533 | To the Earl of Shelburne

    No 5


    Boston, Febry 7th 1767.

    My Lord,

    The Session was opened last Wednesday1 & by what I have allready observed, It is like to afford plenty of Matter to confirm what I have before wrote to your Lordship upon this Subject. I formed my Speech in the most cautious manner, both as to Matter & dress; so that it was generally said, that they could not find a pretence to return a rude Answer.2 But Otis said, that there were many dangerous insinuations contained in the Speech, which common people could not see; & it should not pass unnoticed. Accordingly, three days after, they presented me an answer, a copy of which, together with the Speech, I hereby inclose.3 I shall take no notice of those parts of it, which relate to the Government & me, but leave them to your Lordships Observation.4 But in regard to that paragraph reflecting on the Lieut Govr, The Resentment of my Humanity will not let me be silent: nor is it fitting that so studied an Affront to the King’s Commission should pass unnoticed.5

    It has been the usage of this Government since the Opening the present Charter in 1692 (& ever before) for the Lieut Govr, when he was not elected a Councellor, to sit in Council next to the Governor without exercising the Voice of a Councellor. This was the uniform Practice for near 40 years before the time of Govr Belcher, with this difference, that there were some instances of a Lieut Govr in such Case acting as a Councellor, but not many. And this I understand is the usage of the royal Governments, when a Lieut Govr is not of the Council, which seldom happens: but I have heard of one instance of it. The uses of such a Practice are very obvious, the inconveniences of it does no how appear.6 But Govr Belcher having a pique against Lieut Govr Phipps,7 would not let him sit in the Council, (to which he was not reelected, only because he was Lt Governor) not seeing the injury he thereby did to the royalty under which he himself acted: for sometimes his imperiousness got the better of his prudence. Lt Govr Phips resented this so, as never to attend upon any public occasions untill he took the Chair: & then he complained how greatly he was unfitted for the Administration, by his being prevented attending to the public business, whilst his Commission was dormant.

    The present Lieut Govr at the time of his appointment was of the Council, & was reelected into it evry year, excepting the last. Upon his being excluded the Council, He, being well acquainted with the usage of the Government & the interruption of that usage by Govr Belcher, & desiring to preserve the right of his Office, frequently took his place at the Board; but without interfering in the debates thereof, except when desired to inform the board, or give his Opinion of matters without his knowledge. It happened that He was present at the Opening of the Session, most probably out of Compliment to me:8 for it was rather a Time of Ceremony than Business. This was laid hold of by the Faction, as a fit Opportunity to insult the Lieut Govr, by charging his taking a seat, which all his predecessors, but one, had constantly enjoyed, as “a new & additional instance of Ambition & Lust of Power to what they had heretofore observed .”9 Whereas this is the first time he has been charged with such qualities, & the first instance produced to support such a charge.

    Sensible & humane Men consider this as a more cruel attack than that made upon his House & Goods: To endeavour to stigmatise a Man in the Heart of his Native Country, of whom he has deserved more, perhaps, than any other in it, is an Act of Barbarity no ways inferior to the former committed against his Property; & has this difference only, that the first was committed by Tools, & this by Principals. And they both oblige us to recollect the Vows of Vengeance against this Gentleman, which preceeded these Attacks upon him. To leave no doubt of the intention to hurt him in his tenderest parts, This Answer was immediately published in all the newspapers, that the Imputation might have an extensive Circulation. But this had a different Effect from what was expected: It had occasioned so general an Abhorrence & Indignation, that the promoters of it have been ashamed of their work; & have endeavoured to recriminate upon one another.10

    Altho I had determined to give no room for any dispute upon my account, but rather to submit to any rudeness than enter into a controversy, I did not think myself at Liberty to pass by This insult upon the Lieut Govr. I therefore laid this Matter before the Council; told them my Sentiments upon it, said that I should order the Secretary to search the Books for precedents, & asked them if they would join any of their Body to assist the Secretary in this Enquiry. They declined it: I thereupon gave the Secretary his orders: Some hours after, He made his report to me in Council; I asked if they would take it into consideration, or postpone it; they chose the latter.11 I then sent the report down to the House with a Message, both which I inclose. They have since, as I have been informed, resolved that the Lieut Govr has no right to sit in the Council,12 tho’ without a Voice; & have appointed a Committee to prepare an Answer to my Message: I then shall know what Reasons they can give for defeating an usage of such obvious utility, & no probable Inconvenience.

    Your Lordship will observe, that all this while I take no notice of the impropriety & inclosing of the House of Representatives taking upon them to judge of the order & regulation of the Council. If the Governor & Council had taken the same Liberty with the House, It would immediately have been voted a breach of Priviledge. And the present Case seems to me to be the same, as if the House of Commons should complain of the House of Lords permitting the eldest Sons of Peers to sit in their House.13 But the Council is too dispirited to assert their rights; & I am not inclined to do it without them. At present the Council declines taking the matter into consideration: When the Answer of the House comes in, I shall lay it before them, & again propose a consideration. If they will do nothing I shall submit the whole with such further Observations as shall be necessary, to be laid before his majesty; for it is a matter of too great Importance to be given up without enquiry.

    Febry 14th.

    As I have not had an opportunity to dispatch the foregoing, I will continue the letter by proceeding to another Business, which your Lordship will, I believe, think to be of too great importance to be passed over by me. In my letter No 2,14 I informed your Lordship that the House had, at the end of last Session, taken umbrage at the Governor with the advice of Council having ordered provision for two Companies of Artillery (which were drove in here) pursuant to act of Parliament, & had appointed a Committee thereupon: so that this Subject was to be worked up as a Cause of Liberty. The second day of this Session, the House sent me a Message desiring to know “whether any Provision had been made, at the expence of this Government, for his majesty’s Troops lately arrived in this harbour, & by whom?”15 To this I returned an Answer inclosing a Copy of the Minutes of Council by which such provision was made, in which it is said to be in pursuance of the Act of Parliament.16 I also added an account of the Expence, which in more than two months amounted to 60 pounds Sterg. In reply to this, they sent me a Message,17 wherein they say that “I & the Council, in making such provision, acted unwarrantably & unconstitutionally, & it is the more grievous to them, for that it is mentioned to be in pursuance of an act of Parliament, which act appears to them as real a grievance as the Stamp Act.”18 They also say “that my not laying this Matter before them for the whole of the last Session, & part of this Session, untill they sent their Message was in breach of ^their^ Priviledge.” What they call the whole of the last Session, was only the 6 last days, when they met after an adjournment to pass the indemnification Bill, & for no other purpose: after which they desired I would dismiss them, & I told them in so doing, that I had postponed all other Business to the next Session on that Account.19 The part of this Session was not 48 hours, in which I had given orders for making out the Account of the Expence to lay before them: when they hurried this Message, so that it came to me 2 hours before I received the Account. I mention this only to show, upon what trifling pretences a charge of a breach of their Priviledge is formed.

    In the business itself, The Govr & Council acted precisely according to the constant usage of this Government, both in the manner of providing & the things provided; & in regard to the latter not quite conformably to the Act of Parliament: for there was no Beer Vinegar, &c provided, the Officer not requiring them. The Entry in the minute of Council “in pursuance of the act of Parliament”20 was made at the desire of some of the Council, thinking, I suppose, that it would protect them from being called to an account for doing what in other times would have passed as a common act of Government: & even these Words are more properly applicable to the request of the Officers, than the Order. But the Reverse has happened: The act of Parliament instead of protecting them, has been the Cause of their being arraigned. Political measures are very catching in this Country: When the matter was first agitated, Advice had been received of the Assembly of New York having refused to comply specifically with the act of Parliament;21 & it was mentioned in the House, & then (last Session) it was said that this act was worse than the Stamp Act. And when it was revived in the House this Session, a Member,22 opposite to Government, said that the Govr & Council were not to blame; the Act under which they had acted was what was to be condemned. And indeed this trifling Business, which in the whole Expence wont cost above 150 pds Sterlg, was to be laid hold of only to make a public declaration against the Act of Parliament, all papers of this kind, which used formerly to be seen no where but in the Votes, being now printed in all the Newspapers. And from some particular Expressions, it has the Air of a Manifesto much more than of a Message to a Governor; who is the last person to whom a claim to an Exemption from Acts of Parliament should be made; [as]23 it is impossible for him to concede to it.

    I shall have occasion to trouble your Lordship again before the Session is over, which will last about a fortnight longer: at the close of it, I hope to bring this tedious disagreable Capitulation to a Conclusion.

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

    Fra Bernard

    The Right Honble The Earl of Shelburne

    P.S. Febry 18th,

    This Letter still remaining with me, I have an opportunity to add that for above a week past, I had endeavoured to prevail with the Council to join with me in a justification of our proceedings in making permission for the King’s Troops, but at the same time, I protested against their answering without me, as it was a Business of privy Council in which they could not act separately from me. This Distinction24 was made use of to introduce a squabble about Priviledges, which prevented any Resolution being taken. To put an End to this, yesterday I introduced the inclosed Answer in my own Name only, which I told them I would send if they would advise to it, which after some Debate, they did; & I sent it to the House. Your Lordship will observe that in this Answer there is a carefull avoidance, tho’ no denial, of this Provision being made in pursuance of the Act of Parliament: I was obliged to frame it thus to obtain the Council’s Concurrence. For tho’ the greater part of them have, I believe, a due respect for an act of Parliament not one of them would dare to avow it in this instance & at this time.25

    ALS, RC      CO 5/756, ff 43-47.