Colonial records of Pennsylvania, Vol. IV, Part 5

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

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" But we find it is now alledged there is a Clause in the Charter of Priviledges repugnant to the Governor & Council's holding such a Court in this Province, and it is said to be the sixth article which is in these Words ' That no Person or Persons shall or may at any time hereafter be obliged to answer any Complaint Matter or Thing whatsoever relating to Property before the Governor & Council, or in any other Place, but, in the ordinary Course of Justice, unless Appeals thereunto shall be hereafter by law appointed.' But the holding such a Court by the Governor & Council, they say, may oblige People to answer Complaints in Matters relating to Property before them : Upon which we must observe, that the Charter of Priviledges is dated the latter End of October 1701, and the Re- solve of the Assembly being but about eighteen years & and a half after, there were then divers persons of Figure & Consideration not only then living, but Members of that House, who not only could well remember the Grant of the Charter, but if we greatly mistake not, some of that House of 1720 were Members also of the Assem- bly in 1701 who accepted of the said Charter, and therefore none could be thought more capable of judging of the true Intent and Meaning of that Clause, nor are we to suppose that such a House of Representatives could be ignorant of it or overlook it, for that Charter having been highly esteemed & justly held dear by all the People, such a Neglect or Failure cannot with any Colour of Reason be suspected, as that, while every House of Representatives consider themselves, as their Constituents do, to be the Guardians of the Rights & Priviledges of the People, and obliged most care- fully to watch over them, there should not be one Member of the House to put the rest in mind of such a Repugnancy. It cannot

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therefore be supposed an Inadvertency, or that the whole Assembly were ignorant of such a Clause, but rather that they not only well knew the Clause itself, but also knew that there was no Repugnancy in any Clause or Words of it to the Court they then desired might be erected.

" But to proceed. The several Courts of Law having been held from the year 1719 to 1722 by Commissions only, the Assembly for that last year prepared a General Bill for all the Courts of Law, which was passed by the Governor, yet tho' in the Resolve of May 1720 it is said to be the House's Opinion, that the Governor should for the present be desired to hold a Court &ca. from which Words some have imagined that a further Consideration was intended, yet there was not the least alteration made or offered that we know of in Relation to the Court of Chancery, but while all the others were established by Law, that alone continued as at first erected. And to take of all Suspicions that these two Assemblies might possibly be so inadvertent (which as has already been remarked cannot ra- tionally be conceived) as not at all to consider the aforesaid sixth Clause in the Charter, we must further observe, that the Assembly that sate in 1724-5, having by a singular management of Sr Wil- liam Keith been put upon considering the Charter thorowly, upon which Occasion it was printed that it might come to the Hands & Knowledge of all the People, it does not appear that any Repug- nancy was then found or taken notice of between the Charter & Chancery in any respect : And yet further, if it should be alledged that this Establishment & Continuance of the Court was owing to the Influence or Art of the then Governor it is to be rembred, that since the Governor's Accession, who has ever been above every Practice of that kind, the Assembly for the year 1727, who were then under no Restraint, but as much at Liberty as the present, seeing Occasion to alter and re-enact the Law for Courts, accord- ingly did alter & with the Governor's Concurrence re-enact it, but never offered at any alteration in the Court of Chancery more than the others had done before them : And thus, as it was first erected at the Desire of an Assembly, and the Proclamation for its Estab- lishment publickly read in the House, and has on the same Foot been continued in the times of fourteen several Assemblies, all on new Elections before the present which is the fifteenth, there must be something very uncommon & extraordinary to make that now a Repugnancy to the Charter which does not appear to have been dis- covered by any other to be such before, and this with what we have here offered we hope will be abundantly sufficient to take off all manner of Imputation from the Governor & Council, for continuing to hold a Court so solemnly & deliberately erected, & makes it clear- ly evident that the present House have not duly considered the sev- eral Assemblies that have gone before them, and those three par- ticularly, the first which in 1720 pass'd the Resolve for it, and the other two in 1722 & 1727, who pass'd the Laws for all the other

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Courts; for had any of those Assemblies believed there was any such Repugnancy as has been mentioned, it was undoubtedly most immediately incumbent on them to have prevented the Erecting of the Court, or to have remonstrated upon it when erected, and to endeavour to have the Grievance removed : Nor does the House seem to have sufficiently reflected on these two Considerations .- First, that the Word Property as from the Distinction always made between the Proprietor's Proprietary Powers & those of Govern- ment, the different Hands in which they are lodged, as the Lieuten- ant Governor and Commissioners of Property with the several Offi- ces for them as Secretary of Government and Secretary of *Property, in all which Cases, and in the general acceptation of the Word in this Province it has been commonly understood, that the Term re- lated only to such affair's as concerned the Proprietors Property only, and seldom to any other, which plain & common Distinction, fully takes of all Imputation from every of the former Assemblies as well as from all others. And again that, should even that Word be taken in the general and more extensive Sense, as the present House would now understand it, yet when a Court of Equity is so erected as to proceed according to the Rules of a Court in Chan- cery, they are then to be considered as a Court, and such a Court as is held in every one of the British Governments according to the stated Rules of Practice, and therefore the People are not obliged by it to answer any otherwise than in 'the ordinary Course of Jus- tice' according to the express words of the Charter. Nor can it be any Objection. that the Council & Court are both made up of the same Persons, for as the Council are generally chose from amongst such as are accounted the principal Persons of the Place, they are for the most part Judges or Magistrates at the same time in the Courts of Law, as the principal Part of those who generally make up the County Court & Common Pleas at this time for Philadel- phia, are all Members of the Council, and tho' they are the same Persons, yet they sit as different in their different Stations, and un- der different Qualifications, as well in the Court of Chancery as in the other Courts of Judicature. Therefore as the Case on the Part of the Members of the Board is just the same in this as in ye other Courts, the only Difference can be in Relation to the Governor, and it must appear strange to all the World, that the Person in whom half the Power of Legislation, & the whole Power of appointing all the Magistrates, those of Corporations excepted, is vested, should be thought unfit to be trusted with only a Vote, in Conjunction with

* In the commission to Edward Shippen and others appointing them Com- missioners of Property, bearing equal Date with the Charter the Word Pro- perty, is repeatedly used in the Sense here applied to it . . . . the Office is called the Office of Property . . . . . they are empowered to manage af- fairs of property, &ca. .... and in the act passed by the whole Legisla- ture for the more easy collecting the Proprietary Quit Rents, the Proprie- tor is said to be represented in Matters of Property, &ca.

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others, in the Trial of a Case of private Property between Person and Person : The Assembly however may be assured, that none of the Council are fond, or in the least desirous, of the Employment, and if the Governor shews any Inclination the Court should be continued on the same Foot, we are perswaded it can be from no other Inducement than his Desire to preserve Decency and Order, and some Resemblance between this Government and all the other British Ones in America. So that in no Sense whatever of the Word can there be any Repugnancy between such a Court of Chancery and the Charter.

"We must at the same time acknowledge that, when an Assem- bly is of Opinion that any Part of the Constitution or Adminis- tration may be altered for the better, they have a good Right to take proper Measures for it and endeavour to obtain it; yet in this Case we cannot be perswaded but that, after the present House had ap- plied to the Governor to know on what Foundation the Court of Chancery was established, if they had disliked it, and were of Opin- ion it would be for the Service of the Publick to have an Alteration made, it would have been proper to have first acquainted the Gov- ernor with their Sentiments, and in some regular Method to have conferred on the Head, and not, without any further Communica- tion, to have proceeded to such a Resolve, to be immediately pub- lished to the whole Country, as lays so hard an Imputation on the Governor and all the Council who have been concerned in that Court.

" Before we conclude, we ought not to omit observing that in the Notes of the present House some Petitions against the Court of Chancery are mentioned as the Foundation of their Proceedings therein, but altho' it is the undoubted Right of the Subject to pre- fer Petitions to every Branch of the Authority, in whom the Power of redressing any Grievances, which they conceive they labour under, is vested, yet the Practice & Method of obtaining Names to Petitions amonst us are now so very well known, that all Persons of Judgment must be sensible, the Matter, and not the Number of the Signers, is principally to be considered and regarded.

"Thus, may it please the Governor, we have given our Sentiments of that Resolve, and hope what we have here offered, with a most sincere regard to Truth and Justice, will have Weight as well on the House of Representatives themselves, as on all other impartial People who may consider the same.

" James Logan,

" Samuel Preston,

" Clement Plumsted,

" Thomas Laurence,

" Ralph Assheton,

" Samuel Hasell,

" Thomas Griffitts,

" Charles Read."

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The Governor's ill State of Health rendering his application to Business too fatiguing, He requested that the Gentlemen of the Council, or any three of them, would meet & dispatch the other Bills lying before the Board, & such as hereafter should come from the House, acquainting him, by the Secretary, with their Proceed- ings ; Which several of the Members undertook to do.

In a Committee of Council, February 19th 1735-6.

PRESENT :

James Logan, Samuel Preston,

Thomas Griffitts,

Clement Plumsted,

Ralph Assheton, - Esquires.

The Bill for depositing the Records in the Offices adjoining to the Statehouse, with the amendments proposed by the Governor, & the Reasons of the House for disagreeing to some of them, being taken into Consideration, a Petition of Mr. Evans Register General for the Probate of Wills, &ca., having been presented to the Governor, & now laid before the Committee, was read, setting forth the Hard- ship of being obliged, under a fine recoverable by the testimony of any one Person, to give so close an attendance as six days in the week on an Office whose profits are not a sufficient Support, and that the Books ought not to be lodged together with the Original Wills & Papers, as well for the general Security as for the Conve- niency of making out Copies with more Expedition & less Trouble to the Officer & People applying for them, & therefore praying that the said Bill may in these Points be amended : Whereupon, & on considering the amendments in Controversy, a Paper was Drawn up and reported to the Governor, who having approved thereof it is Ordered to be signed by the Secretary, & carried down to the House with the Bill, & is as follows :

" From the Governor in Council to the House of Representatives, in answer to their Observations on the Amendments proposed by Him to the Bill entituled An Act to enjoyn sundry officers in the County of Philadelphia to deposit the Records Publick Papers, &ca., in their Custody in the Offices adjoyning to the State House.

" Tho' an attendance by Deputy may be deemed a good one, yet to obviate all. Doubts its desired that the Word Deputy be inserted in the proper Places of this Paragraph.

" It is insisted that Office Hours should be named, because other- wise the Officers may be called upon at unseasonable Hours-after the word Week, twice repeated in this Paragraph, add between the Hours of 9 & 12 in the forenoon & 3 & 5 in the afternoon ; after the words at other Times, say within the Hours aforesaid.

" The attendance of the Register General cannot but be judged VOL IV .- 3.

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unreasonable, for as that Office ought always to be in a Person of Credit & Circumstance, it must be acknowledged that it would be too great a Hardship to confine him or his Deputy to constant At- tendance for so many days even at his own house, for all Persons have Business abroad, nor can it be conceived why in this Point there should be any Distinction between that Officer and several others : The Governor having received a Petition from the Regis- ter General herewith delivered, recommends to the House to con- sider it, & especially his Proposal relating to the Books, which cannot but be a further Security to the Country in case of any accident by Fire.

" The Persons accept of these Offices solely for the profit of them, and that profit will undoubtedly induce them to give all reasonable attendance, but so strict an Injunction by Law may give a handle to Persons of litigious Dispositions to put the Officers to unreason- able trouble and vexation.

" As the fine is to be recovered in the like manner as Debts under forty shillings are, the Evidence of the Complainant is re- ceived, besides whom there ought to be the Testimony of another; add therefore after the word Witness, besides the Complainant; and that this Fine may be no Temptation or Inducement to watch Op- portunities for Complaints, It is proposed, and the House are desired to agree, That it may be applied to the Use of the Poor of the County."

Some Progress being made in drawing up amendments to the Bill for ascertaining the Rates of Ferriage, the Committee adjourned till the afternoon.

The Secretary was ordered by the Governor to acquaint the House, that the last-mentioned Bill would be returned this after- noon, that there remained with the Governor the Bill for confirm- ing the Decrees of the Court of Chancery, & the bill for establish" Courts of Equity, with Regard to which His Honour desires that the House will furnish him with Copies of the several Petitions presented to them, complaining that the Court of Chancery, as it is established in this province, is a violation of the Charter of Pri- viledges.

P. M. PRESENT :

The same Members as in the forenoon except Mr. Preston.

The amendments to the Bill for ascertaining the Rates of Ferri- age being drawn up, reported to the Governor & by him approved, were signed by the Secretary and ordered to be carried down to the House with the Bill.

The several following Papers being this afternoon brought up to

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the Governor from the House, were by His Honour sent to the Committee & read in these words :

" An answer from the House of Representatives to the Governor's verbal Message of this Day by his Secretary.

" Upon Consideration had of the Message from the Governor for sending to him Copies of the Petitions preferred to this House, complaining that the Court of Chancery is a violation of the Char- ter of Priviledges, The House do answer :-

" That We assure the Governor we shall be always ready to do every thing that is consistent with the Priviledges of this House to oblige him ; That we humbly conceive it is entirely discretionary in this House to give Copies of any Complaints or Petitions made to them for Redress of Grievances, and that it may at some times be of very ill Consequence so to do.

" But as we conceive the Petitions, of which the Governor re- quest Copies, contain nothing but a just State of the Inconsistency of the Court of Chancery as then held, with our Charter of Privi- ledges, upon the Preservation of which the Happiness of the Free- men of Pennsylvania so much depends, It is

" Ordered, That the Clerk forthwith make out Copies of the said several Petitions preferrd to this House, together with the Number of Subscribers to each Petition, and that two Members of this House wait upon the Governor with the same.

"Signed by Order of the House,

" A. HAMILTON, Spcaker."

1209428 -

' "To the Honble House of Assembly for the Province of Pennsylva.

" The Petition of divers Inhabitants of the County of Philadia. " Humbly Sheweth,

" That this Province, remarkably distinguished for the many great and valuable priviledges which they enjoy, & which are chiefly owing to the wise Contrivance in the first Foundation of our Con- stitution, and our present Charter being the great Security we have for the Continuance of our present happy Condition, We beg leave to represent, That by our said Charter of Priviledges, which has always been held sacred by the Freemen of this Province, It is declared by our first noble Proprietor, That no Person or Persons shall or may at any time hereafter be obliged to answer any Com- plaint, Matter or Thing whatsoever relating to property, before the Governor & Council, or in any other Place but in the ordinary Course of Justice, unless Appeals thereunto shall hereafter by Law be appointed. Yet notwithstanding our Governor & his Council,

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contrary to the very Words of the Charter, have, for a considerable time past, Thought fit to sundry Inhabitants of the Province, to appear and answer before them as a Court of Chancery, which we conceive to be not only a Violation of our Charter, the great Secu- rity of our Liberties & Priviledges, But may in time be attended with very dangerous Consequences, and as this part of our Charter is dispensed with in this Particular, the whole may in time come to be disregarded upon other Occassions, Which we humbly pray may be considered of and guarded against by you, in whom the Country have reposed their Trust, and who are for the present the Guardians of the Peoples' Rights and Priviledges.

" Two hundred and Fifty-five Persons have signed to the Petition of which the above is a true Copy.

"J. GROWDON, Cler. Coun."

"To the Speaker and Honble Assembly of the Province of Pennsylvania.

"The Petition of divers of the Inhabitants of the County of Bucks

" Humbly Sheweth,

" That the People of this Province, being very Sensible of the many valuable Priviledges granted to us by our first Proprietor, And that we cannot shew the Value we put upon them better than by endeavouring strictly to preserve the same to our selves & our Posterity, We therefore take the liberty to represent to you, our Representatives, That our said Proprietor, well considering the many strange Judgments that had been given in his Day and Memory, in the Court called the Starr Chamber, and before the King in Council, in prejudice of Mens Liberties & Properties, did wisely & justly provide in his Charter of Priviledges granted to the People of this Province, that no Person should be obliged to Answer any Complaint, Matter or thing whatsoever relating to Property, before the Governor & Council, or in any other Place, but in the Ordinary Course of Justice, which for a long time was Carefully observed. But of late years a Court called the Court of Chancery has been held before the Governors and Council of this Province, and mens' Propertys have been tryed there, Which we beg leave to say is Contrary to our Charter; And besides it is complained That Charges of that Court are very high, and People are obliged to be at a great Expence & trouble in coming from the remote parts of the Province to Phila- delphia, which is a great grievance to the Inhabitants : Wherefore your Petitioners humbly pray you will take this grievance into your wise Consideration, and grant Relief to the People of this Province, by causing our Charter to be strictly observed, And Further to provide for the Ease of the People, by erecting Courts of Equity

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more convenient for their Attendance, and less Expensive to those who may have any Business there. All which we humbly Submit to your wise consideration.

"The foregoing Petition is subscribed by Eighty-four Persons.

"There is another Petition from the county of Bucks, Verbatim with the above, signed by forty eight persons.

"J. GROWDON, Cler. Coun."

"To the Honble Speaker & House of Representatives of the Province of Pennsylva.

"The Petition of divers Inhabitants of the County of Chester " Humbly sheweth,

"That our late Honble Proprietor, having seriously considered what was the best & most likely way to People his Country, found that his securing to all such as should become Freemen of Penn- sylvania the Freedom of Englishmen, with certain other Priviledges suitable to the Settlement of a new Country, was the only way to effect this great Work, And therefore he granted to all such as should become Inhabitants of his said Province many valuable Priviledges, as by our present Charter may fully appear; And by which Charter it is provided that the Legislative .Power should be wholly vested in the Proprietor or his Deputy Governor, and the Representatives of the Freemen of Pensylvania met in general Assembly, And that no Person should be obliged to answer any Complaint, Matter or Thing whatsoever relating to Property, before the Governor & Council, or in any other Place, but in the ordinary Course of Justice, unless appeals should be thereunto granted by Law, which was a very just Provision made for the Security of the Peoples' Rights, who might have many Differences even with the Proprietor himself about matters of Property, and that therefore it was not equitable that any Cause wherein he might be concerned should be tried in a place where he himself or his Deputy (which is the same thing) should sit as Judge; Yet so it is that notwith- standing the Provision made by our Charter, there is a Court of Chancery held before the Governor & Council, where, we are in- formed, several Persons have been obliged to appear & answer concerning their Properties. Wherefore as we conceive this Court is expressly against our Charter, & may in Time prove on many Accounts very dangerous, as well as tedious and expensive Court to the People of this Province, We humbly request that you will take the same into your wise Consideration, & not only take care that the Priviledges granted to us in our Charter are inviolably preserved, but that some Provision suitable to the Circumstances of the people may be made for such as want Relief in Equity, without being

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obliged to travel from the remotest parts of the Province to Phila- delphia, & there to attend that Court at a very, great & heavy Expence, Which Proceedings, as the Business of that Court does Increase, will undoubtedly become a very great Grievance to the People ; all which we humbly submit to your wise Consideration, and we as in Duty bound, &ca.

" The above Petition is signed by fifty-nine Persons.

"J. GROWDON, Cler. Coun."

A Bill Entituled,

AN ACT for the more easy & speedy Recovery of small Debts, having been sent up from the House to the Governor, was read & continued under Consideration till to-morrow morning, to which time the Committee adjourned.

February 18th.

The Governor sent down to the House the following written Message by the Secretary :

"Gentlemen :

"It was a very great Surprise to me, to read in the printed Notes of your House the Minute & Resolution of the 27th of January last, in Relation to the Court of Chancery for this Province, as held . by the Governor & Council, yet as it has always given me an Un- easiness to differ in. Sentiment from the House of Representatives, I delayed several Days taking any Measures thereon, till believing there was a Justice due to the Council as well as my self, I at length on Saturday last, put the Gentlemen of that Board on taking the said Resolve into their serious Consideration, who have there- upon reported their Thoughts to me with so much clearness & strength of Reason, as well as Modesty, in a Paper of which I here- with send a Copy, that I cannot but think it must have great Weight with all who will seriously and impartially consider the same.

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Colonial records of Pennsylvania, Vol. IV, Part 5

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