Calendar of State Papers Colonial, America and West Indies: Volume 34, 1724-1725. Originally published by His Majesty's Stationery Office, London, 1936.
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The papers here dealt with cover the years 1724 and 1725 and were abstracted by the late Mr. Cecil Headlam to form the eighteenth volume of the Colonial Calendar upon which he had been engaged as editor from 1905 to 1934. Unfortunately he was carried off by a comparatively early death before he was able to write the Preface to the volume, and that task has fallen to a new hand.
The publication of the Calendar of State Papers, Colonial Series, America and West Indies began two generations ago, and though it has been pursued uninterruptedly for three-quarters of a century, it has demanded the labours of but three editors in succession during that long period. The first volume was prepared by W. Noel Sainsbury, and published under the direction of the Master of the Rolls (Sir John Romilly) in 1860. It covered the period from 1574 down to the Restoration of 1660, wherein the colonial papers in the public archives were comparatively scanty; succeeding volumes, however, have each dealt with a much shorter period. Between 1860 and 1893 four volumes appeared in the America and West Indies Series under Sainsbury's editorship, the second, third and fourth covering the period down to 1676 together with a considerable mass of Addenda for the early period. On Sainsbury's death in 1895 the work was taken up by the late Sir John Fortescue, and he brought out seven volumes of the Calendar including the papers of the years 1677 to 1698. When he resigned in 1905, Mr. Cecil Headlam became editor. In the seventeen volumes published between 1908 and 1934 he covered the period from 1699 to 1723, each of the later volumes including the papers belonging to two successive years. Before his last illness he had abstracted the papers of some later years, but had not prepared the Prefaces to the volumes in which they were to be published.
Provenance of the State Papers. The provenance of the papers here dealt with has been mentioned in the Prefaces to early volumes of the Calendars of State Papers, (fn. n1) but it is convenient here to recapitulate some of that scattered information in order to recall certain points in regard to the sources of the materials included.
After the appointment of Sir Thomas Wilson as Keeper of the State Papers in 1612, it was ordered that the papers of the Secretaries of State should be deposited, when they ceased to be immediately needed, in his custody in the State Paper Office. In fact, however, this regulation was very imperfectly obeyed, and many Secretaries of State carried away their papers when they left office. The collection of papers now preserved under the custody of the Master of the Rolls is therefore imperfect, and there are many gaps.
In the storing of the papers Wilson introduced a twofold division:—State Papers, Foreign, dealing with relations with foreign powers, and State Papers, Domesticall, including the rest of the papers that had passed through the Secretaries' office, with a rudimentary sub-division for Irish papers. In the eighteenth century the papers sent from the Colonies to the Secretary of State were kept apart, but the separation was imperfect, and many papers of colonial interest were included in the State Papers, Domestic. When the State Paper Office was amalgamated with the Public Record Office in 1852–4, and the modern system of calendaring began, the papers of the Secretaries of State dealing with colonial affairs were sorted out, as far as possible, and the class of State Papers, Colonial was made comprehensive. (fn. n2) The series necessarily shared in the imperfections of the collection from which it had been separated, and when the papers of a particular Secretary of State were not transferred to the State Paper Office, there are gaps both in the Domestic and the Colonial Series.
Papers of the Board of Trade and Plantations. From the Restoration onwards colonial affairs, especially of an economic sort, were dealt with by various successive committees or councils, finally reorganised in 1696 as the Commissioners for Trade and Plantations, commonly called the Board of Trade. A large amount of colonial correspondence passed through the Board, and their papers were preserved in a special repository, until they ultimately came into the Public Record Office soon after its organisation at the beginning of Victoria's reign. They were sorted out into two main divisions, (1) the Colonial papers, and (2) the papers relating to foreign and home trade (now Board of Trade, Commercial, C.O. 388, 389, 390).
The colonial papers from the Secretaries of State and those from the Board of Trade and Plantations were combined in 1911, (fn. n3) and the joint collection furnishes the whole of the papers that are here calendared. There are papers of colonial interest for the period in other sections of the Public Record Office, but they are not dealt with in this Calendar.
The Newcastle Papers. Throughout the early months of 1724 the Secretary of State for the Southern Province, to whose care colonial affairs were entrusted, was Lord Carteret, but in April, 1724, he was appointed Lord Lieutenant of Ireland and was succeeded by Thomas Pelham-Holles, Duke of Newcastle. Thus began a tenure of the Secretaryship that lasted without a break for twenty-two years down to 1746. Thenceforward until 1754 Newcastle was in charge of the Northern Department. Later, down to 1766, he held various other ministerial positions (including for a time that of First Lord of the Treasury with the Premiership), but after 1754 he had less touch with colonial affairs.
During the period of 1724 to 1746 Newcastle's papers are an essential complement to those in the series with which we are dealing, and which are now preserved in the Public Record Office. While some of the papers that passed through his hands as Secretary of State were filed in the State Paper Office, as they properly should have been, others of exactly similar character remained in his own possession and did not come into public custody until the collection of Newcastle Papers was acquired by the British Museum in 1886. There it is now preserved among the Additional MSS.
The correspondence is arranged chronologically in 307 volumes, divided into two series, Home and Diplomatic, according to the traditional method of the Secretary of State's office. The volumes are listed in the Catalogue of Additions to the Manuscripts in the British Museum, 1882–1887, pp. 230–252, and there is a full index to the writers and addressees of the individual papers contained in them. The main series is numbered from Add. 32,686 to Add. 32,992, and there are in addition three volumes, (Add. 33,028–33,030) containing papers relating to the American and West Indian Colonies. These include instructions, memoranda, memoirs, petitions and other documents which passed through the Duke of Newcastle's hands in the course of public business, 1710–1768. They really form part of the series of State Papers, Colonial, and so are complementary to the papers calendared here. (fn. n4)
Journal of the Commissioners for Trade and Plantations. The Commissioners for Trade and Plantations kept an elaborate Journal of their proceedings and of the business that passed through their hands. Down to 1703 the colonial items from that Journal were included in chronological order in the Calendars of State Papers, Colonial, but from 1704 onwards the Journal has been published in its entirety in a separate series of volumes. These, and the modern indexes with which they have been provided, are essential accompaniments to the papers here dealt with, for they enable us to trace with ease the way in which the Board dealt with the business arising in our papers, and in the summaries of verbal evidence given upon it by witnesses called before the Board they frequently provide complementary matter. The entries for the years 1724–5 are included in the volumes of the printed Journal covering the period 1723–8. (fn. n5)
The Secretaries of State. In accordance with the arrangement made in 1704 correspondence relating to the colonies was dealt with by the Secretary of State for the Southern Department (or Province), (fn. n6) and most of the letters coming to the Secretary were addressed to Carteret or Newcastle by name. But both Secretaries were equal in power and function, and so we occasionally find Townshend, though Northern Secretary, signing a letter or giving an order that would normally have come from his Southern colleague. (Nos. 115, 229, 321, 383). Almost from the beginning of Newcastle's tenure of office, we find an increase in the number of letters concerned with patronage and a cessation of consultation with the Board of Trade on the suitability of particular persons for office. The Duke liked to have all the threads in his own hands. Even the foremost persons in the Colonial service tried to win his favour, for, as the Duke of Portland, Governor of Jamaica, wrote, it was necessary to secure the continuance of his Grace's "favour and assistance in the dispatch of affairs, and particularly in being countenanced at home, which is so necessary, having to do with a strange sort of people." (444). Suppliants even in distant colonies tried to propitiate the Duke by small presents, as when Richard Bradley, Attorney General of New York, who wished to be appointed to the Council, asked Newcastle's acceptance of "a dozen of American partridges" which he sent over by a special bearer. (453).
The Under-Secretary. The modern Civil Service was not fully developed at the period, but though the informal usages of the early seventeenth century still nominally prevailed, in reality the system was much closer akin to that of the present day. Thus the letters show that Charles Delafaye was one of the most influential persons dealing with colonial matters, but he simply appears in our index as "Secretary to the Duke of Newcastle." In reality he was not a mere factotum (or private secretary, as we should now say), but held a position comparable with that of the modern Permanent Under-Secretary for the Colonies. This is indicated by the fact that he was performing the same functions under Newcastle as he had done under Carteret. In August 1724 Francis Nicholson, Governor of South Carolina, wrote to congratulate him on "being appointed Deputy Secretary of State to his Grace the Lord Duke of Newcastle, so that all H.M. Governments will be happy under your administration." (312). Delafaye was also Secretary to the Lords Justices who discharged the King's functions during the absence of George II in Hanover. In fact, he must have been a person of importance in the work of the Government, and an early member of the line of those great civil servants of whom the most celebrated was Sir James Stephen, a hundred years later.
The Legal Adviser to the Board of Trade. Stephen is also recalled when we consider the important functions of another person, Richard West, the counsel to the Board of Trade, who performed similar work to what Stephen did for some years as Legal Adviser to the Colonial Office. The Attorney and Solicitor-General only gave opinions on colonial questions occasionally, and the Board of Trade frequently had to complain of the long delays that were interposed before those opinions were delivered (e.g. 326, 419). West was constantly being consulted on the legality and advisability of colonial acts, and his opinions were delivered promptly and with exemplary clarity. West acted until May 1725, (614), when he was appointed to be Lord Chancellor of Ireland. He was succeeded by Francis Fane, (fn. n7) who was appointed by letters patent on 19 August 1725, (711). His opinion was first asked by the Board on 15 September 1725 (726), and he replied on 25 October 1725, (761), after about the usual period of waiting.
Offices and Officers of the Board of Trade. The Commissioners for Trade and Plantations were now comfortably established in their new offices, whose preparation was mentioned in the previous volume. (Cal. St Pap., Col, 1722–3, Preface, p. xiii). The cost of the removal amounted to 10l. 19s. 6d. (101), and in their new quarters the Board were allowed the service of a porter at a wage of 40l. per annum in addition to their usual two messengers, (264). Alured Popple, the third of his line, was serving as Secretary with eight clerks. The Earl of Westmorland was President, but neither he nor the other members of the Board make any appearance in the papers, for the Board always acted as a unit, and we hear nothing of the divisions that must have taken place on controversial questions. Both commissioners and staff must have worked hard, judging by the amount of business done, but they had to wait long for their salaries. In July 1724 they complained that the pay of their Secretary and his officers was 9 months in arrear. (250).
Patent Officers in the Colonies. The pernicious system of permitting the officers who held places in the Colonies by patent to employ deputies to perform their duties while they remained in England, gave rise to endless difficulties in most of the colonies, and they fill many of the pages in this volume. In some cases, the Governor himself entrusted his functions to a deputy or Lieutenant-Governor, as the Earl of Orkney did in Virginia (40). Lord Carteret was pressed to take for himself the Governorship of South Carolina and the proposer offered to serve as his deputy. (40). But upon occasion a man of high rank took a Governorship and worked hard and well in it. The outstanding example was that of the Duke of Portland, who as Governor of Jamaica had some of the most difficult work to do in the Colonial service. His letters to the Secretary of State are longer and more numerous than those of any other Governor in the volume, yet they are strictly to the point and give a favourable impression of his diligence and capacity.
Jamaica. With the advantage of his rank and considerable influence with the Home Government, Portland was able to take a stronger line against the patentee scandal than other Governors, but he had to suffer much in his efforts to secure proper execution of their duties by the patentees' deputies. Many of his letters contain long passages describing his difficulties. In December 1724 the Governor wrote to the Board of Trade to complain that "amongst those who have been the most industrious to oppose the Government, some of them are persons, who enjoy places here [i.e. Jamaica] by patent. They look upon themselves as independent, and upon their places as freeholds, thinking they are not at all obliged either to assist, or in the least countenance the Government. He, who has distinguished himself most in showing all the contempt in everything he could, is the Provost Marshal, who, though he is called so, is only Deputy to Mr. Rigby, who himself officiates here as one of the Agents of the South Sea Company." (443, pp. 287–8). The Board assured the Duke of their support, but this was very poor comfort, and he replied by asking certain very pertinent questions:—"My Lords, what I should be glad to know, and desired your advice and opinion in, was that, whereas in my instructions I am directed to inspect into the behaviour of the Deputies put in by the patentees, and also of the patentees; to suspend them upon misbehaviour etc., how I can execute, and how I must proceed in what is expected from me by that instruction, when deputies and patentees are, as they insisted upon, independent and in a manner bid defiance to any superior power here. . . . . Upon the suspension of a Deputy [they] insist upon their right of nominating others, declaring they will nominate none but such as shall be more and more disagreeable." (810, p. 478).
In the same despatch and in a personal letter to Newcastle of the same date (18 December 1725) Portland put his finger on the true cause of these constant troubles of indiscipline from which every Governor throughout the Colonies suffered. "The troublesome difficulties one meets with here are full enough to struggle with, but if it be possible for the people so much to suspect that the least support is wanting, or that those who are inclined to oppose the Government can have the least encouragement, all attempts to succeed in anything recommended from Home may be laid aside. All what the Government here has to influence is the people's expectations of being recommended to favours from home. If or whenever they can perceive they are to be come at by any other channel, it renders the Government here entirely insignificant, so that it must be exposed to encounter or suffer whatever the most unaccountable tempers can forge." (810, p. 483). "People here are always ready to draw from the most minute thing done at home" what advantage they can. It is necessary "that they should be made sensible (so as to be convinced) that it is to be expected at home [that] a just regard should be had here for H.M. Government, and be satisfied that a dutiful behaviour to H.M. is the only way to obtain favours." If "upon application at home, favours can be obtained by other channels than by deserving them from the Government, . . . all power, or more properly the only influence, one can have here, is gone and lost." (811, p. 485).
Leeward Islands. Other Governors of lesser rank found the insolence and neglect of duty on the part of the patentees and their deputies just as flagrant, and by the influence of these persons with their patrons, the Governors, if their actions against vested interests and abuses were too drastic, might be summoned to England to justify their proceedings before the Board. Thus Colonel Hart, Governor of the Leeward Islands, in consequence of his efforts to secure proper and efficient service from Wavell Smith, Patent Secretary of the islands, was accused by him and his adherents of many offences of misgovernment and was compelled to appear by counsel before the Board to answer the charges (701). The greater number of the charges referred to petty technicalities, and the general impression left from a perusal of the voluminous correspondence relating to the matter is that the Governor was trying his best to do his duty under very difficult circumstances, and that he was the object of malicious attack from those whose malpractices he was endeavouring to curb. (391, 509, 657, 666, 777, 806, 821, 833 etc.) At the bottom of the whole trouble there lay the eternal canker of the system of paying officers by fees and their piling up to pay deputy upon deputy.
Some of the patent officers paid their deputies a mere pittance for performing the duties of the office, as Governor Hart described in his letter of 16 March 1723/4;. "I must own that the Patentee of the Secretary's office of this Government [of the Leeward Islands] [Mr. Wavell Smith], has put his Deputies upon such a rack rent that persons who have a capacity for them can find better bread in other employments. If I should suspend the Deputy [who has proved so careless and inefficient] I know not where to get any person to supply his place," (91). As these deputies of the Secretary had to prepare the records of the various Councils and Assemblies in the particular islands, Montserrat, Nevis, etc., the many gaps and defects in the records of the islands are partly explained.
New York The most serious dispute over the action of Patentee's deputies and the Royal prerogative was that in the colony of New York which was of long continuance. In previous volumes of the Calendar (Cal. St. Pap., Col., 1730–1, pp. xxxi–xxxii; 1722–3, pp. xxix–xxx) reference was made to the dispute between Horace Walpole, the Patentee holding the office of Auditor General of the Plantations, and the Assembly of New York who refused to allow his Deputy, George Clarke, to audit the Treasurer's accounts. The Lords Commissioners had reported that the Assembly's proceedings constituted a very great invasion of the Royal prerogative which "may tend to their making themselves independent of the Crown of Great Britain." Governor Burnet was therefore ordered to use his utmost endeavours to have all the revenues returned into the hands of the officers appointed by the King. The Assembly at length yielded to pressure, and agreed to the annual auditing of the revenue by Walpole's deputy and the payment of the arrears of fees of 5 per cent. due to the Auditor General, amounting to £2232. (Cal. St. Pap., Col., 1722–3, p. 394). The members of the New York Assembly thought it a hardship to allow 5 per cent. upon the audit of this amount raised to discharge the warrants signed for the payment of the arrears of fees of the Auditor General, but Philip Livingstone, Secretary for Indian Affairs in New York, wrote to Walpole to say that he had advised them that it was in vain to struggle against it. The Auditor General would always be entitled to his fees of all public moneys raised for support of the Government, and they ought to allow public moneys to be received by the Collector and Receiver General appointed by the Crown in preference to a specially nominated Treasurer. (191).
However, the matter still dragged on, and Walpole could not get his money, for the Assembly had inserted a clause in their Act confining the payment of the arrears to "officers residing in the Government." As George Clarke, the Deputy Auditor, wrote to Walpole, some mask was always upon what was done, to let the world see that it was submitted to for the present only and of necessity. (375). In 1725 the Duke of Newcastle took up the matter and wrote strongly to Governor Burnet on the principle involved. The poverty of the Province was plainly not the reason for the Assembly's endeavouring to set the Auditor General aside, as they had in effect done with the King's Receiver. "The Prerogative of the Crown," he wrote in June, "is so apparently concerned in the affair that you [the Governor] should more particularly pursue that part of your Instructions by which you are directed to support those who by patents under the Great Seal derive from it their title to the exercise of their employments and to the rewards which H.M. appointment, or the rules and customs established in that respect, have annexed to those employments." The Governor was ordered to discountenance and discourage any attempts by vote of Assembly or otherwise to support any receivers of public money in their refusal to account to the King by his proper Patent Officer, the Auditor. He was not to pass any money bills in which there was a clause permitting the receivers to avoid so accounting, and he was to assist by all legal means the Auditor's Deputy in receiving the recompense due to the Auditor for auditing the said accounts. (652).
Governor Burnet replied to this letter in November to say that the principal complaint relating to Mr. Walpole's office of Auditor General had been redressed nearly two years before, for since that time the whole current revenue had been accounted for yearly, and all the arrears since 1715, to his Deputy who had received the 5 per cent. for it (782). Though he had difficulty in collecting his dues, Horatio Walpole thus got them in the end and clearly he held an extremely lucrative sinecure. His own service was being performed as Ambassador in Paris, but he did nothing as Auditor, save to draw his fees.
The newly elected members of the Assembly were the chief opponents of the Auditor's claim and his rights had become a popular topic, so that the Governor himself incurred great displeasure by insisting on them (782).
Encroachments on the Prerogative. The Board of Trade and their legal adviser had to be continually on the watch to guard against encroachments upon the Prerogative of the Crown in the Acts passed by the Colonial legislatures, and they took much the same form in different colonies and usually related to the power of taxation. A typical case occurred in Barbados. An Act had been passed for laying an imposition or duty on wines and liquors imported into that island, in which the Commissioners found that methods of collection were prescribed that were distinctly derogatory to the Royal Prerogative. According to the Governor's instructions, all taxes or impositions whatsoever laid upon the subjects were to be given by way of grant to the King, his heirs and successors, for the uses set forth in the Act, but in this Act there was no mention whatsoever made of the Crown, nor was there a grant of anything to the King. Instead, it was enacted that after the publication, the duties raised should be paid to a Treasurer appointed by the Act. In consequence it was provided that the bonds given for the payment of the duty were to be taken, not in his Majesty's name, but in that of the Treasurer, who was empowered to issue his warrant against such persons as did not comply with the condition of their bonds. This power was by the Act so absolutely vested in him that, in case of misuse, the party aggrieved could have no relief by application to any of the King's Courts of Justice in the island. Beyond this, the Treasurer and Comptroller were further empowered to issue warrants, not to the proper officer, the Marshal, but to any two constables, so that the ordinary course of the law was overridden. Those suspected of infringement were to be obliged to answer upon oath any questions put to them, and their ships were to be liable to forfeiture even for the smallest offence and without the consent or privity of the master or owner. Thus the Treasurer appointed by the Act was to replace the proper Customs officers indicated by the Acts of Trade and Navigation, and so the prerogatives of the Crown were infringed and the subjects oppressed (49). The Board therefore recommended that the measure should be disallowed, but in the end the King did not think fit to repeal the Act (334) and left the Governor to deal with it in another way.
Duties on European goods. Various of the Colonial legislatures, and notably that of New York (143) had passed Acts laying duties on European goods as the Barbados Act did, and it was decided that a General Instruction should be sent to all Governors in the Plantations not to give their assent to any such Act. This was done (200) and Governor Worsley on the receipt of the Instruction (399) sent a copy of it to the Assembly in order to secure the passing of a bill repealing the obnoxious clauses. The members could not persist in their desire to raise duties on European goods in the face of such an explicit prohibition. They gave way, as they had done on the infringements of the Prerogative, which had already been remedied in an Excise Act drawn up in a less objectionable form (382, p. 236).
The longstanding disputes between the Councils and the Assemblies in the various Colonies as to their respective rights in regard to money bills appear frequently among the papers. In Massachusetts, for example, the Governor and Council having paid some of the just debts contracted in the service of the Province in the recess of the General Assembly, the House of Representatives at their next meeting voted those payments to be grievances. When the House would not agree with the Council to give a sufficient supply for the Treasury to carry on the Indian war, the Council asked for a conference, but the House refused, alledging that it was not agreeable to their privileges, contrary to the known usage of the General Assembly and manifestly tending to destroy all good correspondence between the Council and the House of Representatives. Thus the session ended with less than 6l. in the hands of the Treasurer to carry on the Colony's business, while the House ordered their Articles of Grievances to be forthwith printed for circulation among their constituents.
Disputes on Money Bills. Massachusetts. There was in the opinion of the Governor a determined intention to over-ride and ignore the Council, for, for many years, the Representatives had industriously. avoided all conference with the Council in matters of weight; whereby the rank and file of the country members were prevented from seeing public business set in a true light and were at the mercy of the misrepresentations of the leading men in the House of Representatives. The old tenacious oligarchy was, in fact, determined to lose no opportunity of maintaining its influence and to make use of the constitutional doctrine set up by the English House of Commons, whenever they found it convenient to their purpose. (77, p. 51).
South Carolina. A similar dispute arose in South Carolina. An Address was sent by the Council of that Colony to the Duke of Newcastle protesting against the encroachment of the Lower House of Assembly upon their privileges in regard to money bills. By the Governor's Instructions the Council was invested with the power of framing, altering and amending money bills, and by the constant practice of the Province had made use of it. But now by a formal vote of the House of Representatives it was declared that the members of the Council had no power to make any alterations in a Tax Bill. The Colony was in such a difficult financial position that the Council had to give their assent to an Act laying taxes, because if they had taken the only alternative open to them in the face of the Assembly's resolution, to reject the bill outright, it would have thrown the Government into confusion, and they were unwilling to take the responsibility (813 i.)
Nevis. In the small colony of Nevis another point was raised in connection with a similar question of principle. Governor Hart forwarded to the Board of Trade Addresses from the Council and Assembly relating to the dispute between them. The Council had denied a Conference with the Assembly upon a tax bill, upon which the House adjourned themselves from day to day without taking any notice of the President and Council (260). They claimed that "it is the undoubted right of the Commons to raise money, and that all subsidy bills should have their rise there." (260, xi). The Council, on the other hand, claimed the right to be consulted when a tax was raised, before a bill was presented by the Assembly (260, xii). The Governor concluded that the Council were not in right in preparing levy bills by joint Committee with the Assembly, and their refusing of a Conference was a dangerous step. The Assembly's adjourning themselves and meeting again was an invasion of the Crown's Prerogative, and he therefore decided to dissolve the Assembly. (260, xiii).
The matter may at first sight seem of minor importance when it concerned so small a colony, but it illustrates the way in which such constitutional questions arose both in small colonies and large, and it indicates that the progress of constitutional conventions may be studied comparatively in many directions with profit. Points that must have been in the minds of the disputants in the larger legislatures but do not appear, may be brought out elsewhere, for constitutional theories were the same throughout all those parts of the Empire that had representative institutions.
Lack of knowledge of the Laws in force. The colonists were always ready to enter into constitutional disputes with their Governors whenever their pockets were touched or their traditional rights, as they thought, infringed. But their knowledge of the state of the law was by no means explicit, as the Commissioners for Trade and Plantations wrote to the Lord President of the Council in May 1724. "We find [the Colony of Bermuda] was very little informed what Acts of their Assemblies were in force, till we sent them a collection of their Laws lately revised and printed by our direction, and that they have long been governed by laws which had been repealed many years by the Crown. This inconvenience is common to the other Colonies, and arises from the neglect of their Agents, who seldom give themselves the trouble of taking out any Order in Council, either for the repeal or confirmation of Acts wherein private persons are not concerned." They asked therefore that all Orders-in-Council for the confirmation or repeal of Acts of Assembly in any of the Colonies in America might be sent to the Board for transmission to the Colonies concerned. (183).
Method of dealing with 1 Colonial Acts. In a little later letter to the Duke of Newcastle, in reply to his request that there might be no delay at the Board in dealing with Colonial Acts, (230), the Commissioners gave an interesting account of the way in which they dealt with such matters. "We generally divide the Laws of the Plantations into three different classes, that is to say, such as for the service of the Colonies or the security of private property demand an immediate confirmation; such as in their own nature are so pernicious as to demand an immediate repeal; and lastly, such of whose effect being doubtful, we think it necessary to let them lie as probational, till we shall have been fully informed what effect they may have in their execution. As to all Acts of the two first kinds, we never fail to represent upon them without loss of time to H.M.; but as to those of the third class, we generally lay our opinions concerning them in a great number at once before H.M. occasionally, as the respective affairs of the different Colonies fall under our consideration. But as to the Laws of the Plantations in general, we take leave to observe . . . [that] the fewer Acts there are confirmed, the greater will be the dependence of the Colonies upon the Crown." (231).
The Governor's Jurisdiction. Two interesting cases concerning the limits of a Governor's jurisdiction arose during the period and afforded vexed questions to be solved by the Law Officers of the Crown. The St. Christopher galley when putting out from Barbados failed to fly the tarpaulin as a flag which indicated that she had had proper clearance. She was fired upon by the 'matross' of James Fort, but failed to heave to, and a second shot was fired which struck her when she was about two miles off shore, and slew her mate. The Governor was called upon to have the matross indicted for manslaughter, but he doubted what Court could take cognizance of it; the person that was killed by a gun shot from the shore was upon the high sea two miles out, where in the view of the Governor and his Attorney-General his jurisdiction did not extend (478). The case was referred to the Attorney and Solicitor-General for their opinion, and they replied that the matross could not be tried for the death of the mate in any Court of Common Law, but ought to be tried in the Court of Admiralty in Barbados, or by special Commission under the Statute 11 & 12 Wm, III, the most known and usual method of proceeding in cases of felonies done upon the sea in those parts. (577).
The Board of Trade sent on this opinion to Governor Worsley (593), but the Duke of Newcastle was apparently not satisfied and referred the case to Sir Henry Penrice, Judge of the Admiralty. He reported that in his opinion though the mate of the St. Christopher galley was two miles off shore when he was killed, the matross who fired the fatal shot was not upon the High Seas. The firing was done upon the land, so that the Governor's jurisdiction did extend to the case, and he might proceed to enquire into the case in the same manner as in a case of the like nature upon the land. (598 i).
Statute of 33 Henry VIII, c.25. The other case arose in the Leeward Islands and brought up a question which was of great importance on the coast of West Africa a century later. One William White, living in one of the Virgin Islands which had very few inhabitants, shot a man whom he feared was about to rob him. The Deputy Governor of the island arrested White, but there were no Courts of Justice erected there, and he could not be legally tried. White petitioned that be might be brought to St. Christopher for trial. Governor Hart consulted the Solicitor-General of the Leeward Islands, who gave the opinion that, as the fact was committed out of the body of the county of St. Christopher's, White could only be tried under the Statute of 33 Henry VIII. (fn. n8) Both the Solicitor and the Attorney-General of the Leeward Islands, had some scruples whether that statute was not confined to the realm of England, notwithstanding the word "Dominion" mentioned in the said statute. No man had ever been tried in the Leeward Islands upon the statute, but it would have extended there, if it had not been enacted before the settlement of the islands. The case was a new one, and the Governor therefore desired that it should be submitted to the Law Officers in England. (692).
Francis Fane, Legal Adviser to the Commissioners for Trade and Plantations, gave the opinion that the Statute of 33 Henry VIII remained in force and applied to the case, but the examination appointed could only be by the Privy Council, and commission for trial issued only by the Chancell