USA > Pennsylvania > History of proprietary government in Pennsylvania > Part 24
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into an act or not." To evince its appreciation of the gover- nor's spirit of concession, the assembly soon after presented to him not only the new act of settlement or frame of government, but also a bill for raising money to meet the demands of New York. When these had been passed, the governor declared the assembly dissolved.ª
Markham's frame of government made some important changes in the existing political system. The reason for their being made was declared to be the fact that the former frame was " not deemed in all respects suitably accommodated to present circumstances." Hence provision was made that two members of council and four members of assembly should be chosen from each county annually on March 10, and should meet in general assembly on May 10. The conditions of suf- frage were specified. Affirmations in lieu of oaths should be allowed in all cases where the taking of the latter would in- volve an infringement of religious liberty. A stated compen- sation should be given to members of the council and assembly. Both the council and the assembly should have the power to propose bills, each for the consideration of the other, and copies of such bills as the governor passed, should be sent to the Privy Council as the royal charter commanded. To the assembly, further, was accorded the right of sitting on its own adjournments until dissolved by the governor and coun- cil, of appointing its own committees, of redressing grievances, and of impeaching criminals. The governor and council should also possess the right of summoning it at any time during the year. The governor or his deputy should preside in council, but was prohibited from performing any public act without its advice and consent. The act could not be altered or amended without the consent of the governor and six-sevenths of the freemen in council and assembly met, but the proprietor could at any time bring its existence to an end by expressing his will to that effect through an order under his hand and seal. Noth-
1 Col. Rec., i, pp. 507-509.
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ing was said in the frame about the appointment of officers or the use of the ballot, but in conclusion it was provided that neither this nor any other act should preclude or debar the inhabitants of the province and of the Lower Counties from enjoying any of the privileges and immunities which the pro- prietor "did formerly grant, or which of right belong unto them, the said inhabitants, by virtue of any law, charter, or grants whatsoever, anything herein contained to the contrary notwithstanding."" Since a number of persons " expressed their dissatisfaction both with the proceedings and dissolution of the council and assembly in October 1696, insisting that their chartered rights were given away thereby, and that all the laws passed the last assembly were void * '* with such like objections that were made use of to obstruct the proceedings of the assembly, * * * and to bring the government into confus- ion," it was enacted in 1697 and 1698, that both Markham's frame of government and the laws passed in accordance there- with, should be legally binding in every respect.2 As an illus- tration of political tendencies within the province, the import- ance of this document can scarcely be overestimated. It meant the complete recognition of the supremacy of the popular will.
Passing over the events of 1697, 1698 and 1699, as more properly to be narrated in another chapter, we may now con- sider the policy of the proprietor, after his return to the prov- ince, December 3, 1699. As soon as possible he began the work of reconstructing the government. " Many of the germs of jealousy, personal emnity, and hatred implanted during those years were now springing into life, destined shortly to
1 Charter and Laws of Pa., pp. 245-253.
2 Ibid., pp. 261, 268; Col. Rec., i, p. 519. It appears that the members of the council and assembly elected from Philadelphia county, March 10, 1697, were firmly of the opinion that the charter of 1683 was still in force. There is some evi- dence, also, that the above law was passed by the efforts of Thomas Lloyd and his- party who were bitterly opposed to the Philadelphia contingent, particularly the assemblymen. Penn MSS., Ford vs. Penn.
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bear bitter fruit for the devoted proprietor to gather and garner with that of his earlier hopes."I It was firmly believed, how- ever, by many of the Quakers who still cherished a regard for Penn, that he could quiet all differences that had arisen, and establish once more the reign of peace.2 In fact Penn himself was positive that he could " compose all by mildness and mod- eration, and reconcile all animosities by his own intervention," and openly declared his resolution so to do. He told a promi- nent official that " he would treat with equal civility all per- sons that were not directly injurious to him." But he speed- ily encountered opposition in the person of David Lloyd, who for many years was the most prominent member of the as- sembly, and who was at this time also the attorney-general of the province. He is described by Logan as a man "very stiff in his undertakings, of a sound judgment, and a good lawyer, but extremely pertinacious, and somewhat revengeful."3 In addition to this characterization it may be said that his conduct shows that he was an ambitious and some- what unscrupulous party leader, who lost no opportunity to oppose and perplex the proprietor.4 Lloyd's determined op- position5 somewhat irritated Penn, who thought " more defer- ence and consideration were due his character and station."6 Scarcely had the proprietor begun to consider the course he must adopt to reconstruct the government, when several persons complained to him that by the act of 1696 they had been deprived of the benefit of the old charter. Call- ing them before the council, he held with them a long
1 Charter and Laws of Pa .. p. 579.
2 Penn and Logan Corresp., i, p. 19.
3 Ibid., p. 18.
4 See Watson, Annals of Philadelphia, i, pp. 38-9, 504-5.
5 " Ply David Lloyd discreetly," said the proprietor to Logan, " dispose him to a proprietary plan, and the privileges requisite for the people's and the Friend's security." Penn and Logan Corresp., i, p. 53.
6 Ibid., p. 18.
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conference, at the close of which he desired them to present to him in writing " such expedients that might be an accom- modation between the old charter and the late frame." At the same time he advised them to be careful and moderate in their proceedings. They therefore requested him to issue writs for the election to council and assembly of the number of members provided for in the frame of 1683. The legislature thus convened might with him settle the government. They also declared that such a settlement would be " most satisfac- tory to the well affected, who * * * would peaceably and joy- fully acquiesce therein." Urgent orders from England, how- ever, caused the proprietor, January 25, 1700, to reconvene the dissolved assembly of 1699, but at the close of its session, he promised that in future he would follow the old method of election.1 In a speech to the newly elected council in April the proprietor said that some persons had the idea that, because it was his council, it was not representative of the people. He stated that the ablest men had always constituted the council, and that he believed the chief duty of that body in legislation was to prepare laws to be submitted to the assembly. “ We are two bodies," said he, " yet but one power. The one pre- pares and the other consents. Friends, if in the constitution by charter there be anything that jars, alter it. If you want a law for this or that, prepare it. I advise you not to trifle with government." "Friends," continued the proprietor, " away with all parties, and look on yourselves and what is good for all as a body politic, first as under the king and crown of England, and next as under me by letters patent from that crown. * * Study peace and be at unity [for] the good of all; and I desire to see mine no otherwise than in the public's prosperity. * * * Some say I come to get money and be gone. Perhaps they that say so wish it so. I hope I or mine shall be with you while I or they live. The disasters of my absence," concluded he, " have been mine as well as yours, and
1 Col. Rec., I, pp., 573-577, 590, 591, 595.
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as I'm used I shall make suitable returns."1 A member of the council then requested that a new charter be granted. Penn desired to know whether they thought the frame of govern- ment of 1683 had been vacated by that of 1696. The reply was made that they did not think so. It was believed that the " fundamentals " of the frame were satisfactory enough, but the " circumstantials, of it as to time, place, number and rotation," were undesirable.2 The suggestion was thereupon made that what was useful in both frames might be incorporated into a constitution that would be firm and lasting. Penn responded that the frame of 1696 served till he came, but could not bind him against his own act. The charter of 1683 was his gift, of which fact the acceptation of it by the people was sufficient testimony. Referring to the appointment of Fletcher as gov- ernor by the crown, he said that some violence could not be averted, but that when the violence was removed the charter again came into force. How better could this be illustrated, declared he, than by the writs for election, with which he had summoned the council and the assembly. He agreed, never- theless, that the council should be formed into a grand com- mittee 3 to read both frames of government, keep what was good in each, and add to both what was best suited to the common welfare. All the laws passed since the founding of the prov- ince should be similarly treated. Eventually, however, the council and assembly joined together in a grand committee of fifty-four to prepare a constitution.
On May 16 Penn called to the attention of the committee
1 Col. Rec., i, pp. 596-7.
2 In this connection the statement of Lloyd in his " remonstrance " of 1704 is of interest (Franklin, Works, iii, pp. 171-2) ; " What rendered the former charter (1683) inconvenient, if not impracticable, was chiefly that Col. Fletcher's inter- ruption had extinguished the rotation of the council, and, next to that, the pro- posal of laws by the council in presence of the governor, as also the instability of the Lower Counties, which we had before experience of and whose result was then doubted."
3 Col. Rec., i, pp. 597-8.
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the nature of the existing constitution of the province, and the respective powers of the council and the assembly. The next day the committee reported that the assembly should have the sole power of preparing and proposing bills, and that the gov- ernor's council should be elected. Penn replied that he would not consider fragments, but must have the entire charter be- fore he would determine what he could and what he could not grant. He asked the committee then to consider a few of his suggestions, and, in order that he might not be accused of ex- erting an undue influence, he left Philadelphia for a few days and went to his country seat at Pennsbury.I On June 4 he told the council that he had read the charter offered for his ap- proval. Just then a committee of the assembly came in, and asked to see the charter which Penn himself had drawn up.2 With this request he complied, and " presented such a charter as he could grant." At the same time he appointed a com- mittee of council to meet a committee of assembly for the consideration of it. Not long after the assembly waited on the proprietor, and returned his charter with a variety of amend- ments. A long discussion followed, of which the chief subject was the trouble that for a long time had been brewing between the province and the Lower Counties. At last in despair the proprietor asked the representatives whether they wished to be governed in accordance with the old frame of government. An emphatic negative was the reply. He then asked them whether he should govern in accordance with the royal char- ter. The majority declared in favor of this, and the old frame was at once returned to him.3
As there was great necessity for both a revision of the laws and the drafting of a new constitution, the proprietor, in the fol- lowing October, convened an assembly to act with a council which he had appointed the preceding June.4 A committee was
1 Col. Rec., i, p. 605. 2 Votes, i, p. i, p. 120.
3 Ibid., pp. 121-122; Col. Rec., i, p. 613-14. 4 Col. Rec., i, pp. 580, 614.
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immediately selected by the assembly to draw up a new frame. The entire legislature then entered upon the task of revising the laws. The assembly, after having passed some of them, requested Penn that, if he had prepared anything which might be helpful in the "furthering and better dispatching of the matter," he would be pleased to communicate it. He did so. Then the assembly suggested that it be allowed to adjourn, but that, during the period of adjournment four or more of its members should, with two of the council, examine the laws, and propose matters for legislation to four persons, who should be empowered to draw them up in the proper form and pre- sent them to the assembly when it again came together. Penn, who was greatly disappointed because the assembly had in- sisted upon the service of some of his most trusted councillors who had been elected to it,' replied that, after the entire legis- lature had agreed upon the needful alterations and amendments to the laws, he had no objection to anybody who might be ap- pointed to put them in legal form. The council then asked the assembly not to be hasty in its resolution to adjourn. The speaker replied that it would not adjourn without the proprie- tor's consent. Thereupon, two members of the council sug- gested that a grand committee of council and assembly should " confer upon the laws, and agree upon the heads of what was fit to be done." But the assembly replied that the power of proposal was now vested in it, and that it, therefore, saw no reason for such a committee.2 The prospect of further conflict appearing imminent, the proprietor prorogued the assembly.
Not until September 15, 1701, did the assembly again enter upon the consideration of a new constitution. In the meantime the proprietor had endeavored without avail to heal the breach between the province and the Lower Counties, and to reconcile the religious and political factions. News now came
1 Votes, i, pt. i, p. 125.
2 Ibid., pp. 126, 127; Col. Rec., i, pp. 616-17.
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that a scheme was on foot in England once more to deprive the proprietor of his government. In his opening speech to the assembly Penn said : "The reasons that hasten your session is the necessity I am under through the endeavors of the enemies. of the prosperity of this country to go to England, where, taking advantage of my absence, some have attempted by false or unreasonable charges to undermine our government.
I confess I cannot think of such a voyage without great reluc- tance of mind, having promised myself the quietness of a wil- derness, and that I might stay so long at least with you as to render everybody entirely easy and safe ; for my heart is among you as well as my body, whatever some people may please to think, and no unkindness or disappointment shall, with sub- mission to God's providence, ever be able to alter my love to- the country and resolution to return, and settle my family and posterity in it. But having reason to believe I can at this time best serve you and myself on that side of the water, neither the rudeness of the season nor tender circumstances of my family, can overrule my inclination to undertake it. Think therefore of some suitable expedient and provision for your safety as well in your privileges as property, and you will find me ready to comply with whatsoever may render us happy by a near union of our interest. Review again your laws, propose new ones that may better your circumstances, and what you do, do it quickly, remembering that parliament sits the end of next month, and that the sooner I am there the safer." The assembly in reply sent the following address : " We have this day read thy speech, *
* and having duly considered the saine, cannot but be under a deep sense of sorrow, for thy pur- pose of so speedily leaving us, and at the same time taking notice of thy paternal regards of us and our posterity *
in thy loving and kind expressions of being ready to comply with whatsoever expedient and provision we shall offer for our safety, as well as in privileges as property, not doubting
1 His wife and infant son John were then in the province.
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the performance of what thou hast been pleased so lovingly to promise, do in much humility, and as a token of our gratitude, render unto thee the unfeigned thanks of this house."I But the first act of the assembly was to make a series of demands which have already been discussed in the chapters concerning the land system. Then Penn told it that in his speech he had recommended the consideration of privileges as well as of prop- erty, but had given privileges the precedence as the bulwark to secure property. But in its demands, property had been the only consideration. He wanted further to know what had been done with regard to the regular work of legislation. He asked the representatives why they had so neglected their interest as not to make use of the opportunity he had given them to secure themselves in their privileges. He declared also that he was " desirous to part with them lovingly," and that, if it happened otherwise, it would lie at their own door. The representatives laconically replied that "they had read over the laws, and remarked which appeared fit to be amended and what to be repealed, but were of opinion they had privi- leges sufficient as Englishmen, and were willing to leave the rest to Providence."2 After some further discussion concern- ing the demands just mentioned, the assembly appointed a committee of two to get from the proprietor " whatever he had drawn up relating to privileges." The committee returned with "two papers containing heads of a frame of govern- ment."3 Another committee was therefore chosen to consider some privileges to be put in a charter. A few days later the heads of the charter of privileges were read, and voted to be offered to the proprietor.4 He promptly made some amend- ments and sent them back. At the same time he suggested to the assembly to nominate several persons, from among whom he would appoint a deputy governor to represent him during
1 Col. Rec., ii, pp. 35-36.
2 lbid., p. 41.
8 Votes, i, pt. i, p. 147.
4 Ibid., pp. 149, 151.
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his absence. He admitted, however, that he had already written to his son to recommend for the king's approval as governor Andrew Hamilton, who at the moment was gover- nor of the Jerseys. In response the assembly thanked the proprietor for his kindly spirit, but since it "could not presume to that knowledge to nominate such as might be duly qualified for so high an employ, they therefore would leave it to the governor's pleasure."> It also returned the charter of privileges with a few alterations. But, on October 24, it ventured to ask Penn who was to represent him in the government. Exasperated by its importunate demands and the steady opposition with which he had met, the proprietor replied rather testily that that was his business, and that when the commissions were read, it would find out.2 Four days later he signed the charter of privileges in its final form, and directed the keeper of the great seal to affix the same to it. When this had been done, the record states that " the charter of privileges being distinctly read in assembly, and the whole and every part thereof being approved of and agreed to," the assembly received it thankfully from the proprietor and governor.3
In this charter of privileges we find no trace of the spirit that dominated both of the earlier frames. There is no council of the political romance type, with its parental authority and supervision. No rotation in office is mentioned, nor is there a word said about the use of the ballot. The governor and council are, at least by implication, excluded from the power to propose matters for legislation, and no provision as to the family or estate of the proprietor is made. Indeed the docu- ment is scarcely worthy of examination, except as showing the advance of the assembly from a mere ratifying body to a posi- tion equal with the governor in legislative power. It also shows the extent to which Penn was forced to make conces-
1 Votes i, pt. i, p. 155; Col. Rec , ii, p. 48.
2 Votes, i, pt. i, p. 161.
3 Col. Rec., ii, p. 57 et seq.
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sions to the popular will. There is ample evidence that he never liked it, and that, if he had dared, he would have vacated it." This fact will appear later, but it may be well to mention here one of his utterances on the subject. Writing to Logan in 1704, he declared that the charter of 1683 had been put aside at the suggestion of David Lloyd, and consequently much to his own regret. "I acquiesced," said he," having first shown my dislike at their disliking the model of an elected council2 to prepare, [and] an assembly to resolve, and at throwing away the use of the ballot which their children, as I told them, will have, perhaps, cause sufficient to repent of their folly therein."3 How completely the spirit of the earlier frames had departed, will be seen by a recital of the provisions of this document. It will be recalled that by the first frame the government was to consist of the governor and freemen, in the form of provincial council and general assembly, while in that of 1683 the words "proprietor and governor" are substituted for the word "governor." Even in the act of 1696 it was declared that the government should consist of the governor or his deputy, and the freemen in the form of council and assembly. These statements are to be found at the beginning of each of the three documents, but in the charter of privileges the first clause deals with liberty of conscience, and its wording is borrowed from previous enact-
1 Mem. Pa. Hist. Soc., iv, pt. ii, p. 333.
2 The struggles between the council and the assembly taught the latter that, if it hoped ever to gain a position of supremacy in the legislature, it must exclude the former from any place therein. It probably realized also that the proprietor could appoint the council, and, as was the custom in the other colonies, authorize it to act as the upper house of the legislature. At the same time it was too well aware not only of the proprietor's superabundant spirit of concession, but also of its own power of making his administration unpleasant for him, to fear any such action on his part. But in the chapter on the council it will be seen that the as- sembly under certain circumstances favored the participation of the council in legislation.
3 Penn and Logan Corresp., ii, p. 18.
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ments. Then, "for the well governing of the province," not the governor and freemen in provincial council and general assembly should be responsible, but an "assembly yearly chosen by the freemen." It should be composed of four persons from each county, and should hold its sessions at Philadelphia, un- less the governor and council should see fit to select another place. It should also have power to choose a speaker and other officers, to be judge of the elections and qualifications of its members, to sit on its own adjournments, to appoint com- mittees, to prepare matters for legislation, to impeach crim- inals, and to redress grievances. In short, it was to have "all powers and privileges of an assembly, according to the rights of the freeborn subjects of England, and as was usual in any of the king's plantations in America !" But if any county or coun- ties should refuse or neglect to send members, those who did meet should exercise the full powers of an assembly, provided they were not less than two-thirds of the number that ought to meet." The third clause provided for the system of com- bined election and appointment, as applied to the filling of the offices of sheriff, coroner,2 and county clerk. The power of the governor was further limited by the provision that he should license none as tavern-keepers, except those recom- mended by the justices of the respective counties.3 Jealousy
1 This clause was probably aimed at Newcastle county, from which in 1699 no representatives to council or assembly were sent. Charter and Laws of Pa., p. 278.
2 This was abolished by an act passed in 1706, whereby the tenure of sheriff and coroner was made wholly elective. Bradford, Laws of Pa. ; Col. Rec., ii, p. 232.
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