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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 shew, 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.

But if it is remarkable, that such an instrument as this should be the growth of an arbitrary court, it is equally so, that the king's brother, James, duke of York, (afterwards the most unhappy of kings) was at the rebound, a party in it; for it seems, the right to all that tract of land now called the territories of Pennsylvania, was, by a prior grant, vested in him; and, in August, 1682, he assigned it by his deeds of feoffment to the said William Penn.

It may also be inferred, that the said William 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 Penn, 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 Grace-church-street, than we derive from Raphael's Cartoon of Paul preaching at Athens: as a man of conscience 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.

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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 honorable for their just administration, are the great ends of all government.'

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This frame consisted of twenty-four articles, and savored 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 as 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

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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 twentyfour 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 received 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 splendor 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 authorised 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,1 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

1 England, where this Review was first published.

assembly of 1704, in a representation addressed to himself) in the whole course of this proceeding; whether justly or not let the world determine.

"That

They tell him, for example, in so many words, 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 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 according 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 those probationary laws, which by the council and assembly might be altered, at pleasure, the model of the said council and assembly so reduced is admitted; the persons so returned are declared and enacted to be the legal council and assembly; the number of the said council is fixed at three persons out of each

county for the time to come; the number of assembly-men for each is reduced to six; and, after a variety of farther regulations, the said charter or frame is solemnly recognized 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 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 Decem ber, 1682, and the next at Philadelphia in March and April, 1683, Mr. Penn, notwithstanding the act of settlement, fur

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