USA > Pennsylvania > Colonial records of Pennsylvania, Vol. II > Part 39
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And we are humbly of opinion that if it were not for this Clause, the Govr. barely as such would have no power at all to make Judges or Justices, for we understand that no subject can constitute such magistrates but by express power from the Crown ; And when that
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power is pursued, they that are so constituted are vertually authorized by the Kings Grant under the Great Seal of England ; So that we conceive this branch of the Royal Charter serves only to authorize the Commissionating of Judges & Justices and relates meerly to the forms of their Judicatures and manner of proceedings, and leaves the Jurisdictions and proceedings themselves to be supported and directed by a Law. And how far the Proprietarie or those magistrates so as aforesd. Constituted, can by Ordinances extend their Power without the Concurrence of the Peoples Representatives is Evident, from what follows in the Royall Charter in these words, vizt: And for as much as in the Govmt. of so great a Countrey, sudden acci- dents do often happen whereunto it will be necessary to apply remedy before the freeholders of the said Province or their delegates or de- puties can be assembled to ye making of Laws, neither will it be convenient that Instantly upon every such Emergent occasion so great a multitude should be called together ; Therefore for the better Govmt. of the said Country, We will ordain, and by these presents for us, our heirs and successours, do grant unto the said William Penn and his heirs, by themselves or by their magistrates and officers in that behalf, duly to be ordained as aforesaid, to make and consti- tute fitt and wholesome Ordinances from time to time within the said Country, to be kept and observed as well for ye preservation of the peace, as for the better Govmt. of the people there inhabiting, and publickly to notifie the same to all persons whom the same doth or may any ways concern ; Which Ordinances our will and pleasure is, shall be observed Inviolably within the said Province, under pains therein to be exprest so as the said ordinances be Consonant to reason and be not repugnant nor Contrary, but so far as conveniently may be agreeable with the Laws of our Kingdom of England ; And so as the said Ordinances be not extended in any sort to bind, change, or take away the Right or Interest of any person or persons for or in their life, members, freehold, goods or Chattles.
That the Proprietr. never thought fitt to extend his Powers to Es- tablish Courts of such General Jurisdiction, as his Lieut. Endeavours by his Instrument now to do, nor did Colonel Fletcher, when he had the administration of this Govmt. under the immediate direction of the Crown, ever attempt to Establish Courts without the Assent of the House of Representatives; But on the Contrary, The Proprietr., in the beginning of his administration, and his former Deputies, as well as Col. Fletcher & his Lieut. as often as there was occasion to Establish or Regulate Courts of Judicature, did it by acts of As- sembly.
We are still of opinion that the present Govr. cannot Establish Courts now by an ordinance without our Concurrence, not only be- cause we are ready to agree with him in a Regular Establishment; But also for that in the Law of Courts lately repealed by the Queen, There is a Clause which declares that all the Laws formerly made & then in force, concerning the Erecting, Regulation and Jurisdiction of County Courts, Provincial Courts, or Orphans Courts are thereby repealed, which laws so repealed were formerly passed by the Pro-
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prietr. or his Deputies, and Ratified & re-enacted by Coll. Fletcher; And we understand it is a Rule in Law, that when an act of Repeal is Repealed, The first act that was repealed is revived, Which gives us just grounds to Conceive that the Laws about Orphans Courts, monthly and Quarterly Courts, & about apeal to the Provincial Courts pass'd by Govr. Fletcher in the year 1693, are revived by the the Queens Repeal of that Law which Repealed them.
But supposing there be no Law to recurr to; Yet we are of opin- ion that when the Courts and Jurisdictions were once Establisht by a Law which is afterwards repealed, no ordinance can be Effectual without the Concurrence of an Assembly to Renew or Establish those Courts again ; for if the Royal Charter had Given the Govr. Power to renew those Courts, It would have also enabled him to revive the Process ; the one being so essential a Concomitant to the other, that without he can do both by his ordinance, he brings the subjects under greater oppression than before.
It is evident That the said Royal Charter directs the Legislative authority here to ordain and Enact Laws for any end appertaining Either to the Publick state, peace or safety of this Countrey, or unto the private utility of particular persons ; and it is as clear that in regard the People have a share in that authority, they ought to have their sufferage in ordaining and enacting those things that appertain to the Publick State peace or safety of this Province ; Now that the Establishment of Courts and Judicatures appertains to the Publick State & peace of the Province, and highly concerns the Queens Prerogative, as well as the Lives, liberty & Estates of her subjects, We think it beyond all Doubt; Then the next thing to be Considered is how the Govrs. Ordinance stands in those respects ; We find no Instances of Establishing Courts by ordinances of Govr. & Council ; But in Govmts. under the immediate direction of the Crown, where the Council are in some Respect Incorporated to the Govr. And have Express Power to Erect Courts by their Ordinance which our Govr. & Council have not.
We perceive that the Govr. expects his ordinance to have the ef- fect of a Law & requires Complyance therewith, under the utmost peril ; And tho' it may now have a shew of a Regular Constitution Under a specious pretence, yet it will be Lyable hereafter to Receive alterations from the same will and pleasure that made it; And have continuance accordingly without being at all submitted to the scru- tiny and inspection of the Queen (as our laws ought to be within the time prefixt by the Royall Charter, And we conceive that if the King intended the said ordinances should be of so general Extent provision would have been made for transmitted them as well as the Laws,) That by the same rule that the Govr. made our Concurrence Insignificant to the Establishment of Courts, he may render ye sufferage of the Peoples Representatives so in all other matters relat- ing to the Publick state peace and safty of this Province, and expose the Tryalls of the lives and Liberties of the Queens subjects, & the determination of their Properties to very great uncertainties; But if an Assembly Could at any rate obtain a law for the Regular Estab-
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lishment of Courts, and it happens that a Govr. who finds that such Judicatures does not suit his purposes will make it his business to procure a Repeal, without assigning any more reasons for it than is given us for the Repeal of the last Law of Courts ; The people must be under a necessity of Re-enacting pursuant to his directions, or of submitting to his Ordinance, which is much the same.
All which matters & Reasons being duly weighed by the Govr., We hope he will be pleased to wave, insisting further upon his ordi- nance, and pass the Bill of Courts, with the amendments and altera- tions proposed by this House, and be satisfied that they ought not, nor can without defecting their Trust, depart from their former Re- solves about Establishing Courts by Ordinances.
Signed by Order of the House N. C. D.
DAV'D LLOYD, Speaker.
The Design of which Remonstrance being manifestly to interrupt the holding of the Courts, and to prevent the Execution of Justice by any methods, but such as are agreeable to the House's own way and Humor, which from their alledging divers things that in them- selves are not true, perverting the sense of the Royal Charter, and inferring divers unwarrantable Implications, they seem resolved, by all possible means, (to endeavour at least) to effect.
It is ordered that an answer to it be prepared, to be made use of where they may be feared to have such an Influence on the People as to obstruct the Good ends' proposed by the Govr., in publishing his sd Ordinance.
The Assembly having adjourned themselves, without due leave for the same first obtained from the Govr., and there being an absolute necessity, that the process should be revived if possible by a Law ; 'Tis resolved, that the representatives shall be Summoned to meet again on the 18th Instant, without fail. Ordered, that writs be directed to the Sherifs for summoning the Representatives accord- ingly.
A petition from the Justices of the County of New Castle, com- plaining of divers Incroachmts. made by some of the Inhabitants of Maryland, upon Lands of divers of the Inhabitants of the said County, & that some of them had been actually served with writts of Ejectmt. under claims from Maryland, tho' their Lands lay within twelve miles of the town of Newcastle, was read, & 'tis ordered yt a Letter be forthwith prepared to the Govr. of Maryland, to acquaint him therewith, & with the great Inconveniencies that must of neces- sity arise upon such Proceedings, seeing the matters in Difference cannot be determined, either by their Courts or ours both being par- ties, and therefore to advise him to refer to the matter to a Determi- nation by Orders from England, and then adjourned.
The Secry's answers to ye Assembly's articles of Impeachmt., entred before, as he briefly drew ym up, & sent ym to ye Proprietor in London.
1st. I suppose this article hath only reference to ye following, otherwise I understand nothing of it.
2dly. This is ridiculous, the Commission being wrote in England,
15*
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but I suppose it arises from this, that when in the first assembly that the present Lt. held, those two Clauses were taken notice of to account for the matter ; I told them that Coll. Hamiltons Commission being drawn by himself before ye Charter of Privileges was granted, by the Proprys. Order, I sent over Copies soon after of all the pub- lick Grants, Charters, Commissions, &c., & among the rest the De- putations to Coll. Hamilton, after which this Govrs. Commission seems to have been Copied in haste, from hence it has been Insinua- ted that I drew a Draught of a Govrs. Commission, & sent it over as fitt to be Copied after; Notwithstanding I had with ye rest of ye Council signed the Writing, declaring it was our opinion that the salvo mention'd was void in itself.
3dly. This is answered in the next preceding ; But it must be observed that in the Lt. Govrs. present Commission those clauses are left out, it is sealed and Recorded, but was not thought necessary to proclaim it.
4thly. D. LLd. is against patents, and would have all grants made like other common Deeds, to be drawn by such as the grantees would employ, I suppose only for his own Benefit, & pleads that'tis none of my business to draw them. We grant our patents in the Proprys. name and stile, as is practised in all America, but he would have them in our own private names, Notwithstanding in Deeds drawn by himself, to be sign'd by attorneys, he prefers the method of making them the same way, Viz: in the name and stile of the Constituents, tho' but private persons ; But it is false that I ever refused any man a Copy.
5thly. By this must be meant the quittrent of Philadia., Lotts, Liberty Lands, & the Welch Tract, wch have always paid from the year 1684, or the first general Location, and has scarce ever been disputed ; the present article is occasioned, I suppose by that obsti- nate man John Swift, who refuses to pay for his 2d Street Lott. The Rent in the Patents is always made 1 shilling sterlg. per &c., & I think is very Just.
6thly. If I had done so I know no Law nor Equity against it, but 'tis positively false, except where the Owners themselves request a Resurvey from the Office.
7thly. This is also false, tho' it has been the Custom here formerly, when two or three Purchasers have taken their Lands in one tract, without running any Partition lines. D. LLds. malice putting me on my Guard, I have wholly avoided it, because I know some shadow of an objection might be made against it.
8thly. When these arrived the last assembly was drawing near to a Close, and the Committee appointed to draw up the Laws, de novo that were objected against by the attorney Genl., had gone through their Business, & were broke up, for this reason some mem- bers of Council & Assembly, that I shew'd them to desired they might not be Communicated till next session; the Govr. had them immediately from me the same day, & kept them till there was occa- sion for them, and when the actual repeal itself came over, they were
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delivered to the House then call'd on purpose, but they found no fault with their not being presented before.
9th. I laid so much of the objection by the Govrs. Order, (for these are not properly my acts,) as was necessary to the business in hand ; but the true grounds of these two articles are this, that possi- bly if the House could have been alarmed at the Discourse of a sur- render, of wch in that honest assembly there was little danger, they might have been practised on to put a stop to the supply. What is said of the same Objections lying against the last laws is false, for there are but two places in the whole body of them that can be effected with these objections, & that was through Inadvertency.
10thly. The Resurveys being then the great business in hand, would have been found either wholly impracticable, or much more expensive under a Surveyr. Genl., wch was the reason yt there was none appointed, but I never made a farthing to my self by the office.
11thly. I was obliged to keep the Laws till I had taken Copies for England and for the Counties, & then I delv'd them.
12thly. I have always detained patents till what was due upon them was paid or secured, & no longer, & no honest man would de- sire them sooner, nor does he deserve the name they would make use of the Exemplification before he has a right to the original ; this is truly the case.
13thly. What is said of the Charter of Privileges is utterly false, for I never mentioned one syllable about it to this purpose; But of Philadia. Charter I will maintain to be true what is here alledged, for they claim & receive all the fines within their Court, in wch they try all pleas of the Crown but Capital Crimes, which I affirm was never intended, having been Concerned myself in debating the whole matter at the time of the Grant.
14thly. The People had their Choice, 1 8br. 1705, according to Charter, and one of the two persons Chosen, vizt., Benjn. Wright, was Commissionated, an act of last assembly altered ye Charter in that point and makes the Election annual, but in the Close there is this proviso, viz : that no elections shall be made for any Sherif or Coroner before the time Limited, for those who are at present in those offices respectively shall be expired, wch time is Confessed to be 3 years. B. Wright lost his place for an official failure, & the assembly would have the choice return next year, viz : last 8br., but the Law says positively, there shall be no election till those three years are Expired, as 'tis interpreted by the Lawyers to whom it has been referred ; a small number 'tis true chose Jno. Budd, & he peti- tioned the Assembly upon it, he several times also applied himself to me as his frd., upon which I promised him my Endeavours, but told him he could not come in upon that election, for it was not good by the Law nor any other way than to supply the Vacancy, upon Capt. ffinney's being removed till the 3 years were expired, & thus I thought, then the Govr. was prevailed with to grant it to him; the Assembly sending for him he mention'd what had passed between us, not believing 'twas possible to make any ill use of it, but their mali- cious Chymistry extracted this out of it, for which he affirms he gave
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them no just occasion. As for my own part I only advised him as a friend, & between ourselves not to spend his money & time in suing for what the Law (he would find) would Certainly give against him, but yt seeing he wanted the office, he would take it upon such terms as he could get it, which also were the only terms on wch it could Legally be granted.
J. LOGAN.
At a Council held at Philadia., March ye 19th, 1706-7.
PRESENT :
The Honble JOHN EVANS, Esqr., Lieut. Govr.
Edward Shippen,
James Logan,
Samll. Carpenter,
Richd. Hill,
Esq'rs.
Thos. Story, Esq'rs.
George Roche,
Caleb Pusey,
The Sherifs of the several Counties having made returns of the writts directed to them for Summoning the Assembly, the Govr. proposed to the Board to Consider of the best method to proceed with the House upon this meeting, for that now seeing the Courts had been regularly held in every County, by virtue of the Gover- nours ordinance, without any obstruction, notwithstanding all the Endeavours the House had used to prevent the same, by obtruding upon the grand Juries and others Copies of their last remonstrance, and by such other like methods, all wch proving ineffectual, there might be good reason to hope that the House being made sensible of this would rebate of their obstinacy, & be prevailed on to come at last to reason.
Upon which the following message was drawn up, and agreed to in these words.
ffrom ye Govr. to ye Assembly, March ye 19th, 1706-7.
The Govr. being still desirous that all the wants of the Publick, should as far as in him lies be fully supplied, that fees may be regu- lated, & the pleas and process revived, thinks fitt to continue his offer to pass ye Bill for Establishing Courts, upon ye Terms of his last written messages.
The Govr. and Council were of opinion, from the House's mes- sage of the 22d of february, & still hope that the Assembly waved all those points that had been objected against, those of Licensing Publick Houses and Removing of Clerks, Excepted for the Regula- tion of fees could properly be no objection ; The Govr. having always himself prest it.
To the first the House is desired to take it as the Govrs. positive answer, that the granting of Licenses being no part of the regulation of Courts, nor necessary to it, he will by no means agree that it be brought into this Bill; but is willing to Concur in any thing that can be reasonably proposed for the better Regulation of Public Houses. The Invalidity of the argumt. against the Govrs. Licensing of those Houses, taken from the objection of the Lords, is so very
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obvious that it requires no answer, for if because the Proprietr., after a surrender must not have that power ; therefore, the Govr. ought at no time to have it, it will as well hold by the same argument, that because after a surrender the Proprietr. must not Exercise the Powers of Govmt., therefore there must be no Govr., and the House is earnestly Intreated to forbear troubling the Govr. with such empty amusements that only occasion loss of time, and by their weakness throw a reflection on yt Legislative Authority, which were this the only Instance of ye Kind, even in their last unwarrantable Remon- strance would not now be thus mentioned.
As for the Removal of Clerks, the Govr. is of opinion that there is as ample provision made by the Proprietrs. Charter as is necessary in relation to these officers; and being what the Proprietr. thought fitt to Grant ; the factious humours that frequently predominate in these parts, render it unsafe for the Govr. to concede to more, tho' if there were that even Temperature here as in England, it might more easily be granted ; but the House has often been told that our Circumstances, widely differing things will not equally suit and the House is desired to Consider, whether if the Govr. would absolutely refuse to pass an act for Courts unless the House would agree to es- tablish a Militia for the defence of the Queen's subjects, and bring for an argumt. not only one particular statute of England for it, but a great number together with the Practice of it from the first begin- ning of Govmt., & further alledge that there are such acts past, not only in England, but also in every other Governmt. in the Queen's Dominions, and besides that it is the Express Command of the Govmt. in England that there should be the same or something Equivalent here ; should the Govr. absolutely deny to Restore the administra- tion of Justice to the Countrey, unless ye House would consent to this for which so many powerful arguments are produced, they are desired to consider what their sentiments would be upon it, and to think of the Parallel.
For settling the fees, the Govr. renews his former proposal of hav- ing it done by Committees, & the House is desired to return their answer without delay, but they are in general required to take notice that the Govr. is well assured of the sufficiency of his power in Establishing the Courts as have been done, and that it was his indispensable duty so to do, and untill they shall be brought to another foundation by a Law he will assert that Power and Exact a full Complyance.
Signed by Order of the Govr. JAMES LOGAN, Secry. Ordd. that R. Hill & C. Pussey carry the sd message, & then adjourned.
At a Council held at Philadelphia, the 21st of March 1706-7.
PRESENT :
The Honble JOHN EVANS, Esqr., Lieut. Govr. Edward Shippen, Richard Hill, Samuel Carpenter, George Roche,
Caleb Pussey, James Logan, Ì Esq'rs.
Joseph Pidgeon, 1
Esq'rs.
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The Govr. laid before the Board a message he had reced. last night from the House, in these words.
The Assemblies answer to the Govrs. message sent to the House on the 19th of March, 1706-7.
May it please the Govr.
Our desires to have the wants of the Publick better supplied, pre- vailed with us so cheerfully to embrace this opportunity of meeting the Govr. at a Juncture wherein our Domestick affairs may greatly suffer in our absence, the season of sowing the summer grain being begun, and our cattle at the weakest.
That in as much as the Govr., before our last adjournment on the first Instant, seemed so willing that we should not then be put to further attendance, but might repair to our habitations ; We hope yt his calling us at this time would have been to pass the Bill of Courts with the amendments agreed on, or that he had some new matter to lay before us, which would Conduce to a more regular Establishment or bring the Bill nearer to suit the minds of our superiors, that so it might be more likely to obtain the Royal Sanction; But to our great disappointment we find the Govr. still insists upon the same points which we gave him our particular answer and resolutions upon, and see no cause to recede from, till reasons more cogent and applicable be advanced to Invalidate what we have offered, and still do insist upon concerning those parts of the Bill whereunto the Govr. refuse his Concurrence; Which we understand by his last message to be, that about Licensing Publick Houses, and about removal of Clerks, the one being by us proposed as the most effectual means to prevent the Debauchery of this place, and the other intended only to settle the method of Convicting such officers here as it is in Eng- land, which will render the Proprietrs. Charter more consistent & practicable in that Point, & be very safe for the Govr. to con- cede to.
We do not understand that factious humours have been so predomi- nant here as when some were acting their parts to Influence ye Election of Reprs. in the year 1705, and when the Militia were drawn up in a military posture to awe the Electors at Philadelphia, in the year 1704 ; but why the temperature of the People should be more uneven here thon in England is not yet demonstrated, unless by the vulgar notion that the Intemperance of the Climate does In- fluence them, which cannot be justly inferred, for experience shews that tho' this place be, (as the Proprietor formerly observed) about the Latitude of Montpelier in ffrance, yet the People are generally averse to any, but an English Constitution, as is evident not only by their dissatisfaction with the late ordinance set up instead of a Law for Establishing Courts, But when other attempts have been made upon their Birthright as English subjects.
We acknowledge, as the Govr. has intimated, that the Circum- stances of the subjects here and in England, widely differ, and that Every thing which may suit the Generality there will not be proper here, Especially such as interfere with our Religious perswasions ; but to infer from thence that we ought not to have the Common
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Rights & privileges of freeborn English subjects, or adapt such parts of that Constitution as may supply the defects of our own in the matters now in debate, we think as empty an amusement as any thing we have offered, and do earnestly entreat we may not be troubled further with such amusements, least it bring that reflec- tion upon the Govr. which his message would throw upon that part of the Legislative authority wherewith we are at present Intrusted.
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