Pennsylvania Assembly: Reply to the Governor
Printed in Votes and Proceedings of the House of Representatives, 1763–1764 (Philadelphia, 1764), pp. 89–91.
The Assembly’s message of May 26 (immediately above) had made clear to Governor Penn and his Council that the assemblymen had no intention of including in the supply bill any formal amendment of the acts of 1759 and 1760. It did include references to the Supply Act of 1760, however, and in the opinion of the councilors these had the effect of reenacting it. Consequently Penn sent the bill back again on May 29 with a message “earnestly” desiring the Assembly to “free it from this Objection, by striking out the exceptionable Clause.” If it did so Penn would “no longer with-hold my Assent” to the bill.9 After considering this message the same day, the House formally “Resolved, That the Necessity of raising Money for His Majesty’s Service, and the Defence of this Province, is so great and pressing, that the House will, in this Instance, as they have done in some preceding Instances during their present Session, wave their important Parliamentary Rights relating to Money Bills, and agree to the Alteration of the present Bill as proposed by the Governor; protesting at the same time against the Violence done to the Constitution, and declaring that the same ought never, never to be drawn into Precedent.”
Thereupon the assemblymen made one last retreat and amended the bill by striking out all reference, direct or indirect, to the Supply Act of 1760 and substituting new phraseology where necessary. They sent the bill to the governor at once and Penn enacted it on the morning of May 30, nearly five months after the Assembly had first voted to raise £50,000 for the military expenses of the year.1
The Assembly did not now—and never did thereafter—formally amend the acts of 1759 and 1760, yet they had clearly suffered a major defeat over the central issue in the controversy: the basis for assessing the Proprietors” located but uncultivated lands and ungranted town lots. The actions of the Paxton Boys, the complaints of inhabitants of the interior counties that they were underrepresented, and the requirements of colonial defense against the Indians had combined to create pressures too strong to resist. And John Penn had absolutely refused to yield on this central issue. Such firmness was unusual among governors of either proprietary or royal provinces. Again and again in times of war or other danger the executives, usually with a more acute realization of the needs of the moment than their assemblies showed, had given way to the demands of the legislatures that were made effective by the control over appropriations. In Pennsylvania in 1764, however, the outcome was reversed. The Assembly surrendered under heavy fire and the governor held the field.
Each party to the dispute was doubtless sincere in thinking that right was on its side. What made the Assembly’s defeat even more galling to its members was the belief that Penn was holding out, not from some abstract principle of government at large or some general interest of the public, but simply to protect a personal and financial interest of his father and uncle, the two Proprietors of the colony, whose taxes would be somewhat lowered if his interpretation of the disputed words in the order in council of 1760 were to prevail. This belief and the bitterness it engendered were responsible for the decision, long discussed but formally reached only at this session, to petition the King to remove the Proprietors from any share in the government. This feeling also led the Assembly to deliver one final blast against the governor before adjourning for the summer.
On May 17, after reading Penn’s long message of that day, the Assembly had appointed a committee of seven, including Franklin, to prepare a reply. On the 28th, with Franklin now officiating as speaker, the committee reported its draft. The Assembly debated it paragraph by paragraph, agreed to it, and ordered it to be transcribed. Then on May 30, after all remaining business was finished, the transcription was brought forward, “compared at the Table,” and signed. Two members were directed to present it to the governor with the information that the House proposed to adjourn to September 10. To this adjournment Penn replied that “he had no Objection.”2
May 30, 1764.
May it please your Honour,
The professed Intention of your Honour’s Message of the Seventeenth Instant being to vindicate the Character of the Proprietaries, and give a fairer State of the Dispute between us than we had done, it would have pleased us, could either of those Purposes have been executed. We apprehend your Honour has failed in both.
The long Recapitulation of what passed at the Council Board in 1760, and from thence to the present Time, answers no End, as we conceive, but to insinuate that we have been contending against a Determination of the King in Council, while the Fact really is otherwise, we having made the late Bill conformable, in our Opinion, to every Article of that Determination. And the Dispute between us relates merely to the Meaning of one of those Articles, which we understand to intend an equal Taxation of the Proprietary Lands with those of the People, and which your Honour will have to mean, a partial and unequal Taxation in the Proprietaries Favour. And as you thought the Words alone of that Article would best bear the unjust Meaning you were pleased to put on them, you contended against our using any others with them, that might explain them in an equitable Sense. This was our sole Dispute; and though we think it extreamly inconvenient and improper to use in an Act Words of whose Meaning the two Branches of the Legislature have previously declared they have such different and contrary Conceptions, yet rather than His Majesty’s Service should be longer obstructed, we have given up the Point, and, in a new Bill, inserted the very Words; confiding, that the Sense of natural Justice in the Assessors and Commissioners, who are to execute the Act, will determine them to do what is right.
Thus the Matter might have rested; but as your Honour, with a View of placing our Conduct in an unfavourable Light, is pleased to ask us a Number of Questions, we are obliged to give them Answers, which, though short, we hope will be clear and satisfactory. “Were not learned Counsel,” you ask, “employed, and fully instructed by the Agents, on the Part of the Assembly, to advocate the Supply Bill of the Year 1759?” We answer, yes. “Were not those Counsel twice fully heard, both before the Lords of Trade and the King in Council, antecedent to the Decree?” They were fully heard before the Lords of Trade, and a Committee of the Council.3 “Did not the Agents understand the Force and Meaning of the second and third Articles, previous to their signing the Stipulation?” Undoubtedly; and as we have no Dispute about the Meaning of the third, we scarce know why it is mentioned.4 “If they entertained a Notion that they were ambiguous, why did they not then object to them, when they might have had their Doubts removed upon the Spot?” It seems they entertained no such Notion, nor had any Doubts to be removed. It appears, by the Pleadings of the Proprietaries Counsel, of which we have a Copy taken first in Short-hand,5 that they there made no such Claim of a partial and unequal Taxation of their located uncultivated Lands, as is now made for them. They only pretended Fears that the People would tax them unequally, and desired no more than that such Provision should be made, as might secure for them an equal Taxation. The Doubts you mentioned, if there are any, have arisen in Pennsylvania. Your Honour makes it a Crime in us, to suppose any Ambiguity or Obscurity in the Words of a Report of a Committee of Council, though that Supposition arose merely on the Observation of your differing so widely from us in the Construction of them. This was our Remark; “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.” If your Honour had not differed from us in the Meaning of these Words of the Report, there would have been no Doubts about it, for we made none. And our Observation, that Laws, composed by the wisest Men, are sometimes found to contain Obscurities and Uncertainties, which those who are to execute them find difficult to clear and settle: And that, when any Words of such Laws are capable of two Meanings, one unjust and unequal, and the other consistent with Justice and Equity, we conceived it a good Rule to judge that the Intention is with the latter, arose originally upon your differing with us in that Construction. But this you candidly call a “contending that the controverted Articles of the Decree require Additions and Explanations to be made to them by us, to reconcile them to common Justice and Honesty.” For our Parts, we cannot yet perceive any Thing indecent or “immodest” in our Observation, that Laws made by the wisest Bodies of Men (by King, Lords and Commons, for Instance) do sometimes contain Obscurities and Uncertainties. Subsequent Laws frequently made by the same august Legislators, to explain the preceding, are Proofs of it. We therefore added justly, that it was no Reflection on such Bodies to say this. But as your Honour purposed to make us appear guilty of a Reflection on them, you thought fit to mutilate the Sentence in your Quotation of it from our Message, and leave those Words intirely out. But to return to your Honour’s Questions. “Why were not the Objections lately made against those Parts of the Decree, pointed out and urged to Mr. Hamilton, as Reasons for not coming into the Measure, when he repeatedly solicited you to comply with the Stipulations of your Agents?” Answer, The Objections in Question are against an unjust Construction that, in our Opinion, your Honour put on certain Words, which being used in the Stipulations of the Agents, you contended should be inserted, without Explanation, in the Bill. As this Construction was never put on those Words by Governor Hamilton, we could not point out and urge to him those Objections against it. “Why have these Objections been treasured up, and kept in Reserve till this critical Period?” Objections not in Being could not be “treasured up;” and Objections of no Kind can exist, previous to a Supposition of the Thing objected to. Your Honour will please to reflect that your Construction, which these Objections relate to, was as new and strange, as it is unjust and unequal, and so glaringly unjust and unequal, that you was yourself unwilling to own it, and could not, till after three Messages, urging an Explanation from you, prevail with yourself openly to avow it.6
You are pleased to add, “as to the Equity and Justice of the Decree, I should think I justly subjected myself to the Charge of offering the highest Affront to, and flying in the Face of, that supreme and august Judicatory who pronounced it, were I to enter into any Arguments with you in Support of it.” Will your Honour give us Leave once more to put you in Mind, that it is not the Equity and Justice of a Decree that we are disputing, but your unequal and unjust Construction of it, viz. that the best and most valuable of the Proprietaries Lands shall be taxed no higher than the worst of the Peoples. Your total Inability of supporting this Construction by the least Colour of Argument or Reason, is what you would fain conceal under that extravagant Pretence of Respect to the Judicatory who, you say, pronounced it. Could you, by any Arguments, have shewn the Equity and Justice of such a Taxation, we should not now have heard, for the first Time, this extraordinary Position, that demonstrating the Equity and Justice of a Decree, would be flying in the Face of Authority. Wise, learned and pious Men, have in all Ages thought themselves well employed in convincing Mankind of the Reasonableness, Equity and Justice of Laws, human and divine; and never once dreamt that, by so doing, they were “offering the highest Affront to, and flying in the Face of, the supreme and august Judicatories who pronounced them.”
Your Honour charges us with bestowing much Abuse on the Proprietaries. Stating plain public Facts, where necessary, we do not conceive to be Abuse, though done in plain Terms: But the misrepresenting a loyal and dutiful People to their Sovereign, as the Proprietaries, to cloak their own Avarice, have done the People of this Province for many Years past, is, in our Opinion, Abuse, though it were delivered in the politest Language. It was in this Part of your Honour’s Message that we expected that Vindication of the Proprietaries, which in the first Paragraph seemed to be proposed: But now you chuse to pass all over with a “silent Disregard,” reflecting probably on the Maxim you had before advanced, that “Facts are stubborn Things,” and despairing, it seems, by any “Colouring” to “disguise the Truth.”
Your Honour’s “Resolution to discharge the Station you fill, with Fidelity and Justice to the good People of this Province,” is highly laudable; but may we be permitted to ask a Question or two in our Turn? Is it consistent with Justice to the good People of this Province, to insist on taxing the best and most valuable of the Proprietaries Lands no higher than the worst and least valuable of the Peoples Lands, in a common Tax to be levied for the Defence of the whole? And farther, when the Requisition was made to your Honour, by the General, of raising a Number of Men for His Majesty’s Service in your Province, were not the three lower Counties understood to be included?7 Your Honour has since met, and exchanged Compliments with the Assembly of those Counties, without making (as far as we have heard) the least Demand of them. Is it “Justice to the good People of this Province,” to saddle them with all the Expence of defending that Government, with all the Proprietary Property contained in it, and not call upon it for the least Assistance, while we are, and shall so long be, loaded with the heavy Debt the Wars have occasioned? The Troops raised here will perhaps all be marched to the Westward, in His Majesty’s Service: In which Case, at least, we cannot but think it reasonable to have expected a Proportion of Forces from that Government, to assist in the Protection of our Frontier.
Your Honour’s Message concludes with recommending to us (as if we had hitherto neglected it) the raising Supplies for the King’s Service, the Defence of the Frontiers, and Discharge of the public Debt. Which obliges us to remark, that within a few Months we have sent up to your Honour three Bills for those Purposes,8 two of which have been rejected, because they required a fair and equal Taxation of the Proprietary with other Estates, for their common Defence. And we may add that, in our Zeal for the publick Service, we have departed from the ancient Forms of Parliamentary Proceeding, and waved very important Rights, which, under a more equitable Government, we should not have been constrained to; and such a Government we now hope is not far distant, and that an End will thereby be put to these disagreeable and mischievous Proprietary Contentions, and the People of this much injured Province restored to their Privileges, which they have long been deprived of; Proprietary Will and Pleasure, expressed in their Instructions, being now our only Law, which, through public Necessities, and the Distresses of War, we have been and are compelled to obey.
Signed by Order of the House,
Benjamin Franklin, Speaker.9
9. Pa. Col. Recs., IX, 183–4; Votes, 1763–64, p. 87.
1. Votes, 1763–64, pp. 87–8.
2. Votes, 1763–64, pp. 77–9, 86, 89, 91, and above, p. 204. It is uncertain whether BF participated with the others on the committee in the drafting of this message after he became speaker. The long paragraph dealing with the hearing before the Privy Council Committee and defending the Assembly agents and their counsel on the matter of ambiguity in phraseology must at least have been based on his comments to the other members of the Assembly committee.
3. For those hearings and the reports based on them, see above, IX, 125–73, 196–211.
4. Interpretation of the third article, which stipulated that the Proprietors” ungranted lands in boroughs and towns should be rated as if they were located uncultivated lands, depended almost entirely on the interpretation of the second article, which dealt with such lands in general.
5. The Assembly agents” solicitor engaged a Mr. Cooke to take shorthand notes of the proceedings before the Privy Council Committee and paid him ten guineas for his services. Above, IX, 24, 197. BF apparently delivered a transcript of these notes to the Assembly but it cannot now be found.
6. The Assembly’s verbal messages of March 19 and 20 and written message of March 22; Penn’s verbal messages of March 20 and 21 and written message of March 23; above, pp. 112–17.
7. Sir Jeffery Amherst’s letter to Governor Hamilton of Nov. 5, 1763, which Penn laid before the Assembly on December 20, said in one paragraph: “I must apply to the Province of Pennsylvania, and Colony of Virginia, for their Assistance on the Occasion,” and in the next paragraph: “The Proportion I must demand from your Province is One Thousand Men, exclusive of Commissioned Officers.” Votes, 1763–64, p. 13. The Delaware counties with their separate Assembly are not specifically mentioned in the letter, nor is the colony of Maryland, parts of which were even more exposed.
8. A £50,000 bill on February 24, a first £55,000 bill on March 14, and a second £55,000 bill on May 22. The last of these, amended on May 29, was the one Penn finally accepted on the 30th. Votes, 1763–64, pp. 52, 60, 81, 88.
9. The controversy over the Supply Act had a strange sequel. On May 30, 1764, the very day it became law, Henry Wilmot, the Proprietors” solicitor, wrote Governor Penn that he, Wilmot, had advised the Proprietors to yield the disputed point of the taxation of their uncultivated, located lands. He believed, he said, that the governor’s interpretation was the one originally intended, but he was “not certain that after this length of time, when matters are cool, at least in this country, if this act alone were now to be debated, unaccompanied with any other flagrant acts of the assembly, that the construction might not be put upon [the stipulation in the order in council of Sept. 2, 1760] contended for by the assembly.” The Proprietors had agreed with him; if the act had already passed in the form the governor had demanded, Penn was to direct that it was to be executed according to the Assembly’s construction of the original stipulation. Statutes at Large, Pa., VI, 585–8. Thomas and Richard Penn enclosed this letter with one of their own to the governor, June 1, 1764, confirming the decision, since the matter was one “that regards our own property only.” They added that they supposed “the dispute on the mode of taxation must now be entirely settled.” In subsequent letters to the governor and other supporters in Pa. during the summer and fall, Thomas Penn emphasized that he and his brother had given in, not through fear of an application to the Crown for a change in government, but because “there does appear some equity” in the Assembly’s argument. He admitted to William Smith in October that “at this distance of time, no Person here that considers [the stipulation] looks upon it in any other light than that the Assembly contended for.” Thomas and Richard Penn to John Penn, June 1; Thomas Penn to John Penn, June 8; to Benjamin Chew, June 8; to James Hamilton, June 13; to William Smith, Oct. 12, 1764, Penn Papers, Hist. Soc. Pa.
Governor Penn must have received notice of the Proprietors” decision at least by August 13, when William Allen arrived from England, and he acknowledged his new orders on September 1. He expressed regret that they had not come before he passed the bill, “as I might have had it in my power to have prevented the flame that has since broke out.” Yet, with what must be recognized as political shrewdness but something less than candor to the public, he did nothing to quench the fire during the last month of the election campaign. As he explained to his uncle, he could not “help thinking it would be of bad consequence to let the Contents [of the letters from Wilmot and the Proprietors] be known before the new Assembly is chosen. Mr. Chew and Mr. Hamilton are of the same opinion.” To Thomas Penn, Sept. 1, 1764, Penn Papers, Hist. Soc. Pa. So the bitter campaign was fought out with no hint from the governor that his superiors in England had reversed his position on the issue that had precipitated the crisis. Although word of the decision in England became known in October, Governor Penn preserved official silence until Jan. 17, 1765, when he addressed a circular letter to the commissioners of appeal informing them of the Proprietors” decision and asking them and the county commissioners and local assessors to interpret the Supply Act in the way the Assembly had wanted from the start. On January 26, the commissioners and assessors for Philadelphia Co. reported to him that they were bound by the express terms of the law as passed and could not comply with Penn’s request without the passage of a special act for the purpose. Thereupon the governor was forced to the mortifying procedure of sending the Assembly a formal message, Jan. 30, 1765, announcing the Proprietors” reversal of his steadfastly held position of the previous year and proposing a supplemental bill to amend the Supply Act accordingly. Pa. Col. Recs., IX, 237, 240–1; 8 Pa. Arch., VII, 1730. The Assembly passed the proposed bill February 7; Penn returned it with an amendment relating in an unspecified way to the taxation of the Proprietors” town lots; neither side would yield to the other; and the bill failed of passage. Pa. Col. Recs., IX, 244–5; 8 Pa. Arch., VII, 5731, 5735, 5738, 5739, 5741–2. Twice thereafter, in September 1766 and January 1774, the Supply Act of 1764 was successfully amended in other particulars, but never in the controversial matter of the assessment and taxation of proprietary lands.