America and West Indies
October 1717, 22-31

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Institute of Historical Research

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Cecil Headlam (editor)

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1930

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77-96

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'America and West Indies: October 1717, 22-31', Calendar of State Papers Colonial, America and West Indies, Volume 30: 1717-1718 (1930), pp. 77-96. URL: http://www.british-history.ac.uk/report.aspx?compid=74030 Date accessed: 31 October 2014.


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October 1717, 22-31

Oct. 22.
Hampton Court.
165. Mr. Secretary Addison to the Council of Trade and Plantations. Refers following for their report. Signed, J. Addison. Endorsed, Recd. 23rd Oct., Read 6th Nov., 1717. ½ p. Overleaf,
165. i. Petition of John Borland, New England, to the King. Petitioner was the first undertaker of curing sturgeon in America for the English market, and has been at considerable expence in sending over persons and necessarys to carry on the same. He hath moreover been att several thousand pounds expence for the support of the Garrison at Annapolis Royal which is still due to him. Prays for a patent for the sole curing and importing of sturgeon, which others (14th Oct.) are now petitioning for. 1 p. [C.O. 5, 866. Nos. 125, 125 i.; and 5, 915. pp. 55–57.]
Oct. 23.
Whitehall.
166. Mr. Secretary Addison to the Council of Trade and Plantations. The Lords Proprietors of the Bahama Islands in America being about to surrender to the Crown their right and power of Government in and over the said Bahama Islands; I am hereby to signify H.M. pleasure to your Lops., that when the deed of surrender shall be duly executed by the said Lords Proprietors, you should accept the same, and transmit the said deed to H.M. Attorney General in order to its being inrolled in Chancery. Signed, J. Addison. Endorsed, Recd. 28th Oct., Read 6th Nov., 1717. 1 p. [C.O. 5, 1265. No. 80; and 5, 1293. p. 114.]
Oct. 23.
Hampton Court.
167. H.M. Commission to Woodes Rogers to be Captain, and to Rt. Beauchamp to be First Lieutenant of the Independant Company of Foot appointed to do duty in the Bahama Islands. Copy. Countersigned, J. Addison. [C.O. 324, 33. p. 111.]
Oct. 23.
Whitehall.
168. Council of Trade and Plantations to the King. Recommend for H.M. confirmation 3 Acts of Jamaica, (i.) for regulating fowling and fishing, (ii.) for the better securing the estates and interests of orphans and creditors and to oblige executors to give security etc., 1711. (iii.) for preserving the Public Records, 1712. The Act, 1712, to incourage white men to come and settle seems in generall to be very beneficial and to be liable to one objection only in that part of it, where to prevent the stealing of goods by persons that carry goods for hire it is enacted, that any such person being suspected of having stolen any such goods shall be obliged to answer upon oath, before a magistrate, what goods and how much were so purloin'd, stolen or imbezelled. And if he refuse to take such an oath, he is to forfeit £20; If he be convicted by his own confession on oath. he is to forfeit to the person aggrieved double the value of the goods so purloined etc. And tho' this is in some measure qualify'd by a subsequent clause, wch. provides that such confession on oath shall not be given in evidence to charge any person with felony or in any action at law etc. (v. July 22. 1714) yet even this seems to be too hard, as being contrary to natural Justice, to oblige a man to answer upon oath to accuse himself of a crime, which we do not know to be required by any law in this Kingdom. However as we have been inform'd, that some such rigorous provision by Law is in that Island necessary for the securing goods and merchandizes as aforesaid, and that we have not received or heard of any complaints against this Act since it pass'd, and that it is in other respects usefull and reasonable, we must beg leave to submit to your Majesty's pleasure, whether the same may not be confirm'd. Concerning the Act declaring what persons shall be qualify'd to set in Assemblys, 1711, We must beg leave to observe, that as the Assembly did at first meet and now subsist only by your Majesty's Commission to the Governor and the powers therein granted, the qualifications of the Assembly men and of their electors ought properly to be regulated by Your Majesty, not by the Assembly, besides the qualification of £200 pr. annum required by this Act appears to us to be too large a summ; We cannot therefore think it adviseable for your Majesty to confirm this Act, but rather to declare your disallowance of it. The Act to prevent hawking and disposing of goods clandestinely, 1711, we conceive shou'd be rejected, because it prohibits the selling in open markets any sorts of goods, wares and merchandizes whatsoever, other than Plantation provisions, fresh fish and live-stock, whereby markets in wch. it is lawful to sell other sorts of foods and wares. wch. may lawfully be and usually are sold in markets are in a manner destroy'd, and it is not within the mischief design'd to be remedy'd by this Act, wch. was hawking and selling from place to place; and it seems further unreasonable that all persons shou'd be prohibited as they are by this Act from buying up to sell again any manner of Plantation provisions or live stock whatsoever within ten miles of any town of that Island, there is likewise another objection against this Act, vizt., that the inhabitants of one particular parish are restrain'd from supplying any other place or parish with any small stock such as hoggs, ducks and dunghill fowl, but what the seller raises himself, it being unreasonable to distinguish the inhabitants of that parish from those of other parts of the Island. As to the Act to disinable any Member of the Council or of the Assembly from acting as Commissioners for receiving any publick mony rais'd or to be rais'd by the Govr. Council and Assembly, and to disinable any such Commissioner to be a Member of the Council or of the present or any future Assembly of this Island; We think it not only lays a great hardship on such persons as your Majesty may think proper to appoint of your Council there, but likewise lays such a restriction on your Majesty's Prerogative as may be attended with worse consequences in this Island, than perhaps in any other of your Majesty's Plantations, wherefore we are humbly of opinion this Act shou'd be rejected. We have no objection why your Majesty may not confirm the Acts of 1716 for the more easy serving of constables etc., and for the effectual discovery of all persons that are disaffected to H.M. and His Govt. and to prevent all such persons holding any office or place of trust within this Island. The following Acts pass'd in Nov. 1716 by the present Govr. Mr. Heywood vizt., to oblige the several inhabitants to provide themselves with a sufficient number of white people etc., and to encourage the bringing over and settling of white people etc. ought for many reasons to be rejected. (i.) Because they are join'd together in the nature of a tack; so that the one wou'd be imperfect without the other, and both of them (tho' not equally) liable to objections, do take away your Majesty's power of granting a non vult ulterius prosequi in cases of forfeiture against these Acts. (ii.) The former provides a subsistence for the two independent Companys, only for one year, wch. term is now expired, tho' the Act itself was to continue in force to Dec. 1st, 1719, and this provision had a clause annexed to it, that no officer or soldier shoud injoy any civil office on the penalty of £500, wch. clause is foreign to the main design of the Acts, and consequently contrary to an article in your Majesty's Instructions to your Governor of that Island, wch. expressly forbids him to pass any bills containing clauses of a different nature from the bill itself, without having first obtain'd your Majesty's leave to do it; besides a former Act of Jamaica was within these few years rejected by the Crown for having the very same clause in it. (iii.) In this Act all the public offices are tax'd and the mony arising thereby as well as by the other parts of this Act, was to be paid into the hands of Commissioners appointed by the Assembly to receive the same, wch. is an incroachment upon your Majesty's Prerogative, a prejudice to your Majesty's Receiver Gen., and is contrary to an Article in the Instructions to your Govr. (iv.) The latter of these two Acts appoints Commissioners for certain uses and directs that in case of the death of any of the sd. Commissioners, the powers granted them shall devolve upon their heirs several, wch. we cannot but think very extraordinary. (v.) These two Acts do in several respects seem to clash with an Act for incouraging the importation of white people pass'd in 1703, wch. has been confirm'd as well as with the Act of 1712, for the same purpose, both wch. Acts were to be perpetual, and yet these Acts of 1703 and 1712 are not repealed, nor indeed is there any mention made of them in either of the abovemention'd Acts pass'd by Mr. Heywood. We think it our duty upon this occasion to observe to your Majesty that during the Govt. of Lord Hamilton, his Lordship communicated to the Assembly a letter from this Board and some of the Articles of his Instructions from your Majesty recommending the passing some Act or Acts for peopling the Island and prescribing some methods for that purpose, whereby the main end of these two Acts might have been attain'd, and the objections they are liable to have been prevented. But the Assembly (as we are inform'd) had so little regard to the same that they declin'd reading either ye letter or the Articles of Instructions, sent them by my Lord, and prepar'd two bills for the aforesaid purpose, wch. bore the same title, with these two Acts, and were liable to much the same objections, which the Council offering to amend, the Assembly dropt those bills. We cannot therefore but be surpriz'd to find them offer'd again with the same objections, and that Mr. Heywood. who is personally interested therein, shou'd have thought fit to pass them, and so much the rather, because he was particularly restrain'd by your Majesty's Instructions to him from passing of any Acts, but what were immediately necessary for the peace and wellfare of the said Island without your Majesty's particular order for that purpose. Upon the foregoing considerations we cannot but be humbly of opinion, that your Majesty may declare your disallowance of these two Acts, as they are liable to the aforesaid objections, and because the Act of 1703 and that of 1712, if your Majesty shou'd think fit to confirm it, may in some degree answer the end of those two Acts, at least, till others can be propos'd, not liable to the like objections. The Act repealing an Act for the better securing the estates and interests of orphans and creditors etc., being intended to repeal another law, wch. we have offer'd for your Majesty's approbation, and not appearing to be more effectual for the public benefit and advantage of that Island; Besides this Act taking away your Majesty's power of granting a non vult ulterius prosequi, your Majesty may signify your disallowance of the same, whereby the former Act will be in force again. The Act for granting a further relief, in relation to proving of wills and testaments, and granting letters of administration of intestate estates, dos interfere with your Majesty's Instructions, and the powers therein to your Governor, whereby the probate of wills is reserved solely to him; Whereas the power of granting such probates is by this Act made subject to the Supream Court of Judicature in that Island; We must therefore humbly submit it to your Majesty's pleasure, whether this Act shou'd be confirm'd. In relation to the Act to secure the freedom of elections and directing the proceedings in the choice of members to serve in Assemblys etc.; we must beg leave to observe that a Bill to this effect having been prepar'd by the Assembly, during the Lord A. Hamilton's Government, the Council offer'd an amendment to it to prevent clandestine conveyances, and ye creating sham Freeholders in order to multiply votes at elections, a practice wch. we are inform'd is pretty much made use of there; and the Assembly refusing to agree to such an amendment, the bill was dropt. The present Act takes away your Majesty's power of granting a non vult ulterius prosequi in cases of penalties incurr'd by the Act, and imposes on all persons without exception, who may offend against some conditions of it, a certain fine to wch. your Majesty's Governor himself is consequently to be subject. For this reason and because the Assembly have not been willing to consent to the remedying any abuses suppos'd to be committed in elections by persons of their own society, we cannot think it adviseable to propose to your Majesty the confirming this Act. As to the Act to prevent any one man to hold any two or more offices of profit in this Island, we humbly represent that in 1711, another Act with the same title was pass'd in Jamaica and repeal'd by her late Majesty for reasons offer'd by this Board, altho' that Act was only levell'd agt. the Provost Marshall, who then held the office of Secretary by deputation; But this Act is still more general and consequently more liable to objections, since it extends to all persons that your Majesty may think fit to appoint to any two places under the penalty of £500 for every three months they execute the same either as Deputy or Principal; Besides it is liable to the foremention'd objection of restraining your Majesty's Prerogative in relation to a non vult ulterius prosequi, for wch. reason we humbly offer that your Majesty be pleased to signify your disapprobation of the sd. Act. [C.O. 138, 15. pp. 488–504.]
Oct. 24.
Whitehall.
169. Council of Trade and Plantations to Mr. Secretary Addison. Reply to Sept. 26th. We have considered Lord A. Hamilton's Memorial, and his proofs of the allegations therein contain'd. His Lordship's method of proceeding herein was to apply his evidence to the sevl. articles in order as they stand number'd in his Memorial, and as his proofs were pretty voluminous, we have rather chosen to transmit you a copy of our Minutes together with the several papers and extracts therein referr'd to etc., than to incorporate them in the body of this letter, that H.M. may be the better able to judge whether they do not sufficiently prove the sevl. facts asserted in his Lordships meml. You will observe that most of these proofs consist of written evidence, as Instructions and letters from H.M., letters from the Secretary of State and this Board, and Minutes of the Council in Jamaica, and are consequently of such a nature as cou'd not admit of contradiction if the persons complain'd of by his Lordship had been present to make their own defence, wch. in this case was impracticable because there are none of them in the Kingdom; but indeed considering the nature and circumstances of my Lord A. Hamilton's case, the presumptions as well as the proofs are very strong in his favour, since the prosecution agst. him was entirely dropt upon his Lordship's being dismiss'd from H.M. Service, thô he did often sollicit to be heard before H.M. in Council. The Orders given by H.M. for securing Lord Hamilton's person, seem to have been chiefly grounded upon the affidavits of Walter Adlington and Saml. Page present Deputy Secretary to Jamaica, whose character at that time was not so well known as it has been since; and you will perceive by the papers annex'd, how little regard the sd. Page has had to truth and how far his zeal in that cause transported him beyond the rules of common Justice. You will likewise be pleas'd to take notice, how ill an use Mr. Heywood and the Council have made of H.M. Instructions for securing the Lord Archd's. person, wherein in our opinion they were no wise justifiable by those Instrns., because they were not directed by H.M. Orders to send the Ld. Archd. prisoner to England, unless upon examination it shou'd appear to them, that he was concern'd in the piracy complain'd of by the Spaniards, the contrary whereof seems to us to be true. It cannot but be a great misfortune to any Gentleman to be dismiss'd the service of so excellent a Prince as H.M.; but to be remov'd in a manner so reflecting upon his character must add to the mortification; and we are sorry to find the publick has been so little advantag'd by the change. We shall not take upon us to determine how far it might be proper for H.M. to comply with the prayer of my Lord Archibald's Memorial, thô if it shou'd appear to H.M. that Mr. Heywood and the other persons complain'd of by his Lordship have been guilty of the facts by him laid to their charge, we cannot but think it wou'd be for H.M. service in that Island and contribute very much to the better supporting H.M. Government there for the future, that H.M. shou'd shew such marks of his displeasure against them as to His Royal wisdom may seem most proper. But as to Mr. Page, we think it highly necessary for H.M. service, that a person of his character shou'd be remov'd from the place of under Secretary to the Island of Jamaica and from all offices of trust whatsoever under H.M. Since it will be impossible for any Govr. to discharge his duty in so effectual a manner as might otherwise be expected from him whilst he shall find himself in the power of a Secry. in whom he cannot repose the least confidence. [C.O. 138, 15. pp. 504–508.]
Oct. 24.170. Analysis of preceding, without date. 2 pp. Enclosed,
170. i. Copy of Hamilton's Memorial. (v. Sept. 26, 1717.)
170. ii. Copy of Minutes of the Board of Trade upon hearing the Lord Archd. Hamilton on each Article of his Memorial, (v. Journal of Council of Trade). [C.O. 137, 46. Nos. 28, 28 i., ii.]
Oct. 24.
Whitehall.
171. Mr. Popple to Governor Hamilton. Acknowledges letters of 22nd June and 15th July. Continues:—The Council of Trade and Plantations have commanded me to acquaint you that they have laid some of the Acts of your Government before H.M. for confirmation, as the Act for establishing a Court of Chancery etc., and others to be repealed, as the Act for the Court of King's Bench, of all which (when H.M. has declared his pleasure) their Lordps. themselves will give you a full account and of the objections that are against any of them. In the mean time I am to observe to you by their direction that most of your Acts have too much severity in them, which often prevents the cure of the evil intended to be remedyed by such laws; and therefore their Lordps. are of opinion that you should endeavour to avoid this objection as much as possible in all future Acts to be passed by you. Upon this occasion I am further to desire that when you transmit over any Acts of your Government you be very particular in giving their Lordps. an account of the reasons there may be for or against those Acts. Their Lordps. have considered what you write in relation to small armes, and have made two reports upon that matter, but I do not yet hear that anything is done upon them. However the Agents are solliciting the dispatch of that affair. I am now to remind you of what the Board writ you, 4th Oct., about transmitting accounts of the Revenue and of the annual expences of the Government. You tell their Lordps. indeed, that, that will be found by the Acts passed in each respective Island but it would be much easier to them, and more easily done by you who are upon the spot, and who can best know what is raised by your Acts to transmit to their Lordps. such an account as they desire, and as they think it necessary to insist on having from you. They have also considered what you writ in relation to the poor inhabitants of Anguilla, and have represented to the Lords of the Treasury (who have now under consideration the disposal of the french lands of St. Christophers) that so many of the said inhabitants as can be conveniently disposed of in St. Christophers be setled there upon small plantations to be given them gratis after such poor inhabitants as are already on St. Christophers have been provided for. In the mean time their Lordps. are of opinion that you will do well to encourage the people of Auguilla to remain where they are, till the method and manner of the disposal of the late French lands be determined by H.M. And that you endeavour as much as possible to prevent any of H.M. subjects from removing to foreign settlemts. The collection of laws that you have sent the Board is not what they expected, for it contains only the Laws of Nevis, and the general Laws of the four Islands what their Lordps. therefore desire is that you would send them one Book of the general Laws by themselves and one for each of the other 4 Islands, that is of such Laws as are in force. In the mean time while they are transcribing what their Lordps. expect from you is a list of all the Laws in force under the same distinctions as is abovementioned in the 5 Books, that their Lordps. may compare those lists, with the Laws they already have. I am commanded to observe one thing more to you, and that is upon an Act passed by you at St. Christophers 27th Nov., 1716, for raising a tax on trade to defray the publick charges of this Island; which enacts that a tax of 10s. pr. poll be laid on all negroes, and other slaves, 10s. pr. head on all horses and mules, and 5 pr. cent. currant money on all other wares and merchandize of what kind or denomination soever, (liquors only excepted) imported to this Island and not being the right and property of any person or persons residing here (all such and they only being here exempted from the payment of the said tax) this their Lordps. think very unreasonable and would have laid the Act before H.M. to be repealed, had it not been expired, and therefore for the future expect that you will be very carefull in not passing any Act that may lay a burthen upon the trade or shipping of this Kingdom according to H.M. additional Instruction lately sent you. [C.O. 153, 13. pp. 144–148.]
Oct. 24.
Hampton Court.
172. Order of King in Council. Confirming Act of New York to enable Wm. Anderson etc. v. 17th Oct. Signed, Edward Southwell. Endorsed, Recd. 30th, Read 31st Jan., 1717/18. 1¼ pp. [C.O. 5, 1051. No. 48; and 5, 1123. pp. 510, 511; and (duplicate, endorsed, Recd. 24th, Read 25th Feb. 1717/18) 5, 1051. No. 56.]
Oct. 24.
London.
173. Micajah and Richard Perry to Mr. Popple. Enclose following. Signed, Micajah and Richard Perry. Endorsed, Recd. 24th Oct., 1717. Addressed. ¼ p. Enclosed,
173. i. Receipt for a box to be delivered to Lt. Governor Spotswood. Signed, Constantine Cant. Capt. of the Burwell. 1 p. [C.O. 5, 1318. Nos. 26, 26 i.]
Oct. 25.174. William Cocke, Secretary of Virginia, to the Council of Trade and Plantations. The Laws of Virginia having been lately transmitted over to me in order to be printed, 'tis found upon perusal that certain Acts of Assembly, and clauses of others are repugnant to the laws of Great Britain. As for instance, Anno 1663. An Act prohibiting the unlawfull assembly of Quakers etc., which if put in execution would prove injurious to the Colony by banishing out thereof great numbers of industrious inhabitants. The 2nd Act of the same Sessions, concerning foreign debts, does directly establish injustice to English creditors. An Act pass'd in 1676 limiting the times of receipt and payment of publick tobacco was repealed by Proclamation but there being among other clauses therein contained, one declaring who shall not bear office in the Colony of Virginia, the lawyers who revised the Body of Laws, are of opinion that this clause is still in force notwithstanding such repeal. Now seeing H.M. has been pleas'd to repeal an Act made in 1705 entitled an Act, who shall not bear office in Virginia, 'tis thought reasonable with submission to your Lordshipps that this clause particularly be repealed, etc. Signed, Wm. Cocke. Endorsed, Recd., Read Oct. 25, 1717. 1½ pp. [C.O. 5, 1318. No. 27.]
Oct. 25.
Whitehall.
175. Council of Trade and Plantations to Mr. Secretary Addison. We have consider'd Sir N. Lawes' Memorial, relating to a dormant Commission for a Lt. Governor of Jamaica (v. Oct. 18), and having search'd our Books find several precedents of the like Commissions. We have also discours'd with Sr. Nich. Lawes on this subject, who represented to us the great inconveniences, that have formerly happen'd by the Government's devolving on the eldest Councillor as is now practis'd; Wherefore we intirely agree that it may be for H.M. service, yt. such a Commission as is desir'd by Sr. N. Lawes be granted to a proper person; and we inclose to you the copy of the last we find in our Books given to Col. Handasyde in June 1702, which may serve for your information in case H.M. shou'd be pleas'd to grant the same. Autograph signatures. 1 p. [C.O. 28, 39. No. 4; and 138, 15. pp. 509, 510.]
Oct. 28.176. Copy of the Surrender from the Lords Proprietors of the Bahama Islands to the King of their right of civil and military government. Rehearses Charter of Charles II. etc. Concludes with following clauses of surrender and reservation;—And whereas the estate, intrest, right and title etc. are by mean conveyances and assurances in the Law or otherwise by descent legally come unto and vested in the Most Noble Henry Duke of Beaufort an infant under the age of 21 years, the Right Honourable William Lord Craven likewise an infant under the age of 21 years, the Right Honourable John Lord Carterett, the Rt. Honoble. William Lord Berkeley, the Honourable Maurice Ashley Esq. and Sr. John Colleton, Barronett, the present Lords Proprietors of the said Islands and premisses who are willing and desirous to surrender all their rights to the civil and military powers of Government of and in the said Islands and premisses to his Most Excellent Majesty to the intent that his Majesty may be pleased to constitute a Governor or Governors of the said Islands and places aforesaid with such powers, priviledges and authorityes for the Government thereof and making of such Laws there with the consent of the Councill and Assembly of the said Islands, and his Majesty's subsequent approbation thereof as His Majesty in his great wisdome shall think fitt and convenient Wee therefore James Berty and Doddington Grevill Esquires Guardians and Trustees for the Duke of Beaufort Sr. Fullivar Skipwith Baronet Guardian and Trustee for the said William Lord Craven John Lord Carterett William Lord Berkely Maurice Ashley Esqr. and Sr. John Colleton Barronet the said present proprietors of the sd. Islands for the consideracons and to the intent aforesaid have surrendred and yeilded up and by these presents for us and our heirs do surrender and yeild up unto our Soveraigne Lord George by the grace of God King of Great Brittain France and Ireland etc. his heirs and successors All those the said powers and authorityes to correct punish pardon govern and rule all or any of his Majestyes subjects or others who now are or inhabit in or shall hereafter adventure into or inhabitt within the said Islands or either of them and also to nominate make constitute ordain and confirm any laws orders ordinances direccons and instruccons for those purposes or any of them and to constitute nominate and appoint revoke discharge change or alter any Governor or Governors Officers or Ministers which are or shall be appointed made or used within the said Islands or either of them and to make ordain and establish any orders laws direccons instructions formes or ceremonyes of Government and Magistracy for or concerning the Government of the said Islands or either of them or on the sea in goeing or comeing to or from thence or to put in execution or abrogate revoke or change such as are already made for or concerning such Government or any of them and also all those the said powers and authorityes to use and exercise Martiall Law in the places aforesaid or either of them And of encountring repelling and resisting by force of arms any person or persons attempting to inhabitt there without the licence of us the said Lords Proprietors our heirs and assignes and all other the powers authorityes and priviledges of or concerning the civill or military Government of the said Islands or any of them or of the inhabitants thereof which were granted or menconed or intended to be granted in and by the said recited Letters Patent and every of them saveing and excepting out of this present surrender to us our heirs and assignes all the lands and soyle of the said Islands and places aforesaid and the rents and quitt-rents issues and proffitts thereof or thereout ariseing or issueing or to be issueing or goeing thereout and also saveing and excepting the liberty and freedome of religion in such manner as by the said Letters Patents is granted And alsoe saveing and excepting to us the said Lords Proprietors our heirs and assignes all and singular the ports harbours bays and rivers to the abovemenconed Island and Isletts belonging and appertaining with the fishing of all sorts of fish whales sturgeon and all other royall fishes in the seas bays islands and rivers within the abovemenconed premisses and the royall fish and others therein taken together with the royaltye of the sea upon the coast within the limitts aforesaid And moreover all veines, mines and quarries as well discovered as not discovered of gold silver gems precious stones and all other whatsoever be it of stones mettalls or any other thing whatsoever found or to be found within the Islands and limitts aforesaid and all other royaltyes libertyes franchises and priviledges in and by the said Letters Patents granted not interfering with or relating to the civill and military powers of Government of and in the said Islands and so as the said Islands shall be put under and remaine a seperate and distinct Government and shall not be made any member or part of any Colony in America or elsewhere nor be depending on or subject to their Government in anything but be subject imediately to the Crowne of Great Brittaine as depending thereof for ever etc. Signed and sealed by James Bertye, Doddington Grevill, Sr. Fullivar Skipwith, William Lord Berkeley, Maurice Ashley and Sr. John Colleton, and Maurice Ashley for John Lord Carterett. Endorsed, Recd. (from Capt. Rogers) Read 6th Nov., 1717. Parchment. 2 large pp. [C.O. 5, 1265. No. 82; and 5, 1293. pp. 115–126.]
Oct. 28.177. Mr. Attorney and Mr. Solicitor General to Mr. Popple. Enclose following in reply to 13th Feb., and to H.M. reference of the Earl of Sutherland's petition to them. Signed, Edw. Northey, Wm. Thomson. Endorsed, Recd. 29th Oct., Read 6th Nov, 1717. ¾ p. Enclosed,
177. i. Mr. Attorney and Solicitor General to the King. 21st Oct., 1717. We have jointly considered of the petition of the Earl of Sutherland for a Charter of the three Lower Counties upon Delaware Bay etc. We have heard the persons concerned for William Penn Esq., and severall mortgagees and purchasers under him and also Lord Baltimore who severally claim title to the said Lower Counties being called New Castle Kent and Sussex And we do most humbly certifie your Majesty that the said William Penn is intituled under the grants of K. Charles II to the Plantation of Pensilvania But that these Counties are not included in such grant and his title to Pensilvania is not now contested. And as to your Majesty's title which the Earl of Sutherland has undertaken to make out to the said three Lower Counties he has insisted that the same were gained by conquest by the subjects of your Majesty's predecessors or granted to your Majesty's predecessors by the possessors thereof and that thereby your Majesty's predecessors became intituled to the same for that a subject of the Crown could not make foreign acquisitions by conquest but for the benefit of the Crown And that the length of possession will be no barr to the Crown That for severall years last past Mr. Penn hath had the possession of the said Lower Counties under a pretence of a grant thereof to him made in 1682 by the late King James when Duke of York who then had the possession of New York and the said three Lower Counties; but had no right to the said Lower Counties and therefore could not transferr any right in the same to the said Mr. Penn which appears For that the said late King afterwards when Duke of York in 1683 obtained a warrant from the then King Charles II to pass a Patent whereby the said three Lower Counties should have been granted to the said then Duke of York And a copy of a Bill to pass into a grant in April 1683 to the said James Duke of York of the said three Lower Counties has been produced by the said Earl of Sutherland And it is alledged the same was never past into a grant And that if the same had past into a grant it would not have made Mr. Penn's title to the said Three Lower Counties to be good, the title of the said Mr. Penn under the Duke of York being precedent to the title of the said Duke of York but that the same did remain in the said Duke of York and is consequently now in your Majesty And that your Majesty's title further appeares For that after in May 1683 when the then Lord Baltimore by petition opposed the passing the said Bill under the Great Seal Mr. Penn then appeared against the said Lord Baltimore as Agent for the Crown and not on behalf of himself And Mr. Penn under his hand has declared that your Majesty's Royal approbation and allowance of the Deputy Governor of Pensilvania and the three Lower Counties on Delaware River named by him shall not be construed to diminish or sett aside the right claimed by the Crown to the said three Lower Counties Besides the said Earl of Sutherland insists that in the grant of the said Duke of York in 1682 to Mr. Penn of the said Three Lower Counties there is a reservation of an account to be made of one moiety of the profits of the lands thereby granted touching which no account has yet been rendred by Mr. Penn and that therefore if the said grant in 1682 was effectual the said Mr. Penn is yet accountable to your Maty. for the moiety of all the profits of the land so granted from the year 1682 according to the said reservation, And that that if the said Earl of Sutherland cannot by your Maty's favour be intituled to the said Three Lower Counties he humbly prays he may have the benefit of the said account. In answer to which on the behalf of Mr. Penn's mortgagees and other purchasers under him it hath been alledged that the late King James II when Duke of York was seized in fee of the said Three Lower Counties and as one argument to prove such seizin they have produced Letters Patents dated the 29th of June 26° Car. 2d1 whereby his said late Maty. King Charles II granted to the said James late Duke of York his heires and assigns all that part of the main land of New England beginning at a certain place called or known by the name of St. Croix adjoyning to New Scotland in America and from thence extending along the sea coast unto a certain place called Pemaquinne or Pemaquid and so up the river thereof to the further head of the same as it tendeth northward and extending from the River of Kinebequin and so upwards by the shortest course to the River Canada northwards And all that Island or Islands commonly called by the several name or names of Matewaicks or Long Island scituate and being towards the west of Cape Codd and the Narro Higansetts abutting upon the mainland between the two rivers there called or known by the several names of Connecticut and Hudson River together also with the said river called Hudson's River And all the lands from the West side of Connecticut River to the East side of Delaware Bay And also all those severall Islands called or known by the name of Martin Viniard and Nantacks otherwise Nantakett Together with all the lands islands soyles rivers harbours mines mineralls quarries woods marshes waters lakes fishings hawkings hunting and fowling and all other royalties profits commodities and hereditaments to the said several islands lands and premisses belonging and appertaining with their and every of their appurtenances And all his said late Majty's. estate right title and interest benefit advantage claim and demand of in or to the said lands and premisses or any part or parcell thereof And the revercon and revercons remainder and remainders together with the yearly and other rents revenues and profits of the premisses and of every part and parcell thereof att and under the yearly rent of 40 beaver skins when they shall be lawfully demanded or within 90 days after such demand made with powers of Government Within the descriptions of which grant it hath been agreed by both parties that the said three Lower Counties are not contained But on the behalf of Mr. Penn etc. it hath been insisted that by the general words Together with all the lands Islands soyles etc. the said three lower Counties did pass as belonging to the premisses expressly granted by the said Letters Patents for that the three Lower Counties were enjoyed by the said late Duke of York together with New York which was granted by the said Letters Patents unto the said late Duke of York untill he granted the same to the said William Penn in 1682 by the grants hereinafter mentioned Which seems difficult to us to be maintained since the abuttall in the said Letters Patents exclude the three Lower Counties But they presume the said late Duke of York might have some other grants thereof which Mr. Penn might give an account of but cannot being under a Lunacy And we do further humbly certifie your Majesty that by indenture dated 24th Aug. 1682 made between the said late Duke of York of the one part and the said William Penn of the other part the said late Duke of York for the consideracons therein menconed did bargain sell enfeoffe and confirm to the said William Penn and his heirs all that the town of Newcastle otherwise called Delaware And all that tract of land lying within the compass or circle of twelve miles about the same scituate lyeing and being upon the River Delaware And all islands in the said River Delaware and the said River and soil thereof lyeing north of the southermost part of the said circle of twelve miles about the said town together with all rents services royalties franchises duties jurisdictions liberties and priviledges thereunto belonging And all the estate right title interest powers property claim and demand whatsoever of the said late Duke of and in or to the same or to any part or parcell thereof At and under the yearly rent of five shillings with a covenant for farther assurance. And the said late Duke did thereby constitute and appoint John Moll and Ephraim Harman or either of them his Attorney with full power for him and in his name and stead to deliver seizin of the premisses granted by the said last recited indenture to the said Wm. Penn and his heirs. And the said late Duke of York by another indenture bearing date the said 24th of August 1682, and made between the said late Duke of York of the one part, and the sd. Wm. Penn of the other part for the consideration therein mentioned did bargain, sell, infeoffe and confirm unto the said Wm. Penn and his heirs, all that tract of land upon Delaware River and Bay beginning 12 miles south from ye Town of Newcastle otherwise called Delaware and extending south to the Whore Kills otherwise called Capin Lopen [Cape Henlopen] together with free and undisturbed use and passage unto and out of all harbours, bays, waters, rivers, isles and inlets belonging to or leading to the same together with the soil, fields, woods, underwoods, mountains, hills, fenns, isles, lakes, rivers, rivulets, bays, and inlets situate in or belonging unto the limits and bounds aforesaid together with all sorts of minerals. And all ye estate, intrest, royalties, franchises, powers, privileges, and immunities whatsoever of the sd. Duke of York therein or in or unto any part or parcel thereof at and under the yearly rent of one rose. In which said last mentioned indenture is contained a covenant on the part of the said Wm. Penn his heirs or assigns within the space of one year next ensuing the date of the said indenture to erect or cause to be erected and set up one or more publick office or offices of registry in or upon the said last bargained premisses wherein truly and faithfully to account set down and register all and all manner of rents and other profits which he or they or any of them shall by any ways or means make, raise get or procure of in or out of the said last bargained premisses or any part or parcel thereof. And also at the Feast of St. Michael the Archangel yearly and every year shall well and truly yeild pay and deliver unto the said late Duke of York His heirs and assigns one full moiety of all and all manner of rents, issues and profits as well extraordinary as ordinary as shall be made or raised upon or by reason of the premisses or any part thereof with power to the said late Duke of York his heirs and assigns in case the same shall be in arrear 20 days to enter in and upon the same premisses or any part thereof and there to distrain and the distresses to detain until payment of the said moiety and arrears thereof together with all costs and damages for the same. And by the same indenture the said John Moll and Ephraim Harman or either of them were appointed in like manner Attorney or Attorneys to deliver seizin of the last bargained premisses to the said Wm. Penn and his heirs. Both which said indentures were entred in the Office of Records for ye Province of New York on the 21st of Novr. 1682, within wch. said grants the said three lower Counties are contain'd but the covenant to account extends only to what is included in the last recited grant. That by an order by the Commander in Chief and Council of New York dated at New York 21 Novr. 1682, reciting the said two recited indentures, and reciting, that the said Commander and Council, were fully satisfy'd of the said Wm. Penn's right to the possession and enjoyment of the premisses had therefore thought fit and necessary to signify and declare the same to the several Justices of ye Peace Magistrates and other Officers at Newcastle, St. Jones Deale als. Whore Kill, at Delaware, or within any of the bounds and limits abovemention'd to prevent any doubt or trouble that might arise; and after having thanked the said Magistrates for their good services in their several offices and stations during the time they remained under his sd. late Royal Highnesses Government, they declare they expected no further account, than that they should readily submit and yeild all due obedience and conformity to the powers granted to the sd. Wm. Penn in and by the said indentures. Which said order was the 25th of October 1701 entred in the Rolls Office at Philadelphia. It appears by the affidavit of Thomas Grey, who swears he lived in Pensylvania from the year 1699 to the year 1707, and that he made out and saw many patents or grants and warrants whereby considerable quantities of lands lying in the said three lower Counties which as he deposes are esteemed to belong to Pensylvania were granted to divers persons and their heirs some of which grants or warrants were signed by the sd. Wm. Penn, and the rest by his Agents or Commissioners, and all sealed with the seal of the said Province; and that he hath seen great improvemts. in building and planting by persons claiming under such grants. That many of the said inhabitants who were reputed to have settled upon lands in the said lower Counties by virtue of grants or patents, and warrants either from the Swedes or Dutch when the said Counties were in their hands respectively or from the Governor of New York under the said late Duke of York when the same was in his hands did upon making up their accounts of quit-rents due from them to the said William Penn for their lands accept new patents from the said Wm. Penn or his Agents, and have since much increased their improvements thereof both in building and planting. That he hath seen patents or instruments for conveying lands in the said lower Counties to divers of ye ancient inhabitants thereof, as well from ye Swedes or Dutch as the Governors of New York under the sd. late Duke, as also Commissions under the hands of some one of the said Governors of New York constituting Magistrates and officers in the said lower Counties. That he believes that the Patents of lands in the said lower Counties granted by the said Governors of New York were registred at New York, and that if search were made in the Secry's Office there, the same would appear so to be. That he believes much the greatest part of the inhabitants of the said lower Counties, who have land there hold the same by title under Mr. Penn, and that several who hold land there by other title have delivered the same up and have accepted new grants from Mr. Penn. And it also appears by the affirmation of Robt. Hiscox a Quaker, that the Naval Store Company in Bristol have by their Agents made several purchases of the said Wm. Penn of 3120 acres of land in the County of Kent, and that the said Company hath expended for purchasing lands, building thereon and other improvements, and in carrying on their manufacture for raising hemp upwards of 2000li. and are by their articles obliged to lay out 5000li., of which the said 2000li. is part, and that he expects in a short time the greater part of the remaining 3000li. will be laid out in the managemt. and carrying on the said manufacture, and that no benefit hath yet accrued to the said Company for ye mony so expended, and that he believes other purchases are already made for the use of the said Company. And as to the said Earl of Sutherland's objection, that the Duke of York in 1682, had no title to the lower Counties, and therefore those grants then made to Mr. Penn were void, which appears by a copy of a bill dated 13 April 1683 in order to be passed into a grant of the said three lower Counties to the said late Duke of York, which is after the grant by the Duke of York to the sd. Wm. Penn but never passed into a grant, and which bill recites a surrender of certain Letters Patents bearing date the 22nd of Mar. then last past, (which grant cannot be found) of the Town of Newcastle otherwise Delaware and Fort thereunto belonging, lying between Maryland and New Jersey in America. And several other lands, tenements and hereditaments therein mentioned the said late King Charles the Second for the consideratn. therein mentioned did grant to the said late Duke of York and his heirs all that the Town of Newcastle other wise called Delaware and Fort therein or thereunto belonging lying between Maryland and New Jersey in America, and all that River called Delaware and soil thereof and all Islands in the said River and all that tract of land upon the West side of the river and bay of Delaware, which lyeth from Skoolkill Creek upon the said River unto Bombeys Hook and backwards into the woods so far as the Minquas country, and Bombey's Hook on the said River and Bay unto Cape Henlopen now called Cape James being the South point of a sea Warmet Inlet and backwards into the woods three Indian days journeys being formerly the claim or possession of the Dutch (or purchased by them of the natives) or which was by them first surrendered unto his said late Majesty's Lieut. Governor Col. Niccols, and which had been since surrendered unto Sir. Edmd. Andros Lieut. Governor of the said James Duke of York, and had for several years been in his possession, with the free use and continuance in, and passage into and out of all and singular ports, harbours, bays, rivers, isles and inlets belonging unto or leading to or from the said tract of land or any part or parcel thereof; And the seas, bays and rivers and soil thereof bending eastward and southward on the sd. tract of land and all islands therein. And also all the soil, lands, fields, woods, underwoods, mountains, hills, fenns, swamps, isles, lakes, rivers, rivulets, bays and inlets, situate and being within the said tract of land, and any of the limits and bounds aforesaid; together with all minerals quarries fishings, hawkings, huntings and fowlings, and all other royalties, privileges, proffits, commodities and hereditaments to the said town, fort, tract of land and premises, or to any or either of them belonging or appertaining with their and every of their appurtenances in America. And all his said late Majesty's estate, right, title, intrest, benefit, advantage, claim and demand whatsoever of in or to the sd. town, fort, tract of land and premises, or any part or parcel thereof, together with ye yearly and other rents, revenues and profits of the premises and of every part and parcel thereof. To hold to the sd. Duke of York and his heirs at and under the yearly rent of one beaver skin when demanded. On the behalf of Mr. Penn it is alledged; That it is probable the said bill in 1683 might have been passed into a grant; for that they produced from the Hanaper Office, where entries are made of grants that pass the Great Seal, a certificate of an entry in that Office in the words following, vizt: April the 6th 1683 A grant to James Duke of York of the Town of Newcastle als. Delaware, situate between Maryland and New Jersey in America to him and his heirs for ever, such entries not being made at the Hanaper Office but where Letters Patents do pass, which Patent might happen not to be enrolled, as it is not by the neglect of the Six Clerk called the Riding clerk, whose business it was to see the same inrolled. And as to the objection, that if the same were inrolled, that the same is a title subsequent to ye grant to Mr. Penn, and that Mr. Penn appeared as Agent for the Crown against the Lord Baltemore, they do humbly insist that Mr. Penn having a grant then so lately from the said late Duke of York might make use of the name of the said Duke with his leave in trust for the said Mr. Penn and his heirs, which they the rather apprehend for that the possession was always suffered to remain with the said Wm. Penn. And that if the sd. grant was passed and the said grant was in trust for the said Wm. Penn, the same extinguished the said covenant of Mr. Penn for accounting in the grant made to him thereof. Besides in the said last grant to the Duke of York it is recited that the lands were formerly the claim and possession of the Dutch and had been surrendered unto the Lieut. Governor of the said Duke of York, and had for several years been in his possession, which might enable him to make the grants in 1682 to the sd. Mr. Penn. And on the behalf of the purchasers it has been insisted, that it would be very hard to put them to any trouble who have bought under ye title and enjoyment of Mr. Penn, and have laid out great sums of mony in improving their purchases. And as to the title claimed by the Lord Baltemore we are humbly of opinion that ye same has already received a full and a final determination. For that 31 May 1683 Richard Burk Gent. servant to Charles Ld. Baltemore praying that the sd. Bill of 1683 might not pass the Great Seal until his then Majesty should be satisfy'd of the extent of the Letters Patents formerly granted to Cecil Lord Baltemore; wherein the said town and adjacent country is alledged to be comprized, which said petition being referred to the then Lords Commissioners for Trade and Plantations on the 13th of Nov. 1685 their Lordships made their report, wherein they report that having examined the matters in difference between the Ld. Baltemore and Wm. Penn Esq. on behalf of his then Majesty concerning his tract of land called Delaware, they found the land intended to be granted to Lord Baltemore was only lands uncultivated and inhabited by savages, and that the tract of land then in dispute was inhabited and planted by Christns. at and before the date of the Lord Baltemore's Patent, as it had ever since to that time and continued as a distinct Colony from Maryland. So that their Lordships humbly offered their opinion that for avoiding further differences the tract of land lying between the River and the Eastern Sea on the one side and Cheasapeak Bay on the other be divided into equal parts by a line from the latitude of Cape Hinlopen to the 40 degree of Northern latitude, and that one half thereof lying towards the Bay of Delaware and the Eastern Sea be adjudged to belong to H.M., and the other half to Lord Baltemore. Which report his then Majesty was pleased to approve of, and to order the said lands to be divided accordingly and the Lord Baltemore and Wm. Penn required to yield due obedience thereunto, which Rept. was also confirmed 22nd June 1709 by her late Majesty Queen Ann in Council, however this petition is a very great argument, that the Bill of 1683 to the late Duke of York never passed the Great Seal as on Mr. Penn's behalf is supposed for that it being stopt as must be presumed in that petition or grant after that matter settled which was in 1685 in the reign of the sd. Duke when King of England, could not pass the Great Seal in the name of King Charles to the Duke of York then being King of England but the entry in the Hanaper Office might have been made when the Privy Seal was brought to the Great Seal to be passed into a grant. On the whole matter we humbly submit it to your Majesty's consideration whether it will not be reasonable that your Majesty's title should be established by ye Court of Chancery before any grant should be made of the premises. And if any grant should be made we most humbly submit it to your Majesty, whether the claims of purchasers or grantees under Mr. Penn who have improved part of the said three lower Counties should not be established; But if Mr. Penn should have a title to the three lower Counties by virtue of ye two grants made to him by the late King James in 1682, when Duke of York we have not received any answer why he should not account according to his Covenant in the last of the said deeds for the moiety of the rents, issues and profits raised by virtue of that grant. Signed and endorsed as preceding. 14½ pp.
177. ii. Duplicate of C.S.P., 1716–17, No. 434.
177. iii. Duplicate of C.S.P., 1716–17, No. 434 i. [C.O. 5, 1265. Nos. 83, 83 i. (without Nos. ii., iii.); and (without enclosures) 5, 1293. p. 127; and (enclosures only) 5, 1233. Nos. 57, 57 i., ii.]
Oct. 31.
Hampton Court.
178. Order of King in Council. Referring following to the Council of Trade and Plantations for their report. Signed, Robert Hales. Endorsed, Recd. 5th, Read 6th Nov., 1717. 1¼ pp. Enclosed,
178. i. Petition of the Court of Directors of the South Sea Company to the King in Council. Pray H.M. to disannull the Act of Jamaica, 1716, and any future Act of Jamaica imposing a duty upon negroes brought in and exported by the Company, etc. Signed, Ja. Bateman, Sub. Governor, Saml. Shepheard, Deputie. Copy. 3½ pp. Enclosed,
178. ii. Copy of petition of the South Sea Company, C.S.P. 1716, No. 67 i. [C.O. 137, 12. Nos. 92, 92 i., ii.; and 138, 15. pp. 510–517.]
Oct. 31
Hampton Court.
179. H.M. Warrant granting a free pardon to Rebecca Curl of Barbados (v. 25th May, 1717). Countersigned, J. Addison. [C.O. 324, 33. pp. 108, 109.]
Oct. 31.
Hampton Court.
180. H.M. Commission to Thos. Bernard to act as Lt. Governor of Jamaica in case of the death or absence of Governor Sr. Nicholas Lawes. Countersigned. J. Addison. [C.O. 324, 33. pp. 109, 110.]