USA > Pennsylvania > Colonial records of Pennsylvania, Vol. VIII > Part 2
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" I cannot help observing that from Several parts of your Last Message you seem apprehensive that in the Steps taken by me to bring the Complaints against Mr. Moore to a full hearing, I have attempted to Establish a new Judicature, unknown to the Constitu- tion, and that a Concern for my Honour obliged you to inform me that all Hearings and Trials before the Council, where they assume a Voice in the Judical Determination, is an high Infringement of the Rights of the People, a Violation of the Charter of the Pro- vince, and an innovation in the Constitution. I am much obliged to you, Gentlemen, for the Concern You express for my Honour, but I cannot conceive what could give rise to your Apprehensions. A Concern for my own Honour and that of the Council lays me under the Necessity of telling you that your fears had no just Foun- dation, that in no one instance since my Accession to this Govern- ment I have ever, by myself, or in conjunction with my Council, sat as a Court of Judicature, or given any Judicial Determination.
" On Considering the Matters complained of in the Late Assem- bly's Address against Mr. Moore, I could not be so absurd as to Suppose that I had a Judicial Power to arraign, try, condemn, and punish him, for the offences therein charged upon him. Indeed, the only particular charge alledged against him was that of Extor- tion, an Offence very Criminal in its Nature, and for which (if Guilty) he ought to be severely punished, but I well knew that a Positive Act of Assembly of this Province annexed a penalty to that Offence, and directed the Mode of Trial therein, and that without assuming a Power of Dispensing with Law, I could not sit in a judicial Capa- city on his Trial. However, as the Office in which it is said he had misbehaved himself was held under this Government, I thought it a Duty I owed to Justice and to the Publick to Satisfy myself of his Guilt or innocence, that if he could not clearly acquit himself from the Charges I might, by depriving him of his Commission, at Least put it out of his Power to commit the like Offences for the Future. To this end only I appointed Monday last for the Hearing, and de- sired the Assistance of my Council. If, in this, I have violated the Charter, and been guilty of an Innovation in the Constitution, and erected a New Court of Justice, I leave you and the World to Judge.
"I have very carefully considered, as well as the Shortness of Time would admit, that Part of your Message wherein you assert that the Power of impeaching is incontestably in the Assembly by the Charter of Privileges and an established Law of this Province, and
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the Power of Determining such impeachments in the Governor alone, and I do assure that if I could be as fully convinced as you seem to be that I am Legally vested with so Supreme a Power, I would not hesitate one moment to take upon me the exercise of it. Give me Leave to observe to you, Gentlemen, that in the Estab- lishment of so transcendent a Power in the Single person of a Gov- ernor of this Province, so widely differing in its present Frame and Constitution from that of our Mother Country, especially in the Branches of the Legislative Body, the Lives, Liberties, and Pro- porties of every Freeman in it are deeply interested in it. I agree with you that Impeachments are Warranted by the Usage of Par- liament and Customs of our Mother Country, but you will Please further to Consider that the Parliament of England Consists of Three different Bodies and Estates, namely, the King, Lords, and Commons, each of which have, inherent in them, distinct Preroga- tives, Privileges, Powers, and Jurisdictions, which I conceive they do not derive under any Positive Laws made for that Purpose, but such their Rights are originally founded in the Nature of their institution, and the Principles of an English Government. The Commons have an undoubted Right to impeach Criminals for such high Crimes and Misdemeanors as they cannot be called to an Account for in the ordinary and established Courts of Justice ; and it is as undoubtedly the Right of the House of Lords only to hear, try, and Pass Sentence of Death, or otherwise, as they see occasion, against such Offenders. The Legislature here consists of two Parts only, the King's Representative, and the representatives of the People, without any middle State, Resembling the House of Lords, between them; and neither of the Branches of the Legisla- ture of this Province have any other Powers or Jurisdictions but those which are expressly delegated and granted them. Admitting, therefore, for Argument's Sake, the Words of the Charter and Law of the Province you refer to in their full Latitude and Extent, which are, that the Assembly shall have power to chuse a Speaker, and other their Officers, and shall be Judges of the Qualifications and Elections of their own Members, Sit upon their own Adjourn- ments, appoint Committees, prepare Bills in order to pass into Laws, impeach Criminals, and redress Grievances, and shall have all other Powers and Privileges of an Assembly, according to the Rights of the Freeborn Subjects of England, and as is usual in any of the King's Plantations in America; yet it does not follow that the Gov- ernor of the Province has the Power of hearing, trying, and passing Sentence on such impeachments. No such Jurisdiction is given him by the Words of the Charter, or elsewhere, that I can find, on the Strictest Scrutiny ; Nor does it seem to me, for the Security of the Lives and Liberties of the Good People of this Province, that their Governor alone, or any one Man Living, should be invested with so high a Trust. Power has in it great Allurements, and when offered is seldom refused, but I have the Pleasure to find, that a
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preceding Governor of this Province had Virtue enough to decline acting as a Judge in a case of Impeachment under the present Charter.
,
" Be pleased to remember, Gentlemen, that the Freedom and Happiness of an Englishman consists in a great Measure, in the most inestimable Privilege of being tried by his Equals in every case that affects his Life, Liberty, Character, or Fortune; and that to deprive him of that Right against Law, or without Clear Law, is the Highest injury that can possibly be done him, and that who- ever, in such a Case, under an English Constitution, takes away the Life of a Subject, is answerable for his Blood, and Guilty of Murder. These considerations, among others, have such Weight with me, that I dare not accept of the Power you offer me, as the sole Judge in impeachments, till it is demonstrated to me that the Law has invested me with it ; when that is done, I will chearfully comply with what my Duty requires of me ; but till then you will excuse me if I decline any such Jurisdiction, least I may justly subject myself to the Charge of Establising a New Judicature, usurping an illegal Power, infringing the Liberties of the People, and in short, of Subverting the Constitution.
" Permit me now to remind, you Gentlemen, that the Defence and Protection of this Province greatly depends on your attending, without Loss of Time, to the Several Weighty Matters recom- mended, recommended to you in my Messages of the Seventeenth of October, and Third of this Instant ; and therefore, I again most earnestly entreat you that every Consideration of less moment and Publick Concern, may in your deliberations give place to them, and that you will defer all other Matters to more Leisure and Con- venient Season.
" WILLIAM DENNY.
" January 13th, 1758."
At a Council held at Philadelphia, Thursday, the 18th January, 1758.
PRESENT :
The Honourable WILLIAM DENNY, Esquire, Lieutenant Gov- ernor.
Richard Peters, Esquire.
Yesterday Two Members waited on the Governor with the fol- lowing Message, which was read and ordered to be entered :
A Message to the Governor from the Assembly.
" May it Please your Honour :
" We cannot help expressing our Surprize that you should be at a Loss to conceive what could give rise to our apprehensions that
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you had attempted to establish a New Court of Judicature, un- known to the Constitution. For the cause we think we could safely appeal to your Honour's Heart, but we know we can to your expressions. In your Message, of the Ninth instant, you expressly inform us that common Justice required that no man should be condemned unheard in any Matter that affected his Life, Fortune, or Character, and therefore declared your design of giving William Moore an Opportunity of making his Defence ; That from the moment you received the Address of the late Assembly for his Removal, you were determined on a full and close inquiry into the Charges against him, to make a Publick Example of him as far as your Power extended ; And that to that End you had Appointed the same Day for Hearing all the Proofs in the Case, after due Notice given to the Parties and their Witnesses, and accordingly attended with your Council in the Council Chamber. Certainly we should be incredulous indeed and very defective in our Apprehen- sions, did not these Positive Declarations prevail on us to believe you did attempt to set up a New Judicature ; and had not our Ser- geant-at-Arms for a very high Misdemeanor arrested the person intended to be tried, that attempt had been fully executed. If the issuing process to convene the parties before your Honour and, your Council, the giving of orders for the Summoning of Wit- nesses by the Sheriff and his Deputies, in order to hear all the Proofs in the Case, & thereupon to acquit or condemn the person charged, and a Meeting at the Council Chamber for that Purpose, are not evident Proofs of such Attempt, we leave the impartial to determine.
" These are what your Honour calls proper Steps to enquire into the Truth of the many Petitions against William Moore, though you are pleased to declare that you could not be so absurd as to suppose you had a Judicial Power to arraign, Try, Condemn, and Punish. If you did not intend to arraign, why was the party charged to come before your Honour and Council ? If not to try or judicially determine, where was the use of Witnesses ? If not to condemn or acquit, what could you mean by the Intimation that no man should be condemned unheard ? If not to Punish, how could you make a publick Example of him ? or if no Judicial De- termination was to be had thereon, what could be the design of hearing the Proofs, and giving the Party an Opportunity of making his Defence ?
" As to the propriety of these Steps, we beg leave to remark that they are not supported by our Charters, or the Laws of the Con- stitution, nor by any Precedent in our Mother Country, and have a Tendency to institute an Authority never attempted by our Gracious Sovereign, or any of his Councils; Steps that may be of Danger- ous consequence to the Lives, Liberties and Properties of the Peo- ple ; and should your Honour and Council Pursue them, we Know
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not where they may end, For if you and your Council may, without the Shadow of Law, institute a full and close enquiry, at which you are to hear all the Proofs, and Examine the Witnesses upon Oath, give the Party charged an opportunity of making his Defence, and of being acquitted or Condemned, in this case, you may with the same Kind of reason and Degree of Law do it in every other, and at Last determine not only Matters which affect the Properties, but the Liberties and Lives of the Subject, and that without the Secu- rity which ever must attend an antecedent Trial before, and Im- peachment by the delegates of the People. Wherever a Person in a judicial Capacity breaks over the Verge and Confines of Law, he may rove in the field of Oppression and never stop, his Power be- comes Transcendent and unconfined indeed; Your Honour will, therefore, excuse us for Thinking that in the Establishment of a Power so unlimited, the Lives, Liberties and Properties of the Peo- ple are very intimately concerned, and may be more essentially affected than where they cannot be tried by the Impeachment of their Representatives.
" We have again considered, and still persist in our request, that you would either remove William Moore from his Publick Offices, or permit us to impeach him of the many heinous Misdemeanors charged against him, some of which are not cognizable in the ordi- nary Courts of Justice ; We have no doubt respecting our Right to impeach, nor are we Obliged to your Honour for admitting it, For argument Sake only. The Charter of Privileges and a Law of the Province are declarative of it in too explicit Terms to admit of the least doubt with the meanest and most prejudiced capacity, and we still are of Opinion, that your Honour ought to Determine on such an Impeachment ; By the Royal Grant the Governor and Assembly here are Constituted the Two Branches of the Legislative Authority, the one holding his Power under the Crown, the other deriving their Authority from the People, and a Negative on our Laws is reserved in the Crown, each of which we agree have inherent in them, dis- tinct Prerogatives, Privileges, Powers, and Jurisdictions, founded in the Nature of their Institution and the Principles of an English Government ; and that to the Powers of each are annexed certain Requisites not expressly granted by the Royal Charter, which are to be exerted occasionally. for the necessary Support and exercise of their respective Jurisdictions for the Peace and Safety of the Province. The Governor here may be deemed to Supply a middle state, and from the Nature of his Institution must be invested with these Powers and Requisites ; and we apprehend ought, and was intended, to Supply the Place of a House of Lords in an Inferior Degree, with respect to Hearing and Determining on Impeachments. This can- not be denied, consistent with the Freedom and Principles of an English Government, where the Right of the Commons to redress Grievances is one of the most essential Checks in the Constitution. Without this Power in the Governor, there must be a manifest
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Failure of Justice. The Proprietary Officers and others may be Guilty of the most Atrocious Offences, not cognizable in the ordinary Courts of Justice, and the Government will be destitute of the Means of punishing them, Which would be such a defect in our Constitu- tion that common Sense forbids the Supposition. Of this opinion was a former Assembly of this Province on the like occasion, where they assert that the Power of impeaching Criminals is incident to the Legislative Authority, for the Common Safety, and that the Ends of Government cannot be answered without it; And in pur- suance of this opinion they resolved, N. C. D. :
"'First. That the Present Constitution of this Government, which vests the Legislative Authority in the Governor and Representatives of the People of this Province, does well Warrant us to impeach, and the Governor to Judge of such Impeachments.
"'Secondly. That the Council having, by our Constitution, no share in the Legislative Authority, ought not to sit with the Gover- nor Judicially upon such Impeachments.'
" But your Honour is pleased to say that no such Jurisdiction is given you by the Charter, or elsewhere, that you can find. We agree that it is not expressly, but contend that it is implicity granted to you as the Middle State of our Legislature, and founded in the very Nature of your Institution. If you have no other Powers or Jurisdiction but those which are expressly delegated and granted, by Virtue of what express Authority or Power of altering and amend- ing Bills passed by the Assembly, and of putting an absolute Nega- tive on them, with other Powers and Rights belonging to the House of Lords alone, and no more expressly granted than the Power of Judging on Impeachments ? It cannot be by Virtue of your Repre- sentation of the Crown, because His Majesty never exercised such Powers; And therefore we Confess we cannot understand why you should be so fond of assuming the one and fearful of the other. We hope it cannot proceed from an inclination to screen Wicked Ministers from Justice, and to render ineffectual an essential and invaluable Power of the Constitution.
" We beg leave further to remark, that the Governor's assuming a Power to determine on the Impeachments of the Assembly cannot be attended with the Least Insecurity to the Lives and Liberties of the People; But on the Contrary, the Invaders of their Liberties and their Oppressors by this means will be brought to Justice, who otherwise would oppress on with Impunity, and the Distressed Sub- ject be without Redress. Your Honour will remember that ante- cedent to any Impeachment before you, the Grand Inquest of the Province, The Representatives of the People, his Peers and Equals, must be made sensible of his Guilt. A Sheriff may be corrupted, a jury packed, a Court who hold their Commission during Pleasure may be influenced, but it unnatural to presume that the Represen- tative Body of the People should be partial, corrupted, or do injus-
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tice. Besides, your Honour has the Same Power which you are so fearful of assuming, whenever a Bill of Attainder or Disability is presented for your Approbation ; and in that case the Lives, Liber- ties, and Properties of the People are as much in your Hands as in the case of Impeachments with this Difference only, that in the first you may Determine on the Report of the Assembly only, but in the Latter there must be a judicial and Solemn Hearing.
" We are sorry we cannot see the Virtue of refusing to determine on the Impeachment of the Assembly any more than that of in- stituting a New Court of Judicature without their Assent. The Instance you give us of a Preceding Governor's Virtue in declining to act as a Judge in a case of Impeachment must certainly arise from your not being acquainted with his Character. He was a Gen- tleman remarkable for being destitute of every Virtue, either Moral, Political, or religious. The Government was in a continual Fer- ment during his whole Administration ; The Rights of the People in perpetual Jeopardy by his Arbitrary and unjust invasions. He was charged by the Assembly with being Guilty of Frequent and notorious excesses and Debaucheries, not fit to be rehearsed, and that his Behaviour was offensive to God Almighty, Dishonourable to the Queen, and Encouraging all manner of Wickedness, and upon their Complaint removed from his Government. Whence we are induced to believe that this Gentleman's declining to determine on impeachments did not proceed from any Disrelish he had to Power, or from his Virtues, either Publick or Private, but from a determined Resolution to protect a Favourite.
" Had your Honour, upon the Address of the Late Assembly, founded upon the most impartial Enquiry, paid that Regard to it, and the Examinations of many disinterested Witnesses laid before you, which we humbly conceive you ought to have done, and removed William Moore, this dispute about your Power to determine on Impeachments had not happened; But, may it please the Governor, when we perceive you are deaf to the Address of that Assembly, regardless of the Affidavits laid before you, instituting a New Court of Judicature for his Tryal, without the Assent of the Repre- sentatives of the People, and in the mean Time permitting him to ex- ercise all the Powers of his Offices, and the means of his former oppres- sion, to the great Terror and anxiety of the People, who continue to exhibit to this House fresh Complaints against him, We cannot be silent. We beg leave to say, it is usual with the Crown to remove wicked Ministers on the Address of the Commons ; Sometimes when that Address is founded on rumour only, and often when on an Examination before the House. And a foriner worthy Governor of this Province, when he was about to Pass a Bill of Disability, re- quired no other Satisfaction of the Guilt of the Person than what he collected from a Conference with a Committee of Assembly. It is well known, that the Complaints against this Gentleman are not
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of a late Date only; your Honour is the Third Governor to whom the People have applied for redress against his Oppression, but as yet remain without relief.
"We, therefore, entreat Your Honour to Consider, that the Principle Powers of our Assemblies are those of making Laws, granting Aids to the Crown, and redressing the Grievances and Oppressions of the People. The first, you well know, is highly invaded and greatly diminished by Arbitrary Proprietary Instruc- tions, now in your Possession, which you have declared you are bound to Obey. The Second has been greatly violated by the fre- quent and constant Amendments in our Money Bills, directing the Assemblies as to the manner, Measure, and Time of Granting Sup- plies ; insomuch, that tho' they have not admitted such Amend- ments, yet they have often been necessitated, for the preservation of the Country, to Frame New Bills agreeable to them. And should your Honour persist in refusing to remove William Moore, on the Address of the late Assembly, and the earnest Solicitations of this, and will not exercise your Power of determining on the Articles of Impeachment we are ready to exhibit against him, the Third and last, that of redressing Grievances, will, in a great measure, be rendered ineffectual; A failure of Justice must ensue in the Government; Wicked Ministers and Majestrates may Oppress the Subject and Distress the Poor, with impunity ; That important Check, in the Constitution, on the Actions of Wicked Officers, who hold their Commissns. during pleasure, will be wanting; The three only essential and important Branches of the Assembly's Authority will be manifestly violated; The whole Powers of the Constitution be vested in the Hands of the Governor, and our excellent mixt Frame of Government totally dissolved.
" Under these circumstances, we entreat your Honour would con- sider with what Spirit or Pleasure can the Assemblies of this Pro- vince give, or the People pay, their aids to the Crown. We are a faithful and Loyal People, Solicitous of assisting in the General Defence of America, as well as in that of our own Particular Pro- vince ; we are willing and ready to grant Supplies, if our Gov- ernors would leave us in the Possession of anything worth De- fending. Redress our Grievances, relieve our fellow-Subjects from Oppression and Slavery, restore the Constitution, and every thing your Honour can reasonably ask will chearfully be granted.
"Signed by order of the House. "THOMAS LEECH, Speaker.
"January 17th, 1758."
Teedyuscung, Tapiscawung, Pamylachad, Onangintolany, or John, Teedyuscung's Son, attending without, were sent for into Council, and the Governor acquainted Teedyuscung that he ex-
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pected to have seen him on Monday according to Appointment ; but was glad to see him now, and ready to hear his Business.
Teedyuscung thanked the Governor, and spoke as follows : " Brother :
" I wipe your eyes that you may see clear, and behold our Wives, children, and Grand Children, as long as the World endures."
A String.
" Brother :
" This is to remind the. Governor of the Union of Hands, entered into first by the late Governor Morris at Easton, with the Ten Con- federated Nations, their Uncles, the Six Nations, and this Govern- ment, which has been happily confirmed in the Treaties held since your Arrival. I don't doubt but you will still assist in preserving that Union, and continuing the mutual Affection and Friendship then engaged to one another."
A String.
" Brother :
"I now confirm the Union and good Harmony established be- tween us, and assure you, I do it not only with my Mouth but my Heart, and with the greatest sincerity."
. A String.
" Brother :
" We were told in one of your Speeches that you were rich, tho' the Indians were poor ; and therefore, I entreat you to enable me to make the Fire that was kindled at Easton blaze up high, that it may be the better seen by all the Indians, and that they may be brought to join in this good Work, which will be attended with Expence, and this, as I have it not myself, must be provided by you."
A Belt of Eight Rows.
The Governor made answer as follows :
" Brother :
"I now in return wipe your Eyes, and assure you that I will af- fectionately remember your Wives and Children, and keep them in my mind to the latest Posterity. In Confirmation whereof, I give you this String."
A String.
" Brother :
"You may be assured I shall use my utmost Endeavours to establish the Peace so happily concluded at Easton, between the People of this Province, and their Brethren, the Indians."
A String.
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PROVINCIAL COUNCIL.
"Brother :
" I am sensible we are richer than you, and therefore, I give you this Belt, promising that I will use my best Endeavours with the wise Men that are now sitting to enable you to make the greatest Advantage of the present happy Peace, and to bring as many more Indian Tribes as you can influence into the Peace."
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