which he reserved to himself or his agents. The functions of the council were, to prepare and propose bills to see the laws duly executed-to have charge of the peace and safety of the province to determine on the sites of new towns and citiesto build ports, harbors, and markets-to make and repair roads to inspect the public treasury-to erect courts of justice, institute primary schools, and reward the authors of useful inventions and discoveries. This body, consisting of seventytwo persons, was to be chosen by universal suffrage for three years, twenty-four of them retiring every year, their places being supplied by a new election. The members of the assembly were to be elected annually. The votes were in all cases to be taken by ballot; the members were to be paid; and the suffrage was universal. There were no property qualifications, and the whole country was to be divided into sections for electoral purposes. The assembly, however, had no deliberative power. The acts of the council were to be simply laid before it for approval or rejection. It had the privilege of making out the list of persons to be named as justices and sheriffs, of which list the governor was bound to select one half; this privilege is still preserved in America, to the great scandal of countries in which the judgment-seat is held to be the last place which ought to be invaded by popular will. Penn evidently intended the assembly to be a great audit-chamber; a yearly gathering of the people to sanction, if it found them worthy, the measures of the government. But with time its functions grew in importance; elected every year, it represented public opinion more accurately than the more senatelike council; and this circumstance gave it a weight in the country which the less changeable body never possessed.2

To this outline of a constitution were added forty provisional laws relating to liberty of conscience, the choice of civil officers, provision for the poor, processes at law, fines, forfeitures, arrests, and other matters of a civil nature. These provisional laws were to be in force until the council had been properly elected, when they were to be accepted, amended, or rejected, as the popular representatives should think proper; Penn agreeing with Sidney that no men could know what laws were needful so well as those whose lives, properties, and liber

1 Frame of Government, 1682. Here are all the "six points of the Charter." 2 Franklin's Historical Review (1759).

ties would be concerned in their administration. On this point the constitution of Pennsylvania, and through it that of the United States, owes an eternal obligation to Algernon Sidney. Penn, like More, Harrington, and the writers on Utopian schemes of government, had a leaning in favor of a fixed and inflexible system. He would have drawn up his own constitutions and offered them to the world as the conditions of settlement in his new colony. Shaftesbury and Baltimore had adopted this as the only possible form. With a truer political instinct, Sidney saw that a democracy was incompatible with a fixed and foreign body of constitutional law. He proposed, therefore, to leave this question open.' Having fixed the great boundary lines of the system-secured freedom of thought (always Penn's first care), sacredness of person and property, popular control over all the powers of the state, financial, civil, proprietorial, and judicial-the lawgivers left the new democracy to develope itself in accordance with its own natural genius;-which it did the better for being unincumbered with useless formalities and laws.2 America owes much to Algernon Sidney.

Penn's philosophical friend Locke had taken another course. The serene and logical thinker had brought to the task of forming a new government for Carolina the learning of the schools and the traditions of ancient times; Shaftesbury had also contributed his knowledge of the actual world; and these two liberal and enlightened men had drawn up a form of government which England received as the perfection of wisdom, and their friends described as destined to endure forever.3 To understand how much Penn was wiser than his age, more imbued with the principles which have found their nobler utterances in our own, he must be measured-not only against the fanatics of his sect, and unlettered men like Fox-but against the highest types of learning and liberality which it afforded. Between John Locke and William Penn there is a gulf like that which separates the seventeenth from the nineteenth cen tury. Locke never escaped from the thraldom of local ideas; the hundred and seventy years which have passed away since Penn founded the state which bears his name, seem only to

1 Penn to Sidney, October 13, 1681. 2 Ancient Laws of Pennsylvania 3 Blome's America, 138.

have carried Europe so much nearer to the source from which his inspirations flowed.

1

Locke's constitution for Carolina was essentially a tyranny. It recognized four distinct estates-the proprietors, the great nobles, the lesser nobles, and the commons. The eight proprietors were the eight kings of the country; the dignitary was hereditary; on the failure of issue in one, the other seven were to choose a successor: they constituted a supreme body, self-elected and immortal, to whom one-fifth of the entire land in the province-a region larger than the whole of England, Wales and Scotland-was to belong permanently and inalienably. The oldest proprietor, with the title of palatine and a large salary, was to exercise the sovereign power. The other seven were to fill the offices of admiral, chancellor, chamberlain, constable, chief justice, high steward and treasurer.2 Under these petty sovereigns two orders of nobility were to be created-being an earl and two barons for every four hundred and eighty thousand acres of land. Their number was never to be increased or diminished; the rank was hereditary; and in case of failure of issue, the place was to be supplied solely out of the privileged class. These nobles were to be invested with a second fifth part of the soil. Society was to be bound hand and foot. Estates were not to accumulate or diminish. The tenants, or small proprietors, were to hold ten acres of land at a fixed rent; these tenants were to be called leet-men; they were under the complete jurisdiction of their lords, without appeal; no leet-man or leet-woman could go from the soil on which he or she was located to live elsewhere without a license from the lord given under his hand and seal; and it was added in conformity to the spirit which ruled throughout, "the children of leet-men shall be leet-men, and so to all generations."3 Over the negro slaves every freeman had power of life and death.^

The Executive power rested solely with the Eight. They had almost absolute control over the administration of justice. There were seven courts and forty-two counsellors: one of the Eight presided in each court; and of the counsellors two-thirds were chosen by the proprietors and nobles. One aristocratic

1 Fundamental Constitutions. The original copy is in our State Paper Office, among the Records of the Board of Trade.

3 Ibid. Sections 22, 23.

2 Ibid.

4 Ibid. Section 110.

court controlled the press, another regulated fashions and sports. The Grand Council consisted of fifty members-of which thirty-six represented the aristocracy, and fourteen the people; and even these fourteen had to be elected at once and for life. Power of every kind was removed beyond the reach of the commons. The cultivators of the soil had no political rights. Even freeholders could not exercise the franchise unless they possessed fifty acres of land and upwards; and no one was eligible to sit in Parliament unless he owned five hundred acres and upwards. Trial by jury was virtually set aside. Every religion was tolerated-but the Church of England was declared to be alone true and orthodox; the only one to be supported out of the coffers of the State. Such are the great outlines of this celebrated document. How different to the constitutions of William Penn! Locke went back to the feudal times; Penn anticipated the modern radicals. The philosopher of sensation conceived a fixed aristocracy of wealth and power over-riding the democratic elements of the world; the disciple of the inner light had confidence in the virtues of mankind, and removed every obstacle to the free and full development of human energies. The project of the first signally failed, as it deserved to do; it is now buried under the dust of years; the other, slightly modified by events and seasons, lives and flourishes at the present moment, an example to infant governments, and one of the most precious heir-looms of time.

1 Fundamental Constitutions, Section 96.

CHAPTER VIII.

1682-1683.

THE HOLY EXPERIMENT.

THE great outlines of the new political system being drawn up, so as not only to meet his own ideas of the nature of a free and just government, but even to satisfy for the time his friends Sidney and North, Penn began to organize the emigration. The elements of a great movement were prepared to his hand. So soon as it was whispered about that the famous controversialist, the champion of trial by jury, the religious democrat, had become the sole owner and governor of a mighty province in the New World, and that he proposed to settle it on the broadest principles of popular right, men's minds were kindled with a liberal emthusiasm; from nearly every great town of the three Kingdoms, and from many cities on the Rhine and Holland, agents were despatched to London to treat with the new lord for lands on which colonies and companies proposed to settle. When the concessions were given to the public several minor companies were formed for the purpose of emigration. A German company was set on foot at Frankfort, in which the admirers of Penn at Worms, Kirchheim and other places visited by him in his travels, were largely interested. They sent over Franz Pastorius to London to purchase for them fifteen thousand acres of land lying in one tract on a navigable river, and three hundred acres within the liberties of the city to be founded by the governor.1 Liverpool, then a small but rising town, furnished a considerable number of purchasers and settlers-London still more. A regular company was organized at Bristol under the name of the Free Society of Traders in Pennsylvania; and in the autumn of the year the proprietor went down to that city to confer with Claypole, Moore, Ford and the rest on the plans to be adopted in

1 Pastorius wrote, in German, a Description of Pennsylvania, which has recently been translated and reprinted in the Penn. Hist. Soc. Mem. iv. Part ii. 83. It contains several interesting particulars not otherwise known.