|
Oct. 22.
Hampton Court. |
165. Mr. Secretary Addison to the Council of Trade and
Plantations. Refers following for their report. Signed, J.
Addison. Endorsed, Recd. 23rd Oct., Read 6th Nov., 1717.
½ p. Overleaf, |
|
165. i. Petition of John Borland, New England, to the King.
Petitioner was the first undertaker of curing sturgeon
in America for the English market, and has been at
considerable expence in sending over persons and
necessarys to carry on the same. He hath moreover
been att several thousand pounds expence for the
support of the Garrison at Annapolis Royal which is
still due to him. Prays for a patent for the sole curing
and importing of sturgeon, which others (14th Oct.) are
now petitioning for. 1 p. [C.O. 5, 866. Nos. 125,
125 i.; and 5, 915. pp. 55–57.] |
Oct. 23.
Whitehall. |
166. Mr. Secretary Addison to the Council of Trade and
Plantations. The Lords Proprietors of the Bahama Islands in
America being about to surrender to the Crown their right and
power of Government in and over the said Bahama Islands;
I am hereby to signify H.M. pleasure to your Lops., that when the
deed of surrender shall be duly executed by the said Lords
Proprietors, you should accept the same, and transmit the said
deed to H.M. Attorney General in order to its being inrolled in
Chancery. Signed, J. Addison. Endorsed, Recd. 28th Oct.,
Read 6th Nov., 1717. 1 p. [C.O. 5, 1265. No. 80; and 5, 1293.
p. 114.] |
Oct. 23.
Hampton Court. |
167. H.M. Commission to Woodes Rogers to be Captain, and
to Rt. Beauchamp to be First Lieutenant of the Independant
Company of Foot appointed to do duty in the Bahama Islands.
Copy. Countersigned, J. Addison. [C.O. 324, 33. p. 111.] |
Oct. 23.
Whitehall. |
168. Council of Trade and Plantations to the King.
Recommend for H.M. confirmation 3 Acts of Jamaica, (i.) for
regulating fowling and fishing, (ii.) for the better securing the
estates and interests of orphans and creditors and to oblige executors
to give security etc., 1711. (iii.) for preserving the Public Records,
1712. The Act, 1712, to incourage white men to come and settle
seems in generall to be very beneficial and to be liable to one
objection only in that part of it, where to prevent the stealing of
goods by persons that carry goods for hire it is enacted, that any
such person being suspected of having stolen any such goods shall
be obliged to answer upon oath, before a magistrate, what goods
and how much were so purloin'd, stolen or imbezelled. And if he
refuse to take such an oath, he is to forfeit £20; If he be convicted
by his own confession on oath. he is to forfeit to the person
aggrieved double the value of the goods so purloined etc. And
tho' this is in some measure qualify'd by a subsequent clause, wch.
provides that such confession on oath shall not be given in
evidence to charge any person with felony or in any action at law
etc. (v. July 22. 1714) yet even this seems to be too hard, as being
contrary to natural Justice, to oblige a man to answer upon oath
to accuse himself of a crime, which we do not know to be required
by any law in this Kingdom. However as we have been inform'd,
that some such rigorous provision by Law is in that Island
necessary for the securing goods and merchandizes as aforesaid,
and that we have not received or heard of any complaints against
this Act since it pass'd, and that it is in other respects usefull and
reasonable, we must beg leave to submit to your Majesty's
pleasure, whether the same may not be confirm'd. Concerning
the Act declaring what persons shall be qualify'd to set in Assemblys,
1711, We must beg leave to observe, that as the Assembly did
at first meet and now subsist only by your Majesty's Commission
to the Governor and the powers therein granted, the qualifications
of the Assembly men and of their electors ought properly to be
regulated by Your Majesty, not by the Assembly, besides the
qualification of £200 pr. annum required by this Act appears to
us to be too large a summ; We cannot therefore think it adviseable for your Majesty to confirm this Act, but rather to declare
your disallowance of it. The Act to prevent hawking and disposing
of goods clandestinely, 1711, we conceive shou'd be rejected,
because it prohibits the selling in open markets any sorts of goods,
wares and merchandizes whatsoever, other than Plantation
provisions, fresh fish and live-stock, whereby markets in wch. it
is lawful to sell other sorts of foods and wares. wch. may lawfully
be and usually are sold in markets are in a manner destroy'd,
and it is not within the mischief design'd to be remedy'd by this
Act, wch. was hawking and selling from place to place; and it
seems further unreasonable that all persons shou'd be prohibited
as they are by this Act from buying up to sell again any manner of
Plantation provisions or live stock whatsoever within ten miles
of any town of that Island, there is likewise another objection
against this Act, vizt., that the inhabitants of one particular
parish are restrain'd from supplying any other place or parish
with any small stock such as hoggs, ducks and dunghill fowl, but
what the seller raises himself, it being unreasonable to distinguish
the inhabitants of that parish from those of other parts of the
Island. As to the Act to disinable any Member of the Council or
of the Assembly from acting as Commissioners for receiving any
publick mony rais'd or to be rais'd by the Govr. Council and Assembly,
and to disinable any such Commissioner to be a Member of the
Council or of the present or any future Assembly of this Island;
We think it not only lays a great hardship on such persons as
your Majesty may think proper to appoint of your Council there,
but likewise lays such a restriction on your Majesty's Prerogative
as may be attended with worse consequences in this Island, than
perhaps in any other of your Majesty's Plantations, wherefore
we are humbly of opinion this Act shou'd be rejected. We have
no objection why your Majesty may not confirm the Acts of 1716
for the more easy serving of constables etc., and for the effectual
discovery of all persons that are disaffected to H.M. and His Govt.
and to prevent all such persons holding any office or place of trust
within this Island. The following Acts pass'd in Nov. 1716 by the
present Govr. Mr. Heywood vizt., to oblige the several inhabitants
to provide themselves with a sufficient number of white people etc.,
and to encourage the bringing over and settling of white people etc.
ought for many reasons to be rejected. (i.) Because they are
join'd together in the nature of a tack; so that the one wou'd
be imperfect without the other, and both of them (tho' not equally)
liable to objections, do take away your Majesty's power of
granting a non vult ulterius prosequi in cases of forfeiture against
these Acts. (ii.) The former provides a subsistence for the two
independent Companys, only for one year, wch. term is now
expired, tho' the Act itself was to continue in force to Dec. 1st,
1719, and this provision had a clause annexed to it, that no
officer or soldier shoud injoy any civil office on the penalty of £500,
wch. clause is foreign to the main design of the Acts, and consequently contrary to an article in your Majesty's Instructions to
your Governor of that Island, wch. expressly forbids him to pass
any bills containing clauses of a different nature from the bill
itself, without having first obtain'd your Majesty's leave to do it;
besides a former Act of Jamaica was within these few years
rejected by the Crown for having the very same clause in it.
(iii.) In this Act all the public offices are tax'd and the mony
arising thereby as well as by the other parts of this Act, was to be
paid into the hands of Commissioners appointed by the Assembly
to receive the same, wch. is an incroachment upon your Majesty's
Prerogative, a prejudice to your Majesty's Receiver Gen., and is
contrary to an Article in the Instructions to your Govr. (iv.) The
latter of these two Acts appoints Commissioners for certain uses
and directs that in case of the death of any of the sd. Commissioners, the powers granted them shall devolve upon their heirs
several, wch. we cannot but think very extraordinary. (v.) These
two Acts do in several respects seem to clash with an Act for
incouraging the importation of white people pass'd in 1703, wch.
has been confirm'd as well as with the Act of 1712, for the same
purpose, both wch. Acts were to be perpetual, and yet these Acts
of 1703 and 1712 are not repealed, nor indeed is there any mention
made of them in either of the abovemention'd Acts pass'd by
Mr. Heywood. We think it our duty upon this occasion to
observe to your Majesty that during the Govt. of Lord Hamilton,
his Lordship communicated to the Assembly a letter from this
Board and some of the Articles of his Instructions from your
Majesty recommending the passing some Act or Acts for peopling
the Island and prescribing some methods for that purpose,
whereby the main end of these two Acts might have been attain'd,
and the objections they are liable to have been prevented. But
the Assembly (as we are inform'd) had so little regard to the same
that they declin'd reading either ye letter or the Articles of
Instructions, sent them by my Lord, and prepar'd two bills for
the aforesaid purpose, wch. bore the same title, with these two
Acts, and were liable to much the same objections, which the
Council offering to amend, the Assembly dropt those bills. We
cannot therefore but be surpriz'd to find them offer'd again with
the same objections, and that Mr. Heywood. who is personally
interested therein, shou'd have thought fit to pass them, and so
much the rather, because he was particularly restrain'd by your
Majesty's Instructions to him from passing of any Acts, but what
were immediately necessary for the peace and wellfare of the
said Island without your Majesty's particular order for that
purpose. Upon the foregoing considerations we cannot but be
humbly of opinion, that your Majesty may declare your disallowance of these two Acts, as they are liable to the aforesaid
objections, and because the Act of 1703 and that of 1712, if your
Majesty shou'd think fit to confirm it, may in some degree answer
the end of those two Acts, at least, till others can be propos'd,
not liable to the like objections. The Act repealing an Act for
the better securing the estates and interests of orphans and creditors
etc., being intended to repeal another law, wch. we have offer'd
for your Majesty's approbation, and not appearing to be more
effectual for the public benefit and advantage of that Island;
Besides this Act taking away your Majesty's power of granting a
non vult ulterius prosequi, your Majesty may signify your disallowance of the same, whereby the former Act will be in force
again. The Act for granting a further relief, in relation to proving
of wills and testaments, and granting letters of administration of
intestate estates, dos interfere with your Majesty's Instructions,
and the powers therein to your Governor, whereby the probate
of wills is reserved solely to him; Whereas the power of granting
such probates is by this Act made subject to the Supream Court
of Judicature in that Island; We must therefore humbly submit
it to your Majesty's pleasure, whether this Act shou'd be confirm'd.
In relation to the Act to secure the freedom of elections and directing
the proceedings in the choice of members to serve in Assemblys etc.;
we must beg leave to observe that a Bill to this effect having been
prepar'd by the Assembly, during the Lord A. Hamilton's Government, the Council offer'd an amendment to it to prevent clandestine conveyances, and ye creating sham Freeholders in order to
multiply votes at elections, a practice wch. we are inform'd is
pretty much made use of there; and the Assembly refusing to
agree to such an amendment, the bill was dropt. The present
Act takes away your Majesty's power of granting a non vult
ulterius prosequi in cases of penalties incurr'd by the Act, and
imposes on all persons without exception, who may offend against
some conditions of it, a certain fine to wch. your Majesty's
Governor himself is consequently to be subject. For this reason
and because the Assembly have not been willing to consent to the
remedying any abuses suppos'd to be committed in elections by
persons of their own society, we cannot think it adviseable to
propose to your Majesty the confirming this Act. As to the Act
to prevent any one man to hold any two or more offices of profit in this
Island, we humbly represent that in 1711, another Act with the
same title was pass'd in Jamaica and repeal'd by her late Majesty
for reasons offer'd by this Board, altho' that Act was only levell'd
agt. the Provost Marshall, who then held the office of Secretary by
deputation; But this Act is still more general and consequently
more liable to objections, since it extends to all persons that
your Majesty may think fit to appoint to any two places under
the penalty of £500 for every three months they execute the same
either as Deputy or Principal; Besides it is liable to the foremention'd objection of restraining your Majesty's Prerogative in
relation to a non vult ulterius prosequi, for wch. reason we humbly
offer that your Majesty be pleased to signify your disapprobation
of the sd. Act. [C.O. 138, 15. pp. 488–504.] |
Oct. 24.
Whitehall. |
169. Council of Trade and Plantations to Mr. Secretary
Addison. Reply to Sept. 26th. We have considered Lord A.
Hamilton's Memorial, and his proofs of the allegations therein
contain'd. His Lordship's method of proceeding herein was to
apply his evidence to the sevl. articles in order as they stand
number'd in his Memorial, and as his proofs were pretty voluminous, we have rather chosen to transmit you a copy of our
Minutes together with the several papers and extracts therein
referr'd to etc., than to incorporate them in the body of this letter,
that H.M. may be the better able to judge whether they do not
sufficiently prove the sevl. facts asserted in his Lordships meml.
You will observe that most of these proofs consist of written
evidence, as Instructions and letters from H.M., letters from the
Secretary of State and this Board, and Minutes of the Council in
Jamaica, and are consequently of such a nature as cou'd not
admit of contradiction if the persons complain'd of by his Lordship had been present to make their own defence, wch. in this
case was impracticable because there are none of them in the
Kingdom; but indeed considering the nature and circumstances
of my Lord A. Hamilton's case, the presumptions as well as the
proofs are very strong in his favour, since the prosecution agst.
him was entirely dropt upon his Lordship's being dismiss'd from
H.M. Service, thô he did often sollicit to be heard before H.M.
in Council. The Orders given by H.M. for securing Lord Hamilton's person, seem to have been chiefly grounded upon the
affidavits of Walter Adlington and Saml. Page present Deputy
Secretary to Jamaica, whose character at that time was not so
well known as it has been since; and you will perceive by the
papers annex'd, how little regard the sd. Page has had to truth
and how far his zeal in that cause transported him beyond the
rules of common Justice. You will likewise be pleas'd to take
notice, how ill an use Mr. Heywood and the Council have made of
H.M. Instructions for securing the Lord Archd's. person, wherein
in our opinion they were no wise justifiable by those Instrns.,
because they were not directed by H.M. Orders to send the Ld.
Archd. prisoner to England, unless upon examination it shou'd
appear to them, that he was concern'd in the piracy complain'd
of by the Spaniards, the contrary whereof seems to us to be true.
It cannot but be a great misfortune to any Gentleman to be
dismiss'd the service of so excellent a Prince as H.M.; but to be
remov'd in a manner so reflecting upon his character must add
to the mortification; and we are sorry to find the publick has
been so little advantag'd by the change. We shall not take upon
us to determine how far it might be proper for H.M. to comply
with the prayer of my Lord Archibald's Memorial, thô if it
shou'd appear to H.M. that Mr. Heywood and the other persons
complain'd of by his Lordship have been guilty of the facts by
him laid to their charge, we cannot but think it wou'd be for
H.M. service in that Island and contribute very much to the
better supporting H.M. Government there for the future, that
H.M. shou'd shew such marks of his displeasure against them as
to His Royal wisdom may seem most proper. But as to Mr.
Page, we think it highly necessary for H.M. service, that a person
of his character shou'd be remov'd from the place of under
Secretary to the Island of Jamaica and from all offices of trust
whatsoever under H.M. Since it will be impossible for any
Govr. to discharge his duty in so effectual a manner as might
otherwise be expected from him whilst he shall find himself in the
power of a Secry. in whom he cannot repose the least confidence.
[C.O. 138, 15. pp. 504–508.] |
| Oct. 24. |
170. Analysis of preceding, without date. 2 pp. Enclosed, |
|
170. i. Copy of Hamilton's Memorial. (v. Sept. 26, 1717.) |
|
170. ii. Copy of Minutes of the Board of Trade upon hearing
the Lord Archd. Hamilton on each Article of his
Memorial, (v. Journal of Council of Trade). [C.O. 137,
46. Nos. 28, 28 i., ii.] |
Oct. 24.
Whitehall. |
171. Mr. Popple to Governor Hamilton. Acknowledges letters
of 22nd June and 15th July. Continues:—The Council of
Trade and Plantations have commanded me to acquaint you that
they have laid some of the Acts of your Government before H.M.
for confirmation, as the Act for establishing a Court of Chancery
etc., and others to be repealed, as the Act for the Court of King's
Bench, of all which (when H.M. has declared his pleasure) their
Lordps. themselves will give you a full account and of the
objections that are against any of them. In the mean time I am
to observe to you by their direction that most of your Acts have
too much severity in them, which often prevents the cure of the
evil intended to be remedyed by such laws; and therefore their
Lordps. are of opinion that you should endeavour to avoid this
objection as much as possible in all future Acts to be passed by
you. Upon this occasion I am further to desire that when you
transmit over any Acts of your Government you be very particular
in giving their Lordps. an account of the reasons there may be for
or against those Acts. Their Lordps. have considered what you
write in relation to small armes, and have made two reports upon
that matter, but I do not yet hear that anything is done upon
them. However the Agents are solliciting the dispatch of that
affair. I am now to remind you of what the Board writ you,
4th Oct., about transmitting accounts of the Revenue and of the
annual expences of the Government. You tell their Lordps.
indeed, that, that will be found by the Acts passed in each respective Island but it would be much easier to them, and more
easily done by you who are upon the spot, and who can best
know what is raised by your Acts to transmit to their Lordps.
such an account as they desire, and as they think it necessary to
insist on having from you. They have also considered what you
writ in relation to the poor inhabitants of Anguilla, and have
represented to the Lords of the Treasury (who have now under
consideration the disposal of the french lands of St. Christophers)
that so many of the said inhabitants as can be conveniently
disposed of in St. Christophers be setled there upon small plantations to be given them gratis after such poor inhabitants as are
already on St. Christophers have been provided for. In the mean
time their Lordps. are of opinion that you will do well to encourage
the people of Auguilla to remain where they are, till the method
and manner of the disposal of the late French lands be determined
by H.M. And that you endeavour as much as possible to prevent
any of H.M. subjects from removing to foreign settlemts. The
collection of laws that you have sent the Board is not what they
expected, for it contains only the Laws of Nevis, and the general
Laws of the four Islands what their Lordps. therefore desire is
that you would send them one Book of the general Laws by themselves and one for each of the other 4 Islands, that is of such
Laws as are in force. In the mean time while they are transcribing what their Lordps. expect from you is a list of all the
Laws in force under the same distinctions as is abovementioned
in the 5 Books, that their Lordps. may compare those lists, with
the Laws they already have. I am commanded to observe one
thing more to you, and that is upon an Act passed by you at St.
Christophers 27th Nov., 1716, for raising a tax on trade to defray
the publick charges of this Island; which enacts that a tax of 10s.
pr. poll be laid on all negroes, and other slaves, 10s. pr. head on
all horses and mules, and 5 pr. cent. currant money on all other
wares and merchandize of what kind or denomination soever,
(liquors only excepted) imported to this Island and not being
the right and property of any person or persons residing here (all
such and they only being here exempted from the payment of
the said tax) this their Lordps. think very unreasonable and would
have laid the Act before H.M. to be repealed, had it not been
expired, and therefore for the future expect that you will be very
carefull in not passing any Act that may lay a burthen upon the
trade or shipping of this Kingdom according to H.M. additional
Instruction lately sent you. [C.O. 153, 13. pp. 144–148.] |
Oct. 24.
Hampton Court. |
172. Order of King in Council. Confirming Act of New
York to enable Wm. Anderson etc. v. 17th Oct. Signed, Edward
Southwell. Endorsed, Recd. 30th, Read 31st Jan., 1717/18. 1¼ pp.
[C.O. 5, 1051. No. 48; and 5, 1123. pp. 510, 511; and (duplicate,
endorsed, Recd. 24th, Read 25th Feb. 1717/18) 5, 1051. No. 56.] |
Oct. 24.
London. |
173. Micajah and Richard Perry to Mr. Popple. Enclose
following. Signed, Micajah and Richard Perry. Endorsed, Recd.
24th Oct., 1717. Addressed. ¼ p. Enclosed, |
|
173. i. Receipt for a box to be delivered to Lt. Governor
Spotswood. Signed, Constantine Cant. Capt. of the
Burwell. 1 p. [C.O. 5, 1318. Nos. 26, 26 i.] |
| Oct. 25. |
174. William Cocke, Secretary of Virginia, to the Council of
Trade and Plantations. The Laws of Virginia having been lately
transmitted over to me in order to be printed, 'tis found upon
perusal that certain Acts of Assembly, and clauses of others are
repugnant to the laws of Great Britain. As for instance, Anno
1663. An Act prohibiting the unlawfull assembly of Quakers etc.,
which if put in execution would prove injurious to the Colony by
banishing out thereof great numbers of industrious inhabitants.
The 2nd Act of the same Sessions, concerning foreign debts, does
directly establish injustice to English creditors. An Act pass'd
in 1676 limiting the times of receipt and payment of publick tobacco
was repealed by Proclamation but there being among other
clauses therein contained, one declaring who shall not bear office
in the Colony of Virginia, the lawyers who revised the Body of
Laws, are of opinion that this clause is still in force notwithstanding such repeal. Now seeing H.M. has been pleas'd to
repeal an Act made in 1705 entitled an Act, who shall not bear
office in Virginia, 'tis thought reasonable with submission to your
Lordshipps that this clause particularly be repealed, etc. Signed,
Wm. Cocke. Endorsed, Recd., Read Oct. 25, 1717. 1½ pp.
[C.O. 5, 1318. No. 27.] |
Oct. 25.
Whitehall. |
175. Council of Trade and Plantations to Mr. Secretary
Addison. We have consider'd Sir N. Lawes' Memorial, relating to
a dormant Commission for a Lt. Governor of Jamaica (v. Oct. 18),
and having search'd our Books find several precedents of the like
Commissions. We have also discours'd with Sr. Nich. Lawes on
this subject, who represented to us the great inconveniences, that
have formerly happen'd by the Government's devolving on the
eldest Councillor as is now practis'd; Wherefore we intirely
agree that it may be for H.M. service, yt. such a Commission as is
desir'd by Sr. N. Lawes be granted to a proper person; and we
inclose to you the copy of the last we find in our Books given to
Col. Handasyde in June 1702, which may serve for your information in case H.M. shou'd be pleas'd to grant the same. Autograph signatures. 1 p. [C.O. 28, 39. No. 4; and 138, 15.
pp. 509, 510.] |
| Oct. 28. |
176. Copy of the Surrender from the Lords Proprietors of
the Bahama Islands to the King of their right of civil and military
government. Rehearses Charter of Charles II. etc. Concludes
with following clauses of surrender and reservation;—And whereas
the estate, intrest, right and title etc. are by mean conveyances
and assurances in the Law or otherwise by descent legally come
unto and vested in the Most Noble Henry Duke of Beaufort an
infant under the age of 21 years, the Right Honourable William
Lord Craven likewise an infant under the age of 21 years, the
Right Honourable John Lord Carterett, the Rt. Honoble. William
Lord Berkeley, the Honourable Maurice Ashley Esq. and Sr.
John Colleton, Barronett, the present Lords Proprietors of the
said Islands and premisses who are willing and desirous to
surrender all their rights to the civil and military powers of
Government of and in the said Islands and premisses to his Most
Excellent Majesty to the intent that his Majesty may be pleased
to constitute a Governor or Governors of the said Islands and
places aforesaid with such powers, priviledges and authorityes
for the Government thereof and making of such Laws there with
the consent of the Councill and Assembly of the said Islands, and
his Majesty's subsequent approbation thereof as His Majesty in
his great wisdome shall think fitt and convenient Wee therefore
James Berty and Doddington Grevill Esquires Guardians and
Trustees for the Duke of Beaufort Sr. Fullivar Skipwith Baronet
Guardian and Trustee for the said William Lord Craven John
Lord Carterett William Lord Berkely Maurice Ashley Esqr. and
Sr. John Colleton Barronet the said present proprietors of the sd.
Islands for the consideracons and to the intent aforesaid have
surrendred and yeilded up and by these presents for us and our
heirs do surrender and yeild up unto our Soveraigne Lord George
by the grace of God King of Great Brittain France and Ireland
etc. his heirs and successors All those the said powers and
authorityes to correct punish pardon govern and rule all or any
of his Majestyes subjects or others who now are or inhabit in or
shall hereafter adventure into or inhabitt within the said Islands
or either of them and also to nominate make constitute ordain
and confirm any laws orders ordinances direccons and instruccons
for those purposes or any of them and to constitute nominate and
appoint revoke discharge change or alter any Governor or
Governors Officers or Ministers which are or shall be appointed
made or used within the said Islands or either of them and to
make ordain and establish any orders laws direccons instructions
formes or ceremonyes of Government and Magistracy for or
concerning the Government of the said Islands or either of them
or on the sea in goeing or comeing to or from thence or to put in
execution or abrogate revoke or change such as are already
made for or concerning such Government or any of them and
also all those the said powers and authorityes to use and exercise
Martiall Law in the places aforesaid or either of them And of
encountring repelling and resisting by force of arms any person
or persons attempting to inhabitt there without the licence of us
the said Lords Proprietors our heirs and assignes and all other
the powers authorityes and priviledges of or concerning the civill
or military Government of the said Islands or any of them or of
the inhabitants thereof which were granted or menconed or
intended to be granted in and by the said recited Letters Patent
and every of them saveing and excepting out of this present
surrender to us our heirs and assignes all the lands and soyle of
the said Islands and places aforesaid and the rents and quitt-rents issues and proffitts thereof or thereout ariseing or issueing
or to be issueing or goeing thereout and also saveing and excepting
the liberty and freedome of religion in such manner as by the
said Letters Patents is granted And alsoe saveing and excepting
to us the said Lords Proprietors our heirs and assignes all and
singular the ports harbours bays and rivers to the abovemenconed
Island and Isletts belonging and appertaining with the fishing of
all sorts of fish whales sturgeon and all other royall fishes in the
seas bays islands and rivers within the abovemenconed premisses
and the royall fish and others therein taken together with the
royaltye of the sea upon the coast within the limitts aforesaid
And moreover all veines, mines and quarries as well discovered
as not discovered of gold silver gems precious stones and all
other whatsoever be it of stones mettalls or any other thing
whatsoever found or to be found within the Islands and limitts
aforesaid and all other royaltyes libertyes franchises and
priviledges in and by the said Letters Patents granted not
interfering with or relating to the civill and military powers of
Government of and in the said Islands and so as the said Islands
shall be put under and remaine a seperate and distinct Government
and shall not be made any member or part of any Colony in America
or elsewhere nor be depending on or subject to their Government
in anything but be subject imediately to the Crowne of Great
Brittaine as depending thereof for ever etc. Signed and sealed
by James Bertye, Doddington Grevill, Sr. Fullivar Skipwith,
William Lord Berkeley, Maurice Ashley and Sr. John Colleton,
and Maurice Ashley for John Lord Carterett. Endorsed, Recd.
(from Capt. Rogers) Read 6th Nov., 1717. Parchment. 2 large
pp. [C.O. 5, 1265. No. 82; and 5, 1293. pp. 115–126.] |
| Oct. 28. |
177. Mr. Attorney and Mr. Solicitor General to Mr. Popple.
Enclose following in reply to 13th Feb., and to H.M. reference of
the Earl of Sutherland's petition to them. Signed, Edw.
Northey, Wm. Thomson. Endorsed, Recd. 29th Oct., Read
6th Nov, 1717. ¾ p. Enclosed, |
|
177. i. Mr. Attorney and Solicitor General to the King.
21st Oct., 1717. We have jointly considered of
the petition of the Earl of Sutherland for a Charter
of the three Lower Counties upon Delaware Bay etc.
We have heard the persons concerned for William
Penn Esq., and severall mortgagees and purchasers
under him and also Lord Baltimore who severally
claim title to the said Lower Counties being called
New Castle Kent and Sussex And we do most
humbly certifie your Majesty that the said William
Penn is intituled under the grants of K. Charles II to the
Plantation of Pensilvania But that these Counties are
not included in such grant and his title to Pensilvania is
not now contested. And as to your Majesty's title
which the Earl of Sutherland has undertaken to make
out to the said three Lower Counties he has insisted that
the same were gained by conquest by the subjects of
your Majesty's predecessors or granted to your Majesty's
predecessors by the possessors thereof and that thereby
your Majesty's predecessors became intituled to the
same for that a subject of the Crown could not make
foreign acquisitions by conquest but for the benefit of
the Crown And that the length of possession will be no
barr to the Crown That for severall years last past Mr.
Penn hath had the possession of the said Lower Counties
under a pretence of a grant thereof to him made in 1682
by the late King James when Duke of York who then
had the possession of New York and the said three
Lower Counties; but had no right to the said Lower
Counties and therefore could not transferr any right
in the same to the said Mr. Penn which appears For that
the said late King afterwards when Duke of York in
1683 obtained a warrant from the then King Charles II
to pass a Patent whereby the said three Lower Counties
should have been granted to the said then Duke of York
And a copy of a Bill to pass into a grant in April 1683
to the said James Duke of York of the said three Lower
Counties has been produced by the said Earl of Sutherland And it is alledged the same was never past into a
grant And that if the same had past into a grant it
would not have made Mr. Penn's title to the said Three
Lower Counties to be good, the title of the said Mr. Penn
under the Duke of York being precedent to the title of
the said Duke of York but that the same did remain in
the said Duke of York and is consequently now in your
Majesty And that your Majesty's title further appeares
For that after in May 1683 when the then Lord Baltimore
by petition opposed the passing the said Bill under the
Great Seal Mr. Penn then appeared against the said
Lord Baltimore as Agent for the Crown and not on
behalf of himself And Mr. Penn under his hand has
declared that your Majesty's Royal approbation and
allowance of the Deputy Governor of Pensilvania and
the three Lower Counties on Delaware River named by
him shall not be construed to diminish or sett aside the
right claimed by the Crown to the said three Lower
Counties Besides the said Earl of Sutherland insists that
in the grant of the said Duke of York in 1682 to Mr.
Penn of the said Three Lower Counties there is a
reservation of an account to be made of one moiety of
the profits of the lands thereby granted touching which
no account has yet been rendred by Mr. Penn and that
therefore if the said grant in 1682 was effectual the said
Mr. Penn is yet accountable to your Maty. for the
moiety of all the profits of the land so granted from the
year 1682 according to the said reservation, And that
that if the said Earl of Sutherland cannot by your Maty's
favour be intituled to the said Three Lower Counties
he humbly prays he may have the benefit of the said
account. In answer to which on the behalf of Mr.
Penn's mortgagees and other purchasers under him it
hath been alledged that the late King James II when
Duke of York was seized in fee of the said Three Lower
Counties and as one argument to prove such seizin they
have produced Letters Patents dated the 29th of June
26° Car. 2d1 whereby his said late Maty. King Charles II
granted to the said James late Duke of York his heires
and assigns all that part of the main land of New
England beginning at a certain place called or known by
the name of St. Croix adjoyning to New Scotland in
America and from thence extending along the sea
coast unto a certain place called Pemaquinne or
Pemaquid and so up the river thereof to the further
head of the same as it tendeth northward and extending
from the River of Kinebequin and so upwards by the
shortest course to the River Canada northwards
And all that Island or Islands commonly called by the
several name or names of Matewaicks or Long Island
scituate and being towards the west of Cape Codd and
the Narro Higansetts abutting upon the mainland
between the two rivers there called or known by the
several names of Connecticut and Hudson River together
also with the said river called Hudson's River And all
the lands from the West side of Connecticut River to the
East side of Delaware Bay And also all those severall
Islands called or known by the name of Martin Viniard
and Nantacks otherwise Nantakett Together with all
the lands islands soyles rivers harbours mines mineralls
quarries woods marshes waters lakes fishings hawkings
hunting and fowling and all other royalties profits
commodities and hereditaments to the said several
islands lands and premisses belonging and appertaining
with their and every of their appurtenances And all
his said late Majty's. estate right title and interest
benefit advantage claim and demand of in or to the said
lands and premisses or any part or parcell thereof
And the revercon and revercons remainder and remainders together with the yearly and other rents revenues
and profits of the premisses and of every part and
parcell thereof att and under the yearly rent of 40
beaver skins when they shall be lawfully demanded or
within 90 days after such demand made with powers
of Government Within the descriptions of which grant
it hath been agreed by both parties that the said three
Lower Counties are not contained But on the behalf of
Mr. Penn etc. it hath been insisted that by the general
words Together with all the lands Islands soyles etc.
the said three lower Counties did pass as belonging to
the premisses expressly granted by the said Letters
Patents for that the three Lower Counties were enjoyed
by the said late Duke of York together with New York
which was granted by the said Letters Patents unto the
said late Duke of York untill he granted the same to the
said William Penn in 1682 by the grants hereinafter
mentioned Which seems difficult to us to be maintained
since the abuttall in the said Letters Patents exclude the
three Lower Counties But they presume the said late
Duke of York might have some other grants thereof
which Mr. Penn might give an account of but cannot
being under a Lunacy And we do further humbly
certifie your Majesty that by indenture dated 24th Aug.
1682 made between the said late Duke of York of the one
part and the said William Penn of the other part the
said late Duke of York for the consideracons therein
menconed did bargain sell enfeoffe and confirm to the
said William Penn and his heirs all that the town of
Newcastle otherwise called Delaware And all that tract
of land lying within the compass or circle of twelve miles
about the same scituate lyeing and being upon the
River Delaware And all islands in the said River Delaware and the said River and soil thereof lyeing north of
the southermost part of the said circle of twelve miles
about the said town together with all rents services
royalties franchises duties jurisdictions liberties and
priviledges thereunto belonging And all the estate right
title interest powers property claim and demand whatsoever of the said late Duke of and in or to the same or
to any part or parcell thereof At and under the yearly
rent of five shillings with a covenant for farther assurance.
And the said late Duke did thereby constitute and
appoint John Moll and Ephraim Harman or either of
them his Attorney with full power for him and in his
name and stead to deliver seizin of the premisses granted
by the said last recited indenture to the said Wm. Penn
and his heirs. And the said late Duke of York by
another indenture bearing date the said 24th of August
1682, and made between the said late Duke of York of
the one part, and the sd. Wm. Penn of the other part for the
consideration therein mentioned did bargain, sell, infeoffe
and confirm unto the said Wm. Penn and his heirs, all
that tract of land upon Delaware River and Bay beginning
12 miles south from ye Town of Newcastle otherwise called
Delaware and extending south to the Whore Kills
otherwise called Capin Lopen [Cape Henlopen] together
with free and undisturbed use and passage unto and out
of all harbours, bays, waters, rivers, isles and inlets
belonging to or leading to the same together with the
soil, fields, woods, underwoods, mountains, hills, fenns,
isles, lakes, rivers, rivulets, bays, and inlets situate in or
belonging unto the limits and bounds aforesaid together
with all sorts of minerals. And all ye estate, intrest,
royalties, franchises, powers, privileges, and immunities
whatsoever of the sd. Duke of York therein or in or unto
any part or parcel thereof at and under the yearly rent
of one rose. In which said last mentioned indenture is
contained a covenant on the part of the said Wm. Penn
his heirs or assigns within the space of one year next
ensuing the date of the said indenture to erect or cause
to be erected and set up one or more publick office or
offices of registry in or upon the said last bargained
premisses wherein truly and faithfully to account set
down and register all and all manner of rents and other
profits which he or they or any of them shall by any
ways or means make, raise get or procure of in or out of
the said last bargained premisses or any part or parcel
thereof. And also at the Feast of St. Michael the
Archangel yearly and every year shall well and truly
yeild pay and deliver unto the said late Duke of York
His heirs and assigns one full moiety of all and all manner
of rents, issues and profits as well extraordinary as
ordinary as shall be made or raised upon or by reason
of the premisses or any part thereof with power to the
said late Duke of York his heirs and assigns in case
the same shall be in arrear 20 days to enter in and upon
the same premisses or any part thereof and there to
distrain and the distresses to detain until payment of
the said moiety and arrears thereof together with all
costs and damages for the same. And by the same
indenture the said John Moll and Ephraim Harman or
either of them were appointed in like manner Attorney
or Attorneys to deliver seizin of the last bargained
premisses to the said Wm. Penn and his heirs. Both
which said indentures were entred in the Office of
Records for ye Province of New York on the 21st of
Novr. 1682, within wch. said grants the said three lower
Counties are contain'd but the covenant to account
extends only to what is included in the last recited
grant. That by an order by the Commander in Chief
and Council of New York dated at New York 21 Novr.
1682, reciting the said two recited indentures, and
reciting, that the said Commander and Council, were
fully satisfy'd of the said Wm. Penn's right to the
possession and enjoyment of the premisses had therefore
thought fit and necessary to signify and declare the same
to the several Justices of ye Peace Magistrates and other
Officers at Newcastle, St. Jones Deale als. Whore Kill,
at Delaware, or within any of the bounds and limits
abovemention'd to prevent any doubt or trouble that
might arise; and after having thanked the said Magistrates for their good services in their several offices and
stations during the time they remained under his sd.
late Royal Highnesses Government, they declare they
expected no further account, than that they should
readily submit and yeild all due obedience and conformity to the powers granted to the sd. Wm. Penn in
and by the said indentures. Which said order was the
25th of October 1701 entred in the Rolls Office at
Philadelphia. It appears by the affidavit of Thomas
Grey, who swears he lived in Pensylvania from the year
1699 to the year 1707, and that he made out and saw
many patents or grants and warrants whereby considerable quantities of lands lying in the said three lower
Counties which as he deposes are esteemed to belong
to Pensylvania were granted to divers persons and their
heirs some of which grants or warrants were signed by
the sd. Wm. Penn, and the rest by his Agents or Commissioners, and all sealed with the seal of the said
Province; and that he hath seen great improvemts.
in building and planting by persons claiming under such
grants. That many of the said inhabitants who were
reputed to have settled upon lands in the said lower
Counties by virtue of grants or patents, and warrants
either from the Swedes or Dutch when the said Counties
were in their hands respectively or from the Governor
of New York under the said late Duke of York when
the same was in his hands did upon making up their
accounts of quit-rents due from them to the said William
Penn for their lands accept new patents from the said
Wm. Penn or his Agents, and have since much increased
their improvements thereof both in building and
planting. That he hath seen patents or instruments
for conveying lands in the said lower Counties to divers
of ye ancient inhabitants thereof, as well from ye Swedes
or Dutch as the Governors of New York under the sd.
late Duke, as also Commissions under the hands of some
one of the said Governors of New York constituting
Magistrates and officers in the said lower Counties.
That he believes that the Patents of lands in the said
lower Counties granted by the said Governors of New
York were registred at New York, and that if search
were made in the Secry's Office there, the same would
appear so to be. That he believes much the greatest
part of the inhabitants of the said lower Counties, who
have land there hold the same by title under Mr. Penn,
and that several who hold land there by other title
have delivered the same up and have accepted new
grants from Mr. Penn. And it also appears by the
affirmation of Robt. Hiscox a Quaker, that the Naval
Store Company in Bristol have by their Agents made
several purchases of the said Wm. Penn of 3120 acres
of land in the County of Kent, and that the said Company
hath expended for purchasing lands, building thereon
and other improvements, and in carrying on their
manufacture for raising hemp upwards of 2000li. and are
by their articles obliged to lay out 5000li., of which the
said 2000li. is part, and that he expects in a short
time the greater part of the remaining 3000li. will be
laid out in the managemt. and carrying on the said
manufacture, and that no benefit hath yet accrued to
the said Company for ye mony so expended, and that
he believes other purchases are already made for the use
of the said Company. And as to the said Earl of
Sutherland's objection, that the Duke of York in 1682,
had no title to the lower Counties, and therefore those
grants then made to Mr. Penn were void, which appears
by a copy of a bill dated 13 April 1683 in order to be
passed into a grant of the said three lower Counties to
the said late Duke of York, which is after the grant by
the Duke of York to the sd. Wm. Penn but never passed
into a grant, and which bill recites a surrender of certain
Letters Patents bearing date the 22nd of Mar. then last
past, (which grant cannot be found) of the Town of
Newcastle otherwise Delaware and Fort thereunto
belonging, lying between Maryland and New Jersey in
America. And several other lands, tenements and
hereditaments therein mentioned the said late King
Charles the Second for the consideratn. therein mentioned did grant to the said late Duke of York and his
heirs all that the Town of Newcastle other wise called
Delaware and Fort therein or thereunto belonging lying
between Maryland and New Jersey in America, and all
that River called Delaware and soil thereof and all
Islands in the said River and all that tract of land upon
the West side of the river and bay of Delaware, which
lyeth from Skoolkill Creek upon the said River unto
Bombeys Hook and backwards into the woods so far as
the Minquas country, and Bombey's Hook on the said
River and Bay unto Cape Henlopen now called Cape
James being the South point of a sea Warmet Inlet and
backwards into the woods three Indian days journeys
being formerly the claim or possession of the Dutch
(or purchased by them of the natives) or which was by
them first surrendered unto his said late Majesty's
Lieut. Governor Col. Niccols, and which had been since
surrendered unto Sir. Edmd. Andros Lieut. Governor of
the said James Duke of York, and had for several years
been in his possession, with the free use and continuance
in, and passage into and out of all and singular ports,
harbours, bays, rivers, isles and inlets belonging unto or
leading to or from the said tract of land or any part or
parcel thereof; And the seas, bays and rivers and soil
thereof bending eastward and southward on the sd.
tract of land and all islands therein. And also all the
soil, lands, fields, woods, underwoods, mountains, hills,
fenns, swamps, isles, lakes, rivers, rivulets, bays and
inlets, situate and being within the said tract of land,
and any of the limits and bounds aforesaid; together
with all minerals quarries fishings, hawkings, huntings
and fowlings, and all other royalties, privileges, proffits,
commodities and hereditaments to the said town, fort,
tract of land and premises, or to any or either of them
belonging or appertaining with their and every of their
appurtenances in America. And all his said late
Majesty's estate, right, title, intrest, benefit, advantage,
claim and demand whatsoever of in or to the sd. town,
fort, tract of land and premises, or any part or parcel
thereof, together with ye yearly and other rents, revenues
and profits of the premises and of every part and parcel
thereof. To hold to the sd. Duke of York and his heirs
at and under the yearly rent of one beaver skin when
demanded. On the behalf of Mr. Penn it is alledged;
That it is probable the said bill in 1683 might have been
passed into a grant; for that they produced from the
Hanaper Office, where entries are made of grants that
pass the Great Seal, a certificate of an entry in that
Office in the words following, vizt: April the 6th 1683
A grant to James Duke of York of the Town of Newcastle als. Delaware, situate between Maryland and
New Jersey in America to him and his heirs for ever,
such entries not being made at the Hanaper Office but
where Letters Patents do pass, which Patent might
happen not to be enrolled, as it is not by the neglect of
the Six Clerk called the Riding clerk, whose business
it was to see the same inrolled. And as to the objection,
that if the same were inrolled, that the same is a title
subsequent to ye grant to Mr. Penn, and that Mr. Penn
appeared as Agent for the Crown against the Lord
Baltemore, they do humbly insist that Mr. Penn having
a grant then so lately from the said late Duke of York
might make use of the name of the said Duke with his
leave in trust for the said Mr. Penn and his heirs, which
they the rather apprehend for that the possession was
always suffered to remain with the said Wm. Penn.
And that if the sd. grant was passed and the said grant
was in trust for the said Wm. Penn, the same extinguished the said covenant of Mr. Penn for accounting in
the grant made to him thereof. Besides in the said last
grant to the Duke of York it is recited that the lands
were formerly the claim and possession of the Dutch and
had been surrendered unto the Lieut. Governor of the
said Duke of York, and had for several years been in
his possession, which might enable him to make the
grants in 1682 to the sd. Mr. Penn. And on the behalf
of the purchasers it has been insisted, that it would be
very hard to put them to any trouble who have bought
under ye title and enjoyment of Mr. Penn, and have
laid out great sums of mony in improving their purchases. And as to the title claimed by the Lord
Baltemore we are humbly of opinion that ye same has
already received a full and a final determination. For
that 31 May 1683 Richard Burk Gent. servant to
Charles Ld. Baltemore praying that the sd. Bill of 1683
might not pass the Great Seal until his then Majesty
should be satisfy'd of the extent of the Letters Patents
formerly granted to Cecil Lord Baltemore; wherein
the said town and adjacent country is alledged to be
comprized, which said petition being referred to the
then Lords Commissioners for Trade and Plantations
on the 13th of Nov. 1685 their Lordships made their
report, wherein they report that having examined the
matters in difference between the Ld. Baltemore and
Wm. Penn Esq. on behalf of his then Majesty concerning
his tract of land called Delaware, they found the land
intended to be granted to Lord Baltemore was only
lands uncultivated and inhabited by savages, and that
the tract of land then in dispute was inhabited and
planted by Christns. at and before the date of the Lord
Baltemore's Patent, as it had ever since to that time and
continued as a distinct Colony from Maryland. So that
their Lordships humbly offered their opinion that for
avoiding further differences the tract of land lying
between the River and the Eastern Sea on the one side
and Cheasapeak Bay on the other be divided into equal
parts by a line from the latitude of Cape Hinlopen to the
40 degree of Northern latitude, and that one half thereof
lying towards the Bay of Delaware and the Eastern Sea
be adjudged to belong to H.M., and the other half to
Lord Baltemore. Which report his then Majesty was
pleased to approve of, and to order the said lands to
be divided accordingly and the Lord Baltemore and
Wm. Penn required to yield due obedience thereunto,
which Rept. was also confirmed 22nd June 1709 by her
late Majesty Queen Ann in Council, however this
petition is a very great argument, that the Bill of 1683
to the late Duke of York never passed the Great Seal as
on Mr. Penn's behalf is supposed for that it being stopt
as must be presumed in that petition or grant after that
matter settled which was in 1685 in the reign of the sd.
Duke when King of England, could not pass the Great
Seal in the name of King Charles to the Duke of York
then being King of England but the entry in the Hanaper
Office might have been made when the Privy Seal was
brought to the Great Seal to be passed into a grant.
On the whole matter we humbly submit it to your
Majesty's consideration whether it will not be reasonable
that your Majesty's title should be established by ye
Court of Chancery before any grant should be made of
the premises. And if any grant should be made we
most humbly submit it to your Majesty, whether the
claims of purchasers or grantees under Mr. Penn who
have improved part of the said three lower Counties
should not be established; But if Mr. Penn should have
a title to the three lower Counties by virtue of ye two
grants made to him by the late King James in 1682,
when Duke of York we have not received any answer
why he should not account according to his Covenant in
the last of the said deeds for the moiety of the rents,
issues and profits raised by virtue of that grant.
Signed and endorsed as preceding. 14½ pp. |
|
177. ii. Duplicate of C.S.P., 1716–17, No. 434. |
|
177. iii. Duplicate of C.S.P., 1716–17, No. 434 i. [C.O. 5,
1265. Nos. 83, 83 i. (without Nos. ii., iii.); and (without
enclosures) 5, 1293. p. 127; and (enclosures only) 5,
1233. Nos. 57, 57 i., ii.] |
Oct. 31.
Hampton Court. |
178. Order of King in Council. Referring following to the
Council of Trade and Plantations for their report. Signed,
Robert Hales. Endorsed, Recd. 5th, Read 6th Nov., 1717.
1¼ pp. Enclosed, |
|
178. i. Petition of the Court of Directors of the South Sea
Company to the King in Council. Pray H.M. to
disannull the Act of Jamaica, 1716, and any future Act
of Jamaica imposing a duty upon negroes brought in
and exported by the Company, etc. Signed, Ja. Bateman,
Sub. Governor, Saml. Shepheard, Deputie. Copy.
3½ pp. Enclosed, |
|
178. ii. Copy of petition of the South Sea Company, C.S.P.
1716, No. 67 i. [C.O. 137, 12. Nos. 92, 92 i., ii.;
and 138, 15. pp. 510–517.] |
Oct. 31
Hampton Court. |
179. H.M. Warrant granting a free pardon to Rebecca Curl
of Barbados (v. 25th May, 1717). Countersigned, J. Addison.
[C.O. 324, 33. pp. 108, 109.] |
Oct. 31.
Hampton Court. |
180. H.M. Commission to Thos. Bernard to act as Lt.
Governor of Jamaica in case of the death or absence of Governor
Sr. Nicholas Lawes. Countersigned. J. Addison. [C.O. 324, 33.
pp. 109, 110.] |
