Analysis: Pennsylvania Charter of Privileges

Date: October 28, 1701

Author: Pennsylvania General Assembly; Penn, William

Genre: constitution; law

Summary Overview

In 1681, William Penn was granted the land and charter for what is now Pennsylvania. Although Penn was a visionary in many ways, he could not foresee all the issues that could arise in a venture of this kind. After a few decades, challenges arose that the colonists did not believe were adequately addressed in the original frame of government. This caused dissatisfaction within the colony, and the General Assembly confronted Penn on the matter. The General Assembly and Penn developed a new document to replace the previous foundation for the colony’s government. One major addition to this document was the inclusion of the phrase “according to the Rights of the free-born Subjects of England.” The guarantee of the rights of all English subjects had been omitted in the previous frame of government. Penn’s acceptance of the Charter of Privileges was not only a symbolic acknowledgement of the assembly, but also a major step in turning over power to the elected legislature.

Document Analysis

The Charter of Privileges is a political document that served as a constitution for colonial Pennsylvania from 1701 until 1776. The residents of Pennsylvania at the time had become dissatisfied with the colonial government. However, change came slowly with the absence of William Penn, who was settling border disputes in England. He was away from the colony from 1684 to 1699, during which time the appointed governor and the General Assembly ran the colony but could not confer with Penn on such matters as revision of the charter. In the charter can be seen the desires of many different factions, as well as a description of William Penn’s political views. It solidified the role of the legislative branch—the General Assembly—and gave what is now Delaware the ability to begin to separate from the larger section granted to Penn by King Charles II in 1681. In response to the religious persecution suffered by groups like Penn’s own Quakers, religious freedom is emphasized by placing it in the first article of the charter. The inclusion of the rights of the accused and trial procedures were also important to Penn, as well as many in the colony. To insure an orderly transition to the new foundation for colonial government, Penn included an addendum to the charter declaring that actions of and rights granted by the previous government would remain in effect.

Legally, under the royal charter that established the colony, Penn did not have to give the colonists any say in the government. Although it was a practical step to attract colonists, the king had given Penn the right to sell the land, create towns, tax, appoint officials, and administer justice, according to English law. Thus, Penn instituted the Frame of Government as a means to reach the ideals he had for the colony. Once an elected government had been established, the revisions to the Frame of Government, and ultimately the Charter of Privileges, helped to strengthen and evolve the colonial government.

The first five paragraphs of the charter are the preamble. They give the background of the situation, covering the previous twenty years. After identifying himself and stating a formal greeting, Penn then goes on to briefly describe how he came to have legal title to the Province of Pennsylvania (now the commonwealth of Pennsylvania). The second paragraph describes how Penn came to own the Pennsylvania Territories (now Delaware) in 1682. Charles’s brother James, then the duke of York and later King James II, gave Penn control of this territory to insure Pennsylvania’s access to the ocean. Although at the time the charter was written they were governed as one unit, the different history and populations meant that they were not united.

The third paragraph brings the reader up to date. The Frame of Government had been accepted by the General Assembly in 1683. One unique feature of this constitution was that it gave the General Assembly the right to amend the document by a six-sevenths vote and approval of the governor. Other governing documents in the colonies did not have this type of clause. While this is a high threshold for passing an amendment, this requirement was reached at the turn of the eighteenth century and the General Assembly requested Penn revise the governing document for the colony. The exact reasons for the request are not specified, rather Penn summarizes them by writing that the Frame of Government “being found in some Parts of it, not so suitable to the present circumstances of the Inhabitants.” His response to the growing discontent in the colony was formally described in the fourth paragraph, as he stated that he “was then pleased to promise, That I would restore the said Charter to them again, with necessary Alterations, or in lieu thereof, give them another, better adapted to answer the present Circumstances.”

The final part of the preamble is a strong statement of affirmation that Penn was making these changes “for the further Well-being and good Government of the said Province, and Territories.” These rights were given to everyone, although as can be seen, there were sections of the charter that created some limitations. However, the broad categories of “Freemen, Planters and Adventurers, and other Inhabitants” do seem to be relatively inclusive.

There are eight formal articles in the charter. While the first reflects the reason the colony was founded, it also reflects tension within the colony at the opening of the eighteenth century. The “Freedom of their Consciences, as to their Religious Profession and Worship” was a dominant concern of the Quakers in their decision to support Penn’s effort in the New World. Since their founding in England, Quakers had been subjected to persecution and limitations regarding participation in the government. However, as the population of Pennsylvania rapidly increased, many moving there were not Quakers, but rather Moravians who had also been persecuted in Europe. In addition, many Scots-Irish were recruited to bring their skills to help develop the resources. Some members of these groups, especially those from Moravia and other southern German states, were wary of Quaker domination. (The Quakers controlled the General Assembly for the first seventy-five years of Pennsylvania’s history.) Although the Quakers had never taken steps to force other groups to change their views or practices, by placing religious freedom as the first point in the new charter it was clear to everyone that it would not happen in the future.

It should be pointed out that freedom of religion for even a person as enlightened as William Penn was not what is currently understood by that term. Freedom of religion was only for Christians and Jews, although it could be debated that Muslims would also fall under this provision. Freedom was given to those who “confess and acknowledge One almighty God, the Creator.” This was clearly a statement intended to include Jews as well as Christians.

However, the rights of non-Christian citizens in Pennsylvania were limited. They could neither serve in the government nor vote. The charter states, “All Persons who also profess to believe in Jesus Christ . . . shall be capable . . . to serve this Government in any Capacity.” Despite the fact that Catholics fell under this provision, their primary allegiance to the pope rather than to the king of England meant that they were excluded from the government functions of the English colony. Thus, only Protestants could serve in the legislature or executive branch; in this period, the judiciary was considered part of the executive branch. In addition, they were the only ones who could vote. One other point was written to be in alignment with Quaker beliefs. The final provision for government officials was that they be willing to promise allegiance to the monarch and the proprietor. In most places, the term “promise”would have been replaced by “swear,” and swearing an oath was contrary to Quaker beliefs. It should also be noted that enslaved Africans and African Americans were not included in any of the rights or protections of the Frame of Government or the Charter of Privileges.

The second and fourth articles of the charter have provisions for the legislature and legislative process. Most of these were a continuation of what was in the Frame of Government, with regard to the General Assembly, even though in the Frame of Government much less was said about the General Assembly than in this charter. In article II, the initial number, date of election for one-year terms and date of the legislative session’s beginning are given. As is usual for a democratic legislature, passing bills to become laws and normal legislative powers were given to the General Assembly. The veto power of the governor was retained in article IV. The power of impeachment also remained with the General Assembly.

However, new powers were outlined for the General Assembly in the charter. In 1696, Governor William Markham had accepted changes to the Frame of Government that allowed the General Assembly to initiate legislation rather than wait for the governor or Provincial Council to initiate it because the General Assembly had refused to pass a budget until this was done. Penn stated that he had never accepted this change in the original frame of government. Thus, the provision that the Assembly could “prepare Bills in order to pass into Laws” was a major change from the initial frame, and acceptance of this provision was a change in Penn’s view of how the government should work. Another power commonly held by governors or monarchs but here given to the General Assembly was the power to “sit upon their own Adjournment.” Previously, the Council had the right to determine when the Assembly could be in session. Thus, since only the General Assembly could vote to adjourn their legislative session, they could not be disbanded by Penn or any appointed governor. One final statement that solidified the power of the Assembly, as well as the rights of the colonists, was the affirmation that they had “the Rights of the free-born Subjects of England, and as is usual in any of the King’s Plantations in America.” Thus, any commonly accepted right for other American colonists was guaranteed for those in Pennsylvania.

As previously mentioned, the General Assembly had become the primary actor in the governmental decision-making process. The Provincial Council, which was of central importance in the Frame of Government, was never mentioned in the charter. Since 1683, the Council had slowly changed to become an advisory body to the governor or collectively acted as the “governor” when no governor had been appointed. However, it could not exercise the governor’s veto power. From 1696 to 1701, the Council became a de facto second house of the legislature, having to accept any bill proposed by the Assembly. The Council’s reduced status and size was part of the ongoing struggle between the executive branch (Penn and his representatives) and the legislative branch. The Council’s powers had also been reduced by Penn when he had disagreements with their decisions. By not addressing the composition of the executive branch, the charter gave Penn and his heirs total control of that branch. The Provincial Council continued to exist throughout the colonial period, but as a small, conservative group of advisors appointed by and answerable to the governor. The governor retained extensive powers, including, in article III, the right to name county officials from lists of nominees given to him by county voters, or, in the case of the court clerks, by the judge in the particular county.

Articles V and VI pertain to the rights of accused criminals and their trials, which were essentially unchanged from the Frame of Government. Although the manner in which trials would be held was not spelled out in detail as in the frame, the several notations in the charter that precedent would be followed meant that things such as a trial by jury would not be changed. Penn was a strong believer in the rights of the accused, having been the defendant in several trials in England, as well as having been imprisoned for his beliefs without a trial.

Two other articles introduced new constitutional provisions. Article VII outlined that before the governor could issue a license for a pub or tavern, the applicant had to pass a background check regarding the applicant’s suitability. This was to be made by a judge in the county where the establishment was to be located. Article VIII is quite clear regarding a suicide’s impact on a family. Unlike England and many other colonies, no penalty would be applied against the estate because the deceased had committed suicide. Because suicide was considered a crime in that era, the estate of one who had committed that crime was liable forfeiture to the state as a penalty for the crime. Thus, in the charter, suicide was essentially decriminalized in Pennsylvania.

The closing section of the charter contained many of the normal assurances that are given when a person or group gives up rights or powers. The basic one is that “no Act, Law or Ordinance whatsoever, shall at any Time hereafter, be made or done, to alter, change or diminish the Form or Effect of this Charter.” However, the provision for amending it by a six-sevenths vote of the General Assembly was retained. A special guarantee regarding the freedom of religion was given in a paragraph specifically devoted to that topic. This reinforced how important this concept was for Penn and the colony. Finally, Penn affirms that neither he nor his heirs would do anything to alter the rights granted in the charter. This was an important statement because the royal charter did give Penn and his heirs full control of the colony. The statement renouncing any claims to those powers was significant, in case any of his heirs wanted to try to regain full control of the colony.

After the paragraph attesting to name of the signer of the charter, as well as the place and time in which it was signed, Penn goes on to add another two paragraphs of great importance. The first deals with the unity of the “Province and Territories.” The Charter of Privileges was written for both of these political units, with the anticipation that they would remain united. However, Penn recognized the differences between the two and acknowledged the possibility of a future separation, even giving the minimum size for the legislature in what would become Delaware, should there be a separation. The separation did occur in 1703, as the three southern counties pulled out of the union with the Province (i.e. Pennsylvania) with a separate legislature beginning to meet in 1704.

What is now Delaware had been settled earlier than Pennsylvania by non-Quakers. This territory had been English for less than twenty years when given to Penn, having previously been Swedish and Dutch. This region did not agree with Quaker pacifism or many other Pennsylvania policies. Delaware was pleased with the opportunity for independence from Pennsylvania and Pennsylvania leaders were pleased with the chance to get rid of what they saw as a rural region full of unappreciative people.

The final paragraph was added by Penn in an attempt to keep the ideals represented by the charter as a part of the political system for all citizens of Pennsylvania. Thus, he states that regardless whether the two territories separated, the single government, or both governments, would be bound by the charter. In addition, in order to clarify any question about previously adopted laws or rights that had been granted, Penn states that the rights and benefits from the previous system remained: “the Inhabitants of both Province and Territories, shall separately enjoy all other Liberties, Privileges and Benefits, granted jointly to them in this Charter, and Law, Usage or Custom of this Government heretofore made and practiced . . .” There would be a continuity of government, even in this time of change. While the role of the General Assembly, the Provincial Council, and governor would now be different, any legitimate action previously taken would remain in effect until changed by the appropriate action implemented under the new system. In a time of transition, this was an important step to reduce uncertainty and anxiety among the population of the colony. Because of that strong foundation, the transition was smooth and the new system stood the test of time.

Bibliography

MacDonald, William, ed. Select Charters and Other Documents: Illustrative of American History 1606–1775. 1899. Whitefish: Kessinger, 2010. Print.

“The Vision of William Penn.” ExplorePAhistory.com. WITF, 2011. Web. 30 May 2012.