The Deposition of John Logsdon, aged thirty-six Years or thereabouts, being sworn on the Holy Evangel's of Almighty God, Saith:

"That when a certain John Lemon, about sixteen or seventeen Year past, as near as this Deponent can remember, settled the Place and built Houses where Martin Kitzmiller now lives, this Deponent then lived in the Neighbourhood of the said Place near Conewaga, and had lived there for some Years before, and was well acquainted with John Lemon, and afterwards with the aforesaid Martin Kitzmiller.

"That some time before the said John Lemon settled the aforesaid Place had the same surveyed for him (as this Deponent understood) by order of Mr. John Digges, this Deponent in Company of some others, and particularly amongst whom was Robert Owinge, had been riding near the said Place looking for Hogs, and as they came down the Branch the said Robert Owings told this Deponent or some of his Company they should now soon get upon Mr. John Digges' Land, and at the time he, the said Deponent, and Company came to and entered upon a rich Piece of well-timbered Land a little Distance above the aforesaid Settlement made by the aforesaid Lemon, he, this Deponent, very well remembers that the aforesaid Robert Owings told this Deponent and Company they were now upon the said Mr. Digges' Land; this was about 18 or 19 Years past.

"This Deponent further saith, that he very well remembers that the aforesaid John Lemon built Houses and lived sometime on the aforesaid Place where this Deponent is certain that the Land then shewed this Deponent and Others at the time of their Hog hunting aforesaid includes the aforesaid settlement of John Lemon, and is where the aforesaid Martin Kitzmiller now lives. This Deponent also saith that sometime after the said John Lemon settled on the aforesaid Place the aforesaid Martin Kitzmiller bought the same and lived thereupon and went to work about cutting a Race or Water Course for a Mill, and at the same time the said Kitzmiller lived in the same Houses that were built by the aforesaid Lemon, and is now about fourteen Years past.

"That this Deponent very well remembers that he was informed in a Year or two after that the aforesaid Martin Kitzmiller was treating with the aforesaid Digges to purchase the said Land, and had provided about Forty Pounds in Money, and intended the same for said Mr. Digges in order to secure the said Land; but instead thereof this Deponent very well remembers that the said Martin Kitzmiller, as this Deponent was then informed, laid out the said Money to purchase at a Vendue a Place where a certain John Hufflemire then lived, and which was then sold or soon after, at the same time this Deponent understood that the said Digges was something disturbed at the Disappointment thereof. That likewise this Deponent very VOL. V.-38.

well remembers, and at sundry times was informed that the said Martin Kitzmiller would purchase of said Digges, and at other times would not, but would hold under the Proprietaries of Pennsylvania, and about five years ago this Deponent was present when the aforsaid Kitzmiller came to the said Digges and agreed with the said Digges in the Purchase and to have same Run out and surveyed for him; to this End this Deponent was employed to survey the same, and in company with the late Mr. Dudley Digges, Jacob Bauker, and Miles Coyle, this Deponent did survey and run the Lines of the same agreeable to a Division made and agreed upon between the aforsaid Bauker (a former Purchaser of the said Digges) and the aforsaid Martin Kitzmiller; that this Deponent likewise very well remembers that the aforsaid Martin Kitzmiller Complained that the Land Consisted in too much bottom Land and Meadow and that he should not have Plow Land enough, which this Deponent told him he might easily add enough of that sort by taking of the Proprietaries of Pennsylvania, upon which the said Kitzmiller swore he would have none of Penn's Land.

"This Deponent further knows and remembers that the said John Lemon upon his settling this Land built a Dwelling House, a Stable or Barn, and thinks a third House, but of this last Deponent is not certain, besides cutting down and clearing a very heavy Piece of timbered Land and fencing the same, in doing of which the said Lemon was at the Expense of employing a certain John Deerdove to assist him therein, and this Deponent knows the said Lemon paid the said Deerdove towards the Expence thereof two valuable Young Bay Horses, which was done by the said Lemon before the said Kitzmiller entered thereupon.

"This Deponent further saith, that the said Kitzmiller to the best of this Deponent's Knowledge hath neither grubbed or cleared any more land or added further Improvements within the said Land claimed by the said Digges, excepting the Mill, a little Meadow, with some Addition to the Stable or Barn, and a little Spring House; and further this Deponent saith not.

"Sworn before JOHN DARNALL, one of his Lordship's Justices of the Provincial Court of Maryland, June 28th, 1752.” ·

Whereupon, the Council having heard, debated, and maturely considered the Premises, are from the express words of the Proprietaries Agreement confirmed by the Royal Order, and their manifest reasonable Intention, unanimously of Opinion:

That no Possession at the Time of making the Order of Lands to the Northward of the Temporary Line can give Jurisdiction to the Proprietor of Maryland over those Lands, unless such Possession was held by the Proprietor of Maryland or immediately or mediately under him.

That no Right at the time of the Royal Order to Lands North

ward of the Temporary Line, by or under the Proprietor of Maryland, can give a Jurisdiction to that Proprietor over such Lands, unless they were at the time of the Order possessed by him or mediately or immediately by others under that Right.

And they are further of Opinion:

That supposing Mr. John Digges or his Tenant had Possession of the Land where the Crime was committed at the Time of the Royal Order, Yet it does not appear from any Part of the Depositions that such Possession was taken or held by any Warrant or Patent, Power or Authority, of any kind whatsoever, from or under the late Proprietor of Maryland, his Agents or Attorneys.

That such Power or Authority to take or hold Possession of Lands as aforsaid ought properly to be in writing and not by words alone.

That seeing the President in his Letter of the fifth of May last did rely upon it that the spot where the deceased was killed had been surveyed (and indeed patented) to Mr. John Digges, under authority of the Government of Maryland some considerable time before his Majesty's order in Council, and the Governor by his answer of the twenty-second of that Month requested the President to furnish him with copies of the Survey and Patent to enable him to satisfy himself of the Truth of those Facts, which the President has declined doing, and therefore has in effect denied, it is reasonable to conclude the President was misinformed concerning those Facts when he wrote that Letter.

That as it appears by the Depositions Martin Kitzmiller at the time of the Royal Order was in Possession of the close or Tract of Land where the crime was committed, claiming in his own Right and disowning the Right of Mr. John Digges and the Proprietor of Maryland, that Possession, however obtained, according to the words and spirit of the Agreement, excluded the Proprietor of Maryland from Jurisdiction over the Land.

That Supposing Martin Kitzmiller by his Purchase from and Entry under John Lemon became the Legal Tenant of Mr. John Digges, and his Possession ought to be esteemed the Possession of Mr. Digges, yet such Possession of Mr. Digges, if it was not taken by or held under some authority or warrant from the Proprietor of Maryland, as effectually excludes the Jurisdiction of that Proprietor over the Land as the l'ossession of Martin Kitzmiller independent of Mr. Digges; and

That in this case where the Jurisdiction to try one of his Majesty's Subject for a Capital Crime depends on Right to Land, upon which Right the nature and Quality of the offence may possibly turn, it would be highly unreasonable on a question concerning the Right in Order to determine the Jurisdiction, tho' in a Summary manner, to admit for Truth matters deposed out of the Hearing of

the accused and without allowing him the just and legal advantages of either excepting to or Cross Examining the Witnesses.

Therefore they did unanimously advise the Governor no longer to suspend the Tryal of the Prisoner, and did further advise him with all speed to let the President know the Time of Tryal, that any Persons Authorized by those concerned in the Administration of the Government, or any other Persons there may have opportunity to lay before the Grand and Petit Juries all legal Proofs to shew the Jurisdiction in this case belongs to the Proprietor of Maryland, and that if it should be so found the Prisoner may be delivered to the Ministers and Officers of Justice in that Province for Tryal. Which the Governor did in the following manner:

"Sir:

A Letter from Governor Hamilton to President Tasker.

“PHILADELPHIA, September 28th, 1752.

"I acknowledge the Receit of your Favour of the thirtieth of July last with the Deposition of John Logsdon inclosed, and should have returned you an answer long ago had not my Indisposition and a Desire to lay the Affair before the Council here for their opinions and advice delayed me.

"I have now laid the whole affair before them, and have thereupon received their opinion and advice, a Copy of which at large I enclose to you, and as I concur with them in the former, I am come to a Resolution of following the latter.

"I therefore beg Leave now to acquaint you that the Court for the Tryal of Jacob Kitzmiller for killing the late Mr. Dudley Digges, will be held at York Town in the County of York, in this Province, on the thirtieth Day of October next, where Persons authorised by your Government, if it be thought convenient, or any others concerned, may lay before the Grand and Petit Juries qualified to try him, all legal Proofs to shew the Jurisdiction in this case belongs to the Lord Proprietor of Maryland.

"Until the receit of your last Letter it was perfectly unknown to me that Taxes had been assessed or levied by the Commissioners, & of the County of York on any of the Inhabitants by the Royal Order made Subject to your Jurisdiction, and in order to prevent any thing of that kind hereafter, I immediately dispatched Orders to discontinue all Proceedings thereupon if any such had been made, being desirous to the utmost of my Power to avoid all Occasions of Contention upon these Points, and to maintain Peace and good Neighbourhood between the two Provinces agreeable to his Majesty's Royal Intention.

"I am with great Regard, Sir,

"Your most obedient humble Servant,
"JAMES HAMILTON."

The Governor was afterwards furnished by President Tasker with exemplified Copies of the Warrants, Surveys, and Patents, which had been granted to Mr. Digges for the Lands claimed by him under Lord Baltimore to the Northward of the Temporary Line, and it appeared plainly by these that the Place where Jacob Kitzmiller killed Dudley Digges was in a Tract of vacant Land that lay to the Northward of the Temporary Line, and that it had been granted to Mr. Digges in the Year one thousand seven hundred and forty-five, in express violation of the Royal Order. These exemplified Copies were by Order of the Governor produced at a Court of Oyer and Terminer held by the Supreme Judges for the County of York at the Tryal of Jacob Kitzmiller and his Father, who were thereupon acquited.

At a Council held at Philadelphia, Wednesday the fourth of October, 1752.

PRESENT:

The Honourable JAMES HAMILTON, Esquire, Lieutenant Governor.

Thomas Lawrence,

Robert Strettell,

Joseph Turner,

William Till,

Benjamin Shoemaker, Esquires.
Richard Peters,

The Minutes of the preceding Council were read and approved. The Returns of Assembly Men, Sheriffs, and Coroners for the several Counties were read and the following Persons appointed, and Commissions were ordered to be made out accordingly: