by Nathan Allen
If therefore this act was wrong and ill-advised, which I think has been abundantly proved, whether his Excellency will be pleased to admit it or not; it could “amount to more than an improper application of the publick money by those who have lawful authority to apply such money to the publick purposes.” It is granted, should the treasurer without warrant do such an act, it would be no more than an improper application of the public money by one who has lawful authority to apply such money to the publick purposes, by warrant from the Governor and Council. Should the treasurer act without such warrant, he would be accountable. But when he has the Governor and Council’s warrant, that perhaps will justify, or at least, ought to excuse him, be the warrant right or wrong; because it would be hard to make him answerable for the conduct of his superiors, and to expect him to set himself up as a judge against the Governor and Council, one of which joins in his choice, and the other has an absolute negative upon him. But upon supposition the Governor and Council act wrong, and misapply the monies of the province, which his Excellency seems to concede, is at least a possible case. What is to be done? I agree with his Excellency that they are not liable to be called to an account, and it would be a ridiculous vanity and presumption in the House to think of any such thing. We have no body to institute a suit against the Governor and Council; no court to try such a suit; all that would be left therefore in so unhappy a case (if the priviledge of the House of joining in all issues from the treasury has been given up by former assemblies, and that is binding upon their successors, “which I don’t mean to admit”) is to remonstrate. This method the House have taken in the present case, rather than at this juncture reclaim their ancient priviledge of joining in all warrants for the issues from the treasury. However, I conceive that the right of joining in such warrants can never die. But to confine ourselves to his Excellency’s inferences, let us for a moment concede that this act by the Governor and Council, at most is only a misapplication of the publick monies. The conduct of the House is certainly to be justified. The Governor and Council of the province misapplying money, is a grievous event, a terrible misfortune, and a dreadful example to inferiors. It would be enough to infect seven eighths of the petty officers in the community. Whenever a peculator, great or small, should be called to an account after such an event repeated, and passed unnoticed by the House, he would at least console and comfort, nay even plume himself with such like reflections as these. “My betters have done so before me. They make what applications they please of the publick money, without regard to law, or the duty of their trust, and so will I.” Tho’ with regard to the present Governor and Council, it is presumed a misapplication can proceed only from an error in judgment, which the wisest are in a degree subject to, not from any supposed pravity .of inclination; yet it would be of dangerous tendency, and therefore a proper subject of remonstrance. A remonstrance is not an insolent and presumptuous “calling a Governor and Council to an account for difference of opinion only”, nor any charge of wilful evil, but only of error in judgment, and a humble endeavour to point it out; relying always upon their known goodness and wisdom, that whenever they shall discover the truth, they will readily follow it. The House of Commons remonstrating (as they have sometimes done) I believe would be astonished to hear their humble petitions to the Throne called “hard words and groundless insinuations, &c. and viewed as calling the King to account. It is true, that the Governor and Council may do many things, if they are so disposed, which they cannot be called to an account for in this world; but this will hardly prove that they have a right to do them, especially after the whole body of the people by their Representatives complain of them as grievous. It is by no means a good inference in politicks, any more than in private life, or even in a state of nature, that a man has a right to do every thing in his natural power to do. This would be at once to make a man’s own will and his power, however obtained, the only measure of his actions.
But in answer to his Excellency’s grand question, it will appear that this act, and the like instances complained of, are more than a bare misapplication of the public money; they are what the house called them “a method, (and they might have added a lately devised method, the first instance almost being in the case of the ship King-George, in 1760) of making and increasing establishments by the Governor and Council,” in effect taking from the House their most darling priviledge, that of originating all taxes.” “In short (i. e. a short method for) annihilating one branch of the legislature.”
And it remains infallibly true, when once the Representatives of a people give up this priviledge, the government will very soon become arbitrary, i. e. the Governor and Council may then do every thing as they please.
His Excellency asks, “When this distinction is considered, how can this act, right or wrong, be applied to the right of originating taxes, annihilating one branch of the legislature, and making the government arbitrary.” His Excellency, thro’ his whole vindication, seems to speak of the single act of fitting out the sloop, and don’t once mention the establishment made for her, or the payment thereof; much less the two instances of fitting out the ship King George: All which the house had in view, as is manifest by their saying, that, “had this been the first instance, they might not have troubled his Excellency about it.” However, if this was the only instance that ever had happened of such an exertion of the executive power by the Governor and Council, it seems to be very applicable to the right of originating taxes, and to have a tendency to make the Governor and Council of the province arbitrary. If the Governor and Council have a right to draw what money they please out of the treasury, under a notion of discretion which they are to exercise, as executive officers of the government; it follows, that for so much charge as the government incurs by the exercise of this discretionary power, by so much the province is taxed by the Governor and Council, without any privity or consent of the house; so much charge then as is incurred by this discretionary power, the house cannot be said to originate. Their right of originating taxes therefore is so far taken away; their power as to this ceasing and coming to nothing, by the Governor and Council exercising it themselves, without the house, may be said to be annihilated. And when the power and priviledge of any branch of the legislature ceases, is taken away and annihilated, then the government is so far arbitrary. The house are so modest as only to say, “that in such a case it will soon become arbitrary.”
Can any man be so unreasonable as to contend that the province is not as much taxed by the Governor and Council’s paying for this sloop out of the money already raised, as if the house had voted it? What is the difference? The people pay the reckoning whether the Governor and Council take upon them to arm vessels out of money raised for other purposes, or the house vote to raise money for arming vessels. When the money is gone out of the treasury for arming vessels, the debts of the province contracted by the three branches of the legislature must nevertheless be paid, and other monies must be levied instead of those taken away by the Governor and Council. And as according to his Excellency’s distinction, there is no limitation of the discretionary expence, so long as the good of the whole, in the opinion of the Governor and
Council shall require it; they may spend every farthing in the treasury, and for what they please. Suppose his Excellency should judge it expedient and absolutely necessary upon the apprehension of some imminent and immediate danger (of which he is in fact absolutely by the charter the sole judge) to march all the militia to the frontiers. This he can do without even the advice of the Council. Suppose the Council, tho’ not consulted, as they need not be, as to the utility of the march, should place such absolute confidence in his Excellency’s wisdom as to sign a warrant for drawing every farthing out of the treasury for the paying and subsisting this armament. Could not as much be said for all this, as is said for fitting out the sloop?
The House of Representatives, should they presume to remonstrate, might with the same propriety be given to understand that “there was not time to ca
ll them together”, that “the danger was immediate and imminent, and in such a case there is no 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.” Furthermore, “this was an act the Governor and Council had a right to do:” “It is a legal and constitutional exercise of the powers vested in them”. “It is an exertion of the executive power of the government, distinct from the legislative.” Nay let us go but one step further, and I think the reasoning will be compleat on the side of his Excellency, or on the side of the House. All things are possible, and when his Excellency and the Council we are now blessed with, are taken from us, we may have a Governor and Council, that after they have given out orders to array and march the militia, and by warrant drawn all the money out of the treasury, may alter their minds as to the imminent danger, lay by the expedition, but instead of replacing the money in the treasury, divide and pocket it among themselves.
The reader no doubt starts at such a supposition, ‘tis only a bare possibility as stated. The House might possibly remonstrate in such a case. But I hold that upon the principles advanced by his Excellency, it would be wrong in them so to do, and that it ought to be taken for a satisfactory answer, That “if it were wrong and ill advised in the Governor and Council (thus to convert all the treasure of the province to their own use, which they might not mean to admit) yet it would amount to no more than a very improper application of the publick money, by those who had lawful authority to apply such money to the publick purposes.”
“When this distinction is considered, how could such an act, whether right or wrong, be applied to the right of originating taxes, annihilating one branch of the legislature, and making the government arbitrary.” Perhaps such future Governor not understanding law distinctions so well as his Excellency our present Governor, might expresly add, and so good Messieurs Representatives you have nothing to do but to supply the treasury, again, tax the many headed monster once more, and when you have done it, the first moment I think fit I’ll draw it all out again, under colour of some sudden imminent danger; and if you don’t like it, you may e’en go h-g yourselves, as they at least most certainly would richly deserve who should tamely submit
to such usage.
To conclude. Would all plantation Governors reflect upon the nature of a free government, and the principles of the British constitution, as now happily established, and practice upon those principles, instead (as most of them do) of spending their whole time in extending the prerogative beyond all bounds; they would serve the King their master much better, and make the people under their care infinitely happier.
Strange it is, that when King’s and many of her mighty men have fallen in their attempts upon the liberties of the people of Great Britain, that plantation Governor’s don’t all consider the Act of 13th of George the second, Chapter vii. which is a plain declaration of the British parliament, that the subjects in the colonies are entitled to all the privileges of the people of Great Britain. By this act of parliament even Foreigners having lived seven years in any of the British colonies, are deemed natives, on taking the oaths of allegiance, &c. and are declared by said act to be his Majesty’s natural born subjects of the kingdom of Great Britain, to all intents, constructions and purposes, as if any or every of them had been, or were born within the kingdom. The reasons given for this naturalization of foreigners, in the preamble of the act are, that “the increase of the people is the means of advancing the wealth and strength of any nation or country, and that many foreigners and strangers, from the lenity of our government, the purity of our religion, the benefit of our laws, the advantages of our trade, and the security of our property, might be induced to come and settle in some of his Majesty’s colonies in America, if they were made partakers of the advantages and priviledges which the natural born subjects of this realm do there enjoy.” Nor is any new priviledge given by this act to the natives of the colonies, it is meerly as to them a declaration of what they are intitled to by the common law, by their several charters, by the law of nature and nations, and by the law of God, as might be shown at large, had I time or room.
All settled attempts therefore, against the liberty of the subject, in any of the plantations, must and in the ruin of the Governor who makes them; at least they will render his administration as uneasy to himself, as unhappy for the people. It is therefore the indispensable duty of everyone, and will be the sincere endeavour of every honest man, to promote the utmost harmony between the three branches of the legislature, that they may be a mutual support to each other, and the ornament, defence and glory of the people Providence has committed to their care.
I am convinced that if his Excellency will in all cases take the advice of the general assembly, (which however contemptably some may affect to speak of it, is the great council of this province, as the British parliament is of the kingdom) that his administration will be crowned with all the success he can desire. But if instead of this, the advice of half a dozen or half a score, who among their fellow citizens may be chiefly distinguished by their avarice, ignorance, pride or insolence, should at any time obtain too much weight at court, the consequences will be very unfortunate on all sides.
Had the writer of these sheets any thing to ask or fear from his Excellency, for himself, a very slender modern politician would quickly perceive the incompatability of this performance with a court interest. That he has done every thing he could in his small sphere to make his Excellency’s administration prosperous to him and happy for the people, abundant proofs have been given; and they will one day be convincing to his Excellency. He has never opposed his Excellency in any thing but what he would have opposed his own Father in. And he takes this opportunity publickly to declare, that in all his legal and constitutional measures, his Excellency shall find him a fast tho’ humble friend and servant: But the Liberty of his country, and the Rights of mankind, he will ever vindicate to the utmost of his capacity and power.
FINIS.
ERRATA.
Page 12. Line 6. for Dec. 1761. read August 1762. Page 20. line 5 from bottom, for inviduous read invidious. The candid Reader is desired to correct any others with his Pen.
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All anonymous Reflections upon this Performance, will be treated with neglect. But if the writer is wrong in the Principles advanced, and any Gentleman will condescend to refute them, and give his Name to the Public, as Truth only is sought after, the Obligation to the Discoverer shall be gratefully acknowledged.
The Rights of the British Colonies Asserted and Proved (1764)
INTRODUCTION
OF THE ORIGIN OF GOVERNMENT
The origin of government has in all ages no less perplexed the heads of lawyers and politicians, than the origin of evil has embarrassed divines and philosophers: And ‘tis probable the world may receive a satisfactory solution on both those points of enquiry at the same time.
The various opinions on the origin of government have been reduced to four. 1. That dominion is founded in Grace. 2. On force or meer power. 3. On compact. 4. On property.
The first of these opinions is so absurd, and the world has paid so very dear for embracing it, especially under the administration of the roman pontiffs, that mankind seem at this day to be in a great measure cured of their madness in this particular; and the notion is pretty generally exploded, and hiss’d off the stage.
To those who lay the foundation of government in force and meer brutal power, it is objected; that, their system destroys all distinction between right and wrong; that it overturns all morality, and leaves it to every man to do what is right in his own eyes; that it leads directly to scepticism, and ends in atheism. When a man’s will and pleasure is his only rule and guide, what safety can there be either for him or against him, but in the point of a sword?
On the other hand the gentlemen in favor of the original compact have been often told that their system is chimerical and unsupported by rea
son or experience. Questions like the following have been frequently asked them, and may be again.
“When and where was the original compact for introducing government into any society, or for creating a society, made? Who were present and parties to such compact? Who acted for infants and women, or who appointed guardians for them? Had these guardians power to bind both infants and women during life, and their posterity after them? Is it in nature or reason that a guardian should by his own act perpetuate his power over his ward, and bind him and his posterity in chains? Is not every man born as free by nature as his father? Has he not the same natural right to think and act and contract for himself? Is it possible for a man to have a natural right to make a slave of himself or of his posterity? Can a father supersede the laws of nature? What man is or ever was born free, if every man is not? What will there be to distinguish the next generation of men from their forefathers, that they should not have the same right to make original compacts as their ancestors had? If every man has such right, may there not be as many original compacts as there are men and women born or to be born? Are not women born as free as men? Would it not be infamous to assert that the ladies are all slaves by nature? If every man and woman born or to be born has, and will have, a right to be consulted, and must accede to the original compact before they can with any kind of justice be said to be bound by it, will not the compact be ever forming and never finished, ever making but never done? Can it with propriety be called a compact original or derivative, that is ever in treaty but never concluded?”