An Offence of an Heinous Nature and Punishable as an High Misdemeanor

in about Warren

Author: Freeman, a pseudonymous Loyalist

Date: December 28, 1771

I shall now proceed and consider another subject of complaint, The Governor’s receiving a salary from the Crown independent of the people, having first observed that there is not the least reason to suppose that the appointment of this salary was solicited by his Excellency.  One writer, who assumes the name of Mucius Scaevola, says, “That the King by compact with this people may nominate and appoint a Massachusetts Governor but not pay him—That until he stipulates with the people for his support he is no legal Governor but an Usurper—And that any act of assembly in the mean time consented to by him is ipso facto void and consequently not binding upon us”—And concludes—“If the pretended Governor, or Lieutenant Governor, by being independent on us for their support are rendered incapable of compleating acts of Government, it is time we had a legal Governor to preside, or that the pretended Governors, were dismissed and punished as Usurpers, and that the Council, according to the charter, should take upon themselves the government of this province.”—Another writer says,–“That if the King had stipulated in the charter for the pay of the Governor, the stipulation would be ipso facto void.”—A third says,– “That the language of the British Parliaments, when free has been—No supplies until grievances are redressed—If the Commons have at any times withheld their grant for the support of the Governor until he should comply with measures contrary to his instructions, in fact repugnant to the very spirit of the charter, who can blame them? They are in my opinion highly to be commended for making use of a power vested in them or rather reserved by the constitution, and originally intended to check the wanton career of imperious Governors”—As these writers agree in the same general principles, one general answer may serve to shew the inconclusiveness of their reasoning: I shall however reserve to myself the liberty of remarking upon either of them singly as my subject may lead me.

It is agreed, on all hands, that the King has reserved to himself, in the charter, a power appointing a Governor. Let us suppose a people living in a state of nature and increasing; they will soon find it necessary to form some kind of government among them. No man has yet assumed the powers of a Chief Governor; how then shall such an one be appointed? By the suffrages of the body surely; for all power is said to be originally in the people.  And the first magistrate is considered merely as one man appointed by mutual consent to preside over many others.  Is not our charter then, wherein the King reserves to himself a right of appointing a Governor, in this respect ipso facto null and void according to the reasoning of one of these writers, who declares it would be have been so in that respect, had the King reserved to himself a right of paying him?  He must, upon his own principles, the consider this appointment of a Governor as an invasion of the natural rights of mankind and accordingly oppose it.  If he submits to it, he ought in all reason to submit also to the King’s paying his own Appointee.  When the people chose their Governor as under the old charter, it was highly reasonable they should also pay him.  The Governor is, by virtue of the King’s appointment, called, and he in fact is, the King’s servant; and the King is by all rules of true policy, as well as in justice, bound to make such provision for his support, as shall have the surest tendency to promote his Majesty’s service.  If the people will freely and cheerfully ease his Majesty of this expense, he has an undoubted right to permit his servant to take his pay of them.  So long as the King’s service does not suffer by it, there is no harm done.  But if they reserve the grant as a check upon the Governor, or as a lure to divert him from his Master’s service, his Majesty has an undoubted right to prohibit his servant receiving any grant at all from the people.  It has long ago been judged, the Governors receiving occasional gifts from the people had a tendency to give him an undue bias, and he has been accordingly restrained by instruction from receiving such gifts.  A good King is sufficient check upon a bad Governor, and it is much easier for the subject to emancipate himself from the tyranny of a bad Governor, than from the despotism of an arbitrary Prince: Notwithstanding which the British Parliaments, as we shall see presently, keep no such mercenary or illiberal check upon their Sovereign.

What has been said to have been the language of the British Parliaments when free– No supplies until grievances are redressed—could not refer to supplies for the support of the King’s household or the civil list; but to supplies for national services, in which the people’s interest was equally concerned with the honour of the Crown.  In this case, they had an undoubted right to withhold their supplies if they disapproved the measures, or had reason to think their former grants had been misapplied.

The several branches of the royal revenue were once sufficient of themselves to enable our Kings to support the regal dignity.  These have all been gradually resigned by the Crown, and in lieu thereof other grants have been from time to time made to the Sovereign.*  “Every Prince, in the first Parliament after his accession, has be long usage a truly royal addition to his hereditary revenue settled upon him for his life; and has never any occaision to apply to Parliament for supplies but upon some publick necessity of the whole realm.  This restores to him that constitutional independence which at his first accession must be owned to be wanting—His present Majesty having soon after his accession spontaneously signified his consent, that his own hereditary revenues might be so disposed of as might best conduce to the utility and satisfaction of the publick, and having graciously accepted the limited sum of £800,000 per annum for the support of the civil list, (and that also charged with three life annuities to the amount of £77,000) the said hereditary and other revenues are now carried into and made a part of the aggregate fund, and the aggregate fund is charged with the payment of the whole annuity to the Crown of £800,000.”

It is therefore a bold assertion of Mucius Scaevola, “That a Ruler independent of the people, (that is, as he afterwards explains himself,) independent on them for a support is a monster in government, and such an one is Mr. Hutchinson, and such would be George the Third be, if he should be rendered independent of the people of Great Britain.”

Our dread Sovereign George the third is now independent of the people of Great Britain for his support:  The national faith stands pledged for the annual payment of the stipulated sum of £800,000 and cannot be broken without breaking up the credit of the nation, which would in effect dissolve the constitution:  It is not indeed in the power of the two Houses of Parliament to resume their grant without the King’s consent.  I shudder then to think of the consequence of this writer’s assertion, as it respects his Sovereign; yet I will not positively decide upon what may possibly come under a judicial examen.

I leave Mucius to answer for his temerity in proposing the plan for “punishing the Governor and Lieutenant Governor as Usurpers,” and for overturning our provincial constitution; but lest any should be so inconsiderate as to think of carrying it into execution, it may well to remind them of the danger they would incur in the attempt.

Suppose the Governor to be an Usurper, as he would have it, yet Judge Blackstone tells us from Sir Matthew Hale—“That though there be an Usurper of the Crown, yet it is treason for any subject, while the Usurper is in full possession of the Sovereignty, to practice any thing against his Crown and dignity: Wherefore although the true Prince regain the Sovereignty, yet such attempts against the Usurper (unless in defence or aid of the rightful King) have been afterwards punished with death, because of the breach of that temporary allegiance which was due to him as King de facto. And upon this footing, after Edward IV, recovered the Crown which had been detained from his house by the line of Lancaster, treasons committed against Henry VI. Were capitally punished, though Henry had been declared an Usurper by Parliament.”

Although no act of violence be committed yet, in V. Bacon’s abridgement it is asserted—“If any words in writing or print are published which have a direct tendency to alienate the affections of the people from the King, such a publication is an overt-act of compassing or imagining his death, because this will in all probability be the consequence thereof.”

Again, “If a book is published in which it is asserted, that it is high time for the people to take the government into their own hands, and that it is an honourable and conscientious act to cast off their allegiance and put the King to death, this is an overt-act of compassing or imagining his death.”

I do not mean by citing these authorities to insinuate that an offence which by the laws of England is deemed high treason when committed against the King, is the same when committed against his Governor; yet the like offence against the Governor while acting as the King’s Representative and in pursuance of the King’s commission and instructions;  is certainly an offence of an heinous nature and punishable as an high misdemeanor.  Mucius appears to be in a panick about his publication, by his apologists giving out that he may mean some other Mr. Hutchinson, and not Governor Hutchinson: This plea however does not appear to me to be reconcileable to the rules of grammar or common sense.  Let it have its weight if it can avail him.

[signed] Freeman

*Blackstone’s Com. Book i. Ch. 8.

Source: The Censor, a Loyalist newspaper

Commentary: Freeman, a pseudonymous Loyalist writer, refutes Mucius Scaevola’s assertions and describes a rationale for his prosecution.

The Censor, a Boston newspaper sponsored by Loyalist Friends of Government following the demise of John Mein’s paper, tried to gain a readership by filling its columns with commentary upbraiding Mucius Scaevola. The controversy did not find a broad following, nor did The Censor gain advertisers needed for long-term stability. It appeared sporadically and ceased publication altogether by mid-1772.

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