America and West Indies: December 1736, 6-10

Pages 366-376

Calendar of State Papers Colonial, America and West Indies: Volume 42, 1735-1736. Originally published by Her Majesty's Stationery Office, London, 1953.

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December 1736, 6-10

Dec. 7.
481. The Council of Trade and Plantations to the King. We have had under our consideration a Memorial from Wavel Smith and Savile Cust Esqrs., Secretary and Clerk of the Crown to all your Majesty's Leeward Charribbee Islands in America, complaining among other things of two Acts pass'd at St. Xtophers etc. ; Upon these Acts we have consulted Mr. Fane, one of your Majestys Counsel at Law, and having been attended by the Petitioners against the Acts, and by the Agent of St. Xtophers in behalf of them, and heard what they respectively had to offer for and against the same, we humbly take leave to represent to your Majesty That by your Majesty's 17th Instruction to the Govr. of the Leeward Islands he is particularly directed to take care, that no perpetual clause be made part of any temporary law, and by your Majesty's 34th Instruction the President of the Council, during the absence of the Commander in Chief, who is thereby impower'd to take upon him the administration of the Government, is nevertheless expressly forbid to pass any act unless it be immediately necessary for the peace and wellfare of the Islands, without your Majesty's particular order for that purpose. Altho' the first part of the Act for granting a duty on negroes and slaves might be immediately necessary for the service of the Island ; yet the other part for settling the officers' salaries was not so, and therefore should not have been pass'd by the President of the Council. Besides the latter part of it is perpetual, and inserted in a law which was enacted for a temporary service only and has no suspending clause inserted therein. We are therefore of opinion that this Act is a breach of your Majesty's 17th and 34th Instructions to your Governor, and for that reason, do humbly lay the same before your Majesty for your disallowance, from whence we cannot foresee that any inconvenience can arise to the Island, because the first part of this Act, for raising the mony must have had its effect. With regard to the other act for reducing the fee of three shill. p. sheet taken by the Secretary as Clerk in Chancery, we beg leave to observe to your Majesty, that as this Act is to make some alteration in the Act pass'd at St. Xtophers in 1715, by lessening the fee thereby given to the Secretary as Clerk in Chancery, the Govr. has followed the direction of his Instructions by inserting therein the clause for suspending its taking effect, till your Majesty's pleasure can be known upon it; and as this Act appears to have been pass'd to redress the grievances of the suitors in the Court of Chancery complain'd of by them, to the Legislature of the Island the fee granted by the former Act being much larger than what is paid in England, for the same service ; we see no reason, why your Majesty may not be graciously pleased to confirm the same. [C.O. 153, 16. ff. pp. 62–65].
Dec. 8. 482. Petition of Mr. Jackson to the Council of Trade and Plantations. As the Board mentioned authorising some persons to take depositions in support of his complaint (Oct. 7th), and as petitioner knows no inhabitant of the Bahamas will hazard his life or fortune by doing so during the administration of Governor Fitzwilliam and that some of the eye witnesses have removed from the said islands ; and as he apprehends his Deputy's accounts of Customs are detained by the Governor, in order to prevent petitioner's receipt of his salary and to conceal certain oppressive seizures made there by command of the said Governor, he prays the Board to the Commander in Chief and Council Carolina so as to incline some one of them to take depositions tendered by his witnesses etc. Prays. permission to lay before the Board, before his departure from England, copies of all the entries made in the port of London of goods laden on board the Faulkinbridge, 1733, as full proof of how injustly he was prosecuted by the Governor for refusing to admit entries or give cockets outwards for woollen goods clandestinely imported by the Governor, but pretended to have been shipped in London, though never entered or reported, but concealed by the commander, Clough, from petitioner. After petitioner's flight, the Governor did compel Clough to make affidavit that he had entered said goods and had a cocket for the same in the port of London, though by the book of Customs in the said port it does manifestly appear that no entry was ever made, or cocket given for such woollen goods etc. If these his prayers are granted, petitioner will take his passage for Carolina, with the prospect of returning to make good every article by him charged against the Governor. Prays that, in order to here the notorious falsehoods in Smith's affidavit (1st Nov.) etc., Mr. Thomas Seyton now in London may be ordered to attend the Board, to declare his knowledge concerning said affidavit, the illegal condemnation of twelve soldiers and a French sailor, and other arbitrary proceedings of the said Governor relating to petitioner. Signed, Chaloner Jackson. Endorsed, Recd. Read 8th Dec, 1736. 2½ pp. [C.O. 23, 3. ff. 216–217 v.].
Dec. 8.
483. Order of Committee of Privy Council. Referring to following to Council of Trade and Plantation for their opinion thereon. Signed, Temple Stanyan. Endorsed, Recd., Read 14th Dec., 1736. 1 p. Enclosed,
483. i. Petition and Representation of the Council and Assembly of S. Carolina to the King. July 17, 1736. We your Majesty's most dutiful and loyal subjects the Council and Assembly of your Majestys Province of South Carolina now met in General Assembly at Charles Town in all humility beg leave to approach your Sacred Person and to return our humblest thanks for the many instances of your Majesty's paternal care and goodness extended to us your Majesty's faithfull subjects and to repeat the assurance of our sincere and inviolable attachment to your Most Sacred Majesty's person and Government and that of your Majesty's illustrious House and at the same time humbly to implore the continuance of your Majesty's Royal favour and protection. Your Majesty's subjects the inhabitants of this Province with hearts full of gratitude being highly sensible of the many instances of your Princely care and concern for the safety and happiness of all your people think themselves under the greatest obligations to acknowledge the just sense they have of your Majty's. goodness in establishing the Colony of Georgia by your Royal Charter for the relief of many of your Majesty's poor and indigent subjects for the security and defence of the frontiers of your Majestys Dominions in North America and for the increasing and extending of the British commerce. In furtherance of which your Majty's. most gracious intentions the people of this Province excited by your Majty's. great example exerted their utmost ability in assisting of that new settlement with supplys of men and money and in performing all other offices of friendship and humanity in consideration whereof your Petrs. had the greatest reason to expect that the inhabitants of Georgia would on all occasions have testifyed their good disposition to have lived in friendship and to have preserved a good understanding with your Majty's. subjects in South Carolina. But it is with the greatest grief and concern that your Petrs. find themselves constrained from the repeated injurys received from the Magistrates and people of Georgia to make their conduct known to your Majty., a conduct which if pursued in all appearance will endanger not only the peace and tranquillity of your Majty's. subjects in this Province but also of other parts of North America. It is upwards of seventy years since our ancestors faithfull subjects of your Majty's. Royal Predecessors moved with a pious and laudable zeal for the propagating the Christian Faith and knowledge and enlarging the British Empire and Dominions (at their no small expence and hazard and without any burthen or charge to the Crown or Kingdom) undertook the planting a Colony of British Subjects in this Province in which through the blessing of Almighty God and the favour and indulgence of your Majesty and your Royal Predecessors and their industry, care and acconomy they formed an establishment from whence they have grown and become a people of no inconsiderable trade, commerce and as they humbly hope of some advantage to Great Britain not only in the consumption of their woollen and other manufactures but also in the extension of the British trade and Empire several hundred miles among the native Indians. We humbly pray leave to add that the security and welfare of this Province (next under God and the wisdom and goodness of your Majesty) hath been owing to nothing more than the regulations which from time to time have been established by the Legislative authority of this Province derived under the Crown of Great Britain with regard to the trade and commerce carryed on from hence with the several nations of Indians almost surrounding us. and that it is by these means alone that we have been able to preserve a general peace and friendship with them for upwards of these twenty years last past. That before the regulations took place your Majty's. subjects of this Province were under great difficultys to preserve at best but a precarious Peace and Friendship with the Indians and this alone has had the principal attention of the Legislature of this Province as they have ever found that to cultivate a harmony and good understanding with the Indians was a matter of the last consequence to the Province. To this end have all our Councils been directed and having at length by the experience of many years found it necessary we established these regulations which at present subsist for carrying on an open and free trade and commerce with those Indians as best conducive to preserve peace and friendship with them. We humbly beg leave further to represent to your Majesty that we had good reason to hope and expect that agreeable to your Majesty's Royal Intentions the settlement of the Colony of Georgia would have tended as well to the further security of your Majesty's subjects of this Province against the Indians as to the private advantage and emolument of that Colony by their acting in concert with your Majty's. subjects of this Province in all affairs with the Indians and this we judged the more reasonable, as we humbly conceived that from a love and carefull observation of events we might be supposed to be better acquainted with the native customs, dispositions and views of the Indians than your Majty's. subjects of that Colony from their short standing could possibly be ; at least we expected they would never act in such a manner as to exclude your Majty's. subjects of this Province from any commerce with the Indians nor offer to impose upon us such terms as would be too grievous a burthen to be borne and which would in effect amount to an exclusion not only from the trade but in consequence of it from all manner of correspondence with the Indians and of all means of treating or negotiating with them for the common safety. But instead of finding these reasonable expectations answered, a very different conduct is observed by the gentlemen who have the administration of affairs at Georgia which will effectually exclude your Majesty's subjects of this Province from any sort of commerce with the Indians tho' without such a commerce 'tis impossible to secure our interest amongst them or to provide for the safety of the Province. For we beg leave to acquaint your Majesty that the Magistrates or those who are in the exercise of power at Georgia assume an authority of obliging all persons whatever tho' residing in other Colonys to go thither to take out lycences to trade with the Indians and of threatning to imprison such of your Majesty's subjects of this Province and to seize and confiscate such of their goods as shall be found in the Indian Nations without lycence first obtained from Georgia notwithstanding such persons are or may be lycenced from this Province and have given bond here for the observation of all the necessary regulations which the laws of this Province require, which laws were previously made and are the same in substance with those the traders from Georgia are obliged to observe, contrary as we humbly conceive to your Majesty's gracious intentions and the rights and libertys of their fellow subjects. And the better to accomplish their designs they have sent an armed force into the Indian country to be employed against your Majesty's subjects of this Province, a proceeding which unless speedily prevented by your Majty's. most gracious interposition may be of the most fatal consequence and may give such umbrage to the Indians by nature jealous that this Province as well as Georgia may soon be involved in blood and confusion. Permit us, most gracious Sovereign, further to lay before your Majty. that in this your Province are near fifteen thousand souls of the white inhabitants subjects to your Majesty whose safety in a great measure depends on the well conducting and management of affairs with the Indians. But under colour of the Act past by the Trustees of Georgia for preserving peace and friendship with the Indians and which your Majesty has been pleased to confirm an authority has been assumed under the sanction of your Royal name and matters have been so ordered by the Magistrates and those who are in the exercise of power in Georgia that the lives and fortunes of many of your Majesty's good subjects will be endangered, than which we are assured nothing could be more distant from your Majesty's gracious intentions when you was pleased to confirm that Act, and we beg leave in all humility to say that we cannot conceive that the Act so confirmed by your Majesty can give any countenance to the people of Georgia to take upon themselves the sole management of Indian affairs for several of your Majesty's Colonys in North America. A task for which a people so lately settled in America and so little acquainted with the customs and manners of the Indians cannot reasonably be supposed to be equal and who have very lately given by the ill management and conduct of their agents and officers too flagrant proofs of their insufficiency in matters of so great importance to the peace and security of your Majesty's subjects. We doubt not that your Majesty in your great wisdom will consider that a rash or imprudent step taken in any one of your Majesty's Colonys with respect to the Indians may embarrass all the rest. The Indians possess the inland parts throughout the whole continent of North America and 'tis a known and avowed principle amongst them that an injury done by one man of any nation is to be avenged on the whole. From these considerations and from your Majesty's known justice and repeated assurances of preserving all your Majesty's subjects in the uninterrupted enjoyment of all their rights and privileges we are encouraged to think that the above mentioned law was only intended by your Majesty to regulate the persons who should trade with the Indians from your Majesty's Colony of Georgia, and was not designed to prohibit your Majesty's subjects of this Province from trading with the Creek, Cherokee and other nations of Indians in friendship with them without their being obliged to take licences from Georgia when they were before under the same regulations by the authority of the laws of this Province. And this we are further induced to believe as your most sacred Majesty was graciously pleased by the right honourable the Lords Commissrs. for Trade and Plantations to enter into a Treaty of Friendship and Commerce with the heads of the Cherokee Indians at London on the 7th day of December in the fourth years of your Majesty's most auspicious reign, and thereby to declare "That your Majesty had ordered your people and children the English in Carolina to trade with the Indians and to furnish them with all manner of goods they should want and to make hast to build houses from Charles Town towards the towns of the Cherokees behind the Great Mountains and that that Treaty of Peace and Friendship between the English and Cherokees should continue as long as the mountains or rivers should last or the sun should shine." And also from a Treaty of Friendship and commerce of the same import made and entered into by His Excellency Robert Johnson Esq., late Governor of this your Majesty's Province, soon after his arrival in this Province in the name of your most Sacred Majesty with the kings and head men of the Upper and Lower Nation of Creek Indians which treatys are as we humbly apprehend hitherto subsisting and in their full force and are so understood to be by those Indians. As the preserving the peace and friendship with the Indians towards all your Majesty's subjects and thereby an exclusion of all foreign Powers from any interest among them is, as it ever has been, ours, so it ought to be the principal aim and intention of all your Majesty's Provinces from which any trade is carried on among them. And as it was not necessary to the obtaining these good ends so it seems not to have been your Majty's Royal intentions that your subjects of one Colony should be laid under the very great hardship of travelling two, three or four hundred miles (for so much and more are some of your Majty's subjects who trade among the Indians distant from the town of Savannah in Georgia) to take out a licence and enter into obligations to observe the rules and regulations prescribed in another Province, when the same may be as effectually done and with much more ease to your Majesty's subjects in the respective Provinces from which the trade is negociated and for which with regard to this Province effectual care for many years past hath been taken and is by the Laws now in being enacted and passed by virtue of your Majesty's Royal authority. Your Majesty will be graciously pleased further to give us leave on the reiterated complaints of your Majesty's subjects of this Province to the Legislative Powers thereof humbly to lay before your Majesty the violent and as we humbly conceive unjustifiable proceedings of the Magistrates of Savannah in Georgia in infringing the natural rights and libertys of your Majesty's subjects of this Province by stoping their free and open navigation of the river Savannah and preventing their carrying their goods and merchandize up the same in to other parts of this Province, your Majesty hath indeed been graciously pleased by your Royal Charter for establishing the Colony of Georgia in America, "to give and grant to that Corporation and their successors (under the reservations, limitations and declarations therein after expressed) seven undivided parts the whole into eight equal parts to be divided of all those lands, countrys and territorys scituate lying and being in that part of South Carolina in America which lye from the most northern stream of a river there commonly called the Savannah all along the sea coast to the Southward unto the most Southern stream of a certain other great water or river called the Alatamaha and westward from the heads of the said rivers respectively in direct lines to the South Seas, and all that space circuit and precinct of land lying within the said boundarys with the islands in the sea lying opposite to the Eastern coast of the said lands within twenty leagues of the same which are not already inhabited or settled by any authority derived from the Crown of Great Britain. Together with all the soyles, grounds, havens, ports, gulphs and bays &c, rivers, waters, fishings etc. Jurisdictions, royaltys, franchises, privileges and preheminences within the said territorys and the precincts thereof and thereunto in any sort belonging or appertaining" : By which we humbly apprehend your Majesty's royal intention was that the river Savannah should be the natural boundary between the two Provinces without ever intending to debar your Majesty's subjects of this your ancient Colony from the free and open navigation thereof into all ports and places within this Province lying on the North side of the said river since your Majesty by your Royal Charter hath only been pleased to grant to the said Corporation the lands, territorys, rivers, ports etc. lying from the most northern stream of the river Savannah along the sea coast to the most southern stream of the river Alatamaha, which we humbly conceive does not amount to a grant of the sole navigation of the river Savannah to the said Corporation in exclusion of all other your Majesty's subjects or that it was ever intended by your Majesty, and more especially since the navigation of that river is so absolutely necessary to the well being of all the southern parts of this your Province and particularly to your Majesty's two townships of Savannah Old Town, and Purrysburgh laid out on the north side of the said river, in the first of which is a fort and garrison built upwards of twenty years ago near three hundred miles back from the said river's mouth and maintained at the sole expence and charge of the inhabitants of this Province for securing that part of your Majesty's Dominions and protecting the out settlements of this Province, and in which there are now living about one hundred inhabitants, and in the other namely Purysburgh reside upwards of one hundred familys of poor Swiss and other Protestants in settling and maintaining of whom pursuant to your Majesty's Instructions has been already expended by this Province upwards of thirty thousand pounds of this money. Notwithstanding which the said Magistrates and officers at Savannah in Georgia have assumed under colour and pretence of an Act of the Trustees for establishing the said Colony of Georgia intituled "An Act to prevent the importation of rum and brandys in the Province of Georgia and approved by your most excellent Majesty in Council a power of staving and destroying all rum found in boats and pettyaugers passing on the said river to the other parts of this Province, and under pretence of search for such rum stop and detain the said boats and pettyaugers when in truth such boats and pettyaugers to which such violence has been used were not bound for Georgia nor was the said rum intended to be imported into the same, but was bound up the said river with other goods and merchandizes to the said Savannah Old Town and Fort Moore, and had the Lieut. Governor's lycence and permit for that purpose for the use of your Majesty's garrison and other inhabitants within this Province, and that it was known and acknowledged by the said Magistrates that the said boats and pettyaugers were bound into this Province, yet nevertheless the said Magistrates regardless of their duty to your Majesty the obligations they were under to this Province and the natural rights and privileges of their fellow subjects with force compelled several boats belonging to the inhabitants of this Province passing up the said river to your Majesty's forts and towns within this Province about their lawfull employmts. to stop and bring to at the said town of Savanah in Georgia and there under pretence that such boats and rum were found in the waters of Georgia stave and destroy the said rum and compell the masters of the said boats to enter into security to appear at their next Court altho' the river on which the said boats were seized is the only water passage to the said Savannah garrison and the town of Purrysburgh, and is one of the boundarys of Georgia and consequently not within the precincts or limits of Georgia. To the very great injury, loss and damage of your Majesty's said subjects of this Province and in manifest violation of their rights and privileges in breach of the laws of their country as well of those of nature and nations. And for which, notwithstanding repeated applications have been made by this Government to the magistrates in Georgia, no reparation has been had or obtained, from whence we have been necessitated humbly to represent these proceedings to your Majesty for relief and redress therein. And for preserving and maintaining the Indians in your Majesty's interest, we further humbly beg leave to represent to your Most Sacred Majesty that altho' your Majesty in your royal wisdom has been pleased to confirm a law of the Trustees of Georgia to prohibit the importation and use of rum and brandys in the said Province of Georgia, yet we are not apprehensive it was your Majesty's intention that the moderate use of rum should be inhibited your Majesty's subjects in this your Majesty's Province of South Carolina or among any nations of free Indians with whom we carry on any trade or commerce, since such a general inhibition would tend to the great prejudice of your Majty's subjects of this Province as a moderate use thereof we have found by many years experience to be of great advantage to the healths of your Majesty's subjects and should your Majesty's subjects of this Province trading with the said Indians be forbid to carry any rum among these Indians, much the greater number of whom are desirous to have spirits brought among them, we humbly take leave to acquaint your Majesty that we apprehend it would put the Indians upon seeking it from the French and Spaniard who can very easily supply them with the same, than which nothing would prove more effectual to carry those nations of Indians with whom we now trade into the French or Spanish interest. And this we can with the greater certainty lay before your Majesty as this Province did several years ago by an Act of Assembly then passed prohibit the use of rum among the Indians. But after some years trial it was found expedient to let that law expire which hath never since been revived lest it should give the French and Spaniards an opportunity to supply them with the liquor we had prohibited and so much desired by them. Thus, may it please your Majesty, we have presumed in all humility to represent the State and grievances of this your Majesty's Province with regard to the Colony of Georgia humbly to implore redress therein. Beseeching your most sacred Majesty that you will be graciously pleased to declare the rights and libertys of your faithfull subjects of this your Province to an open and free trade with all the nations of Indians in amity and friendship with your Majesty's subjects according to the regulations for the same by the laws of this Province without being subjected to the laws or regulations of Georgia. And that the passage of the river Savanah may be declared to be free and open to all your Majestys subjects of this Province and that the magistrates of Savanah in Georgia may be ordered to make reparation to your Majesty's subjects of this Province for the injurys they have done in seizing and destroying their goods, and that your Majesty will be graciously pleased to give such orders and directions to the Trustees for establishing the Colony of Georgia that violences of the like sort may not be committed for the future or take such other measure as to your Majesty in your great wisdom shall seem meet. Signed by Order of the [Council] Board, Wm. Bult. Signed, by order of the House of Assembly, Paul Jenys, Speaker. Copy. 15 pp. [C.O. 5, 365. ff. 153, 154–161, 162 v.].
Dec. 10.
484. Mr. Popple to Lt. Governor Broughton. The Trustees for establishing the Colony of Georgia in your Province have represented that endeavours were using to obtain from you grants of land, in that part of South Carolina, which lies between the Alatamaha river, and the northern bounds of the Spanish Florida: and as they are apprehensive that any grants made within that district might endanger the Peace, both of South Carolina and Georgia, they have pray'd H.M. that you may be instructed to make no grants therein. As my Lords Commissioners have never before now been apprized of any applications for land in this part of your Province, I am commanded to desire that you will inform their Lordships with all convenient speed, whether any applications have been made to you, for the purposes aforesaid; and to acquaint you, that, as their Lordships have laid before the Lords of the Council an Instruction proposed to be sent to you upon this head, it will be convenient, that you should for the present, refrain from granting any land within the district aforesaid. My Lords have received your letters of the 6th and 16th of August etc. My Lords have sent an extract of what you have wrote concerning the French Governor of Moville to his grace the Duke of Newcastle, and will shortly consider more at large what you have represented to them in relation to the inhabitants of Georgia. There having been some complaints laid before my Lords Commissioners by Mr. Jackson, Collector of the Customs at the Bahamas, against Mr. Fitz-William, the Governor of those Islands, and several of the material evidences having as he inform'd the Board retired to South Carolina, Mr. Jackson has desired that their depositions may be taken upon oath before you : I am therefore commanded to desire, that such persons as Mr. Jackson (the bearer hereof) shall bring before you, for the purpose aforesaid, may be examined upon oath, and that you will return to my Lords Commissrs. any depositions that shall in this manner be made under the seal of your Province. [C.O. 5, 401. pp. 193–196].
Dec. 10.
485. Mr. Popple to Mr. Fane. My Lords Commissioners have considered your report upon the Barbados act concerning the surveying of land; and have heard Mr. Edlington, the Surveyor General as well as the Agents of Barbados; But some doubts having arose, concerning the validity of the Surveyor's commission, it not being under the Seal of the Island; I am commanded to acquaint you, with my Lords' desire of speaking with you upon that subject on Tuesday morning next at eleven a clock. [C.O. 29, 16. p. 56].