America and West Indies: August 1700, 13-15

Pages 484-487

Calendar of State Papers Colonial, America and West Indies: Volume 18, 1700. Originally published by His Majesty's Stationery Office, London, 1910.

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August 1700

716. John Montagu to the Council of Trade and Plantations. Memorial on behalf of several hundreds of the owners of land and principal inhabitants of the Province of New York touching some Acts, now before their Lordships, of the Assembly, or pretended Assembly, March 2nd, 1698 (1699)—May 16th following. (1) The Act for committing Ebenezer Wilson and Samuel Burt, farmers of the Excise of the Island of Nassau, for their contemptuous refusing to render an account of what they farmed the same for to the respective towns, counties and manors on the said island for the last year. Their case, as I am informed, was this: They lost by the farm, and. being traders, were unwilling that their loss should be made public and prejudice their credit. The Governor sends for them, and, extra-judicially, requires them to give an account upon oath which he likewise would extra-judicially have administered to them, of what they had made of their farm. They refused to take this oath, and the Governor committed them. After they had lain several days in prison, then is this Act procured to be passed. Now, either these gentlemen were obliged by law antecedent to this Act to give an account required, or they were not. If so, there was no occasion for this Act; if not, then the Governor, in committing them, was guilty of a very arbitrary proceeding and a great violation of the Law, and this Act is made to countenance or excuse his illegal Act. Even had they been obliged to give such account by law antecedent to this Act, the Governor could not compel them thereto extra-judicially; but they would even in that case have been compellable thereto only in the ordinary course of justice. They were guilty of no manner of offence in refusing to take the oath the Governor thus arbitrarily and illegally tendered to them.
(2) The Act for vacating, breaking and annulling of several extravagant grants of land, etc., is complained of, not only as a great injustice to the grantees and divers others, but also as a thing of dangerous consequence, that renders the properties of all the lands within this Province incertain and precarious and perfectly at the will of the Governor and fourteen or a less number of men. First I must take notice of a Clause that is very strangely thrust into this Act, and more strangely into the preamble, among the recitals of the grants there said to be extravagant; "That it having appeared to the House of Representatives convened in General Assembly that Mr. Godfrey Dellius has been a principle instrument in deluding the Mohacque Indians, and illegally and surreptitiously obtaining the said grant, that he ought to be and is hereby suspended from the exercise of his ministerial function in the city and county of Albany." What is here meant by deluding, and what by surreptitiously obtaining this grant, is so uncertain that nothing can be more. To attaint and punish a man by the Legislative power and not to specify in the Act of Attaint the offence for which he is punished, is a method altogether strange and unusual and very unbecoming the justice and wisdom of a legislative power to use. It is very well known that Mr. Dellius has been very instrumental in converting the the Mohaques and other Indians to the Christian and Protestant Religion and thereby keeping them from the French and uniting them to the English interest, and, for ought appears by this Act, that may be the deluding there meant. The punishment is very severe and yet uncertain. Nobody can learn by this Act for how long he is suspended. It is hoped that your Lordships will think that before his Majesty gives his authority for the inflicting so severe a punishment on a particular person, especially a Minister, he will be better satisfied of the crimes laid to his charge than he can be by the uncertain, general and ambiguous terms of this Act. As to the principal part of this Act, the advocates of it have endeavoured to represent it as done pursuant to the Lords Justices' Instructions. But their Instructions were to break the grants by legal means, a term which must relate to the Law then in being and imply, vacate them by a proceeding in the ordinary course of justice. This Act is not at all in the circumstances of an Act of Resumption of Crown Lands in England, for all that have any lands in this Province have a grant from the Crown of them, so that to disturb these grants is to disturb the titles of the land of an whole Province; and most of the lands in question were by the grantees purchased of the Indians, and afterwards grants were taken of them from the Crown of England under small Quit Rents by way of acknowledgement to fix the tenure and sovereignty of them in this Crown. And so, as to these lands, the revenues are not diminished by the King's grant, but the territories and dominions of the Crown are enlarged by the subjects' purchase. The Act is unreasonable; at least the Grantees and those that have taken leases and conveyances under the grants made by the Government ought in all reason and justice to be satisfied all charges they have been at about the lands, which the Government afterwards arbitrarily wrests out of their hands. The Act seizes into the King's hands and divests several persons of lands that were never the possessions or rights of the Crown, but purchased by those persons of the Indians. The Act is arbitrary and unjust in its use and interpretation of the phrase "extravagant grants"; it tends, also, not only to the discouraging and interruption of all planting and improving of lands within this Province, but even to the subversion of Government and reducing all things to disorder and confusion. (Argued at length). I would also humbly put your Lordships in mind of the dangerous consequences of the Legislative power acting as executive in this Province. Further, His Majesty has solemnly declared in Commissions to the Governors that their grants should be good and effectual. This Act is in manifest contradiction to that declaration; and will do more mischief by far than all the lands in question are worth.
(3) The Act for granting 1,500l. to the Earl of Bellomont and 500l. to Capt. John Nanfan, the Lieut. Governor. Your Lordships have already given such just and excellent reasons against such presents in general, that the complainers doubt not but upon consideration of those reasons and of the undue elections of the Representatives, or at least some of them, that sat in this Assembly and voted for this and the two former, and of the ill company this Act comes in, you will advise His Majesty to reject it, or at least to direct that the money thereby raised be applied to the uses of the Province. If the advocates for these Acts defend them, I humbly desire that they may also do it in writing without delay, and that I may have the favour of a copy of it. Signed, Joh. Montagu. Endorsed, Recd. 13, Read 14th Aug. 1700. 22¼ pp. [Board of Trade. New York, 10. No. 23; and 54. pp. 341–374.]
Aug. 13.
717. Council of Trade and Plantations to the Lords Justices. Recommending that Mr. Lewis Burwell, "a person not only recommended by the Governor, but of whom we have also otherwise received a good character," be appointed a Member of Council of Virginia, and Mr. Richard Lee be dismissed, as he desires, by reason of his age and infirmites. Signed, John Pollexfen, Abr. Hill, Geo. Stepney, M. Prior. [Board of Trade. Virginia, 38. p. 22.]
Aug. 13.
718. Isaac Addington to William Popple. Your Honour will receive by this conveyance, the Seaflower, the duplicates of the Minutes of Council, Jan. 24th, 1699—March 21st, 1700, and of the Journal of Assembly, March, 1699; and of the Acts passed then and in May, 1700. The further Minutes of Council and Journal of Assembly are preparing to be sent by the next. I should be much obliged, if your Honour would please to notify me of the safe arrival of the laws and minutes from time to time. His Excellency the Governor is now at New York; it's uncertain whether he will return to this Province again before next spring. He is advised of all public occurrents here from time to time relating to the Government, and is very careful and particular in transmitting the same unto the Plantation Board. That which at present is of greatest concernment is to keep the Indians under His Majesty's obedience, and to prevent their breaking forth afresh into acts of rebellion and murder, which the Government find very difficult, and I fear will be impracticable, so long as the boundaries of the English and French territories lie in dispute undetermined, and consequently the right of jurisdiction over the Indians. Signed, Isa. Addington. Endorsed, Recd. 30th, Read 31st. Oct., 1700. 1 p. [Board of Trade. New England, 11. No. 9; and 38. pp. 284, 285.]
Aug. 13. 719. Journal of Council of Trade and Plantations. Letter from Lord Bellomont, June 22, read. Papers therein referred to, laid before the Board.
Representation that Mr. Lewis Burwell may be constituted a Member of Council of Virginia, signed.
Aug. 14. Letter from Lord Bellomont to the Secretary, June 22, with enclosure, read.
Memorial of John Montague, Solicitor for some inhabitants of New York, in opposition to three of the Acts now under consideration of the Board, read. Ordered that it be communicated to Mr. Champante, in order to such answer as he shall think fit to make unto it. [Board of Trade. Journal, 13. pp. 149–153; and 97. Nos. 139, 140.]
Aug. 15. 720. Journal of Council of Trade and Plantations. Mr. Hill communicated to the Board an account of the pitch and tar imported from Stockholm into England, 1699.
Mr. John Montagu's Memorial against some of the New York Acts, having been communicated to Mr. Champante, he now acquainted their Lordships that he had shewn to Mr. Solicitor that part of the Memorial which contains objections against the Act for committing Ebenezer Wilson and Samuel Burt, etc.; and that Mr. Solicitor persisted still in the opinion expressed in his report, that the said Act is agreeable to Law and Justice; and added that he will be ready to justify that opinion whenever required. Whereupon their Lordships took again into consideration the remaining Acts of that Province, upon which they had lately suspended their opinion, and gave some directions for preparing a representation upon them to be laid before their Excellencies the Lords Justices, and for writing to the Earl of Bellomont upon that subject.