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Pennsylvania Assembly: Reply to the Governor, 8 August 1755

Pennsylvania Assembly: Reply to the Governor

Printed in Votes and Proceedings of the House of Representatives, 1754–1755 (Philadelphia, 1755), pp. 123–6.

Governor Morris responded on August 6 to the Assembly’s message of the day before, and the Assembly appointed a committee of eight, including Franklin and four other members of the last committee, to prepare a reply. It was reported and approved the next day and sent to the governor on the morning of August 8, together with the bill for £50,000, which the Assembly returned to him with a request for a prompt decision, they “being anxious to get through the Business before them as soon as possible.”2

[August 8, 1755]

May it please the Governor,

We have considered the Reasons the Governor has been pleased to give, in his Message of the Sixth Instant, for exempting the Proprietaries Estate in the proposed Tax: And as they do not appear to us sufficient, we beg Leave to offer him our Sentiments thereon in the following Remarks.

The Governor finds in his Commission a Proviso, “That nothing therein contained shall impower him to consent to any Act whereby the Estate of the Proprietaries may be hurt or encumbered;” and this he looks upon as the highest Prohibition to him from passing the Bill proposed. But the Intention of the Bill, may it please the Governor, is not to hurt or encumber, but to free from Encumbrance the Estate of the Proprietaries, which cannot, in our Opinion, have a worse Encumbrance, than the Neighbourhood of so mischievous an Enemy, who, as we have frequently been informed by the Governor, have taken actual Possession of some Part, and lay Claim to a much greater Part of their Country. The Estates of the People are all on this Side the Mountains; they are as yet neither invaded nor claimed by the French. As Representatives of the People we think it as much our bounden Duty to do nothing that may hurt or encumber the Estates of our Constituents, as the Governor can possibly think it his Duty with regard to the Proprietary Estate; yet we never conceived that giving a Part to save the Whole, and not only to save it, but to render it of double or treble Value (which must be the Case with the Proprietary Lands) could properly be called hurting or encumbering an Estate. And if the Governor really thought that taxing the Estates of the People on this Occasion would be a Hurt to them, and not a Benefit, we imagine he ought, in Duty, to refuse his Assent to that Part of the Bill as well as the other, and for the very same Reason. We for our Parts think differently, and therefore lay the Tax as chearfully on our own Estates as on those of our Constituents. We know their Loyalty to their King and Love to their Country is equal to ours; we do not in the least doubt their Approbation of our Conduct; and we would willingly hope the Governor might, on such an Occasion, as reasonably expect the same Approbation from the Proprietaries.

For there is, may it please the Governor, in the same Proviso of the Proprietary Commission, an absolute Prohibition to the Governor, “to sett, lett, lease out, grant, demise or dispose of any Lands, Tenements, &c. or to intermeddle or concern himself therewith, or with any Part of the Property thereof;” yet he is pleased to say, “he knows the Love and Affection of the Proprietaries for their Country to be such, that if they were on the Spot, they would do any Thing in their Power for its Preservation and Safety; and therefore he, on their Behalf, proposes to give Lands West of the Allegheny Mountains without any Purchase Money, and free from the Payment of Quitrents for Fifteen Years to come.” It cannot but seem strange to us, that a Tax on Part of an Estate for two Years should be thought to hurt it, more than giving Six or Seven Hundred Thousand Acres of it away; or that the Governor, notwithstanding so express a Prohibition, should think himself more at Liberty in this Case than in the other. If the Proprietaries will approve in the latter Case, why not in the former? And if the Grant of Lands, contrary to such Prohibition, would be valid, why not the Passing of the Bill for a Tax? These are Questions that we cannot solve, without a more particular Consideration of the proposed Grant of Lands West of the Allegheny Mountains, than we should have thought necessary, if it had not been repeatedly mentioned to us by the Governor, apparently with a View to make the Taxing of the Proprietary Estate on this Occasion appear less reasonable. We are sorry therefore that we are obliged to observe, that the Proposal is made in such Terms as that it may be fully complied with, and yet nothing in Reality be granted. First, because Lands West of the Allegheny Mountains differ greatly in their Quality, and though some are exceeding good, there are many Hundred Thousand Acres that are not worth accepting; and good Land is not so much as mentioned in the Proposal. Secondly, because the best Lands there, are not better than Lands of Virginia in the same Neighbourhood, which may be had without Purchase Money, at Two Shillings Sterling Quitrent, and none to be paid for Fifteen Years. But the common Quitrent in this Province is Four Shillings and Two-pence Sterling. And therefore an Offer even of the best Lands in those Parts on that Quitrent would be neither more nor less than this, That for the Encouragement of such as shall, with the Hazard of their Lives, recover the Proprietaries Country from the Enemy, he will graciously sell them a Part of the Lands so recovered, at twice the Price demanded by his Neighbour. An Offer on the Proprietary’s Behalf, that may indeed be safely made, notwithstanding his Prohibition, and without the least Danger of offending him. If the Proprietary, to encourage the Settlement of the Western Frontier of his Province, and to form a Barrier for the rest, will, bona Fide, grant good Lands on reasonable Terms; we doubt not but the Assembly will give other equivalent Encouragements to the Settlers, in Provisions, Carriages, Utensils of Husbandry, Cattle, and the like; but the Governor’s Power to make such Grants in their Behalf, at present not appearing to us, we must leave that Matter to future Consideration.

We are however clear, that the Governor has full Power to pass the Bill in Question, any Prohibition, were it ever so express from the Proprietaries, notwithstanding. First, because no Prohibition of the Proprietaries can lessen or take away from the Lieutenant-Governor any Power such Lieutenant is vested with by the Royal Charter. Secondly, For that in the Royal Charter, Section IV. the King, for himself, his Heirs and Successors, hath “granted free, full, and absolute Power,” (not only to the Proprietary and his Heirs, but) “to his and their Deputies and Lieutenants, for the good and happy Government of the said Country, to ordain, make and enact, and under his and their Seals to publish, any Laws whatsoever, for the Raising of Money for publick Uses, or for any End appertaining unto the publick State, Peace or Safety of the said Country, according unto their best Discretion, by and with the Advice, Assent and Approbation of the Freemen of the said Country, their Delegates or Deputies.” And thirdly, because any Prohibition from the Proprietaries, restraining the Legislative Powers granted by the Royal Charter, is so far from being able to render void a Law made notwithstanding such Prohibition, that the Prohibition is in itself void, and a meer Nullity. This is not only consistent with plain Reason, but has been solemnly considered and determined in the former Proprietary’s own Council; his Son and Heir, his faithful Secretary, the learned Judge Mompesson, and several others, distinguished for their Abilities, being both present and concurring, as will, we suppose, appear on their Minutes, of which we beg Leave to give the following Extract.

The Clause in Colonel Evans’s Commission, viz. “Saving always to me and my Heirs, our final Assent to all such Bills as thou shalt pass into Laws in the said Government,” &c.

“In Answer to a Message from the Assembly, requesting the Council to give their Opinion in Writing under their Hands, concerning the Saving or Exception in the Proprietary William Penn’s Commission to the present Lieutenant-Governor, to wit, whether the said Saving is void in itself. And whether those Bills which the present Lieutenant-Governor shall think fit to pass into Laws, and cause the said Proprietary’s Great Seal to be affixed thereunto, can afterwards be vacated or annulled by the said Proprietary, without Assent of the Assembly of this Province?

“We of the Council, whose Names are hereunto subscribed, are of Opinion, that the said Saving is void in itself; and that those Bills which the present Lieutenant-Governor shall think fit to pass into Laws, and cause the said Proprietary’s Great Seal to be affixed thereunto, cannot afterwards be vacated or annulled by the Proprietary, without Assent of the Assembly of this Province.”

William Penn, junior, Griffith Owen,
Roger Mompesson, Caleb Pusey,
Edward Shippen, William Trent,
John Guest, Richard Hill,
William Clark, James Logan.

Having thus, we hope, effectually removed the Governor’s greatest Objection to the Passing of our Bill, we may be shorter in our Observations on the four other Reasons he is pleased to give us.

To the first we shall only say, That we do not propose to tax the Proprietary as Governor, but as a Fellow Subject, a Landholder and Possessor of an Estate in Pennsylvania; an Estate that will be more benefited by a proper Application of the Tax, than any other Estate in the Province. The Proprietary, may it please the Governor, does not govern us. The Province supports a Lieutenant to do that Duty for him, by a large Revenue arising from Licences, and other Fees and Perquisites. But if the Proprietary actually governed us, and had a Support allowed him on that Account, we should not therefore think it less reasonable to tax him as a Landholder, for the Security of that Land. The Representatives of the People have also some Support as a Part of the Government, by the Wages they are allowed for their Service in Assembly; would the Governor think this a good Reason, that as Owners of Estates they should be exempt from Taxes? Can the Proprietary, as Governor, have, from the Nature of his Office, more of this pretended Right of Exemption from Taxes than the King himself? Are not the Tenants of the King’s Lands (who by every Land Tax Act of Parliament are to pay the Poundage) impowered to deduct the same out of their Rent? And are not the Receivers of his Majesty’s Rents obliged, under severe Penalties, to allow of such Deduction? But this is not the first Instance by many, in which Proprietors and Governors of petty Colonies have assumed to themselves greater Powers, Privileges, Immunities, and Prerogatives, than were ever claimed by their Royal Master on the Imperial Throne of all his extensive Dominions.

On the second it may be sufficient to observe, that the positive Law of this Province, hinted at by the Governor as exempting the Proprietaries Estates from Taxes, is no other than the Law for raising County Rates and Levies, which are in the same Act appropriated to Purposes for which the Proprietaries could not reasonably be charged; such as the Payment of Assemblymens Wages, and of the Rewards for killing of Wolves, Crows, Foxes, with other Matters more immediately for the Peoples Benefit; it is not, as the Governor would insinuate, a general constitutional Law of the Province, made to enforce a natural Right, but is confined to County Affairs, and has no Relation to Provincial Taxes, especially to such as are intended for the Benefit and Advantage of the Proprietary Estate more than of any other Estate in the Province; which will be evident to the Governor, on his perusing it with the smallest Degree of Attention. ’Tis true it is, as the Governor calls it, a positive Law, so far as it extends; but to apply it to the present Case, seems inconsistent with both Equity and Reason. We have likewise a positive Law, that the Peoples Representatives shall dispose of the Peoples Money, and this seems to us consistent generally with Reason and natural Right; but does the Governor think that, because it is a positive Law, it ought to be extended to all Cases in Government? If so, we humbly conceive he would have proposed some other Amendments to the Bill, and different from those he has thought fit to send us: For we, considering the Intention of the Grant, have allowed him a Share in the Disposition of the Fifty Thousand Pounds; and he proposes, by his last Amendment, to have a Share likewise in the Disposition of the Overplus, if any.

On the third Reason, we would only beg Leave to ask, Whether, supposing the Proprietary Estate to be taxed, it would be equitable that he should have a Negative in the Choice of the Assessors; since that would give him Half the Choice, tho’ he were to pay perhaps not a Hundredth Part of the Tax? In our Estimation, and we think we are not mistaken, he may have Friends, Officers and other Dependents enow in every County, to vote as much in his Behalf, or more, than his Share of the Tax can possibly amount to. But if the Proprietary shrinks at the Injustice of being taxed, where he has no Choice in the Assessors, with what Face of Justice can he desire and insist on having Half the Power of disposing of the Money levied, to which he would contribute not a single Farthing? By the Words the Governor chuses to express the Power of the Assessors, viz. “Taxing the Proprietaries Estate at Discretion,” one would think their Power unlimited, and the Proprietary left at their Mercy; but in the Valuation of Estates, they are confined by the Bill within certain moderate Bounds, are enjoined, and sworn or solemnly affirmed “to assess themselves, and all others, equally and impartially, and to spare no Person for Favour or Affection, nor grieve any for Hatred or Ill-will;” which we think gives the Proprietary as good Security for Equity and Justice as any Subject in the King’s Dominions.

As to the Governor’s fourth Reason, deduced from the Usage in this and the other Proprietary Governments, we think Usage and Custom, against Reason and Justice, ought to have but little Weight. But though it may have been the Usage in this Government, and perhaps in others, to exempt the Proprietary Estate from Taxes in Cases where their Estates could not by the Application of such Taxes be any way benefited, that Usage can, as we conceive, have no Relation to the present Case, which, as we have shewn, is of a widely different Nature. Nor, if the Governor’s Rule from Usage could be allowed, viz. That the Lands or Estates of Proprietaries, exercising Government by themselves or their Lieutenants, ought to be exempt from Taxes, would it operate in Favour of the Estates of Proprietaries who not only do not exercise Government by themselves, but would restrain their Lieutenants in the Exercise of the just Powers they are vested with by the Royal Charter.

On the Whole, we beg the Governor would again calmly and seriously consider our Bill, to which End we once more send it up to him. We know that without his Assent the Money cannot be raised, nor the good Ends so earnestly desired and expected from it be obtained, and we fear his Resolution to refuse it. But we entreat him to reflect with what Reluctance a People born and bred in Freedom, and accustomed to equitable Laws, must undergo the Weight of this uncommon Tax, and even expose their Persons for the Defence of his Estate, who by Virtue of his Power only, and without even a Colour of Right, should refuse to bear the least Share of the Burthen, though to receive so great a Benefit! With what Spirit can they exert themselves in his Cause, who will not pay the smallest Part of their grievous Expences? How odious must it be to a sensible manly People, to find him who ought to be their Father and Protector, taking Advantage of Publick Calamity and Distress, and their Tenderness for their bleeding Country, to force down their Throats Laws of Imposition, abhorrent to common Justice and common Reason! Why will the Governor make himself the hateful Instrument of reducing a free People to the abject State of Vassalage; of depriving us of those Liberties, which have given Reputation to our Country throughout the World, and drawn Inhabitants from the remotest Parts of Europe to enjoy them? Liberties not only granted us of Favour, but of Right; Liberties which in Effect we have bought and paid for, since we have not only performed the Conditions on which they were granted, but have actually given higher Prices for our Lands on their Account; so that the Proprietary Family have been doubly paid for them, in the Value of the Lands, and in the Increase of Rents with Increase of People: Let not our Affections be torn in this Manner from a Family we have long loved and honoured! Let that novel Doctrine, hatched by their mistaken Friends, that Privileges granted to promote the Settlement of a Country, are to be abridged when the Settlement is obtained, iniquitous as it is, be detested as it deserves, and banished from all our publick Councils; and let the Harmony, so essential to the Welfare of both Governors and Governed, be once again restored; since it can never be more necessary to our Affairs than in their present melancholy Situation. We hope the Governor will excuse some Appearance of Warmth, in a Cause of all others in the World the most interesting, and believe us to be, with all possible Respect and Duty to the Proprietary Family and to himself, his and their sincere Friends and Well-wishers.3

[Note numbering follows the Franklin Papers source.]

2Votes, 1754–55, pp. 122, 123, 126–7.

3Morris replied, August 9, that he would answer their long message “as soon as I have fully weighed the several Parts of it.” Meanwhile, the King’s troops had been defeated, the French had a large body of regular forces in America and planned to subjugate the continent, and the inhabitants of several counties had declared their willingness to defend themselves; so he called upon the Assembly “in his Majesty’s Name” to establish a militia as he had often recommended them to do. Votes, 1754–55, pp. 127–8.

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