Appendix 2

    The Answer of Francis Bernard to the Complaint against Him by the Massachusetts House of Representatives.

    [c. Feb. 1770]

    To the Kings Most Excellent Majesty in Council

    The Answer of Sir Francis Bernard Baronet Governor of his Majesty’s Province of Massachusets Bay to the Complaint preferred against him by the House of Representatives of the said Province now depending before his Majesty in Council

    This Respondent protesting against the uncertainty Generality Irrelevancy and Insufficiency of the said Complaint and against his being required to make any unnecessary Superfluous or impracticable proofs particularly proofs of the Negative of such assertions in the said complaint as are not supported by any Evidence and by their Generality and want of particular allegations are incapable of Negative proof; and also protesting against the unfair practices used by the Complainants or at least by the speaker and Clerk of the said House to deprive him of the Benefit of such Evidence, both written and Verbal as was to be had only at Boston by refusing to give him a Copy of the said Complaint from the Twenty Seventh day of June one thousand and seven hundred and sixty nine when the said Complaint passed the House unto the twenty seventh day of July being but three days before the day fixed for his departure for England altho he frequently applied to the Speaker of the House for such Copy, of the Truth of which he is ready to make oath; to the Complaint or to such part thereof as is material for him to answer to answereth as followeth

    And first the Respondent begs leave to observe of the Complaint that it had its Origination in a Resentment against the Respondent for his being charged with certain Orders of his Majesty relating to the House of Representatives and his declaring his intention to obey such Orders. This will appear from the Journals of the House of Representatives where it will be seen that on June ^the^ twenty first One thousand seven hundred and sixty Eight The Respondent sent a Message inclosing an Extract of a Letter from the Secretary of State to him the Respondent signifying his Majesty’s pleasure that he should require the House to Rescind a Resolution of a fformer House and declare their disapprobation of the same; on June the twenty third, the House desired the Respondent would give them a Copy of the other part of the Secretary of States Letter; On June ye 24th the Respondent sent a Copy of the other part of the Letter by which he was Ordered in case of Refusal to dissolve the Assembly and said that if they obliged him to it he must obey his orders; On June thirtieth the House passed a Vote that they would not rescind &c and passed an answer to the Respondent to that purpose; immediately after which they appointed a Committee to prepare a petition to the King to remove the Governor; the Petition being ready prepared was immediately reported and read and upon debate it being objected that there was no proof of the ffacts alledged, the petition was recommitted, and the Committee was ordered to bring evidence in support of divers articles. Thus it rested untill a new assembly met in May one thousand seven hundred and sixty nine when this Complaint was revived with some little alteration and some additional articles arising from new ffacts; and notwithstanding it had been before rejected for want of proof it was now admitted without any proof and passed the House the Twenty seventh day of June, one thousand seven hundred and sixty nine. It has been since circulated throughout America and Great Britain in newspapers magazines and pamphlets; It has been commented upon and argued from as true in different papers; and the Respondt. has been called upon by anonymous writers, to answer this Complaint before the publick, whilst he was endeavouring to obtain a hearing of it before the King in Council, and the agent for the Complainants was doing all he could to prevent it under pretence of waiting for proofs1

    1. 1. And the Respondent, further answering, saith, that the first article2 is notoriously untrue, it being well known to all who are acquainted with the Government of Massachusets Bay that from the time of the present Governors (the Respondents) entering upon that Government which was in August one thousand seven hundred and Sixty untill the opposition made to the Stamp act which began in the year one thousand seven hundred and sixty five a very good understanding and agreement of Sentiments and actions between the Governor and the assembly in both its Branches continually prevailed; of which the Journals of the House afford many pregnant proofs: but after the opposition to the Parliament was adopted by the House of Representatives it became impossible for the Respondent or any Governor to do his Duty and preserve his popularity3
    2. 2. The Respondent admits that he did declare that the General Assembly left Gentlemen out of the Council only for their ffidelity to the Crown; and if this is to be deemed Oppugnation against the Royal authority he admits this article to be true;4 And to Justify such Declaration he observes that upon the Election of Councellors in May one thousand seven hundred and sixty six (which was about a Month after they had received advice of the Repeal of the Stamp act) the Majority of the General Assembly turned out the Lieutenant Governor who was also Chief Justice of the province the Secretary two other Judges of the Superior Court and the Attorney General all of them Men of irreproachable Characters and high Estimation among the people. There was no accounting for the depriving the Government of the Service of Men of such high offices and known abilities and Integrity; but from an Intention to lower the King’s Authority in the Government and reduce the Royalty of it to mere fform and vest all the real power in the people. That this was and is still the intention has been since made plain by further proceedings in subsequent Elections in which every Councellor who has been known believed or even suspected to be disposed to support the authority of the King and Parliament of Great Britain or the Royal Rights of the provincial Government has been turned out of the Council. The Respondent begs leave to refer to a List of Councellors who have been thus turned out at the four last Elections which by an Enquiry into the Characters of the persons from those who are Acquainted with the province will fully prove the assertions above mentioned5
    3. 3. The Respondent admits that since the Exclusion of the Lieutenant Governor Secretary Judges and Attorney General from the council he has repeatedly used the right given to the Governor by the Charter of negativing persons Elected for Councellors and returned to him for his approbation;6 but he denies that he has acted therein indiscreetly or wantonly or upon any other motive than that of promoting the Kings service, He has from time to time signified to his Majesties Ministers the principles upon which he formed his Conduct in this Respect and has had the Honor to have such conduct approved of by his Majesty as it was signified to him by the Earl of Shelburne at that time one of his Majesties principal Secretaries of State by his Letter dated September Seventeenth one thousand seven hundred and sixty seven which was after the second time of his exercising his Negative; from which Letter he begs leave to insert the following words

      “I have the pleasure to signify to you his Majesties approbation of your Conduct and to Acquaint you that he is graciously pleased to approve of your having exerted the power lodged in you by the Constitution of the Province of Massachusets Bay of negativing Councellors in the late Elections which appears from your several Letters to have been done with due deliberation and Judgment.”7

    4. 4. The Respondent denies this article8 to be true so far as it relates to the inforcing the Reelection of his ffavourites; for he has no ffavorites in respect to the Government but such as have recommended themselves by ffidelity to the King and Ability to serve him. In this light the Lieutenant Governor and the Secretary may be considered as his ffavorites; and if such Declaration was made it was in ffavor of them and them only. And he believes that he did make such Declaration upon the following account: upon the Exclusion of these two Gentlemen from the Council (of which they had been members for many years and by their particular ffunctions as well as their knowledge of the public business were become almost necessary to that Body) upon Enquiry into the Constitution of the present Government it appeared from the usage under the former Charter, from Considerations previous to the Granting the present Charter, from the words of the Charter itself and from the practice of the first year after the opening the Charter, that the Lieutenant Governor and the Secretary had a right to Seats and voices in the Council in virtue of their offices and without being Elected thereto and did actually Enjoy such right for one year as aforesaid. But upon the Election of a new Council at the end of the first year the assembly Elected the Lieutenant Governor and the Secretary among the twenty Eight Elective Councellors instead of permitting them to be Superadded to the Elective Councellors as was designed by the Charter and practiced the year before. The Lieutenant Governor and Secretary acquiescing in this, probably from their unwillingness to dispute with the assembly upon whom they were dependant submitted to take their Seats as Elected Councellors instead of official members of the Council. And this method prevailing ever after the King has by these means been deprived of the service of his Lieutenant Governor and Secretary the nomination of whom he had reserved to himself in his Council where it appears to have been intended they should have Seats in virtue of their offices. And Great Detriment has arose to his Majesties Government by their being excluded the Council at particular times when they have been most wanted, as for late years has been very observable. The Respondent therefore having discovered this usurpation and finding it too much confirmed by time for him of himself to undertake to restore the Lieutenant Governor and Secretary to their rights did transmit an account of it to the Kings Ministers and did mention the same to the Council of the province or some of them at the same time declaring that as the Lieutenant Governor and the Secretary had an Inherent right from their offices to Seats in the Council though they had usually been reckoned among the twenty Eight elected he should not suffer their Seats among the Twenty eight to be filled up by other persons till they were restored to their Official Seats without the twenty-eight. This he did in order to leave it open to the Assembly to restore them to their Seats in the usual way at any time when they should see the impropriety of their being Excluded9
    5. 5. The Respondent says that he believes there never was a Governor that less interfered with Elections than he has done so that he knows not what to refer this Charge10 to unless it is to his recommending a provincial agent in the year one thousand seven hundred and sixty five.11 This he did and certainly had a right to do as the provincial Agent is the Agent of the whole General Court of which the Governor is a part and must be consented to and Commissioned by the Governor before his Appointment is complete. The Gentleman he recommended was accordingly Chosen and served the province for two years and was the most able and respectable agent that the province ever had
    6. 6. The Governor of Massachusets Bay has no power to displace civil officers without the Consent of the Council and hence it is that many persons hold their offices in that province who ought to have been displaced long ago.12 He has indeed a ffree power over military officers but has made very little use of it except in superceding some few Commissions of persons who professed and abetted such principles as made them very unfit to have military commands under the King.
    7. 7. The Respondent never had any doubt but that he had a right to Grant Charters of Incorporation under the Kings Seal of which he is the keeper as is practised by all Royal Governors in America.13 And he did once, some years ago, order a Charter to be made out for Establishing a Collegiate School in the extreme parts of the province upon the petition of divers respectable persons inhabitants of the said parts who were ready to endow the said School, But understanding that the proposed Charter gave umbrage to the College at Cambridge near Boston he upon that account only and not out of any doubt of his power to Grant such a Charter or the reasonableness and propriety of the Charter prayed for put a Stop to the same being Issued: and this is the only Charter that was ever agitated before him since he has been Governor of that province.14
    8. 8. The Respondent knows not what depositions are here referred to except it be those which it may be supposed he has Transmitted to his Majesties Ministers in obedience to his Majesties Commands signified to him for that purpose:15 And he is sorry to say that he has not done so much in that respect as may have been expected of him, for when he received such Commands he found the Intimidation which the ffaction by their fformer outrages had raised in Boston so great and universal that there was a General unwillingness in people of all kinds to give a fformal Testimony against any of the factious party even of the ffacts which they made no Scruple to Declare their knowledge of in the Course of Common Conversation. And therefore having no power to oblige people to give Testimony and finding it impracticable to procure voluntary evidence he could not execute the Kings Commands with that punctuallity with which he has always been desirous to distinguish himself in all acts of Duty.16

      And here it may be proper to observe that the preceding article and all the following articles are charges against him for doing acts which were dictated to him either by the Duty of his office, or by his Majesties Instructions given under his Sign Manual or by his Special Commands signified by his Secretary of State. And in all Cases where the Respondent is charged with acts which were known to be done in obedience to his Majesties Instructions or his special orders he cannot Consider himself to be Chargeable with such acts but such Charge must be understood to be and to be intended to be directed Immediately against his Majesties Administration. Under this Rule he will proceed to Consider the following articles

    9. 9. It is the Duty of a Governor to report to his Majesty all Transactions by which the Honour of his Crown the authority of his Government and the welfare of the province may be affected.17 The Respondent has not only had this Duty prescribed to him by his general Instructions but has been often reminded of it in the Letters of his Majesties Secretaries of State[.]18 In doing this he has shewn a disposition the very contrary to that of Misrepresenting his Majesties loving Subjects of the Colony in General, and has endeavoured to apologise for them where he could do it, by drawing a Line between the few who have been authors of the present Troubles; and their deluded followers, and distinguishing between the wickedness of the one and the Credulity and Intimidation of the other. He has always had a most earnest desire to remove Jealousies and restore that Harmony and mutual affection which ought to subsist between Great Britain and America. He used all the means in his power to prevent a Breach of a Good understanding between the two Countries and for that purpose when the Stamp Act was first agitated, notwithstanding he had reason to believe that the Bill was strongly adopted by the ministry, he wrote a Letter to the Secretary of State urging many reasons which occurred to him against its passing into a Law with a ffreedom which nothing but a Consciousness of his Integrity a Sense of his Duty to both Countries and a desire to prevent any uneasiness between them could have supported.19 Afterwards when the repealing the Act was in Contemplation He gave his Testimony for the repeal both in his public and in his private Letters. He has been always ready to Join with the Assembly in any measures for reconciling the two Countries which were Consistent with his Duty. But of late he has seen no Opening for it: for by the Convulsions which happened upon Account of the Stamp Act and their Consequences the management of the publick affairs of the province has got into the hands of a party whose principles and practices are the very reverse of those of Conciliation20
    10. 10. The Respondents Report of the proceedings of the Council from whence their Opposition to the authority of Parliament has been inferred was fully supported by authentic papers[.]21 And tho it has been since made a Subject of Argument yet not one material ffact alledged by him has been positively denied22
    11. 11. The Account of a Design to seise Castle William is expressly mentioned not to be related as a Certain ffact but only as reported and believed.23 Under such Circumstances it would have been an inexcusable neglect of Duty in the Respondent not to have informed the Secretary of State of a Credited Report of so interesting a Nature But as he had not positive proof of the ffact He did not accuse any person by name; the truth is he had intelligence which he could not make a public use of sufficient to induce him to believe that report then, and has since had occasion to Confirm himself in such Belief; but he has not been able to obtain positive proof of the Fact for the reasons given in his answer to the Eighth Article.24
    12. 12. This is one of those Articles25 before mentioned which passes by the Respondent and Attacks the Administration and the two Houses of Parliament Charging the first with ordering Troops to be Stationed at Boston and the two last with passing Resolutions without sufficient Grounds to justify such proceedings. Whereas it is Notorious that the sending Troops to Boston and the Resolutions of the Two Houses of Parliament were founded upon undoubted and indisputable ffacts supported by a Variety of Evidence drawn for the most part from authentic papers and in no way depending upon the Meer sayings and opinions of the Respondent26
    13. 13. The preamble of this Article27 whereby the Respondent is charged with being a principal Instrument in procuring the Military fforce which was sent to Boston has since been falsified by the party publishing the Respondents Letters; from some of which it appears that he absolutely refused to apply for Troops unless the Council would Join with him in it; which they refusing to do he never applied for Troops. As for the Charge itself the fact was this[.] Having received his Majesties Orders to take every necessary step for the accommodation of his Troops at Boston he applied to the Council, to the Selectmen of the Town, and to all the Justices in the Town whom he called together for that purpose, being all the persons that could be pointed out by Act of Parliament for quartering Soldiers severally and separately desiring them to provide quarters for the Soldiers. This they all refused to do; so that when the Commanding Officer found himself obliged to Land two Regiments at Boston there were no quarters for them whereupon the Commanding Officer applied to the Respondent to provide a Covering for one of the Regiments who had no Camp Equipage with them untill they could hire Buildings at the King’s expences to make Barracks of. The Respondent assigned to them several Rooms in the Town House which were not then in use among which was the Representatives Chamber; and there the Regiment remained without any Inconvenience to the public or any persons whatsoever untill Barracks were provided for them. What enhances the ffalsity and Virulence of this Charge is that the party who has preferred it knew that the Respondt acted in this business under the Kings Special Orders and that his Majesty has since been pleased to Signify his full approbation of his Conduct under the difficulties that were continually thrown in his way. And yet they have had the boldness in this indirect manner to arraign his Majesties Administration for Issuing orders with which the Respondent had nothing to do but to obey28
    14. 14. This Article29 is of the same Complexion with the preceding but much more false and prevaricating. The Fact upon which it is founded is this: The King ordered two Regiments to be sent from lreland to be Landed at Boston; and also ordered two other regiments to be sent from Halifax to Boston. The two Regiments from Halifax arrived first and the Commanding Officer signifying to the Respondent that he had orders to Station both those Regiments at Boston, demanded quarters. The Respondent consulted the Council and by their advice applied to the Select Men of the Town and then to the Justices of peace and last of all to the Council themselves[.] But they all refused to assign any quarters to the two Regiments under different pretences, the principal of which was that they ought to be quartered at the Castle upon an Island distant from the Town of Boston three miles by Sea and seven miles by Land, where there were Barracks that would hold only one Regiment and that but inconveniently as has been since proved. And tho the impossibility of quartering four Regiments in Barracks that would hold but one and the Impropriety of quartering Troops in an Island distant from Boston which were expressly ordered to be Stationed at Boston were urged again and again they still persisted in refusing quarters: wherefore the Commander in Chief found himself Obliged to hire Buildings and fit them up for Barracks at the King’s expence for three of the Regiments after having assigned the Barracks at the Castle for the other Regiment. And endeavours were used to defeat even this the only Method left for executing the Kings Commands; for it was given out by the ffaction that if any Soldiers were put into such Barracks the Officers Commanding such Soldiers would be prosecuted for quartering Soldiers without the Interposition of a Magistrate Contrary to the Mutiny Act and being Convicted thereof by two Justices would incur the penalty of being Cashiered. To prevent this abuse of the Act the Respondent at the request of General Gage Commander in Chief Granted a Commission to an Officer of his to place the Soldiers in the Barracks which should be provided for them at the Kings expence. And this is the ffact upon which the Charge against the Respondent, for evasively appointing an Officer to provide quarters for the Troops otherwise than is prescribed by the Act is founded. The Respondent is sorry that he is obliged by the designed Generality of the Charge in his defence thereto to state such a Detail of untruths prevarications and Contempt of Law & Authority in the promoters of the accusation against him: but it is all to be accounted for by the propagation of one maxim which originated with the ffaction, and has lately been adopted by the House of Representatives, that the King has no right to order any of his Troops into any of the American Provinces without being first authorized so to do by an Act of the Provincial Assembly. And from this pretension the Transition is easy to the presumption of Petitioning the King to punish an Officer of his for obeying his Commands and Assisting to carry his Orders into Execution.30
    15. 15. The ffacts upon which this Article31 is founded are these: In June one thousand seven hundred and sixty eight while the Assembly of the Province was sitting the Respondent received a Letter from the Secretary of State Signifying the Kings pleasure ^that^ he should require of the House of Representatives to rescind a Resolution passed in a fformer House and to declare their Disapprobation of it; and if they should refuse to comply that he should immediately dissolve them[.] He Communicated to the House the first part of the Letter containing the Requisition and upon their desiring a Copy of the whole Letter he Communicated to them the other part of the Letter containing the provisional Order to dissolve them. The House took nine days to consider of this Requisition and in that time passed all the necessary public Bills and particularly the Tax Bill which the Governor reminded them of passing previously to their giving their Answer informing them that if he should be obliged to dissolve them he should not be at liberty to call another Assembly till he received his Majesty’s Commands for that purpose. The House at length giving their Answer by which they refused to comply with his Majesty’s Requisition he Dissolved them as he was in Duty bound to do. And having received his Majesty’s commands not to call a New Assembly untill the May following being the time appointed by the Charter he obeyed that Order also. These are the True facts upon which this Article is founded; and they were all known to the Complainants at the time when they presumed to petition his Majesty to punish a Servant of his for what he did wholly in Obedience to his Majesty’s express Commands.32
    16. 16. It is the undoubted Duty of a Governor to accompany his Reports of Interesting Proceedings in his province with his own opinion of them and it is indispensible when he is giving an Account of Disorders in his Government to endeavour to trace the Causes of them and to point out the Remedies.33 In the Province of Massachusets Bay when civil Authority was reduced so low as to have nothing left but the Form of a Government and scarse even that, an Enquiry into the Causes of so great a weakness in the Governing Powers was unavoidable and there was no entring upon such an Enquiry without observing upon the Ill Effects of that part of the Constitution of that Government whereby the Appointment of the Council is left to the People to be made by Annual Election, and yet the Royal Governor in all Acts of Prerogative is subject to the Controll of the Democratical Council. This Solecism in policy has been as hurtful in practice as it is absurd in Theory and is the true Cause of the extreme Imbecility of the Power of the Crown in this Government at times when the Exertion of it is most wanted. This is not an Observation of a new Date, it is of many years Standing: And the Avowal of the Respts. opinion on this Occasion is not to be reckoned from the Date of his Letters to the Earl of Hillsborough; he has made no Scruple to declare ^his^ Sentiments upon this Subject ever since he has felt the Effects which the popular Constitution of the Council has had upon the Royalty of the Government, which is above three years ago; within which time he has seen the King deprived of the Service of every Man at the Council Board who has had resolution enough to disapprove the Opposition to the Authority of the King and the Parliament and their Supremacy over the American Colonies. This and this only is the foundation of the Charge of his endeavouring to overthrow the Charter; ^whereas his real desire has been that the Charter^ should have a more durable Stability by means of a Necessary Alteration without which he is perswaded it cannot have a much longer duration; as the Abuse of the Appointment of the Council now prevailing must oblige the Parliament to interfere sooner or later. And therefore he is persuaded that in avowing this Opinion he has acted not only as a faithfull Servant of the King and a True Subject of Great Britain but also as a real Friend of the Province of Massachusets Bay, whose true Interest it is to have its Government so confirmed and Established that it may not be liable to be continually disturbed and disgraced by factious and designing Men as it is at present.34
    17. 17. The Respondent denies that by the means mentioned in the aforesaid complaint35 or by any other means he has rendered his Administration odious to the whole Body of the People. He denies that the Opinion of the whole people of that province can now be taken and ascertained labouring as it does at present under the banefull Influence of a Desperate Faction who by raising groundless Fears and Jealousies by deluding one part of the People and Intimidating the other part has destroyed all real Freedom not only of Action but even of Sentiment and opinion. But the respondent doubts not but that his Administration has been approved of by the Generality of the best and most respectable Men in the Province; and Assures himself that, notwithstanding that in the Course of the late disputes he has been obliged by his Duty to give his Testimony against some popular Prejudices, when the present Infatuation shall Cease and Truth and Reason shall be allowed to interpose he shall be acknowledged to have been a faithfull Servant of the King and a real Friend of the People[.] In the meantime, having been honoured with his Majesty’s Approbation of his whole Conduct and that of the Two Houses of Parliament of some principal parts of it, He shall leave it to the Province of Massachuset’s Bay to do him Justice at their own Time and shall Commit himself to the disposal of his Majesty as it shall be thought best for his Service in perfect [confidence that]36 he shall not suffer for sacrificing his interest [to his fidelity.]

    And the Respondent for proof of such Allegations in this Answer as shall require it begs leave to refer to his Majestys Instructions and the Letters of his Secretaries of State and Commissioners for Trade and Plantations directed to him the Respondent, to the Acts of the Council of the Province, to the Journals of the House of Representatives; to his own Letters to his Majesty’s Secretaries of State and Commissioners for Trade and Plantations (which Letters being wrote without any probable view of their being used for this purpose, he humbly Submits ought to be admitted as Evidence especially of his Intention and Meaning upon which great part of the Complaint against him is made to depend) and to such other Evidence as he shall be able to procure here after having been by the practices of the Managers of the Accusation against him prevented having the Benefit of such Evidence as was to be had in the Province of Massachusets Bay.37

    And your Respondent humbly prays that when your Lordships shall have informed yourselves of the untruth and Injustice of the said Complaint you will be pleased to dismiss the same as false scandalous and malicious and to award to this respondent the Costs which he has expended in his defence thereto.

    Fra Bernard.

    MsS, RC      PC 1/3142.