64 | To the Board of Trade

    Boston Aug 27 1761

    My Lords

    The inclosed letter has laid by me so long that I am enabled to give your Lordships a short Account of the Success of the two appeals before mentioned; the Causes having been heard before the Superior Court.

    Gray agst Paxton. This Cause was determined without a Jury, by a plea of abatement to the Writ,310 which the Court determined in favor of the defendant. The Point upon which it turned was that the Treasurer could not sue for this Money ex officio: And there was no order of the General Court to enable him. There has been an order made since the bringing this Writ; And it is expected that a New Writ will be brought in pursuance of that order, And then will arise another Question whether an Order of the general Court can enable a person not authorised by Act of Parliament his Office to sue for Money given to the King by Act of Parliament. My Reasons for the Negative Your Lordships will see in the Votes of Jan 1761 pa 246.311

    Erwing ag. Cradock. This Action came before a jury in the Superior Court. Upon the summing up the Evidence the Judges were all of opinion that tho’ Mr Cradock might by means of some irregularity in the seizing the Ship have been guilty of a trespass (which however was neither proved nor admitted) yet it was wholly purged by the composition confirmed by the Court of Admiralty, the decrees of which were of equal force with a Judgement at Common Law. It was urged by the Cheif Justice that the Court of Admiralty was part of the Constitution of the Province, it being expressly provided for by the Charter. The whole Judges Bench directed the Jury, as strongly as they could, to find for the Deft. Nevertheless they found for the Plaintiff & gave upwards of £550 sterling in damages, being all that he said he was out of pocket. This was no Surprise to those that were acquainted with the Violence with which these proceedings are carried on. It was remarkable that Mr Erwing according to the usage of these Courts, spoke a great deal for himself, when he admitted Evry thing Necessary to prove that he had incurred a forfeiture & declared he had acquiesced only in expectation that a time would come when He should have his revenge: a word he used sevral times to express the purpose of his conduct. He declared ^after the Verdict^ that he should be Supported by the principal Merchants of London against Any representations the Governor could make.

    Mr Cradock will take care to enter An Appeal to the King in due time: as he will Nevertheless be subject to Execution, Care will be taken to prevent his being sent to Goal before Orders come from England. They now begin to talk of bringing more Actions against Custom house officers who have made seizures & have had them Condemned or compounded in Court for them. A Custom house officer has no chance with a Jury, let his Cause be what it will. And It will depend upon the Vigorous Measures that shall be taken at home for the defence of the Officers, whether there be Any Custom house here at all.

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

    Fra Bernard

    To the Rt Honble The Lords Commissioners for Trade &c.

    ALS, RC CO 5/891, ff 51-52.

    This letter was considered by the Board of Trade on 18 Nov. 1761 and referred to the Lords Commissioners of the Treasury. JBT, 11: 225.