USA > Pennsylvania > Colonial records of Pennsylvania, Vol. IV > Part 55
Note: The text from this book was generated using artificial intelligence so there may be some errors. The full pages can be found on Archive.org (link on the Part 1 page).
Part 1 | Part 2 | Part 3 | Part 4 | Part 5 | Part 6 | Part 7 | Part 8 | Part 9 | Part 10 | Part 11 | Part 12 | Part 13 | Part 14 | Part 15 | Part 16 | Part 17 | Part 18 | Part 19 | Part 20 | Part 21 | Part 22 | Part 23 | Part 24 | Part 25 | Part 26 | Part 27 | Part 28 | Part 29 | Part 30 | Part 31 | Part 32 | Part 33 | Part 34 | Part 35 | Part 36 | Part 37 | Part 38 | Part 39 | Part 40 | Part 41 | Part 42 | Part 43 | Part 44 | Part 45 | Part 46 | Part 47 | Part 48 | Part 49 | Part 50 | Part 51 | Part 52 | Part 53 | Part 54 | Part 55 | Part 56 | Part 57 | Part 58 | Part 59 | Part 60 | Part 61 | Part 62 | Part 63 | Part 64 | Part 65 | Part 66 | Part 67 | Part 68 | Part 69 | Part 70 | Part 71 | Part 72 | Part 73 | Part 74 | Part 75 | Part 76 | Part 77 | Part 78 | Part 79 | Part 80 | Part 81
"2. As the Governor is not supreanı Magistrate without adding words of Limittation, viz., within this Province, neither has he (if any right) the Sole Right to give Authority of Entering into Ves- sels, &t. The King, we presume, they must allow to have greater Right, so have the Lords of the Admiralty, the Commissioners of the Customs, the Collector of the Customs, &t., and, as we Conceive, so have the Justices of the Supream and County Courts, Sheriffs, Coroners, &t., in many Cases.
" The Governor & Council's fourth Resolve charges the Assembly in these Words :
"'4. That the endeavouring to transfer this Right from the Go- vernor to two Magistrates by a Vote of the House of Representa- tives, is assuming to themselves the whole Legislative Power, and attempting to Divest the Governor of the Executive part of the Government, which is in him only as the King's Representative, and if admitted in this Instance may be carried such Lengths as to endanger the Charter granted to the ffremen of this Province.'
" On this we Observe :
" That if the Matter be rightly understood, we think there is no foundation for this Charge, for whoever will peruse the Resolves of the Assembly in relation to which this Charge arises, will find that they Contain no Words which either do or look as if they were in- tended to give a new Power to the Magistrates, but supposed them already vested with power sufficient. And notwithstanding some of the Magistrates, who are Members of Council, to serve a particular purpose may have thought fit to disclaim this power, by declaring
521
PROVINCIAL COUNCIL.
it is vested in the Governor solely, it is not only what they have sometimes practised, but, as we are advised, is enjoined by Law as their Duty, viz., as often as it shall be necessary to send some Per- son on Board of Vessels supposed to be sickly, to view and report in what Condition they are, and when any infectious Distemper is on Board to prevent their Coming into the City; ffor the Act of Assembly concerning sickly Vessels expressly Provides none shall come within a Mile of any Port, which being a general Prohibition, and no Particular Method Prescribed in which it is to be put Ex- ecution, the Justices in each County not only may but ought to Exert their Authority in the due Execution of this Act; And if contrary to the Tenor thereof any Vessel be brought into any Port in this Province, the Master may be indicted and fined for the Breach of the Act-It being, as we are advised, a general Rule of Law, That where an Act Prohibits a Matter of Public Grievance to the Liberty and Security of the Subject, or Commands a Matter of Public Con- venience, an Offender against it is punishable by Indictment.
" As, therefore, this Right was and is in the Justices of each County, the Assembly's appointing a person whom they declared they would pay as often as the Governor & Council, or any two Justices, &t., thought fit to employ him, cannot be justly called an Endeavour to transfer the Right from the Governor to two Magistrates, as the Governor & Council are Pleased to suppose.
" Besides, to transfer this Right from the Governor must suppose it in him. Whereas, unless it be lodged in him & the Council by Virtue of the Act aforesaid, and not as Supream Magistrate (as he is pleased to stile himself), we are advised there is greater reason to doubt his power as such than that of the City and County Ma- gistrates, ffor by our Constitution he is not entrusted with the Ex- ecution of Laws in his own person, nor hath he power to create new Ofices and Officers without the Consent of the Assembly.
" But what we most Admire at is, that the Governor, in Conjunc- tion with the Council, should publish his seeming Concern for the Preservation of our Charter, when at the same Time he could not but be Conscious to himself of a Complaint he had depending, whereby he Attempts to take from the ffreemen of this Province some of the most valuable privileges granted them by it; And as the Council at the Time of these Resolves knew of this Complaint being lodged, one would think they should rather have Chosen a better Opportunity of Expressing their Care for the Preservation of the Charter if they intended to gain Credit.
" The fifth Resolve of the Governor & Council alledges,
"'5. That the House of Representatives have not any Authority to direct the filing of papers in the Secretary's or any other publick Ofice, without the Governor's Assent to a Law for that purpose.'
" This Resolve, we suppose, alludes to that made in the Assem-
522
MINUTES OF THE
bly of 1741, before mentioned, which provides that Doctor Lloyd Zachary be paid a reasonable Reward for visiting Sick Vessels, &t .; Provided he make such Report in Writing, & Lodge the same in the Secretary's office, &t. Those who have a Right to give, may annex Conditions to their Gifts. The Assembly had the Right to direct where they thought it was fit the Doctor's Report should be lodge'd, and altho' it was not in his power to file that Report (for putting on the file is the act of the Officer, and is a Term we did not Use), it may be in his Power to lodge or leave it there. Whether the Secretary will think fit to receive it or not may be another Ques- tion. If he shall refuse, the Assembly have an easy Method of providing against that Defect, and making the Gentleman sensible of his Duty.
" The sixth Resolve contains these Words, Vizt:
"' That the Supposition of a Default in the Governor & Council in a Matter that so highly concerns the Welfare of the inhabitants of this' province, carrys with it an unjust Reflection both upon the Governor and the Council.'
" On this We Remark :
" The Event has shewn there was great Reason for the Assembly in August, 1741, to provide against a Default, the present Declara- tion of the Governor & Council that they will have no regard to the resolutions of the Assembly proves it; And, therefore, it was well provided by that Assembly, that in such Case they would pay. the Doctor as often as he should be sent by any two Justices of the City & County of Philadelphia, &t. If they Chuse rather to em- ploy a Doctor of their own appointment, it is in their Power, but if they disregard their Duty in Execution of the Act, the fault will lye at their Door.
" But why the Supposition of a fault in the Governor & Council should be asserted to carry with it an unjust Reflection, we are at a loss to Say. The Act of Parliament in the 11 & 12 of W. 3 Cap. 12, recites, That whereas a due punishment is not provided for sev- eral Crimes Committed out of his Majestie's Realm of England, whereof divers Governors, Lieut. Governors, &t., have taken advan- tage, and have not been deter'd from oppressing his Majesty's Sub- jects, &t. To infer from hence that the King & Parliament reflect- ed on all the Governors in America, would be very bad reasoning, and yet it would be equally forcible with the Conclusion drawn by the Governor & Council in the Case before mentioned.
" The seventh and last of their Resolves follows, vizt- :
"""And it is the Resolution of this Board, in Conjunction with the Governor, to take all proper Measures, as we have hitherto done, pursuant to a Law of this Province concerning Sickly Vessels : Pro- vided the Assembly will allow a suitable reward to one or more per- sons, to be appointed as usual, to visit them.'
523
PROVINCIAL COUNCIL.
" In what Manner the Act mentioned in this Resolve has been Executed in Time past we have already taken Notice, and if it be duly executed for the future, we presume it will be agreeable to all the Inhabitants of the Province ; And we make no doubt that what- ever may be incumbent on the House to do on that Occasion will be chearfully performed.
"On the whole, we are humbly of Opinion that to prevent dis- pute concerning the Rights of the Appointment of a Person to visit unhealthy Vessels hereafter, and to amend divers other Defects in this Act, it will be necessary to appoint a Committee of the House to prepare and bring in a Bill for that purpose against the next sit- ting of Assembly.
" And that the House do come into such Resolutions as they shall judge necessary to support the Rights & Privileges of the Repre- sentatives of the ffremen of this Province, and encourage a due Ex- ecution of the act in the mean Time. But it is nevertheless sub- mitted to the Judgment of the House by
" THOMAS LEECH, "ISAAC NORRIS, "ISRAEL PEMBERTON, "JAMES MORRIS, "EDWARD WARNER, " SAMUEL BLUNSTON,
" ABRAHAM CHAPMAN,
"JEREMIAH STARR."
" And accordingly it was
" Resolved,
" That for the Governor & Council to draw in Question, arraign, & Censure the proceedings of the Representatives of the ffreemen of this Province in Assembly met, after the Adjournment of such As- sembly, is assuming to themselves a power the Law hath not in- trusted them with, is illegal, unwarrantable, a high breach of their Privileges, and of Dangerous Example.
" Resolved,
"That if the Master of any Ship or Vessel having Sick passengers on board shall, contrary to the Tenor of the act entituled An Act to prevent sickly Vessels coming into this Government, come nearer than one Mile to any of the Towns or Ports in this Province, or shall land such Passengers or their Goods thereat without License first obtained for the same, as by the said Act is directed, that such Master may be indicted and fined for transgressing the said Act ; And that such Offences may by Law be heard & determined by the Justices of the respective Counties in which they shall be Com- mitted."
All which being read, the Governor desired that a Committee of
524
MINUTES OF THE
the Council might be appointed to Consider of them; and accord- ingly it is
Ordered,
That Clement Plumsted, Samuel Hasell, William Till, and Abra- ham Taylor, Esq's be a Committee to Consider of all the foresaid Matters, and Report their Opinion thereof to the Board at the next Meeting of the Council.
At a Council held at Philada., May 17th, 1742.
PRESENT :
The Honble GEORGE THOMAS, Esqr., Lieut. Governor.
Anthony Palmer,
Clement Plumsted,
Samuel Hasel,
Thomas Laurence;
Ralph Assheton,
Thomas Griffitts,
Esqrs.
William Till,
Abraham Taylor,
Robert Strettell,
The Minutes of the preceeding Council being read & approved,
The Gentlemen to whom the Report of a Committee of the Assem- bly in relation to unhealthy Vessels was referred, made their Report thereupon, which being read & approved, was ordered to be enter'd upon the Minutes, & is as follows :
" The Governor & Council having been pleased to refer to Us the Report of a Committee of Assembly, delivered to the Clerk of this Board, & to require our Sentiments thereupon, Altho' it will be a Journey long & disagreeable to Us to follow that Committee through all their Mazes, we have the more readily enter'd upon it as the in- sinuations & Objections contained in that Report have rendred it necessary to give a fuller account of the ffacts under Consideration to support the former Resolves of this Board, and to assert the Rights of Government against the Invasions of the last Assembly and the Attempts of the present to Justify them.
" The ffacts stand thus :
- " Doctor Græme for above twenty Years before the Year 1738, by the special Order of the Governor & Council, visited Sickly Vessels at the Port of Philadelphia. In that Year the Assembly made him an Allowance of what they thought reasonable for his past Services, justly concluding that if the reward was insufficient they were not to blame, as his own Delay had rendered a particular Examination of those services impracticable; And that Assembly perceiving the Evils that might attend Stale Demands upon the Publick, Order'd the Doctor to bring in all future Accounts Annually, at the same Time acquainting him that if he did not he might reasonably expect to have them disallowed.
525
PROVINCIAL COUNCIL.
" The Doctor by the Governor & Council's Orders continued to visit unhealthy Vessels until the Sessions of Assembly in August, 1740, And then preferr'd the Account mentioned in the Report.
"The whole that pass'd upon it before the Committee or in the Assembly (for nothing appears in their Votes or Proceedings con- cerning it) can be known only to those within their own Walls, and therefore must principally depend upon their Representations be- yond a possibility of Contradiction. But to the Doctor or the Pub- lick upon finding the Amount disallowed nothing could appear but that the Assembly had rejected it without vouchsafing to Assign the least reason for the Satisfaction of either.
" Soon after the Doctor informed the Governor in what manner the Assembly had treated his Account, and desired to be excused from acting any longer in the Employment, To which the Governor re- plyed that he could not in justice require it of him, since the As- sembly had used him so unhandsomely ; And the Governor at the same time expressed his Apprehensions that no Person of Character in the Profession would after such ungenerous treatment be per- swaded to risque his Life or spend his Time in a Service he was not to be paid for, which would Subject the Province and the City in Particular to very great Inconveniences and Dangers ; And from this Time Doctor Græme look'd upon himself as discharged.
"In the fall of that year, during the Governor's frequent Avoca- tions on the King's immediate Business and the Business of the Government of the lower Countries, several Palatine Vessels ar- riving here, suspected to be sickly, the Eldest of the Members of Council that had ever given any attention to such Matters sent for Doctor Græme & desired he would visit them. To which the Doc- tor objected, as conceiving himself an unacceptable person to the Assembly, Since they had refused to pay him for what he had done before. But the Doctor being very earnestly pressed by that Gen- tleman, and observing his uneasiness and the Difficulties he was laid under by the Governor's absence, his regard for the welfare of the Province prevailed, for the present, over the resolution he had taken not to Act more in that Employmt
" On the Arrival of several Vessels in the Spring, 1741, the Gov- ernor order'd the Masters of them to apply to Doctor Zachary & Doctor Bond, and to return both or either of their Certificates of the Condition of the passengers & Seamen on Board; but these Gen- tlemen refused for sometime to undertake the Business. At length they agreed to visit vessels together, for neither of them would con- sent to do it alone.
"Doctor Zachary & Doctor Bond visited all the Sickly vessels that arrived afterwards, untill the Session of Assembly in August, 1741, except one that arrived about the Time of that Session, which Doc- tor Græme visited, upon the Master's promising to make him Satis- faction. Doctors Zachary & Bond being both absent, or under
526
MINUTES OF THE
other Engagements, this Vessel & the Palatine Ships above men- tioned are the six charged in Doctor Grome's account of August, 1741. We shall now consider the Remarks of the Committee upon the ffacts as they have been pleased to State them; And in Order to draw them out of the confusion they are designedly placed in by the committee, we beg Leave to range them under two heads :
"Ist. Charges against the Governor & Council.
"2d. Justifications of the Assemblys in 1740 & 1741.
" Asto the first, the Committee Demands if the Governor & Council did look upon the Doctor to be discharged, why they did not apply to the Assembly for some Remedy, but suffer the affair to lye dormant above a year ?
" To this modest Demand we Answer, that when the Governor had the first Notice of Danger from sickly Vessels, the Assembly was not sitting; therefore if he had inclined to such an Application it was impossible. He had then Expectations of the Assistance of some other Physicians in the Room of Doctor Græme, which he obtained tho' with Great Difficulty; But before that could be ac- complish'd the Distemper broke in upon Us and got past pre- vention.
"Permit Us now to ask what is the Power of an Assembly in the Province of Pennsylvania that the Governor and Council must apply to them for aid to Execute a Law of the Country, a Law which, in respect to the present Controversy, requires their personal Execution ? We have often heard of applications to the Supream Magistrates to remedy Mischiefs or Neglects in the Execution of Laws, But for a Committee of the representatives of the People to question the Supream Magistrate why he did not apply to the Power of the Assembly alone to remedy a Defect in the Execution of a Law, especially when that Defect was occasioned by the voluntary misconduct of the Assembly, is certainly of the first Impression, And we think a bolder Attempt towards Seizing the Powers of Government than ever was made in this Province or any other Part of his Majesties Dominions.
"They next complain of the Governor & Council for not giving Directions to restrain the Ships of Mr. Willing & Mr. Baynton from coming into the Port, which Ships they say were unhealthy & spread the Distemper in the City.
"The Landing of the Passengers from Mr. Willing's Vessel was intirely owing to an Accident. The Ship riding in the Stream re- ceived Damage by an anchor and was Sinking, so that with great Difficulty she was brought to the Wharf, and then the Passengers got on Shore. Their staying on Board at the Wharf could be of no Service, but rather the Contrary, as the Distemper probably would have raged the more from the Confinemt. Mr. Baynton's Vessel arrived at the same time with Mr. Willing's, and we are assured by
(
1
I d
527
PROVINCIAL COUNCIL.
those that well knew the Condition of the Passengers, that their Disorders were Common ffluxes & ffevers. Besides, it is much more probable that the fatal Distemper was brought from the West In- dies than from Europe, whence these two Vessels came, as it is al- most Peculiar to the former, and was known to have raged with great Violence amongst the King's forces at Carthagena & Jai- maica.
" But supposing these Ships did import the Distemper, as they ar- rived when the Assembly had discharged Doctor Grome, and the Governor & Council had no Physician to Examine the Condition of the Passengers, how could they forbid their Landing? their power extends only to Ships importing Passengers afflicted with Infectious Diseases, and without the Assistance of a Skilful Person to distin- guish them from others, it was impossible with any Degree of Justice to exercise that Power.
" It is with great Surprize we observe another Charge of the Com- mittee against the Governor & Council, for declaring they could not regard Reports of Doctor Zachary under the Assembly's appoint- ment, tho' they thought him Qualified for the Service, To which they subjoin this Reflection, 'How far such a Disposition has a ten- dency to the peace & welfare of the Province or to the Acquittal of themselves from all Imputation, if further Ill Consequences should attend imported Distempers hereafter, required no observation of their's to demonstrate.'
" Surely these Gentlemen imagine that the Disturbances between Right & Wrong and the Welfare or Misery of the Province de- pend upon a Conformity & implicit Obedience to their Arbitrary Diction. The Governor & Council have Power given them by Law over sickly Vessels coming to Philadelphia, and Consequently must have the Right of imploying such Persons as they Confide in to make Reports Concerning them. They appoint Doctor Græme for this purpose, and the Assembly refuse to pay him, for which reason he declines the Service. The Assembly contrary to & in Contempt of the Law appoint another, and declare they will pay him, and then according to the Committee's reasoning The Governor and Council interrupt the peace and welfare of the Province if they do not tamely give up their Right and Submit to the Assembly's appoint- ment. By the same Rule the Assembly need only refuse to pay the Judges of the Supream Court, the Attorney General, the Secretary, or any other Officer now in the Governor's Nomination, whose Salary's are paid out of the Publick Money, and upon their re- signing for want of Satisfaction if the Assembly appoint others whom they say they will pay, it shall be incumbent on the Gover- nor & the people to acquiesce under the Usurpation. Incroach- ments have been sometimes Yielded to rather than occasion publick Distractions & Calamities, but it is a rarity to hear the Aggressors demand Submission from the injured, merely to avoid the Confu- sion & Misery's they themselves are wildly introducing.
1
528
MINUTES OF THE
"We pass now to the Reasons given to Justify the Assembly's Conduct.
" The Committee say the Assembly in the Year 1740 were in- duced not to pass the Doctor's amount that Year, because it did not appear in the Account what were the Names of the Vessels or of their Masters, whether they were sickly or not, and by whose Or- ders he visited.
" If we are to understand from the Committee that the Assem- bly rejected the Doctor's Account because he had not charged his Services in a very particular Manner, & said expressly by whose Orders he visited each Vessel, we can only say the Suspicion of an unjust Charge was very extraordinary, whether we consider it with respect to the smalness of the Sum, the known integrity of the Doctor, or the Trust reposed in him by an important Office in the Administration of Justice. But if we are to regard the Sentiments of the Assembly in August, 1741, these were not the reasons of rejecting the Amount, for that Assembly could require nothing but proof of the general Appointment, because they paid him not ac- cording to the particular services, but a gross Sum or Salary of five pounds per ann.
" But the unanswerable Charge against the Assembly for reject- ing this Account is, that they never acquainted the Doctor with any objections made to it either at the Time of presenting or afterwards, altho' he was in the Town with them. Half an hour was sufficient to have given the Doctor Notice to attend them, & for him with ease to satisfy all their Doubts. Therefore we must believe they chose to disallow the account silently rather than in a public man- ner, least the true Reasons for rejecting it should appear to the World. Yet, fortunately, the Silence has not been entirely pre- served, for it was soon made Public that in the Debates upon the account it was said, 'Let those pay Doctor Grome that employ'd Him,' without the least Contradiction from any Member present.
" They say they postponed his account till next Year; but with what Certainty could they conclude they should ever have an Oppor- tunity of sitting there again to do him Justice, unless they im- agined they had so firm a possession of the People as nothing could shake or alter. Besides, it was well known to several Members of that House that a stronger Argument could not be Used against a Public account than that it had been before a former Assembly & was not allowed. The delay of Right is a Denial of Right; and to pass over the Reflection contained in suspending the Allowance As if the account was unjust, refusing the Doctor his Money then due for Reasons that they might but could not hear his answer to, was condeming him unheard, which all Mankind will agree is the high- est Injustice.
" Again, they say Doctor Græme did not look upon himself to be discharged, because he exhibited his account down to August, 1741.
t t h
ra th
529
PROVINCIAL COUNCIL.
" The six Vessels mentioned in this Account were visited by the Doctor, as we said before, ffive in the ffall, 1740, at the importunity of one of the Council, the Governor not being in the Way to ap- point another Doctor, and one in August, 1741, on the promise of the Master to pay Doctor Grome himself if the Assembly would not. But between these Times the Doctor never acted, ffor the Mas- ters of Vessels were directed to apply to Doctors Zachary & Bond, therefore the Committee's Observation is wide of the Matter.
" Having finished what we proposed under the preceding Heads, we come now to Consider some ffacts & Arguments that lie scat- tered over the Report.
" And first, as the following paragraph seems to us remarkable, as well for the Mode of Expression as for the Matter, we shall insert it at length :
"' 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 remem- ber 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 inform'd) that it was no other than a common Ship Distemper, was admitted to come up to the City, but by its spreading it soon ap- peared Malignant, and the Vessel was ordered away from the port. In this instance the Governor & Magistrate acted a part that be- came 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.'
Need help finding more records? Try our genealogical records directory which has more than 1 million sources to help you more easily locate the available records.