Colonial records of Pennsylvania, Vol. IX, Part 36

Author:
Publication date: 1838
Publisher: [Harrisburg] : By the State
Number of Pages: 810

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"Same Pa., line, After the word [aforesaid] insert the words [to apprehend, and upon due Examination and proof, commit to the said House of Employment].

"Same Pa., line 13, Instead of the word [and] say [or].

" Same Pa., Dele from the word [Livelihood] in the 16th line, to the word [there] exclusive in the last Line.

2. "An Act for the Relief of Thomas Reily and John Whit- pane, Lanquishing Prisoners in the Gaol of Philadelphia, with re- spect to the imprisonment of their Persons," which was read and Ordered to be returned to the House without an Amendment.

3. " An Act for appointing Wardens for the Port of Philadel- phia, for the better regulating Pilots plying in the River and Bay of Delaware, and the price of Pilotage to and from the said Port."

4. " An Act to amend the Act, entituled ' An Act to prevent the Exportation of bad and unmerchantable Staves, Heading, Boards and Timber.' "

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The two Bills last mentioned were Read, and the consideration of them deferred.

A Petition from the Wardens of the Port of Philadelphia, pre- sented to the Governour this Morning, was read, and follows in these Words, viz" :

" To the Honourable JOHN PENN, Esquire, Lieutenant Gover- nor and Commander-in-Chief of the Province of Pennsylvania, and Counties of New Castle, Kent, and Sussex, on Delaware.

"The Petition of the Wardens of the Port of Philadelphia, Hum- bly Sheweth,

" That your Petitioners are informed, a Bill is now before your Honour, sent up from the House of Assembly for your Assent, to enact the same into a Law, for Regulating Pilots Plying in the Bay and River Delaware, and appointing Wardens for this Port, Where- in your Petitioners are named for the said Office; and as your Peti- tioners are informed, that many Circumstances in the said Bill would prove peculiarly hard to the said Wardens, as well as gener- ally injurious to the Commercial Interest of this Province, Your Petitioners do therefore Humbly Pray, That Your Honour would be pleased to direct a Copy of the said Bill to be made out, and deliv- ered to your Petitioners, in order that they may not only consider the same themselves, but take the Sense of the Merchants of this City thereupon, and communicate their Sentiments to your Honour, in Order to prevent the said Bills being passed into a Law, unless such alterations are made therein as they may be able to convince your Honour are necessary and just, for which purpose your Peti- tioners likewise pray your Honour to detain the said Bill a reason- able time, and your Petitioners, as in duty bound, shall ever pray.

" PETER REEVE,

" MICHAEL HULINGS,

" JOHN NIXON,

" ABEL JAMES,

"ROBERT MORRIS,

" THOMAS PENROSE.

" Philadelphia, 18th February, 1767."

The said Petition being considered, the Secretary was ordered to furnish the Wardens with a Copy of the Bill therein Requested.

. Then was presented to the Governor, and read, the Petition and Representation of Sundry Merchants and Traders of the City of Philadelphia, setting forth, That They are informed a Bill has been sent up to the Governor by the Assembly, entituled "An Act to amend the Act entituled 'An Act to prevent the Exporta- tion of bad and unmerchantable Staves, Heading, Boards and Timber,'" in which it is proposed to be enacted, that all Lumber intended for Exportation, shall be inspected within Forty Eight Hours before the actual Lading thereof; that if the

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S A d S t P p S

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said Bill should be passed in its present Form, the Clause referred to, would greatly embarrass the Petitioners in regard to the Ship- ping of Lumber, and in many Cases render it very difficult, if not impracticable, to comply with the Law. That they apprehend it would fully answer the good Intent of the Legislature, and relieve your Petitioners, if it should be provided, that on the Sale and de- livery of any Lumber for Exportation, as well out of a Yard as out of the River Shallops and Boats, the Inspector, or one of his Depu- ties, should be called upon to examine the same; notwithstanding any former Inspectors thereof, and therefore, Praying the Governor to take the Premises into Consideration, and give them such Re- lief as to him shall seem meet.

Friday, 20th February, 1767, A. M.

Two Members of the Assembly waited on the Governor and pre- sented him for his Honour's Concurrence, a Bill entituled " An Act to enable the Owners and Possessors of the Moyamensing Mea- dows, in the County of Philadelphia, to keep the Banks, Dams, Sluices, and Flood Gates in Repair, and to raise a Fund to defray the Expences thereof."

They at the same time acquainted the Governor that the House proposed to adjourn this Week, and desired his Honour would be pleased to let them know his Result on the two Bills under his Con- sideration ; to which the Governor made Answer that he should Send them a Message concerning them, in the Afternoon.

Eodem die, P. M.

The Governor sent to the House a Verbal Message by the Sec- retary, in the following words, Viz":

" Sir :

" The Governor orders me to acquaint the House that he has re- ceived a Petition from the Wardens of the Port of Philadelphia, Setting forth that they conceive the Bill entituled " An Act for appointing Wardens for the Port of Philadelphia, for the better re- gulating Pilots plying in the River and Bay of Delaware, &c.ª," sent up by the House for his Honour's Concurrence, will impose peculiar Hardships on them, and be injurious to the Commercial Interests of the Province, and therefore, pray he will give them time to be heard on that Bill, and lay their Objections before him for his Consideration ; and that Sundry reputable merchants of this City have also preferred a Petition to him of the Same Nature, against the Bill entituled " An Act to amend the Act entituled 'An

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Act to prevent the Exportation of bad and unmerchantable Staves, &ca.,' " which, as the House have signified their Intention of Ad- journing this Week, may render it necessary for the Publick In- terest to keep the said Bills under his Advisement 'till the next Ses- sions."

Eodem die.

Two Members of Assembly waited on the Governor and acquainted him that the House Desired his Honour would be pleased to acquaint them when they should attend him for passing the several Bills which were agreed to, and to appoint some members of Council to join two members of the House in comparing them with the en- grossed Copies. The Governor made answer, that he would be in the Council Chamber at half an Hour after twelve to-morrow, in order to pass the Bills, and should, in the meantime, appoint a mem- ber of the Council and the Secretary for collating them.

Saturday the 21st of February, 1767.

The Secretary, by the Governor's directions, carried down to the House the Bill entituled "An Act to enable the Owners and Pos- sessors of the Moyamensing Meadows, in the County of Philadel- phia, to keep the Banks, Dams, Sluices, and Flood Gates in Repair, &cª.," and acquainted them that his Honour agreed to pass it.

Council Chamber-Eodem Die, 12} O'Clock.

The several Ingrossed Bills being compared with their Originals, and found to agree, The Governor sent the Secretary to the House with a Message requiring their Attendance in the Council Chamber. The whole House attending accordingly, the Speaker presented to the Governor the following Bills, which his Honour was pleased to enact into Laws, and issued a Warrant for affixing the Great Seal thereto, viz *:

1. "An Act to enable the Owners and Possessors of the Moya- mensing meadows in the County of Philadelphia, to keep the Banks, Dams, Sluices and Flood Gates in Repair, and to raise a Fund to defray the Expences thereof."

2. " An Act to amend an Act entituled ' An Act to prevent the the Exportation of Bread and Flour not Merchantable.' "

3. " A Supplement to an Act entituled 'An Act for the ad- vancement of Justice, and the more certain Administration thereof.'"

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4. " An Act to regulate the Fishery in the River Schuylkill."

5. " An Act to appoint certain Persons therein named to Super- visors and directors of the Road and Bridge over Hollander's Creek, leading to the West district of Greenwich Island, and to enable them to lay such Rates and Assessments, from time to time, on all Lands in the said district accomodated by the Road and Bridge aforesaid, as may be found necessary for supporting and maintain- ing the same in good Repair."

6. "An Act for amending the Act entituled ' An Act for the better employment, Relief, and support of the Poor within the City of Philadelphia, the District of Southwark, and the Townships of Moyamensing and Passyunk, and the Northern Liberties.'"

7. " An Act for amending the Act entituled 'a Supplement to the Act entituled 'a supplement to the Act entituled 'An Act for regulating, pitching, paving, and cleansing the Highways, Streets, Lanes, and Alleys, and for regulating, making, and amending the Water Courses and common Sewers in the established and settled parts of the City of Philadelphia, and for raising money to defray the Expences thereof.' "

8. " An Act to prevent the mischiefs arising from the increase of Vagabonds and other disorderly Persons within the Province."

9. " An Act to enable the Commissioners therein named to settle the Accompts of the managers, and to sue for and recover from several Persons, their Executors, Administrators and Assigns, such sums of money as are now due and unpaid, on account of the Lottery set up and drawn, for erecting a house of Worship in the Borough of Lancaster, for the Use of the Presbyterian Congrega- tion in and about the said Borough."

10. "An Act to prevent inconveniencies arising from delays of Causes after Issue joyned."

11. "An Act for the relief of Thomas Reily and John Whit- pane, languishing Prisoners in the Gaol of Philadelphia, with respect to the Imprisonment of their Persons."

Eodem Die, 2 o'clock, P. M.

Two Members of Assembly waited on the Governor, and deliv- ered him the following Message from the House, vizt. :

A Message to the Governor from the Assembly.

" May it please your Honour :

" However ' sensible' your Honour may 'be of the many disad- ' vantages the People of this Province have laboured under, in being obliged, as Suitors, Jury men, and Witnesses, to attend the VOL. IX .- 24.

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Supream Court in this City from the adjacent Counties,' we are Sorry to find you have rejected a Bill, in every respect calculated to remove those very disadvantages, unless we will agree to adopt your proposed amendment, which, we conceive, must be productive of great mischiefs to the People we represent.

" You are pleased to say, that 'on Perusal of the Bill, you were doubtful whether, as it was framed, it would fully answer the good ends proposed, and was willing that the Utility or Inexpediency of it should be proved by Experience.'

" On this we beg leave to remark, that had your Honour doubted of the Utility or Inexpediency of the Bill, as it was framed, it would, in our Opinion, have been more Parliamentary to have proposed such Amendments to the House as would render those two impor- tant Objects evident, than to leave them to be proved by Expe- rience. For you must allow, should it be found neither useful or expedient, it might, in the execution, be attended not only with an unnecessary Expence to the Province, but inconvenience to the People, both which it is our Duty to avoid. But instead of this you have contented yourself with only mentioning those doubts, without assigning the least Reason for them, or pointing out the defects in the Bill, save in one Instance, relating to the number of Judges, from which you have since thought proper to recede.

" Had you condescended to have done this, and had your Rea- sons been justly founded, the Bill might, and would have been amended, and the Publick served. And, as we cannot presume your Honour could expect that we Should know your Objections without the least intimation of them, there seems Cause to Suspect that the Task was too arduous. The Bill was formed on the Plan of Magna Charta, and other Statutes for establishing the Nisi Prius Courts in our Mother Country, and the terms in which it is con- ceived, are the very Same in this respect as the Law to which it was intended a Supplement, passed by one of your Predecessors in the Year 1721, with this difference only, that it leaves the Judges to appoint the Days for holding the Courts in the respective Coun- ties, instead of naming them in the Bill, the only Point in which the Original Act was defective and impracticable, and which was now intended to be remedied. 'Tis true, it makes other Provisions to defray the Expences of the Judges, to limit the Value of Ac- tions to be removed, to regulate Appeals to Great Britain, and to oblige Jurymen to give their attendance, but to these you have not made the least Objection.

" These Statutes, as well as that Law, have ever been Perpetual, and we believe, as all good Policy directs, ever will remain so, un- til the Constitution of our Mother State and this Government shall be dissolved. Justice there, is not, nor ever has been Temporary, but independant, and firmly established by laws, without Limita- tion. And why the People of this Province, from time to time, must depend on the Pleasure of any Person whatsoever, in a matter so essential to their ease and happiness, we cannot conceive.

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" We did not ' mean' to assert that no 'Instances' can be found, either 'in the Mother Country, or the Colonies,' of Temporary Laws, in which the due Administration of Justice hath been concerned.

" We well know there are a few among the many Statutes made to alter the mode of administering Justice, and particularly among the Statutes of Jeofails, which have been enacted, not to establish Essentials, but to take away the useless Forms which were required under the common Law, some antient Statutes, and the long accus- tomed practice of the Courts ; but we know of no Instance Similar to the one before us, which is necessary to give the Subject a per- petual Remedy where it has been made temporary.

"'All the Statutes instituting the Assizes and Nisi prius, which are the Laws in point, are, and were originally made perpetual. As to the instances in the Colonies to the contrary, we must ob- serve that their Conduct never has been a Rule for us, nor are we so vain as to imagine ours will be to them; and there can be no doubt but we shall both exercise our Judgments in the best man- ner we are able, for our Constituents. We are not unacquainted that there have been several temporary Laws, similar to this Bill, passed in a Neighbouring Government, nor are we Strangers to the mischiefs the People have suffered by their being so. This would render us still more inexcusable, were we to accept of the Bill on the like Terms, when we know, on trial, they have been found in- convenient and Oppressive ; and yet we shall not do the Assemblies. who passed them the injustice to suspect that they had not Virtue. enough to endeavour to obtain them in a more Constitutional man- ner.

" We do not disagree with your Honour in opinion, that it is not: inconsistent with the Dignity, or unbecoming the wisdom of a Le- gislature, to make trial of Laws for a time, but we can perceive the

. difference between those Laws which ought to be temporary, and! those which should be perpetual.

" Laws are made temporary where the things enacted are, in in their Nature, of a limited duration, and in some Cases where the Regulations are, entirely new, and unexperienced before. But the Riding of Circuits under an old established Law, the regulation, under consideration, is neither novel or Temporary ; it has been or -. dered and practiced under the great Charter of English Liberty,. and sundry other perpetual Laws, for many Centuries, and in seve- ral of the Royal Governments for a number of Years, to the great ease and happiness of the Subject.

" We cannot, therefore, perceive the least Reason to make this Bill temporary, that ' The utility or Inexpediency of it should be provedi by Experience.' Besides, we think it impossible that either of them can admit of a doubt, for it must appear obvious, on a little Reflec -- tion, that it will be of great ' Utility' to the People to have Justice. carried, in a manner, to their own Doors; and that it is much more: 'expedient' that the Judges should Ride Circuit into the Several

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Counties, Some of them at a great distance from Philadelphia, than to bring Several hundred Persons from thence, at a heavy and unnecessary Expence, twice in every year, to this City.

" You are pleased to agree with us that 'Justice is the Natural Right of every man.' Would you permit the People we Represent to enjoy that 'Right"hereafter, independant of the Will and Plea- sure of the Governors of this Province ? it is all we ask, and all we contend for. But, you say, altho' 'Justice is the Right of every Man, yet, it does not therefore follow, that all Laws which regard the mode of administering it ought to be Perpetual.'

" We think it would be better and safer for the People of this Province, as it is at present circumstanced, should even those Laws, were it necessary to form such, be made perpetual; but it is happy for us, that at present we have no occasion for them. And you will be pleased to consider that the Bill you have rejected was not to Regulate a mode, but to establish an Essential. The mode is fully ascertained by the Act for the advancement of Justice, which in- vests the Judges with all the Powers of the King's Bench; and that the Bill means no more than to enable them to administer Jus- tice in the several Counties agreeable to the manner of practice in that Court, by repealing the appointment of the inconvenient Days, and enjoining them to Ride the Circuit when occasion requires.

"We cannot help expressing our Surprize, that you should assers 4 that the only inconveniency of the Bills being Temporary, which we have thought proper to point out, is, that it may expire when the Province may be Governed by a President of the Council," when in truth it was the least of our Objections.

"Much pains have indeed been taken to invalidate it, while the more important one is passed over in silence ; And even this is done by offering to our Consideration a new amendment of your former Amendment, proposing to extend the duration of the Act till there should be a compleat Legislative Power in the Government, which evidently proves that even this objection before stood in full force. But, on revisal of our Message, you will find that our principal Reason for making the Bill perpetual was, that, Justice ought not to be Temporary, Precarious, or dependant on the Will and Pleas- ure of either Branch of the Legislature.

" This objection, then, being unanswered and unnoticed by your Honour, remains with all the weight and importance it had when we first offered is.

" You are pleased further to remark, " that the first mentioned objection milstates equally against all Temporary Laws, and it should seem strange that the discovery was never made before."

"It may, in some measure, militate against all such Laws, but, we contend that it does not equally ; and it seems as ' strange' to us, that your Honour has not yet discovered that the Province would suffer much more by the Expiration of some temporary Laws than others, should a President of the Council preside, who has

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mot the power of reenacting. The Province might for a time be without the Act for erecting a Light House, &ca., or the Law for extending the Excise on Strong Liquors, with many others, without Sustaining any great inconvenience or loss, not more than before those Acts passed, or perhaps not so much, but, to have Justice cease in the several Counties, would be an oppression of a much more grievous Nature, and more sensibly felt by the People; And. therefore, in our opinion, atho' the Legislature may run this Risque in the former Cases, yet, in the latter, it ought never to be done.

" Your Honour is pleased further to add, should the Act at its expiration be found fully to answer all the good Purposes proposed, there can be no Reason to doubt the renewal of it. We heartily wish that in this we could concur in opinion with you, but ' Experience' that great test of Human Wisdom, has taught us to believe the contrary ; many instances may be adduced, and that not long since, of the refusal of Bills absolutely necessary even to the Safety of the Province, and what has heretofore often happened, we are not to conclude will not happen again. But if this Act may be re- newed on its expiration, should it be found to answer the good ends proposed, why may it not as well be amended or repealed, should it be found inconvenient even at the next sitting of Assembly after such inconvenience shall be discovered ? It will be our interest, as well as our Constituents' that this should be done. We are the Persons who are to reap the benefits of the Act, and must experi- ence the mischief's, should any arise, And it cannot, on any Princi- ple of Reason, be presumed that those who suffer by a disorder will not seek a Remedy. Why, therefore, you should refuse the People a perpetual redress of this their great Grievance, because we cannot, for the reasons 'we' have given, join with you in making the Bill temporary in the first instance, we must confess, appears not a little strange only, but unreasonable and unjust.

" Before we conclude, we cannot help declaring that we esteem your refusal of this important Bill a denial of an essential Right, to which the People of this Province are entitled as English men. By magna Charta, the great Charter of English Liberty, so repeat- edly confirmed, it is declared that Justice or Right shall not be sold, denied, or delayed. By the statute of Westminster, 1st, Right shall be done to all, without respect of Persons, and by several Subse- quent Laws, Right shall not be delayed for any Command under the great Seal. These Priviledges, we and our Constituents elaim as a Birth-right and Inheritance, and every denial of them is a Violation of our Liberties. Without this Bill, you must be sensible that Justice & Right cannot be duly administered to the Peo- ple, and, in many instances, must remain not only delayed but to- tally denied, and were we to accede te your amendment, we cannot be certain but both must be purchased hereafter, or the People left destitute of them.

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" It is expedient that on this important occasion we explain our- selves with freedom. It is impossible for this branch of the Legis- lature to foresee the disposition of a Governor, or whom he may be, when this Bill, had it passed agreeable to your proposed amend- ment, should expire, nor on what terms it might be again obtained for the People. We have seen Gentlemen in that station disposed to refuse, and who have refused, many Reasonable Regulations, Bat on terms the most injurious and Oppressive.

"We, therefore, as your temporary amendment has a tendency to increase the Proprietaries' Power and Influence in the Province,. and to render the People, already too dependant on their Will and Pleasure, still more so, cannot so far Wave the Rights of his Ma- jesty's faithful subjects in this Province, as to pass so necessary a Bill with a limitation which must increase that dependance, but rather choose to wait, however inconvenient it may be, till a more favourable opportunity shall present of obtaining for them that Justice which they are now most unreasonably denied.

" Signed by Order of the House,

" JOSEPH GALLOWAY, Speaker."

Friday, 20th March, 1767.

MEMORANDUM.

The Council having been Summoned to meet this Forenoon, and none of the Members attending except Mr. Peters, his Honour ac- quainted him that the Justices of Sussex County had represented to him that several of their Brethren in the Magistracy were Dead, and it being expedient that others should be appointed in their room to assist the present Justices, as well as to accomodate many of the inhabitants of the County, had recommended to him John Rodney, Anderson Parker, Cornelius Turner, Parker Robinson, Boas Man- love, and John Willbanch, as men of Integrity and Ability, and well qualified for the Office of Magistrates. The matter being taken into Consideration, the Governor thought proper to issue a special Commission, assigning the above named Gentlemen Justices of the Peace and of the County Court of Common Pleas for the County of Sussex.

A special Commission was also issued this Day by the Governor appointing John Allen, Esq" a Justice of the Peace and of the County Court of Common Pleas for the County of Philadel- phia.

Monday, 23d March, 1767.

The Speaker of the Assembly this day sent to the Provincial Secretary, a written Order to issue a Writ for the Election of a

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Colonial records of Pennsylvania, Vol. IX, Part 36

Author: Publication date: 1838 Publisher: [Harrisburg] : By the State Number of Pages: 810

Author:
Publication date: 1838
Publisher: [Harrisburg] : By the State
Number of Pages: 810