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CHAPTER XI

PROPRIETARY GOVERNMENT IN PENNSYLVANIA

The influence of Quakerism upon the development of ideals and institutions in the Jerseys has already been noticed. The control of that sect over West Jersey was complete, and without attributing too much to a reasoned policy, it may be concluded that the democratic simplicity of that colony was the direct product of Quaker preferences. The share of the sect in the founding of Pennsylvania was equally decisive, though in that case the existence of a single proprietor, who held under a royal grant, necessitated a closer adherence to the traditional forms of the province.

William Penn was not a political theorist, neither was he a systematic thinker on any subject. Scattered¹ through his writings will be found the commonplaces of his time to the effect that government was of divine origin, that its chief objects were to terrify evil-doers and to cherish those who do well. Laying stress on the latter of those two functions, it seemed to him that government was an agency in the moral training of the race. He was fond of dwelling on its ameliorating rather than its compulsive features. To him forms of government signified little, but rather the character of the men to whom the management of its affairs was intrusted. He could not find a model in the world which time, place, and circumstances had not altered. Even ill-designed systems had been made to work well when managed

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by good men, while bad men would ruin the best institutions. “That, therefore, which makes a good constitution must keep it, viz. men of wisdom and virtue, qualities that, because they descend not with worldly inheritances, must be carefully propagated by a virtuous education of youth. . . .”

In the history of England, as he read and valued it, the characteristic which appeared most prominent was the original freedom of the people. The early existence of representative institutions, the guaranties of property, and the jury trial, constituted a birthright the value of which he desired should never be forgotten. “Here are¹ the three fundamentals comprehended and expressed to have been the rights and privileges of Englishmen. I. Ownership, consisting of liberty and property. In that it supposes Englishmen to be free, there is liberty; next, that they have freeholds, there is property. II. That they have the voting of their own laws; for that was an ancient free custom, as I have already proved, and all such customs are expressly confirmed by the great charter, besides the people helped to make it. III. An influence upon, and a real share in, the judicatory power, in the execution and application thereof.” These are sentiments which Penn shared with all Puritans, and they had a decisive influence on the policy which he pursued toward his province. So desirous was he that the same principles should be known and valued there, that in 1687 he published,² in Philadelphia, an edition of Magna Carta, of the Confirmation of the Charters, and of the so-called statute De Tallagio non Concedendo. This was accompanied with an address to the reader in which the wish was eloquently expressed, that the inhabitants of the province would resolve “not to give away anything of Liberty and Property that at present they do . . . enjoy, but take up the good example of our ancestors, and understand that it is easy to part with or give away great privileges, but hard to be gained if once lost.” Sentiments of this nature were not expressed by any other proprietor concerning the inhabitants of his province. Though Penn himself was thrown much into the society of the great, he felt equally at

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home among the poorer and middle classes, and it was from their midst that the sect with which he was connected drew most of its recruits.

The significance of the Quakers in American history arises from the fact that their ideas coincided well with the prevailing tendencies of colonial life. The most of the colonists came from the same social classes as did the Quakers. They pursued similar occupations. As they removed into the wilderness and their children grew up under frontier conditions, the traditions of the old world to an extent lost their hold upon them. The aristocrats of Europe were almost totally absent, and society assumed a more democratic form. Local institutions sprang up in which the colonists shared to a greater or less extent. With their preservation the idealized conception of inherited English liberties became interwoven. In judicial administration substantial justice rather than the strict observance of legal forms was sought. The military spirit was weaker than it was even in England, and the occasions for its activity in most of the colonies were less numerous than in any part of the old world. Religious intolerance, except in its minor exhibitions, by the time Pennsylvania was founded had become impossible. With all these tendencies the opinion of the Quakers concerning the oath, war, religious freedom, trial by jury, strict limitation of the power of the executive in the interest of popular liberty, quite fully coincided. Wherever they settled in considerable numbers, religious freedom must necessarily exist, clerical influence would be greatly lessened, the power of the legislature would be fully developed, the tendency toward an elective official system would be strong, the centralizing of power which is often the consequence of war would be difficult. After Quakerism, like other forms of Puritanism, had become somewhat mellowed and broadened, it became favorable to popular education. The equality and individualism of colonial life found their counterpart in Quaker tendencies and beliefs. Quakerism acted as a powerful solvent on the feudal and monarchical elements in the constitution of the province.

Pennsylvania was in the full sense of the word a Quaker

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province. Not only was the proprietor a Quaker, but the sect controlled the assembly until the middle of the eighteenth century. In the preparation of his schemes of government, Penn freely consulted his friends, and the result was to an extent the product of their joint wisdom. Penn insisted that government should be “free to the people,” that laws should rule, and the people should be “a party to those laws.” There was no reference to a nobility in his charter. Penn could never present to livings, or be the head of an ecclesiastical establishment. In the laws agreed upon in England, and afterward enacted in the province, elections were made a prominent feature and provision was made for guarding them against bribery. Courts should be open, and justice neither denied nor delayed. In the courts “all persons may freely appear in their own way and according to their own manner, and there personally plead their own cause themselves, or if unable by their friends.” All pleadings, processes, and records should be brief, in English and in ordinary and plain character, so that they might be easily understood. Fees should be moderate and should be fixed by the assembly. Prison reform was sought in the provision that prisons should also be workhouses, that fees should not be required in them, or payment for food and lodging. Persons who were wrongfully prosecuted or imprisoned should have double damages against the informer or prosecutor. No one should hold more than one public office at a time. The provision that these laws should be posted up in all public courts and read annually by the people and accepted by them, together with the formal issue and acceptance of the Frames of Government, is indicative of a regard for the popular will which was rare in those times.

The first recorded utterance of Penn in the provincial council was to this effect: “The Governor answered, they might amend, alter or add for the Public good, and that he was ready to settle such Foundations as might be for their happiness and the good of their Posterities according to ye powers vested in him.” When the Frame of Government of 1683 was finally adopted, Penn declared, “that what was

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inserted in that charter was solely by him intended for the good and benefit of the freemen of the province, and prosecuted with much earnestness in his spirit toward God at the time of its composure.”¹ His utterances were in a similar strain in 1701. When taken in connection with the assertions of privilege which he made, these statements afford proof of the benevolent and paternalistic² attitude which Penn assumed toward his province. While he was not unmindful of the wealth and power which might accrue from his position, he identified himself with the colonists to an extent which was never attempted or approached by any other proprietor. This result was due to the humane and sympathetic spirit which made him a Quaker, a spirit which in his case, by intercourse with the world, was freed from the extravagances that appeared in the careers of many of the earlier leaders of the sect. Unlike the Carolina proprietors and some of the Calverts, he never sought to play the autocrat or by sharp management to monopolize political power. Unlike the leaders of Massachusetts, though establishing a Quaker province, he expressly renounced the idea of restricting political rights within it to members of his own sect³ In him and his sect appeared many of the tendencies which were finally to triumph and to constitute the distinctively American spirit. Fewer obstacles to the ultimate prevalence of that spirit were erected by him than by any other proprietor.

The system of government of Pennsylvania was established under authority transmitted through the Frames of Government of 1682 and 1683, and the Charter of Privileges⁴ of 1701. Of these the first was issued by the proprietor after discussion⁵ and agreement with the intended purchasers of land in the province; the second was issued by

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the proprietor after his arrival in the province; the third was issued by him just before the close of his second visit to America. A third so-called Frame of Government was issued by Governor Markham in 1696 with the approval of the legislature as an act of settlement. As this instrument was never accepted by the proprietor, it can be said to have been in force only as a temporary act. Furthermore, there is no proof that the Frames of Government and Charter of Privileges were submitted to the crown for its approval, as required by the royal charter. But as the charter did not declare that the acts which were not submitted should be on that account annulled, those which were issued by Penn and approved by the legislature, in spite of the irregularity, must be regarded as in force. Unlike the schemes of government which were issued by Gorges and the Carolina proprietors, the Frames of Penn were submitted to the colonists at the outset for their acceptance, and were put as fully into operation as circumstances permitted.

The existence of a representative system, and one, too, which was unusually developed, was guarantied from the first by the Quaker proprietor. The statement was made in the first Frame that powers of government were vested in the governor and freemen, those of the latter to be exercised in two representative bodies, the council and the assembly. The governor, as executive of the province, was the appointee of the proprietor and the president of the council. In the council he had three votes, but no mention is made of his possessing the right of veto, either over the acts of the council or of the assembly, or of the two combined. The legal position of the governor within the legislature was in some respects like that of the governor of the corporate colony, both being forced to depend largely on the moral influence which they could exert.

The grant of an elective council marks an important departure from the traditional system of the province, one, however, which appears under special and qualified forms in the Carolinas and the Jerseys. It was a concession to the colonists, whether they were rich land-owners and merchants,

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or men of lower station, which involved serious consequences for the proprietor, and from which proceeded many of the complications of the first two decades of Pennsylvania history. It also contributed in an important degree toward determining the form which the legislature of that province ultimately assumed. With an abundance of detail which is a characteristic of all Quaker concessions, as it is of Locke’s Constitutions, provision was made for an elective council of seventy-two members. A faint attempt was made to secure for the council the position of an aristocratic body—one more likely than the assembly to act in harmony with the proprietor—by the requirement that those of best repute for wisdom, virtue, and ability should be chosen as its members. For the better performance of its duties as an executive body, the council was empowered to organize itself into four committees—on plantations, trade and finance, education and arts, and justice.¹ The combined quorum of these committees—twenty-four members—constituted the standing council. This was the form regularly assumed by the council for the transaction of routine executive business. It was apparently hoped that over the council, though elective, the proprietor and governor would be able to exert a controlling influence, for it was given, in addition to the usual executive powers, the exclusive right of initiating legislation and of summoning and dissolving the general assembly. But it could adjourn itself, while over its acts the governor did not possess the right of veto. He had only a triple vote in the council. It was also empowered to present annually to the governor double the number of persons required as candidates to serve as judges, treasurers, and masters of the rolls,—the most important subordinate and local offices,—and from these the governor should make the selection. The office of secretary, surveyor-general, receiver-general, and provincial treasurer, the first three of which were closely connected with the land-office, were filled by the proprietor or governor.

The assembly of two hundred members, though it was

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also elected by the freemen, was given a decidedly inferior position. Its functions were to impeach offenders before the council, to prepare amendments to the bills laid before it, and finally to approve or reject those bills. The position of inferiority assigned to it is made even clearer by the provision that it should be called and adjourned by the governor and council. It thus appears that the characteristic features of the system of government which was devised by the Quaker proprietor were the weakness of the governor and the prominence of the elective council.

Penn wrote some time later: “The people have their representatives in Provincial Councell to prepare, and y^e Assembly as it is called has only the power of aye or no, yea or nay. If they turn debaters or Judges or complainers, you over-throw the Charter quite in the very root of y^e constitution of it, for that is to usurp the Provincial councel’s part in the Charter and to forfeit the charter itself; here would be two assemblys and two representatives, wheras they are but one to two works, one prepares and proposes, the other assents or denys. The negative voice is by that in them and that is not a debateing, mending, altering, but an accepting power.”¹

In June, 1681, William Markham, Penn’s first deputy, by virtue of his commission, appointed a council.² The writs for the calling of the first legislature did not require the election of a council, and for this reason the legislature of Pennsylvania, which met at Chester, December 4, 1682, consisted of only one house. Only seven members were chosen from each of the six counties into which the province and “territories” were then divided. Its organization and procedure were generally in accordance with the forms accepted in the colonies, it enjoyed all necessary independence, and it did a large amount of legislative work.³ It passed the act of union with the three Lower Counties, and a naturalization act. It passed also the “printed laws,” or laws agreed upon in England. It carefully considered the “written laws or constitutions” prepared by the proprietor, consisting of

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ninety chapters. Each chapter was considered separately and many amendments were proposed. Seventy-one chapters were passed, of which the sixty-one which were finally engrossed became the so-called Great Law of Pennsylvania.

The writs which Penn issued for the election of 1688 called for a provincial council of seventy-two members, and declared that the remainder of the freemen might attend in person to constitute the assembly. But the returns from the counties were accompanied by petitions—inspired, it is probable, by Penn himself—that the twelve who had been chosen in each county might together constitute the councillors and assemblymen. It was now so clear that the legislature as planned was far too large for the needs and resources of the province, that the proposal of the petitioners was accepted, though it involved a departure from the Frame of Government.¹ The proprietor expressed his consent to whatever the public weal demanded, while a protest from Nicholas Moore, the president of the Free Society of Traders, led to a hearing before the council and his reprimand.

The chief debate of the session was over the right of initiation. The assembly petitioned for the right, and conferences with the proprietor and council were held. In the debates over the subject in the assembly some of its members used language implying excessive humility, as if it involved ingratitude toward the proprietor even to debate and amend the bills which he submitted. Penn expressed the fear that, if the right of initiation was conceded, an attempt might be made to legislate in violation of the terms of his patent and thus its forfeiture might be occasioned. But in a succession of conferences the clauses of the existing Frame of Government were reviewed. It was amended in several important particulars, and after the revised document had been accepted by both the proprietor and the two houses, it was delivered to them by the proprietor as the Frame of Government of 1683.²

The amendments provided that the council should henceforth consist of three members, and the assembly of six members, from each county. The triple vote of the governor

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in the council was abolished; while it is not clear that the lieutenant-governor—the proprietor’s appointee—enjoyed the right of veto. The council was no longer divided into standing committees. Bills proposed by the council to the assembly should be published twenty days before the meeting of the general assembly. The difference between the method employed in Pennsylvania for the revision of concessions of government and that used by the proprietors of Carolina, is interesting and suggestive.

The proprietor now returned to England, leaving the executive power in the hands of Thomas Lloyd, as president, and of the council. Quiet prevailed until 1685. Then disputes arose between the council and the assembly over the form of language used by the council in the promulgation of bills which were to be considered in the forthcoming session. The form, “by the authority of the president and council,” or its equivalent, was thought to violate the Frame of Government and to ignore too much the lower house.¹ The council finally agreed to obey the law, but in 1686 resumed the use of the form to which objection had been made. This led to renewed controversy over the privileges of the two houses, the form in which conferences between them should be held, the promulgation of bills, and the continuance of temporary laws. The course of legislation was stopped, and the impotence both of the executive and of the lower house was revealed. Of the eighteen members of the council usually only five or seven were present at its sessions; at times less than the required quorum of one-third. Both parties were fain to call a truce until the differences could be referred to the proprietor, or until he should return to the province.² Attempt on the part of the assembly to secure the impeachment of Nicholas Moore for opposition to its will and for arbitrary proceedings on the bench, and to bring about the removal of

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Patrick Robinson, clerk of the provincial court, for alleged insolence¹ toward the assembly, were incidents of the struggle. In both these efforts the assembly failed.

The reports which came to Penn apparently convinced him that the executive was not properly organized, but the remedy which he prescribed was not calculated to relieve the situation. He associated with Lloyd four other prominent residents of the province, Nicholas Moore, James Claypole, Robert Turner, and John Eckley, the five together to be known as commissioners of state. They were to act in the capacity of deputy governor.² Penn instructed them, or any three of them, to compel the members of the provincial council to attend to their duties, “or to take such a council as you think convenient to advise and assist yon in the business of the public; for,” he continued, “I will no more endure their most slothful and dishonorable attendance, but dissolve the frame without any more ado; let them look to it if further occasion be given.” He criticised the provincial council as “clogged with a long and slow tale of persons rarely got together, and then with unwillingness, and sometimes reflections, even upon me.” The new board of commissioners was instructed to suffer no disorder in the provincial council or assembly, to inquire into their past acts and into the qualifications of members of both houses. They were also to declare the proprietor’s abrogation of all that had been done in his absence, preparatory to the reenactment by another assembly of the laws of the province, with such amendments as seemed proper.

But relations with the lower house were no more amicable than they had been before this change, while the sessions of the council were no better attended than they had previously been. The lower house was jealous because it did not possess the right of initiative, while the council irritated it by insisting on its own superiority. In the session of May,

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1688, as had been the practice since the proprietor left the province, the lower house neglected to present its speaker¹, for approval. It also took separately the oaths of allegiance and fidelity, and resolved not to divulge any of its proceedings. At first the provincial council was inclined not to recognize it as a house, and after legislation began bickerings continued throughout the session. As the council refused to confer hereafter with any committee of the house and denied its power to make a committee, the assembly naturally kept insisting on its “privileges.” Finally the council had to yield, and a committee from the house was admitted to conference. Though the session ended in a formal reconciliation, the two most important bills, one to prohibit the exportation of deerskins and another the supply bill, failed to pass.

The unsatisfactory relations which still existed caused the proprietor to again interpose, and before the end of 1688 he appointed Captain John Blackwell governor.² The commissioners of state were superseded, and a stranger, a man of military training and a Puritan, was introduced as the head of the government. It was not unnatural that the late commissioners should be dissatisfied, and, as they were all men of influence, they could make much trouble for a man who was situated like Blackwell. Alone, unaided, he had to face an elective council and a legislature, the members of which were either indifferent or strongly prejudiced against him. An executive in such a position must needs be helpless, and, if William Penn really desired to maintain the proprietary form of government, it is evidence of his poor judgment that he should have allowed the executive to be thus compromised and weakened.

The new governor first attempted to secure a more regular attendance on the sessions of the provincial council. At its second meeting³ after his arrival a quorum was not present. By a special effort a quorum, but no more, was brought together at the next session,⁴ January 14, 1689. It was then ordered that the sheriffs should acquaint the members of the

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council who resided in their respective counties, that one of them should attend each month as required by law and by the charter. But at the session on January 28, a quorum was not present and no business could be done. The same was true on the thirty-first, and, after waiting two hours, those who were present¹ departed. On March 1 all the members from Chester county were present, and the governor asked them to agree among themselves as to the order of their future attendance, and to inform the secretary. Thereupon one of them, John Symcock, who had also been one of the commissioners of state, declared that he would not² attend, and left the duty to be performed by the other two. On March 4 no quorum was present; the same was true on the eleventh. On the twelfth, when six were present, the governor stated that the means he had used to secure attendance had failed, and he asked the advice of the council in the matter. At his request the question was put, whether it were not the duty of one of the members elected for each county to “Constantly attend ye Governor in ye affayres of ye Government.” Though such a proposition would seem to be fair and moderate, it was debated and its decision postponed till some six weeks later.³ With this the governor was not satisfied, and later repeated the question of the former session. After much debate and expression of unwillingness to advise the governor in the premises, Arthur Cook, who also had been a commissioner of state, declared that the poverty of the people was so great that they could not bear the charge of constant attendance, as the law required, and that the governor be requested to suspend for the present the execution of the requirement. This resolution passed in the affirmative, the secretary only dissenting. Only occasionally after this did more than a bare quorum of the council attend its sessions. The governor’s purpose to secure a full attendance was defeated, and conditions were prepared for a bitter quarrel between him and the council. In this he could not command the support of the assembly and must really face the entire legislature alone.

The obstinacy of the council was probably due in part

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to dissatisfaction on the part of certain of the commissioners of state at being so summarily removed by the proprietor. Thomas Lloyd was from the first the leader of the faction which opposed the governor, and with him the controversy began. Blackwell, being a stranger and without support, showed poor judgment in venturing upon the conflict.

The governor should have been chancellor, but Lloyd, either when made president or later, had been appointed keeper of the great seal. He had in his possession a blank parchment which the proprietor had sent over in 1684, in order that upon it an instrument should be drawn confirming all valid patents and commissions. Lloyd also had the chief letter of instruction which Penn had sent to the commissioners of state, by which he had ordered Blackwell to be guided. When Blackwell’s administration began, the council, at the request of the governor, sent for the instruction, as well as for copies of all letters and other instructions from the proprietor which related to the government. The blank parchment Lloyd delivered at once, and promised a transcript of so much of the letter of instruction as concerned the governor. As to the other letters and documents, he desired time to consult the late commissioners of state and members of the council to whom they were directed. Later, after being reminded again by special order of the council, Lloyd practically refused to deliver certain letters which the governor considered of importance, letters to which Penn is said to have referred him for guidance.¹ Symcock and Cook appear to have sympathized with Lloyd in this attitude, though later Symcock and the keeper were not wholly in agreement.

Shortly after, the governor sent to Lloyd a draft of new commissions for justices of the county court of Philadelphia, with his warrant for passing them under the great seal. This Lloyd refused to obey. The governor then declared that he should issue the commissions under the lesser seal and inform the proprietor. Names of candidates were then propounded to the council and, no record of objections appearing, it is probable that the appointments were² made.

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Another encounter soon occurred. On March 1, 1689, Lloyd informed the governor that he soon intended to visit New York. The council, on the request of the governor, then advised¹ Lloyd that during his absence the great seal should be deposited with that body. Lloyd therefore submitted a written statement to the council in which he claimed a “fixed estate” in the seal, and complained that he had been used unkindly, causes of accusation being sought against him. But the fact that the quarrel was between Lloyd and the governor rather than between him and the council is proved by the offence which Lloyd’s paper gave to Blackwell, while the council treated him with marked consideration.

The state of feeling was speedily shown by a dispute between the governor and Samuel Richardson, a member of the council, over the question whether or not a certain petition should be received. Richardson and Arthur Cook² then repudiated the governor’s authority, saying that the proprietor only had authority to appoint a deputy. When, because of his insulting language, Richardson was ordered by Blackwell to leave the room, he refused, saying, “I was not brought hither by thee and I will not go out by thy orders; I was sent by ye people, and thou hast no power to put me out.” Though the council supported the governor to the extent of ordering Richardson from the room, executive power was challenged in the most direct manner by this event. When Blackwell, apparently in conformity with the Frame of Government and with the laws,³ sent to the chancellor a list of appointees for provincial judgeships, the latter refused to affix the seal to their commissions, alleging that these documents were “more moulded by fancy than formed by law.” The council failed again effectively to support the governor, and he was thwarted in his effort to appoint judges and open the courts.

At the spring election of 1689, Thomas Lloyd and Samuel Richardson were returned as members of the provincial

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council.¹ The governor tried to exclude them on the ground of their offensive conduct, and presented a series of charges against Lloyd looking toward his prosecution. This aroused a hot debate, which soon after was revived by the publication of what was presumably an attack on the governor. This was traced to Joseph Growdon, another member of the council.² Growdon refused to withdraw at the command of the governor while this matter was being discussed, and a general cry was raised that the members who had been elected, but from whom the governor withheld their seats, should be admitted. Thereupon occurred the sharpest debate among those reported. But the governor remained firm. He adjourned the council, and a quorum did not again appear till several days after the date—May 10—for the opening of the session of the general assembly. Naturally the lower house, when it met, sympathized with those whom the governor had excluded from their seats in the council. As this was an obstacle in the way of securing the attendance of a quorum of the council, and in that way contributed toward making the organization of the legislature impossible, the exclusion of the councillors was presented as a grievance³ and its redress was demanded. When the session actually opened, the governor defended his policy and office in a long speech, but, owing partly to the disputes, he and the council had no bills to propose. Therefore no new laws could be passed that session. An irregularity already committed in not passing laws under the great seal seemed to invalidate all in existence save the Frame of Government and the Act of Union with the Lower Counties. The proprietor had also ordered the repeal of the existing laws and their reënactment with amendments. But such was the state of feeling within the legislature that even this was impossible. After wrangling for a week or more over the detention in custody of one John White, who had been elected a member of the lower house from Newcastle county, the assembly broke up without formal adjournment.

It now being evident that the expiration of the laws could not be prevented by legislation, some action by the governor

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and council became necessary. The question was discussed at length. Growdon and others, who were opponents of the governor, expressed the view, “that ye Laws formerly made were good before ye Governor had confirmed them, and we suppose the Lawes are in force as they are.” The governor, supported by Markham, Clarke, and others, insisted on the necessity of a declaration continuing existing laws in force and warning officers to execute them. The governor said that, if that were not issued, he should administer the government according to the Frame and laws which were passed before the proprietor went to England, and should commission the judges under the lesser seal. In spite of interruptions which were caused by appearances of Lloyd and Eckley to demand their seats, all except two members of the council were finally induced to assent to the declaration which the governor desired, and it was issued May 23, 1689. With this the important business of Blackwell’s administration came to an end.¹ He had faithfully upheld the cause of the executive, but against an opposition which was too strong for a governor who was not supported by an appointed council. If it was really Penn’s intention to centre authority in the council, his system of polity was well adapted for the purpose.

In the arrangement for the continuance of government after the close of Blackwell’s brief administration, Penn made another notable surrender to the dominant forces in the province. Finding it impossible for him to return, he sent two commissions between which he permitted a choice.² One provided that the provincial council should present three names from which the proprietor should select his governor, and that in the interim an official elected by the provincial council should act in that capacity. The other commission provided that the provincial council itself should act as executive, and to that end should from time to time elect for itself a president. Penn wrote that he threw all into the hands of the provincials, that they might see the confidence he had in them and his desire to give them contentment. Relying, as usual, on moral influence, he exclaimed

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in closing, “Whatever you do, I desire, beseech and charge you all to avoid factions and parties, whisperings and reportings and all animosities, that putting your Common Shoulder to Ye Publick Work, you may have the reward of Good men and patriots.” The council at once chose the second alternative that was offered. The provincial council again became the executive, and Thomas Lloyd was chosen president. The opposition against which Blackwell had struggled was again fully installed in power, and that with the consent of the proprietor. Within the province there was now no obstacle to the assertion of the will of the provincials through the legislature. The executive had been subordinated to it. So long as that condition lasted, conflict of course was impossible.

The suspension of Penn’s governmental powers in 1692, and the appointment of Benjamin Fletcher, governor of New York, as royal governor of Pennsylvania, came as a rude shock to the dominant party in that province. Fletcher properly considered that the Frame of Government was superseded by his commission. The elective council at once gave place to one appointed¹ by the governor and subject to approval by the king. Among the councillors were Andrew Robeson, Robert Turner, Patrick Robinson, Lawrence Cock, and William Clark. William Markham was appointed lieutenant-governor. The councillors were also placed on the commissions of the peace throughout the province. At the governor’s request, they presented a list of names of persons who were qualified to be judges, justices of the peace, sheriffs, and to fill other offices. This was accepted. At the instance of the governor, the representation of the counties in the assembly was reduced to four from Philadelphia county, and three from each of the others. The number of members in the council was also considerably reduced as compared with what it had been under the proprietary regime.

The introduction of the forms and usages of the royal province resulted in one important gain for the lower house:

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it secured for it the right to initiate legislation. This doubtless, in a measure, reconciled the assembly to the other changes.

As soon as the assembly was organized, it took up in committee of the whole the question which to it and to all friends of Penn’s system was of vital importance—to what extent the proprietary laws and constitution were still in force. It unanimously resolved that the laws which were in force on Fletcher’s arrival were still in force, and that the governor should be asked to confirm them. Fletcher met these declarations with a prompt denial of the present validity of these laws, and an assertion of the exclusive authority of the royal commission. He declared that he found many of the laws and usages of the province to be repugnant to those of England, and especially cited the elective council, the lodgment of the so-called negative voice in the assembly, the requirement that double the necessary number of candidates for the offices of sheriffs and justices of the peace should be nominated to the governor by the elected council. Though Fletcher would not rank high as legal authority, he certainly attacked the peculiar and distinctive features in Pennsylvania government, those in which it departed most, not only from English precedents, but from those which had been established both in New York and Maryland.

The assembly expressed in reply a willingness to coöperate with the governor under the terms of the royal commission,¹ provided they might be governed according to the laws and constitution of Pennsylvania, so far as these were not inconsistent with the commission and with the king’s pleasure. To this the governor replied that he was willing to agree to the passage of suitable laws; but he called the attention of the assembly to several of the existing criminal statutes, to the law relating to the inheritance of land, to marriage, to the person of the proprietor, as examples of acts which he thought repugnant to the laws of England. He also desired that a post-office might be established, that a grant should be made for the defence of New York, and that the New York act against pirates

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might be passed. The assembly now set about the examination of the laws for the purpose of their revision. This was new work for the assembly, as the council had hitherto prepared all bills. They found, on consulting the keeper of the seal, that no laws had been enrolled, because no warrant for the purpose had been issued; but he believed that the council book, which was in the possession of Markham, contained true copies of all the bills that had been passed. This meant that the acts had never been passed under the great seal as required by the charter. The assembly passed a bill setting forth a part of the provisions of the royal charter about legislation, and added to it the titles of two hundred laws which they claimed were already in force, and asked Fletcher to administer the government in accordance with them. This was the so-called “petition of right.”¹

The governor replied that, according to information which he had received, these acts had never been submitted to the king or confirmed by him. Upon this point the members of the assembly had no definite information. The most they could say was, that Penn had carried the larger part of the acts to England, and that they had never been declared void; also, as to the rest of the laws, the five years’ limit had not been reached. The governor and council also insisted with much force that the bills were all invalidated by the fact that they had not been passed under the great seal as required by the royal charter. They insisted on seeing the original statute rolls, and refused to be satisfied with a mere list of titles.² A conference between committees of the two houses was held, in which the argument of Patrick Robinson in support of the contention of the governor and council³ carried the day. The conferrees from the assembly thereupon agreed to prepare another revised list of laws which the governor would accept as valid until further orders could be procured from England. The haste of Fletcher to return to New York caused him to yield on certain points. The assembly made an ineffective attempt to coerce him by withholding the supply bill, but a threat of dissolution brought it to

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terms. The supply bill and thirty new bills became law. The petition of right, containing an amended list of eighty-six acts, out of the total number of two hundred, was also accepted by the governor, and an order was appended to it that all justices, sheriffs, constables, and other officers in Pennsylvania and the lower counties should cause them to be executed until their majesties’ pleasure should be further known.¹ No episode illustrates better than does this the contrast between the easy-going methods of government which were natural in the chartered colonies, and the stricter forms which the royal governors were bound to see enforced.

Fletcher held but one more assembly in Pennsylvania, and that was an adjourned session² in May, 1694. David Lloyd was its speaker. The chief point of difference which then arose between the governor and the lower house concerned the raising of a supply. Fletcher requested an additional contribution for the defence of the New York frontier. With his customary effusiveness he expressed the hope that they would not “refuse to feed the Hungrie and Cloath the naked.” But when the supply bill was presented it contained a provision for grants of £200 each to Thomas Lloyd and William Markham, to pay for services which they had rendered as deputy governors, apparently in part before the issue of the royal commission. Fletcher reminded the assembly that appropriations should be made exclusively to the crown, and that a petition should be presented for special grants of this character out of the general supply. To the bill for court levies he also objected, because, contrary to English usage, it authorized their imposition by the justices and representatives from the respective counties, without the cooperation of the grand juries. This assembly also, like its predecessor, presented an appropriation for the wages of its own members without any provision for councillors, judges, or others who held office under the king’s commission. They, moreover, charged the governor with failure to give them due credit with the Iroquois for the assistance which they had given the previous year. They attempted, when

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considering the supply bill, to name a treasurer in the place of the receiver-general who held under royal appointment. Recognition of the letter of the queen which required appropriations for the defence of New York, Fletcher was unable to induce either this assembly or its predecessor to give. Therefore, after approving of a few measures, he dissolved the house and returned to New York without the supply on which he had insisted.¹

Though in 1694 Penn’s powers of government were restored, and Fletcher never again visited Pennsylvania, his administration there proved not to have been without influence upon the Quaker province. The proprietor again appointed William Markham as his deputy governor, though, because of his poor health, two assistants, John Goodson and Samuel Carpenter, were designated to aid him. The elective council was restored,² and many who had been its members before Fletcher’s time were returned. David Lloyd now appears for the first time as councillor. The election both for the council and the assembly was held in April, 1695, and, if the Frame of Government had been obeyed, the legislature would have met on the 10th of May. But the council decided that it should not be called until September. On May 20, however, Markham called a full council³ to prepare bills for promulgation. It was resolved into a grand committee to inspect and revise the laws. But the first proposition which it considered was that of laying aside the Frame of Government and substituting another which should be “more easie.” Though insuperable difficulties appeared which thwarted this object, the council failed to exercise its right of initiative. No bills were prepared or promulgated.

When, in September, the legislature met, Markham told its members that both in reference to the time of holding the assembly and to the proposing of bills he had tried to obey the Frame of Government; but, because of the advice and action of the council, he had not been able so to do. He also submitted to them recent letters both from the queen and Fletcher, and laid upon them the responsibility for raising money to meet the queen’s demands.⁴ The two houses now deliberately

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violated the Frame of Government by resolving that, considering the emergency, they might proceed with legislation without the promulgation of bills. Continuing in this way the practice of the Fletcher regime, it was decided that either house might initiate legislation. An attempt was then made to pass a supply bill. Though it contained no express mention of a grant to the queen, it was intended that a surplus which the levy was expected to yield should go for general purposes of defence. With this was coupled an act of settlement, which was intended to embody the new principle of initiative by the lower house. Though the supply bill contained an appropriation of £300 for Markham, because it made no provision for the relief of New York, and because he thought that the Frame of Government should not be abandoned without¹ further debate, he refused to pass the bill and dissolved the council and assembly. Inasmuch as Penn’s government had been restored on the promise that better provision should be made for defence, this result seemed likely again to imperil the proprietor’s interests.

At this time and for months thereafter Markham insisted that the Frame of Government had revived after the close of Fletcher’s administration, and he waited for some decisive word from the proprietor in support of that opinion. The assembly, however, held that it would require positive legislation to put it again into force. Not only was this a reasonable opinion, if it contemplated express consent on the part of the proprietor, but it tallied well with the desire of the assembly to secure the right of initiative. After waiting a year without receiving decisive instructions from the proprietor, Markham found it necessary, in October, 1696, to call another assembly. Preparatory to this, and in order to strengthen the executive, especially within the legislature, he appointed a council.² He selected men of estate and urged on them a diligent regard to the orders of the crown.

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An assembly was then called for the special purpose of appropriating the sum required by the queen for the defence of New York. That body, more decisively than its predecessor, coupled supply with a proposed act of settlement as mutually conditioned. After a conference had been held,¹ the governor surprised the assembly by presenting “some heads of a frame of government.” The assembly having amended these, and cast them into the form of a bill, brought up with it² another bill for the required appropriation, and, on November 7, 1696, the two became law together.

In this way came into existence the act of settlement, which was popularly known as Markham’s Frame of Government.³ Besides the retention of the elective council, its most important feature was the guarantee to the lower house of the right to initiate legislation. This was the first time that the principle was incorporated in an act of the Pennsylvania legislature. But the act itself declared that it should remain in force until the proprietor should signify the contrary, while the evidence is satisfactory that Penn never confirmed it. Thenceforward, however, the lower house, as well as the council, regularly initiated legislation.

When, in 1700, Penn paid his second visit to the province the discussion of the organization of the legislature was resumed. The opinion was then expressed in the council that the Frame of 1683 was still in force⁴ “as to its fundamentals.” Penn said that Markham’s Frame had served until he came, but it could not bind him against his own act, meaning by that the issue of the Frame of 1683. The council then resolved to read both Frames “and keep what’s good in either, to lay aside what’s inconvenient and burdensome, and to add to both what may best suit the common good,” and to present the same before the proprietor. With the discussion of this, which was continued at intervals for several months, was connected the revision of the law of the province and the passage of an act confirming the property rights of freeholders. In the last-named act the assembly was especially interested. The results arrived at on all

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these questions evidently proceeded from the joint action of the proprietor and the legislature, and the two cooperated freely at all stages of the discussion.¹ The final result was embodied in the Charter of Privileges of 1701.² In Articles II and III of this document the proprietor fully recognized the independence of the assembly, and by implication also the fact that it should be the only house of the legislature. This inference appears to be justified by the absence from the Charter of Privileges of a provision for the election of any except members of the assembly and by the appearance a few days later of a commission appointing the members of the council and giving them only administrative powers. The council in fact never thereafter exercised legislative powers. It constantly advised the governor concerning proposed legislation, bills were discussed, and law making was influenced by it, but it did not legislate.

The events which have now been outlined present a striking illustration of the difference between Pennsylvania and the other proprietary provinces. Penn, instead of claiming for himself a special right of initiative, committed it wholly to a large executive council. By making his council elective he at once transferred a very large share of the executive power into the hands of the colonists. This, together with a certain carelessness in the transaction of business, soon involved the proprietor and his governor in difficulty. Several devices were resorted to, but none brought permanent relief. By 1700 the necessity of an appointive council had apparently become obvious to those who had the rights of the proprietor and the permanent interests of the government at heart. But in order to secure it Penn tacitly agreed that the council should possess no legislative power. By this process the legislature of Pennsylvania, unlike those of the other provinces, came to consist of the governor and one house, and that house was the assembly.