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 1737
Thursday, June 2. Present:—Earl Fitz-Walter, Mr. Pelham, Col. Bladen, Sir A. Croft.
The Board took into consideration the draught of the report to the Lords of the Committee, upon the subject of Lord Baltimore's petition against the appointment of a Governor of the three lower counties, by the proprietors of Pennsylvania, ordered to be prepared at the last meeting, and the same was agreed to.
Friday, June 3. Present:—Earl Fitz-Walter, Col. Bladen, Mr. Brudenell.
The representation to the Lords of the Committee of Council upon the Lord Baltimore's petition against any Governor being appointed by the proprietors of Pennsylvania for the three lower counties, agreed to yesterday, was signed.
A letter from Mr. Davie, Secretary to the Salt Office, inclosing the several accounts of the value of salt, was read.
Two letters from Major Gooch, Lieut. Governor of Virginia, dated 5th December and 21st of February last, inclosing Acts and publick papers, was read, and directions were given for sending the said Acts to Mr. Fane for his opinion thereon, in point of law.
A letter from Mr. Ashe to the Board, recommending William Popple, Esqr., to be the Solicitor and Clerk of the reports, in the room of Mr. Burrish, was read, and Mr. Popple attending, the Board were pleased to appoint him accordingly.
A letter from Mr. Broughton, Lieut. Governor of South Carolina, dated 20th February last, concerning the intended invasion from the Spaniards, was read; but this containing nothing new, since the Board's letter to the Duke of Newcastle of the 9th of November, 1736, upon this subject, gave no further directions upon it.
Monday, June 6. Present:—Earl Fitz-Walter, Col. Bladen, Mr. Brudenell, Mr. Plummer.
The Lord Shaftesbury, Lord Egmont, Lord Carpenter, Mr. Oglethorpe, Mr. Vernon, Mr. Laroche and some others of the Trustees of Georgia attending, as they had been desired, with Mr. Clarke and Mr. Murray, their Counsel, and Mr. Paris, their Solicitor, as also Mr. Fury, agent for South Carolina, with Mr. Solicitor General Strange and Mr. Brown, Counsel in behalf of that Province, and Mr. John Sharpe, their Solicitor; the Board took again into consideration the two orders of the Committee of Council, mentioned in the minutes of the 19th of the last month, referring to the Board two petitions from South Carolina and Georgia, the first complaining of several obstructions given to the trade of South Carolina by the persons employed in the Government of Georgia, the latter complaining of the Governor, Council and Assembly of South Carolina, for having opposed the execution of an Act approved by His Majesty, for maintaining peace with the Indians in the province of Georgia, and for having passed an ordinance for asserting and maintaining the right and privileges of His Majesty's subjects of this Province of South Carolina to a free, open and uninterrupted trade with the Creek, Cherokee, and other nations of Indians, etc., in contempt of the said Act.
Mr. Brown, Counsel for Carolina, produced to their Lordships the affidavits of Mr. Green, Mr. Cromby, and some others, relating to the people of Georgia having fired a gun to oblige some vessels to bring to at New Savannah Town in Georgia, notwithstanding they were bound from Charles Town in South Carolina up the River Savannah, to Old Savannah Town, now called New Windsor in the said Province, and had a permit from the Governor to carry thither some rum for the use of the garrison, which rum was nevertheless seized and staved by the Naval Officer at New Savannah in Georgia, which affidavits were severally read, as also the aforementioned Ordinance.
Mr. Brown then said that he conceived the questions before their Lordships were:
1st. Whether by the Georgian law for regulating the Indian Trade, Carolina is excluded from trading with any Indians within the limits of Georgia.
2ndly. Whether the navigation of the river Savannah was not free and open to all His Majesty's subjects.
3rdly. Whether the aforesaid Ordinance was not a legal Act of the Legislature of Carolina.
But first he premised that the Indians within the limits of Georgia were not reckoned subjects, but allies to his Majesty; That the trade between them and his Majesty's subjects of South Carolina had subsisted for above 70 years; That in the year 1707 the people of Carolina, not willing that any other colony should share the Indian trade with them, had passed an Act, laying so high a duty upon all goods proper for the said Indian trade imported in that Province, that it amounted to a prohibition; That the Virginia traders complained of this Act, as it entirely interrupted their trade with the said Indians, and that the said Act had been repealed, as prejudicial to the right of the subject, notwithstanding it had been confirmed by the then Lords Proprietors of Carolina. After this, another law was passed in Carolina, by which it was made penal to trade with the said Indians without a licence from the people of Carolina for that purpose; That the people of Virginia again complained of this law as an infringement upon their trade, and the law was accordingly repealed. After this, they never made any other attempt to exclude others of his Majesty's subjects from trading with their Indians, but made several good regulations for carrying on the said trade, binding to none but to the people of their own Province.
That by the Georgia Charter, which is to subsist during 21 years, no land, settled prior thereto, was granted to the trustees, so that all the land contained within the bounds limited by that Charter, was not granted to them; That part of the land within the said bounds, being settled by the Cherokee and other Indians, remains their property. But that the Georgia trustees not only set up a right over these Indians, but over their neighbours of Carolina in point of trade. For by the Georgia law all persons, trading to the Indians within the limits of Georgia, were obliged to take out licences from Georgia under the penalty of £100, and forfeiture of their goods, but no power was given to imprison, notwithstanding they had exercised that power, as appears by some of the aforementioned affidavits.
That this law cannot affect the people of Carolina, nor any but the inhabitants of Georgia themselves; That it could never have been the intent of the Crown, to have given by that law this exclusive privilege to the people of Georgia; That supposing even it had been the intent, yet it was not in the power of the Crown to make such a grant; That the right of trade cannot be taken from any of his Majesty's subjects, but by Act of Parliament.
That the western bounds of Georgia not having yet been settled, it does not appear that the Indians, to which the people of Carolina have for so many years traded, are within their bounds. That the Crown cannot gain any right, but by conquest or cession. That the land of which the said Indians were possessed, not being the property of the Crown, could not be granted to the trustees of Georgia; That the said Indians had made several Treaties with the Crown, and therefore could not be reckoned subjects, but allies. And that therefore, although the people of Georgia might have a power to make regulations for themselves, in regard to their trade with these Indians, yet their regulations could not bind the said Indians; That with regard to the trade carried on between South Carolina and the said Indians, the same caution was observed, in relation to licences and security as in Georgia, and that therefore the Georgia law, obliging the Indian traders from Carolina to take their licences, and give their security in Georgia, could be of no use but to monopolize the Indian trade to themselves.
That if this law can bind the Province of South Carolina, it will likewise be binding to Great Britain and the other Plantations, and as in consequence no trade would be carried on with these Indians but by the people of Georgia, they might set what price they please upon their commodities, and thereby drive the Indians to trade with the French or Spaniards, to the great loss of the trade of Great Britain, by stopping the vent of such British manufacutres as are purchased by the people of Virginia and the other plantations, for their Indian trade; That the people of Georgia had been very partial in the execution of this law, there being no one instance of any Virginian trader having felt the rigour of it; and therefore he hoped that the people of Carolina might expect the same justice in their present complaint, as the people of Virginia had formerly received in their complaint against Carolina, upon the same subject.
With regard to the navigation of the Savannah River, Mr. Brown observed, that every river was a common highway, the right of every subject; that the towns of Purrysburgh and Old Savannah must receive their provisions from Charles Town by this river; That the people of South Carolina do not want to carry any goods into Georgia, which are prohibited by the laws of the Province; That the vessels from Carolina, which had been stopped at Savannah in Georgia, were fired at from thence, and obliged to bring to, and that the rum they had on board, although designed for Old Savannah in Carolina, had been seized and staved, which is not warranted by their own law, unless imported into Georgia; But that as this was not the case, he hopes some reparation. would be made them for their loss.
That the aforementioned Ordinance, passed in South Carolina, was intended to protect the innocent trader, who should suffer in Georgia on account of his trade with the Indians, and to repay his loss; That therefore it was a false suggestion in the Georgia petition, to say, that this Ordinance repealed the Georgia law, it being only temporary, intended to make satisfaction to such Indian traders from Carolina, and to repay such losses as they might sustain, on account of the aforementioned Georgia law, until his Majesty should think fit to determine upon their petition against the same; And that it had been very usual in Carolina to pass Ordinances instead of laws, and with the same effect.
Mr. Clarke then, Counsel in behalf of the trustees, observed to their Lordships, that an open and free trade with the Indians, in the manner contended for by the people of Carolina, might be productive of infinite disorders; That no trade can properly be called free, that is not well regulated, and that the regulations, now enacted in Georgia, are of advantage both to Georgia and Carolina; That the places where the violences complained of are said to have been offered, are within the bounds of Georgia; That in the Georgia Charter, the Province is bounded by the Northern stream of the Savannah river and Southern stream of the river Alatamaha, (fn. 1) and that the bounds run Westerly from the heads of those rivers to the South Sea, and that the people of Carolina has passed the Savannah, in order to trade with the said Indians.
Mr. Clarke further observed that if the people of Carolina contended that the Georgia Indians are not bound by the Georgia laws on account of their being allies, and not subjects to the Crown of Great Britain, that could not be the case, because the dispute was only between the king's subjects in Georgia and his subjects in Carolina; That according to the Carolina way of reasoning, the people of Georgia themselves, when in the Indian country and trading with them, are out of Georgia, and consequently not subject to the Georgia laws. That the two Carolina laws beforementioned of 1707, and 1711, said to have the same effect as this, at present complained of in Georgia, were very different, and were repealed, because they amounted to a prohibition of trade, all his Majesty's subjects being obliged to take out licences in Carolina in their passage through that Province for that purpose, all Indians in amity with them being included in the same law, whether they were within the bounds of Carolina, or not; That the licence now granted in Georgia to such as trade with their Indians is the same as what was given before Georgia was separated from Carolina; That it could be no hardships to take out licences from Georgia, because part of Carolina was as far from Charles Town, as from Savannah in Georgia. That if any Carolina Indian trader should cheat or abuse the Indians, they would apply themselves to the people of Georgia for redress, in which case it would be hard for the people of Georgia to send as far as Charles Town, to put his security in execution.
That there is no one instance of a licence having been refused in Georgia, to a Carolina Indian trader or a Virginian trading with the Georgia Indians: That the licences had only been granted to the Carolina Indian traders: That the fur trade has considerably increased, ever since the establishment of Georgia, and is now four times as great. That before the regulations had been established in Georgia for carrying on the Indian trade, rum and spirits had been introduced amongst them, and being intoxicated, they were cheated by the traders, and that therefore the Georgia trustees had passed a law to prevent the importation of such spirits: That the Georgia law for regulating the Indian trade, can by no means occasion a monopoly, as is pretended, since every one was free to trade with the Indians, taking out a licence: That it was the interest of Georgia to do the utmost in their power to preserve the friendship of the Indians, and to prevent their falling into the hands of the French and Spaniards: That the Indian trade within the bounds of Georgia, being now under the same regulation, as when under the direction of Carolina, was of the same advantage to this Kingdom: That there was never so much peace with the Indians as since the establishment of Georgia; And that the Indians were never better pleased, than under the present regulation of trade.
That with regard to the navigation of the Savannah, there could be no contest, because as the stream of that river at the mouth is divided by an island, and as the Northern stream is large and navigable, no vessel from Carolina would come into the Southern stream, but on account of prohibited trade. That there had been no interruption in the navigation of the Northern stream: That the vessels, whose rum had been staved, were actually in the Savannah Port, otherwise they would not have been molested.
With regard to the violences said to have been committed upon the Carolina Indian traders, Mr. Clarke observed, that the affidavits to this purpose were mostly hearsay, and contained some facts committed since the presenting the Carolina Petition, and therefore could not be proper evidence in support of it.
That the person called an Indian trader, said to have been ordered to be whipped, was a soldier, who by his officer's command was to have been punished. But that this circumstance happened two years before the Georgia law was passed.
Mr. Clarke said further, that the Trustees of Georgia do not complain of the Carolina Ordinance as such, but as it was hastily obtained upon a summons after the Assembly was adjourned: That it must be considered as a vote of credit to incourage and indemnify the people of Carolina to go to Georgia, and thereby trading with the Indians, break through the Georgia law; And that as it seems set up in opposition to the said Georgia law, which was confirmed by the Crown, he hoped, their lordships would show no countenance to it.
The Board then agreed to proceed further in the consideration of this affair on Thursday morning next at ten o'clock, and desired all parties would attend accordingly.
Tuesday, June 7. Present:—Earl Fitz-Walter, Mr. Plummer, Col. Bladen, Sir A. Croft.
Mr. John Sharpe.
Letter from the agents of Antigua, St. Christophers, Jamaica, containing their answer and observations upon Lord Waldegrave's letter, sent to them the 20th ult., relating to French proposals for regulating the navigation between the English and French in America, was read. Ordered that Mr. Wilks, agent for New England, be desired to attend the Board to-morrow morning, if he have any observations to make upon the abovesaid answer.
An order of the Committee of Council, of 27th May, 1737, referring to the Board 7 Acts passed in the Province of the Massachusetts Bay in July, 1736, to examine the same, and report their opinion thereon, was read, and orders were given for sending the said Acts to Mr. Fane, for his opinion thereupon, in point of law.
Wednesday, June 8. Present:—Earl Fitz-Walter, Mr. Pelham, Mr. Brudenell, Mr. Plummer.
The Secretary acquainting the Board that Mr. Noden, agent for Bermuda, desired the Board would please to appoint some day to consider two Acts, entituled, An Act for laying a Duty of Tonnage on the vessels therein mentioned, and An Act to prolong the Duty of Tonnage layed by the aforesaid Act, the said Acts, and Mr. Fane's reports thereon, were read, and the Board appointed Tuesday next for that purpose, and ordered that Mr. Noden and Mr. Leheup, agent for New York, should attend at the same time.
Letter from Lord Harrington, dated June 3rd, 1737, transmitting the copy of a letter and six papers inclosed with it, from Mr. Guy Dickens, His Majesty's Secretary at Berlin, relating to a complaint of the British merchants at Konigsberg, was read, and directions were given, that the French papers inclosed, be translated.
Mr. John Crawford, attending in behalf of Mr. Skene and Abercromby, whose petition was read the 24th ult., praying for some allowance in consideration of their having run out the bounds between this Province and North Carolina, and desiring the Board would please to consider the same; Mr. Abercromby, one of the petitioners, being very ill in Scotland, and not able to attend the Board, their Lordships took the said petition into their consideration, and gave directions for preparing the draught of a representation thereupon.
Letter from Mr. Cleland, of the 24th June, 1736, transmitting the Naval Office lists of vessels entered and cleared at South Carolina for the quarters ended at Lady Day and Midsummer, 1736, was read.
An account of the imports and exports of South Carolina from 1724 to 1736, with the number of vessels entering and clearing out, in 1736, was read.
Letter from Mr. Willard, Secretary of the Massachusets Bay, dated the 23rd December, 1736, transmitting minutes of Council, the Assembly and Acts of that Province, for the last half year, ending in August, 1736, was read.
Letter from Mr. Partridge, inclosing votes of the House of Representatives in 1736, was read.
Letter from Mr. Bradley, Attorney General of New York, to the Board, dated the 23rd of November, 1734, inclosing the copy of a Bill for regulating costs upon prosecutions by information, and complaining of the injustice of the said Bill, and of unfair usage he meets with from the Assembly there, and of the Assembly's tacking of Bills derogative to the Crown to money Bills, was read; but the Act not having been passed, this letter is of no further consequence.
Letter from Mr. Sackett, to the Secretary, dated at New York, the 14th of January, 1734/5, giving account of great quantities of timber fit for his Majesty's Navy, growing in New York, the Carolinas etc., and soil, good for raising hemp, was read.
Order of the Lords of the Committee of Council, dated the 21st of April, 1736, directing the Board to lay papers before the Attorney and Solicitor General, relating to Governors of plantations voting as Councillors, was read.
Letter from Mr. Gray, inclosing some further consideration of the consequence of the Bill now depending in the House of Lords, relating to the dispute of the trade of the British Colonies in America etc., was read.
Order of the Committee of 22nd March, 1733/4, referring to the Board the petition of Sir Charles Payne for the island of St. John's, one of the Virgin Islands, part of which he claims a right to, and complaining that some Danes have settled on part of it, was read; and the Board agreed that this petition should lye by, till some person should make application to the Board, upon the subject thereof, no application having yet been made.
Letters from Mr. Cole, dated in March and April, 1735, with a project for finding out mines of copper, lead or iron ore in Newfoundland, or other plantations in America, was read.
Two letters from Capt. Pitt, Governor of Bermuda, dated the 6th of November, 1736, to the Board and the Secretary, desiring leave to return home for six months, was read; but the Board having inclosed in their letter to the Duke of Newcastle, of the 10th ult., an extract of a letter from Capt. Pitt, of 25th March last, desiring leave to come home, the Board agreed to take no notice of his letter of 6th November abovementioned.
Case of Mr. Cressop, complaining of his house being set on fire, and himself and others unjustly imprisoned, and one killed by a sheriff and his posse of Pennsylvania, with the copy of a letter from the Governor of Maryland to the President and Council of Pennsylvania thereon, was read. (Received from Mr. Sharpe.)
Memorial of Messrs. Jennings and Dulany to the President and Council of Pennsylvania, relating to Mr. Cressop's case, with an answer thereto in December, 1736, was read. (Received from Mr. Sharpe.)
Memorial delivered to the President and Council of Pennsylvania, in December, 1736, relating to the ill treatment of Mr. Cressop, was read. (Received from Mr. Sharpe.)
Letter from the President and Council of Pennsylvania to Messrs. Jennings and Dulany, with an answer thereto, in December, 1736, relating to Mr. Cressop's case, was read. (Received from Mr. Sharpe.)
Address of the Assembly of Maryland to the Lord Baltimore, complaining of incroachments and ill usage from the Province of Pennsylvania, in relation to the frontiers and boundaries of the said Provinces, with 3 papers annexed, proving some arbitrary proceedings in the Court of Judicature at Philadelphia, was read; but the Board having, in their report to the Lords of the Committee of the 3rd instant, relating to the appointment of Col. Thomas, for the government of Pennsylvania and the three lower counties, declared their opinion, that while the controversie between Lord Baltimore, proprietor of Maryland, and Messrs. Penn, proprietors of Pennsylvania, was depending in the Court of Chancery, it was not proper to take into consideration the subject matter of the above papers, the Board agreed that the said papers should lye by. (Received from Mr. Sharpe.)
Thursday, June 9. Present:—Earl Fitz-Walter, Mr. Pelham, Col. Bladen, Mr. Brudenell, Mr. Plummer.
The Trustees for the colony of Georgia, Mr. Fury, agent for South Carolina, with the same counsel, who attended the Board, the 6th instant, attending again, according to appointment.
The Charter, establishing the colony of Georgia, was read, as also the two Acts, passed by the Trustees in 1734, relating to the Indian trade and to the prohibition of rum. And
Mr. Stevens being sworn, and asked several questions, relating to the Savannah river, and to the rum, which was staved at New Savannah, as mentioned in the minutes of the 6th instant, he said,
That he had been several times at New Savannah: That the town lies on the South side of the river: That Hutchinson's Island, a large island, lies in the Savannah river, over against the town, and divides the river there into two streams: That the North stream is as broad as the South stream, and is navigable for large boats: That the boats loaden with goods for the Indian trade commonly draw about three or four feet water: That the North stream is the shortest passage these boats can take, from Charles Town to Old Savannah Town in Carolina, now called New Windsor: That the tide flows about 16 miles above New Savannah: That there are very few sailing boats upon the river.
That he was at New Savannah, when the rum aforementioned was staved: That he knew Mr. Shepherd, to whom the rum belonged: That he saw his permit from the Lieut. Governor of South Carolina to carry rum to Old Savannah: That Shepherd said, he should now see what they would do with him at New Savannah, having letters to deliver there: That on the 19th of April, he saw Shepherd's boat under seizure, and heard his rum had been staved: That he did not apprehend Shepherd intended to sell his cargo at New Savannah, it consisting of blankets, and goods only proper for the Indian trade.
Mr. Clarke then produced several affidavits to prove, that Shepherd's boat went up directly to the landing place at New Savannah; As also that the Cherokee, the upper and lower Creek nations of Indians, were situate between the two rivers Savannah and Alatamaha, and consequently within the bounds of Georgia.
Mr. Charles Wesley, Secretary for the Indian affaires in Georgia, being sworn, produced the copy of a licence to one Samuel Brown, an Indian trader, and declared no other draught had been used, nor had it been refused to any Carolina man.
Mr. Murray likewise, counsel for the Georgia trustees, said, that as he conceived there was but one single point in dispute between the trustees and the people of Carolina, he would only mention the several points, which had been insisted on by the Counsel for Carolina, and leave them to their Lordship's consideration.
With regard to the navigation of the river Savannah, he said, the trustees, did not, nor do not, dispute it: That the rum complained of, to have been unjustly seized, was seized and staved, because it was imported into New Savannah, contrary to the Georgia Act, prohibiting the same: That according to law, all goods in port, are equally lyable to duties, seizures and confiscations, as if they were landed: That if the persons, whose rum was seized, did not really intend to import the same, they have their remedy against those, who had unjustly seized it, the Trustees not being answerable; but that as the boats, out of which the rum was taken, were within the port of New Savannah, which includes all that part of the Southern stream between the said town and Hutchinson's Island, it appeared evidently their intent to land the same: That the counsel for Carolina had produced evidence for two seizures only; and as they both happened subsequent to the petition, they could not be urged in support of the petition, although their validity is to be judged by the aforesaid law.
With regard to the man adjudged to be whipped, he was a soldier, who having taken too great liberties with the one handed king's wife, was, by his officer sentenced to be whipped, but was afterwards pardoned at the request of the said king; But that Mr. McKey, who sentenced the said soldier, having a commission to regulate the Indian trade and traders, both from the Commander in Chief of South Carolina and from Georgia, if even he had been guilty of a fault, it could not be laid to his charge, as a Georgia officer, more than as an officer deputed from the Government of South Carolina.
That although it was certain no exclusive trade could be granted, but by the authority of the legislature, yet as the king had granted to the trustees a power of passing laws, those Acts, when confirmed by the Crown, became Acts of a Legislature, so that he apprehended the arguments used by the Council of Carolina against the power of the Georgia trustees, of keeping the Indian trade to themselves, must fall in course: That the trustees of Georgia could have no intent to monopolize the Indian trade, since no instance could be produced of a trader from Carolina having been refused a licence.
That he conceived the great point in dispute was the Law of Georgia, for regulating the Indian trade; a law passed by proper authority, and asented to by the Crown; and although different, yet not repugnant to the law of Great Britain. By which law, the same regulations for the Indian trade are enacted, and the same bonds to be entered into, by each Indian trader, as before the Province of Georgia was separated from that of Carolina.
That the present question would be reduced to this; within what bounds is the law of Georgia to take place ? or what is Georgia? To solve this, he observed, that the bounds, by which the Province of Georgia is described, are particularly mentioned in the patent: That the Georgia law must take place, everywhere within these bounds; And every one therein is subject to, and must submit to, the law of Georgia: That if an Englishman should commit murder in that part of the Indian country, which is within the bounds of the Province of Georgia, as settled by the patent, he must be tried in Georgia; And that he could not be tried in Carolina, or any other Province, for it: That he conceived it was of the last consequence, but to surmise, that the Indians were not subjects of Great Britain: That he conceived, this had ever been the sentiment of the Board of Trade: That when Lord Baltimore's patent was granted, for the Province of Maryland, the country belonging to savages was expressly granted to him: That no grant was ever made, with a saving to the Indian land: That he conceived the Cherokees, Creeks, and every other nation of Indians within the bounds of the Georgia patent, were Georgia Indians: That it is but common policy, to allow it, because otherways, if any of these Indians were to sell their land to any other Province, or person, the part so sold would cease to be Georgia, which is absurd. And to shew that it was the common sentiments of the people in America, that the Indians within the limits of each province, were Indians of, and under the protection of, that province, he quoted several laws of Pennsylvania, Rhode Island, Maryland, Virginia and the Massachusets Bay.
(Pennsylvania Laws:—folio 27. Rhode Island:—folio 4. Another in … 1727. Another in … 1729. New England:— folio 167. Another in … 1725. Maryland:—folio 120. Virginia:—folio 31; folio 37.)
Mr. Murray then observed that the instance produced by the counsel for Carolina of the Virginia complaint in 1707, and 1711, against Carolina, was not an instance in point; because the Georgia law only regulates the trade within the Province, whereas the Carolina law, complained of by Virginia, affected people out of the Province: That the Virginians complained against Carolina for having seized their goods out of Carolina, and that the Board of Trade, in their report upon this complaint, expressly declared, that the Western Indians (among whom the goods were seized) were out of Carolina, and upon that foundation proposed the repeal of the Carolina law, which he conceived they would not have done, had the then Carolina limitations and restraints been confined to Carolina alone, as in the case of the Georgia law, now complained of, by the people of Carolina; And that with regard to that law, he conceived the king could not repeal it, without the consent of the trustees, it having been confirmed by the Crown.
Mr. Murray then added, upon the subject of the Carolina Ordinance, for asserting and maintaining the right and privileges of His Majesty's subjects of this Province of South Carolina, to a free, open and uninterrupted trade with the Creek, Cherokee and other nations of Indians, etc; that if the Georgia law was enacted by proper authority, as he conceived it was; and if the limits of Georgia, as described in the patent, are really the limits of that Province, he submitted to the Board, whether the said Ordinance could be understood in any other light, than an attempt of the people of Carolina, to repeal a Georgia law, confirmed by the Crown.
The Board then proposed to go on, upon the reply to-morrow morning, but Mr. Brown, Counsel for Carolina, praying a longer day may be appointed, being engaged for the first days of the term, which commences to-morrow, and having no day at liberty till Saturday sennight, at six in the evening, the Board appointed that all parties should attend accordingly at that time.
Friday, June 10. Present;—Earl Fitz-Walter, Mr. Brudenell, Mr. Plummer, Mr. Pelham.
Mr. Wilks, Agent for the Massachusets Bay, attending, as he had been desired, their Lordships took again into consideration the answer from the agents of the Leeward Islands and Jamaica upon the French proposals for regulating the navigation between the French and English in America; he acquainted the Board, that he objected to that part of the said answer, which proposed some further restraints to be laid upon the trade carried on between the Northern colonies and the neutral ports of St. Eustatia and Curaçoa; which trade he apprehended to be of great service, both to the Northern colonies, and to Great Britain. But he proposed that the French Edict should be laid aside, and that the trade should remain upon the foot of the Treaty of Neutrality of 1686.
He then presented to the Board the case of the British Northern colonies, as his reasons for objecting to any restraint being laid on the aforementioned trade.
The draught of the report, ordered to be prepared the 8th instant, upon the petition of Messrs. Skene and Abercromby, who were appointed Commissioners on the part of Carolina to run the division line between that Province and North Carolina, was agreed to and ordered to be transcribed.
Tuesday, June 14. Present:—Earl Fitz-Walter, Col. Bladen, Mr. Brudenell, Sir A. Croft, Mr. Plummer.
Ordered that a letter be wrote to Mr. Carkesse, desiring an account of all the duties payable upon the several species of goods imported from Flanders, and the times when those duties were laid, as also what goods have been imported from Flanders and exported thither, from Christmas, 1730, to Christmas, 1736, or as near that time as may be.
The secretary laid before the Board an account of the incidental charges of this Office, from Christmas, 1736, to Lady Day, 1737, amounting to £306 16s. 11d., and a letter, for inclosing the same to the Lords of the Treasury, was signed.
The secretary acquainted the Board that Mr. Leheup, who was desired to attend the Board, this day, as agent for New York, was not so; and Mr. Noden, agent for Bermuda, attending, as he had been desired, objected to the Act passed at New York in 1734, mentioned in the minutes of the 8th inst., as it greatly affects Bermuda, whose vessels are generally numerous, and are the carriers of America: That the duty amounts to about two shillings sterling per ton; other islands not so much affected as Bermuda; because more vessels go to New York from Bermuda than from all the other islands together.
The Board agreed to take this Act into further consideration at another opportunity.
Wednesday, June 15. Present:—Earl Fitz-Walter, Mr. Brudenell, Mr. Plummer, Col. Bladen.
The Board, taking into consideration the draught of the minutes of the Board of the 9th instant, relating to the dispute between South Carolina and Georgia, the said draught was agreed, and ordered to be entered.
Thursday, June 16. Present:—Earl Fitz-Walter, Mr. Pelham, Col. Bladen.
The letter from Lord Harrington, read the 8th instant, with the several papers, therein referred to, and the translations thereof, relating to a complaint of the British merchants settled at Konigsburg, of a duty of 25 Rix dollars laid on them, was again read, as also the said papers, and the Board agreed to consider further thereof, at another opportunity: in the mean time, ordered that Mr. Spellerberg be desired to attend the Board to-morrow morning.
Friday, June 17. Present:—Earl Fitz-Walter, Sir A. Croft, Mr. Plummer.
Letter from the Duke of Newcastle, dated this day, directing the Board to prepare draughts of a Commission and Instructions for Sir Orlando Bridgeman, appointed Governor of Barbados, was read, and directions were given for preparing draughts accordingly.
Mr. Spellerberg, not attending, as he had yesterday been desired, upon the subject of Lord Harrington's letter, and other papers, mentioned in yesterday's minutes, relating to complaints of some English and Scots merchants settled at Konigsburg, of a duty of 25 Rix dollars, laid on them, the Board take those papers again into consideration, and gave directions for preparing the draught of a representation thereupon.
Saturday, June 18. Present:—Earl Fitz-Walter, Mr. Pelham, Mr. Brudenell, Mr. Plummer.
The Earl of Shaftsbury, Mr. Laroche, and some of the Trustees of Georgia, attending, according to appointment, as also Mr. Fury, Agent for South Carolina, with the same Counsel, as attended the Board the 9th instant, the Board take again into consideration the disputes between South Carolina and Georgia, and
Mr. Solicitor General Strange, Counsel for the Province of South Carolina, observed by the Board, by way of reply to what had been offered by the Counsel for the Georgia trustees, that, although they had not shewn any right to the power claimed by them, of preventing any trade being carried on with the Indians, but by persons licenced for that purpose by the Government of Georgia, nor to an exclusive right to the South stream of the river Savannah, yet it appeared, from what had been offered, that they intended to exclude the Province of Carolina from carrying on any trade with the Indians, said to be within Georgia, by making the licences so difficult to be obtained, as not worth while for the people of Carolina to endeavour to obtain them.
That if the Georgia law could prevent the people of Carolina from carrying on any trade with the said Georgia Indians, it must, in consequence, be binding upon the Indians, and prevent them trading to Carolina; But that no law can bind the Indians: That if it could, and if the Georgia Indians were really bound by the Georgia law, it would be very proper likewise to pass a law, to prevent those Indians from trading with the French or Spaniards, as they certainly will, if they should find that the people of Georgia pretend to confine their trade.
In answer to it's having been observed by the Counsel on the other side, that several laws were passed on some other of the colonies (vide minutes, folio 130) for binding the Indians within them, he said, that having perused those laws, he found they were laws, for preventing the Indians being imposed on, and not for binding or restraining them in any point of trade.
That if it was necessary to shew the custom of the colonies with regard to the Indians, he desired to mention an Act, passed at Virginia in 1734, entitled, An Act to enable the Nottoway Indians to sell certain lands; and for discharging the Indian interpreters, in which the consent of the Nottoway Indians was made necessary, even to the passing the Act.
That with regard to it's having been observed by the Counsel for Georgia, that the Carolina Act of 1707 had been repealed, because it affected the trade out of the Province, he said the present law was a parallel case, it not appearing from any thing offered, on the other side, that the Indians in question were actually situate within Georgia: For although it was said in some of the affidavits produced by them, that the Indians traders from Carolina had crossed the river Savannah to go to the said Indians, yet it was not said, that they did not likewise cross the Alatamaha; which he was instructed to say, they were obliged to do, in which case they were in the Province of South Carolina, and not in Georgia.
That with regard to the increase of the trade of South Carolina, said by the Counsel for Georgia, to be owing to the establishment of the province of Georgia, he desired their Lordships would please to observe, that ever since the purchase of South Carolina by the Crown, the trade of that Province had annually increased, as appears by the very account produced by the other side; And that therefore they thought themselves obliged to his Majesty's protection for this increase in trade, and not to any advantage from the Georgia settlements.
That it appears from their own witness, Mr. Stevens, and from other evidence, that the people of Georgia had made an ill use of the Act, by seizing and staving rum, designed for Old Savannah in Carolina, as more particularly explained in his evidence.
Mr. Brown, Counsel on the same side, likewise observed by way of reply
That although Mr. Murray, in behalf of the Georgia trustees, had given up their pretence of excluding the people of Carolina from the right of navigation in the South stream of the Savannah, yet as it was with this exception, that vessels using that stream should not have on board any goods prohibited by the Georgia law; they in fact still insisted on their right of exclusion, because, (as in the case of the rum seized) the vessel was in the South stream, and was consigned to Old Savannah: That as the river was not granted by the Charter, he conceived, the islands in the river could not be granted, and that therefore the New Savannah Port could only be understood to be the very port itself, and not that part of the river between Savannah Town and Hutchinson's island: That the vessel, whose rum was seized, having been brought to by a gun fired at her from Savannah, could not be said to have imported rum, and therefore her seizure was not justified by the Act itself.
That with regard to the Indian trade, as the people of Georgia are not obliged to grant licences to any Indian trader, but such as they please, it must be implied that they have the power of refusing, and that therefore this law was binding upon the Province of Carolina.
That by several treaties made with the Indians in question, a free trade was stipulated with all his Majesty's subjects, and that any Act, passed by the Georgia trustees, to restrain the said trade, was a manifest violation of the said treaty. He therefore hoped his Majesty would please at least to declare, that, in the confirmation of the said Act, he did not intend to grant any exclusive trade.
Tuesday, June 21. Present:—Earl Fitz-Walter, Mr. Pelham, Col. Bladen, Mr. Brudenell, Mr. Plummer.
Letter from the Duke of Newcastle, dated yesterday, directing the Board to prepare draughts of a Commission and Instructions for Lord De la Warr, appointed Governor of New York and New Jersey, was read; and directions were given for preparing the draughts accordingly.
Letter from the Duke of Newcastle, dated yesterday, directing the Board to prepare draughts of a Commission and instructions for Edward Trelawney, Esqr., appointed Governor of Jamaica, was read, and directions were given for preparing the draughts accordingly.
The Board then taking into consideration the subject of the dispute between South Carolina and Georgia, agreed that the following queries should be sent to the Attorney and Solicitor General, for their opinion, in point of law;
Whether an Act of the Trustees of Georgia, or of any
Assembly, passed in the colonies abroad, and confirmed by
the Crown, can grant to any of the said Provinces an
exclusive trade with the Indians, dwelling within their
respective Provinces ?
Does the Act above mentioned exclude all persons whatsoever, whether inhabitants of Georgia or not, from trading with the Indians, settled within the bounds of the Province of Georgia, as described by the Charter, except such as shall take out licences, according to the directions of the said Act ?
Wednesday, June 22. Present:—Earl Fitz-Walter, Mr. Pelham, Mr. Brudenell, Mr. Plummer, Col. Bladen.
Letter from Mr. Clarke, Lieut. Governor and Commander in Chief at New York, dated September 20th, 1736, about the proceedings of the Assembly, in relation to the administration of the Government there, and inclosing a printed paper on that head, was read.
Letter from Mr. Hamilton, Commander in Chief of New Jersey, to the Secretary, dated March 25th, 1737, complaining of Mr. Morris, for disturbing the peace of the Province, and inclosing a state of the case between them, and a proclamation issued by Mr. Morris, pretending a power to adjourn the Assembly, was read.
A letter to Mr. Clarke, Lieut. Governor of New York, and another to Mr. Hamilton, President of the Council and Commander in Chief of New Jersey, signifying the Lord De la Warr's being appointed Governor of New York and New Jersey, was agreed to, and signed.
The Board take into consideration the draught of a representation upon the French proposals for regulating the navigation between the English and French in America, and made a progress therein.
The Board take into consideration the draught of a representation upon Lord Harrington's letter, read the 8th instant, relating to some impositions, complained of by some English and Scots' merchants at Konigsberg, and made a progress therein.
Wednesday, June 29. Present:—Lord Monson, Mr. Pelham, Mr. Plummer.
A new Commission under the Great Seal, dated the 27th inst., appointing John, Lord Monson, and Robert Herbert, Esq., Commissioners of this Board, in the room of Earl Fitz-Walter and Sir Orlando Bridgeman, and continuing Mr. Pelham, Ccl. Bladen, Mr. Ashe, Mr. Brudenell, Sir Archer Croft, and Mr. Plummer, in the same Commission, was read, and Lord Monson took his place at the Board accordingly.
Mr. Paris, Solicitor for the Georgia trustees, presents a petition from the said trustees, desiring a copy of the reference to the Attorney and Solicitor General of the 21st inst., upon the Georgia law, which was read, and
Mr. John Sharpe.
Mr. John Sharpe, Solicitor for Mr. Fury, agent for South Carolina, attending, desired the abovementioned reference to the Attorney and Solicitor General may be varied, and made only to the Attorney General, on account of the Solicitor General's having been concerned as counsel on one side, but their Lordships did not agree thereto. (fn. 2)
Mr. Paris being withdrawn, the Board upon considering the memorial from the trustees, did not think fit to grant a copy of the reference desired.
Ordered that a letter be wrote to the Secretary of the Commission of the Revenue in Ireland, for an account of the exports and imports between Ireland and Flanders.
Thursday, June 30. Present:—Lord Monson, Mr. Pelham, Mr. Plummer.
Mr. Edwards, Secretary to the Turkey Commission, attending, acquainted the Board, that the Commission had no observations to make upon the treaty between Sweden and Turkey, sent to them the 10th May last.
Ordered that the draught of an answer be prepared to Lord Harrington's letter upon this subject, read the 6th May last.
The Board then took into consideration the draught of the representation, mentioned in the minutes of the 22nd inst., relating to the navigation of the English and French in America, which was agreed to, and signed.
A representation, with the draught of a commission for Mr. Trelawney, appointed Governor of Jamaica, was agreed to, and signed, as also a letter, for inclosing the same to the Duke of Newcastle.
A representation, with the draughts of Commissions for the Lord De la Warr, appointed Governor of New York and New Jersey, was agreed to, and signed, as also a letter, for inclosing the same to the Duke of Newcastle.
The draught of a representation, mentioned in the minutes of 22nd inst., relating to some impositions complained of by English merchants at Konigsberg, was agreed to, and signed.