USA > Pennsylvania > Colonial records of Pennsylvania, Vol. VIII > Part 53
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" But before we take the liberty of stating to your Lordships our Opinion, either upon the General Nature or upon the particular provisions of these Laws, We apprehend it will be necessary for us to remove two Objections which have been opposed on the part of the Assembly to prevent our entering at all into the merits of those Laws, which, by your Lordships have already referred, or which, under the same Circumstances you may hereafter think proper to refer to our Consideration.
" The first of these Objections is derived from a Construction of that Clause in the Royal Charter, by which it is provided that all Laws passed in Pennsylvania shall be transmitted to England, and that if they shall be found to Contain any thing Contrary to the sovereignty or prerogative of the Crown or to the Faith and Alle- giance of the Subject, they may, within Six Months, be declared Void by his Majesty ; if not, that they shall remain in full force from the express mention of those purposes for which the Negative is here declared to be reserved, it is Contended that the right an- nulling the Laws of this Province is Confined to the preservation of the prerogative and Sovereignty of the Crown, and the meer gene- ral Dependance of the Subject.
"By the second it is Contended that however discretionary the Power of exercising that Negative may be in the Crown, the Pro- prietaries are excluded from claiming any benefit by it, and that by the Consent of their Deputy they are finally tied down as Partios without any Tittle to Complain or any possability of Relief.
" Upon the first of these Objections, We beg leave to State the only two Clauses in the Charter relative to the passing Laws in Pennsylvania; In the first of these it is provided that they shall be consonant to natural Equity and as far as Circumstances will admit conformable to the Laws of England; In the Second, that they shall not be contrary to the Sovereignty or Prerogative of the Crown ; and We apprehend, my Lords, it would be a construction altogether unreasonable to suppose that where there are two Reservations of which the Crown has been equally tender, and upon which the Charter is equally explicit, that the Clause which relates to the Execution should be confined only to one of them and not extended
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equally to both ; and we are thoroughly persuaded that the Crown would and ought to be to the full as jealous on behalf of the Sub- ject, that Laws should not be contrary to Reason or repugnant to the Laws of England, as it would be for the protection of its own Soveriegnty and prerogative, and it is scarce possible to suppose that the Crown should have reserved to itself by the Appeal the Judicial power in its full Extent, which is of less Importance and Inferior Dignity, and at the same time have divested itself of the far greater part of the Legislative, which is essential to its Royalty and which is always exercised by the King in his our Person.
" And that this has been the Construction of these Clauses, ap- pears from the uniform practice of this Board, which has frequently advised his Majesty to Annul the Laws of this Province, not only for being derogatory to his Majesty's Prerogative, not only because they were repugnant to Equity, or the Laws of England, but fre- quently upon a meer Consideration of their General inexpediency ; And this opinion has been so uniform on the part of the Board, that there is no Instance to the Contrary; and on the part of the Pro- vince there has been no Complaint or Remonstrance whatever, against the exercise of this Power by the Crown in its utmost Latitude ; On the Contrary, We beg leave to observe that this power has been ratified in the fullest manner by the Province itself, in an Act of its own. In Virtue of the Powers of the Charter which we have al- ready had Occasion to mention to your Lordships, several Laws had, in the year 1705 been declared void by Order of her Majesty in Council only, and not according to the express Words of the Charter under the privy seal. To remove any doubts which might Arise concerning the Repeal of those Acts, and to supply that de- fect of Formality, the Assembly in Pennsylvania passed a Law con- firming the Repeal of all the Acts which before the year 1734, had been declared Void by order in Council, amongst which there are Laws of almost every different description, and but a few of which can be brought, and that limitted Construction now contended for by the Assembly, as affecting the Sovereignty and prerogative of the Crown, or the Allegiance of the Subject ; and, my Lords, it is material to observe that this Law of the Province of Pennsylvania was passed, not to remove any Doubts that had arose from the Power which the Crown had exercised, but merely to supply the omission to those forms which the Crown, in its Charter, had pre- scribed.
" This, We conceive, my Lords, is the right of the Crown, as it appears upon the face of the Charter, and this We have Stated to your Lordships for no other purpose than to answer those Objec- tions which have been raised against the power of the Crown, and which have been drawn from the Charter itself, not in any wise ad- mitting that the right of the Crown has its Origin, or derives any part of its Validity from the Charter, or from any Confirmation of it by the Legislature of Pennsylvania; On the Contrary, we are
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fully of Opinion that every british Subject, whilst he remains in any Country under the Allegiance of the Crown, has an Indisput- table right to avail himself of its just prerogatives for the redress of any Grievances which he may suffer, and from this benefit we ap- prehend no one Subject can be shut out by any Favour or partiality to another, or by any Grant or Charter whatsoever, and that, there- fore, for the Exercise of that protection in its most essental part, there is a reservation of the King's final negative necessarily im- plied, tho' it should not be actually expressed in every Charter by which the King gives permission to his subjects to make Laws in America, and it is in Consequence alone, of this Right to protect- ion in the Subject and Superintendance inherent in the Supreme power, and inseparable from it, that his Majesty has frequently ab- rogated the Laws which have been made in Charter Governments, and particularly in the Colony of Connecticut, where the power of the Crown is much more limited; where there is no reservation in the Charter of the Royal Negative, nor any Regulation for trans- mitting their Laws to England, both of which are particularly pro- vided for in the Charter of Pennsylvania.
"In every light, therefore, my Lords, which we consider it, from the reason of the King, from the Express Words of the Charter, from that Construction of the Regulations which reason requires from the uninterrupted Course of the precedents, from the Assem- bly's Admission of that right, and from that inherent part of Sov- ereignty by which the Crown owes an equal protection to all its Subjects, We are clearly of Opinion that his Majesty has an un- doubted Right to Examine into the merits of this and every other Provincial Law, to give or to with hold his Negative upon any good Reasons which may be Suggested to him by the Wisdom of his privy Council, or by his own Royal prudence and discretion.
" We come now to lay before your Lordships our opinion upon the Second head of general Objection, that the Proprietaries having by their Deputy consented to these Laws, are not entitled to Sollicit the Interposition of the Crown in their behalf. If your Lordships should approve what we have already Stated as to the power of the Crown by the General Reservation of the Charter, We apprehend you will necessarily be of opinion that the Crown should not Pre- clude itself from any Information, by whomsoever it may be fur- nished, and by which it may be better qualified to direct the Exer- cise of the Power it has reserved, and that the Crown will hear the Proprietaries for that purpose, in Common with any other person in the Province, all of whom must be Considered as being in Common with them Parties to every law having by the na- ture of the Constitution given their Assent to it, either actu- ally by themselves or virtually by their Representatives. We apprehend, therefore, my Lords, that the Crown will not only permit but encourage the throwing all possible light upon every Provincial Law that may be passed, that it will disregard intirely
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the Person who Complains, and attend only to the Justice of the Act and the merits of the Complaint. Whatever, therefore, may be the Situation of the Proprietaries, the Crown will still Exercise its Negative in such manner as it thinks proper, and if by the Strict Letter of the Law the Proprietaries should be tied down, We ap- prehend it would be extreamly injurious that they should in reason and Equity be considered as a party to those Acts. For, my Lords, in the Course of this hearing, it has been made sufficiently apparent by the manner in which the Assembly detained the Salary of the Deputy Governor till he had given his assent to those Laws, and by the manner in which they paid it when he passed them (a Sepe- rate Sum Sum being received by him upon his Consent to Seperate Laws) that it was meant by the Assembly and understood by the Governor as a Consideration for his passing these Exceptionable Acts in contradiction to his Instructions. And if it was possible for us to entertain any doubt upon this head, the Assembly them- selves would not permit us; a Vote of their House has been pro- duced, in which they State that the Governor had Acted not only against the Proprietaries' Instructions, but against the Remon- strances of the Council appointed to advise him that they Conclude therefore he will incur the forfeiture of his Bond, against the pen- alties of which by their vote the undertake to Indemnify him ; And tho' some instances have been brought in which the salary of Gov- ernors has been permitted to be in Arrear, yet no Instance has been produced that is in any manner parallell to the present. But what peculiarly distinguishes this Case from all others is the vote of indemnity, and it would be particularly hard to suffer the Assem- bly by taking advantage of their own wrong at once by their vote of Indemnification to declare that the Assent to these Laws was not the Act of the Proprietaries, and then to Contend that they should be bound by it. For we apprehend, my Lords, that the po- sition laid down by this Assembly in their Vote that the deputy Governor is not in any case bound by the Instruction of his princi- pal, but is vested by the nature of his Office with discretionary powers to act as he thinks proper, is not only against the essential nature of all deputed power which is always qualified by such Limi- tations as the principal impose on it, but if taken concurrently with. their proceedings in regard to the Salary, would establish an uni- form System of Collusion between the Governor and the Assembly.
" We apprehend, likewise, it would be productive of the greatest Injustice, not only to the Proprietaries but to the province, if the Assembly should be encouraged in so unwarrantable a practice as to apply the money of the people first to corrupt the deputy Gover- nor, and then to take away the means by which his principals may bind himto his duty or punish him for the violation of it; And that it must also occasion the most serious mischief in Government, if in this Colony, consisting only of two branches of Legislature, the one shall be permitted, by a publick Act, to corrupt the party entrusted
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with the prerogatives of the other ; And we are perswaded that your Lordships will approve our recommending it to his Majesty to dis- countenance, by every possible method, so collusive and iniquitous a practice.
" For these reasons, my Lords, we are clearly of opinion upon the second head of general objection, that the Crown will be open to every information from every person; that the Proprietaries are, in this particular Case, not so concluded by the Act of their Deputy as to have no title to Complain ; that on the contrary, the Act of their Deputy has given them the strongest reason to complain, and the justest Title to redress ; That as wronged Individuals, they have a right to resert to the Crown for relief, and that as Persons in- trusted with some of its most valuable prerogatives, They come be- fore his Majesty on the fairest grounds imaginable. For, my Lords, it has uniformly been the Practice of this Board to preserve, to the utmost of their power, the just prerogative of the Crown where ever they may be lodged, and even tho' the Trustees should be wil- ling to part with them, much more when, in pursuance of their Duty, they come laudibly to prevent any dilapidiation of them in their Hands.
" We have dwelt, my Lords, the longer on these preliminary Points, because it is by the determination of them that our right to a more particular discussion of these Laws must Stand or fall, and because it is upon the latter of these Objections, rather than upon the merits of the particular Regulations, that the Council for the Assembly have Supported the whole body of the Acts objected to by the Proprietaries, but above all because they turn on matters of the last importance to his Majesty's prerogative, and to the peace, order, and good Government not only of this, but of several others of his Majesty's Plantations in America.
" These two points being Established, the right of the Proprieta- ries to Complain, and the right of the Crown to redress, We come next, my Lords, to. consider how far the several Laws referred to us by your Lordships, may deserve his majesty's disapprobation or Allowance.
" And the first Act upon which we shall take the Liberty of Stating our opinion to your Lordships, is the Act of 1759, for rais- ing £100,000, departing from the Order of your Lordship's refer- ence, and pursuing that method in which the several Laws were ob- jected to by the Council for the Proprietaries, and supported in behalf of the Assembly. This Act is Entitled 'An Act for granting to his Majesty the Sum of 100,000, and for striking the same in Bills of Credit in the manner therein 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.'
" And the object of it is granting a supply to his Majesty, suit- able to the Circumstances of the Province, and the Exigencies of VOL. VIII .- 34.
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Government, to be raised by Tax on all real and Personal property within the Province. It will be necessary for us to observe to your Lordships that before the year 1755 no Attempts had been made to include the Proprietary Estate in any General Land Tax Bill ; the Proprietaries Contended against this innovation, and by contri- buting towards the General Supply by a free gift of £5,000, their Estates were, upon that Consideration, not included either in the Land Tax Bill of 1755, or in the Tax Bills of 1757 and 1758, which were considered as Supplements to it; this expedient, how- ever, procured but a temporary suspension of the Dispute which was revived again and continued for a long Time to disturb the Tranquility of the Province, and to embarrass the public Proceed- ings. To quiet these Dissentions, the Proprietaries at last Consen- ted that their Estates should be taxed, interposing only these very reasonable Conditions that the impositions should be laid on Ob- jects properly Taxable, that Equality should be observed in the quantity and Justice in the mode of Taxation. This gave rise to the Act of 1759, by your Lordship's reference now under our Con- sideration, by which the Proprietary Estates were taxed, not only to the Supply then given, but retrospectively towards all the sup- plys since 1755 inclusive, allowing them Credit for the ££5,000 Received, if it should happen to fall short of their proportion of the Tax. This Regulation which might appear otherwise unrea- sonable, was founded on a proposition of the Proprietaries in a Let- ter to Mr. Franklin, the Agent of the Assembly.
" How far this Act is consistent with the Royal prerogative, agreeable to natural Equity and the Laws of England, we shall now take the liberty of stating to your Lordships.
"In Order to make this matter as clear as its intricacy will admit, we beg leave to state the nature and qualitys of the Proprie- tary Estates in that Country. They consist, first, of quit rents given on Grants of the property and Inheritance of Land ; Second, of Rents reserved upon Leases for lives or years ; 3d, of the waste Lands which are held by them under their Charter in Virtue of their General proprietary Right ; 4th, of located Lands, which are Lands reserved by the proprietarys for their own use, out of those Tracts which are granted to private persons, and which tho' appropriated as their Demesne are not Cultivated but kept vacant, in order that they may be occupied, let, or sold, as they shall judge' most Convenient. The 2 first of these Divisions of their Property, the Quit Rents and reserved Rents, the proprietaries freely consent should be taxed. The only dispute therefore is with regard to the 3d Species of property, the waste Lands which are not located, and the 4th, which are the improved and unsettled demesne Lands which are located, and each of these it is Contended, as We apprehend with reason, is a Species of Property which is by no means a proper Ob- ject of Taxation, for by this means a Tax is annually imposed upon what yeilds no Annual Produce or, properly, speaking no produce at
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all, Contrary to reason and Contrary to those rules which in Eng- land have been on these Occasions Constantly observed ; and, my Lords, we conceive that the Tax imposed by this Act upon located Lands, tho' unimproved, is not only injurious to the Proprietaries but to every Individual in the Province who is possessed of Lands under the same Circumstances. What adds to the Impropriety of this Tax, is that the annual imposition on those Lands is limited only from 5 to £15 Pr. Hundred Acres, by which means a great Latitude is left open to partiality and injustice in the Assessions.
" But with regard to the proprietaries there is a peculiar hard- ship in that Charge imposed by the first taxing Clause in this Bill on Land at large, tho' they are neither improved or located, a des- cription which can alone be applied to the Lands of the proprieta- ries ; these we apprehend to be rather a more improper Object of Taxation than the former, these are likewise deprived of the Bene- fit even of those Restrictions used in the former tax, as those Re- strictions are the mode and quantum of the Tax as far as it relates to this Object, not being limited as in the other Case from 5 to £15, but absolutely left open to the discreation of the Assessors.
" It is not, my Lords, in the object of the Tax alone that the Proprietary is distinguished from every Individual in the Province, but likewise in the Method of Taxation ; by this Act, in Cases of private property, every Species of Estate is to support its own proper Burthen, According to its particular Nature and Circum- stance ; on Non-Payment of the Tax on improved Lands, the Remedy which the Act has appointed is Distress for unimproved Lands ; because there can be no Remedy by Distress, recourse is had to Sale, and these Remedys are never displaced, nor is one kind of Land in any Case made answerable for the defaults on the other. But this rational and distinguishing Order is quitted when applied to the proprietaries, for in their Case there is one only remedy and. that is an Absolute Sale of their Lands, whether improved or un- improved and that for default of payment of the tax, whether on their quit Rents, their Reserved Rents, their located Demesne, or their Lands at large, in the ordinary Course likewise of levying the the Tax upon Individuals, they first resort to the Landlord, and on his default to the Tenant before they proceed even to distress ; in the Case of the Proprietaries, they go only to the Receiver General, and on his refusal or neglect, take no Notice of the Tenant, but have recourse immediately to Sale giving against the Proprietaries, in the first instance that Remedy upon a default of payment of the Tax for any of their Lands or their Rents which they refuse against the individual, except in the last resort, and then for his unim- proved Lands alone, and this regulation, my Lords, is not only partial in itself, but Contrary to the Laws of England, which in no Case Subject Lands to Sale for non-payment of Taxes.
"The proprietaries complain, and we apprehend with reason, not only as to the injustice of the Tax in its Object, as to the partiality-
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of the Methods by which it is enforced, but likewise as to the ine- quality which is observed in the Choice of Assessors for Collect- ing it.
"The Inhabitants of this Province, whenever they are taxed in common with the Proprietaries, may be Consider'd as their Adver- sarys, as the former will be exonerated in the proportion as the lat- ter are burthened. It would have been but justice, therefore, to have provided indifferently for each, but the Proprietaries, by hav- ing no Vote in the Choice of Assessors, not even an Negative on those who are appointed to dispose of their property, are not in this respect, upon a footing with the meanest Freeholder in the Pro- vince ; if they appeal from the partiality of the Assessors who are Chosen by the People, it is to Commissioners who are elected in the same Manner, and are liable, therefore, to the same exception. We ought not, my Lords, to pass over the plea which the Assembly makes in favour of this Regulation, that the manner of levying the Tax and of Judging an appeal as settled by this Law, is the same with that which has been so long in use by the Act for levying County Rates, and that no Complaints have been made of any In- convenience or Oppression ; but this method, which was very reason- able when the People only were Taxed, becomes altogether unfit when a new Object is let in, and the Proprietaries are to be charged ; and therefore, no Argument can be drawn from the Equality of the former method, the present Circumstance being, as must be obvious to your Lordships, extremely different. Added, my Lords, to the Appointment of Assessors, and of Commissioners of Appeal, in neither of which the Proprietaries have any share, the Assembly has taken to itself solely and independent of the Governor, a right of revising and Controlling the whole Assessment, which, we appre- hend, as far as this object extends, to be no less than assuming to themselves At once a great part of the executive, and in Effect, the whole of the Legislative power, as by Controlling the Assessment, they may either raise or lower it, as they think proper, which is in every respect equivalent to a new Tax, and this Extraordinary power is reserved in Words so general and Ambiguous, that it is impos- sible to set any limits to their pretensions, especially as they have brought the interpretation of this Act before no other Tribunal but their own Assembly, in proportion as they have departed from jus- tice, departing from the Constitution and the Laws of England, when the House of Commons have never assumed a power in any manner similar to this. And, my Lords, the Assembly, not Content with Levying the money solely by popular Assessors, trying the Appeal before a popular Tribunal, revising and Controlling the whole Taxation by a popular Representative, have vested in them- selves alone, the application of the money which is thus directed to be raised, usurping by this means, one of the most inviolable pre- rogatives of the Executive Power, not Countenanced by any Ex- ample of the British Representative, who always consider the ap-
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plication of the Publick Money Subject to account, as one of the most undisputed powers of the Crown. It is true, that the As- sembly have in part of this Act, complimented the Governor with a Share in the Application of the Money, but by the two Clauses im- mediately Subsequent, they have taken Care to render that Conces- sion ineffectual ; For by these, a majority of the Commissiories are independent of the Governor, Impower'd to draw upon the Loan Office, not only for the purposes of this Act, but for the discharge of Services performed under the Authority of a former Law, and which, thro' the deficiency of the Funds set apart for the Payment of them, had not yet been provided for.
"The next exceptionable provision, my Lords, is that by which the Assembly have reserved to themselves the sole and exclusive nomi- nation of the Officers created by this Act, a prerogative not only be- longing, but absolutely essential to the executive Power, and on which the Exercise of all the rest depends; and it will be needless to point out to your Lordships, that in this, as in all other Instances of the same kind, they have far exceeded the largest Claims of the British House of Commons; and this Encroachment, my Lords, they Constantly Exercise, and in almost every Act by which a new Officer is appointed, the sole Nomination of that Officer, by an Ex- press provision, is particularly reserved to the Assembly.
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