Before the election took place, it was discovered that the number proposed for the council was much larger than could be selected, and that a general gathering of the inhabitants would not furnish such an assembly as the organization of the government demanded. On the suggestion of Penn twelve persons, therefore, were elected from each of the six counties; and through their respective sheriffs the freemen petitioned the Governor that as the number of the people was yet small, and but few were acquainted with public business, those chosen should be accepted to represent them in both council and assembly,—three in the former, and nine in the latter. The Council met at the appointed time, the petitions of the freemen were duly presented by the sheriffs, and the prayers granted by the Governor. It was then moved by one of the members that, as the charter granted by the Governor had again fallen into his hands by the negligence of the freemen to fulfil their part, he should be asked that the alterations which had been made should not affect their chartered rights. The Governor answered that “they might amend, alter, or add for the Public good, and he was ready to settle such foundations as might be for their happiness and the good of their Posterities.” Those selected for the Assembly then withdrew, and, although the time for them to meet had not arrived (March 12), chose Thomas Wynne their Speaker, and proceeded to business. During the session an “Act of Settlement,” reciting the circumstances which made these changes necessary, and reducing the number of members of the Provincial Council and Assembly, was passed by the House, having been proposed by the Governor and Council. By the Frame of Government first agreed upon, Penn had surrendered his right to have an overruling voice in the government, reserving for himself or representative a triple vote in the Council. Fearing that his charter might be invalidated by some action of the majority of the Council and Assembly, he now asked that the veto power should be restored to him, which was accordingly done. The right to appoint officers, which by the first Frame had been vested in the Governor and Council, was given to Penn for life. Other laws necessary for good government were enacted, and to the whole the Frame of Government was appended, with modifications and such alterations as made it applicable to the Delaware counties. On April 2, in the presence of the Council, Assembly, and some of the citizens of Philadelphia, Penn signed and sealed this new charter, solemnly assuring them that it was “solely by him intended for the good and benefit of the freemen of the province, and prosecuted with much earnestness in his spirit towards God at the time of its composure.” It was received by the Speaker of the Assembly on behalf of the freemen; and in their name that officer thanked the Governor for his great kindness in granting them a charter “of more than was expected liberty.”
All that had been irregularly done was thus in a manner legalized; but the matter was not allowed to pass unquestioned. Nicholas More was reprimanded by the Council for having spoken imprudently regarding the course which had been taken, and for saying that hundreds in England and their children after them would curse them for what they had done.
Under the constitution and laws thus formed, the government was administered until 1696. The chief features of local government which had existed under the Duke of York were lost sight of in the new order of affairs, the authority being vested in the provincial or county officers in place of those of the township. True to the doctrines which they had preached, and to the demands which they had made of others, the Quakers accorded to all a perfect liberty of conscience, intending, however, “that looseness, irreligion, and Atheism” should not creep in under pretence of conscience. The observance of the Sabbath was provided for. On that day people were to “abstain from their usual and common toil and labor, ... that they may better dispose themselves to read the Scriptures of truth at home, or frequent such meetings of religious worship abroad as may best suit their respective persuasions.” Profanity, drunkenness, health-drinking, duelling, stage-plays, masques, revels, bull-baiting, cock-fighting, cards, dice, and lotteries were all prohibited. Clamorous scolding and railing were finable offences. The property of thieves was liable for fourfold the value of what they had taken; and if they should have no estates, they were to labor in prison until the person they had injured was satisfied. A humane treatment of prisoners was insured. The poor were under the protection of the county courts. Peacemakers were chosen in the several counties to decide differences of a minor character. Malt liquors were not to be sold at above two pennies sterling for a full Winchester quart. The court records were to be kept in plain English characters, and laws were to be taught in the schools.
“All judicial power, after Penn’s arrival, was vested in certain courts, the judges of which were appointed by the Proprietary, presiding in the Provincial Council.[781]
“The practice in these courts was simple but regular. In criminal cases an indictment was regularly drawn up, and a trial by jury followed. In civil cases the complications of common-law pleading were disregarded. The filing of a simple statement and answer put each cause at issue, and upon the trial the rules of evidence were not observed. Juries were not always empanelled, the parties being frequently content to leave the decision of their causes to the Court. In equity proceedings the practice was substantially that in vogue in the Court of Chancery, simplified to suit the requirements of the province.
“Large judicial powers were also vested in the Provincial Council,—a state of things not infrequently observed in the early stages of a country’s growth, before the executive and judicial functions of government have been clearly defined. Prior to the establishment of the Provincial Court, all cases of great importance, whether civil or criminal, were tried before the Council. The principal trials thus conducted were those of Pickering for coining, and of Margaret Mattson for witchcraft. The latter terminated in a verdict of ‘guilty of having the common fame of being a witch, but not guilty in manner and form as she stands indicted.’ This is the only regular prosecution for witchcraft which is found in the annals of Pennsylvania. Prior to the establishment of the Provincial Court, the Council also entertained appeals in certain cases from the inferior courts. Subsequent to 1684, however, the extent of its judicial power was limited to admiralty cases, to the administration of decedents’ estates, which, although more properly the business of the Orphans’ Courts, was often neglected by those tribunals, and to the general superintendence and control of the various courts, so as to insure justice to the suitors.[782]
“The legal knowledge among the early settlers was scanty. The religious tenets of the Society of Friends rendered them very averse to lawyers, and distrustful of them. There was, therefore, comparatively little demand for skilled advocates or trained judges. John Moore and David Lloyd were almost the only professional lawyers of the seventeenth century. Nicholas More, Abraham Man, John White, Charles Pickering, Samuel Hersent, Patrick Robinson, and Samuel Jennings, with some others, however, practised in the courts with some success; but by insensible degrees, as population increased and the commercial interests of the community grew more extensive and complicated, a trained Bar came into existence.”[783]
Markham not having agreed with Baltimore, 1681, regarding the boundaries of Pennsylvania and Maryland, the two met again in September of the following year at Upland, and Penn visited the latter at West River, Dec. 13, 1682. In May, 1683, Penn again met Lord Baltimore at New Castle, on the same business, but nothing was decided upon. This dispute was a consequence of the lack of geographical information at the time their grants were made. Baltimore’s patent was for the unoccupied land between the Potomac and the fortieth degree of latitude, bounded on the east by Delaware Bay and the Atlantic Ocean, with the exception of that part of the Delaware peninsula which was south of a direct line drawn from Watkin’s Point on the Chesapeake to the sea. The southern boundary of Penn’s province was the fortieth degree and a circle of twelve miles around New Castle. When both patents were issued, it was supposed that the fortieth degree would fall near the head of Delaware Bay; but it was afterward found to be so far to the northward as to cross the Delaware River at the mouth of the Schuylkill. If the letter of the Maryland charter was to interpret its meaning, Penn would be deprived of considerable river frontage, which it was clearly the intention of the Lords of Trade to grant him; and he insisted that the boundary-line should be where it was supposed the fortieth degree would be found. This was resisted by Baltimore, who claimed ownership also to that part of the peninsula on the Delaware which Penn had received from the Duke of York. To enforce his claims, Baltimore sent to the Lords of Plantation a statement of what had taken place between Penn and himself. He also ran a line in his own interest between the provinces, and offered to persons who would take up land in the Delaware counties under his authority more advantageous terms than Penn gave. In 1684 Baltimore sent Colonel Talbot into the disputed territory to demand it in his name, and then sailed for England to look after his interests in that quarter.
Penn, when he learned all that had been done, wrote to the Lords of Trade, giving his version of the transaction; but before long he found the business would require his presence in England. Having empowered his Council to act in his absence, he sailed August, 1684.