USA > Pennsylvania > History of proprietary government in Pennsylvania > Part 40
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choice of the tenant. To tax an interest or estate so uncertain as this was pronounced inequitable. And it was further argued that, even if the purchase money due on such lands could be considered as a debt to the proprietors, which they might at any time sue for and recover, it would not be liable to taxation, because the tenants from whom such was due were themselves taxed for the land. By such a plan a tax would be paid first on the land, and, secondly, on the money paid for it, or for its use. Again, there could be no justice in taxing the proprietors for land that was held by squatters, and in seeking to do this the assessors had acted contrary to the law of 1755, which provided that all occupiers of land without title should pay the tax. But, in spite of this appeal from the agents of the land office, the amount of the tax levied upon the proprietors in the county was lessened by only a little more than one-fourth.I Still, in March, 1761, shortly after the method of assessing the tax in Cumberland county had been thus ex- posed,2 a committee appointed by the assembly to inquire into the state of proprietary taxation reported that no part of the unsurveyed waste lands belonging to the proprietors had been included in the estates taxed, and that in several counties only a part of the located but uncultivated lands of the proprietors had been assessed, and even then at rates no higher than those at which the land of other parties was taxed. It was also re- ported that in towns and boroughs, except in a few cases, land which had not been granted by the proprietors was exempted, and, when taxed, it was at rates as low as those levied on any of the land which had been granted in the town. It was also claimed that, estimating the tax rate at 18 d. to the £, the sum total levied on the proprietary lands in the year was only £566,
1 Penn MSS., Pa. Land Grants, Proprietary Taxes in Cumberland county.
2 The commissioners and assessors of Cumberland county sent to the assembly an address, vindicating themselves to the satisfaction of that body against the charge of unfairness in assessment. The address, however, is not published in the minutes. Votes, v, p. 119.
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4 sh., 10 d., while the sums collected from the inhabitants would be £27,103, 12 sh., 8 d. The conclusion arrived at by the committee was that no injustice had been done the proprietors, and, if anything, their lands had been taxed lower than those of the colonists.2
In ignorance of the decision of the Board of Trade, and urged by letters from Pitt and Amherst, the assembly resolved to raise by a land tax of 18 d. per £, the sum of £100,000 with which to furnish 2,700 men for the war. Gov. Hamilton in his reply criticised the ambiguity of the bill, its partisan commis- sioners, its arbitrary disposition of the money, the suppression of the declaration of the secretary and the receiver-general concerning the injustice in Cumberland county, which might readily be repeated if he passed the bill in the form in which it was presented to him. After some controversy, however, on April 12, 1760, he consented to do it on account of the im- perative need of aid for the frontiers, and of money to pay the troops.3 The proprietors were advised not to endeavor to have the bill repealed, for the assembly might then attempt to pass a worse measure than its predecessor had been.4 But they were not in need of such advice, for they stated that they would make no complaint of the amount of their tax, and were very willing to pay it, though in order to secure fairness they desired that a more definite rule in making assessments should be established.5 In September, 1760, however, they directed
] Taxation of the proprietary estates at 6d., 12 d., and 18 d. per £ from 1760 to 1769 :
1760-£2173 18 sh. 314 d. 1765-£692 10 sh. 3d. 1761-£ 563 5 sh. 912 d. 1766-£736 8 sh. od. 1762-£ 552 6 sh. 712 d. 1767-£873 14 sh. 1034 d.
1763-£ 580 15 sh. II 12 d. 1768-£920 4 sh. 8 d. 1764-£ 593 II sh. 5 d. Votes, vi, p. 174.
2 Ibid., v, p. 156.
3 Ibid., pp. 11I-114; Hall and Sellers, Laws of Pa.
4 Penn MSS., Private Corresp., v, W. Allen to T. P., March 25, 1761.
5 " I desire nothing more than to have such parts of the estates of my family
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Gov. Hamilton to pass any act for the taxation of their estates which should be in accordance with the amendments made by the Board of Trade" to the supply bill of April, 1759. But as soon as the report of the Board arrived in Pennsylvania, the assembly declared it never had any intention to tax the unlo- cated lands of the proprietors, or to violate the contracts made with them for the payment of their quit-rents. It asserted also that, as the act would soon expire, the Penns would not suffer injury.2 The insincerity of these statements is well illustrated by the character of two other bills offered later for a levy of £30,000 and $70,000. In these practically all the faults con- demned by the Board of Trade appear, while it was also pro- vided that the proprietors should receive their rents wholly in paper money. The assembly, obstinately bent upon the ac- complishment of its purposes, refused to reconsider the bills, or to prepare new ones.3 Gov. Hamilton, who had already expressed a wish to retire, now resigned his office, and in 1763 John Penn was appointed as his successor.
As the assembly had done nothing to alter or amend the act of 1759, Gov. Penn was ordered by the proprietors to persuade it to do so and thus to fulfill the agreement of the agents. To this the assembly again refused to consent, on the ground that the proprietors had received no injury. On January 21, 1764, however, it admitted that, by an exami- nation of the report of a committee appointed to consider the returns of the assessors for the various counties, the existing method of assessing property was irregular and operated unfairly. Therefore, provisions intended to secure greater precision and fairness were inserted in a bill for the raising and
taxed on the same calculation with the estates of the people. It would be knight errantry to desire a more exact calculation in order to pay more in proportion, and to pay less would be extremely scandalous." Penn MSS., P. L. B., vi and vii, T. P. to Hamilton, June 6, 1760, and Aug. 7, 1761.
1 Ibid., Sept. 5, 1760.
2 Votes, v, p. 158.
3 Ibid., pp. 173, 212.
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appropriation of £55,000 for the king's use. The governor objected to the measure on the ground that it contained pro- visions inconsistent with the amendments to the bill of 1759. Two instances of this he cited, viz .: that it taxed located un- cultivated lands and lots in cities and boroughs, and that it gave to the assembly exclusive control of the money raised. The governor and the assembly also differed as to the meaning of the words used by the Board of Trade in its agreement with the agents. The assembly desired to know whether he in- terpreted the stipulations respecting located uncultivated lands to mean that the best and most valuable tracts belonging to the proprietors should be taxed no higher than the poorest and least valuable of the lands owned by the people. He replied that the incorporation of the precise language of the agree- ment in the bill would be the best and most definite means of conforming to the wishes of the Board of Trade. The as- sembly in response claimed that the amendments made by the Board were merely heads of provisions which had already been substantially incorporated in the bill, and that what the Board meant was, that the located uncultivated lands of the proprietors should be taxed no higher than the lowest rate at which any located uncultivated lands under the same circum- stances of situation, kind, and quality belonging to the inhab- itants, should be assessed.1 But, after several messages pro- testing against the governor's construction of the amendments, it resolved that the necessity for raising money for defense was so great that it would again in this instance waive its import- ant rights relating to money bills and agree to such an alter- ation of the act as the governor proposed. At the same time it remonstrated against the violence thereby done to the con- stitution, and declared that the act ought never to be used as a precedent.2 In the bill the method of assessment was defi- nitely established. The waste and unlocated lands of the pro- prietors were exempted from taxation, while their located and
1 Votes, v, pp. 328-333.
2 Ibid., p. 350.
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uncultivated lands were not to be assessed higher than the lowest rate at which any located uncultivated lands belonging to the inhabitants should be taxed. Moreover, all their lands situated within boroughs and towns should be regarded not as lots, but as located uncultivated lands, and should be taxed accordingly. Frontier inhabitants, by reason of their recent losses in war, were to be exempted from taxation for two years. Lastly, provincial commissioners of appeal were appointed from among the county commissioners.I
As far as the actual work of assessment was concerned, the act was not to go into operation till 1770. Hence no injustice had been done when the assembly in the height of its wrath against the proprietors received from the governor, January 30, 1765, the following communication, based on a letter he had already received from his principals :2 "The proprietaries have
1 Miller, Laws of Pa.
2 " Finding that practically the only point of difference between you and the assembly is concerning the taxing of located uncultivated lands, and because we desire to put an end to all disputes, inasmuch as on consideration of the words of the order of council, they would appear to bear the construction the assembly puts upon them, we consent, as it is a matter that regards our own property only, that you shall give your assent to a bill for laying a tax on our located uncultivated lands at the lowest rates any located uncultivated lands belonging to the inhabi- tants, under the same circumstances of situation, kind and quality are taxed at. We desire, however, that the assembly comply with the rest of the agreement. We give way with regard to our own tax, not through fear of the application of the assembly to the crown, but because there does appear an equity in it." P. L. B., viii, Proprietors to John Penn, June I and 8, 1764.
" As to our departing from what you call the stipulation," wrote Thomas Penn to Dr. William Smith, Oct. 12, 1764, "we had determined to do it before we met Mr. Franklin on the affair, and although it might be and was intended at the time to be as you think, yet at this distance of time no person here looks upon it in any other light than that the assembly contended for."
Again, the following day, the same proprietor wrote to the governor, "We believe the tax act to be unjust, but as ours and the people's estates are on the same foot- ing, and as the people do not complain, we certainly shall not. For any com- plaints we might make against it, while the people who are as much aggrieved remain silent, would meet but a very unfavorable reception. If the people peti- tion the crown after having petitioned the assembly against it, we shall join with them."
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signified to me that they do not wish or desire that their lo- cated uncultivated lands in this province should be taxed in any other manner than at the lowest rate at which any such lands · belonging to the inhabitants, under the same circum- stances of situation, kind and quality, should be assessed. I took care to make known the proprietaries' sentiments on this subject to the provincial commissioners of appeal in the sev- eral counties, desiring them to publish the same to their re- spective commissioners and assessors. This matter having been laid before the commissioners and assessors for the county of Philadelphia, they have informed me that, on con- sidering the late act for granting £55,000 to the king's use, they cannot, from the express tenor thereof, and the qualifica- tions they have taken, tax the located uncultivated lands of the proprietaries in the above mode, and that a new law is necessary to enable them so to do. As therefore they cannot put the construction on the words of the royal order inserted in the said act, which the late assembly contended for, and which the proprietaries are willing to submit to, I recommend it to your consideration, whether it is not expedient to frame a supplement to the said act to amend it in this particular."I " To prevent any objections that possibly might arise in asses- sing that part of the proprietary estate under the act of assembly granting £55,000 to the king's use, and anything in a judgment or decree of his majesty in council notwithstand- ing," supplementary acts for that purpose were passed in Sep- tember, 1766, and January, 1774.2
The last utterance of the proprietors on the subject of taxa- tion is to be found in a letter dated December 7, 1768,3 and addressed to Mr. Hockley, the receiver general and later the auditor general. "We are sorry," wrote Thomas Penn, "that Mr. Allen makes such speeches about our taxes, as it
1 Votes, v. p. 402. Col. Rec., ix, p. 237.
2 Miller, Laws of Pa.
3 P. L. B., ix.
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cannot answer any good purpose." The proprietors were thus forced to yield to the demands of a people conscious of their own strength. Their policy ceased to be public and govern- mental, and became dominated more and more by considera- tions of private interest.
CHAPTER XI
PROPRIETARY INSTRUCTIONS, AND THE POWERS OF THE DEPUTY GOVERNOR
IN the preceding chapters the history of several of the more important conflicts which occurred in Pennsylvania has been reviewed. Their origin may often be traced directly or indi- rectly to the instructions issued by the proprietors, and to differences of opinion concerning the degree and scope of au- thority possessed by the deputy governors. Proprietary in- structions, like royal instructions, had reference to two classes of acts, administrative and legislative. In other words, they had to do in the former case with the ordinary daily work of appointing officers, executing the laws of the province, and realizing the policy of the crown and of the proprietor in refer- ence to it ; in the latter, with the prevention of what was deemed unwholesome legislation. Administrative instructions were the customary expression of the ordinance power of the pro- prietor, the power which he possessed as chief executive of the province. When he was personally residing in the province, he acted as its governor, and with the advice of the council is- sued these ordinances directly. When he was absent, they had to be issued to and through the lieutenant governor. The relation borne by the lieutenant to the proprietor was that of agent to a principal. By his commission he was bound to obey the expressed will of his superior. After 1708 he was
1 " As far as instructions are concerned, we have no desire to claim any powers to which we have no legal right, nor to do any act that shall give up the powers intrusted in our hands for the government and protection of the people." Penn MSS., P. L. B., v, T. P. to Chew, Dec. 12, 1757; iv, to Peters, May 8, 1756.
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under a bond to render this obedience.1 It was only through the maintenance of such a relation that the absent proprietor could exercise the powers and enjoy the rights conferred upon him by the royal charter. In the domain of administration this fact was rarely if ever disputed. Upon a fair construction it would seem that the instructions possessed full validity, save where they were inconsistent with the laws of England ; with orders or instructions affecting Pennsylvania which had been issued by the crown through its minister, or through any one of its administrative boards ; with acts of the provincial legislature, which had not been rejected by the crown or the proprietor during the time legally allowed therefor; and with sound reason, as interpreted by the proper judicial authority in Eng- land. But when it came to the use of instructions to influence legislation, and in close connection therewith the exercise of the right of dissent by the proprietor, higher interests were touched, and controversy arose. Now the fact that under the royal charter all enactments of the Pennsylvania legislature must be laid before the king in council for his examination and possible disapproval, did not theoretically exclude the pro- prietor from the right of expressing his assent2 or dissent.3 He possessed that right as truly as did the proprietor of Maryland, who was not compelled to lay the laws of his prov-
1 Charles Gookin, who was governor from 1709 to 1716, was under a bond of £2,000 or more to observe the instructions ( Penn and Logan Corresp., ii, p. 323); while that of Sir William Keith, who succeeded him as governor, 1716-1726, was £1000. Votes ii, p. 421. When proprietary interests became more complex, however, it was advanced to £5,000. At the same time, the crown required from the governor a bond of {1,000, as a pledge that he would obey and enforce the laws of trade.
2 " No bill can pass without our consent," wrote Thomas Penn to Mr. Peters, Sept. 28, 1751 (P. L. B., iii).
3 In reference to the whole question of assent and dissent, the rule of law seems to have been that neither the express assent of the proprietor, nor even that of the crown, was necessary to give validity to an act of assembly, of which a deputy governor had approved. Chalmers, Opinions of Eminent Lawyers, i, pp. 306-7.
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ince before the king." But practically it reduced the effect of his action to a nullity. If the crown disapproved of an act, that was the end of it; the expression of assent by the pro- prietor would then avail nothing, while the expression of dis- sent by him would be only an echo of what the crown had de- clared. On the other hand, if the crown failed to express its disapproval within six months after the act was presented, it would remain in full force. This could not be changed by the dissent of the proprietor, while his assent would add nothing to the validity of the law.
By the terms of the royal charter we have seen that the pro- prietor possessed legislative power. Its language was : " We do grant free, full and absolute power to him, and to his heirs, and to his, and their deputies and lieutenants, to ordain, make, and enact, and make his and their seals, to publish any laws whatsoever," etc. But this grant was limited by the further clause, "by and with the advice, assent, and approbation of the freemen of the country, or the greater part of them, or of their delegates." This excluded legislation directly by the proprietor, and left him the power to recommend through the deputy governor the passage of certain measures ; to forbid him to give his assent to others ; to express the proprietary dissent, however slight its weight might be, in case where a governor had approved of an obnoxious measure. In the first two cases the function could be exercised only through instructions to the deputy governor. The relation between the proprietor as principal, and the deputy as agent, would thus be employed for the purpose of preventing or encouraging legislation. The opinions of the assembly on this head are admirably set forth in the pamphlet written by David Lloyd, and entitled, “A. Vindication of the Legislative Power." At the outset it may
1 " The governor of Maryland gives no bond except to observe the laws of trade, because Baltimore repeals all laws made in Maryland that he does not approve. If the assembly will allow us that power, we shall not desire to have any bond given us." P. L. B., v, T. P. to Peters, July 9, 1757.
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be said that the assembly believed that, when the deputy gov- ernor had received his commission from the proprietors, he was endowed with all the governmental powers of the proprie- tors. In other words, when the proprietors had given the governor his commission, their power rested in him and was to be exercised entirely at his discretion. Hence, whenever the right of the proprietors to issue instructions binding on the governor was contested, that officer was considered account- able to no authority but the crown. This explains why any opposition to this opinion on the part of the proprietors was met with threats of appeal to the king. Lloyd argued that a deputy has full power to do anything his principal may do ; for a man could not be a deputy to do a single act, nor could a deputy, properly speaking, have any less power than his principal. Therefore, if the principal should force him to agree not to do anything which he himself might do, such an agreement would be void." He then proceeded to declare that the power of legislation, which was granted by charter to William Penn, his heirs, deputies, and lieutenants, by and with the assent of the freemen, was originally vested in every free- man, a right which needed no grant or charter from the pro- prietor to confirm. By the frame of government of 1701, he thought, it was plain that the entire legislative power was lodged in the governor and the representatives of the people. The governor might have a council to advise and assist him in legislation, but no more. It was impossible, then, he argued, for the proprietor by instruction or any other act, except the appointment of a successor or personal assumption of the gov- ernorship, to divest the governor of his right to govern in all cases. Again, if the governor gave any bond or entered into
1 In support of this argument he cited several cases, notably a decision in the court of King's Bench, 13 William III. (Parker vs. Kett, i, Salkeld, p. 95), which declared that deputy sheriffs were by law liable to execute all process, else just- ice would be denied. The analogy between a sheriff and the proprietor of a province is absurd on the face of it, and needs no refutation.
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any contract to observe instructions that abridged or restrained the authority granted by his commission to exercise the powers of government, such a bond or contract would be absolutely void. He asserted that it would be an absurdity to allow persons represented to control the acts of their agents in those matters which the other branch of the legislature might think reason- ably proposed. But, if the governor was under security to obey directions given in the royal charter, the security was perfectly valid in law. Then he propounded the question, if the proprietor by his frames of government did not intend to be bound by the rules of the law, i. e., not to lay his deputy under instructions-whether he would not thereby show him- self unworthy of the trust and confidence reposed in him by the king. He thought the royal charter made the people sharers with the proprietor in all rights, liberties, and privi- leges, but without the slightest encroachment on his authority. Lastly, he believed that the real design of the king's grant could not be achieved unless proper encouragement should be given to the people of the province-people who had never urged or willingly insisted on any diminution of rights, royal- ties, or powers which justly belonged to the proprietor.I
Lloyd was probably sincere enough in his opinions, but his eyes were blinded by the usual popular prejudice. The scope of the reserved proprietary rights according to his idea was to be determined, not by the proper judicial tribunal in Eng- land, but by whatever construction seemed best to the colonial assembly. He seems to intimate that the governor was pro- vided by the royal charter with all the powers requisite for legislation. The function of the proprietor was merely to de- signate the person who should exercise the powers. But if the proprietor had no control over his deputy, by what right
1 Votes, ii, pp. 444-447. Similar views may be found in Sir William Keith's " Defense of the Constitution of the Province of Pennsylvania" . (pp. 433-439); " Remonstrance to Mrs. Penn" (p. 441); letter from Keith to Mrs. Penn and Joshua Gee (p. 416); and " A Just and Plain Vindication of Sir William Keith."
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could he remove him? That surely is the exercise of supreme control. The issue of instructions affecting legislation was a necessary feature of the proprietary system of government, and was as consistent with the spirit of the royal grant as was the issue of those in the domain of administration. If it were not so, the deputy in accepting or rejecting bills, and in his whole conduct with reference to legislation, would be acting independently of his principal, the proprietor. This would be inconsistent with the very nature of his office, and of the sys- tem within which he worked. The pertinence of Lloyd's remarks, moreover, is assuredly doubtful, when he asserts the right of the king to enforce obedience to instructions by a bond actionable at law, but denies the same right to the pro- prietor, who alone was entrusted with the king's prerogative, and therefore entitled to the exercise of the rights it im- plied within the limitations imposed by charter. Through the royal patent the grant of powers was made to the proprietor, and he alone was held responsible for what occurred in the province. How could that be possible if the control of the proprietor over the deputy did not extend to every department of the latter's activity ? Indeed, there is no indication that the proprietors ever intended to leave their deputies independent of control. But, with all the attempts to safeguard their pre- rogatives, we have seen that they were forced to succumb to the bribery of Denny. Of what real value then were instruc- tions, if a hostile assembly offered the governor full indemnifi- cation for their violation ?
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