USA > Pennsylvania > Colonial records of Pennsylvania, Vol. VIII > Part 45
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"' And your Majesty's said Attorney and Sollicitor General further Certified that the said Assembly being apprehensive that the peti- tioner might apply for a Writ of Habeas Corpus, in order to his Discharge, they did pass the following vote :
"'Ordered, That Mr. Speaker do give it in Charge to the Sheriff, to keep his Prisoner, Mr. Smith, provost of the Academy of Phila- delphia, in close Custody, agreeable to the Directions of the Com- mitment to him delivered, And that he do not obey any Writ of Habeas Corpus or other Writ whatsoever, that may come into his Hands for bailing or discharging the said William Smith, or other- wise discharging him from his Custody, on any pretence whatsoever, and that this House will support him in his Obedience to this Or- der.'
"' And they further find that when the Petitioner, upon the 4 of February, applied to the Chief Justice of the province to grant him your Majesty's Writ of Habeas Corpus, the said Chief Justice re- fused the same, alledging that as the Petitioner was committed for a Breach of Priviledge, He, the said Chief Justice, did not think himself authorized in granting an Habeas Corpus, and bailing the petitioner during the sitting of the House.
" 'That upon this State of the Facts, the Council for the peti- tioner insisted
" '1st. That the Assembly had no right to take Cognizance of this offence, and erect themselves into a new court of Judicature by trying and punishing any man for a Crime, which by the ordinary course of Law was only cognizable in his Majesty's Courts of Justice, & tryable by a Jury.
"'2. That abetting the publication of the Libel was no contempt or Breach of the priviledge of the Assembly; nor was so described either in the charge or Sentence drawn up against the petitioner.
"'3. That it was Arbitrary and illegal to refuse the Petitioner the Liberty of arguing against the Jurisdiction of the Assembly, or to shew that the paper in question was no Libel.
"'4. That admitting the paper to be a Libel, and likewise a Con- tempt of the Assembly ; and admitting, likewise, that an Assembly in America had a Jurisdiction to try and punish Contempts and Breaches of Priviledge, yet that this Right could exist no longer than that Body existed, which had been so insulted; and that, therefore, in the present Case the Assembly, so reflected upon by the paper in Question, being dissolved, no future Assembly could take up the Consideration of this matter.
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"' Lastly. That it was a high Violation of your majesty's Pre- rogative, and a subversion of the Law, to issue an Order, command- ing the Sheriff to pay no Obedience to your Majesty's Writ of Habeas Corpus.
""' In answer to which it was insisted, That all Courts of Justice, and all Branches of a Legislative Body, had a Right to punish Contemts against themselves, and that the House of Commons in England had always asserted and exercised such Right.
"' That the Libel in Question was a manifest Contempt of the authority of the Assembly, arraigning their publick acts, and charg- ing the whole Body with Injustice, Oppression, and Calumny, and as such, was the highest Breach of Priviledge, tho' not so called in the Charge.
"' That if it be once admitted that this Libel was an Offence of this kind, and properly cognizable by the Assembly, it was highly im- proper to suffer the point of Jurisdiction to be argued, on the nature of the paper to be debated at the Bar, wherein the Assembly had followed the Example of the House of Commons in Great Britain.
"'That according to the Reasoning of the Council for the peti- tioner, as the Assembly, by the Laws of Pennsylvania, meet and are dissolved annually, every House of Assembly would subject to the Scandal & abuse of every Libeller, who would be content to wait till the Dissolution; or if he presumed to insult them even during their Sitting, might be sure to escape with Impunity, by keeping out of the way till they were disolved.
"' That, though the Order to the Sheriff might be irregular, yet it was done upon a presumtion, that if the Writ had issued, the prisoner must have been remanded, because it is a Commitment in Execution, and not bailable.
"' Upon the whole, Your Majesty's Attorney & Sollicitor Gene- ral, were of Opinion That the paper in Question, was a Libel, and if it had been published whilst the Assembly was sitting, which it had aspersed, They would have had a right to have punished the Authors & publishers thereof, the same being a manifest Contempt. But after that Assembly was dissolved, that kind of Jurisdiction ceased, and the subsequent Assembly had no right to take up the Consideration of this Offence as a Contempt to themselves, who were not then in being, and consequently, could not be aimed at, described, or calumniated, by a Libel published before their elec- tion.
"' That this objection appeared upon the Face of the warrant of Commitment, and the Distinction had been frequently taken with respect to proceedings for contempt, even by the House of Com- mons in Great Britain; but even supposing the Jurisdiction of that House in Similar cases might be extended further, according to the Law and usage of Parliament, Your Majesty's said Attorney and Sollicitor General, were humbly of Opinion that this extraordinary power ought never to be suffered in these inferior Assemblys in
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America, who must not be compared, either in power or privileges, to the Commons of Great Britain, and that it was observable that the Assembly themselves, had studiously avoided to declare the Li- bel to be a Contempt, or Breach of Priviledge, either in the Charge or sentence pronounced, notwithstanding that the Contempt to themselves, the then existing Assembly was the only legal, or co- lourable Ground upon which they could take cognizance of the mat- ter, in order to punish the Offender.
"' And lastly, that they were of Opinion that it was a high and unwarrantable Invasion, both of your majesty's Royal perogative, and the Liberties of the Subject, to order the Sheriff not to Obey your majesty's Writ of Habeas Corpus, and that, as Mr. Smith was guilty of no offence against any Assembly then in being, and no As- sembly had a right to proceed against him for a Contempt to any former Assembly; and as the Law had provided sufficient remedy in all cases of illegal and Arbitrary Commitments, It was their Opin- ion that the petitioner should be directed to seek redress (as he should be advised), in the proper Courts of Justice, in your ma- jesty's province of Pennsylvania; and that your majesty, if it was your Royal pleasure, might graciously issue your Orders to the Governor of Pennsylvania, to take care that in all Cases, your ma- jesty's Writ should issue free according to Law, and that all Of- ficers of Justice and others, should be protected in the due Execu- tion of them, and that no person or persons whatsoever, should pre- sume to disobey the same.
"' The Lords of the Committee, this day taking the said Peti- tion & Report, and the whole matter into their serious considera- tion, and agreeing in Opinion with your Majesty's Attorney and Sollicitor General, upon all the points above stated, do humbly Re- port to your Majesty that the House of Representatives of Penn- sylvania appear to have assumed to themselves Powers which do not belong to them, and have been guilty of a high and unwarrant- able Invasion, both of your Majesty's Royal prerogative and the Liberties of the subject, to the Oppression of the Petitioner, and which may be of Evil example in others, your Majesty's Planta- tions; and therefore, that all Proper and legal methods should be taken to assert your Majesty's Royal authority for the future, and that, in the mean time, your Majesty may be pleased to direct the Petitioner to seek redress (as shall be advised) in the proper Courts of Justice, in your Province of Pennsylvania; and also to issue the strictest orders and commands to the Governor of Pennsylvania, for the time being, to take the utmost care that in all Cases your, Majesty's Writs should issue freely, according to Law; and that all Officers of Justice and others, should be protected in the due execution of them, and that no person or persons whatsoever should presume to disobey the same; and further, that the Gov- ernor of the said province, for the time being, be commanded . to signyfy to the assembly there, your majesty's high displeasure
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against all such unwarrantable proceedings and Oppression of the Subject, and be required to take the utmost Care ; and to use all the means in His power to support and preserve the Laws & your majesty's prerogative against all Usurpations and Encroachments whatsoever by the assembly of that province, at all times and on all Occasions.'
"The Lords of his majesty's most honourable privy Council, this day took the said Report into Consideration, and were pleased to approve thereof, and do hereby, in his majesty's name, declare his high Displeasure at the unwarrantable Behaviour of the House of Representatives of Pennsylvania, in assuming to themselves powers which do not belong to them, and invading both his majesty's Royal Prerogative, and the Liberties of the subject; and their Lordships do, therefore, hereby order that the Governor, or Commander-in- Chief, for the time being, of the said Province of Pennsylvania, do forthwith signify the same to the, said Assembly accordingly, and take the utmost care, and use all the means in his power to support the Laws and his majesty's prerogative against all Usurpa- tions and encroachments whatsoever, by the Assembly of that province, at all times and upon all occasions ; and that the Governor or Commander-in-Chief, for the time being, do likewise take care that, in all cases, his majesty's Writs do issue freely according to Law, and do protect all. officers of Justice, and others, in the due Execution of them, and that no person or persons, whatsoever, do presume to disobey the same; and that, with Regard to the peti- tioner, their Lordships are hereby further pleased to direct that he do seek redress (as' he shall be advised) in the proper Courts of Justice, in the province of Pennsylvania, whereof the Governor, or commander-in-Chief, of the said province of Pennsylvania, for the time being, and all others whom it may concern, are to take notice, and govern themselves accordingly.
"W. SHARPE."
And were laid before the Assembly with the following message :
A Message to the Governor from the Assembly.
" Gentlemen :
" Having been served by the Reverend Mr. William Smith, Doctor of Divinity, with an order made by his majesty's most Hon- ourable privy Council, on the 26th of June last, upon the petition and Appeal of the said William Smith to his majesty, complaining of Certain Hardships, and Oppressions, alleged to have been suffered by him from the Assembly of this province, for the Year 1758 ; I herewith lay before you both the said original Order and the peti- tion of the said Doctor Smith to me thereupon.
" And as I am therein commanded, in the King's name, forth- with to signify to you his majesty's high displeasure at the unwar-
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rantable Behavior of the said Assembly, in assuming to themselves powers which did not belong to them, and invading both his ma- jesty's Royal prerogative, and the Liberties of the people, I do in obedience to the order, hereby signify the same to you accordingly. "JAMES HAMILTON.
" February 13th, 1760."
The following Message, in answer to the Governor's of the 12th of February, was delivered to him by two Members :
A Message from the Governor to the Assembly.
" May it Please your Honour :
" We have again, at your Instance, taken into our Consideration the subject of disbanding our Forces at our last meeting, and as nothing new is offered either in General Amherst's Letter, laid be- fore us, or your Message, to induce us to alter our Opinion, we can- not help approving our former Resolution, which was founded on the practice of the other Colonies, on a principal of Humanity towards our Forces, who, during the space of Three Years and upward had not had the relief of Winter Quarters, but been confined without Intermission to hard Military Duties, and upon a conviction of the Incapacity of our Constituents to support the Expence of main- taining so large a number of men from Year to Year. But our reasons on this head are so fully set forth in our message to your Honour of the eighth of December, that we apprehend had General Amherst been acquainted with them, and reflected on the practice of the other Colonies, he could not, with propriety, have called that measure an 'hasty' one, which was taken in this province after many others of the Colonies had shewn the Example.
" What 'Distress,' this Measure can have brought on General Stanwix, we are at a loss to judge, as we presume had he Occasion of more men to the Westward, he would have drawn off from Lan- caster the several Companies of Regulars now in Winter Quarters at that place.
" To Which your Honour will give us leave to add, that it can- not be reasonably expected we should, before we have the least inti- mation of his Majesty's intended operations for the Ensuing Cam- paign in these parts of his Dominions, or what aid he shall be graciously pleased to demand of this province, proceed in granting supplies or raising new Levies for purposes which we are not acquainted. Your Honour may be assured, whenever these are laid before us, of finding the same zeal and chearfulness in promoting, according to our Abilities, his Majesty's Service, and the good of the province, which have been so repeatedly manifested by this part of the Legislature during the Course of the present War.
"Signed, by order of the House,
"ISAAC NORRIS, Speaker.
"February 15th, 1760.",
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On the 21st of February the Governor sent to the House another Letter from General Amherst with a Message, which were both ordered to be entered.
A Letter to the Governor from His Excellency General Amherst. NEW YORK, 14th of February, 1760.
" Sir :
" Yesterday Evening arrived the Earl of Leicester Packett, and by her I am honored with a Letter from Mr. Secretary Pitt, of the Ist of December last; and altho' he does not send me his Majes- ty's Commands for the Operations of the Ensuing Campaign, yet he directs me to make all the necessary Preparations for pushing the War with the utmost Vigour as early in the Year as the season will permit, and thereby compleat the great work so succesfully be- gun, of rendering his Majesty entire Master of Canada.
" In order, therefore, to enable me to fulfill these Instructions, I must renew to you my most earnest Sollicitations for your mov- ing your Assembly to make immediate Provision for the same or a greater number, if possible, of Men than they did for the last Campaign; and to have them in such immediate readiness, that when I inform you of my intentions to take the field, which shall be as early as possible, I may be certain of the motion and Junction of all the Forces at the times and places which I shall hereafter ac- quaint you with, which I shall be able to do more particularly, upon the arrival of Colonel Amherst, whom I expect out soon with the King's Ulterior Commands for the ensuing Operations.
" I am, with Great regard, Sir, " your most Obedient humble Servant, ' " JEFF. AMHERST.
" the Honourable Governor HAMILTON."
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A Message from the Governor to the Assembly. 1
" Gentlemen :
" I now lay before you a second Letter from his Excellency Gen- eral Amherst, upon the same subject with that which I communi- cated to you at the opening of the Session, Vizt. : The making a provision for a new Levy of men, on the part of this province, for the service of the ensuing Campaign.
" As I cannot think of any motive to induce you to a Compliance with the General's requisition, stronger than those I made use of in my message of the twelfth instant, allow me to refer you to that Message, and to the General's Letters upon the subject, in the last of which, the reason, that I may say necessity, of the proposed measure is set forth more authoritatively than it was in his power
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to do before the receipt of his Letters from his Majesty's principal Secretary of State for this Department.
" You will, therefore, further allow me, Gentlemen, to recom- mend it to you to reconsider all that has passed upon this occasion, and the evident necessity there seems to be that all his Majestie's Colonies should, at this time, contribute liberally towards bringing to a happy Conclusion, the War hitherto so Successfully carried on ; and then, I doubt not, but you will think it incumbent on you to make such a provision for the intended Operations, as shall be thought equal to their importance.
"JAMES HAMILTON.
"February 21st, 1760."
At a Council held at Philadelphia, Tuesday, 26th of February, 1760.
PRESENT :
The Honourable JAMES HAMILTON, Esquire, Lieutenant. Governor.
Robert Strettell,
Thomas Cadwallader,
Richard Peters, ! Esquires.
A Letter from the Right Honourable Mr. Secretary Pitt of the 7th of January last, together with General Amherst's Letters, in- closing the same, were read, considered, and laid before the As- sembly, with the following Message, which had been prepared by the Governor:
A message from the Governor to the Assembly.
" Gentlemen :
"Since my message to you of the twenty-first instant, relative to a Levy of Men from this province, for the service of the ensuing- Campaign, I have had the honour to receive from the Right Hon- ourable Mr. Secretary Pitt, his Majestie's Commands to the follow- ing purpose, viz: That I should forthwith use my utmost Endea- vours and Influence with the Council and Assembly of this Prov- ince, to induce them to raise, with all possible Dispatch, within my Government, at least as Large a Body of men as they did for the: last Campaign, and even as many more as the number of its In- habitants may allow; and that forming the same into Regiments,, as far as shall be found convenient, I should direct them to hold themselves in readiness, as early as may be, to march to the Ren- dezvous, at such place or places as may be named for that pur- pose, by the Commander-in-Chief of his majesty's Forces in Amer -- ica, or by the Officer who shall be appointed to command the: King's Forces in those parts, in order to proceed from thence, in VOL. VIII .- 29.
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Conjunction with a Body of his Majestie's British Forces, under the Supreme Command of the Officer to be appointed as above, So as to be in a Situation to begin by the first of May, if possible, or as soon after as shall be any way practicable, Such Offensive Operations as shall be judged, by the Commander of his majesty's Forces in those parts most expedient for annoying the Enemy.
" The King is pleased to furnish all the men, so raised as above, with Arms, Amunition, and Tents, as well as to order provisions to be issued to the same by his Majestie's Commissaries, in the same proportions & manner as is done to the rest of the King's Forces ; that a sufficient Train of Artillery will be also provided at his Ma- jestie's Expence, for the Operations of the Campaign ; and that the whole that the King expects and requires from the several Pro- vinces, is the Levying, Cloathing, and paying of the men. And on those Heads, also, that no encouragement may be wanting to the fullest Exertion of your Force, his Majesty is further most gra- ciously pleased to permit that you be acquainted that strong recom- mendations will be made to Parliament, in their Sessions next Year, to grant a proper Compensation for such Expences as above, accord- ing as the active Vigour and Strenous efforts of the respective Pro- vinces shall justly appear to merit.
"As I have, Gentlemen, ordered the whole of the Secretary of State's Letter (of which the above is an extract) to be laid before you, you will therein see, and cannot but be filled with Gratititude at the gracious and Affectionate manner in which his Majesty is pleased to take notice of his North American Subjects, and to men- tion his Expectations that they will continue most chearfully to co- operate with, and second, to the utmost, the large expences and extraordinary Succors supplied by Great Britain for their preserva- tion and security. I do, therefore (as well in obedience to his Ma- jesty's Commands as from a full Conviction of the expediency, and even necessity of the measure), think it my Duty to press you in the warmest manner to make provision, with all possible Dispatch, for raising as large a Body of men for the service of the ensuing Campaign, as you did for the last, and even of as many more as the number of our Inhabitants may allow, so that they may be assem- bled at the Rendezvous, hereafter to be appointed by General Am- herst, by the tenth of April next, at furtherest, agreable to his Excellency's expectations signified to me in his Letter of the twenty- first instant, now likewise laid before you.
"I persuade myself, Gentlemen, I need not make use of many words to induce you to exert yourselves at this critical Juncture. His Majesty's Orders are arrived and laid before you. The occa- sion is weighty & pressing ; and I cannot doubt of finding in you the same Zeal and Chearfulness in promoting the King's Service and the good of the province, which have been so often manifested by former Assemblies.
" JAMES HAMILTON.
" February 27th, 1760."
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The Secretary of State's Letter to the Governor.
" WHITEHALL, January, 7th, 1760.
“ Sir :
" His Majesty having nothing so much at Heart as to improve the great and important advantages gained the last Campaign, in North America, and not doubting that all his faithful and brave Subjects there will continue most chearfully to co-operate with and second, to the utmost, the large expence & extraordinary succors supplied by this Kingdom for their preservation and future Secu- rity : and His Majesty considering that the several provinces from Pennsylvania inclusive to the Southward, are well able, with proper Encouragements, to furnish a Body of several thousand men to join the King's Forces in those parts for some offensive Operations against the Enemy, and his Majesty not judging it expedient to Limit the Zeal and Ardor of any of his provinces, by making a Repatition of the Forces to be raised by each respectively, for this most important Service, I am commanded to signify to you the King's pleasure that you do forthwith use your utmost Endeavours and Influence with the Council and Assembly of your province, to induce them to raise with all possible Dispatch within your Govern- ment at least as large a Body of Men as they did for the last Cam- paign, and even as many more as the number of its Inhabitants may allow, and forming the same into Regiments as far as shall be found convenient; that you do direct them to hold themselves in readiness, as early as may be, to march to the Rendezvous at such place or, places as may be named for that purpose by the Commander-in-Chief of his Majestie's Forces in America, or by the Officer who shall be appointed to com- mand the King's Forces in those parts, in order to proceed from thence in Conjunction with a Body of his majesty's British Forces, and under the supreme Command of the Officer to be ap- pointed as above, so as to be in a situation to begin by the first of May, if possible, or as soon after as shall be any way practicable, such offensive operations as shall be judged by the Commander of his Majesty's Forces in those parts, most expedient for annoying the Enemy; and the better to facilitate this important Service, the King is pleased to leave it to you to issue Commissions to such Gentlemen of your Province as you shall judge, from their Weight & Credit with the People, and their Zeal for the publick Service, may be best disposed and enabled to quicken and effectuate the speedy levying of the greatest number of men; In the Dispositions of which Commissions, I am persuaded, you will have nothing in View but the good of the King's Service, and a due Subordination of the whole, when joined to his majesty's Commander; and all officers of the provincial Forces, as high as Colonels inclusive, are to have rank according to their several respective Commissions, agreable to the regulations contained in his Majesty's Warrant of the 30th of December, 1757.
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"The King is further pleased to furnish all the men, so raised as above, with Arms, Ammunition, and Tents, as well as to order provisions to be issued to the same by his Majestie's Commissaries, in the same proportion and manner as is done to the rest of the King's Forces; and a sufficient Train of Artillery will also be pro- vided at his Majestie's expence, for the Operations of the Campaign. The whole, therefore, that the King expects and requires from the sev- eral Provinces, is, the levying, cloathing, and pay of the men ; and on these heads also that no Encouragement may be wanting to the ful- lest exertion of your Force, his majesty is farther most graciously pleased to permit me to acquaint you that strong Recommendations will be made to Parliament, in their Session next Year, to grant a proper Compensation for such expences as above, according as the active Vigour and strenous efforts of the respective provinces shall justly appear to merit.
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