USA > Pennsylvania > Colonial records of Pennsylvania, Vol. II > Part 37
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It is very well known to the Govr. that the Speaker of the House of Commons, when he is presented to the Queen, makes a protesta- tion, Consisting of three parts; The one is about freedom of Speech, another about freedom of access to her Royal person, and the other is that in any thing he should deliver in the name of the Commons, (if he shall commit an Error,) no fault shall be arrected to the Com- mons, and that he may resort again to the Commons for a declara- tion of their true intent, and his Error may be pardoned ; And from that Example (tho' in a remote and far meaner degree) our Speaker, at the beginning of this sessions, made his request for freedom of speech and allowance of all our Just rights & Privileges, and for free access to the Govr., and that no misconstruction should be put on our proceedings, (as used words to that effect,) which the Govr. then readily Granted ; But now, because our Speaker did not stand up at the Govrs. Command, when in a free Conference, (Though he spoke nothing that was undecent,) And tho' he assured the House, and they the Govr., that what happen'd at the Conference was not with design to offend or affront him, Yet that which the Govr. at first call'd an Error of the Speaker, he now charges ye whole house with as an offence against the Honour and Dignity of the Queen, And would render our messages on that account nearly to concern her Majesty's authority in Govmt. and much more to the same purpose, which we declare to be a meer straine & a most unjust Imputation, & seems to be a design to render us and the People we represent, obnoxious to the Queen's displeasure, and unworthy of her Royal favours and Indulgence, which we value above all other Pri- vileges.
We find the Govrs. main objections to the Bill of Courts are Levelled against such parts of it as are grounded upon the Common & Statute Laws of England, & we conceive nothing can be advance
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to support such objections, but what will Impeach the wisdom or Reasonableness of the English Constitution, or render the Queen's subjects here unworthy of their native Rights, and as for the appro- priating the fines and forfeitures to the Queen, we formerly acquainted the Govr. of our passiveness in that point, & desire him to propose a proper method, and how our Bill may stand clear of the objections of the Lords of Trade, that prove so fatal to some of our Laws, which appointed fines and forfeitures to give to the Proprietarie and Govr., But we have had no direct answer to our request in that be- half, so that after the expence of so much money and loss of three months time, Since the Bill of Courts has Lay'n before the Govr., we despair of having it passed, notwithstanding all our endeavours to obtain the same, hoping it would have put an end to some of the ag- grievances which the People of this Province have for several years groaned under, & which we forbore hitherto Publickly to remon- strate, choosing rather to provide remedies for things that are, and have been amiss, than Complain of them.
The Govr. may remember that what was discoursed at the Confer- ence had respect chiefly to the appointing and removeing of Judges, and we are content that part of the Bill shall be omitted, and pro- vision made in a Bill by itself, as some of the Council yn proposed.
Signed by Order of the House.
DAV'D. LLOYD, Speaker.
Which being considered, it was judged altogether unworthy of an answer, because the Publication of the Several messages and papers at length would be an effectual Confutation.
Two members, (William Hudson and John Swift,) in a message from the House, acquainted the Govr. that the House had taken the Govrs. last message into consideration, but cannot be sensible that their Bill of Courts does, according to what the Govr. charges the House with, covertly & implicity extend the powers of the Corpora- tion in their Courts to all civil causes, and therefore desire the Govr. will be pleased to inform the House what part of the Bill he conceives to have that tendency, for that no such thing was intended by the House in any part of their Bill.
Upon which they were told they should have an answer in a mes- sage from the Board forthwith, and accordingly ye following answer was drawn.
The Courts of Common Pleas, according to the bill, are to be held by the same Justices that holds the Courts of Quarter Sessions, and their Powers in Civil Cases are limited by the Bill to the same Bounds they have in the Quarter Sessions ; therefore, since there can be no courts of Pleas held but by the Justices of the Sessions, and the Justices appointed by the Govr. for the County of Philadel- phia, having no power in the City, can therefore hold no pleas there, so that there can be no such Court appointed by the Govr. for the City, But a Court of Pleas for the city is acknowledged by the Bill, & there must be one, tho' it is out of the Govrs. Power to appoint it. The Bill further provides, that no Justice of the Court of Qur. ses- sions, or any other Justices, shall intermeddle with or Exercise Ju-
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risdiction, in any cause or thing whatsoever arising within the Bounds of the City, which by Charter or otherwise may be inquired of in the City Courts, &c.
The City magistrates have, by their Charter, claimed a right to sitt in the Courts of Common Pleas, (and as I am informed have actually sat in them,) therefore seeing there must be no Courts of Pleas held but by the Justices of the Quarter Sessions, and the Jus- tices of the County can hold no pleas but within the same Limits where they have Power in the Quar. Sessions, and there must be a Court of Pleas within the City, and the City magistrates do claim that Power by their Charter, besides that the word Otherwise leaves room for all manner of Implication of Power to strengthen that Claim, either from the present Bill or precedents, therefore it will follow, that the Court of Common Pleas for the City, must be held by the magistrates of the City that hold ye Courts of Quarter sessions within the same, and no others. Ordered, that Edward Shippen & Samuel Carpenter carry the said message.
The next Term for the Sitting of Courts being now very near at hand, and there being but very little room left by the Assembly for the Govr. and Council, to hope that the House will ever concur in enacting a Law for Regulating the Courts of Judicature, unless they can have their own demands in whatever they think fitt to insist on, and it being considered that the Countrey very deeply suffers for want of ye administration of Justice for so long a time, which being in the Govrs. own Power to restore to them without the Assembly, he will be inexcusable if he delays it another whole term, which will necessary follow, if the Courts be not very speedily Erected ; 'Tis therefore ordered that an ordinance for that purpose be forth- with drawn up by the Practisers of the Law, agreeing as far as may be with the bill prepared by the House, and also a proclamation be prepared by the Secretary to inforce the said Ordinance, and then adjourned.
At a Council Held at Philadelphia, ye 21st of febry., 1706-7. PRESENT :
The Honble. JOHN EVANS, Esqr., Lieut. Govr.
Edward Shippen, James Logan,
Samuel Carpenter, Esq'rs, Joseph Pidgeon, Thomas Story,
Esq'rs.
The Secry. presented to the Board a Draught of a Proclamation ordered yesterday, which being considered and debated by Para- graphs, was approved of, and ordered to be Ingrossed, Sealed and Printed forthwith.
Ordered also, that a Bill for Continuing Process be prepared to be sent to the Assembly.
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At a Council held at Philadelphia, ye 22d febry., 1706-7. PRESENT :
The Honble. JOHN EVANS, Esqr., Lieut. Govr.
Edwd. Shippen,
James Logan,
Saml. Carpenter, Esq'rs. Richd Hill.
Thos. Story, Joseph Pidgeon.
Esq'rs.
The Proclamation agreed upon yesterday being Ingrossed, was signed by the Govr., together with a Warrt. to Seal the same.
The Bill for Continuing Process, ordered yesterday to be prepared, was presented to the Board by Robt. Assheton, and after some small amendments being agreed to, was ordered to be sent to the House wth the following message, in writing, vizt.
'Tis now a week since my last message, giving you the terms on wch the Bill for Establishing of Courts might be past was prepared, and intended for you, and had then been Deliver'd had not yor ad- journmt. prevented. I have waited your answer to the utmost length of time that I can now stay, and therefore as I have often told you, being resolved that the Courts shall not be deferred beyond our next ensuing terms, of Course I am obliged to Establish them, by virtue of the Powers derived to me by the Kings Letters Patents, and have choose to doe it generally by such Clauses of your own bill as are more immediately necessary to the end ; But as the Coun- trey will deeply suffer, should not all former process be revived, I herewith send you a short Bill only for that purpose, wch as it is a point that most nearly concerns the Interest of the Countrey that you represent, your Immediate concurrence with the main scope of it is expected, that it may be published on Tuesday next at Chester.
It was alledged that the last Assembly had generally been of Opinion that the passing of any one act put an end to that session wherein it is past, and therefore that the same opinion may raise a scruple in the present House, & be an objection with them against passing any one act before all the rest that they desire to be past at this session.
All which notwithstanding appears to be a great mistake, not only from the express opinion of the Ld. Cook upon this head, but also from the Common Practice of late of the Parliament of Eng- land.
It is therefore Ordered the Assembly be informed hereof accord- ingly by those who carry the above written message.
Ordered that Richard Hill and James Logan do carry the said messages.
Ordered that the Ordinance as prepared be Ingrossed & sealed.
At a Council held at Philadelphia, ye 24th febry., 1706-7.
PRESENT :
The Honble JOHN EVANS, Esqr., Lieut. Govr.
Edwd. Shippen,
James Logan,
Saml. Carpenter,
Esq'rs. Willm. Trent,
Esq'rs.
Thos. Story,
Richd. Hill.
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An answer from the Assembly to the Govrs. message of the 15th Instant having been deliver'd to the Govr. on the 22d, after the rising of the Council, He Communicated the same to the board, & it was read in these words, vizt :
(Assemblies Answer, ye 22d febry.)
The Assemblies Answer to the Govrs. message of the 15th of febry., brought to this House on the 19th of the same month. May it please the Govr :
We find that the Influence of some Evil Counsel prevails still upon the Govr. to continue his resentments against this House, without any Just Grounds; Questioning the sincerity of our Con- cern for the Common Good, and most wrongfully insinuating, That we prefer an obstinate humour in defence of an irregular & affrontive behaviour to all other considerations relating to the Publick ; Whereas our proceedings may sufficiently Evince that we have Cen- sured what we conceived amiss, and offered the Govr. all the satis- faction we thought reasonable for us to give in that matter, saving our Rights and freedom in Conferences.
There is as little need of the next animadversion as was of the other, for we never questioned but that the Govr. may reject what we propose, as we may what he proposes Legislatively, without giving any reason ; But if either of us reject or propose any thing by way of amendment to a Bill, we ought to support it with Law or Reason, being the only standard or Rule by which we desire all differences between the Govr. and us may be determined.
We have great Cause to bless Providence that the English Consti- tution has sett up the said standard, and that through the Indulgence and favour of our Gracious Queen, we are put in a Capacity of shewing our desires and Endeavours of supporting that noble Stand- ard, Which the pernicious Counsels and arbitrary Designs of some do strike at, And what we do on that account is without arrogating to ourselves more than becomes English subjects, and such as oppose us therein, do but as it were gnaw a file, which will break their teeth 'ere they prevail agst it. As to the appointing & removeing of the Judges, we agreed before we recd. the Govrs. last message, that the Clause relating thereto shall be omitted & provision made in a bill by itself, but we are here obliged to clear our Selves of some misrep- resentations made of what we insisted on at the Conference about that point, and of what is charged upon us as perversion in the latter part of the said clause.
It was well known that we never pretended that the said Clause agreed in terms with the statute whch was our precedent, But when it was read to us in the House, We Considered and unanimously agreed to make it more positive & obliging them that is made in the statute; Because the two Houses of Parliament have the Queen (who Excells in honour and Justice) to apply to for removal of Evil Judges, But we have only our Fellow Subject, who hetherto has not given us that demonstration we could wish of his willingness to observe the Constitution of this Province, but rather to Elude them as in the case
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of the Sheriff of the County of Philadelphia, with some other Instan- ces which we think not proper here to Express.
If the Govr. be pleased to remember, Our Speaker Shew'd at ye Conference, That the method of Procedure against the Judges in Case of Official misbehaviour, might be after this manner, to wit, the Assembly the being general Inquisitors of this Province might Examine the same, and if they find the Charge to be true, Then that they transmit it to the Govr. with the proofs, & there demand Judgment, which the Govr. might give without any other process at Law for the removal of the party so charged, if he found the fact so proved required it.
As to the Judges Sallary it comes from the Exchequer in England as it may from a Publick fund here which we conceive the fines and forfeitures ought to be part of, and to suppose the Assembly will not make up the Rest to be a Competent support to a moderate man, or to insinuate (as ye message does) That the Assembly will displace a Good Judge and keep in a bad one, we take it to be a most unjust Reflection upon the Justice of this House, And ought not to be supposed of the Representatives of the People.
As we never proposed to appoint the Judges, so we leave it to the Govr. to find out such as may be fitt for so great a Trust, having only this to Recommend ; That they be men whose Conversation may be of good Example in that high Station, And not Justly Chargeable with vicious Practices or Corruption, But men fearing God & hating Covetousness.
As to the Clerks, We referr to our former answers on yt head, and shall only add that our Bill does not Impower the Justices to appoint or Displace them at their own will and pleasure, or otherwise than the statute in that case directs, and we conclude that it is safer for the Clerks to be tryed by a Court than by a Jury, how Ever the Wisdom of the Parliament of England ordained it so there, and for the same reason we insist it should be so here, hoping that the Govr. will concurr with us.
To bring these Officers under a Proper regulation rather than leave them beyond the Controle of the magistrates who may be greatly damnified by their unskilfulness or designs & yet left remediless unless Relieved by the method proposed in the Bill, pursuant to the said statute.
As to the first head of what the Govr. brings as his further rea- sons against the part of the Bill we do not know how farr the ministry at home Expects him to be answerable for the management of affairs in this Govmt., nor would we propose any thing that may render him deficient in his Powers, but would gladly have him do all things that may Render him and us acceptable to our superiours; and as to the Second, it serves only to cast an unjust reflection upon Assemblys ; But as to what is mentioned about a letter supposed to be written by the Speaker, as we never saw it, so we are not con- cerned with it.
And as to what is said Concerning the Charter prepared at the Govrs. departure, the Draughts man has assured us that no project
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nor Power is Comprized in that Charter, but what was the Propr's. direction, perused & Corrected by his Cousin Parmiter before it was Ingrossed and afterwards signed by himself, but whether the Propry. designed thereby to reverse the method of the Govmt. according to an English Constitution and Establish a Republick in its stead, or leave the People to Struggle with the Queens Govrs., which he then expected would be the Consequence of the Bill then moving in Parliament against Proprietary Govmts., the Draughts-man cannot tell, but he well remembers that the Proprietr. told him that he held himself obliged to what he could to Confirm his tennants in their lands and properties and give them all the Power he could, as he was Lord of the Signiory & much more to that effect.
As to the fines and forfeitures, the house have long waited for an Expedient how the Bill could stand Clear of the objections of the Board of trade, if we should not appropriate them to the Queen ; but having reced. no satisfaction in that point, we are Contented that the bill shall be wholly silent about the appropriating them.
As to the Licenses we still insist that they be granted as by the bill, and we shall settle the perquisites to the Govr. as we formerly proposed, by way of amendment to the Bill.
As to that of the Corporation, tho' we cannot Conceive our Bill Imply's any such thing as is objected, nor that the word (otherwise) can Extend as is alledged, yet to remove all pretence of occasion against the Word, we are willing it be omitted in the Bill, and in- stead thereof the Laws of this Province be inserted, and that where the blank is left for the time of the sitting of the Court of Pleas, it may be inserted after the words in Philadelphia, for the City and County of Philadelphia, which will we hope effectually remove all pretences of that kind.
As for Writts of Certiorari we answered formerly, That we agreed they should be granted as fully here as in England, and expected to hear wherein the bill is short of That. As for suing oftener than once for one Debt, if it be Intended that a man who sues and reco- vers, shall not have an other action or scire facias upon such Reco- very, we cannot agree to it, But if the objection be to the scire facias against the Bail taken after the Execution, we formerly shew'd the necessity of that, Because our Prison have no verge, & the Creditor better secured than at first.
As for Establishing officers fees the Cries of the Country Call for it, & if the fees proposed were too scanty, we acquainted the Govr. near two months ago that we would augmt. them. We Remember, the Govr. in a message of the 24th of Xbr., had a Reserve of some objections, which he now says are those mentioned in this message, we do not find them to be of yt Weight or Intricacy, But they might haye been made at first and settled long before this time, so that ye Govr. by ye Influence of some Evil .Councill, has given us and all others who will Impartially Consider it great Cause to Conclude, that his purposes for the Common good, and opening the Currt. of Justice, are turned to trifling delays.
As to the Seal of the Provincial Court, we are of opinion it ought
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to have an Impression suitable to the Style of the Writts which are to be sealed with it, and that it be kept by the Chief Justice, or such as he will answer for, and there will be a necessity that this and the lesser Seal be different and not lodged in one place, for in some Cases the one may be made use of to check the other.
We think it of absolute necessity that the sitting of the Provincial Courts should be hinted as formerly, but if that be not enough for Philadelphia County it may be Enlarged, but the other Counties to be as heretofore.
We are of opinion, that giving Judgment in the Intermediate Courts, as proposed by the Bill, will be found very necessary to pre- vent delays occasioned by Imparlances, Demurrs, &c., for which end only it was Intended.
We are willing to make the Writts of Error, allowable by any one of the Justices out of the Court as heretofore.
As to that Clause about attorneys, it was very indifferent to us if it be all left out of the Bill; But for as much as attornys do fre- quently practice in Courts, We thought it necessary they should come under Regulation, and not be suffered to plead without the Courts admittance.
We agree that to plead in abatement where the Sherif arrests a freeholder may be sufficient, So that the Court be Impowered to award damages upon such abatements.
As to that of Bankrupts, we do not see how we can amend it, But if the Govr. thinks it more proper to pass it in a bill by it self, we shall be satisfied, so as some such provision be made to prevent the Scandall which will fall upon ye Publick Justice of the Countrey for want of it.
As to that about Writts of Inquiry, we conceive it may be so Or- dered by the Justices as not to retard the business of the Court, at least not to render the Inconveniency so great as to Over ballance the proposed advantage, the Govr. is misinformed about the Charges, for divers of us know the difference to be so great as to Cause us to insist upon the method proposed in the Bill.
The Real Lease Entry & Auster is according to the Law of Eng- land, and the fictitious proceedings is a new practice, allowed only in Westminster Hall, But not in any Inferiour Court in England, as we are informed, & may be seen by several cases proved to us out of a Book Called the Law of Ejectments, page 38er, and we are of opinion that our Courts are as inferiour to Westminster Hall, as Corporation or other Courts having Conusance of such pleas are in England, and we are satisfied the Real Lease, as at Common Law, may be rendred more certain and of Less trouble and Danger to the subject here than the Late new practice, and if our Bill does not effectually answer that End we are ready to amend it.
As to the Reviving of the Pleas and process, if the Bill does not make full provision, we are willing that it be made most effectual in that point.
As to the signing of Writts, we still insist that the Original writts or process be signed by the Justices, as the Constant practice here
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has been, and that agrees with the Laws of this Province, which we formerly mentioned. But as for other writts, they are to issue of Course and are to be signed by the Prothonotary and pass under the Judical Seal of the County. As to the Court of Orphans, We agree that the Magistrates of the County of Philadelphia, be joined with those of the City, to hold those Courts as proposed by the Govr., & we conceive that the Bill gives no Power for the Court to direct the Education of Youth in matters of Religion, & if it bears any such Construction, We are willing to restrict it, & agree to mend the Bill accordingly, but as to the bonds and Inventories Relating only to Orphans, we think they are properly lodged as proposed by the Bill.
And now, having done with the objections, we would draw the whole matter to this narrow close, That since we are ready to con- curr with the Govr. in every thing that is necessary to the well be- ing & Regular Establishment of Courts, and Insist upon nothing but what we conceive to be our Indoubted Right, by grants or promises of the Govr. in Chief to demand, and in his Lieutenants power to grant and Enact, whether by the Bill now before him, or in distinct Bills, is matter of Indifferency to us, for we are willing to Exonerate our Bill of what can with any Colour of Reason be alledged to Clogg it. We have now pointed out those matters in the Bill, which are also of Indifferency to us, whether they pass or no, But as to ye Justices Licensing of Ordenaries being the proper means to prevent the debaucheries like to overrun this place, we cannot, without be- traying our trust, decline our Endeavours to obtain ; As also, that the officers fees be now Establish'd as well as the Courts, and that provision be made for the Removal of the Clerks as the Bill & the Statute in that Case direct (being what we think will effectually En- able the Govr. to answer the ministry at home, in Case of male fea- sance) such officers, which last particulars we do & must insist on as proper terms of our Concurrence; and if the Govr., notwithstanding all our Endeavours and Readiness to comply with him in reviving the Courts and Establish proper Jurisdictions, will not agree to it by a Law, we will Loose no further time, but represent the whole mat- ter to his and our superiours; And for his sitting up Courts by Or- dinance, he knows the mind of this House already in that point.
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