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, June 1752
The Secretary laid before the Board an account of the incidental charges of this office from Michaelmas to Christmas, 1751, amounting to three hundred, ninety-eight pounds ten shillings and ten pence, and a letter to the Lords of the Treasury desiring payment thereof and of the salaries due to the Secretary and under officers in the service of this Board for the same time, were laid before the Board and signed.
The Secretary laid before the Board a memorial of Mr. Kilby, agent for the settlement of Nova Scotia, relating to 200 tents being purchased from his Majesty's Office of Ordnance for the service of the settlers in Nova Scotia.
Ordered that the Secretary do acquaint Mr. Kilby that their lordships approve of the said tents being purchased for the sum of 200 guineas mentioned in the said memorial and that he do signify the same to the principal officers of his Majesty's Ordnance.
The Secretary likewise laid before the Board a memorial of Mr. Kilby to the Lords Commissioners of his Majesty's Treasury praying that the sum of…… may be issued to him for the payment of so much due to the contractors for victualling the troops and settlers in Nova Scotia.
Their lordships upon consideration of the said memorial were pleased to approve thereof and to order Mr. Kilby to present the same to the Lords Commissioners of his Majesty's Treasury for their Lordships' directions thereupon.
The draughts of circular letters to the Governors of his Majesty's colonies and plantations in America requiring them to pay a due obedience to their instructions, having been transcribed pursuant to the minutes of the 27th of May, were laid before the Board and signed.
The draught of a letter to Mr. Knowles, Governor of Jamaica, inclosing the copy of an Act passed in Virginia for the revisal of the laws of that colony, having been transcribed pursuant to the minutes of the 26th of May, was laid before the Board and signed.
Ordered that the Secretary do transmit copies of the general queries usually given to the Governors of his Majesty's colonies in America relative to the state and circumstances of their respective governments to the Governors of Virginia, Jamaica, Massachusets Bay, Nova Scotia, North Carolina, Barbados and Bahamas, for their answers thereto.
The draught of a report to the Lords of the Committee of Council upon forty-six Acts passed in the province of the Massachusets Bay in the years 1748, 1749 and 1750, having been transcribed pursuant to the minutes of the 26th of May, was laid before the Board and signed.
The draught of a representation to their Excellencies, the Lords Justices, proposing that James Scott and Jeremiah Tinker, Esquires, may be appointed of his Majesty's Council in the Bahama Islands in the room of John Howel and William Spatchers, senior, Esquires, was laid before the Board, agreed to, transcribed and signed.
The draught of a representation to their Excellencies the Lords Justices, upon an Act passed in the province of South Carolina in 1746 for emitting £210,000 in paper bills of credit was laid before the Board, agreed to, and ordered to be transcribed.
Read the following Orders of their Excellencies, the Lords
Justices in Council, viz.:—
Order of the Lords Justices in Council, dated the 28th May, 1752, approving a representation of this Board proposing that William Popple, Esquire, may have leave to be absent from his government for a year longer from the 10th of June next.
Order of the Lords Justices in Council, dated the 28th May, 1752, approving a representation of this Board proposing George Forbes, Esquire, to supply a vacancy in the Council of Bermuda by the death of Samuel Burrows, Esquire.
Order of the Lords Justices in Council, dated 28th May, 1752, approving a representation of this Board proposing that Gilbert Fleming, Esquire, Lieutenant-General of the Leeward Islands, may have leave to be absent from his command for twelve months.
Order of the Lords Justices in Council, dated the 28th May, 1752, approving a representation of this Board proposing that Gilbert Fane Fleming, Esquire, one of his Majesty's Council in the Island of St. Christopher's, may have permission to continue here for twelve months.
The draughts of warrants conformable to the said Orders having been prepared and also the draughts of representations to the Lords Justices thereupon, they were laid before the Board, agreed to and ordered to be transcribed.
Their lordships took into consideration the letter from Mr. Amyand, Secretary to the Lords Justices, inclosing several papers relating to a dispute between the agents of the African Company at Cape Coast and those of the Dutch West India Company at Elmina upon the coast of Africa, mentioned in the minutes of the 7th of May last, and also the letter and papers which have been laid before the Board by the Committee of the Company of Merchants trading to Africa relative thereto, ordered a state of the points in dispute to be prepared.
Read a letter from Mr. John Dick, dated at Rotterdam, the 5th June, N.S., 1752, inclosing a list of foreign settlers on board the Sally, John Robinson, master, bound from Rotterdam to Halifax in Nova Scotia.
The draughts of representations to their Excellencies, the Lords Justices, inclosing warrants for leave of absence for William Popple, Esquire, Governor of Bermuda, Gilbert Fleming, Esquire, Lieutenant-Governor of the Leeward Islands, and Gilbert Fane Fleming, Esquire, one of his Majesty's Council in the Island of St. Christopher's having been transcribed pursuant to the preceding minutes, were laid before the Board and signed.
The draught of a representation to their Excellencies, the Lords Justices, inclosing a warrant for the appointment of George Forbes, Esquire, to be one of his Majesty's Council in the Island of Bermuda, having been transcribed pursuant to the said minutes, was laid before the Board and signed.
Read a letter from Mr. Clinton, Governor of New York, to the Board, dated the 8th of April, 1752, signifying his intentions of suspending James Delancey, Esquire, Lieutenant-Governor of that province.
Read a letter from Mr. Dick, dated at Rotterdam, the 9th June, N.S., 1752, inclosing a list of foreign settlers on board the Gale, Thomas Casson, master, bound from Rotterdam to Halifax in Nova Scotia.
Read a letter from Mr. Belcher, Governor of New Jersey, to
the Board, dated at Elizabeth Town, the 8th April, 1752,
transmitting the papers relating to the late session of the
Assembly at Amboy, viz.:—
An Act of the Legislature under the seal of the province, being for the support of government and for discharging the publick debts. Passed February 12th, 1752.
Minutes of Council at a session of the general Assembly held at Perth Amboy in January and February, 1752.
Printed votes of the Assembly in January and February, 1752.
Their lordships took into consideration the letter from Mr. Clinton, mentioned in the preceding day's minutes, and Mr. Catherwood attending he was called in and being asked whether he could give the Board any certain account when Mr. Clinton intended to leave his government, he said that he did not know what time was fixed, and that Mr. Clinton in his last letter to him mentioned the hopes he had of having a 40-gun ship from Halifax in Nova Scotia, and that his leave of absence expired the 1st of next month.
Mr. Hamersley, agent for Mr. Braithwaite of the Island of Barbados praying the repeal of an Act passed in that Island in 1713 relating to the 3 Spring Rivulet in the parish of St. Philip, and Mr. Paris, agent for the parishioners of the said parish, in support of the said Act, attending with Mr. John Sharpe, agent for the said Island, Mr. Hamersley moved the Board to take into their consideration the memorial of the said Braithwaite, presented to them on the 6th November, 1750; Mr. John Sharpe then acquainted the Board that he had in pursuance of their lordships' directions given notice of Mr. Braithwaite's application to the Committee of Correspondence in Barbados who had acquainted him that the Legislature there had not any thing to offer in support of the Act. Mr. Paris then prayed their lordships that he might have copies of the papers relative to the proceedings upon this affair which were ordered to be given to him, and their lordships acquainted the parties that they should be ready to hear what they had to offer upon this affair on Thursday, the 18th instant, and then they withdrew.
Their lordships took into consideration a state of his Majesty's province of New Hampshire so far as relates to the disputes concerning the property of the lands and other difficulties at present subsisting therein prepared pursuant to the minutes of the 30th of April.
Their lordships took into consideration a letter from Mr. Amyand, Secretary to the Lords Justices, referring a memorial of several merchants of London relating to the opening a new trade to the coast of Labrador, mentioned in the minutes of the 12th of May, and ordered a state of the Crown's right to that country to be prepared.
The Committee of the Company of Merchants trading to Africa attending, were called in and Mr. Poole, one of the said Committee, acquainted their lordships that they had seriously considered what had appeared with respect to the conduct of Mr. Melvill, their agent at Cape Coast, and were very sensible of and concerned for his misconduct in some cases; that however he should beg leave to lay before the Board the ill consequences which would attend the calling him home at this juncture, and first that Mr. Husbands and Mr. Boteler who were joined with him had behaved in such a manner that the Committee could hardly consider them as their officers; that if he was to come home the disputes with the Dutch which he had so prudently put an end to, and the Hantah affair would probably break out again, and the whole coast might be in a flame; that the Committee had thoughts of putting Mr. Young into the Council and till that was done and such a Council settled as might encourage the officers in their duty it would be imprudent to recall Mr. Melvill, but when this was done they should submit to whatever might be thought expedient; that as to Mr. Melvill's drawing the trade to Cape Coast by the Act of Parliament the trade was free to all, and that he apprehended Mr. Melvill had a right so to do.
Mr. Touchitt then observed to the Board that there were other reasons besides those urged by Mr. Poole for not calling home Mr. Melvill; that he had an old account to settle with Mr. Roberts; that he was at present employed in giving directions concerning the repairs of the forts and making out an establishment, for the want of which the Committee were under great difficulties; that as to the building the fort at Anamaboe, the Committee proposed to appoint Mr. Young, who they apprehended would be agreable to the Fantees, agent for building the fort, to be sent out with the engineer and to give directions to Mr. Melvill to assist him in everything to the utmost of his power.
The Committee then acquainted the Board with the steps they had taken with respect to building a fort at Anamaboe and desired the Board's opinion and directions as to the establishment of the said fort, whether it should be wholly a military one, or a fort for trade, whether the chief of it should be independent of the chief at Cape Coast or if not how far he should be dependent upon him.
Their lordships then ordered the Committee to withdraw and after some time spent in the consideration of this affair they were again called in and their lordships acquainted them that they had considered the reasons which had been offered for not calling home Mr. Melvill at this juncture; that the Committee had expressed an uneasiness and concern for Mr. Melvill's conduct; that such a conduct at this crisis could not but be very alarming to the Board, since if any fatal accident was to happen from it, a great deal of national blame must fall either upon the Board or upon the Committee; that it was this consideration which made the Board think it proper that Mr. Melvill should be removed; out of tenderness however to his fortune and character, they declined exercising the power vested in them by Act of Parliament, and were satisfied with proposing an expedient which they apprehended might answer the end proposed, and which they thought might have been accepted; that perhaps some of the reasons urged by the Committee for not accepting it may have some weight in themselves, but could have none where the publick safety was at stake; that however such was the Board's regard to the Committee that they were willing to submit to their opinion when they could do it without risque to the publick, that they hoped they might do it with safety in the present case and therefore should not insist upon Mr. Melvill's being called home, provided such orders are given to him for the security of the publick interest and safety as the Board shall approve of, that they hoped this instance of regard to the Committee would not be attended with any ill consequence, but if any accident should happen, if the French should get possession, the Committee must take the blame upon themselves and that none could lie upon the Board.
The Committee then acknowledged the great obligations they were under to the Board for the indulgence shewn them in this affair and acquainted them that they should with great readiness give Mr. Melvill whatever orders the Board should think proper; whereupon they were told that the Board would consider of what orders might be proper to be given to Mr. Melvill and also of what had been said with respect to the establishment of the fort, and they were desired to attend again on Tuesday next.
The Committee then laid before the Board the following paper
and withdrew, viz.:—
Copy of a letter from Thomas Melvill, Esquire, President of the Council, etc., at Cape Coast Castle, to the Committee of the Company of Merchants trading to Africa, dated the 9th November, 1751, and of the copy of a letter, dated 8th January, 1752, the original of which is not yet received.
Their lordships pursuant to the minutes of Tuesday last,
took into consideration the papers relative to Mr. Melvill's conduct
upon the coast of Africa, and the Committee of the Company of
Merchants trading to Africa attending as desired they were
called in and presented to the Board.
A letter from Mr. Melvill to the Committee, dated at Cape Coast Castle, the 14th March, 1752, containing an account of the present state of affairs upon the coast and inclosing several papers relative to his proceedings with the Commanders of his Majesty's ships of war at the time the French squadron was at Anamaboe.
The said letter and papers having been read the Committee were ordered to withdraw and after some time spent in the consideration thereof they were again called in, when they were told that their lordships should take this affair into further consideration to-morrow morning when they were desired to attend at eleven o'clock.
The draught of a representation to the Lords Justices proposing that Henry Brouncker, Esquire, one of his Majesty's Council and Collector of the Customs in the Island of St. Christopher's, may have leave to return to England for twelve months to pass his accounts and settle his private affairs was laid before the Board, agreed to, transcribed and signed.
Their lordships took into consideration the letter and papers mentioned in yesterday's minutes relative to the present state of affairs upon the coast of Africa, and the Committee of the Company of Merchants trading to Africa attending as desired they were called in, and their lordships acquainted them that in the consideration of the variety of matters before them relative to the state of affairs in Africa they had given all possible dispatch and had prepared such instructions for Mr. Melvill, the Company's agent there, as appeared to them to be necessary and proper: that as the Committee however had since received a letter from Mr. Melvill the Board thought it proper that the letter should be read and considered before their instructions were delivered to them: that it appeared upon consideration of the letter that some part of the said instructions were either improper or unnecessary, as Mr. Melvill gives a different account of the state of things to that which appeared from the other letter and endeavours to justify his conduct; that part of these however were still proper to be given as Mr. Melvill does not take notice of the presents to which they relate; that therefore the Board apprehended that the Committee would think it adviseable if there was no other object than that of justice to Mr. Melvill that the articles of charge against him as they appeared from the former letter should be transmitted with directions to Mr. Melvill to transmit full proof of allegations in his letter which tend to justify his conduct in some points, and also forthwith to transmit his answer to such parts as are not taken notice of in his letter; that with this view the Board would as soon as possible draw out the articles against him, attended with such observations and directions as they should think proper: that in the meantime, however, as a sloop of war was to sail in a day or two their lordships recommended to the Committee to write to Mr. Melvill to acquaint him with what had passed here relative to himself and to recommend to him to do all that lay in his power to further and promote the important service of building a fort at Anamaboe.
Read a petition of the principal exporters and manufacturers of paper hangings, setting forth that they have received advice from Russia that one Butler, an Englishman, who had some time ago settled there had introduced the manufacture of paper hangings to the great prejudice of our trade, and had lately made application to the Russia Senate totally to prohibit the importation of foreign paper hangings there, and therefore praying such redress and directions therein as the Board shall think proper.
Messrs. Goadby, Herring and Kite attending in behalf of the
said petition were called in and they acquainted the Board that
the manufacture and exportation of paper hangings had within
these few years greatly increased chiefly to Russia, and that it
was become the more important, as the greater part of it was
now manufactured with English paper made in Kent and
Hampshire, and in order to prove the facts alledged in the petition
of the application made to the Russia Senate for a total prohibition, they laid before the Board the following letters, viz.:—
Copy of a letter from Mr. Henry Barkhuysen to Mr. Henry Herring, dated at St. Petersburg, the 18th of April, 1752, relating to the manufacture of paper hangings.
Copy of a letter from Mr. Henry Barkhuysen to Messrs. Virtue and Goadby, dated at St. Petersburg, the 18th of April, 1752, relating to the manufacture of paper hangings.
The gentlemen were then told that their lordships would take their petition into consideration as soon as other necessary business would permit and as they are at all times ready to do all that lyes within their power to promote and encourage the trade and manufactures of this country so they should in the present case consider of what might be proper and requisite to be done for obtaining redress in a matter which appeared to them to be of so great importance.
Ordered that the Secretary do write to Mr. Wood, Secretary to the Commissioners of the Customs to desire he would move that Board for an account of the quantities of paper hangings exported to foreign parts from Lady Day, 1742, to Lady Day, 1752, inclusive, distinguishing each year and to what places exported to be laid before the Board as soon as possible.
Their lordships took into further consideration a state of his Majesty's province of New Hampshire mentioned in the minutes of the 10th instant, and ordered the draught of a representation to their Excellencies, the Lords Justices, to be prepared proposing that a new Instruction should be sent to the Governor of that province relative to the right of the new towns to send representatives to the Assembly, and that a state of the case relative to the claims of Mason, Allen and others with respect to the property of the lands should be prepared and transmitted to the Attorney and Solicitor General for their opinion thereupon.
Mr. Hammersley, agent for Mr. Braithwaite of the Island of
Barbados with his counsel Mr. Aston, against an Act passed in
that Island in 1713 relating to the Three Spring Rivulet in the
parish of St. Philip, and Mr. Paris, agent for the parishioners of
the said parish with his counsel Mr. Henley and Mr. Martin, in
support of the said Act, attending, as desired by the minutes of
the 10th instant, the following papers were read, viz.:—
The Act relating to the Three House Spring, passed in June, 1713.
Mr. Heysham's memorial to the Board of Trade presented in January, 1713–14, praying their lordships to lay this Act before his Majesty for confirmation.
Minutes of the Board of Trade of January 21st and 26th and of February 2nd, 12th and 18th, 1713, containing their proceedings in consequence of Mr. Heysham's petition.
Mr. Braithwaite's memorial to the Board of Trade presented in November, 1750, and
The minutes of the Board of the 6th November, 1750, containing their order thereupon.
Mr. Aston then observed to their lordships that the Assembly of Barbados upon the consideration of the papers transmitted by Mr. John Sharpe in pursuance of their said order had on the 12th March, 1750, resolved that they would not appear in support of the Act.
That it appears by the deposition of the clerk of the Assembly that the present representatives of the parish of St. Philip were present and consenting to that resolution were of opinion that the affair concerned some particular persons only and therefore would not interfere in the dispute, and that the said clerk, as clerk of the Committee of Correspondence, had received no directions to send any instructions to the agent in England relative to this Act.
And the following papers transmitted under the seal of Barbados
being read in evidence of the facts above stated, viz.:—
Extract of the minutes of the Assembly of Barbados of the 12th March, 1750.
Deposition of William Duke, clerk of the Assembly of Barbados, taken the 9th July, 1751.
Mr. Aston then observed to their lordships that as objection would probably be made to the length of time elapsed since the passing the Act, he should endeavour to obviate by acquainting them with the circumstances of Mr. Braithwaite's family; that the father of the present Mr. Braithwaite was a minor till the year 1723, that he died in 1732 and left the present petitioner but ten years old; that he came of age in 1743, came over to England to learn the proper method of application, and returned to Barbados to obtain evidence and that seven years was not a long time for such a work: that however the first memorial being still subsisting, judgment was not debarred, as to propriety of law but open to any future application.
He then stated three objections to the Act. 1st. That it was founded on false facts. 2nd. That the subject of it is not the proper subject of a general law. 3rd. That it was unequal and inconsistent; and acquainted their lordships that the evidence he should produce would prove, in contradiction to the preamble of the Act. 1st. That it was a natural spring not dug at the publick charge. 2nd. That the adjacent lands were never damaged by it, and 3rd, that the course of it had not been altered. That the spring was so called before 1658 from three Indian houses which were there before any settlement was made in that part of the Island; that it arose in Mr. Braithwaite's estate, eighty feet from the road, that there never was a road over it; that the whole of the spring may be received in a bore of six inches, that it is not four feet deep and may be stepped over; that it was always considered as the private property of the owner of the Three Houses Estate, and that the sole and uninterrupted enjoyment of it as such would be proved for more than 50 years; that this right is confirmed by the frequent applications of particular persons for leave to use this water, which was always received as a favour; that there are but right springs in the Island all of which are used as private property; that the poor have never been refused to water their cattle at the head of the spring; that on the contrary Mr. Braithwaite had offered to make them a pond, the pond that they contend for being incapable of holding water: that the Act is an invasion of private property and that the estate is damaged £150 or £200 a year by it; that the Act was unequal and inconsistent inasmuch as it gives two days' water to each inhabitant without any regard to their respective quantities of land; that ten days' water is allowed to five persons who have 50 acres, while Mr. Braithwaite's 300 acres have but three days': that there were originally fifteen persons amongst whom the rotation was to be performed in thirty-three days, so that after Mr. Braithwaite had used the water three days as allowed him, he must remain thirty days without any: that the inconvenience of these regulations was so great that Mr. Braithwaite's guardians were obliged to rent adjacent lands for the sake of the water, which the Act allowed them, and that Mr. Braithwaite had been under the same necessity.
Mr. Aston then desired the evidence might be heard, and if
the facts he had asserted were sufficiently proved, he hoped
their lordships would find sufficient cause to propose the repeal
of the Act.
And the following depositions were read, viz.:—
Deposition of Captain Roger Webb, dated 11th July, 1713.
Deposition of Edward Skeete of the same date.
And the following depositions transmitted under the seal of
Barbados were also read in proof of the several facts asserted by
The deposition of Elizabeth Holligen of the parish of St. Philip's, dated 2nd July, 1751.
The deposition of Anne Downes sworn 7th June, 1751.
The deposition of Robert Braithwaite sworn the 27th June, 1751.
The deposition of Christopher Webb sworn the 2nd July, 1751.
Deposition of John Vodry sworn the 2nd July, 1751.
Deposition of Stephen Cheeseman sworn 27th July, 1751.
Deposition of Richard Williams, Esquire, sworn the 5th July, 1751, and
The deposition of Thomas Stevenson, sworn before a Master in Chancery in England the 28th December, 1751.
Mr. Aston begged leave further to observe to their lordships that if he was rightly informed this Act ought not to have been assented to by his Majesty's Governor according to his instructions without first sending over a draught of it or inserting a suspending clause.
Mr. Henley acquainted their lordships that he was counsel for Joseph Bailey, Esquire, and other gentlemen, who have estates on the stream below Mr. Braithwaite's and for many poor people who live by raising stock and whose being or ruin depends on the Act; that he shall prove that several of these have purchased since the passing of this Act, and that the lands were thereby augmented one half in their value: that they purchased under the publick faith of the Act, and that it would be of great consequence, if after seven years and after the parties had prayed for a confirmation of the Act, the Act, on a notion of its' doing a private injustice should be repealed to do injustice to 100; that the Act was framed upon principles of wisdom and justice, that Mr. Braithwaite was protected by it in the enjoyment of a priviledge, which without the Act he had no right to; that he should shew great reason to believe that the spring in question rises in the highway, which however may be private property, according to the laws of England, but in Barbados discoveries of so valuable a nature all vested in the Crown and could not become private property, but by patent; that it did not appear that there was any specification of it in Mr. Braithwaite's grants or that he had ever done anything evincing acts of ownership and therefore his property was not clearly but inconclusively made out; that he shall shew that the ancient road did pass over the head of the spring, the head of which being formed in a rock they deviated to a more convenient road at a small distance; that as to the affidavit of Richard Williams, the surveyor, he does not pretend ever to have seen the estate till he surveyed it, and received no information concerning it but from Mr. Braithwaite; that if it be admitted that the spring does really rise out of Mr. Braithwaite's property he could nevertheless have no controul over the stream, but must let it take its' natural course; that water is a boon by nature by the law of England which must be the laws of Barbados, in cases of property wherein they have no particular ordinances.
That as to the inequality objected to the Act because Mr. Braithwaite is allowed but three days' water although his lands bear a greater proportion than that, to the lands of those who are allowed it for two days, 'tis arguing on a fallacy; that the proportion ought to be, as it is settled, according to the number of acres of each man's land through which the stream runs: that this being considered the Act favours Mr. Braithwaite who is not entitled to any preference for being situated nearest to the spring; that during the family's long acquiescence of thirtyseven years, they have enjoyed their estate, and rented lands, because the Act made them more valuable; that it appears Mr. Braithwaite came of age in 1743, seven years before he presented the memorial, that actions are limited to six, and had it been done by trespass he could have brought no action. But the father came of age in 1723, and from that moment the time runs against the son, so that the Act now runs upon them from 1723 to 1750.
He concluded with observing that the people had requested the confirmation of this Act in the January subsequent to its' passing, that the Board had suffered it to remain for thirty-seven years, and that the greatest injury would be done to those who had purchased under the Act, if it should now be repealed.
The draught of a letter to Colonel Cornwallis desiring him in case the ship which has specie on board for the payment of the settlers in lieu of provisions should arrive before Governor Hopson to receive the same and entrust it to some carefull person, was laid before the Board, agreed to, transcribed and signed.
Read a letter from Mr. Amyand, Secretary to the Lords Justices, dated the 19th June, 1752, referring to the consideration of this Board the inclosed memorial and representation of the Trustees for establishing the colony of Georgia in America, containing a proposal for the encouragement and improvement of the growth and culture of raw silk in that province.
Mr. Martyn, Secretary to the Trustees for establishing the
colony of Georgia, attending, was called and he laid before the
Board the following paper, which was read, viz.:—
Memorial of the Trustees for establishing the colony of Georgia in America setting forth the manner in which they have executed their trust and what is at present the state of that colony, more especially with respect to the growth and culture of raw silk.
Mr. Martyn then laid before the Board the following papers
in support of the facts set forth in the said memorial, which
were also read, viz.:—
A list of all the lands granted in the colony of Georgia in America, from the commencement of the said colony to the 24th June, 1749.
A talk delivered the Indians of the Upper and Lower Creek Nations and answers thereto, the 28th May, 1751.
An account of raw silk reeled in the publick filature at Savannah from the 10th May to the 16th July, 1751.
The Honourable Trustees' account with Pickering Robinson and J. Habersham for the purchase of cocoons, etc.
Encouragement given for the culture and production of raw silk in Georgia.
Account of the produce of Georgia exported from the 1st January, 1749–50, to the 1st January, 1750–1.
Account of the produce of Georgia exported from January 1st, 1750–1, to January 1st, 1751–2.
Account of the silk sold at the public sale, March 13th, 1752.
Their lordships had then some conversation with Mr. Martyn upon the subject of the said memorial, and he being withdrawn the draught of a representation to their Excellencies, the Lords Justices, upon the above-mentioned representation of the Trustees was ordered to be prepared.
Ordered that the Secretary do write to the Secretary to the Commissioners of the Customs desiring him to move that Board for an account of the quantity and species of goods exported to Georgia from Christmas, 1749, to Christmas, 1751, distinguishing each year.
The Right Honourable Henry Fox, his Majesty's Secretary at War, attending, their lordships took into consideration a letter from Mr. West, Secretary to the Lords of the Treasury, referring a memorial of Mr. Crokatt, agent for South Carolina, desiring that £3,000 may be issued for presents to the Indians bordering upon that province and the province of Georgia mentioned in the minutes of the 20th of February last; and Mr. Crokatt attending with Mr. Martyn, Secretary to the Trustees for establishing the colony of Georgia, they were called in and after some conversation had with them upon the subject of the said memorial, Mr. Crokatt proposed that the £3,000 prayed for in his memorial should be given by Great Britain in exoneration of the expences of the Government of South Carolina on account of Indian services so far as that £3,000 will go; his reason for which was that when the settlement of Georgia was first undertaken the Trustees gave great presents to the Indians which put the French and Spaniards upon giving greater presents than was usual before, and therefore the expences of presents were greater than before the settlement of Georgia was begun. Mr. Crokatt further proposed that the £3,000 should not be all sent in goods, but only a part, and the remainder to be drawn for by the Treasurer of South Carolina to defray expences attending the distribution of presents and other Indian services.
Read a letter from Mr. Clevland, Secretary to the Lords
Commissioners of the Admiralty, to the Secretary of this Board
inclosing the following papers relating to the very bad condition
of George Island in the river Sierra Leon, dated the 22nd instant,
Letter from Mr. Samuel Staple, agent, dated on George Island, Sierra Leon, August 9th, 1751, relating to the bad state of that fort, etc.
State and condition of the fort and factory on George Island in the river Sierra Leon belonging to Messrs. Richard Oswald and Company, merchants in London, etc. Dated 19th August, 1751.
State and condition of the fort and factory on George Island belonging to Richard Oswald and Company, merchants in London. Dated January 2nd, 1751–2.
Extract of a letter from Captain Daniel of the Assurance, dated in Cape Coast Road, 1st March, 1752.
The draught of a representation to their Excellencies, the Lords Justices, upon the representation of the Trustees for establishing the colony of Georgia, mentioned in the preceding day's minutes, having been prepared was laid before the Board, agreed to, transcribed and signed.
Mr. Oswald, one of the proprietors of George Island in the river Sierra Leon upon the coast of Africa attending, was called in and he acquainted their lordships that Messrs. Grant and Sergen[son], the other proprietors, were not in town.
The letter and papers from Mr. Clevland, Secretary to the Lords Commissioners of the Admiralty, mentioned in the preceding day's minutes having been read, their lordships had some conversation with Mr. Oswald thereupon; and he was desired to lay before their lordships in writing an account of the present state of the settlement upon George Island and what steps the proprietors had taken to secure and preserve the same.
Mr. Hammersley, agent for Mr. Braithwaite, with his counsel, Mr. Aston, against the Act relating to the Three Spring Rivulet, and Mr. Paris, agent for the parishioners of St. Philip's, with his counsel Mr. Henley and Mr. Martin, in support of the said Act, attending as appointed by the minutes of the 18th instant, they were called in.
And Mr. Martin desiring that the evidence taken in behalf of
Mr. Bailey and others and transmitted under the seal of Barbados
might be read, the following depositions were read to prove that
the head of the spring is deemed to be in the highway, viz.:—
The deposition of Benjamin Smith of the parish of St. Philip's, aged 76 years, sworn the 17th of May, 1751.
The deposition of Samuel Pooler of the same parish, aged 67 years, sworn the same day.
The deposition of William Batson of the same parish, aged 50 years, sworn the same day.
The deposition of Elliot Sayer, Esquire, of the same parish, aged 61 years, sworn the same day.
The deposition of John Goodwin of the same parish, aged 53 years, sworn the same day.
The deposition of Anne Bryan of the same parish, aged 60 years, sworn the same day.
The deposition of John Weatherland of the same parish, aged 67 years, sworn the same day.
The deposition of Sarah Gibbes of the same parish, aged 72 years, sworn the same day.
Read also the following depositions, which confirm the point
contained in the foregoing, on the personal knowledge of several
of the deponents, and further shew that the road was not altered
by publick authority but by passengers for their convenience,
that many of the poor borderers will be ruined if the Act be
repealed, and that the lands adjacent to the stream would thereby
decrease at least ⅓rd in their value, viz.:—
The deposition of Francis Wilse, Esquire, of the parish of St. Philip, aged 64 years, sworn 17th May, 1751.
The deposition of John Blades of the said parish, aged 60 years, sworn the 19th March, 1752.
The deposition of William Brigs of the same parish, aged 49 years, sworn the same day.
The deposition of William Taylor of the same parish, aged 58 years, sworn the same day.
The deposition of James Carter of the same parish, aged 39 years, sworn the same day.
The deposition of George Wood of the same parish, aged 36 years, sworn the same day.
Read also the following depositions to prove from remains of
causeways and tracts of carriages that the road formerly went
over the spring head; that old Braithwaite bought the estate
cheap, on account of it's being marshy by the overflowing of the
spring; that the inhabitants joined their slaves with his to open
and enlarge the channel, and that the value of the adjacent lands
is increased since the passing the Act:—
Deposition of Samson Wood, Esquire, of the parish of St. Philip's, aged 64 years, sworn 17th May, 1751.
Deposition of William Belgrove of the said parish, aged 37 years, sworn the 24th March, 1752.
Read also the two affidavits of Joseph Thorne and James Graeme sworn in 1713.
Mr. Martin then observed to their lordships that the only objection which had been made to the Act in point of form was its' want of a suspending clause which objection could be of no force as the Act was passed in 1713 and the instruction requiring a suspending clause in Acts of the like nature was not given till 1721; that the determination must therefore turn upon the merits of the Act; that the principal objection to it is that it restrains Mr. Braithwaite's right which has been founded on the rise of the spring and on long usage; that with regard to the first of these points, there is great contrariety of evidence, but on the one side there is only tradition, on the other probable assertions; that it is however of no consequence where the spring rises, as the case cited by Mr. Henley proves that no right to control a stream can be derived from thence; that with respect to long usage he admits the facts as proved, but usage to make out a right must be immemorial, and even immemorial usage does not give a right, but is only evidence of such right; that in a case at Hereford wherein a road over another person's land was claimed on a usage of 200 years, a prior deed proving a real right set aside that usage; that nothing but a grant from the Crown could give Mr. Braithwaite such right as he claims, and he can't be supposed to have such grant, since he does not produce it or the register of it; that if it should be admitted that in strictness of law the family of Braithwaites had a right, yet the legislature upon principles of publick justice have often disposed of private property and that even without compensation as in the instance of Lincolns Inn Fields; that the exercise of the usage shews it an improper one to found a right; that the inhabitants having no prescriptive right, no more than Mr. Braithwaite, could not hinder him by law from applying the water to what uses he pleased, and therefore it became a proper object of the legislative authority: that there was great reason too for its' being exerted at that time, as it appears that Mr. Sandford in resentment for not being elected a member of the Assembly, had turned the stream into a stillpond, and after it was thereby poisoned, let it run down in some years' after it became wholesome again and then he turned it into the sea; that if it be admitted that there was injustice in passing the Act, yet there will be greater in repealing it now, as there have been many transfers of property since 1713, and as it has been proved that double prices have been paid for lands since the passing of the Act and in reliance upon the faith of it.
Mr. Aston in reply to what had been offered by Mr. Martin insisted that the Act was an invasion of private property and observed that in 1713 there was immediate application made for the repeal of it on account of the injustice it did to infants; that there were but sixteen years incurred both by father and son; and the matter when before the Board in 1713–14 was deferred at the instance of the parties who applied for the confirmation of the Act; that as to Mr. Braithwaite's right and usage, he did insist that the rise of the spring was essential, but had mentioned it only to shew there were false recitals in the Act; that he admits contrariety of evidence as to the rise, but that the strongest and for the greatest length of time is on Mr. Braithwaite's side: that Acts of ownership have been proved, such as the potwork, stillpond and the brickdam built by Skeete about 1660; that usage is the right and not the evidence of it; that to flow as it used to flow is the principle on which cases of this sort are always determined, as in the case of Brown and Best in Dorsetshire; that it is not pretended that Mr. Braithwaite had used the stream differently or made other channels than he prescriptively had exercised; that the usage has been proved from the first instance of settlement in the Island; that the opposite party have not produced any claim but by civility, with prescription or use, and therefore this Act gives them a right which they never had; that with regard to the pretended distress of the poor, they have not proved that there are no wells; that he admits the bad action of Sandford in turning the stream into a stillpond, but that is a very improper foundation for an Act of Assembly, when he might have been punished at law, by action of wrong; that with regard to the inequality of the Act, water is annexed to persons which ought to be to lands, that it has been proved the stream runs above half a mile in Mr. Braithwaite's estate, and that two-fifths of the lands through which the stream runs are his; that they have not proved there were ever inundations, and that as to the improved value of adjacent estates since the Act, they have instanced but one small purchase, without producing the deed, and if that instance be admitted, it is very likely that as the Act was then liable to be repealed, there may be a covenant in the purchaser's favour in case of such repeal.
Upon the whole Mr. Aston submitted to their lordships that the law of Barbados and of this kingdom is with Mr. Braithwaite; that the detriment to him occasioned by the Act is greater than the damage the opposite party pretend to place to all the other adjacent estates by the repeal of it; that the Act is arbitrary, inasmuch as whoever obstructs the execution of it is left to the mercy of two Justices, for all which reasons he hopes it will be repealed.
Their lordships took into consideration a sketch of observations and instructions for the use and information of the Committee of the Company of Merchants trading to Africa, containing their lordships' sentiments with respect to the late transactions of Mr. Melvill and the same having been agreed to, was ordered to be transcribed and transmitted to the Committee.