USA > Pennsylvania > The history of Pennsylvania : from its discovery by Europeans, to the Declaration of Independence in 1776 > Part 7
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to pardon crimes, murder and treason excepted; to grant re- prieves in all cases until the pleasure of the king were known; to make ordinances (not affecting the persons or property of in- dividuals) in cases requiring a prompt remedy, when the free- men could not be conveniently assembled; to divide the pro- vince into towns, hundreds, and counties; to incorporate towns, boroughs, and cities; to erect manors; to constitute fairs and markets, ports and harbours, at which the officers of the king's customs were to have free admission; to levy duties on im- ports and exports, saving to the king such duties as should be laid by act of parliament; to alienate any part of the pro- vince, the purchasers to hold by soccage tenure immediately of him and not of the king. He was clothed with the pow- ers of captain-general, and authorized to levy troops, and to make war by sea and land against neighbouring barbarous nations, pirates, or robbers. He was required to keep an agent in or near London, to answer for any misdemeanor on his part, against the laws regulating trade and navigation; and, in case of such misdemeanor, if reparation were not made within one year, the king might seize and retain the government until compensation should be made. He was forbidden to hold correspondence with any power at war with England, or to make war against any nation in amity with her.
It was provided that the laws of England regulating pro- perty, defining crimes, and prescribing punishments, should continue in force, until altered by the provincial legislature ; and that duplicates of the colonial laws should be transmitted to the privy council, within five years after their enactment, and, if not disapproved within six months after delivery, that they should continue in force: that appeals from the de- crees of the courts in civil cases might be made to the king in council: that English subjects might freely transport them- selves to the province; and that the colonists might import every species of merchandise from England, and that they should confine their exports to England alone.
The king was restrained from imposing any tax or custom on the inhabitants, their lands, or goods, unless by the con-
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sent of the proprietary, or chief governor, or by the assembly, or by act of parliament in England.
In case twenty of the inhabitants should desire of the bishop of London to send a preacher to reside in the province, he was to be permitted to perform his functions without mo- lestation. And, lastly, if any difference should arise, con- cerning the meaning of the charter, it was to be construed in a manner most favourable to the proprietary.
The spirit of freedom, which breathes through this charter, is at variance with the character of its grantor, and with his policy towards the colony of Massachusetts; particularly in the independence of regal control permitted to the legislative power. The controversies which grew out of the loose and indigested charters of the New England provinces, occa- sioned, in framing this instrument, a greater care in defining the powers conceded, and preserving the supremacy of the parent state, than would, in other circumstances, have been bestowed upon it. It was originally draughted by Penn, from the charter of Maryland, framed by sir George Calvert, secre- tary of state to James the first, and was revised by the lord chief justice North, and the attorney-general, sir William Jones, who added two important clauses. The one saving to parliament the power to levy taxes, and generally to legis- late for the country; and the other requiring a copy of the colonial laws to be sent to England, for the approbation of the privy council; neither of these is found in the Maryland char- ter .*
The estate in the soil, granted to the proprietary, was a feudal, not an allodial one. It had the chief incident of the feudal system, forfeiture for want of heirs, and for corruption of blood; and Pennsylvania might be considered a feudal seignory, divested of the burdens of the feudal law, and strengthened by such powers of sovereignty, as the distance from the court of the paramount lord, and its peculiar cir-
* Chalmers. A clause in the Maryland charter provides, that the king, " his heirs, or successors, shall at no time set and make, or cause to be set, any imposition, custom, or taxation on the inhabitants of the province, for their lands, goods, tenements, or chattels, within the said province."
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cumstances required. The eighteenth section of the charter relieved the proprietor from the trammels of the statute of " Quia emptores," which directed that sub-tenants should hold of the chief lord by the same services as their feoffer; and it enabled him to grant estates, subject to such return as he judged proper.
The legislative authority, placed in the hands of the peo- ple, enabled them to secure their freedom and to promote their happiness; and evinced the progress which had been made in political science, since the miserable failures of the first Virginia settlements. Yet the reservations, which were perhaps indispensable to preserve colonial dependence, con- tained germs of oppression which might one day overshadow the prosperity of the new colony. Its trade was subject to be restrained or sacrificed to the interests of the mother coun- try, and the persons and property of the inhabitants were placed at the mercy of masters, whose distance from the pro- vince and ignorance of provincial affairs, rendered them inca- pable to judge of the resources or wants of the colonists.
The grant was declared to the inhabitants within its boun- daries, by the king's proclamation, dated the second of April, 1681, commanding them to pay due obedience to the proprietary, his heirs, assigns, and agents .* Soon after, Penn published an account of his province, with his charter and other documents connected with it, and invited purchasers, at the rate of forty shillings the hundred acres, subject to a quit rent of one shilling per annum for ever. Many persons from London, Liverpool, and Bristol, embarked in his enterprise, and an association, called the "Free traders' society of Penn- sylvania," purchased large tracts of land. Articles of agree- ment between the proprietary and the adventurers were formed, under the title of " Certain conditions or concessions, agreed upon by William Penn, proprietary and governor of the pro- vince of Pennsylvania, and those who are the adventurers and purchasers in the same province, the eleventh of July, 1681."t (1)
* Votes of Assembly, Introduction.
+ Proud. (1) See Note I, Appendix.
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This agreement consisted of twenty articles. The first ten provided for the survey of a city plot upon some proper site ; the apportionment of city lots to country purchasers ; the laying out of roads, and regulation of the country allot- ments; the assurance to purchasers of the full property of rivers, waters, water-courses, mines, and minerals, and for encouraging the search after gold and silver. The remain- der regulated the trade and intercourse between the settlers and the aborigines ; established the laws of England, in rela- tion to slanders, drunkenness, swearing, cursing, pride in ap- parel, trespasses, replevins, weights and measures; directed the planting of one acre of woodland for every five acres cleared ; provided for the preservation of oak for ships, and mulberries for silk; appointed a registry for vessels, with the names of the owners, and of the passengers and freights brought into the province; and required public notice to be given by all persons about to depart from the colony.
These preparatory arrangements having been satisfactorily made, two ships from London and one from Bristol, with many passengers, sailed for Pennsylvania. The Amity, one of the London ships, encountering adverse gales, was driven to the West Indies, and did not reach her place of destination until the spring of the following year. The other London vessel, the John and Sarah, first arrived, and was speedily followed by the Bristol Factor, which landed her passengers at the village of Upland, (Chester,) on the eleventh of De- cember; and the river having froze over that night, the pas- sengers remained there all winter. Although the emigrants arrived at the most unfavourable season of the year, they were exposed to little inconvenience. The prior settlers humanely and cheerfully administering to the wants of the adventurers. The population was at this time about two thousand souls, and there were six houses erected for public religious wor- ship; three by the Swedes; one at Christiana, one at Wicacoa, now Southwark, a suburb of Philadelphia, and one at Tinni- cum island : and three by the Quakers; one at Chester, another at Shackamaxon or Kensington, and another at the falls of the Delaware .* (1) +
* Proud. (1) Sce Note K, Appendix.
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The first emigrants, under Penn, conducted themselves with great prudence and circumspection. They were prin- cipally Quakers; temperate, industrious, and economical; well fitted to sustain the hardships of their new life, and to apply the means for removing them. Their success excited new adventurers. In the space of three years, above fifty vessels arrived, freighted with passengers; and so early as August, 1683, Penn estimated the population at above four thousand souls .* Such an influx of consumers to an unculti- vated country, under less prudent leaders, would have pro- duced much inconvenience from want of food. But with proper foresight, the colonists brought with them provisions sufficient for their maintainance, until they might reap the grain they should sow. Yet occasional scarcity of food ex- isted among the poorer or more improvident classes, and they acknowledged in the occasional flight of pigeons and the ac- çidental capture of deer, undoubted evidence of the Divine approbation. Their prudence was not confined to the supply of food only; houses, and a water-mill for grinding corn, were imported and immediately erected. The emigrants were chiefly English, Irish, Welsh, and German. The Welsh lo- cated themselves west of the Schuylkill river, and formed the townships of Merrion, Haverford, and Radnor. Whilst the Germans, seating themselves a few miles east of that river, and north of Philadelphia, laid the foundation of the flourishing village of Germantown.t
* Penn's letter to the society of free traders. Clarkson. Chalmers.
+ About the year 1683 a society was formed at Frankfort on the Main, Louisburg, Bremen, Lubec, and other places, who undertook in concert to send emigrants to Pennsylvania, and to open a trade with that country. This took place under the guidance of the licentiate Pastorius, from the free city of Windsheim, who carried over a number of Germans, and settled Germantown, in October, 1683. It was part of Springetsbury manor. It was incorporated by a patent from William Penn, executed in England in 1689, and lost its charter, for want of a due election of officers, none being found willing to serve, somewhere about 1704. It was first called Cresheim, from the native place of many of the original settlers. Watson's MSS. 1 Pennsylvania Register, ii. 280, 343. Ebeling Hist. Penn. Proud.
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But perhaps no cause contributed more to the happiness of the early settlers, than the conduct of the proprietary towards the Indians. The Dutch, and more especially the Swedes, had preserved with them the most friendly relations, and had derived great benefit from their good offices. Their favour- able disposition was improved by Penn upon all occasions. With the first vessels he sent out captain William Markham, his relation and deputy, to whom he joined other commis- sioners, authorized to confer with the aborigines on the pur- chase of land and a treaty of amity. He instructed his commissioners to conduct themselves with candour, justice, and humanity. He addressed to the Indians a letter, admi- rably adapted to the plainness of their understandings, which made a favourable and lasting impression, on their minds, of his sincerity. Declaring, that he and they were created by the same Deity, who had written his law upon all hearts, commanding them to love and aid each other, he deplored the unjust treatment they had suffered from European visit- ers, and protested his own disinterestedness and love of peace, and his wish to conciliate them by probity and kindness. He proposed that all differences which should arise between his people and them, should be adjusted by arbitrators mu- tually chosen; and, announcing his intention of speedily visit- ing them in person, he solicited their friendship for his com- missioners and friends, and requested their acceptance of his presents as testimonies of his benevolence.
In April, 1682, the proprietary published the "Frame of government and certain laws, agreed upon by himself and certain freemen of the province, to be submitted to the ap- probation of the first provincial council." By this frame, which was the first constitution of the colony, the government was established in the governor and freemen, in the form of a council and general assembly. The council consisted of se- venty-two members, divided into three classes, each class serving one year, so that there might be an annual succession of twenty-four members. No member was eligible for more than seven years out of eight. The governor had in council a treble vote. The executive authority was vested in a
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governor and council, who were exclusively authorized to ori- ginate and prepare all bills for the sanction of the assembly ; to designate sites for cities, ports, and market towns, and to `lay out roads and highways: they were charged with the care of the treasury, and punishment of malversation in its offi- cers; with the establishment and direction of public schools, and the encouragement of the arts and sciences.
For the better performance of its duties, the council was divided into four sections or committees. To the first, the " Committee of plantations," were assigned the location of cities, towns, and roads, and the determination of all suits and controversies relating to plantations; to the second, the " Committee of justice and safety," the superintendence of the peace, and the execution of the criminal laws; the third, the " Committee of trade and treasury," was empowered to regu- late all trade and commerce, according to law, to encourage manufactures and home productions, and to defray the pub- lic charge of the province ; and the fourth, called the " Com- mittee of manners, education, and arts," was charged with the supervision of public morals, and the guidance of youth in the paths of virtue and knowledge. Each section consisted of eighteen members, six of whom made a quorum, and a quorum of each section constituted an operative council.
The governor and council had power to establish courts of justice, and annually to appoint the judges, justices, and masters of the rolls. The sheriffs, coroners, and justices of the peace, were to be appointed yearly, by the governor alone, from a dual nomination made by the assembly. But, as the state of the province did not admit of quick rotation in office, the proprietary reserved to himself the appointment, in the first instance, of all officers, and directed that they should continue in office during good behaviour.
The first general assembly was to be composed of all the inhabitants: subsequently, the legislature was to consist of a number not' exceeding two hundred: but, when the popu- lation would justify it, might be increased to five hundred members. It was empowered to pass on all bills, by a vote
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of rejection or confirmation, or, when amendment was ne- cessary, to confer with the council. On all important sub- jects it was to vote by ballot. The term of session was unlimited, but the governor and council might convene or prorogue it at pleasure.
Should the governor at any time be a minor, having no guardian appointed by his father, the council was authorized to nominate three guardians, one of whom should preside as deputy governor, and, with the consent of the others, exercise the executive power.
The preamble to this constitution contains some apposite remarks on the nature of government; and, though tinctured with the colour of the proprietary's religious faith and evan- gelical enthusiasm, exhibits profound and philosophic views of this important subject. He considered government as an ordinance of God, to be religiously supported, and equally necessary to preserve the happiness of the virtuous, as to punish and amend the vicious; and that its true and legiti- mate object was the happiness of the people, which was to be attained by the free expression of the public will. He con- cluded a review of the relative excellence of the several spe- cies of governments, with the following comprehensive and unrivalled description of a free constitution. " Any govern- ment is free to the people under it (whatever be the frame) where the laws rule and the people are parties to those laws; and more than this is tyranny, oligarchy, and con- fusion."
Although the proprietary was the undoubted author of this preface, it must not be inferred that all the provisions of the constitution had his approbation. He was overruled in many particulars by his associates, who, Markham declares, " unless pleased, and granted whatever they wanted, would not have settled his country."* His penetration could not fail to discern, that the assembly was too numerous for the population of his colony, and was inefficient, from want of power to initiate bills; and that the council, armed with legis-
Markham's letter to governor Fletcher. Chalmers.
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lative, judicial, and executive power, was susceptible of being converted into an irresistible engine of oppression.
The laws which were annexed to the " frame of govern- ment," reflect honour on the legislator: some of them being of a political and fundamental character, might have been properly included in that instrument. Such were those de- fining the qualifications of freemen, prohibiting the levying of taxes unless by law, establishing the trial by jury, and se- curing universal toleration of religion. This code was re- vised and enlarged by the first assembly of the province.
South of the province lay the territories or counties on Delaware, stretching one hundred and fifty miles along the bay, to the Atlantic ocean. The possessor of this country, commanding the entrance and course of the river, would have power to harass the commerce, and in other respects to affect the welfare of the neighbouring colony. Penn was desirous to possess these territories, as well on account of the security they afforded, as of the advantages to be derived from a hardy and laborious population. The duke of York held them as an appendage to his government, and, though reluctant to cede them, he could not resist the solicitations of the proprietary .* He executed three deeds to Penn in Au- gust, 1682. The first, dated the twenty-first, releasing his right to the province; the others, dated the twenty-fourth, granting the town of Newcastle and the land lying within a circle of twelve miles about it; and the tract of land be- ginning at twelve miles south of Newcastle, and extending southward to Cape Henlopen. For the last tract, Penn cove- nanted to pay the duke and his heirs one-half of all the rents and profits received from it.t These grants conveyed to the proprietary a fee simple estate in the soil, but no political right whatever. Holding in soccage as of the duke's castle at New York, he owed fealty to, and was a subject of that government. Whether he ever obtained from the crown political powers over this country, is questionable. It is certain, that, when the right he assumed became the subject of controversy,
* Chalmers.
+ Introduc. votes of assembly. Proud, 102.
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among the inhabitants of the province and territories, no grant of this nature was exhibited. (1) These deeds were duly recorded in New York, and, by proclamation of the commander there, twenty-first November, 1782, to the ma- gistrates on the west side of the Delaware, the rights of Penn under them were publicly recognised .*
(1) See Note L, Appendix. * N. Y. Historical documents in secre- tary's office, Harrisburg.
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9
CHAPTER IV.
Arrival of the proprietary .... Takes possession of the terri- tories ···· Convokes an assembly .... Laws .... Union of the province and territories .... Act of naturalization ..... The great law ···· Remarks ···· Penn's dispute with lord Baltimore concerning boundaries .... Treaty with the Indians .... The city of Philadelphia surveyed ···· Allotments to purchasers ... Division of the country into counties .. .. Judiciary .... Return of the proprietary to Europe, and settlement of the govern- · ment preparatory thereto.
IN September, the proprietary, with many friends, chiefly from Sussex and of the society of Quakers, sailed for Penn- sylvania. The small-pox unfortunately broke out on board their vessel, and proved fatal to thirty of the passengers, nearly one-third of the number that had embarked. Penn landed at Newcastle on the twenty-fourth of October, after a passage of six weeks, and was received with great respect and every demonstration of pleasure. * (1)
He immediately assumed political authority over the terri- tories, and proceeded to establish his government, by sum- moning the magistrates and the people to the court-house, where he received formal possession of the country. He addressed the assembled multitude, explained his views in obtaining the province, expatiated on the nature of civil go- vernment generally, and particularly on that which he came to establish, promised them undisturbed enjoyment of civil and religious liberty, and recommending to them sobriety and peace, renewed the commissions of the magistrates. *
On the fourth of December, he convened an assembly, pur- suant to the constitution, at Chester, of which Nicholas Moore,
Clarkson. Proud.
(1) See Note M, Appendix.
1682]
HISTORY OF PENNSYLVANIA. 67
president of the society of free traders, was chosen speaker. During a 'session of three days, this legislature enacted three laws: 1. An act for the union of the province and territories: 2. An act of naturalization : 3. The great law, comprising a general system of jurisprudence.
1. The inhabitants of the territories, anxious to participate in the benefits of the provincial constitution, solicited to be incorporated with the province on the third day of the ses- sion, and a bill, prepared by the proprietary, was imme- diately offered and adopted .* This act should rather be con- sidered as confirmatory, than as the origin, of the union. For the freemen of the territories formed a part of the assembly, and acted with those of the province on all measures, from the commencement to the close of the ses- sion. As this measure strengthened the authority of Penn, so, in some degree, it legitimated his conduct. Tracing po- litical power to its only true source, the will of the people, he was ready to forget that no power to rule the territories was given to him by the deeds of feoffment from the duke of York; nor did he nicely scan the rights of the royal preroga- tive, infringed by himself and the people, over whom his power was thus established.
2. The "Act of union," alone, was not deemed sufficient to effect an entire amalgamation of the inhabitants of the pro- vince and territories. For, although, by the capitulation of the Dutch with colonel Nichols, in 1664,t and by the treaty between England and the States General, the inhabitants of the west border of the Delaware became English subjects, they were considered by Penn so far a distinct people, as to require an act of naturalization to make them citizens of his commonwealth. By such an act, the Dutch, Swedes, and Fins of the territories, entered into full possession of provincial rights. And, with jealousy and fear, inspired by their weakness, the house resolved that the future naturaliza- tion of foreigners should be made by special laws.}
* Votes.
+ Proud. # Votes.
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3. The great law, containing sixty-one chapters, was the work of the proprietary. He embraced in it most of the laws agreed upon, in England, and supplied such as the circum- stances and opinions of the colonists rendered necessary.
This code or system, for it is entitled to that character, comprehends the chief subjects of legislative attention, in a society without commerce or foreign connexions.
Religious toleration was secured in the amplest form to all who professed belief in the Deity. This section, which, by its liberality and eloquence, merits the admiration of posterity, declares that, "Almighty God being only Lord of conscience, Father of lights, and the author, as well as object, of all di- vine knowledge, faith, and worship; who can only enlighten the mind, and persuade and convince the understanding of people in due reverence to his sovereignty over the souls of mankind:" and, therefore, it enacts, " That no person, now or hereafter living in the province, who shall confess one Almighty God to be the creator, upholder, and ruler of the world, and professeth him or herself obliged in conscience to live peaceably and justly under the civil government, shall, in anywise, be molested or prejudiced for his or her conscien- tious persuasion or practice; nor shall he or she, at any time, be compelled to frequent or maintain any religious worship, place, or ministry, contrary to his or her mind, but shall freely and fully enjoy his or her liberty in that respect, with- out any interruption or reflection: and if any person shall abuse or deride any other, for his or her different persuasion or practice in religion, such shall be looked upon as a dis- turber of the peace, and be punished accordingly."
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