USA > Pennsylvania > Chronicles of Pennsylvania from the English revolution to the peace of Aix-la-Chapelle, 1688-1748, Vol. I > Part 31
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Feeling the necessity for a written constitution, for a law of property, and for a tax for the support of the government and the payment of public debts, Penn summoned an Assembly of four from each county chosen on October 1, 1700. Several of the Councillors were elected Assemblymen, and were temporarily ex- cused from service in the Council. Humphrey Morrey, Richard Halliwell, Jasper Yeates,-the two last being non-Quakers,-and Phineas Pemberton, William Biles, and John Blunston, Quakers, entered the Council about this time. Growdon was Speaker of the Assembly. The session was at New Castle, and one hundred and nine laws were passed, Penn duly publishing them under the great seal on November 27. Most of them
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were re-enactments or slight modifications of the laws in the Petition of Right. An allowance was established for each member of the Assembly of 6s. for each day of attendance, and 3d. per mile travelling, the Speak- er's daily allowance being 10s. There was some adjust- ment of the matter of oaths, thus: the radical Quaker formula of promising to perform official duty was fol- lowed in an act directing the attests of several officers, jurors, and attorneys, but a section was added that a magistrate who had no scruples against administering an oath should be allowed to do so to those who were free to take it; a clause to salve the conscience of Quaker Justices was inserted, that the act should be deemed that of the magistrate alone, and so entered on record, but be as valid as if done in the name of the court; Fletcher's law allowing testimony by "solemnly promising" was re-enacted. The promise for the at- torneys was so thorough-going as to discourage any conscientious observer of it from practising law. The sum of 2000l. was voted to Penn. It was apportioned among the counties, no two paying the same amount, and was to be raised by assessing on all estates with some exceptions as much as would be required, with a poll tax of 4s. on every person not otherwise rated, to make up the county's share. Although Penn may have been worth this much to the People, and certainly to those who enjoyed civic importance under him, yet the tax was not popular, and was not paid with alacrity, and, before the following July, many, for one reason or another, refused to pay it.
It was also enacted that any person speaking, acting, or writing anything tending to sedition "or disaffection to this government" or disturbance of the peace, or spreading false news tending thereto, should be im- prisoned three months, or fined not less than 5l., in the discretion of the Justices of the County Court. This law was repealed by Queen Anne.
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Among these laws of November 27, 1700, was one fixing the number of Assemblymen from each county at four, and prescribing the qualification for voters and Assemblymen, as follows: a native born subject of England or one naturalized either in England or the Province (meaning the Lower Counties as well), of age and wealth as in Markham's Frame of 1696, also resident two years before the election. This qualifica- tion, confirmed and re-enacted, remained requisite in Pennsylvania until the American Revolution.
Fletcher's marriage law of 1693 allowed marriages in the parties' religious society, or by persons author- ized by the Church of England and observing the laws and usages of England, to be without the otherwise required presentation to a religious society or Justice of a certificate of clearness of all engagements, and affixing to the door of a court house or meeting-house a declaration of intention one month before solemniza- tion, which solemnization was to be by taking for hus- band and wife in presence of twelve witnesses, one being a Justice. As declarations had been put up at night, and taken down in the morning, and banns had been given out where the parties were unknown, one act of Nov. 27, 1700, required the date of affixing to be added by a Justice, and made such affixing necessary also for marriages in a religious society. Penalties were prescribed in case of marriage of a servant without the master's consent. Any person marrying or joining in marriage contrary to the act was to pay 10l. to the Proprietary ; the "persons so joining others in marriage" were to forfeit 20l. to the Proprietary, and pay damages to the party aggrieved. Ecclesias- tical canon, however, provided for the marriage of per- sons of full age, not within the prohibited degrees, if banns had been given out three times. The Vestry of Christ Church under date of Jany. 28, 1700-1, made a representation to the Lords for Trade against royal
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allowance of this act, as interfering with the free exer- cise of the Churchmen's religion. The representation made mention also of there being no militia or military commissions outstanding or any gun mounted, while taxes had been imposed to give Penn large sums, also of the law about speaking or writing against the gov- ernment, and of the interpretation being in the hands of Quakers, there not being one magistrate belonging to the Church of England, and of the attestation tend- ing to deprive the Churchmen of having lawyers, and furthermore of the Quakers being less in number than the non-Quakers. This estimate, very different from Penn's, may have related to the whole dominion, in- cluding the Lower Counties; and Penn's, only to Penn- sylvania proper.
The one known case of sentence under the aforesaid act was where the master abetted the marriage of his servants. John Keble, planter in Kent County, had procured certain of his servants to be married at his house by an Anglican minister, whom he was en- tertaining. The minister was prosecuted, and fined 20l., according to the act, and was obliged to keep away from Keble's, to avoid imprisonment for not paying; while Keble's affidavit, put in shape by the Vestry of Christ Church, speaks of himself being prose- cuted, and of his suffering distraint to the value of 14l. 1s. This was resented as an interference with the Church of England; and Bp. Compton objected on Dec. 29, 1701, to the act as making it impossible for any but Quakers to live in the country subject to it, probably not only from the canon's silence as to the master's consent, but because the people of other religious so- cieties, having scarcely a house of worship in any neighbourhood or a minister in the whole dominion, could be married under their own form only as sud- den opportunity offered.
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The requirements of this law figured in the case of a young Quaker in prison upon the charge of the capital crime of rape. The woman, having made the charge, but being told that a wife could not testify against her husband, was induced to marry the culprit, so as to save his life by disqualifying herself as a witness. No publication of intention one month previously could be made. She went to the prison, and married him there, and a certificate under the hands of thirteen persons was duly made. The law of marriage was deemed vio- lated, but the bridegroom was admitted to bail, as likely to be acquitted, and, in view of the opinion of both of the two lawyers in the colony, was never tried.
Apart from requiring an oath for registering vessels, which Penn was endeavoring to have cured by an Act of Parliament, the Trade and Navigation laws, as we have seen, were very harsh, whether enforced by rea- son of the cupidity or the sense of duty of the Crown's local representatives for such matters. A particularly hard case was that of the ship "Providence," Capt. John Lumby, owned by residents of Hull. Although entitled to registration as an English vessel, she had sailed without registration papers. Intending to put in to Virginia or Maryland, in stress after five months at sea, but, mistaking the capes of Delaware Bay for those of the Chesapeake, Lumby had brought her within the jurisdiction of Quary, and had begun to break bulk. Moore, the Advocate, acting as informer, she and her cargo had been seized before Penn's visit. The sympathy of the trading community being particu- larly excited by the affair, disinterested merchants offered to go security for answering in the Court of Admiralty in England, if the voyage were allowed to be continued. After argument and trial, in which Lumby's evidence to excuse himself was not able to be admitted, Quary, as Admiralty Judge, had felt bound to decree condemnation; the law absolutely requiring
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a register, and, moreover, the waiving of it in any case tending to making the law a dead letter. Quary was liable to removal, if not further punishment, for any neglect to give the King his right. Recognizing that this case was a hard one, Quary did not speedily order a sale, but sent the goods to the King's store, and left the vessel in the captain's care, while a merchant going to England undertook to obtain relief. He appears to have notified Penn, but was reported to have failed. After nine or ten months, the goods beginning to de- teriorate, Quary caused an appraisement as low as pos- sible to be made; and the captain, about July, 1700, wishing to buy the ship, Quary arranged that the in- former would compound cheaply for his third, and Penn agreed to give his third, leaving the King alone interested in the proceeds of sale. Before the scheme could be carried out, there arrived an inhibition from the High Court of Admiralty in England for the pur- pose of having the case heard there. The High Court confirmed Quary's judgment of condemnation. On an order from the High Court, Penn had his third ap- praised, and so the value of the King's third was shown to be greater, making the low appraisement look sus- picious. Penn's and the informer's thirds were handed over in kind to them respectively, Penn's going to the owners. The goods left for the King and those de- livered to the informer were put up for sale, and the former owners were obliged to let them go, or pay high for them. Quary combatted before the Board of Trade, Penn's subsequent representations (printed with Penn and Logan Correspondence) as to Quary's conduct in this matter.
A letter from the King ordering a contribution of £350 sterling towards erecting forts on the frontiers of New York &ct., obliged Penn to summon the prorogued Assembly to meet on August 1, 1701. When the mem- bers appeared before him, he apologized for bringing
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them together at that season of the year, and asked them to give serious consideration to the message from the King. In a few days, the Speaker returned an- swer, that, by reason of the expenditure by the in- habitants in settling, and the great sums lately assessed in imposts and taxes, and the arrears of quit rents, the present capacity would hardly admit of levying money at that time, and, as it was understood that the adjacent colonies had done nothing, the members hoped that the matter would be postponed, and that repre- sentation would be made to the King of their condi- tion and willingness according to ability to answer as far as religious persuasion would permit. Seven mem- bers from the Lower Counties, viz: Halliwell, Robert French, Yeates, John Healy, John Brinckloe, John Hill, and Luke Wattson Jr., made a separate address, asking that no contribution be expected for forts abroad, until they were able to build some at home, they being daily threatened with war, but unable to furnish themselves with arms and ammunition, having used up their money "in making tobacco, which hath proved very advantageous for the Kingdom of England," yet the King's Majesty had not taken notice of them "in the way of protection," for they had neither standing militia nor persons empowered to command the people in case of invasion. With such opposition from both elements in the Assembly, Penn could do nothing but dissolve the body. He wrote or had written to the Governor of New York, that, even if he, Penn, were obliged to pay the money out of his own pocket, it should not be wanting for the King's service. The Governor replied that he needed neither men nor money, but Col. Kramer, the engineer whom the New Englanders kept from him.
On 6, 21, 1701, Penn received news by the ship "Messenger" of efforts to procure an act of Parlia- ment uniting all Proprietary governments to the
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Crown, a bill for that purpose having been already introduced into the House of Lords. It was thought inevitable that it would pass at the next session, unless Penn went to England to fight it. On the next day, the Council agreed to have Assemblymen chosen on the 4th of September to meet on the 15th.
For his assistance, subscriptions were sought through the gatherings of Friends for the Monthly Meetings, the subscribers to be reimbursed with land near the Susquehanna.
At the meeting of the Assembly, Penn told of the necessity for him to leave, and his resolution to return, and to settle his posterity in Pennsylvania: he asked the members to think of some suitable provision for safety in privileges and property, and to review and perfect the laws, and to give the postponed considera- tion to the King's letter. It seems as if the mention of property was a slip of the tongue, or at least that what Penn intended was a charter which might protect re- ligious immunities, in anticipation of the possible trans- fer of the government, and under which, if the govern- ment were not taken by the Crown, his own heirs and assigns would not be as near absolute as King Charles's patent made them.
The controversy precipitated in a few days over questions strictly of property has been detailed in the chapter upon the Acquisition and Distribution of the Land.
Penn called the Assemblymen before him on the 29th, and asked what progress had been made in the matter of the King's letter, and expressed wonder that nothing had been sent to him in amendment of the laws, and that the opportunity was not being embraced of secur- ing the freemen in their privileges, he desiring to part with them lovingly, and having no longer than three weeks to stay. Joseph Growdon, the Speaker, reported the resolution of the House,-it had been carried unani-
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mously,-asking to be excused for the present from responding to the King's request, the country having been much drained of late by paying debts and taxes, and it not appearing what other colonies equally con- cerned had done on like demands; the representatives had been going over the laws; as to privileges,-the authors of the message must have been in bad humor,- they felt that they had sufficient as Englishmen, and were inclined to leave the rest to Providence. Never- theless, some days later, while certain laws were being considered, Penn had a Charter of Privileges drafted and submitted to the House.
A plea having been set up by certain inhabitants of Philadelphia County against the legality of the tax im- posed by the law passed at New Castle, on the ground that New Castle was outside the bounds of the Province granted by Charles II, the magistrates asked that the laws passed at New Castle be confirmed. A bill for that purpose was prepared and sent by the Council to the Assembly, where it was received on October 10th. Thereupon the members from New Castle and Kent and one from Sussex decided to withdraw from atten- dance, and said, in a paper addressed to the Governor, that the consequences would be fatal to the Lower Counties, if their representatives must come into Penn- sylvania to make laws affecting them. Penn told the seceders that he was grieved at the prospect of a divi- sion of a union which had cost him 2000 or 3000l. They replied that, however the union was intended, the Terri- tories were great sufferers from it, and could not sup- port the burden of the expense. He then said that they were free to break off and act by themselves, when they could do so upon amicable terms. Pleased with his declaration that they were free to break off, and have a distinct legislative body, the seceders went back, but the representatives of Pennsylvania refused, in pass- ing the confirmation, to express any salvo of the privi-
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leges of the Lower Counties. Some of the seceders again retired; but Penn again brought them together.
Notifying the Assembly of having written to Eng- land to procure the King's approbation of Col. Hamil- ton, Governor of the Jerseys, as the acting Governor of Pennsylvania and Territories, Penn asked for the nomination of fit persons to administer the govern- ment from Penn's departure. The Assembly acknowl- edged this evidence of his good will, but requested to be excused, leaving the choice to him. He duly notified the Assembly that the support of Hamilton would fall upon the colonists, and not upon the titular Governor, whose Deputy he would be. The House forwarded the request of some inhabitants of the city that the burdens on trade, such as the impost on liquors, be remitted. He replied that he would have accepted an equivalent, but, as the session must close, it was too late; so the House voted that the impost be continued, unless 300l. be se- cured to him before he sailed, payable within six months. This was not secured.
The House had actually, on October 27, sent an answer, in the determination to regulate the resurvey- ing of property, that a certain Charter of Property must be passed first, and, dependent upon such action, the bill for the confirmation of the laws : but this stand was not adhered to, and among the laws which received the great seal on October 28 was one confirming ninety- six laws passed at New Castle. In re-enacting the law about marriages, there was an endeavor to appease the Churchmen by leaving out of the proviso the require- ment that intentions be published, and substituting a requirement of a month's previous notice to parents, masters, mistresses, or guardians as the only condition upon which the law was not to refer to a marriage in the religious society of the parties. This law was al- lowed by the Queen.
The law passed on Oct. 28, 1701, for establishing
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courts of judicature in the Province and Territories, and under which justice was administered for about five years, provided for county courts holding sessions quarterly, that for Philadelphia beginning the first Tuesday in March, June, September, and December, the county courts trying all criminal cases except for certain offences, and trying all civil cases. They were furthermore authorized to hear and decree all matters of equity, and it may surprise some who speak of a subsequent Governor's Court of Chancery as the first in Pennsylvania, to read that the proceedings in these county courts in equity were to be by bill and answer and "such other pleadings as are necessary in chancery courts, and proper in these parts, with power also for the said justices to force obedience to their decrees in equity by imprisonment or sequestration of lands, as the case may require." It is fair to assume that the facts for equitable relief were found by a jury, and not by a master or a judge. There was to be a Provincial Court, or, in other words, a Supreme Court over the whole Province and Territories, for appeals and for trying treason, murder, and certain other crimes, in- cluding burglary and burning of houses. From judg- ments on appeals there could be appeal to England on deposit of the amount of money involved, or giving security in double the amount. The county Justices with the Register-General or his deputy in each county were to form an Orphans' Court.
The Charter of Privileges involving a Frame of Gov- ernment proposed by Penn did not satisfy the people of the Lower Counties, but after some emendation was, upon the day of adjournment, executed by the Pro- prietary in the presence of his Council, and probably of a number of Assemblymen including the Speaker. It was said that less than a majority of the House adopted the Charter. The House was not in actual session when the Speaker appended his signature to
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a certificate that the Charter had been approved and agreed to, and was thankfully received, and that he signed by order of the Assembly. As thus established, this instrument of October 28, 1701, in connection with Charles II's patent to Penn, was the written constitu- tion of Pennsylvania proper until the Revolutionary War. The provisions will be stated in the next chapter.
The bill relating to property was not agreed upon. On the last day of the session, the House made certain offers, but Penn, rejecting these, summoned the repre- sentatives to his residence, expostulated with those who came, told them that he had scarcely half an hour to spend with them, pressed his latest proposal upon them, and advised them to go into his parlor and con- sider it. They accordingly retired to his parlor, and, in about an hour, sent word in writing that they could not depart from their former concession.
On October 28, 1701, the Assembly was dissolved, and a new Charter for the City of Philadelphia was signed by Penn with several commissions. One of these com- missions named as a Council of State to advise the Governor or Deputy-Governor, and in the absence of both to exercise the powers of government, the follow- ing "trusty and well beloved friends," viz: Shippen, Guest, Carpenter, Clark, Story, Owen, Pemberton, Samuel Finney (mentioned in chapter on the People), Pusey, and Blunston, the first named to take the Chair on failure of the Lieutenant-Governor to name a Presi- dent. Four were to be a quorum to advise, and five to be a quorum to exercise the powers of government. The Lieutenant, or Deputy, Governor, could add new members.
Penn had intended to take with him to England one or two Pennsylvanians, and to leave his wife and baby and Lætitia to await his return: but he was obliged to do without advisers or aids from the colony, as neither Hannah nor the daughter could be prevailed upon to
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stay without him. They went down on a yacht to New Castle, where the whole family embarked on the ship "Dolmahoy." The ship remained a few days after- wards at New Castle. About this time, Quary, sent for by persons in England to promote the abolition of Proprietary governments, found that there was a vessel about to sail from Virginia; so he hastened thither, in hopes of reaching England as soon as Penn. David Lloyd went to New Castle, and submitted to Penn a Charter of Property, which, at the entreaty of several persons, Penn signed and handed over to the Secretary with a paper, dated 8ber 31, explaining that he had not had time to digest the terms, especially as to courts, and postponed the complete passing of the Charter until he could see the state of affairs in England, that he could not give such rights to persons in Pennsyl- vania alone, this Charter not mentioning the Lower Counties, that he confirmed the part relating strictly to land : he accordingly in this paper ordered Governor Hamilton to have the great seal affixed at the end of six months, if no message were received to the con- trary, and promised to execute such Charter or one which counsel in England would advise, as well as a suitable Charter of Property for the Lower Counties, if they wished it.
The "Dolmahoy" went aground in the Bay, but got off without much damage. Logan accompanied his master as far as the Capes, receiving a letter of in- structions from him dated on shipboard, 9mo. 3. The remainder of the passage was a swift one, twenty-six days from land to soundings, thirty to Portsmouth. He sent back a message, dated January 8, 1701-2, annull- ing the Charter of Property, that is ordering the seal not to be put to it, unless within six months he should change his mind. This he did not do.
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CHAPTER XIII.
GOVERNMENT BY PENN'S FRIENDS.
The new Frame of Government-The result of Penn's visit a reduction of the People's power .- Political situation of the Churchmen-Parmiter -Quary's military scheme-Andrew Hamilton and his namesake-Changes in the Council- Anne becomes Queen-Pennsylvanians ready to accept Lord Cornbury-War with France and a voluntary militia-Legislative separation from Lower Counties-Failure of bill to abolish Pro- prietary governments-Disagreement about trying capital cases-Hamilton approved for one year- Queen's order as to oaths-Hamilton's death- Shippen and fellow Councillors-Mompesson- Value of foreign coins-Indians and the traders among them-Approval of a Lieutenant-Governor -Lord Cornbury wanted by Churchmen-The Assemblymen chosen in 1703-Gov. Evans and William Penn Jr. arrive-New Councillors-The legislative separation of Lower Counties confirmed -Penn's reservation of assent to laws declared void-Assembly addresses Queen concerning oaths -Penn's financial circumstances-The Ford claim pressed-Penn asks for a house in Phila- delphia and annuity-Penn offers to sell the government-Suggestion to pay Quary, Moore, et al. to leave-Solicitude of Penn's friends as to selling value of the Governorship.
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