Board of Trade: Report on Pennsylvania Laws
Copy: Public Record Office, Colonial Office Papers, 5/1295, pp. 296–413
Franklin’s efforts to settle the Assembly’s differences with the Proprietors by direct negotiations had ended in November 1758 with their reply to his Heads of Complaint and their refusal to deal further with him personally (above, VIII, 178–83, 193–4). Thereafter it became necessary to transfer the debate to more public platforms and to bring the issues to adjudication by the Privy Council after hearings before the Board of Trade and the Council’s Committee for Plantation Affairs. Franklin’s petition, early in 1759, in support of Teedyuscung’s complaints that the Proprietors had defrauded the Indians of land (above, VIII, 264–76, 379–89, 432–3) may be regarded as a preliminary skirmish in this phase of the struggle. It could settle none of the major issues but it might prove advantageous if it succeeded in drawing attention to the alleged misbehavior of the Penns in the management of their proprietorship.
The major battle took place in 1760, and was the main object of Franklin’s attention from February 16, when he first instructed his solicitor, until September 2, when the Privy Council rendered its final orders. At issue was the confirmation or disallowance of nineteen acts passed by the Assembly and approved by Governor Denny between Sept. 20, 1758, and Oct. 19, 1759. The Penns objected to eleven of these measures and sought their disallowance on the grounds that in one way or another these infringed their proprietary rights and privileges or the royal prerogatives entrusted to their exercise by the charter to their father. Franklin and Charles, as agents of the Assembly, sought to have them all confirmed as legally proper and as being necessary for the welfare of the colony and its inhabitants.
The official copies of these acts had all reached England substantially before Dec. 8, 1759, when Thomas Penn wrote Richard Peters that he had ordered Ferdinand Paris to present them to the Privy Council. There were delays, however, because “there have been no [Privy Council] Committees for common Business held yet” and Paris had been seriously ill for about a fortnight.2 The lawyer died on December 16 and Penn appointed Henry Wilmot to take over his duties, but the Proprietors took no formal action to get the acts considered for nearly three months.
One of the nineteen acts directly concerned Franklin. Approved by Denny on September 29, as one of the last in the series, it authorized Franklin as agent to receive Pennsylvania’s share of the £200,000 grant voted by Parliament to be distributed among the colonies in repayment of wartime expenses, and it directed him to deposit the funds received in the Bank of England subject to drafts by the Trustees of the General Loan Office. Unwilling to wait for the Proprietors to act on this bill, Franklin had his solicitor Francis Eyre present it at the Privy Council Office on February 16 in order to get it referred in the usual manner to the Council Committee and the Board of Trade for report.3 Further to expedite the matter, Eyre went to the Privy Council Office on the 29th, picked up the order of reference to the Board of Trade dated the 20th, and carried it to the Board’s office.4
The Proprietors’ new solicitor presented the other eighteen acts to the Privy Council on March 13 and its committee referred them to the Board of Trade the same day, together with the Penns’ petition against eleven of the acts, including the Agency Act.5 During March Eyre made “many Attendances at the Board of Trade to try to get the Agency Act considered separately,”6 but he was unsuccessful. At first, according to Penn, the Board decided that its hearings on all nineteen acts should take place during “Passion Week and Easter” (March 31 to April 6), this being “the only time the Board could hear so long a Cause.”7 But again there were delays: the Board actually put down the hearings for April 18, meanwhile asking its counsel, Sir Matthew Lamb, to report on the acts “in point of law”; then on April 17 it ordered a postponement until May 1 because of the trial for murder of Earl Ferrers, begun the day before in the House of Lords, at which the Penns’ counsel, the attorney and solicitor general, were appearing for the Crown; then two further postponements, to May 21, were granted at Thomas Penn’s request because of the death of his young son.8
At last the hearings took place; they occupied all of the Board of Trade’s time on May 21, 22, and 23, and most of it on June 3.9 Thomas and Richard Penn were present with their counsel, Charles Pratt, the attorney general, and Charles Yorke, the solicitor general.1 On the other side, the Assembly agents, Franklin and Charles, and Franklin’s son William attended with their solicitor, Francis Eyre, and their counsel, William de Grey and Richard Jackson. In some of his letters Penn expressed satisfaction that none of the London Quakers were present during the hearings, their absence presumably showing their lack of sympathy with the Assembly’s position.
Pratt opened for the Proprietors, proposing to take up the laws one by one and to begin with the £100,000 Supply Act of 1759. De Grey objected, pointing out not unreasonably that the Agency Act had come to the Board first, “referred to by a separate order,” and that the money was much needed in Pennsylvania “to carry on the public service.” But he courteously waived his objection when the attorney general said he had only that morning received notice of this proposed order of procedure and was unprepared to discuss the Agency Act then.2 Thereupon Pratt began his argument with a general attack on the Assembly’s record of encroachment on proprietary rights and the royal prerogative, its “almost rebellious declarations” against royal instructions concerning paper currency, its denial of the Proprietors’ right to instruct the governor, and its “other acts of avowed democracy.” In a passage reminiscent of Thomas Penn’s interview with Franklin in January 1758,3 Pratt spoke of “the unreasonable bounty of the first Proprietary, in acquiescing in that law, by which the assembly was made perpetual and indissoluble, [which] in great measure laid the foundation of these usurpations and encroachments,” and he added that he hoped to see the day when Parliament would repeal that concession. Pratt then reviewed the Assembly’s attempts since 1755 to tax the proprietary estates and the other encroachments on proprietary rights included in the various supply bills presented to the governors. Solicitor General Yorke followed, charging that the Supply Act of 1759 had become law by direct bribery of Governor Denny,4 pointing out “the arbitrary method of assessment and levy” provided in the measure, and describing its other objectionable features.
Franklin’s senior counsel, William de Grey, presented the Assembly’s case for the Supply Act on the 22d. He “insisted on the faith and loyalty of his constituents,” cited the testimony of British Army officers in America on the “particularly meritorious” conduct of the Assembly, declared that the laws in question had all been passed in complete conformity to the royal charter and the other documents “which together formed the law and constitution of the colony,” denied that the proprietors ought to “rely on the Crown for redress” of personal grievances since they bound their deputies financially to obey their instructions, and asserted that there was no proof Denny had been bribed since the sums voted to him “were given in the same way sums given by the Assembly to their Governors for their support were always given.” De Grey and Jackson then answered in detail the specific objections of opposing counsel to the Supply Act. The attorney general presented his rebuttal and the session was adjourned. The debate on the Supply Act, clearly the most important of the laws in the minds of all concerned, had required two full days of argument.
On May 23d Solicitor General Yorke and Richard Jackson opened the session by debating the Re-emitting Act of June 20, 1759,5 and then Pratt and de Grey took up the rest of the day arguing the Act for Recording Warrants and Surveys. No details of these discussions appear in the official record. At the adjourned hearing on June 3, after the Board of Trade had dealt briefly with minor matters concerning two other colonies, they called in the parties to the Pennsylvania dispute and “heard the arguments offered” by both sides on the remaining contested acts. None of them could have required very much time. On June 5 the Board “took into consideration the laws of Pennsylvania” referred to them “and, after some time spent therein, ordered the draught of a report to the Lords of the Committee of Council thereupon to be prepared.” The document printed below was bound to be a long one; it required considerable time for the Board’s permanent staff to put it in form. On June 24, however, it was laid before the Board and “was agreed to, transcribed and signed.”6 Thus ended the first phase of the great debate.
Penn’s letters during the hearings and before the Board released its report show that he was well pleased with the performance of his counsel and confident that it would uphold him on all, or nearly all, the points at issue. Franklin and his son William, he believed, had heard so much said by the attorney and solicitor general in criticism of the Assembly’s position, “that we all think he will not dare to attempt such an opposition to Government, when he returns.”7 On June 27 Penn informed Governor Hamilton of the recommendations of the Board, obviously pleased at their general tenor, while he explained the reasons why the Board had recommended approval of four of the eleven acts to which he had objected.8 He was greatly displeased, however, at the criticism leveled at his brother and himself at the end of the report for their failure to maintain adequately the prerogatives of the Crown entrusted to them.9
The disappearance of Franklin’s letters to Norris and others in Pennsylvania during this period make it impossible to state just what he felt when he read the Board’s report. Certainly he must have been greatly disappointed at its tone and at its recommendation of disallowance of some acts Norris had indicated as being most desirable. All was not yet lost, however, for the Privy Council’s Committee still had to deal with the report and there was at least a chance that it might be induced to reverse the Board of Trade’s recommendations as to one or more of the important acts, if not as to all. The second phase of the great debate, therefore, would come in a possible hearing before that higher authority.1
Whitehall June 24th 1760
Report to the Lords of the Committee of Council upon 19 Acts
passed in Pennsylvania in 1758 and 1759.
To the Right Honourable the Lords of the Committee
of His Majesty’s most Honourable Privy Council
for Plantation Affairs,
My Lords, Pursuant to your Lordships orders of the 20th of February and 13th of March last, We have taken into our Consideration 19 Acts passed in the Province of Pennsylvania in 1758. and 1759, and also a Petition of the Proprietaries of the said Province, complaining of Eleven of the said Acts: And in Compliance with the Prayer of that Petition, they have been heard by their Counsel, His Majesty’s Attorney and Solicitor General, who stated themselves as Appearing not only in behalf of the Proprietaries but in virtue likewise of their Office in support of the Rights and Prerogatives of the Crown. The said eleven Acts have on the other hand, been supported by the Agent of the Colony on the part of the House of Representatives, who have likewise been heard by their Counsel, Mr. De Grey and Mr. Jackson.
And, in order to lay before your Lordships our Opinion in the most concise and perspicuous manner we are able, and to avoid that perplexity which must necessarily arise from a long detail of Verbal Extracts from such a Variety of Laws, containing so many different Regulations, we shall satisfy ourselves with stating to your Lordships the General Tendency and principal Provisions of the several Laws, in the order we shall consider them, referring to the Laws themselves, to which it will always be more usefull for your Lordships to recur, if a more particular Satisfaction, and therefore a more minute and Circumstantial Knowledge of them, should, in any case, be thought necessary.
But before we take the Liberty of Stating to your Lordships our Opinion either upon the General Nature, or upon the particular Provisions of these Laws, we apprehend it will be Necessary for us to remove two Objections which have been oppos’d on the part of the Assembly, to prevent our entring at all into the Merits of those Laws which your Lordships have already, or which, under the same circumstances, you may hereafter think proper to refer to our Consideration.
The first of these Objections is derived from a Construction of that Clause in the Royal Charter by which it is provided that all Laws passed in Pensylvania shall be transmitted to England, and that if they shall be found to contain any thing contrary to the Sovereignty or Prerogative of the Crown, or to the Faith and Allegiance of the Subject, they may within six Months be declared void by His Majesty; if not, that they shall remain in full force. From the Express Mention of those purposes for which the Negative is here declared to be reserv’d, it is contended that the right of annulling the Laws of this Province is confin’d to the preservation of the Prerogative and Sovereignty of the Crown and the meer general Dependance of the Subject.
By the second it is contended, that, however discretionary the Power of exercising that Negative may be in the Crown, the Proprietaries are exclud’d from claiming any Benefit by it, and, that by Consent of their Deputy they are finally tied down, as Parties; without any Title to Complain or any Possibility of Relief.
Upon the first of these Objections, we beg Leave to state the only two Clauses in the Charter relative to the passing Laws in Pensylvania. In the first of these, it is provided, that they shall be consonant to Natural Equity, and, as far as Circumstances will admit, conformable to the laws of England:2 In the second, that they shall not be contrary to the Sovereignty or Prerogative of the Crown.3 And we apprehend, my Lords, it would be a Construction altogether unreasonable to suppose, that where there are two Reservations, of which the Crown has been equally tender and upon which the Charter is equally Explicit, that the Clause which relates to the Execution, should be confin’d only to one of them, and not extended equally to both; and we are thoroughly perswad’d, that the Crown would and ought to be to the full as jealous, on behalf of the Subject, that Laws shoud not be contrary to Reason or repugnant to the Laws of England, as it would be for the Protection of its own Sovereignty and Prerogative; and it is scarce possible to suppose, that the Crown shoud have reserv’d to itself, by the Appeal, the Judicial Power in its full Extent, which is of less Importance, and inferior Dignity, and at the same time have divested it self of the far Greater part of the legislative, which is essential to its Royalty, and which is always exercised by the King in his own Person.
And that this has been the Construction of these Clauses appears from the uniform Practice of this Board, which has frequently advis’d His Majesty to annull the Laws of this Province not only for being derogatory to His Majesty’s Prerogative, not only because they were repugnant to Equity or the Laws of England, but frequently upon a meer consideration of their general Inexpediency. And this Opinion has been so Uniform on the part of the Board that there is no Instance to the contrary, and, on the part of the Province, there has been no Complaint or Remonstrance whatsoever against the Exercise of this Power by the Crown in its utmost Latitude: On the contrary, We beg leave to Observe, that this Power has been ratified in the fullest manner by the Province itself, in an Act of its own. In virtue of the Powers of the Charter, which we have already had Occasion to mention to your Lordships, several Laws had, in the Year 1705, been declared void by order of Her Majesty in Council only and not, according to the express Words of the Charter, under the Privy Seal.4 To remove any Doubts which might arise concerning the Repeal of those Acts, and to Supply that Defect of Formality, the Assembly in Pennsylvania passed a Law Confirming the Repeal of all the Acts which before the Year 1734, had been declared void by order in council, amongst which there are Laws of almost every different Description, and but a few of which can be brought under the limited Construction now contended for by the Assembly, as affecting the Sovereignty and Prerogative of the Crown, or the Allegiance of the Subject; And, my Lords it is Material to Observe, that this Law of the Province of Pennsylvania was Passed not to remove any Doubts that had arose from the Power which the Crown had exercised, but merely to Supply the Omission of those Forms which the Crown, in its Charter had prescrib’d.5
This, we conceive, my Lords is the Right of the Crown, as it appears upon the Face of the Charter, and this we have stated to your Lordships for no other purpose than to answer those Objections which have been raised against the Power of the Crown, and which have been drawn from the Charter itself, not in anywise Admitting that the Right of the Crown has its Origin or derives any part of its Validity from the Charter, or from any Confirmation of it by the Legislature of Pensylvania; on the contrary we are fully of Opinion, that every British Subject, whilst he remains in any Country under the Allegiance of the Crown, has an indisputable Right to avail Himself of it’s just Prerogatives for the Redress of any Grievances which He may suffer; And from this Benifit we apprehend no one Subject can be shut out by any Favour or Partiality to another, or by any Grant or Charter whatsoever; and that therefore for the exercise of that Protection in it’s most essential Part, there is a Reservation of the King’s final Negative necessaryly implied, tho’ it should not be Actually Expressed, in every Charter by which the King gives Permission to his Subjects to make Laws in America: and it is in consequence alone of this Right of Protection in the Subject and of Superintendence, inherent in the Supreme Power and inseparable from it, that His Majesty has frequently abrogated the Laws which have been made in Charter Governments, and particularly in the Colony of Connecticut, where the Power of the Crown is much more limited, where there is no reservation in the Charter of the Royal Negative, nor any Regulation for transmitting their Laws to England, both of which are particularly provided for in the Charter of Pensylvania.6
In every Light therefore, My Lords, which we consider it, from the Reason of the thing; from the express words of the Charter; from that Construction of the Regulations which reason requires; from the uninterrupted Course of the Precedents, from the Assemblies Admission of that Right, and from that inherent Part of Sovereignty by which the Crown owes an equal Protection to all its Subjects, we are clearly of Opinion, that His Majesty has an undoubted Right to examine into the Merits of this and every other provincial Law, to give or to withhold his Negative upon any good reasons which may be Suggested to him by the Wisdom of his Privy Council, or by his own Royal Prudence and Discretion.
We come now to lay before your Lordships, our Opinion upon the second Head of general Objections, that the Proprietaries, having by their Deputy consented to these Laws, are not Entitled to sollicit the Interposition of the Crown, in their behalf. If Your Lordships should approve what we have already stated, as to the Power of the Crown, by the General Reservation of the Charter, we apprehend you will Necessarily be of Opinion, that the Crown should not preclude itself from any Information by whomsoever it may be furnish’d, and by which it may be better qualify’d to direct the exercise of the Power it has reserved; and that the Crown will hear the Proprietaries for that purpose, in common with any other Person in the Province, all of whom must be consider’d as being, in common with them, Parties to every Law, having by the Nature of the Constitution, given their Assent to it, either actually by themselves, or virtually by their representatives. We apprehend therefore, My Lords, that the Crown will not only permit, but will encourage, the throwing all possible Light upon every Provincial Law that may be passed; that it will dissregard entirely the Person who complains, and attend only to the Justice of the Act, and the Merits of the Complaint. Whatever therefore may be the Situation of the Proprietaries, the Crown will still execise its Negative in such Manner as it thinks proper, and if, by the Strict Letter of the Law, the Proprietaries should be tied down, we apprehend it would be extreamly injurious, that they should in reason and Equity be considered as a Party to those Acts. For, my Lords, in the Course of this hearing it has been made Sufficiently apparent, by the Manner in which the Assembly detained the Salary of the Deputy Governor, till he had given his Assent to those Laws, and by the manner in which they paid it, when He passed them, (A separate sum being received by him upon his Consent to separate Laws) that it was meant by the Assembly and understood by the Governor as a Consideration for his Passing these exceptionable Acts, in Contradiction to his Instructions. And, if it was possible for us to entertain any doubt upon this Head, the Assembly themselves would not permit us: A vote of their House has been produced in which they state, that the Governor had Acted not only against the Proprietary Instructions but against the Remonstrances of the Council appointed to advise him, that they conclude therefore, He will incur the Forfeiture of his Bond, against the Penalties of which by their Vote, they undertake to Indemnify him.7 And tho’ some Instances have been brought in which the Salary of Governors has been permitted to be in Arrear, yet no Instance has been produc’d, that is in any manner parallel to the present. But what peculiarly distinguishes this Case from all others is the Vote of Indemnity, and it would be particularly hard to suffer the Assembly, by taking Advantage of their own wrong, at once by their Vote of Indemnification to declare, that the Assent to these Laws was not the Act of the Proprietaries, and then to Contend that they should be bound by it: For we apprehend, My Lords, that the Position laid down by this Assembly in their Vote that the Deputy Governor is not in any Case bound by the Instruction of his Principal, but is vested, by the Nature of his Office, with discretionary Powers to act as he thinks proper, is not only against the Essential Nature of all deputed Power, which is always qualified by such Limitations as the Principal imposes on it, but, if taken concurrently with their Proceedings in regard to the Salary, would establish an Uniform System of Collusion between the Governor and the Assembly.
We apprehend likewise it would be productive of the greatest Injustice, not only to the Proprietaries but to the Province, if the Assembly should be encouraged in so unwarrantable a Practice, as to apply the Money of the People, first to corrupt the Deputy-Governor, and then to take away the means by which his principals may bind him to his Duty, or punish him for the Violation of it; and that it must also Occasion the most serious Mischief in Government, if, in this Colony, Consisting only of two Branches of Legislature, the one shall be permitted by a Publick Act to corrupt the party entrusted with the Prerogatives of the other: and we are perswaded, that your Lordships will approve our recommending it to His Majesty to discountenance, by every possible method, so Collusive and iniquitous a Practice.
For these Reasons, my Lords, we are clearly of Opinion, upon the second Head of General Objections, that the Crown will be open to every Information from every Person, That the Proprietaries are in this particular Case not so concluded, by the Act of their Deputy, as to have no Title to Complain; That on the contrary, the Act of their Deputy has given them the Strongest reasons to Complain, and the justest Title to redress; That, as wrong’d Individuals, they have a Right to resort to the Crown for Relief, and, That, as Persons intrusted with some of its most Valuable Prerogatives, they come before His Majesty on the fairest Grounds imaginable: For, my Lords, it has uniformly been the Practice of this Board to preserve to the utmost of their Power the just Prerogatives of the Crown, wherever they may be lodg’d, and even tho’ the Trustees should be willing to part with them, much more when, in Pursuance of their Duty, they Come laudably to prevent any Delapidation of them in their Hands.
We have dwelt, My Lords, the longer on these preliminary Points, because it is by the Determination of them, that our Right to a more particular Discussion of these Laws must stand or fall, and because it is upon the latter of these Objections, rather than upon the merits of the particular Regulations, that the Counsel for the Assembly have Supported the whole Body of the Acts Objected to by the Proprietaries; but, above all, because they turn on matters of the Last Importance to his Majesty’s Prerogative, and to the Peace, Order and good Government not only of this but of several others of his Majesty’s Plantations in America.
These two Points being establish’d, the Right of the Proprietaries to Complain and the Right of the Crown to redress, we come next, my Lords, to Consider how far the several Laws refer’d to us by Your Lordships may deserve his Majesty’s Disapprobation or Allowance.
And the first Act upon which we shall take the Liberty of stating our Opinion to Your Lordships is the Act of 1759. for raising one Hundred Thousand Pounds, departing from the order of Your Lordships reference, and pursuing that method in which these several Laws were Objected to by the Counsel for the Proprietaries and Supported in Behalf of the Assembly.
This Act is entituled
An Act for granting to His Majesty the sum of one Hundred Thousand Pounds and for striking the same in Bills of Credit, in the manner therein directed, and for providing a Fund for Sinking the said Bills of Credit by a Tax on all Estates, real and personal, and Taxables within this Province.8
And the Object of it is, granting a Supply to his Majesty suitable to the Circumstances of the Province and the Exigencies of Government, to be raised by a Tax on all real and personal Property within the Province.
It will be necessary for us to Observe to Your Lordships that before the Year 1755, no Attempt had been made to include the Proprietary Estate in any general Land Tax Bill; the Proprietaries contended Against this Innovation; and, by contributing towards the general Supply by a free Gift of five Thousand Pounds, their Estates were, upon that consideration, not included either in the Land Tax Bill of 1755. or in the Tax Bills of 1757. and 1758. which were considered as Suppliments to it.9 This Expedient however procur’d but a temporary Suspention of the Dispute, which was reviv’d again and Continued for a long time to Disturb the Tranquility of the Province, and to embarrass the Publick Proceedings. To quiet these Dissensions, the Proprietaries at last consented, that their Estates should be Tax’d, interposing only these very reasonable Conditions, that the Impositions should be laid on Objects properly Taxable, that Equality should be observed in the Quantity and Justice in the mode of Taxation; This gave rise to the Act of 1759, by Your Lordships Reference now under our Consideration, by which the Proprietary Estates were tax’d not only to the Supply then given, but retrospectively towards all the Supplies since 1755 inclusive, allowing them Credit for the sum of five Thousand Pounds received, if it should happen to fall short of their Proportion of the Tax. This Regulation which might appear otherwise unreasonable, was founded on a proposition of the Proprietaries in a Letter to Mr. Franklyin the Agent of the Assembly.1
How far this Act is Consistent with the Royal Prerogative, agreeable to natural Equity and the Laws of England, we shall now take the Liberty of stating to Your Lordships.
In order to make this Matter as clear as its Intricacy will admit, we beg leave to state the Nature and Quality’s of the Proprietary Estates in that Country. They Consist, first, of Quit Rents, given on Grants of the Property and Inheritance of Land; secondly, of Rents reserv’d upon Leases for Lives or Years; thirdly, of the waste Lands which are held by them under the Charter and in Virtue of their general proprietary Right; Fourthly, of Located Lands, which are Lands reserv’d by the Proprietaries for their own Use, out of those Tracts which are granted to Private Persons, and which, tho’ appropriated as their Demeane, are not cultivated but kept vacant, in order that they may be Occupied, Let or Sold, as they shall judge most Convenient. The two first of these Divisions of their Property, the Quit Rents and reserv’d Rents, the Proprietaries freely Consent should be Taxed; the only dispute therefore is with regard to the third species of Property, the waste Lands, which are not Located, And the Fourth which are the unimprov’d and unsettled demesne Lands, which are Located; and each of these it is Contended (as we apprehend with reason) is a species of Property which is by no means a proper Object of Taxation. For by this means a Tax is annually impos’d upon what yields no annual Produce, or, properly speaking, no produce at all, contrary to reason and contrary to those Rules which in England have been on these Occasions constantly Observ’d. And, my Lords, we Conceive that the Tax imposed by this Act upon Located Lands, tho’ unimproved, is not only injurious to the Proprietaries, but to every Individual in the Province who is possess’d of Lands under the same Circumstances. What Adds to the Impropriety of this Tax is, that the annual Imposition on those Lands is limited only from five to fifteen Pounds per Hundred Acres, by which means a great Latitude is left open to Partiality and Injustice in the Assessors.
But with regard to the Proprietaries, there is a peculiar Hardship in that Charge imposed by the first taxing Clause in this Bill on Lands at large, tho they are neither improved or located;2 a Discription which can alone be Applied to the Lands of the Proprietaries. These we apprehend to be rather a more improper Object of Taxation than the former; these are likewise deprived of the Benefit even of those Restrictions used in the former tax as those Restrictions are. The mode and Quantum of the Tax, as far as it relates to this Object, not being limited, as in the other Case, from five Pounds to fifteen Pounds, but Absolutely left open to the Discretion of the Assessors.
It is not, my Lords, in the Object of the Tax alone, that the Proprietaries are Distinguished from every Individual in the Province, but likewise in the Method of Taxation. By this Act, in Cases of Private Property, every Species of Estate is to Support its own proper Burthen, According to its particular Nature and Circumstance; on Nonpayment of the Tax on improved Lands, the Remedy which the Act has Appointed is Distress; For unimproved Lands, because there can be no Remedy by Distress, Recourse is had to sale; and these Remedies are never Displaced, nor is one kind of Land in any Case made Answerable for the Defaults on the other. But this rational and distinguishing Order is Quitted when applied to the Proprietaries; For in their Case there is one only Remedy and that is an Absolute sale of their Lands, whether improved or unimproved, and that for a Default of Payment of the Tax whether on their Quit Rents, their Reserved Rents, their Located demisne, or their Lands at Large. In the ordinary Course likewise of Levying the Tax upon Individuals, they first resort to the Landlord, and, on his Default, to the Tenant, before they proceed ev’n to Distress; In the Case of the Proprietaries, they go only to the Receiver General and on his Refusal or Neglect take no Notice of the Tenant, but have recourse imediately to Sale; giving against the Proprietaries in the first Instance, that Remedy, upon a default of Payment of the Tax for any of their lands or their Rents, which they refuse against the Individual, except in the Last resort, and then for his unimproved Lands alone. And this Regulation, my Lords, is not only partial in its self, but contrary to the Laws of England, which in no Case subject Lands to sale for non Payment of Taxes.
The Proprietaries complain, and, we apprehend, with reason, not only as to the Injustice of the Tax in its Object, as to the Partiality of the Method by which it is inforced, but likewise as to the Inequality which is Observed in the Choice of Assessors for collecting it.
The Inhabitants of this Province, whenever they are tax’d in common with the Proprietaries, may be Considered as their Adversaries, as the former will be exonerated in proportion as the latter are burthened; it would have been but Justice therefore, to have provided indifferently for each. But the Proprietaries, by having no Vote in the Choice of Assessors, nor even a Negative on those who are appointed to dispose of their Property, are not in this respect upon a Footing with the meanest Freeholder in the Province. If they appeal from the Partiality of the Assessors, who are chosen by the People, it is to Commissioners who are elected in the same manner, and are liable therefore to the same Exception.
We ought not, my Lords, to pass over the plea which the Assembly makes in Favour of this Regulation, that the manner of Levying the Tax and of judging an Appeal, as settled by this Law, is the same with that which has been so long in Use by the Act for Levying County Rates, and that no Complaints have been made of any Inconvenience or Oppression. But this Method which was very reasonable when the People only were taxed, becomes altogether unfit, when a new Object is let in, and the Proprietaries are to be Charged: and therefore no Argument can be drawn from the Equality of the former Method, the present Circumstances being, as must be Obvious to Your Lordships, Extreamly different: Added, my Lords to the Appointment of Assessors, and of Commissioners of Appeal, in neither of which the Proprietaries have any share, the Assembly has taken to itself Solely and independent of the Governor a Right of revising and controlling the whole Assessment, which we Apprehend as far as this Object extends, to be no less than Assuming to themselves at once a great Part of the Executive and in effect the whole of the Legislative Power; as, by controlling the Assessment, they may either raise or lower it as they think proper, which is in every respect equivalent to a new Tax. And this extraordinary Power is reserved in words so general and ambiguous, that it is impossible to set any Limits to their Pretentions, especially as they have brought the Interpretation of this Act before no other Tribunal but their own Assembly: In Proportion as they have Departed from Justice; departing from the Constitution and the Laws of England, where the House of Commons have never assumed a power in any manner similar to this. And, my Lords, the Assembly, not content with Levying the money solely by popular Assessors, trying the Appeal before a popular Tribunal, revising and Controlling the whole Taxation by a popular Representative, have Vested in themselves alone, the Application of the money which is thus directed to be raised; usurping by this means one of the most inviolable Prerogatives of the executive Power, not countenanced by any Example of the British Representative, who always consider the Application of the Publick Money subject to Account as one of the most undisputed Powers of the Crown. It is true that the Assembly have in Part of this Act complimented the Governor with a Share in the Application of the Money, but, by the two Clauses immediately subsequent, they have taken Care to render the Concession ineffectual. For, by these, a Majority of the Commissioners are (independent of the Governor) impow’red to Draw upon the Loan Office; not only for the Purposes of this Act, but for the Discharge of Services performed under the Authority of a former Law, and which, through the Deficiency of the Funds set Apart for the Payment of them, had not yet been provided for.3
The next exceptional provision, my Lords, is that by which the Assembly have reserved to themselves the sole and exclusive Nomination of the Officers created by this Act, a Prerogative not only belonging, but absolutely essential to the Executive Power, and on which the Exercise of all the rest Depends: And it will be needless to point out to Your Lordships that in this, as in all other Instances of the same kind, they have far exceeded the largest Claims of the British House of Commons. And this Encroachment, my Lords, they constantly exercise, and in almost every Act, by which a new Officer is appointed, the sole Nomination of the Officer, by an express Provision, is particularly reserved to the Assembly.
In Addition, my Lords, to all these Objections, there is another which we apprehend to be extrem’ly material, arising from that Part of the Act by which it is contended that the Proprietaries should be bound to receive their Rents in Paper Currency; notwithstanding the express Reservation of them, by the Words of their Contracts in Sterling. But, as we shall have Ocasion in the course of our report upon the Subsequent Laws, to state this matter more fully, we shall not now enter into the Discussion of it at large, but satisfy ourselves here with barely pointing it out to your Lordships Observation.
We must not here omit taking notice of one Argument which has been offerd by the Assembly and very strongly insisted on, in order to obtain His Majesty’s Approbation of this Act, and that, my Lords, is drawn, not from the Merits of the Act itself, but from the Inconveniencies which they state, must unavoidably attend the Repeal of it. “That the Money being already emitted under the Publick Faith and circulating every where, throughout the Province, if this Act should be annull’d, must of Necessity lose its Credit, and that many therefore would become Sufferers, who were by no means Instrumental in Framing those inequitable Regulations for which the Law was depriv’d of its Validity.” We are sensible, My Lords, from the manner in which this Act is framed, that some Inconveniences must follow either the Confirmation or the Disallowance of it; and we have it in our Power; only to Consider which will be Productive of the fewest Mischiefs. This, my Lords, is what we have weighed as deliberately as we are able; and we are clearly of Opinion, that from the Comparative Lightness of the Evil: and from the Comparative Easiness of the Remedy (as well as for the sake of the Precedent) that the Repeal of this Law is much the least exceptionable Part. If the Act should be confirm’d, a Capital Injustice would be done to the Proprietaries, several Infractions would be made upon the Constitution and several encroachments on the Prerogative; and these, my Lords, during the Subsistance of the Act, could Not Possibly be remedied, and probably would not upon the Expiration of it. For there is not one Provision of the Law which has not been supported by the Assembly on Permanent Principles from which they will not, and from which, if their Opinions were well grounded, they ought not to Depart. The Method of Taxing the Proprietaries is contended for as Consistant with Justice; and the Encroachments on the Prerogative as Agreeable to the Constitution.
If, my Lords, on the other Hand the Act should be Repeal’d, the Bills that have been isued may Possibly be deprived of their Currency: the Odium however of this Inconvenience, we apprehend, must fall upon those who reduced the Crown to this Necessity, not upon the Crown itself; or upon those whose Province it is to Advise it. And this very Inconvenience, it will be in the Power of the Assembly who gave rise to it, instantly to redress, by the Passing an Act to reestablish the Credit of those Bills, simple and unadulterated by those Clauses which gave Ocasion to its being repealed. And we beg leave to Observe, that not one of those Provisions, which we have stated as so exceptionable, are at all essential to the great and Capital Object of the Act, for, my Lords the Sum of one Hundred Thousand Pounds will be raised not only more equitably, but full as effectually, if the Object of the Tax be proper, as if it was an improper one, if the Method of inforcing it was equal, instead of being partial; and if the Proprietaries had a Voice in the Nomination of Assessors, in the Appointment of the Officers, and in the Dispossition of the Money, as if they had not.
In other Governments, my Lords, where Laws have been passed which it has been thought for some reasons not advisable to confirm, and which at the same time, for others, judged not expedient to Repeal, the Crown has for a time suspended it’s Decision, still having in itself the Power either of Confirmation or Disallowance at any other more Convenient Opportunity. From this Expedient, in the present Case, even could we recommend it, his Majesty is precluded by the Limitation of the Charter, by the terms of which unless, within 6 Months (part of which is now elapsed,) the Laws are declared Void, they of Course become Valid, and the interposition of the Crown, at any Subsequent Period, will be Totally Ineffectual.4
To conclude, my Lords, on the most Attentive Consideration of this bill, from the manifest Injustice of some Parts; from the studied Ambiguity of others; from the Impropriety of some of the Objects of the Tax; from the Injustice which is done to the Proprietaries in their Property as Individuals, and in their Prerogatives, as Governors; from the manner in which the Tax is laid; from the remedies which are prescribed to recover it; from the exclusive Choice of Assessors, Commissioners and Revisers, by which the Tax is Subjected to three Popular Bodies; by the Usurpations and Encroachments in the Choice of Officers and the Application of Money, and by the Compulsary Tender of their Paper Currency notwithstanding the express Reservation in the Contracts of the Proprietaries, in all of which particulars the Act manifestly offends either against Natural Justice and the Laws of England or the Royal Prerogative, we are fully of Opinion that this Act is one of the most proper Objects for the exercise of his Majesty’s Power of Repeal, which has been at any time refered to our Consideration, and We Humbly recommend it to be repealed accordingly.
An Act for re-emitting the Bills of Credit of this Province heretofore re-emitted on Loan, and for striking the further Sum of Thirty-Six Thousand Six Hundred and Fiffty Pounds to enable the Trustees to lend Fifty Thousand Pounds to Colonel John Hunter, Agent for the Contractors with the Right Honourable the Lords Commissioners of His Majesty’s Treasury, for His Majesty’s Service.5
A Supplement to the Act, entitled An Act for re-emitting the Bills of Credit of this Province heretofore re-emitted on Loan, and for striking the further Sum of Thirty-Six Thousand Six Hundred and Fifty Pounds to enable the Trustees to lend Fifty Thousand Pounds to Colonel John Hunter Agent for the Contractors with the Right Honourable the Lords Commissioners of His Majesty’s Treasury, for His Majesty’s Service.6
Before we take the Liberty of reporting to Your Lordships the Opinion we have formed upon the Subject of the first of these Bills, we beg leave to premise, that the Paper Currency (which is it’s Principal Object) has been issued in this Colony, and in the other Provinces of North America, for two Purposes.
The first, my Lords, is upon Loan, to Supply the Deficiency of Specie and to Serve as a Medium of Circulation within the Province; the Ballance of Trade being so much against them, that Gold or Silver is very difficult to be procured.
The second, tho’ it has for its immediate Object only to provide for the Exigencies of Government, becomes in its Operation Subservient to the former Purpose, and Contributes likewise to encrease the Circulation of the Province.
We must observe further to Your Lordships that, when Paper Currency has been struck for the former of these Purposes, to be issued out upon Loan, it has been usual to advance it on proper Security, and at a Legal Interest, the Borrower Stypulating that it should be repaid at a certain Period, and the Legislature providing by their Act that the Bills so issued should, upon the repayment of the Money, be destroyed; But it has frequently happened that, when the Circulation of the Colony seemed in any manner to require it, the Legislature has directed that the Bills, which had been payed in and which were intended to be destroyed, should be again emitted, under the same Security and at the same Interest. By Paper Currency, my Lords, thus issued upon Loans, several Salutary Purposes have at once been answered: The Defect of Circulation from the want of Specie, has been Supplied; by being advanced at a very low Interest, the Cultivation of the Province has been Promoted, and that Interest has been applied to Support the Current Services of Government. Under the Restrictions we have stated to Your Lordships, the Paper Currency of this Province, by various Emissions and reemissions at length amounted to Eighty Thousand Pounds; but, as the final Period of its legal Circulation is distant but a very few Years, and as, by the Laws now Subsisting, the whole would expire in seventeen Hundred and Sixty two, The Assembly propose by this Act to revive the Circulation of these Bills, to re-emit them as they shall be paid in, and to continue their Credit to 1778,7 by an Additional Term of Sixteen Years. We are far, my Lords, from being of Opinion that the Sum of Eighty thousand Pounds, as stated by the Assembly, may not be necessary for the Circulation of the Colony, considering the great Increase of People, and of Trade more than proportioned to that Increase, in this very thriving and flourishing Province. But we apprehend that the Prolongation of this Paper Currency, for sixteen Years, from 1762, is at present not only absolutely unnecessary but extremely improper. For, first, My Lords, as to it’s being unnecessary, we must Observe, that almost the whole sum of eighty Thousand Pounds is still out-Standing in the Province and will continue in Circulation, by the Laws now Subsisting, till the year 1762, no more than sixteen Hundred and Fifty Pounds having as yet been actually paid in, tho’ Twenty seven Thousand Pounds is the sum, which, by the Terms of the several Laws, ought, before this time, to have been discharged. Secondly, my Lords, we apprehend that a want of Circulation cannot possibly be felt in the Province, because great Part of the Bills which have been struck since the Commencement of the War, to Supply the Exigences of Government, and which, as we have Observed to your Lordships, serve the same Purposes of Circulation with the former, are, together with almost the whole of the eighty Thousand Pounds still current in the Province; insomuch, My Lords, that of all the Paper Currency which has been issued in the Years 1755, 57. 58, and 59, the former is alone destroyed. If therefore it is confess’d that the sum of eighty Thousand Pounds is sufficient for the Circulation of the Province, no defect, we apprehend, can be upon that Head reasonably complained of, because from the several Paper Bills which have been passed and which have not been yet destroyed, a much larger sum than that which is stated to be Necessary is now, and will continue to be for some time, out-Standing in the Colony.
As the Emission of Paper Currency in general has never been encouraged, tho’ it has in some cases been tolerated by the Crown, the Consideration of this Reemission ought not certainly to have been resumed till as late as possible. But as this Bill was made much earlier than was Necessary, so it was Continued much longer than is Proper.
By the Act for regulating Paper Currency in the New England Governments the Term for the Circulation of Bills issued on Emergencies is extended to five Years only; to those issued for Circulation it is limited to three.8 And tho’, My Lords, this Province is exempted entirely from that Law, yet as that Exemption arose solely from a Perswasion that the Province had, without a Law, come of itself very near the Regulations which the Law would have prescribed. We apprehend to preserve the reasons of this Exemption in all their Validity, it is Necessary still to hold this Province as near as may be, to the Standard of that Act.
Further, My Lords, we must Observe that this Act is liable to that Objection which we only touched upon to Your Lordships in our Report on the Land Tax Act of 1759, and which we shall now take the Liberty of Opening more at Large. And here it will be Necessary to Observe, that the Proprietaries in their Grants had Originally reserved the Payment of their Quit Rents in Stirling Money only, and this Form of Reservation continued till 1732. But since that Period, their Rents have been expressly reserved not only (as before) in Stirling Money, but with the Addition of this new Clause “or its Value in Currency, regard being had to the rate of Exchange between Philadelphia and London.” In Consequence of several Acts by which Paper Currency was issued in the Province, and by which it was likewise made a legal Tender in the Payment of all Rents &c. a Dispute arose between the Proprietaries and their Tenants, The Tenants insisting on the Tender of Paper Currency under the Authority of the Acts of the Province, and the Proprietaries refusing to receive it, as contrary to the Express reservation of their Grants. To quiet this Dispute, the Assembly agreed to Pay to the Proprietaries a Sum of Twelve Hundred Pounds and a Hundred and Thirty Pounds per Annum till the Year 1749, as a Compensation for the Difference between the Stirling Money which was reserved by the Proprietaries, and the Paper Currency which was tendered by the Tenant; enacting at the same time, that all Quit rents since 1732, should, for the future, be paid according to the Terms of their Covenants: And in this, tho’ not amounting to half of the real Difference, the Proprietaries Acquiesced.9 And tho’, My Lords, the Assembly, by this Compensation which they made to the Proprietaries, seem to allow, that they had a Right by such Reservation and a Loss by the Breach of it, yet, notwithstanding their former Sense of this Affair, tho it is not denied that Paper Currency is greatly below Stirling Money in its Value, even at Present, when the large Remittances to North America for the Payment of the Troops and other Services of the War have rendered the Exchange less in their Disfavour than it Otherwise would be; tho’ the Tenor of the Grants either before or since 1732 are not questioned, the Paper Currency is by this Act made a Valid Tender for the Proprietaries Rents as well as for all Payments whatsoever, not excepting even the Contracts that have been made since 1732, as they had before done in the 12th. of the King, nor making in this Case, as they had done in the former, any Compensation, however unequal, for the Loss. And we beg leave upon this Occasion to remind Your Lordships that his Majesty did, in the Course of the last Year, disapprove a Law of North Carolina, by which His Majesty’s Quit Rents, being comprized in the general Terms of all Debts and Demands whatsoever, were made payable in Paper Currency; And at the same time His Majesty by Special Instruction directed his Governor to take Care, that in all future Acts for issuing Paper Currency, a Clause be inserted declaring that the Paper Bills of Credit already issued, or thereby to be issued, shall not be a legal Tender in Payment of the said Quit Rents, Nor of any Debt whatsoever that may become due to the Crown.1
We have likewise, my Lords, another very material Objection to this Bill as it is now constituted, arising from the Re-emission being connected with the Loan to Colonel Hunter, with which it has not the least necessary relation. By this Method of blending together in the same Bill things which are in their own Nature totally Separate, the Crown is reduced to the Alternative either of Passing what it disaproves, or of rejecting what may be Necessary, for the Publick Service: and this Manner of framing Laws has been always so exceptionable to his Majesty that, in Governments more immediately under the Controul of the Crown, it is a standing Instruction to the Governor, not to give his Assent, whenever it was proposed that matters of a different Nature Should be regulated in the same Law.2
But, My Lords, in order to shew, that the Clause relative to the re-imission was inserted only as a Tack to the Loan, it has been alleged by the Counsel for the Proprietaries, that the very same Regulation, being offer’d in a separate Bill, was rejected by the Governor, but obtained his Consent, when connected with the Loan to Colonel Hunter.3
None of those Inconveniences which may possibly attend the repeal of the Land Tax Act are in this Case to be apprehended. For the Money having been advanced by Colonel Hunter to the Contractors with his Majesty’s Treasury, has been already repaid, and will probably be received in Pensylvania before the repeal of this Act can Possibly arrive there: And thus, My Lords, Publick Justice will be done without Injury to any Individual.
We must, in Addition to these Objections, also Mention to Your Lordships, that the Assembly have in this Instance likewise, taken to themselves the sole Disposition of the Interest arising from the eighty Thousand Pounds which at four Thousand Pounds per annum for sixteen Years, would amount to Sixty four Thousand Pounds. But we shall not repeat what we have Already taken the Liberty of Offering to Your Lordships upon the Application of all Money being Assumed by the Assembly in the former Act, especially as we imagine we have already given Sufficient reasons for the Support of our Advice to His Majesty, that this Act may be repealed.
The Act, my Lords, intitled A suplement to this Act is liable to the same Objections with the Act itself. If Your Lordships should approve what we have stated, upon the Act, this Suplement will meet of Course with His Majesty’s Disallowance.
There is however one Additional Objection to this Suplemental Act, that the Nomination of Officers, which by the Act itself was to be exercised by the Assembly with the Concurrence of the Governor, is here to be exercised by the Assembly only.
An Act for recording of Warrants and Surveys and for rendering the real Estates and Property within this Province more secure.4
In order to comprehend the Object and to judge of the Equity of this Law, it will be necessary for Us to state to Your Lordships the Method which is now pursued in granting Lands in Pensylvania: Upon Application being made to the Proprietaries a Warrant is directed to the Surveyor General to Survey the Lands, that have been appli’d for. That Survey, when made, is returned into the Secretaries Office, and upon the entire Payment of the Purchase Money, a Patent is made out. By this Bill it is proposed that a new Office shall be erected for the registration of those Warrants and Surveys; there being no Office in the Province which by Law is bound to record them, as they are at present kept only in the Office of the Proprietaries, at their Discretion, under the Direction of an Officer of their Appointment, receiving a Salary from their Bounty, and liable to be removed at their Displeasure.
We cannot possibly, My Lords, Object to any Regulations which seem to carry with them a probable Tendency of establishing the Evidences of Property, and of Preventing Litigation in the Province. But we are of Opinion, that the Scope and Drift of this Act, which, tho’ it is expressed somewhat ambiguously in a Clause of the Act itself, is yet very clearly explaind by a Message of the Assembly, is extremely exceptionable. By the Act it is implied only, but not explicitly avowed, that a Warrant and Survey are in Law a Compleat Title to an Estate of Inheritance in Lands; for it declares, that Estates are claimed and held under Warrants and Surveys and other Writings; specifying in clear and express Words the Warrants and Surveys, as if they were the only or most material Part of the Title, and Passing by the Patent or involving it only in the general Term of other Writings, as a matter of little or no importance, tho we apprehend it is in reality the only Legal Conveyance of an Estate. But, My Lords, as we have already Observed, the Ambiguity of their Act is taken away by the Clearness of their Message, for the Assembly being pressed on the Part of the Governor to explain themselves on this Point, they expressly Affirm that the true Right of Property is vested from the Moment that the Warrant is delivered.5
And this Regulation of the Bill we apprehend, My Lords, to be highly exceptionable, as it establishes a Title to an Estate, different from that which prevails by the Common Law; we apprehend it is likewise extremely unequitable to the Proprietaries. For, from the Terms upon which Lands are usually granted in Pensylvania, it seldom happens, that, upon the issuing a Warrant and Survey, the whole of the Purchase Money is paid down: Part only, and that commonly a very small Part, is advanced at first; and the Payment of the Remainder, according to the Circumstances of the Case, is to be compleated at some other, and often at a very distant, Period: And this, my Lords, by a Policy very rational in itself, and highly conducive to the Settlement of the Province; for by this means the Purchaser, instead of being totally exhausted by the Purchase, has Money left to be expended in the Cultivation of his Land.
As the Laws now Stand, independent of this Bill, the Proprietaries and the Grantee have a Mutual, and, as near as the Nature of the thing will admit, an equal Remedy against each other. But if the Bill proposed should pass into a Law, and the meer Warrant and Survey, which now only gave a Conditional Right to an Estate, upon the Performance of the Terms of the Contract, should confer a Right, Absolutely and of course, the Proprietaries would be deprived of their Proper and only certain Remedy Against the Grantee, The regaining Possession of their Land by an Ejectment; for the Personal Remedy against the Settler, might in any Case be rendred ineffectuall by the Settler himself, who having, by the Principles of this Act, a Compleat Title to his Estate by the meer Warrant and Survey, might, in Virtue of that Title convey and alien it to another, and the Person claiming under that Conveyance would be confirmed in the Possession of the Estate, and the Proprietaries Personal Remedy must cease of course, upon the Absence of the Person to whom the Grant was originally made.
Nor, my Lords, as we conceive would the Establishment of such a Title, be more injurious to the Proprietaries than to the real Interest of the Province itself. For, if the Proprietaries should be discouraged from making out any Warrants till the whole of the Purchase Money is discharged, the Method of Paying by installments, which has hitherto been followed, not only with so much Benefit to the Proprietaries, but with so much Advantage to Individuals, and to the General Advancement and Cultivation of the Province would be entirely taken away.
There are likewise other Objections to which the said Act in our Opinion is liable, which it will be Necessary for us only just to Mention, and for which together with those already stated to Your Lordships, we beg Leave to offer it as our Opinion that this Bill should not, by receiving his Majesty’s Approbation, be permitted to pass into a Law.
We are of Opinion, my Lords, that the time in which the Surveyor is limitted to execute every Warrant and Survey that may be sent him, being only forty Days, is unreasonably short; That his Compliance with this Provision in the Act may in some Cases be impossible, and in others extreamly difficult, and we see no Inconvenience that would possibly have arisen from an Extension of that Term.
We conceive that the Directions under which, by this Act, the Surveyor is to execute his Office, are equally injurious to the Proprietaries Rights and to the common good of the Province. With respect to the Proprietary, by the Surveyors being Obliged to survey to the Claimant whatsoever Spots or Parcels of Lands He shall think most eligible for his Purpose, the Proprietaries are deprived of that Preoption which they always had and to which they are undoubtedly intitled, in the Reservation of such Parcels of Lands as they may prefer to be set apart for their own Demesne. With regard to the Province, as the Lands of Pensylvania are various in their Nature and Advantages, with respect to Wood, Water and Fertility of Soil, by inabling the first Grantee to select out those Particular Parts which are in every Spot the most Advantageous for a Settler, the Refuse of the Land will be left only for those who succeed him, to the great discouragement of new Purchasers and to the manifest Disadvantage of Settlement.
We apprehend likewise, that the Penalty of five hundred Pounds to be levied upon the Officer on his neglect to register any Paper or Minute of Property whatsoever, by which any Person may be affected, is much too heavy; and that where the Duty is so very extensive, and the Directions of the Act are so very minute, the Penalty should not be so extremely considerable.
But tho’, My Lords we cannot possibly approve, for the reasons we have stated, the Particular Regulations that are Proposed by the Assembly in this Act, we are far from being of Opinion that no Regulation is Necessary; on the Contrary, we think it highly expedient, that the Office constituted by the Proprietaries and now solely under their Direction, should be converted into a Publick Office, not only for the Registration of Patents, but of Warrants and Surveys and of any other transactions which may be thought advisable, and which relate to the Purchase of Lands: That while the Proprietaries may not be Invaded in their Rights, every Individual in the Province may be satisfied as to the Fidelity of the Record, and the Integrity of the Officer: That Security should be given for the good Behaviour of the Officer, and that he should be liable to Penalties for Mal-administration. Such Regulations, we are of Opinion, will answer the Purposes of removing effectually all the real Inconveniences that are complained of, and all the Jealousies of the Assembly, as far as they are well grounded, without Oppression or Injustice to the Proprietaries. And we are, my Lords, the more inclined to Approve of the Plan we have suggested to your Lordships; Because, in the Government of Virginia, where the Patents of Grantees were registered in an Office under the immediate Controul of the Crown, similar to that which is now Subsisting in Pensylvania under the Authority of the Proprietaries, His Majesty did, of his own Motion, recommend it to the Assembly of that Province, to Pass a Law, by which that Office, which had till then been more immediately under the Direction of the Crown, should be converted into a Publick Office, under the several Circumstances which we have already pointed out to Your Lordships, his Majesty however reserving to Himself, in Maintenance of his just Prerogative the exclusive Nomination of the Officer.
An Act for the more Effectual Suppressing and Preventing Lotteries and plays.6
This Act, My Lords, has two Objects in it’s View, as the Title of the Bill imports, the one for the more effectual Suppression of Lotteries, the other for Prohibiting, under a very severe Penalty, the Exibition of Stage Plays or any Theatrical Representation whatsoever. With respect to the first, the Suppression of Lotteries, there is a Law now in being for that Purpose, which is stated to be ineffectual, and of which it is proposed, by this Bill, to inforce the Execution, by adding to the Penalty.7 On the one hand, it has not been denied that, not-withstanding the Law now in force, several Lotteries have been set up; and, on the other, it has been confessed that the Money arising from them has been constantly Applied, to the Support of a very laudable Institution, the Academy in Pensylvania. If the Suppression of Lotteries, My Lords, had been the single Object of the Law, tho’ we think the Penaltys imposed by it extremely heavy; and tho we are not without some Susspicion, by those Penalties being transfered by this Law to the Hospital at Philadelphia, which is Particularly Patronized by the Assembly, from the Academy, which has been largely contributed to by the Proprietaries, that together with the Desire of Suppressing of Lotteries, there has mixed some Dissatisfaction at the Preference which has been shewn to the Academy.8 We should nevertheless, had the Act been confined to the Single Object of Suppressing Lotteries, have recommended it to his Majesty’s Approbation. Because, My Lords, we are clearly of Opinion, that the raising Money contrary to Law, tho it may in some degree be Palliated, can not possibly be justifyed by the unexceptionable Application of it.
Tho’ my Lords, the two Objects of Suppressing Lotteries and Plays, have been in this Act connected together by the Assembly, tho’ they have been considered as equally deserving of Discouragement, and therefore are to be attended with exactly the same Penalty, yet we beg leave to Observe that the Crown has Perpetually distinguished and considered them in a very different Light. To Laws for the Suppression of Lotteries it has in many of it’s Governments consented, and there is as we have already stated to your Lordships, a Law now subsissting in Pensylvania for that Purpose. To the total Prohibition of Theatrical Representations, we do not recollect the Consent of the Crown has in any of it’s Governments been given or even asked, and we know that to Propositions of this sort from the Assembly in Pensylvania, it has frequently been refused.9 The Argument, my Lords, upon which this Part of the Act has been Principally supported, is drawn from a Clause in an Act of the Present King, by which it is declared that stage plays shall be allowed only in Places of Royal Residence.1 We apprehend, My Lords, that it is an Acknowledged Method of Construction, that no Statute Law whatsoever can be supposed to extend either to Ireland or the Plantations by mere General words, and by Implication only, and unless they are specifically mentioned: and we Apprehend that Theatrical Representations continue to be not only permitted but encouraged in Ireland, exactly in the manner that they were before the Passing the said Act, without any real or supposed Violation of it. But tho we don’t see any sufficient reason for an absolute Prohibition of all Theatrical Representations in Pensylvania, and therefore shall beg leave to propose, that this Act may not receive His Majesty’s Allowance, Yet we do not mean, My Lords, to encourage the unbounded and irregular use of them. We are throughly sensible of the Mischiefs which might ensue from the Establishment of any thing, that had even a probable Tendency to introduce Idleness and Prodigality, in a Colony which seems so peculiarly indebted for it’s Prosperity to Frugality and Industry. To prevent these Inconveniencies we should therefore wish to see some Law, which if properly framed, we doubt not would meet with his Majesty’s Approbation, that might at once admit the moderate regulated Use of such Amusements and at the same time by proper Limitations prevent the Inconveniences that may attend their Excess.
A Supplement to the Act entitled An Act for establishing Courts of Judicature in this Province.2
The first Object of this Act is to regulate the jurisdictions of the several Courts in Pensylvania and, in particular, to transfer the decision of the Estates of Orphans and Intestates from the Orphans Court to the County Court. As far, my Lords, as relates to this Part of the Act, no Objection has been made on the Part of the Proprietaries, and the regulations upon this head, as far as we are capable of judging, appear altogether unexceptionable. The second Object of the Law is to change the tenure by which the judges now hold their Offices not only in the Province of Pensylvania but in every other Colony in North America and the West Indies, from durante bene placito to Quamdiu se bene gesserint. With respect to this latter point, it will be necessary for us only to remind Your Lordships of the decision of the Crown upon this Question when the same Principle was adopted by the Assembly of Jamaica, and a Law passed to the same Purpose, which the Crown thought proper to repeal upon an Opinion given by his Majesty’s Attorney and Solicitor General, “that it was not expedient for the Interest of either the Mother Country or the Colonies, that Judges in the Plantations should hold their places Quam diu se bene gesserint”3 And as your Lordships probably retain the same Opinion upon the same point, we apprehend that this Act will not be permitted by the Crown to pass into a Law. And we shall beg leave to assign some reasons why we think that the Principle adopted by your Lordships in the case of Jamaica, ought, for still stronger reasons, to be adhered to in this Colony. In the original Charter granted by Charles the second to Mr. Pen, the Crown has delegated, not merely by Virtue of their general Proprietary Powers, but by the most express and positive Terms, a Right to the establishment of Courts of Judicature and to the Nomination of Judges, under no limittation whatsoever; and we apprehend it would not be conformable to the justice and lenity of the Crown, to permit a Law (obtained against their Consent and by undue means) by which the Proprietaries should be limitted in the exertion of those Privileges to which they are intitled by the Charter, when nothing has been urged that can Induce the Crown to believe, that the Proprietaries have, by an improper exercise of those Privileges, committed any thing which could Induce or justify the Resumption or limittation of them; and, particularly, as no complaint whatsoever has been made, or any inconvenience stated to have arisen, from the want of justice in the Province being properly and Regularly administred. On the contrary it has been confess’d that Men of the greatest Property and characters have been from time to time appointed to the station of chief justice, and that the rest of the Judicial Offices were filled by Persons as well qualified as the Colony could supply or a Salary, so small as the present, could engage. And we cannot think that it would be Advisable to depart from what experience has shown to be attended with no Ill effects in this Colony, and under which it is confest, on all hands, Justice has been hitherto so very unexceptionably administred.
Tho the Arguments in favour of this Bill are supported by analogy to the Practice of the Mother Country, we must Observe that the change which the tenure of judges underwent at the Revolution proceeded upon the most conclusive and repeated Proofs of the most arbitrary Interposition upon Points of the greatest Importance to the constitution and of the Highest moment to the subject. In this Colony the case is directly reversed; and therefore there cannot, we apprehend, be the same necessity for extending that Principle to Pensylvania. And as we are convinced that this Act can convey no real benefit to the inhabitants of this Province, so neither can we, by recommending it to His Majesty’s Allowance, give countenance to an Opinion of its being beneficial, least we should excite a just jealousy in the other Colonys, by seeming to extend Advantages to this Proprietary Government, which have been denied to those under his Majesty’s more immediate care. My Lords, independant of the General merits of this Act, we are humbly of Opinion, that it would not be prudent to establish it in the manner that is proposed; for by leaving no Power in the Proprietaries of appointing new judges, it perpetuates in the seat of Justice, for the lives of the Present Possessors, men (excepting the Chief justice only) of Inferior Knowledge and of secondary capacity; tho’ by the Growing wealth of the Province a Salary may be advanced more adequate to the employment, and the Proprietaries be thus enabled to procure others more suitable to that station, and better qualified for the Discharge of a trust, in which every individual of the Province is so Materially interested.
An Act for the Relief of the Heirs, Devisees and Assigns of Persons born out of the Kings Liegeance, who have been Owners of Lands within this Province and died unnaturalized.4
The professed intention of the Act, my Lords, which is now before us, is to relieve the Heirs and devisees of foreigners, settled and possessing Lands in the Province of Pensylvania, who have died unnaturalized, by which their Estates have in Law escheated to the Proprietaries. The Act proposes to take away from the Proprietaries this Benefit of escheat, and to vest the Lands escheated in the Heirs and Devisees of such foreigners Dying unnaturalized, exactly in the same manner as if they had Descended from Natural born Subjects. We apprehend that, tho’ this Bill professes a tenderness to Suffering Heirs and Devisees, its real Object is to take away another of the Proprietaries rights; for tho it is set forth, in the Preamble of this Act, that Inconveniences have happened from the want of such a Law, no Evidence has been produced, nor has there been a Suggestion offerd at our Board of any Grievance, or complaint whatsoever: But on the contrary the Custom has uniformly been, on proper application to make out a new Grant to such Heirs or Devisees Conformable to the Nature of the Inheritance or the Purport of the Devise, without imposing any fine, or any new Terms, or drawing any Lucrative advantage whatsoever from the escheat. We see therefore no reason for recommending to his Majesty’s Approbation an Act, by which it is intended to take away from the Proprietaries a Right to which they are indisputably intitled by their Prerogative, and which they seem constantly to have exercised in so Disinterested a Manner. And we conceive that this Act, with regard to its present and avowed Object, seems alltogether unnecessary; for, as it is now Circumstanced, its Opperation will be only retrospective, and by that means it will provide only for those who have, by the Confession of all Parties, already been provided for by the Proprietaries Indulgence; and, with respect to the Proprietaries, it would only confirm to the Heirs and Devisees the Possession of those Lands in which they had before voluntarily invested them by their Grants. But, under this ineffective Appearance, the real design of the Act we apprehend to be this; that, the General Principle of such a Bill being once admitted as proper, and the Bill itself being now established as necessary, a Necessity of the same kind must in a short time again occur, and, what is now only to opperate retrospectively, would be extended as a permanent regulation, to opperate in future. Nor indeed do we perceive any reason why the Law should be limitted in its Operation, if the Principle, upon which the Law is founded, could be approved.
We beg leave further to observe To your Lordships that the Benefits, purposed to be conferr’d by this Act, are extended equally, and without Distinction, to Strangers of every sort, and it is not our sense that any further Privileges than those extensive ones, already allowed by the Charter, should be granted to any other foreigners than Protestants, conformably to the Act of the thirteenth Year of his present Majesty for naturalizing foreign Protestants in America;5 and it may not be improper to Inform your Lordships that an Act of this Province passed in 1700, was repealed by the Crown in 1705, on the Advice of His Majesty’s Attorney General, chiefly, because, it contained a Provision similar to that which is the Object of this Law.6
An act for appointing an agent to apply for and receive the distributive share and Proportion which shall be assigned to this province of the sum of money granted by Parliament to his Majesty’s colonyes in America.7
The Object of this Act is the Appointment of an Agent for the Particular Purpose of receiving the Proportion of the money which shall be allotted to this Province out of the sum of two Hundred Thousand Pounds granted by Parliament in the Year 1759, to be distributed to the several Colonies in North America. The Act Directs that the money should be received by Mr. Franklin, the Agent Nominated for that Purpose, and should be by Him deposited in the Bank of England, liable to the Draught of the Trustees of the Loan Office in Pensylvania. The Principal Objection made to the Act, my Lords, is this; that it cannot possibly be complyed with in the manner there prescribed; for that the money being deposited in the Bank by Mr. Franklin, the Governors will not enter into any correspondence with the Trustees of the Loan Office aforesaid, or with any person but Mr. Franklin Concerning that sum; and that they cannot issue money paid in by one Person at the Draught of another, tho the money should be paid in expressly for their Use, tho we are inclineable to believe, that the practice of the Bank is as it has been stated, Yet we are not satisfied that this can be applyed as a Conclusive Objection to this Act, nor even if it could should we think it a sufficient reason, under the Present Circumstances of the Province to advise his Majesty to anull it; for, my Lords, by the manner in which the Act is worded, it is far from being perfectly clear whether, when the Money was once Deposited in the Bank as a Place of Security it was not the Intention of the Assembly that the Trustees of the Loan Office should draw upon Mr. Franklin and not upon the Bank; and this construction has been contended for by the councel on the part of the Assembly. If Your Lordships should be of Opinion that this was their Intention, the Act stands free from the Objection which has been made; but, my Lords, whether that was, or was not the Case, we Apprehend that the Intention of the Assembly was clearly this; to receive their Proportion of the Money with as much expedition and security as possible. With respect to the first Object, the expedition; their Intention in that will be totally defeated, If the Act now before Your Lordships is to be repealed. No Money will be issued from the Treasury till his Majesty’s Disallowance of this Act is known in Pensylvania, till a new Act is passed in Consequence of it, and that again transmitted to England. With respect to security, we apprehend, it will stand nearly upon the same footing. Mr. Franklin will be equally responsible for the money he receives, and will be equally bound under the Terms of the Act to deposit it in the Bank; And we beg leave to Observe to Your Lordships that the money Distributed in the other Colonies, in consequence of the votes of Parliament, has frequently been received by the Agents of those Colonies under their General Powers of Agency only, or by Virtue of a particular Appointment, subject to no other Restriction than meerly the General Direction of remitting it to the Colony which appointed them. As therefore no personal Objection has been made to Mr. Franklin, and as the Opposition to this Act is founded principally upon a supposition that, from the manner of wording the Act, the Intention of the Assembly cannot be strictly complyed with, we shall beg leave to recommend it to his Majesty’s Approbation; because we are clearly of Opinion that the Intention of the Assembly, and, what is more material, of the British House of Commons will be better Answered, that the Interest, not only of the Province, but the Publick in General will be more effectually promoted by letting this Act be carried into execution, than by suffering the Money intended for the Encouragement of this Colony to lie useless in the Treasurey, whereby the Publick Service very possibly may be retarded; and therefore the very Intention of Parliament in giving this Money by that means be frustrated, mearly because the Assembly did not know, with sufficient accuracy, or did not attend, with sufficient care, in the Directions of the Act, to that precise manner, in which money is received and issued at the Bank. And, my Lords, we are the more Inclinable to recommend this Act to his Majesty’s Approbation, because when we look back upon the Conduct of this Province, when we consider how offten and how Ineffectually they were solicited at the commencement of the war to contribute to the Publick Service, we are extremely Disinclined to furnish not only any real discouragement, but even any colourable Pretext for withholding that Assistance in which the welfare of the Publick and of the Province may be so essentially interested.
With regard to the Disposition of the money which is in this Act reserved solely to the Assembly, independant of the Proprietaries,8 we have had often Occasion to state our Opinion to Your Lordships, in the Course of this report; and we admit this Act to be in that respect very exceptionable; Yet, my Lords, still adhering to our Principle of uniformly disapproving such incroachment, our respect to the sense of the British Legislature, which Intended that this remittance should meet with as few delays as possible, and, our regard to his Majesty’s service have Induced us, in this one Instance to suffer, tho Nothing can Induce us to Approve or for the future to advise his Majesty to permit, such a deviation from the Constitution.
An Act for the Continuance of an Act of Assembly of this Province intitled A Supplementary Act to the Act intitled An Act for Preventing the exportation of Bread and Flour not merchantable, and for the new Appointment of Officers to put the same in Execution.9
An Act for the further Continuance of an Act of Assembly of this Province, intitled An Act for the Continuance of An Act of Assembly of this Province intitled A Supplementary Act to the Act, intitled an Act for preventing the Exportation of Bread and Flour not Merchantable and for the new Appointment of Officers to put the said Law into Execution.1
An Act to prevent the Exportation of bad or Unmerchantable Staves, Heading Boards and Timber.2
In delivering our Opinion upon the Subject of these three Bills, in Order, to avoid giving any unnecessary trouble to Your Lordships, we shall beg leave to consider them together, as their Objects are nearly of the same Nature; as they are liable only to one Objection, and as that Objection is common to them all.
The purpose my Lords, of these Bills is to prevent the Commission of those frauds which frequently have been practiced in this Province in three of the most material Articles of their Trade, Bread, Flour, and Staves, and to take care that they shall be exported for the future in a Merchantable Condition, suitable to the Regulations which are therein prescribed.
To these Regulations no exception has been made, as they are manifestly Calculated for the publick good, as they tend only to Discourage fraud, and to Support the Credit of the Province and are not Detrimental to any Individual.
The only Objection which has been made to these Acts is that the Appointment of the Officers, for carrying them into execution, is taken from the Proprietaries, to whom by their Charter it properly belongs. This, my Lords, is a just and Valid Objection to almost all the Acts Against which the Proprietaries Complain; and though in these Acts this Objection has its weight, Yet, as the Privelidge here Assumed is not like the cases we had before the Honour of Stating to Your Lordships, a total change of constitutional powers and a deviation from the whole Course of Proceeding in England, but merely the Appointment of a Ministerial Officer to put in execution a particular and temporary regulation of police. We do not think the Objection considerable enough to out weigh the usefull Provisions of these Bills, and therefore we humbly recommend that they may be suffer’d to pass into Laws.
With respect to the several other Acts referr’d to Us by Your Lordships said Order, and to which no Objection has been made, we beg leave to observe that the three following are expired, viz.
An Act in Addition to an Act intitled An Act for regulating the hire of Carriages to be employ’d in his Majesty’s Service.3
An Act for extending several Sections of an Act of Parliament passed in the thirty second Year of the present Reign, Intitled An Act for punishing Mutiny and Desertion and for the better payment of the Army and their Quarters.4
An Act for regulating the Officers and Soldiers in the pay of this Province.5
And that the remaining five, as far as we are capable of judging, are extremely unexceptionable, the Objects of them being confined to the internal Government of the Province, to mere regulations of Police and matters of domestic Oeconomy; they are intitled,
A Supplement to the Act entitled An Act for regulating the hire of Carriages to be employed in his Majesty’s Service.6
A Supplement to an Act Intitled An Act for preventing Abuses in the Indian Trade for supplying the Indians, Friends and Allies of Great Britain, with Goods at more easy Rates and for securing and Strengthening the peace and Friendship lately concluded with the Indians Inhabiting the northern and Western Frontiers of this Province.7
A Supplement to an Act Intitled An Act for granting to his Majesty a Duty of Tonnage upon ships and Vessells, And also certain Duties upon Wine, Rum, Brandy, and other Spirits, and a Duty upon sugar for Supporting and maintaining the Provincial Ship of War, for protecting the Trade of this Province and other purposes for his Majesty’s service.8
An Act for regulating the hire of Carriages to be employed in his Majesty’s Service.9
An Act to continue an Act Intitled An Act for directing the Choice of Inspectors in the Counties of Chester, Lancaster, York, Cumberland, Berks and Northampton.1
Having, in Obedience to Your Lordships orders, stated our Opinion upon the several Acts distinctly which have been referr’d to our Consideration, and having assign’d our reasons why we think they may deserve his Majesty’s disapprobation or Allowance, we beg leave, after having shown how (Separate and Independant of each other) they are repugnant to Justice in a private View, to state, by considering them collectively and together, how fatal they would be to the Constitution, in a publick one. That Your Lordships may be satisfyed how entirely the Prerogatives of the Crown, which it has reserved either for its own Exercise, or which it has deligated to the Proprietaries, must of Necessity be destroy’d, if the Laws, as they have been passed, should be approved by his Majesty; or the more dangerous Claims, which have been set up to support them, should once be Admitted. For, amongst all the laws, referr’d to us by Your Lordships and Objected to by the Proprietaries, there is not a single Act, not only amongst those which we have Advised his Majesty to annull, but even which we have, from peculiar Circumstances, thought ourselves bound to recommend to his Majesty’s Approbation, that does not contain either some Encroachment on the Prerogative of the Proprietaries, as they are Trustees for the Crown, or on their Property as Land holders in the Province, and in several of the Laws Your Lordships will have perceiv’d that both these Purposes are united. By the Land Tax Act, their Property is charged with the utmost Partiality and Injustice, and thereby, in a degree taken away. By the Act for recording Warrants and Surveys they are deprived of all legal Remedy for the Recovery of their Lands, by the Establishment of a Title unreasonable and inconclusive in itself, and unknown to the Common Law. By the Act for the Relief of Devisees their Right of Escheats, which is inseparable from Sovereignty, is cut off. By the Supplemental Bill for Courts of Judicature, their clearest Power in the Appointment of Judicial Officers, tho not absolutely taken away, is considerably abridg’d. By the Substitution of Paper Money for Sterling, in the Reemission Act, their Rents are unequitably reduc’d, and thereby their express Contracts virtually annull’d; and in all the Acts which relate either to the Nomination of Officers, or to the Disposition of the Publick money, the most sacred and inviolable Parts of the Executive Power are transferr’d from the Proprietaries and drawn into the hands of a popular Assembly. To stop these Encroachments and to restrain such Irregularities, there are but two Checks, of which the Constitution, in its Nature, admits. The one is in the Hold which the Proprietaries have over the Governor, the other is in his Majesty’s Prerogative of Repeal. And Abridgement of that Prerogative has been contended for by the Assembly, the Right of the Proprietaries to instruct their Deputy they have denied; and the Justice of indemnifying him against his Principal has been supported, agreeable to what we have stated to Your Lordships at the Opening of our Report.2
And tho my Lords we think it incumbent upon us to declare that no Instance has been produced of any improper Exercise of their Prerogatives, on the part of the Proprietaries; Yet we cannot help lamenting that they have not been more consistent and uniform in the Support of them: for it is Observable, that even to the Nomination of Officers, which is so much insisted on by the Assembly, they do not pretend a Right from the Constitution itself, but derive it meerly from the Concessions of the Proprietaries; and tho they profess to be very sensibly affected at any Encroachment on the Prerogative of the Crown, and state themselves very properly as intrusted with its Preservations, yet we cannot help Observing that instead of supporting the Constitution of the Colony and their own Dignity, as a very material Part of the Legislature, they seem to have Consider’d themselves only in the narrow and Contracted View of Landholders in the Province, and to have been regardless of their Prerogatives as long as their Property remained secure, and never to have felt for their Privileges, as Proprietaries, till, by the Diminution of those Privileges their Interests were affected, as Individuals.3
But, my Lords, we Apprehend it is our Duty to hear, and, if they are just, to recommend to redress the Complaints of the Proprietaries, from whatever Motives they may proceed; to bring back, as far as shall be thought advisable by your Lordships, the Constitution of the Colony to its proper principles; to put the Government in a regular Course of Administration; to give to every branch of it the Exercise of its proper powers; to restore to the Crown, in the Persons of the Proprietaries, its just Prerogatives; to check the growing Influence of the Assembly, and to Distinguish what they are perpetually confounding, the Executive from the Legislative Parts of Government.
We are satisfied that there is nothing so likely to preserve the Tranquility of the Province itself or its Dependance upon the Mother Country as the maintaining, with a strict and steddy Hand, the necessary Powers and just Prerogatives of the Crown, and the Preferring an uniform and settled Principle of Government to an occasional Departure from it, for temporary Convenience. Every days’ Experience Convinces Us that it is in vain to negotiate away His Majesty’s Prerogative; every new Concession becomes the foundation of some new demand, and that, my Lords, of some new dispute.
This, which is true in general, Your Lordships will perceive has been particularly so in the Province of Pensylvania. For, tho no Principle of the Constitution is more known or better establish’d than the Right of the Crown, and therefore, in this case of the Proprietaries, to the sole Nomination of Officers and the exclusive Application of money, it is now contended, that the Proprietaries should not even partake in the Exercise of either of those Powers. The Proprietaries consent to share their Prerogatives with the Assembly; the Assembly insists upon ingrossing them. And even should it be apprehended that, after so much Supineness on the part of the Proprietaries and such long Usage on the Part of the Assembly, the Constitution could not, without difficulty, in every Circumstance be reestablished; We conclude Your Lordships cannot therefore be of Opinion that it ought in every Circumstance to be departed from.
If, my Lords, it could be necessary to support the Propriety of maintaining the Constitution of the Colony, by any other Reasons than those which we have already offer’d to Your Lordships, we apprehend that there are Circumstances peculiar to this Province, which make the Restrictions we have mention’d particularly Necessary. This Colony, tho in its Form of Government nominally indeed the same with those which are under the immediate Controul of the Crown, consisting like them of a Governor Council and Assembly, is in reality extremely different: The Governor and the Assembly being the only branches of the Legislature, and the only Purpose of the Council being to assist the Governor with their Advice; not that their consent is in any manner necessary, and their Advice, he may adopt or reject, as he thinks proper. By which means there is not in this Colony, as in other Governments or as in the Mother Country, any intermediate Power that may interpose between the Encroachments of the Assembly, on the one hand, or the Oppression of the Proprietaries on the other. The Assembly, My Lords, claims likewise to be intitled, from its Institution, to the Possession of very extraordinary Powers, to be a Body perpetually subsisting subject neither to Prorogation nor Dissolution, by the Authority of the Governor. It seems therefore particularly necessary, by the constitutional Interposition of the Crown, to restrain the Powers of the Assembly, sufficiently great by it’s Institution, from becoming exorbitant beyond measure, by its Encroachments; And to protect likewise the Rights of His Majesty, which have been gradually departed from by the Proprietaries, and which must always be invaded, while the Prerogatives of Royalty are placed in the feeble hands of Individuals, and the Authority of the Crown is to be exercised, without the Powers of the Crown to support it. We are, My Lords, Your Lordships’ Most obedient Humble Servants,
W G. Hamilton.
2. Penn to Peters, Dec. 8, 1759, Penn Papers, Hist. Soc. Pa.
3. Acts Privy Coun., Col., IV, 439; Francis Eyre’s bill, above, pp. 22–4. BF’s action had a significant effect on the final disposition of this measure.
4. Eyre’s bill.
5. Acts Privy Coun., Col., IV, 439.
6. Eyre’s bill.
7. Penn to Hamilton, March 8, 1760, Penn Papers, Hist. Soc. Pa.
8. Board of Trade Journal, 1759–1763, pp. 98–9, 101, 104, 106–7; Penn to Hamilton, April 10, 1760; to Peters, May 10, 1760, Penn Papers, Hist. Soc. Pa. The trial of Laurence Shirley, 4th Earl Ferrers, for killing his steward, John Johnson, was one of the sensations of the times. Lord Ferrers was convicted and was publicly hanged at Tyburn, May 5. Penn’s boy William (July 22, 1756–April 24, 1760), was his third son to die during childhood. PMHB, XXI (1897), 346.
9. The account that follows is based on the formal record in Board of Trade Journal, 1759–1763, pp. 108–13, and on Thomas Penn’s letters: to Hamilton, May 24 and June 6, 1760; to Peters, June 9, 1760, Penn Papers, Hist. Soc. Pa. Most regrettably, none of BF’s letters to Norris, Galloway, or any other Pa. Assembly leader during the spring and summer of 1760 has survived. While the final pages of BF’s autobiography, written many years later, discuss this contest in general and the later hearing before the Privy Council Committee in some detail, they contain no specific account of the proceedings at the Board of Trade. Thus we have no record of his own reactions, at the time or in later memory, to what took place during these four days when he sat silently in the hearing room and listened to the arguments of counsel for both sides. The Journal as printed gives the third day of the hearings erroneously as “Friday, May 24.” On Thursday the hearing had been adjourned “till to-morrow eleven of the clock,” and Friday was the 23d. Eyre’s bill confirms that the correct date was the 23d.
1. Presumably, Henry Wilmot, as solicitor for the Penns, also attended, though he would not have been allowed to speak and is not mentioned in the record. The Penns’ engagement of the law officers of the Crown as counsel was something of a coup. Penn told Hamilton, March 8, that they had accepted the brief “contrary to their usual practice.” He reported to Peters, June 9, that they had stated their resolution at the hearings “while they were in those offices, never to appear against us, as inconsistent with their Duty, but to advocate our Cause as the Cause of the Crown, declaring they now appeared for the Crown as well as for us.” The record of the hearings reports that BF’s counsel, William de Grey, “opened his argument by observing, in answer to what had been thrown out by the Attorney and Solicitor General, that he was equally bound, though not equally authorized, to support the rights of the Crown.” Unquestionably, the official positions of Pratt and Yorke, as well as their personal political connections, were advantageous to the Proprietors.
2. Later de Grey asked permission to postpone until the following day his reply to the attorney and solicitor general’s objections to the Supply Act, as he was not fully prepared on them. Lord Halifax, president of the Board of Trade, grudgingly consented.
3. This was the interview at which Penn contended that his father had exceeded the authority granted him in the royal charter and, if he had lured prospective settlers with promises he had no right to grant, it was their own fault that they had been “deceived, cheated, and betrayed.” BF wrote to Norris that Penn had said this “with a kind of triumphing laughing Insolence, such as a low Jockey might do when a Purchaser complained that He had cheated him in a Horse.” When a copy of BF’s letter got back to Penn he was enraged and would have nothing more to do with BF. See above, VII, 360–4; VIII, 151, 292–3, 312–13. In reporting the attorney general’s argument Thomas Penn seemed to take great satisfaction in Pratt’s attack on the Assembly’s possession of “such powers of Meeting, as my Father unwarrantably granted to them.” To Peters, June 9; see also to Hamilton, June 6, Penn Papers, Hist. Soc. Pa.
4. A reference to the £1000 presented to Denny as a salary grant immediately upon his approving the Supply Act; see above, VIII, 327 n.
5. The Journal does not specifically mention the act of September 29, 1759, supplementary to the Re-emitting Act, as having been discussed, but it probably was included in the debate on the main act.
6. Board of Trade Journal, 1759–1763, p. 120.
7. Penn to Peters, June 9, 1760, Penn Papers, Hist. Soc. Pa.
8. Penn to Hamilton, June 27, 1760, Penn Papers, Hist. Soc. Pa.
9. See below, pp. 171–3.
1. See below, pp. 196–211.
2. Section V of the royal charter to William Penn on judicial powers includes this condition: “Provided nevertheless, That the same Laws [to be enforced] be consonant to Reason, and not repugnant or contrary, but (as near as conveniently may be) agreeable to the Laws and Statutes, and Rights of this Our Kingdom of England.” The section then reserves to the King the right of hearing and determining appeals from the judgments of provincial courts.
3. Section VII of the royal charter on the transmission of local laws to England requires that all laws be submitted to the Privy Council within five years of enactment, “And if any of the said Laws, within the Space of Six Months after they shall be so transmitted and delivered, be declared by us, Our Heirs and Successors, in Our or Their Privy Council, inconsistent with the Sovereignty or lawful Prerogative of Us, our Heirs or Successors, or contrary to the Faith and Allegiance due to the Legal Government of this Realm,” from Penn or his heirs or the inhabitants of the province, and shall be adjudged and declared void by the King under the privy seal, such laws shall be void; otherwise they shall remain in full force.
4. As mentioned in the note immediately above, the Penn charter specified that any disallowance of a law was to be done “under Our or Their Privy Seal.” This provision was a departure from the practice operative for the disallowance of laws of all other colonies, which was accomplished and notified by an order in council bearing the seal of the Privy Council and signed by its clerk. The privy seal is next after the great seal in authority among all British seals and ranks substantially higher than the seal of the Privy Council.
5. The special provision for authenticating the disallowance of a Pa. act had apparently been overlooked by officials in England until a lawsuit there involving a disallowance brought the matter to public attention in 1733. At the instigation of the Proprietors Gov. Patrick Gordon proposed an act of Assembly to confirm that all such past disallowed laws were void; it was passed Jan. 19, 1734. Pa. Col. Recs., III, 535, 539, 541–2; Statutes at Large, Pa., IV, 257–60.
6. The leading example of the disallowance of a Connecticut law was the action of the Privy Council, Feb. 15, 1728, repealing the act of 1692 for the distribution of intestate estates. This disallowance was the result of a judicial appeal from the colonial courts in the case of Winthrop v. Lechmere. Under the Connecticut law the property of a person dying without a will was to be distributed (after provision for the widow’s life interest) in equal shares among all children except the eldest son, who was to receive a double portion. This arrangement was contrary to the English common law whereby the entire estate descended to the eldest son. Charles M. Andrews, “The Connecticut Intestacy Law,” Yale Review, Old Series, III (1894), 261–92; revised and printed without notes in 1933 as Pamphlet II of the Connecticut Tercentenary Pamphlet series.
7. “Resolved, N.C.D. That in case the Proprietaries shall prosecute or sue the Honourable William Denny, Esq; the present Governor of this Province, for the Breach of any Instruction, in passing any of the said Bills, this House will, as far as in them lies, support the said Governor in the Defence of such Suit, in order to the Determination of the Validity and Legality of such Instructions, in Opposition to the Royal Grant, and the Charters and Laws of this Province, and that they will give Orders to their Agents in London for that Purpose, and also will, and do hereby recommend the same to the next succeeding Assembly.” Passed July 7, 1759, Votes, 1758–59, pp. 91–2.
8. Passed April 17, 1759, Statutes at Large, Pa., V, 379–96. For this measure and Norris’ comments on it, see above, VIII, 326–7 n, 391–2, 418–20.
9. On these acts see above, VI, 257 n, 273–4, 279–84; VII, 117 n, 131–2, 145–53, 260–1, 370; VIII, 54–5.
1. Ferdinand J. Paris, Answer to Heads of Complaint, Nov. 27, 1758, above, VIII, 179–83.
2. The second section of the act imposed a tax of 18d. per pound of the “clear yearly value” of all estates, real and personal, as it “ariseth out of the premises, or otherwise to be estimated by the assessors according to their best discretion and judgment, having respect to the quantity and value of the unimproved parts of the same, as also upon all located unimproved tracts of land to be assessed and rated in the manner hereinafter-mentioned, to be paid by the owners or possessors in the manner herein-directed.” A careful reading of this section discloses no specific reference to the taxation of unlocated lands, as the Board of Trade report implies here, and on Mar. 14, 1761, the Assembly denied that any “unsurveyed Waste Lands” had been subjected to taxation. Pa. Col. Recs., VIII, 584.
3. As in previous supply acts, the Assembly named in the act itself the seven commissioners to expend the funds raised: two councilors and five members of the Assembly. These men, “or the major part of them or of the survivors of them, with the consent and approbation of the governor or commander-in-chief of this province for the time being, shall order and appoint the disposition of the moneys arising by virtue of this act …,” but two subsequent paragraphs authorizing the commissioners, “or a majority of them,” to draw orders upon the trustees of the General Loan Office for payments make no mention of the governor’s “consent and approbation” of their orders.
4. See above, p. 132 n. 3.
5. Passed June 20, 1759, Statutes at Large, Pa., V, 427–43. The act contained two principal features: 1. The Assembly desired to maintain a supply of currency adequate for the colony’s economic needs, in view of the legal requirement for the retirement and destruction at stipulated times of bills of credit authorized by acts of 1739 and 1746. Therefore the trustees of the General Loan Office, named in the act, were to prepare £36,650 in new bills of credit and were to issue £1650 of these bills and reissue all old bills received but not yet destroyed, and those to be received in repayment of the principal of mortgage loans before Oct. 15, 1769, on new loans secured by real estate mortgages or “good plate.” The loans were to run for a term of “sixteen years from the fifteenth day of October in the year of our Lord one thousand seven hundred and fifty-nine” (i.e., until Oct. 15, 1775). The new and old bills were to be current bills of credit “for the payment and discharge of all manner of debts, rents, sum and sums of money whatsoever due, … as if the same were tendered or paid in the coins mentioned” in any bond, book account, promise, or contract. 2. In order to assist John Hunter, agent to the contractors for supplying money to the royal forces in America, to meet the demands upon him pending receipt of funds from Great Britain, the trustees of the Loan Office were to lend him a combined total of £50,000 of the new and old bills for twelve months on adequate security, but without interest unless he should default in repayment. In mentioning this act to BF in his letter of July 31, 1759, Norris declared that he had had no part in it. See above, VIII, 420.
6. Passed Sept. 29, 1759, Statutes at Large, Pa., V, 456–60. This act replaced one trustee of the General Loan Office named in the act of June 20, but who had declined to serve; provided for the Assembly to fill any future vacancies among the trustees; and clarified one ambiguous detail in the former act. The Proprietors’ objections to this act are printed in ibid., pp. 687–8.
7. The date should be 1775, not 1778; see note 5, next but one above. Apparently, the Board of Trade misread the act and assumed that the 16-year extension would run from 1762 (when the bills were first scheduled to be retired) and not from 1759 as the act clearly specified.
8. The act of 1751, 24 Geo. II, c. 53. Sect. III of the act restricted bills of credit issued in such emergencies as war or invasion to five years. Sect. II restricted such bills “as shall be required for the current Service of the Year” to two years, not three.
9. Pa. Col. Recs., IV, 318–36; Statutes at Large, Pa., IV, 322–6.
1. Once again the Board of Trade seems not to have been entirely accurate in its statements. On April 10, 1759, the Board had reported on North Carolina acts of 1748 and 1754 which it criticized for the reasons set forth in the present report. The Board members had gone on to say that they should have proposed “the immediate Repeal of them did they not consider the infinite Confusion which must arise in the Province” in consequence; instead, they proposed an additional instruction to the governor of North Carolina demanding a new law amending the previous ones to require all debts to British subjects to be payable at the true rate of exchange and declaring that paper currency was not to be legal tender for the payment of quitrents or any debt due the Crown. Such an additional instruction was issued June 8, 1759. Neither act was repealed. Acts Privy Coun., Col., IV, 414–16, 807; William L. Saunders, ed., The Colonial Records of North Carolina, VI (1888), 22–4, 43–5; Leonard W. Labaree, Royal Instructions to British Colonial Governors 1670–1776 (N.Y., 1935), I, 229–31.
2. Granted the empty condition of the Pa. Treasury, this charge of “tacking” one matter to another in a single act is only partially valid. If the Assembly was to authorize a loan to Hunter of all or any significant part of the £100,000 he asked for, the money had to be provided either by a new issue of bills of credit, by the re-emission of old bills, or by a combination of the two. The proceeds of the recently passed £100,000 Supply Act were earmarked for other purposes. The Assembly chose the last of these possibilities and, quite reasonably, combined in one measure the provisions for the bills of credit and the authorization of the loan. Valid criticism for “tacking” could be directed only at those sections of the act which authorized the re-emission of all bills of credit to be received in the future in repayment of principal on loans before Oct. 15, 1769, and declared that the bills were to be legal tender.
3. This allegation by the Proprietors’ counsel, repeated without investigation by the Board of Trade, is not clearly supported by the record. There is no evidence in the journals of the House or the minutes of the governor’s Council that this Assembly even considered a re-emitting bill between its first sitting on Oct. 14, 1758, and May 31, 1759, or that Denny rejected such a bill, as alleged. On May 29 a memorial from John Hunter asking for a loan of £100,000 and a supporting letter from General Stanwix were read in the Assembly, and the next day the members voted “by a great Majority” against bringing in a bill to strike £100,000 in bills of credit to lend to Hunter. Votes, 1758–59, pp. 71–3. Then on May 31 the House, for the first time, took “into Consideration the Expediency of preparing and offering” a measure to re-emit old bills of credit and ordered such a bill prepared. Ibid., p. 74. When the bill was debated at its second reading, June 6, the House voted to recommit it for certain amendments and again “by a great Majority” ordered the inclusion of a clause to authorize the loan to Hunter of an unspecified sum. Ibid., pp. 76, 77. What political pressures or tactical considerations led to this vote are not recorded. The bill as amended and with the provision of a loan of £50,000 to Hunter (half what he had asked for) went to Denny on June 9. Ibid., p. 78. The bill was shown to Hunter and Stanwix and Hunter appeared before the Council asking that the time stipulated for repayment be extended from six to twelve months and that the loan be increased to £75,000. The councilors favored the loan but, without suggesting where the money was to come from, took strong exception to the other features of the bill on much the same grounds as are found here in the Board of Trade report. Denny, however, reminded them of his obligation “to promote the King’s Business,” and after the Assembly had rejected all of his proposed amendments except the extention of the time for repayment, approved the bill, June 20, in spite of a formal protest from the councilors. Pa. Col. Recs., VIII, 342–3, 350–2, 353–4, 357–60, 362; Votes, 1758–59, pp. 80, 81, 83, 87.
4. Passed July 7, 1759; Statutes at Large, Pa., v, 448–55. Various documents relating to this measure are in ibid., pp. 670–87. Norris called it “a Just and equitable Law between the Proprietaries and the People” and advised that “no reasonable Expence should be spared” to get it confirmed. He believed that “it guards us against the Iniquity of the Land Office which has Tyranized over this poor Colony so many Years without Countroul, in my Opinion without Mercy and without Justice.” See above, VIII, 419–20, 428–9.
5. On July 4, 1759, during the controversy over the bill, the Assembly sent to Denny a paper of remarks on the governor’s criticisms of the bill. It was written by Joseph Galloway, described as “a Gentleman of the Law, a Member of our House.” In it he declared unequivocally: “A Warrant and Survey returned into the Surveyor General’s Office, without more has ever been adjudged by all our Courts of Justice, to give a good Title as well against the Proprietaries as all Subsequent Purchasers, and this is founded on an Original Covenant on Record with the People.” Pa. Col. Recs., VIII, 363–9; Statutes at Large, Pa., V, 678–85.
6. Passed June 20, 1759, Statutes at Large, Pa., V, 445–8. When the bill was first presented the Council told the governor they believed it “was principally intended to destroy the College, Academy, and Charity School,” and that “of Late the Academy had drawn its principal Support” from lotteries. Pa. Col. Recs., VIII, 339–41. The bill was introduced, however, only after the Assembly had received addresses, May 22–26, from the Society of Friends, the Presbyterian Synod, and the Lutheran and Baptist Congregations, who were aroused by the building of a theater, then in progress, for the permanent use of the Hallam (or “American”) Company, at this time under the direction of David Douglass. Votes, 1758–59, pp. 69–71. The Council, dominated by the more “worldly” Anglicans, objected to the ban on plays as well as to that on lotteries. On the beginnings and early growth of the theatre in Philadelphia, see Carl and Jessica Bridenbaugh, Rebels and Gentlemen Philadelphia in the Age of Franklin (N.Y., 1942), 137–46. That BF put much heart into the defense of this act is difficult to believe. For his instigation of two lotteries in Philadelphia in 1747–48 and his connection with others, see above, III, 220–4, 229–31, 288–99, 470; V, 435–7, 505–11; VI, 361, 403–4, 424. There is considerable scattered evidence in his own correspondence and that of friends showing his attendance at the theatre while in London.
7. For the method by which the former lottery law was regularly evaded, see above, V, 436 n.
8. Although BF had been instrumental in founding the Academy, its head was William Smith, vigorous critic of the Assembly recently tried by it for libel, and Richard Peters, the proprietary secretary, had replaced BF as president of the Academy Board of Trustees in 1756. BF’s connection with the Hospital, and that of many political friends, continued close.
9. An Act against Riots, Rioters and Riotous Sports, Plays and Games, passed Nov. 27, 1700, and An Act against riotous Sports, Plays and Games, passed Jan. 4, 1706, were disallowed, Feb. 7, 1706, and Oct. 24, 1709, respectively. Statutes at Large, Pa., II, 4–5, 186–7, 449–56, 489–90, 526–9.
1. Sec. V of the so-called Licensing Act of 1737, 10 Geo. II, c. 28, forbids any form of play or entertainment of the stage except in the city of Westminster and any place where the King may reside, and then only during his residence there.
2. Passed Sept. 29, 1759, Statutes at Large, Pa., V, 462–5.
3. The Jamaica act of 1751 was repealed Feb. 28, 1754. Acts Privy Coun., Col., IV, 215–17. The question of whether colonial judges should have tenure during pleasure (durante bene placito), as the officers of the Crown insisted, or during good behavior (quamdiu se bene gesserint), as had been the practice in England since the Revolution of 1688 and as many Americans demanded, became a critical issue in several royal provinces at just about this time. It involved the central question of the independence of the judiciary. It is a matter of special interest here because BF’s old political antagonist Robert Hunter Morris, now chief justice of New Jersey, insisted that when Governor Josiah Hardy renewed his commission following the accession of George III it should continue his former tenure “during good behavior.” The New Jersey Assembly supported this demand and, in spite of strict instructions to the contrary, Hardy weakly gave way. When word of his disobedience reached England in the spring of 1762, the King promptly dismissed Hardy from office and to the governorship thereby vacated soon appointed none other than BF’s son William. The widespread and protracted controversies over tenure of the judiciary are discussed in Leonard W. Labaree, Royal Government in America (New Haven, 1930), pp. 388–401.
4. Passed June 20, 1759, Statutes at Large, Pa., V, 443–5. The Proprietors’ objections are printed in ibid., pp. 669–70. Norris called it “a Righteous and valuable Law.” For his comment and a summary of the act, see above, VIII, 420 and n.
5. 13 Geo. II, c. 7, 1740.
6. An Act for the Effectual Establishment and Confirmation of the Freeholds of This Province and Territories, Their Heirs and Assigns, in Their Lands and Tenements (sect. x), passed Nov. 27, 1700; disallowed Feb. 7, 1706, Statutes at Large, Pa., II, 118–23, 449–56, 495–6.
7. Passed Sept. 29, 1759, Statutes at Large, Pa., V, 460–2. On the parliamentary grant, see above, VIII, 292–3 n, 333, and below, this volume, p. 186 n.
8. The act provided that when the trustees of the Loan Office finally received the proceeds of the grant they were to purchase Pa. bills of credit and turn these over to the committees of the Assembly annually appointed, who were thereupon to “burn, sink and destroy” the bills “unless the same shall be otherwise disposed of by act of assembly.”
9. Passed Sept. 27, 1758, Statutes at Large, Pa., V, 374–6. For the Proprietors’ objections, see ibid., pp. 663–5.
1. Passed Oct. 19, 1758, Statutes at Large, Pa., VI, 5–6. For the Proprietors’ objections, see ibid., V, 688–9.
2. Passed April 21, 1759, Statutes at Large, Pa., V, 400–5. For the Proprietors’ objections, see ibid., pp. 666–9.
3. Passed Sept. 29, 1758, Statutes at Large, Pa., V, 376–7.
4. Passed April 21, 1759, Statutes at Large, Pa., V, 409–20.
5. Passed April 21, 1759, Statutes at Large, Pa., V, 424–7.
6. Passed Sept. 20, 1758, Statutes at Large, Pa., V, 372–4.
7. Passed April 17, 1759, Statutes at Large, Pa., V, 396–400.
8. Passed April 21, 1759, Statutes at Large, Pa., V, 406–9.
9. Passed April 21, 1759, Statutes at Large, Pa., V, 420–24.
1. Passed Sept. 29, 1759, Statutes at Large, Pa., V, 465–6.
2. This paragraph was intended, of course, as a strong defense of the Proprietors and a scathing criticism of the Assembly. It would certainly be read as such by members of the Privy Council Committee to whom it was addressed. To readers of a later century, however, the paragraph may suggest some of the features of the proprietary system of colonial control which many Pennsylvanians found most obnoxious. Joining in the hands of one or two private individuals in far-off England, as the system did, both inherited powers of government and the overlordship of the soil of the province, feudal in origin, it seemed to promote inefficiency of administration and an almost classic example of conflict of interest. Though such men as BF and Norris might recognize that direct royal government was not likely to be any more liberal, they could well believe that its substitution for proprietary government would remove the special handicaps under which only Pennsylvania, the lower counties on Delaware, and Maryland, among all British colonies in the New World, still suffered.
3. This and the following paragraphs greatly vexed Thomas Penn. In a letter to Governor Hamilton, June 27, 1760, he wrote: “They [the Board of Trade] have been pleased in a manner I do not so well like, to censure us for not attending so closely to the proceedings of the Assembly as to prevent their incroachments on the prerogative, and say we look upon our selves as Landholders only, which I think is not to be accounted for when they know we have been disputing with the Assembly for twenty years past in support of the prerogative of the Crown. However as they have reported against these Laws we must put up with that and the more readily for that it shews their disapprobation of the encroachments and claims of the Assembly.” Hist. Soc. Pa.