Journals of the Board of Trade and Plantations: Volume 1, April 1704 - January 1709. Originally published by His Majesty's Stationery Office, London, 1920.
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Journal, May 1707
May 2. Present:—Earl of Stamford, Lord Herbert of Cherbury, Sir Philip Meadows, Mr. Pulteney, Mr. Monckton.
Mr. Heysham and other merchants about repeal of the Paper Act.
Good effects thereof.
Colonel Cleland voted the author of the late disorders.
The Assembly desire he may be suspended.
Minutes of Assembly relating thereunto.
The merchants, if Cleland be not removed from the Council, &c., will withdraw their effects off the island.
Mr. Heysham and his brother [vide supra, fo. 145], Major Lillington, Mr. Chilton, Mr. Guy Ball, and several other gentlemen concerned in Barbadoes attending, acquainted their lordships that by the last packet from that island they had advice that, since the publication of her Majesty's repeal of the Act for establishing a credit and the calling of a new Assembly, they were in great hopes that the island would be re-settled in peace and quiet; for the Assembly had unanimously agreed to several particulars tending thereunto, particularly that they had agreed to consider of the proper means to remedy the inconveniencies arising by the currency of the paper bills, and had voted Colonel Cleland the original author and chief promoter of the late disorders of that island, and had therefore desired the President that the said Cleland might be suspended from the Councill till her Majesty's pleasure be known. In proof of all which the said gentlemen referr'd their lordships to several pages of the minutes of Assembly, which were read. They further added that, unless the said Cleland were removed from the Councill and all other places of power, they did not expect a thorough settlement of peace and quiet there; and thereupon they would withdraw their effects from that island, unless that were done.
Mr. Ball to take copies of papers relating to Mr. Skene.
Then Mr. Ball desired of their lordships that he might take a copy of his own affidavit formerly made against Mr. Skene, secretary of Barbadoes [fo. 20, 149], and of Mr. Skene's tryal in Barbadoes, in order to the justification of his reputation, which he thought very much injured by the said tryal; whereupon their lordships ordered that he might take copies of the said papers accordingly.
Tuesdays and Fridays appointed for hearing merchants.
These gentlemen then were acquainted that the Board did intend to appoint two days in the week for the hearing of all merchants and others who might have business with their lordships [fo. 137], and were asked whether they had any objections to Tuesdays and Fridays in the morning; whereupon they said that they had none, but readily concurr'd therewith. Ordered that notice hereof be given to all the merchants trading to America accordingly.
May 5. Present:—Earl of Stamford, Lord Dartmouth, Lord Herbert of Cherbury, Sir Philip Meadows, Mr. Pulteney, Mr. Monckton.
Letter from Mr. Burchet about Captain Fane.
A letter from Mr. Burchet, in answer to one writ him the 29th of the last month [fo. 135], relating to the irregularities committed by Captain Fane, commander of her Majesty's ship the Lowstaff at New York [M. fo. 269], was read; and ordered that a copy thereof be sent to the Lord Cornbury for his information.
Circular letters about the new commission of this Board and Act for the Union.
Their lordships gave directions for preparing the draughts of circular letters to all her Majesty's Governors in America [fo. 147, 151], signifying her Majesty's new commission to this Board, and transmitting the Act past the last session of Parliament for an union of the kingdoms of England and Scotland.
Mr. Perry against an Act about the measure of ships.
To put his objections in writing.
Mr. Perry attending, and desiring that an Act past in Virginia [fo. 124]. (inserted in the book of laws, fo. 157), intituled An Act for raising a publick revenue for the better support of the government for her Majesty's dominion of Virginia, and for ascertaining the salary of the Councill, may not receive her Majesty's royal confirmation, by reason of a clause therein contained for measuring of ships &c. He was ordered to put his objections thereunto in writing, which he promised to do accordingly [fo. 157].
Letter from the Governor.
A letter from Colonel Handasyd, Governor of Jamaica, dated
the 8th of March last, was read, and the papers therein referr'd
to laid before the Board, [and] are as follows, viz.:—
Papers of publick proceedings.
Minutes of Councill in Assembly from the 29th of January to the 8th of February, 1706.
Minutes of Assembly from the 7th of January to the 5th of February, 1706/7.
A Bill intituled an Act for regulating fees.
Seven Acts past at Jamaica the 6th and 8th of February, 1706/7.
Paragraph C to be communicated to Captain Gardner.
E and M to be sent to the Earl of Sunderland.
Jamaica merchants summon'd.
Whereupon ordered that paragraph C of the said letter be communicated to Captain Gardner [fo. 144], and that he have notice to attend the Board to-morrow morning to that end. And further ordered that paragraphs E and M of the same letter, relating to the state of the galleons [fo. 147] be sent to the Earl of Sunderland. And upon consideration of paragraph K relating to the dullness of the trade with the Spaniards, ordered that the Jamaica merchants [fo. 152] be acquainted that the Board desire to speak with some of them on Fryday morning next.
Letter from Colonel Hamilton.
Representation to be prepared.
A letter from Colonel Hamilton, Lieutenant Governor of Nevis, dated the 21st of February last, was read, and directions given for preparing a representation thereupon [fo. 144].
May 6. Present:—Earl of Stamford, Lord Dartmouth, Lord Herbert of Cherbury, Sir Philip Meadows, Mr. Pulteney, Mr. Monckton.
Draught of a report for three new counsellors under consideration.
Colonel Jory, &c. summon'd.
Upon consideration of the draught of a report for the confirmation of three counsellors for the island of Nevis [fo. 143, 150], as directed yesterday upon the reading of the letter from Colonel Hamilton, Lieutenant Governor of that island; ordered that Colonel Jory and Mr. Richard Merryweather [fo. 150] have notice to attend the Board on Fryday morning next.
Letter to the Earl of Sunderland about want of soldiers, &c.
A letter to the Earl of Sunderland, relating to the want of soldiers and cartridge paper for the island of Nevis, was signed.
Captain Gardner about recruits and the hardships Colonel Handasyd's regiment lies under.
The same before my Lord Treasurer and Mr. St. John.
Captain Gardner attending [fo. 143], the paragraph C of Colonel Handasyd's letter, as agreed at the last meeting, was read to him; whereupon he said that what related to the pay of the officers and soldiers had been laid before my Lord Treasurer, and by his lordship referr'd to the Comptrollers of the Accounts of the Army, and that their report was now before his lordship for his determination thereupon; and as for having recruits sent by draughts out of the regiments here, he had proposed the same to Mr. St. John, Secretary at War, who acquainted him that it was not to be done, but that the officers who were sent over from Jamaica must endeavour to raise the said recruits as well as they could. Whereupon they were gone into several counties to endeavour to raise recruits there if possible [fo. 202]. And he promised to give their lordships an account from time to time of their proceedings therein.
Letter to the Earl of Sunderland. thereupon.
Ordered that a letter be prepared to lay the matter before the Earl of Sunderland [fo. 147].
Mr. Penn about his surrender.
Mr. Penn attending, and desiring their lordships to take into consideration the reference from my Lord High Treasurer mentioned in the minutes of the 18th of March last [fo. 109, 155], the said reference was read, as also another letter from Mr. Lowndes of the 7th of the last month, referring to the Board an account of goods imported from Pennsylvania from Christmas, 1698, to Christmas, 1705, with the duties thereon. But Mr. Penn observing that there were other papers wanting which he thought had also been referred, be acquainted their lordships he would endeavour to procure the same.
Hearing appointed for the complainants against, and those in behalf of, Colonel Sharp and Mr. Cox.
Mr. Weston attending in behalf of Colonel Cleland, Colonel Colleton, Colonel Holder, Mr. Sandford and Mr. Dorn [fo. 139], whose petitions against the proceedings of Colonel Sharp and Mr. Cox are referr'd to this Board, and desiring to be heard by counsel to the allegations of their petition; and Mr. Cox, brother to Mr. Cox of Barbadoes, and Mrs. Sharpe attending at the same time, and declaring that they could be ready by Tuesday the 20th instant; their lordships appointed that day for hearing those matters [fo. 167, 181].
May 7. Present:—Earl of Stamford, Lord Dartmouth, Lord Herbert of Cherbury, Sir Philip Meadows, Mr. Pulteney, Mr. Monckton.
Letter from the Governor.
A letter from the Lord Cornbury, Governor of New Jersey, dated the 18th of November last, was read, and an answer immediatly drawn up thereunto.
Letter from the Prize Office for persons' names to be put into a commission to enquire about embezlement of prizes.
A list given accordingly.
A letter from the Commissioners for Prizes desiring a list of persons' names inhabiting in her Majesty's several plantations in the West Indies, to be incerted in a commission for inquiring into imbezlements of prizes there &c. was read; and thereupon ordered that the names of the counsellors in her Majesty's island of Jamaica, the Leeward Islands, Barbadoes and Bermuda, be given them accordingly.
Letter to the Earl of Sunderland with extract of Colonel Handasyd's letter about recruits &c.
A letter to the Earl of Sunderland, inclosing an extract of Colonel Handasyd's letter [fo. 143, 145] relating to the hardships his regiment lies under for want of their pay, and to his want of recruits, as directed in yesterday's minutes, was signed.
Representation proposing a new counsellor.
Letter to the Earl of Sunderland therewith.
A representation proposing Samuel Beresford, Rector of St. Michael's parish in Barbadoes [fo. 265], to be a member of her Majesty's Councill in that island, in the room of James Colleton, esquire, deceased, together with a letter inclosing the same to the Earl of Sunderland, were signed.
Circular letters about the new commission of this Board, &c.
The circular letters to the Governors of New Hampshire, the Massachusets Bay, New York, New Jersey, Maryland and Virginia, as also those to the governments of Rhode Island, Connecticut and to the proprietors of Pennsylvania and Carolina [fo. 142, 151], mentioned in the minutes of the 5th instant, were signed.
General's report upon an Act relating to Mr. Freeman, &c.
The same to be sent to Colonel Park.
Mr. Attorney General's report upon an Act past at Antego the 24th of December, 1700, intituled An Act to inable Robert Freeman and Mary his wife to sell three parcells of land lying in several places in this island [fo. 71], containing in the whole about one hundred and fifty acres, for the further settlement of this island, was read [Leeward Islands, E. fo. 9], and thereupon ordered that a copy of the said report be sent to Colonel Park for his observations and answer, according to what is proposed by the said report.
May 8. Present:—Earl of Stamford, Lord Dartmouth, Lord Herbert of Cherbury, Sir Philip Meadows, Mr. Pulteney, Mr. Monckton.
Memorial from Sir Thomas Lawrence praying his papers and the Act about ordinary licences be referr'd to Mr. Attorney General.
Letter to Mr. Attorney thereupon.
A memorial from Sir Thomas Lawrence, desiring that all his transactions at this Board in relation to an Act of Maryland about ordinary licences be sent to Mr. Attorney General for his consideration [fo. 96. 336], together with the said Act now before him, was read; and thereupon ordered that copies of the said papers be sent him accordingly.
Memorial from Mr. Nodin praying the hearing about Mr. Jones may be put off.
Mr. Nodin and Jones to attend on Wednesday next to fix a day of hearing.
A memorial from Mr. Nodin, signifying that by reason of his indisposition he could not attend their lordships [fo. 131], and praying that the hearing of the complaints against Mr. Jones may be put off for a month longer, in hopes that Mr. Holland, by whom several papers are transmitted by the Governor, may arrive in that time, was read; and Mr. Bradshaw, sollicitor for the said Jones, attending at the same time, their lordships ordered that the said Mr. Nodin, or somebody else in his behalf, and Mr. Jones do attend on Wednesday next [fo. 159], in order to the fixing a certain day for the hearing of the said complaints.
Complaints against Mr. Skene considered.
Their lordships took into consideration the several papers in the office relating to the complaints against Mr. Skene, secretary of Barbadoes [fo. 140; M. fo. 227], and made a progress therein, and resolved to proceed further in the same at the first opportunity.
May 9. Present:—Earl of Stanford, Lord Dartmouth, Lord Herbert of Cherbury, Sir Philip Meadows, Mr. Pulteney.
Colonel Jory, &c. at the Board about characters of three new counsellors. Representation thereupon and letter to the Earl of Sunderland.
Colonel Jory and Mr. Merryweather attending [fo. 144], and being asked what they knew concerning the characters of Mr. Thomas Belman, Mr. Lawrence Brodbelt and Mr. James Milliken, admitted into the Council of Nevis by Colonel Hamilton, Lieutenant Governor of that island, they said that they were men of good estates and reputation in that island; whereupon a representation, as agreed the 6th instant [fo. 265], was signed, together with a letter inclosing the same to the Earl of Sunderland.
Letter from the Earl of Sunderland for sending the Union Act to the several Governors.
A letter from the Earl of Sunderland, directing this Board to transmit copies of the Act for an union of the kingdoms of England and Scotland [fo. 142, 151], to the several Governors of her Majesty's plantations in America &c. was read.
Petition from Mr. Baron about money due to him from the inhabitants.
Copy thereof to be sent to Colonel Bennet.
A petition from Mr. Baron, late minister at Bermuda [fo. 153], setting forth that there is an arrear of seventy-one pounds one shilling and eight pence due to him from the inhabitants of that island, and praying that he may be paid the same, was read. Whereupon ordered that a copy of the said petition and papers annexed be sent to Colonel Bennet for his particular answer thereunto.
Circular letters to the islands with the Union Act, &c.
The circular letters to the Governors of Jamaica, Barbadoes, the Leeward Islands and Bermuda, transmitting the Act for an union between the kingdoms of England and Scotland, as mentioned in the minutes of the 5th instant [fo. 142, 150], were signed.
Representation proposing a new counsellor.
A representation proposing Peter Sonmans, esquire, to be one of the members of her Majesty's Councill in New Jersey, in the room of Mr. Jennings, who has desired leave to resign his place in the said Councill, together with a letter to the Earl of Sunderland inclosing the same, was signed.
Letter from the Earl of Sunderland returning additional instructions to prevent disputes between Presidents and counsellors.
A letter from the Earl of Sunderland, returning her Majesty's additional instructions to the several Governors in America [fo. 132, 154], for preventing disputes that may arise between the Presidents and counsellors in the respective plantations upon the death or absence of any the said Governors, was read, and directions given him for sending the instructions for the continent to Colonel Hunter, Governor of Virginia, in order to his forwarding the same, and ordered that those for the islands be sent in the letters signed this day.
Merchants about dulness of trade with the Spaniards.
Sir Bartholomew Gracedieu and other Jamaica merchants attending [fo. 143, and infra] according to appointment, paragraph K. of Colonel Handasyd's letter of the 8th of March last, relating to the dulness of trade there with the Spanish West Indies, was read; whereupon they said that they were sensible that trade was not, nor indeed could it be, carryed on so advantagiously as it might, because of the difficulty of obtaining proper convoys at proper seasons, which was the only thing during this war that could inable them to manage that trade to advantage; that they had several times made application to the Prince's Councill for such convoys, but had not met with success, and that the merchants were thereby very much discouraged.
May 12. Present:—Earl of Stamford, Lord Herbert of Cherbury, Mr. Pulteney, Mr. Monckton.
Letters to the merchants about convoys.
Upon consideration of what was said by the Jamaica merchants at the last meeting [v. supra], order'd that a letter be writ to Sir Gilbert Heathcote, Sir Bartholomew Gracedieu and others trading to that island, desiring to know in writing what time they would have a convoy for that island [fo. 162], and how many ships that convoy ought to consist of.
Draught of a letter to the Bishop of London with the petition of Mr. Baron.
Ordered that the draught of a letter to the Bishop of London, inclosing the petition from Mr. Baron, late minister at Bermuda [fo. 150, 157], mentioned in the last minutes, relating to some dues claimed by the said Baron from the inhabitants of that island, be prepared for to-morrow morning.
Copy of an Order of Council for repealing an Act relating to bounds of lands, &c.
Copy of an Order of Councill of the 17th of Aprill last, upon a representation of the 27th of March foregoing [fo. 115, 161] for repealing An Act past in Virginia concerning the granting, seating and planting, and for settling the titles and bounds of lands, and for preventing unlawfull shooting and ranging thereupon, approving the said representation, was read.
Copy of an Order of Councill for readmitting Mr. Squire to practise the law.
Copy of a second Order of Councill of the 17th of Aprill last, upon a representation of the 3rd ditto [fo. 122], relating to Mr. Squires being readmitted to practice the law in Barbadoes, approving the same, was read.
Copy of an Order of Council on a representation for turning Mr. Pogson out of the Councill of St. Christopher's.
Copy of a third Order of Council of the 17th of April last, upon a representation of the 3rd ditto [fo. 122], for turning out Mr. Pogson (for the murder of Colonel Johnson) from his place in the Councill in St. Christopher's and from all other publick imployments, approving the same, was read.
Copy of an Order of Council on a representation with Colonel Hunter's commission, approving the same.
Copy of a fourth Order of Councill of the 17th of April last, upon a representation of the 16th ditto [fo. 132], with the draught of a commission to Colonel Hunter to be her Majesty's Lieutenant and Governor General of Virginia, approving the said representation, was read.
Copy of an order approving Colonel Hunter's instructions.
Copy of a fifth Order of Councill of the 29th of April last, upon a representation of the 22nd ditto [fo. 133], with the draughts of instructions to Colonel Hunter for the government of Virginia, approving the same, was read.
Copy of an Order of Council approving the additional instructions about devolution of government.
Copy of a sixth Order of Councill of the 29th of April last, upon a representation of the 22nd ditto [fo. 133, 151, 155], with the additional instructions to her Majesty's Governors in America, for preventing disputes that may happen between the Presidents and counsellors in the plantations &c., approving the same, was read.
Order of Councill with account of goods exported from London to East India.
An Order of Councill of the 2nd instant, transmitting to this Board an account of goods exported from the Port of London by the managers of the English company trading into the East Indies between Aprill, 1706, and Aprill, 1707, was read.
Letter from Colonel Hunter about his having received the packets for the Governors of Maryland and New York.
A letter from Colonel Hunter, Governor of Virginia, dated at Portsmouth the 9th instant, signifying his having received the packets for the Governors of Maryland and New York, sent him the 8th instant, was read.
Circular letters to the Governors on the continent with additional instructions about devolution of government.
Circular letters to the Governors of the Massachusets Bay, New Hampshire, New York, New Jersey and Maryland, inclosing her Majesty's additional instructions relating to the devolution of the government [fo. 154], as directed the 9th instant, were signed.
Account of imports and exports.
An account of the imports and exports to and from Pennsylvania between the 25th of December, 1698, and December, 1704, was read.
Letter to Mr. Penn with queries relating to his surrender.
Their lordships then taking into consideration the papers before them relating to Mr. Penn's proposals for a surrender of his government to her Majesty [fo. 145, 290], ordered that a letter be writ to him with the following queries for his particular answer thereunto in writing, viz.:—
1. The charges he hath been at on account of the settlement of Pennsylvania ?
2. What are the profits he hath made thereof, computing the value of the property remaining to him ?
3. How the said charges and profits have arisen?
4. What advantages the Crown will receive from that colony by purchasing the propriety, more than it now hath, and how the same may arise ?
5. What the annual charge of that government ?
6. What revenue is settled for the support thereof ? The yearly value of such revenue ? And for what time granted ?
7. The terms of purchase, that is the quantum demanded, and times of payment ?
8. Lastly, what priviledges and immunities he has granted by charter or otherwise to the city of Philadelphia or other towns or corporations in the province of Pennsylvania.
Letter from Colonel Bennet.
Remonstrance referr'd to therein relating to loading and unloading of ships at St. George's to be sent Mr. Lowndes for opinion of Commissioners of the Customes there on and
upon Acts of Maryland and Virginia about ports.
A letter from Colonel Bennet, Governor of Bermuda, to the secretary, dated the 19th of October, 1705, relating to a paragraph in his instructions (Bermuda B. fo. 288) for loading and unloading of ships at St. George's or Castle Harbour in those islands, was read; and directions given for sending a copy of the said letter, together with the remonstrance from the Assembly referr'd to therein, to Mr. Lowndes, for the opinion of the Commissioners of the Customes thereupon. And further ordered that Mr. Lowndes be desired to move my Lord Treasurer that their lordships may have the opinion of the Commissioners of the Customes upon the Acts relating to ports in Virginia and Maryland, which were sent him the 4th and 20th of December last [K. fo. 428; fo. 23, 31].
May 13. Present:—Earl of Stamford, Lord Dartmouth, Lord Herbert of Cherbury, Sir Philip Meadows, Mr. Pulteney, Mr. Monckton.
Letter to the Bishop of London about Mr. Baron's claim of dues.
A letter to the Bishop of London, inclosing the memorial from Mr. Baron [fo. 153, 161], as directed the last meeting, was signed.
Memorial from the merchants against an Act about measuring of ships.
Letter to Mr. Lowndes with copy of the foregoing memorial.
Mr. Perry and several Virginia merchants attending, presented to their lordships a memorial, which was read, setting forth that by a clause in an Act past in Virginia in October, 1706 [fo. 142, 158], intituled An Act for raising a publick revenue for the better support of the government &c., all ships were to be measured by a certain rule therein laid down, which was highly to the disadvantage of all owners of ships, for that thereby they are obliged to pay double the tonnage they can load in that colony; that measurement being a fourth part more than the cubical measurement, by which all ships are built; and they added in discourse that they were willing to pay for their quantity of tonnage that they import or export out of that colony; and therefore they desired their lordships to represent this matter so that the said Act may not receive her Majesty's royal confirmation; whereupon ordered that a copy of the said memorial, as also of the abovementioned clause [fo. 332] be sent to Mr. Lowndes for the opinion of the Commissioners of the Customes thereupon.
Laws under consideration.
Their lordships then took into consideration the laws past in Virginia in 1706 that have been lately before this Board, and read five of the said laws [fo. 124, 157, and infra].
May 14. Present:—Earl of Stamford, Lord Dartmouth, Lord Herbert of Cherbury, Sir Philip Meadows, Mr. Pulteney, Mr. Monckton.
Laws under consideration.
Colonel Blakiston to give his observations on the Act about marryages.
Their lordships again took into consideration the Acts past in Virginia in 1706 [supra and fo. 160], and read two of the said Acts; and Colonel Blakiston attending at the same time the Act concerning marryages was communicated to him for his observations thereupon, which he promised to bring their lordships in writing to-morrow morning [fo. 160].
Mr. Nodin and Mr. Jones about a day of hearing.
Memorial from Mr. Jones for a short day of hearing.
Day appointed for the said hearing.
Mr. Nodin and Mr. Jones attending, as directed the 8th instant [fo. 149], in order to the fixing a day for hearing of the complaints exhibited against the said Jones by the Governor, Councill and Assembly of Bermuda, Mr. Nodin desired some further time till Mr. Holland's arrival, who had several papers with him relating to that matter. Whereupon Mr. Jones presented to their lordships a memorial setting forth his having been three months in England, praying a short day might be appointed, for that he is at great expence in maintaining witnesses, which was read; whereupon their lordships agreed, by the consent of both parties, that Monday, the 9th of June next, should be the day for hearing the said complaints.
Papers to be lent to Mr. Nodin to make out Mr. Jones's charge.
Mr. Nodin further desired that all the papers transmitted to the Board by Colonel Bennet touching the said complaints might be lent to him, to inable him to deliver to Mr. Jones his charge and to make good the same [fo. 162]; ordered that the said papers be delivered to him, upon his receipt to return the same.
Queen's letter of leave for Sir B. Granville's return to England.
Copy of her Majesty's letter of leave to Sir Beville Granville, Governor of Barbadoes, to return to England, for recovery of his health, being received from the Earl of Sunderland's office, was read.
May 15. Present:—Earl of Stamford, Lord Dartmouth, Lord Herbert of Cherbury, Sir Philip Meadows, Mr. Pulteney. Mr. Monckton.
Laws under consideration.
Two of them sent Mr. Sollicitor General for his opinion.
Their lordships again proceeded in the consideration of the Virginia laws [fo. 158, 166], mentioned in yesterday's minutes, and read eleven of the said laws; and ordered that the Act for establishing the general court and for regulating and settling the proceedings therein, and the Act for naturalization, be sent to Mr. Sollicitor General for his opinion thereupon in point of law.
Colonel Blakiston's observations upon the Act about marryages.
The Act to be approv'd.
Colonel Blakiston presented to their lordships a memorial containing his observations upon the Virginia Act concerning marryages [fo. 159], which was read; whereupon their lordships agreed that the said Act was fit for her Majesty's confirmation.
Colonel Nicholson at the Board.
Act about titles and bounds of land repealed.
Colonel Nicholson to draw up another.
Colonel Nicholson to make his observations on several of the laws.
Colonel Nicholson attending, their lordships acquainted him that her Majesty had repealed the Act concerning the granting, seating and planting, and for settling the titles and bounds of lands &c. [fo. 153, 288], and desired him to consider the said Act, and to draw up the draught of a Bill more conformable to her Majesty's instructions than this Act is, which he promised to do accordingly. And Colonel Nicholson acquainting the Board that there were several other of the Virginia laws which he thought incroached on her Majesty's royal prerogative, and were otherways unfit to receive her Majesty's approbation; he was desired to consider the said laws, and to give their lordships his observations thereupon, which he also promised to do.
May 16. Present:—Earl of Stamford, Lord Dartmouth, Lord Herbert of Cherbury, Sir Philip Meadows, Mr. Pulteney, Mr. Monckton.
Letter from Bishop of London.
A letter from the Lord Bishop of London, in answer to one writ him the 13th instant [fo. 157, 183], upon Mr. Baron's petition for dues claimed by him in Bermuda, was read; signifying that he was surprized at Mr. Baron's application, and that, if their lordships would send the said Baron to him, he would give him an answer. Whereupon ordered that Mr. Baron have notice, the next time he shall come to the office, to attend upon his lordship accordingly.
Letter from Colonel Cleland.
A letter from Colonel Cleland, dated in Barbadoes the 10th of February last, justifying his own proceedings, and complaining of those of Colonel Sharp, President of that island, was read.
Letter to Mr. Nodin.
Ordered that a letter be writ to Mr. Nodin, signfying that their lordships expect that he should give a full charge to Mr. Jones by Wednesday next, and that he return to this office the same day the papers that have been lent him [fo. 159].
Merchants about convoys.
Sir Gilbert Heathcote, Sir Bartholomew Gracedieu and other Jamaica merchants attending [fo. 153], presented to their lordships a memorial, setting forth that the proper time for the sailing of their fleets for Jamaica is every year at Christmas, with a convoy of four or five fourth-rate men-of-war; that the two first years of her Majesty's reign that trade was managed to great advantage, by reason of the convoy's sailing at that time; but the two following years, not obtaining their convoy till Aprill or May, they lost above half of their fleet in their return home; which memorial was read. And they added in discourse, that that only reason for the dulness of the trade to Jamaica, and from thence to the Spanish coast, was the ill timing of the convoys, besides the damage done to the goods by their lying 5 or 6 months sometimes on board before they sail from England; that they had made frequent applications to the Admiralty for such convoys, and had received from thence as frequent assurances that the said convoys should be ready at certain fixed days, which however has not been comply'd with since the two first years of her Majesty's reign, to their great loss in particular, and to the prejudice of England, by the not gaining that advantage which would have accrued by that trade regularly carryed on. And they instanced that in the third year of her Majesty's reign the convoys were ordered for the 15th of November, but did not sail from hence till the 19th of January; then they went to Ireland, where they stayed till the 17th of March; that in the fourth year of her Majesty's reign they were ordered to said in December, but did not go from England till May, by which delays they were put to great charges in the wages of the seamen, and suffered great loss by their goods being damnifyed; that the last year the delays were the same, and they are in fear that their losses will not be less; that if the convoys had sail'd last year in due time, there would have been imported into England two hundred thousand pounds, at least, in pieces of eight, more than there is at present; that these disappointments have very much discouraged them. After these gentlemen were gone, their lordships gave directions for preparing a letter to the Earl of Sunderland hereupon [fo. 166].
Their lordships then took into consideration the several papers in the office relating to the coin in the plantations, and ordered that a state of that matter be drawn up and laid before their lordships.
May 19. Present:—Earl of Stamford, Lord Dartmouth, Lord Herbert of Cherbury, Sir Philip Meadows, Mr. Pulteney, Mr. Monckton.
Letter from the Earl of Sunderland appointing Mr. Popple, junr., secretary.
Mr. Popple admitted secretary accordingly.
A letter from the Earl of Sunderland of the 17th instant, signifying that Mr. Popple, secretary to this Board, having by reason of his age and indisposition, desired her Majesty's leave to resign his said place of secretary to his son; her Majesty, in consideration of his faithful services, had commanded his lordship to signify her pleasure that the Board do admit his said son William Popple, Junior, into the place of secretary, was read; and the said William Popple, Junior, was admitted secretary by their lordships accordingly.
Letter from Colonel Hunter in answer to one writ him inclosing additional instructions.
A letter from Colonel Hunter, dated at Portsmouth the 14th instant, acknowledging the receipt of the packets sent him the 12th ditto, inclosing the additional instruction to her Majesty's Governors on the continent, relating to the devolution of government in case of the death or absence of any of the said Governors, was read.
Letter to the Earl of Sunderland.
A letter to the Earl of Sunderland relating to convoys for Jamaica [fo. 164], as directed at the last meeting, was signed.
Representation of 26th April about convoys.
A representation of the 26th of April, 1706, relating to convoys for Virginia and Maryland, and to the tobacco trade [fo. 79 &c.], was read; and thereupon ordered that Mr. Perry, Mr. Linton and other Virginia merchants have notice to attend the Board on Fryday next.
Memorial from Mr. Jones praying the perusal of papers.
A memorial from Mr. Jones, praying that he may have the perusal of what papers are in this office touching the complaints against him by the Governor, Council and Assembly of Bermuda [fo. 159, 181], was read; whereupon ordered that Mr. Jones have the perusal of any papers relating to the said complaints, the Governor's letters and affidavits excepted.
Laws under consideration.
Their lordships then proceeded in the consideration of the Virginia laws [fo. 160, 181], and read two of the said laws.
May 20. Present:—Earl of Stamford, Lord Dartmouth, Lord Herbert of Cherbury, Sir Philip Meadows, Mr. Pulteney, Mr. Monckton.
Hearing upon the petition of Colonel Cleland, &c. against Colonel Sharpe.
Sir Edward Northey and Mr. Letchmere counsel for the petitioners and Sir John Hawles and Mr. Mead for the defendant.
This being the day appointed for hearing council upon the petition
of Colonel Cleland, Colonel Colleton and Colonel Holder to her
Majesty [fo. 146, 188], complaining against the proceedings of
Colonel Sharp, President of the Council of Barbadoes; and Sir Edward
Northey and Mr. Letchmere attending for the petitioners, and
Sir John Hawles and Mr. Mead for the defendant, her Majesty's
Order in Council of the 27th of March last, referring to the Board
the abovesaid petition, together with the petition itself, were read.
The chief articles of the said petition are as follows:—
The complainants say that Colonel Sharp hath exceeded the powers granted him by issuing commissions without advice of Council.
1. That the President hath exceeded the powers granted to him by her Majesty's commission to Sir Beville Granville, in issuing commissions as Commander-in-Chief without the advice and consent of the Councill.
That he order'd several powers deligated to him to be published in the churches.
2. That the President ordered the minutes of Councill of the 4th of September last, containing 14 articles, whereby several powers were deligated to him, to be published in the churches.
Ships order'd to cruize without advice.
3. That the President hath never consulted the Council in ordering the ships of war to cruize.
He receiv'd addresses sign'd by ignorant people. Money collected for dissolving the Assembly.
4. That the President hath received addresses directed to himself as Commander-in-Chief; that the said addresses were carryed about and signed by ignorant people, servants and others, and that there were collections of money to procure the dissolution of the Assembly.
Some counsellors threat'ned with suspension without cause. Business done without a quorum.
5. That the President hath threatened some of the Council with suspension, contrary to her Majesty's commission and instructions, and even without a cause; that he has transacted business with only two of the members, whereas the quorum is five.
That he dissolv'd the Assembly by his own authority against the petitioners' protest.
6. That the President hath dissolved the Assembly by his own authority, and without the consent of the Councill, notwithstanding the petitioners protested against it.
He call'd a new Assembly, issu'd writs in his own name, &c.
7. That he did thereupon call a new Assembly, and issued writs in his own name, without the consent or privity of any of the Councill, and directed those writs contrary to the law of that island.
Depositions order'd exparte.
8. That he hath ordered depositions to be taken exparte.
That he having received letters from England about Paper Act, &c., did not communicate the same to the Councill.
9. That the said President having received letters of moment from the Lords Commissioners of Trade and Plantations concerning the Paper Act, and concerning the Indians of St. Vincent's, did never communicate the same to the Council.
That he hath countenanced Mr. Cox in an open violation of the laws, &c.
10. That the said President hath countenanced Samuel Cox, esquire, Chief Justice of a court of oyer and terminer, in an open and manifest violation of the laws and liberties of the people.
The counsel for the petitioners offer to prove the 6th and 7th articles only, the others being but instances of the President's acting contrary to the powers vested in him.
After the reading the said petition, the counsel for the petitioners said that if they proved the 6th and 7th articles relating to the President's dissolving the old and calling a new Assembly, and that that was done contrary to the powers vested in him as President of the Council, by her Majesty's commission and instructions (which was the main of the complaint) they should not need to trouble their lordships with any proof to the other articles, they being only set down as further instances of the President's acting contrary to the powers vested in him.
Papers relating thereunto.
In proof of which two articles they offered a minute of the Council of the 24th of December last, whereby it appear'd that the President, by the advice of two of the Councill only, came to a resolution to dissolve the Assembly and to issue writs for the calling a new one, which minute was read.
They further produced a copy of the writ directed to Colonel John Holder, in the usual form, for electing a member of Assembly for the parish of St. Joseph's, which was also read.
The old Assembly dissolved, and a new one called, by his own authority, contrary to a clause in the commission.
Representation from the petitioners disclaiming Sharp's proceedings.
And their protest.
That Sharp could not act without consent of a majority of Council.
And that the old Assembly was dissolved, and a new one called, by the President's own authority, contrary to the opinion of the majority of the Councill, and contrary to that clause of Sir Beville Granville's commission (Barbadoes C. fo. 41), directing that the calling of Assemblies be by the advice and consent of the Councill. They produced a representation from Colonel Cleland, Colonel Colleton and Colonel Holder, disclaiming the powers exercised by the President and granted to him by the 14 articles in the foresaid minutes of Councill of the 4th of September last; as also a protest of the said three counsellors and of Colonel Mills against the President's dissolving the Assembly, as he had declared he would do in the abovesaid minute of the 24th of December, which were read; from whence they inferred, that the President with the advice of two of the Councill could not act contrary to the opinion of four, which was the majority.
Dissolving the old and calling a new Assembly contrary to a clause in the commission to Sir Beville Granville.
A clause in Sir B. Granville's instructions.
And that the said dissolution and calling of a new Assembly was contrary to any powers vested in the said President. They produced a clause in the commission to Sir Beville Granville (Barbadoes C. fo. 59), purporting "that if upon his death or absence there be no person upon the place commissionated by her Majesty to be Lieutenant Governor or Commander in Chief, that then the present Council do take upon them the administration of the government, and execute that commission and the several powers and authorities therein contained; and that the first counsellor then resident upon the island do preside in the said Council with such powers and preheminences as may be necessary in those circumstances for the due and orderly carrying on the publick service in the administration of the government as aforesaid." They also produced a clause in the instructions (Barbadoes C. fo. 190) purporting "that notwithstanding the above clause, it is her Majesty's pleasure that the Councill, in case of the death or absence of the Governor, do forbear to pass any Acts but what are immediatly necessary for the peace and welfare of Barbadoes, without her Majesty's particular order for that purpose."
The power of doing it being only in the Governor or Commander in Chief.
From whence they inferred that this power of dissolving and calling Assemblies was deligated to the Governor or Commander-inChief and that the President, who was only to preside in the Councill, could not take upon him to act as Commander-in-Chief; nor could the Councill vest in him a power not granted him by her Majesty's commission and instructions as aforesaid. And they insisted that the powers and preheminences vested in the President by the said clause in the commission, were only such powers and preheminences as are incident to the office of President and not otherwise.
That he has acted without authority.
unless it can be proved he was Commander in Chief.
If the President claimed the power to dissolve and call assemblies by virtue of the last proviso of the Act for ascertaining the continuance of the General Assembly of that island pass'd there in August last, which reserves to her Majesty's Governors or Commanders-in-Chief full power to adjourn, prorogue and dissolve all General Assemblies, as is declared in the foresaid minute of Councill of the 24th of December last; they said that it would then lie upon the defendent to prove that he was Commander-in-Chief (without which he could not claim any authority from the said Act), and till then they look'd upon it as fully proved to the Board that Colonel Sharp had acted in these particulars without authority.
For making out the other articles they desire further time.
As for the remaining articles, they said that, not being fully prepared to make proof thereof, they desired time to do it, if it was thought necessary; but as they thought they had sufficiently proved their chief allegation, that the President had exercised an authority no ways vested in him, and the other articles being only incidental to this, they were willing to rest it there and submit it to their lordships.
Counsel for the defendent own the matter of fact, and justify the President, he having power by the 14 articles deligated to him, which articles were agreed to by the petitioners.
Then the counsel on the other side own'd the matter of fact, that the President had dissolved the old Assembly and called a new one, and they insisted that he had right so to do. But in order to lay that matter fully before their lordships, they said that the 14 articles, complained of in the forementioned representation of Colonel Cleland, Colonel Colleton and Colonel Holder, were drawn up as necessary to be lodged in the President for the due and orderly administration of the government and agreed at a full Councill the 4th of September last, whilst Sir Bevill Granville was there, Colonel Cleland and Colonel Colleton being present, and again confirmed the 14th of the said month after the Governor's departure, Colonel Colleton and Colonel Holder being present, and a third time approved on the 1st of October, all the three petitioners being present.
An oath administred to the President as Commander in Chief, and
That on the 14th of September the Council administred to the President an oath as President and Commander-in-Chief, which they ought at that time to have objected to, if they had not thought that it was for her Majesty's service and the good of the island that the President should have those powers vested in him.
business done till the 14th of November, when the petitioners absented.
Reason of their absence.
That from this time they went on in doing business till the 14th of November, when the petitioners began to absent themselves, that the President might not have an opportunity (for want of five, which is the quorum) of transacting any thing in Councill, in relation to the repealing of the Paper Act, in which they, and particularly Colonel Holder, were so much concerned.
They refused to attend though summon'd, as appears by affidavits.
That the President frequently summoned them, but they refused to come, pretending they were sick, though at the same time they were seen in taverns and in the town where and when the Council were sitting, and, for anything that appear'd, in perfect health. In proof of which they produced the affidavits of Thomas Affleck, William Grant and William Gordon, which were read.
They made representations out of Council and protests against the President's proceedings.
That during their absenting themselves they made representations out of Council to the President, and protests against his proceedings, but never came to the Council, as their duty and oath required, to give him their advice.
The petitioners consenting to the articles of power deligated to him, out of respect only (against their private opinions) was contrary to their oaths as counsellors, and they contradict themselves.
The counsell for the President further took notice that the petitioners in their foresaid representation to the President say, they only consented to the articles above-mentioned out of respect to him, contrary to their private opinions, which, the counsel for the President observed, was an extraordinary complement, contrary to their oaths as counsellors. Besides that, in one place of the said representation, the petitioners say that though they had agreed to the said articles, yet, upon second thoughts, they had changed their minds; and then afterwards they say they agreed to those articles, contrary to their private opinions, which is a manifest contradiction in matter of fact.
By their absenting it was impossible to get a quorum, which made the President act with as many counsellors as would attend.
That by their absenting themselves as aforesaid, it was impossible for the President to get a quorum, as required by her Majesty's commission, and was therefore necessitated to act in that juncture with so many counsellors as would attend.
Proof that the President did not dissolve the Assembly by his own authority.
To prove that the President did not dissolve the Assembly by his own authority, and without the consent of the Councill, they produced a minute of the Council of the 24th of December last, which was read; by which it appears that the petitioners still absented themselves, though specially summoned; that addresses were that day brought to the President from all the parishes of the island, signed by near 2,000 of the principal inhabitants, complaining of the distressed condition of the island, by reason of the Paper Bills, and the management thereof by one single person without inspection or controll, and praying, as the only means to remedy the same and settle peace and quiet in the island, that there might be a general and free election of representatives to serve in Assembly; which being read, the President asked the advice of the two counsellors then present, who were of opinion that he, having been sworn Commander-in-Chief, had power, by the proviso of the fore-mentioned Act for ascertaining the continuance of the General Assembly, to dissolve the present Assembly; and her Majesty's Attorney General and council at law then present were of the same opinion. The President thereupon declared he would dissolve the same accordingly.
He took the advice of such counsellors as would attend.
The petitioners absented to hinder his doing business.
Colonel Cleland formerly sent over to complain of the like proceedings, which were disapproved by the Queen.
Upon which the counsel observed that the President did take the advice and consent of such counsellors as would attend their duty, and that the petitioners absenting themselves was meerly to hinder the President's taking this resolution by a quorum of the Councill. And they took notice that Colonel Cleland himself was sent over to England by Sir Beville Granville to complain of the like proceeding of several members of the Assembly, who at that time absented themselves from their house, whereby all publick business was then at a stand; which proceeding of those Assembly men was highly disapproved by her Majesty.
That the grievances in the addresses required present remedy.
That the grievances complained of in the aforesaid addresses were of such a nature as required an immediate remedy, and that none could be effectual but that proposed in the said addresses, viz.:—the dissolution of the Assembly and calling a new one; which would never have been done, had the President deferr'd it till these petitioners would have come to make a quorum of the Councill.
Amending the Paper Act, one reason why they protested against dissolving the Assembly.
That by the forementioned protest sent by the petitioners to the President (and which was produced and read at this Board by the complainants) it appears that the amending the Act concerning paper credit, was one of the reasons why they protested against the dissolution of the Assembly.
None of the old Assembly that were for the Paper Act rechosen.
Colonel Cleland assisted in swearing the new Assembly, and Holder a candidate at the new election.
And as a further proof that the Paper Act was the reason of the dissolution, and that the said dissolution was agreable to the general sense of the inhabitants, they said that none of the members of the old Assembly, who has been for the said Paper Act, were chosen again in the new Assembly. And they further observed that Colonel Cleland joyned with the rest of the Councill in swearing the new Assembly men, as appears by the minutes of the 21st of January, and that Colonel Holder, after he was turned out of the Council, stood as a candidate at the new election; which was a tacit approval of that dissolution.
The Queen's letter to the President, &c., directing the evils of the Paper Act to be remedyed, which the old Assembly would never have done
They likewise took notice that her Majesty's letter, directed to the President and Council or Commander-in-Chief, in relation to the Paper Act, directs him forthwith, upon the receipt thereof, to convene the Councill and Assembly, in order to remedy the inconveniences arisen by the said Paper Act; which letter from her Majesty was received by him on or before the 3rd of December, as appears by the information of Mr. Baron, acting as secretary, at the end of the minutes of Councill of the 24th of December, on which day he resolved to dissolve the Assembly, as also by the articles exhibited against the President by the petitioners; and that it was the general opinion of the inhabitants that the old Assembly would not remedy the said inconveniences does appear from the forementioned addresses, and from the choice of representatives that was made, as has been already observed.
That by the said letter the President was authorized to act as he did, and the absence of the complainants obliged him to proceed without 'em.
That it was plain, by the foresaid letter from her Majesty, directed to him as President and Commander-in-Chief, he was authorized to do what he has done; and that his doing of it without a full quorum of the Council, was because the petitioners themselves necessitated him to it, by their absence from the Council.
Clause in the commission a justification of his proceedings.
That the clause in the commission (which had been already read) directing him to preside in the Council, with such powers and preheminences as may be necessary in those circumstances &c., is a justification of his proceedings. For that the powers thereby granted him must necessarily imply more than barely presiding in the Council; and that the late Governor and the Council themselves understood it so, is plain, from their making and agreeing to the foresaid 14 articles, which were then thought necessary in those circumstances for the due and orderly administration of the government.
The President obliged to observe the 14 articles.
The Queen's letter made it necessary to call a new Assembly.
The counsel further observed, that it being necessary to make the said articles, it was necessary for the President to observe them; that her Majesty in her foresaid letter to the President having thought it necessary the Assembly should be convened, the circumstances of the island made it also necessary to call a new one. All which being considered, they did not doubt but their lordships would be of opinion that the President had done nothing contrary to the intent and meaning of her Majesty's commission and instructions considering the then circumstances of the island.
The granting commissions to militia officers and ordering ships to cruize was with the petitioners' consent in Council.
Though the counsel on the other side did not offer any proof to the other articles, yet, in order to show their lordships how unjustly the defendent had been charged, the first article affirming he had granted commissions to militia officers, and the third article that he had ordered ships to cruize, without advice and consent of the Councill, they produced the minutes of the 29th of October, 1706 (the three petitioners being all present), by which it appears that upon the President's acquainting them with the necessity of the ships cruizing and of filling some vacancies in the militia, they desired him to order the same from time to time, as he should think fit. All which they submitted to their lordships.
The hearing on the petition of Sandford and Dorn against Cox to be the 29th instant.
It being now too late to enter upon the petition of Mr. Sandford and Mr. Dorn [fo. 146] against the proceedings of Mr. Cox, Chief Justice of a court of oyer and terminer, their lordships, by consent of both sides, appointed Thursday the 29th instant [fo. 190] to hear the said petitioners accordingly.
May 21. Present:—Earl of Stamford, Lord Dartmouth, Sir Philip Meadows, Mr. Pulteney, Mr. Monckton.
Laws under consideration.
Their lordships again took into consideration the laws of Virginia [fo. 166], and read eight of the said laws.
Mr. Bradshaw about complainants against Jones.
Mr. Bradshaw attending, and desiring to see the original papers from whence the heads of the charge deliver'd to him this day by Mr. Noding against Mr. Jones was taken [fo. 166, 210], and thereupon being asked what use he could make thereof, he said it was only to know who were the complainants against the said Jones. Whereupon being called in he was acquainted that the complainants were the Governor, Council, Assembly, Judges and Justices in Bermuda; and being further asked if he insisted on seeing the Governor's letters, and the affidavits therewith transmitted relating to the said complaint, he replied that he did not desire it, but was satisfied in knowing who the complainants were.
Letter from the Lords Proprietors about a new Governor.
A letter from the Lords Proprietors of the Bahama Islands, signifying their having made choice of Robert Holden, esquire, to be their Governor of the said islands [fo. 185], and desiring the Board would obtain her Majesty's approbation of him, his presence there being absolutely necessary &c., was read; and Mr. Holden attending at the same time, their lordships asked him if he was prepared to give such security as should be demanded of him for his due observance of all instructions that shall be sent to him from her Majesty, pursuant to the several Acts of trade, relating to the plantations; he answer'd that he was ready to do it. Then being desired to give an account in writing of the present state of defence, trade and products of those islands, as likewise of Carolina, he promised to do the same accordingly; and he being withdrawn, their lordships gave directions for laying before them at their next meeting, the papers relating to the securities given here by former Governors.
May 22. Present:—Earl of Stamford, Lord Herbert of Cherbury, Mr. Pulteney, Mr. Monckton.
Memorial from Mr. Baron about complaints against him.
Mr. Robert Baron, late minister of Bermuda, attending, presented to the Board, a memorial setting forth his having waited on the Lord Bishop of London [fo. 161; M. fo. 190], and that his lordship had informed him there were several affidavits against him in the hands of Sir John Bennet, and praying that Sir John may be required to lay the same before their lordships, was read. Whereupon he was acquainted that there being no such affidavits in this office, their lordships could not take cognizance of those in Sir John office, their lordships could not take cognizance of those in Sir John Bennet's hands, he not having offer'd any thing to the Board thereupon, and that a letter having been already writ upon his former memorial presented the 9th instant to Colonel Bennet for his particular answer thereunto, their lordships did not think they could do anything in that matter till they had received Colonel Bennet's answer.
Laws under consideration.
Their lordships again proceeded in the consideration of the laws past in Virginia [fo. 181, 187], and read eleven of the said laws.
Letter to be writ to Colonel Park for transcripts of laws.
Ordered that the draught of a letter be prepared to Colonel Park, Governor of the Leeward Islands, directing him to transmit to this Board with all convenient speed, a compleat collection of all the laws in force in the said islands, pursuant to his instructions in that behalf.
Circular letter to be prepared to all the governors for transmitting accounts of the revenue, minutes of Council and Assembly.
Further ordered that the draught of a circular letter be likewise prepared to the several Governors in her Majesty's plantations in America, requiring them. pursuant to their instructions, to transmit to this Board fair transcripts of the accounts of the revenue, as also the minutes of Council and minutes of Assembly.
May 23. Present:—Earl of Stamford, Lord Dartmouth, Lord Herbert of Cherbury, Sir Philip Meadows, Mr. Pulteney, Mr. Monckton.
Letter from Mr. Thurston about the sending the mony and clothing to the soldiers.
Letter to Mr. Burchet thereupon.
A letter from Mr. Thurston of this day's date, desiring a letter may be writ to Mr. Burchet for his royal Highness the Lord High Admiral's order to the Commander of the convoy now going with the sack ships to Newfoundland, to take on board the cloathing and money for the soldiers there, was read, and a letter writ to Mr. Burchet by their lordships' directions accordingly [fo. 187].
Memorial from Mr. Holden about state and products of Bahama and Carolina.
A memorial from Mr. Holden, nominated by the Lords Proprietors of the Bahama Islands [fo. 182, 205, 215] to be their Governor of those islands, as mentioned in the minutes of the 21st instant, relating to the present state and products of the said islands, as also of Carolina, was read; and Mr. Holden being called in, he was acquainted that, in relation to his having the Queen's approbation as Governour, their lordships thought the proper method was to make his application to her Majesty in Councill, and that then their lordships, if referr'd to them, would take the same into consideration.
Merchants relating to tobacco trade and convoys.
Mr. Perry, Mr. Hide, Mr. Corbet, Mr. Linton and several other Virginia merchants attending, that part of the representation of the 26th of April, 1706 [K. fo. 301], which relates to the opening a free trade for tobacco in Muscovy, was read to them. Whereupon they said that they had obtained a copy of the said representation from the Earl of Sunderland's office, and finding that nothing had been done thereupon, but in relation to convoys, they desired their lordships would be pleased once more to renew the substance of the said representation, and particularly to the opening of the trade to Muscovy, the contractors having now sold to the Czar all their tobacco there. And being desired, they promised on Tuesday next to bring their lordships a memorial of what they thought for the advantage of the tobacco trade [fo. 208].
Laws sent to Mr. Sollicitor General.
Ordered that the laws past in the Massachusets Bay from February, 170 0/1;, to August, 1706, be sent to Sir James Montague, her Majesty's Sollicitor General, for his opinion thereupon in point of law.
May 26. Present:—Earl of Stamford, Lord Dartmouth, Lord Herbert of Cherbury, Sir Philip Meadows, Mr. Pulteney, Mr. Monckton.
Letter from Mr. Burchet about directions being given to take the money and cloathing for the soldiers on board.
A letter from Mr. Burchet, in answer to one writ him the 23rd instant [fo. 185, 204], signifying that his Royal Highness had given directions to the commander of the convoy to receive on board the money and cloathing for the soldiers at Newfoundland, was read.
That for suppressing vice to be sent to the Bishop of London.
That about juries to the Solicitor General, and to be communicated to Colonel Nicholson.
Their lordships took again into consideration the laws past in Virginia [fo. 184, 189], and read seven of the said laws, and gave directions that the law for the effectual suppression of vice and restraint [fo. 205] and punishment of blasphemous wicked and dissolute persons be sent to the Lord Bishop of London, the reasons of the Council and Assembly not appearing sufficient for their altering that part of the said law which relates to penalties to be inflicted on young persons absenting themselves from church, and to desire to know if his lordship have any objections to the said law. Further ordered that the law concerning juries be sent to Mr. Solicitor General for his opinion thereupon, and that the said law be likewise communicated to Colonel Nicholson for his observations upon it [fo. 251].
Draught of representation upon the complaints against Colonel Sharp.
The draught of a representation upon the hearing of the complaints of Colonel Cleland, Colonel Colleton and Colonel Holder [fo. 167, 190] against Colonel Sharp, President of the Councill of Barbadoes, mentioned in the minutes of the 20th instant, was agreed and ordered to be transcribed.
May 27. Present:—Earl of Stamford, Lord Dartmouth, Lord Herbert of Cherbury, Sir Philip Meadows, Mr. Pulteney, Mr. Monckton.
Clauses offer'd by the Commissioners of the Customes relating to acts of trade, &c., added to Governors' instructions.
Upon consideration of several clauses proposed by the Com missioners of the Customes in 1701, to be added to the orders and instructions to be given to the Governors of her Majesty's plantations in America, relating to the Acts of Trade and Navigation (entred in Plantations General C. fo. 11); ordered that the said clauses be added from time to time to all future Governors' instructions accordingly; but that the first clause relating to bulk tobacco be added only to the instructions for the Governors on the continent.
Then their lordships proceeded further in the consideration of the Virginia laws [fo. 187], and read ten of the said laws.
May 28. Present:—Earl of Stamford, Lord Dartmouth, Lord Herbert of Cherbury, Sir Philip Meadows, Mr. Pulteney, Mr. Monckton.
Report from Sir Edward Northey upon acts past in Virginia.
A report from Sir Edward Northey, late Attorney General [I. fo. 36] upon the Acts past at Virginia in December, 1700, August, 1701, May and August, 1702, together with the Acts themselves, were read, as also several other Acts past in April, 1704, and April, 1705, which Acts appeared to their lordships to be either expired or otherwise provided for by the collection of laws past in 1706, now under their lordships' consideration.
Letter to the Earl of Sunderland with representation on Colonel Cleland, &c. petition against Colonel Sharp.
A representation upon the petition of Colonel Cleland, Colonel Colleton and Colonel Holder [fo. 188, 322, 336], complaining of the proceedings of Colonel Sharp, President of the Council of Barbadoes, as agreed the 26th instant, together with a letter to the Earl of Sunderland, enclosing the same, were signed.
Acts under consideration.
The Acts past in Jamaica [fo. 204] in April, May and June, 1704, and in July and August, 1705, were read, and several notes made in order to a representation thereupon.
May 29. Present:—Earl of Stamford, Lord Dartmouth, Lord Herbert of Cherbury, Sir Philip Meadows, Mr. Pulteney, Mr. Monckton.
Hearing upon the petition of Sandford and Dorn against Mr. Cox.
This day having been appointed at the meeting of the 20th instant
[fo. 181, 260] for hearing of council upon the petition of Mr. Sandford
and Mr. Dorn, complaining of the proceedings of Mr. Cox, chief
judge of a court of oyer and terminer held in Barbadoes for the body
of that island, the 10th of December last, and Sir Edward Northey
and Mr. Letchmore attending for the petitioners, and Sir John
Hawles and Mr. Mead for the defendant, her Majesty's Order in
Council of the 27th of March last, referring to the Board the abovesaid petition, together with the petition itself, were read. The
chief articles of which petition are as follows, viz.:—
That the petitioners being justices of a court of oyer and terminer were imprisoned by the said chief judge, contrary to her Majesty's instructions for that government, and contrary to the liberty allowed her Majesty's subjects by the laws of England and of that island.
And that the said Cox did name the grand and petty jurys in his own right, without consulting the other justices in commission with him.
Then the council for the petitioner said that they intended only to prove that the chief judge had impannell'd the jurors contrary to law and the practice of that island, and that he had caused the petitioners to be imprisoned by his own authority in an arbitrary manner, for pretended crimes, without the consent of the rest of the justices of the court, whereof he was chief judge.
In order to prove the said articles, they produced the Act past at Barbadoes in September, 1698, entituled, an Act concerning the general sessions; the third clause whereof was read, directing the method of summoning juries, viz.:— "That the Governor or Commander-in-Chief shall direct his precept or writ to some one member of the Councill in each parish, or to a justice of the peace of such parish where there shall be no counsellor residing, which said counsellor or justice of the peace are to nominate, appoint and summon six of the most substantial freeholders of the said parish (not being of the Assembly, nor in commission or field officers) to serve as jurors."
They also read the 5th clause of the said Act, directing: "That in all matters before in this Act mentioned, every justice of the peace shall have a free vote beginning from the last justice named in the commission, and so onward to the first according to the custom and usage of the kingdom of England."
Upon which they observed that the practise of the island upon the law was, that there being eleven parishes, the returns for jury men were in number 66. That the said returns were made to the clerk of the crown, who reducing the same into one list, the court considered thereof, and upon reading the names, if no objection was made, they were taken and sworn in order as they were set down.
That the chief judge had not in any manner observed this method, for that on the 10th of December, after the commission for holding the court of oyer and terminer had been read, the said chief judge pull'd a paper out of his pocket, not the list of 66 jurors as returned to the clerk of the Crown (but they offer'd no proof to this allegation) wherein the names of the grand and petty juries were incerted and several names raced (sic) out by the chief judge, who thereupon ordered the clerk of the crown to call them over. Whereupon Thomas Allen, a member of the said court, advised the chief judge that his naming the said juries as aforesaid was irregular and contrary to the practice of such courts; that the chief judge replied thereunto, that he had been well advised in what he did, and that it was his right to nominate the jury, which was accordingly impannell'd and sworn.
That the second day of the court, before the petty jury was sworn, the said Thomas Allen offered to the said chief judge a memorial in writing, in behalf of himself and other members of the said court, a copy whereof was produced to their lordships, declaring their right of being consulted in the nomination of the juries, and desiring the opinion of the court might be asked, whether the chief judge had a right in himself, exclusive of the court, to appoint the juries or no, which the chief judge refused to do. Upon which twenty of the members of the court dissented to his proceeding, and prayed that their protest might be entred accordingly, which was also refused.
That on the third day of the said court, several of the members who had not attended the court before, being sworn, and desiring that the commission for holding the court might be read in order to the giving their opinion upon the debate touching the nomination of juries, the same was also refused. And the chief judge read to the court his answer to the memorial delivered to him the day before by the said Thomas Allen.
That the fourth and last day of the said court, the said Thomas Allen offered to the said chief judge a protest in writing against his proceedings, desiring the same might be read and enter'd in the session book (a copy whereof was now produced to their lordships) which was in like manner refused by the chief judge. Upon which the said Allen desired leave to bring in a Bill of exceptions, to which William Walker, esquire, her Majesty's council at law, replied, that Bills of exceptions were never brought but by the parties injured; whereunto Mr. Sandford, one of the petitioners, answered, we are parties (meaning, as counsel alleged, parties to the Bill of exceptions), which word party occasion'd a great noise and tumult in the court, insomuch that silence was often commanded by the chief judge, and the petitioner Dorn not hearing the same, was, for not being silent, ordered to be taken into custody and carried away; and that the said Sandford, upon a misinterpretation of the foresaid words (not being permitted to explain himself), was hurried off the bench, and together with the said Dorn committed into the custody of the provost marshal.
In proof of all which, the counsell for the petitioners produced the affidavits of the foresaid Thomas Allen and of Giles Theyer, John Holder, Samuell Osborn, Elisha Holder, Henry Evans, Richard Bruster, Thomas Stokes, Nathaniel Holder, Reynold Allen, and of Allen Culpeper; the three first thereof were read, the rest being all to the same purpose, the counsell did not press the reading of them.
They also produced a copy of the chief judge's order for the commitment of the petitioner Dorn, in the words following, viz.:— December the 13th, 1706, ordered by the Honourable Samuel Cox, chief justice, that John Dorn be committed, for not keeping silence in court, when ordered by the chief justice, to the provost marshal or his lawful deputy. From whence the counsel observed that this commitment was by the authority of the chief judge only; whereas it ought to have been by the authority of the court. That had the commitment been by order of the court, yet at best it would have been a very rash unjustifiable proceeding to commit a member of the court (which was the said Dornes case) barely for not being silent; but more especially, he not having heard silence commanded; and having, so soon as ordered to be taken into custody, submitted himself in saying, I have done, I have done. That in all courts the judges have the liberty to offer their opinion upon any matters before them, and are never refused to be heard by their associates, 'twas admitted.
That if one of the judges of a court of oyer and terminer misbehave himself, the court have a power over him, but it must be the act of the court, and so recorded, and not of the chief judge alone.
That if the counsel on the other side could make it appear that the commitment of the petitioners was by the consent and approval of the court, then there would no charge lye against the chief justice, but they having by the aforesaid affidavits, and the copies of the commitments of the petitioner Dorne, proved that the said commitments were by the single authority of the said judge, and was (as well as his impannelling the juries) contrary to the practice of the courts here in England, and even of those in Barbadoes, and contrary to the rights and priviledges of her Majesty's subjects, they hoped their lordships would represent it accordingly to her Majesty.
Then the council on the other side owned that the said chief justice had appointed the juries, but not illegally, and that the petitioners had been imprisoned, but that it was done by consent of the court.
They alledged that the occasion of the tumult was not the nominating of the juries, as had been observed by the other side, but that it was the Paper Act. In proof of which they produced the affidavit of John Merring, one of the justices of the said court, setting forth that the petitioner Sandford told him that there were persons on the grand jury, who had declared themselves against the said Paper Act, and that therefore he thought it reasonable there should be as many, who were for the said Act, named of the jury, as would make an equality, which affidavit was read; upon which the councill observed that Colonel Holder and those of his party (of which were the petitioners) fearing that the grand jury might present the inconveniencies of the said Paper Act, had caused all this disorder to prevent the same.
That the returns of the said jurors were made to the clerk of the Crown, according to the directions of the aforesaid Act of Barbadoes, and that the paper pull'd out of the chief judge's pocket was only the said return which had been communicated to him by the clerk of the Crown, and that the names razed out by the chief judge were only such who had made excuses for nonattendance, and, in proof of this last assertion, they referred to the deposition of Colonel Holder, which had been already read by the other side.
That the said paper of names was read by the clerk of the Crown, and no objections made to any of the persons therein by the court, so that the grand jury was in effect nominated by the court.
That the question which Colonel Allen would have had proposed to the court, viz.:—Whether the chief judge had a right in himself exclusive of the court to appoint the juries or no, was a very improper and insnaring question, for it would have implyed that the chief judge did claim such a power; and therefore the council thought the chief judge in the right not to propose the same. That the question he did propose, viz.:—Whether the court approved of the jury, was very proper, and was carried by a majority of eight voices; so that the appointing the said jury was the act of the court.
That the allegation that the chief judge refused to have the memorial offer'd him by the foresaid Allen entred in the session books, was not in fact true, it being entred there together with the chief judge's answer thereunto; a copy of which session book was produced to their lordships under the seal of the island, and that part read.
That the petitioners Sandford and Dorn were not committed barely for the reasons alledged by the councill on the other side, but for misbehaviour in court. For that upon the cheif judge's commanding silence when the tumult happen'd, the said Sandford replied silence, command the mob silence, and then laying his hand upon his sword went up to the chief justice, and josled him out of his place. Upon which several members of the court desired the chief justice to commit him; that Dorn was committed for not keeping silence, and for that when Sandford cried, we are parties, have we no more members to do us justice, the said Dorn cried out—I'll stand by you; which behaviour of the petitioners, interrupting the proceedings of the court, was such as would not be born in any court here in England, and that their commitment being in pœnam for such offence, was legal and justifiable.
They further observed that several of the justices of that court, having desired the chief judge to commit the petitioners, and none opposing the same, it was more than probable the majority was on the chief judge's side, and therefore that the said commitments, though only in the chief judge's name, were the act of the court.
As a further instance of the said Sandford's misbehaviour, they said that upon the second day of the said court the said Sandford by force took from the clerk of the Crown a Bill of indictment for murther, and laying hold of the Attorney General's hands, with violence hindred him from delivering the same to the grand jury. In proof of which they produced the minutes of the said court, as also several affidavits hereafter mentioned; and in proof that the words, we are a party, spoken by the forementioned Sandford, were said in a different sence from what alledged by the councill on the other side. They referr'd to the several following affidavits, setting forth the behaviour of the said Sandford each day of the sitting of the said court.
Lastly, they observed that though the petitioner and those that joined with them had protested against the proceedings of the court, and refused to vote therein; yet they all did vote in the behalf of Colonel Holder against Mr. Hodges, who as a counsellor at law had objected against the legality of the said Holder's being a counsellor of that island, which they offered also as a collateral proof, that the word party meant more than alledged by the other side.
In proof of all which they produced forty-eight affidavits, six of which were read, viz.:—that of William Cogan, Thomas Afflick, Alexander Conningham, William Hart, William Gorden and Hugh Hall, and they took notice that twenty-three of the said forty-eight affidavits were made by members of the said court, who declared they joined with the chief judge in the commitment of the petitioners.
The counsell for the defendant desired to rest the matter here, hoping they had fully made out that the chief judge had done nothing to deserve her Majesty's censure.
Letter to Captain Gardner.
After both parties were withdrawn, ordered that a letter be writ to Captain Gardner [fo. 145, 255] to know what progress is made in the raising of recruits for Jamaica.
May 30. Present:—Earl of Stamford, Lord Dartmouth, Lord Herbert of Cherbury, Sir Philip Meadows, Mr. Pulteney, Mr. Monckton.
Letter from Mr. Thurston about the cloathing being put on board, &c.
Letter to Mr. Lowndes to move the payment of advance mony.
A letter from Mr. Thurston of this day's date, signifying his having put the cloathing for the soldiers at Newfoundland on board the commander of the man-of-war now going thither [fo. 187, 409], and that the demands for the last year was ordered, but nothing done for the present year, which was read; and a letter writ to Mr. Lowndes by their lordships' directions to move my Lord Treasurer for the payment of one year's advance of mony, for the said soldiers there as usual.
Representation to be prepared thereupon.
Then their lordships took into consideration the Acts past in Jamaica in February, 1706/7, and went through the same; and gave directions for preparing the draught of a representation thereupon as likewise in the other Acts of Jamaica [fo. 190, 209] read at the 28th instant.