USA > Pennsylvania > Colonial records of Pennsylvania, Vol. II > Part 33
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That this want of Justice is an exceeding great failure amongst us, and matter of most just complaint must be readily Confest, Yet after all these 15 weeks mostly spent upon what I expected would be done in fewer days, Unless some measures be altered, we seem to be very little nearer the point than when the first objections were made, lett us therefore so far look back as to inquire where the ob- struction lies, and remove it if possible, that so the Courts may be once again opened with your Concurrence if to be obtain'd, and after whole nine months vacation, Her majesty's subjects may once again find that Justice by Law in this Province which is dispensed in all the Rest of Her Dominions.
Upon the Objections I made to your Bill, the longest perhaps that ever was drawn up in America, You thought fit to make two or three amendments, the rest you Insisted on to a great part of which (that I might condescend as far as was possible for me,) in my last mes- suage I also gave way, and the Chief points we diffr'd upon, I then noted to you and gave you my reasons, wch if they did not satisfie I was willing should be debated in a Conference, but instead of joyn- ing with this, or taking any further measures to accommodate the matter, you spent some days in drawing up a long answer to that message, and then without giving me any prior notice you adjourned yourselves for 6 weeks, leaving the whole business, tho' of very great importance to the publick, to lie undetermined in the same Condition it then was, a proceeding perhaps the most unpresidented that ever was known upon the like occasion in any English Govmt.,
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to wch adjournment, tho' extreamly unreasonable, I have notwith- standing so far yielded as to allow you a large space of time to attend your more private occasions.
Now the principal of those objections that I found myself obliged to insist on, tho' you have taken upon you to tell me that I gave no sufficient reasons for them, I shall mention again, and desire you as you think yourselves obliged to Discharge the trust reposed in you by the Countrey, in providing for its safety and well being, to consi- der with such a Disposition as may best answer the end of your being called, whether the Reasons I have often given you, & shall now in part repeat, will not be thought solid & sufficient by any im- partial Judges.
You have proposed that the Chief Magistrates should hold their places during their good behaviour, and that the Clerks should be . appointed by the respective Courts, which you seem to claim as your Privileges, (if they be any) from one Statute of the first of W. & M., & another of the 14th of W .; But I have sufficiently told you, that at my arrival here I found the power of appointing & dis- placing these officers invested wholly in the Propry. and his Lieuts., that the practice was the same in most if not all her Majesty's Go- vernments in America, & that since it was so lodged here it was not fitt for me to make any alteration in it. And now I shall further tell you, that I cannot think that we, in this Province, are to Copy im- mediately after every act of Parliament in England, because the same reasons do not hold here as there. I could mention several Acts pass'd in England, that you would by no means, I suppose, agree to enact here, and this act particularly, as it does not reach us, so it has never been enacted, that I can hear of, in any Govrnmt. immediately under her Majasty. There were some reasons at that time to be given why their then Majesties should assent to such an act of which none will by any means hold here, and I shall further mention some of the Inconveniencies that might ensue upon your Bill as 'tis prepared. You have very widely, from the practice in England, proposed that there shall be three Judges, but without any sufficient allowance to support them in their offices, which if you think the Practice of England in reality ought to be your standard, You should have provided for here as well as it has been done there ; but since you are of different sentiments in this point what follows is, that according to yº Draught we must fill those offices with such men as residing in the Countrey have other business in it to maintain themselves, & yet leisure as well as skill enough to attend this ser- vice, & decide the nicer points of law, of which most that live not by that profession, (and such cannot accept of your allowance to the forfeiture of all their other profitts,) are utterly incapable, & there- fore the whole method will be found, I can assure you upon my experience, either wholly impracticable, or at least so difficult, that it will be next to an impossibility to find such men, and perswade them at the same time to act, But were it allowed that three such Gentlemen might be found, in case one of them only were depended on upon a particular service, (as at sometimes out of ten Justices,
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'tis difficult to find three to make a Bench, and by reason of this difficulty, some of the Courts have been known to drop,) then upon any unforseen disability or Declining of Duty, the Court must fall if it be not left in the Govr. to appoint another in his stead, which by this Bill he has not power to do without a Judicial process. It has been Clamour'd, I am informed, that I would not agree that a Judge should be displaced upon proof made by the Assembly of his official misbehaviour, but whoever Endeavours to insuate this, is guilty of a gross abuse. I shall never be against displacing any officer, that is once convicted of misbehaving himself, in any point of his Office that may be found worthy of such an animadversion, But to put it out of the Power of the Government to Displace an officer, who possibly may have designs of his own in continuing in place, and yet not Discharge his Duty without a Judicial process, is what no reasonable man I think would advise me to. But if the Assembly will agree to allow a reasonable Encouragement to an able professor of the Law, who by his Education and Practice may be qualified for the service & business your Bill cutts out for him. I should then think it more reasonable that as the Countrey pays him, so when he is proved by them to misbehave, he shall lose its place with all its profits. At the first opening of this Assembly, I did not at all doubt but you would readily embrace the Offer of that worthy Gentleman, who is so heartily approved of by all men of honr. that Know him, & who has already accepted the place here, & only waited for a due encouragement from the Countrey. But I perceive you can not be of the opinion of most others who thought the offer a real Happiness to us, and I wish you may not have faln into the senti- ments of an eminent member of your house, Who has under his hand, (as I am informed) expressed his Dislike of that Gentleman for this office for two reasons, of which the first was because he says, He is in the Propry. Interest, & and the other, if I know the Gentleman I think is positively false.
As for the Clerks, they are officers who cannot properly fall under the notice of the Crown in England, they lie so remote from what comes under her Majesty's eye, that 'tis not at all strange the power of appointing them should be given to the respective Courts, but here 'tis much otherwise; We have but three Counties in the Govmt., & these can be very easily superintended & all their officers supplied by the Governour, however in this your Charter of Privileges has made Provision, from which I neither will nor can take upon me to recede.
I have now, Gentlemen, spoke fully to this point. Another is the appropriating of fines, wch I cannot agree should be to any other uses than the Proprys. for the support of Government. I find 'tis alledged that in England the Queen pays the Judges there out of the Publick Revenue, and so you would have them paid here. That the Judges are so paid in England is certain, and so are all officers that I have heard of who have any sallaries, for the House of Com- mons are more dutiful than to direct any other way of payment ; they take care to grant her Majesty sufficient to defray all manner
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of Charges, out of wch she is Enabled to answer whatever is requi- site of this Kind, these officers fall within what is called the Civil List, which is amply provided for, but I desire to Know, since you would have this Enacted into a Law, wch was never so before, what is the fund you provide for the support of Governmt. to Compensate this alienation, however small; as for the Language you give me of my Pocketing the fines, I must place it to the same acct. with much more of the Kind. I hope the People of this Province will at some time or other learn from Experience that tho' they are Generally Excused from those modes of Civility that are Customarily used, they ought notwithstanding to observe the standing rules of good manners, wch all the Civilized pts. of the world acknowledge to be their Duty, and upon this I shall only tell you that I never yet found an Assembly here that tred the Steps the present House seems to do, inclined to grant sufficient even for the Common support of a Gentleman, & therefore why I should grant any part away of what the Assembly never had the Diposal of, seems very unaccountable, but as to the Value of the fines, I must particularly add, that all those of the rest of the Counties have not yet been equivalent to one fourth of what is raised in the City of Philadia. which the Cor- poration claims as their own from the Proprys. Gift. I have largely told you before, that to grant the fines to the Queen, while they of right belong to the Propry., would be an injustice to him, & what Her Majesty her self, I am Inclined to think, would neither desire nor be willing to assent to; if 'tis said that, tho' granted to the Queen, they still remain for the support of Govmt., 'tis to be re- membered, that when they are dismember'd from the Proprys. Re- venue, while the Governmt. is in him, the Queen than has a right, by her officers, to inquire into the disposal of them, and this seems to Import as if the Propry. were no proper Trustee, tho' of right they belong to him alone. How they ought to be appropriated, I have already told you. As to the Lycensing of Publick Houses, the same answer holds that I have told in relation to the Clerks. It would be absurd to imagine that every Public House in England should have a License immediately from the Crown, 'twould be found impractica- ble there, but 'tis easy to be managed here by the Governr. It has always been so, & is generally so practiced in the rest of her Majesty's Dominions abroad. The example of England in this Case will hold no better than the act for granting her Majesty an Excise almost equal to the first value on Beer or Ale would to you, if it should be pleaded. But what Privilege would arise from this, or indeed any of the other Points in dispute, to the people, should they all be granted, I can by no means understand. I have proposed to agree to any measures that shall tend to a better Regulation of Publick Houses, without divesting the Popry. of his Just Right, than wch if you propose any thing further, it must be with an Eye to some- thing else than the benefit of the Publick, wch I shall be always as ready to Consult in what is truly so, as any of you yourselves can desire, but I cannot suffer myself to be led away with pretences for the Publick, wch in realty carry no such thing in them, but seem to
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be levelled at a Diminution of the Rights of that part of the Consti- tution, in wch I am more nearly concerned without advancing any other.
These Reasons, Gentlemen, I once more offer to you, and if after your late method you tell me you cannot find they have any weight with them, You ought at the same time to remember that 'tis setting up your own opinion for the standard of Reason; Your Proceedings of this kind have been very singular, particularly Your Coming to Certain Resolves almost upon all occasions, & sending these to me instead of Reasons in answer to my objections & messages, as if your Opinion must in all things be my direction in the Discharge of my Trust, and yet when the House of Commons in England have pro- ceeded to Resolves upon a matter in Debate, the Lords have some- times disputed whether after this they ought to hold any Conference with them, for this Method seems as if intended to Determine the point with those that make them, but I hope you will not build so much on yours, but Consider the end of your meeting, wch is not to Dispute or shew your Talents that way, but to answer the Exigencies of the Countrey. What those are at this time, most people are deeply sensible. There is a great Cry of Oppression for want of Justice ; this I have seriously recommended to you, and you have provided a bill for it which notwithstanding my Judgment, and the best advice I can have, can by no means approve of, yet that the Countrey may no longer be without, I have agreed to every thing material in the Bill itself, that's necessary to their Establisment. But this you will not think sufficient, unless I make new Grants that you were never in possession of before, and for which you alledge no Reason but that in England it is so without any allowance for the dis- parity between that mighty Kingdom & this Province, one of the least in her Majesty's Dominions, & then you vote for yourselves that thus it ought to be, & stop there. I would earnestly press you Gentlemen, to Consider what other Govmts. & what impartial men of sense abroad or at home must think you intend by this, in taking measures that no people in the world ever attempted before under an English Constitution. You plead that some far greater Privileges than what you Enjoy are your Right, & that you have been unjustly Kept out of them ; but what those are I never yet could hear, either from you or any other person living. If this be really the Case you may have reason to Complain ; but to this not only I, but all that I converse with are absolute strangers, and were it indisputably so, Yet ought that to be a reason with you why you should further Debar the Countrey of that greatest of all Privileges, Common Justice, wch you effectually do, while you refuse to Concur in a Bill for settling ye administration of it, when I am ready without any Delay to agree to, full as much or more than ever you have yet had since you were a people. Lett this be once done, and if you have any further demands I shall Expect to know the foundation of them, or must believe they are wholly Groundless, for as yet I have never been informed you have Cause for any.
GENTLEMEN :
'Tis not without great regret I find myself obliged to Express my
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thoughts thus. I am very sensible how great an unhappiness it is to any Govmt. when unanimity reigns not amongst its members ; seldom has there been a Dissolution by any means but open fforce, where the want of this has not been a forerunner ; I would therefore take all possible measures to avoid misunderstandings, and I have seriously reflected upon what might occasion them, wch has led me to consider what I have mett with since my arrival among you. This is now the 4th Assembly that has mett me in this Province, of which the two first or a majority of them, unhappily fell into the same measures that seem now to be taken ; the same temper then too much appeared, as the minutes of the Proceedings of those times largely show, & I am sorry I have reason to say that it appeared also in many of the principal members that Compose the present House ; The Countrey became sensible of this, I suppose, for the next time they elected, I mett a Different sett of Representatives, who applying themselves in earnest to the business Incumbent on them, went through it with such success that they past about two thirds of as many acts in number as they sate days, whereas with the two former or with the present, I have not yet had the happiness to Enact one, and yet I can positively affirm that I never was more disposed to pass any act in my Life than I am to see this for Establishing of Courts effected; I request you seriously to weigh this, and not to give occasion to observe the constant strain of un- kindness that runs through your Proceedings to that worthy Gen- tleman the Proprietary, to whose interest, care and indefatigable application for the advancement of this Colony under the blessing of God, it has principally owed its most flourishing Condition as most Impartial men who have been acquainted with him must and will allow, whatever some thro' their great Disaffection may en- deavour to suggest to the Contrary, who now rise up against him as an infringer of your Rights, to maintain & support which has not- withstanding (as he too sensibly feels) been the Expence of most of his time & Estate since he has known it, & is now left in much worse circumstances than at the first minute it became his. This is so notorious to all who have had opportunities of duely considering it that it should be sufficient a Inducement to all honest men, espe- cially such as living under, and acting in his Govmt. owe him an im- mediate Duty unanimously to Concur in composing all matters that relate to his concerns here, wch at this time particularly might rea- sonably be expected from the Representatives of the People, as for your Jealousies of a surrender, & Providing against it there is nothing of this kind more certain than that the Propr's. Endeavours to hold this Governmt. against the attacks that have been made upon it, have occasioned him a great share of his Troubles, nor would he ever yet harken to any proposal of parting with it, but upon terms that might leave the People secure and Easy ; Would he have given way to any other thoughts, his affairs had been in a much different Con- dition, all which makes it appear much the more unaccountable to find those whose tongues should be employed in kind acknow- ledgemt. turn them directly to the contrary. If you believe that
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should this bill pass as you now desire it, it would really prove a security in case of a Surrender, You ought to Consider that such a surrender at this time would undoubtedly carry a Repeal of all Laws presented after it, nor would her Majesty ever agree to such a Con- stitution in this place, so different from the rest of her Dominions, therefore whether the Propry. hold the Govmt. or part with it, which to the best of my knowledge you have less reason to appre- hend than you imagine, 'tis to no purpose to contend thus since the only effects of it will be to deprive the people at present of that certain and undisputed right of the administration of Justice, and throw all into confusion, which will prove by much the readiest method to produce a Change without any terms at all, and whether those who are inclined to think unfavourably of your Proceedings may not have some Umbrage to suspect that the Spring of these Counsels on which you proceed, has a mixture of some such design may perhaps well deserve your thoughts and Endeavours to guard against.
I have been very prolix to you, But 'tis with a design to save time and not to spend it. I have thus given you the substance of what I think proper you should know from me, & shall, as I have done many other things, pass over whatevery our last address contained of the same temper that I have Complain'd of, the Despatch of neces- sary Business being my sole aim. Only there is one Paragraph which Extorts my notice, that is where you give it as your Opinion, that it is not in my Power to Establish Courts without your Con- currence, even in my own sense of the matter, To wch I shall only answer, that from the Judgment of persons that I can have a more Certain Dependance on in points of Law, I am assured I have that power and shall assert it whenever there is occasion, and perhaps not much to the advantage of those that shall adventure to oppose it, But I desire the whole should be done by a Law on any reasonable Terms if 'tis possible.
I must further also take notice that in the votes you have published you have resolved, That the freemen of the City and County of Philadia. had a Right, on the first of Octobr. last, to elect two persons for the office of Sherif, to be presented to me, of which I have never yet been sensible. I ask not your opinion at this time, because you have Deliver'd that in ye mentioned Resolve, but as 'tis only an opinion without Debate perhaps on the other side, I doubt not but that when the Law relating to those Elections is fully Considered that Resolve will appear too hasty, for could I have so understood it, the person you there mentioned should have had the place at that time, for I had no intention to oppose any right of the People upon the point, however the contrary may be insinuated.
I shall now sum up, & upon the whole ernestly press you to Con- sider what has been said, and if you cannot at present concur in Opinion with me upon those heads I have mentioned, I desire it may, without Delay, be Debated at a conference, & Lett us without further Loss of time, Conclude at least upon one act, that is of such absolute necessity that Govmt. without an establishment of that
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kind, cannot subsist, but become an anarchy, & in which all her Ma- jesty's subjects in the Province are so nearly concern'd.
The Speaker requested a Copy of the said speech, but the Govr. having told them at first, that having no other copy but that in his hand, he could not then part with it, & therefore desired they would the more diligently hearken to it, he told them again, that if the house, notwithstanding what he had said, desired a Copy, he would further consider of it & give them an answer.
A message by two members of Assembly in the name of the House, desired that the Govr. would be pleased to favour the House with a Copy of his speech. The Govr. answered, that he would send to them by a message from the Council.
And the Govr. proposed to the Board, whether it would be expe- dient to grant the House a Copy or not, since it had been the method of this Assembly to spend several days in answering whatever had been said or sent to them, which had been one great occasion of the Loss of so much time. It was the Opinion of the Board, that it would be more advisable not to grant any Copy at this time, but to press them to a Conference immediately upon the subject matter in hand, viz : Establishing the Courts, and that if in that Conference they should desire to take notice of any part of the said speech it might be communicated to them, and afterwards they might have the whole to enter into their minutes, but that to grant it at present would endanger the Loss of too much time.
Edwd. Shippen & Judge Guest were ordered to carry the sd. message to the House, & then adjourned till to morrow at nine in the morning.
At a Council held at Philadelphia, ye 5th of febry., 1706-7.
PRESENT :
Ye Honble JOHN EVANS, Esqr., Lieut. Govr.
Edward Shippen,
James Logan,
John Guest, Esq'rs William Trent, Esq'rs.
Samuel Carpenter, Richard Hill.
Judge Guest reported that according to order, Edward Shippen and himself had delvd. the mission they had in charge last night, and that the House seem'd inclinable to a Conference.
A message from the House to the Govr. in these words :
Ordered, that Samuel Richardson, Jos. Hopps and Jos. Baker do wait on the Govr. and acquaint him that forasmuch as by his mes- sage last night he was pleased to propose a Conference upon the Bill of Courts, wch this house is inclinable to embrace, Provided the subject matter thereof be first settled & agreed upon. Therefore the Assembly propose that the Govr. will be pleased to acquaint the House with the particulars, which are to be the subject matter to be debated on at the said Conference, with the Reasons of the Govr's. objections to the sd. particulars, and the time & place when & where to be held, and whether wth the Whole House or a Committee ; which being intimated & settled as aforesaid, y® Assembly will be
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ready to comply with whatsoever may be proper on their parts, to answer the Govrs. Expectations in the Premises.
Which message being taken into Consideration, & some time spent in the Debate, it was resolved that an answer should be sent to them in a message as follows:
The Govr. proposes the Bill of Courts as last sent up to him to be ye subject of the Conference, but more particularly those heads mention'd in the latter part of the Govrs. last message to the House in writing, sent on ye 24th of December last, beginning at the Para- graph mentioning that the Power of appointing and Removing Judges and other officers, was invested in the Govr. at his arrival, &c., and from thence to the end of that paper. Most of the Rea- sons for those objections have been mentioned already, and being to be debated at the Conference itself, 'tis improper to give them now, because it would disappoint ye End of ye Proposal, which is to ac- commodate the matter by discourse, if possible, without further loss of time.
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