USA > Pennsylvania > History of proprietary government in Pennsylvania > Part 42
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
1 Votes, iv, pp. 368-374; Penn MSS., Offic. Corresp., viii, Denny to Holder - nesse, July 12, 1757.
49I
IN PENNSYLVANIA
491]
" That the indubitable right of the assembly to judge of the mode, measure and time of granting supplies is infringed by instructions that enjoin the deputy to refuse his assent to any bill for raising money, unless certain modes, measures and times, in such instructions directed, make a part of the bill, whereby the assembly in time of war are reduced to the neces- sity of either losing the country to the enemy or giving up the liberties of the people and receiving law from the proprietary ; and if they should do the latter, in the present case, it would not prevent the former, the restricting instructions being such as that, if complied with, it is impossible to raise a sum suffi- cient to defend the country.
" That the proprietaries have enjoined their deputy by such instructions to refuse his assent to any law for raising money by a tax, though ever so necessary for the defense of the country, unless the greatest part of their estate is exempted from such a tax. This to the assembly and people of Penn- sylvania appears both unjust and cruel.
" The proprietaries are now requested seriously to consider these complaints and redress the aggrievances complained of in the most speedy and effectual manner, that harmony may be restored between the several branches of the legislature, and the public service be hereafter readily and fully provided for."1
After some delay the proprietors succeeded in obtaining the opinion of the crown lawyers. It was to the effect that they were fully justified in issuing instructions, for the performance of which they might take whatever security they thought ad- visable. They were also assured that none of the instructions previously sent to the deputy governors had been illegal, and that their refusal to permit any examination of them was per- fectly proper. At the same time the crown lawyers suggested that the instructions concerning the passage of laws should be made more general in character, but all necessary precautions should be taken to guard the prerogatives of the crown, the
1 Votes, v, p. 20.
492
PROPRIETARY GOVERNMENT
[492
proprietary rights of government, and their own estates, in all which cases they might be " positive and particular."I There- upon the proprietors sent to the assembly a formal reply to the " Heads of Complaint." They told the assembly that a paper so short and so general in its statements could not properly express the importance of the matters in dispute, and tended to impair the "necessity and usefulness of a free inter- course" so desirable between proprietors and people. They wished, "in order to that harmony which they most sincerely desired, that the house * had sent some address, repre- sentation, or memorial pointing out clearly and distinctly any grievances" which it desired to be redressed, and that it " had given as full powers as the nature of such a case would admit to some person of candor to enter into the detail and full dis- cussion of those several matters which seem to be alluded to in the 'Heads of Complaint.' Had these things been done, * * many points might have been speedily adjusted to mutual satisfaction. * * * Persons not well inclined to governors or government," continued the proprietors, "may indeed desire that all matters whatsoever should be left to the discretion of a lieutenant on the spot, whom the house might supply or not just as he should yield up that discretion of his more or less to them; but as long as instructions are con- stantly given to every person entrusted with the government of any British colony (and bonds also required from every such person for observance of such instructions);
* * as long as
proprietaries are repeatedly commanded by the crown, upon the nomination of each successive lieutenant governor, to give instructions to such lieutenant; and as long as a lieuten- ant governor may by his misbehavior (if left entirely to his discretion) bring the proprietaries' estate and franchises into danger, so long the proprietaries must contend to give instruc- tions to and take bonds from their lieutenant governor." The proprietors thought further that, had the sums raised by taxa-
1 Penn MSS., Supp. Proc., T. P. to Peters, July 5 and Dec. 8, 1758.
493
IN PENNSYLVANIA
493]
tion been properly applied, the instructions would not have proved a hindrance. The reference in the paper to the taxa- tion of their estates they declared was unjust in its insinuation that "they would not contribute their proportion to the de- fense of the province." They acknowledged that they had instructed the governor "not to assent to any law by which their quit-rents should be taxed, because they thought it was not proper to submit the taxing their chief rents due to them as lords of the fee to the representatives of their tenants As to the legal rights of government," said the pro- prietors, "or the powers and prerogatives of the crown, we must support them as a duty which we owe to the crown, to the nation in general, and to the inhabitants of the province in particular We shall always be open to representa- tion and conviction," concluded the reply, "and we see no matters remaining but such as may, by the desirable methods of free conferences, * * be well settled to mutual satisfac- tion on both sides, and to the welfare and happiness of the province which we have most affectionately at heart."" The assembly, however, did not authorize any persons to act as the proprietors had suggested, and, despairing of carrying its point in England, resorted to the corruption of Gov. Denny.
The manner in which the opposition of the assembly to in- structions culminated will be described in chapter xiii. It only remains to be said here, that those which were issued to Gov. John Penn in 1763, 1773, and 1775,2 and to Gov. Richard
1 Votes, v, pp. 19-21.
2 In the instructions issued to John Penn, Aug. 5, 1775, it was stated that the observance of them would enable him to discharge the trust reposed in him for his majesty's service. He was to preserve order and morality, and to further the general prosperity of the province. He was to allow toleration to all Protestants. He was not to permit Catholics to settle or hold office. He was to execute the laws of trade. He was to continue the present council, and, with the consent of two-thirds, fill all vacancies therein. He was to ask the advice of the council in all acts of government, especially with reference to calling, proroguing, or dissolving the assembly. He was to continue the present government officials in their stations so long as he might think fit, except where their appointment and term of office were
494
PROPRIETARY GOVERNMENT
[494
Penn in 1771, were in form even more complete than their predecessors ; but, after 1764, very little real force was attached to this essential feature of proprietary administration.
prescribed by acts of assembly. He was not to consent to any bill for the emis- sion of paper money, unless the " whole of the interest accruing should be clearly disposed of, and not at the discretion of the assembly." He was to keep the amount of currency as low as possible. It was not to be made a legal tender in the payment of quit-rents or other sterling debts. He was to build a fort, and establish a militia. In cases of emergency he was to follow the directions laid down in the royal charter concerning the mustering of troops. The religious opin- ions of the Quakers should be respected, but they must furnish an equivalent for their military service. The governor, moreover, was to continue the maintenance of honorable relations with the Indians, and to keep individuals from interfering with the management of treaties. All the counties in the province should be given equal representation in the assembly, according to the " charter of privileges and solemn compact of 1701." The governor, again, was not to pass any bill which might take away or reduce the right to receive fees, fines and forfeitures due to government officials, unless the assembly offered a permanent compensation there- for. He was to make at his discretion, unless otherwise directed, all needful amendments to bills, as his predecessors had done. He was to send to England the provincial laws soon after they were passed, as well as the printed proceedings of the assembly. He was not to permit the lessening of the proprietary power of appointment, or that of establishing ferries, though the assembly might regulate the rates of the latter, in case it would declare that the right to establish them belonged as a royalty exclusively to the proprietors. He was not to pass any act for the establishment of a court of chancery, since that was a right already vested by charter in the proprietors. But the assembly might regulate the proce- dure of the court, which should consist of the proprietors, or governor, and mem- bers of the council, though not in cases where their interests were involved. The governor should never ask aid from the assembly and never allow that body " to do anything by law which the proprietaries might do by charter." He was not to pass any act of assembly to erect or divide counties, unless the county seat was located upon land belonging to the proprietors, nor was he to grant charters of incor- poration for markets or fairs, without special order from them. He should pass no law for the levying of duties, imposts, or customs, unless such a course of action was absolutely necessary. Finally, he was ordered to support the rights and pre- rogatives of the crown, as entrusted to the proprietors by the royal charter, and, if possible, to induce the assembly to grant to ex-governors the arrears of their sala- ries. MS. in the Pa. Hist. Soc. Library.
.
CHAPTER XII
RELATIONS WITH THE HOME GOVERNMENT
IN this chapter will be discussed the relations between Penn- sylvania and the home government, as arising from the nature of the dependence of the colony upon the mother country. More especially the jealousy felt by the English government toward Pennsylvania, and its consequent efforts to extend the jurisdiction of the crown directly over that province, will be considered. Since Pennsylvania further was a part of the British colonial empire, the question of its defense is closely connected with this subject. But as these matters might more properly be treated in a history of English imperial adminis- tration, their discussion here will be somewhat brief.
That the Quakers were conscientiously opposed to the bear- ing of arms, or to the exercise of military force to repel invas- ion or to quell insurrection, is a well known fact. Their policy of settling all difficulties by pacific measures has by some been criticised as tending to subvert the powers of government, for, as human nature with its vices and passions is generally con- stituted, compulsion is absolutely imperative for the security of a state. The exercise of such compulsion necessitates some form of military organization. But the commonly accepted opinion of the Quakers seems to have been that the home government would afford them all needful protection against enemies external and internal. Still, most of them declared that they would not oppose the formation of military organi- zations by those whose conscience permitted them so to do ; and some, especially toward the middle of the eighteenth cen- tury, were liberal enough to advocate openly the rightfulness
495]
495
496
PROPRIETARY GOVERNMENT
[496
of defensive war, provided they were not required personally to assist in it.2 But as for many years the Quakers and their sympathizers formed the bulk of the more wealthy and influ- ential among the population of Pennsylvania, their passive attitude greatly discouraged the establishment of a militia.
They asserted also that they were willing to render to Cæsar his due, but if any contributions they might make were known to be intended for military purposes, an accusation of inconsistency in principle might be brought forward. On the other hand, if they remained strictly consistent and hence gave nothing to defend the province against its enemies, thereby com- pelling those who differed from them in religious creed to bear all the burdens, they might be justly charged with selfishness. When therefore the crown sent to the assembly orders to grant military supplies, the Quaker majority in that body was unwilling to offend either the crown by a direct refusal, or the body of the Quakers by a compliance contrary to their avowed principles. "They used," said Franklin,3 " a variety of evasions to avoid complying, and modes of disguising the compliance when it became unavoidable. The common mode at last was to grant money under the phrase of its being for the king's use, and never to inquire how it was applied." In fact had the Quaker system of government, lacking as it was in the means of securing by the use of oaths satisfactory judicial information and by force of arms adequate military protection, been carried to its legitimate conclusion, great con- fusion must have resulted. "If friends," said James Logan,4 " after such a profession of denying the world, living out of it and acting in opposition to its depraved ways, * cannot be satisfied, but must involve themselves in the affairs of gov-
1 James Logan was the foremost of these liberal Quakers. His views on the subject of defensive warfare may be seen at length in Pa. Mag. Hist., vi, pp. 403- 411.
2 Franklin, Works, i, p. 151. 3 Ibid., pp. 153-4.
4 Penn and Logan Corresp., ii, pp. 351-2.
497
IN PENNSYLVANIA
497]
ernment under another power and administration, which ad- ' ministration in many of its necessary points is altogether in- consistent with this profession, * * * I cannot see why it should not be accounted singularly just in Providence to deal to their portion crosses, vexation, and disappointments to convince them of their mistakes and inconsistency."
In this connection it must be remembered that by the royal charter William Penn and his successors were invested with the powers of a captain general. Although there is no evidence that the Quaker proprietor was at all pleased with the insertion of this clause in the charter, still he was astute enough to see that it was for his interest to accept one power which was distasteful if thereby he could obtain so much beside that was to his advantage. It is not to be supposed that he relished other clauses in the charter. The transmission of the acts of assembly, the maintaining of an agent at London, and the stipulation that, at the request of any body of twenty inhabitants, a minister of the Church of England should be sent to the province, might involve danger to the Quaker system of government in spite of its tolerant spirit. Pennsyl- vania, furthermore, was a British colony. As such it could not presume to found a system of government which differed widely from that of its neighbors. A government according to Quaker principles then would not agree with the general plan of colonial administration. It had to be modified to suit the exigencies of the time as they became apparent.
In one of the preceding chapters it has been noticed how intimate Penn was with the Duke of York, later James II. To this intimacy may be attributed the fact that, from the stringent measures adopted by the king to extend his policy of absolutism to the colonies, Pennsylvania was exempted. But as soon as it was observed in England that the proprietary provinces were likely to become of considerable importance, the ministers saw how advantageous to the crown would be the purchase of the governmental authority of the proprietors
498
PROPRIETARY GOVERNMENT
[498
before they should become too powerful. If this could not be done, they thought the crown ought to assume direct jurisdic- tion over the proprietary provinces. They based this opinion on the dictum that the crown, which had a right to govern all its subjects, might deprive of their powers of government pro- prietors or corporations who had abused them. In other words, to quote the statement of two prominent crown lawyers," " upon an extraordinary exigency happening through the de- fault or neglect of a proprietor, or of those appointed by him, or their inability to protect or defend the province under their government, and the inhabitants thereof in times of war, or imminent danger," the crown might "constitute a governor of such province or colony as well for the civil as military part of government, * * with this addition only, that, as to the civil government, such governor is not to alter any of the rules of propriety, or methods of proceedings in civil causes estab- lished pursuant to the charters granted." Since the crown had the right of judging when an abuse of governmental powers had occurred, this conception of the case gave it a wide range of authority.2
As early as May 1689, the Privy Council told the king that the proprietary governments ought to be made more depend- ent on the crown, and for this reason were " worthy the con- sideration of the parliament."3 But at the time no steps were taken to accomplish this result. A few months later the Council was informed by a judge in the Lower Counties that for desiring William and Mary to be proclaimed king and queen he had been removed from office.4 This gave rise in England to the opinion that the new king and queen had not been officially recognized in Pennsylvania. It is true that for
1 Chalmers, Opinions of Eminent Lawyers, i, p. 31.
2 See the more conservative opinion of Chief Justice Holt, who held that before the crown assumed control a careful legal investigation of the case should be made. Ibid., p. 30.
3 Mem. Pa. Hist. Soc., iv, pt. ii, p. 246.
+ Ibid.
499
IN PENNSYLVANIA
499]
some time doubt existed in the province as to the wisdom of proclaiming their accession. But upon receipt of orders from the king to provide for the defense of the province against the French, and to send war vessels to the West Indies,1 Gov. Blackwell and the council decided to issue the proclamation.2 In reply to the commands of the crown, the governor sug- gested the establishment of a militia. The Quaker members of the council naturally objected to the proposition, and gave Blackwell to understand that the king of England knew " the judgment of Quakers in this case before Governor Penn had his patent." For this reason, in spite of the arguments of the governor, they declared that, before they would give their consent to anything so contrary to their principles, they would suffer as they had done in England. Blackwell then inquired whether he should use his own discretion in the matter. To this inquiry, however, no definite answer was returned, and the governor declared that he would give an account of the affair to the king and the proprietor.3
Whether the threat of Blackwell was carried into effect is not known, but we have seen that, in October 1692, the king placed the government of Pennsylvania in the hands of Gov. Fletcher of New York. In May, 1693, Fletcher met the as- sembly of Pennsylvania, and laid before it a letter from the queen calling for assistance in fortifying the frontier of New York. At first his efforts to secure compliance with the letter met with considerable opposition,4 but a threat to dissolve the assembly and to annex the province to New York brought that body to terms, and an act was passed levying a land tax nominally to support government, but really to give the assist- ance required.5 A year later Fletcher again summoned the assembly. Being now well acquainted with the religious pro- clivities of the majority of its members, he pictured to it the piti-
1 Col. Rec., i, p. 302. 2 Ibid., pp. 303-5.
3 Ibid., pp. 306-311.
4 N. Y. Col. Doc., iv, pp. 52-53.
5 Col. Rec., 1, pp. 370-385 ; Charter and Laws of Pa., p. 221.
500
PROPRIETARY GOVERNMENT
[500
able condition of the inhabitants in northern New York, and said that he hoped it would not refuse to "feed the hungry and clothe the naked." Failing, however, to convince it that, by ac- ceding to his wishes it would be performing an act of charity, he took advantage of the neglect of the assembly to mention the queen's letter in the act passed the previous year. Ignoring this act, he asked for a definite reply to the orders from the queen. In reply to this demand the assembly passed a bill similar to the act just mentioned, but with the proviso added, that a portion of the revenue should go to the payment of the salaries of two former deputy-governors, Lloyd and Markham, and that the remainder should be at the disposal of the gover- nor and council. But Fletcher refused to pass the bill in that form, and finding that he could not gain his purpose, dis- solved the assembly.1
On the 20th of the following August the powers of govern- ment were restored to the proprietor. Before a committee of the Privy Council, however, he promised that he would speedily return, take care of the government, and provide for its safety and security. He also declared that he would send to the legislature of the province all orders from the crown, · and that he believed they would be obeyed. He agreed to appoint William Markham governor, and if the orders from the crown were not obeyed, to submit to it the direction of military affairs. He further assented to the stipulation that all laws passed during the administration of Fletcher should be valid, and said that he would subscribe the de- claration of fidelity to the crown. Thereupon, as the legis- lature of Pennsylvania had passed a bill to raise money for the queen's service, the Privy Council expressed its willingness that Penn should once more assume the govern- ment. At the same time it told him that, at the request of the governor of New York, a quota of not more than eighty men should be sent to that province from Pennsylvania.2
1 Col. Rec., i, pp. 459-472.
2 N. Y. Col. Doc., iv, pp. 108-9.
501]
IN PENNSYLVANIA
50I
Orders to this effect were sent in August, 1695. Penn also in- structed Gov. Markham to see that the orders were obeyed. But in reply to the appeal of the governor the council asserted that the matter was too important to consider without the aid of the assembly. Markham called its attention to the fact that the proprietor had promised to protect the province. " Will you," said he, "be willing that, if an enemy should as- sault us, I should defend you by force of arms ?" To this some of the members of the council gave an affirmative answer, but the Quaker members said "that they must leave every one to their liberty, and that Gov. Penn's instructions therein must be followed, and it being his business, they had nothing to do with it."I From the assembly, however, Markham received as much satisfaction as he had from the council, and speedily dis- solved it.2 But in November, 1696, a series of concessions on his part led to another act to levy a tax for the assistance of New York.3
Leaving for a moment the discussion of military affairs, let us notice another subject of interest, namely, the attempts to enforce the laws of trade. Pennsylvania, it may be said, was in an unfortunate position geographically. It lay between Virginia and New England, and thus became a favorite resort for pirates, smugglers and other notorious characters from both these sections of country and elsewhere. To this fact the feeble character of the Quaker government essentially con- tributed. The "Colonial Records" contain many notices of free- booters on the coast. Indeed, in the first three volumes are more than forty such notices, exclusive of minor details. The pres- ence of this lawless element in the province, the internal discord he saw there, and his promise to take care of the government caused the proprietor, soon after the promulgation of the act of parliament, 7-8 William III., chap. 22, to order Markham to en- force vigorously the directions and instructions of the commis-
1 Col. Rec., i, pp. 486-488.
2 Ibid., pp. 493-495.
3 Ibid., pp. 506-509; Charter and Laws of Pa., p. 253.
502
PROPRIETARY GOVERNMENT
[502
sioners of customs.I But the reports of piracy and smuggling in Pennsylvania continued to pour in, and the king told Penn that, unless the laws of trade were better observed, the royal charter would be forfeited. Penn thereupon agreed to take a bond that the deputy governor should execute them more strictly.2 Accordingly, in September 1697, he informed Mark- ham and the council in plain terms that reports and accusations against the government of the province had reached England. It was charged that Pennsylvania had not only connived at smug- gling, but had countenanced and encouraged piracy. Hence the proprietor commanded the governor and council to issue a proclamation to suppress these practices. After some delib- eration the council denied that the province was guilty of the offenses charged, and declared that any failure to enforce the laws of trade had been due to the connivance or inefficiency of the king's revenue officers. Then, February 12, 1698, a pro- clamation calling upon the magistrates strictly to enforce the laws of trade and punish piracy was issued.3
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.