USA > Pennsylvania > Colonial records of Pennsylvania, Vol. II > Part 34
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The Conference is desired with the whole House to morrow, at two in the afternoon, at which time notice shall be given of the place.
Ordered, that Judge Guest carry the said message, and then ad- journed till to morrow at ten in the morning.
At a Council held at Philadia., ye 6th of febry., 1706-7.
PRESENT :
Ye Honble JOHN EVANS, Esqr., Lieut. Govr.
Edward Shippen,
Jasper Yeats,
John Guest,
William Trent,
Samuel Carpenter,
Esq'rs.
Richard Hill,
Esq'rs.
Thomas Story,
James Logan.
Caleb Pussey,
A Conference with the Assembly having been appointed yesterday to be held at two this afternoon, the Govr. proposed to the Board to Consider the points that were to be debated, and the whole subject matter being the Bill of Courts, It was Ordered to be read, and as it was reading, so far as there was time, at the present sitting, the fol- lowing heads were marked.
The Constitution of the Provincial Court not the same here as in England, to be an argument, why since the Assembly differs in that material point, they ought not to Claim every other part they desire.
Pa. 2. Appointmt. of Clerks to be by the Courts, not allowed.
The Seal of the Provincial Court to be that of the Province, kept by the Secry.
Pa. 5. V. Writts of Certiorari, to be better explain'd.
7. Judges Commissions to be Durante Bene placito only, and the method of their being convicted upon an official Misbehaviour, to be discoursed.
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XI. Licensing of Publick Houses, not to be altered.
12. Fines not to be granted away from the Proprietor.
Limitation of the time for the sitting of the Provinciall Courts, not safe.
13. The power of the Corporation not to be enlarged.
14. Upon removal of Causes out of the Mayors Court into the Supream, the fines not to be granted to the Corporation by act.
15. Justices of the County and City, their Jurisdictions, by which the whole power, even in Civil Cases, are granted to the Corporation alone, not to be allowed.
Clerks nominated by the Justices, and Justices signing writts, not to be allowed.
16. Judgments not to be given at the 6 weeks Courts.
The Board having proceeded thus far, the time appointed for the Conference drawing nigh, the Council adjourned for an hour & a half, & appointed after that time, viz : at half an hour after two, to meet at Edward Shippen's, and hold the Conference there, of which the said Edward was Ordered to give the House notice.
At a Council held ye same day in ye afternoon, at E. S.
PRESENT : the same as before.
The Council being sate, the whole Assembly waited on the Govr. in order to hold a Conference, and the Speaker presented the House accordingly for that purpose, and being all seated, the Govr. told ym that finding much time had been lost in sending messages and re- ceiving answers, he thought ffit to propose his method of Conference which he had found to be the shortest and most effectual for dispatch of business.
The last two messages, by which this Conference was appointed, were read; And the whole Bill being first mentioned to be ye sub- ject, the first head agreed upon to be debated was according to what had been before proposed, the Right and Power of appointing and Removing Judges, & ye Clause in the Bill was read.
The Govr. told the House, that at his arrival in the Province he found the Power Lodged in the Proprietor and his Lieuts., but that by this Clause the Assembly would have a power to turn out the Judges when they thought fit, and without any Conviction, but the Govr. would have no power at all, which was most unrea- sonable.
The Speaker desired their last answer upon that head might be read, which was, that they did not propose that the Judges and Jus- tices should be otherwise appointed than by the Govr. but that they may be removed when they are proved Guilty of Official misbeha- viour, and that this was according to Judge Mompessons Draught, which he prepared pursuant to a Statute made in the last year of King Williams Reign, in order to be putt into the Bill of Courts here, &c.
The Speaker proceeded, that seeing it was thus enacted in Eng- land, tho' it did not reach us, Yet the People of this Province had a
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right to Claim it, and therefore the Assembly thought it incumbent on them to enact the same here.
It was answered, that whatever was enacted in England was for certain reasons that were strong enough with them, but they might not hold here where we are under such different Circumstances, but that the Assembly ought further to explain what was intended by that Clause in the Bill, where 'tis positively said, that upon an ad- dress only from the Representatives, the Govr. shall remove any Judge and shall appoint another.
The Speaker said it could never be intended that the Govr. should turn out an Officer without sufficient reasons shewn him for it by the Assembly, for without this he would have just cause to Slight their address as trifling.
It was then desired yt if this were the meaning of that clause, it should be so expressed in plain terms, and be fixed how the Con- viction should be ; the Council proceeded and said, that should the Assembly impeach any man, it was but an accusation, that it has been the fate of Innocence in most Reigns in the world at some time or other to be accused, and if this were sufficient to condemn a man none would be safe, but the great security is, that there must be a Trial, and if upon a fair one any man is Convicted, he has but Justice ; That in the Bill there is no mention made of proof or Trial, nor if it be intended there should be any such, does it ap- pear how it is to be obtained. It was observed, that in England the Parliament consisted of a House of Lords and a Honse of Commons, that the House of Commons are no Court, for the whole House cannot administer an oath, but the House of Lords is a Court of Record where a fair trial may be had, but that our Assembly having no such authority there can be none before them ; that before any person should be condemn'd he ought some where or other to have that Justice, and that this should be agreed on and inserted in ye Bill, Especially seeing the House declared that was their sense of the matter, and that an Officer should not be Removed but upon Proof and Conviction. The Speaker insisted that the Bill in that point was according to the Act of Parliament, and it was not safe to recede from it, that the practice of England would best declare the method when there was occasion to use it, and there they desired to leave it.
'Twas answed that the Constitution of England & ours much dif- fer'd, that the Parliamt. there had their Journals for their directions, to which in cases of difficulty they had recourse; that there could be no such thing here. That it was to no purpose for the Assembly now to say what their intention or meaning is in any Clause, for when an act is once in fforce the express words alone must be ye Rule, and these in the Bill positively say the Govr. shall remove one Judge & appoint another without any Conditions, and barely upon an address, which, whatever the House may alledge, neither is, nor ever was, so in England.
The Speaker & other members desired that it might be referred to
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that act of Parliament which not being at hand, they further craved the point may be left.
It was objected that the issue of ye debate ought not to depend upon the act, for tho' that should even prove to the purpose, that has been mentioned ; Yet it did not follow that because it was so in Eng- land, therefore it should be enacted here, unless the same reasons held with us as with them.
This point was then left, & the Govr. proceeded to the clause which appoints the Judges to hold their Offices during their good Beha- viour, to which he said, as before, that in this Province he under- stood their Commissions had always been durante bene placito, and no otherwise, and he saw no cause to make an alteration. The Speaker pleaded that in England the Judges held their places by virtue of an act, past in the 13th year of King William, as it was now proposed in the Bill here, and Judge Mompesson, in his draught for Establishing Courts in this Province, had also done the same, & that as it now is the peoples Right in England, so that Right followed them here.
The Govr. told the Speaker that he knew nothing of that draught, but desired to know whether any Govmt. in America had followed the example, if it were ffitt to be practiced here, it as much concerned the rest of her Majesty's plantations, & asked if ever they heard of any such Constitution abroad.
It was further said, that the mention'd act of parliament was enacted long after the settlement of this Govmt., so it could not give a right to the people here.
The Speaker produced a printed piece, called the frame of the Governmt. of the Province of Pennsylvania, containing Concessions granted to the adventurers into the said Province, by the Proprietor, in the year 1682, at London, by which the Magistrates & officers to be by him appointed, were to continue in place during their good be- haviour, from whence the people of this place, he said, had a Right to what they craved.
The Govr. asked if that frame of Govmt. were now in fforce.
The Speaker answered, they hoped to prove it to be still in force, at a proper time.
It was asked if that were now in force, since the whole Constitution there laid down, is so different from ye Present, which makes them an Assembly, by what power they could at this time act as an assembly, since they are not so, according to the Constitution, which they plead is in force.
It was further desired that it should be explained what was meant by a proper time, in which they might prove that Charter to be in force ; if it be pleaded here, to shew the People's Right, what time can be more proper than the present, in which the matter is debating.
The Speaker waved this, and proceeded to plead that it was the People's Right, that formerly the Judges in England held their Offi- ces upon the terms that were desired here, tho' afterwards by some means or other it might be changed, that he had heard of some be-
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fore ye Enacting of that Law, who would not accept that office upon any other terms.
That the methods used in the Reign of K. James to make the Judges countenance his arbitrary proceedings and the Abuses that followed upon it, shewed the Parliament in the following Reign ye necessity of putting it out of the Power of the Govmt. to dis- place any Judge but for an Official misbehaviour ; That by the mentioned act the Right of the People was only Restored to them, for it was theirs before, however they had been kept out of it. This of Restoration could not be agreed to, But it was answered that the Parliament of England might doubtless have good Reasons to have such a Law Enacted, but the Same would not hold here ; That in ye Kingdom there is a Great choice of Good men, but here 'tis difficult to obtain any to Accept of the place, for there is no Provision made for their Support; That they should settle a Salary, to make it worth the acceptance of a Person duly Qualified, as 'tis in England, where they have Large Salaries, and then there might be some more shew of reason for the Assembly to direct his continuance.
The Speaker replied that such a settlement might be made here- after by a particular act for that purpose.
Some of the Assembly insisted on it that at some time or other there might also be occasion for it here as in England, that there the Queen might be sued, and an occasion might also happen here per- haps to have a Dispute with the Proprietor or Govr., & therefore it was fitt that the Judges of the Difference should be under no awe or fear of Loosing their places.
The Govr. replied that there had been no Inconveniences found from this method of holding their places durante Bene placito since the Govmt. first began, but that very great Inconveniences might arise, as we are circumstanced, if a Judge could not be removed but for an Official misbehaviour, that there would be no pretence for re- moving an able, good man, where there is such a very slender choice, and an ill man that proved so after he came into office, could not be putt out of it without his own Consent to make way for a better, unless such misbehaviour could be fairly proved against him, which might be a Difficult point, & therefore might be extreamly incon- venient here.
But the Govr. told them it had never yet been thus in this Pro- vince, there had been no justice now administred in this province, nor Courts held for near nine months past, that it was no time now to Contend for these priviledges if they accounted them such, and thereby delay the opening of the Courts again for want of which the people were most grievously oppressed, as if the obtaining of what they craved in a point that is not essential to the being of Courts must be the very terms on which the countrey must be admitted to the Priviledge of Common Justice.
The Speaker said he thought a Judge was essential to the being of a Court.
The Govr. said he had delvd. nothing to the contrary, & admired
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he should pervert his words after such a manner, that tho' he knew a Judge is essential to a Court, yet no man would offer to say that it was essential to the Being of Courts whether his commission was to be in force during the Govrs. pleasure or his good behaviour. And to make this dispute the occasion of withholding common Justice from the Queens subjects was a great hardship upon them; Besides it seemed as if the Govrs. assent to whatever they thought ffitt to crave must be the very terms of the Peoples having any Courts at all.
The Speaker answered that they made not this the terms of the Peoples having Justice.
The Speaker after his first standing up when he presented the House to the Govr. in Order to hold the Conference, having kept the seat for the first two or three times he spoke, and afterwards at the several times he had occasion to speak, sometimes standing but often sitting and at length continuing to sitt altogether without rising at all, as all the members of Council did & always do when they speak at the Board to the Govr. and as the rest of the members of Assembly then likewise did, the Govr. told him that those that spoke to him upon such occasions always stood up, that he must desire him to do the same, for it was necessary in point of good Orders, that whoever spoke should stand all the time, which secured him from Interruption.
The Speaker answered, that as he sate there he was the mouth of the Countrey, being the Speaker of the House of Representatives, that he was to take his directions from them, and ought not to be abridged of his Liberty.
The Govr. asked what he meant, if he intended by that a ffreedom of speech it was not denied him, for he had it fully, but that it was necessary for Decency and Good Orders, that whoever spoke in a Conference with him should stand at the time, and then proceeded to argue with him upon the Business in hand, which was the latter part of what is before mentioned.
The Speaker made two or three short answers to the Govr. upon the same subject, still keeping his seat, and so continued to speak as there was occasion without once moving, upon which the Govr. told him again, that if he spoke to him there he must stand up as others did, otherwise there would not be much notice taken of what he said, for it was necessity for the reasons given. The Speaker told the Govr. he must desire his Excuse, in any thing that lay in his .power he should be very ready to pay him all civil regards but he could not answer him in this, the Govr. continued to tell him of the necessity of every man standing when he spoke, and that he ought to do as others in that case did.
Upon which the Speaker arose and said he was a free agent, and not to be directed by any but the House, that he could continue no longer there, & therefore must break up the conference. The Govr. asked what he meant, would he break up the Conference upon it. He answered yes, he had authority from the House to end it when he tho ight fitt. The Govr. asked if he did it then upon that occa-
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sion, he answered yes, for he was affronted, so the whole House rising departed abruptly with him. As the Representatives were going, the Govr. told them that they saw how a Conference he had ap- pointed for the service of the Publick was broke off by their Speaker, & upon what occasion, & desired that accordingly they should remember it, but they all departed without any further answer. .
Upon their Departure the business being thus broke off, the Board adjourned to ten in the morning.
At a Council held at Philadelphia, ye 7th of febry., 1706-7.
PRESENT :
The Honble. JOHN EVANS, Esqr., Lieut. Govr.
Edward Shippen,
Caleb Pusey,
Judge Guest,
Willm. Trent,
Samuel Carpenter, Esq'rs.
Richd. Hill,
·Esq'rs.
Thomas Story,
James Logan,
The Govr. informed the Board that last night, soon after the Council rose, he reced. a message from the House by 6 of their members very nearly in these words : They were sorry that the mis- understanding that happen'd between the Govr. and ye Speaker should break off the Conference last night, which they were desirous should be proceeded upon. That they desired in the Conference their Speaker might have leave to sitt, or if the Govr. could not agree to this, that then they might hold the Conference with the Council only without the Govr., and they added, being asked that what the Speaker did was not by order of the House.
A message from the Assembly by two members, requested an an- swer to their message of last night. It was answered, that it should be sent, and the following was agreed on and Ordered to be sent in writing.
The Govr. is also sorry that at such a Juncture the House should, without any occasion given, put an end to their Conference, which notwithstanding he is willing should be continued, But seeing the House declares that they gave no directions to their Speaker to mis- behave himself in that point in which he did, and from whence he took the Occasion, the Govr. expects they will now give him direc- tions to behave as he ought, and that he shall first acknowledge his past Error, for as the Govr. is in this Govmt. the Queens Represen- tative he thinks himself obliged, while in it to assert her Majesty's Authority, and Require in all Conferences a due Regard to be paid to it, and especially in a point where 'tis so necessary to the Dignity of Publick Order, as Established and maintained by the practice of all other Govmts.
Ordered that Saml. Carpenter and Richd. Hill Carry the said message.
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At a Council held at Philadelphia, ye 8th febry., 1706-7. PRESENT : The Honble JOHN EVANS, Esqr., Lieut. Govr.
Judge Guest,
James Logan,
Samuel Carpenter,
Esq'rs.
William Trent,
Thomas Story,
Esq'rs. Richard Hill, Caleb Pusey,
Joseph Pidgeon.
A written message from the House in these words :
Ordered that Ezra Crosdale & Wm. Garret do wait upon the Govr. and acquaint him that as the Assembly have shewn their Readiness to obey his Commands in Convening before the time ap- pointed by their own adjournmts., so the promoting and advancing the Publick Good was and is their only aim, and more particularly the Bill of Courts which inclined the House so readily to embrace the Govrs. Proposals of a Conference thereupon, And to wave all resentments for the present which the harshness of the Govrs. mes- sage this day, as well as his late speech, (whereof we have yet no Copy, may Justly occasion wch with our request last night for Con- tinuation of the Conference (we hope) is a sufficient Demonstration of our sincere Intentions in the Premises.
And that we are in earnest Desirous that the Courts of Judicature should be again opened for the Relief of the oppressed; and as we were sorry the Conference broke off as it did, we are also glad to find the Govrs. readiness to continue it.
As to the misunderstanding which happened between the Govr. and the Speaker, who was by the appointment of the House the only manager in relation to the legal part of the Bill, he has given the House satisfaction that his keeping his seat while speaking at the latter part of the Conference, was purely for his Ease, and not with any design to offend the Govr., neither could he conceive it an offence, being a priviledge allowed here formerly on the like occasion, and never objected against that he knows of, therefore he had reason to expect the same Civility now, but instead thereof, the Govr. com- manded or required him to stand up, or little notice would be taken of what he said, whereupon the Speaker considering that he was at a free conference upon matters of Legislation wherein the Kings Let- ters Patents make the Concurrence of the Govr. and Representatives equally necessary, tho' as he exprest he was willing to pay all Civil Regard to the Govr. yet he was not to be commanded or directed upon that occasion but by the Assembly, so that he Judged it proper to break up for the Present, & return to the House, in Order to take their Directions for the future managemt. of the Conference, which the House is of opinion was more prudent than that the mis- understanding (like to be occasioned thereby) should be aggravated to such a height as to have terminated in unseemly language.
Therefore we humbly propose that to avoid the like misunderstand- ing for the future, & that more time be not lost, but that the Con- ference may be carried on & the Preliminaries (that should have been first agreed upon) be forthwith settled and adjusted, which if the
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Govr. please, we propose to be by a Committee of this House & an equal number of the Govrs. Council, or others as he shall think fitt to appoint, and this the House insists upon to the End only that they may Speak their minds with more freedom, and with all they are informed that it is not the Practice in other Provinces that the Govr. should be present at free Conferences.
Which message being fully considered, the following was Ordered, in answer from ye Govr. to the Assembly, febry ye 8th., 1706-7.
The Govr. expected that his message to the House sent yesterday in writing, would have appeared so mild and reasonable, that it would be impossible to find in it any matter for Resentment, all that was required being only that the Speaker should acknowledge his past error, and that directions should be given him to avoid the like for the future. But seeing the Assembly, by their witten message of this day, have thought fitt to plead for and to defend the Speakers disrespectful behaviour, and his bringing a Conference appointed upon a business of such great Importance, to so abrupt an end, with- out any other occasion given than that after he had for a long time together kept his seat, when he spoke he was for the sake of decency and good order, (as well of his Duty,) required to stand when speak- ing as all others there did, By wch the House, instead of disallowing his Conduct, seem unhappily to involve themselves as parties with him, and further from ye Kings Letters Patents, which here as in all others of her Majesty's Govmts. make the assent of the ffreemen ne- cessary in Legislation, seem to infer an equality between the Queens Representatives and the Peoples. The Govr. thinks her Majesty's honour and Dignity so nearly concerned in the point, that he cannot now wave the affront without a suitable satisfaction, and must inform the House that none of her Majesty's Subjects, in this Province, can be exempted by their being in the Assembly from their Duty and obedience to the Govmt., in a point which makes no infraction upon their Priviledges. That it is no Priviledge of any Representative of the People, either in England or elsewhere, to sitt when he speaks to the Superior of that People ; that the Govr. having the chief com- mand of all the People in this Province, is theirs, & therefore their Representatives Superiour, and in behalf of their Majesty, our Sovereign must exact their Duty and respect ; That the Speaker of the House can have no more authority in his own person at a Con- ference than any other member, and that when any particular respect is there shewed him 'tis only of Courtesy ; That in such Points where there is no Special Priviledge, he is under equal obligation with any other Person, and the Govr. expects, that not only the Speaker but all others shall behave themselves accordingly.
If the House will in this point discharge their duty the Govr. is very ready and desirous the Conference should be continued, and upon this occasion thinks he is obliged to be present at himself. But if for the sake of defending a particular persons contumacy, of which the Govr. cannot now in regard to her Majestys Authority wave tak- ing notice, they shall neglect the Interest of the Publick so deeply concerned in the Bill which has been so long before us, the Govr.
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