America and West Indies: June 1728, 1-5

Pages 107-113

Calendar of State Papers Colonial, America and West Indies: Volume 36, 1728-1729. Originally published by His Majesty's Stationery Office, London, 1937.

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June 1728, 1-5

[June 2.] 229. Copy of undertaking by M. Subercase, "Governor of L'Accadie of Cape Breton Island and land adjacent from the Cape Roziers of the Great River St. Lawrence as far as the East part of Kennebeck River," to procure passports for Major Richard Mullins and Charles Brown to proceed to England etc. Port Royal. 23rd Oct. n.s. 1710. Endorsed, Recd. 2nd, Read 6th June, 1728. ¾ p. [C.O. 217, 5. ff. 76, 77v.]
June 3. 230. Mr. Attorney and Mr. Solicitor General to the Council of Trade and Plantations. Report upon H.M. Instruction to Governors relating to the 5th and 6th Articles of the Treaty of Peace and Neutrality (v. 16th May). Continue:—We conceive that it was the intent of those articles to give power to the King of Great Britain and the most Christian King reciprocally to seize and confiscate the ships and cargoes belonging to the subjects of each other, which should carry on a trade contrary to the said Articles; and consequently that ships belonging to the subjects of France with their ladings, that shall be found trading in any of the British Plantations in breach of those Articles, will be liable to be seized and condemned, in some of H.M. Courts within such Plantations for that cause; and that on the other hand ships and their cargoes belonging to British subjects who shall be found trading in any of the French Plantations in breach of the said Articles, will in like manner be subject to seizure and confiscation within such French Planta- tion. But we apprehend that it was not the intent of this Treaty to provide that either of the contracting powers should seize and confiscate the ships or goods of their own subjects for contra- vening the said Articles; and if such intention had appeared, we are humbly of opinion that it could not have had it's effect with respect to H.M. subjects, unless the said Articles had been confirmed either by Act of Parliament of Great Britain, or by Acts of Assembly within the respective Plantations. As to the abovementioned Instruction there appears to us nothing illegal in the terms of it; But considering the distinction, arising upon the said two Articles of the Treaty, which we have already stated, we submit it to your Lordships' consideration whether it may not be expressed more explicitly and particularly in order to prevent mistakes in carrying the same into execution in the severall cases that may happen. Signed, P. Yorke, C. Talbot. Endorsed, Recd. 3rd, Read 4th June, 1728. 5? pp. Enclosed,
230. i. Extract of 5th and 6th Articles of the Treaty of Peace and Neutrality, 1686. 3? pp. [C.O. 323, 8. Nos. 91, 91. i.]
June 3. 231. Mr. Fane to the Council of Trade and Plantations. In reply to 10th May, gives opinion, with reasons, that Mr. Worsley's Government was not determined by the demise of his late Majesty and his present Commission is a renewal of it and a continuation of the same office and profits etc. Signed, Fran. Fane. Endorsed, Recd. 3rd, Read 4th June, 1728. 6½ pp. [C.O. 28, 19. ff. 180—1831v.]
June 4. 232. Same to Same. Has no objection to the Acts of St. Kitts for regulating Vestries etc. and ascertaining the number of Assemblymen etc. (v. Dec. 26). Signed, Fran. Fane. Endorsed, Recd. 7th June, 1728, Read 28th March, 1729. 1 p. [C.O. 152, 17. ff. 27, 28v.]
June 4. 233. Mr. Partridge to Mr. Popple. Understanding there is like to be made some application at the ensuing Congress at Soisons for obtaining satisfaction from Spain for the ships taken by the Spaniards etc., I do therefore send thee herewith an accot. of a ship belonging to Rhd. Island taken about 4 yrs since from Capt. Wanton whose attourney I am. We endeavoured to get satisfaction from the Court of Spain as will appear by enclosed papers etc., but we never could recover anything at all etc.: so now I desire thou wouldst please to let this ship and cargo amo. to upwards of £1800 sterl. to be incerted among such accots. as are to be transmitted to the Congress. I am, Thy Friend, Signed, Richd. Partridge. Endorsed, Recd., Read 6th June, 1728. 1 p. Enclosed,
233. i. Petition of Wm. Wanton jr. to the King. Commander of the Wanton, describes capture of his ship in her voyage from Jamaica to Rhode Island, when attempting to water at Chincherna Island, near Cape Catoch, April, 1724, after being driven off her course by a storm, and not knowing where they were. Petitioner had not had any manner of commerce with the Spaniards or any others from the shore, nor when taken had they any goods on board of Spanish growth or product or any counterband goods whatsoever. The Spaniards carried them into the Bay of Honduras and seized all their papers, to prevent a true state of the case being laid before H.M. Then they proceeded to treat the ship's company very barbarously and inhumanly perticularly in hanging up some of your petitioner's sailors by the neck to make them confess where they were bound etc. Petitioner and some of his company were carried to Campeachy and there put into prison with very little cloaths etc. Six others, who were sick, were inhumanly forced out of the ship into a boat. Petitioner after having layn in prison till the latter end of June was carried to Vera Cruz and put into prison there in a place that was almost knee-deep with water and was there three days without any subsistance from the Spaniards, and afterwards was removed to a castle from whence he was released through the intercession of Capt. Wm. Clealand of the Royal Prince and the English Factory there etc. Prays for redress on account of himself and Col. Wm. Wanton of Rhode Island, sole owners of the Wanton.
233. ii. Estimate of value of Wanton and cargo as above. 1 p.
233. iii. Duke of Newcastle to Mr. Stanhope. Jan. 14, 1724/25.Transmits Wm. Wanton's petition (No. 1) and concludes: H.M. directs your Excellency to represent to the Court of Spain the particular hardship of this case, and endeavour to obtain a full and speedy satis- faction for the loss the owners have sustained. Signed, Holles Newcastle. Copy. 2 pp.
233. iv.–vi. Depositions of Wm. Wanton jr. (2), and Caleb Godfrey relating to foregoing. Signed, Wm. Wanton, jr., Caleb Godfrey. 1¾ pp., 3 pp. [C.O. 388, 27, Nos. 29, 29 i—vi.]
June 4.
234. Mr. Popple to Mr. Scrope. Encloses following as desired. It will be for H.M. service, that the Surveyor General be dispatched as soon as possible, that the settlement of Nova Scotia may be no longer delay'd etc. (v. Cal. Treasury Papers, 1728, p. 516). Annexed,
234. i. Draught of H.M. Instructions to David Dunbar, Surveyor General of H.M. Woods on the Continent of America. Whereas we are sensible of the great advant- age that would accrue to our Kingdoms, were our Royal Navy and the shipping of Great Britain con- stantly supply'd with Naval Stores of all kinds from Our Plantations in America, We have thought fit to appoint you to be Surveyor of Our Woods on that Continent; You are therefore with all convenient speed to repair to America, and to signify and exhibit to the several Governors of Our Plantations there, Our Commission etc. as also such parts of Our Instruc- tions in that behalf, as may be requisite from time to time. And whereas we are inform'd that the Province of Nova Scotia abounds with timber of all kinds fit for the service of Our Royal Navy; And whereas Our Governor of that Province is forbid to grant any lands there to any person whatsoever until there shall be set apart a sufficient quantity of land bearing timber as a nursery of trees for the use of Our Royal Navy, you are therefore in the first place to proceed to that Province, and in those parts where you shall find it most for Our service, to take a survey of Our woods, and to mark out certain tracts of land most proper to be reserv'd for the service of Our Royal Navy; always observing that they lye as contiguous as may be to the sea coast or navigable rivers, not amounting to less than 200,000 acres in the whole, in which lands no persons whatsoever are to cut trees of any dimensions, under pain of Our highest displeasure, and of the utmost penalties the laws can inflict for such offence etc. You are to make application to the Governors (of the Provinces concerned) that the Acts for the preservation of white avd other pine trees, and for giving further encouragement to the importation of Naval Stores be publish'd in their respective Governments, and you are to take especial care, that the said Acts or such parts of them as are in force be duly observ'd, particularly you are to mark all such trees fit for the use of Our Royal Navy (not being the property of any private person) and to restrain as much as possible the liberty taken, of cutting down trees fit for Our service, accord- ing to the directions of the said Acts. And whereas a doubt has arisen upon the words of the latter Act, whether trees of 24 in. diameter at 12 in. from the ground, growing within any township or the boundaries thereof, be restricted to H.M., or whether the people there have not a power to cut them for their own private use, altho' by the Charter granted to the Colony of the Massachusets Bay, such trees are reserv'd to the Crown; you are to understand that nothing contain'd in that Act can be construed to take away the right reserv'd to the Crown by the said Charter, as to trees of 24 inches diameter at 12 inches from the ground, whether the same are growing within or out of any township; The intention of the Act being to make a larger provision for preservation of white pine trees than was done by the Charter, by prohibiting under penalties, the cutting down such trees growing without the limits described in the Act without H.M. licence, notwithstanding they might be the property of private persons, and of dimensions different from those describ'd in the Charter; you are therefore not to suffer any such trees to be cut altho' they do grow within the bounds of any township, without your licence for that purpose; and if you discover any offending therein, you shall prosecute them according to law. And whereas We are desirous that these Our Dominions be furnish'd with pitch, tar, hemp and other Naval Stores from Our Plantations rather than from foreign parts; you are, upon your arrival in America, to use your best skill and care in instructing the inhabitants of Our Colonies in the right and proper method of producing, making and fabricating of tar and pitch, and to direct them as well in the choice of tree, as land proper for the producing these commod- ities, as likewise for producing hemp, and such other Naval Stores as are imported from the East Countries, and other foreign parts. You are to endeavour by your advice and instructions to correct any errors the inhabitants may run into, in the manufacturing the said commodities. You are to advise the inhabitants that they take care that all such pitch and tar as shall be shipp'd from thence, be good and merchant- able, free from dirt and dross; and that the respect- ive makers of those commodities do put their names and place where such commodities were made, upon each cask in which the said pitch and tar shall be put. You are to make application to Our Governors in those parts, that they endeavour to get such Acts pass'd in their respective Governments, as may be proper for encouraging the said undertaking, and for preventing abuses that may be committed therein. You are to keep a particular account of all your proceedings here- in, and what progress you make from time to time, as also what particular obstructions you shall meet with, if any, and give an account thereof to Us, by one of Our principal Secretaries of State, and to Our Commissrs. for Trade and Plantations, as also to Our Governors of the respective Plantations where you shall be, together with your opinion what further orders or instructions may be requisite for ye perfecting this so necessary and advantagious undertaking. [C.O. 324, 11. pp. 103—111.]
June 5.
235. Mr. Popple to Mr. Fane. Encloses for his opinion in point of law Act of Antigua, 1728, for encreasing the salary of the present Agent, and for appointing how long he shall continue in his Office. [C.O. 153; 14. p. 403.]
June 5. 236. Mr. Fane to the Council of Trade and Plantations. Report upon Act of New York for preventing prosecutions by informations. The Act recites that many of H.M. subjects have been lately prosecuted in the counties and Supreame Court upon information filed against them by the Attorney Generall and his Deputies, tho' the matters charged against them have been generaly trivial and inconsiderable, therefore it is enacted that all informations filed by H.M. Attorney Generall now depending shall be quashed etc. and all such process and proceedings are to cease after the publication of this Act etc. And it is enacted that thereafter no person shall be troubled in his liberty or estate by the King's Attorney General upon pre- tence of any misdemeanour committed otherwise then by presentment of a Grand Jury or by information by an order from the Governor signed in Councill etc., and the party so presented shall be brought to trial the second Court after such information filed or be discharged the Court without paying of any fees etc., etc. It is further enacted that if the Attorney Generall shall prosecute any person contrary to the true intent and meaning of this Act etc. he shall forfeit £100 currant money etc. I think this Act a very violent and extraordinary attaque upon the prerogative of the Crown, for the right the Attorney Generall has to file informations is delegated to him from the King and has been ever thought a most essential and necessary power with regard to the security of the publick tranquility, as well as for the service and protection of H.M. revenue, and I apprehend the destroying that power thus, will be attended by very ill consequences; for if no delinquent is to be prosecuted without going through so solemn an enquiry whether it be expedient or not, I believe it will be an encouragement to wicked men to perpetrate the worst of villanies in hopes by justice being delayed which it must necessarily be in this form of proceeding they may escape that punishment they justly deserve, and which in policy ought to be as speedy as possible etc. Calls attention to the quashing of all prosecutions now depending, which must be attended with many inconveniencies. Continues: The imposing a fine upon the Attorney General if he does not pursue the directions of this Act is an unprecedented step and a high reflection upon the honour of the Crown; for can it be supposed H.M. will appoint an Attorney Generall who is so unwilling to do his duty that he must by the fear and dread of punishment be forced to put the law in execution etc. Signed, Fran. Fane. Endorsed, Recd. 7th, Read 27th June, 1728. 5½ pp. [C.O. 5, 1054. ff. 279—2811v., 282v.]
June 5. 237. Same to Same. Has no objection to 8 Acts of New York referred to him 1st May etc. Signed, Fran. Fane. Endorsed, Recd. 7th June, 1728, Read 18th Nov., 1729. 1½ pp. [C.O. 5, 1055. ff. 42, 42v., 43v.]