Journals of the Board of Trade and Plantations, Volume 9, January 1750 - December 1753. Originally published by His Majesty's Stationery Office, London, 1932.
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Journal, December 1751
Their lordships pursuant to the minutes of the 26th of November, took into consideration an Act passed in the Island of Montserrat in February, 1748–9, entituled An Act to regulate the Assembly of this island, and the elections of the members thereof.
And Mr. John Sharpe, sollicitor for several of the inhabitants of the said Island, attending with Mr. Martin, his counsel, against the said Act, and Mr. Wilmot, agent for the Island, attending with Mr. Pratt, his counsel, in support of it.
Mr. Martin observed to their lordships that this Act was taken from regulations which from time to time had either taken place or been rejected with respect to the Parliament of Great Britain; that as to the three provisions in it, 1st, the qualification of an estate in land, 2nd, the limitation of the Assembly's continuance to three years, and 3rd, the exclusion of the treasurer; the first was regulation proposed here by the Torys in opposition to the trading interest; the second had been often attempted without success; and as to the third it had never been attempted to exclude the Commissioners of the Treasury; that the objections he had to make to this law were, 1st, that it increased the number of the Assembly by a law which was to take place immediately without the Crown's assent; that the constitution of this Island was limited in like manner as a corporation established by a charter, something betwixt that and a sovereign legislature, more extensive than the one and less than the other; that they had no power to alter their original constitution which is founded on the King's Commission and instructions, as they have attempted to do in this Act by declaring that the Assembly which before consisted of eight members should now consist of twelve. 2nd, that the Act goes further and declares that no addition shall be for the future made to their number. 3rdly, that it limits the continuance of the Assembly to three years, whereas by the constitution the Assembly is to continue as long and be dissolved as often as the Crown or its' Governor shall think expedient, that these were infractions upon the Crown's prerogative, and a violation of the King's Commission and instructions, which direct that all laws which anywise affect the Crown's prerogative should have a suspending clause; that a bill for limiting the continuance of the Assembly in Jamaica to three years had been reported against by this Board as an encroachment upon the Crown's prerogative. 4thly, that this Act obliges the Governor to issue his writs for a new Assembly four months after the expiration of the old one, which is a power the Governor has vested in him by his Commission, and is a stretch of power in the Assembly never attempted in Parliament here. 5thly that it requires the oaths of abjuration and supremacy to be taken by voters, which is intended to exclude the Roman Catholicks in this Island who have hitherto had a right of voting for the election of Assembly men, without any return of their having deserved it, who on the contrary have avoided all appearance of disaffection; that he could suggest but two reasons for this, 1st to imitate the policy of Great Britain, 2ndly that they may not have been very good subjects and ready to defend the Island in time of danger; that as to the first, the only reason for excluding the Papists here is on account of their attachment to the Pretender, which is a reason that does not hold in such small distant settlements, for whoever is king here must be so there; that as to the second, he believed whatever a man's religion might be, his interest would lead him to defend his property, but that the Roman Catholicks of this Island had always shewn great zeal in the defence of this Island of which he mentioned several instances both in Queen Anne's time and in the last war.
That there were other objections to this Act such as the whole penalty being given to the informer, and the laying a penalty upon the returning officer for returning a minor which was highly improper and made that Office a court of judicature.
Mr. Pratt in support of the Act observed that he was counsel for every Protestant in that Island; that if the Roman Catholicks had overpowered the Protestants it was necessary to restrain them; that the part of the bill for which the Islanders are most sollicitous is that which restrains the Roman Catholicks; that this bill was designed to secure the Protestant interest, as the opposition was to secure the Papist interest; that he was well informed that four-fifths of the inhabitants are Papists; that it had been a regulation in the Assembly, that five should be a quorum for the dispatch of business; that in the year 1746, a time when a rebellion was on foot here in England and the Island in great danger from the enemy, four members of the Assembly absented themselves and remained absent until the year 1748, by which means all publick business was at a stand, nor could any measure be taken for the publick service and security: that upon their meeting again in 1748 a bill was prepared for enlarging the number, but by some mistake in the transcribing was not passed; that another bill for the same purpose was soon after prepared and ready to pass, when, as he is instructed, one of those members who had absented came to the Assembly and by his negative threw out the bill; that the Governor was afterwards petitioned to issue writs for electing two members each for Plymouth and Kingsale, the most considerable places in the Island; this being the design of the bill it was hoped any little inaccuracies or inadvertencies would be passed over.
That as to the objections of its' being passed without a suspending clause, and that therefore the Act was illegal, he did not apprehend that the instruction referred to, could comptrole the legislature; that it was only a private instruction to the Governor, and affects him only, and if he had broke through it, it was a matter betwixt him and the Crown; that the instructions had reference to all new cases, for if it meant in all cases where property or prerogative is concerned, no case could happen where these points are not included, and therefore the legislature could do no act whatever without a suspending clause.
That as to the objection that the number was increased and thereby the constitution broke through, he was not well informed of the Commission and instructions; but that no proof had been given what was the constitution; that indeed it had been compared to a Corporation, but that it was different, for although the Island be a small government, yet as far as it goes, the government is as supreme as any other sovereignty and have a power of making laws binding upon all the people; that he admitted the legislature could not alter their constitution by consolidating one part of it with another, but that there was no such case; that the Crown has a power of sending writs to any new place that shall be thought proper, and can delegate this power to any other as in the case of the Proprietary governments in America, and therefore it could be no invasion of the prerogative of the legislature to pray by some Act that it may be done.
That as to the objection that the Crown's prerogative was infringed by limiting the Assembly's continuance to three years, he admitted it, but at the same time it must be understood that the Assembly only tendered this Act for the Crown's approbation.
That as to the exclusion of the Treasurer he was well informed that the Treasurer had 5 per cent, upon all moneys raised in the Island, which was an interest that rendered him a very improper person to sit in the Assembly, who could not be a witness in any common case.
That as to the qualification he did not apprehend there was any faction between the landed and trading interest; that the great point was the test, which had been represented as depriving a man of his right, and excluding him from his property; that it was a fundamental of all governments to require a test of every man's sincerity; that the opposition to this Act shews they do not-own it; that they are excluded only from a share in the government, and not from their property; that the same test is required in all the other Islands; that it is the tenet of a Papist to dispute the King's supremacy, whether there was a Pretender or not; that they are avowed enemies to the Protestants; that the Papists enjoy their liberty and property and the exercise of their religion; that all that was desired was that they might have no share in the government; upon the whole he hoped that this bill might lye by till another bill was passed not liable to the objection made to this.
The counsel being asked if they had any proofs of the several facts alledged on both sides in their arguments, they said they had not, whereupon the further consideration of this affair was postponed untill Thursday the 12th instant, when the gentlemen were desired to attend again, and bring with them proofs of the several facts alledged.
Their lordships pursuant to the minutes of the 26th of
November last, took into consideration a bill lately passed in
the Council and Assembly of the Island of Nevis entitled,
An Act to repeal an Act entitled, An Act to prevent Papists and reputed Papists from settling in this Island for the future, and for the better governance of those which are already settled,
and Mr. Sharpe, agent for the Island, attending with Mr. Martin, his counsel, in support of the bill, and Mr. Paris with Mr. Forester, his counsel, against it, the parties were called, and the Act passed in the year 1701, entitled an Act to prevent Papists and reputed Papists from settling in this Island for the future and for the better governance of those which are already settled, and also the bill for repealing the same having been read,
Mr. Forester observed to their lordships that he was counsel for four of the members of the Council and thirty-five of the inhabitants of the Island against this bill being passed; that the legislature of this Island in passing the old law in the year 1701 had done no more than followed the policy of Great Britain with respect to Papists; that this bill is a virtual repeal of an Act passed in a general Assembly of all the four Leeward Islands in the year 1701, to the same effect as that passed at Nevis at the same time, and which was binding upon the whole; that no Act done or made by any body can be revoked but by that body; that in the printed law book of laws passed in the Leeward Island, this Act is indeed said to be obsolete; but that it has been adjudged in a case of a law of the Leeward Islands under the same circumstance, that no written law can go into desuetude; that this bill was passed in a very irregular manner; that when the bill was brought into Council, the Governor and Lieutenant-Governor being absent, the President was in the chair; that there were present eight members including the President; that upon the question being put for its' being read there was an equality which in all cases presumitur pro negante; that notwithstanding that, it was read a second and third time and sent down to the Assembly the same day; that it was pretended that the President being in the chair could only vote upon an equality; that there was no foundation for this return, for that the Speaker of the House of Lords always votes, and he remembered an instance when the Lord Chancellor's proxy by voting made an equality; that this precipitation and irregularity are a sufficient foundation for repealing the bill; that as to the expediency and policy of the old law, it had been the policy of all governments ever since different religions prevailed to require a complyance with the established one of the country; that the policy of this country with respect to Papists did not proceed from sanguinary zeal, but from repeated attempts of the Papists to overthrow the government; that what was cruelty or mercy to one set of men, was not so to another; that infidels, Jews, hereticks, etc., did not, as the Papists do, hold it right not to keep their faith with Protestants, or believe that any power on earth can dissolve an oath; that though the laws were severe, the government connived at their non-execution and suffered them to enjoy their liberty and property without molestation; as since the Revolution there was no suspicion of the government's favouring them; that if any law or instruction should be thought proper for preventing the execution of any regulations which might be thought too severe, he should have no objection to it.
Then the following papers were read at the request of Mr.
An Act passed in the general Assembly of the Leeward Islands held at Nevis in the year 1701, entitled, An Act to prevent Papists and reputed Papists from settling in any of these his Majesty's Charribbee Leeward Islands in America.
Minutes of Council of the Island of Nevis of the 20th December, 1750, to shew in what manner the bill was passed.
Minutes of Council of the 8th of March, 1750–1, to shew that the former minutes had been falsified.
Their lordships pursuant to the minutes of Thursday last,
proceeded in the consideration of the bill passed in the Council
and Assembly of the Island of Nevis, entitled,
An Act to repeal an Act entitled, An Act to prevent Papists and reputed Papists from settling in this Island for the future, and for the better governance of those that are already settled.
and the parties for and against the bill attending,
Mr. Martin acquainted their lordships that he appeared before them in support of this bill; that the end proposed to be attained by the law of 1701 was improper; that the method of attaining it was also improper; that the bill for its' repeal ought not to be rejected on account of little irregularities; that the general design of the old law was to hinder Roman Catholicks settling in that Island as improper members of society; that if they were thought so here, they were not so there, as for that reason such places should be open for them to retire to; that a number of people was an advantage and security to any state, more especially so in this small colony on account of the danger they are exposed to from the vicinity of the French and other foreign people; that this Island is defended by a militia and that the more people there are to bear arms in it the greater the security; that Roman Catholicks were as proper as any; that self interest will always prevail, and that a Papist would not give up his property to another because he is of the same religion; that experience had shewn that the Papists behaved better in times of danger in this Island than the Protestants; that the number of slaves was very great, subject to insurrections, and that a number of people was necessary on that account; that Roman Catholicks were as good artizans as others; that one would think by this law that Nevis had been a paradise, that the State might receive or reject such as they thought proper; but that on the contrary, it was an unhealthy, unpleasant place; that as to the impropriety of the law in the attainment of the end proposed, it declared that persons coming to that Island should within ten days take the oaths, etc. on pain of forfeiture or imprisonment; that this was without any necessary exceptions for disability, lunacy and other circumstances; that strangers might not be acquainted with the law, and that it extended to all persons whether Papists or not; that it further directed that if any person was seen at Mass after he had taken the oaths such person should be declared a recusant convict; that the law went further and would not suffer a poor Catholick to be hired as a servant, nor any act of charity to be done them; whereas the laws of this country only forbid the open exercise of religion and deny them a share in the government; that by the words of the King's instruction concerning liberty of conscience it is plainly inferred that Papists should be admitted to live in the Island; that the 7 and 9 clauses of this Act were the same as those in Ireland, but that the Act goes further and declares that if any Papist convict refuse delivering of his estate a justice of peace may by his warrant direct the Marshall to put the next of kin in possession by which means the justice of peace is made the sole judge of property without a jury or without appeal.
That he should now consider the objections as to the irregularity with which the bill was passed; that the first objection was that there was an equality of votes; that the minutes shew there was a majority in every step the bill took; and that this was proved by Mr. Calder's deposition entered upon them; that in the 12th article he swears to the truth of the minutes; that indeed it does appear some alteration was made but not by whom; that the truth of the minutes was the only question, and that it appeared by the deposition that no material alteration had been made, no alteration in the sense, and that the President saw the minutes and approved them; that those gentlemen who protested did not protest against the minutes; that the only ground for suspicion of a falsification was the protest, which ought not to have been read as no leave was asked to enter it upon the minutes according to the usage of the Island, but that however a protest could in no case be considered as an evidence of truth; but admitting the truth of it, how does it appear that there was an equality of votes, it says indeed there was an equality upon the passing it, not upon the first and second reading; that this could not be true, because it appears that three of the eight members withdrew after the second reading; that it nowhere appears that any votes were taken except upon the question whether the bill should be brought in; that it appears that the President's vote was never taken, and that he did not insist upon his right, so that there were but three voting members against the bill and it was passed by a majority.
That as to the second objection that the bill was read a third time and passed after the Council was adjourned, there were three kinds of adjournment, sine die, to a certain day and during pleasure; that this adjournment was only during pleasure; that the President sat down again, suffered a motion to be made and afterwards sent the bill down to the Assembly as the Act of the Council.
That as to the third objection of its' being irregular, because read in Council three times in one day, it was stated to be done in particular cases and therefore is an evidence of the power to do it, and is frequently actually done in the Plantations when the law does not require consideration, and therefore as this at the first sight appeared so right a bill he was surprised any objection could arise on that head.
As to the fourth objection that it was a repeal of a general law passed at a General Assembly of all the four Islands, there was a material difference betwixt that law and the old Nevis law; but that if they were word for word the same it would not extend to the general law; that if the general law was in force any person might be indicted upon it; and that it was in force was proved from Mr. Forester's own argument that no Act done could be dissolved but by the same power that made it and therefore this bill does neither positively nor virtually repeal it.
Mr. Douglass, agent for the Island of St. Christopher's, acquainted their lordships that there are many Roman Catholicks in that Island, that they vote in elections and are upon the same foot as his Majesty's other subjects; that he believed the repeal of the old Nevis law would be beneficial to the Island, it having been attended with bad consequences that gentlemen could not now sell their estates to Roman Catholicks and that he believed many persons were by the severity of this law driven for shelter to Santa Cruz and other foreign Islands.
Mr. Pinny, a member of the House of Commons and possessed of an estate in Nevis, acquainted their lordships that the law had been detrimental to the Island which was now in a declining condition; that it was common for people who owed money to a Papist to oblige him to take the oath and thereby stop a prosecution for the debt; that there were but five or six open professed Papists upon the Island.
Mr. Sharpe acquainted their lordships that upon a diligent search into the laws of Barbados, Jamaica and the other Leeward Islands, he could not find that in any of them Papists were obliged to take the oaths of abjuration in order to qualify them to vote at elections.
Mr. Forester in reply observed that enough had been read to prove the irregularity of passing this law, and that the President had a right to vote, but was refused; that he would rely upon the consequence of approving a law passed with so little consideration; that the refusing the President's vote was irregular and consequently every other step the bill took; that this was the first time an adjournment sine die was made an adjournment during pleasure, which was always put to the vote, does not appear that there was any vote in this case; that it was true they might in strict law read a bill three times in one day, but non omne quod licit expedit; that it must be considered that this was a law considered and confirmed by the Crown; that as to what had been urged of the cruelty and inhumanity of the law, the persecution which had prevailed on account of different sects ever since the days of Constantine made it necessary for this government to compel an unity in religion, but this not having a good effect, it was found necessary after the Revolution to pass a toleration law, and it was the Papists' own fault they were not included in it.
That his constituents would not oppose a proper and necessary law to prevent severities against Papists or an instruction to restrain such severities; that there was not one clause of the old law that was not warranted by the laws of England; that it was a principle of all law, that as strangers coming into a country are immediately under the protection of its' laws, so are they liable to the penalties of those laws; that hearing of Mass after having taken the oaths was by a law of Queen Elizabeth deemed high treason, and that the clause relating to inheritance and purchase of estates was taken verbatim from a clause in the Act of the 10th and 11th William the Third; that as to the justices issuing their warrants to the Marshall to put the next of kin in possession, it could not be done without a record of the conviction to prove the offence.
The parties being withdrawn their lordships ordered the draught of a letter to the Governor of the Leeward Islands to be prepared, with directions to affix the seal of the Islands to the bill in question, to the end that their lordships might report thereupon to his Majesty.
Mr. Pratt desired that the following papers might be read, to
shew that there was a vacation of the Assembly occasioned by
the secession of some of the members from June, 1746 to March,
Minutes of Assembly of the Island of Monserrat from the 25th of March to the 24th of June, 1746.
Minutes of Assembly of the Island of Montserrat, commencing the 30th of March, 1747.
Upon which Mr. Pratt observed that there was then but four
members present and that the Assembly was further adjourned
to the 21st of May.
Proclamation of his Excellency, the Governor, to prorogue the Assembly, entered upon the minutes of Assembly of the 30th March, 1747.
Address of the Assembly to the Governor concerning an allowance to the Treasurer of money disbursed by him for publick service during the vacation of Assembly entered upon the minutes of Assembly of the 12th of March, 1747.
Mr. Pratt then desired that several clauses in the following
Acts might be read to shew that Acts of the like nature had
been passed and acquiesced in other colonies without suspending
An Act passed in the Island of St. Christopher's in 1711, for preserving the freedom of elections, etc.
An Act passed in the Island of St. Christopher's in 1727, to enable the several parts of this Island formerly belonging to the French to send representatives to serve in the Assembly, etc.
An Act passed in the Island of Nevis in 1730, to oblige the members of the Assembly to attend when summoned.
An Act passed in the Island of Nevis in 1701, for choosing three Assembly men for each division of this island for the time to come.
Mr. Martin, in reply to the arguments urged by Mr. Pratt the last day, observed that he did insist that the increase of the Assembly by Act was an usurpation and breach of their constitution; that all authority was derived from the commission…… whereby constituted; that this island was limited by its' original constitution to eight members of Assembly; that this constitution was founded upon the King's Commission, and what that was is shown by the usage; that as to what Mr. Pratt had said, that the legislature might by Act add more members with the King's consent, it was not to the purpose, for in this case this was done without the consent of the Crown; that the limiting the number and the continuance of the Assembly were violations of the Crown's prorogative, since the Crown has an undoubted power of increasing the Assembly, or dissolving or continuing it, as shall be found most expedient; that if this colony was not restrained in such encroachments, he could not tell how far this might go; that as to the Acts referred to by Mr. Pratt, their not having been considered is no argument why this should not; that it was the more necessary to curb a growing evil; and that if this Act should lye upon the Table it would in great measure countenance the usurpation; that the complaint of obstruction to business was not properly considered by this Act, since the quorum was also increased with the number; that as to the depriving the Roman Catholicks of their votes, there was no evidence that the absenting members were under the influence of the Roman Catholicks; on the contrary, the most suspected person appeared by the minutes of Assembly of the 30th of March, 1747, to be one of the four present; that Roman Catholicks have always voted, that they were justified in it by the King's Commission; that this Act deprived them of a franchise; had given proof of their allegiance at the hazard of their persons and estates; that there was no opposition in the colonies to government measures from a Jacobite faction; that the Roman Catholicks were ready to take the oaths of allegiance; that he was authorized to declare to the Board that the Roman Catholicks have no objection to taking the oaths of allegiance, or if the Board please to write to the Governor to procure an Act for obliging them to take them, they shall have no objection, but with respect to the oath of supremacy, they cannot consistent with the articles of their faith submit to that point; that the acknowledgment however of the Pope's supremacy was only in matters of religion, and that it was now a received opinion amongst Roman Catholicks that his power does not extend to temporals; that this was an improper time to discourage the colonies or lay them under difficulties; on the contrary all prudent measures should be taken to encourage people to resort thither; the Charribbee Islands have suffered by desertion to Dutch and other settlements, particularly since the contests concerning the Roman Catholicks' right of voting, who look upon this as a beginning of oppression.
The Secretary acquainted their lordships that the Secretary to the Trustees for the Colony of Georgia had desired him to acquaint their lordships in the name of the said Trustees, that being informed that the agent for the Province of South Carolina had received a letter from the Speaker of the Assembly of that province, containing their opinion with respect to the annexing Georgia to that colony at the expiration of their charter, they hoped their lordships would give directions that the said agent be wrote to, to lay before them a copy of the said letter.
Ordered that the Secretary do write to Mr. Crokatt, agent for the Province of South Carolina, to desire that if he has received any such letter, he would lay a copy or extract thereof before the Board.
Read a letter from the Duke of Newcastle, dated the 13th December, 1751, referring by his Majesty's command to the consideration of this Board the inclosed copy of a letter from his Majesty's Consul at Ostend, relating to a quarentine ordered by the Court of Brussels to be performed by all ships that shall arrive at Ostend from the Levant, and also to an additional duty proposed to be laid upon all vessels coming into that port.
Read a letter from the Earl of Holdernesse, dated the 11th of
December, 1751, referring by his Majesty's command to the
consideration of this Board:—
A memorial of the French Commissaries of the 4th of October, 1751, in answer to the memorials of the Commissaries of his Britannick Majesty of the 21st September, 1750, and 11th January, 1751, concerning Nova Scotia.
Copy of the Commissaries' letter to the Earl of Holdernesse, dated Paris, November 6–17, 1751.
Mr. Crokatt, agent for the province of South Carolina, attending,
laid before the Board the following paper, viz.:—
Extract of a letter from the Speaker of the Assembly of South Carolina to Mr. Crokatt, agent for the said province, dated the 6th June, 1750, relating to the annexing the Colony of Georgia to that province.
The draught of a letter to the Earl of Holdernesse with copies of a letter and papers received from Mr. Grenville, Governor of Barbados, having been prepared pursuant to the minutes of the 26th of November, was laid before the Board, agreed to and signed.
Mr. Kilby, agent for Nova Scotia, attending, laid before the
An account of the application of the money granted by Parliament the last year for the support of that settlement.
Draught of an estimate of what sums will be necessary for the ensuing year.
Mr. Townshend, contractor for supplying the settlers in Nova Scotia with provisions, attending, their lordships had some conversation with him with respect to the state of the victualling, and he acquainted their lordships that Mr. Powell, contractor under him at Boston for supplying the ships with provisions, had acquainted him that he had actually bought up the provisions of Halifax at Boston with the king's mark upon them and that too at a cheaper rate than any of the same sort could be had at Boston; that his (Mr. Townshend's) own agent had made proposals to him early and soon after the first embarkation, to engage with him in his contract and to purchase up the Halifax provisions at Boston as a method of furnishing his contract to great advantage, which proposition and all thoughts of it, though he was not insensible of the advantages to accrue from it, was immediately rejected by him; he further acquainted the Board that ships go frequently to Halifax to victual, finding it cheaper than in any other place.
Mr. Powell informed the Board that the summer before last it was usual for the coasting vessels to bring up to Boston from Halifax from ten to twenty barrels each of beef and pork; that he bought from fifty to one hundred barrels for the use of the ships, which they told him they bought of the settlers in truck for rum, etc.; that at the time when he bought these provisions, which was in May, 1750, the price of beef was 30/-per cask; that the weight of a barrell of Irish beef was 220 lb.; that the weight of a Boston barrell was 200 lb.; that he bought Halifax beef at 25/-; that pork and beef were the only two species bought up; that he had heard reports of irregularities in the method of the storekeepers' delivering out provisions at Halifax, and that orders were given for provisions without form or method; that he had heard that small vessels used to victual at two or three barrells at Halifax because they could have provisions cheaper than at Boston; that he could not say to what extent Halifax provisions were sold at Boston; but that he could trace out the sale of two or 300 barrels; that he had been told those who purchase it at Halifax purchase it for half the value; that part of the Halifax provisions sold at Boston might be those allowed to the military; that there was no difference of the marks upon the cask; that he did not know that any Halifax provisions had been sold at Boston since the year 1750.
Mr. Lamb's report upon a private Act passed at Virginia in March, 1746, to dock the intail of certain lands in the county of Gloucester, late the estate of Thomas Todd, and resting the same in trustees to be sold, etc.
Their lordships having taken the said Acts into consideration ordered the draughts of representations to his Majesty thereupon to be prepared, and draughts having been accordingly prepared, were agreed to, transcribed and signed.