USA > Pennsylvania > History of proprietary government in Pennsylvania > Part 39
Note: The text from this book was generated using artificial intelligence so there may be some errors. The full pages can be found on Archive.org (link on the Part 1 page).
Part 1 | Part 2 | Part 3 | Part 4 | Part 5 | Part 6 | Part 7 | Part 8 | Part 9 | Part 10 | Part 11 | Part 12 | Part 13 | Part 14 | Part 15 | Part 16 | Part 17 | Part 18 | Part 19 | Part 20 | Part 21 | Part 22 | Part 23 | Part 24 | Part 25 | Part 26 | Part 27 | Part 28 | Part 29 | Part 30 | Part 31 | Part 32 | Part 33 | Part 34 | Part 35 | Part 36 | Part 37 | Part 38 | Part 39 | Part 40 | Part 41 | Part 42 | Part 43 | Part 44 | Part 45 | Part 46 | Part 47 | Part 48 | Part 49 | Part 50 | Part 51
1 Penn MSS., P. L. B., v, T. P. to Peters, July 5 and Dec. 8, 1758; Supp. Proc., T. P. to Peters, June 7, 1759.
2 Ibid., P. L. B., iv, T. P. to Morris, Aug. 13, 1755 ; Votes, v, p. 21.
3 lbid., T. P. to Peters, Nov. 14, 1755.
4 Ibid., May 8 and July 12, 1756.
455
IN PENNSYLVANIA
455]
tenant was the person properly chargeable with all taxes laid on the estate.I Still they decided to accept the opinion of the crown lawyers, and told the governor that the assessors should be entrusted with full power under the direction of the commissioners named in the bill to make inquiry into the quit- rents. He was forbidden, however, to pass any act for taxing fines, or purchase money. The proprietors believed, further, that the owners of unprofitable lands should petition against being included in any scheme of taxation. The exemption of their own estates of this description they thought was due to the fact that as grantees of the country "they were intentionally possessed of land that it was known could not be immediately settled, and therefore as not yielding any profit ought not to have any tax laid on it."2
At this point it may be well to show how uncomfortable was Gov. Denny's position. If he refused to obey the pro- prietary instructions, he would be liable to prosecution, while if he refused to obey the mandates of the assembly, his salary would be withheld. Proprietary governors thus had to be indigent or fond of controversy. In fact it had been a practice of the assembly to send to the governor favorite measures for his approbation, and at the same time attach to the bill a reso- lution appropriating his salary. When the governor refused as- sent his salary was of course withheld.3 He was nevertheless
1 Penn MSS., P. L. B. iv, T. P. to Hamilton, Sept. 7, 1756.
2 Ibid., v, T. P. to Peters, Sept. 8 and 30, 1758; vi, Feb. 10, 1759.
3 It was said that, in his instructions from Mrs. Penn, Keith was ordered to put the proprietary family to no expense, but to take his chances with the people, and secure what he could by prudent conduct. A Just and Plain Vindication of Sir William Keith, etc. Prudent conduct in his case must have meant perfect accord with the desires of the assembly. For " the revenue," said Keith, " is a free gift of the people's representatives to the acting governor, which they judi- ciously augment, lessen or withdraw annually, according to the expense which they observe he has been at in their service, and to the ease and satisfaction they receive from the justice of his administration." Votes, ii, p. 418. This view of the matter is well illustrated in the following message sent to Gov. Thomas by the assembly in 1743: " We assure the governor that we are of the opinion
456
PROPRIETARY GOVERNMENT [456
expected to live in a manner befitting his station. If he had not an independent income he was apt to fare poorly, besides being in a measure ostracised by society. The assembly con- stantly feared the effects of providing a permanent salary for the governor, or, as it stated, "the conversion of the occasional presents made by the house to the proprietary deputies " into a permanent salary, for thereby it would to some extent lose its cherished control. There seems to be no question that Denny was extravagant, and lived far beyond his means. When his circumstances became straitened, he was forced to rely on occasional fees for support. At his accession to office some of the friends of the proprietors feared that he might prove false to his trust.' Early in 1757, however, the proprie- tors learned that he had made some remarks that were scarcely befitting his station as governor. It was said that he had de- clared that the proprietors had deceived him, for they had given him assurances that he would receive £1,500 sterling per annum,2 or that they would make good what the assembly had given former governors in case his salary was withheld.3 Furthermore the governor had asserted that he would no
that government should be honorably maintained, and whenever he shall be pleased to give his assent to those bills we shall cheerfully make * * * provision for his support." Col. Rec., iv, p. 628. For other instances when the governor's salary was either paid or withheld, according as he passed or refused to pass cer- tain bills, see Col. Rec., ii, p. 292 ; Votes, ii, pp. 178, 213, 463; iii, pp. 72, 343, 377, 380, 384 ; iv, pp. 35, 106; v, p. 425 ; Penn MSS., Offic. Corresp., iii, Gov. Thomas to John Penn, Nov. 5, 1739, and Nov. 4, 1740; Corresp. of the Penn Family, R. Hockley to T. P., June 26, 1756.
1 Penn MSS., Corresp. of the Penn Family, R. Hockley to the proprietors, Nov. 2, 1756.
2 " I did state," wrote Thomas Penn to Mr. Peters, Nov. 8, 1757 (P. L. B., v) " that the assembly gave a present of £5co or £600, and that, with what was given by the Lower Counties and the perquisites of government, would equal £1500."
3 Thomas Penn wrote to Mr. Peters, July 31, 1754 (P. L. B., iii), "I do not approve of your suggestion to indemnify Gov. Hamilton in case the assembly should withhold his salary, for the governor is bound to carry our orders into exe- cution without it."
457
IN PENNSYLVANIA
457]
longer fight the proprietors' battles. He had kept himself aloof from the council, and had failed to consult it on several impor- tant occasions. He had assigned no reasons but instructions in refusing his assent to bills. He had asserted that the proprie- tors were at fault in neither being on the spot, nor allowing him to relax any of his orders. He had spoken as if he af- fected not to know the proprietors." He had talked of being appointed by the crown, and of leaving the proprietors to justify their instructions without giving himself any trouble about them. " He had behaved as if he was not in immediate dependence on the proprietors, and was not engaged to sup- port their interests and characters in Pennsylvania." Lastly, he was accused of surliness and an overbearing demeanor, a fact that had materially increased the intensity of his conflict with the assembly.2 Thereupon the proprietors requested two of their prominent adherents in the province, William Allen and James Hamilton, to keep a strict watch on the governor's move- ments, and report to them any culpable conduct on his part.3 They informed Denny at the same time that he had been very remiss in his correspondence, and that they hoped upon full inquiry to find that all rumors concerning his alleged miscon- duct were unfounded. If he felt dissatisfied with his position, they requested him to say so, in order that they might ap- point his successor.4 The proprietors then endeavored to persuade Mr. Hamilton again to accept the governorship, but he was not inclined to enter upon another series of contentions with the assembly.5 As no one else seemed desirous of the position, the proprietors were forced to continue Denny in office. Possibly with the hope of guarding against any treachery6 on the governor's part, they ordered the secretary
1 Penn MSS., Corresp. of the Penn Family, R. Hockley to T. P., July 2, 1757.
2 Votes, iv, p. 812. 3 Proprietors to Allen and Hamilton, July 4, 1757.
4 Ibid., to Denny. 5 Ibid., T. P. to Peters, May 13, 1758.
6 " The governor's desire of buying opponents gives room to imagine somewhat more. The wanting money for secret service is of the same stamp." Ibid., Nov. 14, 1757.
458
PROPRIETARY GOVERNMENT [458
to supply him with reasonable sums for his support, in case the license fees were insufficient.' About a year later, at his request, they promised that, if his salary should ever fall below £1,500 per year, they would make up the difference to him.2
On the other hand, Denny was beset by frequent requests from Stanwix, Amherst, and others to waive his instructions. Positive commands indeed were sent him by these generals to disregard his orders from the proprietors, if they interfered with the grant of supplies for the king's service. He was as- sured that his conduct would be represented to the ministry as justifiable, and that it would afford him all necessary pro- tection.3 The governor stated his quandary to the council. If he departed from his instructions he would incur the dis- pleasure of the proprietors, as well as prosecution on his bond to observe them. If he adhered to them, no sup- plies would be raised and no troops could be maintained, though the public need for them was great. In March, 1759, the assembly resolved to levy a tax of £100,000 on all estates. Denny, relying upon the advice of the council, replied that, if the £5,000 which they had given fell short of their due proportion, he knew the proprietors would make it up by consenting to a fair and equal taxation of the quit-rents and appropriated lands.4 Then the assembly began the pre-
1 Ibid., Aug. 13, 1757.
2 Penn MSS., Supp. Proc., T. P. to Peters, Sept. 8, 1758; P. L. B., vi, T. P. to Denny, Jan. 12, 1759.
3 Ibid., Offic. Corresp., viii, Denny to Holdernesse, July 12, 1757, ix, Stanwix to Denny, April 24 and June 15, 1759 ; Amherst to Denny, May 17, 1759; R. Hockley to T. P., April 2, and Denny to T. P., May 30 and June 21, 1759; Col. Rec., vii, p. 454; viii, p. 331. Stanwix, after the objectionable bill had passed, rather hypocritically denounced it as unjust, and offered to use his influence against its confirmation by the Privy Council. Col. Rec., viii, p. 356.
4 " In answer to Mr. Franklin's query whether we proposed to contribute in pro- portion only of the sums already given, or to those still necessary for the defense of the country, no doubt we mean to do both, providing a fair tax is laid, and the money disposed of by order of the governor or of the crown." P. L. B., vi, T. P. to Peters, Dec. 8. 1758.
-
459
IN PENNSYLVANIA
459]
paration of a bill providing for the full proportionable taxation of the proprietors, an allowance being made for the gift of £5,000. If it should be found that that exceeded the amount they would be required to pay under a proportionable levy, the excess should be repaid to them ; but if it fell short, the deficiency should be made good by taxation. Denny refused to approve of this unless commissioners were named in the bill. A number of messages then passed between the assembly and the governor, in which each party accused the other of lack of a generous public spirit. But finally he laid the bill before the council. In spite of vigorous objections from that body, he passed the measure, April 17, 1759.ª Among the provis- ions of the bill were these: In addition to their other duties the township assessors should draw up a detailed statement of all located lands belonging to the proprietors, of which the unimproved portions should be assessed according to value and situation. A proportional part of the £255,000 already assessed should be levied on their real and personal estates, "due regard being paid to their situation, kind, and quality." But no assessment should be made on the proprietary estates before the total of the several assessments reached £5,000. In order to ascertain the time when these assessments would amount to £5,000, and when the remainder of the proportion of the pro- prietary taxes should be collected, it was provided that the county commissioners should return copies of the assessments to the provincial treasurer, who should make an account between the proprietors and the public.2 As soon as the amount of the assessments exceeded £5,000, he should demand payment
1" The Governor by Mr. Secretary sent down the Supply Bill with a verbal message that his Honor will pass the same. * * * The House then taking into Consideration the Governor's Support * resolved that the Sum of £1,000 be allowed and given to the Honorable William Denny, Esq., Lieutenant Governor of this Province, for his Support for the current Year." Votes, v, p. 47.
2 In letters to Mr. Peters, July 5 and Dec. 8, 1758, and April 12, 1759 (Penn MSS., Supp. Proc.), the proprietors stated that the amount they had already given should be deducted from the general account of their tax.
460
PROPRIETARY GOVERNMENT [460
from the receiver general. In case that officer refused to pay within thirty days, the treasurer should inform the county commissioners of the fact. They were then to proceed by distress and sale of the located unimproved land, until satisfac- tion was obtained.
In his own defense the governor declared, that he felt him- self obliged to forward the service, and charged the council with having too much regard for the proprietors and too little loyalty to the king. It answered that his action was based, not so much on an overweening zeal for the public service, as on " other causes which were well known."I There appears to be no doubt that Denny was bribed.2 Several conferences were held by him with the speaker and various members of the assembly. At one of them a private agreement was reached, according to which not only this, but a number of acts seriously detrimental to the proprietors, were carried through. Of course the house aimed in this crisis to prevent the proprietors from making a strong opposition in England ; hence its movements were quite moderate till it was assured of the bills being confirmed by the crown. Denny also was confident that his position was secure. He had for the time. won the favor of the generals, and was the recipient of bounty from the assembly. He reminded it that he was under a bond of £5,000 to obey his instructions from the proprietors. Thereupon it resolved that, as he had passed laws granting aid to the king for the general defense of the colonies, and other laws very beneficial to the people of the province, and had done this against the advice of a majority of the council and the orders of the proprietors, and as all bonds and instructions which tended to abridge the exercise of the governor's discre- tion were contrary to the express terms of the royal charter, it
1 Col. Rec., viii, p. 357.
2 Penn MSS., Offic. Corresp., ix, R. Hockley to T. P., April 2, 1759; Frank- lin, Works, vii, p. 205; Speech of Joseph Galloway, 1764; " To the Freeholders and Electors of the Province of Pennsylvania," 1765.
461
IN PENNSYLVANIA
461 ]
would indemnify him, if the proprietors brought suit for the bond. Its purpose was that the validity of such instruc- tions might be legally tested. Orders to that end were then transmitted to the agents in London.' At first the proprietors had intended to sue Denny on his bond. As soon, however, as he gave up his position in the province,2 he was appointed to a high rank in the British army. This fact, together with the hostile attitude of the assembly and the subsequent agree- ment with its agents, caused the Penns to abandon the project.3
The proprietors believed that the assessors, if given unlimited power, would act with partiality, and were determined to con- test the act.4 They instructed the secretary to tell the asses- sors that, in the present instance, the proprietors had given no orders for the imparting of information about their estates. This would cause the tax officers to make personal inquiry of each individual freeholder or tenant, a proceeding that would take considerable time and prevent anything injurious being done. But, if the assessment had already been made, the receiver general was directed to inform the county commissioners that the proprietors did not think the act binding on them, because it had been passed without their consent. They were unwill- ing also that their lands should be sold to pay taxes. The money supposed to be due in fines or purchase, being not so secured to them that they could call it in at any time, ought not to be regarded, they thought, as money out on mortgage. It was not reasonable to tax both the estate and what was due
1 Votes, v, p. 68.
2 It appears that, after Mr. Hamilton refused to accept the governorship, the pro- prietors conferred with a young man named Greaves, but he made certain de- mands, to which they would not accede. When, however, Hamilton was informed of the opinion of the crown lawyers concerning the taxation of the estates, he agreed to assume once more the governorship. Penn MSS., P. L. B., vi, T. P. to Peters, April 12, 1759.
3 Ibid., T. P. to Peters, Oct. 13, 1759; to Peters and Denny, Jan. 12, 1759; Offic. Corresp., ix, to Wilmot, Nov. 23, 1760.
4 Penn MSS., T. P. to Peters, May 19, 1759, and March 8, 1760.
462
PROPRIETARY GOVERNMENT [462
upon it. At any rate they believed no more than the interest on such sums should be taxed. If, however, the books and papers of other persons were examined, they were willing that theirs should be so treated." But two months later they acknowledged they must submit to the tax, or have their es- tates sold. Thereupon they instructed the secretary to make as many objections as possible in appeals to the county com- missioners. "You are no longer to say," wrote Thomas Penn, "that we will not submit, but delay by appeal and ex- ceptions as other people do." But if the tax could not be evaded, then that officer should pay it by selling land, by bor- rowing, or by any other means that would secure the neces- sary amount.2
When the act was laid before the Board of Trade for its in- spection, the proprietors managed to secure the services of the attorney general and solicitor general in their behalf.3 The crown lawyers dwelt particularly on the invasion of the rights of the crown, notably through the refusal of the assembly to al- low the proprietors to share in the nomination of officers. The attorney general favored the repeal of the act as the course of action most consistent with the dignity of the crown, and at first the Board was inclined to agree with him.4 In its report to the Privy Council it reviewed the history of the case, showing how, an account of their gift of £5,000, the proprie- tors had been exempted from previous impositions. It stated the fact that, in order to quiet the prevailing discussion, the proprietors had permitted taxation of their estates, on the condition that the tax should be laid on objects properly taxable, and that equality in the amount and justice in the method of levy should be observed. It showed the impro- priety of the act, in that it not only taxed the estates for the supply then voted, but added a rate for each supply since 1755.
1 Penn MSS., P. L. B., vi, T. P. to Peters, June 28, 1759.
2 Ibid., Aug. 31, 1759. 3 Ibid., March 8, 1760.
4 Ibid., T. P. to Hamilton, Oct. 18, 1760.
463.
IN PENNSYLVANIA
463]
The Board expressed the opinion that this was in conflict with the royal prerogative exercised by the proprietors, and not con- sistent with natural equity and the laws of England. It thought that waste, unlocated, unimproved, and unsettled demesne lands were not legitimate objects for taxation, because they yielded no annual product.1 Such a tax, said the Board, even when levied on located, unimproved lands, was injurious to the owners, while the annual imposition varying from £5 to £15 per hundred acres, left room for partiality and injustice in as- sessment. The clause in the bill taxing land at large would affect only the proprietors, especially as the amount of the im- position, and the method of levying it, were left to the discre- tion of assessors. Again, in the ordinary course of levying a tax on individuals, the method .was, before proceeding to distress, to resort to the landlord and on his default to the tenant. In the case of the proprietors, however, resort was to be had directly to the receiver-general, and if he refused or neglected to act, sale should immediately follow without regard to the rights of the tenant. This was contrary to the laws of England, which did not subject lands to sale for non-payment of taxes. The proprietors, said the Board, had no vote in the choice of assessors, indeed not even a negative on those ap- pointed to dispose of their property, and so were not on a footing of equality with the commonest freeholder. If they appealed from the partiality of the assessors, it must be to commissioners over whom also they had no control. The as- sembly, independent of the governor, had assumed the man- agement and revision of the assessment, though this was prop- erly an executive function. The language of the statute by which it was exercised was ambiguous, while there was no body but the assembly that passed the act, which had the power to interpret it. The popular body, moreover, assumed the right to superintend the expenditure of the money, which again was properly an executive power. It pretended to give
1 Chalmers, Opinions of Eminent Lawyers, i, p. 265.
464
PROPRIETARY GOVERNMENT [464
the governor a share in directing such expenditures, but this was practically nullified by a clause providing that a majority of the seven commissioners, independently of the executive, could draw upon the loan office to fulfill the purposes of this and of other enactments. In addition, it had reserved to itself the sole right to nominate officers created by the act. Even though this power was constantly exercised by the assembly, it was none the less an encroachment on the execu- tive authority. The fact, also, that the proprietors were to receive their rents in currency, whatever might be the terms of their contracts, the Board thought was very unjust. The as- sembly through its counsel had urged that the money already issued would lose its credit if the act were annulled, and many innocent persons would suffer. The opinion of the Board on this point was that less injury would be done by the repeal of the act than by any other course, and that thereby a valuable precedent would be established. Were the act confirmed, a serious injustice would be done the proprietors, while the con- stitution would be violated and encroachments made on the prerogative. Therefore, after summing up the various argu- ments against the act to which reference has already been made, the Board at first recommended repeal. But on further consideration, and through the influence of Lord Mansfield,' it concluded to effect a compromise. Therefore the agents of the assembly, Benjamin Franklin and Robert Charles, agreed that, if the act in question were not annulled, they would undertake that the assembly should offer to the governor a bill which would contain six of the amendments alluded to in the report of the Board.2
These were as follows :
1 Penn MSS., P. L. B., vi, T. P. to Hamilton, Oct. 18, 1760.
2 " The agents assented to the engagement as the only mode of saving the act, which was of the utmost importance to the public service at that time, and they were never censured for the part they took, although the assembly refused to ratify what they did." Franklin, Works, vii, p. 251, Note.
465]
IN PENNSYLVANIA
465
I. "That the real estates to be taxed be defined with preci- sion, so as not to include the unsurveyed waste land belonging to the proprietaries.
2. That the located uncultivated lands belonging to the pro- prietaries shall not be assessed higher than the lowest rate at which any located uncultivated lands belonging to the inhabitants shall be assessed.
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.
4. That the governor's 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."I A careful inspection of these amendments will show that they were conditions upon most of which the proprietors had long insisted.2
In spite of the fears of the proprietors the tax appears, with one exception, to have been fairly levied.3 That exception was in Cumberland county. It seems that, in the lists of tax- able property delivered by the township assessors to the county commissioners and assessors, a quit-rent of 12 d. ster-
1 Col. Rec., viii, pp. 531 et seq. Confirmed by an order in council, dated Sept. 2, 1760, P. 557.
2 Contrary to the intimation given in Franklin ( Works i, pp. 253-4,) Thomas Penn, in a letter to Gov. Hamilton, Oct. 18, 1760 (P. L. B., vi), declared that he thought compromise was far better than repeal.
3 " Upon the whole, the tax does not seem great, and we by no means think it hard that we should supply such a one for the public service." Ibid., T. P. to Peters, March 8 and May 10, 1760.
466
PROPRIETARY GOVERNMENT [466
ling per acre had been placed upon all the land reported by the assessors as belonging to the inhabitants, i. e., 171,315 acres. The sum total of the quit-rent upon this, not for the current year but for the past five years, was charged with a tax of 6 sh. per £. Out of the whole tract, 34,943 acres were set down as patented, while the remainder was held without patent. The value of the unpatented land was estimated at £15, 10 sh. per hundred acres. But 5,000 acres near Carlisle were mentioned as appropriated proprietary land, 3,000 acres of which were rated at £100 per hundred acres, and the re- maining 2,000 acres at £25 per hundred acres. Then in the town of Carlisle itself 64 lots were set down as belonging to the proprietors, and were variously rated at from £8 to £15 each. A tract in a neighboring township was estimated at $75 per hundred acres, and annual interest was charged on the tax of 6 sh. per hundred acres, which was declared to have been pay- able on this since 1755. Hence in this county alone the pro- prietary tax amounted to £787, 10 sh. The secretary and the receiver general remonstrated with the commissioners and as- sessors, because of their unfair proceedings in reference to this land. They said that land which had not been confirmed to the grantees by patent was held by squatters, or simply by warrant and survey. As the squatters had no claim to the land, unless according to the law of the province they had held quiet possession of it for seven years, they paid little or no rent, and it would be unjust to tax the proprietors for quit-rents or purchase money due to them from such tenants as these. On lands that had been surveyed by warrant, it was evident, from the nature of the contract and the terms of the warrant, that no legal estate vested in the grantee until a confirmation was made by a return accepted at the secretary's office, and the issue of a patent in consequence. Till this was done, the agreement was simply executory. The quit-rent and purchase money due on such land were only nominal, and, as previously remarked, the payment of them depended on the free-will and
Need help finding more records? Try our genealogical records directory which has more than 1 million sources to help you more easily locate the available records.