Colonial records of Pennsylvania, Vol. XIII, Part 20

Author:
Publication date: 1838
Publisher: [Harrisburg] : By the State
Number of Pages: 804

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4. Because we apprehend it to be one of the most important and interesting enquiries in a civil government, how far any of its members shall be abridged of their rights as citizens when, for a short time, they become soldiers. The law, we apprehend, should be plain, clear and explicit, to invalidate an election for the inter- ference of persons thus circumstanced, or any irregularities in the mode of conducting it, which have not had the manifest and deci- sive influence on the event. We who dissent on this occasion, are not sufficiently informed of the law in this respect, nor, highly as we may esteem the legal abilities of our fellow members, can we suppose they have at once become such able lawyers and distin- guished casuists, as to claim our confidence in preference to those who have m .de that science their particular study and professional- duty. And while on the one hand, we would earnestly wish to pre- serve the freedom of election from undue exertion of power,; on the other, we would as earnestly preclude an idea that those de- fending their country, and on special occasions called from the du-

, ties of civil to military life, lose any portion of their privileges in

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the former ; an idea which, in our opinion, would have the most fatal and discouraging effects upon the militia upon all future occa- sions. The degree of interference, the mode of it, the irregular- ties of time and place in holding elections, and manner of conduct- ing them, are facts, but the operation of law upon these facts so as to vacate an election, or only subject the authors of such practices or irregularities to punishments, is quite another consideration, to which, tho' this Board may be competent in jurisdiction, we do not believe it to be in judgment, and, therefore, ought to have availed themselves of that legal assistance and advice which the constitu- tion expressly holds forth in some cases, and implicitly in others, and which has been the usage and practice of the Board on many former occasions, of much less difficulty and importance.

JAMES POTTER, Vice Pres't, JOHN PIPER, CHRISTOPHER HAYES, JOHN LACEY, JOSEPH GARDNER

The following dissent of the Honorable James Ewing, Dorsey Pentecoast, and John Van Campen, Esquires, to be entered after the motion for considering seperately the specific charges that have been deemed to be supported by evidence.

We dissent :

1. Because the specifie charges deemed by Council to be sup- ported by evidence do not exhibit a true and full state of the testi- mony. Many of the most important facts that were admitted or incontestably proved, do not appear in the specific charges as they are found. No notice is taken of the general orders of the com- mander cf the militia. It is in clear proof that the tickets were formed by the officers without the consent of the privates; that they were distributed by the officers to the privates only on the morning of the election, or even after that time ; that the militia in general had no opportunity of consulting their friends, or such of them as they might have chosen to consult, with regard to the propriety or impropriety of the tickets put into their hands ; that the greatest part of the militia who voted at the election voted under the orders of General Lacey. None of those facts, though incontestible and most material, are to be found in the specific charges that are voted to be supported. Are such facts to be disregarded and past over in contemptuous silence ? Are they to have no influence on the deliberations and decisions of Council upon this election ? Are we to view the whole truth, or are we to shut our eyes against the most clear and essential parts of the testimony ? The validity or inva- lidity of the election must depend on the facts, compared with the law, and not on a specification of them in a set of articles. Coun- cil ought to determine on the merits of the election. The election may be void, though a single charge were not supported. 1 VOL. XIII .- 15.

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2. Because, to consider the specific charges separately, in order to determine how far each of then to invalidate the election, is to divide, and by dividing to weaken the force of the charges, and (which is of much more consequence) of the evidence. This matter comes before Council on a petition to set the election aside and to order a new one to be made. The final result of the proceedings of Council must be either to set it aside or to establish it. Such previous steps ought to be taken as will lead naturally and directly to this final result. It ought to be the joint result of all the material facts, which may be very different from the separate effects of detached parts of them. The election cannot be properly considered without a collected and comprehensive view of all the cir- Cumstances which could have any operation on its necessary and es- sential properties The necessary & essential properties of an elec- tion in this Commonwealth are, " That it be by ballot-that it be free-that it be voluntary." If any of those qualities, much more if all of them, be wanting, the election has not the character, and, therefore, is not entitled to the name of a constitutional election. No election is known to the Constitution that is not possessed of the foregoing essential properties. Before Council ought to estab- lish this election, they ought to be sure that it is such a one as is known to the Constitution. In other words, they ought to find that it has been free and voluntary, and by ballot. This, therefore, we conceive would be the natural and proper question to lead Coun- cil to the final result of their proceedings ; for a determination of this question must naturally and necessarily determine the only re- maining one-whether the election ought to be set aside or estab- lished.

3. Because we conceive the method adopted by this resolution pre- cludes the Council from giving a clear and unambiguous vote upou the merits of the election. We are fully satisfied in our judgment, that the facts proved before us render the election unconstitutional and void. They show in our opinion, that it was neither voluntary nor free; it was not voluntary, because the orders were that the officers might grant the soldiery permission to return home after they had severally voted, and not before, and the greatest part of them voted under those orders. They were evidently under restraint. We think the restraint was illegal. and if it was so, it was duress of imprisonment, for the confinement of the person in anywise is an imprisonment, and the law so much discourages unlawful con- finement, that if a man is under duress of imprisonment, which means a compulsion by an illegal restraint of liberty until he seals a bond, or the like, he may allege the duress and avoid the extort- ed bond.

'The election was not free. When we speak of a free election, if we wish to apply a constitutional and legal sense to the epithet, we mean to comprehend under it, not only a freedom from force, but also a feedom from any undue influence whatever. Even the re- quest of a man in power, tho' made in the most humble manner,

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must always imply a threat, if denied ; a promise, if complied with. This will naturally have great influence upon elections. Let those rules be applied to the circumstances proved to have attended the formation, the writing and the distribution of the tickets; let them also be applied to the manner of giving in the tickets ; and we ap- prebend that it will undeniably appear from them that the election was not free.

Of such essential importance is the freedom of elections in every free government, that a positive regulation calculated for protecting and securing it, becomes of indispensable obligation; such is the regulation in the Constitution for voting by ballot. The true reason of it is, as we conceive, to secure elections from undue influence. It is directed that the elector shall vote by ballot, that he may have the power of concealing, if he choses to conceal, from all the world, not only the persons for whom he votes, but those also for whom he doth not vote. But the militia, as it appears from the testimony, had not this in their power. The tickets thus provided and dis- tributed by the officers or by their orders, were of one kind, called the camp tickets. A militia man had no opportunity of altering the tickets put into his hand, but in the presence of his fellow soldiers, and probably of his officers too. By taking the pen or paper into his hand, he was obliged to disclose that he meant either to alter or totally reject the ticket, silently at least, recommended to him by military superiority. Consequently to disclose, either in whole or in part, for whom he did not vote. This shews that this election can- not, according to the true reason and spirit of the regulation, be called an election by ballot. But it shews more. It shows what de- gree of freedom was meant when it was said in the Constitution " That Elections shall be free." It was a degree of freedom which the elector could not enjoy without having it in his power to con- ceal his vote, both with respect to the persons inserted and those not inserted in his. ticket. Thus, we think, it is proved unanswera- bly, that the election was not free in the sense and degree intended by the Constitution.

'These are our sentiments concerning this election, but we can- not consistently with the mode prescribed in this resolution, com- prize and express them in a vote, for though they are founded on facts, in our opinion incontestibly. proved, yet those facts are not comprehended in any one of the specific charges which Council have ordered to be considered separately, in order to determine the operation of each. We, therefore, consider ourselves as precluded from a full and fair vote on the merits of this election. For those reasons only, and no other, we must in justice to our consciences, take the liberty of declining to vote on the question as it stands ; and therefore, we will retire.

JAMES EWING, DORSEY PENTECOAST, JOHN VAN CAMPEN & JOHN BYERS.

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Moved by Doctor Gardner.

WHEREAS, Several members of this Board, wishing to avail themselves of every legal and Constitutional means, to assist their judgments upon such law points às have arisen out of those specific charges which have been deemed to be supported by evidence re- specting the late election of a Councillor for the county of Phila- delphia, have obtained an opinion under the hand of the Honorable the Chief Justice and the Honorable George Bryan, Esquire, one of the Puisne Judges upon the said points ; therefore,

Moved, That the opinion of the Judges upon such of the specific charges as have been deemed to be supported by evidence, be en- tered on the minutes ; and the same being seconded,

The question was put, and the same was carried in the affirma- tive.

The yeas and nays upon the foregoing vote being called for, are as follows, vizt :

Yeas.

1. Mr. Vice President,

· 1. Mr. President,

2. Doctor Gardner,

2. General Ewing,

3. General Lacey,

3. Mr. Byers.

4. Mr. Levan,

4. Mr. Van Campen,

5. Mr. Pentecoast.

The charges deemed to be supported by evidence, are as follows, vizt :

6th. First part, viz : "That upon the 8th day of October a 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 held ; and before their arrival there the said tickets were delivered them by the said Colonels and by their orders."

Last part, viz : " Or of acting and judging like freemen, as of right they ought to have done."

12.' " That when Phineas Roberts, who had two sons and a son- in-law in the militia who had been ordered iuto Jersey upon duty, 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 Hanna, and another officer whose name is uuknown, for so 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, read, and tore them to pieces.

16. " That Major Bethel, Captain Ashmead, and Captain Nice, - acted as Inspectors."

5. Mr. Hayes, and

6. Mr. Piper.

Nays. .

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17. " That a large bundle of tickets was delivered by Captain Hazlet, an Inspector at Germantown, out of his box to Mr. Engle to call out, which he did, though he was not an Inspector."

18. " The election was opened after two o'clock in the afternoon."

19. " That at Wentz's many of the Inspectors did not stay till the tickets were counted ; and that Andrew Knox, Esquire, who acted in the double capacity of Deputy of the Sheriff and as a Judge of the election, also acted as Inspector, without really being such, delivered the tickets out of a box for a time, and called out the names, and then desired Jacob Linld, who was not an Inspector or under oath, to do it for him, which he did. . That Mr. Liuld said as the tickets appeared to be all camp-tickets, he might as well lump them ; and did so, without calling out the names, to the amount of upwards of seventy."

21. "Jacob Ashton, an Inspector, received a ticket from Joseph Delany, an apprentice."

22. " That at the election at Wentz's, Colonel Bitting repri- manded a man for altering his ticket and tore it."

The opinion of the Judges of the Supreme Court on the forego- . ing charges, vizt :

Answers to the questions proposed :

1. The officers of the militia violated no law by barely marching their private men under military command to the places of election within the county of which they were inhabitants, and they, or any other persons, had an undoubted right to furnish them with tickets, and to advise them to vote accordingly. The latter part of this question appears to be incomplete ; however, if the meaning is that the private men in the militia were prevented from "acting and judging like freemen," the following questions will occur : How' many were thus prevented ? By whom were they prevented ? In what manner were they prevented ? Were they restrained from voting or compelled to vote through violence or fear ?. Without these are answered, no opinion can be given to this part of the pro- posed question.

2. This charge depends upon the nature and effect of Major Hanna's and the other officer's reprimand. This is not stated. If Phineas Roberts, notwithstanding this reprimand, did speak to his. sons, no injury was received. The consequence of the reprimand is the material part; but this does not appear. Upon this state of the question we can perceive no ground for legal punishment, much less for making the election void.

3. As Major Bethel and the two Captains were employed only in depositing the tickets in the box after they had passed through the hands of the Inspectors and were read by them, there is no reason for judicial censure, nor the least foundation for vacating the election on this account. . The act of Assembly passed in 1705, directs that the election shall be conducted in the presence of the

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Sheriff, Judges and Inspectors, not that they shall personally per- form every immaterial little act relating to it.

4. We apprehend 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 passed February the 8th, 1766, he had a concurrent power with the Sheriff and Inspec- tors to read, 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- rects 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 only directory, and mentions that as 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 As- 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 depar- 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- tion.

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 an election for a whole county, upon proof of a single instance of this kind, especially if the sitting member has more than a bare ina- 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 his 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- lor. Be this as it may, it does not appear to us a sufficient ground

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for declaring an election, void, because one elector reprimanded another for altering a ticket which he had received from him, or because he re-took the ticket he had before furnished and tore it. If it should be determined otherwise, it would be in the power of any man to set aside any election, because any man may reprimand another in this way, and proceed to tear a ticket did he not ap- prove.

Upon the whole, fraud, force, or undue influence, may in some instances be sufficient reasons for declaring an election void, but no irregularity, excepting such an one as would render it uncertain whether the candidate returned had a majority of the free votes of qualified electors, (that being the substantial point,) ought in our opinion, to affect the rights of the representative or repre-" sented, especially where they had no share in it ; but in such case, the person committing the offence should be duly punished, accor- ding to the nature of it. The true distinction is between the public and private wrong, the generality and particularity of the injury.

PHILADELPHIA, March 12, 1782. S

THOMAS M'KEAN, GEORGE BRYAN.

Moved, That the Board do now proceed to consider separately such of the specific charges as have been deemed to be supported by evidence, in order to determine how far each of them ought or ought not to invalidate the election of a Councillor for the county of Philadelphia ; and the motion being seconded,

The question was put and carried in the affirmative.

[See the dissent of Messrs. Ewing, Pentecoast and Van Cam- pen, autea. 3, pa. 96, &c.]

The first part of the sixth charge being read,

'The question was put, does this part of the said election ? and carried in the negative.

Hereupon, Mr. Ewing and Mr. Byers declared they would not vote upon any question relating to the election, upon the ground now determined, and accordingly they withdrew immediately.

Mr. Pentecoast and Mr. Van Campen likewise retired.

The third part of the said sixth charge being read and consi- dered,

The question was put, does this part of the sixth charge tend to invalidate the election ? and carried in the negative.

The twelfth charge being read and considered,

The question was put, does this charge tend to invalidate the election ? and carried in the negative unanimously.

The sixteenth charge was read, and

The question being put, does this charge tend to invalidate the election ? was carried in the negative.

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The seventeenth charge was read, and the question being put, does this charge tend. to invalidate the election ? was carried in the negative unanimously.

The eighteenth charge being read, and the resolution of Coun- cil that the election was opened after two o'clock, the question was 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 Coun- cil to be well-founded considered, and the question being put, 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 for the county of Philadelphia be set aside, and a new election or- 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. Bayard,

Mr. Piper,

Mr. Hayes, and

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 hun- dred pounds specie, for purchasing ammunition, &c., for the de- fence of the frontiers of this State.

An order was drawn in favor of the said Commissary, for the sum of fifty pounds specie, in part of his pay as Commissary, for which he is to account.

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SUPREME EXECUTIVE COUNCIL.

The Honorable John Piper, Esquire, presented the following ac- count 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 76

Mileage 190 miles @ s6, -

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 shillings and six pence specie, amount of the above account.

A petition from Philip Frick, William Hoofman and Andrew Gibson, convicted of retailing spirituous liquors at a court of Gene- ral Quarter Sessions held for the county of Northumberland, with- out 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.

A Mr. Gardner, Mr. Bayard,

Mr. Ewing, Mr. Hayes, and i

Mr. Van Campen, Mr. Piper,

Mr. Pentecost.

The Board having re-considered the resolution of the twelfth in- stant, with respect to the promotions of Captains Andrew Porter and Isaac Craig to the rank of Majors in the fourth regiment of Artillery, by resolution of Congress, annexed to the line of Penn- sylvania, have

Ordered, That Captain Porter's commission as Major in the said regiment, shall bear date as of the nineteenth of April, 1781, and that Captain Craig's commission as Major in the said regiment, on the next day after the death of Major Eustace, anything in the said order notwithstanding.

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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, a. 25s per day, £ 2 10. 0 .

From the twenty-second of January to the sixteenth of March, 1782, inclusive, 53 days, a 178 6, -

46 7 6 Mileage 79 miles, coming to Philadelphia and return- ing, a s6, -

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 :

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Colonial records of Pennsylvania, Vol. XIII, Part 20

Author: Publication date: 1838 Publisher: [Harrisburg] : By the State Number of Pages: 804

Author:
Publication date: 1838
Publisher: [Harrisburg] : By the State
Number of Pages: 804