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GENEALOGY COLLECTION
PROPRIETARY GOVERNMENT IN PENNSYLVANIA
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STUDIES IN HISTORY, ECONOMICS AND PUBLIC LAW EDITED BY THE FACULTY OF POLITICAL SCIENCE OF COLUMBIA UNIVERSITY IN THE CITY OF NEW YORK. VOLUME VI
HISTORY
OF
PROPRIETARY GOVERNMENT IN
PENNSYLVANIA
BY WILLIAM ROBERT SHEPHERD, Ph.D., Prize Lecturer in History
חוח
EBORACI
INE TUO
SIGIL
DIDUS LUNTE
. I
IPETI.L.F &C
COLUMBIA UNIVERSITY NEW YORK 1896
COPYRIGHT, 1896, BY WILLIAM R. SHEPHERD
1129702
CONTENTS
INTRODUCTION .
5
PAGE
PART I
LAND
CHAPTER I
Early Stipulations Concerning Land Grants
..
13
CHAPTER II
General Practice of the Land Office
26
CHAPTER III
History of the Land System.
54
CHAPTER IV
Incidental Proprietary Rights.
77
CHAPTER V
The Divestment Act
84
CHAPTER VI
Indian Affairs
.
94
CHAPTER VII
Boundary Disputes 117
I. Maryland. 117
2. Connecticut 146
3. Virginia
161
4. New York
166
( iii )
50€
& chindlers
iv
CONTENTS
PART II GOVERNMENT CHAPTER I
The Idea of William Penn
PAGE
........
171
CHAPTER II THE PROPRIETARY FAMILY
I. Mortgage and Litigation
183
2. Bargains with the Governors
204
CHAPTER III
Character and Policy of the Young Proprietors
.
210
CHAPTER IV
225
The Frames of Government.
The Council.
CHAPTER V
CHAPTER VI
322
CHAPTER VII
The Oath or the Affirmation
351
CHAPTER VIII
The Establishment of Courts of Judicature
370
CHAPTER IX
The Bills of Credit
·
401
CHAPTER X
Taxation of the Proprietary Estates.
CHAPTER XI
435
Proprietary Instructions and the Powers of the Deputy Governor
..
..
474
CHAPTER XII
Relations with the Home Government
495
CHAPTER XIII
Royal or Proprietary Government
540
CONCLUSION
572
317
The Lower Counties.
HISTORY OF PROPRIETARY GOVERNMENT IN PENNSYLVANIA
INTRODUCTION
THE English colonial governments were of three varieties: first, provincial establishments, the constitutions of which were outlined in the commissions and instructions given by the crown to the governors, and the assemblies of which, held under royal authority, had their share in making ordinances which were local in character and not repugnant to the laws of Eng- land; secondly, charter governments, which were in origin and nature civil corporations; thirdly, proprietary governments, which were essentially feudal principalities, upon the grantees of which were bestowed all the inferior regalities and sub- ordinate powers of legislation which formerly belonged to the counts palatine, while provision was also made for the main- tenance of sovereignty in the king, and for the realization of the objects of the grant.
From the reign of William I. dates the origin of the great palatine earldoms of England, the overlords of which exercised particular rights known as the regalia minora. They were the seignorial lords of the county palatine. From this relation, according to the principles of the feudal system, arose the privileges of mines, wastes, and forests, escheat, forfeiture, ward- ship, and jurisdiction, both civil and military. More specifi- cally, the regalia minora consisted of the right to hold courts of chancery, exchequer, admiralty, wards and liveries, and all varieties of pleas therein ; to receive the entire profits of these
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PROPRIETARY GOVERNMENT [6
courts, to appoint chancellors, justices of the peace, sheriffs, coroners, escheators, and other officers, as the king did for the rest of the realm ; to issue writs, precepts, and commissions in their own name, to have a mint and coin money, to levy taxes and subsidies, to grant charters for markets and fairs ; to create a palatine nobility, and to hold councils in the nature of par- liaments. In short, the counts palatine acted as independent princes, under the limitations of their oaths of homage and fealty to the king. At first established primarily to defend the borders, and, therefore, endowed with special power, they gradually became subject to direct royal control. This fact is evidenced by the statute 27 Henry VIII, chap. 24, which ex- tended the power of the crown over Durham, providing that the king alone should pardon treason and felonies, appoint justices of oyer and terminer, of assize, of the peace, of jail deliv- ery, and that all prerogative and judicial writs should be issued in his name, the form of indictment being changed fromn "con- tra pacem episcopi " to " contra pacem regis." Moreover, the crown was to receive all fines and forfeitures for the non- execution or insufficient return of writs and processes, and all officers of the palatinate should be amenable to the laws of the realm. These regulations greatly narrowed the judicial powers of the counts palatine. But the custom of holding councils in Durham continued till the time of Charles II, when burgesses from that county were admitted to parliament.I
When the territorial and governmental system of Pennsyl- vania shall have been described, it will appear that that province was a huge fief bestowed on the proprietor by the Crown, and in form was a county palatine. The proprietor may thus be regarded as in possession of all the ancient rights of a count palatine, with the exception of those the exercise of which was otherwise provided for, or was specifically denied.
1 Surtees, History of Durham, i, pp. xvi-lxix; Stubbs, Con titutional His- tory of England, ed., 1880, i, p. 308; Sharswood, Lectures before the Lawe Academy of Philadelphia, 1855; Blackstone, Commentaries, i, p. 115.
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Let us now examine briefly the nature of an English royal charter. An analysis will show that it consisted of the premises, the movent clause, the habendum and tenendum clauses, the warranty clause, the penal clause, and the datal clause. The first stated the name and title of the grantee, a description of the thing granted, and the reason or consideration for its be- stowment. The second, though often included within the first, expressed the reasons for the grant. The third limited and defined the estate granted, and the tenure by which it was held. The warranty clause recapitulated the name of the grantee, the description of the thing, and the service or rent to be rendered. Lastly, the penal clause contained the punishment that would follow any attempt to infringe the privileges granted. More specifically, however, the colonial charters stated the names of the grantees, the territory and tenure, in the case of a corpora- - tion the organization of the council and the right to admit new members, the privilege to transport persons and goods, exemp- tion from duties except under certain conditions, the provisions for the appointment of officers and the administering of oaths. Furthermore, provision was made for the organization of sub- ordinate government in the colony, for the exercise of power through ordinance and instruction, the care for general defense and dependence, and the restriction that the laws of the colony should be conformable to reason and to the laws of England. Lastly, the charter should be interpreted in a way most favor- able to the grantee.
To this general class of documents belonged the proprietary charter of Pennsylvania. Though issued by a Stuart king, it was drawn in plain and simple terms, agreeably to law and reason and with due regard to the rights of both crown and subject. The control of parliament was also more clearly recognized than in any earlier charter. But this is probably to be explained by the history of Massachusetts. The care taken to guard the supremacy of the home government was due to an anxiety to prevent a repetition of the disputes that had arisen
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PROPRIETARY GOVERNMENT
with that colony. Laws inconsistent with those of England had been passed by its general court. The navigation acts had been disregarded, money had been coined, and an attitude in general assumed, which was inconsistent with the mainten- ance of imperial control. Hence, to prevent the dangers of misconstruction and design, a requirement was introduced into the charter that the laws of Pennsylvania should be transmitted to England within a specified period. Penn was ordered to employ an agent, because the Massachusetts general court had refused or delayed to appoint any. Finally, provision was made for the free use of the Anglican forms of worship, though that had been made impossible in Massachusetts.I
If the question, whether or not the Pennsylvania charter was the best example of a proprietary grant, is raised the an- swer given will depend upon the standpoint from which it is viewed. If we consider only the essential characteristics of . a proprietorship as a palatine jurisdiction, the Pennsylvania grant is certainly inferior to that of Maryland and the Caro- linas, because the powers bestowed are more definitely limited. But if we examine it from the point of view of a careful supervision of the colonial establishments by the English government, we shall find that, while all the important feudal powers were given to the proprietor, they were so limited as to bring them into subordination to the system of imperial control. In this respect, and with a view to the attainment of this object, the charter of Pennsylvania was superior to those of Maryland and the Carolinas.
After these general observations concerning the charters, it only remains necessary in this introduction to refer briefly to the location of Penn's proposed grant, and the efforts he made to obtain the charter which should transfer it to him. The fact is well known that by the middle of the seventeenth cen- tury, the Dutch and Swedes had established small settlements or trading posts near the Delaware River. They remained in
1 Chalmers, Political Annals, pp. 635-640.
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IN PENNSYLVANIA
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possession of the country till 1664, when the region, as a part of New Netherland, was conquered by the English.
The grant to the Duke of York in 1664 did not extend westward beyond the Delaware, though magistrates were ap- pointed under his direction, and exercised jurisdiction espec- ially over the region embraced within the present state of Delaware, known at that time as the " county of New Castle," or later as the "Three Lower Counties on the Delaware." But in 1681, within the territory of Pennsylvania, lived only a few Swedish farmers and traders, with perhaps some Quakers who had drifted over from the Jerseys."
As to the origin of the grant of Pennsylvania, it may be said that for several years prior to 1681 Penn had been financially interested in the Jerseys. He had held a large part of the soil of these in trust, and had subsequently become one of their principal proprietors. Still he never viewed these provinces as a sphere in which to make religious and humanitarian ex- periments, while in fact his pecuniary interest in them gradu- ally dwindled till it became of no practical importance. But the acquaintance with the country, slight though it was, which Penn gained through his connection with the Jerseys, enabled him, when his aspirations sufficiently broadened, to choose Pennsylvania as the field for his "holy experiment." It seems that the crown, for sundry services, owed his father, Admiral Penn, upwards of £16,000. That officer had sought in extin- guishment of this debt to obtain a grant of land in America, but, failing in this, at his death he suggested the plan to his son. He immediately set about its execution. Knowing how loath Charles II. was to part with money, he presented a petition, June 1, 1680, outlining the extent of the grant desired in lieu of the debt of £16,000, and mentioning therein only pecuniary reasons.2
1 Charter and Laws of the Province of Pennsylvania, 1682-1700, pp. 416-458.
2 Anderson, History of Trade and Commerce, iii, p. 76; Hazard, Annals of I'ennsylvania, pp. 473-4.
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PROPRIETARY GOVERNMENT [IO
Though Charles was very willing to part with that which had cost him nothing, still long deliberations followed the re- ception of the petition. The committee of the privy council for plantation affairs held several meetings at which the coun- sellor for the Duke of York and the agents of Lord Baltimore played an important part. At length, March 4, 1680, O. S.,I Penn obtained his desire. The charter which he received, was originally drafted by Penn himself from that of Maryland as framed for Lord Baltimore in 1632.2 It was revised by Chief Justice North, who probably added the clauses concerning the power of parliament to legislate, and the transmission of colonial laws to England.3 Not only was the charter granted, but a royal letter was sent to the inhabitants, April 2, 1681, commanding due obedience to the proprietary, his heirs and assigns. The Duke of York also executed a quit-claim deed of the region included within Pennsylvania, though legally his jurisdiction did not extend over the new grant.4
1As many of the authorities used in the preparation of this work are in manu- script, I have thought it wise to adhere throughout to the " old style " of reckon- ing time.
2 In one of the rough drafts of the charter of Pennsylvania was a provision that Penn should be given the powers of a bishop of Durham as amply as they had been conferred on Baltimore, and should even be allowed to bestow honors and titles. It is probable that the provision was a suggestion of some of Penn's friends. Penn MSS., Charters and Frames of Government.
3 Hazard, pp. 476, 486.
4 Charter and Laws of Pa., p. 466.
PART I LAND
-
CHAPTER I
EARLY STIPULATIONS CONCERNING LAND GRANTS
IN order to understand the nature of the land system we must consider those terms of the charter which dealt directly with the grant of territorial powers and possessions, for under and in accordance with the provisions of the charter both the territorial and governmental administration must be organized and managed.
The grant of land embraced all that section of country bounded on the east by the Delaware, from a point twelve miles north of Newcastle to the forty-third degree of north latitude, if the river extended so far; but if not, then by a meridian line drawn from the head of the river to the forty-third degree. The territory granted also extended westward through five degrees of longitude, as computed from the eastern bounds. The region was to be bounded on the north by the beginning of the said forty-third degree, and on the south by a circle drawn twelve miles distant from Newcastle, northward and westward to the beginning of the fortieth degree of north lati- tude, and by a straight line drawn thence westward to the limit of longitude. The use of the waterways was given, also the soil and its appurtenances, the islands, lakes and
1 Several attempts were made in petitions to the crown-notably in 1721 from Charles Gookin, a former governor of the province, from Cadwallader Evans in 1755, and from Lord Rochford in 1772-to deprive the Penns of their rights to the islands in the Delaware. The proprietors, in hearings before the Privy Council and the Board of Trade, protested vigorously against these attempts,
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PROPRIETARY GOVERNMENT [14
rivers, fishing rights, mines and their products, with the excep- tion of one-fifth of all gold and silver ore, which was required as a part of the customary nominal rent.1
Again, Penn, his heirs and assigns, were constituted true and absolute proprietors, the king reserving to himself and his successors their sovereign rights, as well as their claims to the faith and allegiance of the proprietors and of the future in- habitants of the province. All the premises then should be possessed and enjoyed by the grantee for his own advantage. The tenure was of the king in free and common socage, by
showing that not only were the islands given by charter to William Penn, but that they had long been inhabited and improved by persons under the jurisdiction of Pennsylvania. All such petitions, however, were either withdrawn or rejected. Penn MSS., Penn Letter Books-iii, Thomas Penn to West, March 17, 1755 ; viii, to Peters, July 22, 1765 ; x, to Richard Penn, April 8 and 14, 1772. Penn MSS., Philadelphia Land Grants.
1 About 1732, soon after the assumption of control by the sons of William Penn, complaint arose that the patents for land reserved to the proprietors three fifths of the product of the gold and silver mines found therein, though the royal charter re- served only one fifth. The question was, whether or not the products of royal mines regularly passed in a deed to the purchaser of land. The Penns stated that they never did so pass, unless expressly mentioned, because the province had not been accepted from the king in trust for others. Moreover, the reservation of three- fifths of gold and silver was of early origin. But, as was usual, the complainants fixed their attention on what they regarded as an inconvenient diminution of their incomes, without troubling themselves to search diligently for the precedents which would explain it.
In 1732 the Penns ordered that in all patents a proportional part of gold and silver ore should be reserved, a right that had not been mentioned in the earlier documents of that sort. Accordingly, in addition to that reserved to the crown, three-fifths clear of all charges was excepted on royal mines, and one fifth on all others. Lloyd, Vindication of the Legislative Power ; Logan, The Anti- dote in Some Remarks on a Paper of David Lloyd's, Called a " Vindication," etc .; Penn MSS., Official Correspondence-i, J. Logan to S. Clement, May 17, 1722; iii, Thomas Penn to Gov. Thomas, Aug. 20, 1741.
The need of contention over gold and silver mines was slight, but the vast re- sources of Pennsylvania in other minerals might well have been a cause of dis- agreement had they been known.
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fealty only for all services, and not by knight's service.1 Be- sides the payment of one-fifth of all gold and silver ore, already referred to, two beaver skins must be annually delivered at Windsor Castle.
All the said territory, inclusive of the adjoining islands, was then made a province and seigniory, and was named Pennsyl- vania.2
Penn was empowered to grant the land in such proportions as should seem fit. The grantees were to hold it in their own
1 The words " not in capite," which are used as part of the description of tenure in this and the other colonial charters, seem to express the very reverse of the truth. Tenure in capite means a tenure immediately of the crown, and it was thus that Penn and all others who received royal charters held their grants. " Men seem to have been led into a confused way of speaking upon this subject," says Madox (History of the Exchequer, i, p. 621), " by supposing tenure in capite to have been a distinct kind of tenure, in like manner as tenure by knight's service, socage, and others were. Tenure in capite was so far from being a different sort of tenure by itself, that it might be predicated of the several other tenures; that is to say, a man might hold of the king in capite either by barony, or by knight's service, or by serjeanty, or by socage, or by fee-ferm. And if it be said that a man held of the king in capite without mentioning expressly by what service, it is to be understood that he held of the king immediately, in opposition to his hold- ing immediately of another ; and that phrase was used in such case when the ser- vice was not in question, but the tenure only, to wit, whether it was mediate or immediate." The statute of 12 Charles II., chap. 24, added to the confusion. Its title was, " An act for the taking away of tenures in capite, and by knight's service and purveyance, etc." Its purpose was to abolish tenure by knight ser- vice, and other feudal tenures and services. "There are some clauses in that statute," continues Madox, " which, if I do not mistake, are worded in terms so complex and indistinct that, like a two-edged sword, they cut both ways." In fact, the words, " not in capite," are repugnant to the words, " to be held of us, our heirs and successors," as stated in the charter. A grant held immediately of the crown was held in capite, even though the form of tenure was socage.
2 Because the country was known to be mountainous, the proprietor chose for it the name New Wales. The king's secretary, however, who was a Welshman, refused to have it so designated. The proprietor then suggested the name Sylvania, to which the syllable Penn was prefixed in honor of his father. The last change was made without the grantee's consent. Hazard, Annals of Pa., p. 500.
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right, not directly of the king but of the proprietor, in fee simple, fee tail, or for a life or lives, or a term of years, and by such services, customs, and rents as might appear to him expe- dient, the statute of quia emptores or others to the contrary not- withstanding. He might erect manors with courts baron and view of frank pledge, though it is stipulated that persons who should receive manors might grant or sell any part of their lands in fee simple or in any other estate of inheritance, to be held of the said manors.
In England the barons or lords who held of the crown fre- quently granted out to others large portions of their estates, which were also erected into manors. These inferior lords also made grants to third parties, and so on, each subdivision being still capable of becoming a manor. But the superior lords found that by this method of subinfeudation they lost part of their feudal profits. This gave rise to the statute of quia emptores, just mentioned, which directed that in all sales or enfeoffments of land the purchaser should hold, not of the immediate gran- tor, but of the chief lord of the fee of whom the seller himself held. But in order that no subinfeudation should be permitted in Pennsylvania, it was expressly provided in the charter that upon ensuing alienations, the lands should be held of the same lord and his heirs of whom the grantor had held, and by the same rents and services.
From this it appears that the principles of the English land law obtained in Pennsylvania, and would continue to be ob- served till changed. Purchasers of the soil held immediately of Penn, not of the king, and that by socage tenure. As the title of the proprietary to the soil was in point of law feudal and not allodial, he did not believe himself authorized to make · grants upon allodial principles. The estate possessed by the grantee would thus be a tenement, not an allod. It was sub- ject to quit-rent, to forfeiture and to escheat. Pennsylvania then may be viewed as a seigniory, but divested of the heaviest burdens imposed by feudal law, and endowed with such pow-
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ers of territorial control as distance from the realm of the lord paramount required. Penn, being vested with the absolute proprietorship so far as by charter, independent of Indian pur- chases, such a right could be conferred, was at liberty to sell and lease lands within the limits of the territory and under the powers granted.
Penn and his sons divided the land, roughly speaking, into three parts. The first comprised the millions of acres called the common land, which was sold generally at uniform prices, Fand to which, unless otherwise stated, the following discussion of the land system will refer. The second included the pro- prietory tenths or manors reserved and held by the proprietors jointly, and consisting usually of one-tenth of the choicest lands in a given tract. The third was the private estates of the individual proprietors, either purchased by one of them from the others, or from persons in the province who had previously bought the property in question.I
Having secured his title to the province, Penn soon after issued his proposals and "Account" of Pennsylvania, together with a statement of the powers necessary for the proper management of the land when granted. The documents · stated that these were made public for the benefit of such as were or might be disposed to transport them- selves or servants to the new colony. It dealt with the nature and necessity of colonies, the cost of transportation, and the kind of persons most suitable for colonists. It also contained a general description of the country, and a statement of the rights and privileges that settlers might reasonably expect. The conditions of sale were the following. Each share sold was to be called a propriety, and to include 5,000 acres free of Indian incumbrances. The price of each share was fixed at £100; and after 1684 it was liable to a quit- rent of one shilling for every hundred acres. To those who desired to rent land it would be let in estates not exceeding
1 P. L. B. x, T. P. to John Penn, Aug. 13, 1771; to Hockley, Aug. 22, 1771.
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200 acres each, at a quit-rent of one penny per acre. Masters should receive 50 acres per head for each servant brought thither ; and 50 acres should be given to each servant when his term of service had expired. As purchasers of still larger tracts were likely to appear, Penn advised that overseers should be sent with the colonists, and that certain allowances for divi- dends and commons should be made.1
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