Colonial records of Pennsylvania, Vol. IV, Part 56

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

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"The beginning of this Paragraph apparently Shews an inten- tion in the Committee to lay some Blame on the Governor & Coun- cil as well as on the Doctor ; But, as in the latter part, they have been pleased to say that in this Instance the Governor & Magis- trates acted a part that became them, we are at a loss to know where they did not in this Instance act a part that became them. It is pretty plain that the ordering the Vessell away from the Port is the part meant that became them, and, therefore, the part in which they leave others to judge how great the Care of the Governor & Council hath been, must be their admitting a Vessel to come up to the City upon the Doctor's Report that it was no other than a Common Ship Distemper. Now suppose that was really the Case, will the Committee say that the Governor & Council were to blame for admitting. a Vessel to come up to the City which the Doctor reported had no other than a common Ship Distemper ; that is, a Distemper which could not endanger the health of the In- habitants ? surely not. But we are willing to excuse any Embar- rassment that may appear in the Committee's Manner of expressing themselves, when they had a Task so unusual and so much against VOL. IV .- 34.

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their Inclinations to perform as that of declaring their approbation of the Governor & Council's Conduct in any one Instance.

" They have been pleased to tell the Public in the same Paragraph that some of them do remember that a Palatine Vessel with sick Passengers on Board came into our River in the Year 1738. How- ever true this is, we do not think it any extraordinary instance of the Goodness of their Memorys, for we do remember that several Palatine Vessels with Sick Passengers on Board came into our River in the Year 1738, and that the Assembly soon after thanked the Governor for his great Care of the health of the inhabitants. The Committee have not been quite so positive about the Doctor's Re- port, for to that they have carefully added (as we are informed). But do the Committee think they are blameless in giving credit to any sort of informations from any sort of Informers, where the Character of a Gentleman is concerned who has been a practitioner in this City for above twenty years, with the Reputation of great Skill & Integrity in his Profession. To the generality of mankind Reputation is one of the dearest Things in Life, but when it stands in the way of the Committee, their Common reserve, as we are in- formed, is thought sufficient to justify them in the most publick Attack upon it.

" But before we leave this Paragraph we must take the Liberty to say, that altho' the Committee may have been informed they were not truly informed, for the Palatine Vessel that came up to this City in 1738, with the malignant Disease which destroyed the ffamily to the Southward of this City, and was order'd down again, came directly to the Wharf (Mr. Allen, the Owner of her, being then out of Town) before any inspection made by the Doctor into the Condition of the Passengers, and consequently without any Re- port to the Governor & Council before she came up, for which, after the Doctor's Report that She was sickly, the Master was laid under an Arrest by a Warrant under the Governor's hand, & obliged to remove her immediately to the Distance of a Mile from the Town, as the Law required.

" The Committee grown fearful of having Acted out of Character in Commending the Part the Governor and Council had acted, even in one Instance, and in saying the Assembly had postpon'd (as they call it) the payment of Doctor Græme's account until enquiry was made whether the Services were done by proper Authority, have by way of Apology for these Mistakes, told Us that if too great a Re- gard was shewn to the Governor and Magistrates, they at least may excuse it. But we are of Opinion they might have saved themselves the Trouble of this Apology, since whoever is endowed withi so great a Stock of Patience as to read their report will be so farr from ac- cusing them of having shewn too great a Regard to the Governor & Magistrates, that they will rather wonder at their having shewn so little regard for themselves or for the Body of which they are Members.

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" Again, they say if what we are informed be true, the Masters of the Vessels visited have usually made considerable Allowance to the Doctor, besides what he received of the Assembly; but permit Us to say y+ if what they are informed be or be not true, this is the most unjust Manner of Charging any Person that the worst of Pas- `sions can invent. Does it become the Honour of a Committee of the representative Body, under the Umbrage & Shelter of Publick Proceedings, to blacken & wound the reputation of their Neighbour upon hearsays & Informations. All that we can say to the Truth of it is, that the Doctor denys the Charges, and Challenges the Com- mittee and their Informers to Prove the ffact in a single Instance.

"The Committee alledge that the Assembly in 1741 fully re- warded Doctor Græme for what services he did, by giving him five Pounds a Year, because the Assembly in 1738 allow'd him the like Sum for twenty years before.

" We cannot comprehend the Equality of this reasoning; it is well known that the Danger & Trouble of visiting sickly Vessels have much increas'd within a very few Years, both by the greater Malignity of their Distempers & the Numbers exceeding what they formerly were; And is their not a manifest difference between an Old account of twenty Years' Standing, which ought to have been divided and preferred annually, And a single Account for the Year last past. Upon the former it seems reasonable to allow the least that could be deserved, because the persons own neglect prevented a possibility of enquiring into the particulars of his Service, but on the latter he has a right to a full Compensation, as the Charges are capable of a clear Examination ; And now we Submit it to the de- termination of the Public, whether the man who risques his Life for the Preservation & safety of the inhabitants of the Province, does not deserve more for a whole Year's Service than one-half, or perhaps one-third Part of the Publick Money spent in drawing the Report now under our Consideration.

" We shall close our Observations on this part of the Report by joining two of their assertions together, as we think one Answer may suffice for both.

" They say ' they are inclined to believe the Resolves of the Gov- ernor & Council were published to influence the Elections on the first of October following;' And in another place declare 'that for the Governor & Council to assume to themselves a Power the Law never entrusted them with, Publickly to arraign & censure the Con- duct of the Assembly, was illegal & unwarrantable, a High Breach of their Priviledges, & of dangerous Example.'

"To lament our unhappy Divisions, and at the same Time use all arts to Excite & inflame then, is now become a practice too Common. The Council enter'd into the Present Controversy with reluctance ; And when it is considered that the Assembly began it by their Resolves in August, 1741, plainly insinuating a Default in

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the Governor & Council in the Execution of a Law so often men- tion'd, which had occasioned the Mortality among the People, we doubt not they will stand excused in the Eyes of all indifferent Men for defending themselves from so unjust an Imputation. Much respect is due to the Representatives of the People when they act agreeable to the Trust reposed in them. But we apprehend no Powers upon Earth are or ought to be so Sacred as to Control Truth & Justice unanswer'd by the Persons they misrepresent or injure. As to the design of influencing the approaching Election, it will appear entirely groundless when it is observed that the As- sembly's resolves were published in August, 1741, And those of the Governor & Council in September next following, which was but a reasonable Time carefully to prepare them. With much greater probability may it be supposed that the Assembly's Resolves were calculated to influence the Election as they were Voluntary, those of the Governor and Council of Necessity, as the Members of that Assembly met with no Opposition at the succeeding Election, And as they had a Blot to wipe out which might justly have Affected them in the Opinions of the People at that Election, and particularly in this City, where the ill Effects of the Sickness were more severely felt than in other Parts.

"We proceed now to say something in support of the Resolves of Council :

" The Committee having been pleasd to allow that the Govern- ment of the Province is ungestionably in the King and those who have authority under him, there is no diffierence between us on this part of the first Resolve, but that the Late Assembly did both Claim and Exercise such powers as were not derived to them by by the Charter from the Crown or the Laws of the Province, we shall hereafter make appear.

" Of that part of the Resolve which asserts that the Representa- tives of the People in Assembly, altho' part of the Constitution, have no right to Exercise any Acts of Government, the Committee have been Pleased, by way of Confutation, to furnish us with the Title of a Chapter out of Mr. Lock's works, wherein he undertakes to Treat of the Legislative, Executive, & ffederative power of the Commonwealth, with this Difference, however, that they have sub- stituted the Word 'Government' for 'Commonwealth,' tho' without any Judgment either for want of Understanding or duly Considering the Reason given by the Author for his Choice of the word ' Commonwealth' preferably to any other; But they seem to have apprehended that 'Commonwealth' might have an exception- able or odious sound to some, & therefore would not Cover their Designs quite so well. The Chapter itself is much less for their Purpose, for this Great Man says that altho' the Legislative Power is in the Hands of several Persons who duly assembled have a Right to make Laws, Yet as there is no need that the Legislative Should

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be always in being, not having always Business to do, and be- cause it may be too great a Temptation to humane frailty apt to grasp at Power, for the same persons who have the Power of making Laws to have also in their Hands the power to Execute them, and as the Laws, tho' made in a Short Time, have a constant & lasting force & need a Perpetual Execution, It is necessary there should be a Power always in being which should see the Execution of the Laws that are made & remain in force. Had the Committee, we say, gone further than the Title, they must have concluded that it is necessary the Legislative & Executive Power should be in Differ- ent Hands, and by applying this to the British Constitution (of which this is an Epitome) they would have been Convinced that as the Executive Power here is in the King and those who have Authority under him, that is in the King's Representative, the Assembly cannot have any Right to Exercise Acts of Government.

" As the Distinction between Constitution & Government seems likewise too difficult for the Committee, we chuse in support of this part of the Council's Resolve to referr them to that celebrated His- torian and profess'd advocate for the Liberties of the People, Bishop Burnet, who says concerning an Act then under Debate, 'That the Clause of maintaining the Government in King, Lords, & Com- mons, was rejected with Great Indignation, since the Government was only in the King, the Lords & Commons being indeed a part of the Constitution & of the Legislative Body, but not of the Govern- ment.' The Historian who was himself at that Time one of the House of Lords, adds, ' this was a barefac'd Republican Notion, and was wont to be condemned as such by the same persons who now pressed it.' If we may be allowed to add any thing on this Point after the Judgment of the Lords & Commons, it shall be only to observe, That as a Government was never thought to have been dis- solved by the Dissolution of a Parliament, nor the People to have been without Government in the Time intervening between the Dis- solution of one Parliament and the Meeting of another, The Gov- ernment must consequently be in the King only, and the Lords and Commons, altho' Part of the Constitution and of the Legislative Body, not a Part of the Government.

" We shall not dispute the Assembly's Power to Chuse, Direct, Controul, or pay their Clerk, Serjeant, and Door-Keeper, that is, their immediate Servants, but that these are Acts of Government, And that therefore the Assembly is a Part of the Government, is a Discovery Quite new to Us and to the World. If the House of Commons are no Part of the Government who provide for the Civil List and raise money for the Payment of all the King's Officers, and it is a Republican notion to think they are, with what Propriety can it be said That because the Assembly pay some Officers of the Government & the Servants of their House, that these are Acts of Government, and consequently the Assembly a Part of the Govern

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ment. It may with as good Reason be said that when the Assembly paid the Governor's Sallary they were Governors themselves. Upon any Laws made here that can Countenance the Assembly's Claim to a part of the Government, we must suspend our Opinions until we are informed what those Laws are. It would be engaging in the. Dark (a Kind of Combat the Committee appear to be extreamly fond of ) to suppose they meant any particular Laws, when it will be always in their Power to Contradict Us; Therefore, at Present we think it Sufficient to declare that we know of no Laws here that. Vest the Assembly with any Powers of Government, Nor have we heard that any Assembly of this Province ever claimed a Share in those Powers under the Laws, or by any other Means whatsoever, until the Report of this Committee appear'd; And for the same reason we decline saying any thing on the Contrariety of such a Claim to the Royal Charter, which expressly enjoins That the Laws be consonant to reason and not repugnant or contrary, but as near as conveniently may be agreeable to the Laws, Statues, & Rights of the Kingdom of England.

" The Committee have gone from the Point in the latter part of this Resolve, which is not whether the Governor can, but whether the Assembly can direct or Controul Majestrates or Officers. The late Assembly took upon them to do it contrary to Law. When the Governor undertakes to direct or Controul we doubt not but that he will, agreeable to his usual Caution and his regard for the Laws, take care to do it upon very good grounds, and in such Cases as he is by the Constitution or by Law intitled so to do.

" But the Committee have been pleased to inform Us, in Support of the Assembly's Power, that they may impeach Offenders; that they can direct and Controul their own Clerk, Serjeant, and Door- keeper, and that by the Laws of the Province they are Authorized to Command divers other Officers on sundry Occasions, and that after the Example of the House of Commans & former Assemblys they may Command Sheriffs, Constables, & other Officers, and punish their Disobedience to such Commands.

" We should have been glad after the Committee had informed Us that the Assembly may Impeach Criminals that they had gone a little further and told us where the Judicial Authority is lodged upon such Impeachments, or whether the Assembly alone are Judges, Jury, & Accusers ; but they did not think this for their purpose, least they should discover too much.

" A Grand Jury may indict Criminals, & every one knows in that Case who are the judges and who have a power to Pardon or order Punishment to be inflicted.

" When the Committee shall be more Explicit as to the Assem- bly's Power of Commanding divers Officers as Occasion may re- quire, and particularly Sheriffs & Constables, by telling us on what Occasions and what sort of punishment they can inflict in Case of

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Disobedience, we shall be better able to judge of the Assembly's pretensions. If this Power is carried no further than in mainten- ance of the just Privileges of the Assembly, we know what that Power is and what sort of Punishment they can inflict. By Char- ter they are intitled (and so we conceive they would without it) to' the Powers and Privileges of an Assembly according to the Rights of the free-born Subjects of England, and as is usual in any of the King's Plantations in America.

" When Precedents shall be brought from the House of Com- mons in support of the Powers the Committee claim in behalf of the Assembly, we hope they will be drawn from the most Tem- perate Times, and not from such as levell'd all Distinction between Constitution & Government.

" On the second Resolve the Committee say that they think it possible to put Cases in which it might be justifiable from the As- sembly to Authorize Persons to Enter Ships & Vessels.

"On which we observe, That as the possibility of putting Cases is a new sort of Argument that proves nothing, we can give them no Answer to it; And until they think fit to put Cases, and such Cases, too, as clearly prove the Assembly's Authority, we must be of Opinion that the Committee cannot possibly put Cases to justifye an Assembly's pretensions to authorize Persons to enter Ships or Ves- sels.

"In the Committee's Observation on the third Resolve, they have been so kind as to show their great Care for the Governor & Council's safety, and in a seeming friendly Manner to advise that the words Supream Magistrate ought not to have been applied to the Governour without some words of limittation, viz., within this Province, And that it does not demonstrate that Duty and Loyalty which every Subject owes to our Sovereign.

" Had not this seeming kind Advice carried with it an insinu- ation of the want of Duty and Loyalty, we should have thanked the Committee for their good will, however insignificant we might have thought the observation ; But as the Governor & Council have given signal proofs of their Duty & Loyalty by actions & not words only, we shall spend little more Time upon it than to express our Wishes that for the reputation of the Province the Members of the Two last Assemblys had done the like, And to ob- serve in our turn, that had the Governor & Council employ'd an attor- ney to penn their Resolves, Repetition & Tautology might have been expected as agreeable to his Mode of writing & Practice; but since, in the Council's first Resolve, it is said that the Govern- ment of this Province is unquestionably in his most sacred Majesty the King, and in the fourth that the Executive part of the Govern- ment is in the Governor only as the King's Representative, we do not think it ought to be required of the Governor and Council

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to be unnecessarily Wordy by an Imitation of what may perhaps be the Effect of Craft or mercenary Views in others.

" If the Committee had observed the Connection between the second and third Resolves of Council, which assert that the Gover- nor, as Supream Magistrate, has the sole Right to authorize Persons to enter sickly Vessels, that is to inspect the Condition of Passen- gers & Seamen, in Opposition to the Power claimed by the Assem- bly so to do, they might have saved themselves the Trouble of enumerating the Rights of the Lords of Admiralty, the Commis- sioners of the Customs, the Collector, &t., as quite foreign to this Case, as well as the Trouble of Distinguishing between the King's Right and the Governor's Right, since the Governor Acts as the King's Representative in all matters of Government. And had the Committee remembred that in in their Observations upon the second Resolve of Council, they were pleased to allow that the Authorizing Persons to enter Vessels is in some Cases an Act of Government, and that they think it possible to put Cases in which it might be justifiable for the Assembly both to claim such a Power and put it in Practice, they would not have doubted of the Governor's Right, as they have done in their second Observation on the third Resolve, by the Parentheses (if any Right). That is, it is doubtful whether the Governor hath right to Authorize Persons to enter Vessels in any Case whatsoever-ffor if these two Observations of the Committee be put together and Considered, viz., that the authorizing persons to enter vessels is an Act of Government, And that the Assembly can, in many Cases, put that Power in Practice, but that the Governor cannot do it in any Case, altho' it is an Act of Government, it will clearly follow that the Government is in the Assembly and not in the Governor. Had the celebrated Historian before quoted seen such reasoning as this, he would have called it barefaced Republican indeed.

"The Commiteee of Assembly have raised such a Mist about the fourth Resolve of Council, that to dispel it we think it necessary to Cite the Act itself relating to sickly Vessels, so that by Comparing that with the Resolves of the last Assembly, it will be clearly seen that they claimed and Exercised such Powers as were not derived to them by the Charter & the Laws of the Province, and that they did assume to themselves the whole Legislative Power in those Resolves.

"' Be it therefore enacted by the Authority aforesaid, that from & after the Publication hereof, no unhealthy or sickly Vessels, coming from any unhealty or sickly place whatsoever, shall come nearer than one Mile to any of the Towns or Ports of this Province or Territories, without Bills of Health, nor shall presume to bring to shore such Vessels, nor to land such Passengers or their Goods at any of the said Ports or Places, until such Time as they shall obtain a License for their Landing at Philadelphia from the Gov-

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ernor & Council, or from any two Justices of the Peace of any other Port or County of this Province or Territory, under the Penalty of one hundred Pounds for every such unhealthy Vessel so landing as aforesaid, to the Use of the Proprietor and Governor; And that suitable provision be order'd by the Governor and Council for their Reception if they be permitted to Land or come on Shore. -

" Now it is evident from the words above cited, that all the Authority given by this Act is vested in the Governor & Council as to Philadelphia, and in any two Justices of the Peace as to any other Port or County. The Act supposes no default in the Gover- nor & Council, nor does it impower two Justices to exercise any Authority in such Cases in Philadelphia, Notwithstanding which the last Assembly have been pleased unjustly to suppose a Default, and from thence by a bare resolve to transfer the Authority of the Governor & Councill in Philadelphia to any two Justices of the City and County of Philadelphia.

" ffrom whence it clearly follows, that if the Assembly can, by a resolve of that House only, transfer an Authority vested by Law in the Governor & Council to two Justices, upon the Supposition of a Default, they may, under the same pretence, transfer any Office or Trust, although conferr'd by an Act of the whole Legislature, in the same Manner ;. And what is this but assuming to themselves the whole Legislative and Executive Power, which is not derived to them either by the Laws or the Charter.

"It is observable that the Committee have, in their Remarks on this Resolve, frequently alluded to the Advice of some other person. This we think was giving themselves unnecessary trouble, since the singular manner of puzling the Cause would have made it Evident enough to Us without it; But if the Advice came from the same person that advised in some other late Matters, we desire to be ex- cused from yielding an implicit ffaith to it, since Men of the most eminent stations and of the greatest reputation in the profession of the Law in England, have presumed to differ from him on those Points.

"Whether the Governor hath a Power to create new Offices or Officers is no part of the Question, altho' the Committee would have it believed to be such. The Governor has not done either. The Doctor appointed to visit Sickly Vessels (if he can be called an Officer) having been appointed many Years before he came to the Government & only continued by him, And we think that Appoint- ment may be very well justified, for where a Law requires a thing to be done the necessary means for doing it are implied; but the Assembly have actually taken upon them to appoint a Doctor to visit unhealthy Vessels, by resolving that Doctor Lloyd Zachary be the person appointed to visit all unhealthy Vessels, &t., which is plainly an Attempt to divest the Governor of the Executive part of the Government.

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"We know of no Attempt made by the Governor to take from the freemen of this Province any of their Priviledges. If the Gov- ernor, in Obedience to the King's instructions, and from the ne- cessity he was laid under of defending both his Character and his ffortune against the malicious Complaints of a former Assembly, addressed by way of a Petition to the King himself, gave an Account of the rash and undutiful Conduct of that Assembly, it was not only what his Duty to his Majesty but a just Regard to his own Character and ffortune, both which were so publickly struck at, obliged him to do. The Governor & and Members of this Board have at least as true a Regard for the Priviledges of the ffreemen of this Province as the Authors of the Report we are considering, tho' they have no sinister or Ambitious turns to serve by making a great Bustle about them. If the Charter of the Province, or any Par- ticular Privileges the People claim under it, should ever be endan- ger'd or taken away, it will, we are afraid, be owing to such an Abuse of those Priviledges and such an undutiful Behaviour to his Majesty as was seen in a former Assembly, altho' contrived & fo- mented by a few only who had the gratification of their own Spleen and Ambition more at Heart than the Honour of the King or the Good or reputation of the Province.

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Colonial records of Pennsylvania, Vol. IV, Part 56

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