USA > Pennsylvania > Chronicles of Pennsylvania from the English revolution to the peace of Aix-la-Chapelle, 1688-1748, Vol. I > Part 33
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organizing the House, and, acting upon the default of the Lower Counties, declared the disunion spoken of in the Charter to have taken place, and accordingly asked for the increase provided for in such case in the num- ber of representatives of Bucks, Chester, and Phila- delphia, including two from the City.
At this time, William Penn's title to the government and territory of New Castle &ct. was being strongly questioned in England. Hamilton and the friends of Penn saw that the relations of the two parts of the dual colony required conciliation or at least temporizing : so Hamilton pleaded with the representatives of the Prov- ince not to take the radical measure. He pointed out that tobacco, which was the chief commodity sent to England, and was mostly furnished by the Territories, would be so incumbered by a separate legislature at the place of growth as to divert the trade from Philadel- phia. The inhabitants of the Territories were very likely, upon the erection of a distinct Assembly for the Province, to remonstrate to the Queen, and pray that they, being thrown off and left destitute, be taken under her immediate protection: and such remon- strance would probably be taken advantage of by the officials in England desirous of weakening Proprietary government, and cause the royal approbation of Penn's appointment of the Lieutenant-Governor to be re- stricted to Pennsylvania. If the Assemblymen were bent upon a separation from the Lower Counties, it would be better first to wait to see whether, as the result of the questioning of Penn's title to those Counties, the Queen would make the separation, in which case the Pennsyl- vanians would not incur blame. As to increasing the number of representatives, the Lieutenant-Governor could not see how it could be done until the next elec- tion appointed by the Charter, the first of October fol- lowing. The Assemblymen, nearly all being Quakers, were inclined to insist, declaring that, by the union, the
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first purchasers from Penn had been unable to have the privileges they had expected. However, it being thought that the Lower Counties might elect represen- tatives, if summoned to do so by writs, writs were issued, and the Assemblymen from Pennsylvania agreed to await the result. The Lower Counties duly chose representatives, but these expressed unwilling- ness to sit with members chosen under direction of the Charter, which the Lower Counties did not recognize. The Assemblymen from Pennsylvania, coming back to Philadelphia, were willing to join with those chosen by the Lower Counties, but would do so only on the basis of the Charter being in force. Although there was a letter from the English government through Lord Cornbury requiring a contribution to the fortification of the frontiers at Albany, and there seemed a neces- sity for a law for a militia composed of those without scruples against bearing arms, so as to repel invasion from the sea, Hamilton could only dismiss the legis- lators. Then the twelve representatives of Philadel- phia, Bucks, and Chester certified under hand and seal that they desired the filling up of the body for the Prov- ince according to the Charter, with two members from the City, and so that Philadelphia County should have eight members, Bucks nine, and Chester nine. It does not seem as if such disparity for the rural districts was intended by Penn when he said that each county should "not have less than eight persons;" and Griffith Jones, in joining the other representatives, excepted against the extra member from Bucks and Chester.
The bill for the abolition of proprietary governments had failed to pass at the session of Parliament during which Penn decided to go to England to fight the bill : but it was subsequently pressed by the persons con- nected with the governmental bureaus in London. Penn suggested such modification as would reunite the military government to the Crown, and give to the
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Commander-in-Chief the superintendence of the Cus- toms and Admiralty officials, but leave the civil author- ity as it stood, just as in corporations in England where the King's appointee was Governor, and, moreover, allow appeal to the King on all matters above' £300, and, besides, give to the King a veto on all laws. This modification the Lords for Trade rejected, declaring that the original bill "might be very expedient." The Proprietors of the Jerseys had been prevailed upon to surrender their rights of government: but when the question came of taking away such rights against the will of those invested with them, the nobles and knights of the shires in Parliament, accustomed to offices, jurisdictions, and perquisites as freeholds, ap- pear to have felt that such an act would be an invasion of private property. The chance to make a bargain with the Crown was thus left open to the Proprietary of Pennsylvania, to be availed of as will be narrated later.
Although the Act of Assembly directing attests, which was still in force because not yet repealed by the Crown, prescribed the qualifying of Judges and jurors by merely solemnly promising, and the Act relating to the manner of giving evidence, also in force, allowed witnesses to qualify in the same way, the rather shal- low Churchman of the legal profession, John Guest, whom Penn had made Chief Justice of the Provincial Court, and ex-merchant Finney, the other Churchman on that bench, were unwilling to condemn a criminal to death on testimony not sworn to, or at least the testimony of persons who had no scruples against oaths, but were unsworn; on the other hand, the other Judges, Shippen, Clark, and Thomas Masters, Quakers, were restrained by conscience from administering oaths. In the absence of Clark, resulting in the im- possibility of "three of a kind" holding court, Hamil- ton issued a commission of jail delivery to Guest and
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Finney and Edward Farmer, who also was willing to take and administer oaths; but, the cases for trial being such as involved the death penalty, another horn of the dilemma was reached, viz: Hamilton's confirmation as acting Governor not having been obtained, his commis- sion would not be sufficient foundation for taking away the life of an English subject. So the accused remained in jail, until Clark's return gave the Quakers a quorum commissioned by Penn himself.
The Commissioners for Trade and Plantations ob- jected to the approbation of Hamilton as acting Gov- ernor, because he was under the imputation of having encouraged illegal trade in the Jerseys. Finally Penn petitioned Queen Anne that Hamilton be confirmed for one year. She expressed herself in Council as inclined so to gratify the petitioner, and on November 11, 1702, the approbation of Hamilton as Deputy-Governor of the Province and Territories for one year was given, on condition that Penn or others enter the usual secur- ity in £2000 for the Governor's observance of the Acts of Parliament relating to trade, and on condition that Penn answer certain questions put to him by the Board of Trade as to oaths or affirmations in Pennsylvania and Territories, and as to the rate at which Spanish dollars were current there, &ct. Penn's answers were laid before the Board on December 1, and were viewed as not altogether satisfactory, but, for the dispatch of business, the Commissioners were willing to let matters proceed. The order giving the approbation having stipulated that it was not to set aside or diminish the Queen's title to the Lower Counties, the Commissioners insisted that Penn sign a declaration to that effect in the form drafted by them. This he did on December 10. The entering of security made further delay, and the final certificate under which Hamilton was author- ized to act did not reach Philadelphia before he died.
The Queen in Council ordered on January 21, 1702-3,
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that all persons in judicial or other office in Pennsyl- vania or the Lower Counties, before entering on their duties, take the oath directed by the laws of England, involving allegiance, abhorrence of the doctrine as to excommunicated princes, declaration against foreign princes, non-belief in transubstantiation, &ct. (as in a former chapter), or take the affirmation allowed in England to Quakers, involving the same points as the oaths, and also the subscription to faith in the Trinity and inspiration of the Scriptures; and she further ordered that all persons willing to take an oath in public proceedings be allowed to do so, otherwise the proceedings to be null and void. This order was as far as possible followed: Penn, not on the spot, blamed his colonists for obeying what they had a good defence against. He with his freemen's consent was author- ized to make laws which were to be in force until dis- approved, and by such laws had covered the case of the qualifying of officers, requiring only a promise of fidelity to the Sovereign and the Proprietary and promise to perform the respective duties. Acts of Parliament did not bind the American settlements, to override local laws or the common law of England, unless the American settlements were mentioned in the Act, and they were not mentioned in the Acts pre- scribing these tests, or relating to Quakers' affirma- tions. The order did not arrive in Pennsylvania until one of the criminals whom the special court had failed to try, was on the point of being hung. The Provincial Court, meeting on April 10, 1703, had tried two cases of murder without any oath or affirmation being given, although certain non-Quaker Judges and Moore, the Attorney-General, declined to take part, a substituted prosecuting attorney being secured. A man was con- victed of manslaughter, for which, as an offence within "the benefit of clergy," he was burnt in the hand, and another person-some say a woman for killing her
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child-was convicted of murder, and was sentenced to death. The warrant for the execution was sent to Hamilton at Amboy, East Jersey, but he was too ill to sign it, and, without doing so, died two days later. When this sentencing to death after trial by Quaker jurors not sworn, and not attested in manner prescribed by Parliament, was brought to the attention of the Lords for Trade through Lord Cornbury, Penn took the reasonable ground that a colony and constitution of government made by and for Quakers could not be expected to leave them and their lives and fortunes out of so essential a part of government as juries, other- wise the founders of the country would have stayed at home.
Hamilton's death occurred on 2mo. (April) 26, 1703: his illness had lasted over nine weeks. It may be said that he never settled in Pennsylvania. The Council succeeded to the executive functions.
Edward Shippen, who had occasionally presided over the Council in Hamilton's absence, thus became the highest person in the colony, and so continued for about ten months. He had been converted to Quakerism by or upon marriage with a Quakeress. The disadvan- tages of having a President and other executives who could not conscientiously administer an oath first arose as to registering vessels. The arrangement hit upon by the Council was that John Bewley, the Collector of the Port, administer the oath in the Council Chamber, and the Secretary certify it, and the seal of the Province be affixed: but Colonel Quary declared such method repugnant to the words of the law, and that he would be obliged to suspend Bewley, if he did this. The Queen's order having then arrived, and the Councillors deciding to comply with it, and that it was necessary as acting Governor to take oath or affirmation under the Acts relating to trade, they sent for Quary, Halliwell, Moore, and Yeates, commissioners under the old dedi-
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mus potestatem, to administer such oath, but those men adhered to the letter of their commission as authoriz- ing an oath only, and to be taken by one Governor, so that it could not be administered to less than all the members, or at least a quorum, i.e. five. The commis- sioners were supposed to have seized with pleasure upon this legal objection to starting the machinery of justice, and Halliwell is reported, in a letter from Quaker Councillors to Penn, to have boasted that the commissioners had laid the government on its back, and left it sprawling, unable to move hand or foot. Acting under the alternative in the dedimus, by which the Council and the Collector of the Port could administer qualifications, Bewley, the Collector, was induced to administer the oath to Guest and Finney. Shippen, Carpenter, Clark, Owen, and Pusey made affirmation for the performance of the same duty. All made oath or declaration acknowledging fidelity, abhorring the Pope's supremacy, &ct. Subsequently Guest and Finney appear to have administered in Council the oath for registering vessels.
Roger Mompesson, a lawyer, who had been Recorder of Southampton, and twice elected to Parliament, se- cured appointment as Judge of the Admiralty for Pennsylvania and Lower Counties, New Jersey, and New York, coming to America, and making his resi- dence in Philadelphia, in 5mo., 1703, to lead a "simple life," so as to pay debts, for which he was bound, al- though contracted by his father. Thus Quary was superseded, but he was appointed Surveyor-General of the Customs. Penn hoped that the colony would make sufficient allowance to induce Mompesson to take also the Chief Justiceship of the Provincial Court.
When the Justices of Chester County offered to qualify under the Queen's order, Yeates induced Walter Martin, who had a dedimus potestatem for administer- ing the affirmations, to insist upon the declaration
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against the "pretended Prince of Wales", as recently prescribed by Act of Parliament, but those commis- sioned refused, because the Act did not extend to the Province, and the Queen's order did not mention that oath or the affirmation in its place. In the other coun- ties, and apparently in Chester later, the qualifications mentioned in her order were taken. In the Philadel- phia court, Hugh Durborow, a Quaker, called upon to give testimony, refused to use the form speaking of the presence of God. Guest was here reasonable, and, apparently, with him enough Quaker Justices to make a majority favored letting Durborow affirm as he pleased,-for he certainly testified,-although all the non-Quakers wished him committed for contempt of court. In one case in Philadelphia, when some wit- nesses were about to be sworn, the Quaker Justices left the bench, but Justices Guest, Samuel Finney, Edward Farmer, and Andrew Bankson held court.
The trouble about administering oaths caused the introduction of more non-Quakers into executive and judicial office, and, with the presence in the dominion of a sharp-witted faction watching for questionable pro- ceedings, it was imperative that the government have a non-Quaker chief on the spot. Logan suggested that, pending the appointment of a Lieutenant-Governor, a new Council be commissioned with Mompesson, who was a Churchman, at its head, and Logan later hoped that Penn was making Mompesson Lieutenant-Gover- nor.
The Commissioners for Trade exerted themselves against the Assembly's enhancement of the value of foreign coin, one of the acts of Nov. 27, 1700, having, with slight modification of a former act, made a Peru piece of eight weighing not less than 12 dwt., as well as a Lion or Dog dollar, pass for 6s., and every other piece of eight or dollar weighing 15 dwt., for 7s., with an advance or abatement respectively of 4d. for every
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pennyweight in excess or shortage; the price of smaller coins being also fixed. A representation for the dis- allowance of the Act was made to the Queen, pointing out that a piece of eight of the due weight, stated to be 17 dwt. 6 gr., so made current at 7s. 10d., was intrinsi- cally worth no more than 4s. 6d. On July 30, 1703, the Act was disallowed. The English government, at Penn's suggestion that there should be a general stand- ard, was inclined to make the value of these foreign coins in the colonies the same as in England, but this had been prevented, or at least seemed too difficult, the late King having consented to a law of New England fixing a different value there. The next best thing was to make all the other colonies conform to the one: ac- cordingly, on the 18th of June following the disallow- ance of the Pennsylvania law, the Queen issued a proclamation fixing the value from the 1st of the com- ing January at the New England rate. Thereby pieces of eight of Seville or Mexico or Pillar pieces, which had been passing in Pennsylvania for eight shillings, were to pass for six shillings only. Subsequently an Act of Parliament confirmed this, to be enforced from May 1, 1709.
After the failure, in Hamilton's time, of the attempt to form a voluntary militia, the consciences of the President and many Councillors restrained them from taking any part in the war. They were free, how- ever, to enforce police authority upon persons within their jurisdiction who might commit injuries, or bring about injuries; and accordingly the Council undertook to watch such suspicious characters as Frenchmen, and particularly those travelling through the Indian coun- try. The danger of the Five Nations casting their lot with the French always existed, except when the Eng- lish had actually engaged the warriors for a campaign : and, although no breach of the alliance of those tribes with the government of New York actually took place
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during the period of this history, there was fear that "foolish young men" of the Iroquois, or of their nominal subjects or tributaries, would be stirred up against the settlers of Pennsylvania. Of the traders whom the provincial government distrusted, the treat- ment was severe. Capt. Le Tort's son James, brought up from infancy in the province, had gone to Canada in time of peace, but, after about two years' stay, re- turned to Pennsylvania in the Spring of 1703, submit- ting to various examinations, and appearing to be innocent of evil designs. He and Peter Bezellon, who was under still stronger suspicion, because then a Roman Catholic, coming to Philadelphia in August fol- lowing, were bound in the heavy bail of £500 stg. each to hold no correspondence with the enemy, and to give all information coming to their knowledge. About a year later, and after a Lieutenant-Governor had taken charge, Le Tort was some time in jail in Philadelphia, and was obliged, for obtaining his liberty, to give secur- ity in 1000l .; while Nicholas Gateau, the French cook, who had been naturalized, but had tried to leave Phila- delphia secretly to escape, he said, his creditors, was also detained in jail, and required to give security in 1000l. for good behavior, and not to go out of the juris- diction, or further from the city than twenty-five miles up or down the Delaware River, or than ten miles back into the country.
On hearing of Hamilton's death, Penn wrote quickly to the Lords for Trade, asking them, in the emergency, to recommend either Markham or John Finney for royal approbation as successor; so that the opportunity of a vessel then lading for America be seized for com- municating proper authority to some one in the Prov- ince and Territories. The Board aforesaid, while mak- ing the reply that it was requisite to make the first application to her Majesty, let Penn see that the feeling against Markham had not changed. Penn not knowing
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how he was to furnish security for Finney, it appears that Charlewood Lawton, Penn's agent, suggested for the Lieutenant-Governorship, a personal acquaintance, able to furnish his own security, having some political influence, and for some reason willing to accept, viz: John Evans, about twenty-six years old, whose father had been a friend of the Proprietary. It seems from certain expressions in the Penn and Logan Correspon- dence that Evans was a nephew of Rt. Rev. Dr. John Evans, a strong Whig, made Bishop of Bangor on Jany. 2, 1702. Penn quickly took what was within reach. In a few days after the aforesaid letter to the Board, his petition for young Evans was laid before the Queen. The Board, having the matter referred to it, asked for information concerning him. To gain the favor of the Earl of Nottingham, then a Secretary of State, Evans, entitled to a bond of Baron Dartmouth to Evans's father, who had been treasurer of a political fund, released or cancelled the bond. Dartmouth had married a niece of Nottingham. Dartmouth himself was one of the Commissioners for Trade and Planta- tions. After Penn's explaining that Evans was not under the objection of being a merchant, and, although not a soldier, had seen the army in Flanders, was a gentleman living on his estate, and was a hearty Churchman, and would be recommended by a number of persons, the Board put no obstacles in the way of the approbation. It was given on July 30, 1703. Penn again signed a declaration that the Queen's title to the Lower Counties should not be diminished by her giving the approbation. Evans not only furnished the security for his own behavior, but actually reimbursed Penn for all that had been spent in obtaining approbation for Hamilton. Penn, according to his letter of 12, 9, 1705-6, promised Evans 2001. Penna. money per annum until the Assembly would grant a support.
Lord Cornbury, coming to Burlington in August,
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1703, after appointment as Governor of New Jersey, was waited upon by Quary and other Philadelphia Churchmen, and was reported to have received an ad- dress from vestrymen or attendants of Christ Church requesting him to solicit the Queen for the embracing of Pennsylvania and probably Delaware under his gov- ernment. He was said to have answered that he would obey the Queen's orders with alacrity when orders to such effect came. Notwithstanding that he was staying at Quary's, Cornbury was again entertained by the Quakers in Philadelphia : but they began to dread his being appointed in place of Penn, seeing that Quary and Moore would probably be Cornbury's advisers as to Pennsylvania affairs, that the royal commission to him as Governor of New Jersey gave him great powers, and required him to administer oaths, including that against the Pretender, and said nothing about affirma- tions, and that a man of such rank would expect a large salary.
In October, 1703, eight Assemblymen from each county of Pennsylvania, and two from the City of Philadelphia, were chosen; they met, and elected Lloyd as Speaker, and made the disunion of the Province from the Territories an accomplished fact. These Assemblymen were: Nicholas Pyle, John Bennet, Andrew Job, David Lewis, Nathaniel Newlin, Joseph Baker, Robert Carter, Joseph Wood, William Biles, Joseph Growdon, Tobias Dymmoke, Richard Hough, William Paxton, Jeremiah Langhorne, Joshua Hoopes, Thomas Stevenson, Rowland Ellis, Nicholas Waln, Samuel Richardson, Isaac Norris, David Lloyd, An- thony Morris, Samuel Cart, Griffith Jones, Joseph Will- cox, and Charles Read.
Although Griffith Jones refused at first to do more in the way of qualifying than promise allegiance to the Crown and fidelity to the government, yet in due time all the twenty-six representatives signed the confession
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of faith, declarations, test, &ct., as in the Act of Parlia- ment of 1 W. & M. c. 18.
The Council construing the commission to themselves as not giving power to enact laws, the Assembly re- solved to adjourn until 3mo. (May) 1, contending for the right to sit upon their own adjournment. The result was that the Assembly adjourned until that date, unless sooner called, and the Council declared it pro- rogued to the same time: but the dispute gave rise to a project to establish the House's right by a law.
Evans published his commission in Philadelphia on 12mo. 3, 1703-4, having arrived the night before, and duly took the oaths, the least fitted by experi- ence of all the persons selected by the Penns for the office, and, as it turned out, the most discreditable in private life. To intemperance, which was soon the topic of common talk, there was added in time an item of seduction. The great Quaker had been deceived; for William Penn, distracted as he may have been with financial and political troubles in England, and im- portant as it was to fill the vacancy quickly, was too wise knowingly to send as his representative one whose loose living would shock the staid people of the colony, and give a handle to the anti-Proprietary faction. Apart and aloof from the Churchmen were some per- sons resentful against or distrustful of Penn who were rigid Quakers, and would appeal to the ideal of a land where good men administered good laws.
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