USA > Pennsylvania > History of proprietary government in Pennsylvania > Part 38
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1 Votes, iv, pp. 421-2.
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plied that an equitable tax would free their estates from a troublesome enemy, so that yielding a part to save the whole was certainly not an encumbrance. It claimed that it did not tax the proprietors as governors, but as fellow subjects, land- holders, and possessors of an estate. It even went so far as to assert that the proprietors did not govern, though their lieu- tenants did. But if any proprietor did actually exercise the office of governor, and had a support allowed, he would still be liable as a landholder for the security of his property. Then it proceeded to argue that the tenants on the king's lands were by every act of parliament levying a land tax compelled to contribute, even if they deducted the amount of the assessment from their rents. The governor, it believed, had referred to the statutes of the province under which the county rates were levied, as furnishing instances of the exemption of the proprie- tary lands from taxation. The assembly claimed that they could not be so used, because the revenue accruing under them was employed for purposes beyond the scope of proprietary responsibility, such as the payment of assemblymen's wages, and rewards for killing wolves, crows, foxes, and the like. They were in fact local enactments, not general laws passed " to enforce a natural right."I It also failed to see the equity in allowing the proprietors to have a negative in the selection of assessors, for that would give them equal weight with the representatives of the people in making that choice, though they might not pay a hundredth part of the tax. It declared on the other hand, that, if it had the exclusive right to deter- mine the method by which the officials would be chosen, the assessments would be impartial, and none would be spared for favor or affection.2
] It is to be noticed how careful the assembly was to avoid mention of the acts ·of 1696, 1699, 1700, 1705, 1715, and 1717, for the taxation of the province as a whole, and in which the estates of the proprietor and lieutenant governor were expressly exempted.
2 Votes, iv, pp. 422-426.
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The governor, in response, asserted that the alleged distinc. tion between governor and landholder had no existence in law. Then, adopting a popular maxim, he said that the pro- prietors had no right to vote in the election of representa- tives, for they already had a voice in the legislature through. their deputies. Thus, from the very principles of the Eng- lish constitution, the assembly could have no power to tax. them as freeholders or fellow subjects. It assuredly could not have authority over those from whom it derived authority. The proprietors held the government and soil under the same. grant. The title to both was centered in the same persons,. and could not be separated or divided without destroying their actual power. The fact that the proprietors did not per- sonally govern was owing to no lack of a legal right so to do .. He maintained that in theory the king paid no taxes. For parliament to tax the crown directly would be a destruction of the king's government. The proprietors, therefore, as the repre- sentatives of the crown, were entitled to a like exemption. Finally, he stated that the entire property of the people was subject to the control of the legislature, and of that the gover- nor was an essential part.I
This last assertion of the governor brings up the question :: which branch of the legislature had the power to dispose of the public money? We have seen that in earlier enactments the governor and council were authorized to expend the sums voted, but were required to give an account of them to the assembly. In August, 1708, moreover, the assembly said,. " We do not pretend to direct the way and manner the gover- nor did or should dispose of those supplies ; yet we conceive it our business to inquire whether they are applied for [the] support of government."I After 1715, however, it as- sumed to itself the power of disposing of the public money .. Now, in 175 1, the proprietors had expressed the intention not to allow a currency or excise law to be passed, unless provis-
1 Votes, iv, pp. 429-433. 2 Col. Rec., ii, p. 416.
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ion was made in the act for the appropriation of the sums ac- cruing under it, or it was left to the governor and assembly jointly to direct how they should be used. But they did not immediately embody this in an instruction to the governor, for they had been told by Gov. Hamilton that, as such an in- struction might raise a violent commotion among the people, and be considered an attack on their liberties, it was a serious matter, and should not be proposed unless they were going to adhere to it. The wrath of the assembly would be un- bounded, and as it had a large amount of funds on hand, it could well afford to embark on a contest with the proprietors. As it had also the control of the office of treasurer," the inter- est on every new loan of the paper money increased its strength, and diminished its dependence on the governor, the proprietors, and the crown.2 At length, however, the propri- etors determined to insist upon their rights,3 and in May, 1752, sent Hamilton an instruction to the effect that the appropria- tion of public money should be subject to the joint direction of himself and the assembly.
In the bill offered in 1754 for a grant of £30,000 to the king, the house had named the treasurer, collectors and excise officers, though the right of appointing them belonged prop- erly to the executive. Besides, the trustworthiness of officials designated by the assembly might be as questionable as that of appointees of the governor. A constitutional principle was
1 In 1693 the treasurer was appointed by the governor ( Charter and Laws of Pa., p. 223). In 1696 and 1699 he was named by the assembly (pp. 255, 263, 281). In 1700, at the request of the assembly, the proprietor appointed him (Col. Rec., i, p, 576).
2 Penn MSS., Ofic. Corresp., v, T. P. to Hamilton, July 29, 1751 ; vv., March 18, 1752.
3 In 1757 it was declared, by vote, in the House of Commons, that the assembly of Jamaica had no right to raise and apply money without the consent of the gov- ernor and council, nor to appoint a person to receive and issue it. Such a claim, it was thought, was unconstitutional, and derogatory to the rights of the crown. P. L. B., v, T. P. to Hamilton, July 7, 1757.
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at stake, and the question was being fought out while many parts of the province were overrun by the Indians, and the people were agitated by reports of their atrocities. Seeing that, with regard to the appointment of the officers, he could not gain his point, Gov. Hamilton insisted that commissioners should be named in the bill to act with himself in disposing of the money. The assembly replied that the representatives of the people had the sole right to determine not only the sums to be raised for the crown, but the manner of raising them. The governor very properly rejoined that this power was not inherent in the house, and while he understood it to imply that no money should be levied from the people without their con- sent, he nevertheless had the privilege of exercising his judg- ment to approve or reject bills of supply. He asserted that the governors were invested with half of the legislative author- ity, and were equally concerned with the assembly to consult the ease, freedom, and welfare of the people. Hence they must have the right to rectify any mistakes likely to be com- mitted by the legislative branch. If the governor were so in- vested with a share of the legislative power, he certainly had discretionary authority to object to what he considered amiss; otherwise he would be merely an instrument to ratify the transactions of the assembly. But the house strenuously de- nied that the governor possessed any such privilege as he had claimed.1
Gov. Morris, his successor, also urged his right to amend bills for raising money. To the claim of the assembly that its powers in such a case were similar to those of parlia- ment, his reply was substantially as follows: "The con- stitution of England is of long standing, founded upon an- cient usage and ripened by time and the wisdom of ages to its present perfection. There the king, lords, and commons make up the supreme power, to each of which the constitu- tion has assigned particular and peculiar prerogatives, rights,
1 Votes, iv, pp. 312-316.
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and privileges, in order to keep up a proper balance and make them * *
* a check upon each other. The constitution of this province is founded upon certain royal and proprie- tary charters, being subordinate and no way similar to that of England, nor composed of the like constituent parts. Here the whole power is lodged in the governor and assembly, who have all along exercised equal legislative powers, each of them having a right to propose laws and to amend what is proposed by the other. Till, therefore, you can show that the constitu- tion of this province is similar to that of England, composed of the like parts, and that each of them have the like or similar powers and privileges, you can found no claim upon the usage of parliament for having your money bills passed without the governor's amendments." I
This opinion of the governor was fully endorsed by the proprietors, who also stated that no money should be ex- pended, except for some purpose specified beforehand by the governor. For if the governor and council, said they, did not have the management of operations in the field, to whom should the orders from the king be sent? In fact, they were repeatedly advised not to part with their right to direct the governor to amend money bills as he should see fit; and it was hinted in England that Pennsylvania had no government at all.2 But the pressure of circumstances forced the gover- nor to yield to the wishes of the assembly.3 Thereupon it made the concession that certain commissioners, usually seven in number and named in the act, should with the consent of
1 Votes, iv, p. 512.
2 Penn MSS., Offic. Corresp., viii, R. Peters to T. P., Sept. 22, 1756; Supp, Proc., vv. Dec. 8, 1758.
3 Toward the close of Gov. Morris' administration the proprietors informed him that he was no longer to insist upon joint disposal of the public money, but to "join with the assembly in all such measures by prudent methods" as might " conduce to the safety of the province and carrying the commands of the crown into execution." Penn. MSS., Offic Corresp., vii, Proprietors to Morris, Oct. 5, 1755.
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the governor dispose of the money in supporting troops, in giving supplies to distressed settlers and friendly Indians, in holding treaties with the latter, and in entering into contracts for the king's service. In the several acts passed between 1755 and 1762 the governor's participation in the disposal of the money is distinctly affirmed ; but in cases where a surplus existed, the assembly assumed the sole power of expending it.1
Resuming again the discussion of the taxation of the pro- prietary estates, we find that the distress of the people from the attacks of the French and Indians, which had alarmingly in- creased, especially after Braddock's defeat, were vividly de- picted to the assembly in the messages of the governor. That body was now determined to avail itself of the serious condition of affairs in order to carry its point. The bill for £60,000 to which allusion has been made, and which was presented in its first form in July, 1755, seemed to be aimed directly at the proprietors, for it levied a tax on the quit-rents and on unimproved, unsettled, and unprofitable land.2 More- over, the house inserted a clause by which the propriety of taxing the estates should be decided by the crown. Hence it was provided that, if at any time during the continuance of the act the crown should think fit to declare in favor of the pro- prietors,3 the tax, if assessed, should not be levied, or, if levied, . should be refunded, and an additional tax imposed on the people. Gov. Morris declared that the proprietary quit-rent was not liable to taxation.4 He showed also that the king
' Hall and Sellers, Laws of Pa.
2 P. L. B., iv, T. P. to Morris, Aug. 13, Oct. 4, 'and Oct. 26; and to Peters, Nov. 14, 1755.
3 The proprietors were not averse to a legal decision. Penn MSS., Supp. Proc., T. P. to Peters, Oct. 25, 1755.
4 The proprietors wrote to Morris that they would have preferred that in his amendments to the bill he had not confined his arguments to proprietary quit-rent, but had extended them to quit-rents in the other provinces as well, which, they stated, would have sounded much better in England. P. L. B., iv, T. P. to Mor- ris, Oct. 26, 1755.
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could not assent to parts of an act; but as the provision in the bill was tantamount to an application for a royal decision, he could not speak his mind plainly. In effect it gave an imme- diate legislative power to the crown, and implied an admission of the existence of such a power, and that it could be called into exercise when the safety of the people required it. But as there was no provision in the royal charter for the exercise of this power, there appeared to be a latent defect in the constitution.I The assembly then declared that, if the governor persisted in his opposition to the bill, it would request the king to remove him from office.2 At this juncture, in order to break the force of the argument which had been the chief apparent support of this bill, the proprietors directed that £5,000, which was more than ten times the amount that would be realized by a tax, should be paid into the public treasury from the arrears of the quit-rents. This was to be regarded, however, as a free gift, not as made in lieu of taxation, whatever might be the opin- ion of the assembly about the matter.3 Thereupon, Novem- ber 27, the governor signed the bill. It levied 6d per fon all real and personal estates, and a poll tax of ten shillings on all freemen who were not worth $30, except those who were employed in the king's service. The proprietary estates were exempted, but the £5,000 was to be paid immediately by the receiver general to the commissioners.4 As some owners of land whereon improvements had been made did not reside in the same county or district where the land was situated, and as it might therefore be difficult to collect the tax, it was provided that the tenant should pay it, and deduct it
1 Pa. Mag. Hist., iii, p. 24. 2 Votes, iv, pp. 500-507.
3 Penn MSS., Offic. Corresp., vii, Proprietors to Morris and to the assembly, Oct. 5, 1755 ; Votes, iv, 524.
+ " The £5,000 was an act of kindness, not a compact instead of a tax, and the enactment that the receiver general should pay it immediately is unjust. If the tenants do not pay their arrears, how can we pay ?" P. L. B., iv, T. P. to Physick Sept. 12, 1756.
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from his rent. Because the holding of located and unimproved land for speculative purposes forced many people to leave the province and settle where land could be more easily pur- chased, and because such land had, by the act of 1724, been exempted from taxation, it was enacted that a tax of from £5 to £15 per hundred acres should be levied thereon, according to value and location.1 Refusal or neglect to pay the amount assessed within thirty days should be punished by sale of the property. Persons who resided on lands to which they had no legal title were to give to the assessors accurate estimates of the property, and pay their taxes as freeholders. The procedure in collecting the tax was the same as that out- lined in the earlier laws, with the exception that the collectors should make their payments to the county treasurers,2 and they in turn to the provincial treasurer. Shortly after, as we have seen in the preceding chapter, a bill was passed to issue £4,000 in bills of credit to be redeemed from the yearly pay- ments made by the receiver general. Then, as the demands of the assembly grew more importunate, the proprietors ordered the receiver general, if he found it necessary, to sell some land, and to insist upon the prompt payment of arrears.3 Later, he was directed to borrow the money rather than to sell any of the proprietary domain.4
Morris finally grew tired of his controversy with the as- sembly, and early in 1756 resigned. The proprietors then sought for a military man who would be ready with his pen,5
1 The proprietors thought it fair that the tenants of leased lands should pay a tax proportionable to that levied on fee simple estates, but, on the ground that va- cant land was not taxed in England, they did not believe it should be assessed in Pennsylvania. Ibid., T. P. to Morris, Oct. 4 and 26, 1755.
2 Since 1696 these had been appointed by the assessors. Charter and Laws of Pa., pp. 257-8.
3 Penn MSS., Supp. Froc., T. P. to Peters, Oct. 4, 1755; Corresp. of the Fenn Family, R. Hockley to the proprietors, Sept. 19, 1756.
4 Penn MSS., T. P. to Peters, May 19, 1757.
5 Ibid., Supp. Proc., T. P. to Peters, Oct. 25, 1755.
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and chose Capt. William Denny. They directed him to make the English laws of taxation the basis of any bill for that pur- pose which might be submitted to him. The tax must be levied for no longer period than a year, and with regard to real estate must be laid upon specified houses or lands in the respective counties or districts. It should, moreover, be levied upon the true rental value only, and not upon the real value of the fee simple. The tax on personalty should be laid upon the annual interest or profit, and not on the whole. capital, while the complete method of assessing, collecting, and paying the tax must be particularly prescribed in the body of the bill, and not by reference to any other enactment. The true rent or yearly value of every estate in land or bonds should be ascertained by having the names of a sufficient number of the wealthiest inhabitants in every township inserted in the bill as commissioners, sworn or affirmed to do justice. In order that the character of the rents paid and their estimate might be properly ascertained, they should be ordered to compel all tenants to make a sworn statement before them. All unoccupied and unimproved lands, and all quit-rents, should be exempted. No land should be sold for the payment of taxes. No bill should establish a higher rate than one shilling to four shillings per pound. Lastly, the tenants of real estate should pay the tax, and deduct it out of the rent yearly payable to the landlord, provided such yearly rent amounted to at least twenty shillings." The pro- prietors stated that they were not on the footing of purchasers, for they believed their grant was paramount to the laws and constitution of the province. But they repeated their assertion of willingness to bear a just proportion of any tax which was necessary for the defence of the province. It must, however, be levied equally upon the lands of the inhabitants, and upon the proprietary manors or lands actually leased, either for lives or years, provided that the method as outlined in the in-
1 Penn MSS., P. L. B., iv, T. P. to Peters, May 8 and July 12, 1756.
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structions to the governor was carefully followed, and the tax paid by the tenant, and deducted from the sums due to the proprietors.1
When, in 1756, a bill for the grant of £100,000 to the king's use was laid before Denny, he suggested that a clause be inserted to defer taxation of the proprietary estates during that particular year, but that, when the method was fully adjusted,2 the proprietors should pay their quota of the present year's tax. By this plan the rights of neither party would be violated, and the proprietors would merely incur a debt for the tax, without impeding the public service.3 When the instructions from the proprietors were, at its request, laid before the assembly, its wrath was kindled, and it demanded, in the name of the king and the suffering people it represented, that the governor immediately give his consent to its measure, as he would answer to the crown for the ill consequences of his refusal. A subsequent bill for the levy of £100,000 and exempting the proprietary estates Denny thought it advisable to pass, though it was not free from all the faults adverted to.4
1 " What estates we have in the nature of other people's estates we do not desire to exempt from taxes, nor do we wish to lay a burden on any man that we would not bear our share of. If the people would do us justice in the constant payment of our quit-rents, we would on our part assist them on any great occasion when they want to defend the country, and lay a land tax for that purpose. The assembly should have made an application to us or employed persons to negotiate the affair. * They should not have meddled with our estate without our consent. * * We desire you will not continue to defend total exemption, for we wish to assist the public in proportion to our income." Ibid., T. P. to Peters, July 12, 1756. " Every man must see the injustice of charging us with refusing to assist in the defence of our country before we were asked to do it." Ibid., T. P. to Hamilton, Sept. 7, 1756. See also Votes, v, p. 21.
2 In January, 1756, Thomas Penn had suggested to Gov. Morris that the pro- prietary estates be assessed, not by the elected assessors, but by commissioners chosen by the governor and assembly jointly and named in the act. P. L. B., iv.
3 Penn MSS., Offic. Corresp., viii, Denny and Peters to T. P., Nov. 4, 1756.
4 Ibid., Supp. Proc., Denny to T. P., April 8, 1757; Votes, iv, pp. 680, 703 ; Hall and Sellers, Laws of Pa.
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Again, in April, 1758, the demand from England for men and supplies induced the assembly to offer Denny another bill for the levy of £100,000. He had been ordered by the proprietors to assent to an act of this character, provided it were similar to the one passed two years before. Hence he immediately struck out such parts as related to taxing proprietary property in the same method as the rest, or in any way except as levied on sur- veyed and appropriated land. After several sharp messages and answers, on April 22, the bill was passed in conformity with the governor's wishes, and with an exemption of the proprietary estates. In many respects the act was quite similar to its pre- decessors, especially with regard to the taxation of located, unimproved property ; but the growth of the province caused a few changes to be introduced in the methods of levying the tax.2 The assembly, however, lamented the unhappy neces- sity which compelled it to continue an exemption of the pro- prietary estates from their just proportion of taxes, and re- solved to send the bill to.Benjamin Franklin, who was then in England, so that he might lay it before the king and parlia- ment.3
The threatening attitude of the assembly caused the proprie- tors to request the opinion of the attorney general and solicitor
1 " We do not agree to this exception of our estates as in the previous bill with any desire to make an undue advantage of it, or to contribute less to the necessary defense of our country in time of war, in proportion to our incomes, than other people in it. If it shall appear, after we shall have agreed to a just method of tax_ ation, and the other points in difference with the house, on an examination of this affair, that what we have contributed is not as much in proportion to our income as what has been given by the people in general is to theirs, we shall very willingly make up the deficiency." P. L. B., v, Proprietors to Peters, Feb. 2, 1758.
2 Hall and Sellers, Laws of Pa.
3 Votes, iv, pp. 804-819. " We wish," wrote the proprietors to the council, Nov. 10, 1758 (P. L. B., vi), " that the assembly, instead of publishing volumes to traduce us, had by a representation laid before us a summary of grievances. Then, by the assistance of counsel, we might have come to some accommodation. We do not desire our estates should be defended without paying a reasonable proportion towards it."
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general concerning the power of the assembly to tax their es- tates. They replied that the legislature had no right to levy a tax on the proprietors without their own consent, and that they were as competent judges of the mode of taxing and of the methods of ascertaining the value of their estates as the assembly was of the property of its constituents. In time of war and for the defense of the country, however, they recom- mended that the proprietors consent to a taxation of both their rack and quit rents, but only on the proviso that an account of the amount of the tax should be rendered them by the as- sembly, and the tax paid by the tenant and deducted from his annual payments. The crown lawyers also declared that the £5,000, which the proprietors had already given, should be al- lowed as part payment of their tax, and that no tax should be levied on unprofitable. lands, on fines, or on purchase money.I This opinion left the proprietors in considerable doubt for a while as to what course they ought to pursue. At first they had believed that neither quit rents, nor rents reserved on leases for lives, were liable to taxation.2 Many persons in England, however, thought the proprietary estates consisted of farms at rack rents, and that, therefore, the proprietors should be taxed. But they claimed that their rents on farms were in a number of cases merely a quit-rent of a few shillings, which was scarcely worth the trouble to collect. They also stated that any taxation of quit rents would tend to lessen the power of the government.3 In 1756 they had declared that the quit-rents on lands granted by patent they would never allow to be taxed, for no imposition had ever been laid on the king's quit-rents.4 But in cases where land was granted in fee sim- ple for the annual payment of quit-rent only, they believed the
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