USA > Pennsylvania > History of proprietary government in Pennsylvania > Part 7
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It was fortunate that such land-jobbing enterprises were frustrated. In fact the retention of control by the proprietors over the land tended to the advantage of the people be-
1 P. L. B, viii, T. P. to John Penn, Dec. 14, 1765, to Allen Dec. 15, 1765 ; to Hockley, Apr. 2, 1766; ix, to Peters, Aug. 6, 1766.
? Ibid., x, T. P. to Physick, May 12, 1769.
$ Call, Pa. Hist. Soc., i, no. 2, pp. 94-102 et seq.
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cause, owing to the lack of sympathetic assistance from the colonists, they were often incapable of enforcing even their legal rights. A Pennsylvanian might succeed in establishing a monopoly. An Englishman three thousand miles away, and possessing but little real power, was not greatly to be feared. The state subsequently erected was the gainer by the pro- prietary policy.
CHAPTER IV
INCIDENTAL PROPRIETARY RIGHTS
IN addition to the territorial possessions conferred by the charter, certain privileges which were inherent in the nature of a proprietorship, as derived from or analogous to the feudal powers formerly held by the counts palatine, were also be- stowed upon Penn. The right to receive profits from exports and imports is distinctly mentioned in the charter as be- longing to the proprietor, but they should be assessed by him with the cooperation of the assembly. The other rights were of course incidental to his feudal authority. They were mainly small rents and perquisites customarily given to the governor as part of his salary. They consisted of licenses, fees, fines and forfeitures, as well as the rent from ferries, and income from official patronage.1 William Penn claimed also the right to strays, escheats, deodands, and the right to erect windmills.2
1 The perquisites had become so large in 1765, that the proprietors believed they were sufficient to support the governor without any salary from the assembly. P. L. B., viii, T. P. to John Penn, July 6, 1765.
2 The duty of seizing stray animals, particularly horses, was entrusted to the pro. prietary rangers appointed in each county. The animals were sold at auction, and a portion of the proceeds paid to the receiver general. In 1717 the powers of those officers were temporarily extended to " ranging and keeping the marches of the province" and the Lower Counties secure against invaders from Maryland and elsewhere. Rangers were also employed occasionally as stewards to super- vise the tenants on manors. The other rights were never exercised. Col. Rec., i, p. 438 ; iii, p. 37; Bradford, Laws of Pa .; Huston, Original Land Titles, etc., p. 80 et seq .; Penn and Logan Corresp., i, p. 59; P. L. B., iii, T. P. to Hamilton, Aug. 27. 1750.
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Finally profits of certain markets and stalls were in some cases reserved to the proprietors.I
In 1684 the assembly granted Penn an excise tax and an impost on exports and imports. After that body had passed a resolution that the government should be supported by the inhabitants, the law was enacted as a testimonial of the grati- tude and affection of the inhabitants to the proprietor " for his great care, charge, and liberality " toward them. These per- quisites were recoverable by process similar to an action for debt, and and one-third of all forfeitures was also reserved to the proprietor.2 Penn and the council now conferred with cer- tain individuals about an easy method of collecting the tax, but they being interested in the sale of liquors, sent a message to him declaring that the law could not be executed without great difficulty and expense. On condition that no attempt should be made to enforce it, they even offered to raise by voluntary subscriptions a sum of £500 or more for the sup- port of the government. In order that the industry of the province might not be retarded, Penn and the council agreed to this proposition, and the subscription commenced. "But some of the collectors were strangers and had little influence, others were a little too great to be much imposed upon, many were sick, and still others preferred their own ease to the pub- lic good."3
After Penn had returned to England in 1684 the members of the council, the " the great and rich men," proved to be not only unwilling to contribute their share, pleading ex- emption on the ground of their public services,4 but were dila-
1 Penn MSS., Supp. Proc., T. P. to Peters, Apr. 2, 1747 ; P. L. B., viii, T. P. to John Penn, Dec. 14, 1765 ; x, to Richard Penn, Apr. 30, 1772.
2 Votes, i, pt. i, p. 28; Charter and Laws of Pa., p. 138.
3 Penn MSS., Ford vs. Penn: " A True and Full Narrative of the Beginning, Progress, and Conclusion of the Voluntary Contribution for the Maintenance of Government, in Lieu of the Act of Excise imposed upon strong Liquors."
4 Inasmuch as each member of the council received three shillings sixpence a day for his services, and two pence a mile for his travelling expenses, the desire for exemption had a selfish aspect. Charter and Laws of Pa., p. 147.
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tory in furthering the collection.' Only a few spasmodic efforts were made in response to the proprietor's repeated and urgent requests to hasten the payments. His agent, Markham, sent a memorial to thern with a reminder of their duty in the matter, at the same time calling attention to the erroneous idea, then prevalent, that the proprietor was wealthy and could afford to support his government. The council replied to the memorial by assenting to the repeal of the law. Of this Penn bitterly complained, but without avail.2 In 1700 however, after he had repeatedly asked the assembly to recall the fact that he had received no public support for nearly twenty years, a law similar to the one passed in 1683 was enacted. But this speed- ily aroused opposition, and the assembly repented of its gener- osity. Then he offered to repeal the law if the assembly would give him an equivalent, but this proposition was not accepted. The next year Penn left the province for the second time, but it appears that the revenue arising under the act, so far as collected, was paid into the public treasury.
Fines and forfeitures were also the property of Penn and his heirs. But from the very outset only portions of these were given to them. In the majority of cases they were re- served by law for the support of the poor, the repair of roads and bridges, the payment of judges' salaries, and other county expenses. Penn complained frequently that even such fines and forfeitures as the assembly had allowed him were grudgingly paid, if paid at all.3 After his private affairs had become in- volved however the custom arose of paying fines and forfeitures to the governor, unless otherwise reserved.
1 " Thomas Lloyd took it ill that the collectors should desire the council to sub- scribe after the multitude." Penn MSS., Ford vs. Penn.
2 " I too mournfully remember how noble a law I had of exports and imports. But Thomas Lloyd * * * complemented some few selfish spirits with the repeal thereof. * * * That has been the source of all my loads and liabilities to support myself, under the troubles that have occurred to me, on account of settling and maintaining the colony." Penn and Logan Corresp , ii, p. 70.
$ Penn and Logan Corresp., ii, pp. 236, 291.
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So far as tavern licenses were concerned, Penn was very will- ing that the county courts should have the power, if not of actually issuing the licenses," at least of recommending to the governor the names of those to whom they should be granted.2 The rates were early fixed by law, and the licenses them- selves were issued by the governor, on the recommendation of the justices or of the mayor's court of Philadelphia.3 But as the population increased, it was occasionally found expedient for the justices in the frontier counties to issue licenses, the proceeds of which formed a portion of the county revenue. Toward the middle of the eighteenth century the claim was made that licenses were a gift from the people to the governors. It was also said that the justices in order to make a return to the governor, for continuing them in office, often recommended persons simply because they were agree- able to them. For these reasons it was urged that the gover- nor should be excluded from any share in issuing such licenses. It was even insinuated that the proprietors connived at the practice in order to share the profits with the governor.4 A conference was therefore held in London in 1765 between the proprietors and representatives of the assembly, the re-
1 " That no person within this government shall be licensed by the governor to keep ordinary, tavern, or house of public entertainment, but such who are first recom- mended to him under the hand of the justices of the respective counties, signed in open court, which justices are and hereby shall be empowered to suppress and forbid any person keeping such public house upon their misbehaviour, on such pen- alties as the law doth or shall direct, and to recommend others from time to time as they shall see occasion." Charter of Privileges, 1701; Col. Rec., II, p. 59.
2 Col. Rec., i, p. 529 ; Penn and Logan Corresp., ii, p. 246.
3 Acts passed in 1700, 1710, 1718, and 1721, provide that the justices should have the power of recommendation, as well as of fixing tavern rates; and regu- lated the fees for licenses.
+ Votes, v, p. 337 : " I join with you," wrote Thomas Penn to Gov. Hamilton, Aug. 10, 1763, " that public houses ought not to be unnecessarily increased, but I think the people had as great inclination to distress a governor as to preserve the morals of the people, and as this is so large a perquisite of government, it ought to be closely attended to." P. L. B., vii.
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sult of which was that the former agreed to allow the grand juries to recommend to the justices the granting of licenses, and they in turn to the governor. But a few months later the governor was ordered not to depart from the old method, lest thereby he should give up any of the rights of government. The proprietors offered, however, to exchange their rights to grant licenses for a lump sum to be paid annually to the gov- ernor, but to this the assembly would not consent.I
Fees were early regulated by the assembly, though as in other provinces it was contended that the right to do this was vested exclusively in the governor and council.2 But, in spite of objections from the council the assembly established its claim to settle fees, even extending it to the private affairs of the proprietors insomuch that its reduction of fees at different times caused several protests and resig- nations.3
Finally, the proprietary claim to ferries was disputed. The more correct interpretation of the words of the letters patent conveying absolute ownership of the rivers is that the pro- prietors had the legal right to establish ferries, and to receive the profits therefrom. This view is further strengthened by the fact that they represented the crown. By the common law no one could establish a ferry without prescription or a charter from the crown. Ferries were franchises granted by the crown, and mere riparian possession did not necessarily entitle the possessor to a franchise.4 The establishment of ferries was, therefore, a royalty belonging to the proprietor irrespective of any act of the provincial legislature. But the assembly in 1693 took a different view. It expressed the
1 Penn MSS., Private Corresp., v, Richard Penn to T. P., Feb. 11, 1765; P. L. B., viii, T. P. to John Penn, July 6 and Nov. 30, 1765.
2 Col. Rec., i, p. 471 ; ii, p. 53; Votes, ii, p. 55.
3 Votes, ii, pp. 400, 439; Col. Rec., v, p. 578; Penn MSS., Offic. Corresp., i, S. Clement to J. Logan, May 30, 1720.
4 Amer. and Eng. Cycl. of Law, vii, p. 941, and cases cited.
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idea that the establishment of ferries was a duty of the gov- ernor and council. Fletcher, the royal governor, stated that he believed it was a royalty granted to the proprietor, and expressed surprise that the assembly should be desirous of abridging his rights. He then referred the matter to the commissioners of property, and with their acquiescence issued a proclamation prohibiting all persons from plying any ferry within a certain distance from the proprietary ferries. The assembly, however, had some ground for its claim, because Penn in 1684 had assented to an act establishing certain ferries at the expense of the counties wherein they were situated. The rates of ferriage were fixed by this act, and it was provided that the profits should be paid into the county treasury. But in case private parties were willing to maintain a ferry at specified localities they might receive the profits.I This was perhaps an unfortunate concession by the proprietor, but his presence in Pennsylvania at that time was sufficient to protect him against the immediate loss of any rights in conse- quence of it. In 1696 Gov. Markham and the council ordered a ferry to be established on condition that the ferryman should give security to the proprietary officers for the proper perform- ance of his duties.2 Indeed several acts of this description were passed in 1700 and 1701, but chiefly to regulate the rates of ferries.3 During Gov. Keith's administration, 1716-1726, seven acts were passed, either giving certain specified persons the right to establish a ferry, or allowing the county court to lease it out. The ferrymen were amenable to the county court, the rates of ferriage were regulated, and the proceeds were turned into the county treasury, or given to the tenants of the ferry.4 The assembly also in 1736 resolved that the
1 Charter and Laws of Pa., p. 137.
2 Col. Rec., i, p. 514.
3 Bradford , Laws of Pa.
+One feature of the policy of the English government was to restrict the passage of private acts by the colonial legislatures. In accordance with this, an instruction had been issued by the lords justices to Keith, July 23, 1723, that he should with-
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granting by the proprietors of licenses to keep ferries and to regulate the rates of ferriage without the concurrence of the legislature, was prejudicial to the general interests of the province. The Penns under protest agreed that the rates should continue to be determined by the legislature, and that no ferries should be established except where the county court or highway commissioners might see fit to recommend them1.
hold his consent to any private act, until proof was submitted to him in council that publication had been made of the parties' intention to apply for such an act. Votes ii, p. 394. In spite of this instruction, Keith passed the bills for establishing ferries.
1 Votes, III., pp. 249-251. From the appointment of Gov. Thomas in 1741 as the official head of the land office, the governors were entrusted with the power of granting licenses for ferries.
CHAPTER V
THE DIVESTMENT ACT
FROM an early date the wildest ideas prevailed in Pennsyl- vania concerning the wealth of the proprietors.ª It was esti- mated by some that their income from the province amounted to £100,000 per year, and that the value of their estates there exceeded £10,000,000 sterling. Upon this subject the imagi- nation of Benjamin Franklin ran riot when he gave the author- ity of his name to the document, which as it appears in the ap- pendix to his " Historical Review of the Constitution and Government of Pennsylvania " purports to be based on Thomas Penn's estimate of the value of the proprietary estates. No authentic document of this origin or nature is known to exist. Prolonged and careful research among the Penn Manuscripts has revealed but one direct reference to Franklin's conclusion as based thereon, and that a declaration by the proprietor whose name is attached to it, that its contents and conclusions were false. "It is quite impossible," wrote Thomas Penn, May 18, 1767, to Mr. Peters, the former secretary of the land
1 " People imagine because we are at the head of a large province we must be rich ; but I tell you that for fifteen years, from 1732 to 1747, I laid by about £100 a year." P. L. B., ii, T. P. to Peters, Oct. 9, 1749.
It must be remembered that the proprietors were subjected to an enormous ex- pense during the continuance of the litigation with Lord Baltimore. Several offi- cers of the province, as the registers general of the counties and the naval officers of the port of Philadelphia, whose salaries aggregated at least £1600 per annum, were also paid by them. Indeed, not till late in the history of the province were their revenues very large. Ibid., vi, T. P. to Hamilton, Oct. 18, 1760; x, T. P. to Hockley, Dec. 1, 1773; Penn MSS., Pennsylvania Land Grants.
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office, "that Mr. Franklin's accounts can have any founda- tion."I
Dr. Franklin was undoubtedly well acquainted with the gen- eral procedure of the land office, and to this fact may be as- scribed the plausibility of his carefully elaborated estimate. But it is not at all likely that his statements were drawn from authoritative sources. He was not on good terms with the proprietary officers, while his dislike of the Penns and their cordial dislike of him are only too well known.2 Hence both the proprietors and their officers would never furnish him with any detailed estimate of their property, because he might use it for a sinister purpose. Wherever he derived his information, whether from his own imagination or partly from the imagi- nation of others, it must be regarded as the expression of an opinion based on prejudice and not on facts.
Having thus indicated from one point of view the unreliabil- ity of Dr. Franklin's estimate, let us consider it from another. The "Pennsylvania Land Grants" give an early account of lands disposed of by the commissioners of property in the province and the Lower Counties. Herein it appears that previous to 1712, 91,000 acres were sold at prices ranging
1 " Mr. Franklin has published a book containing many gross falsehoods." P. L. B., vi, T. P. to Hockley, Sept. 21, 1759.
2 Dr. Franklin's conference with Thomas Penn in 1758 shows his feeling toward that proprietor. Speaking of Thomas Penn's remarks about his father's charter of privileges, Franklin wrote : " He said that with a kind of triumphing, laughing insolence, such as a low jockey might do when a purchaser complained that he had cheated him in a horse. I was astonished to see him thus meanly give up his father's character; and conceived at that moment a more cordial and thorough contempt for him than I ever before felt for any man living, a contempt that I cannot express in words." Shippen Papers, p. III. On the other hand, the attitude of the proprietors toward Franklin is well illustrated in a letter written by John Penn, while governor of the province, to Thomas Penn, his uncle, and dated May 5, 1764. He wrote : " There will never be any prospect of ease and happiness while that villain (Franklin) has the liberty of spreading about the poison of that inveterate malice and ill nature which is deeply implanted in his own black heart."
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from £5 to £130 per hundred acres. The total amount re- ceived from sales previous to the above mentioned date was £10,640. Furthermore, from entries and accounts in the secretary's office, and from abstracts of warrants for taking up lands issued between 1681 and 1756, and deposited with the surveyor-general, it was estimated that 2,544,040 acres were laid out, exclusive of 253,505 acres for the proprietary family, and 80,000 acres for various companies. On the total amount the quit-rents were valued at £3307, 16 s, 2d.' Again, in 1757, John Penn, grandson of the first proprietor, at- tested the following statement : 307,795 acres had been granted since his arrival, a short time previous. Upon this the purchase money at the rate of £15. 10 s. per hundred acres, amounted to £47,709. But of this sum only about £6,527 had been paid, while about £197,193. 10 s. was still due from the province in rent and purchase money, and £31,813 from the Lower Counties. To the government and escheated lands no value was assigned, nor were the bank lots included. The total value of the estate was estimated at £3,806,012.2
Though some small returns were made to the proprietors during the Revolution, the land office was practically closed from 1775 to 1781, when it was formally reopened under authority of the state. It was natural also that the difficulties connected with the settlement of the estate of Thomas Penn should prevent the disposal of land on any large scale. The sales of land and balances due on contracts already made, which could not readily be perfected by patent, however, were the principal sources of the proprietary revenues at that time. Compared with this the quit-rents on the patented lands, being all that could be legally recovered by distraint, were of no great importance. It appears probable that the total yearly amount of quit-rent in the province, as reckoned in 1775, was £3,470 sterling.3
1 Penn MSS., Pennsylvania Land Grants. 2 Ibid.
3 Penn-Physick MSS., iii, E. Physick to Juliana Penn, Nov. 30, 1775, and May 28, 1778.
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But additional evidence on this point appears in connection with the history of the divestment act. We find that when the supreme executive council and the assembly elected under the constitution of the commonwealth came into power, the friends and the officers of the proprietors saw only too clearly that confiscation loomed threatingly before them. In 1778 laws were enacted making £155 continental money a tender for £100 sterling, disabling any person who would not take an oath of fidelity to the state from selling land or suing for a · debt, and compelling all persons who held offices by com- missions under authority of the crown or of the proprietors to take the oath at once, or forfeit their real and personal estates.
Now Edmund Physick had been for thirty-three years in close connection with the land office. At the time of which we are speaking he was receiver general. By long experience then he was eminently fitted to speak with authority concern- ing the proprietary estates and income. In compliance with the request of the proprietors, and fearing lest from the lack of proper knowledge on this subject, the legislature might pass an act for the confiscation of the proprietary estate which would be too sweeping in its provisions, he prepared the " Pennsylvania Cash Accounts," which is a summary extracted from the various journals of property, of the amount of the pro- prietary estates and the grants and revenues therefrom, princi- pally between the years 1701 and 1778. Prior to 1700 no regular accounts were kept. The " Cash Accounts," together with a deposition sworn to before the chief justice of the com- monwealth are the authority for the following statements. It is believed to be sufficient to give a fairly accurate view of the grants and receipts. At the outset it is necessary to state that from the government, from escheated lands, from the three- fifths of gold and silver ores and the one-fifth of other ores, no income of practical importance was realized. From different surveys and computations it was estimated that the proprietary estates, exclusive of the Lower Counties, included 27,955,200
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acres. The amount of land given, granted, and appropriated between 1681 and 1776, including the proportions allowed for roads, bestowed upon members of the family, and the like, was 6,363,072 acres, leaving thus 21,592,128 acres from which the proprietors never received any return. In fact, just before the war several thousand acres were sold nominally for large sums, but of these nothing was ever paid. The gross sum of money received for lands from 1701 to 1778 was £688,486, exclusive of that which since 1757 was received for manor lands. The quit-rent reserved during this period amounted to £182,248- I2S. Iod, sterling. But of this only £63,679 8s. 3d. had been received, leaving £118,569 4s. 7d. still due. In 1732 the an- nual quit-rents and profits amounted to £567 75. 2d .; in 1769, to £4,595 13s. 7d., and in 1776, to £10,204 os. 7d. The profits and emoluments arising from royalties, patronage, and appointments to office never exceeded £6,000 sterling per an- num, and that sum was reached only very late in the history of the province. In 1776 common lands were usually granted at the rate of £10 per hundred acres, £5 for purchase money and £5 in lieu of one penny sterling quit-rent. It is thus seen that the quit-rents were not compounded for until the outbreak of the Revolution, though the fact that they were so scanty, had been urged before as a good reason for compromise. If the 21,592,128 acres for which nothing had been received, had been sold at f10 per hundred acres, £2,159,212 14s. would have been realized.
A comparison of this summary with the one given by Frank- lin will further disclose the unreliability of the latter. But such a comparison is useless, because the "Historical Review,"I
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