828 | To Thomas Hutchinson

    No 17


    Pall Mall. Feb 13. 1770

    Dear Sir

    Since I have wrote to you my last, I have received from Mr Taylor a particular Account of the Attack of the Naval Office.1 I observe thereupon that the Method they have taken to abolish it (for that is the Word) will lye in your Power to defeat: And I doubt not but you will see the Reasonableness of it as well as the Practicability. They propose to indict Mr Taylor upon the Act of Assembly in 1701 & by frequent Prosecutions to wear him out. But as it seems to me undoubted that that Provincial Act does not extend to the present naval Office, you will, I persuade myself, defeat the Intention of harassing an Officer by repeated Prosecutions by ordering noli prosequi.

    To shew that the Act does not extend to the present naval Office It must be observed that the Naval Office was established in the 15th of Charles 2,2 & vested in the Governors. The General Court of Massts Bay, being then, properly speaking, the Governor, I suppose they took Care of that Business.3 However in 1692 the Assembly past “an Act for erecting a Naval Office”. This Act was repealed by the King in Council in 1695;4 and I inclose with this the Reasons given by the Lords of the Council for this repeal in their Letter to the Governor of Massts Bay.5 But notwithstanding this the Assembly (a Lieut Govr being in the Chair) passed another Act in 1701 intitled “an Act for establishing of a Naval-Office & for ascertaining the Fees”.6 As I have not been able to get a Sight of the first mentioned Act, I cant compare it with the present: but it is most probable that the latter was only a transcript of the former.7 This appears to be so from observing that the Objections made against the former are perfectly applicable to the latter.

    It is generally understood that this last Act was never carried into Execution, neither in the Appointment of the Officers therein ordered, nor in ascertaining the Fees thereby appointed. It cannot be supposed to relate to the Office appointed by Act of Parliament, the Business of which at that Time was particularly described & regulated by the 7 & 8 of Wm 3rd:8 for in such Case the Provincial Act would be void as being contrary to an Act of Parliament, which appoints an Office of the same Denomination & for different & more extensive Purposes than the Provincial Act. The Provincial Act considers the Offices to be appointed under this Act as new Offices, without any Reference to the Parliamentary Office. In the Provincial Act the Officers are to be many, one for every Port; by the Act of Parliament the Officer is to be but one, that is the Governor or his Clerk, for the whole Province. By the Provincial Act the Business of the naval Officers is declared to be onely [only] for the entring & clearing of all Ships; by the Act of Parliament the Cheif Business of the naval Officer is to look to the Execution of the Act of Navigation, whereas the entring & clearing was more properly the Business of the Custom house Officer.

    As the Officers appointed by the Provincial Act were distinct from the Officer appointed by Act of Parliament, so the Fees appointed by this Act are assigned to the Officers appointed under the Act only by the Words said Office repeated twice in this short Act, which must refer to the Naval Office in the Title which was to be established by that Act. And as there never were such Officers established under that Act, It is not to be wondered that the Bill of fees prescribed by the Act was never in Use. As for the Words in the Act as has been accustomed they must refer to what was done before the new Charter, when it might probably be accustomed for the General Court to appoint Naval Officers. But no such Custom, if it was to be set up against the Parliamentary Naval Office, could be prescribed under the new Charter, as the only Attempt of it was set aside by the King in Council.

    Hence it was that when Mr Pemberton came into the Office in 1733 he found not the least Traces of the Act in 1701. the Parliamentary Office had been filled up by the Governor generally out of his Family; and the Naval Officer was so far from submitting to the Bill of Fees in the Act of 1701 that [He]9 took more fees than are taken now. Mr Pemberton settled a Bill of fees with the Merchants, in which no Regard was had to the Act of 1701, but the Act in 1716 for the Fees of the Custom-house was made a rule for the Naval-Office,10 altho it was not included in it, & the principal Fees of the Naval Office were settled by that Act, with the Approbation of the Cheif Merchants. This Table of Fees has continued ever since, that is for 37 Years: & in the Year 1764 the King having ordered a Return of the fees of all Offices, I returned this Table for the Naval Office11 & ordered it to be hung up in the Office, to the satisfaction of the Merchants, as I was told by several of the principal of them. And now it is not the Bill of Fees, but the Office itself which is attacked.

    Under these Circumstances I cannot think that you will suffer this Office to be run down by frequent Prosecutions, but that you will interpose in its Behalf that Power with which you are vested to stop litigious Prosecutions. I also hope that if any Bill should be sent up establishing a worse Bill of fees than that which has been returned to his Majesty, you will suspend the passing of it till the Opinion of the Minister shall be taken upon it. If the Party should attack the Office in a different way from that now proposed, you will give it such Assistance as you can. Mr Auchmuty & Mr Sewall are engaged in its Support: Mr Taylor will attend you with proper Informations.

    I am with great Truth & Regard Sr Your &c.

    Lieut Govr Hutchinson

    L, LbC      BP, 8: 58–61.