340 | To the Board of Trade

    Boston Ap 8 1765

    My Lords

    I have now before me the sevral Acts of Assembly which were passed last Session; & shall proceed to observe upon such of them, as shall appear to me to require particular Notice.

    An Act for allowing necessary supplies to the Eastern Indians &c.1

    This Act I am obliged to labour evry year to carry thru the house where the prohibition of the English hunting in the Indians Territories meets with great Opposition.2 But I am so sensible of the necessity of supporting such a prohibition in order to keep the Country in peace that I shall never give it up. It will be impossible to reconcile the Indians to the frequent settlements upon the Eastern Coasts, which we may expect to see now continually encreasing, unless the Indians are quieted in their hunting grounds, upon which, as they observe, their Very being depends, & in my opinion, the fur trade of that Country also: as the Indians take care to preserve the breed of beavers; the English hunters do all they can to extirpate it. I have allready wrote to your Lordships upon this subject:3 so shall only add that I cant assure myself that I shall be able to get this necessary prohibition continued beyond the time of the present Act (to June 1766) tho I shall use my utmost endeavours to do it.

    An Act for preventing frauds in Debtors & for securing the effects of insolvent debtors &c4

    This Province has long laboured under the Want of a Bankrupt Act. About 8 years ago An Act of this kind was passed; but it was disallowed by the King,5 upon exceptions urged, as it was said, by some of the London merchants trading here. This Act was Very Voluminous, & therefore it could not be well expected but that it must have some exceptionable clauses in it. But it is a pity that the Gentlemen that took exception to it did not signify the particulars which they excepted to; that another bill might have been prepared free from such exceptionable parts. As it has been of late, evry Insolvency has afforded instances of great partiality & injustice. The common Method has been for the Creditors who get the earliest advice of a persons becoming insolvent to sue out attachments against the goods & credits of the insolvent, according to the Custom of the Country, & help himself to such part thereof as he pleased. A general scramble ensues[;] there is no regular audit of the Accounts of the Creditors; The goods are sold in an hurry at a low Value; and great part of the effects of the debtor are spent in law proceedings & contests between contending attachments.

    This has been felt & complained of ever since I have been Governor here; but no adequate Remedy attempted till of late. This Winter a Gentleman, who had acted considerably as a Banker, stop’t payment for £170,000 sterling. This was like an Earthquake to the Town: numbers of people were creditors, some for their all6 Evry one dreaded the Consequences; Lesser Merchants began to fail; a Stop to all Credit was expected; & a general Bankruptcy was apprehended for a time. In this state of things Application was made to the general Court for present relief:7 but it was difficult to say what could be done there. I could not consent to another Bankrupt Act, because I knew not what were the exceptionable parts of the former Act. At last it was thought proper to send to New York for copies of their Acts for the releif of the Creditors of insolvent Debtors; which having his Majesty’s consent either tacit or exprest, it was presumed that a Bill of the like nature would be admissible here. From the New York Acts this Act has been framed: and it does not, that I know of, differ materially from them.8 It must be expected that Experience will point out some necessary emendations of this Act: and therefore it is enacted only for three years. This Circumstance gives me an opportunity so to recommend it to your Lordships, that if Exceptions should be taken to some parts of it only & not to the general purport of the Act, Your Lordships will be pleased to signify what alterations you would have made to it, that the whole may not be condemned for particulars only: for some such Act is absolutely necessary for the trade of this Country. I wish it was more in the nature of the English Bankrupt Acts; so as to prevent partial Attachments especially private ones: but All cannot be done at once.9

    An Act for establishing & regulating the fees of the sevral officers within this province &c.10

    This is a temporary Act which is frequently renewed. There are some alterations & additions which make this Act different from the former which it is not worth while to trouble your Lordships with. I have before observed to your Lordships, that there is a perpetual Act for fees, which this temporary Act differs from & thereby partially repeals the perpetual Act. This is an Irregularity: but it has subsisted so long before my time, that I cant take exception to it. This Act is enacted only for three Years.

    An Act for granting unto his Majesty an Excise &c.11

    This is an annual Act of Revenue: it differs much from the former in the means of carrying it into execution, which are made more easy to the traders than the former. It also differs in the excise of Wine, which is but two thirds of the former Act; upon account of the parliamentary duty. Nevertheless Wine is heavily loaded; the whole of the parliamentary, Excise & Tonnage duties amounting to £13 7s. 6d. sterling pr Ton. But as this Act got thro’ the general Court with great difficulty, It is expected that It will not be renewed next year: the consideration of the provincial Debt12 got it thro’ this time & may possibly one year more; but it will not exceed that.

    An Act for granting unto his Majesty several rates & duties of impost & tunnage &c13

    This is also an Annual Act of Revenue: it differs from the former in the form of the Oath, in the tunnage upon Wine which is but half of the former, & in charging Bar Iron with a certain duty instead of a poundage of the Value: I think there is no other material difference from the former Act.

    An Act to carry into Execution an order of the general Court for numbering the people &c14

    I have before inform’d your Lordships of the difficulties I met with in procuring an exact account of the numbers of the people of the province; which have been occasioned by a few wicked persons insinuating groundless fears & jealousies concerning this measure among the people.15 Above a year ago the General Court made an order for this business in the manner I desired. This order was but partially obeyed: therefore last Session The Genl Court passed the present Act, which explains itself.16 It is made a question whether this Act will be universally obeyed: however I shall pursue my purpose.

    I shall now proceed to give an account of some Bills which passed the House of the Representatives & were nonconcurred by the Council by my procurement.17 These were three, all to the same purpose: one for settling the fees of the Custom house; the other of the Naval office; and the other of the Court of Admiralty. They knew that I would not pass these Bills, if they were sent up to me: I told one of the committee (who brought them in) who paid me the compliment of informing me of what they were about, that if they altered the present actual fees in one tittle, I could not pass the bills: but if they would make the bills in the way of quieting Acts & establish the present fees; as this would make no alteration in the present exercise of the offices; I beleived I could venture to submit them to his Majesty. But this would not do: these were intended for popular acts; and therefore the fees were to be reduced at all events, whether they were small or great, reasonable or unreasonable. And therefore the alterations of the fees are made by substraction only; altho’ upon a due Consideration of a quantum meruit,18 & a regard had to the encrease of trouble from the new regulations in the Custom house, occasions would have occurred to recommend Addition.

    I do not often interfere publickly in regard to bills pending between the two houses: but in this Case I thought it necessary to acquaint the Council with my sentiments concerning the difficulties attending this business; especially as it was said in Council that the representatives did not expect that I should pass these bills, but hoped that the Council would, to Vindicate the right of the genl court to make such establishments. I represented to the Council that it had been heretofore made a question whether the American Assemblys ought to regulate the fees of the Custom house. That it had been absolutely denied by the opinion of an English Attorney general in regard to Rhode Island:19 indeed the Case was different in a Royal Government where the Kings consent was Virtually given to Acts of this kind, which have been permitted to pass without exception: but that I still doubted the propriety of them; as I could not learn that such Acts had been actually carried into execution. That in the present Case I had another doubt of no less Weight: I had lately, by his Majesty’s order, transmitted to your Lordships a list of fees taken in these Very offices;20 it may be presumed that this matter is now or Very soon will be taken into Consideration by his Majesty’s Ministers & orders made thereupon. That at such a time for us to make a new establishment of fees by a provincial Act might possibly give offence, which I was sure they would be as tender of doing as I could be. I observed in regard to the Admiralty, that Court was by express terms excepted in the Charter;21 and therefore it seemed to me that the regulation of the fees of that Court was excepted; & that the tacit consent of the King to a former provincial Act for regulating such fees would not amount to a positive admission of the province’s right to regulate that Court. That if the Bills came up to me I should not pass them upon the internal merits, if the right was out of question; and I should transmit to your Lordships the purport of these bills whether they came up to me or not: so that nothing would be gained by the Councils passing them or lost by their postponing them.__ Upon which the Council unanimously (I think) postponed the consideration of these bills; & House acquiesced in it.22

    As for the fees proposed for the Custom house, I shall enclose a paper of objections to them, which I received from Mr Hale Collector of the Customs at Boston, after I had delivered him a list of the intended fees & gave him notice to make his objections thereto, if he thought fit. I shall therefore make no observations upon this bill.

    In regard to the Naval office, I have before informed your Lordships, that since I have received his Majesty’s orders I’ve caused a table of fees to be hung up in the Naval office.23 I have taken sevral occasions to talk with some principal merchants of this province, some of whom have been used to find fault with the fees of the Naval office; and they all allow that this table of fees is fair & reasonable and I have not heard of Any one person objecting to or being dissatisfied with this table of fees. And yet the Bill proposes to lower them by one fourth; & thereby plainly showes that diminishing the fees at all events was the purpose of it. I am told that the fees of the Naval Office are inferior to those of Any other royal Government: and I beleive it is certainly true that this Naval office is greatly inferior in Value to others in Governments much inferior to this in trade & shipping.

    As to the fees proposed for the Admiralty, the most material alteration is the giving a stated fee for Condemnations where defence is interposed instead of poundage of the goods condemned. I have before acquainted your Lordships with my Sentiments upon the judges having poundage of condemnations; that it was an improper Way of paying a judge.24 But then It is the cheif part of his support which is Scanty at present: and if it is taken away without an equivalent, the Office will want support; for the fee proposed in the Bill is by no means an Equivalent. The proper Remedy for this is the appointment of a Salary in lieu of this poundage, as well as in necessary addition to the judges income. And whenever there shall be establishment of a civil list, (a regulation much wanted in America) The Judge of the Admiralty should be upon it.

    This leads me to mention another transaction which passed in the Session, altho’ I have before wrote to your Lordships fully upon the same subject. When the Judges Salaries, which are granted yearly, were moved for,25 some pains were taken to get them enlarged: in the Course of the debate it was made to appear in the House, that the whole Sum of a judges salary & fees, after deducting the expences of the Circuits, amounted to no more than £70 sterling ^pr an^: notwithstanding which They would not enlarge the Salaries. And afterwards when it was proposed to give the cheif Justice the usual addition of £30 sterling26 (the only distinction between his pay & that of the puisne judges) it was violently opposed & carried only by one Vote, that the cheif Justice of this province should have so much as £100 a year clear of expences. Upon this occasion I told some of the Members of the House, that they were taking great pains to get the payment of the Civil-list officers taken out of their hands; and I hoped their endeavours would succeed.

    I am, with great respect, My Lords, Your Lordships most obedient & most humble Servant

    Fra Bernard

    The Rt Honble The Lords Comrs of Trade &c


    In regard to the bills for directing the fees in the Court of Admiralty, the Customhouse & the Naval office, I beg leave ^to refer^ to the Votes of house mar 6 1765 pa 293-4 & pa 295

    ALS, RC CO 5/891, ff 242-248.