USA > Pennsylvania > Colonial Records of Pennsylvania Volume 13 > Part 19
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SUPREME EXECUTIVE COUNCIL. 215
The Council took into consideration the appointing an Ensign for the company of Rangers under the command of Captain Thomas Robeson ; and Thomas Chambers being proposed, and the ballots being taken, Thomas Chambers was unanimously elected.
Ordered, That Thomas Chambers be appointed Ensign of the said company, and commissioned accordingly.
In Council.
PHILADELPHIA, Thursday, March 7th, 1782. PRESENT :
His Excellency the President.
The Honorable the Vice President.
· Mr. Bayard, Mr. Hayes,
Mr. Ewing, Mr. Byers, and
Mr. Van Campen, Mr. Piper,
Mr. Pentecoast.
1
An order was drawn on the Treasurer in favor of the Honorable George Bryan, Esquire, for the sum of seventy five pounds specie, in part for his services as one of the Commissioners for superin- tending the sale of city lots.
The Council resumed the consideration of the appointment of an additional attorney, to appear on the part of this State in the cause respecting the pretensions of Connecticut to lands within the bounds of Pennsylvania, now pending before Congress; and thereupon, Jonathan Dickinson Sergeant, Esquire, was appointed to the said service, &
An order was drawn on the Treasurer in favor of the said Jona- than Dickinson, Sergeant, for the sum of thirty pounds specie, as a retaining fee for his service in the said cause.
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The Council met.
1
Thursday, March 7th, 1782, 8 o'clock in the afternoon, agr bly to order of Monday last.
PREBENT :
His Excellency the President. The Honorable the Vice President.
Mr. Gardner,
Mr. Byers,
Mr. Ewing,
Mr. Hayes, and
Mr Van Campen,
Mr. Pentecoast.
Mr. Piper,
The Council resumed the consideration of the election of Phil delphia county ; & thereupon,
Mr. Vice President moved, that the first part of the sixth charge found in the affirmative, be considered apart from the last part d the said charge; and the motion being seconded by Doot'r Gardner, the question was put, and carried in the negative.
Moved, that those parts of the sixth charge which have been found in the affirmative, do tend to effect the validity of the eles- tion, namely, the first and last part, and the same being seconded,
Agreed to resume the consideration of the election on Saturday next, at 3 o'clock in the afternoon.
In Council.
'PHILADELPHIA, Friday, March 8, 1782. PRESENT :
His Excellency the President.
Mr. Gardner, Mr. Hayes,
Mr. Ewing, Mr. Byers, and
Mr. Van Campen,
Mr. Pentecoast.
Mr. Piper,
The Honorable John Beyers, Esquire, presented to the Council the following account, vizt :
Dr. The State of Pennsylvania to John Byers, Esquire :
For attendance in Council from the twenty-seventh of December, 1781, to the cighth of March, 1782, in- clusive, 78 days, @ 7s 6 per day, - £68 5
Mileage 125 miles, (a) $6, 3 26 .
£71 76
SUPREME EXECUTIVE COUNCIL. . 217
And thereupon,
An order was drawn on the Treasurer in favor of the Honorable bn Byers, for the sum of seventy-one pounds seven shillings ecie, amount of the above account.
A return of Justices for the district of Durham and Nocksmixon wnships, in the county of Bucks, was received and read, by which appears that Richard Backhouse and George M'Elroy were duly seted Justices for the said district ; thereupon,
Ordered, That Richard Backhouse, Esquire, be appointed a istice of the Peace for the county of Bucks, and commissioned cordiogly.
A return of Justices for the district contaimng the township of :nosbury, East and West Bradford, Newlin and East Fallowfield, the county of Chester, was received and read, by which it appears it Captain Joseph Luckey and Major Isaac Taylor were duly ected Justices for the said district ; thereupon,
Resolved, That Joseph Luckey and Isaac Taylor, Esquires, be pointed Justices of the Peace for the county of Chester, and com - ssioned accordingly.
The following deeds were examined and signed by his Excellency President, for divers lots in the city of Philadelphia, marked the general plan of city lots as follows, and sold agrceably to ", for the redemption of the bills of credit of this State of the enty-ninth of April, 1780, vizt :
To William Milnor, for lots No. 1491, 1492, 1493, 1494, 1495, d 1496. Consideration two hundred and eight pounds.
To Edward Laskey for lots No. 1311, 1312, 1314, and 1315. nsideration one hundred and forty-nine pounds.
To Edmund Milne, for lots No. 210, 211, 212, and 213. Con- eration five hundred and sixty-seven pounds.
To Christian Galley, for lots No. 1339, 1340, and 1341. Con- eration one hundred pounds.
To William Sbeaff, for lots numbered from 641 to 648. Con- eration two hundred and fifteen pounds.
To Jacob Shoemaker, for lot No. 1219. Consideration forty- ee pounds.
To Matthias Kecly, for lots No. 481 and 482. Consideration enty-three pound's.
To Davis . Bevan, for lots No. 1158, 1159, 1161, and 1162. nsideration two hundred and twenty-two pounds.
Which sums the above mentioned persons have paid into the ads of the Treasurer of the State, as appears by his receipts. eds dated the 8th of March, 1782.
Mr. Montgomery and Mr. Atlee attended in Council, and in- med that having applied to the Delegates in Congress from the te of Connecticutt, and requested information from them re- cting a law said to have been passed by that State for raising a iment for the defence of the western frontiers of that State, the
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said Delegates had put into their hands the said law, by which i appears that the expressions used therein are for the defera Horse-neck. or the western frontiers ; but these expressions bey equivocal, Mr. Montgomery and Mr. Atlee were directed to deavour to obtain a more explicit declaration of the destinatimd the said troops.
A petition from George Haines, on behalf of himself and li partner, praying remission of a forfeiture on goods condemned, found on board the ship Perseverance, was read, and referred in further consideration.
On motion,
Agreed, That the Judges of the Supreme Court be requested give their opinion, in writing, upon the following words of the twentieth section of the Constitution, vizt : " And shall have power to grant pardons and remit fines in all cases whatsoever, except in cases of impeachment, &c," as to the point, does the word im comprehend forfeitures ?
In Council.
PHILADELPHIA, Saturday, March 9, 1782
PRESENT :
His Excellency the President.
.
The Honorable Mr. Bayard, Mr. Hayes,
Mr. Gardner, Mr. Ewing, and
Mr. Byers,
Mr. Pentecoast.
Mr. Piper,
A derd was examined and signed by his Excellency the Prei dent, to the Wardens of the city of Philadelphia, for fourteen city lots, numbered in the general plan of city lots from 1560 to 1574, and sold agreeably to law, for the redemption of the bills of eredt of this State of the twenty-ninth day of April, 1780. Deed tho ninth instant.
Two orders were drawn on the Treasurer in favor of Colond Jacob Morgau, late Superintendant of the Commissioners of Pur chase in the several counties. One for the sum of three hundred and six pounds nine shillings and seven pence halfpenny, spocit And the other for the sum of one hundred and forty-eight pound thirteen shillings and three pence halfpenny, State money of th seventh of April, 1781, for the purpose of paying for supplies fr nished to the army, for which sums he is to account.
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An order was drawn on the Treasurer in favor of the Honorall Christopher Hayes, Esquire, for the sum of eighteen pounds fter shillings specie, for paying for the transportation of arms and
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SUPREME EXECUTIVE COUNCIL.
unition from the city to Conecocheague, for the defence of the tiers of Bedford, Washington, and Westmoreland counties.
Ordered, That Mr. Byers and Mr. Piper be requested to attend Council on Monday next, at ten o'clock in the forenoon, on busi- B8 of importance.
A return of Justices for the district containing the townships of Radon Grove, New Garden, and London Britain, in the county of Koster, was received and read, by which it appears that Samuel illar and David Mackay were duly elected Justices for the said strict : Thereupon,
Resolved, That David Mackey, Esquire, be appointed a Justice the Peace for the county of Chester, and commissioned accord- gly.
Adjourned till ten o'clock on Monday morning.
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In Council.
PHILADELPHIA, Monday, March 11, 1782.
PRESENT :
His Excellency the President.
The Honorable the Vice President.
Mr. Gardner, Mr. Hayes,
Mr. Ewing,
Mr. Byers,
Mr. Van Campen,
Mr. Pentecoast, and
Mr. Piper,
Gen'l Lacey, (now re- turned from his family.)
A letter from the Honorable the Judges of the Supreme Court this State, of the eleventh instant, inclosing an answer to the Be stated to them on the eighth instant, was read, and is as fol- ws, vizt :
SIR :- Inclosed, I have the honor to send to Council the opinion Judge Bryan and myself on the question proposed to the Judges ' an act of Council of the eighth instant. It would have been Dre agreeable to us to have had an opportunity of consulting with r brethren, but as that was not likely to happen prior to the bond of next month, and we were informed that the answer was sired as soon as was convenient, you are therefore furnished with in its present form. By the Constitution there is but one excep- in to the power of pardoning by the Council, and that is on a con- stion by impeachment, where the Council are the Judges, but this nnot be pardoned but by an act of the General Assembly. The
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very exception establishes the rule that the Council can parde i all other cases whatsoever.
I have the honor to be, with great respect, sir, your Excellent most obedient, humble servant, THOMAS M'KKAN
Philadelphia, March 11th, A. D., 1782.
Case stated by the Honorablo the Supreme Executive Co of the State of Pennsylvania, for the opinion of the Justica the Supreme Court :
By the twentieth section of the Constitution, the President the Council, five of whom shall be a quorum, among other porel may "grant pardons and remit fines in all cases whatsoever, in cases of impeachment, &c."
Question : Docs the word fines comprehend forfeitures ?
Answer : The Convention who framed the Constitution of Commonwealth of Pennsylvania had been British subjects, lived under British laws, and at the time had in contemplation th British form of Government, and imitated it as far as they os ceived it suitable to the circumstances of the people of the Stat, and therefore, made a mixed government, and divided the pomen thereof into three branches, namely : the Legislative, Executing, and Judicial, briefly circumscribing the province of each, drawing the lines of partition between them, and pointing out their prind pal powers and duties. They knew that the Executive power in Britain was vested in the King, and the power of pardoning wholly in the Executive there; and in conformity thereto, the have declared that " the Supreme Executive power should be vert in a President and Council," by the second section of the pla frame of Government, and in the twentieth section, that they grant pardons and remit fines in all cases whatsoever, &o
This being premised, we are of opinion that, though the fines does not comprehend forfeitures, (fines for offences being of money which a man is to pay for any contempt or offence apie the government, and forfeitures meaning the lands or goods when are lost by a conviction or attainder of treason, felony, de., or the breach of some law,) yet forfeitures may be remitted or rester by his Excellency the President and a quorum of the Council, virtue of the other words " grant pardons in all cases whatsoere. For the effect of a general pardon is to make the offender a man ; to acquit him of all corporal penalties and forfeitores anses to that offence for which he obtains his pardon. We say a good pardon, for the President and Council may grant an conditio pardon ; this is to extend their mercy upon what terms they ple and annex to their bounty a condition, either precedent or ral quent, to the performance whereof the validity of the pardoa depend, and this by the common law.
THOMAS M'KEAN, GEORGE BRYAN.
Philadelphia, March 9, 1782.
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SUPREME EXECUTIVE COUNCIL.
ie Council resumed the consideration of the election of a cillor for the county of Philadelphia.
oved by the Vice President, that it be
solved, That before this Board will proceed to their final de- ination of the Philadelphia county election, the opinion of the f Justice and such of the Puisne Judges as are in town, be D on such part of the charges as in the opinion of this Board supported by the evidence; and the motion being seconded by or Gardner, and some debate thereupon had, the question was : Whereupon,
ne Council were divided, there being five yeas and five nays; le motion was lost.
oved by the Honorable the Vice President,
hat the yeas and nays upon the said question be taken : Where- : the motion was unanimously agreed to.
ne yeas, and nays were as follows, vizt :
Yeas. Nays.
1. Vice President,
1. Mr. President,
2. Doctor Gardner,
2. General Ewing,
3. General Lacey,
3. Mr. Van Campen,
4. Mr. Hayes,
4. Mr. Byers,
5. Mr Piper. 5. Mr. Pentecoast.
nd so the motion was lost.
ne consideration of the election was laid over till to-morrow ling at ten o'clock.
letter from William Thompson, dated this day, respcoting a mission in Colonel Moylan's regiment, solicited by him, being and considered,
rdered, unanimously, That Mr. Thompson be informed that Council do not think it necessary at present to make any new intment in Colonel Moylan's regiment.
letter from his Excellency General Washington, dated the instant, was read ; and the same relating to an extension of ority over the militia in case of a siege,
ruered, That the same be laid before the General Assembly.
Q order was drawn on the Treasurer in favor of Griffith n, for the sum of twenty two pounds two shillings and six je, balance of his account for repairing the clock.
petition from James M'Cullough, setting forth that he hath I convicted of horse stealing upon five several indictments at a rt of General Quarter Sessions of the Peace, held at Philadel- i for the county of Philadelphia, the fifth day of March in- it, and sentenced upon each of the said indictments to be pub- I whipped, stand in the pillory one hour, have both his ears cut wod mailed to the pillory, puy the costs of prosecution, and d committed till this sentence shall be complied with, and also ay to the use of the State five several fines, to wit: one of
222 . MINUTES OF THE
thirty pounds, two of five pounds, two of twenty pounds, speci, was read, praying remission of the said corporal punishments: 1 recommendation from the Justices of the said court in favor of the petitioner, being also read & considered ; thereupon,
Resolved, That the said corporal punishments be remitted, (a cept the pilloring and whipping ordered to be inflicted on the th teenth instant, ) on condition that he enlist in the Pennsylvann in to serve during the present war without bounty ; and that be le entitled to receive the State emoluments at the end of che war, il he shall so long behave himself well.
In Council.
PHILADELPHIA, Tuesday, March 12, 1782 PRESENT :
His Excellency the President.
The Honorable the Vice President.
Mr. Gardner,
Mr. Hayes,
Mr. Ewing, Mr. Byers,
Mr. Van Campen, Mr. Levan, and
General Lacey,
Mr. Pentecoast.
Mr. Piper,
On motion,
Agreed, that the order of the day be adjourned till four o'det this afternoon.
On motion,
.
Ordered, That the matter in controversy between Samuel Lyon, Esquire, late Commissioner of Purchases for the county of Car berland, and .Major James Smith, respecting cattle, for which the said Smith claims payment from the State, be on the part of the State, referred for adjustment to referees to be appointed by Court of Common Pleas of the said county, and that the said Lydh be instructed to submit the same accordingly.
An order was drawn on the Treasurer in favor of bis Erot lency the President, for the sum of one hundred pounds specie, i, part of his salary, for which he is to account.
An order was drawn on the Treasurer in favor of the Honorult the Vice President, for the sum of fifty pounds specie, in puts his salary, for which he is to account.
Resolved, That a company of Colonel Brown's battalion drawn for the protection of the frontiers of Cumberland com for the months of April and May, and then to be relieved by- company of Colonel Purdy's battalion, for the months of June to July.
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SUPREME EXECUTIVE COUNCIL.
The Council met.
In the afternoon, 4 o'clock, March 12, 1782, agreeably to ad- ourn ment.
PRESENT : ' His Excellency the President.
The Honorable the Vice President.
Mr. Lacey, Mr. Byers,
Mr. Gardner,
Mr. Piper,
Mr. Levan,
Mr. Hayes, and
Mr. Van Campen,
Mr. Pentecoast.
Mr. Ewing,
On consideration,
Resolved, That Lawrence Earb be appointed Ensign of Captain Philip Shrawder's company of Rangers, raised for the defence of the frontiers of the county of Northampton, and commissioned ao- cordingly.
On consideration, ' .
Resolved, Thata company of Colonel Mitchell's battalion of mili- tia of the county of Cumberland, be drawn forth for the protection of the frontiers of Northumberland county, for the months of April and May, and then to be relieved by the company next in order, of the said Battalion, for the months of June and July ;
Ordered, That the said company be marched to the county of Northumberland, and to be under the direction of the Lieutenant of the said county.
On consi leration,
Ordered, That Captain Andrew Porter be promoted to be Major of the fourth regiment of Artillery, by resolution of Congress, an- Dezed to the line of Pennsylvania, vice Major Eustace, deceased ; and that Captain Isaac Craig, be promoted to be Major of the same regiment ; Major Porter's commission to bear date the next day fol- lowing the decease of Major Eustace; and Major Craig's commis- sion to bear date the day next following the date of Major Porter's Commission.
The Council resumed the consideration of the election of a coun- cillor for the county of l'hiladelphia.
Doct'r Gardner presented to the Board a protest against the de- termination of Council by which a negative is put on the motion for taking the opinion of the Chief Justice and such of the Puisne Justices of the Supreme Court as are in town, &c., on the 11th in- staat; and the protest is as follows, vizt :
Dissentient :
1. Because divers matters are set forth and inferences drawn in the specific charges touching the said election, which not being
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criminal in themselves, can only become so by the express prohibi- tion of rome municipal law or parliamentary usuge, which in such case becomes law. In a cause, therefore, of such magnitude and importance, which has drawn the attention of other States, and raised an great a ferment in this; we estcem ourselves wholly in- excusable if we should refuse or neglect to obtain every informa- tion and assistance which may enable us to decide upon law as well as facts with the utmost clearness and precision.
2. B. cause we apprehend the present determination will become a precedent in all future elections, and it is indispensably necessary after such objections have been offered and so fully considered, to estimate with legal accuracy how far they ought or ought not to invalidate an election, in order, that if the laws are sufficiently ex- plicit, they may in future be iuforced, and if they are defective, they may be supplied and amended. But to form a decision which those skilled in the laws of the land may deem illegal, will, we clearly conceive, expose this Board to deserved censure, lay a foun- dation for future disputes in elections, occasion a great waste of public time and expenditure of public money, both which have been so much regretted in the present instance.
3. Because, we cannot conceive it derogatory to the honor of the Board to suppose the members unpossessed of that legal knowledge necessary to determine the operation of law on facts so special and particular as those set forth in the specified charges on this eles tion. On the other hand we know, and appeal to legal history for proof, that public bodies the most celebrated for gravity, wisdom, and Senatorial abilities, have thought it incumbent from time to time to cousult persons of professional knowledge, whose station and character insured their impartiality, and gave weight and dig- nity to their decision.
4. Because we apprehend it to be one of the most important and interesting enquiries in a civil government, how fur any of its members shall be abridged of their rights as citizens when, for short time, they become soldiers. The law, we apprehend, should be plain, clear and explicit, to invalidate an election for the inter- ference of persons thus circumstanced, or any irregularities in the mode of conducting it, which have not had the manifest and deci- sive influence on the event. We who dissent on this occasion, an not sufficiently informed of the law in this respect, nor, highly ~ we may esteem the legal abilities of our fellow members, can we suppose they have at once become such able lawyers and distin- guisbed casuists, as to claim our confidence in preference to those who have made that science their particular study and professional duty. And while on the one hand, we would earnestly wish to pre- serve the freedom of election from undue exertion of power; ou the other, we would as carnestly preclude an idea that those de- fending their country, and on special occasions called from the da- ties of civil to military life, lose any portion of their privileges in
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SUPREME EXECUTIVE COUNCIL ..
former ; an idea which, in our opinion, would have the most I and discouraging effects upon the militia upon all future occa- s. The degree of interference, the mode of it, the irregular- of time and place in holding elections, and manuer of conduct- them, are facts, but the operation of law upon these facts 80 88 acate an election, or only subject the authors of such practices Tegularities to punishments, is quite another consideration, to ch, cho' this Board may be competent in jurisdiction, we do not we it to be in judgment, and, therefore, ought to have availed oselves of that legal assistance and advice which the constitu- expressly bolds forth in some cases, and implicitly in others, which has been the usage and practice of the Board on many her occasions, of much less difficulty and importance. JAMES POTTER, Vice Pres't, JOHN PIPER, CHRISTOPHER HAYES, JOHN LACEY, JOSEPH GARDNER.
be following dissent of the Honorable James Ewing, Dorsey tecoast, and John Van Campen, Esquires, to be entered after the ion for considering seperately the specific charges that have been ned to be supported by evidence.
We dissent :
. Because the specifie charges deemed by Council to be sup- ed by evidence do not exhibit a true and full state of the testi- y. Many of the most important facts that were admitted or atestably proved, do not appear in the specific charges as they found. No notice is taken of the general orders of the com- der of the militia. It is in clear proof that the tickets were led by the officers without the consent of the privates; that they distributed by the officers to the privates only on the morning he election, or even after that time ; that the militia in general no opportunity of consulting their friends, or such of them as 'might have chosen to consult, with regard to the propriety or ropriety of the tickets put into their hands ; that the greatest of the militia who voted at the election voted under the orders leneral Lacey. None of those facts, though incoutestible and I material, are to be found in the specific charges that are voted e supported. Are such facts to be disregarded and past over Muleuptuous silence ? Are they to have no influence on the verations and decisions of Council upon this election ? Are we ew the whole truth, or are we to sbut our eyes against the most ' and essential parts of the testimony ? The validity or inva- of the election must depend on the facts, compared with the and not on a specification of them in a set of articles. Coan- ught to determine on the merits of the election. The election be vuid, though a single charge were not supported. VOL. XUIL -- 15.
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2. Because, to consider the specific charges separately, in to determine how far cach of them to ionlita the election, is to divide, and by dividing to weaken the force of the charges, and (which is of much more consequence) of the evidens This matter comes before Council on a petition to set the eledda aside and to order a new one to be made. The final result of the proceedings of Council must be either to set it aside or to catall" it. Such previous steps ought to be taken as will lead unterty and directly to this final result. It ought to be the joint renk all the material facts, which muy be very different from the report effects of detached parts of them. The election cannot be property considered without a collected and comprehensive view of all the cumstances which could have any operation on its necessary and sentiul properties The necessary & essential properties of an eler tion in this Commonwealth are, " That it be by ballot-that it free-that it be voluntary." If any of those qualities, mucho if all of them, be wanting, the election has not the character, therefore, is not entitled to the name of a constitutional election. No election is known to the Constitution that is not posemed the foregoing essential properties. Before Council ought to cette lish this election, they ought to be sure that it is such a one mi known to the Constitution. In other words, they ought to !! that it has been free and voluntary, and by ballot. This, therefore, we conceive would be the natural and proper question to lead Cot oil to the final result of their proceedings ; for a determimtin! this question must naturally and necessarily determine the only !! maining one-whether the clention ought to be set aside or cafe lished.
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