USA > Pennsylvania > The history of Pennsylvania : from its discovery by Europeans, to the Declaration of Independence in 1776 > Part 8
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But, though all religions were thus protected, the profes- sion of the Christian faith was made a necessary qualification for office.
The people were commanded to abstain from their com- mon toil and labour on the first day of the week, or Lord's day, for the ease of the creation, the study of the scriptures, and attendance on Christian worship.
Swearing, cursing, and blasphemy, were punished by fine and imprisonment.
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Personal liberty was strictly guarded. No arrest was per- mitted in civil cases, unless the defendant were about to de- part the province; and in criminal cases, the accused were bailable, unless the offence were capital, and the presumption of guilt violent.
The judiciary power was vested in a supreme court, sitting quarterly; a court of common pleas, held monthly ; and a court of quarter sessions and jail delivery.
Real estate was made devisable, by will with two wit- nesses. In cases of intestacy, it was distributed among the children of the decedent. It was subjected to the payment of debts, when the debtor died without issue ; if he left issue, one-half only was liable to execution, and that, only in case the land were purchased after the debts were contracted. *
All conveyances of real estate, other than leases for a year, and all bills, bonds, and specialties for more than five pounds value, and of longer date than three months, were declared void, unless registered within two months from the making thereof, if made within the province; if made out of the province, unless registered within six months.
A public registry was established for births, marriages, burials, wills, the names of guardians and trustees, and for letters of administration.
Oaths were abolished, and the penalty of perjury was af- fixed to a false affirmation. Two witnesses were required to maintain an issue in all cases, civil and criminal.
To encourage commerce, factors and agents wronging their employers were compellable to make restitution, and to pay additionally one-third of the sum converted; and, in case of the death of such factor or agent, the committee of trade was authorized to seize so much of his estate as would satisfy the claims of his employers.
All persons paying taxes might elect or be elected; and the purity of election was guarded by punishments enacted against bribery.
* By the provincial laws, under Andross, both personal and real estates, without exception or limitation, were subject to be sold for debt. N. Y. historical documents, in secretary's office at Harrisburg.
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Murder was punishable by death; manslaughter and chance- medley in such manner as circumstances should require; arson by a double satisfaction to the injured party, one year's im- prisonment at hard labour, and such corporal punishment as the justices should direct: burglary by fourfold restitution, and three months' imprisonment at hard labour; and, for want of means to make restitution, imprisonment for seven years.
Assaulting or menacing a parent was punishable by im- prisonment at hard labour during the parent's pleasure ; as- saulting or menacing a magistrate, by fine and one month's imprisonment; assaulting or menacing a master or mistress, by fine and imprisonment at the discretion of two justices of the peace.
Speaking slightly of, or abusive carriage towards, any ma- gistrate or person in office, was punishable by fine, not less than twenty shillings, or imprisonment at hard labour, for a term not less than ten days: sedition and libel by a fine, not less than twenty shillings : scandalous and malicious report- ers, and defamers and spreaders of false news, at discretion.
Marriage was made a civil contract, to be entered into with consent of parents or guardians, (after a certificate given by credible persons that the parties had no pre-engagement, and after publication of the intention of such parties,) before wit- nesses.
Adultery was punished by public whipping, and imprison- ment at hard labour for one year, for the first offence, and, for the second, divorce and imprisonment for life: incest by the forfeiture of half the estate of the criminal, and imprison- ment for a year; for the second offence, imprisonment for life : rape, by the forfeiture of one-third of the criminal's estate, to the parent, if a maid was violated ; if she had no pa- rent, then to herself; if a widow, to her; and, if a wife, to the husband ; and by whipping and imprisonment at hard labour for a year; for the second offence, imprisonment for life: incontinence between unmarried persons, by three months' imprisonment at hard labour, and the marriage of the parties: the speaking of unclean and obscene words, by
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the fine of one shilling and sitting in the stocks: bigamy, by imprisonment for life.
Drunkenness, encouragement of drunkenness, drinking or pledging of healths, were chastised by fine and imprisonment.
Stage plays, masks, revels, bull-baits, and cock-fighting, in- duced ten days' imprisonment at hard labour, or a fine of twenty shillings; playing at cards, dice, lotteries, and such enticing and evil sports, five days' imprisonment, or a fine of five shillings.
All prisons were declared to be work-houses for felons, thieves, and vagrants, and every person wrongfully impri- soned, was entitled to double damages against the informer or prosecutor.
These laws were to be printed and published, and taught in the schools of the province and territories.
This code had many faults, but it had also many excel- lencies. The offences prohibited were not accurately defined, nor their punishments sufficiently ascertained. Too much was left in the power of the magistrate, in whose integrity only the offender was secure from oppression. The proprie- tary legislated too much. He descended into the privacies of life, and attempted to regulate the minor morals, which may be safely left to the good sense of society for correc- tion. He, with his sect, had drank deeply of the puritanical . spirit, which drew its jurisprudence from the Old Testament, and proscribed harmless amusements because they were sus- ceptible of abuse. But he resisted, with masterly force, the penalty which that spirit, both in England and America, had affixed to the breach of the law. We cannot read the New England code of 1641 without horror .* Its lines are written in blood, and vengeance stalks over every page. The amend- ment of an offender, and the restoration of a misguided wretch to society, was never conceived by its framers. The object of punishment is two-fold; terror to the evil disposed, and the reclamation of the criminal. To the latter, the religion and humanity of Penn drew his special attention; and the law which converted the prisons into work-houses, was the
* Col. Mass. Ilist. Soc. vol. 6.
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germ from which the present mild and wholesome system of criminal jurisprudence of Pennsylvania has arisen. Even the punishment of death, awarded to the murderer, the only case in which it is inflicted by this code, is based on the mis- taken supposition that the Jewish municipal law was pre- scribed by the Deity to the whole human race.
No one of these laws displays more wisdom than that re- gulating the descent of real estates. The rejection of the right of primogeniture, and the introduction of the principles of the civil law, were just and politic. The basis of political liberty is equal rights; and these are intimately connected with the frequent interchange of property. The division of the father's acquisitions among his offspring effectually pre- vents the perpetuity and overgrowth of riches in the same family. The accumulations of avarice and ambition are scat- tered by the hand of death, and no longer afford the means, nor encourage the disposition, to acquire illegitimate power. The law guides the conscience, where its power is not abso- lute; and the pleadings of parental affection are heard at the making of a will, against the suggestions of pride and the de- lusions of vanity.
The small portion of time consumed in the enactment of so many laws affords striking evidence of the harmony that prevailed in this assembly, and of its devotion to the pro- prietary. The Swedes were much touched by his benevo- lence and wisdom, and deputed Lacy Cocke, a distinguished person of their nation, to express their gratitude, and their de- termination "to love, serve, and obey him with all they pos- sessed."*
The care and labour which the proprietary employed to have the boundaries between himself and lord Baltimore, conclusively and satisfactorily settled, proved abortive. The latter set up claims altogether inconsistent with the Pennsyl- vania charter, and the title to the territories derived from the duke of York, and gave much disquiet to the border colonists. With the design of amicably arranging their disputes, Penn visited lord Baltimore immediately after the adjournment of
* Proud.
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the assembly. But not being able to effect this, after a con- ference of two days, during which he was entertained with great politeness and hospitality, he consented to postpone the ne- gotiation until the succeeding spring. He, however, spent some time in Maryland, in religious visits, and in cultivating the friendship of the inhabitants; and, with the same view, he, about this time, visited New York .*
This question of boundary was vexatious and of long con- tinuance, and was not treated by lord Baltimore with that delicacy and forbearance which characterized William Penn. For Baltimore would not delay the exercise of the rights which he claimed, until inquiry should be made into their legality; but, by proclamation, offered lands in the territories for sale, at half the price demanded for those unquestionably within his own patent;t and in the following year, he used force to dispossess several persons, who refused to acknowledge / his title, and threatened others who would not pay him quit- rent .¿ The claims of Baltimore were not without colour. Maryland was granted to Cecilius Calvert, lord Baltimore, by patent, dated June 20th, 1632, and was now held by his son Charles. The charter, in the description of the northern boundaries, had the following clause, "unto that part of Delaware bay on the north, which lics under the fortieth degree of northern latitude;" but it had also a clause, re- stricting the grantee to the occupation of such lands as had not been previously settled by European nations. Penn's charter included the country from the " beginning of the for- tieth degree of north latitude," and, of course, from the end of the thirty-ninth degree. The words " under the fortieth degree," gave to Baltimore, as he supposed, a right to the lands up to the beginning of the forty-first degree. To this construction, Penn opposed the restricting clause in the Ma- ryland charter, and averred that the territories had been set- tled by Europeans in 1627, five years before the date of that grant. He also endeavoured to restrain the degree in Balti-
* Proud. + Balt. Proclam. 15th May, 1683. Penn's Letter to Com. of Plantations, 14th June, 1683. # Proud.
10
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more's grant to sixty miles, alleging that to be the mode of computation at the time it was given .*
The proprietary had a deep interest in this contest. Should Baltimore prevail, he would be deprived of one degree by five, equal to twenty-four thousand one hundred and sixteen square miles. But this possible curtailment of his province did not affect him so deeply as the prospective loss of ports and commercial advantages upon the Chesapeake, which he supposed to be included in his charter.t During his life, how- ever, no effectual means were adopted for terminating the dispute. In 1732, his heirs and lord Baltimore entered into an agreement, by which nearly one-half of the Delaware peninsula, north and west of Cape Henlopen, was assigned to the former, and the southern boundary of the province was fixed on that parallel of latitude which is fifteen miles south of the most southern parts of the city of Philadelphia. But the performance of this agreement was procrastinated by Baltimore, under various pretexts, and the proprietaries were driven, in 1735, to the English court of chancery for relief. In 1750, lord chancellor Hardwicke decreed specific performance, and determined several questions which had arisen out of the agreement during the controversy.(1)} But the Maryland proprietary contrived also to delay the exe- cution of this decree. A supplementary bill was filed, pend- ing which Frederick, lord Baltimore, in 1760, made a new agreement, explanatory of the last. The line, pursuant to these agreements, was run, in 1761, the distance of two hun- dred and thirty miles.
Markham, soon after his arrival, had purchased of the In- dians an inconsiderable quantity of land on either side of the falls of the Delaware.§ Penn, desirous to make further pur- chases, and to foster the friendship which the aboriginesalready entertained for him, invited them to a conference at Coaquan- nock, or Coaquenaku, the site on which Philadelphia is now erected. But, from some unknown and now unimportant cause,
* Ibid. Douglass. + Proud. (1) See Note N, Appendix. + Vez. Rep. 455. § Sm. Laws Penn. 110.
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they assembled at Shackamaxon, now Kensington. * Here, on the bank of the Delaware, stood an elm tree of prodigious size.(1) Beneath its widely spreading branches, the proprietary re- ceived the congregated sachems and their people. Dressed in the plain habit of his sect, without troops, without arms, or the usual insignia of power, he confided himself unhesi- tatingly to lawless savages, on whose forests he had made great and permanent inroads. He was distinguished from the Friends that surrounded him by a sky-blue sash of net- work about his waist; on his right hand stood colonel Mark- ham, his relation and secretary; on his left, his friend Pearson, who had accompanied him from England; behind him fol- lowed a train of Quakers; before him were borne various ar- ticles of merchandise, intended as presents to the Indians, and payment of his purchases. He held in his hand a roll of parchment, containing the confirmation of the treaty of purchase and amity.t
The Indians assembled in great numbers. When seen through the woods, as far as the eye could discern, painted and armed, fears for their own safety unconsciously stole over the unarmed Europeans, whose only shield was the justice of their intentions. The chief sachem, advancing before his warriors, placed on his head a chaplet crowned with a small horn, the emblem of royal power, and of religious and invio- Jable peace. At this signal, the Indians cast their bows and arrows to the earth, seated themselves around their chiefs in' the form of a half moon, and waited in respectful silence the progress of the conference. The leaders then announced to the proprietary, through an interpreter, their readiness to hear him .¿
Penn addressed them in a short and judicious speech. " The Great Spirit," he said, " who ruled the heavens and the earth, the Father of all men, bore witness to the sincerity of his wishes to dwell with them in peace and friendship, and to serve them with all his power. Himself and followers had met them unarmed, because their religion forbade the use of hostile weapons against their fellow creatures: they came not
* December 14th, 1682. Mem. Penn. Hist. Soc. 1 vol. 323.
(1) See Note O, Appendix. + Clarkson.
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to injure others, that was offensive to the Great Spirit, but to do good, in which he delighted: having met in the broad pathway of truth and benevolence, they ought to disdain de- ception, and to regulate their conduct by candour, fraternity, and love." Unrolling the parchment, he explained the arti- cles of the treaty and terms of purchase. "By these," he continued, " they were protected in their lawful pursuits, even in the lands they had alienated. Their right to im- prove their plantations and to procure subsistence would be, in all respects, similar to that of the English. 'Should dis- putes unfortunately arise between the two people, they should be adjusted by a jury, composed of equal numbers of Indians and Englishmen." From the merchandise before him, he then paid for the land, and made them many presents. Lay- ing the roll of parchment upon the earth, he bade them ob- serve it as a sign that the land should be thenceforth common to both people. " He would not," he added, " like the peo- ple of Maryland, call them his children or his brethren; for some parents chastised their children too severely, and bre- thren would disagree; nor would he compare their friendship to a chain which the rain might rust, or the fall of a tree de- stroy; but that he would consider them as of one flesh and blood with the Christians, and the same as if one man's body were divided in two parts." Resuming the parchment, he pre- sented it to the chief sachem, and desired that it might " be carefully preserved for three generations, that their children might know what had passed, as if he had remained to re- peat it."*
This treaty forms a brilliant ray of the halo which graces the head of Penn. It has been honourably noticed by eminent authors. " This," says Voltaire, " was the only treaty between these people and the Christians that was not ratified by an oath, and which was never broken." "William Penn thought it just," writes the abbe Raynal, "to obtain an additional right, by a fair and open purchase from the aborigines; and thus he signalized his arrival by an act of equity, which made his person and his principles equally beloved. Here the mind rests with pleasure upon modern history, and feels
* Clarkson.
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some indemnification for that disgust, melancholy, and horror, which the whole of it, particularly that of the European set- tlements in America, inspires."* It has been erroneously supposed that this was the first instance of the purchase of lands from the aboriginal Americans. But, in this particu- lar, Penn followed the example of Massachusetts, New York, Maryland, and New Jersey; and the Dutch, Swedes, and Fins of the Delaware. His merit consists in the justice and kindness which characterized all his intercourse with the na- tives. These have made an indelible impression. His me- mory is still gratefully cherished by their descendants, amid the distant wilds to which they have been driven by the tide of population. The great and good Onas, as they rendered the word Penn in their language, was an exemplar, which they frequently held up for imitation to his lieutenants and successors: and by this name they continued to distinguish the future governors of Pennsylvania. +
Many of the adventurers were indifferently protected from the inclemencies of the weather, by rude huts, and hollow trees, and by caves dug in the banks of the Delaware. At the close of the year, the proprietary, with the assistance of his surveyor-general, Thomas Holme, proceeded to lay out his promised city. ¿ (1) The ground selected was claimed by three Swedes, named Swenson, who relinquished it for a larger tract at a small distance.§ The spot was well chosen. A front on the Delaware and Schuylkill rivers, both naviga- ble, gave it important commercial advantages; the excellent harbour on the former, the boldness of its shores, and its depth of water; the level surface of the ground, excellent clay for the manufacture of bricks, inexhaustible stone quar- ries in the vicinity, and the salubrity of the atmosphere, made the site in all respects desirable. The city plot was two miles from river to river, and extended on the margin of each, one mile, making the circumference six miles. A part of the town plot was divided among the first settlers, but not ac-
Clarkson.
+ Proud, 213, in note. # Ibid. (1) See Note P', Appendix.
§ Campanius.
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cording to the "conditions" agreed upon between them and the proprietary. By that agreement, the adventurers were entitled to city lots, in the proportion of ten acres to every five hundred purchased in the country, "if the place would allow it." This ratio required a town of six or seven thou- sand acres, but the plot of Philadelphia contained only eleven hundred and eighty acres. This necessarily induced a new allotment. There is no record of this alteration, nor any written evidence that it was approved by the inhabitants; but a regular series of uniform facts upon the books of the land-office establish it beyond a doubt .*
During the first year, eighty houses were erected in the city, various mechanical arts were established, and an equita- ble and profitable trade was opened with the Indians. The governor chose his own residence in a manor, which he called Pennsbury, situated a few miles below the falls of the Dela- ware, and about twenty-five from the city, where he built a large and convenient brick house, having an extensive hall of audience for his Indian conferences. t
The survey of the country inhabited by Europeans having been completed, the proprietary divided it into six counties; three in the province, and the like number in the territories. The former he named Philadelphia, Bucks, and Chester; the latter, Newcastle, Kent, and Sussex. The seals adopted by the legislature for these counties, are indicative of the sim- plicity of the times. That for Philadelphia was an anchor; for Bucks, a tree and vine; for Chester, a plough; for New- castle, a cassia plant; for Kent, three ears of Indian corn; and for Sussex, a wheat-sheaf. The county organization was completed by the appointment of sheriffs and other officers.
The time fixed by the charter, for the election of the coun- cil, approaching, the proprietary issued writs to the sheriffs, requiring them to summon the inhabitants of their respective counties to elect twelve members, and to invite all the free- men personally to appear in the assembly. But the latter,
* See 2 vol. Smith's Laws of Penn. in note, where this subject is fully treated. + Clarkson.
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by general consent, resolved to delegate their powers to twelve representatives from each county, three for the council and nine for the assembly. They justified this innovation by that article of their charter, which empowered the governor and the freemen to construe and explain it. Yet some fears were expressed, that an omission to use the elective franchise in its full extent, might be a waiver of their charter. The pro- prietary, however, quieted these apprehensions, by declaring his readiness to concur in any alteration that was conducive to the public welfare .*
The council convened at Philadelphia, on the tenth of March, 1683, and the assembly two days afterwards. (1) The most important measure of the session was the adoption of a new charter, which was framed by a committee of the coun- cil and assembly. This instrument was much better digested than the former. The council was reduced to eighteen, and the assembly to thirty-six members. The grand committees and the treble vote of the governor in council were abolished.t The number of the council was limited to seventy-two, and that of the house to two hundred members. And this, like the former charter, contained an amendatory principle, by which it might be altered with the consent of the proprietary and governor, his heirs and assigns, and six parts in seven of the freemen in council and assembly met. The estates of aliens were assured to their wives or children, on the death of husbands or parents.
A further important alteration was made in the constitu- tion of the legislature, not by the charter, but by a resolution of the house, approved by the governor. The assembly con- sidered the right to confirm or reject the laws proposed by the council, as too limited; and required power to originate all legislative measures. This was conceded, notwithstand- ing a courtly member deemed even their pretension to de- bate on the laws, "too presumptuous, and derogatory from the governor's privileges and royalties, and that they were in
* Proud. (1) See Note R, Appendix, for names of the members of council and assembly. + Votes.
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duty bound rather to restore to him the right to negative their bills than to attempt a diminution of his power.
The governor was extremely desirous to make the people, in the fullest sense, parties to his laws, and that the bills pro- posed by councils should be thoroughly understood by them, before they were sanctioned by the assembly. For this pur- pose, all bills were directed to be published by proclamation, and the members of assembly to meet at stated periods, in their several counties, to consider them with their constitu- ents, preparatory to the general session. He seems, how- ever, not to have had entire confidence in their discreet exer- cise of legislative powers. He dreaded the forfeiture of the royal charter, by some act of theirs, and demanded from them security, to indemnify him against the consequences. But this requisition, after a short debate, was suffered to sleep upon the journals .* In grateful acknowledgment of his ser- vices, and in consideration of his expenditures, the assembly presented him with an impost upon certain imports and ex- ports.t The assembly provided by law for the ordinary ex- penses of the counties, in each of which they established an orphan's court, holding two sessions annually, for the inspection and regulation of the affairs of orphans and widows. Men in- experienced, and recently entrusted with legislative power, are often disposed to exercise it unnecessarily, and sometimes ridiculously. This was exemplified in two singular proposi- tions made during the present session: first, that young men should be compelled to marry; and, secondly, that two kinds of cloths only should be worn, the one adapted to the summer, the other to the winter season. But the good sense of the majority left propagation to its legitimate patrons, plentiful sustenance, and the passions of our nature; and economy to the aid of uncontrolled vanity. § The policy of the Quakers discourages appeals to the courts of law, unless all other
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