the council; consequently all who, for the future, were to serve in that capacity, were to be nominated by the governor; consequently were to serve on what terms he pleased. Instead of having but three voices in seventy-two, he was left single in the executive, and at liberty to restrain the legislative by refusing his assent to their bills whenever he thought fit.

On the other hand, the assembly, who at first could not propound laws, though they might amend or reject them, were put in possession of that privilege; and, upon the whole, there was much more room for acknowledgments than complaints.

How much soever the governor had grown upon Mr. Penn, and how much soever his concern for others had worn off, when raised to a sphere above them, it is plain he had not forgotten his own trial, nor the noble commentary upon Magna Charta, which, in his tract called, The people's ancient and just liberties asserted, he had upon that occasion made public; wherein he says,

"There were but two sorts of government: will and power; or, condition and contract. That the first was a government of men, the second of laws. That universal reason was and ought to be, among rational beings, universal law that of laws, some were fundamental and immutable; some temporary, made for present convenience, and for convenience to be changed. That the fundamental laws of England were of all laws most abhorrent of will and pleasure: and, that till houses should stand without their own foundations, and Englishmen cease to be Englishmen, they could not be cancelled, nor the subjects deprived of the benefit of them."

Such as it was, by the freemen of the province it was thankfully accepted, but by those of the territory unanimously declined; and in this divided condition this new Lycurgus, as Montesquieu calls him, left them.

Andrew Hamilton, Esq. (not the celebrated barrister of that name) was the person appointed to be his substitute; and the principal effort of his administration was to bring

about a re-union, which being at length found impracticable (the territory-men still persisting in their refusal of the charter) the province, in virtue of that charter, claimed a separate representative of their own, which in point of number was fixed at eight members for each of the three counties, and two for the city of Philadelphia, now so constituted by the proprietary's special charter; and after duly qualifying themselves according to law, their first resolution was,

"That the representatives or delegates of the freeholders of this province, according to the powers granted by the proprietary and governor by his charter, dated the eighth day of October, Anno Domini 1701, may meet in assembly on the fourteenth day of October, yearly, at Philadelphia, or elsewhere, as shall be appointed by the governor and council for the time being, and so continue on their own adjournments from time to time during the year of their service, as they shall find occasion, or think fit, for preparing of bills, debating thereon, and voting, in order to their being passed into laws; appointing committees, redressing of grievances, and impeaching of criminals, as they shall see meet, in as ample manner as any of the assemblies of this province and territories have hitherto at any time done, or might legally do; as effectually, to all intents and purposes, as any of the neighbouring governments under the crown of England have power to do, according to the rights and privileges of the freeborn subjects of England, keeping to the rules and prescriptions of the parliament of England; as near as may be, respecting the infancy of the government and the capacities of the people: and that the said assembly, as often as the governor for the time being shall require, attend on him, in order to legislation; and to answer all other just ends of assemblies on any emergencies or reasons of state; but shall not be subject at any time to be by him adjourned, prorogued, or dissolved."

This was the state of things when John Evans, Esq. appointed deputy-governor on the death of Mr. Hamilton, arrived in the province, in the beginning of the year 1704.

What his commission and instructions were does not ap

pear; but having convened the representatives both of the province and territories, to meet him at the same time in his council-chamber, he affected to be surprised at finding them in separate states; said her majesty considered them as one entire government; and earnestly pressed them both to come to an amicable agreement, not without insinuation, that neither of them would otherwise be in a condition to act at all.

The provincials, in return, intimated, that they should be heartily glad of a farther union with the territories if it could be obtained without prejudice to their constitution or to their charter: said, those of the territory had been the occasion of inserting that clause in their charter by which they had been enabled to act separately: made professions of so much good will and good neighbourhood as might prevent all inconveniencies from their separation: that they had appointed a committee to confer with them, &c.

Conferences were accordingly opened between the two houses, which produced two papers; one from the territorymembers, not over ingenuous in its contents, offering now to receive the charter they had till then rejected, and to cooperate with those of the province: and the other, a reply from the provincials, charging them with inconsistency, and declaring, that seeing they were by their formal refusal necessitated to form themselves into a distinct assembly, and were now established accordingly, it was not in their power, as they conceived, without a violation of the charter and trust reposed in them, to entertain any expedient to reconcile their request of an union with the said charter, &c.

Thus all negotiation on this head came to an end, and the provincials were already in disgrace with their new governor, for showing so little regard to his recommendation.

A bill to confirm their charter, and some proceedings to correct the exorbitancies of the proprietary land-office, rendered them yet farther obnoxious; and they also were în their turns exasperated by some intemperate censures passed on their proceedings by one of the governor's council.

Nor was this all; the bill to confirm their charter, &c.

was sent back, with such amendments as appeared to the house destructive to the present constitution, and for that reason drew from them the following unanimous resolutions and address founded thereon: to wit,

"Resolved, that what is proposed for amendment in the fourth and fifth pages of the bill, will render the said charter useless and ineffectual, and bring an odium upon the proprietary, who granted this instead of other charters, wherein were larger and greater privileges granted to the first adventurers and purchasers of land in this province, which they expected (as it was their undoubted right) to enjoy, as well as the lands they bought: therefore this house cannot admit of those amendments; because they are also destructive to the present constitution, by which the representatives of the free people of this province are now assembled, and are resolved to assert and maintain.

"Resolved, that the method of passing bills by the governor should be adjusted and settled; but whether the governor thinks fit to be in council or not at the passing of bills is submitted to him.

"Resolved, that it is consistent with the late king's letters patent, and the said charter of privileges, that the council (as now chosen) should have a share in the legislation, unless it be when the government is in the council; which this house agrees may be upon the death of the governor, unless other provision be made by the governor in chief; and that a clause may be added to the bill for that purpose."

"To John Evans, Esq. lieutenant-governor, &c. "The address of the assembly of the said province, sitting at Philadelphia, the twelfth day of August, 1704, "In all humble manner sheweth,

"That this assembly, having taken into their serious consideration the matters yesterday debated in the conference, relating to the proposed amendments to the bill intituled, An act, for removing and preventing all questions and disputes concerning the convening and sitting of this assembly, &c. as also for confirmation of the charter of privileges, do find

nothing advanced that can reconcile the said amendments to the constitution of our charter; and thereupon do come to this resolve, That to admit of the power of dissolution, or prorogation in the governor, will manifestly destroy or frustrate the elections settled by the charter, which is a perpetual writ, supported by the legislative authority of this government, and will make way for elections by writs grounded upon a prerogative, or rather a pre-eminence, which the proprietary and his deputy are by charter debarred to resume.

"But to take off the jealousies that may arise upon that part of the charter and bill, which impowers us to sit upon our own adjournments, we are willing to settle and limit the times of adjournment and sitting; and in order thereunto propose to the governor,

"That a clause be added to the aforesaid bill, that the time of the assembly's sitting from the fourteenth of October, yearly, shall not exceed twenty days, unless the governor for the time being and assembly shall agree to a longer time; and the adjournment from that time shall not be less than three months; and so for every time of sitting, and every adjournment within the year, respectively.”

The return to this was as follows: viz.

From the governor in council to the assembly.

"The governor upon the best advice he can have upon the point of dissolution and prorogation, cannot be of opinion, that the proprietary has granted away that power; and that therefore it is very unsafe for him to do it. He is very unwilling to have any misunderstanding with the assembly, and shall always be inclinable to make things easy in this, as well as other points; and desires to leave it till further directions can be had from England, to which he thinks it is fit the matter should be referred: and in the mean time recommends to the assembly, to proceed to the dispatch of such other business of importance as lies before them, and the exigencies of the government necessarily require; and to which the opportunity now presented to them ought to invite and encourage them."

And this was the rejoinder of the assembly.