USA > Pennsylvania > Colonial records of Pennsylvania, Vol. IV > Part 43
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" Experience hath taught us that it is not uncommon for Men to differ in Opinions, or to draw opposite Doctrines from the same Text; and therefore it will seem the less strange that we differ from the Governor in our Sense of the Text recommended to us, which, to our understanding, is not more applicable to the present
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Debate than the words of the Lord by the Prophet, wherein he denounces Judgment against the Man who trusteth in Man, and maketh Flesh his Arm.
" By Order of the House, "J. KINSEY, Speaker.
" The 9th of the third Month, 1740."
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" His Honour, the Governor, to the Gentlemen of the Assembly. " Gentlemen :
" A Charge of so high a Nature as that of introducing a Practice whereby the Rights, Privileges, and Freedom of an Assembly are affected, against a Person who is engaged both by Duty and Promise to preserve them, ought to be so well considered before it is made, and so clearly proved before it is published, that I can not but again express my Surprize at your having done both without the least Foundation ; and much more at your persevering in the Charge after the Instances produced by me (besides others to be produced) of the like Practice for near Twenty years past, in the time of former Governors with former Assemblys.
" You are pleased to say that you Decline particular Observations on the Instances given, because none of them, in your Opinion, come up to the Case in Question, unless the Minutes of Council vary from the Messages remaining in your House. As your charge is, that I had introduced a Practice affecting no less than the Rights, Privileges, and Freedom of this Assembly, it might reasonably have been expected that to support it your greatest Strength would have ' been levell'd at those Instances ; But instead of Reason or Proof, rather than ackowledge the Force of them, you satisfy yourselves with a bare Assertion That they do not come up to the case in Question ; but will any unbias'd or unprejudic'd Person be deter- mined by an assertion against plain Proofs, or would it be admitted in the lowest Court of Law against the meanest Offender.
" As from hence it may be taken for granted that the Instances produced are a full confutation of your Charge, you think it neces- sary to have recourse to other Arguments foreign to the Question, and so you enter into the Reason of the thing from the Privilege claimed by the Assembly of access to the Governor, whereas the true question is whether a new Practice was introduced by me or not; and therefore from that I must not suffer myself to be diverted.
" The Distinction in your next Paragraph about a publick and a private Hearing is quite new to me, and after some search into the Journals of Parliamant I cannot find that it has any Countenance from them, or that a public Hearing of the Parties petitioning
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against a Bill before either House of Lords or Commons was ever called a private Hearing. Had the Representatives of the People been denied a Hearing you would have had just reason to complain ; but as that was not the Case, and as this Matter was transacted ac- cording to the Forms heretofore used in this Government, the Charge of my having introduced a new Method cannot lye against me. Had you sought only to avoid Inconvenience, a way should have been taken very different from that of exhibiting a Charge to the Publick for a breach of what you call a Privilege, tho' it was never deem'd so by any one preceeding Assembly.
" When Mr. Levis and Mr. Chapman brought the Message from your House on the subject of Defence, they informed me of your Resolution to adjourn ; after some Expostulation with them I signi- fied my approbation of it for Reasons then given, and had the Busi- ness of the Province called me elsewhere I could have had no Reason, from the known and established Rules, to wait for anything further from you. But after this came your extraordinary Message upon breach of Privileges. Had not that message contained a Charge against me, and you had expressly mentioned a Conference at your next Meeting, no ill impression had been made on the Minds of the People in regard to my Conduct, nor my denying a Conference ever have been suggested. The time of sending it, however, would not have been the less irregular.
" As I have long since revised your printed Votes for many years past, I can affirm that it has been the Practice to insert the Gover- nor's Messages and Reasons against Bills when they have been signed by the Governor, and often when by the Secretary only, without any Order for printing the Bills themselves ; and for a Confirmation I refer you to the printed Votes, for Governor Gor- don's several Messages containing Reasons against the Flour Bill in 1733, against the Bill for the more easy and speedy recovery of small Debts, against the Paper-Money Bill, against the Bill about Weares and Damms in Schuylkill, for my own Message against the Paper-Money Bill last year, and many others; and as Instances to this Purpose are so numerous, I cannot but wonder that your House should fall into this new Mistake. I have not been able to get the printed Votes during ST. William Keith's Government, but from the constant Usage in the time of his Successor, there is good Reason to conclude the Practice was the same. And it seems to me very unreasonable that the Assembly's Messages in Answer to the Gov- ernor's should be printed, without printing those to which they were answers, as it is showing the Governor in a partial and disad- vantageous Light to the People, and consequently must have a Tendency to destroy that Harmony between Him and Them which is so necessary for the Good of the Government in general, and should therefore be carefully cherished.
" You cannot be more desirous than I am of preserving a good un-
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derstanding in the several parts of the Legislature ; but as one half of the Power of making Laws is vested in the Governor for the time being, you must allow me to exercise my Reason in consider- ing the Good of the whole Government when any Bills shall be laid before me for my assent. The Assembly has Power sufficient, if rightly exercised, to make any People happy; but if once they at- tempt by any means whatsoever to wrest what belongs to the Gov- ernor out of his Hands, it will be a breach upon the Constitution, and introductive of great Discontent and Confusion.
" Philada."
" His Honour the Governour in Council to the Gentlemen of the Assembly.
" Gentlemen :
" As you say it will be needless to press you further to put the Province into a Posture of Defence, I must content myself, let what will happen, with having done my Duty both to His Majesty and the People under my Government.
"I did not, nor can I now, think you ignorant of the Calumny that has been thrown out against me by Persons without Doors ; and tho' I did not expect redress from you, As His Majesty had been pleased in His Speech to His Parliament to mention the Heats and Animosities which with the greatest Industry had been fomented thro' the Kingdom, and his faithful Commons to Answer that they would endeavour to compose those unhappy Divisions, I thought it not improper to complain, in hopes that you for the Peace and Good of this Country would have declared with a Zeal becoming the Rep- resentatives of the People that you would endeavor to discounte- nance such Practices for the future.
"Tho' neither the Sum nor the Time for giving the Governor's Support have been absolutely fixed, yet there has been for many years past a Rule observed as to both, except where the Governor has refused his Assent to any favorable Bill, or has taken upon him to differ from the Assembly in other Matters.
" As you have said that the Text quoted by you is not applicable to the present Debate, I need only answer that I hope such a Man is not to be found in a Christian Country who trusteth in Man only and maketh Flesh his Arm without trusting in God, and that such as are for making use of the means God has given them for their Defence have as reverent thoughts of His Power and Providence as those that profess the contrary.
" Philada."
The Governor likewise laid before the Board some Reasons offered by the Assembly in Support of the Bill entitled An Act for raising
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Money on the Inhabitants of the City of Philada., &a-, which are as follows :
"Reasons offered in Support of the Bill entituled An Act for the better raising of Money on the Inhabitants of the City of Phila- delphia, &ca-, And in Answer to the Objections made against the said Bill.
" The Bill proposed being in the Affirmative, and containing no negative Words in relation to the Charter, will not, if past into An Act, we think, debar the Mayor and Commonalty from the Exercise of any Powers lawful to them before by Virtue of their Charter, particularly
"1. That no part of the Bill if past into an Act would disable the Mayor and Commonalty from purchasing Lands and holding those they have already purchased.
"2. That there is no part thereof which would deprive the Mayor, Recorder, and Alderman, from the Exercise of any Powers they have as Justices of the Peace and Oyer and Terminer, in removing Nu- sances and punishing the Parties offending or otherwise.
"3. That there is no part of the Bill that takes from the Mayor and Commonalty the Power of regulating Streets and extending them into the River Delaware, erecting of Wharfs, Prisons, Court Houses, or any other Buildings, provided it be done at the Expence of the Corporation. Nor would any part of the Bill, if passed into a Law, debar them from levying Money on the Inhabitants to these purposes, if they were authorized by their Charter so to do ; altho' in our Opinion it ought not nor cannot give any such Power for the following Reasons :
"1. The Members of the Corporation were originally named by the Proprietor, and have since chosen their Successors; and as the Inhabitants of the City have not any Right to chuse them, it is not reasonable they should have the Power of levying Money on the Inhabitants without their Consent.
"2. The King himself claims no Power of laying and levying Taxes on his Subjects but by common Consent in Parliament; and as all the Powers of Government in this Province are derived under him, they cannot be greater in this Respect than those from which they are derived.
"3. Of this opinion the Mayor and Commonalty were themselves formerly whatever their present Sentiments may be; for in the tenth year of the Late Queen Ann they petitioned the Assembly, setting forth among other things the Deficiency of their Powers in this Respect, and thereupon an Act was passed enabling them, with assent of Assessors chosen by the People, to lay and levy Taxes when Occasion required. In which Act some Inconveniences have on Experience been found, and for remedying of which the present Bill was proposed.
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"4. That wherever a Law grants any thing, it also grants every thing necessary to obtain the End proposed ; and, therefore, if this Bill be passed into a Law, we conceive the Commissioners and As- sessors will be fully Authorized to do every thing intended them to do by the said Bill
"5. The Bill, if passed into a Law, will give the Inhabitants of the City no greater Privileges than the Inhabitants of every other Part of the Province, except themselves, enjoy.
"6. That if any part of the Bill do take from the Corporation any of their just Rights, or be deficient in respect to the Powers of the Commissioners and Assessors, the Bill may be amended in either of these Respects, to which we shall chearfully agree."
To which the Governor returned the following Reasons against the Bill, &ca., Vizt .:
"His Honour the Governour to the Gentlemen of the Assembly. "Gentlemen :
" As you seem to have the Bill now returned you from me very much at Heart, I have therefore taken some Time to consider the Weight of your Answer to my Reasons formerly sent you for my not agreeing to that Bill. In what I then said I mentioned seve- ral of the Powers granted to the Mayor and Commonalty of Phila- delphia, which was principally with a View to shew that the Hon- ourable Grantor, by his Charter, intended to make them a consider- able Body, as well for the Honour as the Service of the Inhabi- tants. And that the People might entertain no Jealousy of their being under any undue Influence, he made them entirely indepen- dent of himself and his Government forever, which I should think would not render them disagreeable to you.
"But however that may be, I was clearly of Opinion at your last parting, that the Regulation of the Houses, Bridges, Wharfs, Landing- Places, Streets, Water-Courses, &ca-, was totally taken out of the Hands of the Corporation, and all the Power left to them by the Bill is, that the Mayor, Recorder, and Alderman, shall wait upon the Com- missioners and Assessors, and propose to their Consideration such Reg- ulations as the Mayor, &ca., shall think necessary ; which Proposition the Commissioners and Assessors may regard or not, as they please. So there is all the part which the Corporation are to have in the Regulation ; and then it must follow, that all Regulations must be at a stand, or else the Commissioners and Assessors (who by the Bill are to raise money, employ Workmen, and pay them), must proceed in the manner they think fitt. And this, I presume, is what you mean in your fourth Reason, where you say, 'That wher- ever a Law grants any thing, it also grants every thing necessary to obtain the End proposed; and, therefore, if the Bill be passed into .a Law, you conceive the Commissioners and Assessors will be fully authorized to do every thing intended them to do by the said Bill.'
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"Nor can it be said with any Justice that the Bill does not in- terfere with the Rights of the Corporation, when its evident none of them have it in their Power to do any one Act in the Regula- tion before mentioned, except that of proposing what they think necessary; which Proposals the Commissioners and Assessors may regard or not, at their Pleasure. Therefore, as it has been so often said that the Bill never was intended to take away or interfere with any of the Rights of the Corporation, and it now appearing that it unquestionably does, I hope it will be insisted on no more.
" This was all I intended to say at this time, yet lest it might be suggested some of your other Reasons are unanswerable, I will, therefore, take Notice of such as may be supposed to have some Weight in them, and then give you my own Judgment upon the Proceedings of your House, and what appeared to me when the Corporation and Assessors were heard before me.
" You are pleased to introduce your Answer with saying that the Bill being in the Affirmative, and containing no negative Words in Relation to the Charter, will not, you think, if passed into a Law, debar the Mayor and Commonalty from the Exercise of any Powers lawful to them before by Virtue of their Charter. This, I presume, may be a point of Law, and may be true where the affirmative Words do not imply a Negative. For suppose in the Bill you had provided that the Mayor of Philadelphia should henceforward be annually elected by the Inhabitants, or appointed by the Governor, and being so elected or appointed shall have all the Powers, &can that any Mayor of the City of Philadelphia ever had. Now, this Pro- vision is in the Affirmative, and here are no Negative Words, and yet can it be believed after the passing of such a Law, that a Mayor chosen in the usual Manner by the Corporation would be a lawful Mayor? Or suppose the Corporation should choose one Mayor, and the People another, can such a Controversy be determined without a Judgment at Law ? And what confusion must ensue upon such a Law, and such a Construction of that Law as you con- tend for, is too obvious to be particularly mentioned. The Law is not my Profession, but I have read that it is a Rule in the Books that Leges posteriores priores contrarias abrogant, and I think it a very just one, if applied to the Bill now under Consideration.
"I take Notice that by your Minutes it appears this Bill was ordered to be brought in upon a Petition preferred to your House, complaining of some Neglect in the City Magistrates. It appears, likewise, that upon the Application of the Mayor and Commonalty of Philadelphia, they and the present Assessors, with some other of the Petitioners, were heard before your House ; but it no where appears that the Petitioners had made good their Charge, or that the Magistrates were in any Fault, and as the House had come to no Resolve of that Kind, it was reasonable to suppose that in a parliamentary way the Bill would have stopped there. Upon your
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sending the Bill to me, I received a Petition from the Mayor and Commonalty, requesting to be heard against the Bill, and thereupon I ordered a Copy of the Petition to be given to the Assessors, with Notice of the time of Hearing, and they were heard accordingly ; when the Facts appeared thus, as I find by the Minutes I then took :
The' Assessors complained that they had frequently sent to the Magistrates to meet them to settle the City accounts, which they had not done, and that by Reason thereof some of the publick Money was lost. The Majistrates said, that they had sometimes met the Assessors, but at other Times had not, yet the Law did not require their Attendance at any of those Times, and that their pre- sence was not in any wise necessary to the Settlement of the Asses- sors' Accounts ; and said further, that the only time required by Law for them to meet the Assessors was on some day in April, in order to calculate the publick Debts, &ca., that it might be known whether any Money was wanting for the Service of the City ; and again, on the 25th of March, &ca., they said the Treasurer was to lay his Ac- counts before the Majistrates and Assessors, who are to allow him what they think fitt to allow him for his Trouble, so that as the Accounts between the Assessors, their Collector and Treasurer, can well be settled without the Presence of the Majistrates, who are not by Law required to attend them; if any Money was lost, it was entirely the Fault of the Assessors. It was further said by the Assessors, that one of their Collectors had applied to the Recorder for a Warrant of Distress, which he refused at that time, and they judged that occasioned the Loss of some publick Money ; To which it was answered that a Collector, who is now dead, insolvent, did apply for a General Warrant of Distress, tho' he had levied a great part of the Tax before; that the Recorder, knowing the ill use which had been made of such Warrants, desired the Collector to draw out a list of the Delinquents, and such a List as he could af- firm to, that he had demanded the Tax of the respective Persons contained in the List, and that they had neglected or refused to pay, and then he would grant him a Warrant to distrain, and not before ; That the Collector did so, and had a Warrant accordingly ; but it being several years ago, the Recorder said he could not tell how long it was between the Time the Collector first applied and the second, but he thinks it was not long, nor does he think himself concerned about the Time, because he is sure as soon as the Col- lector brought the List of Delinquents he had a warrant to Dis- train.
" It was said and agreed to on both Sides, that the City Treasu- rer had waited on the Justices on the 25th of March then last past, when they were in Court doing Business, and that the Treasurer said to one of the Justices, that that was the day he was to lay his Accounts before the Majistrates and Assessors, but believed no
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other Majistrate heard him, and that the Majistrate answered he knew nothing of it, or some such Words, and that two of the As- sessors were in the Court House or in the Balcony, but said Nothing.
"To this it was replied by the Magistrates, That unless it were the Magistrate to whom the Treasurer spoke, none heard or knew any thing of the Matter, and that it was the Treasurer's Duty to lay his accounts before the Majistrates publickly as the Law directed, and not to speak to a single Majistrate; And if the Assessors, or any of them, were present, they did not appear as Assessors, nor offer themselves to join the Majistrates in settling the Treasurer's Accounts.
" It was said further, that for many years the City Treasurer had never laid his Accounts before the Magistrates, nor had the Asses- sors ever attended at the Day, as by Law they are enjoined, but had proceeded from Time to Time to allow their Treasurer what they thought fitt for his Service, without the Concurrence or Knowledge of the Majistrates, which was not denyed by the Assessors, who, on that Occasion, behaved with great Moderation and Civility; and as the Majistrates appeared to be in no Fault, and that the Charge against them for Non-Attendance arose upon a Misunderstanding of the Act of Assembly, and such a Moderation appearing on all sides, I was in hopes the Bill would have been prosecuted no further. But I find I am mistaken, for tho' the Bill concerns no Part of the Pro- vince but the City of Philadelphia only, it seems to have ingrossed the principal Attention of the Assembly ever since it first came into the House.
" And that I may acquit myself fully for differing in Opinion from your Assembly, I will conclude, by adding my own Thoughts upon the present Law for raising Money on the Inhabitants of the City of Philadelphia, as it now stands :
" By that Law it appears that the Magistrates have no Power to raise one Penny of Money upon the Inhabitants of the City of Philadelphia, but in Conjunction with the Assessors to be annually chosen by the Inhabitants of Philadelphia, who are to calculate the publick Debts of this City, and what Sum or Sums of Money may be needfull for the Purposes mentioned in the Act, and to what Uses to be applied, all which is to be entred in a Book, And then the whole Trust of laying the Tax or Assessment, appointing Per- sons to collect the Money, and a Treasurer to receive it, is vested in the Assessors solely. And what remains for the Magistrates to do is only to draw an Order for paying the Workmen such Money as was agreed upon by the Majistrates and Assessors, to be applied to each particular Use or Service ; So that it's most evident, the Majis- trates can lay no Tax, nor apply one penny of the Money raised to their own Use, nor to any other Use except the Uses agreed to by the Assessors, which, in my Opinion, puts the Inhabitants of Phila-
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delphia absolutely out of the Power of the City Magistrates, either as to raising Money or in applying it without the Concurrence of the Persons chosen and elected by the City to represent them in the Execution of that Law.
" Let me add to this, that I think it will not be denied that the Mayor and Commonalty are, for their Circumstances, Abilities, and Interest, equal at least to any like Number of Men in the City of Philadelphia or Province of Pennsylvania, and whose Estates must contribute largely towards any Tax which can be raised upon the Inhabitants of this City, which, in my Opinion, is a good Security to the People against all unreasonable and unnecessary Impositions and Assessments."
At a Council held at Philada., May 19th, 1740.
PRESENT :
The Honble GEORGE THOMAS, Esqr., Lieut. Governor.
Samuel Preston,
Samuel Hasell,
Ralph Assheton, Thomas Griffitts,
Esqrs.
The Minutes of the 10th Instant were read and approved of.
A Letter from some of the Inhabitants of the Menesincks to the Governor was read, setting forth that one Henry Webb had been cruelly wounded on the 13th Instant by an Indian Man named Awannemeak, and that if he was not demanded and delivered up to be punished, they should be obliged to defend themselves, and that as there was no Surgeon in that part of the Country, they had sent the said Webb down to Philada. The Governor then informed the Board that he had directed Doctor Thomas Groeme to provide a Lodging and a Nurse for Him, and to attend him, in order, if possi- ble, to cure his Wounds, which were reported by Doctor Græme to be very dangerous, and that if they could be cured it is not proba- ble that he ever will be able to gain a subsistence by his Labour. The Governor likewise proposed that a Letter should be wrote to the King or Chiefs of the Nation of Indians to which Awannemeak is Subject, to demand Satisfaction for his barbarous Actions, which being approved of, it was left to the Governor to prepare such Letter, and to send it by - Scull, with all convenient Speed. Samuel Preston, Esqr., Provincial Treasurer, was likewise desired to make the necessary Provisions for the said Henry Webb during the time of his Cure.
The Governor laid before the Board a Message he had received from the Assembly of the 14th Instant, with their Reply to his Answers to the Reasons offered by the Assembly in support of the
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