USA > Pennsylvania > History of proprietary government in Pennsylvania > Part 31
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The opposition of the Episcopalians to the bill of 1706 con-
1 Penn and Logan Corresp., ii, p. 98. 2 Ibid., p. 187.
3 Ibid., i, p. 278.
4 lbid., ii, p. 339.
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tinued with great vigor. They sent a petition against it to the Bishop of London, who laid it before the Board of Trade.I The result was that the act was repealed by the crown. The attorney general stated that his objections to the law were, in the first place, that it allowed a deposition in writing of a person who was sick, or about to leave the province, to be good evidence. He declared that such evidence, even in civil cases, was rarely accepted in the courts of England, nor even then without the observance of a much safer method than the act had provided, " such paper evidence having with great reason always been disallowed in criminal proceedings, be- cause of the known benefit of cross-examining a witness." Secondly, as the provisions of the act were worded, any per- son who was willing to take an oath in a court of judicature, was not allowed to do so, if the court was composed entirely of Quaker judges. If there were others on the bench who were not Quakers, then the law enacted that the administering of an oath would be the act of an individual judge, and not of the court.2 The assembly thereupon sent Gov. Gookin a bill of similar tenor. He refused to pass it. The house com- plained that his refusal rendered the people very insecure in their persons and estates. "For," it declared, " the greatest part of the people here being such as conscientiously scruple an oath, and their evidence upon affirmation in criminal cases being rejected, murder though never so notorious and bar- barous being perpetrated in a crowd, if of Quakers only, or of such as are under the said scruple, may escape with impunity." The quarrels of this assembly with the governor on various mat- ters, however, caused at the next election a complete change of members.3 A bill more agreeable to the governor's wishes was
1 Penn and Logan Coresp., ii, p. 253; Mem. Pa. Hist. Soc., iv, pt. ii, p. 360.
2 Pa. Arch., Ist series, i, p. 156.
3 Col. Rec., ii, pp. 513-516. It is probable that the letter from William Penn, quoted at the close of chapter iv, was also instrumental in causing this change in the membership of the assembly.
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therefore enacted. It provided that persons who had conscien- tious scruples against taking an oath should be allowed to testify before the courts by solemnly promising to speak the truth. Magistrates and jurymen who had similar scruples could be qualified on their solemn affirmation to perform faithfully their duties, and any person who so wished might take an oath, or the form of affirmation in use in England, pursuant to the queen's order. False affirmation, however, should be punished the same way as perjury.I Two weeks later, March 14, 1711, the proprietor wrote to Gov. Gookin, " I am willing such an act should pass * that they shall think necessary for a fitting and requisite affirmation to be taken in evidence, and for qualify- ing officers, which I wish might be brought as near as may be to that passed in Col. Fletcher's time, and approved by the late king, but as 'tis absolutely necessary there should be some provision made in that case, which is not to be done here, nor anywhere but among themselves, it will be incumbent on thee to pass such a bill for that purpose as the house can agree to."2 The request of course came too late. The governor probably could not have complied with it, and had he done so, his efforts would only have failed, because the act was repealed by the crown in 1713. The attorney-general declared that the affirmations provided for differed materially from those enjoined upon the Quakers by the acts of parliament. He also laid stress upon the fact that the name of God was not mentioned, and that, contrary to 7-8 William III, chap. 34, a Quaker was allowed to give evidence in criminal cases, to serve on juries, and to hold office.3
As before, this repeal of a law which guaranteed to the Quakers their privileges, or rather what they believed to be their privileges, occasioned considerable hardship to them, and introduced obstacles into the procedure of many
1 Col. Rec., ii, p. 529; Bradford, Laws of Pa.
2 Mem. Pa. Hist. Soc., iv, pt. i, p. 210.
3 Pa. Arch., Ist series, i, p. 158.
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of the courts. To remedy these defects, in March, 1715, the assembly sent to the governor a bill entitled, "An act directing an affirmation to those who for conscience sake cannot take an oath." The governor and council called the attention of the house to the fact that the bills for the establishment of courts of judicature, which it had recently submitted to the governor, and the laws of England required oaths to be taken and administered by those who were con- scientiously free so to do. It was declared, moreover, that persons not of the Quaker persuasion were very dissatisfied with any form of affirmation that did not contain the name of God. Indeed, they had generally refused to act in conjunc- tion with Quakers when such an affirmation was used. It was pointed out that the bill as presented was substantially a re- enactment of the law just repealed. Hence the governor doubted whether the administration of justice would be thereby properly supported.1 The assembly then sent up another bill entitled, " An act for the ease of such as conscien- tiously scruple to take the solemn affirmation formerly al- lowed in Great Britain." But so great was the pressure brought to bear on the governor that he agreed to pass both acts. The preambles recited that, as William Penn and the greater part of the inhabitants, freeholders, and first settlers were Quakers who for conscience sake could neither take nor admin- ister an oath, laws suitable for the better administration of jus- tice had been made, but that, since the repeal of the last law, an entire failure of judicial proceedings had happened. As the majority of the inhabitants were, by their religious principles, opposed to taking or administering an oath, “ if so considerable a number are left incapable of serving king and country, either in the administration of justice or in serving on juries, too great a burden will fall on those who can take and administer oaths." Hence it was enacted that the following affirmation in all cases should have the validity of an oath, viz., " I do solemnly de-
1 Col. Rec., ii, p. 580.
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clare, in the presence of Almighty God, the witness of the truth of what I say." But there was no mention whatsoever of the power of taking or administering an oath.1
About this time the acts I George I, st. 2, chap. 6 and chap. 13, sec. 4, were passed by parliament, which extended to the colonies for five years the preceding statutes. On October 18, 1716, the assembly sent to Gov. Gookin the following reso- lutions : " That the royal charter makes the acts of this prov- ince most absolute and available in law until repealed by the king. That the laws of this province now in force have suffi- ciently settled the qualifications of magistrates, officers, etc. That the act of the first of King George relating to the affir- mation and declaration of the people called Quakers, etc., does not repeal or make void any of the laws of this province. That whosoever doth or shall persuade the governor to be of a contrary opinion, or to refuse the qualifying of persons pursu- ant to the said laws of this province, are enemies to the gover- nor and government." The council immediately concurred with the opinion of the house.2 But the governor held a differ- ent view. His motive may have been a sincere one. But the fact that he was not a Quaker, and that ever since the begin- ning of his administration he had been engaged in strife with assemblies composed almost entirely of Quakers, and usually headed by David Lloyd, may have impelled him to seize the opportunity to thwart his enemies. Furthermore, he was conscious of warm support from the members of the Church of England in the province.3 He believed that the laws of the
1 Bradford, Laws of Pa.
2 Col. Rec., ii, p. 614.
3 So far did this antagonism between the Quakers and Episcopalians proceed, that strenuous efforts, even to the extent of open lawlessness, were made by the latter to persuade the governor that the courts of the province had no power to try a certain Church of England minister for gross immorality. The assembly told Gookin that cases, which in England and elsewhere might be triable only in eccle- siastical courts, were in Pennsylvania triable in the quarter sessions. It resolved therefore that, whoever should " assert or endeavor to incense or persuade the gov- ernor or any other that the court of quarter sessions * * has no cognizance of
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province had settled the qualifications of officers until the pro- mulgation of the statutes. In this view he was supported by the judges of the supreme court. In response to the request of the assembly to state the reasons why they refused to try certain criminals, the judges said that a question had been raised, " whether, by extending to America the late act of parliament for the affirmation allowed to those called Quakers in Great Britain, all the exceptions in the said act are not also extended hither." Moreover, they declared, that, as the gov- ernor, from whose commissions their power were derived, held that the statute was so extended, they did not think it prudent
" to proceed in opposition to that opinion in so tender a point as the lives of his majesty's subjects."I The assembly then asked the governor to lay before it the authorities in law upon which he based his views; and asserted that, from the knowledge it possessed of opinions held by him, it would be useless to enter upon any business.2 The governor replied, " I am not surprised at * * * your message. * *
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 and safety to comply with. It is not to be wondered at that the council should be of opinion with the as- sembly, since of four of which the council consisted, three of them are of the people called Quakers, and the other I suppose durst not dissent from them. I cannot recede from my opin- ion relating to the act of the first of King George, till I am
the said offences, are and shall be deemed enemies to the governor and government of this province." It requested Gookin to suppress any attempts to screen the offender from justice, and to cause the laws to be properly executed. In reply the governor promised to exert his authority to the fullest extent. Ibid., pp. 598-9.
1 The four judges of the supreme court were Joseph Growdon, William Trent, Jonathan Dickinson, and George Roche. Growdon was a Quaker, and of course did not sign this statement. The fact that the other three judges were not Quakers leaves room to suspect the sincerity of their motives.
2 Col Rec., ii, p. 615.
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otherwise directed from home." Then the assembly sent the governor a long remonstrance in which the entire history of the question was reviewed. It rehearsed the views that were cherished by William Penn, referred to the charter of privileges, to the superiority of the Quakers in numbers, to the danger which threatened the administration of justice and execution of the laws; and commented on the arbitrary con- duct of the governor in refusing to qualify officers, or to allow the prosecution of criminals. It also with great force urged that, as by the royal charter the laws of England concerning the descent of lands could be altered, so could those which provided for the taking of oaths be changed, if in the judgment of the legislature enactments for such a purpose were not contrary to the laws of England. " It is further to be consid- ered " said the assembly, " that as the term repugnant always implies an absolute opposition or contrariety in matter, it can- not be said that an act of this province which enables those called Quakers to serve in office, upon juries, and to be evi- dences in all cases, the circumstances of the country 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, it is true, and so it was certainly consid- ered and expected at the time of the royal grant, that our acts might in some measure differ from those in England, other- wise those in 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 convenience may be to the statute provided for Quakers in Great Britain."I The question at issue thus was whether laws that had been passed by the legislature and not repealed by the crown could be subject to repeal by any statute of parliament. If this were admitted, the rights claimed by the Quakers would be in im- minent danger. But the assembly could obtain no satisfaction.
1 Col. Rec., ii, pp. 616-629.
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from Gookin, who had begun to show symptoms of insanity. Thereupon it ordered a copy of the remonstrance to be sent to the proprietor.I
Two years later, in 1718, the assembly enacted a law by which several penal statutes of England were extended to the province. In the law it was provided that "all * * crimes and offenses, matters and causes whatsoever, to be inquired of, heard, tried, and determined by virtue of this or any other act or law of this province, or otherwise, shall be enquired of, heard, tried, and determined by judges, justices, inquests, and witnesses qualifying themselves according to their conscien- tious persuasions either by taking a corporal oath, or by solemn affirmation allowed by act of parliament to those called Quakers in Great Britain. Which affirmation of such persons as conscientiously refuse to take an oath, shall be accounted and deemed in law to have the full effect of an oath in any case whatsoever." False affirmations should be liable to the penalties provided by the laws of England for perjury.2 As this act was not repealed, the repeal by the crown, July 21, 1719, of the act of 1715, entitled " An act for the ease of such as conscientiously scruple to take the solemn affirmation formerly allowed in Great Britain," caused no comment.
At last, in 1724, the contest was settled by an act " prescribing the forms of the declaration of fidelity, abjuration, and affirma- tion, instead of the forms heretofore required in such cases." In the preamble it was declared that the British legislature in the act 8 George I., chap. 6, acknowledged that the Quakers had given ample testimony of their affection and fidelity to the crown, and to the settlement thereof in the Protestant line of succession, and had not abused the liberty and indulgence al- lowed by law. The forms of affirmation were then carefully specified, and it was provided that the act should not be con- strued to repeal the one of 1718. The English statute just mentioned was also expressly extended to the province. The
1 Votes, ii, p. 208. 2 Charter and Laws of Pa., P. 372.
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act should not be put into execution, however, until the pleas- ure of the king was known. The attorney-general offered no objections, and the act was ratified by the king in council, March 27, 1725.1
For the benefit of Scotch Presbyterians and others who ob- jected to kissing the book, in 1739, an act was passed to enable them to take the oath by merely repeating it. But the act was repealed by the crown, May 12, 1740. Religious scruples however continued to exist, and in 1772 it was enacted that persons who were opposed to laying the hand on or kissing the book might take an oath or affirmation according to their conscientious persuasion, or according to a form prescribed in the act.2
We have yet to notice the qualifications required of foreign- ers for admission to citizenship. We have seen that on his ar- rival William Penn naturalized the foreign born residents of the province and Lower Counties. By the act of naturalization passed at Chester in 1682 it was provided that alien freehold- ers, who within a given time should promise before the county court faith and allegiance to the king, and fidelity and lawful obedience to the proprietor, should become freemen of the province.3 This act was continued till 1700, when a law of like import, passed at Newcastle, repealed it. This in turn was repealed by the queen, because the royal charter had given no power to the proprietor to pass such a law.4 The acts subse- quently passed by the assembly naturalized foreigners by name. Parliament, however, by the act 13 George II., chap. 7, declared that after June II, 1740, all foreign born persons who had resided or who should reside in the colonies for seven years continuously, could become citizens by making the de- clarations provided for in I George I., chap. 13. If they were Quakers they might take the declaration of fidelity and the
1 Bradford, Laws of Pa. 2 Miller, Laws of Pa.
3 Charter and Laws of Pa., p. 105.
4 Carey and Bioren, Laws of Pa., vi, app., pp. 36, 50.
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effect of the oath of abjuration as provided in 8 George I., chap. 6., and the profession of Christian belief as provided in I Wil- liam III., chap. 18.
In 1743 the privileges of this act were extended by the assembly to all Protestants in the province. The antipathy to Catholics which prevailed in England, it will thus be seen, was cherished to some extent in Pennsylvania. The Episcopalians of course were bitter against them, while the broader-minded among the Quakers, even if they felt it, did not dare to show them any sympathy. The proprietors, also, in their instructions forbade the governor to allow them to settle in the province, or to purchase land for chapels or dwelling houses." The time was not ripe for the acceptance of the great plea for liberty of conscience which William Penn introduced into the charter of liberties of 1701 : " Because no people can be truly happy, though under the greatest enjoyment of civil liberties, if abridged of the freedom of their consciences as to their relig- ious profession and worship; and Almighty God being only Lord of conscience, Father of lights and spirits, and the author, as well as object of all divine knowledge, faith, and worship, who only doth enlighten the mind and persuade and convince the understandings of people, I do hereby grant and declare that no person or persons inhabiting in this province or ter- ritories, who shall confess and acknowledge one Almighty God to be the creator, upholder, and ruler of the world, * and who professes him or herself obliged in conscience to live peaceably and quietly under the civil government, shall in any case be molested or prejudiced for his or her conscientious persuasion or practice. Nor shall he or she at any time be compelled to frequent or maintain any religious worship, place, or ministry * * contrary to his or her mind, but shall freely and fully enjoy his or her Christian liberty in that respect, without any interruption or reflection."2
1 Penn MSS., P. L. B., ii, T. P. to R. Hockley and Tench Francis, Feb., 26, 1743; viii, to John Penn, May 10, 1765.
2 Charter and Laws of Pa., p. 107; Col. Rec., ii, p. 57.
CHAPTER VIII.
THE ESTABLISHMENT OF COURTS OF JUDICATURE
IT will be recalled that the royal charter gave the proprietor or his lieutenants the right to appoint judges, and to endow them with such powers as might appear to him suitable. He was authorized also to establish courts and to determine their procedure. These facts at once show that, whatever may have been the powers claimed and exercised by the assembly, the appointment of judges, and the establishment of courts were prerogatives of the proprietor. Hence, the constituting of courts, and the outlining of their procedure by law were privileges of the assembly dependent upon the acquiescence of the proprietor, and not incident to the general power of legislation. In this connection we have already noticed that, by the first and second frames of government, the proprietor vested in the governor and council the right to establish courts. To the council he gave the privilege of nominating a double number of persons to serve as judges, while to the as- sembly he gave the right to nominate a double number of persons to serve as justices of the peace. From those pre- sented in this way he or his deputy should make the appoint- ments. The tenure of office was during the good behavior of the incumbent." The second frame of government, however, provided that the absolute power of appointment should re- main in the hands of the proprietor during his lifetime. But he or his deputies exercised the power generally in accordance with the advice of the council. The commissions issued were in the name of William Penn as proprietor.2
1 Col. Rec., i, pp. 35, 36, 45.
2 Charter and Laws of Pa., p. 298.
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The code adopted by the assembly at Chester, in December 1682, made no provision for the trial of capital offenses, or for the hearing of appeals. These defects were provided for the following year by laws which fixed the method of procedure in criminal cases, and allowed appeals to the governor and council from the county courts which had already been estab- lished. But the county courts were not given jurisdiction over capital crimes, this being a function of the governor and council. This continued to be the procedure till 1684, when a provincial court composed of five judges was established by law. The court was to sit twice a year at Philadel- phia, and to go on circuit the same number of times. It was empowered to hear appeals from the county courts, and to try cases of titles to land, as well as other matters civil and crimi- nal, both in law and equity, which were not determinable by the county courts. At the same time it was enacted that the justices of the peace should sit in monthly and quarterly ses- sions, and that each quarter sessions should be a court of equity as well as of law.2
As it was feared that, on account of "inadvertency, indis- cretion, or unskillfulness," the judges might cause confusion by intrenching on their respective jurisdictions, the council drew up and sent to them instructions defining their powers.3
But the following year the procedure was changed. It appears that the provincial judges and the inhabitants of the counties, by their attendance at court had been put to con- siderable trouble and expense. Since it was believed that the county courts were better fitted to judge of actions that arose within their territorial jurisdiction, it was enacted that they should be empowered to try all cases, except heinous crimes, which were to be tried in the county where com- mitted by three judges specially commissioned by the gov- ernor and council. These judges were also empowered to
1 Charter and Laws of Pa., pp. 129, 144, 164.
2 Ibid., pp. 167, 168. 3 Col. Rec., i, p. 124.
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hear appeals from the county courts.I Still the dissatisfac- tion continued. Some of the judges appointed were unwill- ing to serve. Others refused to sign a judgment awarded by them. They were also careless in the discharge of their duties. All this may in some measure be explained by the fact that the compensation they received was inadequate to the dignity of the office, and that they found it more profitable to attend to their private affairs than to serve the public for the empty honor. Complaints of the failure of justice reached the ears of the proprietor. He thereupon sent the council a letter of censure, calling its attention to the fact that the laws were too frequently and notoriously transgressed. In response to this the council resolved that the justices of each county should be ordered to " encourage, quicken, and require the due execu- tion " of the laws.2 This, however, does not seem to have had much effect, for the council and provincial court soon fell into a disagreement. There was also a hitch about sealing the commissions of the judges.3 Hence in 1688, when Blackwell assumed the governorship, he found the courts in great con- fusion. By the law of 1684 the judges of the provincial court were to be commissioned under the great seal, while that of 1685 provided that they should be appointed by the governor and council. The latter enactment, said Blackwell, was an en- croachment on the powers of the proprietor to appoint and commission all officers, and was directly opposed to the in- structions that Penn, in February, 1687, had given to the coun- cil.4 Thereupon it was resolved by that body that the law of 1684 should be re-enacted. But Thomas Lloyd, keeper of the great seal, did not deem the commissions for the provincial judges as ordered by the governor and council to be proper for the seal, and thought that they were " more moulded by fancy than formed by law." He believed also that the " style was insecure, the powers unwarrantable," and the length of
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