Appendix 3


    [c.Jul.-Aug. 1767]

    Governor Bernard in his Correspondence dwells particularly upon three Points, and calls repeatedly for the Support of Government relative to them, viz The Right of the Lieutenant Governor to sit in Council; The Governor’s Right to put a Negative upon such Persons chosen into the Council as he does not think properly qualified for that office; and the Choice of a Provincial Agent which he thinks ought to be in the three Branches of x x x x x x x x the Legislature, and not in the Assembly alone.

    The Letters which refer to the first Point are dated 7th. Febry. 1766. No. 5. 4th. May 1767. No. 13. 30th. May 1767 No. 15. & 6th June 1767. No. 16.1

    And the Letters which refer to the third Point are dated 20th. March 1767. No. 11. & 22d. June 1767 No. 17.2

    But as other Matters, which have already been answered, are blended in these Letters, Extracts of such Ports as refer to these Matters alone are sent herewith, reduced to the heads 1. 2. & 3.

    In regard of the first Point that of the Lieut. Governor’s Seat in the Council, the Attorney General3 is of opinion that such Right cannot be legally claimed by virtue of any thing contained in the Charter or Constitution of this Province; indeed this seems to have been acknowledged by the Lieutenant Governor’s being a Candidate for a Seat in the Council, for had it been indubitably his Right by his Office there could have been no Necessity for his submitting to be elected. On the other hand the Attorney General thinks that the Gentlemen of the Assembly went much too far in saying that the Lieut. Governor’s sitting in Council was illegal and unconstitutional, inasmuch as his being the second Person in the Government, and liable upon any Accident befalling the Governor to take the Command of the Province makes it very requisite that he should be well instructed in every thing which passes relative to the Administration of publick Affairs; which, exclusive of the Respect due to the Governor whom he is supposed to attend in Council ought to entitle Him to sit there, without however interfering in Debates unless a Councillor by Election.

    The Usage of the Province has been mostly in favour of the Lieut. Governor’s Seat at the Council. There is however a Precedent for the contrary but that arose from a Disagreement between the Governor and Lieut. Governor. vide Letter. 7th. Febry. 1767 4

    In regard to the second Point, The Governor’s Right to use his Negative is very express and clear from the Words of the Charter which says that “in all Elections and Acts of Government by the General Court the Governor shall have the Negative voice, and without his Approbation they shall be of no force.”__ But it would seem that this Right should be used with great Discretion in a Constitution which has made the Council elective annually, and of course which puts it in the Power of the People to renew the Contest every Year.

    As to the third Point or right of chusing an Agent it is necessary to consult the Board of Trade for the Customs and Usages respecting the Colony Agents in general. And it probably will be found that although the Agents receive the Assent of the Governor and Council, yet that the Choice has generally been made by the Assembly who think themselves entitled to that Privelege in right of the Province which they make for them. __ It would seem however that whatever Agent the Assembly chuses should be deemed a Provincial Agent, and not a particular Agent for the Assembly, which as Governor Bernard observes is a new Appointment, not supported by the Charter or Usage of the Province.

    Ms, AC      CO 5/756, ff 83-84.