USA > Pennsylvania > Colonial records of Pennsylvania, Vol. V > Part 50
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" Sir, Your Honour's most obedient humble Servant,
"G. CLINTON.
" The Honoble. JAMES HAMILTON, Esq."
A Letter from Mr. Croghan to the Governor of Pennsylvania. " LOGSTOWN on Ohio, December the 16th, 1750.
"Sir :
" Yesterday Mr. Montour and I got to this Town, where we found
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thirty Warriors of the Six Nations going to War against the Ca- tawba Indians; they told us that they saw John Cœur about one hundred and fifty miles up this River at an Indian Town, where he intends to build a Fort if he can get Liberty from the Ohio In- dians ; he has five canoes loaded with Goods, and is very generous in making Presents to all the Chiefs of the Indians that he meets with ; he has sent two Messages to this Town desiring the Indians here to go and meet him and clear the Road for him to come down the River, but they have had so little Regard to his Mess- age that they have not thought it worth while to send him an answer as yet. We have seen but very few of the Chiefs of the Indians they being all out a hunting, but those we have seen are of opinion that their Brothers the English ought to have a Fort on this River to secure the Trade, for they think it will be dangerous for the Traders to travel the Roads for fear of being surprised by some of the French and French In- dians, as they expect nothing else but a War with the French next Spring. At a Town about three hundred miles down this River, where the Chief of the Shawonese live, a Party of French and French Indians surprised some of the Shawonese and killed a man and took a woman and two children Prisoners; the Shaw- onese pursued them and took five French Men and some In- dians Prisoners ; the Twightwees likewise have sent word to the French that if they can find any of their People, either French or French Indians, on their hunting Ground, that they will make them Prisoners, so I expect nothing else but a War this Spring; the Twightwees want to settle themselves some where up this River in order to be nearer their Brothers the English, for they are deter- mined never to hold a Treaty of Peace with the French. Mr. Mon- tour and I intend as soon as we can get the Chiefs of the Six Na- tions that are Settled here together, to sollicit them to appoint a Piece of Ground up this, River to seat the Twightwees on and kindle a Fire for them, and if possible to remove the Shawonese up the River, which we think will be securing those Nations more steady to the English Interest. I hope the Present of Goods that is pre- paring for those Indians will be at this Town some time in March next, for the Indians, as they are now acquainted that there is a Present coming, will be impatient to receive it, as they intend to meet the French next Spring between this and Fort De Troit, for they are certain the French intend an Expedition against them next Spring from Fort De Troit. I hear the Owendaets are as steady and well attached to the English Interest as ever they were, so that I believe the French will make but a poor hand of those Indians. Mr. Montour takes a great deal of Pains to promote the English Interest amongst those Indians, and has a great sway amongst all those Nations; if your Honour has any Instructions to send to Mr. Montour, Mr. Trent will forward it to me. I will see it delivered VOL. V .- 32.
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to the Indians in the best manner, that your Honour's Commands may have their full Force with the Indians.
"I am, with due respects, " Your Honour's most humble Servant,
"GEO. CROGHAN.
" The Honoble. JAMES HAMILTON, Esq"."
A Message from the Governor to the Assembly.
" Gentlemen :
"I received by the last Post the Letter herewith laid before you from his Excellency the Governor of New York ; and as it contains matters of very great Importance to the Inhabitants of all his Majestie's Colonies on this Continent, and to none more than those of this Province, I must desire you to take the Contents thereof into your most serious Consideration.
"I am pleased to find by a letter from Mr. Croghan of the six- teenth of November, from Ohio, which came to my hand two days ago, that all our Indian Allies in those Parts as yet remain true to their Engagements with Us, and that some of them are desirous of removing nearer to their Brethren the English, with a view, no doubt, of receiving Protection from them against the French, with whom they expect to be at War in the Spring; but as that Letter contains several Matters worthy your greatest Attention, I choose to lay the whole of it before you without any comments of my own, which I am perswaded would be unnecessary at this time.
"The Money voted at your last Sessions as a Present to the In- dians at Ohio has been laid out to the best Advantage in Goods proper to the occasion; Great Part of them has been some time since transported over Sasquehannah and there securely lodged in order to their being carried more early in the Spring to the People for whom they are designed; the Remainder is yet in Town for want of Carriages to transport them thither, but shall be sent up as soon as the Roads will permit. But as all the Money given for this Service was invested in Goods, and no Provision made that I know of to pay the Charge of their Conveyance to Ohio, I must desire you to think of this and provide accordingly. The sum de- manded for their Transportation is Two Hundred and Fifty Pounds, which appears to me to be very high; but by all the Enquiry I have been able to make, I do not find I can get it done for less by any Persons in whom I can place a Confidence.
"I have nothing to add, but to assure you that whatever you enable me to do at this difficult Season shall be perform'd to the
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best of my Judgment, with a strict regard to the Interest of the Province.
" JAMES HAMILTON. " January 19, 1750."
The following Paper enclosed by the Proprietaries in a letter to the Governor, containing the Reasons why the Bill Entitled " An Act for imposing a Duty on Persons convicted of heinous Crimes, and to prevent poor and impotent Persons being imported into this Province," was not presented to his Majesty in Council, was read and ordered to be laid before the Assembly :
" Memorial for the Honourable THOMAS PENN, Esqr., relating to Pensilva. Acts, imposing Dutys on Persons convicted of heinous Crimes, and imported into Pensilva. as Servants or otherwise.
"1. Anno. 1722. The first act of that sort was past.
" 2. May, 1729. A Second Act was passed for laying a Duty on Foreigners & Irish Servants, &c., imported into the Province.
"3. Feb., 1729. A Third Act, more compleat itself, was past, & that Act repealed both the former.
"4. Sept., 1738. A Fourth Supplementary Act was past, only appointing a new Collector of the Duty in Place of Charles Read, dece'd.
" Feb., 1742. A Fifth act was past imposing a Duty on Persons convicted of heinous Crimes brot into the Province and not war- ranted by the Laws of Great Britain, & to prevent poor and impo- tent P'sons being imported into the same. And the Act (had it been approved) did in Terms repeal all the four former Acts. But on 5th Dec"., 1746, the Lords of Trade reported ag't the Allow- ance of it for the Reasons contained in their Report (Copy of which Report was sent over then to Pensilva); and the King soon after- w'ds disallowed that Act of 1742. The fourth Act was regularly laid before the King himself in his Privy Council, and was never disallowed, nor can now be disallowed by the Crown agreeable to the Charter.
" The third, second, & first Acts duly laid before the Board of Trade (in the manner as other American Acts at those times were), and were actually considered by the Board of Trade, and yet were never reported against or disallowed.
" From whence it may be said that they are become subsisting Acts, and not repealable by the Crown.
" And if that be true the third act is now in full Force, and that third Act repeals the first and second Acts.
" Augt, 1749. Accordingly that 3d Act (of Feb., 1729) being in Force, the Assembly of Pensilva have by a Sixth Act of August,
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1749, appointed a new officer to collect the Duty imposed by that third Act in the Place of Chas Read, dece'd.
" This Act of Augt-, 1749, recites, that the Circumstances of the Province since repealing the Act of 1742, require that the Act of Feb., 1729, shod be put in Execu", until one better adapted to the Circumstances of the Province Sho'd be provided.
This Act of Aug., 1749, has not been laid before the King in Co". (along with the other Acts which were past in the same Ses- sions) for the following Reasons, viz. :
" When the Lords of Trade in Dec"- 1746, reported for the Dis- allowance of the Fifth Act past in 1742, which then lay before them upon his Majestie's Reference, they, most unexpectedly, did also report for the Disallowance of the three old acts of 1722 & of May, 1729, & Feb., 1729. Their Reason for reporting agt. those old acts was that they were in Substance the same or like to the Act of 1742, and they thot those Acts, old as they were, were equally liable to the Crown's approbation or Disapprobation, because they had been laid only before the Board of Trade and not before the Privy Council. This was an extraordinary Attempt of the Board of Trade upon a Point which had never been decided nor ever made before. And if that Point was to be confirmed, & that thereupon an Act of the Year 1722 might be disallowed in the year 1746, after a Space of 24 years, there was no saying how far the Crown might go back, & the Crown might possibly under the like Pretence proceed now to disallow any the very oldest Laws or Constitutions of the Province.
" Which was a matter of infinite Importance.
" Wherefore the Proprietors immediately petitioned the King not to confirm so much of the Board of Trade's Report as advised the Repeal of the s'd old acts, but to have an opportunity to be heard ag't that Part of the Report.
" And by such Petition the Proprietors stopped any immediate Repeal going from hence of those old acts of 1722 & of May, 1729, & Feb., 1729.
" If the Practice of laying American Acts (heretofore) before the Board of Trade instead of laying them before the Privy Council, shou'd come to an Examination & shou'd be finally determined to have been wrong, the consequences are very dreadful; for perhaps all the Acts so laid are null & void for not having been laid within five years before the Privy Council ; but at least it may lett in the Crown to consider them and to repeal them (if the Crown thinks fit) at any age or Distance of Time whatever.
"Therefore it was thought by much the most prudent way to de- lay the Affair & not to come to a Decision of such a mischievous Question ; & therefore the Reference of the Proprietors sª Petition was kept back & with some difficulty prevented from being heard.
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But that Delay of the same was obtained on Intimations being given to the Board of Trade that the Assembly of Pensilvania (in order to make the Decision of that Question here wholly unnecessary) would pass a new Act, clear of the then present Objections, and therein would themselves repeal all the four unrepealed Acts of 1722, of May, 1729, of Feb., 1729, & of Sept"., 1738. This it was imagined might be easily undertaken, for because in the Act of 1742 the Assembly had (once already ) actually repealed all those four former Acts, but such their Repeal was it self repealed here so as to become of no Force.
"But now, after waiting three years for a new Act, to be like to that of 1742 in all Things save what the Board of Trade objected to in that Act, & to contain a Repeal again of the four old Acts, The Assembly have proceeded upon the Foot of one of those old Acts, viz., that of Feb., 1729 (tho' by their present Act of 1749 they acknowledge in Effect that that is not a proper Act) and they appoint a new P'son to collect the Dutys imposed by the Act of Feb., 1729, in the Place of Mr. Chas Read, decd.
" Should this Act, therefore, of August, 1749, be presented now for Approbation, it will certainly and unnecessarily revive the dan- gerous Question made us aforesaid in December, 1746; and the Board of Trade may also conceive that there has not been so much Candour shewn on this Occasion as has always wont to be shewn on others, seeing they were induced to expect as well from what the Assembly themselves did once in 1742, as from what the Proprietors in 1746 said might be again expected from the Assembly ; that the Assembly themselves would have repealed and put out of the way all the four old Acts of 1722, & of May & Feb., 1729, & of 1738.
" Which it is most certain the Assembly have not done, But which it's hoped the Assembly will do, as also will re-enact the Purport of their Bill of 1742 (only amended in the objectable Parts) before this Act of August, 1749, need to be presented ; and then indeed it will be no great Matter what comes of this present Bill of August, 1749, as the Purport of this part'lar Bill may be included in such a general Bill to be passed. The Province of Pen- silvania and its Assembly have always acted so becoming a Part towards the Crown & its several Boards & offices, & have thereby gained such good Regard and Esteem, as to stand in a very fair Light here; And it is wished that it may be never put in the Power of any P'son to think that they have acted so as to forfeit that Re- gard & Esteem, which has often been & may be again of great Use & Service to the Province in many of their Affairs."
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At a Council held at Philadelphia, Monday the 28th of January, 1750.
PRESENT :
The Honourable JAMES HAMILTON, Esqr., Lieutenant Gov- ernor.
Thomas Lawrence,
Samuel Hassell,
Benjamin Shoemaker,
Robert Strettell,
Joseph Turner,
Thomas Hopkinson,
Esquires.
Richard Peters,
The Minutes of the preceding Council were read and approv'd.
Three Bills were presented to the Governor by the Assembly for his concurrence ; The First Entitled " An Act for Explaining and corroborating the Boundary Line between the Counties of York and Cumberland in the Province of Pennsylvania," was read three times and agreed to with this single Exception, that the word corroborat- ing in the Title should be altered into the word ascertaining, and the Secretary was ordered to return it to the House with this amendment.
The other Bills, viz. : One Entitled " An Act for amending of the Law relating to the Probate of Wills within this Province," and the other Entitled "An Act for the better regulating the nightly watch within the City of Philadelphia and for enlightening the Streets, Lanes, and Alleys, of the said City, and for raising of Money on the Inhabitants of the said City for defraying the necessary Expence thereof," were read the first time and in part considered, after which the Council adjourned to the first of the next month.
At a Council held at Philadelphia, Friday the First of February, 1750.
PRESENT :
The Honourable JAMES HAMILTON, Esqr., Lieutenant Gov- ernor.
Thomas Lawrence, Samuel Hassell, Benjamin Shoemaker, Robert Strettell, Joseph Turner, Thomas Hopkinson, ? Esquires. Richard Peters,
The Minutes of the preceding Council were read and approved.
" An Act for amendment of the Law relating to the Probate of . Wills within this Province " was read a second time. Agreed that the Bill be returned with the following Message :
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A Message from the Governor to the Assembly.
" Gentlemen :
"I have with the utmost care and Attention considered the Bill now before me, entituled " An Act for Amendment of the Law re- lating to the Probate of Wills within this Province," and on perusing the Clause of the Royal Charter which authorizes the Proprietary, His Heirs, and their Deputies and Lieutenants, to appoint and estab- lish any Judges and Justices, Magistrates' and other officers what- soever, for what causes soever for the Probates of Wills and the granting of Administrations within the Province, and with what Power soever and in such Form as to the said Proprietary or his Heirs should seem most convenient, and the Acts of Assembly of the fourth and tenth of Queen Anne, recited in the Preamble to the Bill, am of opinion that a Law of this kind is unnecessary and may be attended with dangerous consequences to the present and future Rights, Properties, and Estates of the Inhabitants of the Province, for the following Reasons :
"1. Such a Law is unnecessary because the Royal Charter giv- ing Power to the Proprietary to appoint Judges and officers, for what causes soever and with what Power soever, for the Probates of Wills, &c., and the Acts of the fourth and tenth of the Queen, direct- ing the Modes of such Probates, even in case of Litigation, sufficiently provide for the Probates of Wills, as well concerning real as personal Estates, which is manifest not only by constant usage since the making those Laws, but by all Acts, both Legislative and Judicial, since the Settlement of the Province.
"2. Were it otherwise this Bill would prove an incompetent Remedy, because by the Law of our Province Wills proved in Eng- land, the neighbouring Provinces, or elsewhere, before such as have Power to take Probates of Wills and grant Letters of Administra- tion, are sufficient to pass and assure Lands in this Province with- out further Proof.
" 3. The Declaration in the first and second Pages of the Bill, that the Powers granted by the Acts of the fourth and tenth of the Queen to the Register General being limited to those granted by the Royal Charter, can relate to the Probate of Wills concerning Per- sonal Estates only, if true (which must be admitted should the Bill become a Law ) would effectually subvert all Estates real depending on Probates made since and as under the Royal Charter and those Laws. For if the Register General had no Power to take the Probates of Wills concerning real Estates, all his Probates of Wills as to such Estates are Void, and the Devisees and those claiming under them must lose their Estates Unless the Witnesses are present to prove the Wills according to the Directions of this Bill.
"4. The Generality of the Words in the Beginning of the third Page, Viz. : ' When at any Time after the Publication of this Act,
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any Writing shall be exhibited, &ca.,' will admit the Exhibition of writings heretofore adjudged void according to the Laws now in Being, which would be highly inconvenient in regard to the Stirring up Strifes and Suits, the Alteration there may be in the Testimony by the Deaths or absence of Witnesses, and the subversion of Es- tates settled in and under the Heirs at Law.
" 5. In the third Page of the Bill are these Words : ' Whereby any Lands, Tenements, or real Estate within this Province is de- vised.' Here may not a Fact be uncertain which the Bill supposes will be always evident (to wit) : Whether Lands, Tenements, or real Estate are devised. For instance, devising all a Man's Estate will pass the real, and yet as from the Will it cannot appear whether he died seized of Lands, that must be a Fact unknown of which the Bill has established no Mode of trial, notwithstanding the Validity of the Proceedings in the Court of Law and of the final Sentence depend upon it. Again, suppose a man should devise real Estate in the Province and have none, would not such a Devise improperly within the Intent of the Bill draw the Jurisdiction from the Register to the common Law Court ?
"6. It is observable on these words in the same Page : ' Or where the Personal Estate thereby bequeathed shall exceed one Hundred Pounds ' that it may be questioned whether they mean one Hundred Pounds in Specie or Chattels to the Value of one Hundred Pounds, the same Reason subsisting to enact the like Mode of Trial for one as for the other. If the latter, how is the value of the Chattels to be ascertained ? Again, suppose a man having given particular Legacies under one Hundred Pounds bequeathes the Residue of his Personal Estate, how is the Residue to be ascertained or the Value known ? If a man bequeathes his Personal Estate generally, how are the Register and Justices to determine what it consists of, or the Value ?
" 7. In the fifth Page of the Bill there is a saving clause to In- fants, Married Women, Persons out of the Province or of unsound mind and memory, their Rights to sue and implead in the same man- ner concerning the validity of the said Wills; Under this Clause the Interest of Purchasers under Devisees and Heirs upon Wills decreed valid or invalid must be extremely precarious. But it seems to me to render the office of an Executor or Administrator very dan- gerous. The Law on Payment of Legacies or distributary Portions authorizes the Executor or Administrator only to demand Bonds, to indemnify against latent Debts. Immediately on the Tender of such Bonds they ought to pay the Legacies or Portions, and if they refuse the Law will oblige them, with the additional Charges of Interests and Costs ; And yet upon this Clause they may be compelled, on a second Sentences differing from the first, to pay the whole Estate to a new Executor or Administrator as the Case Shall happen, Altho' nothing can be recovered from those who received the Estate through
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absence, Death, Poverty, or other Disability, and the other saving Clause in the Sixth Page to all and every other Person and Persons who may think him, her, or themselves aggrieved, their Rights by Appeal, Writs of Certiorari, Writs of Error, or other Writs, as they shall be advised to be made returnable to the Supream Court of this Province, &c., is liable to the same objections, but is more dangerous with regard to the Consequences, as those Writs may be brought without Limitation of Time.
" For these Reasons I cannot pass this Bill into a Law. " JAMES HAMILTON.
" Philadelphia, February 1st, 1750."
" An Act for the more effectual preventing Accidents which may happen by Fire, and for suppressing Idleness, Drunkeness, and other Debaucheries," was read and agreed to with some amendments, which were ordered to be transcribed and delivered to the House with the Bill.
" An Act for the better regulating the Nightly Watch within the City of Philadelphia, and for Enlightening the Streets, Lanes, and Allies of the said City, and for raising of Money on the Inhabitants of the said City for defraying the necessary Expences thereof," was read a second time. It appearing to the Council that the Design of the Bill was really for the Publick Utility but wanted many amend- ments, the following Message was agreed to and sent to the House, and the Governor detained the Bill till the next Sessions :
" A Message from the Governor to the Assembly.
" Gentlemen :
"I am very sensible of the many Dangers the Inhabitants of the City of Philadelphia are exposed to by the Darkness of their Streets and the want of a well-regulated Watch in the Night, of their earnest Desires to have and your good Intentions to provide a suitable Law for their speedy Relief, and therefore no Bill concerning the City, with regard to its general Design and Utility, can possibly be more agreeable to my Inclinations than that now before me for the better regulating the Nightly Watch within the City of Philadelphia, and for enlightening the Streets, Lanes, Allies of the said City, and for raising of Money on the Inhabitants of the said City for defraying the necessary Expences thereof; But as the Provisions in the Bill which relate to the Properties, and may essentially affect the Liber- ties of the Citizens and other Inhabitants of the Province resorting to the City, are such as we have yet had no experience of, and seem in many Instances to deviate from the Laws of our Mother Country in the like Cases, I have resolved, in order to give it mature and deliberate consideration, to advise untill your Meeting, after next adjournment.
"JAMES HAMILTON.
"February 1st, 1750."
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John Morris, alias John Morrison, Labourer, Elizabeth Robinson, Spinster, Francis M'Coy, Taylor, and John Crow, Labourer, all of the City of Philadelphia, having been tried for Burglary at the Supreme Court held at Philadelphia the twenty-eighth, Twenty- ninth, and thirtieth Days of January last, and convicted and con- demned to death, the Record of their Conviction and Sentence was read. The Governor signified to the Council that the Judges in their Report to him had represented all of them as really guilty of the Facts with which they were charged, and that they were attended with many aggravating Circumstances, but that Crow, in Extenuation of his Guilt, had early made a Confession of the Fact, and informed of the Persons concerned with him, who were apprehended on Crow's Information, and if Mercy was to be extended he was the least guilty. After duly considering the horrid nature of the Crime, a warrant was ordered to be made for the Execution of Morrison, Robinson, and M'Coy, and a Reprieve for John Crow.
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