USA > Pennsylvania > The history of Pennsylvania : from its discovery by Europeans, to the Declaration of Independence in 1776 > Part 12
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1701]
of the proprietary, the custom was established, and continues to the present day .*
The examination of this question of surplusage, though attended with much vexation, proved of pecuniary advantage to the proprietary. An act of assembly was passed, direct- ing a re-survey of all located lands, at the expense of Wil- liam Penn, within two years; and large quantities of land were found included in former surveys, not covered by the warrants, for which he justly exacted payment. But this ex- action was, most unreasonably, considered by some of the te- nants as hard and oppressive.t
II. The pretension of the freeholders to a full participa- tion of the benefits, specially granted to the first purchasers, were not confined to the allowance for roads. The city lots, now rapidly increasing in value, were claimed as appendages to country purchases; and every holder of a farm demanded a city lot, of a size proportioned to the number of acres he possessed.
III. The inhabitants of the city of Philadelphia required that the vacant town lots should remain in common, and that no leases should be made, under which they might be en- closed, unless their respective owners were prepared to build upon, or otherwise improve them; and that the islands ad- jacent to the city might be free to all, to collect therefrom winter sustenance for their cattle. Whilst these extravagant claims were advanced by the freemen of the province, those of the territories asked that the price of lands in their coun- ties should not be raised, and that future grants should be made at the original quit-rents.
IV. In reserving the quit-rents, the proprietary intended not only to secure to himself a permanent revenue, but to preserve that connexion between the grantor and grantee which had been the soul of the feudal system, and which was still considered necessary, though all the incidents of that system, save fealty, escheat, and rent, frequently nomi- nal, had ceased. His quit-rents were originally one shilling
* Votes. 2 Sm. L. P.
+ Logan MSS. Am. Phil. Soc.
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the hundred acres, on lands granted to freemen, and six shil- lings the hundred on those granted to servants. They were subsequently advanced to one penny sterling per acre. The proprietary had once proposed to release these rents for a pecuniary consideration; his proposal was rejected; but now, feeling them onerous, the landholders were desirous to buy them off.
These attempts to control and confine him in the disposi- tion of his private estate, and to exact valuable privileges of a personal nature, without recompense, were firmly opposed by the proprietary. The right claimed to town lots, he held, to be confined, by virtue of the "concessions," to the first purchasers, who had already received more than a just pro- portion: he complained of the injury done to his city plots by the waste of timber; and holding them for the accom- modation of such as were not first purchasers, wishing to build upon them, he declined to throw them open for com- mon use; and the islands, he said, were detached from the town, if not from the province. He refused to release his quit-rents, lest, failing to receive a maintainance from the public, he should need them for his support. The pertinacity of the assembly, however, drew from him a reluctant assent to their requests, in relation to the vacant lots, and their common use was granted by the charter incorporating the city, subject to certain restrictions in regard to improvement .*
This charter, dated twenty-fifth of October, 1701, created the inhabitants of Philadelphia a body corporate, under the name and style of "The mayor and commonalty of the city of Philadelphia in the province of Pennsylvania." And by it all the city officers were appointed, including the mayor, recorder, aldermen, and common council.
The constitution, which had been under consideration for more than eighteen months, was finally adopted on the twenty- eighth of October, six parts in seven of the assembly having for- mally surrendered the previous charter granted by Penn. The new charter was as comprehensive on the subject of civil and
* Votes. City Charter, 1701.
e
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1701]
religious liberty as the former ones. Whilst it secured, by general provisions, the most important of human rights, it left minor subjects to be detailed and enforced by the laws.
The legislative power was vested in the governor and as- sembly.
The assembly was composed of four members from each county, annually elected. Their number might be increased by law. It was empowered to choose a speaker and other officers; to judge of the qualifications and election of its mem- bers; to sit upon its own adjournments ; to prepare bills, im- peach criminals, and redress grievances; and possessed all other powers and privileges of an assembly, according to the rights of the free-born subjects of England, and usual in any of the king's plantations in America. Two-thirds of the whole number formed a quorum.
The sheriffs were appointed by the governor, within three days after return made to him, from two persons, chosen by the freemen of each county; and, in default of such appoint- ment, the first person on the return was entitled to the office. The term of office was three years. Vacancies by death, or otherwise, were filled by the governor. Incumbents continued in office until their successors were elected.
A clerk of the peace for each county was nominated from three persons returned by the justices of the peace; and, if one of them were not commissioned within ten days, the highest on the list held the office.
There was no provision in the constitution relating to the establishment of the judiciary. That important branch of the government was left to the discretion of the legislature.
Nor was the council recognised as a part of the govern- ment, unless a prohibition to the governor and council to take cognizance of any complaint relating to property, except ap- peals should be allowed by law from the ordinary tribunals, may be considered as such recognition. The practice of try- ing causes relative to real estate, before the governor and council, as well those in which private citizens were parties, as those in which the proprietary was interested, had been continued. This made him a judge in his own cause, and was
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highly objectionable when the council was elected by the people; it became wholly inadmissible when that body be- came the mere creature of the governor.
By a supplementary article to the charter, the proprietary granted full permission to the province and territories to dis- solve their union at any time within three years from its date; and, in case of such dissolution, the provincial assembly was to be increased by the election of four additional members from each county.
The proprietary, in granting his assent to this charter, was swayed by his fears that the government would be re- sumed by the crown. He was willing, by the most liberal grant of political rights, to protect himself and his people from oppression by royal governors. Retaining the govern- ment, however, he subsequently felt and complained of the restrictions this charter imposed on the executive power, and often intimated an intention to attempt its revocation, in his correspondence with his secretary, Logan; but was deterred from so vain and odious a design by the arguments of that sagacious counsellor. He particularly regretted having given the assembly power to convene and adjourn at pleasure, and having assented to the separation of the province and terri- tories. In his negotiations with the crown for the sale of the government, he was much embarrassed by this charter. A due regard for consistency, and love of civil liberty, required that he should stipulate for the preservation of the charter, whilst the ministry insisted, that, with the executive power so limited, the government was scarce worth purchasing. The negotiation 'for sale was long protracted, and, at times, almost abandoned. When content with the course of affairs in the province, the proprietary prided himself on his deter- mination to preserve the principles of the charter; but, when vexed by the conduct of the assembly and popular leaders, and oppressed by poverty, he was often tempted to sell on any terms .*
By letters patent, under the great seal, he established a
* Logan MSS.
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council of state, composed of ten members, chiefly quakers, and his intimate friends, of whom four made a quorum; who were empowered "to consult and assist, with the best of their advice, the proprietary himself or his deputies, in all public affairs and matters relating to the government." And, in his absence, or on the death or incapacity of his deputy, they, or any five of them, were authorized to execute all the proprietary powers in the administration of the govern- ment. The members of the council were removable at the will of the governor, who might increase their number at pleasure .*
The proprietary was again much perplexed in the choice of a deputy. His selection of a stranger, in Blackwell, had proven unfortunate. In confidence, that one chosen by the assembly would preserve their love and respect, he offered them the nomination. But they declined, from modesty, or from inability to make a proper selection. His choice fell upon Andrew Hamilton, one of the proprietaries of East Jersey, and formerly governor of East and West Jersey. James Logan was appointed provincial secretary and clerk of the council. t
This officer, who was of a respectable and wealthy family, originally of Scotland, but last established in Ireland, ac- companied the proprietary on his present visit to the pro- vince. In him Penn had unbounded confidence. To his care he entrusted all his private and public affairs in the colony. He became chief commissioner of property, or agent in the purchase and sale of lands, receiver-general, member of council, president of council, and chief justice. During the life of William Penn, and the minority of his chil- dren, he managed, exclusively, the family interests in the province. The governors were respectively directed to conduct themselves by his counsels, and in proportion as they adhered to this instruction, their place was rendered easy so far as that depended on the proprietary family. If
* Names of the council .- Edward Shippen, John Guest, Samuel Car- penter, William Black, Thomas Story, Griffith Owen, Phineas l'emberton, Samuel Finney, Caleb Pusey, John Blunston. t Proud. Logan MSS.
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[1702
they disregarded his admonitions, they were removed. In a word, whilst others bore the proprietary's commission, the power which it should have conferred, was vested in Logan alone. Never was power and trust more safely be- stowed for the donor. The secretary faithfully devoted his time and his thoughts to promote the interests of his master, and bore with firmness, if not with cheerfulness, the odium which his unlimited devotion drew upon him- self .*
The administration of governor Hamilton was of short duration, and embittered by the disputes of the assembly. The representatives of the territories refused to meet those of the province at their October session; and the latter de- clared their intention to dissolve the union. The governor represented the effect which their dissentions would have upon the important question, relative to the proprietary go- vernments, then agitated in England: he urged the injury which would result to their commerce from the loss of the tobacco trade, the staple of the territories; and protested against the breach of the charter, by increasing the number of representatives before the stated day of election. These reasons induced the assembly to adjourn to the sixteenth of the next month. In the meantime, writs were issued for the election of members from the lower counties, who convened at Philadelphia, on the day to which the provincial mem- bers had adjourned, when the latter also assembled; but no persuasion could effect their union in one legislature. The territories contended they had not accepted the constitution, and that they were now met on the governor's writ; that by a union with the provincial members, elected under the charter, they would sanction that instrument, against the wishes of their constituents; and that, deriving their autho- rity from different sources, such an assembly would be an anomaly in legislation. The provincial members had abated somewhat of their desire to legislate alone; yet they were careful to preserve their dignity, by evincing little disposi -.
* Logan MSS.
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1702]
tion to conciliate, either the territorial members or the go- vernor. The latter dismissed both sets of representatives, but not until the provincialists had made a formal demand for a separation from the territories, and the increase of their own representatives, pursuant to the supplementary article of the constitution.
This separation was final. Governor Evans, in 1703, en- deavoured to effect a re-union. But the provincial assembly, through David Lloyd, their speaker, returned a mild and eva- sive answer to his address upon this subject, pleading their fears that a re-union would be unconstitutional, as there was no provision for such a measure to be found in the charter. To the territories, which had repented of their intractable- ness, Lloyd spoke undisguisedly. He reproached them with their former obstinacy, and declared that the interests of the province forbade a re-union, since the laws which should be enacted by a legislature, composed in part of representatives from a country not included in the charter to Penn, could not be valid by virtue of that charter .*
The proprietary, who had departed from Philadelphia the first of November, 1701, arrived in Portsmouth about the middle of December. His influence was sufficient to arrest the passage of the bill for converting the proprietary into royal governments; or, probably, it was merged in the pro- jects of a new reign. William III. died January 18th, 1702 and was succeeded by the princess Anne of Denmark, with whom Penn became a favourite.t His love of the court, and the effect with which the royal favour enabled him to serve his friends, had always kept him near the throne, whilst he could enjoy the smiles of the sovereign. His attachment to the infatuated and despotic James had involved him in suspi- cion and disgrace; but his devotion to the queen, to attend whom, he took lodgings at Kensington, gave him reputation, and power to serve his colony and his sect.
Although the bill for abolishing the proprietary govern- ments had failed, the disposition to make them more depend-
* Votes. Logan MSS. + Proud. Clarkson.
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ent upon the crown still existed, and manifested itself in an act of parliament, requiring the royal assent to the appoint- ment of deputy-governors. It was necessary, therefore, that the appointment of governor Hamilton should be confirmed by the crown. But a long interval elapsed before the assent of the queen was obtained. A party had grown up in the province, composed of members of the church of England, directed by colonel Quarry, judge of the admiralty, and John Moore, advocate of the admiralty and register-general under the proprietary, to whom was occasionally joined John Guest, the provincial chief justice. A church of this faith was opened in the year 1700, under the direction of Evan Evans, a cler- gyman, sent out by the bishop of London pursuant to the reservation in the royal charter. Beside the jealousy inci- dent to opposite religious principles, the church party had some important reasons for disliking a Quaker administra- tion. The war which prevailed between France and England, exposed the colonies to visits from the enemy, and a petty privateer might blockade the Delaware, destroy the trade of the province, and levy contributions on the inhabitants, whilst the pacific principles of the assembly prevented them from appropriating a shilling for defence. In the mother country all questions of civil and criminal jurisprudence were deter- mined under the dread solemnity of an oath; whilst in the province, property, nay, life itself, was passed upon by judges and jurors under a simple affirmation. If the Quakers, con- scientiously scrupulous in the use of arms and oaths, sought a government under which their scruples might be protected, the churchmen, with equal reason, pleaded that their consciences required, that they should defend their properties and lives, by arms, against open violence, and by oaths, against insidious fraud. To these promptings of conscience, political ambi- tion, inseparable from political freedom, was a powerful auxi- liary .*
The church party beheld with delight the disposition of the ministry to change the proprietary into royal govern- ments, and urged the unfitness of the Quakers to govern in seasons of war, as an especial reason for making this change
* Logan MSS.
.
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1703]
in Pennsylvania. They watched the administration with great vigilance, and exaggerated every matter which they considered offensive, in their reports to the queen. They delayed the confirmation of governor Hamilton, by accusing him of having been concerned in illicit trade; embarrassed his government in the territories, by suggestions, that without such confirmation he could not legally exercise gubernatorial power; and covertly fomented the disputes between the go- vernor and provincial assembly, in order that a state of gene- ral confusion might hasten the resolution of the crown to resume the government, or induce the proprietary to aban- don it. Their intrigues rendered it necessary that the pro- prietary should constantly reside at court, or employ an agent there to correct misrepresentation; and so far excited his in- dignation, that he directed governor Hamilton to remove Moore from all offices he might hold under him, and exerted himself successfully to procure the dismission of colonel Quarry, for a short period, from the admiralty. The place of the latter he procured for Roger Mompesson, who was at the same time constituted judge of the admiralty of New York and the Jersies, and appointed by Penn attorney-general of Pennsylvania. He had also a commission of chief justice of the province, which he proposed to exercise, in case the assembly would attach to that office a salary of not less than one hundred pounds per annum .*
Governor Hamilton endeavoured to provide for the defence of his province by the creation of a militia. One company was formed in Philadelphia, and others proposed in various parts of the province and territories. Of this first militia company of the province, George Lowther, a gentleman from Yorkshire, bred to the law, and subsequently proprietary attorney-general, was the first captain. The salary of go- vernor Hamilton, as fixed and paid by the proprietary, was two hundred pounds per annum, for the time of service be- fore confirmation by the queen, and three hundred pounds afterwards. He died at Amboy whilst on a visit to his family, who resided at that place, on the twentieth of April, 1703.1
* Logan MSS. + Ibid.
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[1703
By his death, the duties of his office devolved upon the council, of which Edward Shippen was president .* The people, approving the conduct of their representatives, in dissolving the union with the territories, returned eight mem- bers from each county to the assembly. But the house was obstructed in their legislative duties by the doubts entertained by the council of its own powers. In the commission from the proprietary, it could find no authority to join in the enact- ment of laws. After some delay, the house adjourned, having adopted a resolution declaratory of their rights under the new organization.
But their adjournment to a distant day did not escape the animadversion of the council, who wished to restrain the exer- cise of that right to adjournments from day to day, or at most to short periods. The right of the house " to sit upon their own adjournments" was unqualified. The construction given to it by the council rendered it useless, and was dictated by the conviction that, in its unlimited exercise, the prerogative of the governor to prorogue the assembly was invaded. To avoid the evil effects of a precedent, the council prorogued the assembly to the day to which it had adjourned.
* April.
CHAPTER VIII.
Appointment of governor Evans .... He attempts to re-unite the province and territories .... Addresses of the assembly to the queen .... Oaths required by order of council .... Bill for con- firming the charter .... Disputes between the governor and assembly .... The assembly address the proprietary, and treat him with great indecorum .... The province divided into two parties under Logan and Lloyd ···· Governor applies in vain to the assembly, for a copy of the address to proprietary .... Receives the proprietary's opinion of the provincial dis- putes ···· Assembly alarmed for their popularity ···· The pro- prietary party is inspirited ···· Biles, a member of the assem- bly, is prosecuted by the governor .... The house interfere .... The governor angrily prorogues the assembly ···· The as- sembly are intimidated and divided .... The proprietary party triumph in the election of a new assembly .... Labours of the assembly ···· Evans attempts to establish a militia ···· Devises a stratagem to test the principles of the Quakers ···· Con- duct of Logan .... Fort at Newcastle, and duty imposed for its support .... Becomes grievous to the province .... Enter- prise of Richard Hill and others .... The governor endeav- ours to prevail on the house to pass a militia bill .... Judi- ciary .... A new assembly favourable to the popular party .... Debates on the judiciary bill .... The governor threatens to establish courts by his ordinance .... Remonstrance of as- sembly ···· Conference ···· Governor takes offence at the man- ner of Lloyd .... The assembly take part with their speaker ... Lloyd's apology to the house .... The assembly impeach Lo- gan ···· Governor declines to try the impeachment ..... The assembly remonstrate with the proprietary on the conduct of Evans, Logan, and the grievances of the province. .. Con- tinuance of the disputes .... Provincial trade interrupted by
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privateers ···· Efforts of Evans to induce the assembly to de- fend the province .... Unwise proceedings of the assembly ... · Recall of Evans.
THE proprietary's choice of a successor to governor Hamil- ton fell on Mr. John Evans, a young man of six and twenty years of age, and of Welsh extraction. He was earnestly recommended to secretary Logan, under whose direction he had promised to place himself. He arrived in the province in February, and soon after increased the number of the coun- cil, calling to that board, with others, William Penn the younger, who had accompanied him to the province. Pur- suant to the instructions of the proprietary, he earnestly ap- plied himself to re-unite the province and territories; and his want of success in this measure, produced an unfavourable disposition towards the former, which embittered his whole administration. *
The assembly prepared two addresses to the queen, one, congratulatory upon her succession, was styled " the address of the freemen of the province of Pennsylvania in general assembly met;" and the other, having the official marks of the first, was entitled " the humble address of the people called Quakers, convened in assembly at Philadelphia." Both were passed on the same day, and were signed by Lloyd as speaker of the house, and are entered upon the minutes as acts of the assembly.t This has much the appearance of identifying Quakerism with the government, and declaring it the reli- gion of the province. The style and character of the latter address is the more extraordinary, as the Swedish and Dutch Lutherans were numerous, and the Episcopal church had already attained considerable importance; Mr. Evans having collected a large congregation, composed chiefly of " Friends," who had separated from the meeting. ¿ This singular address was occasioned by an order of the privy council of January, 1702, requiring all officers to take the oath or affirmation prescribed by the statute 7 and 8, William III .; and direct-
* Proud. Votes. Logan MSS.
+ Votes. # Holmes.
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ing that all persons willing to take an oath, in public and judicial proceedings, should be permitted so to do. The or- dinance was more tolerant than the statute, which did not admit the affirmation to be taken by persons in office ; still it bore hard upon the Quakers, to whom it was as grievous to administer, as to take an oath. Nor could the terms of the affirmation be acceptable, as they merely changed the form of the invocation of the Deity ; the statutory affirmation requir- ing the affirmant to declare the truth "in the presence of Almighty God." This ordinance was hostile to the most cherished principles of the constitutions of 1696 and 1701, and produced great confusion in the province, suspending the business of the courts, and disqualifying many of the judges. The object of the address of the assembly was to procure its revocation. In the mean time, presuming on the justice and reasonableness of their prayer, they proceeded to pass a bill, substituting affirmations for oaths in all cases; but the gover- nor refused to sanction it .*
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