USA > Pennsylvania > Colonial records of Pennsylvania, Vol. II > Part 68
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4. This is answered in the former.
5. I differ from the Assembly in ye Case of Qualifications a dedi- mus to qualify persons according to law, will it's to be hoped keep me safe, & answer the ends of Govmt. in that case.
6. The messengers said not one word to me relating to your order. The Provincial Judges also being called on Yesterday by the House to give their reasons why they did not proceed to the Tryal
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Hugh Pugh & the other Criminals now Confined in Chester Goal, for the murther of John Hays, rendered the following reasons.
In obedience to the order of the House of yesterday, that the Judges of the Supreme Court do lay before the House the reasons why the Tryals of the Criminals now in the respective Gaols of this Province are delayed.
We the said Judges humbly offer this reason, that observing a question has been raised, whether by extending to America the late act of Parliament for the affirmacon allowed to those Called Quakers, in Great Britain, all ye Exceptions in ye sd. act are not also extended hither, and finding that our Govr., from whose Commissns. our Powers are derived, has entertained the opinion that they are so extended as on several occasions he has Publickly declared it. We cannot think it prudent in us to proceed, by virtue of our Commis- sion, in opposition to that opinion in so tender a point as the lives of his Majesty's subjects.
WM. TRENT, G. ROCHE, JN. DICKINSON.
The same Day the House, by J. Langhorn, & another member, in a message from the House, brought the Govr. ye following return to his message, sent by R. Assheton in ye morning.
May it please the Govr :
The Assembly having taken into Consideration thy speech, do find ourselves much discouraged from preparing any bills to offer the Govr. for passing into Laws, by the knowledge we have of his opinion concerning some of those Laws wch are already made, wch seems to render them of no use to the Countrey, nor can we think of such suitable returns as the Govr. seems by his speech to expect, when a stop is put to the Execution of our Laws, and such violence offered to our Constitution. The House has also considered the Govrs. answer of this day to our Resolves presented to him last night, & since as the Govr. has been pleased to Inform us thereby, that the opinion of the Council is the same with that of this House, so that the Govr. seems to stand singular therein. We hope the Govr. upon further Consideration will find reason to alter his opinion & Concur with this House in the said Resolves, more particulary that the act of the 1st of K. George, is not a negative to our Law for an affirmation here.
But if he should still think fitt to hold the contrary opinion, that he would lay before this House his reasons or authorities in Law for the same, & that he would be pleased to give this House leave & op- portunity to Debate the same before him, with any such persons as have advised the Govr. therein.
October 19th, 1716.
Robert Assheton received from Richd. Birmingham another sealed paper, which he was directed to deliver to the House, of which a Copy follows,
GENT :
I am not surprized at the first paragraph of your message of yes-
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terday, wch I thus answer with the rest, to use the language of former Assemblys, & some of the Council, I am given to understand that you did not Design to make Laws nor raise money this Session, but upon terms inconsistent with my duty & safety to Comply with.
'Tis not to be wondered at that the Council should be of opinion with the Assembly, since of 4 of wch the Council consisted, 3 of them are of the people called Quakers, & the other, I suppose, durst not dissent from them.
I cannot recede from my opinion relating to the act of the 1st of K. George, till I am otherwise directed from home.
I cannot agree to a Conference where I must be without a Law- yer, & under the disadvantage of six & twenty to one, for I assure you, Gent., In this affair I am Governed by my own reason, & If I had advisers I should not bring them to a Conference where 'tis probably they might see me treated with indignity thro' their sides.
And the same day ye Govr., by Clemt. Plumstead & J. Langhorn, from ye House received ye following :
To Charles Gookin, Esqr., &c.
May it please the Govr :
This House being under a deep concern upon all occasions to shew their Loyalty as faithful subjects to his Majesty, K. G., can by no means think themselves discharged of their duty without further en- quiry into the truth of the report which they have recd., and made the Govr. acquainted with this morning, wch affects their Speaker & another person bearing Considerable offices & trusts in this Govmt ; and finding the Govrs. answer to our last message concerning the same not satisfactory, Do crave leave to acquaint the Govr. that this House doth intend immediately to resolve into a Committee of the whole House, in order to inquire into that matter; and that the said Committee will be desirous to receive from the Govr., or any other person, any information concerning the same, in Order to proceed to ye extent of what is their Duty, and purge this House of any mem- ber or members thereof that may appear, or shall be proved guilty of disloyalty to the King, or disaffeccon to his Govmt., under which we unanimously declare ourselves Extremely happy and well satis- fied.
November the 4th, 1716.
The Govr. received by William Trent, David Lloyd, John Swift, Benjn. Vining & ye Speaker, Richd. Hill, the following Representa- tion, a Copy of which was sent into each County, & also to England, and was in these words.
A Representation of the Freemen of the Province of Pennsylva- nia, in General Assembly mett, the 3d of the Ninth Month, 1716.
To Charles Gookin, Esqr., &c.
May it please the Governour :
When our Proprietor and Govr. in Chief first obtained a Grant of this province from the Crown, & a numerous Colony of indus- trious People settled therein, we are well assured it was his Inclina- tion as well as visible Interest to render them as safe and Easy as possible under his administration.
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And as his Religious perswasion as a Dissenter from ye Estab- lished Church of England was well known, and therefore those of the same Profession made a great part of the first adventurers with him, it cannot be doubted but that he would ever think himself obliged to provide that they should enjoy in Pennsylvania at least equal ease & Privileges with any other English subjects of the same Rank in any of the King's Dominions.
Accordingly when necessitated to be absent from us, as he has for the most part been, he took care from time to time to appoint such persons to be his Deputies in the Govmt., in whose moderation & Tenderness towards his Friends as well as Loyalty to the Crown & Justice to all its subjects he believed he might confide.
When the Govr. therefore first brought over the Proprietors Com- mission of Deputation for the Govrmt., we could not doubt but that, being ye proprietors Choice & acting solely by Powers derived from him, He would steadily pursue the measures that had generally been taken from our first settlement, & Endeavour to make all the subjects of the Crown under the Proprys. Govrmt. equally secure & Easy.
On this Expectation, Confirmed by the Proprietors Letters of Recommendation, the Assembly's not doubting the Govrs. good Intentions towards them, feebly Discharged what was incumbent on them, and 'tis hoped in no small measure to the Govrs. satisfaccon.
Nor while the Proprietors health & former abilities happily con- tinued, had the Inhabitants much reason to complain, but that the Govr. made the Proprys. Directions from home, as far as they could be obtained, & the advice of those the Propry. had intrusted here, ye Rule (in a great measure) of his Conduct in what related to the Propry's. Interest or Govmt., & to the Privileges of the People.
But whether it being now owing to the Discontinuance of those orders & Directions wch has followed on the late great and Melancholly change in ye Proprietors health, or to some unhappy advice of others, or to any new found views, we know not : But this House of Repre- sentatives soon after their first meeting, finding the Govr. had at Length so far lost sight of the obligations he lay under to his princi- pal & Constituent, as to enter on measures inconsistent wth his Interest and our Constitution, & the Liberties of the People, We judged it our Indispensable Duty to apply to the Govr. for Redress, who declaring his opinion to be such as would not admit of any : We Desire with Due submission that he would be pleased to suffer the Reasons of that opinion to be argued before him ; But finding to our Trouble that all our Endeavours are in vain, We think ourselves obliged in the discharge of the trust Reposed in us, fully to represent the fatal Consequences as well unreasonableness of those measures, to the End that a proper relief may be obtained, without which the Greater part of the Inhabitants of this Province must be rendered miserable, which we humbly offer as follows :
Those who accompanied the Proprietor in the settlement of this Colony, being Chiefly (as has already been observed) of those called Quakers, who lying under some hardships in their native Countrey, because for Conscience sake They could not comply with the Laws
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there for taking oaths, they expected that by the virtue of the powers of Legislation Granted by the Crown to the Proprietor & them, they might after their Hazard & toil of their Removal hither, be Capable of Enjoying the Privileges of English Subjects, without violation to their Religious Principles.
Accordingly the Proprietor & Assemblys provided Laws by wch those people might be enabled to hold any offices, (there being but few others at that time to fill them,) or give evidence in any case whatsoever.
Some disputes afterwards arising on this subject, the late Queen, by her Order in Council, Dated the 21st of Janry., 1702, was pleased to extend to this Province the affirmation allowed to Quakers in England, by ye 7th & 8th of Wm. the 3d, not only for the Purposes intended by that in England, but also for the Qualification of Magis- trates & officers, and the same being from thence applied to other cases, this order on the repeal of our own acts, in a great measure supplied what was necessary on this point for the administration of Justice.
But the act of parliament itself being near its Expiration, it was found necessary, as well on that as some other Considerations, to establish by an act of this Province the Qualifications of Officers and the manner of giving evidence by affirmation ; And ye Govr. (upon the Assembly's performing the Conditions proposed them,) passed acts for that as well as other purposes, to answer the Exigen- cies of the Governmt.
That the said affirmation act should have full force according to the intention of them, is of such importance to ye Ease & security of the whole province, that it could scarce be supposed any person amongst us, who professed even the most slender regard to the Peo- ples Welfare, would attempt to deprive them of the advantages thereof.
It is therefore the more surprizing that the Govr. himself, from whose station & the Trust reposed in him by our Proprietor the most tender concern for the safety & well being of all his Majesty's sub- jects under his Care might be reasonably expected, should be the principal if not the first person in his Govmt., who would render the intentions of those acts void to us, tho' passed by himself into Laws so lately before by Publickly declaring his opinion in such a manner as would render the said acts repugnant to the Laws of England & repealed by ye act of Parliament of the first of his present Majesty, In pursuance of wch opinion he has refused to qualify such persons for offices that could not take the Oath according to the Law of England.
The consequence of which is, that as no Quaker in Great Brittain, is Qualified or permitted to give Evidence in any Criminal Causes, or serve on any Juries, or bear any office or Place of Profit in the Govrmt., so should the same hold in this Colony, not only ye greater Number of ye first adventurers, with their Descendants of the same Profession, are to be wholly Excluded from having any part or share in the administration of Justice & Execution of the Laws of the
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Countrey ; (which as it would be a general inconveniency, so it would throw the burthen too heavily on a few of the Inhabitants,) But wt. is of no less importance for the security of those of other Professions, the greatest outrages & Barbarities against any person may be com- mitted in the face of another number of Quakers, & the malefactors, tho' brought to tryal, must escape with impunity for want of Legal Evidence, if that of Quakers is not so to be accounted ; of which the Govr. cannot forget a very memorable instance, when at a time that unhappily there was no act of the Province for an affirmation, but the Queen's Order was thought sufficient during that interval for all but Capital Cases, its presumed a murtherer Escaped the sentence that was due to him for want of such Evidence as was Esteemed Legal, tho' more than One Quaker appeared in Court who were wit- nesses to the fact.
But besides these inconveniences however Great, there remains one further Consequence of that Construction of the act, wch perhaps the Govr. is not sufficiently advised of which is, That if no Quaker in Great Brittain, nor the Plantations, Can bear any Office or Place of Profit in the Govmt., some may Judge it a Natural Inference that the Proprietor himself is equally affected by it, and then all Power derived from him, as well those lodged in the Govr. by his Deputation, as the magistracy and inferiour officers fall together.
Having thus far pointed out the Destructive Consequences of that opinion, should it fully take Place in this Province, We Judge it in the next place Incumbent on us in Duty to the Govr., & for the Dis- charge of the trust reposed in us by those we represent, to offer to the Consideration of the Govr. & all others Concerned, such reasons as have occurred to us in our Enquiry into this Head, which we hope with submission will render it incontestably Evident, that the affir- mation acts of this Province are in full force, & are neither repealed nor affected by any act of Parliament that has Come to our know- ledge, but that the Govr. is obliged to take Care that the same be equally with any other act put duly in Execution.
By the same Royal Charter of King Charles the Second, by wch this Province, with Licence to transport an ample Colony thereunto was Granted to our Proprietor & Govr. in Chief, the said King Grants to him and his Heirs, &c. Power to make Laws Jointly with the People, and direct the force and Limitations of them in the fol- lowing words as they stand in divers parts of the said Charter, but are here Collected, vizt. :
We Reposing Special Trust & Confidence in the fidelity, Wisdom, Justice & provident Circumspection of the said William Penn, for us, our heirs and Successors, do grant free, full & absolute Power, by virtue of these presents to him and his Heirs, & to his & their Deputies & Lieutenants, for the Good & happy Governmt. of the said Countrey, do ordain, make, enact, & under his & their Seals, to Publish any Laws whatsoever for Raising of money for the Pub- lick uses of the said Province, or for any other end, &c., By and with the advice, assent, & approbation of the freemen of the said Countrey, or the Greater part of them or their Delegates, &c. ; And
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the same Laws duly to Execute unto & upon all People within ye said Countrey & Limits thereof. Which Laws so as aforesaid to be Published, our Pleasure is, & so we Enjoyn, Require & Command, shall be most absolute & available in Law, and that all the Liege people & subjects of us, our Heirs & Successors, do observe & keep the same inviolably in those parts so far as they Concern them, under the Penalties therein Expressed or to be Expressed : Provided nevertheless, that the sd. Law be Consonant to Reason, & be not repugnant or Contrary, but as near as Conveniently may be agreeable to the Laws, Statutes and Rights of this our Kingdom of England. And our further Will and Pleasure is, that the Laws for Regulating & Governing of Property within the said Province, as well for the Descent & Enjoyment of Lands, as likewise for the Enjoymt. & suc- cession of Goods & Chattells, & likewise as to Felonies, shall be & Continue the same, as they shall be for the time being by the Gene- ral Course of the Law in our Kingdom of England, until the said Laws shall be altered by the said Willm. Penn, his heirs or assigns, & by the Freemen of the said Province, their Delegates or Deputies, or the Greater part of them. And to the end the said Willm. Penn, his Heirs or other the Planters, Owners or Inhabitants of the said Province, may not at any time hereafter, by misconstruction of the Powers aforesaid, thro' inadvertency or Design Depart from that faith and due allegiance, which by the Laws of this Our Realm of England, they and all our subjects in our Dominions & Territories, always owe unto us, Our heirs and Successors, &c. Our further Will and Pleasure is, that a transcript or Duplicate of all Laws wch shall be so as aforesaid made & published within the said Province, shall within five years after the making thereof, be transmitted & Delivered to the Privy Council for the time being, of us our heirs and successors, & if any of the said Laws within the space of six months after, that they shall so as aforesaid, transmitted & Celivered, be Declared by us, our heirs or successors, in our or their Privy Council Inconsistent with the sovreignty or Lawful Prerogative, of us, our Heirs or successors, or Contrary to the faith and allegiance due by the Legal Government of this Realm from the said Wm. Penn or his Heirs, or of the Planters or Inhabitants of this Province ; and that thereupon any of the Laws shall be adjudged & Declared to be void by us, our Heirs or successors, under our or their Privy Seal that then and from thenceforth such Laws Concerning which such Judgemt. & Declaration shall be made shall become void, otherwise the said Laws so transmitted, shall remain and stand in full force according to the true Intent and meaning thereof.
Pursuant to these Powers the said acts of this Province for an affirmation were made and Published, and a Considerable part of the five years limited in the Charter is yet unexpired, the same have duly transmitted, nor have we heard any thing but that they are or may be well approved of, Having reason to hope that they contain nothing for which, according to the Tenour of the said Royal Charter, they ought to be Declared void; and therefore are of as full force as absolute & available, and to be observed & kept as inviolably as
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any Law whatsoever, that can be enacted in this Province, and ought accordingly to be as duly Executed by the Govr. to the full Extent thereof.
But the Govr. in answer to a Resolution of this House of the 18th October last, Which was that the Royal Charter makes the Acts of this Province most absolute and available in Law untill repeal'd by the King, is pleased to say : That He joins with the Assembly in this Resolve, Provided the Laws are not repugnant to the Laws of England; And by the following paragraph in the same answer, which is, That He allows the Laws of the Province had settled the Qualifi- cations of magistrates and other officers, until the Publication of the act of King George, relating thereto; He has at last thought fitt to Give so much under his hand as his opinion, the Natural Con- struction whereof is, that the said affirmation acts of this Province (being the subject then in hand) are repugnant to the Laws of Eng- land & Repealed by the said Act of Parliament.
But to this we humbly offer that if it must be termed Repugnant because it differs from or is not the same with the act of Parliament, then the Clause of the Royal Charter which Grants power to the Govr. & Assembly here to alter the laws of England for the Descent of Land, Enjoying Estates, & Punishing felonies in this Province, as is above recited from the said Charter, appears to be useless and in vain.
But it is further to be considered, that as the Term Repugnant always implys an absolute opposition or Contrariety in matter, it cannot be said, That an act of this Province, which enables those called Quakers to serve in office, upon Juries, & to be Evidences in all cases, the Circumstances of the Countrey requiring that it should be so, is contrary to an act of Great Britain, which enables them only to give Evidence in Civil Cases; these two Differ 'tis true, and and so it was Certainly Considered & expected at the time of the Royal Grant, that our acts might in some measure Differ from those in England, otherwise those of England would suffice, and no such power for altering them needed to have been Granted ; on the Con- trary, the act of this Province, pursuant to the directions of that Royal Charter, is as nearly agreeable as to our Conveniency may be to the Statue Provided for Quakers in Great Britain.
But the Govr. we presume, Could not intend by his answer, That this act at the time of passing it was repugnant to any of the Laws of England, tho' it differed from them ; For in that Case Cer- tainly He Could not have given it his sanction ; it must therefore be meant that it is become repugnant only since the supposed Publica- tion of the British act, wch He conceives repealed ; Or to state what can be alledged on that head in its full force and ye plainest terms it will bear; That the act of the first King George, Intituled an act for making perpetual an Act of the Seventh & Eighth years of the Reign of his late Majesty, King William the third, intituled An Act that the solemn affirmation & Declaration of the People called Qua- kers shall be accepted instead of an oath in the usual form, &c.,
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Extends to this Province the act of King William by these words, in the last clause of it, vizt :
Provided always, that so much of this act as relates to the affirma- tion to be made by ye people called Quakers, shall be Extended to that part of Great Britain, called Scotland, forever, and to the plan- tations belonging to the Crown of Great Britain for five years, &c.
Therefore, that as the Quakers are not permitted by that act in Great Britain to hold offices, serve on Juries, or be Evidence in Criminal Cases, so by its being extended to the Plantations, they are as effectually disabled there, and that all acts of this Province for Qualifying Quakers in these Cases, are by the Superiour Force of this Act of Parliament, Repealed and made utterly void.
But when the language of the Act itself comes to be considered, the whole seeming force of this objection will, we presume entirely disappear ; The Clause of Limitation in the seventh & Eighth of Willm. the third, is in these words :
Provided and be enacted : That no Quaker or reputed Quaker shall by virtue of this act be Qualified or permitted to give evidence in any Criminal causes, or serve on any juries, or bear any office or Place of Profit in the Govmt .; any thing in this act contained to the contrary in any wise, notwithstanding. Upon wch we conceive what Brigadier Hunter, Govr. under his Majesty, of the Province of New York & New Jersey, has, (in a Case parallel with ours,) ob- served in his printed Declaration on that subject, under the title of an answer to what has been offered as an argument against the vali- dity & force of an act of Assembly Entituled An Act that the solemn affirmation and Declaration of the people called Quakers, &c., passed in the Province of New Jersey, in the thirteenth year of the reign of Queen Ann, to be of such force as to be worthy our recital; In which after he has observed in General in the following words :
Into what a woful condition must the Plantations be plunged if such Laws as shall by a Legislature lawfully Constituted by virtue of Letters patent under the Broad Seal, be enacted for the good Govmt. & Ease of the subjects there, shall by implication or Con- struction be deemed to be repealed, &c. He is pleased to say, That act of Assembly is not so much as by implication Repealed, for the words in that act upon which they lay the stress of the argument are these : "Provided, that no Quaker shall, by virtue of this act, be Qualified, &c." now I know no Quaker, (continues that Gentle- man,) that pretends he is or can by virtue of that act be qualified ; but I believe every Quaker thinks that he is or may be Qualified, by virtue of an act of Assembly Intituled, An Act that the solemn affirmation & Declaration of the people called Quakers, &c., Passed in this Province & sent home, &c. ; It is as plain as words can make it, that that act of the 7th & 8th of K. Wm. has no negative, but upon itself, & Consequently cannot be alledged in Bar to any Laws already enacted in the Plantations, or even such as may be enacted. For by these Letters patent which give a being to this Government & Legislature, all such Laws as shall be enacted by the Govr., Coun-
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