60 | To The Board Of Trade

    Boston Aug 6, 1761

    My Lords

    Since my arrival here, about this time twelvemonth, I have been much employed in defending the Court of Admiralty & the Custom House against the attacks of a party formed & supported by Mr Barons Collector of this port. I was Very unwilling that Your Lordships should be troubled with this business hoping that Mr Barons would return to a sense of his duty; or at least that the Board to whom he was immediately subordinate would have time to interfere with proper effect. Nevertheless I informed Mr Pownall of these proceedings, & transmitted to him duplicates of such papers as I found would be laid before the Commissioners of the Customs, that they might be ready for your Lordships perusal if it should be thought necessary.294 But the Mischeifs that have been foreseen & foretold to be arising from this combination become so serious, that I find myself obliged to address Your Lordships immediately upon this Subject.

    The Means which seem now most likely to be pursued to destroy the Court of Admiralty & with it the Activity of the Laws of trade are to bring frequent Actions at Common Law concerning the Business determined in the Customhouse ^Court of^ Admiralty or proceeded upon in the Custom house; & by overhawling the Decrees of that Court before a Jury, & bringing Actions of the Case upon the Acts both judicial & extrajudicial of the Custom house officers, to render it certain Ruin for such officers to do their Duty. How probable it is that this Scheme will succeed without the extraordinary intervention of the Kings Authority at home will appear from what follows.

    There are now depending in the Common Law Courts here 5 Actions of this kind; 3 of which are in Mr Barons’s own Name; all which I will state to your Lordships in order, with observations on the ^probable^ consequences of them.

    I Gray295 agst Paxton.296 This is an Action brought by the Treasurer of the Province against Mr Paxton a diligent Custom officer, of which I have allready given full information,297 it being one of the first fruits of Mr Barons’s confederacy, in which I had a principal share of trouble, it being particularly designed by some of Mr Barons’s friends to involve me in a dispute with the General Court which however I prevented. For this I must refer Your Lordships to the Votes of the House of Assembly & other papers allready transmitted.298 This Cause is determined against Mr Paxton in the inferior Court & he has appealed against that determination to the Superior Court.299 If Judgement should be given against Mr Paxton in this Court also, these two points will be settled: 1, that Money paid in pursuance of a decree of the Court of Admiralty having jurisdiction in the Case & unappealed from, may be recovered ^in a Court of Common Law^ by other persons & for other uses, notwithstanding such decree. 2 That Money given by Act of parliament to His Majesty for the use of the province can be recovered by the provincial Treasurer ex officio, without the intervention of the Kings Attorney or Any person acting by immediate Authority under his Majesty.

    II Erwing ag Cradock. This is an Action brought by the honble John Erwing Esqr one of the Council against Mr Cradock heretofore & now temporary Collector of this port.300 This Case is this: Mr Cradock about 16 months ago, as collector, seized a Vessel of Mr Erwings charged with contraband trade & libelled her in the Court of Admiralty. Mr Erwing appeared personally in Court & prayed leave to compound, which, being agreed to by the Governor & Collector as well as the Kings Advocate,301 was allowed by the Court at one half of the Value, which upon appraisement was ascertained at above £500 sterling. This Sum Mr Erwing paid into Court; & it was equally divided between the King the Governor & the Collector. Mr Cradock remitted the Kings Share to the Commissioners of the Customs; The Governor received his third, & Mr Cradock his own. And now Mr Erwing has brought his Action against Mr Cradock for damages accrued to him by means of this seizure; & in the inferior Court has got a Verdict for the sum of near £600. This is also appealed to the Superior Court;302 & if it should be so determined there, it will be concluded that whatever sum a Man pays into the Court of Admiralty, tho’ decreed in pursuance of his own petition, may be recoverd again at common Law with damages. The Consequences of this in regard to the Execution of the Laws of Trade are obvious.

    III Barons ag Lechmere. This Action is brought against Mr Lechmere Surveyor general of the Northern district &c by Mr Barons for the former’s suspending him. The day upon which Mr Barons received his suspension, He arrested Mr Lechmere in an action for 7,500 sterling damages, &, to the shame of the Laws of this Country, held him to bail. I have before transmitted the Papers relating to this Affair:303 No Judicial Determination has yet been had. The Consequence of this Action must be, that No Superior residing here can hereafter Venture to censure an inferior Custom house officer in any Case whatsoever.

    IV Barons ag Cradock. This Action is brought against the Gentleman whom Mr Lechmere appointed to execute the office during Mr Barons’s suspension & untill the pleasure of the Commissioners should be known. And He is accordingly charged with being an adviser & abetter of such suspension No one hereafter must dare to meddle with the Office of a Suspended Officer.

    V Barons ag Paxton. Mr Paxton exhibited a complaint against Mr Barons before Mr Lechmere as his Superior; Upon the examination of which & in pursuance whereof (amongst other causes) Mr Barons was suspended. So that No body from henceforth must presume to complain of a Custom house officer let him do what he pleases.

    I state to your Lordships only the Actions that are now brought. But it is generally understood that Mr Erwings is only a leading Action to a great many others; And that, if he meets with Success, Evry One that has had goods condemned or been allowed to compound for them at their own request, will bring Actions against the Officer who seized them.

    Your Lordships will perceive that these Actions have an immediate tendency to destroy the Court of Admiralty & with it the Custom house which cannot subsist without that Court. Indeed the Intention is made no Secret of: In the two Cases abovementioned, that were tried in the inferior Court, the cheif Subject of the haranges of the Council for the plaintiff (and some of the Judges too) were on the expediency of discouraging a Court immediately subject to the King & independant of the province & which determined property without a jury; & on a necessity of putting a stop to the practices of the Custom house officers, for that the people would no longer bear having their trade kept under restrictions, which thier Neighbours (meaning Rhode Island) were entirely free from. And One Gentleman,304 who has had a considerable hand in promoting these disturbances, has been so candid as to own to me, that it was their intention to work them up to such a pitch as should make it necessary for the Ministry to interpose & procure them justice (as they call it) in repealing ^or qualifying^ the Molasses Act, & in obliging the Neighbouring Provinces to observe the same restraints which this is to be kept under. In regard to both these points, if they were sollicited in another Manner, there would be much to be said on their behalf.

    I must add that this Commotion has hitherto been wholly confined to Boston: but It must be expected that if it succeeds here it will soon extend to the other ports. It cannot be said to be a provincial Concern: for tho’ by means of sevral other concurrent Circumstances, it was made a subject of contention in the former Assembly; yet that is subsided, & most of the principal Members of the present Assembly (among which may be reckoned the representatives of most of the Neighbouring ports) disapprove of these proceedings & are by no means disposed to give their sanction to the schemes of unfair traders. For my own part I have steadily followed my resolution to support the Offices with all my power: It has given me a great deal of trouble & subjected me to some abuse, but no other inconvenience.

    I would not pretend to dictate to your Lordships what remedies to apply to these disorders: One however I will take the liberty of mentioning; That your Lordships would recommend to the Lords of the treasury to order their sollicitor to take upon him the conduct & maintenance of these Suits. They are all of them (not excepting Gray ag Paxton) Actions against the King; whose Authority in evry one (& in one the Very money now in the royal Treasury) is at stake. As for the Expence, The Money brought into the Treasury by ^the seizures of^ Mr Paxton only (from whence This persecution of him & the other office[r]s takes his rise) will more than defray it. But what more induces me to propose this to your Lordships is, that I am persuaded that as soon as it is known that the Defence of these causes is put into the hands of the solicitor of the treasury, it probably will put an immediate stop to the present proceedings & prevent any future of the same kind. As to Mr Barons’s 3 Actions, He himself is, to my knowledge, subject to such large penalties in strictness of law, that the Very showing him his own danger must make him glad to drop his Actions & to submit his cause, as He should have done at first, to the judgement of his superiors in England, who have power enough to do him justice, if he has suffered wrong.

    I am, with great respect, My Lords, Your Lordships most obedient & most humble Servant

    Fra, Bernard.

    To The Rt Honble The Lords Commissioners of Trade & Plantations

    ALS, RC CO 5/891, ff 41-45.

    A delay in posting meant that this letter was enclosed in No. 64. After a reading at the Board of Trade on 18 Nov. 1761, FB’s letter and enclosures were copied and referred to the Lords Commissioners of the Treasury. JBT, 11: 225. For the Board’s reply see No. 79.