USA > Pennsylvania > History of proprietary government in Pennsylvania > Part 34
Note: The text from this book was generated using artificial intelligence so there may be some errors. The full pages can be found on Archive.org (link on the Part 1 page).
Part 1 | Part 2 | Part 3 | Part 4 | Part 5 | Part 6 | Part 7 | Part 8 | Part 9 | Part 10 | Part 11 | Part 12 | Part 13 | Part 14 | Part 15 | Part 16 | Part 17 | Part 18 | Part 19 | Part 20 | Part 21 | Part 22 | Part 23 | Part 24 | Part 25 | Part 26 | Part 27 | Part 28 | Part 29 | Part 30 | Part 31 | Part 32 | Part 33 | Part 34 | Part 35 | Part 36 | Part 37 | Part 38 | Part 39 | Part 40 | Part 41 | Part 42 | Part 43 | Part 44 | Part 45 | Part 46 | Part 47 | Part 48 | Part 49 | Part 50 | Part 51
Resuming again the discussion of the establishment of the courts of common law, at a meeting of the council held May 12, 1722, it was stated "that the constitution of the several
1 Shippen Papers, p. I.
2 Pa. Arch., 2d series, vii, p, 166; Penn MSS., Corresp. of the Penn Family, T. P. to John Penn, Sept. 10, 1736; P. L. B., i, John and Richard Penn to T. P., Aug. 10 and 26, 1736; Feb. 17, 1737.
3 P. L. B., ii, T. P. to Thomas, May 3, 1743.
4 Ibid., iii, T. P. to Hamilton, Sept. 14, 1750. 5 Ibid.
6 Ibid., v, T. P. to Denny, Oct. 9, 1756; to John Penn, May 9, 1769.
1
396
PROPRIETARY GOVERNMENT
[396
courts of judicature within this province would in all respects be more regularly and effectually established by [law or] ordi- nance, as they are done in some of our neighboring governments, than by any particular commissions."I Thereupon Gov. Keith sent to the assembly a message to this effect. A bill entitled, " An act for establishing courts of judicature in this province" was immediately prepared by that body, and on the 22nd of the month was signed by the governor. With the exception of the fact that the procedure was not so minutely specified, and was made more analogous to that of the courts in Eng- land, the law was substantially the same as its predecessors of 1715.2 This was the first and only law relative to the estab- lishment of courts of judicature that was not repealed by the crown. It seems, however, that in November, 1726, complaint had been made to the assembly that, in civil cases, under this law the supreme court had no right to issue any original writ or process. After prolonged consideration the assembly decided that this power should be expressly denied the supreme court. A law embodying this decision, and passed in August, 1727,3 was repealed by the crown in 1731. In a message from Gov. Gordon to the assem- bly, February 3, 1731, among other matters, he urged the appointment of an agent to look after the interests of the pro- vince at London. "I am led to press this the more closely," said he, "from some late endeavors that have been used to obtain a repeal of the law for establishing courts of judicature, passed since my accession to this government, * * * * and, as the matter is still depending before the Lords of Trade, it will become us to take all suitable measures to prevent a design of this nature."4 The governor re- ceived notice of the repeal, November II, 1731. He imme-
1 Col. Rec., iii, p. 171.
2 Charter and Laws of Pa., p. 387. 3 Ibid., p. 401.
4 Votes, iii, p. 150. Col. Rec., iii, p. 397. Penn MSS., Offic. Corresp. i., Gov. Gordon to John Penn, Sept. 23, 1727.
397
IN PENNSYLVANIA
3977
diately called a special session of the assembly, which met on the 23d of the same month. In his opening address he called attention to the repeal, with which he was much displeased. He declared that it was obtained by the endeavors of some persons on the pretense that the law was prejudicial to the interests of the king," and that he was in possession of letters to that effect. On the following day the assembly stated, " We are extremely concerned that their lordships of the Board of Trade were so ill informed of the intentions of the legislature of Pennsylvania in passing the act of assembly for establishing courts of judicature; or that it should be understood as pro- ceeding from a want of duty to the king, or regard to the persons employed under him. The governor is sensible the legislature had no other view in the making that act than to give an opportunity to all persons who may have to do with courts of justice here to apply to a superior judicature for re- dress by way of appeal or writ of error, if they conceived them- selves aggrieved by the sentence of the court before whom ? judgment was given, which by our constitution no person can have but by appeal to Great Britain, if the supreme court can hold plea of causes originally commenced there. But upon reading the papers, which the governor has been pleased to communicate to us, touching the repeal of the said law, and the methods that have been taken to obtain it, we cannot help
1 The probabilities are very strong that the repeal was accomplished through the agency of John Moore, collector of the king's customs, who had felt himself ag- grieved by his failure to win a certain case. To a meeting of the council, August 18, 1727, at which amendments to the bill of that year were under discussion, he had sent a communication, " requesting to have a clause inserted, which provided that all actions, * * * informations and prosecutions whatsoever, wherein his majesty, his heirs, or successors, is or shall be in any way interested or concerned, shall and may be commenced, sued or prosecuted originally in the supreme court" of the province. This was referred to the assembly, but no notice was taken of it. The failure to have this clause incorporated into the act, in connection with the statements in the reply of the assembly to the governor's speech, furnish sufficient indication at least of the causes of the repeal, if not of the mover of it. Charter and Laws of Pa., P. 309; Col. Rec., iii, pp. 278-9.
398
PROPRIETARY GOVERNMENT
[398
saying that so much of the representation made to the king as insinuates the partiality of our inferior courts of justice, or that the said act was gained by the undue influence of particular persons on the governor and then general assembly of this province, is false and scandalous, and the author studied rather to recommend himself by such suggestions than to do his majesty any real service."I By the repeal of this act the province was not left as upon former occasions without a judi- cial establishment. On November 27, 1731, a bill for reviving the act of 1722 was introduced into the assembly, and became a law the following day.2
We have noticed that, in its contest with Gov. Evans in 1706, the assembly had endeavored to secure the appointment of judges the length of whose tenure should be determined by their good behavior, and not by the pleasure of the proprietor or governor. But the refusal of Evans and of his successors in office, did not discourage the assembly. Indeed, about * 1743 the desire for popular control over the appointment of judges had grown so strong, that the plea for their election by the people was urged. The opinion of the proprietors on this point may be gathered from the following: "We think it un- wise," wrote Thomas Penn to Gov. Thomas, August 21, 1743,3 "to make any statement in council concerning judges holding by good behavior. You should be careful to preserve our rights in this respect. Isn't there as much likelihood for par- tiality where judges are elected? We shall never consent to alter the commissions of the judges, unless the whole court is put on the footing it is in England, by depriving the judges of seats in the assembly, and changing the method of choosing sheriffs."4 Again, in a letter to Mr. Peters, February 24, 1751,5
1 Votes, iii, pp. 168-169. 2 Charter and Laws of Pa., p. 404. 3 P. L. B., ii. 4 By an act passed in 1706, the offices of sheriff and coroner were made elective,. and being considered as officers of the crown, they were commissioned and required. to enter bond in the name of the crown. Bradford, Laws of Pa.
5 P. L. B., iii.
399]
IN PENNSYLVANIA
399
Thomas Penn said, "When the assembly will settle a fund to pay proper salaries to judges, we shall be ready to give com- missions to them in the form observed in England," i. e., dur- ing good behavior. Eight years later, taking advantage of the venality of Gov. Denny, the assembly secured the enact- ment of a law to supplement the act of 1722. It provided that the court of common pleas in each county should consist of five judges. They and the judges of the supreme court should serve under commissions issued during good behavior, and were subject to removal from office upon an address from the assembly. No justice of the court of quarter sessions was allowed to be a judge of the common pleas. The salaries of the judges of the supreme court were also fixed.1 But the law was repealed by the crown, September 2, 1760, because it affected the royal prerogative in a point of great importance. It was believed that tenure during good behavior would not at the same time promote the interests of the colonies and of Great Britain.2 The Board of Trade in its report on this act referred to the absolute power given the proprietors to establish courts and to appoint judges. It declared that they should not be limited in the exercise of these privileges, and that the action of the Pennsylvania assembly could not, without giving cause of offence to the other colonies, be based on the analogy of the method observed in England.3 Gov. Denny, however, attempted to appoint judges on such a tenure, but the keeper of the great seal refused to affix it to the commissions. Thereupon he issued them under the lesser seal, and in the name of the king. But this fact, together with the repeal of the law, the attorney- general decided was sufficient to vacate the commissions.4 The judges then refused to serve,5 and the commissions were
1 Charter and Laws of Pa., p. 405.
2 Chalmers, Opinions of Eminent Lawyers, ii, p. 105.
3 Col. Rec., viii, p. 544.
4 P. L. B., vi, T. P. to Peters, Jan. 12, 1760; to Hamilton, June 13, 1761.
5 Ibid., T. P. to Hamilton, Oct. 9, 1761.
400
PROPRIETARY GOVERNMENT [400
issued in the name of the proprietors. A few years later, the proprietors declared that, if the assembly would get from the crown a recommendation for the purpose, they would assent to a law to appoint judges during good behavior." But in the law passed in 1767, which again supplemented the act of 1722, no mention was made of the tenure of the judges.2 They con- tinued, therefore, to hold office during the pleasure of the pro- prietors.
1 Ibid., viii, T. P. to Allen, July 13, 1765.
2 Charter and Laws of Pa., p. 407.
CHAPTER IX.
THE BILLS OF CREDIT.
PENNSYLVANIA, like the other colonies, experienced the ill effects of a scarcity of money. The natural tendency was for coin to flow out of the country. This was due to the un- favorable balance of trade with England, and must continue until the balance of trade underwent a change favorable to the colonies ;" or until they issued their own currency. Owing to the stringency thus caused, an impetus was given to the employment of various substitutes for money. Hence the earliest current pay in the province was flax, hemp, linen and woolen cloth, or other products of the country. Indeed, in 1683 and 1693, it was enacted that wheat and other grains, hemp, flax, beef, pork and tobacco should be current pay at the market price.2 But the supply of coin still remained scanty. This was due in part to the necessity of paying coin for cattle imported at Philadelphia from East Jersey. Though measures were taken to encourage the growth of cattle in the province,3
1 In 1749 the proprietors expressed the opinion that the balance of trade could not be changed in favor of the colonies, and thereby more gold and silver put in circulation, except by discouraging the use of English manufactures and European trifles, and encouraging home manufactures. Penn MSS., P. L. B., ii, T. P. to Hamilton, June 6, 1749.
2 Charter and Laws of Pa., pp. 140, 162, 229.
3 The following suggestions were made to the assembly by the council, August I, 1701 ; but, on account of the pressure of other business, were not considered by that body : that every person who had forty acres of land under cultivation should keep at least ten sheep; that no person should cause to be killed more than one- half of his growing neat cattle ; that no neat cattle should be sold to the inhabitants of Philadelphia, from June to September yearly; that certain precautions should
401]
40I
402
PROPRIETARY GOVERNMENT
[402
little permanent relief from the scarcity of coin could be secured. Again, the financial stringency caused the rate of exchange of money current in Pennsylvania, notably of foreign coins, to be occasionally raised even above that fixed in neighboring colonies. In 1683 it was enacted that the rate of sterling should be advanced 25 per cent., while New Eng- land money was rated at par. Pieces of eight were to pass for 6 shillings, Peru pieces for 5sh. 8d., "Caroluses" and " Jaco- buses," for 30 and 32 shillings respectively, Spanish pistoles for 20 shillings, ducats at IIsh. 6d., and lesser coin propor- tionately. All contracts at other rates were of course to be void." Ten years later a similar law was enacted. Special reference was paid, however, to the weight of the coin, and as to whether or not it had been clipped. In these cases corres- ponding deductions were made.2 The rate was again raised in 1698, and the punishment for clipping or otherwise im- pairing the value of the coin, was fixed at a fine of £100 and imprisonment for a year. In fact it was distinctly stated that the law was passed in order to encourage the "bringing in of money to promote trade, and make payments more easy."3 But the proprietor and others in England feared that their interests as creditors would suffer. Particular mention was made of the danger that the quit-rents would be reduced. The council, however, replied that the object of the measure was simply to keep money in the province, and that it should not be prejudicial to the payment of the quit rents.4
In 1700, at a conference held at New York with Lord Bello- mont and Gov. Nicholson of Virginia, Penn proposed the adoption of some method to regulate coinage in the colonies.5 But such a scheme was beset with too many difficulties to
be taken concerning the killing of cattle and the location of slaughter-houses ; and that, for the encouragement of the trade with the West Indies, the duties on rum should be reduced. Col. Rec., ii, p. 27.
1 Charter and Laws of Pa., pp. 145-6. 2 Ibid., p. 238. 3 Ibid., p. 275.
4 Col. Rec., i, p. 558. 5 N. Y. Col. Doc., iv, p. 757.
403
IN PENNSYLVANIA
403]
meet with any response. In the same year, also, another act to regulate the rates of coins was passed by the legislature of Pennsylvania, but was repealed by the queen in council in 1703.4
The evils caused by tampering with the value of the coin were such as to necessitate some action by the home govern- ment. Hence, June 18, 1704, a proclamation was issued by Queen Anne, fixing the rates of foreign coins in the colonies. In 1708 this was confirmed by an act of parliament, 6 Anne, chap. 30. Thereupon the assembly, October 14, 1708, passed an "act for ascertaining the rates of money for payments of debts, and preventing exactions in contracts and bargains made before May I, 1709," the time at which the statute was to go into effect. It appeared that the silver coins, known as pieces of eight, which formerly passed for eight shillings, had by the proclamation and act of parliament been ordered to pass for six shillings, in spite of the fact that they might possess the same intrinsic value as before the passage of the law. The assembly declared that the real worth of a coin depended on the quan- tity of silver in it, and not on arbitrary changes in its current value. It moreover asserted that some persons had taken advantage of the statute to force their debtors, after May I, 1709, to discharge their debts according to the rates men- tioned in the proclamation. By this act they would receive a third more silver than the contract implied at the time it was made. Certain individuals, also, after the arrival of the news concerning the passage of the statute, had lent money at current rates, but had taken obligations for its payment at the rates prescribed by the proclamation-a fact which would be injurious and oppressive. It was therefore enacted that, if any person after May 1, 1709, in payment of money lent,
4 Bradford, Laws of Pa. An act of similar tenor, passed in January, 1705-6, was repealed by the crown in 1709. The reason for the repeal, as given by the attorney-general, was that, since parliament, by the statute 6 Anne, chap. 30, had settled the "rates of foreign coins in her majesty's plantations in America," there was "no need of such an act in Pennsylvania." Pa. Arch., Ist series, i, p. 156.
404
PROPRIETARY GOVERNMENT [404
for goods sold, for perquisites, fees, salaries, or other debts then due, or for contracts made before May 1, 1709, should take any of the silver coins mentioned in the proclamation, except Peru pieces-which were to be accepted at their cur- rent value-at a rate other than 9sh. Id: per oz., Troy, and for any sum under a piece of eight at a rate other than 5 12d. per pwt., he should forfeit to the party aggrieved £10 and costs of suit. The debtor should be discharged of the whole of his debt in excess of what it amounted to at the rates just men- tioned. Furthermore, all "salaries, fees, workmen's wages, and prices of commodities and manufactures" were to "abate in proportion to the fall in the denomination of money," which had been caused by the statute, i. e., to three-fourths of what had been previously demanded. It was provided, however, that no one should be compelled to receive money at the present rating of the currency for the discharge of rents re- served, or of other contracts for which the consideration had been agreed to be paid in sterling, or at the rates fixed by the statute. Lastly, sets of weights exactly proportioned to the rates imposed by parliament should be prepared and sold by certain persons in Philadelphia, and the prices thereof were fixed .* This also was repealed by the queen in council, Feb- ruary 20, 1713, because it was repugnant to the statute.2
As the needs of the province multiplied, the complaints about the dearth of money correspondingly increased. In 1718, owing to the fact that New York and Maryland had not complied with the statute, and had laid duties upon the pro- ducts from Pennsylvania, as well as upon British commodities exported from it, and thereby had drawn away a considerable amount of money, a duty of 10 per cent. was imposed on products imported from those colonies into Pennsylvania. This was to continue so long as their tax remained in force.3 Between 1717 and 1722, moreover, about fifteen acts for raising
1 Bradford, Laws of Pa .; cf., Charter and Laws of Pa., p. 287.
2 Pa. Arch., Ist series, i, p. 157.
3 Bradford, Laws of Pa.
405
IN PENNSYLVANIA
405]
money by taxation were passed. But gold and silver being acquired chiefly from trade with the West Indies, were subject to contingencies, since the amount of them in the province varied with the demand for Pennsylvania commodities. Their value in current pay was thus very uncertain. About 1722, also, trade and production declined, and specie, for want of other returns, was generally shipped to England. The in- habitants were in considerable distress. Debts could not be paid. Rents of houses fell; and the value of land and im- provements sank.2 Various remedies were then suggested with the view of economizing the use of specie, viz., that the hiring out of slaves, who worked at reduced wages and thus prevented the employment of freemen, should be stopped; that the manufacture of beer and distilled spirits should be encour- aged; that products of the country should be made a legal tender ; that the rate of interest should be reduced from 8 per cent. to 6 per cent .; 3 that executions for debt should be stayed; that, notwithstanding the statute of 1708, the value of sterling and of dollars should be raised 25 per cent .; and finally, that the exportation of money should be prohibited.4
The proposal of paper currency as a panacea occasioned considerable debate.5 The majority favored it; but many of
. 1 The following table is given in Hazard, Register of Pa., i, p. 6:
1720, Exports= £7928 14 sh. IO d .; Imports=£24531 15 sh. 2d. 1721, = £8037 0 " H =£21548 4 " II " 1722, = £6882 I “ 6 " =£26397 9 “ 6 " 1723, = £8332 9 “ =£15992 19 “ 4 " 1724, = = £4057 H =£30324 16 " 1725, 66 =£11981 3 " =£42209 14 " 2 " 2 % 1726, ¥ 3 "
= ₺5960 2 . 5 " =£37634 17 “ 8 " 1 Hard money was so scarce that many were obliged to cut gold coins into six- pences for marketing. " Case of the Inhabitants of Pennsylvania," 1723.
3 This suggestion was adopted in an act of assembly passed March 2, 1723. Bradford, Laws of Pa.
4 Col. Rec., iii, p. 173; Votes, ii, pp. 313, 314, 335.
5 Proud, History of Pa., ii, pp. 152-170.
406
PROPRIETARY GOVERNMENT
[406
the more solid men of the community, among whom were James Logan and Isaac Norris, were opposed, chiefly for fear of depreciation. In regard to the paper, they held substantially the views of the later Bullionists." They argued that, when parliament issued bills of credit, called exchequer bills or notes, it kept them equal to silver by giving the Bank of England2 large sums of money to receive such bills as its own, and to exchange them for ready cash on demand. Hence, if bills of credit were issued in Pennsylvania, since there were no banks to pay ready money for them on demand, they should be made to continue of the same value as ready money, according to the rates at which they were first issued.3 If such bills were
1 The work from which they appear to have derived their objections is Sir Henry Pollexfen's " Discourse of Trade, Coin, and Paper Credit," London, 1697, a copy of which is in the Loganian Library at Philadelphia. He states that the " passing of paper in payments was not much in practice till after 1660, and had 'its origin in the profuseness of the court taking up great sums at any rate from the goldsmiths, and they from the people, and served instead of coin for supply- ing the wants of those that for goods or otherwise had taken tallies from the exchequer, which at extraordinary rates were often sold to the goldsmiths for their notes, which, when given out for that, or for other occasions, did circulate for some time, and excused the use of so much coin, which increased trade ; but it ended in shutting up the exchequer ; and until it be decided whether the great debt yet owing to the bankers shall be paid by the government, or lost by the people that trusted them, no judgment can be made as to who had the profits gotten by that paper credit," pp. 68-69. A
2 " When any tax is granted by parliament, tallies, exchequer notes or bills issued out upon the same for the supplying of the government with ready money till the duties be paid, may have as good credit as the bank bills at Venice or Amsterdam, because grounded on the greatest authority and public faith." Ibid., p. 68.
3 " Coin is not only the easiest and safest security that can be given, but the quickest for dispatch, and of the most satisfaction in buying and selling," p. 17. " What paper credit may be found necessary should be carefully settled by authority on good funds, with restrictions to prevent the extending of such credits beyond the funds. For as it is impossible for persons to run in debt beyond their estates, but will run the risk of losing their credit, so with nations or banks. If paper credit exceed the funds, and the prospect of having coin upon occasion to answer such credit, it may be found a loose way of dealing, subject to great
407
IN PENNSYLVANIA
407]
given to an applicant on easier terms than gold and silver would be, if paid out of the treasury, by so much would they depreciate. The theory that they might be issued and loaned on small proportionate deposits, or that for a term of years little more than the interest need be paid on them, they felt to be partial and destructive to public credit, because the consid- eration given was unequal to the sum received. Paper money, they argued, must be lent to all, or only to some. If lent to all it would be impracticable to issue enough to satisfy the demand, while if lent only to a few, favoritism would be practiced. They showed that the more the currency depreciated, the greater became the borrower's advantage in making his annual payments. Lastly, the credit of such a currency they thought should be supported by the issue for short periods of only small sums, and those for the immediate purposes of circulation.1
On the other hand, the defenders of paper money said that their intention was to keep the paper of the same value as specie, and that, if the bills could not be loaned for a less pledge or security than gold or silver, easy terms of paying them would not diminish their value. The stamp of the gov- ernment was sufficient, they declared, to render their value stable, and would keep them at par with gold and silver of the same denominations. In other words, the fact that they bore on their face the official stamp, and that they had the whole
dangers and inconveniences; for most likely such credit may fail when there may be most occasion for the use of it. No nation can be too cautious with whom they trust their riches, nor what they make or allow to pass for treasure, though but artificial," Ibid., p. 67.
Need help finding more records? Try our genealogical records directory which has more than 1 million sources to help you more easily locate the available records.