Printed in Anno Regni Georgii II. Regis, Magnae Britanniae, Franciae & Hiberniae, Vigesimo Nono. At a General Assembly of the Province of Pennsylvania, begun and holden at Philadelphia, the Fourteenth Day of October, Anno Domini, 1755, … (Philadelphia, 1755), pp. 267–70.
On March 3, 1756, the Assembly minutes record that “A Bill for the better Regulation of such Soldiers as are or hereafter may be in the Pay of the Province, was brought in by Benjamin Franklin, by the Leave of the House, and read the first Time, and ordered a second Reading.”5 Proposed in part as a supplement to the Militia Act of Nov. 25, 1755, the bill sought to meet criticisms of its inadequacy and in particular to provide punishment for mutiny and desertion among troops in active service. Franklin’s own experience on the frontier may have convinced him that such a measure was necessary.6
After much discussion the bill was referred to a committee of seven, including Franklin, for amendment, over the objection of four strict Quakers who apparently wanted to kill it entirely.7 An amended draft under a new title was reported two days later, whereupon, after two readings and “considerable Debate,” the Assembly rejected a third reading in a recorded vote, 17 to 13, Franklin voting in the minority.8 The folowing morning, speaking as one of the provincial commissioners, Franklin “represented to the House, that there was an absolute Necessity for some Law to be speedily passed for the better Regulation of the Soldiers in the Pay of the Province, or that otherwise they must be disbanded; and therefore moved, that though the Bills which had already been prepared for that Purpose were not agreeable to the Mind of the House, yet that the House should meet again this Afternoon [Saturday], in order to consider if some other Measures could not be fallen upon to answer the good End proposed.” After defeating three motions to adjourn, the Assembly agreed to Franklin’s suggestion and appointed a new committee, consisting of the same members as the last with three additions, “to prepare and bring in another Bill for regulating the Officers and Soldiers commissioned and raised by the Governor for the Defence of the Province.”9 The bill, brought in on March 16 and passed the next day, had only two votes of strict Quakers recorded against it.1
The Assembly adjourned at once and Franklin, acting under instructions, took the bill with him when he left on his journey to Virginia on post-office business and delivered it on the 19th to Morris, who had gone to Newcastle, Del.2 Franklin was in Virginia throughout all the subsequent negotiations on the measure so had nothing to do with them. Morris referred the bill to his attorney general and then altered it in Council to accord with the Virginia law for the same purpose and sent it back to the Assembly, April 6, when that body had reconvened.3 The House accepted a proposal to empower the governor to issue commissions for holding general courts martial, but rejected the other amendments. In further negotiations each side made some concessions and then on April 10 Morris asked for a conference with a committee of the Assembly. The speaker and four other members, who formed this group, reported back that the governor’s amendments “might be necessary,” as the Assembly journal recorded their statement, or “were just and ought to be agreed to,” as the Council minutes put it. A further concession by Morris on a shorter duration for the measure than he had wanted led to final agreement. The House accepted the bill as amended and the governor signed it on April 15.4
No copy of Franklin’s original bill appears to have survived and the many unspecified changes made before final enactment of the measure prevent identification of his initial proposals. It is apparent, however, that the specification of the forces to which it would apply, the authority for convening general courts martial, and the sharply limited duration of the law were among the amended provisions. Perhaps his major contribution—no small accomplishment itself—consisted in persuading the Assembly to pass any Mutiny Act at all.
[April 15, 1756]
An Act for regulating the Officers and Soldiers commissionated and raised by the Governor for the Defence of this Province
Whereas, in Pursuance of the Powers granted by the Royal Charter to our late Honoured Proprietary William Penn, Esquire, and his Successors, and to his or their Deputy or Deputies, the Governor hath thought fit to commissionate a Number of Officers, and raise a considerable Body of Forces under them, for putting a Stop to the cruel and barbarous Ravages and Murders committed by the Indians upon the peaceable Inhabitants of the Frontier Parts and Counties within this Province. And forasmuch as Numbers of armed Men assembled together, without any clear and express Law for their Government, may become dangerous to the King’s Peace, ruinous to each other, and of little Service to the Publick; therefore BE IT ENACTED by the Honourable Robert Hunter Morris, Esq; Lieutenant-Governor under the Honourable Thomas Penn, and Richard Penn, Esquires, true and absolute Proprietaries of the Province of Pennsylvania, and Counties of New-Castle, Kent and Sussex, upon Delaware, by and with the Advice and Consent of the Representatives of the Freemen of the said Province, in General Assembly met, and by the Authority of the same, That all Officers, so as aforesaid commissioned and in Pay, or that shall hereafter be commissioned and in Pay, and such Soldiers as have been regularly enlisted, or shall voluntarily engage, or be enlisted, at any Time after the Publication of this Act, and be paid and maintained by the Crown, at the Charge of this Province, shall be, for their better Government, subject to the same Laws, Rules, Duties and Trials, and be liable to the same Punishments, during the Continuance of this Act, as they would be by Virtue of an Act of Parliament passed in the Twenty-eighth Year of the present Reign, intituled, “An Act for punishing Mutiny and Desertion,” &c.5 if joined by any of his Majesty’s British Forces.6
And FORASMUCH as there is at present no Commission or Warrant from the Crown to the Governor of this Province for the holding General Courts Martial within the same, BE IT FURTHER ENACTED by the Authority aforesaid, That the Governor, or Commander in Chief of this Province for the Time being, may, from time to time, grant Commissions under the Great Seal to any Officers, not under the Degree of a Field Officer, for the holding General Courts Martial within this Province, which shall consist of the same Number of Officers of the like Rank, and shall have the same Powers and Authorities, and shall proceed in the same Manner as in the said Act of Parliament is directed and prescribed; in which Courts Martial all the Offences specified in the said Act of Parliament, and his Majesty’s Articles of War, committed by such Officers or Soldiers, shall be tried and proceeded against in such Manner as by the said Act and Articles is directed; Provided, that all and every Officer or Officers presiding at any Trial or Trials whereupon Sentence of Death shall be adjudged and given against any Officer or Soldier, by Virtue, and in Pursuance of the said Act of Parliament, shall transmit, as soon as may be, to the Governor or Commander in Chief for the Time being, a fair Transcript of their Proceedings and Sentences under their Hands and Seals, and that the Execution of such Sentences shall be suspended until the Pleasure of the Governor or Commander in Chief be known, and his Warrant, under the Great Seal, be received for the same. Provided Nevertheless, That nothing herein contained shall extend, or be construed to exempt any Officer or Soldier whatsoever from being proceeded against by the ordinary Course of the Law, or be any-wise construed to extend to or concern any of the Militia Forces of this Province,7 or to authorize the Enlisting of indented Servants or Apprentices,8 or to bring over any Part of the said Act of Parliament not relating to the Government of Soldiers, the Manner of enlisting them, the Offences punishable by Sentence of Court Martial, the Mode of Trial, and the Punishments to be inflicted, any Thing herein contained to the contrary notwithstanding.
This Act to continue, and be in Force, until the Thirtieth Day of October next, and no longer.9
5. Votes, 1755–56, p. 69.
6. For the Militia Act see above, p. 266. On November 18, even before BF had introduced that bill, Morris had asked the Assembly for a law modeled on the British Mutiny Act to regulate provincial forces not acting jointly with regular British troops, saying that it would be impossible to govern them without it. Ibid., p. 26.
7. Ibid., p. 72.
8. Ibid., p. 74. The revised title was “A Bill for regulating such Soldiers as are raised, paid, and maintained within this Province, at the Charge of the Crown, out of the Sixty Thousand Pounds granted for the King’s Use.”
9. Ibid., pp. 74–5. Six of the seven members of the original committee had voted in the minority which favored the passage of the first bill in its revised form. The three members now added to the committee were all members of the majority against that measure.
1. Ibid., p. 75. What changes the new committee made in the bill cannot now be determined. It is obvious that BF had convinced some of the seventeen opponents of the earlier measure that some immediate action was imperative, but the virtual disappearance of recorded opposition to the new bill when it came to a vote suggests that the added members of the committee had been able to introduce important modifications. The substantially altered title, prescribed by the House itself, indicates an attempt to shift the responsibility for the troops concerned from the Assembly to the governor.
2. Ibid., p. 77; Pa. Col. Recs., VII, 63–4.
3. Pa. Col. Recs., VII, 70, 73; Votes, 1755–56, p. 78. The Virginia law is in William W. Hening, The Statutes at Large: being a Collection of all the Laws of Virginia … VI (Richmond, 1819), 530–44.
4. Pa. Col. Recs., VII, 76, 77, 82, 92; Votes, 1755–56, pp. 78, 79–80, 82, 83, 84.
5. The Mutiny Act, annually passed by Parliament to continue the longstanding British regulations for governing the army, carried the death penalty for desertion, refusal to obey superior officers, and other major military crimes. See BF’s discussion of this law in “A Dialogue between X, Y, and Z,” above, pp. 299–301.
6. This clause would seem to give the act no immediate effect since none of “his Majesty’s British Forces” were serving in Pennsylvania at the time of enactment. Detachments of Shirley’s regiment and of the New York Independent Companies had been stationed in Reading and Easton during the previous winter, but had returned to New York in March. I Pa. Arch., II, 596. The limitation is the more puzzling in view of the act’s preamble which states clearly its intention to regulate provincial forces of the sort which had been on duty during the winter and were still serving in “the Frontier Parts and Counties within this Province.” Subsequent statements by Morris, BF, and others, however (see I Pa. Arch., II, 691, and below, p. 471, for examples), and the fact that in November 1756 and January 1757 the next governor, William Denny, accepted without demur on this point two renewals of the act containing the same clause, make it clear that the Pennsylvanians believed it adequately regulated their provincial forces even when no regular British troops were stationed or operating within their local boundaries.
7. Militia in Great Britain were likewise exempted from the provisions of the Mutiny Act.
8. This clause, too, may have figured in the compromises attending the bill’s passage. See above, pp. 396–400, for the dispute over enlistment of servants.
9. This act was renewed Nov. 4, 1756, following its expiration.