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CCLIV: REMARKS ON A PARTICULAR MILITIA BILL REJECTED BY THE PROPRIETOR’S DEPUTY, OR GOVERNOR - Benjamin Franklin, The Works of Benjamin Franklin, Vol. IV Letters and Misc. Writings 1763-1768 [1904]

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The Works of Benjamin Franklin, including the Private as well as the Official and Scientific Correspondence, together with the Unmutilated and Correct Version of the Autobiography, compiled and edited by John Bigelow (New York: G.P. Putnam’s Sons, 1904). The Federal Edition in 12 volumes. Vol. IV (Letters and Misc. Writings 1763-1768).

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CCLIV

REMARKS

ON A PARTICULAR MILITIA BILL REJECTED BY THE PROPRIETOR’S DEPUTY, OR GOVERNOR

TO THE FREEMEN OF PENNSYLVANIA

Philadelphia, 28 September, 1764.

Gentlemen:

Your desire of knowing how the militia bill came to fail, in the last assembly, shall immediately be complied with.

As the governor pressed hard for a militia law, to secure the internal peace of the province, and the people of this country had not been accustomed to militia service, the House, to make it more generally agreeable to the freeholders, formed the bill so that they might have some share in the election of the officers; to secure them from having absolute strangers set over them, or persons generally disagreeable.

This was no more than that every person should choose, and recommend to the governor, three persons for each office of captain, lieutenant, and ensign; out of which three the governor was to commission one that he thought most proper, or which he pleased, to be the officer. And that the captains, lieutenants, and ensigns, so commissioned by the governor, should, in their respective regiments, choose and recommend three persons for each office of colonel, lieutenant-colonel, and major; out of which three the governor was to commission one, whichever he pleased, to each of the said offices.

The governor’s amendment to the bill in this particular was, to strike out wholly this privilege of the people, and to take to himself the sole appointment of all the officers.

The next amendment was, to aggravate and enhance all the fines. A fine that the Assembly had made one hundred pounds, and thought heavy enough, the governor required to be three hundred pounds. What they had made fifty pounds, he required to be one hundred and fifty. These were fines on the commissioned officers for disobedience to his commands; but the non-commissioned officers, or common soldiers, whom, for the same offence, the assembly proposed to fine at ten pounds, the governor insisted should be fined fifty pounds.

These fines, and some others to be mentioned hereafter, the assembly thought ruinously high. But when, in a subsequent amendment, the governor would, for offences among the militia, take away the trial by jury in the common courts; and required that the trial should be by a court-martial, composed of officers of his own sole appointing, who should have power of sentencing even to death; the House could by no means consent thus to give up their constituents’ liberty, estate, and life itself, into the absolute power of a proprietary governor; and so the bill failed.

That you may be assured I do not misrepresent this matter, I shall give you the last-mentioned amendment (so called) at full length: and for the truth and exactness of my copy, I dare appeal to Mr. Secretary Shippen.

The words of the bill, page 43, were: “Every such person so offending, being legally convicted thereof,” &c. By the words legally convicted was intended a conviction after legal trial, in the common course of the laws of the land. But the governor required this addition immediately to follow the words “convicted thereof,” namely, “by a court-martial, shall suffer death, or such other punishment as such court, by their sentence or decree, shall think proper to inflict and pronounce. And be it farther enacted by the authority aforesaid, that when and so often as it may be necessary, the governor and commander-in-chief for the time being shall appoint and commissionate, under the great seal of this province, sixteen commissioned officers in each regiment; with authority and power to them, or any thirteen of them, to hold courts-martial, of whom a field officer shall always be one, and president of said court; and such courts-martial shall and are hereby empowered to administer an oath to any witness, in order to the examination or trial of any of the offences which by this act are made cognizable in such courts, and shall come before them. Provided always, that, in all trials by a court-martial by virtue of this act, every officer present at such trial, before any proceedings be had therein, shall take an oath upon the holy Evangelists, before one justice of the peace in the county where such court is held; who are hereby authorized to administer the same, in the following words, that is to say: ‘I, A B, do swear that I will duly administer justice according to evidence, and to the directions of an act entitled, An Act for forming and regulating the militia of the province of Pennsylvania, without partiality, favor, or affection; and that I will not divulge the sentence of the court, until it shall be approved of by the governor or commander-in-chief of this province for the time being; neither will I, upon any account, at any time whatsoever, disclose or discover the vote or opinion of any particular member of the court-martial. So help me God.’ And no sentence of death, or other sentence, shall be given against any offender, but by the concurrence of nine of the officers so sworn. And no sentence passed against any offender by such court-martial shall be put in execution, until report be made of the whole proceedings to the governor or commander-in-chief of this province for the time being, and his directions signified thereupon.”

It is observable here, that, by the common course of justice, a man is to be tried by a jury of his neighbours and fellows, empanelled by a sheriff, in whose appointment the people have a choice. The prisoner too has a right to challenge twenty of the panel, without giving a reason, and as many more as he can give reasons for challenging; and before he can be convicted, the jury are to be unanimous; they are all to agree that he is guilty, and are therefore all accountable for the verdict. But, by this amendment, the jury (if they may be so called) are all officers of the governor’s sole appointing; and not one of them can be challenged; and, though a common militia-man is to be tried, no common militia-man shall be of that jury; and, so far from requiring all to agree, a bare majority shall be sufficient to condemn you. And, lest that majority should be under any check or restraint, from an apprehension of what the world might think or say of the severity or injustice of their sentence, an oath is to be taken, never to discover the vote or opinion of any particular member.

These are some of the chains attempted to be forged for you by the proprietary faction! Who advised the governor is not difficult to know. They are the very men who now clamor at the assembly for a proposal of bringing the trial of a particular murder to this county from another, where it was not thought safe for any man to be either juryman or witness, and call it disfranchising the people, who are now bawling about the constitution, and pretending vast concern for your liberties. In refusing you the least means of recommending, or expressing your regard for, persons to be placed over you as officers, and who were thus to be made your judges in life and estate, they have not regarded the example of the King, our wise as well as kind master; who, in all his requisitions made to the colonies, of raising troops for their defence, directed, that, “the better to facilitate the important service, the commissions should be given to such as, from their weight and credit with the people, may be best enabled to effectuate the levies.”1 In establishing a militia for the defence of the province, how could the “weight and credit” of men with the people be better discovered, than by the mode that bill directed, namely, by a majority of those that were to be commanded, nominating three for each office to the governor, of which three he might take the one he liked best?

However, the courts-martial being established, and all of us thus put into his Honor’s absolute power, the governor goes on to enhance the fines and penalties. Thus, in page 49 of the bill, where the assembly had proposed the fine to be ten shillings, the governor required it to be ten pounds. In page 50, where a fine of five pounds was mentioned, the governor’s amendment required it to be made fifty pounds. And, in page 44, where the assembly had said, “shall forfeit and pay any sum, not exceeding five pounds,” the governor’s amendment says, “shall suffer death, or such other punishment as shall, according to the nature of the offence, be inflicted by the sentence of a court-martial.”

The assembly’s refusing to admit of these amendments in that bill, is one of their offences against the lord proprietary, for which that faction are now abusing them in both the languages1 of the province, with all the virulence that reverend malice can dictate; enforced by numberless barefaced falsehoods, that only the most dishonest and base would dare to invent, and none but the most weak and credulous can possibly believe.

Veritas.

[1 ]See Secretary of State’s Letters in the printed Votes.

[1 ]That is, the English and German languages, both of which were used in Pennsylvania.—Editor.