Arsonist: The Most Dangerous Man in America

by Nathan Allen

  It is observable, that in France and other despotic governments, ‘tis often with great difficulty, and sometimes with hazard, that the revenue is collected. Had Richlieu and Mazarine convinced the parliaments that it was a great priviledge to be allowed to vote as much money as was called for, and for any purpose the court might want it, the government would have had the appearance of liberty under a tyranny; which to those ministers would have been a vast ease and security. But those great politicians either never thought of this refinement, or, the parliaments were too stupid to be convinced, of the utility of such a plan.

  His Excellency proceeds, “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 and Council.” To say nothing of the doubt that might justly be made, whether a non-claim, waver, or even an express concession by any former house, of the priviledge of joining in a warrant, for issuing the money, can be binding upon their Successors? Would not a stranger to our constitution be lead to think, from this general assertion of the Governor, that he with the Council, could issue money without regard to the acts of the province, and the appropriations thereby made; and that the house indeed, had no right to appropriate, but only to lay the burden of taxes on the people? Especially when his Excellency in the next period says, that “in general, all votes and orders (and acts might have been added) for the charge of the governments, originate in the House of Representatives; and the money for defreying such charge, is issued by the Governor, with the advice of the council, without any further reference

  to the house of Representatives.”

  That this is true in fact, to wit, that after the money is raised, his Excellency and their Honors have no further reference to, or regard for the house, is possible. But that they have had some regard to appearances is certain from the form of their warrants,

  Province of the Massachusetts-Bay.

  By his Excellency the Governor.

  You are, by and with the Advice and Consent of his Majesty’s Council, ordered and directed to pay unto A. B. the sum of

  Which sum is to be paid out of the appropriation for

  For which this shall be your warrant.

  Given under my Hand at Boston, the Day

  Of 176 ,in the Year of His

  Majesty’s Reign. F. B.

  To Mr. Treasurer.

  By Order of the Governor, with the Advice and Consent of the Council.

  A. O. Secr’y.

  Now, if after the house have supplied the treasury, the Governor and Council have a right to issue the money without further regard to the house of Representatives; why are the words Out of the appropriation for, &c. inserted, but to salve appearances? Otherwise it might run thus, “Out of the public money in the treasury.” “But as it is impossible, (says his Excellency,) 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 & 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, when 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 expence, 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 of ten or twenty times more than the sum in question.” Frequent and long sessions I know are burdensome to the people, and many think they had better give up every thing, than not have short sessions. But let these consider that it is a very poor bargain, that for the sake of avoiding a session extraordinary, sacrifices the right of being taxed by their Representatives; and risques ten or twenty times the sum in the end, to be levied by a Governor and Council. I know too, that some gentlemen in order to lessen the weight of a House of Representatives, are constantly exclaiming against long and frequent sessions; the people are gulled with the bait, and the house when they meet, are often in want of time to compleat the public business, in the manner that they would wish, and the nature of some affairs requires. What is the consequence? Why, it is become a very fashionable doctrine with some, that in the recess of the court, the Governor and Council are vested with all the powers of the General Assembly. It is costly and unpopular to have frequent and long sessions; therefore they shall be few, short and hurried; and in the mean time, the Governor and Council shall have a right to do what they judge “the supreme law,” the good of the common-wealth, requires, and no limitation or bounds are to be set to the money they expend, but their sovereign judgment of the quantum of the impending evil; for, “the safety of the people being the supreme law, should at all events, and by all means (but that of calling an assembly together) be provided for.” This is a short method to put it in the power of the Governor and Council, to do as they please with the men and money of the province; and those Governor’s who can do as they please with the men and money of a country, seem to me to be, (or at least are in a pretty fair way soon to be) arbitrary; which in plain English means no more than do as one pleases. As to those inconsiderable services, not worth while to put the province to the charge of an assembly; it seems to be of no great importance whether they are performed or not. 2. There is always an appropriation for contingencies, great and small. If this sum should be exhausted, sufficient might always be procured upon the credit of a recommendation from the Governor and Council, for a reimbursement. 3. Any particular service had better suffer, and the province suffer, that way, than lose such a priviledge as that of taxing themselves; upon which single priviledge evidently depends all others, Civil and Religious.

  His Excellency tells us of “the law and usage of every royal government upon the continent;” and that, “in that over which he presided formerly, he had upon an emergency, with the 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 has received their thanks for so doing.”

  Whether the assembly of this province equal the assembly of New-Jersey, in gratitude or any other virtue, I shall not presume to determine. But this I am sure of, that this province has been more liberal in their grants to his Excellency, than to any of his predecessors. Instead of any debate about his salary, three grants have been made in less than two years, amounting to near three thousand pounds sterling in the whole, besides the very valuable island of Mount Desart which the province thought they had a right to grant subject to his Majesty’s confirmation; and which his Excellency doubtless will have confirmed to him. All this with the ordinary perquisites, besides the full third of all seizures, must amount to a very handsome fortune, obtained in about two years and two months. His Excellency has not been pleased to tell us, whether the assembly paid the expence of this extraordinary march, or whether the Governor and Council ordered it to be paid? Now if the assembly paid it, as they doubtless ought, after thanking his Excellency, and thereby admitting the utility of the measure, their priviledge was saved. But if the Governor and Council paid it out of the treasury, and the House acquiesced in the infringement of their priviledge, it cannot be produced as a precedent for us, let it be ever so royal a government. His Excellency has a right to transport any of the militia of this province to any part of it, by sea or land, for the necessary defence of the same; and to build and demolish forts and castles, and with the advice of the council in times of war, to exercise martial law upon the militia, but then it is with the House to pay the expence, or refuse it as they please. No man by charter can be sent out of the province but by an act of the three branches of the legislature. The King himself applies to parliament to support his army and navy, and it is their duty to do it, and they ever have and will do i
t; and the supplies for these ever originate in, and are appropriated by the House of Commons; in whose money bills the House of Lords won’t presume to make any amendment; consent or reject in the whole is all the power they exercise in this particular.

  His Excellency next proceeds to state “the case in question,” by which I suppose is meant the facts relative to fitting out the sloop Massachusetts. The facts mentioned, I take it for granted are in the main true, but the most material one seems to be omitted, namely, that the Governor and Council made an establishment; in consequence of which the expense of this fitting out, or a great part at least has been paid out of the Treasury, by warrant from the Governor and Council. There is also a small mistake in his Excellency’s saying the sloop was then returned. She was expected, but her return was uncertain. Had the sloop been sent and the payor reimbursement referred to the House, there might have been no complaint as to this particular step. But the main question is not as to the right of sending the sloop, but of making, or increasing her establishment, and paying it out of the publick monies without the consent of the House; not only in this, but in a number of late similar instances, that have induced the House to question the right of the Governor and Council to draw monies out of the treasury in this way. Or more properly, as it results from the remonstrance of the House, and his Excellency’s vindication: The question is in effect, whether the House have a right to appropriate the money they agree to levy upon their constituents?

  It being pretty evident I hope by this time, that if the Governor and Council can issue what they please, and for what they please, that the House has no right to appropriate; and it is as clear that if the right of appropriation is of any avail or significancy, the Governor and Council cannot issue the monies from the treasury for what they please; but are bound and limitted by the appropriations and establishments made by the acts of the province, to which by the way they are two parties of three in the making.

  His Excellency having given us his state of the case in question, proceeds “to apply it to the censure it has met with” as his Excellency is pleased to express it. By which I presume his Excellency means the application he had promised in the beginning of his vindication. “I shall consider, says his Excellency, what the legal and constitutional powers of the Governor and Council are; then state the fact in question, and by the application of the one to the other, see whether the conclusion before mentioned will follow.”

  Here again there seems to be some little obscurity, by reason of these words, “fact in question” ; there being no question about the facts, but about the right, not so much about the right of fitting out the vessel, as the Governor and Council’s right to pay for it out of the treasury, without the consent of the House. What question can there be about facts? There is no doubt but that the vessel was sent, and that in consequence of an application from Salem and Marblehead gentlemen.

  I therefore presume to read the second paragraph of his Excellency’s vindication according to the sense and spirit, (tho’ not strictly agreable to the letter.) thus, “In order to my vindication (dele to which) I shall 1. Consider what the legal and constitutional powers of the Governor and Council are. 2. State the facts. 3. By application of the legal and constitutional powers of the Governor and Council to the fact, see whether the conclusions before mentioned will follow.” According to this division, which in the spirit, tho’ not in the letter, is a very good one; his Excellency has given us his sense of the legal and constitutional powers of the Governor and Council. His Excellency is undoubtedly as well acquainted with the nature of these powers, as “what the priviledges of the people are, their bounds and their nature.” I presume his Excellency also has the same thorough knowledge of “what the priviledges of the House of Representatives are, their nature and their bounds;” which last are more immediately the subject of inquiry, than those of the people. Tho’ it is true, that the priviledges of the House are the great barrier to the priviledges of the people, and whenever those are broken down the people’s liberties will fall an easy prey.

  His Excellency having finished his state of facts, proceeds according to the method premised to the third and last head of discourse, which is, with his Excellency the application; not “of the case in question, to the censure it has met with,”tho’ the latter words seem to import this; but of the legal and constitutional powers of the Governor and Council, to the facts, in order to make his conclusions. This is evidently his Excellency’s meaning. The application is mental. The conclusions are expressed. The first his excellency is pleased to make is in these words. “This was an act which the Governor with the Council had a right to do.” I am no great admirer of the syllogistic form of reasoning, and this dress is very uncourtly, yet all conclusive reasoning will bear the test of the schools. Let us try an experiment. His Excellency’s whole vindication may nearly in his own words be reduced to this categoric syllogism.

  “All the money for defreying the charges of the government is issued by warrant of the Governor with the advice of Council, without any further reference to the house of Representatives.”

  The principal merchants in Salem and Marblehead were frightened with a rumour of a privateer; upon their application the Governor and Council took the alarm, fitted out an armed vessel, and by their warrant defreyed the charge out of the treasury without any reference at all to the House of Representatives.”

  Therefore,

  1. “This was an act which the Governor with the Council had a right to do.” No man in his senses to be sure can deny the major proposition, for the word is plainly implies a right; according to Mr. Pope and other great authorities, “whatever is is right.” The minor is a bare recital of notorious facts; therefore the way is clear to follow his Excellency in the rest of his inferences. 2. Inference. “It was a legal and constitutional exercise of the powers vested in them.” 3. “It was an exertion of the executive power, distinct from that of the legislative.” 4. If it was wrong, &c.

  His Excellency then proceeds to ask the House a very important question. But before we consider what answer may be given to that question, and probably would have been given, had there been time before the court was prorogued; I beg leave to make a few observations upon his Excellency’s three last inferences. I have carefully examined the Charter, and the laws of this province, and think I may challenge any man to show any thing in either, that gives the least colour of right to the Governor and Council, to fit out an armed vessel to cruize upon the high seas, at the expence of the province, or to grant a bounty for inlisting the seamen, or to impress them when they won’t inlist fast enough, as in the case of the ship King George, or to make an establishment for the officers and seamens wages, much less to issue the money from the treasury for defreying these charges by warrant of the Governor and Council, without any reference to the House of Representatives, who must upon supposition of such powers be strangers, total strangers to the expense thus brought upon the province.

  But we are told that “this is an exertion of the executive power of the government, distinct from the legislative.”

  I am as much for keeping up the distinction between the executive and legislative powers as possible. Happy, very happy, would it be for this poor province, if this distinction was more attended to than it ever has been. I am heartily rejoiced however, that his Excellency seems here to discountenance and explode the doctrine that some among us have taken great pains to inculcate, viz. that in the recess of the general assembly the whole power of the three branches devolves upon the Governor and Council. If I may compare small things with great, without offence, this doctrine is as absurd as if a man should assert that in the recess of parliament, the whole power of parliament is devolved upon the King and the House of Lords. Had such a doctrine always prevailed in England, we should have heard nothing of the oppressions and misfortunes of the Charles’s and James’s; The revolution would never have taken place; the genius of William the third would have languished in the fens of Holland, or evaporate
d in the plains of Flanders; the names of three George’s would doubtless have been immortal; but Great-Britain to this day might have been in chains and darkness, unblessed with their influence. I take it for granted therefore, his Excellency must mean by “power of the government,” not the power of the whole province in great and general court assembled, but only the executive power of the Governor and Council, distinct from the legislative, as just explained by him. Names are sometimes confounded with things by the wisest of men. It is however of little importance what the power is called, if the exercise of it be lawful. If the power of taxing is peculiar to the general assembly, if the charter has confined it to the general assembly, as I think it evidently does, and this act of the Governor and Council is a tax upon every inhabitant, as it clearly is, being paid out of money raised by their representatives upon them for other purposes, which must remain unsatisfied; and so much more must be raised upon them as is thus taken away: It follows that as all taxation ought to originate in the House; this act of the Governor and Council is so far from being an executive act peculiar to them, that it is evidently taking upon them in their executive capacity, or what other name else, you are pleased to give it, a power not only confined by the charter, law and constitution of the province, to the general assembly or legislative body of the province, but so far confined to one branch of that body, that it can lawfully and constitutionally originate only in the House.