USA > Pennsylvania > Colonial records of Pennsylvania, Vol. II > Part 69
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cil & Assembly, are declared to be in full force from the time of Enacting.
The same worthy Gentlemen & Govr. is further pleased in the said print to Publish an Instruction from the late Queen, in whose Reign that act of Assembly was made, directing him to pass such an act in New Jersey ; By which Instruction her Majesty was pleased further to Declare her Will and Pleasure ; That such of the People Called Quakers, as shall be found Capable of serving in her Coun- cil, the General Assembly, & in other places of Trust & profitt in New Jersey, and accordingly be elected or appointed to serve therein, may upon their taking & signing the Declaration of allegiance to her Majesty, in the form used by the same people in England, to- gether with a solemn Declaration for the true Discharge of their respective Trusts be admitted to any of the said Places or Imploy- ments ; And he adds that the same Instructions are word for word also contained in his present Majesty's Instruction to the Govr., Dated the 1st of July, 1715, By which it appears that both the late Queen was, & his present Majesty is willing that the People Called Quakers, immediately under their Governmt. in New Jersey, should Enjoy the full Privileges which are craved here as due to the People we Represent, by their Charteral Rights under the Govmt. of our Proprietor, Wm. Penn.
To this we may add what has also been observed on the same subject by the Chief Justice of New Jersey, in his Speech Delivered at the Supream Court in May last, at Burlington, which is also printed, Wherein he clearly gives his opinion in Law very nearly in the same terms the Govr. had done before, & then proceeds in these words, vizt :
This act of Parliament of Great Brittain is an Enlargement of the Quakers Privilege to what it never was before. It makes that per- petual to them in England, which before was temporary, & Expired or near Expiring by its own Limitation, Carries the same into that part of Great Brittain, Called Scotland, where it was not before, and makes it perpetual there and into the Plantations generally, for five years. This does no way hinder, but that by virtue of the act of assembly of this Province, (which is a municipal Law therof,) the Quakers or reputed Quakers are Qualified to be of Juries & Evidence, & bear offices of Trust and Profitt in the Govmt .; Nor but that they may be so Qualified hereafter, by any other Law hereafter to be made for that or the like purpose, altho' by virtue of that act of Parliament they are not so Qualified.
Having thus far stated this point we should now leave, But that we are obliged to give the sense of this House to that part of the Govrs. answer to our Resolves, in which he is pleased to say, that tho' he was of opinion he Could not be safe in giving any Qualifica- tion but an Oath, yet by a Dedimus (they the officers and witnesses) might have been qualified as the Law directs.
On which we humbly observe, that tho' it be very certain that a Dedimus Potestatum, duly Issued by the Govr., is no less sufficient in Law for administring the Qualifications to any Officer, than the
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Govrs. act in his own Person, which notwithstanding the Govr. has not of late, that we know of, Condescended to, but refused to admitt such of those called Quakers, as by virtue of the Propry's Charter to the People, were elected to serve in certain offices until that more remarkable case of the last Qualification of the Mayor of Philadel- phia ; yet no such Dedimus will answer the Exigencies of this Go- vernmt., should the Govrs. opinion obtain, for should it be taken for granted that the affirmation act of this province is actually Repealed by the act of Parliament, then all such Qualifications will be con- strued illegal, whether given by himself or other persons Impowered by him, and as the Judges of the Supream Court have rendered their reasons to this House for their not proceeding to try the Criminals now in the Respective Gaols of this Province, vizt. : That they cannot think it prudent to proceed, by virtue of the Govrs. Com- mission to them in opposition to his opinion in so tender a point as the lives of his Majesties subjects ; so all others must be discouraged in cases of such vast consequence, for no Dedimus will make that act sufficient that is in self Illegal.
It has by this time, we hope, clearly appeared from what has been offered, that this opinion of the Govrs. is (with submission) neither founded on Law or reason ; But from hence we cannot but desire the Govr. may be induced more seriously, & maturely to consider how unaccountable & astonishing is must appear to mankind, that while such a person as Govr. Hunter, who holds his Commission directly from the Crown, is accountable to no other principal nor under obligations to any called a Quaker as a superiour, has thought it necessary, in the discharge of his trust, to publish his reason in such a manner for removing mistakes & allaying the Disturbances, from thence fomented, at the same time, tho' such an example be sett to us at no greater distance than the other bank of Delaware, Our Propr., Wm. Penn's Lieut, in the Province of Pennsylvia., should be drawn into measures so injurious, not only to the Interest of his principal from whom he derives his power, but to the very being of the Constitution over which he is intrusted to preside. We heartily wish we could, by any Construction, find other causes to which these procedures might be imputed than a formed design; But we are justly alarmed at some other late Proceedings of the Govr., Which as they have naturally fallen under our notice, we think ourselves also obliged in duty to Represent.
When the House had chosen their Speaker, and the Govr. with- out any objection approved their choice, they proceeded to take their usual Qualifications, as the Law in that case directs; But upon the rumours that had been spread of persons disaffected in his present Majesty, that this House might give the utmost Expressions, they could of their Loyalty, they by a message to the Govr. requested to know if besides what they had taken as usual, the Govr. had any di- rections from Great Britain, or any further qualifications to offer to the House, to which he was pleased to answer, he had not ; the House notwithstanding resolving to neglect no part of their duty, but to give all the assurances of their loyalty to their power, thought fitt
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unanimously to take & subscribe the test called the abjuration, every one in the way prescribed to them by the several acts of Parliament, accordingly to their Religious Perswasions, & then proceeded to the business before them.
But being informed that the Govr. had at divers times, and to sundry persons, Charged the present Mayor of the City of Phila- delphia, now Speaker of the House, as a person disaffected to his Majesty King George; And that he further alledged the only cause of difference betwixt him and the said Mayor, was because the Govr. would not agree to proclaim the Pretender, or Words to the same Effects ; the House conceived themselves obliged in duty to his said Majesty, to enquire into the grounds of his henious charge, that in case there should be any found, they might purge themselves of the scandal.
Accordingly, having in a committee of the whole House, taken full proofs that the Gov. had so charged the Speaker, and finding by the same Evidence that he had in the same manner also Charged James Logan, Secretary of the Province, they by a message desired of the Govr. that he would be pleased to lay before the House his grounds for those accusations, but he returned no other answer than that he thought himself not obliged to render any reasons to the House for his accusation, but would do it at the board at home ; and members sent on the message could not perswade him to give any reasons here.
The House hereupon judged it still more incumbent on them to inquire fully into this matter, and accordingly they by a written mes- sage informed the Govr.
That being under a deep concern on all occasions to shew their loyalty as faithful subjects to King George, they could by no means think themselves discharged of their duty, without further Inquiry into the truth of the Report which they had received & acquainted the Govr. with, which affected their Speaker & another person bear- ing considerable offices & trusts in this Govrmt. ; & finding the Govrs. answer to ye last message concerning the same not satisfactory, they further acquainted him that the House intended immediately to re- solve into a Committee in order to enquire into that matter, & that the said committee would be desirous to receive from ye Govr. or any other person, any Information Concerning the same, in order to proceed to the extent of what is their duty, and purge the House of any member or members thereof that may appear or shall be found guilty of disloyalty to the King, or disaffection to his Govmt., under which the House unanimously declared themselves extremely happy & well satisfied.
But the Govr., tho' another message was sent him to crave his an- swer, could not be prevailed on to give any, but that he had nothing to lay before them; the House notwithstanding while formed into a Committee for that purpose, proceeded to make the utmost inquiries in their power, but could not find the least ground to suspect the persons charged, or to believe the accusations against them had any manner of foundation.
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Now what sentiments can be formed of such a conduct in a person acting in so exalted a station, the House must acknowledge them- selves to be at a loss to determine; But the House would consider it as no small happiness to the whole Province, could they be assured that the Govr. had no design by his representations to any Board at home, to raise a merrit to himself on the ruin of others, who, could they be heard there and fully known, might be found as faithful and loyal in their stations, to the Present Establishmt. and succession as any of the King's subjects whatsoever ; had the Govr. believed the Speaker to be such a person as he has thought fitt to render him, it was doubtless incumbent on the Govr. to except agst. him, when first presented by the House in that station, or had he suspected either the Speaker or any other member to be disaffected to the King, it might no less be Expected that he should have recomended to the House the further Qualification of ye abjuration as a test to them ; But if the Speaker of the House of Representatives of Pennsylvia., & others acting in great Trust, are to be rendered to the ministry, or any Board, as persons so notoriously disaffected as the Govrs. charges imply, and this without the least proof offered here, tho' so im- portunately and yet dutifully solicited; It will force all thinking Persons on Apprehensions, yt there is more Intended by it than can safely be Acknowledged here, where things and persons are better known than can possible be at such a Distance as the other side of ye Ocean.
Having proceeded to such a length in these two Important subjects, We should now Choose to bring this Representation to a Period, but that the Govrs. written answer to another message from the House Exacts our notice, In which he is pleased to say ; That he is given to understand, (for which he thinks fit to quote the Language of former Assemblyes, & some of the Council,) that this House did not design to make Laws nor raise any money this Session, but upon terms inconsistent with the Govrs. duty & safety to Compyl with ; To which the Justest Reply we Can at present return, is, That this House came together with no other views than to Discharge their Duty in all respects to the best of their skill & power; and they have nothing to Crave of the Govr., but what they firmly believe is not only his Duty, but for his Honour and safety to grant them, they would willingly have proceeded to enquire what further Laws may be necessary for the well being of the Province in General; the Govr. having told us in his speech, That if we should have any other bills to offer that might be for the Interest and Tranquility of the people, He should be ready to pass them, and Promised himself that we would make a return suitable to their Circumstances, and advan- tages they will receive by them. But in his next written message He informed the House, That we disagree from both the Council & Assembly, in his opinion, upon a point of such importance to the se- curity as well as tranquillity of the people, that no other bill of ours can be of more to us; The purport of which was that he declared, (in opposition to both Council & Assembly,) that one of the last Laws he himself had passed, which most nearly affected us, was void,
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and this by Constructian only ; We could not, therefore, find any Encouragement from the Govrs. proposals to us, to think any other bill we could offer was worth the solliciting, and much less deserv- ing a further Consideration.
To this we must not omitt adding, that we find Judgment was give agst. one Hugh Lowden, at the Court of Common Pleas in Septr. last, whereupon the said Hugh Lowdon, giving away to the greatest Resentment's & Rage, vowed Revenge at the utmost hazards against the aforesaid Speaker & Secry, (being two of the Justices of that Court) & having furnished himself with pistols, way laid them at their doors, and meeting ye Speaker ye same night he presented at him a pistol loaden'd with Bullits, altho' by the overruling hand of Providence no further mischief ensued. As this attempt could not but raise a horror in the hearts of all good men, We find ye said Lowden was bound over to the Court now sitting, and Indictments were found against him for the same, at which the Govr., instead of protecting the magistrates in the Discharge of their Trust, has now thought fit to grant Nolle Prosequis in the said Lowden's favour, in the same manner he had formerly done for one ffrancis Philipse, (that scandal to his order,) when Indicted & prosecuted for notorious Crimes, after all the neighbouring Clergy had disowned him.
Which proceedings as they render the administration Contempti- ble, so we also justly fear they will encourage ill minded men to the same attempts in hopes of ye like favour.
But to sum the whole up, we can truly say, We are extreamly troubled, that we cannot Enjoy the same Happiness that most of our neighbours respectively do, of seeing our Govr. take such measures as should, by an agreeable force, sway the Peoples inclinations to render him Easy in all respects, which can be effected by no means so powerful as first rendring them Easy in the Enjoyment of those privileges which they have an undoubted right to ; and we are but too well assured, that the only cause of a failure herein is the Govrs. mistake since the Proprietors Indisposition in the choice of his ad- visers who, whatever views that they at present form, will at length be found the sole occasion of all the Disappointments that may fall to the Govrs. Portion ; For even tho' acting by a Commission imme- diately from the Crown, He would have the same Injured People to deal with.
And as a further Confirmation of our opinion contained in this Representation, We offer the following Law cases to the Govrs. con- sideration.
It is evident that the proviso in the said act of the 7th & 8th of King William is dispensed with, & the solemn affirmacon Extended to Qualify those people in these Plantations which could not be Qualified after that manner in Great Brittain, so that the Extend- ing Clause in the said act of the first of King George being in the affirmative, and to be taken according to the true intent of the ma- kers, cannot alter a former power, nor abolish our affirmation acts founded upon the Kings Charter and prerogative Royal ; and it is absurd to imagine, that because the statute of the first of this Reign
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is in the affirmative it implies a negative, which excludes the Kings Prerogative or our Charteral Rights, for ye Law is otherwise as ap- pears by authoritys and Resolutions in cases of that nature, as in Doctor Birch's Case Reported by Shower & 4th modern, Its ad- judged that the Kings Prerogative is part of the Law of the King- dom, & the Law is the Judge & measure of Right & Wrong. That the acts of Parliament have received particular interpretations to avoid a Particular Prejudice; But no case can be shewn where the words of an act of Parliament have been Enlarged to make a Con- struction to barr or overthrow that which the makers never thought of or intended to meddle with.
The words of the said Proviso in the 7th & 8th are, that no Qua- ker or Reputed Quaker shall, by virtue of this act be Qualified, &c., which make it evident that by those Express words, vizt : by virtue of this act,) the Proviso Extends to none that are to be qualified by any other act or power, as in Doctr. Foster's Case in ye 11th Report, Its adjudged, That when the Negative clause in ye act, 3d Jacobi, vizt. : That no person shall be Charged for his Wife's offence, &c., doth not extend to a feme Covert, to be charged either upon the sta- tute of 35th Eliza., at the Queen's suit, or upon the act of 23d Eliza., at the Informer's suit, for the Words are Expressly penn'd., That no person shall be charged for his Wife's offence, by virtue of this act, viz : the act 3d Jacobi.
The statute of 32d, Hen. 8th of Wills is adjudged to be in the af- firmative, and so doth not take away a custom of Devising Lands, and yet the Clauses which gives Power to Devise Lands, concludes with these words :
Any Law, Statute, Custom, or other thing heretofore had, made or used to the Contrary notwithstanding.
In the Case of Blankard & Gundy, in the King's Bench, on a Bond given by the Defendt., for a yearly sum reserved by the Plain- tif, ye Defendt. Pleaded the Statute of Edwd. 6th, made agst. buying & selling of offices, &c. ; In which case it was held that Jamaica was not Govern'd by the Laws of England, and further, that in Barbadoes all freeholders are subject to Debts and are Esteemed as Chattels till the Creditors are satisfied, and then the Laws Descend to the Heir. But the Law is otherwise in England, which shews that tho' Barbadoes is a Parcel of the Possession of England, yet 'tis not Governed by the Laws made in England, but by their own particular Laws and Customs and for these Reasons Judgmt. was given for the Plaintiff.
In the Case of Wey & Yally, in Debt for rent, upon a Demise of Lands in Jamaica brot in London, &c. It was adjudged that upon Nil. Debet pleaded, the Defendt. might give the Law of that Coun- trey in Evidence, and this (as the Chief Justice says) we see every Day done before Committees of appeals from thence, and Justice Powell remembred. that an accon. of false Imprisonmt. had been brought at Westminster against a Govr. of Jamaica, for an Impri- sonmt. in Jamaica, and the Laws of. that Countrey given in Evi- dence, by all which it appears that the Municipal Laws of the King's
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Plantations, are taken Notice of by the Judges & Committees of ap- peals in England, and allowed to be effectual in Law, tho' they Differ from the Laws there.
And its adjudged in the 5th Report 63, That by a Law or ordi- nance made in Corporations may be put in Execution without any other allowance, Notwithstanding the Statute of the 19th Henry 7th, By which it is Enacted, That no masters, &c. of Crafts or Mysteries, nor Rulers of Guilds or Fraternities, take upon them to make any acts or Ordinances, neither to execute any acts or ordinances by them heretofore made in Disheritance or Diminution of the Pre- rogative of the King, nor of other, nor agst. the Common Profitt of the People ; But that the same acts or Ordinances be examined or approved by the Chancelr. Treasurer of England, or Chief Justice of either Benches or three of them, or before both the Justices of As- sizes in their Circuit or Progress in that Shire, where such acts or Ordinances be made upon pain of forfeiture of forty pounds for every time that they do Contrary.
We do not find by the first of King George that his Majesty's Power of approving the forms of affirmacon prescribed by our Laws is in the least abridged ; For the King may Dispence with the statute of the 9th of Edward 2d, which directs the meeting of the Treasurer, Judges & Barons for pricking Sherifs, because it takes not away"the Kings Power to make, but only Directs a form, see Hub. 214, and tho' the statute of 25th Hen. 8th, Ch. 21, says, That all Dispensa- tion, &c., shall be granted in manner following & not otherwise, yet the King is not thereby restrained, but his power remains full and perfect as before, and He may Grant them as King, For all acts of Justice & Grace flow from him, as Dier. 211 : The Commissn. for tryal of Piracy upon the statute of the 28th. Hen. 8th, Ch. 13, is good, tho' the Chancellour do not nominate the Commisrs. as the statute appoints, and yet it is a new Law.
At a Council held at Philadelphia, the 10th of Decr, 1716. PRESENT :
The Honble. CHARLES GOOKIN, Esqr., Lieut. Govr.
James Logan, Richard Hill,
Jonathn. Dickinson. \ Esq'rs.
Robert Assheton. S Isaac Norris, S Esq'rs.
The Govr. laid before the board the Hardships the Prisoners in the Goal of Chester, for murthering Jonathan Hayes, Endured & Lay under for want of a Tryal, & Desired the Council to Give their Opinions which way would be most convenient to Expedite their Tryals ; and the matter being sometime Debated, the Council were of Opinion that unless the Govr. will Countenance and assist the Judges in the Tryal of the Criminals according to the Laws of the Province, It is reasonable they should be lett to bail till the present seeming Difficulties should be removed, to which the Govr. Con- curred.
The Govr. mett the Council no more During the time of his ad-
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ministration, tho' they took vast pains in divers meetings with him, & by other more laborious measures to preserve him from the mis- chievious Influences of that unhappy man, (who had married his much more valuable sister,) Rd. Birmingham ; Divers of them having at sundry times taken Journeys to N. Castle to keep the incenced people of that County, who were more particularly insulted & op- pressed, from an Insurrection or intire revolt.
But being by his own Imprudent Conduct much pinched in his Circumstances, he Endeavoured to be reconciled with the Assembly, between whom and himself these following transactions pass'd.
March 19th, 1716 -- 7.
A message from the House by Clemt. Plumstead, Jos. Kirkbride, & Jno Worral, acquainted the Govr. that the House were mett, & desired to know whether he had any thing to lay before them-to which the same members carried the following answer. GENTLEMEN :
I am very glad of this opportunity of meeting the Representatives of ye People, that I may take my leave of them, for I am well assured I shall soon be superseded, for the little time that I am to be with you, I shall be ready to do the Countrey all the service I can.
I must therefore once more recommend to your consideration what I laid before the Assembly of last year, & what I have mentioned sometimes to you.
You may be now your own Carvers, and you will not think me unreasonable in my expectations when I tell you that as the first Assembly I mett with had a regard to the Charge of my Coming over, so you Gentn., who are to be the last, will, I hope in some measure, provide for my going back to seek another Imployment.
I intended to have said more on this subject to you, but the thought of what I have left, to serve Mr. Penn in this Province ; The Disappointments I have mett with, & the uncertenty of being provided for at home, so fill my mind, That you will Excuse me that I say no more.
Upon wch a message from ye House by 3 of its members, Jos. Kirkbride, Jos. Redman, & Jos. Penncock, acquainted ye Govr. that ye Assembly had voted him one hund'd. pounds, of whch they desired his acceptance ; ye Govr. thanked ym., but said, He hoped they would have made it more ; they also desired to know whether he had any thing further to lay before them, otherwise they inclined to adjn. to ye 6th of May next; but ye Govr. desired ym. to meet him in ye morning, and take a Glass of Wine with him.
March 20th, 1716 -- 7.
A message from ye House to ye Govr. by Dav'd Lloyd & Jno. Sotcher, to acquaint ye Govr. yt ye House is mett, & desire to know whether he is any thing further to Communicate to ym. The Gov. desired ye House would make ye sum voted yesterday £200, and accordingly Dav'd Lloyd, Wm. ffishburn & Jno. Sotcher, ye same day presented ye Govr. with ye Speakers Order for the said sum of two hundred pounds.
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May ye 16th, 1717.
A message from ye House by Jos. Redman & Jno. Sotcher, in- formed ye Govr. that ye Assembly were mett, according to their last adjournment, & crave to know whether he has any late advices from England to communicate to them, otherwise they incline to adjourn to ye 18th Septr. next; to which the Govr. answered he had nothing further yn. what he had Communicated to ym. before ; yt he should ever be ready to do ye Countrey all ye service in his power, & that he had no objection to their proposed adjournmt.
Govr. Gookin was superseded by Govr. Keith's arrival with Capt. Annis, ye 31st of May, 1717, and the succeeding minutes of Council were continued by my Deputys, Ralph Assheton & Geo. Barclay, under Governr. Keith's inspection.
J. LOGAN.
END OF VOL. II.
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