542 | To the Earl of Shelburne


    No 11.

    Boston, Mar 28, 1767.

    My Lord,

    In a former letter1 I have mentioned to your Lordship that the Party who had taken the lead in the Assembly here had principally in View the divesting the Governor & Council of all real Power in the execution of the Government, & making the House of Representatives, which is constitutionally only the third part of the Legislative power, the principal part of the executive power; in which, It cannot; without usurpation, have any share at all. This is no new attempt: the records of the Massachusets are full of instances of this, some of which are frequent enough to make a kind of Precedents.2 The whole dispute between Govr Shute [and the House]3 turned upon this alone: the Man they could not find fault with; blameless in his private Character, his political error was making too many concessions in hopes of Peace; which was still kept farther off by the Means made use of to procure it.4 But when, his easiness & good Nature being quite tired, He was obliged to carry home his complaints against the House, They after having made some efforts to justify themselves, found themselves obliged to plead guilty: for their proceedings would not bear the examination of the King & his Council. And hence came the Explanatory Charter:5 And I fear It will6 require no less an Authority (possibly a greater) to compose the Troubles of this Government, if the same Men & the same principles should prevail in this next House which have dictated to this.

    I have before said that the Session would afford instances of this intention: Evry proceeding by which the party has distinguished itself is an instance. However I shall select two or three particulars which are more glaring than the rest, & leave no room to doubt of the purpose.

    The Agent of the Province of Massachusets Bay is upon a footing very different from those of the meer royal Provinces & more agreeable to those of the two Democratical Colonies of Connecticut & Rhode Island. The Reason of this is that Massachusets, as well as the two others, being a Corporation, in which a concurrence of three sevral bodies is necessary to the Validity of evry corporate act, an Agent appointed any otherwise than by the three bodies would not be the Agent of the Corporation, & therefore would be without Authority to do any act relative to the generality of the Province. Another Distinction is, that in the royal Governments the Council, as well as the Governor, being appointed by the King, & subject to the Controll of the Governor even to suspension, the Representatives of the people become a distinct body frequently separated from the Governor & Council in Opinions of their own Intrests, & connected only by a concurrency of Legislation. Whereas in the Massachusets, The Council as well as the Representatives are the Creatures of the People, & the Governor, by his being obliged to have the advice of the Council in all executive Acts, & having no coercive power over them (nor even the King himself) has in his Functions much of the Democratical Cast: & the three branches are connected together by many Acts of Corporation as well of Legislation. This Government therefore with great propriety continued the same Method of appointing an Agent as was used before the last Charter, & is now observed by the two other Governments, which have not the least ingredient of royalty in them.

    Upon the solliciting the present Charter7 in which the Agents for the Province strove hard for evry popular priviledge which could be pretended to (& with a success which has proved injurious to good Government & the true Intrest of the people) it was proposed, among other Things, that the Representatives should have a separate Agent of their own. But this was refused, undoubtedly upon some such distinctions as the forementioned: for an Agent for the Representatives of royal Government has been always admitted. Since that time, in all times when the Representatives have been out of humour with the Government, they have endeavoured to obtain a separate Agent. But the Virtue of the Council has heretofore withstood them by refusing to consent to the pay of such Agent. In this they did not let the vote come up to the Governor & expose him to the unpopularity of the Negative: they stopt it at their Board as an unconstitutional Measure. In the time of Govr [blank]8 the House sent up repeated grants for the pay of a separate Agent of their own. But the Council constantly nonconcurred them, in sevral instances entring it to be unanimously. But when Govr Shute had preferred Articles of Complaint against the House for usurping the royalties of the Government, The Council concurred & the Lt Govr consented to the grant of a Sum to employ an Agent for their defence. And with reason: for where they were separately accused, It was fitting they should have a separate Agent for their defence. For the Council disclaimed & disapproved their proceedings, & refused to join with them in a justification: & therefore it became the Business of the House alone. Here then is a line drawn which will show in what cases the House can properly & constitutionally appoint a separate Agent; namely in such Cases where they are separated from the other branches & made answerable distinctly for themselves only: But in all cases where the whole Government & the general Wellfare of the People is intrested, It is necessary that the Agent should be appointed by the three branches of the Corporation, & that such appointment should be certified, as it has usually been, by a Commission under the Province Seal.

    From these premises it will appear that there cannot be a more certain Test of the intention of a party to bring into the Hands of the House the chief Management of this incorporated Government, than by assuming to themselves the direction of the Agency & excluding the Governor & Council from having any share in it; & at the same time nothing can more tend to embarras the Ministry, than the making the Representations from hence, which used to be dictated by the whole Legislature, come from the House only; by which the Ministry may be sure to have partial & inconsiderate representations, which if they should appear plausible upon the face of them, cannot well be determined upon, untill the sense of the Governor & Council shall be taken upon the same subjects. These & many other inconveniences will follow the introduction of this new kind of Agency; which has at present taken full effect in this Government.

    This Alteration of the Agency has been thus gradually brought on.9 At the Meeting of the Congress at New York in Octr 1765, It was generally recommended that each assembly should appoint a special Agent to sollicit the repeal of the Stamp Act, & not trust to the standing Agents. Upon this, the House of Representatives here appointed mr De berdt to be their special Agent for that purpose it directed him & mr Jackson the standing provincial Agent to concert with & assist one another in that business. There was no objection to be made to this as the Special Agent was not appointed in exclusion of the standing Agent, but to assist him. And tho’ the use to be made of him might be foreseen, yet there was no Opposing any measure that should be taken at that time & for that purpose, upon exceptions which might appear to be founded upon Matters of form only. But if there had been never so good Cause, the Governor & Council were not asked to concur in this Appointment. After the Repeal, Mr Deberdt was continued to be employed in Compliments & other matters relative thereto in the Name of the House only without asking the Council to join therein; & he was also charged with addresses to the King,10 the presenting of which had allways before been esteemed the particular business of the Governor. As the Scheme grew riper He was employed by the House in all provincial Business which they concerned themselves in, without their consulting the Council in any such Business: so that at last the standing Agent of the Province became a Cypher.

    This led to the dismissing Mr Jackson by a formal Vote.11 I suspended giving my Consent to this dismission till I could expostulate with them concerning the [ex]pediency of accompanying their dismission with payment of which they had been ^allmost^ wholly negligent.12 But finding them not disposed to act that part which honour & justice dictated, I consented to the dismission13 least they should found14 a pretence of abolishing the Office of Provincial Agent upon my refusal. And now the Scheme was compleat; for instead of joining with the Council in choosing another Provincial Agent, as had been allways usual in the like Case, the leaders of the party declared that they saw no occasion for a provincial Agent; it was sufficient that the House had an Agent; they did not see that the Council or the Governor had any business with the Agency. And in order to fix Mr Deberdt as standing Agent for the House, altho’ there never was any formal appointment for that purpose, a Vote was sent up to the Council15 for the grant of 200 pounds “in full for his Services as Agent for this House at the Court of Great Britain, for one year ending the 5th day of Novr last.” This Vote by the contrivance of some & the inadvertence of others was carried thro’ the Council at a time when there were but 8 persons, out of 18 who were then attending the business of the Council, present at the board, & of them scarce one half attended to the business. So that I negatived it apparently with the Opinion of the Majority of the Council before whom it was pretended to be past.16

    An Agent for the House of Representatives of the Province of Massachusetts Bay at the Court of Great Britain is quite a new Character; & if it should be admitted, it would give great Trouble to the administration of Great Britain, & make a kind of Revolution in the Government of Massachusets Bay. As I see this Business in this important light, I cannot excuse myself giving your Lordship the earliest information of it, that if your Lordship shall think it expedient, care may be taken to give a Check to this new establishment in time. Mr Deberdt is now charged with many provincial Affairs entirely of a general nature, especially with the Question about the Lt Govr’s sitting in Council, which being a regulation of the Council board, the House properly had no business with. In all these Instructions The Council were never consulted; except only in regard to the line bounding Main & Newhampshire. For this business the House appointed Mr Deberdt: but being obliged to send up the Vote to the board, upon other accounts, the Council non-concurred it, & passed a Vote that the person to be charged with that business should be chose by joint ballot. This the House submitted to, & Mr Deberdt was chose17 & consented to & commissioned by me. And this is the only business which Mr Deberdt is duly and properly authorised to transact on the behalf of this Province.

    As I have made this Article, which I think to be of great Importance so long, I shall not trouble your Lordship with other instances of the House’s assuming to themselves the sole Management of Business either belonging to the Governor & Council jointly with the House, as the Agency is, or to the Governor & Council solely as the executive power. Some of both kinds have been taken notice of by me in the Council, & by that means have come round to the House. And I desire not to be understood to charge the generality of the House with an intention to assume an unconstitutional Authority. This intention is apparent in the Leaders of the party; but their followers may not see the purposes & Consequences of these proceedings. In such Cases they will be more easily remedied; but they are not less inconvenient & hurtful at the present.

    I am with great respect, My Lord, Your Lordship’s most obedient and most humble Servant,

    Fra Bernard

    The Right Honble The Earl of Shelburne.


    As in the foregoing Letter I have mentioned the impropriety of the House of Representatives keeping an Agent of their own & addressing his Majesty without the Mediation of the Governor, I think it proper to subjoin a testimonial of the Opinion of the Lords of Trade in Queen Ann’s Time upon this Subject. It appears in a letter of the Lords of Trade to the Govr of Massts Bay, dated May 26, 1704 (within 12 years after the Grant of the present Charter)18 now lying before me:

    “We have not seen the address you mention to have been sent over by the Assembly without your Concurrence, ^to excuse^ their not rebuilding that fort. We can by no Means approve their proceeding in this Manner, it is very unfit that Assemblies should make Representations to her Majesty by particular Agents of their own, without the Consent & Knowledge of her Majesty’s Governor, except ^it be^ in Cases where the Governor refuses to transmit or report what they desire: which you will intimate to the Assembly on such occasions as you shall think proper.”

    I am well assured that if the Assembly was obliged to observe this rule (which is now above 60 years old & is an explanation of the refusal of a special Agent for the House at the granting the Charter) It would save his Majesty’s Ministers for America a great deal of Trouble. Addresses to his Majesty not transmitted by his Governor, & Letters from the House directly to the Secretary of State are practices quite new & are the Symptoms, as well as the Effects, of the discord & disorder, which has been artfully work’d up in this Government.

    P.S. Ap 13.

    I have been very unwilling in the foregoing letter to make any observations on Mr Deberdt’s Agency which should reflect upon him. The Character which he bears of being an honest inoffensive well meaning man must bespeak great allowance for what shall arise from want of judgement or inadvertence. But really his fondess for his new Office, & his earnestness to please his Constituents leads him into writing letters which do great hurt by encouraging the Opposition, & discouraging the friends to Government. The Access He has had to Ministers of State, He has improved by amplifying & extending evry expression of favor or even of common Civility on the behalf of the Party which he is employed by. And as it is their business to use all means to keep up the Spirit of their Faction, all Mr Deberdt’s letters which will answer that purpose are printed in the Newspapers. This greatly adds to the impropriety of the informations, as these papers are regularly transmitted to London, & made a fund of intelligence for the London papers. I could have communicated to your Lordship instances of this long before now: but I was unwilling to take notice of them. However, a paper which is just now come into my Hands makes it necessary for me to add this P.S., which your Lordship may consider as part of the letter, or detached from it, as you please. A A are Mr Deberdts letters, B the factions improvement of them.

    ALS, RC      CO 5/756, ff 63-67.