in the world ViX. Ntw-Yorlc is more expen- 
 sive, then if Mr. Malcemie had been guilty of all the Pasnal 
 Laws mustered up, in the Indictment against one Seruion, if 
 prosecuted in England, even while Pasnal Laws were in force, 
 and Executed there. 
 
 And a fair and legal decision, cannot put an end to a Con- 
 troversy, where the same flict is made criminal, and a new Pro- 
 cess violently designed, and vigorously aimed at, by such, as 
 nothing but the interposition of the Authority of England will 
 put a stop to. 
 
 And what legal Authority Mr. Attorney, and a perpetual 
 Sheriff have for their demanded Fees, I leave to the Regulated 
 Table of Fees of Nciv-York lo determine ; not to be paralelled 
 by any Colony in Her Majesty's Dominions. 
 
 In regard that all Opportunities have been denyed to 
 the abovesaid Mr. Makemie for his oitm Vindica- 
 tion, Hwas thought proper here to Subjoin a Copy 
 of his Letter to the Lord Cornbury^ of which no 
 regard was had, nor answer given. 
 
 Boston, July 28M. 1707. 
 
 May it please Your Lordship, 
 
 IMost humbly beg leave to Represent to Your Excellency 
 my just astonishment at the Information received from sun- 
 dry hands since my arrival in these Colonies, and after so 
 long and so expensive a Confinement, so deliberate and fair a 
 Tryal, before Judges of Your Lordships appointment, and by a 
 Jury Chosen by your own Sheriff, on purpose to try that mat- 
 ter : I have been legally cleared, and found guilty of no Crime 
 
 for 
 
*Makeniies Tryal. 55 
 
 for Preaching a Sermon at Neiv- York, though my Innocence 
 protected me not from unsjjeakable and intollerable Expence. 
 
 I am infoiined, may it please your ExctUency, there are Or- 
 ders and Directions given to sundry Officers in the Jerseys, for 
 apprehending ine, and a design of giving me fresh trouble at 
 iVez:;- York. 
 
 If I were assured of the true cause of Your Lordships repeat- 
 ed Resentments against me, I doubt not but my Innocence, 
 would not only efteclually justify me, but remove t[)ose impres- 
 sions imposed on Your Lordship by son)e persons about you. 
 
 And as to my Preaching, being found at the Tryal, against 
 no Law, nor any ways inconsistent with Her Majesty's Instruc- 
 tions produced there; and considering the solemn Obligations I 
 am under, both to God, and the Souls of men, to embrace ail op- 
 portunities for exercising those Ministerial Gifts vouchsafed from 
 Heaven ; to whom I do appeal, I have no other end, besides 
 the Glory of God, and the Eternal Good of Precious Souls: 1 
 must assure my self Your Lordship insists not on this now as a 
 Crime, especially in iVew- York Government, where all Pro- 
 testants are upon an equal level of Liberty, and no legal Esta- 
 blishment for any particular Perswasion. 
 
 1 hear I am Charged with the Jersey Paper, Call'd, Forget 
 and Forgive; tho' the proving a Negative in my just Vindica- 
 tion be an hard Task, and not an usual undertaking ; yet doubt 
 not but the thing it self, the matter it contains being foreign to 
 me, and no way concerned me: the time of its publication, 
 being so soon spread abroad after my arrival; I am well assur- 
 ed, none dare legally accuse me, while the Authors sn)ile at 
 Your jLordships mistake and imposition, whose Informers de- 
 serve to the stigmatized with the severest marks of Your Lord- 
 ships Displeasure ; and the Authors will find a time to confront 
 my sworn Accusers of Perjury ; and besides that, I never saw 
 it till about the last of February: We have suflered greatly in 
 our Reputations, and particularly by being branded with the 
 Character of Jesuits ; tho' my universal known Reputation in 
 Europe and America, makes me easy under such inviduous im- 
 putations: 1 have been represented to Your Lordship as being 
 factious in the Government, both of Virginia and Maryland: 
 I have peaceably lived in Virginia, and 1 brought from Mary- 
 land a Certificate of my past Reputation, signed by some of the 
 best Quality on the most Contiguous County, ready to be pro- 
 duced at the Tryal, if there had been occasion for it : A Copy 
 of which I presume to Inclose for Your Lordships perusal and 
 satisfaction. 
 
 I 
 
56 
 
 Makemies Tryal. 
 
 LIBRftRY OF CONGRESS 
 
 014 107 354 
 
 I beg leave to represent to Your Lordship my just concern 
 at the sundry Precepts for apprehending me, both in York and 
 Jerseys, as one of the greatest Criminals ; whereby 1 am pre- 
 vented in performing my own Ministerial Duties to many in 
 Your Lordships Government of my own Perswasion, who de- 
 sire it. I shall patiently expect Your Lordships Commands and 
 Directions, in giving me an opportunity for Vindicating of ray 
 self in what is charged against me, and being always ready to 
 comply with any Qualification enjoined and required by Law. 
 
 I beg leave of Your Lordship to Subscribe myself Your Ex- 
 cellency's Most Humble and most Obedient Servant. 
 
 Francis Makemie. 
 
 FINIS. 
 
LIBRARY OF CONGRESS 
 
 014 107 354 
 
LIBRARY OF CONGRESS 
 
 014 107 354 #