USA > Pennsylvania > Colonial Records of Pennsylvania Volume 13 > Part 20
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3. Because we conceive the method adopted by this resolution cludes the Council from giving a clear and unambiguous rote the merits of the election. We are fully satisfied in our judged that the facts proved before us render the election unconstitution" and void. They show in our opinion, that it was neither volat nor free; it was not voluntary, because the orders were thu officers might grant the soldiery permission to return home after they had severally voted, aud not before, and the greatest por them voted under those orders. They were evidently under restre We think the restraint was illegal. and if it was so, it was du · of imprisonment, for the confinement of the person in anywish an imprisonment, and the law so much discourages unlawful finement, that if a man is under duress of imprisonment, what means a compulsion by an illegal restraint of liberty notil be a bond, or the like, he may allege the duress and avoid the ext ed bond.
Theelection was not free. When we speak of a free election, wish to apply a constitutional and legal sense to the epithe, mean to comprehend under it, not only a freedom from foret, also a feedom from any undue influence whatever. Eren del quest of a man in power, tho' made in the most humble
SUPREME EXECUTIVE COUNCIL. 227
ays imply a threat, if denied ; a promise, if complied with. naturally have great influence upon elections. Let those applied to the circumstances proved to have attended the , the writing and the distribution of the tickets; let them plied to the manner of giving in the tickets ; and we ap- that it will undeniably appear from them that the election 'rce.
h essential importance is the freedom of elections in every rument, that a positive regulation calculated for protecting ing it, becomes of indispensable obligation ; such is the 1 in the Constitution for voting by ballot. The true reason s we conceive, to secure elections from undue influence. It d that the elector shall vote by bullot, that he may have r of concealing, if he choses to conceal, from all the world, the persons for whom he votes, but those also for whom he vote. But the militia, as it appears from the testimony, bad in their power. The tickets thus provided and dis- by the officers or by their orders, were of one kind, called tickets. A militia man bad no opportunity of altering the it into his hand, but in the presence of his fellow soldiers, ably of his officers too. By taking the pen or paper into bis was obliged to disclose that he meant cither to alter or ject the ticket, silently at least, recommended to him by superiority. Consequently to disclose, either in whole or in whom he did not vote. This shews that this election can- rding to the truc reason and spirit of the regulation, be election by ballot, But it shows more. It shows what do- reedum was meant when it was said in the Constitution lections shall be free." It was a degree of freedom which or could not enjoy without having it in his power to con- rote, both with respect to the persons inserted and those ted in his ticket. Thus, we think, it is proved unanswera- the election was not free in the sense and degree intended onstitution.
are our sentiments concerning this election, but we can- stently with the mode prescribed in this resolution, com- I express them in a vote, for though they are founded on our opinion incontestibly proved, yet those facts are not ended in any one of the specific charges which Council ered to be considered separately, in order to determine the i of each. We, therefore, consider ourselves as precluded all and fair vote on the merits of this election. For those only, and no other, we must in justice to our consciences, liberty of declining to vote on the question as it stands; efore, we will retire.
JAMES EWING, DORSEY PENTECOAST, JOHN VAN CAMPEN & . JOHN BYERS.
MINUTES OF THE
Moved by Doctor Gardner.
WHEREAS, Several members of this Board, wishing to sval themselves of every legal and Constitutional means, to assist their judgments upon such law points as have arisen out of those specific charges which have been deemed to be supported by evidence ro- specting the late election of a Councillor for the county of Phil- delphia, bave obtained an opinion under the hand of the Honorable the Chief Justice and the Honorable George Bryan, Esquire, om of the Puisno Judges upon the said points; therefore,
Moved, That the opinion of the Judges upon such of the specif charges as have been deemed to be supported by evidence, bo co. · tered on the minutes; and the same being secouded,
The question was put, and the same was carried in the afirms- tive.
The yeas and nays upon the foregoing vote being called for, are as follows, vizt :
Yeas.
Nays.
1. Mr. Vice President,
1. Mr. President,
2. Doctor Gardner,
2. General Ewing.
3. General Lacey,
8. Mr. Byers.
4. Mr. Levan,
4. Mr. Van Campen,
5. Mr. Peutecoust.
6. Mr. Piper.
The charges deemed to be supported by evidence, are as follows, vist :
6th. First part, viz: "That upon the 8th day of October & part . of the militia marched under the command of Colonel Bitting for Wentz's tavern, and the remainder of them under Col'l M'Veaugh, for Germantown, at which places the said elections were beld ; am before their arrival there the said tickets were delivered them the said Colonels and by their orders."
Last part, viz : " Or of acting and judging like freemen, sight they ought to have done."
12. " That when Phineas Roberts, who had two sons and a mon- in-law in the militia who had been ordered into Jersey upon day, attempted to speak to them in the ranks relative to their welfare, at the request of their wives and families, he was reprimanded by Major Huona, and another officer whose name is unknown, for doing, and was told he had no business to speak to the men, or to attempt biassing their minds."
. 14. "That James Fulton, an Inspector at Germantown, after receiving two tickets and the Electors had retired, opened, reed, and tore them to pieces.
16. " 'That Major Bethel, Captain Ashmead, and Captain Niet, acted as Inspector»."
-
.
5. Mr. Hayes, and
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SUPREME EXECUTIVE COUNCIL
7. " That a large bundle of tickets was delivered by Captain let, an Inspector at Germantown, out of his box to Mr. Engle 'I nut, which he did, though he was not an Inspector."
3. " "The election was opened after two o'clock in the afternoon." 9. " 'That at Wentz's many of the Inspectors did not stay till tickets were counted ; and that Andrew Knox, E-quire, who d in the double capacity of Deputy of the Sheriff and as a Judge be election, also acted as Inspector, without really being sucb, vered the tickets out of a box for a time, and called out the es, and then desired Jacob Linld, who was not an Inspector or er onth, to do it for him, which he did. That Mr. Linld said he tickets appeared to be all camp-tickets, he might as well p them ; and did 80, without calling out the names, to the amount parts of seventy."
L. . Jieob Ashton, an Inspector, received a ticket from Joseph . iny. an apprentice."
2. " That at the election at Wentz's, Colonel Bitting repri- ded a man for altering his ticket and tore it."
be opinion of the Judges of the Supreme Court on the forego- eburges, vizt :
Answers to the questions proposed :
The officers of the militia violated no law by barely marching private men under military command to the places of election in the county of which they were inhabitants, and they, or any r persona, had an undoubted right to furnish them with ticketa, to advise them to vote accordingly. The latter part of this Ition appears to be incomplete ; however, if the meaning is that private men in the militia were prevented from "acting and [ing like freemen," the following questions will occur : How y were thus prevented ? By whom were they prevented ? In t manner were they prevented ? Were they restrained from ag or compelled to vote through violence or fear ? Without e are answered, no opinion can be given to this part of the pro- d question.
. This charge depends upon the nature and effect of Major IDa's and the other officer's reprimand. This is not stated. If neas Roberts, notwithstanding this reprimand, did speak to his 4, no injury was received. The consequence of the reprimand be material part; but this does not appear. Upon this state of question we can perceive no ground for logal punishment, much for making the election void.
: As Major Bethel and the two Captains were employed only opositing the tickets in the box after they had passed through hands of the Inspectors and were read by them, there is no on for judicial censure, nor the least foundation for vacating the tion on this account. The act of Assembly passed in 1705, sts that the election shall be conducted in the presence of the
230
MINUTES OF THE
Sheriff, Judges and Inspectors, not that they shall personally per- form overy immaterial little act relating to it.
4. We upprebend that Mr. Engle, as a Judge of the election, was in the discharge of his duty, and not an intruder upon the province of the Inspectors, in reading or calling out tickets when' casting up the polls. By the act of Assembly pussed February the 8th, 1766, he had a concurrent power with the Sheriff and Iuspes- tors to roud, count, and cast up the votes.
5. It does not seem to be a sufficient ground to set the election aside because it was not opened till after two o'clock. The act di- roets that the election shall begin before that hour, but does not make this act of so much consequence as that the election should be void in case it was begun after that hour. If this had been the intention of the Legislature. they certainly would have made it so by express words; but it is ouly directory, and mentions that a the most convenient. However, an officer may be punishable for a neglect of duty. The people are not to be deprived of Representa- tives on account of this omission.
6. As there appears to be no fraud nor injury in this transaction, (though it was not conformable to the directions of the act of At- sembly,) we do not conceive it a sufficient reason for vacating the election.
.7. The election ought not to be declared void because some of the Inspectors left their stations before the election was ended. They indeed were offenders, and may be punished for not perform- ing their duty, unless they quit their stations through indisposition or some other good cause.
If elections were to be set aside for irregularities which do not affect, obviously and materially, the truth of the poll, the craft of the Judges or Inspectors might lead them to contrive such deper- ture from duty, or to commit some irregularity, in order to over- turn an election, in case they should dislike the event of it. The rights of the people do not depend upon so precarious a founda- tien.
8. This question is not stated with sufficient precision. It does not appear whether the Inspectors knew the apprentice to be such, or whether he was under age. Deceptions respecting unqualified persons often happen, but it would be very wrong to set aside ad election for a whole county, upon proof of a single instance of this kind, especially if the sitting member has more than a bare ins- jority. The utmost that ought to be done in this case, would be to subtract the vote from the sitting member.
9. Though Colonel Bitting reprimanded a man for altering bis ticket, and tore it to pieces at the place of election, yet this is not a good reason for vacating the election. For aught that appears, the man may have procured another ticket and delivered it to the proper Inspector. It might not have been a ticket for a Council- for. Be this as it may, it does not appear to us a sufficient ground
.
281.00
SUPREME EXECUTIVE COUNCIL.
solaring an election void, because one elector reprimanded er for altering a ticket which he had received from him, or se ho re-took the ticket he had before furnished and tore it. should be determined otherwise, it would be in the power of nan to set aside any election, because any man may reprimand er in this way, and proceed to tear a ticket did he not ap-
on the whole, fraud, force, or undue influence, may in some ices be sufficient reasons for declaring an election void, but regularity, excepting such an one as would render it uncertain jer the candidate returned had a majority of the free votes alified electors, (that being the substantial point,) ought in pinion, to affect the rights of the representative or repre- d, especially where they had no share in it ; but in such case, erson committing the offence should be duly punished, accor- to the nature of it. The true distinctiou is between the e and private wrong, the generality and particulurity of the
TLADELPHIIA, Murch 12, 1782. S
THOMAS M'KEAN, GEORGE BRYAN.
wed, 'That the Board do now proceed to consider separately of the specific charges as have been deemed to be supported idence, in order to determine how far each of them ought or I not to invalidate the election of a Councillor for the county iladelphia ; and the motion being seconded,
e question was put and carried in the affirmative.
ee the dissent of Messrs. Ewing, Pentecoast and Van Cam- sutea. 3, pa. 96, &c. ]
e first part of the sixth charge being read,
le question was put, docs this part of the said election ? and ed in the negative.
treupon, Mr. Ewing and Mr. Byers declared they would not upon any question relating to the election, upon the ground determined, and accordingly they withdrew immediately.
r. Pentecoast and Mr. Vau Campen likewise retired.
e third part of the said sixth charge. being read and consi- 1,
je question was put, does this part of the sixth charge tend ivalidate the election ? and carried in the negative.
le twelfth charge being read and considered,
le question was put, does this charge tend to invalidate the ion ? and carried in the negative unanimously.
le sixteenth charge was read, and
le question being put, does this charge tend to invalidate the ion ! was carried in the negative.
282
MINUTES OF THE
The seventeenth charge was read, and the question being 4 does this charge tend to invalidate the election ? was carried in the negative unanimously.
The eighteenth charge being read, and the resolution of. Com- cil that the election was opened after two o'clock, the question wu put, does the opening of the election after two o'clock tend to invalidate the election ? was carried in the negative.
The nineteenth charge was read, and the part declared by Com- cil to be well-founded considered, and the question being pat does this part so declared to be well-founded tend to invalidate the' election ? was carried in the negative.
The twenty-first charge being read, and so much thereof as the Council have declared to be well-founded.considered, the question was put, does this charge tend to invalidate the election? and carried in the affirmative unanimously.
The twenty-second charge was read, and so much thereof as the Council have declared to be well founded considered, the question . was put, does this tend to invalidate the election ? and carried in the negative.
The prayer of the petitioners against the election of a Councillor for the county of Philadelphia, was read, and the Council having investigated and considered the charges alleged in support of their petition,
The question was put, shall the election of a Councillor fer the county of Philadelphia be set aside, and a new election er- dered ? and carried in the negative.
In Council.
PHILADELPHIA, Wednesday, March 13, 1782.
PRESENT !
His Excellency the President.
The Honorable the Vice President.
Mr. Gardner,
Mr. Piper,
Mr. Hayes, and
Mr. Bayard,
Mr. Van Campen,
Mr. Pentecost.
An order was drawn on the Treasurer in favor of Captain Joseph Stiles, Commissary of Military Stores, for the sum of four in- dred pounds specie, for purchasing ammunition, &o., for the ds- fence of the frontiers of this State.
An order was drawn in favor of the said Commissary, for sum of fifty pounds specie, in part of his pay as Commissary, which he is to account.
SUPREME EXECUTIVE COUNCIL.
The Honorable John Piper, Esquire, presented the following so- sount for his attendance in Council, vizt :
.
From the twenty-second day of December, 1781, to the fifteenth of March instant, 85 days, @ 17s 6 per day, £74 7 6
Mileage 190 miles @
4 15
£79.5 6
And thereupon,
An order was drawn on the Treasurer in favor of the Honora- ble John Piper, Esquire, for the sum of seventy-nine pounds five billings and six pence specie, amount of the abore account.
·
A petition from Philip Frick, William Hoofman and Andrew Hibson, convicted of retailing spirituous liquors at a court of Gene- al Quarter Sessions held for the county of Northumberland, with- vat a licence so to do, was read, and the same was rejected.
-
In Council.
PHILADELPHIA, Thursday, March 14, 1782.
PRESENT :
His Excellency the President.
The Honorable the Vice President.
Mr. Gardner,
Mr. Bayard,
Mr. Van Campen, Mr. Piper,
Mr. Ewing,
Mr. Hayes, and
Mr. Pentecost.
The Board having re-considered the resolution of the twelfth in- itant, with respect to the promotions of Captains Andrew Porter stad Isaac Craig to the rank of Majors in' the fourth regiment of Artillery, by resolution of Congress, annexed to the line of Penn- ty Imania, bavo
Ordered, 'That Captain Porter's commission as Major in the said giment, shall bear date as of the nineteenth of April, 1781, and hat Captain Craig's commission as Major in the said regiment, on the next day after the death of Major Eustace, anything in the måd erder notwithstanding.
1
284 MINUTES OF THE
The Honorable James Craig, Esquire, presented to the Board the following account, viz :
For attendance in Council from the twenty-third to the twenty-fourth of November, 1781, = 25s per day, £ 2 100
From the twenty-second of January to the sixteenth of March, 1782, inclusive, 53 days, a 178 6, - 46 76 Mileage 79 miles, coming to Philadelphia and return- ing, a $6, 3 19 -
£52 16 6
And thereupon,
An order was drawn on the Treasurer in favor of the Honorable James Ewing, Esquire, for the sum of fifty-two pounds sixteen shillings and six pence, specie, amount of the said account. The Honorable Christopher Hayes, . Esquire, presented to the Board the following account, vizt :
For attendance in Council from the twentieth of De- cember, 1781, to the fourteenth day of March, 1782, 84 days a 17s 6,
£78 10 0
Mileage 310 a 86,
7 15 9
£81 50
And thereupon,
An order was drawn on the Treasurer in favor of the Honorable Christopher Hayes, Esquire, for the sum of eighty-one pounds five shillings, amount of the above account.
In Council. PHILADELPHIA, Friday, March 15th, 1782.
PRESENT :
His Excellency the .President.
The Honorable the Vice President.
Mr. Bayard, Mr. Hayes,
Mr. Gardner, Mr. Ewing,
Mr. Van Campen,
Mr. Levan, and
Mr. Piper,
Mr. Pentecost.
Mr. Delaney, Mr. James McLane, Mr. Duncan, and Mr. Wya- koop, a Committee of the Honorable House of Assembly, attended
SUPREME EXECUTIVE COUNCIL. 225:
reeably to request of the Council, and a free conference was d respecting the defence of the frontiers.
A deed was examined and signed by his . Excellency the Presi- nt, to James Byrnes, for city lots number from 1642 to 1684. insideration seven hundred and sixty nine pounds. Sold for re- mption of money of the twenty-ninth of April, 1780. Deed ted the twelfth of March, 1782.
In Council.
PHILADELPHIA, Saturday, March 16, 1782. PRESENT :
His Excellency the President.
The Honorable the Vice President.
Mr. Gardner, Mr. Piper,
Mr. Bayard,
Mr. Hayes, and
Mr. Ewing, Mr. Van Campen,
Mr. Pentecost.
An order was drawn on the Treasurer on favor of Daniel Wim- eldorf, for forty pounds eighteen shillings specie, for forty-two am of paper, for printing the laws of the State.
In Council.
PHILADELPHIA, Monday, March 18, 1782. PRESENT :
His Excellency the President.
The Honorable the Vice President.
Mr. Bayard, Mr. Van Campen, and
Mr. Gardner, Mr. Pentecost.
Mr. Levan,
The Honorable Dorset Pentecost, Esquire, presented to the Board ve following account, vizt :
Dr. The State of Pennsylvania in account with Dorsey Pente- , Esquire.
Ir attendance in Council from the twentieth of De- comber, 1781, to the twenty-third day of March, 1788, 94 days @ 17a. 6 - 882 5
€
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MINUTES OF THE
And thereupon,
An order was drawn on the Treasurer in favor of the Honorable Dorsey Pentecost, Esquire, for the sum of eighty-two pounds fre shillings specie, amount of the said account.
On consideration,
Resolved, That Joseph Reed, Esquire, be appointed Counsel to assist the Attorney General in the cause now depending in the county of Berks respecting the Big Spring tract, late the estate of Andrew Allen, an attainted traitor ; and thereupon,
An order was drawn on the 'Treasurer in favor of the said Joseph Reed, Esquire, for the sum of thirty pounds specie, as a retaining fee.
A petition from the officers of the sixth battalion of the militis of the county of Berks, praying that the Lieutenant of the mid county may be directed to discharge the arrearages of pay due to che said buttalion, was read ; and thereupon,
Ordered, That a copy thereof be transmitted to the Lientemest of the said county, and that he be reminded of his duty to pay the militia out of the militia fiues.
The following deeds were examined and signed by his Excellency the President, vizt :
To Joun Mease for city lots No. 379, 380 and 381, marked in the general plan of city lots, and sold agreeably to law, for the redemption of the bills of credit of this State of the twenty-ninth of April, 1780. Consideration one hundred and eighteen pounds.
To Ebenezer Carson, for a tract of land situate in the township of Tinicum, in the county of Bucks, containing one hundred and two acres and one hundred and ten perches : Seized and cold agreeably to law, as part of the estate late of John Reid, an attainted traitor, to the said Ebenczer Carson, for the sum of one hundred and forty-one pounds three shillings in depreciation cer- tificates, which sum he hath paid to the Agents of Confiscated Estates in the said county. Deeds dated the sixteenth day of March, 1782.
SUPREME EXECUTIVE GOUNOIL.
In Council.
PHILADELPHIA, Tuesday, March 19, 1782. PRESENT :
His Excellency the President.
The Honorable the Vice President.
· Mr. Bayard,
Mr. Gardner,
Mr. Van Campen,
Mr. Pentecost, and
Mr. Levan.
The Honorable Henry Wynkoop, Esquire, presented to the sard the following account, vizt :
Dr. The State of Pennsylvania in account with Henry Wynkoop, Iquire.
attendance in Congress from December 18th, 1780, to April 7, 1781, inclusive, 111 days @ 30s. £166 10 0 tto from Nov. 27, 1781, till the 19th January, 1782, inclusive, 54 days, @ 30s. - 81
ileage on the last year's appointment, going and re- taruing, 45 miles, @ Is. 2 2
tto on the present appointment, do. @ 86 -
1 26
8250 17 6
Contra. Cr.
81, Mn'y 6. By cash received from
Mr. Rittenhouse per order of Council, 250 - 50
arch 27. By ditto
100
'Ballance
- 8150 17 6
And thereupon,
Au order was drawn on the Treasurer in favor of the Honorable enry Wynkoup, Esquire, for the sum of one hundred and fifty unds seventeen shillings and six pence, ballance of the above sount.
An order was drawn on the Treasurer in favor of Henry Osborne, qaire, for the sum of thirty eight pounds ten shillings specie, mount of his account for thirty five days service as Clerk to the immittce of Council for hearing the evidence respecting Phila- Iphis elcotia.
E30 126
.
233 12 6
RELIGIEFEEL THELastday, March 20, 178
BY Exeleney the Print
Mr. LIST.
Mr Vaz Camper. nl Mr. Pentecost.
:isse to the copsikend t:
"T. with respect to theni"
Micos Babe! bray
to the public tures Tior
Ordered. That the forme: pecisico be transmitted to the lin tenant of the cutray c: \ :: Limpios : and that the latter trabemitted to the Commissioners of the Taxes of the mid omatji and cha: the raid Lieutenant and Commissioners be reqoch! mynt thereon as soon as may be.
A recarn of a tract of land situate in Mildleton towns pi monty of Backs, containing one hundred and twenty-five sod three quarters and thirteen perches, late the estate of Joy Paswan, forfeited to the use of the State, was presented with How's, signed by George Wall, Jun'r, Agent for Porteited Bed in the mid county; and the same being read and considered,
Resolved, That Timothy Taylor, Esquire, and Captan Auf ting Willett, be appointed to view the said tract of land, with the buildings and improvements thereon, and make a return of to
1
SUPREME EXECUTIVE COUNCIL.
lue thereof to this Board, according to the best of their skill d judgment, in order that the same may be assigned to the use the University.
In Council.
PHILADELPHIA, Thursday, March 21, 1782. PRESENT :
se Honorable Mr. Bayard,
Mr. Gardner, General Lacey,
Mr. Van Campen,
Mr. Levan, and
Mr. Pentecost.
In Council.
PHILADELPHIA, Friday, March 22, 1782. PRESENT :
His Excellency the President.
The Honorable the Vice President.
Mr. Bayard,
Mr. Gardner,
Mr. Lacey,
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