William Popple [Secretary of the Board of Trade]; 1 April, 1708
"Letter to the [C. Spenser, Third] Earl of Sunderland, Secretary of State, enclosing a representation upon the petition of Mr Benger and his Wife, complaining of their being dispossessed of a plantation in Ferryland, etc."
Great Britain, PRO, Colonial Office, CO 195/5, 24-29.
MHA 16-D-3-005. Transcribed by P.E. Pope.
To the Rt Honourable
the Earl of Sunderland
Having prepared a representation to be laid before Her Majesty in Council upon the petition of James Benger and his wife, to Her Majesty, complaining of their being unjustly dispossessed of a plantation in Newfoundland, we transmit the same to your Lordship, and are
Most humble servants,
April the 1st, 1708
To the Queen's Most Excellent Majesty
May it please Your Majesty, in obedience to Your Majesty's order in council of the 6th of January last, upon the petition of James Benger of Newfoundland, merchant, and Mary his wife, complaining of their being unjustly and arbitrarily dispossessed of a certain plantation belonging to them in that country [the Pool Plantation], we have examined the petitioners' allegations, and heard several persons thereto, and have likewise received the affidavits of Captain Thomas Cleasby, and other persons, the said Cleasby having in the years 1696, 1697 and 1699 been Commander of your Majesty's Ships the LIME and MARY GALLY, employed in those respective years at Newfoundland. Whereupon, we humbly take leave to represent to Your Majesty, the state of the case as it appears to us, from the said affidavits, viz.
That Sir David Kirke, in the reign of your Majesty's royal grandfather King Charles I, was possessed of Ferryland, and of a plantation there, called Pool Plantation, upon which he lived during his life. And, that after his death, the same was possessed by his widow [Lady Sara Kirke], and after her decease by David Kirke [II], second son of the said Sir David, with the consent of his three other brothers [George Kirke, Phillip Kirke and Jervase Kirke].
That David Kirke [II] continued in the peaceable possession of the said plantation for many years together, but at length permitted Phillip, his younger brother to enjoy it, in order to the setting of him up in the world.
That, upon the death of Phillip, who left no issue, and likewise upon the death of David, who was the petitioner Mary Benger's first husband, the said plantation by David's will became vested in her and her heirs. But that before the said David Kirke died, the country was invaded and plundered by the French, and the said David Kirke and his wife, with all the other inhabitants of Ferryland, were taken and carried away prisoners to Placentia.
That thereupon, in the year 1697, Captain Cleasby was sent to recover the country, and upon his arrival found it abandoned and wasted. And that, while he was there, the petitioner Mary Benger, came to the harbour of St John's and related the death of her said husband, David Kirke [II], during his imprisonment.
That after the Act of Parliament passed in 1698, relating to Newfoundland [King William's Act to Encourage the Fishery], the said Captain Cleasby was again sent, to put the same in execution. Upon whose arrival, and also of Commodore Leake, a court was opened for the settlement of the properties of the inhabitants, pursuant to the said Act. And, upon proclamation made for any persons to come in and claim Pool Plantation aforesaid, a master of a fishing ship appeared and insisted that he had a right thereto by virtue of the said Act, under pretence that the same was deserted and not built upon [Mansion House NOT present].
But, that upon a hearing of the matter before Commodore Leake and Captain Cleasby, it appeared that the said Mary Benger had a plain and full right by a continued and long succession of possession. And that during all that time the stages, rooms and all other things requisite for the maintenance of the fishery were annually erected and kept up. And had been so then, if not unavoidably hindered by the invasion and their being carried away to Placentia. Upon which, it was adjudged that she had an undoubted right to the said plantation, and a quiet possession thereof accordingly given her, by the said Commodore.
That in all the time she has enjoyed the said plantation, no person appeared as claimant thereunto, but the master of the ship aforesaid. Nor has any other person offered to disturb the petitioners till of late, when, as is alleged, Major [Thomas] Lloyd in favour of Kirke [Phillip Kirke II, surviving son of George Kirke], who claims as heir at law, has not only forbid the tenants to pay the rent for the said plantation, but has also threatened to dispossess the said Benger of her dwelling house and plantation at St. John's.
For our further information, we sent to Mr Merret, agent for the said Major Lloyd, to know if he had any thing to offer against the petitioners' claim, who informed us, that he had nothing to offer in this matter; but that he has heard of it and believes it true that the petitioners have been dispossessed, but knows not that it was by Major Lloyd's order.
This being the state of the case, as it appeared to us, we take leave to represent to your Majesty that the petitioners have been unlawfully dispossessed of the said plantation, and humbly offer, that your Majesty would be gratiously pleased to send orders to the Commodore of this year's convoy that he put the petitioners in possession of the said plantation at Ferryland, unless full and sufficient proof be made to him that the petitioners were not in actual and quiet possession, pursuant to the said Act of Parliament, according to the aforesaid state of the case.
Which is most humbly submitted.
April the 1st, 1708