[William Penn (1644-1718), founder of Pennsylvania, as a young man joined the persecuted sect of Friends, or Quakers, despite the opposition of his father. As a leader of this group he became interested in the management of the Jerseys, then largely under Quaker control and, in the later days of Charles II, secured the grant of Pennsylvania, including three counties now in Delaware. Penn then set about attracting settlers for the new colony and later, after consultation with Algernon Sidney and other friends, drew up the "Frame of Government" and a penal code far in advance of his time. Actually the governmental structure here provided for proved unworkable and, within a year, was supplanted. Only in 1701, with Penn's "Charter of Privileges," was the proprietary government established upon the formal basis on which it continued to 1776.
For a full picture of the constitutional structure of colonial Pennsylvania more than the "Frame" is needed; the latter must be read in light of the royal charter. The charter grants to Penn and his heirs the usual proprietary rights over taxation (which required the assent of the freemen), the appointment of officers, the administration of justice, the incorporation of towns, and the sale and disposal of land. This grant is subject, of course, to the usual proviso that the provincial laws be in harmony with those of England, a point for the royal courts ultimately to decide.]
When the great and wise God had made the world, of all his creatures it pleased him to choose man his deputy to rule it; and to fit him for so great a charge and trust, he did not only qualify him with skill and power but with integrity to use them justly. This native goodness was equally his honor and his happiness; and whilst he stood here, all went well; there was no need of coercive or compulsive means, the precept of divine love and truth, in his bosom, was the guide and keeper of his innocency. But lust prevailing against duty made a lamentable breach upon it; and the law, that before had no power over him, took place upon him, and his disobedient posterity, that such as would not live comformable to the holy law within should fall under the reproof and correction of the just law without in a judicial administration.
This the Apostle teaches in divers of his epistles: "The law," says he, "was added because of transgressions." In another place, "Knowing that the law was not made for the righteous man; but for the disobedient and ungodly, for sinners, for unholy and profane, for murderers, for whoremongers, for them that defile themselves with mankind, and for manstealers, for liars, for perjured persons," etc.; but this is not all, he opens and carries the matter of government a little further: "Let every soul be subject to the higher powers; for there is no power but of God. The powers that be are ordained of God: whosoever therefore resisteth the power, resisteth the ordinance of God. For rulers are not a terror to good works, but to evil: wilt thou then not be afraid of the power? Do that which is good, and thou shalt have praise of the same." "He is the minister of God to thee for good." "Wherefore ye must needs be subject, not only for wrath, but for conscience' sake."
This settles the divine right of government beyond exception, and that for two ends: first, to terrify evildoers; secondly, to cherish those that do well; which gives government a life beyond corruption and makes it as durable in the world, as good men shall be. So that government seems to me a part of religion itself, a thing sacred in its institution and end. For, if it does not directly remove the cause, it crushes the effects of evil and is, as such (though a lower, yet), an emanation of the same Divine Power that is both author and object of pure religion; the difference lying here, that the one is more free and mental, the other more corporal and compulsive in its operations; but that is only to evildoers; government itself being otherwise as capable of kindness, goodness, and charity, as a more private society. They weakly err that think there is no other use of government than correction, which is the coarsest part of it: daily experience tells us that the care and regulation of many other affairs, more soft, and daily necessary, make up much of the greatest part of government; and which must have followed the peopling of the world, had Adam never fell, and will continue among men, on earth, under the highest attainments they may arrive at, by the coming of the blessed Second Adam, the Lord from heaven. Thus much of government in general, as to its rise and end.
For particular frames and models, it will become me to say little; and comparatively I will say nothing. My reasons are:
First. That the age is too nice and difficult for it; there being nothing the wits of men are more busy and divided upon. It is true, they seem to agree to the end, to wit, happiness; but, in the means, they differ, as to divine, so to this human felicity; and the cause is much the same, not always want of light and knowledge, but want of using them rightly. Men side with their passions against their reason, and their sinister interests have so strong a bias upon their minds that they lean to them against the good of the things they know.
Secondly. I do not find a model in the world, that time, place, and some singular emergencies have not necessarily altered; nor it is easy to frame a civil government that shall serve all places alike.
Thirdly. I know what is said by the several admirers of monarchy, aristocracy, and democracy, which are the rule of one, a few, and many, and are the three common ideas of government, when men discourse on the subject. But
I choose to solve the controversy with this small distinction, and it belongs to all three: Any government is free to the people under it (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.
But, lastly, when all is said, there is hardly one frame of government in the world so ill designed by its first founders that, in good hands, would not do well enough; and story tells us, the best, in ill ones, can do nothing that is great or good; witness the Jewish and Roman states. Governments, like clocks, go from the motion men give them, and as governments are made and moved by men, so by them they are ruined too. Wherefore governments rather depend upon men than men upon governments. Let men be good, and the government cannot be bad; if it be ill, they will cure it. But, if men be bad, let the government be ever so good, they will endeavor to warp and spoil it to their turn.
I know some say, "Let us have good laws, and no matter for the men that execute them"; but let them consider that, though good laws do well, good men do better, for good laws may want good men and be abolished or evaded [invaded in Franklin's print] by ill men; but good men will never want good laws nor suffer ill ones. It is true, good laws have some awe upon ill ministers, but that is where they have not power to escape or abolish them, and the people are generally wise and good, but a loose and depraved people (which is the question) love laws and an administration like themselves. That, therefore, which makes a good constitution, must keep it, viz.: men of wisdom and virtue, qualities that, because they descend not with worldly inheritances, must be carefully propagated by a virtuous education of youth; for which after ages will owe more to the care and prudence of founders, and the successive magistracy, than to their parents, for their private patrimonies.
These considerations of the weight of government, and the nice and various opinions about it, made it uneasy to me to think of publishing the ensuing frame and conditional laws, forseeing both the censures they will meet with from men of differing humors and engagements and the occasion they may give of discourse beyond my design.
But, next to the power of necessity (which is a solicitor that will take no denial), this induced me to a compliance: that we have (with reverence to God, and good conscience to men), to the best of our skill, contrived and composed the frame and laws of this government, to the great end of all government, viz.: 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; for liberty without obedience is confusion, and obedience without liberty is slavery. To carry this evenness is partly owing to the constitution and partly to the magistracy; where either of these fail, government will be subject to convulsions; but, where both are wanting, it must be totally subverted; then where both meet, the government is like to endure. Which I humbly pray and hope God will please to make the lot of this of Pennsylvania. Amen.
To all persons to whom these presents may come. Whereas, King Charles the Second. . . hath been graciously pleased to give and grant unto me, William Penn,. . . all that tract of land, or province, called Pennsylvania, in America . . . I, the said William Penn, have declared, granted, and conformed. . . these liberties, franchises, and properties, to be held, enjoyed, and kept by the freemen, planters, and inhabitants of the said province of Pennsylvania for ever.
Imprimis. That the government of this province shall, according to the powers of the patent, consist of the governor and freemen of the said province, in form of a provincial Council and General Assembly, by whom all laws shall be made, officers chosen, and public affairs transacted, as is hereafter respectively declared....
II. That the freemen of the said province shall . . . choose out of themselves seventy-two persons of most note for their wisdom, virtue, and ability, who shall meet. . . and act as, the provincial Council....
IV. That, after the first seven years, every one of the said third par. that goeth yearly off, shall be uncapable of being chosen again for one whole year following; that so all may be fitted for government and have experience of the care and burden of it....
VI. That, in this provincial Council, the governor or his deputy shall, or may, always preside and have a treble voice....
VII. That the governor and provincial Council shall prepare and propose to the General Assembly, hereafter mentioned, all bills which they shall, at any time, think fit to be passed into laws....
VIII. That the governor and provincial Council shall take care that all laws, statutes, and ordinances which shall at any time be made within the said province be duly and diligently executed....
XII. That the governor and the provincial Council shall erect and order all public schools and encourage and reward the authors of useful sciences and laudable inventions in the said province....
XIV. And, to the end that all laws prepared by the governor and provincial Council aforesaid may yet have the more full concurrence of the freemen of the province . . . the said freeman shall yearly choose members to serve in a General Assembly, as their representatives, not exceeding two hundred persons, who shall yearly meet . . . in the capital town, or city, of the said province, where, during eight days, the several members may freely confer with one another . . . and, on the ninth day from their so meeting, the said General Assembly, after reading over the proposed bills by the clerk of the provincial Council, and the occasions and motives for them being opened by the governor or his deputy, shall give their affirmative or negative....
XVI. That, for the establishment of the government and laws of this province, and to the end there may be an universal satisfaction in the laying of the fundamentals thereof: The General Assembly shall, or may, for the first year, consist of all the freemen of and in the said province; and ever after it shall be yearly chosen, as aforesaid; which number of two hundred shall be enlarged as the country shall increase in people, so as it do not exceed five hundred, at any time; the appointment and proportioning of which, as also the laying and methodizing of the choice of the provincial Council and General Assembly, in future times, most equally to the divisions of the hundreds and counties, which the country shall hereafter be divided into, shall be in the power of the provincial Council to propose, and the General Assembly to resolve.
XVII. That the governor and the provincial Council shall erect, from time to time, standing courts of justice in such ; places and number as they shall judge convenient for the good government of the said province....
XVIII. But forasmuch as the present condition of the province requires some immediate settlement, and admits not of so quick a revolution of officers; and to the end the said Province may, with all convenient speed, be well ordered and settled, I, William Penn, do therefore think fit to nominate and appoint such persons for judges, treasurers, masters of the rolls, sheriffs, justices of the peace, and coroners, as are most fitly qualified for those employments; to whom I shall make and grant commissions for the said offices, respectively, to hold to them, to whom the same shall be granted, for so long time as every such person shall well behave himself in the office, or place, to him respectively granted, and no longer. And upon the decease or displacing of any of the said officers, the succeeding officer, or officers, shall be chosen, as aforesaid....
XXIII. That no act, law, or ordinance whatsoever shall at any time hereafter be made or done by the governor of this province, his heirs or assigns, or by the freemen in the provincial Council, or the General Assembly, to alter, change, or diminish the form, or affect, of this charter, or any part, or clause thereof, without the consent of the governor, his heirs, or assigns, and six parts of seven of the said freemen in provincial Council and General Assembly.
XXIV. And, lastly, that I, the said William Penn, for myself, my heirs, and assigns, have solemnly declared, granted, and confirmed, and do hereby solemnly declare, grant, and confirm, that neither I, my heirs, nor assigns, shall procure or do anything or things, whereby the liberties in this charter contained and expressed shall be infringed or broken; and if anything be procured by any person or persons contrary to these premises, it shall be held of no force or effect. In witness whereof, I, the said William Penn, have unto this present character [sic] of liberties set my hand and broad seal, this five and twentieth day of the second month, vulgarly called April, 2 in the year of our Lord one thousand six hundred and eighty-two.
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Maintained: Jon Roland of the Constitution Society
Original date: 1997/09/03 —
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