USA > Pennsylvania > History of proprietary government in Pennsylvania > Part 27
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1 Penn and Logan Corresp., i, pp. 373-5.
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the necessary steps to annul both the charter of privileges and the charter of the city of Philadelphia.I Mompesson must have found it impossible or unadvisable to obey the order, for the charter was not annulled. As late as 1708,2 however, Penn instructed Gov. Gookin to dissolve the assembly, and if that should be impracticable to call another by writ. But Logan advised so strongly against this, that the proprietor gave up the idea.3
The last important utterance of William Penn before his mind began to grow clouded, was a letter to the assembly, June 29, 1710. "It is a mournful consideration," said he, "and the cause of deep affliction to me that I am forced by the oppres- sions and disappointments which have fallen to my share in this life, to speak to the people of that province in a language I once hoped I should never have occasion to use. But the many troubles and oppositions that I have met with from thence, oblige me in plainness and freedom to expostulate with you concerning the causes of them. When it pleased God to open a way for me to settle that colony, I had reason to expect a solid comfort from the services done to many hundreds of people; and it was no small satisfaction to me that I have not been disappointed in seeing them prosper but alas ! as to my part instead of reaping the like advantages, some of the greatest of my troubles have arose from thence, the many com- bats I have engaged in, the great pains and incredible expense for your welfare and ease, to the decay of my former estate, of which, however some there would represent it, I too sensibly feel the effects, with the undeserved opposition I have met with
1 Penn and Logan Corresp., i, p. 358.
2 In the meantime the proprietor continued to express his mind freely as to the conduct of the people, and his determination to return and reward every man according to his deserts. Among his utterances was one to the effect that certain money which Logan had sent, was the " greatest benefit that place (Pennsylvania) had yet yielded." Ibid., ii, p. 246. See also pp. 234, 271, 272, 354.
3 Thy character binds thee up from it," wrote Logan," and there must be no breach of that with this people." Ibid., p. 316.
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from thence, sink me into sorrow. * What real causes have been given on my side for that opposition to me and my interest, which I have met with as if I were an enemy and not a friend? Were I sensible you really wanted anything of me in the relation between us that would make you happier, I should readily grant it, if any reasonable man would say it were fit for you to demand, provided you would also take such measures as were fit for me to join with. * I earnestly endeavored to form such a model of government as might make all con- cerned in it easy. *
* That model appeared in some parts of it to be very inconvenient, if not impracticable. The numbers of members both in council and assembly was much too large. Some other matters also proved inconsistent with the king's charter to me, so that, according to the power reserved for an alteration, there was a necessity to make one in which, if the ' Lower Counties were brought in, it was well known at that time to be on a view of advantage to the province itself as well as to the people of those counties, and to the general satisfac- tion of those concerned, without the least apprehension of any irregularity in the method. Upon this they had another charter passed nemine contra dicente, which I always desired might be continued while you yourselves would keep up to it, and put it in practice, and many there know how much it was. against my will that, upon my last going over, it was vacated. But after this was laid aside (which indeed was begun by yourselves in Colonel Fletcher's time), I, according to my engagement, left another with all the privileges that were found convenient for your good government, and if any . part has been in any case infringed it was never by my ap- probation. *
* * But though privileges ought to be ten- derly preserved, they should not on the other hand be asserted under that name to a licentiousness. The design of government is to preserve good order, which may be equally broke in upon by the turbulent endeavors of the people, as well as the overstraining of power in a governor. I designed
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the people should be secured of an annual fixed election and assembly, and that they should have the same privileges in it that any other assembly has in the queen's dominions ; among all which this is one constant rule as in the parliament here, that they should sit on their own adjournments, but to strain this expression to a power to meet at all times during the year without the governor's concurrence, would be to distort gov- ernment, to break the due proportion of the parts of it, and make the legislative the executive part of government. Yet for obtaining this power I perceive much time and money has been spent, and great struggles have been made not only for this, but some other things that cannot at all be for the ad- vantage of the people to be possessed of, particularly the appointing of judges, because the administration might by such means be so clogged, that it would be difficult, if possible, under our circumstances at some times to support it. As for my own part I desire nothing more than the tranquillity and prosperity of the province and government in all its branches; * * but seeing the frame of every government ought to be regular in itself, and every branch of it invested with sufficient power to discharge its respective duty for the sup- port of the whole, I have cause to believe that nothing could be more destructive to it than to take so much of the * executive part of the government out of the governor's hands, and lodge it in an uncertain collective body, and more espec- ially since our government is dependent, and I am answerable to the crown if the administration should fail, and a stop be put to the course of justice. On these considerations I can- not think it prudent in the people to crave these powers, be- cause not only I, but they themselves, would be in danger of suffering by it. Could I believe otherwise, I should not be against granting anything of this kind .* * I have had but too sorrowful a view and sight to complain of the manner in which I have been treated. The attacks on my reputation, the many indignities put upon me in papers sent over hither into
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the hands of those who could not be expected to make the most discreet and charitable use of them, the secret insinua- tions against my justice, besides the attempt made on my estate, * * the violence * shown to my secretary (Logan) of which *
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* I have cause to believe that had he been as much in opposition to me, as he has been understood to stand for me, he might have met with a milder treatment from his prosecutors, and to think that any man should be the more exposed there on my account, and instead of finding favor meet with enmity, for his being engaged in my service, is a melan- choly consideration. In short, when I reflect on all these heads of which I have so much cause to complain, and at the same time think of the hardships I and my suffering family have been reduced to, in no small measure owing to my en- deavors for and disappointments from that province, I cannot but mourn the unhappiness of my portion dealt to me from those of whom I had reason to expect much better and differ- ent things. Nor can I but lament the unhappiness that too many of them are bringing on themselves, who, instead of pur- suing the amicable ways of peace, love, and unity, which I at first hoped to find in that retirement, are cherishing a spirit of contention, and opposition. * Where are the distresses, grievances and oppressions that the papers sent from thence so often say you languish under ? * Could I know any real oppression you lie under that is in my power to remedy, I would be as ready on my part to remove them as you to desire it, but according to the best judgment I can make of the complaints I have seen, and you once thought I had a pretty good one, I must in a deep sense of sorrow say that I fear the kind hand of Providence * will, by the ingrati- tude of many there to the great mercies of God, hitherto shown them, be at length provoked to convince them of their un- worthiness, and, by changing the blessings that so little care has been taken by the public to deserve, into calamities, and reduce those that have been so clamorous and causelessly
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discontented to a true but smarting sense of their duty. * *
The opposition I have met with from thence must at length force me to consider more closely of my own private and sinking circumstances in relation to that province. * * I * must think there is a regard due to me that has not of late been paid. Pray consider of it fully, and think soberly what. you have to desire of me on the one hand, and ought to per- form to me on the other. * * God give you his wisdom and fear to direct you that yet our poor country may be blessed with peace, love, and industry, and we may once more meet: good friends, and live so to the end."I The wish of the pro- prietor was never gratified. Feeble in body and mind, he passed the remaining years of his life in calm retirement far from the scene of his buried hopes and crushed ambitions. " Mr. Penn was very sweet," wrote his wife, a short time before his decease, " when I kept the thoughts of business from him."2:
1 Proud, Hist. of Pa., ii, pp. 45-53.
2Passages from the Life of William Penn, p. 512.
CHAPTER V
THE COUNCIL
THE preceding chapter has given a fairly accurate idea of the constitution and duties of the council. During the gov- ernorship of Fletcher the tenure of its members was appointive, but after the close of his administration it again became elec- tive, and so continued till June 1700, when, the frame of government of 1683 having been set aside, Penn appointed his council.2 From 1684 to 1686, and from 1690 to 1692, it acted in an executive capacity.3 In conjunction with the governor, as an administrative board, furthermore, it supervised the building and repair of bridges and highways. This, however, was confined to the principal roads or "king's highways." But its powers in this respect were eventually assumed by the county authorities.4 It was a part of the legislature till 1700. But after this time it was composed mainly of the best known and most conservative inhabitants of the province, de- voted friends of the proprietors, from whom they received their appointment. It was designed that they should support the party of the proprietors, and this they ordinarily did. In truth till 17185 they acted as the real controlling force in the manage- ment of affairs, compelling both governors and assemblies to keep to some extent within bounds, and promoting meas-
1 Except in September, 1696, when Gov. Markham appointed his council. Col. Rec., i, pp. 495-6.
2 Ibid., p. 580.
3 Ibid., pp. 206, 212, 242, 317.
4 Charter and Laws of Pa., p. 285 ; Col. Rec., i, pp. 387-390, 499 ; ii, pp. 67, III ; Laws of Pa., 1700, 1715, 1732, 1762, 1765.
5 Col. Rec., iii, p. 39.
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ures which were of advantage to the proprietary family. Again, the council had certain judicial powers. Many civil cases were brought before it, either on original suit or by appeal from the county courts. It heard cases in admiralty, remanded others to the proper courts, and tried criminal cases where for any reason the regular tribunal did not act." In general, during the early period of the history of the province, it heard appeals in cases involving fro or more. In some instances trials were held without juries. It was not uncom- mon also for a committee of the council to be appointed to arbitrate between parties to a suit. As the council superin- tended the work of lower magistrates, so it could try and punish them. As a rule some of its members were county or provincial judges; but usually care was taken that judges who had heard the case in an inferior court should not be allowed to hear it again when tried on appeal.2 After a system of courts had been established, however, the judicial functions of the council were transferred to the supreme or provincial court. The only exception to this, during a brief period, 1721-1734, was the exercise by the council of the powers of a court of chancery.
Considering more specifically the legislative powers of the council after the issue of the charter of privileges, we find that the commission given by the proprietor to that body, October 28, 1701, was rather non-committal, if the charter was. intended to exclude the council from legislation. By the com- mission it was constituted a council of state to advise and assist the governor in all matters relating to the government, and to. the peace, safety and well being of the people. During the absence, or on the decease or incapacity of the governor, a part of it might exercise all power which was given by the royal charter to Penn, and which was necessary for the good gov-
1 Col. Rec., i, pp. 76, 82, 90, 317, 329, 441, 445, 477, 479 ; Charter and Laws: of Pa., pp. 164, 299.
2 Charter and Laws of Pa., p. 164.
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ernment of the province and territories, both for the adminis- tration of justice and for the security and preservation of the inhabitants. Its members, lastly, should be appointed or re- moved by the proprietor at pleasure.I Two years later, upon the decease of the deputy governor, Andrew Hamilton, the government immediately devolved on the council. At the opening of the legislative session the assembly desired that the qualifications usually required of assemblymen should be given. In reply the council stated that it did not believe the present constitution allowed it to join in legislation with the assembly ; but that the exigency of affairs compelled it to assume merely the control designed by its commission. An agreement was made, however, to give the needful qualifications, but the coun- cil asserted that this act was not to be viewed as a preliminary step toward participation in law-making. The house then re- quested a conference concerning the power of the council in legislation. But that body declared in reply that it did not believe its authority as outlined in the commission, or indicated by the practice in other colonies, extended to legislation. The assembly urged the necessity of redressing grievances and of attending to other matters which might not require actual laws. But the council refused to change its opinion.2
In 1711 the question came up again. At this time the as- sembly declared that the exclusion of the council from legisla- tion, upon the death or absence of the governor, would show a defect in the constitution.3 The following year, however, it adopted the view of the council of 1703, and a law was enacted that upon the death, or during the absence of the deputy gov- ernor, the council should exercise all powers except those of legislation, until the vacancy was filled by the proprietor or by the crown.4
1 Col. Rec., ii, p. 61. 2 Ibid., ii, pp. 105, 107, 108. 3 Ibid., P. 523.
4 In 1706, by an act entitled " An act for the further securing the administration of the government of this province," it had been provided that, upon the death or ab- sence of the lieutenant governor. the president of the council and five members thereof
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With regard to the participation of the council in the work of legislating when the governor was present, the assembly took a different view. Logan had advised the proprietor to order that the deputy governor should act with the advice and consent of the council, of which he himself was a member. Accordingly Penn instructed Hamilton, Evans, Gookin and Keith, at the beginning of their respective governorships, to pass no bills without the approval of the council.1 We have already observed that the charter of privileges makes no spe- cific mention of the council as acting in a legislative capacity. What the omission signified is a matter of doubt. The assem- bly believed that it was the intention of the framers of the charter to establish a legislature which should consist only of itself and the governor. But the general conduct of Penn, as well as his various plans and practices, made it evident that he wished no governor to act without the advice and consent of the council.2 The friends of the proprietor argued that ap- pointed councils existed in the other provinces, and that, though the action of such a body of appointees might some- times be a hardship to individuals, still that contingency did not affect the constitutional question, whether the proprietor or his deputy could avail himself of the services of such a body in the work of law-making. When the proprietor was present in
might " take upon them the government of the province, with as full power and authority as any lieutenant governor." But in 1709 the act was repealed by the crown. The reason given by the attorney-general was that " her majesty's appro- bation of a lieutenant governor might be eluded ; at least so long as the proprietor should think fit to continue the government in the hands of the president and council." Pa. Arch., Ist series, i, p. 155; Bradford, Laws of Pa.
1 Penn and Logan Corresp., i, p. 268; ii, 291 ; Votes, ii, pp. 419-424 ; Col. Rec., ii, p. 496 ; Penn MSS., Offic. Corresp., i, J. Logan to Mrs. Penn, Feb. 1, 1726. Gov. Gordon was similarly instructed. Ibid., P. Gordon to Mrs. Penn, Oct. 18, 1726. 2 " I desire, therefore, that the assembly may * * * * consider what is fit for them in modesty to ask of the crown, as well as me. * * * I desire they may propose only what is necessary and reasonable in itself, and to all such things, as far as they shall be approved by the council, I desire thee to concur." W. Penn to Gov. Gookin, March 14, 1711, Mem. Pa. Hist. Soc., iv, pt. i, pp. 208-9; Votes, ii, pp. 419-24.
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person he could reject any bill. Hence common justice would allow him to be on the alert lest anything unsatisfactory should become a law in his absence, and this was best guarded against by causing the governor to follow the advice and consent of the council. Unless thie proprietor could have some such secur- ity, they believed that he might suffer serious detriment, if his deputy could be persuaded to do anything inimical to his in- terest.1 Therefore, in 1704, when a certain bill came before the governor and council, the latter resolved that it should not be passed without amendment. Conferences with the assem- bly followed, but it refused to admit that the council had any legislative powers2 when the governor was present. Two years later Gov. Evans expressed the opinion that, although the co- operation of the council was held to be confined exclusively to matters of state, it could not by that course of reasoning be excluded from a share in legislation; for, said he, the passing of a bill into a law was so much a matter of state as to affect the interest of the queen, of the proprietor, and of the people.3 But the house adhered to his opinion. Until 1763, however, at which time John Penn assumed the gubernatorial office, the proprietors instructed all the governors to perform no act of government without the consent,4 as well as the advice of the council. The possession of this power enabled that body often to exercise an indefinite, but none the less real, influence over legislation.
1 Mrs. Penn, by her instructions to Gov. Keith, May 26, 1724, had ordered that at least one-half the council should be Quakers, and that the total membership was never to exceed twelve or be less than eight. The latter rule was adhered to thereafter. Votes, ii, pp. 414, 419-424.
" Thomas Penn wrote to Mr. Peters, March 30, 1748 (Penn MSS., Supp. Proc.), that the council could not "join with the assembly in the making of any law."
3 Col. Rec., ii, pp. 271-2.
" Penn MSS., P. L. B., viii, T. P. to John Penn, Feb. 10, 1764.
CHAPTER VI
THE LOWER COUNTIES
IN the discussion of the boundary dispute with Maryland we have seen that the rights which William Penn possessed in the Lower Counties were obtained, August 24, 1682, by the deeds of enfeoffment from the Duke of York. But we have also seen that, aside from the precarious claim that they were "an ap- pendix to New York," the title of the duke to the Lower Counties was not valid until March 22, 1683, when they were granted to him by Charles II. The deeds of enfeoffment there- fore were worthless, except possibly to show an intention of the duke, which at a later time he might more fully carry out. In 1685, however, when the duke became James II., the title to the Lower Counties was vested legally in the crown, and so remained until the Revolution. Hence the right which Penn claimed to both the soil and the government of that region rested merely on the acquiescence of the crown. In fact, in the royal approbation of the commissions issued to Gov. Evans in July 1703,1 and to all succeeding governors, there was a clause which provided that the governor should exercise jurisdiction over the Lower Counties only during the pleasure of the crown. The comparative unimportance of this section of country probably accounts for the failure of the king directly to assume the government.
Passing now to a consideration of the causes which led to the union of the province and the Lower Counties, we find that, at the assembly held at Chester in December 1682, a petition was presented by eighteen representatives of the latter. In the
1 Col. Rec., ii, p. 115; Penn and Logan Corresp, ii, p. 66. [322
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name of their constituents the following request was made : " We humbly desire that we may be favored with an act of union by the governor and assembly for our incorporation in and with the province of Pennsylvania, in order to the enjoy- ment of all the rights and privileges of the aforesaid province, and that we may ever after be esteemed, and accounted as free- men of the before mentioned province. This being our desire and humble request in the assembly, we have desired the pres- ident and two other members of the upper counties, part of this province, to present it to your honors, and if we are so happy to obtain our request, we will forever acknowledge it, and in all faithfulness subscribe ourselves yours in all lawful obedience.I" The reason for this petition is not hard to as- certain. The population of the Lower Counties was not nu- merous. The people there were exposed to encroachments from Maryland. For several years they had been under the strict jurisdiction of the authorities at New York. William Penn's kindness and magnanimity were well known. His title on the face of it seemed valid enough. To unite with the province therefore appeared to be a happy solution of their diffi- culties. 'At any rate the proposition was favorably received by the proprietor and the representatives of the province, and on December 7, an act of union was the result. It was stated that, " whereas the freemen of the said counties have by their deputies humbly besought their present proprietary and governor to annex the said counties to the province of Pennsylvania, and to grant unto them the same privileges, and that they may live under the same laws and government that the inhabitants of the said province now do, or hereafter shall, enjoy, and since the union of two distinct people that are under one governor is both most desirable in itself, and beneficial to the public, and that it cannot be so cordially and durably maintained to the mutual benefits of each other as by
1 For the sake of clearness this quotation has been slightly altered from Hazard, Annals of Pa., p. 610.
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making them equally sharers in benefits and privileges," it was enacted that the Lower Counties should be annexed to the province, and that the people thereof should be governed by the same laws, and should enjoy the same privileges as were, or should be, possessed by the people of Pennsylvania." But whatever " rights, privileges, franchises, royalties and jurisdic- tions" may have been granted to Penn by the Duke of York, they did not, and could not, legally empower him either to as- sume the government of the Lower Counties, or to unite them with the province. However innocent may have been the in- tention of the proprietor, and however sure he may have been of the validity of his title, his act was clearly one of usurpa- tion.2 This weakness of title, then, may be reckoned as the first of the causes underlying the later disagreement between the two sections of country. Another cause was the differ- ence between the people themselves. Those in Pennsylvania were of English birth, while the inhabitants of the Lower Counties were for the most part of Dutch and Swedish parent- age. Their religious beliefs also differed. The people of the province were Quakers, but those in the Lower Counties were Calvinists, Lutherans, or Episcopalians. For many years there was considerable commercial rivalry between Newcastle and Philadelphia.3 Chester county and Newcastle county dis- agreed as to their respective boundaries. The distance of the Lower Counties from Philadelphia, the place where the ses- sions of the council and assembly were held, often prevented a regular attendance of the representatives. Both these facts led to disputed elections. Lastly, personal and political jeal- ousies may be considered as potent factors in the quarrel.
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