USA > Pennsylvania > History of proprietary government in Pennsylvania > Part 30
Note: The text from this book was generated using artificial intelligence so there may be some errors. The full pages can be found on Archive.org (link on the Part 1 page).
Part 1 | Part 2 | Part 3 | Part 4 | Part 5 | Part 6 | Part 7 | Part 8 | Part 9 | Part 10 | Part 11 | Part 12 | Part 13 | Part 14 | Part 15 | Part 16 | Part 17 | Part 18 | Part 19 | Part 20 | Part 21 | Part 22 | Part 23 | Part 24 | Part 25 | Part 26 | Part 27 | Part 28 | Part 29 | Part 30 | Part 31 | Part 32 | Part 33 | Part 34 | Part 35 | Part 36 | Part 37 | Part 38 | Part 39 | Part 40 | Part 41 | Part 42 | Part 43 | Part 44 | Part 45 | Part 46 | Part 47 | Part 48 | Part 49 | Part 50 | Part 51
In December 1715, an attempt was made to wrest from Penn the possession of the Lower Counties. Lord Sutherland, a prominent courtier, petitioned the king for a grant of the terri- tory. He based his request on a debt of £20,000 which the
1 Col. Rec., ii, pp. 423-426.
2 Penn and Logan Corresp., ii, pp. 303, 305, 315.
3 Ibid., p. 325. 4 Ibid., p. 339.
349
IN PENNSYLVANIA
349]
crown owed to him, on his zeal and activity for the Protestant royal succession in England, and on his services in Scotland during the recent rebellion. He also called attention to the fact that half of the profits, which by the deeds of enfeoffment should have been paid to the Duke of York, and consequently to the crown, had not been so paid. If the crown did not see fit to make him a grant of the Lower Counties, he desired that he might be given the receipts which were the property of the crown. The petition was referred to the attorney general and solicitor general." The crown lawyers gave a long opinion, the object of which was to prove the validity of the title of the crown to the region in question. In spite of the opposition of the mortgagees of the province, the title of the crown was de- clared good, but before any royal grants were made, a decree to that effect should be issued by the court of chancery.2
The news of this petition from Lord Sutherland caused fear in the Lower Counties lest private rights should be disturbed. Therefore in 1717, the inhabitants of that region sent to Gov. Keith an address, stating their apprehensions in this matter, since the settlers there had obtained the larger part of their land from Penn and the governors of New York. They asserted that their own interests and those of the proprietor were so closely interwoven, that a separation would involve their de- struction. Hence they expressed a willingness that the two sections should be again united.3 Their address met with no response from the assembly of the province, but the ambitious projects of the governor were thereby furthered. With the concurrence of the assembly of the Lower Counties, he in- tended to pass a bill for remitting the arrears of quit-rent. On account of objections offered by the commissioners of property, however, he was unable to execute his design. He used a seal from which the name of Penn was omitted, and in
1 Breviat of Evidence, Penn and Baltimore, p. 64.
2 Chalmers, Opinions of Eminent Lawyers, i, pp. 40-56.
3 American Broadsides.
350
PROPRIETARY GOVERNMENT
[350
1724, by a charter issued in the name of the king, erected Newcastle into a city, with the power of sending representa- tives to the assembly. He excluded Quakers from office by compelling them to qualify by oath. He even endeavored to persuade the Lower Counties to draw up an address to Lord Baltimore. Factions immediately arose. A paper was circu- lated again broaching the plan of making the Lower Counties subject to the immediate jurisdiction of the crown. But when it was learned that Lord Sutherland was renewing his applica- tion for a grant of the Lower Counties, these schemes came suddenly to an end. If his wishes were complied with, there was a possibility that the inhabitants might be held account- able for the arrears of quit-rent. To quiet the clamor of the people, Gov. Gordon made Newcastle once more a town, and assured the inhabitants of the Lower Counties that the pro- prietors would do all in their power to prevent the grant to Sutherland from being made. The younger Lord Suther- land, however, continued for some time to urge his father's claim, and the proprietors dreaded lest the king might lend it a favorable ear.2 But their fears proved groundless, and the territories continued united to the province through the com- mon executive.
1 Penn MSS., Offic. Corresp., i and ii, J. Logan to John Penn, Feb. I, and July 24, 1726 ; Letters from Gov. Gordon to John Penn, 1726, 1727 and 1728.
2 Ibid., Corresp. of the Penn Family, John Penn to T. P., July and Sept., 1733; Jan. 24, and March 4, 1734.
CHAPTER VII
THE OATH AND THE AFFIRMATION
AMONG the many tenets of the Quakers, the one which concerned the taking of an oath was probably the most prominent. The injunction of Christ, "Swear not at all, but let your communication be yea, yea, and nay, nay," was accepted literally by the Quakers and incorporated into their creed. It was therefore unlawful, they believed, for Christians to assume the obligations of an oath. A simple affirmation of the truth or falsity of any statement, they thought, was sufficient. But the reverential character attaching to an oath might often deter a man from committing perjury, while a simple affirmation, no matter how solemnly made, might not serve to elicit the truth. Though the Quaker affirmation among the sect itself might prove sufficiently binding, a person who was not a member of the sect, if given his choice of taking an oath or an affirmation, might not feel himself bound by the affirmation. A positive means of securing accuracy of infor- mation, allowing for the defects common to humanity, was therefore necessary for the preservation of the colony. To those who believed that giving of testimony, serving in office, or performing of other civil and political duties should be based on a simple affirmation to carry out the trust reposed in them, an affirmation should be allowed. To those on the other hand who were not conscientiously opposed to the taking of an oath for such purposes, that privilege also should be granted. It must be remembered, however, that for a Quaker magistrate to administer an oath was as inconsistent with his creed as for him to take one. Hence, when Pennsylvania became some-
351]
351
352
PROPRIETARY GOVERNMENT
[352
thing more than a community of Quakers, and people of other moral and religious persuasions began to make their presence felt, a conflict was inevitable.
In England, when the royal charter was granted to Penn, the Quakers, so long as they refused to take the oath of su- premacy, or to conform to the requirements of the secular and ecclesiastical law, were suspected of being either Catholics or traitors. On this account they were denied civil and political rights, and made liable to heavy fines and other penalties.I For the holding of office and giving of testimony, an oath was indispensable. The charter declared that no laws should be enacted which might be repugnant to those of England. What, then, were the Quakers in Pennsylvania to do? They must either prove false to their religious principles by allow- ing the usual oaths to be administered in the courts of the province, or, by enacting laws allowing an affirmation in lieu thereof, subject those laws to the danger of repeal by the crown. But they chose rather to remain consistent, and en- acted laws which were most in harmony with their religious predilections. It must be remembered that liberty of con- science meant to the Quaker not only that his civil status should not be affected by his opinions, but that he might per- form without molestation those acts which his religion com- manded, and refrain from those which it forbade.
According to the provisions of the "Great Law," passed at Chester in December, 1682, the requirement for the giving of testimony was that the witness should solemnly promise to speak the truth, the whole truth, and nothing but the truth. In case any person so called to give evidence should be afterwards convicted of wilful falsehood, that person should " suffer and undergo such damage or penalty as the person or persons against whom he or she bore false witness, did or should undergo, and should also make satisfaction to the party
1 See 13-14, Charles II., chap. i. An act for preventing mischiefs that may arise by certain persons called Quakers refusing to take lawful oaths.
353
IN PENNSYLVANIA
353]
wronged, and be publicly exposed for a false witness, never to be credited again in any court, or before any magistrate in the said province." Again, it was enacted that all persons employed in the service of the government, as well as all electors, should be " such as profess and declare they believe in Jesus Christ to be the Son of God, the Saviour of the world." Moreover, all officers and electors should subscribe the following decla- ration : "I, A. B., do hereby freely acknowledge and sol- emnly declare, and promise fidelity and lawful obedience to William Penn, son and heir of Sir William Penn, deceased, and his heirs and assigns, as rightful proprietary and gov- ernor of the same, according to the king's letters patent, and deeds of grant and enfeoffment from James, Duke of York and Albany ; and that I will never act or do by word or deed, directly or indirectly, anything, nor consent to, nor conceal any person or thing whatsoever, to the breach of this solemn engagement."I The omission of any mention of allegiance to the king was remedied by an act passed the fol- lowing year.2 In the succeeding assemblies all these provis- ions were expressly ratified. But in 1693, when Fletcher the royal governor assumed control, a serious difficulty presented itself. In 1689, an act of parliament, I William III., chap. 18, provided that all Protestant dissenters, in order to escape the penalties against non-conformity, should take an oath of fidelity and allegiance to the crown, and of belief in the Trinity and in the Scriptures. Quakers, however, were allowed, in lieu of an oath, to take an affirmation in this form: " I do sincerely promise and solemnly declare before God and the world," etc. But in the commission to Fletcher it was stated that the members of assembly, before entering upon their duties, should take the oaths and test prescribed by the act of parliament. When Fletcher met the assembly the majority of its members remonstrated, not against taking the declara- tion and test, but against confirming them by oath. There-
1 Charter and Laws of Pa., pp. 108, 116, 122. 2 Ibid., p. 143.
354
PROPRIETARY GOVERNMENT
[354
upon six of them took the oaths. The remaining fourteen re- fused " for conscience sake" to do so, and were allowed by the special grace and favor of the governor to subscribe the " dec- laration of fidelity," and " profession of the Christian faith," as allowed to Quakers in the act of parliament.I
Notwithstanding this action of the governor and assembly, among the fifty acts which Fletcher, at the request of the as- sembly, later agreed to confirm, were those concerning liberty of conscience, and the qualification of officers and electors. But in the frame of government of 1696 the act of parliament was again recognized. It was enacted that, in all cases where a person could not for conscience sake take an oath, his affir- mation should be just as valid. False affirmation should "incur the same penalty and forfeitures as by the laws and statutes of England are provided against persons convicted of wilfull and corrupt perjury." It was provided, however, that no person, who by the acts of parliament for trade and naviga- tion was required to take an oath, should be permitted to take an affirmation instead.2
Two years prior to this, when Penn was restored to his government, among the promises he made to the king and queen was this, that he would take the declaration of fidelity to the crown, as provided in the act of parliament.3 Hence during his administration, 1699-1701, the members of as- sembly and other officers " took a solemn attestation of alle- giance to King William III, and fidelity to William Penn, pro- prietary and governor, and subscribed the declar- ation appointed by parliament."4 At the same time Penn suggested to the assembly the re-enactment of the provisions of the law of 1682. The suggestion was adopted in a law passed in 1700 concerning the qualification of officers, and later incorporated in the charter of privileges.5
1 Col. Rec., i, p. 398. 2 Charter and Laws of Pa., pp. 247-249.
3 N. Y. Col. Doc., iv, pp. 108-9. 4 Col. Rec., ii, p. 35.
5 " All persons who * * * profess to believe in Jesus Christ, the Saviour of the
355
IN PENNSYLVANIA
355]
By 7-8 William III, chap. 34, and 13 William III, chap. 4, parliament had enacted that the form of the affirmation to be taken by Quakers in lieu of an oath should be as follows : "I do declare in the presence of Almighty God the witness of the truth of what I say ;" but it was expressly provided that they should not be allowed to give evidence in criminal cases, to serve on juries, or to bear any office or place of profit in the government. On January 21, 1703, the Board of Trade sent a representation to the queen, stating that judges and other officials in Pennsylvania and the Lower Counties should be obliged to take the oath or affirmation directed by the law of England, and that all persons who were willing to take an oath in any public or judicial proceeding, should be al- lowed so to do. If the judges refused to administer it, their proceedings should be null and void. An order in council to this effect was immediately issued, and sent to Robert Quary.I The provincial council, however, on which at the death of Gov. Andrew Hamilton, in March, 1703, the govern- ment had devolved, was somewhat uncertain as to its course of conduct. It sent to Quary and several other persons who had been appointed by a dedimus potestatem from King William to administer to the governor the oaths prescribed by parliament for the observance of the navigation acts, and requested them to administer to it the oath or affirmation as the queen's order had directed. But on the ground that in a former instance they had been unfairly dealt with,2 the
world, shall be capable, notwithstanding their other persuasions and practices in point of conscience and religion, to serve this government in any capacity, both legislatively and executively, he or they solemnly promising, when lawfully required, allegiance to the king as sovereign, and fidelity to the proprietor and governor, and taking the attests as now established by the law made at Newcastle in the year 1700, entitled, ' an act directing the attests of several officers and min isters." Ibid., P. 57.
1 Breviat of Evidence, Penn and Baltimore, p. 62; Col. Rec., ii, p. 89.
2 On his accession to office in 1701, Gov. Andrew Hamilton informed the coun- cil that he had conferred with the commissioners named in the king's dedimus
356
PROPRIETARY GOVERNMENT
[356
commissioners refused, unless they were first given possession of the document. To this the council acceded; but shortly after the commissioners returned it with the statement that they did not believe themselves empowered to administer any affirmations. After much persuasion, the collector of the customs was induced to administer the oath to two members of the council, and they in turn administered to the others the affirmations prescribed by parliament." But this did not bring the trouble to an end. The assembly in 1703 induced the council to give its members the necessary qualifications for office. Thereupon all the members of assembly " subscribed their attestations in the words of what is required by the oaths enjoined by the law of England." One member, however, was willing to take only what was directed by the charter of privi- leges and the laws of the province, viz., "allegiance to the king, fidelity to the proprietary, and obedience to the laws." After some discussion the other members also thought that, by what
potestatem, about administering to him the necessary oath. They insisted that the document should be placed in their keeping, " otherwise they were unwilling to touch with, or be concerned in it." After some discussion it was resolved, " that, because the said dedimus is to six persons, or to any five of the council with the king's collector of his customs, * * * who by virtue thereof have equal power with the commissioners to administer the said oath, and because it is to continue in the government from time to time, to be administered to each gov- ernor that hereafter shall be appointed, for which reason the council seems to be named as a body politic that shall have power to administer the said oath in time to come after the decease or removal of the commissioners named, and be- cause the said commissioners are * private men, it may be uncertain where to search for * * * the said instrument upon their decease or otherwise when there shall be occasion, and by that means the succeeding governors be left exposed," the dedimus should be given to the master of the rolls to be used as occasion might require. But the commissioners adhered to their opinion and would not even promise, if the instrument were entrusted to them, that they would administer the oath. Thereupon the governor obtained excellent legal opinion in favor of the view of the council, and in April, 1702, the oath was administered by certain members of that body and the collector of the customs. Col. Rec., ii, pp. 62-63, 68-69.
1 Ibid., pp. 89-96.
357
IN PENNSYLVANIA
357]
they had done, they had exceeded what was really required of them ; and asked the council to state whether or not the con- tention of the recusant member was correct. The council re- plied that, as allegiance to the crown was required, the law of England was the most proper to direct how the allegiance should be declared; and that, since the rest of the members of assembly had conformed to the act of parliament, the recusant member should do the same.I
Shortly after this the repeal of the act of 1700 was announced. It was stated by the attorney-general that in the act no regard was paid to the Christian religion. No one can tell, said he, how far " the conscientious practices allowed by this act may extend."2 Thereupon, the assembly sent to Gov. Evans a bill providing that a solemn affirmation should be as valid as an oath. The governor and council decided that, because the act was contradictory to the queen's order commanding oaths to be ad- ministered to persons who were willing to take them, an amend- ment should be added, that the act should not be in force until the queen gave her consent. In December, 1705, another bill of the same tenor was presented to the governor, and received the same answer.3 The assembly replied that it had endeavored to make the bill conformable to the queen's order, and that an impartial view of it would establish the fact. The provincial attorney-general was thereupon requested to give his opinion. He declared that " in capital cases there was no power granted, or could be granted by the royal charter, to make a law by which a man should be tried for his life, but by a jury sworn according to the law of England." Then the governor, coun- cil and assembly held a conference. In the course of the dis- cussion it was resolved that the governor and assembly were empowered to make a law that, in all cases, except where the acts of navigation required otherwise, an affirmation should have the force of an oath. It was urged that, when the at- 1 Col. Rec., ii, pp. 106-108. 2 Pa. Mag. Ilist., ix, p. 393. 3 Col. Rec., ii, pp. 170, 219.
358
PROPRIETARY GOVERNMENT
[358
torney-general of England had examined several laws of the province which had altered materially the English procedure in capital cases, he had not objected to them in point of law. Moreover, if those who were conscientiously opposed to taking an oath were excluded from jury duty, " it would prove a very great insecurity to the people ; for in country places a grand and petty jury could not be made up without them, unless they should almost wholly consist of Swedes and other foreigners." The assembly claimed that the bill as offered gave liberty to all persons who could take an oath to receive it from a magistrate that could administer it. Those who could not take an oath were given the privilege of an affirmation. The governor ob- jected that by the provisions of the bill an oath could not be administered in all cases, even if the party were willing to take it ; because it was enacted that, where a magistrate could not administer an oath, the affirmation should be considered as equivalent ; but the queen's order required that an oath should be administered to all persons who were willing to take it. The assembly replied that, since the province was inhabited chiefly by Quakers, who could neither take nor administer an oath, unless some of them were in the position of magistrates, suitable per- sons for that purpose could not be found. The fact that the queen's order allowed an affirmation to be as good a qualification of a magistrate as an oath seemed to imply this. But if the order should require "these persons to do what is certainly known beforehand they are incapable of, it would carry an incongruity with it which is not fit to be imagined of anything proceeding from the royal authority, and the consequence would be to re- move out of office all those of that profession, or at least to in- capacitate them * * to discharge their duties therein." The
practice in the courts, said the assembly, was that, if any judge on the bench could administer an oath, he did so. But the hard- ship lay in the fact that, if any offender were brought before a judge whose conscience would not allow a compliance with a request that any evidence should be sworn to, the queen's order
359
IN PENNSYLVANIA
359]
would make void the proceedings, and a failure in justice would result. The bill was designed therefore not to be dis- pleasing to the ministry, or in opposition to the queen's order, "which was certainly intended to bring matters to a greater regularity, and not to involve the place in reason of its peculiar circumstances into the greatest perplexity." At length the governor decided to pass the bill, but with the amendment that it should not be in force till after a certain time, during which it might be presented to the queen or to the Board of Trade. The amendment was agreed to by the assembly, and the governor in January, 1705-6, assented to the measure under the title of "An act directing the qualifications of all magistrates and officers, as also the manner of giving evidence."I But at the same session a law entitled, " An act to ascertain the num- ber of members of assembly, and to regulate the elections" was passed, which provided that every member of assembly, before entering upon his duties, should make the declaration of abjur- ation, allegiance, and supremacy, and the profession of faith as directed by I William III. chap., 18. The assembly then sent an address to the queen requesting her to confirm the acts.
What was the opinion of William Penn with regard to these proceedings of the crown and of the assembly ? In a letter to James Logan, October 4, 1703, he wrote, "Why should you obey any order obtained by the Lords of Trade or other- wise which is not according to patent, or law here, or the laws in your own country which are to govern you until re-
pealed ? * If you will resign the laws, customs, and usages, tamely, instead of persisting till you see what becomes of the laws now with the attorney general, I cannot help it, but a decent refusal were wisest."2 After the act of 1706 had been passed, Logan wrote to the proprietor, "Some fear thou wilt not favor it because it introduces the affirmation as by act of parliament, and takes notice of the queen's orders, but I am humbly of opinion that, if thyself were now here, and could
1 Col. Rec., ii, pp. 225-232. 2 Pa. Mag. Hist., ix, p. 401.
360
PROPRIETARY GOVERNMENT
[360
hear the same arguments that have been used, * * thou wouldst be pleased to think nothing that is done in relation to it unadvisable. A less security than that affirmation among so very loose a people as in many places here shel- ter themselves under the name of a profession, would be very dangerous; and the compliment that is paid to the order can injure nothing, but serve for oil to make it go the more easy."I In another letter written shortly after, he stated that the mem- bers of the council who belonged to the Church of England voted against the bill. " However unfit," said he, " were that affirmation for Friends in England, yet here, where such a rotten or insensible generation shelter themselves under the name, there is a necessity for a greater security."2 But the proprietor, although recognizing in some measure the neces- sity for the observance of the order and of the enactments of parliament, deplored the departure that had been made from his principles. " I am grieved," wrote he to Logan, " to think that you ever gave way to any other affirmation than that ap- pointed by law in the province, by which you have given away a most tender point not easily recoverable. My regard to the queen is known almost to partiality, but I shall never obey her letters against laws into which she may be drawn by interested persons, or those that would make their court at other men's cost, and go upon private piques; but the great blower up of these coals, the Bishop of London, is himself under humiliations."3 Again, March 12, 1709, he wrote to Logan, " I do abhor the new affirmation, * * * and if I can I will waive it, for I would rather Friends were never in power, so our old affirmations were confirmed for Friends and others scrupulous, and oaths for the rest; unless a short way of bonds penalty for truth of what is said were made practicable and acceptable, as I have often thought might be."4
Need help finding more records? Try our genealogical records directory which has more than 1 million sources to help you more easily locate the available records.