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After the proprietors had succeeded in obtaining the repeal or modification by the Board of Trade of a number of acts passed by the assembly in 1759,3 they fully intended, in order to keep the executive and legislative departments distinct, to allow the assembly to appoint only those officers whom by charter it was permitted to select.4 But the opposition was too
1 " Putting in the words ' governor by the king's royal approbation,' in an act is unnecessary, as that doesn't give him any power, is not generally used, and had better be omitted." P. L. B., ii, T. P. to J. Kinsey, March 30, 1748. " Your expression ' by the king's paternal authority ' is a little too royal." Ibid., viii, to Gov. John Penn, March 9, 1764.
2 Penn MSS., Supp. Proc., T. P. to Peters, Sept. 27, 1755.
3 " Do not exult over the repeal of the laws, as we wish to use it to restore a good understanding among the people. We have no intention to seize any powers but what the government at home avow we have a just right as representatives of the king, and as necessary for the good order and government of the people under our care." P. L. B., vii, T. P. to Barton, March 12, 1761 ; to Hockley, April 13, 1761.
4 " The executive part of government is too weak already, and, as often as an assembly meets, they will desire to throw something into the popular scale." P. L. B., ii, T. P. to Hamilton, July 31, 1749. " It is a matter of concern to me that party rage should have so far blinded the bulk of the people, that they should not see their security consists in preserving a proper balance of power between the two branches of the legislature, that they may be a check on each other, so that the one may always be able to defeat any schemes the other may form to the injury of the people." Ibid., v, to Benj. Chew, Dec. 12, 1757. " I would sooner resign a government into the hands of the crown, by whose ministers I have been offered a very full consideration, and had it many times mentioned to me, than suffer the lawful and necessary power of the crown, committed to the care of my family, to be any further usurped by the assembly." Ibid., to W. Logan, June 21, 1757 ..
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strong for them to make headway against it. They took some meagre satisfaction, however, in the opinion of the Board that dispatches should be sent to them as governors-in-chief. This. statement they ordered to be published broadcast in Pennsyl- vania, as it was hoped it would have weight with the people, who were accustomed to regard the Penns not as governors,. but only as landlords.1
1 " We will have ourselves mentioned as occasion may offer, and not suffer our governors to speak as if we did not govern the province, as the assembly are pleased to say." Ibid., iv, to Peters, May 8, 1756. " I know of no Thomas. Penns, and Richard Penns, nor shall I ever on any consideration of saving trouble or expense to myself, yield to their leveling principles." Ibid., to Hamilton,. Sept. 7, 1756. Also, Penn MSS., Supp. Proc., to Peters, Jan. 12, 1760, v. v .. May 9, 1761.
CHAPTER IV
THE FRAMES OF GOVERNMENT
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THE royal charter was the basis of the provincial constitu- tion. In outlining the powers given by this instrument to William Penn, we have noticed that he was authorized to call upon the freemen to assist him in the work of government. In conjunction with them and by virtue of the power bestowed upon him by the crown, he issued in 1682 and 1683 certain frames of government, and in 1701 a charter of privileges. These were grants in the form of constitutions issued by the proprietor and accepted by the freemen. The act of settle- ment of 1696, popularly known as Gov. Markham's frame of government, was a statute enacted by the deputy governor and the assembly, and was designed to be supplementary to the frame of 1683. It is proposed in this chapter to trace the origin of the first frame of government, and the transition from that to the frames subsequently issued. At the same time we shall see how Penn in his personal relations with the colonists gradually lost the kindly and fatherly influence he had hoped to possess over them.
In endeavoring to ascertain the origin of the first frame of government, it was found necessary to have recourse to a volume of the Penn MSS. entitled, " Charters and Frames of Government." In this volume are preserved a number of documents which show the attempts of Penn and of his friends or associates in the project of colonization to form a system of government which, while embodying all that was valuable in the old systems of the world, should also contain several novel provisions. Here are to be found rough drafts not only of
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frames of government, but also of the " Laws agreed upon in England." The fact that many of the sentences are crossed out and rewritten, sometimes in the same, sometimes in a differ- ent handwriting, and that, with one exception, no dates or names are attached by which a clue to the authors might be secured, makes it almost impossible to arrange these embryonic schemes of government in anything like a logical order. But a careful study of the contents of this manuscript volume would indicate that the origin of the suggestions, and the order in which they were made, were as follows. Some features of the plans proposed seem to have been derived from Harrington's Oceana.
At the outset the declaration of the proprietor to Robert Turner,I " that he had long desired to observe and reprove mischiefs in government, and that for matters of liberty and privilege he proposed that which was extraordinary, and to leave himself and successors no power of doing mischief, that the will of one man may not hinder the good of a whole coun- try," was taken advantage of in a very literal sense. For the first draft of a constitution for the province declared that the government should consist of a senate composed of two houses, in the upper of which the proprietor might have two votes, and " no other power in the government, or over the state." The membership of the upper house should be limited to the first fifty persons and their heirs, who had purchased from Penn a share or propriety of 5,000 acres. But whenever the number of acres held by one of these purchasers should be re- duced to less than 2,000, his " baronage should cease." In this case the remaining members might make provision to fill the vacancy. The lower house should consist of representa- tives, each of whom should be annually elected by the tenants of an area of 20,000 acres. By a majority vote in each house the senate was to pass laws not repugnant to those of England,
1 Passages from the Life of William Penn, p. 243.
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nor subversive of the just rights of the proprietor. But any person could offer "that which was for the good of the state." The upper house alone should hold sessions and adjourn at pleasure. It should annually appoint all officers, both in church and state. It should also appoint committees of an equal number of "lords and tenants " to superintend financial and military affairs, and, " to rectify old laws and prepare new ones." Lastly, it should be empowered "to inquire into and punish all misdemeanors, by impeachment or otherwise, even in the proprietor himself." Of course this last provision did not meet with Penn's approval, for in another series of sug- gestions of a similar character, the words "in the proprietor himself" are significantly omitted.1
Then a scheme appears to have been submitted which bore a greater resemblance to the one finally adopted, though the conditions of membership in the house of proprietors were the same as in the first plan. Provision was now expressly made that the proprietor might discharge his duties through a deputy, who should have the aid and advice of a council. The name parliament, also, takes the place of senate as the designa- tion of the legislature, and it was proposed to call the upper house " the court or house of proprietors," and the lower, the assembly. The number of members in the former was in- creased to seventy, while the assembly should consist of two hundred freeholders elected by those who paid scot and lot, or who possessed fifty acres of land. It was expressly stated that the governor should preside in the house of proprietors, and should have three (not two) votes. The assembly should choose a speaker, and should have the right to impeach offi- cials before the house of proprietors. A two-thirds, instead of a simple, majority in each house should be required for the passage of laws. In this scheme appears for the first time the proposal that, when appointments were to be made, either the
1 Penn MSS., Charters and Frames of Government.
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one house of the legislature or the other should present to the governor the names of double the number of persons re- quired to fill the places, and from these the chief magistrate should make his selection. The Quaker mind seems to have revolted against the idea of a council appointed by the executive alone, and in this document it was proposed that each house of the parliament should name twenty-four per- sons, and from the forty-eight thus nominated, the governor should select his twenty-four councillors. Another hint of what was to appear in the first frame is the suggestion that the council be divided into three committees of eight. The first should supervise "peace and justice," the second " trade and treasury," and the third the " civil education and manners of the people." Each of these committees, moreover, should ren- der an annual report to parliament. One-third of the council, i. e., four from each house, should go out of office yearly, and all questions arising in parliament should be determined by ballot.I Then appear the religious and moral qualifications for office so characteristic of Puritans as well as Quakers. They were that all officers and members of parliament should be "such as professed faith in Christ, and were of good fame for a sober and honest life." Whenever needful the governor and six-sevenths of each house of parliament could amend the constitution.2
One of the persons interested in these projects of govern- ment now presented a series of objections to the above. He dwelt on the dangers incident to making the possession of large tracts of land the sole condition of membership in the upper house. He cited the House of Lords as a body in which rank and honor were combined with the possession of land to form the conditions of membership. He thought that
1 Rotation in office and the use of the ballot were regarded by Harrington as essentials of an "equal commonwealth." Harrington, The Commonwealth of Oceana (Ed. by Morley), pp. 39-40.
2 Penn MSS., Charters and Frames of Government.
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the number of proprietors in the province would not be suffic- ient to form an upper house, and that until 1690 the number of freeholders would also be too small for such an assembly. Moreover, until the province should become well populated, the owners of 5,000 acres would probably sit personally in the upper house. But when owing to increase of numbers it might be found necessary to send representatives, he declared that then the proprietors who were to sit in person, and those who were to send representatives, should be carefully distinguished and specified. In this connection also he expressed the opin- ion that, on account of the similarity of the powers vested in the two houses of parliament, grave disputes between them might arise. Thereupon a more elaborate scheme of govern- ment was proposed. As before, the government should con- sist of governor, council and parliament. The membership of the house of proprietors was increased to one hundred, but it was provided that all the members should be professed Chris- tians and should be married.2 To fill vacancies in the house of proprietors, the idea of presenting to the appointing officer or body double the number of persons required for that pur- pose again appears. Or, should the persons chosen by the house of freemen to fill the vacancies in the house of proprie- tors be unsatisfactory to that body, the governor should nomi- nate double the number of persons requisite, and from them the house of freemen might make the necessary selection. With regard also to the appointment of officers by the gov- ernor, the powers of nomination possessed by both houses are similar to those of the preceding frames. Provision, however, was made for the election of certain local officers. Moreover, all officers upon their accession to office should give, instead of an oath, a reasonable bond, and subscribe a declaration that they would perform their duties. Officers generally were to
1 " Suggestions concerning the parliament, by T. R., January 13, 1682." Ibid. 2 Cf., Harrington, p. 99.
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be subject to removal by parliament with the consent of the governor, and their commissions were to be issued in the king's name, and signed by the governor.
The house of freemen should be composed of not less than two hundred married professed Christians, and disputes about the election of its members should be referred to a committee of the house of proprietors. With the exception that bills concerning taxation and revenue should originate in the house of freemen, the legislative equality of the two houses should be complete. But no law should be made to infringe the civil liberties of the people granted by Magna Charta, the Petition of Right and the Habeas Corpus Act; nor the rights of the proprietor, his heirs and assigns, as granted by the king. That this provision was not intended wholly to exclude legislative interference with the independence of the proprietor is shown by the provision that upon his death, and during the minority of his heirs, parliament should choose the executive. If the proprietor did not wish to reside in the province, parliament should select two persons of whom he should choose one to serve as governor. In addition to its regular legislative duties, parliament furthermore should assume the direction of admin- istrative affairs. But when it was not in session, this branch of government should be entrusted to the governor and council. As before, the governor should have three votes in the house of proprietors. He should dissolve parliament at the close of its sessions ; and, with the consent of the council, he might also call a special session of parliament. Moreover, "to the end that choice may be made freely without fear from any except God, and to avoid contention and confusion, all questions ex- cept in the council and courts of justice, or in the appointment of officers by poll, should be by the balloting-box as it is used at Gresham College, or as the governor and council shall direct." Provision was also made for an extensive judicial system, comprising the usual county courts, a provincial court, and a supreme court of seven judges, one appointed by the
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governor, three by the house of proprietors, and three by the house of freemen. If, however, the supreme court should de- cide that any case, by reason of its importance or difficulty, deserved further consideration, an appeal lay to the governor and parliament. The scheme of government concludes with some paternal suggestions concerning matrimony, the main- tenance of poor relatives, and the punishment of evil-disposed persons by their being put out to terms of service. At the end is a statement to the effect that amendments to the frame might be made by Penn and six-sevenths of each house of parliament, and that Penn promised to govern in accordance with it.I
Up to this point it appears that Penn had patiently listened to the plans proposed by his associates. Now he comes forward with views of his own. They are called the " fundamental con- stitutions of Pennsylvania " and are twenty-four in number.2 The document begins with loose moralizings about the nature and end of government, which reveal a strongly humanitarian spirit, but no systematic thought on the subject. They are of the same general character as those which appeared later in the form of the preface to the first frame of government.3 They start with the assumption that the interests of governors and the governed are the same. An attempt is then made to define government as a "constitution of good laws wisely set together for the good ordering of people in society."4 Then the proprietor, pursuing the same line of thought as in the "preface," insists that government is but a means to an end, viz. : the public good-hence, the necessity of considering what frame of government will "preserve magistracy in rever-
1 " For a conclusion of all we declare that we hold it our glory that the law of Jehovah shall be the supreme law of Pennsylvania. Ordained by William Penn so far as in him lies, by and with the advice and approbation of the proprietors and freeholders of the said province, so far as in them lies, the - day of -, in A. D. 1681." Penn MSS., Charters and Frames of Government.
2 Ibid.
3 Charter and Laws of Pa., pp. 91-93.
+ Cf. Harrington, p. 16.
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ence with the people, and best keep it from being hurtful to them."I An error in this will injuriously affect all succeeding generations. The trend of his thought was that the proprie- tary system should be modified by ideas from other systems, particularly the Jewish, permeated by a strong Christian and humanitarian spirit. In the first proposition appears the state- ment of what Penn considered to be the highest purpose of government, a statement which probably embodied the deepest conviction cherished by the Quaker mind concerning the sub- ject. It was that government should secure to every person the "free enjoyment of his religious opinions and worship, so long as it did not extend to licentiousness, or to the destruc- tion of others, that is to speak loosely or profanely of God, Christ and the Scriptures, or religion, or to commit any moral evil or injury against others." In this liberty of conscience every person should be protected by the civil magistrates. Similar provisions with regard to religious toleration appear in the " Laws agreed upon in England,"2 in the "Great Law " passed at Chester, December 7, 1682,3 and in the charter of privileges of 1701.4 Closely connected with Penn's insistence on the moral nature and purposes of government was his demand that laws for the prevention and correction of vice and injustice should be vigorously and impartially executed. Passing from the higher and more general considerations to the specific details of government, Penn proposed the opinion that the province should be divided into twenty-four counties, each county into four hundreds, and each hundred into two tribes.5 The tribe should be the local election district, where the freeholders annually without regular summons from the governor should elect by ballot two persons "of best repute for virtue, wisdom and integrity." But until the province was
1 For a similar expression see preface to the first frame of government. Charter and Laws of Pa., p. 93.
2 Sec. 35, Ibid., p. 102.
+ Col. Rec., ii, p. 57.
3 Chap. i, Ibid., p. 107.
5 Cf., Harrington, P. 79.
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well inhabited, the sixteen representatives might be elected from the county at large. These 384 persons should consti- tute the assembly, the powers of which were to be as ample as those of the House of Commons in England. The strength of the democratic spirit in Penn, and his resolve that the gov- ernment should serve the people, is well illustrated in the pro- posal that each member of assembly should bring instructions from his constituents. A record of these instructions should be kept in every tribe, and if any representative dared to " be- tray his trust," he should never again be allowed to hold office, unless the people were sure of his repentance and forgave him. Neither should any law be passed or repealed until the wishes of the constituents were known. As to the formation of the council, the assembly should choose from among its members two persons from each county, whose places should be imme- diately supplied by election from the tribes affected. One- fourth of the council, and consequently one-fourth of each of the committees into which it was divided, should retire yearly by lot. It should sit with the governor, distinct from the assembly, and should be considered the upper house. The two houses should possess equal powers in legislation. The council should receive from the assembly any legislative busi- ness that body might choose to present. After sufficient delib- eration thereon, it should hold conferences with the assembly until an agreement was reached. Then the bills should be pre- sented to the governor for his approval, but no law should be put into execution until the general assembly was dissolved. "All bills agreed upon by the council and the assembly, not infring- ing the rights of the proprietor either in his just share in the government or his property, which were all along intended to be acknowledged, secured and confirmed, and were hereby ac- knowledged and confirmed, and not contradicting the funda- mental constitutions or just rights of the people, should within fourteen days after their presentment to the proprietor or his lieutenant, if he gave not his assent, stand good as if assented
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to." When the assembly was not in session, the council should advise and assist the governor. For the performance of its administrative duties the council should be divided into four committees, differing only slightly in name and function from. those which appear in the frame of 1682.
Another instance of the peculiar method of appointing offi- cers is found in the suggestion that the freemen of every tribe. should present yearly to the governor the names of two per- sons to serve as justices of the peace, while the county at large should do the same with regard to the position of sheriff. If within twelve days he had made no selection, lots should be drawn for the office, or the first person named might have it. After various provisions concerning the holding of county courts, and other matters of minor importance, the rights of free-born Englishmen were guaranteed to the people, and the document concludes with the declaration that, if the governor or his lieutenant " by evil insinuation and pernicious counsel, or by those in power or esteem with him, or from his mistak- ing the true extent of his authority, or possibly by the instiga- tions of his own ambition, should demand or require any offi- cers or magistrates to do anything contrary to the fundamentals, or any law duly made," the officer should disregard any such order, or be accountable to the assembly for his misdemeanor. It was also stated that, at the opening of each session of the general assembly, the constitutions should be read and as- sented to in a prescribed form.I
In some respects these propositions appear not to have given satisfaction. But after a number of suggestions had been made, it was agreed that the government should consist. of the governor and a grand assembly or parliament of two houses elected by the freemen of the province. The upper house called the senate or council should consist of seventy2
1 Penn MSS., Charters and Frames of Government.
2 Cf., Harrington, P. 33.
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men, " most eminent for virtue, wisdom, and substance." The lower house or assembly for seven years should be composed of all the freemen, and after that time of three hundred men "eminent, honest, and fit for government." In the decision of legislative matters the ballot should be used. The council also should be subject to the usual principle of rotation, and, as the standing council of the governor, should be in continual session. Now appears for the first time a proposition which, as practically embodied in the frame of government of 1682, was the cause of much controversy in the province. It was this: "The work, service, and duty of the first house shall be to prepare, draw up, and propose all matters, laws, and public concerns of the grand assembly; and the work, service and duty of the second [house] shall be to determine or resolve in the affirmative or negative thereto."I As before, the governor should preside in the upper house, and should have three votes. In case of the death of the proprietor, the council should appoint a guardian for his heir, if an infant, who should also act as governor until the heir became of age. With re- gard to the appointment of officers, it was provided that dur- ing the life of the proprietor they should be appointed directly by him. But after his death the method of presentation should be adopted .? During the life of the proprietor also this frame of government should be in the keeping of himself and twelve of the principal landholders, whose number should by co-optation remain perpetual. These twelve persons should be known as the " conservators " of the charter. Hence, if any law or ordinance should be declared by them contrary to the charter, it should immediately become null and void.3
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