USA > Pennsylvania > History of proprietary government in Pennsylvania > Part 25
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3 Two years or more prior to Penn's return to the province he had received from persons dissatisfied with the condition of affairs there all sorts of defamatory ac- counts, not only of open violation of the navigation acts, but of the increase of drunkenness and other vices. Hence, September 5, 1697, he sent to Gov. Mark- ham a letter commanding him to suppress these practices. At the same time he ordered that the governor should grant no tavern licenses, unless the applicants therefor had been previously recommended by the county court. This order was embodied in a proclamation issued by Markham and the council, February 12, 1698. Col. Rec., i, pp. 527-529.
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of proprietary influence over the council is shown by the clause stating that no case relating to property should be brought before the governor and council, unless under a law regulating appeals. The fourth, fifth and eighth clauses deal with the style of the promulgation of laws, the privileges of criminals on trial, and the denial to the proprietor of any rights of es- cheat in the property of suicides, or of persons accidentally killed. The declaration of the proprietor in the eighth clause that, so far as he and his heirs were concerned, the clause pro- viding for liberty of conscience should be kept inviolate for- ever, shows how intent he was upon the permanence and suc- cess of his religious policy-the most valuable legacy of Quakerism. The proprietor also bound himself and his heirs I
1 That at a comparatively early date a copy of the charter of privileges was de- posited with the Board of Trade, is not improbable ( Mem. Pa. Hist. Soc., iv, pt. ii, p. 318); but it does not appear to have been properly authenticated. When there- fore the agent of the province endeavored in 1756 to induce the Board of Trade to order the proprietors to have the same read before it, the attorney for the Penns objected because the charter had not been duly entered in the public offices. The omission was remedied two years later, when the charter was entered in the records of the colonial office. ( Franklin Papers.) The sons of William Penn, it may be said, never believed that the charter of privileges was legally valid. They re- spected it as the gift of their father to the people of the province, but never thought it had the weight or force of a law. In other words, they were of the opinion that it carried with it a moral, rather than a legal obligation to obey its provisions. In their opinion they were supported by the crown lawyers. The attorney general and the solicitor general told them that, although they fully appreciated the good intentions of William Penn in granting to the assembly such indefinite power, yet they thought he had betrayed thereby the rights of the crown entrusted to him. They also declared that, in order to determine the extent of the power thus " un- warrantably granted," they hoped the charter would be examined by parliament. (Penn MSS., P. L. B., vi, T. P. to Hamilton, June 6, 1760; to Peters, June 9, 1760.) But this was not done. The following citations from their correspond- ence will illustrate the views held by the proprietors. When, toward the middle of the eighteenth century, the assembly became engaged in a contest with the governor over the issue of bills of credit and the taxation of the proprie- tary estates, its obstinate conduct caused the proprietors to consider the advisa- bility of ordering the governor to prorogue it. For a guarantee of the legality of their action, they had the opinion of a prominent crown lawyer, Sir Dudley
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never to infringe any of the liberties mentioned in the charter. In conclusion it is stated that the charter could be amended only by the consent of the governor and six sevenths of the assembly ; and, as an afterthought, a clause is added permitt- ing under certain conditions the Lower Counties to act in leg- islation separately from the province.1
It is probable that the proprietor embarked for England in a very unenviable frame of mind. Before him was a contest with the crown for the preservation of his rights. In the pro- vince he had been engaged in a contest for the same object with its inhabitants, and in this had suffered a defeat. His chances against the crown were certainly not bright. The people were intractable and disobedient. To pacify them he had granted a charter of exceptional privileges. Would they
Ryder. The opinion was this: that the power of adjournment possessed by the assembly did not prohibit the proprietors from exercising their right of proroguing and dissolving it. (Penn MSS., T. P. to Peters, May 13 and 26, 1758). When their intention to prorogue the assembly became known, however, the partisans of that body referred to the charter of privileges in support of the claim to the full right of self-adjournment. The proprietors replied that the other colonial assem- blies were subject to prorogation and dissolution by the governor, and that that charter bestowed no more power than was possessed by those bodies. Hence the pretense of the assembly not to be prorogued, was without foundation. (P. L. B., iv, T. P. to Peters, Feb. 21, 1755.) They declared further that it was as unsafe for the people as for themselves, to claim from the charter privileges which could not be warranted by the royal charter. "The people," said they, " must take care as well as we ought to take, to keep close to the king's charter." (Ibid., v, July 5, 1758.) In reply to Franklin's version of his conversation with Thomas Penn, which we have had occasion to notice in the chapter concerning the Divestment Act, that proprietor wrote to Mr. Peters. Dec. 8, 1758 (Ibid., vi), " The letter Mr. Franklin wrote, stating the conversation between us, was most infamous . .. I represented the danger to the people being great to make use of powers, though granted by my father's charter, [but] not granted by the charter from the crown, as they might be called to account for the exercise of any such powers, and the charter vacated." " As to your charter," wrote the same pro- prietor to William Allen, May 12, 1769 (Ibid., x), the " administration thinks that to have little force, and thinks you should not be too violent in your resolutions about it."
1 Col. Rec., ii, p. 60.
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value it? Would they recognize and appreciate his kindness? He would wait and see. Unfortunately the first news that came to him boded ill for the restoration of harmony. In spite- of all the efforts of Gov. Hamilton, whom he had appointed as. his deputy, the province and the Lower Counties drifted stead- ily toward separation. When the governor died the separation had been consummated. Penn now determined to appoint as governor John Evans, a young Welshman, of an active and vigorous temperament, a firm friend of the proprietor and always ready to defend his interests.
Accompanied by William Penn, Jr., eldest son of the pro- prietor, Gov. Evans arrived in Philadelphia, February 2, 1704. A few days later the proprietor's son was made a member of the council. For some time the governor busied himself, but without success, in attempting to bring about an agreement: between the province and the Lower Counties. Then he re- commended to the assembly, which had just been elected, an answer to a letter from the queen for aid to New York, and. some provision for the support of government. The assembly replied with cordial expressions of regard for himself and the proprietor, but thought the exigencies at home forbade the granting of any contributions for New York. The governor protested against its refusal, and laid further stress upon the fact that the proprietor expected the province to refund the salary he had paid to Gov. Hamilton, as well as to make pro- vision for the present governor's support. The members of council sent to deliver this message, on their return reported that they had delivered it, " but that there was some appear- ance of a dissatisfaction upon it.": On June 23, 1704, the assembly presented the governor a bill to confirm the charter of privileges. Evans then declared that he believed the in- tention of the bill to be the assumption by the assembly of the power of absolute self-adjournment, thus excluding all possibility of prorogation or dissolution by himself. He
1 Col. Rec., ii, pp. 138-143.
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hoped, however, that all disputes on the subject could be settled by conferences between the council and the assembly. The latter body with his consent immediately adjourned. Then Evans decided upon a step extremely disagreeable to the Quakers, namely, that of establishing a militia. To en- courage enlistment he offered exemption from certain civic duties." Before any serious outbreak occurred the assembly was again convened, and sent to the governor a bill to confirm the charter of incorporation of Philadelphia, and another to confirm the people in their property rights. John Guest, a member of the council, characterized the three bills as " absurd, unreasonable and monstrous."2 The assembly de- manded satisfaction for the criticism. The council decided that, as there was no particular crime charged against Guest, it could take no notice of the assembly's demand. Then a conference about the bill for confirming the charter was arranged, but the question of the governor's power of proroga- tion and dissolution was the stumbling block. The assembly stated that to admit the governor possessed such a right would destroy the utility of elections as provided for in the charter, and in their place would establish "elections by writs grounded upon a prerogative, or rather pre-eminence," of which the proprietor or his deputy were by the charter de- barred from making use. But it was willing to fix some de- finite rule concerning adjournments. Relying on the opinion of Judge Mompesson, a prominent member of the council, the governor replied that he did not believe the proprietor had in- tended to give up the right of prorogation and dissolution, and that therefore it would not be advisable for him to do it. In fact Judge Mompesson personally informed the assembly of his views. But, headed by David Lloyd, it refused to make any concessions.3
Shortly after the negotiations with this assembly, and during 1 Col. Rec., ii, pp. 151-2. 2 Votes, i, pt. ii, p. 10.
3 Col. Rec., ii, pp. 157-8.
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the early part of the session of the next, several events occured that made the relations between the governor and at least the Quaker portion of the community still more strained. He and the proprietor's son, together with a crowd of fast young men, indulged in nightly carousals. One evening they were found by a constable in a disreputable resort. Not recog- nizing the governor and his companion, the officer attempted to arrest them. In the scuffle that followed he was rather roughly handled. Wm. Penn Jr. among several others was presented by the grand jury before the mayor's court in Philadelphia, and charged with assault. He was not pun- ished, but the treatment he received made him furiously angry. He then and there threw off his Quaker garb, severed his connections with the society, and ere long re- turned to England." About the same time the mayor of Philadelphia complained against the exemption from civic duties granted to members of the militia, against the refusal of the governor to license persons recommended by the mayor's court to keep taverns, and lastly against the fact that the sen- tence imposed by that court upon the keeper of the disrep- utable resort just mentioned, had been set aside by a proclama- tion issued by the governor. Evans replied defending his course in establishing the militia, and hinting that much of the opposition to it came not from any principle against it, " but through an uneasiness to see anything done under the present administration," that might serve to recommend to the favor- able notice of the crown both the proprietor and the people. The second matter of complaint he thought should be decided by persons qualified to judge. To the third complaint he re- turned an evasive answer, but promised his assistance in sup- pressing vice and disorder.2 Not long after an encounter be-
1 Penn and Logan Corresp., i, pp. 318-320, 322; Watson, Annals of Phila- delphia, i, pp. 104-5; The Friend, xviii, p. 362; Votes, i, pt. ii, p. 184; Gordon, Hist. of Pa., pp. 150, 610-II.
2 Col. Rec., ii, pp. 160-162.
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tween members of the militia and the city watch occurred, but with some difficulty the disturbance was quelled.1
In October Evans met the assembly and found it in rather a sullen mood. To its request that he would state his opinion on the three bills submitted by the previous assembly, he said. that his duty was to consider bills offered by the present as- sembly only. The response to his assertion was in the shape of a bill to confirm the charter, another to confirm property rights,2 and still another providing for affirmations in lieu of oaths. In discussing again whether the charter had deprived the governor of his power of prorogation and dissolution, the council spent considerable time, but arrived at no definite con- clusion. The assembly refused to accept the amendments. made by the governor,3 and when Evans and the council resolved that, in order thoroughly to examine the matters. in dispute a grand conference of council and assembly should be held, the house informed his honor that it was " willing to. wait on him by a committee." In decided terms Evans ex- pressed his disapproval of this proceeding. The assembly told him in reply that it thought a select committee could do all that might be needful, and that this was the course usually adopted by parliament, to all the privileges of which by charter it had an undoubted right.4 After warmly expostulating with the assembly because of its delay and inaction, the governor said to the members, "I desire you * to maintain and fortify your real privileges as Englishmen, which is the power of making yourselves by the benefit of your constitution, in a great measure happy, and not weaken or render them fruit- less by tedious delays in unnecessary scrutinies into their
1 Col. Rec., ii, p. 171.
2 Both this bill and its predecessor contained many of the demands, which in chapter iii, on the land system, we noticed were not acceded to by the proprietor. Votes, i, pt. ii, pp. 21-22.
3 Ibid., pp. 23-25 ; Col. Rec., ii, pp. 168-172.
4 Col. Rec., ii, pp. 174-177.
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extent." Meanwhile it seems that Evans had learned of a "remonstrance " supposed to have been drawn up by the assembly and ordered by that body to be sent to the pro- prietor. He now demanded to know what was in that re- monstrance, and promised, if there were any real grievances, to see that they were redressed. The assembly thereupon agreed that an attempt should be made to intercept it before it was carried to England. At the same time, on further con- sideration, the assembly told Evans that in the remonstrance it had simply protested against violations of the charter of privileges, that it had used no unbecoming language, and that in the position taken it felt assured of support from its con- stituents. Then closing with a sweeping criticism of the ·council, the assembly voted that the entire history of its "contest with the governor should be published.1
This famous remonstrance of 1704 was one of the severest blows dealt to the proprietor. It was drawn up during the heat of the discussion about the governor's power of proroga- tion and dissolution. In August of this year the assembly ordered a representation to the proprietor to be prepared by the speaker, David Lloyd, and two other members. In it they were to deal plainly with the proprietor, and to tell him how inconsistent were his commissions to Gov. Evans and his ""former orders and proceedings " in the administration of the government with the privileges and immunities he by his charter had promised to the people. It then, probably at the suggestion of Lloyd, entered upon its minutes the following heads of complaint :
" First, that the proprietary at the first settling of this pro- vince promised large privileges, and granted several charters to the people, but by his artifices brought them all at his will and pleasure to defeat.
"Secondly, that dissolution and prorogation, and calling as- semblies by his writs empowered by his commission to his 1 Votes, i, pt. ii, pp. 24-33; Col. Rec., ii, pp. 177-8.
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present deputy, and his orders to his former deputies and com- missioners of state, are contrary to the said charters.
" Thirdly, that he has had great sums of money last time he was here for negotiating the confirmation of our laws, and for making good terms at home for the people of this province, and ease his friends here of oaths, but we find none of our laws are confirmed, nor any relief against oaths, but an order from the queen to require oaths to be administered, whereby the Quakers are disabled to sit in courts.
" Fourthly, that there has been no surveyor general since Ed- ward Pennington died, but great abuses by surveyors, and great extortions by them and the other officers concerned in property, by reason of the proprietary's refusing to pass that law proposed by the assembly in 1701 to regulate fees, etc.
" Fifthly, that we are like to be remediless in everything that he hath not particularly granted or made express provision for ; because the present deputy calls it a great hardship upon him, and some of the council urge it as absurd and unreason- able to desire or expect any enlargement or explanation by him of what the proprietary granted.
" Sixthly, that we are also left remediless in this, that when we are wronged and oppressed about our civil rights by the pro- prietary, we cannot have justice done us; because the clerk of the court, being of his own putting in, refuses to make out any process, and the justices by and before whom our causes against him should be tried, are of his own appointment, by means whereof he becomes judge in his own case, which is against natural equity.
" Seventhly, that sheriffs and other officers of the greatest trust in the government, which the proprietary hath commis- sionated, being men of no visible estates; and if any of them have. given security it was to himself, so that the people whom these officers have abused and defrauded can reap no benefit of such security.
" Eighthly, that although the commissioners of property have
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power by their commissions to make satisfaction where people have not their full quantity of land according to their purchase, yet they neglect and delay doing right in that behalf.
" Ninthly, that we charge the proprietary not to surrender the government, taking notice of the intimation he had given of making terms, etc., and let him know how vice grows of late."I
Whatever Benjamin Franklin may have insinuated to the con- trary, the remonstrance, as drawn up by David Lloyd, presum- ably in accordance with these heads of complaint, but really with a variety of elaborations, is a series of studied insults and exag- gerations, portraying the proprietor as well nigh a heartless tyrant, and the people as suffering severe oppression. In fact its language is in no respect that of" open and intrepid defenders of the public liberties," says a Pennsylvania historian,2 " but the bitter, sarcastic language of long- subdued anger." The assembly was of course represented as the spotless champion of the people's rights.3 But Isaac Norris, one of the most conservative men in the province, did not think so. His opin- ion, though given several years later, applies with equal force to the assembly of 1704. Writing to the proprietor, Decem- ber 2, 1709, he said, " I think too much prevails when such a col- lective body, with whom business ought to be done, that should look at solids and substantials, set up for witty critics upon everything that is said or done, and grow voluminous, always remonstrating and valuing the last word highly. * * * The air of grandeur and sacred care for the honor and dignity of the house that runs through everything, is too visible, and the secret pride thereof too plainly appears, even in the great pretensions to and professions of mean and despicable thoughts. of themselves."4
1 Votes, i, pt. ii, p. 16.
2 Hazard, Register of Pa., i, p. 388.
3 The "remonstrance" may be seen at length in Franklin, Works, iii, pp. 124- 127, 167-176.
4 Penn and Logan Corresp., ii, p. 417.
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Again, whatever Benjamin Franklin may have insinuated to the contrary, the statements of Norris and of James Logan, who were well acquainted with the whole proceeding, prove beyond .a shadow of doubt that, although the remonstrance was signed by David Lloyd as speaker of the assembly, and pre- sumably at its direction, not only was it never read before that body, and consequently was never regularly approved by it, but in order to show that all he had written and sent to the proprie- tor had received the full sanction of the assembly, Lloyd delib- erately interpolated the minutes. Not only did he do this, but in the letter to the enemies of the proprietor to whom the " re- monstrance" was first directed, he said, " I am requested in be- half of the inhabitants here to entreat that you would lay these things before him, and get such relief therein as may be ·obtained from him;" and if the proprietor should continue re- miss in his "promises and engagements," he should be obliged by, "Christian measures" to do justice "in those things in which this representation shows he has been deficient." He sup- posed that before this time they had heard of the " condition to which the poor province was brought by the late revels and disorders which young William Penn and his gang of loose fellows are found in." He declared also that the people of the province had been greatly abused by trusting in William Penn, and that the evidences they had of the governor's evil behavior, and of the proprietor's wilful neglect, had induced them to deal plainly with the proprietor.2
At a meeting of the council in Philadelphia, May 8, 1705, Gov. Evans had read before it letters from the proprietor relat- ing to the proceedings of the assembly, approving his refusal of the three bills last offered to him, copies of which had been sent to England, and directing him in all cases to assert his just rights, and to prosecute the turbulent. Methods were adopted to prove that the order to send the " remonstrance " to
1 Penn and Logan Corresp., i, pp. 329-334; ii, pp. 16, 62, 248-9, 416.
2 Ibid., i, pp. 327-8.
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the proprietor had been interpolated in the minutes of assembly, and, if possible, to bring an action of forgery against Lloyd. One of that worthy's henchmen was also to be prosecuted for his " scandalous and seditious words against the government."I Three days later Evans told the assembly that the proprietor, so far from agreeing with it in opinion, "was greatly surprised to see, instead of suitable supplies for the maintenance of gov- ernment and defraying public charges for the public safety, time only lost * * in disputes upon heads which he had fully settled before his departure, as could on the best precautions be thought convenient or reasonable." * * " He is the more astonished," continued the governor, "to find you, for whose sake chiefly and not his own he has undergone his late fatigue and expensive troubles in maintaining it, (i. e. the govern- ment) express no greater sense of gratitude than has hitherto appeared. The proprietor also further assures us that, had these three bills * * * been passed into acts here, they had cer- tainly been vacated by her majesty, being looked on by men of skill to whom they have been shown, as very great absurdities.2 But what I must not be silent in is that he highly resents that heinous indignity and most scandalous statement he has met with in the letters directed not only to himself, but to be shown to some other persons disaffected to him. * If that letter was the act of the people truly represented, he thinks such proceedings are sufficient to cancel all obligations of care over them; but if done by particular persons only, and it is an im- posture in the name of the whole, he expects that the country will * take care that due satisfaction is given him. * * * You contend and raise continual scruples about your privileges which have not been attempted to be violated, but seem to neglect what is truly so, and of the greatest importance to you. The proprietor who * * has hitherto supported the government, upon such treatment as he has met with,
1 Col. Rec., ii. p. 186.
2 Penn and Logan Corresp., i, pp. 356, 375.
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