MONDAY, the 27th November.

THE paper entitled, A general sketch of charges to be exhibited against Francis Hopkinson, Esq Judge of the Admiralty; received the 22d instant, and the seve­ral depositions, &c. accompanying the same, were read the second time, and referred to a committee of three: the gentlemen appointed were Mr. Campbell, Mr. J. Smith, and Mr. Gallraith, who are directed to request a conference with the Supreme Executive Council there­on.

THURSDAY, November 30.

A LETTER from the Honorable Francis Hopkinson, Esq Judge of the Court of Admiralty of this State, was read, requesting to be furnished with a copy of the charges exhibited against him on the 22d instant: Or­dered that the clerk furnish Mr. Hopkinson with a copy of the charges aforesaid.

Mr. Hopkinson received the following letter that even­ing.—

FRIDAY, December 1.

A MEMORIAL from Francis Hopkinson, Esq Judge of the Admiralty of this state, was read, staring, that as certain charges have been exhibited against him for misconduct in his office, he therefore prays that he may not be suffered to lie long under censure, but that a hearing or a trial in the manner the House may judge most eligible, may be directed as soon as possible.

[Page 6] Ordered, That it be referred to the committee ap­pointed the 27th ult. to take into consideration the charges exhibited against him, &c.

The committee appointed to confer with the Supreme Executive Council on the charges exhibited against Francis Hopkinson, Esq Judge of the court of Admi­ralty of this state, reported their performance of that service, &c.

Whereupon,

Ordered, That the House will resolve itself into a committee of the whole House, on Monday next, at four o'clock in the afternoon, to take into consideration the charges aforesaid.

Ordered, That the parties be directed to attend at the time aforesaid, in the Assembly room, with their respective evidences, when they will be heard on the charges aforesaid.

MONDAY, December 4.

ON motion,

Resolved, That the House will to-morrow re-consider the order of Friday last, assigning this afternoon for the consideration of the charges against Francis Hop­kinson, Esq Judge of the Admiralty, &c.

TUESDAY, December 5.

UPON a re-consideration of the order of Friday last, relative to the consideration of certain charges exhibit­ed against Francis Hopkinson, Esq Judge of the Court of Admiralty of this State, for mal-administration in his office, it was,

[Page 7] Resolved, That the witnesses in support of the char­ges aforesaid, be heard before the House to-morrow morning at eleven o'clock, the order aforesaid to the con­trary notwithstanding.

Ordered, That the Clerk give notice to the witnesses to attend the House at the time, and for the purpose above directed.

Same day Mr. Hopkinson received the following let­ter.—

WEDNESDAY, December 6.

THE order of the day was called for and read.

The House agreeably thereto, proceeded to hear the evidence in support of certain charges exhibited against Francis Hopkinson, Esq Judge of the Court of Admi­ralty of this State, for mal-administration in his office.

On motion,

Ordered, That the doors be shut during the examin­ation of witnesses on the charges aforesaid,

Mr. Hopkinson appearing in the House, acknowledged the papers marked A, and No. 12, to be his hand-writ­ing: They proceeded to hear the witnesses and to read the depositions accordingly.

[Page 8]The Judge of Admiralty's Memorial against the Marshal. Read in Assembly 22d November, 1780.

The paper marked Z, is an order from the Judge to sell and distribute the brig Gloucester and cargo, dated the 30th August, 1780, under his hand and seal, and directed to the Marshal. Inclosed is a bill of costs in the case of the Recovery, amounting to £.34:8:0 spe­cie, multiplied by 40, as the rate of depreciation for paper-money at that period. Omitted here as immate­rial.

William Lewis being duly affirmed, saith, That se­veral months before the removal of the Marshal of the Admiralty of Pennsylvania from his office, Mr. Hop­kinson, Judge of the said court mentioned to this affir­mant, some disputes which had arisen between them, and that there was one matter which perhaps the Mar­shal might attempt to take advantage of, which was, that he had demanded a suit of cloaths for the appoint­ment of Mr. Blair M'Clenachan, agent for the unre­presented shares of seamen—that the truth of the matter was, he had proposed or intended appointing him agent; but as it was a very lucrative office, which would put large sums of money into his pocket, and as he the Judge was empowered by law to appoint whom he pleased, and as the appointment was discretionary with him, he did not see why he should give Mr. M'Clena­chan such an appointment without some compliment in return; that he thought a suit of cloaths but reasonable, and had signified that he would appoint him, if he had a suit of cloaths, that some time elapsed without this being attended to, or any assurance given of the said suit of cloaths, and therefore he had appointed others.

Mr. Sergeant sworn,—doth depose and say, that he knows the Judge charged the Marshal before Council for selling prizes before condemnation, and without or­der, that he (Dep.) had formerly frequently applied to have orders for the sale of vessels before condemnation and procured them—but under the present law, the [Page 17] Judge refused to give any orders but referred him to the Marshal, implying that he (Judge) would not take any notice thereof if made. That he (Dep.) did not think that such application was wicked or unjust.

Acknowledges the paper No. 11 to be his, and understands the sale of the Albion's cargo was stopped on that account.

B. M'Clenachan being sworn in support of the first charge, deposeth and saith, that he understood from Mr. M. C. that he would be appointed an Agent for certain unrepresented shares, but that he never soli­cited the appointment and never heard any thing res­pecting a present of a suit of cloaths. That he had advanced considerable sums of money to persons own­ing unrepresented shares, and settled the accounts with M. and F. the agents appointed by the Judge.

In support of the 2d.

That on the proposal of Mr. Miller he consented to make a present of a cask of wine to the Judge afore­said.

That the order for delivering the cask must have come from M. C. Judge never applied for it. That he did not intend the said wine as a bribe, or to influ­ence the Judge in an undue manner. That the Judge ever conducted himself in an upright manner to the best of Dep. knowledge—always found Judge in his duty, and thought rather too severe—signed a paper request­ing the indulgence of the sale of the Charlotte—no pre­sent, nor bribe given for the indulgence.

In support of the 3d.

That he with others petitioned as he thinks for the sale of the Charlotte before condemnation, being suited for a privateer.

Andrew Robeson sworn saith, that he is Register of the Court of Admiralty. That about the time that the Marshal made return that certain shares of seamen be­longing [Page 18] to the privateer Holker were unrepresented, the Judge mentioned his design to appoint such agents.

The Judge then informed the Dep. in the course of conversation, that the Marshal shortly after applied to be agent—To which the Judge objected, as he (M.) was an officer of the Court, &c.—Marshal urged it on the score of friendship, &c. but the Judge still reject­ed his the M's application. The matter laid so some time, when Ma. told Judge that it would answer as well to appoint M'C. such agent. Judge consented to appoint M'C. agent. That he the said Judge, after­wards seeing M'C. and he M'C. saying nothing on the subject, the Judge thought for several reasons, it would be best to appoint some one else such agent—for if such things were not worth asking for, they were not receiving.

On question.

Dept. in course of conversation heard the Judge say that Gover. Morris had declared that his (G. M.) father used to receive presents, and refused to proceed against Act of Parliament without; this was introduced as mere matter of chit-chat. After above conversation some time, Judge informed Dep. that M. and F. were appointed the agents aforesaid, and desired him to prepare bonds ac­cordingly.

Dep. heard no more till the M's hearing before Coun­cil, when Marshal mentioned the substance of the first charge. Judge told Dep. on conversing with him on the subject, that M. agreed with him that there would be no impropriety in receiving a suit of cloaths for the ex­ercise of a discretionary, and not a judicial power, &c.— But that afterwards the Judge told the M. that M'C's deportment and situation was such that we would not appoint him the agent aforesaid. And he the Judge directed the M. not to mention the suit of cloaths, as he now viewed it rather in a different light. The Judge told him that M'C. and Miller had in his absence had sent him (the Judge) a cask of wine, and never knew any thing of it until Mrs. Hopkinson had informed him.

[Page 19] 2d charge.

M. told Dep. that Judge had received a present as stated in 2d charge—that Judge knew nothing of it till delivery, and then imagined it was a mistake. Glou­cester's trial was tried after 14 days notice, the cargo was wine, he shewed from his minutes that the practice in this instance is not unusual, &c.

3d charge.

That in some cases of armed vessels, orders issued for appraisement, &c. that in the case of the Charlotte, the Marshal advertised for sale and sold previous to con­demnation, but on the day the trial was to have been, which was deferred by the neglect of the owners to pro­cure proper testimony, the Judge attended to forbid the sale, but too late.

She was condemned 27th October, and sold 2d Sep­tember before.

4th charge.

In the case of the Albion, a writ of ap— issued previ­ous to the order of sale, under a persuasion that the cargo was perishable in its nature and much wanted. But the said order for sale was contradicted on the re­port of certain inspectors that it was not in danger, &c.

Thinks the Judge to be a person of great integrity.

Miles Filborne being duly affirmed, said, that he was one of the inspectors of the cargo of the Charlotte; and when they made their report, that the cargo was in a perishing condition, some of the inspectors observed that it was a pity the ship should be detained with forms, as she would be a good privateer, &c.—The Judge re­plied that she was so clearly a prize, that some of the forms might be dispensed with to expedite her con­demnation and sale.

Dep. was one of the inspectors of the Albion's cargo.

William Heysham being sworn, deposeth and saith, that he was one of three to inspect the cargo of the ship Charlotte—they (the inspectors) waited on the Judge to [Page 20] report, one of them observed to the Judge that the ship was a good fast failing vessel, and that several of the owners had expressed their desire that she might be con­demned as soon as possible, and that they intended to buy and fit her out as a privateer.

The Judge answered it was a pity that such a ship should be delayed. It would be serving the public to indulge them the owners, and that she should be con­demned as soon as possible—but it could not be done without public advertisement, and this is Saturday and it cannot be done till Tuesday, but I will grant every indulgence in my power, where the matter is clear.

Dep. was one of the inspectors of the cargo of the Albion, and they reported it well conditioned and in good order.

William Budden being sworn, saith, that he was one of three, that inspected the cargo of the Charlotte and reported it in a perishing condition—that some of the inspectors observed that the ship was a fast sailing ves­sel, and that the Judge said the condemnation and sale should be expedited as soon as possible, but it could not be done without public notice, &c.

Dep. was one of the inspectors of the Albion's cargo, and reported it in good order.

Mr. Charles Miller being sworn, acknowledges the papers No. 4 and 5, to be his hand writing—Deponent —acknowledges to have sent the cask of wine mention­ed in the second charge, as a present to the Judge on account of former friendship, and not for the perform­ance of any special purpose. Dep. never mentioned to any person his design of sending the above present, con­sequently the Judge could not know it, until the deli­very.

☞ On the files of the General Assembly there are two sets of depositions, given in by the witnesses; the second copies have been omitted by the editor as imma­terial, [Page 21] except where they throw additional light on the subject—therefore the following is given—

Charles Miller being duly sworn, deposeth and saith, that he acknowledges the papers No. 4 and 5, to be his hand writing, he proposed making a present to the Judge of a quarter cask of wine, with the consent of Mr. M'Clenachan. Mr. Hopkinson knew nothing of the wine until it was sent, it was a present from him, as Mr. M'Clenachan had sent a pipe to G. Washington, he never told his intention of sending the wine to any per­son.

Progress being made in the business.

It was, on motion,

Ordered, That the further hearing of evidence be postponed till the afternoon.

Same Day, P. M.

The House met; and resumed the hearing of evi­dence in support of certain charges exhibited against the Judge of the Court of Admiralty, for mal-admi­nistration in his office, &c.

Resolved, That the 1st and 4th of the said charges against the said Judge appear to be supported by le­gal evidence. (The 4th to be called the 2d.)

Resolved, That the two following charges exhibited in like manner against the Judge aforesaid, are not sup­ported by the evidence before the House, viz.

That he, the said Judge, received presents from per­sons interested in the condemnation of prizes, previous to their condemnation; particularly a cask of wine from on board the prize brigantine Gloucester, presented to him by the captors before any condemnation, sale or distribution.

And, that he, the said Judge, connived at, and en­couraged the sale of prizes before condemnation, con­trary [Page 22] to law, and maliciously charged the Marshal with the crime of such conduct before the honorable Supreme Executive Council; in the instance of the prize ship Charlotte.

On motion,

Ordered, That the charges, which appear to be sup­ported by legal evidence, as above declared, be refer­red to a committee of three: The gentlemen appointed were Mr. J. Smith, Mr. Galbraith, and Mr. Montgo­mery.

FRIDAY, December 8.

THE committee to whom certain charges against Francis Hopkinson, Esq Judge of the Court of Admi­ralty of this state, for mal-administration in his office, were referred on Wednesday last, made their report, which was, by order, read.

On motion and by special order, it was read a second time; whereupon,

The House resumed the consideration of the charges aforesaid, and came to the following resolutions, viz.

Resolved, That Francis Hopkinson, Esq Judge of the Court of Admiralty of this state, be impeached for the crime and misdemeanor expressed and contained in the first charge exhibited against him; and declared by a resolution of this House of the 6th instant, to be sup­ported by legal evidence.

The yeas and nays being required by Mr. Boyd, and Mr. P. Anderson, are as follow, viz.

• 1 Robert Morris,
• 2 Sharp Delany,
• 3 John Steinmetz,
• 4 George Gray,
• 5 Samuel Penrose,
• 6 Henry Hill,
• 7 Matthew Holdgate,
• 8 Benjamin Fell,
• 9 Joseph Savage,
• 10 William Scott,
• [Page 23]11 James Morgan,
• 12 David Thomas,
• 13 Patrick Anderson,
• 14 Evan Evans,
• 15 John Whitehill,
• 16 Christopher Kucher,
• 17 James Anderson,
• 18 Philip Greenawalt,
• 19 Adam Reigart,
• 20 James Cowden,
• 21 Alexander Lowrey,
• 21 Matthias Slough,
• 23 James Dixon,
• 24 Moses M'Clean,
• 25 Thomas Lilly,
• 26 Stephen Duncan,
• 27 William Brown,
• 28 Jonathan Hoge,
• 29 John Andrews,
• 30 John Harris,
• 31 John Allison,
• 32 George Ege,
• 33 John Patton,
• 34 Baltzer Gehr,
• 35 Mark Burd,
• 36 Thomas Mifflin,
• 37 William M'Farren,
• 38 Robert Latimer,
• 39 John Burd.

• 1 George Campbell,
• 2 Joseph M'Clean,
• 3 George Smith,
• 4 Gerardus Wynkoop,
• 5 William Harris,
• 6 James Boyd,
• 7 John Culbertson,
• 8 Jacob Cook,
• 9 Robert Galbraith,
• 10 James Smith,
• 11 William Mitchell,
• 12 James Ramsey,
• 13 Peter Rhoads,
• 14 William Montgomery,
• 15 David M'Kinney,
• 16 John Kelley,
• 17 Joseph Powell,
• 18 James Jacks.

Resolved, That the said Francis Hopkinson be also im­peached for the crime and misdemeanor expressed and contained in the second charge declared as above to be supported by legal evidence.

The yeas and nays being required, stand as follows, viz.

• 1 Robert Morris,
• 2 Sharp Delany,
• 3 John Steinmetz,
• 4 George Gray,
• 5 George Campbell,
• 6 Joseph M'Clean,
• 7 Samuel Penrose,
• 8 Henry Hill,
• [Page 24]9 John Culbertson,
• 10 James Boyd,
• 11 Joseph Savage,
• 12 William Scott,
• 13 James Morgan,
• 14 David Thomas,
• 15 Patrick Anderson,
• 16 Evan Evans,
• 17 John Whitehill,
• 18 Christopher Kucher,
• 19 James Anderson,
• 20 Philip Greenawalt,
• 21 Adam Reigart,
• 22 James Cowden,
• 23 Alexander Lowrey,
• 24 Matthias Slough,
• 25 James Jacks,
• 26 James Dixon,
• 27 Moses M'Clean,
• 28 Robert Galbraith,
• 29 James Smith,
• 30 William Mitchell,
• 31 James Ramsay,
• 32 Thomas Lilly,
• 33 Stephen Duncan,
• 34 Jonathan Hoge,
• 35 John Andrews,
• 36 John Harris,
• 37 John Allison,
• 38 George Ege,
• 39 John Patton,
• 40 Baltzer Gehr,
• 41 Mark Bird,
• 42 William M'Farren,
• 43 Robert Latimer,
• 44 Peter Rhoads,
• 45 David M'Kinney,
• 46 John Kelly,
• 47 John Burd.

• 1 Matthew Holdgate,
• 2 George Smith,
• 3 Benjamin Fell,
• 4 Gerardus Wynkoop,
• 5 William Harris,
• 6 Jacob Cook,
• 7 William Brown,
• 8 Thomas Mifflin,
• 9 William Montgomery,
• 10 Joseph Powell.

Ordered, That Mr. Campbell, Mr. J. Smith, and Mr. Galbraith, prepare and report to the House, proper ar­ticles of impeachment to be exhibited against the said Francis Hopkinson, Esq conformable to the above reso­lutions.

SATURDAY, December 9.

THE committee appointed yesterday to prepare arti­cles of impeachment against the Judge of the Court of [Page 25] Admiralty, for mal-administration in his office, made their report, which was read, and ordered to lie on the table for consideration.

TUESDAY, December 12.

THE articles of impeachment against Francis Hopkin­son, Esq Judge of the Court of Admiralty of this state, prepared and reported by a committee of the House, were read the second time, and, on consideration, agreed to, as follows, viz.

ARTICLES of IMPEACHMENT for certain crimes and misdemeanors, against FRANCIS HOPKINSON, Esq Judge of the Court of Admiralty of the commonwealth of Penn­sylvania, by the Representatives of the Freemen of the said commonwealth, in GENERAL ASSEMBLY met, in their own name, and in the name of all the Freemen of the said com­monwealth; exhibited to the Supreme Executive Council.

First. That having a power by law to appoint an a­gent for unrepresented shares of prizes, belonging to absent seamen and others, he, the said Francis Hopkin­son, in a conversation with the late Marshal, Matthew Clarkson, offered and proposed to appoint Blair M'Cle­nachan, agent for a number of such shares, belonging to seamen who had sailed on board the privateer Holker, upon condition, that he, the said Blair M'Clenachan, would make a present of a suit of cloaths; and, this condition not being complied with, he appointed others in his stead.

Secondly. That he, the said Francis Hopkinson, issued a writ for the sale of the cargo of a prize, declaring in the same writ, that it was testified to him, that the same cargo was in great danger of waste, spoil and damage, when in fact and in truth, no such testimony or return was ever given or made to him, in the instance of the cargo of the prize ship Albion.

And the said Representatives of the Freemen of the [Page 26] commonwealth of Pennsylvania, in General Assembly met, do demand, that the said Francis Hopkinson, Esq Judge of the Court of Admiralty, may be put to an­swer all and every the premises, and that such proceed­ings, examinations, trials and judgments may be upon him had and used, as is agreeable to law and justice, and the directions of the Constitution of this common­wealth; and the said Representatives of the Freemen aforesaid, are ready to offer proofs of the premises, when and where the Supreme Executive Council of this state of Pennsylvania shall appoint.

Ordered, That the foregoing articles of impeachment be engrossed and signed by the Speaker; and that Mr. Campbell, Mr. J. Smith, and Mr. Galbraith, be a com­mittee to carry up the same to the Supreme Executive Council, and manage the trial to be had thereon in be­half of the state.

Ordered, That the Attorney-General be directed to give his attendance at the trial aforesaid, and assist there­at on behalf of the commonwealth.

Same Day, P. M.

The articles of impeachment against Francis Hopkin­son, Esq were brought in engrossed, and being signed by Speaker, were carried up to the Supreme Executive Council by the committee appointed for that purpose.

MONDAY, December 18.

A MEMORIAL and representation from Jonathan Dickinson Sergeant, was received and read.

On motion and by special order, it was read the se­cond time.

Ordered, That it be inserted in the minutes.

The same is as follows, viz.

The bill of costs alluded to in the above memorial, is as follows, viz.

A true copy from the original, MATTHEW CLARKSON.

Ordered, That the Clerk give notice to Matthew Clarkson, of the city of Philadelphia, merchant, to at­tend this House immediately to give evidence on the charge contained in the above memorial and represent­ation, against Francis Hopkinson, Esq Judge of the Court of Admiralty of this state, for mal-administra­tion in his office.

The House were informed that Mr. Clarkson, who was directed to attend the House, to give testimony on [Page 29] the charge exhibited this morning against Francis Hop­kinson, Esq was confined to his chamber by sickness, and could not obey the order of the House.

Ordered, That Mr. Steinmetz, and Mr. Penrose, tak­ing to their assistance a Justice of the Peace, be a com­mittee to obtain the necessary information on the charge aforesaid from the said Matthew Clarkson.

The committee appointed this morning, to obtain the necessary information from Matthew Clarkson, respect­ing the charge exhibited against Francis Hopkinson, in the memorial of Jonathan D. Sergeant, reported the following deposition, indorsed on the bill of costs, al­luded to in the said memorial, &c.

TUESDAY, December 19.

THE House resumed the consideration of the memo­rial and representation of Jonathan Dickinson Sergeant, and the deposition reported yesterday by a committee of the House: Whereupon,

[Page 30] Resolved, That Francis Hopkinson, Esq Judge of the Court of Admiralty of this state, be impeached on the charge expressed and contained in the said memorial and representation.

Ordered, That Mr. Campbell, Mr. J. Smith, and Mr. Galbraith, be a committee to prepare a proper article of impeachment on the said charge, to be sent to Coun­cil.

The committee appointed to prepare a proper article of impeachment against Francis Hopkinson, Esq Judge of the Court of Admiralty of this state, on the charge expressed and contained in the memorial of Jonathan D. Sergeant, presented yesterday, reported the same, which was read the first time.

On motion, and by special order, it was read the se­cond time, and being considered was agreed to, as fol­lows, viz.

A further ARTICLE of IMPEACHMENT, for exacting and receiving illegal fees, against Francis Hopkinson, Esquire, Judge of the court of Admiralty of this state of PENNSYLVANIA, in addition to the former two exhibited to the Supreme Executive Council the 12th instant, by the Representatives of the FREEMEN of the commonwealth of PENNSYLVANIA, in General Assembly met.

WHEREAS by an Act of General Assembly of this commonwealth, passed the twenty-seventh of No­vember, in the year of our Lord one thousand seven hundred and seventy-nine, it is enacted, "That the fees of the Judge of Admiralty, including his fee for a final decree, in the case of a ship or vessel under the bur­then of one hundred tons, shall be twenty-five bushels of good merchantable wheat; and in the case of a ship or vessel above the burthen of one hundred tons, shall be forty bushels of such wheat, payable however in money, as in the case of other civil officers of this state." Nevertheless, he the said Francis Hopkinson, Esq Judge of the Court of Admiralty, in contempt of the Act of [Page 31] Assembly aforesaid, did exact and receive, as and for his fees, as Judge of the Court of Admiralty aforesaid, the sum of thirteen hundred pounds in the case of the bri­gantine Recovery, Job Pray, libellant, and Robert Mor­ris, claimant, of the burthen of about eighty tons, be­ing a larger and greater sum than by law he ought to have received.

And the said Representatives of the Freemen of the Commonwealth of Pennsylvania, in General Assembly met, do demand, that the said Francis Hopkinson, Esq Judge of the Admiralty, may be put to answer to the above charge in like manner as to the former charges exhibited in the impeachment sent the 12th in­stant, they being in like manner ready to offer proofs of the premises, when and where the Supreme Execu­tive Council of this state of Pennsylvania shall appoint.

Ordered, That the above article be engrossed.

WEDNESDAY, December 20.

THE additional article of impeachment against Fran­cis Hopkinson, Esq Judge of the Court of Admiralty of this state, as agreed to yesterday, was brought in en­grossed, and being compared at the table, was signed by the Speaker by the direction of the House.

Ordered, That the same be carried to the Supreme Executive Council, by the committee appointed on the former articles of impeachment, who are hereby direct­ed to manage the trial to be had thereon, taking to their assistance the Attorney-General of this state, as before ordered.

☞ The Editor will now give a view of this subject as managed before the Supreme Executive Council, from the time of its first introduction until the decree was pronounced. It is presumed that reasonable indulgence will be allowed for the unavoidable deficiencies which [Page 32] are obvious in the foregoing and following pages, be­cause no regular narrative of the proceedings had been collected in proper season.

In COUNCIL, TUESDAY, December 12.

Present, His Excellency JOSEPH REED, President, the honorable WILLIAM MOORE, Vice-President, Mr. LACEY, Mr. GARDNER, Mr. JAMES READ, Mr. POTTER, and Mr. PIPER.

Mr. Smith and Mr. Galbraith from the House of As­sembly, laid before the Board, articles of impeachment against Francis Hopkinson, Esq Judge of the Court of Admiralty, which being read;

Ordered, That Saturday next at eleven in the fore­noon be appointed to proceed thereupon.

That in the mean time, the Secretary do furnish the said Francis Hopkinson, Esq with a copy of this order, and the said articles, that he may give in his written an­swer thereto before the said day.

This was made known to Mr. H. the same day.

MONDAY, December 18.

PRESENT as above.

Mr. Hopkinson put in the following answer to the a­foresaid articles.

The answer of Francis Hopkinson, Judge of the Court of Admiralty of the commonwealth of Pennsylvania, to the articles of impeachment exhibited against him, by the Representatives of the Freemen of the said com­monwealth, in General Assembly met, in their own name, and in the name of all the Freemen of the com­monwealth aforesaid.

TO the first article the said Francis Hopkinson saith, that Matthew Clarkson, Esquire, late Marshal, made a [Page 33] return to him the said Francis Hopkinson, as Judge of the Court of Admiralty; of certain unrepresented shares in prizes taken by the privateer called the Holker, soon after which the said Matthew Clarkson came to him the said Judge, and desired he might be appointed agent for the said unrepresented shares (the said Francis Hopkin­son then being in intimate friendship with the said Mat­thew Clarkson) but the said Judge cautiously declined giving him the said Clarkson the agency requested; ob­serving to him that the offices of agent and marshal appeared to be incompatible, and requesting the said Marshal not to urge a compliance with his desire, as such an appointment would probably bring censure on both.

Nevertheless the said Matthew Clarkson continued to urge the appointment for two or three days, pleading the poverty of his office, declaring the profits thereof did not pay his Clerk, and alledging that the Judge ought from motives of friendship to throw any little advantage in his way that might occur from the rights of his office.

But the Judge still declined the request from a sense of impropriety and apprehension of censure. At length the said Marshal told the Judge that finding him so very nice and difficult, he had been with Mr. Blair M'Cle­nachan, and made up matters with him; so that if the Judge would give the agency to Mr. M'Clenachan, of the shares in question, it would answer his (the Mar­shal's) purpose and interest just as well.

The Judge, happy to be rid of the embarrassments he was under on the score of friendship, gave the said Matthew, then Marshal, reason to believe (but no ab­solute promise) that Mr. M'Clenachan should be ap­pointed agent.

Thus matters rested for some days, after which the Judge being at the Marshal's, and they alone in friendly conference; the Judge informed the Marshal, that a thought had just occurred which he would in confi­dence mention, requesting his opinion thereupon, and declaring he would be bound by it. And then observ­ed [Page 34] to the Marshal that he was about to throw into Mr. M'Clenachan's hands, many thousand pounds, by giv­ing him the agency.

That Mr. M'Clenachan had wrought him much trou­ble in his office, had never shewn civility of any kind, and even neglected the common compliment of his hat, when they met. That he heard much of Mr. M'Cle­nachan's politeness and generosity to other persons and submitted it, whether it would not be as proper, if Mr. M'Clenachan should make him a present of a suit of cloaths, as well as to other persons who had not been as beneficent to him or done him such substantial favours, and finally observed that this was a matter of delicacy and doubt. To which the Marshal replied, that in common justice Mr. M'Clenachan ought to make some acknow­ledgment for so considerable a favour—that there was no impropriety or indelicacy in the Judge's receiving such a present, should it be offered; the appointment to an agency not being a judicial act, but a voluntary fa­vour of the Court; no more conversation of any im­portance passed at that time on the subject.

Some days after, the Judge asked the Marshal whe­ther he had ever mentioned any thing of this affair to Mr. M'Clenachan, who replied that he had not had a favorable opportunity, and these were the only times in which the matter was touched upon; excepting that some short time after the Judge thinking on further consideration that the thing was improper, declared his better sentiments to the Marshal, and absolutely forbid him proceeding in it. But told the Marshal he should expect Mr. M'Clenachan would at least ask the Judge for the agency, a ceremony he never dispensed with—as he thought the favour worth asking for, if worth pos­sessing; and declared he would never make the favours of his office so cheap as to force them on persons who would not condescend to request them.

Mr. M'Clenachan however neglecting to ask for the agency in question, the Judge frequently urged this sen­timent to the Marshal, which circumstance the said [Page 35] Marshal hath in his deposition falsely and maliciously applied to the suit of cloaths, all ideas of which had long since been totally discarded by the Judge. After this, above a fortnight passed, in all which time Mr. M'Clenachan never called upon the Judge, or gave the least intimation that the agency would be acceptable to him. The matter was also dropped by the Marshal, who seemed rather to avoid any conversation on the subject. In the interim, other reasons occurred to the Judge for not appointing Mr. M'Clenochan agent, one of which was, that he was a principal owner of the Hol­ker, and another, because the Marshal having had great good fortune in the arrival of a valuable prize (the Need­ham) taken by one of his privateers, the Judge thought the agency was no longer an object with him: And last­ly, because the Judge on reflection thought himself right in refusing to make the Marshal agent, but found it would be continuing the substance, only altering the form, in appointing Mr. M'Clenachan agent, knowing that it was to serve the purpose and interest of the Mar­shal.

For all these reasons, and to relieve himself at once from surrounding difficulties, he finally gave the agency to Messrs. Meade and Fitzsimons.

It is not to be wondered at that Mr. M'Clenachan did not apply for the agency. As it appears since, that he was totally ignorant of the whole affair; Mr. Clarkson having never mentioned the matter to him at all, till after the appointment of Messrs. Meade and Fitzsi­mons, having imposed a falshood on the Judge to serve his own avaricious purposes.

As to the second charge, the said Francis Hopkinson saith, that the ship Albion was captured in the North seas by two vessels belonging to Robert Morris, Esq and o­thers, sent into this port and libelled here. It appeared from her papers exhibited to the Judge that her cargo was altogether salt, being eight or nine thousand bu­shels. A claim was also filed on behalf of her Majesty the Empress of Russia; as salt was scarce at that time, [Page 36] the Judge hoping to do a public service without injury to any individual, waited on Mr. Morris, and observed to him, that as a claim was filed, the decision might be dilatory, that if the cargo waited till condemnation, it would be distributed in kind, and so fall into the hands of a few. That he thought salt water-born, and after so long a voyage might properly be considered as a pe­rishable article, and sold by vendue before condemna­tion under the Act of Assembly; and that it would be very popular and a public good, if this salt should be sold in small lots, so that the house-keepers might have an opportunity of supplying themselves reasonably.

To this Mr. Morris after a day's interval consented, and a writ of sale in the common form was issued, and the salt advertised to be sold. His Excellency the President seeing the advertisment, took offence and wrote to the Marshal on the subject. The Judge on seeing this letter waited on the President and declared his motives.

The President observed that if the law was inconve­nient, methods might be taken to have it amended; but that whilst it was the law, it ought to be held sa­cred; and that salt could not be considered as a pe­rishable article within the meaning of the Act. The Judge, in deference to the President's opinion, imme­diately ordered a survey; and on the report of the Sur­veyors, that the cargo was not in a perishable condition, countermanded the sale, and the cargo remained un­touched 'till after condemnation.

And the said Francis Hopkinson, by and under pro­testation, that the said articles, and the matter in the same contained are not sufficient in law to maintain the aforesaid impeachment against him; and saving to himself (and which he prayeth may be saved to him) both now and at all times hereafter, all and all manner of benefit and advantage of exception to the insufficiency of the said articles in point of law: Nevertheless for plea thereto he saith, that he is in no wise guilty of all or any the crimes, offences or misdemeanors, of what na­ture, [Page 37] kind or quality soever, by the said articles of im­peachment charged upon him, in manner and form, as in and by the said articles is supposed.

Wherefore he submitteth himself, and [...] justice of his cause, to this honorable Court, and prayeth to be discharged of the premises, and to be hence dismissed and acquitted of all the matters, crimes, misdemeanors and offences, in and by the said articles of impeach­ment charged upon him.

FRANCIS HOPKINSON.

Philadelphia, Dec. 18, 1780.

Messrs. Smith and Campbell from the honorable House of Assembly, having informed this Board, that a new charge had been this day presented against the Hon. F. Hopkinson, Esq which was now under the conside­ration of the House, and submitting to the Board, the propriety of deferring the trial on the former articles.

Resolved, That the hearing be deferred until Thurs­day next at eleven o'clock in the Council chamber.

This order was notified to Mr. Hopkinson by the Se­cretary of Council on the same day.

WEDNESDAY, December 20.

PRESENT as above.

Mr. Galbraith from the Hon. House of Assembly laid before the Board a further article of Impeachment against F. Hopkinson, Esq Judge of the Court of Ad­miralty for exactnig and receiving illegal foes; which being read,

Resolved, That the said Francis Hopkinson, Esq be furnished with a copy thereof, and that he be desired to give in his answer thereto as soon as possible.

This was accordingly made known to the defendant on the same day.

THURSDAY, December 21.

PRESENT as before.

A letter from Francis Hopkinson, Esq Judge of the Court of Admiralty stiled, An Answer to the third article of impeachment exhibited against him by the House of General Assembly, was read, as follows, viz.

And the said Francis Hopkinson in answer to the third article of impeachment brought against him, saith:—

That it hath been the stated custom for the Register of the Court of Admiralty to draw out and deliver to the Marshal, the bills of costs, in every cause, and for the Marshal to collect and account with the Judge for the sum total of his the Judge's fees. That during his being in office he hath never seen a bill of costs in any cause whatever, or ever heard any complaints made of his fees being illegal or oppressive.

That he hath never conversed on the subject with any person whatever, one instance only excepted, viz. When early in office a cause of a personal nature, where no vessel was concerned, coming before him, he asked the Register, How the fees were to be adjusted in such a case, as the Act of Assembly seemed to refer to vessels of certain tons burthen. To which the Re­gister replied, That for services not referred to in the Act, the custom was to charge the fees according to the ancient rates, allowing 40 for one for depreciation. To which system the Judge gave his assent, and acquiescence as reasonable and right: That the Judge never undertook to determine, what might be services included in the Act, and what not. That as no comp­laints were ever made, he thought all was right and no injury done. That in the case exhibited by the honorable House of Assembly of the brig Recovery, neither the captors or any person concerned, ever ap­plied to the Judge to have the bill of costs scruti­nized, [Page 39] or suggested to the Judge, or to any other per­son to his knowledge, that they thought themselves ag­grieved. That in the case of the said brig Recovery, many courts were held by adjournment, and arguments had of a complex and difficult nature; that besides the prosecution of the libel by the captors, a claim was filed by Robert Morris, Esq on principles entirely new, and which had nothing to do with the simple capture and condemnation of the prize; and that in the said cause also two or more courts were held and depositions taken, &c. on the trial of two negroes for freedom or slavery, and also on agency appointed, for all which services, the Register hath, as the Judge is informed and be­lieves, charged the former customary fees and the mo­derate exchange of 40 for one. That the Judge can and will produce undoubted testimony that he hath never been covetous of his fees, or made any efforts to enlarge and encrease them beyond the bounds of justice and moderation: On the contrary hath always shewn a ready disposition to save expence to parties by shortening the time for condemnation in clear cases; by remitting his fees in cases of poverty and small property, and in one instance by suffering eight vessels (of small value) to be included in one libel; for the avoiding of expence; where he might legally and right­fully have insisted on eight separate libels, to his great emolument.

And finally that this third article of impeachment is grounded on an opinion as to the construction of an Act of Assembly; for which the Judge is not impeachable; and that the Judge hath all probable reason to suppose that his opinion was right; as no p [...]rson, during the whole of his business in office hath ever made any com­plaint on this head.

And the said Francis Hopkinson prays that this his answer to the third article of impeachment, may be annexed to, and incorporated with his answer to the two former articles, and to have reference to his former [Page 40] pleas of not guilty, and demurrer to the charges brought against him.

[Page 41]The Attorney-General read two several replies of the said Francis Hopkinson to the said charges.

Mr. Ingersoll, counsel for the defendant in his behalf, declared his consent that the deposition of Matthew Clarkson should be taken agreeable to the motion by Mr. Smith: and thereupon,

Ordered, That the deposition of Matthew Clarkson, touching the cause now in hearing before the Council, be taken this afternoon, at 4 o'clock at the house of the said Clarkson, in the presence of the committee of the House or either of them, and of the counsel of the said Hopkinson or one of them, and that a committee of Council do also attend.

Ordered, That the Vice-President, Mr. Read and Doctor Gardner be a committee for the said purpose.

On motion of Mr. Wilson, that the deposition of Robt. Morris, Esq a material witness in the case now in hearing, and whose state of health rendered his attend­ance in court very uncertain may be taken in like man­ner as is ordered in the case of Mr. Clarkson, and the committee of the House assenting to the same. It was agreed to by the Council, and the same committee direct­ed to attend the taking of the said deposition.

The Court adjourned to ten o'clock to-morrow morn­ing.

FRIDAY, December 22.

PRESENT as above.

The committee of the honorable House of General Assembly, Francis Hopkinson, Esq and the Attorney-General [Page 44] of the state attended in the Council-chamber, the doors of the Council-chamber remaining open.

Mr. Smith moved that the deposition and cross-exa­mination of Matthew Clarkson be now read; and the same was read by Mr. Galbraith.

Mr. Smith moved that testimony be taken as to the first article separately, to which no objection was made. And thereupon Mr. Gerardus Clarkson, was called in, sworn, and examined.

William Lewis, Esq Mr. Thomas Fitzsimons, Andrew Robeson, Esq Blair M'Clenachan, Robert Morris, Esqr. and Mr. Wm. Heysham, were called in and sworn in like manner, and gave an account of what they knew res­pecting the case now before the Council. The follow­ing questions and answers were put and written the same day.

QUESTIONS and ANSWERS.

Mr. Robeson (sworn.)

Some time early in last May, the Marshal, Mr. Clarkson, made a return that there were certain shares for whom there were no agents, of some of the Holker's crew. Within a few days after I saw the Judge, who told me the Marshal had applied to him for the agency of these shares. He had told Mr. Clarkson he thought such appointment would be improper, as he was a prin­cipal officer of the Court, in case of any improper conduct there was no officer to serve process, that he saw the Judge again who told him that Clarkson had again applied to him, and urged the request on the score of friendship, that he had repeated his objections, to which Clarkson replied, that the situation of his accounts with B. M'C. rendered it very convenient— that the Judge declined it. That some time after he Cl: proposed to the Judge to appoint Mr. M'C. that that perhaps would answer as well. The Judge men­tioned he had given him (Clarkson) great expectati­ons that B. M'C. should be appointed. He afterwards mentioned that he had thought further on the question. [Page 45] That he had met B. M'C. frequently, that he (B. M'C.) had not mentioned the subject to him, and that Mr. M'C. had never asked the appointment, that when he met him in the street, he had taken no notice of him, not paying him the ceremony of the hat, that if the favour was worth his receiving it was worth asking. That be­sides it appeared to him to be improper, that an owner should be appointed, that it appeared to be the design of the law those agencies should be thrown into other hands. Those conversations happened within about a fortnight. That about the 20th May Mr. Fitzsimons applied for the necessary papers. Meade and Fitzsimons being appointed to the agency. That the Judge soon after informed him, that he had now relieved his mind from the embarrasment respecting the agency by having given it to unexceptionable persons. That altho' M'C. was offended.

Mr. Clarkson said,

That he had given to Mr. M'C. expectations of be­ing appointed agent, that he had taken steps according­ly and had been made to appear little by it, that he thought it a very extra step.

Nothing passed between M'C. and him respecting C's applications but on B. M'C's account—That he had never heard any thing of a suit of cloaths proposed un­til the charges were exhibited. When he heard what the Marshal urged, and the Judge's representations in justification of himself.

Question by Attorney. Did the Judge ever mention to you his expectation of a suit of cloaths?

Ans. Not until the evening of the day on which the Judge complained to the Council against the Marshal. There were frequent conversations concerning the mo­tives of the Judge, but I never heard any thing of the suit of cloaths.

Ques. Did you ever hear any thing concerning a Judge's receiving presents?

Ans. I have heard the case of a Judge in New-York.

Ques. Did the Judge approve, or disapprove of this?

[Page 46] Ans. I do not recollect the manner, but he seemed to disapprove it.

Ques. When was it that this conversation passed, before or after this affair?

Ans. I can't recollect but believe long before; I think the Judge disapproved of such conduct.

By J. Smith.

Ques. Did the Judge ever inform you that he had warned and forbid the Marshal of the Court of Admi­ralty to offer the cloaths?

Ans. I never heard of the matter until the time al­ready mentioned, when it was mentioned by both par­ties.

Mr. M'Clenachan (sworn.)

In the beginning of the privateering my agency was verbal, but after some inconveniency arising, written ones were taken—some were omitted, it was referred to the Judge.—Some time after the Marshal told me he thought the Judge would appoint me, and I advanced money to the people to keep them quiet—he was howe­ver informed that Meade and Fitzsimons were appoint­ed, that it made no difference to him, he therefore made up his accounts and sent them the balance— That as to the suit of cloaths he had never at that time heard of any thing of the kind from any one.

Question by J. W. You have done a great deal of business with the Judge, did he ever intimate to you that he expected a present from you?

Ans. No.

Question by Mr. Ingersol to Mr. G. Clarkson.

Whether you have ever heard the late Marshal say, "it would be a particular gratification to him, or do his heart good, if Mr. Hopkinson were discharged from his office?"

Objected to—argued—and put.

Ans. I have not the least idea of it.—I have said it myself; but never heard an expression of the kind from my brother.

[Page 47]Attorney for defendant, rests the testimony on the first charge, so far as testimony goes, particularly to this point, reserving some testimony which goes to the whole of the charges to be given at the close of the trial.

Mr. Smith then read the second charge, and the At­torney-General read the allegation of defendant and his plea of non cul.

Mr. Galbraith read the warrant for selling the cargo of the ship consisting of salt, No. 9, page 9.

Obj. No return thereof made to the Judge by the Marshal of the Admiralty.

J. D. Sergeant adduced.

Mr. Smith opened the testimony—that the evidence is to prove, that there had been no writ of appraisement, or of view previous to the writ of sale.

The writ for inspection dated 11th August, and return dated the 17th, were read—the publication for sale previously being admitted as stated in the answer to the charge by the Judge.—The witness therefore is unne­cessary.

Mr. Wilson read the writ of countermand dated the 11th August forbidding the sale, and stating the cause of forbidding.

Robert Morris, Esquire (sworn.)

I was part owner of the Gen. Washington, which with took the prize in question.

It was thought necessary to put in a claim on the part of the Empress of Russia which had the ap: of delay, was informed that it was a sentiment which had escaped the Judge, that the cargo might be sold as be­ing perishable in its own nature—that salt was exceed­ingly wanted and would be of public utility to sell it as soon as possible—and he called on me and mentioned. One of the owners of the W. being in the city consent­ed to the sale, and being of opinion with the Judge respecting it, requested J. W. Esqr. to apply for the warrant of sale, which was at his request, granted as has been read; after this the Judge called at my house, and told me the proceedings was not approved by the [Page 48] President. That he thought improper, and asked if the owners were materially affected by the delay. I replied, that if the proceedings were judged improper, I begged that the sale might be stopped, and the pro­ceedings had as in the usual form. That it had been considered by merchants that sugar and salt water-born were in their nature perishable.

Question by Mr. W. Have yo [...] been appointed by the Judge to be agent in any case?;

Ans. I was in the case of this ship Albion because the owners were not here, and the vessel belonged to Vir­ginia (for a variety of reasons not material.)

Ques. Did the Judge ever demand or receive from you any present in this or any case of this kind?

Ans. No; never!

The letter from his excellency to the Marshal dated August 9, 1780, and the letter from the Attorney to the Marshal containing his advice and opinion of the war­rant for sale, were read.

Here it was remarked by Mr. Wilson, That this let­ter was never communicated to the Judge until the charge was laid before the House.

Question to Mr. Morris by Mr. Willson.

Is there not a loss on the cargoes of salt?

Ans. There was a deficiency of about 130 bushels below what the cocket mentions.

By the Attorney-General. Was not the price of salt lower at the time of advertisement than later in the fall?

Ans. Not in the present case.

Ques. Is it not generally so?

Ans. It is when the trade is open.

Question by attorney for plaintiff. Was salt much want­ed at that time?

Ans. It was much wanted.

Ques. to Mr. Robeson. At what time was the sale of the Albion's cargo?

Ans. It was not sold, it was divided about the 5th of September.

Adjourned to 4 o'clock, afternoon.

Same day, 4 o'clock, P. M.

The Council met; present as in the forenoon.

Mr. Smith then read the third charge; Mr. Attor­ney-General read the reply of the said Francis Hopkinson to the said charge.

Mr. Smith read the bill of costs in the case of the brig Recovery, signed by Mr. Clarkson, Judge's fee £. 1300.

The deposition of Matthew Clarkson, late Marshal, was read by Mr. Galbraith.

Register of the brigantine Recovery, to shew her tonnage. 40 tons or thereabouts.

Ques. Was this register among the papers in your office?

Ans. Yes.

Ques. Did the Judge see this register?

Ans. As it was handed to him, no doubt he saw it.

Ques. Are there any other papers which shew the ves­sel's tonnage in your office?

Ans. Yes, there are.

Mr. Smith admitted that the tonnage of the brigan­tine is 80 tons.

Attorney for the defendant observed that the tonnage of the brig was not material in this defence, but that as a British register had been brought to shew that she was a small trifling vessel, it became a duty to remove the impressions made by it;—That the case of the brig was unprovided for by the law which refers to the tonnage and rests on the former law, and will be defended on that ground.

Answered by Mr. Smith.—Who read the 26th article of the Constitution.

Mr. Robeson was adduced to prove the former custom of fees in like cases.

Mr. Smith objects to the evidence as being impro­per [Page 50] to produce proof of former customs in opposition to a law.

Mr. Ingersoll. The witness is produced to shew upon what principles the bill was made out; and the question of the propriety or legality of those principles is to be argued, and to be judged of by the President and Council.

Mr. Wilson read the 26th section of the Constitution, and claimed moderate and adequate fees. (See page 60.)

Mr. Smith replied, but his objections were overruled as being out of time.

Mr. Robeson, some short time after the Act of Assem­bly now read, was passed, Mr. Hopkinson, the Judge, mentioned, that there were many cases not mentioned in the Act and desired to know how the fees ought to be made out. I told him that in such cases, I supposed, they must be made out according to the old Act and usage, and desired to know whether it would be reasonable to allow for extra services, and that it would not be objected to.

That in case of parties not attending at the day, or by repeated delays, that in such case the former sees might lawfully be charged.

In the present case of the brig Recovery, there was a claim put in, that there were adjournments in this case, that the determination of the case of the negroes was not determined 'till within a few days—That the fees were made out with a view to the final decision of the case, which would have made but little alteration whe­ther they should be condemned or acquitted.

Ques. Were the charges for appointing of agents for unrepresented shares, charged in the accounts of the vessels?

Ans. It ought not to be; but whether it was ascer­tained in the bill delivered to Mr. Clarkson or not, I cannot ascertain.

Ques. I find charged, sees for holding of court, one pound four shillings. Is it customary to charge for hold­ing a court?

[Page 51] Ans. Mr. Ross always charged for holding a court, twenty shillings, and four shillings for—

Ques. Whenever the party appeared before the court, is it customary, to charge for holding a court?

Ans. Yes—and he assigned the reason.

Ques. Did you ever communicate to the Judge the estimate of the fees?

Ans. Yes.

Ques. You say the charge for deciding the cause of the negroes, was not due when you made out the ac­count?

Ans. It was not then due.

Ques. You say then, that those are the fees custom­arily charged?

Ans. Yes, it is according to the practice by Mr. Ross and Mr. Shippen, as far back as I know any thing of it.

Ques. Was this conversation after passing the wheat bill?

Ans. It was.

The witness acknowledges his neglect in not remark­ing at the bottom of the account, the sum to be charged to the unrepresented shares.

Ques. In what did this case differ from the usual or common cases?

Ans. There was a third vessel in sight which filed a claim, but was not able to support their claim not hav­ing a commission. The part of the charges arising from this claim, was noted in the account to be paid by them. Here the witness offered a sketch of a bill of costs upon the extent of the fees due in the case which exceeded the bill delivered, by several hundred pounds.

Ques. Have you ever had any particular directions from the Judge as to the manner of making out the charges?

Ans. He directed in general, that in such cases the bill should be made out upon the former usage.

Ques. Respecting the claims of a negro for his free­dom?

[Page 52] Ans. The claims of negroes for their freedom are never charged.

Ques. You have mentioned, that bills of expences are frequently made out before they really become due, has those fees ever been demanded before the service was performed?

Ans. I don't know what may be meant by demanded; I understand, that the Marshal pays the fees to the Judge as the Judge's necessity may require, or as the Marshal may be in cash.

Ques. Do you shew the bills of cost to the Judge before you deliver them?

Ans. No.

Ques. In cases where bills are made out before the ser­vices are done, is it done by the request of the parties or not?

Ans. It is always done at the request of the parties, and for the expedition of their business.

Ques. What was the fee under the former Act for holding a court?

Ans. There are three articles only taken notice of,—&c.

Mr. Ross frequently looked at the bills, and where a charge for holding a court was omitted, he directed me to make it.

Ques. by Mr. Wilson. Do you recollect any instance where eight small vessels were contained in one libel?

Ans. Yes, in the case of Kemp, in which Mr. Bankson was Attorney, and either at his request or the—

Ques. You have been intimately acquainted with the Judge. Have you ever observed him to be disposed to exact with severity the fees to the utmost?

Ans. I never observed any thing of this sort. The question respecting the mode of charging the fees—

Ques. Do you know of any instance of a stipulation being demanded, where the party was too poor to pay?

Ans. By several cases to shew that in the case of per­sons being too poor to pay, the fees were not demanded, but where claims have been made by seamen—

[Page 53] Ques. Did you ever know of any instance of the Judge's hinting to any person that he expected a present?

Ans. I know nothing of the kind, or of any presents that were made him, except a small chicken turtle sent him by some captain, whether by a claimant in the court or not, I cannot tell, and of the wine which has been talked of; I recollect that a captain who had a cause depending, sending a cheese to the Judge, which he refused to accept and sent it back.

SATURDAY, December 23.

PRESENT as before.

The honorable committee of the General Assembly, honorable Francis Hopkinson, Esq the Attorney-Gene­ral of the state, and the Attorneys for the defendant at­tended in the Council-chamber.

Mr. Smith adduced cases to support the charges.

Mr. Wilson replied.

At the request of the honorable committee of the Assembly the court was adjourned till three o'clock in the afternoon.

Same day in the afternoon, 3 o'clock.

Present his excellency the President, honorable the Vice-President, General Lacey, Mr. Read, General Pot­ter, Colonel Piper and Doctor Gardner.

Mr. Smith, one of the honorable committee of the General Assembly, F. Hopkinson, Esq the Attorney of the state, and the Attorneys for the defendant attended in the Council-chamber.

The Attorney-General of the state opened the argu­ment, in behalf of the state.

Mr. Ingersoll and Mr. Wilson, Attorneys for the de­fendant—replied.

Mr. Smith on behalf of the state replied to the At­torneys on the part of the defendant.

The Attorney of the state closed the argument.

The court adjourned till next Tuesday morning at ten o'clock.

TUESDAY, December 26.

PRESENT his exellency the President, the honora­ble the Vice-President, Mr. Lacey, Mr. Potter, Mr. Piper and Mr. Read.

The Council having met agreeable to adjournment. Mr. Smith of the committee of the General Assembly attending, and Francis Hopkinson, Esq also attending, the President read the following DECREE.

IT is not usual to enter into the reasons of the judg­ment upon occasions of this kind, but the importance of the present prosecution makes it necessary.

In the first place it is observable, that the commission of the Judge is during good behaviour; crimes only are causes of removal—the cause is of great importance as it respects the officer, and as it comes from the Re­presentatives of the people.

It certainly is of the greatest consequence, that the streams of justice be kept pure—We act in the double capacity of Judges and Jury—It therefore became our duty, and we have examined minutely into the evi­dence—It is immaterial from what motives the prose­cution has originated, any farther than to determine how far it may affect the credibility of the witnesses— perhaps few public prosecutions have taken their rise from pure regard to the public good, nor is it of any consequence with what views the Assembly forwarded the impeachment—Whether it is supported, is the only object of our enquiry—The cause has been ably argued on both sides.—

The President then read the first article.

The late Marshal, Mr. Clarkson, swears, that in a conversation he had with Mr. Hopkinson, (testimony of Mr. Clarkson read) the stress of the prosecution must depend on this testimony of Mr. Clarkson, he him­self [Page 57] does not state the suit of cloaths as a condition, or sine qua non, without which Mr. M'Clenachan was not to have the agency; several circumstances seem to con­firm what the Judge says, that he mentioned this mat­ter as a thought that had occurred to him, and by way of taking the opinion of his friend upon it—The Judge and Mr. Clarkson were at that time intimate friends— he took no notice of it, until after the Judge had com­plained against him. He was exceedingly disgusted at the agency not being given to Mr. M'Clenachan—it seems strange if he thought this had been made a con­dition that he made no mention of it in his complaints. Either the Marshal approved the prosecution or he did not—if he did not, why not say so. If he did, why not mention it to Mr. M'Clenachan, if he thought it a con­dition not countermanded—the story of want of oppor­tunity could not have been the reason, for he mentioned the agency—it would have required but a few words more to have mentioned the condition had there been one.

In the next place, tho' Mr. M'Clenachan does not re­collect any countermand, yet as the Judge gave the agency to Messrs. Meade & Fitzsimons, not only with­out receiving any compliment, but as no hint or sug­gestion was made that any such was expected, this looks like confirmatory of the representation made by the Judge. Mr. Clarkson in one part of his testimony is very positive, in another very cautious, so far as respects the mention of the suit of cloaths, he is entirely clear— as to any explanatory circumstances he does not remem­ber—He is asked, did the Judge request your opinion and advice upon the point? he does not recollect—If he is cautious in determining the complexion of the business, surely we ought to be in founding our opinion. —Indeed we should have had very little difficulty had it not been for the testimony of Mr. Lewis—but the conversation between him and the Judge happened a good while ago—a few words make a great difference— a gentleman cannot be supposed to recollect with an entire exactness—we cannot but consider Mr. Lewis as [Page 58] a secondary witness, and therefore cannot overrule the presumption arising in favour of the Judge upon Mr. Clarkson's testimony from the circumstances that have been mentioned—but here another question arises, quo animo? with what mind was this done—for a great deal depends upon the intent—every killing is not murder —on a dispassionate consideration of the character of the Judge, his general conduct in office, and all the circumstances we do not think there is any proof of corruption—we could have left this charge without any further animadversion had it not been for some doc­trines advanced by the counsel for the Judge, which we think proper to make some observations upon.—In an instant State it is of the highest importance, as we said before, that the streams of justice should be kept pure, and that the people should have a confidence in the integrity of the Judges.—Not only the taking a bribe, but even soliciting it, tho' not falling perhaps strictly within the definition of bribery would draw down the vengeance of the State—Whether for a Judi­cial officer or one that did not concern the administra­tion of justice, whether by a Judge sitting on the seat of Justice or this Council in their capacity as such; the office of a Vendue-Master is not a judicial office, but we should esteem it criminal for any member of this Council to accept a compensation for his vote to an appointment in that office.—The man who can best serve the public is the proper object of choice, it is enough that the office is an office of trust, whether judicial or not makes no difference—and we think the observation of the Attorney-General that the appointment of an agent is done by the Judge, as such, is well founded, and if we had been satisfied of the fact, that the Judge had either received or solicited a compensation in this consideration we should have been at no loss to have declared him guilty—and we take this opportunity to mention that we conceive it indelicate for a Judge to accept presents from persons who frequently have busi­ness [Page 59] before him, tho' no cause be then depending, such as owners of privateers.—In short the present should appear to be made to the MAN, and not to the OFFICER.

The President then read the second article.

The Judge acknowledges that he did make a mistake in the issuing the writ, and upon being informed of the error rectified it—to make a Judge answerable for the veracity of every assertion contained in the forms of process would be very unreasonable—I will not say how far a Judge may be answerable in a criminal prosecution for giving a judgment contrary to a plain law; but then it must appear that he acted wilfully wrong, and not from honest, tho' ill judged designs—but here was a point of some doubt.—The Judge supposed, and there was some colour for the idea that the law was merely directory; that he was to have recourse to the interven­tion of a survey only in case of uncertainty, and to in­form his conscience—but that where he was at no loss for the very nature of the article to determine it perishable, of course, that the step was unnecessary.—Salt is thus considered sometimes.—If for instance, insurance is made on it at sea, it is treated as a perishable article.— If a mere error of judgment was to be turned into a subject for criminal prosecution, we must, as was obser­ved by one of the learned counsel for the Judge, get infallible Judges. We are therefore at no loss to pro­nounce an acquittal upon this article, more especially as the mistake was rectified as soon as discovered.

The President then read the third article.

This charge has been considered by many to be more likely to endanger the Judge, and to occasion a sentence to his disadvantage, than the others.

The Judge answers that he took fees according to the former tables, and the practice established at his com­ing into office. Now, altho' the degree of punishment ought not to make any difference, nor enter into con­sideration where the matter is plainly proved, yet more caution becomes necessary in proportion to the conse­quences [Page 60] of conviction—in this case the penalty by the Constitution is very great.^*

There are in almost all offices compensatory as well as specific fees.—In fee laws, laws made for the regulat­ing the fees of officers, it is very difficult to enumerate all the services. In such cases compensatory fees must be allowed, or the necessary business will not be done. There is a great difference between exacting more than the specific fees, and asking fees for services where no­thing is provided.—But it is said that the law on which this charge is founded, intended to have excluded all other fees except the wheat. But every part of this law was not attended to. In a preceding paragraph it is said, that the fees of the said officers shall be esti­mated and paid according to the price of good mer­chantable wheat in the manner following, that is to say, the said fees as they were regulated by law or prac­tice under the late government of Pennsylvania before the first day of July one thousand seven hundred and seventy-six, shall from and after the publication of this Act be satisfied in good merchantable wheat; accounting and allowing that a bushel of such wheat, weighing at least sixty pounds, sold formerly in times of war and difficulty for ten Shillings. The fifth paragraph menti­ons that this former one shall extend to the Judge, Re­gister and Marshal of the Court of Admiralty.

It appears therefore in this very law, the principle of making a difference between specific and compensatory fees was adopted—formerly by an Act of Parliament, the [Page 61] Judges of the court of Admiralty in the then province of Pennsylvania, were allowed £. 15 sterling for every vessel above 100 tons, and £ 10 for every vessel below that burthen—as the same number of tons is mentioned in this Act of Assembly, as applied to the twenty-five bushels of wheat and the forty, it seems probable that this was intended in lieu of those sums. On this con­struction the law is consistent and complete, and the law and practice agree, and it must appear that the £ 1300 taken by the Judge exceeds what he was entitled to by this mode of computation—here were three causes; the first, libel to decide prize or no prize—that is the object of the law—then the claim by Mr. Morris—then the negroes; these are three as distinct causes as if they re­lated to different vessels. At this rate the fees would have amounted to £ 1320—but suppose the matter had not stood entirely on this ground, and that it had ap­peared the £ 1300 was a sum beyond what the Judge was entitled to, still the charge is not, that he received too much, but that he exacted too much. We do not say, that the Judge ought not to take care of his officers —But an inadvertence of this kind would not be a ground for rendering a man infamous for life. On looking into the authorities we found they all run in this stile— that the Judges exacted—that business was kept back and delays affected until the money was paid—suppose the court wrong, they ought not to be immediately pro­secuted in a criminal way, but complaint should be made, and if they will not rectify the mistake, then it will be proper to pursue in a course of justice—at the same time we take this opportunity to say, that the fees of the court of Admiralty have increased lately extreme­ly, not in the time of the present Judge; indeed, he took things as he found them; as to the agency I do not conceive it to be the spirit and meaning of the act of Assembly, that one should be appointed to every vessel where there are unrepresented shares—the holding of courts for ministerial purposes is wrong also—this practice has taken rise within four or five years—it's [Page 62] distressing to trade—all the ministerial business should be done at the holding of some court, or at chambers— the other mode is a strained construction of the meaning of holding a court—it is a matter that I am desired to mention, that the Judge direct the Register to prepare a book in which he is to enter all the items of the bills of costs—that people may always know whether they pay unreasonably—the Judge it seems trusted to the Re­gister, and the bill must have been made out in the lump, as it agrees exactly with no rule. When this is done, if on complaint made, errors are not rectified, there will be a proper ground for criminal prosecution. UPON THE WHOLE, WE ARE UNANIMOUSLY OF OPINION THAT THE JUDGE OUGHT TO BE ACQUITTED UPON ALL THE THREE CHARGES.

On Tuesday the 4th day of December, in the year of our Lord, 1792, and sixteenth of the Independence of the United States, the Representatives of the Freemen of the commonwealth of Pennsylvania, met at the State-house in Philadelphia, and proceeded to business.

ON the 7th they appointed John Swanwick, Thomas Forrest, John Chapman, John Hannum, Samuel Boyd, John Stewart, James Power, Nicholas Lutz, Jacob Eyerly, jun. George Woods, jun. John White, Abraham Hendricks, David Bradford, Albert Gallatin, James Johnston, Cadwallader Evans, Simon Spalding, Stacy Potts, Thomas Morton and William West, Esqrs. a committee to devise ways and means for the supplies of the current year.

On the next day John Canan of Huntingdon county was added to the same committee.

On the 4th of January following, a letter was re­ceived from the State-Treasurer, from which the follow­ing is an extract.

On the motion of Mr. Gallatin, seconded by Mr. Evans, the above letter was referred to the committee on ways and means to report thereon.

On the 8th the following letters from Mr. Nicholson, were presented to the Speakers of both Houses, read, and ordered to lie for consideration.

The following letters were written on this subject soon after—

The business progressed in this manner until the 3d of April, when the committee on ways and means made the following report, viz.

The committee on Ways and Means to whom were referred sundry letters and documents relative to the subscription to the Loan proposed by the United States, and the subsequent redemption of sundry certificates, formerly issued under the authority of Pennsylvania, and commonly called New-Loan, report on that subject—

That by a law passed on the 10th day of April 1792, amongst other provision made for the redemption and final discharge of sundry debts due by the common­wealth; in the sixth section, it is enacted, That if Con­gress shall on or before the first day of July next, re­new and again open the subscription to the loan hereto­fore proposed to the state creditors, or shall in any other manner or upon any other terms, provide for the assump­tion of the non-subscribed debts owing to such state cre­ditors, the holder or holders of any certificate or certifi­cates, subscribable to the subscription so renewed, or entit­led to the benefit of such other provision, shall be entitled to have and receive the nominal value of the said certi­ficate or certificates from the State-Treasurer, upon this condition and not otherwise: that they shall and do sub­scribe to the loan so renewed, or acquiesce in the terms of such other provision, and thereupon, on or before the first day of July next, transfer to the State-Trea­surer, for the use of the commonwealth, each and every [Page 84] the certificate and certificates which they shall receive from the United States, in consequence of such sub­scription, or all and singular the interests and benefits to be derived from such other provision, together with the proper evidences thereof.

That by the arrangements taken in consequence of the law of Congress, extending the terms of their former loan, no certificates could issue in favor of the subscrib­ers, prior to the 1st day of May 1793; whereupon, it having been agreed that the receipts given by the com­missioner of loan, to the subscribing state creditors, should be assigned to the commonwealth, and that the certificates from the Loan-office, should issue directly to the commonwealth; the business was conducted un­der the following regulations: When the holder of any state-certificate or certificates, wished to subscribe the same to the loan proposed by Congress, and to avail himself of the benefit of the above-mentioned law of the commonwealth, passed in April 1792, he presented such certificate or certificates, with an abstract of the same, specifying the number, date, by whom and to whom issued, and the amount of the principal and in­terest, to the Comptroller- General, who after examin­ation certified on the face of the abstract, that the cer­tificates were genuine and assumable. The abstract be­ing then presented to the commissioner of loan, and the certificates themselves deposited with him, the commis­sioner gave to the party a receitps for the same on the ab­stract. The abstract and receipt were then assigned to the commonwealth, and presented to the Register-Ge­neral and Comptroller-General for examination, and if approved, a certificate signed by the two officers, was sent to the Governor, stating the amount due to the party, and a warrant for the same, thereupon issued according to law.

That amongst other abstracts thus declared to be as­sumable by the Comptroller, which passed the several offices, and the nominal amount of which (including both principal and interest,) was consequently paid to the respective holders out of the State-Treasury, there [Page 85] were sundry certificates of that description commonly called New-Loan, and which were issued by virtue of an Act, entitled ‘An Act for the further relief of the public creditors, who are citizens of this state, by re­ceiving on loan certain debts of the United States of America, and for funding the same, and for paying the annual interest of such loans, and the interest of certain debts of this state, every six months,’ passed on the first day of March 1786; part of which Act was repealed by the Act, entitled ‘An Act to repeal so much of any Act or Acts of Assembly of this com­monwealth, as directs the payment of the New-Loan debt, or the interest thereof, beyond the 1st day of April next, and for other purposes therein mentioned,’ passed on the 27th day of March 1789, wherein it is enacted that the continental certificates received by the state by virtue of the former Act, shall be returned to the holders of New-Loan certificates, upon their deli­vering the same, and that "so much of every Act or Acts of General Assembly as directs or secures the pay­ment of the principal sum or sums, in the said certifi­cates or any of them mentioned, or of the interest there­of, beyond the term of four years, shall be, and the same is hereby repealed and made null and void."

That the total amount of the New-Loan certificates thus redeemed by the state, at their nominal value, in­cluding the interest, amounts to 63,075 dollars and 37 cents; 60,220 dollars and 41 cents of which, were sub­scribed in the name, and of course appear to be the pro­perty of John Nicholson.

The committee are of opinion that the Comptroller-General, in the above-mentioned transactions, has been guilty of a high misdemeanor:—

First. By certifying the assumable quantity of the New-Loan certificates; the greater part of the same being his own property.

Second, By passing and certifying the same to the Executive in the usual forms of office; thereby causing them to be redeemed.

[Page 86]The opinion of the committee on the first point, is founded upon the following considerations—

1st. They conceive, that since the Act of March 1789, above mentioned, the New-Loan certificates ceased to be a state debt; were not, therefore, within the assump­tion of, and could not be subscribed to the loan propos­ed by Congress.

2. Whatever the decision of the officers of the Trea­sury of the United States might be on the preceding position, as it was not, by law, the official duty of the Comptroller-General to decide on it, he ought not to have done so, when a decision given under the colour of office operated in his own favor, at the expence of the state.

3d. In certifying the New-Loan certificates to be assumable, he neither consulted the Register-General, nor communicated the transaction to the Governor; and as neither the abstracts on the face of which the assum­able quantity was certified, nor the official certificates on which warrants were issued, did discriminate the kind of debt that was redeemed; the checks provided by law were thereby destroyed, and the other officers of the state deluded into error.

4th. The Comptroller-General knew, by a former decision of the Secretary of the Treasury of the United States, that at all events the New-Loan certificates could not be recognized as assumable, unless an equal amount of continental certificates was delivered to the Secretary aforesaid; which no law authorised the Comptroller to do: and he was apprised that the payment of the inter­est to the subscribing state creditors and to the state, on account of the assumption, would have been suspended, when the time limited for receiving subscriptions to the former loan of Congress expired, had it not, upon investigation, appeared that no New-Loan certificates had been subscribed.

The opinion of the committee on the second point, arises from considering that, independent of the qu [...]s­tion, Whether the New-Loan certificates were within [Page 87] the assumption of the United States, they were not re­deemable by the Act of April 1792? and this appears from the following considerations—

1st. No funds were provided by the Act for the re­demption of those certificates.

2d. The sixth section of the Act can only be regard­ed as a proviso and exception to the preceding sections by which the redemption of certain descriptions of debts, which do not include the New-Loan certificates, were exclusively and solely contemplated.

3d. Even the sixth section, supposing it to stand alone, cannot admit of the construction given by the Compt­roller-General, as it designates only state-creditors, and by the existing laws of the commonwealth, the holders of New-Loan certificates are declared not to be such.

Having stated this ge [...]ral view of the subject, the committee deem it their duty to present the following resolutions to the consideration of the House.

Resolved, That John Nicholson, Comptroller-Gene­ral of this commonwealth, be impeached for a high misdemeanor in his office.

Resolved, That the Attorney-General be directed to institute a suit against the said John Nicholson, to recover, for the use of the commonwealth, the amount of the New-Loan certificates, which have been redeemed and paid at the Treasury of this state.

The committee in the course of their enquiries upon this occasion, have found reason to lament, that in the execution of the various, important and confidential du­ties, (embracing the emission of certificates and the care and management of other public property to an im­mense amount) which have from time to time been as­signed to the Comptroller-General, an adequate check has in few cases been provided, and, in fewer still, en­forced. They conceive, therefore, that the honor and interest of the state, require an early and effectual in­vestigation of the Comptroller's official transactions; and they would be wanting in their duty to the public and to themselves, were they not to offer an earnest re­commendation [Page 88] that the following resolution should be adopted.

Resolved, That a committee be appointed to examine, during the recess of the House, all the accounts and of­ficial transactions of the Comptroller-General of this commonwealth, and to report thereon at the next session of the Legislature.

APRIL 4.

A LETTER from Mr. Nicholson, was presented to the chair, and read, requesting that an investigation of his conduct may take place during the present session of the Legislature.

APRIL 5.

AGREEABLY to the order of the day, the report of the committee on ways and means, read the third instant, was read the second time.

The first resolution being under consideration, to wit.

Resolved, That John Nicholson, Comptroller-General of this commonwealth, be impeached for a high mis­demeanor in his office.

On the question, "Will the House agree to the same?"

The yeas and nays being called by Mr. Gallatin and Mr. Torrence, were as follow, viz.

• 1 Jacob Hiltzheimer,
• 2 Henry Kammerer,
• 3 George Latimer,
• 4 John Swanwick,
• 5 Thomas Britton,
• 6 Thomas Paul,
• 7 John Chapman,
• 8 Ralph Stover,
• 9 James Bryan,
• 10 Dennis Whelen,
• 11 Charles Dilworth,
• 12 John Hannum,
• 13 Samuel Sharp,
• 14 Joseph Work,
• [Page 89]15 Abraham Carpenter,
• 16 John Breckbill,
• 17 John Stewart,
• 18 Alexander Turner,
• 19 Thomas Lilly,
• 20 William M'Pherson,
• 21 Philip Gartner,
• 22 James Power,
• 23 George Cover,
• 24 Runnel Blair,
• 25 Paul Groscop,
• 26 Nicholas Lutz,
• 27 Peter Burkhalter,
• 28 Jacob Eyerly, jun.
• 29 Thomas Hariman,
• 30 Abraham Cable,
• 31 George Woods, jun.
• 32 Samuel Dale,
• 33 John White,
• 34 Christopher Labengeier,
• 35 Abraham Hendricks,
• 36 Daniel Leet,
• 37 Albert Gallatin,
• 38 Joseph Torrence,
• 39 James Johnston,
• 40 John Rea,
• 41 Isaiah Davis,
• 42 Joseph Tyson,
• 43 Cadwallader Evans,
• 44 John Shoemaker,
• 45 Stacy Potts,
• 46 Jacob Miley,
• 47 Christian King,
• 48 Simon Spalding,
• 49 John Canan, (Hunt.)
• 50 Thomas Morton,
• 51 John Oliver,
• 52 Joseph Gibbons,
• 53 William West.

• 1 Robert Hare,
• 2 Thomas Forrest,
• 3 John Lardner,
• 4 Samuel Boyd.

So it was determined in the affirmative.

And the second resolution being under considera­tion, viz.

2. Resolved, That the Attorney-General be directed to institute a suit against the said John Nicholson, to re­cover for the use of the commonwealth, the amount of the New-Loan certificates, which have been redeem­ed and paid at the Treasury of this State.

On the question, "Will the House agree to the same?"

It was determined in the affirmative.

In the afternoon of the same day the following pro­ceedings are recorded:—

Agreeably to the order of the day, the House resum­ed [Page 90] the consideration of the report of the committee on Ways and Means, read this forenoon.

And the following resolution being under considera­tion, viz.

3. Resolved, That a committee be appointed to ex­amine, during the recess of the House, all the accounts and official transactions of the Comptroller-General of this commonwealth, and to report thereon at the next session of the Legislature.

A motion was made by Mr. Evans, seconded by Mr. Tyson,

To postpone the consideration of the said resolution for the present.

On the question, "Will the House agree to the same?"

The yeas and nays being called by Mr. Swanwick and Mr. Hannum, were as follow, viz.

• 1 Thomas Lilly,
• 2 George Woods, jun.
• 3 Joseph Tyson,
• 4 Cadwallader Evans.

• 1 Jacob Hiltzheimer,
• 2 Benjamin R. Morgan,
• 3 Henry Kammerer,
• 4 George Latimer,
• 5 John Swanwick,
• 6 Robert Hare,
• 7 Thomas Forrest,
• 8 Thomas Britton,
• 9 Thomas Paul,
• 10 John Lardner,
• 11 John Chapman,
• 12 James Bryan,
• 13 Dennis Whelen,
• 14 Charles Dilworth,
• 15 John Hannum,
• 16 Samuel Sharp,
• 17 Samuel Boyd,
• 18 Joseph Work,
• 19 Abraham Carpent [...],
• 20 John Breckbill,
• 21 John Stewart,
• 22 Alexander Turner,
• 23 William M'Pherson,
• 24 Philip Gartner,
• 25 James Power,
• 26 George Cover,
• 27 Paul Groscop,
• 28 Nicholas Lutz,
• 29 Jacob Eyerly, jun.
• 30 Thomas Hartman,
• 31 Abraham Cable,
• 32 Samuel Dale,
• 33 John White,
• 34 Christopher Labengeier,
• 35 Abraham Hendricks,
• 36 Thomas Stokely,
• [Page 91]37 Daniel Leet,
• 38 Albert Gallatin,
• 39 Joseph Torrence,
• 40 James Johnston,
• 41 John Rea,
• 42 Isaiah Davis,
• 43 John Shoemaker,
• 44 Stacy Potts,
• 45 Jacob Miley,
• 46 Christian King,
• 47 Simon Spalding,
• 48 John Canan, (Hunt.)
• 49 Thomas Morton,
• 50 John Oliver,
• 51 William West.

So it was determined in the negative.

A motion was then made by Mr. Hare, seconded by Mr. Morgan,

To amend the said resolution so as to read as fol­lows, viz.

Resolved, That [...] Commissioners be appointed by law to examine all the official accounts and transac­tions of the Comptroller-General of this commonwealth, and to report thereon at the next session of the Legis­lature.

On the question, "Will the House agree to the same?"

The yeas and nays being called by Mr. Swanwick and Mr. Eyerly, were as follow, viz.

• 1 Benjamin R. Morgan,
• 2 Robert Hare,
• 3 Thomas Forrest,
• 4 John Lardner,
• 5 Abraham Carpenter,
• 6 John Breckbill,
• 7 John Stewart,
• 8 Alexander Turner,
• 9 Thomas Lilly,
• 10 William M'Pherson,
• 11 Philip Gartner,
• 12 George Woods, jun,
• 13 Joseph Tyson,
• 14 Cadwallader Evans,
• 15 John Shoemaker,
• 16 John Canan, (Hunt.)

• 1 Jacob Hiltzheimer,
• 2 Henry Kammerer,
• 3 George Latimer,
• 4 John Swanwick,
• 5 Thomas Britton,
• 6 Thomas Paul,
• 7 John Chapman,
• 8 James Bryan,
• 9 Dennis Whelen,
• 10 Charles Dilworth,
• 11 John Hannum,
• 12 Samuel Sharp,
• [Page 92]13 Samuel Boyd,
• 14 Joseph Work,
• 15 James Power,
• 16 George Cover,
• 17 Paul Groscop,
• 18 Nicholas Lutz,
• 19 Jacob Eyerly, jun.
• 20 Thomas Hartman,
• 21 Abraham Cable,
• 22 Samuel Dale,
• 23 John White,
• 24 Christopher Labengeier,
• 25 Abraham Hendricks,
• 26 Thomas Stokely,
• 27 Daniel Leet,
• 28 Albert Gallatin,
• 29 Joseph Torrence,
• 30 James Johnston,
• 31 John Rea,
• 32 Stacy Potts,
• 33 Jacob Miley,
• 34 Christian King,
• 35 Simon Spalding,
• 36 Thomas Morton,
• 37 John Oliver,
• 38 William West.

So it was determined in the negative.

And the original resolution recurring.

On the question, "Will the House agree to the same?"

The yeas and nays being called by Mr. Gallatin and Mr. Swanwick, were as follow, viz.

• 1 Jacob Hiltzheimer,
• 2 Benjamin R. Morgan,
• 3 Henry Kammerer,
• 4 George Latimer,
• 5 John Swanwick,
• 6 Robert Hare,
• 7 Thomas Forrest,
• 8 Thomas Britton,
• 9 Thomas Paul,
• 10 John Lardner,
• 11 John Chapman,
• 12 James Bryan,
• 13 Dennis Whelen,
• 14 Charles Dilworth,
• 15 John Hannum,
• 16 Samuel Sharp,
• 17 Samuel Boyd,
• 18 Joseph Work,
• 19 Abraham Carpenter,
• 20 John Breckbill,
• 21 John Stewart,
• 22 Alexander Turner,
• 23 Thomas Lilly,
• 24 William M'Pherson,
• 25 Philip Gartner,
• 26 James Power,
• 27 George Cover,
• 28 Paul Groscop,
• 29 Nicholas Lutz,
• 30 Jacob Eyerly, jun.
• 31 Thomas Hartman,
• 32 Abraham Cable,
• 33 George Woods, jun.
• 34 Samuel Dale,
• 35 John White,
• 36 Christopher Labengeier,
• [Page 93]37 Abraham Hendricks,
• 38 Thomas Stokely,
• 39 Daniel Leet,
• 40 Albert Gallatin,
• 41 Joseph Torrence,
• 42 James Johnston,
• 43 John Rea,
• 44 Joseph Tyson,
• 45 Cadwaller Evans,
• 46 John Shoemaker,
• 47 Stacy Potts,
• 48 Jacob Miley,
• 49 Christian King,
• 50 Simon Spalding,
• 51 Thomas Morton,
• 52 John Oliver,
• 53 William West.

So it was unanimously determined in the affirmative.

Whereupon,

Ordered, That Mr. Morgan, Mr. Gallatin and Mr. Evans, be a committee for the purposes contained in the said third resolution.

It was then, on motion,

Ordered, That Mr. Swanwick, Mr. Morgan, Mr. Gallatin, Mr. Johnston and Mr. Evans, be a committee to draft articles of impeachment against John Nicholson, Comptroller-General, for a high misdemeanor in his office, and to report the same to this House.

On the 6th Mr. Nicholson wrote the two following letters—

On the 8th he wrote the following letters—

On motion,

Ordered, That the Clerk of this House be directed to present to the Senate a copy of the third resolution contained in the report of the committee on ways and means, and adopted by this House April 5th instant, on the subject of appointing a committee to examine, during the recess of the House, all the accounts and official transactions of the Comptroller-General of this commonwealth, and to report thereon at the next session of the Legislature.

APRIL 9.

THE committee reported the first five articles of impeachment, they are omitted here, as they were consi­derably altered by subsequent revisions, I will give them as they were read before the Senate on the opening of the trial.—The following resolves were reported at the same time, being attached to the articles, to wit.

Resolved, That the foregoing articles of impeach­ment be engrossed and signed by the Speaker, and that Mr. Morgan, Mr. Swanwick, Mr. Gallatin, Mr. John­ston and Mr. Evans be a committee to exhibit the same to the Senate, and on the part of the House of Repre­sentatives to manage the trial thereof.

Resolved, That the Attorney-General and such other counsel as the managers may think proper, be requested to give their attendance at the trial aforesaid, and assist thereat on behalf of the House of Representatives.

One of Mr. Nicholson's letters which had been present­ed to the Speaker, and laid for consideration, was read a se­cond time, whereupon it was resolved that he should be furnished with copies of the following letters and docu­ments.

Together with a Report of the Register-General to the Legislature, Book A, which contains the different species of public debt, which had been redeemed by the state, and for whom.

Although the House had passed the resolution that Mr. Nicholson should be furnished with copies of the foregoing letters and documents, from page 96, inclu­sively, he was nevertheless neglected, and had been un­der the necessity of renewing his application on the 25th February 1794, as I will shew in its proper place.

The Cerk of the Senate being introduced, presented to the chair, an extract from the Journal of that House; and having withdrawn, the same was read, as follows, viz.

Mr. John Oldden appeared agreeable to summons for that purpose served on him, and being duly affirmed, answered some interrogatories, and had liberty to with­draw.

He attended the same afternoon, and had been re­quested to give his attendance the next day for the same purpose.

APRIL 10.

THE same witness attended again, answered certain interrogatories, and was finally discharged.

The Articles of Impeachment were read the second time.

The Clerk of the Senate being introduced, presented to the chair, an extract from the Journal of that House; and having withdrawn, the same was read, as follows, viz.

A motion was made by Mr. Hare, seconded by Mr. Lardner, to postpone the consideration of the Articles of Impeachment, to introduce the following resolutions in lieu thereof, viz.

Resolved, That this House does not confide in the ad­ministration of John Nicholson, Comptroller-General of this commonwealth.

Resolved, That the Governor be requested to remove John Nicholson from the office of Comptroller-General of this commonwealth, and that this resolution be sent to the Senate for their concurrence.

Mr. Gallatin observed on this question, that he would have moved for the removal of Mr. Nicholson before that time, were it not for the existing settlement of accounts between the United States and the individual states, that he well knew that there was no man in the common­wealth so capable of doing that business as Mr. Nichol­son; therefore he would vote against the above resolu­tions. After which the question for postponement was put, and determined in the negative.

The articles then recurring, after sundry alterations and amendments, they were adopted, and it was order­ed, that they should be engrossed for a third reading.

APRIL 11.

THE articles being engrossed, were read the third time, signed by the Speaker, and sent by five gentlemen to the Senate.

Mr. Nicholson sent the following letters to the Senate and House of Representatives the same day—

One entry in the minutes of this day, and another of the eighth, respecting Mr. Nicholson's letters, are worthy of observation. It is customary for letters and docu­ments, presented to the Speaker, to be noted on the mi­nutes, so as to inform the reader of the purport and contents of such letters or documents, but in the in­stances here alluded to, no intimation is given of their contents, purport, request or any of the usual formal­ities, but, "A letter from John Nicholson was read, and ordered to lie on the table."

A motion was made by Mr. Gallatin, seconded by Mr. Evans, and agreed to, That the committee appoint­ed the 5th to examine the accounts and official trans­actions of the Comptroller-General, or any member of the said committee that shall have power to examine, at all seasonable hours, all the books, accounts, vouch­ers, certificates and official documents whatsoever, which may be in the custody of either the Comptroller-Gene­ral, Register-General or the State-Treasurer, to take [Page 110] copies of the same, or any part thereof, and to require any explanations concerning the same.

That the said committee, or a majority of them, shall have power to send for persons and papers, and to sum­mon any person or persons before them, for the purpose of giving testimony upon oath or affirmation, on the subject of the enquiries of the said committee.

That the said committee shall have power to employ such clerks to assist them, as they shall think necessary.

The committee of accounts reported eight hundred dollars in favor of the Chairman, Mr. Morgan, on ac­count of the expences attending the investigation of the official transactions of the Comptroller-General during the recess, he to be accountable.

Messrs. Swanwick and Gallatin were appointed to in­form the Senate that the House of Representatives were ready to close the present session. After Mr. Swanwick had reported his performance of that service, he observ­ed, that the impeachment against the Comptroller was of very great importance, and that probably some of the committee might fall sick, and thereby the business of the investigation might be retarded; he therefore moved that another member might be added to the com­mittee; this motion, not being seconded, was lost.

Adjourned to the 27th August following.

AUGUST 27, 1793.

THE Legislature met pursuant to adjournment.

AUGUST, 29.

THE committee appointed for the purpose, April 5th last, reported additional articles of impeachment against John Nicholson, Comptroller-General of the com­monwealth of Pennsylvania, which were read;

[Page 111]Whereupon, on motion,

Ordered, That Tuesday next, the 3d of September, be assigned for the second reading of the said articles, that they be the order for that day, and that a sufficient number of copies be printed in the mean time, for the use of the members.

It was then, on motion,

Resolved, That the Speaker issue his summons, com­manding the attendance of Blair M'Clenachan, and Mat­thew M'Connell, to appear at the bar of the House on Tuesday next, to give testimony on the subject of the articles of impeachment against John Nicholson, Compt­roller-General of this commonwealth.

The summons were accordingly issued.

SEPTEMBER 2

THE committee appointed to examine, during the recess of the House, all the accounts and official trans­actions of the Comptroller-General, made report in part; which was read,

Whereupon, on motion,

Ordered, That a sufficient number of copies be print­ed for the use of the members, and that it be annexed as an appendix to the Journal of this House.

It may be proper to observe, that the reading was dispensed with, and the Report sent to the printers, where it remained for a considerable time, say 2 months at least, before it was finished. It is as follows, together with Mr. Nicholson's answer to the objectionable parts. Read in the House of Representatives January 9, 1794 —and ordered to lie on the table, as usual.

SEPTEMBER 3.

THE additional articles of impeachment were read the second time—Major M'Connell appeared at the bar of the House, and being duly sworn, answered the following interrogatories.

Question by Mr. Gallatin. Have you been possessed of any New-Loan certificates in the year 1788?

Answer. I had a quantity of New-Loan certificates about that time, but at present cannot ascertain their amount or numbers.

By the same. Did you sell a certificate of that des­cription amounting to £. 3275:19:4 to Blair M'Clena­chan, if yea, please to tell at what time?

Ans. It appears from my book, that I delivered such a certificate to Mr. M'Clenachan, the 23d day April, 1788, which had been issued in my own name. I de­livered him many New-Loan certificates about that time.

Ques. by Do. Do you know what he did with that cer­tificate whose amount was £. 3275:19; 4, did he sell it, or did he exchange it?

Ans. Impossible for me to tell what Mr. M'Clenachan had done with it, the certificate was his own after he got it from me. I believe an exchange took place be­tween him and the Comptroller-General, but in this I am not positive.

Question by Mr. Evans. Have you a list of the names of the persons to whom the certificates which you then had, were originally granted?

Ans. I have a book at home, in which I have entered their amounts, &c. but at this time I cannot be par­ticular.

Ques. by Mr. Gallatin. Had you any other New-Loan certificate of the same amount issued in your name, about that time, before that time, or since that period?

[Page 186] Ans. Not likely that I should have another of the same amount in my own name, it is impossible for me to ascertain.

Question by Mr. Evans. Can you tell the number of that certificate, for £. 3275:19:4?

Ans. I cannot ascertain it, not having the No. of that one in my book.

Ques. by Mr. Gallatin. Can you ascertain the time when this certificate was issued, and whether it was an original one, or issued for a number of certificates, com­monly called consolidating?

Ans. I am inclined to think it had been issued in exchange for others by the means last mentioned: but I am not certain as to that, nor to the time when issued.

Mr. Gallatin observed he had no more questions to ask, and that the witness might retire.

Ques. by Mr. Evans. Can you furnish us with a list of the names of the persons to whom issued, numbers, dates and amounts of the certificates which you deliver­ed to Blair M'Clenachan about the time alluded to?

Ans. I have a book, from which I will extract such dates, numbers, and amount as far as I have entered them, and will transmit a list to the House as soon as possible.

After which the witness retired.

Whereupon it was resolved that the further considera­tion of the said additional articles of impeachment be postponed till the next day.

And the Speaker issued his summons to accelerate the attendance of Blair M,Clenachan to give testimony on these articles against Mr. Nicholson.

It was on motion, Ordered that Messrs. Morgan, Evans and Gallatin, the three managers, should procure attest­ed documents from Mr. Thomas Smith, Commissioner of Loans, to answer the purposes of evidence on these articles against the Comptroller.

The committee got no documents from him, at that time, he was in the country for fear of the yellow fever [Page 187] which then raged in the city, and carried off about 18 persons per day.

Three gentlemen, were appointed a committee by the Senate on the 2d to confer with a committee from the House of Representatives on the expediency of an adjournment of the Legislature.

The House of Representatives appointed five mem­bers to join the committee of the Senate.

SEPTEMBER 4.

THE committee appointed to confer with a commit­tee of the Senate on the expediency of an adjournment of the Legislature, made report; which was read, as fol­lows, viz.

That in the conference held by your committee with the committee of the Senate, they declared that they did not conceive that the House of Representatives would be ready to take a question upon the expediency of an adjournment until they knew what time was fixed by the Senate for the trial of the charges brought by the House against John Nicholson, Comptroller-General—Your committee thought it their duty also to mention, that although the House could not controul the decision of the Senate on that point, yet, they knew, they were ready at any time to support the charges and desirous that the trial should come on immediately, to which they added several reasons to urge the propriety of a decision on that business taking place at this session of the Legislature.

Your committee submit the following resolution—

Resolved, That the Senate be requsted to fix the time at which they mean to try the charges brought by the House of Representatives against John Nicholson, Comp­troller General, and to give notice thereof to the House.

Ordered to lie on the table.

Mr. Edie, a committee from the Senate, being in­troduced, presented to the chair an Extract from the [Page 188] Journal of that House; and having withdrawn, the same was read, as follows, viz.

The committee of accounts reported, a resolution, that a warrant be drawn in favour of Benjamin R. Morgan for 492 dollars and 75 cents, being a balance due the committee of investigation for their services and expences.

Agreeably to the order of the day the additional ar­ticles were read the third time and adopted, and it was ordered that they should be engrossed and signed by the Speaker.

Mr. Blair M'Clenachan having been summoned pre­vious to the third instant, when Mr. M'Connell gave his evidence, and not appearing, a motion had been made to compel his attendance by an attachment, whereupon some argument had ensued, and it was con­ceded, that he did not absent himself thro' contumacy, but through a belief and expectation that the General As­sembly had adjourned on account of the disorder, con­sequently no further notice had been taken of his non-attendance.

He appeared this day, and had been sworn.

Question by Mr. Evans. Did you purchase or receive any New-Loan certificates from Matthew M'Connell?

Answer. I did, to a great amount.

Ques. by ditto. To what amount were any of these certificates, or do you recollect any New-Loan certifi­cate [Page 189] received from him to be for the sum of 3 [...] 19s. 4d.?

Ans. I remember to have had several.

Ques. Has there been any such in your name, or in the name of Mr. M'Connell?

Ans. My name! Mr. M'Connell's name!

Here the witness appeared somewhat embarrassed, not knowing the drift of the question.

Mr. Gallatin rose, and said he would put the witness right, saying, "I will mention a circumstance, Do you remember that a large New-Loan certificate had been issued about the time alluded to, for the sum of £. 5000 or thereabouts; that the said certificate had been can­celled the next day, and two certificates issued in lieu thereof, the aggregate amount of which was £. 5000, as aforesaid; that one of these certificates had been for £. 3275:19:4, and the other for the balance, do you remember any of these circumstances?"

Ans. I perfectly recollect that circumstance, and that I purchased the larger certificate, which was for 3275l. 19s. 4d, I believe.

Question by Mr. Evans. Did you at any time sell that certificate, or any other of the same kind?

Ans. Not to my knowledge, I do not remember.

Question by Mr. Gallatin. Do you remember to have sold that large certificate at any time, or to have ex­changed it; if you have, please to tell to whom, and what did you receive for the same?

Ans. I delivered it to the Comptroller-General to get an equivalent in continental certificates, as well as I can remember;—

Question by Mr. Hare. At what time did this trans­action take place?

Before the witness had time to answer this question, Mr. Gallatin said he would mention a circumstance which probably would put the witness right, and ob­served by saying, "Do you recollect having certificates which were issued between the 1st of Sept. 1777 and 1st March, 1778, and that the holders were displeased at [Page 190] parting from these certificates on the same terms, and conditions as they parted from the New-Loan certifi­cates?"

Ans. I perfectly recollect that circumstance, and that I did not part from those certificates, of which I had been possessed, when I exchanged my New-Loans.

Ques. by Mr. Gallatin. When Mr. M'Clenachan had subscribed the New-Loan certificates, did he, or did he not subscribe those which had been issued between the 1st September 1777, and the 1st of March 1778?

Ans. No, I kept them to the last.

Ques. by ditto. Did Mr. M'Clenachan receive an equi­valent in continental certificates from the Comptroller for the last described certificate for £. 3275:19:4, or did he (Mr. M'Clenachan) subscribe it in his own name to the Loan of the United States?

Ans. I received an equivalent in continental certifi­cates, as well as I can recollect, for all that I brought to the Comptroller's office.

Ques. by Mr. Hare. Can Mr. M'Clenachan ascertain the time when this transaction happened?

Ans. A short time before the Loan was closed.

Ques. by Mr. Forrest. Did Mr. M'Clenachan sell any certificates to the Comptroller-General, or to any other person?

Ans. I never sold any, I delivered all that I had to the Comptroller-General, and received continental cer­tificates in lieu of of them.

Retired.

After the foregoing ceremony of adopting the two additional articles, the report of the joint committee on the subject of adjournment was read the second time, and Resolved, that the Senate be requested to fix the time at which they mean to try the charges brought by the House of Representatives against the Comptroller, and to give notice thereof to the House.

A letter from Mr. Matthew M'Connell was presented to the chair, the reading of its enclosure dispensed with, [Page 191] and it was referred to the committee appointed to man­age the trial against Mr. Nicholson.

The enclosure was a list of New-Loan certificates delivered by him to Mr. M'Clenachan, in the years 1788 and 1789, amounting in the whole to £. 16035:11:5.

An improper statement of Mr. M'Connell's evidence appearing in one of the daily papers, he wrote the fol­lowing letter to the printer which was published in the same paper.

The two additional articles were brought in engros­sed, were compared at the table, signed by the Speaker, and sent to the Senate by five members; one of this committee addressed the Senate in the same words as those published page 108.

Captain Duncan, the chief Clerk in Mr. Nicholson's office wrote the following letter.

SEPTEMBER 5.

THE Speaker drew a warrant for 300 dollars in fa­vour of Mr. Morgan, to be paid as retaining fees to Messrs. Wilcocks, Rawle, and Ingersoll, as Counsel for the State on the impeachment of the Comptroller-Ge­neral.

The Clerk of the Senate being introduced, presented to the chair certain extracts from the Journal of that House; and having withdrawn, the same were read, as follow, viz.

DECEMBER 3, 1793.

THE Legislature met according to the provision for that purpose in the Constitution.

DECEMBER 5.

MR. Nicholson wrote the following letter to the Se­nate:—

DECEMBER 14.

THE lower House resolved to take into consideration the state in which the Impeachment of John Nicholson, was left at the close of the late session.

DECEMBER 20.

AGREEABLY to the order of the day, the House resolved itself into a committee of the whole, in order to take into consideration the Resolution proposed by Mr. Evans, seconded by Mr. Tyson, relative to the im­peachment of John Nicholson, Comptroller-General, by the late House of Representatives.

Mr. Speaker left the chair, and Mr. Wynkoop was placed therein.

After some time spent in the business,

The Chairman left the chair and the Speaker resumed it.

[Page 195]The Chairman then reported a Resolution, which was read,

And on motion, and by special order, the same was read the second time, and adopted, as follows, viz.

Resolved, That it appears that the impeachment by, and in the name of the House of Representatives, and in the name of the People of Pennsylvania, for sundry High Misdemeanors, is now depending against John Nicholson, Comptroller-General of this commonwealth.

On motion of Mr. Swanwick, seconded by Mr. Evans,

Resolved, That managers be appointed on the part of this House to conduct the prosecution of the impeach­ment of John Nicholson, Comptroller-General of this commonwealth.

Ordered, That Mr. Swanwick, Mr. B. Morgan, Mr. M'Lene, Mr. Evans, and Mr. Bowman be a committee for that purpose.

On motion of Mr. Evans, seconded by Mr. J. Shoe­maker,

Resolved, That the Attorney-General and such other counsel as the managers may think proper, be requested to give their attendance at the trial aforesaid, and assist thereat on behalf of the House of Representatives.

DECEMBER 24.

THE committee appointed to manage the trial were authorised to send for persons and papers, and to exa­mine witnesses upon oath or affirmation.

JANUARY 9, 1794.

MR. Nicholson's long letter was presented to the Speaker of the House of Representatives—which see from page 111 to page 169, mixt with the Report of the Committee of Investigation.

[Page 196]Agreeably to notice given him, he came to the Senate at a quarter of an hour before noon, the Speaker informed the Senate that the hour was approaching when it should be necessary for him to direct the Ser­geant-at-Arms to acquaint John Nicholson, Esq Compt­roller-General of the commonwealth that he should ap­pear before the Senate to answer the charges or articles of impeachment exhibited against him by the late House of Representatives.

A motion was made by Mr. Hoge, seconded by Mr. Kennedy, that the Senate should adjourn their Legisla­tive business, in order to assume their judicial capacity, some authorities were cited to establish this on the same footing as the British house of lords adjourn from the Parliament-house to Westminster hall to sit in their judicial capacities on similar occasions. Messrs. Bing­ham and Smith were against that mode, the latter said he hoped the Senate would not adjourn, for he observed that if they should adjourn, there would be no Senate: Mr. Hoge's motion was put and negatived.

Mr. Bingham then moved that the Sergeant-at-Arms be directed to notify Mr. Nicholson to walk in. The motion was agreed to, the Comptroller walked in, being unattended by any person, bowing to the chair, and then to the persons on the right hand, and on the left.

A table covered with green cloth, and a chair was placed in the middle of the Senate-chamber opposite the Speaker's chair, to which Mr. Nicholson was shewn by one of the gentlemen of that body, and he was de­sired by Mr. Bingham to sit down; the Clerk of the Senate read the articles of impeachment together with a resolution of the House of Representatives respecting an error in the said articles—The ceremony of reading these documents, being over, Mr. Nicholson rose from his seat, and the Speaker asked him "what he had to say." Mr. Nicholson answered, "that he wanted a copy of the articles, and time to put in his answer to them." Mr. Nicholson was requested to repeat his de­mand, [Page 197] for the Speaker and other Members did not hear him, a sudden motion of feet in the gallery preventing them: Mr. Nicholson in [...] voice considerably raised, re­peated his request.

Whereupon the Speaker desired him to mention his time.

Mr. Nicholson answered, and said, "that to indulge his own feelings he should mention a very short day, but unfortunately for him his counsel were engaged in the Supreme Court, now in session; that the Attorneys on the opposite side were likewise engaged in the same court, but that he required only till Wednesday (the fifteenth) next to put in his answer."

Mr. Bingham moved that Mr. Nicholson be permitted to withdraw whilst the Senate were deliberating on the question. The motion was agreed to Mr. Nicholson withdrew on being told by the Speaker that he might do so.

Mr. Kennedy remarked, that altho' he was for the adjournment, he was against mentioning any thing res­pecting the last vote, i. e. granting Mr. Nicholson per­mission to withdraw, for he looked upon that as very improper, inasmuch as that officer enjoyed every privi­lege of going where, and of doing what he pleased, he therefore hoped that no mention would be made of it on the Journal of the House; a suspension from office being all that the Sena [...]e had their power.

Mr. Speaker put the question whether the Senate were agreed to allow Mr. Nicholson his request; and they were unanimous in their assent.

Mr. Bingham moved that the Sergeant-at-Arms be directed to request him to walk in, and to hear the determination of the Senate. This motion was agreed to, Mr. Nicholson appeared, and the Speaker informed him that his request was granted by the Senate.

After which Mr. Nicholson withdrew. The whole time occupied in this ceremony did not exceed 45 minutes, during the time that officer stood this sudden, and novel shock with firmness and propriety.

JANUARY 15.

MR. Nicholson, attended by two of his Counsel, at the hour of twelve, went to the Senate, put in his an­swer to the articles of impeachment, and named his Attorneys; whereupon Wednesday the 19th February, was appointed by the Senate for trying the charges.

On motion of Mr. Evans, of the House of Representa­tives, seconded by Mr. Tyson, and read, as follows, viz.

Resolved, That the committee, or any member there­of, to whom was referred the report of the committee appointed to examine during the recess of the late House of Representatives, the accounts and official transactions of the Comptroller-General, shall have power to examine at all seasonable hours, all the books, accounts, vouchers, certificates, and official documents whatever, which may be in the custody of the said Comptroller-General, the Register-General, or the State-Treasurer; to take copies of the same or any part thereof, and to require any explanation concern­ing the same.

FEBRUARY 5.

THE House of Representatives agreed to a replicati­on to the answer of the Comptroller, to the articles of impeachment, and appointed a committee of five mem­bers to present the same to the Senate.

FEBRUARY 15.

The committee of accounts of the House of Repre­sentatives, reported 100 dollars to be due to the Door-keeper of the committee of investigation for attending [Page 199] on them during the recess, a small sum for their news­papers, stationary, &c.

Six hundred dollars were voted to be given to the three Attorneys concerned in managing the prosecution against the Comptroller-General.

FEBRUARY 19.

THIS being the day appointed for the trial of the Comptroller. The same came on in the Senate-chamber, and was postponed to the 26th; in consequence of a letter signed by William Lewis and Jared Ingersoll, Esqrs. and directed to the Speaker of the Senate, requesting a postponement of the trial on account of court business.

The House of Representatives appointed a com­mittee of five members to prepare and report such rules, as in their opinion, ought to be observed, in conducting the trial of the articles of impeachment a­gainst the Comptroller-General, and then depending be­fore the Senate.

FEBRUARY 20.

THEY resolved to hire an additional Attorney.

FEBRUARY 25.

THE committee appointed to manage on the part of this House the prosecution of the trial of the articles of impeachment against John Nicholson, reported, That the Senate postponed the trial of the said articles from Wednesday the nineteenth instant until Wednesday the twenty-sixth instant.

The committee appointed for the purpose, February 19th instant, made report; which was read,

[Page 200]And on motion and by special order, the same was read the second time, and adopted, as follows, viz.

The committee appointed to prepare and report rules to be observed on the part of this House, on the trial of the articles of impeachment against John Nicholson, now depending before the Senate, do agree to the fol­lowing resolutions for consideration and adoption of the House.

Resolved, That the House of Representatives will set at such time and times as the Senate may fix, for proceeding upon the trial of the articles of the im­peachment of John Nicholson, resolve itself into a com­mittee of the whole House, and in that capacity at­tend in the Senate-chamber during the said trial.

Resolved, That the committee appointed to manage the said trial on the part of this House, do report from time to time the progress that shall be made therein, and the final determination of the Senate thereon.

IN the morning of Wednesday the 26th February, the House of Representatives of the commonwealth of Pennsylvania met pursuant to adjournment: the fol­lowing letter was presented to the Speaker.

The Clerk then informed the House that he had fur­nished the Comptroller-General with copies of such papers as were in his possession, and some of those pa­pers alluded to in the Comptroller-General's letter, were presented to the committee appointed to manage his trial before the Senate, and consequently were not in the power of the Clerk of this House.

A motion was made by Mr. Bowman, seconded by Mr. Kelly, and adopted, as follows, viz.

Resolved, That the Speaker be authorised to draw a warrant for three hundred dollars in favor of Samuel Dexter, Esquire, employed as Counsel on behalf of the commonwealth, to assist in the prosecution and tri­al of the impeachment of John Nicholson, Comptrol­ler-General of the commonwealth of Pennsylvania, now depending before the Senate; whereupon,

The Speaker signed a warrant for three hundred dollars in favor of the said Samuel Dexter, Esquire, MEMBER OF CONGRESS FROM MASSACHUSETTS.

At a quarter before 12 o'clock the Senate ordered their Sergeant to call the court, which he did by read­ing the following words—

"O yes! O yes! O yes! Whereas charges of high misdemeanors have been exhibited by the House of Representatives of the commonwealth of Pennsylvania, in the name of themselves, and of the people of Penn­sylvania, against John Nicholson, Comptroller-General of said commonwealth; all persons concerned may give their attendance and they shall be heard."

The members of the House of Representatives at­tended; Mr. Nicholson and his Counsel, Messrs. Lewis, Bradford, Tilghman, Higginson and Gibson were seated [Page 202] on the west side of a great table which was placed in the middle of the hall. The managers and their Counsel, Messrs. Wilcocks, Rawle, Ingersoll and Dex­ter took the east side of the said table.

The Speaker and members of the Senate were seated on the south side of the room, and looked to the north, their seats having been raised and brought into a nar­rower compass for the purpose of making room for the members of the lower House, and for spectators of respectability who might attend.

The Speaker addressed Mr. Nicholson, and informed him, that every indulgence in the power of the Senate should be granted to him, and to his Counsel, that the Secretary should issue subpoenas for witnesses, give him copies of any papers in possession of the Senate, and allow him any other privilege not incompatible with the nature of the misdemeanors wherewith he stood charged.

Mr. Nicholson bowed to him, and sat down to write.

The Secretary of the Senate read the following

Second day of the trial. THURSDAY, FEBRUARY 27.

AT 10 minutes after the hour of eleven the conside­ration of legislative business was postponed during pleasure, in order that the Senate might sit in their judicial capacity.

The Court being called:—

Mr. Morgan resumed his argument respecting the difficulty which occurred in the Act of Congress grant­ing no certificates until March, 1793, and the Act of the 10th April, 1792, requiring a transfer before the first of July, 1792, and adverted to the necessity of an arrangement in consequence.

He observed that the actions of the Comptroller-Gene­ral were contrary to his (the Comptroller's) own opinion respecting the redeemability of the certificates in ques­tion, and that this could be manifest from the letters to be produced, which were written by that officer, by the Register-General and other public officers—for this purpose he began with the following letter.

The letter from the Governor to Mr. Hamilton, page 96, 97:—

And the letter from Mr. Hamilton to the Governor, page 97, 98, were then read, with applicable observa­tions on each.

The arrangement made in consequence of the fore­going took place, and the Comptroller and Register were to certify the genuine and assumable quality of the debt, the party after assigned to the Treasurer, a cer­tification was made to the Governor, who issued his warrant on the Treasury for payment.

That the Comptroller-General certified New-Loans to be genuine and assumable he produced the abstracts of Thomas Hale, Joseph Honeycomb, and Alexander Addison.

Question by Mr. Lewis. To whom were they certified to be genuine and assumable?

Ans. There is no direction, suppose to Mr. Smith.

Mr. Igersoll observed that the abstracts on the table, were sent to him from the Loan-Office of the U. States.

Mr. Morgan. This certification must be in his official capacity, as he could not do it in any other way, by which he has transgressed the bounds of his duty, he was not warranted in so doing, if the certificates were [Page 218] not assumable. He referred to the communications be­tween the officers of the general and state governments.

Whatever might have been the opinion of Mr. Ha­milton before he had seen the law, his sentiments were otherwise after he did see it.

He then read the letter from Mr. Hamilton to Mr. Dallas, page 76-7-8-9, commenting as he went along; —observing that the New-Loans were not issued for services or supplies but for Continental certificates. They were not evidences of debt when certified, as the law was repealed. The Secretary of the Treasury could not be acquainted with our laws, and the certifi­cates on the face of them appeared to be for debts. As they were sated to him they appeared to be subscri­bable, afterwards on more mature information and con­sideration they were not so.

In a subsequent letter the Secretary gives a different opinion. He read the following:—

[Page 220]Mr. Morgan observed that this opinion of the Secre­tary was not on general principles, but immediately applied to the New-Loan certificates certified by Mr. Nicholson to be genuine and assumable.

The grounds not unknown to our officers, the Compt­roller must have been better acquainted with them than the Secretary of the Treasury. It does not appear that in his former communications he ever mentioned the re­pealing Act of 1789, to Mr. Hamilton; therefore the Secretary's former decision must have been on a partial view and consequently of no credit.

Mr. Nicholson knew that no subscription could be made without a previous surrender of continental cer­tificates, and this he was not empowered to do: This appears from the law, and his letters on this subject to the Governor.^*

Mr. Morgan then read Mr. Hamilton's letter to the Governor, pages 102 and 103.

The following letters were then read.

Mr. Morgan made suitable remarks on these letters, and observed that Pennsylvania had paid upwards of 63,000 dollars, and had nothing in return, and could not procure the Continental certificates. This act being done clandestinely must have a different construction than if it had been done openly.

The Comptroller-General obtained the money before the Governor or Register-General had any information of it: It was done in a way regardless of the checks of office. It was necessary that New-Loans should be de­clared assumable before they were subscribed, if there had been a full consultation it would shew some degree of fairness. The Governor should be consulted if there should exist any difference of opinion between the Comptroller and Register-General.

Mr. Nicholson shut the secret in his own breast, the dates of interest on the face of the abstracts were only inferences, and the Register-General did not know they were New-Loans.

Mr. Morgan read the warrant No. 462, by which Mr. Nicholson reduced the money into his possession, the Register-General was not to blame as he did not enter into the calculations of abstracts.—Dates of interest and hurry of business might have induced him to overlook or not to have attended to this particular.

He read the following letter—

[Intended to have been signed by the Register.]

He observed that the original letter from the Gover­nor written two days after the foregoing and the answer were not to be found.

He read the following letters:—

List of proposals for the purchase of 3 per cent. stock:—

• JOHN NICHOLSON,
• JOHN DONNALDSON."

April 30, 1792.

I approve, 30th April, 1792, T. MIFFLIN."

"Will you be so good as to calculate the specie sums to be paid on each proposal.

A. J. DALLAS."

[Page 228]Here Mr. Morgan. remarked that the New-Loan cer­tificates were excluded.—If these two officers made a partial statement, they did not comply with the requi­sitions, it must therefore be conceded that it included all: The act of the 10th of April, 1792, was their rule of construction. He then read the 2d section of that act. Mr. Morgan then held in his hand an abstract which had been actually redeemed, which did not on the face of it shew the certification of the Comptroller for being genuine and assumable, but it was in the hand writing of that officer, in the abstracts of others, it was necessary, here it was not, the form is similar to the others; it consisted of eight columns.—1. Date of cer­tificate. 2. Number of ditto. 3. By whom issued. 4. To whom issued. 5. Commencement of interest. 6. Amount of each certificate. 7. Interest computed to December 31, 1791. 8. Total amount.

In this abstract it is necessary to observe that a certi­ficate purchased from an irreproachable witness on the 7th of July, 1792 is contained in a receipt dated the 30th June, 1792, an erazure is made to cover purchases made after the first of July, to bring them within the time prescribed by the act.

The foregoing were offered to support the three first articles, the fourth is rather a deduction from them, he observed that the three first were considered together for they could not be separated.

He read the fourth article.

Mr. Nicholson, he observed, could not certify to the officers of the United States in his private capacity, he therefore did it under colour of his office, there was no specification of New-Loans on the face of the abstracts, and no fund provided to pay them, the money must therefore have been drawn from the Treasury without any previous appropriation, or out of a fund otherwise appropriated, which is contrary to the constitution; he quoted the 21st section of the first article of the consti­tution of Pennsylvania. It is apparent from these facts and circumstances that the Comptroller General knew [Page 229] when he made the certification, and unless an appro­priation can be shewn, it will not be disputed that the New-Loans could be redeemed out of any other than the fund contemplated in the Act of the 10th of April, 1792. He repeated the reading of the second section, and said, that unless some other law can be shewn, which he knew nothing of, there was no fund, the section men­tioned nothing of New Loans, nay it appropriates the funds and excludes New-Loans; the sale of the three per cent. stock was co-extensive with its object. If there­fore 986,000 dollars were only sufficient, and part direct­ed for New-Loans, it would affect the other, and injure the proper state creditors; the honor of the state would be disgraced, as she promised payments and had not funds.

To prove that the money was reduced to Mr. Nichol­son's possession, he read the Governor's warrants, Num­bers 425, 451, and 462, July 9, 12, and 14, 1792.

The Treasurer appeared with his books to shew that the money was paid the 14th July, 1792, before the Register or the Governor knew any thing about the subscribability of New-Loans.

The consequences of this transaction aggravate the crime, Mr. Nicholson's gain on the whole was about 14 or 15,000 dollars, and the commonwealth lost 25 per cent.

Mr. Morgan read the 5th article, observing that he would substantiate the charge contained in this by re­spectable witnesses, they did not appear, and he moved for an adjournment, which was granted, with directions from the Speaker to be punctual.—The members of the House of Representatives returned to their chamber, and repeated the ceremony, as in page 214 and 215.

The letter of Mr. Nicholson, read yesterday in the House of Representatives (see page 200) was read the second time; and referred to Messrs. B. Morgan, M'Lene, Evans, and Bowman. It does not appear that they reported on it.

Third day of the trial. FRIDAY, FEBRUARY 28.

THE Senate met; and the members of the House of Representatives in committee of the whole repaired to the Senate-chamber.

At 10 minutes after eleven o'clock Mr. Morgan rose, having premised that his arguments the preceding days respected the first, second, third and fourth articles of impeachment against the Comptroller-General, that he would then proceed in order to the fifth.

That he would shew by the different statements of that officer to the Legislature in his official capacity, that he did not look upon New-Loan certificates as a State debt after the passing of the Act of March, 1789, as Mr. Nicholson made no mention of them in any of his communications.

That the Governor was of the same opinion.

The committees on Ways and Means of the same;

And the Legislature likewise.

That after the printed documents would be brought forward, he should then adduce oral testimony. He read part of the State of the Finances of the common­monwealth as reported by Mr. Nicholson on the 7th November, 1787, in which Mr. Nicholson mentioned the New-Loans as an existing debt against the state.

That in all his communications previous to March, 1789, the Comptroller mentioned the New-Loans as an existing debt; and a total change of sentiment took place in him, in the Legislature, and Governor, after that period; because they conceived the law of March, 1789, had done away the claim which existed by the law of 1786, and the New-Loans were omitted in all their subsequent statements as no longer an object of Legislative consideration.

[Page 231]He observed that the Governor in his speech to the Legislature on the 10th December, 1791, did not men­tion New-Loans as a debt or claim on the state, and that he did not forget them, as he made mention of the payment of the arrears of interest due on them, for which provision is made in the repealing act of March, 1789.

He read part of the Governor's speech to both Houses on the 28th December, 1790, being the first session after the passing of the act of March, 1789, in which the Governor enumerated the aggregate of all the engage­ments of the commonwealth, and mentioned only the balance of interest due on the New-Loan debt; if they had been debts, he would not have executed his duty in omi [...]ting to state them, that funds might be provided by the Legislature for their redemption.

The same idea was pursued by the Governor in all his communications respecting the New-Loans.

The Comptroller-General himself, the committee on Ways and Means, and the other officers were of the same opinion. Mr. Morgan read part of the report of the committee on Ways and Means, Feb. 8th 1791, page 166 of the minutes, wherein the other debts of the commonwealth are mentioned and provided for, but not the New-Loans: Notwithstanding this is called a statement of all the debts of Pennsylvania, and added that every body put the same construction on that debt.

He read part of the statement of the Comptroller and Register-General of the 30th November, 1791, to the Governor, and observed that the Governor and the Secretary were betrayed into the part they had acted, and for proof of which he would call witnesses.

Fourth day of the trial. SATURDAY, MARCH 1.

SENATE met pursuant to adjournment.

Mr. Morgan apoligized for the unavoidable necessity they were under of postponing the trial, as it was out of their power to proceed to the 6th and 7th articles of impeachment as the testimony of two persons are closely connected, one of them was seriously indisposed, to procure whose testimony they had taken preparatory [Page 246] steps, one of them, Mr. M'Connell, could be procured, the other, Mr. M'Clenachan was very sick and could not venture out, that measures were taken to have his testimony by Monday next, and observed that he ex­pected this would be acceptable to gentlemen on the other side, as an amicable spirit of accommodation seemed to prevail among the parties concerned in ma­naging this important trial.

Mr. Tilghman observed that he had no objection to the postponement for the reasons adduced by the gentle­man manager, but he entertained some hopes that Mr. M'Clenachan's indisposition was not so great, but that he would attend, should the case be otherwise, and that he could not attend personally, he had no objection to to have his testimony taken in the manner proposed by Mr. Morgan.

Adjourned until Tuesday next 10 o'clock.

In the minutes of the House of Representatives the following entry is recorded:

"In conformity to the resolution of February 25th last, for the purpose of attending the trial of John Nicholson, Comptroller-General.

"The House resolved itself in a committee of the whole,

"The Speaker quitted the chair and Mr. Erwin was placed therein.

"The committee then proceeded to the Senate-chamber for the purpose aforesaid.

"After some time,

"The committee of the whole returned to their own chamber.

"The Chairman left the chair and the Speaker re­sumed it.

"The Chairman then reported that the committee of the whole had attended at the trial of the articles of impeachment against John Nicholson, Comptroller-Ge­neral.

"The committee appointed to manage the trial on the articles of impeachment of the House of Represen­tatives, [Page 247] against John Nicholson, Comptroller-General, reported further progress.

Fifth day of the trial. TUESDAY, MARCH 4.

SENATE met pursuant to adjournment.

Mr. Morgan,

Mr. Speaker and Gentlemen of the Senate,

Having gone through the five first articles of im­peachment against the Comptroller-General of this commonwealth, it now remains for me to go on to the 6th and 7th articles, to understand these two, a conside­rable scale of important facts and corroborating testi­mony must first be attended to—If I have shewn that the Comptroller's opinion was, long before the passage of the Act of March 1789, that the New-Loans ceased to be a State debt, it will render his conduct more criminal, a retrospective view of a past transaction will add some information to what has been already advanced: in one of his reports on the state of the finances, dated October 1, and December 11, 1790; he had stated what debts were valid against the commonwealth and what were not.

Here Mr. Morgan read the report page 385, in the appendix to the minutes of 1790, containing what debts were to be discharged, and what were valid, agreeably to the report of the proper officers; that the present con­stitution allowed of no draughts from the Treasury ex­cept by previous appropriations made by law. But in page 389 in the 7th article of the finances are several sub­divisions, wherein the amount of the principal and in­terest of the New-Loans are defined, and excluded from redemption in the Land-office, whereby they cease to be and are no longer a debt of the state. This is ex­plained in express terms, page 395 that New-Loans were then excluded. Here then we rest our testimony [Page 248] of the five first articles, these are objects of our accusa­tion for plain and obvious reasons.

We now come to objects of greater moment, to im­peachments of a deeper dye, as the articles are of greater magnitude the punishment is to be severer, inasmuch as the Comptroller as a faithful guardian to preserve the property of the public, did not lay his hands on the treasures of the commonwealth, for the purpose of sav­ing the same, but made his official duty subservient to speculation. If the testimony already exhibited and arguments adduced, has made equal impression on the Senate as on the managers and on the House of Re­presentatives, who are his accusers, the articles of im­peachment will have the effect which the law and con­stitution require. (Here Mr. Evans assisted Mr. Mor­gan in arranging the papers and preparing the parts to be read.)

Among the various persons who came to the Compt­roller's office to loan their certificates, we find the name of Hans Hamilton, in different progressions, and if I am RIGHTLY INSTRUCTED it will be proved that Loan-office certificates of the United States and New-Loan certificates were deposited with Mr. Nicholson, and both ultimately subscribed to the Loan of the United States.

It remains with the Comptroller-General to account for that procedure, if the Act had required the same Continental certificates to be returned, the case would be plain, and owing to the circumstances of both, the New-Loans and the other certificates having been subscribed by the same person a presumption is raised; and he should shew why they had not taken different courses. The moment that they ceased to be private property, they immediately became the property of the common­wealth, for the New-Loans and the Continental certifi­cates could not be public and private property at one and the same point of time, yet both have been subscribed.

In the list of New-Loans certificates originally issued, book A, page 129—a certificate of £. 11:16, No. 4051, [Page 249] issued to Hans Hamilton, same page, No. 4052 for £. 268, No. 4053, £.242:7:6 making in the whole £. 522:3:6.

In the next Book A, stating what Continental certi­ficates were received for the New-Loans issued, from which it will appear a small error of 2ʃ3 only excepted, that they agree exactly. Continental certificates with their numbers, &c. are as follows:—

These last have been subscribed by the Comptroller-General in the name of Hans Hamilton.

To prove that the Continental certificates thus depo­sited exactly corresponded with the New-Loans, I have in my hand a certificate from the Register of the Treasury signed by Joseph Nourse, March 4th, 1794, by which it appears that the Comptroller-General had subscribed by the Act of August 4, 1790, the certificates issued as aforesaid.

It thus appears, that the first therein, corresponds ex­actly with the second in the other, in numbers, names, dates, commencement of interest, and total amount; the correspondence between them is best ascertained by going over the abstract, and examining the same, and, by comparing it with the Comptroller's books. I will now proceed to shew the New-Loans were also sub­scribed—

These three last contain the whole of the Continental certificates in the above statement; so that it appears [Page 250] Hans Hamilton came forward and had New-Loans issued for his Continental ones, two evidences of the same debt—this inconvenience would not have happened if the intention of the Legislature had been pursued. After the law of 1789 the New-Loans were only a receipt or claim to get back the Continental certificates; by this means a duplication of debt had been brought against the United States, contrary to what the Union and Pennsylvania had contemplated. This is the only testimony now in our power, it remains with the Compt­roller-General to shew and explain; it is manifest that we had two debts instead of one, the certificates of the United States and those of Pennsylvania, it is in his power to satisfy the Senate if his books were kept in the manner in which they ought to have been—if this transaction is not cleared up, the presumption is that something is unfair and unworthy of this officer.

To shew however by as direct testimony as the cir­cumstance of this case will admit that the Compt­roller-General has made use of certificates brought to, and deposited with him for re-exchange which he afterwards subscribed to the Loan of the United States.

The circumstances which both points are briefly to prove, are these; that Matthew M'Connell furnished or sold a certificate for £. 3275:19:4, to Blair M'Clena­chan, which is among those subscribed by Mr. Nichol­son in his grand abstract. The presumptive testimony will be strong, that the Comptroller received this cer­tificate in his official capacity, and that he afterwards took it to his own use: The first witness whom we shall call on this subject is Matthew M'Connell.

Sixth Day of the trial: WEDNESDAY, MARCH 5.

SENATE met, court called, &c.

Mr. Morgan rose—

Mr. SPEAKER and GENTLEMEN of the SENATE,

Before the Counsel for the defendant begins, I rise to shew that Mr. Nicholson did not keep his books of exchanges agreeable to the instructions of the Supreme Executive Council, this I think necessary, to shew that if the evidence on behalf of the prosecution is not so compleat as it should have been, it is not owing to our fault but to the defendant's neglect, who did not keep his books conformably to the following instruc­tions.