Journals of the Board of Trade and Plantations, Volume 7, January 1735 - December 1741. Originally published by His Majesty's Stationery Office, London, 1930.
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Journal, June 1736
The Board taking again into consideration the complaint of Mahomet, Sachem of the Mohican Indians of Connecticut against that government, for taking their land from them, mentioned in the minutes of the 25th ult.; and the secretary laying before the Board two orders in Council in 1706 (Proprieties O: No. 71 and 75) upon an appeal from Connecticut against the judgment of the Commissioners in 1705, upon the abovementioned complaint; as also a commission of review granted by the queen in 1706 to the Lord Cornbury, Governor of New York, and to the Council, impowering them to re-examine and determine that affair, their lordships agreed to postpone the draught of the report upon this subject, then ordered to be prepared, and ordered that Mr. Mason, the interpreter to Mahomet, be directed to attend the Board to-morrow morning.
Mr. Coope desires a copy of the memorial; it was ordered accordingly, and Thursday the 10th inst. was appointed for considering two Acts, therein mentioned, passed in 1732 and 1733–4, for reducing the secretary's fees and for granting a poll tax etc., mentioned in the minutes of 26th ult.
The Board acquaint them with the appeal from Connecticut, mentioned in yesterday's minutes, and asking Mr. Mason whether he knew anything of it, or of the commission of review granted in consequence of it; he said that he never had heard of it, although at that time, he was appointed the guardian of the Mohican Indians; the Board then read the petition from Sir Henry Ashurst, agent for Connecticut in the year 1706, against the judgement given by the Commissioners in behalf of the said Indians, as likewise the memorial from Mr. Wharton, agent for the said Indians, mentioned in the orders of Council, read yesterday; and directed that a copy of Sir Henry Ashurst's petition should be entered in the books of this office, the original of the petition being in the Council Office. Directions were then given for concluding the draught of the report upon this subject, ordered to be prepared the 25th ult., by stating the abovementioned petitions and the commission of review granted in consequence thereof, and by proposing that a new commission of review may be granted for examining into the complaint of the said Indians upon the same foot as the former.
A letter from Mr. Crosse, consul at the Canaries, dated the 6th of April last, with a memorial from him to the Board, praying directions that wines of the growth of the Canaries, may be imported into the plantations in like manner as Madera wine, was read; Mr. Cross has nothing to add to the above memorial to be further considered.
The draught of a report, ordered to be prepared the 14th ult., upon the reference from the Duke of Newcastle in relation to duties demanded at Genoa from the English and other merchants, was considered; and their lordships agreed to take this matter into further consideration, on Wednesday morning next, at which time, ordered that Monseiur Guastalla, the Genoese secretary, be desired to attend, as also Mr. Loubière and Mr. Busier, and the Board then adjourned to that day.
Notwithstanding the above minute, the Board took into consideration the draught of a report, ordered to be prepared the 21st inst., upon the petition of the Mohican Indians, and agreed to the same; the Board then adjourned as above.
The Board take into consideration the reference from the Duke of Newcastle, relating to a tax demanded at Genoa, mentioned in the last minutes, as likewise the translation of several papers upon this subject, mentioned in the minutes of the 16th of April; and asking Mr. Guastalla the method of raising these taxes, he says that the taxes are imposed upon every man's worth, but if he should say that he is not worth so much, as he is reputed worth, then the tax is usually reduced to what he says he is worth.
Mr. Loubier and Mr. Busier not attending, as they had been desired, the Board postponed the consideration of the report upon this subject till to-morrow morning, and ordered that they should be desired to attend at the same time.
Mr. Forbes desires the Board to appoint a day for considering the Act passed in 1735, for regulating the marhsall's proceedings; and the Board appointed Friday sennight, and ordered that Mr. John Sharpe, agent for Jamaica, be directed to attend at the same time.
A letter from Mr. Clarke, President of the Council and Commander in Chief of New York, dated the 7th of April last, and the two papers referred to in it, relating to Van Dam's suspension, were read; and the Board taking this whole affair into consideration, as also another letter from Mr. Clarke, dated the 29th of March last, and now read, upon the same subject; and inclosing a speech of Mr. Morris, junior, in the Assembly, against the Court of Equity, gave directions for preparing the draught of a report to the Lords of the Committee, referring to the Board's representation of the 28th of August last, proposing that Van Dam, Morris and Alexander be dismissed the Council, and for inclosing copies of such papers as relate to the suspension of the said Van Dam.
Mr. Loubier attending since the making of the above minute, and their lordships asking him whether he had heard anything concerning the aforementioned tax; he said that he had been informed thereof, and that a tax of the like nature had formerly been occasionally imposed, but that Mr. Solomon Merrit (agent to Mr. Bagshaw, the consul at Genoa) might probably give the Board further information; ordered that Mr. Merrit be desired to attend the Board accordingly to-morrow morning.
The Board take again into consideration the petition from Mr. Smith, secretary to the Leeward Islands, read the 1st inst., complaining of two Acts passed at St. Christophers in 1732 and 1733–4, for granting a poll tax on slaves, and 5 per cent. on rents to pay publick debts, and settling the salarys of several officers and for reducing the secretary's fees etc. And Mr. Smith, secretary to the Leeward Islands, attending, as he had been desired, with Mr. Joshua Sharpe, his solicitor, as also Mr. Coope, agent for St. Christophers, with Mr. John Sharpe, his solicitor, Mr. Brown, late Chief Justice of that island, Mr. Spooner, Solicitor General, and several gentlemen of the Leeward Islands, and others, the Board take again into consideration Mr. Smith's petition, read the 1st instant, as also the Act therein complained of, passed at St. Christophers in 1732, entituled, An Act for granting to his Majesty a duty of 8s. per poll on all negroes and other slaves within this island, and also £5 per cent. on the rents of all houses, warehouses, shops and tenements in the several towns within the said island, to be applied towards the discharge of the publick debts, and for ascertaining and settling the salaries of the several officers therein mentioned; Mr. Smith then represented to the Board, that by an Act passed in that island in 1719, entituled, An Act for raising an impost on liquors imported etc., a fund was settled for repairing fortifications etc., and for defraying the contingent charges of government, out of which fund he was paid, for such business, as he transacted for the publick; that in the year 1722 another Act was passed, entituled, An Act to repeal a certain Act of the Council and Assembly of this Island of St. Christophers, entituled, An Act for raising an impost upon liquors imported into the said island, and for imposing certain duties on wines etc., whereby that fund was changed from being paid in sugar, as settled by the Act of 1719, and made payable in current money, which having been raised by the Governor to a higher value than that settled by an Act of the 6th of the late queen, he was considerably abridged of his profits; that by the Act now under consideration, passed in 1732, he was obliged to receive a salary of £60 a year, in lieu of all profits formerly taken by him and his predecessors, for house rent, and business done by him in the execution of his office. Mr. Smith then produced the minutes of Council of St. Christophers for the year 1735, in order to shew the sense of the legislature of that island upon the Act in question; and it appeared by the minutes of the 24th of June and 14th of July in that year, that the Council and Assembly were of opinion, upon considering a memorial he presented to the Council upon this subject, as also desiring payment of a bill of fees for business done for the publick, that the salary of £60 a year was not an adequate recompence to him for his trouble, and agreed to give him £110 a year, provided he will receive the same in full for house rent and for all business done for the publick service, and at the same time they approved his accounts; and being asked by the Board whether he accepted this offer, he said he had refused it, not being willing to give up the right he had to fees, by virtue of his patent. Mr. Smith then referred to the minutes of Council of the 23rd of August, 1715, which being read, it appeared that by an order from the Commander in Chief in Council, the value of French crowns, which are the most common coin in the Leeward Islands, was raised from 6s., as settled by the Act of Parliament, passed in the 6th year of Queen Anne, entituled, An Act for ascertaining the rates of foreign coins in her Majesty's plantations in America, and by an Act of Assembly in the Leeward Islands passed by Colonel Codrington in 1694, entituled, An Act ascertaining the value of foreign coin in the islands, and was by that order in Council fixed to pass current at 7s., by which he was a considerable loser. He further objects to this Act, as having been passed in breach of several of the Governor's instructions, and respectively referred to them, vizt., the 17th Article, which forbids the Governor to give his assent to any law, which shall be proposed for a temporary service, and contain any perpetual clause in it; that the former part of the Act in question for raising certain duties was temporary, whereas the latter part, fixing his salary, was perpetual; the 34th Article, which directs that the President of the Council, during the absence of the Commander in Chief, although thereby impowered to take upon him the administration, shall nevertheless forbear from passing any law, unless it be for the immediate service of the government, and that the Act in question was not so; the 57th Article, which directs the Governor to shew all due countenance and favour to the king's patent officers. Mr. Smith further objects to this law, as having been passed in a precipitate manner, read in the Council twice in one day, and no opportunity given to him, who was then at Antigua, to offer his objections to it; he said further that by his patent he was entituled to such fees, perquisites and advantages as any of his predecessors had ever enjoyed; and as by this Act he was unjustly deprived of them, he hoped the Board would be of opinion that the Act ought to be repealed.
Mr. John Sharpe, in behalf of the Island of St. Christopher's, observed to their lordships that although, as Mr. Smith had alledged, the Act of St. Christophers, passed in 1719, was to raise a fund for defraying, among other things, the contingent charges of the government, yet he could not conceive what right Mr. Smith had, to claim payment, for what business the publick should think proper to pay him for, out of that particular fund; and that as to the Island of St. Christopher's having by the subsequent Act of 1722, made this fund payable in current money instead of sugar, he said the reason was inserted in the preamble of the Act, vizt., to obviate the difficulty of collecting sugar; and that he conceived the Legislature had an undoubted right to alter any fund they should think fit; Mr. Sharpe then referred to the 29th and 46th Articles of the Governor's instructions, which being read, he observed, that as by the 46th Article, the Governor was directed to take care that all salaries and fees payable to the several officers should be settled within due bounds of moderation, and that no exaction be made on any occasion whatsoever; this Act was passed in conformity to that instruction, there having been complaints made of the fees demanded and taken by Mr. Smith: that by the 29th Article the secretary is required to furnish copies of Acts, minutes and other publick transactions under penalty of forfeiting his office; but that there is no mention made therein, nor in his patent, of any fee or reward demandable by him for business done by him for the publick: that the Act in question extends no further than to publick business, and as it entitles him to a fixed salary for that branch of business, for which he can legally make no demand, he thought Mr. Smith ought rather to look on this Act as matter of favour, and not of complaint; that although there appeared in the minutes of Council, produced this day by Mr. Smith, a list of fees demanded by him, of which he was ordered payment, yet Mr. Sharpe observed that, that list could not be made a precedent of, it not being a table of fees not settled by any authority, but only an account of business done, for which Mr. Smith had charged certain fees, as due to him from the publick. Mr. Sharpe further observed that notwithstanding the Act in question, Mr. Smith did receive fees for whatever business passed through his hands, except what immediately related to the publick; and to shew the Board that the sense of other legislatures was the same as that of St. Christophers, he quoted the secretary of Barbados's petition to the king, praying payment of his bill of fees for business done for the publick, which, though it had been recommended to the Assembly of Barbados for payment, yet they had constantly refused it, alledging that the publick business ought to be done by the secretary ex officio. That if this law should be repealed, it might be very difficult for Mr. Smith to get any allowance at all, for what business he should do for the publick; and that he thought it was more honourable to have a certain and fixed salary, than to be dependent upon an Assembly for the payment of such bills, as Mr. Smith should produce. That as it was not an extraordinary thing for one Assembly to differ in opinion from another, he could look upon the minutes of Council of the 24th of June and 14th of July, produced by Mr. Smith, to shew that the legislature thought his salary of £60 a year was too small, as an instance of it; that by this Act, Mr. Smith is not deprived of any legal fee, which he may have a right to receive from private persons, and that in case of publick business, where he has no legal demand of any fee at all, a real salary was settled upon him, equal in value to what the two persons, who were examined by the Council, as appears by the minutes produced by Mr. Smith, deemed the transaction of publick business to be worth: that the Solicitor General and the Provost Marshall had likewise salaries settled upon them by the said Act, but that they did not think they had any reason to complain, nor have they made any complaint: that in answer to Mr. Smith's having alledged this Act to be contrary to several instructions, vizt., the 17th, 34th and 57th Articles, Mr. Sharpe observed that although the last clause for settling Mr. Smith's salary was perpetual, and that the other parts of the Act were only temporary, yet as he imagined the instruction contrary thereto, was only intended to prevent any clause being by surprize inserted in any Act, and as the very title of the Act in question expressed the whole purport of it, he hoped this Act could not be deemed a breach of the 17th instruction; and the rather, since there were many instances of it, both in the plantations and in Act of Parliament at home. With regard to the 34th, restraining the President's power of passing laws, he said this Act was entirely within the description of those, which the President was allowed to pass, it being an Act very necessary for the peace and welfare of the island, and that the necessity of it appeared in the preamble of a clause in the Act, vizt., whereas several disputes have arisen relating to the fees claimed by his Majesty's Solicitor General, the Secretary and Provost Marshall of this island; now for prevention of any or the like disputes for the future etc. and that whatever was asserted in the preamble of any Act must be believed, as every Act must pass the examination of every branch of the legislature. With regard to the 57th Article, Mr. Sharpe observed that it had been punctually complied with, this Act having been passed in direct favour to Mr. Smith, as one of his Majesty's patent officers: that although Mr. Smith had objected to the manner of passing this Act, vizt., its having been read twice in one day in the Council, yet it could not be said to have been passed in a precipitate manner, because it underwent a deliberate consideration in the Assembly, and that it is frequently the custom to read an Act twice in one day in the Council, when it meets with no opposition, because of the difficulty there is of getting a quorum to meet at different times, upon one and the same business: that what Mr. Smith had offered to the Board, upon the subject of foreign coin, was true, and that it was done in order to keep some coin current in the island; but that he would not trouble the Board with any further observation upon that subject, because it did in no way relate to the Act in question; Mr. Sharpe then desired Mr. Spooner and Mr. Brown would inform the Board what they knew concerning the affair in question, and they both being sworn; Mr. Spooner said, that when this Act passed, he was Speaker of the Assembly, and that to the best of his remembrance, the Act was not hurried through the House, but that it was about a fortnight or three weeks from the time of its being brought into the House, before it passed; being asked what he knew concerning Mr. Smith's fees, he said that Mr. Smith, as clerk of the Crown and clerk of the Council, had many fees exclusive of what he expected from the publick for publick business; that as clerk of the Crown he had a fee upon the discharge of every prisoner, and upon many other occasions that he could not recollect; that as clerk of the Council, his fees were very considerable; that Mr. Knight, predecessor to Mr. Smith, rented the whole office at St. Christophers for £70 a year to Mr. Lyddell, in whose time any allowance for publick business was esteemed a bounty; that before 1715, there were no fees demanded, and little or no allowance made for publick business; that by a clause in the Act passed at St. Christophers in 1715, the secretary is required to hang up in his several offices a table of fees, that everybody might know his demand; but that Mr. Smith would not comply with it, and being ordered to prosecute him on that account, he did so, and Mr. Smith was fined £10 by the Court of King's Bench. Mr. Brown then confirmed what Mr. Spooner had said, and added that before Mr. Lyddell's time, the clerk of the Council took no fees for publick business; but that since that time, the fees being increased, Mr. Smith had rented his office to Mr. Balaquier for £150 a year. The Board then adjourned the further consideration of this affair to Thursday next.
Mr. Solomon Merrit attending, as he had been desired, and being asked what he knew concerning the tax imposed on all foreigners at Genoa, as mentioned in yesterday's minutes, he said that he was a correspondent of Mr. Bagshaw, the Consul at that place, but that he had heard nothing concerning that tax.
The draught of a representation, mentioned in the minutes of the 2nd instant, upon the petition of Mahomet, Sachem of the Mohican Indians in Connecticut, complaining of their having been deprived of their land by that government, was agreed to and signed, as also a letter, for inclosing the same to the Duke of Newcastle.
A letter from the Lord Harrington, inclosing the copy of a memorial from Prince Cantimir, the Ambassador from Russia, complaining of Mr. Chitty's proceedings concerning the rhubarb contract, mentioned in the minutes of the 27th of the last month, was read.
Mr. Smith, secretary to the Leeward Islands, attending, as he had been desired, with Mr. Joshua Sharpe, his solicitor, and Mr. Coope, agent for St. Christophers, with Mr. John Sharpe, his solicitor, and the several gentlemen, who attended the Board on Thursday last, upon the subject of the St. Christophers Act, passed there in 1732, entituled, An Act for granting to his Majesty a duty of 8s. per poll on all negroes etc. and for ascertaining and settling the salaries of the several officers therein mentioned, against which Mr. Smith complains; the Board took the same again into consideration; and Mr. John Sharpe, desiring to make some observations upon the bills of fees, produced to the Board by Mr. Smith at the last meeting, before Mr. Smith should make his reply, he said: that having examined the said bill of fees, he found they could not be esteemed fees established by any authority, or even by prescription, because they vary in value; that for venire's, it appeared he had charged sometimes 6s., sometimes 12s., and sometimes 13s.; that he had likewise varied his fee for proclamations, commissions of the peace etc.; but that proclamations and commissions of the peace, being publick business, he ought to have charged no fee at all; that he had likewise inserted charges for books, although he had set down a general article for pens, ink and paper; that he had charged £30 a year salary, as clerk of the Council, and had likewise made another charge in the same account of 6s. a day for attending the Council; that he had likewise inserted an article for house rent in his said bill of fees, and charges for copies of minutes of Council and Acts of Assembly; although the first was matter of bounty from the island, and that no charge for copies of minutes, Acts or other publick business was ever made before Mr. Smith's patent. Mr. Sharpe further observed that the 17th instruction to the Governors (read at the last meeting) requiring the secretary to furnish copies of Acts and minutes of Council, was first given in the year 1679, and that as no mention is therein made of any fee or reward for the aforesaid copies, no demand could be made, and more especially since Mr. Smith's patent bore date so long since the first giving of that instruction, as in the year 1722.
Mr. Smith then acquainted the Board that it was impossible for him to answer the observations Mr. Sharpe had made upon some particular articles charged in his account so long since; but that he hoped the Board would look on them as fair accounts and properly charged, since they had undergone an examination of the legislature of St. Christophers; and with regard to Mr. Sharpe's observation that the said bill of fees could not be deemed a table of fees of any authority, he said there could be no occasion for any such table of fees, nothing therein charged being payable by private persons, and that for the satisfaction of the Governor and Council, who always examined his accounts, their method was to compare them with former demands of the like nature, before any order was made for the payment thereof. In answer to Mr. Brown and Spooner's having said that in Mr. Lyddell's time no demand was made from the publick for business done for them, but that whatever allowance was made, was ever deemed a bounty, he acquainted the Board that Mr. Lyddell had been appointed in the year 1714, and produced to the Board minutes of Council of the 26th March, 1717, the 25th of February, 1718–9 and the 1st of June, 1722, by which it appeared that the following sums were paid to Mr. Lyddell; £212 4s., £342 12s. 3d. and £157 4s. 5d.; he likewise acquainted the Board that by another minute of Council in August, 1720, but not to be found in this office, that there was also paid to Mr. Lyddell £121 9s. 10d. and £45 6s.—but Mr. Smith did not produce any authentic copy of this minute; however he observed that Mr. Lyddell, having acted as secretary about seven years, and having received for that time the above sums, amounting in the whole to £878 16s. 6d., the profits of his place at a medium, was about £125 per annum. He then acquainted the Board that Mr. Balaquier, who succeeded Mr. Lyddell, acted as secretary for four years and three months, and received from the publick of St. Christophers for that time, the sum of £533 9s. 7d., which at a medium amounted to £133 a year, and observed that these payments were double the sum now thought sufficient for his annual salary, although the business of his office was very much increased. Mr. Smith then produced to the Board minutes of Council of the 7th of November, 1729, in order to shew that, by establishment, the articles in his accounts of house rent and salary were settled upon him; but Mr. John Sharpe observed that, that was not an establishment of annual charges of the government, but only an estimate laid before the Council of the charges to be provided for that year.
Mr. Joshua Sharpe in behalf of Mr. Smith, said he hoped it had been made to appear at the last meeting, that the Act in question, being of itself a temporary law, and having a perpetual clause in it, being passed by the President in the absence of the Governor, although no immediate necessity for it, and being in its consequences a manifest abridgement of the profits of Mr. Smith, as one of the king's patent officers, had been passed in direct opposition to the 34th and 57th articles of the Governor's instructions; that it having been made to appear that the secretary or his deputy had constantly received fees for all publick business done by them for about 21 years passed; he said, he hoped that was sufficient to plead a prescriptive right; and that it likewise appeared from the payments that had been made upon this account, that the £60 a year, now allowed to Mr. Smith by the Act in question, was not an adequate allowance for the business he was obliged to do; that the taking away a patent officer's fees was an act of a very extraordinary nature; and that although Mr. Smith had not produced a docket of fees, yet he hoped the Board would be of opinion that the several accounts of these fees, having been regularly allowed for so many years back, and constantly paid, would amount to an equal authority.
Mr. John Sharpe then said that Mr. Smith's fees could never be deemed of equal authority, as if settled by docket, because it had been made appear that they vary; nor could he conceive that any authority would give him a right to demand fees for publick business, so long as the Governor's 29th instruction subsisted, obliging the secretary to furnish the Governor with transcripts of all Acts and publick orders, as shall be made from time to time, together with copies of the journals of the Council, in order to be transmitted to his Majesty, and to this Board, upon pain of incurring the forfeiture of his office; that Mr. Smith, although he had carried his evidence back as far as the year 1714, by producing accounts of payments made to Mr. Lyddell, yet he had not made it appear for what those payments were made, they not having been paid to Mr. Lyddell as secretary, nor any account of fees due to him, demanded of the publick; that the foregoing payments appear to have been made to Mr. Lyddell, secretary, not as fees, but for his account against the publick of the island; and that it was well known Mr. Lyddell had served the publick in some cases as a merchant. Mr. Sharpe observed further, that deducting from Mr. Smith's account of fees, his salary, house rent, book, pens, ink, paper, and his charge of attending the Council, the remainder being for publick business, would not amount to more than the salary allowed him by Act of Assembly; and therefore hoped their lordships would be of opinion that the Act in question had done Mr. Smith no prejudice in his office.
The Board resolved to take into consideration the other Act, complained of in Mr. Smith's petition, read the 1st instant, passed at St. Christophers in 1733–4, for reducing the fee of 3s. per sheet taken by him as clerk in Chancery for the copies of bills and answers etc., on Wednesday morning next, and desired the gentlemen present would then attend again.
The secretary then acquainted the Board that Mr. Paxton, in behalf of Mr. Forbes, the Provost Marshal of Jamaica, had desired their lordships would postpone the consideration of the Jamaica Act passed in June 1735, and entituled, An Act for the more effectual directing the Marshall's proceedings and regulating thereof, which was appointed for to-morrow morning, till some day next week, and the Board agreeing upon this day sennight, ordered that all parties should have notice thereof.
The report to the Lords of the Committee, with copies of the several papers, desired by their lordships' order of the 3rd instant, and read the 19th, to be laid before them, in relation to the suspension of Mr. Van Dam, late one of the Council of New York, was agreed to and signed.
An order of the Committee of Council, directing the Board to prepare the draught of an instruction to the Governor of South Carolina, directing him to recommend to the Assembly to make the neccessary provisions for erecting a gaol, and keeping the same in repair, was read; and the secretary laying at the same time the draught of such an instruction, the same was agreed to, and a report, for inclosing thereof to the Lords of the Committee, was signed.
The draught of a report upon the petition of the merchants of London, Bristol and Liverpool, complaining of several hardships that they lye under, in their trade to the plantations, read the 15th of April last, was again considered, and a progress made therein.
The Board take again into consideration the draught of the report, mentioned in the minutes of the last meeting, upon the petition of the merchants of London, Bristol and Liverpool, complaining of several hardships that they lye under in their trade to the plantations, and made a progress therein.
Copy of an order in Council of the 21st May, 1736, approving a representation of this Board for confirming an Act passed in Jamaica in 1735, for enabling Mary Howell to sell part of her deceased husband's estate for payment of his debts.
Copy of an order in Council of 29th April, 1736, approving a representation of this Board and a report of the Lords of the Committee of Council in favour of Mr. McCulloch's petition for 132,000 acres of land in North Carolina.
Mr. Smith, secretary to the Leeward Islands, attending, as he had been desired, as also Mr. Coope, agent for the said islands, with the several gentlemen, who were at the Board on Thursday last, Mr. John Sharpe in behalf of Mr. Coope presented to the Board a paper containing some remarks he had made upon the list of fees taken by the secretary of the Leeward Islands, and Mr. Smith desiring a copy thereof, it was ordered accordingly.
The Board then took into consideration the Act of St. Christophers appointed for this day, entituled, an Act for reducing the fee of 3s. per sheet taken by the secretary as clerk in Chancery for copies of bills etc. and the same was read.
Mr. Smith then produced to the Board a minute of the Council of St. Christophers of the 9th February, 1733–4, and it appeared thereby that his deputy had petitioned the Council to be heard against the said Act. He likewise produced another minute of the 14th of the same month, the day appointed for hearing him upon the said petition, but it appearing thereby that he had procured no counsel to appear for him, and that he could get none, the Act in question was passed; and Mr. Smith inferred to the Board from hence, that the Council of St. Christopher's did not allow him a sufficient time to make his objections to the said Act, before the passing of it. He then referred to the Act of 1715–16 for regulating and appointing the fees of the several officers and courts of this island to shew that his fee of 3s. a sheet was a fee established to him as clerk in Chancery, for copies of all bills and answers etc., which fee was by the Act in question reduced to 1/6 per sheet, although it was a customary fee, established by the aforementioned Act, and had been taken without any complaint, for upwards of twenty years.
Mr. John Sharpe in support of the Act, said that the fee of 3s. could not be called a customary fee, because it was first created by the Act of 1715; that in all the plantations the officers' fees have been settled by Act of Assembly; and as Mr. Smith allowed the power of the Assembly to examine and regulate fees, by his claiming them under the Act of 1715, he must likewise admit, that they had a power of varying them, as they should find occasion; that the legislature did not intermeddle in this affair, until complaints from the suitors in the Court of Chancery were made to them, and that previous to the bringing in any bill, a committee was appointed to examine therein, who having reported their opinion to the House, that they found the fee in question was a hardship, grievous to the suitors in the Chancery Court, the Assembly passed the bill; that when the bill was sent up to the Council, Mr. Smith's deputy was called upon, and a day appointed for hearing him, but he not producing counsel, and alledging he could get none, they likewise passed the bill; that the bill was passed in conformity to his Majesty's 23rd instruction, having a suspending clause inserted therein; that he hoped the Board would be of opinion that the Act is a reasonable one, as it tends to render justice easy to be come at, and is in imitation of that examination lately commenced at home, of the fees in the several law offices; that the fee, now given to Mr. Smith of 1/6 a sheet, is a larger allowance than what is taken at home here, for 90 words 10 pence only is taken and that 2 pence is the charge of the stamp duty, and the remaining 8 pence is divided between two offices, vizt., the six clerks and the 60 clerks office; whereas Mr. Smith receives a fee of 1/6 for every 120 words, which allowing the difference of exchange, is about ⅓ more than is taken for the same business in the Court of Chancery here; that for the same business in Barbados, the fee is only six pence, and in Antigua, by an Act passed in 1696, the clerk in Chancery receives only a fee of 8 pence a sheet, containing sixteen lines, and fourteen words in every line.
Mr. Sharpe then observed to the Board that Mr. Smith had not shewn his right to any fee, as clerk in Chancery before 1715; that when the Act passed in 1715, for regulating and appointing the fees of the several officers etc., there were very few proceedings in the Court of Chancery, and even that was carried on in a very concise manner; but that at present, the business of that Court was grown very extensive, and bills and answers were become more voluminous than in this kingdom; and that therefore, although the fee of 3s. might have been reasonable at first, when the business was in a narrow compass, it highly became the Legislature, to reduce that fee, when the business was grown so extensive, and more especially since the great charge of Mr. Smith's fees deterred people from making their application to the Chancery Court; that Mr. Smith, whenever any party has appealed from the decree of the Court, and that they required authentick copies of the proceedings to transmit to this kingdom, they have been obliged to take out copies de novo, Mr. Smith having refused to authenticate those, they had before paid him for.
Mr. Sharpe then desired Mr. Brown, Mr. Spooner, Mr. Stringer and Mr. Tittle, a clergyman, would give the Board an account of what they knew concerning this affair, and they being respectively sworn at the request of Mr. Smith; Mr. Brown said, that before the year 1715, little or no business was done in the Court of Chancery by way of bill and answer; that injunctions and other orders of that court have issued upon a verbal application made to them, but that of late years the business of that court was become as extensive as in England; that frequent complaints have been made of the exorbitancy of Mr. Smith's fees; that he had often received more for copies of bills and answers, than the Council had received for drawing them, and that upon this account people were deterred from making their application in that court; that he had often advised them, rather to submit, than to undertake so expensive a prosecution.
Mr. Spooner then said that people had frequently complained of the 3s. fee demanded by Mr. Smith; that it had prevented people applying to the Court of Chancery, and that he had often advised them to desist; that before the year 1715 there was little or no business done in that court; that from 1714 to 1718, there were but three causes, and they went no farther than bill and answer; that Chancery business was now carried on in the same manner as in England; and that upon appeals, Mr. Smith had made people pay twice for the same copy of proceedings, before he would authenticate the business of the asked by Mr. Smith in what proportion the business of the Court of Chancery was increased, he said he could not be certain, but that he believed it might now be three times as much as formerly it was.
Mr. Tittle acquainted the Board that he was lately engaged in a Chancery suit, and that he had taken copies of several of the proceedings, but that having appealed to the king from the decree of the court, Mr. Smith's deputy had obliged him to take out new copies, in order to their being authenticated; and produced to the Board the bill of fees for that purpose, and a receipt upon it, under the hand of Mr. Smith's deputy.
Mr. Stringer said that when he went to the Leeward Islands, he was private secretary to the Earl of Londonderry, who was then Governor, and that he has several times been by, and has heard his Lordship reprimand Mr. Smith, on account of complaints that had been made to him of his taking exorbitant fees; that he had heard his Lordship particularly say, that he would support him in his legal fees, but that he never would in his extravagant demands.
Mr. Joshua Sharpe in behalf of Mr. Smith, desired to observe to their lordships by way of reply, that although Mr. Smith had not produced any proofs that the 3s. fee had been demanded and taken before the year 1715, yet the Act then passed for establishing his fees, could only be looked upon as declaratory of what were the secretary's fees before that time, and therefore he hoped their lordships would be of opinion, that the 3s. fee was a customary fee, notwithstanding what had been observed on the other side; but that supposing it was not, yet as it was made a legal fee by the Act of 1715, and as Mr. Smith had given a valuable consideration for his office, since the passing of that Act, it seemed very unjust that his right should afterwards be taken from him.
The Board then resolved to consider further of this Act, and of that mentioned in the minutes of the 10th and 17th instant, entituled, an Act for granting to his Majesty a duty of 8s. per poll on all negroes etc., and for ascertaining and settling the salaries of the several officers therein mentioned, at another opportunity.
Mr. Forbes, Provost Marshall of Jamaica, attending, as he had been desired, with Mr. Paxton, his solicitor, in order to be heard against an Act passed in that island in 1735, entituled, an Act for the more effectual directing the Marshall's proceedings, and regulating thereof, and Mr. John Sharpe, agent for the island, likewise attending, the Board took the said Act into consideration; and Mr. Paxton observed to the Board that this Act was passed in opposition to several of the king's instructions, vizt., the 20th, 23rd and 52nd; that by the 20th instruction, no law, once enacted, could be repealed, but by a law, with a suspending clause to prevent it's taking effect, till the king's pleasure is known upon it; that this law in many particulars alters the Act for regulating fees, passed at Jamaica in 1711, and has no suspending clause inserted therein; that by the 23rd instruction the President of the Council, when Commander in Chief, in the Governor's absence, is restrained among other things, from passing any law, except such as are immediately necessary for the peace and welfare of the said island, and that this Act could not be considered in that light; that by the 52nd instruction the Governor has a power invested in him, of suspending any patent officer or deputy from the execution of their places, until he has represented the whole matter to his Majesty, and received his directions therein, and that therefore if Mr. Forbes's deputy had in any way transgressed that instruction, the Governor ought to have suspended him, and not to have assented to any Act for depriving Mr. Forbes of any of the rights of his office; and further that as Mr. Forbes and his deputy are liable to prosecution, there could be no occasion for the Act in question; that Mr. Forbes was appointed Provost Marshal of Jamaica by his Majesty in the 3rd year of his reign, and that having never by himself or deputy taken any fee, but those prescribed by the aforementioned Act of 1711, his deputy had made his application to the Legislature against the present Act before it was passed, but that he was refused to be heard. Mr. Paxton then observed that by the Act of 1711, the Provost Marshall is allowed a fee of 3d. per mile, when he is to serve any writs or other process in any part of the island; and that although by this Act, the said 3d. a mile is said to be continued, yet the distances thereby settled are much less than they really are; that the fee upon a Ne exeat Insula is less than it formerly was, and that in the former Act this fee is comprehended under the denomination of writs issuing out of the Court of Chancery; that in the clause relating to levies, the Provost Marshal is obliged to give notice to the defendant; that this is a very improper clause, as it may give the defendant an opportunity of moving his effects; that by this Act, the Provost is to have poundage only, for such effects as are found, and not for the whole debt, which is contrary to the custom in this kingdom, where the sheriff always takes poundage for the whole debt; that by this Act, he is to have no fee until the plaintiff's debt is satisfied, and that consequently, after the Provost Marshal has been at the charge and trouble of making the levy, any collusion between the plaintiff and defendant would deprive the Provost Marshall of his fees; that the clause enacting that, after an execution lodged, if no proceedings are had thereon for the space of one year, the execution is to have effect, is contrary to the Statutes of Frauds passed here in the 29th of Charles 2nd Cap: 3rd; and may often be the means of defrauding just creditors, as their hands are thereby tied for one year, after any one creditor shall have entered his execution; that another clause enacts that all writs shall be returned in eight days, which is impossible to be complied with; that the clause obliging the Provost Marshal to appoint a deputy in every precinct, is a very great hardship upon him, there being but very few people there who could accept the office, and give security; and that the clause seemed the less necessary, because there was but one gaol; for these reasons Mr. Paxton submitted to the Board, whether this Act was not proper to be repealed.
Mr. Sharpe then in behalf of the Act said, that as the preamble of the Act in question mentioned several and great abuses, that had been committed by the Provost Marshall's deputy in Jamaica, it shewed the necessity there was to pass the Act, and was therefore a justification of the President in having done it, according to the tenor of the 23rd instruction; and that as the 3d. a mile, allowed by the former Act of 1711, was continued by this, the Act could not be said to repeal the former in that respect, and therefore was not contrary to the 20th instruction; that as a greater fee had been demanded and taken, than the 3d. per mile allowed by the former Act, the distances settled by this Act, were not intended to abridge the Provost Marshall of any just fee, but that equal justice might be done between the Provost Marshall and those who were to pay the same; that in many cases the fee allowed to the Provost Marshall, for serving process within the parishes mentioned in the Act, was rather an advantage than otherways to the Provost Marshall, because he will thereby receive the same fee for service in any part of the parish, and very often, he may not be obliged to travel half a mile, and yet will be entituled to receive as much, as if he had been to the furthest extent of the parish; that with regard to writs issuing out of the Court of Chancery, no abatement was made by this Act in his fee, but care was taken to prevent more being demanded, as formerly had been done; that as to the clause obliging the Provost Marshall to give notice of levys being made, he could not foresee any objection thereto, because the notice must be subsequent to the levy, and that the reason of giving notice was, that the defendant might have an opportunity of discovering his personal estate, which by an Act, passed at Jamaica in 1683, entituled, An Act for establishing courts and directing the Marshal's proceedings, is to be seized upon, prior to negroes or such things, without which the business of a plantation cannot be carried on; but if nothing else can be found, then negroes or any thing else may be seized; that he thought the clause directing the Provost Marshall to take poundage only for such part of the debt as the plaintiff shall recover, was a most reasonable clause, because otherways it would be a very great hardship upon the plaintiff; that the clause obliging the Provost Marshall to keep a deputy in every precinct, was enacted for the ease of suitors, and in conformity to the custom in England, there being here a sheriff in every county; and that the profits of the Provost Marshall's place might well afford it; that notwithstanding it was advanced by Mr. Paxton, that there was but one gaol in Jamaica, yet it appeared by the Act itself, that there were three, and that the Provost was obliged to publish a list of such negroes as were in the gaols of St. Iago, Port Royal and Kingston. As to Mr. Paxton's objection to the clause declaring an execution to have no effect, if no proceedings has been had thereon for the space of a year, he said he thought it a very reasonable clause, because otherwise a debtor might get a friend to take out execution, and thereby protect his goods and person for what time he pleased. As to the clause obliging the Provost Marshall to return all writs in eight days, he said he thought it a very reasonable clause, because it would then ascertain what has been levied; that the eight days were by the Act itself to be reckoned from the meeting of the Supreme Court, that that was sufficient time, and that cases would often happen where he would have three months; that as to what Mr. Paxton had observed upon the 52nd instruction, impowering the Governor to suspend patent officers; he said that passing the Act in question, was a much more mild way of acting, because during such suspension, he would have been deprived of half the profits of the place; that Mr. Paxton had offered no evidence to prove that the Assembly had refused to hear Mr. Forbes's deputy against the Act, and he said, he could not imagine it true. Mr. Sharpe concluded by desiring in behalf of the island that the Act might not be repealed.
An order of the Committee of Council, dated 14th August last, referring to the Board a petition from Messrs. Joseph and Samuel Wragg, praying for two tracts of land of 12,000 acres each, was read, and the Board agreed to consider further thereof. [v. 16th September and 12th November following].
Two letters from Governor Fitzwilliam, dated the 20th August and 22nd of December, 1735, with five papers inclosed, relating to duty laws in force, and to a vessel seized by the Spaniards, were read; ordered that a letter be prepared for inclosing to the Duke of Newcastle, an extract of so much of the said letter, as relates to the vessel seized by the Spaniards, and to the state of the troops there; and that a letter be prepared for inclosing to the Secretary at War so much as related to the troops only.
Letter to the Duke of Newcastle, with extract of letters from Governor Fitzwilliam, relating to a ship taken by the Spaniards, and to the independent company there, ordered to be prepared at the last meeting, was agreed to and signed. The letter, likewise ordered to be prepared at the last meeting, inclosing an extract from Governor Fitzwilliams, relating to the independent company there, was agreed and ordered to be sent.
The report to the Lords of the Committee, upon the petition of the merchants of London, Bristol and Liverpool, relating to some hardships they lye under in their trade to Jamaica, mentioned in the minutes of the 22nd instant, was agreed to and signed. The Board then adjourned to Tuesday, the 3rd of next August.