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Jews, who openly blaspheme the name of the Lord Jesus Christ and disown the whole Christian religion,—the Quakers who disown the fundamental doctrines of the Church of England, and both the sacraments,—the Lutherans, and all others are tolerated in your Lordship's government, and only we, who have complied and are still ready to comply with the Act of Toleration, and are nearest to and likest to the Church of England of any dissenters, should be hindered, and that only in the government of New York and the Jerseys. This will appear strange indeed.
0. "You must blame the Queen for that.
M. "We do not, neither have we any reason to blame her Majesty, for she molests none, neither countenances nor encourages any who do; and has given frequent assurances, and of late, in her gracious speech to parliament, that she would inviolably maintain the toleration."
Here Lord Cornbury began wTriting precepts for discharging the prisoners from the custody of the sheriff of Queen's county, and for their commitment in New York. Mr. Hampton, who had hitherto remained silent, demanded a license to preach, according to Act of Toleration; Lord Cornbury absolutely denied it. Mr. Makemie then moved that the law be produced to determine the point whether it were local and limited or not. He said he doubted not the Attorney was able soon to produce the law; and further, he offered to pay the Attorney for a copy of that paragraph which contains the limiting clause.
G. "You, sir, know law?
M. "I do not, my Lord, pretend to know law; but I pretend to know this particular law, having had sundry disputes thereon." He here refers to his appearance before the courts of Maryland and Virginia. The mittimus being made out, the high sheriff of York city and county, Ebenezer Wilson, took them to his dwelling house, as the place of their confinement. On Friday the 26th, after sundry demands, by the prisoners, he gave them a copy of their commitment, viz.
"You are hereby required and commanded to take into your custody the bodies of Francis Makemie 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 23 day of January 1706, 7.
To Ebenezer Wilson, Esq. High Sheriff of New York.
A true copy—Ebenezer Wilson."
This was made by the supreme authority, and not by the proper officers appointed for the commitment of offenders:— there is no mention of the Queen's authority or name:—there is no crime alleged:—and they were to be discharged by the Governor and not by "due course of law." Finding themselves imprisoned they sent the following petition by the hands of the High Sheriff, viz:
"To his Excellency, Edward Viscount Cornbnry, Captain General and Governor in Chief of the Province of New York and New Jersey, and all the tracts of land depending thereon in America and Admiral of the same—the humble petition of Francis Makemie and John Hampton most humbly sheweth:
"That whereas your Excellency has been pleased to commit us to prison by a precept wherein there is no crime alleged we your Lordships most humble petitioners and prisoners, most humbly pray we may be permitted to know our crime. And your Excellencys most humble petitioners and prisoners further pray, as we are strangers on our journey to New England, above four hundred miles from our habitation, we may be allowed a speedy trial, according to law, which we humbly conceive to be the undoubted right and privilege of every English subject. And your Excellencys most humble petitioners and afflicted prisoners shall as in duty bound, always pray.
To this petition, a verbal answer was returned, after some days,—"that Lord Cornbury did admire they should petition to know their crime, he having so often told them,—and that they might have a trial if they took the right way." What this "right way" was they could not ascertain though they made application both to the Sheriff and Attorney. They had no alternative, and therefore resolved to wait with patience till the arrival of the Chief Justice, Hon. Roger Mompesson, Esq., who resided in another province, and could not sign a Habeas Corpus, until he should come into the government of New York. In the meantime the Quarter Sessions of the city and county of New York came on, they petitioned Lord Cornbury, that in the custody of the Sheriff they might be permitted to apply for license, as the law directs—"which,"—say they—"we are again ready to do, we being resolved to reside in your Lordships government." This being rejected by Cornbury, they next addressed the Quarter Sessions, then sitting on the 5th of February, and requested, that, as their certificates from the courts in Virginia and Maryland were not admitted by Lord Cornbury as extending to his government,—they might be permitted in custody of the Sheriff to appear at their bar and be qualified again. Their petition was presented, handed about, but not read in open court. The Attorney General laid hold of it and was putting it in his pocket telling the court it was a libel on Lord Cornbury,—and that it was none of their business to administer the qualifications,—although the Act of Toleration declares expressly that it is the duty of Quarter Sessions so to do. The magistrates were probably" not in possession of the law.
At the same time application was made according to the Toleration Act, for licensing the house of William Jackson, where Makemie had preached, as the place of public worship^ for those who chose to Assemble under the Toleration Act; this was also refused, after being under consideration two days, and the law being presented for their inspection; although, a short time before, a Quaker meeting house had been licensed on application of two men, upon the same act of Parliament.
By the Act of Toleration, when application was made to the Quarter Sessions, or other constituted authorities, the court was required to make register of the same; and an application, according to law, was a legal qualification in the eye of the law.
Chief Justice Mompesson arrived at New York some days before the March term; and to him, through their lawyer Mr. Reigniere, the prisoners presented their petition for a writ of Habeas Corpus. This petition was granted, after some days, and a writ of Habeas Corpus issued March 1706, 7.. This writ demanding "the day and cause of their caption and detention," and neither having been expressed in the mittimus, the Governor made out a new mittimus dated "this 8th day of March A. D. 1706, (7)" in which their crimes are stated "for preaching in this province without qualifying themselves—and without my license first obtained"—and put it into the hands of the Sheriff on the same day he received the writ of Habeas Corpus, Saturday, March 8th, 1706, 7. On Monday afternoon the Sheriff told him he had another mittimus, wherein a supposed crime was specified—and also the clause—"till they shall be discharged by due course of law,"—and they must find securities. By this new mittimus, their imprisonment of six weeks and four days was admitted to be false imprisonment. The Sheriff, in presence of Mr. Reigniere their lawyer, and Dr. Wm. Johnstone and Wm. Jackson, refused to execute the writ of Habeas Corpus until the prisoners paid him twelve pieces of Eight for their commitment, and as many more for the return of the writ; and refused to give a receipt for the money when paid. They were then conducted to the Supreme Court; and on the new mittimus, gave bonds with two securities, Dr. Johnstone, Gentleman, and Mr. Jackson, Cordwainer, to appear the next day, and not depart without leave of the court.
In the return, made by the Sheriff, of the writ of Habeas Corpus, he gives the two mittimuses, of Lord Cornbury, m full. By the Second Mittimus, they were arrested not in the Queen's name, but by Cornbury's own authority; were accused of two crimes—of not qualifying according to law—and of preaching in New York without license from the Governor: whereas they had been qualified in Maryland and Virginia, and offered themselves to qualify in New York, both before Cornbury and the Quarter Sessions.
On Tuesday March 11th, the Supreme Court was in form, Messrs. Makemie and Hampton made their appearance; on the Attorney General's motion, they were required to appear the last day of the term. Mr. Reigniere, their attorney, moved that the writ of habeas corpus and all the proceedings of the Judges' Chamber might be made matter of record; the Attorney General opposed the record on the ground that the thing had not been done in open court. On the next day the Judge delivered to the Court a record of the proceedings in his chamber.
The grand jury were sworn the first day of the term, this matter was given them in charge, with little business beside, and after various meetings and consultations, the Attorney having dropped the name of John Hampton from the prosecution, they brought in their bill against Mr. Makemie on Friday afternoon, their vote being taken, one by one, as they came in from dinner. Some of the grand jury were justices of the peace, who at the Quarter Sessions had refused to have the petitions of the prisoners read, or to pay any attention to the applications for licensing a place of public worship. Four witnesses were examined, one of them Lord Cornbury's coachman, by name of Harris, and gave evidence that they heard no unsound doctrine, or any thing against the government; one of the evidences handed to the jury the act of assembly of New York for liberty of conscience for all, except Papists. The bill charges Mr. Makemie with having preached in New York, to an assembly of more than five persons, without having obtained permission, and without qualification; and also that he used other rites and ceremonies than those found in the book of common prayer. The date of the offence was put, in the bill, January 22d, whereas it took place on the 20th of that month. The bill being brought in the last day of the court, the trial was postponed till the next term, in June. Mr. Makemie on the bail, previously given, of £40 for himself, and <£20 for Mr. Johnstone, gentleman, and .£20 for Mr. Jackson, cordwainer, was permitted to return to Virginia. While the preparations for trial were going on, an order was given to Major Sandford, of East Jersey, to examine upon their oaths certain personSj to discover what discourse they had with some of their friends at the house of Mr. Jasper Crane of Newark; these persons were examined, but nothing found to suit the purpose, either of finding out a crime, or magnifying their faults.
In this stage of the business, we may suppose Lord Cc-rnbury was willing, and expected, the matter should rest; Hampton was dropped from prosecution, having been punished by above six weeks confinement for offending the deputy;—and Makemie, the chief offender, was let out on bail, which he might forfeit, and thus be kept from New York, and the odium of a trial avoided. But Makemie was not the man to forfeit his bonds, or avoid a trial where the honour of the gospel was concerned. If Lord Cornbury had been excited against him, his spirit had been equally aroused to resist the persecution of the tyrannical deputy, and vindicate the right of Presbyterians in the incipient city of New York.
On his way home to Accomac, he attended the meeting of the Presbytery in Philadelphia, which commenced its sessions March 22, (Saturday) 1707. "Mr. Francis Makemie and Mr. John Wilson are appointed to preach upon Tuesday, upon the subjects appointed them at the last Presbytery, on Heb. i. 1st and 2d, by way of exercise and addition. March 25th, (Tuesday)—This day Mr. Francis Makemie and Mr. John Wilson delivered their discourses according to appointment." On Wednesday he was directed to write to Scotland for the purpose of obtaining Mr. Alexander Coldin as minister for the people about Lewistown. On the same day the following interesting overtures were passed; interesting in themselves, and particularly as the last important presbyterial act performed by Makemie; viz. uFirst—That every minister in their respective congregations, read and comment upon a chapter of the Bible every Lord's day, as discretion and circumstances of time, place, &c. will admit. Second over.—That it be recommended to every minister of the Presbytery to set on foot and encourage private Christian societies. Third over.— That every minister of the Presbytery supply neighbouring desolate places where a minister is wanting, and opportunity of doing good offers." The next meeting of Presbytery was after he had made his will. The supply of desolate places with the gospel was the object of his ministerial life.
Mr. Makemie returned from Accomac "with his man," to New York, in time to meet the Court on the first day of its sessions; the defendant's appearance was entered, and he was "ordered to plead to-morrow."
Wednesday June 4th 1707.
The defendant plead not guilty of any crime by preaching a sermon at York. Lord Cornbury being in the Jerseys, the Attorney moved that a copy of the Queen's instructions to the