Ferdinand John Paris: Answer to Heads of Complaint; Thomas and Richard Penn: Message to the Assembly, 27, 28 November 1758
Ferdinand John Paris: Answer to Heads of Complaint; Thomas and Richard Penn: Message to the Assembly
Printed in Votes and Proceedings of the House of Representatives, 1758–1759, pp. 28–31; copy: Maryland Archives; also printed in Minutes of the Provincial Council of Pennsylvania (Pa. Col. Recs.), VIII, 276–81.9
On Aug. 20, 1757, Franklin presented to Thomas and Richard Penn the “Heads of Complaint,” a summary of the Pennsylvania Assembly’s major grievances against the Proprietors.1 The Penns refused to answer it, however, until they received the opinions of the attorney general and solicitor general upon it. They submitted the paper, together with a series of queries, to the law officers early in November 1757, but it took a “whole Year (wanting eight Days only)” to get both opinions.2 On Nov. 27, 1758, the Penns’ agent, Ferdinand Paris, drew up an answer for the Proprietors, based in part on the law officers’ opinions, and sent it to Franklin. It is printed below as Number I. It made one major concession, as the solicitor general had advised: the Proprietors were now willing “to have the annual Income of their Estate enquired into” and to contribute their fair share, but no more than that, to the public service. The next day, the Penns signed a message to the Assembly in which, besides covering some of the same ground as Paris had, they criticized the procedures the Assembly and its representatives in England had used in presenting these grievances, misrepresented the circumstances under which Franklin had prepared the “Heads of Complaint,” abused him personally, and indicated their unwillingness to deal further with him. This message is printed below as Number II. There is no evidence that the Proprietors sent Franklin a copy.
On the same day, November 28, Franklin wrote the Penns asking for clarification of certain points in the “Answer” of the 27th (see below, pp. 186–7), and the exchange closed with a message Paris delivered personally “a few Days after” (below, pp. 193–4). On December 8 and 9 Thomas Penn wrote letters to his leading supporters in Pennsylvania, Richard Peters, Benjamin Chew, and William Allen (quoted or cited in appropriate footnotes) and sent them copies of most, if not all, of the documents in the case, of which the two printed here were to be given to the Assembly. Franklin’s long letter to Isaac Norris, Jan. 19, 1759 (below, pp. 232–7), also enclosing documents, related his side of the story.
I
Answer to Heads of Complaint.
London, November 27. 1758.
The Proprietaries of Pennsylvania have well considered the Paper laid before them, called “Heads of Complaint.” They have also taken the best Advice they could procure upon the same; and some Answer would have been given long since, had not one of the Agents prevented the Proprietaries from obtaining their Counsel’s Opinion and Advice thereon.3
The Proprietaries could have wished, in order to that Harmony which they most sincerely desire, that the House of Representatives had sent some Address, Representation, or Memorial, pointing out clearly and distinctly any Grievances they thought themselves under; and that they had given as full Powers, as the Nature of such a Case would admit, to some Person of Candour,4 to enter into the Detail and full Discussion of those several Matters, which seem to be alluded to in the Heads of Complaint.
Had those Things been done, which the Proprietaries conceive to be the common and ordinary Methods of proceeding in such Cases, many Points might have been speedily adjusted to mutual Satisfaction, and particularly all such, wherein the Questions arise between the Proprietaries personally, and the House of Representatives; in which Instances the House may assuredly rely on the utmost Indulgences that can, with Justice or Reason, be desired.
As to others, wherein the Rights and Prerogatives of the Crown, intrusted to the Proprietaries, may be affected, it is hoped the House would not, for their own Sakes, desire the Proprietaries to attempt to give up any of those.
It admits of Observation, that the Heads of Complaint begin by transposing some Parts of the Royal Charter, as if that had, in explicit Terms, prescribed the Discretion of the Assembly to be made use of in making Laws; the Proprietaries desire to be perfectly understood in this Matter; they do not so much as imagine, but that the Representatives of the People will, and must use a Discretion in choosing, whether they will, or will not, give their Advice and Assent to any Law; but the Charter (when read in its own Language) gives the Power to make Laws to the Proprietary, and his Deputy or Lieutenant, according to their best Discretions (always with the Advice and Assent of the Representatives) and does not run in the Terms set forth in the Paper of Complaint.5
Persons not well inclined to Governors, or Government, may indeed desire that all Matters whatsoever should be left to the Discretion of a Lieutenant, on the Spot, whom the House might supply, or not, just as he should yield up that Discretion of his, more or less, to them;6 but as long as Instructions are constantly given to every Person intrusted with the Government of any British Colony (and Bonds also required from every such Person for Observance of such Instructions) as long as Instructions are constantly given to all Persons whatsoever, executing even the regal Government of His Majesty’s Kingdoms during the Royal Absence; as long as these Proprietaries are repeatedly commanded by the Crown, upon the Nomination of each successive Lieutenant-Governor, to give Instructions to such Lieutenant; and as long as a Lieutenant-Governor may, by his Misbehaviour (if left intirely to his Discretion) bring the Proprietaries Estate and Franchises into Danger; so long the Proprietaries must contend to give Instructions to, and take Bonds from, their Lieutenant-Governor.7
The particular Matters wherein a Lieutenant-Governor should be instructed, make a very different Consideration, wherein the Proprietaries, and such Persons authorised as aforesaid, might surely put the same upon a reasonable Footing; the Proprietaries, however, cannot be of Opinion, that their Instructions were such as would have made it impossible to have raised Sums sufficient for the Defence of the Country, in Addition to the Forces sent from Great-Britain, supposing those Sums applied in a proper Manner.8
The Proprietaries conceive, that the last Paragraph of the Complaint is extremely injurious to them, and very unjust,9 as it insinuates, that they would not contribute their Proportion to the Defence of the Province. It is true, they did instruct their Lieutenant-Governor not to assent to any Law, by which their Quit-Rents should be taxed; this they did, because they thought it not proper to submit the Taxing their chief Rents, due to them as Lords of the Fee, to the Representatives of their Tenants; but that there might not be the least Shadow of Pretence for accusing them of Cruelty and Injustice, they ordered Five Thousand Pounds to be paid for the public Service, out of the Arrears of that very Fund;1 and they leave it to the World to judge, whether it was not unjust and cruel in the late Assemblies, to tax them with refusing to contribute, only because it was not done in the Manner the Representatives of the People insisted on having it done: However, to take off all Pretence of Clamour, they are very ready to have the annual Income of their Estate enquired into, and are as ready to contribute whatever the said Sum shall fall short of their Proportion of what has been laid on the Inhabitants in general, for every Part of their Estate, that is in its Nature taxable; but as an Equality is contended for, they do expect, if they have contributed more than their Proportions (which they believe they have very greatly) that the Overplus shall be returned to them; and as the House of Representatives contend for their Right in disposing of their Property, and do not represent the Proprietaries, so the Proprietaries conceive, and are advised, they themselves, and they only, have a Right to judge when, and how, to dispose of their Estates and Properties.2
The Heads of Complaint conclude well with Expressions of a Desire that Harmony may be restored between the several Branches of the Legislature, and the public Service be provided for;3 Propositions most desireable, and which the Proprietaries most willingly embrace with open Arms, and with open Hearts: The Rights and Powers of the Crown, and the executive Part of Government being preserved, and the Proprietaries reserving to themselves the Right of disposing of their Estate, there seems to be no such great Difference in Opinions as to other Matters, but what might be adjusted in a reasonable Manner with cool, temperate Persons, fully authorised for the Purpose: Had such Power been lodged here, it is probable many of the seeming Differences would have been settled; but as the Agent, who delivered the Heads of Complaint, declined the Settling here, of the Draught of one single Bill for raising a Supply, on Account of Want of Power so to do; as he alledged,4 the Proprietaries find themselves obliged to write to the House of Representatives, that in case they are so well and happily disposed, they will forthwith authorise and impower, in as good a Manner as the Case will admit, some Persons of Candour to enter into free Conferences, and adjust those other Matters in the most agreeable Manner;5 in which the Proprietaries assure the Representatives, and all the good People of the Province, they shall meet with the most cordial and affectionate Concurrence of the Proprietaries, as far as can, with Reason, be desired of them.
Ferdinand John Paris,
Agent for the Proprietaries
of Pennsylvania.
II
London, November 28, 1758.
Gentlemen,
In the Month of August, in the last Year, Mr. Franklin delivered to us a Note or Billet, entituled, “Heads of Complaint.” When first delivered, it was a blank Paper, neither dated, signed, or addressed to any Person; but a few Days after he did sign it, and set a Date to it of the Twentieth of August.
It appeared to us to be very short and general, and to allude to sundry Transactions in Pennsylvania, which were to be sought for in your Votes, and without the Aid whereof, it was not possible to guess at the Meaning of Mr. Franklin’s Note.
Whether such a Paper was delivered by him of his own Choice, or by Direction, he best knows; but we believe it is the First of the Kind, on any such great Occasion; and you will give us Leave to acquaint you, that the Importance of the Matter, the Preservation of Order and Decency between the Assembly and us, and the Necessity and Usefulness of a free Intercourse between us and them, seemed to require a very different Representation.6
However, we overlooked that Piece of Disrespect, and applied ourselves to select, from all your public Votes and Transactions, what we judged might be the Intent and Meaning of the said Paper; and as we found the most material Parts thereof consisted of Matters, wherein the Powers of Government, and the Rights and Prerogatives of the Crown (intrusted to us) were concerned, we thought it right, and so acquainted Mr. Franklin, to take the Opinions and Advice of His Majesty’s Attorney and Sollicitor-General thereon, that we might act with the greatest Caution and Security in Matters of such great Importance.
At the Time Mr. Franklin delivered us his Paper, the long Vacation was begun, and the Lawyers gone into the Country, but the first Day they returned to Town, we laid all those Matters before those Gentlemen for their Opinions, which were so long delayed by Means of an Obstruction given by one of your Agents, that we could not obtain the same for a whole Year (wanting eight Days only) after the Papers had been laid before them.
As soon as we had been advised by those Gentlemen, we returned our Answer in Writing, signed by our Agent, to Mr. Franklin, and now send you hereto annexed a Copy of the said Heads of Complaint, and our Answer thereto.
We are always ready to receive Representations from the House of Representatives, on any Matter that requires Redress. As to the legal Rights of Government, or the Powers and Prerogatives of the Crown, we must support them, as a Duty which we owe to the Crown, to the Nation in general, and to the Inhabitants of the Province in particular.
As to those Matters which concern our Property, we have a Right, and are so advised, to prevent any Injury being done thereto, and are not to be deterred from taking the necessary Care therein, by those Misrepresentations of, and unjust Charges against, us, which have been repeatedly printed, and are even glanced at in the Heads of Complaint presented to us,7 as if we had refused to contribute a reasonable Proportion to the Defence of the Country; an Injury the greater, because those who uttered it, knew that we had contributed a very considerable Sum to the Expence of the War, and, in the Opinion of many People, and from all the Information we can procure, more in Proportion than any Person in the Province.
As to any Matters which may relate to yourselves, we are ready to receive the fullest Information, and also to enter into free Conferences on all these several Subjects with any Persons of Candour, whom you shall authorize and impower for that Purpose; which Matter, we the rather mention to you, in regard that we having offered to settle the Draught of a Supply Bill with Mr. Franklin, he excused himself from joining therein, as not having Power to enter into Terms with respect to that one single Measure.
We shall always be open to Representation and Conviction, and we see no Matters remaining, but such as may, by the desirable Methods of free Conferences with Persons of Candour, and empowered for the Purpose, be well settled to mutual Satisfaction on both Sides, and to the Welfare and Happiness of the Province, which we have most affectionately at Heart.
As Mr. Franklin’s Paper contained an Expression of Desire that Harmony might be restored between the several Branches of the Legislature, and we are certain you cannot wish it more ardently than we do, we choose to mention what appears to us to be the readiest, the easiest, and the most desirable Method of attaining that happy End.
Thomas Penn,
Richard Penn.
9. The Md. Arch. MS copy differs in minor details from the text in Votes. It was probably made because the Md. Assembly had a controversy with Lord Baltimore over taxation very similar to that of the Pa. Assembly with the Penns. The text in the Pa. Council minutes has several differences in phraseology from the other two. All three give the Proprietors’ message to the Assembly first and Paris’ Answer to the “Heads of Complaint” last; they are reversed here in order to follow the correct chronological order. The two printed versions also insert BF’s “Heads of Complaint” between the other two papers; it is printed above, VII, 251–2.
1. For the circumstances of the writing, as well as the text, of the “Heads of Complaint,” see above, VII, 248–52.
2. Solicitor General Charles Yorke delivered his opinion on Jan. 13, 1758 (see above, VII, 366 n). It was Attorney General Charles Pratt for whose opinion the Proprietors waited until the first week of November 1758. Thomas Penn to Pa. Council, Nov. 10, 1758, Penn Papers, Hist. Soc. Pa.
3. The agent referred to was Robert Charles. For his Fabian tactics see above, p. 4 n. BF explained his patience with Charles’ strategy to Isaac Norris, Jan. 19, 1759, below p. 233.
4. A hit at BF.
5. In the Royal Charter of Pa., Charles II granted “free, full and absolute power” to William Penn and his heirs and “to all his and their Deputies, and Lieutenants” to make “any Lawes whatsoever … according unto their best discretions, by and with the advice, assent and approbacon of the freemen of the said Countrey.” Pa. Col. Recs., I, 19. In the “Heads of Complaint,” BF began by observing that “the reasonable and necessary Power given to Deputy Governors of Pennsylvania by the Royal Charter, Section 4th. and 5th. of making Laws with the Advice and Consent of the Assembly, for Raising Money for the Safety of the Country and other Publick Uses, ‘according to their best Discretion,’ is taken away by Proprietary Instructions enforced by penal Bonds, and restraining the Deputy from the Use of his best Discretion.” In his letter to Norris, Jan. 19, 1759, BF quite properly observed that Paris’ strictures on his “transposing” some parts of the Royal Charter were “mere Cavilling,” because he “neither meant, nor had Occasion to mean in that Place, anything but what related to the Discretion of the Deputies as restrained by Proprietary Instructions, contrary to the Charter” (below, p. 235). The phraseology of the Royal Charter of 1681 certainly suggests that the initiative in legislation was to rest with the Proprietors or their deputies and that the Assembly had only the right to give or withhold its “advice, assent and approbacon” of measures proposed to it. A comparable formula appeared in the enacting clause of all legislation in England and the colonies, but the power of the initiative had passed in fact to Parliament, and especially to the House of Commons, early in the seventeenth century, and the British government recognized and accepted a similar development in the colonies in 1680. Wallace Notestein, “The Winning of the Initiative by the House of Commons,” British Academy Proc., 1924–25, p. 175; Leonard W. Labaree, Royal Government in America (New Haven, 1930), pp. 219–22, 422, 429.
6. In the “Heads of Complaint” BF had contended that the deputy governor, “being on the Spot,” could “better judge of the Emergency State and Necessity of Affairs” than the Proprietors and that therefore the instructions by which they were bound were unreasonable.
7. In discussing the propriety of instructions, Paris was relying on and, in some cases, paraphrasing the opinion of Solicitor General Yorke, Jan. 13, 1758, Penn Papers, Hist. Soc. Pa.
8. Paris intended that this paragraph should answer the second paragraph of the “Heads of Complaint,” in which BF had contended that the “Modes, Measures, and Times” of raising money prescribed in the governor’s instructions reduced the Assembly “to the Necessity of either losing the Country to the Enemy, or giving up the Liberties of the People, and receiving Law from the Proprietary.”
9. In the third paragraph of “Heads of Complaint” BF charged that instructions were “both unjust and cruel” which forced the governor to refuse consent to tax bills “tho’ ever so necessary for the Defence of the Country, unless the greatest Part of their [the Proprietors’] Estate is exempted from such Tax.”
1. For the Proprietors’ gift of £5000, see above, VI, 257 n. It may not be unfair to note, however, that as Norris reported as late as April 5, 1759, more than three years and four months after word of the gift had reached the governor, some £600 of the total still remained unpaid; see below, p. 304.
2. It was with the intention of divining the meaning of the proposals in the last part of this paragraph that BF wrote the Penns on November 28; see below, pp. 186–8.
3. The final, unnumbered paragraph of “Heads of Complaint” expresses a hope for the speedy redress of the grievances and concludes in the exact words Paris uses here.
4. For BF’s explanation of his “Want of Power” to treat with the Proprietors, see below, pp. 233–4. It is not clear what kind of supply bill to the “Settling” of which he had refused to agree, but he had discussed one with the Penns the last week of January 1758 at some length, so it is likely that the incident Paris refers to here took place then or early in February. See above, VII, 366, 370–1 n, 372–3 n.
5. Yorke had recommended that the Proprietors “turn their Thoughts, to some Plan” to compose the dispute with the Assembly. He had held that it was “agreeable to Reason, and Justice, to tax the Quit Rents,” providing the Assembly consented to an equitable method of assessment.
6. This disingenuous statement of the origin and dubious nature of the “Heads of Complaint” hardly does justice to BF and ignores the fact that he wrote the paper at the Penns’ specific request, as Thomas Penn explained to Peters, Sept. 5, 1757; see above, VII, 250–1.
7. The Penns, echoing Paris, were complaining about paragraph three of the “Heads of Complaint.”