America and West Indies
October 1704, 12-20

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Institute of Historical Research

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Cecil Headlam (editor)

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1916

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275-293

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'America and West Indies: October 1704, 12-20', Calendar of State Papers Colonial, America and West Indies, Volume 22: 1704-1705 (1916), pp. 275-293. URL: http://www.british-history.ac.uk/report.aspx?compid=73669 Date accessed: 22 September 2014.


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October 1704, 12-20

Oct. 12.
Whitehall.
602. William Popple to Josiah Burchett. The Governor of New England having sent over a particular Messenger to sollicit for a greater Naval strength to attend that Province, the Council of Trade and Plantations desire to be informed what directions H.R.H. has given upon the Representation referred to him Aug. 3. [C.O. 5, 911. p. 395.]
Oct. 13.
Whitehall.
603. W. Popple, jr., to Richard Warr. Encloses following, Mr. Secretary Harley being out of town. Annexed,
603. i. Council of Trade and Plantations to Mr. Secretary Harley. In reply to yours of Sept. 12 [q.v.]. Upon a former complaint of the like nature, we did represent to the Agents of [Jamaica] as Cal. 1703, p. 722. The Agents answered that upon the arrival of a single Regiment at Jamaica the people gave them greater allowance till the manner of their subsistance might be settled from England; but that there being 2 Regiments now there, the people were unable to continue the same allowances to them both, so that now each officer has 10s. a week and each private soldier and noncommissioned officer 5s. per week allowed by the Island over and above their English pay. They promised to write to their Correspondents that they might endeavour to persuade the Members of the Assembly to secure and ascertain quarters to the officers and soldiers instead of money by a clause in some subsequent Act, which nevertheless has not yet has its effect. But we conceive that nothing can be better for the officer and soldier, for H.M. service and the security of the Island, than the building of barracks in proper places where the Regiments may be lodged under fitting regulation, as in Ireland, and in several garrisons in England, and wherein the officers may have due care of the health of their soldiers by restraining them from many extravagancies they are subject to in open and distant quarters. We humbly offer that fresh provisions might be distributed to the officers and soldiers daily from the stores that may be brought from the Northern Plantations either by undertakers or officers to be appointed by H.M. for that purpose, which provisions (freight and convoy being supplyed by H.M.) may be furnished at as cheap rates as in England. Enclose Representation of Oct. 5, 1703. And we do not doubt but that the Assembly of Jamaica might be induced readily to contribute a considerable summe towards the building of such barracks, if H.M. would be pleased likewise to assist and enable them in the carrying on of the work. As to the advantages or priviledges to be allowed the soldiers at Jamaica, we humbly offer that they ought to be the same at least with those enjoyed by soldiers elsewhere, vizt. to be admitted into Chelsea Hospital after 20 years service of the Crown, or being disabled the service, unless it shall please H.M. to shorten the term of service for those that go to the West Indies, after which they may be admitted into the said Hospital or have a pension equivalent thereunto. We think it very necessary for the safety of Jamaica and the Leeward Islands that six additional Companies raised for those Islands, or the like number of men, be forthwith dispatched thither [C.O. 138, 11. pp. 335–338.]
Oct. 13.604. Attorney General to the Council of Trade and Plantations. Report on the Acts of Pennsylvania, Nov. 1700 and Oct. 1701. (1) As to the Law by which Liberty of Conscience is allowed to every person that shall onely own that God Allmighty is ye Creator, Upholder and Ruler of ye world, and that he is oblidged in conscience to live peaceably and quietly under ye Civil Government, and every person so professing is to be unmolested for his conscientious perswasion or practise, and is not obliged to any religious worship whatsoever, but on Sunday are onely enjoyned for their ease to abstain from toyle and labour, I am of opinion this Law is not fitt to be confirmed, no regard being had in it to the Christian Religion, and also for that in the indulgence allowed to the Quakers in England (I Wm. and Mary c. 18), they are oblidged by declaration to profess faith in God and in Jesus Christ, etc., and also for that none can tell what conscientious practises allowed by this Act may extend to. (2) As to the Act against Riots, Rioters and Riotous Sports, plays and games, as far as it concerns riots onely I have no exception to it, but a penalty of 20s. is laid on the introducer of rude or riotous sports or prizes, stage plays, masks, revels, bull-baitings, cockfightings, bonfires with such like, or shall practise the same, which (such like) I am of opinion leaves too great room to make persons offenders by construction at ye will of the Judge; the like objection is to another part of this Law, that makes every person to forfeit 5s. or to be imprisoned 5 days in the House of Correction that shall be convict of playing at cards, dice, lotterys or such like enticing vain and evil sports and games, and besides I think some innocent sports are thereby prohibited without reason. (3) The Act against adultery and fornication is not fit to be confirmed, for by it for Adultery a Bill of divorce is allow'd to the injur'd husband and wife, but the divorce is not explained whether to be a vinculo matrimonii or onely from bed and board, as ye Ecclesiastical Laws of England allow, which I think ought to be ascertained, and for fornication among single people, they are to marry, which may be unreasonable where young men may be drawn in by lewd women, and the [clause the]rin touching a marryed woman having a child in the absence [of her hus]band, makes her an Adultress unless she can prove by credible [evidence t]hat her husband cohabited or was in company with her, or had [been in the] county where she liv'd within a year before the birth etc., may in many cases be difficult on honest marryed women who [have hus] bands that are seafaring persons etc. (4) As to the Act against rape or ravishment, I think it not fit to be confirmed, for that castration is part of the punish[ment for] ye 2d. offence, wch. I think unreasonable especially in case of a [marryed ?] man. Besides that is a punishment never inflicted by any Law [in any of] H.M. Dominions, and no care is taken for healing the [castrated ?] person. (5) As to the Act against incest, sodomy and bestiality, I think the punishment of incest (intended by this Law) without ascertaining what it is by annexing a table of the degrees of kindred will be inconvenient and unreasonable, besides the incest intended by this Bill doth appear to be by marrying; wch. is onely incest, for it is such incest as a marry'd man may commit. Likewise castration of a marry'd man is part of his punishment for sodomy or bestiality, and there is no punishment for bestiality in a woman but to be divorced from her husband, wch. divorce is not ascertained what it is to be. (6) The Act against Bigamy I think unreasonable, for it divorces the first wife and yett makes the husband a prisoner for life at hard labour for the benefit of her and her children. (7) The Act against robbing and stealing I am of opinion is too large, being not only for stealing but also for fraudulently taking or carrying away of goods, which is unreasonable, for fraudulently taking may be by construction of Law where no consideration is, and the punishment besides is too great for a fraudulent taking, that is not felony by ye Law of England. (8) The Act about boats and cannoes I think fit to be confirmed for a time onely, there being a penalty of double ye value of a boat that shall be sett adrift without consent or leave of ye owner. (9) By the Act against breaking into houses, it is not said, with intent to steal, besides the punishment is fourfold satisfaction for wt. shall be taken, to be publickly whipt and to suffer six moneths imprisonment, and to be sold for the forfeiture, if not able to pay, and not said for how long, and selling a man is not a punishment allow'd by the Law of England. Therefore I think this Act not proper to be confirmed. (10) The latter objection applies to the Act against firing of houses. (11) The Act against murder, whereby whoever shall wilfully or præmeditately kill another person or be ye cause of or accessory to the death of any person, shall suffer death, I think it unreasonable, for that willfull killing may be in a sudden affray, therefore it should not be wilfully or præmeditately, but wilfully and praemeditately. (12) As to the Act for County seals, and against counterfeiting hands and seals, whereby counterfeiting or imitating any seal is punishable, I think ye word, imitating, too farr, it being general and not said with intent to defraud, there may be innocent imitation. (13) The Act about ye recording of deeds, which makes deeds good that are not inrolled, since former Laws did require inrollments of deeds, an after-purchaser whose deed is inroll'd may be overreach'd by allowing, as this Act doth, a former deed to be good wch. was not inroll'd, and makes inrollment of deeds not necessary, but evidence if inrolld, I think it unreasonable to take off the necessity of inrollment, wch. is a great security to titles in all ye Plantations. (14) By the Act limiting the presentments of the Grand Jury all indictments for trespass are taken off, where there is remedy for the party injur'd before the Justices, I think it not reasonable, for there may be prosecutions for the Crown also, as well as at the suit of the party for his dammages. (15) The Law about attachments, being to condemn the goods and lands of persons onely of ye Plantations, will prejudice all owners of lands and traders remaining in England, therefore I think it unreasonable and not fitt to be confirmed. (16) By the Act for naturalization power is given to ye Proprietor or Governor to naturalize all forreigners coming to the Plantations, all that were there before the Grant to proprietor, whether Dutch, Swedes, or Danes, are naturalized by this Act, and since the Proprietor hath no such power by his grant, I think it not fitt for him to give it himself by this Act. (17) The Act for ascertaining the discent of lands etc. giving a power to Executors to sell the real estates of persons dying [? intestate], and also making ye real, as well as the personal estates of persons dying intestate to be distributed, as personal estates of intestates are distributable in England, I think is inconvenient and unreasonable, especially because many of the owners of lands there are inhabitants in England. Besides personal estates of persons dying intestate are hereby made distributable otherwise than they are in England, wch. may affect the interests of persons residing in England. (18) The Act to prevent immoderate fines is against the Law of England, wch. is onely in case of amercements, not of fines, for if offenders have onely furniture of their calling and means of livelihood, they are not to be fin'd anything by this Law, and no direction is given by it for corporal punishment instead of a fine, which would have made this Law reasonable. (19) The Act about defalcations is a good Law, but had been better if the setting off of debts on stating accounts had been general and not restrained to the setting off of debts against others of the like dignity onely. (20) The Act for determining of debts under 40s. is a good law, but rent should have been excepted out of it, which being for lands, the title of ye lands may come in question, as if an eviction be pleaded by ye tenant, which it's not reason to have so arbitrarily and fully determin'd as this Law allows. (21) The Act to oblige witnesses to give evidence etc. requires two witnesses in all criminal cases, where by the Law of England one is sufficient unless in case of treason, and for small criminal matters not capital. I see no reason to require two witnesses, and great inconveniences may happen by it, and the trial there being by Jury, they will judge of the credit of the single witness. (22) The Act confirming devises of land and validity of nuncupative wills, which makes all devises of lands good, if the wills in writing be legally proved in the province within six moneths after ye testator's death, or within 8 moneths, if ye testator lived out of the Government, I think unreasonable, for that if a will be made in England, and all the witnesses here, they must be carried over to the Province to prove it there, which it will not be in the power of the devisee to doe. Therefore all that will be reasonable in this case to enact will be, that the will be proved in ye Province, or in the Chancery in England, and the bill, answer and depositions be transmitted thither under the seal of that Court, to be there registered. This Law also makes a nuncupative will good so that it be reduced into writing within two days after the decease of the Testator, and subscribed by two witnesses who were present at ye making and attested by a J.P. within 10 days after the death of ye Testator, which is different from the Act of frauds in England, and I am of opinion it is necessary to have the Law for wills the same as in England by that statute. (23) The Act impowering widows and administrators to sell so much of ye lands of intestates as may clear their debts etc. I think unreasonable, for that such sale may be made notwithstanding any marriage settlement, and there is no rule sett in wt. manner younger children and in what the elder shall be provided for. (24) By the Act for the taking lands in execution for the payment of debts where the sheriffe cannot come at other effects to satisfy the same, all lands are liable to sale on judgment, so that the messuage and plantation where the Defendant lives be not sold in less than a year after judgment, and before sale the lands to be appraiz'd by 12 men of the neighbourhood, and then to be sold by the sheriffe, and such sale shall make a fee simple estate therein to the buyer or creditor as fully as they were to the debtor etc. This Law differs from the Law of England but may be practicable there. (25) The Act for priority of payments to the inhabitants of this Government preferrs debts on simple contracts due to the inhabitants before all forreign debts, which being prejudiciall to the people of England is fitt to be rejected. In this Law there is a provisoe for factors at coming into that Colony to enter into ye County Court the name of the person adventuring by him, and the value of the goods adventured, in wch. case such adventurers may come in for their debts with the inhabitants. But I think it unreasonable to exclude the adventurer if his factor will not make such entry, and if no such entry made by ye factor, then the goods are to be taken to be his own, so farr as to be liable to his debts in the country, which is unreasonable. (26) To the Act for the trial of negroes I see no objection, but that a negro is to be castrated for attempting to ravish a white woman. (27) The Act about departers out of this Province obliges all masters of vessels coming to that Province to give 300l. bond to the Naval Officer to observe the Laws of that Government, which I take to be unreasonable, since all ye people of England have a right of trading thither, and ill use may be made in the Plantations of such bonds, if given. (28) The Act against the mixing and adulterating strong liquors lays a severe penalty on any person selling rumm etc. mixed with water etc. by the judgment of two credible evidences being convicted thereof. I think it unreasonable, it not being said, knowing ye same to be mixed. (29) The Act for appointing the rate of the money within this Province and Territories, I think fit to be repealed, H.M. having settled the values of coins in all ye Plantations. (30) By the Law against drunkenness and health-drinking penalties are laid on persons for drinking healths without being drunk, which is unreasonable. (31) The Act for bailing of prisoners etc. gives double dammages against Informers or prosecutors, where a man is wrongfully imprisoned, which will be so where the person prosecuted is acquitted, which will discourage prosecutions or probable causes, therefore this Law not excepting where there is probable cause for the prosecution, I take to be unreasonable and not fitt to be confirmed. (32) By the Act for the effectual establishment of freeholders, all the titles under the Crown before the grant to the Proprietor, and all his grants are confirmed, and the lands of any person may be resurvey'd within two years after the publication of this Act, by the Proprietor or his heirs, and the Proprietor to have ye overplus measure and ye possessor to have the refusal, and if less than measure, the Proprietor to make good the deficiency. This is relating to the property of ye Governour and inhabitants only, and though inconveniencys may happen by it after a long possession, yet if the Governour and Country like it, I have nothing on that account to object. But there is a clause which makes a survey good, notice being given to two neighbours, if the owner of ye land be not known, which is unreasonable, to bind a man by a survey wch. he hath no oportunity to be present at. There is also a provisoe that the survey shall not conclude infants, persons beyond the sea, marryed women or lunatics, and yet no further time than the two years is given to survey where such are concerned, wch. may render the Law in great part useless. There is a clause here which allows land purchased by aliens who die before they are naturalized to descend to their wives and children, which I take to be unreasonable, in letting in aliens to purchase and inherit before and without being obliged to be naturalized, and this implies that every alien that will come there, how inconvenient soever his being there may be, may demand and be naturalized. This Act also confirms all sales made by Attorneys, and the same is not restrained to such sales as shall be made while their authoritys are in force, which ought to have been mentioned. (33) The Law about arrests subjects a man to pay his debt by servitude if desired by the plaintiff where there is no visible estate, which may subject masters of ships and others coming to that Plantation to slavery, which I take to be unreasonable. (34) By the Law about false imprisonment double dammages are given against the prosecutor for wrongful imprisonment, wch. I take to be unreasonable, it not being said, or without probable cause. (35) By the Law about acknowledging deeds in Court, a deed delivered into the Court by the Attorney of the maker thereof is to stand good to all intents and purposes, wch. seems unreasonable, there not being expressly reserved a liberty of controverting the authority of ye Attorney, nor any direction to ye Court to examine the power of the Attorney. (36) The Law about seven years' possession is unreasonable, in giving an unquestionable title by seven years possession, not excepting ye possessors by virtue of particular estates as for years, life or in taile, wch. possessions ought to end with their estates. (37) By the Law about the manner of giving evidence, and against such as lie in conversation, every evidence convict of wilful falsehood shall suffer such penalty and damage as the person against whom he bares false witness should have undergone, if guilty, and make satisfaction to the party wronged and be infamous. This is further than the Law of England, for if a felon be acquitted, and ye witness be convicted, he is to be hanged, it not being restrained to civil cases. (38) The Law for the confirmation of the Laws, confirming all the Laws made in 1700 is not to be confirmed, if any one of them be repealed. (39) The Act for raising 1s. per pound and 6s. per head for the support of the Government and (40) the Act for raising 2,000l. for the Governour are expired. And as to all the rest, (65) I find nothing therein disagreeable to Law or Justice, or prejudiciall to H.M. Royall Prerogative. Signed, Edw. Northey. Endorsed, Recd. Oct. 13, 1704, Read July 18, 1705. 9 large pp. Partly torn. [C.O. 5, 1263. No. 27; and 5, 1291. pp. 165–191.]
Oct. 15.
Maryland.
605. Col. Quary to the Council of Trade and Plantations. My last to your Lordships was from Virginia by the Fleet that sayl'd thence June 8. I am now honoured with your Lordships' letters of Feb. 17 and March 17, etc. I am infinitely obliged to your Lordships for your generous favour in recommending me to succeed in the office of Surveyor Generall, etc. In my letter of Oct. 15 last, your Lordships will find that I have acknowledg'd the receipt of yours of Feb. 25, 1702/3, and have punctually pursued your orders, by serving the President and all the Magistrats of this Government [Pennsylvania, Ed.] with H.M. Order in Councill, relating to the Courts of Judicature, which hath been noeways comply'd with. I did inclose Mr. John Moore's letter which gave the particulars of their Proceedings in Court, to which I referr'd your Lordships, which very letter or a copy of it was sent hither by Mr. Penn to this Government, and the use they have made of it, hath been to discountenance him all they can and turn him out of all Offices he had in the Government. H.M. letter I did according to your orders deliver to Mr. Evans, who hath not been pleased to take the least notice of its contents to me or any Officer of the Admiralty, but two days after the delivery of it, he sent to Mr. Moore and discharg'd him from the office of Register formerly given him by Mr. Penn, the better to encourage him to execute the office of Attorney Generall, out of which office they have also turned him, this is all the effects which as yet we have found by H.M. letter to him for encouraging her officers of the Admiralty and Prize. I writt to your Lordships in Febry. last, and amongst other matters gave your Honours account, that I had served the Deputy Governour with H.M. Order in Councill, the answer he gave me was that he would take care that the Queen's Order should be complyed with, but to this very hour the Courts will not conform, nor is it in his power to oblige them, as doth appear by the enclosed Address of the Assembly, where they say that they cannot administer an oath, however are resolv'd to be Judges of the Courts, and have so little modesty as not only to refuse complying with the Queen's Order, but doe propose that all H.M. other subjects may be deny'd the benefit of the Law, and H.M. favour of being under the security of an oath, where it concerns their lives liberty and fortunes, but must have no other security than the Affirmations allowed the Quakers, etc. I find that noe other obligation was ever required by the Deputy Governour from the Members of the Councill, more than the oaths of a Councillor, whereas in all other Governments the first thing done is, to administer to the Councill, Assembly, all Justices and Officers the severall oaths appointed by Law, which was also done in Jersey, where severall of the Councill and most of the Assembly are Quakers, yett my Lord Cornbury oblig'd them to take all the oaths in their own form, which accordingly they did, before they were suffered to act, but here there was no such thing soe much as required of the Assembly which sate lately, this unaccountable proceedings surprizes all the neighbouring Governmts., and looks as if this was an independant Government, and not under the same Crown and Laws. Inclosed is a coppy of the Deputy Governour's Proclamation, wherein he makes use of H.M. name and authority, to exempt and excuse all the Quakers in the Government from bearing arms, without obliging them to do anything that might be an equivalent to it, but is pleas'd to command all other H.M. subjects, to arm and inlist themselvs at their utmost perill, and this without any Act of Assembly or Law to oblige them, which looks not only very partiall, but arbitrary, had he ordered the drumms to beat up for volunteers it would have been very proper, and would have answered ye end far better. I am not willing to enlarge on this subject, but will choose rather to referr it and the Proclamation to your Lordships' better judgement. I have inclosed the Deputy Governour's speeches. The Assembly of Pennsylvania mett again lately but would take no notice of H.M. Order about raising their quota for the support of Albany, nor doe anything for the settlement or security of the Country. There is at present a very great division and confusion in this Government, Quaker against Quaker, the generallity of the Country are very violent in opposing those that are for promoting Mr. Penn's intrist, the quarrell hath been carry'd on so far allready, that the Military and Civill Officers have been at clubb-law, the Quakers have indited the Officers of the Militia, not spareing the young gentleman Mr. Penn himself, who they have presented in their Courts, this hath so disobliged the Lieut. Governor, that he then resolved to put the Queen's Order in force, and by his Proclamation to declare the Proceedings of their Court against one of their Militia Officers voyd, this hath so insens'd the Quakers that they resolve on revenge, on this occasion the Lieut. Governour sent to me for the Queen's Order, his letter with my answer is inclosed, all things are at present in great confusion, and young Mr. Penn so very uneasy with the Quakers that he hath publiquely renounc'd them all and hath put on his sword, he goes home for England in the Jersy man-of-warr from New York, and resolvs to perswade his Father to resign up the Government to H.M., and indeed considering how confus'd and disharted this Governmt. is that they refuse to comply with any thing that tends to Mr. Penn's intrist, but oppose him all they can, I am of oppinion that Mr. Penn will now be willing to part with the Governmt. on farr easier terms than formerly, he hath quite lost the end of sending his son over hither. There was a proposall made by a great part of the Country, to raise a considerable summ of money for Mr. Penn, provided that he or his son came to settle amongst them in a certaine limmitted time, in pursuance of which agreement, the young Gentleman came over, but they are now so incens'd against bothe Father and son, that they will not advance a penny, so that he hath lost his labour, and returns empty, nor will the Quakers give Mr. Penn's Lieut. Governr. anything to support him. I did attend my Lord Cornbury all the time that the Assembly sate at Burlington, which was about a month, which time they trifled away to noe purpose, though my Lord recommended dispatch, and acquainted them that the Queen's service required his being in New York the beginning of Oct., and although they did in their Address to H.E. promise to answer all things propos'd to them in his speech, yett took noe notice of the essentiall matters till within few days before my Lord was obliged to goe to York, and then they brought in a Bill to settle the Revenue, they gave it a first reading and then adjourned the second reading for severall days, on purpose (as was said by some of their own House) that it might not be ready to pass; my Lord, who was noe stranger to every step they took, and what they designed, found that it was absolutely necessary for the Queen's service to dissolve them, which accordingly he did, to the generall satisfaction of the country, for these men were chosen by the voices of 43 men, when at the same time there appear'd in the feild about 400 who voted for others, and yet the sheriff returned the vote of the few. My Lord is very well assured of a good choice for the next Assembly, and that they will effectually answer all the ends of setleing and supporting the Government of that Province, the whole Country will be very easy and satisfyed to have an Assembly of their own free choice, then they will cheerfully pay their taxes and obey what laws are made. My Lord hath issu'd writts for a New Assembly to meet Nov. 8 next, and though it be late in the year, yet when they come with a resolution to doe business heartily, much may be done in a little time, for the cold weather will quicken them to dispatch and hasten home. I am now oblig'd in order to the Queen's service to hasten towards Virginia and North Carolina, and hope to be back time enough to attend my Lord Cornbury at the next Assembly in New Jersy, I am come thus far in my journey. The Assembly of this Province summoned by H.E. Governour Seymour broke up on Tuesday, Oct. 3, after they had sate about a month, in which time they revis'd most of all the Laws, the coppys of all which with the Journall of the Councill and Assembly are so volumnious that it's impossible for them to be transcrib'd and sent by this opportunity, but I am sure H.E. will take care that they be sent by the next. I will deferr the history of this Assembly till my return from North Carolina, but H.E. hath had as nice and difficult a game to play as ever Governour had, and had he not managed it with the greatest prudence imaginable, they would have made all offices in the Queen's gift worth nothing, few were chosen in this Assembly but such as had promis'd to oppose the intrist of the Crown as much as they could, and they were steady in this principall, wch. will appear to your Lordships when I tell you that notwithstanding all H.E.'s pains and endeavours, by a proper application to them both publickly and privatly, yet nothing could prevail on them to supply their quota for ye support of Albany, perhaps I may truly say that never such a sowre temper'd people ever mett together in an Assembly before, for which all the men of sence in the Government doe condemn them, however the Governour carryed himself towards them with that evenness of temper that they all went away very well sattisfyed with him, which I hope will have that good effect on them as to lett them see their folly, and mannage themselvs with more reason and prudence at their next meeting etc. In August last there was a prize brought into this Government, the manner of her caption being very uncommon I have sent the Master's deposition of the circumstances and manner of it. The prize is a small ship, her loading was 150 hhds. of brown sugar, 36 hhds. of white sugar, and a parcell of ginger, the particular weights and vallue of the said cargoe will appear by the enclosed account of appraisement which was done by very honest men on their oaths; Governour Seymour hath taken all the care and caution immaginable in every step relating to this affair, he hath by the advice of his Councill put the whole concern into the hands of Col. Hamond, one of the Councill, and a gentleman of worth and ability, and resolves that the whole effects shall continue in his hands untill he receives farther orders. The case of the prize being extraordinary, H.E. is not fully satisfy'd whither the property belongs to H.M. or the Lord High Admirall, nor what proportion thereof belongs to the captors, and therefore resolvs to have all the effects kept intire without any division, till he can receive directions about it; some time after the prize was brought in, and put into the custody of Col. Hammond, Mr. Hercules Couts came to H.E. and demanded the possession of the prize, by vertue of a Commission from one Dodd, a person altogether unknown to H.E. or any other in this Governmt., nor doth it appear how this Gentleman derives a power to depute Mr. Couts, soe that under this difficulty in a matter of such consequence, the Governour thought it very proper to have the advice of the Councill and accordingly he stated the case to them fully, to which they gave their opinion very unanimously, that since Mr. Dodd was altogether unknown, and that it did not appear how he derived a power for granting the Commission to Mr. Coots, they were of opinion that H.E. could not be safe in delivering up the ship and cargoe to him. The ship by which I send this sayls in the morning, so that I have not time to say what I designed, and I am forc'd to referr your Honours to my next, which I purpose shall be from Virginia. Signed, Robt. Quary. Endorsed, Recd. 15th, Read Jan. 19th, 1704/5. 4 closely written pp. Enclosed,
605. i. Copy of Address of the Assembly of Pennsylvania to Lt. Gov. Evans. [Duplicate of No. 359.vi.] Endorsed, Recd. Jan. 15, 1704/5. 1 p.
605. ii. Proclamation by Lt. Gov. Evans, Sept. 23, 1704. Forasmuch as H.M. in Council Jan. 22, 1702(3), ordered that all persons, who in England are obliged and are willing to take an oath in any publick or judicial proceeding, be admitted so to doe by ye proper officers and judges in Pensilvania and the Lower Counties, in default of all wch., or in case the Judges should refuse to administer the oath, their proceedings were thereby declared null and void, and whereas information has been given to me in Council by the Attorney General and petition of Enoch Storey of Philadelphia, Innholder, that at a Court held for the said City, Aug. 31 last, before Anthony Morris, Mayor, David Lloyd, Recorder, and the Aldermen of the same city, Storey, upon his prosecution of a traverse, required that William Bevon, the only evidence against him, might by that Court have an oath administered unto him, the said evidence at yt. time also publicly declaring his willingness to take the same, nevertheless the Court utterly refused to administer any oath, but in contempt of H.M. Order commanded him to take the affirmation for Quakers, which was done and the Jury found Storey guilty; I therefore pronounce the proceedings null and void. Signed, John Evans. Endorsed as preceding. Copy. 1 p.
605. iii. (a) Copy of Address of the Assembly of Pennsylvania to Lt. Gov. Evans. We the Assembly having after a considerable time spent in the service of the Country prepared and presented to the Governr. for his consideration certain bills to be passed into Laws for the securing the good people of this Province in their just rights, liberties and properties, being in expectation that if anything were thought therein unreasonably urg'd or wanted explanation, the Governor would have taken seasonable opportunitys of signifying the same to us, and thereupon a conference might be appointed between ye Governor or such as he may order on his behalf and a Committee of this House, wch. might have settled matters between us. But so it is, that nothing of this kind being effected while we have patiently waited the Governor's pleasure in the premisses we are given to understand that John Guest, one of the Council, not having had due regard to the welfare and prosperity of the good people of this Province, nor to the concord and amity intended by this Assembly to be kept and maintained with the Governor, hath used endeavours to render abortive our labours and care in the premisses by representing our proposalls in the said bills absurd unreasonable and monstrous, and ridiculing us both publickly and privatly, tending to the dishonour of this house and endeavouring to render us obnoxious to those we represent. Wherefore, whether such his practices be contrary to the rules of the Councill board or the oath or attestations there taken, we shall not determine, but earnestly desire that he may give satisfaction to this House, and receive a just rebuke for his said abusive, false and scandalous speeches etc.
605. iii. (b) Copy of a clause proposed for imposing the Quakers' Test. Whereas the Mayor, Aldermen, Freemen and Commonalty of the City are for the most part such as for conscience sake cannot take or administer oaths, and forasmuch as the solemn affirmation allowed by the Statute to be taken by the people called Quakers instead of oaths is and ought to be deemed as binding upon the consciences of other Christian people that take the same, as it can be upon the Quakers, seeing ye Affirmation and the Oath (tho' differently administered and taken) are noe more in construction of Law but religious obligations upon the consciences of those persons that take them, and in regard the affirmation is by the Parliament of England adjudged to be of the same force and effect as an oath in all Courts of Justice etc., there can be no just grounds for any to refuse the said affirmation instead of an oath. Therefore, least there should be a failure of Justice in that case, and to [the] end that the greatest part of such as can be serviceable to the Governmt. may not be rendered useless therein, Be it further enacted by the Authority aforesaid that all persons whatsoever, who from time to time shall be chosen officers of and for the said Citty and every of them who before they enter upon their respective offices subscribe ye Declarations and Profession of Faith as is required of members of Assembly, as is required by an Act for removing disputes concerning the sitting of this present Assembly, etc., and make their solemn affirmation and ingagements for the due execution of their offices according to the Charter, are hereby declared effectually qualifyed to act in their offices etc. as fully and amply as if they had been qualified by oaths; and all persons that shall take ye sd. solemn affirmation instead of an oath shall be allowed to serve as jurymen or upon inquests, and to give evidence etc. and all such solemn affirmations or declarations shall be adjudged to be of the same force and effect as if they had taken an oath, and be liable for similar penaltys etc. The whole endorsed, Recd. Jan. 15, 1704/5. 2¼ pp.
605. iv. Copy of the Speech of Lt. Gov. Evans to the Representatives of Pennsylvania. Duplicate of No. 359.ii. 1 p.
605. v. Copy of Lt. Governor Evans' speech to the Representatives of Pennsylvania, April, 1704. Duplicate of No. 359. iv. Endorsed as preceding. 1 p.
605. vi. Copy of the Condesention of the Representatives of the Three Lower Counties. Duplicate of No. 359.iii. 1 p.
605. vii. Copy of Reply [to preceding] from the Representatives of the Province to the Representatives of the Territories. We are sorry you should pretend you mett here in expectation of joyning with us in Assembly, whereas yourselves declared in the Conference wee had with you yesterday, that you could not act in conjunction with us, in regard you were called by the Governor's writt and we by Charter. Wee cannot conceive how you now can call the Disunion a pretended one, wch. has been so often debated in Assembly, and which the actions of your Representatives force upon us by their refusing to act with us on several occasions, and particularly by your slight of the Charter in neglecting to choose Representatives to serve in Assembly, 8ber 1702. And notwithstanding the then Lt. Govt. was pleased to indulge you in issuing forth his writts impowering the Countys you represent to make a new election, wch. they so farr complied withall as to choose and send up their Delegates to meet those of the Province upon Nov. 16 following, according to the tenor of the writts, yett your Representatives when assembled with them of the Province, after severall debates between them about acting conjunctly, were pleased to express their unwillingness thereunto, and declared their dislike of the Charter, and refused to agree to joyn together with us to act by it in Legislation. All wch. was more at large signifyed by the Representatives of the Province to the then Lt. Gov., whereunto they were necessitated by direction of the Charter, after the opposition made to the said union by the Representatives, so that being by virtue of the Charter formed into a distinct Assembly and our number settled accordingly, wee conceive it is not now in our power to alter our number without a violation of the Charter and trust reposed in us by those wee represent, neither can wee perceive any expedient proposed by you (tho' desired by us in the Conference yesterday) to reconcile your request (of an union) with the Charter, wch. wee presume is a duty incumbent on you at whose door the disunion is, since you seem to desire a reuniting. Wee need not inform you that by this Charter you have still the opportunity of forming yourselves into a distinct Assembly and enjoyning [sic] the priviledges thereof as well as the Province, wch. wee hope by our candour and good neighbourhood towards each other may prevent the inconveniency and prejudice you seem to doubt as the consequence of our acting separately, and not prove prejudiciall to the prosperity and safety of the Government under the present administration. This being our plain and genuine answer, wee hope it will prove satisfactory to you from your Reall Friends and Well-wishers. Signed, David Lloyd, Speaker. Endorsed, Recd. Jan. 15, 1704/5. 1 p.
605. viii. Address of the Assembly of Pennsylvania to Lt. Gov. Evans. Duplicate of No. 359. v.
605. ix. Address of the People called Quakers convened in Assembly at Philadelphia, to the Queen. We have laboured under some difficulty since the publication of thy Royall Order in Councill Jan. 21, 1702. In regard wee cannot administer oaths nor joyn with others in so doeing, severall of us who might be serviceable to our Country in Courts of Judicature are excluded, which refusall of ours proceeds not from disloyalty but tenderness of conscience. Now forasmuch as those who have been so earnest to introduce oaths here, have often declared they would be willing to take the Affirmation instead, upon all occasions wherein the life of a subject was not in question, and the said Affirmation being, as wee understand, as great security as an oath, since none but the most profligate of mankind, whom oaths cannot bind, will falsifye a solemn Attest, and Justice requiring the same security for preservation of Estate as Life, and the people called Quakers being still the most considerable for number and estates are consequently like to be the greater losers in case the administration of this Governmt. without oaths should prove detrimentall to the subjects in generall, Pray that the Affirmation may be allowed here to all persons and on all occasions instead of an Oath, which shall be thankfully acknowledged as an Act of Royal Clemency and indulgence to us who shall always study to approve ourselves thy sincere, loving and obedient subjects. Copy. 1¾ pp.
605. x. Assembly of Pennsylvania to the Queen. Loyal Address, and thanks for H.M. expressions of favour to our Proprietary, William Penn, and H.M. approbation of Lt. Gov. Evans. Endorsed, Recd. Jan. 15, 1704/5. Copy. ½ p.
605. xi. Mr. Rolfe to Col. Quary. Philada Sept. 2, 1704. Mr. Penn [jr.] hath been wth. Mdm. Quary from the Governor to desire her to send him the Queen's Order for quallifying of the Courts, but Mdm. Quary cannot find it; then he requested her to send to you to know were it was, for he hath occasion to make use of't now in the Mayor's Court, Mr. Penn being presented to them for abusing the Constable and watch. Signed, Jos. Rolfe. Endorsed as preceding. Addressed. 1 p.
605. xii. Proclamation by Lt. Gov. Evans. Duplicate of No. 359. i.
605. xiii. Lt. Gov. Evans to Col. Quary. Philada., Sept. 2, 1704. Enquires for H.M. Order as in No. 605. xi. Signed, John Evans. Same endorsement. Addressed. Holograph. 1 p.
605. xiv. Col. Quary to Lt. Gov. Evans. Burlington, Sept. 3, 1704. I was very much surpriz'd at your Honour's sending to me now for H.M. Order, as above. I have not only in obedience to the Council of Trade serv'd ye President and Councill wth. it, but took care to have it publish'd in all the severall Courts of the Province, and did likewise at your honour's first arivall deliver unto you one of the said Orders. I am concern'd at your Honour that you have now an occasion now to make use of it. If I mistake not there hath been the same occasion ever since your Honour's coming to the Governmt., as well as before, nor can any Magistrate pretend not to know the purport of that Order, since the Generall Assembly have thought fitt to Address H.M. on that head. However, if the first Order deliver'd you be mislaid, I will come down on purpose to supply you wth. another. Same endorsement. Copy. ¾ p. [C.O. 5, 1263. Nos. 6, 6.i.–xii., xiv., xv.; and (without enclosures) 5, 1291. pp. 102–124.]
Oct. 16.
St. John's
606. Petition of Inhabitants and Traders to Newfoundland to the Council of Trade and Plantations. Thomas Lloyd, late Commander in Chief of H.M. garrisons in St. John's, behaved himself with such arrogance and self-interest as had like to have destroyed ye English interest in this most noble Fishery. Insomuch that the soulders for want of due payment of their subsistence, provisions and other grevances that they in their Petition set forth, and that we know and are satisfied are trew, as the seting them out to ye Fishery at 16l. per man, as if they had bin his slaves, forcing them to take 6l. for their servis from May to Aug, and he to have ye other 10l. and their subsistance and victuals, and ye said 6l. be paid them in goods at extravagant rates, for this and other grevances he on Sept. 22 last was suspended, ye soulders having declared that his avirice was so insoportable that they could no longer live under it etc. His carrage to us is so arrogant that we had better be under an absolute power than under ye protection of such a Commander, and since his being suspended he hath contrived several papers in his own behalf, viz., how cearful he hath bin in sending spies last winter to Plasentia. The spies indeed ware sent, but he gathered ready money from us to pay them wth., and forced ym. to take goods from him at such extravagant rates as disincouraged them from further service. But he, by threatning some to run them threw, if did not sign, others by fair promises, and some yt. could not read would go privatly to and get them to put their marks, not knowing wt. it was to, by wch. means he got several of us to sign his papers and then called them aboard ye Commodore to make them own that it was their hand, ye which out of fear was done; and at his going off declared that if 500l. would purchas a Commission to come hither again he would give it and come to plague ye countrey. We therefore pray that our case may be inspected and that you'l represent it to ye Queen in Council, least if such a mercenary and cruell man should come hether again, this only garrison in ye cuntry may be lost, and by that means this most noble fishery. 61 signatures. Endorsed, Recd. 8th, Read Dec. 12th, 1704. 1½ pp. Enclosed,
606. i. Deposition of John Marshall that Capt. Lloyd threatened him with a drawn sword as above. Same endorsement. ½ p.
606. ii. Copy of a Petition to Capt. Lloyd from his Company of soldiers, complaining of Mr. Roope's barbarous treatment of them when employed to work on the boom etc. and praising Capt. Lloyd. Subscribed, Declaration of Noncommissioned Officers that this paper was drawn up by Capt. Lloyd himself, to clear himself, he having at the time let out 16 men to the fishery etc. 5 signatures. Same endorsement. 1 p. [C.O. 194, 3. Nos. 37, 37.i, ii.]
Oct. 17.
Whitehall.
607. W. Popple, jr., to Wm. Bridges, Melisha Holder, and Robert Chester. The Council of Trade and Plantations having several complaints before them against Governor Sir B. Granville, desire to speak with you on Thursday, and that you would give them an account whether there be any Act for settling the number to make a quorum in the Assembly of Barbados, and if there be no such Act, how and when the said Quorum came to be 15. [C.O. 29, 9.pp. 53, 54.]
Oct. 17.
Boston.
608. Wm. Popple, jr., to Robt. Heysham. The Council of Trade and Plantations desire to speak with you and the other gentlemen concerned in the complaints against Governor Sir B. Granville, etc. [C.O. 29, 9. pp. 54, 55.]
Oct. 17.
Boston.
609. Governor Dudley to W. Popple. Acknowledges letters. Refers to enclosure. I believe we have at this time near 40 vessels in Martineco, and if there were a constant cruise at Barbados and the Leeward Islands, it is scarce probable it would be so, one good cruiser has preserved this coast hitherto, and I hope for a supply which I have earnestly prayed for. Signed, J. Dudley. Endorsed, Recd. Dec. 23, 1704, Read Jan. 31, 1704/5. Holograph. 1 p.Enclosed,
609. i. Some merchants of Boston to Governor Dudley. See Minutes of Council of the Massachusets Bay, Oct. 9, 1704. Endorsed, as preceding. 2 pp. [C.O. 5, 863. Nos. 120, 120.i.; and (without enclosure) 5, 911. pp. 442, 443.]
Oct. 19.610. Proofs particularly desired from the Four Suspended Councillors of Barbados [see July 1, Sept. 21]. That they prove (1) the Militia is in a miserable confusion; (2) that the Governor called the Counsellors cowards; (3) that he has granted Commissions to Judges and Justices of the Peace without the consent and advice of the Council, and particularly in the case of Holder; (4) that he would have made an advantage to himself of 3,000l. in case the Bill for the security of the bays, etc. had past. Endorsed, Delivered to Mr. Heysham etc. Oct. 19, 1704. 1 p. [C.O. 28, 7. No. 53; and 29, 9. pp. 55, 56.]
Oct. 19.611. Proofs particularly desired from the Gentlemen of the Assembly concerned in the petition against Sir B. Granville [above]. To prove (1) that the Militia has been commanded by him upon duty contrary to the Law of the Island. (2) that the Governor is obliged upon commanding the Militia upon duty to have the consent of the Council, and how he has transgressed any Act of Assembly in reference to the Militia. (3) Who declared that there was no better way to give the Governor money than by such a Bill? (4) To prove that the commanding the inhabitants upon duty as guards is illegal and unusual. (5) How would the 2 companys of Grenadiers be destructive to the Militia, and be a means to evade the Queen's forbidding Governours to receive presents? (6) To prove how the greatest part of 9,000l. per annum is by the Bill to be paid into the hands of the Governor etc. (7) That by removal of officers, there is scarce a compleat regiment in the Island. (8) That the Governor ought not to appoint Militia officers without the consent of the Council, and how many of the officers appointed by him are unqualified and constituted contrary to Law. (9) To prove it legal or fitting for Assembly men disliking or apprehending the ill consequences of any Bill to absent themselves from the House. (10) That the Governor has received from the Assembly 600l. and 500l. sterl., and for what use, and that he desired the alteration of the Minutes of the Assembly for that it would otherwise appear a present from the Assembly. (11) That the Jews have presented him with 200l. (12) and have many priviledges allow'd them by him contrary to Law. (13) That he has received presents of considerable value from private persons, especially from the Scotch. (14) That many Scotch in places there are disaffected to the English Government. (15) That the Governor's House will cost the Island 600l. per annum and 5,000l. sterl. (16) To prove what is alledged concerning Robert Steward, and how far the Governour is concerned therein. (17) To prove exactions upon Masters of ships that sail without or with convoys, or the Governor's obliging them to petition for leave to sail with convoys, and whether such practice be an innovation. (18) How he has violated his Instructions in placing or displacing Judges and other officers, civil and military. (19) To prove what is alledg'd concerning Judge Holder. Endorsed as preceding. 4 pp. [C.O. 28, 7. No. 54; and 29, 9. pp. 56–60.]
Oct. 19.
Whitehall.
612. Council of Trade and Plantations to the Lord High Treasurer. Enclose account of incidental charges of the office, Midsummer to Michaelmas, amounting to 73l. 10s. 3d., with the particulars certified. [C.O. 389, 36. pp. 222–224.]
Oct. 20.613. Lt. Governor Bennett to [?]. Acknowledges Lord Nottingham's letter of Feb. 23 in pacquet of May 4 etc. Encloses following. I shall send a copy to the Governor of Jamaica. Signed, Ben. Bennett. Holograph. 1 p.Enclosed,
613. i. Deposition of S. Seares, Master of the sloop Benjamin and Mary. Arriving at Jamaica in July from these Islands with a quantity of onions, Mr. Fuller, boatswain of H.M.S. Hulk, bought them for 210l. Jamaica money. He paid him 50l. and to make good the remainder put on board a quantity of cordidge to be sold in Bermuda, part of which deponent now apprehends belonged to H.M. This part was seized and secured by H.E. order for H.M. use. Signed, Solomon Seares. Sept. 19, 1704. Copy. 1 p. [C.O. 37, 26. Nos. 5, 5.i.]
Oct. 20.
Bermuda.
614. Lt. Governor Bennett to the Council of Trade and Plantations. Acknowledges letters and begins as preceding. Concludes: By my brother I understand that the patentees for wrecks have not only sued me in the Court of Admiralty, but have also exhibited a Bill in Chancery relating to the French vessell that was lost on the sholes of these Islands some time since, so that I know not who to be accountable to, neither after this method will there be much left to account for, for what rigging and logwood was saved cost me very dear, it being recovered by boats and divers above 20 miles from the place of my residence, and about 10 miles from the nearest part of any land; and for the first week she came on the rocks I employed above 100 men, 20 boats and a sloop, to endeavour to get her off for H.M. service, which was very expensive to me, no person having less than half a piece of eight a day, besides paying for the boats and sloop, and the French prisoners' depositions demonstrated there was no kind of merchandize on board, but 82 tun of logwood, all which has not been taken up. I have no news to acquaint your Lordships with but that it is at least as dangerous to goe to Barbadoes or any the Leeward Islands, as from hence to England, the privateers are so thick, which makes me in pain when I send a packet that way. Signed, Ben. Bennett. Endorsed, Recd. Feb. 12, Read March 6, 1704/5. Holograph. 2 pp. [C.O. 37, 7. No. 3; and 38, 6. pp. 95–98.]
Oct. 20.
Whitehall.
615. W. Popple, jr., to Mr. Lowndes. Encloses letter from Dep. Governor Sir Nathaniel Johnson, July 13, 1703 [q.v.], with depositions. The Council of Trade and Plantations desire you to move my Lord Treasurer that their Lordships may have the opinion of the Commissioners of Customs thereupon. [C.O. 5, 1291. p. 59.]
Oct. 20.
Whitehall.
616. W. Popple, jr., to the Governor of the Royal African Company. Encloses copy of Sir N. Johnson's letter July 13, 1703. The Council of Trade and Plantations desire that you will return an answer of what you know or have to propose thereon. [C.O. 5, 1291. p. 60.]