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nominated by the justices of the respective counties, out of whom the governor was to select one to serve for clerk of the peace, within ten days, or otherwise the place to be filled by the first so nominated; that the laws of the government should be in this style, to wit, By the governor, with the consent and approbation of the freemen in general assembly met;' that all criminals should have the same privileges of witnesses and council as their prosecutors; that no person should be obliged to answer any complaint, matter, or thing whatsoever, relating to property, before the governor and council, or in any other place but in ordinary course of justice, unless in appeals according to law; that the estates of suicides should not be forfeited; that no act, law, or ordinance whatsoever should at any time hereafter be made or done to alter, change, or diminish the form or effect of this charter, or of any part or clause therein, according to the true intent and meaning thereof, without the consent of the governor for the time being, and six parts in seven of the assembly met; that the first article relating to liberty of conscience should be kept and remain without any alteration inviolably for ever; that the said William Penn, for himself, his heirs and assigns, did thereby solemnly declare, grant, and confirm, that neither he, his heirs, nor assigns should procure or do any thing or things whereby the liberties, in this charter contained and expressed, nor any part thereof, should be infringed or broken, and, that if any thing should be procured and done by any person or persons contrary thereto, it should be held of no force or effect."
Thus, though much remained of the first institution, much was taken away. The people had no longer the election of the council; consequently all who, for the future, were to serve in that capacity, were to be
nominated by the governor, consequently were to serve on what terms he pleased. Instead of having but three voices in seventy-two, he was left single in the executive, and at liberty to restrain the legislative by refusing his assent to their bills whenever he thought fit. On the other hand, the assembly, who at first could not propound laws, though they might amend or reject them, were put in possession of that privilege; and, upon the whole, there was much more room for acknowledgments than complaints.
How much soever the governor had grown upon Mr. Penn, and how much soever his concern for others had worn off, when raised to a sphere above them, it is plain he had not forgotten his own trial, nor the noble commentary upon Magna Charta, which, in his tract, called "The People's Ancient and Just Liberties Asserted," he had upon that occasion made public, wherein he
"There were but two sorts of government; will and power, or condition and contract. That the first was a government of men, the second of laws. That universal reason was and ought to be, among rational beings, universal law; that, of laws, some were fundamental and immutable, some temporary, made for present convenience, and for convenience to be changed. That the fundamental laws of England were of all laws most abhorrent of will and pleasure; and, that till houses should stand without their own foundations, and Englishmen cease to be Englishmen, they could not be cancelled, nor the subjects deprived of the benefit of them."
Such as it was, by the freemen of the province it was thankfully accepted, but by those of the territory unanimously declined; and in this divided condition this new Lycurgus, as Montesquieu calls him, left them.
Andrew Hamilton, Esquire, (not the celebrated barrister of that name) was the person appointed to be his substitute; and the principal effort of his administration was to bring about a reunion, which being at length found impracticable (the territory men still persisting in their refusal of the charter), the province, in virtue of the charter, claimed a separate representative of their own, which, in point of number was fixed at eight members for each of the three counties, and two for the city of Philadelphia, now so constituted by the proprietary's special charter; and, after duly qualifying themselves according to law, their first resolution was,
"That the representatives or delegates of the freeholders of this province, according to the powers granted by the proprietary and governor by his charter, dated the eighth day of October, Anno Domini 1701, may meet in assembly on the fourteenth day of October, yearly, at Philadelphia, or elsewhere, as shall be appointed by the governor and council for the time being, and so continue on their own adjournments from time to time during the year of their service, as they shall find occasion, or think fit, for preparing of bills, debating thereon, and voting, in order to their being passed into laws; appointing committees, redressing of grievances, and impeaching of criminals, as they shall see meet, in as ample manner as any of the assemblies of this province and territories have hitherto at any time done, or might legally do; as effectually, to all intents and purposes, as any of the neighbouring governments under the crown of England have power to do, according to the rights and privileges of the free born subjects of England, keeping to the rules and prescriptions of the Parliament of England, as near as may be, respecting the infancy of the government and the capacities of the people; and that the said assem
bly, as often as the governor for the time being shall require, attend on him in order to legislation, and to answer all other just ends of assemblies on any emergencies or reasons of state, but shall not be subject at any time to be by him adjourned, prorogued, or dissolved."
John Evans succeeds Hamilton. Controversy between him and the Assembly. Nine several Heads of Complaint entered in the Minutes of the Assembly, as the Ground of a Representation to the Proprietary. The Remainder of that Representation. A Copy of it demanded by the Governor and refused by the Assembly. The Governor censures the Proprietary's Charter of Property. The Draftsman's Defence of it. The Governor declares the Proprietary's high Resentment of the Assembly's Representation. The Assembly's Reply. The Governor refers to the Charter of Privileges as the only Rule of Government. The Assembly complain of Infractions made in it. Their Representation to the Proprietary against the Governor. Logan impeached by the Assembly, and skreened by the Governor. A unanimous vote of thanks to the Proprietary for recalling Evans. General View of Gookin's Government. Assembly's Character of Themselves.
THIS was the state of things when John Evans, Esquire, appointed deputy-governor on the death of Mr. Hamilton, arrived in the province in the beginning of the year 1704.
What his commission and instructions were does not appear; but, having convened the representatives both of the province and territories, to meet him at the same time in his council-chamber, he affected to be surprised at finding them in separate states, said her Majesty considered them as one entire government, and earnestly pressed them both to come to an amicable agreement, not without insinuation, that neither of them would otherwise be in a condition to act at all.
The provincials, in return, intimated, that they should be heartily glad of a farther union with the territories if it could be obtained without prejudice to their constitution or to their charter; said, those of the territory had been the occasion of inserting that clause in their charter by which they had been enabled to act separately; made professions of so much good-will and good