USA > Massachusetts > Suffolk County > East Boston > History of East Boston; with biographical sketches of its early proprietors, and an appendix > Part 65
USA > Massachusetts > Suffolk County > East Boston > History of East Boston : with biographical sketches of its early proprietors, and an appendix. > Part 65
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21st. Engrossed, and had a third reading, and passed. Went in the after- noon to the Angel and Crown. Appointed of the committee to draw up a case.
1 Name illegible in the MS.
D.]
PROGRESS OF THE SUGAR BILL.
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23d. Met at the Temple, and considered heads of our case (coach-hire, 1s.). Mr. Foster, Mr. Sharpe, Mr. Frye, Mr. - , and Mr. Lascelles.
April 3d. The Bill was read a first time in the House of Lords, and ordered to be engrossed.
April 5th. The Lords received a petition against our Bill from New England and Rhode Island, and ordered it to be heard the 12th inst.
Put off April 12th to Thursday, 19th inst. An objection made to the Bill by the Lords on account of privilege, the Lords saying it is a private Bill, and therefore ought not to be sent to them as a money bill. Went to the Speaker to see how far the objection was reasonable. He thought the latter clause a slip, and ought to be overlooked by the Lords, but that the Commons could not originally have sent it up in any other shape than as a money bill; said that he would speak to Sir R. to get the Lords together, in order to accommodate the matter. Mr. W- of opinion that the Bill would pass; nay, he said, when I waited upon him, that it must pass. Mr. Matthew writes to me, Apr. 14th, to the same effect, though Mr. W. has been told he is charged with treachery. Petition from New York, Pennsylvania, and South Carolina, against our Bill.
The Lords put off the second reading of our Bill to Monday, Apr. 29th, when the Northern Colonies went through their evidence. Among the rest, Mr. Merse 1 said, that a gallon of French molasses distilled into rum, made a clear profit of 12d, and Capt. Bass said, the French threw away their molasses be- fore the English took it off their hands.
April 24th. Went through our own evidence, who were Mr. Matthew, Mr. Flemming, Mr. Martin, and Capt. Thomlinson, and committed the bill for Tuesday the 1st May.
April 28th. Lord Bathurst told Sir William Codrington that he feared but two Lords, one, my Lord Wilmington, who, in point of form, would be for leaving out the last clause of the Bill ; the other, my Lord Falmouth, who was against us throughout ; as to the latter, he would be put into the chair, and the former must be brought off. I waited upon Mr. Walpole to let him know this. He advised me to go to Lord Wilmington, and ask it of him as a favor to let our clause stand. Accordingly I did. I told his Lordship I came to beg a favor of him in behalf of the Sugar Colonies ; that if his Lordship had no objec- tion to the substance of the Bill, he would have the goodness to permit the last clause to go without any amendment. I permit it, said my Lord; I am but one. We are sensible, says I, that if your Lordship makes the motion, that it will be agreed to by the House, and we are apprehensive, in case it goes down again to the House of Commons, there will be some difficulty. Well, says he, though I think the last clause an absurdity, if no other Lord moves for altering it, I wont meddle with it.
May 1st. Our bill was put off to Thursday, May 3d.
May 3d. The Lords resolved themselves into a Committee upon our Bill ; Lord Falmouth in the chair; went through it, and reported it to the House without any opposition or amendment.
May 4th. The Bill had a third reading, and passed the House of Lords.
1 This name doubtful in the MS.
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APPENDIX. [D.
Some Thoughts on the Bill now depending for encouraging the Sugar Colonies, humbly offered to the consideration of the Honorable the Members of Parlia- ment.
That it is supposed, the Bill is intended to be effectual for the purposes therein mentioned.
That if sugar be excepted (as some seem inclined it should), it is conceived it will not be effectual for the purposes therein mentioned.
That if syrups, dabbs, or any other produce of the sugar-cane be not prohib- ited, it is conceived, it will not be effectual for the purposes therein mentioned, and that for the following reasons: -
1st. If sugar be not prohibited, the French will part with their worst sugar, rather than want things absolutely necessary to the making, curing, and ex- porting it, namely, lumber and horses ; and the advantage of that trade is so great to the Northern Colonies, that they can afford to distil such bad sugar into rum, and get more by it than by any other trade they now drive.
2dly. As the French have large tracts of new, rich land, they must neces- sarily have great quantities of very bad sugar, of little value in the European markets, which they will truck for lumber and horses, rather than want them; and that will come so cheap to the Northern traders, that considering it will make a great quantity of rum in proportion, it will serve their turn almost equally with molasses, at the price they now buy it.
3dly. That new, rich land will not make good sugar, until it has been ma- nured at least seven years ; and what it wants in goodness it makes up in quan- tity, and is generally called dabbs, very fit for the Northern trade, instead of molasses.
4thly. That the French, having all some new land, those who do make sugar will plant as much of this land as will supply them yearly with dabbs, to purchase horses and lumber.
5thly. That they will boil up the juice of all their bad, rotten, rat-eaten, sour canes, which they now throw away, and of which the English planters make rum, into syrups, which they can afford to sell as cheap as they now do molasses.
6thly. That if all the produce of the sugar-cane be not prohibited, they will, by the advice of the Northern traders, boil up the juice of all such bad canes, skum and all together, which will be neither sugar, syrups, or molasses, and which, as yet, has no name, and which they can sell even cheaper than they now do their molasses.
7thly. That molasses is, properly and only, what drains from the sugar, and consequently all or any of the forementioned species is not molasses, and may be imported into the Northern Colonies, notwithstanding this Bill, as it now stands.
8thly. That the truth of the facts before mentioned may be depended on, and is ready to be attested.
E.]
JOHN ADAMS'S OPINION.
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E .- Page 253.
COPY OF JOHN ADAMS'S OPINION
On the Will of Shute Shrimpton Yeamans.
Shute Shrimpton Yeamans of Richmond, in the County of Surry, Esq., by his Will, Aug. 4, 1768, devises all other his Lands, Heredits, and Real Estate, in Antigua, New England or elsewhere, unto Berners, Gunthorp, and Mercer and Greenough, their Heirs and Assigns forever, upon the Trusts, and to and for the Uses, Intents, and Purposes, therein after mentioned (that is to say), In Trust to receive the Rents, Issues, and Profits thereof, untill one of his Sons should attain the age of twenty-one years, or untill both of them should depart this Life without Issue, and to pay, apply, and dispose of such Rents, Issues, and Profits according to the Direction of his said Will and subject thereto. To the use of his son John and the Heirs of his Body lawfully issuing, and for default of such Issue, to the use of his son Shute and the heirs of his Body lawfully Issuing, and for default of such Issue then to the use and Behoof of his Aunts Chauncy, Greenough, and Hyslop, and the Heirs of their respective Bodies lawfully begotten or to be begotten, as Tenants in common and not as Join- tenants, and for default of such Issue to the use and Behoof of his own right Heirs forever.
The Question is, Upon the Death of both the sons without Issue, Whether the Aunts can obtain the Possession of this real Estate ? or in other words, whether this Use is executed in the Aunts by the Statute of 27 H. 8, c. 10.
My opinion upon the whole is, that this Use is not executed by the Statute, but that the Land must remain in the Trustees to enable them to perform the Trust, i. e. to receive the Rents, Issues, and Profits, and pay, apply, and dis- pose of them according to the Will.
It is true that the Statute mentions Trusts as well as Uses. The words are, " that when any Person or Persons stand or be seized, &c., of and in any Hon- ours, Manors, Lands, &c., to-the Use, Confidence, or Trust of any other Person or Persons, &c., that in every such Case all and every such Person or Persons that have, &c., any such Use, Confidence, or Trust, &c., shall stand and be seized, deemed and adjudged, in lawfull Seizin, Estate, and Possession, of and in the same Honours, &c., and that the Estate, Title, Right, and Possession, that was in such Person or Persons, that were seized, &c., of any Lands, &c., to the Use, Confidence, or Trust of any such Person or Persons, &c., be from henceforth clearly deemed and adjudged to be in him or them, that have, &c. such Use, Confidence, or Trust, &c.
It is also true that there has been some contrariety in the Judgments of Courts upon this Statute ..
2 W. & M. in Seaccario. In 2 Ventris. 341, the Case of Burchett and Dur-
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APPENDIX. [F.
dant, the Court resolved it to be only a Trust in Durdant, for the words were that Higden should permit him to take the Profits, which shews that the Estate was to remain in Higden.
1 Ann. B. R. But in 2 Salk. 679, Broughton vs. Langley, Holt, C. J., pro- nounced the Judgment of the Court, that what at common Law was a Trust of a Freehold or Inheritance, is executed by the Statute, which mentions the word Trust as well as Use, and that the Case in 2 Vent. Burchet and Durdant, is not Law.
Yet in 1 Salk. 228, South v. Alline. The Defendant had Judgment by the opinion of Rokesby and Eyre, against Holt, C. J., who said he was not satis- fyed, and seemed strongly to incline that the Executors were Trustees for the wife, because of the words to be paid by the Executors.
However Judge Blackstone in his Com. 2, p. 336, informs us, that by more modern Resolutions, where Lands are given to one and his Heirs in Trust to receive and pay over the Profits to another, this Use is not executed by the Stat- ute, for the Land must remain in the Trustee to enable him to perform the Trust. See also Vin. Abr. Tit. Uses page 277, 48.
JOHN ADAMS.
Braintree, Aug. 4, 1774.
To the Revd. Dr. Chauncy and Wm. Hyslop, Esqr.
F .- Page 403, 405.
GOVERNOR STRONG'S COURSE IN THE WAR OF 1812.
Further consideration has led the author to feel that the limits of this work will not allow a sufficiently extended explanation of the motives and conduct of Governor Strong. He is obliged, therefore, to omit the fulfilment of this purpose, in the hope that another opportunity will enable him to make use of the voluminous papers in his possession relative to the transactions of that period, and of his own recollections of the chief who honored him with his confidence.
The facts in the case, summarily stated, were these : That Governor Strong acted, in disobeying the first requisition for troops, as narrated on page 398, from an honest conviction of the unconstitutionality of the requisition; that when the exigency did exist, he did all in his power to comply ; and that he did at all times exhibit an active determination to defend the State under his government.
In disobeying the requisitions of 1812, Governor Strong clearly acted from a sincere view of his own obligations under both the State and general constitutions. Not only was he obliged to sustain the rights of Massachusetts by his oath to that effect, but the constitution of the United States itself recognized the
F.]
733
COURSE OF GOVERNOR STRONG.
rights of the individual States, stating, " that the powers not delegated to the United States by the constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
Among the powers thus delegated to the United States by the constitution were these, viz. : To provide for the common defence and general welfare of the United States; to regulate commerce with foreign nations and among the several States ; to declare war; to raise and support armies ; to provide and maintain a navy; to provide for calling forth the militia to execute the laws of the Union ; to suppress insurrection and repel invasion ; to coin money ; to lay and collect taxes, duties, imposts, and exeises ; to provide for organizing, arm- ing, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the States respec- tively the appointment of the officers, and the authority of training the militia according to the discipline prescribed by congress. It also provided that the navy should be under the command of the President, who should also be the commander-in-chief of the army of the United States, and of the militia of the several States when called into the actual service of the United States.
If in addition to the delegated powers, the States had ceded to the national government those of officering and training the militia, and had yielded the entire control of their physical force in all cases without exception, they would have enabled the President to assume unlimited control without any means of resistance, or at least, would have ceded the chief emblem of State sovereignty, and have rendered themselves wholly dependent upon the gov- ernment to which these powers had been granted. If the federal executive had not the control of the militia, how could he protect the States from invasion, as required of him by the constitution, especially when assailed by a foreign enemy ; and on the other hand, should the physical force of the States be unqualifiedly yielded to the national government, and thus placed beyond their control, they would have relinquished their State independence. To prevent an undue con- centration in the national executive, in peace as well as war, and at the same time to prepare for the emergencies of the latter, the control over the militia was ceded to the President in the three cases specified in the constitution, and in these only. With these exceptions, the militia was left under State regula- tion.
Upon the true construction of the constitution arose an honest difference of opinion between the President and Governor Strong, which was to decide when either of the three cases existed in which the President had a right to call upon the State for the militia and the Governor was obliged to comply ; the President contending that he was the judge of the exigeney, and the Governor, that he was not obliged to comply with the call for the militia of his State un- less in his opinion the exigency actually existed. There had then been no ju- dicial decision upon the subject, and from the ambiguous terms of the constitu- tion, there was room for a difference of opinion between the two high powers as to which should judge of the exigency. The President, from his correspond- ence and from the actual position of our relation to foreign powers, might seem to be the proper judge, whether in addition to the other military forces.
62
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APPENDIX. [F.
under his command it was necessary to employ the militia; while the Gov- ernor, from his residence in the State where the militia was to be employed when called for, was better enabled to judge whether the exigency upon which the call was made actually existed. But whichever may have been right, the State during the continuance of the war suffered no inconvenience from their difference of construction, but was in all cases amply defended. Taking into view also that the first requisition was a violation of that part of the constitu- tion which provides that the militia, when called into the service of the United States, shall be commanded by their own officers under the organization pre- scribed by congress and in proportion to the number of privates requested, the course of the Governor in resisting an illegal call is seen to be clearly within his oath of office as he understood it. The fact that his interpretation also was based upon an opinion of the Supreme Judicial Court of Massachu- setts, signed by the three eminent jurists, Theophilus Parsons, Samuel Sewall, and Isaac Parker1 (each of whom in turn held the high office of Chief Justice of that court), is sufficient to relieve him from the partisan charge of contumacy.
Governor Strong did, however, take all the measures he thought to be within his province. This is seen particularly in the employment of the executive agent to Maine. And as the instructions given to him explain more minutely the views of the Governor, they are here inserted.
As already stated (page 404), the accounts which Adjutant-General Brooks received from the District of Maine were so confused and contradictory, that he could not deduce from them the true state of affairs in any threatened posi- tion, nor advise the Governor what means were to be adopted, or what number of troops should be stationed in any such locality. He spoke of this difficulty to Lieut .- Col. Sumner, first aid-de-camp to his Excellency, who was in the habit of visiting the office of the Adjutant-General daily during the war, and said to him: "I have an errand for you to do if it will be pleasant to you ; that is, to go to Maine as the eyes and ears of the department, and to report to me the true condition of things in the exposed places." Col. Sumner answered that he would readily comply with the request, if his reports were not to be mixed up with those of other authorities and persons, whose numerous and con- tradictory statements had already caused so much embarrassment, but should be taken as representing the true state of affairs. The Adjutant-General re- plied, " The truth is what I wish you to go for, and without doubt, your reports will be the foundation of the acts which the government will hereafter take." This conversation took place in the beginning of September, say the 4th or 5th day, and at its conclusion the Adjutant-General said : "I will submit this proposition to the Governor, and you will probably hear from him soon." Col. Sumner visited the office for several subsequent days, but nothing being said relative to the proposed journey, he concluded that his services would not be needed. In this, however, he was mistaken, for on Friday morning he received a message from the Governor requesting his presence in the council-chamber. Here the Governor told him what the Adjutant-General had proposed, and said that he had laid the subject before the council (of which Gen. Brooks
1 Council Records, Vol. 26, pp. 99 and 106.
-
F.]
COURSE OF GOVERNOR STRONG.
735
was a member), that they had deliberated upon it for several days, and had that day come to a decision. He said that the council concurred with him in the opinion, that, although he as commander-in-chief had given instructions in his general orders to all the Major-Generals how to act in any contemplated exigency, yet as Maine was so far distant that frequent communications could not be received nor special orders given, it was desirable that he should have a general agent upon the ground, who could communicate to these officers his views in any emergency which might arise. The Governor also said, that, from Col. Sumner's relation to him, and from their frequent conversations, he was well acquainted with his views, as has been before stated, and that he fully . approved of the Adjutant-General's nomination. But he added that he was not in favor of sending an agent with such limited powers as the Adjutant- General had proposed, and that he should extend those which would be con- fided to any agent he should appoint ; that it was not unusual for the command- er-in-chief to have a supervising agent to report to him in cases where he lacked entire confidence in the commanding officers; and, on the authority of Judge Johnson of Connecticut, who was in the same congress with him- self, he stated that General Washington sent his aid-de-camp, Col. Hamilton, to the head-quarters of the northern army, then under the command of Gen- eral Gates, to report to him whatever might seem to him of importance. Gov. Strong expressed in this conversation his entire confidence in the several officers to whom his orders had been addressed, and named particularly Gen- eral Sewall, and General King (the latter of whom, although of opposite politics, he said had always executed his powers discreetly) ; but under the present threatening aspects, he thought they would all prefer to have an exec- utive agent with whom they could consult. He then told Col. Sumner, " Mr. Whitwell (then acting as temporary secretary) is writing out my instructions', which will be handed to you after your conference with the commissioners of sea- coast defence, who, being conversant of the measure I propose to take, are now waiting to see you. You will find me at my lodgings at Mrs. Hatch's." Upon the observation being made that the conference with the commissioners might extend far into the evening, the Governor replied that he should not go to bed until he had seen him, if it was ever so late. Accordingly Col. Sumner left the council-chamber and repaired to the Quartermaster-General's office, in which the commissioners held their sessions. After a long conversation with the com- missioners, he was requested to call in the afternoon and receive the instruc- tions of the Board, which Col. Pickering was then preparing. He did so, and the conference was so protracted that he did not reach Gov. Strong's quarters until about ten o'clock. After the customary salutations, the Governor com- menced by saying, " I suppose from the long interview which you have had, that you are fully possessed of the objects to which the commissioners of sea- coast defence have directed your attention ; but, in my opinion, it is not proper for you to go on such an undertaking under their authority without the especial instructions of the commander-in-chief. He then handed to him an unsealed letter, which he was told he might read on arriving at Portsmouth, which place would first demand his attention. He said he had just received an urgent com-
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APPENDIX. [F.
munication from Capt. Hull, who was then building at the navy-yard on the Maine side of that harbor, a seventy-four gun ship, stating the danger to which it was exposed, as the enemy, although it might not think it prudent to attempt to pass the forts on the Piscataqua, yet might land on York beach and march up unmolested and take an elevated position near him, whence they could fire rockets into the building yard and burn his ship on the stocks.
" With your Excellency's permission," said Col. Sumner, " I will not defer reading the letter until I reach Portsmouth, but will open it now, that I may have the benefit of your construction of any doubtful point that may suggest itself." Consent being given, he commenced reading it aloud.
" SIR,-As the commissioners for military defence have appointed you their agent to repair to the District of Maine, and to assist in providing every prac- ยท ticable means of defence for that part of the State, I will suggest to you such circumstances in relation to that subject as have occurred to me."
As soon as Col. Sumner had read this first sentence, he stopped and asked the Governor whether the letter contained any limitation to those powers. "Not that I know of," said he. "Then," said Col. Sumner, "I hope your Excellency will excuse me from undertaking the mission." The Governor answered, " I thought the Adjutant-General informed me that you were ready to go?" "Yes, your Excellency, but not with such powers as these ; but as eyes and ears, to see and hear and report the true state of affairs in that district." Governor Strong replied, "True, but I told you yesterday I should extend your authority to other objects, and my letter contains the powers I propose to confer upon you without limitation or restriction." "Does your Excellency mean that I am to issue any general order to call out troops ?" "No," he replied, " the commanding officers of divisions already have that power; but jou will confer with them respecting its exercise." Col. Sumner replied, "I hope your Excellency will excuse me for observing, that, although my first commission as your Excellency's aid was in 1806, yet I have had no experi- ence in the field, and therefore feel incompetent to execute your instructions. You will please remember, Governor, that you propose to send me into a dis- trict of the State which is wholly opposed to you in politics." "I was aware of that when I wrote you this letter," said he. "Then I most earnestly solicit you to excuse me from the duty." " Do you not hold a commission, sir ?" said the Governor. "Your Excellency knows," replied Col. Sumner, " that I hold a most honorable one." "I always thought when an officer received a request from his superior, he would consider it as an order." Col. Sumner replied, " I hope your Excellency will consider the delicate position in which I, without any adviser, am to be placed. Your Excellency is in an intelligent and friendly community. You have an executive council ; the heads of all the departments of the State government ; the commissioners for sea-coast defence ; the Quarter- master-General, and an Adjutant-General, in whose military experience the whole State has the highest confidence ; while I, a young man, unadvised and alone, am sent into a district which is hostile to you in politics, and which will rejoice to catch me tripping that you may fall." The Governor, acquiescing in the truth of this remark, replied, " There are times, Col. Sumner, when all
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