The preface begins with saying, "That governor Denny (whose administration will never be mentioned but with disgrace in the annals of this province) was induced, by considerations to which the world is now no stranger, to pass sundry acts," &c. thus insinuating, that by some unusual base bargain, secretly made, but afterwards discovered, he was induced to pass them.
It is fit therefore, without undertaking to justify all that governor's administration, to show what those considerations were. Ever since the revenue of the quit-rents first, and after that, the revenue of tavern-licences, were settled irrevocably on our proprietors and governors, they have looked on those incomes as their proper estate, for which they were under no obligations to the people: and when they afterwards concurred in passing any useful laws, they considered them as so many jobs, for which they ought to be particularly paid. Hence arose the custom of presents twice a year to the governors, at the close of each session in which laws were passed, given at the time of passing: they usually amounted to a thousand pounds per annum. But when the governors and assemblies disagreed, so that laws were not passed, the presents were withheld. When a disposition to agree ensued, there sometimes still remained some diffidence. The governors would not pass the laws that were wanted, without being sure of the money, even all that they called their arrears; nor the assemblies give the money, without being sure of the laws. Thence the necessity of some private conference, in which mutual assurances of good faith might be received and given, that the transactions should go hand in hand. What name the impartial reader will give to this kind of commerce, I cannot say: to me it appears an extortion of more money from the people, for that to which they had before an undoubted right, both by the constitution and by purchase; but there was no other shop they could go to for the commodity they wanted, and they were obliged to comply. Time established the custom, and made it seem honest; so that our governors, even those of the most undoubted honour, have practised it. Governor Thomas, after a long misunderstanding with the assembly, went more openly to work with them in managing this commerce, and they with him. The fact is curious, as it stands recorded in the votes of 1742-3. Sundry bills, sent up to the governor for his assent, had lain long in his hands, without any answer. Jan. 4, the house "ordered, that Thomas Leech and Edward Warner wait upon the governor, and acquaint him, that the house had long waited for his result on the bills that lie before him, and desire to know, when they may expect it:" the gentlemen return, and report, "that they waited upon the governor, and delivered the message of the house according to order; and that the governor was pleased to say, he had had the bills long under consideration, and waited the result of the house." The house well understood this hint; and immediately resolved into a committee of the whole house, to take what was called the governor's support into consideration; in which they made (the minutes say) some progress; and the next morning it appears, that that progress, whatever it was, had been communicated to him; for he sent them down this message by his secretary: "Mr. Speaker, the governor commands me to acquaint you, that as he has received assurances of a good disposition in the house, he thinks it incumbent on him to show the like on his part; and therefore sends down the bills which lay before him, without any amendment." As this message only showed a good disposition, but contained no promise to pass the bills, the house seem to have had their doubts; and therefore, February 2, when they came to resolve, on the report of the grand committee, to give the money, they guarded their resolves very cautiously, viz. "Resolved, that on the passage of such bills as now lie before the governor, (the naturalization bill, and such other bills as may be presented to him during this sitting) there be PAID him the sum of five hundred pounds. Resolved also, that on the passage of such bills as now lie before the governor (the naturalization bill, and such other bills as may be presented to him this sitting) there be PAID to the governor the further sum of one thousand pounds, for the current year's support; and that orders be drawn on the treasurer and trustees of the loan-office, pursuant to these resolves." The orders were accordingly drawn; with which being acquainted, he appointed a time to pass the bills; which was done with one hand, while he received the orders in the other: and then with the utmost politeness [he] thanked the house for the fifteen hundred pounds, as if it had been a pure free gift, and a mere mark of their respect and affection. "I thank you, gentlemen (says he) for this instance of your regard; which I am the more pleased with, as it gives an agreeable prospect of future harmony between me and the representatives of the people." This, reader, is an exact counterpart of the transaction with governor Denny; except that Denny sent word to the house, that he would pass the bills before they voted the support. And yet here was no proprietary clamour about bribery, &c. And why so? Why at that time the proprietary family, by virtue of a secret bond they had obtained of the governor at his appointment, were to share with him the sums so obtained of the people!
This reservation of the proprietaries they were at that time a little ashamed of; and therefore such bonds were then to be secrets. But as, in every kind of sinning, frequent repetition lessens shame, and increases boldness, we find the proprietaries ten years afterwards openly insisting on these advantages to themselves, over and above what was paid to their deputy: "Wherefore (say they) on this occasion it is necessary that we should inform the people, through yourselves their representatives, that as by the constitution our consent is necessary to their laws, at the same time that they have an undoubted right to such as are necessary for the defence and real service of the country; so it will tend the better to facilitate the several matters which must be transacted with us, for their representatives to show a regard to us and our interest." This was in their answer to the representation of the assembly [Votes, December, 1754, p. 48.] on the justice of their contributing to Indian expences, which they had refused. And on this clause the committee make the following remark: "They tell us their consent is necessary to our laws, and that it will tend the better to facilitate the matters which must be transacted with them, for the representatives to show a regard to their interest: that is (as we understand it) though the proprietaries have a deputy here, supported by the province, who is, or ought to be, fully impowered to pass all laws necessary for the service of the country; yet, before we can obtain such laws, we must facilitate their passage by paying money for the proprietaries, which they ought to pay; or in some shape make it their particular interest to pass them. We hope, however, that if this practice has ever been begun, it will never be continued in this province; and that since, as this very paragraph allows, we have an undoubted right to such laws, we shall always be able to obtain them from the goodness of our sovereign, without going to market for them to a subject." Time has shown, that those hopes were vain; they have been obliged to go to that market ever since, directly or indirectly, or go without their laws. The practice has continued, and will continue, as long as the proprietary government subsists, intervening between the crown and the people.
Do not, my courteous reader, take pet at our proprietary constitution, for these our bargain and sale proceedings in legislation. It is a happy country where justice, and what was your own before, can be had for ready money. It is another addition to the value of money, and of course another spur to industry. Every land is not so blessed. There are countries where the princely proprietor claims to be lord of all property; where what is your own shall not only be wrested from you, but the money you give to have it restored shall be kept with it; and your offering so much, being a sign of your being too rich, you shall be plundered of every thing that remained. These times are not come here yet: your present proprietors have never been more unreasonable hitherto, than barely to insist on your fighting in defence of their property, and paying the expence yourselves; or if their estates must [ah! must] be taxed towards it, that the best of their lands shall be taxed no higher than the worst of yours.
Pardon this digression, and I return to governor Denny; but first let me do governor Hamilton the justice to observe, that whether from the uprightness of his own disposition, or from the odious light the practice had been set in on Denny's account, or from both; he did not attempt these bargains, but passed such laws as he thought fit to pass, without any previous stipulation of pay for them. But then, when he saw the assembly tardy in the payment he expected, and yet calling upon him still to pass more laws; he openly put them in mind of the money, as a debt due to him from custom. "In the course of the present year (says he, in his message of July 8, 1763) a great deal of public business hath been transacted by me, and I believe as many useful laws enacted, as by any of my predecessors in the same space of time: yet I have not understood that any allowance hath hitherto been made to me for my support, as hath been customary in this province." The house having then some bills in hand, took the matter into immediate consideration, and voted him five hundred pounds, for which an order or certificate was accordingly drawn: and on the same day the speaker, after the house had been with the governor, reported, "That his honour had been pleased to give his assent to the bills, by enacting the same into laws. And Mr. Speaker farther reported, That he had then, in behalf of the house, presented their certificate of five hundred pounds to the governor, who was pleased to say, he was obliged to the house for the same." Thus we see the practice of purchasing and paying for laws is interwoven with our proprietary constitution, used in the best times, and under the best governors. And yet, alas! poor assembly! how will you steer your brittle bark between these rocks? If you pay ready money for your laws, and those laws are not liked by the proprietaries, you are charged with bribery and corruption: if you wait a while before you pay, you are accused of detaining the governor's customary right, and dunned as a negligent or dishonest debtor, that refuses to discharge a just debt!
But governor Denny's case, I shall be told, differs from all these; for the acts he was induced to pass were, as the prefacer tell us, "contrary to his duty, and to every tie of honour and justice." Such is the imperfection of our language, and perhaps of all other languages, that, notwithstanding we are furnished with dictionaries innumerable, we cannot precisely know the import of words, unless we know of what party the man is that uses them. In the mouth of an assembly-man, or true Pensylvanian, "contrary to his duty and to every tie of honour and justice" would mean, the governor's long refusal to pass laws, however just and necessary, for taxing the proprietary estate: a refusal, contrary to the trust reposed in the lieutenant-governor by the royal charter, to the rights of the people, whose welfare it was his duty to promote, and to the nature of the contract made between the governor and the governed, when the quit-rents and licence-fees were established, which confirmed what the proprietaries call our "undoubted right" to necessary laws. But in the mouth of the proprietaries, or their creatures, "contrary to his duty, and to every tie of justice and honour" means, his passing laws contrary to proprietary instructions, and contrary to the bonds he had previously given to observe those instructions: instructions however, that were unjust and unconstitutional; and bonds, that were illegal and void from the beginning.
Much has been said of the wickedness of governor Denny in passing, and of the assembly in prevailing with him to pass, those acts. By the prefacer's account of them, you would think the laws, so obtained, were all bad; for he speaks of but seven, of which, six, he says, were repealed, and the seventh reported to be "fundamentally wrong and unjust," "and ought to be repealed, unless six certain amendments were made therein[60]." Whereas in fact there were nineteen of them, and several of those must have been good laws, for even the proprietaries did not object to them. Of the eleven that they opposed, only six were repealed; so that it seems, these good gentlemen may themselves be sometimes as wrong in opposing, as the assembly in enacting laws. But the words, "fundamentally wrong and unjust," are the great fund of triumph to the proprietaries and their partizans. These, their subsequent governors have unmercifully dinned in the ears of the assembly on all occasions ever since; for they make a part of near a dozen of their messages. They have rung the changes on those words, till they worked them up to say, that the law was fundamentally wrong and unjust in six several articles (Governor's Message, May 17, 1764) instead of "ought to be repealed, unless six alterations or amendments could be made therein." A law, unjust in six several articles, must be an unjust law indeed. Let us therefore, once for all, examine this unjust law, article by article, in order to see, whether our assemblies have been such villains as they have been represented.
The first particular in which their lordships proposed the act should be amended was, "That the real estates to be taxed, be defined with precision; so as not to include the unsurveyed waste land belonging to the proprietaries." This was at most but an obscurity to be cleared up. And though the law might well appear to their lordships uncertain in that particular, with us, who better know our own customs, and that the proprietaries waste unsurveyed land was never here considered among estates real, subject to taxation; there was not the least doubt or supposition, that such lands were included in the words "all estates, real and personal." The agents therefore, knowing that the assembly had no intention to tax those lands, might well suppose they would readily agree to remove the obscurity. Before we go farther, let it be observed, that the main design of the proprietaries in opposing this act was, to prevent their estates being taxed at all. But as they knew, that the doctrine of proprietary exemption, which they had endeavoured to enforce here, could not be supported there[61], they bent their whole strength against the act on other principles to procure its repeal, pretending great willingness to submit to an equitable tax; but that the assembly (out of mere malice, because they had conscientiously quitted quakerism for the church!) were wickedly determined to ruin them, to tax all their unsurveyed wilderness-lands, and at the highest rates: and by that means exempt themselves and the people, and throw the whole burden of the war on the proprietary family. How foreign these charges were from the truth, need not be told to any man in Pensylvania. And as the proprietors knew, that the hundred thousand pounds of paper-money, struck for the defence of their enormous estates, with others, was actually issued, spread through the country, and in the hands of thousands of poor people, who had given their labour for it; how base, cruel, and inhuman it was to endeavour, by a repeal of the act, to strike the money dead in those hands at one blow, and reduce it all to waste paper, to the utter confusion of all trade and dealings, and the ruin of multitudes, merely to avoid paying their own just tax—Words may be wanting to express,—but minds will easily conceive,—and never without abhorrence!
The second amendment proposed by their lordships was, "That the located uncultivated lands, belonging to the proprietaries, shall not be assessed higher than the lowest rate, at which any located uncultivated lands belonging to the inhabitants shall be assessed." Had there been any provision in the act, that the proprietaries' lands, and those of the people, of the same value, should be taxed differently, the one high, and the other low; the act might well have been called in this particular fundamentally wrong and unjust. But as there is no such clause, this cannot be one of the particulars on which the charge is founded; but, like the first, is merely a requisition to make the act clear, by express directions therein, that the proprietaries' estate should not be, as they pretended to believe it would be, taxed higher in proportion to its value than the estates of others. As to their present claim, founded on that article, "that the best and most valuable of their lands, should be taxed no higher than the worst and least valuable of the people's," it was not then thought of; they made no such demand; nor did any one dream that so iniquitous a claim would ever be made by men, who had the least pretence to the characters of honourable and honest.
The third particular was, "That all lands, not granted by the proprietaries within boroughs and towns, be deemed located uncultivated lands, and rated accordingly; and not as lots." The clause in the act that this relates to is, "And whereas many valuable lots of ground within the city of Philadelphia, and the several boroughs and towns within this province, remain unimproved; Be it enacted, &c. That all such unimproved lots of ground within the city and boroughs aforesaid, shall be rated and assessed according to their situation and value for, and towards raising the money hereby granted." The reader will observe, that the word is, all unimproved lots; and that all comprehends the lots belonging to the people, as well as those of the proprietary. There were many of the former; and a number belonging even to members of the then assembly; and considering the value, the tax must be proportionably as grievous to them, as the proprietary's to him. Is there among us a single man, even a proprietary relation, officer, or dependant, so insensible of the differences of right and wrong, and so confused in his notions of just and unjust, as to think and say, that the act in this particular was fundamentally wrong and unjust? I believe not one. What then could their lordships mean by the proposed amendment? Their meaning is easily explained. The proprietaries have considerable tracts of land within the bounds of boroughs and towns, that have not yet been divided into lots: they pretended to believe, that by virtue of this clause an imaginary division would be made of those lands into lots, and an extravagant value set on such imaginary lots, greatly to their prejudice. It was answered, that no such thing was intended by the act: and that by lots was meant only such ground as had been surveyed and divided into lots, and not the open undivided lands. If this only is intended, say their lordships, then let the act be amended, so as clearly to express what is intended. This is the full amount of the third particular. How the act was understood here, is well known by the execution of it before the dispute came on in England, and therefore before their lordships' opinion on the point could be given, of which full proof shall presently be made. In the mean time it appears, that the act was not on this account fundamentally wrong and unjust.