711 | To the Earl of Hillsborough

    No 33

    Boston, Nov 14 1768

    My Lord,

    I come now to consider that part of my orders which relates to the reforming the bench of Justices: this is to be done by two ways, 1, by adding new Justices to the present bench, either by engaging Gentlemen who are allready in the Commission to qualify themselves, or by granting new Commissions to fit persons who will undertake to act; 2, by removing such persons in the commission who are known to be infected with principles of disaffection to the constitutional Authority of parliament. The first of these is practicable in both its branches; the second is at present absolutely impracticable, and will remain so whilst the Council make the humouring the people their cheif object.1

    In regard to the first, I have allready made some attempts to engage some Gentlemen now in the Commission to qualify themselves & shall pursue it; and notwithstanding the undertaking is Very discouraging, I expect I shall have some success. I have also made an Essay to appoint new Justices who would engage to act, by naming one Very fit person. It was received Very cooly by the Council; & upon my asking the reason, I was told he was not popular; I replied that if he had been I should not have named him.2 As He was allowed to be in evry other respect a most unexceptionable Man, it passed unanimously: but it gave me to know what I must expect if I proposed a Man who was not popular against whom Any exception could be taken. But I shall soon try again.

    As for removing persons for their opposition to the Authority of Parliament by means of a Council3 a majority of which has (indirectly at least) avowed the same principles, & now appears to act in concert with that party from whence the Opposition to Parliament originated, it would be an Attempt contrary to all rules of policy & prudence. It would be required to be done by a public Enquiry, which would receive all the obstruction & embarrassment which the Chicanery of Law could invent; and if after all, full proof of a disaffection to the authority of parliament should be made, it would be declared not to be relevant to infer such a Censure. It will therefore ^be^ in Vain to attempt to punish Disaffection to the Authority of parliament, untill the Criminality is better established than it is at present. To support this conjecture in what manner the Council would act in such a proceeding, I need only refer your Lordship to their conduct & the papers they have published within these two months last past.

    And yet, my Lord, I would not insinuate that We have no fit objects for such a Censure: the Sons of Liberty have not been without Magistrates. We have seen Justices attending at Liberty tree; one to administer an Oath to the Stamp Master, when he was obliged to swear that he would not execute his Office;4 another to perform the function of Toast Master; a third, but lately, to consult about fortifying the Town; others to make up’ the procession of 45 carriages & 92 persons on the 14th of August last. All these are included in two lists which your Lordship has, that of the 5 select men who signed the circular letter for the convention, of which all but the first are in the commission, & that of the 8 Justices who signed the refusal to billet the Soldiers.5 Now if the Censure of these proceedings should produce an Order to me to supersede the Commissions of these Gentlemen, It would be a trial of the power of the Governor: It seems at present that the Council would not enable me to execute such an order.

    It is a great defect in this government, that the King has no power over the commissions, which are granted in his name & under his Seal. He can by order in Council disallow a Law which has been passed by the Governor Council & House of Representatives: but yet He cannot supersede a Commission which has been granted by the Governor & Council. And yet the Council of this province is as much out of the Controll of the King as the House of Representatives is. Wherefore It seems as reasonable that the King should be allowed to correct the mistakes of the Governor & Council, as of the Governor Council & House. As it is, when the Governor has once set the King’s Seal to a commission, it is for ever out of the hands of the Crown, and the person who has obtained it may thenceforth defy the King, oppose his Laws & insult his Government & be in no danger of losing his Commission. It is true, the Governor with the advice of Council can supersede him: but if he acts in a popular Cause, under which Opposition to Government finds it easy to shelter itself, the Council, who are themselves the Creatures of the people, will never join with the Governor in censuring the Overflowings of liberty. It may be said that the Governor should take care not to appoint any one whose Character is not well known. But the Governor does not personally know half of those whom he appoints to Offices: it is not therefore in his power to guard agst imposition, let him be ever so cautious. Besides, a Man’s political Character often does not appear till he is got into an Office & thereby held forth to the publick. Hence It is not unusual for a person, who has not distinguished himself in political matters, to get himself recommended to the Governor, as a Man well disposed to government; and as soon as he has received his commission, to declare for the party of the Sons of Liberty. The Governor may resent the imposition as he pleases: but he cant undo what he has done. Thus the Commissions of the King, like his Cannon upon another occasion, are turned against him.

    It would serve to remedy this abuse & strengthen Government if the King was enabled by order in his privy Council to supersede Commissions granted in his name & under his seal, when they shall appear to be granted to improper persons or made use of for improper purposes. This must be done by Act of parliament and I don’t see the impropriety of such an Act; it seems to me to be a proper power to be vested in the Crown; especially at a time when the Crown wants to be strengthend by all legal Means, in this Country. And it seems6 that it would be better to be done by a general ^Act^ than a partial one: for such a power may be wanted in the royal Governments, notwithstanding the controll the King has over the Councils. For It is Very possible, considering the Spirit which now prevails, that even a royal Council may support a popular magistrate against the intrest of the Crown. And if the Colonies should prevail to have the Judges Commissions during good behaviour, which some of them are now Very earnest about, It might be proper that the King in Council should be empowered to judge & determine upon such misbehaviour as would avoid the Commission. But this will not be necessary if the general instruction of granting No Commissions but during pleasure be continued & observed; Nor will it be necessary that such an act should be general; It is more wanted in this Government than in all the others together: and even here the Defect would be cured by a Royal Council.

    I am with great respect, My Lord your Lordship’s most obedient & most humble Servant

    Fra Bernard.

    the right honble the Earl of Hillsborough.

    ALS, RC     CO 5/757, ff 526-529.

    Endorsed: Boston Novr. 14th. 1768. Govr: Bernard. (No. 33) R 30 Decemr. A.68. Encd. No enclosures have been found. Variants: CO 5/767, ff 175-181 (L, RLbC); BP, 7: 103-108 (L, LbC); Bowdoin and Temple Papers, Loose MSS (L, Copy); Boston Gazette, 23 Jan. 1769;7 Copies of Letters from Governor Bernard to Hillsborough; Letters to Hillsborough (1st ed.), 12-14; Letters to Hillsborough (repr.), 21-26. Copies were presented to Parliament on 20 Jan. 1769.8