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William Penn,

Lawgiver

An appreciation of Pennsylvania's Founding Father as a man who went against the current of his time.

By John P. Flaherty

William Penn was born in London on Oct. 14, 1644. His father was a naval captain, his mother the daughter of a Dutch merchant. When he was 12, Penn's family relocated to Ireland, where his father had estates. For some time Penn was educated by private tutors. In 1660, at the age of 16, he was sent to Oxford University. His father, then a vice admiral, was concerned with the restoration of the king.

Penn was to remain at Oxford for two years, where he was much influenced by the preaching of the followers of George Fox, the founder of the Quaker religion. A central idea in Fox's ideology was the "doctrine of the Inner Light." Under this doctrine, individuals were thought to have the innate spiritual capacity to communicate directly with God. This doctrine was in opposition to established ecclesiastical doctrine of the time and undermined the importance of religious ritual and clerics.

The doctrine of Inner Light and Quaker ideas in general were regarded as an attempt to reestablish the democratic social leveling of the Cromwellian period. Such ideas were not widely accepted, and they were offensive to the culture of Oxford University in 1660. In fact, Quakers were routinely jailed, beaten and whipped for their preaching.

The unpopularity of Quaker ideas notwithstanding, William Penn found himself attracted to them, particularly as these ideas were presented by the Oxford preacher Thomas Loe. This led ultimately to Penn's expulsion from Oxford in 1662 for his refusal to accept the established order in the church. For the next two years, Penn traveled on the continent. In 1665, he was employed, at least briefly, carrying dispatches to the king from his father, who was then fighting the Dutch in a naval engagement off the east coast of England at Lowestoft.

When the plague broke out in London, Penn traveled to Ireland, where he managed his father's estates and participated as a soldier in subduing the insurrection of soldiers at Carrickfergus. A few months later, at Cork, he again heard Thomas Loe, the Quaker preacher. Once again Penn was impressed with Quaker ideology, and the following year he became invested as a Quaker preacher. Penn remained a Quaker until his death, 51 years later.

In 1670, Penn addressed a large group of Quakers in London after the Quakers found their meeting house locked by order of the crown. He was arrested on the charge of unlawful assembly, disturbing the peace and causing a great tumult. At trial, the judge removed Penn from the courtroom for wearing his hat - after the court had instructed him to put it on.

After evidence was presented, the court ordered the jury to convict Penn of unlawful assembly, but it refused. The court then fined and imprisoned the jury. The jury was released, however, when the court of common pleas issued a writ of habeas corpus and held that judges may not compel a verdict in a criminal case against the wishes of the jury. Although Penn was found not guilty, he was imprisoned until fines for contempt of court were paid.

The importance of this event is reflected in the development of law in Pennsylvania and in murals depicting it above the governor's reception room in the Capitol.

Around 1672, Penn became one of the proprietors of New Jersey, and it was through this connection that he first became interested in colonization. A document dated 1676, Concessions and Agreement of the Proprietors, Freeholders and Inhabitants of the Province of West New Jersey in America, as signed by William Penn and others, has a number of provisions that were to be adopted later in the Frame of Government of Pennsylvania.

In the New Jersey document, for example, Penn wrote that because no man "hath power or authority to rule over men's consciences in religious matters," no settler shall be "in the least punished or hurt, either in person, estate or privilege for the sake of his opinion, judgment, faith or worship towards God in matters of religion."

This provision for religious freedom was to find expression a few years later in Penn's Laws Agreed Upon in England, a bill of rights for the early settlers of Pennsylvania.

In 1680, Penn applied to King Charles II for a grant of land in America, based upon losses his father has sustained in Ireland in the king's service. In 1681, the king approved the application, and Penn was granted a proprietary charter for some 47 million acres of land bordering Maryland and Delaware. The charter gave Penn large powers, but it reserved to the crown the authority to approve laws.

Penn's purpose was to found a commonwealth on liberal and humane principles, to provide a safe haven for persecuted Quakers and others, and to found a government on democratic ideas. In 1681, he wrote:

For the matters of liberty and privilege, I propose that which is extraordinary, and to leave myself and successors no power of doing mischief, that the will of one man may not hinder the good of an whole country.

The idea that one man should not rule a country is central to Penn's thinking, and Penn's democratic tendency is remarkable not only because it ran counter to the royalist sentiment of the time, but also because Penn was granted such broad powers as the proprietor of Pennsylvania that he could have become virtually a medieval ruler.

This limitation of power of the proprietor is a theme more fully developed in Penn's Frame of Government of Pennsylvania and Laws Agreed Upon in England of 1682, which were written by his own hand. The Frame of Government of Pennsylvania may be described as a charter of government, i.e., a document setting up the mechanics of government. Laws Agreed Upon in England may be described as an early bill of rights. In these writings,

Penn draws upon the Concessions and Agreement of West New Jersey, composed six years earlier, and states a general theory of government and principles upon which the commonwealth should be built. In the preface to the Frame of Government of Pennsylvania, Penn writes:

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 that 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 Part to those Laws, and more than this is Tyranny, Oligarchy, or Confusion.

This fundamental notion, that laws over which the people have some control are the ultimate source of government, not kings and not aristocrats, finds its source in English history perhaps as far back as the Coronation Charter of Henry I in 1100, certainly in the Magna Charta of 1215, and also in the 1628 Petition of Rights.

Penn's ideas, however, go beyond these predecessor documents, for Penn's document proposes participation of the people in government as a condition of civilization, not as an accommodation to demands made by opponents or potential opponents, and not as mere participants in a system governed by a king.

Considering the earlier documents granting a certain measure of freedom to Englishmen, Henry I issued the Coronation Charter in the year 1100 merely to get support for his accession to the throne, and it contained no method by which Henry's subjects could be sure that he would honor the charter. Similarly, in the Magna Charta of 1215, King John granted his subjects certain liberties and rules binding on the king himself in exchange for homage and fealty of his former opponents, but the document contains no method of enforcement. And the Petition of Rights of 1628, which purported to declare the fundamental rights of Englishmen, was regarded by the king as a mere declaratory document with no power to alter the constitutional balance between king and subjects.

While William Penn's Frame of Government of Pennsylvania does not contain provisions that balance power among branches of government such as are found in our own state and federal constitutions, it was a step closer to modern constitutions than these earlier documents, for it identified the people as a source of authority.

Thus it is not only the king, not only the proprietor who has authority to rule, but also the people themselves, who have authority to participate in the making of laws. The importance of this idea is not only that it lies at the basis of modern notions of democracy, but also that it is fundamentally different from the earlier statements of rights conceded by various English monarchs in that the concessions they made were merely gifts within a system of royal control, whereas Penn's entire system derives its power from and is controlled by the people.

For at least 500 years before Penn wrote the Frame of Government of Pennsylvania in 1682, a central problem of government in England had been how to ensure that the rights that had been conceded by the various monarchs would, in fact, be honored. As Thomas Hobbes wrote, covenants without the sword are but empty words. The accuracy of Hobbes' observation is well illustrated by reference to the royal actions that prompted the Petition of Rights of 1628.

Under Charles {I}, the Stuart theory of prerogative was pushed to the extreme. By 1628, Englishmen had suffered serious attacks upon their liberties. In the two years that had intervened since the dissolution of the previous Parliament, a forced loan had been demanded; men who refused to pay had been punished; the judges who had refused to enforce it had been dismissed. Soldiers had been billeted on the people and men committed to prison by the summary command of the king, without a trial and with bail refused.

Illustrative of these abuses is the Five Knights case of 1627. In this case, five knights were imprisoned without trial because they refused to contribute to a forced loan demanded by Charles I, and when the knights sought to be released by writ of habeas corpus, the Court of King's Bench rules in favor of the crown because "if a man be committed by the commandment of the King, he is not to be delivered by a Habeas Corpus in this court, for we know not the cause of the commitment."

When Penn wrote the Laws Agreed Upon in England he may have had these abuses in mind. Paragraphs 11 and 12 provide:

Eleventh. That all Prisoners shall be payable by sufficient Sureties, unless for Capital Offences, where the Proof is evident, or the Presumption great.

Twelfth. That all Persons Wrongfully imprisoned, or Prosecuted at Law, shall be double Damages against the Informer or Prosecutor.

Thus in 17th century Pennsylvania, bail was available - as it was not for the five knights - in cases other than capital cases, and those who were wrongfully imprisoned or prosecuted had double damages against the informer or prosecutor. Both provisions are significant enforcement tools against the unlawful exercise of power by the state.

Penn's religion emphasized the individual's power to receive insight directly from God, and this religious individualism influenced his political ideas of natural law and fundamental right. It is not surprising, therefore, that Penn would emphasize the people's role in government, and it is also to be expected that Penn would be interested in safeguarding the freedom of religious belief, particularly in light of his own experiences in England, where he was imprisoned, fined and treated harshly by English courts because of his religious convictions. Perhaps he had this in mind when he wrote in the Laws Agreed Upon in England, which were the laws he proposed to be adopted in the new colony, the following:

Fifth. That all Courts shall be open, and Justice shall neither be old, denyed or delayed.

Sixth. That in Courts all Persons of all Perswasions may freely appear in their own Way, and according to their own Manner, and there Personally Plead their own Cause themselves, or if unable, by their Friends. ....

Seventh. That all pleadings, Processes and Records in Courts shall be short, and in English, and in an ordinary and plain Character, that they may be understood, and Justice speedily administered.

Eighth. That all Tryals shall be by Twelve Men, and as near as may be, Peers or Equals, and of the Neighbourhood, and men with just Exception. ...

These provisions, that courts be open to the public, that justice be swift and unbiased, that those accused be allowed to present evidence for themselves or to have other present evidence on their behalf, that court proceedings be understandable and plain, and that trials be conducted with juries, are not only fitting rights of those who are to participate in government. They have been so important over time that each of these provisions is with us today. It has even been said that Penn's allowance for the presentation of the case by a friend of the accused is an early form of the right to counsel in a criminal case.

With respect to religion, Penn wrote:

Thirty-fifth. That all Persons living in this Province who confess and acknowledge the One Almighty and Eternal God, to be the Creator, Upholder and ruler of the world, and that hold themselves obliged in Conscience to live peaceably and justly in Civil Society, shall in no wayes be molested or prejudiced for their Religious Perswasion or Practice in matters of Faith and Worship, nor shall they be compelled at any time to frequent or maintain any Religious Worship, Place or Ministry, whatever.

The idea that one if free to practice religion without interference has been memorialized, of course, in the First Amendment to the U.S. Constitution and also in Article I, Section 3, of the Constitution of Pennsylvania.

Although we take this freedom for granted in modern times, it is likely that Penn did not take it for granted, for within 20 years of writing this provision, Penn himself had been imprisoned for the exercise of his religious beliefs.

Finally, returning to the concern that rights granted to the population at large by the sovereign must, in some manner, be enforceable, Penn wrote:

Thirty-nineth. That there shall be at no time any alteration of any of these Laws without the Consent of the Governour, his Heirs or Assigns, and Six parts of Seven of the Free-men met in Provincial Council and General Assembly.

The significance of this provision is that it is, again, a device to limit the power of the sovereign to withdraw rights once given. Interestingly, this provision came into play in 1699. Penn originally traveled to the new world in 1682 and stayed until 1684. He then returned to England, where he remained until 1699, when he again returned to Pennsylvania.

Upon his arrival in Pennsylvania, he found that there was sentiment for political changes. After months of discussion, the Frame of Government of Pennsylvania of 1682 was repealed by the necessary six-sevenths vote and the Charter of Privileges of 1701 was enacted in its place. Primarily, the 17 01 document provided for a unicameral legislature, but reflecting Penn's continuing concern for religious liberty, it again asserted the right of religious freedom and placed the right of religious freedom first of all the rights. Further, the Charter of Privileges provided that attempts to amend Article I (freedom of religion) would be invalid.

In summary, the importance of William Penn as a lawgiver is that he transcended the prevailing thought of his time in providing not only for the sovereign power of government residing in the people, but also in that he provided for religious liberty - again, against the current of his time. Moreover, his Frame of Government of Pennsylvania, and later the Charter of Privileges, became the foundations of the fundamental rights we enjoy today as expressed both in the federal and the several state constitutions.

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