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By the fifth, the said William Penn is empowered and authorised to erect courts of judicature, appoint judges, and administer justice in ,all forms, and carry all the laws so made as above, into execution, under the pains therein expressed ,- provided the said laws be consonant to reason, and not repugnant or contrary, (but as near as conveniently may be) agreeable, to the laws and statutes and rights of Eng
. land; with a saving to the crown in case of appeals :-_for
this vreason doubtless, That in case any act of injustice or oppression was committed, the party injured might be sure of redress. ,' I i >
By the slitth, which presumes, that in the government of so great a country, sudden accidents might happen, which would require a remedy before the free/raiders 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 empowered to make and constitutefit 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 orin 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 tothe privy council for the time being: and if declared by the king in coun‘ cil, 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 misdemeanor committed, or wilful default or neglect, permitted 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.
His majesty moreover covenants and grants to and with the ‘said William Penn, in the twentieth section, for himself, his heirs and successors, at no time thereafter, to impose or levy any tax on the inhabitants in any shape, unless the same be with the consent of the proprietary or chief governor, or assembly, or by act of parliament in England.
On pain of his highest displeasure, he also commands all his ofiicers and ministers, that they do not presume at any time to attempt any thing to the contrary of the premises, or that they do in any sort withstand the same: and, Orr the contrary, enjoins them, to be at all times aiding and assisting, asiwas 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 con,» tained therein, such interpretation should be made thereof and allowed in any of his majesty’s courts, as should be ad.judged most advantageous and favourable to the said x'Vl/illiam Penn, his heirs and assigns‘; provided always, that no interpretation be admitted thereof, by which the allegiance due to the crown may suifer any prejudice or diminution. ,
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 imaginas hie; 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 oflice in such case providing, that nothing illegal shall be carried into execution; and the oflicer himself being responsible to
' the laws in case of yielding a criminal obedience.
It would therefore be a waste of words to shew,lthat 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 andv
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.” ,
vtrade with, and treatment of the Indians, &c. with the ad
dition 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 pub-
lished 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, they see meet.”
At the head of this frame, or system, is a short prelimi~ nary 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. 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 he the frame) where the laws rule and the people are a party to those laws : and more than this is tyranny, oligarchy, or con
fusion.” 2- “ T0 $11 011 owfir in reverence with the co lc, . P P P P
and to secure the people from the abuse of power, that they may be free by their ‘just obedience, and the magistrates hoinorable for their just administration, are the great ends of all government.” ‘
This frame consisted of twentyrfour articles, and savored very strongly of Harrington and his Oceana. In the governor and frecmen 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 ofiicers appointed, and all public afiairs transacted. Seventy-two was the numher this council was to consist of: they were “to be chosen by the freernen; 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 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 department 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 purchaser-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.
T o 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. _
1 England, where this Review was first published.