A vindication of the conduct of the House of Representatives of the province of the Massachusetts-Bay: more particularly, in the last session of the General Assembly.
Otis, James, 1725-1783.
Page  [unnumbered]

A VINDICATION, &c.

_A Quorum of the house of representatives of the Province of the Massachusetts-Bay, being met, on the 8th of Sept. A.D. 1762. according to prorogation, infor|med his Excellency the Governour by a committee chosen for that purpose, that they were ready to proceed to business. The commit|tee returned that they had delivered the Message. Mr. Secretary came down soon after with a message from his Excellency, directing the attendance of the House in the council chamber. Mr. Speaker with the House immediately went up; when his Excellency was pleased to make the following Speech; of which Mr. Speaker obtained a Copy, and then with the house returned to their own Chamber.

His Excellency's speech is as follows. Viz.

Gentlemen of the Council, and Gentlemen of the House of Representatives,

I HAVE been always desirous to make your At|tendance in this General Court as unexpensive to your Constituents and as convenient to yourselves as the Nature and Incidents of the public Business will allow. But, as, whilst the War continues, this Province, however happy in the Operations being re|moved Page  6 at a Distance, must expect to bear some Share of the Trouble and Expence of it: It will some|times unavoidably happen that I must be obliged to ca•• you together at an unseasonable Time.

I HAVE now to lay before you a Requisition of His Excellency Sir JEFFERY AMHERST, who, observ|ing that the great and important Services on which His Majesty's Regular Troops are now employed, and the Uncertainty of their Return, render it abso|lutely necessary, that Provision should be made in Time for garrisoning the several Posts on this Con|tinent during the Winter, desires that you would pro|vide for continuing in Pay the same Number of Troops that remained during last Winter; that is, Six Captains, Thirteen Subalterns, and Five Hund|red and Seventy Two Privates, amounting in the whole to Five Hundred and ninety one Men.

I MUST observe to you that the Necessity of this Request arises from the present vigorous Exertion in the West-Indies; which promises effectually to humble the Pride of our Enemies, and pave the Way to Peace. As this glorious Expedition cannot but have your entire Approbation, I doubt not but you will readily embrace this Opportunity to give a pub|lic Testimony of it.

THE French Invasion of Newfoundland must give you great Concern upon Account of the National Loss which the Interruption of the Fishery there must have occasioned, although this Province will not, in its own particular, greatly suffer thereby. But I am persuaded that the Reign of the French in those Parts is by this Time near over; and I flatter my|self that this Government will have some Share in the Honour of putting an End to it.

Gentlemen of the House of Representatives,

THE great Alarm which spread itself over the Country upon the French getting Possession of a strong Post in Newfoundland, obliged me with the Page  7 Advice of Council to take some cautionary Steps which have been attended with Expence. But as these Measures were advised with an apparent Expe|diency, and have been conducted in the most frugal Manner, I doubt not but what has been done will have your Approbation. I shall inform you of the Occasion of these Expences, and order the Accounts thereof to be laid before you.

Gentlemen of the Council, and Gentlemen of the House of Representatives.

As I have called you together at this Time with Reluctance, so I shall be desirous to dismiss you, as soon as the public Business shall have had due Con|sideration. This, I apprehend, will take up not many Days; after which I shall be glad to restore you to your several Engagements at your own Homes with as little Loss of Time as may be.

FRA. BERNARD.

Council-Chamber,Sept. 8, 1762.

This speech (with General Amherst's Letter therein referred to) being read, the Consideration thereof was appointed for the next morning at nine of the clock.

September the 9th, the house agreable to the order of the day, entered into the Consideration of his Excel|lency's speech.

In the course of the debate the following speech was made, as nearly as can be recollected by memory;

Mr. Speaker,

"This Province has upon all occasions been distin|guished by its loyalty and readiness to contribute its most strenuous efforts for his majesty's service. I hope this spirit will ever remain as an indelible Characteristick of this People. Every thing valuable is now at stake. Our most Gracious Sovereign, and his royal Predecessor, of blessed memory, have for some years been engaged in a Page  8 bloody and expensive, but most just and necessary War, with the powerful Enemies of their Persons, Crown and Dignity; and consequently of all our invaluable civil and religious Rights and Priviledges. The Al|mighty has declared the justice of this War, by giving us the most astonishing series of Victories and Triumphs recorded in ancient or modern story. From these Suc|cesses we had reason to hope that the War would have ended last year in a glorious peace. Our King and Father has condescended to tell us that his Endeavours for that purpose were frustrated by Gallic Chicanery and Perfidy. The King of Spain has been prevailed upon to break his Neutrality, to forsake his alliance with Great Britain, to turn a deaf Ear to the Interest and Cries of his own Subjects, and to attach himself to the Party of France and of Hell. But Heaven still smiles upon his Majesty's Arms. We have within this Hour received undoubted Intelligence of a memorable Vic|tory obtained by Prince Ferdinand of Brunswick; and of the Reduction of the Havannah, the Key of the Spa|nish Treasury. Besides an immense Value in specie we have taken and destroyed one quarter of the Spanish navy. This has been done at a bad Season of the year and in Spite of as Gallant a defence as ever was made of a strong Hold. Mr. Speaker, the Fate of North America, and perhaps ultimately of Great Bri|tain herself depends upon this War.

Our own immediate Interest therefore, as well as the general Cause of our King and Country, requires that we should contribute the last peny, and the last drop of Blood, rather than, that by any backwardness of ours, his Majesty's Measures should be embarrassed; and thereby any of the Enterprizes, that may be plan|ned for the Regular Troops miscarry. Some of these Considerations, I presume, induced the Assembly, upon his Majesty's Requisition, signified last Spring by Lord Egremont so cheerfully and unanimously to raise thirty three Hundred Men for the present Campaign; and upon another Requisition, signified by Sir Jeffery Am|herst,Page  9 to give a handsome bounty for inlisting about nine Hundred more into the regular Service. The Colonies we know, have been often blamed without Cause; and we have had some share of it. Witness the miscarriage of the pretended Expedition against Canada in Queen Anne's Time, just before the infamous Treaty of Utrecht. It is well known by some now living in this Metropolis▪ that every Article, that was to be provided here, was in such readiness, that the Officers, both of the army and navy, expressed the utmost Surprise at it upon their arrival. To some of them no doubt it was a Dis|appointment; for in order to shift the Blame of this shameful affair from themselves they en|deavoured to lay it upon the New-England Colonies. I remember, that by some, who would be thought faith|ful Historians, the miscarriage at Augustin in the last War, has been attributed to the neglect of the Caroli|nians. But it is now notorious to all, th•• the ministry of that Day never intended that any good should come of that Enterprize; no indeed of any other by them set on foot, during the whole War. The Conduct of that War, so far as the ministry were concerned, has been judged to be one continued abuse upon the Sovereign and his People. Thank God, we are fallen into better Times. The King, the ministry, and the People are happily united in a vigorous pursuit of the common good. Sure|ly then if we should discover the least remissness in his Majesty's Service, as we should be truly blame-worthy, we may depend upon having matters represented in the strongest light against us, by those who delight to do us harm.

I am therefore clearly for raising the men, if Gen. Amherst should not inform us, by the return of the next mail, that he shall have no occasion for them. But as his Letter is dated the 4th of August, before even Moore Castle was taken, and since the Reduction of the Havannah▪ a number of the Regulars are returned to New-York it is possible the General may have altered his Page  10 Sentiments, as to the necessity of these Provincials.

Waiting 2 or 3 Days however can't make any odds in this Business, as our Troops are all inlisted to the last of October. Upon the whole Mr. Speaker, I am for a Committee to take the Governor's Speech and the pre|sent Requisition into Consideration, and make report" This being seconded, Mr. Speaker, Mr. Otis, Mr. Tyler, General Winslow, and Mr. Witt, were appointed a Committee to take said Speech and Requisition into Con|sideration, and make report. The Committee waited a few Days for the Return of the Express, but hearing nothing further about the men it was taken for granted that the General expected them. The Committee therefore without debate unanimously reported to the House in favour of raising them at the bounty of Four Pounds each, that is, ten Shillings more than was given in the Spring. This Report was likewise almost unani|mously accepted, and the men are now inlisting.

Here is another Instance of the readiness of this Pro|vince to do every thing in their Power for his Majesty's Service. This Spirit notwithstanding many ungenerous Suggestions to the contrary, has remarkably discovered itself in most if not all the British Colonies during the whole War. This Province has since the year 1754, levied for his Majesty's Service as Soldiers and Seamen, near thirty Thousand mn besides what have been otherwise employed. One year in particular it was said that every fifth man was engaged in one Shape or another. We have raised Sums for the support of this War that the last Generation could hardly have formed any Idea of. We are now deeply in debt, but should think our selves amply rewarded if Canada should be retained.

The House did not ent•• into a particular Considera|tion of the latter part of the Governor's Speech, at this Time; as it is general; and an explanatory message was expected, with particular accounts of all the ex|pences alluded to. Accordingly Sept. the 14th Mr. Secretary came down with the following message, from his Excellency, Viz.

Page  11

Gentlemen of the House of Representatives,

"SOON after the French Invasion of Newfoundland, the Inhabitants of Salem and Marblehead, who were concerned in the Fishery North-West of Nova-Scotia, were alarmed with Advice that a French Privateer was cruising in the Gut of Canso; and petitioned for protec|tion for their Fishing Vessels then employed in those Seas.

AS the King George was then out on a Cruize, and the Massachusetts-Sloop was just returned from Peno|scot, I fitted the latter out in the readiest and most frugal Manner I could. I put on board her twenty-six Pro|vincials, which I had within my Command, and aug|mented her Crew which was established at six Men. to twenty-four; and having compleately armed her. sent her to the Gut of Canso, to the Protection of the Fishery there.

FROM thence she is just now returned, after a Cruize of about a Month; in which she saw no Enemy, although she heard of a French Pirate being in those Seas, and looked after him; and has in some Part an|swered her Purpose, by encouraging the Vessels there to stay to compleat their Fares.

SHE now waits for Orders; and before I disarm her, and reduce her Crew, it may deserve Considera|tion whether it may not be adviseable to keep up her present Complement, 'till the King George is discharged from the Service she is now engaged in; which I refer to your Deliberation."

FRA. BERNARD.

Council-Chamber,Sept. 11, 1762.

A little paper only, accompanied this message, with a short account of the Difference to the Province by the Governor and Council's inlarging the Establishment, which amounted to about Seventy two Pounds. But no notice was taken of the 〈◊〉 and other Bills which must finally swell this account much higher. How|ever it was neither the 〈◊〉, nor the expen•• of it▪ that gave the House s〈…〉, as the Page  12 manner of it; that is, the inlarging an Establishment without the knowledge of the house, and paying it without their privity or consent. The Council minute relating to this Affair stands thus.

"At a General Council held at the Council Cham|ber in Boston upon Monday the 9th Day of Dec. 1761.

Present.

His Excellency the Governor.

Hon. Thomas Hutchison, Esq Lieutenant Governor. Mr. Danforth, Judge Lynde, Brigadier Royal, Capt. Erving, Brigadier Brattle, Mr. Bowdoin, Mr. Han|cock, Mr. Hubbard, Mr. Gray, Mr. Russell, Mr. Flucker, Mr. Ropes.

Upon representation made to his Excellency the Governor from a Number of Persons Inhabitants of the Towns of Salem and Marblehead, for some protection to be afforded to the Fishery, they having received an account of a French Privateer in the Gut of Canso. Advised that his Excellency give orders for fitting out the Sloop-Massachusetts, in order to proceed on a cruize, to the Gut of Canso, and Bay Vert, for the pro|tection of the Fishery, and to continue her said cruise not exceeding one Month; and as his Excellency pro|poses to put on board twenty-six Provincials, and ten men out of the Ship King George, provided she arrives seasonably, towards manning of the said Sloop: Advised that her proper Crew be augmented to twenty-four men, officers included, upon the following Wages, viz. Captain £.5 6 8. per Month, Lieut. £.4 0 0. Master £.4 0 0. Master's mate £.3 6 8. Boat|swain £.3 6 8. Boatswain's-mate £.3 0 0. Gunner £.3 6 8. Gunner's-mate £.3 0 0. per Month, and each Private £.2 13 14. per Month: and that the Commissary General put in Provisions for said Cruize accordingly."

The Protection of the Fishery is undoubtedly a very important object, and the Province at the beginning of the War built a Ship of tweny Guns, and Page  13 a Snow of sixteen-Guns, for the immediate pro|tection of the Trade. I wish the Interests of Com|merce were more attended to by those who have it in their Power to cherish them. The trade in the opinion of some has never received a Benefit from those Vessels equal to the Tax Trade alone has paid for their Sup|port. However if more are wanted▪ when that necessity appears, doubtless the assembly will establish more, in the mean time, no more can be lawfully established at the publick Expence. There has been an Instance or two of the Governor and Council's taking upon them in the re|cess of the Court to fit out the Province Ship, in a very unusual and unconstitutional manner, as appears by the following Extracts from the Council Records.

"11th of September 1760 Present in Council the Governor, Lieutenant Governor, the Honorable Ja|cob Wendell, Samuel Wa••s, Andrew Oliver, John Erving, James Bowdoin, William Brattle, Thomas Hancock, and Thomas Hubbard, Esqr's.

His Excellency having communicated to the board some Intelligence he had received of five Privateers being cruizing off the Southern Provinces in La. 39.28. and asked the advice of the Council with respect to manning the Province Ship King George. Advised that his Excellency give Orders for immediately com|pleating the Ship's Complement of Men, by directing Captain Hallowell to beat up for Volunteers upon the Encouragement of eight Dollars per man for the Cruize over and above the Wages agreable to the Establishment. Advised and Consented that a Warrant be made out to the Treasurer to pay unto Captain Hollowell the Sum of One Hundred and sixty Pounds sixteen Shillings, to pay the Bounty of said Men, he to be accountable."

To the Honour of General Brattle he was single in his Opposition to this Resolution.

"21st of May 1761. In Council,

Present the Governor, Lieutenant Governor, the honorable John Osborne. Jacob Wendell, Andrew Oliver, John Erving, William Brattle, Thomas Han|cock, and Thomas Hubbard▪ Esqr's.

Page  14Whereas Intelligence has been received of two Pri|vateers cruizing off Block-Island which have already taken divers Vessels bound to and from the Colonies, and the Ship King George having no more than thirty men belonging to her, Officers included, and there being no prospect of any further men inlisting upon the present Establishment, and the appropriation for the Service of said Ship being exhausted, and his Excellency having proposed to put fifty men of the new raised Troops on board said Ship to serve for one Cruize only; therefore in order to compleat the Complement of Men; advised that his Excellency give orders to Captain Hallowell to send the Ship down to Nantasket without Delay, and to impress from all inward bound Vessels, coasters and Provincial Vessels excepted; also to inlist Volunteers upon a Bounty of ten Dollars each; provided the money can be procured; and for that Purpose it is fur|ther advised that a Warrant issue upon the Treasurer for seven Hundred Dollars, to be paid out of such Sums as shall be subscribed by any Merchants or other persons, for the above services, upon the credit of a Re|imbursement to be made by* the General Court at their next Session."

There had been some other Proceedings that were very much disrelished by former Houses, e. g. In three Days after the Heirs of Lieutenant Governor Phipps had received a Denial from the House to bear the Expence of his Honor's Funeral, the Governor and Coun|cil paid it. Some other extraordinary accounts had also been allowed contrary to the known and express Sense of the House. All these matters together alarmed the pre|sent House, and they thought it high time to remonstrate. Accordingly when the Governor's Message relating to the Sloop Massachusetts was read, (upon a motion made and seconded) it was ordered as an Instruction to the Committee appointed to answer it, to remonstrate against the Governor and Council's making and increasing Esta|blishments without the Consent of the House. Tho' Page  15 no Notice is taken of this Instruction in the printed Votes of the House. The Journal stands thus, "Read and Ordered, that Mr. Otis, Mr. Tyler, Captain Cheever, Col. Clap and Mr. Witt, take said message under consideration, and report an answer thereto."

Sept. the 15th, The committee reported the follow|ing answer and Remonstrance, Viz.

May it please your Excellency,

"The House have duly attended to your Excellen|cy's message of the 11th, Instant, relating to the Massa|chusetts Sloop, and are humbly of opinion that there is not the least necessity for keeping up her present com|plement of men, and therefore desire that your Excel|lency would be pleased to reduce them to six, the old establishment made for said Sloop by the General Court.

"Justice to our selves, and to our constituents ob|lige us to remonstrate against the method of making or increasing establishments by the Governor and council.

"It is in effect taking from the house their most darling priviledge, the right of originating all Taxes.

"It is in short annihilating one branch of the legisla|ture. And when once the Representatives of a people give up this Priviledge, the Government will very soon become arbitrary.

"No Necessity threfore can be sufficient to justify a house of Representatives in giving up such a Priviledge; for it would be of little consequence to the people whether they were subject to George or Lewis, the King of Great Britain or the French King, if both were arbitrary, as both would be if both could levy Taxes without Parliament.

"Had this been the first instance of the kind, we might not have troubled your Excellency about it; but lest the matter should grow into precedent; we earnestly beseech your Excellency, as you regard the peace and welfare of the Province, that no measures of this na|ture be taken for the future, let the advice of the coun|cil be what it may."

Which being read, was accepted by a large majority, and soon after sent up and presented to his Excellency Page  16 by Captain Goldthwait, Mr. Otis, Captain Taylor, Mr. Cushing and Mr. Bordman.

The same day the above remonstrance was deli|vered, the Town was alarmed with a report that the House had sent a message to his Excellency reflcting upon his Majesty's person and government▪ and highly derogatory from his crown and dignity, and therein desired that his Excellency would in no case take the advice of his majesty's council. About five of the clock P. M. the same day Mr. Speaker communicated to the house a Letter from the Governor of the follow|ing purport.

"SIR,

I HAVE this morning received a message from the house, which I here inclose, in which the King's name, dignity, and cause, are so improperly treated, that I am obliged to desire you to recommend earnestly to the house, that it may not be entered upon the Mi|nutes in the terms it now stands. For if it should, I am satisfied that you will again and again wish some parts of it were expunged; especially if it should appear, as I doubt not but it will, when I enter upon my vindica|tion, that there is not the least ground for the insinuati|on under colour of which that sacred and well-beloved name is so disrespectfully brought into Question.

Your's, &c. FRA: BERNARD.

September 15th.

To the Honourable Speaker of the House of Representatives."

Upon the reading of this letter, it was moved to insert these words, to wit,

with all due reverence to his Majes|ty's sacred Person and Government, to both which we profess the sincerest attachment and loyalty be it spoken it would be of little importance, &c.
But a certain member crying "Rase them," "Rase them,"*the proposed amendment was dropped, it being obvious, that the remonstrance would be the same in effect, with or without the words excepted against. These dreadful Page  17 words, under which his Excellency had placed a black mark, were accordingly erased and expunged, and the Message returned to the Speaker.

In the course of the debate a new and surprizing doctrine was advanced. We have seen the times when the majority of a council by their words and actions have seemed to think themselves obliged to comply with every Thing proposed by the Chair, and to have no rule of conduct but a Governor's will and pleasure. But now for the first time, it was asserted that the Go|vernor in all cases was obliged to act according to the advice of the council, and consequently would be deemed to have no Judgment of his own.

In order to excuse if not altogether justify the offen|sive Passage, and clear it from ambiguity, I beg leave to premise two or three data.* 1. God made all men Page  18 naturally equal. 2. The ideas of earthly superiority, preheminence and grandeur are educational, at least acquired, not innate. 3. Kings were (and plantation Governor's should be) made for the good of the peo|ple, and not the people for them. 4. No government has a right to make hobby horses, asses and slaves of Page  19 the subject, nature having made sufficient of the two former, for all the lawful purposes of man, from the harmless peasant in the field, to the most refined politi|cian in the cabinet; but none of the last, which in|fallibly proves they are unnecessary. 5. Tho' most governments are de facto arbitrary, and consequently Page  20 the curse and scandal of human nature; yet none are de jure arbitrary. 6. The British constitution of go|vernment as now established in his Majesty's person and family, is the wisest and best in the world. 7. The King of Great-Britain is the best as well as most glo|rious Monarch upon the Globe, and his subjects the happiest in the universe. 8. It is most humbly pre|sumed the King would have all his plantation Gover|nors follow his royal example, in a wise and strict ad|herence to the principles of the British constitution, by which in conjunction with his other royal virtues, he is enabled to reign in the hearts of a brave and ge|nerous, free and loyal people. 9. This is the summit, the ne plus ultra of human glory and felicity. 10. The Page  21 French King is a despotic arbitrary prince, and conse|quently his subjects are very miserable.

Let us now take a more careful review of this passage, which by some out of doors ha been represent|ed as seditious, rebellious and ••••terous. I hope none however will be so wanting to the interests of their coun|try. as to represent the matter in this l〈…〉 the east side of t〈…〉, tho' reent instnces of such a conduct might be quoted, wherein the province has after its m••t strenuo•• eff••ts, during this and other wars, been pinted in all the 〈◊〉 colours that avarice, m〈…〉 the worst pass•••s could su••est.

The house 〈◊〉, that "it would be of little con|seq••nce to the people, whether they were subject to George or Lewis▪ the King of Great-Britain or the French King, if both were arbitrary, as both would be, if both could levy taxes without parliament." Or in the 〈◊〉 words transposed without the least altera|tion of the ••nse.

"It would be of little consequence to the people whether they were subject to George the King of Great Brit•••, or Lewis the French King▪ if both were arbi|trary, as both would be, if both could levy taxes with|out parliament."

The first question that would occur to a philosopher, if any question could be made about it, would be whe|ther the positi•• were true. But truth being of little importance with mot modern politicians, we shall touch lightly upon that topic, and proceed to inquiries of a more interesting nature.

That arbitrary government implies the worst of tem|poral evils, or at least the continual danger of them is certain. That a man would be pretty equally sub|jected to thse 〈◊〉 under every arbitrary government, is clear. That I should die very soon after my head should be ct off▪ whether by a ••bre or a br••d sword, whether cho〈…〉 to ••atify a tyrant by the chris|tian name of T••••, D•• or H••ry is evident. That the name of the tyrant 〈◊〉 be of no more 〈◊〉 to Page  22 save my life than the name of the executioner, needs no Proof. It is therefore manifestly of no importance what a prince's christian name is, if he be arbitrary, any more, indeed, than if he were not arbitrary. So the whole amount of this dangerous proposition may at least in one view be reduced to this, viz. It is of little importance what a King's christian name is. It is in|deed of importance that a King, a Governor, and all other good christians should have a christian name, but whether Edward, Francis or William, is of none, that I can discern. It being a rule to put the most mild and favourable construction upon words that they can possi|bly bear, it will follow that this proposition is a very harmless one, that cannot by any means tend to pre|judice his Majesty's Person, Crown, Dignity or Cause, all which I deem equally sacred with his Excellency.

If this proposition will bear an hundred different constructions, they must all be admitted before any that imports any bad meaning, much more a treasonable one.

It is conceived the house intended nothing disrespect|ful of His Majesty, his Government or Governor, in those words. It would be very injurious to insinuate this of a house that upon all occasions has distinguished itself by a truly loyal spirit, and which spirit possesses at least nine hundred and ninety-nine in a thousand of their constituents throughout the province. One good natured construction at least seems to be implied in the assertion, and that pretty strongly, viz. that in the pre|sent situation of Great Britain and France, it is of vast importance to be a Briton, rather than a Frenchman; as the French King is an arbitrary despotic Prince; but the King of Great Britain is not so de jure, de facto, nor by inclination; a greater difference on this side the Grave cannot be found, than that which subsists between British subjects, and the slaves of tyranny.

Perhaps it may be objected that there is some differ|ence even between arbitrary Princes in this respect at least, that some are more rigorous than others. It is granted, but then let it be remembred, that the life of Page  23 man is as a vapour that soon vanisheth away, and we know not who may come after him, a wise man or a fool▪ tho' the chances before and since Solomon, have ever been in favour of the latter. Therefore it is said of little consequence. Had it been No instead of little, the clause upon the most rigid stricture might have been found barely exceptionable.

Some fine Gentlemen have charged the expression as indelicate. This is a capital impeachment in poli|ticks, and therefore demands our most serious attention. The idea of delicacy in the creed of some politicians, implies that an inferior should at the peril of all that is near and dear to him (i. e. his interest) avoid every the least trifle that can offend his superior. Does my superior want my estate? I must give it him, and that with a good grace, which is appearing, and if possible being really obliged to him that he will condesend to take it. The reason is evident; it might give him some little pain or uneasiness to see me whimpering, much more openly complaining at the loss of a little glittering dirt. I must according to this system not only endea|vour to acquire my self, but impress upon all around me a reverence and passive obedience to the sentiments of my superior, little short of adoration. Is the superior in contemplation a king, I must consider him as God's vicegerent, cloathed with unlimited power, his will the supreme law, and not accountable for his actions, let them be what they may, to any tribunal upon earth. Is the superior a plantation governor? he must be view|ed not only as the most excellent representation of ma|jesty, but as a viceroy in his department, and quad provincial administration, to all intents and purposes vested with all the prerogatives that were ever exercised by the most absolute prince in Great Britain.

The votaries of this sect are all Monopolizers of offi|ces, Peculators, Informers, and generally the Seekers of all kinds. It is better, say they, "to give up any thing, and every thing quietly, than contend with a su|perior, Page  24 who by his prerogative can do, and (as the vul|gar express it) right or wrong, will have whatever he pleases. For you must know, that according to some of the most refined and fashionable systems of mo|dern politics, the ideas of right and wrong, and all the moral virtues, are to be considered only as the vagaries of a weak or distempered imagination in the possessor, and of no use in the world, but for the skilful politician to convert to his own purposes of power and profit.

With these,

The Love of Country is an empty Name,
For Gold they hunger: but n'er thirst for Fame.

It is well known that the least "patriotic spark" un|awares "catched," and discovered, disqualifies a can|didate from all further preferment in this famous and flourishing order of knights errant. It must howe|ver be confessed they are so catholic as to admit all sorts from the knights of the post to a garter and Star; pro|vided they are thoroughly divested of the fear of God, and the love of mankind; and have concentrated all their views in dear self, with them the only

sa|cred and well-beloved name, or thing in the uni|verse.
See Cardinal Richlieu's Political Testament, and the greater Bible of the Sect, Mandeville's Fable of the Bees. Richlieu expresly in solemn earnest, with|out any sarcasm or irony, advises the discarding all ho|nest men from the presence of a prince, and from even the purlieus of a court. According to Mandeville, "The moral virtues are the political offspring which flattery begot upon pride." The most darling princi|ple of the great Apostle of the order, who has done more than any mortal towards diffusing corruption, not only thro' the three kingdoms, but thro' the remotest dominions, is, "that every man has his price, and that if you bid high enough, you are sure of him".

To those who have been taught to bow at the name of a King, with as much ardor and devotion as a papist at the sight of a crucifix, the assertion under examina|mination may appear hrsh; but there is an immense Page  25 difference between the sentiments of a British house of commons remonstrating, 〈◊〉 those of a courtier cringing for a favour. A house of Representatives here at least, bears an equal proportion to a Governor, with that of a house of Commons to the King. There is indeed one difference in favour of a house of Representatives; when a house of Commons address the King. they speak to their Sovereign▪ who is truly the most august Personage upon earth: When a house of Representatives remonstrate to a Governor, they speak to a fellow subject; tho' a superior, who is undoubtedly intitled to decency and respect; but I hardly think to quite so much Reve|rence as his master.

It may not be amiss to observe, that a form of speech may be, in no sort improper, when used arguendo, or for illustration, speaking of the King, which same form might be very harsh, indecent and even ridiculous, if spoken to the King.

The expression under censure has had the approba|tion of divers Gentlemen of sense, who are quite un|prejudiced by any party. They have taken it to imply a compliment rather than any indecent reflection, upon his Majesty's wise and gracious administration. It seems strange therefore that the house should be so suddenly charged by his Excellency with Impropriety, groundless Insinuations, &c.

What cause of so bitter Repentance, again and again, could possibly have taken place, if this clause had been printed in the Journal, I can't imagine. If the case be fairly represented, I guess the province can be in no danger from a house of Representa|tives daring to speak plain English, when they are com|plaining of a grievance. I sincerely believe the house had no disposition to enter into any contest with the Governor or Council. Sure I am that the promoters of this address had no such view. On the contrary, there is the highest reason to presume that the house of Representatives will at all times rejoice in the pros|perity of the Governor and Council, and contribute Page  26 their utmost assistance, in supporting those two branches of the legislature, in all their just rights and prehemi|nence. But the house is and ought to be jealous and tenacious of its own priviledges; these are a sacred deposit intrusted by the people, and the jealousy of them is a godly jealousy.

But to proceed with our narration; on Saturday about a quarter before one of the Clock, Mr. Secre|tary came down with his Excellency's vindication, which is as follows.

"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 pro|per 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 be|f•••mentioned will follow. In this Disquisition I shall not inquie whether any Ne••••y can be sufficient to jus|tify a House of Representatives in giving up the Privi|ledge of originating Taxes; as I do not believe that such a 〈◊〉 was ever des••ed by any Person concerned in the Government, or that any Governor and Council Page  27 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 cer|tainly 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 pro|vided 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 Li|mitation 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 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 F•••tic••; and when the Assembly has met, have received their Thanks for so doing.

Page  28Now 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 Ad|vice that there was a French Privateer or Pirate cruising in those Parts. It has appeared since, that this Alarm was not peculiar to th•• Province: It reached Quebec, from whence an armed Schooner was fitted out to look after this Frenchman. It reched New-York, from whence General AMHERST a••ised 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 hap|pening 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 pos|sible; out of 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 Expence; 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 Trans|action; and surely I may say it deserved a very diffe|rent 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 Page  29 is considered; how can this Act, whether right or wrong, be applied to the Right of originating Taxes, annihilat|ing one Branch of the Legislature and making the Go|vernment 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 frther Argument about it, than just to ob|serve; 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 fo the People, shall be liable to be called to account for Difference of Opinion only, the Government will be very much weakned. 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 committed to Me for the Defence and Protection of the People of this Province, by all lawful and constitutional Means.

FRA. BERNARD."

Province-House,Sept. 18, 1762.

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 de|siring 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 se|conded, for a committee to prepare a Reply to this Page  30 vindication in the recess of the court, and to make report at the next session; this also passed in the affir|mative 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 Ex|cellency, 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 Ex|cellency 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 pre|sume 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 vindi|cation; 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 Char|ter has been waved by former Houses) the onies 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 Re|presentatives, is of very little value. What Represen|tative would plume himself upon the priviledge of origi|nating taxes, if the money could be squandered away at pleasure; which in other words may happen hereaf|ter to be just as the tools and sycophants of power shall Page  31 advise. This power the oe, in the nature and reason of the thing, should 〈◊〉 to be limited, by some usage or cu••om, if not by something more explicit. The words of the Chrter are. "And we do for us, our heirs and successors, gie 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 res|pectively administred 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 terri|tory, and the protection and preservation of the inhabi|tants 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 le|gally take a shilling out of the treasury, let the emer|gency be what it may. It is agreed with his Excellency, that in issuing Money from the treasury, as the charter Page  32 has of late years been construed, the Governor and Council are meer executive officers. They are con|trollers-general of the Treasury, i. e. the treasurer can|not 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 there|fore is a remonstrance, and when that proves ineffec|tual, 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 Coun|cil, 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 sorbid 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 there|from. 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 appro|priate by far the greatest part of the sums raised, yet something is always expresly left for contingencies, and the Governor and Council may 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, inde|pendent of the act. 2. Neither custom nor usage sup|pose that this sum appropriated for contingencies could be applied to the fitting out of men of war, and mak|ing establishments for them; for armed vessels is one express appropriation in our acts, which shws that Page  33 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 contingen|cies but some have drawn for what they deem'd contin|gencies 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, in|list 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 ne|cessity. 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 suprea Lex. Why then did not the Governor and Council fit out fourteen men of war, or at least enough to take four|teen 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 pri|vateers. The Governor and Council doubtless meant well as to the protection of the fishery, and had there been no unjustifiable extension of their power, every one 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 per|haps have borrowed it of the Treasurer upon the same terms, and the priviledges of the House thereby would have been preserve. It would be a very easy thing Page  34 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 Go|vernor's message afterwards to the house of Represen|tatives, and their vote thereupon, which last are as follow.

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 beaing 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 mer|chants. 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 〈◊〉 f••ting out the ship King George, and in fit〈…〉 Mssachusetts

Page  35However, even this method of supplying the trea|sury by the Governor and Council's ordering subscrip|tions 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 〈◊〉 Houses of Representatives, and when the money i 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 prac|tice, 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 cha|rity towards former Governors and Councils, as for his Excellency and the present honourable Coun|cil; 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 at|tempted by a Governor and Council since the revoluti|on. This would be too alarming. The vulgar are apt to be forcibly affected with names and appearances, ra|ther Page  36 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 when|ever called upon, will without murmuring supply the treasury again; they serve the purpose of a very con|venient machine to quiet the people; and the money flows in with greater ease and plenty than if the Gover|nor and Council were, ad libitum, to collect and dissipate the public treasure.

It is observable, that in France and other despotic governments, 'tis often with great difficulty, and some|times 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 ap|pearance 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 re|finement, or, the parliaments were too stupid to be con|vinced, of the utility of such a plan.

His Excellency proceeds, "The business of origi|nating the taxes most certainly belongs to the Represen|tatives of the people; and the business of issuing money out of the treasury, as certainly belongs to the Gover|nor 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 privilege 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 pro•••ce, and the appropriations thereby made; and that the house indeed, had no right to appropriate, bu〈…〉 the burthen of taxes on the people? 〈…〉 his Excellency in the next period says, 〈…〉 all votes and orders (and acts might 〈…〉) for the charge of the government, Page  37 originate in the House of Representatives; and the money for defreying such charge, is issued by the Go|vernor, 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 fur|ther 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 mo|ney without further regard to the house of Representa|tives; 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 Excellen|cy,) that the General Court should provide for every contingency that may happen, unless they were conti+nually sitting; there will sometimes be ca••s i which the Governor & Council is to be justified n •••uing money Page  38 for services not expresly provided f〈…〉eneral Court; of these there are two very 〈…〉 The one is, when a danger arises so im〈…〉ent, that there is no Time for calling toge the mbly. In this I apprehend there is no o〈…〉 of ex|pence, but in proportion to the evil 〈◊〉. For the safety of the people being the supreme law, should at all events be provided for. The other is, where the ex|pence 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 burthensome 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 ex|traordinary, 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 peo|ple 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 na|ture 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 Coun|cil are vested with all the powers of the General Assem|bly. 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 Coun|cil shall have a right to do what they judge "the su|preme 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 qua|tum of the impending evil; for, "the safety of the people being the supreme law, should at all events, and Page  39 by all means (but that of calling an assembly togother) 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 〈◊〉 pretty fair way soon to be) arbitrary; which in plain English means no more than to 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 contin|gencies, great and small. If this sum should be exhaust|ed 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 pre|decessors. Instead of any debate about his salary, three grants have been made in less than two years, amount|ing 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. Page  40 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 〈◊〉, 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 ad|mitting 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 in|fringement of their priviledge, it cannot be produced as a precedent for us, let it be ever so royal a govern|ment. 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 sorts 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 it; 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 pre|sume 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 omit|ted, namely, that the Governor and Council made an establishment; in consequence of which the expence of this fitting out or a great part at least has been paid out of the Treasury, by warrant from the Governor and Coun|cil. There is also a small mistake in his Excellency's Page  41 saying the sloop was then returned. She was expected, but her return was uncertain. Had the sloop been sent and the pay or 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 indu|ced 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 remon|strance 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 ap|propriation 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 par|ties of three in the making.

His Excellency having given us his state of the case in question, proceeds "to apply it to the cen|sure 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 Gover|nor 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, Page  42 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 conse|quence of an application from some Salem and Mar|blehead 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 pow|ers of the Governor and Council to the fact, see whe|ther the conclusions before mentioned will so low." 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 pow|ers of the Governor and Council. His Excellency is undoubtedly as well acquainted with the nature of these powers▪ as "wh•• the priviledges of the peope are, their bo••ds and th•• nat••e." I presume his Excel|lency also has the same thorough knowledge of "what the pri••ledges 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 ba••ier to the priviledges of the people, and whenever those are broken down, the peo|ple's liberties will fall an easy prey.

His Excellency having finished his state of fact▪ pro|ceeds according to the method premised to the third and last 〈◊〉 of discourse, which is, with his Excellency the application; not "of the case in question, to the cen|sure it has met with," tho' the latter words seem to im|port 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 Excel|lency's Page  43 meaning. The application is mental. The conclusions are express. 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 rea|soning, and this dress is very uncourtly. yet all con|clusive 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 frighted 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 defrey|ed 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 〈…〉 facts; therefore the way is clar to follow his Excellency in the rest of his inferences. 2. Inference. "It was a legal and con|stitutional 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 an|swer may be given to that question▪ and probably would have been given, had there been time before the court was prorog••ed; I beg leave to make a few observati|ons upon his Excellency's three last inferences. I have ••rfully examined the Charter, and the laws of this Page  44 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 pro|vince, 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 seam••s 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 expence 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. Hap|py, very happy, would it be for this poor province, if this distinction was more attended to than it ever yet has been. I am heartily rejoiced however, that his Excellency seems here to discountenance and explod the doctrine that some among us have taken great pains to inculcate, viz. that in the recess of the general assem|bly 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 sons of Holland, or eva|porated 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 Page  45 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 impor|tance 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 mo|ney 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 nne else, you are pleased to give it, a pow|er 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 〈◊〉.

If therefore this a•• was wrong and ill-advised, which I think has been abundantly proved, whether his Ex|cellency will be pleased to admit it or not: it ••uld "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 appli|cation 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 Page  46 accountable. But when he has the Governor and Council's warrant, that perhaps will justify▪ or at least, ought to excuse him, be the warran〈◊〉 or wrong; because it would be hard to make him ••••erable for the conduct of his superiors, and to expect him to set himself up as a judge against the Governor and Coun|cil, 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 un|happy a case (if the priviledge of the House of join|ing 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 remon|strte. This method the House have taken in the pre|sent case, rather than at this juncture reclaim their an|cient 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 pub|lick 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 infe|riors. 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. Page  47 "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 Com|mons remonstrating (as they have sometimes done) I believe would be astonished to hear their humble peti|tions to the Throne called "hard words and groundless insinuations, &c. and viewed as calling the King to ac|count. 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 complain|e of▪ are more than a bare misapplication of the pub|••• money; they are what the house called them "a ••thod, (and they might have added a lately devised 〈◊〉, the first instance almost being in the case of the 〈◊〉 King-George, in 1760.) of making and increasing Page  48 establishments by the Governor and Council," in effect taking from the House their most 〈◊〉 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 Repre|sentatives of a people give up this priviledge, the go|vernment will very soon become arbitrary, 〈◊〉 the Go|vernor and Council may then do every thing as they please.

His Excellency asks, "When this distinction is con|sidered, 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 Gover|nor 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 Gover|nor and Council, without any privity or consent of the house; so much charge then as is incurred by this dis|cretionary 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 no|thing, by the Governor and Council exercising it them|selves, without the house, may be said to be annihilated. Page  49 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 diffe|rence? 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 Go|vernor and Council. And as according to his Excellen|cy's distinction. there is no limitation of the discretiona|ry 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 dan|ger (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 〈◊〉 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 call them together", that "the danger was immed••te and immi|nent, Page  50 and in such a case there is no limitation of ex|pence, 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 ex|ercise of the powers vested in them". "It is an ex|ertion 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 appli|cation 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 Go|vernor, might expresly add and so good Messieurs Re|presentatives you have nothing to do but to supply the Page  51 treasury again, tax the many headed monster* once more, and when you have done it, the first moment I think sit 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 re|flect 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 oher migh|ty men have fallen in their attempts upon the liberties of the people of Great Britain▪ that plantation Gover|nor'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 colo|nies are intitled to all the privileges of the people of Great Britain. By this act of parliament even Foreign|ers having lived seven years in any of the British colo|nies, are deemed natives, on taking the oaths of allegi|ance, &c. and are declared by said act to be his Majesty's natural born subjects of the kindom 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 co|lonies in America, if they were made partakers of the Page  52advantages and priviledges which the natural born sub|jects of this realm do there enjoy." Nor is any new priviledge given by this act to the natives of the coonies, 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 aw of God, as might be shown at large, had I time or rom.

All settled attempts therefore, against the libety of the subject, in any of the plantations, must end 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 indispensa|ble duty of every one, and will be the sincere endea|vour of every honest man, to promote the utmost har|mony 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 Provi|dence has committed to their care.

I am convinced that if his Excellency will in al cases take the advice of the general assembly, (which how|ever contemptably some may affect to speak of it, is the great council of this province, as the British par|liament 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, pri•• or in|solence, should at any time obtain too muceight 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 incompa|tability 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 hi Ex|cellency. He has never opposed his Excellency in any Page  53 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 Ex|cellency shall find him a fast tho' humble friend and ser|vant: But the Liberty of his country, and the Rights of mankind, he will ever vindicate to the utmost of his capacity and power.

FINIS.