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Proposal to the Board of Trade of Great Britain concerning the government of the American Colonies, including a cover letter from James Stanhope
No Author
October 18, 1714
Volume 02, Pages 154-166

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[B. P. R. O. B. T. Plant. Gen. Vol. 9. K. 38.]
Mr SECRETARY STANHOPE TO THE COUNCIL OF TRADE.


Whitehall 23. Febry 171⅘

My Lords & Gentlemen.

I an commanded to transmit to you the enclosed Scheme relating to his Majesty's Plantations in America, and to signifie to you his Majesty's Pleasure, that you take the same into your consideration, & how far what is laid down in it may contribute to the Improvement of the said Plantations, & report your Opinion thereof. I am.

My Lds & gentlemen
yr most humble and
most obedient servant
JAMES STANHOPE.

OF THE AMERICAN PLANTATIONS.

The Brittish Plantations in America were but thin of people till the persecution of Dissenters in the Reign of King Charles the first, by which, and the Civil Wars, great numbers were forced to settle there.

When the Plantations had but few Inhabitants, Justice in Criminal Cases was administered by Marshal Law, and Cases Civil in a sum̄ary way.

On the increase of people and propriety amongst them, it was found necessary to establish a better method for their Government and the administration of Justice. To this end power was given by Letters Patents to divide each Colony into districts with Liberty to the Inhabitants to elect Members to represent them in a General Assembly (in the nature of a house of Commons) to consent to the passing of Laws, and the raising of money for the publick uses. And a Council of the Inhabitants was likewise appointed to assist the Governor (the number of which was usually twelve) and all Laws were to pass by the concurrence of the Majoritys of the said Councill and Assembly, with the consent of the Governor. They had power likewise to erect such and so many Courts of Justice amongst them as they thought fit.

Pursuant to such powers many and different Courts were established in the several Colonys. Which being erected by Persons not knowing

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the methods of administering Justice, and filled with Judges made of the Merchants Planters and others in Trade and Com̄erce, and not learned in the Law, Justice could not be so well administered by such persons as if they had been more knowing, and less interested. And such persons only are hitherto made Judges in the Plantations.

Courts thus erected and filled with such persons, tho' at first it might be necessary, has in process of time produced many gross errors partialitys and delays in the administration of justice.

Many persons have withdrawn themselves, their Estates and great stocks out of the Plantation Trade to prevent the wrongs which they or their posteritys might suffer for want of justice. Which Stocks if continued would have much encreased, if not doubled the Plantation Trade.

During the Reign of King Charles the second Little was done to amend the administration of Justice in the Plantations or for the Improvement and encrease of them, except some Acts of Parliament then passed to retain the benefit of them from forreign Nations.

In the Reign of King William of Glorious Memory, a Council for Trade and Plantations was erected with very good Power and Instructions which if they had bin well executed might have produced much good.

ADVANTAGE BY THE PLANTATION TRADE

It appears by the Inspector Generals abstract that the Importations from the Plantations have bin one year with another about a Million Sterling per Ann: And the Exportations from England to the Plantations about Seven or Eight hundred thousand pounds.

The said abstract shews that in the year begining at Christmass 1700. (about which time the Council of Trade was erected, the imports from the Plantations were 1,226,701, and the exports to them 682,414, making together 1,999,115. Sr Josiah Child in his printed book of Trade affirms that the Plantations imploy two thirds of our shipping, and did thereby, and by taking of our manufactures give sustenance to near two hundred thousand persons in England.

THE PLANTATIONS SEVERALLY CONSIDERED.

In order to the better Government and Improvement of the Plantations, it is necessary to consider which of them are of greatest advantage, and which of the least, or rather which are disadvantagious to Brittain.

By the Inspector Generals account to importations from the several plantations in the said year 1700 stood thus.

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Imported from.
£
s.
d.
Antego.
87,773
11
52
Barbados.
356,024
6
Bermudos
1,232
6
8
Carolina
14,058
14
6
Jamaica
239,758
18
Mont Serat
42,343
4
Nevis and St Christophers
88,345
12
9
New England
41,486
9
9
New Providence
3,704
19
New York
27,567
10
Pensilvania
4,608
8
Virginia and Mary Land
317,302
12
11¼
Total
£1,224,206
18

By which it appears that our Sugar and Tobacco Collonys are of greatest advantage, and deserve most regard.

All our Sugar Collonys are Islands, and produce few things that England does, for which reason, and because they want manufactures, they are incapable of subsisting by themselves; and being under a necessity of being supplyed from abroad, it is much the interest of Brittain to have it done from thence.

Virginia and Maryland are the Tobacco Collonys, their Trade being under some discouragements of late, they plant less Tobacco, and more provisions, and are improving in some manufactures. They may be capable in time of subsisting without any supplys from Brittain.

Our other Collonys on the continent of America are Carolina, Pensilvania, the Jerseys, New York and New England. These vast tracts of Land, and several of them, especially New England are much more populous than the other more advantageous Collonys. They produce most of the same things that England does, and are capable of subsisting without any dependence on it.

They supply our Sugar Collonys with provisions and some manufactures, which England formerly had the advantage of furnishing them. In return for which goods they carry back Sugar and other produce of the sugar collonys, which is consumed in the said Plantations on the Continent; and thereby the benefit that such sugar and other goods would bring us by their importation and exportation again in Forreign Trade is likewise lost.

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OF THE PLANTATION COURTS.

It has been observed in what manner the Courts of Justice were erected, and what sort of persons were made Judges in them.

The Laws and establishments of the Courts being different in the severall Collonys, a particular and distinct account of each of them would be too long to insert here. Here follows the state of one of them in one of the collonys, by which and some observations thereon, the condition of the rest may be conjectured.

In one of these Islands (not so large as some County in England) there are usually about one hundred and fifty Justices of the Peace. Nine Courts of Justice for Civil affairs, besides the Petty sessions of the Justices, and the Court of Grand session held two several times in the year for Criminall matters, or Pleas of the Crown.

In the civil Courts there are forty four Judges, or Justices, not one of which learned in the Law.

The Court of Grand Session is held by the Governor, Council, and the Judges and all the Justices of the Peace, if they think fit to sit there, but there are seldom above 60 or 70 of them at one time on the Bench.

Thus most of the Chief persons being Judges or other Magistrates, there are few of note left to do Justice upon, and if they should do it against each other it might be retaliated upon them, and few persons can be prosecuted who are not dependant upon, or of Kindred to some of these persons.

Such Courts produce (as might well be expected) many gross errors and great partialitys, especially in the most considerable Cases. Persons wrongfully possessed of Estates belonging to others, persons indebted and Merchants and factories trusted with the Estates, and consignments of others, and not willing to account fairly and pay their creditors, have by the favour of Governors bin put in these judicial places, by which they engage the com̄on interest in their defence and protection. And this together with difficulty in recovering debts, is the chief reason that the Brittish Merchants are worse used by their factors in America then in any other part of the world, which they proverbially attribute to the effect of the climate, being ignorant of the true Cause.

It is the interest of those who inhabit the Plantations to break (if they can) the Laws by which they are restrained from Trading with any Nation but Brittain, and they do frequently break them, to our great prejudice, and are safe in so doing, being both partys and Judges.

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In the said Grand Court for tryal for crimes; Murders, Fellonys, and other great crimes frequently escape punishment, when at the same time words of the least disrespect to the Governor, or other principal persons in the Island are severely punished. One person for some disrespectfull words of the Governor was fined two thousand pounds, and laid in Prison till he paid it. And another for disrespectfull words to one of the Councill was striped naked and whipped at a Carts tail through the chief Town, although he was then in a sad condition, one of his armes, and Legs being bound up in Splinters, which he had broken a few days before. This person had born the late Queens Commission as a Lieutenant in the Militia of that Island, and had a sufficient Estate to have paid any reasonable Fine, and although he did offer and earnestly pray the Court to inflict imprisonment, and any Fine whatsoever on him, rather than such an ignominious punishment, yet he could not prevail.

Sometimes the said Justices quarrel with each other on the Bench in a most scandalous manner, and at one Court they shoved and justled the Chief Justice, and laid their hands on their Swords on the Bench, and were going to draw on each other, if a company of the guards had not immediately rushed into Court with Muskets charged and presented, with whose assistance one part of the Justices sent the others to prison.

This transaction and the whipping of the aforesaid person, were complained of in England, and fully proved, and have lain before the Board of Trade about six years to no Purpose.

It is usual with people in the plantations to engage in Suits at Law tho they are advised against it, they know the ignorance of their Courts and say they will try their luck for they have friends on the Bench. This is so great an encouragement to litigiousness that there have bin above nine hundred Causes in one year, depending in the aforesaid small Island. To the great prejudice of trade, and neglect of their Plantations.

OF PLANTATION GOVERNORS.

Governments have bin sometimes given as a reward for Services done to the Crown, and with design that such persons should thereby make their fortunes. But they are generally obtained by the favour of great Men to some of their dependants or relations, and they have bin sometimes given to persons who were oblidged to divide the profit of them with those by whose means they were procured. The Qualifications of such persons for Government being seldom considered.

The Governor is by his Commission made Captain General, Chancellor, Chief Justice, and Admiral, which are great and different powers,

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and can never be justly executed by one person, unless he have some reasonable knowledge of the matters in which he is to exercise such powers. This is seldom to be found in one man, and never was so in any of the said Governors. So that if a Governor should be a good man, and intend to do well, yet his want of knowledge in those things that most nearly concern the peace and happiness of the people, will make him subject to many and great errors, and the being misled by others; and render him utterly incapable of Judging whether the inferior parts of the Government under him be rightly administered, or of applying fit remedys if it be not.

Thus the people may be very much oppressed and injured, and many Complaints be made of them in Brittain, and yet such a Governor may not be so blamable, as those who procured his being sent to execute powers, of which they knew he was not capable.

A bad Governor invested with all these extraordinary powers, does thereupon grow haughty and insolent, he knows those who had power to put him in, had also power to protect him in a great measure from all complaints that may be made against him. He knows the great trouble and hazard they must run, and the great charge, vexation, loss of time and damage to their Estates, who are forced to take long and dangerous voyages to prosecute him. He knows that most of the Planters will rather beare any Injury than thus seek for an uncertaine redress, and that not one Planter in a hundred is able to beare the expence. He likewise is sensible that after they have proved all they can against him, the worst that can happen is, that after they have spent two or three years after this manner, he may be recalled, when the usual time of such Governments is almost expired. And may enjoy at quiet in Britain the fruites of his oppression and rapine.

Such a Governor sells his judgments and decrees to the highest bidder, and all places both Civill and Millitary without any regard to the fitness of the persons to execute them which multiplies oppressions. He protects the inferior Officers and others who pay him yearly pencions, in the neglect and breach of their duty; so that all complaints and prosecutions against them are in vain. He encourages and protects those who declare of his party against all others, in their insults, oppressions and violence. The greatest crimes committed by any of his party escape unpunished, and the smallest transgressions in the other are magnified into the greatest crimes. By arts and violence he forces the people to chuse such members for the General Assembly as he knows will consent to the raising of most money by taxes on the people, which is done on pretence of building, or

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repairing forts, storing Magazines, and other publick uses of the place; but really with design to get most of it for himself in a covert manner.

These things are not aggravated, but much less said of them then might have bin with truth. This is apparent by the following fact, which was done about eight years since.

The person above mentioned who paid the two thousand pounds fine for words spoke by him against a Governor, did afterwards complain to the late Queen, of the said proceedings, and excessive punishment; whereupon he obtained an order to have the said mony returned him by the Governor, who had received it.

The Governor enraged that he was ordered to part with the mony, resolved on a more severe revenge, and with the assistance of a person he used to imploy on such occasions, suborned one to swear high Treason against the aforesaid person, and thereupon sent him to prison, used him severely, and threatened to hang him in a few days, giving out, and making the prisoner beleive, that he had two possitive witnesses against him.

The Treason he was charged with, was a Confederacy with the French Governor of Martinico to deliver up several Brittish Islands into the Hands of the French King. The prisoner (who was a weak sickly old man near seventy years of age) to save his life and obtain his Liberty, was at last forced to give the said two thousand pounds privately to the Governor. Whereupon he was delivered out of prison without any tryall, or being bound to appear at any Court to answer it.

The acquitting of him in this manner, was alone a violent cause to presume he was not guilty of any Treason and that he had bought his Liberty of the Governor.

Full proof of all this matter was afterwards exhibited to the late Queen and Council, and laid before the Board of Trade. And the General Assembly of the Island made a full representation thereof in the most zealous manner, humbly praying her Majesty's protection of their Lives, Liberties, and Estates.

All which produced no other effect then the paying back of fifteen hundred pounds of the money by the Governors agent, who had received it, and this was done by Composition the person grieved loosing the rest. And no person was punished, or any effectuall remedy advised or proposed by the Board of Trade against such wrongs for the future.

All nations but the Brittains have Civil Governors, or Chief Justices, in their Collonys, as well as Military. They rightly Judge that no person can administer Justice, but those who understand it. And till it be so with us, no Plantation can be governed.

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OF APPEALS AND COMPLAINTS FROM THE PLANTATIONS

As appeals to the Prince from inferior Jurisdictions, are the rights of the subjects in all nations, they would contribute very much towards keeping Governors, and Plantation Courts in awe, if they were allowed from thence, as was formerly practised.

But in the year 1689, the Governors by their Instructions were directed not to suffer any appeal to be made to the King, unless the Estate, or matter contended for, did amount to the value of five hundred pounds.

This Instruction covered the Governors and Courts from an Inspection into their conduct in all cases of a less value, thereby giving them the ultimate Jurisdiction in all other cases. And whereas most of the Suites amongst them concern Traffick and not one in fifty of so great a value their power was thereby made absolute in all the rest.

This has subjected the people to many grievous wrongs, but it has made Governments and Judicial places worth more money when they are sold.

In many cases whereby the said Instruction Governors ought to allow appeals, they frequently refuse them, pretending that the Land, Estate, or Negro Slaves sued for are not of the value of £500 tho' they are worth much more. Some have bin forced to come from the Plantations, and on Petition to King get leave to appeal, and then return to the Plantations, and come back again with their appeal, and with the papers and writings necessary for the prosecution of it. And thus they are forced to two or three long Voyages, with great hazard, expence, and loss of time, before they can obtain Justice.

Where appeals have bin made against sentences and Judgments of the Courts, and all the proceedings and Records transmitted under the seal of the Plantation, it is not to be doubted but Justice has bin don, the whole matter appearing by such papers, and the ultimate Judgment given by the King in Council.

But on Complaints of grievances, and of many great oppressions, which have not been done in a Judicial way, and where the proceedings were not of record, and consequently could not be proved so fully before the King, as in the aforesaid case of Appeals, the persons injured meet with unsupportable difficulties and have seldom bin relieved on their complaints.

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The Complaints are commonly against Governors, who being the Chancellours have the keeping of the great Seal of the Colony, and will not suffer it to be put to any papers that may be used against them, untill a speciall order for that purpose can be obtained from the King.

This forces who have cause to complain to address themselves first by Petition the King praying to have his Majesty's order to the Governor commanding Him to let them have Copys of such Records and Papers as they want, attested under the Broard Seal. Which being obtained and carried to America, they may be able after a year or two thus spent, to return again to Brittain prepared to prove their grievances.

But as it very seldom happens that such oppressions can be fully proved without the Depositions of Witnesses, and as there is no Law by which witnesses can be compelled to depose in such extrajudicial cases, or any power in the plantations, except the Governors themselves to take their Depositions and return them authentically to Brittain, if they were willing to be examined, for this reason it often happens that the greatest wrongs done there cannot be proved in Brittain.

And where the persons oppressed can prevail with Witnesses to come over from the Plantations, they must bear the expence of it, and likewise pay them for their trouble, hazard, and loss of time, which with their own charges in the prosecution may amount to above a thousand pounds. This is what few of the Planters can bear, and several have been ruined by it.

This sort of complaints are begun by Petition to King in Council, upon reading there, it is referred to the Board of Trade, to examine into the matters complained of, and report their opinion to his Majesty. As these Complaints are always grounded upon breaches of the Laws, Constitutions and rules of Government in force in the Plantations, of which no person can judge truly or make any reasonable report to the King, without having a perfect knowledge of the Plantations, and of their Laws and Constitutions; as likewise of the Laws of Brittain, so that there being seldom or never hitherto any such person in the said commission, the subject of such Complaints has seldom bin truly understood by the Board, and consequently could not be rightly reported by them to the King, whereby his American subjects have failed of that Justice and relief they otherwise might have had.

That Board having found it difficult to make such reports as they ought in such cases have kept the matters referred to them a long time under their consideration and have had severall hearings of the partys concerned, who have frequently been forced to attend above twelve Months, before they were able to get a report made to the King.

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The said Commissioners having power by their Commission to examine Witnesses on Oath, but always refusing to exercise that power (as it is necessary they should) they are thereby the less able to make their reports with exactness and truth. The not exercising such power, has occasioned much Confusion, variety of opinions and different proceedings at that Board at several times. The Board have sometimes directed the partys concerned to carry their Witnesses to a Master in Chancery, and get the Depositions taken in writing, which they have after received as Evidence. At other times they have refused to receive such Depositions as evidence, and at the same time have admitted the examination of persons viva voce, who were not upon Oath. And at other times have allowed nothing to be good Evidence, but what came over from the Plantations under their Broad Seals.

This uncertainty, and variety in their proceedings has often produced more trouble, and greater oppressions then what were at first complained of, and generally their reports to the King amount to little more then giving their opinion, that the Complaints & proofs should be sent back to the Governor for his answer.

The Governors generally delay their Answers as long as they can, and after their Answers are returned to Brittain, there is usually so much time spent in a further consideration of them, that their Governments expire, and they are recalled before there be a finall determination. And so the matter commonly ends, the persons wronged knowing they can have no further relief on the said complaints.

Thus after two or three, and sometimes four or five Years excessive charge and trouble, and severall long Voyages from the other part of the World, the unhappy American Subjects are forced to bear their oppressions.

OF THE COUNCIL FOR TRADE AND PLANTATIONS.

The Board was erected about fifteen years since, as has bin before observed. By their commission they are directed to enquire into the severall obstructions of Trade, and the means of removing the same. And particularly to inform themselves of the condition of the respective Plantations, as well with regard to the Government and administration of Justice in those places, as the Commerce thereof. And to consider how the Collonys there may be eased, and secured, and rendered more beneficial to England. To look into Governors Instructions and see what is fit to be added, omitted or changed in them. To take an account yearly by way of Journal of the administrations of such Governments.

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To hear complaints of Oppressions, and Male Administrations from the Plantations. To examine into and weigh such acts as shall be passed in the Plantation Assemblys and to consider whether they are fit for his Majesty to consent to, and establish for Laws. And upon these and severall other heads, to make representations to his Majesty of such regulations as are fit to be made in the Plantations. As by a copy of the said commission will more fully appear.

If this power had bin always vested in Persons of Knowledge and Integrity, to whom the plantation affairs were well known and unanimous in the design of promoting the public service only, it might have produced much good. But there having bin many persons att severall times put into that commission for different reasons than their ability, to discharge such a trust (as is well known) it has not hitherto produced such effects as might be expected from it. And it was impossible that Board should make a right Judgment of wrong oppressions, and Male Administrations, and of Acts sent from the Plantations to be passed into Laws, or be able to represent what regulations were fit to be made in the Governments, and administration of Justice unless some at that Board had a perfect and personal knowledge of the Nature of the Plantations, and of the people, as likewise of their different Laws and Constitutions.

Many instances might be here given of many incredible things done, and omitted by that Board, but since the design of this is not to reflect on past miscarriages, but to prevent the like for the future, and since there is now reason to expect from his Majesty's wisdom and the Justice and Prudence of his Ministers that the said Councill will be in a short time better filled, two instances need only be now mentioned.

They are by the said Commission directed to examine and look into the usuall Instructions given to Governors, and to see if any thing may be added, omitted or changed therein to advantage. As likewise to consider what trades are taken up and exercised in the Plantations which are or may be prejudicial to England. They have accordingly had the consideration and setling of all such Instructions, in which nevertheless a Clause has bin constantly incerted com̄anding Governors to endeavour, and encourage the setting of Workhouses to set the poor at Work, and many Manufactures are made in the Collonys on the Continent of America, which encrease daily, so that in time they may supply our Sugar Collonys as well as themselves with things that make a great part of our Brittish Trade, to our great prejudice, and contrary to the Pollicy of all other Nations.

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They likewise continue the aforesaid Instructions against appeals, and have bin so far from advising a change thereof, that about thirteen years since, when on the Petition of many Merchants and Planters about it, a Committee of the Privy Council made a report that it should be altered; the then Board of Trade made an Interest to have it referred back to them, and on their report it has been continued.

THE WAY TO PRESERVE AND IMPROVE THE PLANT
ATION TRADE.

This may be best done by a good Council for Trade and Plantations, filled with persons of Integrity, and resolution, and fit for the Business they are imployed in.

In order to this besides one or two Lords, which are usually in that Commission there might be one or two persons of note who well understand the constitution and affairs of Brittain and if they have bin Ambassadors, or Envoys abroad they may be the better qualified. Two Merchants of reputation, who have bin concerned in general Trade, and have given it over, are likewise necessary. And as the Plantations are to be the greatest part of their Province, it is necessary there should be some at that Board who have lived in the Plantations, and have a perfect and personal knowledge of them, and especially of their Laws, Customs and Constitutions of their severall Courts, as likewise of the Law of Brittain, it being impossible to understand the Laws perfectly of the Plantations without the other, most of the English Laws being in force in the Plantations.

If any who have bin Plantation Governors or others who have served the Crown in Superior Stations in America, have done their duty and have behaved themselves with an unblamed Integrity, such persons might not only be of great service at that Board but their Imployment in that Commission would be a great encouragement to all others in the service of the Crown in America, to behave themselves well, when they have such a prospect of being employed after their return to Brittain. This alone would produce many good effects.

But as such Commissioners if they do their Duty, may be forced to disoblige many Governors, and other great Men, by whom such Governors may be favoured and supported in Brittain, it will be absolutely necessary to encourage them that they be personally known to the King, and not removable from that Board, without some fault and his Majesties immediate knowledge.

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Such a Council would be able to make proper observations on the State of the Plantations, and everything concerning them, and full representations thereof to his Majesty from time to time. On which fit remedies may be applyed

As no part of the British Dominions has been hitherto so little understood, and so much neglected, so there is more room there then in any other part of the Kings Dominion for the gaining much Honour to the administration of his Government and much good to his Subjects.

As a great part of his Majesties personal Revenue arises on the Plantation Trade, as well as of the publick revenue, so both these are fallen by the decay of the Plantation Trade, and will encrease when that is improved.

There is likewise a casual revenue arising to his Majesty in all the Plantations, which if well managed might amount to a good sume; but by neglect, connivance, and fraud, it is now become so little that it is scarce thought of.

His Majesty's Honour and Interests is more peculiarly concerned in the good Government of the Plantations, then in any other of his Brittish Dominions, for his power is greater over them, then over any other of his Subjects.

All appeals from thence are determined by his Majesty in Council, and not by the House of Lords, as they are from the rest of his Dominions.

His Majesty has power to repeal any of the Plantation Laws, without the concurrence of the Plantation Assemblys by whom they were made, or of any other whatsoever. Which cannot be done in the rest of his Dominions.

He has power to errect any new Courts of Justice, or to change those already established. And in most things the will of the Sovereign has hitherto bin the Law of the Plantations.


October the 18th 1714.