In COUNCIL, October 4, 1770. The General Court ſitting.

ONE of the Members of the Board having acquainted the Board that he had ſeen a Depoſition ſigned Andrew Oliver, which was publiſhed in the Appendix to a Pamphlet lately printed in London; in which Depoſition divers Gentlemen of the Council, which conſiſted of 8 Members then preſent, therein ſaid to be convened on the 5th Day of March laſt, are repreſented as having made ſuch a Declaration to His Honor the Lieutenant-Governor, reſpecting a plan formed by the People to remove the King's Troops and the Commiſſioners of the Cuſtoms from the Town of Boſton, as was likely to be attended with the moſt pernicious Conſequences to this Province—He thereupon moved that the Board would make Enquiry of the Gentlemen of which ſaid Council conſiſted, what Foundation there was for ſuch a repreſentation— Which motion being ſeconded, the Board deſired ſaid Gentlemen, namely, Mr. Danforth, Mr. Erving, Mr. Hubbard, Mr. Gray, Mr. Ruſſell, Mr. Tyler, Mr. Pitts, and Mr. Dexter, to prepare a true State of the Matter and lay the ſame before the Board as ſoon as may be.

JOHN COTTON, D. Secr'y.

THE Committee appointed by the Honorable Board on the 4th of October Inſtant, to enquire what Foundation there was for the Repreſentation made in the Depoſition ſigned Andrew Oliver, publiſhed in the Appendix to a Pamphlet printed in London, and to prepare a true State of that Matter and lay the ſame before the Board, having (as far as they are able) recollected the Proceedings had in Council the 6th and 7th of March laſt, and the Declarations of Royal Tyler, Eſq and other members of Council (ſo far as thoſe Proceedings and Declarations are referred to in Mr. Oliver's Depoſition)—what your Committee can ſeverally recollect being comprized in their reſpective DepoſitionsFor theſe Depoſitions ſee the Appendix, No. 7, 8, 9, 10, and 11. accompanying this their Report, they take leave to lay the ſame before the Honorable Board for their Conſideration.

SAM. DANFORTH, per Order.

In COUNCIL, October 16, 1770.

READ and accepted, and Ordered, that William Brattle, James Bowdoin, James Otis, John Bradbury, and Stephen Hall, Eſquires, be a Committee to take into Conſideration the Subject Matter of this Report, together with the Papers relative thereto, and alſo two Petitions from Mr. Secretary Oliver on the ſame Subject, and report what they think proper ſhould be done thereon.

JOHN COTTON, D. Secr'y.

The Committee appointed by the Honorable Board the 16th Inſtant, beg Leave to make the following Report. W. BRATTLE, per Order.

THE Committee having maturely conſidered the two petitions to the Honorable Board from the Secretary, Andrew Oliver, Eſq together with his Affidavit concerning the Proceedings at Council on the 6th and 7th of March laſt, annexed to a pamphlet publiſhed in London, and the ſeveral depoſitions on the ſubject matter of the ſaid Affidavit, take occaſion to make a few obſervations from and upon them.

With regard to the ſaid Affidavit ſeveral things are obſervable from it.

1ſt. That what is there declared to have been ſaid by Mr. Tyler in Council, is expreſſed in ſuch a manner as to be generally underſtood to repreſent, that antecedent to the unhappy affair of the 5th of March laſt▪ there had been a plan formed by people of the beſt character among us to remove the troops out of the town of Boſton, and after that, the Commiſſioners.

2dly, That divers Gentlemen of the Council adopted what had been ſo ſaid.

3dly, That the Secretary had in his draft expreſſed what had been ſaid in debate at Council in the terms in the ſaid Affidavit recited; and that this form or draft of his "was allowed (by the Council) ſtrictly to expreſs the truth, but that it would not ſtand well on the Council Records": whereupon "one of the Gentlemen of the Board prepared an amendment" which "was ſubſtituted."

As to the 1ſt article, the plan therein mentioned was, according to the ſaid Affidavit, intended to effect the removal of the troops, and the removal of the Commiſſioners.

With regard to the removal of the troops, Mr. Tyler, who mentioned the ſaid plan in Council on the 6th of March laſt, declares in his depoſition,No. 11 in the Appendix. "that he uttered nothing in ſaid Council purporting that any plan had been formed to remove the troops previous to their firing on the inhabitants; that he had no idea of a plan formed for the removal of ſaid troops until the day after the ſhocking ſcene on the evening of the 5th of March laſt; and that he then meant to be underſtood that the diſpoſition of the people to remove the ••• ops was occaſioned by the killing and wounding of divers inhabitants of the town, and by the people's apprehenſions that the troops ſtill had an unfriendly deſign againſt them."

Mr. Erving, Mr. Pitts and Mr. Dexter in their depoſitionsNo. 10 Appendix. declare, "that they cannot recollect, neither do they believe, that any thing was ſaid in Council by Mr. Tyler, purporting, that any plan had been formed to remove the troops, previous to their firing on the inhabitants, but that they underſtood Mr. Tyler to mean that the people were excited to ſuch a meaſure by the killing and wounding of ſome of the inhabitants of the town on the evening immediately preceding."

Mr. Danforth and the other members of the Board, then preſent in Council, have made in ſubſtance the ſame declaration in their reſpective depoſitions. Mr. Cotton, the Secretary's deputy, and his aſſiſtant Francis Skinner, by their depoſitions,No. 5 and 6. taken at the deſire of the Secretary, on being aſked, declared, that when Mr. Tyler mentioned the plan aforeſaid they did not apprehend him to mean a plan concerted previous to the ſixth of March laſt; and the Secretary himſelf has lately declared before the Board, that he did not conceive Mr. Tyler to mean ſuch a preconcerted plan; and that he never believed any ſuch plan had been formed. All which declarations amount to a ſatisfactory proof, that what Mr. Tyler ſaid in Council did not convey the idea that a plan had been formed to remove the troops previous to their killing a number of the inhabitants.

With regard to a plan for the removal of the Commiſſioners, Mr. Cotton No. 5 and 6. declares "he heard Mr. Tyler ſay, that there was a plan formed to remove the troops from the town, and that they would not ſtop there but would remove the Commiſſioners alſo." Francis Skinner No. 5 and 6. declares in ſubſtance the ſame: as does alſo Capt. Caldwell: No. 3. the two firſt however ſay, that they did not apprehend Mr. Tyler meant a plan concerted previous to the • th of March laſt. With regard to this circumſtance Capt. Caldwell is not explicit, and it does not appear that any queſtion was aſked him concerning it.

Lieutenant Colonel Dalrymple in the body of his depoſition No. 4. ſays nothing concerning the Commiſſioners: but after he had ſigned and delivered it, being aſked whether he remembered that Mr. Tyler ſaid, that part of the plan was to remove the Commiſſioners out of town? He anſwered, "that ſomething of that kind was mentioned by ſome gentleman of the Council during the debates, but he cannot ſay whether it was Mr. Tyler."

This is the whole of what is declared on the poſitive ſide relative to the Commiſſioners.—Two of the declarants, viz. Meſſrs Cotton and Skinner ſay they were called out divers times while the Council was ſitting and in the courſe of the proceedings and Mr. Cotton infers from it, "that he cannot declare ſo fully as thoſe who attended without interruption."—Capt. Caldwell did not go to the Council till 4 o'clock in the afternoon of the 6th of March, and therefore cannot judge of what paſſed at Council ſo well as thoſe who attended both parts of the day: and Colonel Dalrymple, who did attend both parts of the day, did not recollect when he delivered his depoſition, that any thing had been ſaid concerning the Commiſſioners; and his anſwer, when aſked as above, ſhews he had only a general remembrance of ſomething ſaid about the Commiſſioners; but what it was, does not clearly appear by his anſwer. It is very likely that what paſſed between the Lieutenant Governor and ſeveral of the Council relative to the protection of the Commiſſioners, as below mentioned, was the thing that lay in his mind.

It is not doubted that theſe Declarants underſtood Mr. Tyler in the ſenſe they have declared, but it is probable they might miſapprehend him. It appears by Mr. Gray'sNo. 8. and other depoſitions, that the Lieutenant Governor aſked the Board, what protection there would be for the Commiſſioners if both regiments were order'd to the Caſtle: and this, very probably, gave the occaſion for mentioning the Commiſſioners at all.—Mr. Tyler, upon that queſtion, might expreſs his ſentiments on that head; and having ſo fair an opportunity, might alſo expreſs his ſentiments concerning the Commiſſioners themſelves, and the low eſtimation in which they are held by people in general, not only here but throughout the continent: and this being intermixed with the ſubject of the day, viz. the removal of the troops, might occaſion what he meant to ſay relative to the troops only, to be underſtood by ſome as relative to them and the Commiſſioners alſo It is certain that all the Gentlemen of the Council then preſent, have declared on oath, they have no remembrance that Mr. Tyler ſaid there was a plan laid for the removal of the Commiſſioners; and Mr. Gray adds to this declaration, that he took particular notice of what Mr. Tyler did ſay▪ Mr. Tyler himſelf,No. 8. upon the moſt ſerious recollection, declares on oath, "that the aſſertion, that he ſaid there was a plan formed to remove the Commiſſioners, or that it was any part of a plan to remove them, is a groſs miſrepreſentations; and that in his beſt judgment and firm belief no plan to remove the troops, before their firing on the inhabitants of Boſton, or at any time whatever to remove the Commiſſioners of the Cuſtoms, ever was formed or forming by the people, or any number of perſons whatever." He further declares "that on the Lieut. Governor's aſking in ſaid Council, what will become of the Commiſſioners, if the troops ſhould be removed, ſeveral of the Council gave it as their opinion, that they would be ſafe, and that they always had been ſafe: And he verily believes nothing was ſaid to the contrary by any one of the Council preſent."

Mr. Gray declares,No. 8. that upon the Lieut. Governor's aſking the ſaid queſtion, he anſwered, "that the Commiſſioners would be as No. 11. ſafe without the troops as with them: for that the people would never be ſo mad as to offer them the leaſt violence when the troops could ſo eaſily be recalled for their protection." He further declares "that one Gentleman at the Board immediately ſeconded him, and aſſured his Honor of their ſafety, and added, that he would pawn his life they ſhould receive no injury."

Mr. Danforth declares,No. 7. "he well remembers that divers of the Council then declared, that in their opinion the Commiſſioners might continue in town in all ſafety after the troops were removed thence; and that no one of the Council preſent diſcovered an opinion diverſe therefrom."

Mr. Erving declares,No. 10. that "he ſaid at the Board, in the hearing of the Lieut. Governor, on the 6th of March laſt, that in his opinion the Commiſſioners were ſafe in town, and never had been in danger; and that he would pawn his life they would remain ſafe, or words of the ſame import."

If the foregoing circumſtances and declarations be duly remarked, it will appear highly probable that if Mr. Tyler ſaid any thing about the Commiſſioners it was miſunderſtood: and this will appear ſtill more ſo, if it be further remarked, that, on the contrary ſuppoſition, it muſt have been conſidered as a reaſon for the troops remaining in town, if the Commiſſioners had been ſuppoſed to be in danger; as has been obſerved by ſeveral of the deponents; and "the ſaid deponents are perſuaded it would have been ſo conſidered by the Lieutenant Governor, and the commanding officer of the troops, and conſequently tended to defeat the very end, which the ſeveral members of the Council, and Mr. Tyler in particular, are repreſented as aiming at. And they further obſerve, that had he mentioned it as his opinion, that there was a deſign of the people to remove the Commiſſioners, it would have been ſo utterly contrary to the ſentiments of theſe deponents, and they doubt not of every other member of the Council preſent, except himſelf, that they verily believe it muſt have produced ſuch a diſpute, and oppoſition, as could not ſo ſoon have been forgot."

The ſecond thing obſervable from the Secretaty's AffidavitNo. 1. is, that divers Gentlemen of the Council, by referring expreſsly to it, adopted what Mr. Tyler had ſaid, viz. That people of the beſt characters among us had formed a plan not only to remove the troops but the Commiſſioners.

In contradiction to this, every Gentleman of the Council then preſent, deny that they adopted any ſuch declaration. So far are they from adopting what is repreſented to have been ſaid by Mr. Tyler about a plan for the removal of the Commiſſioners, that there is not one of them has the leaſt remembrance of any thing ſaid concerning a plan to remove the Commiſſioners: and therefore they could not refer to it, or in any ſenſe whatever adopt it.—Mr. Hubbard and Mr. Ruſſell declare,No. 9. "that they cannot recollect that they heard a word from Mr. Tyler of any intention to remove the Commiſſioners, ſo neither could they have adopted ſuch a ſtrange opinion, had it been advanced by any perſon whatever."

Mr. Erving, Mr. Pitts, and Mr. Dexter 10. declare the ſame; and add, "that, according to their beſt remembrance, what was really ſaid in Council by Mr. Tyler was not referred to by any other member preſent in ſuch manner, as that it could with the leaſt degree of propriety be affirmed in general terms, as it is in the depoſition of the ſaid Mr. Oliver, that they adopted what Mr. Tyler had ſaid."

Mr. Danforth in his depoſition recites,No. 7. "that whereas in Mr. Oliver's aforementioned affidavit, it is aſſerted that divers members of the Council adopted what Mr. Tyler had ſaid, by referring to it, and thereby excuſing themſelves from enlarging (which aſſertion plainly imports that divers members of the Council aſſented to and adopted all that Mr. Oliver in his affidavit had repreſented to have been ſaid by Mr. Tyler, relative to a plan formed to remove the Commiſſioners as well as the troops) He the deponent declares, that altho' he had the like apprehenſions Mr. Tyler had of the danger of further bloodſhed, in caſe the troops ſhould continue in the town, yet that he never adopted any ſentiment, that a plan had been concerted for removing the Commiſſioners (or even the troops by way of compulſion) and, ſo far at leaſt as relates to the Commiſſioners, this deponent is fully perſuaded, that no member of the Council then preſent, did adopt the ſame: inaſmuch as he well remembers that divers of them then declared, that in their opinion the Commiſſioners might continue in town with all ſafety after the troops were removed thence; and no one of the Council then preſent diſcovered an opinion diverſe therefrom."

From theſe depoſitions and what went before, it appears that the ſaid Gentlemen of the Council were ſo far from adopting what the Secretary repreſents to have been ſaid by Mr. Tyler concerning a plan for the removal of the Commiſſioners, that there is not one of them has the leaſt remembrance of any thing ſaid about ſuch a plan; and therefore they could not refer to it, or in any ſenſe whatever adopt it.

The third thing obſervable in the Secretary's AffidavitNo. 1. is, what he declares about his draft expreſſing what had been ſaid in debate at Council, that it was allowed by the Council ſtrictly to expreſs the truth, but that it would not ſtand well on the council records. This declaration repreſents the Council in a very odious light. It conveys to the world this idea, that they rejected his draft becauſe it was true; and that the truth of it made it unfit to be recorded in the Council books: Whereupon an amendment was ſubſtituted. To ſubſtitute an amendment, that alters the truth, is to ſubſtitute a falſehood; and as the ſaid declaration ſuggeſts ſuch a ſubſtitution, is implies a charge of falſehood upon the Gentlemen that were preſent at that Council. But although the Committee apprehend the Secretary did not intend any ſuch charge, yet his words may probably be conſtrued to imply it.

With regard to the ſaid amendment, moſt of the ſaid Gentlemen have expreſſed their ſentiments in their reſpective depoſitions. Five of themNo. 9 and 10. declare, "that the words made uſe of in the amendment, as recited by the ſaid Mr. Oliver in his depoſition, which were the next morning propoſed in Council to be ſubſtituted inſtead of the terms the Secretary had uſed in the minutes the day before, theſe deponents then verily thought leſs liable to be miſconſtrued; and that by this alteration the true meaning and intent of the ſeveral members of the Council, in what they had on the preceeding day ſaid to the Lieutenant Governor, of the diſpoſition of the people, would fully and fairly appear."

Mr. Danforth declares,No. 7. "that the ſaid amendment was unanimouſly agreed to by the members of the Council then preſent, and contains the whole of what, after full debate and mature conſideration, was by them adopted, and (together with the advice given to the Lieutenant Governor, to uſe his influence that the troops might be removed) was, as this deponent apprehends, the whole that could regularly be certified by the Secretary, as they were the only Votes of Council that had paſſed upon that occaſion."

The Committee next proceed to conſider the Secretary's two PetitionsNo. 2 and 12. to the Board, and to make ſome obſervations on them.

In one of them he repreſents, "that his Depoſition or Affidavit above-mentioned appears by the tenor of it to have been made meerly to vindicate the Lieutenant-Governor, in deſiring that his Majeſty's troops might be removed to Caſtle William, after the fatal cataſtrophe of the 5th of March: he having been called upon by the Lieutenant-Governor to give a true relation of the proceedings had in Council on that affair."—If the Lieutenant-Governor deſired the ſaid depoſition for his vindication, could he not have been vindicated without the Secretary's traducing the Council, and bringing into queſtion the loyalty of the Town of Boſton, or Province? Was it not traducing the Council, to ſuggeſt that they rejected his draft becauſe it ſtrictly expreſſed the truth? And was it not bringing into queſtion the loyalty of the Town or Province, to ſuggeſt that a plan had been formed by people of the beſt characters among us to remove the Troops and Commiſſioners, and that divers of the Council adopted or allowed it to be true that there was ſuch a plan? Do theſe ſuggeſtions, and the declarations contained in the Secretary's depoſition, in which he wholly omits what was ſaid about the ſafety of the Commiſſioners, comport with a true relation of the proceedings had in Council on the above-mentioned affair; which relation the Lieutenant-Governor called upon him for?

The Secretary further repreſents, that "as holding his commiſſion immediately from the King, who therein expreſſes his confidence in his fidelity, he could not conſider himſelf as acting in breach of truſt, in making ſaid depoſition, as he was called upon by the Commander in Chief, who is the King's repreſentative, to give a true relation of the proceedings had in Council on that day."

Though the Secretary holds his commiſſion immediately from the King, the commiſſion conſtitutes him an officer of the Province, to do the buſineſs appertaining to the office of Secretary but does not give the Commander in Chief, notwithſtanding he is the King's repreſentative in the Province, any authority over him.—By virtue of his commiſſion, he is to do the proper buſineſs of Secretary. But could it be a part of ſuch buſineſs to take minutes at Council of what all or any of the members ſaid in their debates? and afterwards to give a depoſition of it, when called upon by the Commander in Chief? If it was not a part of ſuch buſineſs, for what purpoſe could he want to aſſiſt his memory by the ſaid minutes? Could this be any proof of fidelity to the King? or could it not be conſidered as a breach of truſt? Would not ſuch an idea of the buſineſs of a Secretary degrade him into the character of a ſpy and an informer? Would it not be inconſiſtent with freedom of conſultation and debate, and conſequently with one of the moſt eſſential privileges and rights of Council? and would it not therefore be ſubverſive of every principle, which diſtinguiſhes a free government from deſpotiſm? But admitting that the Secretary, as the King's officer, is under obligation to take ſuch minutes at Council and reduce them to a depoſition if deſired by the King's repreſentative (which is utterly denied) yet it appears by one of the Secretary's petitions to the Board, that he officiouſly, without the privity of any one, took the minutes of what was ſaid in the debates of Council on the 5th of March.

If the Secretary could think himſelf authorized to take ſuch minutes, and give ſuch a depoſition, was he not under the obligation of honor, and did not juſtice require him, to communicate it to the Council before he had compleated and delivered it? Had he done ſo, the miſtakes and partial repreſentations contained in it might have been corrected, and his own honor and juſtice remained unimpeached.

It has been for ſome time juſtly complained of, that depoſitions, memorials, and every ſpecies of information, have been taken and ſent to England in a ſecret manner; and there made uſe of to repreſent his Majeſty's ſubjects here in an odious light: which has occaſioned troops and naval armaments to be ſent hither, to the great and unjuſt annoyance and diſtreſs of his Majeſty's ſubjects of this Province. It was therefore the more extraordinary that the Secretary, in the affair of his depoſition, ſhould act in the ſame ſecret manner, eſpecially as it reſpected what had been ſaid in Council; about which he could eaſily have informed himſelf from the members of it, who at the ſame time had a right to know what he had repreſented concerning them.—Whatever may have been deſigned with regard to the operation of this depoſition, the manifeſt tendency of it is to give a moſt unfavorable, and at the ſame time a moſt unjuſt idea of the people here, and of the Council in particular.

As the ſaid depoſition repreſents the Council in an ill light, it could be no diſagreeable preſent to Governor Bernard, to whom it was ſent by the Lieutenant-Governor, as he informed the Board. His Honor at the ſame time informed them, that he deſired Governor Bernard to keep it to himſelf, unleſs his conduct with regard to the removing the troops ſhould be faulted, in which caſe it was to be made uſe of for his Honor's vindication. Whether it was uſed or not for that purpoſe is uncertain: but this is certain, that it has been publiſhed in London, annexed with other depoſitions to a printed pamphlet, intitled "A fair account of the late unhappy diſturbance at Boſton, in New-England": in which pamphlet and depoſitions is given a very unfair, and, in all material circumſtances, a very falſe account of what it therein called the late unhappy diſturbance. The moſt material thing aimed at in the ſaid pamphlet, is to obtrude as truth on the public this falſehood, viz. that a plan was here laid for the expulſion of the troops, prior to their firing on and killing a number of the inhabitants of the town: and the principal if not the only depoſition that in any meaſure tends to ſupport ſuch a charge is the Secretary's above mentioned.

This depoſition has in ſome degree anſwered the purpoſe of the Pamphlet writer or procurer; and is well calculated 〈◊〉 anſwer the further purpoſe of Governor Bernard, to effect a change in the conſtitution of the Council, by giving of the laſt year's Council a very diſadvantageous idea; from which will be formed the idea of the preſent Council, which include the ſame members as the laſt.

This depoſition has been attended with circumſtances that appear in ſome degree remarkable. It was taken on the ſame day on which the other depoſitions (or moſt of them) annexed to the ſame pamphlet, were taken, viz. the 13th of March. They all went (as ſeems probable) by Mr. Commiſſioner Robinſon, who ſailed for England the 16th of March; and they are all publiſhed together in the ſame pamphlet. Whether theſe circumſtances are caſual, or whether they indicate a mutual correſpondence and communication between perſons here, with regard to the ſaid depoſitions, there do not appear any ſufficient means preciſely to determine.

The Secretary further repreſents "how cautious he was in framing his depoſition; and that he is confident he has been preciſe in ſetting down the very words uſed on the occaſion, without adding any conſtruction of his own."

How cautious and preciſe the Secretary has been, eſpecially in repreſenting what was ſaid about the Commiſſioners, has fully appeared above, under the article relative to them. He not only gives an imperfect account of what he has repreſented, but has wholly omitted all the declarations made at Council, relative to the Commiſſioners, that they would be ſafe, notwithſtanding the troops ſhould be removed: which has already ſufficiently appeared.

The Secretary goes on to obſerve, that "the principal matter, wherein the teſtimony of divers [or rather of all] of ſaid Gentlemen differs from his own, appears to him to be concerning what relates to the Commiſſioners: with regard to which he apprehends his depoſition is fully ſupported by the teſtimony of diſintereſted witneſſes then preſent."

The Secretary here ſuggeſts that the Gentlemen of the Council are intereſted; and therefore that their teſtimony, wherein it differs from that of his witneſſes, whom he repreſents as diſintereſted, muſt be invalidated.

Seven Gentlemen of the Council have given teſtimony about what Mr. Tyler is repreſented to have ſaid in Council, concerning the Troops and Commiſſioners. In this matter, it is evident, they are wholly diſintereſted. What inducement then could they have to pervert the truth? How is their teſtimony in this matter invalidated?— They may be ſtiled diſintereſted witneſſes, as properly as thoſe produced by the Secretary; and much more ſo than two of them, who act under, and are dependant on the Secretary for their continuance in office.

The Committee have been thus particular in this matter, that the true ſtate of it might appear; and that thereby the pernicious conſequences to the Province, which the Honorable Board apprehend the Secretary's depoſition may be attended with, may be prevented.

So far as this matter ſtands related to the Council, it appears that the Secretary's depoſition exhibits to the world a very diſhonorable and injurious idea of them, by ſuggeſting, that becauſe his draft was allowed ſtrictly to expreſs the truth, it would not ſtand well on the Council records, and was therefore rejected by the Council. —It appears alſo that the Secretary, in a ſecret manner, has taken minutes at Council of what was ſaid by the members of the Council in their debates.—That he has ſubſcribed his name to a paper containing thoſe minutes, and has taken his depoſition before Foſter Hutchinſon, Eſq to the truth of it; alſo, that the ſaid paper and depoſition have been ſent by the Lieutenant-Governor to Governor Bernard, and that they have been ſince publiſhed, with other depoſitions, annexed to a printed pamphlet deſigned to defame the Province, with regard to the unhappy affair of the 5th of March.

The conduct of the Secretary in this affair is not only a breach of truſt in him, and injurious to the character and honor of the Council, but is deſtructive of all freedom of ſpeech and debate, and conſequently a breach of privilege—the moſt eſſential privilege belonging to the Council, or that can belong to a deliberative body.

The Committee therefore are humbly of opinion, that the honor of the Council requires that the Board ſhould come into the following Reſolutions.

1. Reſolved, That Andrew Oliver, Eſq Secretary of this Province▪ by ſecretly taking minutes at Council of what was ſaid by the members of Council in their debates, alſo by ſigning a paper containing thoſe minutes, and further by giving his depoſition to the truth of it, has in each and all thoſe inſtances acted inconſiſtent with the duty of his office, and thereby is guilty of a breach of truſt.

2. Reſolved, That the ſaid Andrew Oliver, Eſq in as much as ſuch proceedings are deſtructive of all freedom of debate, is guilty of the breach of a moſt eſſential privilege of this Board.

3. Whereas the ſaid Andrew Oliver, Eſq has ſuggeſted in his ſaid depoſition, that becauſe his draft was allowed ſtrictly to expreſs the truth, it would not ſtand well on the Council records, and was therefore rejected by the Council, Reſolved, That by ſuch ſuggeſtion he has injured and abuſed the members compoſing that Council, and by ſo doing has reflected great diſhonor on this Board.

4. Reſolved, That an atteſted copy of this report, and the petitions and depoſitions to which it relates, be ſent to Mr. Agent Bollan, in order that he may make the beſt uſe of them he can, for the benefit of this Province.

In COUNCIL, October 24, 1770.

Read and unanimouſly accepted, and thereupon the Board came into the following Reſolutions.

I. RESOLVED unanimouſly, That Andrew Oliver, Eſq Secretary of this Province, by ſecretly taking minutes at Council, of what was ſaid by the members of Council, in their debates, alſo by ſigning a paper containing thoſe minutes, and further by giving his depoſition to the truth of it, has in each and all thoſe inſtances acted inconſiſtent with the duty of his office, and thereby is guilty of a breach of truſt.

II. RESOLVED unanimouſly, That the ſaid Andrew Oliver, Eſq inaſmuch as ſuch proceedings are deſtructive of all freedom of debate, is guilty of the breach of a moſt eſſential privilege of this Board.

III. WHEREAS the ſaid Andrew Oliver, Eſq has ſuggeſted in his ſaid depoſition, that becauſe his draft was allowed ſtrictly to expreſs the truth, it would not ſtand well on the Council records, and was therefore rejected by the Council; RESOLVED unanimouſly, That by ſuch ſuggeſtion he has injured and abuſed the members compoſing that Council, and by ſo doing has reflected great diſhonor on this Board.

IV. RESOLVED, That an atteſted copy of this report, and the petitions and depoſitions, to which it relates, be ſent to Mr. Agent Bollan, in order that he may make the beſt uſe of them he can, for the benefit of this Province.

JOHN COTTON, D. Secr'y.

Province of Maſſachuſetts-Bay, 29 October 1770. To the Honorable his Majeſty's Council for the ſaid Province, Humbly ſhews Andrew Oliver,

THAT it ſo happened he had no opportunity to ſee the Report of your Committee and your Honor's Reſolutions thereon until ſome time after they had paſſed the Board. That he did immediately thereupon obſerve to your Honors upon two paragraphs in ſaid Report relating to facts only; and pray an alteration; but as your Honors were then of opinion that the clauſes to which he excepted, might as well be ſet right by his explaining himſelf in a written Addreſs to the Board, he now begs leave to obſerve upon the ſaid clauſes.

The firſt of them runs thus— "The Secretary himſelf has lately declared before the Board that he did not conceive Mr. Tyler to mean ſuch a preconcerted plan, and that he never believed any ſuch plan had been formed."—Your petitioner upon reading the Report, declared to your Honors that he well remembered that he expreſſed himſelf in theſe terms—"I do not believe any ſuch plan ever had been formed"—and no one Gentleman at the Board would undertake to ſay the expreſſion was—"I never did believe any ſuch plan had been formed"—Theſe ſeveral modes of expreſſion he apprehends do convey ideas very eſſentially different. And when your Honors recollect that this was not declared in an addreſs to the Honorable Board, but rather ſaid in converſation with ſome of the members near whom he ſat, it will not be thought ſtrange that the expreſſion can be no better aſcertained by the Board.

As to the other part of this declaration, viz. "That he did not conceive Mr. Tyler to mean ſuch a preconcerted plan"—he humbly conceives he muſt have been miſunderſtood; becauſe he has been all along ſtudiouſly careful to give no opinion about it, and has always wiſhed he might never be brought to a public declaration upon that matter. He thinks it very probable ſuch an opinion might be taken up by the Board, from his repeatedly declaring "that he had not in his depoſition ſet forth that Mr. Tyler had ſaid there was a preconcerted plan"; and would by no means be underſtood even to inſinuate that the honorable Board meant to put any unjuſt colouring upon the declarations made by your petitioner before them. After all, as the thing in queſtion is a matter of mere opinion (and opinions vary as new circumſtances ariſe) he cannot conceive that his opinion upon the force of words can be of much conſequence; and inaſmuch as the preciſe words of the ſaid declaration cannot be aſcertained by the Board, he humbly moves to the conſideration of the honorable Board—Whether the Report aforeſaid would not ſtand as well without the whole clauſe.

Another paragraph in the Report which your petitioner aſked leave to explain himſelf upon, is that, wherein it is ſuggeſted, that there might be a mutual correſpondence and communication between perſons here, with regard to the ſeveral depoſitions publiſhed in the ſame pamphlet.—With regard to which your petitioner can with the greateſt ſolemnity declare, that he never ſaw or knew any thing concerning either one of the other depoſitions contained in the ſaid pamphlet, until he ſaw them in the pamphlet itſelf a few weeks ago; nor did your petitioner know that his own depoſition was ever ſent to England, until he ſaw it in the ſaid pamphlet. He gave his Honor the Lieutenant-Governor a copy of it; nor did he ever give out any other copy of the ſame. His Honor has declared at the Board that he ſent it home, and has given his reaſons for ſo doing.

Upon the whole, your petitioner humbly moves to the conſideration of the Board—Whether the Report of the Committee would not ſtand better without this clauſe, as well as the other? And prays that your Honors would take ſuch order in the premiſes as you ſhall judge meet.

If your Honors ſhould think fit to expunge the ſaid two clauſes, your petitioner ſhould aſk leave to withdraw this his repreſentation of the matters in queſtion.

As the honorable Board expected him to obſerve upon theſe two points only, he will add nothing with regard to the other parts of the Report or the Reſolves of the Board in conſequence of it, except that he is not convinced that he has done any thing inconſiſtent with the character of a man of honor, or been guilty of any breach of truſt: upon which points he explained himſelf in his petition of the 5th inſtant. But inaſmuch as your Honors have reſolved that the proceedings in this buſineſs be ſent to Mr. Bollan, in order that he may make the beſt uſe thereof he can for the benefit of this Province —your petitioner will, in his contracted ſphere, chearfully co-operate in every reaſonable meaſure for that end, conſiſtent with the juſt regard that every honeſt man ought to have for his own character: And ſhall as in duty bound ever pray, &c.

AND. OLIVER.

In COUNCIL, November, 14th 1770.

Read, and Ordered, That William Brattle, James Bowdoin, John Bradbury, Samuel Dexter, and Stephen Hall, Eſq's be a Committee to take this petition into conſideration, and report what they think proper this Board ſhould do thereon.

JOHN COTTON, D. Secr'y.

The Committee on the Secretary's Petition of the 29th of October laſt have taken the ſame into Conſideration and made the following Obſervations thereon, which are ſubmitted to the Honorable Board. WM. BRATTLE, by Order.

THE Secretary's laſt Petition to the honorable Board begins with ſhewing "that it ſo happened he had no opportunity to ſee the report of your Committee, and your Honor's Reſolutions thereon, until ſometime after they had paſſed the Board."

On which your Committee would obſerve, that if the Secretary had thought proper he might have been preſent, as his Deputy was, at the time the ſaid report was made, and whilſt it was under conſideration, which would have given him a full knowledge of its contents: But that his knowing it, was in no wiſe neceſſary to the Board's paſſing upon it, as the examination of the evidence on both ſides, and in his preſence, had been had ſome time before, agreeable to his petition; and as the ſaid report, beſides a ſummary of the evidence, and one or two incidental circumſtances, contained nothing but the Committee's obſervations on that evidence, and the reſolutions they recommended to the conſideration of the Board. They would further obſerve, that the Board make no ſecret of any of their proceedings: which however in this caſe they might have juſtly done, as the Secretary in a ſecret manner took minutes of what he repreſents had been ſaid in Council, and in a ſecret manner gave his depoſition concerning it, and will doubtleſs in a ſecret manner, at leaſt without the knowledge of the Board, make repreſentations on the ſubject of their proceedings in this affair; which if right or wrong, the Board for that reaſon, can neither acquieſce in, or detect.

On this occaſion the Committee cannot omit taking notice of what his Honor the Lieutenant Governor obſerved in Council upon the ſaid report, a few days after its acceptance by the Board, viz. That the King had a right to know all that is at any time ſaid or done in the privy Council, conſidered either as a body or as individuals; that the calling in queſtion this right would operate to the prejudice of the Province, more than any thing that had been yet done; and that the Secretary did his duty in taking minutes, and conducting as he did.

As to the former part of this declaration, that the King had a right to know what paſſed at the Privy Council, is granted, and has never been called in queſtion by the Council, either in the report aforeſaid, or in any of their proceedings. The King has not only a right to know, but in fact may be ſaid to know whatever paſſes in Privy Council, even at the time of its paſſing: His Majeſty being a conſtituent part of every Privy Council, and always preſent by his repreſentative. There is nothing in the ſaid report, which juſtly be conſtrued to call in queſtion that right. If ſuch a conſtruction has been given to any part of it, it is forced and unnatural, and which the Board wholly diſavow. They do not therefore apprehend, that it can in the leaſt degree operate to the prejudice of the Province in any reſpect whatever; and they humbly rely on his Majeſty's juſtice and goodneſs, that no ſuch operation will be the effect of it. If his Honor had pointed out the clauſe capable of ſuch a conſtruction, they would have received it as an inſtance of his regard to the Province, and to them.

As to the laſt part of the declaration, that the Secretary did his duty in taking minutes and conducting as he did, the Committee think it needleſs to ſay any thing on this head, as the contrary is fully proved in the report aforeſaid.

The Secretary in the ſaid Petition takes exception to two clauſes of the ſaid report: the firſt only of which needs to be noticed. It runs thus, "The Secretary himſelf has lately declared before the Board, that he did not conceive Mr. Tyler to mean ſuch a preconcerted plan, and that he never believed any ſuch plan had been formed."

The Secretary divides this clauſe into two parts, and makes obſervations on each. One of the obſervations is, "that no one Gentleman at the Board would undertake to ſay, that the expreſſion was preciſely as above-mentioned:" and another is, "that he would by no means be underſtood even to inſinuate that the honorable Board meant to put any unjuſt colouring upon his declarations."—The words, whatever they were, were ſpoken by the Secretary before the Board, not in converſation with any of the members, but by way of obſervation on one of the papers in his affair, that had been juſt read to the Board.

Now although no one Gentleman at the Board would undertake to give the preciſe words uſed by the Secretary on that occaſion, yet divers of them at the time he firſt mentioned this matter to the Board, and many of them ſince have declared, and they do declare, that what he ſaid conveyed to them the ſame idea as the words made uſe of in the report, and above quoted, do convey. And notwithſtanding the Secretary inſinuates what he ſays he would by no means inſinuate, "that the Board meant to put an unjuſt colouring on his declarations," yet the Board are wholly clear of that charge, and meant to repreſent truly what the Secretary ſaid, which they ſtill think they have done, although it may not be in the preciſe words ſpoken by him. But it is of ſo little importance, whether the declaration above quoted was made or not, that the Board would have ſuffered the Secretary's explanation of himſelf, to have paſſed unremarked on, if it had not been attended with an implied reflection upon their veracity.

The Secretary's Petition mentions further, "that he did not know that his own depoſition (containing his ſecret minutes aforeſaid) was ever ſent to England until he ſaw it in the pamphlet" he refers to.

Though the Secretary did not (ſtrictly ſpeaking) know, that his ſaid depoſition had been ſent to England, he could have no ſufficient reaſon to doubt it. At the time he delivered his depoſition to the Lieutenant Governor, and alſo when his Honor applied to him for it, it is probable he was informed for what purpoſe it was wanted. But admitting he was not, it would be a reflection upon his underſtanding, to ſuppoſe he could have any doubt, that the depoſition was intended to be ſent to England. His ſaying therefore he did not know it had been ſent, is neither a proof, that he did not know it was intended to be ſent, nor any juſtification of himſelf for delivering it: eſpecially as it was done without giving the Gentlemen whom it reſpected, and whoſe character, as well as that of the Province, was eſſentially affected thereby, the leaſt notice of it.

The Secretary's Petition further mentions, that "as the Board expected him to obſerve upon theſe two points only (contained in the two clauſes above refered to) he will add nothing with regard to the other parts of the report, or the reſolves of the Board in conſequence of it, except that he is not convinced, that he has done any thing inconſiſtent with the character of a man of honor, or been guilty of any breach of truſt."

It is to be obſerved here, that when the Secretary mentioned to the Board the ſaid two clauſes, he excepted to no other part of the report; and when the Board conſented he ſhould explain himſelf by ſomething written upon them; he ſaid he ſhould confine himſelf to thoſe clauſes only: which was acquieſced in. He was not limited to them by the Board, and the ſuggeſtion, that he was ſo limited, is without foundation.

As to what the Secretary ſays, that he is not convinced he has done any thing inconſiſtent with the character of a man of honor, or been guilty of any breach of truſt, the Committee would only remark, that altho' the Secretary's general character may be conſiſtent with the character of a man of honor, yet what he has done with regard to his minutes and depoſition aforeſaid, is in the whole of it inconſiſtent with that character, and clearly involves in it a breach of truſt: all which is ſufficiently manifeſt by the report aforeſaid.

In COUNCIL, November 16, 1770.

Read and accepted, and Ordered, That an authentic Copy of the Secretary's Petition of the 29th October laſt, and of the foregoing Report thereon, be ſent to Mr. Agent Bollan, to be made uſe of by him for the benefit of the Province, as occaſion ſhall require.

JOHN COTTON, D. Secr'y.