504 | To the Earl of Shelburne

    Boston Oct 10. 1766.

    My Lord

    In obedience to express orders that I should transmit to your Lordship’s Office particular Accounts of all transactions which affect his Majestys Customs, I find myself obliged to transmit to your Lordship an Account of an Affair which in its consequences is like to produce Very bad effects in regard to his Majesty’s revenue, unless such practices can be effectually discouraged for the future.

    On Sep 24 in the forenoon, whilst I was sitting in Council Mr Sheaffe the Dep Collr & Mr Hallowell Comptr of the Customs came to me & informed me that having received information that certain contraband & uncustomed goods were privately landed & stowed in a Cellar belonging to one Daniel Malcolm1 they went thither authorised by a writ of Assistance & accompanied by a Deputy Sheriff: they went to the House & showing Malcolm the Writ & demanding Entrance They were opposed by him armed with a sword & a brace of pistols, with threats of Death to Any one who should attempt to open the Door. Upon which they quitted the House & came to me desiring to know what they should do. I caused them to repeat this Account before the Council; & advising with them upon it, they were of Opinion that the Sheriff had sufficient power of his own to procure an obedience to the Writ.2 I thereupon called in the High Sheriff3 & in the presence of the Council directed him to attend the Officers to the House & procure for them Admittance into the Places suspected; and, if he should find it necessary, to raise the posse Comitatus.4 In the Ev’ning The Sheriff & the Officers came to me & told me that they had been all the day endeavouring to get Admission to no purpose, & were obliged to quit it, having been assured that an Attempt to force it would Cost some of them their Lives. I thereupon directed them to attend the Council the next Morning; before whom I intended to make Enquiry into this Affair.

    The next Day I opened the Council with informing them of what had passed the day before & telling them that as I must make an Enquiry into this Business, I chose to do it in Council, that I might not afterwards be charged with representing the Affair to disadvantage; that my principal intent was to come at the truth as precisely as I could: that I did not want to aggravate the Matter, but was rather inclined, where there was real doubt, to mitigate.5 I then proceeded to examine the persons whom I had directed to attend & had a Very disagreable business of it, not having the assistance of the Council as I have been used to have at other times.6 Their Concern for the Reputation of their Town, which in itself is7 laudable, was here carried to too great a length: It produced frequent obstructions to my proceeding, some of which, in one instance at least, were not free from personal affront, whilst I was in the chair. However I persisted in going thro’ the Examination, which lasted the whole day; in the Course of which all the favor, which truth would admit, was showed to the Subject. When the Examination was over I asked the Council if they could think of Any thing that I could do upon this Occasion & that they would advise me thereof: this was answered in the Negative cheifly by Silence. After which a Councellor said that there should be another Question proposed to them, whether they would advise that these Depositions should be transmitted to the Kings Ministers; which he beleived would be answered in the Negative.8 I said that I should never think of asking the advice of the Council whether I should or should not obey the King’s Orders, when they were clear & explicit & to be executed without any difficulty; & I added that I should not use them well, if I should ask their advice upon a point of conduct, upon which I was before hand necessarily determined. This Matter being Continued to be pressed, I told them that tho’ I could not of myself propose this Question, yet if they thought that they had a right to know the Sense of the board upon it; upon a motion made & seconded & the previous Question Voted, I would put the question; which I should do out of grace & not of right; for I was the sole Judge of what Questions I had to ask the Council. But I would in return give them my Advice, which was that they should not desire such a Question should be put, unless they were sure it would pass in the affirmative: for It must seem Very strange for the Kings Council (so they are called) to advise the Governor to disobey the Kings Orders against his own Sense & Conviction. Upon which the Motion was dropt, or exchanged to a request that I would not send away the Depositions at present but give time for others to be taken which might serve to extenuate the charge. This I readily Consented to; and the further Consideration of this affair was postponed to the next Council day.

    On the next Council day, which was Oct 1,9 I opened the business with informing them of his Majesty’s general Instructions to me concerning the Observation of the Laws of trade, & the late positive & peremptory Orders I had received from his Majesty’s Secretary of State & the Lords of Trade, within these 3 years, requiring my utmost Attention to that business; & I read some clause in the letters I had received to that purpose when it was said by a Gentleman, who had before urged the not sending home the Depositions, that if It had been known what Obligations I was under probably I should not have been so prest in that business. I then asked if there were any depositions taken or ready to be made on the other Side, repeating that I should be Very glad to add to the present depositions Any other that would tend to soften the general Charge. I was answerd that there were none such; but still was desired to suspend sending away the depositions a little longer. I deferred it untill the next Council day which was the 8th inst. when I was informed that a Town Meeting was called; upon which occasion it is Very common to arraign & Condemn the Governor & Council for what is done in the Council chamber. This Meeting was used for that purpose; when after a false representation of the Acts & intentions of the Governor & Council a Committee was appointed to wait on the Governor to desire Copies of the Depositions: which being granted, Another Committee was appointed to defend the Town against Misrepresentation.10After this an Account of the proceedings of the Town meeting was published in the News Papers containing, as usual, false reflexions upon the Governor & Council.11Being hereby disengaged from the sollicitations of the Council, I defer no longer transmitting to your Lordship these depositions & let them Speak for themselves; as I have nothing else in view but to do my Duty with a proper regard to truth.

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

    Fra Bernard

    The Right Honble The Earl of Shelburne

    ALS, RC      CO 5/755, ff 795-800.