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Commander-in-Chief the superintendence of the Customs and Admiralty officials, but leave the civil authority 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, appear 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Although the Act of Assembly directing attests, which was still in force because not yet repealed by the Crown, prescribed the qualifying of Judges and jurors by merely solemnly promising, and the Act relating to the manner of giving evidence, also in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 shallow 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 impossibility of “three of a kind” holding court, Hamilton issued a commission of jail delivery to Guest and 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 commission 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 objected to the approbation of Hamilton as acting Governor, 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 security 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 authorized to act did not reach Philadelphia before he died.
The Queen in Council ordered on January 21, 1702-3, that all persons in judicial or other office in Pennsylvania 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 authorized to make laws which were to be in force until disapproved, 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' affirmations. 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 convicted 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 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, otherwise 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 disadvantages 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 dedimus potestatem, to administer such oath, but those men adhered to the letter of their commission as authorizing 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 commissioners 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, secured appointment as Judge of the Admiralty for · Pennsylvania and Lower Counties, New Jersey, and New York, coming to America, and making his residence in Philadelphia, in 5mo., 1703, to lead a “simple life," so as to pay debts, for which he was bound, although 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 administering the affirmations, to insist upon the declaration