USA > Pennsylvania > Colonial records of Pennsylvania, Vol. II > Part 35
Note: The text from this book was generated using artificial intelligence so there may be some errors. The full pages can be found on Archive.org (link on the Part 1 page).
Part 1 | Part 2 | Part 3 | Part 4 | Part 5 | Part 6 | Part 7 | Part 8 | Part 9 | Part 10 | Part 11 | Part 12 | Part 13 | Part 14 | Part 15 | Part 16 | Part 17 | Part 18 | Part 19 | Part 20 | Part 21 | Part 22 | Part 23 | Part 24 | Part 25 | Part 26 | Part 27 | Part 28 | Part 29 | Part 30 | Part 31 | Part 32 | Part 33 | Part 34 | Part 35 | Part 36 | Part 37 | Part 38 | Part 39 | Part 40 | Part 41 | Part 42 | Part 43 | Part 44 | Part 45 | Part 46 | Part 47 | Part 48 | Part 49 | Part 50 | Part 51 | Part 52 | Part 53 | Part 54 | Part 55 | Part 56 | Part 57 | Part 58 | Part 59 | Part 60 | Part 61 | Part 62 | Part 63 | Part 64 | Part 65 | Part 66 | Part 67 | Part 68 | Part 69
318
MINUTES OF THE
must, without further loss of time, proceed by virtue of the Powers with which he stands invested to discharge his Duty in opening the way to Publick Justice again. Ordered that Richd. Hill & Jos. Pidgeon, do deliver the said message to the House, and then ad- journed till 2d or Monday next.
At a Council held at Philadia, ye 11th of febry., 1706-7.
PRESENT :
The Honble JOHN EVANS, Esqr., Lieut. Gover.
Edward Shippen, Judge Guest,
Caleb Pusey,
James Logan,
Esq'rs.
Saml. Carpenter,
Esq'rs.
Wm. Trent,
Thomas Story,
Richd. Hill.
A message from the assembly was delivred in Writing in these words.
Ordered that Saml. Richardson and Joshua Hoopes, do wait upon the Govr., and acquaint him that we are very sensible that his being commissionated by the Proprietr., and Receiving the Royal appro- bation, with other necessary Qualifications required by law, He may be deemed the Queens Representative, and justly demand Supe- riority over the People of this Province, and in that state the repre- sentatives of the people are to address him, and sue for justice against evil ministers, and in all matters wherin the Govr., by virtue of his Lieutenancy has power of Judicature, we hold it our Duty, so far as our Circumstances can admit to comply with what he may reason- ably direct. But in matters meerly Legislative, we conceive (without the least Derogation to the Govrs. Honour,) that the Royal Charter gives us a concurrent power with him, so that we are free agents to propose what we think fitt to pass into Laws, which the Govr., by Virtue of the Legislative authority, may reject or disallow, and so may this House by the same authority dissent from what the Govr. thinks fitt to propose Legislatively ; and when it happens that the Govr. and House of Representatives differ in opinion upon any point relating to Legislation, Its proper that free Conferences should be had, and in those Conferences we are humbly of opinion it would be convenient and necessary, that the Govr. allow the like freedom as the Lords Committee do to the Commons, who in their free Con- ferences sit at a table where every one has freedom of Speech and Gesture, and not under the Check of a Chair man as we are inform- ed. And as such Conferences are necessary, so the method and man- ner of such Conferences ought to be settled, But that the Bill of Courts, which has been with so much care and Pains prepared by this House, & so long stuck at that Board being of such Importance to the Countrey may be brought to some result. We are willing to Confer with the Govr. when and where he pleases to appoint, and we shall give such instructions to the managers on our part as we hope shall give him no just occasion of offence. And as to what happen'd at the last Conference, we desire that the Govr. may be satisfied, (as we are) That the Speakers keeping his seat when he spoke at the
-
319
PROVINCIAL COUNCIL.
latter part of the Conference, was not with design to offend or affront the Gover. ; Therefore we do intreat the Govr. to pass it by, and to go on with the Conference which so highly concerns the Publick good, and that nothing expressed by us in relation to that misunderstand- ing, should be deemed or construed to Extend to the Defence of any misbehaviour, which we assure him neither was nor is the intent of this House.
Which message being considered, and Particularly that the House, tho' they had exprest themselves in much softer terms than usual, yet they had said no more in this than in their former, & still per- sisted in defence of their Speaker. The following answer was Ordered :
The Govr. is extremely desirous the Conference should be Con- tinued without delay, in hopes that what he has long and most earnestly pressed may be effected by it. But as the subject of the late messages is now brought very near to concern her Majesty's authority, he cannot pass it over without some further satisfaction in the point, and to avoid loss of time as much as possible, the Govr. briefly acquaints the House that the power granted to the Assembly of dissenting in matters of Legislation, which is not disputed, being no more in this Province than the Commons Enjoy in England and the rest of her Majesty's Govmts. no nearer Equality can be inferr'd from thence between the Govr. and Governed, than in those other Govmts. That which is alleged of a Conference between Commit- tees of ye House of Parliamt. in England, (were what the House advances exactly true in fact,) will by no means hold parallel in the case in hand, unless it were first proved that those Lords appointed for the Committee had in themselves at other times the Chief Command over the Commons. That the Govr. finding himself obliged to assert the Queen's Authority and Dominion over her sub- jects, cannot give way to any allegations or pretences whatsoever, that plead for the Equality mentioned in his last preceding message to the House, & which theirs of this day still seem to support, tho' in other points more smoothly exprest ; But must insist on it, that in all matters where the Real Privileges of the House are not infringed, a due Deference shall be paid by all persons under his Govmt. to that authority with which he is invested; That the Speakers behaviour at the Conference, however it might at first be intended, was at length affrontive to that authority, & accordingly the Govr. expects he shall acknowledge it by order of the House, and that they will take effectual care that the like be avoided for the future. Upon which the Govr. will be very ready, without any delay, to proceed to the Conference, and to this the direct answer of the House is immediately required.
320
MINUTES OF THE
At a Council held at Philadelphia, ye 12th of febry, 1706-7.
PRESENT :
The Honble JOHN EVANS, Esqr., Lieut. Govr.
Edward Shippen,
James Logan,
John Guest,
Esq'rs, William Trent,
Thomas Story,
Richard Hill,
Esq'rs.
Caleb Pusey,
George Roche,
A message from the House was read in these words :
Ordered,
That Joshua Carpenter and Henry Paxton do wait upon the Govr. and acquaint him that though we hoped our last answer would have given him full satisfaction in Relation to the present misunderstanding, occasioned at the late Conference, yet finding by his message just now sent to the House he expects some further acknowledgement, the house has thought fit to signifie; that the Speaker having submitted himself, in relation to his Deportment at the said Conference, to the Censure of the House, as to the place where. he is properly accountable for any mismanagement there ; and the house having Considered, that no Rules nor Orders were Enjoyned him or the other managers, in relation to modes or Ges- tures of sitting or standing while speaking, (as not apprehensive of the Consequence,) cannot, with Colour of Justice, Censure him for mismanagement or otherwise, for Breach of any Rules or Orders of the House. But for as much as standing up whilst speaking before the Govr. is acknowledged by us to be a Decent and Convenient Posture, we have Censured the Speakers sitting whilst speaking as he did, to be Inconvenient, & had we in the least forseen the Con- sequence, and that the Govr. would have resented it as he did, would have taken measures to have avoided it, and how we have resolved for the future, our late answer will shew. But seeing the Speaker has submitted to the Judgment of the House, and satisfied us that it was not with design to affront the Govr., We hope the Govr. will consider and accept of our proceedings & acknowledgements in the premises, as full satisfaction, (being the ultimate we can give, and without Delay proceed with the Conference, or otherwise pass the Bill, it being the opinion of the House that the matters now under Consideration (however high ye Govr. may strain them) are not sufficient to retard or obstruct ye Publick Good, which being fully debated and Considered, the following answer was agreed on to be returned to the House.
GENTLEMEN :
I have since my arrival in this place mett with so many failures in point of Civility, that for my own part I should be extreamly backward in Resenting them, where I could have reason to believe they were not so intended, and had your Speaker, upon my taking notice of his Undecency in keeping his seat, but altered his carriage in it, this week would have been saved to the Contry, which now by his obstinacy is entirely lost. Since that you have brought the matter more particularly to Concern Her Majesty's authority in
321
PROVINCIAL COUNCIL.
Govmt., upon accot. of which I thought myself chiefly obliged to insist upon satisfaction, Which seeing you now Inclinable to offer, in censuring the speaker's behaviour, upon his submission to the House, which ought at first to have been done, that you and all rea- sonable men may be convinced that I am not willing to have one hour lost that may be laid out on the countrey's service, I again offer you a Conference upon these terms : that at your opening it the Speaker shall with due submission on his own behalf, and by order of the House, acknowledge the Irregularity of what is past, to which if you fully agree, I shall expect your attendance this afternoon at three a Clock, at the Treasurers house, where, till this be done, I cannot think it by any means proper or safe for me, in the Just dis- charge of my Duty and Trust, to proceed to any further Debates.
A full Complyance wherewith I immediately expect to be satisfied of, by a message from your house, which only can, notwithstanding any pretences, convince the weakest judgments you are really desi- rous in Earnest to serve the Publick now in necessity.
JOHN EVANS.
ffebry 13th.
Two members of the Assembly delv'd the Govr. a Written mes- sage in these words.
Ordered that Saml. Richardson and John Hoopes do wait upon the Govr. and acquaint him that the Speaker is willing at the Re- quest of the House & for dispatch of the business in hand to make the like acknowledgment to the Govr. at the time appointed for the Conference as he has done to the House, the substance whereof is contained in our last answer.
To which the Govr. was pleased to send his answer in his own handwriting by the Secry. in these words.
The terms I offered the House this morning for a Conference this afternoon is the very least that can amount to satisfaction, which I do and shall expect exactly as is there required without the least evasion.
JOHN EVANS.
At a Council held ye same day, vizt, ye 13th of febry. 1706-7.
PRESENT :
The Honble JOHN EVANS, Esqr., Lieut. Govr.
Edward Shippen, Judge Guest,
Samuel Carpenter,
Griffith Owen,
James Logan, Esq'rs. Thomas Story, 1 Esq'rs.
William Trent, Richard Hill,
Griffith Jones and ffrancis Rawle in a message from the House, informed the Govr. in these words, That the last message sent to him was the ultimate Resolve of the House, without any Evasion, and further they cannot go upon that head ; therefore is the Govr. please to Continue the Conference, the House will attend him at the time and place appointed this afternoon.
VOL. II .- 14
322
MINUTES OF THE
To which the Govr. answered, that what he had sent them this morning under his hand was the least he could accept of, or they propose ; that he hoped the House would consider of it, and without any more to do attend at the Conference, for which the time appoint- ed was now at hand, and that himself and Council would imme- diately adjourn to the place he had named to them, viz : the Trea- surers House where there was a large Room with all conveniences, ready to receive them.
Accordingly the Council adjourned directly to the Treasurers, where having waited near two hours & none of the Assembly coming it was proposed to adjourn till morning, But Just then the Govr. recd. a message in writing from the House by two members in these words.
Ordered, That Joshua Hoops & Jno. Roberts do wait upon the Govr. and acquaint him that since the Govr. does not think fitt to accept of ye satisfaction we proposed in our answer to his written message this day, we again desire him either to Confer with a Com- mittee of this House, or give his Result upon the Bill of Courts, shew- ing us wherein the same or any part thereof is inconsistent with Law or reason, (as we formerly desired) for this House is willing to Con- cur with the Govr. in any reasonable amendment, without further Conference.
Which message the Govr. having reced. out of Council he inform- ed the Board That he answered to this purpose.
That he was heartily sorry the House could not think fitt to an- swer a proposal that in itself was so easy, just and Reasonable, that he would be glad to take any measures to proceed to business, that the Countrey might be relieved, and that if the House would be so obstinate, it must lie at their door ; That he could not answer for betraying the authority with which he is intrusted, should he put up that affront on any other terms, for her Majesty's authority was touched in it; that he would by no means infringe the least privi- ledge that the people could justly claim, and thereupon asked the said members whether they took what he required of them to be any breach or infraction upon any of those priviledges or whether it car- ried any hardship with it : to which they freely answered that they could not say it was a hardship, but yt the House did not think fitt to Order the Speaker to do more than what he of himself was will- ing to. The Govr. told them further he would consider their mes- sage and send them an answer. And the said message being taken into Consideration, it was Ordered, That notwithstanding the seve- ral long written messages sent from this Board to the House, they were not only fully acquainted with the objections made to their Bill, but also the reasons for those objections had often been render- ed at large, Yet once more a full and positive answer to the House should be drawn up and sent to them, which the Secry. was ordered to prepare out of what had been already agreed upon at this Board, and that the whole case should be clearly stated to them, and in the Close, the House should be earnestly press'd to Discharge their Duty to the Countrey, otherwise the Govr. would be obliged without fur-
323
PROVINCIAL COUNCIL.
ther delay to open the way to Justice without them & Establish the Courts by an Ordinance, & then adjourned.
At a Council held at Philadia, ye 15th of febry., 1706-7.
PRESENT :
The Honble JOHN EVANS, Esqr., Lieut. Govr.
Edward Shippen,
William Trent,
Saml. Carpenter,
Thomas Story, S Esq'rs. Richard Hill, Esq'rs.
James Logan.
The answer ordered to be prepared to be sent to the Assembly was laid before the Board, and after some debates was agreed to, in these words, viz : GENTLEMEN :
You have now given me, and the rest of the world, very great reason to believe that your concern for the Common good is not so real as has been pretended, since you prefer an obstinate humour in Defence of an irregular & affrontive behaviour to all other considera- tions relating to the Publick ; and Especially after the terms of satis- faction were made so easy, that there was no more required, than that you would Order the person Offending to acknowledge his Error where he had committed it. But notwithstanding, such proceedings might with good reason Discourage me from treating with you any further, I shall yet make all those resentments that your conduct might Justly raise so far to yield to my Earnest desire of advancing the Interest of the Publick, That I shall once more give my Result upon the Bill, and propose to you the Terms on which it may be Enacted ; But shall first observe that your particular manner of Judging of all objections made to what you Offer, very clearly Evinces how great an authority you bestow on your own opinions. You have frequently very Peremptorily put the Question, and asked wherein you Crave any thing that is repugnant to law or Reason, in which you seem to forget that tho' the Assembly has a Concurrent power in Legislation, & Law cannot be Enacted without them, Yet in all Govmts. the Govrs. part being at least equal, according to your own notion he must have an equal Liberty in proposing, accepting or refusing, and therefore is no further accountable to the Assembly for his reasons in rejecting any proposal that is made to him, than they generally show themselves after a matter is thrown out of the House by a Plurality of voices. If by saying what you ask is not contrary to Law, you mean there is no law against it, the same may be pleaded for a thou- sand Extravangancies against which the Law has made no provision. But to determine whether it be repugant to reason, or not requires some other Tribunal to ascertain what is reason, for however high you may rate your Opinions, it would be much too arrogating in you to Erect a standard to Judge of the reasons of others, who have an equal freedom of Sentiments and Opinions, I have often given you my reasons, tho' I'm not obliged to render any, why I cannot assent to your Bill as you have proposed it, wch are sufficient with me, and
324
MINUTES OF THE
notwithstanding any thing I have heard are likely to continue so, and I shall here sum them up once more.
I cannot agree, that when a Judge is once appointed it shall be out of the Govrs. power to remove him, but upon an official misbeha- viour which requires a Process at Law, and yet the Assembly shall have it in their power to lay him aside when they please, only by addressing the Govr., and without any Trial or Conviction ; for this your Bill directly and positively provides, whatever evasions have been used to Colour it now, that the Judges and Justices shall of themselves have the power to appoint or displace such considerable officers as ye Clerks at their own will and pleasure. To offer my reasons for this might be justly accounted superfluous, they are of themselves so obvious; for as to the Judges, as we are circumstanced, it differs very little from granting away the whole power of appoint- ing them at first. There is no Salary Established with the Bill, as 'tis in England, for that is to be still precarious and Dependent of the Assembly ; then Altho' the Govr. may appoint whom he pleases, they can as often displace him without rendering a reason ; besides that there is no pay for him till they think fitt to grant it, and when a person is found that suits a certain humour, however contumacious he may behave himself to the Govmt., for which there is no proba- bility of his being removed by the House as matters now go, The Govr. is to have no manner of Power over him or check upon his behaviour; he may proceed to the greatest insolencys and plead Privilege or Law for it, and perhaps make a sufficient number of the Representatives who may be unacquainted with both, believe that he is really in the right, and then he stands secure. I assure you Gentlemen, since it is now in my power to prevent this in a Judge, I shall take care that in my time it shall never be so. You have pleaded a Statute of England for the President, but have in the lat- ter part most unjustly perverted both the words & sense of the clause, for the Parliament never enacted, that a king shall turn a Judge out upon their address, but that it might be Lawful for him so to do, which without such a clause, it would not have been but upon Misbehaviour. The first part which makes the Tenour of their Commissions to be Dum se bene gesserint, were our circumstances the same in ye point with the Judges of England, might the more easily be granted here ; they have great plenty of able men to supply those places, out of whom they can make such a choice as needs not to be mended, and then they have a certain ffixt sallary allowedt them, independent both of the Crown and People, But here we mus. accept of such as we have and mend the choice as better shall offer If you, however, will find a person altogether fitly qualified for the office of Chief Justice that I can approve of, and will grant him a sufficient Sallary, as independent as the Judges have theirs in Eng- land, I shall not scruple to grant him the Office to hold upon good behaviour, nor shall I oppose your makeing it as Lawful for me to turn him out upon your address, as that act of Parliament makes it in England, So yt you see I am willing to grant even the whole that is contained in the very President you plead, Provided you will come
325
PROVINCIAL COUNCIL.
up to the same on your side, but I have some further reasons why I think it very improper for me to assent to that part of the Bill as you have proposed it, for the Govrs. of her Majesty's Colonies abroad being principally answerable to the ministry at home, for ye manage- ment of affairs in their Respective Govmts. would be found extreamly deficient in their Power, were they uncapable of removing any person out of Office, whose male feasance might give the ministry occasion to Command him to be so removed, wch in those parts sometimes happens, & therefore provision should be made accord- ingly.
Secondly. There is such a Train laid in the said Bill, that when once the Assembly, (which while some particulars have had a sway in it, has too frequently taken ye opportunity of raising and improv- ing a misunderstanding with the Govmt., has by their power of re- moving and withholding a Salary, till they are pleased to procure a person according to their own mind to fill the office of chief justice. The Sheriff being in the choice of the people, and the clerks in the Justices, The whole power and proceedings of the Court will not only be absolutely independent of the Govmt., but in all probability be levell'd as far as Possibly in direct opposition to it ; Especially since the present Speaker, who being the only person in that House professing the Law has been the Chief Compiler of that Bill, has presumptuously taken upon him to write to some private men in England, of whom the greatest part are said to be known opposers of the Proprietr. and his Interest, to send over some fit person hither to be our Chief Justice, proposing the Encouragement of some hun- dred per annum, and further objecting against that Worthy Gentle- man, as well as able Lawyer Judge Mompesson, as unfitt, because in the Interest of the Proprietr. ye Chief Govr. of the Place.
My third reason is you have told me that a certain Charter, pre- pared at the Proprietrs. Departure should have been executed, which Charter I find upon enquiry to have been a project of the same Gen- tlemans to Incorporate this Province, and take very near the whole power, both in matters of property and Govmt., out of the hands of the Proptietr. and Govr. and lodge it in the People, Leaving the Govmt. very little besides the Title, with the power only of appoint- ing Judges of Life and Death, and a very few other small matters, by which it plainly appears that the aim is to reverse the method of Govmt. according to our English Constitution, and Establish one more nearly resembling a republick in its stead ; To any part of which should I ever agree, I should think myself a betrayer of Her Majesty's Rights, and am Resolved, while I am in the administration, not to diminish them in any one particular, but leave them full as extensive here as I found 'em.
Many of my reasons for the several following objections de- pending upon what I have given, I shall be shorter in them. I cannot agree that the fines and forfeitures shall be granted away from the Proprietor or Govr., because it is to give away a profitt and Right for nothing, & such an one as cannot be spared, ffor the Govmt. here has not one perquisite belong'g. to it besides 'em, and
326
MINUTES OF THE
what arises from Licenses, in which also I shall not agree to any other alteration than what is mentioned in my message of ye 24th of Decembr. last.
I cannot agree to Enlarge the Power of the Corporation, their Charter being the Proprietrs. Grant, and of such he ought himself to be Judge, for I am Credibly informed that after Publication of that Charter the Powers of it were extended much beyond what was understood at the Council Board, to be designed by it. I must therefore be the more cautious of adding to that power and abridging the Countrey of theirs, and must further take notice that the Bill, tho' covertly & implicitly, does still Extend their Powers to all civil Cases ; which as 'tis Couched under such terms as do not obviously at first appcar, Yet effectually grant that power, is therefore the more Dishonourable, further I cannot think it reasonable but that writts of Certiorari should be granted as fully here as in England.
Nor that a man should be obliged to sue oftener than once for one debt, nor that such ffees should be establisht as will not afford suffi- cient encouragemt. to capable persons to accept of the Respective offices, which some of those proposed in the Bill will by no means do; Yet I am very desirous that the fees should be regulated and ascertained by a Law upon such Terms as may be reasonable.
Need help finding more records? Try our genealogical records directory which has more than 1 million sources to help you more easily locate the available records.