USA > Pennsylvania > Colonial records of Pennsylvania, Vol. III > Part 4
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1st. That in any case where the King, (as in the Proprietor's Let- ters Patents,) Expressly reserves to himself and his successors the allegiance due from a subject to his sovereign; his Majesty cannot at the same time be understood to Grant away and transfer any Pre- rogative which is Essential to, and inseparable from the Sovereignty it self, and which the Common and Statute Laws of England do assert to be the Inherent and unalienable Rights of the King's Ma- jesty.
2ndly. That whatsoever might have been the Practice at the beginning or Infancy of this Colony, Yet by the Course and admin- istration of Governmt. now for several years past, it doth appear that neither the Proprietor nor any officer under him ever so much as claim'd or pretended to the Prerogative of Issuing any manner of Process in the Proprietor's Name, On the Contrary, Acts of Assem- bly have been pass'd, and are now in fforce to Command and Direct all Process to Issue by Writts in the King's name.
Wherefore I conceive that as the Judges' Commissions cannot pos- sibly be derived or proceed from any lesser Authority ; So neither Can two such different and distinct Personages as the King and his subjects, be made Use of to authorize and carry on the several Com- pounding parts of one and the same Process.
3dly. I have with attention perused this Copy of the Proprietors Letter Patents now in my hand, and do verily think that any per- son who has been but a little Conversant with the Law & Constitu- tion of England, carnot possibly Interpret the Powers of constituting Judges, &c, thereby granted to the Proprietor any otherwise than that the Proprietor is by these Letters Patents authorized and Privi- ledged to make use of his Majesty's name in the Issuing of Certain
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PROVINCIAL COUNCIL.
Commissions for the better Government of the Kings subjects in this Colony, to such person or persons here as the Proprietor or his Deputies shall think proper for that service.
4thly I cannot but understand the Priviledge Granted to the Pro- prictor by these Letters Patents of Issuing his Commissions in the Kings Name to such persons as he shall think ffitt to be more hon- ourable of greater authority, and I am sure, attended with more safety, as well as Entituled to greater protection, than if it had or could have been Granted, as some would now seem to understand it.
5thly. Should these Commissions be granted in any other than his Majesty's Name, I conceive that if it did not actually overturn, it would at least subject all our judicial proceedings in this Govern- ment to such Exceptions and Cavils as must render the Magistracy Contemptible if not blameable.
And Lastly, I have but too much reason to apprehend that such a measure would greatly endanger the Proprietors unquestionable Right to Chuse & appoint the officers of Government in this Pro- vince.
These, Gentlemen, are the reasons why at this time I think that the Commissions for Judges and Justices of the Peace ought to be Issued in his Majesty's name.
But as this matter is in itself altogether indifferent to me on any other Accot. than what is above mentioned, I am not only ready to. hear your opinions, but also to follow any advice which you shall think proper and Consistent with my Duty to the King, the trust which I have received from the Proprietor, and the Reputation of an honest man.
The matter being largely debated, it was alledged on the other side, That the difficulty of coming to any certainty in this and such other points, arises from our not distinguishing fully between the state of England and that of New Colonies made without the Verge of the ancient Laws of that Kingdom.
That as the King of Great Brittain can grant his Royal Licence to any number of his subjects, to transplant themselves out of that kingdom into any other Princes Dominions where they would not be Governed by the Laws of England ; So he may unquestionably grant them the same to remove into any foreign Land where they may find footing, and this upon such Conditions as he shall think fitt to prescribe to them.
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That these American Lands being new Discoveries of Tracts long Settled by their native Inhabitants the Indians, who were under no subjection to nor had any knowledge of the Laws of England ; those Laws whenever they come to reach these Lands, must by some regu- lar method be extended to them, for they cannot be supposed of their own nature to accompany the people into these Tracts, in America, any more than they would the same persons going into any other foreign part of the world.
That King Charles the Second, in the Grant of this Colony to our Proprictor gave him, with the people accompanying him, full power
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to Enact Laws for themselves not repugnant to those of England, without extending any other than such as were judged absolutely necessary for the peoples peace and Common safety, till such time as they should think fitt to alter them.
That the King, in reserving to himself the sovereignty over these People, declared only that they were to Continue his subjects, and that he was still their natural Prince ; But that his Royal Preroga- tive as Exercised in England, which in some measure is a part of the Laws & Constitution of England, can no more be understood to ac- company the Sovereignty than all the other Laws can, for in Eng- land it is the Prerogative of the Crown, amongst other things to summon and dissolve Parliament; but it is not so with our assem- blies while our own Laws are in force.
That the Proprietor, by Virtue of the Powers of the Royal Grant, has by his Charter to the People of this Province, appointed the Election and Meeting of Assemblies ; as also the Election of Sherifs and Coroners, (who in Great Brittain are the immediate officers of the Crown) in a manner wholly Inconsistent with the Royal Prero- gative in England ; and this method being further enacted into a Law, it has passed the Royal assent, which is a full proof of the Crowns approbation of it. In the same manner the Proprietor might have granted the appointment of Judges and Justices, without any Commission from himself or his Lievtenant, which would have put this matter in Debate out of Question.
Therefore, the Practice in England in these cases cannot properly be pleaded as a rule to us.
The other Proprietary Governmts. in America, particularly Caro- lina and Maryland, have used their own stile and granted their Com- missions only in the Proprietors names, without being questioned for it as far as we have heard, and the same having been hitherto prac- tised, here appears there no necessity that at this time such an Inno- vation should be introduced by our selves, while under the Propric- tors Government,
That the alteration in the stile of the Writts some few years agoe was but an accident, and implies no necessity that commissions should run in the same, writts being but a part of the practice of the English Law, which it has been thought proper in some measure to introduce into our Courts, but that the Commissions being a delegated Power from the Proprietor and his Lievtenants, they may justly bear the name of him in whom the power of Granting them is principally Lodged.
"T'is therefore humbly proposed, that the Proprietors stile should still be Continued till such time as the Government be resigned to the Crown or such orders be given for that purpose, as have never hitherto appeared that we know of in any Proprietary Government in America.
And a majority of the Council adhering to these sentiments, The Governour at last Condescended, that the said Commissions be Is- sued in the Proprietors name and tested by the Governour, which was Order'd to be done accordingly.
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PROVINCIAL COUNCIL
At a Council at Philadelphia, the 15th ffebry., Ao., 1717.
PRESENT :
The Honble WILLIAM KEITH, Esqr., Lievt. Govr.
Richd. Hill,
Robt. Assheton,
Isaac Norris,
James Logan, Secry.
Jona. Dickinson,
The Governr. acquainted the Board that the Proprietors Commis- sioners of Property had lately Represented to him in Writing, that certain persons from Maryland had, Under Colour of Rights from that province, lately Survey'd out Lands not far from Conestogo, & near the thickest of our settlements to the Great Disturbance of the Inhabitants there, and that for preventing the Disorders which might arise from such Incroachments, they Desir'd that magistrates & pro- per officers should be appointed in those parts in order to Prevent the like for the ffuture.
The Governour also imparted to the Board the Copy of a Letter which he had wrote on this Occasion to Collo. Hart, Governour of Maryland, and further added, that this Day the Secretary had shewn him a Letter from Collo. ffrench, Informing of ffurther Designs of the same kind, that the same persons from Maryland were Imme- diately.upon putting in Execucon; That hereupon he thought it ne- cessary fforthwith to Call the Council, as he now did, and Desired their Advice what methods might be most proper to be taken in the premises.
The Board was unanimously of Opinion that these procedures being a Bold & most unjustifiable attack upon the proprietor's rights and Possessions that have never been hitherto disputed, the Conse- quences of which must necessarily be Injurious to the settlements of those parts of the Country, and very much disturb our friends, the Indians in that neighbourhood, therefore, some speedy and Effectual Measures ought to be taken to prevent these Inconveniencies ; And Whereas, Collo ffrench had hitherto shewn a zeal Equal to his Capacity to serve the Proprietor in all such Cases ; It is therefore proposed that he should be appointed by commission from the Go- nernr., Ranger & Keeper of the marches of this Province, as well as of the Lower Counties, on such terms as he and the Commissioners can agree, with full Power to apprehend and bring before the Gover- nour all such Invaders, in order to be proceeded against according to Law.
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It is also further resolved, That magistrates shall be appointed in the said Parts as soon as the names of the most ffitt persons residing there can be had.
Ordered, that a Commission to the sd. Collo. ffrench for the pur- poses aforesd., be forthwith prepared by the Secretary ; and then the Council adjourned.
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At a Council at Philadelphia, ye 21st ffebry., 1717. PRESENT :
The Honble WILLIAM KEITH, Esqr., Lievt. Govr. Richard Hill, James Logan,
Jonath. Dickinson, Robert Assheton,
An act for Laying a Duty upon Sundry Liquors Retailed in this Province : An act for the better Encouraging the Trade of this Pro- vince ; An act for Laying a Duty on Wine, Rum, Brandy, Spirits, Cyder, Hopps, and Flax, Imported into this Province; An act for continuing a Duty on Negroes brought into this Province ; An act for Raising a Duty upon Tonnage of Ships and Vessels; An act Concerning ffeme sole Traders were read at the Board, and several amendments proposed ; then the Council adjourned till to-morrow morning.
At a Council at Philadia., ye 22d ffebry., Aº 1717. PRESENT :
The Honble WILLIAM KEITH, Esgr., Leivt. Govr. Richard Hill, Anthony Palmer,
Isaac Norris, Robert Assheton,
Samuel Preston, James Logan, Sec'ry.
Jonathan Dickinson.
Forasmuch as John Collison, Hance Dollar, John Rennalds, Ben- jamin Hutchins, and John Bell, just arrived in this Colony in the Sloop Williams Endeavour, Richard Taylor, master, have Ap- peared voluntarily before the Governour at this Board, and as by their particular Examinacons, have acknowledged their having been Lately guilty of Piracy, but unanimously asserting that their Be- haviour is within the Limits of his majesties late Gracious Pardon, Which accordingly They do Claim ; It is thereupon the Opinion of the Governour and this Board, that they be not apprehended or Prosecuted for the Piracys Which they have now acknowledged ; But that they may be Dismist until it Can be made appear by some Evidence, that their Condition and Circumstances are not Compre- hended within the terms of his Majesties Proclamacon for pardoning such Offences.
An act for the more effectual raising County Levys, was read, & a Debate arising abt. the passing of the Bill as it now stands, the Go- vernr. desired that such gentlemen at the board who had any substan- tial objections agt. the passing of this Bill, might either now enter their dissent with their reason on the minutes, or afterwards to extend their reasons as they think fitt, & if the Governr. shall happen to ffind him- self under any necessity of passing this or any other Bill, contrary to the majority of opinions at this Board. He declared, that in such case he wou'd likewise insert his reasons for so doing in the minutes of Council.
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PROVINCIAL COUNCIL.
POST MERIDIEM.
PRESENT :
The Honble WILLIAM KEITH, Esqr., Lieut. Govr. Richard Hill,
Isaac Norris,
Anthony Palmer, Robert Assheton,
Samll. Preston,
James Logan, Secry.
Jonathan Dickinson.
The Governour having Received two more Ingrossed Bills from the Assembly, vizt : an act for building Work houses and houses of Correction in each County in this province ; also an act for Estab- lishing new fferrys over Delaware River, from Philadelphia to West Jersey ; it was moved that they should be read, for the members of Council to observe upon them, & speak to them as have been done to other Ingrost Bills, for that the House of Assembly now Expected the Governour to send for them, in order to pass such Bills as had already been subjected to the Governours amendments, and were finisht by the House.
Several members stood up, & after having declared their Dissatis- facon that so short a time was given for them to offer such amend- ments as they Conceived were necessary to several Bills of Impor- tance, they Desired Leave to Withdraw, least their presence, if such bill should be Past without further amendments, might be under- stood to Carry their assent along with it.
The Governour then put the Question remain or Withdraw.
Remained.
Withdrew. Richard Hill,
Samuel Preston,
Anthony Palmer,
Isaac Norris,
Robert Assheton,
Jona. Dickinson,
James Logan, Secry.
Then the Governour sent Mr. Assheton with a message to the House that he expected their attendance with their Speaker Imme- diately.
The House attended accordingly, and the Speaker Presented several Bills to the Governr., & in the name of the House Desired that they might be passed into Laws.
The Governour Looking upon the Bills & observing that they bad not been signed by the Speaker as usual, Desired that the Bills might be Compleated by the House & signed by the Speaker before they were presented in form to him.
Then the Speaker signed each of the Bills by order of the House, & presented them to the Governour, who Read each title by itself, & so past them into Laws, and they were as follows, vizt :
At a Council at Philadelphia, the 8th Day of May 1818. PRESENT :
The Honourable WM. KEITH, Esqr., Lieut. Governour. David Loyd, Chief Justice.
Samuel Preston,
Robert Assehton,
Jonathan Dickinson, John ffrench,
Anthony Palmer,
James Logan.
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MINUTES OF THE
The Governour acquainted the Board with the occasion of their Being Called, in these Words, vizt. : GENTLEMEN :
The Justice of this Governmt. having been in some measure Re- trieved & vindicated by the Late Court of Oyer, & solemn Tryal at Chester, where two Criminals Convicted of murder, do Lie under Sentence of Death, to be Executed the ninth Instant.
And since by the Royal Charter the proprietor or his Lievtenant here may Grant Repreives in Cases of murder until his Majesties pleasure is known ; I Desire to know what you'l advise me to Do on this occasion.
I for my part Gentlemen, am fully satisfied from the Judical pro- ceedings at the sd. Court, where I was myself present, that these persons not only had a most favourable & ffair Trayal, according to the Course of the Common Law of England & acts of Assembly, which are in force here, & not Inconsistent with the sd. Common Law; but also do in my Conscience think that the Proofs were so Pregnant, & the Crime so Black, as most Justly did Infer the Punish- ment of Death to be Inflicted on the Guilty persons.
Wherefore, unless some good Reasons are offered at this Board, for Repreiving either one or Both of the sd. condemned persons, I Cannot otherwise be Induced to Withstand or Delay the Execucon of that sentance, which the Law has pronounced.
There was at the same time Presented to the Board a Peticon to the Govr. from the Criminals accompanied with an appeal to the King, both in these words, vizt. :
The honble William Keith, Esqr., Lievt. Governr. of the Province of Pensilvania.
The Humble Peticon of Hugh Pugh, Milwright, & Lazarus Tho- mas, Labourer.
Sheweth :
That whereas your Peticoners now Lie under Sentence of Death, for the murder of one Jonathan Hayes, (altbo' God is their witness they never had the Least design or Intention of Killing,) and the day of their Execucon, they are Inform'd, being appointed to be on ffryday next ; now forasmuch as your peticoners humbly conceived they have not been tryed according to Law, most of their Tryors, &c. being persons on their affirmacons, your peticoners, for this & other weighty reasons they have to offer, do with all submission Insist upon an appeal to the King, as their undoubted Right not only by the Constitucon of Great Brittain, but also of this province, and Do here- by appeal to his Majesty accordingly, Humbly beseeching your Honr. to cause the Execucon of the sd. sentence to be stay'd by Granting them a Repreive, until his Majestys Pleasure be known therein.
And your petitioners as in duty Bound shall ever Pray, &c. HUGH PUGH, LAZARUS THOMAS.
To his most Excellent Majesty George, by the Grace of God, of Great Britain, ffrance and Ireland, Defender of the ffaith & King.
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PROVINCIAL COUNCIL.
The Peticon of Hugh Pugh, of Chester, in the province of pensil- vanai, Milwright, & Lazarus Thomas, of the same place, Labourer. Humbly Sheweth :
That Whereas his Late Majesty King Charles the Second, by his Letters Patents, bearing date at Westminster, the fourth of March, in the twenty third year of his reign, did Grant unto William penn, Esqr., the Proprietorship & Government of the province of pensil- vania ; did Impower the sd. William penn, by Judges by him Dele- gated to award Process, hold pleas, & Determine in all the Courts & Tribunals of the sd. Province, all accons., suits & Causes whatsoever, as well Criminal as Civil, but at the same time did save & reserve to himself, his heirs & Successors, the Receiving, having & Determining the appeal & appeals of all or any Person or persons of or belonging to the sd. province, as touching any Judgment to be there made or given; Your peticoners therefore Lying under Sentence of Death within the sd. province, as appears by the Record hereunto annexed, do appeal unto your most Excellent Majesty & for reasons of their their appeal shew unto your Majesty the reasons following :
Ist. Because Seventeen of the Grand Inquest who found the Bill of Indictment Exhibited agt. them, & Eight of the petty Jury who found them Guilty, were Quakers, or Reputed Quakers, & were Qualified no otherwise than by an affirmacon or Declaration contrary to a statute made in the ffirst year of your Maties Reign.
2ndly. Because the Act of Assembly of this Province by which Judges, Jury & Witnesses were pretended to be Qualified, was made & past the Twenty-Eighth Day of May, In the ffirst year of your Majestie's Reign, which was after the sd. murder was supposed to be Committed ; and after another act of Assembly of the same nature was Repealed by her Late Majesty, Queen Anne.
3dly. Because the sd. act of Assembly is not Consonant to Rea- son, but Repugnant & Contrary to the Laws, Statutes & Rights of your Majestie's Kingdom.
For these & other manifest Errors in the Record aforesaid, your Peticoners most humbly appeal to your most Sacred Majesty from the sd. Judgment, not Doubting but when the Record & Process thereupon have been Inspected, your Majesty will Cause to be done what of Right, & according to the Law & Customs of your Majestie's Kingdom of Great Britain, oughto be Done.
Hereupon one member delivered his Opinion to this Effect, That he did not Pretend to mollify or Lessen the notorious Crime of murder Committed by these Criminals, whom he thought in his Conscience justly deserved to Die, & in behalf of whom he had there- fore nothing to move ; but nevertheless he judged it would be Pru- dent to Grant these Condemned persons a Reprieve at this time, & that it was solely & purely his Great Regard to the Security of the Government here, which Induced him to be of this Opinion, to which one other member only adhered.
It was answered by the Governour, the Chief Justice, & all the other members present. Vizt : That it was notorious how these very persons now under sentence of Death, had for several years appeared
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at the head of a Lawless Gang of Loose ffellows, Common Disturbers of the public peace.
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That the horrid Crime for which they were now Condemned, had been Committed above three years agoe, And that through the indo- lence of a fformer administration, which unhappily neglected to bring the Criminals sooner to Justice, they were so hardened & became so audacious as still to continue in their publick Rioting, Caballing & ffighting, to the insupportable burthen, evill Example & manifest Prejudice of the whole people of this Province, & that even they spared not Impudently to Boast that they well knew it was not in the power of the Government to try any Capital Crime according to the Common & Statute Laws ef England, which they would claim as their right. That nevertheless they had had a most ffavorable & ffair Tryal, wherein the greatest Care Immaginable was taken to have the proceedings Exactly Conformable to the Laws of England, & those of this Province being perfectly consistent with each other.
That the Crown had granted unto the proprietor & his Lievtenants here, as full power of Governmt. has had been given any where else in America; and that if we neglected to make use of them in a Case of such Importance to the Quiet & future safety of all the Inhabi- tants of the Province, as this plainly appeared to be from the full Evidence of above twenty Witnesses, We wou'd not only thereby Expose ourselves in the opinion of all good men who duly considered the duty of those intrusted with such Powers of Government, but also justly become Obnoxious to the Censure & blame of our Supe- riours ; That even the peticons offered by the prisoners contain a full acknowledgement on their parts of the fact, for which they stand Condemned, and that though a right of appeal, when well founded, & offered according to the necessary form & Direction of the Law, doth lie in all the Governments of America immediately under the Crown, as well as in this Province; yet it was never known, & indeed would be absurd to suppose that a Condemned person could, without any Regard to ffact or Circumstances, make use of that Right how & when he pleased, in order to Extort a Reprieve from the Ex- ecucon of that sentence which the Law had justly pronounced agst. him.
These Peticons therefore being both out of time & most Impro- perly offered in this Place, The Governour is Clearly of Opinion with the Chief Justice & other members, (saving to such of the Board as are of a different sentiment, the Priviledge of Extending their Opinion & the Reason of it upon the minutes of Council.) That the Constitucon of this Province, as it is Established by Law, must be maintained & supported, & that it is by no means Expedient or pru- dent in this Case for the Governr. to Interpose, or any way Interrupt the Execucon of that sentance, which the Law has so solemnly Pro- nounced agst. the Criminals.
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PROVINCIAL COUNCIL.
' At a Council held at Philada., ye 27th May, 1718.
PRESENT :
The Honble WILLIAM KEITH, Esqr., Lievt. Govr.
William Trent,
James Logan,
Samuel Preston,
Isaac Norris,
Robert Assheton, John ffrench.
An act for the advancement of Justice & more Certain adminis- tracon thereof ; An act Impowering the Justices to settle the Prices of Liquors in Publick houses, & Provender for Horses in Stables; An act for Continuing the ferry from Bristol, in the County of Bucks, to Burlington, in the Western Division of the province of New Jersey; An act for Establishing a fferry over Delaware at the ffalls, as also an address from the Governr. & Assembly to the King, were Read at the Board, & a Committee of the Council were appointed to make such amendments to the sd. Bills & address as they thought proper, & Lay them before the Board at their next sitting.
Road from Co- ) A Peticon of several of the Inhabitants of & near nestogo to T. [ Conestogoe, setting forth the Great necessity of a Moores & Bran- ( Road to be laid out from Conestogoe to Thomas dywine. Moores & Brandywine, was Read, & the Board having taken the sd. peticon into Consideracon, appointed Isaac Taylor, John Taylor, John Cartledge, Ezekeil Harland, Thomas Moore, Joseph Cloud & William Marsh, to Lay out the sd. Road, & make Report thereof at this Board, in order to be Confirm'd.
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