521 | To the Earl of Shelburne


    (No 2)

    Boston, Decr 24th, 1766.

    My Lord,

    Upon the meeting of the new Assembly, on May 28th, It was very apparent that the Government party must be the minority. Nineteen of the proscribed Members had been left out, among which were some of the most able Men in the House & most respectable for their knowledge & Prudence. The House was uncommonly filled with Men of confined & narrow Ideas, unacquainted with, & unfit for public business. It was known that Otis’s Faction intended to push the Government by all practicable Means, & also that they intended to oppose the making a Compensation to the Sufferers; for which purpose the great Intrest, which the Lt Governor, had in the Losses, would be sufficient Inducement to their Leader. Under all these difficulties, The Government had no Chance to get that or any disputable business done, but by preventing Otis taking the Lead. This was to be done no otherwise than by convincing the House of the dangerous Consequences which might follow the violent Measures which it was known he would propose & prosecute. There was no one to do this but myself: I was sensible that Arguments from the Chair have but little Weight in popular Assemblies, where a Governor is reduced to Argument: but I had no Choice; & there seemed to be no danger in trying an Experiment which could not make things worse than they would be without it. It was upon these principles that I made my Essay in my two speeches of May 29th & June 3d: and tho’ it failed of Success, yet I can say, that if the Government got nothing by it, It has lost Nothing.1

    The first Act of the general Court was so amazingly imprudent, & so promising of further violent Measures, that, if there had not been a necessity for speaking out, It would have been difficult to be silent. Immediately after the unexampled Grace & Condescension of the King & Parliament towards the American Colonies, for the Representatives of one of them to turn all the Crown Officers out of what is called the King’s Council, as their first Act, must astonish anyone, who is not acquainted with the power of Faction in Democratical Governments. I know not whether I was more affected with resentment for the Crown, or Concern for the Province: however it was in the Spirit of the latter chiefly that I endeavoured to speak to them. All my Acts & Sayings were formed in tenderness for the People; the whole Purpose of both was to induce the Assembly to undo what they had done: that the advice of this imprudent Act might be accompanied with that of the revocation of it. The most exceptionable part of my Speech, my saying “that the abuse of a right would tend to impeach the right itself,” which has been construed to be the threat of an Adversary, was really the admonition of a friend.2 The Probability of such a consequence was obvious to evry one, & the propriety of its being taken into consideration in a question, ^whether they should proceed to another Election^ & restore the Crown Officers to their Seats was as obvious. If they had been disposed to this healing Measure, no exception would have been taken to my manner of treating the Subject. But as the Faction was determined to keep the King’s Servants out of the Council, It is no wonder they should make a clamour at their proceedings being censured.

    For the Reasons beforementioned, knowing that the Faction intended to oppose the Compensation, I found it necessary to introduce the recommendation of it, in as forcible a manner as I could. And yet I used no other Terms nor expressions more forcible than I had been used to apply to his Majesty’s recommendations, during such part of the late War wherein I have been Governor of this Province, with the constant Approbation of the Assembly. At this time Nothing but a fixed determination to cavil at whatever I should say, to oppose whatever I should recommend, & to work up in the People a Jealousy of the interposition of parliament could cause an exception to be taken to the Words I used upon the occasion. I certainly intended to do honour to the Recommendation of the King with the Advice of his parliament by the most respectful terms which I could use: but to argue, that I intended thereby to impeach the free Agency of the Assembly, is absurd, when it is considered that at the same time I was applying to them as free Agents. But the Test of these Expressions will be, comparing them with others used upon like occasions: for this purpose, I have desired the Secretary to search the Books of the genl Court in order to compare the one with the other. His report I shall enclose with this, from whence will appear the Terms which have been applied to his Majesty’s recommendations for four years together, to which I beg leave to refer. The Exception taken in the present instance is that I have called his Majesty’s recommendation a Requisition; and say that “the Authority with which it is introduced should preclude all disputation about complying with it.”3 In regard to the first, will not a standerby be astonished at seeing the cavilling at this Word carried to such a Length, when he shall know that his Majesty’s recommendations have been usually called Requisitions both by me & the House for six years past; & that the Word Requisition was first used to this Purpose by the House, & taken from them by me, & again & again reechoed by them. As to the other Words, there are in these extracts expressions full as forcible; such as these, “you cannot hesitate one moment about a ready compliance with this requisition.” feb 23d, 1762. And they were considered as terms of respect & not of positive obligation. And so they would have been now, if there had not been a settled Design of quarrelling with the Government & promoting among this People a Jealousy of the Authority of Great Britain.

    I should not have troubled your Lordship with this explanation, if the House had not revived this dispute at the last Session, & made it so serious, as to instruct their Special Agent to represent it to your Lordship as the probable cause of the delay of the Compensation; which I shall observe upon hereafter. In the mean time I have thought proper to insert this account of my intention in its proper place. There were but two Reasons given by the House in this Session for their not complying with the Recommendation: the one was that it was a matter of such consequence that they must consult their Constituents; the other, that the Sufferers had not applied to the House in a parliamentary way. This latter was produced but just before the rising of the Court;4 if it had been mentioned in time, it would have been removed by the Sufferers petitioning the House, as they did at the beginning of the next Session. The former Reason did not appear to be sincere, as they would not fix upon a short day for a recess, & apply to me to adjourn them to such day, which I let them know I would do, if they would make application for it. Instead of this they rather showed a disinclination to having an early Session for this purpose, & it was commonly said, that the usual Time of the Winter Session (the middle of Janry) would be soon enough for this Business. On the other hand, if I had called them together without a probability of Success, it would have only made the matter worse. I had therefore nothing to do, but to watch the Opportunity, when there should appear a disposition to make the Compensation, & then to lay hold of it.5

    In my letter to your Lordship of Novr 14,6 I informed you how cautious I was in guarding what I said to the genl Court at the Opening of the Session, from being perverted, & of what little avail it was to my purpose; since for want of some fresh Matter to quarrell about, the House went back to a speech I made 5 months ago, which was then fully animadverted upon, in order to make a fresh dispute. In their address they say “that the Manner in which I had proposed a compensation to the Sufferers had been derogatory to the honor of the House, & in breach of the priviledges thereof.”7 The exceptionable words in my Speech were these. “The Justice & Humanity of this Requisition is so forcible that it cannot be controverted; the Authority with which it is introduced should preclude all disputation about complying with it.” Now supposing I meant something more than Terms of respect towards the King & parliament (which it is difficult for anyone who considers the Nature of the business to conceive) yet surely such assertion is much within the Bounds of the solemn declaration of their Authority so lately made by the King & parliament themselves: & therefore my Crime could amount to no more than an indiscreet assertion of a real right upon an improper occasion. But surely for a provincial Assembly to tell their Governor that his indirectly asserting the Authority of the King & parliament over them is a breach of the Priviledges of their House, is itself a high breach of the Priviledges of a much greater Body. But My Lord, I will make it evident that I meant only to use respectful Terms towards the King & parliament, & not to urge any legal or legislative Obligation upon the Assembly; & that the Persons who made this Objection knew that this was so, or ought to have known it. For this Purpose I’ve employed the Secretary to search the Journals for the Expressions I had formerly used in laying before the House the sevral orders I received from his Majesty during the late war; whose report I beg leave to inclose with this: from whence it will plainly appear that upon this occasion I used no other terms, nor more forcible expressions than I had often used before with the Approbation & concurrence of the House; & that it was the temper of the House, & not my Words, from whence this objection arose.8

    What the Temper of the House, or rather the disposition of the few Leaders who influence a Majority of it is, will appear from sevral passages which have passed in the House this last Session, which, tho’ at another time they would have been thought too insignificant for notice, are not so now. A Gentleman, one of the chief Speakers against the Compensation, in the course of his Argument said, in direct terms, “the parliament of Great Britain has no right to legislate for us.” Upon which Mr Otis got up, made him a Bow, & thanked him, saying that “He went further than he himself had as yet done in that House.” Mr Otis was endeavouring to engage the House, to censure the Governor for taking depositions in the Affair of resisting the Custom house Officers,9 of which I informed your Lordship by my Letter of Octor 10;10 when a Member observed that “he knew the time when the House would have readily assisted the Governor in executing the Laws of Trade, instead of being moved to oppose him in it.” To this Otis replied that “the times were altered; they ^now^ knew what their Rights were, then they did not.” These are instances of the sayings of particulars only, I will give two more instances of acts of the House, which have not as yet had their full effects.

    It has been usual in this Government to reprint such acts of Parliament as extend to America by order of the Governor, with the advice of the Council:11 the Stamp Act itself was reprinted by the Printer of the Government by such order.12 Last Summer having received 7 acts of Parliament passed the last Session relating to America, I communicated these to the Council,13 & it appearing that 4 of them were intresting to this Province, the Council advised that they should be printed by the printers of the Laws, & it was accordingly ordered. Among these Acts was the Mutiny Act, which it seems has given as much umbrage to this Assembly, as it has done to that of a neighbouring Province, tho’ it has not yet so fully showed itself. In the interval of the adjournment of the Assembly, a Transport with two Companies of Artillery on board was driven in here by stress of Weather.14 The Commanding Officer applied to me for Quarters: I laid the Business before the Council; the Act of Parliament was consulted; & the Council advised me to order the Commissary to furnish them with what they demanded under the Act. When the Assembly met, this matter was moved in the House by Mr Otis; & a Committee was appointed “to prepare a Message to the Council to enquire by what Authority any Acts of Parliament are registred among the Laws of this Province.” This Message was accordingly sent up by 5 members, & had this Question at the end of it “whether they knew of any Act requiring the registry of ordinances which this legislature never consented to.”15 The next Morning the House sent up another Message to the Council, to enquire “whether the Board, or the Governor & Council, had made any provision for his Majesty’s Troops lately arrived in this harbour, & how.”16 I had before, upon another occasion; cautioned the Council against answering, whilst sitting in their legislative capacity without me, for what they did as a privy Council with me; & I renewed this caution at this time, & added that Application should be made to me, & to me only, for an account of what was done in the privy Council. The Council therefore answered to both the Messages “that the orders relative to those Matters were given by the Governor with the advice of Council, & therefore the House was referred to the Governor for the information they desired.”17 This answer was voted by the House to be not satisfactory; & a Committee was appointed “to take the Answer & the Matter into Consideration in the Recess, & report what is proper to be done.” Upon this occasion, Otis speaking of the next Election of Councellors, said that “he would as soon vote for the Devil, as he would for a set of men who betrayed the Liberties of their Country by inserting Acts of Parliament among the Provincial Laws.” He added that “the Council had got the disease of Mary Magdalen; it had seven Devils in it, which must be cast out before it would be in health.” By this we are to understand that this Subject is to be worked up next Session, so as to be a cause of Liberty, & is to be made the means of purging the Council of some more of the Friends of Government now remaining in it, & thereby intimidating the rest with effect.

    The harrasing the Council, & calling them to an account for evry thing they do in Conjunction with the Governor which can be perverted so as to make a popular cry, is one of the means made use of to weaken & lower the Government. And it must succeed: for as some will be turned out by being made objects of popular clamour, so others will be teized into resigning their places; as some have been allready, particularly two of the Judges besides the two others who were turned out.18 At the End of the last Session, Two Gentlemen of the Council, both of them Men of ample fortunes, & distinguished reputation, & steady assertors of the rights of the King’s Government, came to me (unknowing of one another) & said they could not keep their places in the Council, but must resign, if the Government was not supported by some means or other.19 I endeavoured to divert them from their Purpose, by saying that the Triumph of the Faction could not last much longer, &c. But in truth I foresee no end to it by any means within the reach of this Government. The People by the Constitution have really all the power in their hands; & they, that is, a Majority of them, are disposed at present to exercise it to the utmost, being of late so elevated, as to see their own strength more clearly than they have before. The Chain is very short: the People elect the Council; the Governor can do nothing without the Council; therefore if the people fill the Council with their own Creatures, & keep them in constant awe, they must govern the Governor as absolutely as those of Connecticut or Rhode Island do theirs. The Governor has nothing but his negativing power to trust to: & they will soon make him tired of exercising that.

    I am extremely concerned that I am obliged to trouble your Lordship with a detail of Matters so unworthy in themselves of your consideration but very intresting by the relation they bear to this Government. I am desirous to make evident this truth, that it is the Government that is aimed at, rather than the Governor; & where the Governor seems to be the Object, it is either as a medium to come at the Government or as a screen to hide the real design. There is but one Man in the House, that I know, has a personal Enmity against me,20 whereas there are many who are intent upon enlarging the Democratical power, & expect to raise themselves upon the ruin of the royal Authority. That my asserting & endeavouring to support the royal & imperial rights is all my Crime appears plainly from the House, during this Length of Altercation, having charged me with nothing, but what is reducible to that head. Indeed they would have found it difficult to have framed any other charge against me: for they would be contradicted by the frequent Testimonials of the Assemblys for the four years ^immediately^ preceding immediately the Stamp Act: Extracts of some of which are at the End of the inclosure & are distinguished by a red Line along the Margin. If I have injured any one, it is myself by a too scrupulous attention to my duty; a Relaxation of which would have saved me a great deal of trouble: but I cant wish that I had acted otherwise than I have.

    The Importance of the Question will apologize to your Lordship for the length of my writing: I should have been glad to have been shorter, but have been unwilling to omit anything that will fling light upon the Subject. I shall be obliged to proceed a little further at another time. I am, with great Respect,

    My Lord, Your Lordships most obedt. and most humble Servt,

    Fra Bernard

    The Right Honble The Earl of Shelburne.

    ALS, RC      CO 5/756, ff 10-15.