Lord Chief Justice North’s Memorandum on William Penn’s Patent (1680)

Introduction

One of the key moments in the later Stuart empire was the transition from an empire of autonomous disconnected possessions towards one characterized by centralized administration and standardized imperial oversight. The empire’s origins in the early 17th century had been shaped by private ventures, territories and trading networks granted to proprietors or corporations with little state involvement. By the Restoration of the monarchy in 1660, only a small handful of overseas possessions, such as Virginia and Jamaica, were under the administration of governors appointed directly by the monarch. This problem only grew in the first decade of the new reign – while most older colonies continued to be governed by proprietors or companies, such as Maryland, Bermuda, Massachusetts, New Hampshire and Maine, they were joined by new privately governed polities like Connecticut, Rhode Island, New York, and Carolina.

This situation produced no shortage of conflicts for the nascent imperial administration, which sought to impose universal edicts like the Navigation Acts and resolve disputes between England’s heterogenous empire of autonomous, privatized components. Repeated attempts to establish royal authority over independent colonies like Massachusetts Bay failed thanks to the generous privileges granted to the colony in its charter.¹For a recent treatment of the most serious attempt to curtail Massachusetts Bay’s autonomy, see Adrian Chastain Weimer, A Constitutional Culture: New England and the Struggle Against Arbitrary Rule in the Restoration Empire (Philadelphia: University of Pennsylvania Press, 2023). Many of the primary sources related to this are available in John Romney Brodhead, ed. Documents Relative to the Colonial History of the State of New-York; Procured in Holland, England, and France (Albany: Weed, Parsons, and Company, 1853), III: 39-120. In 1675 the failure of these attempts to erect a uniform system of rule for the colonies prompted Charles II to create a new committee of the Privy Council, the Lords of Trade and Plantations, to gather information on the overseas plantations and set about establishing royal authority over the colonies.

William Penn’s 1680 patent for the government of his own proprietary colony, Pennsylvania, fell in the middle of this process. Charles II offered Penn the large territory in America as payment for a debt he owed to Penn’s father.²Andrew R. Murphy, “The Limits and Promise of Political Theorizing: William Penn and the Founding of Pennsylvania” History of Political Thought 34 (Winter 2013) 4: 645. Yet Charles’s Lords of Trade were adamant that this new grant should not create an independent colony like Massachusetts Bay. On January 22, 1680/1, they asked one of their number, Francis North, Lord Chief Justice of the Court of Common Pleas, to recommend such alterations to the Pennsylvania charter as would “provide… that all acts of sovereignty as to peace and war…and… all acts of Parliament concerning trade and navigation” be drawn to “consist with the King’s interest and service.”³“Minute of the Committee of Trade” (January 22, 1680/1) TNA, CO 391/3, pp 249-50. North’s recommendations indicate Whitehall’s turn against private colonies. Penn, North said, should transmit all laws to the Privy Council for royal approval and be subject to “a strict provision… for observing the Acts of Navigation,” the violation of which would cost him his patent. North recommended that the King should be empowered to hear appeals from the colony, and that the colony’s policies as to war and peace should be directed by Whitehall. Finally, North recommended a broad provision for preserving royal authority over the colony. “All and singular the powers and authorities hereby given unto the said William Penn… for and concerning matters both ecclesiastical, civil, and military within the said province… shall be subordinate and subject to the power and regulation of the Lords of the Privy Council.”⁴“My Lord Chief Justice North’s Memorandum on Mr. Penn’s Patent” (ca. January, 1680/1) TNA, CO 1/46, f 101r-v. In other words, North recommended that Penn’s power to govern his proprietorship should be entirely under the oversight of the Lords of Trade.

Although North’s broadest recommendation was not adopted (presumably Penn would not have accepted such a circumscribed patent as payment for the debt) Pennsylvania’s charter was more severely restricted than previous grants in that it required Penn to enforce the Navigation Acts and admit royal customs officials on pain of forfeiture, and made the colony’s laws subject to royal review.⁵“Charter of Pennsylvania” (Feb 28, 1680/1) Francis Newton Thorpe, ed. The Federal and State Constitutions, Colonial Charters, and Other Organic Laws, of the States, Territories, and Colonies, Now or Heretofore Forming the United States of America (Washington: Government Printing Office, 1909), V: 3035-3044. Compare to the proprietary grant given to Lord Baltimore for Maryland in 1632. “Charter of Maryland” (June 20, 1632) The Federal and State Constitutions, III: 1677-1686. These modifications were of a piece with the changing philosophy of imperial administration in the last decade of Charles II’s reign. A little over a year later, when Robert Barclay and James, Earl of Doncaster petitioned for patents which would have given them proprietary governments in East Jersey and Florida, the Lords were very wary of “the inconveniencies that arise by the granting of proprieties, both in relation to his Majesty’s prerogative, his revenue, and his other plantations.” Ultimately, they rejected these petitions on the grounds that “it is not convenient for his Majesty to constitute any new proprieties in America, or to grant any further powers which may render the plantations less dependent upon the crown.”⁶“Minute of the Committee of Trade” (September 12, 1682); (September 30, 1682) TNA, CO 391/4, pp 55-6; 64. Over the 1680s, a number of colonies – including New Hampshire, Maine, Massachusetts, Rhode Island, Connecticut, New York, and Bermuda – would lose their private privileges and become royal colonies. North’s recommendations signaled the future of English imperial policy.

– Boone J. Ayala