From Thomas McKean
[Ches]ter Cownty. Sepr. 19th. 1777
I am informed, that some of the Members of Congress are dissatisfied with my allowing, as Chief-Justice of this State, writs of habeas corpus for twenty persons confined in the Free-masons Lodge in Philadelphia.1 Next to the approbation of a good conscience I esteem the good opinion of good men; and of my friends in particular. This occasions you, Sir, the trouble of reading the following brief account of that transaction, and the reasons for it, which, I flatter myself, will convince you of the propriety of my conduct, and, by your candid explanation, all others, who may not have had the same opportunities with you and me of studying and understanding the laws.
The writs were applied for in form, agreeable to the directions of the statute of the 31 Car. 2 ch. 2;2 and the only authority for the confinement, that I saw, was the copy of a letter from the Vice–President to Colo: Lewis Nicola.3 My situation was such, that I had not received a letter, nor seen a news-paper from Philadelphia for a fortnight; nor could I learn any particulars respecting this affair from any one whom I met, excepting the two persons who brought the writs to me:4 they offered me a pamphlet5 written by the prisoners stating their case, which I refused to accept or read, saying, I shou’d determine upon the returns that should be made to the writs and nothing else.
The habeas corpus Act forms a part of the Code of the Pennsylvania laws, and has been always justly esteemed the palladium of liberty. Before that statute the habeas corpus was considered to be a prerogative writ, and also a writ of right for the subject; and if the King and his whole Council committed any subject, yet by the opinion of all the judges (in times when the rights of the people were not well ascertained nor sufficiently regarded) a habeas corpus ought to be allowed and obeyed; and the distinction taken was, that in such a case upon the return the prisoner was to be remanded, but if the commitment was by part of the Lords of the Council, he was to be bailed, if not for a legal cause he was to be discharged. I need not mention to you the many cases on this head in our books, had I any now to recur to. By the statute all discretionary power is taken away, and a penalty of £500 sterling imposed for a refusal of any judge in the vacation to allow the writ: so that if I had forgot the oath I had taken but a few days before,6 common prudence would have prevailed upon me not to have incurred the forfeiture of ten thousand pounds sterling, and also as a judge to have subjected myself to the just censure of the judicious and dispassionate; and the more especially when no injury could arise by returning the writs and bringing the parties before me, save a little delay, the expence being borne wholly by the prisoners, agreeable to the statute. If upon the return of the process I had shewn any partiality to the prisoners, or sought occasion to favor men inimical to a cause I have espoused with as much sincerity, and supported and will support with as much zeal, as any man in the Thirteen United States, then indeed I might have been deservedly blamed and stigmatized; but censure previous to this was, to say no more, premature and injudiciously bestowed. No Gentleman thought it amiss in the judge, who allowed the habeas corpus for Ethan Allen and his fellow-prisoners upon the application of Mr. Wilks &c.7 Even the Ministry despotic as they were, did not complain of it, but evaded them by sending the prisoners out of reach. Fiat justitia, ruat coelum,8 pleases me as a sentiment and faithful judges ought not be be subjected to unnecessary difficulties.
I acquainted the Vice-President with every particular of what had happened by an Express sent for the purpose; enquired of him, if the habeas corpus act had been suspended, or was about being suspended, for a limited time; and requested, if an act had passed for that purpose, to favor me with an exemplified copy. I told him, that, in almost every war since the making the statute, the like had been done in England, and that it was now in fact done there. You know however the struggles in Parliament from time to time, whenever this has been moved by the Ministry. I could no more. On Tuesday last a law was enacted for the purpose,9 a copy of which was made out under the proper seal, and delivered to my express the same day, which has relieved me from any farther difficulties. I am anxious notwithstanding that the virtuous should think me so, and must therefore beg leave to re-iterate my request, that you will be so kind on proper occasions to explain this matter. I know how apt many are to disapprove of proceedings that are disagreeable, without duly reflecting upon their propriety and necessity.
This seems to be the day of trial. The Die is cast. I trust “we shall throw sixes.” May the Almighty give the Congress and our Generals wisdom, fortitude and perseverance, and teach the fingers of our army to fight. Our cause is good, our army in health and high spirits, and more numerous than that of the enemy. May the divine Disposer of all events crown our virtuous endeavors with success and save our country; of this we may be confident, “for he delights in virtue, and that which he delights in must be happy.”10 I shall now subscribe myself, what with great truth and sincerity I am, Sir, Your friend and most obedient humble servant
RC (Adams Papers); docketed: “Chief Justice McKean Sept 19-1777.” One small piece cut from the bottom of the third page.
1. The background for the detention of these men, Quakers and members of the Church of England, began with a letter from Gen. Sullivan of 25 Aug. enclosing to the president of the congress papers seized in Sullivan’s raid on Staten Island. In Sullivan’s mind it was beyond doubt that a paper presumably from the yearly meeting at Spanktown (Rahway), N.J., proved that the Quakers were providing the enemy with intelligence (Sullivan, Papers description begins Letters and Papers of Major-General John Sullivan, Continental Army, 1771–1795, ed. Otis G. Hammond (New Hampshire Historical Society, Collections, vols. 13–15), Concord, 1930–1939; 3 vols. description ends , 1:443–444). On its face, however, the Spanktown report on the positions of Howe, Washington, and Sullivan as of 19 Aug. is an obvious forgery. Its naming of the month instead of referring to it as the 8th month suggests at once it was not a truly Quaker document. Moreover, a broadside issued by the yearly meeting at Philadelphia, held from 29 Sept. to 4 Oct., denied that Spanktown was ever the site of yearly meetings (PCC, No. 53, f. 97, 101).
The congress upon receipt of Sullivan’s letter appointed a three-man committee, headed by JA, to make recommendations, which were reported on 28 Aug. In the language of its report, published Quaker testimonies “and the uniform tenor of the conduct, and conversation of a number of persons of considerable wealth” among the Quakers “render it certain and notorious that those persons are, with much rancour and bitterness, disaffected to the American cause.” The report resolved that the Pennsylvania Council arrest fourteen men who were named, and it went on to suggest that all the states apprehend those who “evidenced a disposition inimical to the cause of America.” Finally, the report recommended that the papers of the Meetings of Sufferings in the several states be examined, the political parts of them to be transmitted to the congress, and that Henry Drinker and Abel James and their papers be immediately seized. After debate on the several parts of this report, it was accepted with three names dropped and the special reference to Drinker and James eliminated (JCC description begins Worthington C. Ford and others, eds., Journals of the Continental Congress, 1774–1789, Washington, 1904–1937; 34 vols. description ends , 8:688–689, 694–695). JA’s views on the Quakers at this juncture are in Adams Family Correspondence description begins Adams Family Correspondence, ed. L. H. Butterfield and others, Cambridge, 1963-. description ends , 2:337–339.
On the strength of this congressional recommendation, the Pennsylvania Council in a Sunday meeting on 31 Aug. ordered the questioning for possible detention of not only the eleven men named by the congress but also an additional thirty. Most of the names were marked with an “X,” signifying that if these agreed in writing to stay in their homes and refrain from hostile speech and acts, they would not be further confined. The Council records contain a name-by-name account of the findings which the twenty-five agents for the Council reported (Penna. Colonial Records description begins Pennsylvania Colonial Records, 1683–1790, Philadelphia and Harrisburg, 1851–1853; 16 vols. description ends , 11:283–284, 286, 287–289).
The twenty men who obtained writs of habeas corpus from McKean were those who signed a remonstrance to the Council on 4 Sept. See note 5 (below).
2. Passed in 1679 (Statutes at Large of England and Great Britain, London, 1811, 5:458–465).
3. The letter of George Bryan to the “Town Major” of the City Guards, Col. Nicola, has not been found.
4. Probably Dr. James Hutchinson and Samuel Rhoades Jr., son-in-law of Israel Pemberton, who was a leader among those imprisoned (PMHB description begins Pennsylvania Magazine of History and Biography. description ends , 14:421, note). Hutchinson and Rhoades prepared a third remonstrance for the prisoners and acted as go-betweens for them to the Council.
5. A 52-page pamphlet entitled An Address to the Inhabitants of Philadelphia, by Those Freemen, of the City of Philadelphia, Who Are Now Confined in the Mason’s Lodge . . ., Robert Bell, Phila., 1777, Evans description begins Charles Evans and others, comps., American Bibliography: A Chronological Dictionary of All Books, Pamphlets and Periodical Publications Printed in the United States of America [1639–1800], Chicago and Worcester, 1903–1959; 14 vols. description ends , No. 15496. This publication contains not only an address but also a quotation from Montesquieu’s Spirit of the Laws, serving as a motto, a copy of the general warrant for their arrest, five remonstrances made by the prisoners, four to the Council and one to the congress, as well as replies from the Council. The prisoners made eloquent pleas in behalf of the basic rights of all men in a free society—the right of the accused to know specific charges against them, the right to a hearing, the right to the sanctity of their homes and papers—all to no avail. Alleging lack of time in the crisis confronting the state, the Council rejected congressional advice to give the prisoners a hearing (JCC description begins Worthington C. Ford and others, eds., Journals of the Continental Congress, 1774–1789, Washington, 1904–1937; 34 vols. description ends , 8:718–719; Penna. Colonial Records description begins Pennsylvania Colonial Records, 1683–1790, Philadelphia and Harrisburg, 1851–1853; 16 vols. description ends , 11:293). They were to be exiled to Staunton, Va. The Council’s offer to free them if they would take the oath or affirmation required in Pennsylvania of all who would enjoy the full rights of freemen or take a special oath or affirmation of allegiance to the state drew a firm refusal, which cited the words of Lord Halifax: “As there is no real security to any state by oaths, so no private person, much less statesman would ever order his affairs as relying on it; for no man would ever sleep with open doors, or unlock’d-up treasure, or plate, should all the town be sworn not to rob.” The Quakers insisted that their urging coreligionists not to side with either America or Britain was in accord with their most deeply held principles; the Anglicans assured the Council that they had never given intelligence to the British. A shortened version, lacking some of the documents quoted but retaining all of the eloquent passages, was printed in New York, London, and Dublin (Evans description begins Charles Evans and others, comps., American Bibliography: A Chronological Dictionary of All Books, Pamphlets and Periodical Publications Printed in the United States of America [1639–1800], Chicago and Worcester, 1903–1959; 14 vols. description ends , No. 15497).
6. McKean was sworn in on 1 Sept. (Penna. Archives description begins Pennsylvania Archives. Selected and Arranged from Original Documents in the Office of the Secretary of the Commonwealth, Philadelphia and Harrisburg, 1852–1935; 119 vols. in 123. description ends , 1st ser., 5:621).
7. Allen’s own A Narrative of Col. Ethan Allen’s Captivity, Phila., 1779, does not mention this effort of John Wilkes on his behalf, nor have the editors been able to find other mention of it.
8. Let justice be done though the heavens should fall.
10. Addison, Cato, Act V, scene i.