190 | To The Board Of Trade

    Boston Feb 19. 1763.

    My Lords

    On the 20th of last Month Mr Robert Temple Brother of the Surveyor general came to me & produced a Deputation from the Survr genl & praied that I would administer the Oaths of Allegiance & the Oath of Office of Depty Survr genl to him. I told him that I had heard that Govr Shirley had refused to admit a Deputy to the late Surveyor general on account of the Govrs 25th instn (as it stands in my set) by which the Power of the Survr genl, in some Cases, upon his absence devolves on the Govr.711 This Instruction I read to him & observed to him it did by no means favour the Surveyor genl’s deputising. But if his appointment contained such a power in express words, upon sight of that I might possibly be able to remove the Objection. Without that I could not think it proper to admit a person into an office not belonging to me, without any warrant or authority for so doing, at least without consulting your Lordships. Upon the whole I said, I would enquire into what Govr Shirley did upon the like occasion & inform him further. In the mean time if He had a mind to take the Oaths of Allegiance, he might do it before two Councellors, as well as before me.

    On the 26th of the same month Mr Robt Temple was with me again by appointment to meet Mr Paxton, who was present at the transaction with Govr Shirley, which he related as follows. “Mr Lechmere (the late Surveyor genl) attended Govr Shirley with a letter from the Commissioners of the Customs giving him leave to go to England & directing him to appoint a Deputy; & presented Mr Brinley712 as his Deputy & desired he might be sworn. Govr Shirley said he was orderd by the Kings instruction to fill up vacancies in the Custom house during the absence of the Survr genl; and that the Commissioners of the Customs could not supersede that instruction or authorise him to depart from it. Nevertheless if they would stipulate that the Deputation should be confined to matters not contained in the instruction & not set up in opposition to it, he would admit the Deputy: which being agreed to was accordingly done.” Upon this I observed to Mr Temple that his Case differed from the former, in that he brought no letter from the Commissioners of the Customs to desire me to swear him in, as is usually done in appointments in the Custom house: nevertheless, if he would previously agree, that a express reservation of the powers of the instruction should be inserted in the Memorandum of the Oath to be indorsed on the Deputation, I would administer the oaths to him. This He refused, altho’ for more certainty I repeated the offer more than once.

    I have been since informed that Mr Temple has qualified himself before the Govr of New hampshire; & must therefore expect that some time or other this Deputation will be set up against the instruction; I must therefore desire your Lordships directions how to act upon the occasion. It seems to me at present that it was never intended that this instruction should be avoided by the Surveyor general’s appointing Deputies, who not being known to or personally answerable to his Majesty’s Ministers cannot be supposed to be so fit to be intrusted with the filling up Offices in the absence of the Survr genl, as the Governors of the sevral Provinces are: and if this Power is Vested in the Governors so as not to be avoided by a Deputation, the instruction which gives it can be superseded or relaxed no otherwise than by the same means by which it was at first made. All which I humbly submit to your Lordships, and am, with great respect,

    My Lords Your Lordship’s most obedient and most humble Servant

    Fra. Bernard

    To The Right Honble The Lords Commrs for Trade & Plantations

    ALS, RC CO 5/891, ff 132-133.

    The Board of Trade upheld FB’s decision to refuse John Temple, in No. 211.