USA > Pennsylvania > Colonial records of Pennsylvania, Vol. IV > Part 4
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"The Subject matter of this Bill having heretofore been fully debated by the Petitioners for & against the Racks, in the hearing of divers of the Members of this Assembly, it was therefore con- ceived no new Information was likely to be had therein, & that were it otherwise, those who Petition the Governor had no reason to ex- pect a hearing from the House unless they had made application to that End.
"The House had no Intention of depriving the Proprietors of any Right they may have to the Soil & Water of Rivers within this Province, nor have they any doubt that the Paternal Care of the Proprietor & Founder of this Colony extended to all the People, but his being against the erecting of all Wears, &cª is not evident to them from either of the Acts referred to, but rather the contrary ; the Acts of 1683 & 1700 both relate to such Wears, &ca. only as extend the whole Breadth of any Creek or River; the Act of 1730 to such Wears &ca. by which Navigation was obstructed ; but neither of them prohibit any such Racks which may be placed at a time & in a manner not attended with those Inconveniences.
"Therefore on Consideration had of the Premisses with the seve- ral Facts set forth in the Petitions hercwith laid before the Governor (great part of which the House believes to be true), they hope it will not appear inconsistent with the Dignity of Government to give the Petitioners the Relief they seek, by passing the Bill for amending an Act, against which so many complaints have been made.
"By Order of the House
"J: GROWDON, Cler Coun."
"From the Representatives of the Freemen of the Province of
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Pennsylvania in General Assembly met To the Governor on the Subject matter of the Bill Entituled
"' A Supplement to the Law for Erecting of Pounds, &ca.'
"The House are of Opinion, that by two Acts passed in the seventh & tenth years of the Reign of the late King George, the first Entituled ' An Act for Erecting & Maintains of Pounds,' the Second Entituled 'An Act to Improve the Breed of Horses, &ca.' both now in force, suff' Provision is made for Rangers, Waifs, & Strays, and that as the Bill now under Consideration is only to amend some Defects which appear in those Acts, without maks any altera- tion therein to the prejudice of the Proprietors, or any officers they may appoint, The House are therefore in hopes that the Governor, on perusal of those Acts, and Reconsidering the Supplementary Bill proposed, will be pleased to give his Assent thereto, without en- gaging them to enter into the Consideration of any further Law to those purposes, which to them appears altogether unnecessary.
"Signed by Order of the House, "J. GROWDON, Cler Coun."
The Amendments to the Supplementary Bills for laying out of highways & publick Roads were agreed to, but the House are of Opinion that the Laws relating to Overseers of the Highways, if duly executed, are sufficient ; Whereupon It is Recommended by the Board to such of their Number as are of the Magistracy, to take proper Care herein, & that they charge the Grand Jury's to make due Presentments, to the End the Laws may be put in Execution against such Overseers who shall be found remiss in their Duty.
Some of the Amendments proposed to the Bill for enjoyning sun- dry Officers to deposite the Records, &ca. in the Offices adjoyning to the State House were agreed to, but the House persists in retaining those parts of the Bill, which oblige the Register General to an At- tendance of 6 days in the Week, and make the fine of 10s. for the Neglect or Refusal of the Officer recoverable by the Testimony of one credible Witness.
The Bill for stablishing Courts of Equity was again read, but the Consideration thereof is, at the Governor's Desire, deferred till to- morrow forenoon, to which time the Council is adjourned.
At a Council held at Philadia., Febry 14th, 1735-6.
PRESENT :
The Honble PATRICK GORDON, Esqr., Lieut. Governor. James Logan, Ralph Assheton, 1 Samuel Preston, Clement Plumstead,
Samuel Hasell, Thomas Griffitts, Charles Read,
Esquires.
Thomas Laurence,
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The Minute of the preceeding Council being read & approved,- The two following Bills sent up from the House Entituled
AN ACT for ascertaining the manner for the future erecting of Ferries within this Province,
AN ACT for ascertaining the Rates of Ferriages to be taken at divers Ferries within this Province,
Were read, to both which several Amendments being proposed, the same are ordered to be drawn up.
The Consideration of the Bill for establishing Courts of Equity being adjourned to this forenoon, the Governor proposed that, pre- vious thereto, the Proceedings of the House on this Subject, & the Resolution passed by them, whereby the Conduct of the late Gov- ernor, of himself, and of those Gentlemen of this Board, who have assisted in holding a Court of Chancery or Equity since the year 1720 is openly arraign'd, & an Imputation thrown on them of having acted without proper Authority, or usurped an unlawfull one, should be duly considered, and some method be concerted for vindicating the Governor and Council from so unjust a Charge brought against them.
The Minutes of the present House on this Subject, and likewise several of those of the Assembly which met in October, 1719, at whose Request the then Governor was induced, with the assistance of the Council, to take upon him the Exercise of the Powers of a Chancellor, were read, & the Matter being fully spoke to, the Board came to the following unanimous Resolutions :
That the Resolve of the present House declaring " That the Court of Chancery as it is at present established is contrary to the Char- ter of Priviledges granted to the Freemen of this Province" is an unjust Charge on the present Governor, his Predecessor, & those Gentlemen who have composed, or do now compose, that Court, of having violated the Priviledges granted by the Proprietors Charter to the Freemen of this Province, tending to create groundless Jeal- ousies of the Governor & Council, & to foment Discontents amongst the Inhabitants.
That a Vindication of the Proceedings of the Governor & Council be prepared and published, setting the whole Matter touching the Establishment of the said Court in its true Light, in order to re- move those Impressions which otherwise may be entertained of the Conduct of this Board in relation thereto.
The Governor then moved the Board to consider & advise him. Whether it may be consistent with his Duty to the Proprietors, from whom he derives his Commission, & to the Crown, whose Ap- probation he is honoured with, that, contrary to the Practice which is generally known to obtain in all others of His Majesty's Colonies in America, where the Office of Chancellor is exercised, either by the Governors alone, or in Conjunction with others, chiefly those of
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His Majesty's Council, He should now consent to any Bill for ex- cluding himself, and the succeeding Governors of this Province, from presiding in the Court of Chancery or Equity ?
The Consideration of which Motion is deferred till the Bill for establishing Courts of Equity comes under advisement.
It was then moved & agreed to that, for the quicker Dispatch of those other Bills now before the Board, Mr. Logan, Mr. Plumsted, & Mr. Assheton, be a Committee to draw up the amendments pro- posed to some of them, & the Reasons of this Board for adhering to their former Objections against others, and to report the same on Monday next.
At a Council held in Philadia., Feb'ry 16th, 1735-6.
PRESENT :
The Honble PATRICK GORDON, Esqr., Lieut. Governor. James Logan, Ralph Assheton,
Samuel Preston,
Samuel Hasell,
Clement Plumsted,
Thomas Griffitts, .
Esquires. 1
Thomas Laurence.
The Minute of the preceeding Council being read & approved,
The Committee, to whom it was referred to draw up amendments to several of the Bills now lying before the Board, & Reasons for adhering to the Objections against others, reported this day the fol- lowing Messages & Amendments which were read in these Words:
"From the Governor in Council to the House of Representatives, in Reply to their Answer to his Message on the Subject matter of the Bill Entituled an Amendment of An Act the more effectually to prevent the erecting Wears & Damm's within the River Schuyl- kill.
" The Governor was in hopes what he had sent to the House on the Bill for Racks would have prevented their giving themselves any further Trouble about it, nor does he find any thing the House has since offered to have any such Weight with it, as to induce him to alter his Opinion ; The Proprietors have always shewn a Paternal Regard for the good of all the People, & the Governor has ever thought it his greatest Honour & Merit to act in all such things conformable to their Inclinations; & therefore that all further Debates on this Head may be ended, he will here briefly show that it is with a sincere View to that Care and Regard, that he cannot agree to the Bill for Amendments as it is called.
" The Soil & Water of all the Rivers & Creeks within the Pro- vince that are not granted away by the Proprietor or his Agents are undoubtedly his, & yet as far as ever the Governor could learn, the
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Proprietor never sought to make any advantage of them to himself, but as a common Father to consult the Good of the Whole.
" At those two several times the late Proprietor was in the Pro- vince, he passed two several Acts against Damms and Wears, as they might be injurious both to the Navigation & Fishery, of which all Persons from the Mouths to the Heads of the Rivers or Creeks ought equally to partake of the Benefit. That Damms were a direct Obstruction to all Navigation where they stood is certain, but Wears were equally prohibited with Damms; and it is well known, if the Governor is rightly informed, that Racks are a much greater Ob- struction to Navigation than Wears were, these being made of small sticks or some very slight Matter fastened to Stakes, but those are made of more substantial Materials, like Horse Racks, erected & kept up by large Stones carried into the River to support them; and tho' it is said in the proposed Bill, that one half of the River is to be kept open, yet were even this observed, the Obstruction of the other half must, in the Night time, or on sudden Turns of Points in the Day, be highly dangerous. But yet all this is not of equal weight with the following:
" It has pleased Divine Providence in a wonderfull manner to pro- vide for the support of the Inhabitants of the Earth who dwell on or near Rivers, by implanting such an Instinct in the Fish of the Sea, as that they shall at least once a year crow'd up even to the highest parts of such Rivers to lay their Spawn, on which their Breed & further Increase is said wholly to depend; and in all well regulated Governments, particularly in England, the utmost Care is taken for Preservation of the Fishery to prohibit whatever may pre- vent their Course, or Discourage them from their annual Visits & Returns. But the Method now proposed by the Bill, according to all Accounts we have of the Practice of those that follow the Fishing by Racks in Schuylkill, appears to be the most ruinous that could possibly be contrived ; For it is positively affirmed, this Practice is, for great Numbers of People mostly on Horseback, for a Mile or two or more, with large Bushes, Stakes, or other Instruments that may best answer the End, to beat the Water with great Noise, rake the Bottom of the River above the Racks, & to take all the Methods in their Power to force the Fish down into the Racks; and if this was the Practice heretofore, now when half the River is to be left open, it will follow of course that others in & about that vacant Part must use equal or greater Industry to prevent their getting that way by the Racks, by which means those that can escape must be more frightned and disturbed, the Spawn by the treading of Horses or other Feet, & by raking with Bushes & Trees must be destroyed, & while this is practised in half a score places in that River, they must obstinately shut their Eyes who cannot see, that, as it has happened in other places from the like Methods, the River will in time be entirely deserted by the Fish, and all the Inhabitants, in
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all parts of the River, deprived of that great Benefit intended for Mankind by the Creator.
" And further there have such accounts been yearly given, when any Racks have either publickly or otherwise been erected, of the tumultuous Meetings, riotous Behaviour, Quarrels, Contentions, & even Outrages amongst the young People and others who assemble as to a Merry-making or a publick Diversion, at the time of Fishing by Racks, which are so unseemly Returns for the Benefit conferred on them, that this Consideration alone ought to weigh with all sober and well disposed persons, & dissuade them from encouraging any thing that is generally attended with such Consequences, as are a Reproach to any Government, whose Business it is to preserve Peace, Tranquility, & good Order.
" To allow People to make any Racks with Limitation that they shall not be carried above such a Length into the River can prove, as to this Limitation, no other than an Amusement : When People are justified in making some kind of Racks, & they meet for their own Interest, & none are present, or at least none with sufficient Power to interpose, it is not to be imagined that they will keep within any Rules or Limits whatsoever.
" Upon the whole, nothing can be more clear to any who will im- partially consider the Nature of what is proposed, without any View or Interest, but solely to Right and good Order, than that such Methods of Fishing, were they indulged for any time, for the sake of only a present Profit, as it must necessarily, even for that time, deprive those on the upper parts of the River of the advantages to which they have an equal Right with any other that live on it, so it cannot in all humane Probability fail" of depriving all the Inhabi- tants & our Posterity of every part of the Benefit, by entirely ban- ishing the Fish from every River where these Methods are put in practice.
"It is with Reluctance the Governor finds himself obliged to withstand the Applications that have been made, but as they cannot be conceded to without much greater Disadvantages, he finds him- self obliged in Duty & Conscience to refuse passing the Bill; and he hopes this Refusal may in a little time be found much less to the Disadvantage of those who sue for the Bill than they may now im- agine. The Bottom of Schuylkill in the lower parts of the River is said to be stony & unfit for Nets, but the Governor conceives, if the Nets be made somewhat deeper, & in the proper Places fixed & kept every where to the Bottom, while they are buoyed up at Top, a com- petent Number of Fish may be taken, and in time the People's Skill will improve & render it more familiar & easy, & by this Means the Blessing may be continued to all the Inhabitants & their Posterity."
"From the Governor in Council to the House of Representa- tives a further Message on the Subject matter of the Bill En- tituled A Supplement to the Law for erecting Pounds &ca.
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"The Governor by his former Message on this Bill observed, that a proper Regulation for Rangers & Strays was wanted, no other being in force in this Province besides that of the 10th of the late King, which is conceived in so indecent & indigested a manner in the two last Paragraph's but one, that it cannot be to the Honour of any Government to have it numbred amongst its Laws. But as the present Bill may be of Service to the Country, the Governor is willing to assent to it, provided that the Words referring to that act be left out & only the word Rangers retained.
" Amendments proposed by the Governor in Council to the Bill Entituled An act for ascertaining the Manner for the future erecting of Ferries within this Province.
"Insert this Clause ' And that between the Establishment of such Ferry in the manner aforesaid, & such time as the Legislature can take into Consideration the Rates proper to be sett for the same, It shall and may be lawful for the Person or Persons so nominated or appointed for keeping the said Ferry, to take & receive such Rates as are by Law allowed to be taken at the nearest Ferry to the same in this Province over the same River or Creeks.'
" Leave out from the Word Law the three last Lines in this Page, & the first Word in the next, and in Lieu thereof say than such Rates & allowances as now are or hereafter shall be from time to time sett & established by the Legislature of this Province.
" The Reason for this last amendment is this, That by the Clause, as it stands in the Bill, it may be construed, that when the time for which the Rates are sett is expired, no Ferriage at all must be taken, and consequently no attendance will be given, till a new Regulation is made by the Legislature. Now it is possible that several accidents may happen to render the obtaining of such a Regulation at that time impracticable, such as the Death of a Gov- ernor during the time of a Session, or on divers other Occurrences that may intervene."
All which being agreed to by the Board were ordered to be signed by the Secretary and sent down to the House with the Bills.
Then were read the two following bills :
AN Acr for vesting the State house & other public Buildings with the Lott of Land whereon the same are erected in Trustees for the Use of this Province.
AN ACT for regulating Retailers of Liquors near the Iron works.
Both which were agreed to without amendment, & ordered to be returned.
The Members of Council having met by themselves, & on mature & deliberate Consideration approved of a Report drawn up by Mr. Logan, touching the Establishment of the Court of Chancery in this Province, the same was now laid before the Governor, & being
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read, His Honour expressed his very great Satisfaction in seeing the whole matter so. truly & justly represented, & thanked the Gentle- men of the Council for the Trouble they had taken on this Occasion to do justice to him as well as themselves, Which Report follows in these Words :
"To the Honourable PATRICK GORDON, Esqr., Lieutenant Governor of the Province of Pennsylvania, &ca.
"In compliance with the Governors Desire, that we the Members of Council for this Province should take into our Consideration a certain Resolve of the present House of Representatives, which is found printed in their Votes of the 27th of last Month, and is read in these words :
"Resolved upon the Question,
"That the Court of Chancery, as it is at present established, is contrary to the Charter of Priviledges granted to the Freemen of this Province.
" For that the Governor conceives it is intended by the said Resolve, and so he finds it is understood to be the Meaning of the House, That the Court of Chancery which was established in the Governor and Council in the year 1720, and has to this time so continued, there being no other Court here that bears that Name, is contrary to, and consequently, as often as it is held, a Violation of the Privileges granted by our late Honourable Proprietor the first Founder of this Province, to the Freemen of the same, from whence it follows, that in their Sense, not only the Governors, but all the Members of this Board, who, in pursuance of the first Estab- lishment of the said Court, have assisted, or do assist, in holding the same, are in every such act guilty of a Violation of the Charter, and as this heavy charge, by being published to the whole Country must necessarily engage all those who by the authority of that Resolve of their Representatives may be led into the same Opinion, to consider the Governor & Council as Violators of their Rights, it must therefore nearly concern us all very seriously to weigh & examine what Foundation there is for such a Charge; and if none in Truth & Reality can be found, as he hopes there will not, it will be incumbent on us to justify both the Governor & ourselves to the World from so harsh an Imputation.
" Accordingly, may it please the Governor, we have very seri- ously considered the said Resolve, and say, That it gives us a real Grief, and very deeply affects us, to find that our Representatives (on whose tender Regard and Concern for the Honour Reputation & Tranquility of the whole Government, & for the Peace & Security of all its Inhabitants, there ought always to be a very great Depen- dance) should now at this time, when there was not to our Know- ledge the least Occasion given for it, strike so unexpected, as well as unmerited, a Blow at so very considerable a Part of the Govern-
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MINUTES OF THE
ment, as all Men must own the Governor to be, if there were no Regard or Consideration to be had for us, who being as deeply interested by our Families & Estates in the Welfare of the Publick as any others, and from some Opinion (tho' perhaps undeserved) of our Qualifications, have had the Burthen thrown on us of assisting the Governor in important affairs with our advice, to the loss of our own Time, and without any Consideration or advantage to ourselves whatsoever.
"But waving all Complaints, and putting up with what Degree of Regard those Gentlemen are pleased to extend to us, we shall proceed to consider the matter itself; In order to which we first observe, that the late King in Council having in the year 1719 repealed the Law by which our Courts were then held, Colonel Keith, afterwards Sr. William Keith (who was then our Governor, to prevent the countrys suffering as it had done a very few years before, by having for many successive Terms no Courts at all except the City Quarter Sessions held in the Province), thought fit (by vir- tue.of the Powers granted by the Royal Charter to the Proprietor by himself or his Lieutenants or Deputies to establish all Courts whatsoever necessary for the administration of Justice) immediately & without loss of time to erect & appoint by his Commsssions all those for Law, both Superior and Inferior. But for several Months after these were so erected, there being no Court of Equity of any kind in the Government, and yet without some such Court all Gov- ernments must be defective, he was so cautious, as it appears, in this point, that he made no Step therein till he had first advised with the Assembly at their Meeting in May following in 1720. It appears also that he took the best Advice he could procure of Per- sons skill'd in the Law, & particularly (as he ought of course) that of our then Attorney General, Andw. Hamilton, Esq., who was esteemed & allowed to be as able in that Profession as any on the Continent of America, and universally it appears to have been the Opinion at that time, That the Proprietor & his Lieutenants being then as at first vested, with the sole Powers of erecting Courts, and as it was the Practice, as far as could be known, of every one of the British Colonies, both Proprietary Governments, & others for the Governors, some with, and others without, the Assistance of the Council, to hold Courts of Equity, the same might as properly be put in Practice here, and accordingly the Assembly then sitting · passed the Resolve the 4th Day of May 1720, as it is now printed in the present Assembly's Minutes (viz .: )
" Resolved, That considering the present Circumstances of this Province, this House is of Opinion, that for the present the Gover- nor be desired to open & hold a Court of Equity for this Province, with the assistance of such of his Council, as he shall think fitt, except such as have heard the Cause in any inferior Court."
" It further appears, that the Governor was so far from hurrying
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on the Establishmt. of such a Court, that he laid not this Resolve before the Council till more than a Month after, and longer time being taken to deliberate on it as an Affair of Importance, no fur- ther Steps were made therein, till a few Days before the meeting of the same Assembly in August, when a Council was called on the sixth of that Month, where the Speaker of the House with three other Members were present, and in this Council the preceeding Resolve is said to have been an unanimous Resolution of the House, and a Proclamation being agreed on for establishing a Court of Chancery the same was laid before the House and read there the sixteenth of the said Month, as it appears by their Minutes, whose Address carried up by Isaac Norris and Clement Plumsted Esqrs., on their breaking up two Days afterwards, further shews their ap- probation of the several Steps that had been made herein ; So that these Premises considered, there appears no room for the least Shadow of Blame to be thrown either on the Governor at that time, or the Council in this Proceeding, for the Power was in the Gover- nor, the ablest & all the Lawyers advised to it, the Assembly desired it, and it was the Practice & still is, as for as we know, of all other British Governments in America.
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