America and West Indies: December 1733, 1-15

Pages 243-262

Calendar of State Papers Colonial, America and West Indies: Volume 40, 1733. Originally published by His Majesty's Stationery Office, London, 1939.

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December 1733, 1-15

Dec. 3. 415. Governor Lord Howe to the Duke of Newcastle. Duplicate of 22nd Nov. Endorsed, R. 11th March. [C.O. 28, 45. ff. 279, 279 v., 280 v.]
Dec. 3.
416. Same to Same. Least any accident shoud have happen'd to ye ship by wch. I had the honour to send yr. Grace my last packetts and it being of ye utmost consequence to this Colony that some further relief shoud be immediately granted them I hope you will forgive the liberty I have taken to trouble yr. Grace with. duplicates etc. Signed, Howe. The above in his own hand : continues in another :I must beg your Grace will forgive my negligence in not acquainting you in my last with the design of the Council and Assembly to join in two petitions to H.M. and the Parliament for further relief in their unhappy condition, but in my letter to the Duke of Rutland I desir'd him to let your Grace know it and at the same time that I begg'd your Grace's pardon for having forgot to do it myself ; I have now the honour to inclose to your Grace both the petitions with an Address from the chief planters that are neither in the Council nor present Assembly, as the petitions pray not only a free exportation but also that part of the dutys upon importation of sugars may be taken off and in lieu thereof an inland duty laid on refin'd sugars, I thought it might be necessary to have the petitions from the two branches of the Legislature supported by an address from the gentlemen of the best distinction in this place to shew that every one was satisfied with and approv'd of what was done that it might not be enforc'd in Parliament the Governor's interest or power with the Council and Assembly had oblig'd them to present petitions of this sort when the inhabitants in general are against it ; therefore to prevent any such objection I sent this address which might be produc'd if there was any occasion and to shew that the characters and fortunes of those who sign'd it are as great as any here, several gentlemen might be sent for to be examin'd to both these points that I daresay will be even against everything that is pray'd for I mean some of the merchants in the City as the two Mr. Tryons, Mr. Sommers, but I believe to oblige these gentlemen to speak the truth it wou'd not be improper to have Mr. Lascelles to attend at the same time, that if they shou'd prevaricate, he might contradict them he is as considerable a merchant as any, knows more of the gentlemen's characters here and very different from the others in his way of thinking. I nam'd the first because tho' I am sure they will be against everything that is propos'd by the Ministry yet their private obligations to the gentlemen of this island are such they will be forc'd to speak the truth tho' never so much against their inclinations, and our opposers will not pretend to doubt their veracity being their own friends. All this that I have said is in case your Grace shoud think we are applying in a proper manner for relief, the reason of my sending these petitions inclos'd in a private letter is if your Grace shou'd be of opinion our application to Parliament is improper that petition might be stifl'd, but if your Grace shou'd think we are right, you will be so good to send it to Mr. Sharp or who ever else your Grace shou'd approve of in order to it's being presented to the House of Commons. I hope your Grace will pardon me if I beg your assistance in what we ask, especially if what we have now offer'd is in an agreeable manner to your Grace and your friends, which I shall ever take all the care I can to have done whenever I know there is anything to be ask'd from hence. If your Grace shou'd think us too early in this request, having had a bill pass'd the last sessions in our favours, I must acquaint your Grace the people here are generally in a most miserable condition and if not soon reliev'd it will prove too late for unless they are put on an equal footing with their neighbours the French, they must in a very short time be intirely undone, but I doubt not if we have the happiness to have what we now ask granted, be it only for a few years we shall get so much the better of our rivals in this valuable trade they will never be able to come in competition with us again. The granting us this will not only be an immediate advantage to the Sugar Islands but also a vast benefit to the Northern Colonies by enabling our planters to take a much greater quantity of their lumber and their commodities and allowing them much better price for what they bring than they are now able to do. I hope I have now got the Assembly to consent to pass an Agent's bill to your Grace's satisfaction (Mr. Sharp, Teissier and Leheup) ; there are still some that object to Mr. Leheup but as your Grace was pleas'd to order me to do what I cou'd to get him nam'd and as Mr. Walpole was very desirous and very pressing to have him continu'd, I have taken a good deal of pains about it and believe I shall succeed. If I shou'd be mistaken in this bill I must beg your Grace will not think anything has been omitted on my part, but believe I do all I can in obedience to your commands etc. Encloses "a little pamphlet wrote by Mr. Walpole's Deputy here to shew the many difficultys the sugar planters now labour and how necessary a direct exportation is, to preserve this Colony." Signed, Howe. Endorsed, R. 4th March. 3 pp. Enclosed,
416. i. Petition of Council and Assembly of Barbados to the King. 13th Nov., 1733. Several laws were heretofore made restraining the importation of sugars into England, and preventing their being carryed to foreign ports, without being first landed there, which laws fully answered the intentions of the Legislature whilst the subjects of your Majesty's predecessors were masters of the sugar trade, and proved greatly beneficial to England by advancing its navigation, and producing a considerable balance of trade in its favour, by exporting from thence great quantitys of sugar to France, Holland, Flanders and other foreign nations. The sugar trade is now upon a quite different footing than it was when those laws were made, as the foreign Powers have very much encreas'd their sugar plantations by giving their subjects liberty to carry their sugar directly to most of the marketts in Europe that used to be supplyed with English produce, whereby they save from twenty to forty pr. cent upon every voyage, which advantage alone must soon gett the sugar trade from your Majesty's subjects (unless timely prevented) to the great prejudice of your Majesty's Sugar Islands and consequently of the Trade and Navigation of Great Britain. Notwithstanding those foreign powers have had this great advantage for some years past, yet your Majesty's subjects are still restrained to British marketts, and pay high dutys upon importation, which has brought this Colony to the lowest ebb. Petitioners humbly conceive, if they were once putt upon an equal footing with foreigners, as to a direct exportation of their sugars to the several ports of Europe they could still preserve themselves, and gain a superiority over foreigners in the sugar trade, and thereby add a considerable ballance to the national stock ; more especially if the high dutys now pay'd upon importation be abated, and an inland duty be laid upon refin'd sugar consumed in Great Britain as an equivalent for such an abatement, which as your Petitioners humbly apprehend would not only preserve your Majesty's Sugar Plantations, and thereby support and maintain your Majesty's Northern Colonys, and promote a greater consumption of the produce of Ireland, but would also be greatly advantageous to the Trade, Navigation and strength of Great Britain etc. Copy, certified by James Mytton, D. Secry. and D. Clerk of the Council. 1 large p. [C.O. 28, 40. Nos. 21 and (duplicate) 22.]
Dec. 3. 417. Same to Same. Enclosed.
417. i. Inventory of stores of war in Barbados, Sept. 23, 1732. Duplicate of Oct. 16, 1732, encl. i.
417. ii. Address of Planters, Merchants and Inhabitants of Barbados to Governor Lord Howe. Return hearty and sincere thanks for H.E's. "great care of us at this juncture in recommending it to the Councill and General Assembly to apply to his most gracious Majesty and to the Parliament this next sessions for some further reliefe in our trade" etc. Pray for H.E's. "best offices in our behalf, that we may be put upon an equall footing with foreigners as to a direct exportation of our sugar, and be no longer restrained to unload them first in Great Brittain, and that ye dutys upon sugar upon importation may be in some measure abated, which we humbly apprehend will support this sinking Colony, and make us, what for many years heretofore we were, highly advantageous to the trade, navigation and strength of Great Brittain. 160 signatures. 1 large p. [C.O. 28, 45. ff. 281 v., 282-284 v., 285 v., 286.]
[Dec. 3.] 418. Memorandum of pamphlet on the Sugar Trade, referred to in preceding letter. [C.O. 28, 45. f. 250.]
Dec. 3. 419. T. Lowndes to the Council of Trade and Plantations. Some time ago H.M. sent from the Tower ordnance for the defence of Charles Town. I beleive my information may be depended upon which says, "that they lye upon the beach without carriages, exposed to the weather, and sand ; and if some care is not taken, they will certainly be honycombed and spoiled. I am, My Lords, Your Lordps'. Most obedient and most humble serv.," Signed, Tho. Lowndes. Endorsed, Recd. 3rd, Read 11th Dec., 1733. Holograph. Addressed. Sealed. 1 p. [C.O. 5, 362. ff. 210, 211, 211 v.]
Dec. 4.
420. Council of Trade and Plantations to the Duke of Newcastle. Enclose copies of affidavits relating to the loss of the Spanish Flota etc. Enclosed,
420. i., ii. Copies of depositions of John Colcock and Edward McIver. v. 17th Sept. supra. [C.O. 5, 401. p. 76 (covering letter only) ; and (enclosures only) 5, 582. ff. 6-9, 10-11.]
Dec. 4.
421. Mr. Popple to Mr. Fane. Encloses a volume of Acts passed in South Carolina 1721-1724, and requests his opinion, in point of law, upon the act passed in 1724, for settling the estate of Richard Berresford decd. [C.O. 5, 401. p. 77.]
[Dec. 4.] 422. Petition of John Beresford to the Council of Trade and Plantations. During his infancy, and on the petition of his younger brother Richard, of the half-blood, an act was passed in S. Carolina, 1723, for settling the estate of Richard Beresford Esq., whereby petitioner was deprived of one moiety of the lands and tenements and goods bequeathed to him by his father. Having now come of age and being about to sail for S. Carolina, to take possession of his estates, prays for immediate repeal of this act "in regard the act on the face of it is an unjust and plain invasion of your petitioner's property against the most known positive rules of law and in regard there is no saving clause incerted therein." Endorsed, Recd. (from Mr. Sharpe), Read Dec. 4, 1733. 1 p. [C.O. 5, 362. ff. 209, 212 v.]
Dec. 4.
New Providence.
423. Governor Fitzwilliam to the Duke of Newcastle. In obedience to your Grace's commands, I take the liberty to acquaint your Grace of my arrival here five days since, which is too short a time to be able to give your Grace any particular account of the present bad state and defenseless condition of these islands ; In July last there was a hurricane that destroyed all the corn and fruits of this Island, which has made all sorts of provisions much scarcer than usual, and this scarcity, I imagine, has occasioned a sickness that has carried off a great number of the inhabitants. I have not yet been able to get a particular account of what effects have been sav'd out of the Spanish wrecks, but I am informed they are still working upon them, and that they have found where they all ly, except one, on board of which there is said to be three millions of pieces of eight ; a few days ago a vessel went from hence to see what they were doing, when she returns, I hope to collect some account worthy of your Grace's notice, both with regard to what they have saved, and likewise what they are doing at present. I beg leave to acquaint your Grace, that Mr. Colebrooke, whom you did me the honour to recommend to me, is a person of so restless and turbulent a spirit, that he has kept the people of this island in a continual flame, ever since his arrival here, insomuch that all the power of the government has for some time past been trampled upon, and I fear it will be with great difficulty, I shall be able to make them sensible of the mistakes he has designedly led them into, in order, as I apprehend, to render himself considerable by lessening and even contemning all orders of the Governor and Council ; I am at present doing everything in my power to serve and oblige him, because I imagine from your Grace's recommendation it will be agreeable to you I should do so, but I own I am affraid from the man's character, he will not be long able to keep within the bounds of decency. I flatter myself that my behaviour in this Government will be such, as to merit the continuation of that favour your Grace has hitherto been pleased to show me, etc. Signed, Rd. Fitzwilliam. Endorsed, R. 25 Janry. 2 pp. [C.O. 23, 14. ff. 233-234 v.]
Dec. 5.
New Providence.
424. Governor Fitzwilliam to the Council of Trade and Plantations. It is my duty to acquaint your Lordps. that I arrived here on the 29th past, where I find everything in very great disorder, there being scarce any form of Government remaining, every man having for some time past done what his own inclinations led him to, all which riotous proceedings I am informed, have been occasioned by the turbulency of one Colebrooke, who has heretofore been mentioned to your Lordps. This man it seems has poisoned the minds of so many of the chief inhabitants, that when order of government is issued, the question among them is, whether there is any English law to support it. There has been a great sickness among the inhabitants, which has carried of many of them, among whom dyed Mr. Thompson, first of the Council, who has had the Government since the death of Mr. Rogers, and also two or three others of the Council, so that with those dead and absent, there were but three of the members named in my Instructions upon the Island, which made it necessary for me to swear in two more, to make a quorum for the present, which I accordingly did, namely William Stewart and Chaloner Jackson Esqrs., but I forbear filling up the other vacancys to the number of seven, as I am impowered by my Commission, because some of the Councillors named in my Instructions are dayly expected to return from the Continent etc. Hears the Spaniards are still working upon the wrecks etc. as preceding. Continues : The inhabitants of these islands are greatly rejoiced at what the Crown has agreed to do for them, and not without great reason, for to speak the truth, if H.M. had not been graciously pleased, to order that the right of the Proprietors should be bought out, and some protection given to the people for their persons and effects from an enemy, it would be impossible for this settlement to subsist, much less to attain to that improvement, which I hope a little time will produce. Signed, Rd. Fitzwilliam. Endorsed, Recd. 23rd Jan., 173 3/4, Read 30th July, 1735. 1 pp. [C.O. 23, 3. ff. 110, 110 v., 111 v. ; and (abstract) 109.]
Dec. 6. Whitehall. 425. Order of Committee of Privy Council for Plantation Affairs. Referring following to the Council of Trade and Plantations for their report. Signed, Temple Stanyan. Endorsed, Recd., Read 18th Dec., 1733. 1 pp. Enclosed,
425. i. Petition of several merchants and others of the City of Bristol trading to S. Carolina to the King. By an act of S. Carolina, Aug. 20th, 1731, and sent over for your Majesty's approbation, the funds (which were settled for calling in and sinking the 106,000 paper money formerly issued) are otherwise applyed and a further sum of 104,725 1s. 3d. of paper credit is imposed on your Majesty's subjects contrary to the publick faith and credit of said Province, and there has been an attempt lately to raise a further sum of 250,000 in paper money the consequences of all such imaginary value will be greatly prejudicial to the propertys of your Majesty's subjects and, as we most humbly conceive, contrary to your Majesty's Royal Instructions to the Governor etc. By the said act an exorbitant duty of 10 pr. head is imposed and continued on all negroes imported by your Majesty's subjects into the said Province to the very great discouragement of the trade and exportation of the manufactures of Great Britain. By another act etc. of 1696, continued by subsequent acts, it was enacted that "no person residing therein shall be arrested, sued or impleaded in any Court or imprisoned for any debt whither the same be by bill bond or any other specialty reckoning or accompt whatsoever contracted before his arrival there till and after five years after his arrival there," which said act has given encouragement to evil persons to go to said Colony from others of your Majesty's and thereby have defrauded some of your petitioners of large sums of money which they had intrusted them with in the other Colonys, it being not in their power to seize either their persons or effects so screened under this five years law tho' they live in great splendour and affluence on the property of their creditors. Pray for repeal of those two acts and for prevention of any duty on negroes imported so pernicious to the British Trade, and that they may be heard by their Counsel etc. Signed, Jacob Elton, Mayor and 41 others. Copy. 3 pp. [C.O. 5, 362. ff. 213-215, 216 v.]
Dec. 6.
426. Order of Committee of Privy Council. Referring following to the Council of Trade and Plantations, for their report. Signed, Temple Stanyan. Endorsed, Recd. 14th, Read 18th Dec., 1733. 1 p. Enclosed,
426. i. Petition of several merchants and others of the City of London trading to S. Carolina to the King. Petition against Act for appropriating 104,725 etc. as above, and that they may be heard by their Counsel against it, and that no duty be imposed for the future on negroes imported etc., as preceding, but without reference to debtor act of 1696. 51 signatures. Copy. 2 pp. [C.O. 5, 362. ff. 217, 218-219, 220 v.]
Dec. 6.
427. Order of Committee of Privy Council. Referring to the Council of Trade and Plantations for their opinion on such parts of enclosed petition as relate to the Act of S. Carolina complained of. Signed, Temple Stanyan. Endorsed, Recd. (from Mr. Paxton), Read 9th Jan., 173 3/4. 1 p. Enclosed,
427. i. Petition of Thomas Cooper, James Greeme, and Rowland Vaughan of S. Carolina, gentlemen, to the King. Abstract. Divers of your Majesty's subjects being desirous to settle on vacant lands on the frontiers vested in the Crown by the surrender of the Lords Proprietors etc., did in Dec. last, pursuant to H.M. Instructions, obtain warrants from the Governor to H.M. Surveyor General requiring him to lay out several quantities of lands, that they might obtain grants upon the conditions appointed by H.M. Instructions. By virtue of said warrants, they procured several parcels of uncultivated lands belonging to the Crown, to be laid out etc. and certified by the Surveyor General according to the usual method of the Province. Soon after, the lower House of Assembly, through the instigation of Governor Johnson, on 3rd Feb. last issued one or more warrants of commitment commanding the Messenger of the House to take into his custody James Fergason, Robert Godfry, William Staples, and William McPherson, Deputys to James St. John, Esq., H.M. Surveyor General, for running out patent lands and lands formerly surveyed contrary to law, H.E.'s warrant and the Surveyor General's precept. On 10th Feb. the lower House issued another warrant to the Messenger to take into his custody the petitioner, Thomas Cooper and one Job Rothmahler for aiding, assisting and superintending the Deputy Surveyors in the same. The lands laid out by the Deputy Surveyors were lands belonging to the Crown, vacant and uncultivated, and never had been laid out or surveyed before by virtue of any lawful authority either from your Majesty or the Lords Proprietors. The aforesaid orders of commitment were issued with a view to intimidate the Surveyor General and his Deputies from doing their duty in finding out and surveying and all other persons from making discovery of such of the Crown lands as had been privately and fraudulently surveyed and concealed from your Majesty under colour and pretence of old patents granted to the ancestors of said Governor and other persons who had been formerly created Landgraves or Cassiques of the said Province, which patents were either originally void in law or were become void by reason of their not having been carried into execution in the lifetime of the original grantees, but have lately been set up to the prejudice of your Majesty's title by the heirs or assigns of the original patentees etc. The said orders of commitment were issued with the further view of hindring the claims and pretended titles set up under colour of the said patents from undergoing a judicial examination in the Courts of the Province where such matters are properly cognizable etc. Cooper was taken into custody accordingly on 22nd March, at which time the Assembly was adjourned, and was not to re-assemble for another 10 days. James Greeme, his Counsel at law, at his request, sued out on his behalf H.M. writ of Habeas Corpus grounded on the Statute returnable immediately to the end that the cause of his imprisonment might be legally examined, forasmuch as he, by the order of commitment, was not charged with any breach of privilege, contempt or other offence against the House, or of any crime for which by the laws of the land he ought to have been deprived of his liberty etc. The Messenger refused to obey the writ of Habeas Corpus. No return being made of it within three days after the delivery of it, Greeme sued out of H.M. Court of Common Pleas the usual and lawful original process against the said Messenger in an action brought on the penalty of the Statute for his refusal. Said process was delivered by Greeme to the Provost Marshall, the proper and only officer appointed for its execution. But the process was never served or executed upon the Messenger. The House being afterwards reassembled, 5th April, issued out another warrant commanding the Messenger to take Greeme into his custody for signing and delivering the aforesaid process etc. Greeme on being arrested immediately preferred a petition to the Lower House in a very humble and submissive manner for his discharge, and Cooper petitioned in like manner etc. Both petitions were rejected. Greeme thereupon obtained from the Chief Justice H.M. writ of Habeas Corpus directed to the said Messenger, which was delivered to him by the petitioner Rowland Vaughan, for which he was likewise by order of the lower House committed to the custody of their Messenger, and thereupon resolutions were passed by the House that the Messenger should yeild no obedience to any writ of Habeas Corpus for any person that was committed by order of the said House. Petitioners having undergone a tedious and close confinement and having made frequent applications for writs of Habeas Corpus to several of the Magistrates who by the laws of the Province are impowered and required to grant the said writts, and having lastly applied to H.M. Governor who by the laws is also obliged and by the royal Instructions is strictly enjoyned to take care of the due execution of the laws and that writts of Habeas Corpus be not denyed, and having been denied the same, were at last obliged to petition the lower House in such terms as they thought fitt to direct for their enlargment, and then with difficulty were discharged on payment of exorbitant fees amounting to upwards of 300 besides the damage they sustained in their several callings. In order further to distress them and debar them from pursuing their legal remedies against the several officers by whom petitioners have been injured and to skreen and shelter the said officers from the penalties they have incurred by refusing to put in execution the laws made for the preservation of the liberty of H.M. subjects, as well as for mainting the royal prerogative etc., the Assembly have passed an act of a most unusual and extraordinary nature intituled for the prevention of suits and disturbances to H.M. Judges and Magistrates in this Province on account of the Habeas Corpus Act. To which act although it is expressly contrary to several of his Instructions, the Governor hath thought fitt to give his assent etc. The aforesaid proceedings were not only designed to deter H.M. officers from surveying Crown lands fraudulently concealed etc., but also by a way unpresident and unknown to the English Constitution to assume to themselves an independant and uncontroulable power and jurisdiction to determine H.M. rights and to prevent H.M. subjects from pursuing their legal remedys in the ordinary Courts, or by appealing from them to H.M., and to wrest out of H.M. royal hands his undoubted prerogative of administering justice etc. Pray to be heard by their Counsel against said Act, and that it may be repealed. Pray for such further relief as H.M. shall think fit. Signed, Benja. Whitaker, Robt. Hume, Attorneys for the Petitioners. Copy. 8 pp. [C.O. 5, 313. ff. 3, 4-8, 10 v.]
Dec. 7.
428. Mr. Popple to Mr. Fane. Desires opinion in point of law of Act of Jamaica, 1733, to entitle John Goulding senr., of the parish of Vere, planter and his family to the rights and privileges of English men born of white ancestors etc. [C.O. 138, 17. p. 390.]
Dec. 8. 429. Deposition of Joseph and William Jefferis, of Bristol, merchants. Deponents have greatly suffered by the duty of 10 Carolina money pr. head on negroes, and the increase of the paper money there (cf. 6th Dec.). They are thereby very much discouraged in carrying on their trade to S. Carolina ; for they not only trust the buyer with this duty, but he has it in his power, and it's frequently made use off when goods are sold the buyers for this paper money, to take of it up at interest and pay the seller rather then pay the produce of the Colony at ye common price, thereby to inhance the price of the produce according to the necessity of factors to load the ships consign'd them ; by wch. it follows that those persons who have sold on credit long since when their produce was much lower are to receive it at a higher price. Deponents further say that James Hasel late of Barbados (who with his partner Isaac Crumpe owe deponents and others owners of a ship above 4000 Barbados mony on bond for the produce of negroes by them sold) arriv'd not long since at S. Carolina, and brought with him from thence considerable effects, but that by means of the five years Act, their Factors have been prevented from seizing the same : and that as the said Crumpe hides from his creditors in Barbados, these deponents are with others like to be great sufferers thereby. Signed, Jos. Jefferis, Will. Jefferis. Endorsed, Recd. Read 9th Jan., 173. p. [C.O. 5, 309. ff. 1, 2 v.]
Dec. 10.
Lincoln's Inn.
430. Mr. Attorney General to [? Mr. Popple.] Before Mr. Sollicitor and I can give our opinions on the representation of Mr. Smith which you was pleased to send us, we want to be more particularly informed of the authority by which the late Lords Proprietors of North Carolina made the fundamental constitutions therein mentioned etc., likewise whether all the Lds. Proprietors have surrendered up their rights, and in whom the power of making laws is now vested etc. Signed, J. Willes. Endorsed, Recd. Read 11th Dec., 1733. 1 p. [C.O. 5, 294. ff. 76, 81 v.]
Dec. 11.
431. Mr. Popple to Mr. Willes, Attorney General. In reply to preceding (Dec. 10), encloses Charter of Carolina, by King Charles II, and the Governor's Commission etc. [C.O. 5, 323. ff. 107, 107 v.]
Dec. 11.
432. Council of Trade and Plantations to the King. Propose Thomas Hals for the Council of Jamaica, in the room of John Moore, decd. [C.O. 138, 17. p. 391.]
Dec. 11. Whitehall. 433. Council of Trade and Plantations to the Committee of the Privy Council. Pursuant to Order of 23rd Nov., enclose following. Annexed,
433. i. Draught of Additional Instruction to Governor Belcher. Whereas a Bill did pass the Council and House of Representatives of Our Province of the Massachusets Bay on the 20th of June last, entituled an Act for granting the sum of 3000 for the support of H.M. Governor, and whereas application has been humbly made to Us, in your behalf, that We would graciously permit you to give your assent to the sd. bill. Now having taken the premises into Our royal consideration, and more particularly, that you have hitherto strictly adhered to Our Instructions in refusing to accept of any sum of mony whatsoever from the Assembly, upon terms contrary thereto, and also taking notice of your behaviour in the sd. Assembly, in the year 1732, where you asserted the rights of Our Crown, and endeavour'd to disswade them from pursuing the undutifull and pernicious measures they were then engaged in, We do therefore, out of Our special grace and favour to you, condescend to your request made in your behalf, and you are hereby impowered to give your assent to the aforementioned bill. [C.O. 5, 917. pp. 92, 93.]
Dec. 11.
434. Council of Trade and Plantations to the King. Recommend granting of 5,370 cannon shot of different sizes, as requested by the Lt. Gov. Council and Assembly of Antigua, the people not being in a condition to be at the expence of supplying themselves with such a quantity of shot, "which may be necessary for their defence in case of an attack ; and considering the importance of this Colony to the trade of your Majesty's subjects, and the danger to which they would be exposed from the neighbourhood of the French Colonies in case of a rupture" etc. [C.O. 153, 15, pp. 236-238.]
Dec. 12.
435. Mr. Popple to Mr. Fane. Encloses (in book of laws), for his opinion in point of law, Act of the Leeward Island for the supplying the want of fines and recoveries in these islands. [C.O. 153, 15. p. 239.]
Dec. 13.
436. Council of Trade and Plantations to the King. Recommend for confirmation Act of St. Xtophers, 1722, to enable Andrew and Peter Audain etc. (v. 8th Aug.), "as the act hath lain in our office for above ten years, in which time no objection hath been made against it, and the infants therein mentioned have long since come of age" etc. [C.O. 153, 15. pp. 239, 240.]
Dec. 14.
Sheerness. Downes.
437. Capt. Fytche to [? Mr. Popple]. Sir, Noe alterations having hapen'd at Canso this year, can only send you the fishing scheme etc. Signed, Robt. Fytche. Endorsed, Recd. 2nd Jan., Read 18th April, 1734. p. Enclosed,
437. i. Scheme of the Fishery at Canso for 1733. Fishing ships, none. British sack ships, 14 (50 to 150 tons). Ships from America, 6 (30 to 50 tons) ; schooners and sloops from America, 115, (15 to 36 tons burthen). Men belonging to British sack ships, 130 ; from America, 740. Passengers by British ships, none. Boats kept by fishing ships, none. Quintals of fish, made by British fishing ships, ships from America and inhabitants, none ; by schooners and sloops from America, 46,000 ; carried to foreign markets, 40,000 ; to N. England, 6000. Train oil, 20 tons made by schooners and sloops from America. Price of fish, 11s. 6d. per quintal ; of train oil, 11 10s. per ton. Seal oil and furs, none. Stages and trainfats, none. Inhabitants, exclusive of the garrison, 30. Fishermen who stayed last winter, none. Signed, Robt. Fytche. 1 p. [C.O. 217, 7. ff. 15, 16, 18 v.]
Dec. 15.
New York.
438. Governor Cosby to the Duke of Newcastle. Encloses following. Continues :When I was att Albany last September I viewed the fort and went to Schanectady to see that likewise and found both in a very ruinous condition. I acquainted myself with their scituation with respect to Canada as well as to our own settlements and am convinced that neither of them at present answer the end for which they were first built, for the country is now so farr pretty well settled, and the people are daily settling beyond them as farr as they dare, which I own is not farr, in my oppinion therefore the most effectual way to extend our settlements is to erect forts in places more advanced towards Canada and so as to have a line of forts between that part of Hudson's River that lyes near the lake which leads to Fort Chamblie in Canada and the Fort at Oswego, such a line of frontier garrisons would keep the French from incroaching upon us (as they have lately done by building a fort between Albany and the Lake) and would encourage our planters to extend their settlements to our advanced garrisons, by which means the quit rents will be much augmented. I have discoursed this affair with some of the Assembly who like the thing but seem averse to the expence ; and I much question whether I shall at any time be able to bring them to it, tho' it is apparent that the common interest of the Province in time of peace and their protection in time of warr is highly concerned in it, if I could but make a begining of building one fort between Albany and the new French fort on this side of the lake, even that would stop the progress of the French and incourage a multitude of settlements to be made beyond Albany, but I can't promise myself much success in it here, if H.M. would be at the expence I am confident it would answer all my hopes. I humbly submit this to your Grace's consideration etc. Signed, W. Cosby. Endorsed, R. 7 Febry. 1 pp. Enclosed,
438. i. Copy of Cosby to Board of Trade. Dec. 15. 4 pp. [C.O. 5, 1093. ff. 297, 297 v., 298 v300 v.]
Dec. 15.
New York.
439. Same to Same. Gives account of his supplying the French garrison at Louisburg as in following letter. The Council were of opinion he ought to do so, as being both humane and agreable to the treaties between the two Crowns. The cargo they brought was very inconsiderable, only 12 hogsheads of rum and 2 casks of oil, they depending chiefly on the money and bills of exchange they brought with them etc. The fortifications at Louisburg are considerable, but the barreness of the island on which they cannot raise the least provission, and the uncertainty of the crops in Canada must make the subsistance of the garrison very precarious etc. Refers to following. Signed, W. Cosby. Endorsed, Recd. R. 7th Feb. 1 p. Enclosed,
439. i., ii. Governor St. Ovide de Brouillan and Intendant Le Normant to Governor Cosby. 11 November 1733, Louisburg. Duplicates of following encl. iii.
439. iii. Duplicate of encl. (acct.) ii following. [C.O. 5, 1093. ff. 290, 291 v., 292, 294, 296.]
Dec. 15.
New York.
440. Governor Cosby to the Council of Trade and Plantations. Abstract. When he was at Albany in Sept. to meet the Six Nations, the Sachems of the Mohocks, the most warlike of them, desired a conference with him. He summoned the Councils who attended him, and the Sachems asked for redress of a gross deceit and injury done them by the Corporation of Albany. They said they were the natural owners and proprietors of that part of the Mohocks' country where they lived and which their ancestors had held and cultivated etc. They were under the protection of His Majesty, and relied on his justice and goodness that the Government would never make any attempt to dispossess them. Yet a year or two ago, the Mayor and some others of the Corporation of Albany did insinuate to them that Governor Montgomerie had an intention to take their lands from them, and possibly some future Governors might pursue the same intentions, and that there was but one way to secure their lands from such attempts, which was to make them over to the Corporation in trust for them, and that then the Corporation would withstand all such attempts and preserve their lands to them etc. They accordingly executed a deed, as they supposed, making over their lands to the Corporation in trust for such time only as they should think fit. The Corporation promised them a counterpart of that deed, but never gave it them. Some time afterwards, they were informed that it was not a deed of trust, but an absolute conveyance of 1000 acres of low or meadow ground at Tiononderoga, their best planting ground etc. He sent for the Mayor desiring him to bring the deed, which being read and interpreted, the Sachems cried out with one voice that they were cheated, and vowed that as long as there should be one Mohock liveing, the people of Albany should never have a foot of that land. If they had no redress, they would leave their country and go over to the French. They begged to have the deed delivered up to them. He enquired if the Corporation had give them any consideration for it, whereby it might appear that there was an intention of a purchase, but not finding that they had given them anything, and the fraud being but too evident, he gave the deed into the hands of the Sachems, who with great rage tore it into pieces and threw it into the fire etc. The Corporation talk of applying to H.M. for a confirmation of their charter, pretending that they have a right to these lands by the charter granted them by Collo. Dongan. States that case and is persuaded the Board will advise against such confirmation, the Col. Dongan having granted a charter in his own name, which gave a perpetual licence to purchase from the Indians etc. As to the 1000 acres of land at Tiononderoga, it may be fatal to the frontier settlements to grant them anyhow till they are first purchased of the Mohocks etc. On the 15th a sloop from Louisbourg arrived with two officers on board bearing letters from the Governor and Intendant of Cape Breton desiring his permission to purchase provisions for the garrison and island who were in the utmost distress. Their dependence is on Canada for bread and pease, but the crops have failed. With the advice of the Council, he permitted them to purchase specified quantities etc. A garrison depending on beef and pork from France and uncertain crops of grain in Canada must make that place in time of war very precarious, especially if our men-of-war are active etc. Encloses Acts of last session, which need no remark, except that to repeal part of a clause in an act. In obedience to H.M. Instruction has granted the swamp and freshwater therein mentioned to Anthony Rutgers etc, Set out, N.Y. Col. Docs. V. 960. Signed, W. Cosby. Endorsed, Recd. 5th, Read 14th Feb., 173. 4 pp. Enclosed,
440. i. Conference between Governor Cosby and the Six Nations at Albany, Sept. 7th-12th. Set out, N.Y. Col. Docs. V. 962. Endorsed, Recd. 5th Feb., 173. 14 pp.
440. ii. Account of the provisions (48 tons of flour, 9 tons of peas) carried from New York for the garrison at Louisburg. Endorsed as preceding. p.
440. iii. Letters from the Governor and Intendant of Cape Breton to Governor Cosby. 11 November 1733, Louisburg. Request permission for two officers (Le Gaive and De Laronde) to purchase flour, biscuit and peas for the garrison, which is in great distress. Send presents of some of their best Bordeaux and brandy. Signed, St. Ovide de Brouillan, Lenormant. Note by M. Le Novinan. Endorsed as preceding. French. Copies. 2 pp. [C.O. 5, 1056. ff. (with abstract of covering letter) 64, 65-66 v., 67 v., 70-76 v., 78 v.80, 81, 89 v.]
Dec. 15.
441. Mr. Morris to the Council of Trade and Plantations. Abstract. Since his letter enclosing some prints (v. Oct. 4) there are more made public, and some articles of complaint (v. encl. i.), which are intended to be laid before H.M., and are enclosed for the Board's perusal. The case of the Albany deed is endeavoured to be evaded by the approbation of the Council, which reflects upon the approvers, and the Governor's influence over them etc. Mr. Horsmanden is the person meant by the 14th article (encl. i.), a gentleman of breeding and sense and a barrister, but no estate, and unable to pay a mortgage maturing this month etc. Continues : The affair of the French sloop (Art. 27-30) gives much uneasiness to the inhabitants (v. preceding) : Whether as some suppose, she was sent by the French Government to sound our harbours and discover our strength : or, as others guesse, on a scheme projected by the Governour, and his brother, a Major at Annapolis Royall, (who has married a French lady of that place) to carry on a clandestine trade with the French, 'tis certain that the pretence of a bad harvest at Canada and want of provisions at Louisbourg, was but a mere sham. By the accounts we have among the mercantile folks, the French are laying in large stores of provisions in all their garrisons in America ; and a vessel they chartered here to carry provisions, it's supposed will be sent to some of their islands. Had the Governor confined the persons that sounded our harbours etc., he would have done nothing but what the French would have done in the like case, who make prisoners of any English man that goes to Canada : as your Lordps. may learne from Mr. Livingston, who goes over with this ship : he is to be heard of at the New York Coffee house in London. I sometime since sent a son of mine, with a son of the late Commissioner Swanson to Canada to learn the language ; but the Governour of Canada made prisoners of them and sent them back etc. Has s en an affidavit of the last articles. By false muster rolls and the misapplication of the soldiers' money and that of the presents to the Indians, the Governor makes a vast profit, but the consequence is that our garrisons are left defenceless and we have lost a great part of our Indians, who are gone over to the French, and the soldeirs now at New York (if the officer who made the affidavit may be believed) are most of them, either convicts transported, or papists, or both : not the most likely people to make a good defence against the French ; or the fittest to be trusted in a frontier garrison. I know several of these soldiers who have neither had pay nor clothing for several years etc. The Council's address to the Governor, telling him how happy this Province is, to be under the command of a person so able to defend it, in case of a war, which they suspect to be approaching, was brought, he is told, ready drawn into Council according to custom and signed without much hesitation, but really amounts to no more than the Governor's own address to himself. They are the only persons who have a good opinion of him, for no man was ever so universally hated etc. Continues : His new Exchequer Court, and a series of rash actions in every part of his conduct, have so farre exasperated the people, as gives room to suspect, that he cannot be long verry safe etc. The Board will find that this is confirmed by most who go from these parts, and that the Governor's recall will be necessary for H.M. service ; for the safety of the inhabitants and of the writer. Set out, N.Y. Col. Docs. V. 5, 957. Signed, Lewis Morris. Endorsed, Recd. 1st Feb., Read 13th Aug., 1734. Addressed. Holograph. 2 large pp. Enclosed,
441. i. Heads of Articles of Complaint to be exhibited against Governor Cosby by Rip Van Dam. Abstract. (i) You have not communicated any of H.M. Instructions to the Councill as by your Instructions you are obliged to do where their advice and consent was necessary. (ii), nor H.M. orders against your receiving presents, which you are positively directed to cause to be registred in the Councill and Assembly books. (iii) You have contrary to your Instruction displaced and (iv) appointed Judges, Justices of the Peace, and Sheriffs etc., without advice of councill. (v) The Councill being by H.M. appointed to be a part of the Legislative body, and as such to sit and act seperate from the other parts, you have not permitted them so to do, but (vi) have taken upon you (in order to influence their debates) to sit among them and act as their President, tho H.M. has given you only a negative voice etc., and (vii) during all the sittings of the Assembly, have not suffered the Council to proceed on any business till so late in the sessions, that they could not prepare bills necessary for the publick utility, or duly consider those prepared by the Assembly, but were compelled to pass them without amendment for want of time etc. (viii) Where the advice of the Councill has been thought necessary, you have not given general summonses, but have only summoned so small a number as would constitute a Quorum in which you were sure of a majority etc. (ix) When the advice of Councill was required, it has been usual for them to consider the same in a Committee etc., but your practice has been to concert what opinion was most suitable for your purpose and then to summon such particular members in a hurry, a majority of wch. were prepared to give the opinion desired etc. This is a virtual suspension of the members not summoned, one of which has not been summoned to any Councill for above a twelvemonth past, tho in town at every time of their sitting, which I take to be a suspention of that member without advice of Councill. (x) You have taken upon yourself to act as President of the Councill in receiving bills and messages from the Generall Assembly. (xi) You have violently taken from the members of the General Assembly bills and messages they were bringing to the Council etc. (xii) and in open Council maltreated them for so doing, and (xiii) the members of Council for daring to debate concerning their right of receiving bills and messages from the Assembly etc. (xiv) You procured a person to be appointed to the Council who is in necessitous circumstances etc. (xv) By these methods you have rendered the Council useless in their Legislative capacity, and put it in the Governor's power to squander the public money etc. (xvi) You have, by advice of Councill so partially modelled and summoned, taken upon you to erect a Court of Equity in the Supream Court by ordinance without consent of the Generall Assembly by legislative act, contrary to the laws of England, and the Royal Commission and Instructions to you etc. (xvii) For that tho' by the said ordinance it seems pretended to give only to the Supream Court such powers as the Court of Exchequer has in England, yet contrary to the known laws of that Court you have by the same ordinance impowered the Judges in vacation at sittings by them to be appointed and adjourned at their will and pleasure, to teste writs and to make writs returnable at the days of such sittings, whereby the good people of this province are subjected at all times of the year to be called from their vocations by the writs of that Court, which as it has been to me, so in time it will prove to the grievous vexation of the people etc., by rendring the proceedings in law uncertain and precarious. (xviii) The said Court of Equity is erected without any check or means to controle or prohibit it in case it should take upon it the cognisance of matters purely tryable at law and by jury, whereby the people are subjected as to their rights and liberties to the meer will and pleasure of the Judges of that Court ; whom you have taken upon you to place and displace at your meer will and pleasure ; and consequently the meer will and pleasures of Governours, is introduced to be the law etc. (xix) You have by threatning and abusive messages to the late Chief Justice endeavoured to warp him to your purposes and fright him from doing his duty. (xx) You have displaced the late Chief Justice without advice of Council etc., without cause to the world known, unless it was for giving an opinion on a matter of law that came judicially before him. (xxi) You have appointed a Chief Justice and Second Judge without advice of Councill, in all probability to promote your own purposes etc. (xxii) You have made use of the King's name to prosecute me for your own sole advantage, and refusing me the means of comeing at common justice against you, tho' requested of you by me in the humblest manner. (xxiii) You have displaced Sheriffs without advice of Councill, and put in strangers having no visible estates and without their giving any security etc. (xxiv) Some of these persons were youths unfit for these offices. (xxv) Contrary to good faith and common honesty you delivered to the Indians to be destroyed the deed given by them to the Corporation of Albany for a considerable tract of land, to the great and irreparable damage of the said Corporation etc. (xxvi) Nicholas Cooper, made by you high Sheriff of Westchester, one of the most considerable counties, is a stranger and person of no visible estate, and is supposed to have been by you put into that place in order to defeat the election of the late Chief Justice to the Assembly, in favour of one Foster, a known Jacobite, set up against him and countenanced by the now Chief Justice and Second Judge appearing at the head of his party : did actually refuse the votes of 38 of the people called Quakers, the most considerable freeholders in the said county etc. ; and you still continue Cooper in his office. (xxvii) You suffered the French sloop Le Csar which came hither from Louisburgh to trade and take in provisions etc., without any proper and sufficient enquiry into the truth of the letter of the French Governour etc. (v. preceding, encl. iii), the circumstances of the French at Cape Brittoun, the quality of the persons on board, their behaviour in coming to this place, and the true design of their coming ; all which you might have discovered (if you would) to have been very contrary to what it was pretended by them to be. (xxviii) It was known to the greatest part of this town and might have been known to you that there was no scarcity of provisions at Cape Brittoun nor a bad harvast in Canada ; that there was an Engineer and 3 French pilots on board ; that they dilligently took all the soundings and land-marks and views of land comeing into this port, which made it evident that their intention was to discover the way into and weekness of this place etc. ; for which they ought to have been confined till H.M. pleasure was known etc. On the contrary you suffered them to go back thro' the sound and thereby to discover also our soundings and land marks that other way into this port. (xxix) You suffered them to land 4 hogsheads of claret, 2 hogsheads of brandy and 2 of sallet oyle, contrary to the laws of trade and your Instructions etc. (xxx) You received all the said claret etc. by way of present etc., and this I suppose induced you to grant a liberty to trade here which you ought not to have done. (xxxi) You have caused no muster to be made of the companies of fuzilers under your command for above a year past and yet have got muster rolls signed as if there had been musters duly made. (xxxii) You instead of 100 men in each company do not keep 40. (xxxiii) You have not delivered cloathing for so many as 40 in a company, and yet procured receipts as if you had delivered the whole. (xxxiv) The cloathing you delivered was of far less vallue than what ought to have been delivered. Set out, N.Y. Col. Docs. V. 975. Endorsed as preceding. Copy. 4 pp.
441. ii. The Proceedings of Rip Van Dam Esq. ; in order for obtaining Equal Justice of H.E. William Cosby, Esq. Statement of his case, and copies of his letters to the Governor 27th Aug., 27th Sept., 22nd Oct., 1733 etc. He states (22nd Oct.) that "His Majesty having by his Instruction of 31st May, 1732, appointed Your Excellency to receive, and take to your own use, the one half of the salary, perquisites and emoluments, due to the Captain General of this Province, during my administration ; and having, by the same Instruction, appointed me to receive and take to my own use, the other half ; and your Excellency having caused a bill to be filed in Equity in the King's name, for the discovery and payment of what small matter was received by me, during my administration on that account : I therefore might well have hoped that your Excellency would voluntarily, long agoe, have rendered to me a full discovery of what you received, for sallary, perquisites, and emoluments, during that time etc." But H.E. having refused to give him such an account, he makes his own estimate, by which he makes it appear the Governor Cosby owes him 3537 0s. 9d. He estimates the emoluments derived from the exchange on money for the pay, subsistence, clothing etc. of the Companies during his administration (July 1st, 1731, Aug. 1st, 1732) at 5383 6s. 8d., making with money derived from salaries, presents for Indians etc. 8383 6s. 8d. received by Governor Cosby, whilst he received only 1975 7s. 10d. So that there was "more received by His Excellency than by Van Dam 6407 18s. 10d. He explains that H.E. not having answered his two letters of Aug. 27 and Sept. 27, in which he petitioned H.E. for his appearance to a declaration, at his suit for those monies, thus paying him the highest regard by applying for justice by petition, the method by which the King's subjects are entitled to justice even from the King himself, he then presented his declaration to the Judges of the Supreme Court now sitting, requesting them to sign a letter of request to H.E. to appear to his suit, as is usual for the highest Courts of Equity to send to the Peers of England, before issuing of the King's process against them. But not being able to show any precedent of such letter being granted by the Courts of Common Law, the Judges declined to sign it. "Whereupon my Council conceived, that no process whatsoever, that could affect your person, could in the nature of things be ; but conceived, that summons and distress infinite, as it lay against the Peers of England, and priviledged persons, might well lye against your Excellency ; and in order to that they prepared a summons, and sent it to the Clerk, to have it sealed, but he refused to seal it. Thus .. all the most respectfull ways of coming at what I conceive is justice from your Excellency ... have proved ineffectual, while .. your Excellency is using the King's name to recover of me that small matter which I received during my administration, and have proceeded so far therein .. as to get process of rebellion against me, for want of my answer, tho' I acquainted your Excellency by my last letter, that my answer was sworn to, and would before that time have been filed, if your Excellency would have done equal justice to me, by appearing to my suit against you ..." etc. New York : Printed and sold by John Peter Zenger etc. 1733. Endorsed as preceding. 11 pp. (numbered 53-63).
441. iii., iv. Copies of the New York Journal, Nos. 6 and 7, Dec. 10 and 17, 1733. No. 7 quotes affidavits that there was no scarcity in Canada or Cape Breton, and that M. Laron was busy making a chart coming into New York etc. Gives names of the five Councillors "usually summoned to Council" by the Governor, the rest being "inofficious gentlemen." New York : Printed and sold by John Peter Zenger : By whom subscriptions for this paper are taken at three shillings per quarter ; and advertisements at three shillings the first week, and one shilling every week after. Endorsed as preceding. 4 pp. each. [C.O. 5, 1056. ff. 188-189, 190-192, 193 v.-201 v., 203-204 v., 205 v.]