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490. i. Same to the King. In obedience to Her Majesty's commands of 3rd Dec., etc., we have considered the copies of two memorials thereby referr'd to us complaining that a French Merchant ship call'd the Fortune, in her return from the Island of Mary Galante in May, 1735, being forced by the currents upon the coast of Montserrat, was there seized by order of Mr. Mathew, your Majesty's Govr. of the Leeward Islands, who, as is alledged, before he would discharge the said ship, obliged the Commander to give security to pay to him the Govr. the value of his ship and cargoe, if within a certain time he did not procure an order from your Majesty that the said bond should be discharged. We have likewise considered the copy of a Memorial delivered to my Lord Waldegrave referred to us by the Duke of Newcastle's aforementioned letter complaining that another French ship call'd the Fleuron of St. Malo, had been seized on the 22nd of July last (tho' it is alledg'd, that there was not the least suspicion of her being concerned in contraband trade) and carried to Montserrat, where the said ship and cargo had been confiscated, under pretext of a law made by the Assembly of Montserrat on the 5th of June last, Her Majesty having been pleased to direct, that we should make enquiry into the true state of the several facts complained of in these Memorials, and report our opinion thereupon; we take leave to inform your Majesty that we have been attended by the Agents of the Leeward Islands and by several of the most considerable planters and merchants interrested in, and trading to the said Islands with whom we have had several conferences and have likewise received memorials from them upon the subject of this complaint, with other papers relating thereto, and also to captures made by the French vessels belonging to your Majesty's subjects ; upon which we humbly represent to your Majesty That by the 5th article of the Treaty of Peace and Neutrality concluded between the Crown of Great Britain and the French King in 1686, it is agreed, that the subjects of each King shall forbear to trade and fish, in all places possessed, or which shall be possessed by the one or the other party in America; and that if any ship or vessel shall be found trading or fishing contrary to the tenor of the said Treaty, the said ship or vessel with its lading (due proof being made) shall be confiscated, reserving nevertheless to the party who shall find himself aggriev'd by such sentence of confiscation liberty to apply to the Council of State of that King by whose Govrs. or judges the sentence has been given against him, and there complain of the matter which nevertheless shall not stop the execution of the sentence, but it is expressly stipulated by the said article, that the liberty of navigation shall not be disturb'd, where nothing contrary to the genuine sence of the said Treaty is committed. This Treaty was mutually observed by the subjects of each King, during the times of peace between the two nations till the year 1727, when the French King published an Edict very destructive to the trade of your Majesty's subjects of which we have had an authentick copy transmitted to us by his Grace the Duke of Newcastle and of which we take the liberty of inclosing a copy with this representation whereby it is ordered that strangers shall not touch with their vessells in the ports, creeks or roads of any of his Islands or Colonies (even in his uninhabited Islands) nor sail within a league thereof under pain of confiscation of their vessels and cargoes, and also a penalty of one thousand livres. Several vessels belonging to your Majesty's subjects having been seized and con-demn'd under pretence of this Edict, and no redress obtained from the French Govr. of Martinique, notwithstanding the repeated applications made to him for that purpose, your Majesty's Govr. of the Leeward Islands on the 5th day of June last was induced to give his consent to an Act passed by the Council and Assembly of Montserrat, for the more effectual preventing all trade in those parts between your Majesty's subjects and the French, by virtue of which act one of the ships mentioned in the aforesaid Memorials called the Fleuron was seized at Montserrat of which we shall give your Majesty a particular and distinct account in the course of this representation. With regard to the ship the Fortune whose seizure is likewise complained of in the said French memorials, it appears to us that the gunner of the Fort in Plymouth Road in the Island of Montserrat, seeing the said ship Fortune with a French pendant, and very near the ships in the Road, did on the 24th of April, 1735, fire at her in order to bring her to, but no appearance of illegal trading having been proved against her she was released, James Hardouins giving security to pay to your Majesty's Governr. of the Leeward Islands the value of the said ship and cargo ; if within eight months from the date thereof it should be made appear to your said Govr. that before the date of this seizure the rigour of the aforesaid French Edict of 1727 had been agreed by your Majesty and the French King, to be taken off. Or if before the expiration of the said eight months, the Master of the said ship or his securities, should produce to your Majesty's said Govr. an order from your Majesty to release the said Master and his security. This we find to be the case of the ship Fortune, mentioned in the French Memorial; and altho' we do not see by what authority your Majesty's Govr. did exact security from the French master, no intention to trade having been proved against him, yet we can't help observing to your Majesty that the usage which this French ship and crew met with at Montserrat, was far different from the cruel treatment your Majesty's subjects have undergone at Martinique in the like circumstances. The ship Fleuron, which is the other ship whose seizure and condemnation is complain'd of in the aforementioned French Memorials was seized by the Pall Mall, a sloop belonging to your Majesty's Govr. of the Leeward Islands, on the 11th day of July last, sailing within a league of the shore of Redonda, an Island belonging to your Majesty and within the extent of the Government of the Leeward Islands, as appears by a copy of the proceedings of the Court of Admiralty held at Montserrat for the tryal of the said ship now before us. The Montserrat Act aforementioned after setting forth an illicit trade carried on notwithstanding the Treaty of Neutrality in 1686 the French Edict of 1727 for seizing and confiscating every foreign ship, found sailing within a league of their coast, and that the judges of the Courts of Admiralty of the Leeward Islands have been doubtfull what judgment to give on tryals of vessels for a breach of the said Treaty of Neutrality for want of some law to give further force to and render the said Treaty more effectual, prays that it be enacted that it shall be lawfull for the Commander of any of your Majesty's ships of war, or any other vessell fitted out by commission from the Govr. to seize and take any French ship or vessel that they shall meet at sea within a league of any English shore or sailing any where within the extent of the Government of the Leeward Islands and having actually traded any where with any of your Majesty's subjects : and the Court of Admiralty is impowered to convict and condemn such ship only which shall by due proof be found to have traded with your Majesty's subjects. But the Fleuron not appearing to have traded seems to have been condemn'd only for having been found within a league of the shore, which cannot even be justified by the Montserrat Act itself because the being within a league of shore can only be deemed by this Act a reason to seize and take such vessells, which cannot by the same Act be condemned but for having actually traded. And we cannot but observe to your Majesty that the sentence of condemnation given against this ship by the Judge of Admiralty does not appear to us to be justified either by the Treaty of 1686 or by the Montserrat Act. We now humbly lay before your Majesty a more particular account of the aforementioned Montserrat law for preventing all trade between the English and French with the reasons which induced your Majesty's Govr. of the Leeward Islands to give his assent thereto. But first we beg leave to suggest to your Majesty such reasons as have been offer'd to us, in justification of the Govr. for having given his assent to any law at all, for the purpose of that lately pass'd at Montserrat. We have already premised that by the 5th article of the Treaty of Neutrality concluded in 1686, between the Crowns of Great Britain and France the subjects of neither King should be allowed to trade or fish in any places possessed, or which shall be possess'd by the other in America, under penalty of confiscation providing at the same time for a mutual liberty of Navigation where nothing contrary to the general sence of the said Treaty is committed. By the 6th article of this Treaty, it was mutually agreed, that in case the subjects of either king with their shipping be forced thro' stress of weather or other urgent necessity to retreat and enter into any of the bays, ports and shores belonging to the other in America, they shall be received and treated there with all humanity and kindness and not detain'd or hindred from returning, provided they do not trade or employ themselves in fishing, which by this Treaty is forbid, under penalty of confiscation ; and provided they give such notice on their coming in, as is by this article expressed. In the year 1727 the French King published an Edict by the 3rd article of which it is declared that strangers shall not touch with their vessels in the ports, creeks or roads of any of his Islands or Colonies (even in his uninhabited islands) nor sail within a league thereof, under the penalty of confiscation of their vessells and cargoes and of a fine of one thousand livres. By the 4th and 5th articles of this Edict all the French King's officers, commanders of ships and subjects, are to put the above article in execution. And by the 11th article of this Edict, that genl. liberty which is granted to the subjects of either king in the Treaty of Neutrality of being us'd with humanity and kindness when drove by stress of weather or other necessity into any of the ports of each other in America, is restrain'd to a few ports only described in the said article and even there they are put under difficulties not mentioned by the Treaty. Under colour of this Edict, the vessells of your Majesty's subjects have been seized and condemn'd, for being only within a league of the French shoare altho' frequently forced there, by stress of weather and other accidents ; and sometimes at 5 leagues from their shoars your Majesty's subjects have been taken, their ships seized and condemned, and heavy fines laid on them, tho no intention of trade could be proved against them, and they have even extended the rigour of this Edict to Islands undoubtedly belonging to your Majesty, and which have by mutual consent been evacuated till the right thereto could be determined at home. Of this and some other instances of the rigorous treatment your Majesty's subjects have met with from the French Govr. of Martinique, we beg leave to inclose instances with this representation. The many and repeated complaints of injuries sufferd by your Majesty's subjects in those parts, and the many fruitless applications for redress from the French Govr. of Martinique might probably lead your Majesty's Govr. of the Leeward Islands with the Council and Assembly of Montserrat into measures to prevent these seizures for the future. And as they might think themselves justified, in making seizures in the same manner, the French had done, by their Edict of 1727, they pass'd the aforementioned act, giving thereby a power to seize any foreign vessells within a league of any English shore or sailing anywhere within the extent of the Government of the Leeward Islands and of confiscating such vessel of any trade with your Majesty's subjects could be prov'd against them. Altho your Majesty's Govr. of the Leeward Islands with the Council and Assembly of Montserrat may have had a real good intent in the passing this act, vizt. the preventing of illegal trade, and altho' this law is not to serve [? so severe] as the French Edict, no French vessel being liable to be condemn'd by this Act, unless there is some proof of her having actually traded or having on board, goods merchandise &c. of the growth and product of your Majesty's Colonies, whereas by the French Edict, sailing within a league of their shores, is alone a sufficient reason for condemnation, yet we are of opinion that the legislature of Montserrat, by taking upon themselves to explain and enforce a Treaty subsisting between the two Crowns of Great Britain and France without your Majesty's leave first obtained are guilty of encroaching upon your Majesty's Prerogative and the Govr. for having given his assent to an Act of such an extraordinary nature and importance, without a clause to suspend its taking effect until your Majesty's pleasure could be known upon it is guilty of a manifest breach of your Majesty's Instructions. For these reasons we would humbly propose that the act might be immediately repealed, but that we have received information that the French Govr. of Martinique finding that French vessells were now seized for the reasons assigned in their own Edict, had desired Capt. Crawford, Commander of your Majesty's ship the Roebuck to acquaint your Govr. of the Leeward Islands that he was sending a deputation to propose a cessation both of the Edict and the Act, until the affaire can more properly be determined at home by your Majesty, and the French King. And we must submit it to your Majesty whether this may not be a proper occasion for your Majesty's Minister at the Court of France to insist upon the revoking the Edict ; for if your Majesty should be pleased to declare your immediate disallowance of the Montserrat Act, unless the French King should also annul the Edict, it might be looked upon as a tacit allowance thereof, and the extensive manner in which the French have taken the liberty of carrying the same into execution, even five leagues from their own shores, may be attended with consequences very obstructive to the trade of your Majesty's subjects, and the French may in time assume to themselves a right to seize ships in America, not consistent with your Majesty's Dominion in those seas. [C.O. 153, 16. pp. 68–84]. |
