And at length, some days before March Term, soon after the arrival of the Chief Justice, Roger Mompesson Esqr. the Prisoners by their Lawyer, Mr. Reigniere presented to the Chief Justice, the following Petition, at his Chamber.

To the Honourable Roger Mompesson Esq. Chief Justice of this Her Majesties Province of New-York.

May it please your Honour,

WE

E the Subscribers being Prisoners detained in the Custody of the Sheriff 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 and grant us Her Majesties Writ 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 Law. We are your Honours most humble Servants.

Francis Makemie.
John Hampton.

And after a due consideration of the Statutes in this case provided, 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.

ANNE, 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 Makemie 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 Mompesson Esq. our Chief Justice of our Supream Court of Judicature of our Province of NewYork, at his Chamber, Situate in Queens-street, in the City of New-York, 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 Mompessen Esqr.

6

our

'our Chief Justice at New-York, this eighth day of March, in the sixth Year of our Reign. Clark, 'Octavo die Martij infra Script. Allo.

per me, Roger Mompessen.

The Execution of this Writ appears in the Schedule hereunto 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 obliged 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 Sheriff in the presence of Dr. John Johnstone, Mr. Regniere, and Mr. William Jackson, refused 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 new Mittimus, contained in the following Return, were obliged to enter Recognizance, with two Securities, 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.

:I

The Return is as followeth.

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 New-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 Edward Vis'count Cornbury, Captain General, and Governour in

Chief of the Province of New-York; bearing date, 'the three and twentieth day of January last past; the 'tenour of which Warrant followeth in these words, 'viz. You are hereby required and commanded, to 'take into your Custody, the Bodies of Francis Make'mie & 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. Cornbury. 'To Ebenezer Wilson Esqr. High Sheriff of the City ' and County of New-York. And I do further Certifie, 'that before the coming of said Writ to me directed, that the said Francis Makemie and John Hampton, were committed afterwards by another Warrant, under the Hand and Seal of his said Excellency, Edward "Viscount Cornbury, Governour aforesaid; bearing date 'the eighth day of March instant, unto the Goal & 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 & John Hampton, pretended dissenting Protestant Ministers, 'for Preaching in this Province, without qualifying 'themselves according to an Act of Parliament, made 'at Westminster, in 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. Dom. 1706. Cornbury. To Ebenezer Wilson Esqr. High 'Sheriff of the City and County of New-York. And 'this is the cause of the taking and detaining the Bodies 'of the aforesaid Francis Makemie, and John Hamp'ton; yet the Bodies of them the said Francis Make'mie, and John Hampton, before the said Roger Mompessen, 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.

6

A True Copy. George Clarke.

It is observable, the second Warrant is still granted, and signed by the Supream Authority, and without mentioning the

Queens

Queens Name or Authority: And the supposed Crime specifyed is double; as 1. Preaching in New-York Government, without complying with the qualifications of an Act of Parliament, made the first year of King William & Queen Mary: Whereas Ld. Cornbury had read in January, their Certificates both from Virginia and Maryland, certifying their qualification 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 NewYork 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 according 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
New-York. S

Present Roger Mompesson, Esqr. Chief Justice.

Robert Millward

Thomas Wenham.

Esqrs. Justices.

The Court being called formally, and the Docquet called over, Francis Makemie, and John Hampton made their appearance, 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 Defendants be continued on their Recognizance, and that they attend the last day of the Term.

The Pannel of the Grand Jurors.

William Merrit.

William Anderson.
Robert Lurting.

Elias Boudmot.

Nathaniel Mastin.

Francis Vincent.

Lawrence Reed.

Lewis Carree.

Mr. Reignere, Attorney for the Defendant, moved, that the Writ of Habeas Corpus, with all proceedings 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 Justice his Chamber, and returned to the same place, therefore was not matter of Record; so was put off for that time.

Wednesday the Second Day of the 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.

New-York. ss.

Memorandum, That at the Supream Court of this Province, held at the City of New-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 New-York.

Roger 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 of NewYork, 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