USA > Delaware > Minutes of the Council of the Delaware state from 1776 to 1792, V 1 > Part 16
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Adjourned till Monday morning, 10 o'clock.
MONDAY, May 4th, 1778. 1
The Council met, but a quorum of the members not attending, the Council adjourned till to-morrow morning, 10 o'clock.
TUESDAY, A. M., May 5th, 1778.
The Council met. Present all the members, except Messrs. Hyatt and Jones.
Mr. Craghead, a member from the House of Assembly, attend- ing, was admitted and returned to the Chair the resolutions of the Council respecting the procuring a supply of arms and ammuni- tion, &c., concurred in by the House of Assembly. Also the resolutions of the Council respecting the opening of subscriptions for the loan of money on Continental Loan-Office Certificates, concurred in by the House of Assembly ; and also the resolutions of the Council for completing the Delaware Regiment, with the concurrence of the House of Assembly thereto.
The same member likewise delivered to the Chair the Militia bill and the amendments proposed thereto by the Council ; some
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whereof the House of Assembly have rejected, and to others they have agreed, with an additional amendment proposed thereto by the House of Assembly, and the following message, to wit :
"Gentlemen :
"The House of Assembly, having considered the amend- "ments proposed by your honorable House to the act entitled " 'An act for establishing a Militia within this State,' do agree to "many of them, but cannot approve of all, the House still being "of opinion that it is necessary to have two sub-lieutenants as "well as one lieutenant in each county to carry into due execu- "tion the Militia law, have therefore rejected the Ist, 2d, 3d, 4th, " 12th, 17th, 27th, 40th, 45th, and 46th amendments, because, "by admitting them, the advantages expected from those officers "would be lost to the Militia. 1
" The House have disagreed to the 37th amendment, because "they do not perceive any advantage from the variation of ex- "pression therein proposed by your honorable House. The 7Ist "amendment is rejected, as being merely consequent to the 37th,
"The House agree, in part, with the Council in the 47th "amendment, and propose, as an amendment to it, to leave out "the particle [a], before the word [colonel], and adding the "letter [s] to the end of the word [colonel]. That part of the "proposed amendment for leaving out all the words following the "word [regiments], in the fifth line of the 15th enacting clause, "the House cannot agree to, as depending on the first amend- "ment proposed by Council and rejected by the Assembly.
"The House have disagreed to the 61st amendment, because "they are of opinion that the fine, as it stands in the bill, does "not, by any means, exceed the offence that a commissioned "officer would be guilty of in neglecting to attend his duty on "alarms. The same reason influenced the House in rejecting " the 62d amendment.
"The House, apprehending that the 21st section of the bill "has already provided for the government of the Militia of this "State, at all times and places, as well within as without the. "State, by such articles of war only as may be established by the "General Assembly, and also apprehending that the honorable "Continental Congress have fully provided, in their articles of
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"of war, that the Militia of the respective States should always, "when called into Continental service, be governed by the ar- "ticles and regulations of their own States only where such arti- "cles and regulations were made by the Legislature, and have "therefore rejected the 73d amendment as unnecessary.
"The 8Ist amendment the House of Assembly cannot accede "to, because they conceive that sufficient provision is made for " preventing. any imposition and injustice in 14th section, 15th "page. They further conceive that if the amendment proposed "was agreed to, such delays might and would happen in the "courts of law as would defeat the intention of the act.
"The House have rejected the 82d amendment, because they "are of opinion that nothing in the act will, in any measure, "invalidate the act entitled 'An act for the more speedily com- "pleting the quota of troops to be raised in this State for the' "Continental army.'
" Besides the amendment proposed to the 47th amendment, "made by your honorable House, the Assembly have made " some small amendments to the bill, and also some amendments "to several of the amendments made by the Council, which are "sent up to your honorable House for consideration."
Which, by order, was read the first time.
By special order the same was read a second time. Adjourned till 3 o'clock, P. M.
EODEM DIE, P. M.
The Council met.
Mr. Derrickson, a member from the House of Assembly, at- tending, was admitted and delivered to the Chair the rules and articles for the better regulating of the Militia, with the amend- ments proposed thereto by the Council, agreed to by the House
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of Assembly, and an additional amendment proposed by the House of Assembly.
The same member also delivered to the Chair the following notice of that House, to wit :
"IN THE HOUSE OF ASSEMBLY, "TUESDAY, A. M., May 5th, 1778.
" On motion,
" Resolved, That it is the intention of this House to adjourn "on Saturday next, for this present sitting, to some future day, "and that Mr. Derrickson wait on the Council with a copy of "this resolution."
Adjourned till to-morrow morning, 10 o'clock.
WEDNESDAY, A. M., May 6th, 1778.
The Council met. Present all the members, except Mr. Jones.
Mr. Clark, a member from the House of Assembly, attending, was admitted and delivered to the Chair "A bill to increase the number of the Justices of the Peace in each of the Counties of this State."
The Council now resumed the consideration of the Militia bill and such of the amendments which had been proposed by the Council to the House of Assembly and either disagreed to by the Assembly generally or further amendments proposed and have receded from several of their said amendments, whereupon a second paper of amendments was proposed by the Council to the amendments of the House of Assembly, and an answer from the Council to the message of the House of Assembly of yester- day, stating their reasons for adhering to their other amendments, was drawn up at the table, which, being read and approved of, is as follows, viz :
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Gentlemen :
Upon a review of the Militia bill and such of the amendments which had been proposed by the Council to your honorable House, and either disagreed to by you generally or further amendments proposed, the Council have receded from their sev- eral amendments which were made for the purpose of excluding the appointment of such officers as sub-lieutenants, upon the supposition that they may be, as you suppose, necessary officers for carrying the law into due and immediate execution, or lest any failure in the execution might be imputed to such an altera- tion in the bill. But the Council cannot agree to your fourth amendment, proposing the leaving out of the word [schoolmas- ters], mentioned in our 31st amendment, as we consider the very few engaged in that service so necessary for the education of the youth of the State that every encouragement should be given to them to pursue that business with the strictest attention. Every parent who reflects upon or regards the welfare of his offspring, every guardian of the rights of a free people, must wish to en- courage and promote learning; and such has been the fatal effects of the times on schools and seminaries of learning in this State that we think it worthy the attention of the Legislature to afford at least the proper exemption to the teachers in them. But lest* this exemption might be improperly used by setting up pretended schools, we have proposed an addition after the word [schoolmas- ters], as in No. 4 of our second amendments.
The Council adhere to their 37th amendment, as well as to the transposing of the paragraph, for that by our amendment it will be connected with a provision of the like nature as to the length- ening of the time for the election of the company officers ; for that the Council think it too short as it stands in the bill.
As to the 44th amendment, the Council are of opinion that the amendment proposed thereto by your House will raise the fine beyond the abilities of most of the poorer delinquents to pay ; it will rather tend to prevent the execution of the law than further it. An additional amendment is proposed for dividing the quan- tum of the fine, and doubt not that it will appear so to your hon- orable House on further consideration. As to our 47th amend- ment, we apprehend that we have acceded to it in the form the House of Assembly intended it should be, though somewhat dif- ferent from the form pointed out in your amendment thereto.
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The Council have acceded to the first part of your amendment stated in No. 8, but they cannot agree to the latter part thereof, as they are of opinion that persons qualified to do the duties of lieutenants or sub-lieutenants could not be had to accept of a temporary appointment by the President, subject to a sudden removal by the General Assembly ; and the Council apprehend it necessary to strengthen the hands of the Executive Depart- ment, to render it useful, and give a necessary influence for the due execution of the laws.
As to the clause in our 81st amendment, providing an appeal from the determination of a single Justice upon a fine that may amount to one hundred and seventy pounds or more on a single person, we cannot recede therefrom, as we think it a very neces- sary guard against the fallibility of such a judicature and con- sistent with the spirit of our laws, which we ought not to loose sight of lest precedents of this sort should take place and des- troy that liberty and property we are so anxiously contending for and seeking after. The delay cannot be great, unless we suppose the Courts of Justice, upon the appeal, shall not think them- selves bound by the express provision made for a speedy de- termination, which is not to be inferred ; for, if so, the same suspicion will lie against the single Judge, who will otherwise act without control or review.
The Council adhere to their 82d amendment, for that they have their doubts as to the operation of the Militia law upon the prior act for the more speedily completing the quota of troops to be raised in this State for the Continental army ; and if the Judge or Judges, who are to determine thereon hereafter, should doubt also, they will be subjected to difficulties which will be removed by adopting our amendment ; and as the House of Assembly, from their reason assigned for rejecting the amendment, shew expressly that it is not their intention to invalidate that act, they can have no objection to remove the doubts of the Council by acceding to the amendment.
As to the 10th amendment, proposed by the House of Assem- bly to be added to the 13th section of the bill, the Council agree to the same, but have thought it just and necessary that a further addition should be made there, as set down in the further amend- ment accompanying this answer, No. 7, providing for such among us who may be conscientiously scrupulous of bearing arms in any
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case, agreeable to the spirit as well as the express words of the Ioth clause in our declaration of rights, for that the Council are of opinion that the several fines that those sort of people will be subjected to under the present law will be a full equivalent for their protection and defect of personal service, independent of the accumulated fine for not going out upon a second call of the same class in any one year.
The Council think it unnecessary to particularize each of their further amendments, as those unnoticed depend on the like rea- sons assigned on their similar amendments, and therefore refer your honorable House to the further amendments set down in their second paper of amendments delivered with the answer.
Ordered, That the said answer and amendments be transcribed and sent by Mr. Hyatt to the House of Assembly.
The committee to whom was referred the petition from sundry inhabitants of Murtherkill and Jones' Hundreds, praying the aid of the Legislature in establishing guards, &c., now made their report, which, by order, was read the first time.
And, by special order, the same was read a second time, and. thereupon resolved, as follows, viz :
I. That the President or Commander-in-Chief be authorized and empowered forthwith to raise three companies in this State, to wit : one company in the County of New Castle, to consist of sixty men, non-commissioned officers and privates, under the command of one captain and two lieutenants ; one company in Kent County, to consist of seventy-five men, non-commissioned officers and privates, under the command of one captain and two lieutenants ; and one company in Sussex County, to consist of forty men, non-commissioned officers and privates, under the command of one captain and one lieutenant. The said captains and lieutenants to be appointed and commissioned by the Pre- sident or Commander-in-Chief.
2. That the said officers and men shall be entitled to and re- ceive Continental pay and rations, and shall be subject to the rules and articles of war, provided for the regulation of the Militia of this State, during their continuance in this service.
3. That the President or Commander-in-Chief be empowered
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to discharge the whole, or any one, or any part of the said com- panies when he shall think proper.
4. That the said companies be stationed near to or along the shores in the respective counties of this State, in such places and in such manner as the President or Commander-in-Chief shall from time to time think fit to order and direct.
5. That the duty of the said companies respectively shall be to prevent the enemy and refugees from landing in the State ; to apprehend, take up and secure any person or persons going to, coming from, or trading with the enemy or the said refugees, to- gether with all their goods, merchandise and provisions, and the teams and boats in which the same be, and to render a true account thereof to the President or Commander-in-Chief, and deliver the same to his order or appointment. 1
6. That the President or Commander-in-Chief be empowered to appoint one or more suitable persons in each county to furnish the company of such county with the rations allowed ; and that it be recommended to the House of Assembly to make provision for the execution of the aforesaid plan.
Ordered, That the same be transcribed and sent by Mr. Hyatt to the House of Assembly for their concurrence.
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Mr. Waples, a member from the House of Assembly, attend- ing, was admitted and delivered to the Chair an account of Thomas Wilds, Goaler of Kent County, for expenditures on be- half of several prisoners and deserters in his custody, together with his petition to the General Assembly for the payment there- of, and the proceedings of the House of Assembly on the said petition.
On motion, by order, the bill to increase the number of Justices of the Peace, &c., was read the first time.
Adjourned till to-morrow morning, 10 o'clock.
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THURSDAY, A. M., May 7th, 1778.
The Council met. Present all the members, except Mr. Jones.
Mr. Hyatt now reported that he had delivered to the House of Assembly the several papers given in charge to him according to the order of yesterday.
The report of the committee appointed to draw up an answer to the message of the House of Assembly of the 23d of April, was, by order, read a second time, and several amendments were proposed and agreed to. The said answer is as follows, viz :
Gentlemen : ..
The Council have considered your message in answer to theirs of the 18th April last, respecting their amendments to the resolves of your House relative to the administration of justice, &c., and cannot help expressing their surprise at your persisting to call upon the Council to join in a general charge of guilt upon officers. of justice, holding commissions for different terms during good behaviour, without knowing the particular persons alluded to therein, or they, or any of them, called upon or heard as to the matters alleged. This conduct we hold to be incompatible with the station we are in as the Supreme Court of Judicature with respect to the trial of offenders against the State, and we do con- ceive it the indispensable duty of Courts and Judges to condemn none unheard. We apprehend it is immaterial whether those facts be well attested or not. In the present stage of the business it is sufficient that they are alleged by the Assembly. This is a foundation for an inquiry. The persons charged are, by the Constitution and tenure of their offices, entitled to a hearing before conviction. The exercise of this power belongs to the General Assembly, and not to the President, therefore highly improper to be pointed out in an address to the President, as you propose in your message, until some hearing thereon, agree- able to the principles of our Constitution.
It is also improper for the Council to deny the facts mentioned in your second resolve, for their truth or falsehood ought reg- ularly to be inquired into before the persons accused, if they
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choose, on being summoned, to appear. The House of Assem- bly may either impeach the officers before the Council, or resolve that they be called on to answer the charges against them ; it would, therefore, be ill-judged by the Council to make them- selves a party in the question by a denial of the facts. It is sufficient that we have pointed out a mode in our message, now before your House, to which we beg leave to refer you.
We do not think that a total rejection of the second resolve, in which the grievances are pointed out, would make the reso- lutions testify that the only grievance existing is the appointment of two Justices of the Supreme Court in one county, and that justice in every other part has been duly administered. Never- theless, if the House of Assembly conceive it will receive such construction, the Council will have no objection to the total leav- ing out of the first resolve and the preceding preamble, which, we do admit, are not necessary to precede the resolution respect- ing the Judges of the Supreme Court.
The Council proposed an amendment to your third resolve, for that, in their opinion, the reason therein mentioned does not exist. The Clerks of the Supreme Court in the respective coun -. ties of this State may, and usually have, all kinds of remedial writs in their hands calculated for removing the determinations of inferior judicatures, so that the want of a Judge resident for this purpose doth not appear so proper for the foundation of the subsequent resolve ; therefore the Council cannot, for a reason which they know does not exist, agree to request the Justices of the Supreme Court who reside in one county to resign their commissions; yet, for a reason which at present does exist, they have concurred in such a request, and it must be a matter of small moment to your honorable House whether our concurrence with you proceeds from the same cause or motive or no, as the same end will be effected.
The Council have not at this time agreed to your proposition of a committee of conference on the subject matter of the second resolve aforesaid. We flatter ourselves that your House, on a reconsideration of the amendments and the principles on which they were proposed, will be inclined to adopt them.
Ordered, That the foregoing answer be transcribed and sent by Mr. Hyatt to the House of Assembly.
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Mr. Hyatt, being returned, reported the delivery of the same according to order.
On motion, by order, the bill to increase the number of Jus- tices, &c., was read a second time, and an amendment was pro- posed and agreed to.
Ordered, That the same be transcribed and sent by Mr. Hyatt, together with the said bill, to the House of Assembly.
Mr. Hyatt reported the delivery thereof according to order.
Adjourned till to-morrow morning, 10 o'clock.
FRIDAY, A. M., May 8th, 1778:
The Council met. Present the same members as on yesterday.
Mr. Derrickson, a member from the House of Assembly, at- tending, was admitted and delivered to the Chair two messages from the House of Assembly to the Council, which were read, and are as follows, viz :
" Gentlemen :
" This House have received the answer of the Council to a "message from this House respecting the amendments to sundry "resolutions of this House, of the 9th of April last, for the ad- " ministration of justice, and have acceded to the same amend- "ments."
"Gentlemen :
"The House of Assembly have taken into their considera- "tion the Militia bill and the second paper of amendments, with "the message accompanying the same, and have disagreed to the "7th amendment proposed in the said second paper, and still "continue to adhere to their resolution of rejecting divers of the "amendments proposed by the Council in the first paper, &c .;
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"but for the dispatch of business the House of Assembly pro- "pose to your honorable House the appointment of committees "to confer on the subject matter of those amendments."
The same member also returned to the Chair the resolution of the Council for the establishing of guards, &c., concurred in by the House of Assembly, who proposed an additional resolve thereto, which was read and concurred in, and is as follows, viz :
"Resolved, That his Excellency, the President, be empowered "and required to draw out of the Loan Offices of this State, or "any of them, such sum or sums of money as he may deem "necessary for the carrying into execution the aforesaid resolu- "tion for raising the said three companies of guards, and that "this House will devise ways and means for replacing the same."
Ordered, That Mr. Hyatt return the same to the House of Assembly, concurred in by the Council. ·
Mr. Hyatt, being returned, reported that he had delivered the same according to order.
A message from the President, inclosing a resolution of Con- gress recommending the passage of a law offering pardon to such of the inhabitants or subjects of the State as have levied war ' against any of the States, or adhered to, aided or abetted the enemy, and shall surrender themselves by a limited time, was delivered at the table.
On motion, by order, the foregoing message and resolution were severally read the first time. The said message is in these words, viz :
"Gentlemen of the Legislative Council :
"I just received a packet from the President of Congress, "inclosing a resolution of that honorable body recommending to " the several States the enacting laws, &c., for granting pardons, "&c. I have sent your honors, with this message, a copy of the "above-mentioned resolution for your consideration.
"CÆSAR RODNEY."
Adjourned till to-morrow morning, 10 o'clock.
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SATURDAY, A. M., May 9th, 1778.
The Council met. Present the same members as on yesterday.
Mr. Derrickson, a member from the House of Assembly, at- tending, was admitted and returned to the Chair the Militia bill, with the several amendments of each House to the said bill ; and also delivered the bill to increase the number of Justices, &c., signed by the Speaker of the House of Assembly.
The message from the House of Assembly, respecting the ap- pointment of committees to confer on the subject matter of the amendments to the Militia bill, was, by order, read a second time, and thereupon the following answer to the said message was drawn up at the table, viz :
Gentlemen :
The Council have taken into consideration your message of yesterday, and would gladly embrace every method calculated for the dispatch of the public business, particularly the bill for establishing a Militia, and have no other objection to the ap- pointment of a committee of conference as to the disputed . amendments proposed to that bill than the declaration of your House, in their message proposing such a conference, that you still continue to adhere to your resolution of rejecting those amendments. The Council apprehend the design of such a conference is to hear the reasons for and against the points in dispute between the two Houses, and have the opinion of this select part of them thereon reported. If your honorable House consider the points open for discussion, and that your conferees are not absolutely bound to reject every of those amendments proposed, we are ready and willing to have them discussed and reported upon by such a committee ; and that no delay may be, the Council have named Messrs. Vandyke and Bassett the con- ferees on this occasion, on the supposition that the committee to be appointed by you will be at liberty, as aforesaid.
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