case of appeals; for this reason doubtless, that they do in any sort withstand the same: that in case any act of injustice or oppression was committed, the party injured might be sure of redress. By the sixth, which presumes, that in the government of so great a country, sudden accidents might happen, which would require a remedy before the freeholders or their delegates could be assembled to the making of laws, the said William Penn, and his heirs, by themselves or their magistrates duly ordained, are impowered to make and constitute fit and wholesome ordinances, from time to time, as well for the preservation of the peace, as for the better government of the inhabitants, under the same proviso as that above, regarding the laws, and so as that the said ordinances be not extended in any sort to bind, change, or take away the right or interest of any person or persons, for or in their life, members, freehold, goods, or chattels. And to the end, that neither the said William Penn or his heirs, or other the planters, owners, or inhabitants of the said province, may, by misconstruction of the power aforesaid, through inadvertency, or design, depart from their faith and allegiance to the crown, the seventh section provides, that a transcript or duplicate of all laws, so made and published as aforesaid, shall within five years after the making thereof, be transmitted and delivered to the privy council for the time being: and if declared by the king in council, inconsistent with the sovereignty or lawful prerogative of the crown, or contrary to the faith and allegiance due to the legal government of this realm, shall be adjudged void. The said William Penn is also obliged to have an attorney, or agent, to be his resident representative, at some known place in London, who is to be answerable to the crown for any misdemeanour committed, or wilful de fault or neglect, committed by the said Penn against the laws of trade and navigation; and to defray the damages in his majesty's courts ascertained; and in case of failure, the government to be resumed and retained till payment has been made; without any prejudice however in any respect to the landholders or inhabitants, who are not to be affected or molested thereby. and, on the contrary, enjoins them, to be at all times aiding and assisting, as was fitting to the said William Penn and his heirs, and unto the inhabitants and merchants of the province aforesaid, their servants, ministers, factors, and assigns, in the full use and fruition of the benefit of the said charter. And in the last place, a provision is made, by the king's special will, ordinance, and command, that, in case any doubt or question should thereafter perchance arise, concerning the true sense or meaning of any word, clause, or sentence contained therein, such interpretation should be made thereof and allowed in any of his majesty's courts, as should be adjudged most advantageous and favourable to the said William Penn, his heirs and assigns; provided always, that no interpretation be admitted thereof, by which the allegiance due to the crown may suffer any prejudice or dimunution. The whole consists of twenty-three sections; of which it is presumed, these are the most material. They are penned with all the appearance of candour and simplicity imaginable; so that, if craft had any thing to do with them, never was craft better hid. As little is left as possible to future instructions, and no where is there to be found the shadow of a pretence, that such instructions should be laws. All is equally agreeable to law and reason, the claims of the crown and the rights of the subject; nor, indeed, would the grant have been valid if it had been otherwise. The words legal government are words of great significancy.-No command of the king's is a legal command, unless consonant to law, and authenticated by one of his seals:-the forms of office in such case providing, that nothing illegal shall be carried into execution; and the officer himself being responsible to the laws in case of yielding a criminal obedience. It would therefore be a waste of words to show, that the crown is limited in all acts and grants, by the fundamentals of the constitution; and that, as it cannot alienate any one limb or joint of the state, so neither, on the other, can it establish any colony upon, or contract it within a narrower scale, than the subject is entitled to by the great charter of England. His majesty, moreover, covenants and But if it is remarkable, that such an ingrants to and with the said William Penn, instrument as this should be the growth of an the twentieth section, for himself, his heirs arbitrary court, it is equally so, that the and successors, at no time thereafter, to im- king's brother, James, duke of York, (afterpose or levy any tax on the inhabitants in wards the most unhappy of kings) was at the any shape, unless the same be with the con- rebound, a party in it; for it seems, the right sent of the proprietary or chief governor, or to all that tract of land now called the terassembly, or by act of parliament in England. ritories of Pennsylvania, was, by a prior grant, On pain of his highest displeasure, he also vested in him; and, in August, 1682, he ascommands all his officers and ministers, that signed it by his deeds of feoffment to the said they do not presume at any time to attempt William Penn. any thing to the contrary of the premises, or It may also be inferred, that the said Wil liam Penn had been as diligent in collecting a number of proper adventurers together, as in obtaining the necessary authorities from the crown: for in the interval between the charter and the grant, he made use of the provisional powers given him by the sixth section of the former, to pass his first deed of settlement under the title of "Certain conditions, or concessions, agreed upon by William Pend, proprietary and governor of Pennsylvania, and those who are the adventurers and purchasers in the same province." This, however, contains only rules of settlement, and of trade with, and treatment of the Indians, &c. with the addition of some general injunctions for preserving of order and keeping the peace, agreeable to the customs, usages, and laws of England. In the next year following, Mr. Penn printed and published a system of government, under the following title, to wit, "The frame of the government of the province of Pennsylvania in America: together with certain laws agreed upon in England, by the governor and divers freemen of the aforesaid province. To be farther explained and confirmed there by the first provincial council, if they see meet." At the head of this frame, or system, is a short preliminary discourse, part of which serves to give us a more lively idea of Mr. Penn preaching in Gracechurch-street, than we derive from Raphael's Cartoon of Paul preaching at Athens: as a man of concience he sets out; as a man of reason he proceeds, and as a man of the world he offers the most plausible conditions to all, to the end that he might gain some. Two paragraphs of this discourse, the people of Pennsylvania ought to have for ever before their eyes: to wit, 1. "Any government is free to the people (whatever be the frame) where the laws rule and the people are a party to those laws: and more than this is tyranny, oligarchy, or confusion." 2. "To support power in reverence with the people, and to secure the people from the abuse of power, that they may be free by their just obedience, and the magistrates honourable for their just administration, are the great ends of all government." This frame consisted of twenty-four articles, and savoured very strongly of Harrington and his Oceana. In the governor and freemen of the province, in the form of a provincial council, (always in being and yet always changing,) and general assembly, the government was placed. By them conjunctively, all laws were to be made, all officers appointed, and all public affairs transacted. Seventy-two was the number this council was to consist of: they were to be chosen by the freemen; and, though the governor or his deputy was to be perpetual president, he had but a treble vote. One third of them was, at the first, to be chosen for three years, one third for two years, and one third for one year; in such manner that there should be an annual succession of twenty-four new members, &c. The general assembly was at first to consist of all the freemen, afterwards of two hundred, and never was to exceed five hundred. The laws agreed upon in England were in all forty; partly political, partly moral, and partly economical. They are of the nature of an original compact between the proprietary and the freemen, and as such were reciprocally rcceived and executed. But in the following year the scene of action being shifted from the mother country to the colony, the deportment of the legislator was shifted too. Less of the man of God now appeared, and more of the man of the world. One point he had already carried against the inclination of his followers; namely, the reservation of quit-rents, which they had remonstrated against as a burden in itself, and, added to the purchase-money, was without precedent in any other colony: but he artfully distinguishing the two capacities of proprietary and governor; and insinuating, that government must be supported with splendour and dignity, and that by this expedient they would be exempt from other taxes; the bait took, and the point was carried. To unite the subtlety of the serpent with the innocence of the dove is not so easily done as said. Having in this instance experienced the weight of his credit and the power of his persuasion, he was no sooner landed, than he formed a double scheme for uniting the province with the territory, though it does not appear he was properly authorized so to do, and to substitute another frame of government in lieu of the former, which having answered the great purpose of inducement here at home,* for collecting of subjects, he was now inclined to render somewhat more favourable to himself in point of government. Of much artifice we find him accused (by the provincial assembly of 1704, in a representation addressed to himself) in the whole course of this proceeding; whether justly or not let the world determine. They tell him, for example, in so many words, "That we find by the minutes of the assembly and other papers, as well as living witnesses, that, soon after thy first arrival here, thou, having obtained the duke's grant for the three lower counties [the territory that is to say] prevailed with the people of the province to unite in legislation and government with them of the lower counties; and then by a subtle contrivance and artifice, laid deeper than the capacities of some could fathom, or * England, where this Review was first published. and condition, that whenever the crown had assumed that government, or the people there revolted, or refused to act with us in legislation, as they often did, that then the said second charter should become impracticable, and the privileges thereby granted of no effect to the province, because the representatives of the lower counties were equal in number with those of the province, and the charter required a greater number than the province had, or by charter could elect for members of council and assembly; and our numbers, by the charter, could not be increased without the revolter's consent." In the interval between this session at Chester, in December, 1682, and the next at Philadelphia in March and April, 1683, Mr. Penn, notwithstanding the act of settlement, furnished himself with another frame, in part conformable to the first, in part modified according to the said act; and in part essential the circumstances of many could admit them time then to consider of, a way was found out to lay aside that, and introduce another charter, which thou completed in the year 1683." At a place called Chester, in December, 1682, the freemen both of the province and territory were convened; but those of the province having, by election, returned twelve persons to serve for each county as members of the provincial council, were induced to accompany that return with significations and petitions by their sheriffs, &c. importing that because of the fewness of the people, their inability in estate, and their unskilfulness in matters of government, their desire was, that the twelve so returned for each county, might serve both for provincial council and general assembly; that is to say, three of each twelve for members of council, and the remaining nine for assembly-men; with the same powers and privileges granted by the charter or frame of government to the whole: and ac-ly different from both: and concerning this cording to these significations and petitions of theirs, an act of settlement was drawn up and passed, in which, after the said charter or frame has been artfully mentioned as one of "The motives which we find upon record, those probationary laws, which by the coun-inducing the people to accept of that second cil and assembly might be altered at plea- charter, were chiefly two, viz. That the numsure, the model of the said council and assem- ber of representatives would prove burdenbly so reduced is admitted; the persons so re- some to the country: and the other was, that, turned are declared and enacted to be the le-in regard thou had but a treble vote, the peogal council and assembly; the number of the ple, through their unskilfulness in the laws said council is fixed at three persons out of of trade and navigation, might pass some each county for the time to come; the num- laws over thy head repugnant thereunto, ber of assembly-men for each is reduced to which might occasion the forfeiture of the six; and, after a variety of farther regulations, king's letters patent, by which this country the said charter or frame is solemnly recog-was granted to thee; and wherein is a clause nised and accepted: as if with these alterations and amendments it was understood to be complete. The act for uniting the province and the territory humbly besought, as it is therein specified, by the deputies of the said territory, was also passed at the same time and place; in virtue of which all the benefits and advantages before granted to the provincials, were equally communicated to both; and both from that time were to be as one people under one and the same government. Of this act, however, the provincial assembly of 1704, in the representation to their proprietary before cited, complain in the terms following: "And as to the conveniency of the union of the province and lower counties, we cannot gainsay it, if the king had granted thee the government as the duke had done the soil: but to our great grief and trouble, we cannot find that thou had any such grant; and if thou had, thou would not produce it, though often requested so to do: therefore we take it the harder that thou, who knew how precarious thy power was to govern the lower counties, should bring thy province into such a state again, the assembly of 1704, in their representation aforesaid, thus freely expostulate with the proprietary: to wit, for that purpose, which we find much relied upon, and frequently read or urged in the assembly of that time; and security demanded by thee from the people on that account." "As to the first motive, we know that the number of representatives might have been very well reduced without a new charter : and as to the laws of trade, we cannot conceive that a people so fond of thyself for (their) governor, and who saw much with thy eyes in those affairs, should, against thy advice and cautions, make laws repugnant to those of trade, and so bring trouble and disappointment upon themselves, by being a means of suspending thy administration; the influence whereof and hopes of thy continuance therein, induced them, as we charitably conclude, to embark with thee in that great and weighty affair, more than the honour due to persons in those stations, or any sinister ends destructive to the constitution they acted by. Therefore, we see no just cause thou had to insist on such security, or to have a negative upon bills to be passed into laws in general assemblies, since thou had by the said charter (pursuant to the authority and direction of the king's letters patent aforesaid) formed those assem blies, and, thereupon reserved but a treble vote in the provincial council, which could not be more injurious to thee than to the people, for the reasons aforesaid." And again, afterwards; "Thus was the first charter laid aside, contrary to the tenor thereof, and true intent of the first adventurers; and the second charter introduced and accepted by the general assembly held at Philadelphia, in the first and second months, 1683, where thou solemnly testified, that what was inserted in that charter was solely intended by thee for the good and benefit of the freemen of the province, and prosecuted with much earnestness in thy spirit towards God at the time of its composure." In less than three years after Mr. Penn's arrival in the province, and when it began to wear a thriving face, a dispute between lord Baltimore, proprietary of Maryland, and him, furnished him with a pretence to return to England; leaving the government to be administered by five commissioners of state, taken out of the provincial council, the remainder of that council, and the general assembly. James II. was now on the throne: Mr. Penn was attached to him closely by obligations, if not by principles: that prince's impolitic plan of restoring the Roman ritual by universal toleration, seems to have been almost inspired by him in the king's dispute with the fellows of Magdalen college, Mr. Penn was an active instrument on his majesty's behalf, not without some injurious imputations to himself: and for some years after the revolution, had the misfortune to lie under the suspicions and the frowns of the government. His nursling-colony was yet in the cradle, while it was thus deserted; consequently stood in need of all expedience to facilitate its growth, and all preservatives against disorders. the proprietary power as might awe the majority into proprietary measures. Thus John White, the former speaker, who signed the letter from the assembly to Mr. Penn, concerning the misdemeanours of More, was no sooner returned for the county of Newcastle, than he was thrown into prison, and by violence wrested out of the hands of the assembly, after he had been brought up to Philadelphia by habeas corpus. The said governor also finding that the said assembly was not of the proprietary complexion, and that they were disposed to open the session with a discussion of grievances, found pretences for several days to evade giving them audience, all either frivolous or groundless; and in the mean time, left no stone unturned to temper the council to his own mind; and then by their concurrence, to make a suitable impression upon the assembly. The assembly, however, not only retained their firmness, but also took care to leave the two following memorials of it in their minutes to wit, May 14. That whereas this assembly have attended here for several days, and have sent several messengers to the governor and council, appointed to confer with the members of assembly according to charter: and whereas the said messengers have given this house to understand, that they were answered by the governor, that there was not a full council to receive them: and, whereas this house being well assured, that there is, and has been, for these two days last past, a competent number of members in town, ready to yield their attendance, yet several of the said members have not been hitherto permitted to sit in council, to the great detriment and grievance of the country: therefore, we desire, that these grievances may be speedily redressed, and our liberties inviolably preserved." On the last of these two days, and previous to the last of these votes, the governor at length favoured them with the meeting desired; and thereat made a speech, in which are the following remarkable paragraphs: viz. May 15. "That no person who is commissionated or appointed by the governor to reDisorders it actually fell into, which are ceive the governor's fines, forfeitures, or revestill to be traced in the minutes of their as-nues whatsoever, shall sit in judgment in any semblies: one More in particular, we find court of judicature within this government, in impeached by the assembly before the pro- any matter or cause whatsoever, where a fine vincial council, of misdemeanour in ten several or forfeiture shall or may accrue to the goarticles, and, in a letter to the proprietary, vernor." signed by John White, speaker, represented as an aspiring and corrupt minister of state. We find the assembly and provincial council at variance about their respective powers and privileges; what is more extraordinary still, we find the proprietary, in 1686, requiring and enjoining his said commissioners to dissolve the frame of government by his late charter constituted; and they not being able to carry this point, we find, in December, 1688, a deputy-governor appointed, captain John Blackwell, who, like a practised man, set out with endeavouring to sow dissensions among the freemen, and by making such a display of "I suppose you have been formerly acquainted with the reasons and necessity of the proprietary's absenting himself so long from you as till the late revolutions in England; he hath frequently evidenced his strong desire above all things to be restored to you: what hath hindered of late, we have from the divers reports of things transacted in England, which require we should wait for their being rendered more certain; and, in the mean time, I should be proposed, they could not take effec strive in our prayers, that the Lord, who governs this universe, will do it in his wisdom and good will, towards all his suffering people, and ourselves in particular. "I suppose, gentlemen, you expected some bills should have been sent down to you from the provincial council, for your consideration, before your coming up and passing them into laws at this meeting. Divers reasons might be why none were; I shall acquaint you with some of them: viz. "1. The honourable proprietary, for reasons known to himself, hath given positive directions for letting all the laws drop or fall, except the fundamentals, and afterwards for calling together the legislative authority, to pass such of them, or others, as they should see fit for the future; which is my full intention to do. among us as laws, till his pleasure should b therein declared; I came to a resolution with in myself, of observing them in the course of my government, as so many rules and instruc tions given me by my master, as far as I should find and judge them not contrary to the law of England, and in supplying the want or de fect in your laws by the laws of England which I believe will be most grateful to ou superiors in England, especially at this time and will be as useful among ourselves, ther being no other way occurring to my under standing whereby you may receive the benefi of them: and in this purpose I am ready, un less you should otherwise advise, until by bet ter information out of England, we shall be led out of these state meanders." The assembly answered, among othe things, as follows: viz. "We heartily wish that thy design in coming hither, with all imaginable respect to ou governor and inhabitants here, may be pur sued accordingly with suitable measures and we cannot but have that opinion of our worthy governor's tender regard to the people here, that as he will justify no unbecoming behaviour in us towards his representative, să we hope he will vindicate no unlawful or ri gid procedure against us. As to our governor' absence, we are very sensible that, as it may be to his disappointment, so it is extremely to our prejudice. Were we in expectation of re "2. The honourable proprietary, being by his patent from the king, authorized by himself, his heirs, &c. with consent of the freemen, to make, and under his seal to publish, necessary laws for the good of the people; which had never been done with all requisite circumstances, whilst himself was here; and without which, I must doubt whether what were passed, or should hereafter be passed, have that due sanction or establishment which laws require; and finding the great seal, under which they should pass, was not to be had, the keeper thereof refusing to allow the use of it in any cases by my direction, I therefore look-ceiving bills from thee and the council as for ed upon it as labour in vain to attempt it. "3. The present posture and alteration of affairs in England; the uncertainty touching the condition of the proprietary himself, and his power and the fears of what dangers might ensue, as well to him as ourselves, in passing and confirming laws of such a nature, as would have been approved of in this conjuncture of affairs, forbad it. "4. The animosities and dissensions which were here amongst you before I came, and have been lately revived amongst the members of the provincial council, by the endeavours of some, as to their proceedings in that service, hindered their agreement in council, as to doing any thing; insomuch as I was constrained, for love and peace sake, upon that and the other foregoing considerations, to dismiss them from further attendance on that ac count. "5. An expedient occurred to me, of less danger to us all: viz. that I, being by my commission, as aforesaid, referred for my rule and instructions to the laws then in being, and which had been, as well by the proprietary as people, approved and owned as such, whilst he was amongst you here, and observing that he had reserved the confirmation and disannulling of what laws should be made in his absence, to himself; so that if any were or merly; to the reason thou art pleased to give why none are sent, that the proprietary and governor hath given directions for letting all the laws drop or fall, we are credibly inform ed, that afterwards he was well pleased they should stand; and all the laws made here since his departure, were sent for his perusal. and none of them, to our knowledge, in the least declared void by him; neither do we conceive that he hath any reason so to do. "As to the establishment of laws, we expected nor aimed at any higher sanction than was used in the governor's time; but in case bills had been prepared and promulgated according to charter, and had passed by us into laws, and the great seal had been necessary and the same duly required to be applied to the said laws, and the keeper refused the same, then we might justly blame such refusal: but as to the way thou mentions, that our proprietary and governor is authorized by himself, and with consent of the freemen, to make laws, and under his seal to publish them, and not in the granted way of the charter and act of settlement; as we do not desire, so our hopes are, that no laws of that make will be imposed upon us: and had we made laws at this time, as formerly, we ques tion not but that they had been as inoffensive in the present conjuncture, as afore: and we |