America and West Indies: June 1702, 11-15

Pages 383-390

Calendar of State Papers Colonial, America and West Indies: Volume 20, 1702. Originally published by His Majesty's Stationery Office, London, 1912.

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June 1702

June 11. See preceding abstract. [C.O. 5, 788. pp. 347–349.]
June 11. 585. William Popple to the Attorney General. Enclosing following queries from the Council of Trade and Plantations for his opinion:—
(i.) Whether a Governor or Lt.-Governor of a Plantation under a Propriety or Charter Government can, by 7 and 8 William III, be legally qualified for such imployment without H.M. approbation first obtained, and taking the oaths as directed by the Act? (ii.) Whether the Courts of Admiralty directed to be settled in the Plantations by that Act be not the proper and competent Courts for trials of causes relating to breaches of the Acts of Trade, when the information or action is there brought by Officers of the Queen's Revenue, or other informers? (iii.) Whether any other Court, after the Court of Admiralty hath taken cognizance of any such cause, can take upon them to judge the same; and whether any such Courts can otherwise take cognizance of such causes than by the consent of the Queen's Officers? (iv.) Whether the Commissions granted by Mr. Penn to Waterbailiffs (copy enclosed) do not interfere with the Admiralty Jurisdiction intended by the aforesaid Act? Mem. The same letter, with the last three queries, was sent to Sir John Cook, the Queen's Advocate General. [C.O. 5, 1290. pp. 25–27.]
June 11.
586. William Popple to William Lowndes. The Lords Commissioners for Trade and Plantations having lately stated several questions of great importance to H.M. service relating to trade in the Plantations, are desirous that the Lord High Treasurer be moved for his Order to the Solicitor of the Treasurer to attend H.M. Attorney and Advocate General upon this occasion. [C.O. 5, 1290. p. 27.]
June 11.
St. James'.
587. Order of Queen in Council. Approving of draught of letter to Governor Nicholson [re quota] and ordering the Earl of Nottingham to cause a letter to be prepared for H.M. signature accordingly, and dispatched away to Col. Nicholson by the first conveniency of shipping. Signed, John Povey. Endorsed, Recd. 23, Read June 26, 1702. ¾ p. [C.O. 5, 1312. No. 36; and 5, 1360. pp. 183, 184.]
June 11.
St. James's.
588. Order of Queen in Council. Upon the petition of Sir Thomas Day, in behalf of his son, Samuel, late Governor Day, setting forth that he being recalled from that Government, was arrested and still detained prisoner at Bermudas, upon an action of 2,000l. entered against him by Coll. Richier, late Governor of that Island, upon pretence he did not put in execution an Order of H.M. in Council for a security to be reciprocally given by Richier and Col. Goddard, and praying that Day may be forthwith sent home into England, to answer what may be objected against him, and Mr. Attorney General having given his opinion that H.M. may properly order Mr. Day's being sent for to England (security being first given for his appearing to answer in such Court or place as H.M. should direct to such matters as on H.M. behalf shall be objected against him and also to appear to such suits as shall be brought against him by H.M. subjects for matters by him done in the Bermudas, and to give bayles to such suites according to Law), and also to the Secretary there to let him have such copys as are desired by the said petition, they being absolutely necessary for making his defence, which report H.M. approving and bond being given to H.M. accordingly in the penalty of 4,000l., Ordered that Samuel Day be permitted forthwith to come over into England with his effects, without any lett or molestation, and that the Secretary of the Island do give him authentick copys of all such writings and proceedings as he shall desire. Whereof the Governor and Council of Bermudas and all whom it may concern are to take notice and govern themselves accordingly. Signed, John Povey. Endorsed, Recd. Read July 8, 1702. 2½ pp. [C.O. 37, 3. No. 74; and 38, 5. pp. 237–239.]
[June 11.] 589. Col. Quary to the Council of Trade and Plantations. His voyage to England and attendance on H.M. service for nine months, will cost him 300l., besides the charge of several vexatious suits. Prays the Board to recommend the payment of his charges. Prays that his Commission and Instructions may be hastened, so that he may go to discharge his duty by the first convoy. Prays that their Lordships will write a few lines in answer to the Address from the Assembly of the Three Lower Counties and the Members of the Church of England, which will be of great service to H.M. by encouraging their zeal for the same; and that their Lordships will represent to H.M. their unhappy circumstances under Mr. Penn's Government, and that She will be graciously pleased to take them under her more immediate care and government. Prays that some effectual care may be taken by their Lordships to secure him in the discharge of his duty from the effect of Mr. Penn's prejudice and malice, grounded upon no other reason, but that he hath exhibited several charges against Mr. Penn, all which he hath fully proved. Signed, Robt. Quary. Endorsed, Recd. Read June 11, 1702. 1 p. [C.O. 5, 1261. No. 108; and 5, 1290. pp. 23–25.]
June 11. 590. Edward Northey to the Council of Trade and Plantations. I have considered the Laws (enumerated) passed in the General Assembly of the Leeward Islands at Nevis in December last, which I conceive are agreable to Law and Justice and doe not contain anything prejudicial to H.M. Royal prerogative, except the Act for the better observation of the Lord's Day. which (among other things) enacts that all Acts of Parliament made or to be made in England for securing to H.M. leige people their Religion, Lives, Libertyes and Properties shall be in force in all the Carribbee Leeward Islands with all the pains and penalties therein contained, as if in that Act verbatim recited, by which Law great inconveniences may arise, for that thereby many Laws about property may be sett up, which may not suit the Plantations, and many about Liberty, which may too much lessen H.M. power and prerogative in those Islands, and by reason of the generality of the said Act many questions will arise what the English Laws are that are to take place by virtue of this Act, and therefore I think approving the same will be prejudicial to H.M. and her people. Except also the Act for the better and more certain support of Ministers, which enacts that every Minister of a parish, after due presentation made to it, shall be entitled to and receive from the same parish 130l. per annum besides his fees and perquisites, and which nevertheless further enacts that all parish taxes and levies of what kind soever shall be effectually sued for and recovered within three months after the same shall be due, else to be void, and no demand to lie for the same in Law or Equity, which will be very unsafe for Ministers, who are not themselves to collect their dues, but the same are to be collected by the Parish Officers, and otherwise inconvenient, for that amongst parish taxes and levies, the Minister's dues, the charge of repairs of churches, and the relief of the poor are included, and the same are to be collected by the Parish Officers, by whose neglect, or by the obstinacy of the persons bound to pay the same, if they be not recovered within that time, the same will be all lost, besides it is thereby also enacted, that the Governor and Council shall, in certain cases, have power to suspend and deprive Ministers, and no appeal is given from such determination, as I think there ought to have been, to the Queen, and although an account of such proceedings is thereby directed to be transmitted, to prevent all misrepresentations, to the Lord Bishop of London, that his approbation and correction may be a safe direction in cases of like nature, yet, as it is worded, it may be doubtfull whether the Bishop of London may repeal the sentence in such case, no Appeal of that Law being given by the party to him. Except also, that the Act to prevent Trade or commerce with the French or any other foreign Plantation by the inhabitants of H.M. Caribbee Leeward Islands, which seems intended and made on account of the present circumstances of affairs, is made perpetual, which, when a Peace shall be hereafter made, may be found inconvenient. And as to the Act to prevent Papists settling in the said Islands, which obliges all persons that come to reside there to take the oaths of Allegiance and Supremacy and subscribe the Declaration made in the 13th of Charles II, for that it is not certain what Declaration is meant by this Act, there being two several Declarations in two Acts made in that year, one of which wd. be useless and the other expels Nonconformists as well as Papists, which is contrary to the Act of Toleration, I believe the Declaration meant was in the 30th not the 13th year of Charles II. Signed, Edw. Northey. Endorsed, Recd. June 15, Read Sept. 8, 1702. 2½ pp. [C.O. 152, 4. No. 103; and 153, 8. pp. 59–65.]
June 11.
591. Council of Trade and Plantations to the Earl of Nottingham. Enclosing draft of Commissions and Instructions for Sir Bevill Granville to be Governor of Barbados, which seems to require the most speedy dispatch. Signed, Robt. Cecill, Wm. Blathwayt, Mat. Prior. Annexed,
591. i. Draft of H.M. Commission to Sir Bevill Granville "to be Governor-in-Chief of Barbados, Sta. Lucia, Dominico, St. Vincent's, and the rest of our Islands, Colonies and Plantations in America commonly called by the name of our Charibee Islands, lying to the Windward of Guardaloupe." [Cf. Cal. 1699, No. 382, and 1702. No. 472.] [C.O. 29, 8. pp. 33–61.]
June 11. 592. Journal of Council of Trade and Plantations. Queries to be put to H.M. Attorney and Advocate General (see June 9) agreed upon, and shown to Col. Quary and Mr. Penn, who were ordered to have copies, if they desire. The said questions being of great importance to H.M. service in relation to trade in the Plantations, Col. Quary was directed to attend H.M. Attorney and Advocate General thereupon. Ordered that the Lord High Treasurer be moved for his order to the Solicitor of the Treasury to attend H.M. Attorney and Advocate General upon occasion of those questions.
Letter to Earl of Nottingham, with draught of Commission for Governor Sir Bevill Granville, signed and sent.
Col. Quary presented a Memorial desiring their Lordships' favourable Representation of his services. He was told it would be considered.
June 12. Copies of letters from Capt. Powel, etc., were communicated to the Board by Mr. Blathwayt.
Copy of the Report of the Committee of the House of Commons, May 5, upon Mr. Hodges' petition, was laid before the Board.
Letter to Col. Dudley signed.
Directions given for preparing a Representation upon the complaints against Capt. Hasket.
Directions given for preparing a Representation upon two Orders of Council, May 14, relating to Col. Hamilton. [C.O. 391, 15. pp. 82–85; and 391, 96. Nos. 103, 104.]
June 11. 593. Minutes of Council of the Massachusetts Bay. The Council receiving intelligence this morning by an express from Marblehead of H.E.'s arrival there yester evening in H.M.S. Centurion, and the ship being now in sight in her way from thence, a Committee was appointed to repair on board her, in the name of the Council to congratulate H.E.'s happy arrival, and to wait upon him to town. The ship anchoring about noon in Nantasket Road, H.E. and the Lieut.-Governor soon after left her, being saluted by H.M. Castle and the Forts and the shipping. They were attended by H.M. Council, the Representatives, Ministers, Justices, etc., with the troop of Guards and Regiment of Militia in arms from the water-side to the Council Chamber. Then in the Court Chamber H.M. Commission to Gov. Joseph Dudley was read. H.E. took the oaths appointed and repeated and subscribed the declaration, etc.
H.E. adjourned the Assembly till June 16, and a Proclamation was published continuing Justices of the Peace and Officers of the Militia in their respective trusts. [C.O. 5, 788. pp. 154–156.]
June 12. 594. Capt. Powell to Mons. Monic, Governor of Placentia. St. John's, Oct. 9, 1701. Proposing an exchange of deserters. [See Cal. 1701, Nos. 921, 938.] Signed, John Powell. 1 p. Annexed,
594. i. Governor Monic to Capt. Powell. A Plaisance, Nov. 5, 1701. I fear my King's censure, if I took upon me with such precipitation the exchange you propose, but if, putting aside past desertions, you wish to make a treaty for the future for the mutual restoration of deserters, I will willingly subscribe, etc. Signed, Monic. The whole endorsed, Recd. from Mr. Blathwayt, Recd. Read June 12, 1702. French. 1 p. [C.O. 194, 2, Nos. 80, 80.I.]
June 12.
595. Council of Trade and Plantations to Governor Dudley. We hope this will find you safely arrived in your Government, where we doubt not of your care in all things relating to her Majestie's service, or the good of the Province, especially with relation to its security, which becomes now the more necessary by reason her Majesty has declared war against France and Spain, as you will perceive by the letters already sent you. We have lately received a letter from Mr. Sheaf, a Custom House Officer in New Hampshire, whereof we send you here enclosed an extract, relating to the Records of that Province and to Fines. In the first point we think him in the right, that the Secretary is the proper officer in whose hands the Records ought to be lodged; and as to Fines, if the thing be as he writes, it is certainly a great abuse. We therefore recommend both those matters to the best of your care. Some time since Mr. Randolph laid before us a Memorial relating to a case wherein the said Sheaf thought himself agrieved, a copy whereof we send you here enclosed, and desire you to do therein as you find reasonable and consistent with the due course of Justice. We have been desired by Mr. William Wallis, a merchant, who has several times imported masts for the use of the Royal Navy, to take some care that Mr. Jahleel Brenton, the Surveyor of the Woods in New England, do allow Mr. Ichabod Plaisted, his Deputy, one half of the salary appointed to that service. This we proposed to Mr. Brenton when he was here, and he accordingly promised to do it. How the account may stand between them we do not know. But we send you here enclosed a copy of Mr. Wallis's Memorial, that you may interpose therein as you find necessary. And we more especially recommend to you upon this occasion that they may both be strictly required to be exact in the performance of their duty in that office, or in case of their neglect that you take such further care therein as you find reasonable and pursuant to the authority given you by your Commission and Instructions. We have very lately received another letter from Mr. Sheaf, and one from Mr. Partridge, Lt.-Governor of New Hampshire, both of them relating to a seizure of some enumerated commodities imported from the Massachusetts Bay, and without such security first given as required by law, a copy of which letters we send you here enclosed. But whereas it is thereby intimated that Mr. Sheaf has sent a more full account of that matter to the Commissioners of the Customs and to the Lords Commissioners of the Treasury (which is his right course of application), we refer you to such directions as you may receive from the Lord High Treasurer. The Acts of the Genll. Assembly of New Hampshire which we have at any time received are very confused, some so ill writt that they are scarce legible; and several others are not come. We want particularly one past in September last for raising 550l. for defraying the publick charge of the Province. We desire you, therefore (besides the particular Acts which you are required by your instructions to transmit from time to time under the Publick Seal), to send us one compleat and authentick collection of the Laws of that Province, that they may be fit for such inspectn. as shall be requisite. Signed, Robt. Cecill, Ph. Meadows, Wm. Blathwayt, Jon. Pollexfen, Mat. Prior. [C.O. 5, 910. pp. 216–219.]
June 13. 596. Sir John Cooke to the Council of Trade and Plantations. In reply to Queries of June 11. I could have given a fuller answer, if Mr. Penn's Patent had been laid before me, to see whether the Vice-Admiralty jurisdiction of Pennsilvania is thereby granted to him or not. But supposing it is, I make no doubt, but that the power of constituting a Judge, Register and Marshall of the said Vice-Admiralty is expressly reserved to the Crown, that being an usual reservation in such Patents. Accordingly I find that two Patents were granted by the late King in June, 1697, one to Robert Quarry to be Judge, the other to William Rodeney to be Register of the Vice-Admiralty of Pennsilvania; and I conceive Mr. Penn has no more a power of constituting a water-bailiff there, than a Judge or Register, for though he has in the Commission annexed given the officer a new name, yet it is plainly that of Marshall of the Admiralty, "to execute all writs, etc., on persons, ships or goods upon the water," which is beyond the limits and jurisdiction of the Civil Courts there.
I humbly conceive that the breaches of the Act of 7 and 8 William III mentioned ought, and are most properly to be determined in the Vice-Admiralty Courts of the Plantations, from whence an Appeal lies, by express provision in the Vice-Admiral Patents, to the High Court of Admiralty of England. Among many instances of such appeals, I particularly remember one lately brought and determined here, upon a sentence given in the Vice-Admiralty Court of Pensilvania, whereby the Providence and her lading was condemned there for not being registered as that Act directs and requires. And tho' sometimes the Civil Courts in the Plantations have proceeded in cases of the like nature, yet I conceive there is no manner of pretence for those Courts to draw causes from the cognizance of the Vice-Admiralty Courts, when once begun there. For supposing, tho' not granting, that the Courts have a concurrent jurisdiction and that either of them may, in some cases, proceed upon the breaches of the aforesaid Act, or of any other Acts relating to trade, yet when there is Preventio Fori, that is, when the Informer has made his election in wch. Court to prosecute, the other Court cannot impede or disturb the proceedings. Signed, J. Cooke. Endorsed, Recd. Read June 16, 1702. Holograph. 1½ pp. Enclosed,
596. i. Copy of last three Queries given above, June 11.
596. ii. Copy of Commission granted by William Penn, Absolute Proprietary in Chief of the Province of Pensylvania and Counties annexed, to Thomas Farmer, High Sheriff of the County of Philadelphia, constituting him "water-bayliff of this town and county of Philadelphia. I do hereby empower thee to execute all writs, attachments, summons, replevins and all other process whatsoever awarded and to thee directed upon any person or ships or goods whatsoever from any Court of Record within this County, upon the rivers and waters of Delaware, so far up and down the said river as the County of Philadelphia," etc. Philadelphia, the 20th day of the 4th month in the 12th year of William III, 1700. Signed, William Penn. 1¼ pp. [C.O. 5, 1261. Nos. 109, 109. i., ii.; and (without enclosures) 5, 1290. pp. 32–35.]
June 15. 597. Petition of Augustin Graham, Surveyor General of New York, to the Council of Trade and Plantations. Prays that his office, now determined by the death of King William, may be confirmed and renewed to him. Endorsed, Recd. Read June 15, 1702. 1 p. [C.O. 5, 1047. No. 54; and 5, 1119. pp. 143, 144.]
June 15.
598. John Usher to the Council of Trade and Plantations. I herewith present to your Lordships account of several disorders that has been acted in New Hampshire [1696, 1697]. I humbly conceive Hincks, Vaughan and Walderen, if not guilty of treason, yet guilty of misdemeanour. Partridge, now Lt.-Gov., besides being guilty of breach of the Act 7 and 8 King William and Mary, a great contempt and disobedience to orders from Whitehall, etc. My Lord Bellamont had orders to examine into the matter, but though I gave to him a charge against above said persons and tendered to prove the same, reasons best known to himself did wave the hearing thereof. I humbly offer that Col. Dudley with some others may have directions for inquiring into and taking of evidences. Signed, John Usher. Endorsed, Recd. June 16, Read July 1, 1702. Addressed. ¾ p. Enclosed,
598. i. Copy of Minutes of Council of New Hampshire with notes by John Usher relating to the disturbances in the government of that Province, 1697. (See Cal. A. and W. I. for that year.) Signed, John Usher. 2¼ pp.
598. ii. Copy of Minutes of Council of New Hampshire with John Usher's Remonstrance relating to the disturbances in the Government of that Province, 1694–1697. (See Cal. A. and W. I. for those years.) Signed, John Usher. 3½ pp.
598. iii. List of persons [? proposed by Mr. Usher] for examining evidences: Jos. Dudley, Governor; Samll. Allen, Proprietor; Capt. Tho. Povey, Major Jos. Smith, or any three. Charles Storey to prosecute; Sampson Sheafe, Clark. 1 p.
598. iv. Memorandum of Lord Bellomont's Instructions and Answer, and of Mr. Partridge's Answer to Mr. Usher's Complaints. 1 p. [C.O. 5, 862. Nos. 117, 117. i.–iv.]
June 15. 599. Journal of Council of Trade and Plantations. Ordered that Mr. Dummer be desired to dispatch the further account of his proposals.
The Lord Bishop of London proposed to the Board that the Act of New York, Oct. 26, 1700, entituled An Act for declaring the Town of East Chester a distinct parish from West Chester might be repealed, because the provision made for the Church by the former Act, which this annulls, is better than by this. His Lordship also acquainted the Board that an Act lately passed in the Leeward Islands, for the better and more certain support of Ministers, does interfere with his Jurisdiction in the Plantations, and promised to lay before the Board a particular paper of objections against it, and amendments fit to be made thereupon.
Mr. Augustine Graham presented a petition (above). Ordered that a letter be prepared to enclose a copy of it to the Lord Cornbury, that he may do therein as he finds best for H.M. service.
Mr. Penn and Col. Quary (both present) agreed to attend the Attorney General on Wednesday, in order to his answer to the queries lately sent him.
Ordered that a letter be prepared from the Board to the Commissioners of Customs, to acquaint them with the occasion of Col. Quary's stay here, and the prospect of his dispatch.