USA > Pennsylvania > History of proprietary government in Pennsylvania > Part 29
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always a sincere respect, but that they must be just to their constituents, and that therefore they could not proceed, un- less they could act safely in regard to the privileges of the Lower Counties. The proprietor then sent for all the mem- bers of assembly from both sections of country. He told them that it was no small wound to him, to think that, at the earnest request of the Lower Counties, and with the good-will of the province, he had undergone considerable expense to unite them, only to find that they were on the point of destroying their unity. He called their attention to the fact that the royal commission to Fletcher as governor, his own letters patent of restoration to authority, and the subse- quent letters from the king, had recognized their unity, in that both he and Fletcher had been named therein as governors of the Lower Counties, as well as of the province. He begged them to be careful in what they did, "lest it should look too unkind now at his departure, and carry a very ill report of them all to England." The members from the Lower Counties asserted that, whatever might have been the case at first, they had for some time been great sufferers by the act of union, and that they could not endure the expense incident to it. The proprietor then told them that they were " free to break off, and might act distinctly by themselves." With this the mem- bers from the Lower Counties expressed themselves greatly pleased. But Penn cautioned them that the separation mnst be only upon amicable terms. "They must first resolve to settle the laws, and, as the interest of the province and those Lower Counties would be inseparably the same, they should both use a conduct to each other consistent with that rela- tion."I The next day the proprietor sent to the assembly the following letter: " Friends, your union is what I de- sire, but your peace and accommodation of one another is what I must expect from you. The reputation of it is some- thing; the reality much more. I desire you to remember and
1 Col. Rec., ii, pp. 49-51.
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observe what I say. Yield in circumstantials to preserve essen- tials, and being safe in one another, you will always be so in esteem with me. Make me not sad now I am going to leave you, since 'tis for you as well as for your friend, proprietor and governor, W. P." Several assemblymen from the Lower Counties then told him that they had endeavored to come to some agreement in the house, but that the members from the province had "persisted so obstinately in refusing them any saving of their privileges that would be consistent either with their honor or interest, that they could not sit." They stated their intention therefore to depart for their homes. Penn did not believe the differences between them were so serious as to prevent an agreement, and suggested that messages should be sent to the opposing factions. It was at length. agreed that a general meeting to settle the differences should be held.' The result of this conference is summoned up in the terse statement of the records: "And the assembly was dissolved."2 In the charter of privileges however, there was a clause to this effect, that, if at any time within three years the representatives of the province and of the Lower Counties should refuse to act jointly in legislation, separate assemblies might be formed. The number of members from each county of the province should be doubled, and two might be sent from Philadelphia. The number of members in the assembly of the Lower Counties, should be fixed according to their wishes.3
In October 1702, when Governor Andrew Hamilton met the assembly, the difficulty was no nearer a solution than be- · fore. The Lower Counties had refused to accept the charter of privileges, and no representatives were sent from there. Those from the province immediately requested that they might take advantage of the opportunity afforded them to
1 Col. Rec., ii, p. 52 ; Hazard, Register of Pa., xv, p. 182. 2 Ibid., p. 56. 3 Ibid., p. 60.
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separate from the Lower Counties. The governor referred to the inconveniences, particularly as to the tobacco trade, which a separation would bring upon the province. He told them that, as the right of the proprietor to the Lower Counties was at that moment disputed in England, if the province formed an assembly distinct by itself, the Lower Counties in all probability would "remonstrate to the queen, that having hitherto been under the government of Pennsylvania, they were now rejected and thrown off, and so became utterly destitute of all form of government." They would then ask the queen to take them under her immediate protec- tion. This, said the governor, would be the readiest means to defeat the proprietor in what he was endeavoring to do for them. Upon the whole, he thought, it would be wiser to defer the application for separate assemblies, till more definite intel- ligence of the state of affairs in England' could be secured. To this the representatives replied that they "had long groaned under the hardship" of the act of union. Now that by the charter of privileges an opportunity to free themselves from this hardship had been afforded, they felt themselves obliged to make use of it for their safety and quiet in the future. An open conference between the council and the representatives
1 Edward Randolph, surveyor of the customs, and Robert Quary, judge of the admiralty, were very active in fomenting this dispute between the province and the Lower Counties, probably with the hope that the crown would assume juris- diction over the latter, if not over both. Chalmers, Revolt of the American Colo- nies, i, p. 380. In an address in 1701 to the Board of Trade from the members of the assembly from the Lower Counties, protection against French privateers and other piratical marauders was requested. The dangers to which they were ex- posed by sea and land were vividly depicted. It stated that Col. Quary, who was the bearer of it, was well acquainted with all the circumstances, and complained that Penn, when appealed to for relief, had " answered either with silence, or in- effectual discourse." To a copy of this address is affixed the following in Penn's handwriting : " Have not some of these men bravely rewarded me?" Coll., Pa. Hist. Soc., i, no. 4, p. 278. The following year a bitter complaint against Penn's misgovernment of the Lower Counties was made to the Board of Trade, and a petition was sent to the queen to take them under her immediate govern- ment. Mem., Pa. Hist. Soc., iv, pt. ii, pp. 324, 327, 329, 332.
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was then arranged. In the meantime the council resolved that, as some persons in the Lower Counties had declared "that had writs been sent to their sheriffs as usual, they would have elected together with the province, to the end it may not appear that the province doth designedly throw off and separate themselves from the said counties without any cause given on their sides, it will therefore be highly for the justi-
fication of the province * * as well as justice to the said counties, that they have an opportunity of appearing given them, that measures may be better concerted; and that should they refuse or neglect to send up members, the province will then be clear." Furthermore, the council resolved that it would " press with all earnestness the arguments that have before been used, and endeavor to convince them that, not- withstanding the practices of some who, appearing their friends, should impose upon them and lead them to confusion," the governor and council, in the conference held with them, had no other purpose than their real advantage.I
The result of the conference was, that the representatives of the province agreed to consider the question further, and desired to adjourn that they might consult their constituents. The governor asked them whether this was offered in accord- ance with the proposal made to them that sufficient time should be allowed to summon representatives from the Lower Counties to act with them. Avoiding a direct answer, they said that, what upon mature consideration they had decided, they had declared, and had not agreed to say anything more on that head. It was not for them to direct what course the governor should pursue. Hamilton then granted their request, and ordered writs of election to be sent to the sheriffs of the Lower Counties.2 But a month later the governor was informed by the deputies who had been elected there that, as the represen- tatives of the province had been chosen under the charter of privileges, while they themselves had been elected under writs
1 Col. Rec., ii, pp. 72-74.
2 Ibid., pp. 74-75.
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issued several days later, they could not sit in assembly to- gether. The governor replied that this was due to their ne- glect to obey the provisions of the charter of privileges. They insisted that it had never been accepted by the Lower Counties, and therefore was not binding on them. Hamilton declared that it was signed by the speaker at the order of the house, of which at the time they were a part. But they re- plied that, at the time it was signed, the members of assembly from the Lower Counties were not present, hence, they were not concerned with it. In spite of the governor's arguments to the contrary, they adhered to the opinion that the different methods of election prevented their acting with the represen- tatives of the province. Some thought the representatives, as a convention of the people of the two sections, might confer together. Others believed they were fully empowered to act as an assembly. To the latter view the members from the Lower Counties would not accede, and hinted that they had been called merely as a plausible excuse for the province to separ- ate from them. After further consideration, the representa- tives of the province declared their willingness to proceed to legislation, but the other faction held the opinion that they could not join with them on the present footing without be- traying their privileges, and consenting now to what before they had expressly refused, i. e., to the charter of privileges.
The governor and council then resolved that the representa- tives of both the province and the Lower Counties had been legally elected, and that, as the writs had been issued under powers granted by the charter, by holding an election in obed- ience to them the Lower Counties had recognized the charter as valid.2 Thereupon, they sent to the deputies the following questions : Whether the representatives of the province were willing to proceed in legislation with those of the Lower Counties ? whether the latter would do the same? and what methods would the recusant party suggest for the formation of
1 Col. Rec., ii, pp. 75-76. 2 Ibid., pp. 76-81.
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an assembly ? The former replied, " We * * are both willing and desirous to proceed in order to act in assembly according to the direction of the charter, being the foot on which we conceive ourselves called and convened." The latter answered, that, " finding they are called here on a different foot with those of the upper counties cannot, if there was no other obstacle, join with them in legislation ; but are cheerful and willing, when warrantably convened, to proceed in assembly * though they'll not presume to direct the government in what methods to convene them." The governor sharply criticised the ambiguity of both replies, and desired an explanation to be given. Did the representatives of the province mean that they were willing to proceed to legislation on the footing upon which they had been elected, or did they wish to have their representation increased as the charter had provided ? The majority of them replied that the first supposition was correct. But David Lloyd, with his usual artful obstinacy, " continued to interpose that the question might be no further urged, affirm- ing their answer was plain and clear, though the question was double and ambiguous." In this opposition he was supported by the representatives of the Lower Counties.ª In despair of affecting any agreement, the governor resolved to dismiss them. The representatives of the province immediately asked him to allow the additional members to be elected. The request met with a refusal. A few months later the governor died, and the dispute for a time ceased.2
In February 1704, when Gov. Evans relieved the president and council of their duties, he asked their opinion as to the wisdom of calling an assembly. To his surprise,3 he was in-
1 Col. Rec., ii, pp. 82-83.
2 lbid., pp. 83-86, 88.
3 On Feb. 15, 1704, Logan wrote to the proprietor that Evans was " exceeding troubled that he understood nothing of this difference between the upper and lower counties before he left England." Penn and Logan Corresp., i, p. 268. This statement of Logan, who was on the spot, completely refutes Benjamin Franklin's assertion ( Works, iii, p. 160), that Evans " affected to be surprised at finding them in separate states." See Col. Rec., ii, p. 126.
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formed that there was an " assembly in the province now in be- ing, separate from the territories, in pursuance of a certain charter of privileges * * * which had occasioned some diffi- culties."I The governor, having increased the number of the council by the addition of several persons from the Lower Counties as well as from the province, told it that the first sub- ject to claim its "thoughts and care" was the calling of an assembly. Thereupon the council declared that, by virtue of a clause in the charter of privileges, " several steps had been made towards a division of the province and territories in legislation, which had been strenuously opposed from time to time by the governor and council." Hence, it was resolved " that, considering the province and territories had ever hitherto been joined in one government and were now continued so, both by the proprietor's commission to and the queen's appro- bation of the present lieutenant governor, and because it may be justly feared that the consequences of a separation may prove very injurious to both; therefore, notwithstanding all the advances that have been made towards a separation, all endeavors should be used to keep the whole still united to- gether, as well in legislation as administration."2 The governor then held a conference with certain leading men of the Lower Counties. In agreement with them he judged it would be ad- visable to send writs there to elect in each county four mem- bers of assembly.3
In April the opposing parties met once more in Philadel- phia. When the representatives of the province came to the council room the governor called in the representatives of the Lower Counties. The former immediately expressed surprise that they found in the room any persons other than the mem- bers of the council. Evans stated that, before they proceeded to business, he desired to give them his opinion of the most suitable method for the joint action of the two sets of represen- tatives. They replied that the representatives of the province 1 Col. Rec., ii, p. 116.
2 Ibid., p. 119. 3 Ibid., p. 120.
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constituted an assembly by themselves, and that to admit of any other arrangement would infringe their privileges. The governor declared that he would ever be careful of their privileges. He referred to the importance of a well-regulated legislative power. "I am well assured, gentlemen," said he, "by all my orders, that her majesty considers both this province and territories as one entire government, and both the royal approbation and my commission tell me that I ought to use my utmost endeavors to keep them so." Common inter- est also, he thought, should keep them together. Calling their attention to the advantages of harmony in their proceedings, he desired them to make every effort to bring about an agree- ment.1 The representatives of the Lower Counties offered to join in legislation with the province, and to accept the charter of privileges,2 provided each county should be represented by four members only. This the representatives of the province were unwilling to grant, and " persisted in their opinion, that, without violating their charter, they could not recede from what they had done, nor lessen * their numbers.3 Hence, both
1 Col. Rec., ii, pp. 126-127.
2 At this time James Logan wrote to the proprietor : " There was mighty canvass- ing on that side pretending the church (of England), but nothing could be car- ried, notwithstanding the clergy all around used all endeavors. * * * That un- happy charter thou granted * * will most certainly utterly separate the province and territories, I doubt to our confusion." Penn and Logan Corresp., i, p. 282.
3 In the "remonstrance" of 1704 is the following : " As to the conveniency of the union of the province and Lower Counties, we cannot gainsay it, if the king had granted thee the government as the duke had done the soil; but to our great grief and trouble we cannot find that thou had any such grant; and if thou had thou would not produce it, though often requested so to do. Therefore, we take it the harder that thou, who knew how precarious thy power was to govern the Lower Counties, should bring thy province into such a state and condition that, whenever the crown had assumed that government, or the people there revolted or refused to act with us in legislation, as they often did, that then the said second charter (1683) should become impracticable, and the privileges thereby granted of no effect to the province, because the representatives of the Lower Counties were equal in number with those of the province, and the charter required a greater number than
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parties declared that, as things now stood, it was better for each set of representatives to act by itself. The governor, seeing that at this time all efforts to effect a union would prove fruitless, re- commended to them that in all their proceedings they would endeavor to pave the way for a consolidation in the near future.I But the union was never effected. From this time to the Rev- olution, the territory comprised within the present state of Delaware was governed by a legislature composed of a gover- nor appointed by the proprietors, and an assembly elected similarly to that of Pennsylvania. The laws passed by this legislature, however, were never sent to England for the inspection of the crown.2
William Penn viewed these proceedings with sorrow and anger. He had never intended that the separation provided for in the charter of privileges should be permanent, for, in a letter written to James Logan in 1704, he says, " I think it so scandalous by its affront to the queen, who graciously united
the province had, or by charter could elect for members of council and assembly ; and our numbers by the charter could not be increased without the revolters' con- sent." Franklin, Works, iii, pp. 125-126.
1 Col. Rec., ii, pp. 128-132.
2 " The acts passed at Newcastle I apprehend may be useful. That relating to convicts may probably do in that government, as we never send them home for the king's inspection, else it would, I suppose, be repealed, as the Lords of Trade do not like any act of that sort." P. L. B., ii, T. P. to Hamilton, Oct. 9, 1749.
In 1756 a number of Quakers intended to petition the crown against an act passed by the assembly of the Lower Counties for establishing a militia. To this end the agent of the province was instructed to request the Board of Trade to order the proprietors to submit to its inspection the complete collection of the laws passed by that assembly. But the Board refused to comply with the request. (Franklin Papers.) Thereupon Thomas Penn wrote to Gov. Denny, Jan. 8, 1757 (P. L. B., v), " I had never laid any of these laws before the crown, and did not choose to do it myself, as not being obliged so to do." Again, November 28, 1770, (P. L. B., x) the proprietors wrote to Gov. John Penn. "The Lords of Trade made objection to our entitling ourselves ' true and absolute proprietaries' of the Lower Counties, in the laws passed in the province. We think you may as well avoid giving them that offense, as we send them no laws passed in the Lower Counties."
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by the approbation of the governor what the worst of our enemies had always sought to separate, and ungrateful to me that made them that grant only in case the government should be violently taken away from me, but never designing to rend the territories from the province."I Again he wrote to James Logan, " Those sturdies will never leave off till they catch a Tartar, and must come hither to be lost in the crowd of taller folks, to be humbled and made more pliable ; for what with the distance and the scarcity of mankind there, they opine too much, and I am under great dissatisfaction at what thou wrotest about their aversion to the union. I know this aversion to a union, now that the queen has ordered the means of it, will set an ill complexion upon them towards her at my cost at last, and recom- mend their enemies. Nay, were I better posted in the Lower Counties, I would find a way to dissolve the charter so far, but in no real privileges. * This business of the dis- union sticks with me still. I fear it will lead to a worse thing, unless we adjust the matter where it is. What will the queen think, after all my memorials to preserve the government with- out a seam, to find, and that on our side, it is torn in two. Oh! the weakness of men! Use the utmost of thy address with the wise, the honest, and the weak, to accommodate things, and don't let them make use of a charter against me now that I keep the government at unspeakable charge, and at evidence that I only granted in the extent it has against our enemies, when they and I feared I should lose it."2
But if the proprietor hoped that harmony would eventually be restored, his hopes were shattered by an event that happened in 1707. It seems that Gov. Evans and the assembly of the Lower Counties had passed an act for the purpose of main- taining a fort at Newcastle. To this end an imposition was laid upon all vessels sailing to and from Philadelphia. Because the master of a certain sloop refused to pay the tax, the vessel was 1 Penn and Logan Corresp., ii, pp. 66. 2 Ibid., i, pp. 305-308.
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fired upon. This conduct of the Lower Counties was severely censured by the assembly of the province, and it called the at- tention of the governor to the words of the royal charter, which gave the right of undisturbed passage through the waterways. After offering a somewhat lame excuse, to the effect that he had not thought the act would give offense to the province, and that, if the matter had been properly repre- sented to him in the first place, he would never have consented to it, he agreed to suspend the further execution of the act.I That in passing this act, however, the governor was prompted by a spirit of petty spite against the province, seems to be proved by the constant warfare he maintained with its as- sembly,2 as contrasted with the harmony that existed between him and the assembly of the Lower Counties. In fact, when it was learned that he was soon to be superseded by Charles Gookin as governor, expectation ran high that he would join with several prominent men of that section in an application to the queen to have the Lower Counties erected into a separate government. Their intention also was to secure for him the first commission as governor. But Evans refused to entertain the proposition, and in October, 1708, called upon the as- sembly of the Lower Counties to enact certain laws. In reply it desired him to lay before it the powers of government with which he was invested over the Lower Counties. Then the governor referred to the fact that, under the authority of his commission from the proprietor, and of its approbation by the queen, he had, with the other branch of the legislature, passed a number of laws. As his powers up to that time had re- mained unquestioned, he did not think it necessary to make any vindication whatsoever of them. His reply caused a di- vision in the house. Eight out of the seventeen members as- serted that no just occasion to question the governor's author- ity had been given. The raising of such objections, they thought, originated in a desire to destroy their present form
1 Col. Rec., ii, pp. 379-383. 2 Ibid., pp. 141-423 passim.
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of government, and to introduce a change to which they were strongly opposed. Hence they refused to sit any longer in the assembly.I
When Gov. Gookin assumed control, a few months later,. the faction that wished the crown to take the government: demanded that he should show his right to exercise juris- diction over the Lower Counties. At the same time he was: requested to join with it in petitioning the queen for a. special commission to himself as governor. It urged that: Penn had always declined to prove his legal right to the gov- ernment, and hinted that the validity of laws passed in a sec- tion of country not included within the bounds of the royal charter might be called in question. But as Gookin had been expressly instructed by the proprietor to bring about a union with the province, he of course did not comply with the wishes of the faction.2 In anger at his refusal the malcontents. sent an address to the Board of Trade, complaining of the hardships they had suffered under Penn's administration.3: Learning of this, in reply to a letter of inquiry from Logan, Penn wrote, "The present deputy governor has the same powers the other had, and I will make those unruly fellows tamer to me and my interest in a while, I hope. Let them be ruled without vexatious assemblies, and follow the laws of England, for that is the least danger to him, and the best bridle to the shameless and base crew."4 But the suggestion does not seem to have been followed, and the financial troubles of the proprietor prevented him from paying further serious at- tention to the affairs of the Lower Counties.
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