USA > Pennsylvania > Colonial records of Pennsylvania, Vol. IV > Part 6
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" And having viewed the Copies of the Petitions you yesterday sent to me, I cannot but think that some of the invidious Allega- tions therein ought rather to have been censured than countenanced. That the Court of Starr Chamber was highly oppressive is certain, . and accordingly it was abolished in the time of King Charles the First, in the year 1641, some years before the Birth of our late Proprietor, so also undoubtedly were all Orders & Decisions of the King & Council that affected the People in their Property, other- wise than was agreeable to the laws of the Land, & any such like would be the same here; But the Court of Chancery erected in this Province, was, by its Establishment, to proceed agreeably to
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the Course of the Court of that Name in Great Britain, and as is justly observed in the Council's Paper, if the Members, because they are of the Council, are unqualified to act in the Court of Chancery, the same Reason may be advanced against their acting in any other Court where Property is concerned, tho' it is well known they now make, and always have made, a considerable Part of the principal Courts of this Province; and if I also acted in it, it is, as far as I have been able to learn, agreeable to the Practice of by much the greater Part if not all the British Colonies in America: And I assure you, it is a part that I should never have chosen to take upon me, if I had not at my arrival found that Court to be so established for some years before, and the Country in the Practice of it; and therefore all Men must acknowledge, that I could not but consider it as a Duty incumbent on me that could not be dispensed with : If the Fees were found too high or unreasonable, it was easy at any time for the Assembly to have proposed a Regu- lation in these, equally with all those of the other Courts & Offices in the Country, which should readily have been complied with upon any Terms that could be judged reasonable; Nor can there be much Room for Complaints of this Kind, since in the Nine years & upwards that I have presided here, but two Causes, & both by Consent, have been brought to a Decree, and very little other Process had been entered there, but it must appear strange, how all at once such Petitions should be now set on Foot over the Province, and brought in about the same time, without any particular Occasion given for it that can be discovered : As for the Manner of establish- ing the Court, you are referred to what the Council say thereon, and I cannot doubt but your Inclinations to preserve Peace & a good Understanding between all parts of the Government must lead you to alter your Sentiments in Relation to your past Minutes on this Subject: But if your House shall continue still of Opinion that a further Regulation in that Court is wanted, if any thing reasonable can be offered, which I conceive the Nomination of Judges by your House is not in this Case, more than for any other of the Courts of Judicature in the Province, you shall not find me backward to agree to anything that may be truly to the Honour and Service of the Country. P. GORDON."
With which a Copy of the Report of the Council was likewise delivered.
In a Committee of Council the same day.
PRESENT :
James Logan,
Thomas Laurence, r Samuel Preston,
Ralph Assheton, Esquires.
Clement Plumstead, Thomas Griffits,
The Consideration of the Bill for the more easy Recovery of
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small Debts being resumed, sundry Amendments were proposed, which being drawn up & reported to the Governor, He directed the Secretary, upon delivering the said Bill & Amendments, to acquaint the House that He conceives this Bill may be very beneficial to the Province, & would become more so by receiving the amendments proposed.
In a Committee of Council, February 19th, P. M.
PRESENT : Ralph Assheton,
James Logan, Samuel Preston, Thomas Griffitts, & Esquires.
Clement Plumstead,
The following Bills being again sent up to the Governor were laid before the Committee, to witt :
The bill about Pounds with a written Message in these Words:
"From the House of Representatives, to the Governor's further Message on the Subject of the Supplement to the Law for erecting Pounds.
"The House agrees to leave out the Words proposed to be left out by the Governor in his amendments, & in their Room to substi- tute these following, viz .: appointed & licenced according to the Laws of this Province.
J. GROWDON, Cler. Coun."
The bill ascertaining the manner of erecting Ferries, with a verbal Message that the House could not agree to the Amendments, because it was conceived they destroyed what the House intended by the Bill.
The Bill for depositing the Records in the Offices adjoining to the State house, with a written Message in these Words :
"From the House of Representatives in answer to the Governor's Observations of yesterday, on the Bill to enjoyn sundry Officers in the County of Philadelphia to deposite the Records, &ca, in the Offices adjoining to the State House.
"Ist. Two Days in a Week are not a sufficient Attendance for the Recorder of Deeds, and therefore Hours are omitted both at the Offices & at the Officer's own House.
2dly. "An Attendance every Day by the Register General at his own House, was enjoined to excuse an Attendance on certain Days at the Office.
" But if it be insisted to reduce the attendance to particular Days. & Hours, the House is of Opinion, That to prevent the Country- mans being disappointed (who comes to Town to have his Business done, as his Affairs will permit), the attendance should be at the
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respective offices, & from nine to twelve & from three to six in every Day in the Week.
"3dly. That Forasmuch as there are many Wills Recorded, the Originals of which We presume are not in the Register General's Office, it is just & reasonable the Books, where the Proof of such Wills are only to be found, should be secured, as well as the Origi- nal Wills themselves, and as the application to the Register General is but seldom, as he himself represents, to wit oftentimes not once in a Fortnight, & sometimes but once in a Month, it cannot be a Hardship for the Officer to step to the Office once in a Week or a Fortnight for a Copy of a Paper.
"J. GROWDON, Cler. Coun."
The Committee after sometime spent on considering the Points in Controversy adjourned till to-morrow.
In a Committee of Council, February 20th.
PRESENT :
James Logan, Ralph Assheton, - Esquires.
Samuel Preston, Thomas Griffitts,
It was notified to the Committee from the Governor, that the House had agreed to all the Amendments to the Bill for the more easy Recovery of small Debts, & had signified their Inclination to adjourn till August.
Upon resuming the Consideration of the Amendments in Contro- versy, on the three Bills mentioned in the preceeding Minute, the Committee were of Opinion that it might be of service, if some of their Number went to the House with the said Bills, & explain'd the Points in Contest, and this Opinion being reported to the Gov- ernor he concurred in the like Sentiments.
Whereupon, Mr. Logan, Mr. Preston, & Mr. Assheton, attended the House for this Purpose in the afternoon.
February 21st.
The Governor received this day the following Paper from the House by seven Members.
" An Answer from the House of Representatives to the Gov- ernor's Message of the Eighteenth Instant.
" May it please the Governor :
" The House of Representatives of this Province, which at pre- sent is chiefly composed of the same Members who have had the Honour to represent the Freemen of Pennsylvania in General As-
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sembly for many years past, as they have constantly embraced every Opportunity of shewing their hearty Regard for the Governor, are under no small concern to find him with his Council, express so great a Surprize, and show so strong a Resentment at a Vote of our House, in which we intended no Dishonour or Offence either to the Governor or his Council (who are Gentlemen well known to us and for whom We have a very great Personal Esteem), But were led, by the Nature of the Subject under our Consideration, to deter- mine upon the Consistency or Inconsistency of the Court of Chan- cery, as held before our Governor and Council, with our Charter of Priviledges, in doing of which We humbly conceive We acted in direct Discharge of that Duty which we owe to the People whom we represent, and which we could not avoid without drawing down upon ourselves the heavy Imputation of Betrayers of that high Trust reposed in Us by the People of Pennsylvania.
"It is indeed with Grief We see a plain Resolve, made in Main- tenance of our Charter of Priviledges, wrought up, by all the aggra- vations that Words can add to it, into a Crime against our Governor and his Council, nay even as if it affected the Honour, Reputation, and Tranquility of the whole Province, for the preservation of whose Rights that Resolve was made.
" And far from apprehending any Design in the Governor, We readily upon his Request sent him Copies of the Petitions presented to our House upon the Subject matter of our Resolve, which We humbly conceive was matter of Respect, and not of Right: We could not suffer ourselves to believe that those Petitions were de- sired, with Intent to censure either the petitions or Petitioners, that being as we conceive the undoubted Right of the House of Repre- sentatives to whom they were preferred, and we take the Liberty to say, as the Right of Petitioning is the Right of the Subject, We cannot without concern see the Petitioners (very many of whom are People of Merit and Distinction, & have acquitted themselves with Honour and Reputation both in Assemblies & Courts of Justice in this Province), fall equally with the Assembly under the Governor's Displeasure, the one for petitioning in the manner they did, which they had an unquestionable Right to do, and the other for not cen- suring the Petitions which in Justice they could not do.
" But altho' We must acquiesce under all this, yet it's hoped we have a Right, in Defence of our own judgment, to consider how far the Sentiments of the Governor and his Council are consistent with our Charter, and how agreeable to Law, with Relation to the Gov- ernor's Right of holding a Court of Equity without a Law for that Purpose.
"And we take the Liberty to observe, that as an exposition to the sixth article of the Charter, the Report of the Council, which is part of the Governor's Message, contains a long Narration of the Occasion and the Manner in which the Court of Chancery was es-
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tablished in the Governor and Council of this Province, That the Judgment of the ablest Lawyers was had, and great Deliberations used in the doing of it, The Opinion of the Assembly when that Court was erected, The Acquiescence of all the Assemblies since that time under that Establishment, and that no Complaint has ever been made of the Proceedings of that Court, and so they Inferr with the Governor, that all this considered, together with the Prac- tice of much the greater Part, if not all the British Colonies in America, is a' compleat & full Proof of the Governor's Right of holding a Court of Chancery with or without his Council. To which we lake the Liberty to say, that a Vote of the House of Represen- tatives, suppose it were more full and directory than that referred to by the Council (for less so it cannot well be), & suppose it to be unanimous too, which we are informed it was not, is yet not of suf- ficient Authority to raise a Court of Equity, which we judge can only be done by a Law in this Province ; Nor can we believe that the Opinion of one or more Lawyers (who are left to answer for themselves) in favor of that Court, or the silence of subsequent Assemblies, are of any Consideration in this Case. And were it to the purpose, we can say that upon the strictest Enquiry We can- not find that even the Charter was considered, or so much as thought of upon that Occasion, by any Assembly of Pennsylvania before this time, neither can the Practice of the other British Colonies, was it really as the Governor & Council have alledged, which we are informed it is not, operate any thing in the Case, unless it can be made appear that these Colonies have a Charter of Priviledges of the same Tenor with ours, and even then their Indolence or Inat- tention too much like our own, cannot be justly urged against us in a Matter so plain and obvious as the Words of our Charter : We are really sorry to see gentlemen of such Penetration as the Gov- ernor's Council are, in Support or Justification of their Resentment, building up an Authority upon the Oversight of one and silence of several Assemblys, but much more so, to find them resining away the common Sense of our Charter, by confining the Word Property, when used within the Province of Pennsylvania, to the Property of the Proprietors only, a Construction unnatural, and which with Sub- mission must be an Absurdity, if confined to such a meaning. When the Appeals which by the Charter may be appointed by Law to the Governor and Council, must according to that Construction be from the Proprietor to the Proprietor, if no Man's Property is mean't by the Charter except the Proprietors.
" However, this We may take as a proof of the Extraordinary Opinion the Council have conceived of our Understanding. But were our Charter really silent, yet it seems to be clear that a Court of Equity cannot be raised or constituted at this Day, but by Act of Parliament in Great Britain, and consequently by Act of Assem- bly here, and then a suit in our Court of Equity will be in the or- dinary Course of Justice, and not before. And for as much as We
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have annual Assemblies, who meet at least three times in the year, and so a Court of Equity may be easily established by Law, we cannot well understand why so great Pains should be taken to sup- port a Court otherwise set up, whose Jurisdiction, it seems generally agreed, either is not legal, or rightly understood. We are often referr'd to the Constitution of our Mother Country, and the prac- tice of the high court of Chancery there. But at the same time there seems to be no Regard had to the well-known Opinion of the Judges of that or any other of the Kings great Courts; For by them it is agreed, that the King cannot by his Charter raise a Court of Equity, tho' he can a Court of Law, And the Reason given is in our Opinion excellent, to witt, for in the One, the Judges must Judge according to one ordinary Rule of the Common Law, but otherwise it is of Proceedings extraordinary, without any certain Rule ; and We cannot help saying it seems strange, that after it is agreed, the King by his Charter or Commission cannot set up such a Court, that yet it should be concluded, the Deputy of the King's Patentee can erect himself into a Court of Equity, for if he can do it by a Vote of the House of Assembly, he can do it without, till it is made appear that a Vote of a House of Assembly.is a Law ; and We hope when the Governor shall be so charitably disposed as to believe we acted from a principle of Duty and Justice to our Country, And when it appears that the Judges of the Court of Chancery (as it was held in Pennsylvania) are not the first great Men who have exceeded in their Jurisdiction, and have had the same declared to be illegal. The Governor and these Gentlemen too will be so good as to allow, that such like Things have happened before this time, and that too without giving any such Offence, which we presume will be seen by the following Case : The Court of Requests in England, where the Lord Privy Seal sat Judge, as- sisted by the Masters of Requests, composed of divers of the King's Council, contended to extend their Jurisdiction to all Causes equally with the Chancery, And to strengthen their Jurisdiction obtained a Commission from King Henry the Eighth to hear & determine all Causes in Equity.' An attachment issued out of this Court against one Flood, and the Sherif took Bond for Flood's Appear- ance before the King's Council in the Court of Requests; Flood did not appear, and the Bond was forfeited, upon this Bond in the 40 & 41 of Elizabeth, a Suit was brought in the Common Pleas against Flood, who appeared & shewed all this to the Justices of the com- mon Pleas, And thereupon they, without any Conference with or Apolagy made to the Lord Privy Scal, &ca., judged that the Court of Requests, notwithstanding the Great Men that were Judges of it, and its long Continuance, and altho' it was strengthened by the King's Commission, was no Court of Judicature, but all the Pro- ceedings there were Coram non Judice, and the arrest of Flood was false Imprisonment : It is further observed in the Report of that Case, That as Gold and Silver money as current may pass even
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with the proper Artificer, tho' it hath too much Allay, until he hath tryed it with the Touchstone, Even so this Nominative Court may pass with the learned as Justifiable, in Respect to the Outside by vulgar Allowance, until he advisedly looketh into the Roots of it, and tries it by the Rule of Law; and it is further said, that in Re- spect of the Continuance this Court hath had by permission, and the Number of Decrees therein had, it were worthy of the Wisdom of a Parliament to establish Things past, and make some Provision with reasonable Limitation for Time to come.
" Here is an Instance that great Men may be mistaken, and have been much & long mistaken in their own Jurisdiction, and have by permission gone on and made many Decrees, and yet were never really a Court of Judicature, nor did we ever hear of any Resent- ment against the Justices of the Common Pleas, who Judged that the Lord Privy Seal, with many of the King's Council who were Masters, had no Authority to hear Causes in Equity. And we hope, our Governors Council, who we humbly presume are not more superiour to the House of Representatives of this Province, than the Lord Privy Seal and the other great Men, Masters of the Court of Requests, were to the Justices of the Common Pleas, will change their Opinions of our proceedings, which were not carried the length of the Case we have just now mentioned.
" It is further urged by the Council 'That it must appear strange to all the World, that the Person, in whom half the Legislation, and 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 others in the Tryal of a Case of private Property between Person and Person ;' And upon the Contrary, we are of Opinion, that it must seem more strange to all the World, that it should be so warmly contended to have a Gentleman, the Supream Magistrate of the Province, who has so much Power, sit in any Court of Judicature, with Persons of his own appointment, to determine private Property ; For we cannot doubt but it will be agreed, that any greater Power vested in a Judge than what is incident to his Office, and necessary to support the authority of the Court in which he sits, & to compel the Execution of his Judgments or Decrees, has seldom or never been found to advance an impartial Administration of Justice. It is now more than twenty days since the Publication of the Resolve of our House, to which the Governor is pleased to referr. And as it was thought necessary by the Governor & Council to take notice of it in the manner they have been pleased to do, We hope to be pardoned for saying, that in our Opinion, it would have been more reasonable, if it had been earlier, for then it might have saved us some time in framing, and the Governor the Trouble in consid- ering, the two Bills relating to the Court of Equity, which have lain long before him, without our being at all informed in what State they are, tho' the Session of Assembly is now very near a
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close ; But it is the Governor's pleasure so to do, and We must in this acquiesce with what he thinks fit.
"Signed by order of the House, " A. HAMILTON, Speaker."
Which is referred to be considered in Council.
The Governor being desirous that the Bills relating to the Fer- ries should be compleated this Session, directed the Secretary to acquaint the House verbally, That on the Subject of those Bills He offered a further Proposal, which if agreed to by the House, and added to the Bill for settling the Rates of Ferriage, He would then consent to that Bill, & to the Bill for ascertaining the manner of erecting Ferries as sent up from the House.
Which Proposal was delivered in writing in these Words :
" Instead of the last Proviso in the Bill for regulating the Rates of Ferriage, Say : Provided always, that this Act shall continue in force for seven years, & to the end of the then next ensuing Session of such Assembly, as shall present to the Governor a Bill for the fur- ther establishing & regulating the Rates and Prices of Ferriage throughout this Province, consistent with, & conformable to, the Act of this present Session, Entituled An Act for ascertaining the Man- ner of erecting of Ferries within this Province, & no longer.
" It is desired the Title of this last Act may be thus alter'd."
" The advancing of three pence on each of the Rates for a Man & Horse on the Ferries upon Sasquehannah is recommended to the House."
The House sent a Message to the Governor, desiring that he would please to appoint two Members of Council, to join a Com- mittee of the House, in comparing the engross'd Bills that have pass'd the House with his Concurrence, with the amended Copies that were sent up to the Governor, and to know when he would receive the House in order to pass the said Bills into Laws. The Governor answered that he would be ready to receive them at Four a Clock this afternoon. And having appointed two Members of Council for comparing the Bills, who thereupon reported the same to His Honour,
The whole House with their Speaker attending, the four follow- ing Bills were passed into Laws, and Warrants signed for affixing the Great Seal thereto, viz. :
A Supplement to the Law for laying out of Highways and Pub- lick Roads.
AN Acr for the more casy & speedy Recovery of small Debts.
AN ACT for vesting the Statehouse and other Publick Buildings, with the Lotts of Land whereon the same are crected, in Trustees, for the use of this Province.
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AN Acr for regulating Retailers of Liquors near the Iron Works.
The Governor having received from the hands of the Speaker an Order for Four hundred pounds, in part of the current year's Sup- port, thanked the House; they then withdrew, and adjourned them- selves to the ninth day of August next.
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At a Council held at Philadia., April 21st, 1736.
PRESENT :
The Honble PATRICK GORDON, Esqr., Lieut. Governor.
Clement Plumsted, Samuel Hasell, ?
Ralph Assheton, Charles Read,
Esquires.
The Chief Justice having reported to the Governor that at a Court of Oyer and Terminer and general Goal Delivery, held at Philadia. for the City and County of Philadia. the 13th, 14th, & 15th in- stant, three Persons had been tried for Burglary, and being thereof found guilty had received Sentence of Death, to witt : John Wat- nell, Michael Mc Deirmatt, & Katharine Connor als. Smith, & having likewise delivered his Opinion to the Governor, that he did not conceive either of them had any just Claim to Mercy, His Honour this day acquainted the Board therewith, & likewise with his Inten- tions to order their Execution on this day se'night, unless some Reasons should be offered to the contrary. The Board having nothing material to offer in behalf of any of these Criminals, & acquiescing in the Opinion of the Chief Justice, to whom their Case must be best known, referred it to the Governor to do herein as to him shall seem most meet.
N. B. The men were executed, & the Woman reprieved.
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At a Council held at Philadia., August 5th, 1736.
PRESENT :
James Logan, Samuel Preston,
Ralph Assheton,
Thomas Laurence, 1 Esquires.
Anthony Palmer,
Clement Plumsted,
Samuel Hasell, Thomas Griffits,
Mr. Logan, as eldest Counsellor, addressing himself to the others Members, acquaintª them that they were now called together on the melancholy Occasion of the Lieut. Governor's Death, on which Event the Exercise of the Powers of Goverment (Legislation ex- cepted), by a Law of this Province passed in the 10th and 11th year of Queen Ann, devolves on this Board, which Law he desired might be read, & it was read accordingly, as were likewise two Minutes of Council of the 27th & 28th of August, 1730, whereby
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the Rank and Precedency of the several Members of this Board had been declared & established.
Mr. Logan then proceeded to say, that it appearing by the Law aforesaid, that the eldest Counsellor, with any four more of the said Counsellors, being appointed a Quorem, and invested with the Pow- ers & authorities therein mentioned, he could not but very seriously consider the great Burthen which hereby would more immediately fall upon himself, and that by Reason of his Lameness and Resi- dence in the Country, it would in many respects be exceedingly in- convenient for him, Yet as he had been long & intimately conversant in the Affairs of this Province, whose Interest and Service he had on all Occasions endeavoured to the best of his Power to promote, he would not decline acting in his present Station, unless the Board should, on due Consideration, think any other Member more proper, in which Case he would readily acquiesce in their Sentiments.
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