346 | To the Earl of Halifax

    Boston, May 1st. 1765.

    My Lord,

    I beg leave to lay before your Lordship a transaction which has lately passed in the Councils of this Province concerning the seizure of a Sloop & some Melasses within this province by the Collector of Newport in Rhode Island.

    On fryday, Apl 12, between 5 & 6 in the Evening I received a letter from the Surveyor general, inclosing an account of a riotous rescue of a sloop & some Melasses seized by the Collector of Newport, with an intimation that I should give directions to the civil Officers upon this occasion. I answered that I could not well act without the Council; that it would be difficult to get one to meet that Evening; but that I would have one summoned to meet the next morning by 9 o’clock.1 I heard no more from him that Evening, & ordered a Council to be summoned to meet next morning at 9 o’clock.

    Map of Penobscot Bay and the Maine Interior, 1765. By Francis Miller. CO 700/MAINE19, PRO. By permission of The National Archives of the UK: Public Record Office, London. Miller’s drawing was based on surveys undertaken by John Jones and Francis Miller in 1762-63 and Joseph Chadwick in 1764.  Map title: “A Plan of the Bay and River of Penobscot & the Islands lying therein commonly called the Fox Islands and the Sea Coast on the East side thereof so far as 13 Township[s] have been lately laid out, also of part of the Passage from Penobscot to Quebec by two different routs; also of the Bay of St. Croix & a Passage from thence thro’ the west branch of the River Passimaquoddy & by the River Passadamkee to Penobscot; also of a Passage from Penobscot thro’ the River Sebesticoke to Fort Halifax on the River Kennebec; also of a Road cut from Fort Pownall to St George’s Fort, being the utmost extreamity of the Settlemts in Sagadehock west ward of Penobscot. All which were Surveyed by order of [H]is Excellency Francis Bernard Esq; Governor and the General Court of the Province of the Massachusetts Bay, In the Year 1764 excepting the 13 Townships which were Surveyed by the same order in the Year 1762 & 1763. To which [is] added part of the passage of Lieutenant Montresor between Quebec and Fort Halifax by two different Routs made in the Year 1761 and the Sea Coast on the west side of Penobscot taken from an actual Survey.”

    We met at the time appointed & after waiting some time for the Surveyor genls. Papers which I had told him would be wanted at the Council, we sent to him for the Papers & informed him that we should be glad to see him at the Council: he excused him self coming, for that he was busy writing letters. We proceeded to consider what should be done upon this occasion: and the Council advised me to issue a Proclamation, to require all justices, Sheriffs, & civil Officers to use their utmost endeavours for discovering & bringing to justice the Offenders, & to support & maintain the Officers of the Customs in the execution of their Office; to command the Officers of the Militia upon application from the justices or Sheriff for aid & support to raise & march a sufficient force for that Purpose; & to promise a reward of fifty pounds to any person who should discover any of the Offenders.2 They also advised that an Order of Council should be issued to five justices in that Neighbourhood, (at the head of which was the Speaker of the Assembly, a Man of great authority in that Country,)3 to direct them to meet at the Place & carry the Purposes of the Proclamation into execution. Having, as we thought, fully provided for evry emergency, the Proclamations were immediately printed & together with the order from the justices were dispatched that Afternoon, so that they arrived at the Place, forty miles from hence, early the next morning. Some of the Proclamations, & a Duplicate of the order to the justices, were sent to the Survr genl, that he might immediately transmit them to the Custom house ^Officer^; which however I understand he did not.4

    I never was more assured that I had acted up to the full of my duty than on this occasion: but it seems I was deceived, as will appear by what follows:—Late in the Evening of the same day, the Survr genl came to my house, bringing another Gentleman with him,5 & showed me a letter from the Collector of Newport informing that he had been arrested by the owner of the Melasses.6 I exprest my Concern for it, but observed that as it was a civil action, I did not see how I could interfere in it. I said that I had allready done every thing upon this occasion which belonged to me. He said I had done nothing at all: I asked him if he had seen the proclamation & the order to the justices. He said he had & that they signified no more than so much tobacco paper: I asked him what he would have had me have done; he said, I should not have waited for a Council, but have acted by myself: I told him  I could not have acted on this occasion to good Purpose without the Council. He said, I might have ordered the Militia to be marched to the Assistance of the Custom House Officers. I told them it was not my way to employ the Militia to execute the Civil Laws; it was well enough for them to come to the aid of the civil Magistrate in case of Opposition, for which I had provided. He then said I should have sent the Officers a writ of Assistance: I answered that he knew that that was the business of the Superior Court, & he should have applied to the chief Justice. He said that he had nothing to do with the chief Justice: it was my business to procure evry thing that was wanted. I asked him why he did not come to the Council when it was met upon this business & he was asked to come; & where he would have found the chief Justice if he had wanted a writ of assistance: he said he was busy writing letters, & that he had other things to do than to wait on us. He gave me to understand that I should answer at Whitehall for Neglect of my duty: I said that if he had any Complaint to make against me, he should give it me in writing, & I should give a good answer to it; but if he came to arraign & quarrell with me, it would answer no good Purpose to talk any further. I give this as an abstract of what passed between us, which is more fully explained in the account I gave to the Council.

    Altho’ I had often before submitted to sevral personal insults from this Gentleman, yet I could not acquiesce in one directed against the whole executive power of the Government. I therefore called a Council on the Monday morning, & laid before them a Narrative of the Conversation between me & the Survr genl, which was confirmed in all material parts by the testimony of the Gentleman whom the Survr genl brought with him to my house. Whilst the Council was proceeding on this business,7 they received a written Message from the Survr genl addressed to the Council separately from me, in which he assured the Council that he intended no affront to them in such plain terms as plainly intimated that he did intend an affront to me.8 This was observed by the Council; but as they thought it would be a dangerous precedent to admit of an application to them in a body seperately from me, they agreed that they could take no notice of this Message. And they further determined to come to no resolution on this Affair, untill the Survr genl had an opportunity of being heard: and therefore the Council was adjourned unto the afternoon; and the Survr genl had notice to attend them if he Pleased.9

    In the afternoon the Council met & received a letter from the Survr genl excusing his attendance.10 They then proceeded to take the matter into consideration & came to a resolution to the following purpose ——11

    “That the Governor had acted in this business12 with all necessary dispatch, & had called the Council together as soon as conveniently could be; & above an hour was spent in waiting for the Survr genl’s papers; __ that the Complt13 of the Survr genl that the Govr had done nothing at all & that the Proclamation & order to the justices signified no more than so much Tobacco-paper, was groundless, indecent, & affrontive to the Authority constituted by his Majesty within this Government14; __ that the Proposal of the Survr genl for raising the Militia, was improper & of dangerous tendency, & that the Govrs answer that the Militia was not to be charged with the execution of the Laws but was to be aiding to the civil Magistrate in such execution, & that sufficient provision had been made for that Purpose, was just, agreable to truth, & Pertinent;15 __ that the Survr genls expectation that the Govr should have applied for a writ of Assistance was improper, it being the practice for the Survr genl to apply for such writ, &, as the board was informed by the Chief justice, he having done it in many instances, & never having ^been^ refused in any one; __ & that it appeared to the Council that the Govr during his administration had given all support & encouragement to the Officers of the Custom in carrying the Acts of trade into execution, & that nothing had16 greater tendency to weaken his hands, than such undue return as had been made upon this occasion.”

    I will now give your Lordship a true account of the affair17 that occasioned this impeachment of my Conduct; as It has turned out upon the best enquiry into it: And I have the more reason to do so, as I am apprehensive that it may be misrepresented to the disadvantage of the Province.__ Mr Robinson, Collector of Newport, with Capt Antrobus seized a sloop at Swansey in this province, which had just before enterd inward at Newport & reported her Cargo, for having more Melasses on board than she had reported; & after he had seized her, left her in the Custody of an inferior Officer of the Customs & his own Servant;18 & returned to Newport. In the afternoon The Customhouse Officer & the Servant went on shore to a Tavern opposite to where the Sloop lay. As soon as it was dark, a parcell of people got on board the Sloop, carried off the Melasses, & carried the Sloop up the river, unrigged her, & run her on ground. When the Collector & ye Captn returned the next day with a proper force to carry away the Sloop, they found she had been carried off in the night, & as the Officer said, by a large Number of People disguised: but it has not ^ appeared that the people were armed or disguised, nor is it^ probable that it was so; as the absence of the Officer, & the darkness of the night made both force & disguise unnecessary. When the Collector & the Captain prepared to go up the river in pursuit of the Vessel & Cargo, they were told by one or two persons, probably with a design to stop the pursuit, that there was a great Number of Men in Arms ready to oppose them: but this was not true;19 However it justified the Collector & Captain in giving credit to it & reporting it as fact: the Collector & Captain applied to two justices to grant a warrant to search suspected places: the justices doubted of their power to grant a warrant to break open doors & nothing was done. Thus things stood when the Accounts were sent to Boston.

    When the Proclamation & the order to the justices came to Taunton (40 miles from Boston) which was early on Sunday morning, in about 36 hours from the time in which the Survr genl first communicated the affair to me, the justices met & continued together all that day.20 The Collector did not apply to them ’till about 6 in the Evening, when he desired a warrant to search sevral particular places. The justices said they would send the Deputy Sheriff then attending to require the suspected places to be opened, & if any one refused them entrance; they would grant a warrant. And accordingly one person21  refusing to open his warehouse, The justices sent for him & telling him he must open his door, he complied without waiting for a written warrant. There the Collector found about 10 hogsheads of Melasses which he seized, & afterwards, the Morning following, applying to the justices for Carriages to remove it, they impressed Carts & Lighters, & the goods were removed. The day after this, on Tuesday the Collector discovered two Lighters with Melasses in them sunk in the river: he applied to one of the justices (Col White the Speaker of the Assembly) for Assistance: the justice assured him that if He would place two Men to guard the Same, he would be answerable that they should not be disturbed in their Possession; & the goods were secured accordingly. The same day the Collector wanted to search another Storehouse, & came to the same justice for that Purpose; the justice immediately went with him, & the Storehouse was set open.

    I cannot learn that there is any real Cause to charge the Country with a forcible & riotous Opposition to the Laws; No person can be found that will say he saw any  any22 one Man in Arms upon the occasion, nor do I believe that at present any one imagines that there was any such armed force. The whole Story is this: A Customhouse Officer charged with the seizure deserted his post; & the Owners took that opportunity to recover the Seizure & carry it off. Two justices being applied to, to grant search warrants upon this occasion, doubted their Authority for that Purpose, as it really was doubtfull: but upon the arrival of the Governor’s orders five justices joined together, & acted separately in procuring the Customhouse Officers a free Liberty to search all suspected Places & sufficient Assistance to secure & carry off the Goods discovered; all this was accompanied with an entire ^obedience and^ submission of the whole People. Such was the effect of the measures taken by me & the Council, which have been treated with such censure & Contempt by the Survr genl. I have thought proper to give your Lordship an Account of this affair in the way of a letter, that the whole might appear in one View. But at the same time I send to the Secretary of the board of Trade a fuller Account in an Authentick Copy of the proceedings in Council, together with all papers introduced & read there.23

    I will make no other comment on the Survr genls treatment of me than that it was insidious & insulting: He would not let me nor the Council know what he desired or would have advised to have done; but lay by seemingly determined to condemn whatever I should do. If I had acted alone & in an hurry & had made any mistake, I might be assured that the utmost advantage would be taken against me; as I acted deliberately & with advice of Council, my Caution is turned against me as an unnecessary delay. When it appeared that the advice of Council was necessary for directions to the civil Officers (his own words in his letter to me) then — I ought to have raised & marked the Militia, an expedient which I have never had occasion to resort to since I have been a Governor, & hope I never shall. When I had sent orders to the Magistrates of the County to assist the Customhouse  Officers, then — I ought to have sent them a writ of Assistance, a thing not in my Power to grant or to procure. So that at all events this business was to be made an Handle  to cook up an accusation against me: but I hope this Gentleman will find himself disappointed.

    It gives me great Concern that I am obliged to trouble your Lordship with such trifling matters: but it is become necessary to the support & dignity & Authority of this Government, no longer to overlook insults upon my Office; however I pass by those that are merely personal:_ and indeed I find myself obliged to provide against misrepresentations of my Conduct; some of which, I understand, have been lately made, tho’ as yet I know not the Particulars; which I am perswaded would have been prevented, if I had been as early as I ought to have been in Complaints of my own.

    I am, with great respect, My Lord, Your Lordships most obedient and most humble Servant,

    Fra Bernard

    The Right Honble The Earl of Halifax.


    I send a duplicate of this to the Lords of Trade

    ALS, RC CO 5/755, ff 221-228.