The relations of Pennsylvania with the British government, 1696-1765

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Preface

Until recent years, — the last two decades, — it was the fashion for historians of our colonial era to treat the English possessions in America in the domain of American history. This practice to a large degree ignored the fact* that the colonies were parts of a great Empire/ A predominant interest in provincial development and a lack of the requisite material on this side of the water are the factors chiefly responsible for the neglect to study the old British colonial policy. A few writers have not failed to understand that the colonies were subject to an elaborate imperial system, neither have they been handicapped by the lack of the material necessary to study the imperial relation, but their work has been seriously marred by a show of the traditional American prejudice which views the British policy toward her first dependencies as something tyrannical and oppressive. Various forces have been at work, and are still active, tending to clear away the older parochial and democratic points of view. The advance of sound historical scholarship in America has substituted for narrowness of vision and false notions of patriotism, a catholic attitude, the spirit of the judge, and the desire of the investigator to leave nothing undone to elicit the truth in full. In the field of colonial history the advance has meant the substitution of the modern and normal imperial point of view for the old provincial attitude. In order to understand clearly and to pass judgment im-

1 Andrews, Some Neglected Aspects of Colonial Hist., (an address delivered before the N. J. Hist. Soe., May, 1900) ; Andrews, American Colonial History, (Amer. Hist. Asso., Reports, 1898) ; Osgood, Study of American Colonial Hist., ihid; Conference on Research in American Colonial Hist., ihid., 1908, I; Osgood, American Colonics, I, xxvi-xxvii.

ii PRP^FACE

partially on England's first colonial policy, American scholars are laboring patiently with material hitherto practically unexplored and neglected. The results have been embodied in histories and monographs clearing away erroneous notions and casting a flood of light on phases and periods of British xVmerican history once obscure and slighted.^ Praiseworthy efforts have been made by English and American scholars to elaborate guides to the vast mass of material in English repositories, beckoning on the investigator to labor in new and interesting fields.^ IMuch has been done to make this material accessible in America in the form of printed collections and transcriptions, but much remains to be done.^ Great credit is dae to Professor C. M. Andrews of Yale, Professor H. L. Osgood of Columbia, and Dr. Beer, the pioneers in this field, for their admirable work in calling attention to neglected points of view and unexplored material, and for interpreting the relation of the colonies to the Empire in a scholarly and scientific manner.

In the following work the province of Pennsylvania is singled out for particular investigation in order to elucidate the nature of British imperialism in its political and administrative features during the eighteenth century. It is the purpose to describe both the organization and activity

2 Beer, Origins of the British Colonial System, 1518-1660 (1908), and British Colonial Policy, 115J^-1165, (1907); Andrews, British Committees, Commissions, and Councils of Trade and Plantations, (Johns Hopkins Studies, XXVI, 1908) ; Osgood, American Colonies, III, (1907), is a masterly treatment of the imperial system in the 17th. century, based chiefly upon printed material readily accessible. Professor Osgood is now engaged on a continuation of the work, based largely upon new material, viewing the subject from the standpoint of the colonies.

3 Andrews and Davenport, Guide to the Manuscript Materials for the History of the United States to 1783, in the British Museum, in Minor London Archives, and the Libraries of Oxford and Cambridge. (Washington, 1908.)

4 For a detailed list of the printed material and transcripts, see the bibliography appended.

PREFACE iii

of the central institutions of colonial control and the work of the royal officials in the colonial service administering imperial policies. Since the colony is considered from the point of view of the Empire, the study falls largely in the field of English history. Indirectly it is a part of American history, for a general knowledge of provincial development is essential to a proper appreciation of the continual action and interaction of imperial and local interests and ideals. The study will limit itself to that neglected middle period of colonial history extending roughly from the reorganization of the system of colonial administration in 1696 to a second reorganization at the close of the last French war. The material on which the work is based was drawn chiefly from the transcripts of the Board of Trade Papers and Journals in the library of the Historical Society of Pennsylvania and the originals in the Public Record Office, London. In addition, manuscript sources, such as the Penn Papers in the library of the above society, and published collections, such as the colonial records, parliamentary papers and journals, and the writings of English and American statesmen, have been fully searched.

This work is the result of investigations begun in a seminary course conducted by Professor Herman V. Ames, at the University of Pennsylvania. It was first accepted in partial fulfillment of the requirements for the degree of Doctor of Philosophy at this university, and has since been expanded in the light of more complete investigations.

I cannot close this preface without acknowledging the debt of gratitude I owe to Professor Andrews and to Professor Ames for their constant interest, encouragement, and counsel; their kindly criticisms and suggestions have saved me from many errors. My thanks are due also to the officials of the Historical Society of Pennsylvania for various courtesies; to the Publication Committee of the University of Pennsylvania for considerate attention; to Professor F. L. Paxson of the University of Wisconsin for

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reading my manuscript and suggesting alterations; and to my wife whose inspiration and encouragement have created the hope that this study will not be without value.

^r -,■ WINFRED T ROOT

Madison, Wis., ^^ui.

October, 1911.

Introduction

In undertaking to set forth the relations between the chartered colony of Pennsylvania and the central government, it is realized that the British system of colonial administration will not be as clearly revealed as in the case of the royal province. In the latter the powers of the home government were exercised immediately through the responsible agents of the crown; in the former they were exercised indirectly through the officials of proprietors and corporations. But the charter to William Penn contained provisions, peculiar to itself, which drew the province into intimate connection with the central government. Furthermore, the inception of a stricter control over the colonies in 1696 made this connection still stronger. A study of the charter and the system of administration established in 1696 will reveal the nature of these relations.

The charter to William Penn and his heirs of March, 1681, passed the seals at a time when English officials at home and in the colonies had learned by bitter experience the glaring deficiencies of the earlier charters viewed from the standpoint of imperial ideals. These defects arose from the difficult problem of enforcing imperial policies through officials not amenable to direct royal control. England's pioneer work in colonization had been accomplished chiefly by private enterprise and initiative, authorized by royal charter. The statesmen who drew these charters, unable to forecast the development of a well-defined imperial policy, bestowed upon the grantees large privileges and liberal powers of government and took no thought of making provision for a close supervision of colonial progress by the central government. The result was that the colonists, untrammeled by interference from home and exhibiting all the characteristics of a true pioneer and frontier people, fashioned their institutions as they saw fit and ordered their affairs according to their own conceptions, all of which was done with little regard for the interests of the Empire. But as the economic theories of the earlier part of the seventeenth century with regard to colonization found formal and definite expression in law by the passage of the acts of trade and navigation of the Restoration period, then English statesmen came to a thorough realization of the defects of the early charters. It became obvious that the development of the colonies toward self-control must be checked.^ Their separatist and independent tendencies came clearly to light in the case of the New England colonies, especially Massachusetts.^ They were charged with passing laws contrary to the statutes of Parliament, with transgressions of the laws of trade, with denying appeals to England, and with a general tendency toward independence. In the very year that Penn received his charter, that of Massachusetts was threatened with judicial proceedings grounded on such irregularities. With these facts fresh in mind, it is not hard to understand the reasons which led to the insertion of provisions in Penn's charter looking to an intimate supervision of colonial concerns by the central government.

Pirst,^ provision was made for a strict observance of the acts of trade by the requirement that the proprietor should appoint an agent to reside in London ready to answer before the English courts for any violations or will-

1 Osgood, Amer. Cols, in 11th. Cent., Ill, 22-24, 515-521.

3 Thorpe, Amer. Charters, Constitutions, etc., V, 3035-3044; Poore, Charters and Constitutions, II, (2d. ed.) 1509-1515; Pa. Col. Recs., I, 17-26.

INTRODUCTION 3

ful neglects permitted by Penn or his heirs against the laws. This agent was required to pay within a year any damages awarded by the courts, and if for the space of a year Penn neglected to provide an agent or if he failed to make payment, the government of the province might be resumed to the crown until the obligations were fulfilled. Second, provision was made for the exercise of the royal veto on colonial legislation by the requirement that all laws should be submitted to the Privy Council within five years after enactment, such laws to remain in full force if not acted upon under the privy seal within six months after delivery. Third, the right of the colonists to appeal from the decisions of the colonial courts to the king was expressly guaranteed. Fourth, the right of the imperial Parliament to exercise concurrent jurisdiction with the colonial assembly in the matter of levying taxes in the colony was maintained by the clause that no taxes or impositions could be levied ** unless the same be with the consent of the pprietary, or chiefe Governour and assembly, or by Act of Parliament in England." No provision was made for colonial representation in the English Parliament. Fifth, the right of the bishop of London to appoint ministers for the colony, upon application to him by the inhabitants thereof to the number of twenty, was clearly stated, and that these appointees should be allowed to reside in the colony, '' without any deniall or molestation whatsoever." This was an express guarantee of the bishop's jurisdiction in a dissenting colony. Tliis group of provisions put Pennsylvania in close touch with the home government and placed the colony on a footing unlike that upon which stood the other charter colonies as far as English control was concerned. Through the royal veto and appeals pressure could be brought to bear to make colonial development conform to English ideals, the supremacy of Parliament in matter of taxation was clearly affirmed, a due observance of the acts of trade was provided for, and finally, the interests of the Anglican Church were carefully guarded.

In other respects the Quaker colony was made a fief or proprietorship on much the same lines as those created in Maryland or Carolina. On the territorial side Penn and his heirs were constituted " true and absolute Propriataries " within the area set by the charter, which was erected into the " Province and Seigniore " of Pennsylvania, to be held of the crown by free and common socage at a nominal yearly rent. Penn was at liberty to grant or lease the lands to settlers in fee simple or fee tail, and under such services and rents as seemed best to him. All lands were to be held of the proprietor and not of the crown. To Penn was given power to erect manors, towns, and counties, to incorporate cities and boroughs, and to constitute all ports. An equal share of governmental powers was bestowed upon him. Penn and his heirs, or their deputies, were granted authority to make laws for the province with the advice and consent of the freemen or their deputies. Thus a modicum of participation in government was given to the freemen of the colony, but under serious limitations. The qualifications of freemen, the nature of the assembly as well as the time and place of meeting, were questions not provided for by the charter and therefore were left to the determination of the proprietor or to the force of circumstances. Moreover, the proprietor was given the power, modeled upon that possessed by the royal prerogative, to issue ordinances without the consent of the freemen, in times of emergency or when it was not deemed expedient to call together the people. Ordinances were required to be agreeable to English statutes, and could not deprive the inhabitants of life and property. This power gave the proprietor or his governor a way to legislate without popular consent, and in fact, there were times when the governor availed himself of this authority to offset a refractory legislature.

INTRODUCTION 5

The proprietor was authorized to appoint all officials necessary for the due execution of the laws and to constitute all courts without limitation as to kind for the administration of justice. Finally, Penn, though as a Quaker he preached the iniquity of all war, was created a captain-general with all the powers pertaining to that office and was empowered to levy, muster, and train the inhabitants for military service and employ them in defensive war for the security of the province. Such, in a general way, was the system of government devised by the charter for the colony, — a system thoroughly undemocratic in character. The people were subject to prerogative power exercised either directly by the crown or placed in the hands of private individuals. The proprietor was both the absolute lord of the soil and the source of all political power, and the crown by reason of the veto power and appellate jurisdiction formed part of the legislative and judicial machinery of the province. This subjection to royal control will appear still more clearly in the light of the system of colonial administration devised by the English statute of 1696.

The tightening of the machinery of administration originated chiefly in a realization of the futility of depending upon officials outside the sphere of royal control to enforce the imperial laws.* The home government at first seemed content to rely upon the machinery of government devised under the royal charters, thus placing the execution of the laws in the hands of officials over whom the crown enjoyed slight control. Upon the governors devolved the duty of caring for the registry of ships, of granting bonds, of inspecting certificates and invoices, and, in general, of enforcing obedience to the laws of trade. Upon the judiciary of the colonies fell the office of punishing transgressors of the laws. This decentralized system threw the burden of executing imperial

4 Osgood, Amer. Cols., Ill, 210 ff.; Andrews, Col. Self-Gov't., 31-40.

policies upon officials who, under the conditions, could refuse to enforce them or only imperfectly comply. Few royal customs officers had been present in the colonies till the passage of the act of 1672 which levied a duty upon the exportation of enumerated comjnodities to other colonies. Thereafter, as occasion demanded, royal customs officials were appointed for the colonies.^ These officials forced to rely upon the local government for assistance encountered insurmountable difficulties in the path of their duties. The evidence of such royal agents as Randolph, surveyor-general of the customs, Nicholson, a royal governor, and others is of one piece on this point. The local courts, both judges and jurors, believed to be prejudiced in favor of illegal trade, consistently refused to condemn breaches of the law.^ The governors of the chartered colonies were found to be men of inferior ability who countenanced illegal trade and piracy.'^ In fine, the experience of the royal agents is replete with instances where the colonies by their laws and actions effectually and indirectly counteracted the laws of trade. At the same time it was found that the customs service itself called loudly for a thorough reorganization. Many of these officials were of an indifferent sort, and the performance of the duties of their office was fearfully lax. Randolph became painfully aware of this deplorable condition on his survey through the southern colonies in 1692.® Moreover, it may be said that the prevalence of illegal trade is good audi sufficient evidence of the inadequacy of the existing system to enforce the laws of trade. One cannot read the records of the time without being impressed with the large amount

5 Andrews, Col. Self-GovH., 32-34.

INTRODUCTION 7

of illegal trade.^ That between Scotland and the colonies in contravention of the laws of trade was especially large.^*^ It was under such circumstances that English imperialists realized that it was necessary to institute reforms in the system of administration and to restrict the powers of government in the chartered colonies in the interest of home control.^^ Such was the purpose of the act of 1696.^^ It was of capital necessity in order to secure a maximum of efficiency in colonial administration.

In the main the act of 7 and 8 William III, chapter 22, was an administrative measure intended to correct the evils laid bare in the colonial system. It required that all governors of chartered colonies should receive royal approbation and take the oaths enjoined by the acts of trade before entering upon the duties of office. Neglect to take the oath or neglect of the duties imposed upon the governors by the laws carried a penalty of dismissal from office and a fine of £1000. The naval officer, the governor's agent in matters of trade, was obliged within two months after his entrance upon office, to give security to and be approved by the Customs Board in England. Until these obligations were absolved the governor was held liable for the neglects of his agent. To the Lords of the Treasury or its subordinate board, the Commissioners of the Customs, was given power to constitute such ports

10 Keith, Economic Causes for the Scottish Union (English Hist. Rev., Jan., 1909) ; also Scottish Trade with the Plantations (Scottish Hist. Rev., Oct., 1908) ; House of Lords Mss., n. s., II, 441-442, 462-463, 465-466; Cal. State Paps., Col., 1685-1688, 353-354; 1693- 1696, 323, 510, 519; 1689-1692, 657-660.

i^ Jour, of House of Commons, XI, 188, 195; Jour, of House of Lords, XV, 611; Cal. State Paps., Col., 1693-1696, 279-280, 308, 321, 399; B. T. Paps., PI. Gen., IV, pt. 1, A 16.

12 For the details in regard to the passage of the act of 1696, see Jour, of Commons, XI, 409, 440, 501, 505, 523; Jour, of Lords, XV, 712, 714, 720, 732; House of Lords Mss. n. s. II, 233-234; Cal. State Paps., Col., 1693-1696, 639-640.

and customs officials in any places in the colonies as seemed needful to them. The customs establishment in America was put upon the same footing as that in England by clothing the officers with the same power and authority and placing them under the same penalties for maladministration. Provision was made for the trial of breaches of the acts of trade in vice-admiralty courts to be established in the colonies. Finally, the supremacy of Parliament was maintained by the clause which declared null and void all colonial laws and customs contrary to English laws, passed or to be passed, in which the colonies were mentioned. It was also during this movement for reform that the English merchants expressed dissatisfaction with the management of colonial affairs in England. The colonial business was in the hands of a committee of the Privy Council, known as the Lords of Trade. This resulted in the creation of the Board of Trade and Plantations by royal commission of May, 1696, whose members should be experts in matters of colonial business.

Legislation looking to reform was now secured and that prompt execution of the law should follow was a matter of pressing necessity. The Customs Board, the newly created Board of Trade, Randolph, surveyor-general for the colonies, and Parliament itself, acted vigorously to this end. A system of vice-admiralty courts with royal officials was settled in the colonies; the customs service was increased and put upon an orderly footing; governors were obliged not only to be approved by the crown and to take the oath to obey the acts of trade, but were also required to give security for the due performance of their duties as agents of the crown in matters of trade; naval officers were required to give security; new and detailed instructions with regard to the acts of trade were issued to the governors and royal officials. Such was the system inaugurated for centralizing and making more efficient and complete colonial administration. It meant an abridgment

INTRODUCTION 9

of the powers of the charters in several points. The full power to appoint or elect their governors, to establish ports, and to constitute all manner of courts was now curtailed by the force of the act of Parliament.

When we consider therefore the peculiar provisions of Penn's charter together with the provisions of the act of 1696 we are able to see clearly the intimate relation between the colony and the central government. In the light of these facts it may not be deemed unprofitable to study the working out of these relations, notwithstanding the fact that Pennsylvania was governed under a charter and not directly by the crown. Before 1696 the provisions of the charter were apparently not enforced, but the inception of the new system and the infusion of new vigor into colonial control witnessed an effort to require obedience to the requirements of the charter. Moreover, these relations between colony and mother country take on an added significance when viewed in several other respects. The long series of wars between England and France for colonial and commercial supremacy in North America involved the colony as part of the Empire in the important question of imperial defense. The development of the Anglican Church in the colony in the eighteenth century brought on a bitter conflict between the Quakers and Churchmen over matters of religion, which took on the nature of a struggle between a dissenting colony and the state-church system in England. Moreover, we note the increased activity of Parliament in colonial matters after the Revolution of 1689, legislating for the colonies in a number of ways. In fine, in matters of trade, war, religion, finance, justice, legislation, both local and imperial, the will of the home government was felt in the colony.

From the standpoint of the colonists all this meant a greater subjection to a system not of their own choice and a decrease in local self-control; a subserviency of distinctly local interests and desires to the interests and needs of the Empire. Furthermore, it is essential to bear in mind that the government provided for the colony by the charter was monarchical in character. Hence, if the proprietary system had adhered closely to the lines laid down in the charter and had the imperial system been enforced to the full, the province would never have become democratic. But the social and economic conditions precedent for the effectual establishment of a monarchical and imperial system were not present.^^ Soon after the founding of the province, the living forces of democracy, favored by the benevolent attitude of the first proprietor toward popular rights, finding themselves out of sympathj^ with proprietary and imperial interests and hampered in their growth toward self-control by outside authorities, at once took up the task of transforming the government in the direction of greater autonomy.^* The relations of proprietors to the people as lords of the soil and the source of political power brought on bitter and prolonged struggles over questions of popular rights and proprietary interests and power, which form much of the staple of colonial history.^^ But in this larger struggle the fact must not be forgotten that there was also an opposition to royal control and imperial interests as well. The people were working in the direction of independence from any outside power whatsoever. This study is an attempt to make clear the interaction and opposition of conflicting interests and ideals. As a result of this conflict of opposing forces emerges the American Revolution and the disruption of the Empire.

13 Osgood, Amer. Cols, in nth. Cent., II, 13-15.

15 Wrote Franklin in 1764, " Pennsylvania had scarce been settled Twenty Years, when these Disputes began between the first Proprietor and the Original Settlers; they continued, with some Intermissions, during his whole Life; his Widow took them up, and continued them after his Death. Her Sons resum'd them very early, and they still subsist." Works, (Smyth ed.) IV, 227-228.

Chapter Two

It is obvious that a knowledge of the central institutions of government as organized to deal with colonial affairs is requisite to a proper conception of the colonial system of administration. Some idea of the nature and functions of the organs of imperial control will not only help to an understanding of the manner in which colonial business was transacted at home, but also to some appreciation of the legal and political relations which existed between the mother country and the colonies. This subject for the sake of convenience of treatment readily divides itself into two parts, executive and legislative control.

The crown was the chief branch of the English government concerned with the colonies. The organs through which executive control over the colonies was exercised were the king, the Privy Council, the Secretaries of State, the Lords of the Treasury, and the Lords of the Admiralty. Besides these departments of state, the royal power was exercised through subordinate boards, such as the Board of Trade and the Commissioners of the Customs. Chief among the executive boards was the Privy Council, which included the great ministers of state and some not otherwise holding office. Although many of the powers of the prerogative over the colonies were placed in the hands of the high officers of state, yet the Privy Council never parted with two important functions. One the legislative function of expressing approval or disapproval of colonial enactments, the other the judicial function of hearing and determining appeals from the colonial courts, powers which the council enjoys to this day.^ The council performed its work chiefly through committees, such as the Committee for Hearing Appeals, and the Committee for Plantation Affairs.^ Professor Andrews points out that these were not standing or separate committees, *' but the same committee, that is, the whole Council sitting under different titles. " ^ In fact, for the two decades prior to 1696 the management of colonial business was placed in the hands of a committee of the whole council, known as the Lords of Trade.*

The usual form in which the Privy Council expressed its will was the *' order in council." Osgood says, ^' Within the sphere of the executive they hold a position of importance corresponding to that of the statute within the province of the legislature." Such orders were issued concerning a variety of matters which came properly within the competence of the council, whether it was a minor matter of referring business to another office or the important function of appointing a royal governor or expressing a decision on a colonial law or appeal.

Besides the Privy Council, much of colonial management was vested in the offices of the Secretary of State, the First Lord of the Treasury, and the First Lord of the Admiralty. They were great ministers of state, sworn of the Privy Council, and members of the Cabinet, the inner circle of the council. These offices, like the council itself, existed for the realm as well as the dominions and were the representatives of royal authority within their respective departments, acting in the name and on behalf of the crown. In the sphere of war and foreign relations

■i^Acts of Privy Council, Col., 11, vi-vii, 826-853; III, 840-853.

2 Ihid., II, vi-vii.

3 Andrews, in Amer. Hist. Rev., XVI, 120-121; Acts of Privy Council, Col., Ill, viii-ix.

4 Andrews, British Committees, Commissions, etc., Johns Hopkins Studies, XXVI, 111-113; Acts of Privy Council, Col., I, II; Journals of Lords of Trade, 8 vols., Feb., 1675 to April, 1696.

the colonies fell chiefly under the administration of the secretary of state for the southern department and the secretary at war.^ This control was considerable when it is remembered that during the period of 1689 to 1763, England was involved in a long series of wars and diplomatic negotiations with France. On these matters the civil and military officials in the colonies corresponded chiefly with the secretary of state, and from him they received orders to proclaim war or peace, to raise troops and military supplies, and on allied matters.^ In the field of colonial patronage the secretary of state also enjoyed considerable power. Even in times of peace a general oversight of colonial administration came within the purview of this office. The royal governors corresponded with him on almost all matters of ordinary concern,^ and to the secretary were referred many petitions and memorials from the colonies. From 1696 to 1724 this post was held by no less than thirteen successive incumbents with an average tenure of a little over two years each. Under conditions which made the secretaryship subject to the vicissitudes of party politics and rapidly changing ministries, continuity of administration was possible only because of the permanency of the under-secretaries. From 1724 to 1748 the office was held continuously by the Duke of Newcastle. Horace Walpole in his memoirs has accused Newcastle of an extreme negligence of colonial business and of an ignorance of colonial affairs, but it may be said that a closer inquiry into this matter will probably show that his attention to colonial management was greater than is