USA > Pennsylvania > Colonial records of Pennsylvania, Vol. II > Part 27
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Wee have lately Raised a Considerable sum of Money for Support of this Govmt., and to pay the Depts of this Province, which by failure of Crops the last year, and the thin appearance, this together with the Decay of Trade, Loses by sea, and great Scarty of Money, will certenly be heavy enough for the present upon ye People, many of them being poor and in Debt.
But if it were not so, we are informed, That a Regular ffortifica- tion here would cost more than can be possibly Rais'd, Considering the Situation of this town is between two Navigable Rivers, And open to Land Marches besides, And we hope we are not in much Danger, considering our Remotenes from the Sea & difficulty of Access. But if a proper Scituation could be found, and a ffort built, before the Country be Capable to maintain & keep it, the Consequences may prove very prejudical to the Queens Interest & hazardous to her sub- jects which probably may be the prevailing reasons, why the Queens Colonies of Virginia & Maryland, which are far more ancient Settle- ments than Ours have no ffortifications. We know of this day : Therefore we hope that nothing shall prevail to render us more Ob- noxious to the Queen than our neighbours, and the subjects less se- cure with us than with them.
Wee find upon this short view of thy speech, that it Contains matter of great Weight, and Requires more time and Close applica- tion than our present Circumstances can well admitt, In regard the season of the Year requires most of us at our harvest, upon which the Support of ourselves and families so much depends. Therefore we desire, that the Govr. would be pleased to excuse our further attendance at this time, and accept of this our present answer, & Re- present us Candidly to the Queen, whose care over us as well as the neighbouring Colonies wee are deeply sensible of, and shall study to approve ourselves, her faithfull subjects, to the utmost of our ability. Signed by Ordr. of the House.
JOS. GROWDON, Speaker.
Upon reading of which, the Govr. sent the Secretary to the House to inform them, that having considered their address, and their ear- nest desires to return home, he would not detain them longer ; Since at present so little could be expected to be done, but desired they
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would adjourn to some day near the beginning of Augst., & for this time he should dismiss them.
At a Council held at Philadelphia, ye 31st Augst, 1706.
PRESENT :
The Honble JOHN EVANS, Esqr., Lieut. Govr.
Edward Shippen, Samuel Carpenter,
Jasper Yeates,
Griffith Owen. 1 Esq'rs.
William Trent, Esq'rs. James Logan,
Joseph Pidgeon,
An Order of the Queen in Council, dated at the Court at St. James's the 7th day of febry. last past, sent over by the Proprietr. was read, in which Ordr. are recited the titles of one hundred and five laws past by the Proprietr. & Govr. & the freemen of this Pro- vince & Territories, in Assembly mett, and presented to the Queen for her Royal Approbation, who has been pleased to disallow & re- peal fifty two of the said Laws and declared them to void and of ne effect for the reasons rendered by the Lds. Commissioners, for Trade & Plantations & the Queens attorney Genl. in Engld., whose objee- tions have also been sent over, with which Orders it being necessary that the Courts and magistrates of this Govmt. should be acquainted.
'Tis Ordered that Copies of the said Ordr. or so much thereof as is necessary be forthwith drawn out & sent to the Clerks of each County in this Govmt. respectively, who are required to communicate the same to the magistrates, and to note the said Laws that are so repealed in the Proper Margin of their Books of exemplifications of the sd. Laws, as also to note which of the sd. repealed Laws have been re-enacted since the year 1701.
'Twas moved upon Consideration of the said Repeal that it would be absolutely necessary that the Assembly of the Province should meet as soon as possible to re-enact such of the said Laws as were of importance to the Country and are not yet re-enacted, answering the Objections made against them by the Lords Commissioners or attor- ney Genl. and 'tis Ordered thereupon that the Assembly meet on the 18th day of 7ber next ensuing.
The Govr. represented to the Board that it being of the highest importance in this dangerous time of War to maintain as far as pos- sible a perfect good understanding with the Indians, & to Labour to preserve them secure in the Queens Interest against the machinations used by the Enemy to Debauch them from us, he had proposed to make a visit very speedily to those of Conestogoe & the adjacent settlemt. which he offered to the consideration of the Board, that it might be ordered at the publick Charge.
And the Board were of opinion that if the Governr. would himself undertake ye trouble of such a Journey, his visit to them, since he had given them an expectation of seeing them at their own habita- tions, might be of service at this time, when it is of such importance to maintain a good understanding with them.
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Ordered that writts be forthwith prepared to be signed by the Govr. before his Departure, for summoning the assembly to meet on 18th day of September, before which day it was found they Cannot Conveniently leave their Countrey affairs, and then adjourned to the said day.
At a Council held at Philadelphia, ye 19th Sept. 1706.
PRESENT :
The Honble JOHN EVANS, Esqr., Lieut. Govr.
Thomas Story, Esq'rs. James Logan, - Esq'rs.
Griffith Owen,
William Trent,
Yesterday being appointed by the Govrs. Writts for the meeting of the Assembly, but there not being then a sufficient Number in town, and more Members being arrived to day, The Govr. upon no- tice the House was mett, sent the Secretary to the Assembly to in- form them that he desired to be attended by the whole House im- mediately at the Council Chamber.
The Speaker, attended by the whole House, waited on the Govr. accordingly, and the Speaker applying himfelf to the Govr. said, that the House was now mett and ready to receive the Govrs. com- mands. That by the Govrs. Writts they were obliged to have mett Yesterday, but that by reason of a general meeting at Burlington, many of the members through their stay there, had not attended, & therefore they could not make a house, but that now they were ready to receive his Comds.
The Govr. spoke to them and said that upon the arrival of the Queens Order in Council repealing Several of our Laws, he was de- sirous to meet them as soon as possible. That had he not been under a Necessity of going to Conestogoe lately for which he found when he arrived there, that there had been very great occasion, & hoped it would prove of Great Service, he would have called them Sooner, however he resolved that he might gain as much time as possible to Call them these two days before the time they were adjourned to, at their last rising; that the business he had now to lay before them would be short, which was that having lately reced. the Queens Order in Council repealing several of our Laws, there were some of these which had not yet been re-enacted by them, that would require their immediate thoughts & application and particularly two, viz : the law for Establishing Courts of Judicature and the Law of Property, and these seem'd more immediately to require their thoughts & Care, and therefore desired they would without delay take them & what others they should judge necessary into their Consideration, and the time yt they have to sitt being very short, he must earnestly recom- mend Unanimity & Dispatch to them in their Proceedings, and then the Govr. giving the Speaker the Original Order of the Queen, they withdrew.
The Gover. laid before the Board a scheme drawn into the form. of a Bill to be passed into an act for establishing Courts in this Pro-
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vince done by some of the Practitioners in the Courts, which was read to the Board & Considered.
A message from the House by two members, viz: E. Shippen & C. Pusey. May it please the Govr , The Assembly finding it men- tioned in the Queens Order that the Objections of the Lds. of Trade against the Laws that are repealed and the Reasons of these Objec- tions were laid before the Queen, Desire to know whether those rea- sons have been transmitted, and if they be, they crave to have them communicated, that the house may the better know how to proceed.
To which it was answered, That there were no reasons sent over with the Ordr., that the house had the objections of the attorney Genl. before them long agoe, besides which the Govr. had receiv'd. no others except a few objections made by the Lds. of Trade, which should also be communicated. And then adjourned till morning.
27th. 7bre.
The Council not sitting in the morning, the Secry. delivered to the House, ye objections made by the Lds. of Trade to several of our Laws.
And in the afternoon the Govr. sent to the Assembly by the Secry. the Bill for Establishing Courts, as it was drawn up by the Practi- tioners in the Law, and read at Council last night, desireing they would Consider the Scheme, and agree to it or otherwise as they should find Cause.
At a Councill held at Philadelphia, 23d, 7br., 1706.
PRESENT :
The Honble JOHN EVANS, Esqr., Lieut. Govr.
Thomas Story,
Jasper Yeats, 3 Esq'rs.
Griffith Owen, Esq'rs. William Trent,
James Logan,
The Govr. having reced. a paper from the Assembly containing the Resolves of the House upon the Bill for Establishing Courts, as follows, dated 21, 7bris., 1706.
Die Sabbati,°. 7bris., 1706.
The House having taken into consideration the Bill Intituled An Act for Establishing Courts of Judicature in this Province, came to the following Resolves :
1. That the Govr. or his Deputy, with - of the Council, shall have power to hold a Court of Equity, wch shall have Genl. Jurisdiction over this Province, and to hear and Decree all such matters of Equity as shall Come before them in said Court, Where the Proceedings shall be by Bill and answer with such other pleadings as are used and allowed in Chancery, with Powers to make Rules and Orders Conducing to a Regular Proceeding and Dispatch of all Causes of Equity, so as such Rules and Proceedings be proper and Consonant to the Laws and Constitutions of this Pro- vince ; Provided, that the Court meddle not with matters wherein
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sufficient remedy may be had in any other Court, either by the Rules of the Common Law, or according to the Direction of any Law of this Province, But in those Cases to Remitt the Parties to the Common Law.
2. That the Govr. may as often as there shall be Occasion, Issue forth special Commissions of Oyer & Terminer & Good Delivery, for the Trying & Judging of all offences wch by the Laws of this province are or shall be made Capital or ffelonies of Death wch shall be try'd in the County where the ffact is committed.
.3 That there shall be a provincial or Supream Court of Judi- cature which shall be held in each County twice in every year, And shall consist of a Chief Justice and Two or more Associates, who shall Hear and Determine all Pleas, Matters and Causes whatso- ever brought before them by habeas corpus, Certiorari or Writts of Error.
4. That there shall be a Competent Number of Justices of the peace in each County, who shall have Conusance of all Pleas of the Crown, and of all actions Real, Personal and Mixt, except the said ffelonies of Death, & to award process thereupon and to hold sessions of the peace, and to do all other things pertaining to the Duty of Justices of Peace as fully as Justices of the Peace or Justices of the County Court have heretofore done in and out of Sessions, Provided that no Cause be removed from this Court, but where the Debt and Damage is to a pound or upwards.
5. That nothing herein Contained shall Deprive or abridge the Magistrates of the City of Philadia. of any powers or Jurisdictions granted them by Charter or otherwise. Nor shall any of the said Justices intermeddle with any any Matter or Cause arising within the said City which is Cognizable by the Magistrates of the said City, saving only what Causes may be from Thence Removed to the sd Provincial Court by Writts of Error. Signed by Order of the House.
JOS. GROWDON, Speaker.
The Govr. thought fit to have the Practitioners in the Law in this City called to give their Sentimts. upon them, & accordingly G. Low- ther, the attorney Genl. for this Province, R. Assheton, Clerk of the City & County of Philadelphia, & Thomas Clark, attended; and upon a full consideration of the said Resolves, it was resolved by the Board that the following additions & proposals should be made, and sent to the House for their Concurrance, Viz :
Additions to be made to the Head resolved on by the Assembly to be brought into an Act for establishing Courts, &c.
1. Seeing the Assembly cannot agree to have a general Court, pro- vision should be made for ye Relief of the Subject when he dares not put himself upon that particular County where the action is com- menced, that he may have a Trial by such as he can better depend on to be unbiassed & unprejudiced in his Case.
2. It will be necessary also that there be a Power in every County to extend their executions, &c. to the other Counties.
3. When a Cause is removed by Habeas Corpus or Certiorari be- fore the Provincial Judges, so that the first Trial by this means
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comes before them, 'Tis reasonable the Subject should have relief, (if he find himself aggrieved) by one Remove in this Province before he appeal to Engld., and therefore in such cases it would be proper to bring the Matter before the Govr, and Council, as indeed they ought to have some notice of every Cause that is carried to England by appeal.
4. A Clause to be added to continue all former process, and that adjournmt., &c., made since the Publication of the Repeal of the former Law, be valid.
5. The Corporation of Philadia. not to be crampt in any priviledge granted to them, Yet there is no reason their Judgmts. should be more decisive than those of the County Courts, but that the same relief may be had there as in any other of the Queens Inferiour Courts, either at home or abroad.
6. A Clause to be added, that nothing in the Act contained should abridge the Propr. from erecting Propry. Courts as in the former Act, And the Secry. is Ordered to draw over the sd. Resolves, and in the morning to carry them to the House.
The Govr. also acquainting the Board, that the same message from the House that delv'd. him their resolves, desired to know what the Govr. proposed to them concerning the Bill of Property drawn up by them at their first sitting, & presented to the Govr.
The Secry. was ordered, at the same time he delvd. the foregiving Resolves, to inform the House, that the mentioned Bill of Property now lay before them, that this Board having fully considered it when at first sent up by the Assembly, sent it down again with such amendments as being made to the Bill, the Govr. could agree to it, but had told them at the same time, that if they thought not, the Bill so amended sufficient, the Govr. would take care to send over Copies of it to the Propr., with all possible expedition, and so gett his sentiments and directions upon it, being unwilling to proceed any further in a matter wholly relating to the Proprs. Property, than he himself had gone. That accordingly, Copies had been sent two several ways before the first Sessions of this Assembly rose, the one by the West Indies, the other directly to ffalmouth, but that both had mascarried ; 'tis supposed, having never heard of the Receipt of these Letters, that since that time the sd. Bill has remained in the House, so that further Copies of it could not be had to be sent at any time after, And accordingly the said Message was delivered.
Mercury 25th 7br., 1706. Ante Merid.
PRESENT :
The Honble JOHN EVANS, Lieut. Govr.
John Guest,
James Logan, r Esq'rs.]
Thomas Story, Esq'rs.
Joseph Pidgeon,
William Trent,
To members of the Assembly delvd. the answers of the House to
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the last Resolves of this Board, upon the act for establishing Courts, viz :
To ye 1st. The House cant agree to this.
To ye 2d. Agreed that these process be granted by the Justices of the Province and County Courts respectively, directed to the she- rif of the proper County, where the party lives.
To ye 3d. Its intended that all matters be tried in the Inferiour Courts before Removal.
To ye 4th. Agreed to.
To ye 5th. Its also Intended that no Cause be moved out of the City Courts before Judgment first given there.
Ye 6th. Agreed to.
These answers of the Assembly being so wide from any agreement with the proposals of this Board, It was Resolved, that a Conference should be appointed with the whole House in the afternoon, to De- bate the matter.
A message from the Assembly by two members, viz : Caleb Pusey and
May it please the Govr : We are sent by the House, to know of the Govr. what answer he will be pleased to give to the late message from the House to himself, in relation to the Bill left with him for Impowering Religious Societies to buy & sell Lands. The Govr. answered, they should know by a message to the House, & in the meantime desired the said two members to inform the Assembly, That this Board had taken into Consideration the answers of the House to the proposals made them by the Govr. & Council, in an- swer to their Resolves upon the Bill for establishing Courts, & had resolved to hold a Conference with the House upon the Matter, and that three in the afternoon was the time appointed, at which time they were to acquaint the House, That they were to attend at the Council Chamber.
Adjourn'd to 3 in the afternoon.
POST MERIDIEM, ye same as before, & Geo. Roche.
The Speaker with the whole House attended the Govr. & Council to hold the Conference ordered in the morning, to which Conference all the Practitioners in the Law that were in Philadelphia, were also called.
The Govr. at the opening of the Conference informed the Speaker and other members that finding a necessity to Expedite the Bill for establishing Courts of Judicature, he had caused such an one as was thought most reasonable by the Practitioners in the Law, to be laid before them. That upon the said Bill they had sent him up several Resolves which the House had come to, which Resolves had been Considered by the Board, and that other Proposals had been made by himself & the Council for additions or amendments to be made to the sd. Proposals ; that they had also sent their answers to those proposals, which he perceived were so wide from the Sentimts. of this Board, that for the greater dispatch of the business he found
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it necessary that a free Conference should be held between the Board and the House, to adjust the matter with as little loss of time as possible.
And then all the aforementioned Papers were severally read. The Speaker acquainted the Govr. That the House was generally desirous that such a Bill should be finished, being sensible of what Necessity it was to the Countrey, But that they found it a matter of Impor- tance, and so nearly to Concern them that they were very Cautious in acting too precipitantly ; that the Chief difficulty among them was, that the members of the other Counties Could not be induced to agree that business should be brought from these Counties and generally fixt in Philadelphia ; That they could not answer this to the Counties that Chose them, and they must be Careful of giving any thing away that the people accounted their Privileges; That they had agreed to the most material parts of the Bill, but could not but oppose that particular of bringing so much business from their Counties to the Town.
Those of the Council urged that the Board was not for removing any matters out of the Respective Counties to Philadia. but were for General & Common Law Jurisdiction, that all Court proceedings might be regular & uniform ; that by the means proposed, viz: that the provincial Court should be equally extended over the whole Pro- vince, and have Cognizance of more causes, it would be render'd of service, whereas now 'tis of very little : nothing in Civil Cases but matters of Law upon Writts of Error being brougt before it. The first article sent from this Board was particularly considered, and it was agreed to by the Board that all matters of Fact, except in some very particular Cases should be tried in ye respective Coun- ties where they arose, but it was insisted on, that there should be full room left for any Cause to be brought out of the County Courts if commenced there either before or after Trial, into the Provincial, to be heard & tried by the Judges of that Court, but in the proper County, or to be first entred in the Provincial at the election of the Plaintif.
The matter was largely spoke to on both sides, & then left to the further Consideration of the House.
The 2d being agreed to by the House required no Debate.
To the 3d it was alledged, That all matters of Equity might be brought before the Govr. & Council as proper Judges, But in matters of Law there was not that Conveniency in it, these being most fitly determined by a Chief Justice skill'd in the Law, and that it was not practised in others of the Queens Govmts. in Am'ca.
The 4th being ageeed to by the House, needed no debate.
To the 5th it was urged by the Board that all the Queens subjects every where should have the benefit of Remedial Writts, and this was largely insisted on in arguing the first.
The 6th was agreed to by the House.
The Govr. at length proposed to the Representatives to return to their House and Consider fully of what they had been debated, & to 11*
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bring the matter to a Result with all possible expedition, and then they withdrew.
A Petition of Benj. Chambers was read, setting forth, That he had at vast Charge, & with great trouble erected an Excellent ferry over Schuylkill, on the great Road from Philadelphia to Chester, which was rendered much more commodious by his own invention of a kind of Boats never known before. That now after all his expence & trouble, when he should reap the fruits of it, some persons were attempting to errect an other ferry very near to that erected by him, which would turn to his irreparable Damage, &c., & therefore prays that the Govmt. would put an effectual stop to any Proceedings that would be so unjust & ruinous to him & his Posterity.
Together with the said Petition, there was also read the Draught of a Bill which he proposed to be pass'd into an act, forbidding all persons whatever to erect any ferry within one mile of that erected by him, so long as his heirs or assigns should keep theirs in Repair, under the penalty of Two Hundred pounds, to be paid to the said Benjamin, &c.
Ordered, that as soon as the Assembly should have leisure to pro- ceed on matters of that kind, the said Petition & Bill should be com- municated to them, And then adjourned till morning, but the Coun- cil met not.
At a Council held at Philadelphia, ye 3d of 8br., 1706. PRESENT :
The Honble JOHN EVANS, Esqr., Lieut. Govr. Edwd. Shippen, James Logan.
Jno. Guest,
Thos. Story, Esq'rs. Richd. Hill,
Esq'rs.
Samuel ffinney,
George Roche, Joseph Pidgeon.
The Govr. informed the Board, that two nights after the last Con- ference held with the Assembly, he reced. a message from the House, by 4 members, viz : C. Pussey, Rd. Hill, D. Lloyd, & Jno. Swift, representing to him, that the House had considered what had past at the said Conference, and had spent most of their time since that in debating it, that they would have been extream glad to have been able to go through with it, being fully sensible of the necessity of it, and in general had indifferently well agreed upon what had been proposed, but they found it would require much more time to do it with such accuracy as the matter required, than they had now to sitt ; that another assembly was very near at hand, who they hoped would bring it to perfection, & therefore they requested the Govr., that tho' they were very well satisfied that he had a full power to Establish these Courts by an Ordinance, yet that for the satisfaction of the Contrey where the Courts had always been hitherto held by a Law, he would defer the making of any such Ordinance till the next assembly should have time to take it into Consideration, & then they requested that that Assembly should be dismissed, which last he then granted them.
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The Inconveniency of any further adjournmt. of the Courts being discoursed on the one hand, and the Conveniency of having all the Courts, & all things relating to them settled by an act on the other, It was Resolved, that the Courts should be further adjourned till the matter could be laid before the Assembly.
A motion being made, that for the greater Dispatch and for other good Reasons, a Bill should be prepared to be sent from this Board to the Assembly, at their first meeting; It was agreed to & Ordered, That a Bill be drawn up according to the several heads following.
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