USA > Pennsylvania > Colonial records of Pennsylvania, Vol. V > Part 58
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Then the Fee Bill was read with the proposed amendments in their respective Places and agreed to, and the Bill order'd to be returned to the House at the same time as the attachment Bill.
MEMORANDUM.
At night Two Members waited on the Governor to acquaint him that the House was met according to Adjournment, and was ready to receive any thing he might have to lay before them ; the Gover- VOL. V .- 37.
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nor expecting this message had directed the Secretary to inform them that he would send the two Bills in His Hands to the House to-morrow morning.
At a Council held at Philadelphia, Saturday the 22d of August, 1752.
PRESENT :
The Honourable JAMES HAMILTON, Esquire, Lieutenant Governor.
Robert Strettell, Richard Peters, S Esquires.
The Minutes of the preceding Council were read and approved.
The thirteenth Instant .- The Fee Bill was returned to the Gov- ernor, with a Message that the House had agreed to some of his Amendments, and in others adhered to the Bill.
The fifteenth Instant .- A Message was delivered to the Governor that the House had agreed to his proposed Amendments of the Bill for Regulating Attachments, and desired to know when they might expect the Governor's Determination on the Fee Bill.
On the eighteenth Instant-his Honour having carefully examined the several Amendments which the House had not agreed to; as to some that were not very material he withdrew them, but as to others and particularly those relating to the Proprietaries Secreta- ries and the Attorney General's Fees, he adhered to his Amend- ments, and sent the Bill again to the House with the particulars which he had receded from.
The same Day the Bill was again returned by two members, with a Message " that the House had agreed to some of the Gov- ernor's Amendments, but in those relating to the Proprietaries Secretary they still adher'd to the Bill, and assign'd the following Reasons," namely, " that by the Act of the 9º King George, Every Patent for Land to be in Parchment was Seven Shillings and Six Pence. By the Act of the 1st George I., Every Patent for Land to be in Parchment is settled at Nine Shillings, and by the Act of the 9º Anne, every Patent for Land is likewise nine shillings ; that they had now inserted in this Bill the sum of Ten Shillings for every Patent of Land to be in Parchment, Some of which the House was convinced were printed on Parchment, and required only the filling up some few Blanks, and therefore they cou'd see no Reason to enlarge this Sum." "That the House had examined the former Acts and considered the Fees of the Attorney General in Capital Causes, and were of Opinion that the Allow- ance made by the Bill was sufficient, and therefore adhered to the Bill."
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PROVINCIAL COUNCIL.
On the nineteenth Instant the Governor returned the Bill with the following Message :
A Message from the Governor to the Assembly.
" Gentlemen :
" I have well considered the Reasons given in your Paper of yes- terday for the Amendments therein proposed, and sincerely wish our sentiments concerning them had been the same.
" The Business of the Proprietaries Secretary preparatory to and in making out Warrants and Patents for different Persons is so ex- tremely various that it seems impossible by Law to ascertain a re- ward that shall be exactly adequate to each service; therefore, all that can be done is to settle a Medium by which, on the whole, he may receive a compensation for his Trouble; and this, I think, will not be exceeded by the Assembly's agreeing to my Amend- ments.
" The Fees allowed the Attorney General by my Amendments I am of opinion in general are not equal to the Trouble and Skill necessarily required to carry on criminal Prosecutions, many of which must always be lost through the Poverty of the Defendants.
"For these Reasons I cannot recede from my former amendments. "JAMES HAMILTON. " August 19, 1752."
In the Afternoon the House desired a Conference on this subject with the Governor, and he appointed it be the next morning in the Council Chamber, where he accordingly met a Committee of the House and laid before them the particulars of the Services done by the Proprietaries Secretary in and previous to the issuing of War- rants and Patents, and gave them Liberty to insert them into the Bill without any additional Fee for them, but alledged that on this Account, and for many other Reasons then enumerated, he thought the Fees as amended by him were just and reasonable and what he wou'd adhere to. His Honour likewise enter'd into the immense Trouble the Attorney General was put to by assisting Magistrates in the Examinations of Criminals on their being first apprehended, and by giving gratis his Advice to the several Justices in a variety of matters which it cou'd not be supposed plain Country People uninstructed in the Laws, and without experience of Court Pro- ceedings, cou'd understand ; and he added to this that the People prosecuted were generally so poor as scarce ever to pay the King's Attorney his Fees, so that he cou'd not but be of opinion that the Fees allowed by him, together with the Salary of one hundred Pounds given by the Assembly, were not adequate to a skilful and and faithful Performance of the Duty of an Attorney General, and that the Gentleman who at present fill'd this Office was inferior to none, either in understanding or Diligence ; that it was of bad con-
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sequence not to reward publick officers according to their real merit, and therefore he wou'd not recede from his Amendments.
The House having before agreed to the Attachment Bill, and now to the Fee Bill, the same were engrossed and compared by a Mem- ber of Council and two Members of Assembly, and on this Day they were enacted into Laws by the Governor, and then the Speaker presented him with an Order on the Treasurer for the Remainder of his Support for the Current Year. And the House, with the Governor's Consent, adjourned to the thirtieth Day of September next.
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At a Council held at Philadelphia, Monday the 18th of Sep- ber, 1752.
PRESENT :
The Honourable JAMES HAMILTON, Esqr., Lieutenant Gov- ernor.
Thomas Lawrence,
Joseph Turner,
Robert Strettell, Richard Peters, Esquires.
William Logan,
The Minutes of the preceding Council were read and approved.
The following Petition was read :
" To the Honourable JAMES HAMILTON, Esquire, Governor of the Province of Pennsylvania, &c.
" The Petition of Charles Dupui, Master or Commander of the Sloop Lelancon, of and from Cape Francois, most humbly Sheweth :
"That on or about the sixth Day of August last your Petitioner sail'd in the said Sloop with a Cargo of Molasses and Rum bound on a Voyage from thence to Louisburgh; That on his Passage in the Latitude 37 North, about the twenty-fifth Day of August aforesaid, Your Petitioner met with a very severe Gale of Wind from the North-East, which continued so violent for several Days that it Sprung his Mast, Boom, and Bowsprit, and so disabled your Petitioner's Sloop as render'd it impossible to proceed on her in- tended Voyage without being refitted.
" Your Petitioner therefore humbly prays your Honour's Per- mission to Refit his Vessel in this Port, and purchase so much Pro- vision as will be nesessary for his Passengers and Marines to com- pleat their Voyage; and in Order thereto may be admitted to sell so much of his Cargo as will answer those Purposes.
" And your Petitioners will ever pray, &c.,
" DEPUEY.
"PHILADA., 18th Sept"-, 1752."
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PROVINCIAL COUNCIL.
It appearing to the Council on the Examination of the Petitioner that the Contents thereof were true, the following Warrant was signed by the Governor, and it was further order'd that the Collector be made acquainted with the Premises, and that Officers be sent on board to continue there whilst the Sloop is permitted to stay in this Port :
" The Honourable JAMES HAMILTON, Esquire, Lieutenant Governor and Commander-in-Chief of the Province of Pennsyl- vania and Counties of New Castle, Kent, and Sussex, on Dela- ware,
" To Messrs. Thomas Lloyd, Thomas Penrose, and James West of the City of Philadelphia:
" It having been represented to me by Charles Depui, Captain of a French Sloop called the Lelancon, that the said Sloop in her Voy- age from Cape Francois to Louisburg, on or about the sixth Day of August last Sprung her Mast, Boom, and Bowsprit, and was thereby disabled to proceed on her intended Voyage and obliged to put into this Port in order to refit. These are to request and authorize you, the said Thomas Lloyd, Thomas Penrose, and James West, to ex- amine the said Sloop and report to me her condition, that it may be further considered what orders to give relating thereto.
" Given under my Hand and the Lesser Seal of the said Province, at Philadelphia this Eighteenth Day of September, 1752.
" JAMES HAMILTON."
On the nineteenth Instant the following Report was delivered to the Governor, and we consented to the sale of a small Quantity of her Cargo and gave express orders that she should repair no more than what was absolutely necessary, and depart in a few days and the Collector was requested to see this done himself :
Report of Thomas Lloyd, Thomas Penrose, and James West.
" Pursuant to the within Order, We the Subscribers have sur- veyed the said Sloop's Mast, Boom, and Bowsprit, and cannot ob- serve either of them sprung; But we find the Heel of the Bowsprit wants Securing. The Mast is Sap Rotten in several Places about the Partners and Clasp of the Boom, and appears to have been so a considerable Time, and were she to belong to this Port it would scarce be deem'd safe, nevertheless we think it may be secured with Fishes.
"The upper Works in general seem much decayed, her Quarters and Bows appearing to have worked and Twisted in the Sea, but upon the General we imagine her as capable of performing the future Part of the Voyage (with a trifling Expence) as she has the Former.
"As Witness our Hands this 19th Sept"-, 1752.
" THOMAS LLOYD, "THOMAS PENROSE, " JAMES WEST."
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MINUTES OF THE
At a Council held at Philadelphia, Wednesday the 27th Sep- tember, 1752.
PRESENT :
The Honourable JAMES HAMILTON, Esquire, Lieutenant Governor.
Thomas Lawrence, Wiliam Till, r
Robert Strettell, Benjamin Shoemaker, Esquires.
Richard Peters. William Logan,
The Minutes of the preceding Council were read and approved.
The Governor laid before the Council the following Letters and Depositions received from the Honourable Benjamin Tasker, Es- quire, now President in the Province of Maryland, with his respec- tive answers to them, desiring their opinion and advice what he. ought further to do on the case mentioned in those Letters :
A Letter from Benjamin Tasker, Esqr., to Governor Hamilton. " ANNAPOLIS, 16th April, 1752. " Sir:
"The Governor received a Petition from Mr. John Digges some- time since, representing that his Son Dudley Digges was murthered within the Limits of this Province last February by Martin Kitz- miller, his Son Jacob, and others of his family. The Governor's In- disposition, and even dangerous condition almost ever since the Re- ceit of that Petition, has prevented his considering the matter, nor should I have given you this Trouble but that upon having Infor- mation this Day that the 27th Instant is appointed for the Tryal of the said Kitzmillers at York Town, the Governor desired me to consider what is fit to be done.
"As we are assured the Place where the Fact was committed lyes within the Limits of this Province and Government, I hope you will be pleased to order the offenders to be delivered to the proper offi- cers of this Province that Justice may be done agreeable to Law.
"I am Sir, your most obedient humble Servant
" BENJA. TASKER."
Governor Hamilton's Answer to Benjamin Tasker, Esquire. " PHILADELPHIA, 24th April, 1752. " Sir :
"I have carefully enquired into the unhappy Affair mentioned in your Letter, and find one Jacob Kitzmiller killed the deceased, Mr. Digges, to the Northward of the Temporary Line run by his Majesty's order of the year 1738, and that he is now imprisoned at
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PROVINCIAL COUNCIL.
York to receive his Trial as for an offence committed within that County.
"I presume these Matters are indisputable and well known to you, therefore why you should hope I would wrest the Offender out of the Hands of Justice here and order him to be delivered to the officers of your Province for Tryal, meerly because you are pleased to alledge the Place where the Fact was committed lyes within the Limits of your Province and Government, appears to me somewhat extraordinary.
"You have been misinformed as to the Time of Kitzmiller's Tryal, which has not hitherto been appointed; not through any Doubt of Jurisdiction, but the late severity of our Weather and the necessary Attendance of our Judges in Criminal Affairs at a tedious Supream Court.
" However, in regard to your bare Claim of Jurisdiction, I shall order the Tryal to be delayed for a reasonable time, that your Gov- ernment if they think fit may disclose to me the Evidence upon which they demand it.
"Such an afflicting Disaster must now too late suggest to Mr. Digges very mournful Reflections on the Imprudence of resorting to Force, though under Colour of Law, to gain the Possession of dis- puted Lands near the Borders, especially at this Juncture, when we have great reason to hope for a speedy end of all our Differences by an Execution of the Lord Chancellor's Decree.
"I am extreamly sorry to hear of Governor Ogle's Indisposition. I beg you will please to present my Compliments to him with my hearty wishes for his speedy Recovery, and believe me to be, with great Regard, Sir,
" Your most obedient, humble Servant, "JAMES HAMILTON."
A Letter from President Tasker to Governor Hamilton. " Sir :
" Although the Messenger who brought your Dispatch of the 24th of last Month, relating to the cruel Murder of Mr. Digges' Son, was a long while on the Road, yet I should have answered it sooner if the Condition of our late Governor, whose Death was daily expected and has since happened, had not induced me to forbear the Necessity of taking upon me the Administration of the Govern- ment.
"However true it may be that this wicked Act was committed to the North Ward of the Temporary Line run by his Majestie's Order of 1738, yet by the 3d Paragraph of that order ' All other
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MINUTES OF THE
Lands in Contest between the said Proprietors now possessed by or under either of them shall remain in the Possession as they now are (although beyond, the Temporary Limits hereafter mentioned), and also the Jurisdiction of the respective Proprietors shall continue over such Lands until the Boundaries shall be finally settled; and that the Tenants of either side shall not attorn to the other, nor shall either of the Proprietors or their Officers receive or accept of Attornments from the Tenants of the other Proprietor.'
"The inclosed Depositions of Robert Owings and John Lemmon prove that the Spot where Dudley Digges was murdered had been surveyed (and indeed patented for Mr. Digges the Father), under Authority of this Government, some considerable time before his Majestie's order in Council; That John Lemmon upon some Agree- ment with and under Mr. Digges had Possession of it; That Martin Kitzmiller purchased from Lemmon his work (which I sup- pose means Improvements) on that Land; That Kitzmiller being told by Lemmon that he (Lemmon) had no Right to sell the Land, but that he (Kitzmiller) must buy of Mr. Digges, answered that if he could get Lemmon's good will in his work he should not value Digges, for that he would hold it under Pennsylvania.
"I must presume you unapprised of these Facts when you thought my Expectation of having Kitzmiller, the Murderer, delivered into the hands of Justices in this Province extraordinary, since I cannot harbour the least thought of your Intention to countenance such a bold violation of his Majestie's order, endeavoured to be disguised by a shallow Artifice of Kitzmiller's getting Possession of Land known at the very time to be taken up and held under Maryland, and then declaring he wou'd hold under Pennsylvania.
"Other witnesses may be had to the same Purpose, but as these are full and express, and the Men of a fair Character, it may be needless to trouble you with any more at present, and I hope these will induce you not to wrest the offender from Justice (as you ex- press it) but to send him into this Province where he can only have a legal Tryal.
" I concur in your opinion of the Imprudence in resorting to Force in order to gain Possession of Lands near the Borders or any where else, and I am perswaded you will also join with me in discouraging such Practices as Kitzmiller made use of, which gave occasion to Force; For the Peace of our Borders can never be preserved if once this kind of Doctrine should prevail, that a Possession once gained by any mean is to be maintained at all Events.
"I am, Sr., your most obedient humble Servant,
" BENJA, TASKER.
" Annapolis, 5th May, 1752."
"The Deposition of John Lemmon, aged forty-five Years, or
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PROVINCIAL COUNCIL.
thereabouts, being sworn on the Holy Evangel's, declares as follows, viz* :
"That about fourteen years ago, as near as this Deponent can re- member, a certain Robert Owings laid out two hundred Acres of Land, part of Digges' Choice, which said Land the said Owings told this Deponent belonged to Mr. John Digges. After the said Deponent had lived about three Years on it he then sold the said Tract of Land to a certain Henry Sell, and immediately after that the said Deponent had laid out for him, by the aforesaid Owings, one hundred Acres more of the same Tract or Parcel of Land called Digges' Choice, where a certain Martin Kitzmiller now lives, the said Kitzmiller having bought in about a Year's time the said De- ponent's work thereon, tho' at the same time the said Deponent in- formed the said Kitzmiller that the said Deponent had no Right to sell the Land, but he must buy of the said John Digges, upon which the said Kitzmiller told this Deponent if he could get his good will in his work he should not value said Digges, for that he would hold it under Pensilvania; and further, this Deponent declares that about seven or eight Months past, as this Deponent was passing to the said John Digges' Quarter on the same Land to do some Business, when he, this Deponent, called at a certain Peter Oler's, who told this Deponent that he understood the said John Digges was coming to survey some Lands for a certain Jacob Banker ; that he, the said Oler, at the same told this Deponent that the said Digges had no Land there, but that all belong to Pennsylvania; that he, the said Oler, went then with this Deponent to the above-mentioned Kitz- miller's, near which Place the said Digges was expected to come that Day to survey Land for the aforesaid Banker, at which time he, the said Oler, declared to this Deponent that he would with a club or stick knock the said Digges down and drive him away, and the said Kitzmiller swore he would shoot and kill the said Digges if he offered to survey that Land; this Deponent asked the said Oler and Kitzmiller whether he should tell the said Digges, to which they both answered Yes he might go and tell the said Digges; and further, this Deponent says that he, the said Oler, told this Deponent that he was informed by a Man from Rock Creek the said Digges had lost all his Land, that the Assembly had taken it from him; And further saith not. Taken before us, the Subscribers, two of his Lordship's Justices for Baltimore County, this 18th Day of July, Anno Domini, 1746.
"W. YOUNG, "SAM" OWINGS."
The Deposition of Robert Owings, aged fifty-three or thereabouts, being sworn on the Holy Evangel's of Almighty God, declares as followeth, Vizt. :
" That on or about the 26th Day of February last past, this De-
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ponent hearing Mr. Dudley Digges was shot and was much wounded near the Dwelling Place of a certain Martin Kitzmiller by the said Kitzmiller's Son Jacob, this Deponent went to see the said Mr. Dudley Digges at the Place where he found him lying in great ex- tremity at the End of the said Kitzmiller's Smith Shop, and in about half an hour after expired; That several Persons were then at the said Place, and by all the Information this Deponent could then and since have, the said Mr. Dudley Digges died within five Yards of the Place where he was shot ; That this Deponent very well re- member'd he had the directing of the Survey of Mr. John Digges' Land at Conewago, call Digges' Choice, and when the Surveyor came first to run the Lines he did not finish the same ; in some time after he came again and began the Whole again and finished the Survey for Return, And the very Spot where the aforesaid unfor- tunate Murder was committed was both times included in the said Surveys ; And this Deponent further saith that the said Mr. John Digges had given him Instructions to settle some Germans within the Lines of his said Survey, in Pursuance whereof this Deponent did survey one hundred Acres of said Land for a certain John Lemmon, who then went to the said Digges agreed upon Terms and settled the same, which Settlement was included within the Lines of the original Tract or Survey as well as within the one hundred Acres so surveyed by this Deponent as aforesaid, and is the same Place where the said Martin Kitzmiller now lives, and where the aforesaid Murder was committed; And this Deponent fur- ther saith that he believes he had Notice of his Majesty's Order for quieting the Possessions on the Lines dividing the two Governments of Maryland and Pennsylvania as soon as any Person had heard of it in this Province, And that he received this notice from Pennsyl- vania, and well remembers that the last Survey was made a long time before the Royal Order aforesaid was known here, and that the said Kitzmiller had bought the Plantation aforesaid a considerable time before this Deponent had heard of the order and had agreed with John Lemmon aforesaid, as the said Lemmon told this Depo- nent to pay the aforesaid John Digges what Money the aforesaid Lemmon had agreed and contracted with the said John Digges for the Land aforesaid; And he further saith that he has frequently heard the said Kitzmiller say that he wou'd agree with the aforesaid John Digges for the same.
" ROBERT OWINGS.
" Sworn to before me this Second Day of May, 1752.
" GEO. STEUART."
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Governor Hamilton's Letter to President Tasker. " Sir :
"Your Letter in answer to mine of the twenty-fourth of last
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PROVINCIAL COUNCIL.
Month came not to my Hands till the 14th Instant, to which I shall now endeavour to reply in the clearest Manner I am able, and in the first Place I readily acknowledge His Majesties's Orders con- firming the Agreement of your late and our present Proprietaries is the Rule that ought to govern us, to which I shall on this and every other Occasion pay the most chearful and exact obedience.
"The third and fourth Articles of the Agreement are,-'That all other Lands in Contest between the said Proprietors now possessed by or under either of them, shall remain in the Possession as they now are (although beyond the Temporary Limits hereafter men- tioned), and also the Jurisdiction of the respective Proprietors shall continue over such Lands until the Boundaries shall be finally set- tled, and that the Tenants of either side shall not attorn to the other, nor shall either of the Proprietors or their Officers receive or accept of Attornments from the Tenants of the other Proprietor.'
""'That all vacant Lands in contest between the Proprietors not lying within either of the three Lower Counties, and not pos- sessed by or under either of them, on the East side of the River Sasquehannah down so far South as Fifteen miles, and one Quarter of a mile South of the Latitude of the most Southern Part of the City of Philadelphia, and on the West side of the said River Sasquehan- nah, down so far South as fourteen Miles and three-Quarters of a mile South of the Latitude of the most Southern Part of the City of Philadelphia. The Temporary Jurisdiction over the same is agreed to be exercised by the Proprietors of Pennsylvania and their Gov- ernor, Courts, and officers, and as to all such vacant Lands in con- test between the Proprietors, and not now possessed by or under either of them, on both sides of the said River Sasquehannah South of the respective Southern Limits in this Paragraph before men- tioned, The Temporary Jurisdiction over the same is agreed to be exercised by the Proprietor of Maryland and his Governor, Courts, and officers, without Prejudice to either Proprietor and until the Boundaries shall be finally settled.'
"These Articles and order establish in the Proprietor of Mary- land a Jurisdiction over all Lands then Possessed by or under him, altho' to the Northward of the Temporary Line, and in the Propri- etaries of Pennsylvania a Jurisdiction over all the other Lands to the Northward of those Lines.
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