USA > Pennsylvania > Colonial records of Pennsylvania, Vol. II > Part 36
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You are further told in my message of the 24th of December, that some few other objections would arise from matters relating chiefly to the Courts themselves, which are these that follow :
The Seal of the Provincial Court ought to be the same that has been always used, (vizt :) the Lesser Seal of the Province.
The time for sitting of the Provincial Courts ought not to be so expressly Limited as that upon any Extraordinary business, they shall not have Power to take necessary time to finish it.
Judgments ought not to be given at the intermediate meeting of the Justices between the times of the Quarterly Courts, Writts of Error not being allowed but in open Court, destroys in great measure the benefit intended by them ; Attorneys must not be made so inde- pendent as by the Bill ; An action of false Imprisonment agst. the Sherif for arresting a freeholder is too severe, and is unreasonable, for we must obey the Writt Directed to him, and to plead an abate- ment may be sufficient.
The whole Business of Bankrupts should be brought into a par- ticular act, and be more maturely considered, for 'tis of too great weight to be enacted thus in Gross.
Writts of Enquiry Enquired of in open Courts will retard the busi- ness of the Courts, and the Inconveniency will over ballance the ad- vantage proposed. If it be apprehended that this method will save Charges, It's said that the whole force of the Jury will be no greater out of Court as is usual then as the bill proposes it. The method of Real Lease & Ouster in ejectments cannot be allowed of ; The Law of England is pleaded for our Standard in other Respects, and why we should avoid that to throw the people into much greater trouble and danger is unaccountable.
In the Close an addition must be made to Revive all process that
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have been discontinued as well by the falling of the Courts as the Queens Repeal, I must further add what has been twice mentioned before, that it is very inconvenient in many respects for the Justices to sign all Writts, if they were issued of Course out of the office under the County Seal, it would much more answer the end. In the Orphans' Court the whole Power of that Court within the City can't be Granted to the City Magistrates, but there may be one Court ap- pointed out of both the County and City to serve for both.
There must be a Restriction upon the Power of the Court in Di- recting the Education of Orphans in matters Religious. All Bonds & Inventories of this kind should be Lodged in one office, and since that of the Registers is appointed by Law, it is the most proper place for them.
These Gentlemen, are my objections to that Bill, which when re- moved, I shall be ready to assent to it, notwithstanding I cannot alto- gether approve of the system, But not before ; and of all those heads there is not one without which the Bill will not as effectually answer the End proposed by it, if there be nothing further than a Regular Establishmt. of Courts intended. And now as I have agreed to every thing thats necessary to this end, so if you will not join with me in it, but insist upon such points as I can by no means grant, & make those the Terms of your Concurrencee, it will Lye wholly at your own door that they are not established by a Law.
The Countrey loudly calls for Justice, and I on my part earnestly press that it may be granted. Should I tack to the Bill or insert in- to the Body of it any Exorbitant grants to myself which you could not in the discharge of your trust think fitt to assent to, and should refuse to agree to an Establishment of Courts upon any other terms, the People might have just cause to complain; but while I crave nothing of you and am willing to agree in all points that are neces- sary to the Reviving of these Courts and opening the Currt. of Jus- tice again, and yet you decline to concur in it unless I betray my trust, and agree to unreasonable Grants to you, which are not yours of Right, shows as if you preferr'd something else than the Real benefit and advantage of the people, whose interest is so deeply Con- . cerned in and suffer by this Long delay. If their Exigencies and heavy Oppressions can so far prevail with you a's to discharge your Duty to them, in this point, and concur in Enacting the Bill as I have proposed it, it shall without delay be past into a Law, if not I will lose no further time, (for I am resolved the Courts shall be held at the time at which they ought next of Course to sitt,) but proceed to use the power granted me by the Kings Letters Patent to ye Proprietr., By which I am assured I have as full authority to establish them without you, as you have to Concur with me in enacting a Law for 'em. And after I am obliged to this, whoever shall dispute that power or endeavour to invalidate the Establishmt. as they will justly Deserve to be reputed Enemies to the Peace, safety & Welfare of the Govmt., and opposers of her Majesty's authority, so they shall not fail of being Treated accordingly.
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At a Council held at Philadia. ye 20th of febry., 1706-1707.
PRESENT :
The Honble. JOHN EVANS, Esqr., Lieut. Govr.
Edward Shippen,
James Logan,
Samuel Carpenter, Esqr's. Richard Hill,
Thomas Story.
Joseph Pidgeon. $
Esqr's.
A long Remonstrance drawn up by the Assembly to the Govr. dated ye 19th Instant, was read in these words :
The Remonstrance of the Assembly, Delivered to the Govr. ye nineteenth day of ye month called February, 1706-7.
We, the Representatives of all the freemen of the Province of Pennsylvania, in Assembly mett, having with all possible despatch and application prepared a Bill for Establishing Courts of Judicature, presented the same to the Govr. about ye 17 of 9br. last, and after we had spent much time in debating & answering what was advanced against the said Bill. At length the Govr. seemed to reduce his main objections to these following particulars, vizt :
1. In the first place, he objects against the Judges holding their offices during good behaviour, and against their being displaced at the request of the assembly, and against ye placing & displacing of the Clerks & Prothonotarys here as in England.
2. He objects agst. appropriating of the fines & forfeitures to ye Queen, and agst. the Court of Equity to be in every County.
3. He objects against that part of the Bill which Impowers the Justices here to grant Licenses, as Justices of the Peace do in Eng- land.
To which objections, as well as some other things wch the Govr. dislikes in the Bill, we gave in our answer on the 28th day of De- cember last, and Earnestly Desired him to Consider therof in the time of our adjournment.
That on the 4th Instant we mett again, and being sent for to the Govr. we attended him accordingly, where upon he was pleased to read a long Speech to us, Containing much harshness & severe reflec- tions upon our proceedings, & tho' we desire a Copy thereof, yet cannot hitherto obtain it.
That on the 5th Instant, the Govr. desire a Conference with us about the Bill, which are agreed to, desiring that the subject matter thereof might be first settled. But in as much as time would not then admitt to stand long upon the Preliminaries, and that nothing on our part should retard the passing of the Bill, we went to the Conference on the 6th Instant, and Entred immediately upon the debate ; But our Speaker having at our Request undertaken to argue the Legall part of the said Bill, Being tired with standing up so often to answer the Govr. & his Council, at last kept his seat, which so far displeased the Govr. that he required him to stand up. But ye Speaker reported, that Considering he was at a free Conference upon matters of Legislation, wherein the Kings Letters Patent makes the Concurrence of the Govr. and Representatives equally necessary, looking upon what the Govr. required to be inconsistent with the
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freedom allowed on such occasions, thought fitt to break up the Con- ference at yt time, and return to this House for direction concerning the further procedure in the said Conference.
That before the House adjourned a message was sent to the Govr. to this effect, vizt : That we were sorry the Conference should be stopt upon any occasion whatsoever, But for as much as we could not remember, That former Govrs. had taken exceptions to the Speakers keeping his seat at a free Conference, but rather press'd him thereunto, after he had paid his Civil Regards to the Govr., Therefore the House desired the Govr. would be pleased to continue the same Practices in the Conferences of this Assembly, or otherwise that he would appoint a Committee for his Council, or such other persons as he shall think fitt, to meet a Committee of the Assembly, by whom ye present Conference might be managed.
That in answer to this message, the Govr. was pleased to resent the Speakers Conduct at the Conference to be a misbehavior, In- sisting that as he is in this Govmt. the Queens Representative, he thinks himself obliged to assert her Majesty's authority. In answer to which message, we assured the Govr. that our Speaker had given the House satisfaction ; That his keeping his seat whilst speaking at the latter part of the Conference was meerly for his Ease, and not with any Design to affront the Govr., and that he returned to the House in Order to take their Directions in the future managemt. of the Conference, which we conceive was more prudent than that ye misunderstanding like to be occasioned, thereby should have been aggravated to such a height as to have terminated in unseemly Lan- guage Therefore we proposed to the Govr., That to avoid ye like misunderstanding for the future, and that more time be not Lost, But that the Conference may be carried on, And the Preliminaries (That should have been at first agreed upon,) be forthwith settled and adjusted, which we desired to be by a committee of this House, and an Equal number of the Govrs. Council or others, as he should think fitt to appoint, And this we insisted upon, To the end only that we might speak our minds with more freedom, and that we were informed that is not the Practice in other Provinces, that the Govr. should be present at free Conferences.
That on the 10th Instant We reced. another message from the Govr., wherein he multiplies his Charges against us, insisting upon his superiority over us, & the People we represent, Letting us know how he Expected We should behave ourselves at the Conference, which he was willing to Continue upon the terms he there proposed, & be at himself; in answer to which message, we acquainted the Govr. that by his being Commissionated by the Proprietary & Receiv- ing the Royall approbation, with other necessary qualifications re- quired by Law, He may be deemed the Queens Representative, & Justly demand superiority over the People of this Province, and in that state the Representatives of the people are to address him & to sue for justice agst. evil ministers, and in all matters wherein the Govr., by virtue of his Lieutenancy, has power of Judicature. We hold it our duty so far as our Circumstances can admitt to Comply
14*
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with what he may reasonably direct, But in matters meerly Legis- lative, we thought (without derogation to the Govrs. honour, ) that the Royal Charter gives 'm a Concurrent power with him, so after we are free agents to propose what we think fitt to pass into Laws, Which the Govr. may reject, and so may we by the same authority dissent from what the Govr. proposes Legislatively, and when it happens that the Govr. & the House of Representatives differ in opinion in a point relating to Legislation, Its proper that free Con- ference may be had, where every one may have freedom of Speech & Gesture, without being under the Check of a Chairman, and as such Conferences are necessary, so the method of them ought to be settled. But that the Bill of Courts, which has been with so much care and pains prepared by 'm, and 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 manager, on our part, as shall give him no just Occasion of Offence; And as to what happen'd at the last Conference, we desire the Govr. may be satisfied as we are, That our Speaker's keeping his seat when he spoke at the latter part of the Conference, was not with design to affront the Govr., whereof we Intreat the Govr to pass it by, and go on with the Conference, which so highly concerns the Publick good. And that nothing Exprest by us in relation to that misunderstanding should be deemed or Construed to Extend to the defence of any disrespectful behaviour, which we assure him neither was nor is the Intent of ye House.
That on the 11th instant we recd. another message from the Govr. wherein he Insists that in all matters wherein the real priviledges of the House are not infringed, a due deferance should 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 beintended, was at length affrontive to that authority, & accord- ingly the Govr. expects he shall acknowledge it by order of the House, And that they will take especial care that the like be avoided for the future upon which the Govr. will be very ready without delay, to proceed to the Conference. And to this, the direct Answer of the House is immediately required.
Whereupon the Speaker desired leave to Exhibit his further An- swer for his own Vindication in this matter, which being granted, he brought the same to the House, and is as follows, viz :
I am heartily sorry that what happen'd at the Conference should create this House so much trouble; You are my witnesses that I paid my regards to the Govr., and stood up when I spoke till it was Concluded we could not proceed any further upon the first point till the statute could be produced, and seeing it was too late to send for it, and thinking our stay at the Conference would be of little service without it, I put up my papers intending to return to the House ; but some of the Govrs. Council pressing to go on with the next point be- fore the first was brought to a Close, I thought it improper to say much in answer to them on that head, and being tired in rising so
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often as I did before, to answer so may opponents, I kept my seat & spoke something in answer to those Counsellours whilst sitting, wch the Govr. was pleased to resent, and required me to stand up; But considering that we came there in Expectation of a free Conference, (as I informed the House before) tho' I was willing, (as I told the Govr.) to pay all Civil respects unto him, Yet in this case I thought myself under the direction of this House, and not to be commanded by any other upon this free Conference ; I shall readily acknowledge that standing up at Conferences as well as in other Councils, is a decency even amongst equals, and yet I dont conceive that it was ever enjoyed but to the end that the persons standing may be heard and the rest may not interrupt, so that I do declare that it was and is my positive Judgmt., that if the Govr. thinks ffitt to be pre- sent at such Conferences, and there Exerts his Commands upon any manager or other member of this House, such Commands are incon- sistent with the freedom of such Conferences and affrontive to this House ; And if I am mistaken, I desire the House to Construe it as the Error of my Judgmt. and not of my mind. And I can solemn- ly declare that my refusing to Comply with the Govrs. humour, (for so I Conceive it to be when he Exerts his Commds. where he should not) was not with a design to affront him, but to shew my dissent to that which I thought had a Tendency to frustrate ye freedom of Conferences, not knowing if I comply'd with this, whether the next# Command would not more highly effect the Rights and Priviledges of this House, which I am conscientiously concern'd to assert and maintain every where, and if in this Case I have done any thing un- becoming the Station you put me in, I shall freely submit to your Censure. That in answer to the Govrs. message we acquainted him that tho' we hoped our last answer would have given full satisfaction, in relation to ye present misunderstanding Occasioned at the late Conference, Yet finding by his message just now sent to the House, he expects some further acknowledgment ; The House has thought fitt to Signifie that the Speaker having submitted himself (in rela- tion to his deportment at the 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 or orders were enjoyned him or the other managers in relation to modes or Gestures of sitting or standing whilst 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 forasmuch 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, and had we in the least fore- seen the Consequence, 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 Judgmt. of the House and satis- fied us that it was not with design to affront the Govr., we hope the Govr. will consider and accept of our proceedings and acknowledg-
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ments 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 this House that the matters now under consideration, however high the Govr. may strain them, are not of sufficient weight to retard or obstruct the publick good ; That on the 13th instant we reced. another message from the Govr. wherein he requires that our Speaker shall with due submission in his own behalf, and by Order of the House, acknowledge the irregu- larity of what is past. In answer to this message, we acquainted the Govr. that the Speaker is willing at the Request of the House, and for dispatch of business in hand, to make the Like acknow- ledgmt. 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.
Whereunto the Govr. reply'd, That ye terms he offered ye House this morning for the Conference this afternoon is the very least that can amount to a satisfaction which he did expect as there re- quired without the least Evasion ; Whereupon two of us, by Order of the House went to the Govr. and acquainted him that our last message was the ultimate Resolve of the House without Evasion, and further they cannot go upon that head. Therefore if the Govr. would Continue the Conference, the House would attend him at the time and Place appointed this afternoon, But having had no answer to our last message, we sent again in the afternoon to ac- quaint the Govr. that since he does not think fitt to accept of the satisfaction proposed in the answer to his Written message this day, we again desire him Either to Confer with a Committee of this House, or give us his Result upon the Bill of Courts, shewing 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- curr with the Govr. in any Reasonable amendment, without further Conference.
The Govrs. answer was returned, That he was sorry the House could not answer his proposals, adding that he could not nor durst put it up on any other terms, seeing it was an affront to the Queen, for he did assure us he did not desire to infringe the Liberty of the meanest member of the House.
Whereupon, the House taking a Review of all the Govrs. messages, and Considering how far we have gone to give him satisfaction in what he can justly demand, & finding yt he continues to render us as Contemners of the Queens authority, or at least supporters of such as he suggests have done so, which if further insisted on, we shall find it indispensably necessary to appeal to our Gracious sovereign the Queen, for Justice in this matter, and that in the mean time we may clear ourselves of these unjust Imputations & give the people we represent (as near as we can) the true state of the Case and differ- ence between the Govr. and us.
We held it our duty to make the foregoing narrative of our pro- ceedings, So that we conceive nothing now remains but to consider what authority is vested in the Govr., and the People in Legislative
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matters, & how farr the Govr. can exert his Commands upon the the Peoples Representatives while they attend free Conferences, and whether his resentmts. in this Case are proportionable to the Occa- sion given.
We are clearly of opinion, & look upon it our duty to assert, that the Royal Charter gives us a Concurrent Authority with ye Govr. to act in Legislation, (which is the Equallity we insist upon,) and that he ought not to defeat us in that authority, or render it ineffectual to the Peoples Representatives, which in our opinion will unavoidably be the Consequence of his presiding and Commanding in our free Conferences.
That the Royall Grant has constituted but two states or Branches in the Legislative authority of this Province, and renders all the Laws that pass by their Concurrence, but meerly Probationary, & subject to the disallowance of the Queen, where the state of absolute superiority & superintendency is left as it ought to be.
We know that the present Lieutenant Govr. has a Commission from the Proprietor, dignified with the Queens Royal approbation, wch with the other Qualifications required by Law, may sufficiently intitle him to be the Queens Representative. But if that should give him a greater superiority over us, in matters of Legislation, than the Lords has over the Commons, Then we think it improper for the Govr. to preside in any free Conference, Unless it could be proved, That the Lords Justices did so in such Conferences with the Commons.
And as the Govr. represents the Queen, so do the magistrates by him Constituted and qualified according to Law ; and Offences and Contempts done to them in the Execution of their offices, may be reputed as done to the Queens Representatives ; But it does not fol- low, that either the Govr. as chief magistrate, or the Justices in their Stations, can Demand immediate satisfaction for an affront or con- tempt done out of the Court, or place where they are sitting Judicially, and yet the Law will suffer no contempt or offence done to them or inferiour officers to pass with impunity, But as it provides against all offences, so it keeps every Jurisdiction within its proper bounds.
It is no question at all with us but that we should treat the Govr. with all the Decency & Regard due to the Queens Representatives. And we are humbly of opinion that the Queens authority, which we as legislators are vested within, (in as near Relation to the Crown as any can pretend to be with this Govmt.) ought to be treated with Regards suitable to the station wherein the Royal Charter has placed us, and tho' we are mean men & Represent a poor Colony, yet as we are the immediate grantees of one branch of the Legislative autho- rity of this Province,) which we would leave to our Posterity as free as it was granted,) We ought to have been, & do expect to be more Civilly Treated by him that claims the other branch of the same au- thority, & under the same Royal Grant, and has his support from us and the People we Represent.
If we had been to attend the Govr. by way of address, or upon such Impeachments wherein he has a Judicial power, and had in any
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wise transgressed the rules of Decency, there would have been better grounds for his resentments ; But we see no Colour of Justice, nor can we suppose the Govr. can find a Precedent from the English Constitution, to make such Demands as he does upon so small a Punctilio.
Our great Zeal and sincere Endeavours for the Regular Establish- ment of the Courts of Judicature, has caused us to consent to enter upon this Conference before the Preliminaries were adjusted, and tho' we were willing to meet the Govr., and Confer with him or such as he should think fitt to appoint as managers on his part, yet we never intended to comply with any thing which might be made a president for the Govr, to act as a Chair-man, or exert his commands upon the Assembly, whilst they attended such Conferences, much less to prescribe what censures the managers on our part must come under, in case they should Committan Error in that undertaking ; therefore, we Conceive that the Govrs. Demands on that account are very unreasonable, and have an apparent tendency to defeat our right of Censuring our own managers, when they transgress the rules of decency, or go beyond their Instructions in those matters committed to their Charge by Order of their House.
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