Colonial records of Pennsylvania, Vol. IV, Part 41

Author:
Publication date: 1838
Publisher: [Harrisburg] : By the State
Number of Pages: 814

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The Assembly sent up this Day, by two of their Members, a Bill entitled An Act imposing a Duty on Persons convicted of heinous Crimes, brought into this Province and not warranted by

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the Laws of Great Britain, and to prevent poor and impotent Per- sons being imported into the Province of Pennsylvania, which was read.

At a Council held at Philada, January 25th, 1739.

PRESENT :

The Honourable GEORGE THOMAS, Esqr., Lieut. Governor. Clement Plumsted, Thomas Griffitts, Esqrs.

Ralph Assheton,

The Governor, after well considering the Bill for better raising Money on the Inhabitants of the City of Philadelphia, &ca., laid be- fore the Board a Message he had prepared, containing Reasons why he could not pass the Bill, which being approved of, the Secretary was Ordered to carry it to the Assembly, vizt:

" His Honour, the Governor, to the Gentlemen of the Assembly. " Gentlemen :

"Upon perusal of the Charter by which Philadelphia was erected into a City, and the Mayor and Commonalty created a Body Corpo- rate and Politick, I observe the Streets are to continue as they were then laid out and regulated, and that the End of each Street ex- tending into the River Delaware is to be and continue free for the use and Service of the Inhabitants of the said City, &ca-, who may improve the same for the best advantage of the said City, and build wharfes so far out into the River as the Mayor, Alderman, and Common Council, &ca-, shall see meet.

" The same Mayor and Commonalty have a Power and Capacity to purchase Lands, &ca.

" The Mayor and Alderman are Justices of the Peace and Oyer and Terminer ; And upon their own View, or after a legal Proce- dure, &ca., may cause all Nusances & Incroachments upon the Streets to be removed, and punish the Parties offending as the Law di- rects.

" The same Charter grants likewise to the Mayor and Commonalty Power to build a Prison and Courthouse when they shall see Occa- sion, and authority to make such good and wholesome Ordinances (not repugnant to the Laws of England and of this Province) as to them shall seem necessary and convenient for the Government of the said City, and the same again to revoke at their Pleasure.

" And all these they claim as Rights and Franchises to them and. their Successors for ever, and say they ought not to be divested of them, or any of them, otherwise than by a Tryal at Law.

" It appears that the Mayor and Commonalty have by virtue of their Charter made divers Ordinances for regulating the Streets, VOL. IV .- 25.

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Wharfes, Pavements, Buildings, &ca., within the said City, and that the same have been carried into Execution, very much to the Con- venience of the Inhabitants and others, and to the Reputation of the City and Country.

" And by the Bill before me the whole Superintendency or Reg- ulation of all the Streets, Wharfes, Houses, Landings, Bridges, Docks, &ca., is put into the hands of Commissionersand Assessors, to be elected annually by the People. But by the Bill they have no Power to make Ordinances, Rules, or Orders for the Government and Guidance of themselves, or those who are to succeed them in those Regulations, nor any Power to compel Obedience to such Rules if made, or any Obligations upon the succeeding Assessors and Commissioners to finish what their Predecessors had begun. And whether the Mayor and Commonalty will think fit to continue their Ordinances now in being, when the Power of putting them in Execution is taken out of their hands, and put into the hands of those who may or may not observe them at their Pleasure, is not certainly known.

" Therefore was the Bill in all other Respects free from Objec- tions, These Defects would, in my Opinion, render it either wholly Impracticable, or introduce great Confusion both in publick Works of the City and among the Inhabitants.

" But it is clear to me that the Bill takes away from the Mayor and Commonalty of Philadelphia not only the whole Care and Reg- ulation of the Streets, Wharfes, Houses, Landings, Bridges, Docks, &ca., which they claim as their Inheritance for the use of the In- habitants of the City, but likewise a large and valuable Landing of One hundred feet wide, on the North side of the Draw-Bridge, which by a Deed now before me appears was purchased by the Mayor and Commonalty out of their own Stock, And which they hold for their own Use as a Body Corporate.

" Therefore I cannot give my assent to this Bill.

"GEORGE THOMAS.

" Philada., January 25th, 1739.

" By His Honour's Command.

" Thomas Lawrie, Secretary."

The Bill intitled an Act imposing a Duty on Persons convicted of henious Crimes, &ca., was read Paragraph by Paragraph, and some Observations and Amendments being made thereto, were sent down to the Assembly.

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At a Council held at Philada., February 23th, 1739.

PRESENT :

The Honourable GEORGE THOMAS, Esqr., Lieutenant Gov- ernor.

Samuel Preston,

Ralph Assheton, -

Anthony Palmer,

Samuel Hasell,

Clement Plumsted,

Thomas Griffitts,

Esquires.

Thomas Laurence,

The Minutes of the two preceeding Councils were read and ap- proved of.

The Governor laid before the Board two Messages he had received from the Assembly since the last meeting; which were ordered to be entered, and are as follows, Viz* :

" A Message to the Governor from the House of Representatives. " May it please the Governor:

" We have so little Delight in Controversy, especially of this kind, that it would have been much more agreeable to us could we have thought ourselves under no Necessity of giving this additional Trouble; Though we cannot but account ourselves very unhappy in having the Reasons and Matters in our last Message so misun- derstood that any Acrimony inconsistent with our Principles should be discovered where none was intended, and where we have good Reason to hope, before whomsoever it may be laid, if duly considered, none will be found. But as some Conclusions have been drawn which we are of Opinion are not really deducible from any Words contain'd in that Message, we beg Leave to consider such of them as we apprehend more immediately relate to the Duty we owe to the People we represent.

"It is now near sixty years since this Province was settled under our first Proprietor ; and Men of the same religious Perswasions with those professed by the Majority of this Assembly, have generally been as much concerned in the Magistracy and Assembly as at present, and no great Inconveniences that we know of have arisen from thence. We are now become a numerous People of different. religious Perswasions, many of whom are well armed and principled to defend their Possessions against an Enemy, and as such it be- came us to leave all Men to act freely in this respect, as from the Dictates of their own Hearts they should think was consistent with their Duty to God and themselves; And we cannot apprehend that when they are thus left to their Liberty, the Country will be as much subject to become the prey of an Invader, let the Principles of part of the Legislature be what they may, as when the Inhabi- tants are put under an absolute Restraint of providing themselves with necessary Means of Defence. The Discription we gave of the Situation of the Province, without any Expectation of having con-

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ferred an Obligation on the Governor, was intended to demonstrate the Improbability and Hazard of an Attempt from Canada in case of a War with France; and from any Information we have hitherto gained, we discover no reason to change our Sentiments. Ex- perience confirms this Truth in our Opinion; for other Parts of the Continent have been actually attacked, and suffered In- jurys by the French and Indians, which we of this Province have'hitherto espaced, And therefore as it cannot be supposed they have a greater Regard for us than our Neighbours, the Difficulty and Danger seem to us to be the Causes which have deterr'd them from it, unless we may be allowed to think Providence in favour to us has diverted their thoughts from such an Enterprise. How- ever, we shall avoid all such Remarks as may lead us into any fruit- less Disputes with the Governor, tho' they have arisen and hitherto been carried on much against our Inclination. But that part of our Message which he is pleased to apply to himself, we hope can- not be construed in any Sense disadvantageous to the Governor ; and the Misapprehensions seems chiefly to arise from our using the Title of that Gentleman who appropriated to his own use the Money raised in the Time of his Predecessor for the Service of the Queen, which could scarcely be avoided in narrating a plain Matter of Fact pointed out to us to explain ; which Fact is undoubtedly true : and we are surprized that our saying 'this wrong application of the Money raised for the Queen's use could be no great Encouragement for future Assembly's to follow the Example,' should be extended to affect our Loyalty and Obedience to the King and his illustrious House. But our steady and unshaken Loyalty to King George and his Predecessors, rightful Kings of Great Britain, and our peace- able Deportment under their Government, have rendred us (as a People) the Objects of the Care and Compassion of our Mother Country. And we who under the Influence and Protection of the present King enjoy at this Distance the Blessings of a free People, are engaged from Principle, Gratitude, and Interest, on all Occasions to demean ourselves as 'becomes loyal Subjects and lovers of our Religion & Liberties.' Such is Our's, and such has always been the Demeanor of the People called Quakers, which, tho' it may not have merited, has enjoyed the Protection of the Crown with the rest of our Fellow Subjects. And as this is not the first Instance of our Assembly's declining (induced as we are by their Principles and the Liberty of Conscience granted to us by our Laws and Charter), to enact any Law which should oblige the Inhabitants of this Province to bear Arms, with agree with the Governor in de- siring our Conduct may be attended with no ill Effects, but hope and heartily wish it may have the same good Success as heretofore, both on the Minds and Fortunes of the People of this Province.

"Signed by Order of the House. "JOHN KINSEY, Speaker.

"Philad., the 26th of the 11th Month, 1739."

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To the Governor from the House of Representatives.

" May it please the Governor-

" The Manner of returning the Bill entitled An Act for the bet- ter raising of Money on the Inhabitants of Philadelphia, &ca., with the Reasons the Governor has been pleased to assign for not passing the same, we are humbly of Opinion very nearly affects the Rights, Privileges, and Freedom of this Assembly. The Governor may, we presume, deny his assent to any Bill he may judge improper to pass without assigning any Reason, altho' this is seldom ever done. But whenever the Governor condescends to assign Reasons to the House against such Bill it is to give them an Opportunity, by Message or Conference, to remove the Objections so made. That to introduce a contrary Practice, and to form any decisive Judgment on any Bill on a private Hearing or otherwise, would not only deprive the Assembly of the Advantages before mentioned, but has a ten- dency to Destroy that Intercourse & Harmony necessary to be pre- served in the several parts of Legislature. We, therefore, earnestly request of the Governor that the Methods heretofore usual may be continued ; and that he will be pleased to hear what the House may be able to offer in respect to the first-mentioned Bill, before any ab- solute Negative be given to the same.

"Signed by Order of the House. " JOHN KINSEY, Speaker. " Philada., 11th Mon. 26, 1739."

Then the Governor addressing himself to the Members present, told them That as the freedom that had been taken by Israel Pem- berton, Jun", with his Character in a Conversation with Mr. Alex- ander Graydon, Mr. Emerson, and others, was the publick talk of the Town, and, therefore, he supposed they could not be Strangers to it; and as he thought it had a Tendency to break the Peace of the Government, and to destroy that Confidence and Harmony which ought to be carefully preserved between the Governor and the Peo- ple, he had called them to inform them after the mildest Endeavors used by him in vain to perswade the said Pemberton to make such acknowledgements as might prevent the before-mentioned Inconve- niences, he now thought himself obliged to make a public Enqury into it, and had, therefore, sent for Mr. Alexander Graydon to re- late the whole Matter before this Board, who being called in Exprest his concern at being oblig'd to give Publick Evidence of a Conver- sation in his own House. But as he thought the Governor's Con- duct had deserved no such Censure, he would relate as faithfully as his Memory would allow him the most material Parts of it viz": That after some talk on the Dispute between the Governor and As- sembly on the subject of Defence, Israel Pemberton, Jun"-, did say That they knew what the Governor was before he came over, and what they had to expect from him. That it was his Design or En-

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deavour to overturn the Constitution and reduce this to a King's Government, and that they would prove it on him. That the Governor carried on the Debate with the Assembly as if he and Jenkins and a few more were chatting it over a Table; and that upon his (Graydon's) saying, That as probably that Dispute would be laid before our Supe- riours, they would best judge of the Governor's Behaviour in that Matter. Israel Pemberton replied, That he did not doubt but the Governor would make use of all his Friends to set the Assembly in the Wrong, and that he would make an unjust Representation of that Matter. The Governor then desired Mr. Graydon to relate what the said Israel Pemberton said to him the next day, which he did as fol- lows, vizt .: That said Pemberton came to his House and asked him some Questions concerning his Report of the Conversation which had pass'd betwixt them the day before, and upon his (Graydon's) ex- pressing some Concern that it was become so publick, the said Pem- berton did desire lie would not make any Apology about it, for that he was very glad it had come to the Governor's Knowledge, since by this means he had heard Truths which the Sycophants who kept the Governor Company would never tell him, and that he would prove that the Governor had said he would bring things to Ex- tremitys. Mr. Graydon then added, That tho' all he had said might not be the very Words spoken by Pemberton, yet he was perswaded it was the sense of them.

Mr. Graydon being then desired to withdraw, The Governor pro- posed That a Warrant should be issued to bring Israel Pemberton before them to Answer to such Matters and Things as were objected to him, and having read a Warrant for that purpose, Mr. Laurence did say, That he doubted whether they as a Council could legally issue such Warrant; to which the Governor replied, That he was well satisfied that they as a Council could not legally issue any War- rant, but that he believed they would not doubt of the Governor's Power as Supreme Magistrate of the Province to issue a Warrant to bring such Persons before him for Examination on His Majesty's belialf as were charged with Matters tending to a Breach of the Peace of the Government. To which Mr. Plumstead replied, That if the Matter concerned the Governor's Character only, he should think the Governor a very improper Person to issue such Warrant, the Law having Provided a Remedy; but as it might affect the Peace of the Government he thought it very proper that the Gov- ernor should sign the Warrant that said Pemberton might be Pub- lickly examined before the Council; to which none of the Board objecting, the Governor signed the Warrant and ordered the Secre- tary to deliver it to the Sherif, with directions to use Mr. Pemberton with Civilty, and not to make use of the Warrant if he could be perswaded to attend the Governor and Council at four of the Clock in the Afternoon without it; and then adjourned till four of the Clock.

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EODEM DIE-P. M.

PRESENT :

The Honble GEORGE THOMAS, Esqr., Lieut. Governor.

Samuel Preston,

Ralph Assheton,

Anthony Palmer,

Samuel Hasell,

Clement Plumsted,

Thomas Griffitts,

Esqrs.

Thomas Laurence,

The Council being set, waited a considerable time in Expectation of the return of the Warrant issued by the Governor this Morning for bringing Israel Pemberton, Jun"-, before them, but the Sherif not coming, it was observed that Thomas Griffitts, Esqr-, was called out from the Board, who, returning soon after, took his Seat again, and then a writt was sent in by the Sherif to the Governor, signed by the said Thomas Griffitts, Esquire, which was in the following Words, vizt. :

" [L. s.] Pennsylvania ss :

"George ye Second, by the Grace of God, of Great Britain, France, & Ireland, King, Defender of ye Faith, &c., To the Sherif of ye City and County of Philada., Greeting : We Comand you that the Body of Israel Pemberton, Jun"- in your Custody as it is sayd, Detained under Safe and Secure Conduct, Together with ye Day and Cause of his Caption and Detention by whatsoever Name ye sd. Israel is censured, you have before ye Justices of our Supream Court of Pensilvania, at Philada-, at our sª Supream Court, to be held ye Tenth Day of April next, to do and receive what our sd. Justices in our sd. Supream Court shall then and there Consider in that behalf, and have you there then this Writt. Witness Jeremiah Langhorn, Esquire, at Philada-, ye Twenty-fifth day of September, in ye Thir- teenth year of Our Reign, annog Dom., 1739.

"THOMAS GRIFFITTS."

The Answer of Septimus Robinson, Esquire.

" I, Septimus Robinson, Sheriff of the City and County of Phi- lada., Do Certify to the Justices within named, that the within-named Israel Pemberton, Jun"", was taken in my Custody by virtue of a Warrant from the Honble George Thomas, Esq"., Lieut Governour of the Province of Pensilvania, By which I was required in his Ma- jesty's name to take the said Israel Pemberton, Jun"-, of Philada., Merchant, And to bring him before the said Lieutent. Governor in Council, the Twenty-sixth Day of February last past, to answer such matters and things as should be objected against him on his Majestie's behalf. And I Doe farther Certify, that after the taking of the said Israel Pemberton, Jun"", he Did Depart out of my Cus- tody, & thereupon Did procure the within writt of Habeas Corpus, and that thereupon the said Israel Pemberton, Jun"", was admitted

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to Bail by Thomas Griffitts, Esq"", one of the Justices of the Supream Court of Pensilvania, as 'tis said, and therefore I Cannot have the Body of the within-named Israel Pemberton, Jun"., at the Day and Place within-mentioned, as by the within writt I am Commanded.

"SEPT. ROBINSON, Sher."

The Writt having been read, the Governor said that he believed it was the first Instance of a Writt of Habeas Corpus being granted to take a Person suspected of Endeavouring to disturb and break the Peace of the Province out of the Hands of an Officer before Examination, and that as to the Form of the Writt and the Methods of proceeding, he thought both illegal in every part, and express'd his Concern that a Magistrate of the Supream Court should suffer himself to be surprized into the signing it without consulting some Person learned in the Law, or even taking Time to exercise his own Understanding or Judgment. However, he said he himself was resolved not to proceed on the Warrant till he had taken Time to consider and advise upon it. Mr. Griffitts then express'd great Impartiality and Concern, and declared that he thought it a Matter of Course, and therefore had signed it as such. The Sherif was then called in, and having declared that he had been with Mr. Pemberton, and let him know that he was ordered to appear before the Governor and Council at four of the Clock, which he refusing, had served the Warrant upon him ; That Mr. Pemberton read the Warrant and called it Nonsense ; That he, the Sherif, being ordered by the Secretary to behave towards Mr. Pem- berton with Civility, had permitted him to go out of his Sight, in the House of John Kinsey, Esqr., after his Word given that he would not escape; and that he notwithstanding had escaped. The Governor told the Sherif that as he looked upon the Habeas Corpus to be illegall, the Sherif was answerable for the Escape, and that Israel Pemberton, consequently, was not legally discharged from his Custody. The Council was then adjourned Sine Die.

At a Council held at Philada., February 28th, 1739.

PRESENT :

The Honble GEORGE THOMAS, Esgr., Lieut. Governor. Anthony Palmer, Samuel Hasell,

Clement Plumsted, Thomas Griffitts, Esqrs.

The Minutes of the last preceeding Council being read and approved,

The Governor informed the Board that, having consulted some Gentlemen learned in the Law, on the writt of Habeas Corpus signed by Thomas Griffitts, Esqr., at the last Meeting, had found that his Opinion of the Illegality of that writt was well founded, and having

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given many reasons for it, informed the Board that he issued another Warrant for taking Israel Pemberton and bringing him before him and Council; but that the said Pemberton being gone to Chester, he could not be taken this day, therefore adjourned the Council Sine Die.

At a Council held at Philada, February 29th, 1739.

PRESENT :

The Honble GEORGE THOMAS, Esqr., Lieut. Governor.

Samuel Preston,

Ralph Assheton, Esqrs.

Clement Plumsted,

Samuel Hasell,

The Minutes of the last preceeding Council being read and ap- proved,

The Sherif attending without was called in, and being asked whether he had executed the Warrant against Israel Pemberton, Jun"., said that he had been frequently at the House of Israel Pem- berton, and that he was denied to be at Home; That he had seen him once walking before his Door, but that so soon as he went to- wards him he went into the House and would not be seen by him.

The Governor then informed the Board that Andrew Hamilton, Esqr., had been with him just before the Meeting of the Council, and had told him that the Father of the said Israel Pemberton had been at his House and expressed great uneasiness at his Son's being obliged to keep his House for fear of being taken by the Sherif, to the great Prejudice of his Business, and that he wished the War- rant might for the present be withdrawn.

The Governor observed at the same time that the several Shifts made by the said Pemberton to avoid appearing before him and Council, and his concealing himself for two days past, shew'd such a Consciousness of Guilt, and was such a Proof of his not being able to justifie what he had said, that he was contented to withdraw the Warrant for the Present and proceed against him in some other way; which not being objected to by the Board, the Governor ordered the Sherif to return the Warrant, and then the Council was adjourned until further Summons.

Declaration of Mr. Robinson, Sherif.

Feb. 29th, 1739.

That yesterday about twelve of the Clock he came to Town; his Deputy gave him a Warrant from the Governor to take Mr. Pem- berton, Jun" .; that he went to Mr. Pemberton's House about one of the clock, and had answer that he was not in town; he went again about three of the Clock, and had answer that he was gone out ;

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he went this morning about three-quarters of an hour after Eight in the morning, and asked his Clerk or Book Keeper if Mr. Pem- berton was at home, who said he was, and went to some other Apartment of the House, as he thought, to see for his Master, but returned and said his Master was in bed; Mr. Robinson went to another Door of the House, and asked Mrs. Pemberton if Mr. Pemberton was within, who said he was in Bed; Mr. Robinson asked what time he would be up, and had answer he would in half an hour ; he went towards Mr. Pemberton's House about twelve of the Clock, and in his going down Chesnut street, by John Miller's at the Sign of the City of Dublin; he saw Mr. Pemberton standing on the Platform at his own Door, but when he had got so far as Front street, he saw Mr. Pemberton tack about and go into his House, and since has seen nothing of him.

At a Council held at Philada., March 10th, 1739. PRESENT :

The Honble GEORGE THOMAS Esqr., Lieut. Governor. Samuel Preston, Thomas Laurence, Esqrs.

Clement Plumstead,

The Minutes of the last preceeding Council being read and approved,

The Governor laid before the Board a Notice he had received from Maryland, of a Commission out of the Great and High Court of Chancery in England, signed by three of the Commissioners ap- pointed by the Lord Baltimore, signifying that the said Commission would in part be executed at Annapolis on the Eleventh day of April next, and observing that the Assembly of this Province stood adjourned to the fourteenth of the same Month, and that the Speaker is one of the Commissioners appointed by the Honble Proprietaries of Pennsylvania, and that consequently it would be impossible for him to attend both. The Governor proposed the is- suing writts to call the Assembly on the twenty-seventh of this Instant, that they might then cither proceed upon Business or ad- journ to such further time as they should think fit; which being approved of, a draught of the Writts was read and ordered to be writ over fair for the Governor's signing.

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Colonial records of Pennsylvania, Vol. IV, Part 41

Author: Publication date: 1838 Publisher: [Harrisburg] : By the State Number of Pages: 814

Author:
Publication date: 1838
Publisher: [Harrisburg] : By the State
Number of Pages: 814