Benjamin Franklin Papers

From Benjamin Franklin to the Freemen of Pennsylvania, 28 September 1764

To the Freemen of Pennsylvania

Printed broadside: Library Company of Philadelphia; draft (fragment): American Philosophical Society8

Governor Penn had asked the Assembly for a militia bill on Feb. 4, 1764, and the House sent him one on the 28th. After conferring with his Council the governor returned the bill on March 12 with a series of proposed amendments, but when the House considered the matter on the 17th it took no formal action on his proposals. In the “Necklace of Resolves” adopted on March 24, four resolutions (nos. 17–20) explained briefly the Assembly’s objections to Penn’s amendments, and in Franklin’s “Explanatory Remarks,” March 29, he elaborated on the first of these objections.9

Penn made his initial request at the time when the Paxton Boys were beginning their march on Philadelphia, and he seems at the moment to have wanted the bill only as a means of dealing with civil disorder.1 The men who were creating that disorder came from the frontier counties. After the Paxton Boys had gone home and the immediate threat was ended, however, it was easy for Penn and his supporters to cite the Assembly’s failure to pass an acceptable militia bill as another illustration of the Quaker party’s refusal to adopt any constructive measure for the general protection of the colony. The most vehement complaints of the Assembly’s “do-nothing” attitude in matters of defense came from the frontier counties. In the election campaign of 1764 the proprietary party was therefore able, paradoxically enough, to use the failure of the militia bill as an argument for political support from the very areas that had first provoked Penn into asking for the bill.

Franklin and his friends were obviously sensitive to the criticism. What particular attack led him to produce this broadside as a defense of the Assembly’s rejection of the governor’s amendments is not certainly known. It is possible, as the opening lines suggest, that some deputation of citizens waited upon him with a specific request for a statement. More probably, he adopted this form as a convenient way of presenting his reply to one of the charges generally circulating among the voters during the final days of the campaign. He may have been moved to this last contribution to the debate by a note appended to an unsigned address “To the Freeholders and Electors Of the Province of Pennsylvania” printed in a Supplement to the Pennsylvania Journal, Sept. 27, 1764. Specifically charging Galloway and Franklin, “these pretended Sticklers for Liberty,” with a desire to have regiments of British regulars stationed in the city and province, the writer declared that these men “would dragoon you into their Measures had they sufficient Power, tho’ they are even now alarming you with groundless apprehensions of a Militia in order to promote their own purposes.”

To THE Freemen
OF Pennsylvania

Philadelphia, September 28, 1764.


Your Desire of knowing how the Militia Bill came to fail in the last Assembly, shall immediately be comply’d with.

As the Governor press’d 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, form’d the Bill so as 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 Company should chuse, 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, chuse and recommend three Persons for each Office of Colonel, Lieutenant-Colonel, and Major; out of which three, the Governor was to commission one, which ever he pleased, to each of the said Offices.2

The Governor’s Amendment to the Bill in this Particular, was, to strike out wholly this Privilege of the People, and 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 Commission’d Officers for Disobedience to his Commands; but the Non Commission’d Officers, or common Soldiers, who, for the same Offence, the Assembly propos’d to fine at Ten Pounds, the Governor insisted should be fin’d Fifty Pounds.3

These Fines, and some others to be mention’d 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, compos’d 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.4

That you may be assur’d, I do not misrepresent this Matter, I shall give you the last mention’d Amendment (so call’d) at full Length; and for the Truth and Exactness of my Copy I dare appeal to Mr. Secretary Shippen.5

The Words of the Bill, P. 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 requir’d this Addition immediately to follow the Words [convicted thereof] viz. “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 the said Court; and such Courts Martial shall and are hereby impowered 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, intituled, An Act for forming and regulating the Militia of the Province of Pennsylvania, without Partiality, Favour 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, impannelled by a Sheriff, in whose Appointment the People have a Choice; the Prisoner too has a Right to challenge twenty of the Pannel, 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 their 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 tho’ a common Militia Man is to be tried, no common Militia Men 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 forg’d for you by Proprietary Faction! Who advis’d the G-----r is not difficult to know. They are the very Men, who now clamour 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!6 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 plac’d 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.”* 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, viz. 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 lik’d best?

However, the Courts Martial being establish’d, and all of us thus put into his Honour’s absolute Power, the Governor goes on to enhance the Fines and Penalties: Thus in Page 49 of the Bill, where the Assembly had propos’d the Fine to be Ten Shillings, the Governor requir’d it to be Ten Pounds: In Page 50, where a Fine of Five Pounds was mention’d, 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 Languages of the Province, with all the Virulence that Reverend Malice can dictate, enforc’d by numberless barefac’d Falshoods, that only the most dishonest and Base would dare to invent, and none but the most Weak and Credulous can possibly believe.

[Note numbering follows the Franklin Papers source.]

8The surviving portion of the draft (in BF’s hand) consists of the final page only; it contains the second half of the next to last paragraph and the whole of the final one. Someone used the blank part of this page to practice fine penmanship; it was probably Sarah Franklin (aged 21 in 1764), for the name “Sally” appears twice, and “Franklin” three times, along with other words carefully written.

9See above, pp. 74–5, 122, 130–1, 141–2.

1His message to the Assembly of February 4 asked for a militia act because the security of the government was endangered, the British regulars guarding the friendly Indians might be inadequate to protect them, and those troops would soon be ordered away in any case. A militia act, he said, was “the only natural and effectual Means of preserving the public Tranquility, and enabling the civil Power to enforce the Laws, and vindicate the Honour of the Government.” Votes, 1763–64, p. 43.

2BF’s Militia Act of 1755, the first ever passed in the province, had provided for the election of company officers by the men and their appointment by the governor, allowing him only the right of a choice of two substitute nominees in case he rejected the men’s first candidate. The company officers were to elect regimental officers under a similar system. Above, VI, 270–1. The act had been disallowed in 1756 with this arrangement cited as one of its defects. Pa. Col. Recs., VII, 274–5, 276–8. For BF’s probable familiarity with the system of elected militia officers in some of the New England colonies and for his defense of the 1755 provisions, see above, VI, 268 n, 298–9.

3The act of 1755 did not specify the amounts of fines which might be levied. After the governor and the regimental officers had drawn up articles of war and the men had voluntarily subscribed to them, courts-martial might impose such “Pains, Penalties, Punishments and Forfeitures” upon offenders as the articles prescribed. Above, VI, 271–2.

4The act of 1755 made no provision for trial of militiamen by civil courts; the fact that the officers who would compose the courts-martial had been elected was presumably thought to be a sufficient safeguard against arbitrary sentences.

5Joseph Shippen, Jr., son of Edward Shippen of Lancaster. His grandfather and an uncle were also named Joseph.

6See above, pp. 27–8. BF had been a member of the assembly committee that had proposed this legislative change of venue.

7The words within quotation marks in the text could serve as a close paraphrase of passages in virtually all letters from secretaries of state calling on the province to raise troops during the Seven Years’ War; see for example, Votes, 1757–58, p. 50; 1758–59, p. 27.

Authorial notes

[The following note(s) appeared in the margins or otherwise outside the text flow in the original source, and have been moved here for purposes of the digital edition.]

º *See Secretary of State’s Letters in the printed Votes.7

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