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 1753
Their lordships pursuant to the minutes of Tuesday last, the 29th of May, proceeded in the further consideration of the Act for running the line of partition between the provincee of New York and New Jersey, and the parties attending as desired, the counsel were called in and their lordships having heard what they had further to offer, they were ordered to withdraw, and it was agreed to take this affair into further consideration on Thursday next.
Read a letter from the Earl of Holdernesse to the Board, dated the 31st of May, 1753, signifying that his Majesty has appointed John Pownall, Esquire, to be Secretary to this Board jointly with Thomas Hill, Esquire, whereupon Mr. Pownall was admitted accordingly; and their lordships were pleased to appoint Mr. Edward Sedgwick to be sollicitor and clerk of the reports in room of Mr. Pownall.
The Secretary laid before the Board an account of the incidental charges of this office from the 5th of January to the 5th of April, 1753, amounting to three hundred, eighty-one pounds, seventeen shillings, and a letter to the Lords Commissioners 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, was signed.
Their lordships took into consideration the Order of the Lords of the Committee of his Majesty's Council, directing this Board to prepare and lay before them a plan for the government of Georgia, mentioned in the minutes of the 1st of last month, and the draught of a report thereupon having been prepared, was agreed to and ordered to be transcribed.
Read an Order of the Lords of the Committee of Council for Plantation Affairs, dated the 3rd of April, 1753. upon a representation of Mr. Tinker, Governor of the Bahama Islands, relative to the want of ordnance stores for those Islands, and a report made upon the said representation by the Ordnance Board, and directing this Board to write to Governor Tinker thereupon.
The Secretary laid before the Board the following papers
received from the Committee of the Company of Merchants
trading to Africa, viz.:—
An account of the money received and expended by the Committee of the Company of Merchants trading to Africa for the support and improvement of the forts and settlements upon the said coast.
Copy of a letter from James Skinner, Esquire, to Messrs. Frederick Smith and Robert Lawrie, chief agents at James Fort, Gambia, dated 12th June, 1752, to the Committee of the Company of Merchants trading to Africa.
Copy of a letter dated 27th June, 1752, from Thomas Melvill, Esquire, Governor of Cape Coast Castle, to the Committee of the Company of Merchants trading to Africa.
Copy of a letter dated the 20th of August, 1752, from Thomas Melvill, Esquire, Governor of Cape Coast Castle, to the Committee of the Company of Merchants trading to Africa.
Mr. Hollier, Secretary to the Committee of the Company of
Merchants trading to Africa, attending was called in, and he
presented to the Board the following papers, viz.:—
Letter from the Committee of the Company of Merchants trading to Africa, dated 30th May, 1753, inclosing copy of two representations from the merchants of Bristol and Liverpool complaining of the trade carried on by the officers of the Company at the several forts for negroes, and of other irregular proceedings by the said officers.
Substance of instructions intended to be sent by the Committee of the Company of Merchants trading to Africa, to the Governor of Cape Coast Castle and other officers upon the coast.
The said papers having been read, the Secretary acquainted the Board that Mr. Wansey who signed the above-mentioned representation from Bristol was attending without with another gentleman, and that they had something to offer to their lordships upon it; whereupon they were called in and Mr. Wansey moved their lordships to appoint a day for hearing what the merchants had to offer in support of the allegations of the said representation; which having been agreed to, Wednesday the 20th instant was appointed for taking the same into further consideration, of which Mr. Hollier was desired to acquaint the Committee, and Mr. Wansey was directed to give notice thereof to the agent or other person properly authorized to represent the merchants of Liverpool; and then they withdrew.
Their lordships took into consideration the Act passed in the province of New Jersey in 1747–8 for running the line of partition between that province and New York and came to the following opinion and resolution thereupon, viz.:—
The considerations which arise upon this Act are of two sorts,
Such as relate to the principles upon which it is founded, and such as relate to the transactions and circumstances which accompany it.
If the Act and the regulations prescribed by it are founded upon principles of justice, and are consistent with the established forms of the constitution in such cases, and can be rendered effectual to answer the proper and legal purposes of it, the Act ought to be confirmed.
But if on the contrary it should be found unjust, unwarrantable and ineffectual, it ought to be rejected.
As to the first it is an Act of the province of New Jersey interested in the determination of the limits and in the consequential advantages to arise from it.
consequential advantages to arise from it.
The province of New Jersey in it's distinct and separate capacity can neither make nor establish boundaries; it can as little form regulations for deciding differences between itself and other parties concerned in interest.
The established limits of it's jurisdiction and territory are such as the grants under which it claims have assigned.
If those grants are doubtful and differences arise either upon the construction or upon the matter of them, we apprehend that there are but two methods of deciding them, either by the concurrence of all parties concerned in interest, or by the regular and legal forms of judicial proceedings.
The legal method of proceeding we conceive must be derived from the immediate authority of the Crown itself, and be signified by a Commission from his Majesty under the Great Seal.
The Commission of subordinate officers and of derivative powers are not competent nor adequate to such purposes.
To judge otherwise would be to set up ex parte determinations and incompetent jurisdictions in the place of justice and legal authority.
If the Act of New Jersey cannot conclude other parties, it cannot be effectual to answer the ends proposed.
That it would not be effectual to form an absolute decision in this case, the legislature of that province seems sensible, whilst it endeavours to place in the hands of the Crown the decision of one point relative to this matter and of considerable importance to it, which power the Crown could not derive from them without their having the power to establish the thing itself without the assistance of the Crown.
As we think the present Act without the concurrence of other parties concerned in interest unwarrantable and ineffectual, the next point to be considered is what transactions and proceedings have passed towards obtaining such concurrence.
The principal parties interested are the two provinces of New York and New Jersey and the Crown.
The provinces are interested with respect to their government and jurisdiction and his Majesty with respect [to] sovereignty, seigneurie and property.
With regard to the transactions on the part of the province of New York, we shall only observe, that whatever agreements have been made formerly between the two provinces for settling their boundaries, whatever Acts of Assembly have passed, and whatever Commissions have been issued by the respective Governors and governments, the proceedings under them have never been perfected, the work remains unfinished and the disputes between the two provinces subsist with as much contradiction as ever.
But what we principally rely upon is, that those transactions were never properly warranted on the part of the Crown, that the Crown never participated in them, nor could be bound with respect to its' interests by proceedings so authorized.
The interests of the Crown may be considered in three lights, either as interests of sovereignty respecting mere government; of seigneurie, which respect escheats and quit rents; or of property, as relative to the soil itself, which last takes place in such cases where either the Crown has never made any grants of the soil, or where such grants have by actual escheats reverted to it. With regard to the former, viz., those of sovereignty it may be alledged, that they are not materially effected by the question, as both provinces are under the immediate government and direction of the Crown, but they stand in a very different light with respect to the interest of quit-rents and escheats, and we think with respect to them the situation of the two provinces makes a material alteration; for though the province of New Jersey is not under regulations either of propriety or charter with respect to it's government, yet it is a propriety province with respect to the grant and tenure of its territory; and consequently as New York is not in that predicament, the determination of the boundary in prejudice of that province will affect the interest of the Crown, with respect to the tenure of such lands as are concerned in this question, it being evident that whatever districts are supposed to be immediately held of the Crown in New York by being supposed to be included in the limits of the province of New Jersey, will immediately pass to the Proprietors of that province and be held of them, by which means the Crown will be deprived of its escheats and the quit rents pass into other hands; and as to what has been said to obviate this difficulty, that the Crown having made absolute grants of the whole territory that can possibly come in question under the determination of the boundary, and reserved only trifling and inconsiderable quit rents, it does not seem to us conclusive, since it admits as interest in the Crown, the greatness or smallness of which is merely accidental and does not affect the essence of the question; though we cannot help observing that in the case of exorbitant grants with inconsiderable quit rents and where consequently it may reasonably be supposed that the Crown has been deceived in such grants by its officers, the contingent right of property in virtue of it's seigneurie seems rather to be enlarged than diminished.
This being the case, it appears to us that Governor Hunter ought not to have issued his Commission for running the line above-mentioned without obtaining a previous direction and instruction from the Crown for that purpose; a Commission issued under such circumstances can be considered with respect to the interests of the Crown in no other light than as a mere nullity; that even with respect to the province of New York we observe the Commission is questionable, as it does not follow the directions of the Act of 1717, which declares that the Commission to be issued shall be granted under the joint authority of the Governor and Council of that province; but as it has been urged that the Crown has since confirmed and approved these transactions either by previous declarations or by subsequent acquiescence, and consequently participated in them as far as to conclude itself, we shall in the next place consider the circumstances urged for that purpose. We do not think that anything has been transacted in such a manner as to support such an inference. It has been urged that the Crown, by giving consent to an Act, passed in New York in 1717, for paying and discharging several debts due from that colony, etc., concluded and bound itself with respect to the subsequent proceedings had under the Commission issued by Governor Hunter. The view and purpose of that Act appears to us so entire and so distinctly formed for the purpose of raising money and establishing funds so various and so distinct from any consideration of the disputes subsisting in the two provinces with respect to the boundaries, that we cannot conceive a single clause in so long and so intricate an Act can be a sufficient foundation to warrant the proceedings of Governor Hunter subsequent to it without a special authority from the Crown for that purpose; and there is the more reason to be of this opinion as the Crown by giving its assent to that Act can be construed to have assented only to the levying money for a future purpose, which purpose could not be effected by any Commission but from itself, and can therefore never be supposed to have thereby approved a Commission from another authority at that time actually issued and proceeded upon previous to that assent.
With respect to the transactions between the province of New York and Connecticut, alledged to be similar to and urged as a precedent, and even as an approbation of the matter now in question, we think the two cases materially and essentially different from each other. The Act, passed in New York in 1719, for running and ascertaining the lines of partition and division between this colony and the colony of Connecticut recites, that in the year 1683 the Governor and Council of New York, and the Governor and Commissioners of Connecticut did in Council conclude an agreement concerning the boundaries of the two provinces; that in consequence of this agreement Commissioners and Surveyors were appointed on the part of each colony, who actually did agree, determine and ascertain the lines of partition, marked out a certain part of them and fixed the point from whence the remaining parts should be run; that the several things agreed on and done by the said Commissioners were ratified by the respective Governors entered on record in each colony and in March, 1700, approved and confirmed by King William's Order in Council and letter to his Governor of New York, from which recital it appears to us, that those transactions were not only carried on with the participation, but confirmed by the express Act and authority of the Crown, and that confirmation made the foundation of the Act passed by New York for settling the boundaries between the two provinces.
As to the argument which has been urged in support of the Act, that the transactions already passed for settling the boundary have determined the most material parts of it, and that one point being fixed and the other left to the Crown to fix at it's pleasure the remainder is of little consequence and of no difficulty, we observe in the first place that the Crown has been no party to those transactions; that the merits and execution of them are contested even by those who were parties to them, that the Crown would by such a method be drawn in to give it's assent to matters in which it has never participated, and to authorize future determinations upon it's interests, under proceedings which it may have no opportunity to examine.
As therefore it appears to us that the proceedings in this affair were not warranted in the first instance by proper authority, and as the interests of the Crown may be immediately affected by this Act carried on without any proper participation on the part of the Crown, we cannot think it adviseable to recommend it to his Majesty for his approbation.
Ordered that this foregoing resolution and opinion be communicated to the agents for the respective provinces, and that the Secretary do desire their attendance at the Board on Wednesday, the 4th of July.
Read an Order in Council approving a representation of this Board proposing Sir Danvers Osborn, Baronet, to be Governor of New York in the room of the Honourable George Clinton, Esquire, and directing this Board to prepare a Commission and instructions accordingly.
The two following copies of Orders in Council were laid before
the Board and read, viz.:—
Copy of an Order in Council, dated the 6th instant, approving a representation of this Board together with a warrant prepared by them directing the Governor of the Leeward Islands to swear and admit Charles Pym Burt, Esquire, to be one of the Council in the Island of Nevis.
Copy of an Order in Council, dated the 6th instant, approving a representation of this Board together with a warrant prepared by them directing the Governor of the Bahama Islands to admit and swear John Gambier, Esquire, to be of the Council in the said Islands in the room of James Jenner, Esquire, deceased.
Mr. Kilby, agent for Nova Scotia, attending was called in and and presented to the Board a memorial to the Lords Commissioners of the Treasury praying that the sum of £7723 17s. may be issued to him for payment of certain demands on account of the service of Nova Scotia.
Mr. Martyn, agent for Georgia, attending was called in and he presented to the Board a memorial to the Lords Commissioners of the Treasury praying that the money granted by Parliament in the last session for the support of Georgia, may be issued to him, he expecting that Bills will be shortly drawn upon him on that account.
Their lordships pursuant to the minutes of the 6th instant,
took into consideration the letter from the Committee of the
Company of Merchants trading to Africa, inclosing copies of two
representations of the merchants of Bristol and Liverpool complaining of the trade carried on by the officers of the Company
at the several forts for negroes and other irregular proceedings of
the said officers; and Mr. Wansey, agent in behalf of the
merchants of Bristol, and Mr. Chalmers, agent in behalf of the
merchants of Liverpool, in support of the allegations of the said
representations, and also the Committee of the Company of
Merchants trading to Africa, attending as desired, they were
called in, and Mr. Wansey and Mr. Chalmers severally produced
letters from several merchants of Bristol and Liverpool, desiring
they would attend the Board upon this affair and the letter from
the Committee of the Company inclosing the afore-mentioned
representations having been read, Mr. Wansey laid before the
Board the following papers in support of the allegations of the
representations from the merchants of Bristol, viz:—
Deposition of William Brown taken before D. Peloquin, alderman of Bristol, the 16th day of June, 1753.
Deposition of David Hamilton taken before John Clements, mayor of Bristol, the 16th day of June, 1753.
Extracts of a letter from Thomas Westgate to John Russell, dated at Cape Coast Castle, the 14th December, 1752.
Deposition of Abraham Graham taken before John Clements, mayor of Bristol, the 16th June, 1753.
Certificate of John Stokes, dated Gold Coast of Africa, 14th March, 1753.
Copy of a letter from several merchants of Liverpool to Mr. Thomas Chalmers, dated at Liverpool, the 15th June, 1753, desiring him to attend this Board on their behalf upon the subject of the complaints against the officers of the Company upon the coast of Africa.
Copy of a letter from several merchants of Bristol to Mr. William Wansey, dated Bristol, June 16th, 1753, desiring him to attend this Board on their behalf upon the subject of their complaints against the officers of the Company upon the coast of Africa.
The said papers having been read their lordships at the request of Mr. Wansey and Mr. Chalmers proceeded to examine evidence touching the allegations of the said representations and Messrs. Roberts, John Russell, John Smallman Gardiner and Alexander Graham having been examined, their lordships heard what the Committee of the Company of Merchants had to offer why they thought a total restriction upon their officers from trading for negroes would be improper, and it being late, the parties were ordered to withdraw, and their lordships agreed further to consider of this affair on Tuesday next, the 26th instant.
Their lordships being informed that Lord Baltimore and Mr. Penn were attending without with their counsel and sollicitors pursuant to the minutes of the 22nd of May last, in order to be heard upon the petition of Messrs. Penn praying that the boundaries between the province of Pennsylvania and his Majesty's territories may be set out and ascertained, they were called in and the counsel on the part of Lord Baltimore having informed their lordships that a petition had been presented by Lord Baltimore to his Majesty containing some new propositions relative to this affair which was intended to be referred to this Board, their lordships with the consent of Messrs. Penn's counsel agreed to postpone the further consideration of this affair untill the reference of Lord Baltimore's petition shall come down from the Council: and then the parties withdrew.
The Secretary laid before the Board a paper entitled, The humble petition of Lieutenant Charles Mackey in behalf of himself and the rest of the inhabitants of the towns of Darien and Frederica in Georgia; upon consideration whereof their lordships were of opinion that as it related to matters not within their province and contained complaints against a military officer, not subject to the jurisdiction of this Board, they were not authorized to receive the same, and accordingly ordered the Secretary to return it to Mr. Mackey and acquaint him with their opinion.
Ordered that an extract be made of so much of the above letter as relates to the proceedings of the French and Spaniards in their respective settlements to be transmitted to the Earl of Holdernesse, and that the draught of a letter to his Lordship therewith be prepared.
Read a letter from Mr. Grenville, Governor of Barbados, to the Board, dated the 21st of April, 1753, containing an account of the proceedings of a vessel which went from that Island to Tobago to cut wood contrary to the agreement between the two Crowns.
Ordered that a copy be made of the said letter to be transmitted to the Earl of Holdernesse, one of his Majesty's Secretaries of State, and that the draught of a letter to his Lordship therewith be prepared.
Read a letter from Mr. Fleming, Lieutenant General and
Commander in Chief of the Leeward Islands, to the Board, dated
at St. Christopher's, the 4th of April, 1753, containing a further
account of his proceedings with respect to the riots and disorders
in the Island of Nevis, and transmitting:—
His speech to the Council and Assembly of St. Christopher's of 5th April, 1755.
Minutes of Council of Nevis from the 26th of September to the 20th of December, 1752.
Minutes of Assembly of Nevis from the 3rd of January to the 20th of December, 1752.
Minutes of Assembly of St. Christopher's from the 24th of August, 1752, to the 5th of March, 1753.
An Act passed in Montserrat, entitled An Act to repeal an Act entitled an Act for settling the Militia of Montserrat, and also for the better Regulation of the Militia. Passed the 11th June 1752.
An Act passed in St. Christopher's, entitled An Act against excessive, deceitfull and disorderly gaming. Passed 16th of December, 1752.
Ordered that an extract be made of so much of Mr. Fleming's letter as relates to his transactions with the Governor of the Dutch settlement at Demerara near Essequibo concerning a runaway slave and to his proceedings against some persons in the Virgin Islands who robbed a small Spanish vessel there, to be transmitted to the Earl of Holdernesse, one of his Majesty's Secretaries of State, and that the draught of a letter to his Lordship therewith be prepared.
Read a letter from Mr. Belcher, Governor of New Jersey, to the
Board, dated 22nd February, 1753, signifying his having laid
before the Council and Assembly his Majesty's instruction
relative to a revisal of the laws and inclosing:—
Minutes of Council in November and December, 1752.
Printed votes and proceedings of the General Assembly on the 14th of December, 1752.
Read a petition of Adam Anderson, agent for the incorporated
Society in Scotland for propagating Christian Knowledge in
foreign parts, in behalf of the missionaries of the said Society,
and praying that the Governors of New York and New Jersey
may be directed to give every reasonable assistance to those
who reside in those provinces, inclosing:—
State of the Society in Scotland for propagating Christian Knowledge.
Letter from Mr. John Brainard employed by the Scotch Society for propagating the Gospel, a missionary to the Indians in America, dated at Bethel in New Jersey, October 4th, 1752.
Ordered that the Secretary do acquaint Mr. Anderson that the Board will give directions to the Governors of New York and New Jersey to enquire into the facts set forth in Mr. Brainard's letter and to take all possible care that the missionaries employed by the Society do not meet with any molestation or disturbance in the execution of their mission.
The Secretary laid before the Board the following papers
received from the Committee of the Company of Merchants trading
to Africa, viz.:—
Copy of a letter from Thomas Melvill, Esquire, Governor of Cape Coast Castle etc., to the Committee of the Company of Merchants trading to Africa. Dated the 13th December, 1752.
Copy of a letter from James Skinner, Esquire, Governor of James's Fort, Gambia, to the Committee of the Company of Merchants trading to Africa. Dated the 31st March, 1753.
The Secretary laid before the Board a draught of general instructions for Sir Danvers Osborn, Governor of New York, prepared pursuant to their lordships' order, and some progress was made in the consideration thereof.
The draught of a letter to Lord Holdernesse inclosing the extract of one from Mr. Knowles, Governor of Jamaica, having been prepared pursuant to the minutes of the 21st instant, was agreed to, transcribed and signed.
The draught of a letter to Lord Holdernesse inclosing the extract of one from Mr. Fleming, Lieutenant General of the Leeward Islands, having been prepared pursuant to the minutes of the 21st instant, was agreed to, transcribed and signed.
The draught of a letter to Lord Holdernesse inclosing the copy of one from Mr. Grenville, Governor of Barbados, having been prepared pursuant to the minutes of the 21st instant, was agreed to, transcribed and signed.
The draught of a letter to Mr. Belcher, Governor of New Jersey, relative to the missionaries settled in that province by the Society for propagating Christian Knowledge having been prepared pursuant to the minutes of the 21st instant, was agreed to, transcribed and signed.
Ordered that the Secretary do prepare a state of the case with respect to Mr. Clinton's appointment of Mr. Delancy to be Chief Justice of New York during good behaviour; and the said case having been accordingly prepared was agreed to and ordered to be sent to the Attorney and Sollicitor General for their opinion thereupon.
Their lordships being informed that Mr. Wansey and Mr.
Chalmers, agents in behalf of the merchants of Bristol and
Liverpool, and also Mr. Hollier, Secretary to the Committee of
the Company of Merchants trading to Africa were attending
without pursuant to the minutes of Wednesday last, they were
called in and Mr. Wansey and Mr. Chalmers presented the following papers to the Board as the substance of what they had further
to offer with respect to the complaints under their lordships'
Memorial of Messrs. Wansey and Chalmers in behalf of the merchants of Bristol and Liverpool with respect to the complaints exhibited by the said merchants against the officers and servants of the Committee of the Company of Merchants trading to Africa.
The affidavit of John Roberts, merchant.
The foregoing papers having been read, their lordships heard
what Mr. Wansey and Mr. Chalmers had to offer thereupon, and
the parties being withdrawn their lordships, upon consideration
of what had been laid before them by the merchants and by the
Committee of the Company of Merchants trading to Africa, and
also upon consideration of the spirit and intention of the Act of
Parliament lately passed for extending and improving the trade
to Africa, came to the following opinion, viz.:—
That the officers and servants employed by the Committee of the Company of Merchants trading to Africa at the several forts and settlements upon the coast of Africa ought not to be allowed to trade for negro slaves further than to the amount of the salaries allowed them by the Committee, and that such slaves should be disposed of for ivory, gold, bills of exchange or the proper returns to Great Britain, or sent on account of such officers and servants to America, and that on no account they should be sold or disposed of in barter for goods with any ships or in any other manner whatever, but that a proper time ought to be allowed to the said officers and servants to dispose of their present stock of goods which will be recommended to the consideration of the Committee.
The parties being called in, the foregoing minutes were read to them, and Mr. Hollier in the name of the Committee moved their lordships for a copy thereof and also of the foregoing memorial of Messrs. Wansey and Chalmers, and then they withdrew.
Read a letter from Mr. West, Secretary to the Lords of the Treasury, dated the 26th of June, 1753, referring to this Board by order of their Lordships a petition of Sir Danvers Osborn, Baronet, Governor of New York, praying for a sum of money for presents to the Indians.
Their Lordships took into further consideration the draught of instructions prepared for Sir Danvers Osborn, Governor of New York, and the same having been agreed to were ordered to be transcribed and the draught of a representation to his Majesty thereupon to be prepared.
Their lordships took into consideration the Act passed in Barbados in the year 1713 relating to the Three Houses Spring Rivulet, mentioned in the minutes of the 24th of last month, and ordered the Secretary to transmit a copy of the said Act to his Majesty's Attorney and Sollicitor General for their opinion thereupon.