USA > Pennsylvania > Colonial records of Pennsylvania, Vol. VIII > Part 55
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"' An Act for the more effectual Suppressing & preventing Lot- teries & Plays.'
"This Act, my Lords, has two Objects in its view, as the Title of the Bill imports, the one for the more effectual Suppression of Lotteries, the other for prohibiting, under a very severe penalty, the exhibition of Stage plays or any Theatrical representation what- soever. With respect to the first, the Suppression of Lotteries, there is a Law now in being for that purpose, which is stated to be ineffectual and of which it is proposed by this Bill to enforce the execution, by Adding to the penalty on the one hand ; it has not been denied, that notwithstanding the Law now in force, several Lotteries have been set up, and on the other it has been confessed that the Money arising from them has been constantly applied to the Support of a very laudable Institution, the Accademy in Penn- sylvania. If the suppression of Lotteries, my Lords, has been the Single object ofthis Law, tho' we think the penalties Imposed by it extremely heavy, and tho' we are not without some suspicion (by these penalties being transferred by this Law to the Hospital at Philadel- phia, which is particularly patronized by the Assembly, from the Accademy which has been largely Contributed to by the Proprieta- ries), that together with the desire of Suppressing Lotteries, there has been mixed some dissatisfaction at the preference which has been shewn to the Accademy; we should, nevertheless, had the Act been confined to the Single Object of suppressing Lotteries, have recommended it to his Majesty's approbation ; Because, my Lords, we are clearly of opinion that the raising money Contrary to Law, tho' it may in some degree be palliated, cannot possibly be justified by the unexceptionable application of it.
" Tho', my Lords, the two Objects of Suppressing Lotteries and plays, have been in this Act connected together by the Assembly, tho' they have been consider'd as equally deserving of discourage- ment, and therefore are to be Attended with exactly the same pen- alty, yet we beg leave to observe that the Crown has perpetually distinguished and considered them in a very different light. To Laws for the Suppression of Lotteries, it has in many of its Gov- ernments consented, and there is, as we have already stated to your Lordships, a Law now Subsisting in Pennsylvania for that purpose. To the Total prohibition of Theatrical Representations, We do not recollect the consent of the Crown has in any of its Governments been given, or even asked, and We know that to propositions of this sort, from the Assembly in Pennsylvania, it has frequently been refused. The argument, my Lords, upon which this part of the Act has been principally Supported, is drawn from a Clause in an Act of the present King, by which it is declared that Stage Plays shall be allowed only in places of Royal Residence. We appre- hend, my Lords, that it is an Acknowledged Method of Construc- tion that no Statute Law whatsoever can be supposed to extend either to Ireland or the Plantations by meer general Words and by
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Implication only, and unless they are specifically Mentioned; And We apprehend that Theatrical Representations continue to be not only permitted, [but] encouraged, in Ireland, exactly in the manner that they were before the passing of the said Act, without any Real or Supposed Violation of it; But tho' we do not see any Sufficient reason for an Absolute prohibition of all Theatrical Representations in Pennsylvania, and therefore shall beg leave to propose that this Act may not receive his Majesty's Allowance, yet we do not mean, my Lords, to encourage the unbounded & irregular Use of them. We are thoroughly sensible of the Mischiefs which might ensue from the establishment of any thing that had even a probable Ten- dency to introduce Idleness and prodigality in a Colony which seems so peculiarly indebted for its prosperity to frugality and industry. To prevent these Inconveniences, we should therefore wish to see some Law, which, if properly framed, We doubt not, would meet with his Majesty's Approbation, that might at once admit the mod- erate and regulated Use of such Amusements, and at the same time, by proper Limitations, prevent the Inconveniences that may attend their Excess.
"' A Supplement to the Act Intitled ' An Act for Establishing Courts of Judicature in this Province.'
" The 1st Object of this Act is to regulate the Jurisdictions of the several Courts in Pennsylvania, and in particular to transfer the de- cision of the Estates of Orphans and Intestates from the Orphans' Court to the County Court. As far, my Lords, as relates to this part of the Act, no Objection has been made on the parts of the Proprietaries, and the Regulations upon this head, as far as we are capable of judging, appears altogether unexceptionable. The second object of the Law is to change the Tenure by which the Judges now hold their Offices, not only in the province of Pennsylvania, but in every other Colony in North America and the West Indies, from Durante beneplacito to Quamdiu se bene gesserint. With respect to this latter point, it will be necessary for us only to re- mind your Lordships of the decision of the Crown upon this ques- tion, when the same principle was adopted by the Assembly of Ja- maica, and a Law passed to the same purpose, which the Crown thought proper to repeal upon an opinion given by his Majesty's Attorney and Sollicitor General, that it was not Expedient for the Interest of either the Mother Country or the Colonies, that Judges in the plantations should hold their places Quamdiu se benegesse- rint; and as your Lordships probably retain the same opinion upon the same point, We apprehend that this Act will not be permitted by the Crown to pass into a Law ; And we shall beg leave to assign some reasons why we think that the principle adopted by your Lord- ships in the Case of Jamaica, ought, for still stronger Reasons, to be adhered to in this Colony. In the original Charter granted by Charles the Second to Mr. Penn, the Crown has delegated, not merely by Virtue of his general proprietary powers, But by the
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most express and positive Terms, a right to the Establishment of Courts of Judicature, and to the nomination of Judges, under no limitation whatsoever, and we apprehend, it would be conformable to the Justice and lenity of the Crown, to permit a Law (obtained against their Consent, and by undue means), by which the Proprie- taries should be limitted in the exertion of those privileges to which they are Intitled by the Charter, when Nothing has been urged that can induce the Crown to believe that the proprietaries have, by an improper Exercise of those privileges, committed any thing which could Induce or Justify the Resumtion or limitation of them, and particularly as no Complaint whatsoever has been made, or any Inconvenience Stated to have arisen from the want of Justice in the Province being properly and regularly Administered ; on the Con- trary, it has been confessed that Men Of the greatest property and Character, have been, from time to time, appointed to the Station of Chief Justice, and that the rest of the Judicial Offices were filled by persons as well qualified as the Colony could supply, or a Salary so small as the present, could engage, and we cannot think that it would be advisable to depart from what experience has shewn to be attended with no ill Effects in this Colony, and under which it is Confessed on all hands, Justice has been hitherto so very unexcep- tionably administered. Tho' the arguments in favour of this Bill are supported by Analogy to the practice of the Mother Country, we must observe that the Change which the Tenure of Judges un- derwent at the Revolution, proceeded upon the most Conclusive and repeated proofs of the most arbitrary Interposition upon points of the greatest importance to the Constitution, and of the highest mo- ment to the Subject; In this Colony the Case is directly reversed, and therefore there cannot, we apprehend, be the same necessity for Extending that principle to Pennsylvania, and as we are Con- vinced that this Act can convey no real Benefit to the Inhabitants of this Province, so neither can we, by recommending it to his Ma- jesty's allowance, give Countenance to an opinion of its being Ben- eficial, least we should excite a just jealousy in the other Colonies, by seeming to extend Advantages to this proprietary Government, which have been denyed to those under his Majesty's more immi- diate Care. My Lords, independent of the general merits of this Act, we are humbly of opinion it would not be prudent to estab- lish it in the manner that is proposed ; for, by leaving no power in the proprietaries of appointing new Judges, it perpetuates in the Seat of Justice for the lives of the present possessors, men (excepting the Chief Justice only), of inferior knowledge, and of Secondary Capacity, tho' by the growing Wealth of the Province, a Salary may be advanced more adequate to the Imployment, and the Proprietaries be thus enabled to procure others more Suitable to that Station, and better qualified for the discharge of a Trust in which every individual of the Province is so materially interested.
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"' An Act for the relief of the Heirs, Devisees and Assigns of per- sons born out of the King's Legislature, who have been owners of Lands within this Province, and have died unnaturalized.'
" The professed intention of the Act, my Lords, which is now be- fore us, is to relieve the Heirs and Devisees of Foreigners, Settled and possessing Lands in the province of Pennsylvania, who have died unnaturalized, by which their, Estates have in Law Escheated to the Proprietaries. The Act proposes to take away from the pro- prietaries this Benefit of Escheat, and to vest the Lands escheated in the Heirs and Divisees of such foreigners dying unnaturalized exactly in the same manner as if they had descended from natural Born Subjects. We apprehend that tho' this Bill professes a Ten- derness to suffering Heirs and Devisees, its real object is to take away another of the Proprietaries' Rights, for tho' it is set forth in the preamble of this Act-that Inconveniences have happened from the want of such a Law, no Evidence has been produced nor has, there been a suggestion offered at our Board of any Grievance or Complaint whatsoever. But on the Contrary, the custom has uni- formly been on proper application to make out a new Grant to such Heirs or Devisees, conformable to the nature of the Inheritance or the purport of the Devisee, without Imposing any fine, or any new terms, or drawing any Lucrative Advantage whatsoever from the. Escheat. We see, therefore, no reason for recommending to his. Majesty's Approbation an Act by which it is intended to take away from the Proprietaries a Right to which they are indisputably inti -. tled by their prerogative, and which they seem constantly to have. Exercised in so disinterested a manner. And we Conceive that this Act with regard to its present and avowed object, seems although. unnecessary, for as it is now Circumstanced its operation will be .. only retrespective, and by that means it will provide only for those. who have, by the Confession of all Parties, already been provided for by the proprietaries' Indulgence, and with respect to the Pro- prietaries it would only confirm to the Heirs and Devisees the pos- session of those Lands in which they had before voluntarily invested' them by their Grants. But under this ineffective appearance the real design of the Act wo apprehend to be this, that the general principal of such a Bill, being once admitted as proper, and the Bill: itself being now Established as necessary, a necessity of the same. kind must, in a short time, again Occur, and what is now only to. operate retrespectively would be extended as a permanent Regula- tion to operate in future, nor indeed do we perceive any reason why the Law should be limited in its operation, if the principle upon which the Law is founded could be approved
" We beg leave further to observe to your Lordships that the Benefits purposed to be conferred by this Act are extended equally, and without distinction, to Strangers of every sort, and it is not our sense that any further privileges than those extensive ones already VOL. VIII .- 35.
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allowed by the Charter should be granted to any other foreigners than protestants, conformably to the Act of the 13th year of his present Majesty's for naturalizing foreign protestants in America, and it may not be improper to inform your Lordships that an Act of this Province, passed in 1700, was repealed by the Crown in 1705, on the Advice of her Majesty's Attorney General, Chiefly because it contained a provision similar to that which is the Object of this Law.
"' An Act for appointing an Agent to apply for and receive the distributive Share and proportion which shall be assigned to this Province of the Sum of Money Granted by parliament to his Ma- jestie's Colonies in America.'
" The Object of this Act is the Appointment of an Agent for the particular purpose of receiving the proportion of the money which shonld be allowed to this Province, out of the Sum of ££200,000 granted by Parliament in the year 1759, to be distributed to the Several Colonies in North America. The Act directs that the money should be received by Mr. Franklyn, the Agent nominated for that purpose, and should be by him deposited in the Bank of England, lyable to the draught of the Trustees of the Loan Office in Pennsylvania. The principal objection made to the Act, my Lords, is this, that it cannot possibly be complyed with in the man- ner there prescribed, for that the money being deposited in the Bank by Mr. Franklyn, the Governors will not enter into any Cor- respondence with the Trustees of the Loan Office aforesaid, or with any person but Mr. Franklyn concerning that Sum, and that they cannot issue money paid in by one person at the draught of any others, tho' the money should be paid in Expressly for their Use. Tho' we are inclinable to believe that the practice of the Bank is as it has been Stated ; Yet we are not satisfyed that this can be ap- plyed as a Conclusive Objection to this Act, nor even if it could, should We think it a Sufficient Reason, under the present Circum- stances of the Province, to Advice his Majesty to annul it, for, my Lords, by the manner in which the Act is worded, it is far from be- ing perfectly clear, whither,when the money was once deposited in the Bank as a place of Security, it was not the Intention of the Assembly that the Trustees of the Loan Office should draw upon Mr. Franklyn, and not upon the Bank, and this Construction has been contended for by the Council on the part of the Assembly. If your Lordships should be of opinion that this was their Inten- tion, the Act stands free from the Objection which has been made. But, my Lords, whether that was or was not the Case, we appre- hend that the Intention of the Assembly was clearly this, to receive their proportion of the Money with as much Expedition and Secu- rity as' possible ; with respect to the first Object of the expedition, their Intention in that will be totally defeated ; if the Act now be- fore your Lordships is to be repealed, No money will be issued from the Treasury, till his Majesty's disallowance of this Act is
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known in Pennsylvania, till' a new Act is passed in Consequence of it, And that again transmitted to England; with respect to secu- rity, we apprehend it will stand nearly upon the same footing. Mr. Franklin will be equally responsible for the money he receives, and will be equally bound, under the terms of the Act, to deposite it in the Bank, and we beg leave to observe to your Lordships, that the money distributed in the other Colonies in Consequence of the Votes of parliament, has frequently been received by the Agents of those Colonies under their General powers of Agency only, or by Virtue of a particular Appointment, Subject to no other Restric- tion than meerly the general direction of remitting it to the Colony which appointed them.
"As, therefore, no personal Objection has been made to Mr. Franklyn, and as the opposition to this Act is founded principally upon a Supposition that from the manner of wording the Act, the Intention of the Assembly cannot be strictly complyed with, we shall beg leave to recommend it to his Majesty's approbation, be- cause we are clearly of opinion that the Intention of the Assembly, and what is more material of the British House of Commons, will be better answered. That the Interest not only of the Province but the publick in general will be more Effectually promoted by letting this Act be carried into Execution, than by suffering the money Intended for the Encouragement of this Colony to lye Use- less in the Treasury, whereby the Publick Service very possibly may be retarded, and therefore the very Intention of Parliament in giving this money by that means be frustrated, meerly Because the Assembly did not know with Sufficient Accuracy, or did not attend with Sufficient Care in the directions of the Act to that presise manner in which money is received and issued at the Bank. And, my Lords, we are the more inclinable to recommend this Act to his Majesty's Approbation, because when we look back upon the Con- duct of this Province, when we Consider how often and how inef- fectually they solicited at the Commencement of the War to Con- tribute to the publick Service, We are extreamly disinclined to furnish, not only any real discouragement, but even any Colourable pretext for withholding that Assistance in which the welfare of the publick & of the province may be so essentially interested.
" With regard to the disposition of the Money, which is in this Act reserved solely to the Assembly, independent of the Proprie- taries, We have had often Occasion to State our opinion to your Lordships in the Course of this report; And we admit this Act to be, in that respect, very exceptionable, yet, my Lords, still adhering to our principle of uniformity, disapproving such incroachment, our Respect to the sense of the British Legislature, which intended that this Remittance should meet with as few delays as possible ; and our regard to his Majesty's Service has induced us in this one Instance to suffer, tho' nothing can induce us to approve, or for the future to advise his Majesty to permit such a Deviation from the Constitution.
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"'An Act for the Continuation of an Act of Assembly of this Province, Intitled 'a Supplementary Act to the Act Intitled 'an Act for preventing the Exportation of Bread and Flower not Mer- chantable, and for the new appointment of Officers to put the same in execution.''
""'An Act for the further Continuance of an Act of Assembly of this Province, Intitled 'a Supplementary Act to the Act Intitled ' an Act for preventing the exportation of Bread and Flower not Merchantable, and for the new appointment of Officers to put the said Law in Execution.''
"'An Act to prevent the Exportation of Bad or unmerchantable Staves, Heading, Boards, and Timber.'
" In delivering our opinion upon the Subject of these three Bills, in order to avoid giving any unnecessary Trouble to your Lord- ships, we shall beg leave to Consider them together, as their Ob- jects are nearly of the same nature, as they are lyable only to one Objection, and as that Objection is common to them all.
"The purpose, my Lords, of these Bills is to prevent the Com- mission of those Frauds which frequently have been practiced in this Province, in Three of the most material articles of their Trade, Bread, Flower, and Staves, and to take Care that they shall be ex- ported for the future, in a Merchantable Condition, Suitable to the Regulations which are therein prescribed. To these Regulations no exception has been made, as they are manifestly calculated for the publick Good, as they tend only to discourage fraud, to support the Credit of the Province, and are not detrimental to any Indi- vidual.
" The only objection which has been made to these Acts is, that the appointment of the Officers for carrying them into execution, is taken from the Proprietaries, to whom, by their Charter, it pro- perly belongs. This, my Lords, is a just and Valid Objection to almost all the Acts against which the Proprietaries Complain, and tho' in these Acts this Objection has its Weight, yet, as the privi- lege here assumed is not like the Cases we had before the Honour of stating to your Lordships, a total change of constitutional pow- ers and a Deviation from the whole course of proceedings in Eng- land, but meerly the appointment of a Ministerial Officer to put in Execution a particular and Temporary Regulation of police, we do not think the objection considerable enough to outweigh the useful Provisions of these Bills, and therefore We humbly recommend that they may be suffered to pass into Laws.
" With respect to the several other Acts referred to us by your Lordship's said order, and to which no Objection has been made, we beg leave to observe that the three following are expired, viz" : "' An Act In Addition to an Act Intitled 'an Act for regulating the Hire of Carriages to be employed in his Majesty's Service.''
"' An Act for extending several Sections of an Act of parlia- ment passed in the 32d year of the present Reign, Intitled 'an Act
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for punishing Mutiny and Disertion, and for the better payment of the Army and their Quarters.''
" ' An Act for regulating the Officers and Soldiers in the pay of this Province.'
" And that the remaining five; as far as we are capable of judg- ing, are extreamly unexceptionable, the objects of them being con- fined to the Internal Government of the Province, to more regula- tions of police, and Matters of Domestic ŒEconomy.
"They are Intitled a Supplement to the Act Intitled 'an Act for regulating the hire of Carriages to be employ'd in his Majesty's Service.'
"' A Supplement to an Act Intitled 'an Act for preventing Abuses in the Indian Trade for supplying the Indian friends and Allies of great Britain with Goods at more Easy Rates, and for se- curing and Strengthening the peace & friendship lately concluded with the Indians Inhabiting the Northren and Western frontiers of this Province.''
"' A Supplement to an Act Intitled 'an Act for granting to his Majesty a Duty of Tonnage upon Ships and Vessells, and also cer- tain Dutys upon Wine, Rum, Brandy, and other Spirits, and a Duty upon Sugar, for supporting and maintaining the Provincial Ship of War, for protecting the Trade of this Province, and other purposes for his Majesty's Service.''
"' An Act for regulating the hire of Carriages to be employed in his Majesty's Service.'
"' An Act to continue an Act Intituled 'an Act for directing the Choice of Inspectors in the Counties of Chester, Lancaster, York, Cumberland, Berks, and Northampton.''
" Having, in obedience to your Lordships' Orders, Stated our opinion upon the several Acts distinctly which have been referred to our Consideration, and having Assigned our Reasons why we think they may deserve his Majesty's disapprobation or Allowance, We beg leave, after having shewn how (seperate and independent of each other) they are repugnant to Justice in a private view, to State, by Considering them collectively and together, how fatal they would be to the Constitution in a publick one. That your Lord- ships may be satisfied how entirely the prerogatives of the Crown, which it has reserved either for its own exercise or which it has deligated to the Proprietaries, must of necessity be destroyed, if the Laws as they have been Passed should be approved by his Majesty, or the more dangerous Claims which have been set up to support them should once be admitted, for amongst all the Laws referred to us by your Lordships and objected to by the Proprietaries, there is not a Single Act not only amongst those which we have advised his Majesty to Annul, but even which we have from peculiar Circum- stances thought ourselves bound to recommend to his Majesty's Ap- probation, that does not contain either some Encroachment on the prerogative of the Proprietaries, as they are Trustees for the Crown,
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or on their property as Landholders in the Province; and in several of the Laws your Lordships will have perceived that both these purposes are united by the Land Tax act, their property is charged with the utmost partiality and Injustice, and thereby in a degree taken away. By the Act for recording Warrants & Surveys, they are deprived of all legal remedy for the re- covery of their Lands by the Establishment of a Title unreasonable and inconclusive in its self, and unknown to the Common Law ; by the Act for the relief of Devisees, their right of Escheats, which is inseperable from Sovereignty, is cut off by the supplemental Bill for Courts of Judicature, their clearest power in the appointment of Judicial Officers, though not absolutely taken away, is considerably abridged by the Substitution of paper money for Sterling, in the Re-emission act their Rents are unequitably reduced, and thereby their Express Contracts virtually annull'd; And in all the acts which relate either to the Nomination of Officers or to the Dispo- sition of the public Money, the most sacred and inviolable parts of the Executive power, are transferr'd from the Proprietaries and drawn into the Hands of a popular Assembly. To stop these en- croachments and to restrain such Irregularities, there are but two Checks of which the Constitution in its Nature admits, the one is in the hold which the Proprietaries have over their Governor, the other is in his Majesty's Prerogative of Repeal; an Abridgment of that Prerogative has been Contended for by the Assembly, the Right of the Proprietaries to instruct their Deputy they have denied, and the Justice of indemnifying him against his Principal has been sup- ported, agreeable to what we stated to your Lordships at the open- ing of our Report.
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