in Petit-Guavis in Hispaniola the rest of that Island being possest by the Spaniards The French have also a Settlement in Guiana in the Terra-Firma and several Forts upon the Coast of Caribana and above twelve or thirteen American Islands The Dutch have also the City of Coro in the North of Terra-Firma and Suranam and certain Forts upon the Coast of Guiana and Curasao and several American Islands The Portuguese have the Coast of Brasil divided into many Captainships The Interest of Spain was ever opposit to all these Settlements in America and wherever they were strong enough they attempted to expel the Planters without regard to Peace or War whereof the Scots did formerly feel the Effects in their Plantation at Carolina holden of the Crown of England from whence they were expelled These things were done by way of Fact but it is the first time that ever Spain did openly pretend a Right beyond actual Possession which was never sustained by any European Prince And it is desired and expected that there may be a further Condescendance of the Right and Title of Spain to exclude other Planters by the Consent of the Natives where Spain hath no actual Possession or Exercise of any Jurisdiction It is further alledged for Spain That all the Business in America was settled by the Pacification 1670 betwixt the Kings of Brittain and Spain which did confirm all the Plantations possess'd by English Colonies and left the Remainder of America to Spain and whatever happened before that General Treaty could be no Rule thereafter because there was almost perpetual War with Spain in America which were never settled or composed till the Treaty 1670 which did presuppose and establish the Right of Spain to all that was not possessed by the King of Brittain's Subjects As to the Instance of Sharp it is not denyed that he was acquitted and amongst others did propone that Defence That he Acted by Commission from an Indian Prince but that Defence was look'd upon as a Jest and it was not for that Reason that he was acquitted It is Answered There was indeed a Treaty in the Year 1670 concerning America in particular whereby it was provided That the King of Brittain should have hold and enjoy for ever with full Right of Sovereignty Dominion and Property all those Lands Regions Islands Colonies and Places whatsoever situated in the West-Indies or any part of America which the said King and his Subjects did then hold and possess From which Article the Spaniards would infer that all the rest of America was lost by the King of Brittain as a Right and Dominion of Spain because that Spain ratifies the Possession obtained by the King of Brittain and there is not a mutual Ratification of the Possession of the King of Spain This Article can bear no such Inference for 1. The King of Brittain and his Subjects did not then nor do they now in the least question the Possessions of the King of Spain and his Subjects but the King of Spain did very much question the Right of the King of Brittain to several of his American Plantations not only upon the general Ground of an Universal Title to all the West-Indies which no European Prince will bear but likewise upon particular Claims that the English had beat out the Spaniards and enjoyed what had been once possess'd by them in several places And the former Treaties with Spain especialy that in the Year 1667 were only general establishing a perpetual Peace betwixt the Dominions and Teritories of Brittain and these of Spain But the Question remaining anent the Right and Dominion of these American Settlements to which the King of Spain did lay still a Claim The Treaty 1670 did renounce his Claim to the Colonies in the English Possession but did determine nothing as to those parts of America which were never Possess'd by the Spaniard or Brittish and if it had been intended that the Right of Spain to all America that was not possess'd by some other European Prince should be asserted and declared the same would not have been left to such remote conjectures but would have been specially express'd 2. The whole Tenor of that Treaty does sufficiently clear that no such thing was intended as to presuppose much less to assert the Right of Spain beyond actual possession For by the Second Article of the Treaty it is provided That there be an Universal Peace in America as in other parts of the World between the Kings of Great Brittain and Spain and between the Kingdoms States Plantations Colonies Forts Cities Islands and Dominions belonging to either of them and between the People and Inhabitants under their respective Obedience This Article in the Treaty relating to America only doth clearly demonstrate that both Kings were set upon an equal foot and did Treat for themselves and the People and Inhabitants under their respective Obedience and no further so that all matters were left untouched that did concern parts not Inhabited or possess'd by Natives who were never under obedience to either Prince nor would the Treaty have been for Plantations Colonies Forts c. equally and mutually if either King had pretended an universal Title or Right beyond Possession 3. The Eight Article doth yet further clear that the King of Spain had no Universal Claim but according to his Possession which Article provides that the Subjects Inhabitants and Mariners of the Dominions of each Confederate shall forbear to Sail to or Trade in the Ports and Havens which are fortified with Castles Magazines or Ware-Houses and in all other Places whatsoever possess'd by the other Party in the West Indies To wit the Subjects of Brittain shall not Sail into and Trade in the Havens and Places which the Catholick King holds in the Indies nor in like manner shall the Subjects of the King of Spain Sail into c. This Clause is plainly restrictive upon the King of Spain That the Subjects of the King of Brittain shall not Trade into these places of the Indies which belong to Spain for thereby it presupposes that Spain has no Universal Title and it s left free to the King of Brittains Subjects to Sail into and Trade in all Ports and Havens which have no Fortifications Castles Magazines or Ware-Houses Possess'd by the King of Spain and consequently it was lawful to have Sailed to and Traded with the Darien Indians where the King of Spain had no Fortifications Castles Magazines or Ware-Houses nor can clear any manner of Possession and if they might Trade with the Indians it must be acknowledg'd they might Settle among them It 's also provided by the Tenth Article that in case the Ships of either Party be forced by stress of Weather or otherwise into the Rivers Creeks Bays or Ports belonging to the other in America they shall be treated there with all Humanity and Kindness Which Article states both Kings again upon an equal foot and mentions the Right of both as restrictive to
remain'd free to be appropriated by the Occupation and possession of any other People a Rule Uncontraverted amongst all Nations on the Face of the Earth But the Case of America being That before any Plantations were Settled there by the Spaniards the Natives were undoubtedly the Possessors and Proprietors It follows necessarly That Colonies coming to Settle among them must derive Right from them and that either by Consent Surrender or Conquest it being impossible in the case of Countries inhabited there can be any other Manner or Mean of Acquisition But so it is That the Spaniards acquiring after this manner neither could nor can pretend to have Right to more than did pertain to the People where they Settled whether by Consent Surrender or Conquest Whence it necessarly follows That since Darien was a distinct Country and the Inhabitants thereof a distinct People from those Countries and Nations where the Spaniards have hitherto Settled whether by Consent Surrender or Conquest The Spaniards cannot pretend to extend their Right beyond that of their Predecessors and the People Country of Darien must still be as free from the Spaniards as they were from their Predecessors and consequently that the Company coming to possess with the Dariens Consent and by their Right must be in the like Condition and noways lyable to either the Claim or Complaint of the Spaniards That the Country and Natives of Darien did never submit to or were conquered by the Spaniards must stand as a sure Position unless the contrary be proven But further it is also certain That the Dariens were never Repute to have any Dependency even on the great Empires of Mexico and Peru much less upon the little places of Carthagena Porto-bello or Panama Besides The Dariens have been in frequent War with the Spaniards since their first arrival into these Parts and were never to this day Conquered All which being attested by the English and other Travellers who have Written on this Subject It appears to be beyond Controversy That the Company having Settled with the Consent of these Dariens must have the same Right with the same Priviledges and Freedom of Trade which the Dariens had and that both are equally free from all the Spanish Pretensions It is a known Case that an English Man one Sharp having join'd with the Dariens against the Spaniards invaded their Territories he was accused by the Spaniards in England as guilty of Robbery and Piracy but was acquitted because he acted by Commission from one of the Darien Princes which is an undeniable Evidence that this Prince and his Countrey were judged to be independent on the Spaniards The Spaniards may also have wrought Mines of Gold and Silver within the Isthmus but no such possession can support their Complaint The nearest possession of Mines that they can pretend was in Captain Diego's Country on the Gulf of Darien more than 15 Leagues distant from the Company 's Settlement Neither did the Spaniard get these Mines by Conquest or Purchase but by a plain stipulate Permission from Captain Diego and his people which changed not the Property And upon Breach of Conditions the Spaniards were quickly cast out so that when the Company came to settle on the Isthmus it was fully cleared of the Spaniards all their pretences Carthagena Portobello and Panama are adjacent to and do in a manner environ the Isthmus of Darien But that this Vicinity gives to the Spaniards no Claim of Right is evident from many Instances Tangier Cheuta and Mamora ly in the Bosom of the Empire of Morocco and yet belong to European Princes The English and French have Neighbouring Settlements upon the River Gambo in Africk and all along the Coast of Africk the English and other European Princes have their Settlements intermixed and contiguous where they Trade with all Freedom without any mutual Impeachment The English and French have both Plantations upon the Island of Newfoundland and the Dutch in time of Peace settled upon Long-Island and the adjacent Countrey environed on all hands by the English Plantations and yet no War ensued but the Dutch continued their possession till the Exchange was made for Suranam The Spanish Fleets do necessarly pass betwixt the Cape of Florida belonging to the Spaniards and the Bahama Islands yet the English possess themselves of the said Islands and have also several times settled at Port-Royal in the bottom of the Bay of Campiechy in the Gulf of Mexico for cutting of Logwood and have thence removed and settled again at their pleasure The French have also endeavoured to settle in the Bay of Mexico and lately and more closely in the Samblas Islands on the Coast of Darien They likewise settled a Colony in Petitguavis in Hispaniola and in Guiana on the Continent notwithstanding of the Vicinity of the Spaniards The Dutch and Portuguese have their Respective Plantations on the Coast of Brasil to which the Spaniards pretend Right as well as to the Isthmus of Darien such as the Islands of Curasao and Bowane near to Carthagena on the East and Suranam and others upon the Continent and yet never quarrelled It is granted that the Spaniards in their excessive Jealousie and upon the Pretext that by Treaties none were to Trade in their Ports or Harbours such as Carthagena and Porto-bello without their Licence have seized and made prize of the Ships that they have found upon the Coast betwixt the said Places But first they did this upon pretext of the said Treaties Secondly Injury and Violence make no Right And thirdly it is most certain when the Spaniards have been overcomeand beat off in such Attempts and forced to suffer both Dutch and English to cut Logwood on that Coast yet the Spaniards did never complain of any Violation of Right as knowing perfectly they had none as may be seen in Dampier Wafer and other writers The Spaniards at first endeavoured to amuse the World with the Popes Gift of the West-Indies and after the King of Spain's becoming King of Portugal and in the Right of that Crown claiming the Benefit of the Popes Gift of the East-Indies he assumed the Magnifick Title of Indiarum Rex Yet he was never able to make good his Right or exclude others by these empty Names but in all Competitions the Pretentions of Spain did either resolve in Occupation of what was void or surrendered or conquest of what was possess'd by Natives and that Title was never much regarded either by Spain Portugal or any other Prince Popish or Protestant The second Head which may be pleaded for the Spaniard is the Treaties that have been betwixt the Crowns of England and Spain But 1mo Granting that the Kingdom of Scotland will never disown any Treaty betwixt their King whom GOD long preserve and prosper may be concerned where are these Treaties that exclude either the Scots or English from possessing Darien if not inhabited or where Inhabited with consent of the Inhabitants If the Spaniard propone upon these
Treaties they must produce them 2do All to be found in the latter Treaties betwixt the said Crowns such as the Treatie 1667 and the Treatie 1670 which may be understood to be the only Regulating Treaties in this Matter is that in the former The King of Spain obliges himself not to molest the King of England or his Subjects in their Plantations in America these particulars enumerated not by way of Exception but because some of them had been contraverted And that in the other Treaty 1670 It is agreed in the 7th Article That the King of Great Brittain and His Heirs and Successors shall have hold and possess with full Right of Empire Property and Possession all Lands Regions Isles Colonies and Lordships situated in the West-Indies or any part of America which his said Majesty or his Subjects did then hold or possess So that no contraversie on any pretence was thereafter to be moved on that Subject And in the eight Article That the Subjects of the said King should abstain from all Commerce and Navigation in the Ports and Places having Forts Castles or Staples for Merchandise possessed by either of them To wit That the Subjects of Great Brittain should not Trade nor Sail to the Ports nor Places which the King of Spain hath in the VVest-Indies nor the Subjects of the King of Spain Trade nor Sail to the Places which the King of Great Brittain there possesses without Licence given hincinde in the Terms therein set down By which it plainly appears that all agreed to was and is That the Kings and their Subjects respectively should forbear Injuries as likewise to Trade and Navigate without Licence in the Ports Castles and Staples to either of them belonging which can no ways exclude the King of Great Brittain and his Subjects from Trading or making new Plantations in to such Places in America as either are not inhabited or where the King of Spain hath no Right The Spaniard may positively pretend that the Treaties provided to the King of England and his Subjects of certain particular Places and generally what they then possess'd in the West Indies may be construed an Exception and import as it were an Acknowledgement that the rest of the West Indies did belong to the Crown of Spain But 1mo The Places provided to the King of England and his Subjects are only enumerate for the greater Caution and Security because some of them had been taken from the King of Spain and thereupon contraverted And 2do It is evident by the foresaid eight Articles the Reserve of Trade is equally and mutually provided and restricted to the King of Great Brittain and the King of Spain their respective Possessions so that nothing can be elicite from these Treaties to give the King of Spain the Right to the whole West Indies excepting the foresaid places possessed by the King of England nor to ty up the King of Brittain and his Subjects from making new lawful Acquisitions in these Parts But it is agreed to That they should secure the one the other in their respective Possessions And thus these Treaties have been always understood nor have they hindred the English to enlarge their Possessions in the West Indies upon 〈◊〉 Occasions which certainly belongs as much if not more to the Scots 2d MEMORIAL By the same THe Company of Scotland Trading to Africa and the Indies having by the other Memorial endeavoured to clear the Justice of their Proceedings as to their Settling a Plantation in the Isthmus of Darien in America do further in all Humility Represent 1mo That there was never any Enterprize of a more National Concern than the foresaid Plantation is to the Kingdom of Scotland the Erecting and Establishing of the said Company was the Unanimous Desire and Satisfaction of the Nation all Persons almost and Families of any Consideration did readily subscribe for and advance considerable Sums for carrying on the Designs of the Company much above what could have been expected The Success the Company hath had in overcoming Difficulties and fixing upon a Place that appears so advantageous to Trade and Commerce hath likewise raised the Expectation and Desire of its Continuance and Prosperity to a far higher Degree than ever was known in any Business of this Nature And Lastly it is most certain That nothing could be more Grievous and Afflicting to the whole Nation without Exception than that this Undertaking so far and so happily advanced should meet with the least Discouragement especially from such whose Countenance and Assistance is so earnestly craved 2do It appears from the whole Circumstances of this Affair That the English Nation can have no Prejudice but rather Advantage by the foresaid Undertaking For First If it shall be profitable the Profit evidently redounds to their Fellow Subjects and good Neighbours Secondly The English have free Access to come in and partake of the Profit when they please Thirdly The Product of the Place is probably like to consist neither of Tobacco nor Suggars the great Commodities of the English Plantations but of such Goods and Commodities as the English do not afford Fourthly It is true That by the Act of Parliament and Patent of the Company all Ships imployed by the Company are to return to the Kingdom of Scotland with their Effects But it is as true That the said Act and Patent did bear the Liberty and Priviledge of a Free Port and Mercat for all Strangers that shall be pleased to Trade with them who are not under the foresaid Obligation but may come and go with their Return whether they please which cannot but be of Advantage to the whole English Plantations as to a Free Course of Trade Fifthly It is likeways granted That by the foresaid Act of Parliament the Ships Goods and Effects whatsoever belonging to the said Company are declared free of all Customs and other Duties for the space of 21 Years but then four of the said Years are already run and this small Encouragement was needful to begin so great a Work whereof probably the Profit can little more than equal the Expenses for all that space And besides the Duties of Tobacco and Sugar not of the Growth of the said Plantation are excepted and not discharged And also it is evident That if the Plantation prosper the foresaid short Discharge of Customs and other Duties will be richly compensed by the great Increase of Trade and consequently of His Majesties Customs that may for thereafter be thence expected And Sixthly The Company and Plantation cannot reasonably threaten any Diminution of His Majesties Customs in England but on the contrary this Plantation promising a new Trade far different from the Trade of all the English Plantations and offering to all the Liberty of a Free Port must rather increase the Trade of England both to the King and Subjects Advantage As for the Objection That the Company by the Immunity they have from Customs and Duties may Import and then as freely Export