The duty I owe to the King, my sincere zeal for His Majesty's service, and my anxious desire to support with dignity and firmness the just measures of His Government, oblige me to lay before your Lordship, for His Majesty's consideration, the conduct of a majority of the Council of this Province at the late Session of the General Assembly, which has appeared to me highly unworthy and unbecoming, and in its tendency greatly injurious to the inseparable interests of Government and this Country.
It is necessary I should premise to your Ldp that I communicated twice in full Council at the former Session with an injunction of secrecy His Majesty's Instructions communicated to me by your Lordship's Letter No 6, as well with regard to the regulations concerning Attachments, as the limitation of the original jurisdiction of the Superior Courts, which last your Lordship will find expressed in these strong terms admitting of no ambiguity: “The King will not consent that the Jurisdiction of His Superior Courts should be limited in cases of any value whatsoever,” which I also declared in my speech at the opening of that Session, I then thought to the understanding of everybody, although in somewhat different phrase, and I am very confident no doubt at that time was entertained of my meaning. And it seems that the Council had a just sense of it by the positive refusal of that Board to agree to the limitation of the Superior Courts as will appear to your Lordship by its Message to the Assembly of the 14th day of March on reference to the Journals herewith transmitted.
On the day before the Superior Court Bill, enclosed to your Lordship in my dispatch No. 22, passed the Council, at the late Session,r DeRosset that there was an inclination in some of the Council to pass it. I answered him that I understood it contained the exceptionable clauses on which former Bills had been rejected, but that I should consider with all due attention any Act of the Council in a case of such importance. I sent for the Council Journals immediately afterwards, my Lord, and considering the state in which the Bill lay, that it was on the last reading, that Mr DeRosset had discovered at least a wavering in the Council with regard to it, and that it must decide upon the Bill's passing or not, probably the next morning on receipt of the Assembly's answer to a very peremptory message of that Board on the 14th day of March, proposing amendments, I thought it proper in order to confirm the Council in its duty, and to cut off every pretence of ignorance, to lay before them in writing His Majesty's Instructions with regard to the two points in the Bill on which only doubts could possibly be suggested, the Plan of Attachment being confessedly and universally well known. Accordingly, on the 17th I sent a message with the Extracts from my Instructions that stand upon the Journals of that day's proceedings to which I beg leave to refer your Lordship. This somewhat disconcerted the friends of the Bill who expressed wishes, I hear, that the Governor had not sent these Instructions, thinking, I suppose, they might with better grace plead ignorance of them than they could now that they stand there in their face. Notwithstanding this discomfiture, however, the Bill was passed the same day, directly contrary to the express declaration of the Council to the Assembly in its Message before alluded to, and your Lordship will find these Gentlemen after all, with one accord, dissemble ignorance of these very instructions, that lay upon their Table when they passed the Bill, a littleness which they cannot, I think, remember without a blush.
I confess to your Lordship I was exceedingly surprised at this conduct so inconsistent with the dignity of the Council, and my sense of its duty to Government, which I had carefully & designedly enlarged upon at the Board on the opening of the Session: and set before it, in the strongest manner I was able, the particular need there was of the Council's utmost support at a time when the representatives of the People were blindly opposing its just measures, and urging their Country's ruin.
On the 19th after receiving a message from the Assembly importing a desire to know when I should receive the House to present ther Sampson who had made a majority in the Upper House for passing the Bill, being then confined by illness. I cannot express to your Lordship my feelings on seeing division in the Council on a question of which the import was, whether I should, or should not fulfill my duty to His Majesty. As I know the Council discriminated between their duty in the Upper House of Assembly and at the Council Board, although in my opinion mistakenly, and that the Members thought it not inconsistent with their duty to act oppositely to the King's instructions in their Legislative character while they considered themselves bound by them as Counsellors of the Governor, I fully expected that having sacrificed in the first instance to popularity, The Council in the different character they now took would unanimously advise me to reject the Bill, they so well knew I could not in duty pass. To my great Concern and astonishment however, it happened otherwise and as I could not help thinking the Members who advised me to give my Assent to such a Bill were guilty of a flagrant breach of duty to His Majesty, it was not without much repugnance that I could forbear testifying my disapprobation of their conduct, by their immediate suspension, but reflecting on the circumstances of things, that my Instructions required a majority of the Council to concur in such an Act, whereas it was then equally divided on the subject, that would be my Ground for the Proceeding; that it might be charged to rashness and precipitation as the Assembly had most unjustly done my conduct in the Conclusion of the former Session, and besides that if the Council's behaviour should, as in my estimation deserve such high mark of His Majesty's displeasure, it would come from the royal Authority with infinitely greater force, and effect, than from me, I restrained my indignation.
Such, my Lord, were the motives of my forbearance, and I contented myself with requiring separately in writing the reasons of the Members who advised me to pass the Bill. These I did notth day of last month, when I informed the Gentlemen that I should transmit them to your Lordship to be laid before His Majesty, as what was to justify their conduct, or to condemn mine. Accordingly, my Lord, I have now the honor to offer them to your Lordship's consideration, remarking upon them only, that they are all alike, that the Gentlemen concur most exactly in their opinions, and that I believe Mr DeRosset, who is greatly the superior among them in point of understanding, has the merit of the composition and that I see with infinite concern, Members of His Majesty's Council resorting to the shallowest wickedness and most groundless pretences to extenuate a conduct that they know is not defensible; that they pursued in spite of the fullest evidence of its impropriety, and of which they ought to be ashamed. Their own proceedings, my Lord, as an Upper House of Assembly that will appear on their Journals now transmitted, and the circumstances I have set forth with the strictest exactness are sufficient I apprehend for their confutation, I will therefore only further observe, that their reasons for passing the Bill under contemplation, and for advising me to pass it, grounded on the Assembly's refusal to adopt any other Plan will apply as well to excuse them for yielding to any other wrong measures that Branch of the Legislature shall obstinately and unreasonably adhere to, and that the assertion of the Chief Justice's Fee Bill causing clamour in this Country, and being one ground of the late insurrection is quite new to me; having always heard that the People's discontent arose from the Clerks extortions in their own behalf.
I have seen, my Lord, during the two preceeding Sessions a disposition in these Members of the Council to cultivate the favour of the Assembly particularly instanced by their countenance given to the Bills for establishing Inferior, without Superior Courts, very much to the disparagement of the operations of Government and their own weight and dignity. I am very sorry to say to their dishonour, that it is known in the Assembly how the Council as an Upper House of Assembly, will divide upon any question before it is agitated. That these Members seem to have only studied to throw the odium of resisting the Assembly's wishes off their own shoulders upon the King's Governor, instead of firmly supporting the just measures he is authorized to propose, becoming thus an embarrassment rather than a bulwark & defence to Government, and I have heard with indignation that through some of them, the most secret
In short, my Lord, my duty obliges me to declare that it is impossible to carry on the business of Government, with dignity and propriety, with a Council of such principles, and I do therefore hope His Majesty will be pleased to suspend the Members who have so flagrantly violated their duty to His Majesty and the Publick, and where seats may be supplied I am sure with infinite honor and advantage to His Majesty's service as I think will appear from a sketch of their characters, and of those of the Gentlemen I propose to fill their vacancies, which I believe it proper to give, however hateful and invidious the task. To begin with
Mr Rutherford. He is, my Lord, a Bankrupt in point of fortune although unhappily the Receiver General of His Majesty's revenues, of excellent temper but strangely confused understanding, and actually disqualified by invincible deafness for public business.
Mr DeRosset is a man of good natural understanding and moral character, of moderate fortune and slender education, and extremely attentive to the favour and applause of the Assembly in all political controversies.
Mr Sampson, a gentleman of the Kingdom of Ireland, who has thought fit to assign reasons for advice that he intended to give me, if his indisposition had not prevented his attendance in Council is a man of middling fortune and of good moral character, but of very shallow understanding and an implicit follower of the opinions of Mr DeRosset on all occasions.
Mr Dry, Collector of His Majesty's Customs at Port Brunswick, a good-natured man, of no pretensions to knowledge or understanding in anything, an advocate for all popular measures, and a republican if he has any fixed political principles at all.
Mr Cornell, a man of no education, who has acquired in Trade a very considerable fortune from the lowest beginning, an adept in mercantile business, and of no knowledge or talent out of that line. He was brought into Council by Governor Tryon, who believed him well principled towards Government and who had found him useful by his money in some public exigencies, but detested in this place where he has made his fortune for his vanity and his griping and oppressive disposition.
I have already had the honor to recommend to your Lordship Mr Willie Jones, and Mr McGwire, His Majesty's Attorney General, tol Dukenfield and Mr Marmaduke Jones, and I humbly propose the following gentlemen to fill the vacancies of the Members of the Council above mentioned.
Mr Hugh Finlay at this time a member of the Council of Canada, a gentleman of education and good fortune, of an excellent character and great understanding. He is Surveyor of His Majesty's Post roads in America, and now fixing his residence in this Province.
Mr Robert Munford, a gentleman of liberal education, of exceeding good understanding, very considerable fortune, and of a very amiable character, lately removed into this Province from Virginia.
Mr Thomas Markwright, a gentleman of good education, who has made a large fortune in Trade, of liberal disposition, excellent understanding, and a very respectable character.
Mr Robert Schard, a gentleman of exceeding good sense and amiable character, has lately retired from Trade with a good fortune, and is making great progress in the culture of rice.
Mr Lancelot Graves Berry, Collector of His Majesty's Customs at this Port, a young gentleman of good education, and parts, of genteel fortune and fair character.
With a Council thus formed, my Lord, I will venture to say I could transact the public business with satisfaction, dignity and propriety, and I do not know my Lord upon my honor that taking all circumstances together, I could change one for the better in this Country.
In the representation I have made of the conduct and characters of the present Council who have behaved so unworthily, I do aver to your Lordship, I am influenced entirely by a sense of duty, and regard to truth, free from prejudice and personal dislike, for which indeed I have not the shadow of reason, since they have always treated me with all sort of regard; and if I may believe their professions, entertain the greatest respect for me.
Mr Alexander McCulloch, who is as little qualified as either of those Gentlemen for a seat in the Council, fell off upon this late occasion from the popular side, to which he was wont to have heretofore upon all occasions, on what Principles I know not, but he has rendered himself exceedingly hateful by that apostacy to his old Associates.
I should be much wanting in justice my Lord, if I could conclude this letter or omit any other proper occasion to bear my testimonyr President Hasell, Mr Strudwick and Mr Chief Justice Howard, from whom I have met with every aid and support that they could give me, or I could expect, in the discharge of my duty to His Majesty; and I have to hope that His Majesty's disapprobation of the behaviour of the Gentlemen who have abandoned the interests of Government and their Country, and sacrificed their duty, will give strength and countenance to these friends of Government and to my feeble, but best endeavours, to promote His Majesty's service.
However out of place it may be, my Lord, I cannot help observing to your Lordship, that it is singular the Gentlemen of the Council just mentioned, who had the same participation in my Counsels, should pretend ignorance of those Instructions, of whose meaning the Members last named never entertained the least doubt.