USA > Pennsylvania > Colonial records of Pennsylvania, Vol. V > Part 59
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"The Fact (to which I think it improper for me to give a name before a legal Tryal) was committed to the Northward of the Lines ; therefore if a Jurisdiction be claimed on Behalf of the Proprietor of Maryland, in my apprehensions it will be necessary at least to show it was done on some Tract of Land at the time of making the Royal Order possessed by or under his late Ancestor.
" As your claim now appears founded on the Right of Mr John
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Digges and the Possession of him, his Tenant or Tenants under that Right, I presume Clear Proofs ought to be made :
" Ist. That Mr. Digges had Right to Land under the Lord Bal- timore.
2dly. That the Place where the Act was done lyes within the Limits of that Land.
"3dly. That Mr. Digges, his Tenant or Tenants, were possessed of such Place at the time of the Royal Order.
" I have perused the Papers inclosed to me as Evidence, and with regard to the first Point cannot find the Authority by which Mr. Digges made his Survey so much as mentioned.
" As to the second, whether the Place where the Act was done lyes within the Limits of Land held by Mr. Digges ; It seems to me highly improper to rely on the memory of Mr. Owings concerning a Transaction so many years ago, when the matter is capable of Demonstration, by now surveying the Land of Mr. Digges accord- ing to his certificate of Survey and Patent, which I conclude, from the assertions in your Letter, must be Registered in your Land Office, If you please to furnish me with copies of them they will not only enable me to satisfy myself on this Point, but the first by shewing Mr. Digges held under the Proprietor of Maryland.
" As to the Third Point, I am at present inclined to think that it is not the manner of dispossessing Mr. Digges before the Royal Or- der, but his or his Tenants under him being in actual possession at the time of making it, that can give a Jurisdiction to your Proprie- tor. It is very probable Art, Fraud, and Violence were too frequent- ly used amongst the Borderers concerning their Possessions, and I wish Mr. Digges, considering his misfortune, may be less culpable than the rest of his neighbours; but to avoid these and establish future Peace and Tranquility were the Articles and Order made by which the Possessions of Lands then held under either Proprietor, however obtained, and their Jurisdiction over such Lands respec- tively, were granted and confirmed.
" Seeing the Question before us is in a Criminal Case, wherein the Life of one of his Majestie's Subjects seems immediately con- cerned, for possibly upon the Jurisdiction the nature of the Crime may depend, I must offer it to your Consideration whether I ought to admit as sufficient Proof ex parte Depositions taken in your Province, and one of them many Years ago upon some other occa- sion, or whether Law and Reason do not require that the Witnesses should appear and depose in this Province, in order to give the Prisoner the Benefit of Cross-examining, and counter-proving them if he can. I do not by this presume to direct in what manner you shall prove your Jurisdiction, but let you know that ultimately I must judge of the Proofs you are pleased to offer agreeable to Law, according to the best of my Understanding.
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PROVINCIAL COUNCIL.
"Farther, I request that whatever Papers have been or shall hereafter be transmitted to me concerning this Affair may be legally certified and attested, not that I have the least Diffidence of the Honour of your Government, but to avoid the just censure of allowing less than Authentick Testimonials in a matter of so great Importance.
" The Part of your Letter which endeavours to account for a per- emptory Demand of the Prisoner without Proofs, is very kind in presuming me unapprized of Facts done on the Borders above one hundred miles from the City of Philadelphia, and so many years before I came to the Government, and in declaring you could not harbour the least Thought of my Intention to countenance such a bold violation of his Majestie's order. In return I declare I never heard of Kitzmiller or his Dispute with Mr. Digges until the sad Disaster, and now all the Fruits I am like to reap from them are my Concern for an unfortunate Father and a great deal of anxiety and trouble. Surely all Persons must be unconcerned about the Place of Tryal except for the sake of Justice, which shall be invio- lably observed by me to the utmost of my skill and Power.
"I am, Sir, Your most obedient humble Servant,
"JAMES HAMILTON.
" PHILADELPHIA, 22d May, 1752."
President Tasker's Letter to Governor Hamilton. " ANNAPOLIS, 22d June, 1752. " Sir :
"I make use of this opportunity to acknowledge the Receit of yours of 22d past, and this I would have done sooner but that I have not yet been able to come at such Proofs as may be necessary to send you in this unhappy Occasion of the Murder of Mr. Digges' Son, and the Father living at so great distance as near as a hun- dred miles from hence, that it's difficult to hear from him; however such Proofs as can be got shall be sent you as soon as possible, so that I now only add that I am, Sir,
" Your most obedient humble Servant, " BENJA. TASKER."
A Letter from President Tasker to Governor Hamilton. "Sir :
"My Delay in answering your Letter of the 22d of May, but which was not received before the 20th of June, proceeded from a Willingness to give you a little Trouble as may be by
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transmitting to you at once all the Proofs which might be neces- sary to support our Claim of Jurisdiction in the Place where Mr. Digges' Son was murthered ; But the Distance, which is near 150 Miles from hence, has put it out of my Power to prevent many Difficulties and Disappointments which have happened in pursuing my Directions, so that I am under a Necessity of making this Answer rather than the Determination of an Affair of this Conse- quence should be further deferred, especially as I hope you will upon reconsidering the Proof lately sent, the additional one of Logsdon now inclosed, and the several Depositions which your Gov- ernment formerly had from This relative to the Land of Mr. Digges, think my Demand of Kitzmiller sufficiently justified, and that nothing can be thought wanting except the Authenticity of those Depositions, which you imagine to be proper for your own Justifica- tion, and shall be forwarded to you as soon as you signify in what manner you would have the Copies authenticated, unless you would chuse to have the Originals, which properly ought to be lodged here; but, however, I would upon your Desire furnish you with them for your greater Satisfaction.
" However cautious and tender you are not to give a hard Name to a cruel Fact, yet surely the Shooting a man in the Back after he had intreated not to fire the Gun, and when he was hastening away from the Place and Person supposed to be offended (tho' not the least Violence had been offered), must be ranked under that Species of Crimes which Our Law denominates Murther, and which the Voice of Nature, Humanity, and all Civilized Nations equally de- clares against and condemns. This may partly answer your Hint of a 'Possibility that the Nature of the Crime may depend on the Jurisdiction,' For I am at a loss to guess how the Circumstance of Jurisdiction either in the Proprietary of Maryland or Pennsylvania, or Ownership in Digges or Kitzmiller, can alter the Nature or even alleviate the Heinousness of such a Crime; Besides, if it could possibly influence the Case, would not the Prisoner have the full advantage of it on his Tryal, when all the Witnesses must be ex- amined Viva Voce and subject to his Cross Examination. But to pursue your Objection a little further, permit me to say that you can hardly perswade me or even Yourself Kitzmiller would object to the Jurisdiction of your Courts, tho' the Witnesses should in the fullest manner prove the Fact committed within that of this Government, whereas upon his Tryal in this Province He would not fail to insist at all Events on the Incompetency of Our's, so that even upon this Inequality of a proper Inquiry and Consideration with Regard to the Jurisdiction as far as the Prisoner or indeed the Proprietaries may be concerned, the Place of Tryal ought to be under this Government.
" You have pointed out Three Facts necessary to be proved for Maintenance of Our Claim, Viz. :
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"Ist. That Mr. Digges had right to Land under Lord Baltimore,
"2d. That the Place where the Act was done lies within the Limits of that Land.
"3d. That Mr. Digges, his Tenant or Tenants, were possessed of such Place at the Time of the Royal Order.
" Was the Subject of Dispute a Claim of Bounds or Property either between a Proprietary and a Tenant or between Tenant and Tenant, and determineable by the common Rules of Law, Your Expectation might be very reasonable ; But this Question is concern- ing a Jurisdiction directed and regulated by a particular Order of his Majesty, who has been also pleased to specify the Mode or Proof of such Jurisdiction, not by Surveys, Plans, and all the disputable Inquirys used in Common Cases, but by one Criterion only, i. e. Possession. Had it been otherwise, and that each Gov- ernment must have proceeded for their Satisfaction on the Point of Jurisdiction by the Plan you have prescribed, what endless Un- certainty, Contention, and Confusion would have happened in every Case from the meeting of the People on each side of the Borders in running Lines and proving Boundaries. We may be sufficiently convinced by what happens on common Surveys and opposite Inter- ests of the Borderers; So that an Order pursued by your scheme would rather raise fresh Disturbances and destroy the Peace than prevent the one and preserve the other, and in this view I presume the Royal Order has only subjected the Point of Possession to our Examination. But indeed it has yet taken further Care of these two Provinces by the strict Injunction contained in that Order to the Proprietaries and their Officers, not to receive or accept of Attorn- ments from the Tenants of the other Proprietary. You very rightly observe 'That probably Art, Fraud, and Violence were too frequently used amongst the Borderers concerning their Posses- sions.' Even This his Majesty most graciously provided against as far as his Royal Commands would influence the Tenants by ex- pressly forbidding them on one side to attorn to the Proprietary of the other ; But however inefficacious such Restraints may prove to the Conduct of the Tenants, We may be assured not the least Ap- pearance of Disobedience will be in those who hold the Reins of Government. In this Opinion I again set before you the Light in which this Transaction shews itself on the Face of the Depositions': That the spot where Dudley Digges was murthered had been sur- veyed for Mr. Digges the Father, under Authority of this Govern- ment some considerable time before his Majesty's Order in Council ; That John Lemmon, upon some Agreement with and under Mr. Digges, had possession of it; That Martin Kitzmiller purchased from John Lemmon his work (which I suppose means his Improve- ments) on the said Land; That Kitzmiller being told by Lemon that he had no Right to sell the Land, but that he (Kitzmiller) must buy of Mr. Digges, answered that if he could get Lemon's good will in his work he would hold it under Pennsylvania.
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" You have not intimated, nor was it ever pretended that Kitz- miller had any Warrent or Authority from your Government to slide himself thus artfully into Possession, so that I must own no Impu- tation lights there ; and even I would further believe that if Kitz- miller had made use of Publick Authority for such an indirect Purpose before the Order of Council, his Behaviour would have been publickly disavowed by the same Authority after that order. But as it is, Kitzmiller without any Sanction than what a Clandes- tine contract with Lemon, who lived on another Man's Land, could give him, obtains Possession. This possession whilst in Lemon was always considered to be under, and he actually taken for several years preceding as a Taxable of the Maryland Government, and when transferred to Kitzmiller could not make any Alteration in the Proprietary's Claim of Jurisdiction, whatever might happen in that of Mr. Digges or Lemon's Property. But, indeed, it must require a rare stretch of Reasoning to prove That one getting Possession of Another's Land by an underhand Transaction should divest the first owner of his Claim.
" You are pleased to say 'That you let me know that Ultimately you must judge of the Proofs I shall offer.' I suppose your mean- ing is not in the utmost Latitude of that Expression. It is true you may against every Proof refuse to make use of the Authority of your Government for the Delivery of Kitzmiller into the Hands of Justice here. But give me Leave to observe that any Proceeding against Kitzmiller coram non Judice, can neither prevent a due and legal Prosecution of him elsewhere, nor possibly a higher Examen of the whole matter as well as of our own Conduct.
"I am so greatly desirous of disembarrassing you and myself from such disagreeable subjects of Correspondence that it is with the greatest Reluctance I send inclosed a Copy of a warrent to col- lect Taxes in York County, to which the names of several Persons (I am told), known Inhabitants under this Government, are sub- joined. As the Necessity of preventing further Disturbances occa- sions this mention of it, I trust the same Motives will prevail with you to have an immediate Inquiry and stop put to what may in- croach on the Rights of this Government and derogatory to his Majesty's Order.
"I had almost forgot to assure you that if You are desirous of having the Persons (whose Depositions are already taken) re-ex- amined here in the Presence of any authorized on Behalf of your Government or the Prisoner, the same shall be complied with upon such reasonable notice of what time may be proper for the At- tendance of any from your Government as that We may have those Witnesses as well as any Others ready at some Place in this Pro- vince at the appointed time. I am,
" Sir, Your most obedient humble Servant,
" BENNJA TASKER.
" ANNAPOLIS, 30th July, 1752."
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The Deposition of John Logsdon, aged thirty-six Years or there- abouts, being sworn on the Holy Evangel's of Almighty .God, Saith :
"That when a certain John Lemon, about sixteen or seventeen Year past, as near as this Deponent can remember, settled the Place and built Houses where Martin Kitzmiller now lives, this Deponent then lived in the Neighbourhood of the said Place near Conewaga, and had lived there for some Years before, and was well acquainted with John Lemon, and afterwards with the aforesaid Martin Kitz- miller.
" That some time before the said John Lemon settled the afore- said Place had the same surveyed for him (as this Deponent under- stood) by order of Mr. John Digges, this Deponent in Company of some others, and particularly amongst whom was Robert Owings, had been riding near the said Place looking for Hogs, and as they came down the Branch the said Robert Owings told this Deponent or some of his Company they should now soon get upon Mr. John Digges' Land, and at the time he, the said Deponent, and Company came to and entered upon a rich Piece of well-timbered Land a little Distance above the aforesaid Settlement made by the afore- said Lemon, he, this Deponent, very well remembers that the afore- said Robert Owings told this Deponent and Company they were now upon the said Mr. Digges' Land ; this was about 18 or 19 Years past.
" This Deponent further saith, that he very well remembers that the aforesaid John Lemon built Houses and lived sometime on the aforesaid Place where this Deponent is certain that the Land then shewed this Deponent and Others at the time of their Hog hunting aforesaid includes the aforesaid settlement of John Lemon, and is where the aforesaid Martin Kitzmiller now lives. This Deponent also saith that sometime after the said John Lemon settled on the afore- said Place the aforesaid Martin Kitzmiller bought the same and lived thereupon and went to work about cutting a Race or Water Course for a Mill, and at the same time the said Kitzmiller lived in the same Houses that were built by the aforesaid Lemon, and is now about fourteen Years past.
" That this Deponent very well remembers that he was informed in a Year or two after that the aforesaid Martin Kitzmiller was treating with the aforesaid Digges to purchase the said Land, and had provided about Forty Pounds in Money, and intended the same for said Mr. Digges in order to secure the said Land; but instead thereof this Deponent very well remembers that the said Martin Kitz- miller, as this Deponent was then informed, laid out the said Money to purchase at a Vendue a Place where a certain John Hufflemire then lived, and which was then sold or soon after, at the same time this Deponent understood that the said Digges was something disturbed at the Disappointment thereof. That likewise this Deponent very VOL. V .- 38.
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well remembers, and at sundry times was informed that the said Martin Kitzmiller would purchase of said Digges, and at other times would not, but would hold under the Proprietaries of Pennsyl- vania, and about five years ago this Deponent was present when the aforsaid Kitzmiller came to the said Digges and agreed with the said Digges in the Purchase and to have same Run out and sur- veyed for him; to this End this Deponent was employed to survey the same, and in company with the late Mr. Dudley Digges, Jacob Bauker, and Miles Coyle, this Deponent did survey and run the Lines of the same agreeable to a Division made and agreed upon between the aforsaid Bauker (a former Purchaser of the said Digges) and the aforsaid Martin Kitzmiller; that this Deponent like- wise very well remembers that the aforsaid Martin Kitzmiller Com- plained that the Land Consisted in too much bottom Land and Meadow and that he should not have Plow Land enough, which this Deponent told him he might easily add enough of that sort by taking of the Proprietaries of Pennsylvania, upon which the said Kitzmiller swore he would have none of Penn's Land.
" This Deponent further knows ard remembers that the said John Lemon upon his settling this Land built a Dwelling House, a Stable or Barn, and thinks a third House, but of this last Deponent is not certain, besides cutting down and clearing a very heavy Piece of timbered Land and fencing the same, in doing of which the said Lemon was at the Expense of employing a certain John Deerdove to assist him therein, and this Deponent knows the said Lemon paid the said Deerdove towards the Expence thereof two valuable Young Bay Horses, which was done by the said Lemon before the said Kitzmiller entered thereupon.
"This Deponent further saith, that the said Kitzmiller to the best of this Deponent's Knowledge hath neither grubbed or cleared any more land or added further Improvements within the said Land claimed by the said Digges, excepting the Mill, a little Meadow, with some Addition to the Stable or Barn, and a little Spring House; and further this Deponent saith not.
" Sworn before JOHN DARNALL, one of his Lordship's Justices of the Provincial Court of Maryland, June 28th, 1752."
Whereupon, the Council having heard, debated, and maturely considered the Premises, are from the express words of the Pro- prietaries Agreement confirmed by the Royal Order, and their manifest reasonable Intention, unanimously of Opinion :
That no Possession at the Time of making the Order of Lands to the Northward of the Temporary Line can give Jurisdiction to the Proprietor of Maryland over those Lands, unless such Posses- sion was held by the Proprietor of Maryland or immediately or mediately under him.
That no Right at the time of the Royal Order to Lands North-
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ward of the Temporary Line, by or under the Proprietor of Mary- land, can give a Jurisdiction to that Proprietor over such Lands, unless they were at the time of the Order possessed by him or me- diately or immediately by others under that Right.
And they are further of Opinion :
That supposing Mr. John Digges or his Tenant had Possession of the Land where the Crime was committed at the Time of the Royal Order, Yet it does not appear from any Part of the Deposi- tions that such Possession was taken or held by any Warrant or Patent, Power or Authority, of any kind whatsoever, from or under the late Proprietor of Maryland, his Agents or Attorneys.
That such Power or Authority to take or hold Possession of Lands as aforsaid ought properly to be in writing and not by words alone.
That seeing the President in his. Letter of the fifth of May last did rely upon it that the spot where the deceased was killed had been surveyed (and indeed patented) to Mr. John Digges, under authority of the Government of Maryland some considerable time before his Majesty's order in Council, and the Governor by his an- swer of the twenty-second of that Month requested the President to furnish him with copies of the Survey and Patent to enable him to satisfy himself of the Truth of those Facts, which the President has declined doing, and therefore has in effect denied, it is reason- able to conclude the President was misinformed concerning those Facts when he wrote that Letter.
That as it appears by the Depositions Martin Kitzmiller at the time of the Royal Order was in Possession of the close or Tract of Land where the crime was committed, claiming in his own Right and disowning the Right of Mr. John Digges and the Proprietor of Maryland, that Possession, however obtained, according to the words and spirit of the Agreement, excluded the Proprietor of Maryland from Jurisdiction over the Land.
That Supposing Martin Kitzmiller by his Purchase from and Entry under John Lemon became the Legal Tenant of Mr. John Digges, and his Possession ought to be esteemed the Possession of Mr. Digges, yet such Possession of Mr. Digges, if it was not taken by or held under some authority or warrant from the Proprietor of Maryland, as effectually excludes the Jurisdiction of that Proprie- tor over the Land as the Possession of Martin Kitzmiller indepen- dent of Mr. Digges; and
That in this case where the Jurisdiction to try one of his Ma- jesty's Subject for a Capital Crime depends on Right to Land, upon which Right the nature and Quality of the offence may possibly turn, it would be highly unreasonable on a question concerning the Right in Order to determine the Jurisdiction, tho' in a Summary manner, to admit for Truth matters deposed out of the Hearing of
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the accused and without allowing him the just and legal advantages of either excepting to or Cross Examining the Witnesses.
Therefore they did unanimously advise the Governor no longer to suspend the Tryal of the Prisoner, and did further advise him with all speed to let the President know the Time of Tryal, that any Persons Authorized by those concerned in the Administration of the Government, or any other Persons there may have opportu- nity to lay before the Grand and Petit Juries all legal Proofs to shew the Jurisdiction in this case belongs to the Proprietor of Maryland, and that if it should be so found the Prisoner may be delivered to the Ministers and Officers of Justice in that Province for Tryal. Which the Governor did in the following manner :
A Letter from Governor Hamilton to President Tasker. " PHILADELPHIA, September 28th, 1752. " Sir :
"I acknowledge the Receit of your Favour of the thirtieth of July last with the Deposition of John Logsdon inclosed, and should have returned you an answer long ago had not my Indisposition and a Desire to lay the Affair before the Council here for their opinions and advice delayed me.
" I have now laid the whole affair before them, and have there- upon received their opinion and advice, a Copy of which at large I enclose to you, and as I concur with them in the former, I am come to a Resolution of following the latter.
" I therefore beg Leave now to acquaint you that the Court for the Tryal of Jacob Kitzmiller for killing the late Mr. Dudley Dig- ges, will be held at York Town in the County of York, in this Province, on the thirtieth Day of October next, where Persons authorised by your Government, if it be thought convenient, or any others concerned, may lay before the Grand and Petit Juries qualified to try him, all legal Proofs to shew the Jurisdiction in this case belongs to the Lord Proprietor of Maryland.
" Until the receit of your last Letter it was perfectly unknown to me that Taxes had been assessed or levied by the Commissioners, &ca., of the County of York on any of the Inhabitants by the Royal Order made Subject to your Jurisdiction, and in order to prevent any thing of that kind hereafter, I immediately dispatched Orders to discontinue all Proceedings thereupon if any such had been made, being desirous to the utmost of my Power to avoid all Occasions of Contention upon these Points, and to maintain Peace and good Neighbourhood between the two Provinces agreeable to his Majesty's Royal Intention.
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