Benjamin Franklin Papers

Order in Council, 2 September 1760

Order in Council

DS (two) and copy: Pennsylvania Historical and Museum Commission5

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.

[Privy Council Seal]

At the Court at Kensington
the 2d: day of September 1760.


The Kings most Excellent Majesty

Arch Bishop of Canterbury Viscount Falmouth
Lord President Viscount Barrington
Duke of Newcastle Lord Berkeley of Stratton
Earl of Cholmondeley Lord Mansfield
Earl of Halifax

Whereas there was this day read at the Board, a Report from the Right Honourable the Lords of the Committee of His Majestys most Honourable Privy Council for Plantation Affairs, upon considering Nineteen Acts passed in the Province of Pensilvania in the years 1758 and 1759, Which Report is dated the 28th: of last month, and is in the words following Vizt:

“Your Majesty having been pleased, by Your Orders in Council of the 16th: of February, and the 13th: of March last, to referr unto this Committee, Nineteen Acts passed in the Province of Pensilvania in the years 1758 and 1759, as likewise a Petition of the Proprietaries of the said Province, complaining of Eleven of the said Acts, and praying to be heard thereupon before they received Your Majestys Royal Confirmation. The Lords of the Committee thought it proper to transmit the said Acts, together with the said Petition, to the Lords Commissioners for Trade and Plantations, to examine into all the said Nineteen Acts, and to hear the Petitioners upon each of the said Acts, against which they had made their Complaint; And the said Lords Commissioners having accordingly examined into the said Acts, and heard Counsel upon the Petition of the said Proprietaries against Eleven of them, as likewise Counsel on behalf of the House of Representatives of the said Province in Support of the said Eleven Acts, the said Lords Commissioners have made their Report upon all the said Acts to this Committee; And it appearing by the said Report, that the said Lords Commissioners were of Opinion, that Seven out of the said Eleven Acts complained of by the said Proprietaries, were proper to be Repealed by Your Majesty, the Agents for the House of Representatives made Application to this Committee, praying to be heard in Support of the said Seven Acts, and having entered into the usual Security, according to the Rules of the Council Board, to be answerable for Costs, in Case it should be judged necessary to require them to pay the same, the Lords of the Committee thought proper to comply with their request, and accordingly on the 27th: of this Instant, and likewise on this day, took the said Nineteen Acts and Report into Consideration, and heard Counsel on behalf of the said Agents in Support of the said Seven Acts, as likewise Counsel on behalf of the said Proprietaries against the same, and do agree humbly to Report to Your Majesty,

“That as to the Six following Acts9 Intituled,

“‘An Act for Re-emitting the Bills of Credit of this Province heretofore Re-emitted on Loan, and for striking the further sum of thirty Six thousand Six hundred and fifty pounds to enable the Trustees to lend Fifty thousand pounds to Colonel John Hunter Agent for the Contractors with the Right Honourable the Lords Commissioners of His Majestys Treasury, for His Majestys Service. (Passed 20: June 1759)’

“‘A Supplement to the Act intituled An Act for Re-emitting the Bills of Credit of this Province heretofore Re-emitted on Loan, and for striking the further sum of thirty Six thousand Six hundred and fifty pounds to enable the Trustees to lend fifty thousand pounds to Colonel John Hunter Agent for the Contractors with the Right Honourable the Lords Commissioners of His Majestys Treasury for His Majestys Service. Passed 29: Septr. 1759)’

“‘An Act for Recording Warrants and Surveys, and for rendering the Real Estates and Property within this Province more Secure. (Passed 7: July 1759)’

“‘An Act for the more effectual Suppressing and preventing Lotteries and Plays. (Passed 20: June 1759).’

“‘A Supplement to the Act intituled An Act for establishing Courts of Judicature in this Province. (Passed 29: Septr. 1759).’

“‘An Act for the Relief of the Heirs, Devisees and Assigns of Persons born out of the Kings Liegeance, who have been Owners of Lands within this Province, and have died unnaturalized. (Passed 20: June 1759)’

“The Lords of the Committee are of Opinion, that it may be adviseable for Your Majesty to adjudge and declare, under Your Privy Seal, all the said Six Acts to be Void.

“That as to the Act Intituled

“‘An Act for granting to His Majesty the Sum of One hundred thousand pounds, and for striking the same in Bills of Credit in the manner hereinafter directed, and for Providing a Fund for sinking the said Bills of Credit, by a tax on all Estates, Real and personal, and taxables within this Province. (Passed 17: April 1759)’

“The Lords of the Committee were of Opinion that the said Act is fundamentally wrong and unjust, and ought to be Repealed, unless the following Alterations and Amendments could be made therein. Vizt:

“1. That the Real Estates to be taxed, be defined with Precision, so as not to include the unsurveyed waste Land belonging to the Proprietaries.1

“2. That the Located uncultivated Lands belonging to the Proprietaries shall not be assessed higher than the lowest Rate at which any located uncultivated Lands belonging to the Inhabitants shall be assessed.2

“3. That all Lands not granted by the Proprietaries within Boroughs and Towns, be deemed located uncultivated Lands and rated accordingly and not as Lots.3

“4. That the Governors Consent and Approbation be made necessary to every issue and Application of the money to be raised by Virtue of such Act.

“5. That Provincial Commissioners be named to hear and determine Appeals brought on the part of the Inhabitants as well as of the Proprietaries.

“6. That the Payments by the Tenants to the Proprietaries of their Rents, shall be according to the terms of their respective Grants, as if such Act had never been passed.

“The Proprietaries Thomas Penn and Richard Penn, and Benjamin Franklin and Robert Charles, Agents for the Province, being acquainted with the Opinion of this Committee, the Proprietaries declared, that for the sake of Peace, and to avoid further Contest, they would instruct their Governor to Assent to an Act for discharging the said Debt of One hundred thousand pounds in the form of the said Act now under Consideration, so altered and amended.

“And the said Agents for the Province, proposed, that in Case this present Act should not be Repealed, they would undertake, that the Assembly will prepare, pass the Assembly, and offer to the Governor, An Act to amend this Act in such manner, as if it had originally been penned according to the Amendments and Alterations above proposed, and will indemnify the Proprietaries from any damage they may sustain by such Act not being so prepared, passed by the Assembly, and offered to the Governor, and have signed such undertaking in the Books of the Council Office in the following words—Vizt.4

We the undersigned Benjamin Franklin and Robert Charles, Agents for the Province of Pensilvania, do hereby consent, that in Case An Act passed in the said Province in April 1759, Intituled ‘An Act for granting to His Majesty the sum of One hundred thousand pounds, and for striking the same in Bills of Credit in the manner hereinafter directed, and for providing a fund for sinking the said Bills of Credit by a Tax on all Estates, Real and Personal, and Taxable within this Province,’ shall not be Repealed by His Majesty in Council, We the said Agents do undertake that the Assembly of Pensilvania will prepare and pass, and offer to the Governor of the said Province of Pensilvania, An Act to amend the aforementioned Act, according to the Amendments proposed in the Report made by the Lords of the Committee of Council this day (upon the said One hundred thousand pound Act, and other Pensilvania Acts) and We will indemnify the Proprietaries from any damage that they may sustain by such Act not being so prepared and passed by the Assembly, and offered to the Governor. Witness Our Hands this 28th: day of August 1760.

“Lest some inconveniencies should arise from the Repeal of the said Act in respect of the good purposes thereof, the Lords of the Committee are humbly of Opinion, that your Majesty may rely upon the undertaking for the Assembly of Pensilvania by their Agents, and permit this Act to stand unrepealed, because the Objections upon which this Committee should have founded their Advice for the Repeal, will certainly be removed in a Way more agreable and convenient to the Province.

    “That as to the Eight following Acts, Intituled

    “‘An Act for the continuance of an Act of Assembly of this Province, intituled, A Supplementary Act to the Act intituled An Act for preventing the exportation of Bread and flour not Merchantable, and for the new Appointment of Officers to put the said Law in Execution (passed 27: Septr: 1758).’

    “‘An Act for the further continuance of An Act of Assembly of this Province intituled A Supplementary Act to the Act for preventing the Exportation of Bread and flour not Merchantable, and for the New Appointment of Officers to put the said Law in Execution (passed 19: Octr. 1759)’

    “‘An Act to prevent the Exportation of bad or Unmerchantable Staves, Heading Boards, and Timber (passed 21st: April 1759)’

    “‘A Supplement to the Act intituled An Act for regulating the Hire of Carriages to be employed in His Majestys Service (passed 20th: Septr. 1758)’

    “‘A Supplement to An Act intituled An Act for preventing Abuses in the Indian Trade, for supplying the Indians, friends and Allies of Great Britain, with Goods at more easy Rates, and for securing and strengthening the Peace and friendship lately concluded with the Indians inhabiting the Northern and Western frontiers of this Province (passed 17: April 1759)’

    “‘A Supplement to the Act intituled An Act for granting to His Majesty a Duty of Tonnage upon Ships and Vessels, and also certain duties upon Wine, Rum, Brandy, and other Spirits, and a Duty upon Sugar, for supporting and maintaining the Provincial Ship of War for protecting the Trade of this Province, and other purposes for His Majestys Service (passed 21st: April 1759.)’

    “‘An Act for regulating the Hire of Carriages to be employed in His Majestys Service (passed 21: April 1759.)’

    “‘An Act to continue An Act intituled An Act for directing the Choice of Inspectors in the Counties of Chester, Lancaster, York, Cumberland, Berks and Northampton (passed 29: September 1759.).’

“The Lords of the Committee do humbly Report to Your Majesty that they have no Objection thereto.

“And the Lords of the Committee do further humbly Report to Your Majesty that as to the Act Intituled,

“‘An Act for appointing an Agent to apply for and receive the Distributive share and proportion which shall be assigned to this Province of the sum of money granted by Parliament to His Majestys Colonies in America (passed 29th: September 1759.).’

“The Lords Commissioners for Trade and Plantations not having Offered any Objection to this Act, it has been permitted to run out Six months since it was first laid before Your Majesty, and by that means it stands confirmed by Virtue of the Proprietaries Charter.5

“And that with regard to the three following Acts intituled

“‘An Act in Addition to an Act intituled An Act for regulating the Hire of Carriages to be employed in His Majestys Service (passed 29: September 1759.)’

“‘An Act for extending several Sections of An Act of Parliament passed in the thirty Second Year of the present Reign, intituled An Act for punishing Mutiny and desertion, and for the better Payment of the Army and their Quarters (passed 21: April 1759)’

“‘An Act for regulating the Officers and Soldiers in the Pay of this Province (Passed 21: April 1759)’

“The Lords of the Committee do humbly Report to Your Majesty, that the said three Acts are expired, and that it will therefore be unnecessary for Your Majesty to give any Orders thereupon.”

His Majesty this day took the said Report into His Royal Consideration, and was pleased, with the advice of His Privy Council, to approve of all that is therein proposed to be done with respect to the said Laws, and having adjudged and declared void the Six Acts first mentioned in the said Report, His Majesty hath thought proper to direct the Lord Privy Seal to prepare and pass under the Privy Seal a proper Instrument, signifying such His Majestys adjudication and declaration of all the said Six Acts to be void.6 And His Majesty doth hereby further Declare, and Order that with respect to the Act for granting to His Majesty the sum of One hundred thousand pounds and for striking the same in Bills of Credit &ca. the same do stand unrepealed; And as to the Eight following Acts, to which the Lords of the Committee have offered no Objection, His Majesty is hereby pleased to signify His Royal Approbation thereof. And the Proprietaries of Pensilvania, their Lieutenant or Deputy Governor, and the Assembly of the said Province, and likewise all others whom it may concern, are to take Notice and Govern themselves accordingly.

W: Blair.7

[Note numbering follows the Franklin Papers source.]

5There are in the Pa. Archives two sealed and signed texts of this order in council: Records of the Provincial Council, Crown Correspondence, 1726–75, nos. 59 and 60. There is also a contemporary copy in Records of the Provincial Council, Provincial Record, 1682–1775 (Minutes of the Provincial Council), Vol. S, pp. 74–8. The version printed here is the original order, Crown Correspondence, no. 60, because no. 59 is slightly mutilated and contains a demonstrable clerical error.

6Eyre’s bill, under date of July 4; see above, p. 24. A careful search among the Unbound Papers in the Privy Council Office has not produced the petition. No copy is known to have survived. For the Board of Trade report, June 24, 1760, see above, pp. 125–73.

7Eyre’s bill, under date of July 4, 12, 14, August 22, 26. Like the petition, the “long Observations” have not been found.

8Acts Privy Coun., Col., IV, 440; also Statutes at Large, Pa., V, 660–1, where the order of reference is printed in full. Thomas Penn told Governor Hamilton, Aug. 22, 1760, that the referral was moved in the Committee by Lord Mansfield. Penn Papers, Hist. Soc. Pa.

9See above, pp. 146–53.

1The opinion is printed in full, Statutes at Large, Pa., V, 735–7.

2The Proprietors conceived that the exercise of such a power “would be very injurious to the Province, as it would enable the Crown to take any money that should be granted, and not apply it for the purpose it was intended, and tho it was very probably intended to secure us, we did not wish to see it brought into practice, unless it was a manifest tack foreign to the design of the Bill.” Penn to Hamilton, Aug. 22, 1760, Penn Papers, Hist. Soc. Pa. Penn had not yet seen the law officers’ opinion when he wrote this. For WF’s comments, which probably reflected the views of his father after getting a copy of the opinion from Eyre, see above, pp. 189–90.

3Undated entry in Eyre’s bill. Cooke received ten guineas for his services. The Assembly had a copy of the pleadings in 1764, taken from the shorthand notes, as a message informed the governor. Votes, 1763–64, p. 90.

4Autobiog. (APS-Yale edit.), pp. 265–6.

5For example, Bernard Faÿ, whose account of the whole affair is factually somewhat inaccurate, directs his attention almost entirely to the £100,000 Supply Act and remarks in summary: “Franklin’s promise [of modifications in the law] remained a scrap of paper, and the meeting of the Privy Council on September 2, 1760, was transformed by his care and skill into a complete victory for the Pennsylvania Assembly. The estates of the Penns were no longer immune from taxation and both the Penns and the King admitted it.” Franklin, The Apostle of Modern Times (Boston, 1929), p. 290. The most recent writer on the subject, William S. Hanna, who displays some anti-Franklin bias in his discussion of the politics of these years, takes the opposite view of the outcome: “On all the major issues Franklin and the Assembly suffered an overwhelming defeat.” Benjamin Franklin and Pennsylvania Politics (Stanford, Calif., 1964), p. 138.

6Penn was displeased, however, at the confirmation of the acts regarding the export of flour and staves, which placed the appointment of inspectors in the hands of the Assembly. He told Benjamin Chew, Oct. 17, 1760, that although the Board of Trade said they did not intend to approve such acts for the future, “I do not see how they can avoid it, after suffering these to pass when so strenuously opposed.” Penn Papers, Hist. Soc. Pa.

7See above, VI, 257 n. At the time of the passage of the Supply Act of 1759, here under consideration, £600 of the £5000 contribution was still unpaid. See above, VIII, 304.

8See above, VI, 515–31, esp. p. 522, and Penn to Peters, July 12, 1756, printed in William R. Shepherd, History of Proprietary Government in Pennsylvania (N.Y., 1896), p. 452 n.

9See above, VIII, 182.

1See above, VIII, 186–8, 193–4.

2Penn to Hamilton, June 6, 1760, Penn Papers, Hist. Soc. Pa.

3Penn to Hamilton, Aug. 30, 1760, Penn Papers, Hist. Soc. Pa.

4Bernard Faÿ makes the following wholly undocumented statement: “As soon as Franklin knew that the law had been approved, he wrote to his political friends in Pennsylvania to let them know that the promise was neither regular nor legal and could not bind them. He advised them to be moderate in their taxation of the Penn grounds and then kept quiet.” Franklin, The Apostle of Modern Times, p. 290. The editors have been unable to find any letter either by or to BF or any other contemporary document to suggest that he ever wrote about the Council’s action in this vein.

5See above, pp. 192–3 n.

6What actually happened to the Supply Act of 1760 remains unclear. On June 6, 1760, Penn had told Hamilton that “We do not purpose to present the Law you have passed ’til the fall so as to have it finished before Christmas, as we would not have it repealed ’till the Campaign is over, and the publick has the benefit of it.” But he did not present the act to the Privy Council in the fall, and on May 9, 1761, he told Richard Peters that he had determined to postpone the matter further on the advice of Hamilton and William Allen that the Assembly was becoming “somewhat better disposed and that this Disposition may increase so as to incline them in time to comply.” He added: “I have not the Least objection to pay the Sum we are Taxed at, but we are until the Act stipulated for shall be passed at the Mercy of the Assessors.” Penn Papers, Hist. Soc. Pa. The editors have been unable to discover any record that Penn presented this act to the Privy Council at any time before April 12, 1765, when the five-year limit stipulated by the charter expired, or that the Privy Council ever took any action upon it.

7A footnote at the appropriate place in the text of the order in council below, explains the difference in interpretation. In a later volume will appear several documents relating to this dispute of 1764.

8Henry Wilmot to John Penn, May 30, 1764, Statutes at Large, Pa., VI, 585–8; Pa. Col. Recs., IX, 237, 240–1, 244, 245.

9For the Board of Trade’s adverse comments on these acts, in which the Council Committee concurred, see above, pp. 147–64.

1In reference to this condition the Assembly told Governor Hamilton, March 14, 1761, “that no part of the unsurveyed Waste Lands belonging to the proprietaries, have in any instance been included in the Estates taxed.” Pa. Col. Recs., VIII, 584; see also, above, pp. 140–1 n.

2This is the stipulation which caused such bitter conflict in 1764. The bills presented that year provided that located but unimproved lands should be assessed at from £5 to £15 per hundred acres, depending on quality, and specified that such lands belonging to the Proprietors should not “be assessed higher than the lowest Rate at which any located uncultivated Lands belonging to the Inhabitants thereof, under the same Circumstances of Situation, Kind and Quality [italics added], shall be assessed.” When Governor Penn objected, the Assembly asked him if he thought the Privy Council stipulation meant that “the best and most valuable” of the proprietary lands “should be Taxed no higher than the worst and least valuable of the Lands belonging to the People.” He replied that, whatever was the lowest assessment on any such lands of the inhabitants, “none of the located, uncultivated Lands of the Proprietaries shall be assessed higher.” The Assembly considered this interpretation highly unjust and reminded Penn that his predecessor Hamilton had assured a former Assembly that “nothing was further from his Thoughts, than to desire the Proprietaries Estate should be exempted from paying a proportionable part of the Supplies for the current Service.” In the end, however, the Assembly resolved that the necessity of raising money for provincial defense was “so great and pressing” that it would waive its parliamentary rights and amend the bill to conform to the governor’s interpretation. Votes, 1763–64, pp. 64, 69, 71, 88.

3Because of its phraseology, this stipulation became involved in the controversy over the one immediately above.

4Writing the last pages of his autobiography about 1789, BF summarized the arguments of opposing counsel on the Supply Act and then continued: “On this Lord Mansfield, one of the Council rose, and beckoning to me, took me into the Clerks’ Chamber, while the Lawyers were pleading, and ask’d me if I was really of Opinion that no Injury would be done the Proprietary Estate in the Execution of the Act. I said, Certainly. Then says he, you can have little Objection to enter into an Engagement to assure that Point. I answer’d None at all. He then call’d in Paris [BF’s error of memory for Wilmot; Paris was dead] and after some Discourse his Lordship’s Proposition was accepted on both Sides; a Paper to the purpose was drawn up by the Clerk of the Council, which I sign’d with Mr. Charles, who was also an Agent of the Province for their ordinary Affairs; when Lord Mansfield return’d to the Council Chamber where finally the Law was allowed to pass. Some changes were however recommended and we also engag’d they should be made by a subsequent Law; but the Assembly, did not think them necessary. For one Year’s Tax having been levied by the Act, before the Order of Council arrived, they appointed a Committee to examine the Proceedings of the Assessors, and On this Committee they put several particular Friends of the Proprietaries. After a full Enquiry they unanimously sign’d a Report that they found the Tax had been assess’d with perfect Equity.” Autobiog. (APS-Yale edit.), pp. 265–6. Careful comparison of this account with the order in council shows some discrepancies, doubtless caused by BF’s loss of exact memory after nearly thirty years, but there seems to be no reason to question the credit he assigned to Lord Mansfield for suggesting the compromise.

5Since Eyre, acting for Franklin, had presented the Agency Act to the Privy Council on February 16, the six months allowed by the Pa. charter for its consideration, had expired on August 16, and it could not have been disallowed thereafter in any case. The time limit on the other eighteen acts, all presented by Penn on March 13, was to expire on September 13, so this order in council beat that deadline by a matter of eleven days.

6As stated above, p. 134 n the Pa. charter required that the disallowance of any act of that colony should be signified by an instrument under the privy seal, not, as was the case in other colonies, merely by an order in council. Penn wrote Hamilton, Sept. 5, 1760, that he was sending the order in council, but that he was keeping the privy seal there. It should, of course, be among the Penn Papers, but some of these were destroyed in the nineteenth century and others scattered. Although the Historical Society of Pennsylvania had made strenuous efforts to reassemble the collection as completely as possible, members of the Society’s staff, who have conducted a careful search for this document for the present editors, report they have been unable to find it.

7One of the clerks of the Privy Council.

Index Entries