USA > Pennsylvania > History of proprietary government in Pennsylvania > Part 44
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1 Col. Rec., iii, p. 74. When the fact that, in 1729, the crown had purchased from the proprietors of the Carolinas their interests in those provinces became known, some anxiety was felt in Pennsylvania lest the crown might take posses- sion of that province also. But the proprietors declared that the act of parliament passed to enable the crown to make this purchase wonld not affect Pennsylvania. Penn MSS., Offic. Corresp., ii, J. Logan to John Penn, Nov. 17, 1729 ; P. L. B., i, Proprietors to J. Logan, April, 1730.
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the before mentioned purchase and agreement should be made and completed."I
These last statements of the Board of Trade suggest the wisdom of a brief digression on the manner in which the home government treated the acts passed by the legislature of Penn- sylvania. As the Board intimated, the royal charter provided that a duplicate of all acts passed in the province should within five years after their passage be sent to the Privy Council. If within six months after the date of their receipt they had not been declared void by the king in council and under the privy seal, they should continue to be in force. But for several years after the founding of the province this provision of the charter was not obeyed, much to the annoyance of the pro- prietor who often requested copies of the provincial acts to be sent him.2 At length, in 1694, a number of acts were laid be- fore the king in council. Of this number two were repealed. Indeed Penn himself appears to have petitioned against one of them.3 After 1696, however, when the Board of Trade was established, the custom was to lay before that body all acts passed by the legislatures of the colonies. It in turn laid them before the attorney-general,4 and the solicitor-general for their inspection. On the strength of the opinion of these officers for or against the approval of the crown, the Board
2 Col. Rec., i, p. 318. 1 N. Y. Col. Doc., v, pp. 603-4.
3 Mem. Pa. Hist. Soc., iv, pt. ii, p. 253-4.
4 In 1705 the proprietor told Gov. Evans that many acts had been placed in the hands of the attorney general for his inspection, but for the want of a large fee no report on them had been made to the Board of Trade. "Be sure," wrote the proprietor, " the very next assembly to let the laws pass with the queen's name, though under my seal, according to charter, the attorney general making the want thereof an ugly objection against the confirming them, though a good fee would go a great way to clear the scruple, if I had it to give him." For that purpose Penn desired that the province would send him fifty or one hundred guineas. ( Penn and Logan Corresp., i, pp. 297, 342.) His wishes were not complied with, but after he had spent more than £2,000 a report on the acts was made. Out of one hun- dred and five transmitted, fifty-two were declared void by the queen in council. Col. Rec., ii, pp. 193 ,251.
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rendered a report to the committee of the Privy Council for Plantation Affairs, and it in turn to the king in council. But after 1746 the proprietors of Pennsylvania ordered their at- torney to leave with the clerk of the Privy Council all acts passed in that province, and not to lay them directly before the Board of Trade. The reason for their doing this may be found in the action taken by the Board of Trade in that year. It seems that about 1733 the statement was made that no acts of Pennsylvania had been regularly repealed. In the original of the royal charter it had been provided that they should be re- pealed under the privy seal, but in all the copies of that docu- ment provision was made for their repeal by order in council. As the former method had never been adopted, the legality of the latter, the procedure hitherto followed, might be questioned. Hence Lord Wilmington, president of the Privy Council, sug- gested to the proprietors that they consent to have an act of parliament passed to explain the clause in the charter dealing with this subject. Fearing, however, that at the same time a more searching examination of the document might be made, they refused to consider the suggestion," and the following year, a statute was passed in Pennsylvania confirming the repeal of all acts that had been repealed by order in council.2
1 Penn MSS., Corresp. of the Penn Family, John Penn to T. P., July, 1733.
2 About the same time a committee was appointed by the House of Lords to consider a representation from the Board of Trade urging that every colony, whether directly subject to the crown or not, should be obliged to send to the Board a complete collection of its laws. When this should have been done, the Board thought that, notwithstanding "any limitations by charter or otherwise, the king should repeal any law that had not received the approval of his majesty in council, or that might be found detrimental to the interests of Great Britain. It urged also that all laws, within a year after their enactment, should be sent to Eng- land, and, with the exception of such as might be necessary for immediate defense, should be inoperative until confirmed by the king. The House of Lords or- dered a bill founded on the representation to be introduced in the next session of parliament. Though nothing further appears to have been done, the assembly of Pennsylvania resolved to send to the king and parliament an address showing how injurious to the rights of the province as derived from the royal charter would
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But in 1746 the Board of Trade recommended for repeal three acts passed in 1722, in 1729, and in 1730 respectively. The ostensible reason for this was that, since they had been laid be- fore the Board of Trade only, and not before the Privy Council as provided for in the charter, they were liable to disallowance by the crown. This was assuredly a remarkable action of the Board on a point that had not as yet been fully decided. Had this view been adopted it would be impossible to say how far the crown might have proceeded to annul the oldest laws of the province. The proprietors thought that such a power of repeal might be extended to all laws not actually confirmed by the crown. If this should be the case the clause in the charter, which made all acts valid unless re- pealed within six months after their transmission to England, would be a nullity. Hence the proprietors petitioned the king not to confirm that part of the report which recommended the repeal of the three acts. On their intimation to the Board that the assembly by passing an act free from all objectionable clauses would thereby itself repeal the unrepealed acts, the re- quest of the proprietors was granted. Hence, when, in 1749, the assembly contemplated the passage of an act similar to that of 1730, the proprietors suggested that their promise to the Board should be carried out. An acquiescence in this suggestion was followed by a vote of thanks to the proprie- tors for their intervention.2 Several years later the Board ac- knowledged that by the charter the king had reserved the
be the course of proceeding suggested by the Board of Trade. Votes, iii, pp. 214- 15 ; Penn MSS., P. L. B., i, John and Richard Penn to T. P., May 12, 1734.
1 A few months later the proprietors called the attention of the assembly to an act for reissuing paper money, in which mention was made of the king's confir- mation of a previous act. They suggested, therefore, that, as the acts of the legisla- ture were subject only to repeal, not to confirmation by the crown, statements of this character should be avoided. P. L. B., ii, T. P. to the speaker of the assem- bly, March 9, 1747.
2 Votes, iv, p. 61. See also Col. Rec., v, p. 500; Pa. Arch., Ist series. i, pp. 716-721.
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right of repealing only such laws" as were contrary to acts of
1 In obedience to an order from the Privy Council the Board of Trade, in 1752, prepared instructions for the governors of royal provinces to have the laws then in force revised, and to re enact them in the form of a code, but with the proviso that no law should take effect till the pleasure of the king thereon should be known. The Board was, however, in doubt as to the power of the crown to send such in. structions to the governor of Pennsylvania. Hence it resolved to ask the opinion of the attorney-general and solicitor general. N. Y. Col. Doc., vi, p. 755. As no such instructions were sent to the governor of Pennsylvania, it is probable that the opinion of the crown lawyers was not favorable. In this connection it may be said that, whatever power the crown may have had to instruct the governors of the provinces immediately subject to it, some doubt existed as to how far such a power could be extended to the governors of proprietary provinces. At first the instruc- tions sent to the governors of Pennsylvania related almost exclusively to matters of defense, but gradually included a variety of subjects. Pa. Arch., Ist series, i, pp. 306, 325. In fact, in 1744, a bill to prevent the colonies from issuing paper money as a legal tender was brought into parliament, and one of the clauses purported to give the force of laws to all instructions that the crown might send to the gover- nors. But, largely owing to the efforts of the colonial agents, three bills to accom- plish this design failed of passage. Votes, iv, pp. 4, 351. Moreover, in the discussion of the bills of credit it has been noticed that the king forbade any paper money to be issued, unless acts for that purpose contained a clause suspending their execution until his pleasure should be known. The assembly of Pennsylvania claimed that instructions of this character were subversive of its liberty and dero- gatory to the rights of the proprietors. Gov. Morris, however, thought that a dis- tinction existed between the general power of instruction and a royal order founded on an address of parliament, and relating only to matters wherein the prerogatives of the king were concerned. But the assembly failed to coincide with the views of the governor. It held that the powers granted by the royal charter for passing laws gave the governor ample authority to assent to all desirable enact- ments, and insisted that, since the crown had bestowed such powers, it could not, even upon an address of parliament, resume thein or impose limitations other than those contained in the charter. Ibid., pp. 252-262. With this opinion of the assembly the proprietors heartily concurred. They believed that, although there was considerable difference between the powers of the king and those of a propri- tor, yet, strictly speaking, a person might be in the service of the latter and not in that of the former. Granting that the powers of the king were the greater, still it was unreasonable to suppose that he could exert them in the proprietary adminis- tration where and when he might see fit. Hence, in 1755, the proprietors criti- cised Gov. Morris for his attempt to defend royal instructions, because, said they, if the assembly doubted the legality of them, either it or the governor should appeal to the crown for a decision thereon. Indeed, Thomas Penn declared that, if he had been governor he would have passed the bill for the issue of paper money in
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parliament, to his prerogative, and to the allegiance due him from the proprietors and inhabitants of Pennsylvania.1
Up to this point we have noticed how remarkably hostile to the proprietary form of government was the attitude of the Board of Trade. The crown assumed jurisdiction over the Jerseys in 1702, and over the Carolinas in 1729, and sus- pended proprietary government in Maryland from 1690 to 1715. But, with the exception of the brief administration of Gov. Fletcher, Pennsylvania was left undisturbed. With this the Board was never satisfied. It probably would not have been content unless a system of imperial administration had been established and all the colonies directly subjected to the crown. Failing in its efforts in this direction, when, in 1760, the acts, the acceptance of which had been secured through the corruption of Gov. Denny, came up for its consideration, the Board seized the opportunity to express at some length its opinion on the relations existing between the assembly and the proprietors, and on the failure of the latter consistently to exercise the prerogatives of the crown with which they had been entrusted. It seems that the counsel for the assembly had declared that by the charter the right of repealing acts of the provincial legislature was confined to the preservation of the sovereignty of the crown, and to the mere general dependence of the subject. However discretionary the exercise of that power of repeal by the crown might be, the
spite of any royal instructions to the contrary. At the same time the proprietors did not think it wise to direct the governor to disobey orders from the crown. Penn MSS., T. P .. to Peters, March 22, 1755; Ibid. P. L. B., iv, Feb. 21 and Oct. 25, 1755. Their policy in this respect was due to the opinion of the attorney general, who had stated that to disregard orders from the king was not " safe, ad- visable or consistent" with the duty of the governor. Votes, iv, pp. 344-7. But the ministers later admitted that royal instructions, even though founded on a request from parliament, were not binding in all cases, and agreed to withdraw the one relating to the issue of paper money. Penn MSS., Supp. Proc., T. P. to Peters, Oct. 25, 1755.
1 Penn MSS., Supp. Proc., T. P. to Peters, Oct. 31, 1753; Ibid., P. L. B., iv, to Morris, Feb. 26, 1755.
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counsel asserted that the proprietors were excluded from claiming any benefit from it, and that, the consent of their deputy having once been given, they were deprived of any right to complain. The Board, however, thought that, no matter how jealously the crown might guard the sovereignty the provision of the charter that the acts of the provincial legis- lature should be in accordance with equity showed that the crown should be just as jealous in behalf of the subject, so that the acts should not be contrary to reason or repugnant to the laws of England. Hence, if the king had reserved to him- self the right of final hearing in judicial appeals, it must not be supposed that he had divested himself of the right to hear ap- peals in legislative matters. Many laws of the province, con- tinued the Board, had been declared void by order in council, and not under the privy seal. That the assembly in 1934 had passed an act to confirm their repeal was true. But the right of the crown did not originate in, or derive any part of its validity from the charter, or from any confirmation of it by the legislature of Pennsylvania. The crown had an inherent por- tion of sovereignty by which it owed protection to all its subjects alike, and for this reason had a clear right to examine any law. It could not, therefore, preclude itself from receiving information which any one might furnish, and by which it might be better qualified to exercise the power it had reserved. The crown then would hear the proprietors in common with any other person in the province, all of whom should be con- sidered as being with them parties to every law, having by the nature of the constitution given their assent to it, either actually, or by their representative. The crown disregarded the person who complained, and attended solely to the justice of the act and to the merits of the complaint. The manner of passing the bills in 1759 showed that the assent to them was really not the act of the proprietors, and the Board believed it unjust to contend that they should be bound thereby. The position of the assembly was criticised as in-
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consistent with the nature of all deputed power, and might, if taken concurrently with its proceedings, establish a system of collusion between governors and assemblies, especially if the popular body should be allowed to use public money to cor- rupt the governor. For one branch of the government to corrupt the person entrusted with the prerogatives of the other, the Board believed to be a "mischief in government." The act of the governor in passing laws contrary to his instructions, and to the confidence reposed in him by the proprietors, gave the Penns a just title to redress. As indi- viduals who had been wronged, and as persons entrusted with certain powers of government, they could apply to the crown for relief. If some of the acts under consideration, or rather the more dangerous claims set up to support them, were per- mitted to remain in force, the Board declared that the rights of the crown, either reserved to itself or delegated to the pro- prietors, were likely to be destroyed. All the acts, even those which from peculiar circumstancees it was thought fit to recommend for approbation, contained some encroachment on the prerogative of the proprietors, as they were trustees for the crown, or on their property as landholders in the province. To check such encroachments, and to restrain such irregular- ities, the constitution admitted of two methods, viz., the hold which the proprietors had over their governors, and the king's prerogative of repeal. An abridgement of that preroga- tive had been contended for by the assembly ; and the right of the proprietors to instruct their deputy had been denied, and the justice of indemnifying him against his principals as- serted. The proprietors, said the Board, had not improperly exercised their prerogatives, but they ought to have been more uniform in their maintenance of them. Though they declared themselves entrusted with the prerogatives of the crown, they had not duly supported the constitution of the province and their own dignity as a very material part of the legislature. They had regarded themselves, declared the
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Board, in the narrow and contracted view of landholders, and had been oblivious of their prerogatives so long as their property remained secure; and never " felt for their privileges as proprietaries till, by the diminution of those privileges, their interests were affected as individuals." The Board thought it to be its duty to " bring back * * * the constitution of the colony to its proper principles, to put the government in a reg- ular course of administration, to give to every branch of it the exercise of its proper powers, to restore to the crown in the per- son of the proprietaries its just prerogatives, to check the grow-
* ing influence of the assembly, and to distinguish * the *
executive from the legislative parts of government." The pro- prietors had consented to share their prerogatives with the as- sembly, but that body had insisted on engrossing them. It was vain to tamper with the king's prerogatives, said the Board. Every new concession became the foundation of some new demand, and that in its turn of some new dispute. The Board then sharply censured the supineness of the proprietors and the ill-restrained encroachments of the assembly. It de- clared that, since the governor and assembly were the only branches of the legislature, there being no intermediate body except the proprietary council, whose advice, however, the governor might accept or reject, to interpose between the en- croachments of the assembly or the oppression of the pro- prietors, the peculiar circumstances of Pennsylvania made restriction particularly necessary. The assembly appeared to claim from its constitution the extraordinary power of a per- petually existing body, subject neither to prorogation nor dissolution. The interposition of the crown was necessary to keep within bounds the authority of the assembly, and to protect its own rights which had been gradually surrendered by the proprietors, and which, in the opinion of the Board, would " always be invaded while the prerogatives of royalty" were placed "in the feeble hands of individuals," and the powers of the crown exercised without the authority to render them
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effective.1 In the next chapter we shall see how this idea, long cherished by the Board of Trade, that all the colonies should be under the immediate jurisdiction of the crown, appeared in the case of Pennsylvania almost on the point of realization.
Resuming the discussion of matters connected with the de- fense of the province, we find that, in 1739, on account of the approaching war with Spain, the proprietors instructed Gov. Thomas to establish a militia. At the same time they warned him not to allow such a proceeding to violate the principles of the Quakers.2 In the following October the governor recom- mended to the assembly the enactment of a law in compliance with the wishes of the proprietors. In reply the assembly declared that, although it was willing that those whose con- science would allow them so to do should bear arms, a law to establish compulsory military service would violate a funda- mental principle of the provincial constitution, viz., the clause in the charter of privileges which insured to all liberty of con- science. On the other hand, to compel some to serve while others were exempted from service would show partiality. The assembly further hinted that, as former governors had made use of the powers granted by the royal charter to form military organizations, the present governor might do the same, except so far as those powers were limited by provincial laws relating to liberty of conscience. The assembly then as- serted that for the defense of the province it would trust in the mother country and in God.3 To this assertion of the as- sembly, however, and in reliance on the fact that petitions re- questing measures to be taken to place the province in a posi- tion of defense had been sent to that body, Thomas set forth at some length the disadvantages of a voluntary militia, and the necessity of establishing by law one that would be adequate for the purpose. But after several sharp messages and retorts
1 Col. Rec., viii, pp. 525-29, 549-52.
2 P. L. B., i, John Penn to Gov. Thomas, Aug. 2, 1739.
3 Votes, iii, pp. 353, 362.
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had been exchanged, the assembly somewhat testily declared that on the subject of defense it had nothing further to say.I
In 1740 the king sent to Thomas instructions concerning a supply of military stores, and the equipment and transporta- tion of soldiers for an expedition against Carthagena. The governor immediately communicated his orders to the assembly, but obtaining no satisfaction from it, he made vigorous efforts to establish a voluntary militia. In this he was successful, for eight companies of 100 men each were organized in Pennsyl- vania and the Lower Counties, and by private subscription sup- plied with provisions and sent on the expedition mentioned." Unfortunately, however, a number of persons who joined this organization were apprentices and indented servants.3 This
1 Votes, iii, pp. 364-380.
2 Gov. Thomas to the Board of Trade, Oct. 20, 1740; Penn. MSS., Offic. Cor- resp., iii, to John Penn, Nov. 4, 1740; lbid., P. L. B., i, John Penn to Gov. Thomas, Nov. 26, 1741 ; Col. Rec., iv, p. 466; " The Case of the Inhabitants in Pennsylva- nia," 1746; Pennsylvania Gazette, April 17, July 10, Sept. 18, 1740.
3 The earliest complaint against this practice in Pennsylvania appears to have been made in 1711. Votes, ii, pp. 101-103. In regard to these persons it may be said that it was a custom for immigrants of the poorer class to pay for their passage by selling their labor for a number of years to the captain in whose ship they came. The captain usually sold their service for a specified term to farmers. But by enlist- ing these indented persons as volunteers recruiting officers deprived the farmers of both their labor and the amount they had paid for it. Washington, Works (Sparks' Ed.), ii, pp. 168, 189, 199. Still, in extenuation of the conduct of the officers and servants, it was claimed that many of the latter had been cheated by the ship-own- ers and forced to perform hard labor with but little compensation. Gov. Thomas to the Board of Trade, Oct. 20, 1740 ; Col. Rec., iv, p. 467. The grievance again appeared during the French and Indian war. Upon the receipt of a number of petitions against the practice, the assembly instructed Franklin to request Gen. Dunbar to discharge recruits who were known to belong to this class of persons. Failing to obtain satisfaction from that officer, the assembly turned to the governor. In reply to its address he acknowledged that the practice was somewhat unjust, but expressed doubt whether the right of the crown to the personal service of its sub- jects could be restricted by private contract. The assembly rejoined that a ser - vant regularly indented and imported into a colony under an act of parliament was not liable to volunteer duty. It then requested the governor to issue a proclama- tion ordering the magistrates to lend their assistance to restrain the enlistment of
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