USA > Pennsylvania > Colonial records of Pennsylvania, Vol. II > Part 29
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5. We hold it convenient to Enumerate what we can of the powers of ye Judges & Justices, To the End that their Commissions & pro- ceedings may be reduced to as much Certainty as may be, and not left too General.
6. As Concerning the putting in of Judges, We propose as the Governour does that he should appoint them ; But that they should be displaced for misbehaviour at the Request of the Assembly is
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what we do insist upon as a privilege Vested in the Legislative Authority. And as to what we propose concerning Prothonotary's and Clerks, We conceive our Bill is well warranted, as well by an act of Parliament made in the first year of William and Mary, Ch : 2d, as by the Common Law ; And the Statute of Westminster, the 2d Ch. 30; And the 2d of hen, ye 6th, Ch : 10, By all which we find It is held reasonable That the Judges and Justices should ap- point their Clerks and Officers to Enter that which the Judges or Justices do adjudge or Order, The Insufficient doing whereof makes the proceedings of the Justices Erroneous To their Dishonour as well as to to the prejudice of the party.
7. That the Court of Equity shall be in the Governr. and Council as by their scheam is proposed. We hold it very Inconvenient, not because the subject should thereby be tryed by one particular Court only, that may be prejudiced against him, without the benefit of a Remove, as is supposed of other Courts in the 4th objection ; But for that, we would have these Councillours like good sentinels and Watchmen, to Consult of the honour, safety & Publick Good of ye Province, and leave private Causes to the Justices, and for that end we propose by our Bill that the Court of Equity should be lodged in Commissioners of the Governrs. appointing, whereby we prevent the Council here to fall into that Inconveniency, which the Council Table Did, by assuming unto itself a power to Intermeddle in Civil Causes, and matters only of private Interest between party and party which ye Parliament of England thought fitt to stop there, and from that Example we think it our Duty to oppose ye same mischiefs here.
8. We hold it best to settle the practices so farr as we can by a Law, rather than leave it to be done by Rules of Court, which by the discretion of the Justices, may prove so different and contrary, That he who is Conversant with the practices of the Courts in our County may loose his cause in another, for want of knowing the practice there.
9. We do not find that the last Assembly settled the power of granting Lycenses, but that the rates are only settled, because of the Complaints made of the excessive charge thentofore of obtaining Lycences, but since that act passed, we find that ye Law for grant- ing Lycences, is repealed by the Queen, Wherefore it is Resolved by this House that so far as the Laws of England Give the Justices of the peace there a power of granting such Lycenses, so ye Justices here ought to have the like power, And we understand, That it was ye Proprys. mind formerly that it should be so in this Province.
10. As to appropriating part of ye fines to pay the Justices fees, our proposals therein is warranted by a statute Law of England, as well as usage of other Govmts. in the Queens Dominions. And though we are very sensible of what is granted the Proprietr. by the said royal Charter, yet we are of opinion, that the appointing of fines and forfeitures to the Queen does not take away ye right of the Pro- prietary, (or others to whom he granted fines and forfeitures,) to
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claim and to have them, But we would avoid our superiours objec- tion on that account, which has proved very fatal to some of our Laws, And which the proprietary, (it seems) could not solve but by a clause in ye surrender.
11. We intend that the Magistrates of the City of Philadia. shall have no more power in Civil Causes than their Charter allowes them, and as to what is objected That their Jurisdiction fines at Pleasure. If it be intended thereby, That the Magistrates of Phila- dia. fine at pleasure, in any Case where the Law does not leave them, as well as other Magistrates to their pleasure or Discretion ; We take it to be an Unjust Imputation upon them, And we are Informed, That the Law allows Magistrates of Cities & Towns Corporate in England, to set the fines wch they are to have themselves. See Ventris's Reports, 1st pt. pa. 180.
12. The House cannot agree to this alteration, because Original Writts, by a Law of this Province, (not disapproved by the Queen,) are to be granted under the hands & seals of ye Justices, But that all Judicial Writts shall pass under the County seal as proposed by the Bill.
13. The House cannot agree to make all persons subject to arrest, It being contrary to an act pass'd the last assembly, Conformable to ye attorney Generals opinion upon a former act of that nature ; But as to the Clause for exempting persons from arrests, who have a Clear Estate worth £100, We agree it shall be omitted, and left out of the Bill.
14. We are far from intending to give Liberty for any Debtor to act the Knave, but if we can be informed by sound reason, why a man that has an Estate in Lands or Chattels, in any part of the Province, should be surprized in a County where perhaps he has no Estate, nor much acquaintance, And be shut up in prison among fellons, & deprived of his Liberty when he has enough in another County to pay, and seeks not to defraud his Creditor, and if it could be shewn that the Common Law has given any grounds for such Im- prisonments in a Common persons Case, It would be to the purpose.
15. As to this objection, we think it is not well guarded, But would make our Bill Import what it does not, and puts a very wrong Construction upon our Intent what we proposed is by way of Essay to relieve those only who can make their Creditors more secure, and to Impower the magistrates to interpose between a hard hearted Creditor and an honest Debtor, & cause a Debt to be well secured that may be lost by the Debtor's dying in prison, wch may be the Consequence of Confining him. Especially in hot weather, for the Sherif or Gaoler cannot allow him the Liberty of Stepping over the threshold, but He will be lyable to pay the Debt. These were the motives of this Expedient, and we have agreed upon something more than was at first proposed, for securing the Creditors in those Cases which we desire may be duely weighed, and we hope ye End of ye Law will be better answered by this or some such like way of secu- ring Creditors rather than Debtors should be stifled in Gaols which
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have no verge nor Liberty belonging to them, & where he that is in for debt can have no more Benefit than a felon.
16. That the Court of Equity as proposed by the Bill, gives no Colour of authority for the same persons to Judge twice of the same cause, for that matters of Equity being originally begun there, and a Clause particularly obliging them not to intermeddle with matters of Law in the said Courts of Equity, and our Bill being warranted in that point by an act of Parliamt. which gives the Judges of the Com- mon Law Power to determine matters of Equity in the same Sessions throughout the Dominion of Wales, We find no cause to Recede from what we have already proposed in that behalf, and we think that the agreement of the last Assembly can be no ways binding upon this, unless we can acquiesce with it, and why the Governour and Council should not be a Court of Equity we have shown in our answer to the 7th objection.
17. As for the Governours discharging these Officers, We have given our opinion therein by our answer to the 6th objection, where- unto we refer.
18. As to the Courts of Orphans, We have well Considered that part of the act relating thereto and see no cause as yet, to alter it ; but if the Govr. will propose a better way for securing of Orphans Estates, we desire he would be pleased to Communicate his thoughts therein to this House.
19. As to the fees, we desire the Govr. to take them into conside- ration being as necessary to be scann'd & settled as the rest of the Bill. The Complaints of several persons whom we represent calling for a Regulation therein.
20. We hope that our Bill as now amended will effectually Estab- lish Regular Jurisdiction throughout this province, tho' not Conform- ing in all points with that scheme proposed by the Govr. And if any further objections be made thereunto, We desire that they may be the Results of the Governrs deliberate Consideration, And this House will readily comply with any amendment that may Improve our scheme, and better adapt it the circumstances of the place and Reduce the Proceedings and Practice of the Courts to a greater cer- tainty, And not prostitute the same to the pretence or Tryal of any persons skill and experience let his knowledge be what it will. And if our Superiours will not approve of what we shall so conclude, We will readily submit to their Correction, but if the Governr will think fitt notwithstanding all our endeavors for a regular Establishment of Courts to make any Ordinance for that purpose without the advice and consent of the Assembly, we shall be obliged to take such mea- sures as may be proper for our own Vindication, and to discharge the Trust in us reposed by those we Represent.
Signed by Order of the House this 27th 9th Mo. 1706.
Per DAV'D LLOYD, Speaker.
Which being read & considered, 'tis Ordered that an answer be drawn up to be sent to the House in the morning, And that Thos. Story, Willm. Trent, Richd. Hill & the Secry, be a Committee to
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draw up the said answer, which was done accordingly in the follow- ing words.
Novembr. ye 28th, 1706.
ffrom the Govr. & Council, to the Council to the Assembly, upon their answers delivd. Yesterday to the Govr.
The Govr. had hopes from the expectations given him, that the Assembly having taken so long a time to answer his, & the Councils objections to ye Bill, they would have effectually accommodated the matters in Debate, that so it might pass in good time, and the Courts again might be enabled to do Justice to the Countrey, that begins now to be much oppress'd for want of the administration of it in a Judicial way, but the House appears by this answer to be so fixed upon their own proposals, as if nothing must be effected but at the price of granting whatever they request, whether it of Right belong to them or not. It might suffice to say, that the Govr. neither can nor will by any means agree to grant away any of those Rights which Indisputably belong to the Govrs. in Chief or his Lieut., such as the putting in & turning out of officers as he shall see occasion, fines & forfeitures, & the perquisites arising from the Licensing of Publick Houses. Yet that the House may be fully satisfied that the Govr. gives their proposals a deliberate Consideration as they re- quest. He thinks fit, with the advice of the Council, further to take notice of each particular answer, as far as they Contain any thing new or remarkable, but for the rest he refers to the former objec- tions.
1. The Govr. knows of no concealment of the reasons for repeal- ing the late Bill, having never heard directly nor indirectly of any that were given. But as the scheme now proposed by the House, differs much more widely from ye Constitutions in most of her Ma- jesties Colonies abroad, & from an English Establishment, than the Bill recommended to the House from this Board, so the latter might be much more likely to be approved of in England, than yt now sent up by the House.
2. Considering the necessity and service of a Council, & the power granted them by the Queen in all her Govmts. abroad, they also perhaps deserve some more of those Civil Regards than have here been paid them. But if the Assembly would have their Assistance confined to matters of State only, the Govr. is of opinion, that the passing of a Bill into a Law is so much an act of State, as it Con- cerns her Majesty & the proprys. Interest, & the safety, well being & Interest of the subject, that he believes he would by no means answer his acting in such points without their advice and assistance. But when the House, to make use of any presence for laying their power aside, says, they can allow ye Council no more authority in Legislation than the Lords of Trade seem to doe in their objection to the Law for erecting Chester Bridge, which Objection is in these words : (The first Enacting Clause Begins, Be it enacted by the authority aforesd, whereas there is only the Govr. & Council men- tion'd before.) They are desired seriously to Consider whether it become so great a part of Legislative power, of a Govr., as the House
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of Representatives, makes so unaccountable to misuse these Expres- sion; of that Board.
The Lords Justly Tax the act with an absurdity, in Beginning the first enacting clause with, Be it Enacted by the authority aforesaid, with which no distinct act can begin, nor is there any authority men- tioned before, but the Govr. & Council, who no where in the English Dominions have or pretend to the power of Legislation without the Assembly ; But it would be an abuse to common sense to imagine, that because by an objection, if this were the whole of what the Lords husted, that the Assembly is not mentioned ; therefore, 'tis an objection that the Council is mentioned, this will hold as strong agst. mentioning the Govr. himself in that act, & then the Assembly will have the whole Power. But this was only as misprision in the Clerk, for the Council have neither in that Assembly, nor ever since claimed any vote in Legislation, Or if they did, 'tis not probable the Lords of Trade would object against it, since in all her Majestys Governmts. immediately under the Crown they have such votes, But a Govr, would Certainly find himself extremely unsafe without a Council in affairs of this kind, since he is unaccountable for all the acts he passed, especially where Constitutions, Statutes, and Law books are quoted to him, if he must rely wholly on his own Know- ledge & experience only.
The Bill presented to the House, has been proved to agree much better with ye best of Constitutions, viz : the English than the Bill presented by them, & 'tis strenuously alledged, that that agrees, with no Known Constitution in the English Dominions, but that it secures in the foundations to be drawn from that of the Marches of Wales, which for its inconveniency, 'tis said has been abrogated by act of Parl., & therefore cannot be pleaded as a fit President to be Estab- lished here.
The Power granted to the proprietr. by the Royal Charter is suf- ficient to erect all our Courts, and so the best skill'd in the Law in that House have given their opinion, Yet the Govr. would rather choose it should be done by act of Assembly. But as this cannot be obtained without a much greater inconveniency, such measures must be taken as the Govr. can best discharge his Duty & Trust by, to her Majy. and the Propr. and the Countrey ; & if that should suffer for want of any further Provision, it will belong to them only to answer for it who are the Veasons of it, the Govr. is willing to establish Courts with the Concurrence of the Assembly ; He craves no new grant to be made to him, why then should the Assembly press the Govr. to make new ones or otherwise halt in the discharge of their Duty, which now certainly is to open ye Currant of Justice, as if it were the Merit of an Assembly to divest the Govr. of his power and render him as useless as they would the Council.
3. Whether distinct Patents or the same is a matter indifferent, but the former objection still weighs with the Govr. Justice cannot be so duly administered when the Judges are under no obligation to act. The Govr. has largely found the Difficulty of this Case ; fit persons ought to be obliged to do this important Duty and be paid
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for it, the want of which has occasioned mischievous disappointments in this Govmt., especially in the Courts of Philadelphia. 'Tis a point of Civility in the Assembly to those they Represent to take up such assurances of their abilities ; But the Govr. has certainly by Expe- rience found it extreamly difficult both to find such persons and to perswade them to act, especially in such Cases as by this Act should be brought before the Provincial Judges; for which service none but men of the Law can be qualified.
4. This alteration is much more reasonable, but it should leave the same room for writts of Certiorari here as in England, as well after plea as before, according to the act of Parlmt. from which this is taken.
5. This is of no very great importance either way but the other is thought safest.
6. In the rest of her Majesty's Governmts. in America the officers that have not their Commissions from the Crown are put in or turned out as the Govr. finds Cause, & the same Power being in the Govr. here, he is resolved not to grant it away ; had the Assembly this Power already in ym 'tis supposed it would be in vain to intreat them to part with it, notwithstannding all other Govrs. had it. Why then should they ask what they would not grant, notwithstanding any Presidents that could be pleaded for it throughout the rest of the Queens Dominions in America.
7. What is proposed is the Practice of all these Govmts. (as far as this Board can be informed) in America, 'tis no advantage to ye Govr., but 'tis every where abroad thought most reasonable that these persons who particularly Chosen to Consult in matter of State & of the greatest importance, should be Considered as the fittest to Judge in matters of Equity. Neither Govr. nor Council have reason to be fond of this, but as it might render the Board more Consider- able in the Eyes of the People, so it might enduce ye most Consider- able persons to engage in it, & thereby be greater security to the Countrey. The present Council here has never pretended to deter- mine matters in Civil cases, & these Reflections in this Case are unkind, for the Proposal is not that the Council has held such a Power as the Govr. a Council, but as there must be a Court of Equiety, and the Govr. and Council is made that Court in all others of the Queens Colonies, What reason can be given only the Council here should not be that Court, as well as in other places. But the aim in this as well as in some other cases, seems really to be to divest the Propr. & Govr. and all those about ym. of Power, otherwise why should matters in this Province be prest so differently from all the rest of the Queens Colonies ?
8. This may be left.
9. The Assembly has Established the ffees, which 'tis not reason- able to expect should be given away. The Govmt. is not so well supported, as that any branch, however small, can be parted with this method is contrary to the Practice of all men.
10. 'Tis an invasion of the Proprs. Right to attempt it, while Govmt. is in him. The Lords Objection to that Law was th VOL. II .- 12
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ought not to be passed if the Propr. surrendered the Govmt. which when he does he must also surrender his Right to all the fines, but till that be done they are his, and if the Propr. took no other way to solve that, 'twas because he was then actually upon a Treaty about it, and when ever any such Treaty shall be concluded, 'twill be properly solved by a Clause requiring those ffines, &c., to the Crown.
11. The Corporation may ffine as other Courts can, but then Re- medial Writts are to be allowed, the denying of which in another Clause occasioned this just Objection.
12. 'Tis most proper that it should be as proposed in the objection, and if it be already settled by a Law, the same power may alter it in a Case where no body will be Injur'd by it only matters be more regularly settled.
13. The Govr. proposed to the House that fewer persons than were intended in ye Bill or rather more should be exempted from ar- rests, and to this they answer that they agree there shall be even more exempted than they at first proposed, for that follows upon leaving out that clause ; this method of agreeing is not the way to bring matters nearer to close. The Govr. would have acquiesed with that part of the Bill being pleased with so considerable an amend- ment, but still wished it might yet have been made better, but ad- mires to find it returned worse than before.
14. The design of Laws of this nature is to oblige men to be just that would not be so without them, for honesty is the greatest Law to itself, 'tis the knavish part of the world therefore, that in such cases must be guarded agst., and whatever may give such Persons a Greater Liberty is dangerous, But a General Jurisdiction would prevent this.
15. An intention to favour the oppressed is commendable, but there should be nothing intended by an act but what is plainly ex- pressed, for when once in force 'tis not the intention but the letter is pleaded, and that in this act gave the Greatest Knaves as great a Privilege as the honestest man, equally as it tended to relieve the honest from oppression whether a Knave or honest. Vating Essays are dangerous, however Commendable the Intention may be; there might some other objections be made to this Clause, as the Inconsis- tencies of it sentences, no Provision for the Costs of suit, &c But since there is so much necessity for Dispatencing of business in hand, such matters had better be brought into separate acts that may be with more leisure adjusted, especially since an objection agst. one single Clause is sufficient at home to Condemn a whole act.
16. This is spoken to in No. 7 & in No. 2, 8, 2.
17. This is Likewise answered before.
18. This will not admit of a Debate at present, if the rest of the act could be settled, this might be the more easy adjusted.
19. The Govr. is very willing to have the ffees settled, but there has been so much time lost that it cannot be done now early enough for this Bill ; he has nothing against passing an Act for Establishing
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them, but time must be taken first to hear all the Respective officers, and thats the only reason of the former objection.
20. Till these objections be removed, the Govr. cannot assent to the Bill, Yet the Courts must be established which has been fully spoke to No. 2, 8, 3. The Case is short and plain, the assembly re- quests several things to be granted away from the Propr. & Govr. which are now his, and to this he will not agree ; they desire some other new matters to be Enacted that were never known here before, which he thinks not safe for the Countrey, & therefore cannot assent to. If for reasons they will not join in a reasonable method to pub- lish the Courts, the matter 'tis believed will be indeed want a vindi- cation. The Govr. however, must without Delay see them established, if not with the Concurrance of the Assembly, then by such other means as are in this Power and will best answer the Publick good, & in answer to the last Clause, 'tis hoped the Assembly will take no measures but such as they will be better able to vindicate, than their Refusal to discharge so important a Duty if they should still unhap- pily insist on what they have offered. But upon the whole, they are desired to Consider that the business now is to serve the Countrey at a pinch and not a Trial of Skill, and to resolve that there may be no more time spent nor argumts. used upon his head, but what they im- mediately tend to bring the matter by the shortest methods to the desired Issue.
Signed by Order of the Board,
J. LOGAN, Secry.
Ordered, that Thomas Story and Richard Hill deliver'd the said answer, & Inform the House that the time the Courts ought to sitt of Course drew so very nigh, (the day for Philadelphia Court being 3d or Tuesday next, ) that the matter would not admitt of any longer debate, and therefore they were desired to give their Result by to- morrow at farthest, for the Courts must not be suffered to fall.
On ye 27th, A Petition from Jacob Spicer of West Jersey, was read, humbly shewing yt a Certain Negro Slave belonging to him, being sent to Philadelphia about his masters occasions, was taken up in the street, & committed to Goal without any mittimus, and was there detained & kept very Greatly to the sd Jacob, (his master's) Damage, and thereupon prays relief.
And the subject of the said Petition being further inquired into, the Board was informed, that the said negro was committed upon suspicion, That he had, if not wilfully yet accidentally, sett on fire the Dwelling House of Wm. Righton, which was lately burnt to the Ground.
Ordered thereupon, that upon the late Law for Trial of Negroes, a Commission be Issued to-, for the Trial of negroes in the County of Philadelphia.
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At a Council held at Philadelphia, ye 30th 9br., 1706.
PRESENT : The Honble JOHN EVANS, Esq., Lieut. Govr.
Judge Guest, Thos. Story, 1 Esq'rs.
William Trent,
Richard Hill,
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