Agreeably to the minute of the fifteenth instant, Council proceeded to an enquiry into the propriety of appointing a Health officer to supercede the present officer; whereupon, it was Resolved, That in the opinion of Council, it is not proper at this time to go into the appointment of a Health officer for the Port of Philadelphia. Resolved, That the several persons who have petitioned Council, to be appointed to the said office, in case the present officer should be removed, have leave to withdraw their petitions. The Attorney General and the Secretary and Receiver of the Land office, attended agreeably to notice, when Council proceeded to hear Joseph B. M'Kean, Esquire, the Attorney of Techarnor de Graffendriedt, relative to his claim to lands within this State, in right of a purchase from William Penn, Esquire, and some time being spent therin, the further hearing of said claimant was postponed. The Council met. PHILADELPHIA, Saturday, December 20th, 1788. PRESENT: His Excellency THOMAS MIFFLIN, Esquire, President. The Honorable GEORGE ROSS, Esquire, Vice President. An order was drawn upon the Treasurer in favor of Messieurs Wistar and Ashton, for the sum of five hundred pounds on account of their purchase of Indian goods, and to defray the contingent expences thereof, for which sum they are to be accountable. Council took into consideration the following opinion of Chief Justice M'Kean, Judge Bryan and William Bradford, Junior, Attorney General. December 9th, 1788. GENTLEMEN:-The case of Jacob Dryer, upon which you were instructed by the Supreme Evecutive Council to consult us, appears to be as follows: Jacob Dryer being attainted of Burglary, received a charter of pardon sigued by the President in Council, and under the State VOL. XV.-41. seal, reciting his attainder, and containing a condition of his leaving the United States in thirty days not to return, "that about the same time an entry was made on the minutes of Council, in the following words." In Council, November 13th, 1787. Upon the petition of the parents and friends of Jacob Dryer, now confined in the Jail of this city, under sentence of death, praying a pardon, and also a respectable recommendation, Ordered, That the said Jacob Dryer, be and he hereby is par doncd. The said Jacob Dryer having broken the condition annexed to the said charter of pardon, was afterwards arrested and brought before the Supreme Court, whereupon the record of his attainder being read, and a suggestion filed by the Attorney General, he was asked what he had to say why execution of the sentence of death should not be awarded against him, and Counsel being retained and time given to prepare an answer he shewed no cause to the Court, and execution was awarded accordingly. We understand that some doubts have arisen, concerning the effects of the said entry on the minutes of Council, whether the same does not operate as an absolute pardon, and whether Council can now legally issue a warrant for the execution of the said Jacob Dryer. We are clearly of opinion that the said entry in the minutes of Council, can have no legal operation upon the attainder of the prisoner. We conceive that no pardon of an attainder can be good, unless it be under the State seal; and that the Supreme Executive Council cannot legally exercise this prerogative in any other mode than that. It is a charter under the seal that the prisoner must plead in bar, and no entry on the minutes of Couneil can reverse or annul his attainder, if it should be made manifest to Council that a mistake crept into the charter of pardon by inserting a condition when it was intended to be absolute, this can only be rectified by granting a new pardon, and until this be granted, the party will remain attainted and liable to execution. We would farther observe upon this subject, that if a party would take advantage of a pardon granted to him by Council, the laws furnish him with an opportunity of doing this when he is brought before the Court. He may wave the benefit of it if he pleases, and if he will not plead it, and produce it for the Court to examine and determine upon, he loses the advantage of it and cannot legally avail himself of it in any other place. By the record transmitted to Council, it appears that the said Jacob Dryer had this opportunity afforded him, and that there were no legal objec tions against the award of execution. We, therefore, cannot entertain any doubt upon this point, and are of opinion that Council may legally issue a warrant for the execution of the prisoner, if they think the public good requires it. We have the honor to be, Gentlemen, your most obedient ser vants. THOMAS M'KEAN, WILLIAM BRADFORD, Jun'r. Honorable James Read, George Woods and Abraham Smith, Esq'rs. Whereupon, it was moved and seconded that Council come to the following resolution, to wit: Resolved, That a warrant be issued for the execution of Jacob Dryer, on Saturday the twenty-seventh instant. And on the question, to agree to the same, it was determined in the negative, It was then on motion, Resolved, That the said Jacob Dryer be, and he is hereby pardoned. Council resumed the consideration of the claim, which was made on the twelfth day of July last, in behalf of Techarnor de Graffendreidt, an inhabitant of the State of Virginia, by his Attorney, Joseph B. M'Kean, Esquire, to an equivalent out of the unappropriated lands vested in the Commonwealth for two grants from William Penn, Esquire, of ten thousand acres of land near the Connawaw upon the river Susquehanna, and ten thousand acres near on Indian town called Talbaholkie upon the river Schuylkill, which it is alledged were not set out and appropriated. And it appearing to Council, upon examination of the act of Assembly passed the tenth day of April, 1781, entituled "An Act for the better support of the public credit, by an immediate sale of the lands therein mentioned, and fully securing the purchasers thereof in their titles, and also for preserving the common lands appurtenant to the city of Philadelphia and other towns in this State, from unwarrantable encroachment," that the said claim was made three months after the expiration of the time limitted for filing claims under the said act, and that the claimant is not within the meaning of the provisoes contained in the tenth section thereof; therfore, Resolved, That the said Techarnor de Graffendreidt, is barred by the said act from prosecuting his claim before this Board. An order was drawn upon the Treasurer in favor of the Honorable James Read, for ninety pounds, in full for his attendance in Council, from August the twenty-third untill December the twentieth, 1788, inclusively. Upon the second reading of the letter from Andrew Ellicott, Esquire, relative to a survey of the trangular piece of Country on Lake Erie, lately ceded to this State by the United States, Ordered, That the same be referred to the Vice President, Colonel Smith, Mr. Dennisen, Colonel Miles and Mr. Cannon. The Council met. PHILADELPHIA, Monday, December 22nd, 1788. PRESENT: His Excellency THOMAS MIFFLIN, Esquire, President. The following orders were drawn upon the Treasurer, vizt: In favor of the Honorable James R. Read, Esquire, for one hundred pounds, on account of his pay as a delegate from this State to Congress, for which sum he is to account. And in favor of the Honorable Jacob Rush, Esquire, for one hundred and fifty pounds, being one quarter's salary due to him as a Judge of the Supreme Court, ending the eighteenth instant. Upon application of several merchants of this city, that Council would be pleased to transmit under the authority of the State, to Mr. Carmichael, resident at the Court of Madrid, a memorial which they have addressed to his Most Catholic Majesty, relative to a quantity of flour which was shipp'd to the Havanna, Ordered, That a letter from the President to Mr. Carmichael, recommending the said memorial to his particular attention, be written. The Council met. PHILADELPHIA, Tuesday, December 23d, 1788. PRESENT: His Excellency THOMAS MIFFLIN, Esquire, President. The Honorable GEORGE ROSS, Esquire, Vice President. The following orders were drawn upon the Treasurer, vizt: In favor of the Honorable Richard Willing, Esquire, for fortyfive pounds, in full for his attendance in Council, from the seven teenth of October until the twenty-third of December, 1788, inclusively, deducting eight days absence, In favor of the Honorable John Cannon, Esquire, for forty-seven pounds fifteen shillings, in full of his account for his attendance in Council until the twenty-third of this month, inclusively, and for mileage coming to Philadelphia and returning home in September last and coming in November and returning at this time. And in favor of the Honorable Nathan Dennison, Esquire, for twenty-four pounds, in full for his attendance in Council until the twenty-seventh of December, 1788, inclusively. Council being informed that Captain James McLean, who commands the Invalids, is prevented from attending to the duties of that command, Resolved, That Colonel Lewis Nichola be and he is hereby appointed Commandant of the Corps of Invalids, in the place of Captain James McLean, who cannot attend to the duties of the appointment, and that he be supplied with the usual rations. On motion, Resolved, That the Secretary employ two proper persons to ride to the counties of Washington, Westmoreland, Fayette, Bedford, Huntington, Northumberland, Cumberland, Luzerne, Franklin and Dauphine, to bring to Council from those counties the returns of Electors for the choice of President and Vice President of the United States. and that he assign to the said expresses their proper counties, give them the necessary instructions, and direct the said expresses to set off on Monday next. The Council met. PHILADELPHIA, Wednesday, December 24th. PRESENT: The Honorable GEORGE ROSS, Esquire, Vice President. Samuel Miles, James Read, John Cannon, and Esquires. Abraham Smith, An order of the Orphans' Court of Northumberland county in favor of Mary Nees, widow of Peter Nees, deceased, late private of the militia of that county, granting to her the sum of eighty-four pounds for the support of herself and children, was laid before Council, and the same being read, the further consideration thereof postponed until Saturday next. |