NAY'S.

Thomas Fitzsimous, Anthony Wayne,
Fred 1. Muhlenberg, James Moore,
Arthur St. Clair,

Thomas Hartley, John Arndt,
Richard M’Allister, David Esp.y.

The following reasons for and against the adoption of the report were entered upon the minutes.

We dissent from the report of the committee as adopted by the council, generally; because, though there are some parts of it that meet our approbation, it is in a great measure made up of matters that were never submitted to them, and totally foreign to the nature and design of their appointment. Their duty was plain and simple, "To enquire whether the constitution had been preserved inviolate, in every part, and wheththe legislative and executive branches of government, had assumed to themselves, or exercised other or greater powers than they are entitled to by the constitution.” As this is a report in part only, and confined to the legislative branch, the journals of the assembly and the laws, fell properly under their notice, as it was from them only it could be discovered whether the legislative body had departed from their du. ty, or neglected the trust reposed in them. And had the committee contented themselves with pointing out, and reprobating in the strong, est terms, the instances where these had happened, they would have met our hearty concurrence. But when we see explanations of many parts of the constitution introduced, which we think inconsistent with the liberty and safety of the people, and a labored commentary upon it, foisted into the report; it becomes a duty we owe to the people, to ourselves and to posterity, thus solemnly to protest against it in the gross, as big with mischief in itself, and forming a most dangerous precedent, If committees are at liberty to introduce into their reports, matters dif. ferent from, and foreign to those subunitted to them, public bodies may be surprised into a decissiun, on the most important subjects, unexpectedly, and unprepared for the discussion of them; or, as in the present case, into matters that do not at all belong to them. The greatest partof the report, which has taken up so much of the time of the council, being the proper and exclusive business of a convention.

This will fully appear, from the observations we have made upon the several parts which have received our negative. But in this place we cannot help observing, that by the explanations given to various parts of the constitution, the system of our government would be entirely changed, and the executive branch acquire such an increase of power and influence, as to make it easy for them to establish the most dreadful tyranny. David Espy,

Arthur St. Clair,
Thomas Hartley,

Fred. A. Muhlenberg,
Richard M'Allister, John Arndt,
Anthony Wayne, James Moore.
Thomas Fitzsimons,

For adopting the report, we think proper to assign the following reay sons, in addition to those placed upon particular parts of it, viz.

We agree to the limit thereby set to the power of the house of representatives, as to their right to judge of the qualifications of their own members, viz. That the house has no right to expel one of them, who may be charged with a crime not committed in his official characs

fer, till he be convicted thereof by his proper judges; and we also adopt the strictures made on the case of

At the same time we reject, with indignation, all idea of sheltering persons guilty of peculation and fraud. It was because the sacred rights of the citizens had been violated, through this culprit, that we mentioned him, and because we could not pass over such an enormous breach of the constitution in silence.

Because this construction of the power of the house over its members, allows of full scope to the general assembly, to determine concerning the legal and constitutional qualifications necessary, to entitle any person to sit therein; that is to say, whether the person returned by t'ie sheriff

, hath given the proper evidence of his attachment to, and iaterest in the community; in other words, whether he hath taken the test in due time, and paid taxes; whether he hath resided in the county he comes from two years before the election; whether he holds any office other than in the militia; or hath sitten in the representative body more than four years in seven, &c. This interpretation likewise admits of the sole right of the house to judge and determine, without appeal, of the merits of elections, and whether the person elected hath disabled himself for the year ensuing, by giving or promising any reward to be chosen into assembly. It is also consistent with the authority of the house, to decide concerning the behaviour of the members individually, and upon proper ground to expel any of them from his seat. But the house cannot enquire whether the persons fairly chosen by the people, be the “ men most noted” in their respective counties -- for wisdom and virtue,” as called for by the 7th section of the frame of gove err ment. This requisition is merely directory to the electors. And the member expelled is capable of being immediateig re-elected, unless he has been guilty of bribery at his former election.

On this point we harmonise with the assembly of the late province of Pennsylvania, of the year 1705, except perhaps as to the disabling of the expelled, who, by act for regulating elections, have stated the judi. cial authority of the house of representatives in the words following, viz. “ That no person shall be rejected or denied to sit, debate or act in the general assembly, who shall be willing to make and subscribe the declarations required by law; provided nevertheless, that nothing herein contained shall extend to debar or hinder the house of representatives to reject such persons as shall be unduly elected members of assembly, or such as the assembly shall see cause, from time to time, to expel ur disable to sit there, by reason of ill practice in elections or misbehavi our in the house.

We say little of the right of assembly to punish for contempts, or to restrain breaches of privilege. The house is certainly invested with power to chastise those in a summery manner, who disturb or interi'upt their proceedings. This is incident to every court of justice. We coatend however, that the authority of the assembly to judge, in the cases stated above, was not given to them for their honor or advantage, but because it could not, consistently with the public welfare, be trusted in other bands. This, we say, is by no means the case in respect to criminal charges against an assemblyman, not concerning his official character. Here the freedom and independence of the house are not affected, and the right of the citizen to trial by his peers remains entire. He should therefore, be deemed innocent, till he be convicted by his proper judges.

And inasmuch as the proceedings of the late house, dated September 9, 1783, in the case of Mr.

--, (one of the grounds. upon which we have voted for this report) may not reach our constituents, we copy them here verbatim, from the printed journals of the general assembly, in order to shew that the proceedings in his case, have been candidly abstracted in the report. " Whereas Mr.

a member of this house, for the county of —m, and late a commissioner of purchases for the same, hath been guilty of notorious frauds, and other enormous crimes, in the execution of his duty aforesaid."

“ Resolved therefore unanimously, That the said Mr. is hereby expelled this house, and that the attorney general be directed to institute actions against him for fraud and perjury.”

And whereas, upon the express and clear words of the 15th section of the frame of government, the report in substance, states that all laws and alterations of laws, should be by bill, published for the considera tion of the people, and, except in cases of sudden necessity, should not be enacted into laws till the next session of the general assembly; and that all appropriations of the lands, goods and monies of this commonwealth, by resolve, which is passed privately and immediately, are evasions of this 15th article, by which very peculiar restraints are imposed upon the power of legislating; yet a pretence hath been made for the house to proceed in this summary manner, from that part of the constitution (Sect. 20,) which, having enjoined that “ the president and council shall take care that the laws be faithfully executed,” declares that“ they are to expedite the execution of such measures as may be resolved upon by the general assembly.”

Úpon this we remark, that the words last cited are manifestly introduced, to secure to the council the execution of such measures as shall be adopted by the legislature; and in order that the general assembly shall not, by nominaiing commissioners in their acts, or otherwise appointing officers, intercept this privilege of the board; but shail leave the executive part in every case, whether it be the levying of troops, the arming of ships of war, or other business whatever, to the proper and constitutional body.

This passage relates not at all to the mode of exerting the authority of the legislature. That had been too particularly and plainly described in the 15th section of the frame of government, to be unravelled and contradicted by the words used here for a very different purpose. Candor requires us to construe one part of the constitution by another,.. so as to understand the whole as a consistent system, if it can be done with fairness and justice; but forbids us to strain contradictions from general words. If it was indeed proper to state any destinction be. tween “laws' and 'measures resolved upon by the general assembly," the first might be referred to the standing laws of the state; the latter might intend business of a local and temporary nature; to be established however, by act of assembly, passed with the usual solemnities. In short, there is no countenance given by the 20th section, to legislating by hasty resolve.

It is stated in the report, that the second exception in the 20th section of the frame of government, viz." Except such as are chosen by the general assembly, or by the people," ought to be considered as introduced there, by way of parenthesis. This interpretation, which sulves every seeming difficulty, and gives operation and consistent

sense to the whole sentence, has been reproached as adding to, or altering the constitution. But the charge is groundless. The constitution is still the same. We vote for the report, because nothing more is meant in this part of the report, than that the passage in question is to be read as if it were placed between the marks of a parenthesis; because similar interpositions of this nature occur in the frame of govern. ment, which are parentheses in sense, though they be not marked as such. Thus section 15, " Except on occasion of sudden necessity.” Section 20, wear the entrance" Five of whom shall be a quorum.” Section 24, " Besides the powers usually exercised by such court,” and section 28." Where there is not a strong presumption of fraud,” are instances of this kind. Far from being any strain on the words, this construction gives the natural sense of the passage. Lastly, we adopt the report, because the principles thereby established, tend to distinguish and sever the powers of government, and to prevent tyrannical exercises of them. The assumption of the judicial and executive, into the hands of the legislative branch, doth as certainly produce instances of bad government as any other unwarrantable accumulation of authority. It is only whilst these are distributed, and kept separate from each other, that liberty and safety can be expected.

We wish not to strip any of the branches of government, of the proper and constitutional powers belonging to it, nor to exalt any of them to the degradation of the rest; but persuaded as we are, that the transcendantauthority of binding by law, together with the other clear rights of the representative body, are quite enough to be entrusted to any set of men, however qualified, we protest against the exercise of any other by the same persons. And we are decided, that the general assembly, for above seven years past, hath greatly invaded and dangerously usurped the business and powers of the other depositaries of the devolved sovereignty of the people of Pennsylvania. George Bryan,

James Edgar,
Joseph Hart,

William Montgomery,
Samuel Smith,

John M’Dowell,
John Whitehill,

James Potter,
James N' Lene,

Baltzer Gehr,
William Finley,

Jolin Smiley.

On the 16th of July, 1784, the petition of Thomas Mifflin and nine others was presented, stating that they are members of an ancient community, corporation and body politic, with continuance for ever, by the name of The trustees of the college, academy, and charitable school of Philadelphia, in the province of Pennsylvania”; that they are entitled to certain estates, franchises, rights, &c. for the advancement of useful knowledge; that they conducted the seminary to the satisfaction of its benefactors, and to the advantage of the cominunity, and that their rights were confirmed by the 45th section of the constitution of the state. That without any misdemeanor, offence, neglect of duty, or breach of trust, proved against them as a body corporate, they were disfranchised and deprived of their trust, immunities and estates in the said corporation, by a law of this commonwealth of the 27th November, 1779. That no legislature can have authority to divest them of their franchises, nor, without their consent, to take the fruits of their labor, as the foundation upon which to establish an university. They therefore pray the council of censors to take the premises under their wise consideratfon, and do therein as justice and cquity shall direct.

In the original report, as made to the council by the committee appointed to enquire whether the constitution has been preserved inviolate in every part, &c. was contained the following paragraph, viz.

That the act passed on the 27th November, 1779, entitled 'An act to confirm the estates and interests of the college, academy and charitable school of the city of Philadelphia, and to amend and alter the charters thereof, conformably to the revolution and to the constitution and government of this commonwealth, and to erect the same into an university,' is a deviation from the constitution.

Upon the consideration of the report, the foregoing paragraph was negatived by the council of censors; and the following reasons for the voles given upon the question, were inserted upori the minutes;

Reasons of dissent from the decision of the Council. 1. Because charters granted to religious and charitable purposes, are carefully guarded by the 45th section of the frame of government, a clause introduced into the constitution, as is well known, with a particular view to the rights of this institution.

2. Because the suggestions in the act for scizing the charter of the .college, that the trustees in the year 1764 hail, by a bye law, narrowed the original broad and extensive plan of the institution, was not ouly without evidence, but against complete evidence, as has been shewn in council. We therefore consider this sugrestion but as the specious colouring to a scene of pre-determined injustice, which the actors therein could not safely trust to a court of law, whose proceedings are conducted under the check and solemnity of oaths, administered to the occasion, and thus accounting why the proper tribunals were neglected, and resort had to the less scrupulous decisions of the legislature.

3. Because the supplementary suggestion of some in the council, that a forfeiture was, at a certain time subsequent to the revolution, incurrexi, from a deficiency of qualified persons to conduct the busi. ness of the institution, is frivolous and equally unsupported. We have full evidence, that at no time whatever, was there a want of qualified trustees, or of teachers; and accordingly, in their hands, until the war was brought immediately to their door, was the institution conducted with a degree of reputation which, with all the extravagant increase of endowment, and the imposing splendor of its new name, it has not been able under other management to emulate.

4. Because the law, in our opinion, is in itself, and independent of its immediate wrong, truly exceptionable. We consider the alteration in the mode of constituting the board of trustecs, as materially for the worse. The care of education is best confined in private hands. Servants of government, and even ministers of religion, have been in all ages and

in every country the interested tools and favorers of powTo make any of these trustees ex officio, is to create a dangerous alliance between the institution and the state, by which the dogmas of a slavish obedience may come gradually to displace the pure and esalted precept of liberty, and learning itself be made instrumental lo the purposes of

of tyranny and oppression.

er.