USA > Pennsylvania > Colonial records of Pennsylvania, Vol. XIV > Part 32
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Charles Biddle, John Boyd, John Neville, George Wall, Jun'r.
John Whitehill,
An order was drawn upon the Treasurer in favor of the Honorable John McDowell, Esquire, for the sum of seven pounds five shillings specie, for attendance in Council to this day, inclusively, and mile- age going home.
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SUPREME EXECUTIVE COUNCIL.
An order as aforesaid was drawn in favor of Jonathan Hoge, Esquire, for the sum of twenty-nine pounds fifteen shillings specie, in full for attendance as afores'd.
And one other order in favor of the Honorable George Wall, Junior, Esquire, for the sum of forty-seven pounds seventeen shil- lings specie, in full for his attendance in Council untill the thirty- first day of March, 1785.
Agreeably to the order of Saturday, Council proceeded to con- sider the case of Aaron Doan; and on motion of Mr. McLene, seconded by Mr. Biddle, that the opinion of Council may be taken " whether they will agree to pardon Aaron Doan," the previous question was called for by Mr. McDowell, and Mr. Irvine, and the votes being taken, it was carried in the affirmative.
The yeas and nays being called for by Mr. McLene, are as follows :
YEAS-John Dickinson, James Irvine, John Boyd, John Mc- Dowell, Jonathan Hoge, John Neville, John Whitehill.
NAYS-Charles Biddle, James McLene, George Wall, Junior.
A question was then put whether a warrant can be legally issued for putting the said Aaron Doan to death upon his out-lawry, and the votes being taken, it was carried in the negative.
The yeas and nays being required as before, are as follows : YEAS-George Wall, Junior, James McLene, Charles Biddle.
NAYS-John Dickinson, James Irvine, John Boyd, John Mc- Dowell, Jonathan Hoge, John Neville, John Whitehill.
The Council met.
PHILADELPHIA, Tuesday, March 29th, 1785.
PRESENT :
His Excellency JOHN DICKINSON, Esquire, President.
The Honorable JAMES IRVINE, Esquire, Vice President.
John McDowell, James McLene,
Charles Biddle, John Neville, John Whitehill,
John Boyd, and
George Wall, Jun'r,
Esquires.
An order was drawn upon the Treasurer for the sum of fifty pounds specie, in favor of Captain Thomas Houston, being a part of the monies due to him, agreeably to the Comptroller General's report, for recruiting in 1776 and 1777, to be paid out of the public monies in the hands of Samuel Penrose, due for rent of State, late Province Island.
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The following draft of a message to the General Assembly was read and adopted :
A message from the President and the Supreme Executive Council to the General Assembly.
GENTLEMEN :- Having taken into our most serious consideration a transcript of the record of the conviction and attainder of Aaron Doan by out-lawry, transmitted to us by the Honorable the Judges of the Supreme Court, the capias and return, his two petitions, the answer of the Judges to a letter from us, and the consequences to citizens of this Commonwealth of establishing a precedent in a capital case altogether new, we are of opinion that a warrant cannot legally be issued by us for putting the said Aaron Doan to death upon the said out-lawry, for several reasons, the principal of which are contained in the paper herewith delivered.
As it is doubted whether there is any court from which a writ of error can issue, in this case, we think it proper to lay the whole proceedings before your honorable House, and leave it to your de- termination, whether it is advisable to reverse the outlawry, in order that the party, according to his prayer, may have a trial by jury, for the offence with which he is charged.
JOHN DICKINSON.
Council Chamber, Philadelphia, March 29th, 1785.
REASONS.
First-The outlawry of the said Aaron Doan being founded on the "Act for the advancement of justice and more certain admin- 'istration thereof," passed May the thirty-first, 1718, the said act ought to have been strictly observed, and its directions pursued with an " exceedingly nice and circumstantial"' exactness, espe- cially as the penalty is so great, and the precedent may be so dan- gerous. 4 Blackstone, 315. (a.)
By Magna Charta, no man can be outlawed, but according to the law of the land. 1 Blackstone, 142.
But the proceedings aforesaid vary from the said act in these instances :
First-It is not returned by the Sheriff that the party was called on by proclamation "to answer to the Commonwealth," as aç- cording to the said act and copias ought to have been done. ·
(a) It seems generally agreed that, IN FAVOR OF LIFE, an outlawry of treason or felony might be avoided, by plea that the defendant was in prison, or in the King's service, beyond sea, &c., at the time of the out- lawry pronounced against. But I take it to be generally agreed, that no outlawry for any other crime, (against a party rightly described) can be avoided by the plea of any matter of fact whatsoever. 2nd Hawkins's, PI. 460.
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2ndly .- It does not appear that the capias was delivered to the Sheriff three months before the return thereof, as the said act re- quires; it not being even returned that the proclamations were made by virtue of the capias.
3rdly .- The said act and the capias order the Sheriff to make. proclamation, &c. ; but the Sheriff returns that he caused public proclamation to be made, &c.
It does not appear that the Sheriff was present when the procla- mations were made. In many cases of a much inferior nature, the Sheriff's presence is indispensably necessary. 4 Bac. 441.
4thly .- The act directs the proclamation in every Court of Quarter Sessions, &c ; but the Sheriff returns that it was made at two several Courts of Quarter Sessions, &c.
5thly .- The act says proclamation shall be made for the party " to appear before the said Justices, at the said Supreme Court ;" but the Sheriff returns that the party was called upon by procla- mation to appear at the Supreme Court.
Secondly. The Sheriff returns upon the capias that the party was called upon " to appear at the day and time within specified,"* which might be done by general reference in the proclamation to the writ, without expressly mentioning the day and year when the party ought to appear. The return ought expressly to mention the day and year ; and no intendment, however strong, is sufficient to supply the defect. 2 Hales, P. C., 203, 460, 94; 3 Bac. 767; 4 Burr, 2559.+
Where life depends upon proclamations, there cannot be too much exactness required, in order that the party may have due notice. 1
Thirdly. The Sheriff returns that he caused public proclamation. to be made at two several Courts of General Sessions of the Peace, held at Newton, for the county of Bucks, &ca.
This return is not sufficient. It was solemnly determined on repeated argument, and the most serious consideration by all the Judges in Wilkes's case, to which the Honorable the Judges of
The return (in the case of John Wilkes, Esquire) says-"I have caused public proclamation to be made, in manner and form as within I am com- manded." This is certainly too loose: The proclamations are not sufficiently set out for the court to judge whether they were properly made or not. I thought this error "fatal."-Lord Mansfield in Wilkes's case. And the error would have been "fatal," if proclamations had been necessary in that case ; but from the peculiar circumstances of it, they were not neces- sary. In Doan's case they are acknowledged to have been necessary.
¡If an outlawry be returned that the party was exacted (called) at three several times in the 10th year of James, and that he was a fourth time ex- acted on the twenty-fifth day of February, and did not appear, without men- tioning any year, and was a fifth time exacted such a day in March, in the tenth year of James, altho' it may be intended that he was a fourth time exacted in the tenth year of James, "yet the outlawry shall not be good by intendment." Hale and Roll, in the pages above cited.
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the Supreme Court refer in their answer, that "from the PRECE- DENTS, it appears that a series of judgments have required a technical form of words in the description of the County Court, at which an outlaw is exacted ; that after the words "at my County Court," should be added the NAME of the County, and after the word "held" should be added the county of-(naming it. ) In the return in the present case, the name of the county is not mentioned before the word "held." Lord Mansfield quoted several cases in which out- lawries had been reversed for this defect; and one of them was an outlaw for Murder.
Upon the authority of these precedents, Mr. Wilkes's outlawry was reversed*, and they, together with the very remarkable judg- ment in his case, unite in proving the present outlawry to be erroneous, unless it is easier to take away the life of a citizen by outlawry in this State, than to inflict a lighter punishment by outlawry on a subject in England. 4 Burr 2563, &ca ..
If precedents establish a form of words with so much force, tho' the Judges were clearly of opinion that they begun against law, reason and common sense, and that there was not a colour originally to hold these words to be necessary, and where the penalty is so far inferior, how much more ought they to be regard- ed, and how religiously ought the express injunctions of a law wisely and benevolently intended to guard against loose proceed- ings, to be revered when those proceedings are to condemn to death ?
So critical have the Judges in England been with respect to outlawries, that we cannot find that the use of figures to denote time as in the return in the present case, has ever been allowed, and the difference of a single letter, as in this return, the writing " Doane" for "Doan," has been held a good objection for reversal. Style 182 334 ; Cro. Elizi 104; Cro. Ja. 576; 3 Bac. 767.
Fourthly. It appears very doubtful whether the issuing a war- rant for the execution of Aaron Doan would be a regular proceed- ure, for these considerations :
1st. Because there never has been "an instance in Pennsylvania of a person being executed upon outlawry by Judicial proceedings alone."
2ndly. Because if the act for the advancement of justice, &ca., is construed to mean the executing of a person thereon attainted
*Lord Mansfield concluded his argument with saying, "I beg to be under- stood that I ground my opinion singly on the authority of the cases adjudged, which as they are on the favorable side in a criminal case highly penal, I think ought not to be departed from ; and, therefore, I am bound to say, that for want of these technical words, the outlawry ought to be reversed." The other three Judges spoke seriatem, and concurred with the Chief Jus- tice. 4 Burrows, 2565. In the same volume of Burrows' reports, page 2550, " If the Kings Council certify to him that there is error, he will not deny a writ of error." It is then from Justice.
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SUPREME EXECUTIVE COUNCIL.
by outlawry, it would be more sanguinary than the law then was in England, for the reasons given in the letter of Council to the Judges.
3rdly. Because in such a mode of proceeding, life is made to de- pend not only on a supposition of the party's being guilty of the crime with which he is charged, but also on a supposition of his being exactly informed of the fact (the making of the proclama- tions) to which he is not privy, and of which he may be totally ignorant. Thus this mode of proceeding aims only at the destruc- tion of individuals, and, therefore, opposes .that mild system of jurisprudence which the Constitution of this Commonwealth has adopted from principles that lead to a happy combination of hu- manity with legislation.
4thly. Because it would weaken that security which the Consti- tution of the State appears to have intended for its citizens, being a dangerous mode of proceeding that, if admitted, ought to be regu- lated by the most exact cautions, as a precedent of this kind established in time of tranquility, may become a very destructive engine of policy in times less peaceful.
5thly. Because it is unnecessary, as the penalties expressly men- tioned in the act-" forfeiture of lands and tenements, goods and chattles "-might be judged by the Legislature a sufficient punish- ment, unless the guilt be proved in the usual manner.
6thly. Because the act in several foregoing parts of it, having mentioned many capital offences, and the punishments to be inflict- ed on the criminals who committed them, the words which have been quoted in the answer of the Judges, as extending the penalty in outlawries beyond forfeiture of lands and tenements, goods and chattels, may receive a reasonable construction by being restrained to such criminals as had been mentioned in the act before it takes notice of outlawries, and also should be prosecuted and tried ; the whole clause taken together strongly implying an exclusion of out- laws as having escaped from prosecution and trial, and such con- struction is recommended, according to the excellent and well known maxim of law, by its operating in favor of life.
The words of the act for the advancement of justice, &ca., sec- tion the 17th, relating to outlawries, upon which this outlawry is founded, are these : " And be it further enacted by the authority aforesaid, that if any person or persons who have been indicted or appealed, or hereafter shall be indicted or appealed, for any of the said crimes, did not, or will not appear to answer such indictment or appeal, the Justices before whom the same hath been, or shall be taken, shall award a writ called capias, against every such offender, directed to the Sheriff of the county where the party indicted or appealed are by such indictment or appeal supposed to be conver- sant, or in habit returnable before the justices of that Court where such party is, or shall be so indicted or appealed at the Supreme or Provincial Court next after the taking of such indictment or ap-
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peal, by which writ of capias the same Sheriff shall be command- ed to take body of him or them so indicted or appealed, if he or they can be found in his bailiwick ; and if he or they cannot be found, the Sheriff shall make proclamation in every Court of Quar- ter Sessions which shall be held for the said county where the said party indicted or appealed is supposed to inhabit or be conversant, as aforesaid. That he or they being so indicted or appealed, shall appear before the said Justices, at the said Supreme Court, on the day of the return of the said writ of capias, to answer our Lord the King, or to the party of the treason, felony, or trespass, whereof he or they are so indicted or appealed, which writ shall be delivered to the said Sheriff or Sheriffs, three months before the return there- of; after which writ of capias so served and returned, if he who is so indicted or appealed come not at the said day of return of the said capias, and yield his body to the Sheriff, he shall be by the Justices of the said Supreme Court, pronounced outlawed, and attainted of the crime whereof he is so indicted or appealed as aforesaid,* and from that time shall forfeit and lose all his lands and tenements, goods and chattles ; WHICH FORFEITURE, and all other forfeitures expressed or implied by the said judgments, to be given upon the said capital offences mentioned in this act, after such criminal's just debts and reasonable charges of their maintenance in prison are deducted, shall go one half to the Governor for the time being, towards support of this Government, and for defraying the charges of prosecution, trial, and execution of such criminals ; and the other half, or residue, shall go to such criminal's wife and children, equally ; but if he leaves no wife or children, then to the next of his kindred, not descending lower than the second degree, to be claimed within three years after the death of such criminals, otherwise the same shall go to the Governor, as aforesaid, any law or usage to the contrary notwithstanding."
From the foregoing words, it appears that the forfeiture of lands and tenements, goods and chattles, takes place on outlawry in the case of " TRESPASS," as well as on outlawry in the case of "treason or felony." If, then, the words, " WHICH FORFEITURE," are to be coupled with the word execution, the construction will extend too far, and reach to outlawry in cases of trespass, which cannot be ad- mitted. Of consequence, the words, WHICH FORFEITURE, relating to trespass as well as to treason and felony, must have been in- tended by the Legislature to be construed distinctly throughout the following part of the clause from the words OTHER forfeitures, expressed or implied by the said judgments, to be given upon the said capital offences mentioned in this act, &ca., and to go, &ca., towards support of government, and for defraying the charges of prosecution, trial and EXECUTION of such criminals, &ca .; for there
* In the record of this law there is no stop between the word "aforesaid" and the word "and."
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was no EXECUTION for outlawry in the case of trespass, and yet the same form of words appropriates the forfeiture in the same manner on outlawries in the cases of treason, felony or trespass. The words, said capital cases, make no separation between "treason, trespass or felony;" as to outlawries. These words refer plainly to OTHER forfeitures and judgments" than those on outlawry, which OTHER forfeitures and judgments had been before mentioned in the act, in several sections preceding that which treats of outlawry. The "OTHER forfeitures" referred to, actually depend on the offences being capital. The "forfeiture on outlawry" does not. Therefore, the words, " WHICH FORFEITURE," and the word "EXECUTION," can- not be relied on to prove that the Legislature meant that the pen- alty on outlawry, in cases of felony, should exceed that expressly . mentioned, to wit : " Forfeiture of lands and tenements, goods and chattles." If that was the meaning of the Legislature, it is too obscurely declared to take away LIFE. It may also be concluded, reasonably, that if such had been their intention, they would have directed in what county the party is to be executed. Where the offence is charged to be committed, the indictment is found, and the proclamations are made in one county, and he is outlawed in another, which is the present case.
The Council met.
PHILADELPHIA, Wednesday, March 30th, 1785.
PRESENT :
His Excellency JOHN DICKINSON, Esquire, President. The Honorable JAMES IRVINE, Esquire, Vice President.
Stephen Balliet, John Neville,
John Whitehill, Charles Biddle, and
Esquires.
John Boyd, James McLene,
Jonathan Hoge,
The petition of William Pollard was read.
The petition of James Mease, inclosing his accounts for money loaned to the State, and for his attendance in the Council of Safety in 1775 and 1776-128 days-and praying payment thereof, was read.
James Snodgrass, Timothy Taylor and James Gregg, attended in Council, and were heard upon their several claims to the reward of one hundred pounds offered by Council for apprehending and se- curing Solomon Vickars, lately convicted of a robbery of the Trea- sury of the county of Bucks; when an order was taken that the sum of eighty pounds be given to James Snodgrass and John Rice,
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and that the remaining twenty pounds be given to Timothy Taylor and James Gregg.
Ordered, That Caleb Davis, Esquire, Prothonotary of the county of Chester, be directed to attend Council forthwith.
Ordered, That David Kennedy, Esquire, be desired to deliver to John Lukens, Esquire, Surveyor General, all the papers re- ceived from the State of Virginia relative to claims made by per- sons under the authority of that State, who, by the determination of the south-western limits, have now fallen under the jurisdiction of this Commonwealth, and that Mr. Kennedy take a receipt de- scriptive of each paper.
The Council met.
PHILADELPHIA, Thursday, March 31st, 1785.
PRESENT :
His Excellency JOHN DICKINSON, Esquire, President. The Honorable JAMES IRVINE, Esquire, Vice President.
John Boyd, James McLene,
Stephen Balliet,
John Neville, and
Esquires.
Jonathan Hoge, Charles Biddle,
John Whitehill,
The Comptroller General's report upon the accounts of Elijah Hunt, private of Captain Robinson's company, and late a prisoner with the Indians, was read and approved, and an order drawn in his favor for four months' pay. Certificates to issue for the re- mainder. .
The Comptroller General's reports upon the accounts of John Neely, Serjeant, and George Bailey, private of Captain Thomas Kemplin's Ranging company, from 1779 to 1782, were read and approved.
The Comptroller General's reports upon the accounts of Arthur St. Clair, City Auctioneer, his quarterly account of monies due to the State upon the sales made by him, and of Doctor James David- son, for medicine, attendance, &ca., for two men of Major James Moore's late State corps, were read and approved, and an order drawn in favor of the latter for the sum of four pounds fifteen shil- lings.
The following orders were drawn upon the Treasurer, vizt :
In favor of the Honorable James McLene, Esquire, for the sum of fifty-nine pounds twelve shillings and six pence specie, due to him for attendance at this Board until the first day of April, 1785, and his mileage.
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SUPREME EXECUTIVE COUNCIL.
In favor of the Honorable Stephen Balliet, Esquire, for the sum of twenty-seven pounds two shillings and six pence, for his attend- ance as Councillor untill this day inclusively.
In favor of Frederick Sneider, for the sum of fifteen pounds ten shillings, as Door-keeper untill this day inclusively.
In favor of Griffith Owen, for the sum of twenty pounds specie, for keeping the State House clock in repair for one year, ending the fourth instant.
The Sheriff of the city and county of Philadelphia attending in Council, agreeably to the notice of yesterday, the President de- clared the sense of this Board with respect to the vigilance which he ought to give to the securing the prisoners (generally) under his care, and the extraordinary attention with which it became him to guard against the escape of Charles Julian De Longchamps and Aaron Doan.
An order was drawn upon the Treasurer in favor of James Pear- son, for the sum of two hundred pounds specie towards repairing the State House; for which sum he is to account, according to reso- lutions of Assembly dated the twenty-second of September, 1784, and twenty-second day of February, 1785.
The Council met.
PHILADELPHIA, Friday, April 1st, 1785.
PRESENT :
His Excellency JOHN DICKINSON, Esquire, President.
The Honorable JAMES IRVINE, Esquire, Vice President.
John Boyd, James McLene,
Stephen Balliet, John Neville, and
Jonathan Hoge, Charles Biddle, ـسات
Esquires.
John Whitehill,
The accounts of William Holliday, Paymaster of the Bedford county militia, were read and approved.
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The accounts of George Smith, Esquire, late Agent of Confisca- ted Estates in the county of Philadelphia, read and approved on the twenty-fourth of November, 1784, was again read, and an or- der taken that the Treasurer be directed to pay him the sum of fifteen pounds fourteen shillings and nine pence State money, ac- cording to resolution of the General Assembly dated the sixteenth day of December, 1784.
The petition of William Hooker Smith, with the several papers accompanying it, was referred to the Comptroller General, who was desired to report how far the pretensions of Doctor Smith are founded upon the resolves of Congress and laws of the State.
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A letter from Colonel Johnston was read, and referred to the Board of Property.
An order was drawn upon the Treasurer in favor of Colonel James Mercer, for the sum of fifty-nine pounds and four pence specie, in full for the services of the said Colonel Mercer and others, militia officers of Lancaster county, in Colonel Stewart's battalion, in the years 1777, 1778 and 1779, agreeably to the Comptroller General's report, to be paid out of the militia fines of Lancaster county arising from the delinquencies which took place during those years.
The Council met.
PHILADELPHIA, Saturday, April 2nd, 1785.
PRESENT :
His Excellency JOHN DICKINSON, Esquire, President. The Honorable JAMES IRVINE, Esquire, Vice President.
John Boyd, John Whitehill,
John M'Dowell, James McLene,
Stephen Balliot, John Neville, and
Jonathan Hoge, Charles Biddle.
Council taking into consideration the appointment of a Presi- dent of the Courts of Common Pleas and General Quarter Ses- sions of the Peace for the county of Dauphine, Timothy Green, Esquire, was appointed.
Agreeably to the order of yesterday, the Comptroller General re- ported upon the claims of William Hooker Smith, stating that agreeably to the laws of the State the depreciation of the pay of Doctor Smith cannot be allowed, but if provided for at all, it is by act of Assembly of the first day of October, 1781, upon which after investigating the act referred to, Council are of opinion that the claims of the said William Hooker Smith cannot be admitted.
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