USA > Pennsylvania > Colonial records of Pennsylvania, Vol. IV > Part 54
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" As the Contents of our Last Message relating to the Building an Hospital or Pest-House for sick Strangers seems to have given the Governor Content, it would be needless to add any thing on that Subject at this Time. But since we are not so happy as to have given equal Satisfaction in every other part of our Message, we must desire to be excused in returning this to remove those Mis- takes which, by the Construction the Governor has been pleased to put on some part of that Message, it is apparent he either is or would seem to be under.
" The Governor's bewailing the Loss divers ffamilies in this City had lately sustained by the Spreading of an Infectious Distemper, led us to observe, 'That a due Execution of the Laws might in part have prevented it;' ffrom hence the Governor takes Occasion to tell us, that 'whilst the German petitioners complain that many have lost their Lives by being confined to the Ships, we Express our Dis- satisfaction that the Laws have not been executed,' that is, as the Governor is pleased to suppose, ' that sick passengers were not Con- fined to their Ships.'
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" If a due Execution of the Law necessarily required that sick passengers must be Confined to their Ships, there had been some Colour for this Supposition, but if the Law might have been duly executed without such Confinement, the Supposition is altogether Groundless.
"The Governor, in his Speech to the Assembly in 1738, among other Things was pleased to tell them 'That the Law to prevent sickly Vessels from Coming into the Government had been strictly put in Execution ; that the Masters were obliged to land such of the passengers as were sick at a distance from the City, and to Con- vey them at their own Expence to Houses in the Country conveni- ent for their Reception.' The Governor at that time not only thought a 'strict Execution of the Law necessary,' but that even by execu- ting the Law strictly, ' Masters of Vessels were obliged to Land such of the passengers as were sick at a convenient Distance from the City, and to convey them at their own Expence to Houses in the Country convenient for their reception.' The Law is the same at this Time it then was; And if the Method then taken by the Governor was consistent with a Strict Execution of the Law in his own Sense, why should he suppose it to be otherwise at this Time in Ours ?
"That the Assembly of 1738 (which was composed of divers of the same Members as the present) did, in their Address, acquaint the Governor ' that they had a grateful sense of his Care in putting the Law in Execution for preventing sickly vessels coming into the Government,' is very true; But does it, therefore, follow that no Slackness, no failure, hath happened in the Execution of the Law since that Time. We own that if the Governor hath, ever since the year 1738, taken the same Care and ' the very same Measures' as before, his Merit must be the same now as it then was; And whenever he is pleased to give Us Demonstration of this we shall as chearfully make grateful acknowledgmts- for the part he hath act- ed as the Assembly at that time did ; and yet it not only may, but we think on Examination will appear that the Law before mentioned in one or more late instances hath not been duly put in Execution, And therefore we shall have just occasion to enquire at whose Door the failure ought to lye. If this Enquiry and our undertaking to support the Resolves of the last Assembly to which the Governor is pleased to allude, will Afford him any Occasion of Joy, he will be gratified.
"'Accusations and Complaints,' the Governor is pleased to say, 'are no new things to him,' and with his Leave we would Add nor ought to be so whilst the Causes of them remain. But why they are mentioned on this Occasion the Governor best knows. If it has been to take an Opportunity of publishing his Integrity and the advantageous Light in which, in his own Opinion, he appears to his Majesty & his Ministers, altho' we have no other Credentials to
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support it than his own, Yet being unwilling to detract from his Merit, we shall leave the Governor in possession of all the Applause he has thought fit to bestow upon himself, and are content to forego his thanks for a favour to which we claim no right.
"We must, however, be allowed to add, that it will be difficult to perswade the freemen of this province there are any thanks due from them to his Integrity, until he shall be able to reconcile his repeated & solemn promises of supporting Us in our Religious & Civil Liberties with the Late clandestine Attempt he has made to deprive Us of both.
" As to the State of the public Treasury, in which the Governor is pleased to differ in Opinion from Us, tho' we observe he changes the Terms of the Question between Us, it is a matter of too little Consequence to take up his or our own Time about. The Contents of our former Message, on the nicest scrutiny, he will find to be true, and it will be easy to demonstrate that there was no point of Time, either in the Year 1738 or any Time since, in which the Province has been less able to build the Hospital proposed than at the present, The reason of which must be evident to any one who will reflect on the Expences the Province has lately been at, which we think was justly termed great as well as unusual.
"The Governor, indeed, is pleased to say that we have Stopped £1,500, part of this unusual Expence, out of his support; but he may remember that since his Accession to the Government he hath received divers sums of Money, arising by ffines, fforfeitures, Li- censing publick Houses, and other perquisites of Government, amounting, from the best Judgment we can form, to near £1,000 annum, some of which he hath no right to, and double the yearly Sallary some of our former Governors received. Besides, when the Governor was pleased to Enumerate some of the Articles in which this unusual Expence consisted, he might (with others of less Mo- ment) have added one of upwards of &1,400 more than he hath mentioned, payable to the proprietors the last & present Year. The article of £3,000, given to the King's Use, was chearfully & unani- mously given, how generously let others judge. But the Governor can best inform Us what purpose it was intended to serve, and how consistent it is with those great professions of Loyalty & regard to the Crown he has sometimes boasted of, to represent the Money thus given as if it were Alms to be distributed amongst some of our fellow Subjects in Distress. However, if we judge rightly, the Effect it is intended to have may easily be guessed at and is little to be feared.
" In the year 1738 advertisements were published enjoining such who had contracted for Lands with the Proprietors by a time pre- fixed to fulfil their Engagements, and that those who had settled on their Lands without Leave, should apply & agree for the same or that they should be turned out of their possessions ; the Time being & VOL. IV .- 33.
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near Expired, divers of them Petitioned the Assembly of that year praying their interposition & good Offices to procure them a longer Time. The Assembly in Compassion to their Circumstances accord- ingly addressed the Proprietor and did obtain longer time. To In- duce the Proprietor with more readiness to grant the Indulgence, the Assembly in that address declared they would, at a proper Time, join with the Governor in any Act that might be judged necessary for protecting the property of the Proprietors and others from the unjust Intrusions not only of such persons who were in the Province, but against foreigners after to be imported.
" This must manifestly appear to be the intent of their Address to any one who will be at the Trouble impartially to peruse it, with the Proprietor's answer, ffor he not only approved of the Assembly's proposition but promised 'he would in the most effectual Manner recommend it to the Governor to join with the Assembly in all Acts necessary for those good purposes.' Now, what can be more unrea- sonable than to suppose that the Assembly at the time they were addressing the Proprietor for a favour to fforeigners should have so great a Dislike to them as to be against the future Importation of them ; Or that the Proprietor should agree to such a proposition in the Sense the Governor contends for, when it is evident the greater the number of people which come into the Province the more the Proprietor's Interest is advanced. Be this as it will, we have already declared all we understand the Assembly at that time had in View. It is true there has been a considerable Change in the Members of the Assembly since that Time, and those who had the Principal Conducting of that Affair (now no Members of our House) but such as we presume have since had no small Share in the Governor's Con- fidence, who for ought we can say may have had & communicated to him their different Views. If these be the persons who looked with jealous Eyes on the Germans, as it is more than we know, so we think ourselves under no Obligations to justify their Conduct.
" Signed by order of the House. "JOHN KINSEY, Speaker. "11th mon. 16, 1741."
The Governor then laid before the Board a copy of a Report of a Committee of the Assembly, with the Resolves of the House there- upon, both attested by their Clerk, which are as as follows :
" We have, in Obedience to an Order of the House, taken into our Consideration the Resolves of Council, dated the 14th of Sep- tember last, & some time after published in the Weekly Mercury, & although we look back with Concern on some unhappy Disputes in which our late Assemblys have been necessaryly engaged, and are humbly of Opinion it will be prudent to avoid them as much as may be for the future, yet as the Resolves referred to our Consid- cration highly reflect on the Conduct of the last Assembly, & con-
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tain divers Matters which we Conceive are destructive of those Liberties & Privileges the ffreeman of this Province have Right to Claim, it will become the House to take proper Notice of them. We can by no means perswade our Selves it was the Unanimous act of that Board, and even such of them who may have Assented to those Resolves whenever they are pleased cooly to re-consider the same, will find sufficient Cause to alter their Opinions.
" In order to introduce our sentiments of what is fitting to be done therein, it will be necessary to State the ffacts in a true Light, to observe wherein we apprehend the Governor & Council are mis- taken, and then to make such Remarks as have occurred to us in considering those Resolves.
" And first as to the ffacts :
" That Doctor Groeme for many Years before our present Gov- ornor's Arrival, was appointed by the Governors for the Time being, with the Consent of the Council, to visit unhealthy Vessels, may be true, and that he might be continued in the trust by the present Governor, with the Consent of his Council, from whom or from some of the Magistrates, as we have ever understood it, the Doctor was to take his Instructions both when and what Vessels to Visit.
" Doctor Græme, in the Year 1740, did Exhibit an Account to the then Assembly, in which the Province was charged in the words following, viz": To going on Board Visiting & reporting to his Honour, the Governor, the State and Condition as to Sickness & Health of six Palatine Vessels, and one with Negroes from South Carolina, at a Pistole each, £9 16s.
" When this Account came to be Considered in the House, it was objected that it did not appear who the Masters of those Vessels were, nor what the names of the Vessels so visited, without which the House were not furnished with the proper Means of enquiring into the Services done, or to judge of the Recompence due for them ; neither did he make it appear to the Committee to whom his Ac- counts were referred, that those Vessels he had visited were sickly, nor that he had any Orders either from the Governor & Council or * from any of the Majistrates, to visit them, without which the As- sembly were of Opinion that the Doctor could claim no greater Right to make such a Charge against the Province than any other Person ; and further, that it ought not to be left either at the discre- tion of the Doctor or any other persons employ'd in that Service what Vessels to visit, otherwise every Vessel which came into the Province might be visited, and by that means a great and unneces- sary Charge brought on the Publick. These reasons induced the House not to pass his Account that Year.
" In the Year 1741 Doctor Græme again exhibited the same Ac- count, together with another for like services, amounting to £8 8s, both which are there said to be done by Order of the Governor &
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Magistrates until August, 1741. But what Vessels he had thus visited he did not give any satisfactory Information, save as to ene.
" On these two Accounts the Assembly allowed him £10, which is in Proportion to the Payment made him for like Services by the Assembly of 1738. And if what we are informed be true, the Masters of the Vessels visited have usually made Considerable Al- lowance to the Doctor besides.
" How regularly the Doctor attended the Service, or how great the Care of the Governor & Council hath been in respect to Sickly Vessels, we shall leave others to judge. Yet some of Us do re- member that a Palatine Vessel with sick Passengers on board came into our River in the Year 1738, and on the Doctor's Report (as we are informed) that it was no other than a Common Ship Distemper, was admitted to come up to the City; but by its spreading it soon appeared Malignant, and the Vessel was Ordered away from the Port. In this instance the Governor & Magistrates acted a part that became them, for the infection of the Distemper after appeared in one remarkable Instance to the Southward of this City, where a Person who received some of those sick people into his House was with most of his ffamily taken away by the Distemper.
"The Governor & Council are further pleased to say, 'that since the Assembly desired to pay for those services, not only the said Doctor Græme has for the most part declined performing them, but Doctor Lloyd Zachary & other skilful persons of the same profession have refused to visit Vessels suspected to be sickly, upon Application made to them by the Governor's Order, whereby unhealthy Ships have come to this Port & Landed many persons afflicted with the Mortal & Contagious Disease now in this City, &t., ffrom whence it is the Opinion of this Board that the present Mortality is chiefly owing to the Conduct of that Assembly, who, in Effect, discharged Doctor Græme from so necessary a Duty without even attempting to get his place supplyed by another, &t.
"On this very remarkable Paragraph we beg leave to observe:
"1. That when we consider the Time & uncommon Manner in which these Resolves were published, we are inclined to believe they were calculated to influence the Elections on the first of October following.
"2. The Assembly did not deny to pay Doctor Græme. In our Opinion he has been fully rewarded for the Services he did. It is true that the payment was postponed for some Time until Enquiry was made whether the Services were done by proper Authority. If in this Instance too great a Regard was shewn to the Governor & Magistrates, they at least may excuse it.
"3. Doctor Græme, on exhibiting his last Account in the 6th Month, 1741, intimated his Desire of being excused from the Ser- vice, before which Time the Assembly had done no Act to discharge
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him, and the mortal Distemper having then spread in the City, that no Care might be wanting on their part to remedy the Neglect which Evidently appeared, the Assembly the same Session by their Re- solves, dated 22d 6th Month, 1741, did nominate Doctor Lloyd Zachary to the Service. If the Governor, Council, & Magistrates do not think fit to Employ him, the Consequences which attend it must lie at their Door.
"4. Doctor Græme in his Account charges the Province for Services done to August, 1741. This Shews he did not look upon himself to be discharged at that Time, and this must also have been the sentiments of the Assembly or they would not have paid his Account for those Services.
"5. That if the Governor & Council did look upon the Doctor to be in Effect discharged in 1740, And had the Good of the Province so much at Heart, as they would have us believe since other Phy- sicians had refused to visit Sickly Vessels on the Governor's Appli- cation, Why did they not apply to the Assembly for some Remedy, but suffer the Affair to lie Dormant for a Year? And why should they suppose the Doctor look'd upon himself to be discharged merely because his Account was unpaid for one Year, when by his Peti- tion presented in 1738, recommended by the Governor, he had been silent in point of any reward for upwards of twenty Years?
"6. That some unhealthy Vessels did come into the Port is true, particularly one of Charles Willing's, another of Peter Baynton's, and the Passengers brought on Shore from one or both of these Vessels lodged in divers parts of this City, by which Means, from the best Accounts we can get, the late Mortal & Contagious Dis- temper was spread in this City; and no Directions were given by the Governor, nor any care taken by the Magistrates, that we could ever learn, concerning it. To the want of Care in these Instances, therefore, Principally in our Opinion (and not to any Conduct in that Assembly), it was that the spreading of the late Mortal Dis- temper was owing.
" The Governor & Council further say, 'the Duty of our Stations and the Trust reposed in Us by a Law of this Province concerning Sickly Vessels, and the Acquittal of our selves from all Imputation if further ill Consequences should attend imported Distempers here- after, oblige Us to declare that the above appointment by the House of Assembly (of a Person to attend sickly vessels) is unprecedented, illegal, and unwarrantable; And therefore this Board cannot regard the Person so appointed, or any reports by him made, altho' in every other respect they think him well qualified for the Service.'
" This Paragraph, and part of a former, make the Governor & Council in Effect to say, that though Doctor Græme has, for the most Part, declined to visit Vessels, And altho' Doctor Zachary, if duly appointed, would be a person every way qualified for the Ser- vice, Yet the Duty of their Station and the Trust reposed in them
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by a Law of this Province, oblige them to declare they neither would appoint him nor regard his Report, meerly because the Assembly have nominated him.
" How far such a Disposition has a tendency to the Peace and welfare of the Province, or to the Acquittal of themselves from all Imputation if further ill Consequences should attend imported Dis- tempers hereafter, requires no observation of ours to demonstrate.
" What renders this Disposition in the Governor & Council the more inexcusable is, that it must be plain from the Tenour of the Resolves of Assembly, that (whatever their Power may be) they were not intended as an Appointment of Doctor Zachary to visit sickly Vessels, exclusive of the Power of the Governor or some of the Magistrates, since his service in visiting Sickly Vessels is . expressly limited to be as often as he should be thereunto directed by the Governor & Council, or on their Default by any two Justices of the City & County of Philadelphia.
" And even were it admitted that the Assembly had mistaken their Power and made a Nomination not warranted by Law, we are clearly of Opinion that for the Governor & Council (who are not a Court of Judicature, nor the latter by our Constitution any part of the Legislature) to Assume to themselves a Power the Law never intrusted them with, thus publickly to Arraign & Censure the Conduct of the Assembly was illegal and unwarrantable, a high breach of their Privileges, and of Dangerous Example.
" We next proceed to Consider the Resolves of the Governor & Council, which Are seven in number, and to prevent the Supposi- tion of any design to wrong the sense of them we have first inserted the Resolves separately at large, then subjoined our Remarks upon them.
"Their first Resolve runs thus :
""'That the Government of this Province being unquestionably in his most Sacred Majesty the King & those who have authority under him, the Representatives of the People in Assembly, altho' part of the Constitution & Legislature, have no right to Exercise any Acts of Government, nor can they direct or controul any Ma- gistrate or Officer, not even a Constable, or enlarge or create powers in them or others in any Case whatsoever.'
"On this Resolve we observe :
" That although the Government of the Province is unquestion- ably in the King and those who have Authority under him, it does not Operate against the Powers of ye Assembly, since they Claim none but such as are derived to them by their Charter & the Laws of the Province from the Crown. The residue of the Resolve we Conceive contains two Mistakes :
"'Ist. The Governor & Council Assert :
" The Representatives of the People in Assembly althe' part of
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the Constitution and Legislature, have no right to Exercise any Acts of Government.'
" The powers of Government are divided into Legislative, Execu- tive, & ffederative. Legislative, or the power of making Laws, is one of the highest Acts of Government, And if the Assembly be allowed (as they undoubtedly are) a part of the Legislature, every Act they do in Legislation is an Act of Governm'; ffurther, if the Assembly are a part of the Constitution, as the Governor and Coun- cil say, they must be a part of the Government, for as we take it, Constitution & Government in the sense they Use them are synoni- mous; And if a part of the Government, the Acts they do are Acts of Government. Besides, the Assembly only have the power by our Laws of making some Officers and the payment of many, which we understand to be Acts of Government.
"2d. They add, 'Nor can they (the Assembly) direct or controul any Magistrate or Officers, not even a Constable.'
"By Magistrates in this place we understand judicial Officers, as to whom we Conceive the Law is the Rule by which they are to Conduct themselves, and no direction or Attempt to Controul them in doing Justice is lodged either in the Governor or Assembly ; But if they transgress those Rules either by not doing their Duty or in exceeding their Duty, there can be no doubt but that by our Constitution the Assembly, when they think it necessary, may im- peach such Offenders in order to bring them to Justice, which also shews the Assembly have a Share in the Executive Part of the Laws.
" As to the Power of directing other Officers the Governor & Council are also mistaken, ffor
" 1st. We have divers Oficers of our own, our Clerk, Serjeant, & Doorkeeper; our power to direct and Controul these has never been disputed that we know of.
"2d. The Assembly by the Laws of the Province are in many Cases Authorized to Command divers other Officers on sundry Oc- casions.
"3d. Whenever it shall become necessary either for the preser- vation of the Public Peace or in many other Cases that might be mentioned, if we may be allowed to follow the Example of the House of Commons or the Practice of former Assemblys, it will be difficult to maintain that the Assembly have not the Power to Command both Sheriffs, Constables, and other Officers as occasion may require, and to Punish their Disobedience to such Commands.
" The second Resolve of the Governor & Council runs thus :
"" That the Authorizing Persons to enter Ships or Vessels is an important Act of Government not within the power of the House of Representatives, nor can the Master of a Vessel be compelled to ad-
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mit a person under their Authority to come on board, or inspect the Condition of the Passengers & Seamen.'
"On this we observe :
" Ist. That the Authorizing Persons to enter Ship or Vessels may in some Cases be an Act of Government, in many Cases not so. The Assembly have not had any Occasion to claim such a Power, tho' we think it possible to put Cases in which it might be. justifiable for them both to Claim and put it in practice.
" The third Resolve sets forth :
"'3. That the Governour, as supream Magistrate, has the Sole Right to give such An Authority, which in this Case has always been Exercised with the Consent of this Board.'
" On this we Observe :
"1. When the Governor & Council will be pleased to reconsider this Resolve we Presume they will think it expressed too generally and not the most safely. We ever understood our King to be Supream Magistrate, and for any other to Claim that Authority without any words Limittation, does not demonstrate that Duty and Loyalty which every Subject owes to our Sovereign.
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