1st. MEMORIAL.

THe Establishment of the Company of Scot­land, Trading to Africa and the Indies, was first prepared by an Act of Parliament 1693. In­viting and Encouraging Persons in General, to enter into Societies, and Companies, for carry­ing on a Trade to whatsoever Kingdoms, Coun­trie or parts of the World, not being in War with His Majesty, and thereafter perfected by the Act of Parliament 1695, and a Charter thereon under the Great Seal, whereby the said Company was fully Settled with all the Powers, Priviledges, and Immunities in use to be granted in such cases, and particularly with Power to plant Colonies, and build Cities, Towns, and Forts in Asia, Africa, or America, upon Places not Inhabited, or upon any other Place, by Consent of the Natives, and Inhabitants thereof, and not possess'd by any European Prince or State.

The Settling of this Company was so accept­able to the whole Kingdom, abounding always with Men, and of late Years, very desirous to enlarge Trade and Commerce, That the Com­pany's [Page 2]Books being once opened, Subscriptions for a vast Sum were compleated long before the Day prefix'd by the Act of Parliament, and there were few Persons or Families of any Account within the Kingdom, who were not therein par­ticularly concerned.

But tho' the Subscriptions were soon compleat­ed, and the Advances made, as readily as pro­pos'd; yet the Directors and Managers, did proceed with great Deliberation, not being more Cautious to Conceal the Place where they were design'd for, than Careful to make such a Choice, as might be exactly in the Terms of their Act and Patent, To wit, Either not Inhabited, or freely Consented to, by the Natives, and not possess'd by any European Prince or State, and so lyable to no Exception.

In pursuance of these Resolutions, The Com­pany prepared Men, and Provisions, and set out their Ships, and in the Month of November 1698, arrived on the Noth-side of the Isthmus of Darien in America, they pitched upon a Place never be­fore possess'd by the Spaniards; and after formal and distinct Treaties, obtained the Consent and Good-will of all the Neighbouring Natives and People.

The Spaniards and French raise a Clamour a­gainst the Settlement, as an Invasion of the Spanish Possessions and Dominions, in as much as the Place where the Company hath fixed, lyes as it were in the Middle and Bosom of the Spanish Countries, having Carthagenae on the East, and Porto-Bello on the West, and Panama on the South, which is also alledged to be contrary to the [Page 3]Treaties betwixt the King of Great Brittain and the King of Spain, whereby all these Countrie's are yeilded and conformed to the Spaniards

If these parts of America had been wholly Void and Uninhabited, when the Spaniards made their first Discoveries, and Plantations there, the Question had certainly proceeded upon the head of Occupation, the only Ground acknowledg'd by all Lawyers to determine the Property of all Waste and Uninhabited Countries, where a formal Division hath not Interveened, as Grotius in particular, in his Second Book de jure Belli doth abundantly clear, and then the Spaniards must have further Subsumed, That as they found these Countries Waste, so they were the Occu­piers and Possessors thereof; and in Special, that they were the first Occupiers and Possessors of the Isthmus of Darien, and the Place where the Company hath Settled, it being most certain, that Occupation gives no Right, save in so far as the Real and Actual Possession extends.

But seing on the other hand, it is Nottour, and by all Acknowledg'd, That the Spaniards did not find these Parts Waste, and Uninhabited, this Argument must necessarly fall; and all that the Spaniards can now Plead, is either present Posses­sion, which the Company's Patent owns to be a sufficient Right to any European Prince or State, or the above-mention'd Treaties, as exclusive of the King of Great Brittain's Subjects.

For clearing then the Claim and Point of Pos­session, The Company denies that ever the Spaniard had any Possession of the Place where they have Planted; and its obviously Incumbent [Page 4]to the Spaniard, if they alledge Possession, to prove and instruct their Alledgance for the Com­pany's Argument being Negative, viz. That the Spaniards did never Possess the Country where the Company hath Settled, it Undeniably proves it self, as all Lawiers affirm, unless the contrary, to wit, The Spaniards Possession, be evidently made out and proved, which is impossible; Nor do the Spaniards pretend to prove the same; But their Alledgance is, That in these large Coun­tries of America, it were plainly Capricious to re­quire the Actual Possession of every particular Place; But since they have the Uncontraverted Right and Possession of Carthagena, Porto-Bello, and Panama, which are the Extremities that in a manner environ the Isthmus of Darien, their Possession of these Places, must infer a Possession of the Interjacent Country in which the Com­pany hath Settled, and consequently, that the Company hath Encroached upon, and Invaded their Right: And further, its said, That the Spaniards have actually possess'd Gold and Silver Mines in Darien, much nearer to the Company's Settlement than Carthgena, or these other Places, and have constantly been in use to Seize and make Prize of all Ships coming upon the Coast, be­twixt Porto-Bello and Carthagena, as Invaders of their Possessions, tho' these Ships did really pertain to Friends and Allies:

To all which, It is answered, 1mo. That the above-mentioned Places belonging to the Spaniard, are very far distant from the Settlement of the Company, Carthagena above Fifty, and Porto-bello and Panama above Thirty Leagues, which Di­stances are more then sufficient to render Coun­tries [Page 5]distinct, both as to Right and Possession. 2do. It's certain, that Carthagena, Porto-bello or Panama, cannot be understood to have unlimited Territories; if then their Territories be limited, it belongs to the makers of the Objection to show, that the Limits of these places do reach to, and comprehend the Place possess'd by the Company, which neither the Spaniards, nor any for them, will ever be able to prove, by the Law of Na­tions, or any known Rule, or Custom in such Cases.

It hath already been Notic'd, That tho' these Countries had been wholly Void, when the Spaniards begun to Plant there, they could only by their Possession have appropriat as far as they did possess, and that what was not possess'd, would have 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 [Page 6]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 [Page 7]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 [Page 8]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 [Page 9]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, [Page 10]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 [Page 11]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 [Page 13]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, and so undersell any other Nation, during that Im­munity: Its Answered, That the Company in England have almost the same Priviledge, since, if they please to Export after their Return from the Plantations, they are allowed to do it freely with a full Draw-back, excepting only 3 or 4 per Cent.

3tio, It is with Submission Represented, That in all Appearance, if the Company of Scotland had not seized the foresaid Post in Darien, the French had certainly taken it: And now, that it is discovered to be so advantageous for Trade, it is not to be doubted, but that the French, who shew such Earnestness to have the Scots excluded, will certainly, if any such thing should happen, possess themselves of it, not only to the Hurt of the English Plantations, but to the far greater Prejudice, if not the Ruin of the Spaniards In­terest in the Indies.

And therefore, All things truly and justly con­sidered, it is hoped, that not only the English will become more and more favourable to so good a Design, but that even the Spanish will the more easily acquiesce to Reason and Justice, that they see a more Powerful Competitor ready to catch hold of an Advantage, that cannot be so safe for them in the Hands of any other Nation, as in the Possession of the foresaid Company.

3d. MEMORIAL, By the same.

THe Company of Scotland Trading to Africa and the Indies, being endued with very ample Priviledges, hath settled a Colony at Dari­en, [Page 15]a Countrey very fit and proper for that pur­pose, not only for the Richness of the Soil and Mines, but likeways by its Situation for Trade.

The Spaniards have the most considerable Inte­rest and Plantations in America, and are not wil­ling, that any other Nation, or People should have share of the Advantages and Benefits they draw from thence, which is not Singular in the present Case, because they have ever withstood all Planters, either upon the Continent, or Ame­rican Islands, by Acts of Violence and Hostility, as if every Settlement in America were an En­croachment upon the Right of Spain.

There is lately a Memorial offered in behalf of the King of Spain, to one of the Secretaries of State of the Kingdom of England, to the Effect following.

THe Charge is great, and if it can be made appear, that the King of Spain is Invaded, as is pretended, it is but Reason there should be just Reparation.

It must be acknowledged, That it is a fair way of dealing, that the Spanish Rights and Pre­tensions are thus asserted by Memorial, and an Opportunity afforded, and that the whole World may be satisfied, that His Sacred Majesty, the King of Great Brittain, hath granted no Patent to His Subjects in Scotland disagreeable to Treaties with Spain, and that the Scots Company have not exceeded the Limits of their Patent, to the preju­dice of Spain.

There may be many Reasons offered to satis­fy Spain, and all other Nations of Europe, except the French, that if the Scots had not settled in that Isthmus, or if they were now to remove from it, the same would be possess'd by another People, more dangerous to the Interest of Spain, and in due time it may be made appear, that the Scots Settlement is for the Honour of the King, & the Interest of England, but the present design is only to satisfie the World, that the Patent granted by His Majesty, was agreeable to the Treaty with [Page 17] Spain, and that the Scots Company have not ex­ceeded the Terms of their Patent, and that they have Right to what they possess in the Isthmus of Darien, according to the Law of Nations, and that most part of the Nations in Europe have settled Plantations in the American Islands, or Continent, upon no other Foundation than the Scots.

It is the Interest and Policy of all Governments, to improve the Natural Product of a Countrey, and to encourage Forreign Trade.

The Experience of all Nations makes appear, That nothing contributes so effectually to these ends, as Forreign Plantations.

Scotland is amongst the last of the Nations of Europe, in settling Forreign Plantations, tho' there be few that can propose more Advantage that way, because the Nation affords many Sub­jects of Manufacture, and abounds in Men, which is the greatest Riches, as well as the Strength of a Nation; Yet for want of Forreign Plantations, many have been useless and burdensome to their Native Countrey, and have been constrained to serve Abroad in Forreign Wars, or into Plantati­ons of other Countreys: And it is to be observed, that wherever they have planted, they have en­creased and multiplied, as particularly in Ireland; but no part of the Benefit does accrue to their Native Countrey.

The Nation has very long desired Forreign Settlements of their own, and did make some At­tempts that way, which proved ineffectual for want of due Encouragement, but His Sacred Ma­jesty, as Father of his Countrey, regarding the Welfare of it, did endue the same with suteable Encouragements by the 32d. Act, Par. 1693. and by the 8th. Act, Par. 1695. Yet both these Laws [Page 18]were granted with a due regard to all former Planters; And did only allow them to plant Colonies, build Cities, Towns, and Forts in Asia, Africa, and America, upon Places not in­habited, or in, or upon any other Place, by Consent of the Natives, or Inhabitants there­of, and not possessed by any European Sove­reign, Potentate, Prince or State.

By these Acts of Parliament, and Patent con­form, His Majesty did sufficiently provide, that the Possession of no European Prince should be in­vaded or molested: And if Spain be injured, the Company must acknowledge, that the Injury flows from them, by exceeding the Limits of their Patent.

It remains to be cleared in behalf of the Com­pany, that they have strictly observed the Rules prescrib'd by the said Acts and Patent.

The King of Spain's Title to America by the Pope's Bull, is rejected by the common Consent of all the Princes and States in Europe, who could not have settled there without Injury to Spain, if the Pope's Bull had been a sufficient Title; and neither Spain or Portugal hath relyed upon that Title, the one having planted in the East-Indies, and the other in the West, without regard to it: And this Title is sufficiently discussed by Grotius in his Mare Liberum, Cap. 3. and will never be in­sisted on any where, and least of all in Brittain.

America being inhabited by Natives, before Spain or any European People settled there, it is most certain, that the Right and Property did o­riginally belong to these Natives, because the Earth was created for, and freely given by the Creator to the Children of Men, and the most Ancient and Uncontraverted Right of Property [Page 19]of the Earth is by Occupation and Possession, which is an outward Act of the Body quasi positio pedis, and not an inward Act of the Mind, which cannot be known to others, beside many Mens wills might concur in wishing and liking the same thing, but their Bodies cannot concur in posses­sing it, and an outward Act of Possession warns others to abstain.

The Property that originally belonged to the Natives, could only be transferred from them to Spain by Conquest or Consent, and Spain can pre­tend neither of these Titles to the Isthmus where the Scots have settled.

It is alledg'd for Spain, That they do possess the Isthmus of Darien, in as far as they are undoubt­ed Masters of the Bay of Panama, and the whole Coast of the Isthmus upon the South Sea: They have likewise Carthagena and Portobella on the North Sea, and they are Masters of the whole Countrey betwixt Carthagena and Portobello, and so must be reckoned Possessors of all, because Possession doth not require the particular Occupation of every part of a Countrey, but Occupation of one part is a sufficient Act to demonstrate the Will and In­tention to possess the whole Pertinents: And the Spaniards having possess'd these two Extremes, the middle Space belongs to them, especially seing they have also settled in other Places betwixt these two, as their Conveniency did require, tho' they did afterwards quite these Possessions, as particularly they once possessed Nombre de Diot, and did also plant within the River Datien, and tho' they did quite these Possessions, they did not relinquish or repudiate their Right, but being better informed, they choosed more convenient Seats, but still reckoned themselves Proprietors of [Page 20]the whole Isthmus, and divided the same in seve­ral Jurisdictions. And the Natives upon that Isthmus were a mean inconsiderable People not to be regarded, who could not be thought to re­tain any Right or Property in Opposition to the Power of Spain.

They further add, That Spain hath been consi­dered as undoubted Proprietors of the Bay of Mexico, and of that Isthmus, by other Nations in Christendom, and most particularly by the English, as is well known, and will clearly appear in two remarkable Instances.

Several English Merchants having advanc'd their Stock, for settling a Plantation at Port-Royal in the Bottom of the Bay of Campechay, for cutting of Logwood, they desired the Countenance and Pro­tection of the Government, for carrying on this profitable Trade: The Case was considered by the Council of England, and it was not found just, to allow the Protection of the Government, but were only left in a Permissive State, to manage their Trade upon their Peril.

The Second Case, which comes closer to the present Question, was a Proposal by certain English Undertakers to settle in Darien, as the Scots have done, which being brought to the Council of Trade of England, and by them laid before the Lords Justices in His Majesties Absence, and trans­mitted to the King himself, Upon a full Consi­deration of the Case, that Project was thought to be an Encroachment upon Spain, and let fall.

The King himself, and Council of England, be­ing satisfied of the Right of Spain, in these par­ticular Cases of English Undertakers, the same judgment ought to follow, in relation to the Sco [...] Company.

To all that is alledged, it's shortly and clearly Answered, That Spain hath neither Right by Treaties nor Possession to the Countrey now pos­sess'd by the Scots: And, 1st. Tho' it be acknow­ledg'd, that the Spaniards have more Strength, and larger Possessions on the South, than upon the North Sea, yet no Possession there can be exten­ded to the North-side of the Isthmus, being pos­sess'd by a People Independent, who never re­ceived the Spaniards, or became subject to them: The Spaniards indeed have made great Settlements upon the South Sea, and in so far as they have possess'd, have restricted the Natives to narrower Bounds; but the Indians still continuing to possess what remains, Possession on the Coast, or the Mouths of Rivers on the South Sea, can never be extended to the North Coast: And the Spani­ard can condescend upon no Ground in Law or Reason for such an Extension, hor can they make appear, that what the Scots possess is Part and Per­tiennt of their Plantation, especially considering that the Isthmus of Darien is naturally divided by a Ridge of high Hills running from East to West.

Neither doth the possession of Carthagena and Porto-bello, give Right to the interveening Coun­trey, which is above 80 Leagues or 240 English Miles, and these particular Forts, as well as the whole Spanish Plantations on the South Sea, be­ing fixt without consent of the Natives, who con­tinue their Possession in the interveening Coun­trey, without any Subjection to, or acknowledg­ment of the Spaniard: It lyes upon the Spaniards to condescend by what Rule the Limits of these Possessions can be so far extended.

As to what is alledged, That the Spaniards have other Plantations nearer to the Scots Settle­ment [Page 22]from which they removed, but still retain Possession and Jurisdiction.

It is Answered, Admitting the matter of Fact as alledged, it comes to nothing; For still it is to be remembred, That the Spaniard will not pre­tend to have planted with the consent of the Na­tives: Nor, that the Darien Indians have ever ac­knowledg'd Subjection; but they planted by Force and Violence: And therefore, whatever Forts they made in the Isthmus of Darien, the mo­ment that these Plantations were left, the Right and Possession of the Natives did return.

It is freely acknowledged, That Possession lawfully obtain'd by an outward Act of the Body, is retain'd by Acts of the Mind, if no other pos­sess; but when Possession is taken by way of Fact, and not actually detained, the Right and Possession returns to the lawful Proprietor.

2. This alledged Possession of Nombre de Dios, and in the River of Darien, is only pretended to have been at their first Settlement in America, be­fore they possess'd Carthagena and Porto-bello.

3. None of these pretended Settlements are within 20 Leagues of the Scots Colony; And tho Spain had yet Plantations there, the Limits could as little be extended to 20 Leagues beyond the actual Possession as to a Thousand: Nei­ther can the Spaniards prove any Act of Jurisdicti­on over the Darien Indians, whatever Title they may think fit to give to Governours or Vice-Roy's in America, the Scots do neither know, nor are oblig'd to notice the same: If Titles were e­nough, the King of Spain assumes a Glorious Title of Indiarum Rex, but he has no more Jurisdiction over the Darien Indians, than in the Plantations of any other European Prince.

As to what is alledg'd upon the Opinions given by the King and Council of England, in relati­on to His Majesty's English Subjects projecting Settlements in America, The Circumstances of the Projects, and the Motives of any Resolution taken in them, are wholly unknown to the Scots, and nothing can be founded on such Matters of Fact, unless the whole Circumstances were Au­thentically instructed or acknowledg'd, but what­ever was thought proper in these Cases, nothing can be inferred from thence to determine this.

A Project is to be regulated either by Law or by Conveniency; And it's very ordinary and sute­able, That his Majesty and the Government may discourage the Project of an Undertaking, if not Convenient, tho lawful: But when a Pro­ject is Undertaken, Carried on, and a Settlement made in pursuance of express Acts of Parliament, and conform to a Patent, there's no more place to Deliberate what is fit, but what is Lawful.

If the whole Circumstances were known, many Disparities might also appear, and from the bare relation of the Case of the intended Settlement in the Bay of Campeohay a manifest Disparity is evident.

The Bay of Campechay is in the Province of Nicaragua, in the Diocess of Chiapo, which Pro­vince and Bishoprick, are part of the Ancient Empire of Mexico, which was conquered by Spain.

By the Conquest of Mexico, the King of Spain as Conquerour, had Right of Sovereignty as far as the Dominions of Mexico did extend, and the Right and Possession of the Conquered People may reasonably be reckoned to become the Pos­session of the Conquerour; And therefore a Settle­ment in Nicaragua or Bay of Campechay might be [Page 24]reckoned a down Right Encroachment upon Spain, which cannot be drawn in Consequence to a Settlement upon Darien, because the Spaniards can condescend upon no Title or Right beyond their actual Possession; for the Dariens were ne­ver subdued, nor did they ever depend upon Mexico or Peru, or any Prince or People subdued by the Spanirds.

And further, whatever be urged from these Cases, yet it can be made appear, That the Un­dertaking to settle in Campechay was effectual, and the Cart is marked Port-Royal English-Colony; and 'tis known that the English cutt Logwood at Cape-Catach in Jucatan till the Charge of Carriage ren­der'd it unprofitable, and thereafter Settled at Port-Royal for the same Effect, where there is plenty of Logwood appropriated to the English.

It is also acknowledg'd, That the Darien-Indians are no powerful People, or able by themselves to resist the Impressions of Spain, but the point of Right and Property is the same in Rich and Poor, Strong and Weak, and they might lawfully transfer their Right, and assume the Scots or any other Nation to support or maintain the Right and Possession of that Isthmus, in as far as it was free from the Spanish Dominions.

Yet the Dariens were not wholly neglected by the Spaniards as inconsiderable, for there have been frequent and almost constant Wars between them and Spain, in which the several Captains and Carriques have joyned together, and there is a fa­mous Case of Barth: Sharp, who being accused in England as guilty of Piracy and Robbery commit­ted upon the Indians, he defended himself as acting by Commission from Independent Native Indians then at War with Spain, and was acquitted.

The Right of the Scots Colony, as flowing from the Native Indians, is already sufficiently cleared, according to the most Ancient and Authentick Laws of Property, acknowledg'd by all Nations: And for a further Evidence and Demonstration of what has been asserted, and already sufficient-proven the Settlement of the English, French, Danes, Portugueses, and Dutch, will all be found to be Bottomed on the same Ground.

The Spanish are the most Ancient Planters, and if Spain pretend to any Universal Title, either by Occupation of a part, or by the Popes Gift, or any other Right, he thereby excludes the Claim of all Posterior Planters, either in the Continent, or American Islands, which could not be thought to be separate and indifferent Domi­nions: And if Spain recede from any Universal Title to the whole, it will not be possible to ex­tend his Claim beyond his proper Possession, or the Possessions of these that are Subduced and Conquered by Spain: And if this be called in Question, it is expected, That some other Title will be condescended upon, that may clear the Limits and Extent of the Spanish Colonies, so as to make a Difference betwixt the Scots Settlement in Darien, and the Settlement of other Princes in the American Islands or Continent.

The Empires of Mexico and Peru are known, and may be yielded to Spain, but the remainder of that vast Countrey was anciently possess'd by little Princes, or rather Captains or Heads of Fa­milies or Cariques, who have no Dependance up­on each other, nor upon any Prince or Potentate, but by Leagues and Agreement for mutual De­fence. Thus it is known, That the Land of the Amazons was possess'd by the Natives; And it is [Page 26]remarkable, That upon the Banks of Amazon, there are Fifty different Nations: So it is in Brasil, in Chili, Paragua, Florida, Carolina, Virginia, and generally over all the Continent, as well as in the Islands of America, and likewise in Asia and Africa: And therefore, European Princes have planted promiscuously, as they found Convenien­cy, without Injury or Encroachment upon for­mer Planters.

The English possess the Continent from New-England to Carolina, without the Interposition of Colonies belonging to any European Prince, yet the Dutch, in time of Peace, set down upon Long-Island, and the Countrey now called New-York, betwixt New-England and Pensilvania, and conti­nued to possess till the end of the War 1667: At which time, New-York was exchanged for Suranam.

The Spanish Plate-Fleet do necessarly pass be­twixt Cape-Florida and the Bahaman-Islands, yet the English possess these Islands, which the Spaniards did mightily resent, and used the English very bar­barously upon it, yet Spain not being able to justi­fy any unlawful Title, the English did maintain their Possession.

Whatever be alledg'd, That the Government did not interpose for establishing a Logwood-Trade, yet it's certain, that the English did ap­propriate the Logwood at Cape-Catch in Jucatan, till it was exhausted, and they afterwards settled at Port-Royal in the Bay of Campechay, for carrying on the same Trade, which was never question'd by the Spaniards.

The French have several times endeavoured to settle in the River de Spiritu Sancto in the Bay of Mexico, and also the Samballo-Islands upon the Coast of Darien, and have actually settled a Colony in [Page 27] 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 [Page 28]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 [Page 29]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, [Page 30]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 its 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 [Page 31]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 particular Rivers, Creeks, Bays, &c. in America as if neither Party claimed Universal Title over all.

The 15th. Article of the said Treaty pro­vides, that the same shall in nothing derogate from any preheminency, Right or Dominion of any Confederate in the American Seas, Chan­nels or Waters, but that they have and retain the same in as full and ample manner as may of right belong unto them, providing al­ways that the Liberty of Navigation ought in no manner to be disturbed.

This Article relates to certain Preheminencies and Priviledges claim'd by Spain in the American Sea, which by the Treaty was not yeilded, but left in the same state as formerly; and if the King of Spain had pretended to an Universal Right o­ver all America, in so far as is not possess'd by o­ther European Princes, why was he more carefull to preserve his Claim of Sovereignty in the Seas, and forgot his Dominion upon the main Land? There can be no other reason for it, but because there was no such thing in prospect, as appears by the whole Tenor of the Treaty.

Nothing hath been alledged in behalf of Spain to make any disparity betwixt all the Settle­ments that have been made in America by the Sub­jects of the King of Brittain or other Princes, ex­cept the Treaty 1670: Which when duly consi­dered, makes no disparity at all. For albeit the [Page 32]Possession of the King of Brittains Subjects be there­by confirmed; yet it will not be acknowledg'd by the King of Great Brittain, or any other Prince that the Settlements made by their Subjects were illegal or violent, untill confirmed by the King of Spain, and all Nations who have Planted there must sustain and justify the Scots Settlement, or acknowledge that the Settlement of their own Subjects were injurious to the Right of Spain.

It is not, nor can be denyed, that the Dariens have been at frequent War with Spain, altho' they pretend, that the Dariens were rather Rebels than Enemies. That is only for to beg the Question, for the Natives having the Ancient undoubted Right, it must be instructed, that they became Subjects before they could be Rebels.

And tho' it be alledged, that what was done in Sharp's Case was reckoned a Jest, and that he was not acquitted upon that ground, as acting by Commission from the Dariens; yet the matter of Fact is certain and known, and was indeed re­marked by all England, that Sharp join'd with the Dariens, did commit acts of Hostility and carried away great booty from the Spaniards, and was pursued for Restitution in England, and did pro­pone a Defence. That he acted by Commission from an Independent People, and was acquitted by a competent Judicature in England.

These matters of Fact being all acknowledged, it must be thought that a Decision in the way of Justice was no Jest, but according to the Law of the Nation.

To Conclude and Sum up the whole Matter, The Scots did not move one foot, untill they ob­tain'd two Acts of Parliament, and a Patent in their favours. These Acts (tho' very ample) [Page 33]were framed with a just regard to former Plan­ters, who by the express Tenor of the said Laws were not to be invaded or molested in their Pos­session; even the just Right and Property of the Infidel Natives was considered, and the Under­takers not allowed to dispossess them by Force and Violence, but to Plant with their consent: Upon the faith of these Laws, a greater Stock was advanced in Scotland than ever was raised by any other Nation, upon the first project of a Forreign Plantation; the Directors of the Com­pany did very narrowly and exactly consider all the Treaties with Spain, and pitched upon a place, that the whole World considers to be of a great value for founding and raising a profitable Trade to the Honour of the King who (as the Father of the Countrey) did endue them with ample and just Priviledges, to the encrease of the Strength and Riches of the Isle of Brittain, which is all under the Government of one Monarch, of one Religion and Interest, and can have no dif­ferent Friends or Enemies without endangering the whole. In one word, The Scots Company have acted deliberatly, for advantage to them­selves, the Nation, and the Isle of Brittain; they have only used their own Right and have wronged no Nation or People, nor exceeded the Limits of their Patent in any circumstance. And if any will stand up for the Interest of Spain, and call in question the matters of Fact and principles of Law above asserted, which are generally known and need not to be confirmed by particular Citations. they may assuredly expect that what has been affirmed shall be made further clear and evident beyond contradiction, and whatever Obstacles [Page 34]or Difficulties have, or may fall in, Ardua quae Pulchra, the undertaking was deliberate, just for the interest of the Nation, and with more regard to the Right of former Planters and Natives than any former Project of that Nature.