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the said country, or the greater part of them, or of their delegates and deputies, to be assembled in such sort and form, as to him and them shall seem best, and as often as need shall require.
By the fifth, the said William Penn is empowered and authorized 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 England; with a saving to the crown in case of appeals;-for this reason doubtless, that, in case any act of injustice or oppression was committed, the party injured might be sure of redress.
By the sixth, which presumes, that, in the government of so great a country, sudden accidents might happen, which would require a remedy before the freeholders 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 constitute fit 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 or in 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 inhabi tants 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 to the Privy Council for the time being; and if declared by the King in Council 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 officers and ministers, that they do not presume at any time to attempt any thing to the contrary of the premises, nor that they do in any sort withstand the same; and, on the contrary, enjoins them to be at all times aiding and assisting, as was fitting, to the said Wiliam 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 contained therein, such interpretation should be made thereof and allowed in any of his Majesty's courts, as should be adjudged most advantageous and favorable to the said William Penn, his heirs and assigns; provided always, that no interpretation be admitted thereof, by which the allegiance due to the crown may suffer 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 candor and simplicity imaginable; 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 nowhere 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 show, 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's preaching in Gracechurch 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 be the frame), where the laws rule and the people are a party to those laws; and more than this is tyranny, obligarchy, 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."
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 was 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 third of them was, at the first, to be chosen for three years, one third for two years, and one third