255 | To the Board of Trade

    Boston Decr. 24. 1763

    My Lords

    Pursuant to the orders I have received I proceed to give your Lordships an Account of the prosecution of the Briggantine lately seized in this port laden with french Wines & other French goods.

    The Brigantine Freemason laden with French goods chiefly Wines, at Bourdeaux took her departure for Boston at which place she arrived, (having first touched at Liverpool in Nova Scotia) on fryday the 21st of October, & came to an Anchor within the harbour about 6 miles distance from the Town. There she lay at Anchor all the rest of that & the next day untill the Evening when it was dark; when she went up to town. Being hailed in passing the Castle They answered from Newcastle; & being boarded by the Man of War’s barge They answered from Newcastle laden with coals. But it appearing that she had a cargo of Wine, Capt. Bishop commander of the Sloop of War Fortune who had qualified himself in this Province as a Custom house officer seized her.966 Soon after she was seized They owned that the Brigantine was loaded with french Wines &c & came from Bourdeaux being bound to St. Eustatia. And on the Monday following, being the first time the Custom house was open after the seizures, the Master made a report of his cargo, (which in the course of the trial was falsifyed) & his destination praied that he might be permitted to proceed to St. Eustatia. But the Captain, as a Custom house Officer, by the advice of the Advocate general, libelled the Vessel & Cargo in the Court of Vice Admiralty as forfeited for importing European goods not shipt in great Britain contrary to the Act of the 15th of Char. 2. Upon which the Vessell was claimed by owners living in this province & as for the cargo, a Claim was entered on the behalf of M Belouan a french Merchant at Bourdeaux & M Cossart a Dutch Merchant at St. Eustatia; and it was alledged that these goods were freighted by one to the other, and that leave was given for this Vessell to take Boston in her Way to St. Eustatia: and that they had a right to come into the port so long as they reported & did not break bulk.

    This produced a Question Very intresting to the Crown, that is, Whether a Vessell laden with prohibited goods & pretended to be bound from a foreign European port to a foreign American port, might come, ever so much out of their way, into a British American port & there lie at Anchor upon the credit of reporting her cargo & pretended destination. The affirmative of this Question had been pronounced to be law in some popular declamations in the causes which were carried on here against the Custom house officers about 3 years ago: but there never was a cause, that I know, in which this point was adjudged. I therefore determined, whenever a Case should happen in which this Doctrine should come into question, to oppose it with all my Power: Since it is obvious, that if this question was determined to be law, it would be necessary to apply to Parliament for an amendment of the 15th of Char 2. since it would be impossible to prevent foreign European goods coming into America, if Vessells laden with such goods had a right to come in British American Ports, only by reporting the Cargo & a pretended destination to a foreign Port.

    Upon this Account I took upon me the overlooking the conduct of this prosecution in a manner more earnest & public that I have used in other causes of this kind. The Advocate general conducted it with a spirit & Judgement not to be enough commended. The most material Question was whether there could be an importation (so as to forfeit) without landing. The Judge having heard Council for two whole days, gave his Opinion that landing was not necessary to make an importation contrary to that Act, & having shown how effectually the Act would be defeated if a liberty for Vessells laden with prohibited goods to come into British Ports at their own discretion was allowed, & having mark’t out several particular Circumstances which showed a fraudulent intention in the present case, decreed the Vessell & Cargo to be forfeited.

    From this Decree the Claimers have appealed to the high Court of Admiralty.967 Upon this occasion I must, in pursuance of the orders I have received to communicate to your Lordships my Sentiments on this Subject, earnestly recommend to your Lordships, that the defence of this Decree against the appeal may be supported at the expence of his Majesty. As one third part of this forfeiture is decreed to his Majesty his intrest in it requires the support of his officers pro tanto.968 But that is not all: if these extraordinary Custom house officers, whose Service as it is new, is the more invidious, do not appear to have the public support of the Crown in what they do according to the best advice they can procure, I am convinced that a combination will soon be made to distress & embarras them by appeals & Actions at common law for doing their duty in the most plain & positive cases. This I have seen experienced in the confederacy which was formed against the ordinary Custom house officers of this port about 3 years ago, which was effectually discouraged by one instance only of a defence being carried on at the expence of the Crown.

    Copies of the proceedings are making out which together with an abstracted state of the case & of the arguments used for the forfeiture, will be sent by the first opportunity.969 Capt. Bishop has also seized a Ship for loading with rice without giving bond. I advised & assisted him in this prosecution & the Ship was condemned together with the Rice without any defence.

    I am, with great regard, My Lord, your Lordships most obedient and most humble Servant

    Fra Bernard

    The Right Honble The Lords Commissioners for Trade & Plantations

    LS, RC CO 5/891, ff 203-206.

    The Board of Trade considered FB’s letter on 2 Jul. 1764, and John Pownall replied on 12 Jul. JBT, 12: 79; BP, 10: 175-178.