USA > Pennsylvania > The history of Pennsylvania : from its discovery by Europeans, to the Declaration of Independence in 1776 > Part 48
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HAVING completed our history to the period at which Pennsylvania became independent of the parent state, we shall endeavour to present a concise view of her actual condi- tion at that time, in relation to her government, laws, religion, finance, commerce, manufactures, and literature.
I. In framing their governments, the colonists naturally looked for a model in the constitution of England, which they were disposed to copy so far as circumstances would permit. But their situation led them to regard the democratic
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portion of that constitution with the greatest favour; and when not restricted by their charters, or controlled by the royal prerogative, they succeeded in their endeavours to circum- scribe by narrow limits the powers of their governors. Hence in many of the provinces the royal power was faintly reflected by the king's lieutenants, or the proprietary depu- ties, and the councils of these officers, sometimes endow- ed with legislative rights, had little resemblance to the aristocratic branch of the British government. At three thou- sand miles distance from the throne, its splendours were those of boreal lights, pale, cold, and fanciful, having little influence on the bosoms and business of men. Compelled to rely upon their individual energies, the provincialists appreciated each other by their personal qualities, and contemned the preten- sions of mere rank and ostentation. Cut off from intimate association with the mother country, neither asking nor needing her assistance, they exercised their rights as in a state of nature, and in some cases actually formed that origi- nal compact which philosophers have fancied the basis of all political society.
Such was emphatically the constitution of Pennsylvania. It is true, she was rendered dependent upon England by those provisions of the royal charter, which reserved the power to repeal her laws, to revise her judicial decrees, and to regulate her trade. But these restrictions for many years bore lightly. Her efforts to promote the public happiness might be disap- proved, but not prohibited. If a successful experiment were discouraged by the veto of the king, the province did not forego its prosecution. The charter required the laws to be presented within five years from their enactment for the royal assent. But a convenient negligence sometimes allowed a great part of this time to elapse before presentation; and a happy oblivion occasionally prevented them from ever reach- ing the royal council. If, when examined, they were dis- allowed, a modification in some unimportant particular afforded sufficient reason for their re-enactment. The laws forbidding exportation of colonial productions to foreign countries were
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hen rarely enforced, and the colony for two-thirds of a century suffered little actual restraint on its export trade.
Save the restrictions of which we have spoken, the royal charter gave unlimited power to the people for self-govern- ment; authorizing " any laws whatsoever for the raising of money for public uses, or for any other end, appertaining either unto the public state, peace or safety of the country, or unto the private utility of particular persons." Under this broad authority the several provincial constitutions of 1681, 1683, 1696, and 1701, were framed. These were termed " charters of privileges granted by the proprietary;" but were, in fact, supreme and fundamental laws, framed by the consent, and with the assistance of the people. The charter of 1701 lodged the legislative power in the assembly and go- vernor, or his lieutenant: In the absence of the governor-in- chief, his whole authority devolved upon his substitute. For some years the proprietary claimed to have a voice in legisla- tion, whilst absent from the province; and he instructed his representatives to pass no laws without his assent. This was considered by the people as unconstitutional and oppressive, and was, after repeated struggles, abandoned. But the right to restrain their deputies by general instructions was perti- naciously retained by the proprietaries during the continuance of their power, though opposed by the popular voice, and finally producing an earnest effort to abolish the proprietary government. With other executive powers, the deputy pos- sessed that of appointing to office, and of removing at plea- sure, even such officers as were directly appointed by the proprietaries. Of the latter, the case of secretary Logan was a signal instance. William Penn occasionally nominated persons to office when represented by a resident deputy, and directed his appointments to be confirmed under the great seal. After his death, I find no instance of such exercise of proprietary power except in the commissions to Logan.
The right to originate bills belonged to the assembly alone. The governor might recommend such measures as he deemed proper, and might amend or reject bills sent for his approba- tion. His council, not recognised by the charter of 1701, 69
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had no distinct voice in the government. It was the creature of his pleasure, composed of such persons as he chose to select for his advisers. During the life of William Penn, and his immediate successors, the deputy-governors were directed to follow the recommendations of the council, consisting of the personal friends of William Penn, or of such as were devoted to the interests of the family. Sir William Keith was the first, and perhaps the only governor who openly resisted this subjection.
Before the purchase of Penn, proper and convenient courts were established on the western shore of the Delaware, from which, in important cases, an appeal lay to the governor in council at New York. By the "frame of government" adopted in England in 1782, the governor and council were empowered to erect, from time to time, standing courts of justice, in such places and numbers as they should judge con- venient; and the governor was authorized to appoint the judges annually from a dual list presented by the councils. But no courts were established under this power, the pro- prietor having reserved to himself the first appointments of all officers. By that charter the council might try impeachments presented by. the assembly; they assumed, however, in many instances, other judicial authority. This irregularity is ex- tenuated by the consideration, that it was impracticable in that stage of the province, to preserve a proper division of the political powers. By the emendation of the "frame" in 1683, the right of appointing the judges and other officers was reserved to William Penn during his life; but his successors, with the council, were empowered to erect courts, and ap- point judges, in the manner provided by the original consti- tution of 1682. But this power of the council was recognised neither by the charter of 1696, nor by that of 1701.
It was in the power of the assembly at all times to establish the judicature by law, and many contentions arose from their attempts at this object. The great law created the first courts of the province, which were remodelled after the adoption of the charter of 1701, by an act prepared by David Lloyd. This act was repealed by the king in council, probably at the
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instance of William Penn, on the suggestion of secretary Logan, that he might erect courts by his proprietary power, or obtain the passage of a law more consonant with his wishes and interests .* And the governor and assembly differing widely in their opinions on this subject, the courts were opened under an ordinance of the former, by which they were continued until the year 1710, when they were esta- blished by a law sanctioned by governor Gookin.
This act erected a supreme court, with law and equity sides; courts of common pleas also, with legal and equitable jurisdiction, and courts of quarter sessions, holden by the justices, or any three of them, in the several counties; orphans' courts for protecting the interests of minors, and regulating the affairs of decedents, which had been early established, were new modelled by act of 1712. Courts of oyer and ter- miner, for the trial of felonies of death, were occasionally holden under commissioners specially constituted. The act of 1710 having been repealed by the king, was supplied by three acts passed in 1715; which, being also repealed in 1719, were followed by the act of 1722, laying permanently the foundations of the colonial judiciary.
By the last act, and the supplement of May, 1767, the equity jurisdiction of the supreme court, and courts of com- mon pleas, was discontinued. The supreme court, consisting of four judges, one of whom was distinguished in his com- mission by the name of chief justice, and any two of whom might hold the court, was empowered to hold two sessions in bank annually, in the city of Philadelphia; to issue writs of habeas corpus, certiorari, and writs of error, and all re- medial and other writs and process, grantable by virtue of their office. It had appellate jurisdiction over all the inferior courts, in criminal, and in civil cases above fifty pounds in value, and was authorized to administer justice and exercise the powers granted, as fully as the courts of king's bench, common pleas, and exchequer at Westminster might do. The judges were required to go the circuit of the several
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counties twice a year, if necessary, to try the issues in fact depending therein, and the circuit courts might be holden by one judge. They were empowered to hold courts of oyer and terminer from time to time. The prothonotary of this court was commissioned by the governor, on the recom- mendation of the judges, but the prothonotaries and clerks of the other courts were appointed at the pleasure of the go- vernor.
The courts of quarter sessions were holden by the justices of the peace of the respective counties; but the courts of com- mon pleas, by judges specially commissioned for that purpose, usually selected from the justices, three of whom were of the quorum.
The act of 1722 was confirmed by an act passed in 1727, except that the supreme court was forbidden to issue process, unless in criminal cases. The latter act was, soon after its enactment, repealed by the king in council.
Appeals were allowed from the supreme and admiralty courts to the king in council, by the act of twenty-eighth of May, 1715, on recognisance given to prosecute the same with effect within eighteen months.
A vice-admiralty court was established in the province by the authority of the crown, for the province of Pennsylva- nia, and the counties of Newcastle, Kent, and Sussex; and a court of admiralty having jurisdiction, in cases of appeals, from the provinces of New York, New Jersey, Pennsylva- nia, Maryland, and Virginia.
The disposition of the lands of the province, and the admi- nistration of the land-office, though appertaining to the estate of the proprietaries, were so much interwoven with the public and political relations of the colony, that they demand our attention in a political survey.
It is to be regretted that some general and accurate system for the location of lands had not been adopted at the settle- ment of the province, and undeviatingly continued, thereby avoiding that intricacy in Pennsylvania titles, which has been detrimental to the increase of her population. Unfor-
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tunately, no system whatever can be traced in the records of the land office.
By force of the royal charter, William Penn and his suc- cessors became undoubted lords of the soil, subject to the duty of extinguishing the Indian title, which justice, hu- manity, and their contract with their vendees, imposed upon them. They had the right to dispose of lands in such man- ner, and at such price, as they deemed proper; and the offi- cers of the land office were their agents, controllable by their will. The contract with the first purchasers in some degree qualified this power. Wherever they desired to " sit toge- ther," and their quantity of land amounted to five thousand acres, they might cast their lot or township together; and the appropriation of lands by William Penn, for his proper use, was confined to the reservation, by lot, of ten thousand acres in every hundred thousand, the residue being open to the choice of purchasers. But these qualifications were in favour of the first purchasers only. Subsequently, the proprietary might withdraw from the general mass any lands not pre- viously appropriated to individuals; and his surveyors were instructed to locate for him five hundred acres, in every town- ship of five thousand, in addition to the proprietary tenth of all lands laid out.
The landed interests were confided to " commissioners of the land office," a secretary, receiver-general, auditor-general, and surveyor-general. The commissioners were authorized, from time to time, to purchase lands from the Indians-to grant lands for such sums and quit-rents as they should deem reasonable-to sell such lands as, on a re-survey, were found intervening, concealed, vacant, or surplus-to erect ma- nors, with jurisdictions thereunto annexed. There is no regular account of the grant of lands made prior to the year 1700. Between that time and the year 1767, their number is stated to have been about seven thousand. The usual mode of grant before 1700, was by lease and release of unlo- cated quantities, to be afterwards surveyed. These deeds were not always recorded .*
* Statement of J. Penn on minutes of council.
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The commissioners declined to exercise their power of erecting manors. Nor were manors, technically speaking, ever erected in the province; but this name was given to the proprietary tenths, and other large surveys made for their use. It is not probable that manorial courts and cus- toms would have been tolerated by the people.
Generally, all lands were subject to quit-rents, originally reserved to compensate the proprietary for his extraordinary charge in the administration of the government, or, as Wil- liam Penn subsequently declared, for his maintainance, in case he should fail to receive a public support. The amount of this rent was various. The first purchasers paid one shil- ling sterling per hundred acres; and lands taken up by, or for, servants, paid four shillings per hundred. Sometimes the rent was a bushel of wheat, or one shilling sterling per hun- dred acres, which was termed the common rent; but a subse- quent and most usual rent was simply one penny sterling the acre.
Inchoate titles to lands were obtained, by procuring from the land office a warrant, authorizing the survey of a desig- nated quantity; by settlement and improvement, whence grew the right of pre-emption; by license, when the peopling of some particular spot was deemed particularly advantageous; or by application for particular lands entered in the books of the land office. When lands were settled and improved, as was the case in a multitude of instances, the improver applied for a warrant for a certain quantity, including his improve- ment. On payment of two-thirds of the purchase money, a warrant was made out by the secretary of the land office, under the seal of the office, and signed by the commissioner of property, which being recorded in the surveyor-gene- ral's office, a copy was sent to a deputy-surveyor, with or- ders to make a survey. When the survey was made, a draft was returned into the surveyor-general's office, and a certificate entered in the secretary's office; and, upon payment of the remainder of the purchase money, with interest and arrearages of quit-rent, a patent was issued by
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the secretary, under the great seal, signed by the commis- sioners. When a purchase was intended of uncultivated lands, an application was made to the secretary, by filing the location, descriptive of the lands, and their situation, which was numbered in the order of the entry. These descriptions, as in the case of warrants, were sent to the surveyor-general's office, whence orders for survey were issued. On returns to these orders, warrants issued from the secretary's office to the surveyor-general, to accept the survey, and certify it to the secretary, who, on payment of the purchase money, granted the patent. In addition to these modes of obtaining titles, every indication of the assent of the proprietaries or their agents to the occupation of lands, gave an equitable right. The uncertain evidences of property, arising from the want of deeds, and registry of claims, occasioned much liti- gation, and was productive of extensive frauds on the pro- prietaries, to avoid the payment of interest, or obtain a dimi- nution in the price, when its fluctuation would benefit the purchaser.
The price of lands varied with times and circumstances. Before 1713, the common price was five pounds the hun- dred acres, and a bushel of wheat, or one shilling sterling, quit-rent. In 1713 it advanced to seven pounds ten shil- lings. From 1712 to 1715, lands at Oley and Conestoga were sold at ten pounds, and in 1730 at fifteen pounds the hundred; and in some cases at a still higher rate. From 1732, the price was more uniform and steady, at fifteen pounds ten shillings the hundred, and a half penny sterling per acre rent, which continued till the year 1768, excepting a variation about and between the years 1761 and 1763, when warrants were issued at nine pounds the hundred; but the quit-rents were increased to one penny sterling the acre. After 1768, lands obtained from the Indians by the treaty of that year were offered at five pounds per hundred, and one penny per acre per annum quit-rent.
If we include the land office in the political constitution of the colony, the officers of the government consisted of the governor and council, the secretary of the province, who was
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ordinarily the clerk of the council, the provincial treasurer, attorney-general, register-general, master of the rolls; the speaker and clerk of the assembly, and agent for the province in Great Britain; the judges of the supreme court, and the judges of the courts of common pleas and quarter sessions, and of the orphans' court; the prothonotaries and clerks of courts, and clerks of the peace; the justices of the peace and officers of inspection; the secretary of the land office; receiver- general and keeper of the great seal; auditor-general and surveyor-general; sheriffs and coroners, elected triennially in the respective counties, and commissioned by the governor from a dual return ; two county commissioners for each coun- ty, chosen for three years; and six assessors, chosen annually, to estimate, assess, and collect the necessary sums for county purposes, which the commissioners were authorized to dis- burse according to law; and county treasurers, appointed by the commissioners and assessors. The counties were divided into townships, in each of which the people annually elected one overseer of the highways, who was charged with the repairs of the township roads, and with the levying of the necessary funds therefor; in each township also two overseers of the poor were annually appointed by the magistrates, who were authorized to provide for the poor, and to raise, by tax, the necessary sums for their support.
II. As British subjects, the colonists claimed the laws of England, so far as they were adapted to their circumstances, as their birth-right. The royal charter provided, that " the laws for regulating and governing of property, for the descent and enjoyment of lands, for the enjoyment and succession of goods and chattels, and likewise as to felonies, should con- tinue the same as they should be for the time being by the general course of the law of England, until they were altered by the proprietary and freemen." The power of legislation was therefore almost unlimited. The vague restriction inserted in the charter, that the laws should be " not repugnant, nor contrary, but (so far as conveniently may be,) agreeable with the laws of England," was scarce felt; and certainly was not deemed of much force, since the first laws adopted by the
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colony differed widely from those of the parent state. The adaptation of the laws of England to the exigencies of the colony, was a work of slow and uncertain labour. It is an incident of the common law, from its plastic and mutable na- ture, that the courts charged with its administration should possess extensive legislative power. In a new colony the courts were required to decide in almost every case, whether the law upon which its adjudication was claimed, was suitable to the condition of the province. Hence, the ordinary legis- lative power of the courts was necessarily greatly enlarged, and a distressing uncertainty as to the law must have pre- vailed, since the law which governed the case was first de- clared after the case was made.
In the concise review, which we propose of the laws of the province, we shall follow their usual division unto such as relate to persons, to things, and to actions; reserving for sepa- rate consideration those which regard crimes and their pun- ishment.
Persons are commonly divided into natural and artificial, or bodies corporate. Natural persons were either subjects or aliens. The latter were converted into subjects by naturali- zation, by modes which varied at different periods. By the charters of 1683 and 1696, lands purchased by alien in- habitants of the province, dying before naturalization, passed to their wives and children, as in the case of subjects. But this provision was not continued by the charter of 1701, nor supplied by law before the revolution. An act of naturalization was among the first laws of the province. It extended the . rights of subjects to " all strangers and foreigners living with- in the province, holding land in fee according to the law of a freeman, who should solemnly promise, in their respective county courts, within three months from the passage of the act, upon record, faith and allegiance to the king, and full obedience to the proprietary." It provided also, " that when at any time any foreigner should make his request to the pro- prietary and governor for such freedom, he might be admitted on the conditions above expressed, paying on his admission twenty shillings sterling." This act remained in force until
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1700, when it was repealed, among other laws at that period, but was supplied by another act of like tenor, which was also repealed in 1705. In 1691, sixty-four of the first inhabitants of Germantown were naturalized by the existing law, but the same persons were also included in a special act of naturaliza- tion passed in 1708. From 1705 to 1740, there appears to have been no general provision on this subject; but special acts were passed from time to time naturalizing the persons named in them. In 1740 a uniform rule of naturalization was introduced into the colonies by act of parliament, de- claring that all persons born out of the legiance of the king, residing seven years in a colony, taking the oaths, (or in case of a Quaker, an affirmation,) of fidelity and abjuration, mak- ing a profession of christian faith before a judge of the colony, should be taken as natural born subjects. This act of par- liament provided for the conscientious scruples, in relation to oaths, of the Quakers only, but its benefits were extended to others having like scruples, in Pennsylvania, by an act of assembly passed in 1742. . The act of parliament removed the anomaly which existed before its passage, of persons enti- tled, in some part of the British possessions, to the full rights of subjects, whilst in others they were deemed foreigners. Thus, before the passage of the act, a German, enjoying the rights of a freeman in Pennsylvania, eligible to every kind of office, and entitled to the same privileges in trade as a natural born subject, would be deprived of all these, by removing to England, or even to a neighbouring colony. For though the power of naturalization exercised by the colonial government was unchecked, whilst it conferred the right of colonial free- dom only; the acts pretending to grant the rights of natural born subjects of Great Britain were immediately repealed by the king in council.
Natural persons were again divisable into freemen and slaves. Slavery was tolerated, but neverencouraged in Penn- sylvania. The protest of the German Quakers of Cresheim, and the reprobation of the practice by the Society of Friends, produced an early aversion to the slave trade, and reluctance to hold slaves. A duty was imposed on their importation
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