USA > Pennsylvania > History of proprietary government in Pennsylvania > Part 23
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1 Col. Rec., i, p. 319. 2 Ibid.
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he would appoint deputy governor, but in the meantime any person they might nominate might serve in the position. If this arrangement should not be agreeable, the whole council might act as deputy governor, similar to the form in which it had been appointed so to act when the proprietor left the province. With these commissions Penn sent a letter, in which he said that, in order to show his confidence in the members of council, and to make them contented, he had placed everything in their hands. He begged them to be more regular in their attendance, to be diligent in the pursuit of peace and virtue, and to maintain authority with respect. If they chose to nominate a deputy governor, provision for a " comfortable subsistence " must be made, so that the "gov- ernment might not go a-begging." He cautioned them that what he had done was merely to show his regard for the peo- ple, and was not to be construed as a precedent binding in all cases. " Whatever you do," said he, " I desire, beseech, and charge you to avoid factions and parties, whisperings and re- portings, and all animosities, that putting your common shoulder to the public work, you may have the reward of good men and patriots."2 The council without much hesita- tion adopted unanimously the commission that authorized the council to act as deputy governor, and immediately elected Thomas Lloyd president.
We have now arrived at a period in the history of the pro- vince when the records of the proceedings of both council and assembly have in part either been suppressed or accidentally
1 " With my true love to thee and thine and all honest friends by this know that none of my exercises here have come so near me as the jumbles you have there. I cannot declare the trouble they have given me, but * * * I hope I have taken the best course I could to quiet things among you. The Lord God almighty give them a sense of it that have been the occasion that have sacrificed the quiet and honor of the province to their particular humors, wherever it lights, and guide you all in the path of humility, meekness, and righteousness." Hazard, Register of Pa., iv, p. 135, William Penn to Robert Turner, Oct. 4, 1689.
2 Col. Rec., i, pp. 312-316.
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destroyed. The province and the Lower Counties entered upon a controversy over privileges. While this was in pro- gress, a religious quarrel broke out. The Quaker preacher, George Keith, who appears to have been fond of contention, began to advocate certain views. One of them was, that a Quaker magistrate could not conscientiously use force in the execution of law. He commented severely on orthodox Quakers, sharply inveighed against Penn himself,“ and de- nounced in unqualified and scurrilous terms all who did not accept his peculiar notions. When fined for libel, he bitterly complained that he had been persecuted. Finally, his preach- ing caused a schism in the society, and his followers formed a separate organization, known as the Christian Quakers. The angry feelings aroused by the quarrel continued for several years,2 and the disturbances which resulted from it, threatened to undermine the government. In the beginning of 1692 the proprietor forwarded a commission to Thomas Lloyd to be governor of the province. But the disagreement among the Quakers, the conflict between the province and the Lower Counties, and the renewal of the quarrels between the council and the assembly not only prevented legislation, but kept the affairs of government in a chaotic state. As an Indian chief expressed it, " When the Quakers governed, sometimes one man and sometimes another pretended to be governor."3
Statements concerning these disputes came to the knowl-
1 Penn was opposed to the contentions of Keith. Mem. Pa. Hist. Soc., iv, pt. i, p. 201.
2 In 1693 Keith presented to Lieut. Gov. Markham and the council a petition stating " that he had been aspersed by some in the government as having behaved offensively." In a letter to him from Thomas Lloyd and others he was called " turbulent, crazy, a decrier of magistracy, and a notorious evil instrument in church and state." As Markham and a majority of his council were not Quakers, they were probably very willing to affront Thomas Lloyd and his party, and therefore granted Keith a certificate of good behavior. Col. Rec., i, pp. 366, 378. See Hazard, Register of Pa., ii, pp. 55-6.
3 Ibid., pp. 372-3.
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edge of the English government. It now seized the oppor- tunity to take a step that it probably had for some time con- templated. On October 20, 1692, Benjamin Fletcher, governor of New York, was appointed by King William and Queen Mary governor of Pennsylvania as well. The ostensible rea- sons why Penn was deprived of his government may be summed up as follows: First, that the province " owing to great neglects and miscarriages in its government had fallen into disorder and confusion." Second, that, in consequence of this misgovernment, the public peace and the administration of justice had been broken and violated. Third, that, as no provision for the defence of Pennsylvania against its enemies had been made, there was danger that not only this province, but those adjoining, would be captured by the French. But the true cause of this action of the king and queen is undoubt- · edly to be found in a dislike for Penn, occasioned by his inti- mate friendship with James II., and increased by the misrep- resentations of the proprietor's enemies, who accused him among other things of being a Jesuit. Penn of course was unable to ward off this blow. He was not only under the ban of the court, but was helplessly involved in his financial troubles. Still, two months after Fletcher had been appointed, the proprietor warned him to be careful how he dealt with what was rightfully the property of another. As no writ of quo warranto had been brought against the royal charter, Penn attributed Fletcher's commission to some misinforma- tion given to the Board of Trade, and to an " excess of care over the colonies."I At the same time he wrote to some friends in Philadelphia, bidding them "to insist upon their patent with wisdom and moderation," though not to the ex- tent of openly disobeying the orders of the crown. He asked them further to show how improbable it was that the French would make their way through Pennsylvania into the other colonies. He requested them to bear in mind the fact that
1 N. Y, Col. Doc., iv, p. 33.
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the government, not the possession of land, was the motive that prompted the Quakers to leave England, and " that they were a people who * did not go to Pennsylvania on ac- count of guilt or poverty." Any protest against the governor acting by virtue of his arbitrary commission, and setting forth the dangers incident thereto, Penn declared would be sub- mitted to the proper authorities.1
In the appointment of Fletcher the rights of the proprietor were utterly disregarded, while his commission authorized him to govern both New York and Pennsylvania under the same plan of government, with equal powers and prerogatives in both provinces. Among the powers enumerated were those to appoint a council and to call a general assembly. In April, 1693, Fletcher arrived in Philadelphia. His first act was to send for the late governor, Thomas Lloyd, and to offer him the first place in the council. Upon his refusal to accept it,2 the governor appointed William Markham, and the following day that officer was chosen lieutenant governor. To the members of the council Fletcher announced the necessity for the early meeting of an assembly, and asked their opinion and advice concerning the number of representatives to be returned from each county. At first they deprecated any change in the number, which it will be remembered was six from each county. But their objections were soon overcome, and, April 27, writs were issued for the election of four persons from Philadelphia county, four from Newcastle county, and three from each of the others.3 Against this method of electing the assembly seven members of Lloyd's council presented to the governor a written protest. "We earnestly desire," said they, "that no other method may be taken for electing or convening our legislative power than the received laws of this province do prescribe." This address the gov- ernor and council decided to be too general in character to
1 N. Y. Col. Doc., iv, p. 34. 2 Ibid., p. 35.
3 Col. Rec., i, p. 366.
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deserve any answer.I When the assembly met, Fletcher or- dered the clerk of the council to read their majesties' commis -- sion. This he did because several persons commissioned by the proprietor had refused to serve under the new governor, and because many of the representatives were absent at the time.2 The proprietary party in the assembly was unwilling to believe that Penn's government had been superseded. Ac- cordingly the assembly sent Fletcher the following address : " Since it hath pleased the king and queen that the absence of the proprietary's personal attendance in this government should be supplied by thee or by thy lieutenant, we * do readily acquiesce with the king's pleasure therein, earnestly beseech- ing that our procedure in legislation may be according to the usual method and laws of this government, * * which we humbly conceive to be yet in force, and therefore we desire the same may be confirmed unto us as our rights and liberties." 3 The governor bluntly replied that the supposition that the laws of the province were still in force was a mistaken one. If they were in force, he questioned the need of any confirma- tion of them. He declared that the present constitution was in direct conflict with his commission. He pointed out that, by the frame of government, the tenure of the council was elective, whereas in the provinces immediately subject to the king, its tenure was appointive. He also called attention to the fact that the assembly had hitherto enjoyed the right of accepting or rejecting laws, whereas now the sole veto power was vested in himself as the representative of the crown. He insisted further that many of the laws were contrary to those of England. He even declared that the powers granted by Charles II. to the proprietor were available only during the life of that monarch. "These laws and that model of govern- ment," said he, " is dissolved and at an end: you must not halt between two opinions. The king's power and Mr. Penn's must not come in the scales together." After a brief consulta-
1 Col. Rec., i, p. 370. 2 Ibid., 371, 375, 377. 3 Ibid., pp. 402.
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tion with the council, the governor also informed the assembly that the absence of the proprietor was "the least cause men- tioned in their majesties' letters-patent for their majesties' as- serting their undoubted right of governing of their subjects in this province. The constitution of their majesties' gov- ernment and that of Mr. Penn's," said Fletcher, "are in a direct opposition, the one to the other. If you be tenacious in sticking for this, it is a plain demonstration * * * that in- deed you decline the other. I shall readily concur with you in doing anything that may conduce to your safety, prosperity and satisfaction, provided your requests are consistent with the laws of England, their majesties' letters-patent and the trust and confidence their majesties have reposed in me." This re- ply was accompanied with a rather pointed intimation that he would not brook further dilatory action, and that he desired the assembly to decide at once whether it would acknowl- edge the royal commission, or would still persist in demand- ing a recognition of the frame of government. Upon receipt of this communication the assembly resolved that it would be safe to act with the governor in legislation, but it declared that its decision should not be construed into a forfeiture of the right to the privileges contained in the frame of govern- ment and in the laws, so far as they were not inconsistent with the governor's commission.I
The assembly then entered upon the preparation of bills-a privilege it had long sought. After several days of tedious examination of the existing laws, a bill styled a " petition of right," and consisting of the titles only of upwards of ninety laws, in accordance with which the assembly requested him to. govern, was presented to the governor. On account of the fact that only the titles of laws were given, Fletcher refused to consider the bill. After considerable difficulty the assembly secured copies of the laws. These again Fletcher refused to consider, because they had not been certified or passed under
1 Col. Rec., i, pp. 402-405.
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the great seal. This second refusal of the governor placed the assembly in a peculiar position. It must induce the governor to confirm the laws, or, by a re-enactment of them seem to in- timate that they had never been in force. It therefore insisted that none of the laws transmitted to England had been de- clared void by the king in council. It urged also that the clause of the royal commission authorizing the governor to act in accordance with " such reasonable laws and statutes " as were then in force in the province, recognized fully the exist- ence and validity of those laws. Fletcher replied that he was informed on good authority, that none of the laws had ever been sent to the king. The fact also that they had never been duly enrolled, would serve to verify this statement. He then offered to allow the matter to be left to the decision of a joint committee of council and assembly. After a long and interesting debate, in which was discussed the status of the laws, particularly with reference to their alleged transmission to England, and the necessity of having them formally sealed and enrolled," the joint committee adjourned with the under- standing that the assembly should revise its list of laws before again desiring the governor's consideration of them. After some further controversy Fletcher agreed, June I, to pass into a law the "petition of right," which in its amended form embodied eighty-six laws. At the same time he ordered the law to be put into execution, " until their majesties' pleasure should be further known."2 In the afternoon the governor sent for the assembly and desired to know whether it wished to be adjourned, prorogued, or dissolved. A dissolution was requested, and with the request Fletcher complied.3 In his transactions with the assembly the following year, it may be said, he met with so much opposition that only six unimportant bills were passed.
1 Col. Rec., i, pp. 418-422.
2 Charter and Laws of Pa., pp. 188-220.
3 Col. Rec., i, p. 433.
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The affairs of the proprietor in England now began to assume a more favorable aspect. The charges against him were dis- proved, and at length by letters-patent, dated August 20, 1694, the king and queen restored him to his government, but only on the understanding that in future he would take greater care of it. Three months later he appointed Markham governor, but directed that all his official acts should be subject to the advice and consent of two assistants. The governor, shortly after the receipt of his commission, which was in March 1695, ordered writs to be issued for the election of a council, the number of which should be the same as that required by the frame of government. It met for the first time on May 20. " Humble and hearty " thanks were voted to the crown for re- storing the government to William Penn;1 and soon after, a grand committee consisting of all the members of council was constituted for the purpose of revising the laws of the province, in order to repeal those which could not properly be continued, and to prepare new ones. But since doubt had arisen as to whether the appointment of Fletcher had not affected the validity of the frame of government of 1683, the majority of the council and later of the assembly took the view that a legislative act was necessary to re-establish its val- idity. Hence the grand committee of council presented to the governor a bill " relating to the new modelling the govern- ment." During the sessions of two days the bill was discussed, but without any agreement. Markham thought that the frame of government had been temporarily superseded by the ad- ministration of Fletcher, and that, when the government was restored to the proprietor, the frame immediately went into force again. For this reason he refused, without advice from the proprietor, to pass any act to confirm it.2 Then he ordered the proposed bill to be laid aside, and appointed a committee of six, one from each county, to prepare "a new frame and model of government, that should not be construed 1 Col. Rec., i, p. 484. 2 Ibid., p. 505.
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as a confirmation of the old frame." But this select committee in preparing a frame of government met with no better suc- cess than did its predecessors, and was compelled at last to report that it had failed to come to any agreement. The gov- ernor then told the council that, in attempting to lay aside the charter granted by the proprietor, which had been so thankfully accepted, and in trying to "make a more easy frame," much valuable time had been consumed to no purpose.I Ere long it was found needful to summon an assembly, consisting of thirty-six members, the number required by the frame of gov- ernment. The governor immediately called attention to the fact that the custom enjoined by the frame, that the council should propose and the assembly accept or reject bills, had lately fallen into disuse. He himself, however, was much op- posed to making any change in the frame without the consent of the proprietor. Meanwhile, the council had prepared no bills for the consideration of the assembly. Hence, a grand committee of the two bodies obviated this omission of a con- stitutional requirement, by deciding that, in the present emer- gency, "it might be lawful to proceed to legislation without the promulgation of bills." It was also agreed that, as both bodies were created by the people, bills might be prepared and proposed by the assembly as well as by the council. In re- gard to an act of settlement that had been suggested, the gov- ernor was requested to, and accordingly did, appoint from both houses, a joint committee of twenty-four. Markham's objec- tions to its report resulted in the creation of another grand com- mittee of all the representatives, who were instructed to draw up another act of settlement. To the report of this also the gover- nor was strongly opposed. Several representatives urged that the act of settlement, as it then was, contained nothing more than had previously been granted by Penn himself. Markham replied that their purpose seemed to be to force him to yield to the passage of this " charter of privileges," otherwise another
1 Col. Rec., i, pp. 485-6.
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measure of importance would not be carried out. Further- more, in justice to the proprietor he felt that he could not pass it. At last, seeing that a change of sentiment on the part of the representatives was highly improbable, on September 27, he dissolved both the council and the assembly.I
This arbitrary dissolution of the general assembly of 1695 was looked upon by the representatives with surprise and dis- may. They insisted " that where mention was made of any difficulty or inconvenience in resuming the charter, it was but in circumstantials, and had respect only to the time of meeting, the number of members, and the like," and that they did not believe the charter had in any way been forfeited or lost. But Markham saw fit to construe their action into an expression of dissatisfaction with the manner in which he had attempted to restore the proprietary government. The clause in his com- mission authorizing him to govern the province " according to the known laws and usages thereof," he had interpreted to refer to enactments prior to 1693. Now he concluded to act upon a different interpretation. Discarding entirely the frame of government of 1683, he assumed the methods of government adopted by Fletcher. Contrary to the advice of one of his as- sistants, who in consequence resigned his position,2 no writs for choosing members of council and assembly were issued at the time appointed by the frame, and every effort was made by the governor to dissuade the people from holding the election.3 Thereupon he appointed a council of the same number of per- sons as was the custom in Fletcher's administration.
Urgent business in the shape of demands from Fletcher, based on orders from the crown for assistance in fortifying the frontiers of New York, necessitated calling an assembly. Accordingly writs were issued for the election of the same number of repre- sentatives as were chosen in the former administration. The assembly met, October 26, 1696, and sent the governor an earn-
1 Col. Rec., i, pp. 488, 489, 491, 493-495.
2 Ibid., p. 498. 3 Proud, Hist. of Pa., i, p. 414.
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est remonstrance against his dissolution of the former assembly, and his appointment of the council.I Failing to obtain a satis- factory answer to its protest, the assembly kept Markham in suspense as to its answer to his instructions from Fletcher. At length the governor's patience became exhausted, and, with the consent of the council, he called the assembly to a conference with him, and spoke as follows : " Mr. Speaker, and you gen- tlemen of the assembly, are a very silent and close assembly, which I believe proceeds from some jealousies you may have that I intend to take away your charter. Mr. Goodson relin- quished his assistanceship to me that Arthur Cook might take it up, by presenting me a commission from the proprietor to me which he had kept hid from me these eighteen months past, and which authorized me to act according to law and charter, and by another to Samuel Jennings and Arthur Cook to be my assistants, which they also kept hid from me the like time." After referring to the fact that he had always believed the frame of government was in force, but that the representatives had thought differently, for which reason he deemed himself fully empowered to dissolve the sessions of council and assem- bly, the governor continued : " Gentlemen, no man ever heard me say that the charter was void, and no man stood more for the defence of it than myself. And had that commission which Mr. Cook now presents to me from the proprietor, which authorizes me to act by law and charter, been the first presented to me, I could not even by it have acted more char- terally than I did by that by which I then and now act, which au- thorizes me to act according to the laws and usages. Since you say that the charter cannot be put into act and motion without a legislative authority, if I had power or instructions from the pro- prietor to do it I would most willingly. * * * If there be any- thing you would have me do that may secure any right or claim you have in law or equity to that charter, or any part of it, be sides putting it in force without the proprietor, I'll offer that noth-
1 Proud, Hist. of Pa., i, pp. 413-14.
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ing you do this session shall be in any manner of way prejudicial to your claim or right to the same. It is above twelve months since I called an assembly, and indeed I was backward to call one, knowing how fond you were of the charter, hoping to have heard from the proprietor ; but now the emergencies being such that I could no longer delay the calling you, I have now called you according to the king's letters patent to Mr. Penn, and as near as I can according to the customs of the neighbor- ing provinces."I In reply the assembly declared that, if the governor "would be pleased to settle them in their former constitution enjoyed by them before the government was com- mitted to Gov. Fletcher's trust," it would immediately proceed to a consideration of the business on hand .? It concluded, however, to request Markham to appoint a committee of coun- cil which, with a similar committee of the house, might devise some expedient by which Fletcher's demands should be com- plied with, and at the same time the privileges of the people secured. To this request the governor readily acceded. The joint committee, after an exhaustive consideration of the sub- ject, agreed that it was practicable to raise money in obedience to the orders from the crown, provided the governor were willing to pass an act of settlement, and so to construe its pass- age that it should not in the future work injury either to the rights of the people or of the proprietor, and provided further that the governor would agree to issue writs for the election of a full number of representatives in council and assembly. This proceeding should be subject, of course, to the approval or disapproval of the proprietor. Summoning the council and assembly to a joint meeting, the governor announced to them that he had considered the report of the committee, and had drawn up " some heads of a frame of government," containing certain amendments and alterations of the old charter, "which," said he, "I give you and desire you to consider › * and draw up into a bill. Then I will consider whether to pass it 1 Col. Rec., i, p. 505. 2 Ibid., p. 506.
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