USA > Pennsylvania > Colonial records of Pennsylvania, Vol. VIII > Part 54
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" In addition, my Lords, to all these objections, there is another which we apprehend to be Extremely material, arising from that part of the Act by which it is Contended that the Proprietaries should be bound to receive their Rents in paper Currency, notwith- standing the express reservation of them by the Words of their Contracts in Sterling; but as we shall have Occasion in the Course of our Report upon the Subsequent Laws, to State this matter more fully, we shall not now enter into the discussion of it at Large, but satisfy ourselves here with barely pointing it out to your Lordships' Observation.
"We must not here omit taking notice of one Argument which has been offered by the Assembly, and very strongly insisted on, in Order to obtain his Majesty's Approbation of this Act; And that, my Lords, is drawn not from the merits of the Act itself, but from the Inconveniences which they State must unavoidably Attend the Repeal of it: 'That they money being already omitted under the Publick faith, and Circulating every where throughout the Province, if this Act should be Annulled, must of necessity lose its Credit, and that many, therefore, would become Sufferers who were by no means Instrumental in framing those Inequitable Regulations, for which the Law was Deprived of its validity.' We are sensible, my Lords, from the manner in which this Act is framed, that some in- conveniences must follow, either the confirmation or the disallowance of it; and we have it in our power only to Consider which will be productive of the several Mischiefs. This, my Lords, is what we have weighed as deliberately as we are able, and we are clearly of
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opinion that from the Comparative lightness of the Evil, and from the Comparative easiness of the Remedy, as well as for the sake of the Precedent, that the Repeal of this Law is much the least excep- tionable part. If the Act should be Confirmed, a Capital Injustice would be done to the Proprietaries, several Infractions would be made upon the Constitution, and several Incroachments on the pre- rogative. And those, my Lords, during the Subsistence of the Act, could not possibly be remedied, and probably would not upon the expiration of it, for there is not one provision of the Law which has not been supported by the Assembly, or permanent principles, from which they will not, and from which, if their opinions were well grounded, they ought not to depart. The method of Taxing the Proprietaries is contended for as consistent with Justice, and the Incroachments on the prerogative as agreeable to the Con- stitution. If, my Lords, on the other hand, the Act should be repealed, the Bills that have been issued may possibly be deprived of their Currency, the Odium, however, of this Inconvenience, We apprehend, must fall upon that who reduced the Crown to this ne- cessity, not upon the Crown itself or upon those whose Province it is to advise it, and this very Inconvenience it will be in the power of the Assembly who gave rise to it instantly to redress by the Passing an Act to re-establish the Credit of those Bills Simple and unadulterated by those Clauses, which gave Occasion to its being repealed ; And we beg leave to observe, that not one of those pro- visions, which we have Stated as so exceptionable, are at all essen- tial to the great and Capital Object of the Act. For, my Lords, the Sum of £100,000 will be Raised not only more equitably but full as effectually, if the object of the Tax be a proper as if it was an improper one, if the method of enforcing was equal instead of being partial, and if the Proprietaries had a Voice in the Nomina- tion of Assessors, in the Appointment of the Officers and in the disposition of the Money, as if they had not.
" In other Governments, my Lords, where Laws have been passed, which it has been thought for some reasons not advisable to Con- firm, and which, at the same time for others judged not expedient to repeal, the Crown has far a time suspended its decision, still hav- ing in itself the power either of Confirmation or Disallowance at any other more convenient Opportunity. From this Expedient in the present Case, even could we recommend it, his Majesty is pre- cluded by the Limitation of the Charter by the Terms of which, unless within Six Months past of which is now alapsed, the Laws are declared void, they of Course become Valid and the Interposition of the Crown, at any Subsequent Period, will be totally ineffectual. To Conclude, my Lords, on the most attentive Consideration of this Bill, from the manifest Injustice of some parts, from the Studied ambiguity of others, from the Impropriety of some of the Objects of the Tax, from the injustice which is done to the Proprietaries in their property as Individuals, and in their prerogatives as Governors,
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from the manner in which the Tax is laid, from the remedies which are prescribed to recover it, from the exclusive Choice of Assessors, Commissioners, and Revisors, by which the Tax is Subjected to three popular Bodies, by the usurpations and Encroachments in the Choice of Officers, and the application of money, and by the com- pulsory Tender of their Paper Currency, notwithstanding the Ex- press Reservation in the Contracts of the Proprietaries, in all which particulars the Act manifestly Offends either against natural Justice and the Laws of England, or the Royal prerogative, We are fully of opinion that this Act is one of the most proper Objects for the exercise of his Majesty's power of Repeal, which has been at any time referred to our Consideration ; and We humbly recommend it to be repealed accordingly.
"' An Act for re-emitting the Bills of Credit of this Province, heretofore re-emitted on Loan, and for Striking the further Sum of £36,650, to enable the Trustees to lend £50,000 to Colonel John Hunter, Agent for the Contractors, with the Right Honble. the Lords Commissioners of his Majesty's Treasury for his Majesty's Service.'
"' A Supplement to the Act Entitled ' An Act for re-emitting the Bills of Credit of this Province, heretofore re-emitted on Loan, and for Striking the further Sum of £36,650, to enable the Trus- tees to lend £50,000 to Colonel John Hunter, Agent for the Con- tractors, with the Right Honble. the Lords Commissioners of his Majesty's Treasury for his Majesty's Service.'
" Before we take the liberty of reporting to your Lordships the opinion we have formed upon the Subject of the first of these Bills, We beg leave to premise, that the Paper Currency (which is its principal Object) has been issued in this Colony and in the other Provinces of North America, for two purposes.
" The first, my Lords, is upon Loan to Supply the deficiency of Species, to serve as a Medium of Circulation within the Province, the Ballance of Trade being so much against them that Gold or Silver is very difficult to be procured.
" The Second, tho' it has for its imediate object only to provide for the Exigencies of Government, become in its operation Subser- vient to the former Purpose, and Contributes likewise to Increase the Circulation of the Province.
" We must observe further to your Lordships, That when paper Currency has been Struck for the former of these purposes, to be issued out upon Loan, it has been usual to Advance it on proper Security and at a legal Interest, the Borrower Stipulating that it should be repaid at a certain Period, and the legislature providing by their Act that the Bills so issued should, upon the re-payment of the money, be destroyed ; but it has frequently happened that when the Circulation of the Colony seemed in any manner to re- quire it, the legislature has directed that the Bills which had been paid in, and which were intended to be destroyed, should be again emitted under the same Security and at the same Interest.
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"By proper Currency, my Lords, thus issued upon Loans, several salutary purposes have at once been answered ; the defect of Circu- lation from the want of Specie that has been Supplied by being ad- vanced at a very low Interest, the Cultivation of the Province has been promoted, and that Interest has been Applied to support the Current Services of Government; under the Restrictions We have Stated to your Lordships, the paper Currency of this Province, by various Emissions and re-emissions, at length amounted to £80,000, but as the final Period of its legal Circulation is distant but a very few Years, and as by the Laws now subsisting the whole would expire in 1762, The Assembly proposes by this Act to revive the Circulation of these Bills, to Re-emit them as they shall be paid in, and to Continue their Credit to 1778 by an Additional Term of 16 years. We are far, my Lords, from being of opinion that the Sum of £80,000 as Stated by the Assembly, may not be necessary for the Circulation of the Colony, considering the great Increase of People and of Trade more than proportioned to that Increase in this very thriving and flourishing Province ; But we apprehend that the prolongation of this paper Currency for 16 years from 1762, is at present not only absolutely uunecessary but extremely impro- per. For first, my Lords, as to its being unnecessary, We must ob- serve that almost the whole Sum of £80,000 is still outstanding in the Province, and will Continue in Circulation by the Laws now Subsisting till the year 1762, no more than 1650 having as yet been actually paid in, tho' £27,000 is the Sum which, by the Terms of the Several Laws, ought before this time to have been discharged. Secondly, my Lords, we apprehend that a want of Circulation can- not possibly be felt in the Province, because great part of the Bills which have been struck since the Commencement of the War to supply the Exigencies of Government, and which, as we have ob- served to your Lordship, serve the same purposes of Circulation with the former, are together with almost the whole of the £80,000 still Current in the province, in so much, my Lords, that of all the paper Currency which has been issued in the years 1755, 1757, 1758, and 1759, the former is alone destroyed. If, therefore, it is confessed that the Sum of £80,000 is Sufficient for the Circulation of the Province, no defect, We apprehend, can be upon that head reasonably complained of, because from the several Paper Bills which have been passed and which and which have not yet been destroyed, a much larger Sum than that which is stated to be necessary, is now and will continue to be for Some time Outstanding in the Colony.
"As the Emission of paper Currency in General has never been encouraged, tho' it has in some Cases been tolerated by the Crown, the Consideration of this Re-emission ought not certainly to have resumed till as late as possible. But as this Bill was made as much earlier than was necessary, so it was Continued much longer than was proper. By the Act for regulating paper Currency in the New England Governments, the Term for the Circulation of Bills issued
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on Emergencies is Extended to 5 years only, to those issued for Circulation it is limited to 3. And tho', my Lords, this Province is exempted entirely from that Law, Yet as that exemption arose solely from a persuasion that the Province had, without a law, come of itself very near the regulations which the Law would have pre- scribed, We apprehend, to preserve the Reasons of this Exemption in all their Validity, it is necessary still to hold this Province near as may be to the Standard of that act.
" Further, my Lords, we must observe that this Act is lyable to that Objection which we only touched upon to your Lordships, in our Report on the Land Tax Act of 1759, and which we Shall now take the liberty of opening more at large. And here it will be necessary to observe that the Proprietaries, in their Grants, had originally reserved the payment of their Quit-Rents in Sterling money, Only, and this form of Reservation continued till 1732; But since that period their Rents have been expressly reserved, not only (as before) in Sterling Money, but with the addition of this new Clause: 'or its Value in Currency, regard being had to the rate of Exchange between Philadelphia and London.' In Conse- quence of Several Acts by which paper Currency was Issued in the Province, and by which it was likewise made a legal Tender in the payment of all Rents, &cª., a dispute arose between the Propri- etaries and their Tenants, The Tenants insisting on the Tender of Paper Currency, under the authority of the Acts of the Province, and the Proprietaries refusing to receive it, as contrary to the Ex- press Reservation of their Grants. To Quiet this dispute, the As- sembly agreed to pay the Proprietaries a Sum of £1200, and £130 Pr. Annum, till the year 1749, as a Compensation for the difference between the sterling Money, which was reserved by the Proprie- taries, and the Paper Currency which was tendered by the Tenant, enacting, at the Same time, that all Quit-Rents since 1732 should, for the future, be paid according to the terms of their Covenants, and in this, tho' not amounting to half of the real Difference, the Proprietaries acquiesced ; and tho', my Lords, the Assembly, by this Compensation which they made to the Proprietaries, seem to allow that they had a right by Such Reservation, and a loss by the Breach of it, yet notwithstanding their former Sense of this Affair, tho' it is not denied that Paper Currency is Greatly below Sterling Money in its Value even at Present, when the large Remittances to North America, for the payment of the Troops and the other Services of the War, have rendered the Exchange less in their dis- favour than it otherwise would be, Tho' the Tenor of the Grants, either before or Since 1732, are not questioned, the paper Currency is by this Act made a valid Tender for the Proprietaries' Rents, as well as for all payments whatsoever, not excepting even the Con- tracts that have been made since 1732, as they had before done 'in the 12th of the King, nor making in this Case as they had done in the former, any Compensation, however unequal for the Loss, and
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we beg leave, upon this occasion, to remind your Lordships that his Majesty did, in the Course of the last year, disapprove a Law of North Carolina by which his Majesty's Quit-Rents, being Com- prized in the General Terms of all Debts and Demands whatsoever, were made payable in paper Currency; And at the Same time his Majesty, by a special Instruction directed his Governor to take Care that in all future Acts for issuing paper Currency, a Clause be inserted, declaring that the paper Bills of Credit already Issued, or thereby to be issued, shall not be a legal Tender in payment of the said Quit-Rents, nor of any Debts whatsoever that may become due to the Crown.
" We have likewise, my Lords, another very material Objection to this Bill, as it is now Constituted, arising from the re-emission being conn'ed with the Loan to Colonel Hunter, with which it has not the least necessary relation ; by this Method of Blending to- gether, in the same Bill, things which are in their own Nature totally separate, The Crown is reduced to the Alternative, either of passing what it disapproves or of rejecting what may be neces- sary for the publick Service ; & this manner of framing Laws has been always so exceptionable to his Majesty that in Governments more immediately under the Controul of the Crown, it is a Standing Instruction to the Governor not to give his Assent whenever it was proposed that Matters of a different nature should be regulated in the same Law.
"But, my Lords, in Order to shew that the Clause relative to the re-emission was inserted only as a Tack to the Loan, it has been alledged by the Council for the Proprietaries, that the very same being offered in a separate Bill, was rejected by the Governor, but obtained his consent when connected with the Loan to Colonel Hunter.
"None of those Inconveniences which may possibly attend the repeal of the Land Tax Act are in this Case to be apprehended ; for the money having been advanced by Colonel Hunter to the Con- tractors, with his Majesty's Treasury, has been already repaid, and will probably be received in Pennsylvania before the Repeal of this Act can possibly arrive there, and thus, my Lords, publick Justice will be done without Injury to any Individual.
" We must, in addition to these objections, also mention to your Lordships that the Assembly have, in this Instance, likewise taken to themselves the sole disposition of this Interest, arising from the £80,000 which, at £4,000 Pr. Annum for 16 years would Amot to £64,000; but we shall not repeat what we have already taken the liberty of offering to your Lordships, upon the application of all money being assumed by the Assembly in the former Act, especially as we imagine we already given Sufficient reasons for the support of our Advice to his Majesty, that these two Acts may be repealed.
" The Act, my Lords, intituled a supplement to this Act is lyable to the same Objections with the Act it self. If your Lordships
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should approve what we have stated upon the Act, this Supplement will meet of course with his Majesty's disallowance.
" There is, however, one additional Objection to the Supplemen- tal Act, that the Nomination of Officers, which by the Act itself was to be exercised by the Assembly with the Concurrence of the Governor, is here to be exercised by the Assembly only.
"' An Act forrecording of Warrants and Surveys, and for render- ing the real Estates and property within this Province more secure.'
" In Order to Comprehend the Object and to Judge of the Equity of this Law, it will be necessary for us to state to your Lordships the method which is now pursued in Granting Lands in Pennsylvania ; Upon application being made to the Proprietaries a Warrant is directed to the Surveyor General to survey the Lands that have been applied for; That survey when made is returned into the Secretary's Office, and upon the entire payment of the purchase Money a Patent is made out. By this Bill, it is proposed that a new Office shall be Erected for the registration of these Warrants and Surveys, there being no Office in the Province which by Law is bound to record them as they are at present kept only in the Office of the Proprietaries, at their Discretion, under the Direction of an Officer of their appointment, receiving a Salary from their Bounty, and liable to be removed at their displeasure.
" We cannot possibly, my Lords, object to any Regulations which seem to carry with them a probable Tendency of establishing the Evidences of property, and of preventing litigation in the Province, But we are of Opinion that the scope and drift of this Bill (which tho' it is expressed some what ambiguously in a Clause of the Act itself, is yet very clearly explained by a Message of the Assembly), is extremely exceptionable. By the Act it is implied only, but not explicately avowed, that a Warrant and survey are in Law a Com- pleat Title to an Estate of Inheritance in Lands, for it declares that Estates are claimed and held under Warrants and Surveys and other Writings, Specifying in clear and Express words the Warrants and Surveys as if they were the only, or most material part of the Title, and passing by the Patent, or involving it only in the general Term of other Writings, as a matter of little or no importance, tho' We apprehend it is, in reality, the only legal conveyance of an Estate. But, my Lords, as we have already observed the ambiguity of their Act is taken a way by the clearness of their Message, for the Assembly being pressed on the part of the Governor to ex- plain themselves on this point, they expressly affirm that the true right of property is vested from the moment the Warrant is de- liver'd.
" And this Regulation of the Bill, we apprehend, my Lords, to be highly exceptionable, as it establishes a Title to an Estate different from that which prevails by the Common Law, And we apprehend, it is likewise extremely unequitable to the Proprietaries, For, from the terms upon which Lands are usually granted in Pennsylvania,
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it seldom happens that upon the Issuing a Warrant and Survey, the whole of the purchase Money is paid down part only, and that com- monly a very small part is advanced at first, and the payment of the remainder, according to the Circumstances of the Case, is to be com- pleated at some other, and often at a very distant period, and this, my Lords, by a policy very rational in itself, and highly conducive to the Settlement of the Province; for, by this means, the Pur- chaser, instead of being totally exhausted by the Purchase, has money left to be Expended in the Cultivation of his Lands.
" As the Laws now stand, independent of this Bill, the Proprie- taries and the Grantee have a mutual, and, as near as the Nature of the thing will admit, an equal Remedy against each other. But if the Bill proposed should pass into a Law, and the meer Warrant and Survey, which now only give a Conditional Right to an Estate, upon the performance of the terms of the Contract, should confer a right Absolutely, and of Course, the Proprietaries would be de- prived of their proper and only certain remedy against the Grantee, the regaining possession of their Land by an ejectment for the per- sonal Remedy against the settler, might, in any Case, be rendered ineffectual by the settler himself, who having, by the principles of this Act, a Compleat Title to his Estate by the meer Warrant and Survey, might, in Virtue of that Title, Convey and alien it to another, and the person claiming under that Conveyance would be confirmed in the possession of the Estate, and the Proprietaries per- sonal remedy must cease of course, upon the absence of the person to whom the Grant was originally made.
"Nor, my Lords, as we conceive, would the establishment of such a Title be more injurious to the Proprietaries, than to the real Interests of the Province itself ? For, if the Proprietaries should be discouraged from making out any Warrants 'till the whole of the purchase money is discharged, the method of paying by Instalments, which has hitherto been followed, not only with so much Benefit to the Proprietaries, but with so much Advantage to Individuals and to the general Advancement and cultivation of the Province, would be entirely taken away.
"There are, likewise, other Objections to which the said Act, in our opinion, is liable, that it will be necessary for us only just to mention, and for which, together with those already stated to your Lordships, We beg leave to offer it as our opinion, that this Bill should not, by receiving his Majesty's approbation, be permitted to pass into a Law.
" We are of opinion, my Lords, that the time in which the Sur- veyor is limited to execute every Warrant and survey that may be sent him, being only 40 days, unreasonably short, That his Com- pliance with this provision in the Act may in some Cases be impos- sible and in other extremely difficult, and we see no Inconvenience that could possibly have arisen from an extension of that Term.
"We Conceive that the directions under which, by this Act, the Surveyor is to execute his Office, are equally injurious to the Pro-
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prietaries' Rights and to the common good of the Province. With respect to the Proprietaries by the Surveyors being obliged to survey to the Claimant whatsoever Spots or parcels of Lands he shall think most eligible for his purpose, the Proprietaries are deprived of that pre-option which they always had, and to which they are undoubtedly entitled in the reservation of such parcels of Lands as they may prefer to be Set apart for their own Demesne ; With regard to the Province, as the Lands of Pennsylvania are various in their Nature, and advantages with respect to Wood, Water, and Fertility of soil, by enabling the first Grantee to select out those parts which are in every Spot the most adventageous for a Settler, the refuse of the Land will be left only for those who succeed him, to the great dis- couragment of new purchasers, and to the manifest disadvantage of Settlement.
" We apprehend, likewise, that the penalty of £500 to be levied upon the Officer, on his neglect to Register any paper or Minute of property whatsoever by which any person may be affected, is much too heavy, and that where the Duty is so very extensive and the directions of the Act so very minute, the penalty should not be so extremely consible.
" But tho', my Lords, we cannot possibly approve, for the reasons we have stated, the particular Regulations that are proposed by the Assembly in this Act, we are far from being of opinion that no Regulation is necessary ; on the Contrary, we think it highly Ex- pedient that the Office Constituted into Publick Office not only for the Registration of Patents, but of Warrants and Surveys, and of any other transactions which may be thought advisable and which relate to the purchase of Lands ; That While the Proprietaries may not beinvaded in their rights, every Individual in the Province may be Satisfied as to the Fidelity of the Record and the Integrity of the Offi- cer; That security should be given for the good behaviour of the Offi- cer, and that he should be liable to penalties for mal Administration ; such Regulations, we are of opinion, will answer the purposes of removing effectually all the real Inconveniences that are complained of, and all the Jealousies of the Assembly, as far as they are well grounded, without oppression or Injustice to the Proprietaries; and we are, my Lords, the more Inclined to approve of the plan we have Suggested to your Lordships, because in the Government of Virginia, where the patents of Grantees were registered in an Office under the immediate Controul of the Crown, similar to that which is now subsisting in Pennsylvania under the authority of the Pro- prietaries. His Majesty did, of his own Motion, recommend It to the Assembly of that Province, to pass a Law by which that Office, which had till then been more imediately under the direction of the Crown, should be converted into a public Office, under the several Circumstances which We have already pointed out to your Lord- ships, His Majesty, however, reserving to himself, in mentenance of his Just prerogative, the Exclusive Nomination of the Office.
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