America and West Indies: November 1730, 1-10

Pages 331-340

Calendar of State Papers Colonial, America and West Indies: Volume 37, 1730. Originally published by His Majesty's Stationery Office, London, 1937.

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November 1730, 1-10

Nov. 3. 508. Mr. Fane to the Council of Trade and Plantations. In reply to 28th Oct., is of opinion that such fines are understood to be levied in sterling money, or the value thereof. Signed, Fran. Fane. Endorsed, Recd., Read 3rd Nov., 1730. ¾ p. [C.O. 323, 9. ff. 51, 54v.]
Nov. 3. 509. Same to Same. Has no objection, in point of law, to 24 acts of Virginia, 1730, submitted to him, including the act for amending the staple of tobacco. Signed, Fran. Fane. Endorsed, Recd. 3rd Nov., 1730, Read 12th May, 1731. 3¾ pp. [C.O. 5, 1322. ff. 120–121v., 128v.]
Nov. 3. 510. Same to Same. Report upon Act of Pennsylvania for establishing Courts of Justice etc. referred to him 15th April. Has been attended by Mr. Sharpe on the behalf of Mr. Moore, Collector of the Customs in Pennsylvania in opposition to this act, and by Mr. Paris in support of it. Continues:—I apprehend there is no material difference between this act and an act passed in the 8th of the late King, but in relation to the jurisdiction of the Supream Court of this province as to its power of issueing originall process and hearing causes in that Court, for in all other respects this last act only re-enacts the former etc. By this last act the originall jurisdiction of the Supream Court is in all cases except in indictments taken away, the sole motive of which Mr. Sharpe alleadges was to defeat Mr. Moore the Collector of the Customs of the benefit of a very valuable seizure he had made at Philadelphia of the ship Fame laden with East India and contraband goods to the value of 20,000l. which he was then sueing for by original process in the said Supream Court etc. It does not very plainly appear to me that this was the sole motive etc. but one circumstance induces me to think that the Legislature had prosecutions of this kind in view when this matter was under consideration by rejecting what I apprehend to have been a reasonable and proper clause offered, which was to retain an original jurisdiction in the Supream Court in all actions qui tarn informations etc. wherein the Crown was interested. This I think would have been a proper reservation as it was not to be presumed that His Majesty's causes would ever be carried on with vexation or oppression in order that they might receive the most solemn and impartiall determination, the Supream Court being filled with persons bred to the profession of the law, whereas in the Inferior Courts the persons presiding are generally bred in the mercantile way and who may reasonably be supposed in cases of seizure to be under at least the temptation of being partial in favour of the claimant. Another objection offered is that a general original jurisdiction being unquestionably vested in the Supream Court by the 8th of the late King the Assembly had no power to take it away for by the Pensylvania Charter, if the acts passed there, were not repealed by the Crown in five years, they were from thenceforth to remain in full force and the act of the 8th of the late King not having been repealed in five years it must now be considered as having the Royal sanction of the Crown and cannot be repealed varied or altered by any future act without the express leave of the Crown. This fact of the Charter I agree to be true but the question is whether an original jurisdiction was vested in the Supream Court by the 8th of the late King and I take it that there are not words sufficient in that act to give the Supream Court an unquestionable jurisdiction. There are some words that point that way but none so expressive in my opinion as to bring this case within the reason of the beforementioned restriction. It is true the Judges of the Supream Court in the case of Mr. Moore have thought fit to exercise a jurisdiction but I see no great conclusion from thence because Courts of Law are ever willing upon the slightest pretence to extend their jurisdiction. Another objection to this law is that though this province is expressly required by their charter to pass no laws but what are agreeable to the laws of England yet that the restriction in that act with regard to the Superior Court is directly repugnant to them, for as this Supream Court is a Court of Record it is expressly enacted by several acts passed here which extend to the Plantations, that the Custom House Officers may prosecute their seizures in any Court of Record. I must agree that it has always been thought fit for the service of the Crown that informations of seizure should be tryed in the most superior Court of Record but I can't apprehend that this act in this particular instance is repugnant to our laws because it is passed upon a supposition that this Supream Court was meerly a Court of Error which though in strictness is a Court of Record yet I apprehend it does not come within the reason of our laws. Another objection offered is that the Inferior or County Courts are not of sufficient dignity to hear and determine causes of that value which Plantation seizures generally are and that their jurisdiction being limitted to the bounds of their respective counties, the Officer is obliged to lay his action where the seizure was made and has not the liberty as in England of laying his action in Middlesex though the seizure was made in any other county. The laying of informations upon seizures in Middlesex, I must observe, has certainly been found of very great benefit to the Revenue here because of the partiality too frequently shewn to offenders of this kind in their own country. The same inconvenience it is possible may arise in this Collony and therefore it would have been prudent in the Legislature to have pursued a method so much approved of here and by experience found to be so greatly beneficial to the Revenue. As to the first part of this objection that the Inferior or County Courts are not of sufficient dignity etc. I can only observe as above that H.M. causes ought to have the most solemn and impartial determination, which they are more likely to meet with in the administration of persons skilled in the profession of the law than in the hands of merchants. There were some other reasons offered by Mr. Sharpe on the part of Mr. Moore against this law but as I did not think them very material I shall not trouble your Lordships with them. There were many reasons offered by Mr. Paris in support of this law the most material etc. were (1) The chief reason for taking away this original jurisdiction from the Supream Court is the much greater expence suitors would be put to in prosecuting actions in this Court than in the Inferior Courts from the very great delay that must necessarily happen in legal proceedings from the seldom holding of this Supream Court, which I think, is to be held but thrice a year, and then at Philadelphia, and the expence and trouble which will necessarily follow by the claimants being obliged to bring their witnesses perhaps from the remotest parts of the Kingdom. I am sure I should be very far from objecting to anything which would make the coming at Justice more easy in point of expence or more expeditious in it's effect. And I think in civil causes, supposing this method is less expensive that the regulation is perfectly right, but I can't agree that this restriction is at all proper in H.M. causes for the reasons I have already mentioned with regard to the dignity of the Courts. Besides, the delay of Justice is an objection in the power of the Legislature very easily to remove by appointing the Superior Court to meet oftner if the necessity of the business should require it. Another reason offered in support of this law is, that it is inconsistant the same Court should have an original jurisdiction and sit likewise as a Court of Error. If there was any weight in this argument, this law is now lyable to that objection because there is actually an original power continued by this act in this Supream Court in all indictments. For my part I cannot see any inconsistency in it; nor is it unusuall, for the Court of King's Bench whose constitution I never yet heard arraigned, has both these jurisdictions. Another objection offered to the original jurisdiction of this Supream Court is that by bringing an action originally in this Court, no writ of error can be brought to correct any error in their judgement but by appeal Home. It may I agree put the partys to some extraordinary expence if they should not submit to the determination of this Supream Court. But could they have been in a better condition supposing the process had begun in the Inferior Courts and not an acquiescence in the Superior Court's determination upon the errors. Besides the Legislature of Great Britain have vested a jurisdiction in the Admiralty Courts in the Plantations in all causes of seizure and have not thought proper to leave the judgements of that Court to be reviewed in any manner but by appeal home. Another reason offered in support of this act is that supposing an original jurisdiction was vested in this Supream Court in causes wherein the Crown was interested, Mr. Moore out of spleen and resentment would make use of it to harrass and distress the people. What the conduct of Mr. Moore has been I can't pretend to say. But sure I am that his Majesty who has so perfect a regard for Justice and so tender a concern for the welfare and happiness of his subjects in every part of his Dominions would never suffer any officer using his authority to oppress his people. If there should be any just grounds for such a complaint against Mr. Moore, it would be more for the honour of the people of this Colony to make a complaint of his behaviour in a proper place and where they would certainly find redress than to distress his Majesty's affairs in the judicial proceedings of this province. Another objection is that to repeal this act of 1727 would overturn and unhinge all the Courts of Judicature in this province. This fact I begg leave to observe to your Lordships is not true, for I don't find that the act of the 8th of the late King is repealed by this law. But if it was by H.M. repealing this act which is now under consideration, that law would revive again and the Judicature of this province would then stand upon the very same foot it does now except only as to the point of jurisdiction upon which the objections to this act have arisen, etc. I begg leave upon the whole to say that if the Legislature had accepted the clause that was offered upon passing this act to retain a jurisdiction in this Supream Court in all causes wherein H.M. was interested I should have had no objection to this act. But as they have not, I apprehend it will be of very great prejudice to the Revenue, unless your Lordships are pleased to advise H.M. to repeal it etc. Signed, Fran. Fane. Endorsed, Recd. 3rd Nov., 1730, Read 22nd June, 1731. 6¾ pp. [C.O. 5, 1268. ff. 8–11v.]
Nov. 3. 511– Mr. Fitzwilliam to the Council of Trade and Plantations. Requests copy of Journal of Assembly and the Governor's letter relating to the reasons offered by him in Council (v. July 23rd), "I doubt not, but to make appear, that I have recd, very severe treatment, and that my conduct has been such, as will deserve your Lordsps' approbation" etc. Signed, Rd. Fitzwilliam. Endorsed, Recd., Read 3rd Nov., 1730. 1 p. [C.O. 5, 1322. ff. 85, 86v.]
Nov. 4. 512. Memorial of loss and damage (998l. sterl.) sustained by Christopher Banker and Company of New York mariners, owners of the Jolly sloop, and by Stephen Delaney of New York, owner of the cargo (rum) taken 13th Nov. by a Spanish privateer, in her voyage from Barbados to New York. Deposition, signed, Samuel Baker. Endorsed, Recd, (from John Newman, jr.) 19th Nov., 1730. 4 pp. Enclosed,
512. i. Papers relating to foregoing. English and Spanish. 24 pp. [C.O. 388, 92. Nos. 8, 8 i.]
Nov. 4. 513. Memorial of loss and damage (1200l. sterl.) sustained by Stephen De Lancy, Henry Lane, Peter Barberie and John Moor of New York, owners of the Elizabeth and her cargo (chiefly flour and other provisions), taken by a Spanish sloop off Hispaniola in Aug., 1716. Depositions, signed, Samuel Baker of Green Lettice Lane in Cannon Street, London, merchant, and William Murphy, mariner, of New York. With Spanish translation of latter. Endorsed, Recd. 19th Nov., 1730. 11 pp. [C.O. 388, 92. Nos. 6, 6 i.]
Nov. 4. 514. Memorial of loss and damage (484l 19s. 6d.) sustained by Samuel Smith of Norfolk, Va., merchant, owner of the sloop Catherine of Virginia and cargo taken on 4th Feb., 1729, by a Spanish privateer off Hispaniola. Deposition, signed, Robert Cary, of London, merchant. Copy. 1¾ pp. Enclosed,
514. i.–v. Letter and deposition of Samuel Smith and invoice and bill of lading relating to foregoing. Copies. 8 pp. [C.O. 388, 92. Nos. 17, 17 i–v.]
Nov. 4.
515. Mr. Popple to Mr. Burchet. Encloses extract from Col. Dunbar's letter with copy of proceedings on prosecution of Jeremiah Foolsom. Continues:—My Lords request that the Lds. Comrs. of the Admiralty would give directions for prosecuting the appeal from the decree of the Vice Admiralty Court etc., it being very much for H.M. service that the people of N. England should find, that justice may be obtain'd here, how partial soever they may be in their proceedings in that country. [C.O. 5, 916. p. 393A].
Nov. 5.
516. Lt. Governor Calvert to Mr. Popple. Yours, dated 9th of December last, came to my hands late in the spring; the Queries therein inclosed etc. are of such a nature and extent, as must require time and caution in answering of them, inasmuch as I would desire to give their Lordships the most exact satisfaction therein; I have already given orders for a general list of whites and blacks, throughout this Province. I have given it in charge to the Naval Officers and Collectors to inform me etc. as to the trade to and from this Province etc. Signed, Benet. Leond. Calvert. Endorsed, Recd. 25th Jan., 1730/1, Read 4th Oct., 1732. Holograph. Addressed. 2 pp. [C.O. 5, 1268. ff. 119, 119v., 123v.]
Nov. 6. 517. Memorial of loss sustained by Sir Thomas Bury and Company, owners of the Loyalty, seized by the Spaniards upon the coast of Asturia. Said ship was bound from Exeter with cargo for New England, there to relade with fish for Bilboa, and thence with a cargo of iron etc. to Exeter. Signed and sworn by, William Bury. Endorsed, Read 23rd Nov., 1730. 3 pp. Enclosed,
517. i. Deposition of Thomas Powell, master of the Loyalty, and others. 3rd June, 1730. Copy. 3 pp. [C.O. 388, 92. Nos. 5.5 i.]
Nov. 6.
Hay Market.
518. William Adair to Mr. Popple. As agent for Governor Philipps asks that the Treasury may be moved to reimburse him 250l. advanced by him to purchase a vessel for the Government etc. Signed, Wm. Adair. Endorsed, Recd. 8th Nov., Read 11th Dec., 1730. 1 p. [C.O. 217, 5. ff. 211, 212v.]
Nov. 7.
519. Governor Hunter to the Council of Trade and Plantations. Acknowledges receipt of Instruction relating to the whale-fishery etc. Continues: I am very much concerned to informe your Lordships, that notwithstanding all the care and pains that was taken in fitting and sending out our Grand Party mentioned in my last, to dislodge or destroy the slaves in rebellion, they have returned without any manner of success, haveing lost themselves in the woods, supposed to be by the mismanagement of some of their officers or guides, by which some of them have been famished, others drowned in crossing the rivers and many thro' sickness have dyed, So that 'tis computed one fourth part of them are destroyed. The Assembly is now sitting, and have this affair under their examination and are thinking of what further measures may be proper to be taken to remedy this misfortune, and to protect themselves from the insults of those slaves, who begin to grow both numerous and powerfull etc. The Captain of the Genoese wrecked on Pedro Shoals sailed in H.M. sloop Tryall to endeavour to recover the remainder of the treasure etc., but was forced into one of the leeward ports of this Island by stress of weather, but the vessel recieving no damage they sailed again for the wreck in a short time afterwards, since which I have had no further account of him; I shall continue to do everything in my power to prevent embezlements that strict justice may be done to His Catholick Majesty and those interested in the said ship, Admiral Stuart haveing what treasure hath hitherto come to our knowledge etc. Signed, Ro. Hunter. Endorsed, Recd. 5th Feb., Read 13th July. 1731. 2pp. [C.O. 137, 19. ff. 51, 51v., 54v.]
Nov. 9.
520. Duke of Newcastle to Governor Hunter. Sir, I write this, in the utmost secrecy, to acquaint you that H.M. has received advice, that a Spanish Officer was come to Mr. Prater, the South Sea Company's Agent at Jamaica, to let him know, that a Spanish ship of war of 50 guns and 300 men, to which he belonged, was run on shore upon Pedro shoals, ten or twelve leagues from Jamaica, and to desire assistance to save what was on board, being, as the said Officer reported, about 850,000 pieces of 8/8; 250,000 whereof was a present from the Government of Peru to the Queen of Spain; That there were fourteen State prisoners on board, one of which was the late President at Panama: That Mr. Prater had ordered some sloops to their assistance, and had sent to R. Admiral Stewart at Port Antonio to desire him to send a man of war to prevent plundering, as you will see more particularly by the inclosed account. H.M. is pleased to direct, that you should collect and take into your own custody all the effects that were on board the said Spanish ship, which have been saved, in whomsoever's hands they may happen to be, and make exact inventories of them in the presence of some of the Spanish Officers, and detain them, and keep them safe without any embezzlement, till further signification of H.M. pleasure: But you are not, upon pain of the King's highest displeasure, to own to any person whatever, except R. Adml. Stewart, that you have received this Order, or any other relating to this Spanish ship, or even that the news of her being cast away was known in England before this sloop went from hence; but when the Spanish Officer shall apply to you (as undoubtedly he will) for the release of the effects, you are to tell him, that you will send the King an account of what has happened, and that you cannot take upon you to part with so considerable a cargo, till you have H.M. orders for it, with which you will acquaint him assoon as ever they come to your hands. You will be sure to use the Spaniards very civilly, and suffer them to go away or not, as they shall desire, but on no account to convey away any part of their effects. As the punctual execution of this order, in every part of it,, as well with regard to the secrecy, as to the detention of the effects, is of such importance to H.M. service, I cannot too much recommend it to you; and lest it should be suspected, that the sending of this sloop is occasioned by this affair; you are to give out that the reason of it, was to acquaint you with H.M. design of sending two Regimts. to Jamaica, and to order you to make the necessary preparations for them. You are to communicate this letter, in the utmost confidence and secrecy to R. Admiral Stewart, to whom I write by H.M. Order, to be assisting to you, and to whom also the same secrecy is enjoined. P.S. Nov. 11th, 1730. Since the writing of what is above, I have received your letter of the 19th of Sept. last, with the papers inclosed, and laid them before the King, and I have the pleasure to acquaint you, that H.M. approved the order you gave to the Captain of the Fort at Port Royal, which, you will find, is conformable to what I now send you: But the King was sorry to see, that some part of the treasure on board the Spanish wreck is most probably carried off: However H.M. would have you endeavour to recover all that can possibly be got of what is left behind, and keep it safe, and without any diminution or embezzlement, in the manner above directed. You will not fail to send me the earliest account you can of your proceedings in this affair etc. Draft. 4 1/8 pp. [C.O. 137, 53. ff. 274–276.]
Nov. 9.
521. Same to Same. Refers to letter of Oct. 12th announcing sending of regiments etc. Continues: But as my letter went by the man of war that carried those orders from hence to Gibraltar, and consequently you will not receive it till those regiments actually arrive, H.M. has thought proper to dispatch this sloop on purpose to you, that you may have previous notice of it, and make the necessary preparations for the reception of the regiments and the landing of them at such places, as you shall judge most convenient with regard to the service for which they are intended, and also to provide in the best manner you are able for their quarters and subsistance, towards which H.M. does not doubt but the Island of Jamaica will readily contribute whatever may be wanting on their part, as has formerly been done in like cases; However orders are given for supplying the troops with provisions, till such time as you shall be able to procure the necessary allowances from the Island for it. As H.M. thinks all reasonable encouragement should be given to the soldiers in order to engage them the most effectually to perform the service on which they are sent, and as nothing will so much contribute to the preservation of the peace, as well as to the flourishing condition of the Island, as the getting greater numbers of white men to settle there, H.M. thinks it would be proper to have an act of Assembly passed for allowing the soldiers, as well those belonging to these two regiments, as to the Independent Companys that are now in the Island some greater encouragement than is already provided for them by the late Act of Assembly, and that the purchasers of all the rebellious negroes that shall be taken, whether they are disposed of to the South Sea Company, or otherwise, shall be obliged to send them to such places as are to the leeward of the Island, that it may be more difficult for them to return thither; and as a further reward of their services to give out of the settlements possessed at present by the rebellious negroes, lands for plantations to such of the soldiers, as may be willing to settle in the Island, in order to encourage them to do it, when those rebellious negroes are suppressed; and before that can happen H.M. will direct the proper orders to be sent for the discharge of such soldiers as shall be willing to become planters when that service is over. You will communicate this letter to Rear Admiral Stewart, who will receive from the Lords Commissioners of the Admiralty the proper orders in relation to this service, upon which you will consult with him, so far as he may contribute to the carrying it on: and it will be proper that a fregate should be sent to cruize to the windward of the Island in order to look out for the men of war and transport ships that go with these forces, and to give the commanding officers an account of the disposition which you shall have made for their landing. Draft. 4½ pp. [C.O. 137, 53. ff. 277–279.]
Nov. 10.
522. Mr. Popple to Mr. Fane. Encloses for his opinion in point of law Act of Jamaica (1724) for vesting the equity of redemption of certain lands of Thomas King decd., in Andrew Arcedeckne and Alexander Henderson etc. [C.O. 138, 17. p. 802.]
Nov. 10.
523. Same to Same. Encloses for his opinion etc. Act of St. Christophers for settling the estates and titles of the inhabitants etc. [C.O. 153, 15. p. 64.]
Nov. 10.
524. Council of Trade and Plantations to the King. Describe Act of Jamaica to prevent dangers from disguised Papists etc., "against which no complaint has been made to us" etc. Conclude:—We are of opinion that your Majesty's confirmation of it will be a seasonable check to the growth of Popery in Jamaica, and may corroborate the measures your Majesty has now the goodness to take for the defence and security of that Island. [C.O. 138, 17. pp. 303, 304.]
Nov. 10.
St. James's.
525. H.M. Warrant remitting in favour of his widow and children, the forfeiture of the property of Edward Chambers, planter, Virginia, who committed suicide in the woods, amounting to 91l. 17s. Virginia money. Countersigned, Holles Newcastle. [C.O. 324, 36. p. 243; and 324, 50. pp. 82, 83.]
Nov. 10.
526. Duke of Newcastle to Governor Hunter. Encloses, in accordance with his recommendation, H.M. Warrant for inserting in the next General Pardon, the name of Peter Miller, convicted of murder at St. Jago de la Vega etc. Signed, Holles Newcastle. Copy. [C.O. 324, 36. p. 244.]
Nov. 10. 527. Memorial of loss and damage (843l. 16s. 3d. S. Carolina money, = 120l. 10s. l0d. sterl.) sustained by John Govan of London, mercht., and Company owners of deerskins, shipped to him from Charles Town, on board the Kilmington taken by a Spanish privateer 28th July, 1727, and carried to the Havana. Deposition, signed John Govan. Endorsed, Recd. 13th Nov., 1730. 1½ pp. Enclosed,
527. i. Invoice and bill of lading of above. Copies. 1¾ pp. [C.O. 388, 91. Nos. 20, 20 i.]