325 | To the Earl of Halifax

    Boston Decr. 7. 1764.

    My Lord,

    Ever since I have been Governor of this Province, I have endeavoured, among my other Duties, to observe that which regards the laws of trade. And I have all along desired to preserve a due medium in not giving too much or too little attention to that department. For which purpose, I have allways avoided intermeddling in the ordinary business of the offices, & have been ever ready to advise & assist the officers in extraordinarys, such as discovering frauds, & seizing & prosecuting forfeited Goods &ca.

    It happened that upon my first entring upon this Government, there was a particular occasion for my exerting myself in defence of the Admiralty & Custom House Officers. This Business, which afforded the most turbulent scene of Government that I ever knew, I could entirely have kept clear of, if I had thought myself at liberty to have purchased my own ease by giving up the Custom House & the Court of Admiralty. But I chose to put myself in the Gap, & joining my Authority to those of the Judge of the Admiralty & the ^(then)^ Surveyor general,1 I entirely defended the Machinations of a formidable confederacy intended to annull & avoid the Laws of trade. The disappointment was so great, that my Conduct upon the occasion, has to this day been neither forgotten nor forgiven by the unfair traders.2

    For a long time before I entered upon this Government, & for above 2 years after, It was the constant usage of the officers of the Customs, whenever they made any discovery of frauds or any seizure of forfeitures immediately to acquaint the Governor therewith, & to take his directions concerning the Prosecutions. This I conceive was done, both on account of the superintendency, which the Governor by his instructions has of trade, & for the interest which by Law, he has in the forfeitures. And in pursuance of this method many seizures were made, & prosecuted effectually during such first two Years.

    But when Mr Temple came here as Surveyor general, He presently discovered an haughty jealousy of me & my office; & taking offence at some omissions of Ceremonials, (which he thought derogatory to his dignity, but which were not only not intended, but also positively disavowed by me) He came to an open rupture with me; & in the course of it treated me with indignities, which I shall be ashamed to own to your Lordship that I submitted to, from a reluctance to trouble my Superiors with personal complaints. These at present I do not intend to state to your Lordship, as it is my desire to enter into personalities as little as possible; but to keep to my purpose, the Regulation of trade, & the Relation of my duty thereto.

    From thence it became dangerous for Officers of the Customs to consult me about matters of trade; they who did so were certainly treated with uncommon severity; Seizures were made & quitted without my being acquainted with the Reasons for Seizing or quitting; prosecutions have been dropt when the fraud has been notorious, without my consent being asked; And it has more than once happened, that I have been made acquainted with the particulars of the contraband goods seized & the manner in which they have escaped from the talk of the town, when I have had no account of it from the Custom House Officers. But this has happened only in Cases, where the Surveyor general has taken the conduct himself: One of which I shall presently give the particulars of.

    Above a year ago, the Surveyor genl,3 & I were brought together, and a Reconciliation took place: which was sincere on my side, as I really have been at all times desirous to be upon good Terms with the Surveyor genl, if they were to be had without sacrificing the dignity or duty of my office. Soon after the New Regulations for inforcing the Laws of trade took place, & I received the strict & peremptory orders which were dispatched from your Lordships office to me, as well as to the other Governors in America,4 I endeavoured to avail myself of this incident to remove from the Surveyor genl. that ^Jealousy^, or whatever else it was to be called, which I found must constantly engage me in a quarrell with him, whenever I should find it necessary to interfere in affairs of trade. I therefore communicated to him the late orders I had received, & represented to him how impossible it was for me (who had allways made a point of implicit obedience to the orders of his Majesty signified by his Ministers) to be unconcerned at notorious frauds of trade. All the answer I could get consisted of trade’s being his department & not mine, & that each should keep to his own department. I urged that his Majesty’s instructions to me in regard to trade, greatly exceeded in Quantity of Paper, his instructions in regard to Government; & therefore I could not conceive, that it was intended that the former should be considered as matter of form only: but if it ever could have been so understood, the late letters from the Secretary of State surely now put it out of all doubt. Still, Department was the word, & Trade was not mine.5

    Thus Matters stood, when about June last, Capt. Dougdale, Commander of a Man of War Cutter lying in this port, seized the sloop [blank] having on board 140 hogsheads of Molasses, which were certified to have been cleared out at Falmouth in Casco bay, but it did not appear upon the clearance whether the Molasses was foreign or British.6 It seems that Capt. Dougdale made this seizure by an officer of his & not by himself, altho’ so near to his Vessel as to be within his View. Indeed the Act of parliament called the Molasses Act, authorises any person whatsoever to prosecute: Nevertheless, an Officer of the Customs was sent on board who seized the Vessel again & took her from the Officer of the Navy. The Captain complained of having his Capture taken from him, but was soothed with a promise that as this was matter of form only, he should nevertheless have a third of the condemnation money. The Surveyor genl. took the direction of this business; and it was soon Known that no prosecution was intended: and then the Captain was very loud in his Complaints of being disappointed in his Seizure.7

    The Truth of this Case was presently known to all the Town, and was this: The Molasses seized was part of upwards of 400 hogsheads brought from Cape Francois  in the Ship Sally, belonging to a Merchant of this Town ,8 which sailed from this port some months after the new orders for the strict observance of the laws of trade came hither;9 & therefore he knew that no indulgence in regard to foreign Molasses was to be again expected. Accordingly, the Ship instead of coming into her own port, went into Casco bay & anchored among the Islands there: and there put these 140 hogsheads on board the Sloop having taken out a clearance from the Custom House at Falmouth for that quantity, not specifying whether foreign or British. The Master of the Sloop would not take them on board, without being indemnified for his Sloop if she was seized; & this he declared to the Custom House officers who were put on board her at Boston. The Owner of the Molasses gave out that he had paid the duties for these Molasses at Falmouth, & that he would send the Master down & fetch a certificate. Not a single person in the Town, I dare say, believed that the Duties had been paid: and yet he was suffered to go upon this business, without any officer of the Customs or of the Navy, being employed to counterwork this Collusion.

    The clearance of these 140 hogsheads of Molasses appeared not to be signed by Mr Waldo, the Collector of Falmouth, but by his Deputy, Mr Waldo being at that time attending a Court of Assizes at a distance.10 I had a regard for Mr Waldo, upon account of his connections, & also of his personal merit; & foreseeing that endeavours would be made to screen this fraud by antedated entries, I spoke to a friend of Mr Waldo’s,11 to caution him against his making himself a party in this business.

    This Gentleman communicated what I said to the Surveyor genl; who soon after took notice of it to me, with the usual complaint of my interfering in his department. I told him that this Fraud was so public & notorious, that I could not excuse myself enquiring into it so far as to satisfy & justify myself. He said he intended to enquire strictly into it, & had sent for the Collector to come to Town for that purpose. I told him, that if the Collector would answer me one question upon oath, I should be satisfyed: this was, whether the Duties of the 140 hogsheads of Molasses seized by Capt Dougdale, were really & bonâ fidê paid at his office before they were seized, to the best of his knowledge & belief. The Survr. genl. repeated in general terms, that I should be satisfied in it: and I left it to him.

    Some days after, Mr Waldo, the Collector of Falmouth came to my house, & said that he waited upon me by order of the Surveyor genl, to be sworn to a deposition which he showed to me, & was in the following words:

    I Francis Waldo, Collector & Surveyor of the port of Falmouth, New England, do testify that in my absence at York in June last, the Ship Sally, Daniel McCarthy Master, entred with Daniel Wyer, my Deputy, from Cape Francois, with a Cargo of foreign Molasses, upon the whole of which entry, that the Duty of 6d per gallon is accounted for, and this I have reason safely to believe, as I dont find on enquiry, that the said Wyer had any consideration made him by the concerned in said Ship. Furthermore I do declare that I have not connived at any fraud being committed in regard thereto, & have given credit for the whole Sum that is due upon said entry.

    Boston, July 21st, 1764.      Fras. Waldo.

    I told him that this Deposition could give no satisfaction in regard to the 140 hogsheads seized by Capt Dougdale, as it did not appear that the Duties of the Molasses mentioned in the Deposition were paid before the seizure of the 140 hogsheads, nor that the 140 hogsheads were part of the Molasses for which the duties were paid. That if this Deposition was applied to the seizure, it must be considered as an Evasion of the main Question, which was, whether the duties of the 140 hogsheads seized by Capt Dougdale, were actually paid before they were cleared at his office for Boston. I therefore recommended to him to amend his deposition, & give a positive answer to the Question concerning the 140 hogsheads. He answered that he was ordered to swear to this deposition, & had nothing more to say. I told him, that his refusing to answer this Question would be a presumptive proof of the negative of it; since it must be presumed, that if he could answer in the affirmative, he would not refuse to satisfy me that the seized Molasses was legally imported. He still answered in the same Words almost, if not quite precisely, that he was ordered to swear to the deposition, & had nothing more to say. I then told him, that I was sorry that he would make himself a party in this business; that I should be obliged to represent it to your Lordship; and that I should do it as favourably to him as his present Conduct would permit.

    Mr Waldo has heretofore been unblameable in his conduct as an officer, as far as I have heard; & in no instance but this has been wanting in respect to me. Therefore when he refused to give me an Answer concerning a fraud of trade supposed to take its rise in his Port, & made that refusal apparently in a set form of words, I must suppose that he acted therein by the express order of the Surveyor general. The Molasses for which he received duties amounted, as I have heard, to 260 or 280 hogsheads, I forget which: Be it either, It must be supposed to be the remainder of the Ships Cargo, after the 140 hogsheads which were seized, were taken out; as the whole of her Cargo was publickly said to be above 400 hogsheads. However the 140 hogsheads were delivered up to the Owner by order of the Surveyor genl, no[t]12 only without my consent, but contrary to my protestation; the Captain of the Cutter was loud in his complaints in being defrauded of his Seizure, and I was given to understand, that I had not authority enough to oblige a Customhouse Officer, to give me an answer to a question concerning a fraud of Trade.

    I found myself by these proceedings of the Surveyor general totally incapacitated to do anything to prevent frauds of trade: & was reduced either to give myself no further trouble about trade, or to make a formal complaint of the obstructions I met with in doing my duty in regard to it. Complaining is to me a most disagreable task: but I saw it was unavoidable; & foresaw that if I passed over this indignity, I should be sure to suffer others upon the first occasions that offered. Whilst I was ballancing upon this, A fresh incident determined me, & left no room to doubt what part I had to act.

    Mr Cockle, the Collector of Salem, informed me that he had made a discovery, that very large quantities of foreign Molasses had been brought into his port as British under false clearances. I determined that this fraud should not escape unnoticed; and therefore sent immediately for the Advocate genl, & advised with him concerning the prosecution: he said it must be on the Molasses Act, & took instructions for Libells; which it was agreed must be filed immediately, least The Offenders should set up collusive prosecutors, which they had a power to do by the Act. It was also thought necessary to apply to the Governor of Antego13 for proofs for the frauds: I offered to cover Mr Cockle’s letters with letters of my own; but that it must be done immediately, as I was to sail for the Eastern parts of this Province on Monday, this being Saturday. I accordingly took Mr Cockle with me to Castle William that afternoon, & we were employed all the next day in preparing these dispatches. On Monday morning Mr Cockle waited on the Surveyor genl, & acquainted him with what he had done: He sent for the Advocate genl, & in the presence of them both, abused me by name with gross language for having concerned myself with the prosecution. Mr. Cockle felt all the effects of resentment, which a violent use of power could inflict upon him; & after many altercations of different kinds; was suspended from his Office.

    I must not conceal from your Lordship, that among the Causes assigned for Mr Cockle’s suspension, there is a charge of Mr Cockle’s having received a bribe: but it is much doubted whether the Survr. genl. himself believes him guilty of that charge: No one else that knows anything of the affair gives any credit to it. It has been contradicted by the Oath of one of the Parties said to have given the Bribe, by the transaction itself, by the genl. conduct & character of Mr Cockle, by the Opinion of evry person of credit acquainted with Mr Cockle & his Office. I can assure your Lordship that I have talked with 20 or 30 persons of the best knowledge in these Affairs, & of the first Reputation in these parts, who have in general declared to me their Opinion that Mr Cockle was suspended for consulting me in this prosecution; and that the charge of bribery was no more than a supplemental article to help out the Weakness of the principal charge. I have been assured that it has been a common talk among the lower sort of fraudulent traders, “That the Survey[or]14 genl. has suspended Mr Cockle for prosecuting foreign Molasses, & that they hope he will get the Govr. turned out for assisting therein.” In short if the Surveyor genl should succeed in his Scheme to get this Man turned out, which he has declared he will spare no pains to effect, It will afford the highest triump15 for smugglers & fraudulent traders, which they have known within my time, or perhaps, at any time whatsoever.

    The cheif pretence for the Surveyor genls censuring Mr Cockles prosecution, is that he ought to have obliged these delinquents to have paid the duties to the King, instead of prosecuting the goods, that is, he should have converted the forfeiture, long after it had taken place, into a duty. And in this, He was so sanguine, that after the Judge had decreed the Goods to be forfeited according to the Act, He wrote to the Judge a letter, desiring him to decree the whole money to the King for the duties of the forfeited goods: to which the Judge answered, that there must be a proper application to the Court; & before such application, it has best be considered, whether what he desired was practicable.16 I will then consider it 3 ways: 1st, whether in such case the converting the forfeiture into duties, is legal, 2d, whether it is practicable, 3d, whether it is expedient.

    It happens in this Case, that the Surveyor genl is of Opinion on the one side, & the Judge of the Admiralty, the Advocate genl, & the Attorney genl are of the other. The two latter have given their Opinions in writing:17 the Attorney genl, was desired by the Surveyor genl. to move the Court, that the whole money might be decreed to the King; but declined it, as not to be supported by law or Reason. That it was not legal, they argued, that when a forfeiture had once accrued, a right vested in the Governor, & in this case in the Government also, to whose use the Kings third is given by the Act: and that such  right being once vested by law, could not be divested by any discretionary Acts of the Custom House officers. That it was not practicable, appeared from this, that the payment of the duties would not defeat the forfeitures, nor prevent the Merchants being prosecuted for them. But after the duties had been paid, they might be prosecuted by any Person whatsoever for the forfeiture, & and the payment of the duties would be an evidence of the forfeiture & make the recovery of it quite certain. It could not be expected that the Merchants would pay the duties, when such payment would more & more expose them to the forfeiture. The Expediency of such a practise I shall consider more at large.

    I dont wonder at the Surveyor genls, desiring the excercise of a power of converting forfeitures into duties. For if He could establish in himself a discretionary right of dispensing with the penalties of the law by admitting those who have attempted to break thro’ them, to a reconciliation upon their Submitting to what they cannot avoid, he would be by much the greatest Man in America: as all the Merchants in his district, who would choose to try Experiments & to run risks, would be dependent upon his favour, & constantly sollicitous to engage & procure it. But nothing could give greater encouragement to illegal trade, than this practise; as it would amount to a kind of insurance of attempts to run goods in case they should fail. I have been long ago advertized of intended schemes of the illegal traders, to conduct matters so, that if they were prevented in running the Goods, they should nevertheless be admitted to an Entry.

    The practise of the Ship Sally in carrying her Cargo into Casco bay, instead of coming into her own port directly, is a barefaced attempt of this kind. Evry Gallon of that Molasses was designed for Boston; & if the first parcell that was seized had been permitted to come in under that clearance (which took no notice of its being foreign Molasses) probably not a farthing of duty would have been paid to the King. The Collector’s Clerk who made the Entry & received the note for the duties (for it is not pretended that any money was then paid) has never been, that I know of, examined concerning the times that the Entry was made & the Note given; nor whether the 280 hogsheads was the whole Cargo (which it is notoriously not believed to be); whether the 140 hogsheads were part of the 280; how he came not to mention them to be foreign Molasses, duty paid, in the clearances &ca. If I had been allowed to have examined him when the matter was fresh, I am satisfyed that the truth would have come out, whatever it may do now. But finding I could not get an Answer to a plain Question from the Collector himself, I had no reason to think that I should have better success with his Clerk.

    The very history of this Ship was sufficient to render her very suspicious: She had not of late been used to go in or out of Port without being seized. In going out of Boston for the very Voyage to Hispaniola, from whence she brought these Molasses, She was seized by Capt Bishop of the fortune Sloop, for having on board unbonded Rice; & condemned & sold, & was purchased by the same Owner .18 When She came into port, the time immediately before this, She was seized upon an information that She had Dutch Gunpowder on board not in the Manifest. The Surveyor genl , ordered Officers on board to see her unloaded: they proceeded in it ’till they came to the Gunpowder, & saw the Barrells it was in. And yet means were found to get the Gunpowder out of her privately: the Officers were reprimanded for their Neglect, & the Ship was discharged. This is the Ship, whose last frauds I was not permitted to examine into.

    I am therefore at no loss to account for the Surveyor genls. resentment against Mr Cockle for prosecuting those frauds; for suspending him for so doing; for abusing me for advising such prosecution; & for endeavouring to convert notorious frauds and forfeitures into regular Entries & payments of Duties. It is all consistent with a system for assuming a Power of dispensing with penalties & forfeitures at discretion; making the Traders dependent upon, & subservient to one only; intimidating the Officers from taking any advice or having any will but his: & tiring out the Governors, by repeated insults & indignities, for intermeddling with frauds of trade.

    But, My Lord, I have a Duty of my own, which I cannot dispense with; I have your Lordships orders which I cannot disobey: and if Mr Temple persists in my not concerning myself in Matters of trade, he must procure me better Authority than his own to warrant my Neglect. I have from an unwillingness of troubling my Superiors with complaints, submitted to many indignities, & overlooked some suspicious proceedings. But that time is over: and your Lordship may be assured, that from hence I shall freely animadvert upon frauds of trade, & the conniving at them, without making any distinction between great Men & small. If the Surveyor genl, has any complaint to make against me, (as I hear he says he has) let him speak out & loud; For I defy all Mankind to charge me with a single Act of Corruption, since I have been in the Government.

    I should have wrote this to your Lordship two months ago: but the large dispatches I then had upon my hands for your Lordship & the board of Trade, & the meeting of the Assembly, & the importance of their deliberations, & other incidental business has obliged me to postpone this, which being more my own concern, I could take the greatest Liberty with, to the present time. I am extremely sorry, that this Subject is extended to so much paper: But being desirous to state to your Lordship the difficulties I lay under with sufficient explicitness. I could not express myself in less compass.

    I am with the greatest Respect, My Lord, Your Lordships most obedient, & most humble Servant.

    Fra Bernard

    The Right Honble The Earl of Halifax

    P.S. I shall enclose with this the following papers:

    Copy of the Survr. genls, letter to the Judge of the Admiralty, & the Judge’s answer.

    Copy of the Advocate general, & the Attorney general’s Opinions concerning Mr Cockle’s prosecution.

    To which I shall add a copy authenticated of the Certificate of my Opinion of the general Conduct of Mr Cockle as an Officer, which is drawn with a strict Regard to truth, & contains, as far as my knowledge & belief reaches, all that makes against him, as well as what makes for him.

    ALS, RC CO 5/755, ff 169-182.