America and West Indies: November 1702, 16-20

Pages 729-738

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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November 1702

Nov. 16. 1161. Benjamin Way to the Council of Trade and Plantations, on behalf of James Banister, of Jamaica. Prays that he be reinstated in the Council of Jamaica. Memorandum inscribed [? by Mr. Popple]:—Capt. Bannister was left out of the Council not being able to attend that business or to stir abroad by reason he has been long afflicted with the gout. Endorsed, Recd. Nov. 16, Read Dec. 10, 1702. 1 p. [C.O. 137, 5. No. 88.]
Nov. 16.
1162. John Usher to the Council of Trade and Plantations. In obedience to your Lordships' commands, Aug. 12, I gave in a Memorial as to Government of New Hampshire for William Vaughan to answer. Vaughan having put in an answer, doe humbly offer:—As to the disorders, implicit acknowledgment, but for excuse, it was occasioned by myself. I am ready to prove the fact charged and vindicate myself. As to my Lord Bellamont's having orders to hear the charge, I gave the charge in writing to my Lord and was ready to prove it, but nothing more I heard of it. It's true they presented my Lords with 500l. For the charge against Wm. Partridge; answered, the charge is frivolous; if entering on the Government without being qualified as the Act of Wm. 7 and 8 requires, be a matter frivolous, leave to your Lordships' consideration. Those in the present Government, such as are for promoting and countenancing the illegal Acts of Trade etc. The charges above and those in the information, I am ready to prove; desire for H.M. service a day may be appointed for Wm. Vaughan to appear at your Lordships' board and answer to the same, when and where I shall readily attend. Signed, John Usher. Endorsed, Recd. Read Dec. 9, 1702. Addressed. Holograph. 1 p. [C.O. 5, 862. No. 136.]
Nov. 16.
1163. Sir Bartholomew Gracedieu to William Popple. I forgot to add [Nov. 14] that Capt. Hudson is one of the Gentlemen that pays H.M. money to her Forces in Jamaica, by which he is very serviceable. Signed, Bartho. Gracedieu. ½ p. [C.O. 137, 5. No. 87.]
[Nov. 16.] 1164. Everard Cater to the Council of Trade and Plantations. A Memorial offered on the two Petitions referred to the Board, July 9, concerning Appeals from Barbadoes. The liberty of Appeal was not restrained in Barbados till 1680, and then 100l. was the sum limited. In 1689 the sum to be appealed for was raised to 500l. Most of the suits in that Island concern trade and traffic and are of a less value than 500l., so that the much greater part of the people are debarred from relief by H.M. against any wrong. By Magna Carta it is promised that Justice shall not be denied to any, but by this Instruction it seems to be denied to all that are not rich enough to have suits of 500l. value. Writs of Error, which are Appeals at Common Law, are allowed from the greatest and most learned Judges of the Law for very small sums; it has been the wisdom of all good Governments to allow Appeals, to keep Inferior Courts in awe, and to rectify any mistakes they may commit. It cannot be supposed there is less need of this in Barbados. The much greater number of judgments given in that Island, on which Appeals were brought, have been reversed in England, which plainly shews that it is possible for them to mistake in a point of Law, and it would be very severe if such a mistake must be final, tho' a whole family may be ruined by it. If more Appeals have not been from thence, it may be because they were restrained by the said Instructions. The Lords of the Privy Council who made the Report had sat on many Plantation Appeals, and were thereby much better able to judge of the necessity there was to allow them. The effects the said Instruction may have on the Acts for Trade and Navigation deserve to be considered. The appointing of any certain sum under which Appeals may not be allowed would produce many greater inconveniences than are intended to be prevented by it. If a Bill be exhibited in Barbados to discover an estate or a trust, or or fa house, land, or other thing, the certain value of which is not known, and a plea or demurrer should be put in and either allowed or overruled, and the person aggrieved appeal, it may often be almost impossible to know whether such case be within the Instruction. This may occasion many tedious complaints in England, where Appeals may be denied in such cases, to which the person complained of must answer, tho' there be no security given to reimburse their costs, or any other means for them to recover it. After a year's time perhaps spent on such complaint, they may obtain leave to come over again to England with an Appeal. Such Complaints are more tedious, vexatious, and chargeable than Appeals in form. A certain settled and sufficient damage on all frivolous and ill-grounded Appeals (besides costs) would prevent all such inconveniences, and effectually discourage all vexatious Appeals, and yet give every person that may be really oppressed an opportunity of being relieved by H.M. on an Appeal. If the damages are sufficient, poor men will not lose, but get very well by being brought over wrongfully on an Appeal, and will have reason rather to wish for than to fear it. No execution being stayed in the Island on an Appeal, is a great discouragement to vexatious Appeals.
The limitation of 14 days to Appeal in is an unnecessary deviation from the Law of England, by which writs of error, which are Appeals at Common Law, are not limited to any time. If it should be thought reasonable to limit the time in the Plantations, yet that time is too short. In many cases it is impossible to appeal in that time. A man may die in that time without a will and administration may not be granted within 14 days, and consequently no person will be intituled to demand an Appeal. A will may be made, and the Executor may not be in the Island, or may take time to enquire into the estate of the deceased, and consider whether he will undertake the trust. By the Law of the Island, a suit may be originally commenced [against] a person absent in England or elsewhere, by a summons left on his land, or at his last dwelling house, and judgment final may be given on it, if he do not appear to plead in a certain time, against which he can have no remedy, unless an Appeal were demanded in 14 days, which is impossible. Remedy has been denied in England in cases where appeals were not demanded in due time. An absent person may leave an Attorney to manage a suit for him, but if such Attorney die, no person will be intituled to demand an Appeal in the 14 days. This exposes many persons, especially such as are in England, to great and unnecessary perils in their estates and interests, and many persons of the greatest interest there do usually reside here. The Instruction directs Appeals to be made within 14 days after sentence pronounced, whereas it is frequently impossible to know what a judgment or decree is, till the first be entered of Record, and the last signed and inroled, and it frequently happens that this is not done in 14 days. In England Writs of Error and Appeals are not brought till judgments be entered and decrees signed and inrolled.
In 1684 the first Instruction was given that security should be taken on an Appeal, as well to answer the condemnation as the damages and costs. Which security to answer the condemnation seems to be a great hardship, when the person that gives it stays no execution thereby, so that at the same time his body, lands and goods may be taken over and above such security. The charge of Appeals in all cases being very near the same, a certain sum might be appointed for which security might be given on all Appeals, as it is in the House of Lords at this time. One part of the Instruction concerning Appeals from the Inferior Courts to the Superior Court of that Island appointing that such Appeals should not be for less than 300l., is, by the confession of those who oppose Petitioners, not consistent with the Law of that Island, and for that reason is not practised there. Signed, Everard Cater, Agent to the Petitioners. Endorsed, Recd. Read Nov. 16, 1702. 2 closely written pp. [C.O. 28, 6. No. 88.]
Nov. 16.
1165. Journal of Council of Trade and Plantations. Ordered that copies be taken of the Newfoundland muster-rolls, and the originals sent to the Commissary General.
A Memorial from Mr. Everard Cater laid before the Board. Hearing ordered on Saturday, and that Cater be required to give the names of the Petitioners for whom he acts, and that Mr. Bridges have notice to give in an answer to the said Memorial in writing, besides what he may otherwise think fit to offer upon that subject.
Ordered that the Secretary write to Mr. Burchet to desire that when Capt. Leake, Commodore of the last Newfoundland Squadron comes to town, he may call upon this Board, to give their Lordships information in what relates to H.M. service in those parts.
Ordered that the duplicates of the letters lately writ to the Plantations be sent to the Post Master of Deal, to be forwarded by him as opportunitys offer.
Report to the House of Lords, upon the Order of 7th inst., considered.
Nov. 17. Above Report further considered.
Nov. 18. Letter from the Earl of Nottingham, Nov. 17, read.
Report to the House of Lords relating to the state of the Trade of this Kingdom since the last session of Parliament, signed, and sent to the Earl of Nottingham to be laid before H.M. for her pleasure upon it. [C.O. 391, 15. pp. 273–277; and 391, 16. Nos. 182–184.]
Nov. 16. 1166. Journal of House of Representatives of New York. H.E. adjourned the House till Tuesday.
Nov. 17. Bill to enable the City of New York to raise 50l. etc. for an English Free School, read a second time and committed.
Message from H.E. read and referred to the Committee on the Militia Bill. This Bill was read and amendments agreed to.
Nov. 18. Committee on the Bill for declaring the illegality of the imprisonment etc. of Bayard and Hutchins etc. reported that they had made some progress and sent for some persons to attend them; that Jacobus Vander Spiegel, Arien Hooglandt, Leendert Huygen and Coenraet Ten Eck had appeared, but behaved themselves with much insolency and ill manners; that Martin Clock had attended in the Lobby, but departed without leave, so that the Committee could have no satisfactory account from them. It was resolved that Vander Spiegel, Hooglandt and Clock were guilty of contempt of this House, but not Huygen and Tyn Eck. Ordered that the two latter attend the Committee on Friday, and the three former be taken into custody. [C.O. 5, 1185. pp. 14, 15.]
Nov. 17.
1167. William Popple to Sir Robert Cotton, Sir Tho. Frankland, Post Master General. The enclosed packets for the Post Master of Deal, and containing duplicates of the letters sent you the 14th inst. to be forwarded by him, with the first opportunities to the Plantations; they [the Council of Trade and Plantations] desire you would order the charge thereof, as of other letters, to be placed to the account of postage for this office, and that this packett be carefully sent forwards as directed. [C.O. 324, 8. p. 191.]
Nov. 17.
1168. William Popple to Bevis Hill, Postmaster at Deal. The Council of Trade and Plantations observing by one of your late lists, that there are several ships bound for the Plantations now in the Downs, desire your care in sending forwards the enclosed packets, taking receipts and giving me an account thereof. [C.O. 324, 8. p. 190.]
Nov. 17.
1169. Earl of Nottingham to the Council of Trade and Plantations. The Queen commands me to acquaint you that shee has appointed the Earl of Peterborow to be Governor of Jamaica, that in case you shall think it necessary to make any additional Instructions to what you have already presented in Council, you may lay the same before H.M. Signed, Nottingham. Memorandum inscribed: The Earl of Peterborow did not go. Endorsed, Recd. Read Nov. 18, 1702. 1 p. [C.O. 137, 5. No. 90; and 138, 10. p. 369.]
Nov. 17.
St. Swithin's
1170. Gilbert Heathcote to the Council of Trade and Plantations. Recommending Edmund Edlyn for the Council of Jamaica. He is a considerable Planter, a man of good sense, a good fortune and sober. Signed, Gilbert Heathcote. Endorsed, Recd. Nov. 16, Read Dec. 10, 1702. ¾ p. [C.O. 137, 5. No. 89.]
Nov. 18. 1171. Council of Trade and Plantations to the House of Lords. Representation upon the State of Trade, in reply to Order of Nov. 7. q.v. A summary of matters relating to the Plantations as Calendared, and other matters. The Report is set out in House of Lords MSS., New Series, Vol. v. No. 1829. [C.O. 389, 18. pp. 3–24.]
Nov. 18.
1172. Minutes of Council of the Massachusetts Bay. A certificate being produced of the approbation of the major part of the Justices and the Selectmen of Boston, that Samuel Barret of said place be permitted to erect a building 15ft. x 12ft. x 21ft. in addition to the front end of his dwelling house, now standing between the dwelling-house of Bartholomew Cheever, deed., and the Creek next to the Mill Bridge in Boston, said building to be of timber, with a flat roof, and to cripple over part of the said old house now standing, licence granted accordingly.
Nov. 19. Nathaniel Thomas and John Appleton were appointed of the Committee upon the accompts of John Usher, heretofore Treasurer of the Territory of New England, in the room of Peter Sergeant and John Walley.
H.E. nominated Samuel Lynde to be a Justice of the Peace, and Isaac Addington Judge of Probate, and Paul Dudley Register of Wills, within the County of Suffolk. The Council assented.
H.E. acquainted the Council that he intended very speedily to go to Piscataqua and the Eastern Parts of this Province to speak again with the Indians, to endeavour to continue them in peace, and proposed that some of the Gentlemen of the Council would accompany him. [C.O. 5, 789. pp. 469, 470.]
Nov. 19.
1173. William Popple to Mr. Wharton. The Lords Commissioners for Trade and Plantations have perused the petition of Sir Mathew Dudley etc. and expect a draught of the Charter desired to be laid before them. [C.O. 5, 910. p. 301.]
[Nov. 19.] 1174. Governor Blakiston to the Commissioners to the Lord High Admiral. The Rt. Hon. the Lords Commissioners of the Admiral were pleased to ask me of what use the small man-of-war was of that attended the Government of Maryland. I acquainted their Lordships that the Commissioners of H.M. Customs had formerly applied for a vessel to be there to protect the Acts of Trade and Navigation, which had been much violated in those parts, and that I did conceive it very necessary that some vessel should be there in order to the security of those Acts; but I am humbly of opinion a way might be conserted to save H.M. at least 1,500l. per annum, and with as much security to that Trade. The Eagle, that is now there attending, is allowed by the establishment 50 men, which is a charge above 2,000l. per annum. I propose that a sloop be either built or brought in that Province, and may be fitted with all necessaries for 250l. at most; that the Commander be a person understanding in the Acts of Trade; that the vessel be manned with only 6 or 7 men and the Commander, which will come within 300l. per annum. A sloop will be of more use than a man-of-war by reason she is small, and can run into any of those creeks and coves where sculking traders have frequented. A man-of-war must be laid up in the Fretches from the beginning of June till the latter end of Sept., by reason of the severe biting of the worm; a sloop, by careening her once or twice in that season will secure her, and that is easily done for a charge of 4l. or 5l. A man-of-war, if often careened, may do the same, but then the charge is much more, and no conveniences are to be had there; and if the worm should enter the bottom of a man-of-war, she is of much greater value to H.M. to repair her, besides the risque she runs, if eaten by the worm in coming home in being sunk; which I doubt was the fate of the last vessel that attended there, H.M. advice-boat, Messenger, Capt. Peter Coode, who was lost in coming from Maryland, and never heard of. This sloop may have on board her 3 or 4 guns, which may be had in that Government, belonging to H.M. It may be objected that a sloop of so few men may not be of force to reduce those that should make any resistance; but the Master and the vessel being H.M.'s, and having H.M.'s colours will be sufficient authority to deter any from making any opposition; but if any vessel should make any resistance, there is always a man-of-war lying in Virginia, which will be aiding, for such a vessel must return the way she came, through the Capes, and so be intercepted. The monthly pay of the Master need not be more than is usually given there, which I take to be about three or four pounds per month at most: being he will be intituled to a third part of goods or vessels that shall be made prize of. Signed, N. Blakiston. Endorsed, Recd. Read Nov. 19, 1702. 2½ pp. [C.O. 5, 725. No. 64; and 5, 726. pp. 137–139.]
Nov. 19.
1175. Journal of Council of Trade and Plantations. Order of Council, Aug. 6, upon the petition of Sir Mathew Dudley etc. Ordered that they lay before their Lordships a draught of such a Charter as they desire.
Report upon Col. Dudley's letter, Sept. 17, relating to Rhode Island, considered.
Nov. 20. Draught of above Report agreed upon.
Nov. 21. Order of Council, Nov. 11, approving Col. Hamilton, read. Secretary thereupon ordered to write to Mr. Penn that their Lordships observing he lyes under several previous obligations, to desire him to comply therewith, that they may proceed to a speedy dispatch of what is to be done by them upon the said order.
An Act of St. Xtopher's, June 18, 1701, for the settling and strengthening the English part of that Island, was laid before the Board, and Mr. Attorney General's Report upon it, read. Some progress made in considering the said Act, and their Lordships resolved to go through with it at their next meeting.
Letter from Mr. Cater (Nov. 20) read. He, with Mr. Hodges and Mr. Hawkins attending in behalf of the Petitioners relating to appeals in Barbadoes, and Mr. Bridges, Agent of Barbadoes, with Sir Thomas Powys and Mr. Dodd, attending on the other side, the Order of Council, July 9 etc. read. The Council for Petitioners referring themselves to their Memorials, Sir T. Powys observed that there had been two petitions about this matter, the first of which was only signed by three persons, one of whom was Mr. Hawkins, and the second but by 15, some whereof were not concerned in trade to that Island, nor had any interest there (which was not denied by the other side) and he said it was strange that if the Island had received any prejudice by the Instruction in question, there should not have come some complaints against it directly from thence; he said the Appeals from the Inferior Court in that Island to the Governor and Council, tho' limited by the Instruction to 300l., yet in the practice of those Courts are allowed for any sum whatsoever (which the complainants also allowed to be true), so that no man is prejudiced by that Instruction. As to the limitation of Appeals from thence to England, to 500l., and the security to be given for costs etc., he said there are none of the Plantations but have some regulations of this kind, and that it is reasonable sufficient security should be given, because the charges of appeals brought hither, cannot but be very high; as for the limitation of time to fourteen days, wherein Appeals are to be made, he supposed there is no necessity of drawing up such appeals in form within that time, but only that the party do declare that he will appoint (as is the practice here in all civil cases) after which the Appeal might be prepared in form at more leisure. And he observed that the inconveniences pretended by the Memorial to be consequences of that limitation, are all in imaginary cases, not likely to happen; but that it would be much more inconvenient, if the party obtaining a sentence in his favour in any suit there, should be left six months or any considerable time in suspense, whether his right will be controverted or not. He concluded that before any alteration be made in the Instruction, it seems altogether fit that the Governor and Council and other principal Planters and Merchants in Barbadoes, should be required to report their opinion, whether any considerable inconvenience has followed upon the Instruction as it now stands, and whether they judge it may be for the good of the Island to alter it. Mr. Dod further opened and explained the same heads. The petitioners, he said, were not inhabitants of the Island, and some of them had the [? no] interest there, nor were concerned so much as in the Trade. The allowing Appeals from the Governor and Council to England without limitation, he said, was the most fatal and pernicious thing that could be done to poor men, or those of small estates, because they are not able, when they have gained their causes there (tho' they be never so just) to be at the charge of coming over hither and defending themselves upon the Appeals that may be brought against them by the rich; the limitation of time also for Appeals, he said, was most expedient, and shewed the inconvenience that would follow if an inhabitant of any other remote Plantation gaining a cause there, should be kept any considerable time in suspense, whether an Appeal would be brought against him or no. And he concluded that no alteration be made till some account be received from the Island of their sense of the matter. Mr. Hodges afterwards observed that the order of reference to this Board is not whether any alteration shall be made in the Instructions or no, but for what lesser sums it shall be made, and for what longer time than now directed. He repeated other things that he had formerly offered, and added that it is not important to consider who the petitioners are, but said that some of them have good estates in the Island. Mr. Hawkins argued that there is no limitation of sums here for writs of error, and that tho' Appeals there may not strictly fall under the same consideration as writs of error, yet that the limitation of appeals to the sum of 500l. is too high. He said also that there may be many cases relating to freehold estates, wherein the value of the estate cannot be known, and so neither can it be determined whether Appeals in those cases are within the limitation of the Instruction or not. As to the time of appealing, he said that there ought at least to be some distinctions, according to the circumstances of parties and provisoes for saving the right of persons absent, infants, lunaticks, femme couverts etc.; as for security for costs he proposed that the sum should be ascertained, and not left to the arbitrary pleasure of a Governor. To all which Sir T. Powys and Mr. Dodd made brief replies, to the same effect as they had before offered, and insisted that the sentence [of] the inhabitants of the Island may be known before any determination be made. [C.O. 391, 15. pp. 277–286; and 391, 96. Nos. 185–187.]
Nov. 19. 1176. Journal of House of Representatives of New York, Act for settling the Militia read a third time passed and sent up.
Bill, for encouragement of an English School in the City of New York, was read with amendments, and ordered to be engrossed. Read a third time and sent up.
A Bill for repealing several Acts of Assembly and declaring other Ordinances publisht as Acts of Assembly to be void, was read the first and second times, and committed.
Jacobus Collet attending, was ordered to attend the Committee to-morrow.
A Bill for the better support and maintenance of the Poor in the City of New York was read the first and second times and ordered to be engrossed.
Nov. 20. Amendments to the Bill for repealing several Acts of Assembly etc. read and agreed to.
Bill for the better support of the poor etc. read a third time and sent up.
Bill, to enable the Mayor, Aldermen and Commonalty of the City of New York for the time being to raise money upon the Freeholders and Inhabitants thereof for defraying the public and necessary charges annually, read the first time.
Petition of John Bibon read and referred to a Committee.
Bill for continuing the Act for encouraging a Post Office for 4½ years from April, 1700, was read the first time.
Bill for granting unto H.M. 2,000l. was read the first time.
Petition of William Bradford, complaining of the smallness of his salary, read and ordered to lie upon the table.
Nov. 21. Bill for repealing Acts of Assembly, read the third time and sent up.
Committee upon John Bibon's petition reported that several houses near the stockadoes of Albany were ordered by Commissioners appointed by Capt. Leysler to be pulled down, among which they believe petitioner's house may be one, but know not what became of the materials of any of those houses, and desired time to enquire further. The House agreed.
Bill, for granting H.M. 2,000l. for the uses mentioned, read a second time.
Bill for encouraging a Post Office read the second time and committed.
Bill to enable the Mayor etc. of New York to raise money etc. was read the second time, and committed.
Bill to enable the City of New York to supply the vacancy of such elective Magistrates and other public officers as may die, remove or otherwise be incapacitated to serve before the time of the annual election was read the first and second time and ordered to be engrossed. [C.O. 5, 1185. pp. 15, 16.]
Nov. 20.
1177. Copy of the Privy Seal for the Establishment of the Commission of Trade. Countersigned, Geo. Piers. Endorsed, Recd. Nov. 21, 1702. 3 pp. [C.O. 388, 75. No. 64; and 389, 36. pp. 153–157.]
Nov. 20.
1178. John Farmer to [ ? the Earl of Nottingham]. I am honor'd with your Lordship's letter of Sept. 3, with the print therein inclosed relating to the better correspondence between England and H.M. West India Plantations, and shall take all possible care to dispatch the vessels within the time appointed, and upon extraordinary occasions shall take all due care to follow your Lordship's orders in your other letter of the former date, relating to the immediate dispatching away of expresses. I have also received your Lordship's Letter of Oct. 7, and am very heartily concerned for the ill success our Fleets met with at Cadiz; I hope they will meet with better in the West Indies. And I do assure your Lordship, as it is my duty, so shall it be my constant endeavours, to give all the assistance to that expedition that's possible, and shall take the best care I can that no intelligence thereof be carried to any of H.M. enemies. Signed, John Farmer, Presdt. Endorsed, R. Feb. 6, 1702/3. 2 pp. [C.O. 28, 38. No. 6.]
Nov. 20. 1179. Mr. Cater to Mr. Popple "att his Office att ye Cockpitt by Whitehall." I am concerned as Agent for the Petitioners who signed the several petitions relating to the Appeals from Barbadoes. The Memorial [Nov. 16] was drawn by the advice of their Counsell etc. Signed, Everard Cater. Endorsed, Recd. Read Nov. 21, 1702. Addressed. ½ p. [C.O. 28, 6. No. 89.]