“It is therefore ordered that the mayor and magistrates of this city do attend at the burning of the several papers or journals aforesaid, numbered as above mentioned.”
Upon reading of which order, the Court forbade the entering thereof in their books at that time, and many of them declared that if it should be entered they would have their protest entered against it.
On Wednesday, November 6, the sheriff of New York moved the Court of Quarter Sessions to comply with the said order, upon which one of the aldermen offered a protest which was read by the clerk and approved by all the aldermen, either expressly or by not objecting to it, and is as follows:
“Whereas an order has been served on this Court;
“And whereas this Court conceives that they are only to be commanded by the king’s mandatory writs, authorized by law, to which they conceive that they have the right of showing cause why they do not obey them if they believe them improper to be obeyed; or by orders which have some known laws to authorize them;
“And whereas this Court conceives this order to be no mandatory writ warranted by law, nor knows of no law that authorizes making the order aforesaid, so they think themselves under no obligation to obey it. Which obedience they think would be in them the opening of a door for arbitrary commands, which, when once opened, they know not what dangerous consequences may attend it;
“Therefore this Court conceives itself bound in duty (for the preservation of the rights of this Corporation, and, as much as they can, of the liberty of the press and of the people of the Province, since the Assembly of the Province and several grand juries have refused to meddle with the papers when applied to by the Council) to protest against the order aforesaid, and to forbid all the members of this Corporation to pay any obedience to it until it be shown to this Court that the same is authorized by some known law, which they neither know nor believe that it is.”
Upon the reading of which it was required of the honorable Francis Harison, recorder of this Corporation and one of the members of the Council (who was present at the making of the said order), to show by what law or authority the said order was made. Upon which he spoke in support of it, and cited the case of Doctor Sacheverell’s sermon,[2] which was by the House of Lords ordered to be burned by the hands of the hangman, and that the mayor and aldermen of London should attend the doing of it.
To which one of the aldermen answered to this purpose, that he conceived the case was no ways parallel because Doctor Sacheverell and his sermon were impeached by the House of Commons of England, which is the grand jury of the nation and representative of the whole people of England. That this, their impeachment, they prosecuted before the House of Lords, the greatest court of justice of Britain, and which beyond the memory of man has had cognizance of things of that nature. That Sacheverell had a fair hearing in defense of himself and his sermon. And after that fair hearing he and his sermon were justly, fairly, and legally condemned. That he had read the case of Doctor Sacheverell, and thought he could charge his memory that the judgment of the House of Lords in that case was that only the mayor and sheriffs of London and Middlesex should attend the burning of the sermon, and not the aldermen; and further he remembered that the order upon that judgment was only directed to the sheriffs of London, and not even to the mayor, who did not attend the doing of it. And farther said that would Mr. Recorder show that the Governor and Council had such authority as the House of Lords, and that the papers ordered to be burned were in like manner legally prosecuted and condemned, there the case of Doctor Sacheverell might be to the purpose. But without showing that, it rather proved that a censure ought not to be pronounced till a fair trial by a competent and legal authority were first had.
Mr. Recorder was desired to produce the books from whence he cited his authorities, that the court might judge of them themselves; and was told that if he could produce sufficient authorities to warrant this order they would readily obey it, but not otherwise. Upon which he said that he did not carry his books around with him. To which it was answered that he might send for them, or order a constable to fetch them. Upon which he arose, and at the lower end of the table he mentioned that Bishop Burnet’s pastoral letter was ordered by the House of Lords to be burned by the high bailiff of Westminster.[3] Upon which he abruptly went away without waiting for an answer or promising to bring his books, and did not return.