Journal, June 1737
Thursday, June 2. Present:—Earl Fitz-Walter, Mr. Pelham,
Col. Bladen, Sir A. Croft.
The Board took into consideration the draught of the report
to the Lords of the Committee, upon the subject of Lord
Baltimore's petition against the appointment of a Governor
of the three lower counties, by the proprietors of Pennsylvania,
ordered to be prepared at the last meeting, and the same was
Friday, June 3. Present:—Earl Fitz-Walter, Col. Bladen,
The representation to the Lords of the Committee of Council
upon the Lord Baltimore's petition against any Governor being
appointed by the proprietors of Pennsylvania for the three
lower counties, agreed to yesterday, was signed.
A letter from Mr. Davie, Secretary to the Salt Office, inclosing
the several accounts of the value of salt, was read.
Two letters from Major Gooch, Lieut. Governor of Virginia,
dated 5th December and 21st of February last, inclosing Acts
and publick papers, was read, and directions were given for
sending the said Acts to Mr. Fane for his opinion thereon, in
point of law.
A letter from Mr. Ashe to the Board, recommending William
Popple, Esqr., to be the Solicitor and Clerk of the reports, in the
room of Mr. Burrish, was read, and Mr. Popple attending, the
Board were pleased to appoint him accordingly.
A letter from Mr. Broughton, Lieut. Governor of South Carolina,
dated 20th February last, concerning the intended invasion
from the Spaniards, was read; but this containing nothing new,
since the Board's letter to the Duke of Newcastle of the 9th of
November, 1736, upon this subject, gave no further directions
Monday, June 6. Present:—Earl Fitz-Walter, Col. Bladen,
Mr. Brudenell, Mr. Plummer.
The Lord Shaftesbury, Lord Egmont, Lord Carpenter, Mr.
Oglethorpe, Mr. Vernon, Mr. Laroche and some others of the
Trustees of Georgia attending, as they had been desired, with
Mr. Clarke and Mr. Murray, their Counsel, and Mr. Paris, their
Solicitor, as also Mr. Fury, agent for South Carolina, with
Mr. Solicitor General Strange and Mr. Brown, Counsel in behalf
of that Province, and Mr. John Sharpe, their Solicitor; the
Board took again into consideration the two orders of the Committee of Council, mentioned in the minutes of the 19th of the
last month, referring to the Board two petitions from South
Carolina and Georgia, the first complaining of several obstructions given to the trade of South Carolina by the persons employed
in the Government of Georgia, the latter complaining of the
Governor, Council and Assembly of South Carolina, for having
opposed the execution of an Act approved by His Majesty,
for maintaining peace with the Indians in the province of Georgia,
and for having passed an ordinance for asserting and maintaining
the right and privileges of His Majesty's subjects of this Province
of South Carolina to a free, open and uninterrupted trade with
the Creek, Cherokee, and other nations of Indians, etc., in contempt of the said Act.
Mr. Brown, Counsel for Carolina, produced to their Lordships
the affidavits of Mr. Green, Mr. Cromby, and some others, relating
to the people of Georgia having fired a gun to oblige some vessels
to bring to at New Savannah Town in Georgia, notwithstanding
they were bound from Charles Town in South Carolina up the
River Savannah, to Old Savannah Town, now called New Windsor
in the said Province, and had a permit from the Governor to
carry thither some rum for the use of the garrison, which rum
was nevertheless seized and staved by the Naval Officer at New
Savannah in Georgia, which affidavits were severally read, as
also the aforementioned Ordinance.
Mr. Brown then said that he conceived the questions before
their Lordships were:
1st. Whether by the Georgian law for regulating the Indian
Trade, Carolina is excluded from trading with any Indians within
the limits of Georgia.
2ndly. Whether the navigation of the river Savannah was
not free and open to all His Majesty's subjects.
3rdly. Whether the aforesaid Ordinance was not a legal Act
of the Legislature of Carolina.
But first he premised that the Indians within the limits of
Georgia were not reckoned subjects, but allies to his Majesty;
That the trade between them and his Majesty's subjects of
South Carolina had subsisted for above 70 years; That in the
year 1707 the people of Carolina, not willing that any other
colony should share the Indian trade with them, had passed an
Act, laying so high a duty upon all goods proper for the said
Indian trade imported in that Province, that it amounted to a
prohibition; That the Virginia traders complained of this Act,
as it entirely interrupted their trade with the said Indians, and
that the said Act had been repealed, as prejudicial to the right
of the subject, notwithstanding it had been confirmed by the
then Lords Proprietors of Carolina. After this, another law
was passed in Carolina, by which it was made penal to trade
with the said Indians without a licence from the people of Carolina
for that purpose; That the people of Virginia again complained
of this law as an infringement upon their trade, and the law
was accordingly repealed. After this, they never made any
other attempt to exclude others of his Majesty's subjects from
trading with their Indians, but made several good regulations
for carrying on the said trade, binding to none but to the people
of their own Province.
That by the Georgia Charter, which is to subsist during 21
years, no land, settled prior thereto, was granted to the trustees,
so that all the land contained within the bounds limited by that
Charter, was not granted to them; That part of the land within
the said bounds, being settled by the Cherokee and other Indians,
remains their property. But that the Georgia trustees not
only set up a right over these Indians, but over their neighbours
of Carolina in point of trade. For by the Georgia law all
persons, trading to the Indians within the limits of Georgia,
were obliged to take out licences from Georgia under the penalty
of £100, and forfeiture of their goods, but no power was given
to imprison, notwithstanding they had exercised that power, as
appears by some of the aforementioned affidavits.
That this law cannot affect the people of Carolina, nor any but
the inhabitants of Georgia themselves; That it could never
have been the intent of the Crown, to have given by that law this
exclusive privilege to the people of Georgia; That supposing
even it had been the intent, yet it was not in the power of the
Crown to make such a grant; That the right of trade cannot
be taken from any of his Majesty's subjects, but by Act of
That the western bounds of Georgia not having yet been settled,
it does not appear that the Indians, to which the people of Carolina
have for so many years traded, are within their bounds. That
the Crown cannot gain any right, but by conquest or cession.
That the land of which the said Indians were possessed, not being
the property of the Crown, could not be granted to the trustees
of Georgia; That the said Indians had made several Treaties
with the Crown, and therefore could not be reckoned subjects,
but allies. And that therefore, although the people of Georgia
might have a power to make regulations for themselves, in
regard to their trade with these Indians, yet their regulations
could not bind the said Indians; That with regard to the trade
carried on between South Carolina and the said Indians, the
same caution was observed, in relation to licences and security
as in Georgia, and that therefore the Georgia law, obliging the
Indian traders from Carolina to take their licences, and give
their security in Georgia, could be of no use but to monopolize
the Indian trade to themselves.
That if this law can bind the Province of South Carolina, it
will likewise be binding to Great Britain and the other Plantations, and as in consequence no trade would be carried on with
these Indians but by the people of Georgia, they might set what
price they please upon their commodities, and thereby drive the
Indians to trade with the French or Spaniards, to the great loss
of the trade of Great Britain, by stopping the vent of such
British manufacutres as are purchased by the people of Virginia
and the other plantations, for their Indian trade; That the people
of Georgia had been very partial in the execution of this law,
there being no one instance of any Virginian trader having felt
the rigour of it; and therefore he hoped that the people of
Carolina might expect the same justice in their present complaint,
as the people of Virginia had formerly received in their complaint against Carolina, upon the same subject.
With regard to the navigation of the Savannah River, Mr.
Brown observed, that every river was a common highway, the
right of every subject; that the towns of Purrysburgh and Old
Savannah must receive their provisions from Charles Town
by this river; That the people of South Carolina do not want
to carry any goods into Georgia, which are prohibited by the
laws of the Province; That the vessels from Carolina, which had
been stopped at Savannah in Georgia, were fired at from thence,
and obliged to bring to, and that the rum they had on board,
although designed for Old Savannah in Carolina, had been
seized and staved, which is not warranted by their own law,
unless imported into Georgia; But that as this was not the case,
he hopes some reparation. would be made them for their loss.
That the aforementioned Ordinance, passed in South Carolina,
was intended to protect the innocent trader, who should suffer
in Georgia on account of his trade with the Indians, and to repay
his loss; That therefore it was a false suggestion in the Georgia
petition, to say, that this Ordinance repealed the Georgia law,
it being only temporary, intended to make satisfaction to such
Indian traders from Carolina, and to repay such losses as they
might sustain, on account of the aforementioned Georgia law,
until his Majesty should think fit to determine upon their petition
against the same; And that it had been very usual in Carolina
to pass Ordinances instead of laws, and with the same effect.
Mr. Clarke then, Counsel in behalf of the trustees, observed
to their Lordships, that an open and free trade with the Indians,
in the manner contended for by the people of Carolina, might be
productive of infinite disorders; That no trade can properly
be called free, that is not well regulated, and that the regulations,
now enacted in Georgia, are of advantage both to Georgia and
Carolina; That the places where the violences complained of
are said to have been offered, are within the bounds of Georgia;
That in the Georgia Charter, the Province is bounded by the
Northern stream of the Savannah river and Southern stream of
the river Alatamaha, (fn. 1) and that the bounds run Westerly from
the heads of those rivers to the South Sea, and that the people
of Carolina has passed the Savannah, in order to trade with the
Mr. Clarke further observed that if the people of Carolina contended that the Georgia Indians are not bound by the Georgia laws on account of their being allies, and not subjects to the
Crown of Great Britain, that could not be the case, because the
dispute was only between the king's subjects in Georgia and
his subjects in Carolina; That according to the Carolina way of
reasoning, the people of Georgia themselves, when in the Indian
country and trading with them, are out of Georgia, and consequently not subject to the Georgia laws. That the two Carolina
laws beforementioned of 1707, and 1711, said to have the same
effect as this, at present complained of in Georgia, were very
different, and were repealed, because they amounted to a prohibition of trade, all his Majesty's subjects being obliged to take out licences in Carolina in their passage through that Province
for that purpose, all Indians in amity with them being included
in the same law, whether they were within the bounds of Carolina, or not; That the licence now granted in Georgia to such as trade with their Indians is the same as what was given before
Georgia was separated from Carolina; That it could be no hardships to take out licences from Georgia, because part of Carolina
was as far from Charles Town, as from Savannah in Georgia. That if any Carolina Indian trader should cheat or abuse the
Indians, they would apply themselves to the people of Georgia
for redress, in which case it would be hard for the people of
Georgia to send as far as Charles Town, to put his security in
That there is no one instance of a licence having been refused
in Georgia, to a Carolina Indian trader or a Virginian trading
with the Georgia Indians: That the licences had only been
granted to the Carolina Indian traders: That the fur trade has
considerably increased, ever since the establishment of Georgia,
and is now four times as great. That before the regulations had
been established in Georgia for carrying on the Indian trade,
rum and spirits had been introduced amongst them, and being
intoxicated, they were cheated by the traders, and that therefore
the Georgia trustees had passed a law to prevent the importation of such spirits: That the Georgia law for regulating the
Indian trade, can by no means occasion a monopoly, as is pretended, since every one was free to trade with the Indians,
taking out a licence: That it was the interest of Georgia to do
the utmost in their power to preserve the friendship of the
Indians, and to prevent their falling into the hands of the French
and Spaniards: That the Indian trade within the bounds of
Georgia, being now under the same regulation, as when under
the direction of Carolina, was of the same advantage to this
Kingdom: That there was never so much peace with the Indians
as since the establishment of Georgia; And that the Indians
were never better pleased, than under the present regulation of
That with regard to the navigation of the Savannah, there
could be no contest, because as the stream of that river at the
mouth is divided by an island, and as the Northern stream is
large and navigable, no vessel from Carolina would come into
the Southern stream, but on account of prohibited trade. That
there had been no interruption in the navigation of the Northern
stream: That the vessels, whose rum had been staved, were
actually in the Savannah Port, otherwise they would not have
With regard to the violences said to have been committed
upon the Carolina Indian traders, Mr. Clarke observed, that
the affidavits to this purpose were mostly hearsay, and contained some facts committed since the presenting the Carolina
Petition, and therefore could not be proper evidence in support
That the person called an Indian trader, said to have been
ordered to be whipped, was a soldier, who by his officer's command
was to have been punished. But that this circumstance happened
two years before the Georgia law was passed.
Mr. Clarke said further, that the Trustees of Georgia do not
complain of the Carolina Ordinance as such, but as it was hastily
obtained upon a summons after the Assembly was adjourned:
That it must be considered as a vote of credit to incourage and
indemnify the people of Carolina to go to Georgia, and thereby
trading with the Indians, break through the Georgia law; And
that as it seems set up in opposition to the said Georgia law,
which was confirmed by the Crown, he hoped, their lordships
would show no countenance to it.
The Board then agreed to proceed further in the consideration
of this affair on Thursday morning next at ten o'clock, and
desired all parties would attend accordingly.
Tuesday, June 7. Present:—Earl Fitz-Walter, Mr. Plummer,
Col. Bladen, Sir A. Croft.
Mr. John Sharpe.
Letter from the agents of Antigua, St. Christophers, Jamaica,
containing their answer and observations upon Lord Waldegrave's
letter, sent to them the 20th ult., relating to French proposals
for regulating the navigation between the English and French
in America, was read. Ordered that Mr. Wilks, agent for New
England, be desired to attend the Board to-morrow morning, if
he have any observations to make upon the abovesaid answer.
An order of the Committee of Council, of 27th May, 1737,
referring to the Board 7 Acts passed in the Province of the
Massachusetts Bay in July, 1736, to examine the same, and
report their opinion thereon, was read, and orders were given for
sending the said Acts to Mr. Fane, for his opinion thereupon, in
point of law.
Wednesday, June 8. Present:—Earl Fitz-Walter, Mr. Pelham,
Mr. Brudenell, Mr. Plummer.
The Secretary acquainting the Board that Mr. Noden, agent
for Bermuda, desired the Board would please to appoint some
day to consider two Acts, entituled, An Act for laying a Duty of
Tonnage on the vessels therein mentioned, and An Act to prolong
the Duty of Tonnage layed by the aforesaid Act, the said Acts,
and Mr. Fane's reports thereon, were read, and the Board
appointed Tuesday next for that purpose, and ordered that
Mr. Noden and Mr. Leheup, agent for New York, should attend
at the same time.
Letter from Lord Harrington, dated June 3rd, 1737, transmitting the copy of a letter and six papers inclosed with it, from
Mr. Guy Dickens, His Majesty's Secretary at Berlin, relating to
a complaint of the British merchants at Konigsberg, was read,
and directions were given, that the French papers inclosed, be
Mr. John Crawford, attending in behalf of Mr. Skene and
Abercromby, whose petition was read the 24th ult., praying for
some allowance in consideration of their having run out the
bounds between this Province and North Carolina, and desiring
the Board would please to consider the same; Mr. Abercromby,
one of the petitioners, being very ill in Scotland, and not able
to attend the Board, their Lordships took the said petition
into their consideration, and gave directions for preparing the
draught of a representation thereupon.
Letter from Mr. Cleland, of the 24th June, 1736, transmitting
the Naval Office lists of vessels entered and cleared at South
Carolina for the quarters ended at Lady Day and Midsummer,
1736, was read.
An account of the imports and exports of South Carolina
from 1724 to 1736, with the number of vessels entering and
clearing out, in 1736, was read.
Letter from Mr. Willard, Secretary of the Massachusets Bay,
dated the 23rd December, 1736, transmitting minutes of Council,
the Assembly and Acts of that Province, for the last half year,
ending in August, 1736, was read.
Letter from Mr. Partridge, inclosing votes of the House of
Representatives in 1736, was read.
Letter from Mr. Bradley, Attorney General of New York,
to the Board, dated the 23rd of November, 1734, inclosing the
copy of a Bill for regulating costs upon prosecutions by information, and complaining of the injustice of the said Bill, and of
unfair usage he meets with from the Assembly there, and of the
Assembly's tacking of Bills derogative to the Crown to money
Bills, was read; but the Act not having been passed, this letter
is of no further consequence.
Letter from Mr. Sackett, to the Secretary, dated at New York,
the 14th of January, 1734/5, giving account of great quantities
of timber fit for his Majesty's Navy, growing in New York, the
Carolinas etc., and soil, good for raising hemp, was read.
Order of the Lords of the Committee of Council, dated the 21st
of April, 1736, directing the Board to lay papers before the
Attorney and Solicitor General, relating to Governors of plantations
voting as Councillors, was read.
Letter from Mr. Gray, inclosing some further consideration
of the consequence of the Bill now depending in the House of
Lords, relating to the dispute of the trade of the British Colonies
in America etc., was read.
Order of the Committee of 22nd March, 1733/4, referring to the
Board the petition of Sir Charles Payne for the island of St. John's,
one of the Virgin Islands, part of which he claims a right to, and
complaining that some Danes have settled on part of it, was read;
and the Board agreed that this petition should lye by, till some
person should make application to the Board, upon the subject
thereof, no application having yet been made.
Letters from Mr. Cole, dated in March and April, 1735, with a
project for finding out mines of copper, lead or iron ore in Newfoundland, or other plantations in America, was read.
Two letters from Capt. Pitt, Governor of Bermuda, dated the
6th of November, 1736, to the Board and the Secretary, desiring
leave to return home for six months, was read; but the Board
having inclosed in their letter to the Duke of Newcastle, of the
10th ult., an extract of a letter from Capt. Pitt, of 25th March last,
desiring leave to come home, the Board agreed to take no notice
of his letter of 6th November abovementioned.
Case of Mr. Cressop, complaining of his house being set on fire,
and himself and others unjustly imprisoned, and one killed
by a sheriff and his posse of Pennsylvania, with the copy of
a letter from the Governor of Maryland to the President and
Council of Pennsylvania thereon, was read. (Received from
Memorial of Messrs. Jennings and Dulany to the President and
Council of Pennsylvania, relating to Mr. Cressop's case, with an
answer thereto in December, 1736, was read. (Received from
Memorial delivered to the President and Council of Pennsylvania,
in December, 1736, relating to the ill treatment of Mr. Cressop, was
read. (Received from Mr. Sharpe.)
Letter from the President and Council of Pennsylvania to
Messrs. Jennings and Dulany, with an answer thereto, in December,
1736, relating to Mr. Cressop's case, was read. (Received from
Address of the Assembly of Maryland to the Lord Baltimore,
complaining of incroachments and ill usage from the Province of
Pennsylvania, in relation to the frontiers and boundaries of the
said Provinces, with 3 papers annexed, proving some arbitrary
proceedings in the Court of Judicature at Philadelphia, was read;
but the Board having, in their report to the Lords of the Committee
of the 3rd instant, relating to the appointment of Col. Thomas, for
the government of Pennsylvania and the three lower counties,
declared their opinion, that while the controversie between Lord
Baltimore, proprietor of Maryland, and Messrs. Penn, proprietors of Pennsylvania, was depending in the Court of Chancery,
it was not proper to take into consideration the subject matter
of the above papers, the Board agreed that the said papers should
lye by. (Received from Mr. Sharpe.)
Thursday, June 9. Present:—Earl Fitz-Walter, Mr. Pelham,
Col. Bladen, Mr. Brudenell, Mr. Plummer.
The Trustees for the colony of Georgia, Mr. Fury, agent for
South Carolina, with the same counsel, who attended the Board,
the 6th instant, attending again, according to appointment.
The Charter, establishing the colony of Georgia, was read, as
also the two Acts, passed by the Trustees in 1734, relating to the
Indian trade and to the prohibition of rum. And
Mr. Stevens being sworn, and asked several questions, relating
to the Savannah river, and to the rum, which was staved at New
Savannah, as mentioned in the minutes of the 6th instant, he said,
That he had been several times at New Savannah: That the
town lies on the South side of the river: That Hutchinson's
Island, a large island, lies in the Savannah river, over against
the town, and divides the river there into two streams: That
the North stream is as broad as the South stream, and is navigable
for large boats: That the boats loaden with goods for the Indian
trade commonly draw about three or four feet water: That the
North stream is the shortest passage these boats can take, from
Charles Town to Old Savannah Town in Carolina, now called New
Windsor: That the tide flows about 16 miles above New
Savannah: That there are very few sailing boats upon the river.
That he was at New Savannah, when the rum aforementioned
was staved: That he knew Mr. Shepherd, to whom the rum
belonged: That he saw his permit from the Lieut. Governor of
South Carolina to carry rum to Old Savannah: That Shepherd
said, he should now see what they would do with him at New
Savannah, having letters to deliver there: That on the 19th of
April, he saw Shepherd's boat under seizure, and heard his rum
had been staved: That he did not apprehend Shepherd intended
to sell his cargo at New Savannah, it consisting of blankets, and
goods only proper for the Indian trade.
Mr. Clarke then produced several affidavits to prove, that
Shepherd's boat went up directly to the landing place at New
Savannah; As also that the Cherokee, the upper and lower Creek
nations of Indians, were situate between the two rivers Savannah
and Alatamaha, and consequently within the bounds of Georgia.
Mr. Charles Wesley, Secretary for the Indian affaires in Georgia,
being sworn, produced the copy of a licence to one Samuel
Brown, an Indian trader, and declared no other draught had been
used, nor had it been refused to any Carolina man.
Mr. Murray likewise, counsel for the Georgia trustees, said,
that as he conceived there was but one single point in dispute
between the trustees and the people of Carolina, he would only
mention the several points, which had been insisted on by the
Counsel for Carolina, and leave them to their Lordship's consideration.
With regard to the navigation of the river Savannah, he said,
the trustees, did not, nor do not, dispute it: That the rum complained of, to have been unjustly seized, was seized and staved,
because it was imported into New Savannah, contrary to the
Georgia Act, prohibiting the same: That according to law, all
goods in port, are equally lyable to duties, seizures and confiscations, as if they were landed: That if the persons, whose rum was
seized, did not really intend to import the same, they have their
remedy against those, who had unjustly seized it, the Trustees
not being answerable; but that as the boats, out of which the
rum was taken, were within the port of New Savannah, which
includes all that part of the Southern stream between the said
town and Hutchinson's Island, it appeared evidently their intent
to land the same: That the counsel for Carolina had produced
evidence for two seizures only; and as they both happened
subsequent to the petition, they could not be urged in support of
the petition, although their validity is to be judged by the aforesaid
With regard to the man adjudged to be whipped, he was a
soldier, who having taken too great liberties with the one handed
king's wife, was, by his officer sentenced to be whipped, but was
afterwards pardoned at the request of the said king; But that
Mr. McKey, who sentenced the said soldier, having a commission
to regulate the Indian trade and traders, both from the Commander in Chief of South Carolina and from Georgia, if even he
had been guilty of a fault, it could not be laid to his charge, as a
Georgia officer, more than as an officer deputed from the Government of South Carolina.
That although it was certain no exclusive trade could be
granted, but by the authority of the legislature, yet as the king
had granted to the trustees a power of passing laws, those Acts,
when confirmed by the Crown, became Acts of a Legislature, so
that he apprehended the arguments used by the Council of Carolina
against the power of the Georgia trustees, of keeping the Indian
trade to themselves, must fall in course: That the trustees of
Georgia could have no intent to monopolize the Indian trade, since
no instance could be produced of a trader from Carolina having
been refused a licence.
That he conceived the great point in dispute was the Law of
Georgia, for regulating the Indian trade; a law passed by proper
authority, and asented to by the Crown; and although different,
yet not repugnant to the law of Great Britain. By which law,
the same regulations for the Indian trade are enacted, and the
same bonds to be entered into, by each Indian trader, as before
the Province of Georgia was separated from that of Carolina.
That the present question would be reduced to this; within
what bounds is the law of Georgia to take place ? or what is
Georgia? To solve this, he observed, that the bounds, by which
the Province of Georgia is described, are particularly mentioned
in the patent: That the Georgia law must take place, everywhere
within these bounds; And every one therein is subject to, and
must submit to, the law of Georgia: That if an Englishman should
commit murder in that part of the Indian country, which is
within the bounds of the Province of Georgia, as settled by the
patent, he must be tried in Georgia; And that he could not be
tried in Carolina, or any other Province, for it: That he conceived
it was of the last consequence, but to surmise, that the Indians
were not subjects of Great Britain: That he conceived, this had
ever been the sentiment of the Board of Trade: That when Lord
Baltimore's patent was granted, for the Province of Maryland,
the country belonging to savages was expressly granted to him:
That no grant was ever made, with a saving to the Indian land:
That he conceived the Cherokees, Creeks, and every other nation
of Indians within the bounds of the Georgia patent, were Georgia
Indians: That it is but common policy, to allow it, because otherways, if any of these Indians were to sell their land to any other
Province, or person, the part so sold would cease to be Georgia,
which is absurd. And to shew that it was the common sentiments
of the people in America, that the Indians within the limits of
each province, were Indians of, and under the protection of, that
province, he quoted several laws of Pennsylvania, Rhode Island,
Maryland, Virginia and the Massachusets Bay.
(Pennsylvania Laws:—folio 27. Rhode Island:—folio 4.
Another in … 1727. Another in … 1729. New England:—
folio 167. Another in … 1725. Maryland:—folio 120.
Virginia:—folio 31; folio 37.)
Mr. Murray then observed that the instance produced by the
counsel for Carolina of the Virginia complaint in 1707, and 1711,
against Carolina, was not an instance in point; because the
Georgia law only regulates the trade within the Province, whereas
the Carolina law, complained of by Virginia, affected people
out of the Province: That the Virginians complained against
Carolina for having seized their goods out of Carolina, and that
the Board of Trade, in their report upon this complaint, expressly
declared, that the Western Indians (among whom the goods were
seized) were out of Carolina, and upon that foundation proposed
the repeal of the Carolina law, which he conceived they would not
have done, had the then Carolina limitations and restraints
been confined to Carolina alone, as in the case of the Georgia law,
now complained of, by the people of Carolina; And that with
regard to that law, he conceived the king could not repeal it,
without the consent of the trustees, it having been confirmed by
Mr. Murray then added, upon the subject of the Carolina
Ordinance, for asserting and maintaining the right and privileges
of His Majesty's subjects of this Province of South Carolina, to a
free, open and uninterrupted trade with the Creek, Cherokee and
other nations of Indians, etc; that if the Georgia law was enacted
by proper authority, as he conceived it was; and if the limits
of Georgia, as described in the patent, are really the limits of
that Province, he submitted to the Board, whether the said
Ordinance could be understood in any other light, than an attempt
of the people of Carolina, to repeal a Georgia law, confirmed by
The Board then proposed to go on, upon the reply to-morrow
morning, but Mr. Brown, Counsel for Carolina, praying a longer
day may be appointed, being engaged for the first days of the
term, which commences to-morrow, and having no day at liberty
till Saturday sennight, at six in the evening, the Board appointed
that all parties should attend accordingly at that time.
Friday, June 10. Present;—Earl Fitz-Walter, Mr. Brudenell,
Mr. Plummer, Mr. Pelham.
Mr. Wilks, Agent for the Massachusets Bay, attending, as he
had been desired, their Lordships took again into consideration
the answer from the agents of the Leeward Islands and Jamaica
upon the French proposals for regulating the navigation between
the French and English in America; he acquainted the Board, that
he objected to that part of the said answer, which proposed some
further restraints to be laid upon the trade carried on between
the Northern colonies and the neutral ports of St. Eustatia and
Curaçoa; which trade he apprehended to be of great service,
both to the Northern colonies, and to Great Britain. But he
proposed that the French Edict should be laid aside, and that the
trade should remain upon the foot of the Treaty of Neutrality of
He then presented to the Board the case of the British Northern
colonies, as his reasons for objecting to any restraint being laid
on the aforementioned trade.
The draught of the report, ordered to be prepared the 8th
instant, upon the petition of Messrs. Skene and Abercromby,
who were appointed Commissioners on the part of Carolina to
run the division line between that Province and North Carolina,
was agreed to and ordered to be transcribed.
Tuesday, June 14. Present:—Earl Fitz-Walter, Col. Bladen,
Mr. Brudenell, Sir A. Croft, Mr. Plummer.
Ordered that a letter be wrote to Mr. Carkesse, desiring an
account of all the duties payable upon the several species of goods
imported from Flanders, and the times when those duties were
laid, as also what goods have been imported from Flanders and
exported thither, from Christmas, 1730, to Christmas, 1736, or as
near that time as may be.
The secretary laid before the Board an account of the incidental
charges of this Office, from Christmas, 1736, to Lady Day, 1737,
amounting to £306 16s. 11d., and a letter, for inclosing the same
to the Lords of the Treasury, was signed.
The secretary acquainted the Board that Mr. Leheup, who was
desired to attend the Board, this day, as agent for New York,
was not so; and Mr. Noden, agent for Bermuda, attending, as
he had been desired, objected to the Act passed at New York
in 1734, mentioned in the minutes of the 8th inst., as it greatly
affects Bermuda, whose vessels are generally numerous, and are
the carriers of America: That the duty amounts to about two
shillings sterling per ton; other islands not so much affected as
Bermuda; because more vessels go to New York from Bermuda
than from all the other islands together.
The Board agreed to take this Act into further consideration
at another opportunity.
Wednesday, June 15. Present:—Earl Fitz-Walter, Mr.
Brudenell, Mr. Plummer, Col. Bladen.
The Board, taking into consideration the draught of the minutes
of the Board of the 9th instant, relating to the dispute between
South Carolina and Georgia, the said draught was agreed, and
ordered to be entered.
Thursday, June 16. Present:—Earl Fitz-Walter, Mr.
Pelham, Col. Bladen.
The letter from Lord Harrington, read the 8th instant, with
the several papers, therein referred to, and the translations thereof,
relating to a complaint of the British merchants settled at Konigsburg, of a duty of 25 Rix dollars laid on them, was again read, as
also the said papers, and the Board agreed to consider further
thereof, at another opportunity: in the mean time, ordered that
Mr. Spellerberg be desired to attend the Board to-morrow morning.
Friday, June 17. Present:—Earl Fitz-Walter, Sir A. Croft,
Letter from the Duke of Newcastle, dated this day, directing
the Board to prepare draughts of a Commission and Instructions
for Sir Orlando Bridgeman, appointed Governor of Barbados, was
read, and directions were given for preparing draughts accordingly.
Mr. Spellerberg, not attending, as he had yesterday been desired,
upon the subject of Lord Harrington's letter, and other papers,
mentioned in yesterday's minutes, relating to complaints of some
English and Scots merchants settled at Konigsburg, of a duty of
25 Rix dollars, laid on them, the Board take those papers again
into consideration, and gave directions for preparing the draught
of a representation thereupon.
Saturday, June 18. Present:—Earl Fitz-Walter, Mr. Pelham,
Mr. Brudenell, Mr. Plummer.
The Earl of Shaftsbury, Mr. Laroche, and some of the Trustees
of Georgia, attending, according to appointment, as also Mr.
Fury, Agent for South Carolina, with the same Counsel, as
attended the Board the 9th instant, the Board take again into
consideration the disputes between South Carolina and Georgia, and
Mr. Solicitor General Strange, Counsel for the Province of
South Carolina, observed by the Board, by way of reply to what
had been offered by the Counsel for the Georgia trustees, that,
although they had not shewn any right to the power claimed by
them, of preventing any trade being carried on with the Indians,
but by persons licenced for that purpose by the Government of
Georgia, nor to an exclusive right to the South stream of the
river Savannah, yet it appeared, from what had been offered,
that they intended to exclude the Province of Carolina from carrying on any trade with the Indians, said to be within Georgia, by
making the licences so difficult to be obtained, as not worth while
for the people of Carolina to endeavour to obtain them.
That if the Georgia law could prevent the people of Carolina
from carrying on any trade with the said Georgia Indians, it
must, in consequence, be binding upon the Indians, and prevent
them trading to Carolina; But that no law can bind the Indians:
That if it could, and if the Georgia Indians were really bound by
the Georgia law, it would be very proper likewise to pass a law,
to prevent those Indians from trading with the French or
Spaniards, as they certainly will, if they should find that the
people of Georgia pretend to confine their trade.
In answer to it's having been observed by the Counsel on the
other side, that several laws were passed on some other of the
colonies (vide minutes, folio 130) for binding the Indians within
them, he said, that having perused those laws, he found they were
laws, for preventing the Indians being imposed on, and not for
binding or restraining them in any point of trade.
That if it was necessary to shew the custom of the colonies
with regard to the Indians, he desired to mention an Act, passed
at Virginia in 1734, entitled, An Act to enable the Nottoway Indians
to sell certain lands; and for discharging the Indian interpreters, in
which the consent of the Nottoway Indians was made necessary,
even to the passing the Act.
That with regard to it's having been observed by the Counsel
for Georgia, that the Carolina Act of 1707 had been repealed,
because it affected the trade out of the Province, he said the
present law was a parallel case, it not appearing from any thing
offered, on the other side, that the Indians in question were
actually situate within Georgia: For although it was said in
some of the affidavits produced by them, that the Indians traders
from Carolina had crossed the river Savannah to go to the said
Indians, yet it was not said, that they did not likewise cross the
Alatamaha; which he was instructed to say, they were obliged
to do, in which case they were in the Province of South Carolina,
and not in Georgia.
That with regard to the increase of the trade of South Carolina,
said by the Counsel for Georgia, to be owing to the establishment
of the province of Georgia, he desired their Lordships would
please to observe, that ever since the purchase of South Carolina
by the Crown, the trade of that Province had annually increased,
as appears by the very account produced by the other side; And
that therefore they thought themselves obliged to his Majesty's
protection for this increase in trade, and not to any advantage
from the Georgia settlements.
That it appears from their own witness, Mr. Stevens, and from
other evidence, that the people of Georgia had made an ill use
of the Act, by seizing and staving rum, designed for Old Savannah
in Carolina, as more particularly explained in his evidence.
Mr. Brown, Counsel on the same side, likewise observed by way
That although Mr. Murray, in behalf of the Georgia trustees,
had given up their pretence of excluding the people of Carolina
from the right of navigation in the South stream of the Savannah,
yet as it was with this exception, that vessels using that stream
should not have on board any goods prohibited by the Georgia
law; they in fact still insisted on their right of exclusion, because,
(as in the case of the rum seized) the vessel was in the South
stream, and was consigned to Old Savannah: That as the river
was not granted by the Charter, he conceived, the islands in the
river could not be granted, and that therefore the New Savannah
Port could only be understood to be the very port itself, and not
that part of the river between Savannah Town and Hutchinson's
island: That the vessel, whose rum was seized, having been
brought to by a gun fired at her from Savannah, could not be
said to have imported rum, and therefore her seizure was not
justified by the Act itself.
That with regard to the Indian trade, as the people of Georgia
are not obliged to grant licences to any Indian trader, but such
as they please, it must be implied that they have the power of
refusing, and that therefore this law was binding upon the
Province of Carolina.
That by several treaties made with the Indians in question, a
free trade was stipulated with all his Majesty's subjects, and that
any Act, passed by the Georgia trustees, to restrain the said trade,
was a manifest violation of the said treaty. He therefore hoped
his Majesty would please at least to declare, that, in the confirmation of the said Act, he did not intend to grant any exclusive
Tuesday, June 21. Present:—Earl Fitz-Walter, Mr. Pelham,
Col. Bladen, Mr. Brudenell, Mr. Plummer.
Letter from the Duke of Newcastle, dated yesterday, directing
the Board to prepare draughts of a Commission and Instructions
for Lord De la Warr, appointed Governor of New York and New
Jersey, was read; and directions were given for preparing the
Letter from the Duke of Newcastle, dated yesterday, directing
the Board to prepare draughts of a Commission and instructions
for Edward Trelawney, Esqr., appointed Governor of Jamaica,
was read, and directions were given for preparing the draughts
The Board then taking into consideration the subject of the
dispute between South Carolina and Georgia, agreed that the
following queries should be sent to the Attorney and Solicitor
General, for their opinion, in point of law;
Whether an Act of the Trustees of Georgia, or of any
Assembly, passed in the colonies abroad, and confirmed by
the Crown, can grant to any of the said Provinces an
exclusive trade with the Indians, dwelling within their
respective Provinces ?
Does the Act above mentioned exclude all persons whatsoever, whether inhabitants of Georgia or not, from trading
with the Indians, settled within the bounds of the Province
of Georgia, as described by the Charter, except such as
shall take out licences, according to the directions of the
said Act ?
Wednesday, June 22. Present:—Earl Fitz-Walter, Mr.
Pelham, Mr. Brudenell, Mr. Plummer, Col. Bladen.
Letter from Mr. Clarke, Lieut. Governor and Commander in
Chief at New York, dated September 20th, 1736, about the proceedings of the Assembly, in relation to the administration of the
Government there, and inclosing a printed paper on that head,
Letter from Mr. Hamilton, Commander in Chief of New Jersey,
to the Secretary, dated March 25th, 1737, complaining of Mr.
Morris, for disturbing the peace of the Province, and inclosing a
state of the case between them, and a proclamation issued by
Mr. Morris, pretending a power to adjourn the Assembly, was read.
A letter to Mr. Clarke, Lieut. Governor of New York, and
another to Mr. Hamilton, President of the Council and Commander
in Chief of New Jersey, signifying the Lord De la Warr's being
appointed Governor of New York and New Jersey, was agreed to,
The Board take into consideration the draught of a representation upon the French proposals for regulating the navigation
between the English and French in America, and made a progress
The Board take into consideration the draught of a representation upon Lord Harrington's letter, read the 8th instant, relating
to some impositions, complained of by some English and Scots'
merchants at Konigsberg, and made a progress therein.
Wednesday, June 29. Present:—Lord Monson, Mr. Pelham,
A new Commission under the Great Seal, dated the 27th inst.,
appointing John, Lord Monson, and Robert Herbert, Esq.,
Commissioners of this Board, in the room of Earl Fitz-Walter and
Sir Orlando Bridgeman, and continuing Mr. Pelham, Ccl. Bladen,
Mr. Ashe, Mr. Brudenell, Sir Archer Croft, and Mr. Plummer,
in the same Commission, was read, and Lord Monson took his
place at the Board accordingly.
Mr. Paris, Solicitor for the Georgia trustees, presents a petition
from the said trustees, desiring a copy of the reference to the
Attorney and Solicitor General of the 21st inst., upon the Georgia
law, which was read, and
Mr. John Sharpe.
Mr. John Sharpe, Solicitor for Mr. Fury, agent for South
Carolina, attending, desired the abovementioned reference to the
Attorney and Solicitor General may be varied, and made only to
the Attorney General, on account of the Solicitor General's
having been concerned as counsel on one side, but their Lordships
did not agree thereto. (fn. 2)
Mr. Paris being withdrawn, the Board upon considering the
memorial from the trustees, did not think fit to grant a copy of
the reference desired.
Ordered that a letter be wrote to the Secretary of the Commission of the Revenue in Ireland, for an account of the exports
and imports between Ireland and Flanders.
Thursday, June 30. Present:—Lord Monson, Mr. Pelham,
Mr. Edwards, Secretary to the Turkey Commission, attending,
acquainted the Board, that the Commission had no observations
to make upon the treaty between Sweden and Turkey, sent to
them the 10th May last.
Ordered that the draught of an answer be prepared to Lord
Harrington's letter upon this subject, read the 6th May last.
The Board then took into consideration the draught of the
representation, mentioned in the minutes of the 22nd inst.,
relating to the navigation of the English and French in America,
which was agreed to, and signed.
A representation, with the draught of a commission for Mr.
Trelawney, appointed Governor of Jamaica, was agreed to, and
signed, as also a letter, for inclosing the same to the Duke of
A representation, with the draughts of Commissions for the
Lord De la Warr, appointed Governor of New York and New
Jersey, was agreed to, and signed, as also a letter, for inclosing
the same to the Duke of Newcastle.
The draught of a representation, mentioned in the minutes of
22nd inst., relating to some impositions complained of by English
merchants at Konigsberg, was agreed to, and signed.