353 | To the Earl of Halifax

    Boston May 11. 1765

    My Lord

    I find myself again obliged to trouble your Lordship upon a disregard shown to me by a Custom house officer, which tends to make my Services in looking to the laws of trade ineffectual, & my obedience to his Majesty’s instructions for that service impracticable.

    By my letter of May 11 I informed your Lordship of a seizure made by the Collector of Newport within this Government of some Melasses & the rescue of them by the negligence of the Officer who had the Custody of them; also of the measures taken by me & the Council for the supporting the Officers in the recovery of these goods, & the actual recovery of some part of them, or the discovery of other melasses illegally landed (it does not appear which) by the assistance given the Customhouse officers by the justices & Dep. Sheriff acting under my orders. I also informed your Lordship of the ill treatment I received upon this Occasion from Mr Temple the Survr genl, & now must own that I expected to have such further trouble upon this subject as he could give me: & I am not disappointed.

    I have before informed your Lordship2 that it has been ever usual, untill the time of the present Survr genl’s taking his office for the Officers of the Customs, when they made a seizure, immediately to wait on the Governo[r]3 inform him of it, & consult him about the prosecution. This was done, not so much for the intrest which the Governor had in the seizure, as upon account of his instructions ordering him to look to the prosecution of forfeitures. This practice the Survr genl has strongly opposed upon this principle, that trade is his department, and that the Governor has nothing to do with it. I have allready wrote to your Lordship so fully upon this Subject that I need say no more of now.

    I waited to see what part Mr Robinso[n] the Collector of Newport would act in regar[d] to the Melasses which he had seized in this Government: I knew him to be under the power of the Surveyor genl by means of particular incidents; & expected that he would act Accordingly: and I have not been deceived. He came to Boston about 9 days after he had made the seizures,4 & 2 days after visited me accompanied with sevral other Gentlemen; but mentioned not a word of the prosecution of the seizures. Two days after I sent for him: he came accompanied with Mr Hale Collector of Boston. I told him that it was the Duty & the Usage of the Custom house officers within this Province, whenever they made a seizure to acquaint the Governor with it & consult him concerning the prosecution; that he had now been 5 days in Boston & had not advised with me concerning the prosecution of the Melasses he had seized within this Government: I therefore asked him what he intended to do in it. He said he had carried the Melasses out of the Province & therefore he doubted whether he could now prosecute it here. I told him that that made no difference: as the goods were forfeited & seized within this Province they should be prosecuted here; and I advised him to go [to] the Advocate genl. & consult him about it. Mr. Hale interposed & said that there was doubt but that the goods should be prosecuted here.

    I saw no more of him till 10 days after;5 when he came with Mr Hale. I renewed the discourse upon the seizure & observed to him, that He had now been a fourtnight in town & had not prosecuted the goods; that during this time Mr Hale with the two other officers of this port had seized a parcell of sugars; that they immediately acquainted me with it, & the prosecution was commenced without delay. I was going on to show by what authority I claimed to be consulted in all such prosecutions, when He interrupted me & said that they had determined to prosecute the Melasses at the Court of Halifax, meaning by they The Survr genl, Capt Antrobus & himself. I told him that I had no body to do with in this business but himself, who being the principal officer of the port had made the seizure himself & therefore I must apply for the execution of his Majesty’s instructions to him alone. I then produced his Majesty’s instructions to me in regard to the laws of trade & read & showed unto him the 15th instruction by which I am commanded to be aiding & assisting to the Collectors &c in seizing such goods &c as should be clandestinely landed without paying the duty, & that I should cause due prosecution of such goods as should be seized for non payment of the duty. I said that I had allready been aiding & assisting to him in seizing such goods; & that I was desirous to cause due prosecution of the goods: but that as He had removed the goods out of the power of the provincial Court of Admiralty & was determined to prosecute the same at Halifax, I could not cause due prosecution thereof, nor see that the same was duly prosecuted: and therefore by this proceeding of his the purpose of the instruction was entirely frustrated. He answered that the late Act had left it in the option of the informer to sue in the provincial Court or in the general Court of Admiralty as he pleased; that he had been persuaded to prosecute at Halifax & was now engaged to do it. I replied that the Act which gave the prosecutor this option certainly intended that it should be used with discretion & not wantonly abused. That the obvious Reason for removing a cause from the provincial Court to the general Court was a suspicion of the provincial judge being subject to popular influence. That if he knew not the Character of Mr Russell the provincial Judge of the Admiralty I would tell him that his Integrity as a Judge & his fidelity as a Servant of the King were exemplary & indubitable; that he had lately given great proofs ^of the latter^ much to the dissatisfaction of the people; & had never, that I had heard of, given Sentence against the King to the dissatisfaction of a prosecutor. That he being such a judge, to carry a cause arising in the midst of his jurisdiction to a distant court would imply an imputation upon him, which would require a Vindication of his character from those who were convinced of ^his^ merit, of which I profest myself ^to be one^. I therefore desired him to consider further of this,6 before he did an act which would cast a reflection on a Gentleman who deserved as much in his station from the Servants of the Crown, as any man I knew. Mr Robinson said that he had no objection to or Suspicion of Judge Russell, and that he intended no reflexion upon him in carrying the cause to Halifax: but he gave no other reason for so doing than that Captn Antrobus who was to share in the forfeiture had desired it & Survr genl had advised it. I told him that he ought to have good reasons for this proceeding, as it was determined Without consulting with me with whom he ought to have advised in the first instance. In the course of this conversation I gave him the written letter a copy of which I enclose: he desired time to answer it that he might consult the Survr genl; & the next day returned me his answer which I also enclose.

    I can say of Mr Robinson, as I have upon a similar occasion said of another Gentlemen, that I do not think he was disposed to treat me with disregard, if he had been left to himself. I have heard that whilst the Matter was in Suspence, he had said, that he was Very much pressed to prosecute the goods at Halifax; but that he would not do it, for it would be a Very unpopular act. And He made no Secret to me that he acted under the Direction of the Survr genl, when he acquainted me that they were determined to prosecute at Halifax. Not one good Reason has been offered for this Measure: many occur against it; among which this would have weight with prudent men, that at a time when all the Colonies in America have exprest their uneasiness at being liable to have their causes carried to Halifax, it must be highly improper to use that power wantonly, without any real Necessity & contrary to the advice & protestation of the Governor of the Province.

    But no opportunity is to be lost to impeach the Governor’s Authority in matters of trade and to induce the officers of the customs to disregard it. It is part of an avowed system to build up the power of the Survr genl upon the ruins of that of the Governors. I have before, as I apprehend, fully evidenced this; &c I expect to have occasion frequently to induce fresh proofs of it: untill Mr Temple shall be taught more just ideas of his own importance & the Authority of his Majesty’s Governors.

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

    Fra Bernard

    The Right Honble The Earl of Halifax

    ALS, RC CO 5/755, ff 229-236.