USA > Pennsylvania > History of proprietary government in Pennsylvania > Part 20
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1 Cf., Harrington, pp. 29-31, 35, 39-40, 44, and Locke's " Fundamental Constitutions of Carolina," Sec. li; Carroll, Historical Collections of S. C., ii, P. 375.
2 A similar provision may be found in Section xvi. of the frame of government of 1683. Charter and Laws of Pa., p. 158.
3 Penn MSS., Charters and Frames of Government. A curious resemblance
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e
These suggestions appear to have met with general ap- proval, and they were practically embodied in the frame of government of April 25, 1682.1 In addition to the frame a series of agreements called the " Laws agreed upon in Eng- land"2 was also ten days later entered into by Penn and his associates. The first article of these laws states that the " charter of liberties declared, granted, and confirmed * * * by William Penn, governor and chief proprietary of Pennsylvania, to all the freemen and planters of the said province, is hereby declared and approved, and shall be forever held for funda- mental in the government thereof, according to the limitations mentioned " therein. But to the preamble of the frame was. prefixed the statement, that both the frame and these laws should be further explained and confirmed by the first provin- cial council to be held in the province.3
Whatever satisfaction the frame of government may have given to the majority of Penn's associates, it was by no means pleasing to Benjamin Furly, a personal friend of the proprietor, and the promoter of the first German emigration to America. His critical comparison of the frame with the twenty-four " fun- damental constitutions," is worthy of note, as showing the clearness with which he saw the impracticability of the scheme.
may be noticed between this provision and one to be found at the close of the first constitution of the commonwealth of Pennsylvania, Sept. 28, 1776. The latter provided that every seven years a council of censors should be elected to serve for the space of one year. Its duties should be to ascertain whether the constitution had been preserved in every part; whether the executive and legis- lative branches of government had done their duty, and had usurped no powers ; whether taxes had been properly levied and collected, how public money was expended, and how the laws were executed. As a result of its investigations, it could pass a vote of censure, order impeachments, recommend to the legislature the repeal or amendment of laws, or call a constitutional convention. Poore, State and Federal Constitutions, p. 1548.
1 Charter and Laws of Pa., pp. 94-98. 2 Ibid., pp. 99-103.
3 " The charter made in England was but probationary." Penn and Logan Corresp., ii, p. 17.
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"I far prefer," said he, "thy first draught," i. e., the constitu- tions, "to this last, as being most equal, most fair, and most agreeing with the just, wise, and prudent constitutions of our ancestors. * Indeed I wonder who should put thee upon altering them for these' and as much how thou couldst ever yield to such a thing. Especially after thou wert so much satisfied in them as to charge all thy children, and theirs, to love and preserve them as being the establishment of thee their father and ancestor, as the discharge of thy conscience to God the giver of this country to thee and them, and as they hope to keep it and His blessing upon it. As much do I wonder that any of the freeholders that had subscribed them with much clearness and satisfaction as the ground and rule of all future laws and government, promising every one for himself that, by God's assistance they would remember, love and preserve them to the utmost of their power, as fundamentals, inviolably, charg- ing their posterity to do the same, as they hope to enjoy what they should leave them, and the blessing of God with it."
1 From the materials at hand it is impossible to tell what led to the change, for the " fundamental constitutions " are certainly nearer the Quaker ideals. It is possible, however, that the large, landholders among Penn's associates supposed that they would constitute the council, and for that reason believed that the power to prepare and propose laws to the assembly would strengthen their position and dignity. The frame of government provides that they should be elected by the freemen in the same way as were the representatives for the assembly, but with this difference, viz., they should be men of most note for virtue, wisdom, and ability, while no qualifications are prescribed for members of assembly. In the first place all the schemes of government which have been examined provide that the upper house should consist of the large landowners. Penn's " funda- mental constitutions " alone suggest otherwise. Secondly, the word " ability " in Penn's time meant wealth. Thirdly, Capt. Markham, who was well acquainted with the whole proceedings, distinctly states that the associates of the proprietor, " unless pleased, and granted whatever they wanted, would not have settled his country " (Gordon, Hist. of Pa., p. 63). For these reasons it may be regarded as probable that the frame of government is a concession to the large landholders, who by their position as councillors might in their powers of legislation dominate the assembly, and in their powers of administration as well as legislation, dominate the governor, i. e., the proprietor.
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In the first place he criticised that part of the frame which provided that the assembly should be deprived of the power to prepare bills, and of the right to adjourn itself. He thought that to give the exercise of these powers to the council was to divest " the people's representatives (in time to come) of the greatest right they have, and will lay morally a certain founda- tion for dissension." "For the people of England," said he, " can never by any prescription of time be dispossessed of that natural right of propounding laws to be made by their repre- sentatives." Mr. Furly apparently overlooked the fact that, as the council was elected by the people, it represented them, strictly speaking, as truly as did the assembly. He believed that, to have a great nation forbidden the passage of laws, ex- cept such as the council should see fit to propose, was incon- sistent with public safety, and would bring destruction upon those who advocated the plan. In order to guard against the liability of corruption by an unscrupulous governor, who with his three votes might find many opportunities to gain an un- due influence, he preferred that the council should be elected every three months, either by the general assembly, or by the people.
In this connection he urged that the powers of the governor in the council be limited by express words to three votes, thus barring out the possibility of the use of the veto. He declared that in the appointment of judges the assembly should nomi- nate two persons for the office, and that of these the council, and not the governor, should make the selection. Moreover, he thought that the committees of the council should be sub- ject to the supervision of the assembly. He suggested there- fore that the assembly should possess the powers and privi- leges granted by the " fundamental constitutions," and that "the provincial council whether of 48 or 72 [should be] brought to its place, there allotted to it." He disapproved strongly of the omission in the frame of any provision for the responsi- bility of representatives to their constituents. He thought
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that seventy two might be a proper number of representatives, but he did not want the frame to continue till the population should be large enough to furnish five hundred representatives. Hence, he proposed that the frame should be put into opera- tion only for a certain number of years, at the end of which time it might be amended or abolished by two-thirds of both houses. This was to offset the provision in the frame which declared that amendments could be adopted only with the con- sent of the governor and six-sevenths of the freemen, "be- cause," said he, "it binds our posterity forever, and gives the governor a negative voice." I
The powers of government were by this frame of 1682 vested in the governor and freemen, and those of the latter should be exercised in two representative bodies, the provincial council and the general assembly. The governor was to be the presi- dent of the provincial council and of the standing council, and should act as chairman of its committees. As president of these, and by virtue of the fact that he was the proprietor or his representative, the governor was of course the chief execu- tive officer of the province. In the provincial council the gov- ernor had three votes, but no mention is made of his possess- ing the right of veto either over the acts of the council, or of the assembly, or of the two acting conjointly. In order to start the government going, the proprietor declared in the frame that he would appoint judges, treasurers, masters of the rolls, sheriffs, coroners, and justices of the peace, to hold office during good behavior. But there is no provision in the docu- ment authorizing the governor to perform any act independ- ently of the council. In case the proprietor were under age, the council might appoint three guardians for him, one of whom with the consent of the other two should perform all the duties of governor during the period of minority. The council appears in two forms, the provincial council or council
1 Penn MSS., Ford vs. Penn, " B. F. Abridgment out of Holland and Germany. Laws of Gov't Pense."
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in full session, and the standing council. The provincial council was to consist of seventy-two members elected by the freemen. They should be the men most noted for wisdom, virtue and ability. This body, with the governor as its presi- dent, was empowered to propose and lay before the general. assembly all bills that it thought should be enacted into law .. These bills were to be published thirty days before the meet- ing of the general assembly, the people thus being given an: opportunity to form and express their opinion concerning: them. Hence this frame affords one of the proofs that the idea of the referendum existed in the seventeenth century .. Besides its power to initiate legislation, the provincial council was charged with the execution of the laws, the establishment of courts of justice, the preserving of the peace, and the up- holding of the constitution of the province, the management of the public treasury, the founding of cities, ports, and towns, and the building of highways, the erecting of schools, and the encouragement of literature, science, and invention. Once a year the council should present to the governor a list of double the number of persons required to serve as judges, treasurers, and masters of the rolls, and from this within three days he must make the selection, otherwise the first named. should be entitled to the office. It had also the right of sum- moning and dissolving the general assembly. These were the duties of the council in general session, or the provincial coun- cil proper. But for the better exercise of its functions, the council was empowered to divide itself into four committees of eighteen members each.' The first was a committee of planta-
1 In the " fundamental constitutions," the duties of the four committees of coun- cil were the following : The first committee should supervise the administration of justice. The second should have charge of trade and manufactures, and should take all means needful to prevent fraud and corruption in business transactions,. and to suppress begging by employment of the poor. The third should control the public treasury, subject to the general assembly. The fourth and last commit- tee should " inspect the conversation of the people and the breeding of youth," and should direct the management of schools, and the cultivation of the fine arts .. Ibid., Charters and Frames of Government.
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tions. It was to have charge of the location and settlement of cities and market towns, the opening of ports, the building of highways, the settlement of plantations, and the hearing and de- ciding of all suits concerning them. The second was a commit- tee of justice. It was to maintain the peace and punish those who sacrificed public to private interest. The third was a com- mittee of trade and finance, with power to encourage agriculture and manufactures, to regulate commerce according to law, while the expression, "defray the public charge of the province," would seem to imply that it should have immediate control under law of its revenues and expenditures. The fourth was a committee of manners, education, and arts, upon which was specially devolved the duty of restraining immorality and pro- moting virtue. One-third of the members of each of these committees was to constitute its quorum, and the quorums to- gether were to form the standing council of twenty-four mem- bers. This being a quorum of the provincial council, should exercise all the powers that belonged to that body, except in those affairs of greater moment, the consideration of which must be in the presence of two-thirds of its members. Such were the organization and powers of the first body through which the freemen were to act. Its independence of the gov- ernor was secured by the provision that it should sit upon its own adjournments.
The general assembly for the first year was to be a meeting of all the freemen of the province, called to establish the govern- ment and accept the laws. But thereafter it should consist of two hundred members, and, if necessary, the members might be increased in time to five hundred. These should be annually chosen by the freemen at the times and places of electing the pro- vincial council. But the regulating of such elections was left to future legislation. The functions of the general assembly were clearly subordinate to those of the provincial council. It could impeach criminals before the council, while in legislation it had the right to propose amendments to the bills laid before it by
*
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the council, and finally to approve or reject them. These are all the powers specifically mentioned as belonging to it. The position of inferiority assigned to the assembly in the frame, is made clear by the provision that it should be called and dis- missed by the council. The inference from the document is, that the two bodies were to sit as separate and distinct houses, and such became the practice. The frame of govern- ment could be amended only by the consent of the governor and of six-sevenths of the provincial council and of the general assembly.
Taking up now somewhat in detail the history of the pro- vince, so far as it bears on the development of the frames of government, we have noticed in the discussion of the land sys- tem that the proprietor, April 10, 1681, commissioned Capt. Markham as deputy governor, and ordered him to call a council to consist of nine persons. But little is known of their action, except that government was established at Upland.1 On Oc- tober 27, 1682, the proprietor himself arrived in the Delaware, and landed at Newcastle. Having made arrangements for the government of Newcastle and adjacent places, Penn called the first assembly of the province at Upland. On November 18, he sent writs to the sheriffs of the respective counties requir- ing them to "summon all freeholders to meet on the 20th instant, and elect out of themselves seven persons of most note for wisdom, sobriety, and integrity to serve as their deputies and representatives in general assembly, to be held at Upland in Pennsylvania December 6th next."2 No members for the provincial council were chosen, nor was the council organized till March 10 of the following year. On the day appointed the assembly met at Chester (the name given by Penn to Upland), and elected as chairman Nicholas More, president of the Free Society of Traders. The first regular business was the ap- pointment of a committee of elections and privileges, another of justice and grievances, and still another to " prepare pro-
1 Hazard, Annals of Pa., P. 535. 2 Ibid., p. 603.
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vincial bills." At the same time among the rules adopted by the assembly was the following : that any member could pro- pose bills, except those which dealt with the levying of taxes.I On the third day of the session the assembly received from the proprietor copies of the " Laws agreed upon in England," and ninety bills called the "written laws or constitutions." After some discussion sixty-one of the latter were embodied in the " great law or body of laws of the province of Pennsyl- vania.2 As soon as the laws were disposed of, the members from the Lower Counties desired to return home. A debate on the question followed. The chairman thought this desire for adjournment was uncomplimentary to the proprietor, and en- deavored " after a divine manner " to induce the obstinate members to appreciate Penn's " condescension." But the pro- prietor later agreed to the adjournment.3
On February 20, 1683, Penn ordered a general election to be held for the purpose of choosing seventy-two persons to serve as members of the provincial council, and directed that, when the council was convened, all the freemen should meet at Philadelphia in general assembly. Prior to this time, how- ever, Penn had seen the impossibility of carrying out the pro- visions of the frame of government relative to the number of the council. He told Markham4 that twelve persons must be chosen by each county in accordance with his writs to the sheriffs, but that later petitions might be sent to him to allow three of them to serve in the council, and nine in the assembly. In order to secure the rotation in office required by the frame, he stated that the petitions should declare which one of the three persons was elected for three years, which one for two years, and which one for a year. Hence it is probable that, if this violation of the frame was not suggested by Penn him-
1 Votes, i, pt. i, pp. 1, 3.
2 Charter and Laws of Pa., pp. 107-123, 478-481; Proud, Hist. of Pa., i, p. 207; Col. Rec., i, pp. 276-277.
3 Votes, i, pt. i, p. 6.
4 Pa. Mag. Hist., vi, p. 466.
.
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self, he was at least instrumental in bringing it about. In fact it is not unlikely that the whole thing was arranged before the council met. With the return of the sheriffs came the petitions expected, in the form proposed by the proprietor. The reasons given were the slender population, the unfitness of most of it to discharge public duties, and its inability to sup- port a larger representation." The truth of one of Furly's criticisms is thus made apparent. After these petitions had been read in the council the frame of government was also read. At length it was agreed that the reasons set forth in the petitions were valid, and it was determined that the seventy- two persons had full power to sit both as councillors and mem- bers of assembly in the manner designated. But the proprie- tor was requested that this alteration of the provisions of the frame of government should not deprive the people of the other rights given therein, to which request Penn replied that " they might amend, alter, or add for the public good, and that he was ready to settle such foundations as might be for their hap- piness, ** * according to the powers vested in him."2 The ac- tion of the council was not satisfactory to every one. Nicholas More gave his opinion of it in no measured terms. He as- serted that the members of the council had acted in a grossly unconstitutional manner. He declared that they had broken the charter, and that hundreds in England would curse them for it. He further denounced their conduct as treasonable in character, believed the evil effects of it would be visited upon them and their children, and said that on account of it they would be liable to impeachment. More was called before Penn and the council to answer for these rash statements. He pleaded that he had raised the question of illegal action rather than asserted it, but his conduct was pronounced by the council unreasonable and imprudent, and he was dismissed with a reprimand.3
1 Hazard, Annals of Pa., p. 603.
2 Col. Rec., i, p. 58. 3 Ibid., P. 59.
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As we have already seen, the frame of government was not suited to the existing condition of affairs. The first objection lay in the absurdly large number of members in council and assembly. A second objection was, that the rights of the as- sembly in legislation were too limited. Here again the criti- cism of Furly is most pertinent. The lower house desired to have the right to originate measures.1 With regard to this matter the council agreed to hold a conference with the as- sembly. One member of the assembly then moved that the power of that body to discuss at length bills sent to it from the governor and council should be considered. Several members held the view that the " house presuming to take that power seemed too much to infringe upon the governor's privileges and royalties, and to render him ingratitude for his goodness towards the people." They agreed that the " governor's good will and demeanor towards the people being considered, they were all in duty bound rather to restore that privilege in his too great bounty he had conferred upon them, viz., of having the power of giving a negative voice to bills proposed unto them by himself and the provincial council, than to endeavor to dimin- ish his power." The silence of the other members was the first severe shock to the proprietor. Penn began dimly to realize that the harmony he had hoped to see firmly maintained be- tween himself and the people, was soon to be impaired. Not long after, the speaker of the assembly referred to its consid- eration "the good disposition and wisdom of the governor," while a member called its attention to the " undeserved reflec- tions and aspersions cast upon the governor, which the gov- ernor himself and all good members and subjects did not without cause resent as evil from any subject, but especially proceeding from any of the members of assembly." Then the
1 " A very good proposal was made by a member of the house, that it might be requisite by way of petition, or otherwise, to move the governor and provincial council that the house might be allowed the privilege of proposing to them such things as might tend to the benefit of the province." Votes, i, pt. i, p. 7.
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proprietor asked the assembly what counter security it would give him, in case by enacting laws contrary to the royal charter, it should cause the same to be forfeited. At the same time he dwelt upon the fact that, "out of his great love and kindness, he had granted the people a charter, whereby they had the privilege of establishing laws themselves, and of giv- ing a negative voice to all bills preferred unto them by the gov- ernor and provincial council, if they approve them not." The assembly thereupon resolved that the governor might have a veto power over the acts of the council, but not over those of the assembly.I
Hence the conference resulted in no concessions to the house, but to the guaranteed right of the council to prepare all bills was added a proviso that they should not be inconsistent with the powers granted by the royal charter. The assembly was much impressed by its favorable reception at the hands of the governor on this occasion, and immediately on its re- turn from the conference subscribed a declaration of fidelity. Then the clerk of the council brought into the assembly a bill concerning the time when the sessions of the council and as- sembly should be held, and the method to be observed in their proceedings in legislation. Upon this important measure a long discussion ensued. After several alterations had been made, the bill was called an " act of settlement " and passed March 19. It was declared that, because the freemen of the province and territories were deeply sensible " of the good and kind intentions of the proprietor and governor in this charter, and of the singular benefit that redounded to them thereby, and were desirous that it may in all things best answer his design for the public good, ' * * they unanimously requested some variations, explanations, and additions in, of, and to the said charter." It was therefore enacted that the number of councillors and assemblymen desired by the people should be allowed to be the provincial council and general assembly of
1 Votes, i, pt. i, pp. 8-10.
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the province. The council and assembly already elected were determined to be legally constituted for that year. Thereafter, the council should consist of three members, and the assembly of six from each county. This number was subject to future changes by the legislature, but was never to exceed the limi- tations of the frame of government. The time for holding the annual elections was changed. With regard to the preparation and proposing of bills, it was enacted that the governor and council should have the power to declare and propose to the assembly all bills that they " should jointly assent to * * * that are not inconsistent with, but according to the powers granted by the king's letters patent to the proprietary and governor." The bills should be published "in the most noted towns and places twenty days before the meeting of the assembly." " All questions upon elections of representatives and debates in pro- vincial council and general assembly in personal matters," should be decided by the ballot, but all questions about preparing and enacting laws, should be determined in the ordinary man- ner. The governor, council, and assembly together should be known as the general assembly. Lastly, "that the freemen of this province and territories might not on their parts seem un- mindful or ungrateful to their proprietary and governor for the testimony he had been pleased to give of his great good will toward them and theirs, nor be wanting of that duty they owe to him and themselves," they declared their hearty acceptance of the frame of government, and their humble acknowledg- ment of the same. They also promised that, by virtue of the powers granted them by it, they would do nothing, whereby the rights, property, and privileges given by the royal charter and the Duke of York's deeds of enfeoffment might in any way be violated." By this act it will be seen that the proprietor showed his willingness to concede to the people substantially what they asked, and also that he in turn secured their prom- ise that he should not suffer for his liberality.
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