by Nathan Allen
“Gentlemen of the House of Representatives,
I have received an Answer from you to a Message of mine; informing you of my having upon a sudden Apprehension of Danger, fitted out the Province Sloop to protect a considerable and very interesting Fishery, belonging to this Province: Upon which Occasion you are pleased to observe, that the Method of doing this, which you call making or increasing Establishments is taking from the House the Right of originating Taxes, annihilating one Branch of the Legislature, and tending to make the Government arbitrary.
These are hard Words: and the Consciousness of my own Integrity will not permit me to submit in Silence to such Imputations. I know what the Priviledges of the People are, and their Nature and Bounds: and I can truly say that it has never been in my Thoughts to make the least Invasion of them. If therefore you think proper to send such a Charge as this to the Press; I must desire that my Vindication may accompany it.
In Order to which I shall first consider what the legal and constitutional Powers of the Governor and Council are, then state the Fact in Question, and by Application of the one to the other, see whether the Conclusions before mentioned will follow. In this Disquisition I shall not inquire whether any Necessity can be sufficient to justify a House of Representatives in giving up the Priviledge oj originating Taxes; as I do not believe that such a Cession was ever desired by any Person concerned in the Government, or that any Governor and Council since the Revolution attempted or ever will attempt to tax the People.
The Business of originating the Taxes most certainly belongs to the Representatives of the People, and the business of issuing Money out of the Treasury, as certainly belongs to the Governor with the Advice of the Council. In general all Votes and Orders for the Charge of the Government originate in the House of Representatives, and the Money for defreying such Charges is issued by Warrant of the Governor with the Advice of Council, without any further Reference to the House of Representatives.
But as it is impossible that the General Court should provide for every Contingency that may happen unless they were continually sitting; there will sometimes be Cases in which the Governor, with the Council, is to be justified in issuing Money for Services not expresly provided for by the General Court: Of these there are two very obvious.
The one is, where a Danger arises so immediate and imminent that there is no Time for calling together the Assembly. In this I apprehend there is no other Limitation of Expense, but’in Proportion to the Evil impending: For the Safety of the People being the supreme Law, should at all Events be provided for.
The other is, where the Expence of some necessary Service is so inconsiderable, as to be not worth the while to put the Province to the Charge of the Assembly’s meeting for that Purpose only, at an Expence perhaps ten or twenty Times more than the Sum in Question.
This I take to be the Law and Usage of every Royal Government on the Continent. In that over which I formerly presided, where the people were very averse to frequent or long Sessions of the Assembly, I have upon an Emergency, with Advice of the Council only, raised Three Hundred Men at a Time, and marched them to the Defence of the Frontiers; and when the Assembly has met, have received their Thanks for so doing.
Now let me state the Case in Question. Most of the principal Merchants in Salem and Marblehead, who were considerably interested in a Fishery near the Gut of Canso, in which I am told upwards of One Hundred Vessels from this Province were employed, received Advice that there was a French Privateer or Pirate cruizing in those Parts. It has appeared since, that this Alarm was not peculiar to this Province: It reached Quebec, from whence an armed Schooner was fitted out to look after this Frenchman. It reached New-York, from whence General AMHERST advised me of this French Vessel. These Merchants therefore applying by their Deputies to me for an immediate Protection of their Fishery, I laid the Matter before the Council, and it happening that the Province Sloop was just returned from Penobscot, it was advised by the Council, that she should be immediately fitted out to go to the Protection of this Fishery: this was done in the most frugal Manner possible; out of the Fifty Men put on board the Sloop, only twenty-four were charged to the Province, the rest were drawn out of the Provincials employed at Castle-William, and in the recruiting Service; the Ammunition and Military Stores were taken from the Castle, to which they have been restored without Loss or Expense; the Men were engaged only for one Month, after which they were not to be continued without the Advice of the General Court. This is the true State of this Transaction; and surely I may say it deserved a very different Animadversion than what it has had.
Now to apply it to the Censure it has met with: This was an Act which the Governor with the Council had a Right to do; it was a legal and constitutional Exercise of the Powers vested in them; it was an Exertion of the Executive Power of the Government, distinct from that of the Legislature. If it was wrong and ill advised (which I don’t mean to admit) it could amount to no more than an improper Application of the public Money, by those who have lawful Authority to apply such Money to the public Purposes. When this Distinction is considered; how can this Act, whether right or wrong, be applied to the Right of originating Taxes, annihilating one Branch of the Legislature and making the Government arbitrary?
As for the discretionary Part of the Act, after I have had the Advice of the Council, and the Approbation of my own Judgment and Conscience, I shall not enter into any further Argument about it, than just to observe; That if the Governor and Council legally acting in the Executive Administration, and determining to the best of their Judgment and Skill, with a conscientious Regard to the Good of the People, shall be liable to be called to account for Difference of Opinion only, the Government will be very much weakened. But I shall persuade myself that a steady Attention to the Peace and Welfare of the Province, which you recommend to Me, will always sufficiently justify my Conduct: and in that Confidence I hope I shall never fail to exert the Powers which have been committee to Me for the Defence and Protection of the People of this Province, by all lawful and constitutional Means.
Province-House,
Sept. 18, 1762. FRA. BERNARD.”
This being read, the Secretary instantly informed the Speaker, that his Excellency directed the attendance of the house in the council chamber.
The two houses had finished the publick business; and before this the house of Representatives had by a committee asked a recess, so it was presumed the house was sent for to be prorogued, as it turned out. The Speaker rose to go up to the council, without desiring the house to attend him, the usual and regular form, which it is presumed was forgot. But it was moved that his Excellency’s vindication, according to his desire, should be printed in the Journal. This motion was seconded, and passed in the affirmative by a great majority. Then a motion was made and seconded, for a committee to prepare a Reply to this vindication in the recess of the court, and to make report at the next session; this also passed in the affirmative by a considerable majority, and Mr. Speaker, Mr. Otis, and Mr. Tyler, were chosen a committee for said purpose. Then the House immediately attended his Excellency in the Council-Chamber. When his Excellency, after giving his assent to two or three bills, prorogued the court.
It was wished, at least by the moderate part of the house, that his Excellency had thought fit so far to give up the point, as to wave any contest about it, by assuring the house, that if his right was ever so clear, he would not exercise it, if grievous to the people. A like condescension crowned heads have practised, and found their account in it; as I am persuaded his Excellency would, if the unanimous vote of thanks from the whole representative body of this people is worth any thing. This I guess he would have had: And as it is a maxim that the King can do no wrong, but that whatever is amiss is owing intirely to those about him; so, with regard to his Excellency, we ought to presume the best; and that it is to be charged to the account of some weak or wicked advisers, that this business did not end happily. However, the matter is now become very serious, by his
Excellency’s vindication; which we shall next consider.
The Charter of the province of the Massachusetts-Bay, has invested the Governor and Council with power to issue (without the concurrence of the House, as it is now construed, or rather as the genuine sense of the Charter has been waved by former Houses) the monies out of the treasury. But the Question is, Whether this power be limited? If it is unlimited, the priviledge
of levying taxes by originating them in the House of Representatives, is of little value. What Representative would plume himself upon the priviledge of originating taxes, if the money could be squandered away at pleasure; which in other words -may happen hereafter to be just as the tools and sycophants of power shall advise. This power therefore, in the nature and reason of the thing, should seem to be limited by some usage or custom, if not by something more explicit. The words of the Charter are, “And we do for us, our heirs and successors, give and grant, that the said General Court or Assembly, shall have full power and authority to name and settle annually, all civil officers within the said province, for the time being; and to set forth the several duties, powers and limits of every such officer to be appointed by the said general court or assembly; and the forms of such oaths, not repugnant to the laws and statutes of this our realm of England, as shall be respectively administered unto them, for the execution of their several offices and places; and also to impose fines, mulcts, imprisonments, and other punishments; and to impose and levy proportionable and reasonable assessments rates and taxes, upon the estates and persons of all and every the proprietors or inhabitants of our said province or territory, to be issued and disposed of by warrant, under the hand of the Governor of our said province, for the time being, with the advice and consent of the Council, for our service, in the necessary Defence and support of our government of our said province or territory, and the protection and preservation of the inhabitants there, according to such acts as are or shall be in force within our said province.” Here seems to be an express limitation of the power. Nothing is left to usage or custom, much less to discretion. It is manifest from the Charter, that the Acts of the province are the only legal and constitutional justification to the Governor and Council, in issuing any money out of the treasury: “According to such Acts as are or shall be in force within our said Province,” are certainly no unmeaning words.
It is clear from hence, that without the aid of an Act of the province, the Governor and Council cannot legally take a shilling out of the treasury, let the emergency be what it may. It is agreed with his Excellency, that in issuing Money from the treasury, as the charter has of late years been construed the Governor and Council are meer executive officers. They are controllers general of the Treasury, i. e. the treasurer cannot pay without their warrant; but then they are as much bound by the acts of the province, as the treasurer himself. He, the Treasurer, indeed may be called to an account, but they can’t, being in other respects two branches of the Legislature. The only remedy therefore is a remonstrance, and when that proves ineffectual, the house may and ought to refuse to supply the Treasury, and stop a few Grants and Salaries; which would soon bring matters right without any dangerous shock to Government, or weakening thereof; but what the whole world must impute to a Governor and Council, that would oblige a House to have recourse to the last resort, but one; I mean as we are a dependent Government, a dutiful and humble remonstrance to his Majesty.
The Parliament of Great-Britain have as the last resort, been known to appeal to Heaven, and the longest sword; but God forbid that there ever should be occasion for any thing of that kind again; indeed there is not the least danger of it since the glorious revolution, and the happy establishment resulting therefrom. It was formerly the custom for the Speaker of the house to sign all warrants upon the treasury, but this was at last either tamely given up, or at least waved.
It may be objected, that tho’ our supply bills appropriate by far the greatest part of the sums raised, yet something is always expresly left for contingencies, and the Governor and Council ma and must in the nature of the thing apply this at discretion. I answer, 1. Even this is issued by force of an act, and not by virtue of any general power in the Governor and Council, independent of the act. 2. Neither custom nor usage suppose that this sum appropriated for contingencies could be applied to the fitting out of men of war, and making establishments for them; for armed vessels is one express appropriation in our acts, which shews that this is not considered as a contingency, and that the assembly do not expect any further charge for this
article, than they have appropriated.
3. All our Governors and Councils have not always confined themselves to the appropriation for contingencies, but some have drawn for what they deem’d contingencies when they have known the appropriation to be expended, and in short have not confined themselves to any appropriation in payment; whatever they may have done in the form of their warrants. 4. If the Governor and Council can fit out one man of war, inlist men, grant a bounty and make establishments, why not for a navy, if to them it shall seem necessary, and they can make themselves the sole judges of this necessity. The rumour in the case of the Massachusetts was that fourteen privateers instead of one pyrate were cruizing off Canso. What could this one poor sloop have done against such odds? Salus populi est suprema Lex. Why then did not the Governor and Council fit out fourteen men of war, or at least enough to take fourteen privateers? It has been said that there were no privateers among the fishermen, but that when they discovered the sloop, she was taken for one, and that many of the fishermen ran home in a fright, and lost their fares. How true this is I can’t say, but have heard it reported, and believe there is at least as much ground for it as there was to believe the story of fourteen privateers. The Governor and Council doubtless meant well as to the protection of the fishery, and had there been no unjustifiable extension of their power, everyone would have thankfully acquiesced. The money for fitting out this sloop might have been raised by the Governor and Council’s promise to recommend a reimbursement to the assembly. They might perhaps have borrowed it of the Treasurer upon the same terms, and the priviledges of the House thereby would have been preserved. It would be a very easy thing to raise twenty times the sum wanted to fit out this sloop upon the credit of a like recommendation. This method was taken in fitting out the King George in 1761, as· appears by the vote of Council, and the Govenor’s message afterwards to the house of Representatives, and their vote thereupon, which last are as follows,
“Gentlemen of the House of Representatives,
“The provision made the last· session for manning the King George was soon found insufficient for the purpose, and after bearing up for a month the crew amounted to but thirty men. In this condition the ship remained, when I received advice that there were two French privateers on the coast and that there were several more to be expected: I immediately called a Council; at which attended a committee of the merchants. The council were of opinion, that the ship should be immediately fitted out: and in order to do it with more expedition, I offered that if the crew could be quickly compleated to an hundred men, I would put fifty provincials on board for a short cruize. It was therefore “advised to raise seventy men, and to give ten Dollars bounty: But there was no fund in the Treasury to resort to for this purpose. It was therefore concluded to order the Treasurer to borrow seven hundred Dollars of the merchants on the credit of the province, (not on the credit of a recommendation, as it should have been and perhaps was meant) which was accordingly done; and I must desire you would take care for the repayment
thereof.”
The House, after long debate, and divers referrences, on the second of June, voted, “that the province treasurer be directed to repay the seven hundred Dollars borrowed of the merchants on the credit of the province for bounty, in order to man the ship King George.”
I want to know why the same method of raising the money might not have been taken the first time of fitting out the ship King George, and in fitting
out the sloop Massachusetts.
However, even this method of supplying the treasury by the Governor and Council’s ordering subscriptions upon the credit of the province (by which it is presumed a recommendation to the assembly is meant) is by no means a justifiable practice.
The Governor and Council have naturally a great influence in all Houses of Representatives, and when the money is once taken up and applied, it would seem hard to make the subscribers lose it; and so in time it would come to be a thing of course, for the House to reimburse all expences the Governor and Council should be pleased to create in the recess of the assembly; and after a course of tame acquiescence in such a practice, the House would become as some desire to have it, a very insignificant, unimportant part of the constitution.
It is therefore the indispensible duty of the House of Representatives, to be very cautious how they allow or approve of any expences incurred even in this way.
His Excellency is pleased to wave any inquiry “whether any necessity can be sufficient to justify a House of Representatives in giving up the privilege of originating taxes?” for this reason only expressed; viz. “I don’t believe (says his Excellency) that such a cession was ever desired by any Person concerned in the government, or that any Governor and Council since the revolution, attempted or ever will attempt to tax the people.” I wish I could exercise as much charity towards former Governors and Councils, as for his Excellency and the present honourable Council; but I can’t. I am verily persuaded, that we have had some Governors and some Councellors, since the revolution, that would gladly have been as absolute as Turkish Bashaws; and that the whole tenor of their actions has given convincing proof of such a disposition.
A tax upon the people in form, by issuing a tax bill, and ordering an assessment, I believe has not been attempted by a Governor and Council since the revolution. This would be too alarming. The vulgar are apt to be forcibly affected with names and appearances, rather than by realities. If the money can be drawn out of the treasury without any regard to the appropriations, made by the acts of the province; and the House whenever called upon, will without murmuring supply the treasury again; they serve the purpose of a very convenient machine to quiet the people; and the money flows in with greater ease and plenty than if the Governor and Council were, ad libitum, to collect and dissipate the public treasure.