ORDER IN COUNCIL ON A REPORT OF THE LORDS OF TRADE.*
PLANTATIONS GENERAL PAPERS, XVII. (Q.) No. 21.
At the Court at St. James's the 23d day of November 1761.
Present—The King's Most Excellent Majesty in Council.
Upon reading this day at the Board a Report from the Right Honourable the Lords of the Committee of Council for Plantation Affairs, dated the 21st of this Instant in the words following, vizt
“Your Majesty, having been pleased to referr unto this Committee a Representation from the Lords Commissioners for Trade and Plantations dated the 11th of this Instant, Setting forth “That they have had under their consideration several letters and papers which they have received from Cadwallader Colden Esqr Lieutenant Governor and late Commander in Chief of Your Majesty's Province of New York in America, and as those 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 materially to affect Your Majesty's Service and the Interest and welfare not only of that province but of all other your Majesty's Colonies and Plantations in America they thought it their indispensable duty to lay the same before Your Majesty with such observations as have occurred to them thereupon. That the material Points to which those papers referr and to which the said Lords Commissioners confine these 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.
“ “2ndly The Proposition made to the Lieutenant Governor by the Council to grant Commissions to the Judges during good behaviour, the limitation of which Commissions is, by Your Majesty's Instructions to all Your Governors in America to be during pleasure only.
“ “That the Said Lords Commissioners shall not upon this occasion
*Reproduced from documents relative to the Colonial History of the State of New York, edited by E. B. O'Callaghan, M.D., LL.D. (Albany 1856). Vol. VII., pp. 472-476.
“ “take upon them 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 they apprehend that when they come to be applied to the present State of Your Majesty's 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 Colonies can be kept in a just dependance upon the Government of the Mother Country.
“ “That this is the General Light in which they see these, measures, but as they are in their nature separate and distinct, so they will as the said Lords Commissioners apprehend require a separate and distinct consideration and therefore they humbly offer to Your Majesty what has occurred to them upon each in the order in which they have placed them That 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 thô reluctantly to take up the Hatchet against us and desolate the Settlement on the Frontiers but encouraged our enemies to pursue those Measures which have involved us in a dangerous and critical war, it will be sufficient for the 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 those 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.
“ “That their steady and intrepid Conduct upon the Expedition under General Amherst for the Reduction of Canada is a striking example of this truth, 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 Reformation 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.
“ “That under these circumstances and in this scituation the granting Lands hitherto unsettled and establishing Colonies upon the Frontiers
“ “before the claims of the Indians are ascertained appears to be a measure of the most dangerous tendency, and is more particularly so in the present case, as these settlements now proposed 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.
“ “That the principles of Policy which the said Lords Commissrs have laid down are they apprehend in their nature so clear and uncontrovertible that it is almost unnecessary 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 until the Event of the War 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 of 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.
“ “That 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 Interests of the Crown, and of the people in general have long been the subject of great Complaint, and the said Lords Commissioners cannot but think that the Lieutenant Governor and Council would have shewn a greater regard to Your Majesty's Interest and the welfare of the province in general, by a pursuit of such measures as might have operated to correct those abuses, and remedy the Evils arising from so improper a Conduct in their proceedings in Government, than by entering upon Measures for making fresh grants and settlements which they 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 they submit to Your Majesty whether this may not be an additional reason why speedy and positive orders should be given for putting a stop to Measures which appear in every light so destructive of Your Majestys Interests and the general welfare and security of the Colony.
“ “That with respect to the other point relative to the granting the Judges Commissions during good Behaviour it will be less necessary to detain Your Majesty long upon this Question, as it has been already so solemnly determined in the case of a Law some time since passed in Jamaica, and one lately in the Proprietary Government of Pensilvania for establishing such a constitution.
“ “That the principles laid down in the Attorney and Sollicitor Generals Report upon the Jamaica Law, and in that of the said Lords Commissrs Predecessors in Office upon the Act passed in Pensilvania 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 letters to be so strenuous upon this point, alledging the preceedent and example of the Mother Country, The said Lords Commissrs observe that the cases are in no degree similar.
“ “That 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.
“ “That 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 Majesty's Governors are frequently obliged to appoint such as offer from amongst the inhabitants however unqualified to sustain the character, and thô a more fit person should afterwards be found, yet if the Commission was during good behaviour such unqualified Person could not be displaced.
“ “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 on 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 dependant for their support, and who have witheld or enlarged that support according as the conduct of the Judges was more or less favourable to their Interests.
“ “That it is difficult to conceive a State of Government more dangerous 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 independant of the factious will and Caprice of an Assembly, The said Lords Commissioners cannot but consider the proposition as subversive of all true policy, destructive of the interests of Your Majesty's Subjects, and tending to lessen that just Dependance which the Colonies ought to have upon the Government of the mother Country.
“ “That this was in a great Degree the Opinion of the Lieut. Governor himself, as will evidently appear from a Letter to the said Lords Commissioners of the 2d of June last, in which he acquainted them with his having rejected a Bill passed by the Assembly for this purpose, and urges as a Reason that there was no fixed Salary to the Judges, that It was dependant from year to year on the pleasure of the Assembly and that
“ “whilst they were thus dependant upon the people for their subsistence such a measure might be highly prejudicial to the just Rights of the Crown, and the Acts of Trade. That these were then the sentiments of the Lieut Governor and though the said Lords Commissioners are at a loss to guess at the motive which could have induced him to declare, as he does, in his letter to them of the 12th of August following, That he apprehended he should be under a necessity of giving way to the Proposition, Yet they cannot but be of Opinion that if under these circumstances he should have complied with so pernicious a Proposition, he would justly have deserved your Majesty's Royal Displeasure.” ”
“The Lords of the Committee this day took the said Representation into their consideration, and agreeing in opinion with the said Lords Commissioners for Trade and Plantations do humbly report to Your Majesty that they conceive it advisable that Your Majesty's Pleasure should be made known upon the first point of Granting Lands, as well in the Colony of New York as in all other Your Majesty's Colonies on the Continent of America, where such grants interfere with the Indians bordering on those Colonies. And that Your Majesty's pleasure should be made known upon the last point which relates to the appointment of Judges, not only in the Colony of New York but in all other Your Majesty's Islands and Colonies in America: And therefore that Your Majesty may be graciously pleased to order the said Lords Commissioners to prepare Draughts of Instructions proper to be sent hereupon to the Governors or Commanders in Chief of all Your Majesty's Islands and Colonies in America accordingly, to the end that due obedience be given thereto and the matters complained of so detrimental to the public service, prevented for the future.”
His Majesty taking the said Report into consideration was pleased by the advice of his Privy Council to approve of what is therein proposed and accordingly to order, as it is hereby ordered, that the Lords Commissrs for Trade and Plantations do prepare Draughts of Instructions proper to be sent with respect to the first point of granting Lands, as well to the Governor or Commander in Chief of the Colony of New York, as to the Governors or Commanders in Chief of all other His Majesty's Colonies on the Continent of America where such grants interfere with the Indians bordering on those Colonies And that they do also prepare like Draughts of Instructions upon the last point which relates to the Appointment of Judges, to the respective Governors and Commanders in Chief of all other His Majesty's Islands and Colonies in America, to the end that due obedience be given thereto, and the matters complained of, so detrimental to the public service, prevented for the future. And that such Draughts of Instructions be laid before His Majesty at this Board for his Royal Approbation.