USA > Pennsylvania > Colonial records of Pennsylvania, Vol. I > Part 43
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M' Speaker and the Representatives did withdraw.
His Excell. with advice and consent of the Councill, ordered M' Jamison to tell the Speaker in the House of representatives, that they have considred what they did offerr this day in Councill Concerning Laws. That his Excell. was readie to pass anie Laws not repug- nant to the Laws of England ; That this is the tenth day of their sessions, and what is offered is onlie a List of titles. It cannot be expected that his Excell. can goe blindfold to order the exucuon of Laws that doe not appear to him; Therfore, desires they will send him the rolls of these Laws they have mentioned, and whether they doe proceed upon the post-office and bill ag'privateers, or when they doe intend to proceed.
M' Jamison returned in ans',: That the house was adjourned for an houre, and were gone to inquire of the M' of the rolls forthe Laws.
Adjourned till S a Clock afternoon.
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MINUTES OF THE
POST MERID.
3 a Clock afternoon, the 24th of May, 1693.
PRESENT:
His Excellency BENJAMIN FLETCHER.
WM. MARKHAM, Esq'., Leivt. Governo'.
Andrew Robeson, Wm. Salway, r
Rob' Turner,
Esq". Wm. Clarke,
Pat. Robinson,
Geo. forman. L
Ordered, that M' Jamison doe deliver his former Last message, and doe ask M' Speaker to return his Excell. Copie of his Comission and bring it with him.
M' Speaker made ans', That they have examined and find but some rolls, That Livet. Governo' Markham was Secretarie, and he hath a book of Laws which they have much regard to, and also, that they did believe they might find with him the original bills; they have now sent some of their House to Inquire for ym, whom they expect. It were hard to suppose that these Laws they have acted by should be void, for the officers neglect in not enrolling them.
Mr. Jamison replied : That his Excell. did not blame this House for the want of them rolls, nor mean to charge any person with the ne- glect att present; but that his Excell. conceives that these Laws might have by this time been got readie in new bills, to be offered for his sanction, that they may be enrolled for their use.
M' Speaker said: He believed their Laws wer good, notwithstand- ing the officers neglect.
M' Jamison said : His Excell. did order him to enquire if they did proceed upon the post office and Bill ag' privateers, or when they intended to proceed.
M' Speaker ansred : That the Bill for the post office was once read in their house, and hee found no objection ag' it amongst the mem- bers.
M' Jamison said : His Excell. does expect that M' Speaker will send back the Copic of his Commission.
M' Speaker answered, that the Go' had asked one of the members of the house for it formerlie, but that att the time hee had forgot to mention it in the house: it should be returned.
M' Jamison said: His Excell. doth expect that I bring it along with mee.
M' Speaker: it shall be returned by those who shall bring up the Laws.
Edward Bleake, Samll. Carpenter, david LLoyd and John White, from the house of Representatives, came with a book of Laws to his Excell. and Councill, and did offer it as a true Copie; That they did beleive Livet. Governor Markham and some others of the Councill could inform the Governo' that of their certain knowledge these wer the Laws they had proceeded by in the governm', and desired that a
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Comittee may be appointed to Conferr with a Comittee of the repre- sentatives concerning those Laws that wer returned in the List of ti- tles given in this day.
His Excell. told them, Hee could take no notice of that book unless it wer attested for a true Copie by the Go', secretarie, or N' of the Rolls: these scripts of paper are handed about from one to another, and everie one may alter them att pleasure.
M' Lloyd. May it please the Go", I did see some of those Laws, & doe know that they wer delivered in to the privie Councill by Mr penn; & being no wayes disallowed, they must needs be of force.
His Excell. This is the first time I have heard of that, nor doe I conceive it to be true. By the king's Lres pattents, yo' Laws are to be made, ordained & published under M' penn's seal, & these con- dions are not performed: you cannot produce me one Law soe en- acted.
John White. May it please the Governo', wee are but poor men & of inferiour degree, and represent the people, and wee cannot have the boldness to say to the Go' freelie, becaus thou art soe farr above us, & putts an awe upon us. Wee wold willinglie be resolved of this point, that wee may be readie to doe the other part which perhapps may be ended in hours & not take up dayes; But it's hard that all our proceedings in Courts of Judicature, &c. are grounded upon no found- ation, having no Law, then consequentlie void, & all for want of forme.
His Excell. That may be easilie Salved with two lines of an act, which I will readily pass.
M' White. May it please the Governo' to heare me speak the truth . of the matter. This is our difficultie: Wee durst not begin to pass one bill to be enacted of cur former Laws, Least by soe doing wee declare the rest void, & of no force nor validitie, which will be of dangerous consequence; and therfore, wee desire to be at some Cer- taintie in this matter : If wee can get over it, I hope wee shall quicklie come to a period, and therfore desire a Committee may be appointed to Conferr with us upon our doubts and objections.
Ordered, Wm. Markham, Esq'., Livet. Governo', Andrew Robe- son, patrick Robinson, Wm. Salway and Wm. Clark, Esq"., be, and they are hereby appointed a committee of this board, to join a Comit- tee of the house of representatives, to Concerte of the paper contain- ing the List of titles of Laws delivered his Excell. by the Speaker this day, and to advise what may be proper to remedie the former neglects & remove the doubts that have arisen amongst the representatives upon his Excell. ans" to the sd paper.
Ordered, that George Forman, esq'. doe carrie a Copie of this order to the house of Representatives, and desire that the Speaker will ap- point a Comittee of that house to join the Comittee of the Councill att the house of Coll. Markham, at 8 a Clock morrow morning accord- inglie.
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[25ª May, 1693.
Att a Meeting of the Comittee of both houses att the hous of Livet. Governo' Markham, on Thursday the 25ª of May, 1693.
PRESENT :
WM. MARKHAM, Esq'., Livet. Go'.
OF THE COUNCILL.
Andrew Robeson, 2
William Salway,
Patrick Robinson, S. Esq".
William Clarke. Esq".
REPRESENTATIVES.
Joseph Growdon, David Lloyd, James Fox,
John White, Sam" Carpenter, John Brinkloe,
Edward Blake, Cornelius Empson, John Swift.
Livet. Governo' Markham. Gentl., You have desired a Comittee should be appointed to concerto with you upon some objections and doubts arisen upon the paper Containing the List of titles of Laws, & his Excell. answer therunto, for which reason wee are now mett.
M' Speaker. Wee have manie reasons to believe that our Laws are of force, but shall only mention this; That these manie years wee have exercised the government by these Laws, & are in the enjoyment of them; Wee know them to be our Laws, and wee know & can prove that Wm. penn caried the greatest bodie of them to Eng- land, & conceive they wer delivered to the king, and never declared void : and as to the rest of our Laws, the time Limited in the Letters patents for transmitting of them is five years, which is not yet expired ; and as to yo' objection that they are not enrolled and und the Seal of the proprietarie or his deputie, wee say that is not necessarie to the making of Laws, but they are onlie Ceremonies, and you have been active as well as wee in executing these Laws, tho without the Seal, and therfore, wee pray they may be allowed to be of force as our right.
M: White: all the Laws that wee pretend to are 203, wherof 174 wer made while the proprietarie, Wm. penn, was here in person. W'm. penn had sufficient power to make these Laws, and Livet. Go- verno', You wer present att the making of ym, and if any thing wer amiss you are concerned.
Livet. Governor. I was present att the making of them all.
M: White. All except about twelve or thirteen.
Livet. Governor. I was not secretarie all that time when the Laws wer made, but att the making of a few of them.
MI' White. Those Laws were caried home to England by Wm. penn, and by him presented to the king, or his privie Councill, which wee are readie to prove, and the king did not within six months declare them to be void; Therfore, they are our Laws, and wee have had the peaceable exercise and enjoyment of them ; and some of you that are of the Comittee of the Councill have sitt upon the Bench, and given Judgment of death by these Laws; wce are in the posession
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of ym & say they are good and of force. Wee desire you to prove that they are not good.
Livet. Governo'. Wee are not to prove the negative, you are to prove the affirmative, becaus you produce none.
M' White. Wee have our Laws here; And wee now put it to the Livet. Governor to say whether hee hath not the originall bills of these Laws in keeping, as formerlie secretarie of this province. We are willing to have them compared with these bills; wee know ym to be true Copies ; wee are readie to prove that they wer passed into acts.
Livet. Governo'. I owne that I have the Bills by me, and doe be- lieve that book may be a true Copie, and all which you have alledged may be answered in one word, but goe on and say what you have to say.
M' Loyd. That is all wee desire, if these be the Laws that wer enacted ; Wee came not here to dispute the forme and validite of the Laws by the want of a seal, or their not being Legallie published ; But whether these be the Laws or not that wer made and published, which you confess ; Soe the matter is att an end.
Livet. Governo'. Have you anie more to offerr.
M' Speaker. Doe you call us in question by what authoritie wee doe use these Laws, when you have jointlie along with us executed them ?
M' Lloyd. Who can be Judge whether these Laws be in force or not. None can be Judges but those that made them, since ther is no order from the king and Councill declarring them void; wee desire that they may be putt in execuon. It wer hard that the want of the affixing a Seal, or some such other Ceremonie, should destroy our Laws; And if wee allow this att present wee must expect it for the future, That everie new Governor, finding fault with some omission or another in the making or publishing of our Laws, will declare them void, which is of evill Consequence, and wee doe not know that ever wee shall have more Laws.
Livet. Governor. Have you anie more to offerr.
M' Speaker. Wee have, But this may suffice att present; Saving to our Selves the making farther ans" and defence when wee shall hear what is offered ag' our Laws being in force, Which wee desire to hear.
Patrick Robinson, Esq'. Gentl., You have desired his Excell. to Cause the officers to putt in execuon the Laws contained in this List, and have made a Large preamble or Introduction to this desire, wher- in you have been Unfair in repeating the words of the Charter. In your paper you say : ["also granting unto the said Wm. penn, his de- " putie or Livets, by virtue of the said royall charter, full, free & " absolute power, by and with the assent of the freemen of the said " province, to make, enact and publish any Laws whatsoever, for "anie, and appertaining either to the publick state, pence, or saftie " of the said Countrie, or unto the private utilitie of particular per- " sons, according to their best discretion."] Whereas, the 4"> para- graph of the Letters patents is in these words: [" And for as much "as wee have hereby made and ordained the aforesd Wm. penn, his
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1 " Heirs and Assigns, the true and absolute proprietors of all the " Lands & dominions aforesaid; know yee therfore, that wee, reposing " speciall trust & confidence in the fidelitie, wisdom, justice and pro- " vident circumspection of the said Wm. penn, for us, our heirs and " Successors, doe grant free, full and absolute power, by virtue of these " presents, to him & his heirs, to his and their deputies and Livets, " for the good & happie government of the said Countrie, to ordain, " make & enact, & under his and their Sealls to publish anie Laws " whatsoever for the raising of Monie for the publick uses of the said " province, or for anie other ends appertaining either unto the publick " state or safety."] Where it is plain that your Laws ought to be pub- lished under some scal, either of Wm. penn, or of his deputie or Livet., which is the defect you now lye under, and wold Conceale. None of those Laws (you desire may be putt in execuon) wer ever SOE pub- lished, nor are to be anie where scen or found, nor is there anie stand- ard of such Laws to be produced to his Excell. for his approbation .. You have books of Laws, & so have I, but they are not attested by any officer for true Copies, and there are not any originall rolls under seal to compare them with, Which is manifest to you all. You doe Likewise alledge that the greatest bodie of Laws wer transmitted & presented to the Councill by M' penn, which is a doubt. But if they wer, it will signifie nothing; for as they are to be published under seal, so also wer they to be transmitted under seal : paragraph 7ª: [" Our further will and pleasure is, that a transcript or duplicate of all " Laws which shall be SOE AS AFORESAID made and published within " this province, shall, within five years after the making therof, be " transmitted & delivered to the privie Councill for the time being, of - " us, our heirs and Successors; and if anie of the sd Laws within " the space of six mo's after that they shall be soe transmitted & de- " livered, &c."] (Soe transmitted) is under seal Soe as published, and if never published under seal, consequentlie never soe transmitted. You must not think to claim that of right wch is meer grace.
Their Maties are tender of their Honour and interest in forreign plantaons, and take care to prevent their alienaon from the Crown, by appointing such methods of governm' in their Letters pattents as may be most for their preservation, which they expect shall be punctuallie observed. The Seal is the soule and Life of the Laws, as you find by the charter, and was never affixed to them, or anie of them. Wee. are readie to hear you offerr anie thing to the contrarie. Also, by your own confession, manie of your Laws are not transmitted, and manie or most of them dissonant to the Laws of England ; wheras, his Excell. is commanded to pass such Laws as are as neer as can be, agreeable to the Laws of England.
M' Speaker. It is not an injunction to affix the seal, but a Leave of a thing given to Go' penn, as a mark of favour, which hee may use if he pleasc, but there is no obligaon to use the seal. It is onlie a Ceremonie; and so sayes over again what hee said before.
Leivt. Governo". M' Speaker, neither does the king enjoin the making of Laws when hee gives the power of making them, But when
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this power is exerted by you, It ought to be done in the manner the king directs, becaus you have not power to make ym otherwise.
M' Lloyd and M' White repeat their former arguments, and alledge that the sealing is not materiall to the making of a Law, but the con- sent of the Governor, Councill & assembly.
Mº Andrew Robinson. The agreement of the Governo', Councill, and people, to the passing of a Law, is but like a deed drawn by articles of agreem', which is no deed untill it be sealed and delivered, tho attested by the parties' hand.
M' White acknowledged there may be defect in the officers, one or other, but we cannot tell but they may be enrolled and sealed some- where or other; perhapps they may. Wee know these are bur Laws, and wee have executed them, and it will runn us all into confusion, - & all our acts of govermt and proceedings in Courts of Judicature must be condemned, if wee allow the Laws are not of force and in being.
Mª pat. Robinson. de non apparentibus et non existentibus eadem est ratu.
Sam" Carpenter. If now they are our Laws I will stand by them. I had rather Loose all I have in the world than part with our Laws.
M' White. It does not appear that the Laws were to be made un- der the seal, onlie to be published under the seal; therfore, they were made by a good authoritie, and if any thing be wanting it is not our fault who made them, & we ought not to sufferr by the neglect. The . fault may be remedied.
M' Loyd. I am surprized the members of Councill, who have a joint interest with us in the province, and have acted by these Laws and satt in Courts of Judicature, should speak ag' their validitie. Our priviledges are yours.
Andrew Robeson, Esqr., Chiefe Justice. Gentl., wee are well satis- fied it is so, & heartilie wish the prosperitie of the province in everie respect ; But it is all our duties to know the strength and Validitie of our Laws, that the ministers of Justice may be satisfied of the validi- tie of their Laws, and that they proceed upon good grounds; and also, that the people may be satisfied of the Justice executed, and what they must expect if they transgress.
M' pat. Robinson. Gentl., His Excell the Governor has a tender regard to this province & the peace of the people therin ; But you must Likewise consider that hee must be tender of the prerogative of the Crown. Hee hath come hither by their maties' comands, not of his owne seeking. I am verie well assured that notwithstanding all this wee have heard in this meeting, His Excell. will goe as farr as may be to serve the province in bringing all to rights. His Excell. cannot agree to the execuon of any Law that is repugnant to the Law of England, therfore I wold advise you to Looke over again that List of Laws, and consider with yourselves what may be for your owne peace and benefit: I am pretty well satisfied you may order the List so as that his Excell. will agree that the Laws therin contained shall be
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executed by the officers in the government, untill his excell. shall re- ceive orders from their maties concerning the same. But this I must tell you, that you must not think to offerr that Law concerning wrecks, for his excell. has a particular Comission for Vice admirall, which reaches this province and the three Lower Counties.
M' Speaker. We are well satisfied to doe this; wee matter not the Law of wrecks; Believe that will make no rubb. Wee desire you will be pleased to request this of the Governo'.
[25° May, 1693.
Att a Councill Held att philadelphia on a Thursday the 25"} of May 1693, Afternoon.
PRESENT :
His. Excell. BENJAMIN FLETCHER, &c.
Wy MARKHAM, Esq'., Livet. Governo".
Andrew Robeson,
William Sallaway,
Robert Turner, Esq". William Clarke, Esq".
Patrick Robinson.
George Forman.
The Comittee of the Councill doe return, That the representatives appointed a Comittee to join them this day to read over the List of Laws, and to offerr such of them as they think convenient to his Excell. to order ym to be executed by the officers of the government untill their Maties pleasure should be further known ; which, if his Excell. will promise to grant, they will then proceed with all expedion to the other bussines.
The Councill are of opinion and doe advise his Excell. to grant their desire.
His Excell. did send to the house of representatives to acquaint them that he was readie to grant that some Laws should be executed, Untill their Maties pleasure should be known, and to desire them to proceed upon the other affairs befor them wtout loss of time.
[26 May, 1693.
Att a Councill Held att philadelphia on Friday the 262 of May, 1693.
PRESENT:
His Excell. BENJAMIN FLETCHER, &c.
Andrew Robeson,
Robert Turner, Esq". Geo. forman.
Lawrence Cock, Esq".
Pat. Robinson,
His Excell. did send for Livet. Go' Markham, and understanding
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him to be indisposed to come abroad by the gout, & desirous to have a full board, did adjourne to his house.
Att the House of the Livet. Governo".
His Excell. did offerr that hee understood there was something in articles ag' Thomas Loyd appearing in the Minute book of assembly, 1689, wherin he is charged with defaults in the administration of Justice, Which may serve if there be occasion, to defeat their allega- tion that Justice was dulie executed, and ordered the perusall of the book.
Ordered also, the Councill doe resolve into a Comittee this after- noon, to Consider of an answer to the Romonstrance of the represen- tatives, which they are desired to putt in writting & return to his excell. und' their hands, for his better informaon, being a stranger in the Countrie.
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POST MERID.
3 A Clock afternoon, the 26th of May, 1693.
Andrew Robeson, 7
Wm. Salway,
Robert Turner,
Pat. Robinson,
SEsq".
Wm. Clarke,
>Esq".
Lawrence Cocke,
Geo. forman.
The Committe having drawen up their answer to the remonstrance, doe sign it, and afterwards present it to his Excell.
The Councill's answer to the representatives' remonstrance, philad. the 26th of May, 1693.
Wheras, the Governor hath been pleased to appoint us a Comittee of the Councill to give our opinion of the remonstrance delivered to him by the assemblie, Wee having mett & considred the same, doe with submission deliver our sense, That wheras the assemblie doe say : That they "conceive that their desires wer not grounded on mis- " takes in relation to the proprietor's absence. Wee conceive it was Be- " caus they doe earnestlie beseech that their proceedings in Legislation " may be according to the usuall methods and Laws of this governm', " founded upon the Late king's Lres patents, desiring the same may " be confirmed unto them as their rights and Liberties ;" The which themselves have overthrown & declined, by their choosing repre- sentatives to serve in assemblie according to the Governor's writts, founded on their Maties' Letters patents, befor they did ever assert or insist on their former methods or frame of government. And wheras, they say that they " doe w' all readines and cheerfullnes "owne accordingly to be the right of the king and Queen." But they do not mention king Wm. & Queen Mary, which wee conceive to be a great Omission, if not a slight putt upon ym. And wheras, they say that they " apprehend the reasons for the Superseding the " proprietor's governancie are founded on misinformations, for that the 'Courts of Justice wer open in all the Counties of this goverm', &
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" Justice dulie executed." Wee doe say that wee can instance in sc- verall particulars where justice was delayed, if not denyed, & therfor not duly executed. And wheras, they say, that they "doe not appre- hend that the province was in danger of being lost from the Crown." To which we ans", That wee doe not know of anie care that was taken for the defence therof.
Andrew Robeson,
William Salway,
Rob' Turner, Wm. Clarke,
George forman,
pat. Robinson,
Lasse Cock.
[27] May, 1693.
Att a Councill Held att philadelphia on a Saturuday the 27ª of May, 1693.
PRESENT :
His Excell. BENJAMIN FLETCHER, &c.
Andrew Robeson,
Wm. Salway,
Rob' Turner, Esq". Wm. Clarke,
Lawrence Cock,
Geo. forman, 7
His Excell. sent M' Jamison to know if the representatives have made anie thing readie for the perusall of the Councill, to save time.
M' Jamison returned that the house were not mett ; that some of the representatives there told him they wer copying out such Laws as they wer to offerr to his excell .; that they had imployed three Clarks, - but that they beleived it Impossible they wold offerr any thing this day; & that they were also proceeding upon other matters.
Adjourned till Moonday morning, 8 a Clock.
[29" May, 1603. .
Att a Councill Held att philadelphia on Moonday the 29% of May, 1693, Afternoonc.
His Excell. gave the board to understand that in the forenoon hee had sent to the house of representatives about eleven a clock, and there was no assemblic mett; that the Speaker is now come to towne and the assembly sitting, desiring the advice of the board If it may be proper to send for the speaker & reprimand him for going out of towne w'tout Icave, or to send to him and urge their dispatch. The Councill doe advise his Excell. to send to urge their dispatch.
Ordered, Mi: Jamison doe wait upon the House of representatives. and tell the Speaker that his Excell. and Councill did attend on Satu- ruday Last, and sent a Message to them and they wer nott mett; In Like manner this forcnoone, and they were not mett, The Speaker and Sundrie representatives being outt of town : That it is neither war. rantable nor answerable for the members of assembly to gos outt of
Esq".
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towne without the Leave of the House, nor for the speaker without his Excell's Leave, during their Sessions; That his Excell. must be gone to morrow. That if anie thing extraordinarie shall happen in the fronteers during his Excel's absence, they must think to answer for their delayes ; and to desire to know if they will have anie thing to offerr this night.
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