USA > Pennsylvania > Colonial records of Pennsylvania, Vol. II > Part 31
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Res. 6th. Here's mention made of pernicious Council given to the Govr. upon no ffoundation, for the Paragraph to which this must be designed in answer will admit of no such thing, the Court of the . marches of Wales only was mentioned by the Govr., to be as 'twas
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said abrogated, and this is true, for the Court is suppressed by act of Parliament. If there were any mistake in a matter that is so foreign to us as the Courts of Wales, it might have been hinted to the Govr. in another Language, then calling it pernicious Council given him, and the assembly that are generally unacquainted with things of this nature, are made to resolve it to be such N. C. D. Besides since the Courts in the neighbouring Govmts. are erected immediately under the Crown, it looks somewhat too arrogating, to say that the Govrs. scheme is rejected to avoid the Inconveniences these Courts produce, & yet mention none of them for the Govrs. satisfaction.
Res. 7th. The House resolves N. C. D., that if a law could pass here to settle the Court of Equity in the Govr. and Council, it might meet with the same rebuke at home as that part of the Ordinance of Wales, which gave the President and Council a power of Chan- cery. That Court was suppressed, because it was found an intolera- ble burthen to the subject as it was managed, Yet the Queen, in most or all her Governmts. abroad, expressly establishes her Courts of Equity in the Governour and Council alone, and therefore if the same were done here, the old abusive Chancery of Wales could be no objection, since by the Queen herself, such Courts are so settled in New York, Maryland, Virginia, the Islands, &c., unless the As- sembly would have it believed, That because such a Court of Chan- cery for the great abuses of it was suppresed in Wales, therefore, a Court of Equity in the Govr. and Council of Pennsylvania particu- larly, must also be thought equally abusive by the Govmt. at home, notwithstanding these Courts are so erected by their Express direc- tions in the other parts of the Queens Diminions.
Res. 8th. This if any thing at all is intended by it, implies as if the Govr. inferred that because he may advise with what Council he pleases, therefore that Council should have the like authority as Councils in Govmts. immediately under the Crown, where they have a share in Legislation, whereas in the answers sent to the House, there is not one Syllable to that purpose, or leading to such an an- swer.
Res. 9th. The House Taxes the Council with assuming a share of the Legislative authority, because as Council to the Govr. they join with him in advising to such matters as may be fitt to be enacted. By the same rule the attorney Genl. and divers others in Engld. assume a Power in our Legislation, for they make objections, which are sent to us, being directed so to do by the Queen there, whose authority alone confirms or repeals them, But it is intolerable in the assembly thus upon all occasions, however unjustly, (as before about Chester Bridge,) to attack the Council for their service to the Publick.
Res. 10. Either this is of no service at all, or it implies as if such a thing had been proposed by the Govr., which never was.
Res. 12. The Govr. told the Assembly if they would not concur in a reasonable Law to Establish the Courts, he must do it by an Ordinance, for they must be established. The House hereupon Resolves, N. C. D. that whosoever advises ye Govr. to Revive the
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process and re-establish the Courts by an Ordinance, such Council is pernicious, & the advisers to be deemed Enemies, &c., if this be leveled at such as advise the Govr. to revive ye Pleas by an ordi- nance, it touches no body, & is then very frivolous, if it means such as advise him upon the terms mentioned in his message, to which these Resolves were sent in answer, as by the following Resolve seems to be intended, viz : to re-establish Courts only by an Ordinance, it takes in the Govr., the Council, the last Assembly, the Speaker of this, and all the lawyers of the Place, into the rank of such Enemies, & and what animadversion this language deserves, the House themselves may Judge.
Res. 13. A member of Council, J. L-, is by name de- clared, an because 'tis the opinion of the House that he is, one of those that advise the Govr. to insist upon an Opinion (as the Lan- guage of the Resolve runs) of re-establishing Courts by an Ordinance, whereas neither he nor any other person advised the Govr. to this, if it could be done by a reasonable Law, but if it cannot, it has been the opinion of all those that have been mentioned, that it must be done by such other means as are in the Govrs. power, and so the Govr. must proceed to do, however irreverent the House may shew themselves upon it : and if this Resolve will suit that member, the House has been already told what follows, and how many are to be taken into the same Rank with him upon this score.
Upon the whole, too great a part of these mentioned Resolves are grounded upon misconstructions & erroneous inferences, and carry an air of Indignity with them, such as perhaps has never before been offered from any people to their Govr. duly appointed and Constituted over them, & therefore too Justly merit all the titles that have been given them in that message.
These are such particulers as the Govr. was of opinion ought to be animadverted upon, but after he has been obliged by the House thus to mention them, he shall be willing to wave all further notice of them at this time, & proceed only to what immediately requires the application of ye whole Govmt. to see effected, In Order to which & that all unnecessary disputes may be laid aside, The House is desired to Consider that the Privileges of ye People consist not in Divesting the Govr. of all power and support. The Govmt of Engld. from whence all our Power is deriv'd, is in it self monarchical, with a just mixture of whatever else can render it the Happiest in the world, and of the same kind are also the Particular Govmts. in all the Queens Domi- nions, saving that for reasons obvious to those that know the story of yt time the Govmt. of the Massachusets was at first granted prin- cipally to the People ; But in the Royal Charter to the Propry. the whole power of Govmt. is invested in him and his heirs & their deputies alone, Requiring only that the Laws to be past in this Province should be by the Consent of ye freemen, to be assembled in such manner as the said Propry. should think fit, So that besides this Right of concurring in making Laws, there is nothing further granted to any of the People by that Charter, whatever power beyond this is Claim'd it can be derived from the Proprys. grants alone.
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The Govr. at his arrival, found the People Posses'd of a Charter, by virtue of which the Present Assembly now sitts, containing the frame of the Govmt. settled solemnly, as he has reason to believe, between the Propry. and the People, because by the subscription 'tis said to be thankfully accepted of by the Assembly then sitting, & was signed not only by the Propry., but by the Speaker of that As- sembly, in the name of all those of the Province, (as 'tis affirmed,) who were then present, and unanimously consenting, & 'tis further wittnessed by the Council, this therefore ought fully to Conclude, for if the People could alledge that anything more was their due, it ought at that time to have been fixed & settled, the Assembly then sitting, as the Govs. is informed, having fully Considered and Debated it, or if any Demands, which 'tis imagined might further have been made, were not then granted, the Govr. can not think it proper for him to intermeddle or concern himself further than by Virtue of the Kings Letters Pats. to the Propr. and the Proprs. Commission to him, with her Majesties Royal approbation, to govern according to that Char- ter & the Laws in fforce, & to proceed to Enact such others as may be necessary for the Countrey, & neither break in upon the already fixed and Established Rights of the Proprs. or those of the People, But if the Govr. should see occasion to ask a supply for the support of Govmt. He is of opinion that there could be no just Parallel drawn between granting away a Right or Branch of a Constitution on the one hand, and the giving of a nesessary supply for the present support of Govmt. on the other ; Govmt. is always to be supported, but not the Constitution of a Govmt. to be always altered, or its Privileges lopt off as often as that support is raised. Were this to be the method, all constitutions would be entirely changed in a very few years, and there would remain no ancient Rights to be asserted, all would be soon bought and swallowed up by the People, who yet would never find themselves the more happy, tho' they might perhaps be more licentious in Government. It might reasonably be thought a very easy business to establish the Courts by a Law, without raising new disputes and Contending for such Grants of Power as are not essential to their Constitution, nor were ever in the People for these 24 Years past, since this has been a Colony. The Assembly there- fore are desired to Consider whether at a time when the Countrey deeply suffers for want of Courts and the administration of Justice, when violence and oppression is ready to take Place, and no man can be sure of his own further than his neighbours honesty will secure him, 'tis Reasonable or for the Countreys service to start and Insist on Privileges which were never to the Govrs. Knowledge disputed here before, & to desire of the present Govr. such new grant to be made as either were not requested of the Propr. himself, when these matters were about being settled, or if they were, it appears he could not think ffitt to grant them. To make these hardships on the Govr., with which they may easily know he cannot Justly Comply, the terms of Procuring a Law only for the service of the Countrey, in which every Individual is or may be concerned, shows as if something
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further were intended than the shortest method to advance the good of the Publick.
But to bring on the matter in hand, the Govr. once more informs the assembly, & they are desired to take it as his positive answer.
That seeing he found at his arrival the Power of appointing & removing the Judges and Justices, and divers other officers invested in the Govr., and that it has been the Practice in this Province since the beginning and is the same in the Govmt. round us he cannot agree to part with this Power.
That he cannot grant the fines and forfeitures away from the Proprietr., nor appropriate any part of them to any other use than Immediately to the support of Govmt. as they are generally in the Laws last Enacted, viz : either to the Proprietr. or Govr. for the support of Govmt., or to the Govr. alone, which is near the same ; That notwithstanding the settlement of Chancery in the Respective Countries of Wales, which the House said is the foundation of their Bill be Established, Yet the Govr. can not think proper to take a Precedent from thence for the Court of Equity, but takes the rest of the Queens Governments to be much more fitt for our Imitation, than a method which makes the same Justice Judges twice of the same Cause, first in Law and then in Equity ; but if the Assembly judge it inconvenient, that the Court should be in himself & the Council, he will appoint such particular Judges for it by Commission, as that by them & the Provincial Judges the mentioned Inconve- niency may be avoided.
That the Govr. cannot agree to any alteration whatsoever in the Power of the Corporation, but must leave the whole as the Proprietr. himself thought fitt to grant them, And shall still leave it to him alone to make what Additions he shall think fitt.
That if the former method of Licensing Publick Houses be not thought sufficient, the Govr. will agree that no License shall be valid but what is grounded upon a Recommendation of the Justices or magistrates in Court, bat will not part with the right of granting them, Yet is ready to Concede to any thing that may tend to main- tain good order in Publick Houses more Effectually in a bill by itself.
As to the rest, Since no Consideration will induce the House to quitt their Proposed Establishment, the Govr. that the Courts may upon any reasonable terms be opened again, will not any further In- sist on the scheme by him proposed, but leave it to the House to proceed on their own, to which they seem so strongly attached, & besides the above objections shall (of those that have already been made) further insist only on the following.
That writts of Certiorari be granted as fully here as by the act of Parliamt. in Engld.
That ye Inconveniency of Procreating new Law suits in favour of persons taken in execution be better guarded against.
That in settling the ffees the Respective officers be first heard.
Besides which there will now some few others arise from matters relating chiefly to the Courts themselves, which the Govr. thought
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not fitt to make before, because the scheme or Constitution itself, and the Proprietors Rights, were the Chief matters in dispute, which when once Concluded ye rest 'tis hoped will afford no great difficulty.
Upon the whole the House is desired, wth as little delay as possi- ble, to let the Govr. know their thoughts, in such a manner as may most directly tend to bring ye matters in debate to ye speediest close. And if anything arise in wch the House cannot fully satisfy them- selves, they may discourse it at a Conference, which the Govr., if they desire it will either appoint to day, or at any other proper time for it after to morrow is over.
Signed by Order.
At a Council Held at Philadelphia Janry. 15th, 1706-7. PRESENT :
The Honrble JOHN EVANS, Esqr., Lieut. Govr.
Samuel Carpenter,
Thomas Story,
William Trent, 1
James Logan,
Capt. Roche, Joseph Pidgeon,
An order of this Board of ye 2d of 10br. last appointing David Powel and 8 other persons with him, to view and survey the present Road from Philadelphia to Merion over Powels fferry, and the new Road that divers of the Welsh have petitioned for, was read, and D. Powel and 7 of the said persons produced a Return and Draught of Survey, by which the road by Powels ferry is made to be 2589 Perches, and ye new one 2538 Perches, viz : 51 Perches difference.
The Petrs. on both sides spoke for and against the said Road re- spectively, as they were engaged on either side, & another Petition against the said Road was also read, signed by several Inhabitants near Schuylkill, and the parties being Ordered to withdraw, the Board took the whole into consideration, and it was
Resolved, that there seems to be no sufficient reason given for erecting a New fferry, by those who petition for it, that the ferries already Established appear to be sufficient to accommodate the Coun- trey, and ought not to be so much discouraged as the present upper fferry necessarily must be, upon granting another above it. That the County Court may grant any such Road as they shall find to be convenient for the Countrey to bring their goods to a nearer Land- ing : But that no other public fferry over Schuylkill can be allowed untill a much closer and better settlemt. of the Country shew a greater necessity for it than at present appears.
The Govr. laid before the Board an answer of the Assembly to his last message, deliv'd. him on the 28th of last month which was read in these words.
The Assembly's answer to the Govrs. message of ye 24th of De- cemr. 1706.
May it please the Govr.
This Assembly, with the Expence of much time and labour, hav-
Esq'rs. Richard Hill, Jasper Yeates, 1 J Esq'rs.
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ing Endeavour'd to accommodate the Bill of Courts to the Governrs. Demands, on all such points as they find consistent with the Laws of England & our former Establishments Expected his Concurrence Or at least some proposals for an amendment of what he thought disagreeable or repugnent therein to an English Constitution ; But we find to our great Dissatisfaction, messages filled with matters very foreign to the Bill, & serves only to divert us from proceedings, in order to Establish the Courts and open the Current of Justice wch we have so Earnestly laboured for. But in as much as the Govr. by his last message thinks fit to point out certain passages in our former Resolves, being (as we suppose them) of the 29th of Novemr. last to make some of those titles he gave them, We find ourselves obliged to take notice of his remarks thereon, in manner following.
It is the opinion of this House, That what the Govr. is prevailed with to animadvert upon the 4th Resolve concerning the Secry's. Concealmt. of the objections of the Board of Trade against some of our Laws will upon a fair & indefferent hearing of what we have to say prove very ineffectual to Rectify the Secrys. mistake in that mat- ter, which with some more articles that are to be exhibited against him, we intend to lay before ye Govr. in due Time.
As to the Govrs. Remark upon our sixth Resolve, we are ready to make good what we formerly Voted in that Case, and tho' the Govr. may be drawn by wrong Information, to Patronize such a mistake ; Yet the Assembly (as much strangers as he is pleased to suppose them in things of that nature) did Resolve it N. C. D. from the un- derstanding they had upon their perusal, as well as hearing of the statute at large in that Case.
We dont say that the Govrs. scheme is wholly rejected, as the message seems to report, but all the valuable parts of it are Compri- mized or supplyed by our bill, & the rest rejected for reasons wch we could mention if that were like to be a means to accommodate mat- ters between the Govr. and us, But we do not grant, it looks to ar- rogating that we thus express our dissent to the Govrs. proposal, as long as we have a suffrage in Legislation.
As to the 7th Resolve, the Govr. is pleased to suppose, That the managment of the Court of Chancery in the president and Council of Wales, was what render'd it a Burthen to the subject. But we do not find the statute says any such thing, tho' the menagement of Courts in the worse sense may have the same effects here, and what is urged about Courts of Chancery in Colonies, immediately under the Crown, can be no rule to us for the reasons we have formerly given. And not only so, but we understand by several of the Coun- cil, as well as many others whom we Represent, that they are gener- ally avers to it, Which with the Consideration we have had of the Charter of Priviledges, and the former Constitutions of this Province puts us upon our duty to Insist on the Bill as proposed in that point.
As to the Remark upon the 8th Resolve, Wee are still of opinion that the Govrs. answer, to wch that Resolve is a reply, Did admi-
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nister Just occasion for the sd. Resolve, and to be yet more plain, We conceive that the objections to the Bill ought not to have come from the Council, unless they had been authorized by the Queen, or allowed by the Constitution of this Governmt., to give their suffrage in Legislation ; Therefore, We hold it improper for them thus to stand in opposition to us by whom they are represented.
As to the remark upon the 9th Resolve, Its answered in the opin- ion of the House upon the 8th Resolve, to which we refer, and shall only add, That we cannot conceive a parity of reason in what is men- con'd about the attorney General, & others in England who are not represented by us, & the Governrs. Council who are so represented. Nevertheless, when they are directed by the Queen to object our proposals in Legislation, as the others are against the Laws, We shall think it intolerable to attack them as the Govr. is pleased to suppose, (tho' we cannot grant,) that we do by the said Resolve and not before.
As to the Govrs. Remarks upon the 10th and 12th Resolves, we say, That it was very obvious to the Assembly when they came to those Resolutions, That the Establishing of Courts, & opening again the Current of Justice for the Relief of the oppress'd, (which the Governr. upon several occasions declared, he with the advice of his Council would do by an Ordinance,) must be such an Establishment as would Revive the Pleas and Process, Otherwise Instead of a Cur- rant of Justice a Dulge of Oppression would overwhelm ye people, by putting them to Extravagant Charges in Commencing new ac- counts as well as Endangering the Debts of many, by the opportu- nities thereby given for Debtors to abscond, wth many more Incon- veniences.
And as to that part of the said remarks, which would render our Resolve to Reflect on the Governr., the Council, the last Assembly, the Speaker of this, and the Lawyers of ye place, Wee take it to be a meer strain upon our vote, which admitts of no such Latitude; and we are still of opinion, that whoever advised the Governr. to establish Courts, in the sense we understood him, and as Expressed in the said Resolve are as they are there deemed, and we have further to add, That in as much as there is an Assembly ready to joyn with the Governr. in a regular establishment of Courts, Therefore we are un- animously of opinion, That it is not in the power of the Governr. by any Ordinance, without the Assemblys Concurrence, to Establish all necessary Courts in this Province, even in the Governrs. own terms, & as he is pleased to Express in his speech & messages to this House.
And as to the Remark upon the 13th Resolve, This is in great part answered by the last, nor will the pretence that it cannot be done be a Reasonable Law be any Excuse, till the Bill as now pro- posed by the House is shown to be unreasonable, wch has not yet been done, But the Govr. might also consider, That Concealing the objections of the Lords of Trade to the prejudice of the publick is a great ingredient in the said resolve, And the House has given the Govr. no occasion to suppose they will shew themselves irreverent
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towards him, however unwarrantable his Ordinance may be; but we think it a great mistake to Conclude, That the Councellour named in our Resolve will have so many taken into his Rank, for we have Enquired of our Speaker, & the other members of this Assembly who were of the last, and searched the Journals & find no cause to bring them into the Rank. But if any of them have favoured that opinion of Establishing Courts by Ordinance, without the Consent of Assembly, (as they do not remember they have,) they respective- ly declare, that since they had the opportunity of a mature Consi- deration of the Royal Charter, they can see no Cause to be of an- other Opinion than they were of when they joyned in those Resolves, Therefore let that Councellour stand by himself till we find fitt Com- pany for him.
The Govr. has no just cause to Conclude that the Resolves where- on he thus spends his animadversions do merit those Titles he has been pleased to give them, and we see as little reason for him to take that as an indignity to himself which we intend only to Introduce a Charge against such whom we have just Grounds to believe occasion- ed these misunderstandings between him & us.
We are very sensible that the Governmt. of England is allowed by all that understand it, to be the happiest in the world, and that the particular Governmts. in the Queens Dominions are so too, when under a good ministration, and we also know that the privileges of the people consist not in divesting the Govr. of power & support, and we hope no such thing can be justly charged upon the people here ; But on the other hand, If a Govr. would divest or Deprive the Queen's Liege people in her particular Governmts. of the Privileges, that by the Statute Laws which are made for the Publick good, as well as by the Common Law, (which is their Birthright) they ought to enjoy. We are clearly of opinion, That such a Govr. can not expect the peo- ple with Chearfulness to support him, and we find by the Statute of the Eleventh & Twelfth of William ye 3d, Intituled an act for pun- ishing Governours of Plantations, &c. That the Parliament of Eng- land have made good provision agst. Govrs. Oppressing the subject or Violating the Laws of England, or of the Govmts. under their Command.
That the people of the Massachusetts in New England could not pretend to greater privileges than the Propry. granted to the purchas- ers and adventurers here, though we do not Enjoy them, nor can have a regular Establishment as yet settled, But waving what may be added here on that head, being obliged to Consider the latter part of the Paragraph, We are now answering, which would Leave us no more power beyond Concurring in making Laws, than can be derived from the Proprietary's grants alone; We take leave to inform the Govr. That if the Royal Charter be rightly Considered the adven- turers and Settlers of this Colony are become Intituled to other ma- terial parts of that Charter besides the Right of Concurring in Legis- lation, and if we were but allowed the proper Incidents to that and have the powers of Judicature settled according to the Rules of the Common & statute Law of England, so far as they can be adapted
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