Pennsylvania Assembly: Reply to the Governor
Printed in Votes and Proceedings of the House of Representatives, 1763–1764 (Philadelphia, 1764), pp. 69–72.
Governor Penn apparently spent most of the morning of March 23 composing a reply to the Assembly’s message of the 22d (see immediately above). He signed it in the afternoon and sent it to the Assembly. In it he expressed his deep concern that in the critical military situation the supply bill must be lost unless the Assembly should insert the clauses of the Privy Council report, but he insisted that the failure of the supply would not be his fault. He reviewed the dispute up to date and then for the first time stated flatly what he believed the disputed stipulations to mean: “The only Construction I can put upon them or that they can bear, without torturing is, that if Five, Ten, or Fifteen Pounds, is the lowest at which any such Lands of the Inhabitants are assessed, none of the located uncultivated Lands of the Proprietors shall be assessed higher.”7 If, as the Assembly had asserted in their previous verbal messages, the wording of the Privy Council’s stipulations was so ambiguous as probably to cause varying interpretations among the local assessors, he explained, the provincial Board of Appeals provided for in the bill would quickly bring about uniformity of assessment.8
Upon hearing this message the Assembly voted, again without dissent, to adhere to the bill as it stood, and appointed a new committee of eight, including Franklin, to prepare a response to the governor. The committee presented its draft on the 24th; “some Alterations” were made; it was agreed to, transcribed, signed by the speaker, and sent to Penn the same day.9
The rising temper of the Assembly can be readily detected in the phraseology of the final paragraphs of this message.
March 24, 1764.
May it please your Honour,
We have considered your Honour’s Message of Yesterday Afternoon, sent down to us with our Supply Bill, and are extremely concerned to find, that notwithstanding His Majesty’s Service, and the present Situation of our Affairs, which you well describe in the first Lines of the Message, do so plainly mark the Utility and Necessity of passing that Bill, yet it must, you are pleased to say, be rejected.
We are sensible that your Honour did make to a former Bill the Objection you mention, concerning the incidental Charges;1 but as the House long since dropt that Bill, and, out of Zeal for the Service, broke through their Rules, and in the same Sitting prepared and presented another Bill, free from that Objection, we cannot conceive why it is repeated here, unless to swell, in Appearance, the Number of supposed Faults in the present Bill, with which it has nothing to do.
It obliges us now, however, to explain that Matter. The incidental Charges of the current Year are well known, and cannot be, as your Honour unkindly says, “every Thing that the Assembly shall please to certify to be such.” The Sum they may amount to, is not indeed so certain, varying a little in different Years; but was always, and must be small, compared to the Sum granted in the Bill. The Course relating to them, even since the Order of Council, has been, for the Governor to request an Estimate of the Particulars, and for the House to give it, as near as they could; and his passing the Bill, after receiving such Estimate, was understood, both by him and the House, to be his Consent to that Application, and those Issues. The Clause was inserted in Compliance with that Practice, and your Honour might, and would, have had the Estimate as soon as it could be prepared, on the least Intimation; but it seems you were better pleased with the Opportunity you supposed it gave you, of making some Charge against us, as contravening the fourth Article in the Order of Council, viz. “That the Governor’s Consent and Approbation be made necessary in every Issue and Application of the public Money.” It was a Matter of so small Consequence, that we did not think it worth a Word of “Controversy,” at such a Time, and therefore, in the new Bill, totally dropt the Clause, leaving those incidental Charges to be provided for in some other Way we might afterwards agree upon; but your Honour chuses to repeat the Accusation, though now so evidently out of Time.
You are pleased to say, “you know of no other certain Rule of judging of the Intentions of another, than by the plain Import of the Words made use of to convey them.” We beg Leave to point out to your Honour another Rule, and, we think, a better. Laws and Ordinances, though composed by the wisest Men, in Councils and Parliaments, practiced in using the greatest Clearness and Precision, are sometimes found to contain Obscurities and Uncertainties, which those who are to execute them, find difficult to clear and settle: It is no Reflection on such Bodies, to say this: Every Thing human is subject to Imperfection: But where the Words are, by Construction, capable of two opposite Meanings, the one manifestly unjust and unequal, and the other perfectly consistent with Justice and Equity, we conceive it a good Rule to judge that the Intention is with the latter. Respect to the Body forming such Law requires it. Common Candour demands it. Now, in the present Case, the Intention of the Lords of the Council, in certain Words by them made use of, is to be judged of by your Honour and the Assembly, in order to form a Law agreeable to them. The House, in the Bill, put a Construction on them, conformable to common Justice and Equity; your Honour was pleased to tell us, that the Words have a very different Meaning, but for some Time refused to say what you conceived that different Meaning to be, insisting on our using the very Words, without Explanation. It was not till after three Messages, requesting your Honour’s Judgment of that Meaning, and several Days spent in our Endeavours, that we have been able to obtain it; and now that we have it, and consider it, we do not wonder it should be so long refused. It is at length this, “That if Five, Ten, or Fifteen Pounds, is the lowest at which any such [i.e. located uncultivated]2 Lands of the Inhabitants are assessed, none of the located uncultivated Lands of the Proprietaries shall be assessed higher.” Had we been fortunate enough to have used these Words in our Bill, we now have Reason to believe your Honour would not have referred us back to the very Terms of the Report, and insisted, that any Amendments or Additions of ours would rather tend to perplex than explain those Terms. But your Honour must know, that many of the located uncultivated Lands belonging to the Inhabitants cannot, from the Nature of them, be, in Justice, assessed higher than Five Pounds per Hundred Acres, while the best of their Lands must by the Law be assessed at Fifteen Pounds. And can your Honour think it just, that because the worst, and least valuable of the Peoples Lands are rated at Five Pounds, the best, and most valuable of the Proprietaries Lands should be assessed no higher, when it is well known they select and locate the best in every new Purchase, before the People are allowed to take up any? Your Honour will not say this, because it is inconsistent with all our Notions of common Honesty. The same Modesty which so long prevented your Honour’s confessing to us your Opinion of the Meaning of those Words in the Order of Council, will prevent your insisting on that Meaning as a just One. And for our Parts, we dare not put so iniquitous a Construction on their Lordships Words. Respect and Decency forbid it.
Your Honour tells us, that you cannot, “consistent with your Duty,” pass this Bill. If Duty to the Crown is meant, can your Honour seriously attempt to persuade us, that the Crown will be offended with a Proprietary Governor, for giving up an unjust Proprietary Claim to Partiality in Assessments in Favour of Proprietaries private Estate, where no Point of Government, or Prerogative of the Crown, is concerned? But perhaps your Honour means Duty to the Proprietaries, as your honoured Father and Uncle; if so, we must allow that Duty well supported, and enforced by your own private Interest; for such a Partiality in Favour of Proprietary Estates, must not only be extremely agreeable to the present Possessors, (from our Acquaintance with them for some Years past we speak it) but, if it can be established, will be highly advantageous to their Posterity.
Your immediate Predecessor, Governor Hamilton, assured a former Assembly, that “nothing was further from his Thoughts, than to desire that the Proprietaries Estate should be exempted from paying a proportionable Part of the Supplies for the current Service.” And, “that it was of the Essence of free Governments, that the Money raised for public Services should be assessed equally upon all Ranks and Conditions of Men, otherwise the highest Injustice may be committed under the Sanction of Law.”3 There seems now some Reason to apprehend, that these equitable Sentiments of that Gentleman might possibly have a Share in occasioning his Removal; and we shall not wonder if your Honour, from a nearer Connection with the Proprietaries, has imbibed others extreamly different.
The Inconvenience we mentioned that might arise from the Assessors of different Counties differing in their Opinion of the Meaning of the Terms you require in the Bill, your Honour apprehends will be removed by Means of the Provincial Commissioners of Appeal; which we own we do not see. The Assessors of different Counties may not only fall on different Modes of Taxation, as they differently understand those unexplained Terms, but should Half the Assessors in one County understand them one Way, and the other Half the other, no Tax can be laid, or Money raised in that County, till they agree. The Provincial Commissioners of Appeal too, being nine, and five of them a Board, three of which can determine, may, being of different Opinions, give different Judgments at different Sittings, as often as three, the Majority of a Board, happen to be taken from those who are of one or the other Opinion; besides, though the Assessors below should, from a right Understanding of the unexplained Words, act rightly, if the Provincial Commissioners, for Want of Explanation, understand the Words in the wrong Sense, they may, on Appeals, overthrow every right Assessment in the Province. In short, we conceive that much Confusion must arise from the using of Terms in a Law, that the Governor and the Assembly both declare they understand so differently. We may both be separately clear in our Conceptions of their Meaning, but our differing so widely in those Conceptions, seems to indicate at least some Ambiguity or Obscurity in the Terms; and we believe this is the first Time that ever the Enacting an Obscurity in a Law was insisted upon, in Hopes that some who were to execute it, might possibly see more clearly through it than the Legislators themselves.
Your Honour is pleased to profess great Concern for the “Safety and Security of the Province, and for the Blood of His Majesty’s brave Subjects, which may be spilt on the Frontiers, for Want of a Law to provide for their Protection,” and yet refuse to pass this Bill, unless gross Partiality in taxing is established by it in Favour of the Proprietary Estates. You have twice told us, that “you are not unacquainted with the long and various Contests on this Subject that have been agitated between the legislative Branches here, nor with the Evils and Miseries which were entailed on the Frontier Inhabitants by those Disputes:” As you must then know that those Contests arose solely from Proprietary Injustice, you cannot be ignorant to whom all those Evils and Miseries ought to be imputed. And, on a little further Reflection, will find that you do really “flatter yourself,” as you well express it, when you imagine, that “none of the ill Consequences which may ensue from the Failure of this Bill can justly be imputed to” You. Your Honour has refused to pass it at present, and our Affairs lay us under a Necessity of making an Adjournment; but we now acquaint you, that the Bill continues to lie ready for your Assent, and that we shall chearfully return on your Summons, whenever, upon more mature Consideration, you shall find yourself willing to enact it into a Law. In the mean Time, if any ill Consequences ensue from the Delay, they will undoubtedly add to that Load of Obloquy and Guilt the Proprietary Family is already burdened with, and bring their Government (a Government which is always meanly making Use of public Distress, to extort something from the People for its own private Advantage) into (if possible) still greater Contempt.
For our own Parts, we consider the Artifices now using, and the Steps taking to enflame the Minds of unthinking People, and excite Tumults against the Assembly, as concerted with a View to awe us into Proprietary Measures: But as these Seats were given us from no Solicitations of ours, and as we have no private Interest to serve by retaining them, nor any Pleasure in the Possession of them, we are very willing to quit them, whenever our Constituents think proper to relieve us, by chusing other Representatives, which our annual Elections give them frequent Opportunities of doing. And for the present Safety of the Persons and Properties of the good People of this Province, since the Governor will not pass the equal Militia Bill we offered him, but upon Terms of great Addition to Proprietary Power,4 which we hope, and are persuaded, no future Assembly will agree to, we must for the present depend on ourselves and our Friends, and on such Protection as the King’s Troops can afford us, which we hope, by the Blessing of God, will be sufficient to defend us, till His Majesty shall graciously think fit to take this distracted Province under His immediate Care and Protection.
Signed by Order of the House,
Isaac Norris, Speaker.5
7. The bill provided that “All located and unimproved Tracts of Land, shall be rated in Manner following, to wit, the best of such Lands considering the Situation thereof at Fifteen Pounds per Hundred Acres; and the worst, at Five Pounds per Hundred Acres; and the same Kind of Land of any intermediate Value, in a just and comparative Proportion to the above Rates and Valuations.” Another clause provided that “All unimproved Lots in or near any City Borough or Town or the District of Southwark (the Lots granted by the Charter of the City of Philadelphia for the use of the said City only excepted) shall be rated at the Value, which they do or may rent for on short Leases.” A later section, quoted in part in the headnote to the document immediately above, provided for assessment of located, uncultivated proprietary lands and lots at the same rates as land of the inhabitants of similar “Situation, Kind and Quality.”
8. Votes, 1763–64, pp. 68–69; Pa. Col. Recs., IX, 158–60.
9. Votes, 1763–64, p. 69. Of the eight members of this committee, four, including BF, had been on the committee to draft the message of March 22.
1. See the headnote to the document immediately above.
2. Brackets in the original.
3. In a message to the Assembly, April 2, 1760, relating to the supply bill of that year. 8 Pa. Arch., VI, 5123, 5124.
4. As the result of the disturbances caused by the march of the Paxton Boys, Governor Penn recommended to the Assembly on February 4, 1764, the passage of a militia act. BF was a member of the committee thereupon appointed to prepare a bill. It was introduced February 17, debated at various sittings, and passed by the Assembly on the 28th. Penn returned it March 12 “with a Sheet of Amendments.” The most important of his objections was to the provision for the election of militia officers, as had been the rule under previous militia laws as far back as BF’s first act of 1755; see above, VI, 266–73. Penn felt that he should have the right to appoint the officers, but Assembly members regarded this and other proposals as tending to increase dangerously the proprietary authority. They debated the matter on March 17 but took no further action. Votes, 1763–64, pp. 43, 44, 49, 51–3, 60, 61; Pa. Col. Recs., IX, 133–5, 151. See also the document immediately below, and BF’s defense of the Assembly’s bill, Sept. 28, 1764, below, pp. 360–5.
5. The assemblymen appointed to carry this message to Governor Penn were instructed to tell him that the Assembly proposed to adjourn to May 14 if he had no objections, “to which he was pleased to answer, it was very well.” Votes, 1763–64, p. 72. Consequently he had no opportunity to reply for more than seven weeks. For the next documents in this exchange see below, pp. 203–13.