USA > Pennsylvania > History of proprietary government in Pennsylvania > Part 28
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1 Charter and Laws of Pa., p. 104.
2 That Penn may have cherished a dim idea of this fact seems to be shown by the closing words of the act of union, viz .: " Given at Chester, alias Upland, this 7 day of December, 1682, being the second year of the government of William Penn, proprietary and governor of Pennsylvania, by the king's authority."
3 Penn and Logan Corresp., ii, p. 325 et seq.
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Sectionalism then was the deep, underlying cause. The peo- ple of the Lower Counties, as they realized the expansion of which the province was capable, feared its political supremacy, and took measures to check it before the balance of power had been lost.
While the proprietor was still in the province, in March, 1684, the first note of the coming conflict was heard. A com- plaint came before him and the council charging him with want of faith in not entering and clearing certain vessels at Newcastle. Other malcontents complained to the governor of Maryland that their taxes were too high.ª Measures were taken to pacify the complainants, but the trouble did not cease. Two members of the council from the Lower Counties were for supposed misconduct dismissed from it.2 For a while the council refused to issue writs to fill the vacancies. Then the assembly, in May, 1687, induced by a request from the representatives for Sussex county, resolved " that the president and council be moved that the counties may not suffer a vacancy by the suspension of members, but that the persons may either be re-admitted, or else writs issued out to the re- spective places for a new choice." Because the Lower Coun- ties feared the partiality of the provincial court when its mem- bers came exclusively from the province, it was also resolved that the president and council be requested that, for the contin- uing of a good understanding between the province and the Lower Counties, there might be at least one of the provincial judges chosen from the latter. In reply the council stated that, " if a suspended member be not admitted nor clear him- self within two months, then a new writ shall be issued to choose another according to law." In the choice of judges also there should be "tender regard and due respect had to the Lower Counties."3
About this time another event happened which contrib- Col. Rec., i, p. 101. 2 Ibid., pp. 176, 196-198.
$ Ibid., pp. 203-204; Votes, i, pt. i, p. 40.
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uted to increase the ill-feeling. It seems that John Gran- tham, an inhabitant of Newcastle county, had secured judg- ment and costs of suit on a bond given by Thomas Wol- laston of the same county. The county court granted im- mediate execution. Thereupon the sheriff seized and sold a portion of Wollaston's property for the benefit of Grantham. Wollaston petitioned Gov. Blackwell and the council for re- lief against a forcible entry and detainer. The governor and council then ordered a warrant to be sent to the justices of the peace who lived nearest the place where the property was located, "to view the said force" and remove it. If they found none they should require the sheriff to return a jury to ascertain whether any force had been used, and by whom. In case the jury found that force had been re- sorted to, the court should fine and imprison the offend- ers, and restore quiet possession to the petitioner. In the meantime Wollaston had made a surreptitious appeal to the provincial court, and it decreed that possession should be re-delivered to him. Grantham then appealed to the as- sembly. Upon reviewing the proceedings, it decided that the judgment of the provincial court was very severe, and asked the governor and council, as the highest court of the province, to try the case. Thereupon the governor and council went to Newcastle. The county court reported that by the judgment of the provincial court Wollaston had been given possession. But the jury had found the sheriff guilty of forcible entry on Grantham's property. This proceeding of the sheriff was characterized by the governor and council as "a great affront, and contempt of their authority." Wollaston was called be- fore them, and acknowledged that possession had been re- delivered to him. Then Grantham's wife presented a petition to the effect, that, by a judgment surreptitiously obtained, and forcibly executed, Grantham had been kept out of his just rights. In reply, Wollaston submitted a copy of the proceed- ings of the provincial court, and Grantham gave in the judg-
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ment of the county court. The governor and council decided that the debt to Grantham had not been satisfied by Wollaston. It was believed that there was no just ground of exception to the proceedings of the county court. They declared that the order of the provincial court for restoring possession was not intended to be executed till the debt and damages had been satisfied. Hence, in spite of their former orders to the county court, the governor and council confirmed Grantham in his possession, and instructed the sheriff to restore the property."
No sooner had this case been disposed of than another pre- sented itself. The justices of the county court at Newcastle complained to the governor and council that John White, the clerk of the court, had so improperly conducted himself toward them, that unless he were punished therefor, they would not serve. It appears that, in petty revenge for a censure imposed upon him by the justices on account of errors he had made in a certain transcript, he purposely made a false entry on record of statements from three of the justices to the governor and council. After a short examination of the matter, Blackwell and the council declared his act to be a misdemeanor, revoked his commission, and made a new appointment. The following year, 1690, White petitioned the council for reinstatement. In- asmuch as his commission had been for good behavior, and as he had not by due course of law been convicted of any offense, the appointee of Gov. Blackwell was soon after dismissed from office, and White was reinstated.2
After Gov. Blackwell, in 1689, had given up his position, the relations between the province and the Lower Counties be- came still more strained. At a meeting of the president and council, held September 5, 1690, five persons were commis- sioned as judges of the provincial court, and of these four were from the province.3 This was an answer to the request of the assembly, that at least one of the judges should come from the
1 Col. Rec., i, pp. 234, 236, 253, 258-260.
2 Ibid., pp. 261, 327, 329. 3 Ibid., P. 343.
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Lower Counties. But with this selection of judges certain members from the territories, who had not been present at the meeting, expressed great dissatisfaction. They desired that in one of these commissions a judge from the province should be named first, and in the other a judge from the Lower Counties, so that each first-named judge should appear to have been commissioned as president of the court, and could act as such when the sessions of the court were held in his partic- ular jurisdiction.ª The dissatisfaction culminated in a secret meeting of the councillors from the Lower Counties. After discussing their grievance in the matter of the appointment of judges, and censuring the earlier appointees for their neglect or unwillingness to perform their duties, they usurped the powers of a full board and proceeded to the nomination and choice of a new set of judges, two of whom came from the Lower Coun- ties. They resolved also that no officer should be appointed by the council to exercise jurisdiction within a given county, unless two members of the council from that county were present at the time the appointment was made. A committee was appointed to request William Markham, the keeper of the great seal, to affix it to the commissions, but he refused to do so. At a regular meeting of the president and council subse- quently held, a protest was entered against the conduct of the persons who had pretended to act as the council, and who " in an irregular and undue manner had * * issued forth pretended commissions for constituting provincial judges con-
1 This form of commissioning the judges seems to have been in accord with the action of the proprietor. In the first commission issued by him to the provincial judges, August 6, 1684, Nicholas More of Philadelphia was named first. To this commission Penn attached over his own signature a postscript distinctly stating that the commission was " for the three upper counties and the town of Philadel- phia." Another copy of the commission was made for the Lower Counties, in which William Welch of Newcastle was named first, the proof of which lies in the fact that, on September 11, 1684, the death of William Welch, presiding judge, was announced. A new commission for provincial judges was then asked for and obtained. Col. Rec., i, pp. 119-121.
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trary to the express letter of the laws." In a proclamation, which was issued shortly after, their proceedings were de- clared void.I
Another cause of dissatisfaction in the Lower Counties was the form of government adopted about this time. An at- tempted compromise of the differences, in which it was pro- posed to satisfy them with regard to the appointment of judges, and in other matters, having failed, in April, 1691, seven mem- bers from the Lower Counties filed the following protest and withdrew from the council : "The mode of the five commis- sioners was the most agreeable to them, or to the counties which they represented. The commission of the council was the next, though much less convenient than that of the five com- missioners, on account of the encroachments thereby made upon their rights and privileges by the province, in imposing officers upon them without their consent or approbation. The method of a deputy governor was the most disagreeable and grievous of any, on account of the choice of all officers being placed in a single person, and the expense or charge of his sup- port; therefore, they would not agree to accept of that commis- sion. But that rather than the country should be without government, they would consent to that of the council; pro- vided no officers whatever were imposed upon any of the three Lower Counties, without the consent of the respective members of council for these counties. They desired to excuse them- selves for not agreeing to have these things put to the vote, which, they said, they had experienced, the members for the province would scarce ever do, till they were sure it would go against them. They, in behalf of the Lower Counties, pro- tested against the acceptance of any commission but that of the five persons, and resolved that, should the province act other- wise, they would govern themselves by the commission then in force, till the proprietary's pleasure should be known therein." Notwithstanding this protest, the president and council con-
1 Col. Rec., i, pp. 344, 345 ; Proud, Hist. of Pa., i, pp. 352-4.
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tinued their endeavors to overcome the fears of these members, and to induce them to return, but in vain. They met at Phil- adelphia, August 17, 1691, but only two members from the Lower Counties were present. As soon as they were assem- bled, they entered upon the consideration of the following bill : "For as much as the present state and emergency of this government requires some speedy provision for the support and safety thereof, and for the better establishing the justice and peace of the same, by reason of the breach that the repre- sentatives of the annexed counties have lately made in wil- fully absenting themselves from their charteral attendance in the last legislative council and assembly, and declining their other incumbent duties and services to the present constitu- tions of this province; as also in opposing and tumultuously preventing the election of new members to supply the neglect of the said absenting representatives, withstanding all provin- cial acts of government, and denying the powers of the same, Therefore, * be it declared and enacted that the meetings of council since the dissent and refusal aforesaid of the representatives of the said annexed counties, and the meetings of the deputy governor and representatives of the province in provincial council and assembly met, are the provincial council and assembly of this province * to all intents, constructions and purposes."" But there is no proof that this ever became a law.
Early in 1692 the proprietor sent a commission to Thomas Lloyd to be governor of the province, and one to William Markham, who had joined with the protesting members of the council, to be governor of the Lower Counties. This Penn did most reluctantly, and evidently in the hope that the breach between the two sections would be healed, and the new com- missions would not be accepted. Writing to a friend at the same time he said. " Now I perceive Thomas Lloyd is chosen by the three upper, but not the three lower counties, and sits
1 Proud, Hist. of Pa., i, pp. 355-361.
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down with this broken choice. This has grieved and wounded me and mine I fear to the hazard of all. Whatever the morals of the Lower Counties are, it was embraced as a mercy that we got and united them to the province, and a great charter ties them, and this particular ambition has broken it; for the striving can arise from nothing else; and what is that spirit that would sooner divide the child than let things run in their own channel, but that which sacrifices all * * * to wil- fulness? Had they learned what this means, I will have mercy and not sacrifice, there had been no breaches nor ani- mosities there till I had come at least. I desire thee to write to them, which they will mind now more than upon the spot, and lay their union upon them, for else the governor of New York is like to have all, if he has it not already."I To re- lieve the mind of the proprietor, and to present to him the affairs of the province and the Lower Counties in a more favor- able light, shortly after receiving their commissions, the two deputy governors and their councils addressed to Penn a letter. In it, for the sake of harmony, they agreed to be satisfied with the plan of the two deputies last proposed, and announced it as the intention of the province and of the Lower Counties to act together in council in the promulgation of a few bills to be submitted to the consideration of the next assembly.2 But the sessions of this assembly and the deputy governors and coun- cils were not harmonious, and came to an abrupt termination.
Aside from the fact that the publication of Gov. Fletcher's commission at Newcastle was followed by "firing of guns, great shouting and joy,"3 no other event of importance in the struggle is to be recorded till 1699. It seems that in 1683 Penn had appointed Capt. Peter Alrichs as commander of the fort at Newcastle. Six years later, when the wisdom of establishing a militia was agitated, the members of the council from the Lower Counties were strongly in favor of it.
1 Proud, Hist of Pa., i, pp. 357-8.
3 Col. Rec., i, p. 369.
2 Ibid., p. 362.
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Indeed, a petition was sent to the council requesting it " to set- tle the country in such a posture," that, by force of arms, it might be well defended against its enemies. In reply the coun- cil appointed a committee to investigate the conduct of French- men who were in the province, and to assure the Indians of the friendship of the English. This was not satisfactory to the Lower Counties and a company of militia was formed there.I Furthermore, in 1696 and 1697 the court of Sussex. county sent to Gov. Markham and the council a petition for pro- tection against the French, urging that many depredations had. been committed and that at that moment a French war vessel was in the vicinity. The councilmen referred the matter to the governor and resolved that any expense he might incur therein should be defrayed by a provincial tax.2 But the failure to make adequate provision for their defence caused the inhabi- tants of Newcastle county, in 1699, to raise such a disturbance. on the day of the election, that no representatives either for- council or assembly were chosen. When the returns of the. election were opened, it was found that the sheriff of that county had sent to Gov. Markham and the council a half sheet of blank paper, and a letter containing this message. " I here enclosed send you the return of the names of the council and assemblymen chosen here. * To give you any reason for such an election is beyond my power; have had no discourse with any of the electors about it." One Major Donaldson is- particularly mentioned as having been a party to the disturb- ance, and the governor and council were very indignant over certain letters written by him, as well as provoked at the im- pudent return of the sheriff. Markham then called the at- tention of the assembly to the matter. A grand committee, consisting of all the members of the council and assembly, sharply censured the conduct of the sheriff and Donaldson, and characterized the letters written by them as " a great in- dignity, and high misdemeanor against the government." The
1 Col. Rec., i, pp. 334, 335, 337. 2 Ibid., pp. 524, 539-541.
1
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committee further recommended that the offenders should be brought before the council to answer their misconduct. But they both disavowed any intention of wrong-doing, and the sheriff declared that he had sent the blank sheet of paper as a joke. Both were dismissed without punishment." But in order to avoid the repetition of such proceedings, a law " concerning ·elections of representatives in council and assembly " was im- mediately enacted. It provided that, if the freemen of any county within the province or the territories should neglect, or refuse to elect their representatives for council and assembly, they should be fined £100 by the governor and council. For neglect of duty on the part of a sheriff $50 was the pen- alty. Absence from the council or assembly was punished in each case by a fine not exceeding twenty shillings. Moreover, if, by reason of refusal or neglect to send representatives, the quorum required by the frame of government could not be obtained, it should then be lawful for "the members of council and assembly that do meet with the governor or his deputies to act and proceed in all matters requisite and neces- sary for executing the powers of the government."2 A few months later a petition for defence was sent from Newcastle county to Markham and the council. In reply the council stated that, if the fort at Newcastle was inadequate to afford protection, it was the fault of the people dwelling there. It declared that the building of large forts involved too great an expense. Then it referred to the refusal of the people in the county to send representatives, and postponed further consideration of the matter till the arrival of the proprietor.3
In October, 1700, Penn summoned an assembly, but, owing to the lack of sufficient notice of the election, the returns from Newcastle county were thrown out. The proprietor then is- sued new writs to fill the vacancies. For a while several of
1 Col. Rec., i, pp, 567, 569, 570.
2 Charter and Laws of Pa., pp. 278-9.
3 Col. Rec., i, pp. 562-564.
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the members from the Lower Counties failed to appear. At length the house asked the proprietor if the act of union was in force. Penn replied that it was. The members from the Lower Counties then made the following suggestion: "That the union shall be confirmed on condition that at no time here- after the number of representatives of the people in legislation in the province shall exceed thiem of the annexed counties ; but if hereafter more counties be made in the province, and thereby more representatives be added, that then the union shall cease." To this the assemblymen from the province would not agree. Thereupon, Penn proposed that all acts which particularly affected the Lower Counties should require for their passage a two-thirds vote of the members from that section, and a majority vote of those from the province. In reply the assembly resolved that, although there had been some uncertainty about the "construction of the words equal privileges in the act of union, the Lower County members being of opinion that the act is not in force according to its primitive institution," still, the necessary legislative business of the session should be attended to, and the matters in dispute should be left to the consideration of the next assembly. This is the first distinct appearance of the jealousy cherished by the Lower Counties of the political supremacy of the province. At the close of the session, however, it was resolved that one clause of the proposed charter of privileges should provide for the holding of certain sessions of the assembly in the Lower Counties.I
In July of the following year, Penn called a special session of the assembly to consider a letter from the king command- ing a contribution to be sent for the defense of New York .. The members from the province sent an evasive answer. But seven representatives of the Lower Counties requested the proprietor to inform the king of their defenceless condition. "His majesty," said they, " hath not been pleased to take
1 Votes, i, pt. i, pp. 130, 131, 140.
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notice of us in the way of protection, having neither stand- ing militia nor persons empowered to command the people in case of invasion * * These things we hope by your honor's influence will incite his majesty to take into consideration our present circumstances, and not require any contribution from us for forts abroad, before we are able to build any for our own defense at home."I Two months later he again summoned the assembly. It had been in session only a short time when the smouldering discontent of the Lower Counties burst forth. Early in October a petition from Phila- delphia was sent to the council, complaining " that, by reason of sundry objections made to the law passed at Newcastle, being without [the] bounds of the province," the people refused to obey it. Hence it was desired that the laws passed at the session of the assembly held at Newcastle in 1700 should be confirmed. A bill to this effect was promptly drawn by the council and sent to the assembly.2 Thereupon certain mem- bers of assembly from the Lower Counties called upon the proprietor and protested that the bill "carried with it conse- quences highly injurious and destructive to the privileges " of that section. As they could not participate in the proceedings without manifest injustice to their constituents, they told him that they thought it advisable to return home. Penn asked them to state their opinions more definitely. One of the mem- bers then read a paper which contained their views as follows: " The laws made at Newcastle, being owned on both sides to be good in themselves, must suppose some reason to re-enact or confirm them. But the reasons mentioned in a certain petition brought in by the justices and officers of the court of Philadelphia have not strength, they having convicted none of disaffection to the laws passed at Newcastle, nor performed the execution past of the law, which in that case was their duty. In the bill brought into the house from the governor, no reason is alleged for the confirmation of laws but this, that it 1 Col. Rec., ii, p. 31. 2 Ibid., p. 47.
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is usual and customary. But the laws so confirmed were only temporary, and a necessity in those cases were the reason, which cannot hold in this, and we know it becomes no as- sembly to enact or confirm laws without reason. Further, the consequence will be fatal to the Lower Counties, for their representatives cannot make laws in the territories, but must come into the province to make laws which must affect the territories, which we think very unreasonable. Further, by the late act of union, the Lower Counties were to have equal privileges in all things relating to the government with the 1
upper, but to say or own the laws passed at Newcastle want confirmation here, is to discourage Newcastle to be the seat of the assembly hereafter, and to humor some persons but supposed to be disaffected, we shall incur the clamor of many hundreds in our own counties. Lastly, if the laws made at Newcastle be not binding, we cannot conceive that their being confirmed here with the Lower Counties in conjunction with the upper, will add any force or strength to them, unless they please to show us what power they have more to make laws with us in the province, than we have to make laws with them in the territories." In reply the proprietor discussed the ques- tion at some length, dwelling particularly on the fact that the practice of confirming laws had been frequent, both in Penn- sylvania and in England. For the laws to be confirmed, he thought, was no derogation to their validity. He acknowl- edged, however, that, if he were to remain in the province, he would not be in favor of the plan. Still, as some foolish contests had arisen, which, however groundless, “ might be improved in the governor's absence and drive them all into confusion," he desired that before he went, all difficulties might be removed; and said " that he took it very unkind to himself in particular [that] they would now give occasion of a rupture, such a return as they would find perhaps he deserved better from their hands." To this they replied that it was not through any personal dislike to him, for whom they had
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