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Memorandum from the Board of Trade of Great Britain to George III, King of Great Britain concerning settlements on the Mohawk River and the tenure of judges in the American Colonies
Great Britain. Board of Trade
November 11, 1761
Volume 06, Pages 582-586

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[From MSS. Records in Office of Secretary of State.]

Whitehall 11th Novbr 1761

To the Kings most Excellent Majesty,

May it please your Majesty

We have had under our Consideration Several letters and papers which we have received from Cadwallader Colden Esqr Lieut Governor and late Commander in Chief of your Majesties Province of New York in America, And as these letters and papers have Reference to Certain Measures of Government there, which have either been Acted upon or become the Subject matter of Discussion, and which appear to us Materially to affect your Majesty's Service, and the Interest and Welfare, not only of that Province, But of all other your Majesties Colonies and Plantations in America; We think it our Indispensible Duty, in Obedience to the Directions of our Commission humbly to lay them before your Majesty with such Observations as have Occurred to us upon them

The material points to which these papers Refer and to which we shall confine our Observations are

1st. The Measures which the Lieutenant Governor and Council have entered upon for Granting Lands and making Settlements upon the Mohawk River and in the Country adjacent to Lake George.

2dly. The proposition made to the Lieut Governor by the Council to Grant Commissions to the Judges during good Behavior, the Limitation of which Commissions is by your Majesty's Instructions to all your Governors in America to be during pleasure only.

We shall not upon this Occasion take upon us to Controvert the General Principles of Policy upon which either one or other of these General Propositions is founded; but however expedient and constitutional they may appear in the Abstract View and Consideration of them, Yet we humbly Apprehend, That when they come to be Applied to the present State of your Majesties Colonies, they will appear in a very different light, and be found, the one to be dangerous to their Security, and the other destructive to the Interests of the People, and Subversive of that Policy, by which alone the Colonies can be kept in a just dependance upon the Government of the Mother Country

This may it please your Majesty, is the General light in which We see these Measures but as they are in their Nature Seperate and

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Distinct, so they will, We humbly Apprehend, require a Separate and Distinct Consideration And therefore we shall humbly offer to your Majesty what has Occurred to us upon each, in the order in which We have placed them

It is as unnecessary as it would be tedious to enter into a detail of all the Causes of Complaint, which our Indian Allies had against us at the Commencement of the Troubles in America; And which not only induced them, tho' reluctantly, to take up the Hatchet against us, and dessolate the Settlements on the Frontier but Encouraged our Enemys to pursue those Measures which have involved Us in a Dangerous and Critical War, it will be Sufficient for our present purpose to Observe that the Primary cause of that Discontent which produced these Fatal Effects was the Cruelty and Injustice with which they had been treated, with Respect to their Hunting Grounds, in open Violation of those Solemn Compacts by which they had Yielded to Us the Dominion but not the property of their Lands; It was happy for us that we were early awakened to a proper sense of the Injustice and bad policy of such a Conduct—towards the Indians, and no Sooner were those Measures pursued which Indicated a Disposition to do them all Possible Justice upon this head of Complaint, than those Hostilities, which had produced such horrid Scenes of Devastation, ceased, and the Six Nations and their Dependants became at once from the most inveterate Enemies our fast and faithfull Friends.

Their Steady and intrepid Conduct upon the Expedition under General Amherst for the Reduction of Canada is a Striking Example of the Truth of what we have represented, and they now, trusting to our good Faith, impatiently wait for that Event, which by putting an end to the War, shall not only ascertain the British Empire in America, but enable your Majesty to renew those Compacts, by which their property in their Lands shall be Ascertained, and such a System of Reform introduced with Respect to our Interests and Commerce with them, as shall, at the same Time that it redresses their Complaints and Establishes their Rights, give Equal Security and Stability to the Rights and Interests of all your Majesty's American Subjects.

Under these Circumstances and in this Situation therefore the Granting Lands hitherto unsettled and Establishing Colonies upon the Frontiers, before the Claims of the Indians are Ascertained appears to us to be a Measure of the most dangerous Tendency, and is more particularly in the present Case as these Settlements now proposed

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to be made, especially those upon the Mohawk River are in that part of the Country, of the Possession of which the Indians are the most Jealous, having at Different Times expressed in the Strongest Terms their Resolution to Oppose all Settlements thereon, as a Manifest Violation of their Rights.

The Principles of Policy which we have laid down are, we humbly Apprehend in their Nature so Clear and uncontrovertable, that it is almost unnecessary for us to add anything further to induce your Majesty to give Immediate orders for putting a stop to all Settlements upon the Mohawk river and about Lake George, untill the Event of the Warr is Determined, and such Measures taken thereupon, with Respect to our Indian Allies as shall be thought expedient: And yet it may be proper to Observe, that independant of what regards our Connection with the Indians, the Conduct of those, who have in former Times been intrusted with the Administration of the Government in New York has, in reference to Granting of Lands, in General been very Exceptionable, and has held forth a very bad example to their Successors.

The exorbitant Grants of Lands, which Governors and others have heretofore made, greatly to the Benefit of themselves, but very much to the Prejudice of the Interest of the Crown and of the people in General, have been long the Subject of great Complaint, and we Cannot but think that the Lieutt Governor and the Council would have Shewn a Greater Regard to your Majesties Interests and the Welfare of the Province in General, by a pursuit of such Measures as might have Opperated to Correct those Abuses and Remedy the evils Arising from so improper a Conduct in their predecessors in Government, than by entering upon Measures for making fresh Grants and Settlements which, We have great Reason to Apprehend from Information which may be depended upon, are more for the Benefit of themselves and their Families than for the Subject in General and therefore We humbly Submit to your Majesty whether this may not be an Additional Reason, why Speedy and Positive [instructions] should be given for puting a stop to Measures, which appear to us in every Light, so destructive of your Majesty's Interests and the General Welfare and Security of the Colony.

Having thus humbly laid before your Majesty our Sentiments upon the first point Contained in Mr. Coldens Letter's, We shall proceed to State, as Shortly as possible what has Occurred to us upon the Proposition of Granting the Judges Commissions during good Behaviour, and it will be the less necessary to detain your Majesty

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long upon this Question, as it has been already so Solemly determined in the Case of a Law, some time since passed in Jamaica, and one lately in the Proprietary Government of Pennsylvania for Establishing such a Constitution.

The Principles laid down in the Attorney and Sollicitor Generals Report upon the Jamaica Law and in that of our Predecessors in Office upon the Act passed in Pennsylvania, are so Clear and Explicit, that it is Almost unnecessary to add any thing thereto, But as the people of New York appear from the Lieutenant Governor's Letter to be so Strenuous upon this Point, alledging the precident and Example of the Mother Country, it is our Duty to Observe, that the Cases are, in our humble Opinion in no degree Similar.

The Change which the Tenure of the Judges Commissions underwent at the Revolution in this Kingdom, was founded upon the most Conclusive and Repeated Proofs of Arbitrary and illegal Interposition under the Influence of the Crown, upon points of the greatest Importance to the Constitution and the Liberty and Rights of the Subject; It was not however by the Tenure of their Commissions alone that they were Rendered independant, but such Salaries were Settled upon them, as not only rendered them less liable to be Corrupted, but was an Encouragement for the Ablest men to engage in that profession which Qualified them for such high Trusts.

The same Circumstance does in no degree exist in the American Colonies where as there is no Certain Established allowance that may encourage men of Learning and Ability to undertake such Offices, your Majesties Governors are frequently Obliged to appoint such as Offer from amongst the Inhabitants, however unqualified to Sustain the Character, and tho' a more fit person should afterwards be found, Yet if the Commission was during good Behaviour, such unqualified person could not be Displaced.

We are Sorry to say that late years have produced but too many examples of Governors having been Obliged, for want of such an Establishment as might induce able Persons to Offer their Service, to confer the Office upon those who have Accepted it merely with a view to make it Subservient to their own private Interests, and who, added to their Ignorance of the Law, have too frequently become the Partizans of a factious Assembly, upon whom they have been dependent for their Support, and who have witheld or inlarged that Support according as the Conduct of the Judges was more or less favourable to their Interests.

It is difficult to Conceive a State of Government more dangerous

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to the Rights and Liberties of the Subject, but aggravated as the Evil would be by making the Judges Commissions during good Behaviour, without rendering them at the same Time Independent of the Factious will and Caprice of an Assembly, We cannot but Consider the proposition as Subversive of all of all true Policy, destructive to the Interests of your Majesties Subjects, and tending to lessen that just Dependence which the Colonies ought to have upon the Government of the Mother Country.

That this was in a great degree the Opinion of the Lieutenant Governor himself will evidently appear from a Letter to Us of the 2d of June last, in which he Acquaints us with his having rejected a Bill passed by the Assembly for that purpose, and urges as a Reason, that there was no fixed Salary to the Judges, That it was dependent from Year to Year on the pleasure of the Assembly and that while they were thus dependent upon the people for their Subsistance, such a Measure might be highly prejudicial to the Just rights of the Crown and the Acts of Trade; These may it please your Majesty, were then the Sentiments of the Lieutenant Governor and tho we are at a loss to guess at the Motives, which could have induced him to declare as he does in his letter to us of the 12th of August following, that he Apprehended, he should be under a necessity of giving way to the Proposition, yet it is Our Duty to say, That we cannot but be of Opinion, that if under these Circumstances he should have Complyed with so pernicious proposition, he will justly have deserved your Majesty's Royal Displeasure.

Upon the whole, both the points, upon which we have now taken the Liberty to lay our Sentiments before your Majesty, appear to us so essential to your Majesties Rights and the Interests and Welfare of the Colonies in general, That we humbly Submit, whether it may not be adviseable that your Majesty's Pleasure upon both of them should be made known, not only in the Colony of New York, But also in all other the American Colonies All which is most humbly submitted

SANDY'S
EDd THOMAS
SOAME JENYNS
GEO RICE
EDd BACON
JOHN YORKE