535 | To the Earl of Shelburne

    No. 6


    Boston, Feb 21. 1767.

    My Lord,

    In my letter No 5,1 which went from hence but yesterday, I informed your Lordship of the proceedings of the House against the Lieut Governor for taking a place in the Council chamber at the opening this session: I have now some supplemental Matter to add to this Article. I received yesterday a Message from the House in answer to my Message with the Secretarys report.2 I immediately communicated it to the Lieut Govr; & this morning I received a letter from him,3 which I immediately communicated to the House with a message to introduce it. Copies of all these I now inclose: & as this Dispute is, I hope, to be now quieted for the present, I shall conclude all I have to say upon this Question.

    It seems to me very plain that both they who sollicited, & they who prepared the present Charter, understood that the Lieut Govr would have a seat4 in the Council without any other appointment:5 as it was the constant usage of the Government under6 the first Charter untill the time of the second. This appears from Lt. Govr Stoughton,7 who was the most leading Man in the Province & therefore appointed Lt Govr, not being included in the list of Councellors named in the Charter; which it must be presumed he would have been, if it had not been understood that he would have a place among them as Lt Govr. Accordingly at the Opening of the Charter,8 The Lt Govr took his place at the board & acted as a Councellor during all the rest of the year. But the Charter not being explicit upon this, The genl Court next year chose the Lieut Govr one of the Council, & continued it all his Life time; by which means his right to set & vote in the Council, if he had any, was drowned, & by implication avoided. The next Lt Govr, Mr Povey,9 was a stranger to the Province & never was chose of the Council: & he seems to have compromised by contenting himself with a seat in the Council, (which he constantly used) without a Voice. This became the rule with the two next Lt Govrs, Taylor & Dummer,10 who were sometimes elected Councellors, & some times not, but allways took a Seat in the Council. This continued till 1734, when Lt Govr Phipps11 being left out of the Council, Govr Belcher, who had a personal Animosity against him excluded him from a seat in the Council, which was submitted to, as an Act of power which could not be resisted, but not without great Complaint. This is the precedent, which, tho’ in the instance of one Man only, lasted 23 years, upon which the exclusion of the present Lieut Govr is to be founded. In regard to the expediency of the Lt Govr having a seat in the Council without a Voice; there are many apparent uses to be made of it, of which the following are very striking. As the Lt Govr is liable to take the Chair very suddenly & sometimes very frequently & for short intervals (when the King’s Service requires the Govr’s attendance in other Parts of the Continent, as it did Govr Shirley at the end of the former War & the beginning of this) It is not only fitting, but necessary that the Lt Govr should be constantly acquainted with the Chain of public business & familiar with the forms of it. Again, It was fitting & necessary that he should be at hand to give an account to the Governor of such Transactions as passed in his absence. For both these purposes It is expedient that the Lt Govr should both have & exercise a right to sit in Council in the presence of the Governor. As for the inconveniences of such a practice (the due form of Government being preserved by the Lt Govr not exercising a Voice) none has being urged, except that Shadow of one, under influence. I desired the Council to inform me of any that occurred to them: I could get nothing but one Objection allmost too trifling to repeat. It was said that the Council being sometimes put under an oath of Secrecy, which as Part of their Oath, the Lt Govr not taking that Oath, would be at liberty to divulge. I answered, that in such case I should administer that part of the Oath to him, as I had done before to the Dep Secry & the Clerk.

    It may seem that this is no more than a Dispute concerning a Ceremonial: but to me it appears a serious & important Matter. I believe it had its rise in personal Enmity: but it now appears to be improved to political purposes; & will be made conducive to another exclusion of much greater consequence, which has been allready mentioned, & will, I am persuaded, be prosecuted, whenever the Faction shall get possession of the Council by garbelling12 it, as their leader publickly declares he intends to do. Your Lordship will observe that the American Councils have two functions, one as a privy Council to the Govr, the other as one of 3 parts of the Legislature answering to the House of Lords. It was formerly the usage of this Government for the Governor to preside in the Legislative Council: Govr Belcher constantly did it, & by that means never had the Council to struggle with. When Govr Shirley succeeded, It was moved in Council, that the Council when acting in their Legislative Capacity should act separately from the Governor, which Govr Shirley admitting, ceased to preside in the Legislative Council, but continued to be present whenever he thought proper, & very frequently. I have observed this rule, & neither have desired to preside nor interfere in their debates as a Legislative: but I have claimed a right to be present at these debates whenever I please, & to give them such informations as should seem to me to be necessary to a right judgement of the Questions before them, without entring into arguments or making Conclusions therefrom. I have also, when I have had doubts concerning Matters which have been laid before me for my Consent & were passed in Council in my absence, stated my doubts to the Council, & desired to be informed of the reasons they proceeded upon for directing my judgement. This has generally been the Means of satisfying me, but sometimes has occasioned the Council to reconsider the business & alter their Vote . This Intercourse, which greatly conduces to the ease & facility of the public Business, has been conducted with proper Decency & acquiesced in with good humour. Nevertheless it has given occasion to the party without doors to complain of the Govrs being present at the legislative Council, & thereby using an undue Influence. And as this Inference has been now used against the Lieut Govr, I am mistaken if the next Regulation of the Council will not be for the exclusion of the Governor; as all the royalties of the Government are become the objects of the ruling party.

    I have endeavoured to represent this Business in the fullest Manner; that if your Lordship shall think it necessary to be laid before his Majesty that order may be taken therein, Nothing may be wanting for the Explanation of the Case. For my own part I shall be glad in his & in all other disputable points, to be specially instructed how to conduct myself.

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

    The Right Honble The Earl of Shelburne.

    P.S. I should have mentioned before that when I sent my last message to the House, I again offered to the Council to attend to their deliberations upon the Subject But they declined it so absolutely, as to desire that I would put no question upon it, nor even enter a minute of the proposal. This I consented to, after desiring them to keep in their Memory these my Offers; that I might not be charged with neglect of taking their Opinion.

    ALS, RC      CO 5/756, ff 52-54.