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put to molestation, as we now are by present prosecution. Is it because we are Protestants? Is it because we are nearest alike the established church of England of any dissenters? Is it because we are the most considerable body of Protestants in the Queen's dominions? Is it because we have now, since the union, a national establishment in Great Britain as nearly related and annexed to the crown of England as the Church of England themselves? Sure, such a proceeding, when known, will and must be a prodigy in England."
Attorney—" It is impossible for any man to answer all that has been offered, where so much has been said; and by so many."
MaJcemie—" I verily believe it is impossible for the Attorney to answer what has been said; it is a great truth which he has uttered."
The Attorney then proceeded to argue that the penal laws, at least some of them were coextensive with the Queen's dominions. He said the kings and queens of England command their governors to grant licenses; and that it had been customary to take licenses from the governors.
Mr. Makemie replied at large; and concluded by saying,— "And whereas Mr. Attorney affirms that giving and taking license was very common and universal,—I am well assured there never was, neither is, to this day, any such practice in any plantations of America; and there are but few persons as yet in York government that have license;—for beside the two Dutch ministers who differ upon Long Island—and it is said these licenses are the cause of their difference—there is but one English non-conformist minister in all the government, who has taken a license;—and it is certain that Mr. Dubois, and sundry others of the Dutch churches have no license, neither will they submit to any such as are granted."
The Attorney then moved that the jury bring in a special verdict. The judges inclined that way too. The Attorney said, "The matter of fact is plainly confessed by the defendant, as you have heard, and you are to bring it in specially, for the jury are not judges of law."
Mr. Makemie—" May it please your honours—I am a stranger, who lives four hundred miles from this place, and it is known to the whole country what intolerable trouble I have been put to already, and we cannot consent to a special verdict, for that would only increase my trouble, multiply my charges, and give me further delay. Besides it is a known maxim in law—that strangers are always to be favoured with expedition in justice. This seems no way to admit of delay; and if this should be allowed of, no man's innocence would be able to protect him; for if I should be cleared I should suffer more attaint than if I were guilty of many penal laws in England. And as to the jury's judging of the law, and confessing the fact, I cannot see one point of law to be judged. It is true I have confessed preaching a sermon at the house of Mr. William Jackson,—but have not owned it to be a crime, or repugnant to any law, or inconsistent with any of the Queen's instructions; nor hath the attorney made any thing of this nature to appear,—for all those ancient statutes of Henry VIII. tend only to throw off the authority, supremacy, and jurisdiction of the Popes and See of Rome, and invest the kings and queens of England with that usurped authority, and to bring ecclesiastical persons under the civil jurisdiction of England, who in times of Popery were made accountable only to the See of Rome,—therefore they do not touch, neither are any way applicable to this case."
Attorney—" These gentlemen acknowledge, and say, that the ministers of the Church of England are to take license, and are obliged so to do; and if so the Dissenters should also— otherwise they must expect more favours and liberty than the ministers of the Church of England."
Makemie—" It is the constitution of the Church of England, that the ministers, notwithstanding their ordination, do not preach, or officiate as ministers until they procure a license from their Bishop; and they voluntarily bring themselves under oath of canonical obedience. But finally there is a great deal of reason why ministers of the Church of England submit to license; but not so with us. Eor it is only bare liberty which Dissenters have; but the others have not only liberty, but a considerable maintenance also, without which I never knew any of them value liberty only. And Dissenters having liberty only, without any maintenance from Government, are not at all under obligations, neither is it required of them to take license."
The Chief Justice then charged the jury—"Gentlemen; you have heard a great deal on both sides, and Mr. Attorney says, the fact is confessed by the defendant;—and I would have you to bring it in specially, for there are some points which I am not now prepared to answer; how far instructions may go, in having the force of law, especially when not published or made known;—and one objection made by Mr. Makemie—that is, the oath of supremacy of England is abolished; and how far it will go in this matter, I confess I am not prepared to answer. If you will take upon you to judge of law, you may; or bring in the fact specially. This is the first instance that I can learn that there has been a trial or prosecution of this nature in America."
The Jury asked for the Act of Assembly of New York; and the defendant desired that the jury might have a copy of the Queen's instructions, which the Attorney opposed and denied. A constable was sworn to attend the jury, who withdrew and in a short time returned again; and being called, found the defendant Not Gruilty.
The Court required the reasons for the verdict. The Chief Justice said, they might give reasons for their verdict, or not, as they chose. The foreman said the defendant had not transgressed any law. Another of the jury said, they believed in their consciences they had done the defendant justice. And so the verdict was confirmed.
Mr. Reigniere moved that the defendant be discharged; the Chief Justice referred it till to-morrow morning. Saturday, June 7th, 1707. "Ordered that the defendant be discharged, paying fees."
Mr. Makemie objected to paying such severe fees—but at length agreed to pay all just and legal fees to the Court and officers thereof, who acted indifferently as to this matter; but said it was unreasonable he should pay his prosecutors what they pleased.
It was affirmed that it was the practice; and no argument would be received. Makemie prayed that the bill might be taxed in open Court. This the Chief Justice declined; and it was referred to Robert Milward, Esq., one of the Assistant Judges, who was to give notice to Mr. Makemie or his attorney of the time and place. But no notice was given—and two new items added. The full amount was paid; and a receipt refused the defendant, though the money was paid in presence of two witnesses.
The amount of expenses paid by Mr. Makemie in consequence of this trial was 83?. 7s. 6d.; of this the Attorney General took 12Z. 12s. 6c?.; the Secretary 51. 12s. 6cZ.; the High Sheriff, for commitment to his house, for Habeas Corpus, and returns and fees after trial, took 9?. 17s.; the Judges, under various pretexts, 4d. 6s. This is without a parallel in the history of the colony; that the High Sheriff and Attorney General should take fees from a defendant who was cleared by the jury.
Soon after his liberation, Mr. Makemie preached again in the church allowed to the French; his sermon was printed; great excitement followed; he was accused of being the author of a pamphlet which was spread abroad soon after his arrival in the province; and the Governor issued new process, and employed his officers, all day of a Sabbath, to find and arrest him again, and bring him to a confinement, and another trial. He escaped their hands, and fled out of the province; and thus gratified his persecutors by leaving York.
The following letter is the only one from the pen of Makemie known to be in existence. It was directed to Lord Cornbury; and bears date, Boston, July 28th, 1707:
"May it please your Lordship; I most humbly beg leave to represent to your Excellency my just astonishment at the information received from sundry hands, since my arrival in these colonies; and after so long and so expensive a confinement—so deliberate and fair a trial, before Judges of your Lordship's appointment, and by a jury chosen by your own Sheriff on purpose to try the matter—I have been legally cleared, and found guilty of no crime for preaching a sermon at New York; though my innocence should have protected me from unspeakable and intolerable expense, yet I am informed, may it please your Excellency, there are orders and directions given to sundry officers in the Jerseys for apprehending me, and a design of giving me fresh trouble at New York.
"If I were assured of the true cause of your Lordship's repeated resentments against me, I doubt not but my innocence would not only effectually justify me, but remove those unjust impressions imposed on your Lordship by some persons about you.
"As to my preaching—being found at the trial to be against no law, nor any ways inconsistent with her Majesty's instructions produced there; and considering the solemn obligations I am under both to God and the souls of men, to embrace all opportunities of exercising those ministerial gifts vouchsafed to me from heaven—to whom I do appeal—I have no other end, besides the glory of God and the eternal good of precious souls; I must assure myself your Lordship insists not on this now as a crime, especially in New York government, where all Protestants are upon an equal level of liberty, and where there exists no legal Establishment for any particular persuasion.
"I hear that I am charged with the Jersey paper called Forget and Forgive. Though the proving a negative be an hard task, and not an usual requisition or undertaking, yet why should there be any doubt about the thing itself; the matter it contains being altogether foreign from me, and no way concerning me; the time of its publication, being so soon spread abroad after my arrival, I am well assured none dare legally accuse me, while the real authors are smiling at your Lordship's mistake and imposition. Your informers deserve to be stigmatized with the severest marks of your Lordship's displeasure: and the authors will find a time to confront my sworn accusers of perjury; and besides that I never saw it until about the last of February.
"We have suffered greatly in our reputations, and particularly by being branded with the character of Jesuits; though my universal known reputation, both in Europe and America, makes me easy under such invidious imputations. I have been represented to your Lordship as being factious, bothv in the government of Virginia and Maryland. I have peaceably lived in Virginia; I have brought from Maryland a certificate of my past reputation, signed by some men of the best quality in the most contiguous county, ready to be produced at the trial, if there had been occasion for it. A copy of which I shall presume to enclose for your Lordship's perusal and satisfaction.
"I beg leave to represent to your Lordship my just concern at the sundry precepts for apprehending me, both in York and the Jerseys, as one of the greatest criminals; whereby I am prevented in performing my ministerial duties to many, in your Lordship's government of my own persuasion, who desire it.
"I shall patiently expect your Lordship's commands and directions, in giving me an opportunity for vindicating myself in what is charged against me, and being always ready to comply with any qualifications enjoined and required by law. "I beg leave of your Lordship, to subscribe myself, Your Excellency's most humble and Most obedient servant,
THE SCOTCH IRI SH.
The congregations gathered by Makemie, in Maryland, flourished after his death; and the Presbytery, formed principally by his agency, increased greatly, and stretched first northward, and then southward, and at last westward, under the auspices of numerous Synods, and the General Assembly of the Presbyterian Church. For about thirty years after the death of Makemie, the number and influence of Presbyterians in Virginia were small. Not one flourishing congregation could be found, nor one active minister lived, in her borders. Then commenced a tide of emigration from his father land, the province of Ulster, Ireland, that spread over a beautiful section of Virginia, and filled up her wild borders with a peculiar race. The influence of that race of men on Virginia, in making her what she is, invests its history with an interest perpetually increasing, as the results of the meeting,—the collision,—and the intermingling of the Old English and Scotch Irish members of