On July 4, 1760, Francis Eyre, Robert Charles and Franklin’s solicitor, drew up and presented on behalf of his clients a petition to the King in Council asking to be heard in opposition to the Board of Trade report on the nineteen Pennsylvania acts.6 Then Eyre prepared “long Observations on the Report being 8 close Brief Sheets, in Answer to the several Charges in the Report, to serve by way of Brief,” and during the following weeks held several late evening conferences with the barristers de Grey and Jackson on how to present the Assembly’s case at the forthcoming hearing.7

Meanwhile the Privy Council Committee for Plantation Affairs had begun consideration of the Board’s report. On July 15 the Committee referred the report to the attorney and solicitor general for an opinion on the following question: In case any of these acts contained clauses “not consonant to reason,” or repugnant or contrary to the laws of England, or inconsistent with the King’s sovereignty or prerogative, or contrary to the allegiance due from the Proprietors or inhabitants, or not warranted by the powers granted by the charter for making laws, might the King repeal or annul such clauses without disallowing “other unexceptionable parts” of these acts; and if so, would such repeal be effective immediately?8 The Committee did not tell the law officers which acts they had specifically in mind, but one, at least, must have been the Re-emitting Act of June 20, 1759, which the Board of Trade had so severely criticized on the score of “tacking.”9

The attorney and solicitor general reported back, August 19, that in general under the Pennsylvania charter the Crown must either accept or reject the whole of an act, although there might be cases in which particular provisions of an act “may be void ab initio,” as when an act of Parliament was contravened or the “legal right of a private subject bound without his consent.” Furthermore, the law officers seemed to believe, though they did not fully commit themselves on the point, that if matters “totally foreign and as much unconnected with one another as any two of the nineteen acts now under consideration” were joined in one act, the King might disallow that part of the act relating to one of the matters it contained.1 Neither the Proprietors nor the Assembly agents were pleased that the Council Committee had raised this question of a partial disallowance,2 but the opinion of Pratt and Yorke did not lead to any such action by the Council in the pending controversy.

The hearing before the Privy Council Committee took place at the Council Office in the Cockpit on August 27 (from noon to five o’clock, according to Eyre) and on the 28th. As at the Board of Trade sessions, Attorney General Pratt and Solicitor General Yorke appeared for the Proprietors and William de Grey and Richard Jackson for the agents, Franklin and Charles. In addition, Eyre engaged a Mr. Cooke to take shorthand notes of the proceedings, but unfortunately neither these notes nor any other detailed records of the hearing have been found.3 Writing in his autobiography nearly thirty years later Franklin repeated “the purport of what I remember as urg’d by both Sides” regarding the £100,000 Supply Act, and described his private conference with Lord Mansfield (quoted in a footnote below) which led to a sort of compromise on this act.4 For the rest, the report of the Committee to the plenary session of the King in Council which is contained in the document printed here provides the best indication of what transpired during those two days of debate in the Cockpit.

Later writers have disagreed as to the extent to which the final determination of the Privy Council was a great victory or a resounding defeat for Franklin.5 Impartially considered, the truth seems to lie, as usual, somewhere between these extremes. Of the eleven acts opposed by the Proprietors, six were disallowed; one (the Supply Act), also opposed by the Board of Trade, was allowed to stand on a compromise basis, and so was indirectly confirmed when September 13 arrived, six months after its first presentation to the Privy Council; one (the Agency Act), recommended for approval by the Board of Trade, had already been indirectly confirmed on August 16 by the lapse of time; and the remaining three were confirmed by the Privy Council on the recommendation of the Board of Trade. Thus on a strictly numerical basis the Proprietors won the disallowances they sought for six of the eleven laws and Franklin won acceptance for the other five.

A scorecard, however, is not the most useful device for recording the results of this sort of contest. The acts under dispute were not all of equal importance. By any reasonable scale of values it would be difficult to conclude, for example, that the disallowance of the Act Suppressing Lotteries and Plays was a major political defeat for Franklin and the Assembly, or that the confirmation of the Act to Prevent the Exportation of Bad Staves was a glorious victory.6 If we may judge by the substance of the acts themselves, the known attitudes of the contending parties towards them, and the relative attention given each at the hearings and in the Board of Trade report, the most important of the measures, in a political and constitutional sense, should be ranked in something like this order: the £100,000 Supply Act, the Re-emitting Act, the Agency Act, the Act for Recording Warrants and Surveys, and the Supplementary Act for Establishing Courts of Judicature. The Penns succeeded in getting disallowed the Re-emitting Act and those concerning warrants and surveys and the judicial system; Franklin got what he and the Assembly wanted with regard to the Agency Act; the Supply Act, certainly the most important of all, resulted in a compromise which requires further comment.

The issue of the taxation of proprietary estates, repeatedly in dispute since the summer of 1755, was the central point of contention in the Supply Act of 1759, just as it had been by far the most important issue that had sent Franklin to England in 1757. In the course of the struggle the Proprietors had at first stood firmly against any sort of concession to the Assembly view that they or their American estates ought to share in the costs of provincial defense. In the autumn of 1755, after news of Braddock’s disastrous defeat reached England, they yielded to pressure at home to the extent of making a voluntary contribution of £5000 to be paid from the arrears of quitrents as these should be collected in Pennsylvania.7 Although Thomas Penn privately admitted to his supporters in the colony during the summer of 1756 that the Proprietors might permit a very limited taxation of their personal estates, the instructions to Governor Denny, shown to the Assembly in September 1756, made no such concession. In fact, they went so far as to express intense displeasure that the Assembly should “pretend, by any Act of theirs, to charge the Proprietary Estate in the Province with the Burden of any Taxes.”8 Then in November 1758, in answer to Franklin’s representations in his “Heads of Complaint” and on the advice of the attorney and solicitor general, they stated in somewhat vague terms that they were willing “to have the annual Income of their Estate enquired into” and were “ready to contribute whatever the said Sum [of £5000] shall fall short of what has been laid on the Inhabitants in general, for every Part of their Estate, that is in its Nature taxable.”9 When Franklin asked for an explicit statement as to how they proposed the inquiry to be conducted, whether they would consent to a law for the purpose, what parts of their estate they considered taxable, and what other arrangements they had in mind, they refused to give him a direct reply.1 They had, however, withdrawn some distance from their original position of a total refusal to be taxed.

The Supply Act of 1759 was the first measure involving a land tax to be passed after the Assembly received word of this concession. While the Board of Trade hearings were in progress Penn learned that Governor Hamilton has passed the £100,000 Supply Act of April 12, 1760, which contained essentially the same provisions as that of 1759 then under consideration. By this time the Proprietors had come to realize that they must submit to having their estates taxed, whether they were willing or not, and Penn’s chief concern had become that it should be done fairly. Writing to the governor, June 6, he declared: “I desire nothing more than to have such parts of the estates of my Family taxed, as are to be taxed, on the same calculation with the estates of other people. It would be knight errantry to desire a more exact calculation, in order to pay more in proportion, and to pay less I should think extreamly scandalous.”2 Such a statement represents a major retreat from the instructions to Denny four years earlier and even from the answer to the “Heads of Complaint” in November 1758.

The Proprietors considered, as their supporters in the colony had done when the Supply Act of 1759 was passed, that this law was improper because, among other reasons, it was vague as to whether their unlocated as well as their located estates were to be taxed, because the assessments on their properties were to be determined entirely by officials in the appointment of whom they had no share, and because their governor was in effect excluded from a voice in the expenditure of the money raised by the act. First the Board of Trade and now the Privy Council Committee agreed that these objections were valid. In order to avoid a disallowance Franklin and Charles, therefore, pledged that the Assembly would pass an amending act to remove these criticisms. On this basis the Privy Council allowed the law to stand.

The primary issue that had taken Franklin to England was now settled by the highest authority in his and the Assembly’s favor: It was proper that the proprietary estates in Pennsylvania should be taxed, as the Assembly had been insisting for several years. Two questions, however, remained for the future to decide: Would the Assembly honor the pledge Franklin and Charles had given and pass an act amending the law of 1759 in accordance with the six points laid down by the Privy Council? And would the Assembly include these provisions in all future bills imposing taxes on the proprietary estates? Immediately after the Privy Council hearing and before the order in council was issued, Thomas Penn wrote Hamilton that the Assembly agents had been told “of the Solemnity of the Engagement, that no Bill shal ever pass for raising any money that shal not be appropriated in this manner, that if the conditions are not complied with the £100,000 Bill [of April 12, 1760] passed by you shal be immediately repealed, without any reference to the Board of Trade, and Parliament applyed to, to do it and to abolish all their encroachments, on the Constitution they are by Charter intitled to.”3 Penn seemed confident that this was no idle threat. His letters to Pennsylvania during the fall reflect, on the whole, considerable satisfaction with the decision of the Privy Council. Again, unfortunately, Franklin’s letters to Norris about the order in council have disappeared.4

Repeatedly during the next four years Governor Hamilton and his successor John Penn pressed the Assembly for a bill to amend the Supply Act of 1759; the House never categorically refused, but responded each time by saying that, as their examinations of the assessors’ proceedings showed, full justice had been done to the Proprietors in the levying of the tax. Strong complaints about the assessments in Cumberland County during the first year had appeared even before the decision of the Privy Council in 1760,5 but adjustments seem to have been made and such complaints died away. So long as proprietary government remained in Pennsylvania no Assembly consented to a formal amendment of the act of 1759 or its successor of the next year.6 The first question remaining in 1760 was answered in the negative.

In time, however, the representatives gave way on the six points stipulated in the order in council. Bills for a land tax in April 1761 and in March 1762 failed of acceptance by the governor because they did not observe all of these requirements. In March 1762, after the British declaration of war on Spain, and in October 1763, after the outbreak of the Indian uprising called Pontiac’s Conspiracy, the Assembly voted supplies which Hamilton accepted because they used other means than a land tax to fund the bills of credit. Then from January to May 1764, with John Penn, son of Richard and nephew of Thomas, in office as governor, and with Franklin back in his seat in the Assembly, occurred one of the most acrimonious disputes of the whole long series. In view of the grave dangers to the colony from the Indians and the state of domestic turmoil created by the Paxton Boys, the Assembly yielded fully, as a majority of its members believed, to the requirements of the Privy Council’s six points. But the new governor, who had attended the hearings of 1760 as an interested spectator, insisted on what the assemblymen considered a wholly unwarranted and unjust interpretation of one of them. Finally, after Isaac Norris had resigned the speakership on the plea of illness and Franklin had been elected to take his place, the Assembly gave way and amended the bill to incorporate Penn’s interpretation. On May 30, 1764, for the first time, a Pennsylvania governor was able to accept an act which complied fully with the terms laid down by the Privy Council in 1760.7

Early in 1765 Governor Penn had the mortifying experience of reporting to the Assembly that his father and uncle were willing to accept the Assembly’s interpretation of the disputed point after all, and of asking the House to amend the act accordingly.8 The protracted dispute of 1764, however, had inevitably added to the bitterness against the Proprietors which had been building up within the opposition party; two months before the governor’s recantation Franklin had sailed for England to seek the end of proprietary government. Thus the Proprietors finally got the Assembly to obey, literally as well as in general intent, the terms of the order in council, and the second question still open in 1760 was answered in the affirmative, although at the cost of increased antagonism between the Assembly and the Proprietors.

In the final analysis, then, the Assembly gained full recognition of the right to tax the proprietary estates, and the Penns won legislative safeguards of the principle that they should not be discriminated against in future taxation. Neither side can be said to have achieved a complete victory on this major point of dispute. The colony as a whole, however, benefited most of all because the matter of taxing the proprietary estates, a barrier to effective government since 1755, was never again a central issue of Pennsylvania politics.