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Gift  of 
Dr.  Robert  E.  Moody 


HARVARD 
HISTORICAL    STUDIES 


PUBLISHED   UNDER   THE   DIRECTION    OF   THE   DEPARTMENT   OF 
HISTORY   AND    GOVERNMENT    FROM   THE   INCOME   OF 


%\)t  ffeenr^  ^IBEarren  'Corre^  ;fnm 


Volume  VII. 


The  Provincial  Governor 


IN 


THE  ENGLISH   COLONIES  OF 
NORTH  AMERICA 


BY 


EVARTS  BOUTELL  GREENE 

PROFESSOR    OF    HISTORY    IN    THE    UNIVERSITY     OF    ILLINOIS 
SOMETIME   HARRIS   FELLOW   OF    HARVARD    UNIVERSITY 


NEW  YORK 
LONGMANS,  GREEN,  AND  CO. 

LONDON    AND    BOMBAY 
1898 


Copyright,  1898, 
By  the  President  and  Fellows  of  Harvard  College. 


University  Press  : 
John  Wilson  and  Son,  Cambridge,  U.S.A. 


(4>L? 


PREFACE. 


This  essay  was  in  its  original  form  presented  as  a 
dissertation  for  the  degree  of  Doctor  of  Philosophy  in 
Harvard  University.  It  has  since  been  revised  and  in 
considerable  part  rewritten.  Though  in  the  process  of 
revision  many  errors  of  fact  and  errors  of  judgment  have 
been  corrected,  there  are  doubtless  many  which  have 
escaped  the  author's  notice,  and  which  remain  to  be 
pointed  out  by  others.  It  is  hoped,  however,  that  the 
conclusions  here  set  forth  may  at  least  serve  to  provoke 
discussion  and  investigation  in  a  comparatively  unworked 
and  exceedingly  important  field  of  research. 

The  title  and  scope  of  the  work  require  some  expla- 
nation. The  term  Provincial  Governor  has  been  chosen 
to  designate  the  chief  executive  of  the  royal  and  proprie- 
tary colonies.  As  will  be  subsequently  explained,  the 
internal  constitution  of  the  proprietary  colony  became 
so  nearly  like  that  of  the  royal  province  that  the  two 
may  with  advantage  be  treated  together.  In  the  pro- 
prietary and  in  the  royal  governor  alike  we  have  the 
representative  of  an  externally  imposed  authority.  The 
elective  governors  of  Rhode  Island  and  Connecticut 
stood  upon  an  essentially  different  footing,  and  do  not 


VI  PREFACE. 

therefore  come  within  the  scope  of  this  work.  Two 
other  important  limitations  must  be  noted.  After  a 
brief  introduction  on  the  beginnings  of  constitutional 
development,  the  field  is  restricted,  in  the  main,  to  the 
period  between  the  Revolution  of  1688  and  the  close  of 
the  last  French  war;  excluding,  therefore,  the  complica- 
tions of  the  revolutionary  era,  and  presenting  a  simple 
view  of  the  normal  working  of  the  provincial  constitu- 
tion. The  field  of  study  is  further  restricted  to  those 
colonies  which  afterwards  became  a  part  of  the  United 
States  of  America,  though  occasional  illustrations  have 
been  drawn  from  the  practice  of  other  British  provinces. 

In  the  appendices  are  included,  first,  a  few  represent- 
ative commissions  and  sets  of  instructions ;  secondly,  a 
list  of  printed  commissions  and  instructions  to  royal 
and  proprietary  governors;  and,  finally,  a  list  of  author- 
ities cited.  In  citing  any  provision  of  the  commissions 
or  instructions,  the  reference  in  the  footnote  is  to  the 
particular  section  or  page  where  that  provision  occurs. 
The  place  in  which  the  document  is  printed  may  then 
be  found  by  reference  to  Appendix  B.  The  commission 
and  instructions  to  Francis  Bernard,  which  are  given  in 
Appendix  A,  have,  so  far  as  possible,  been  cited  in  the 
discussion  of  particular  powers  and  duties  assigned  to 
the  governor.  In  this  way  many  statements  made  in 
the  text  may  be  conveniently  checked  by  reference  to  the 
documentary  material  in  the  appendix. 

It  is  impossible  to  express  adequately  the  author's 
indebtedness  to  all  those  who  have  aided  in  the  suc- 
cessive staores  of  this  work,  and  to  whom  such  measure 


PREFACE.  Vll 


of  success  as  may  have  been  attained  is  very  largely 
due.  The  officers  of  the  Harvard  University  Library 
have  done  much  by  their  courtesy  and  liberal  extension 
of  privileges  to  facilitate  both  the  original  labor  of  in- 
vestigation and  the  subsequent  task  of  verification  and 
revision.  Special  acknowledgments  are  due  to  Mr. 
Philip  A.  Bruce  of  the  Virginia  Magazine  of  History 
and  Biography,  Dr.  Alexander  Brown,  and  Messrs. 
Houghton,  Mifflin  and  Company  for  permission  to  print 
documents  included  in  Appendix  A ;  and  also  to  Miss 
Addie  F.  Rowe,  of  Cambridge,  for  conscientious  and 
intelligent  service  in  preparing  the  manuscript  for  the 
press. 

The  author  desires  finally  to  express  his  deep  sense  of 
obligation  to  his  teachers  and  friends  in  the  historical 
department  of  Harvard  University  —  especially  to  Pro- 
fessor Edward  Channing,  under  whose  guidance  the 
work  has  been  carried  on,  and  Professor  Albert  Bushnell 
Hart,  to  whom  he  has  been  indebted  throughout  for 
kindly  criticism  and  encouragement. 

EVARTS  B.  GREENE. 
Urbana,  September,  1898. 


CONTENTS. 


CHAPTER   L 

Page 
The  Evolution  of  the  Provincial  Government i 

CHAPTER   H. 
The  Evolution  of  the  Provincial  Executive 23 

CHAPTER   HI. 
The  Governor's  Appointment,  Tenure  of  Office,  and  Emol- 
uments  46 

CHAPTER   IV. 

The  Governor  as  the  Agent  of  the  Home  Government  .     .       65 

CHAPTER  V. 
The  Governor's  Council 72 

CHAPTER   VI. 
The  Governor's  Executive  Powers 91 

CHAPTER  Vn. 
The  Governor's  Relation  to  the  Judiciary 133 

CHAPTER   VHI. 
The  Governor's  Power  over  the  Assembly 145 

CHAPTER   IX. 
The  Power  of  the  Assembly  over  the  Governor    .     .     .     .     166 


X  CONTENTS. 

CHAPTER  X. 

Page 

The  Encroachments  of  the  Assembly  upon  the  Executive   .     177 

CHAPTER  XI. 
The  Governor's  Legal  and  Political  Accountability    .     .     .     196 

Conclusion 202 

APPENDICES. 

A.  Representative  Commissions  and  Instructions  :  — 

1.  Commission  to  Sir  Thomas  West,  Lord  La  Warr,  as 

Governor  of  Virginia,  1610 207 

2.  Commission  to  Sir  William  Berkeley  as  Governor  of 

Virginia,  1641 214 

3.  Instructions  to  Sir  William  Berkeley  as  Governor  of 

Virginia   [1641] 219 

4.  Commission  to  Francis  Bernard  as  Governor  of  New 

Jersey,  1758   [Draft] 226 

5.  Instructions  to  Francis  Bernard  as  Governor  of  New 

Jersey,  1758   [Draft] 234 

6.  Commission  to  James  Hamilton  as  Proprietary  Gov- 

ernor of  Pennsylvania,    1759 261 

7.  Commission  to  John  Wentworth  as  Lieutenant-Governor 

of  New  Hampshire,  1 7 1 7 264 

B.  List  of  Printed  Commissions  and  Instructions  to  Royal 

AND  Proprietary  Governors 265 

C.  Authorities  Cited 271 

INDEX 279 


THE  PROVINCIAL  GOVERNOR. 


CHAPTER   I. 

THE   EVOLUTION    OF   THE   PROVINCIAL   GOVERNMENT. 

In  1763  the  royal  government  was  the  predominant  type  in 
the  English  colonies  which  were  later  to  become  the  United 
States  of  America.  Of  the  twelve  colonial  governments,^ 
eight  belonged  to  the  class  of  royal  or  provincial  governments, 
two  were  proprietary  governments,  and  two  were  chartered 
colonies  with  elective  governors.  This  condition  was,  how- 
ever, the  result  of  very  gradual  development,  inasmuch  as  the 
policy  of  direct  control  by  the  crown  was  finally  adopted  only 
after  a  long  period,  during  which  it  was  the  rule  to  intrust  the 
government,  as  well  as  the  soil  of  the  colonies,  to  proprietors 
or  colonizing  companies.  In  no  colony  was  the  system  of 
royal  government  continuous  from  the  beginning.  So,  too, 
the  form  and  the  powers  of  the  colonial  executive  were  not 
fixed  from  the  start,  but  were  adopted  after  various  experiments 
with  other  forms,  and  were  the  result  of  a  gradual  limitation 
of  powers  at  first  vague  and  undefined.  The  first  question  to 
be  considered,  then,  is  as  to  the  steps  by  which  the  royal  gov- 
ernment took  shape  and  became  the  prevailing  form  in  the 
colonies. 

For  the  earliest  indications  of  royal  policy  in  regard  to  the 
government  of  the  colonies,  it  is  necessary  to  go  back  to  the 
sixteenth  century.  In  the  patent  granted  to  Sir  Humphrey 
Gilbert,  in  1578,  the  right  of  government  was  given  to  the 
proprietor    substantially   without    limitation    as    to    internal 

1  Counting  Delaware  with  Pennsylvania  as  a  single  government.  These 
two  colonies  had  separate  legislatures,  but  a  common  executive. 

I 


2      EVOLUTION  OF  THE  PROVINCIAL   GOVERNMENT. 

aJEfairs.^  In  1584,  Sir  Walter  Raleigh  received  a  charter  con- 
ferring similar  rights,  under  which  the  colony  on  Roanoke 
Island  was  organized. ^  In  each  of  these  cases,  the  govern- 
ment of  the  colony  was  left  in  the  hands  of  the  patentee. 

The  first  permanent  English  colony  was  that  of  Virginia, 
founded  in  1607.^  Here  the  king  at  first  retained  considerable 
control.  The  charter  to  the  Virginia  Company  provided  that 
the  governing  council  in  England  should  be  named  by  the 
crown,  and  reserved  to  the  king  the  right  of  making  from  time 
to  time  such  regulations  as  he  saw  fit  for  the  government  of 
the  colony.  In  the  exercise  of  this  reserved  right,  the  king 
issued  in  the  same  year  a  set  of  "Articles,  Instructions,  and 
Orders  "  for  the  government  of  Virginia,  providing  for  a  resi- 
dent council  which  was  to  be  appointed  by  the  superior  council 
at  home.^  By  the  second  charter,  however,  the  king  resigned 
these  important  rights,  leaving  the  governing  council  to  be 
elected  thenceforth  by  the  company,  which  was  now  left  quite 
free  in  the  organization  of  the  government  in  Virginia.^ 

The  period  of  independence  was,  however,  of  short  duration. 
In  various  ways,  which  need  not  be  recited  in  detail  here,  the 
company  incurred  the  ill-will  of  the  king,  a  calamity  which 
was  rendered  still  more  serious  by  internal  dissensions.  The 
dissentients  soon  caused  serious  charges  of  mismanagement  to 
be  brought  against  the  company.  It  is  true  that  these  were 
squarely  met,  and  that  the  people  of  the  colony,  far  from  join- 
ing in  the  attack,  as  it  was  hoped  that  they  might  do,  declared 
in  favor  of  the  existing  government. *5  Still,  the  case  was  pre- 
judged. In  July,  1623,  the  attorney-general  was  directed  to 
inquire  whether  the  conduct  of  the  Virginia  Company  did  not 
furnish  ground  for  annulling  the  charter,  and,  as  might  have 

1  Hazard,  Historical  Collections,  i.  24.  ^  Ibid.,  33. 

8  Charter  in  Poore,  Charters  and  Constitutiofis,  ii.  1890. 

4  Alexander  Brown,  Genesis  of  the  United  States,  i.  65. 

8  Charter  of  1609  in  Poore,  Charters  and  Constitutions,  ii.  1893  seq. 

«  Sainsbury,  Calendar  of  State  Papers,  Colonial  Series,  America  and 
West  Indies,  1574-1660,  pp.  22,  24,  44,  59,  63,  65;  Proceedings  of  the  Vir- 
ginia Company  (Virginia  Historical  Society,  Collections,  New  Series,  vii.- 
viii.),  i.  63,  77  seq.,  ii.  146;  Stith,  History  of  Virginia  (1865),  304;  Chalmers, 
Political  Annals,  6^. 


ROYAL   GOVERNMENT  IN   VIRGINIA.  3 

been  expected,  the  royal  law  officers  gave  the  opinion  desired 
by  the  crown.^  The  king  then  proposed  a  considerable  modi- 
fication of  the  old  charter,  but  the  company  refused  to  make 
the  concession ;  whereupon  a  writ  of  quo  warranto  was  issued 
against  the  company,  and  in  1624  the  charter  was  annulled.^ 

The  policy  of  direct  control  by  the  crown  was  now  announced. 
In  August,  1624,  King  James  formally  assumed  authority  by 
the  issue  of  a  special  commission  to  Sir  Francis  Wyatt  and 
others  as  the  "  governor  and  council  "  of  Virginia.^  In  the 
following  year  Charles  I.  came  to  the  throne,  and  immedi- 
ately issued  a  proclamation  declaring  his  intention  of  main- 
taining a  direct  royal  government,  a  declaration  which  was 
soon  followed  by  a  commission  for  the  government  of  Virginia 
by  a  royal  governor  and  council.^  Efforts  to  secure  a  renewal 
of  the  charter  were  made  without  success.  As  late  as  1642 
the  governor,  council,  and  assembly  found  it  necessary  to  dis- 
avow a  petition  presented  in  their  names  praying  for  the 
restoration  of  the  old  government ;  ^  and  the  king  took  the 
occasion  to  declare  emphatically  his  adherence  to  the  principle 
of  direct  royal  control.  If  the  brief  revolutionary  period  of  the 
commonwealth  be  excepted,  royal  government  in  Virginia  was 
now  permanently  established. 

Elsewhere,  however,  direct  control  by  the  crown  was  not  to 
come  for  half  a  century.^  The  charter  of  1606,  which  organ- 
ized the  London  Company  for  Virginia,  created  also  the 
Plymouth  Company,  which  in  1620  was  reorganized  as  the 
"  Council  for  New  England, "  with  rights  of  government  over 
the  territory  granted  by  the  charter.'^     This  latter  corporation, 

1  Sainsbury,  as  above,  pp.  48,  51. 

2  Jl)id.,  52-54,  63;  Stith,  History  of  Virginia,  304  seq. 
2  Rymer,  Fcedera,  xvii.  618. 

^  Proclamation  for  settling  Virginia,  in  Chalmers,  Political  Aiutah,  126  ; 
Rymer,  Fccdera,  xviii.  72.  Commission  in  Rymer,  Fcedera,  xviii.  311  ;  cf. 
Chalmers,  Political  Annals,  111-112. 

^  Sainsbury,  Calendar  of  State  Papers,  Colonial  Series,  America  and 
West  Indies,   1 574-1660,  pp.  171,  324. 

®  If  we  except  the  provisional  royal  government  in  Maine  (1665-1668). 
See  Winsor,  Narrative  and  Critical  History,  i.  324. 

'  Hazard,  Historical  Collections,  i.  103. 


4       EVOLUTION  OF  THE  PROVINCIAL  GOVERNMENT 

however,  lasted  only  fifteen  years,  surrendering  its  patent  to 
the  crown  in  1635.  The  Council  for  New  England  soon 
granted  large  portions  of  their  territory  to  individuals  or  to 
groups  of  individuals,  and  in  some  cases  the  proprietors 
of  these  sections  succeeded  in  securing  from  the  crown 
rights  of  government  over  the  territory  thus  acquired.^  Two 
of  these  grants  —  that  of  162 1  to  the  Plymouth  Colony, 
and  that  of  1629  to  the  Massachusetts  Bay  Company  —  re- 
sulted in  the  formation  of  more  or  less  permanent  political 
establishments.^ 

The  charter  of  the  Massachusetts  Bay  Company  created  an 
organization  which  was  in  form  very  much  like  that  estab- 
lished by  the  charters  to  the  Virginia  Company  in  1609  and 
1612.^  By  its  provisions  the  governor  and  company  were  em- 
powered to  make  all  necessary  rules  for  the  administration  of 
the  colony,  and  to  govern  either  directly  or  by  a  resident  gov- 
ernor of  their  appointment.  On  the  face  of  the  document,  the 
government  here,  like  that  in  Virginia,  seemed  to  rest  in  the 
hands  of  a  commercial  company  in  England;  and  for  a  short 
time  precisely  this  state  of  things  did  exist.  In  April,  1629, 
at  a  meeting  in  London,  the  company  voted  to  establish  "  an 
absolute  government  at  our  plantation,"  and  in  accordance 
with  this  resolution  chose  John  Endicott  as  governor  and  seven 
others  as  councillors.  For  the  time  being,  this  governor  with 
his  council  was  invested  with  full  powers  of  administration 
in  the  colony.^  The  charter  of  the  Massachusetts  Bay  Com- 
pany, however,  contained  no  clause  restricting  the  seat  of 
government  of  Massachusetts  to  England.  Advantage  was 
taken  of  this  omission  to  transplant  the  principal  seat  of  gov- 
ernment to  the  colony.  In  this  way  the  settlers  of  Massa- 
chusetts, instead  of  being  ruled  by  a  corporation    across   the 

1  Winsor,  Narrative  and  Critical  History,  iii.  295-310 ;  Hutchinson, 
History  of  Massachusetts,  i.  13;  Poore,  Charters  and  Constitutions,  i.  774, 
ii.  1270-1273. 

'^  Massachusetts  Historical  Society,  Collections,  4th  Series,  ii.  156; 
Hazard,  Historical  Collections,  i.  298  (patent  of  1630). 

8  See  Poore,  Charters  and  Constitutions,  i.  932. 

*  Records  of  Massachusetts  Bay,  i.  361. 


NEW  ENGLAND  ELECTIVE   GOVERNMENTS.  5 

water,  became  a  self-governing  community,  and  the  governor 
came  to  be,  not  an  externally  imposed  ruler,  but  the  agent  of 
the  voters.  Already  in  Plymouth  a  self-governing  colony  had 
grown  up  independently  of  any  royal  sanction;  and  these 
republican  models  were  followed  in  the  younger  colonies  of 
New  Eno-land.  Rhode  Island  and  Providence  Plantations, 
Connecticut  and  New  Haven,  existed  for  years  without  any 
legal  recognition.  1  After  the  Restoration,  however,  the  con- 
solidated governments  of  Connecticut  and  Rhode  Island  re- 
spectively received  charters  securing  them  in  the  possession 
of  their  local  liberties. 

There  were,  then,  in  New  England  in  1663,  after  the  issue 
of  the  Connecticut  and  Rhode  Island  charters,  three  elective 
governments  protected  by  royal  charters,  — namely,  Massachu- 
setts, Rhode  Island,  and  Connecticut  Plymouth  had  no  such 
security,  but  she  had  not  as  yet  been  disturbed.  The  royal 
form  had  not  at  that  time  a  foothold  in  New  England.  The 
commission  issued  by  the  parliamentary  council  to  Codding- 
ton  in  1650  for  the  government  of  Rhode  Island  was,  it 
is  true,  an  interesting  anticipation  of  the  future  policy  of 
direct  control  by  the  crown;-  but  Coddington's  attempt  to 
enforce  his  claims  had  proved  a  complete  failure. 

In  the  southern  and  middle  colonies,  founded  during  the 
Stuart  reigns,  the  policy  of  direct  control  which  the  crown 
seemed  to  have  announced  by  its  action  in  Virginia  was 
apparently  abandoned.  In  1632  came  the  charter  of  Maryland; 
in  1663,  the  grant  to  the  proprietors  of  the  Carolinas.  In 
1664,  by  the  grant  to  the  Duke  of  York,  the  conquest  from 
the  Dutch,  New  Netherland,  passed  into  the  hands  of  a  private 

1  For  Rhode  Island,  however,  see  the  parliamentary  patent  of  1644, 
Rhode  Island  Records,  i.  143.  In  New  Hampshire  the  proprietors  were  not 
strong  enough  or  energetic  enough  to  enforce  their  claims.  At  Portsmouth, 
Exeter,  and  Dover  little  independent  communities  grew  up,  each  with  i-ts 
elected  governor  or  "  ruler "  at  its  head,  and  maintained  their  positions 
during  the  short  period  which  elapsed  before  their  absorption  by  Massachu- 
setts. See  A^(?w  Hampshire  Provincial  Papers,  i.  no,  in,  119,  132-134, 
142,  144  ;  Belknap,  History  of  New  Ha77tpshire,  ch.  ii. 

2  Sainsbury,  Calendar  of  State  Papers,  Colonial  Series,  America  and 
West  Indies,  15 74- 1660,  p.  354. 


6      EVOLUTION  OF  THE  PROVINCIAL   GOVERNMENT. 

proprietor;^  and  by  the  Duke's  releases  of  the  same  year  the 
Jerseys  passed  into  the  hands  of  Berkeley  and  Carteret. ^  In 
1 68 1,  on  the  security  of  a  royal  charter,  William  Penn  founded 
the  proprietary  colony  of  Pennsylvania,  though  the  crown  re- 
served the  right  to  declare  void,  within  six  months  after  their 
delivery  in  England,  legislative  acts  of  the  colony  inconsistent 
with  the  supreme  allegiance  due  to  the  crown,  and  reserved  also 
the  right  to  take  appeals  from  judgments  given  in  the  province.^ 

Until  the  year  1685,  royal  governments  had  been  estab- 
lished in  but  two  colonies.  In  Virginia  the  crown  maintained 
its  control  until  1652.  The  colony  was  then  left  largely  to 
itself,  having  for  a  few  years  an  elective  government.  In 
this  period  the  governor  and  council  were  chosen  by  the  as- 
sembly, which  had  become  the  real  source  of  authority  within 
the  colony.*  At  the  Restoration,  however,  the  old  order  was 
re-established  without  a  struggle,  and  from  that  time  to  the 
War  of  Independence  Virginia  had  a  regular  succession  of 
royal  governors.  The  second  royal  government  was  estab- 
lished in  New  Hampshire  by  a  commission  to  John  Cutts  and 
others  as  the  "  president  and  council  "  of  the  province  of  New 
Hampshire,  which  went  into  effect  in  1680.^ 

In  this  brief  sketch  two  general  classes  of  colonial  govern- 
ments which  were  not  under  the  direct  control  of  the  crown 
have  been  distinguished.  First,  there  was  the  proprietary 
form,  in  which  the  governor  was  nominated  by  a  single  man 
or  by  a  group  of  men,  usually  resident  in  England,  who  had 
financial  interests  in  the  colony.  Such  was  the  government 
of  Virginia  before  the  revocation  of  its  charter  in  1624,  and 
such  were  the  later  governments  of  Maryland,  the  Carolinas, 
and  Pennsylvania.  In  the  second  place,  there  was  the  elective 
form,  sometimes  springing  up  independently,  as  in  Plymouth, 
Rhode  Island,  Providence,  Connecticut,  and  New  Haven ;  and 
sometimes  secured  by  royal  charter,  as  was  the  case  in  Massa- 

1  All  these  charters  are  to  be  found  in  Poore,  Charters  and  Consiitutions. 

2  New  Jersey  Documents^  i.  8,  10. 

^  Charter  in  Poore,  Charters  and  Constitutions,  ii.  1509. 

4  Documents  in  Hening,  Statutes,  i.  369  scg.,  and  Appendix. 

5  Commission  in  New  Hampshire  Provincial  Papers,  i.  373. 


ELECTIVE   GOVERNMENT  IN  NEW  JERSEY  7 

chusetts  and  in  the  later  consolidated  governments  of  Connect- 
icut and  Rhode  Island. 

In  a  rough  way,  the  line  of  division  was  geographical.  The 
proprietary  form  never  took  root  in  New  England,  though  it 
played  an  important  part  in  the  colonization  of  the  southern 
and  middle  States.  The  elective  form,  on  the  other  hand, 
which  held  the  field  in  New  England  during  the  first  half- 
century  of  colonization,  was  never  firmly  established  else- 
where, though  there  were  a  few  interesting  experiments  with 
popular  government  in  other  colonies.  Thus  in  Virginia  dur- 
ing the  commonwealth  period  there  was,  as  has  been  seen,  a 
practically  independent  elective  government.^  Some  tendency 
toward  a  more  popular  form  of  administration  also  appears  in 
the  early  history  of  the  Carolinas;^  but  by  far  the  most  in- 
teresting example  of  elective  governments  outside  of  New 
England  is  to  be  found  in  the  history  of  West  Jersey. 

In  1676  the  province  of  New  Jersey  was  divided  into  two 
parts.  East  Jersey  went  to  Sir  George  Carteret,  and  West 
Jersey  to  William  Penn  and  others  in  trust  for  one  Edward 
Byllinge,  who  had  acquired  the  rights  of  John,  Lord  Berkeley, 
one  of  the  two  original  proprietors.^     In  the  following   year 

^  The  House  of  Burgesses  declared,  in  1658,  that  the  governing  power 
resided  in  such  persons  "as  shall  be  impowered  by  the  Burgesses  (the  repre- 
sentatives of  the  people) :  "  Hening,  Statutes,  i.  499-504. 

2  In  1663  the  proprietors  of  the  Carolinas  received  proposals  from  cer- 
tain gentlemen  of  Barbadoes,  who  wished  to  colonize  in  Carolina  on  the 
condition  that  they  might  elect  their  own  governors  and  make  their  own 
laws.  At  about  the  same  time  the  Cape  Fear  Company,  formed  for  the 
purpose  of  sending  settlers  to  Carolina,  wrote  to  the  proprietors,  declaring 
that,  as  the  English  in  New  England  had  enjoyed  the  privilege  of  electing 
their  own  governors,  it  would  be  difficult  to  attract  them  elsewhere  unless 
the  same  privileges  were  granted  {North  Carolina  Records,  i.  36,  39 ;  Hawks, 
History  of  North  Carolina,  ii.  23).  These  representations  seem  to  have 
had  some  influence  upon  the  proprietors ;  for  in  the  same  year  they  issued 
proposals  promising  to  appoint  the  governor  and  council  from  a  list  of 
thirteen  named  by  the  planters  (see  "  Proposealls  to  all  y'  will  plant  in 
Carrolina,"  in  Rivers,  Sketch  of  the  History  of  South  Carolina,  335).  These 
schemes,  however,  never  went  into  operation,  and  the  governors  were  from 
the  start  named  by  the  proprietors. 

^  New  Jersey  Docufnents,  i.  205. 


8      EVOLUTION  OF   THE  PROVINCIAL   GOVERNMENT. 

the  new  Quaker  proprietors  and  freeholders  issued  the  so- 
called  "  Concessions  "  of  West  Jersey,  by  which  all  the  powers 
of  government  were  vested  in  the  assembly  and  a  body  of 
elected  commissioners.^  In  spite  of  these  provisions,  the  pro- 
prietor, Edward  Byllinge,  sent  out  as  his  deputy-governor 
one  Samuel  Jennings ;  whereupon  the  assembly  drew  up  a  new 
set  of  "Fundamentals,"  on  the  acceptance  of  which  by  the  new 
governor  it  agreed  "to  accept  and  receive  him"  as  deputy- 
governor.2  From  1683  to  1685  there  were  annual  elections. 
In  1685,  however,  the  assembly,  "reserving  their  just  rights 
and  privileges,"  acknowledged  the  authority  of  the  proprietor's 
deputy,  John  Skene,  and  the  brief  line  of  elective  governors 
came  to  an  end.^ 

Of  these  two  classes  of  governments  not  under  the  direct 
control  of  the  crown,  the  elective  government  lies  beyond  the 
scope  of  this  work.  The  proprietary  form,  on  the  other  hand, 
approaches  so  nearly  the  prevailing  type  of  royal  government 
that  the  two  groups  may  for  most  purposes  be  classed  to- 
gether. It  will,  therefore,  be  enough  here  to  note  briefly 
the  peculiar  features  of  the  proprietary  system,  those  charac- 
teristics that  distinguish  the  proprietary  governor  from  his 
neighbor  in  the  royal  province. 

In  order  to  understand  the  position  of  the  proprietary  gov- 
ernor, that  of  the  proprietor  himself  as  set  forth  in  the  pro- 
prietary charter  must  first  be  considered.  The  charter  to 
Lord  Baltimore  in  1632  granted  the  territory  of  Maryland, 
with  all  the  rights,  privileges,  and  immunities  within  that 
territory  which  were  enjoyed  by  the  Bishop  of  Durham  within 
the  bishopric  or  county  palatine  of  Durham.  Lord  Baltimore 
and  his  heirs  were  to  hold  this  palatinate  as  "true  and 
absolute  lords  and  proprietaries  .  .  .  saving  always  the  faith 
and  allegiance  and  sovereign  dominion"  due  to  the  crown. 
The  land  was  to  be  held  in  free  and  common  socage,  and  not 

1  A^eiv  Jersey  Docmncjits,  i.  241. 

2  Smith,  History  of  New  Jersey,  126-129;  Learning  and  Spicer,  Cratiis, 
Concessions,  etc.,  423. 

3  Smith,  Histoiy  of  New  Jersey,  155,  190;  Learning  and  Spicer,  Grants, 
Concessiotts,  etc.,  471,  490,  499,  503. 


PROPRIETARY  CHARTERS.  9 

by  knight's  service.  As  the  expression  of  his  vassal  relation 
to  the  crown,  the  proprietor  was  to  make  an  annual  payment 
of  two  Indian  arrows  and  one  fifth  of  the  gold  and  silver  found 
within  the  colony. ^  Similar  language  is  to  be  found  in  the 
Carolina  charter.^  In  spite  of  the  exemption  from  knight's 
service,  the  whole  phraseology  carries  us  back  to  the  days  of 
feudal  society.  The  principle  implied  is  distinctly  feudal, 
namely,  the  association  of  rights  in  the  soil  with  rights  of 
government;  that  is,  the  king  parts  with  a  portion  of  his 
prerogative,  and  exempts  this  particular  piece  of  territory 
from  the  ordinary  jurisdiction,  very  much  as  his  predecessors 
had  done  when  they  created  the  palatinates  of  Lancaster  and 
Durham. 

In  the  proprietary  charters  of  New  York  and  Pennsylvania, 
the  powers  granted  to  the  proprietor  were  subject  to  some 
important  limitations.  In  New  York  the  crown  had  reserved 
to  itself  the  right  to  receive  appeals  from  any  judgments  given 
in  the  province. ^  In  Pennsylvania  there  was  the  additional 
requirement  that  all  acts  passed  by  the  proprietor  and  the 
freemen  should  be  subject  to  the  royal  veto  for  a  limited  time 
after  their  transmission  to  the  crown.*  In  these  charters  there 
is  no  reference  to  the  English  palatinate  as  the  measure  of 
the  proprietor's  powers,  but  the  main  principle  is  the  same  as 
in  the  Maryland  and  Carolina  charters.  In  each  case  were 
created  private  jurisdictions  exempt  wholly  or  in  part  from 
the  ordinary  operation  of  the  royal  sovereignty.  The  proprie- 
tary governor  was,  in  a  sense,  not  even  a  public  officer  at  all, 
but  the  agent  of  a  private  person  or  group  of  persons,  intrusted, 
it  is  true,  with  the  powers  and  duties  of  an  officer  of  State,  but 
charged  also  with  the  defence  and  promotion  of  distinctly 
private  interests.  He  had  at  the  start  scarcely  any  organic 
connection  with  the  royal  governmental  system. 

This  is,  in  essence,  the  difference  between  the  proprietary 

1  Charter  translated  in  Bozman,  History  of  Maryland.,  ii.  9. 

2  Carolina  charters  of  1663  and  1665  in  Poore,  Charters  and  ConstitU' 
tions,  ii.  1382,  1390. 

3  Grant  to  the  Duke  of  York,  Ibid.,  i.  783. 

*  Charter  to  William  Penn,  1C81,  Ibid..,  ii.  1509. 


lO    EVOLUTION  OF  THE  PROVINCIAL   GOVERNMENT. 

governor  and  the  royal  governor.  Individual  governments 
might  have  special  peculiarities,  but  the  only  essential  point 
of  difference  between  the  two  classes  as  a  whole  lay  in  the 
fact  that  in  the  one  the  governor  received  his  authority  from  a 
quasi-feudal  dignitary  or  body  of  proprietors,  while  in  the 
other  he  received  his  authority  directly  from  the  crown.  The 
form  of  his  office  and  the  extent  of  his  powers  were  not  neces- 
sarily altered  by  a  change  from  the  one  relation  to  the  other. 

As  a  matter  of  fact,  however,  the  proprietary  governments 
exhibit  greater  varieties  in  form  than  the  royal  governments, 
inasmuch  as  the  ownership  of  a  colony  offered  peculiar  oppor- 
tunities for  political  experiment.  The  extent  of  these  experi- 
ments varied.  There  were  not  many  of  them  in  Maryland  and 
New  York,  though  in  the  former  colony  some  steps  were  taken 
in  the  direction  of  a  partly  feudal  organization.  In  the  Caro- 
linas,  the  Jerseys,  and  in  Pennsylvania,  however,  there  were 
striking  instances  of  this  kind  of  political  experiment ;  indeed 
each  of  these  colonies  had  an  abundant  crop  of  original,  if  not 
workable,  constitutions.  In  the  Carolinas  there  were,  first, 
the  tentative  propositions  of  1663  looking  toward  a  system  of 
popular  government;!  ^-^en  the  "Concessions"  of  1665,  which 
reserved  to  the  proprietors  the  appointment  of  the  executive, 
but  gave  to  the  assembly  an  unusual  degree  of  control ;  2  and, 
finally,  the  various  editions  of  the  "  Fundamental  Constitutions  " 
from  1669  to  1698,  with  their  cumbrous  machinery  and  formid- 
able terminology;  their  "Palatine's  Court,"  "  Grand  Council," 
"Parliament,"  aristocratic  upper  house,  "landgraves,"  and 
"caciques. "3  Two  of  the  Carolina  proprietors  were  also  pro- 
prietors of  the  Jerseys,  where  the  same  tendencies  appeared  in 
a  similar  set  of  "  Concessions.  "*  In  this  case,  the  division  of 
the  province  between  two  new  sets  of  proprietors  gave  rise  to 
another  set  of  fundamental  documents.  From  the  West  Jersey 
proprietors  came  the  "  Concessions  "  of  West  Jersey,  modified 

1  A^orth  Carolina  Records,  i.  43. 

2  Ibid.,  79  seq. 

3  Poore,  Charters  and  Constitutions,  ii.  1397;  The  Two  Charters  granted 

by  King  Charles  II.,  etc. 

*  Issued  in  1665.     See  New  Jersey  Documents,  i.  28. 


DEFECTS  OF  THE  PROPRIETARY  SYSTEM.  II 

by  the  "  Fundamentals  "  of  the  West  Jersey  assembly,  while 
in  the  eastern  division  there  was  another  elaborate  paper 
constitution. 

The  peculiar  tendency  toward  the  making  of  elaborate  con- 
stitutional documents,  shown  in  the  West  Jersey  "  Concessions  " 
of  William  Penn  and  his  Quaker  associates,  appears  again  in 
the  various  frames  of  government  set  up  in  Pennsylvania.  In 
the  intricate  constitutional  mechanism  of  Penn's  first  "Frame 
of  Government "  for  Pennsylvania,  we  have  a  fair  counterpart 
of  the  "  Fundamental  Constitutions  "  of  Carolina.  In  all  these 
colonies  the  elaborate  machinery  passed  away,  the  paper  con- 
stitutions died  an  early  and  natural  death,  but  the  popular 
tendencies  embodied  in  some  of  the  early  documents  left  their 
impress  on  the  later  constitutional  development. 

The  defects  of  the  proprietary  system  are  not  hard  to  see. 
The  first  of  these  was  inherent  in  the  union  of  the  two  char- 
acters of  governor  and  private  proprietor.  The  proprietor  had 
great  landed  interests  in  the  colony :  he  was  the  landlord, 
whose  financial  interests  often  clashed  with  those  of  his 
tenants.  Out  of  this  situation  arose  the  interminable  quit- 
rent  controversies,  and  later  the  question  as  to  the  taxation  of 
proprietary  lands,  which  proved  so  serious  an  element  of  con- 
flict in  Pennsylvania  and  Maryland.  ^  The  quit-rent  troubles 
were  not,  it  is  true,  confined  to  the  proprietary  colonies.  The 
crown,  like  the  proprietor,  had  financial  interests  at  variance 
with  those  of  the  colonists,  and  the  royal  governor,  like  the 
proprietary  governor,  was  bound  to  become  the  defender  of 
these  interests  against  the  assembly.  In  the  proprietary 
colonies,  however,  such  conflicts  were  embittered  by  a  feeling 
that  the  strife  was  obviously  one  between  public  and  private 
interests.  Then,  too,  many  of  the  proprietors  had  undertaken 
these  enterprises  as  distinctly  commercial  investments,  con- 
sidering that  their  right  of  government  was  only  incidental  to 
their  general  right  of  property,  and,  like  that,  was  to  be  worked 
to  its  full  value.  Consequently  there  was  a  tendency  to  dis- 
pose of  colonial  offices  as  purely  private  property.  In  Penn- 
sylvania this  course  was  checked  by  limiting  closely  the  power 

^  See  below,  p.  13. 


12     EVOLUTION  OF  THE  PROVINCIAL   GOVERNMENT. 

of  appointment ;  ^  but  in  Maryland  there  seems  to  have  been  a 
regular  traffic  in  minor  colonial  offices  nominally  in  the  gift 
of  the  governor.  This  practice  was  perhaps  at  its  height  in 
the  time  of  Governor  Sharpe,  during  the  French  and  Indian 
war.  Many  appointments  were  practically  taken  out  of  his 
hands;  and  offices  were  sold  on  peculiar  terms,  by  which  the 
proprietor's  relatives  and  friends  received  a  certain  share  of 
the  profits.^ 

It  would,  of  course,  be  unjust  to  imply  that  all  of  the  pro- 
prietors were  influenced  by  improper  motives.  The  last  days 
of  the  Virginia  Company,  the  attitude  of  Penn  toward  his 
colony,  and  the  history  of  Maryland  under  some  of  the  earlier 
proprietors  furnish  conclusive  evidence  that  the  possession 
of  proprietary  rights  and  a  reasonable  desire  to  protect  them 
were  not  necessarily  inconsistent  with  some  regard  for  the 
interests  of  the  colonists.  Nevertheless,  the  proprietors  were 
exposed  to  peculiar  temptations,  and  the  system  was  one  which 
could  work  well  only  under  the  most  favorable  conditions. 

As  the  home  government  came  to  exercise  a  closer  super- 
vision over  the  colonies,  especially  after  the  development  of 
parliamentary  control  through  the  navigation  acts,  a  second  ele- 
ment of  difficulty  was  introduced,  namely,  the  conflict  between 
royal  and  proprietary  interests.  In  Pennsylvania,  Maryland, 
the  Carolinas,  and  the  Jerseys,  there  was  often  friction  between 
the  proprietary  governors  and  the  royal  revenue  and  admiralty 
officers,^  —  such,  for  example,  as  that  which  arose  in  1681  in 
Maryland,  where  Lord  Baltimore  was  charged  with  obstruct- 
ing the  collection  of  the  royal  customs,  a  quarrel  which  ended 
in  the  killing  of  one  of  the  royal  officers.*  Edward  Randolph, 
the  most  persistent  upholder  of  the  British  customs  laws,  as- 
serted in  strong  terms  that  the  proprietary  governments  were 
particularly  remiss  in  the  enforcement  of  the  navigation  laws.^ 

1  See  speech  of  Hamilton  in  Vxo\).^,  History  of  Pennsylvania^W.  217- 
218. 

2  Sharpe's  Correspondence,  Maryland  Archives,  vi.  354,  ix.  39-40. 

^  Randolph's  memorial,  1696,  New  Jersey  Doaiments,  ii.  116  seq.     Cf. 
Randolph's  letter  of  1701,  Ibid.,  358  seq. 

*  Maryland  Archives,  v.  274,  286,  305,  428  seq. 
6  Randolph's  memorial,  as  above. 


ROYAL  AND  PROPRIETARY  INTERESTS  OPPOSED.      13 

A  still  more  serious  conflict  of  interests  occurred  during  the 
period  of  the  French  and  Indian  wars  of  the  eighteenth  century. 
The  assemblies  were,  of  course,  frequently  called  upon  for 
supplies;  and  when,  as  in  Pennsylvania  and  Maryland,  they 
passed  supply  bills  which  included  taxes  on  the  estates  of  the 
proprietors,  the  refusal  of  the  latter  to  permit  such  taxes  led 
to  prolonged  and  angry  deadlocks.^  At  such  times  the  posi- 
tion of  the  proprietary  governor  was  peculiarly  difficult,  com- 
pelled, as  he  often  was,  to  choose  between  his  duty  to  the 
crown  and  his  obligations  to  the  proprietor.  The  royal  gov- 
ernor, it  is  true,  was  frequently  called  upon  to  choose  between 
a  refusal  of  supplies  by  the  assembly  and  disobedience  to  his 
instructions;  but  the  proprietary  governor  was  hampered  by 
an  additional  set  of  instructions  based,  not  on  constitutional 
and  political  grounds,  but  often  on  purely  selfish  interests. 
How  energetic  men  chafed  under  such  restraints,  and  how  the 
public  interests  often  suffered,  is  well  illustrated  in  the  corre- 
spondence of  Governor  Sharpe  of  Maryland.  In  1756,  in  the 
crisis  of  the  conflict  with  the  French,  he  wrote  impatiently: 
"  If  my  hands  had  not  been  tied  up  by  such  Instructions  as 
empty  Coffers  seem  to  have  dictated  I  should  many  Months 
ago  have  had  a  Regiment  of  Maryland  Troops  under  my  Com- 
mand &  in  all  probability  have  been  enabled  to  prevent  any 
Incursions  of  Indians  into  this  Province.  "^ 

The  mere  intervention  of  a  third  party  between  the  province 
and  the  crown  seems  to  have  been  felt  as  a  grievance.  This 
was  true  at  least  in  Pennsylvania,  where  the  crown  had 
reserved  to  itself  a  veto  on  legislation,^  and  where  the  pro- 
prietor also  had  the  right  of  assent  or  veto.  There  was  no 
trouble  so  long  as  the  proprietor  was  present ;  but  when  in  his 
absence  he  reserved  the  right  of  rejecting  laws  approved  by  his 
deputy,   there  was  vigorous    opposition.     The  proprietor  was 

1  For  Maryland,  see  Sharpe's  Correspondence,  Maryland  Archh>es,  vols, 
vi.,  ix.  passim,  especially  vi.  384,  424-427.  For  Pennsylvania,  see  Historical 
Review  of  (he  Constitution  and  Government  of  Pennsylvania  (1759),  81- 
84,  232-312,  and  Appendix. 

2  Maryland  Archives,  vi.  399. 

3  Charter  to  William  Pcnn,  1681,  in  Poore,  Charters  and  Cotistiititions, 
ii.  1509. 


14     EVOLUTION  OF  THE  PROVINCIAL   GOVERNMENT. 

finally  obliged  to  yield  on  this  point ;  ^  but  he  retaliated  by 
imposing  limitations  on  the  governor's  power  of  assent  to 
legislation,  clinching  them  by  the  requirement  of  a  bond  for 
the  due  observance  of  all  such  instructions. ^ 

In  Maryland  and  the  Carolinas,  where  the  crown  had  re- 
served no  veto,  there  was  similar  opposition  to  the  exercise 
of  the  proprietary  veto,  inasmuch  as  the  colonists  claimed  that 
the  acts  of  an  agent  bound  his  principal.  In  Maryland  the 
assembly  regarded  it  as  a  serious  grievance  that  there  should 
be  no  one  in  the  province  capable  of  giving  a  final  assent  to 
legislation,  and  in  1681  a  bill  was  passed  by  the  lower  house, 
making  the  governor's  assent  final  in  legislation.  The  bill 
was  thrown  out  by  the  council,  which  defended  the  proprietary 
veto  as  necessary  to  the  security  of  proprietary  rights.  The 
proprietor  agreed,  however,  that  during  his  absence  his  assent 
or  dissent  should  be  published  within  eighteen  months.^  The 
same  view  as  that  held  in  Maryland  was  taken  by  the  assembly 
of  South  Carolina;  and  when  the  proprietary  government  was 
finally  overthrown,  the  proprietor's  right  of  veto  was  cited  as 
one  of  the  grievances  that  justified  revolutionary  action.*  The 
veto  by  the  proprietor  was  not,  it  is  true,  essentially  different 
from  that  by  the  crown  in  the  royal  governments ;  but,  as  the 
charters  gave  the  right  of  legislation  to  the  proprietor  and  the 
freemen,^  it  was  felt  that  the  absence  of  the  proprietor  ought 
not  to  add  a  second  veto. 

1  Opinion  of  Attorney-General  Northey,  1705,  Statutes  at  Large  of 
Pennsylvania  (1896),  ii.  473. 

2  Pennsylvania  Records,  vi.  525  seq. ;  Proud,  History  of  Pennsylvania, 
ii.  177  seq.  See  also  the  decision  of  the  council,  quoted  in  Historical 
Review  of  the  Constitution  and  Government  of  Pennsylvania  (1759).  79: 
"  This  [the  bond]  was  first  submitted  to  by  Keith,  and  has  been  a  Rule  to 
his  Successors,  with  this  Difference,  that  whereas  the  Penalty  exacted  from 
him  was  but  1000/.  Sterl.  it  has  been  since  raised  to  2,  or  3000/."  Cf.  the 
argument,  Ibid.,  78. 

3  Maryland  Archives,  i.  31,  ii.  174,  470,  iii.  50-51,  vii.  152,  160,  182,  508. 

4  Rivers,  Sketch  of  the  History  of  South  Carolina,  433-435  ;  South  Carolina 
Historical  Society,  Collections,  i.  170;  "  Narrative  of  the  Proceedings  of  the 
People  of  South  Carolina,"  in  Carroll,  Historical  Collections,  ii.  169. 

6  In  Maryland,  the  Carolinas,  and  Pennsylvania;  there  was  no  such 
clause  in  the  patent  to  the  Duke  of  York. 


WEAKNESS  OF  THE  PROPRIETARY  GOVERNMENTS.     1 5 

In  addition  to  these  difficulties  of  the  proprietary  system, 
the  proprietors  in  many  cases  proved  their  inability  to  main- 
tain stable  and  efficient  governments.  This  circumstance  was 
strikingly  true  in  the  Carolinas,  where  the  proprietors  seemed 
almost  helpless  to  deal  with  the  turbulent  population.  Edward 
Randolph,  for  whose  partisanship  some  allowance  must  per- 
haps be  made,  wrote  that  North  Carolina  at  the  end  of  the 
seventeenth  century  was  on  the  verge  of  anarchy.  ^  The  people 
of  South  Carolina,  in  their  petition  for  a  royal  government, 
urged  among  other  reasons  for  the  change  the  desire  for  royal 
protection  from  the  Spanish  and  Indian  invasions  which  were 
then  threatening  the  colony.^  A  similar  state  of  things  ex- 
isted in  New  Jersey,  whither  the  crown  was  called  upon  to 
send  governors  capable  of  enforcing  law  and  order. ^ 

Besides  all  these  elements  of  weakness  which  worked  against 
the  proprietary  system,  there  were  other  circumstances  in  the 
situation  which  rendered  the  transition  to  the  royal  government 
peculiarly  easy.  The  various  experiments  in  constitution- 
making  had  for  the  most  part  proved  failures;  and  as  a  result 
there  grew  up  in  the  proprietary  colonies  political  organiza- 
tions very  similar  to  those  in  the  royal  governments.  In  all 
these  colonies  there  was,  for  example,  a  governor  nominated 
by  the  proprietor,  with  a  nominated  council  and  an  elective 
assembly.  Thus  the  only  step  necessary  in  the  transition  from 
proprietary  to  royal  government  was  the  resumption  by  the 
crown  of  the  prerogatives  which  it  had  intrusted  to  the  pro- 
prietor. The  changes  in  the  internal  constitution  of  the  colony 
were  very  slight. 

In  the  last  years  of  the  Stuarts,  the  policy  of  direct  royal 
control  began  to  be  aggressively  pushed.  In  one  case,  that  of 
New  York,  the  change  came  naturally,  without  a  contest ;  for 
when  James,  Duke  of  York,  became  king,   New  York  ceased 

^  Randolph's  memorial,  1696,  A^ew  Jersey  Documents,  ii.  120. 

2  "  Narrative  of  the  Proceedings  of  the  People  of  South  Carolina,"  in 
Carroll,  Historical  Collections,  ii.  192. 

8  Edward  Randolph,  "  Articles  of  High  Crimes:  Misdemeanours  Charged 
upon  the  Governours  in  the  Severall  Proprieties,"  Neiv  Jersey  Documents, 
ii.  358 ;  recommendations  of  the  Lords  of  Trade,  Ibid.,  ii.  420. 


1 6     EVOLUTION  OF  THE  PROVINCIAL   GOVERNMENT. 

to  be  a  proprietary  colony  and  became  a  royal  province.  In 
most  cases,  however,  the  new  policy  included  measures  much 
more  aggressive,  which  took  shape,  now  for  the  first  time,  in 
a  definite  and  determined  attack  upon  the  charters  all  along 
the  line.     The  blow  fell  first  upon  Massachusetts. 

Massachusetts,  almost  from  the  beginning,  had  been  com- 
pelled to  face  attacks,  open  or  secret,  upon  the  charter  of  1629. 
As  early  as  1634,  Gorges  had  urged  the  establishment  of  royal 
governments  in  New  England.  ^  Legal  processes  had  been 
begun  against  the  charter,  and  more  than  once  Massachusetts 
had  stood  on  the  verge  of  a  catastrophe  from  which  she  had 
been  saved  only  by  skilful  diplomacy  and  a  fortunate  combina- 
tion of  circumstances. 2  The  unfriendly  attitude  of  the  crown 
after  the  Restoration  excited  new  apprehensions,  but  for  a  few 
years  the  company  held  its  ground.  At  last,  however,  the 
blow  fell.  In  168 1  the  king  reinforced  his  demands  for  a 
change  in  the  colonial  constitution  by  threatening  to  annul 
the  charter;^  in  1683  a  writ  of  quo  wairanto  was  issued  against 
it ;  *  in  the  next  year  the  case  was  transferred  to  the  Court  of 
Chancery;  and  before  the  year  was  over  the  charter  was 
annulled.^  For  a  time,  however,  the  old  charter  government 
was  allowed  to  go  on,  until  the  new  king,  James  II.,  by  his 
commission  to  Joseph  Dudley,  organized  the  first  royal  gov- 
ernment in  Massachusetts.^  Dudley's  title  was  that  of  presi- 
dent, and  he  was  supported  by  a  council  also  nominated  by  the 
crown.  Besides  Massachusetts  Bay,  the  commission  included 
New  Hampshire,  Maine,  and  the  King's  Province;  and  in  the 
following  year,  1686,  Sir  Edmund  Andros  received  a  new  com- 
mission, which  included  also  the  colony  of  Plymouth." 

1  Sainsbury,  Calendar  of  State  Papers,  Colonial  Series,  America  and 
West  Indies,  1 574-1 660,  pp.  178,  192. 

2  Ibid.,  200,  206,  251,  256;  Winthrop  Papers,  in  Massachusetts  Histori- 
cal Society,  Collections,  4th  Series,  vi.  58 ;  Hutchinson,  History  of  Ulassa- 
chusetts,  i.  Appendix,  442,  460. 

3  Doyle,  English  in  America,  iii.  280. 

*  Records  of  Massachusetts  Bay,  v.  42  r  seq. 

^  Hutchinson,  History  of  Massachusetts,  i.  305-306,  and  notes. 

^  N'eiv  Hampshire  Provincial  Papers,  i.  590. 

'  Force,  Tracts,  iv.  No.  8. 


ATTACKS  ON  THE   CHARTERS.  1 7 

Proceedings  had  already  been  begun  against  other  colonial 
charters.  Rhode  Island  and  Connecticut  were  brought  under 
royal  control,  and  in  1688  Andros  received  a  commission  as 
governor  of  New  England,  which  was  then  defined  so  as  to 
include  New  York  and  the  Jerseys.^  Orders  had  also  been 
issued  for  the  prosecution  of  quo  warranto  writs  against  the 
governments  of  Connecticut,  Rhode  Island,  East  and  West 
Jersey,  Maryland,  Carolina,  and  Delaware. ^  Thus,  within 
two  years  after  the  accession  of  James  II.,  proceedings  had 
been  entered  upon  against  all  the  proprietary  and  charter 
governments,  with  the  exception  of  Pennsylvania.  In  general, 
then,  it  may  be  said  that  the  new  royal  policy  included  two 
things :  first,  the  substitution  of  royal  for  proprietary  and 
charter  governments;  and,  secondly,  a  process  of  consolida- 
tion, as  illustrated  by  Andres's  commission  as  governor  of  the 
greater  New  England. 

The  Revolution  of  1688  put  a  stop  to  these  proceedings;  but 
William  III.  did  not  altogether  abandon  the  policy  of  his 
predecessor.  To  him,  as  the  head  of  the  great  European 
alliance  against  Louis  XIV.,  careful  organization  and  concen- 
tration of  forces  in  all  quarters  must  have  seemed  highly  desir- 
able. The  first  period  of  the  great  conflict  between  England 
and  France  for  the  possession  of  the  North  American  continent 
was  just  beginning,  and  clearly  a  well-organized  system  of 
royal  governments  was  far  better  adapted  to  meet  such  a  test 
than  the  old  aggregation  of  proprietary  and  charter  colonies. 
Moreover,  the  navigation  acts  could  be  better  enforced  by  royal 
governors  than  by  irresponsible  proprietary  agents.  Thus, 
although  Rhode  Island,  Connecticut,  and,  for  a  time,  the 
Jerseys  were  allowed  to  retain  their  independent  governments, 
the  establishment  of  royal  governments  in  Massachusetts  and 
New  York  was  a  substantial  and  permanent  result  of  this  first 
war  upon  the  charters. 

The  positions  of  the  Maryland  and  Pennsylvania  projjrietors 
were  complicated  by  personal  considerations.      Lord  Baltimore 

1  Commission  in  N'ew  York  Doaujienis,  iii.  537. 

2  Order  of  July,  16S5,  Ibid.,  iii.  362.  Order  of  April,  1687,  Maryland 
Archives,  v.  542 ;  Chalmers,  in  Carroll,  Historical  Collections,  ii.  323. 

2 


1 8     EVOLUTION  OF  THE  PROVINCIAL   GOVERNMENT. 

was  a  Roman  Catholic;  and  Penn's  relations  with  James  11. 
were  such  as  to  arouse  suspicion  in  the  minds  of  the  dominant 
party.  In  Maryland,  an  unfortunate  emphasis  was  given  to 
the  religious  element  by  the  rebellion  in  that  colony,  which 
was  conducted  on  ostensibly  anti-Catholic  lines.  ^  At  length, 
in  1689,  the  Committee  of  Trade  and  Plantations  recommended 
that  measures  be  taken  to  bring  the  "proprieties"  of  Carolina, 
Maryland,  and  Pennsylvania  "under  a  nearer  dependence  on 
the  Crown  ";2  and  in  1690  the  attorney-general  was  ordered  to 
proceed  by  scire  facias  against  the  charter  of  Maryland. 

A  new  theory  was  now  formulated  to  justify  royal  inter- 
ference. Chief  Justice  Holt,  being  called  upon  to  give  an 
opinion,  declared  that,  "it  being  in  a  case  of  necessity,"  the 
king  might  appoint  a  governor  in  Maryland,  though  the  pro- 
prietor could  not  be  deprived  of  his  income  from  the  province  ^ 
except  through  forfeiture.  This  theory  was  more  distinctly 
stated  by  the  law  officers  of  the  crown  a  few  years  later  when  the 
solicitor-general  made  a  report  on  the  charters  of  Connecticut 
and  New  Jersey,  giving  his  opinion  "that  notwithstanding  any 
thing  in  the  said  Charters  or  Grants,  there  Majesties  by  virtue 
of  their  Prerogative  and  Soverainty  over  those  Colonies,  which 
is  not  granted  from  the  Crown  to  the  Govf  and  Company,  nor 
to  the  proprietors  by  any  of  the  Charf*  may  appoint  Governors 
for  these  places  with  such  Powers,  and  authorities  for  the  Gov- 
ernment thereof  ...  as  their  Majesties  shall  in  their  great 
wisdom  judge  reasonable."*  A  similar  opinion  was  given  by 
the  crown  law  officers  some  years  afterwards,  upon  complaint 
made  against  the  governments  of  Rhode  Island  and  Connecti- 
cut. They  declared  that  there  was  nothing  in  the  charters 
which  could  "exclude  your  Majesty  (who  has  a  right  to  govern 
all  your  subjects)  from  naming  a  Governor  on  your  Majesty's 
behalf,  for  those  colonies  at  all  times.  "^  This  statement  is 
one  of  great  interest,  asserting  as  it  does  within  the  field  of 
colonial  government  that  right  of  the  crown  to  govern  all  its 
subjects  which  in  England  had  during  the  middle  ages  gradu- 

^  Declaration  in  Maryland  Archives^  viii.  100  seq.,  215  seq. 

2  North  Carolina  Records,  i.  359.  ^  Chalmers,  Opinions,  6^. 

*  New  Jersey  Documents,  ii.  100.  ^  Chalmers,  Opinions,  66. 


THE  KINGS  RIGHT  TO  GOVERN  ALL   SUBJECTS.       1 9 

ally  been  secured  against  the  hostile  forces  of  local  privilege 
and  feudal  anarchy.  It  is  the  recognition  of  this  principle 
which  chiefly  distinguishes  the  modern  State,  whether  it  be 
an  absolute  monarchy  or  a  representative  republic,  from  the 
feudal  organization  of  the  middle  ages. 

It  has  been  very  commonly  thought  that  this  policy  of  secur- 
ing direct  control  by  the  crown  was  inspired  by  the  natural 
hostility  of  a  tyrannical  government  to  the  local  liberties  of 
the  colonies;  but  it  must  ngt  be  forgotten  that,  taking  the 
colonies  as  a  whole,  the  change  was  distinctly  in  the  interest 
of  better  government.  Royal  tyranny  may  have  been  bad 
enough;  but  in  the  long  run  it  was  far  better  than  the  control 
of  private  and,  to  a  large  extent,  irresponsible  proprietors. 
May  it  not  be  said,  too,  that  this  union  in  dependence  upon 
the  crown  worked  in  some  measure  toward  that  sense  of  com- 
mon political  interests  which,  imperfect  as  it  was,  was  yet  the 
indispensable  condition  for  success  in  the  struggle  for  inde- 
pendence, and  paved  the  way  for  the  "more  perfect  union"  of 
the  federal  constitution .-' 

The  doctrine  laid  down  by  Chief  Justice  Holt  was  soon  put 
into  general  operation.  In  Pennsylvania,  Governor  Fletcher 
of  New  York  assumed  control  on  the  authority  of  a  royal  com- 
mission ;  ^  and  although  Penn  succeeded  with  some  difficulty 
in  recovering  his  rights  of  government,  yet  a  precedent  had 
been  set  which  might  be  cited  on  future  occasions.  The  pro- 
ceedings in  Maryland  were  more  serious.  In  1691  the  crown 
issued  a  commission  to  Sir  Lionel  Copley  as  governor  of  Mary- 
land, thus  establishing  a  royal  government,  without  however 
depriving  Lord  Baltimore  of  his  property  rights  in  the  soil.^ 
The  charter  still  stood;  and  finally,  twenty-four  years  later, 
a  Protestant  Lord  Baltimore  was  allowed  to  resume  the  govern- 
ment of  the  province.^  In  the  Jerseys,  the  proprietary  gov- 
ernment had  been  restored  after  the  revolution  of  1688,  but  its 
position  was  by  no  means  secure.  There  was  a  general  feeling 
of  discontent  with  the  proprietary  regime,  and  frequent  peti- 

^  Pennsylvania  Records,  i.  352.  2  Maryland  Archives,  viii.  263. 

3  Ibid.,  vi.  25. 


20     EVOLUTION  OF   THE  PROVINCIAL    GOVERNMENT. 

tions  for  the  appointment  of  a  royal  governor  were  made.-^ 
The  situation  was  further  complicated  by  the  existence  of 
factions  among  the  proprietors. ^  As  early  as  1687  the  pro- 
prietors had  made  propositions  looking  toward  the  surrender 
of  the  government,  but  with  a  reservation  of  their  property 
rights.  2  Finally  terms  of  surrender  were  arranged,  and  in 
1702  New  Jersey  became  a  royal  province.* 

Similar  causes  brought  about  similar  results  in  the  Carolinas. 
In  South  Carolina,  the  oppressive  treatment  of  the  dissenters 
by  a  party  which  received  the  support  of  the  proprietors,  and 
the  proprietors'  veto  of  popular  measures,  combined  to  develop 
the  spirit  of  opposition.  Furthermore,  the  invasions  by  the 
Spaniards  and  Indians  seemed  to  show  the  inability  of  the 
proprietors  to  maintain  an  effective  defence  of  the  province. 
At  length  the  growing  discontent  culminated  in  the  rebellion 
of  1719,  when  the  popular  party  assumed  control  in  the  name 
of  the  king,  and  a  provisional  government  was  chosen  to  serve 
until  the  crown  should  take  final  action.^  The  crown,  on  the 
other  hand,  as  early  as  1706,  had  taken  steps  toward  the  over- 
throw of  the  proprietary  government.  In  1705  the  House  of 
Lords,  after  declaring  null  and  void  certain  acts  against  dis- 
senters, had  urged  the  crown  "to  use  the  most  effectual 
Methods  to  deliver  the  said  Province  from  the  arbitrary  Oppres- 
sions under  which  it  now  lies."  The  Lords  of  Trade  had  then 
recommended  the  institution  of  legal  proceedings  against  the 
charter  in  the  Court  of  Queen's  Bench,  and  the  queen  had 
issued  instructions  to  the  law  officers  of  the  crown,  although 
nothing  came  of  them  at  the  time.^  Finally  the  uprising  of 
1 7 19  gave  the  crown  its  opportunity.  The  regency  in  council 
declared  that  the  proprietors  had  forfeited  their  charter,  and 
ordered  the  attorney-general  to  take  out  a  writ  of  scii^e  facias 

1  See,  for  example,  the  "Address  of  the  Inhabitants  of  West  Jersey," 
Neiu  Jersey  Documents^  ii.  380. 

2  Ibid.,  418.  s  Ibid.,  i.  535-539;  propositions  of  16S8,  Ibid.,  ii.  26. 
•*  Ibid.,  ii.  452. 

5  "  Narrative  of  the  Proceedings  of  the  People  of  South  Carolina,"  in 
Carroll,  Historical  Collections,  ii.  141. 

^  Address  of  the  House  of  Lords,  in  Oldmixon,  British  Einpire  in 
America,  i.  488;  Journals  of  the  House  oj Lords ^  xviii.  1 50-1 51. 


EXTENSION  OF  ROYAL   GOVERNMENT.  21 

against  them.^  The  crown,  without  waiting  for  final  action 
by  the  courts,  then  proceeded  to  exercise  its  authority  in 
South  Carolina  by  the  appointment  of  Francis  Nicholson  as 
governor.  2 

Of  all  the  proprietary  governments,  that  of  North  Carolina 
had  been  the  most  notoriously  inefficient.  In  this  colony  the 
authority  of  the  proprietors  almost  lapsed  at  times;  and  in 
171 1  there  was  practically  a  state  of  war  between  conflicting 
claimants  to  the  government.^  The  proprietary  system,  how- 
ever, dragged  out  a  wretched  existence  until  1729,  when  the 
long  negotiations  between  the  crown  and  the  proprietors  came 
to  a  close,  in  the  final  surrender  of  both  provinces  to  the 
crown.  ^ 

The  surrender  of  North  Carolina  marked  the  last  stage  in 
the  course  begun  by  Charles  11.  At  one  time  or  another  the 
crown  had  set  up  its  own  governors  in  every  one  of  the  pro- 
prietary and  charter  colonies;  and  at  the  end  of  this  period 
of  transition  all  but  four  colonies  had  been  brought  into  the 
class  of  royal  governments.  Of  these,  two,  Pennsylvania  and 
Maryland,  represent  the  proprietary  government,  and  two, 
Rhode  Island  and  Connecticut,  the  charter  government. 
Even  these  four  were  not  altogether  secure  from  attack.  In 
1702  an  act  of  Parliament  was  proposed  for  bringing  the  pro- 
prietary governments  into  closer  dependence  upon  the  crown ; 
but  although  the  proposition  was  supported  by  the  Board  of 
Trade,  it  came  to  nothing.^  Again,  complaints  made  by  Gov- 
ernors Dudley  of  Massachusetts  and  Cornbury  of  New  York 

1  South  Carolina  Historical  Society,  Collections,  i.  172,  256. 

2  Ibid. 

8  Chalmers,  in  Carroll,  Historical  Collections,  ii.  301  seq.  ;  Chalmers, 
Revolt  of  the  American  Colonies,  i,  398  ;  North  Carolina  Records,  i.  779 
seq.,  797,  801  ;  Hawks,  History  of  North  Carolina,  ii.  418. 

*  Act  of  Parliament  completing  the  agreement  with  seven  out  of  eight 
proprietors.  See  North  Carolina  Records,  iii.  32.  Lord  Carteret  retained 
his  proprietary  interest  of  one-eighth  until  1744.  For  details  on  the  sur- 
render of  the  Carolina  charter,  see  McCrady,  South  Carolina  under  the  Pro- 
prietary Government,  chaps,  xxix.,  xxx. 

^  South  Carolina  Historical  Society,  Collectiofis,  i.  220;  Chalmers,  Re- 
volt, i.  306,  342;  North  Carolina  Records,  i.  535  seq.,  552. 


22     EVOLUTION  OF   THE  PROVINCIAL   GOVERNMENT. 

against  the  governments  of  Connecticut  and  Rhode  Island, 
brought  out  the  report  of  the  crown  law  officers  already  referred 
to,  declaring  the  right  of  the  crown  to  "govern"  all  its  sub- 
jects.i  In  171 1  the  adoption  of  a  uniform  plan  of  colonial 
government  was  spoken  of  as  desirable  but  impracticable,  "the 
purchasing  proprietyes  and  takeing  away  of  usurpations  being 
a  work  of  time  and  trouble.  "^  As  late  as  1721  the  Massa- 
chusetts agent  in  London,  Jeremiah  Dummer,  published  his 
"Defence  of  the  New-England  Charters,"  designed  to  meet  an 
impending  attack  on  the  charter  governments ;  and  even  long 
afterward  there  was  an  unsuccessful  attempt  in  Pennsyh^nia 
to  overthrow  the  proprietary  government  of  that  colony.^ 

Those  proprietary  governments  which  were  permitted  to 
continue  were  nevertheless  subjected  to  a  considerable  degree 
of  royal  control.  By  the  navigation  laws  the  colonial  governors 
were  made,  to  a  considerable  extent,  the  administrators  of 
these  trade  regulations;  and  by  the  statute  7  &  8  William 
III.  it  was  provided  that  all  governors  of  plantations  should 
be  approved  by  the  crown.*  Thus  the  proprietary  governor 
himself  became  in  a  measure  a  royal  officer  responsible  to  the 
crown.  It  is  interesting  to  note  that,  in  spite  of  the  policy  of 
direct  royal  control  so  generally  adopted,  in  1732,  three  years 
after  the  surrender  of  the  Carolina  charter,  the  crown  by  its 
charter  to  the  Georgia  trustees  recurred  temporarily  to  the 
old  proprietary  system.  The  charter  of  Georgia  had,  however, 
a  saving  clause,  in  the  provision  that  after  twenty-one  years  the 
government  of  the  colony  was  to  revert  to  the  crown.  Conse- 
quently in  1754,  without  a  contest  and  as  a  matter  of  course, 
Georgia  became  a  royal  province.^ 

*  See  above,  p.  18. 

2  Letter  of  Governor  Hunter,  New  Jersey  Documents,  iv.  138. 

8  Franklin,  Works  (ed.  Bigelow),  iii.  286.  Cf.  Stille,  Life  and  Twies  of 
John  Dickinson,  ch.  iii. 

4  c.  22,  §  xvi.:  Statutes  at  Large,  iii.  613.  These  provisions  apparently 
applied  also  to  the  charter  colonies,  but  they  could  hardly  have  been  en- 
forced upon  an  annually  elected  governor. 

6  Charter  in  Poore,  Charters  and  Constitutions,  i.  369  ;  Chalmers, 
Opinions,  69  seq. 


CHAPTER   II. 

THE   EVOLUTION    OF   THE   PROVINCIAL   EXECUTIVE. 

As  the  colonial  executive  only  gradually  came  under  royal 
control,  so  its  ultimate  form,  that  of  a  single  head  checked  by 
a  nominated  council,  was  also  at  first  undetermined.  In  the 
first  century  of  colonization  there  were  numerous  experiments. 

For  the  study  of  the  executive,  Virginia,  as  the  oldest  of 
the  royal  governments,  again  furnishes  a  convenient  starting 
point.  Under  the  first  charter  the  resident  government  was 
vested  in  a  council  appointed  by  the  superior  council  in  Eng- 
land. ^  This  council  was  to  choose  its  own  president,  to  whom 
certain  minor  functions  were  to  be  intrusted  exclusively;  and 
yet  the  right  of  the  council  to  appoint  and  remove  him  at 
pleasure  made  that  body  the  real  executive,  and  justifies  the 
classification  of  this  early  Virginia  executive  as  of  the  col- 
legiate type.  This  government  proved  unwieldy  and  ineffec- 
tive; in  1609,  therefore,  the  company  received  its  new  charter, 
which  left  it  free  to  choose  its  own  methods  in  the  government 
of  the  colony.'''  As  it  was  evident  that  a  strong  hand  was 
needed,  the  principle  of  having  a  single  head  was  adopted,  and 
Lord  Delaware  was  made  governor,  with  absolute  discretion 
in  the  choice  of  such  councillors  as  he  saw  fit  to  employ.^ 
This  policy,  demanded  perhaps  by  the  exigencies  of  the  time, 
worked  ill  as  a  permanent  system,  inasmuch  as  the  governors 
were  nearly  always  arbitrary  in  their  methods,  and  often 
mercenary  and  unscrupulous.  Moreover,  the  fact  that  as  yet 
the  colony  had  no  popular  assembly  was  a  source  of  especial 

1  Royal  orders  in  Brown,  Genesis  of  the  United  States^  i.  65. 

2  Poore,  Charters  and  Constitutions,  ii.  1893. 

3  Delaware's  commission  in  Brown,  Genesis  of  the  United  States,  i.  375 
seq.,  especially  380. 


24       EVOLUTION  OF  THE  PROVINCIAL  EXECUTIVE, 

danger;  and  there  was  therefore  general  rejoicing  when  the 
governor  was  at  last  "restrained  to  a  Counseil  ioyned  with 
him."^  The  Ordinance  of  1621,  which  was  probably  hardly 
more  than  a  formal  statement  of  the  constitution  actually 
introduced  two  years  before,  established  two  councils,  the  one 
legislative,  the  other  executive.  The  governor,  however, 
seems  to  have  been  little  more  than  the  first  member  of  the 
council.^ 

It  is  hard  to  say  what  changes  took  place  in  the  constitution 
of  the  executive  on  the  introduction  of  the  royal  government, 
if  indeed  there  were  any  real  changes.  The  royal  commissions 
of  1624  and  1625  were  commissions  to  the  governor  and  council, 
without  any  definite  statement  as  to  their  mutual  relations.^ 
It  is  clear,  however,  that  there  was  a  period  of  conflict  between 
two  ideas.  The  governor  contended  for  the  theory  of  a  single 
head,  advised  and  to  a  certain  extent  checked  by  the  council, 
yet  possessing  in  himself  the  real  executive  authority ;  whereas 
the  council  claimed  for  itself  a  larger  share  of  the  executive 
power.*  In  163 1  the  governor  and  council  came  into  direct 
conflict.  Governor  Harvey  complained  that  he  could  do  noth- 
ing but  what  the  council  advised,  and  that  his  power  extended 
no  farther  than  to  a  casting  vote;^  while  from  the  council,  on 
the  other  hand,  there  were  complaints  of  the  overbearing  con- 
duct and  usurpation  of  Harvey.^ 

Constitutional  development  in  Virginia  was  interrupted  by 

1  "A  Declaration  of  the  State  of  the  Colonie,"  June,  1620,  in  Force, 
Tracts^  iii.  No.  5,  p.  6. 

2  Ordinance  in  Hening,  Statutes,  i.  no  ;  instructions  to  Governor  Wyatt, 
Ibid.,  114  seq. 

8  Commission  to  Wyatt,  1624,  in  Rymer,  Fcedera,  xvii.  618  ;  to  Yeardley, 
"  De  Commissione  directa  Georgio  Yardeley  militi  &  aliis,"  Ibid.,  xviii.  311. 

*  Compare,  however,  the  letter  to  Sir  Francis  Wyatt,  1626,  conceding 
that  important  actions  should  be  determined  by  a  majority  of  the  council,  in 
Sainsbury,  Calendar  of  State  Papers,  Colonial  Series,  America  and  West 
Indies,  1 574-1 660,  p.  79. 

5  Letter  of  Governor  Harvey,  1631,  Ibid.,  129.  The  instructions  to 
Berkeley  in  1641  direct  that  he  shall  have  only  a  casting  vote  in  the  coun- 
cil.    See  §  5  of  instructions,  Appendix  A  below. 

^  Mathews  to  Wolstenholme,  1635,  in  Sainsbury,  Calendar  of  State 
Papers,  Colonial  Series,  America  and  West  Indies,  1 574-1660,  p.  208. 


VIRGINIA   AND  MARYLAND.  2$ 

the  civil  war;  but  by  1689  the  governor  was  clearly  separated 
from  the  council  and  possessed  considerable  power  over  it. 
Not  only  had  he  the  right  to  make  provisional  appointments  to 
fill  vacancies  in  the  council,  but  he  might  suspend  members 
for  causes  which,  by  a  later  provision,  were  to  be  communicated 
to  the  home  government.  Moreover,  when  councillors  were 
regularly  appointed  by  the  royal  order,  it  was  usually  on  the 
nomination  of  the  governor.  ^  The  exact  relation  between  the 
governor  and  the  council  continued  to  be  matter  of  contro- 
versy; but  there  was  now  a  rough  definition  of  their  relative 
positions,  showing  a  single  head,  the  governor,  invested  with 
the  central  executive  power,  but  checked  in  its  exercise  by  a 
nominated  council  more  or  less  under  his  influence.^  The 
system  thus  worked  out  in  Virginia  seems  to  have  been  the 
model  for  other  royal  provinces,  and  even  to  have  influenced 
the  proprietary  governments  to  some  extent. 

The  proprietary  government  in  Maryland,  established  soon 
after  the  introduction  of  royal  government  in  Virginia,  adopted 
as  the  form  of  executive  in  the  colony  a  governor  with  an 
advisory  council,  both  appointed  by  the  proprietor.  The 
council  in  Maryland  was  at  first  very  small :  only  three  mem- 
bers were  named  in  Calvert's  commission  of  1637.^  It  is  not 
clear  whether  the  taking  of  advice  was  at  first  compulsory 
upon  the  governor;*  but  the  commissions  of  1644  and  1666 
expressly  stated  that  the  advice  of  the  council  should  be  taken, 
at  least  in  important  matters.^  Though  the  councillors  were 
regularly  appointed  by  the  proprietor,  the  governor  was  some- 
times authorized  to  make  additional  appointments.^ 

1  On  this  subject,  see  Beverly,  History  of  Virginia^  202 ;  Hartwell, 
Blair,  and  Chilton,  Present  State  of  Virginia,  22-24;  Culpeper's  instruc- 
tions, Calendar  of  Virginia  State  Papers,  i.  14;  Howard's  instructions, 
cited  in  D 03-16,  English  in  Afnerica,  i.  352-353. 

2  For  a  fuller  statement  of  the  relation  between  the  governor  and  the 
council,  see  below,  ch.  v. 

3  Bozman,  History  of  Maryland,  ii.  572. 

*  Note  the  clause  "as  he  shall  see  cause,"  in  the  commission  of  1637. 
^  Commission  of  1644  in  Bozman,  History  of  Maryland,  ii.  631  ;  that  of 
1666,  Maryland  Arc/lives,  iii.  542. 

^  In  164S,  the  governor  was  authorized  to  appoint  two  or  three  coun- 


26       EVOLUTION  OF  THE  PROVINCIAL   EXECUTIVE. 

In  1665  the  Carolina  proprietors  issued  a  document  called 
the  "Concessions,"  by  the  provisions  of  which  the  executive 
consisted  of  a  governor  and  a  council  of  from  six  to  twelve 
persons  named  by  the  governor.^  The  executive  power  was 
vested  in  the  governor  and  council,  but  the  governor,  through 
his  right  of  naming  the  councillors,  held  a  position  of  prac- 
tical independence.  This  system  was  soon  superseded  by  the 
elaborate  instrument  known  as  the  "Fundamental  Constitu- 
tions," which  provided  for  an  organization  of  the  proprietors 
themselves,  called  the  "Palatine's  Court,"  the  president  of 
which  was  the  palatine  chosen  by  the  proprietors  from  their 
own  number.  2  This  was  to  be  the  chief  executive  body  of  the 
colony,  though  certain  larger  questions  were  to  be  settled  by 
the  Grand  Council,  consisting  of  the  proprietors  themselves 
and  forty-two  councillors  chosen  by  a  complicated  process  of 
election  in  which  there  was  a  strong  aristocratic  element.^ 
It  is  clear  that  the  collegiate  idea  of  the  executive  was  thus 
carried  to  an  extreme  point.  The  palatine  who  stood  at  the 
apex  of  the  system  was  only  a  prhmts  inter  pares,  and  even 
the  Palatine's  Court  did  not  possess  full  executive  powers, 
since  many  of  these  were  reserved  to  the  Grand  Council. 
Inasmuch  as  this  system  never  became  the  actual  constitution 
of  the  colony,  it  is  idle  to  conjecture  how  it  would  have 
worked,  though  it  may  be  noted  that  some  of  the  formal 
provisions  of  the  "  Fundamental  Constitutions  "  were  observed 
for  a  considerable  time. 

In  the  absence  of  the  palatine  and  his  associate  proprietors, 
the  executive  power  in  the  province  was  vested  in  the  gover- 
nor, who  was  the  proxy  or  deputy  of  the  palatine,  and  the  coun- 
cillors, each  of  whom  was  the  representative  of  some  one  of 

cillors  in  addition  to  those  named  by  the  proprietor.  See  the  commission 
to  Governor  Stone,  in  Bozman,  History  of  Marylatid,  ii.  642  seq.,  especially 
647. 

^  North  Carolina  Records,  i-  79- 

^  Later  succession  was  on  the  basis  of  seniority.  See  §  i  of  the  instruc- 
tions to  Governor  Ludwell,  1 691,  in  Rivers,  Chapter  in  the  Early  History 
of  South  Carolina,  Appendix. 

8  "  Fundamental  Constitutions  "  in  Poore,  Cha?'ters  and  Constitutions, 
ii.  1397. 


THE   CAROLINAS.  27 

the  proprietors.  1  For  a  time,  it  is  true,  the  assembly  was  per- 
mitted to  elect  a  certain  number  of  commoners  to  the  council; 
but  the  proprietors  found  this  practice  unsatisfactory,  and  by 
1 69 1  it  was  abandoned. 2  The  governor  and  the  deputies,  like 
the  Palatine's  Court  which  they  represented,  constituted  in 
theory  a  collective  executive;^  though  the  independent  posi- 
tion of  the  councillors  was  modified  somewhat  by  the  practice 
of  giving  the  governor  blank  deputations,  which  he  might  fill 
out  at  his  discretion.  Appointment  by  the  individual  proprie- 
tors continued,  however,  to  be  the  rule.* 

Finally  a  change  of  some  importance  was  made  in  the  form 
of  the  council,  a  change  in  form  which  implied  also  a  change 
in  theory.  Instead  of  instituting  a  body  consisting  of  the 
personal  representatives  of  eight  proprietors,  the  North  Caro- 
lina instructions  of  1718  organized  a  council  of  ten  members 
besides  the  governor,  "as  the  custom  is  in  his  Majesty's  other 
colonies."^  In  South  Carolina,  similar  action  was  taken  in 
1719.  In  the  latter  colony  the  people  were  inclined  to  empha- 
size the  principle  involved  in  the  change,  and  refused  to  recog- 
nize the  new  constitution  as  valid.  The  discussion  was  closed 
by  the  rebellion  of  the  same  year,  and  the  consequent  establish- 
ment of  royal  government  in  South  Carolina.^ 

In  North  Carolina  there  was  a  controversy,  similar  to  that 
in  Virginia  in  Harvey's  time,  arising  from  the  desire  of  the 
governor  to  acquire  greater  independence  of  the  council. 
Governor  Everard  in  1729  claimed  an  independent  right  of 
nominating  and  removing  public  officers.      Here,  as  in  South 

1  "  Temporary  Laws  "  of  1671,  in  Rivers,  Sketch  of  the  History  of  South 
Carolina^  351. 

2  Address  to  Governor  Sothel,  Ibid.,  426  ;  also  instructions  to  Ludwell, 
1691,  §  10. 

3  Letter  of  the  Earl  of  Shaftesbury,  North  Carolina  Records,  i.  214.  Cf. 
Ludwell's  instructions,  1691. 

*  For  examples,  see  North  Carolina  Records,  i.  346,  ii.  175;  South  Caro- 
lina Historical  Society,  Collections,  i.  iii,  136  ;  Rivers,  Sketch  of  the  His- 
tory of  South  Carolina,  341. 

*  N'orth  Carolina  Records,  ii.  307.    For  later  variations,  see  Ibid.,  454,  516. 
^  South  Carolina  Historical  Society,  Collections,  i.  170;  Carroll,  Histori- 
cal Collections,  ii.  1 58,  169. 


28       EVOLUTION  OF  THE  PROVINCIAL  EXECUTIVE. 

Carolina,  however,  the  controversy  was  closed  by  the  establish- 
ment of  a  royal  government  in  the  colony.^ 

Of  the  Carolina  proprietors,  two,  Berkeley  and  Carteret, 
were  also  proprietors  of  New  Jersey.  The  "  Concessions  "  of 
New  Jersey,  like  those  of  Carolina,  vested  executive  powers 
in  the  governor  and  council  jointly,  but,  on  the  other  hand, 
authorized  the  governor  to  appoint  the  councillors,  though 
the  proprietors  maintained  a  reserved  right  to  appoint  directly 
if  they  saw  fit.^  By  later  instructions  it  was  provided  that 
vacancies  in  the  ofhce  of  either  governor  or  councillor  should 
be  filled  by  vote  of  the  governor  and  council,^  In  1683  the 
new  proprietors  of  East  Jersey  proposed  a  system  styled  the 
"Fundamental  Constitutions,"  which  is  of  some  interest  as 
showing  the  political  theories  of  the  time.*  By  this  instru- 
ment a  large  executive  council  was  provided  for,  consisting  of 
twenty-four  proprietors  and  twelve  freemen,  and  this  large 
body  was  again  subdivided  into  a  number  of  committees.  It 
is  not  surprising,  however,  that  such  a  cumbersome  system 
was  never  organized  except  on  paper.  In  the  meantime,  the 
old  form,  by  which  the  power  was  vested  in  the  governor  and 
council,  was  maintained,  although  the  governor's  power  was 
very  considerably  checked  by  the  council.  Appointments 
were  determined  apparently  by  the  governor  and  council 
jointly;  commissions  were  issued  by  order  of  the  council.^ 

The  first  government  of  New  York  was  extremely  simple. 
Complete  political  authority  was  vested  in  one  man.  Gov- 
ernor Nicolls,  to  whom  the  Duke  of  York  granted  all  the 
powers  conferred  upon  the  proprietor  by  the  charter  of  1664. 
This  despotic  system  was  soon  modified  by  the  addition  of  a 
council,  which  was,  however,  to  be  appointed  by  the  governor.^ 

1  North  Carolina  Records,  ii.  535,  iii.  15. 

2  "  Concessions  "  in  New  Jersey  Documents,  i.  28  seq,  Cf.  commission 
and  instructions  to  Philip  Carteret,  Ibid.,  20,  21. 

3  Commission  to  Philip  Carteret,  1674,  in  Learning  and  Spicer,  Grants, 
Concessions,  etc.,  58. 

4  New  Jersey  Documents,  i.  395  seq. 

^  See  minutes  of  the  council.  New  Jersey  Documents,  xiii.  39-42,  46,  115, 
174. 

*  Commission   to   Nicolls,   Pennsylvania    Archives,   v.    509;     Nicolls's 


NEW   YORK,  NEW  HAMPSHIRE,  PENNSYLVANIA.     29 

Governor  Dongan's  instructions  of  1683  named  some  of  the 
members  of  his  council,  but  empowered  him  to  suspend 
councillors  and  to  fill  the  vacancies.^  Finally,  in  1688,  the 
royal  commission  to  Andros  established  the  usual  rule  of  the 
royal  governments.  ^ 

The  first  royal  commission  for  the  government  of  New 
Hampshire  provided  for  a  collegiate  executive,  vesting  execu- 
tive powers  in  the  president  and  council  jointly.^  Three  years 
later,  however,  a  commission  was  issued  providing  for  a  royal 
government  in  the  usual  form.^ 

In  Pennsylvania  the  charter  given  to  William  Penn  in  1681 
was  followed  by  a  series  of  constitutional  experiments.  Pass- 
ing over  Penn's  first  commission  to  his  deputy,  Markham,  which 
was  purely  provisional,^  the  "Frame  of  Government  of  1682  " 
was  the  first  constitution  of  Pennsylvania.  By  this  document 
the  executive  power  was  vested  in  a  large  body  called  the 
"Provincial  Council,"  in  which  the  governor  was  to  preside 
and  to  have  a  "treble  voice."  He  was  also  to  have  a  limited 
power  of  appointment  on  the  nomination  of  the  council,  but 
was  to  perform  no  public  act  of  importance  without  the  advice 
and  consent  of  the  council.  This  Provincial  Council  was  com- 
posed of  seventy-two  members,  of  whom  one  third  were  annually 
elected  by  the  freemen  for  terms  of  three  years.  The  business 
of  the  council  was  divided  among  committees.  Later,  the 
number  of  councillors,  having  been  found  too  large,  was  reduced 
successively  to  eighteen  and  twelve.^  On  Penn's  departure 
from  the  colony  in  1684,  the  government  was  left  in  the  hands 
of  this  Provincial  Council,  which  was  to  act  in  the  name  of 
the  proprietor.^     In  1687    Penn    issued  a  commission  to  five 

2iCCOMr\.\.,  Documentary  History  of  New   York  (1849),!.  2>'] ',  instructions  to 
Andros,  1674,  A^ew  York  Doaiments^  iii.  216. 
^  New  York  Docianents,  iii.  331. 

2  Andros's  commission  and  instructions,  Ibid.,  537. 

3  Commission  to  Cutts,  1 679,  in  New  Ha7npsJiire  Provincial  Papers,  i.  373. 
^  Commission  to  Cranfield,  Ibid.,  433. 

^  Charter  and  Laws  of  Pen?isyl{iania,  470. 

6  See  Frames  of  Government  of  1682,  1683,  and   1696,  Pennsylvania 
Records,  i.  Introd. 
'  Ibid.,  119. 


30       EVOLUTION  OF  THE  PROVINCIAL  EXECUTIVE. 

councillors,  authorizing  them  collectively  to  exercise  the  func- 
tions of  a  deputy-governor.  1  In  the  next  year  the  governor's 
office  was  placed  in  the  hands  of  one  man ;  ^  but  two  years  later 
there  was  a  recurrence  to  the  collegiate  form,  in  a  commission 
conferring  the  powers  of  the  deputy-governor  upon  the  council.^ 
After  the  brief  period  of  royal  control,  Penn  adopted  a  form 
similar  to  that  in  the  royal  governments,  by  which  a  governor 
was  appointed  by  the  proprietor  to  act  in  conjunction  with 
councillors,  whose  assent  was  required  in  all  cases.^  In  1701 
the  constitution  of  the  colony  was  put  into  its  permanent  form, 
under  which  the  governor  was  to  be  the  chief  executive, 
although  checked  by  councillors  who  were  to  "assist"  him 
"with  the  best  of  their  advice."  These  councillors  were 
appointed  by  the  proprietor  in  the  first  instance,  but  they  were 
afterward  to  be  named  by  the  governor.^ 

After  this  rapid  survey  of  the  different  colonies,  the  results 
of  the  first  century  of  constitutional  experience  may  be  briefly 
summed  up.  To  represent  the  colonial  executive  as  ha-\^ng 
assumed  its  final  form  at  this  time  would  be  to  give  a  false 
impression  of  the  actual  situation,  inasmuch  as  questions  were 
still  open  which  gave  rise  to  frequent  controversies  between 
governor  and  council.  The  general  result,  however,  is  clear. 
There  was  in  each  of  the  colonies,  excluding  the  elective  gov- 
ernments, a  single  head,  the  governor,  appointed  either  by  the 
crown  or  by  the  proprietor.  This  governor  was  checked  by  a 
council  appointed  generally  by  the  superior  authority  in  Eng- 
land, though  usually  on  the  recommendation  of  the  governor, 
—  a  fact  of  considerable  importance  in  determining  the  mutual 
relations  of  governor  and  council.  To  this  general  rule  in 
regard  to  the  appointment  of  councillors  there  were,  however, 
two  leading  exceptions.     In  Pennsylvania  they  seem  to  have 

1  Charter  and  Laws  of  Pennsylvania,  514. 

2  Blackwell's  commission  in  Pennsylvania  Records,  \.  228. 

8  An  alternative  commission  sent  out  by  Penn  authorized  the  council 
to  name  three  persons,  Ibid.,  315. 

4  Commission  to  Markham,  Ibid.,  475.  In  1700  Penn  again  visited  the 
colony  to  govern  it  in  person  for  a  time,  appointing  a  council  to  assist  him, 
Ibid.,  580. 

6  Proud,  History  of  Pennsylvania,  \.  451. 


IMPERFECT  DEFINITION  OF  POWERS.  3 1 

been  nominated  by  the  governor  and  presented  by  him  to  the 
council  for  acceptance.^  In  Massachusetts  they  were  elected 
by  the  General  Court,  consisting  of  the  council  and  the  House 
of  Representatives,  and  the  choice  was  then  subject  to  the 
veto  of  the  governor. ^  The  chief  question  still  left  open  in 
all  the  colonies  was,  then,  as  to  the  exact  extent  to  which 
the  council  should  be  allowed  to  control  the  action  of  the 
governor. 

Still  more  important  than  these  questions  of  organization 
was  the  gradual  growth  from  loose  and  vague  provisions  toward 
a  more  accurate  definition  of  the  powers  and  duties  of  the 
executive.  The  nature  of  the  early  colonial  governments  was 
necessarily  determined  to  a  large  extent  by  the  conditions 
under  which  they  were  organized.  The  early  governor  was 
not  the  executive  of  a  settled  political  community.  In  addi- 
tion to  his  political  functions,  he  was  often  the  manager  or 
the  superintendent  of  an  essentially  commercial  enterprise. 
Indeed,  in  the  first  stages  of  colonization,  the  most  important 
of  the  governor's  duties  was  the  superintendence  of  the  gen- 
eral work  of  settlement,  such  as  the  granting  of  lands,  the 
development  of  natural  resources,  and  the  maintenance  of 
friendly  relations  with  the  savages.  It  is  hardly  strange, 
then,  that  the  political  aspects  of  his  office  should  have  been 
overshadowed,  or  at  least  strongly  modified,  by  the  peculiar 
situation  in  which  he  was  placed.  It  was  inevitable  that  his 
political  functions  should  be  loosely  defined. 

This  business  aspect  of  the  governor's  ofRce,  his  position 
as  the  manager  of  a  large  commercial  establishment,  so  to 
speak,  is  clearly  brought  out  in  the  instructions  and  corre- 
spondence of  the  earliest  colonial  governors.  The  Virginia 
president  and  council  of  1607,  and  the  first  governors  who 
succeeded  them,  were  clearly  the  overseers  of  an  industrial 
establishment  intended  to  furnish  revenue  for  the  government 

1  Cf.  commission  to  the  council,  1701,  in  Proud,  History  of  Pemisylvartia^ 
i.  451.  For  illustrations  of  practice,  see  Pennsylvania  Records,  ii.  68,  117, 
iii.  232,  V.  I. 

*  Massachusetts  Charter,  1691,  in  Poore,  Charters  and  Cofistitutions, 
i.  942. 


32       EVOLUTION  OF  THE  PROVINCIAL  EXECUTIVE. 

at  home.  The  governor  of  Maryland  received  instructions  not 
only  for  the  government  of  the  colony,  but  for  the  manage- 
ment of  the  proprietor's  private  stock-farm. ^  Furthermore, 
the  turbulent  elements  in  these  early  colonies  made  necessary 
the  enforcement  of  almost  military  discipline  ;2  and  this  aspect 
of  the  governor's  office  was  also  emphasized  by  the  necessity 
for  constant  watchfulness  in  order  to  guard  the  colony  against 
its  savage  neighbors.  It  was  only  natural,  then,  that  in  this 
era  more  emphasis  should  be  laid  upon  executive  efficiency 
than  upon  constitutional  limitations. 

The  charters  issued  to  the  proprietors  and  to  colonizing 
companies  were  usually  couched  in  very  general  terms.  The 
grantees  were  empowered  to  "punish,  pardon,  govern,  and  rule  " 
the  inhabitants  of  the  colony,  though  frequently  the  provision 
was  made  that  legislation  and  taxation  should  be  with  the 
consent  of  the  freemen.  This  limitation  was  imposed  in  the 
charters  of  Maryland,  Carolina,  and  Pennsylvania.  The  New 
York  charter  reserved  the  right  to  hear  appeals  carried  from 
the  provincial  courts  to  the  king  in  council,  but  contained  no 
restriction  as  to  legislation  and  taxation.^  The  proprietors  had 
thus  left  to  them  a  wide  discretion  in  the  constitution  of  their 
colonial  governments. 

The  first  governor's  commissions  were  correspondingly  in- 
definite. The  Virginia  president  and  council  of  1607  were 
invested  with  powers  legislative  and  judicial  as  well  as  execu- 
tive.*   The  very  brief  commission  to  Lord  Delaware  in  1610 

^  Calveft  Papers  (Maryland  Historical  Society,  Fund-Publication,  No. 
28),  194,  214.  To  the  governors  of  the  Carolinas  were  given  full  instructions 
as  to  the  manner  of  laying  out  town  sites,  and  in  regard  to  the  development 
of  the  natural  resources  of  the  colony.  See  instructions  of  1669,  in  Rivers, 
Sketch  of  the  History  of  Sot(th  Carolina,  347. 

2  An  extreme  illustration  is  to  be  found  in  the  "  Articles,  Lawes,  and 
Orders,  Diuine,  Politique  and  Martiall "  issued  in  Virginia  in  1610  and 
161 1,  which  were  really  military  regulations  of  the  most  extreme  type, 
adapted  to  the  use  of  a  disorderly  soldiery  in  a  hostile  country.  See  Force, 
Tracts,  iii.  No.  2. 

2  All  these  charters  are  given  in  Poore,  Charters  and  Constitutions. 
The  Maryland  charter  is  translated  in  Bozman,  History  of  Maryland,  ii.  9. 

^  "Articles,"  etc.,  in  Brown,  Genesis  of  the  United  States,  i.  65  seq.  Cf. 
orders  of  the  Virginia  council,  Ibid.,  75. 


EARLY  COMMISSIONS.  33 

is  worth  citing.  Delaware  was  commissioned  governor  and 
captain-general,  with  power  to  enforce  martial  law,  "  and  upon 
all  other  cases  as  well  Capitall  as  Criminall  and  upon  all  other 
accidents  and  occasions  there  happening,  to  rule,  punish, 
pardone  and  governe,"  according  to  instructions  given  by  the 
council  in  England,  or  in  default  of  such  instructions  by  his 
own  discretion,  or  by  such  laws  as  he  should  see  fit  to  enact 
either  independently  or  with  the  advice  of  such  a  council  as 
he  should  think  proper  to  summon;  in  short,  he  received 
powers  as  absolute  as  the  company  by  its  patent  could  give, 
with  the  understanding,  moreover,  that  if  these  powers  were 
not  sufficient,  it  would  endeavor  to  meet  his  wants. ^  Here, 
then,  in  sweeping  terms  is  a  grant  of  legislative,  executive,  and 
judicial  functions.  The  commission  to  Nicolls  as  governor  of 
New  York  was  couched  in  similar  terms,  showing  that  the 
Duke  of  York  invested  his  deputy  with  the  right  of  exercising 
all  authority  granted  to  himself  as  proprietor. ^ 

These  two  commissions  to  Delaware  and  Nicolls  respectively 
furnish  the  most  striking  instances  of  the  brevity  which  was 
characteristic  of  all  the  early  commissions.^  Those  issued  by 
the  crown  immediately  after  the  overthrow  of  the  Virginia 
Company  usually  contained  a  formal  grant  of  authority,  a  state- 
ment of  the  governor's  military  powers  as  commander-in-chief, 
a  few  lines  regarding  the  constitution  of  the  council,  and 
some  instructions  of  a  special  and  temporary  character.  Finally, 
the  governor  was  authorized  to  govern  the  colony  as  fully  as 
any  governor  of  the  preceding  five  years  had  done.  This  vague 
reference  to  past  usage  as  the  measure  of  the  governor's  powers 
occurs  as  late  as  1641.^  Even  in  the  Carolinas  and  the  Jerseys, 
with   their   elaborate   written  constitutions,  the  commissions 

^  Delaware's  commission,  Ibid.,  376  seq. 

2  NicoUs's  commission,  Pennsylvania  Archives,  v.  509. 

8  With  the  founding  of  the  Carolina  and  the  Jersey  colonies  a  change 
begins,  inaugurating  a  period  of  elaborate  constitutional  definitions. 

*  See  James  I.'s  special  commission,  1624,  in  Rymer,  Fcedcra,  xvii. 
618-621  ;  commissions  of  1625  and  1626  in  Chalmers,  Political  Annals, 
III,  112,  and  Rymer,  Fccdera,  xviii,  311;  commissions  to  Harvey,  1628, 
1636,  Ibid.,  xviii.  980,  xx.  3-5  ;  Berkeley's  commission,  1641,  Ibid.,  xx. 
484. 

3 


34       EVOLUTION  OF  THE   PROVINCIAL  EXECUTIVE. 

were  brief  enough ;  ^  and  the  prematurely  minute  definitions  of 
their  fundamental  documents  had  little  or  no  practical  consti- 
tutional value."  It  was  only  very  gradually  that  the  commis- 
sions and  instructions  were  so  enlarged  that  a  more  accurate 
definition  of  powers  was  made  possible. 

The  institution  of  royal  governments,  expressing  as  it  did 
the  nascent  conception  of  the  colonies  as  parts  of  a  large 
political  or,  to  anticipate  contemporary  phraseology,  imperial 
system,  contributed  toward  a  more  purely  political  conception 
of  the  governor's  office.  In  the  establishment  of  these  govern- 
ments, the  king  was  but  asserting  his  right  and  duty  to  govern 
his  subjects;  and  since  the  governor  was  the  king's  represent- 
ative, this  vice-regal  position  gradually  came  to  determine  in 
large  measure  the  powers  of  the  colonial  executive.  The  gov- 
ernor's prerogative  was,  in  theory,  the  royal  prerogative  on  a 
smaller  scale  and  of  course  with  important  limitations.  Nor 
was  the  influence  of  these  new  conceptions  limited  to  the  royal 
provinces ;  it  was  felt  to  a  marked  extent  in  the  proprietary 
colonies  as  well. 

The  most  noticeable  feature  of  the  earlier  colonial  constitu- 
tions is  the  absence  of  anything  like  the  modern  political  prin- 
ciple of  the  separation  of  powers.  In  the  Virginia  government 
of  1607,  and  in  Lord  Delaware's  commission  of  1610,  there 
was,  as  we  have  seen,  a  union  of  executive,  judicial,  and  legis- 
lative functions.^  In  Maryland  the  right  of  legislation  was 
vested  in  the  proprietor  and  the  freemen;  but,  in  the  intervals 
between  the  sessions  of  the  assembly,  the  proprietor  was 
specially  empowered  to  issue  ordinances  having  the  force  of 

1  See  list  of  commissions  and  instructions  below,  Appendix  B. 

^  It  is  interesting  to  note,  in  the  youngest  of  the  thirteen  colonies,  a  re- 
turn to  the  old  practice,  a  repetition  of  the  old  vagueness  in  definition. 
Here,  for  example,  is  a  contemporary  description  of  Oglethorpe's  authority 
in  Georgia,  quoted  from  a  South  Carolina  paper  :  "  The  general  Title  they 
give  him  is  Father.  ...  If  any  difference  arises,  he  is  the  Person  that  de- 
cides it.  .  .  .  He  keeps  a  strict  Discipline.  .  .  .  He  does  not  allow  them 
Rum,  but  in  lieu  gives  them  English  Beer  "  (Jones,  History  of  Georgia^  i. 
127-128).  This  statement  seems  to  be  quite  outside  the  domain  of  exact  or 
even  approximately  exact  constitutional  definitions. 

2  Above,  p.  32. 


LEGISLATIVE  AND  JUDICIAL  AUTHORITY.  35 

law,  provided  that  such  ordinances  should  not  prejudice  the 
rights  of  persons  in  life,  members,  or  property.  This  pre- 
rogative was  granted  to  the  governor  by  the  early  commissions, 
with  the  proviso  that  his  enactments  were  not  to  be  in  con- 
flict with  laws  already  in  force.  Moreover,  judicial  juris- 
diction in  all  cases  civil  and  criminal  was  given  him,  to  be 
exercised  either  alone  or  with  his  council.^ 

The  precedents  set  in  the  older  colonies  were  followed  else- 
where. In  New  York,  Governor  Nicolls  was  invested  with  all 
the  powers  of  the  proprietor,  including  the  right  of  legislation, 
which  was  actually  exercised  by  him  either  alone  or  with  the 
assent  of  the  council  and  of  the  assize  of  justices,  a  body  of 
his  own  nominees  whose  power  could  have  been  hardly  more 
than  advisory.2  The  Carolina  charter,  like  that  of  Maryland, 
though  it  provided  for  legislation  regularly  by  the  proprietors 
with  the  consent  of  the  freemen,  also  reserved  to  the  proprie- 
tors or  their  representatives  the  right  to  issue  ordinances  hav- 
ing the  force  of  law;^  and  the  minutes  of  the  governor  and 
council  show  that  such  ordinances  were  actually  passed.^  Here 
also  the  governor  and  council  were  given  judicial  functions.^  In 
New  Hampshire  the  governor  and  council  were  authorized  to 
continue  the  old  taxes  until  suitable  provision  should  be  made 
by  the  assembly;^  whereupon  Governor  Cranfield,  on  the 
failure  of  the  assembly  to  raise  the  necessary  revenue,  took 
advantage  of  this  power  and  continued  the  taxes,  meeting  with 
serious  resistance,  however,   in  the  attempt  to  collect  them.^ 

1  See  Calvert's  commissions  of  1637  and  1642,  in  Bozman,  History  of 
Maryland,  ii.  572,  621.     Cf.  with  the  language  of  the  charter,  Ibid.,  ii.  9. 

2  See  commission  to  Nicolls,  Petinsylvajiia  Archives,  v.  509.  Cf. 
charter  of  1664,  in  Poore,  Charters  and  Constitutions,  i.  783;  Nicolls 's 
account,  Documentary  History  of  New  York  (1849),  1-87;  Charter  and 
Laws  of  Pennsylvania,  3,  44,  53,  (i(). 

3  Charter  of  1663,  §§  5,  6,  in  Poore,  Charters  and  Constitutions,  ii.  1382. 
Cf.  the  charter  of  Maryland 

*  Cf.,  for  example.  North  Carolina  Records,  ii.  130. 
s  Instructions  to  Ludwell,  1691,  §§  15-17. 

6  Commissions  to  Cutts  and  Cranfield,  New  Hampshire  Provincial 
Papers,  i.  373,  433. 

'  Ibid.,  475,  496,  543-544. 


36       EVOLUTION  OF  THE  PROVINCIAL  EXECUTIVE. 

The  ordaining  power  was  evidently  pushed  very  far  in  these 
early  years  of  New  Hampshire's  separate  provincial  govern- 
ment, for  there  are  complaints  that  the  governor  and  council 
made  laws  without  the  cooperation  of  the  assembly.  ^  Here 
also  the  president  and  council  were  endowed  by  the  first 
provincial  commission  with  judicial  jurisdiction  in  all  cases 
civil  and  criminal. ^  Everywhere,  then,  the  governor  is  found 
exercising  functions  which  are  usually  considered  to  be  beyond 
the  sphere  of  the  executive  department  of  the  State. 

The  possession  of  legislative  authority  by  the  executive  was 
hardly  in  accord  with  the  old  English  tradition  that  legislation 
and  taxation  should  be  guarded  by  a  representative  body.  It 
was  not  likely,  therefore,  that  this  branch  of  the  governor's 
extra-executive  power  would  survive  the  primitive  conditions 
of  the  first  colonial  establishments.  In  Virginia  the  triumph 
of  the  liberal  element  in  the  company  gave  to  the  colony  the 
famous  assembly  of  1619,  the  first  representative  body  in 
America.^  This  grant  was  confirmed  by  the  ordinance  of 
162 1,  and  the  governor's  authority  was  thus  brought  within 
more  moderate  limits.^  In  spite  of  the  existence  of  an 
assembly,  however,  the  governors  seem  not  to  have  given  up 
their  legislative  powers  at  once;  consequently  in  1624  the 
assembly  found  it  necessary  to  pass  a  formal  act  declaring 
expressly  that  the  governor  was  not  to  make  laws  without  the 
consent  of  the  assembly.^ 

After  the  institution  of  the  royal  government  in  Virginia, 
the  policy  of  the  crown  was  for  a  time  uncertain.  The  early 
commissions  said  nothing  of  an  assembly ;  and  the  only  recorded 
legislation  of  the  next  five  years  which  has  come  down  to  us  is 
in  the  form  of  proclamations  by  the  governor.^  On  the  other 
hand,  it  is  certain  that  the  assembly  did  not  lapse  altogether; 
for  there  is  evidence    that  in   1627   the   king   recognized    its 

1  See  ordinances  of  governor  and  council,  Ibid.,  463,  468,  473,  481 ;  cf. 
p.  S18. 

2  Commission  to  Cutts,  Ibid.,  373. 
8  Colonial  Records  of  Virginia,  81. 
^  Hening,  Statutes,  i.  no. 

5  Ibid,,  124,  129;  Chalmers,  Political  Annals,  63-64. 
^  Hening,  Statutes,  i.  129-130. 


LEGISLATIVE  POWERS   WITHDRAWN.  37 

-existence  and  competency  by  submitting  to  it  certain  proposi- 
tions relating  to  the  tobacco  trade,  to  which  the  assembly 
replied  by  submitting  counter-propositions. ^  The  power  of 
the  assembly  was,  however,  still  on  a  precarious  footing.  The 
governor  continued  to  assume  for  himself  the  rights  of  taxa- 
tion and  legislation,  which  were  again  expressly  denied  by  the 
assembly  in  acts  of  February  and  September,  1632.2  This 
abuse  of  power  by  the  governor  led  to  his  expulsion  by  the 
colonists;  and  though  he  was  again  forced  upon  them  for  a 
time,  yet  a  few  years  later  the  king,  by  his  instructions  to 
Berkeley,  gave  to  the  assembly  a  formal  recognition.  ^  After 
the  Restoration  the  same  Governor  Berkeley  was  by  his  first 
instructions  directed  to  call  the  assembly  within  one  month  of 
his  arrival  in  the  colony.* 

The  continued  existence  of  some  representative  body  was 
now  fairly  assured ;  but  there  was  still  at  times  a  disposition 
to  restrict  its  activity  as  far  as  possible.  Lord  Culpeper  was 
directed  to  summon  an  assembly  only  by  special  direction  of 
the  crown, '^  and  five  years  passed  without  any  legislative 
sessions.®  On  the  other  hand,  the  instruction  to  Lord 
Howard  of  Effingham  to  "recommend"  the  assembly  to  allow 
the  governor  and  council,  in  case  of  emergency,  to  impose 
duties,  was  a  clear  recognition  of  the  assembly  and  of  its 
exclusive  right  to  determine  taxation.''  The  governor,  never- 
theless, seems  still  to  have  encroached  upon  the  field  of  legis- 

1  Hening,  Statutes,  \.  129,  134  :  Neill,  Virginia  Caroloriim,  i^ ;  Sainsburj-, 
Calendar  of  State  Papers,  Colotiial  Series,  America  and  West  Indies,  1574- 
l66o,  pp.  86,  87,  89,  90. 

2  Chalmers,  Political  Annals,  118-119:  letter  of  Richard  Kemp,  in 
Sainsbury-,  Calendar  of  State  Papers,  Colonial  Series,  America  and  West 
Indies,  1574-1660,  p.  207;  Hening,  Stattites,  i.  171,  196. 

8  Berkeley  was  to  summon  the  assembly  once  a  year,  or  oftener  if  urgent 
occasion  should  require,  having  "as  formerly  *'  a  negative  voice  upon  its  pro- 
ceedings:  Instructions,  §  4,  Virginia  Magazine,  ii.  281. 

*  Chalmers,  Political  Annals,  244;  In.structions,  1662,  §  2,  Virginia 
Magazine,  iii.   15. 

^  Doyle,  English  in  America,  i.  344. 

^  There  is,  at  least,  no  record  of  any  acts  of  assembly  between  16S6  and 
1 69 1.     See  Hening,  Stattites,  iii. 

^  Doyle,  English  in  At?ierica,  i.  349-350. 


38       EVOLUTION  OF  THE  PROVINCIAL  EXECUTIVE. 

lation  by  means  of  proclamations ;  ^  but,  with  a  representative 
assembly  controlling  the  purse,  these  abnormal  features  natu- 
rally passed  away  or  became  very  exceptional. 

In  New  York,  James  fought  against  the  change  as  long  as 
he  could.  In  reply  to  Andros's  letter  recommending  an  as- 
sembly, he  wrote  that  assemblies  were  destructive  to  the  peace 
of  governments  in  which  they  were  allowed.^  In  1680  occurred 
the  Dyer  case,  in  which  the  officers  of  the  duke  were  resisted 
in  the  collection  of  duties  imposed  by  the  latter. ^  The 
Court  of  Assizes,  composed  of  the  governor's  own  nominees, 
petitioned  for  a  representative  assembly;  and  James  finally 
submitted,  authorizing  Governor  Dongan  in  1683  to  call  an 
assembly.^  This  body  at  its  first  sessions  enacted  the  so- 
called  "Charter  of  Privileges,"  which  asserted  in  strong  terms 
the  exclusive  legislative  authority  of  the  assembly;^  where- 
upon James  took  offence  at  the  high  tone  assumed  by  it  and 
disallowed  the  act.^  The  royal  commission  of  1686  again 
vested  full  powers  of  legislation  and  taxation  in  the  governor 
and  council;'^  and  in  1688  New  York  was  annexed  to  the  gen- 
eral government  of  New  England,  in  which  the  same  despotic 
system  was  already  in  force. ^  The  result  of  this  latter  experi- 
ment is  too  familiar  to  need  repetition  here.  In  New  York 
the  Andros  government  went  down  before  the  Leisler  rebel- 
lion; whereupon  Leisler  established  a  provisional  government, 
assumed  that  the  Charter  of  Privileges  was  in  force,  and  called 
an  assembly.^     This  revolutionary  organization  was  of  course 

1  Beverly,  History  of  Virginia,  80,  85. 

2  January,  1676:  New  York  Documents,  iii.  235. 

3  Ibid.^  246,  289  ;  Chalmers,  Political  Annals,  582-583. 

*  Wood,  Sketch  of  Long  Island,  178;  New  York  Docutnents,  iii.  317- 
318;  Dongan's  instructions,  Ibid.,  331. 

^  Brodhead,  History  of  New  York,  ii.  659. 

®  Instructions  to  Dongan,  New  York  Documents,  iii.  370. 

"  Dongan's  commission,  16S6,  Ibid.,  377. 

8  Commission   and   instructions   to   Andros,   Ibid.,    537   seq..,   especially 

538. 

^  Leisler's  writs,  Docu77tentary  History  of  New  York  (1849),  ii.  282-283  ! 
Brodhead,  History  of  New  York,  ii.  615,  623;  N^ew  York  Documents,  iii. 
700,  717. 


INITIATIVE  IN  LEGISLATION  CLAIMED.  39 

overthrown,  but  the  new  royal  commission  definitely  recognized 
the  assembly.  1 

The  Andros  commission  for  the  government  of  New  Eng- 
land was  the  last  deliberate  attempt  to  give  the  governor 
absolute  powers  in  legislation,  though  in  Georgia  there  was 
certainly  for  a  time  a  very  informal  government  under  Ogle- 
thorpe.^ Until  175 1  there  was  no  representative  assembly 
within  the  latter  colony,  and  the  one  then  instituted  was  noth- 
ing more  than  an  advisory  body.^  When  Georgia  became 
a  royal  government,  however,  an  assembly  was  regularly 
organized. 

Reference  has  been  made  to  the  power  of  issuing  ordinances 
as  exercised  in  Maryland,  the  Carol inas,  and  New  Hampshire. 
This  power,  though  certainly  actually  used  in  the  beginning, 
seems,  however,  to  have  been  allowed  to  lapse. ^  In  New 
Hampshire,  Governor  Cranfield's  effort  to  collect  the  old  taxes 
continued  by  proclamation  met,  as  has  been  seen,  with  vigor- 
ous resistance;  hence  in  the  commissions  given  after  the 
revolution  of  1688  the  clause  providing  for  this  mode  of  contin- 
uing taxes  was  wisely  omitted.  Nevertheless,  the  power  to 
issue  ordinances  continued  to  be  exercised,  but  usually  within 
reasonable  limits.  In  two  specified  cases,  namely,  in  the 
erection  of  courts  and  the  regulation  of  fees,  the  governor  was 
invested  by  his  commission  with  quasi-legislative  power;  and 
although  these  rights  were  practically  very  much  limited  by 
the  action  of  the  assembly,  yet  they  continued  throughout 
the  colonial  era  to  be  in  theory  a  part  of  the  governor's 
prerogative.^ 

Even  after  the  governor  had  been  forced  to  give  up  the 
power  of  legislating  independently,  he  still  claimed  for  him- 
self,  in  many  cases,   a  distinctly  preponderating  influence  in 

*  Sloughter's  commission,  New  York  Docuwetits,  iii.  623. 
2  Wright,  Memoir  of  General  James  Oglethorpe,  64. 

8  Jones,  History  of  Georgia,  i.  434-435. 

*  For  Maryland,  see  Maryland  Archives,  iii.  103,  129,  194,  v.  105  ;  Cal- 
vert's commission,  1666,  Ibid./m.  542.  For  Carolina,  see  "Grievances  of 
the  Assembly,"  in  Rivers,  Sketch  of  the  History  of  South  Carolina,  433. 

^  Commission  to  Bernard,  1758,  §  15;  instructions,  §  44. 


40       EVOLUTION  OF  THE  PROVINCIAL   EXECUTIVE. 

the  process  of  legislation.  In  Virginia  the  royal  instructions 
of  1682  directed  that  all  bills  should  be  drafted  by  the  gov- 
ernor and  council.^  The  Maryland  proprietor  claimed  for  him- 
self or  his  governor  the  sole  right  of  initiating  legislation.^ 
In  Pennsylvania,  Penn's  first  two  constitutions  provided  that 
all  laws  should  be  prepared  by  the  governor  and  Provincial 
Council ;  and  measures  thus  prepared  were  then  to  be  presented 
to  the  assembly  for  its  simple  approval  or  rejection.^  A  simi- 
lar exclusive  privilege  was  given  to  the  Grand  Council,  the 
collegiate  executive  of  the  Carolina  "Fundamental  Constitu- 
tions."* These  claims,  however,  were  uniformly  resisted.  In 
Maryland,  the  proprietor,  after  an  unsuccessful  attempt  to 
force  legislation  upon  the  assembly,^  empowered  the  governor 
to  approve  bills  presented  by  that  body.^  The  Carolina  gover- 
nor and  council  had  for  a  time,  it  is  true,  the  initiative  in 
legislation;  but  in  1682  this  privilege  was  restricted  by  the 
provision  that,  if  the  council  failed  to  propose  a  bill  presented 
by  a  majority  of  the  grand  juries,  the  Parliament  might  assume 
the  initiative.^  Later  the  assembly  denied  altogether  the 
right  of  the  council  to  initiate  legislation,  and  a  prolonged 
deadlock  ensued.^     The  instructions  of  1691  did  not  distinctly 

1  Culpeper's  instructions,  cited  by  Doyle,  English  in  America,  i.  344. 

2  Lord  Baltimore,  by  his  commission  to  Leonard  Calvert  in  1637,  de- 
clared his  veto  of  all  laws  passed  by  the  assembly,  and  submitted  his  own 
code  to  the  freemen  for  their  approval.  The  governor  was  thenceforth 
empowered  to  "propound"  legislation  to  the  assembly.  See  commission 
in  Bozman,  History  of  Maryland,  ii.  572. 

3  Frames  orf  Government  of  1682  and  1683,  in  Poore,  Charters  a7id  Con- 
stitutions, ii.  1520,  1527. 

4  Fundamental  Constitutions,  §§  50-55,  Ibid.,  1397. 

^  The  assembly  rejected  the  code  of  laws  sent  over  by  the  proprietor, 
and  passed  another  set.     See  Maryland  Archives,  i.  6,  9,  23. 

8  Ibid.,  31.  In  1648  the  proprietor  sent  over  another  set  of  laws  to  be 
accepted  or  rejected  as  a  whole,  but  the  assembly  decided  not  to  "  meddle" 
with  them  at  all ;  in  the  following  year  the  proprietor  again  urged  their 
passage,  and  some  of  them  were  passed,  though  the  assembly  still  refused 
to  enact  them  in  a  mass.  See  letters  of  the  assembly  and  the  proprietor, 
and  laws  passed.  Ibid.,  238,  262  seq.,  299. 

''  Instructions  to  governor  and  council  at  Ashley  River,  in  Rivers,  Sketch 
of  the  History  of  South  Carolina,  369,  395. 

*  Address  to  Governor  Sothel,  Ibid.,  422. 


THE   GOVERNOR  IN  THE  ASSEMBLY.  4 1 

assert  this  right.^  Royal  instructions  like  those  of  the  year 
1682  in  Virginia  were  quite  exceptional,  containing,  as  they 
did,  a  grant  of  power  such  as  was  found  in  none  of  the  royal 
commissions  of  the  eighteenth  century. 

In  the   earliest   period   of   colonization,    the   governor  was 
sometimes   a   member  of    the    assembly.      In    the    Virginia 
assembly   of    1619,    governor,  council,    and   assembly  all    sat 
together,  and  the  governor  seems  to  have  made  motions  like 
an  ordinary  member.'-^     The    ordinance  of    1621    declared   the 
assembly   to   consist   of  the   council   of   state    (the   governor 
being  a  member)  and  two  burgesses  from  each  "  town,  hundred, 
or  other    particular    plantation."     All   decisions    required   a 
majority  vote,  but  the  governor  had,  apparently  in  addition  to 
his  vote  as  an  individual  member,  the   right  of  veto.^    The 
first  Maryland  assembly  was  similarly  constituted.     The  gov- 
ernor presided,  and  his  power  was   further  increased  by  two 
peculiar  customs,  one  of  which  was  the  use  of  proxies.     Thus, 
on  one  division,  the  governor  and  one  councillor  are  recorded 
as  having  cast  fourteen  votes. ^     There  is  no  indication  that 
these  proxies  were  given  for  particular  votes ;  they  were  appar- 
ently used  at  the  discretion  of  the  holder.     A  second  peculiar 
privilege  enjoyed  by  the  Maryland  governor  was  that  of  issu- 
ing to  persons  not  members  of  the  council  or  regularly  elected 
as  representatives  special  writs,  giving  them  the  right  to  sit 
and  vote  in  the  assembly.^     Such  votes  would  under  ordinary 
conditions  easily  be  controlled  by  the  governor.     The  Carolina 
"  Fundamental    Constitutions "    provided   that   the   governor, 
the   deputies,   the   nobility,    and   the   elected   representatives 
should  all  sit  together  in  parliament,  except  in  certain  cases 
when  they  should  separate  into  four  houses.     The  first  New 
Hampshire  constitution  had  given  the  executive  power  to  a 
president  and  council ;  but  in  view  of  the  fact  that  by  an  early 

1  Ludwell's  instructions,  1691,  §  27.     Cf.  his  private  instructions,  North 
Carolina  Records,  i.   381. 

2  Colonial  Records  of  Virginia,  9,  il,  12. 
^  Ordinance  in  Hening,  Statutes,  i.  1 10. 
*  Maryland  Archives,  i.  4,  9. 

^  Ibid.,  12S-129;  Bozman,  History  of  Maryland,  ii.  216. 


42         EVOLUTION  OF  THE  PROVINCIAL   EXECUTIVE. 

Statute  a  casting  vote  in  the  proceedings  of  the  general  assem- 
bly was  given  to  the  president,  it  seems  evident  that  the  presi- 
dent, council,  and  assembly  sat  as  one  body.^ 

The  first  important  step  toward  legislative  independence  of 
the  governor  and  council  gained  by  the  representative  element 
in  the  assembly  was  the  separation  of  the  two  houses.  ^  Just 
when  the  division  took  place  in  Virginia,  it  is  not  easy  to 
determine.  It  has  been  said  that  it  occurred  in  Culpeper's 
time;  2  but  much  earlier  than  this,  in  1666,  there  is  a  distinct 
reference  to  the  "house"  of  burgesses.^  In  Maryland  the 
separation  of  the  two  houses  came  very  early.  In  1642  the 
burgesses  requested  a  separation,  which  was  at  first  refused ; 
but  in  1650  an  act  was  passed  providing  for  a  division  into 
two  houses.*  In  New  Hampshire  and  the  Carolinas  the  single 
chamber  system  was  soon  discarded,  and  the  governor  and 
council  were  recognized  as  an  upper  house.^  This  division  into 
two  houses  was  the  general  rule  in  all  the  colonies  except  Penn- 
sylvania, where  the  council  lost  all  its  formal  legislative  powers 
and  became,  at  least  in  name,  simply  an  executive  body.^ 

After  the  division  into  two  houses,  the  governor  at  first 
generally  sat  either  as  a  member  of  the  upper  house  or  as  its 
presiding  officer^     Hutchinson,  in  his  "  History  of  Massachu- 

1  New  Hampshire  Provincial  Papers,  i.  407, 

2  Beverly,  History  of  Virginia,  203. 

8  In  that  year,  Governor  Berkeley  sent  a  message  to  the  burgesses  de- 
siring that  two  or  more  of  the  council  might  join  with  them  "in  granting 
and  confirming  the  sums  of  the  levy."  The  burgesses  replied  that  they 
conceived  it  "  their  privilege  to  lay  the  levy  in  the  house."  See  Hening, 
Siatiites,  ii.  254. 

4  Maryland  Archives,  i.  130,  272.  In  1660,  Governor  Fendall,  who 
wished  to  win  popularity  at  the  expense  of  the  proprietary  interests,  con- 
sented to  a  reunion  of  the  two  Houses,  which  was  then  desired  by  the 
lower  House.  The  latter  was  then  numerically  superior  to  the  upper  house, 
and  had  thus  something  to  gain  from  the  change.  The  reunion,  however, 
was  only  temporary  {Ibid.,  390,  395  seq.). 

^  See,  for  example,  New  Hampshire  Provincial  Papers,  ii.  155 ;  North 
Caj'olina  Records,  i.  614  ;  Case  of  the  Dissenters,  31. 

6  Commission  to  the  council,  in  Proud,  History  of  Pennsylvania,  i.  451  ; 
letter  of  Hannah  Penn,  1724,  Ibid.,  ii.  179. 

^  N^ew  Hampshire  Prcnficial  Papers,  ii.  155  (minutes  of  May,  1695); 


EXCLUSION  FROM  THE   UPPER  HOUSE.  43 

setts,"  1  says  that  Lord  Bellomont,  who  was  governor  of  Massa- 
chusetts in  1699,  considered  himself  the  head  of  the  council  in 
its  legislative  as  well  as  in  its  executive  capacity.  Hutchin- 
son thought,  however,  that  this  claim  was  the  result  of  the 
unsettled  condition  of  the  constitution,  and  that  the  governor 
had  strictly  no  right  to  vote  on  bills.  Sewall's  diary  repre- 
sents the  governor  as  taking  an  active  part  in  legislative  busi- 
ness. An  entry  of  the  year  1715  refers  to  a  certain  tax-bill 
which  had  been  read  in  the  council  and  which  Sewall  desired 
to  have  postponed;  but  "the  governor  would  have  it  voted 
then,"  and  the  vote  was  taken. ^ 

In  1725  the  question  as  to  the  governor's  right  to  vote  in 
the  legislative  sessions  of  the  council  was  referred  to  the 
crown  law-officers,  who  decided  against  the  governor's  claim  ;^ 
but  it  is  probable  that  this  settlement  of  the  questions  at  issue 
was  not  final,  for  in  1729  Governor  Cosby  of  New  York  insisted 
on  his  right  to  sit  and  vote  with  the  council.  His  action, 
however,  called  out  a  protest,  in  consequence  of  which  the 
Board  of  Trade  directed  him  not  to  act  as  a  member  of  the 
legislative  council;  and  thereafter  Cosby' s  successors  both  in 
New  York  and  in  New  Jersey  allowed  the  council  the  privilege 
of  sitting  apart  in  its  legislative  capacity.*     In  North  Carolina 

Maryland  Archives,  i.  272,  xiii.  329;  N^orth  Carolina  Records,  iii.  310; 
Jones,  Present  State  of  Virginia,  63 ;  Hartwell,  Blair,  and  Chilton,  Present 
State  of  Virginia,  39. 

1  II.  15,  107. 

2  SewaWs  Diary,  iii.  47.  In  Pennsylvania,  the  governor  was  himself  a 
species  of  upper  house,  though  the  council  was  usually  called  upon  for 
advice.  The  governor's  right  to  amend  bills  was  disputed  only  in  financial 
legislation.     See  Votes  of  Pennsylvania,  \..  129-133. 

8  Chalmers,  Opiniotis,  238. 

*  A'cw  York  Documents,  v.  8S7,  vi.  39.  Cosby  was  succeeded  in  New 
Jersey  by  Lewis  Morris,  who  before  his  appointment  as  governor  had  been 
a  councillor,  and  as  such  had  taken  a  strong  stand  against  the  claims  of  his 
predecessor.  On  his  assumption  of  the  government  of  New  Jersey,  he 
made  an  address  to  the  councillors,  promising  them  the  privilege,  for  the 
first  time,  of  holding  their  legislative  sessions  apart  from  the  governor.  See 
New  fersey  Documents,  xv.  4.  Cf.  Governor  Belcher's  apparently  unsuc- 
cessful attempt  to  reverse  this  action,  Ibid.,  vii.  77-Si.  For  New  York,  cf. 
Smith,  History  of  New  York,  310. 


44       EVOLUTION  OF  THE  PROVINCIAL  EXECUTIVE. 

there  was  a  similar  conflict.  Governor  Burrington  maintained 
that  the  council  always  sat  in  a  double  capacity,  "the  two 
capacities  never  being  distinguished,"  and  declared  that  the 
governor's  right  to  be  present  at  all  debates  was  allowed  every- 
where. Here  again  the  council  finally  gained  its  point,  in 
that  it  sat  apart  in  legislative  sessions  and  had  a  separate 
presiding  officer.^ 

In  1739  the  South  Carolina  council  declared  its  independence 
in  the  following  vigorous  terms:  "The  Governor  or  com- 
mander in  chief  being  present  during  the  debates  of  this 
House  is  of  an  unparliamentary  nature,  it  is  therefore  resolved 
that  we  will  enter  into  no  debate  during  such  his  presence."^ 
Governor  Glen  protested  against  this  exclusion  from  the  coun- 
cil, and  was  finally  allowed  to  attend  the  sessions  without 
taking  any  part  in  the  debates."  In  1754,  Georgia  was  organ- 
ized as  a  royal  province  with  a  royal  government  of  the 
strictest  sort.  The  rule  there  was,  —  and  this  rule  may  be 
taken  as  an  expression  of  the  normal  practice  of  the  royal 
governments,  —  that  when  the  council  sat  as  an  upper  house, 
the  lieutenant-governor,  if  a  member,  presided.^  The  council 
was  thus,  in  form  at  least,  an  independent  legislative  house, 
having  a  distinct  presiding  officer. 

This  was  the  last  step  taken  during  the  colonial  era  in  the 
separation  of  legislative  and  executive  functions.  The  gov- 
ernor retained  a  certain  part  in  the  process  of  legislation,  first 
through  his  right  of  assent  or  veto,  and  secondly  through  his 
influence  over  the  council,  an  influence  which,  though  weak- 
ened by  his  withdrawal  from  the  legislative  sessions,  was  still 
strong  over  a  body  composed  mainly  of  his  own  nominees. 

Another  branch  of  extra-executive  powers  possessed  by  the 
early  governors  has  already  been  noted,  namely,  his  judicial 
authority.  This  was  necessarily  much  limited  by  the  organi- 
zation of  a  regular  system   of   courts;  but   the  governor  and 

^  No7-th  Carolina  Records,  iii.  357,  478,  iv.  446. 

2  Letter  of  Governor  Glen,  April  11,  1739,  in  South  Carolina  Historical 
Society,  Collections,  ii.  286. 

^  Letter  of  174S,  Ibid.,  303  seq.,  especially  304. 
^  Stokes,  Constitution  of  the  British  Colonies,  124. 


THE   ''PROVINCIAL   GOVERNOR:'  45 

council  continued  in  most  of  the  colonies  to  be  the   highest 
court  of  appeal  within  the  province. ^ 

The  provincial  governor,  then,  never  became  a  purely  execu- 
tive officer,  inasmuch  as  he  continued  to  be  invested  with 
legislative  and  judicial  functions  of  the  highest  importance. 
Nevertheless,  much  had  been  accomplished  in  the  direction  of 
a  rational  distribution  of  functions,  in  that  the  real  control 
of  legislation  had  passed  irrevocably  into  the  hands  of  the 
assembly,  and  the  administration  of  justice  was  largely  in  the 
hands  of  a  regularly  organized  judiciary.  The  result  of  this 
work  of  definition  and  separation,  imperfect  as  it  was,  was  the 
royal  governor  of  the  eighteenth  century.  With  a  few  modifi- 
cations, which  have  been  already  noted,  the  proprietary  gover- 
nors may  properly  be  included  in  the  same  category  with  the 
royal.  Thus,  as  a  general  term  including  both  the  proprietary 
and  the  royal  governors,  the  name  "provincial  governor"  will 
serve  as  a  convenient  if  not  precisely  accurate  title.  The 
character  of  this  office  in  its  actual  operation  will  form  the 
subject  of  the  succeeding  chapter. 

1  See  below,  ch.  vii. 


CHAPTER  III. 

THE    GOVERNOR'S    APPOINTMENT,    TENURE    OF    OFFICE, 

AND    EMOLUMENTS. 

The  provincial  governor  of  the  royal  and  proprietary  colonies 
was  appointed  by  the  higher  authority  in  England,  though  the 
appointment  came  in  the  one  case  from  the  crown,  and  in  the 
other  from  a  proprietor  or  a  group  of  proprietors.  As  has  been 
seen  already,  however,  the  crown  had  so  far  extended  its  con- 
trol over  the  proprietary  governments  that  the  appointment 
of  governors  was  subject  to  confirmation  by  the  crown.  The 
royal  governors,  on  the  other  hand,  were  usually  appointed  on 
the  recommendation  of  the  Board  of  Trade,  by  order  of  the 
king  in  council.^ 

The  methods  by  which  these  appointments  were  secured 
were  similar  to  those  employed  in  the  other  departments  of  the 
British  public  service  in  the  days  of  the  Whig  ascendancy. 
In  a  report  submitted  to  the  Board  of  Trade  in  171 5  there  is 
an  interesting  statement  of  the  principles  governing  such 
appointments:  "Governments  have  bin  sometimes  given  as  a 
reward  for  Services  done  to  the  Crown,  and  with  design  that 
such  persons  should  thereby  make  their  fortunes.  But  they 
are  generally  obtained  by  the  favour  of  great  Men  to  some  of 
their  dependants  or  relations,  and  they  have  bin  sometimes 
given  to  persons  who  were  oblidged  to  divide  the  profit  of  them 

1  See,  for  example,  the  record  of  the  proceedings  in  the  case  of  Josiah 
Hardy,  appointed  governor  of  New  Jersey  in  1761.  After  the  reading  of 
the  representation  of  the  Board  of  Trade  proposing  his  appointment,  it  was 
ordered  by  the  king  in  council  that  his  appointment  be  made  as  proposed. 
The  Board  of  Trade  was  then  directed  to  prepare  the  draft  of  the  governor's 
commission,  which  finally,  after  its  approval  by  the  Privy  Council,  went  to 
the  king  for  his  signature.     See  New  Jejsey  Documents,  ix.  259,  262. 


THE  APPOINTMENT  OF  GOVERNORS.  47 

with  those  by  whose  means  they  were  procured.  The  Quali- 
fications of  such  persons  for  Government  being  seldom  consid- 
ered. "^  This  is  a  severe  indictment;  but  it  is  not  difficult  to 
find  specific  cases  sustaining  these  charges.  Thus  the  Duke 
of  Newcastle,  the  great  dispenser  of  public  offices  in  the  last 
century,  extended  his  activity  to  the  colonies.  In  the  North 
Carolina  records  is  a  list  of  places  said  to  be  in  his  gift;^  and 
there  is  evidence  that  applications  for  the  use  of  his  influence 
were  made  to  him  by  anxious  candidates  for  the  colonial  ser- 
vice. ^  The  spirit  of  this  office-jobbing  is  fairly  well  illus- 
trated by  a  letter  to  the  Secretary  of  State,  Townshend,  from 
one  John  Lloyd.  This  gentleman  explained  that  he  had 
resided  nine  years  in  South  Carolina,  "whither  he  came 
because  of  ill-fortune  in  the  stocks  " ;  and  he  now  asked  for 
the  office  either  of  lieutenant-governor  without  salary,  or  first 
of  the  king's  council,  saying  that  "what  he  'proposes  by  it 
is  a  little  power,  and  perhaps  a  little  profit. '  "  *  Chalmers 
asserted  that  Eliseus  Burgess  sold  his  appointment  as  governor 
of  Massachusetts  and  New  Hampshire  for  the  sum  of  ;!^iooo.^ 
It  is  hardly  strange,  therefore,  that  under  such  conditions 
characters  like  Culpeper  and  Cornbury  were  turned  loose  upon 
the  colonies. 

During  the  latter  part  of   the    colonial    era,    appointments 

^  North  Carolina  Records,  ii.  154  seq.,  especially  158. 

2  Ibid.,  iii.  80. 

3  Sir  William  Keith  asked  Newcastle  to  use  his  influence  to  secure  the 
former's  appointment  as  governor  of  New  Jersey  {New  Jersey  Documetits, 
V.  446). 

^  South  Carolina  Historical  Society,  Collections.,  i.  245. 

^  Chalmers,  Revolt.,  ii.  11.  The  securing  of  a  commission  was  often  a 
very  expensive  process.  Governor  Wentworth's  commission  for  New 
Hampshire  is  said  to  have  cost  more  than  ^^300,  part  of  which,  at  least,  was 
spent  in  getting  the  commission  through  the  va-ious  formal  stages  after  the 
appointment  had  been  made.  Various  fees  had  to  be  paid  to  different 
functionaries.  Jonathan  Belcher,  who  was  appointed  governor  of  New 
Jersey  in  1747,  found  that  there  was  great  delay  in  the  preparation  of  his 
instructions,  and  on  inquiry  he  was  told  that  they  were  stopped  for  non- 
payment of  fees.  He  at  once  deposited  ^200,  and  "  this  unexpected  Supply 
set  the  Wheels  into  Motion."  See  New  Hampshire  Provi?icial  Papers, 
V.  929;  New  Jersey  Docu??ients,  vi.  422. 


48  APPOINTMENT,    TENURE,  EMOLUMENTS. 

were  often  made  on  more  rational  grounds,  since,  with  in- 
creasingly frequent  communication  between  the  colonies  and 
the  mother  country,  the  former  naturally  exerted  increased 
influence  upon  the  choices  made  by  the  crown.  Thus,  at  the 
beginning  of  the  eighteenth  century,  Governor  Spotswood 
complained  that  the  councillors  had  gained  an  undue  sense  of 
their  own  powers  from  their  success  in  securing  the  removal  of 
two  of  his  predecessors.  1  Furthermore,  the  practice  of  send- 
ing agents  to  represent  colonial  interests  naturally  had  its 
influence,  especially  since  these  agents  were  often  men  of  con- 
siderable importance.  There  is  one  instance,  indeed,  in  which 
the  agent  sent  to  present  the  complaints  of  the  colonists 
against  the  governor  was  himself  sent  back  with  a  governor's 
commission.  2 

The  appointment  of  colonists  to  the  governor's  chair  was  not 
altogether  uncommon  in  the  eighteenth  century.  Of  the  ten 
royal  governors  of  Massachusetts,  four  were  Massachusetts 
men.  New  Hampshire  men  also  frequently  received  the 
appointment  of  lieutenant-governor  in  that  colony,  and  after 
New  Hampshire  became  a  separate  government  both  her  gov- 
ernors were  chosen  from  among  the  residents  of  the  province. 
On  the  appointment  of  the  first  of  these,  Benning  Wentworth, 
who  had  been  a  member  of  the  provincial  House  of  Represent- 
atives, the  members  of  the  House  expressed  their  satisfac- 
tion with  the  choice  of  one  "whose  Interest  is  blended  with 
theirs. "  ^  So  in  New  Jersey,  the  first  governor  appointed,  after 
the  "  personal  union  "  of  that  province  with  the  government  of 
New  York  had  been  broken,  was  Lewis  Morris,  a  representa- 
tive colonist.  In  Virginia  and  the  other  colonies,  such  ap- 
pointments were  occasionally  made,  but  the  practice  was  not 
common.*     Though  the  conditions  on  which  colonial  appoint- 

1  Letters  of  Governor  Spotswood  (V'ngxmz.  Historical  Society,  Collections, 

\\.\  2S5. 

2  This  was  Governor  Belcher  of  Massachusetts,  who  had  represented  the 
assembly  in  their  case  against  his  predecessor  Burnet.  See  Chalmers, 
Revolt,  ii.  132. 

8  JVew  Hampshire  Provincial  Papers,  iv.  646,  v.  139. 

*  Governor  Dinwiddle  of  Virginia  was  welcomed  because  he  "formerly 


TENURE   OF  OFFICE.  49 

ments  were  made  were  hardly  calculated  to  secure  the  best 
results,  the  names  of  Spotswood  of  Virginia,  Sharpe  of  Mary- 
land, Morris  of  New  Jersey,  and  Hutchinson  of  Massachusetts 
suffice  to  show  that  some  provincial  governors  were  neither 
unscrupulous  nor  inefficient.  There  were  others,  too,  like 
Burnet  of  New  York  and  Massachusetts,  who  showed  an  honor- 
able willingness  to  make  sacrifices  for  what  they  conceived  to 
be  the  public  interest.^ 

The  governor's  tenure  of  office  may  be  considered  under  two 
aspects,  — that  defined  by  the  terms  of  his  commission  and  the 
practical  aspect  determined  by  actual  conditions.  His  legal 
tenure,  as  stated  by  the  commission,  was  during  the  king's 
pleasure, 2  though  to  this  general  rule  of  the  royal  governments 
there  was  one  striking  exception  in  the  first  century  of  the 
colonial  era.  In  1675  Thomas  Culpeper  received  a  commis- 
sion for  life  as  governor  of  Virginia;  this  commission,  how- 
ever, was  forfeited  for  disobedience  to  orders,  and  no  more 
royal  commissions  for  life  appear.^     Upon  the  general  prin- 

liv'd  amongst  Us  "  and  was  "  well  acquanted  with  the  Laws  and  Constitu- 
tion of  our  Country  "  :  Dinwiddle  Papers,  i    27. 

^  For  Burnet's  efforts  to  secure  the  establishment  of  a  post  at  Oswego 
by  considerable  personal  advances  which  were  never  fully  repaid,  see  New 
York  Dociiinents,  v.  81 8,  846. 

2  See  Bernard's  commission  for  New  Jersey,  1758,  §  27;  Smith,  History 
of  New  York,  228. 

3  Patent  to  Culpeper,  in  Hening,  Statutes,  ii.  565.  The  commission 
given  to  Lord  Delaware  by  the  Virginia  Company  in  1610  was  also  a  com- 
mission for  life  (Brown,  Genesis  of  the  United  States,  i.  375).  In  1683  the 
proprietors  of  East  Jersey  issued  a  commission  to  Robert  Barclay  as  gov- 
ernor for  life ;  and  at  the  same  time  a  deputy-governor  was  named  who  was 
empowered  to  hold  office  for  seven  years.  In  later  commissions  of  the  New 
Jersey  proprietors  the  term  was  stated  as  one  year,  or  until  some  other 
appointment  should  be  made  (^New  fersey  Documents,  i.  423,  ii.  87,  301). 
The  attempt  to  fix  definite  terms  of  office  appears  elsewhere.  For  example, 
the  rules  of  the  Virginia  Company  provided  that  all  colonial  commissions 
should  be  "onely  for  three  yeares  in  certaine,  and  afterwards  during  the 
Companies  pleasure  " ;  and  that  no  governor  should  in  any  case  hold  his 
office  more  than  six  years  ("  Orders  and  Constitutions  of  the  Virginia  Com- 
pany," in  Force,  Tracts,  iii.  No.  6,  p.  19).  In  the  propositions  issued  by 
the  proprietors  of  Carolina  in  1663,  it  was  provided  that  governors  should 
hold  office  for  terms  of  three  years ;  but  the  propositions  were  never  carried 

4 


50  APPOINTMENT,    TENURE,  EMOLUMENTS. 

ciple  that  the  governor's  tenure  depended  on  the  king's 
pleasure  there  was  a  formal  limitation,  imposed  by  English 
custom,  to  the  effect  that  all  patents  terminated  on  the  death 
of  the  king.  By  acts  of  7  &  8  William  III.  and  i  Anne,  it 
was  provided  that  commissions  should  continue  for  six  months 
after  the  demise  of  the  sovereign.  At  the  expiration  of  that 
time  the  governor's  authority  lapsed,  unless  a  new  commis- 
sion was  issued.  1  In  any  case,  the  authority  of  the  governor 
ceased  on  the  arrival  of  his  successor  and  the  publication  of 
the  latter's  commission.^ 

What,  then,  was  the  real  duration  of  the  governor's  service 
as  affected  by  the  actual  facts  of  the  political  situation  in 
which  he  was  placed.-*  There  were  many  circumstances  that 
tended  to  make  his  position  insecure.  In  the  first  place,  the 
same  sort  of  influence  that  gave  him  his  office  might  be  used 
with  equal  effect  by  other  men :  Douglass,  a  contemporary 
writer,  speaks  of  the  governor's  position  as  "very  slippery," 
of  his  liability  to  be  called  to  account  "upon  frivolous  and 
sometimes  false  complaints,"  and  to  be  "superseded  by  some 
expectant  at  court.  "^  Moreover,  party  changes  in  England 
were  not  without  interest  for  governors  in  the  colonies.  A 
letter  written  by  Lewis  Morris,  governor  of  New  Jersey  in 
1742,  shows  his  anxiety  lest  a  probable  change  of  ministry 
might  affect  his  position.* 

The  removal  of  a  governor  for  real  misconduct  was  never  an 
altogether   easy  task,   though  the  colonial   agencies    made  it 

out  ("  Proposals  of  the  Proprietors,"  in  Rivers,  Sketch  of  the  History  of 
South  Carolitia,  335). 

1  Clialmers,  Opinions,  234  seq. 

2  Ibid.,  243. 

3  William  Douglass,  Summary  of  the  First  Planting  of  the  British 
Settlements  in  North  America,  i.  474. 

^  He  thought  it  "  not  unnaturall  to  suppose  that  those  employ'd  by  the 
last  [ministry]  may  not  be  look'd  on  in  the  most  favourable  light  by  their 
successors,  and  amongst  the  rest  such  a  reptile  as  my  selfe,  (tho'  now  tread- 
ing on  the  verge  of  life  &  far  from  being  an  advocate  for  arbitrary  power), 
may  be  remov'd  to  make  way  for  some  new  man  that  will  think  this  govern- 
ment worth  soliciting  for  " :  Morris  Papers  (New  Jersey  Historical  Society, 
Collections,  iv.),  145. 


REMOVALS.  51 

possible  for  the  people  of  the  provinces  to  make  themselves 
heard  more  effectively  than  would  otherwise  have  been  the 
case.  As  has  been  seen,  Governor  Burnet  of  Massachusetts 
was  succeeded  in  office  by  the  agent  who  had  been  sent  to 
represent  the  assembly  in  its  controversy  with  the  governor  ;i 
and,  though  Governor  Burnet  died  in  office,  the  incident  illus- 
trates well  the  influence  of  some  of  these  colonial  agents. 
Belcher  himself,  Burnet's  successor,  had  occasion  later  to 
realize  the  influence  which  an  agent  might  bring  to  bear 
against  a  distant  governor,  inasmuch  as  his  own  removal  was 
due  very  largely  to  the  work  of  the  New  Hampshire  agent. ^ 
Chalmers  deplored  the  extent  to  which  this  influence  was  used 
against  unpopular  governors.  ^  There  can  be  no  doubt  that  it 
was  often  very  effective.  During  the  long  periods  in  which 
the  royal  and  the  colonial  interests  were  in  almost  constant 
conflict,  when  it  was  almost  impossible,  without  a  violation  of 
instructions,  for  a  governor  to  get  his  salary  or  the  necessary 
grants  for  the  conduct  of  government  or  even  the  military 
supplies  demanded  by  the  crown,  his  position  was  trying  in 
the  extreme. 

Under  these  circumstances,  one  would  naturally  have  ex- 
pected a  brief  and  uncertain  tenure.  There  are  instances, 
however,  which  tell  against  this  general  view.  Massachusetts, 
during  the  eighty-two  years  from  1692  to  1774,  the  period  of 
the  Province  charter,  had  ten  governors  with  an  average  term 
of  eight  years. ^  North  Carolina,  during  the  thirty-four  years 
of  the  royal  government  up  to  the  passage  of  the  Stamp  Act, 
had  only  three  governors  with  an  average  term  of  eleven  years. 
New  Hampshire,  after  its  separation  from  Massachusetts  in 
1 741,  had  but  two  governors,  the  first  serving  until  1767. 
These  terms,  however,  are  longer  than  the  usual  duration  of 

^  See  above,  p.  48. 

2  New  Hatnpshire  Provincial  Papers^  v.  915  seq. 

8  "Having  reduced  to  a  miserable  subservience  the  governors,  they, 
without  difficulty,  effected  their  recall,  by  those  arts,  which  popular  conven- 
tions know  how  to  use,  either  to  gratify  passion  or  to  extend  their  privi- 
leges " :  Chalmers,  Revolt^  i.  225. 

*  Two  of  these,  Phips  and  Burnet,  held  their  commissions  at  the  time  of 
their  deaths. 


52  APPOINTMENT,    TENURE,  EMOLUMENTS. 

the  governor's  service.  There  is  a  striking  reference  to  this 
instability  in  office  in  a  passage  in  the  history  of  Pennsylvania, 
once  erroneously  ascribed  to  Benjamin  Franklin:  "There  is  no 
Man,  long  or  much  conversant  in  this  overgrown  City  [London], 
who  hath  not  often  found  himself  in  Company  with  the  Shades 
of  departed  Governors,  doom'd  to  wander  out  the  Residue  of 
their  Lives,  full  of  the  agonizing  Remembrance  of  their  passed 
Eminence,  and  the  severe  Sensation  of  present  Neglect."^ 

A  governor  was  usually  assigned  to  a  single  province;  but 
to  this  general  rule  there  were  several  exceptions.  The  policy 
of  James  IL  included  not  merely  the  reduction  of  charter  and 
proprietary  governments  to  the  uniform  royal  type,  but  also  the 
consolidation  of  provinces.  Thus  the  commission  to  Andros 
in  1688  included  not  merely  New  England,  but  New  York  and 
New  Jersey.  This  unwieldy  province  fell  to  pieces,  however, 
with  the  overthrow  of  Andros;  and,  indeed,  the  attempt  to 
consolidate  the  colonial  governments  was  in  the  main  given 
up,  though  for  a  long  time  it  was  a  common  practice  to  organize 
what  may  be  called  "personal  unions,"  by  which  more  govern- 
ments than  one  were  assigned  to  a  single  governor.  The 
personal  unions  had  certain  advantages  from  a  military  point 
of  view,  a  circumstance  which  was  especially  important  in  the 
last  decade  of  the  seventeenth  century,  at  the  opening  of  the 
great  conflict  with  France  for  maritime  and  colonial  suprem- 
acy as  well  as  for  the  maintenance  of  the  European  political 
balance.  Thus,  in  1697  the  Earl  of  Bellomont  became  gover- 
nor of  Massachusetts,  New  York,  and  New  Hampshire  ;2  and 
the  appointments  to  Massachusetts  and  New  Hampshire  were 
combined  under  several  of  his  successors.  In  1702  the  gov- 
ernments of  New  York  and  New  Jersey  were  similarly  com- 
bined. Pennsylvania  and  Delaware  originally  constituted  but 
one  government;  but  the  lower  counties  on  the  Delaware  were 

1  Historical  Review  of  the  Constitution  and  Goverttment  of  Pennsyl- 
vania (1759),  77-  Sometimes  a  governor  after  his  removal  remained  in  the 
province  and  joined  the  opposition  (note  the  case  of  Keith,  Ibid.).  This 
essay,  though  not  written  by  Franklin,  seems  to  have  been  pubHshed  with 
his  sanction  and  cooperation.  Cf.  Franklin,  Works,  Bigelow  ed.,  Hi.  125- 
126,  note. 

2  New  York  Documents,  iv.  261. 


COMBINATION  OF  GOVERNMENTS.  53 

restive  under  this  arrangement,  and  finally  secured  from  Penn 
permission  to  organize  a  separate  legislature.  This  case  is 
different  from  those  just  mentioned,  in  that  the  two  provinces 
of  Delaware  and  Pennsylvania,  or  rather  perhaps  the  two 
divisions  of  the  one  province,  had  a  common  executive,  with  a 
joint  council  for  both  divisions. ^  In  the  other  provinces  above 
referred  to,  the  union  was  merely  personal :  the  same  person 
who  held  the  office  of  governor  in  one  province  held  also  the 
entirely  distinct  office  of  governor  in  the  other. ^ 

This  combination  of  governments  proved  awkward  in  prac- 
tice; for  the  governor  maintained  his  regular  residence  in 
the  larger  province,  and  naturally  his  long  periods  of  absence 
from  the  smaller  colony  led  to  grave  difficulties.^  The  people 
of  New  Jersey,  for  example,  felt  strongly  that  their  province 
was  neglected  by  its  absentee  governors.'*  In  New  Hampshire 
also  serious  irregularities  arose.  ^  Indeed,  in  both  colonies  the 
situation  gave  rise  to  complications  in  the  relations  between 
governor  and  lieutenant-governor,  especially  in  regard  to  the 
powers  that  might  properly  be  exercised  by  the  lieutenant- 
governor  in  the  absence  of  the  governor.^  The  chief  diffi- 
culty of   the  system,   however,   lay   in  the  fact  that  adjacent 

^  Charter  of  1701,  in  Poore,  Charters  and  Constitutions,  ii.  1536;  Penn- 
sylvania Records,  iii.  18,  143,  253,  254. 

2  This  experiment  was  also  tried  for  a  time  in  the  Carolinas  (see  com- 
missions of  1691,  1693,  1694,  and  1702).  The  governor,  who  resided  in  one 
province,  might  appoint  a  deputy  in  the  other.  In  1712  the  two  govern- 
ments were  separated.  See  South  Carolina  Historical  Society,  Collections, 
i.  128,  134,  136,  212;  North  Carolina  Records,  i.  554,  841. 

^  Governor  Cornbury  of  New  York  is  said  to  have  been  absent  from 
New  Jersey  nine  months  of  the  year  ("  Address  of  the  New  Jersey 
assembly,"  New  Jersey  Doctiments,  iii.  242).  Governor  Dudley  of  Massa- 
chusetts and  New  Hampshire  resided  in  Boston,  and  visited  New  Hamp- 
shire for  only  comparatively  short  periods  (Chalmers,  Revolt,  i.  325). 

4  New  Jersey  Documents,  iii.  242-243,  iv.  132-133. 

6  "  Having  determined  to  reside  at  Boston,  the  metropoHs  of  the  most 
powerful  colony,  he  [Governor  Dudley]  adopted  a  mode  of  administration 
for  New  Hampshire,  which  promoted  his  profit  without  disturbing  his  ease. 
...  In  the  principal  Independents  ...  he  placed  all  power;  as  he  allowed 
them  to  govern  themselves,  they  procured  for  him,  in  return,  a  salary  of  one 
hundred  and  fifty  pounds  a  year  "  (Chalmers,  Revolt,  i.  325-326). 

®  See  below,  pp.  56,  57. 


54  APPOINTMENT,    TENURE,  EMOLUMENTS. 

provinces,  like  New  York  and  New  Jersey,  or  Massachusetts 
and  New  Hampshire,  often  had  interests  at  variance  with  each 
other.  The  New  Jersey  agent,  in  arguing  for  an  independent 
New  Jersey  government,  declared  that  a  governor  deriving  his 
chief  support  from  New  York  could  not  be  induced  to  pass 
acts  affecting  unfavorably  New  York  interests.^  The  people 
of  New  Hampshire  felt  that  Governor  Belcher,  in  a  contro- 
versy between  the  two  provinces  in  regard  to  boundaries,  had 
shown  great  partiality  to  the  larger  province,  and  had  grossly 
abused  his  powers  as  governor  of  New  Hampshire  in  order  to 
secure  a  decision  favorable  to  Massachusetts.^ 

The  feeling  in  New  Jersey  and  New  Hampshire  finally 
became  too  strong  to  be  disregarded.  On  the  death  of  Gov- 
ernor Cosby  in  1736,  New  Jersey  presented  several  addresses 
praying  for  a  separate  government;  and  in  1738  Lewis  Morris, 
formerly  chief -justice  of  New  York,  was  made  governor.^  In 
1 741  Governor  Belcher  of  Massachusetts  was  removed,  and  in 
the  same  year  a  separate  governor  was  appointed  for  New 
Hampshire.*  From  this  time  on  the  policy  of  personal  unions 
was  abandoned. 

The  newly-appointed  governor,  on  his  arrival  in  the  province, 
published  his  commission,  and  then  took  the  necessary  oaths 
in  the  presence  of  the  council.  The  proceedings  were  some- 
times attended  with  considerable  ceremony.  Sir  William 
Phips,  the  first  governor  of  Massachusetts  under  the  new 
charter,  was  conducted  to  the  town-house  by  the  military  com- 
panies of  Boston  and  Charlestown,  and  by  the  magistrates, 
ministers,  and  principal  gentlemen  of  Boston  and  adjacent 
towns. ^  The  oaths  prescribed  for  the  governor  were  numerous 
and  of  various  kinds.  The  first  was  the  simple  oath  of  office. 
The  following  was  the  oath  administered  to  the  governor  of 
New   Hampshire   in   1742:  "You  .   .   .   Swear  that   you   will 

^  New  Jersey  Documents,  v.  453. 

^  See   accounts  in  New  Hampshire  Provincial  Papers,  v.   915-921 ; 
Hutchinson,  History  of  Massachusetts,  ii.  349-350. 
8  New  Jersey  Doctiments,  v.  435,  441,  450,  vi.  i. 

*  New  Hampshire  Provincial  Papers,  v.  135,  915-921. 

*  Hutchinson,  Histoty  of  Massachusetts,  ii.  20. 


PROVISION  FOR    VACANCIES.  55 

faithfully  &  Truely  perform  the  Trust  reposed  in  you  by  his 
Majesty's  Comission  and  that  you  will  administer  Justice 
equally  and  impartially  in  all  cases  that  shall  come  before  you 
in  judgment.  So  help  you  God."  Other  oaths  had  to  do 
with  the  governor's  duties  to  the  central  colonial  administra- 
tion, his  allegiance  to  the  crown,  and  his  ecclesiastical  obli- 
gations. He  was  required  to  take  the  oaths  of  allegiance  and 
supremacy,  to  declare  his  fidelity  to  the  Protestant  succes- 
sion, and  to  deny  that  there  was  any  transubstantiation  in  the 
sacrament  of  the  Lord's  Supper.  Finally  he  swore  to  enforce 
the  various  acts  of  Parliament  relating  to  the  colonies,  espe- 
cially the  navigation  laws.^ 

Ordinarily  the  governor  was  expected  to  reside  within  the 
province.  Indeed,  in  1680  an  order  in  council  was  issued  for- 
bidding colonial  governors  to  absent  themselves  from  their 
provinces  without  leave  ;2  and  it  afterward  became  customary 
to  insert  in  the  governor's  instructions  a  clause  forbidding 
him  to  come  to  Europe  without  special  permission  from  the 
crown.  ^ 

Careful  provision  was  made  for  the  temporary  succession  in 
case  of  the  governor's  death  or  departure  from  the  province. 
The  earlier  practice  had  been  by  no  means  uniform;*  but 
gradually  a  rule  was  adopted  for  the  royal  governments,  pro- 
viding that,  if  the  governor  died  or  left  the  province,  his  place 
was  to  be  taken  by  the  lieutenant-governor,  or  in  some  cases 

^  New  Hampshire  Provincial  Papers,  v.  592.  See  also  commission 
to  Bernard  of  New  Jersey,  1758,  §  3;  and  instructions  to  Allen  of  New 
Hampshire,  1692,  p.  63;  to  Cornbury  of  New  Jersey,  1702,  p.  490;  to 
Dudley  of  Massachusetts,  1702,  p.  102;  to  Dobbs  of  North  Carolina,  1754, 
§  2;  to  Dunmore  of  Virginia,  1771,  §  2. 

2  Doyle,  English  in  America,  i.  349.  The  proposed  Virginia  charter 
of  1676  insisted  either  on  residence  in  the  colony  or  on  the  appointment  of 
a  deputy  (Hening,  Statutes,  ii.  532). 

^  Instructions  to  Bernard,  §89;  to  Dunmore,  §  89;  to  Dobbs,  §  130. 

*  According  to  the  first  royal  commissions  in  Virginia,  the  councillors 
were  to  elect  a  substitute  (see  commissions  of  Yeardley  and  Harvey,  in 
Rymer,  Fcedera,  xviii.  311,  980).  This  rule  was  at  first  followed  in  the 
Carolinas  (Ludwell's  instructions,  1691,  §  34).  The  early  Maryland  gov- 
ernors were  allowed  to  appoint  their  own  deputies  (Calvert's  commission, 
1637,  in  Bozman,  History  of  Maryland,  ii.  572  ;  cf.  Ibid.,  293-307). 


$6  APPOINTMENT,    TENURE,   EMOLUMENTS. 

by  a  commander-in-chief.  In  the  absence  of  any  lieutenant- 
governor  or  commander-in-chief,  the  rule  as  at  first  laid  down 
provided  that  the  council  as  a  whole  should  assume  the  govern- 
ment;^ but  this  plan  was  found  to  have  its  disadvantages,  and 
therefore  in  1707  Queen  Anne  issued  a  new  general  instruc- 
tion providing  that  thereafter  the  senior  councillor  should 
execute  the  commission  in  the  governor's  absence.^  How  far 
this  instruction  was  carried  out  is  not  quite  clear;  Chalmers 
says  that  even  in  the  royal  governments  it  was  not  universally 
enforced  until  the  reign  of  George  III.^  It  is  certain  that  in 
the  proprietary  province  of  Pennsylvania  the  council  continued 
to  act  as  a  whole  in  the  absence  of  the  governor;'*  and  that  in 
at  least  one  of  the  royal  governments  the  royal  order  met  with 
direct  resistance.  The  Massachusetts  council  held  that  the 
rights  of  government,  in  the  absence  of  the  governor  and  lieu- 
tenant-governor, were  vested  in  the  council  as  a  whole;  and  it 
therefore  disregarded  the  instruction  which  transferred  its 
right  to  the  senior  councillor.^ 

The  lieutenant-governor  received  a  commission  defining 
very  briefly  the  powers  and  duties  of  his  office.^  He  was 
authorized  to  exercise  all  the  governor's  powers  in  the  latter' s 
absence,  subject  to  instructions  and  orders  from  the  crown,  and 
subject  also  to  the  orders  and  directions  of  the  governor.  In 
ordinary  cases  these  provisions  furnished  very  little  matter  for 
dispute;  but  in  the  case  of  the  so-called  personal  unions,  which 
involved  long  absences  on  the  part  of  the  governor  from  one  or 
the  other  of  his  two  governments,  they  gave  rise  to  very  serious 

1  Commission  to  Cornbury  of  New  Jersey,  1702,  p.  499;  Massachusetts 
Charter  of  1691,  in  Poore,  Charters  atid  CoHstitiitions,  i.  942. 

2  Royal  order  of  May,  1707,  SewalVs  Diary,  iii.  33.  Cf.  Dudley's 
instructions  of  1702,  p.  T15;  commission  to  Bernard  of  New  Jersey,  1758, 
§  26.     Members  ex  officio  only  were  excluded. 

8  Chalmers,  Revolt,  \.  410. 

4  Pennsylvania  Records,  iv.   47 ;   Statutes  at  Large  of  Pennsylva7iia 

(1896),  ii.   190,  436- 

5  Hutchinson,  History  of  Massachusetts,  ii.  191  ;  SewalVs  Diary,  iii. 

35-38- 

6  See  commission  to  Wentworth  of  New  Hampshire,  1717,  in  Appendix 

A  belos?/. 


LIEUTENANT-GO  VERNORS.  5  7 

difficulties,  which  may  best  be  illustrated  by  specific  examples. 
Lord  Cornbury,  governor  of  both  New  York  and  New  Jersey, 
spent  the  larger  part  of  the  year  in  New  York,  and  hence  was 
absent  from  his  province  of  New  Jersey  during  that  time. 
The  question  arose  as  to  whether  his  absence  was  of  the  same 
nature  as  that  for  which  the  commission  provided,  by  stating 
that  the  lieutenant-governor  should  exercise  the  authority  of 
the  governor  during  the  latter' s  absence  from  the  province. 
Cornbury  held  that  while  he  was  in  New  York,  the  lieutenant- 
governor  had  no  power  to  act  in  New  Jersey,  basing  his  argu- 
ment upon  the  fiction  that  while  he  was  present  in  either  of 
his  provinces  he  was  to  be  regarded  as  legally  present  in  both.^ 
As  Cornbury  was  strong  enough  to  enforce  his  views,  the 
lieutenant-governor  became  a  mere  nonentity,  and  the  province 
was  reduced  to  the  necessity  of  being  without  a  resident  execu- 
tive head  during  the  greater  part  of  the  year.''*  Precisely  the 
same  dispute  arose  in  New  Hampshire,  where  Governor  Shute 
claimed  that  during  his  absence  from  New  Hampshire  he  was 
still  entitled  to  exercise  his  full  powers.  In  this  case  the 
home  government  seems  to  have  sided  with  the  governor,  for 
the  refractory  lieutenant-governor  was  removed  and  a  successor 
appointed.^  The  same  difficulty  recurred  when  Jonathan 
Belcher  was  governor  of  New  Hampshire  and  Massachusetts; 
and  the  home  government  again  seems  to  have  taken  the  gov- 
ernor's side.*  The  question  ceased  to  have  practical  impor- 
tance only  when  independent  governors  were  assigned  to  New 
Jersey  and  New  Hampshire. 

In  exceptional  circumstances  the  lieutenant-governor  re- 
mained in  charge  of  the  province  for  considerable  periods  of 
time.  In  Virginia,  for  example,  titular  governors  were  at 
different  times  appointed,  who  held  the  title  and  part  of  the 
emoluments  of  the  office,  while  they  left  the  actual  conduct  of 

1  New  Jersey  Docufnetits,  iii.  109-111. 

2  Ibid.,  242  seq. 

8  New  Ha7npshire  Provincial  Papers,  iii.  704  seq.  Lieutenant-Governor 
Wentworth  says  that  he  was  empowered  by  the  governor  to  dissolve  the 
assembly  "if  he  saw  meet"  {Ibid.,  iv.  44). 

*  Ibid.,  669. 


58  APPOINTMENT,    TENURE,   EMOLUMENTS. 

government  in  the  hands  of  a  resident  lieutenant-governor. 
The  salary  actually  received  by  this  resident  governor  was, 
sometimes  at  least,  the  result  of  a  bargain  between  him  and 
his  nominal  superior  in  office,  though  fortunately  this  trading 
was  not  common  in  the  continental  colonies.^ 

Except  as  a  possible  temporary  successor  of  the  governor, 
the  lieutenant-governor  had  not  regularly  any  independent 
powers;  in  some  provinces  indeed,  especially  in  the  smaller 
ones,  there  was  often  no  lieutenant-governor  at  all.^  Some- 
times, but  by  no  means  always,  the  lieutenant-governor  was  a 
member  of  the  council  or  its  president  ;3  but  in  general  his 
office  seems  to  have  been  one  of  comparatively  little  impor- 
tance. It  is  therefore  hardly  strange  that  such  an  officer, 
without  any  definite  political  sphere,  should  at  times  have 
been  a  discordant  element  in  the  provincial  constitution,  as 
was  in  fact  often  the  case.* 

When,  in  the  absence  of  both  governor  and  lieutenant-gover- 
nor, the  government  was  assumed  by  the  council  or  by  the 
senior  councillor,  certain  constitutional  limitations  were  im- 
posed.     For  example,  the  instructions  forbade  this  provisional 

1  In  1704  the  Earl  of  Orkney  was  appointed  titular  governor  of  Virginia, 
and  held  this  office  for  more  than  thirty  years.  The  Heutenant-governor  for 
the  time  being  made  special  agreements  with  the  earl  for  a  division  of  the 
salary  and  other  emoluments  of  the  office.  Orkney  was  succeeded  in  this 
titular  office  by  Lord  Albemarle,  and  by  Lord  Loudoun,  the  unlucky  British 
commander  in  the  French  and  Indian  War.  In  1768,  Lord  Botetourt  was 
appointed  governor.  He  took  up  his  residence  in  the  province ;  whereupon 
the  line  of  titular  governors  of  Virginia  came  to  an  end  (Campbell,  History 
of  Virginia,  375,  556:  Oldmixon,  British  E;npire  in  America,  i.  400  ;  Din- 
widdie  Papers,  \.  383,  ii.  2,  41 1  ;  Bancroft,  History  of  the  United  States,  iii. 
298).  A  similar  case  occurred  in  Maryland,  where,  though  "  Franks  was 
appointed  governor,  Hart  was  continued  in  command"  (Chalmers,  Revolt, 

ii.  66-67). 

2  In  the  proprietary  colony  of  Pennsylvania,  the  proprietor  himself  was 
the  governor-in-chief.  His  representative  in  the  colony  usually  bore  the 
title  of  deputy-governor  or  lieutenant-governor,  though  he  was  commonly 
referred  to  as  governor.     See  Proud,  History  of  Pennsylvania,  ii.  5. 

3  A^ew  Hampshire  Provincial  Papers,  iii.  661,  674. 

*  Notice,  for  example,  in  New  Jersey,  Governor  Belcher's  feeling  about 
Lieutenant-Governor  Pownall:  New  Jersey  Documents,  viii.  (2)  190.  See 
also  New  Hampshire  Provincial  Papers,  iv.  669. 


THE   GOVERNOR'S  SALARY.  59 

government,  without  a  special  order,  to  pass  any  acts  not 
immediately  necessary,  or  to  dissolve  the  assembly,  or  to 
remove  any  officers  without  the  consent  of  at  least  seven 
councillors.  In  any  of  these  cases,  immediate  notice  was  to  be 
given  to  the  home  government.  ^  The  exclusion  of  the  Penn- 
sylvania council  from  any  direct  participation  in  legislation 
seems  to  have  held  good  even  in  the  absence  of  the  governor.  ^ 

The  governor's  support  was  provided  in  a  variety  of  ways; 
but  the  most  important  part  of  his  income  was  his  salary.  At 
the  close  of  the  French  and  Indian  War,  this  salary  was 
dependent  on  temporary,  and  often  annual,  grants  of  the 
assembly,  though  to  this  general  rule  four  important  excep- 
tions must  be  noted.  In  Virginia  and  Maryland  the  assem- 
blies had  been  induced  to  make  permanent  grants  to  the  crown 
and  the  proprietor  for  the  support  of  the  provincial  govern- 
ment, and  had  thus  lost  their  power  to  determine  the  gover- 
nor's salary.3  j^  North  Carolina,  both  under  the  proprietors 
and  under  the  crown,  the  salary  was  paid  out  of  the  somewhat 
uncertain  and  fluctuating  quit-rent  revenues  of  the  province.* 
In  Georgia,  the  youngest  of  the  colonies,  the  provincial  estab- 
lishment was  maintained  by  the  government  in  England.^ 
This  is  a  summary  statement  of  the  results  of  a  long  and  bitter 
controversy  over  the  question  as  to  whether  salary  grants 
should  be  temporary  or  permanent,  a  question  of  the  utmost 
importance,  involving  the  relations  of  the  governor  to  the 
assembly  on  the  one  hand,  and  to  the  home  government  on  the 

1  See  instructions  to  Bernard  of  New  Jersey,  1758,  §  90;  to  Dobbs  of 
North  Carolina,  1754,  §  131  :  to  Dunmore  of  Virginia,  1771,  §  90. 

2  Penttsylvatiia  Records,  iv.  47. 

8  For  Virginia,  see  Hening,  Statutes,  ii.  466,  iii.  344,  490.  For  Mary- 
land, see  Bacon,  Laws,  1692,  ch.  4,  and  1704,  ch.  42;  McMahon,  History  of 
Maryland,  i.  17S-180.  The  governor  seems  also  to  have  received  special 
grants  (Bacon,  Laws,  1747,  ch.  25). 

^  See  instructions  to  the  receiver-general,  171 2,  in  Hawks,  History  of 
North  Carolina,  ii.  402;  Chalmers,  Revolt,  ii.  165,  195-196;  North  Carolina 
Records,  iii.  295,  iv.  164,  v.  20,  T],  114,  788. 

5  Stokes,  Constitution  of  the  British  Colonies,  139.  Cf.  Jones,  Histo7y 
of  Georgia,  i.  511,  ii.  78;  and  schedules  of  appropriations  for  salaries  (con- 
taining no  provision  for  governor's  salary),  in  Jones,  Colonial  Acts  of 
Georgia,  230,  250  seq. 


6o  APPOINTMENT,    TENURE,  EMOLUMENTS. 

other.^  The  history  of  this  issue  may  properly  be  considered 
later  in  connection  with  the  systematic  study  of  the  mutual 
relations  of  governor  and  assembly. 

The  amount  of  the  governor's  salary  varied;  and  it  is  often 
difficult  to  estimate  with  the  slightest  approach  to  accuracy  the 
real  value  of  amounts  that  are  stated  in  currency  in  various 
stages  of  depreciation.  The  largest  salary  was  perhaps  that 
received  by  the  governor  of  Virginia,  who  was  allowed  ;£200O 
out  of  the  duty  of  two  shillings  per  hogshead  levied  on  tobacco.  ^ 
The  governor  of  New  York  in  1766  received  a  grant  of  ;;^2000.^ 
In  the  other  colonies  the  salaries,  as  a  rule,  were  ;i^iooo  or 
less  in  sterling  money,  though  they  are  often  stated  at  much 
higher  rates  in  the  depreciated  colonial  currency.* 

In  addition  to  the  salary,  the  governor  had  various  other 
sources  of  income.     The  most  important  of  these  were  perhaps 

1  For  results  in  New  York,  Massachusetts,  and  New  Hampshire,  see 
below,  ch.  ix.  For  Pennsylvania,  see  Proud,  History  of  Ptnnsylvania, 
ii.  32  ;  Pennsylvania  Records,  ii.  492,  iii.  174;  Votes  of  Pennsylvania,  v.  18, 
35.  For  South  Carolina,  see  Chalmers,  Revolt,  ii.  168-174;  South  Caro- 
lina Historical  Society,  Collections,  ii.  135 ;  Cooper,  Statutes,  iv.  63,  137. 
For  New  Jersey,  see  Allinson,  Acts  of  Assembly,  chs.  180,  183,  214,  228, 
238,  249,  252,  262,  274 ;  Belcher's  answers  to  queries  of  the  Board  of  Trade, 
New  fersey  Documents,  viii.  (2)  86;  cf.  also  Ibid.,  vi.  443,  445,  ix.  384. 

2  See  instructions  to  Dunmore,  1771,  §  88. 

'  New  York  fournal  of  Assembly,  ii.  791,  810.  For  Maryland,  see 
Sharpe's  Correspondence,  Maryland  Archives,  vi.  433,  ix.  47.  For  North 
Carolina,  see  Colonial  Records,  iv.  164,  585,  v.  20,  jj.  In  North  Carolina 
the  governor's  salary  varied  from  ^700  to  ^1000;  but  it  was  often  collected 
with  extreme  difficulty,  if  collected  at  all.  For  Georgia,  see  Jones,  History 
of  Georgia,  i.  511,  ii.  78.  The  salary  here  was  at  first  ^600,  and  later 
;^iooo,  with  the  advantage  of  being  secure  and  not  dependent  on  the  favor 
of  the  assembly. 

*  In  South  Carolina  the  salary  for  1744  was  ;^5oo,  with  an  allowance  of 
_£ioo  for  house  rent.  The  same  salary  was  given  in  1766.  The  amounts 
recorded  in  1758  and  1760  —  ;^35oo,  with  ^700  for  house  rent  —  are  evi- 
dently stated  in  the  depreciated  currency  (see  South  Carolina  Historical 
Society,  Collections,  \\.  189,  287;  Cooper,  Statutes,  iv.  63,  137).  Governor 
Shirley  of  Massachusetts  received  ^1300  per  annum  from  1754  to  1756.  In 
1748  he  had  refused  ^1900,  on  the  ground  that  it  was  not  the  equivalent  of 
the  ;{^looo  sterling  required  by  his  instructions  ;  and  he  finally  succeeded  in 
getting  ;^24oo  in  the  colonial  currency  (^Massachusetts  Province  Laws,  iii. 
450-454,  and  1754-5,  ch.  6  ;  1755-6,  ch.  5). 


FEES,  AND   OTHER  PERQUISITES.  6l 

the  fees,  which  were  collected  on  a  great  variety  of  occasions. 
The  character  of  these  fees  may  best  be  illustrated  by  a  specific 
instance.  In  1748  the  New  Jersey  assembly  passed  an  act 
fixing  the  governor's  fees,  among  whidh  were  fees  for  marriage 
licenses,  for  letters  of  administration,  for  certificates  of  vessels, 
for  certificates  to  persons  desiring  to  go  beyond  sea,  for 
licenses  to  purchase  land  of  the  Indians,  for  bills  of  health 
when  required,  for  putting  the  governor's  seal  to  a  township 
patent,  for  attorneys'  licenses,  and  for  certain  judicial  pro- 
ceedings in  error.  The  amounts  varied  from  the  three  shil- 
lings required  for  a  writ  of  error,  to  the  twenty  shillings 
collected  for  every  attorney's  license  to  practise;  the  marriage 
license  fee  was  ten  shillings.^ 

In  the  beginning,  these  fees  seem  not  to  have  been  fixed  by 
law. 2  Many  of  them  were  apparently  regulated  simply  by 
"English  custom,"  a  vague  limitation  clearly  liable  to  great 
abuse.  Thus  the  South  Carolina  assembly  complained  that 
public  officers  were  taking  much  larger  fees  than  were  "allowed 
by  act  of  Parliament  in  England  for  the  same  &  like  things, 
and  before  the  same  be  settled  by  act  of  Assembly  here.  "^ 
Although  the  governor  was  authorized,  with  the  advice  of  his 
council,  to  regulate  all  fees  of  provincial  officers,  yet  in  many 
cases,  as  will  be  seen,  the  assembly  took  the  matter  into  its 
own  hands  and  passed  acts  regulating  official  fees,  including 
those  of  the  governor.^ 

Among  other  perquisites  commonly  allowed  to  the  governor 
was  a  share  of   the  fines  and   forfeitures,  —  usually  a   third, 

1  Allinson,  Acts  of  Assembly^  ch.  210.  In  Virginia  there  were  fees  of 
twenty  shillings  for  a  marriage  license,  of  thirty-five  shillings  for  a  licensed 
"ordinary,"  and  of  forty  shillings  for  a  patent  of  naturalization  (Hening, 
Statutes,  iii.  397,  434,  445). 

2  The  New  Hampshire  law  of  4  George  II.  expressly  says  that  gover- 
nors' fees  have  not  previously  been  regulated:  Acts  and  Laws  of  New 
Hampshire  (1771),  ch.  108. 

8  Rivers,  Sketch  of  the  History  of  South  Carolina,  434. 

*  See  below,  pp.  1 18  seq.  Particular  fees  were  also  provided  for  by  partic- 
ular acts.  For  example,  the  Maryland  Naturalization  Act  of  1692  allowed 
the  governor  a  fee  of  ;^3  for  drawing  a  patent  of  naturalization  (Bacon, 
Laws,  1692,  ch.  6). 


62  APPOINTMENT,    TENURE,  EMOLUMENTS. 

sometimes  a  half.  For  example,  one  third  of  the  seizures  and 
forfeitures  of  vessels  for  violation  of  the  navigation  acts  went 
to  the  governor;^  and  similar  provisions  were  made  by  acts  of 
the  various  colonial  assemblies.^  The  most  peculiar  perquisite 
received  by  a  colonial  governor  was  one  which  seems  to  have 
been  a  curious  survival  of  the  old  feudal  right  of  escheat. 
This  was  a  provision  of  a  Delaware  law  of  the  twenty-fourth 
year  of  the  reign  of  King  George  II.,  by  which  the  property  of 
persons  dying  intestate  was  to  go  to  the  governor.^  The  gov- 
ernor also  frequently  received  from  the  assembly  presents  or 
grants  for  special  services.  Thus,  in  1742,  the  New  Hamp- 
shire assembly  voted  the  governor  a  present  of  ;£500  for  "  the 
charge  he  has  been  at  in  coming  to  the  Governmen',  &c."  *  In 
spite  of  royal  objections,^  the  practice  continued.  Governor 
Shirley  of  Massachusetts  was  granted  ;^25o  for  his  special 
services  with  the  Indians  on  the  Kennebec;^  and  on  Governor 
Pownall's  departure  for  England,  in  1760,  the  General  Court 
made  him  a  present  of  ;^200.'^ 

^  Statutes  at  Large,  iii.  268  (15  Car.  II.,  c.  7,  §  vi.);  vi.  117  (12  Geo.  II., 
c.  30,  §  V.)  ;  vii.  465  (4  Geo.  III.,  c.  15,  §  xlii.). 

2  The  following  list,  taken  from  the  Delaware  laws,  illustrates  the  general 
character  of  these  perquisites:  the  governor  received  forfeitures  for  neglect 
of  official  duty  ;  for  violation  of  quarantine  regulations ;  half  the  penalty  for 
speaking  in  derogation  of  courts  ;  the  fines  of  attorneys  practising  without 
licenses;  half  the  forfeitures  for  bribery;  and  half  the  penalty  of  ^200  in- 
curred by  sheriffs  who  served  more  than  three  years  {Laws  of  Delaware, 
1797,  i.  58,  98,  120,  133,  148,  165).  In  Virginia,  one  third  of  the  fines  for 
violation  of  the  provincial  duty  acts  commonly  went  to  the  governor  (Hen- 
ing,  Statutes,  iv.  147,  315). 

2  Laws  of  Delaware  (1797),  i.  295. 

*  New  Hasnpshire  Provincial  Papers,  v.  623.  In  1696  the  governor  of 
Maryland  was  at  his  own  request  presented  with  a  piece  of  land  in  Annap- 
olis. A  few  years  earlier  the  governor  had  received  from  the  assembly 
20,000  pounds  of  tobacco,  "  as  a  Token  of  their  love,  Respect  and  Esteeme 
for  his  hono"^"  (Bacon,  Laws,  1696,  ch.  24,  §  9;  Maryland  Archives, 
vii.  47). 

5  General  instruction  of  1703,  New  Hajnpshire  Provincial  Papers,  iii. 
251.     Cf.  instructions  to  Hunter  of  New  York,  §  28. 

®  Massachusetts  Province  Laws,  iii.  836. 

'  Ibid.,  iv.  336.  In  regard  to  a  gift  to  the  governor  of  North  Carolina, 
see  Colonial  Records,  iii.  49.     In  some  of  the  colonies  a  special  house  was 


THE   GOVERNOR'S  INCOME.  63 

The  amount  of  the   governor's   income    in   any  given  case 
cannot  be  exactly  stated.     The  governor  of  Virginia  was  per- 
haps the  most  fortunate  in  his  receipts,  at  least  when  he  was 
not   obliged  to  share   the   spoils  with    some   titular  governor 
across  the  sea.      Lieutenant-Governor  Dinwiddle  was  able  to 
allow  to  his  absentee  superior,   Lord  Albemarle,  the  sum  of 
^1665  ;  and  assuming,  as  on  the  whole  seems  reasonable,  that 
his  own  return  was  equal  to  that  of  other  governors,  the  total 
income  attached  to  the  office  may  have  been  over  ^2600,  and 
could  hardly  have  been  less  than  £2^00.^     The  only  estimate 
at   hand   for   Virginia   simply  gives   the   amount  as  between 
;^2000  and  ^3000.2     j^  a  few  cases,  however,  it  is  possible  to 
get  somewhat  more  definite  estimates.     Thus  Burnaby,  in  his 
"Travels,"^   gives   the   governor  of  Massachusetts  an  annual 
income,  including  perquisites,   of  about  £1^00  sterling.     An 
interesting  view  of  this  financial  aspect  of  the  governor's  office 
is  given  in  some  correspondence  between  Governor  Sharpe  of 
Maryland  and  his  brother,  William  Sharpe,  in  England.     The 
governor,  after  thanking  his  brother  for  his  efforts  to  procure 
for  him  the  government  of  New  York,  then  considers  prudently 
the   financial   returns   of   that   post.     It   seems   that  William 
Sharpe   had  been  informed  on  good  authority  that  the  New 
York  government  was  not  worth  more  than  ;^i6oo,  though  it 
was  commonly  rated  much  higher,  a  circumstance  apparently 
due  to  the  fact  that  the  profits  of  the  office  had  been  lessened 
by  the   diminution  in  the  amount  of    land    remaining   to   be 
granted  by  the  governor.      Governor  Sharpe  therefore  concluded 
that,  on  the  whole,  an  exchange  would  not  be  desirable,  espe- 
cially  as   the   New    York    governor  was    dependent   on   the 
assembly.* 

reserved  for  the  governor:  for  Virginia,  see  Hening,  Statutes,  iii.  285;  for 
South  Carolina,  Cooper,  Statutes,  ii.  380;  for  North  Carolina,  Martin, 
IredeWs  Public  Acts,  i.  55;  for  Maryland,  Bacon,  Zrtwi-,  1742,  ch.  24;  for 
New  York,  Rogers,  Concise  Account  of  North  America,  65. 

1  Dinwiddie  Papers,  ii.  534. 

2  History  of  the  British  Dominions  in  North  America,  pt.  ii.  132. 
8  Page  139. 

*  Sharpens  Correspondence,  i'I/«ry/<z«^v4r^/MV^j',  ix.  47-48,  85.     The  gov- 
ernment of  New  Jersey  seems  to  have  been  one  of  the  least  profitable.     It 


64  APPOINTMENT,    TENURE,   EMOLUMENTS. 

In  addition  to  these  sources  of  income,  it  is  probable  that 
unscrupulous  governors  found  other  ways  of  enriching  them- 
selves, sometimes  perhaps  without  resorting  to  direct  dis- 
honesty. ^  In  general,  then,  the  provincial  governors  seem  to 
have  been  quite  liberally  paid,  especially  if  we  compare  their 
incomes  with  those  of  our  present  State  governors.^ 

is  said  that,  while  New  Jersey  was  combined  with  New  York,  the  gover- 
nor's expenses  in  passing  from  one  province  to  the  other  equalled,  if  they 
did  not  exceed,  the  profits  of  the  New  Jersey  office  (letter  of  Lewis  Morris, 
New  Jersey  Documents,  v.  315).  Governor  Belcher  declared  this  govern- 
ment to  be  one  of  the  least  profitable  in  the  king's  gift  {Ibid.,  viii.  (2)  176); 
Burnaby  estimates  it  as  worth  from  £?iOO  to  ;^iooo  {Travels,  102). 

1  See  Belcher's  letter,  New  Jersey  Documents,  viii.  (2)  175. 

2  For  example,  the  estimated  income  of  the  royal  governor  of  Massa- 
chusetts  was  ;i^i3oo,  while  the  salary  of  the  governor  of  that  State  was  until 
very  recently  only  $5000.  In  the  absence  of  the  governor,  the  lieutenant- 
governor  or  the  president  of  the  council  was  regularly  to  receive  one  half  of 
the  salary  due  to  the  governor.  See  instructions  to  Bernard  of  New  Jersey, 
1758,  §  91  ;  to  Dobbs  of  North  Carolina,  1754,  §  132;  to  Dunmore  of  Vir- 
ginia, 1771,  §  91. 


CHAPTER  IV. 

THE  GOVERNOR  AS  THE  AGENT  OF  THE  HOME 

GOVERNMENT. 

The  provincial  governor  may  be  considered  from  two  distinct 
standpoints.  On  the  one  hand,  he  was  the  centre  of  the  local 
administration,  the  chief  executive  of  the  province;  on  the 
other  hand,  he  was  the  agent  of  a  higher  authority,  the  guar- 
dian of  interests  broader  than  those  of  his  single  province.  As 
will  be  seen  later,  it  was  not  always  easy,  or  even  possible,  to 
keep  in  harmonious  action  the  two  forces  of  local  feeling  and 
imperial  interest.  Indeed,  their  inevitable  conflict  constituted 
the  chief  difficulty  of  the  governor's  position,  and  gives  to  this 
study  henceforth  its  chief  interest.  Neither  aspect  of  the 
office  can  be  ignored;  in  fact,  even  for  purposes  of  discussion, 
it  is  not  easy  to  separate  the  one  from  the  other,  inasmuch  as 
there  was  hardly  an  important  function  exercised  by  the  gov- 
ernor in  which  he  did  not  act  in  both  of  these  characters. 
For  the  sake  of  convenient  classification,  however,  the  gov- 
ernor may  first  be  considered  primarily  as  the  agent  of  the 
central  authority  in  England. 

In  this  character,  his  first  duty  was  to  serve  as  a  means 
of  communication  between  the  province  and  the  home  gov- 
ernment. The  governor,  for  example,  recommended  to  the 
colonial  assembly  the  legislation  desired  by  the  crown  ;i 
furthermore,  he  was  expected  to  keep  the  home  government 
informed  on  a  wide  range  of  topics  connected  with  the  condi- 
tion of  the  province  and  with  its  administration.  The  instruc- 
tions to  Governor  Bernard  of  New  Jersey,  in   1758,  will  serve 

^  See  below,  p.  161. 
5 


66         GOVERNOR  AS  AGENT  OF  HOME   GOVERNMENT. 

as  a  convenient  illustration.  He  was  required,  first,  to  give 
full  information  regarding  the  natural  and  economic  conditions 
of  his  province,  including  a  map  of  the  country  with  an  exact 
description  of  the  territory  and  the  settlements  upon  it.  Sta- 
tistics of  population  and  some  account  of  commerce  and  indus- 
try were  also  required  of  him ;  and,  further,  the  wants  of  the 
province  were  to  be  pointed  out  and  means  of  improvement 
suggested.  Again,  it  was  important  that  the  home  government 
should  be  informed  as  to  the  military  strength  of  the  colonies. 
The  governor  was,  therefore,  to  send  an  inventory  of  the  mili- 
tary stores  in  the  province,  and  to  report  exactly  on  its  state 
of  defence,  giving  some  account  of  its  neighbors  and  its  rela- 
tions with  them,  whether  these  neighbors  were  Indians  or 
colonists  from  foreign  countries.  The  civil  administration 
was  another  subject  on  which  full  information  was  desired; 
therefore  the  accounts  of  the  public  revenue  and  lists  of  all 
officers  employed  at  the  public  charge  were  to  be  submitted  to 
the  government  in  England.  Moreover,  as  it  was  especially 
important  that  the  progress  of  legislation  should  be  exactly 
reported,  the  governor  was  required  to  transmit,  for  the 
approval  of  the  crown,  not  only  the  statutes  actually  passed, 
but  also  a  complete  record  of  legislative  proceedings  as  em- 
bodied in  the  journals  of  the  council  and  assembly.^ 

Here,  then,  was  provision  for  a  system  of  official  returns 
which,  if  faithfully  and  intelligently  made,  must  have  been  of 
great  value.  Several  valuable  reports,  it  is  true,  were  made 
by  various  governors  in  regard  to  the  condition  of  their  respec- 
tive provinces;  but  it  is  clear  that  on  the  whole  this  duty  of 
informing  the  home  government  was  very  much  neglected. 
In  1 7 12  Attorney-General  Edward  Northey  declared  that  the 
governors  did  not  observe  the  instruction  requiring  them  to 
send  home  all  laws  of  the  provincial  assemblies,  referring  in 
particular  to  one  case  in  which  an  act  of  1706  had  not  been 
received  till  1711.''^  In  1732  the  Board  of  Trade  made  a 
similar  complaint;^  and  in  1745  the  same  body  declared  that 

1  Instructions  to  Bernard  of  New  Jersey,  1758,  §§  28-31,  51,  68,  81-87. 

2  Chalmers,  Opinions^  348. 
8  Chalmers,  Revolt^  ii.  119. 


THE  DEFENDER   OF  IMPERIAL  INTERESTS.         67 

it  was  then  more  than  three  years  since  they  had  received  any 
letters  from  the  governor  of  North  Carolina,  and  that  he  had 
been  equally  negligent  in  sending  other  public  documents 
required.  These  complaints  were  repeated  three  years  later.  ^ 
The  system  of  reports  by  governors  was  certainly  very  far 
from  being  what  the  instructions  promised. 

The  provincial  governor  also  stood  in  certain  important  rela- 
tions to  the  officers  of  the  royal  service  in  the  colonies.  Of 
these  officers  there  was  a  large  number.  For  example,  the 
"Description  of  South  Carolina,"  attributed  to  Governor 
James  Glen,  enumerates  the  surveyor-general  of  land,  the 
receiver-general  of  quit-rents,  various  admiralty  officers,  and 
the  officers  of  the  royal  customs. ^  The  governor  was  of  course 
expected  to  support  these  officers  to  the  best  of  his  ability  ;  but 
he  was  also  required  to  suspend  them  from  office,  if  necessary, 
making  temporary  appointments  to  fill  vacancies  until  the 
royal  pleasure  should  be  known. ^ 

In  general,  then,  the  governor  was  the  regularly-constituted 
guardian  of  royal  and  British  interests.  It  was  his  duty,  not 
only  to  recommend  desired  legislation,  but  also  to  prevent  the 
passage  of  all  acts  injurious  to  the  interests  of  the  crown  and 
of  the  mother  country.*  He  was  to  cooperate  in  the  great 
military  operations  of  the  British  government,  and  as  far  as 
possible  to  enlist  the  assembly  of  his  own  province  in  support 
of  them.  Whenever  the  provincial  interest  and  the  imperial 
interest  —  if  we  may  use  these  phrases  —  should  come  into 
conflict,  his  controlling  obligation  was  to  be  his  duty  to  the 
crown.  The  traditional  view  in  regard  to  the  office  is  well 
illustrated  by  the  declaration  of  Governor  Benning  Wentworth 
to  the  New  Hampshire  assembly:  "My  firm  attachment  to  his 
Maj*y^  Person  family  &  Government  challenges  my  first  atten- 

1  North  Carolina  Records,  iv.  756,  870.  In  1742  the  Board  reported 
that,  during  the  years  1730-1738,  the  governor  of  New  York  had  sent  over 
only  the  minutes  and  the  laws  of  1730,  six  acts  of  1733,  ^"^  some  minutes 
of  the  council  for  1736  {Morris  Papers,  150). 

2  Carroll,  Historical  Collections,  ii.  221. 

3  See,  for  example,  instructions  to  Bernard  of  New  Jersey,  1758,  §  45- 
*  See  below,  pp.  162  seq. 


68         GOVERNOR  AS  AGENT  OF  HOME  GOVERNMENT. 

tion  —  my  next  Pursuit  shall  be  the  Peace  &  Prosperity  of  his 
Maj*^^  good  subjects  of  this  Province."^ 

In  addition  to  these  various  ways  in  which  the  governor 
acted  as  the  representative  of  the  king,  the  extension  of  parlia- 
mentary control  over  the  colonies  imposed  upon  him  a  gradu- 
ally increasing  number  of  functions  of  another  sort,  connected 
with  the  enforcement  of  acts  of  Parliament.  One  of  the  first 
navigation  acts,  the  well-known  statute  of  12  Charles  II., 
required  the  governor  to  take  an  oath  to  enforce  all  the  pro- 
visions of  the  act,  under  penalty  of  removal  from  his  office.  ^ 
Another  act  of  15  Charles  11.  gave  a  fuller  statement  of  the 
governor's  duties,  providing  that  persons  importing  goods  into 
the  colonies  were  to  give  their  names  and  inventories  to  the 
governor,  or  to  some  person  authorized  by  him,  and  that  no 
vessel  was  to  be  unloaded  until  the  master  had  notified  the 
governor  of  its  arrival  and  its  name,  and  given  evidence  that  it 
was  of  English  build.  To  other  penalties  attending  violations 
of  this  act,  was  added  one  for  disobedience  on  the  part  of  the 
governor,  by  which  he  was  to  be  permanently  disqualified  for 
service  as  a  royal  governor,  and  to  forfeit  ;!^iooo.^  The  act  of 
'J  %L  Z  William  III.  continued  these  penal  provisions  as  to 
removal  from  office  and  forfeiture  for  violation  of  the  statute. 
As  these  duties  were  imposed  on  proprietary  as  well  as  on 
royal  governors,  the  act  of  7  &  8  William  III.  required  that 
all  proprietary  governors  should  be  approved  by  the  crown; 
and  it  was  furthermore  customary  to  ask  of  them  special  secur- 
ity for  the  observance  of  the  acts  of  trade.* 

Duties  of  the  same  sort  were  imposed  by  various  acts  of 
Anne  and  the  Georges.  For  example,  the  act  of  23  George 
II.  prohibited  the  building  and  working  of  factories  of  iron 
and  steel  within  the  colonies,  and  directed  the  governor  to 
enforce  this  prohibition  and  to  close  all  such  establishments. 
For  failing  to  do  this,  he  was  to  forfeit  ;!^50o  and  to  be  per- 


1  New  Hampshire  Provincial  Papers,  v.  753. 

2  c.  18,  §  ii. :  Statutes  at  Large,  iii.  182. 
8  c.  7,  §  viii. :  Ibid.,  269. 

*  c.  22,  §  iv. :  Ibid.,  610;  North  Carolina  Records,  i.  509,  799. 


NEGLIGENCE   OF  GOVERNORS.  69 

manently  disqualified  for  holding  any  office  of  trust. ^  The  act 
of  4  George  III.  provided  for  a  new  oath  covering  all  duties 
imposed  by  previous  acts  of  Parliament. ^  These  various  direc- 
tions were  collected  and  systematized  in  a  separate  set  of  in- 
structions relating  to  trade,  enumerating  a  formidable  list  of 
acts  of  Parliament,  each  of  which  assigned  to  the  governor 
certain  specific  duties.^ 

It  was  only  with  great  difficulty  that  the  governor  could  be 
held  to  the  faithful  performance  of  these  duties.  Indeed, 
charges  of  negligence  in  regard  to  them  were  made  very  early. 
In  1696  Edward  Randolph  complained  that  the  governors  did 
not  enforce  the  navigation  laws.*  Dudley's  instructions  of 
1702  referred  to  abuses  in  the  plantation  trade  as  largely  due 
to  remissness  on  the  part  of  governors;^  and  there  is  evidence 
to  the  same  effect  in  the  severe  penalties  imposed  by  various 
statutes  for  neglect  of  these  duties.  Clearly,  then,  the  gov- 
ernor was  far  from  efficient  in  his  execution  of  parliamentary 
enactments. 

Before  leaving  this  subject,  it  is  necessary  to  consider  very 
briefly  the  British  system  of  colonial  administration,  so  far  as 
it  touches  the  governor.  During  the  eighteenth  century  the 
management  and  supervision  of  colonial  affairs  were  largely  in 
the  hands  of  the  so-called  Board  of  Trade,  the  origin  of  which 
may  be  traced  to  a  commission  issued  by  the  crown  in  1696, 
after  a  varied  experience  with  other  councils  and  committees 
charged  with  the  care  of  the  colonies.^     By  this  commission 

1  c.  29 :  Statutes  at  Large,  vi.  490. 

2  c.  15,  §  xxxix. :  Ibid.,  vii.  464. 

8  See,  for  example,  those  issued  to  Bernard  of  New  Jersey,  1758,  New 
Jersey  Doc7ime?its,  ix.  77. 

4  Maryland  Archives,  iii.  484,  v.  46;    New  Jersey  Documents,  ii.  116, 

131,  358. 

6  See  instructions,  p.  116.  The  same  complaint  was  made  in  regard  to 
other  acts  of  Parliament.  One  of  the  articles  of  Bernard's  instructions 
(§  24)  recited  the  failure  of  governors  to  enforce  fully  the  provisions  of  the 
act  fixing  the  rates  of  foreign  coins. 

6  See  Neill,  Virginia  Carolorum,  102;  Sainsbury,  Calendar  oj  State 
Papers,  Colonial  Series,  America  and  West  Indies,  1 574-1660,  pp.  198,  335, 
483,  492,  and  1 669-1 674,  p.  407. 


70         GOVERNOR  AS  AGENT  OF  HOME   GOVERNMENT. 

a  board  of  commissioners  was  organized  "for  promoting  the 
Trade  of  this  Kingdom  and  for  inspecting  and  improving  His 
[Majesties]  Plantations  in  America  and  elsewhere."  These 
commissioners  were  particularly  directed  to  examine  the  usual 
instructions  given  to  the  governors,  to  consider  and  report 
desirable  alterations,  to  take  an  annual  account  of  the  admin- 
istration of  governors,  to  hear  complaints  of  maladministration, 
and,  finally,  to  recommend  persons  for  appointment  as  gover- 
nors, councillors,  or  other  colonial  officers.^ 

Until  1752,  governors  were  directed  to  correspond  bath  with 
the  Board  of  Trade  and  with  one  of  the  principal  secretaries  of 
state; 2  but  in  that  year  a  new  order  was  issued,  by  which  the 
position  of  the  Board  of  Trade  was  somewhat  strengthened. 
Thenceforth  governors  and  other  provincial  officers  were  to  be 
appointed  on  the  nomination  of  the  Board  of  Trade,  which  was 
also  to  prepare  draughts  of  commissions  and  instructions;  and 
governors  were  directed  in  all  ordinary  matters  to  correspond 
with  the  Board  of  Trade  alone,  communicating  with  the  secre- 
taries only  on  matters  requiring  the  more  immediate  attention 
of  the  crown. 3  In  1766,  however,  this  order  was  reversed,  and 
the  governors  were  directed  as  before  to  correspond  with  the 
secretaries  of  state  as  well  as  with  the  Board  of  Trade.  Thus,* 
during  the  main  part  of  the  period  under  consideration,  the 
governor's  communication  with  the  central  administration  was 
carried  on  through  these  two  agencies,  and  in  ordinary  times 
chiefly  through  the  Board  of  Trade.  It  was  on  recommenda- 
tion of  this  body  that  he  received  his  appointment,  his  instruc- 
tions were  prepared  by  it,  and  he  was  subject  in  many  ways  to 
its  direction. 

It  seems  clear  that  this  system  of  colonial  administration 
was  inefficient.  The  most  important  criticism  upon  it  is  that 
of  Thomas  Pownall,  who  was  at  one  time  governor  of  Massa- 
chusetts,  succeeding  Shirley  and  preceding  Francis  Bernard. 

1  New  York  Documents^  iv.  145. 

2  See,  for  example,  instructions  to  Cornbury  of  New  Jersey,  1702,  §  102; 
to  Dudley  of  Massachusetts,  1702,  p.  115. 

3  New  York  Documents,  vi.  757. 
''  Ibid.,  vii.  848. 


THE  BOARD   OF   TRADE.  7 1 

Pownall  declared  that  the  weakness  of  the  system  was  largely- 
due  to  unwise  division  of  authority.  For  example,  the  Board 
of  Trade  which  had  the  general  supervision  of  the  colonial 
governors  had  not  the  right  of  final  appointment  or  dismissal. 
He  thought  that  the  administration  for  all  the  colonies  should 
have  been  exclusively  in  the  hands  of  a  single  department ;  ^ 
and  his  opinion  is  supported  by  the  evidence  already  given  as 
to  the  failure  of  governors  to  maintain  regular  correspondence 
with  the  Board  of  Trade. 

^  Pownall,  Administration  of  the  Colonies^  13  seq.     Cf.  Egerton,  British 
Colonial  Policy,  116  seg. 


CHAPTER   V. 

THE   GOVERNOR'S    COUNCIL. 

The  governor  was  the  head  of  the  colonial  executive;  but 
in  the  exercise  of  his  powers  he  was  assisted,  and  to  a  certain 
extent  checked,  by  an  executive  council,  usually  of  twelve 
members.  Except  in  two  provinces,  these  councillors  were 
appointed  by  the  crown,  usually  on  the  governor's  recommenda- 
tion. The  original  rule,  as  stated  in  the  governor's  instruc- 
tions, was  that  the  governor  should  always  keep  before  the 
Board  of  Trade  a  list  of  persons  best  qualified  for  appointment 
as  councillors.^  The  number  was  originally  six;  but  later  a  list 
of  twelve  eligible  candidates  was  sometimes  required.^  This 
rule  evidently  was  not  always  observed ;  hence,  on  the  recom- 
mendation of  the  Board  of  Trade,  it  was  finally  so  modified 
that  the  governor  was  simply  required,  as  each  vacancy  oc- 
curred, to  send  in  the  names  of  three  persons,  from  which  the 
crown  might  make  its  choice.^  When  the  number  of  coun- 
cillors fell  below  seven,  the  governor  was  allowed  to  make 
provisional  appointments,  which  were  valid  until  acted  upon 
by  the  crown,  or  until  by  other  nominations  the  council  had 
again  seven  members.*     It  was  claimed  in  Virginia  that  the 

^  Instructions  to  Dongan  of  New  York,  1686,  §  8. 

2  Instructions  to  Burrington  of  North  Carolina,  1730,  §  6. 

3  The  instructions  to  Bernard  of  New  Jersey,  1 758  (§  7),  required  three 
from  each  of  the  two  divisions  of  the  province ;  those  to  Dobbs  of  North 
Carolina,  1754  (§  7),  do  not  specify  any  number  of  names. 

^  In  some  of  the  instructions  the  number  was  nine  instead  of  seven.  See 
commission  to  Bernard  of  New  Jersey,  1758,  §  6,  and  his  instructions, 
§  8.  Cf.  commissions  to  Allen  of  New  Hampshire,  1692,  p.  58,  and  Corn- 
bury  of  New  Jersey,  1702,  p.  492;  instructions  to  Allen,  p.  64;  to  Cornbury, 
§  10;  to  Dobbs  of  North  Carolina,  1754,  §  8;  to  Dunmore  of  Virginia,  1771, 
§8. 


APPOINTMENTS  AND  REMOVALS.  73 

governor  kept  the  number  of  councillors  as  low  as  possible,  in 
order  that  he  might  enjoy  this  right  of  appointment. ^ 

The  governor,  in  his  nominations  for  the  council,  was 
directed  to  see  that  certain  qualifications  were  complied  with. 
For  example,  the  councillors  must  be  men  of  good  life  and 
"well  affected  to  Our  Government,"  of  good  estates,  and  not 
necessitous  persons  or  much  in  debt;  they  must  also  be 
"inhabitants"  of  the  province. ^  Clearly  the  intention  was  to 
secure,  so  far  as  possible,  the  substantial  men  of  the  colony, 
though  undoubtedly  many  other  elements  had  to  be  taken  into 
consideration.  Thus,  in  at  least  two  colonies,  it  was  not  safe 
to  ignore  the  principle  of  local  representation  within  the 
province.  The  New  Jersey  proprietors,  on  their  surrender 
of  the  two  provinces  of  East  Jersey  and  West  Jersey,  had 
expressed  their  wish  that  in  the  united  province  six  councillors 
misfht  be  chosen  from  each  side  of  the  old  line  of  division;^ 
and  this  principle  was  recognized  in  the  first  royal  instruc- 
tions.^ Still,  it  is  evident  that  the  rule  was  not  strictly 
enforced,  for  in  Belcher's  time  only  two  of  the  councillors 
represented  the  western  division,  an  inequality  which  was 
made  a  ground  of  complaint  against  the  governor.  In  1758 
Governor  Bernard  was  instructed,  in  case  of  vacancies,  to  send 
in  the  names  of  three  persons  in  each  of  the  two  divisions.^ 
In  New  Hampshire  there  was  no  definite  provision  in  regard 
to  the  matter;  but  in  1717  complaint  was  made  to  Governor 
Shute  that  by  his  appointment  of  six  councillors,  all  from 
Portsmouth,  an  undue  representation  had  been  given  to  the 
merchants  and  traders.^  Similar  considerations  undoubtedly 
presented  themselves  in  other  provinces. 

1  Hartwell,  Blair,  and  Chilton,  Present  State  of  Virginia^  23. 

2  Instructions  to  Bernard  of  New  Jersey,  1758,  §§  7,  9.  Cf.  §§  7,  9  of 
instructions  to  Dobbs  of  North  Carolina,  1754,  and  to  Dunmore  of  Virginia, 
1771. 

3  "  Memorial  of  the  Proprietors,"  New  Jersey  Documents,  ii.  407. 
^  To  Cornbury,  1702,  §  9. 

^  New  Jersey  Documents,  viii.  (i)  18  seq.     Cf.  instructions  to  Bernard, 

1758,  §  7- 

^  New  HatnpsJiire  Provincial  Paj>ers,  iii.  675  ;  Belknap,  History  of  New 
Hampshire,  ii.  18  seq. 


74  THE  GOVERNOR'S  COUNCIL. 

It  has  generally  been  assumed,  and  with  some  degree  of 
truth,  that  the  governor  had  essentially  his  own  way  in  the 
appointment  of  councillors;  but  such  a  statement  would  require 
some  limitation.  Undoubtedly  he  was  not  at  first  under  any 
effective  restraint;  but  later  he  seems  not  to  have  been  always 
successful  in  getting  his  nominations  accepted, — a  circum- 
stance indicating  the  presence  of  counter-influences  not  always 
of  a  desirable  kind.  In  1756  Governor  Sharpe  of  Maryland 
complained  that  his  recommendations  for  the  council  had  been 
very  generally  disregarded.^ 

The  councillors  thus  appointed  might  be  removed  only  by 
the  crown,  though  the  governor  had  the  right  to  suspend  them 
for  certain  causes.^  A  councillor  absent  for  twelve  months 
without  the  governor's  consent,  or  for  two  years  without  leave 
from  the  crown,  was  to  lose  his  position. ^  The  governor  was 
directed  to  send  immediately  to  the  Board  of  Trade  the  names 
of  all  councillors  suspended  by  him,  with  a  statement  of  the 
grounds  of  suspension ;  but  this  arrangement  left  him  so  nearly 
unrestrained  that  it  was  afterward  found  necessary  to  require 
that  all  suspensions  should  have  the  consent  of  a  majority  of 
the  council,  to  which  the  governor  was  to  communicate  the 
reasons  for  his  action.  If,  however,  the  reasons  were  of  such 
a  nature  that  they  might  not  properly  be  communicated  to  the 
council,  the  governor  was  to  transmit  at  once  to  the  home  gov- 
ernment a  full  statement  of  his  charges  against  the  suspended 
councillors.* 

Under  these  provisions  the  governor  had  considerable  lati- 

1  He  writes  with  some  bitterness  that  he  has  been  ordered  to  put  into  the 
council  a  person  whose  merits  "  are  to  me  all  invisible,"  unless  "  an  easy 
Disposition  &  his  having  lately  contracted  Marriage  with  a  Niece  of  His 
Ldp's "  may  be  considered  merits  (^Maryland  Archives,  vi.  400-401). 
Governor  Belcher  of  New  Jersey  was  often  forced  to  see  his  own  recom- 
mendations ignored  and  other  appointments  made  (see  New  Jersey  Docu- 
jncnts,  vii.  177,  595,  608-609). 

2  Commission  to  Bernard  of  New  Jersey,  1758,  §§  4,  5. 
*  Instructions  to  Bernard  of  New  Jersey,  1758,  §  ir. 

^  See  §  10  of  instructions  respectively  to  Bernard  of  New  Jersey,  1758; 
to  Dobbs  of  North  Carolina,  1754;  to  Dunmore  of  Virginia,  1771.  Cf. 
instructions  to  Allen  of  New  Hampshire,  1692,  p.  64. 


THE  PENNSYLVANIA    COUNCIL.  75 

tude  in  the  exercise  of  his  right  of  suspension;  indeed,  even 
in  the  final  removal  of  councillors  his  influence  often  prevailed. 
There  can  therefore  be  little  doubt  that  this  power  was  liable 
to  very  serious  abuse  by  governors  who  were  disposed  to  take 
advantage  of  it  to  get  rid  of  their  opponents  in  the  council, 
and  to  put  into  their  places  persons  who  might  be  relied  upon 
to   support   the   governor's    interest.      This    danger  led   to   a 
tendency  on  the  part  of  the  home  government  to  check  more 
closely  the   governor's    power  of    suspension,   with  the  result 
that  in  several  cases  suspended  councillors  were  reinstated  by 
special  order  of  the  crown.     Thus  in  1706  the  Board  of  Trade 
ordered  Lord  Cornbury  to  reinstate  Lewis  Morris,  a  councillor 
whom  the  former  had  suspended  ;i  and  in   1719,  on  Governor 
Spotswood's  proposal  to  suspend  William  Byrd  for  prolonged 
absence  from  the  colony,  an  order  in  council  was  issued  direct- 
ing in  somewhat  peremptory  terms  the  councillor's  retention 
or  reinstatement. 2     It  is  true  that  this  reversal  of  the  gover- 
nor's action  was  not  common;  but  the  fact  that  it  was  possible 
and  had  actually  taken  place  was  of  no  little  significance. 

There  were  two  colonies  in  which  the  constitution  of  the 
council  differed  from  the  regular  type  just  described.  These 
colonies  were  Pennsylvania  and  Massachusetts.  When  Penn 
left  his  colony  in  1701,  he  issued  a  commission  to  ten  persons 
to  constitute  a  Council  of  State,  empowering  the  governor  for 
the  future  to  fill  any  vacancies  that  might  arise  and,  if  he  saw 
fit,  to  add  to  the  number  of  councillors. ^  This  provision 
seemed  to  give  the  governor  greater  control  of  the  constitution 
of  the  council  than  was  the  case  in  other  colonies;  but  it  is 
evident  that  his  power  was  very  much  restricted  either  by 
subsequent  instructions  or  simply  by  usage,  for  in  actual  prac- 
tice the  council  itself  had  an  important  part  in  the  admission 
of  new  members.*     The  exact  method  of  the  removal  of  coun- 

1  New  Jersey  Documetits,  iii.  95,  124,  154. 

2  Calendar  of  Virginia  State  Papers,  i.    195.     For  a  similar  case  in 
North  Carolina,  see  Colonial  Records,  vi.   558,  1015. 

8  Commission  in  Proud,  History  of  Pettttsylvania,  i.  45i- 
4  For  example,  in  1702  the  governor  proposed  the  name  of  John  Finney 
as  councillor;  whereupon  the  council  ordered  that  he  should  forthwith  be 


76  THE  GOVERNOR'S   COUNCIL. 

cillors  is  not  quite  clear;  but  it  would  seem  that  the  power  of 
dismissal  lay  in  the  hands  of  the  governor  and  council,  possibly 
in  those  of  the  governor  alone.  ^  Thus  in  Pennsylvania,  as  in 
the  royal  governments,  there  was  a  nominated  council,  in  the 
appointment  of  which  the  governor  had  a  predominant  influence. 

In  the  Massachusetts  council  is  found  a  radical  departure 
from  the  principle  of  the  royal  government,  in  that  the  council 
was  there  not  appointed,  but  elected.  The  explanation  of  this 
circumstance  lies  in  the  peculiar  character  of  the  second  Massa- 
chusetts charter.  In  granting  this  instrument,  the  crown  had 
determined  not  to  restore  the  old  independent  system  which 
had  grown  up  under  the  first  charter,  but  to  put  in  its  place 
the  principle  of  direct  control  by  the  crown.  The  old  repub- 
lican traditions,  however,  were  too  deeply  rooted  in  the  affec- 
tions of  the  people  to  be  lightly  put  aside,  and  consequently 
concessions  were  necessary.  Indeed,  the  charter  of  1691  was 
distinctly  a  compromise,  under  which  the  governor  was  here, 
as  elsewhere,  to  be  appointed  by  the  crown,  though  the  old 
principle  of  popular  control  of  the  executive  was  to  survive  in 
the  constitution  of  the  council. 

The  charter  declared  that  there  should  be  a  council  of  twenty- 
eight  members,  more  than  double  the  usual  number  in  the 
other  colonies.  Of  these  twenty-eight  members,  eighteen  at 
least  were  to  be  from  the  old  Massachusetts  Bay  jurisdiction, 
four  from  Plymouth,  three  from  Maine,  and  one  from  the  ter- 
ritory between  the  Sagadahoc  and  Nova  Scotia.  As  each  of 
these  divisions  must  have  at  least  the  representation  here 
assigned,  only  two  members  were  left  without  designation. 
This  council  was  to  be  chosen  annually  by  the  General  Court ; 
but  the  charter  provided  that  the  General  Court  should  consist 
of  the  council  and  the  House  of  Representatives,  and  further, 
that  the  governor  should  have  the  right  of  veto,  upon  all  acts 
and  orders  of  the  General  Court. ^ 

admitted:   Petmsyhania  Records,  ii.  68.     For  similar  cases,  see  Ibid.,  ii. 

117  (i703)»  iii-  232  (i724)»  529  (i733),  v.  i  (i745)- 

1  For  example,  in  1706  the  governor  was  called  upon  to  remove  a  member 

of  the  council  {Ibid.,  ii.  279). 

2  Charter  of  1691,  in  Poore,  Charters  and  ConstiUitions,  i.  942. 


THE  MASSACHUSETTS  COUNCIL.  7/ 

The  first  councillors  were  named  by  the  crown ;  consequently 
an  election  did  not  occur  till  1692.  On  that  occasion  the 
House  of  Representatives  claimed  the  right  to  elect  councillors; 
but  the  council  also  claimed  the  right  to  participate  in  the  elec- 
tion, and  finally  carried  the  day.^  The  members  of  the  council 
were  regularly  elected  by  joint  ballot  of  the  two  Houses  ;2  and 
though  in  this  ballot  the  lower  house  had  of  course  a  decided 
numerical  advantage,  yet  as  a  rule  the  influence  of  the  council 
was  sufficient  to  prevent  sweeping  changes. 

That  the  governor's  right  of  veto  was  no  mere  formality 
is  shown  by  the  circumstance  that  in  1693  Governor  Phips 
negatived  a  candidate  who  had  opposed  his  appointment  as  gov- 
ernor.^ Again,  in  1703  Governor  Dudley  placed  his  veto  upon 
five  councillors,  two  of  whom  were  the  next  year  again  elected 
by  the  General  Court  but  again  disallowed  by  the  governor.^ 
The  most  striking  case  is  that  of  Governor  Belcher,  who  in 
1741,  at  the  time  of  the  famous  land-bank  craze,  negatived 
thirteen  councillors;  whereupon  the  House  retaliated  by  refus- 
ing to  fill  the  vacancies,  thereby  establishing  a  precedent 
which  was  followed  by  succeeding  Houses.^  Nevertheless 
conflicts  of  this  sort  were  less  common  than  might  have  been 
expected,  inasmuch  as  both  the  House  and  the  governor  seem 
usually  to  have  avoided  radical  action.  In  1729,  in  the  heat  of 
the  struggle  over  the  salary  question,  only  four  of  the  twenty- 
eight  councillors  were  changed,  notwithstanding  the  fact  that 
the  council  had  opposed  the  extreme  demands  of  the  House. ^ 

The  Massachusetts  council,  then,  departed  from  the  ordinary 
type  in  two  important  particulars.  In  the  first  place,  it  had 
a  much  larger  number  of  members,  — always  an  important  con- 
sideration in  determining  the  character  of  such  a  body;  and, 
secondly,  it  was  constituted  on  an  entirely  different  principle, 
in  that  it   received   its   members  not  by  appointment  but  by 

*  Hutchinson,  History  of  Massachusetts,  ii.  16. 

2  See,  for  &x?Lm}^\&,  Journal  of  the  House,  1723,  pp.  2-3. 
^  Hutchinson,  History  of  Massachusetts,  ii.  70. 

*  Ibid.,  136-137;  SewalVs  Diary,  ii.  78,  103. 

^  '^\x\.(::\\\x\-iox\..  History  of  Massachtcsetts,\\\.  152. 
6  Ibid.,  ii.  323. 


78  THE  GOVERNOR'S  COUNCIL. 

election,  an  election  checked,  however,  by  the  governor's 
veto. 

Before  this  subject  is  left,  it  should  be  stated  that  besides 
the  regular  members  of  the  council  there  were  other  so-called 
extraordinary  members.  Thus,  by  order  of  the  crown,  surveyor- 
generals  of  customs  were  ex  officio  members  of  the  councils  in 
their  respective  districts  ;i  and  by  a  later  provision  the  same 
privilege  was  given  to  the  royal  superintendent  of  Indian 
affairs.^  As  might  be  expected,  these  extraordinary  councillors 
seem  to  have  been  regarded  with  some  jealousy  by  the  regular 
members.^  Sometimes  also  the  lieutenant-governor  was  a 
member  of  the  council.*  In  Massachusetts,  Stoughton,  the 
first  lieutenant-governor,  acted  in  the  first  place  as  a  councillor 
ex  officio,  but  in  1693  he  was  elected  as  one  of  the  regular 
twenty-eight  councillors.^  Thereafter,  until  1732,  the  lieu- 
tenant-governors sat  in  council,  but  did  not  vote  unless  they 
had  been  regularly  elected.  In  that  year  Governor  Belcher, 
influenced,  it  is  said,  by  personal  dislike  of  Lieutenant-Gov- 
ernor Phips,  forbade  the  latter  to  sit  unless  elected.  In  regard 
to  this  action,  Hutchinson  insists  that  in  the  intention  of  those 
who  drew  up  the  charter  the  lieutenant-governor  was  to  have 
a  seat  in  the  council,  and  cites  in  support  of  his  position  a 
minute  of  the  Board  of  Trade  to  that  effect,  made  just  before 
the  charter  passed  the  seals.  ^ 

The  councillors  were  not,  as  a  rule,  salaried  officers,  though 
in  Virginia  they  received  an  allowance  out  of  the  permanent 
fund  for  the  support  of  the  government.^     In   general,    how- 

^  N'ew  Jersey  Docit/nents,  v.  348. 

2  Stokes,  Constitution  of  the  British  Colonies,  237.     Cf.  Ibid.,  123. 

3  In  Virginia  the  councillors  at  first  refused  to  allow  Surveyor-General 
Dinwiddie  to  act  with  them,  —  whether  because  they  disliked  the  inter- 
ference of  outsiders  in  their  local  affairs,  or,  as  Chalmers  says,  on  account 
of  aristocratic  prejudices,  it  is  difficult  to  say.    See  Chalmers,  Revolt,  ii.  199. 

*  Maryland  Archives,  viii.  365,  366;  TVVw  Hampshire  Provincial 
Papers,  iii.  661,  674,  756. 

^  Hutchinson,  History  of  Massachusetts,  ii.  70. 

^  Ibid.,  iii.  174. 

''  See  instructions  to  Dunmore,  1771,  §  88.  In  Maryland  they  were  for 
a  time  similarly  paid  out  of  the  proprietary  fund ;  but  this  fund  was  finally 


MEETINGS  OF  THE   COUNCIL.  79 

ever,  like  the  members  of  the  lower  house,  they  had  to  con- 
tent themselves  with  per  diem  allowances  during  the  sessions 
of  the  assembly.^ 

As  an  executive  board,  the  council  was  of  course  subject  to 
the  governor's  call,^  though  in  some  cases  it  met  at  stated 
periods.  Thus  in  the  New  Jersey  records  are  found  refer- 
ences to  regular  quarterly  meetings;  and  in  Pennsylvania  there 
was  a  rule  providing  for  weekly  meetings.^  For  the  conduct 
of  executive  business  the  commission  required  a  quorum  of 
three;*  but  by  the  instructions  the  governor  was  directed  not 
to  act  with  less  than  five,  except  in  emergencies  in  which  so 
large  a  number  could  not  be  had.^  In  the  larger  Massachu- 
setts council  of  twenty-eight  members,  the  quorum  was  fixed 
at  seven. ^  In  executive  meetings  the  governor  presided  and 
proposed  matters  for  consideration;  but  he  was  directed  to 
allow  the  council  freedom  of  debate  and  vote.'^ 

engrossed  by  the  governors.  They  were  then  provided  for  by  temporary 
grants  of  the  assembly,  until  the  lower  house  at  length  refused  to  continue 
the  grants  (Sharpe's  Correspondence,  Maryland  Archives,  vi.  46-48  ;  Votes 
and  Proceedings  of  the  Lower  House,  Nov.  16,  1753,  May  i  and  4,  1756). 
In  Pennsylvania,  where  the  council  was  only  an  executive  board,  council- 
lors had  no  pecuniary  compensation  (speech  of  the  governor,  1757,  Votes 
of  Pennsylvania,  iv.  750-751). 

1  In  North  Carolina  in  1761  the  allowance  was  js.  6d.  In  1757  the 
Board  of  Trade  recommended  an  allowance  of  ^50  per  annum,  to  be  paid 
out  of  the  quit-rents  of  the  province.  See  North  Carolina  Records,  v.  787- 
788,  vi.  620.  Cf.  Massachusetts  Province  Laws,  i.  100,  ii.  410,  591,  1074; 
Acts  and  Laws  of  New  Hampshire  (1771),  ch.  47;  AUinson,  Acts  of 
Assembly,  ch.  631,  §  v. 

2  Stokes,  Constitution  of  the  British  Colonies,  124;  Hartwell,  Blair,  and 
Chilton,  Present  State  of  Virginia,  34. 

3  New  Jersey  Documents,  viii.  (i)  103;  Pennsylvania  Records,  ii.  597, 
iii.   56. 

*  See  commission  to  Bernard  of  New  Jersey,  1758,  §  5 ;  to  Dobbs  of 
North  Carolina,  1760,  p.  526. 

^  See  §  6  of  instructions  respectively  to  Bernard,  1758;  to  Dobbs,  1754; 
to  Dunmore  of  Virginia,  1771. 

^  Charter  of  1691,  in  Poore,  Charters  and  Constitutions,  i.  942. 

'  Stokes,  Constitution  of  the  British  Colonies,  124;  Hartwell,  Blair,  and 
Chilton,  Present  State  of  Virginia,  21,  32.  See  also  instructions  to  Bernard 
of  New  Jersey,  1758,  §  5  ;  to  Allen  of  New   Hampshire,  1692,  p.  63;  to 


80  THE  GOVERNORS  COUNCIL. 

Having  considered  the  organization  of  the  council,  let  us 
now  turn  our  attention  to  its  functions.  These  were  of  three 
general  classes.  In  the  first  place,  the  council  with  the  gov- 
ernor had  some  judicial  functions,  and  constituted  a  court  for 
the  trial  of  certain  kinds  of  offences.  In  the  second  place,  it 
was  the  upper  house  of  the  provincial  legislature.  Finally,  it 
was  an  executive  body  to  assist,  to  advise,  and  in  a  measure  to 
control  the  governor  in  the  exercise  of  his  executive  functions. 
The  judicial  functions  of  the  council  will  be  considered  inci- 
dentally in  connection  with  the  judicial  powers  of  the  gover- 
nor, and  its  legislative  work  in  connection  with  the  relation 
of  the  governor  to  the  assembly.  For  the  present,  then,  the 
council  may  be  considered  as  an  executive,  advisory  body. 

An  accurate  definition  of  its  powers  and  duties  as  an  ex- 
ecutive board  is  not  easy.  In  the  absence  of  definite  state- 
ments, many  matters  were  determined  by  mere  usage ;  and 
even  when  definite  statements  did  exist,  they  were  often  modi- 
fied by  the  same  unwritten  law.  The  personal  element  must 
therefore  be  taken  into  account,  in  order  to  get  an  adequate 
conception  of  the  relative  powers  of  governor  and  council  in 
any  given  province  and  at  any  given  time. 

One  function  of  the  council  is  however  very  clear :  it  was  at 
least  an  advisory  body. ^  This  phase  of  the  councillor's  posi- 
tion was  expressed  in  his  oath  of  ofiice,  by  which  he  was 
bound  "  at  all  times  freely  "  to  give  his  advice  to  the  governor 

Cornbury  of  New  Jersey,  1702,  §  7;  to  Dudley  of  Massachusetts,  1702,  p. 
102;  to  Dobbs  of  North   Carolina,   1754,  §   5 ;  to  Duninore  of  Vu-ginia, 

1771,  §  5- 

1  In  1666  Governor  Calvert  of  Maryland  was  required  to  "advise  as 
there  shall  bee  occasion  with  those  who  are  or  shall  be  of  our  Council] 
there  .  .  .  upon  all  emergent  occasions  touching  .  .  .  the  goode  Gov- 
ernm'  of  our  said  Province  and  the  people  there"  (^Marylatid  Archives, 
iii.  545).  The  Massachusetts  charter  of  1691  provided  for  a  council  to  "  be 
advising  and  assisting  to  the  Governour  "  (Poore,  Charters  and  Constitu- 
tions, i.  948).  Penn  commissioned  the  council  of  his  colony  "to  consult 
and  assist  with  the  best  of  their  advice  and  counsel,  me,  or  my  Lieutenant, 
or  Deputy  Governor,  for  the  time  being,  in  all  public  affairs  and  matters 
relating  to  the  said  government,  and  to  the  peace,  safety  and  well-being  of 
the  people  thereof"  (Proud,  History  of  Pennsylvania,  i.  451). 


CONSENT  OF  THE   COUNCIL  REQUIRED,  8 1 

"for  the  good  management  of  the  publick  affairs  of  this  gov- 
ernment."^ The  councillors  had  also  to  restrain  as  well  as  to 
assist  the  governor  in  the  exercise  of  his  powers.  In  the  com- 
mission and  instructions  to  the  governor  was  a  long  list  of 
matters  in  which  his  power  was  limited  by  the  proviso  that  he 
was  to  act  only  with  the  advice  and  consent  of  the  council. 
Thus,  the  commission  and  instructions  to  Governor  Bernard 
of  New  Jersey  in  1758  contained  a  number  of  such  restric- 
tions as  the  following:  the  advice  and  consent  of  the  council 
were  required  in  calling  assemblies  ;2  in  erecting  courts  and 
regulating  their  jurisdiction;^  in  issuing  warrants  for  the 
expenditure  of  public  money;*  in  declaring  martial  law;^  and, 
finally,  in  taking  any  action  not  definitely  provided  for  in  the 
commission.^ 

In  appointments  made  by  the  governor  the  advice  and  con- 
sent of  the  council  were  not  at  first  distinctly  required.''  The 
respective  rights  of  the  governor  and  council  within  this  field 
became  in  consequence  the  subject  of  frequent  controversy. 
In  1709,  however,  in  the  instructions  to  Governor  Hunter  of 
New  York,  occurred  the  provision  that  commissions  to  judges 
and  justices  of  the  peace  should  be  issued  with  the  advice  and 
consent  of  the  council;^  and  this  restriction  was  repeated  in 
subsequent  instructions.  The  rule  was  still  more  forcibly  laid 
down  afterwards,  when  the  governor  was  directed  not  to 
appoint  judges  or  justices  without  the  consent  of  at  least  three 
of  the  council.  The  Board  of  Trade  explained  the  necessity 
for  this  new  statement  on  the  ground  that  the  old  provision, 
though  clearly  requiring  the  advice  and  consent  of  the  council, 
had  not  been  strictly  adhered  to  by  the  governors.^     In  Massa- 

^  Massachusetts  Province  Laws,  i.  78. 

2  See  instructions,  §  12,  and  commission,  §  7. 

3  Commission,  §  15. 

*  Instructions,  §  19.  5  /^/^.^  §  72. 

«  Ibid.,  §  88. 

^  See  instructions  to  Allen  of  New  Hampshire,  1692,  and  to  Cornbury  of 
New  Jersey,  1702. 

'  §43- 

^  Instructions  to  Bernard  of  New  Jersey,  1758,  §  41 ;  to  Dunmore  of 
Virginia,  1771,  §  45.     Note  especially  the  instructions  to  Dobbs  of  North 

6 


82  THE   GOVERNORS  COUNCIL. 

chiisetts  the  consent  of  the  council  to  appointments  had  been 
definitely  required  by  the  charter  of  1691.^  Indeed,  the  council 
had  even  gone  so  far  as  to  claim  the  right  of  nominating 
officers,  a  power  which  was  only  with  some  difficulty  resumed 
by  the  governor.^ 

The  advice  of  the  council  was  of  course  asked  and  given 
on  a  great  variety  of  other  questions,  though  the  extent  to 
which  the  practice  was  carried  naturally  depended  upon  the 
personal  characteristics  of  the  governor  on  the  one  side,  and 
of  the  councillors  on  the  other.  Some  governors  excluded  the 
council  from  the  conduct  of  public  affairs  as  far  as  possible, 
while  others  were  inclined  to  throw  responsibility  upon  it.^ 
The  temptation  to  shift  responsibility  was  particularly  strong 
in  questions  of  legislation.  Indeed,  governors  often  asked  ad- 
vice as  to  whether  they  might  properly  give  their  consent  to 
particular  bills,  even  though  before  coming  to  the  governor 
at  all  a  bill  must  have  been  previously  passed  by  the  council 
sitting  as  an  upper  house.  Governor  Shute  of  Massachusetts, 
for  example,  asked  the  opinion  of  his  council  whether  he 
might,  consistently  with  his  instructions,  pass  an  act  laying 
duties  on  English  goods.  The  council  gave  its  opinion  that 
he  might  not.*  Again,  Governor  Sharpe  of  Maryland  asked 
advice  on  the  question  of  approving  a  supply  bill,  which  among 
other  provisions  imposed  a  tax  on  the  proprietary  estates.^ 

There  is  at  least  one  instance,  however,  in  which  the  council 
gave  advice  with  some  reluctance.  The  Massachusetts  coun- 
cillors, having  passed  a  bill,  were  then  called  upon  by  the 
governor  to  decide  whether  he  might  sign  it  consistently  with 
his  instructions.  They  insisted,  however,  that  having  already 
declared   their   concurrence   as   an   upper    house    they   could 

Carolina,  1754,  §  62,  and  the  explanatory  note  by  the  Board  of  Trade, 
North  Carolina  Records,  v.  1104. 

^  Poore,  Charters  and  Constitutions,  i.  942. 

2  Chalmers,  Revolt,  i.  284. 

*  See  remarks  on  Stoughton  and  Dummer  in  Hutchinson,  History  of 
Massachusetts,  ii.  79. 

^  Ibid.,  205. 

^  He  writes:  "I  presume  their  Advice  will  be  in  some  Sort  my  Justifi- 
cation" {Maryland  Archives,  vi.  428). 


ADVICE  IN  LEGISLATION.  83 

not  give  any  further  advice.  Nevertheless,  they  continued  to 
assert  that  the  bill  was  for  the  public  welfare;  and  the  gover- 
nor seems  to  have  accepted  this  declaration  as  a  convenient 
excuse,  for  he  signed  the  bill,  urging  in  defence  of  his  action 
the  advice  of  his  council.^ 

In  Pennsylvania  the  question  of  asking  advice  in  legislation 
became  an  issue  of  great  importance.  It  will  be  remembered 
that  in  this  colony  the  council  was  a  purely  executive  body, 
without  any  direct  participation  in  legislation,  although  by 
the  terms  of  their  commission  the  councillors  were  to  advise 
the  governor  in  all  public  matters  relating  to  the  government 
and  to  the  peace  and  welfare  of  the  people.^  This  provision 
would  seem  to  include  the  giving  of  advice  on  legislation ;  but 
the  assembly  was  inclined  to  resent  any  interference  whatever 
in  this  field.  In  1709,  Governor  Gookin  complained  that  the 
assembly  would  not  allow  him  to  communicate  the  supply  bill 
to  the  council  for  its  advice;  and  he  therefore  thought  it  neces- 
sary to  enter  into  an  argument  in  defence  of  his  position. ^ 

During  the  governorship  of  his  successor  the  issue  was  quite 
clearly  defined.  Governor  Keith  had  been  instructed  that,  in 
order  to  impose  a  necessary  check  upon  the  otherwise  un- 
controlled action  of  the  governor  and  assembly,  he  was  to 
take  no  action  in  legislative  matters  without  the  advice  and 
consent  of  the  council.*  The  council,  it  must  be  remembered, 
was  looked  upon  as  the  bulwark  of  proprietary  interests,  a 
view  which  only  increased  the  hostility  of  the  assembly. 
Keith  now  adopted  a  distinctly  popular  policy,  by  allying 
himself  with  the  assembly  as  against  the  proprietary  interest 
and  its  representative,  the  council.  The  result  was  that  the 
proprietary  instructions  were  so  often  ignored  that  the  widow 
Penn  at  length  found  it  necessary  to  intervene.  Keith  was 
censured  for  departing  from  his  instructions,  and  new  instruc- 
tions were  issued  that  completely  tied  his  hands  in  matters  of 

1  Hutchinson,  History  of  Massachusetts,  ii.  297;  Massachusetts  Province 
Laws,  ii.  486. 

2  Commission  in  Proud,  History  of  Peniisylvania,  i.  451. 

3  Petinsylvania  Records,  ii.  492. 

4  Instruction  of  1724,  in  Proud,  History  of  Pennsylvania.,  ii.  178  seq. 


84  THE  GOVERNORS  COUNCIL. 

legislation.  He  was  directed  for  the  future  to  advise  with  the 
council  upon  every  meeting  or  adjournment  of  the  assembly; 
to  make  no  speech  and  send  no  message  not  approved  by  the 
council,  if  practicable ;  to  return  no  bills  without  advice,  and 
to  approve  none  without  the  consent  of  a  majority  of  the 
council.^  Keith  argued  that  by  the  existing  charter  the  council 
was  no  part  of  the  legislature  and  had  no  right  to  restrain  the 
governor's  action  in  that  department.  He  even  went  so  far  as 
to  maintain  that  the  council  was  not  legally  anything  more 
than  a  council  of  state,  "to  advise,  and  to  be  present,  as 
solemn  witnesses  to  the  Governor's  actions. "^  He  soon  paid 
the  penalty  of  his  insubordination,  however,  with  the  loss  of 
his  office.^ 

It  is  clear  that  the  instructions  of  the  widow  Penn  were  not 
always  strictly  observed.  Nevertheless,  the  council  was  so 
frequently  asked  to  give  advice  that  it  seems  often  to  have 
assumed  almost  the  character  of  an  upper  house.  For  ex- 
ample, it  discussed  and  amended  bills  for  various  purposes,* 
although  sometimes  the  governor  passed  a  bill  in  the  face  of 
opposition  from  the  council.  Thus,  in  1759,  the  assembly 
passed  a  bill  for  the  issue  of  paper  money,  whereupon  the 
council  made  a  formal  protest  against  the  governor's  action  as 
inconsistent  with  his  instructions.  The  protest,  however,  was 
ignored  and  the  bill  passed.^ 

The  questions  referred  to  the  council  were  not  confined  to 
matters  of  legislation.  There  is  an  interesting  case  in  Massa- 
chusetts in  which  the  councillors  were  called  upon  to  give 
their  opinion  as  to  the  interpretation  of  the  clauses  in  the 
charter  which  defined  the  governor's  military  power.  They 
were  reluctant  to  give  advice  under  such  circumstances,  and 
one  of  them  declared  that  such  questions  of  interpretation 
belonged  to  the  judges,  not  to  the  council.  They  finally 
returned  a  noncommittal  answer.^ 

1  Proud,  History  of  Pennsylvania,  ii.  179,  note. 

2  Votes  of  Assembly,  quoted  Ibid.,  180-181  seq.,  notes. 

3  Ibid.,  183. 

*  See,  for  example,  Pennsylvania  Records,  vii.  444. 

5  Ibid.,  viii.  357  seq.  ®  SewalVs  Diary,  iii.  313. 


CHARGED  WITH  DEPENDENCE  ON  THE  GOVERNOR.       85 

It  has  been  seen  that  the  reference  to  the  council  of  such 
a  question  as  the  propriety  of  signing  particular  bills  seemed 
often  to  offer  a  convenient  means  of  shifting  responsibility. 
The  home  government  saw  this  danger,  and  laid  down  em- 
phatically the  principle  of  the  governor's  personal  responsi- 
bility. In  the  year  1758,  for  example,  Governor  Fauquier  of 
Virginia  approved  the  law  reducing  the  salaries  of  ministers; 
but  the  act  was  disallowed  on  the  ground  that  it  had  been 
passed  contrary  to  the  governor's  instructions,  and  Fauquier 
was  reprimanded.  In  defence  of  his  action,  he  presented  the 
excuse  that  he  had  passed  the  law  by  the  advice  of  his  council 
and  contrary  to  his  own  better  judgment;  but  the  Board  of 
Trade  declined  to  admit  this  defence,  insisting  that  the  advice 
of  the  council  could  not  free  the  governor  from  personal 
accountability.  1 

More  important  than  any  formal  statement  of  rights  and 
duties,  is  the  question  as  to  the  real  influence  of  the  council 
in  the  government  of  the  province,  — as  to  the  extent  to  which 
it  actually  controlled  the  governor's  action.  This  is  clearly 
a  difficult  question,  depending  as  it  does  largely  upon  those 
personal  elements  that  refuse  to  submit  to  convenient  generali- 
zation or  exact  definition.  It  has  been  very  generally  assumed, 
and  not  unnaturally,  that  a  body  constituted  like  the  provin- 
cial council  was  necessarily  subservient  to  the  governor,  exer- 
cising practically  little  or  no  check  upon  his  action;  and  it 
would  not  be  difficult  to  find  contemporary  opinions  tending 
to  confirm  this  view.  Governor  Hutchinson,  in  his  "History 
of  Massachusetts,"  2  comparing  the  elective  council  of  his 
province  with  the  nominated  council  of  the  other  royal  gov- 
ernments, speaks  of  the  latter  as  so  closely  dependent  upon 
the  governor  that  it  could  hardly  be  considered  as  a  distinct 
branch.  The  same  ground  is  taken  by  Dummer,  in  his  "De- 
fence of  the  New-England  Charters."^  Moreover,  governors 
were  sometimes  charged  with  keeping  the  council  subservient 
by  means  of  a  judicious  system  of  patronage.* 

^  Chalmers,  Revolt,  ii.  356-357. 

2  II.  16.  8  Pp.  40-41. 

*  "A  Short  Discourse  on  the  Present  State  of  the  Colonies  in  America" 


86  THE  GOVERNOR'S  COUNCIL. 

To  present  only  this  side  of  the  case,  however,  would  be  to 
give  a  false  impression.  The  governor's  control  of  the  consti- 
tution of  the  council  was  by  no  means  absolute,  a  fact  which 
must  be  borne  in  mind  in  any  fair  consideration  of  the  sweep- 
ing charges  of  subserviency  brought  against  the  provincial 
councils.  If  there  are  many  instances  of  subservient  councils, 
there  are  also  cases  of  direct  conflict  between  governor  and 
council.  Take,  for  example,  the  case  of  the  Virginia  council, 
which  by  one  author  was  represented  as  completely  under  the 
governor's  thumb. ^  By  other  writers  the  situation  was  viewed 
in  a  very  different  light.  Chalmers  says  of  this  council  dur- 
ing the  reign  of  Queen  Anne:  "From  the  constitution  of 
this  province,  twelve  counsellors  enjoyed  almost  every  power," 
even  attempting  to  control  governors  and  frequently  succeed- 
ing in  securing  their  recall.  According  to  the  same  authority, 
a  combination  of  six  councillors  secured  the  recall  of  Governor 
Nicholson. 2  Governor  Spotswood,  who  succeeded  to  the  gov- 
ernment a  few  years  later,  made  frequent  complaints  in  his 
letters  of  the  factious  and  unreasonable  claims  of  the  council, 
saying  that  it  was  under  the  control  of  a  family  who  had  suc- 
ceeded so  well  as  to  remove  two  governors  while  they  them- 
selves had  kept  their  seats,  and  whom  he  now  suspected  of 
intriguing  against  himself.^  Here,  then,  clearly  enough  was 
a  strong  aristocratic  body  very  different  from  the  subservient 
creatures  of  the  governor  whom  we  might  have  expected  to 
find.  In  171 1  Governor  Hunter  of  New  Jersey  complained  of 
the  council's  obstinate  resistance  to  public  measures  upon 
which  governor  and  representatives  were  agreed.*  In  1749  the 
governor  and  assembly  of  New  Jersey  had  one  agent  in  London, 

(1726),  by  M.  Bladen,  in  North  Carolina  Records,  ii.  626  seq.,  especially 
631  ;  Hartwell,  Blair,  and  Chilton,  Present  State  of  Virginia,  24,  32-33. 

1  Hartwell,  Blair,  and  Chilton,  Present  State  of  Virginia,  32. 

2  Chalmers,  Revolt,  i.  317-318. 

8  Letters  of  Coventor  Spotswood  (Virginia  Historical  Society,  Collec' 
tiotis,  W.'),  passim,  especially  285,  311  seq. 

*  New  Jersey  Doctiments,  iv.  51-62.  Governor  Hunter  was  accused  at 
this  time  of  having  a  sort  of  kitchen  cabinet  {Ibid.,  119.  Cf.  the  case  of 
Governor  Belcher,  Ibid.,  vii.  183,  251). 


CONSERVATISM  OF  THE   COUNCIL.  87 

and  the  council  another.^  The  case  of  Governor  Keith  and 
the  Pennsylvania  council  has  already  been  referred  to.  These 
instances  are  enough  to  show  that  the  councillors  must  not  be 
regarded  necessarily  as  mere  figureheads,  since  they  are  seen 
to  have  been  often  men  who  could  and  did  act  even  in  opposi- 
tion to  the  governor's  favorite  measures.  Indeed,  with  the 
increasing  number  of  restrictions  upon  the  governor's  power  of 
suspension  and  appointment,  it  became  more  and  more  difficult 
to  get  rid  of  opposition  within  the  council,  or  even  to  prevent 
opponents  from  becoming  councillors. 

With  these  limitations  always  in  mind,  it  must  be  said, 
however,  that  as  a  rule  the  council  could  be  relied  upon  to 
support  the  governor  in  his  defence  of  his  own  prerogative  and 
of  the  interests  of  the  crown.  This  fact  was  clearly  shown  by 
the  action  of  the  council  in  legislation,  in  which  it  generally 
supported  the  governor  against  the  lower  house.  For  example, 
bills  that  were  likely  to  be  opposed  by  the  governor  were 
usually  stopped  in  the  council,  a  practice  of  which  a  good 
illustration  is  to  be  found  in  Maryland  politics  during  the 
years  1753-1759.  This  was  a  stormy  period  of  conflict  between 
the  governor  and  the  assembly  over  supply  bills,  and  yet  dur- 
ing the  six  years  there  is  no  record  of  any  veto  by  the  gov- 
ernor: all  bills  presented  to  him  were  approved,  and  this  fact 
clearly  indicates  that  obnoxious  legislation  was  blocked  by 
the  upper  house.^  Indeed,  the  council  was  sometimes  even 
more  conservative  than  the  governor.  Thus  in  South  Carolina, 
on  one  occasion,  the  councillors,  at  the  expense  of  their  popu- 
larity, opposed  the  bills  for  the  issue  of  paper  money,  although 
these  measures  had  the  support  of  the  governor  as  well  as  of 
the  assembly.^  In  Pennsylvania  Governor  Keith  adopted  the 
policy  of  winning  popular  support  by  an  alliance  with  the 
assembly;  and  it  was  the  resistance  of  the  council  to  this 
design  that  brought  on  the  discussion  as  to  the  powers  of  the 
council.^     A  later  governor  approved  a  bill  for  the  issue  of 

^  New  Jersey  Documents ,  vii.  302. 

2  Votes  and  Proceedings  of  the  Lower  Hojise,  Nov.  1 7, 1 753-April  1 7, 1759. 

8  South  Carolina  Historical  Society,  Collections,  i.  302. 

•*  Proud,  History  of  Pennsylvania,  ch.  xxv. 


88  THE  GOVERNOR'S  COUNCIL. 

paper  money,  in  the  face  of  a  protest  by  the  council  against 
the  bill  on  the  ground  that  it  was  dangerous  in  its  tendencies 
and  inconsistent  with  the  governor's  instructions. ^ 

The  efforts  made  in  Pennsylvania  to  get  rid  altogether  of 
the  intervention  of  the  council  have  been  already  noticed.     In 
Maryland,  too,  which  was  very  probably  under  the  influence  of 
Pennsylvania   ideas,    the   doctrine  prevailed  that  "the  Upper 
House   is  no  Part   of   our  Constitution."  ^     A  more  practical 
expression  of  this  jealousy  of  the  council  is  seen  in  the  as- 
sembly's policy  of  denying  the  council  any  right  to  initiate  or 
to  amend  money  bills. ^     Furthermore,  the  value  of  the  council 
as  a  barrier  against  radical  legislation  was  also  much  impaired 
by  its  very  constitution :  appointed  as  it  was  by  the  crown,  it 
had  little  of  that  popular  local  support  which  alone  could  give 
it  any  great  weight  or  influence.     The  royalist  writer,  Anthony 
Stokes,  thought  that  if  this   difficulty  had   been   met,   if  the 
council  had  been  made  a  local,    hereditary  aristocracy  with 
interests  bound  up  with  those  of   the  crown,  the  Revolution 
might  have  been  prevented.* 

It  is  interesting  to  note  that  the  Massachusetts  elective 
council  showed  very  nearly  the  same  constitutional  tendencies 
as  the  nominated  councils  of  the  other  colonies.  Though 
chosen  by  a  vote  in  which  the  lower  house  predominated,  it 
was  distinctly  conservative,  partly  perhaps  from  the  fear  of 
incurring  a  veto  from  the  governor  on  its  next  election,  partly 
owing  to  the  personal  influence  of  the  governor  exercised  in 
other  ways,  and  partly,  without  doubt,  because  of  the  conserva- 
tive influence  of  executive  responsibility.  A  certain  phase  of 
popular  feeling  on  this  point  is  illustrated  by  an  interesting 
anonymous  pamphlet  of  the  year  1708,  which  charged  the  coun- 
cillors,  in  language  more  forcible  than  refined,  with  subser- 

^  Peiinsylvatiia  Records,  viii.  358. 

2  Maryland  Archives,  ix.  120.  Note  also  a  message  of  the  House: 
"  What  are  the  Rights  and  Privileges  of  those  Gentlemen,  that  are  said  to 
constitute  another  Branch,  we  know  nothing  about ;  as  it  is  a  Branch  unde- 
vised in  our  Charter,  and  unknown  in  it's  Original  "  {Votes  and  Proceedings 
of  the  Lower  H 071  se,  Dec.  i,  1757)- 

8  See  below,  pp.  122  scq. 

4  Constitution  of  the  British  Colonies,  137-138. 


THE  MASSACHUSETTS  COUNCIL.  89 

viency  to  the  governor,  censuring  their  timidity  in  strong 
terms;  and  furthermore  contrasted  unfavorably  the  elective 
council  of  Massachusetts  with  the  nominated  councils  of  the 
other  colonies.^  There  is  an  entry  in  the  diary  of  Samuel 
Sewall  which  gives  a  similar  impression.''^  That  this  view  was 
not  always  the  correct  one,  however,  is  shown  by  Dudley's 
statement  that  there  were  "  commonwealthsmen  "  even  in  the 
council,  and  by  the  fact  that  Lord  Bellomont  had  serious  dif- 
ferences with  his  council. 3  Nevertheless,  the  governor's  veto 
seems  on  the  whole  to  have  been  effective  in  keeping  the 
opposition  out  of  the  council ;  for  in  the  heat  of  the  controversy 
over  the  salary  question,  the  council  took  the  governor's  side, 
and  in  1719,  in  a  long  struggle  between  the  council  and  the 
House  over  the  impost  bill,  laying  a  tax  on  British  goods,  the 
council  urged  as  its  ground  of  objection  that  the  bill  was  con- 
trary to  the  governor's  instructions.^  Hutchinson  said  of  the 
council  that  it  was  too  dependent  on  both  governor  and  people, 
being  at  different  times  under  the  influence  of  the  one  or  the 
other,  adding  that  "the  most  likely  way  to  secure  a  seat  for 
many  years"  was  "to  be  of  no  importance."^ 

In  addition  to  other  causes  which  have  already  been  sug- 
gested, the  conservatism  of  the  council  was  due  very  largely  to 
the  presence  of  several  men  of  official  position.  For  example, 
in  1765  there  were  in  the  council  the  lieutenant-governor,  the 
secretary  of  the  province,  judges  of  the  Superior  Court,  and 
the  attorney-general;  and  Hutchinson  says  that,  with  very  few 
exceptions,  the  judges  of  the  Superior  Court  had  been  elected 
to  the  council.  Now  these  were  all  appointees  either  of  the 
crown  or  of  the  governor,  and  hence  as  a  rule  —  to  use  a  con- 
temporary phrase —  "government  men."  Hutchinson  himself 
was  for  some  years  both  councillor  and  lieutenant-governor, 
and  seems  to  have  been  a  sort  of  leader  in  the  business  of  the 

1  "  Deplorable  State  of  New  England,"  in  Massachusetts  Historical 
Society,  Collections,  5th  Series,  vi.  113. 

2  For  example,  iii.  47. 

^  Chalmers,  Rei'olt,  i.  315. 

*  Council  records,  Massachusetts  Province  Laws,  ii.  1 58-161. 

^  History  of  Massachusetts,  ii.  15-17. 


90  THE  GOVERNOR'S  COUNCIL. 

council.  In  1766,  however,  a  radical  change  was  made.  The 
House  then  assumed  an  aggressive  attitude,  striking  off  from 
the  list  of  councillors  the  lieutenant-governor  and  the  most 
prominent  of  the  official  members,  with  the  result  that  the 
relation  of  the  council  to  the  House  and  the  governor  respec- 
tively was  entirely  changed.  The  leadership  of  the  council 
now  passed  from  the  hands  of  Hutchinson  into  those  of  Bow- 
doin,  a  popular  leader,  under  whose  management  the  council 
was  brought  into  sympathy  with  the  lower  house.  ^  It  was 
this  altered  disposition  of  the  council,  no  doubt,  which  caused 
a  provision  to  be  inserted  in  the  Massachusetts  Government 
Act,  to  the  effect  that  the  councillors  should  hereafter  be 
appointed,  as  in  the  other  colonies,  by  the  crown  upon  the 
governor's  recommendation. 

To  sum  up  what  has  been  noted  as  to  the  position  of  the 
council  in  the  provincial  constitution,  it  may  be  said  that, 
although  it  is  a  mistake  to  suppose  that  the  council  was 
always  or  necessarily  under  the  control  of  the  governor,  yet,  as 
might  have  been  expected  from  its  constitution,  it  was  usually 
on  the  governor's  side  in  his  contests  with  the  assembly,  exer- 
cising upon  the  whole  a  conservative  influence.  Furthermore, 
it  is  evident  that  this  conservative  tendency  was  found  in  the 
elective  council  of  Massachusetts  as  well  as  in  the  nominated 
councils  of  the  other  colonies.  In  the  words  of  Hutchinson, 
"neither  in  Massachusetts,  nor  in  the  royal  governments,  do 
we  meet  with  that  glorious  independence,  which  makes  the 
House  of  Lords  the  bulwark  of  the  British  constitution,  and 
which  has  sometimes  saved  the  liberties  of  the  people  from 
threatened  incroachment,  and  at  other  times  put  a  stop  to 
advances  making  upon  the  royal  prerogative.  "^ 

1  History  of  Massachusetts,  iii.  148-150,  156. 

2  Ibid.,  ii.  17. 


CHAPTER  VI. 

THE  GOVERNOR'S  EXECUTIVE  POWERS. 

In  the  study  of  the  powers  and  duties  of  the  provincial  gov- 
ernor, the  first  inquiry  must  be  as  to  the  documents  in  which 
these  powers  and  duties  are  stated,  the  instruments  through 
which  the  governor's  authority  was  conferred  and  defined. 
There  are  two  classes  of  instruments  which  have  more  nearly 
than  the  others  that  quality  of  permanence  which  is  associated 
with  a  rigid  constitution  or  a  fundamental  law.  The  first 
class  may  be  represented  by  a  single  instance.  When  New 
Netherland  passed  from  the  Dutch  to  the  English  in  1664,  the 
two  parties  agreed  upon  so-called  "Articles  of  Capitulation," 
an  instrument  containing  some  important  constitutional  pro- 
visions. For  example, it  declared  "That  the  town  of  Man- 
hatans  shall  choose  Deputies,  and  those  Deputies  shall  have 
free  voices  in  all  public  affairs,  as  much  as  any  other  Depu- 
ties " ;  another  clause  provided  for  the  election  of  certain 
inferior  civil  officers  and  magistrates ;  and  there  were  also  pro- 
visions regarding  the  rights  of  individuals.  On  the  whole, 
however,  there  seems  to  have  been  little  here  to  determine  the 
framework  of  the  provincial  constitution.  ^ 

The  second  class  of  instruments,  the  charters,  are  much 
more  important;  yet  even  these,  with  the  exception  of  the 
Massachusetts  Province  Charter  of  1691,  are  of  comparatively 
little  value  for  the  present  purpose.  In  the  first  place,  the 
royal  governments,  as  a  rule,  had  no  charters ;  the  only  one  of 
any  political  significance  was  the  so-called  Province  Charter 
of  Massachusetts  in  1691.  In  the  two  proprietary  govern- 
ments which  survived  the  general  wreck,  Maryland  and  Penn- 

1  New  York  Documents,  ii.  250-253. 


92  THE   GOVERNOR'S  EXECUTIVE  POWERS. 

sylvania,  there  were,  it  is  true,  the  charters  to  the  original 
proprietors;  but  the  Massachusetts  charter  is  the  only  one 
among  either  royal  or  proprietary  governments  which  assumes 
to  mark  out  in  any  systematic  way  the  form  of  the  provincial 
constitution,  and  to  define  with  any  degree  of  accuracy  the 
relative  powers  of  governor  and  assembly.  Nevertheless,  the 
charters  did  contain  certain  broad  limitations,  imposed  in 
the  one  case  by  the  crown  upon  the  proprietors,  and  in  the 
other  by  the  crown  upon  itself.  It  must  be  said,  moreover,  in 
general  terms,  that  in  the  proprietary  governments  the  pro- 
prietors delegated  to  their  governors  the  powers  granted  to 
themselves  by  their  charters.  All  these  cases,  however,  may 
fairly  be  regarded  as  exceptional,  as  variations  from  the  strict 
type  of  the  provincial  government. 

The  main  clue  to  a  correct  understanding  of  the  powers  of 
the  provincial  governor  is  to  be  found  in  the  vice-regal  char- 
acter of  his  office.     He  was  the  agent,  the  representative  of 
the  crown.      He  succeeded,  with  certain  necessary  limitations 
imposed  by  his  subordinate'  position,  to  the  traditions  of  the 
royal  prerogative  as  defined  by  long-standing  usage  and  modi- 
fied by  the  development  of  parliamentary  control. ^     Not  only 
did  this  vice-regal  conception  determine  the  provisions  of  the 
commission  ;  it  also  fixed  the  interpretation  of  these  provisions, 
or  supplied  a  rule  of  action  in  matters  concerning  which  the 
commission    itself   was    silent.      Naturally   the   question    was 
constantly  arising  as  to  whether  a  particular  power  was  or  was 
not   an    essential    part   of   the   royal   prerogative.      Governors 
claimed,  for  example,  that  the  interference  of  the  assembly  in 
military  affairs  and  in  appointments  was    an    invasion  of  the 
prerogative;  while  the  assembly,  on  its  part,  repeatedly  based 
its  privileges  on  the  usages  of  the  House  of  Commons.     An 
interesting  case  in  point  arose  from  the  practice  of  presenting 
the  speaker  to  the  governor  for  the  latter' s  approval.      Since 
assent  was  always  given  as  a  matter  of  course,  in  England  this 
custom  had  become  a  mere  formality;  and  such  was  usually 
the  case  in  the  colonies.     In  a  few  cases,  however,  the  gover- 

1  Pownall,   Administration  of  the   Colonies,    55;     Chalmers,    Political 
Annals,  683. 


HIS    VICE-REGAL   CHARACTER.  93 

nor  undertook  to  make  his  prerogative  a  reality  by  rejecting 
the  choice  of  the  House.  ^ 

The  terms  of  the  commission  echoed  the  old  phrases  of  the 
royal  prerogative;  and  often  old  powers  of  the  crown  which 
had  ceased  to  have  practical  meaning  at  home  were  revived  in 
it.  Thus,  in  accordance  with  the  old  constitutional  tradition 
which  gave  the  king  as  the  fountain  of  justice  the  right  to 
erect  courts  of  justice,  the  royal  commission  gave  the  governor 
as  the  king's  representative  this  independent  right  of  estab- 
lishing courts. 

With  this  fundamental  principle  in  mind,  the  main  features 
of  the  commission  may  be  easily  summed  up.  The  king  was 
the  fountain  of  honor  and  privilege,  and  had  thus  the  right 
to  create  offices  and  to  fill  them :  therefore  the  provincial  gov- 
ernor had  the  right  to  appoint  all  officers.  The  king  was 
commander-in-chief  of  the  army  and  navy:  the  governor  was 
captain-general  of  the  provincial  military  forces,  as  well  as 
vice-admiral.  The  king,  by  virtue  of  his  prerogative,  might 
prorogue  and  dissolve  Parliaments,  although  this  power  was 
limited  by  the  triennial  and  septennial  acts:  the  governor's 
commission,  however,  conferred  it  without  limitation.  The 
king  had  the  right  of  legislation  in  conjunctiorf  with  the 
two  houses  of  Parliament:  the  governor  was  empowered  to 
make  laws  with  the  consent  of  the  council  and  assembly.  The 
similarity  is  even  more  striking  in  minor  points.  The  gover- 
nor, like  the  king,  had  in  theory  the  right  to  grant  charters 
of  incorporation  to  cities  and  towns,  and  to  establish  ports, 
markets,  and  fairs;  he  had  the  right  of  pardon,  except  for 
treason  and  felony;  and  in  ecclesiastical  matters  he  had  cer- 
tain rights  of  appointment  to  benefices.  The  character  of  the 
governor's  office  as  drawn  in  the  commission  is  thus  clearly 
vice-regal. 

Besides  the  commission,  a  set  of  instructions  was  given  to 
each  governor  on  his  appointment,  and  these  were  supplemented 
from  time  to  time  by  so-called  "additional  instructions."  The 
two  documents  taken  together  formed  what  may  be  roughly 
called  the  constitution  of  the  province;  they  were  drafted  by 

1  See  below,  pp.  149  seq. 


94  THE   GOVERNOR'S  EXECUTIVE  POWERS., 

the  Board  of  Trade,  receiving  their  final  sanction  through 
orders  in  council.^  As  to  the  distinctive  characters  of  these 
two  documents  respectively,  it  may  be  said,  in  the  first  place, 
that  the  commission  was  an  essentially  public  document,  while 
the  instructions  were  not.  The  commission  was  published 
at  the  accession  of  the  governor,  and  was  generally  inscribed 
on  the  council  books. ^  The  instructions,  on  the  other  hand, 
were  not  regularly  published,  though  it  would  appear  that  in 
Virginia  it  was  at  first  customary  to  publish  them,  and  that 
the  discontinuance  of  the  old  usage  was  considered  a  griev- 
ance.^ The  governor  was,  however,  directed  to  communicate 
to  the  council  those  clauses  which  had  to  do  with  matters  in 
which  its  consent  was  necessary,  together  with  such  other 
articles  as  he  might  think  fit  for  the  information  of  the  council 
and  assembly.*  The  instructions  thus  given  out  were  usually 
articles  bearing  on  controverted  points  or  limiting  the  gover- 
nor's assent  to  certain  kinds  of  legislation. 

The  commission  contained  the  grant  of  power,  while  the 
instructions  told  how  that  power  should  be  used  and  often 
limited  its  scope.  For  example,  the  commission  empowered 
the  governor  to  act  with  a  quorum  of  three  councillors :  the 
instructions  required  a  quorum  of  five,  except  in  emergencies. 
The  commission  authorized  him  to  appoint  judicial  officers: 
the  instructions  made  necessary  the  advice  and  consent  of  the 
council  for  the  making  of  such  appointments.  The  commission 
authorized  him  to  erect  courts:  the  instructions  usually  for- 
bade the  erection  of  new  courts  without  special  warrant  from 
the  crown.  Finally,  the  commission  empowered  him  to  make 
laws  in  conjunction  with  the  council  and  assembly :  the  in- 
structions forbade  him  to  assent  to  certain  classes  of  laws. 

An  interesting  question  arises  here  as  to  the  exact  legal 
effect  of  action  taken  by  the  governor  within  the  lines  of  his 
commission  but  in  violation  of  his  instructions.  A  case  in 
point  occurred  in   1762.     Governor  Hardy  of  New  Jersey  was 

1  See  e.  g.  A'eiv  York  Doctiinents,  vi.  791,  793. 

2  Stokes,  Co7istitutio7i  of  the  British  Colonies^  177. 

*  Hartwell,  Blair,  and  Chilton,  Present  State  of  Virginia.,  21. 

*  See  instructions  to  Bernard,  §  4. 


THE   COMMISSION  AND  INSTRUCTIONS.  95 

authorized  by  his  commission  in  general  terms  to  appoint 
judges  and  other  officers  for  the  administration  of  justice.  His 
instructions,  however,  expressly  directed  that  the  duration  of 
such  appointments  should  not  be  during  good  behavior  but 
subject  to  recall  at  pleasure.  In  spite  of  these  directions, 
Hardy,  on  his  arrival  in  the  province,  appointed  three  judges 
of  the  Supreme  Court,  with  commissions  authorizing  them  to 
serve  during  good  behavior;  whereupon  the  validity  of  these 
commissions  was  questioned  and  the  matter  was  referred  to 
Attorney-General  Yorke  for  his  opinion.  That  officer  held 
that  the  judges'  commissions  were  illegal  and  invalid,  on  the 
ground  that,  although  the  power  conferred  by  the  governor's 
commission  was  general,  yet  since  the  instructions,  which 
restricted  his  authority,  were  referred  to  in  the  commission, 
they  must  be  regarded  as  incorporated  into  the  latter  document 
and  hence  as  limiting  the  power  conferred  by  it.^ 

It  has  been  said  that  the  commission  and  instructions  may 
together  be  regarded  as  the  constitution  of  the  province. 
Thomas  Pownall,  one  of  the  ablest  students  of  colonial  admin- 
istration, and  himself  at  one  time  governor  of  Massachusetts, 
claimed  for  the  royal  commission  something  of  that  fixity  and 
permanence  which  mark  the  so-called  rigid  constitutions  of  our 
own  time.  "This  the  King's  commission,"  he  writes,  "is 
barely  a  commission  during  pleasure,  to  the  person  therein 
named  as  governor,  yet  it  provides  for  a  succession  without 
vacancy,  or  interregnum,  and  is  not  revoked  but  by  a  like  com- 
mission, with  like  powers:  It  becomes  the  known,  established 
constitution  of  that  province  which  hath  been  established  on 
it,  and  whose  laws,  courts,  and  whole  frame  of  legislature  and 
judicature,  are  founded  on  it :  It  is  the  charter  of  that  province: 
It  is  the  indefeasible  and  unalterable  right  of  those  people 
.  .  .  and  therefore  not  to  be  altered;  but  by  such  means  as 
any  reform  or  new  establishment  may  take  place  in  Great 
Britain  :  It  cannot,  in  its  essential  parts,  be  altered  or  destroyed 

^  N^ew  Jersey  Documents,  ix.  340  seq ,  380.  The  Attorney-General  held, 
however,  that  although  such  appointments  were  "  illegal,  yet  that  the  Judg- 
ments given  and  acts  done  by  such  Judges  will  be  good,"  as  in  the  case  of 
officers  de  facto. 


96  THE   GOVERNOR'S  EXECUTIVE  POWERS. 

by  any  royal  instructions  or  proclamation ;  or  by  letters  from 
secretaries  of  state:  It  cannot  be  superceded,  or  in  part 
annulled,  by  the  issuing  out  of  any  other  commissions  not 
known  to  this  constitution. "^ 

It  is  probable  that  this  was  a  prevalent  view  among  the 
colonists  themselves,  though  its  strict  legal  accuracy  may 
perhaps  be  open  to  question.  It  must  be  said,  also,  that  the 
commissions  and  instructions  were  remarkably  free  from  arbi- 
trary alterations.  There  was,  it  is  true,  a  development  from 
simplicity  to  complexity,  from  the  extremely  vague  and  gen- 
eral terms  of  the  early  commissions  to  the  elaborate  and  fairly 
accurate  definition  of  powers  found  in  the  commissions  and 
instructions  of  the  royal  governors  toward  the  close  of  the 
colonial  period.  This  progress  is  palpably  marked  by  the 
striking  increase  in  the  length  of  these  documents,  as  seen 
by  contrasting  the  first  brief  royal  commissions  in  Virginia 
after  the  overthrow  of  the  London  Company  with  the  formida- 
ble commissions  of  the  next  century,  accompanied  as  they  were 
by  instructions  like  those  to  Governor  Dobbs  in  1754,  which 
contained  more  than  a  hundred  articles.  During  the  last 
century  of  provincial  government,  however,  this  expansion  was 
mainly  in  the  direction  of  a  more  accurate  definition  of  powers 
previously  given,  together  with  a  few  further  limitations  im- 
posed upon  the  governor's  freedom  of  action.  The  commis- 
sion of  a  new  governor  in  Massachusetts  or  New  York  differed 
very  slightly,  if  at  all,  from  that  of  his  immediate  predecessor; 
and  such  changes  as  were  made  usually  came  about  gradually, 
and  did  not  seriously  affect  the  stability  of  the  provincial 
constitution. 

In  addition  to  the  set  of  instructions  given  to  the  governor 
on  his  assignment  to  a  province,  he  received  from  time  to  time 
other  instructions,  some  of  which  had  a  permanent  character 
and  were  thus  likely  to  be  included  in  the  regular  set  of 
instructions  to  the  next  governor,  while  others  were  merely 
orders  and  directions  intended  to  serve  temporary  ends.  These 
additional  instructions  might  take  the  form  either  of  orders  in 
council,  or  of  instructions  from  the  Board  of  Trade  or  the 
1  Pownall,  Administration  of  the  Colonies,  54. 


PROVINCIAL  AND  PARLIAMENTARY  ENACTMENTS.      97 

secretaries  of  state.  The  instructions  relating  to  trade  formed 
a  distinct  body  of  articles  governing  the  conduct  of  the  gover- 
nor as  the  agent  of  the  home  government  in  the  enforcement 
of  the  navigation  laws. 

But  these  were  not  the  only  instruments  that  defined  the 
governor's  powers  or  imposed  duties  upon  him.  He  had  fur- 
ther to  govern  "  according  to  such  reasonable  Laws  and  Stat- 
utes" as  might  be  enacted  by  the  provincial  legislature.^  These 
laws  might,  and  frequently  did,  conflict  with  the  directions  of 
the  royal  commission  or  instructions,  and  many  of  them  were 
disallowed  for  that  reason;  but  a  still  larger  number  —  such  as 
those  providing  for  appointments  by  the  assembly,  or  interfer- 
ing with  the  management  of  military  operations,  or  containing 
provisions  inconsistent  with  those  instructions  which  limited 
the  governor's  assent  to  bills  —  were  passed  and  went  into 
operation.  This  result  came  about  partly  because  in  many 
cases  the  acts  were  merely  temporary,  partly  because  they  were 
not  noticed,  and  partly  also  because  the  assembly  was  strong 
enough  to  have  its  own  way.  Such  acts,  though  often  disal- 
lowed, do  not  seem  to  have  been  ordinarily  regarded  as  ipso 
facto  null  and  void  because  they  were  in  conflict  with  a  funda- 
mental law.  2 

The  governor's  authority  was  also  modified  to  an  important 
extent  by  local  usages  of  various  sorts.  Irregularities  once 
weakly  or  inadvertently  acquiesced  in  gradually  became  too 
deeply  rooted  to  be  disturbed,  and  often  resulted  in  a  serious 
diminution  of  the  governor's  powers.  Finally,  with  the  de- 
velopment of  parliamentary  control  over  the  colonies,  another 
element  arose  which  must  be  taken  into  account,  namely,  acts 
of  Parliament  conferring  privileges  and  imposing  duties  upon 
the  provincial  governors.  Such  provisions  appear  in  the  navi- 
gation acts  of  the  reign  of  Charles  II.,  and  they  were  extended 

^  See  commission  to  Bernard,  §  lo. 

2  Note,  however,  the  opinion  of  the  attorne3'-general  of  Barbadoes  on  the 
act  of  the  assembly  of  that  colony  providing  for  the  creation  of  paper 
money.  He  held  that  the  assembly  could  not  enact  a  law  taking  from  the 
governor  powers  conferred  on  him  by  his  commission.  See  Chalmers, 
Opinions,  373  seq. 

7 


98  THE   GOVERNOR'S  EXECUTIVE  POWERS. 

by  statutes  of  William  III.  and  later  sovereigns.  In  general, 
these  acts  imposed  upon  the  governor  the  duty  of  cooperation 
in  the  enforcement  of  the  navigation  laws.^ 

Of  these  various  instruments  by  which  the  governor's  powers 
were  either  conferred  or  defined,  the  most  important  were  the 
commission  and  the  instructions,  interpreted  by  the  analogy 
of  the  royal  prerogative  and  modified  by  usages  springing  up 
in  each  province.  Before  leaving  this  subject  and  proceeding 
to  a  discussion  of  the  particular  powers  granted  and  defined  in 
these  ways,  it  may  not  be  out  of  place  to  quote  the  quaint 
phraseology  of  a  contemporary  writer,  probably  James  Glen, 
once  a  royal  governor  of  South  Carolina.  He  writes:  "The 
Governor  is  appointed  by  Patent,  by  the  title  of  Governor  in 
Chief,  and  Captain-General  in  and  over  the  province;  He 
receives  also  a  Vice  Admiral's  Commission:  But  alas!  these 
high  sounding  titles  convey  very  little  Power,  and  I  have  often 
wished  that  Governors  had  more;  I  cannot,  however,  help 
making  this  disinterested  Remark,  that  though  a  Virtuous 
Person  might  be  trusted  with  a  little  more  power,  perhaps 
there  may  be  as  much  already  given,  as  can  safely  be  delegated 
to  a  weak  or  a  wicked  Person ;  and  considering,  that  such  may 
in  ill  times  happen  to  be  employed,  a  wise  and  good  Prince 
will  therefore  guard  against  it.  "^ 

Historically  one  of  the  first  departments  of  executive  power 
to  assume  prominence  was  the  military  power,  the  command 
of  the  armed  forces  of  the  State.  By  the  English  constitution 
the  king  was  regarded  as  the  commander-in-chief  of  the  army 
and  navy;  he  had  the  sole  right  to  raise  armies  and  fleets  and 
to  regulate  them ;  it  was  his  prerogative  to  establish  and  gar- 
rison forts  and  other  places  of  strength.^  In  this,  as  in  other 
matters,  the  governor  was  the  king's  representative.  His 
commission  authorized  him,  either  directly  or  through  officers 
of  his  appointment,  to  arm,  muster,  and  command  all  persons 

1  See  above,  p.  68. 

2  Glen,  Description  of  South  Carolina^  in  Carroll,  Historical  Collections, 

ii.    220. 

8  Blackstone,  Commentaries,  i.  262. 


MILITARY  POWERS.  99 

residing  within  his  province;  to  transfer  them  from  place  to 
place;  to  resist  all  enemies,  pirates,  or  rebels;  if  necessary, 
to  transport  troops  to  other  provinces  in  order  to  defend  such 
places  against  invasion;  to  pursue  enemies  out  of  the  province; 
in  short,  to  do  anything  properly  belonging  to  the  office  of 
commander-in-chief.  These  powers  were  to  be  exercised  by 
the  governor  independently.  Furthermore,  he  might,  with 
the  advice  and  consent  of  the  council,  establish  fortifications 
and  furnish  them  with  supplies;  ^  and  in  time  of  actual  war 
he  might  also  with  the  council's  consent  execute  martial  law.^ 

Similar  powers  were  given  to  the  proprietors  of  Maryland 
and  Pennsylvania.  The  proprietor  of  Maryland,  for  example, 
was  authorized  to  execute  all  powers  properly  belonging  to  the 
office  of  captain-general;  to  summon  to  his  standards  all  the 
inhabitants  of  the  province;  to  wage  war;  and  to  execute 
martial  law.^  The  Massachusetts  charter  of  1691  conferred 
like  powers  upon  the  new  royal  governor,  but  with  two  impor- 
tant restrictions,  namely,  that  the  governor  was  forbidden  to 
take  men  out  of  the  colony  without  the  consent  of  the  General 
Court  or  without  their  own  free  consent,  or  to  execute  martial 
law  without  the  approval  of  the  council.* 

The  governor  was  thus  the  head  of  the  provincial  military 
system,  with  the  right  of  appointing  subordinate  military  offi- 
cers, and  also  of  calling  upon  all  inhabitants  for  military  ser- 
vice in  the  defence  of  the  province  or  in  the  suppression  of 
rebellion.  He  was  not,  however,  permitted  by  his  instructions 
to  declare  martial  law  except  in  time  of  war,  and  then  only 
with  the  advice  and  consent  of  the  council. 

In  practical  operation,  however,  the  scope  of  the  military 
powers  of  the  governor  was  far  from  being  as  large  as  the  terms 

1  Commission  to  Bernard  of  New  Jersey,  1758,  §§  19,  20;  to  Allen  of  New 
Hampshire,  1692,  p.  60 ;  to  Cornbury  of  New  Jersey,  1702,  p.  496;  to  Dobbs 
of  North  Carolina,  1761,  p.  529. 

2  Instructions  to  Bernard,  §  72;  to  Dudley  of  Massachusetts,  1702,  p. 
no;  to  Dobbs,  1754,  §  113  ;  to  Dunmore  of  Virginia,  1771,  §  78. 

8  Charter  of  Maryland,  1632,  §  12,  in  Bozman,  History  of  Maryland,  ii. 
9;  charter  to  William  Penn,  16S1,  in  Poore,  Charters  and  Constilutions, 
ii.  1509. 

*  Massachusetts  charter  of  1691,  in  Poore,  i.  942. 


100  THE  GOVERNOR'S  EXECUTIVE  POWERS. 

of  the  commission  would  indicate.  Even  if  the  governor's 
powers  as  thus  defined  received  the  fullest  recognition,  they 
must  have  been  quite  useless  without  financial  support  from 
the  assembly,  a  support  which  was  often  grudgingly  and  uncer- 
tainly given.  ^  Moreover,  some  positive  limitations  were  im- 
posed either  by  law  or  by  custom,  as,  for  example,  in  the 
instance  already  noticed  regarding  the  clause  of  the  Massa- 
chusetts charter  which  required  the  consent  of  the  General 
Court  for  the  transportation  of  troops  out  of  the  province. 
The  same  principle,  though  not  similarly  embodied  in  the 
fundamental  laws  of  the  various  provinces,  seems  to  have  been 
insisted  on  by  other  provincial  assemblies.^ 

Furthermore,  the  right  of  the  provincial  governor  to  com- 
mand the  military  service  of  the  citizens  and  to  maintain 
proper  discipline  depended  largely,  even  for  its  legal  sanction, 
upon  acts  of  the  assembly,  which  were  known  as  the  militia 
laws.  The  general  character  of  this  legislation  may  be  suffi- 
ciently indicated  by  citing  as  an  example  the  Georgia  statute 
of  1755.  This  law  provided,  in  the  first  place,  for  the  enlist- 
ment of  all  males  between  the  ages  of  sixteen  and  sixty,  and 
authorized  the  governor  to  issue  orders  regulating  the  number 
of  men  in   each   company.     It   fixed  penalties  for  neglect   of 

1  Governor  Dinwiddie  of  Virginia  writes  on  one  occasion  that  it  is  im- 
practicable to  conduct  any  expedition  with  dependence  upon  assemblies. 
See  Dinwiddie  Papers,  i.  325. 

2  For  assertions  of  the  operation  of  this  principle  in  Virginia,  see  Ibid., 
i.  135,  377;  Hening,  Statutes,  vi.  548,  vii.  17.  A  Maryland  act  of  1650 
denied  the  governor's  right  to  compel  freemen  to  serve  out  of  the  province ; 
but  in  1 661  this  authority  was  granted  for  a  brief  period.  In  1757,  however. 
Governor  Sharpe  of  Maryland  had  to  meet  the  same  objections  from  the 
assembly  to  the  call  for  service  beyond  the  frontier  {Matylatid  Archives, 
i.  302,  407,  ix.  121  seq.).  In  the  same  year  the  Pennsylvania  assembly  re- 
fused to  allow  the  militia  of  that  province  to  be  transported  to  the  Carolinas 
{Ibid.,  ix.  7).  In  1759  the  North  Carolina  militia  refused  to  march  out  of 
the  province  against  the  Cherokees,  on  the  ground  that  they  were  not 
obliged  by  law  to  do  so  {North  Carolina  Records,  \i.  irg,  141-142).  The 
Georgia  militia  law  of  1755  expressly  confined  the  use  of  the  militia  to  the 
province  (Jones,  Colonial  Acts  of  Georgia,  p.  9,  §  14).  Cf.  the  letter  of 
Governor  Morris,  New  Jersey  Doctnnents,  vi.  186;  Allinson,  Acts  of 
Assevibly,  1746,  ch.  200,  and  1757,  ch.  294. 


MILITIA   LAWS.  lOl 

military  obligations  by  officers  or  men.  It  authorized  the 
governor,  in  case  of  invasion  or  insurrection,  to  raise,  with 
the  advice  and  consent  of  his  council,  as  many  regiments  as 
he  might  consider  necessary  and  march  them  to  such  places 
within  the  province  as  he  might  think  fit.  It  gave  him  author- 
ity also  to  draft  men  and  to  impress  boats  and  arms.^ 

The  assemblies  realized  the  importance  of  this  method  of 
holding  the  governor  in  check,  and  often  pushed  it  to  an 
extreme  point,  requiring  the  governor,  as  a  rule,  to  depend 
upon  temporary  acts  for  the  enforcement  of  the  simplest  mili- 
tary obligations.  Terms  of  one,  two,  and  three  years  were 
commonly  set  for  the  duration  of  these  militia  acts.^  Some 
of  the  colonies  remained  for  long  periods  of  time  without  any 
militia  law,  or  at  least  without  any  which  was  effective. 
In  North  Carolina  it  was  only  after  several  years  of  unsuccess- 
ful effort  on  the  part  of  the  governor  that  the  assembly  was 
finally  persuaded  to  pass  satisfactory  measures.^  When  the 
acts  were  of  short  duration,  it  was  often  difficult  to  secure 
regular  renewals.  In  1752,  for  example.  Governor  Clinton  of 
New  York  complained  that  for  four  years  the  assembly  had 
neglected  to  pass  the  regular  annual  militia  law.^  In  New 
Jersey,  as  well  as  in  Pennsylvania,  the  Quaker  influence  was  a 
source  of  embarrassment.^ 

These  were  not  the  only  ways  in  which  the  assemblies  showed 
their  jealousy  of  the  governor's  military  powers.  An  interest- 
ing illustration  of  the  kind  of  opposition  which  a  governor  had 
to  meet  in  the  conduct  of  military  operations  is  to  be  found  in 

^  Jones,  Colonial  Acts  of  Georgia^  9  seq.  Cf.  Acts  and  Laws  of  New 
Ha7npshire  (1771),  ch.  (il  (act  of  171 8). 

2  The  New  York  and  New  Jersey  acts  usually  ran  for  one  year  only 
(^Neiv  York  Acts  of  Assembly,  1691-1718,  pp.  53,  137,  146,  149,  216,  232; 
Laws  of  New  York,  1691-1773,  chs.  563,  573,  598,  617;  Allinson,  N^ew 
fersey  Acts  of  Assembly,  1746,  ch.  200).  In  Virginia,  Marj-land,  and  Penn- 
sylvania the  periods  varied  from  one  to  seven  years  (Hening,  Statutes  of 
Virginia,  v.  99,  vi.  118,  350,  544,  564,  vii.  92,  106,  115,  364;  Bacon,  Laws  of 
Maryland,  1692,  ch.  83,  1714,  ch.  3,  2in6.  passim ;  Cooper,  Statutes  of  South 
Carolijia,  ix.  passim,  especially  p.  645). 

*  North  Carolina  Records,  iv.  816,  S34,  917. 

*  New  York  Documents,  vi    765. 

5  New  fersey  Documents,  vi.  104-105.     Cf.  Ibid.,  iii.  167,  338. 


I02  THE   GOVERNOR'S  EXECUTIVE  POWERS. 

the  conflict  between  Governor  Sharpe  and  the  Maryland  assembly 
during  the  French  and  Indian  War.  The  governor  wished  to 
collect  troops  for  an  expedition  to  the  westward,  claiming  that 
he  was  empowered  to  do  so  both  by  his  commission  and  by 
an  act  of  171 5,  which,  as  he  held,  was  still  in  force.  The 
assembly  denied  both  of  these  propositions,  and  moreover 
insisted  that  the  act  in  question  applied  only  to  cases  of  actual 
invasion.  The  governor,  on  the  other  hand,  maintained  that 
there  was  a  state  of  invasion ;  whereupon  the  assembly  argued 
that,  although  there  had  been  incursions,  there  had  been  no 
invasion,  a  distinction  which  the  governor  characterized  as 
nothing  but  a  quibble.  The  assembly  held  that  the  mere 
apprehension  of  an  invasion  was  not  a  sufficient  ground  for 
marching  the  militia;  while  the  governor  very  naturally  in- 
sisted that  such  an  interpretation  would  prevent  him  from 
taking  action  until  the  enemy  might  be  in  the  heart  of  the 
province.  1  To  illustrate  popular  opinion  within  the  province. 
Governor  Sharpe  cites  the  proposal  of  Hammond,  a  leading 
member  of  the  assembly.  This  gentleman  proposed  merely  to 
"  recommend  "  the  people  of  the  province  to  supply  themselves 
with  arms  and  to  learn  how  to  use  them,  saying  that,  in  his 
opinion,  anything  more  than  such  a  recommendation  would 
"abridge  the  Liberty,  to  which  as  Englishmen  they  have  an 
inviolable  Right.  "2 

The  Pennsylvania  militia  law  passed  in  1755  was  characterized 
by  Governor  Dinwiddle  of  Virginia  as  a  "Joke  on  all  military 
Affars,"^  and  was  finally  disallowed  by  the  home  government 
because  it  provided  for  the  election  of  officers  by  ballot  and 
failed  to  fix  proper  penalties  for  neglect  of  military  obliga- 
tions.*    Occasionally  in  times  of  pressing  danger  the  assembly 

1  For  this  controversy,  see  Votes  and  Proceedings  of  the  Lower  House, 
1758,  Feb.  23,  March  6,  April  i,  May  5,  8;  Sharpe  to  Pitt,  August,  1758, 
Maryland  A7rlnves,  ix.  249. 

2  Sharpe  to  Calvert,  Ibid.,  vi.  491. 
8  Dinwiddie  Papers,  ii.  313. 

^  Votes  of  Pennsylvania,  iv.  629.  In  June,  1757,  the  assembly  voted 
that  there  was  no  propriety  in  subjecting  the  people  of  a  whole  community 
to  the  rules  and  regulations  imposed  upon  the  mercenary  soldiers  of  the 
crown.     In  response  to  the  governor's  suggestion  that  the  Delaware  assem- 


MILITARY  SERVICE   OUTSIDE   OF  THE  PROVINCE.    103 

saw  the  necessity  of  giving  the  governor  a  looser  rein ;  ^  but 
the  tendency  was  rather  to  tie  up  the  appropriations  so  closely 
as  to  limit  his  freedom  of  action  as  far  as  possible.  It  will  be 
seen  later  that  this  process  was  carried  so  far  as  to  deprive  the 
governor  of  his  legitimate  executive  functions. 

In  a  consideration  of  the  militia,  as  in  other  departments  of 
the  colonial  government,  the  double  character  of  the  governor 
must  be  kept  in  mind.  He  was  the  head  of  the  provincial 
administration,  but  he  was  more  than  that:  he  was  the  agent 
of  the  crown,  charged  with  the  maintenance  of  its  interests  in 
America;  and  consequently,  in  the  discharge  of  his  duties  he 
was  often  led  beyond  the  limits  of  his  own  province.  In  some 
instances  royal  governors  were  invested  with  a  certain  control 
of  the  militia  of  the  neighboring  charter  colonies  :  for  example. 
Governor  Phips  of  Massachusetts  was  put  in  command  of  the 
militia  of  Rhode  Island  and  New  Hampshire,  and  Governor 
Fletcher  of  New  York  in  command  of  the  Connecticut  militia. 
Both  of  these  cases,  however,  may  fairly  be  regarded  as  excep- 
tional; and  ultimately  the  charter  colonies  asserted  success- 
fully their  independence  in  this  as  in  other  departments  of 
government.  2 

bly  had  set  a  good  example,  particularly  by  conferring  upon  the  governor 
the  right  to  make  regulations  for  the  government  of  the  militia,  the  assem- 
bly declared  that  the  governor  would  find  it  difficult  to  persuade  a  free 
people  to  agree  with  him  {Ibid.,  iv.  716). 

1  In  Virginia,  for  example,  the  governor  was  at  times  allowed  a  moder- 
ate discretion  in  the  use  of  funds  for  military  purposes  (see  e.  g.  Hening, 
Stahttes,  v.  93).  For  similar  acts  in  South  Carolina,  see  Cooper,  Statutes, 
ii.  320,  333.  The  governor  had  authority  over  regular  troops  only  when  no 
general  officer  of  the  crown  was  in  the  province;  at  such  times  he  might 
give  orders  to  the  military  for  the  service  of  the  province  (see  Stokes,  Con- 
stitJition  of  the  British  Colonies,  187-188). 

2  The  commission  to  Phips  first  named  him  captain-general  in  Rhode 
Island,  Connecticut  and  New  Hampshire.  Phips  visited  Rhode  Island,  but 
was  unsuccessful  in  his  attempt  to  secure  recognition  (Hutchinson,  History 
of  Massachusetts,  \\.  20;  New  York  Docuvients,  iv.  30).  Governor  Fletcher 
of  New  York  found  the  same  difficulty  in  enforcing  his  authority  in  Con- 
necticut under  his  commission  of  1693.  He  visited  the  latter  colony  and 
offered  Governor  Treat  a  commission  for  the  command  of  the  Connec- 
ticut militia.  Treat,  however,  refused  this  recognition  of  Fletcher's  supe- 
rior  authority,   and   his   example   was   followed   by  other  officers   of    the 


104  THE  GOVERNOR'S  EXECUTIVE  POWERS. 

Nevertheless,  the  governor  did  have  an  important  part  in 
the  general  military  operations  carried  on  by  the  crown  in 
America.  As  early  as  1687,  Governor  Dongan  received  a  royal 
letter  directing  him  to  defend  the  Indian  allies,  to  demand  sat- 
isfaction from  the  governor  of  Canada,  and  to  call  on  the 
other  provincial  governments  for  assistance.  ^  In  1692,  Gov- 
ernor Fletcher,  then  of  Pennsylvania,  was  directed  to  assist 
the  governor  of  New  York  with  troops,  and  to  agree  with  the 
governors  of  New  England,  Maryland,  and  Virginia  about  the 
quotas  required  from  their  respective  colonies.^  A  circular 
letter  of  the  year  1754,  sent  to  the  governors  of  the  different 
colonies,  shows  fairly  well  the  sort  of  cooperation  expected. 
The  circular  begins  with  an  account  of  the  military  prepara- 
tions then  making,  and  proceeds  with  instructions  to  the  gov- 
ernors to  take  proper  measures  for  collecting  troops.  They 
were  to  provide  stores,  to  aid  the  royal  officers  in  their  move- 
ments, to  enforce  the  orders  of  the  latter,  to  secure  adequate 
appropriations  from  their  assemblies,  and  finally  to  confer  with 
the  royal  officers  and  with  the  other  governors  in  regard  to  the 
general  plan  of  operations.^  In  response  to  these  directions, 
the  governors  of  North  Carolina,  Maryland,  and  Virginia  ar- 

colonial  militia.  Fletcher  then  issued  a  commission  declaring  all  former 
commissions  invalid;  but  he  was  finally  obliged  to  leave  the  colony  without 
any  tangible  results  to  show  for  his  visit.  The  Board  of  Trade  decided 
that  the  crown  might  appoint  a  commander-in-chief  for  the  colonies  in  time 
of  war,  but  that  in  time  of  peace  the  mihtia  of  each  colony  should  be  com- 
manded solely  by  its  governor  according  to  its  charter.  In  the  commissions 
and  instructions  to  Dudley  and  Shute  of  Massachusetts  there  were  similar 
provisions  with  reference  to  the  Rhode  Island  militia.  See  Fletcher's  com- 
mission. New  York  Dociunetits,  iv.  29;  Trumbull,  History  of  Connecticut, 
i.  392-395,  and  Appendix,  xxv. ;  Dudley's  instructions,  pp.  101-102.  Cf. 
Chalmers,  Revolt,  ii.   n  ;  New  Jersey  Docu7nents,  ii    411. 

^  New  York  Documents,  iii.  503. 

2  Maryland  Archives,  viii.  540.  In  1709  three  governors,  Ingoldsby  of 
New  York,  Saltonstall  of  Connecticut,  and  Gookin  of  Pennsylvania,  sat  to- 
gether as  a  military  council  at  Fort  Ann,  issuing  commissions  to  military 
commanders  and  signing  military  orders  of  various  sorts.  It  is  noticeable 
that  the  list  includes  a  proprietary  and  an  elective  as  well  as  a  royal  gov- 
ernor.    See  New  Jersey  Documents,  xiii.  343,  346. 

8  North  Carolina  Records,  v.  144  d. 


THE   GOVERNOR  AS   VICE-ADMIRAL.  105 

ranged  a  plan  for  the  Ohio  expedition,  with  Governor  Sharpe 
of  Maryland  as  commander  of  the  combined  forces.  ^  The 
governor  most  prominent  in  this  line  of  activity  was  Shirley  of 
Massachusetts,  who  held  at  one  time  the  chief  command  of  all 
the  forces  in  America. ^  Governor  Sharpe  of  Maryland  was 
conspicuously  active  in  the  same  way,  as  was  also  Governor 
Dinwiddle  of  Virginia.^ 

The  same  difficulties  which  the  governor  had  to  meet  in 
conducting  the  military  administration  of  his  own  province  of 
course  made  themselves  felt  with  additional  force  in  this 
broader  sphere  of  activity.  Popular  jealousy  of  the  governor 
was  reinforced  by  the  strongly-marked  spirit  of  local  selfish- 
ness then  prevalent  among  the  colonists ;  and  furthermore,  as 
has  been  already  shown,  there  was  in  the  provincial  assemblies 
a  strong  opposition  to  any  extended  plan  of  military  operations 
beyond  the  lines  of  their  respective  provinces. 

In  this  study  of  the  governor's  military  functions,  it  has 
been  found,  first,  that  he  was  the  commander-in-chief  of  the 
military  forces  of  the  province,  charged  with  its  defence  and 
authorized  by  his  commission  to  demand  the  military  service 
of  its  inhabitants;  secondly,  that  he  was  intrusted  with  impor- 
tant responsibilities  in  connection  with  the  general  military 
operations  of  the  crown  in  America;  and,  finally,  that  in  both 
*  of  these  directions  he  was  closely  dependent  upon  the  assembly, 
not  only  for  supplies,  but  also  for  the  legal  machinery  neces- 
sary for  the  enforcement  of  his  military  authority. 

Besides  being  commander-in-chief  of  the  provincial  forces, 
the  governor  had  also  the  title  of  vice-admiral,  though  this 
name  carried  with  it  very  little  real  power,  inasmuch  as  the 
colonies  had  of  course  no  naval  establishments  worth  men- 
tioning. The  governor's  admiralty  powers,  as  defined  in  his 
vice-admiral's  commission,  gave  him  authority  to  collect  the 

*  North  Carolina  Records^  v.  144  f. 

2  There  is  a  record  of  a  council  of  war,  held  by  Governor  Shirley  in  his 
capacity  of  commander-in-chief,  at  which  were  present  the  royal  governor  of 
New  York,  the  proprietary  governors  of  Maryland  and  Pennsylvania,  and 
the  elective  governor  of  Connecticut.     See  Maryland  Archives,  vi.  315. 

«  Ibid.,  vols,  vi.,  ix.,  passim;  especially  vi.  3,  73,  107,  350,  ix.  323. 


I06  THE   GOVERNOR'S  EXECUTIVE  POWERS. 

royal  admiralty  dues  and  to  punish  all  offenders  against  mari- 
time law;  and  for  these  purposes  he  was  to  maintain  and 
supervise  admiralty  courts  and  to  appoint  all  necessary  sub- 
ordinates. He  might  issue  commissions  to  ships'  officers 
authorizing  them  to  execute  martial  law  on  board  their  vessels, 
and  he  might  also  grant  letters  of  marque  and  reprisal,  though 
this  latter  right  was  closely  limited  and  could  not  be  inde- 
pendently used  except  against  powers  at  war  with  Great 
Britain.  When  war  had  actually  broken  out,  such  commis- 
sions to  privateers  were  usually  issued  on  the  governor's 
warrant  by  the  judge  of  the  Admiralty  Court,  who  was  an 
appointee  of  the  crown.  The  governor  was  also  brought  into 
direct  relations  with  the  royal  naval  officers,  to  whom  he  was 
directed  to  give  due  assistance.^ 

One  of  the  usual  functions  of  the  executive  in  any  consti- 
tution is  that  of  representing  the  State  in  its  relations  with 
other  States,  that  is  to  say,  in  the  department  of  foreign  rela- 
tions. This  function  was  one  of  the  prerogatives  of  the 
English  crown.  Blackstone  says:  "With  regard  to  foreign 
concerns,  the  king  is  the  delegate  or  representative  of  his 
people.  .  .  .  What  is  done  by  the  royal  authority,  with  regard 
to  foreign  powers,  is  the  act  of  the  whole  nation."  As  a  con- 
sequence of  this  principle,  the  king  had  the  prerogative  of  war 
and  peace,  the  sole  right  of  sending  and  receiving  ambassadors 
and  of  making  treaties  with  foreign  States  and  princes. ^  It 
is,  of  course,  at  once  clear  that  this  principle,  if  applicable  to 
the  governor  at  all,  could  be  so  only  in  an  extremely  limited 
sense,  inasmuch  as  the  provincial  governor  was  not  the  head  of 
a  state.  The  province,  if  it  might  be  regarded  as  a  state  in 
any  sense,  was  clearly  a  dependent  one,  having  no  relations 
with  other  states  except  through  the  medium  of  the  home  gov- 

^  See  the  vice-admiral's  commission  to  the  governor  of  New  Jersey,  1759, 
New  Jersey  Documents,  ix.  195;  instructions  to  Cornbury  of  New  Jersey, 
1702,  §§  60-62;  to  Dunmore  of  Virginia,  1771,  §§  61,  63;  to  Dudley  of 
Massachusetts,  1702,  pp.  no,  114;  to  Bernard  of  New  Jersey,  1758,  §§  76- 
77;  Stokes,  Constitiition  of  the  British  Colo7iies,  185;  commission  to 
Bernard,  §§  21,  22. 

"^  Blackstone,  Commentaries,  i.  252-261. 


EXTERNAL  RELATIONS.  10/ 

ernment.  Nevertheless,  each  colony  had  two  important  kinds 
of  external  relations,  to  which  may  be  applied  in  a  rough  way 
the  principle  already  stated.  These  were  its  relations  with 
the  Indian  tribes  on  its  frontiers  and  with  other  colonies. 

The  statements  of  the  two  proprietary  charters  in  regard  to 
external  affairs  may  first  be  considered.  The  Maryland  charter 
referred  to  the  proximity  of  barbarous  tribes,  and  simply  gave 
the  proprietor  power  to  make  war  against  such  enemies  of  the 
province.^  The  charter  to  William  Penn  contained  a  similar 
article,  preceded,  however,  by  another  which  expressly  denied 
the  right  of  the  proprietor  to  maintain  any  correspondence  with 
states  at  enmity  with  the  crown  or  to  declare  war  against 
friendly  states.^  This  article,  considered  in  connection  with 
the  absence  of  any  clause  in  the  Maryland  charter  conferring 
the  right  of  making  war  and  peace,  appears  to  give  evidence 
that  the  proprietors  had  no  independent  authority  other  than 
the  mere  right  of  protecting  themselves  from  attack. 

The  case  is  still  clearer  when  the  position  of  the  royal  gov- 
ernor is  considered.  Obviously,  the  subordinate  officer  of  the 
crown  could  not  have  the  power  to  involve  the  state  in  war  or 
to  conclude  any  authoritative  peace,  —  a  plain  inference,  which 
is  supported  by  the  terms  of  the  royal  instructions.  By  one  of 
his  instructions  the  governor  was  authorized  to  take  temporary 
action,  with  the  advice  and  consent  of  the  council,  in  matters 
not  covered  by  his  commission;  but  there  was  a  proviso  that 
he  was  not  under  any  circumstances  to  declare  war,  except 
against  the  Indians  in  case  of  emergency;  and  even  in  such 
cases  immediate  notice  was  to  be  given  to  the  home  govern- 
ment.^ To  show  that  this  exceptional  power  of  declaring  war 
was  not  only  granted,  but  was  actually  used  in  a  number  of 
instances,  two  or  three  examples  will  suffice.     Thus  in  1722 

1  Bozman,  History  of  Maryland,  ii.  g. 

2  Poore,  Charters  and  Co7istilntions,  ii.  1509. 

8  Instructions  to  Bernard  of  New  Jersey,  1758,  §  88;  to  Allen  of  New 
Hampshire,  1692,  p.  68;  to  Dudley  of  Massachusetts,  1702,  p.  115;  to 
Dobbs  of  North  Carolina,  1754,  §  129;  to  Dunmore  of  Virginia,  1771.  §  S?- 
Note  also  the  clause  in  regard  to  maintaining  friendly  correspondence  with 
the  Indians:  instructions  to  Bernard,  §  74  (instruction  to  encourage  the 
Indians) ;  to  Dudley,  p.  113;  to  Dobbs,  §  125 ;  to  Dunmore,  §  59. 


I08  HE   GOVERNOR'S  EXECUTIVE  POWERS. 

Governor  Shute  of  Massachusetts,  with  the  advice  of  his 
council,  issued  a  declaration  of  war  against  the  Indians,  and 
in  1755  Governor  Shirley  was  formally  requested  to  do  the 
same.^  In  1745  the  governor  and  council  of  New  Hampshire 
also  agreed  upon  a  similar  declaration  of  war.^ 

The  commission  and  instructions  contained  no  distinct  grant 
of  power  to  make  treaties;  the  governor  was  simply  told  in 
somewhat  vague  terms  to  maintain  a  good  correspondence  with 
the  Indians.^  That  treaties  were  frequently  made  by  the  gov- 
ernors, however,  is  proved  by  abundant  examples,  one  of  which 
is  seen  in  the  case  of  Governor  Glen  of  South  Carolina,  who 
in  a  letter  of  the  year  1746  describes  his  circuit  among  the 
Indian  tribes  for  the  purpose  of  negotiating  with  them.*  In 
1749  and  1754  Indian  treaties  were  also  negotiated  by  the  gov- 
ernors of  the  provinces  of  New  Hampshire  and  Massachusetts.^ 
When  these  cases  and  others  that  might  be  cited  are  borne  in 
mind,  together  with  that  clause  of  the  governor's  instructions 
which  authorized  him,  in  matters  not  covered  by  his  instruc- 
tions, to  take  action  with  the  advice  and  consent  of  his  council, 
it  is  clear  that  the  governor  with  the  council  had  in  this  lower 
plane  the  treaty-making  power.^  Nevertheless,  it  should  be 
said  that  toward  the  close  of  the  colonial  period  the  governor's 
sphere  of  activity  was  limited  by  the  appointment  of  special 

1  Hutchinson,  History  of  Massachusetts,  ii.  251 ;  Massachusetts  Province 
Laws,  iii.  948  (extract  from  council  records). 

^  New  Haf/ipshire  Provincial  Paprs,  v.  105,  374. 

5  See  above,  p.  107,  note  3. 

*  South  Carolina  Historical  Society,  Collections,  ii.  294. 

6  New  Haittpshire  Provincial  Papers,  v.  131  ;  Hutchinson,  History  of 
Massachusetts,  iii.  26.  Cf.  Provincial  Papers,  i.  588,  iii.  545-546,  693  seq., 
705;  Hutchinson,  ii.  124. 

e  Cf.  North  Carolina  Records,  ii.  56;  Dinwiddle  Papers,  ii.  298.  The 
governor  seems  also  to  have  had  more  or  less  right  of  supervision  over  the 
ordinary  intercourse  between  Indians  and  whites.  In  Pennsylvania  and 
Georgia  there  were  laws  requiring  the  governor's  hcense  for  trade  with  the 
Indians.  In  Virginia  and  North  Carolina,  at  least,  the  governor's  consent 
was  required  for  the  purchase  of  land  from  the  Indians.  See  instructions 
to  Dunmore  of  Virginia,  1771,  §  59;  Pennsylvania  Records,  v.  194-196; 
New  Hampshire  Provi7icial  Papers,  ii.  17  ;  Jones,  Colonial  Acts  of  Georgia, 
190;  Hening,  Statutes,  iv.  461  ;  Martin,  IredelPs  Public  Acts,  i.  23. 


INTER-COLONIAL   RELATIONS.  109 

royal  agents  for  Indian  affairs,  and  later  by  that  of  a  general 
superintendent  of  Indian  affairs. 

The  governor  was  also  the  natural  representative  of  the 
province  in  its  relations  with  other  colonies.  It  has  been 
seen  that,  in  the  general  system  of  military  operations  in  the 
country,  the  governors  were  necessarily  brought  into  close 
correspondence  with  each  other;  and  also  that  in  the  closely 
related  department  of  Indian  affairs  the  colonies  were  led  into 
similar  communication  and  correspondence,  conducted  usually 
by  the  governor,  though  often  on  consultation  with  the  as- 
sembly.^ Among  the  most  common  subjects  of  negotiation 
among  the  different  colonies  were  various  questions  relating 
to  boundaries.  At  first  such  negotiations  seem  to  have  been 
left  to  the  governor; 2  but  gradually  there  grew  up  a  custom  of 
referring  them  to  commissioners  chosen  by  the  assemblies,  a 
method  which  was  distinctly  recommended  by  royal  instruc- 
tions of  the  year  1730.^ 

In  conclusion,  then,  it  may  be  said  that,  although  the  gov- 
ernor had  little  or  nothing  to  do  with  what  may  properly  be 
called  foreign  affairs,  yet  he  was  the  natural  representative  of 
the  colony  in  its  external  relations.  He  had  a  limited  power 
of  declaring  war  against  the  Indians,  and  he  might  make 
treaties  with  them,  though  in  both  these  cases  the  consent  of 
the  council  was  required.  He  was  also  the  natural  represent- 
ative of  his  own  province  in  its  dealings  with  other  provinces, 
though  even  here  his  activity  was  limited  to  a  certain  extent 

^  Hutchinson,  History  of  Massachtisetts,  ii.  287;  Marylatid  Archives, 
vi.  10,  vii.  265,  319. 

2  North  Carolina  Records,  i.  505,  ii.  204;  Maryland  Archives,  iii.  496. 

8  New  Hampshire  Provincial  Papers,  iv.  568.  There  is  one  other  inter- 
esting phase  of  intercolonial  relations  which  is  worth  noting,  namely,  that 
relating  to  the  extradition  of  escaped  criminals.  Instances  of  this  sort  were 
rare ;  but  when  they  did  occur  the  governor  seems  to  have  been  the  medium 
of  communication.  Thus  in  1698  Governor  Basse  of  New  Jersey  refused 
to  obey  the  order  of  the  New  York  Admiralty  Court  for  the  surrender  of  a 
pirate  (^New  Jersey  Doctiments,  ii.  229);  and  in  1759  Governor  Sharpe  of 
Maryland  sent  to  the  governor  of  Pennsylvania  an  order  for  the  extradition 
of  offenders  who  had  escaped  to  that  province  {Alary land  Archives,  ix. 
335-336). 


no  THE  GOVERNOR'S  EXECUTIVE  POWERS. 

by  the  participation  of  the  assembly  through  its  election  of 
commissioners. 

Another  essential  part  of  the  royal  prerogative  was  the 
appointing  power.  The  king  was  the  fountain  of  honor  and 
privilege,  with  the  right  to  establish  offices  and  to  dispose  of 
them;^  and  this  essentially  executive  power  was  naturally 
intrusted  to  the  provincial  governor.  Both  the  Maryland  and 
the  Pennsylvania  charter  conferred  it  in  express  terms  upon 
the  proprietor,  who  may  be  regarded  as  the  governor-in-chief 
of  the  proprietary  province.  The  Maryland  proprietor  was 
empowered  to  appoint  judges,  magistrates,  and  other  officers 
"of  what  kind,  for  what  cause,  and  with  what  power  soever," 
whether  on  land  or  sea;^  and  similar  authority  was  given  to 
William  Penn  and  his  heirs. ^  The  Massachusetts  charter  of 
1691  gave  the  governor  somewhat  more  limited  powers,  allow- 
ing him  to  appoint  judicial  and  military  officers,  but  requiring 
that  important  administrative  positions  be  filled  by  the  Gen- 
eral Court.*  The  royal  commissions  conferred  the  right  of 
appointment  under  two  separate  heads,  providing  first  that  the 
governor  have  the  right  of  naming  military  officers,  a  natural 
part  of  his  prerogative  as  commander-in-chief;  and  secondly 
that,  in  consequence  of  his  general  obligation  to  maintain 
courts  and  enforce  the  law,  he  should  have  the  right  to  appoint 
civil  officers  of  various  sorts. 

The  authority  to  name- military  officers  was  so  plainly  a 
matter  of  course  that  it  was  generally  admitted.  Moreover, 
in  this  class  of  appointments  the  governor  was  independent, 
being  required  by  neither  commission  nor  instructions  to  ask 
consent  of  the  council.  This  independence  was,  however,  a 
natural  consequence  of  the  peculiar  character  of  military  com- 
mand,  with    its  necessity  for  a  concentration   of  authority.^ 

Nevertheless,    in   Pennsylvania  an  effort  was  made  to    limit 
^  Blackstone,  Cotmnetitaries,  i.  271. 

2  Charter  of  1632,  §  vii.,  in  Bozman,  History  of  Maryland,  ii.  9. 
s  Charter  of  1681,  in  Poore,  Charters  and  Constitutions,  ii.  1509- 
*  Ibid.,  i.  942. 

^  See  commission  to  Bernard  of  New  Jersey,  1758,  §  19;  to  Allen  of 
New  Hampshire,  1692,  p.  60;  to  Dobbs  of  North  Carolina,  1761,  p.  529. 


APPOINTMENT  OF  CIVIL    OFFICERS.  Ill 

somewhat  this  power  of  independent  appointment  by  a  provi- 
sion of  the  militia  act,  which  required  the  election  of  officers 
by  ballot.  This  obnoxious  provision,  however,  led  to  the  dis- 
allowance of  the  act  of  1755.^ 

The  appointment  of  civil  officers  is  a  subject  of  much  more 
importance.  The  governor's  commission  empowered  him  to 
appoint  judges,  justices  of  the  peace,  sheriffs,  "and  other 
necessary  Officers  and  Ministers  ...  for  the  better  Adminis- 
tration of  Justice  and  putting  the  Laws  in  Execution.  "^  This 
power  of  appointment  appears  to  have  been  at  first  unlimited; 
the  only  restriction  imposed  was  the  direction  "to  take  care" 
in  the  nomination  of  the  principal  officers  to  select  "men  of 
good  life,"  of  "good  estates  and  abilities,"  "well  affected  to 
Our  Government,"  and  not  "necessitous  people,  or  much  in 
debt."^  The  power  of  removal  was  given  in  terms  almost  as 
liberal ;  the  governor  was  merely  forbidden  to  make  removals 
without  good  cause,  a  statement  of  which  was  to  be  duly  sub- 
mitted to  the  home  government.*  Soon,  however,  it  was  felt 
that  additional  safeguards  were  necessary,  particularly  in  order 
to  secure  proper  judicial  appointments;  whereupon  the  rule 
was  made  that  commissions  to  judges  and  justices  of  the  peace 
should  be  issued  only  with  the  advice  and  consent  of  the 
council.^  In  1754  the  Board  of  Trade  declared  that  the  rule 
of  concurrent  action  by  the  council,  though  plainly  implied  in 
previous  instructions,  had  not  been  strictly  adhered  to;  conse- 
quently the  governor  was  then    bound,    in  more    specific  and 

1  Votes  of  Pemisylvania^  iv.  629.  On  this  whole  paragraph,  cf.  above, 
pp.  99  seq. 

2  Commission  to  Bernard  of  New  Jersey,  1758,  §16;  to  Allen  of  New 
Hampshire,  1692,  p.  59;  to  Dobbs  of  North  Carolina,  1761,  p.  528. 

8  Instructions  to  Allen,  p.  64;  to  Dudley  of  Massachusetts,  1702,  p.  102; 
to  Dobbs,  1754,  §  9  ;  to  Bernard.  §  9. 

*  See  instructions  to  Allen  of  New  Hampshire,  1692,  p.  66;  to  Cornbury 
of  New  Jersey,  1702,  §  41.  It  should  be  said,  however,  that  the  Massachu- 
setts charter  of  1691  distinctly  required  the  consent  of  the  council  to  all  civil 
appointments  made  by  the  governor.  See  Poore,  Charters  atid  Constitu- 
tions, i.  942. 

6  Instructions  to  Hunter  of  New  York,  1709,  §  43;  to  Burrington  of 
North  Carolina,  1730,  §  44;  to  Morris  of  New  Jersey,  1738,  §  36. 


112  THE   GOVERNOR'S  EXECUTIVE  POWERS. 

unmistakable  terms,  not  to  appoint  judicial  officers  without 
the  advice  and  consent  of  at  least  three  councillors  signified  in 
council.^ 

After  this  glance  at  the  formal  provisions  of  the  commis- 
sion and  instructions,  the  actual  practice  of  the  different 
colonies  may  well  be  examined.  In  the  first  place,  the  con- 
current action  of  the  council  in  appointments  was  so  fruitful  a 
source  of  controversy  that  it  is  difficult  to  lay  down  any  general 
rule  applicable  to  the  practice  of  all  the  colonies.  On  the  one 
hand,  the  council  sometimes  undertook  to  assume  undue  con- 
trol. Thus  in  Massachusetts  the  actual  nomination  of  officers 
was  at  first  left  in  the  hands  of  the  council,  from  which  it 
was  finally  wrested  with  considerable  difficulty. ^  In  North 
Carolina  also  the  records  show  that,  during  the  period  of 
the  royal  government,  justices  and  sheriffs  were  regularly 
appointed  and  removed  by  orders  in  council.^  On  the  other 
hand,  the  governor  was  restive  under  restrictions  of  any  kind. 
For  example,  in  171 1,  Governor  Spotswood  of  Virginia  com- 
plained of  an  "unreasonable  "  proposal  of  the  assembly  to  make 
the  consent  of  the  council  necessary  in  appointments.'*  Again, 
in  1730,  Governor  Belcher  of  New  Hampshire  informed  his 
council  that  the  nomination  and  appointment  of  officers  be- 
longed to  him,  but  that  he  was  willing  to  listen  to  the  objec- 
tions of  the  council  and  to  give  them  due  consideration;^  and 
afterwards,  when  governor  of  New  Jersey,  he  took  similar 
ground.^  It  is  clear  that  the  more  specific  directions  of  1754 
were  needed. 

1  Instructions  to  Dobbs  of  North  Carolina,  1754,  §  62 ;  to  Bernard  of 
New  Jersey,  1758,  §41;  to  Dunraore  of  Virginia,  1771,  §  45.  The  pro- 
vision in  regard  to  removal  was  unchanged.  Cf.  Bernard's  instructions, 
§  42  ;  cf .  North  Carolina  Records,  v.  1 1 04. 

2  Hutchinson,  History  of  Massachusetts,  ii.  20;  Chalmers,  Revolt,  i. 
284. 

8  N'orth  Carolina  Records,  vi.  218,  762,  771. 

^  Letters  of  Governor  Spotswood  (Y'lrgimz.  Historical  Society,  Collections, 

i-).  53-54- 

s  jVew  Hatnpshire  Provincial  Papers,  iv.  Tj^. 

^  See  a  letter  from  John  Cox  to  James  Alexander,  May,  1748  :  "  We  had 
A  long  dispute  About  the  Power  of  the  Councill  he  was  in  Efect  for  Making 


THE   GOVERNOR'S  PATRONAGE.  1 13 

The  amount  of  patronage  thus  placed  in  the  governor's 
hands  varied  in  the  different  colonies.  In  Massachusetts 
many  of  the  important  oificers  were  appointed  by  the  General 
Court,  subject  in  this  as  in  all  other  matters  to  the  governor's 
approval;  and,  as  will  be  seen  later,  this  practice  had  its  in- 
fluence on  the  other  colonies. ^  In  Virginia  the  governor's 
patronage,  according  to  an  account  published  in  1727,  was 
very  extensive,  including  the  appointment  not  only  of  all  mili- 
tary ofjficers  by  commission  during  the  governor's  pleasure,  but 
of  nearly  all  civil  officers  of  importance.  ^  In  New  Hampshire, 
in  1730,  appointments  were  with  very  few  exceptions  in  the 
hands  of  the  governor.^  Anthony  Stokes,  the  writer  of  a 
valuable  work  on  the  colonial  constitution,  but  a  man  of  dis- 
tinctly royalist  tendencies,  laid  down  the  general  rule  that  the 
governor  had  the  disposal  of  all  ofBces  not  specifically  retained 
within  the  direct  control  of  the  crown,  and  even  that  vacancies 
arising  in  such  royal  appointments  were  temporarily  filled  by 
him.^  There  is,  however,  another  side  to  the  question.  In 
South  Carolina  the  patronage  of  the  governor  was  insigni- 
ficant, being  limited  chiefly  to  the  appointment  of  military 
officers  and  justices  of  the  peace,  "offices  of  no  profit,  and  some 
trouble."^  Such  limitations  were  due  partly  to  encroachments 
by  the  assembly  and  partly  to  the  tendency  of  the  home  gov- 
ernment to  keep  in  its  own  hands  some  of  the  more  important 
appointments.  In  addition  to  the  ofifices  connected  with  the 
customs  and  the  Indian  department,  the  crown  reserved  for 
its  own  appointment  the  offices  of  secretary  of  the  province, 

of  us  Solemn  Witnesses  to  his  Appointments  by  Consenting  to  Persons  he 
Should  Name  &  propose  And  I  insisted  On  what  I  concieved  to  be  our 
rights  —  Which  at  last  Ended  in  a  declaration  that  tho  his  Sentiments  were 
So  Yet  he  would  Not  appoint  officers  Without  Advice  of  Councill "  {New 
Jersey  Documents^  vii.  129.) 

^  See  below,  ch.  x. 

2  Hartwell,  Blair,  and  Chilton,  Present  State  of  Virginia,  20  seq. 

*  N'ew  Hampshire  Provincial  Papers,  iv.  533. 

*  Constit2itioJi  of  the  British  Colonies,  184. 

6  Glen,  Description  of  Sojith  Carolina,  in  Carroll,  Historical  Collectiotts, 
ii.  221. 

8 


114  THE   GOVERNOR'S  EXECUTIVE  POWERS. 

chief-justice,  attorney-general,    auditor-general,    receiver-gen- 
eral,  and  sometimes  that  of  clerk  of  the  assembly.^ 

In  reply  to  the  question  which  now  arises  as  to  the  way  in 
which  this  power  vested  in  the  governor  was  exercised,  it  must 
be  said  that  much  of  it  was  corruptly  used.  Maryland  furnishes 
a  glaring  example  of  a  regular  trafBc  in  offices,  though  for 
this  practice  the  proprietor  and  not  the  governor  was  chiefly 
to  blame. 2  In  South  Carolina  a  similar  corrupt  use  of  patron- 
age was  charged  against  one  of  the  acting  governors,  of  whom 
it  was  said  that  with  him  four  hundred  pounds  would  make  a 
provost  marshall.^  Some  governors,  apparently,  were  inclined 
to  provide  for  their  families  out  of  this  colonial  patronage, 
while  others  used  it  to  extend  their  influence  and  to  promote 
the  passage  of  measures  in  which  they  were  interested.*     An 

1  Glen,  Description  of  South  Carolina,  in  Carroll,  Historical  Collections, 
ii.  221  ;  Docuvientary  History  of  New  York  (1849),  i-  770-772  (Tryon's 
report  of  1774);  A-orih  Carolina  Records,  vi.  620  ;  New  fersey  Documents, 
vii.  246,  viii.  (2),  86,  ix.  257,  620.  In  Maryland,  proprietary  influence  in 
colonial  appointments  was  very  marked ;  in  one  instance  the  proprietor  even 
went  so  far  as  to  commission  a  justice  of  the  peace.  Furthermore,  even 
when  the  appointment  was  not  made  by  the  proprietor  directly,  the  governor 
was  tied  up  by  orders  to  appoint  particular  persons.  Governor  Sharpe  com- 
plained that  he  was  not  allowed  to  dispose  of  the  most  honorable  and  lucra- 
tive offices,  and  that  persons  who  desired  offices  would  apply  to  the  proprietor's 
secretary  {Maryland  Archives,^.  117,  vi.  184,  238,  400,  ix.  34-35)-  Stokes 
condemned  severely  the  common  practice  of  granting  commissions  in  England 
to  persons  who  exercised  colonial  offices  by  deputy,  saying  that  in  his  opinion 
the  governor  thus  lost  weight  {Constitution  of  the  British  Coloiiies,  138). 

2  This  traffic  was  largely  carried  on  by  Cecilius  Calvert,  secretary  to 
the  proprietor.  With  other  friends  of  the  proprietor,  he  was  accustomed 
to  levy  certain  charges  upon  persons  appointed  to  office  in  the  colony, 
requiring  the  judges  of  the  colonial  land  office,  for  example,  to  remit  to  him 
a  part  of  their  profits.  Sharpe  writes  an  interesting  letter  to  the  secretary 
about  the  case  of  a  certain  Mr.  and  Mrs.  Graham,  who  had  always  re- 
ceived fifty  pounds  per  annum  from  the  present  sheriff.  Another  relative 
asked  to  be  allowed  to  appoint  the  next  incumbent,  in  order  that  he  might 
continue  to  receive  the  fifty  pounds  a  year  assigned  by  the  proprietor; 
whereupon  the  governor  is  charged  with  the  ungracious  duty  of  making  the 
most  advantageous  bargains.  See  Sharpe's  Correspondence,  Maryland 
Archives,  vi.  238,  ix.  64. 

8  South  Carolina  Historical  Society,  Collectiotts,  i.  237. 

*  Governor  Dobbs  of  North  Carolina  successfully  recommended  his  son 


RESTRICTION  OF  THE  APPOINTING  POWER.       1 15 

illustration  of  this  latter  use  of  the  power  is  suggested  by  the 
complaint  of  an  eminent  contemporary  authority,  to  the  effect 
that  the  governor,  by  the  diminution  of  his  patronage,  was  left 
without  means  of  stopping  the  mouths  of  demagogues.^  Again, 
Governor  Dobbs  of  North  Carolina  revenged  himself  on  the 
leader  of  the  opposition  in  the  assembly  by  depriving  the 
gentleman  of  all  his  offices;^  and  Governor  Morris  of  New 
Jersey  appointed  to  a  judgeship  the  late  speaker  of  the  as- 
sembly, "who  had  been  as  serviceable  as  he  could. "^  This 
question  of  the  use  of  patronage  will  occur  again  when  the 
relation  of  the  governor  to  the  assembly  is  considered. 

It  was  inevitable  that  such  abuse  of  power  should  lead  to 
efforts  on  the  part  of  the  assembly  to  restrict  its  exercise. 
The  first  step  taken  was  the  imposition  of  certain  qualifications 
for  appointment,  a  provision  which  was  aimed  particularly  at 
the  practice  of  appointing  non-residents  to  colonial  ofifices. 
An  early  statute  of  New  Jersey  directed  that  none  but  resident 
freeholders  should  be  appointed  to  offices,  civil  or  military, 
within  the  province.*  A  similar  residential  qualification  for 
offices  in  the  colony  was  fixed  by  the  Maryland  assembly  in 
1704.^  In  1705  Virginia  passed  more  thoroughgoing  acts 
governing  the  appointment  of  sheriffs,  declaring  that  a  candi- 
date for  that  office  must  be  a  justice  of  the  peace,  and  that  he 
must  have  resided  in  the  province  at  least  three  years. ^  An- 
other illustration  of  popular  distrust  of  the  appointing  power  is 
to  be  found  in  the  fact  that  numerous  efforts  were  made  to 

for  appointment  to  the  council.  Governor  Cosby  of  New  Jersey  urged  the 
appointment  of  "my  son  Billy"  as  secretary  of  the  province,  a  post  to 
which  he  had  already  given  his  son  a  provisional  appointment  until  the 
royal  pleasure  should  be  known.  See  North  Carolma  Records,  v.  440,  649  ; 
N^ew  Jersey  Documents,  v.  321. 

^  Stokes,  Constitution  of  the  British  Colonies,  138. 

2  N^orth  Caroliria  Records,  vi.  218. 

8  Morris  Papers,  48. 

*  A  special  exception  was  made  of  the  office  of  secretar}'.  See  Learning 
and  Spicer,  Grants,  Concessions,  etc.,  368  seq.,  especially  370;  Allinson, 
Acts  of  Assembly,  1748,  ch.  208. 

^  Bacon,  Laws,  1704,  ch.  93. 

^  Hening,  Statutes,  iii.  246,  250. 


Il6  THE   GOVERNOR'S  EXECUTIVE  POWERS. 

regulate  the  tenure  of  certain  offices  in  the  gift  of  the  gover- 
nor. A  Maryland  act  of  1662,  for  example,  provided  for  the 
annual  appointment  of  sheriffs,  with  the  limitation  that  no 
person  should  fill  the  office  for  two  successive  terms;  and  later 
acts  of  the  same  province  fixed  a  tenure  first  of  two  and  then 
of  three  years. ^  Similar  acts  were  passed  in  North  Carolina, 
New  Jersey,   and  Delaware. ^ 

Occasionally  still  more  serious  limitations  were  laid  upon 
the  governor's  right  of  nomination.  A  Maryland  law  of  1662, 
for  example,  enacted  that  the  commissioners  of  the  county 
courts  should  annually  present  to  the  proprietor  or  the  governor 
the  names  of  three  persons  who  had  not  been  sheriffs  during 
the  previous  year,  from  which  the  governor  was  to  choose  one. 
The  act  was  temporary,  however,  and  the  restriction  was  aban- 
doned.^ Elsewhere  the  attempt  met  with  better  success.  A 
Virginia  act  of  1705  provided  that  the  county  courts  should 
annually  present  to  the  governor  the  names  of  three  persons 
as  candidates  for  the  office  of  sheriff,  one  of  whom  the  gov- 
ernor was  required  to  appoint.^  In  Pennsylvania  the  people 
had  from  the  beginning  a  similar  share  in  the  nomination  of 
sheriffs  and  coroners.^ 

The  assembly  had,  furthermore,  an  indirect  and  somewhat 
questionable  method  of  controlling  appointments  through  its 
power  over  the  purse.  Indeed,  it  was  a  common  practice  of 
the  colonial  assemblies  to  withhold  altogether  the  salaries  of 
judges  whose  appointment  they  disapproved.  In  New  York, 
salaries  were  granted  annually  and  specifically  by  name  to  the 
person  then  holding  the   office ;    the   governors   claimed,   and 

^  Maryland  Archives^  i.  450;  Bacon,  Laws,  1692,  ch.  25;  1715,  ch.  46, 
§  10. 

"-  Martin,  IredeWs  Public  Acts,  i.  42;  Laws  of  Delawa7'e  {ijcfj),  i.  63. 
C£.  also  Learning  and  Spicer,  Grants,  ConcessioJis,  etc.,  368  seg.j  Allinson, 
Acts  of  Assembly,  1748,  ch.  208. 

3  Majy land  Archives,  i.  451,  v.  138,  469. 

*  Hening,  Statutes,  iii.  246. 

5  See  Frames  of  Government  of  1682  and  1683,  in  Poore,  Charters  and 
Constitutions,  ii.  1522,  1529;  Charter  of  Privileges,  1701,  Ibid.,  1538; 
Statutes  at  Large  of  Pennsylvania  (1896),  ii.  272.  Cf.  Laws  of  Delaware 
(1797),  i-  63. 


FINANCIAL  POWERS.  WJ 

apparently  with  reason,  that  this  was  done  for  the  purpose  of 
controlling  appointments.^ 

Thus  in  almost  all  the  colonies  the  appointing  power  was 
subject  to  important  limitations  imposed  by  colonial  statutes. 
Not  content  with  these  checks,  however,  the  assemblies  entered 
upon  a  more  radical  course  of  action :  from  measures  restrict- 
ing the  exercise  of  the  appointing  power,  they  went  on  to 
wrest  from  the  governor  and  to  take  into  their  own  hands  the 
actual  power  of  appointment  itself.  This  policy  of  the  assem- 
blies, and  the  long  and  bitter  conflicts  to  which  it  gave  rise, 
may  best  be  studied  after  a  consideration  of  the  governor's 
relations  with  the  assembly.^ 

In  the  early  part  of  the  colonial  era  the  financial  powers  of 
the  governor  had,  as  has  been  seen,  been  very  extensive.  The 
introduction  of  representative  assemblies,  however,  gradually 
deprived  him  of  these  abnormal  powers,  rendering  him  de- 
pendent upon  the  assembly  for  supplies.  Naturally,  the  legis- 
latures of  those  days  were  not  inclined  to  grant  any  larger 
supplies  than  they  considered  strictly  necessary  for  the  support 
of  the  government ;  and,  furthermore,  the  body  which  granted 
money  began  to  claim  the  right  of  determining  how  that  money 
should  be  spent.  Hence  the  financial  powers  of  the  governor 
became  very  much  reduced.  There  were,  however,  two  impor- 
tant functions  of  this  class  which  continued  to  hold  their  place 
in  the  royal  commission  and  instructions,  namely,  the  regula- 
tion of  salaries  and  fees,  and  the  issue  of  warrants  for  the 
expenditure  of  money. 

The  royal  instructions  directed  the  governor,  with  the  advice 
and  consent  of  the  council,  to  regulate  all  salaries  and  fees  of 
provincial  officers.'^ 

Of  these  two  functions  the  regulation  of  salaries  may  first 
be  considered.  It  is  clear  that  when,  as  was  usually  the  case, 
official  salaries  were  paid  by  special  grants  of  the  assembly, 

^  New  York  Docutaefits,  v.  844,  vi.  432-437,  764. 

2  Cf.  ch.  X.  below. 

8  Instructions  to  Bernard  of  New  Jersey,  1758,  §  44 ;  to  Allen  of  New 
Hampshire,  1692,  p.  66;  to  Dudley  of  Massachusetts,  1702,  p.  loS;  to 
Dobbs  of  North  Carolina,  1754,  §65;  to  Dunmore  of  Virginia,  1771,  §  48. 


Il8  THE  GOVERNOR'S  EXECUTIVE  POWERS. 

their  amounts  must  of  necessity  have  been  determined  by  the 
same  authority.  In  Virginia,  however,  where  a  considerable 
portion  of  the  provincial  establishment  was  provided  for  by  a 
permanent  fund  settled  by  the  assembly  upon  the  crown,  not 
only  was  the  governor  directed  to  regulate  the  salaries  of 
officers,  but  he  had  the  power  to  do  so.^  In  New  York  there 
was  a  spirited  contest  over  the  question.  In  that  colony,  in 
the  early  part  of  the  last  century,  it  was  customary,  in  grant- 
ing supplies,  to  pass  at  the  same  time  resolutions  fixing  the 
salaries  of  the  various  officials.  Governor  William  Burnet, 
who  held  office  in  1720,  at  first  issued  his  warrants  in  accord- 
ance with  these  resolutions,  though  six  years  later  he  refused 
to  obey  the  resolves  of  the  assembly.  His  successor,  Mont- 
gomerie,  however,  seems  practically  to  have  yielded  the  point 
to  the  assembly,  which  by  1729  had  completely  gained  its 
end. 2  Salaries  were  thenceforth  regularly  fixed  by  annual  acts 
of  appropriation,  and  the  regulation  of  official  salaries  thus 
passed  entirely  out  of  the  governor's  hands. ^ 

The  question  as  to  the  regulation  of  fees  is  more  difficult. 
It  is  clear  that  the  governor's  prerogative  in  this  matter  was 
not  exclusive,  inasmuch  as  acts  of  assembly  for  the  regula- 
tion of  officers'  fees  begin  early  and  are  numerous.  In  Mary- 
land a  law  was  passed,  in  1676,  providing  that  no  officer 
mentioned  in  the  act  should  take  other  fees  than  those  speci- 
fied;* and  from  1699  to  1763  a  large  number  of  similar 
laws  are  recorded.  ^  Virginia  enacted  a  law  regulating  fees 
as  early  as  1699.^  Several  such  acts  were  passed  in  North 
Carolina;  indeed,  in  1736,  Governor  Johnston  himself  recom- 
mended  the  regulation  of  fees  by  the   legislature,  and  some 

1  Act  of  assembly,  in  Hening,  Statutes,  iii.  490,  especially  §  10;  instruc- 
tions to  Dunmore  of  Virginia,  1771,  §  88. 

2  New  York  Journal  of  Assembly,  i.  448,  5So>  585.  646,  700;  New  York 
Documents,  v.  878-879,  885. 

3  Opinion  of  Attorney-General  Bradley,  New  York  Documents,  v.  901- 

903- 

4  Maryland  Archives,  ii.  532.     For  earlier  acts,  see  Ibid.,  1.  21,  229. 

5  Bacon,  Laws,  1699,  ch.  49  ;  1700,  ch.  7;  I704>  chs.  4>  §6;  1708,  ch.  19; 
1709,  ch.  15;  1711,  ch.  19;  1714,  ch.  5  (for  four  years);  1763,  ch.  18,  §  87  seq. 

6  Hening,  Statutes,  iii.  195. 


REGULATION  OF  FEES.  II9 

years  later  a  law  was  finally  agreed  upon.^  Johnston's  succes- 
sor objected  to  this  measure  on  the  ground  that  it  was  incon- 
sistent with  that  article  of  the  instructions  which  authorized 
the  governor  to  regulate  fees;  but  the  Board  of  Trade  decided 
that  such  legislation  was  not  inconsistent  with  the  instruc- 
tions. ^  Without  adding  to  this  list  of  acts  passed  by  the 
assemblies  for  the  regulation  of  official  fees,  it  may  be  said 
that  the  practice  was  general. ^ 

It  is  equally  clear,  however,  that  fees  were  frequently  settled 
by  the  governor  and  council  without  the  intervention  of  the 
assembly.  In  some  of  the  colonies  there  were  no  acts  regulat- 
ing fees  until  a  very  late  date,  and  consequently  there  was 
room  for  action  by  the  governor,  who  seems  not  to  have  been 
slow  to  exercise  his  power.  New  Jersey,  for  example,  furnishes 
a  considerable  list  of  ordinances  issued  by  governors  for  the 
regulation  of  fees,  beginning  with  one  issued  by  the  first  royal 
governor  and  continuing  to  the  time  of  Governor  Belcher,  who 
assumed  the  office  in  1747.'*  Other  cases  may  be  found  in 
the  records  of  New  Hampshire,  New  York,  Maryland,  and 
Virginia.^  Popular  feeling,  however,  was  so  strongly  against 
the  practice  that  the  assembly  of  New  Jersey,  in  its  remon- 
strance against  Lord  Cornbury,  declared  that  it  considered  the 

1  North  Carolina  Records^  iv.  229,  916. 

2  Ibid.^  V.  643,  750. 

8  For  New  Jersey,  see  AUinson,  Acts  of  Asse?nl>ly,  1743,  ch.  195,  and 
1748,  ch.  210;  for  Georgia,  Jones,  Colonial  Acts  of  Georgia,  321  seq.  ;  for 
New  Hampshire,  Provincial  Laws,  chs.  64,  108;  for  South  Carolina, 
Cooper,  Statutes,  iii.  326,  414,  and  Chalmers,  Revolt,  ii.  175;  for  Massa- 
chusetts,/'r^'Z'/wr^  Laws,  iii.  1743-4  ch.  10,  1744-5  ch.  13,  1746-7  ch.  24, 
1750-51  ch.  8,  1752-3  ch.  28,  1756-7  ch.  30.  Cf.  Proud,  History  of  Peim- 
sylvania,  ii.  51. 

*  A^ew  fersey  Documents,  iii.  176,  v.  338,  xiv.  260,  388;  Allinson,  Acts  of 
Asseinbly,  Appendix. 

^  In  1642  the  governor  and  council  of  Maryland  published  a  table  of 
officers'  fees.  In  1669  the  council  expressly  declared  the  right  of  the  pro- 
prietor to  settle  fees;  and  in  16S2  a  similar  declaration  was  made  by  the 
proprietor  himself  on  the  failure  of  the  House  to  take  action.  See  Maryland 
Archives,  i.  162,  ii.  176,  vii.  401  ;  also  New  York  Acts  of  Assembly,  1691- 
1718,  pp.  1 15-123;  N^ew  Hampshire  Provincial  Papers,  \.  454;  Dinwiddle 
Papers  (Virginia),  i.  44-46;  N'orth  Carolina  Records,  vi.  288. 


120  THE  GOVERNORS  EXECUTIVE  POWERS. 

settling  of  fees  otherwise  than  by  a  legislative  act  to  be  a 
great  grievance  and  repugnant  to  Magna  Charta;  ^  and  a  similar 
position  was  taken  by  the  assemblies  of  several  other  colonies. ^ 

The  attitude  of  the  home  government  in  regard  to  the  ques- 
tion seems  not  to  have  been  consistent  throughout.  In  1708, 
after  the  remonstrance  of  the  New  Jersey  assembly  against 
the  conduct  of  Lord  Cornbury,  the  Board  of  Trade  declared 
its  opinion  *'  that  no  fee  is  lawful,  unless  it  be  Warranted  by 
Prescription,  or  Erected  by  the  Legislature"  ;^  but  it  is  doubt- 
ful just  how  much  is  meant  by  the  phrase  "warranted  by  pre- 
scription." In  the  next  year  the  act  of  assembly  regulating 
fees  was  disallowed,  and  the  new  governor,  Hunter,  was 
ordered,  with  the  advice  of  the  council,  to  establish  fees  "upon 
a  reasonable  footing."  This  he  did  by  ordinance.^  In  New 
Hampshire,  where  by  1730  officers'  fees  were  fixed  by  law,  the 
governor  was  directed  by  the  home  government  to  see  that  no 
fees  were  taken  in  the  province,  "but  what  are  according  to 
law."  ^  A  South  Carolina  law  regulating  fees  was  condemned 
by  the  home  government,  but  apparently  on  the  ground  that 
fees  were  unduly  reduced.^  In  1757,  the  Board  of  Trade  in- 
structed Governor  Dobbs  of  North  Carolina  that  acts  of 
assembly  regulating  fees  were  not  inconsistent  with  the  royal 
instructions,  but  recognized  also  a  concurrent  right  of  the 
governor  and  council.''^ 

Apart  from  the  question  of  strict  right,  it  may  then  be  said 
that,  although  the  royal  instructions  placed  in  the  governor's 
hands  the  regulation  of  official  fees,  the  function  came  to  be 
exercised  mainly  by  the  assemblies.     Some   governors,    it   is 

1  New  Jersey  Documents^  iii.  176. 

'  New  York  Documenis,  v.  296;  McMahon,  History  of  Maryland,  i. 
284  ;  Proud,  History  of  Pennsyivajiia,  ii.  51;  North  Carolina  Records,  iii. 
151,  vi.  288  ;  Dinwiddle  Papers,  i.  44-46. 

*  New  Jersey  Documents,  iii.  327.  *  Ibid.,  v.  338. 

5  New  Hampshire  Provincial  Papers,  iv.  573. 

8  South  Carolina  Historical  Society,  Collections,  iii.  332;  Chalmers, 
Revolt,  ii.  175. 

■^  AWth  Carolina  Records,  v.  750.  In  1754,  the  protest  of  the  Virginia 
burgesses  against  fees  not  sanctioned  by  law  was  rejected.  Dinwiddie 
Papers,  i.  44-47,  362. 


THE  DISPOSITION  OF  FUNDS.  121 

true,  still  used  their  right  to  a  limited  extent;  but  fees  were 
for  the  most  part  regulated  by  statutes  that  provided  penal- 
ties for  the  exaction  of  other  or  larger  amounts  than  those 
specified. 

The  other  important  financial  function  expressly  vested  in 
the  governor  by  his  instructions  was  the  general  oversight  of 
public  expenditures.  To  this  end,  it  was  ordered  that  all 
money  raised  should  be  expended  only  by  warrant  of  the  gov- 
ernor, with  the  advice  and  consent  of  the  council.  The  exer- 
cise of  this  power  was  checked  on  two  sides:  the  instructions 
provided,  in  the  first  place,  that  all  accounts  should  be  sent 
to  the  home  government;  and,  in  the  second  place,  that  the 
assembly  should  be  allowed  to  inspect  the  accounts  of  money 
appropriated  by  law.  The  latter  provision  was  probably  the 
more  effective  safeguard.^ 

The  real  extent  and  importance  of  this  power  conferred  on 
the  governor  can  be  determined  only  by  an  examination  of  the 
financial  methods  prevalent  in  the  different  colonies.  The 
important  question  is,  of  course,  whether  the  requirement  of 
the  governor's  warrant  was  merely  formal,  perhaps  designed  to 
check  expenditures  by  other  officers,  or  whether  it  was  meant 
that  the  governor  should  have  a  real  voice.  At  first,  before 
the  practice  of  making  minutely  exact  appropriations  became 
general,  the  governor  and  council  seem  actually  to  have  pos- 
sessed considerable  discretion  in  the  disposition  of  money.  2 
The  assembly  at  that  time  appears  hardly  to  have  realized  its 
power,  —  a  conclusion  suggested  by  the  fact  that  the  New 
Jersey  militia  act  of  1704  was  criticised  by  the  Board  of  Trade 
as  giving  the  governor  too  much  discretion  in  the  expenditure 
of  certain  funds  created  by  the  act.^     This  earlier  confidence 

1  See  instructions  to  Bernard  of  New  Jersey,  1758,  §§  19,  20;  to  Allen 
of  New  Hampshire,  1692,  p.  65  ;  to  Dudley  of  Massachusetts,  1702,  p.  105; 
to  Dobbs  of  North  Carolina,  1754,  §§  29,  30 ;  to  Dunmore  of  Virginia,  1771, 
§§  21,  22.  ' 

2  See  e.g.  Marylatid  Archives,  viii.  404;  Charter  and  Laws  of  Pennsyl- 
vania, 28 r  ;  New  Hampshire  Provincial  Papers,  ii.  84,  iii.  165  seq.  Note 
the  general  absence  of  detailed  appropriations  in  the  early  statute  books 
and  legislative  proceedings. 

8  New  Jersey  Doatmenis,  iii.  126. 


122  THE   GOVERNORS  EXECUTIVE  POWERS. 

in  the  judgment  and  integrity  of  governors  soon  passed  away, 
however,  as  it  became  evident  that  many  of  them  were  un- 
doubtedly corrupt.  In  evidence  of  the  lack  of  principle  among 
them,  reference  has  already  been  made  to  an  official  report  on 
the  condition  of  the  plantations.  Governor  Cornbury  of  New 
York  was  a  particularly  notorious  offender;  and  it  is  practi- 
cally certain  that  such  cases  as  his  had  much  to  do  with  the 
distinctly  different  policy  followed  by  the  assemblies  of  the 
eighteenth  century.  Indeed,  this  doubt  as  to  the  integrity  of 
the  executive  was  expressly  stated  in  the  official  proceedings  of 
the  legislature  of  New  York  as  a  reason  why  means  should  be 
taken  to  prevent  corrupt  expenditure.-^  The  natural  tendency 
of  all  legislative  bodies  to  define  appropriations  closely  prob- 
ably worked  to  the  same  end.  At  any  rate,  the  result  is  per- 
fectly clear :  a  glance  at  the  statute  books  of  almost  any  colony 
will  show  that,  by  the  close  of  the  colonial  era,  the  general 
rule  consisted  in  making  detailed  appropriations  for  short 
periods   of  time.^ 

In  the  making  of  these  appropriations  the  governor  had  a 
gradually  decreasing  influence.  He  had  himself  only  a  right 
of  veto  upon  appropriation  bills  as  a  whole;  but  the  council, 
as  the  upper  house  of  the  assembly,  afforded  to  a  certain 
extent  a  representation  of  the  policy  of  the  executive.  The 
lower  house,  however,  soon  came  to  resent  the  interference  of 
the  council  in  financial  matters,  and  a  jealousy  sprang  up,  of 
which  an  early  illustration  is  to  be  found  in  the  Virginia 
House  of  Burgesses.  This  body,  in  1666,  in  reply  to  the 
governor's  request  that  certain  members  of  the  council  should 
cooperate  with  the  burgesses  in  making  up  the  public  levy, 
asserted  its  right  to  "lay  the  levy  in  the  house,"  promising 
that  bills  should  then  be  presented  to  the  governor  for  his 
assent  or  dissent.^     In  1704  and  1705  the  New  York  council 

1  A^ew  Yo7'k  Journal  of  Assembly,  i.  1 70-1 71. 

"^  See  e.  g.  New  Hampshire  Provincial  Papers^  v.  393 ;  New  York 
Jourjial  of  Assembly,  i.  700,  784,  790-791,  ii.  9,  14;  New  York  Documefits, 
V.  901-903;  Cooper,  Stattites,  iv.  6,  14,  18,  45,  53,  103,  128;  Massachusetts 
Province  Latus,  passim,  e.  g.  1743-4  ch.  2,  1753-4  ch.  24. 

3  Hening,  Statutes,  ii.  254. 


MONEY  BILLS.  1 23 

returned  with  amendments  supply  bills  sent  up  by  the  House 
of  Representatives;  whereupon  the  House  resolved  that  it 
was  "  inconvenient "  to  allow  the  council  to  amend  money 
bills,  and  returned  the  bills,  having  paid  no  attention  to  the 
amendments.^  The  Board  of  Trade  vigorously  opposed  this 
action  of  the  assembly;  but  the  House  stood  firm.  In  171 1 
the  controversy  was  renewed  with  the  same  result.  Again  in 
1750  and  1754  the  House  refused  to  admit  amendments  by  the 
council,  and  finally  carried  its  point.  Thereafter  money  bills 
seem  to  have  been  passed  without  interference  from  the  council 
in  the  form  of  amendments. ^ 

In  spite  of  the  opposition  of  the  home  government,  which 
never  looked  favorably  upon  the  pretensions  of  the  assemblies, 
the  same  policy  was  followed  with  more  or  less  consistency  in 
the  other  colonies.^  When  the  question  was  raised  in  New 
Jersey  in  1740,  the  Board  of  Trade  declared  that  the  council 
had  an  undoubted  right  to  amend  money  bills;  but  such  oppo- 
sition from  a  distant  authority  could  hardly  effect  much  against 
a  local  representative  body  which  held  the  purse-strings  in  its 
hands,  and  consequently  the  New  Jersey  House  of  Repre- 
sentatives continued  to  deny  to  the  council  the  right  of  amend- 
ing money  bills.*  In  this  matter,  as  in  many  others,  the 
colonial  assemblies  showed  that  they  regarded  themselves 
as  inheritors  of  the  rights  and  privileges  of  the  House  of 
Commons. 

It  may  easily  be  seen  that  the  financial  functions  of  the 

^  New  York  Journal  of  Assembly,  i.  189-190,  201;  Chalmers,  Revolt, 
i.  358. 

2  New  York  Joiir^ial  of  Assembly,  i.  306  seq.,  ii.  289,  381  seq.,  and 
passim,  to  the  close  of  the  volume. 

2  Votes  and  Proceedings  of  the  Lower  House  of  the  Assetnbly  of  Mary- 
land, April  28,  1756,  May  9,  1758;  North  Carolina  Records,  vi.  909;  Pemi- 
sylvania  Records,  iii.  534,  vi.  40;  Votes  of  Pennsylvania,  iv.  516-522; 
Morris  Papers,  283;  New  Jersey  Documents,  v.  10.  The  Maryland  lower 
house,  on  April  28,  1756,  spoke  of  its  "ancient  and  undoubted  Rights,  in 
Case  of  all  Bills  for  Grant  of  Aids  or  Supplies,  to  direct,  limit,  and  appoint, 
in  such  Bills,  the  Ends,  Purposes,  Considerations,  .  .  .  and  Qualifications, 
of  such  Grants,  which  ought  not  to  be  changed  by  the  Upper  House " : 
Votes  and  Proceedings,  etc.,  as  above. 

*  Morris  Papers,  84;  New  Jersey  Docu7nents,  vii.  407,  viii.  28-31. 


124  THE  GOVERNORS  EXECUTIVE   POWERS. 

governor  were  widely  different  from  those  of  an  executive 
intrusted  with  the  preparation  of  the  budget.  He  might 
simply  recommend  in  general  terms  such  appropriations  as  he 
desired,  without  having  any  part  in  the  actual  work  of  legisla- 
tion. Indeed,  the  conditions  that  have  just  been  described 
generally  left  the  governor  and  council  in  the  position  of  a 
mere  accounting  board,  to  check  expenditures  made  in  accord- 
ance with  appropriations  of  the  legislature.^  Moreover,  not 
content  with  this  restriction  of  the  governor's  powers,  the 
assembly  went  on  to  more  radical  measures,  finally  placing 
the  actual  administration  of  the  finances  in  the  hands  of  its 
own  officers.  The  consideration  of  these  measures  will  be 
taken  up  in  connection  with  the  study  of  the  gradual  assump- 
tion of  executive  functions  by  the  assembly,  either  for  itself 
or  for  its  appointees. ^ 

Certain  minor  functions  intrusted  to  the  governor  may  now 
be  briefly  considered.  First  and  perhaps  most  important  of 
these  was  the  pardoning  power,  a  common  prerogative  of  the 
executive.  In  the  English  system  the  right  of  pardon  belonged 
to  the  king,  on  the  theory  that  criminal  offences  were  offences 
against  the  crown;  "for,"  says  Blackstone,  "it  is  reasonable 
that  he  only  who  is  injured  should  have  the  power  of  forgiv- 
ing."^    This  power,  within  certain  limits,  passed  naturally  to 

1  Even  this  right  was  sometimes  interfered  with,  or  at  least  not  clearly- 
recognized  (see  Neiv  Je?-sey  Documents,  xiv.  197;  Cooper,  Statutes.,  iii.  206 
^^^■1  333;  South  Carolina  Historical  Society,  Collections,  ii.  195).  Of  course 
the  mere  failure  to  mention  the  governor's  warrant  in  appropriation  bills  is 
hardly  conclusive  evidence  that  it  was  not  required  in  practice.  In  fact,  the 
statute  books  of  the  different  colonies  contain  frequent  references  to  the 
governor's  warrant  as  necessary  for  tlie  expenditure  of  public  money  {N^orth 
Carolina  Records,  v.  190;  New  Hampshi?'e  Provincial  Papers,  iii.  526-529; 
Hening,  Statutes,  iv.  26,  279;  Cooper,  Statutes,  iii.  529;  Allinson,  Acts  of 
Assembly,  chs.  397,  631).  There  were  some  cases  in  which  the  assembly, 
by  assuming  itself  the  right  to  pass  upon  claims  in  detail,  deprived  this 
function  of  the  governor  and  council  of  nearly  all  of  its  importance  (see  e.  g. 
South  Carolina  Historical  Society,  Collections,  ii.  195  ;  cf.  Cooper,  Statutes, 
iii.  206;  for  action  of  the  New  Hampshire  and  Massachusetts  assemblies, 
cf.  below,  p.  181. 

2  See  below,  ch.  x. 

^  Cofmnentaries,  i.  269. 


THE  PARDONING  POWER.  1 25 

the  governors,  who  represented  the  crown  in  the  colonies. 
The  proprietary  charters  of  Maryland  and  Pennsylvania  each 
conferred  the  right  of  pardon  upon  the  proprietor,  — the  Mary- 
land charter  for  all  offences  against  the  laws  of  the  province, 
the  Pennsylvania  charter  for  all  except  cases  of  treason  and 
wilful  murder.  1  The  royal  commissions  and  instructions  con- 
ferred the  power  upon  the  governor,  with  the  same  restrictions 
as  those  imposed  by  the  Pennsylvania  charter,  granting  him 
in  those  excepted  cases  the  right  of  reprieve  until  the  royal 
pleasure  should  be  made  known.  He  was  also  authorized  to 
remit  fines  and  forfeitures  not  exceeding  ten  pounds.  This 
right  of  pardon  was  granted  to  him  to  be  exercised  inde- 
pendently, without  reference  to  the  concurrent  action  of  the 
council.^ 

The  rule  just  stated  applies  to*  all  of  the  colonies,  with 
the  possible  exceptions  of  Pennsylvania  and  of  Maryland.  In 
Pennsylvania  the  governor  seems  to  have  asked  the  advice  of 
the  council  with  reference  to  pardons,  though  the  exact  ques- 
tion of  right  is  not  clear.  ^  The  first  recorded  Maryland  com- 
mission, that  to  Leonard  Calvert  in  1637,  gave  the  governor 
the  right  of  pardon  except  for  high  treason;*  the  commission 
to  Charles  Calvert  in  1666  gave  him  indefinitely  the  full 
powers  of  the  proprietor  under  the  charter ;  ^  during  the  period 
when  Maryland  was  a  royal  province,  the  pardoning  power  was 
granted  in  the  same  terms  as  in  the  other  provinces ;  ^  and  it 
seems  probable,  on  the  whole,  that  in  this  as  in  other  matters 
the  practice  of  the  royal  government  was  continued  after  the 
return  to  the  proprietary  constitution. 

The  general,  almost  universal  rule,  then,  was  that  the  gov- 

^  Charter  of  Maryland  in  Bozman,  History  of  Maryland,  ii.  9;  of  Penn- 
sylvania, in  Poore,  Charters  and  Constitutions,  ii.   1509. 

2  Commission  to  Bernard  of  New  Jersey,  1758,  §  17;  to  Allen  of  New 
Hampshire,  1692,  p.  60;  to  Dobbs  of  North  Carolina,  1761,  p.  528.  Cf. 
instructions  to  Bernard,  §  56;  to  Dobbs,  1754,  §  95 ;  to  Dunmore  of  Vir- 
ginia, 1771,  §  43- 

3  Pennsylvania  Records,  iii.  40-42,  no,  iv.  503. 
■*  Bozman,  History  of  Maryland,  ii.  Appendix. 
^  Maryland  Archives,  iii.  543. 

^  See  commission  to  Lionel  Copley,  1691,  p.  267;  instructions,  p.  275. 


126  THE  GOVERNOR'S  EXECUTIVE  POWERS. 

ernor  exercised  the  pardoning  power  except  in  cases  of  treason 
and  wilful  murder;  that  he  had  the  power  of  reprieve  in  those 
cases;  and,  finally,  that  his  action  was  independent,  not  re- 
quiring the  concurrence  of  the  governor  and  council. 

Other  minor  functions  of  the  governor  may  be  dismissed 
very  briefly.  The  governor  was  the  keeper  of  the  public  seal 
of  the  province,  required  in  the  more  important  state  pro- 
cesses.^ In  many  of  the  royal  provinces  he  was  authorized, 
with  the  advice  of  the  council,  to  grant  lands,  reserving  such 
quit-rents  as  seemed  to  him  reasonable.'^  An  extended  con- 
sideration of  this  latter  subject  would  bring  up  all  the  ques- 
tions of  land  administration  in  the  colonies,  and  is  hardly  in 
place  here.  It  may,  however,  be  noted  that  this  power  was 
especially  liable  to  abuse.  The  governors  of  New  York,  in 
particular,  were  charged  with  corrupt  management  of  the  royal 
lands,  on  the  ground  that  they  granted  them  away  for  low 
quit-rents  in  return  for  certain  arrangements  by  which  they 
were  to  receive  a  share  in  the  profits  of  the  transactions. ^ 

The  right  to  issue  charters  of  incorporation,  including 
charters  to  towns,  furnishes  another  interesting  illustration 
of  the  governor's  position  as  the  representative  of  the  crown. 
The  king  had  the  right  to  issue  charters  of  incorporation;^ 
hence  in  the  provincial  governments  the  governor  was  naturally 
invested  with  the  same  authority,  though  towns  and  other 
organizations   were   also    incorporated   by   act   of    assembly. ^ 

1  Hartwell,  Blair,  and  Chilton,  Present  State  of  Virginia,  20 ;  Stokes, 
Constitution  of  the  British  Colonies,  185;  commission  to  Bernard  of  New 

Jersey,  1758,  §  i3- 

2  Commission  to  Hunter  of  New  York,  1709,  p.  97  ;  to  Dobbs  of  North 
Carolina,  1761,  p.  531;  blank  commission  in  Stokes,  Constitution  of  the 
British  Colonies,  162.  Cf.  instructions  to  Dunmore  of  Virginia,  1771,  §  54; 
to  Dudley  of  Massachusetts,  1702,  p.  106. 

8  Lewis  Morris  to  the  Board  of  Trade,  1733,  New  Jersey  Documents, 
V.  353.     Cf.  Ibid.,  363. 

4  Blackstone,  Commentaries,  i.  273. 

6  See  charters  of  Maryland  and  Pennsylvania,  in  Bozman,  History  of 
Maryland,  ii.  16;  Poore,  Charters  and  Constitutions,  ii.  15 12.  For 
examples  of  charters  issued  by  the  governor,  see  North  Carolina  Records, 
iv.  43  ;  New  Hampshire  Provincial  Papers,  ii.  107,  722,  v.  90.  For  acts 
of   assembly,   see  New  Hampshire  Provincial  Papers,  iii.   620,  iv.  262 ; 


CENSORSHIP   OF  THE  PRESS.  12/ 

Another  prerogative  was  that  of  establishing  markets,  fairs, 
ports,  and  havens.  The  right  was  given  to  the  governor  by 
his  commission,^  and  there  are  some  illustrations  of  its  exer- 
cise by  the  governor  and  council ;  ^  but  here  again  the  assembly 
sometimes  interposed  its  action. ^ 

The  earlier  royal  governors  possessed  another  power,  which, 
if  not  always  effective,  at  least  involved  an  important  prin- 
ciple. The  royal  instructions  for  a  number  of  years  imme- 
diately before  and  immediately  after  the  beginning  of  the 
eighteenth  century  contained  clauses  authorizing  the  governor 
to  exercise  a  sort  of  censorship  of  the  press,  that  is,  providing 
that  no  press  was  to  be  set  up  and  no  book  or  other  matter 
printed  without  the  governor's  license.*  This  censorship  was 
for  some  time  actually  enforced  in  Massachusetts,  but  finally 
broke  down  during  the  administration  of  Governor  Shute.  In 
1719-1720  Shute  attempted  first  to  prevent  and  then  to  punish 
the  publication  of  an  attack  by  the  House  of  Representatives 
upon  the  surveyor  of  the  woods.  The  attorney-general  and 
the  council,  however,  declined  to  take  any  responsibility  in 
the  matter,  asserting  that  there  was  no  ground  on  which  to 
support  a  prosecution ;  whereupon  the  governor  complained  to 
the  Board  of  Trade,  which,  as  Chalmers  says,  "observed  the 
most  prudent  silence."^  In  1721,  Shute  recommended  a 
measure  to  punish  the  authors  of  factious  and  seditious  papers. 
The  House  refused  to  take  such  action,  however,  resolving 
that  "to  suffer  no  books  to  be  printed  without  license  from 
the  governor  will  be  attended  with  innumerable  inconveniences 
and  danger."^     "The  last  instance  of  an  attempt  to  enforce 

Hening,  Statutes,  iii.  94 ;  North  Carolina  Records,  v.  63.  Cf.  commissions 
to  Bernard  of  New  Jersey,  1758,  §  20  ;  to  Allen  of  New  Hampshire,  1692, 
p.  60;  to  Dobbs  of  North  Carolina,  1761,  p.  529. 

1  Commission  to  Bernard,  §  24;  to  Allen,  p.  61 ;  to  Dobbs,  p.  531. 

^  IMary land  Archives,  v.  31,  47,  92. 

8  Cooper,  Statutes,  iii.  214-217  ;  Hening,  Statutes,  iii.  54,  404,  428  ;  Bacon, 
Laws,  16S4  ch.  2,  1688  ch.  6;  Jones,  Colonial  Acts  of  Georgia,  57. 

*  See  instructions  to  Dongan  of  New  York,  1686,  p.  375  ;  to  Copley  of 
Maryland,  1691,  p.  279;  to  Allen  of  New  Hampshire,  1692,  p.  68;  to  Corn- 
bury  of  New  Jersey,  1702,  §  98. 

5  Chalmers,  Revolt,  ii.  12,  19,  20. 

^  Hutchinson,  History  of  Massachusetts,  ii.  223. 


128  THE   GOVERNORS  EXECUTIVE  POWERS. 

the  licensing  of  the  press  in  Massachusetts"  occurred  in  1723, 
and  the  prosecution  then  failed.  The  home  government  seems 
finally  to  have  given  up  the  obnoxious  provision,  omitting  it 
altogether  in  the  later  instructions.^ 

The  provincial  governor  represented  the  crown  also  in  cer- 
tain ecclesiastical  privileges  and  functions.  The  English 
king  was  the  head  and  governor  of  the  English  church,  though, 
as  Blackstone  says  with  some  naivete,  the  reasons  on  which 
this  prerogative  was  founded  were  reasons  rather  of  divinity 
than  of  law.  By  virtue  of  this  position  the  king  exercised  a 
certain  control  over  the  ecclesiastical  assemblies  of  the  realm; 
his  assent  was  necessary  to  the  validity  of  church  canons;  and 
he  had  the  right  of  nomination  to  bishoprics  and  some  other 
preferments.  He  was,  in  short,  the  ultimate  resort  in  all 
ecclesiastical   causes.^ 

The  subject  of  ecclesiastical  jurisdiction  in  the  colonies  is 
by  no  means  free  from  difficulties.  According  to  the  royal 
commission  issued  to  the  Bishop  of  London  in  1728,  the 
colonies  had  not  been  subject  to  any  ecclesiastical  juris- 
diction other  than  that  of  the  king  himself,  as  the  supreme 
governor  of  the  church  of  England.  ^  On  the  other  hand,  the 
royal  instructions  to  governors  of  New  York  in  1686  and  1690 
expressly  refer  to  the  ecclesiastical  jurisdiction  first  of  the 
Archbishop  of  Canterbury  and  then  of  the  Bishop  of  London. 
At  any  rate,  three  important  privileges  were  reserved  to  the 
governor  by  the  commission  and  instructions:  these  were  the 
rights  of  collation  to  benefices,  granting  marriage  licenses, 
and  probate  of  wills.*  The  royal  commission  to  Bishop  Gibson 
in  1728  gave  him  a  general  spiritual  jurisdiction  over  the 
colonial  churches,  and  authorized  him  to  appoint  commissaries 

1  See  C.  A.  Duniway,  The  Histoyy  of  Resh-ktions  vpon  Freedom  of  the 
Press  in  Massachusetts,  ch.  3.  (Unpublished  thesis  in  the  library  of 
Harvard  University). 

2  Blackstone,  Coimnentaries,  i.  278. 

8  New  York  Dociunents,  v.  849.  Cf.  the  letter  of  Bishop  Sherlock  in 
1759,  Ibid.,  vii.  360. 

4  See  commission  to  Dongan  of  New  York,  1686,  p.  379,  and  instruc- 
tions, §§  31-39;  instructions  to  Sloughter  of  New  York,  1690,  p.  688. 


ECCLESIASTICAL  POWERS.  I29 

in  the  colonies  to  act  in  his  name.^  The  right  of  collation  to 
benefices,  however,  remained  as  before  in  the  governor's  hands, 
together  with  the  granting  of  marriage  licenses  and  the  probate 
of  wills.2 

Besides  attending  to  these  specific  duties,  the  governor  was 
expected  to  exercise  a  general  oversight  of  the  church  in  the 
province.  He  was  required  to  see  that  "God  Almighty  be 
devoutly  and  duly  served"  throughout  his  government,  and 
that  the  liturgy  and  other  forms  of  the  church  of  England  were 
regularly  observed.*  He  was  in  general  to  support  the  Bishop 
of  London  in  the  exercise  of  his  spiritual  jurisdiction,  and  in 
particular  to  induct  no  ministers  who  were  not  duly  certified 
by  the  bishop.  When  ministers  proved  unfit  for  their  duties,  the 
governor  was  to  use  the  best  means  for  securing  their  removal.^ 

In  practice,  this  division  of  functions  between  the  governor 
on  the  one  side  and  the  Bishop  of  London  and  his  commis- 
saries on  the  other,  did  not  always  work  as  smoothly  as  might 
have  been  wished.  A  classic  illustration  is  the  case  of  Com- 
missary Blair  of  Virginia,  who  was  engaged  in  constant  alter- 
cations with  Governors  Andros  and  Nicholson  of  that  province, 
the  latter  of  whom  in  particular  was  charged  with  having 
seriously  encroached  upon  the  prerogative  of  the  Bishop  of 
London.'* 

The  whole  theory  of  the  ecclesiastical  authority  of  the  gov- 
ernor and  the  Bishop  of  London  was  greatly  disturbed  by  the 
action  of  the  colonists  themselves  through  their  assemblies. 
In  the  Puritan  colonies  of  New  England,  in  Pennsylvania, 
Delaware,  and  New  Jersey,  the  church  of  England  had  no 
legal  recognition  as  an  established  church."     In  New  York  a 

^  New  York  Documents.,  v.  849. 

2  See  e.g.  instructions  to  Morris  of  New  Jersey,  1738,  §  60;  to  Bernard 
of  New  Jersey,  1758,  §  64. 

8  See  instructions  to  Bernard  of  New  Jersey,  1758,  §§  59-67;  to  Dun- 
more  of  Virginia,  1771,  §§  66-75.  Cf.  those  to  Dongan  of  New  York,  1686, 
§§31-39- 

*  See  various  documents  in  Perry,  Papers  relating  to  the  History  of  the 
Church  in  Virginia,  32  seq.,  131  seq. 

^  For  New  Jersey  especially,  see  Allinson,  Acts  of  Assembly ;  New 
Jersey  Documents,  iv.    155,  161;  Burnaby,   Travels,   102. 

9 


130  THE  GOVERNOR'S  EXECUTIVE  POWERS. 

general  act  was  passed  for  the  establishment  of  six  Protestant 
ministers;  but,  though  it  contained  no  distinct  reference  to 
the  church  of  England,  yet  under  its  provisions  Episcopal 
churches  were  actually  supported  by  public  taxation.^  In  the 
Carolinas  the  church  of  England  was  in  theory  the  established 
church,  and  from  time  to  time  legal  provisions  were  made 
for  its  support.  This  support,  however,  was  very  uncertain, 
especially  in  North  Carolina,  and  there  was  often  no  security 
that  the  ministers  and  vestrymen  would  be  bond  fide  adherents 
to  the  established  order  of  the  church  of  England.^ 

Where  there  was  an  establishment,  the  governor's  preroga- 
tive suffered  through  various  statutory  provisions  enacted  in 
the  interest  of  the  vestries,  Virginia  acts  of  1642  and  1662 
gave  the  parishes  themselves  the  right  of  presentation,  and 
called  upon  the  governor  to  induct  ministers  so  presented.^ 
The  royal  attorney -general  ruled  that  this  right  of  presentation 
lapsed  after  six  months,  and  that  the  governor  then  had  the 
right  to  collate.^  As  a  matter  of  fact,  however,  ministers 
were  commonly  not  inducted  at  all,  but  were  engaged  from 
year  to  year  by  the  vestries,  upon  which  they  became  almost 
wholly  dependent.  Indeed,  the  neglect  of  Governor  Nicholson 
to  secure  proper  presentation  and  induction  of  clergymen 
formed  one  of  the  most  serious  charges  made  against  him  by 
Commissary  Blair. ^  In  1748  the  assembly  went  a  step  farther, 
by  passing  an  act  which  declared  expressly  that  the  vestries 
had  the  right  of  presentation  for  twelve  months  after  a  va- 
cancy had  occurred,  a  provision  which  the  Bishop  of  London 

1  Act  of  1693  in  Trott,  Ecclesiastical  Laws,  263.  Cf.  titles  of  acts  of 
1703  and  170s,  Ibid.,  276;  also  Perry,  History  of  the  American  Episcopal 
Church,  i.  ch.  ix.,  and  illustrative  notes,  p.  171. 

2  See  South  Carolina  act  of  1706,  in  Trott,  Ecclesiastical  Laws,  5  ;  Glen, 
Description  of  South  Carolina,  in  Carroll,  Historical  Collections,  ii.  222 ; 
Cooper,  Statutes,  ii.  366,  iii.  174,  iv.  266;  North  Carolina  act  of  I7I5>JJ^ 
Trott,  Ecclesiastical  Laws,  83 ;  North  Carolina  Records,  vi.  Preface,  xxix- 
xxxiii,  and  10,  714,  720;  vii.  150. 

3  Hening,  Statutes,  ii.  46. 

4  Opinion  of  Attorney-General  Northey,  1703,  in  ¥trry,  Papers  relating 
to  the  History  of  the  Church  in  Virginia,  127. 

5  Ibid.,  132. 


ECCLESIASTICAL  POWERS  LIMITED.  131 

interpreted  as  taking  awa}''  from  the  crown  the  patronage  of  all 
livings  and  giving  it  to  the  vestries.^ 

The  situation  in  the  Carolinas  was  less  satisfactory  than 
that  in  Virginia.  In  South  Carolina  the  church  act  of  1706 
provided  that  ministers  should  be  chosen  by  a  majority  of  the 
inhabitants  of  the  several  parishes  "that  are  of  the  Religion 
of  the  Church  of  England  "  ;  and  the  practice  of  election  seems 
to  have  been  continued  down  to  the  revolutionary  era.^  In 
North  Carolina  the  act  of  171 5  empowered  the  churchwardens 
and  vestry  to  procure  ministers ;  and  there  were  various  subse- 
quent acts,  which  were  disallowed  by  the  crown  because  of 
encroachments  upon  the  authority  of  the  governor.  Finally 
in  1765  an  act  was  passed  which  was  silent  as  to  the  right  of 
presentation,  leaving  it,  according  to  the  interpretation  of  the 
Bishop  of  London,  "  in  the  crown  to  be  exercised  by  the  Gov- 
ernor by  virtue  of  his  Patent  from  the  King.  "^ 

Nevertheless,  the  governor's  ecclesiastical  functions  were 
by  no  means  purely  nominal.  In  Maryland  the  church  estab- 
lishment act  of  1702  expressly  provided  for  the  maintenance  of 
ministers,  who  were  to  be  "presented,  inducted  or  appointed" 
by  the  governor;*  and  the  right  of  presentation  seems  to  have 
been  actually  exercised  later  by  the  proprietor  or  the  gover- 
nor.^ Furthermore,  in  North  Carolina  the  governor  and 
council  had  by  statute  the  right  to  suspend  ministers  for  im- 
proper conduct;  and,  in  Virginia  and  Maryland  at  least,  they 
acted  as  a  species  of  ecclesiastical  court. ^  It  may  fairly  be 
said  that,  although  the  authority  of  the  governor  almost  no- 
where in  practice  reached  the  standard  set  by  the  royal  com- 
mission and  instructions,  it  was  yet  possible  for  him  in  many 

1  Perry,  Papers  relating  to  the  History  of  the  Chttrch  of  Virgi?iia,  462; 
Hening,  Statutes,  vi.  90. 

2  Trott,  Ecclesiastical  Laws,  5;  Cooper,  Statutes,  ii.  366,  iii.  174,  iv.  266. 
8  Trott,  Ecclesiastical  Laws,  83 ;  A^orth  Carolina  Records,  vi.  Preface, 

xxix-xxxiii  and  10,  714,  720;  vii.  150. 

*  Bacon,  Laws,  1702,  ch.  i. 

6  Sharpe's  Correspondence,  Maryland  Archives,  vi.,  {x.,  passim,  espe- 
cially vi.  15.  ix.  369  and  index  under  "Livings." 

^  North  Carolina  Records,  vii.  150;  Hening,  Statutes,  iii.  289;  Din- 
widdle Papers,  ii.  695;  Bacon,  Za^i/j-,  1702,  ch.  i. 


132  THE   GOVERNOR'S  EXECUTIVE  POWERS. 

cases  to  exert  a  considerable  influence  for  better  or  for  worse 
upon  the  growth  of  the  church  within  his  province.^ 

In  addition  to  all  these  specific  powers  enumerated  in  the 
commission  and  instructions,  the  governor  was  authorized  to 
take  provisional  action  in  matters  not  covered  by  his  commis- 
sion, though  in  such  cases  the  consent  of  the  council  must 
always  be  had,  and  immediate  notice  must  be  given  to  the 
home  government.  He  was,  however,  specifically  forbidden  to 
declare  war,  except  against  the  Indians  in  emergencies. ^  This 
provisional  authority  seems  to  be  quite  inadequately  defined; 
but,  according  to  a  judicial  interpretation,  it  applied  only  to 
cases  in  regard  to  which  the  instructions,  as  well  as  the  com- 
mission, were  silent,  and  could  therefore  not  stand  against  any 
express  directions  of  the  instructions.^  It  was  simply  a  pro- 
vision for  unforeseen  contingencies,  guarded  from  possible 
abuse  by  the  requirement  of  immediate  notice  to  the  home 
government. 

^  In  Georgia  also  there  was  an  establishment,  and  the  governor  had  the 
right  of  collating  to  benefices  (Stokes,  Constitution  of  the  British  Colonies, 
120;  ]onts.  History  of  Georgia,]..  524,  act  of  1758).  Even  in  Massachu- 
setts, among  the  traditions  of  the  Puritan  commonwealth,  there  was  a  curi- 
ous illustration  of  one  aspect  of  the  king's  ecclesiastical  prerogative.  In 
1725  the  Congregational  ministers  of  Massachusetts  desired  to  hold  a  synod, 
and  presented  a  petition  to  the  governor,  council,  and  assembly  for  their 
sanction.  The  House  and  the  council  were  willing  to  grant  the  petition, 
but  action  was  postponed.  The  case  was  then  laid  before  the  home 
government,  which  held  that  the  application  to  the  General  Court,  instead 
of  to  the  governor  alone,  was  an  infringement  of  the  royal  prerogative,  inas- 
much as  the  king's  supremacy,  being  a  branch  of  the  prerogative,  was  ap- 
plicable in  the  colonies  as  well  as  at  home.  It  was  accordingly  decided 
that  it  was  not  lawful  for  synods  to  meet  in  Massachusetts  without  the 
royal  license  (Chalmers,  Opinions,  44-53,  and  Revolt,  ii.  31). 

2  See  instructions  to  Bernard  of  New  Jersey,  1758,  §  88;  to  Dudley  of 
Massachusetts,  1702,  p.  115;  to  Dobbs  of  North  Carolina,  1754,  §  129;  to 
Dunmore  of  Virginia,  1771,  §  87. 

3  Opinion  of  Chief-Justice  Morris  of  New  Jersey,  in  Chalmers,  Opinions, 
203. 


CHAPTER   VII. 

THE   GOVERNOR'S   RELATION  TO  THE  JUDICIARY. 

In  the  study  of  the  governor's  powers,  no  systematic  con- 
sideration has  hitherto  been  given  to  his  authority  and  duties 
in  connection  with  the  judicial  and  legislative  departments  of 
the  provincial  government.  The  question  as  to  the  relative 
importance  of  these  different  forces  in  the  constitutional  life 
of  the  province  is  of  the  highest  consequence  to  a  true  concep- 
tion of  the  governor's  actual  position.  Of  the  two  powers,  the 
judiciary  and  the  assembly,  the  latter  was  by  far  the  stronger, 
the  more  nearly  independent,  and  therefore  from  the  present 
point  of  view  the  more  important. 

The  governor  in  his  relation  to  the  judicial  system  of  the 
province  may  first  be  considered.  Here  again  the  analogy  of 
the  royal  prerogative  proves  useful.  In  the  English  constitu- 
tional tradition,  the  king  was  "the  fountain  of  justice  and 
general  conservator  of  the  peace  of  the  kingdom  " ;  hence  he 
had  the  right  to  erect  courts,  the  processes  of  which  ran  in  his 
name  and  were  executed  by  his  officers ;  he  was  moreover  the 
prosecutor  in  criminal  cases,  because  all  such  offences  were 
committed  "against  the  king's  peace,  or  his  crown  and  dig- 
nity." In  course  of  time,  however,  practice  had  seriously 
modified  this  traditional  theory.  The  king  had  originally 
possessed  judicial  power  in  himself;  but  gradually  the  actual 
administration  of  justice  had  passed  into  the  hands  of  courts, 
the  jurisdiction  of  which  could  not  be  changed  without  act  of 
Parliament,  and  the  independence  of  the  judges  had  come  to 
be  secured  by  commission  not  as  before  during  the  king's 
pleasure,  but  during  good  behavior.  ^  In  practice,  therefore, 
the  English  judiciary  had  gained  a  degree  of  independence  of 
the  crown  quite  inconsistent  with  the  ancient  tradition. 

*  Blackstone,  Commentaries,  i.  266-268. 


134  THE   GOVERNOR  AND    THE  JUDICIARY. 

In  the  commissions  of  the  royal  governors  is  found  an  inter- 
esting survival  of  the  old  theory.  The  governor,  for  example, 
was  empowered  by  his  commission  to  erect  courts  of  justice; 
as  has  been  already  seen,  he  also  had  the  appointment  of 
judicial  officers;  and,  finally,  he  formed  with  the  council  the 
highest  court  of  appeal  in  civil  cases.  At  first  these  powers, 
like  those  of  the  king,  were  much  more  extensive ;  but  the 
organization  of  inferior  courts  and  other  legislation  of  the 
assembly  soon  brought  them  within  narrower  limits.  Since 
the  question  as  to  the  appointment  of  judicial  officers  has 
already  been  considered  under  the  general  head  of  the  appoint- 
ing power,  it  will  be  enough  here  simply  to  state  the  general 
rule,  namely,  that  judges  and  justices  of  the  peace  were  ap- 
pointed by  the  governor  with  the  consent  of  the  council.^  The 
question  as  to  the  tenure  of  judicial  offices  deserves  somewhat 
more  particular  attention,  in  that  it  affected  the  relation  of 
the  governor  to  the  judiciary. 

It  is  obvious  that  a  system  of  appointments  during  good 
behavior  is  far  more  favorable  to  the  independence  of  the 
judiciary  than  appointment  during  pleasure.  The  early  in- 
structions were  not  clear  on  this  point,  directing  merely  that 
there  should  be  no  removals  without  just  cause,  which  was 
to  be  made  known  to  the  home  government,  and  that  there 
should  be  no  limitation  of  time  in  the  commissions  issued  to 
judicial  officers.  These  provisions  were  made,  as  the  instruc- 
tions declared,  in  order  to  prevent  arbitrary  removals,  though 
it  is  not  clear  how  this  result  was  to  be  produced  unless  offices 
were  to  be  held  during  good  behavior.^  Whatever  the  inten- 
tion may  have  been,  there  seems  to  have  been  no  uniform 
practice,  though  it  is  certain  that  in  many  of  the  colonies 
judges  were  appointed  to  serve  during  good  behavior,  and  that 
in  some  colonies  acts  were  passed  to  enforce  this  principle.  ^ 

1  See  above,  p.  in.  An  exception  must  be  made  in  the  case  of  the  pro- 
vincial chief-justice,  who  during  the  latter  part  of  the  colonial  era  was 
appointed  by  the  crown. 

2  Instructions  to  Dongan  of  New  York,  i686,  §  26;  to  Hunter  of  New 
York,  1709,  §  43;  to  Cornbury  of  New  Jersey,  1702,  §  41. 

2  See  additional  instruction  to  governors  of  Nova  Scotia,  New  Hamp- 


THE   TENURE   OF  JUDGES.  1 35 

The  home  government,  however,  stated  distinctly  its  dis- 
approval of  the  practice.  In  175 1  the  assembly  of  Jamaica 
passed  an  act  providing  that  all  judges  of  the  supreme  court 
should  hold  office  during  good  behavior,  and  the  act  was  referred 
to  the  law  officers  of  the  crown  for  their  opinion.  The  latter 
held  that  the  provision  seriously  affected  the  royal  prerogative, 
and  that  under  the  circumstances  it  was  not  "advisable,  either 
for  the  interest  of  the  plantations  themselves,  or  of  Great 
Britain,"  that  the  colonial  judges  should  hold  office  during 
good  behavior.  1  In  1754  the  instructions  to  Governor  Dobbs 
of  North  Carolina  contained  distinctly  the  requirement  that 
commissions  should  be  granted  during  pleasure  only.^ 

Nevertheless,  judicial  commissions  continued  to  be  given 
during  good  behavior,  and  acts  were  passed  in  Pennsylvania  in 
1759  and  in  North  Carolina  in  1760  definitely  prescribing  that 
form  of  tenure.  Earl}^  in  the  year  1761  the  New  York  assembly 
also  passed  a  bill  for  the  same  purpose,  but  it  was  defeated  by 
the  opposition  of  the  governor.  The  Pennsylvania  and  North 
Carolina  acts  were  disallowed  by  the  crown.  In  passing  upon 
the  New  York  case,  the  Board  of  Trade  insisted  on  the  en- 
forcement of  the  royal  instructions  on  this  point.  ^  The  result 
was  that  an  additional  instruction  was  issued  in  December, 
1 761,  reciting  the  previous  neglect  of  the  royal  orders,  and 
charging  the  governors,  on  pain  of  removal  from  their  posts, 
to  assent  to  no  acts  regulating  in  any  way  the  tenure  of  judi- 
cial officers,  and  to  issue  all  commissions  during  pleasure  only, 
"agreeable  to  what  has  been  the  Ancient  Practice  and  Usage 
in  our  said  Colonies  and  Plantations."* 

This  decision  of  the  home  government  was  still  strongly 
resisted.  The  assemblies  of  New  Jersey  and  New  York 
declared   their    intention    of   granting    no    salaries   to   judges 

shire,  New  York,  New  Jersey,  Virginia,  the  Carolinas,  Georgia,  etc.,  New 
Jersey  Docu?fients,  ix.  329.  Cf.  Ibid.,  vii.  651,  ix.  312,  346;  N'orth  Caro- 
lina Records,  vi.   255. 

^  Chalmers,  Opinions,  433.  2  g  53. 

*  New  Jersey  Docjunents.  ix.  312  seq.  j  Pennsylvania  Colonial  Records, 
viii.  543;  N^orth  Carolina  Records,  vi.  5S7  seq.j  New  York  Documents,  vii. 
462,  470,  484. 

*  Ne7v  Jersey  Documents,  ix.  329. 


136  THE   GOVERNOR  AND    THE  JUDICIARY. 

unless  the  commissions  were  during  good  behavior. ^  Never- 
theless, the  Board  of  Trade  determined  to  enforce  the  rule; 
and  accordingly  in  1762  Governor  Hardy  of  New  Jersey  was 
removed  for  disobedience  in  this  respect,  even  though,  before 
his  actual  removal,  he  had  reversed  his  former  action  and  had 
succeeded  in  getting  the  justices  to  accept  commissions  during 
pleasure. 2  By  the  year  1765  Lieutenant-Governor  Golden  was 
able  to  report  that  the  rule  was  enforced  in  New  York  also.^ 
The  popular  feeling  of  opposition  continued,  however,  and 
finally  found  expression  in  the  well-known  clause  of  the 
Declaration  of  Independence,  which  states,  as  one  of  the 
grievances  against  the  king,  the  fact  that  "he  has  made  judges 
dependent  on  his  will  alone  for  the  tenure  of  their  offices." 

The  arguments  by  which  the  home  government  justified  its 
action  deserve  some  attention.  In  answer  to  the  declaration 
of  the  people  of  New  York,  that  such  commissions  in  England 
were  granted  during  good  behavior  and  that  sound  policy 
required  the  same  action  in  the  colonies,  the  Board  of  Trade 
insisted  that  colonial  appointments  stood  on  an  entirely  dif- 
ferent footing,  saying  that  in  England  the  principle  of  tenure 
during  good  behavior  had  been  adopted  on  account  of  the 
arbitrary  action  of  the  crown  prior  to  the  revolution  of  1688, 
and  apparently  assuming  that  no  such  danger  existed  in  the 
colonies.  A  special  reason  assigned  for  making  appointments 
in  the  colonies  during  pleasure  only  was  that  there  the  mate- 
rial available  for  such  offices  was  of  poor  quality;  it  was 
believed  to  be  desirable  that,  when  a  man  of  superior  talents 
was  once  found,  the  .removal  of  inferior  men  who  stood  in  the 
way  of  his  appointment  should  be  as  easy  as  possible. 

Another  reason  assigned  for  the  adoption  of  a  different  rule 
in  the  colonies  was  that  by  the  general  practice  of  the  colonial 
assemblies  salary  grants  were  made  temporary,  whereas  in 
England  they  were  fixed  by  permanent  appropriations.  It 
was  claimed  that,  without  this  unlimited  right  of  removal, 
the   crown   or   its  representative   would   be  forced  to  see  the 

1  New  Jersey  Doaiments,  ix.  346;  New  York  Documents,  vii.  489. 

2  New  Jersey  Documents^  ix.  361,  364,  368. 

3  New  York  Doawients,  vii.  796-79?- 


THE  ERECTION  OF  COURTS.  117 

judiciary  become  completely  subservient  to  the  assembly;  the 
Board,  therefore,  condemned  the  rule  of  tenure  during  good 
behavior  as  destructive  of  the  interests  of  the  subject  and  as 
"tending  to  lessen  that  just  Dependance  which  the  Colonies 
ought  to  have  upon  the  Government  of  the  Mother  Country.  "^ 
It  may  fairly  be  assumed  that  in  this  last  clause  we  have  the 
real  secret  of  the  royal  opposition  to  the  permanence  of  judicial 
appointments. 

In  addition  to  this  means  of  influencing  the  judiciary,  the 
governor  was  assigned  by  his  commission  the  right,  with  the 
advice  and  consent  of  the  council,  to  erect  courts  of  justice, 
though  limited  in  the  exercise  of  this  power  by  his  instruc- 
tions, which  usually  forbade  him  to  erect  new  courts  without  a 
special  order  from  the  crown.  He  was  further  directed  to  see 
that  in  these  courts  justice  was  impartially  administered. ^ 
This  power  of  erecting  courts  was  the  subject  of  a  very  vigor- 
ous controversy.  The  practice  in  the  different  colonies,  and 
even  in  the  same  colony  at  different  times,  varied  so  much 
that  it  is  impossible  to  make  any  accurate  generalization;  but 
it  is  easy  to  find  numerous  instances  in  which  courts  were 
established  by  the  action  of  the  governor  and  council.  Thus, 
chancery  courts  were  in  most  cases  established  without  any 
legislative  process  ;3  and  in  New  Jersey  the  early  judicial 
system  was  based  mainly  upon  ordinances  of  the  governor  and 
council.*  There  are  instances,  too,  in  which,  in  the  absence 
of  any  legislation,  the  governor  was  expressly  directed  to  pro- 

1  Representation  of  the  Board  of  Trade,  New  Jersey  Documents,  ix. 
312  seq. 

2  Commission  to  Bernard  of  New  Jersey,  1758,  §  15;  to  Allen  of  New 
Hampshire,  1692,  p.  59;  to  Dobbs  of  North  Carolina,  1761,  p.  528.  In- 
structions to  Bernard,  §§  33,  34;  to  Allen,  p.  66;  to  Dunmore  of  Virginia, 

1771,  §§  38.  39- 

3  New   York  Documents,  iv.  914,  929;  Pennsylvania  Records,  iii.    105. 

See  also  the  opinion  of  Attorney-General  Northey,  in  1704,  to  the  effect  that 
the  queen  could  by  her  prerogative  erect  a  court  of  equity  in  Massachusetts, 
and  that  the  General  Court  could  not  do  so  according  to  the  terms  of  the 
charter :  Chalmers,  Opinions,  195. 

*  Field,  Provincial  Courts  of  New  Jersey,  App.  C,  D  (ordinances  estab- 
lishing courts).     Later  ordinances  run  in  the  king's  name  {Ibid.,  App.  E,  F). 


138  THE  GOVERNOR  AND   THE  JUDICIARY. 

vide  for  the  necessary  courts.  This  was  the  case  in  North 
Carolina,  where  in  1754  the  instructions  to  Governor  Dobbs, 
after  declaring  the  repeal  of  the  judiciary  act  of  1746,  provided 
for  deficiencies  by  directing  the  governor  with  his  council  to 
establish  courts  of  justice.  In  Pennsylvania  similar  action 
was  taken  in  1707.^ 

On  the  other  hand,  acts  of  assembly  were  constantly  passed, 
erecting  courts  and  defining  their  jurisdictions;  in  fact,  it  may 
be  said  that,  as  a  rule,  courts  were  established  and  organized 
by  such  acts,  and  not  by  ordinances  of  the  governor  and 
council.^  Yet  this  circumstance  did  not  necessarily  imply  a 
denial  of  the  legality  of  the  latter  method.  For  example,  in 
1705  Virginia  passed  an  act  establishing  the  General  Court  of 
that  province,  and  declaring  also  that  the  courts  therein  named 
should  be  the  only  courts  of  record  in  the  province;  in  order 
to  avoid  misunderstanding,  however,  an  explanatory  act  ex- 
pressly recognized  the  right  of  the  crown  to  erect  courts.^ 

Nevertheless,  it  must  be  said  that  there  was  also  very  general 
opposition  to  the  exercise  of  this  power  by  the  governor,  a  very 
widespread  feeling  that  such  action  was  illegal.  In  Pennsyl- 
vania, where  ordinances  of  this  sort  were  several  times  passed, 
the  assembly  denied  the  governor's  right  to  take  such  action.* 
In  South  Carolina  also,  the  court  of  exchequer  erected  by  Gov- 
ernor Nicholson  was  regarded  as  exercising  an  illegal  juris- 
diction;^ and  the  New  York  assembly,  in  1727,  condemned 
the  action  of  the  governor  in  erecting  a  court  of  chancery  with- 
out the  consent  of  the  assembly.^     In  short,  so  good  an  author- 

1  Instructions  to  Dobbs  of  North   Carolina,   1754,  §  41;   Charter  and 
Laws  of  Pennsyhiania,  319. 

2  AWth  Carolina  Records,  iv.  337;  Martin,  IredeWs  Public  Acts,  i.  40, 
74,  112,  117;  Cooper,  Statutes  of  South  Carolina,  iii.  179,  vii.  163  seq.; 
New  Ha})ipshire  Provincial  Papers,  iii.  183,  218;  Acts  and  Laws  of  New 
Hampshire  (1771),  ch.  4;  Charter  and  Laws  of  Pennsylvania,  395  seq.; 
Allinson,  New  Jersey  Acts  of  Assembly,  chs.  172,  193;  Hening,  Statutes  of 
Virginia,  iii.  95-96,  287,  489. 

3  Hening,  Statutes,  iii.  489. 

*  Votes  of  Pennsylvania,  i.  pt.  ii.  158. 
s  Chalmers,  Revolt,  ii.  166. 

*  Smith,  History  of  New  York,  229-230. 


GOVERNOR'S  AUTHORITY  DISPUTED.  1 39 

ity  as  Thomas  Pownall  declares  that  the  right  of  the  governor 
to  erect  courts  was  "universally  disputed. "  ^  The  home  gov- 
ernment, too,  seems  to  have  recognized  the  propriety  of  action 
by  the  assembly;  for  the  instructions  to  Governor  Lovelace 
of  New  Jersey,  in  1708,  contained  a  clause  directing  him  to 
recommend  to  the  assembly  the  passage  of  an  act  creating  a 
court  for  the  trial  of  small  causes.  ^  It  appears  therefore  that, 
although  the  governor  was  authorized  by  his  commission  to 
erect  courts  with  the  consent  of  the  council,  he  was  by  his 
instructions  restricted  in  the  exercise  of  this  power;  that 
courts  were  regularly  established  and  organized  by  acts  of 
assembly ;  and  that  the  right  of  the  governor  to  erect  courts  by 
ordinance  was  very  generally  disputed. 

A  third  method  by  which  the  governor  made  his  influence 
felt  upon  the  provincial  judiciary  was  a  necessary  consequence 
of  his  position  as  chief  executive.  As  such  it  was  his  duty 
to  see  that  the  laws  were  duly  enforced ;  with  him,  or  with 
agents  appointed  by  him,  lay  the  enforcement  of  judicial 
decisions;  and  with  him  also  rested  in  part  the  duty  of  pros- 
ecution. The  attorney-general  of  the  province,  though  not 
always  appointed  by  the  governor,  was  subject  to  his  orders; 
and  prosecutions  might  be  ordered  by  the  governor  and  council, 
or,  when  once  begun,  might  be  suspended  by  their  order. ^  It 
is  clear  that  in  these  various  ways  the  governor  had  an  impor- 
tant influence  for  good  or  evil  upon  the  administration  of 
justice. 

Hitherto  attention  has  been  given  only  to  the  action  of  the 
governor  upon  the  judiciary  power  from  without,  through  his 
influence  in  the  constitution  of  the  courts  and  in  the  enforce- 
ment of  judicial  decisions,  — powers  which,  with  the  excep- 
tion of  the  right  to  erect  courts,  are  normal  functions  of  the 
executive.     The  governor  was  more  than  an  executive  officer, 

^  Administratio7t  of  the  Colonies,  75  seq. 

2  Instructions,  §  53,  New  Jersey  Documents,  iii.  322.  Cf.  instructions  to 
Bernard,  1758,  §  33. 

'  See  Neiu  Jersey  Doaiments,  ix.  482,  xiv.  486;  Allinson,  Acts  of 
Assembly,  ch.  23  ;  Bacon,  Laws  of  Maryland,  1715  ch.  48,  1722  ch.  5. 


140  THE  GOVERNOR  AND   THE  JUDICIARY. 

however:  he  was  himself  a  part  of  the  judicial  system.  In 
the  early  days  of  the  colonies  there  was,  as  has  been  seen, 
very  little  scientific  definition  of  powers;  the  administration 
of  justice  was  then  in  some  cases  almost  entirely  in  the  hands 
of  the  governor  and  council.  As  time  went  on,  the  organiza- 
tion of  courts,  by  acts  of  assembly  or  otherwise,  naturally 
brought  the  governor's  activity  within  much  narrower  limits; 
but  in  nearly  all  the  colonies  something  of  his  old  judicial 
power  survived. 

The  governor's  criminal  jurisdiction  seems  for  the  most 
part  to  have  passed  away;  but  in  Virginia  the  governor  and 
council,  under  the  name  of  the  "General  Court,"  continued 
to  be  the  highest  court  in  all  cases,  criminal  as  well  as 
civil.  1 

The  most  important  judicial  function  of  the  governor  and 
council  was  the  hearing  of  appeals  in  civil  cases  in  which  the 
value  in  question  exceeded  a  certain  fixed  sum.^  This  amount 
varied  in  different  provinces :  in  the  instructions  to  Lord 
Cornbury,  in  1702,  the  right  of  appeal  to  the  governor  and 
council  was  limited  to  cases  involving  more  than  one  hundred 
pounds  sterling; 3  a  Maryland  statute  of  171 3  directed  that 
appeals  should  lie  from  the  provincial  court  to  the  governor 
and  council  only  in  cases  involving  more  than  fifty  pounds;^ 
an  additional  instruction  of  1753  raised  the  minimum  value 
for  which  a  suit  might  be  carried  to  the  governor  and  council 
to  three  hundred  pounds.  ^  In  order  to  guard  against  abuses,  a 
further  right  of  appeal  to  the  Privy  Council  was  instituted  by 
which  appeals  were  allowed  in  cases  involving  from  two  hundred 
to  five  hundred  pounds.     Appeal  to  the  home  government  was 


1  Hening,  Statutes,  ii.  532  (charter  of  1676),  iii.  287,  489;  Hartwell, 
Blair,  and  Chilton,  Present  State  of  Virginia,  20. 

2  See  instructions  to  Bernard  of  New  Jersey,  1758,  §§  39,  40;  to  Allen 
of  New  Hampshire,  1692,  p.  68;  to  Dobbs  of  North  Carolina,  1761,  §§  60, 
61  ;  to  Dunmore  of  Virginia,  1771,  §§  41,  42.  Exception  must  be  made  of 
the  colonies  of  Massachusetts,  Pennsylvania,  and  Delaware.  Cf.  Laws  of 
Delaware  (1797),  i-  374;  Proud,  History  of  Pennsylvania,  ii.  286. 

8  §  85.  ■*  Bacon,  Laws,  171^,  ch.  4. 

6  New  Jersey  Documents,  viii.  (i)  1S8. 


THE  GOVERNORS  JUDICIAL  POWERS.  141 

thus  ordinarily  possible  only  when  very  considerable  sums  of 
money  were  involved.  ^  There  were  also  several  other  condi- 
tions tending  to  discourage  the  reference  of  suits  to  the  crown, 
one  of  which  was  the  requirement  that  the  appellant  should 
give  notice  of  appeal  within  fourteen  days  and  furnish  bonds 
to  answer  the  charges  in  case  the  sentence  should  be  con- 
firmed; and  still  another  lay  in  the  fact  that  the  process  of 
appeal  to  a  distant  tribunal  necessarily  involved  great  incon- 
venience and  expense.  The  result  was  that  the  governor  and 
council  were  inadequately  checked  in  the  exercise  of  their 
judicial  functions.^ 

The  governor  was  furthermore  the  keeper  of  the  province 
seal,  and  as  such  was,  in  theory  at  least,  chancellor  with  juris- 
diction in  equity  cases,  for  the  trial  of  which  courts  were  set 
up  in  nearly  all  the  colonies.  In  some  provinces  the  governor 
himself  constituted  the  chancery  court;  in  others  the  governor 
and  council  were  judges,  each  with  an  equal  vote  in  the  deci- 
sion of  the  court. 3  That  this  equity  jurisdiction  of  the  governor 
was  generally  distrusted  is  plainly  seen  in  the  popular  view  of 
the  matter  as  given  by  Douglass  in  his  "  Summary  " :  "  It  is 
said  that  a  Governor  and  such  of  the  Council  as  he  thinks 
proper  to  consult  with,  dispense  with  such  Provincial  Laws  as 
are  troublesome  or  stand  in  their  Way  in  Procedures  of  their 

1  Instructions  to  Bernard,  §§  39,  40;  to  Cornbury,  §§  85,  86.  It  should 
be  said,  however,  that  in  answer  to  petitions  in  special  cases  the  crown 
might  and  did  allow  appeals  involving  smaller  amounts.  See  opinion  of 
Attorney-General  Northey,  in  Chalmers,  Opinions,  490. 

2  Cf.  Hartwell,  Blair,  and  Chilton,  Present  State  of  Virginia,  26,  46. 

8  New  Hampshire  Provincial  Papers,  iii.  186;  Massachusetts  Province 
Laws  (i.),  1692-3  ch.  33,  §  14,  1693-4  ch.  12;  Pownall,  Administration  of 
the  Colonies,  80;  Pennsylvania  Records,  iii.  105;  Hartwell,  Blair,  and 
Chilton,  Present  State  of  Virginia,  20;  Hening,  Statutes  of  Virginia,  iii. 
291;  Bacon,  Laws  of  Maryland,  1721,  ch.  14;  Cooper,  Statutes  of  South 
Carolina,  vii.  163,  191  ;  North  Carolina  Records,  iii.  123,  150;  Field,  Pro- 
vincial Courts  of  New  Jersey,  11 3-1 14;  New  Jersey  Doctwients,  xiii.  553, 
xiv.  521;  ordinance  of  1753,  in  Allinson,  Acts  of  Assembly,  Appendix; 
History  of  the  British  Dominions  in  North  Avm-ica,  ii.  120;  Douglass, 
Siwimary  of  the  First  Platiting  of  the  British  Seftlemejits  in  North 
America,  ii.  256-257.  The  governor's  chancery  court  in  Massachusetts 
seems  to  have  been  abandoned  (cf.  Douglass,  as  above). 


142  THE   GOVERNOR  AND   THE  JUDICIARY. 

Court  of  Equity,  so-called.  "^  This  popular  distrust  of  the 
chancery  court  without  doubt  impaired  its  efficiency  in  no 
small  degree.  In  Pennsylvania  it  met  with  serious  opposition 
from  the  assembly,  which  soon  refused  to  recognize  its  author- 
ity. ^  In  New  York  the  governor's  equity  jurisdiction,  though 
denounced  by  the  assembly,  was  able  to  maintain  a  somewhat 
precarious  existence;  but  it  was  held  in  contempt  and  was 
generally  avoided,  as  indeed,  according  to  Governor  Pownall, 
seems  to  have  been  the  case  in  other  colonies  in  which  such 
courts  had  been  established.^ 

Other  judicial  powers  of  the  governor  may  be  considered 
very  briefly.  As  a  part  of  his  ecclesiastical  jurisdiction,  he 
had  the  probate  of  wills  and  the  issue  of  marriage  licenses;* 
either  alone  or  with  the  council  he  usually  acted  as  a  court  of 
probate;^  in  Massachusetts  and  New  Hampshire  at  least  the 
governor  and  council  constituted  a  court  for  the  decision  of 
questions  of  marriage  and  divorce.^  The  governor  was  also 
named  in  the  royal  commission  for  the  trial  of  piracy  cases, 
which  usually  included  the  governors  of  a  few  adjacent  colonies, 
with  some  other  officers  of  the  colonial  service.'^ 

Thus  the  governor,  besides  having  an  indirect  influence  upon 
the   administration   of   justice   through   his   control  over  the 

1  II.  33. 49-  ,       ,  ,     r 

2  Pennsylvania  Records,  iii.  617,  iv.  38-46.  Note  the  absence  of  refer- 
ence to  the  chancery  court  in  Proud's  account  of  the  courts,  History  of 

Pennsylva?tia,  ii.  86. 

3  Smith,  History  of  New   York,  230;  Pownall,  Adrninistration  of  the 

Colonies,  81. 

4  See  instructions  to  Bernard  of  New  Jersey,  1758,  §  64;  to  Dobbs  of 
North  Carolina,  1754,  §  105  ;  to  Dunmore  of  Virginia,  1771,  §  72. 

5  Hening,  Statutes  of  Virginia,  iv.  16;  Bacon,  Laws  of  Maryland,  171 5, 
ch.  39,  §  27;  South  Carolina  Historical  Society,  Collections,  ii.  286;  Massa- 
chusetts charter  of  1691,  in  Poore,  Charters  and  Constitutions,  i.  942; 
Massachtisetts  Province  Laws  (i.),  1692-3,  chs.  14,  46;  New  Hampshire 
Prcvincial  Papers,  ii.  500;  Laws  of  Delaware  (i797))  '•  92»  ^"^^  ^f.  427. 

6  Massachusetts  Province  Laws  (\.),  1692-3,  ch.  25;  New  Ha?npshire 
Provincial  Papers,  ii.  249,  iii.  277. 

7  Stokes,  Constitution  of  the  British  Colonies,  231-232  ;  instructions  to 
Bernard  of  New  Jersey,  1758,  §  80,  and  to  Dunmore  of  Virginia,  1771,  §  64 ; 
New  Jersey  Documents,  ix.  282. 


DEPENDENCE   OF  THE  JUDICIARY.  I43 

organization  of  the  courts  and  the  machinery  of  enforcement, 
was  himself  a  part  of  the  judicial  system,  in  one  important 
class  of  cases  forming  with  the  council  the  highest  court  of 
appeal  within  the  province.  It  is  clear  that  under  such  a 
system  the  independence  of  the  judiciary  must  have  been 
seriously  impaired;  indeed,  so  conservative  a  writer  as  Hutch- 
inson speaks  of  the  judges  during  one  administration  as 
distinctly  dependent  upon  the  governor,^  referring  speci- 
fically in  this  case  to  Belcher's  frequent  removals  of  judi- 
cial officers. 

Furthermore,  numerous  cases  might  be  cited  of  gross  abuse 
by  the  governor  of  his  influence  upon  the  administration  of 
justice.  A  classic  illustration  of  such  abuse  is  seen  in  the 
judicial  murders  of  Berkeley's  time;  and  another  striking 
example  of  the  same  improper  influence  appears  in  the  case  of 
Nicholas  Bayard  of  New  York,  who  was  tried  and  convicted  of 
high  treason  by  a  packed  court  and  jury,  and  sentenced  to  be 
hung  and  quartered,  merely  because  he  had  made  certain  inju- 
dicious criticisms  of  the  provincial  administration. ^  Again, 
there  is  a  case  in  which  a  governor  grossly  abused  his  power 
over  the  Supreme  Court  in  order  to  gain  his  personal  ends. 
Governor  Cosby  of  New  York  had  ordered  a  suit  before  the 
Supreme  Court  in  a  case  involving  the  payment  of  his  salary. 
The  court  ruled  that  this  was  a  case  in  equity  of  which  it 
could  not  take  cognizance;  whereupon  the  governor  sent  an 
abusive  message  to  Chief-Justice  Morris,  declaring  him  unfit 
for  his  position,  and  shortly  appointed  in  his  place  one  of  the 
judges  who  had  given  an  opinion  favorable  to  himself.  Cosby 
declared  that  the  removal  of  Morris  was  necessary  in  order  to 
discourage  the  advocates  of  "Boston  principles,"  which  was 
a  general  term  for  opposition  tendencies.  In  the  famous 
Zenger  case,  Cosby  used  all  his  influence  to  bring  about  the 
conviction  for  libel  of  the  man  who  published  Morris's  criti- 

1  History  of  Massachusetts^  ii.  336-337,  notes. 

2  Howell,  State  Trials,  xiv.  471  ;  New  York  Documents,  iv.  945-974 
passim,  1023. 


144  THE  GOVERNOR  AND   THE  JUDICIARY. 

cism  of  the  governor's  action;  and  he  was  defeated  only  by  the 
bold  appeal  of  Zenger's  counsel  to  the  jury.^ 

Clearly,  a  judiciary  so  constituted  and  so  controlled  could 
hardly  have  exercised  any  effective  check  upon  the  governor; 
and  furthermore  the  process  of  appeal  to  the  home  government 
was  so  difficult  as  to  be  worth  little  as  a  restraint  upon  his 
action. 

1  See  New  Jersey  Docwnettts,  v.  327,  340,  343,  356;  also  report  of  the 
case  in  Howell,  State  Trials,  xvii.  GjS  \  ■^^'^  York  Documetits,  vi.  4. 


CHAPTER   VIII. 

THE    GOVERNOR'S   POWER   OVER   THE   ASSEMBLY. 

Attention  may  now  be  turned  to  the  governor's  relation  to  a 
body  which  had  a  far  more  important  influence  in  the  constitu- 
tional history  of  the  colonies,  namely,  the  General  Assembly, 
or  General  Court,  as  it  was  variously  called. 

A  word  must  first  be  said  as  to  the  constitution  of  the  assem- 
bly. In  all  the  royal  and  proprietary  governments,  except 
Pennsylvania,  it  consisted  of  two  houses,  —  the  council  ap- 
pointed on  the  governor's  recommendation,  and  a  lower  repre- 
sentative house.  In  Pennsylvania,  as  has  already  been  seen, 
the  councillors  were  excluded  from  direct  participation  in 
legislation,  though  the  governor  was  required  to  take  their 
advice.  This  requirement  was  very  unpopular  with  the 
assembly,  which  naturally  felt  that  in  this  way  the  council 
became  practically  an  upper  house. 

The  governor,  by  his  commission,  had  other  important 
powers  in  the  constitution  of  the  assembly.  In  the  first 
place,  the  calling  of  the  assembly  was  left  in  his  hands, 
subject,  however,  to  the  advice  and  consent  of  the  council: 
no  assembly  could  even  come  into  existence  without  his 
action.^  This  power  was  limited  in  two  ways,  however,  first 
by  specific  requirements  of  charter  or  statute,  and  secondly 
by  the  practical  necessity  of  calling  assemblies  in  order  to 
get  supplies.  In  two  colonies,  Pennsylvania  [Delaware]  and 
Massachusetts,  the  charters,  though  giving  to  the  governor  the 
right  of  summons,  required  annual  elections  and  sessions  at 

^  Commission  to  Bernard  of  New  Jersey,  1758,  §  7;  to  Allen  of  New 
Hampshire,  1692,  p.  58;  to  Dobbs  of  North  Carolina,  1761,  p.  526. 

10 


146    THE  GOVERNOR'S  POWER  OVER  THE  ASSEMBLY. 

fixed  dates.  ^  In  a  few  other  colonies  there  were  triennial 
or  septennial  acts,  which  required  the  calling  of  a  new  as- 
sembly at  the  end  of  a  fixed  period  of  time,  but  still  left  the 
governor  comparatively  free.^  By  far  the  more  important 
check,  however,  from  a  practical  point  of  view,  was  to  be 
found  in  the  financial  necessities  of  the  provincial  govern- 
ments. An  assembly  which  held  the  purse-strings  could  not 
be  dispensed  with;  and  the  result  was  that  annual  sessions 
became  the  rule  in  nearly  all  the  colonies,  though  there  were 
some  exceptions.  The  Virginia  statutes,  for  example,  show 
several  considerable  gaps:  from  1686  to  1691  there  was  no 
legislation  and  apparently  no  legislature,  also  from  171 5  to 
1 718,  and  finally  from  1748  to  1752,  periods  of  three  and  four 
years. ^  It  will  be  remembered  that  in  Virginia  official  salaries 
were  paid  out  of  a  permanent  fund. 

The  right  of  summons  has  another  aspect  in  its  bearing 
upon  the  election  of  members  of  the  lower  house,  or  House  of 
Representatives.  Elections  to  this  body  were  held  regularly 
in  accordance  with  writs  issued  by  the  governor  to  the  sheriffs 
directing  the  choice  of  a  certain  number  of  representatives 
from  each  district.^  The  question  then  arises  as  to  whether 
the  governor  had  any  discretion  in  the  issue  of  the  writ,  so 
far,  for  example,  as  to  determine  the  number  of  members  who 
should  be  returned  from  a  particular  district,  or  to  grant  the 
right  of  representation  to  a  new  district.  To  this  it  may  be 
said  that  in  general  the  writ  of  summons  was  purely  formal, 
though  sometimes  the  question  was  raised  in  a  practical  form. 
An  example  is  seen  in  a  petition  of  the  Maryland  House,  in 
1676,  protesting  against  the  proprietor's  abuse  of  the  right  of 
summons;  the  petition  admitted  the  right  of  the  proprietor 
(then  governor)  to  determine  the  number  to  be  elected,   but 

1  Pennsylvania  "charter  of  privileges,"  in  Poore,  Charters  and  Constitu- 
tions, ii.  1536;  Massachusetts  charter  of  1691,  Ibid.,  i.  942. 

2  See  below,  pp.  155  seq. 

^  See  Hening,  Statutes,  iii.,  iv.,  vi. 

*  See  e.g.  Ibid.,  iii.  236;  North  Carolitta  Records,  iv.  534;  Cooper, 
Statutes  of  South  Carolina,  iii.  50-55.  In  South  Carolina  the  church- 
wardens formed  a  part  of  this  machinery  of  election. 


THE  RIGHT  OF  SUMMONS.  147 

there  was  dissatisfaction  because,  out  of  four  persons  elected, 
only  two  had  been  called  out  by  writ  to  serve.  The  governor 
ao-reed  at  that  time  to  summon  four.^  In  1681  and  1682  the 
lower  house  attempted  to  regulate  the  number  of  representa- 
tives by  statute;  but  the  proprietor  resisted,  and  finally 
himself  issued  an  ordinance  regulating  the  representation. 
Thereupon  the  House  demanded  something  more  permanent, 
asking  the  passage  of  an  act  for  that  purpose;  but  the  gov- 
ernor refused  to  surrender  his  prerogative.  The  appointment 
of  delegates  and  the  form  of  the  writ  were,  however,  finally 
settled  by  statute.^ 

A  similar  question  arose  in  North  Carolina,  where  com- 
plaint was  made  that  Governor  Burrington  and  his  council  ar- 
ranged electoral  districts  without  the  consent  of  the  assembly 
in  order  to  control  elections.  The  governor  insisted  that  he 
had  precedents;  but  this  claim  the  assembly  denied,  and  finally 
v.'ent  so  far  as  to  exclude  members  from  new  precincts  not  fixed 
by  act  of  assembly.  For  a  time  the  point  was  gained,  and  the 
representation  was  fixed  by  acts  of  assembly.^  Finally,  how- 
ever, the  home  government  interfered :  the  acts  of  assembly 
creating  electoral  districts  were  disallowed,  and  the  principle 
was  laid  down  that  the  right  to  elect  members  ought  to  be  con- 
ferred only  by  the  crown,  a  principle  which  was  carried  out  in 
the  form  of  proclamations  issued  in  the  king's  name  by  the 
governor.'^  In  New  Hampshire  also  the  same  point  was  the 
occasion  of  a  contest,  in  which  after  long  deadlocks  the  assembly 
was  finally  beaten.^     A  different  position  was  taken  in  New 

1  Maryland  Archives,  ii.  507. 

^  Ibid.^  vii.  118-125,  236,  333,  355,  452;  Bacon,  Laws,  1716,  ch.  11. 

^  North  Carolina  Records,  iii.  380,  383,  445,  576,  583,611;  Martin, 
IredeWs  Piiblic  Acts,  i.  67. 

*  Chalmers,  Opinions,  271-292;  North  Carolina  Records,  v.  81-92,  341, 
406;  instructions  to  Dobbs,  1754,  §§  13-16.  Cf.  North  Carolina  Records, 
V.  "j^)"],  and  Iredell,  Laws  of  North  Carolina,  109. 

5  N'ew  Hampshire  Provincial  Papers,  v.  260-265,  295,  vi.  70-82,  125, 
128-129,  138,  161,  840,  883.  The  additional  instruction  to  Governor  Ben- 
ning  Wentworth,  in  1748,  took  the  ground  that  the  right  to  send  repre- 
sentatives was  founded  in  the  commission  and  instructions,  and  that  it  was 
the  prerogative  of  the  crown  to  extend  the  privilege  as  it  chose  (Ibid.,  vi.  82). 


148    THE  GOVERNOR'S  POWER  OVER  THE  ASSEMBLY. 

Jersey,  where  the  original  apportionment  of  representatives 
was  made  in  the  governor's  instructions.  New  assignments, 
however,  were  here  fixed  by  acts  of  assembly,  although  these 
acts  were  passed  with  a  clause  suspending  execution  till  the 
crown  should  give  its  assent.^  In  the  other  colonies  the  crown 
apparently  made  at  first  no  objection  to  apportionment  by  acts 
of  assembly;  in  fact,  this  method  formed  the  general  rule  until 
the  latter  part  of  the  colonial  period,  when  the  governors  were 
specifically  forbidden  to  assent  to  any  act  increasing  the  num- 
ber of  members  of  the  assembly.^ 

Owing  to  the  fact  that  elections  were  held  in  accordance 
with  the  governor's  writs  addressed  to  the  sheriffs,  who  were 
his  appointees,  the  governor  had  some  opportunity  to  influence 
the  election  of  members.  Indeed,  corruption  of  this  kind  was 
distinctly  charged  against  several  provincial  governors;  and 
in  a  report  on  the  condition  of  the  colonies,  made  to  the  Board 
of  Trade  in  171 5,  the  governors  generally  were  accused  of  in- 
fluencing  elections   unlawfully.^     It  must   be   said,  however, 

1  Allinson,  Acts  of  Assembly,  chs.  44,  125,  160,  207,  474  ;  instructions  to 
Cornbury,  1702,  §  15. 

2  Bacon,  Laws  of  Maryland,  1716,  ch.  11 ;  Hening,  Statutes  of  Virginia, 
iii.  414;  Cooper,  Statutes  of  South  Carolina,  iv.  37;  Massachusetts  Prov- 
ince Laws,  passim.  By  the  Massachusetts  charter  the  General  Court  had 
the  right  to  apportion  the  representation  of  the  towns ;  by  ch.  38  of  the  acts 
of  1692-3  each  town  of  forty  qualified  voters  was  required  to  send  one 
representative ;  towns  having  one  hundred  and  twenty  qualified  voters 
might  send  two  members.  For  acts  creating  towns  with  full  privileges, 
see  Massachusetts  Province  Laws  (ii.),  1724-S)  ch.  13;  1728-9,  ch.  20; 
1735-6,  ch.  ID.  For  later  rules  on  this  point,  see  instructions  to  Dunmore 
of  V;rginia,  1771,  §  14;  to  Dobbs  of  North  Carolina,  §  16;  circular  instruc- 
tion, 1767,  in  New  Jersey  Documents,  ix.  637. 

3  North  Carolina  Records,  ii.  159.  For  charges  brought  against  Moore 
of  South  Carolina  in  1701,  see  Oldmixon,  British  Empire  in  Atnerica,  i. 
/\r]t,-^  Party-Tyramiy  in  Carolina,  13;  Case  of  the  Dissenters,  18.  See  the 
suggestions  of  Chalmers  in  the  case  of  Governor  Bellomont  of  New  York, 
Chalmers,  Revolt,  i.  289-290.  Bellomont  himself  says  that  he  removed  the 
sheriffs  appointed  by  his  predecessor  and  chose  new  men  "  well  affected  to 
the  King,"  a  phrase  which  seems  sometimes  to  be  used  as  if  synonymous 
with  "  well  affected  to  the  governor."  Similar  charges  were  brought  against 
Lord  Cornbury  in  New  Jersey;  and  the  feeling  in  this  province  is  further 
illustrated  by  the  passage  of  an  act,  in  1725,  designed  to  prevent  improper 


ORGANIZATION  OF  THE  LOWER  HOUSE.  1 49 

that  this  charge  is  supported  by  comparatively  little  direct 
evidence  during  the  latter  part  of  the  colonial  period. 

After  the  assembly  had  once  met,  the  governor  of  the  colony 
claimed  some  control  over  the  organization  of  the  House.  The 
royal  commission  contained  the  apparently  innocent  provision 
that  the  regular  oaths  of  allegiance  and  fidelity  should  be 
administered  by  the  governor  to  the  members  of  the  assembly, 
and  that  no  one  should  be  permitted  to  sit  until  he  had  taken 
the  oath.^  This  practice  seems  generally  to  have  been  a  mere 
formality;  but  in  two  colonies  the  governor  attempted  to  make 
such  use  of  the  function  as  to  impair  the  ancient  parliamentary 
privilege  of  the  right  of  the  assembly  to  judge  of  the  election 
of  its  members.  For  example,  Governor  Belcher  of  New 
Hampshire  claimed  that  he  had  the  right  to  judge  what 
members  were  duly  elected ;  the  House  took  a  decided  stand 
against  this  assumption,  and  refused  to  proceed  to  busi- 
ness till  the  members  in  question  were  qualified;  whereupon 
the  governor  yielded  and  administered  the  oath.^  Similarly, 
Governor  Cornbury  of  New  Jersey  refused,  at  the  suggestion 
of  his  council,  to  swear  certain  members  whom  the  council 
declared  not  qualified;  and  though  he  succeeded  in  having  his 
way  for  the  time  being,  yet  he  was  censured  by  the  Board  of 
Trade,  which  wrote  that  his  lordship  would  "do  well  to  leave 
the  Determination  about  Elections  of  Representatives  to  that 
House,  and  not  to  intermeddle  therein.  "^  It  is  clear,  then, 
that  the  governor's  interpretation  was  not  sanctioned  by  the 
home  government. 

In  nearly  all  the  colonies  it  was  customary,  in  accordance 
with  the  usage  of  the  mother  country,  to  present  the  newly- 
elected  speaker  to  the  governor  for  the  latter' s  approval.  In 
England  this  presentation  had  become  a  mere  formality,  and 

action  at  elections  on  the  part  of  sheriffs  and  others.  See  New  York 
Docuvmits,  iv.  508;  New  Jersey  Doaunents,  iii.  S7;  Allinson,  Acts  of 
Assembly,  ch.  116. 

1  Commission  to  Bernard  of  New  Jersey,  1758,  §  8;  to  Allen  of  New 
Hampshire,  1692,  p.  58  ;  to  Dobbs  of  North  Carolina,  1761,  p.  526. 

2  A^ew  Hampshire  Provincial  Papers,  iv.  6S0-684. 
8  N^ew  Jersey  Doctime7iis,  iii.  %"]  seg.,  100. 

i 


ISO    THE  GOVERNOR'S  POWER  OVER  THE  ASSEMBLY. 

it  appears  to  have  been  so  in  most  of  the  colonies;  the  gover- 
nor seems  usually  to  have  given  his  approval  as  a  matter  of 
course,  even  when,  as  in  one  instance  in  North  Carolina,  the 
choice  must  have  been  extremely  distasteful  to  him.^  There 
were,  however,  a  few  cases  in  which  this  usually  formal  pro- 
cedure became  of  practical  importance.  In  1707,  Governor 
Cornbury  of  New  Jersey  strongly  objected  to  the  assembly's 
choice  of  Samuel  Jennings,  a  Quaker,  as  speaker,  and  was  at 
first  inclined  to  reject  the  appointment;  but  in  order  to  avoid 
trouble,  he  finally  decided  to  approve  it,  though  he  seems  to 
have  had  no  doubt  of  his  legal  right  to  negative  the  choice  of 
the  assembly.  2 

In  Massachusetts  the  presentation  of  the  speaker  seems  at 
first,  as  in  most  of  the  other  colonies,  to  have  been  regarded 
as  a  mere  formality.^  When,  however,  in  1705,  the  House 
chose  as  speaker  one  Oakes,  to  whom  Governor  Dudley  strongly 
objected,  the  latter  refused  to  give  his  approval;  whereupon 
the  House  ignored  the  governor's  action  and  proceeded  to 
business.  Dudley  finally  yielded,  but  with  a  formal  protest 
that  he  did  so  with  a  saving  of  his  prerogative  and  owing 
to  the  pressure  of  the  war.*  The  claim  was  revived  under 
more  favorable  circumstances  in  1720,  when  Governor  Shute 
negatived  the  speaker  chosen  by  the  House,  supporting  his 
action  by  the  opinion  of  the  home  government  given  at  the 
time  when  the  question  was  referred  to  it  by  Dudley.  Shute 
advised  the  House  to  choose  a  new  speaker,  and  to  appeal  to 
the  home  government  for  an  explanation  of  that  part  of  the 
charter  which  referred  to  the  governor's  negative  upon  all  acts 
of  the  General  Court.     The  House,  however,  held  its  ground, 

1  Maryland  Archives,  i.  397,  460;  Votes  and  Proceedings  of  the  Lower 
House,  Dec.  12,  1754,  and  Sept.  28,  1757;  Votes  of  Pennsylvania,  \.  pt.  i. 
44,  102,  108;  Stokes,  Constitution  of  the  British  Colonies,  127.  Note  espe- 
cially the  North  Carolina  case,  North  Carolina  Records,  iii.  540.     Cf.  Ibid. 

360,  431- 

2  Neiv  fersey  Documents,  iii.  224. 

8  See  e.g.  Massachusetts  Province  Lauis,  i.  90,  note;  Hutchinson,  His- 
tory of  Massachusetts,  ii.    17. 

4  Hutchinson,  History  of  Massachusetts,  ii.  17,  137;  SewalPs  Diary,  ii. 

130,  132. 


THE  RIGHT  OF  PROROGATION.  151 

refusing  to  choose  a  new  speaker,  and  was  dissolved.  In  1721 
the  assembly  chose  another  speaker.  The  governor  declared 
his  approval,  which  the  House  then  pronounced  unnecessary.  ^ 
The  dispute  was  finally  settled  by  the  so-called  "explanatory" 
charter,  which  decided  the  question  against  the  assembly. ^ 
In  New  Hampshire  also  the  same  point  was  successfully 
asserted  by  the  governor,  and  his  veto  was  sometimes  used 
with  effect.^ 

After  the  House  had  thus  been  summoned,  had  met,  and 
had  organized  itself,  the  governor  still  had  great  power  over 
it,  inasmuch  as  the  continuance  of  its  sessions  depended  en- 
tirely upon  his  will,  at  least  so  far  as  the  terms  of  the  royal 
commission  could  confer  that  power.  The  governor  was  au- 
thorized by  his  commission  to  adjourn,  prorogue,  and  dissolve 
all  general  assemblies  as  he  might  think  necessary;  and  by  a 
later  instruction  he  was  directed  not  to  allow  the  assembly  to 
adjourn  itself  except  from  day  to  day.  To  this  general  rule 
two  exceptions  must  be  noted.  In  Pennsylvania  the  char- 
ter provided  for  annual  elections,  and  directed  also  that  the 
assembly  should  sit  on  its  own  adjournments;  but  these  pro- 
visions did  not  at  first  prevent  the  governor  from  exercising 

1  Hutchinson,  History  of  Massachusetts,  ii.  211,  214-215,  226,  241. 

2  Poore,  Charters  and  Cotistitiitions,  i.  954. 

3  New  Ha)npshire  Provincial  Papers,  iv.  485-488.  The  veto  was  first 
used  in  1728,  when  the  House  submitted,  but  declared  the  wisdom  of  their 
first  choice.  Governor  Benning  Wentworth  made  effective  use  of  this 
power  in  his  disputes  with  the  assembly  concerning  the  governors  right  of 
summons.  In  1749  began  a  deadlock,  which  lasted  till  1752,  when  the 
assembly  was  dissolved ;  whereupon  the  new  assembly  chose  another 
speaker,  who  was  acceptable  to  the  governor  {Ibid.,  vi.  70-82,  125,  129-130). 
Frequently  the  clerk  of  the  assembly  was  appointed  by  the  governor 
(Hening,  Statutes  of  Virginia,  iii.  41  ;  Hartwell,  Blair,  and  Chilton,  P^-escnt 
State  of  Virginia,  28;  North  Carolina  Records,  iii.  354,  576;  Maryland 
Archives,  i.  261,  ii.  63,  439,  v.  505-506,  vii.  3,  523;  Stokes,  Cofistittttion 
of  the  British  Colo7iies,  127;  New  Jersey  Documents,  iii.  226-227).  In 
South  Carolina  the  assembly's  choice  of  a  clerk  was  regularly  at  least  sub- 
ject to  the  governor's  approval.  In  1732  the  governor  was  ordered  to  com- 
mission a  particular  person  as  clerk.  (South  Carolina  Historical  Society, 
Collections,  ii.  119,  134;  Chalmers,  Revolt,  ii.  170). 


152    THE   GOVERNOR'S  POWER  OVER  THE  ASSEMBLY. 

his  powers  of  prorogation  and  dissolution.  In  Massachusetts 
there  was  a  similar  charter  provision  for  annual  elections  and 
annual  meetings ;  but  the  power  of  prorogation  and  dissolution 
remained  within  these  limits. ^ 

In  regard  to  the  question  of  prorogation,  it  was  held  by  the 
crown  law  officers  that  the  governor  might  prorogue  to  any 
time  or  to  any  place,  that  he  might  even  prorogue  an  assembly 
when  not  in  session.^  How  was  this  power  actually  exercised? 
In  the  first  place,  assemblies  that  proved  refractory  were  often 
prorogued,  in  the  hope  that  a  short  interval  of  consideration 
might  bring  them  to  a  more  favorable  mood.^  Furthermore, 
it  was  charged  by  the  assemblies,  and  probably  with  some 
truth,  that  the  governor  also  used  this  power  merely  as  a 
means  of  harassing  the  assembly  in  the  hope  of  forcing  it 
to  accede  to  his  demands.*  This  view  seems  to  be  taken 
for  granted  by  Douglass  in  his  "Summary,"  where  he  says 
that  the  governor  "calls,  dissolves,  prorogues,  adjourns,  re- 
moves, and  other  ways  harasses  the  General  Assembly  at 
Pleasure."^ 

There  can  indeed  be  no  doubt  that  assemblies  were  some- 
times prorogued  in  order  to  prevent  them  from  taking  action 
not  in  accordance  with  the  governor's  wishes.  A  serious 
charge  of  this  sort  was  brought  against  Governor  Belcher  when 
he  was  governor  of  both  Massachusetts  and  New  Hampshire. 
The  crown,  it  seems,  had  recommended  that  the  assembly  of 
each  province  appoint  commissioners  to  present  its  boundary 

1  See  the  charters  of  Massachusetts  and  Pennsylvania  respective!}',  in 
Poore,  Charters  and  Constiiutions,  i.  942,  ii.  1536.  Cf.  Votes  of  Pennsyl- 
vania,  i.  Appendix,  xv,  and  i.  pt.  ii.  16;  commission  to  Bernard  of  New 
Jersey,  1758,  §  12,  and  to  Dobbs  of  North  Carolina,  1761,  p.  527;  instruc- 
tions to  Dunmore  of  Virginia,  1771,  §  15. 

2  Chalmers,  Opinions,  239-243,  249.  These  rights  were  disputed  in  Mas- 
sachusetts and  North  Carolina  (Hutchinson,  History  ofMassacJmsetts,  ii.  241, 
245  ;  Massachusetts  Province  Laws,  i.  363,  ii.  234;  A^orth  Carolina  Records, 
ii.  576). 

3  See  e.g.  N'orth  Carolina  Records,  vi.  243-244,  828;  A^ew  Hainpshire 
Provincial  Papers,  i.  545. 

4  New  York  Doctiments,  vi.  626;  A^ew  Jersey  Docutnents,  xiv.  177. 

5  Sumjnary  of  the  First  Planting  of  the  British  Settlements  in  North 
America,  i.  474. 


THE  RIGHT  OF  DISSOLUTION.  1 53 

claims;  anci  it  was  charged  against  Governor  Belcher,  who 
was  a  Massachusetts  man  by  birth  and  whose  sympathies  were 
strongly  on  the  side  of  that  province,  that  he  prorogued  the 
assembly  till  some  days  after  the  date  fixed  for  the  meeting  of 
the  arbitrators;  it  was  also  charged  that  he  afterwards  pre- 
vented the  assembly  from  meeting  in  time  to  appeal  from  the 
decision  as  reported  by  these  arbitrators.  For  this  conduct 
he  was  severely  censured  by  the  home  government. ^  Other 
instances  occurred  in  1765  and  1768,  when  the  governors  of 
New  York  and  Georgia  used  their  right  of  prorogation  in  a 
similar  way  to  prevent  action  by  their  assemblies  on  the 
Stamp  Act  Congress  and  the  Massachusetts  circular  letter. ^ 
It  must  be  remembered,  too,  that  this  control  over  adjourn- 
ments worked  both  ways:  if  the  governor  might  adjourn  or 
prorogue  the  assembly  against  its  will,  he  might  also  keep  it 
in  session  equally  against  its  will.^ 

The  question  in  regard  to  dissolution  now  occurs.  Proroga- 
tion merely  ended  a  particular  session ;  dissolution  terminated 
the  life  of  an  assembly :  it  is  therefore  not  difficult  to  see  that 
the  governor,  vs^ith  this  power  of  dissolution  in  his  hands,  had 
a  very  effective  hold  upon  the  assembly.  This  right  belonged 
to  the  governor  in  every  colony  except  Pennsylvania  where 
it  was  disputed  and  seems  finally  to  have  been  abandoned.* 
Dissolution  was  a  common  method  of  getting  rid  of  an  obsti- 
nate assembly,  in  the  hope  of  securing  one  which  would  prove 
more  tractable.  For  example.  Governor  Shute  dissolved  the 
Massachusetts  General  Court  in  1720,  with  the  announcement 
that   he  would  serve  out  a  new  summons  speedily,  when  he 

^  A'eTV  Hampshire  Provincial  Papers,  iv.  864,  v.  921-923;  report  of 
Lords  of  Council,  in  Belknap,  History  of  A^ew  Hampshire,  ii.  168.  Cf. 
Hutchinson,  History  of  Massachtisetts,  ii.  349-350. 

2  Almon,  Prior  Do ctinieiits,  36,  217. 

8  See  e.  g.  Hutchinson,  History  of  Afassachusetts,  ii.  306-309,  notes. 

*  "  We  sit  upon  our  own  adjournments,  when  we  please,  and  as  long  as 
we  think  necessary ;  and  we  are  not  to  be  sent  a  packing,  in  the  middle  of 
a  debate,  and  disabled  from  representing  our  just  grievances  .  .  .  which 
has  often  been  the  fate  of  Assemblies  in  other  places  " :  speech  of  Andrew 
Hamilton,  in  Proud,  History  of  Pennsylvania,  ii.  217.  Cf.  Votes  of  Penn- 
sylvania, i.  pt.  ii.  16. 


154    THE  GOVERNOR'S  POWER  OVER  THE  ASSEMBLY. 

hoped  that  representatives  would  be  chosen  "that  should  fear 
God,  and  honour  the  King"  ;  and  Governor  Johnston  of  North 
Carolina  declared  that  the  assembly  had  failed  to  ''mend"  and 
that  he  had  therefore  dissolved  it.^  The  assembly  w^as  some- 
times dissolved  because  the  governor  feared  action  inconsistent 
with  his  own  interests.  Thus,  Governor  Reynolds  of  Georgia 
was  charged  with  having  dissolved  an  assembly,  with  the 
taxes  of  the  coming  year  unprovided  for,  in  order  to  prevent 
an  inconvenient  inquiry  into  the  conduct  of  one  of  his  favor- 
ites. ^  Of  course  the  dread  of  dissolution  must  have  had  some 
influence  upon  the  action  of  members  who  were  by  no  means 
sure  of  being  returned  at  a  new  election;  but  on  the  whole 
it  may  be  questioned  whether  the  dissolution  of  a  refractory 
assembly  brought  the  governor  any  very  great  advantage  in  the 
long  run,  especially  during  the  latter  part  of  the  colonial  era, 
when  the  issue  between  local  interests  as  represented  by  the 
assembly  and  royal  interests  as  represented  by  the  governor 
became  more  clearly  marked,  and  when  an  abrupt  dissolution 
would  have  tended  to  emphasize  that  issue  more  sharply.  The 
result  of  such  action  might  very  well  have  been  that  a  new 
election  would  be  fatal  to  many  of  the  governor's  supporters, 
and  that  the  new  house  would  be  more  decided  in  its  opposi- 
tion than  its  predecessor. 

Another  feature  of  the  right  of  dissolution,  and  perhaps 
on  the  whole  a  more  dangerous  one,  was  the  power  to  refuse 
dissolution.  If  "it  was  desirable  to  dissolve  an  unfavorable 
assembly,  it  was  just  as  clearly  desirable  to  keep  a  compliant 
one  when  once  chosen,  a  consideration  which  often  caused 
assemblies  to  be  kept  in  existence  for  several  years.  For 
example,  in  Virginia  the  assembly  which  was  first  called  in 
February,  1727,  held  its  second  session  in  May,  1730,  its 
third  session  in  May,  1732,  and  its  fourth  session  in  August, 
1734.     Another  striking  case  is  that  of  the  assembly  of  1742, 

1  SewaWs  Diary,  iii.  255 ;  North  Carolina  Records,  iv.  243.  In  New 
Hampshire  the  frequent  dissolutions  under  Governor  Belcher  gave  great 
dissatisfaction.  They  were  due  chiefly  to  failure  to  agree  upon  supply  bills 
(Provincial  Papers,  iv.  679,  688). 

2  Jones,  History  of  Georgia,  i.  512. 


TRIENNIAL  AND  SEPTENNIAL  ACTS.  155 

which  held  its  second  session  in  1744,  its  fourth  in  1746,  and 
its  fifth  in  1747.^  The  New  Hampshire  assembly  of  1722 
presented  as  a  grievance  the  fact  that  it  was  five  years  since 
it  first  met,  and  prayed  for  a  dissolution.'-^  In  another  case 
in  the  same  province,  the  governor  refused  to  dissolve  the 
assembly  till  the  king's  business  was  done,  that  is,  till  an 
appropriate  supply  was  granted. ^  Hamilton,  in  his  famous 
speech  in  defence  of  Zenger,  referred  to  the  case  of  a  gov- 
ernor in  his  time  who  had  kept  an  assembly  for  "near  twice 
seven  years  together."* 

That  the  necessity  of  limiting  the  action  of  the  governor  in 
the  exercise  of  his  functions  of  summons,  prorogation,  and 
dissolution  was  strongly  felt,  is  seen  in  the  large  number  of 
triennial  and  septennial  acts  passed  in  the  different  colonies. 
Reference  has  already  been  made  to  the  charter  provisions 
in  Pennsylvania  and  Massachusetts.  In  some  of  the  other 
provinces  there  survived  traditions  of  a  freer  practice  before 
the  days  of  the  royal  government.  Thus,  South  Carolina  dur- 
ing the  proprietary  period  had  passed  a  statute  limiting  the 
life  of  an  assembly  to  two  years,  and  providing  that  sessions 
should  be  held  at  least  once  a  year,  closing,  however,  with  a 
saving  of  the  proprietors'  prerogative  to  adjourn,  prorogue, 
and  dissolve  any  assembly  "when  and  as  often  as  they  shall 
think  fit."  5  In  1721,  the  second  year  of  the  royal  government, 
a  similar  act  was  passed,  requiring  dissolution  once  in  every 
three  years. ^  Under  the  act  of  1745  an  annual  dissolution  was 
required;  but  this  action  seems  to  have  been  regarded  as 
radical,  for  two  years  later  a  provision  was  made  for  dissolution 
only  once  in  two  years.''  In  North  Carolina  there  had  been  a 
biennial  assembly  act  during  the  proprietary  period,  but  it  was 
disallowed  by  the   crown.®     In  East  and    West  Jersey  under 

^  See  Hening,  Statutes,  iv.,  v. 

2  New  Hampshire  Provincial  Papers,  iv.  24. 

8  Ibid.,  V.  562. 

^  Howell,  State  Trials,  xvii.  708. 

^  Cooper,  Statutes,  ii.  79.  ^  Ibid.,  iii.  135. 

'  Ibid.,  657,  692. 

^  Martin,  IredeWs  Ptiblic  Acts,  i.  9;  North  Carolina  Records,  ii.  213. 


156    THE  GOVERNOR'S  POWER  OVER  THE  ASSEMBLY. 

the  proprietors,  provisions  for  annual  elections  had  been  made; 
and  in  West  Jersey  the  assembly  adjourned  itself. ^ 

These  precedents  naturally  had  their  influence  upon  the 
action  of  the  assemblies.  In  1723  the  New  Hampshire  as- 
sembly passed  a  triennial  act  with  a  suspending  clause;  the 
bill  was  not  favorably  received  by  the  home  government,  how- 
ever, and  it  became  evident  that  the  royal  assent  was  not  likely 
to  be  given.  In  1728  a  new  bill  was  brought  in  and  passed; 
but  this  time  the  assembly  prudently  omitted  the  suspending 
clause,  declaring  with  questionable  logic  that  failure  to  dis- 
allow the  act  proved  that  it  was  not  offensive  to  the  crown.  ^ 
Other  attempts  to  enact  triennial  laws  proved  less  successful. 
New  Jersey  passed  a  triennial  act  in  1728,  but  it  was  disal- 
lowed by  the  crown;  and  a  similar  bill  passed  the  assembly 
in  1739,  only  to  be  vetoed  by  the  governor.^  In  New  York  a 
triennial  act  was  passed  in  1737,  and  a  strong  message  was 
sent  home  by  the  assembly  urging  the  royal  assent.  In  this 
appeal,  reference  was  made  to  the  long  continuance  of  the  last 
two  assemblies  as  a  serious  grievance,  and  particular  emphasis 
was  laid  on  the  fact  that  the  corrupting  influence  of  patronage 
upon  the  assembly  was  so  great  that  "in  some  Counties,"  to 
use  the  words  of  the  message,  "even  their  very  Representa- 
tives have  become  themselves  their  greatest  Grievance."  The 
Board  of  Trade,  on  consultation  with  its  counsel,  declared  the 
act  an  infringement  of  the  royal  prerogative,  and  recommended 
its  disallowance;  a  few  years  later,  however,  a  poor  substitute 
was  secured  in  a  septennial  act,  limiting  the  continuance  of 
the  assembly  to  seven  years.*  Virginia  passed  a  septennial 
act  in  1762,  requiring  that  a  session  should  be  held  at  least 
once  in  three  years. ^  Finally,  in  1767,  the  home  government 
declared   itself  definitely  on  the  whole  subject  of  such  limita- 

^  Learning  and  Spicer,  Grants,  Concessions,  etc.,  368,  423-424. 

2  New  Hampshire  Provincial  Papers,  iv.   114-115,   117,  126-127,  146, 
468-469,  472,  489,  492  ;  Acts  and  Laws  of  New  Hampshire  (i770j  ch.  107. 

3  Allinson,  Acts  of  Assembly,  cli.  133;  Moi-ris  Papers,  74,  124. 

4  Documentary  History  of  New  York  (1849-51),  iv.  245-256;  A^ew  York 
Documents,  vii.  353,  viii.  444;  Laws  of  New  York,  1691-1 773,  ch.  746. 

6  Hening,  Statutes,  vii.  517. 


DISTRIBUTION  OF  PATRONAGE.  1 57 

tions  of  the  governor's  power,  by  a  general  instruction  of  that 
year  directing  the  governors  not  to  assent  to  any  act  fixing  the 
duration  of  the  assembly.^ 

As  the  motives  that  led  to  the  passage  of  these  acts  are 
plainly  apparent,  so  those  which  animated  the  opposition  to 
them  seem  equally  clear.  It  was  believed  that  such  acts 
tended  to  weaken  the  dependence  of  the  colonial  legislature 
upon  the  governor,  and  therefore  its  dependence  upon  the 
crown,  whose  representative  he  was.  Governor  Montgomerie 
of  New  York  and  New  Jersey  probably  stated  accurately  the 
feelings  of  many  of  his  fellow-governors  when,  in  urging  the 
disallowance  of  the  New  Jersey  triennial  act,  he  said  that  his 
predecessors  "could  not  have  carried  on  the  publick  business 
so  quietly  and  Successfully  as  they  did,  if  they  had  been  obliged 
to  call  a  new  Assembly  every  three  years. "  ^ 

In  addition  to  these  constitutional  means  of  influence,  there 
was  another  effective  method  by  which  the  governor  acted  on 
the  assembly,  namely,  through  his  power  of  dispensing  patron- 
age, a  function  that  in  many  of  the  provinces  was  undoubtedly 
an  element  of  considerable  importance.  Thus,  according  to  a 
contemporary  writer,  the  independence  of  the  Virginia  assembly 
was  seriously  impaired  by  the  assignment  of  offices  to  various 
members  of  the  lower  house. ^  Similar  charges  were  made  in 
Massachusetts;  in  a  pamphlet  issued  in  this  province  in  1708, 
entitled  "The  Deplorable  State  of  New-England,"  is  an  inter- 
esting passage  which  shows  at  least  something  of  the  state  of 
popular  feeling  at  the  time.^     The  writer  attributes  the  gover- 

1  Neiv  Jersey  Documents,  ix.  637.  A  year  later  the  New  Jersey  assembly 
passed  a  septennial  act  with  a  suspending  clause.  In  Allinson's  collection 
of  New  Jersey  statutes  (ch.  473),  the  text  of  this  act  is  followed  by  a  note 
explaining  that  the  act  had  never  received  the  royal  assent,  but  was  inserted 
on  the  "  Probabihty  that  so  reasonable  a  law  will  be  regarded."  Whether 
this  expectation  was  reasonable  may  well  be  doubted ;  on  the  other  hand, 
the  limitation  imposed  was  so  slight  that  the  temptation  to  violate  it  could 
hardly  have  been  serious. 

2  New  Jersey  Documents,  v.  236. 

^  Hartwell,  Blair,  and  Chilton,  Present  State  of  Virginia,  Tj-z%. 

*  "  It  must  needs  be  a  Mortal  Sin,  to  Disoblige  a  Governour,  that  has 


158    THE  GOVERNOR'S  POWER  OVER  THE  ASSEMBLY. 

nor's  influence  over  the  representatives  to  his  distribution  of 
official  patronage.  Allowance  must  of  course  be  made  here 
for  extreme  partisanship;  but  much  the  same  view  is  gained 
from  more  trustworthy  sources.  ^  The  New  York  assembly,  in 
urging  the  passage  of  the  triennial  act,  had  emphasized  the 
corrupting  influence  of  official  patronage  upon  the  members  of 
the  assembly. 2  Maryland  furnishes  an  extreme  illustration 
of  the  same  point.  It  was  at  one  time  a  favorite  policy  of  the 
proprietor,  and  of  his  secretary,  to  win  over  the  members 
of  the  opposition  by  appointing  them  to  provincial  offices. 
At  one  time,  indeed,  an  elaborate  system  of  corruption  was 
proposed,  by  which  the  assembly  was  to  be  kept  permanently 
under  control.^ 

Something  should  be  said  in  regard  to  the  attempts  made 
by  the  various  assemblies  to  check  this  dangerous  abuse.  In 
1678  the  question  was  raised  in  the  Maryland  assembly  as  to 
whether  the  proprietary  sheriffs  or  law  officers  should  be 
allowed  to  sit  in  the  assembly.  Soon  afterwards  an  act  was 
passed  disqualifying  sheriffs  and  ordinary-keepers  (who  received 
their  licenses  from  the  governor);  and  three  years  later  the 
assembly  enforced  its  view  by  throwing  out  all  sheriffs  who 
had  been  elected  members.*  In  17 16  an  act  was  finally  passed 
disqualifying  for  membership  in  the  assembly  ordinary-keepers 
and  all  other  persons  disqualified  to  sit  in  the  British  Parlia- 
ment.^ In  1757  the  lower  house  passed  a  radical  measure, 
disqualifying  for  election  to  the  assembly  all  holders  of  pro- 
prietary   offices;  providing,    furthermore,    that  if   any  person 

Inabled  a  Man  to  Command  a  whole  Country  Town,  and  to  Strut  among 
his  Neighbours,  with  the  Illustrious  Titles  of,  Our  Major,  and,  The  Cap- 
tain, or,  His  Worship  "  .•  The  Deplorable  State  of  New  England  {170^),  21. 

1  For  example,  Hutchinson  says  of  both  Shirley  and  Povvnall  that  they 
used  official  patronage  as  a  means  of  influencing  the  assembly  :  History  of 
Massachusetts,  iii.  57. 

2  Docujnentary  History  of  New  York  (1849-51),  iv.  245.  Clarke  of 
New  York  seems  to  have  been  a  serious  offender  (see  New  fersey  Docu- 
ments, vi.  75). 

s  Maryland  Archives,  vi.  183,  ix.  331,  375  seq.,  423. 

4  Ibid.,  vii.  17,  (>3,  114- 

5  Bacon,  Laws  of  Maryland,  1716,  ch.  11. 


ACTS  DISQUALIFYING   OFFICE-HOLDERS.  1 59 

within  six  years  after  ceasing  to  be  a  member  of  the  assembly 
should  hold  any  office  of  trust  or  profit,  or  receive  any  pension, 
he  should  be  fined  one  thousand  pounds;  and,  finally,  forbid- 
ding members  to  solicit  offices  for  their  friends  under  penalty 
of  a  fine  of  the  same  amount.^  This  was  an  extreme  measure, 
and  was  of  course  rejected  by  the  upper  house  ;2  but  it  is  inter- 
esting, because  it  shows  that  civil  service  reform  had  made 
some  progress  in  Maryland  even  at  that  early  date. 

A  Virginia  act  of  1730  disqualified  sheriffs  absolutely,  and 
provided  that  members  accepting  other  offices  of  profit  should 
resign  their  seats,  though  they  might  be  re-elected.  A  similar 
act  was  passed  in  1762.^  A  South  Carolina  statute  of  1745 
disqualified  salaried  officers  of  the  province  for  membership 
in  the  assembly.^  The  New  York  assembly,  after  an  attempt 
to  disqualify  all  officers,  finally  in  1770  passed  an  act  dis- 
qualifying judicial  officers  for  sitting  in  the  assembly;  but 
the  act  was  disallowed  by  the  crown. ^  These  are  compara- 
tively insignificant  results,  but  they  are  at  least  interesting  as 
showing  an  appreciation  of  the  evils  which  they  were  designed 
to  correct. 

Thus  far  attention  has  been  given  to  the  indirect  action  of 
the  governor  upon  legislation  through  his  influence  over  the 
assembly.  But  the  governor  was  not  limited  to  this  indirect 
influence:  he  was  himself  a  part  of  the  legislative  system. 
Some  of  the  early  governors  had  been  invested  with  legislative 
authority,  either  independently  or  with  the  cooperation  of  the 
council ;  but,  as  has  been  seen,  this  abnormal  condition  gradu- 
ally passed  away,  leaving  to  the  governor  only  a  limited  right 
of  issuing  ordinances  and  the  power  to  approve  or  veto  the 
legislation  of  the  assembly. 

Reference  has  already  been  made  to  the  governor's  right  of 
issuing  ordinances  or  proclamations  of  two   classes,   namely, 

^  Votes  and  Proceedings  of  the  Lo'^ver  Hotise,  Dec.  8,  1757. 

2  Ibid.,  Dec.  16,  1757,  May  4,  1758. 

*  Hening,  Stahites,  iv.  292,  vii.  529. 

*  Cooper,  Statutes,  iii.  657. 

5  New  York  Documents,  viii.  206-207,  215. 


l60    THE  GOVERNOR'S  POWER  OVER  THE  ASSEMBLY. 

those  for  the  regulation  of  fees  and  those  for  the  erection  of 
courts.  It  will  be  remembered  also  that  in  both  of  these  cases 
his  use  of  this  authority  gave  rise  to  serious  disputes.^  With 
these  exceptions,  however,  the  issue  of  ordinances  by  the  gov- 
ernor seems  as  a  rule  to  have  been  kept  within  reasonable 
bounds,  and  complaints  of  his  exercise  of  the  power  are  com- 
paratively rare.  The  most  common  of  the  ordinances  issued 
by  him  were  proclamations  enforcing  the  provisions  of  statute 
or  treaty,  and  regulations  regarding  subjects  that  might  fairly 
be  considered  matters  of  executive  concern.  Some  instances 
may  be  taken  almost  at  random.  Thus,  in  the  Virginia  stat- 
utes is  a  proclamation  regarding  settlement  on  the  outlands 
in  time  of  danger ;  another  forbidding  the  seating  of  certain 
lands  near  the  North  Carolina  border;  a  third  establishing 
regulations  for  trade  with  the  westward  Indians.^  Again,  the 
governor  of  North  Carolina  is  recommended  by  his  council  to 
issue  a  proclamation  regulating  the  sale  of  liquor  to  Indians.^ 
A  Maryland  proclamation  of  1672  prohibits  the  export  of 
sheep,  a  measure  intended  to  check  evasion  of  the  statute  pro- 
hibiting the  export  of  wool.^  During  the  French  and  Indian 
troubles  the  New  Hampshire  council,  at  Governor  Dudley's 
direction,  issued  an  ordinance  requiring  the  registration  of  all 
Frenchmen  within  the  province.^  In  1721  the  governor  of 
Massachusetts,  anticipating  war  with  the  Indians,  issued  an 
order  to  the  frontier  settlers  directing  them  to  remain  on  their 
estates  and  keep  possession  of  the  country;  and  though  his 
authority  was  questioned,  yet  some  extension  of  the  power  to 
issue  ordinances  may  be  justified  by  the  stress  of  military 
necessity.^  Another  case,  which  seems  more  distinctly  an 
encroachment  upon  legislative  ground,  is  the  ordinance  issued 
by  the  governor  of  New  Jersey  in  171 7  in  regard  to  the  regula- 
tion of  ferriage.'''     On  the  whole,  however,   it   may  fairly  be 

1  See  above,  p.  118  seq.,  137  seq. 

2  Hening,  Statutes,  iv.  546,  552-553. 

8  North  Carolina  Records,  iv.  45,  and  cf.  41-42. 

*  Maryland  Archives,  v.  105. 

*  N'eiu  Hampshire  Provincial  Papers,  ii.  429. 

®  Hutchinson,  History  of  Massachusetts,  ii.  236. 
'  Allinson,  Acts  of  Assembly,  ch.  78. 


RECOMMENDATION  OF  LEGISLATION.  l6l 

said  that  there  is  no  evidence  of  general  or  serious  abuse  of 
the  power  of  issuing  ordinances. 

The  governor  was  furthermore,  as  has  been  said,  a  part  of 
the  regular  legislative  system  of  the  province,  acting  with  the 
cooperation  of  the  council  and  assembly :  the  commission  em- 
powered him,  with  the  consent  of  the  council  and  assembly, 
to  make  laws  not  repugnant  but,  as  nearly  as  might  be,  agree- 
able to  the  laws  of  England.^  In  theory  this  power  seems  con- 
siderable.     How  much  did  it  actually  mean  in  practice? 

In  some  of  the  colonies  during  the  earliest  period  there  had 
been,  as  has  been  seen,  an  effort  to  secure  for  the  governor 
the  right  of  initiative  in  legislation.  All  such  attempts  had 
failed,  however ;  and  during  the  later  period  also  any  attempt 
on  the  part  of  the  governor  to  initiate  legislation  was  regarded 
with  great  suspicion.  This  feeling  was  so  strong,  indeed,  that 
when  Governor  Wentworth  of  New  Hampshire  sent  down  the 
draft  of  two  orders  on  money  matters,  to  be  passed  upon  by  the 
House,  his  action  was  resented  as  tending  to  impair  the  inde- 
pendence of  the  assembly. 2  In  reality,  the  governor  had  the 
bare  right  of  recommending  legislation;  and  this  he  usually 
did  in  his  speech  delivered  before  the  assembly  at  the  begin- 
ning of  its  sessions.  In  this  speech  he  ordinarily  gave  some 
account  of  the  condition  of  the  province,  and,  in  time  of  war,  of 
the  conduct  of  military  operations  or  of  negotiations  with  the 
Indians;  he  then  advised  the  passage  of  laws  necessary  to 
meet  the  needs  of  the  province,  usually  urging  as  his  most 
prominent  recommendation  the  passage  of  a  supply  act.^  The 
governor  was  also  made  the  medium  through  which  the  home 
government  communicated  with  the  assembly,  receiving  always 
in  his  instructions  a  number  of  articles  directing  him  to  re- 
commend the  passage  of  particular  legislation  desired  by  the 
crown.  ^ 

1  Commission  to  Bernard  of  New  Jersey,  1758,  §  9;  to  Allen  of  New 
Hampshire,  1692,  pp.  58-59;  to  Dobbs  of  North  Carolina,  1761,  p.  527. 

2  New  Hampshire  Provincial  Papers,  vi.  64. 

^  For  an  illustration  of  a  governor's  speech,  see  that  of  Governor  Went- 
worth in  1752,  Ibid.,  130. 

*  For  example.  Governor  Bernard  of  New  Jersey  was  in  1758  required  to 
recommend  acts  for  the  following  purposes :  for  the  prevention  of  the  in- 

II 


1 62    THE  GOVERNOR'S  POWER  OVER  THE  ASSEMBLY. 

Since  the  right  of  recommendation  necessarily  carried  with 
it  very  little  actual  power,  the  governor  was  left  to  find  his 
really  important  legislative  function  in  his  right  to  approve, 
or  to  refuse  to  approve,  bills  passed  by  the  council  and  the 
representative  house.  The  commission  gave  him  a  negative 
vote  on  all  laws,  statutes,  and  ordinances,  "to  the  end  that 
nothing  may  be  passed  or  done  by  Our  said  Council  or  As- 
sembly, to  the  Prejudice  of  us.  Our  Heirs  and  Successors, "  ^ 
Furthermore,  this  veto  was  not  merely  suspensive :  there  was 
no  such  thing  as  passing  a  bill  over  the  governor's  head. 

On  the  other  hand,  the  governor's  right  of  assent  to  legis- 
lation was  neither  final  nor  unrestricted,  inasmuch  as  bills 
approved  by  him  were  still  liable  to  disallowance  by  the  crown 
at  any  time.  The  home  government  required  that  all  acts 
passed  by  the  provincial  assemblies  be  sent  over,  within  three 
months  after  their  passage  for  approval  or  disallowance  by  the 
crown; 2  and  although  such  acts  were  in  force  until  actually 
disallowed  by  the  crown,  yet  this  disallowance  might  take 
place  at  any  time  without  any  limitation.  When,  however, 
an  act  was  once  confirmed  by  the  crown,  it  could  not  be  re- 
pealed except  in  the  regular  course  of  legislation. 

In  the  second  place,  the  governor  was  restricted  in  his  right 
of  assent  to  legislation,   in  that  there  were  certain   kinds   of 

human  treatment  of  servants  and  slaves ;  for  the  enforcement  of  the  mar- 
riage discipHne  of  the  church  of  England  and  of  military  discipline  ;  and  for 
the  maintenance  of  schools.     See  instructions,  §§  37,  66,  67,  73. 

1  Commission  to  Bernard  of  New  Jersey,  1758,  §  il;  to  Allen  of  New 
Hampshire,  1692,  p.  59  ;  to  Dobbs  of  North  Carolina,  1761,  p.  527. 

2  Instructions  to  Bernard,  §§  28-30  (cf.  commission,  §§  9,  10)  ;  to  Allen, 
p.  64  (cf.  commission,  p.  58);  to  Dobbs,  1754,  §  37  (cf.  commission,  1761, 
p.  527).  For  the  proprietary  governments,  see  above,  pp.  13  j"<?^.  The  Mas- 
sachusetts charter  of  1691  specified  that  disallowance  must  be  declared  within 
three  years;  otherwise  repeal  might  take  place  only  by  act  of  assembly. 
This  provision  was  sometimes  evaded  by  the  practice  of  not  beginning  to 
count  the  three  years  until  the  time  when  the  bills  were  actually  laid  before 
the  Privy  Council.  They  were  often  withheld  by  the  Board  of  Trade 
{^Massachusetts  Province  Laws,  i.  486,  notes).  Acts  of  the  Pennsylvania 
assembly  might  be  disallowed  within  six  months  of  their  delivery  to  the 
Privy  Council  (Chalmers,  Opinions,  336). 


RIGHT  TO  APPROVE   OR    VETO  LEGISLATION.      1 63 

bills  that  he  was  forbidden  to  approve,  a  precaution  intended 
in  particular  to  protect  imperial  or  British  interests  against 
injurious  local  legislation.  He  was  not,  for  example,  to  al- 
low the  final  enactment  of  bills  for  the  issue  of  paper  money, 
or  to  approve  acts  imposing  discriminating  duties  on  British 
ships  or  manufactures.  1  Some  of  these  acts  might  be  passed 
with  the  so-called  "suspending  clause,"  by  which  execution 
was  suspended  until  the  royal  consent  could  be  given;  but 
others  were  forbidden  absolutely.  Sometimes  a  penalty  was 
annexed;  that  is,  the  governor  was  forbidden  to  pass  particular 
acts  on  pain  of  the  royal  displeasure  and  of  recall  from  his 
province.^ 

These  restrictions,  however,  were  much  more  easily  imposed 
than  enforced.  The  colonists  generally  believed  that  they 
were  unreasonable,  that  they  were  infringements  of  the  in- 
herent legislative  independence  of  the  assemblies,  and  conse- 
quently they  usually  resisted  instructions  of  this  kind.  Thomas 
Pownall,  who  was  certainly  entitled  to  speak  with  some  author- 
ity, declared :  "  In  some  cases  of  emergency,  and  in  the  cases 
of  the  concerns  of  individuals,  the  instruction  has  been  sub- 
mitted to,  but  the  principle  never.  "^  The  instructions  pro- 
hibiting the  issue  of  paper  money,  or,  in  the  proprietary 
colonies,  those  forbidding  the  taxation  of  proprietary  estates 
presented  peculiar  difficulties.  If,  as  sometimes  happened,  an 
assembly  absolutely  refused,  unless  such  acts  were  passed,  to 
appropriate  military  supplies  urgently  needed  for  the  conduct 
of  the  war,  what  was  the  governor  to  do.^     It  was  almost  in- 

1  Instructions  to  Bernard,  §§  22,  25.  Other  instructions  forbade  the 
governor  to  pass,  without  a  suspending  clause,  statutes  repealing  laws  then 
in  force.  He  was  to  pass  no  private  acts  without  a  saving  of  the  queen's 
rights  and  those  of  other  persons,  and  no  temporary  acts  unless  for  dis- 
tinctly temporary  ends.  See  Ibid.,  §§  14,  15,  17.  Cf.  also  §§  16,  20,  21, 
23,  26. 

2  See  e.  g.  the  instruction  in  regard  to  paper  money,  New  Jersey  Docu- 
ments, vi.  95-96.     Cf.  instructions  to  Bernard,  §  22. 

3  Pownall,  Administration  of  the  Colonies,  39-47.  Cf.  Votes  of  Pen7i- 
sylvania,  iv.  571  :  the  assembly,  in  1756,  resolved  that  the  deputy-governor 
"  has,  or  ought  to  have,  full  Powers  to  give  his  Assent  to  all  such  Bills  as 
we  have  an  undoubted  Right  to  offer." 


1 64    THE  GOVERNOR'S  POWER  OVER  THE  ASSEMBLY. 

evitable  that  he  should  do  what  in  the  majority  of  cases  he 
actually  did,  that  is,  yield  to  the  pressure  thus  put  upon  him. 

The  assemblies  soon  learned  to  make  the  most  of  these  diffi- 
culties and  to  increase  them  by  various  expedients,  one  of 
which  was  the  practice,  pursued  in  direct  defiance  of  the  royal 
instructions,  of  inserting  items  entirely  foreign  to  the  main 
body  of  the  bill,  of  attaching  legislative  riders  to  bills  ap- 
propriating money.  Thus  in  an  act  for  the  inspection  of 
tobacco  the  Maryland  assembly  inserted  sections  limiting 
officers'  fees;i  and  in  the  supply  bill  of  1759  the  North 
Carolina  assembly  inserted  a  provision  for  the  appointment 
of  an  agent.  2 

Another  device  was  that  of  coupling  the  supply  bill  with 
some  other  act  desired  by  the  assembly,  and  refusing  to  pass 
the  one  till  the  other  had  received  the  governor's  assent. 
Thus,  the  North  Carolina  assembly  of  1760  refused  to  pass  the 
aid  bill  until  certain  other  measures  were  approved  by  the 
governor.^  In  171 5  Governor  Hunter  of  New  York  wrote  that 
the  revenue  act  had  been  passed  in  return  for  his  assent  to  the 
naturalization  act.^  Again,  in  1741,  the  assembly  of  the  same 
province  resolved  that  it  would  not  raise  any  support  for  the 
government  unless  the  governor  first  assented  to  all  the  bills 
that  it  had  sent  or  should  send  up  to  him.^  In  1759  the  gover- 
nor of  New  Hampshire  presented  to  the  House  an  additional 
instruction,  directing  the  assembly  to  settle  salaries  on  the 
judiciary;  whereupon  the  House  replied  that  it  would  settle 
suitable  salaries  on  the  justices  when  the  province  was  divided 
into  three  counties,  and  not  before. «  Furthermore,  the  as- 
sembly, through  its  control  of  the  governor's  salary,  was  able 
to  appeal  to  more  selfish  motives. 

Under  these  circumstances,  what  wonder  is  it  that  instruc- 
tions were  constantly  violated?  That  they  were  so  violated 
is  proved  by  abundant  evidence.     In  1749  Governor  Johnston 

1  Bacon,  Laws,  1763,  ch.  18. 

2  N'orth  Carolina  Records,  vi.  34.  ^  Ibid. ,  402  seg. 
4  New  York  Documents,  v.  416. 

6  Morris  Papers,  142. 

«  New  Hampsliire  Provincial  Papers,  vi.  718,  726. 


ROYAL  INSTRUCTIONS   VIOLATED.  1 65 

of  North  Carolina  apologized  for  assenting  to  a  paper-money 
bill,  urging  that  only  in  this  way  could  he  raise  the  necessary 
supplies;  and  the  first  royal  governor  of  South  Carolina  vio- 
lated his  instructions  by  passing  a  similar  act.^  New  Hamp- 
shire also  furnishes  a  striking  illustration  of  the  governor's 
difficult  position.  In  1745,  in  response  to  a  request  from  the 
assembly  asking  the  passage  of  a  bill  for  the  issue  of  paper 
money,  Governor  Wentworth  of  that  province  referred  to  his 
instructions  prohibiting  such  action,  and  refused  to  pass  the 
desired  bill.  He  afterwards  yielded,  on  condition  that  a 
committee  of  the  assembly  should  instruct  its  agent  to  im- 
plore the  crown  to  excuse  his  action. ^ 

These  few  illustrations,  which  might  easily  be  multiplied, 
are  in  accord  with  the  general  testimony  of  the  home  govern- 
ment; indeed,  the  order  requiring  that  laws  should  be  sent  to 
England  for  approval  was  so  often  evaded  that  the  crown  had 
frequently  no  opportunity  whatever  to  pass  upon  the  legisla- 
tion of  a  provincial  assembly.^  It  is  clear,  then,  that  the 
royal  restrictions  upon  the  governor's  power  of  assent  to  pro- 
vincial legislation  were  by  no  means  universally  observed, 
that  they  often  proved  ineffective  against  a  strong  popular 
sentiment. 

1  North  Carolina  Records,  iv.  922 ;  Chalmers,  Revolt,  ii.  97. 

2  N'eiv  Hampshire  Provincial  Papers,  v.  279,  336,  338.  For  other  illus- 
trations, cf.  Ibid.,  vi.  513  seq.j  North  Carolina  Records,  vi.  589-591 ;  N'ew 
Jersey  Documents,  ix.  332;  Pownall,  Administration  of  the  Colonies,  41  seq. 

2  See  the  circular  of  the  Lords  of  Trade  in  1752,  reciting  the  general 
neglect  of  royal  instructions,  New  York  Documents,  vi.  760 ;  see  also 
above,  pp.  (£,  67. 


CHAPTER   IX. 

THE   POWER   OF   THE    ASSEMBLY   OVER  THE    GOVERNOR. 

Two  aspects  of  the  governor's  relation  to  the  legislature 
have  now  been  considered:  first  his  influence  in  the  consti- 
tution of  the  assembly  and  upon  its  individual  members,  and 
secondly  the  part  assigned  him  in  the  direct  work  of  legisla- 
tion. It  is  now  time  to  pass  to  a  consideration  of  the  other 
side,  to  a  study  of  the  control  which  the  assembly  was  able  to 
exercise  over  the  governor  and  of  the  use  which  it  made  of 
that  control  in  its  gradual  assumption  of  executive  powers 
properly  belonging  to  the  governor. 

In  the  first  place,  the  assembly  was  a  check  upon  the  gover- 
nor through  its  very  existence  as  a  critical  body  empowered  to 
inspect  accounts  and  eager  to  detect  abuses  in  the  provincial 
administration;  furthermore,  it  gave  to  the  public  sentiment 
of  the  province  a  constitutional  means  of  expression;  it 
organized  public  sentiment  and  thus  made  it  effective.  The 
value  of  such  influence  is  easily  underrated:  an  assembly 
which  performs  this  function,  even  though  it  be  v/ithout  any 
power  of  legislation  or  without  the  control  of  the  purse,  has 
yet  in  its  hands  a  weapon  against  arbitrary  government  which 
is  not  to  be  despised. 

The  assembly  might  control  the  executive  by  legislation 
directly  limiting  the  governor's  powers,  although  such  legisla- 
tion was  ineffective  unless  it  received  the  governor's  assent. 
It  is  true  that  laws  might  be  enacted  with  the  consent  of  a 
weak  or  short-sighted  governor,  the  repeal  of  which  his  succes- 
sor would  find  it  difficult,  perhaps  impossible,  to  secure;  still, 
in  order  to  be  effective,  this  line  of  attack  required  some 
means  of  forcing  the  governor's  assent. 


THE  SALARY  QUESTION.  iGj 

By  far  the  most  important  check  upon  executive  action  pos- 
sessed by  the  assembly  was  certainly  that  exercised  through 
its  power  over  the  purse.  Inasmuch  as  no  government  can 
maintain  itself  without  money,  it  is  evident  that  a  body 
which  has  the  power  to  grant  or  refuse  supplies  holds  the 
key  to  the  situation.  Such  was  the  case  in  all  the  colonies, 
as  has  been  already  noticed.  No  principle  was  more  firmly 
held  than  this,  that  no  taxation  within  the  province  was  legal 
without  the  consent  of  the  assembly,  and  this  doctrine  came 
more  and  more  to  mean  the  domination  of  the  lower  house  in 
all  financial  legislation. 

Inasmuch  as  the  general  question  of  supply  has  already  been 
treated  somewhat  fully  in  connection  with  the  governor's  finan- 
cial powers,  it  will  be  enough  here  to  state  the  main  conclu- 
sions there  reached.  These  were,  that  in  nearly  all  the  colonies 
even  the  bills  for  the  support  of  the  ordinary  administration  of 
government  were  temporary,  often  indeed  for  a  space  of  only 
one  year;  that  even  in  those  colonies  in  which  there  was  a 
permanent  civil  list  it  was  constantly  necessary  to  make 
demands  for  other  purposes;  and  that  these  demands  were 
often,  as  in  time  of  war,  of  the  most  urgent  kind.  In  the  last 
chapter  was  seen  something  of  the  way  in  which  this  power  of 
granting  supplies  was  used  by  the  assemblies. 

There  is  one  phase  of  the  general  subject  regarding  the 
assembly's  control  of  the  purse  which  requires  a  special  treat- 
ment, namely,  that  which  may  for  convenience  be  called  the 
salary  question.  A  consideration  of  this  topic  involves,  in 
the  first  place,  a  study  of  the  process  by  which  temporary 
and  even  annual  salary  grants  became  established  in  most  of 
the  colonies,  with  some  consideration  of  the  arguments 
advanced  on  both  sides  of  the  controversy.  In  the  second 
place,   the  effect  of  the  practice  will  be  noticed. 

The  crown  very  early  adopted  the  policy  of  throwing  the 
support  of  the  provincial  governments,  including  the  granting 
of  official  salaries,  upon  the  provincial  assemblies.  Until  the 
institution  of  the  royal  government  in  Georgia,  there  was  but 
one  government,  royal  or  proprietary,  —  that  of  North  Carolina, 
—  in  which  the  civil  list  was  not  provided  for  by  either  tem- 


1 68      POWER  OF  THE  ASSEMBLY  OVER  THE  GOVERNOR. 

porary  or  permanent  acts  of  assembly.^  It  soon  became  clear, 
however,  that,  if  salaries  were  to  be  granted  by  the  assembly, 
this  body  must  in  the  long  run  control  the  amount  of  those 
salaries,  and  must  even  have  the  power  to  withhold  them  if 
it  should  see  fit.  This  was  a  dangerous  situation  from  the 
standpoint  of  the  home  government,  which  soon  awoke  to  an 
appreciation  of  the  fact  that,  with  a  governor  dependent  for 
his  support  upon  the  temporary  grants  of  the  assembly,  the 
crown  would  lose  one  very  strong  hold  upon  the  colonies.  In 
two  provinces,  Maryland  and  Virginia,  the  issue  was  decided 
very  early,  in  favor  of  the  proprietor  and  the  crown  respec- 
tively, by  the  settlement  of  definite  funds  for  this  purpose. ^ 
Elsewhere  the  result  was  very  different,  though  the  same 
demand  was  made  in  all  the  other  colonies. 

By  the  earlier  instructions  it  was  required  of  all  the  assem- 
blies that  no  money  should  be  granted  to  the  governor  directly, 
but  that  the  grant  should  be  made  to  the  crown  with  the 
request  that  it  be  appropriated  to  the  governor's  use  if  her 
majesty  thought  fit,  otherwise  to  some  other  purpose  stated  in 
the  act  of  grant ;  until  the  royal  pleasure  should  be  known  the 
money  was  to  remain  in  the  hands  of  the  royal  receiver.  ^  The 
governor  was  further  directed  to  recommend  a  permanent 
settlement  of  salaries.*  It  would  appear,  however,  that  the 
requirement  of  royal  assent  to  salary  grants  was  almost  uni- 
versally ignored,  and  that  the  recommendation  to  settle  salaries 
fell  upon  unwilling  ears.  In  1703  the  crown  therefore  found 
it  necessary  to  issue  special  instructions  on  this  subject, 
reciting  the  evil  effects  of  temporary  grants  in  the  colonies 
and  urging  the  necessity  of  fixed  salaries;  the  assembly  was 
called  upon  to  settle  a  salary  upon  the  governor  without  limi- 
tation of  time;  and,  when  that  was  once  done,  no  governor  was 
to   accept  a  present  from  the   assembly  on  pain  of  the  royal 

1  See  above,  p.  59.  ^  Ibid. 

3  Instructions  to  Allen  of  New  Hampshire,  1692,  p.  ()i\  to  Cornbury  of 
New  Jersey,  1702,  §  21. 

4  Instructions  to  Cornbury,  §  22.  For  permission  formally  given  to  Lord 
Bellomont  in  Massachusetts  to  receive  ;^iooo,  see  Massachusetts  Frovitice 
Laws,  i.  419. 


TEMPORARY  GRANTS  IN  NEW   YORK.  1 69 

displeasure  and  of  recall  from  his  province. ^  Some  other  in- 
structions even  went  so  far  as  to  insist  that  the  governor  should 
accept  nothing  less  than  a  permanent  settlement. 2 

These  demands  were  easily  made ;  but  how  were  they  received 
by  the  assemblies.?  This  question,  involving  a  consideration 
of  the  general  controversy  that  sprang  up  throughout  the 
colonies,  may  perhaps  be  studied  to  best  advantage  by  follow- 
ing the  course  of  the  contest  in  the  provinces  of  New  York  and 
Massachusetts. 

In  New  York  the  policy  of  making  temporary  salary  grants 
appears  plainly  as  early  as  1707.  An  interesting  letter  of  that 
year  pointed  out  that  the  revenue  of  the  province  was  to  expire 
in  1709  and  that  although  some  of  the  opposition  were  resolved 
not  to  renew  it,  yet  a  more  far-sighted  party  proposed  to  make 
grants,  though  only  from  year  to  year  in  order  to  insure  the 
dependence  of  the  governor  upon  the  assembly.  Governor 
Hunter  then  appealed  to  the  crown  to  settle  a  salary  upon 
the  governor,  and  in  1711  the  Board  of  Trade  went  so  far  as  to 
recommend,  but  without  success,  that  a  parliamentary  revenue 
be  established  in  New  York.^  Then  followed  a  succession  of 
grants  for  fixed  terms  of  years;*  but  finally  the  House  re- 
solved to  grant  revenue  for  one  year  only,  and  from  that  time 
the  government  had  to  put  up  with  annual  grants. ^  The 
crown  still  persisted  in  its  demands,  but  without  success: 
the  assembly  declared  that  it  would  never  give  more  than  tem- 
porary support.*^  When  in  1755  these  repeated  demands  met 
with  another  determined  refusal,  the  Board  of  Trade  appeared 
at  last  to  recognize  the  hopelessness  of  its  task,  declaring  that 
it  was  advisable  to  allow  the  governor  to  accept  temporary 

1  New  Hampshire  Provincial  Papers,  iii.  251 ;   cf.  New  York  Docu- 
ments, iv.  1040. 

2  See  e.  g.  Hutchinson,  History  of  Massachusetts,  ii.  301  seq.,  333  seq. 
Cf.  New  Jersey  Dcctiments,  iii.  99;  Massachusetts  Province  Laws,  ii.  633. 

3  New  Jersey  Documents,  iii.  238;  Chalmers,  Revolt,  i.  365-366. 

*  New  York  Journal  of  Assembly,  i.  375,  448,  580,  585,  646;  New  York 
Documents,  v.  S77-8S2. 

^  New  York  Jotirnal  of  Assembly,  i.  700,  734. 
®  Chalmers,  Revolt,  ii.  315-316. 


I/O      POWER  OF  THE  ASSEMBLY  OVER  THE  GOVERNOR. 

grants,  and,  though  it  held  the  refusal  of  the  assembly  to  be 
unwarrantable,  instructing  the  governor  not  to  press  the  mat- 
ter. ^  Clearly  this  step  was  hardly  less  than  an  uncondi- 
tional surrender. 

In  Massachusetts,  as  has  already  been  noted,  the  issue  was 
very  early  defined.  According  to  Chalmers,  there  was  in  this 
province  a  very  considerable  party  composed  of  those  who 
were  dissatisfied  with  the  new  charter,  and  who  hoped  to  find 
some  compensation  in  a  policy  of  temporary  salary  grants. ^ 
Under  the  first  two  governors,  Phips  and  Bellomont,  these 
temporary  grants,  or  presents,  were  all  that  the  assembly  could 
be  induced  to  vote.^  In  1703  came  the  additional  instruction 
already  cited,  calling  upon  the  assembly  to  grant  a  settled 
revenue,  in  reply  to  which  Governor  Dudley  wrote  that  for  the 
present  nothing  could  be  done.^  Again,  in  1705,  the  General 
Court  was  urged  to  make  a  permanent  settlement;  but  the 
House  in  its  reply  argued  that,  since  the  ability  of  the 
province  varied  at  different  times,  it  was  not  expedient  that 
salaries  should  be  permanently  fixed.  ^ 

The  efforts  of  Dudley's  successor.  Governor  Shute,  met 
with  no  better  success.  In  despair  of  accomplishing  any 
result  with  the  assembly,  he  recurred  to  the  idea  previously 
acted  upon  by  Governor  Hunter  of  New  York,  and  petitioned 
the  king  to  settle  a  permanent  salary  upon  the  present  gov- 
ernor and  upon  all  succeeding  governors  in  New  England.^ 
The  Board  of  Trade  reported  that  a  salary  ought  to  be  settled 
and  paid  by  the  crown  to  the  governor  until  the  people  of  New 
England  could  be  induced  to  make  permanent  grants ;  but  this 
recommendation  was  not  adopted,  and  Governor  Shute  was 
again  instructed  to  recommend  in  strong  terms  the  settlement 
of  a  fixed  salary.'^ 

1  Chalmers,  Revolt,  ii.  318-320;  New  York  Documents,  vii.  32,  39. 

2  Ibid.,  i.  234. 

3  Ibid.,  236.     C£.  Massachusetts  Province  Laws,  i.   109,  174,  394,  419, 

437- 

4  Chalmers,  Revolt,  i.  330. 

5  Hutchinson,  History  of  Massachusetts,  ii.  137,  139. 

«  Townshend  Papers,  272.  '  Ibid.,  273. 


THE   CONTROVERSY  IN  MASSACHUSETTS.  171 

The  crisis  of  the  struggle  came  under  Shute's  successor, 
Governor  Burnet,  who  was  instructed  to  insist  on  a  permanent 
settlement,  and  who  declared  his  determination  to  adhere 
strictly  to  his  instructions.^  Both  parties  in  the  struggle  were 
now  equally  determined  to  hold  their  ground,  and  both  stated 
their  positions  with  perfect  definiteness.  The  governor  pointed 
to  the  precedent  of  the  British  constitution,  with  its  careful 
provisions  for  the  independence  of  each  department  of  the 
State,  calling  attention  especially  to  that  one  which  secured 
the  independence  of  the  crown  by  a  permanent  civil  list.  He 
urged  that  the  dependence  of  the  executive  was  the  weak  point 
of  the  colonial  constitution,  and  that  the  remedy  lay  in  placing 
the  office  on  an  independent  footing,  claiming  that  the  avowed 
purpose  of  keeping  the  governor  dependent  upon  the  assembly 
by  means  of  temporary  salary  grants  was  not  honorable,  inas- 
much as  such  a  course  prevented  him  from  acting  freely  and 
according  to  his  own  judgment  upon  matters  of  legislation 
coming  before  him.  As  evidence  that  this  was  the  real  inten- 
tion of  the  House  in  refusing  permanent  grants,  he  reminded 
it  that  it  had  often  kept  back  the  governor's  allowance  until 
other  bills  had  been  approved.^ 

The  popular  argument,  on  the  other  hand,  is  best  stated  in 
a  message  of  the  House  in  August,  1728.^  As  against  the 
governor's  reference  to  the  British  constitution,  the  Represent- 
atives urged  that  that  argument  could  not  be  regarded  as  con- 
clusive, claiming  furthermore,  that  even  on  the  analogy  of  the 
British  constitution  no  part  of  the  government  ought  to  be 
wholly  independent,  since  it  was  only  by  mutual  dependence 
that  the  proper  balance  could  be  preserved.  They  called  atten- 
tion to  the  fact  that,  although  the  governor  was  dependent 
on  the  assembly  for  his  salary,  the  assembly  was  in  many  ways 
dependent  on  the  governor.  In  reply  to  the  governor's  sug- 
gestion that  the  temporary  salary  granted  to  the  governor,  in 
contrast  with  the   permanent   provision   made  by  Parliament 

^  Hutchinson,  History  of  Massachtisetts,  ii.  301  seq. 

2  Speech  and  messages  of  Governor  Burnet,  in  House  Journal,  1728, 
July  24,  August  9,  September  3. 

3  Message  of  the  House,  August  31. 


1/2      POWER  OF  THE  ASSEMBLY  OVER  THE  GOVERNOR. 

for  the  support  of  the  crown,  showed  a  lack  of  proper  confi- 
dence in  the  governor,  they  urged,  while  maintaining  that 
their  policy  implied  no  lack  of  confidence,  that  the  governor's 
tenure  was  too  uncertain  to  give  him  any  strong  interest  in 
the  prosperity  of  the  province  such  as  the  king  had  in  the 
mother  country.  In  another  resolution  the  House  laid  down 
the  same  principle,  declaring  that,  after  a  salary  was  settled, 
the  governor's  particular  interest  would  be  very  little  affected 
by  serving  or  neglecting  the  interest  of  the  people.  ^  This 
one  statement  contains  the  gist  of  the  whole  controversy,  giv- 
ing essentially  the  argument  of  the  assembly  and  indicating 
the  argument  of  the  crown. 

The  two  positions  were  now  frankly  stated,  and  they  were 
irreconcilable.  In  the  meantime  the  assembly  had  all  the 
advantage  on  its  side,  insisting  that  the  governor  should  take 
a  temporary  salary  or  none  at  all.  Burnet  maintained  a  gal- 
lant and  honorable  but  hopeless  struggle  until  the  time  of  his 
death,  constantly  refusing,  at  great  personal  sacrifice,  the  most 
liberal  propositions  if  only  the  principle  were  conceded. ^ 

It  would  seem  that  by  this  time  the  hopelessness  of  attempt- 
ing to  force  the  royal  policy  upon  the  assembly  must  have 
been  clear;  but  the  instructions  to  the  next  governor  give  no 
evidence  that  the  home  government  was  inclined  to  yield. 
Nevertheless,  the  contest  was  practically  over.  Burnet's  suc- 
cessor. Belcher,  was  obliged  at  first  to  get  special  leave  from 
the  crown  to  assent  to  particular  grants,  and  finally  to  obtain 
a  general  permission  to  accept  temporary  support,^  The  Board 
of  Trade,  though  it  recommended  this  surrender,  urged  that 
it  would  be  better  for  the  crown  to  establish  a  standing  salary; 
but  again  its  recommendation  failed  of  any  practical  results. 
Shirley,  who  succeeded  Belcher,  was  directed  to  recommend  a 
permanent   settlement,  but,  if  that  could  not  be  secured,   to 

1  Address  of  the  House  of  Representatives,  cited  in  Hutchinson,  History 
of  Massachusetts,  ii.  319. 

2  Townshatd  Papers,  273  seq. 

8  Hutchinson,  History  of  Massachusetts,  ii.  333,  338.  Massachusetts 
Province  Laws,  ii.  632-635  j  Chalmers,  Revolt,  ii.  139;  Townshend  Papers, 
274  seq. 


EFFECT  OF  TEMPORARY  GRANTS.  1 73 

accept   anrual    grants.  ^     Thus    in    Massachusetts,  as  in  New 
York,  the  contest  ended  in  the  victory  of  the  assembly. 

The  struggle  in  the  other  provinces  presents  no  peculiar 
features,  unless  in  the  case  of  New  Hampshire,  whose  assembly 
was  several  times  induced  to  settle  a  salary  upon  the  governor 
during  his  term  of  service.  Even  this  measure  of  success  was 
finally  lost,  and  New  Hampshire  followed  the  example  of  her 
neighbors  in  making  annual  grants. ^ 

There  can  be  no  doubt  that  the  House  used  its  power  to 
extort  legislation  from  the  governor  even  in  violation  of  his  in- 
structions, as  a  few  examples  will  plainly  show.  For  example, 
Clarke  of  New  York  was  charged  with  having  passed  the  trien- 
nial act  in  return  for  his  salary,  which  was  not  always  voted 
as  a  matter  of  course.^  Again  about  1765  the  South  Carolina 
assembly,  irritated  by  a  real  or  supposed  breach  of  its  privi- 
leges, withheld  the  governor's  salary  altogether;*  and  at  an 
even  earlier  date  the  council  of  the  same  province  had  declared 
that  the  acceptance  of  temporary  grants  by  the  governor  was 
"the  great  bane  "  in  the  province.^  In  1721  the  Massachusetts 
House  resolved  that  it  would  not  consider  grants  and  allow- 
ances until  the  governor  had  passed  upon  the  acts  of  that 
session.^  In  1727,  when  a  bill  for  the  emission  of  paper 
money,  presented  by  the  House,  was  vetoed  by  the  governor 
on  the  ground  that  it  was  contrary  to  his  instructions,  the 
House  again  withheld  salaries;  whereupon  a  new  bill  of 
similar  purport  sent  up  to  the  governor  received  his  approval.^ 
Lewis  Morris,  while  president  of  the  New  Jersey  council, 
wrote:  "The  rendring  governors  and  all  other  officers  intirely 
dependant  on  the  people  is  the  generall  inclination  and  en- 
deavour of  all  the  plantations  in  America,  and  nowhere  pur- 
sued with  more    Steadinesse   and    less  decency  than  in  New 

1  Massachusetts  Province  Laws,  iii.  450. 

2  New  Hampshire  Provincial  Papers,  iii.  260,  308,  iv.  543,  550,  760,  vi. 
674,  (^^6,  696,  716,  vii.  179,  227. 

8  New  York  Journal  of  Assembly,  i.  735;  Chalmers,  Revolt,  ii.  149-150. 

*  South  Carolina  Historical  Society,  Collections,  ii.  189. 

*  Ibid.,  i.  299. 

«  Hutchinson,  History  of  Massachusetts,  ii.  230. 
'  Ibid.,  296. 


174      POWER  OF  THE  ASSEMBLY  OVER  THE  GOVERNOR. 

Jersie."^  Morris  himself  afterwards  became  governor,  and 
confirmed  his  previous  statement  by  his  own  experience.  ^ 

Nowhere,  however,  was  the  policy  of  keeping  the  governor 
under  control  by  temporary  grants,  of  granting  money  in 
exchange  for  legislation,  more  frankly  and  more  cynically 
avowed  than  in  Pennsylvania.  In  1709  the  assembly  declared 
that  the  duty  of  supporting  the  government  was  grounded 
upon  the  "condition  precedent"  that  grievances  should  be 
satisfied; 3  and  the  governor  was  informed  that  the  House  had 
voted  him  two  hundred  pounds,  and  that  the  speaker  would 
present  him  a  bill  for  that  amount  when  he  had  passed  the 
acts  referred  to  him.*  On  another  occasion  the  assembly 
thanked  the  governor  for  passing  certain  bills,  and  then  gave 
him  an  order  on  the  treasurer  for  his  salary.^  Under  Gover- 
nor Keith  the  principle  of  bargain  and  sale  seems  to  have  been 
carried  to  an  extreme  point;  indeed,  so  largely  a  matter  of 
course  did  this  system  become  that  the  assembly  in  1744, 
in  giving  Governor  Thomas  his  annual  salary  at  one  time 
instead  of  granting  it  as  usual  in  two  instalments,  alluded  to 
its  action  as  a  special  "  Mark  of  Confidence."  ^ 

Another  notorious  offender  in  this  respect  was  Governor 
Denny.  In  1759,  in  violation  of  his  instructions,  he  signed 
an  act  for  the  issue  of  bills  of  credit.  The  councillors  in  their 
formal  protest  insinuated  improper  motives,  and  immediately 
after  his  approval  of  the  bill  he  was  presented  by  the  speaker 
with  an  order  on  the  treasurer  for  one  thousand  pounds.  In 
the  following  year  the  proprietary  protested  against  several 
acts  passed  by  Denny,  for  each  of  which,  according  to  Chalmers, 
he  had  received  a  distinct  sum  from  the  delegates,  with  an 
"indemnification"   against  the  forfeiture  of  his  bond.^     The 

1  New  Jersey  Documents,  v.  315. 

2  For  the  New  Jersey  practice,  see  Ibid.,  vi.  259,  421,  vii.  251,  xiv.  177  ; 
Morris  Papers,   154. 

8  Proud,  History  of  Pennsylvania,  ii.  36-37. 
^  Ibid.,  32-33;  Pennsylvania  Records,  ii.  492-493. 
^  Pennsylvania  Records,  iii.  174. 

s  Ibid.,  iv.  688.  Cf.  Historical  Review  of  the  Constitution  and  Govern- 
jnent  of  Pennsylvania  (1759),  72-73- 

'  Pennsylvania  Records,  viii.  357-362 ;  Chalmers,  Revolt,  ii.  344.     See 


''THE  PURCHASE   OF  GOOD  LAWS."  175 

demoralizing  influence  exerted  upon  the  public  conscience  by 
such  practices  is  well  illustrated  by  the  cynical  declarations  in 
a  publication  sanctioned  by  no  less  distinguished  a  patriot  than 
Benjamin  Franklin.  "  Every  proprietary  Governor,"  it  was  said, 
"has  two  Masters;  one  who  gives  him  his  Commission,  and 
one  who  gives  him  his  Pay,"  adding,  "the  Subjects  Money  is 
never  so  well  disposed  of  as  in  the  Maintenance  of  Order  and 
Tranquility,  and  the  Purchase  of  good  Laws. "^ 

It  is  easy  to  see  that  this  method  of  controlling  the  execu- 
tive was  in  many  respects  thoroughly  vicious.  It  proved  the 
danger  of  having  an  executive  dependent  for  support  "upon 
the  temporary  and  arbitrary  will  of  the  legislature,"  inasmuch 
as  this  body  often  used  its  power  improperly;  and  it  gave  rise 
to  constant  bargaining  between  governor  and  assembly,  often 
on  terms  dishonorable  to  both.  Nevertheless,  the  force  of  the 
popular  argument,  as  stated  by  men  like  Franklin,  cannot  be 
denied.  Here,  it  was  said,  were  strangers,  with  no  permanent 
stake  in  the  province  which  they  were  sent  to  govern,  often 
men  of  vicious  character  or  mercenary  motives,  with  little 
sense  of  personal  responsibility,  and  officially  accountable 
only  to  a  distant  authority  across  the  sea:  hence,  if  there  was 
to  be  any  effective  popular  control  of  the  executive,  it  must 
be  exercised  by  making  the  governor  feel  his  dependence  for 
support  upon  the  assembly. ^ 

It  is  worth  noting  that  the  men  of  the  constitutional  period, 
who  had  seen  the  working  of  the  system  in  the  colonies,  even 
extreme  radicals  like  Jefferson,  were  able  to  see  that,  although 
the  method  was  perhaps  inevitable  under  the  circumstances  of 
the  colonial  era,  it  was  yet  inherently  vicious;  they  saw  that 
such  a  policy  could  have  no  justification  in  an  elective  system 
in  which  the  executive,  just  as  truly  as  the  legislature,  was 
the  representative  of  the  people.  In  Jefferson's  draft  of  a 
constitution  for  Virginia  there  was  a  provision  that  the  gover- 

also  the  statement  of  Governor  Sharpe  tending  to  support  the  charge  made 
by  Chalmers,  Marylaiid  Archives,  ix.  351. 

^  Historical  Review  of  the  Constitution  and  Government  of  Pennsyl- 
vania (i759)»  72,  73- 

2  Almon,  Prior  Doctwients,  229. 


1/6    POWER  OF  THE  ASSEMBLY  OVER  THE  GOVERNOR. 

nor's  salary  should  be  unchanged  during  his  whole  term  of 
office ;  ^  and  the  same  principle  was  laid  down  by  the  framers 
of  the  constitution  of  the  United  States,  in  the  clause  provid- 
ing that  the  salary  of  the  President  is  not  to  be  increased  or 
diminished  during  his  term  of  office  and  that  during  that  period 
he  is  not  to  receive  "  any  other  emoluments  from  the  United 
States,  or  any  of  them."^ 

^  Jefferson,  Writings  (^Ford's  editio?i),  iii.  326. 
2  Constitution,  Art.  II.,  §  i,  H  7. 


CHAPTER  X, 

THE  ENCROACHMENTS  OF  THE  ASSEMBLY  UPON  THE 

EXECUTIVE. 

It  has  been  seen  that,  although  on  the  one  side  the  governor 
had  in  various  ways  considerable  power  over  the  assembly,  the 
latter  on  the  other  hand  had  a  still  more  effective  weapon 
in  its  control  of  the  purse.  At  first  the  assembly  used  this 
power  merely  to  check  abuse  of  executive  functions,  but  it  did 
not  stop  there :  its  next  step  was  to  deprive  the  governor  even 
of  the  actual  executive  power  itself  in  certain  important 
cases. 

There  can  be  no  doubt  that  it  is  the  tendency  of  the  legisla- 
ture, when  once  firmly  established,  to  encroach  upon  the  proper 
functions  of  the  executive,  especially  by  minute  supervision 
and  control;  and  that  in  the  case  of  the  colonial  assemblies 
this  tendency  was  greatly  strengthened  by  the  misconduct  of 
governors.  1  The  corruption  in  the  provincial  governments 
also  served  to  call  the  attention  of  the  people  to  the  usages  in 
the  charter  colonies  of  New  England,  where  the  executive  as 
well  as  the  legislature  was  representative,  and  where  a  very 
important  part  of  the  executive  business  was  performed  by 
committees  of  the  assembly.  It  is  true  that  much  of  the  New 
England  republican  system  was  in  the  nature  of  the  case 
impracticable  in  the  provincial  governments,  since  in  these 
colonies  the  governor  himself  could  not  be  got  rid  of,  but  had 
to  be  accepted  as  the  agent  of  the  crown,  and  as  such  con- 
stantly in  opposition  to  local  interests.  The  popular  policy 
was,  therefore,  first  to  insure  as  far  as  possible  the  governor's 

^  Pownall,  Administration  of  the  Colonies,  50;  New  York  Journal  of 
Assembly,  i.  1 70-1 71. 

12 


178  ENCROACHMENTS  OF  THE  ASSEMBLY. 

dependence  upon  the  assembly  by  the  system  of  temporary 
grants,  and  secondly  to  weaken  the  executive  as  far  as  possible 
by  the  transference  of  many  of  its  proper  functions  to  the 
assembly. 

Of  the  reality  of  this  New  England  influence  upon  the  other 
colonies  there  can  be  no  doubt.  New  Englanders  very  early 
pushed  out  into  the  other  colonies.  The  New  England  ele- 
ment in  Long  Island  made  itself  felt  in  the  earliest  politics  of 
New  York;  and  to  other  provinces  also  these  transplanted  New 
Englanders  were  likely  to  carry  with  them  the  political  spirit 
of  the  Puritans.  It  seems  to  have  been  very  early  recognized 
that  these  settlers  could  best  be  attracted  by  liberal  political 
institutions.  There  is  evidence,  too,  that  the  practice  of  one 
colony  was  occasionally  cited  by  the  assembly  of  another.^ 
In  the  New  Hampshire  records  of  1755  are  recorded  the  votes 
of  the  Massachusetts  General  Court  appointing  a  committee 
of  war.  2  In  1743  Governor  Morris  of  New  Jersey  wrote  of  the 
members  of  the  assembly:  "They  are  gen"^  so  fond  of  the 
example  of  the  parliament  of  1641  &  that  of  their  neighbours 
in  Pensilvania  &  New  England,  that  until  some  measures  are 
taken  in  England  to  reduce  them  to  propper  limits  I  suspect 
they  will  not  mend  much."^  Governor  Sharpe  said  of  the 
Maryland  assembly  in  1758  that  their  minds  were  "infected 
with  the  Disputes  of  the  Pensilvanians.  "* 

These  are  only  a  few  chance  illustrations,  but  they  leave 
no  room  for  doubt  that  the  constitutional  life  of  the  different 
colonies  was  not  isolated  and  independent,  that  tendencies 
which  made  themselves  felt  in  Massachusetts  or  Pennsylvania 
had  a  very  real  influence  in  New  York  and  Maryland.  By 
the  formation  of  Massachusetts  into  a  royal   government  the 

1  This  comparison  of  practice  in  different  colonies  was  not  confined  to 
the  assemblies.  For  example,  there  is  a  letter  written  by  James  Alexander 
of  New  Jersey  to  Joseph  Murray  of  New  York,  inquiring  as  to  the  custom 
in  other  colonies  in  regard  to  the  governor's  sitting  with  the  council  in  its 
legislative  sessions.  The  query  was  to  be  extended  to  correspondents  in 
Virginia,  South  Carolina,  and  the  West  India  governments.  See  letter  of 
December,  1747,  New  Jersey  Doaunents,  vii.  77-81. 

2  New  Hampshire  Provincial  Papers^  vi.  366. 

8  Morris  Papers^  162.  *  Maryland  Archives,  ix.  177-178. 


NEW  ENGLAND  INFLUENCE.  1/9 

republicanism  of  that  colony  lost  something  of  its  complete- 
ness; but  on  the  other  hand  it  gained  in  influence,  since  now 
for  the  first  time  the  traditions  of  the  old  republican  sys- 
tem had  been  placed  upon  a  substantial  footing  and  received 
legal  recognition  within  a  royal  government.  The  example  of 
Massachusetts  might  now  be  cited  with  greater  force  by  the 
popular  party  in  other  governments;  and  Massachusetts  thus 
became  the  natural  medium  through  which  these  New  Eng- 
land ideas  were  communicated  to  the  other  colonies.  The 
influence  of  Pennsylvania  made  itself  felt  in  a  lesser  degree 
but  in  much  the  same  direction,  since  here  also  under  the 
liberal  charter  of  the  founder,  the  people  and  the  assembly 
had  made  serious  inroads  upon  the  executive  authority  of  the 
governor. 

Among  royalists  the  leadership  in  these  democratic  tenden- 
cies was  very  generally  attributed  to  New  England.  Chalmers 
says  of  the  policy  of  temporary  grants:  "That  profound 
determination  the  New-English  imparted,  with  other  lessons, 
to  every  colony. "  1  Governor  Cornbury  wrote  of  the  preva- 
lence of  republican  ideas  in  New  York  and  New  Jersey, 
especially  in  the  east  end  of  Long  Island,  "where  they  are 
generally  Commonwealths  men."^  Governor  Nicholson  of 
South  Carolina  wrote  in  1724  that  the  "spirit  of  common- 
wealth-maxims, both  in  church  and  state,  increase  here  daily," 
chiefly,  as  he  supposed,  by  the  influence  of  the  New  Eng- 
enders.^ Governor  Cosby  of  New  York,  writing  in  1732, 
said :  "  Y''  example  and  spirit  of  the  Boston  people  begins  to 
spread  amongst  these  Colonys  In  a  most  prodigious  maner."* 

1  Revolt,  i.  224.  2  New  Jersey  Docmnents,  iii.  78. 

8  Chalmers,  Revolt,  W.  99;  South  Carolina  Historical  Society,  Collections, 
i.  283. 

*  New  Jersey  Documents,  v.  321.  Qi.Ibid.,  iii.  283.  An  extreme  royal- 
ist view  of  this  New  England  influence  is  given  by  Chalmers,  who,  speak- 
ing particularly  of  the  colonists  of  North  Carolina  at  the  close  of  the 
seventeenth  century  and  at  the  beginning  of  the  eighteenth,  says  :  "  During 
that  gloomy  period,  New  England  alone  cultivated  her  former  commercial 
connection  with  them  ;  supplying  their  inconsiderable  wants,  and  carrying 
their  tobacco  and  their  corn  without  restraint  wheresoever  interest  directed 
her  traders.     When  the  original  planters  .  .  .  had  engrafted  New-English 


l80  ENCROACHMENTS  OF  THE  ASSEMBLY. 

There  can  thus  be  no  doubt  of  the  reality  of  this  New  Eng- 
land influence  or  of  its  character. 

The  assembly  had  gained  its  power  over  the  governor  chiefly 
through  its  control  of  the  purse :  it  was  therefore  natural  that 
the  first  assumption  of  executive  powers  by  the  assembly 
should  be  in  the  department  of  finance.  The  assembly,  and 
within  the  assembly  the  House  in  particular  as  the  body 
invested  with  the  exclusive  right  of  granting  the  people's 
money,  felt  that  it  had  also  the  right  in  its  representative 
character  to  determine  how  that  money  should  be  spent.  The 
representatives  claimed  the  right  not  merely  to  appropriate 
money  in  general  terms,  but  to  define  narrowly  and  in  detail 
the  uses  to  which  it  was  to  be  put,  holding  that  it  was  their 
right  and  duty  to  provide  all  necessary  safeguards  for  a  proper 
application  of  the  money  to  the  purposes  for  which  it  was  in- 
tended. It  is  clear  that  this  view  might  easily  have  led  to  an 
assumption  of  powers  properly  executive. 

Reference  has  already  been  made  to  the  fact  that  the  gover- 
nor's financial  powers  had  been  brought  within  very  narrow 
limits  by  the  practice  of  appropriation  in  detail,  by  reason  of 
which  he  had  come  to  have  hardly  more  than  the  power  of  an 
accounting  officer,  issuing  his  warrants  in  accordance  with  the 
detailed  appropriations  made  by  the  assembly,  and  having 
very  little  real  discretion.  It  will  now  be  seen  that  even  this 
function  was  in  some  cases  taken  from  him  by  the  assembly, 
though  it  is  hardly  safe  to  say  that  this  transference  was 
general ;  in  fact,  though  there  are  many  illustrations  of  such 
action,  the  practice  was  nevertheless  in  all  probability  usu- 
ally regarded  as  exceptional  and  irregular.  It  is  important  to 
note,  however,  that  this  part  of  the  governor's  prerogative  was 
under  some  circumstances  invaded  in  almost  all  the  colonies. 
In  New  York  at  one  time  the  assembly  appropriated  salaries 
to  be  paid  without  any  warrant  from  the  governor,  though  it 
seems  finally  to  have  retired  from  this  position  and  to  have 

maxims  upon  their  stock  of  native  principles,  sucli  specimens  of  turbulence 
were  given  by  them  to  the  other  provinces,  during  the  reign  of  Anne,  as 
may  be  conceived  but  cannot  be  described  "  (^Revolt,  i.  398-399)- 


ENCROACHMENTS  IN  FINANCE.  l8l 

allowed  salaries  to  be  issued  by  the  governor's  warrant^ 
Governor  Dobbs  of  North  Carolina  complained  that  payments 
were  made  without  his  warrant;  and  even  in  Virginia  Gover- 
nor Dinwiddle  felt  himself  obliged  to  assent  to  a  bill  intrust- 
ing the  disposition  of  funds  to  commissioners.^  In  Pennsylvania 
it  was  a  common  practice  for  the  speaker  to  issue  orders  upon 
the  treasurer  for  the  payment  of  money;  in  the  case  of  the 
governor's  salary  this  was  regularly  done.^ 

The  governor's  power  of  issuing  warrants  was  reduced  to  a 
mere  formality  by  the  requirement  that  money,  even  when 
duly  appropriated,  should  not  be  drawn  out  of  the  treasury 
without  a  special  vote  of  the  assembly.  South  Carolina,  for  ex- 
ample, imposed  this  restriction.^  In  Massachusetts  the  General 
Court  assumed  the  right  of  examining  the  muster  rolls,  pass- 
ing upon  each  item,  and  voting  an  order  on  the  treasurer  for 
its  payment  if  approved.  The  governors  protested  against 
this  practice,  but  the  House  persisted  in  it  for  many  years, 
until  finally  the  crown  instructed  the  governor  not  to  allow 
such  provisions  in  future  acts  of  supply;  whereupon  the 
House,  after  a  vigorous  contest,  yielded  under  protest.^  In 
New  Hampshire  the  assembly  claimed  and  exercised  the  same 
power,  though  it  was  denounced  by  Governor  Wentworth  as  an 
invasion  of  the  prerogative.^ 

Thus  the  assembly  had  in  many  cases  deprived  the  governor 
of  even  that  limited  control  over  provincial  finance  involved 
in  the  requirement  of  his  warrants  for  the  payment  of  public 

^  New  York  Doainie7its,  iv.  1146,  vi.  353,  820-821;  Chalmers,  Revolt, 
ii.  315.  For  practice  in  New  Jersey,  see  New  Jersey  Documents,  ix. 
154-155  ;  Allinson,  Acts  of  Assembly,  ch.  301. 

2  A^orth  Carolina  Records,  vi.  320;  Dmwiddie  Papers,  i.  161. 

8  See  e.g.  Pennsylvania  Records,  ii.  412.  Pownall  notes  the  fact  that 
in  many  colonies  the  governor's  warrant  was  not  always  required:  Admin- 
istration of  the  Colotiies,  52. 

*  Cooper,  Statutes,  iii.  191,  481-484  (acts  of  1722  and  1737). 

^  Massachusetts  Provijice  Laws,  ii.  219-222,  235-236,  278-2S0,  574.  593, 
596,  702  ;  Hutchinson,  History  of  Massachusetts,  ii.  266,  33S.  Cf.  Province 
Laws,  1730-31,  ch.  17,  1733-34,  ch.  7. 

^  New  Hajnpshire  Provincial  Papers,  v.  283,  vi.  343.  For  similar 
action  taken  by  the  New  York  assembly,  see  "  Representation  of  the  Board 
of  Trade,"  1751,  New  York  Dociunents,  vi.  616. 


1 82  ENCROACHMENTS  OF  THE  ASSEMBLY. 

money.  In  other  financial  matters  also  the  House,  either 
directly  or  through  its  committees,  assumed  functions  properly 
executive  in  their  character.  ^ 

From  the  fundamental  assumption  that  the  assembly  as  the 
representative  of  the  people  was  the  constitutional  guardian 
of  the  people's  money,  there  was  only  a  short  step  to  the  claim 
by  that  body  of  the  right  to  appoint  those  officers  who  were 
charged  with  the  collection,  custody,  and  disbursement  of  the 
public  funds.  The  prevailing  doctrine  of  the  colonial  assem- 
blies upon  this  point  is  briefly  summed  up  in  the  follow- 
ing resolutions  passed  in  1753  by  the  assembly  of  Jamaica: 
"  Resolved,  That  it  is  the  inherent  and  undoubted  Right  of 
the  Representatives  of  the  People  to  raise  and  apply  Monies 
for  the  Service  and  Exigencies  of  Government,  and  to  appoint 
such  Person  or  Persons  for  the  receiving  and  issuing  thereof 
as  they  shall  think  proper,  which  Rights  this  House  hath 
exerted,  and  will  always  exert,  in  such  manner  as  they  shall 
judge  most  conducive  to  the  service  of  His  Majesty,  and  the 
Interest  of  His  People.  "^ 

The  most  important  exercise  of  this  assumed  right  was  the 
appointment  by  the  assembly  of  the  provincial  treasurer,  a 
practice  which  prevailed  in  a  majority  of  the  provincial  gov- 
ernments. In  New  Hampshire,  New  Jersey,  and  Georgia  it 
would  seem  that  the  assembly  had  not  succeeded  in  wresting 
from  the  executive  this  appointing  power. ^    In  Maryland,  there 

1  In  New  Hampshire  the  assemblies  appointed  committees  to  farm  out 
the  excise  {Provincial  Papers,  iv.  204,  v.  660).  The  Virginia  assembly  in 
1 70 1  appointed  a  committee  to  oversee  the  building  of  the  Capitol  (Hening, 
Statutes,  iii.  214). 

2  North  Carolina  Records,  v.  758. 

3  See  New  Hampshire  Provincial  Papers,  iv.  6,  533,  vi.  S60.  Governor 
Belcher  of  New  Jersey  in  his  report  gave  an  account  of  the  offices  in  the 
province,  naming  some  which  were  filled  in  a  different  way,  and  adding  that 
all  other  civil  officers  were  appointed  by  the  governor  {New  Jersey  Docu- 
ments viii.  (2)  86).  In  1762  Governor  Hardy  appointed  a  treasurer  for  the 
eastern  division  of  the  province  during  the  royal  pleasure.  In  1774,  on 
Skinner's  resignation,  the  House  undertook  to  nominate  his  successor,  and 
finally  the  same  person  who  had  been  so  nominated  was  appointed  by  the 
governor  and  council  (New  Jersey  Historical  Society,  Proceedings,  v.   59- 


THE  PROVINCIAL    TREASURER.  183 

appears  to  have  been  a  conflict  of  precedents.^  When  the 
assemblies  had  gained  this  power,  it  seems  to  have  been  usual 
to  make  the  appointment  by  formal  act  of  assembly;  some- 
times, however,  it  was  done  by  simple  resolution  of  the  House 
of  Representatives.^ 

Even  when  the  appointment  was  made  by  act  of  assembly 
the  lower  house  clearly  had  the  real  choice;  for  such  a  bill, 
like  all  others  having  to  do  with  the  raising  of  money,  would 
originate  in  the  House,  and  amendments  by  the  council  would 
be  sure  to  meet  with  resistance.  In  North  Carolina  in  1760 
the  council  ventured  to  change  the  name  of  the  treasurer  as 
given  in  the  bill  of  the  House,  and  the  House  agreed  to  make 
the  change  in  this  case,  saving  "the  inherent  right  of  this 
House,  to  nominate  Persons  to  be  appointed  to  the  office  of 
Public  Treasurers. "  3  In  South  Carolina  the  Representatives, 
or  "House  of  Commons,"  as  they  styled  themselves,  at  first 
nominated  the  treasurer,  but  they  were  forced  to  consent  to 
appointment  by  act  of  the  governor,  council,  and  assembly.^ 
In  Virginia  there  was  for  a  time  a  rule  which  kept  the  treas- 
urership  practically  in  the  hands  of  the  House  exclusively; 
this  was  the  provision  that  the  speaker  should  be  ex  officio 
treasurer.^ 

Something  should  be  said  as  to  the  process  by  which  the 
appointment  of  treasurer  came  into  the  hands  of  the  assembly. 
In  Massachusetts  the  charter  itself  gave  a  constitutional  sanc- 

61  ;  New  Jersey  Documents,  ix.  366,  x.  420  note,  xiv.  249-250).  For 
Georgia,  see  Jones,  Colonial  Acts  of  Georgia,  23,  49,  145-146,  157,  166,  168, 
179,  212;  note  the  references  to  "his  majesty's  treasurer."  Cf.  Stokes, 
Constitution  of  the  British  Colotties,  120,  184.  Stokes,  in  his  general  account 
of  the  royal  governments,  was  undoubtedly  thinking  particularly  of  Georgia. 

1  Maryland  Archives,  viii.  352 ;  Votes  and  Proceedings  of  the  Lower 
House,  AjDril  18,  1758.  For  the  opinion  of  Attorney-General  Willes  in  1737, 
who  held  that,  in  spite  of  precedents  for  the  appointment  of  the  treasurer 
by  the  assembly,  the  proprietor  still  had  the  right  of  nomination,  see  Chal- 
mers, Opinions,  179. 

2  See  e.  g.  A'ew  York  Journal  of  Assembly,  1.  197  ;  Votes  of  Pennsyl- 
vania, iv.  271,  490. 

^  North  Carolina  Records,  vi.  508. 
*  Cooper,  Statutes,  ii.  299,  iii.  148. 
5  Hening,  Statutes,  v.  64,  173. 


1 84  ENCROACHMENTS  OF  THE  ASSEMBLY. 

tion  to  the  practice,  by  the  provision  that  all  civil  officers, 
with  the  exception  of  those  connected  with  the  administration 
of  justice,  should  be  appointed  by  the  General  Court. ^  In 
New  York  the  issue  arose  during  Lord  Cornbury's  corrupt 
administration,  when  the  assembly  of  1703  passed  resolutions 
requesting,  in  view  of  previous  misapplication  of  public  money, 
that  some  person  might  be  commissioned  as  treasurer  by  the 
governor,  "for  the  receiving  and  paying  of  such  Monies  now 
intended  to  be  raised  for  the  publick  Use,  as  a  Means  to 
obstruct  the  like  Misapplication  for  the  future."  ^  In  1705 
the  assembly  passed  a  vote  declaring  its  intention  of  ap- 
pointing a  treasurer  "for  receiving  and  paying  the  publick 
Monies  to  be  raised  by  this  House.  "^  By  171 5  the  House  had 
apparently  carried  its  point,  for  in  that  year  Governor  Hunter 
wrote  that  by  the  new  supply  act  the  funds  were  lodged  with 
the  treasurer,  adding  that  "no  Act  could  lodge  them  other- 
wise."^ In  1768  the  matter  had  gone  so  far  that  the  treasurer 
of  that  year  was  invested  with  his  commission  by  the  speaker 
and  gave  bond  to  the  speaker,  a  circumstance  indicating  to 
what  an  extreme  point  had  been  carried  the  conception  of  the 
treasurer  as  peculiarly  an  officer  of  the  lower  house  and 
almost  independent  of  the  crown. ^ 

In  Virginia  the  treasurer  was  regularly  appointed  by  act 
of  assembly  from  the  year  1704  until  1738,  when  the  office 
was  attached  to  the  speakership  of  the  House. ^  This  system 
proved  a  failure,  however,  and  the  treasurer  was  again  appointed 
as  before  by  act  of  assembly,  in  which  the  lower  house  prob- 
ably had  the  right  of  nomination.'  In  South  Carolina,  acts 
were  passed  appointing  receivers  of  public  taxes.  In  1707  it 
was  enacted  that  the  "  Commons  "  should  have  the  right  to 
nominate  the  public  receiver  of  the  province;  and  although 
this  act  was  repealed  by  the  proprietors,  yet  in  1721  it  was 

1  Charter  of  1 691,  in  Poore,  Charters  and  Constitutions,  i.  942. 

2  New  York  Jo2irnal  of  Assembly,  i.  170. 
8  Ibid.,  197. 

4  A^ew  York'Docufnents,  v.  416-417.  ^  Ibid.,  viii.  61. 

«  Hening,  Statutes,  iii.  225,  iv.  135,  150,  433,  v.  64. 
'  Ibid.,  viii.  210,  211. 


THE  TREASURER  AS  LEADER   OF  THE  ASSEMBLY.     1 85 

decreed  that  the  treasurer  should  thereafter  be  appointed  by 
the  general  assembly.  ^  This  appointment  was  made  by  ordi- 
nances, which  like  statutes  required  the  concurrence  of  gov- 
ernor, council,  and  assembly.  The  movements  in  the  other 
provinces  present  no  peculiar  features  which  require  discus- 
sion here.  In  one  colony  at  least,  that  of  North  Carolina,  the 
home  government  made  a  virtue  of  necessity  by  instructing  the 
governor  that,  although  the  appointment  of  treasurers  by  act 
of  assembly  was  irregular,  yet  it  would  be  improper  to  set 
aside  a  usage  of  so  long  standing. ^ 

The  appointment  of  the  treasurer  by  the  assembly  took  the 
control  of  provincial  finance  almost  entirely  out  of  the  gov- 
ernor's hands  and  placed  it  in  those  of  an  officer  who  was 
generally  regarded  as  "solely  and  entirely  a  servant  of  the 
assembly. "  ^  The  treasurer  was  often  a  person  of  considerable 
importance.  In  Virginia,  as  has  been  seen,  the  speaker  was 
for  a  time  treasurer  also,  and  consequently  possessed  great 
influence,  which  he  was  charged  with  using  in  improper 
ways.*  In  173 1  Governor  Burrington  of  North  Carolina  wrote 
that  the  treasurer  Edward  Moseley  was  speaker  and  manager 
of  the  assembly.^  Chalmers  charges  the  treasurer  of  North 
Carolina,  John  Starkey,  with  having,  like  the  Virginia  treas- 
urer, made  a  corrupt  use  of  the  power  he  possessed  over  the 
members  of  the  assembly. 

This  union  of  legislative  leadership  with  financial  admin- 

^  Cooper,  Statutes^  ii.  16,  41,  65,  299,  iii.  148. 

^  For  usage  in  North  Carolina  and  the  other  colonies,  see  North  Caro- 
lina Records,  iii.  291,  299,  302,  iv.  1006,  1020,  vi.  55  (note  the  appointment 
of  a  treasurer  for  life,  vi.  218) ;  Votes  of  Pennsylvania,  i.  88,  117,  iv.  271, 
490;  Proud,  History  of  Peniisylvania,  ii.  60,  218;  Pennsylvania  Archives, 
1st  Series,  iv.  600. 

^  Pownall,  Admitiistration  of  the  Colotties,  52. 

■•  Hening,  Statutes,  viii.  210;  Dinwiddle  Papers,  i.  307,  312;  Chalmers, 
Revolt,  ii.  354. 

5  North  Carolina  Records,  iii.  151,  265. 

6  It  is  not  certain  that  the  charge  was  well  founded.  There  is  a  letter 
of  the  royal  receiver-general,  who  in  asking  a  leave  of  absence  proposed 
Starkey  as  his  substitute,  commending  him  as  a  man  of  unspotted  integrity 
and  honor.  See  Ibid.,  v.  589.  Cf.  Chalmers,  Revolt,  ii.  358-361  ;  also 
North  Carolina  Records,  vi..  Prefatory  Notes,  xxxiii-x.xxiv. 


1 86  ENCROACHMENTS  OF  THE  ASSEMBLY. 

istration  suggests  an  interesting  comparison  with  the  parlia- 
mentary system;  but  the  combination  in  one  person  of  the 
three  functions  of  leader  of  the  House,  speaker,  and  minister 
of  finance  is  perhaps  without  precedent.  If  it  were  profit- 
able to  dwell  upon  what  might  have  been,  it  would  be  inter- 
esting to  consider  how  this  development  might  have  worked 
itself  out  had  it  been  uninterrupted  by  the  Revolution;  not 
improbably  it  might  have  led  ultimately  to  a  modified  form  of 
parliamentary  government. 

The  interference  in  appointments  on  the  part  of  the  assembly 
was  not  confined  to  the  choice  of  treasurer,  but  extended  to  a 
large  number  of  other  offices,  chiefly  those  concerned  with  the 
collection  or  payment  of  public  money.  It  has  been  noticed 
that  in  Massachusetts  the  assembly  had  a  constitutional  right 
to  appoint  administrative  officers,  and  the  example  set  by 
Massachusetts  was  followed  in  nearly  all  the  colonies.  In 
New  York,  collectors,  excise-commissioners,  and  commis- 
sioners for  various  other  purposes  were  appointed  by  act  of 
assembly;  indeed,  it  was  a  standing  ground  of  complaint  on 
the  part  of  the  New  York  governors  that  the  assembly  con- 
stantly assumed  this  right  of  exercising  executive  functions.  ^ 
In  New  Jersey,  during  Queen  Anne's  War,  the  assembly 
passed  an  act  for  raising  three  thousand  pounds,  naming  in 
this  act  two  treasurers,  commissioners  for  managing  the  ex- 
pedition against  Canada,  and  a  commissary. ^  Again,  during 
the  last  French  war  commissioners  were  appointed  by  the 
assembly  to  carry  out  the  provisions  of  the  military  supply 
acts;  but  the  home  government  objected  strongly  to  this  ac- 
tion and  forbade  the  governor's  assent  to  future  acts  of  that 
character.  Governor  Bernard,  however,  failed  to  comply  with 
his  instructions  on  that  point. ^ 

1  New  York  Acts  of  Assembly,  1691-1718,  97;  Laws  of  New  York, 
1691-1773,  chs.  934,  935,  1598;  New  York  Documents,  vi.  285;  Chalmers, 
Revolt,  ii.  315. 

2  New  Jersey  Documettts,  xiii.  415. 

8  Ibid.,  ix.  154,  158,  170.  The  assembly  also  appointed  county  collectors, 
boundary  commissioners,  commissioners  of  river  navigation,  of  roads  and 


APPOINTMENTS  BY  THE  ASSEMBLY.  1 87 

Outside  of  Massachusetts  the  two  provinces  which  carried 
this  policy  to  the  greatest  extreme  were  South  Carolina  and 
Pennsylvania.     In  South  Carolina  the  practice  had  grown  up 
under  the  weak  proprietary  administration  and  had  secured  a 
hold  too  strong  to  be  shaken  off.     Here  in  1721  it  was  enacted 
that  the  treasurer,  comptroller,  powder-receiver,  and  all  other 
civil   officers   paid   out    of    the   public    funds   should   be   ap- 
pointed by  the  assembly.  ^     Among  other  officers  appointed  in 
the  same  way  were  commissioners  for  military  supplies,  Indian 
agents,  and  Indian   commissioners. ^      In   1729  an  effort  was 
made  to  stop  the  practice :  Governor  Johnson  was  directed  not 
to  give  his  assent  to  any  law  for  the  appointment  of  officers, 
and  he  declared  his  intention  of  insisting  on  a  strict  compli- 
ance with  his  instructions.^    The  effort  had  little  effect,  how- 
ever;  for  Johnson's   successor,   James  Glen,    wrote  in  1748: 
"Almost  all  the  places  of  profit  or  of  trust  are  disposed  of  by 
the  General  Assembly.   .   .   .  The  executive  part  of  the  gov- 
ernment is  lodged   in  different  sets  of  Commissioners.   .   .  . 
The  above  officers  and  most  of  the  Commissioners  are  named 
by  the  General  Assembly,  and  are  responsible  to  them  alone. 
.   .   .  Thus  the  people  have  the  whole  of  the  administration  in 
their  hands."* 

In  Pennsylvania  the  assembly  assumed  the  appointment  of 
nearly  all  administrative  officers.  In  passing  an  act  for  any 
purpose  it  was  customary  for  the  assembly  not  only  to  provide 
the  necessary  official  machinery  for  its  enforcement,  but  also 
to  make  the  actual  appointment  of  the  officer.  Thus,  for 
example,  in  the  loan  acts  the  assembly  appointed  trustees  of 
the  loan  office;^  in  an  act  levying  taxes,  special  commis- 
sioners  were  named  to    enforce    its   provisions.^       Naturall}i 

bridges,  and  of  barracks.  See  Allinson,  Acts  ofAssetnbly,  ch.  -jj,  §  6,  ch. 
93,  §  12,  chs.  319,  320,  370,  396,  407,  418,  541. 

^  Cooper,  Statutes,  iii.  148. 

2  Ibid.,  ii.  158,  176,  183,  189,  311,  315,  624,  654,  iv.  4,  9,  14,  45,  52,  154, 
157,  166. 

8  South  Carolina  Historical  Society,  ColIectio7is,  ii.  119,  134. 

*  Ibid.,  303-304;  cf.  Carroll,  Historical  Collections,  ii.   220-221. 
^  Statutes  at  Large  of  Pennsylvania  (1896),  iii.  325,  391. 

*  Ibid.,  ii.  3S9. 


1 88  ENCROACHMENTS  OF  THE  ASSEMBLY. 

therefore  it  became  customary  for  persons  desiring  such  ap- 
pointments to  apply  not  to  the  governor  but  to  the  as- 
sembly; an  example  is  the  petition,  in  1750,  of  R.  Shewell 
of  Philadelphia,  baker,  praying  to  be  appointed  fiour-brander 
for  the  city  and  county  of  Philadelphia.^  In  1757,  after 
the  assembly  had  declared  that  the  nomination  of  Indian 
commissioners  was  its  "settled  right,"  as  it  was  the  right 
of  the  British  House  of  Commons,  the  governor's  message 
objected  only  to  the  choice  of  commissioners  from  the  mem- 
bers of  the  assembly,  not  to  that  body's  exercise  of  the  right 
of  nomination,^  Andrew  Hamilton,  speaker  of  the  assembly, 
on  retiring  from  public  life  in  1739,  made  a  speech  in  which 
he  congratulated  the  province  on  the  fact  that  it  had  no 
ofificers  except  those  who  were  necessary  and  who  earned  their 
salaries,  and  that  these  were  generally  either  elected  by  the 
people  or  appointed  by  their  representatives.^ 

These  are  the  most  striking  cases;  but  in  all  the  colonies 
the  assemblies  had,  to  a  greater  or  less  extent,  assumed  the 
exercise  of  the  appointing  power. 

From  the  administration  of  finance  and  the  appointment 
of  officers,  the  assembly  was  naturally  led  to  encroachments 
upon  another  department  which  may  with  even  greater  pro- 
priety be  regarded  as  the  exclusive  right  of  the  chief  execu- 
tive. If  there  is  any  function  which  especially  requires  a 
concentration  of  authority  in  a  single  head,  it  is  certainly  the 
command  of  military  forces  and  the  conduct  of  military  opera- 
tions.    Yet  even  into  this  field  the  assembly  forced  its  way, 

1   Votes  of  Pennsylvania,  iv.  143.  ^  Ibid.,  747,  750. 

8  Proud,  History  of  Pennsylvania,  ii.  217.  For  the  practice  in  the  other 
colonies,  see  Chalmers,  Opinions,  361 ;  New  Hampshire  Provincial  Papers, 
iii.  761,  V.  177,  191,  207,  220,  vi.  140,  232;  Jones,  Colonial  Acts  of  Georgia, 
37,  47,  63,  102;  Martin,  IredclVs  Public  Acts,  i.  no;  No?-th  Carolina 
Records,  vi.  660;  Maryland  Archives,  vii.  610.  In  regard  to  a  Maryland 
statute  Attorney-General  Pratt  gave  his  opinion  that  "  the  sole  nomination 
of  those  commissioners  who  are  new  officers,  appointed  by  this  bill,  belongs 
neither  to  the  proprietary,  nor  the  lower  house ;  but,  like  all  other  regula- 
tions, must  be  assented  to  by  both,  but  can  be  claimed  by  neither  "  :  Chal- 
mers, Opifiions,  264. 


INTERFERENCE  IN  MILITARY  AFFAIRS.  1 89 

availing  itself  of  the  exceptional  opportunities  for  such  en- 
croachments afforded  by  the  frequent  French  and  Indian  wars 
of  that  period.  The  urgent  need  of  supplies  for  military 
purposes  occasioned  by  these  wars  enabled  the  assembly,  in 
making  its  grants  of  money,  to  impose  the  most  arduous  con- 
ditions. This  power  it  used  in  three  general  ways.  In  the 
first  place,  in  granting  military  supplies  it  prescribed  in  detail 
the  purposes  for  which  they  were  to  be  expended,  dictating 
the  course  of  military  operations  and  the  disposition  of  troops. 
Secondly,  it  left  in  the  hands  of  committees  of  the  assembly, 
or  of  commissioners  appointed  by  act  of  assembly,  the  dispo- 
sition of  these  funds,  often  too  with  a  very  considerable  con- 
trol of  the  conduct  of  military  enterprises.  Finally,  through 
the  appointment  and  removal  of  officers,  it  went  so  far  as  to 
interfere  with  the  discipline  of  troops. 

Of  all  these  ways  in  which  the  assembly  infringed  upon  the 
military  prerogative  of  the  governor  there  are  abundant  illus- 
trations. Take,  for  example,  the  first  instance,  —  the  power 
assumed  by  the  assembly  of  regulating  the  employment  of 
military  forces.  The  Pennsylvania  assembly  voted  in  1757 
that  of  fourteen  hundred  men  to  be  enlisted,  three  hundred 
should  be  employed  in  garrison  and  the  remaining  eleven  hun- 
dred in  ranging  and  scouting  parties. ^  Again,  an  order  of  the 
Massachusetts  General  Court  in  1722  provided  for  the  raising 
of  a  certain  number  of  men  for  a  military  expedition,  direct- 
ing that  three  hundred  of  these  should  be  posted  at  Penobscot 
and  the  rest  at  different  places  on  the  frontier.  The  governor 
insisted  that  by  the  charter  he  had  the  sole  direction  of  mili- 
tary forces;  but  he  was  compelled  to  submit  in  order  to  get 
the  necessary  supplies. ^  Under  Governor  Shirley,  who  was 
anxious  to  keep  the  assembly  in  good  humor,  this  tendency  to 
dictate  in  military  affairs  worked  itself  out  almost  without 
restraint  and  was  the  cause  of  serious  embarrassment  to  his 
successor."  Thus  in  1758  the  House,  following  precedents 
established   under   Shirley,   undertook    in   voting  pay  for  the 

^  Votes  of  Penttsylvania,  iv.  717. 

*  Hutchinson,  History  of  Massachusetts,  ii.  252. 

8  Ibid.,  iii.  66. 


190  ENCROACHMENTS    OF  THE  ASSEMBLY. 

forces  on  the  frontier  to  specify  the  number  of  men  to  be 
employed  at  each  point.  Governor  Pownall  declared  this  an 
infringement  of  his  rights  under  the  charter;  but  he  finally 
gave  his  assent  under  protest,  declaring  that  he  did  so  only 
on  account  of  the  pressing  necessity  of  the  situation.^ 

Of  the  second  class  of  encroachments,  namely,  of  the  prac- 
tice of  controlling  the  conduct  of  military  operations  by  com- 
mittees of  the  assembly  or  through  commissioners  appointed 
by  the  assembly,  there  is  equally  good  evidence.  In  1709 
and  171 1  the  New  York  assembly  was  allowed  to  name  com- 
missioners to  take  charge  of  the  commissariat;  and,  later, 
commissioners  of  fortifications  were  appointed  in  the  same 
way.  2  In  1722  the  representatives  in  the  provinces  of  Massa- 
chusetts and  New  Hampshire  passed  votes  providing  for  the 
appointment  of  committees  of  war  to  concert  plans  for  the 
conduct  of  the  war  and  to  exercise  a  certain  supervision ;  and 
although  in  each  case  the  plan  was  then  blocked  by  the  oppo- 
sition of  the  council,  yet  in  1745  both  assemblies  appointed 
committees  of  war,  which  assumed  the  management  of  the 
commissariat.^  The  practice  was  most  general  during  the 
last  French  war.  The  New  Jersey  military  supply  acts  were 
regularly  executed  by  commissioners  named  in  the  acts.  The 
home  government,  it  is  true,  forbade  the  governor's  acceptance 
of  such  acts,  but  it  was  unable  to  enforce  its  prohibition.*  A 
similar  course  was  taken  in  Pennsylvania,  where  serious  diffi- 
culties arose  on  one  occasion  from  the  failure  of  the  commis- 
sioners to  agree  with  the  governor  as  to  the  proper  course  to 
be  pursued.^     With  reference  to  a  Maryland  bill  of  the  year 

^  Massachusetts  Province  Laws,  iv.  94,  95 ;  Hutchinson,  History  of 
Massachusetts,  iii.  66-67.  For  New  York,  see  Chalmers,  Revolt,  ii.  229- 
232;  New  York  Documents,  vi.  616.  For  South  CaroHna,  see  Cooper, 
Statutes,  iii.  179. 

2  Chalmers,  Revolt,  i.  361-362,  367,  ii.  224-228. 

^  Hutchinson,  History  of  Massachusetts,  ii.  257,  370 ;  N'cw  Hampshire 
Provincial  Papers,  iv.  49,  325,  v.  293,  329.  C£.  the  action  of  the  New 
Jersey  assembly  in  1740,  New  fersey  Documents,  vi.  99. 

*  N^ew  fersey  Documents,  ix.  154,  158,  170,  225. 

6  Votes  of  Pen7isylvania,'\v.  717;  Historical  Review  of  the  Constitution 
and  Government  of  Pennsylvania  (1759),  44o~44i' 


COMMITTEES  OF  WAR.  I9I 

1757,  the  governor  declared  that  according  to  its  provisions 
the  troops  were  to  be  "under  the  Command  of  no  Body  but 
the  Agents,"  who  were  appointed  by  the  assembly.^ 

Nowhere  was  this  policy  carried  farther  than  in  Massachu- 
setts and  New  Hampshire.  In  Massachusetts  a  committee 
was  appointed  by  the  General  Court  to  consider  projects  for 
carrying  on  the  war,  with  instructions  to  report  to  the 
assembly;  another  was  named  to  take  charge  of  provisions  and 
other  supplies.  A  committee  of  war  consisting  of  five  mem- 
bers was  also  chosen,  to  sit  at  or  near  Albany  and  to  follow 
instructions  from  the  General  Court  "for  the  more  effectual 
carrying  into  Execution  the  intended  Expedition  against  Crown 
Point.  "2  Similar  action  was  taken  in  New  Hampshire,  where 
perhaps  the  most  extreme  measure  was  that  adopted  in  1756, 
when  agents  were  appointed  to  repair  to  Albany  and  to  trans- 
act there  any  affairs  relating  to  the  expedition,  following 
"such  Instructions  as  they  may  Receive  from  time  to  time 
from  the  Generall  Assembly."^ 

Finally,  the  assembly  was  disposed  to  interfere  with  the 
discipline  of  the  army  in  the  matter  of  appointment  and 
removal  of  officers.  An  indication  of  this  tendency  has  already 
been  seen  in  the  appointment  of  special  commissioners  by 
acts  of  assembly,  which  sometimes  appointed  paymasters  and 
commissaries,  and  apparently  such  officers  as  chaplains  and 
surgeons.*  It  did  not  often,  if  ever,  claim  the  right  directly 
to  appoint  military  officers  in  the  strict  sense  of  the  term,  but 
it  sometimes  interfered  seriously  with  the  discipline  of  the 
troops  by  attempting  to  enforce  the  removal  of  such  officers. 
Thus  in  1722  the  Massachusetts  assembly  summoned  the  com- 
manding officer  of  the  army  to  appear  before  it  and  explain 
why  certain  orders  voted  by  the  House  had  not  been  executed ; 

1  Marylmid  Archives,  ix.  100.  Cf.  Bacon,  Laws  of  Maryland,  1756, 
ch.  5. 

^  Massachusetts  Province  Laws,  iii.  940-963. 

3  New  Hatnpshire  Provincial  Papers,  vi.  368-371,  506-520.  For  a 
somewhat  similar  case  in  Virginia,  see  Hening,  Statutes,  vi.  524,  vii.  13. 

*  Chalmers,  Revolt,  i.  361-362,  ii.  229-232;  New  York  Docnmetits,  \\. 
616;  New  Jersey  Docianents,  ix.  225;  New  Hampshire  Provincial  Papers^ 
V.  296,  299-300,  376,  43S,  vi.  368-371,  376. 


192  ENCROACHMENTS  OF  THE  ASSEMBLY, 

and  it  finally  compelled  his  discharge  by  refusing  to  vote  his 
pay.^  The  South  Carolina  assembly  passed  a  very  extreme 
measure  in  172 1,  by  appointing  Indian  commissioners,  who 
among  other  duties  were  to  inspect  forts  and  garrisons  and  to 
give  any  necessary  orders  for  the  reform  of  abuses.  The 
military  officers  were  bound  to  carry  out  orders  of  this  kind ; 
and  if  they  failed  to  do  so,  the  commissioners  were  empowered 
to  suspend  them  and  to  make  temporary  appointments  in  their 
places.  2 

From  these  facts  it  is  clear  that  in  military  affairs  the 
assembly  had  seriously  encroached  upon  the  governor's  pre- 
rogative. Indeed,  this  statement  of  the  evidence  gathered 
from  the  practice  of  the  different  provinces  may  be  summed 
up  with  the  remark  of  the  historian  Chalmers  in  regard  to  the 
conduct  of  the  last  of  the  French  wars:  "The  king's  repre- 
sentative acted  merely  as  the  correspondent  of  his  ministers. 
The  war  was  conducted  by  committees  of  assembly."^ 

In  regard  to  the  interference  of  the  assembly  with  external 
relations  a  few  words  will  suffice.  These  external  relations, 
it  will  be  remembered,  were  chiefly  of  two  kinds,  —  inter- 
colonial interests  and  Indian  affairs.  As  to  questions  arising 
between  the  colonies,  it  may  be  said  that  the  appointment  by 
the  assembly  of  commissioners  to  deal  with  boundary  disputes 
is  frequently  recorded  by  nearly  every  colony,  and  was  finally 
sanctioned  in  some  cases  by  the  authority  of  the  crown  itself.* 
In  regard  to  relations  with  the  Indians,  the  assembly  showed 
a  similar  disposition  to  assert  its  control,  as  a  few  illustrations 
taken  almost  at  random  will  sufficiently  indicate.  In  1722 
the  Massachusetts  House  voted  that  the  speech  to  be  made 
by  the  governor  at  a  meeting  with  delegates  of  the  Iroquois 
nation  should  be  spoken  in  the  name  of  the  assembly,  and 
that  the  House  of  Representatives  should  be  present.  The 
governor  at  first  refused,  but  he  was  finally  obliged  to  submit. 

1  Hutchinson,  History  of  Massachusetts,  ii.  254-260,  265-266. 

2  Cooper,  Statutes,  iii.  142;  cf.  230,  329,  333. 

3  Revolt,  ii.  300-301. 

4  See  above,  p.  109,  and  AUinson,  Acts  of  Assembly ^  ch.  396. 


WEAKENING   OF  THE  EXECUTIVE.  1 93 

The  House  had  in  the  first  place  proposed  that  the  speech 
should  be  composed  by  a  joint  committee  of  the  two  houses; 
and  although  this  was  not  done,  yet  the  speech  was  actually 
submitted  to  the  assembly  for  its  approval.^  Again,  in  1723, 
the  House  is  found  sending  instructions  to  the  commissioners 
appointed  to  confer  with  the  Five  Nations  at  Albany.^  In 
South  Carolina  and  Pennsylvania  Indian  commissioners  were 
appointed  by  the  assembly.^  In  1755  the  South  Carolina 
assembly  voted  that  the  governor  and  council  should  take  the 
counsel  of  several  members  of  the  assembly  in  their  negotia- 
tions with  the  Creeks.* 

It  has  now  been  seen,  perhaps  in  wearisome  detail,  to  how 
great  an  extent  the  assembly  had  in  various  ways  encroached 
upon  essentially  executive  functions  of  the  governor.  These 
usurpations,  or  whatever  else  they  may  be  called,  probably 
reached  their  height  during  the  last  of  the  Indian  wars,  when 
the  pressure  upon  the  governors  was  of  course  stronger  than  at 
any  other  time.  It  is  probable,  however,  that  if  the  political 
development  of  the  colonies  had  not  been  in  a  sense  inter- 
rupted by  the  events  of  the  revolutionary  period,  the  assem- 
blies would  have  made  even  greater  advances.  Already  indeed 
in  some  of  the  provinces  the  governor's  power  had  been  re- 
duced within  very  narrow  limits.  Governor  Glen's  statement 
in  regard  to  South  Carolina,  to  the  effect  that  the  executive 
power  was  very  largely  in  the  hands  of  commissioners  appointed 
by  the  assembly,  applies  fairly  well  to  Pennsylvania  also.^ 
In  regard  to  the  Massachusetts  government  the  Board  of  Trade 
wrote  in  1757:  "Almost  every  act  of  executive  and  legisla- 
tive power,  whether  it  be  political,  judicial  or  military,  is 
ordered  and  directed  by  Votes  and  Resolves  of  the  General 

1  Hutchinson,  History  of  Massachusetts,  ii.  254. 

2  House  Journal,  1723,  pp.  5-8. 
8  See  above,  pp.  187,  188. 

4  Cooper,  Statutes,  iv.  19.  In  1758  the  Maryland  assembly  appointed 
agents  to  provide  presents  for  the  Indians,  though  the  money  was  to  be 
expended  only  with  the  approval  of  the  governor.  See  Bacon,  Laws  of 
Maryland,  1758,  ch.  i. 

6  South  Carolina  Historical  Society,  Collections,  ii.  303. 

13 


194  ENCROACHMENTS  OF  THE  ASSEMBLY. 

Court,  in  most  cases  originating  in  the  House  of  Representa- 
tives." ^  A  similar  statement  in  regard  to  New  York  was  made 
by  the  Board  in  1752.2  Even  at  the  close  of  Queen  Anne's 
reign,  Chalmers  said  of  the  New  York  government  that  it 
"  was  really  changed ;  from  being  monarchical,  it  had  already 
become  democratical."^ 

Without  undertaking  to  pass  a  final  judgment  upon  the 
policy  of  the  assembly  or  the  opposition  of  the  home  govern- 
ment, some  conclusions  may  fairly  be  drawn.  In  the  first 
place,  it  is  clear  that  such  a  policy  was  not  likely  to  bring 
about  the  most  effective  administration  of  public  affairs, 
involving,  as  it  did,  the  practical  breaking  off  of  large  or  small 
fragments  of  the  governor's  prerogative,  some  of  which  were 
given  either  to  committees  of  the  assembly  or  to  the  assembly 
itself,  and  others  to  officers  more  or  less  responsible  to  the 
assembly.  The  policy,  it  is  true,  accomplished  the  end  which 
it  had  in  view,  namely,  the  weakening  of  the  governor,  who, 
if  not  personally  an  object  of  distrust  and  suspicion,  was  at 
least  looked  upon  as  the  representative  of  interests  at  variance 
with  those  of  the  colonies.  Certainly,  however,  the  result 
was  a  system  of  administration  far  from  ideal.  There  was  no 
concentration  of  responsibility,  no  unity  of  administration; 
and  yet  whether  these  evils  were  any  greater  than  those  which 
would  have  grown  up,  which  indeed  had  already  made  them- 
selves felt,  under  the  old  system  contemplated  by  the  com- 
mission and  instructions,  is  a  question  not  to  be  hastily 
decided. 

Though  it  be  admitted  that  any  lack  of  administrative 
efficiency  was  more  than  made  good  by  the  enforcement  of  the 
principle  of  popular  control  over  the  executive,  yet  the  fact 
must  be  recognized  that  the  system  was  intrinsically  corrupt, 
corrupt  not  only  in  its  immediate  results  but  in  the  vicious 
traditions  which  were  left  behind.  This  influence  was  mani- 
fest   in   the   first  constitutions  of  the  independent  States,  as 

1  Board  of  Trade  to  Governor   Pownall,  Dec.  8,   1757,  Massachusetts 
Province  Laws,  iv.  95-96. 

2  Chalmers,  Revolt,  ii.  255. 
8  Ibid.,  S3. 


VICIOUS   TRADITIONS.  195 

shown  in  the  very  general  distrust  of  the  executive  expressed 
in  those  instruments,  in  the  tendency  to  make  the  governor 
so  far  as  possible  dependent  upon  and  subordinate  to  the 
legislature. 

The  experience  of  a  few  years,  however,  proved  the  folly  of 
this  narrow  course.  It  became  evident  that  jealousy  of  the 
executive  had  no  place  in  a  system  in  which  the  executive  as 
well  as  the  legislature  was  the  representative  of  the  people; 
and  gradually  the  vicious  traditions  of  the  old  regime  gave 
way  to  the  sounder  principles  of  the  Federal  constitution. 


CHAPTER  XI. 

THE    GOVERNOR'S    LEGAL  AND   POLITICAL 
ACCOUNTABILITY:    CONCLUSION. 

The  governor's  accountability,  like  his  whole  official  char- 
acter, was  two-fold:  he  was  held  by  legal  and  administrative 
checks  to  his  accountability  to  the  home  government,  and  by 
various  practical  and  political  checks  to  his  responsibility  to  the 
people  of  his  province. 

His  accountability  to  the  crown  for  the  loyal  support  of 
British  and  royal  interests  was  enforced  by  the  liability  to 
removal  for  serious  violations  of  his  trust.  Some  of  the  spe- 
cific penalties  attached  to  breach  of  particular  instructions 
have  already  been  noticed.  Another  method  of  enforcing 
responsibility  lay  in  the  requirement  of  bonds  for  the  due 
observance  of  instructions.  Such  security  was  first  demanded 
by  the  crown  from  the  proprietary  governments.  In  Pennsyl- 
vania  it   was   exacted   from   the   governor   by  the   proprietor 

himself.^ 

In  addition  to  these  checks,  which  may  perhaps  be  called 
administrative,  the  governor  had  also  a  certain  legal  account- 
ability in  the  courts,  though  he  was  answerable  only  at  the 
King's  Bench,  and  not  in  any  court  within  his  province.  This 
principle  was  clearly  stated  by  Chief  Justice  Mansfield  in  his 
decision  in  the  case  of  Fabrigas  vs.  Mostyn,  which  came  before 
him  in  1773.^  Indeed,  as  early  as  1700  the  jurisdiction  of  the 
King's  Bench  in  case  of  criminal  misconduct  on  the  part  of 

1  Above,  p.  68 ;  New  Jersey  Documents,  ii.  141,  142 ;  Proud,  History  of 
Pentisylvania,  ii.  182,  188. 

2  He  declared  that  the  governor  must  be  accountable  in  the  court  of 
Kine's  Bench,  for  otherwise  he  could  be  held  to  account  nowhere.  See 
Howell,  State  Trials,  xx.  231. 


LEGAL   CHECKS  INADEQUATE.  I97 

colonial  governors  was  defined  by  act  of  Parliament. ^  Suits 
for  damages  might  be  brought  against  the  governor  in  the 
same  court.  2  Instances  of  the  actual  prosecution  of  gover- 
nors in  this  way  are,  however,  hard  to  find.  Douglass  in  his 
"Summary"  mentions  only  two  cases  of  actual  trial  before  the 
court  of  King's  Bench,  those  of  Douglass,  governor  of  the 
Leeward  Islands  in  1716,  and  Lowther  of  Barbadoes  in  1720. 
The  only  instances  found  in  the  old  thirteen  colonies  are 
those  of  Lord  Bellomont,  governor  of  New  York  at  the  close 
of  the  seventeenth  century,  against  whom  suit  for  false  impris- 
onment was  brought,  and  Sir  William  Phips,  who  was  sued  for 
illegal  interference  with  a  collector  of  customs. ^ 

According  to  two  important  witnesses,  these  legal  checks 
were  nevertheless  very  far  from  giving  perfect  security  against 
misconduct.  One  testimony,  from  an  official  or  semi-official 
source,  certainly  not  from  the  standpoint  of  a  colonist,  is  a 
report  presented  through  Secretary  Stanhope  to  the  Board  of 
Trade  in  171 5.  This  writer  declares  that  "on  Complaints  of 
grievances,  and  of  many  great  oppressions,  which  have  not 
been  done  in  a  Judicial  way,  and  where  the  proceedings  were 
not  of  record,  and  consequently  could  not  be  proved  so  fully 
before  the  King,  as  in  the  aforesaid  case  of  Appeals,  the 
persons  injured  meet  with  unsupportable  difficulties  and  have 
seldom  bin  relieved  on  their  complaints."*  The  other  wit- 
ness is  Hamilton,  who,  in  his  famous  speech  delivered  in 
defence  of  Zenger  in  the  year  1735,  based  his  argument  for 
freedom  of  speech  largely  upon  the  fact  that  other  means  of 
holding  the  provincial  governor  to  his  accountability  were 
ineffective.  "We  are  indeed  told,"  said  he,  "and  it  is  true 
they  are  obliged  to  answer  a  suit  in  the  king's  courts  at 
Westminster,  for  a  wrong  done  to  any  person  here:  But  do  we 

1  Statutes  at  Large^  11  &  12  Will.  III.  c.  12. 

2  See  case  of  Fabrigas  vs.  Mostyn,  in  Howell,  State  Trials,  xx.  81. 

8  For  Douglass  and  Lowther,  see  Douglass,  Siimjnary,  i.  217.  The  case 
of  Bellomont  is  cited  by  Mansfield  in  his  decision  in  the  case  of  Fabrigas 
vs.  Mostyn  (Howell,  State  Trials,  xx.  217-218,  232).  The  decision  of 
Mansfield  referred  to  arose  in  Minorca,  and  at  the  very  end  of  our  colonial 
era.     For  Phips,  see  Hutchinson,  History  of  Massachusetts,  ii.  74-75)  S2. 

*  North  Carolina  Records,  ii.  1 61-163. 


198  THE  GOVERNOR'S  ACCOUNTABILITY. 

not  know  how  impracticable  this  is  to  most  men  among  us,  to 
leave  their  families,  (who  depend  upon  their  labour  and  care 
for  their  livelihood)  and  carry  evidences  to  Britain,  and  at  a 
great,  nay,  a  far  greater  expence  than  almost  any  of  us  are  able 
to  bear,  only  to  prosecute  a  governor  for  an  injury  done  here? 
But  when  the  oppression  is  general,  there  is  no  remedy  even 
that  way. "  1 

Since  the  restraints  imposed  upon  the  governor  by  the 
home  government  are  seen  to  have  been  practically  inadequate, 
more  effective  checks  must  be  sought  within  the  province. 
It  is  true  that  one  branch  of  the  provincial  government,  the 
judiciary,  was  largely  ineffective  for  this  purpose,  since  it 
was  too  much  under  the  control  either  of  the  crown  or  of  the 
governor,  and  was  therefore  not  sufficiently  representative  of 
public  opinion.  This  public  opinion  of  the  province  was 
after  all  the  strongest  restraining  influence  upon  the  gover- 
nor; to  it,  indeed,  even  the  royal  administrative  control  owed 
a  large  share  of  such  efficiency  as  there  was  in  the  system. 
Of  course  the  great  organ  of  public  opinion  was  the  provincial 
assembly;  and  yet,  underlying  the  need  of  an  organic  embodi- 
ment of  public  opinion,  there  is  a  need  yet  more  necessary 
and  fundamental,  —  the  necessity  of  a  free  and  open  inter 
change  of  ideas  on  political  subjects,  of  freedom  to  criticise 
the  acts  of  any  public  officer,  even  the  highest.  In  times  like 
those  of  the  colonial  era,  when  redress  from  the  home  govern- 
ment could  be  had  only  with  difficulty,  when  judges  were  sub- 
servient, when  even  assemblies  might  be  corrupted,  this  was  the 
last  resort,  the  only  ground  of  hope  for  a  sound  political  life. 

In  the  early  years  of  the  colonial  era  the  right  of  free  speech 
was  not  always  well  guarded.  There  was  frequent  legislation, 
for  example,  against  "seditious  utterances,"  a  term  which 
might  mean  almost  anything.  In  1639  the  Maryland  assembly 
passed  an  act  for  "determining  enormous  offences,"  among 
which  were  included  "scandalous  or  contemptuous  words  or 
writings  to  the  dishonour  of  the  lord  proprietarie  or  his  lieu- 
tenant generall  for  the  time  being,  or  of  any  of  the  council. "  ^ 

1  Howell,  State  Trials,  xvii.  707. 

2  Bozman,  History  of  Maryland,  ii.  603. 


FREEDOM  OF  SPEECH  AND   OF  THE  PRESS.       IQQ 

By  a  North  Carolina  act  of  171 5  seditious  utterance  against 
the  government  was  made  a  criminal  offence,  and  in  1724 
Joseph  Castleton,  for  malicious  language  against  Governor 
Burrington  and  for  other  contemptuous  remarks,  was  sentenced 
by  the  General  Court  to  stand  in  the  pillory  for  two  hours  and 
on  his  knees  to  beg  the  governor's  pardon.^  A  New  Jersey 
act  of  1675  required  that  persons  found  guilty  of  resisting  the 
authority  of  the  governor  or  councillors  "either  in  Words  or 
Actions  ...  or  by  speaking  contemptiously,  reproachfully, 
or  maliciously,  of  any  of  them,"  should  be  liable  to  fine, 
banishment,  or  corporal  punishment  at  the  discretion  of  the 
court. ^  In  Massachusetts  even  during  the  eighteenth  century 
the  right  of  free  political  discussion  was  denied  by  the  House 
of  Representatives  as  well  as  by  the  royal  governor,  though 
often  unsuccessfully.^ 

The  history  of  the  liberty  of  speech  and  of  the  press  in  the 
colonies  does  not  lack  its  causes  c^l^bres.  One  of  the  most 
striking  is  that  of  Nicholas  Bayard  in  1702.  Under  a  statute 
declaring  that  persons  endeavoring  "  by  force  of  arms,  or  other 
ways,  to  disturb  the  peace,  good,  and  quiet  of  this  their  majes- 
ties' government,  as  it  is  now  established,"  should  be  deemed 
rebels,  Bayard,  on  a  warrant  of  the  governor  and  council,  was 
committed  on  a  charge  of  high  treason.  The  grand  jury, 
which  was  said  to  have  been  packed,  brought  in  an  indictment 
charging  the  prisoner  with  circulating,  particularly  among  the 
soldiers,  libels  declaring  the  existing  government  oppressive, 
and  thus  inciting  the  king's  subjects  "to  disown  the  present 
authority."  These  alleged  libels  were  embodied  in  an  address 
to  Lord  Cornbury,  the  newly-appointed  governor,  who  had  not 
yet  arrived  in  the  province,  — a  course  of  action  on  Bayard's 
part  which  was  held  to  be  in  contempt  of  the  governor  then 
in  office,  —  in  a  second  address  to  the  king  and  in  a  third  to 
the  House  of  Commons. 

The  trial  took  place  before  commissioners  who  were  specially 

1  Iredell,  La7us  of  North-Carolina,  17;  North  Carolina  Records,  ii.  546. 

2  Learning  and  Spicer,  Grants,  Concessions,  etc.,  99.     Cf.  Ibid.,  77. 

8  See  on  this  subject,  C.  A.  Duniway,  History  of  Restrictions  up07t  the 
Freedom  of  the  Press  in  Massachusetts,  chs.  3,  4. 


200  THE  GOVERNOR'S  ACCOUNTABILITY. 

appointed  for  the  purpose  by  the  governor,  and  who  through- 
out the  trial  displayed  a  marked  bias  against  the  prisoner.  It 
was  claimed  that  the  jury  was  packed.  According  to  some  of 
the  most  damaging  charges  preferred  by  the  prosecuting  wit- 
nesses, Bayard  had  asserted  that  "  the  hottest  and  ignorantest  of 
the  people  were  put  into  places  of  trust,"  and  that  the  assembly 
had  given  the  governor  money  to  induce  his  approval  of  cer- 
tain bills.  In  the  course  of  the  trial  one  of  the  commissioners 
even  made  the  astonishing  statement  that  it  might  be  a  crime 
"to  petition  the  House  of  Commons  in  the  plantations,  where 
the  king  governs  by  prerogative."  On  such  charges  Bayard 
was  found  guilty,  and  was  sentenced  to  be  hung,  drawn,  and 
quartered.  This  extreme  sentence  was  not  carried  out,  how- 
ever; with  difficulty  he  obtained  a  reprieve,  and  on  Cornbury's 
arrival  the  attainder  was  reversed  by  an  act  of  assembly,  which 
was  confirmed  by  Queen  Anne.^ 

Another  method  of  restraining  the  liberty  of  public  speech 
has  already  been  noticed  in  the  unsuccessful  attempt  to  give 
to  the  governors  a  censorship  of  the  press.  ^  Apart  from  these 
extreme  methods,  an  attempt  was  also  made  to  curb  the  expres- 
sion of  political  opinions  by  the  application  of  the  law  of  libel. 
The  classic  illustration  of  this  class  of  efforts  is  the  case  of 
John  Peter  Zenger,  who  was  tried  for  publishing  a  libel  against 
Governor  Cosby  of  New  York.^  Lewis  Morris,  chief  justice 
of  the  Supreme  Court,  had  rendered  a  decision  unfavorable  to 
the  governor  in  a  suit  involving  the  latter' s  salary.  Cosby 
thereupon  removed  Morris  and  appointed  a  new  chief  justice, 
De  Lancey,  who,  as  associate  justice,  had  dissented  from  the 
opinion  rendered  by  Morris.  Morris  then  wrote  several  papers 
criticising  the  governor's  course,  which  were  published  in 
Zenger' s  "Journal."  These  the  governor  straightway  de- 
nounced as  false  and  scandalous  libels ;  whereupon  Chief  Jus- 
tice De  Lancey  charged  the  grand   jury,   dwelling  upon   the 

^  See  the  report  of  the  case  in  Howell,  State  Trials,  xiv.  471.  Cf. 
Chalmers,  Opinions,  340  ;    Smith,  History  of  New  York  (1776),  141-144. 

2  See  above,  p.  127. 

8  For  an  earlier  case  in  Maryland,  see  Hamilton's  speech  in  the  Zenger 
trial  (Howell,  State  Trials,  xvii.  717). 


THE  ZENGER   TRIAL.  201 

peculiar  danger  of  libels  on  the  governor,  arguing  that  they 
endangered  the  peace  and  created  a  distrust  of  government; 
but  the  jury  failed  to  respond  to  his  appeal.  The  council  then 
sent  a  message  to  the  House  of  Representatives  urging  that 
body  to  take  action ;  but  the  House  laid  the  message  on  the 
table.  The  council  then  ordered  that  the  papers  should  be 
burned;  Zenger  was  arrested  on  an  order  of  the  governor  and 
council;  and  an  unsuccessful  effort  was  made  to  pack  the  jury. 
Andrew  Hamilton  of  Pennsylvania,  the  leading  colonial  lawyer 
of  the  time,  undertook  the  defence  without  any  retainer. 

The  issues  were  drawn  very  distinctly.  The  prosecuting 
attorney  argued  that  government  was  a  sacred  thing;  that  if 
persons  high  in  office  were  exposed  to  censure  by  private  indi- 
viduals, government  could  not  maintain  itself.  Hamilton,  on 
the  other  hand,  rested  his  argument  for  the  defence  largely  on 
the  principle  that  falsity  is  necessary  to  constitute  a  libel. 
The  court  refused  to  admit  the  question  of  truth;  whereupon 
Hamilton  made  his  appeal  to  the  jury  with  a  strong  argu- 
ment for  free  criticism  as  the  only  safeguard  against  abuses  in 
government.  This  appeal  won  the  day,  and  the  prisoner  was 
discharged.^  The  outcome  of  this  case  had  a  marked  influence 
in  other  colonies.  It  is  true  that  in  1768  Chief  Justice  Hutch- 
inson, in  his  charge  to  the  grand  jury,  urged  action  on  certain 
articles  reflecting  upon  the  governor's  conduct  which  were 
published  in  the  "Boston  Gazette";  but  the  grand  jury 
ignored  the  suggestion.  ^ 

It  is  no  exaggeration  to  say  that  without  at  least  partial 
freedom  of  speech  and  of  the  press  the  restraining  influence  of 
the  representative  system  upon  the  governor  would  have  been 
impossible.  In  the  face  of  open  public  criticism,  the  gov- 
ernor could  no  longer  secure  the  election  of  representatives 
who  would  carry  out  his  policies  without  question.  Subser- 
vient representatives  knew  that  they  would  have  to  face  the 


1  On  this  whole  affair,  see  the  report  of  the  case  in  Howell,  State  Trials, 
xvii.  675,  and  the  letter  of  Governor  Cosby  to  the  Lords  of  Trade,  A'ew 
York  Documents,  vi.  4. 

2  Quincy,  Massachusetts  Reports,  262  seq. 


202  CONCLUSION. 

wrath  of  their  constituents,  whereas  opposition  to  the  gover- 
nor might  be  one  of  the  shortest  roads  to  popularity. 

Furthermore,  the  free  expression  of  public  opinion  in  the 
press  and  in  the  assembly  had  an  important  result  in  strength- 
ening the  efficiency  of  the  English  system  of  control.  The 
public  sentiment  of  the  colony  was  thus  enabled  to  make 
itself  felt  not  only  by  the  governor  but  also  by  those  au- 
thorities to  which  alone  the  governor  was  strictly  and  legally 
accountable.  Indeed,  the  assemblies,  through  their  regularly- 
appointed  agents,  came  to  have  a  very  considerable  influence  in 
London,  and  were  sometimes  even  strong  enough  to  secure 
the  recall  of  obnoxious  governors.^  The  name  of  Benjamin 
Franklin  will  at  once  suggest  itself  as  that  of  the  most  suc- 
cessful, or  at  least  the  most  eminent,  of  these  representatives 
of  colonial  opinion. 

This  study  of  the  provincial  governor  may  be  properly 
closed  by  a  brief  survey  of  the  main  conclusions  which  have 
been  reached. 

The  royal  or  provincial  government  was  not  a  system  which 
came  full-armed  into  existence  at  the  beginning  of  our  colo- 
nial history,  but  it  had  been  preceded  by  other  systems,  among 
which  it  had  gained  a  place  which  gradually  became  the 
dominant  one.  Direct  control  by  the  crown,  for  example,  had 
been  preceded  by  various  arrangements  under  which  govern- 
ment was  left  in  the  hands  of  private  persons  or  of  corpora- 
tions. Again,  the  ultimate  form  of  the  executive  in  the  royal 
provinces,  that  of  a  governor  checked  by  an  executive  council, 
had  been  preceded  by  experiments,  now  with  a  collegiate 
executive,  or  again  with  a  single  head  unchecked  by  any 
council.  The  powers  of  the  governor  had  also  gradually  un- 
dergone important  limitations,  as  is  shown  by  comparing  the 
elaborate  instructions  of  later  days  with  the  brief,  indefinite 
grants  of  power  which  had  gone  before  them.  In  a  word,  the 
old  confusion  of  functions  had  been  forced  to  give  way  to  a 
partial  separation  of  powers.  In  the  provincial  governments, 
then,  —  a  term  including  proprietary  as  well  as  royal  govern- 

1  See  above,  p.  51. 


CONCLUSION.  203 

ments,  —  the  executive  finally  took  the  form  of  a  governor 
appointed  either  by  the  crown  or  by  the  proprietor  as  the  case 
might  be,  checked  and  assisted  by  an  executive  council  ap- 
pointed commonly  on  the  governor's  recommendation. 

The  governor's  powers  and  duties  were  defined  by  a  great 
variety  of  instruments,  of  which  the  most  important  were  the 
commission  and  instructions,  issued  either  by  the  crown  or 
by  the  proprietor.  These  instruments  were  modified  to  an 
important  extent  by  the  local  usages  of  the  different  provinces. 
The  main  outlines  of  the  governor's  office  were  determined  by 
his  vice-regal  character :  as  the  representative  of  the  king,  he 
succeeded  with  certain  inevitable  limitations  to  the  powers  of 
the  royal  prerogative.  He  was  in  the  first  place  invested  with 
certain  powers  which  may  be  regarded  as  essentially  executive, 
such  as  the  command  of  the  military,  the  determination  of 
questions  of  war  and  peace  within  narrow  limits,  the  repre- 
sentation of  the  colony  in  its  external  relations,  the  appoint- 
ing power,  a  certain  limited  control  of  provincial  finance,  and 
finally  the  power  of  pardon. 

The  governor  also  stood  in  close  and  important  relations 
with  the  other  departments  of  the  provincial  system,  the  judi- 
ciary and  the  legislature.  Over  the  former  branch  he  exercised 
a  strong  influence  through  his  right  of  appointing  judges  and 
through  a  limited  control  of  the  provincial  courts;  further- 
more, with  the  council  he  was  in  most  of  the  colonies  himself  a 
part  of  the  judicial  system,  whose  independence  and  consequent 
value  as  a  check  upon  the  executive  were  seriously  impaired. 
Over  the  assembly,  too,  the  governor  had  very  considerable 
influence.  He  had  generally  its  very  existence  in  his  hands; 
in  most  provinces  he  might  determine  its  sessions  at  will;  its 
upper  house  was  a  body  of  men  chosen  for  the  most  part  on 
his  recommendation,  and  he  had  also  in  his  power  of  distrib- 
uting patronage  a  very  important  instrument  for  undermin- 
ing the  independence  of  the  representative  house;  finally,  he 
was  himself,  through  his  power  of  approving  or  vetoing  the  acts 
of  the  assembly,  a  part  of  the  legislature  of  the  province. 

On  the  other  hand,  the  assembly  through  its  mere  existence 
as  a  critical  body  was  the  organized  expression  of  the  public 


204  CONCLUSION. 

opinion  of  the  province,  and  through  its  power  over  the  purse 
was  able  to  control  the  governor's  action  to  an  extent  which 
more  than  counteracted  the  measure  of  power  which  he  pos- 
sessed over  the  assembly.  In  this  control  of  the  financial  situa- 
tion the  assembly  had  a  formidable  weapon,  which  it  used  not 
merely  as  an  instrument  of  security  against  abuse  of  execu- 
tive power,  but  also  as  a  means  of  extorting  from  the  governor 
important  powers  properly  belonging  to  the  executive.  The 
result  was  that  in  some  of  the  colonies  a  very  large  share  of 
the  executive  power  fell  into  the  hands  of  the  assembly  or 
of  their  appointees. 

But  the  governor  was  more  than  the  head  of  a  local  system : 
he  was  also  the  agent  of  the  crown,  bound  to  maintain  its 
interests;  he  was  the  regular  medium  of  communication  be- 
tween the  colonies  and  the  home  government,  and  the  executor 
of  acts  of  Parliament  relating  to  the  colonies.  Naturally  this 
double  nature  of  the  office  was  often  the  source  of  serious 
embarrassment  when  royal  or  British  interests  came  into  con- 
flict, or  apparent  conflict,  with  the  interests  of  the  province. 

The  governor  had  also  a  double  responsibility,  owing  a  legal 
and  official  accountability  to  the  home  government,  and  a 
moral  and  practical  one  to  the  people  of  the  province  and  their 
representative,  the  assembly.  The  first  obligation  was  imper- 
fectly enforced  by  judicial  and  administrative  processes;  the 
second  was  more  effectively  secured  by  the  hold  of  the  as- 
sembly on  the  public  purse. 

Throughout  this  study  the  conflict  of  opposing  principles 
has  been  apparent.  In  the  first  place,  there  was  the  inevi- 
table conflict  between  legislative  and  executive  departments, 
marked  by  the  almost  universal  tendency  of  the  legislature 
first  to  check  and  finally  to  usurp  executive  powers.  This 
issue  was  complicated  by  the  conflicts  between  two  other  pairs 
of  opposing  principles.  The  governor,  as  the  representative 
of  the  monarchical  idea,  stood  over  against  the  assembly,  which 
represented  the  people.  Finally  the  governor,  as  the  agent  of 
the  crown  and  therefore  the  representative  of  imperial  or  per- 
haps more  accurately  British  interests,  came  in  conflict  with 
the  assembly  which  embodied  the  local  forces,  the  local  in- 


CONCLUSION.  205 

terests  of  the  province,  and  sometimes  at  least  broader  colonial 
or  American  interests.  In  all  of  these  contests  the  governor 
stood  for  a  losing  cause. 

Rightly  then  to  understand  the  deeper  forces  which  pro- 
duced the  war  of  independence,  one  must  understand  the 
gradual  growth  of  that  sense  of  divergent  interests  without 
which  all  the  political  agitation  of  Samuel  Adams,  the  elo- 
quence of  Patrick  Henry,  and  even  a  few  injudicious  meas- 
ures of  British  statesmen  from  1760  to  1774,  could  hardly 
have  led  to  revolution.  Nowhere  can  this  gradually  awaken- 
ing consciousness  of  divergence,  so  far  as  it  reveals  itself  prior 
to  what  is  commonly  called  the  revolutionary  era,  be  better 
studied  than  in  the  conflicts  between  the  provincial  governor 
and  the  provincial  assembly.  It  is  the  significance  of  these 
issues  which  has  given  to  this  study  its  chief  importance. 
The  questions  involved  are  not  of  merely  antiquarian  or 
temporary  or  local  interest:  they  are  vital,  permanent,  and 
fundamental. 


APPENDICES. 


APPENDIX    A. 

REPRESENTATIVE   COMMISSIONS  AND   INSTRUCTIONS. 

I.   COMMISSION   TO   SIR  THOMAS   WEST,   LORD  LA  WARR, 
AS   GOVERNOR   OF   VIRGINIA,    1610. 

[From  Whitelocke  Papers,  vol.  i.  No.  38  ;  printed  in  Alexander  Brown,  Genesis  of 

ike  United  States,  i.  375.]  * 

The  Coppie  of  the  Commission  granted  to  the  right  honorable 
Sir  Thomas  West,  Knight,  Lord  La  Warr. 

^TO  all  unto  whome  theis  presents  shall  come,  We  the  Lords  and  others 
of  his  Majesties  Councell  for  the  Company  of  Adventurers  and  Planters 
of  the  first  CoUonie  in  Virginia,  resident  in  England,  and  We  the  Treas- 
urer and  Companie  of  the  said  Adventurers  do  send  greeting  in  our  Lord 
God  Everlasting.  — 

Whereas  the  King's  most  royall  Majesty,  that  now  is,  by  his  Highnes 
Letters  Pattents  under  the  Great  Seale  of  England,  bearing  date  at 
Westminster  the  three  and  twentith  day  of  May  now  last  past,  before 
the  date  of  these  presents,  hath  given  unto  us  his  Majesties  said  Coun- 
cell full  power  and  authority  as  well  at  this  present  tyme  as  hereafter 
from  tyme  to  tyme,  to  nominate  make  constitute  ordaine  and  confirme 
by  such  name  or  names,  stile  or  stiles  as  to  us  his  Majesties  said  Coun- 
cell shall  seeme  good,  and  likewise  to  revoke  discharge,  change  and  alter 
all  and  singular  Governors,  Officers,  and  ministers,  which  have  been 
made,  as  also,  which  should  be  by  us  his  Majesties  said  Councell  there 
after  thought  fitt  and  needfull  to  be  made  and  used  for  the  Government 
of  the  said  Collonie  and  Plantation,  and  the  same  at  all  tymes  thereafter 

*  Reprinted  by  permission  of  the  author  and  Messrs.  Houghton,  Mifflin  and 
Company. 


208  APPENDIX  A. 

to  abrogate,  revoke  or  change,  not  only  within  the  precincts  of  the  said 
Collonie  but  also  upon  the  seas  in  going  and  coming  to  and  from  the 
said  Collonie,  as  we  the  said  Councell  in  our  discretions  shall  thinke  to 
be  fittest  for  the  good  of  the  Adventurers  and  Inhabitants  there. 

And  Whereas  his  Majestic  by  his  said  Letters  Pattents  hath  declared 
that  for  divers  reasons  and  considerations  him  thereunto  especially  move- 
ing,  his  will  and  pleasure  is,  and  by  his  said  letters  patents  he  hath 
ordained,  that  immediately  from  and  after  such  tyme  that  any  Governor, 
or  principall  Officer  so  to  be  nominated  by  us  his  Majesties  said  Coun- 
cell for  the  government  of  the  said  Collonie  aforesaid,  shall  arrive  in 
Virginia  and  give  notice  unto  the  Collonie  there  resident  of  his  Majesties 
pleasure  in  this  behalf,  the  Government,  power  and  authoritie  of  the 
President  and  Councell  then  to  be  there  established  and  all  Laws  and 
Constitutions  by  them  formerly  made  shall  utterhe  cease  and  be  deter- 
mined, and  all  officers,  Governors  and  ministers  formerlie  constituted  or 
apointed  shalbe  discharged  anything  in  any  of  his  Majesties  Letters  Pat- 
tents  concerning  the  said  Plantation  contained  in  anywise  to  the  contrary 
notwithstanding. 

And  Whereas^  also  his  said  Majestic  by  his  said  Letters  Pattents  hath 
ordained  and  graunted  that  such  Governers,  officers  and  ministers  as  by 
us  his  Majesties  said  Councell  shall  be  constituted  and  apointed,  accord- 
ing to  the  natures  and  limitts  of  their  severall  offices  and  place  respec- 
tivehe  should  and  might  from  tyme  to  tyme  forever  thereafter,  within  the 
precincts  of  Virginia  or  in  the  way  by  the  sea  thither  and  from  thence, 
have  full  and  absolute  power  and  authoritie  to  correct,  punish,  pardone, 
governe  and  Rule,  all  such  the  subjects  of  his  Majestic,  his  heirs  and 
successors  in  any  voyage  thither,  or  that  should  at  any  tyme  there  inhabite 
in  the  precincts  and  Territorie  of  the  said  Collonie,  as  is  aforesaid, 
according  to  such  ordinances,  orders,  directions,  constitutions  and  In- 
structions, as  by  us  his  Majesties  said  Councell  for  the  tyme  being  shalbe 
established,  and  in  defect  thereof  in  case  of  necessitie  according  to  the 
good  discrecions  of  the  said  Governors  and  Officers  respectively,  as  well 
in  cases  Capitall  and  Criminall  as  civill,  both  Marine  and  others,  so  all- 
waies  as  the  said  statutes,  ordinances  and  proceedings  as  neere  as  con- 
venientlie  maybe,  be  agreeable  to  the  Laws,  Statutes,  Government  and 
Policie  of  this  his  Majesties  Realme  of  England. 

And  Whereas  likewise  his  said  Majestic  hath  by  his  said  Letters  Pat- 
tents, graunted,  declared  and  ordained  that  such  principall  Governors  as 
from  tyme  to  tyme  should  dulie  and  lawfullie  be  authorized  and  appointed 
in  manner  and  forme  as  by  the  said  Letters  Pattents  be  expressed,  should 


COMMISSION  TO  LORD  LA    WARR.  209 

in  cases  of  Rebellion  and  Muteny  have  power  and  authoritie  to  use  and 
exercise  Marshall  Law  in  as  large  and  ample  manner  and  forme  as  his 
Majesties  Lieftenants  in  his  highnes  counties  within  the  Realme  of  Eng- 
land, have  or  ought  to  have,  by  force  of  their  Commissions  of  Lieftenan- 
cie,  as  in  and  by  the  said  Letters  Pattents  amongst  other  things  in  them 
contained  more  at  large  doth  and  may  apeare. 

Now  Know  yee  that  We  his  Majesties  said  Councell  upon  good 
advise  and  deliberation  and  upon  notice  had  of  the  Wisedome,  valour, 
circumspection,  and  of  the  virtue  and  especiall  sufificiencie  of  the  Right 
Honourable  Sir  Thomas  West,  Knight  Lord  La  Warr  to  be  in  princi- 
pall  place  of  authoritie  and  Government  in  the  said  CoUonie,  and  finding 
in  him  the  said  Lord  La  Warr  propensness  and  wiUingness  to  further  and 
advance  the  good  of  the  said  Plantation,  by  virtue  of  the  said  authoritie 
unto  us  given  by  the  said  Letters  Pattents  have  nominated,  made,  or- 
dained and  apointed  and  by  these  presents  do  nominate  make  ordaine  and 
apointe  the  said  Sir  Thomas  West,  Knight  Lord  La  Warr  to  be  principall 
Governor,  Commander  and  Captain  Generall  both  by  Land  and  Sea  over 
the  said  Collonie  and  all  other  Collonies  planted  or  to  be  planted  in  Vir- 
ginia or  within  the  limitts  specified  in  his  Majesties  said  Letters  Pattents 
and  over  all  persons,  Admiralls  Vice-Admiralls  and  other  Officers  and 
Commanders  whether  by  sea  or  land  of  what  quallitie  soever  for  and  dur- 
ing the  term  of  his  natural  life,  and  do  hereby  ordaine  and  declare  that 
he  the  said  Lord  La  Warr  during  his  life  shall  be  stiled  and  called  by  the 
name  and  title  of  Lord  Governor  and  Captain  General  of  Virgi?iia  and 
of  the  Collonie  and  Collonies  there  now  planted  or  to  be  planted,  and  do 
by  these  presents  revoke  and  change  all  and  all  manner  of  former  con- 
stitutions, ordinancies,  apointments  and  authorities  by  us  his  Majesties 
said  Councell  or  any  of  us  given,  made,  nominated,  constituted  or- 
dained or  apointed  to  any  to  be  President,  Chief  Governor  or  principal 
Officer  in  Virginia  aforesaid  or  to  use  or  exercise  the  authority  jurisdic- 
tions or  offices  herein  limitted  graunted  or  apointed  or  mentioned  to  be 
graunted  or  apointed  to  the  said  Lord  La  Warr  and  of  and  from  the  same 
and  everie  of  them  do  hereby  discharge  all  and  everie  persone  and  per- 
sones  heretofore  authorized,  nominated  or  apointed  to  use  execute  or 
exercise  the  same  or  any  of  them  and  that  the  said  Lord  La  Warr,  Lord 
Governor  and  Captain  Generall  as  is  aforesaid  in  all  cases  of  Rebellion 
and  Mutenie  happening  or  which  shall  happen,  either  within  the  pre- 
cincts of  Virginia  limited  or  specified  in  his  Majesties  said  Letters  Pat- 
tents or  in  the  present  intended  passage  and  expedition  thither,  shall 
have  such  power  and  authoritie  to  use,  exercise  and  put  in  execution 

14 


210  APPENDIX  A. 

Marshall  Law  as  in  the  said  Letters  Pattents  is  mentioned,  and  upon  all 
other  cases  as  well  Capitall  as  Criminall  and  upon  all  other  accidents  and 
occasions  there  happening,  to  rule,  punish,  pardone  and  governe  accord- 
ing to  such  directions  orders  and  instructions  as  by  his  Majesties  said 
Councell,  or  the  greater  part  thereof  here  resident  in  England  shall  from 
tyme  to  tyme,  be  in  that  behalf  made  and  given  with  the  consent  of 
Henrie  Earle  of  Southampton,  William  Earl  of  Pembroke,  Philip  Earle 
of  Mountgomerie,  Robert  Lord  Viscount  Lisle,  Theophilus  Lord  Howard 
of  Walden,  Edmond  Lord  Sheffield  and  George  Lord  Carew,  or  any  two 
of  them,  and  in  defect  of  such  informations  he  the  said  Lord  Governor 
and  Captain  Generall  shall  and  may  rule  and  governe  by  his  owne  dis- 
cretion or  by  such  lawes  for  the  present  government  as  he  with  such 
councell  as  he  shall  take  unto  him,  or  as  he  the  said  Lord  Governor 
and  Captain  Generall  shall  think  fitt  to  make  and  establish  for  the  ad- 
vancement of  the  publique  weale  and  good  of  the  said  Collonie  with 
as  full  and  absolute  power  authority  and  commaund  as  either  we  by 
virtue  of  his  Majesties  said  Letters  Pattents  have  power  to  derive  and 
graunt  to  him  or  as  he  the  said  Lord  Governor  and  Captain  Generall 
by  his  Majesties  said  Letters  Pattents  in  any  sort  is  authorized  to  use 
and  exercise. 

And  Further  Know  yee  that  we  his  Majesties  said  Councell  by 
these  presents  as  much  as  in  us  lieth  do  give  and  graunt  full  power 
and  authoritie  to  the  said  Lord  Governor  and  Captain  Generall,  of  his 
free  will  and  pleasure  to  call  unto  his  assistance  and  to  choose  for 
Councellors  such  and  so  many  persons  of  the  said  Collonie  now  planted 
in  Virginia  or  hereafter  to  be  planted  there  as  he  shall  think  fitt  and 
meete,  and  to  displace  such  from  being  Councellors  whose  demerit  he 
shall  conceive  to  give  cause  thereof.  And  likewise  to  place  for  Coun- 
cellors and  Officers  such  persons  as  he  from  tyme  to  tyme  during  his 
government  there  shall  think  fitt.  And  also  at  all  tymes  at  his  will  and 
pleasure,  to  discharge,  displace  and  put  from  the  execution  of  all,  every 
or  any  such  Officer  or  Officers  as  he  shall  think  meete,  such  personns  as 
now  be  there  in  office,  or  which  shall  hereafter  be  in  any  office  in  the  said 
Collonie  now  planted  or  hereafter  to  be  planted  in  Virginia  during  his 
life  as  he  the  said  Lord  Governor  and  Captain  Generall  shall  deeme 
worthie  to  be  displaced  or  put  from  any  such  his  office  or  place,  which 
any  such  person  doth  or  shall  so  hould  :  The  Office  of  Lieftennant  Gov- 
ernor, Marshall,  Admirall  and  Vice-Admirall,  and  all  governors  of  Prov- 
inces and  Townes  which  shalbe  made  or  constituted  by  us,  the  said 
Councell  resident  here  in  England,  allwaies  excepted,  which  said  officers 


COMMISSION  TO  LORD  LA    WARR.  211 

and  governors  so  excepted,  it  shall  and  may  nevertheles  be  lawfull  to 
and  for  the  said  Lord  Governor  and  Captain  Generall  to  suspend  and 
put  from  the  execution  of  all  and  everie  their  said  office  and  offices  and 
governments,  and  others  in  their  places,  offices  and  governments  to  con- 
stitute and  apoint  at  his  pleasure,  untill  further  order  shalbe  therein  taken 
by  us  his  Majesties  said  Councell  resident  here  in  England.  And  in 
like  manner  we  his  Majesties  said  Councell,  Treasurer  and  Companie  do 
by  these  presents  as  much  as  in  us  lieth,  give  and  graunte  full  power  and 
authoritie  to  the  said  Lord  Governor  and  Captain  Generall  at  his  will 
and  pleasure  from  tyme  to  tyme,  and  at  all  tymes  hereafter  during  his 
life,  by  or  with  any  office  or  place  in  Virginia  aforesaid,  for  increase  of 
any  man's  person,  by  bill  of  adventure  for  land,  onehe  not  to  exceede  a 
four  fould  proportion  of  the  first  rate  of  his  adventure,  or  of  the  Office 
which  he  shall  beare,  unless  the  same  be  by  expresse  consent  of  the  said 
Councell  and  Companie,  here  resident,  of  Virginia  and  under  their  Seale, 
to  reward  and  recompense  the  good  and  well  deservinge  of  any  person 
or  personns  what  soever  under  his  Government  according  as  he  the  said 
Lord  Governor  and  Captain  Generall  shall  in  his  wisedome  and  discre- 
tion think  such  persons  to  have  merited  and  deserved.  To  have,  hould, 
use  and  exercise  the  stile  and  title  of  Lord  Governor  and  Captain 
Generall  of  Virginia  and  all  other  the  jurisdictions,  powers  and  authori- 
ties aforesaid,  to  him  the  said  Sir  Thomas  West,  Knight,  Lord  La  Warr, 
for  and  during  the  tearme  of  his  naturall  life,  without  any  revocation  or 
restraint  by  us  the  said  Councell  or  any  of  us  in  any  wise  to  be  made 
otherwise  than  before  is  excepted  :  — 

And  Know  yee  further  that  we  his  Majesties  said  Councell  have 
made,  ordained  and  constituted  and  by  these  presents  do  make,  ordaine 
and  constitute  the  said  Lord  La  Warr,  Admirall  of  the  whole  Fleete  of 
such  shipps  and  other  vessels  as  are  apointed  and  by  the  Grace  of  God 
shall  be  imploied  and  passe  in  this  present  intended  expedition  to  Vir- 
ginia aforesaid,  giving  him  the  said  Lord  La  Warr  full  power  and  au- 
thoritie to  exercise  and  put  in  execution  in  all  cases  and  upon  all 
occasions  and  accidents,  upon  all  persons  passing  in  the  said  Fleete 
full  and  absolute  power,  authoritie  and  command  in  this  behalf  as  by 
his  Majesties  Letters  Pattents  we  or  any  of  us,  have  power  to  derive  and 
gi"aunt  unto  him  :  And  for  the  more  securitie  and  safetie  as  well  of  the 
said  Fleete  in  their  present  passage  as  of  the  said  Collonie  and  Planta- 
tion We  his  Majesties  said  Councell  by  virtue  of  the  authoritie  unto  us 
in  this  behalf  given  or  graunted  Do  hereby  give  full  power  and  authoritie 
to  the  said  Lord  La  Warr,  at  all  tymes  during  his  naturall  life,  to  en- 


212  APPENDIX  A. 

counter,  expulse,  repell  and  resist  by  force  of  Arms,  and  by  all  wayes 
and  meanes  whatsoever,  all  manner  of  persons  that  shall  at  any  time 
either  by  sea  or  land,  enterprise  or  attempt  the  destruction,  invasion, 
hurt,  detriment  or  anoyance  of  the  said  Fleete,  Collonies,  or  Planta- 
tion. We  also  hereby  and  in  his  Majesties  name  strictlie  command  and 
require,  all  and  everie  person  and  persons  now  inhabiting  or  which 
shall  hereafter  inhabite  within  the  precincts  of  the  said  Collonie,  and 
which  shall  passe  in  the  said  Fleete  thitherward,  in  all  things  and  upon 
all  occasions,  to  yield  unto  the  said  Lord  Governor  and  Captain  Generall 
all  due  honour  and  respect,  and  dulie  and  willinghe  to  obey  and  execute 
the  directions  and  commands  of  the  said  Lord  Governor  and  Captain 
Generall  according  to  the  authoritie  to  him  limited  and  given,  as  also  to 
be  unto  him  upon  all  occasions,  to  their  powers  and  habilities,  aiding 
and  assisting,  as  they  will  to  their  utmost  perills  answere  the  contrary. 

And  Lastlie  We  his  Majesties  said  Councell  for  us,  and  We  the  said 
Treasurer  and  Companie  respectivelie,  by  these  presents  as  much  as  in 
us  or  any  of  us  lieth  or  shalbe,  do  respectivelie  promise  and  graunt  to 
the  said  Lord  La  Warr,  Lord  Governor  and  Captain  Generall  of  Vir- 
ginia, that  if  it  shall  hereafter  apeare  to  his  Lordship  that  it  shall  be  meet 
for  him  to  have  any  other  Articles  or  Clauses  to  authorise  him  more 
then  in  these  premises  is  mentioned,  to  rule,  governe,  do  or  execute  any 
Act  or  Acts,  thing  or  things,  which  may  tend  to  the  furtherance  or  bene- 
fite  of  the  said  Collonies  or  Plantations,  or  the  good  government  thereof, 
or  the  rewarding  of  any  persons  as  aforesaid,  that  then  upon  notice 
thereof  and  request  made  by  or  from  his  Lordship  :  to  us  the  said 
Councell,  Treasurer  and  Companie,  and  the  successors  of  us  the  said 
Councell,  Treasurer  and  Companie,  for  the  tyme  being.  We  his  Majes- 
ties said  Councell,  Treasurer  and  Companie  for  the  tyme  being,  shall 
and  will,  from  time  to  tyme  do  our  utmost  Indeavour  and  as  much  as  in 
us  or  any  of  us  lieth,  by  graunt  or  otherwise  to  enlarge  the  same  and  to 
satisiie  his  Lordships  reasonable  desire  therein.  And  lastlie,  we  his 
Majesties  said  Councell  do  condescend  and  agree,  to  and  with  the  said 
Sir  Thomas  West,  Knight,  Lord  La  Warr,  that  in  cases  of  necessitie,  or 
upon  any  other  occasion  which  shall  happen,  he  may  withdraw  himself 
from  being  resident  with  or  in  the  said  Collonie  or  Collonies  in  Virginia 
and  that  it  shall  and  may  be  lawfull  to  and  for  him  the  said  Lord  La 
Warr,  to  nominate,  make,  constitute,  depute  and  apoint,  such  person  or 
persons  as  he  shall  think  meet  to  be  his  Deputie  or  Deputies  and  Lief- 
tennant  Governor  in  his  absence  to  rule  and  governe  the  said  Collonie 
and  Collonies  in  Virginia,  for,  by  and  during  the  space  of  one  whole 


COMMISSION  TO  LORD  LA    WARE.  213 

year  next  after  the  said  Lord  La  Warr  his  being  absent  from  the  Col- 
lonie  and  his  deputing  of  any  person  or  personns  so  to  be  by  his  Lord- 
ship constituted,  deputed  or  apointed,  for  no  longer  tyme,  unlesse 
authoritie  and  further  warrant  therein  shalbe  given  unto  such  deputie 
and  deputies  by  and  from  us  his  Majesties  said  Councell,  under  our 
Councell  Seale  and  sent  to  him  as  a  warrant  for  his  or  their  continueing 
Deputie  or  Deputies  or  Lieftennant  Governor  over  the  said  Collonie  or 
CoUonies :  which  Deputie  or  Deputies  so  to  be  made,  constituted  or 
apointed  by  the  said  Lord  La  Warr  for  the  space  of  such  whole  yere  as 
aforesaid  shalbe  in  the  absence  of  the  said  Lord  La  Warr  Governor  of 
the  said  Collonie  or  Collonies,  and  shall  have  such  power  and  authoritie 
by  and  with  all  our  consents,  agreements  and  apointments  to  do  and 
execute  all  things  touching  the  said  Government,  as  the  said  Lord  La 
Warr  shall  unto  such  Deputie  or  Deputies,  assigne,  limitt  and  appoint. 

In  wittness  wherof  we  his  Majesties  said  Councell,  apointed  by  his 
Majesties  Letters  Pattents,  for  so  much  in  these  presents  as  concerneth 
us  and  our  graunt  herein  mentioned,  by  mutuall  consent  and  agreement 
have  sett  hereunto  our  hands  and  the  seale  of  us  the  said  Councell :  And 
likewise  We  the  said  Treasurer  and  Company  for  so  much  in  these  pres- 
ents as  concerneth  us  and  our  graunts  herein  mentioned,  by  mutuall 
consent  and  agreement  have  hereunto  sett  the  seale  of  Our  Corporation. 

Given  at  his  Majesties  cittie  of  London  aforesaid  the  28""  day  of  Feb- 
ruary in  the  7*  yere  of  his  Majesties  raigne  of  England,  France  and 
Ireland  and  of  Scotland  the  43. 

Southampton.  Pembroke. 

Philip,  Mountgomerie.  Theophilus  Howard. 

Edward  Cecill.  William  Waad. 

Walter  Cope.  Edward  Conoway. 

Thomas  Smith.  Baptist  Hicks. 

DUDLIE    DiGGS,  E.OBART   MaNSILL. 

Christopher  Brook.  William  Romney. 


214  APPENDIX  A. 

2.   COMMISSION  TO   SIR  WILLIAM   BERKELEY   AS    GOVER- 
NOR OF  VIRGINIA,   1641. 

[From  Rymer,  Fcedera,  xx.  484.] 

De  Constitutione  Giibernatoris  &'  Concilii  pro  Virginia. 
Charles,  by  the  Grace  of  God,  King  of  England^  Scotland,  France  and 
Ireland,  Defender  of  the  Faith,  &>c. 

To  our  trusty  and  welbeloved, 

Sir   William  Berkeley  Knight,   one  of  the  Gentlemen  of  our  Privy 
Chamber, 

Sir  Francis  Wyat  Knight, 

y^ohn  West  Esquire, 

Richard  Kempe  Esquire, 

Samuel  Matthews  Esquire, 

Nathaniel  Littleton  Esquire, 

Christopher  Wormely  Esquire, 
William  Pierce  Esquire, 

Roger  Windgate  Esquire, 

yohn  Hopson  Esquire, 

Thomas  Pawlet  Esquire, 

George  Minify  Esquire, 

Henry  Brown  Esquire, 

William  Brocas  Esquire, 

Argol  Yardley  Esquire, 

Thomas  Pettus  Esquire, 
;   Thomas  Willoughhy  Esquire, 

Richard  Bennet  Esquire, 

And  Hicmfrey  Higgeson  Esquire,  Greeting. 

Whereas,  by  our  Letters  Patents  under  our  Great  Seal  of  England, 
bearing  date  the  eleventh  day  of  January,  in  the  fourteenth  year  of  our 
Reign,  for  the  better  maintenance  and  government  of  the  Colony  and 
Plantation  in  Virginia,  [we]  did  nominate  and  appoint  the  said  Sir 
Francis  Wyatt  Knight,  to  be  the  then  present  Governor  thereof,  and 
such  other  persons,  as  We  in  and  by  Instructions  under  our  Sign  Manual, 
had  then  named  and  assigned,  or  thenafter  should  name  and  assign,  to 
be  the  then  present  Counsel,  of  and  for  the  said  Colony  and  Plantation 
of  Virginia  ;  Granting  unto  him  or  them,  and  the  greater  number  of  them, 
full  power  and  authority  to  perform  and  execute  the  Places,  Powers  and 
Authorities,  incident  to  a  Governor  and  Counsel  of  Virginia  respectively. 


COMMISSION  TO  BERKELEY.  21 S 

as  by  the  same  Letters  Patents  of  Commission,  more  at  large  may  appear ; 
Which  said  Commission  and  all  Places,  Powers  and  Authorities,  Matters 
and  Things  thereby  granted  or  mentioned  to  be  granted,  We  do  to  all 
Intents  and  Purposes,  fully  and  absolutely  revoke,  determine  and  make 
void  by  these  Presents ;  Nevertheless,  We  being  willing  to  give  all  en- 
couragement to  that  Plantation,  and  minding  that  our  Colony  and  People 
there,  should  be  regulated  as  well  in  Ecclesiastical  as  Temporal  Govern- 
ment, according  to  the  Laws  and  Statutes  of  our  Realm  of  Englafid^ 
which  We  purpose  to  have  established  there,  and  being  resolved  not  to 
impeach  or  hinder,  but  to  promote  and  advance  the  particular  Interests 
of  such  of  the  Planters  there,  as  shall  conform  themselves  as  loyal  Sub- 
jects, in  all  due  Obedience  to  our  Government,  and  to  discourage  such, 
as  shall  be  found  Disturbers  of  the  Peace  and  Impugners  of  the  said 
Colony. 

Know  ye  therefore,  that  We  for  the  effecting  of  the  Premisses,  and  the 
better  ordering,  governing  and  managing,  of  the  Affairs  of  the  said  Colony 
and  Plantation  in  Virgi?na,  and  of  the  Persons  now  inhabiting,  and  which 
shall  hereafter  inhabit  there,  until  We  shall  find  some  more  convenient 
means,  upon  mature  Advice,  to  give  more  ample  Directions  for  the  same  ; 
And  reposing  assured  Trust  and  Confidence,  in  the  Understanding,  Care, 
Fidelity,  Experience  and  Circumspection,  of  you  the  said 

Sir  William  Berkeley, 

Sir  Francis  Wyatt, 

John  West, 

Richard  Kemp, 

Samuel  Matthews, 

Nathaniel  Littleton^ 

Christopher  Wormley, 

William  Pierce, 

Roger  Windgate, 

John  Hopson, 

Thomas  Paulet, 

George  Minify, 

Henry  Brown, 

William  Brocas, 

Argol  Yardly, 

Thomas  Petttis, 

Thomas  Willoughby, 

Richard  Bennet, 

And  Humfrey  Higgeson, 


2l6  APPENDIX  A. 

Have  nominated  and  assigned,  and  by  these  Presents  do  nominate  and 
assign  you  the  said  Sir  William  Berkeley,  to  be  the  present  Governor, 
and  you  the  said  Sir  Francis  Wyatt,John  West,  Richard  Kemp,  Samuel 
Matthews,  Nathaniel  Littleton,  Christopher  Wormeley,  William  Peirce, 
Roger  Windgate,  John  Hopson,  Thomas  Paulet,  George  Minify,  Henry 
Brow7i,  William  Brocas,  Argol  Yardley,  Thomas  Pettus,  Thomas  Wil- 
loughby,  Richard  Bennet,  and  Humfrey  Higgeson,  to  be  the  present 
Counsel  of  and  for  the  said  Colony  and  Plantation  in  Virginia,  giving,  and 
by  these  Presents  granting  unto  you  and  them,  and  the  greater  number 
of  you  and  them  respectively,  full  Power  and  Authority,  to  perform  and 
execute  the  Places,  Powers,  and  Authorities,  incident  to  a  Governor  and 
Counsel  of  Virginia  respectively,  and  to  direct  and  govern,  correct  and 
punish  our  Subjects,  now  inhabiting  or  being,  or  which  hereafter  shall 
inhabit  or  be  in  Virginia^  or  in  the  Isles,  Ports,  Havens,  Creeks  or  Ter- 
ritories thereof,  either  in  time  of  Peace  or  War,  and  to  order  and  direct 
the  Affairs,  touching  or  concerning  that  Colony  or  Plantation,  in  those 
Foreign  Parts  only,  and  to  execute  and  perform  all  and  every  other  mat- 
ters and  things,  concerning  that  Plantation,  as  fully  and  amply,  as  any 
other  Governor  and  Counsel  resident  there,  at  any  time,  within  the  space 
of  ten  Years  now  last  past,  had  or  might  perform  or  execute. 

And  because,  by  the  experience  of  industrious  and  well-experienced 
Men,  the  limits  and  bounds  of  the  said  Plantation  may  be  augmented, 
and  Trade  and  Commerce,  for  the  maintenance  and  enriching  of  the 
Inhabitants  there,  from  time  to  time  residing,  much  advanced  ;  Our  will 
and  pleasure  is,  and  We  do  by  these  Presents  give  and  grant  unto  you 
the  said  Sir  William  Berkeley,  and  the  rest  of  you  our  said  Counsel 
beforementioned,  or  any  four  or  more  of  you,  (whereof  the  Governor  for 
the  time  being  to  be  always  one)  full  Power  and  Authority,  to  grant  one 
or  more  Commission  or  Commissions,  unto  any  of  our  Subjects,  address- 
ing themselves  unto  our  said  Governor  and  Counsel,  for  the  discovery 
of  the  same  Country  and  Ports,  Bounds,  Limits  and  Extents  thereof; 
And  also  for  the  finding  out,  what  Trades  shall  be  most  necessary  to  be 
undertaken,  for  the  benefit  and  advantage  of  the  said  Colony  and  Plan- 
tation, and  the  good  of  the  People  inhabiting,  or  which  shall  inhabit  there, 
both  by  Sea  and  Land ;  And  further,  upon  all  occasions  as  you  or  any 
four  or  more  of  you  (whereof  you  the  Governor  for  the  time  being  to  be 
always  one)  shall  see  fit,  to  send  out  Forces,  for  the  subduing  of  the  In- 
dia?is  and  Savages  of  the  said  Country ;  And  likewise  to  make  War  and 
Peace  with  them,  in  all  such  cases  as  may  stand  with  the  safety  of  the 
said  Colony  and  our  Honour,  keeping  always  sufficient  Forces  for  the 
holding  of  the  places  now  enjoyed. 


COMMISSION  TO  BERKELEY.  21/ 

And  if  it  shall  happen,  you  the  said  Sir  William  Berkley  to  die,  or 
in  case  of  your  urgent  occasions  (allowed  by  four  or  more  of  our  said 
Counsel  there)  shall  call  you  thence  at  any  time,  then  our  Will  and 
Pleasure  is,  and  We  do  hereby  give  and  grant  to  you  the  said  Sir 
William  Berkeley,  and  the  rest  of  the  Commissioners  before  named,  or 
the  greater  number  of  you,  full  Power  and  Authority,  upon  the  Death  or 
in  the  absence  of  you  the  said  Sir  William  Berkeley.,  to  elect,  nominate 
and  assign  one  of  our  said  Counsel,  to  be  the  present  Governor  for  the 
said  Colony  and  Plantation  in  Virginia,  and  so  to  do  from  time  to  time, 
as  often  as  the  case  shall  require ;  And  We  do  by  these  Presents  assign 
and  appoint,  such  Person,  as  by  you  our  said  Counsel  or  the  greater 
number  of  you,  from  time  to  time  shall  be  elected  and  chosen  to  be  the 
present  Governor,  and  the  said  Governor  and  the  rest  of  our  Commis- 
sioners, to  be  our  present  Counsel  for  the  said  Colony  or  Plantation  for 
Virgifiia;  Giving  and  by  these  Presents  granting  unto  you,  and  the 
greater  number  of  you  respectively,  full  Power  and  Authority,  to  execute 
and  perform  the  Places,  Powers  and  Authorities,  of  a  Governor  and 
Counsel  of  Virginia  respectively,  in  manner  and  form  aforesaid  ;  Never- 
theless our  Will  and  Pleasure  is,  that  you  and  every  of  you,  from  time  to 
time  proceed,  according  to  such  instructions  as  you  or  they,  do  now  or 
hereafter  shall  receive  from  us,  or  the  Lords  and  others  of  our  Privy 
Council  here ;  And  that  you,  our  said  Governor  and  Counsel  there  for 
the  time  being,  shall  be  from  time  to  time  subordinate,  subject  and 
obedient,  to  the  Lords  Commissioners  and  Committees  here  for  our 
Plantations,  for  the  time  being,  touching  the  present  Government  of  that 
Plantation,  and  according  to  such  Orders  and  Directions,  as  they  from 
time  to  time  shall  conceive  and  set  down. 

Provided  always,  and  our  express  Will,  Pleasure  and  Commandment 
is,  and  We  do  hereby  give  full  Power  and  Authority  unto  you  the  said 
Sir  William  Berkeley,  and  such  other  Person  as  shall  be  Governor  there, 
for  the  time  being,  according  to  the  true  intent  of  these  Presents,  and 
our  intention  herein  before  declared,  that  upon  the  death  or  discontinu- 
ance of  any  one  of  our  Counsel  there,  you  the  said  Sir  William  Berkeley, 
and  such  other  Person  as  shall  be  Governor  there,  and  our  Counsel  there 
for  the  time  being,  or  the  greater  part  of  them,  shall  elect,  nominate  and 
appoint,  such  other  sufificient,  able  and  discreet  Person  or  Persons,  in 
the  room  or  place  of  him  or  them  so  dying  or  discontinuing,  during 
the  continuance  of  this  our  present  Commission  ;  And  that  you  shall 
from  time  to  time,  return  and  certify  the  Names  and  Qualities  of  such 
Person  or  Persons,  so  by  you  to  be  nominated  and  appointed,  in  the 


2l8  APPENDIX  A. 

room  of  such  of  our  Counsel,  there  dying  or  discontinuing  as  aforesaid,  unto 
Us  and  the  Lords  and  others  our  Commissioners  for  Plantations  here, 
to  the  end,  such  Person  or  Persons  to  be  by  you  and  them  so  elected, 
nominated  and  appointed,  in  manner  aforesaid,  may  receive  allowance 
or  disallowance,  of  such  their  election  or  choice,  in  the  room  of  such  of 
our  Counsel  there,  as  shall  either  die  or  discontinue,  as  there  shall  be 
cause,  or  to  us  or  our  said  Commissioners  for  Plantations  here,  shall 
seem  meet. 

And  our  further  Will  and  Pleasure  is,  That  you  the  said  Sir  William 
Berkeley  and  Richard  Kemp,  before  you  or  either  of  you  depart  out  of 
this  our  Kingdom  of  Efigland,  shall  take  such  Oaths,  before  the  Lord- 
Keeper,  Lord  Privy  Seal  or  either  of  them,  for  this  our  Kingdom,  as  the 
Governor  and  Counsel  for  the  said  Plantation  and  Colon)',  have  hereto- 
fore taken,  and  after  such  Oaths,  by  you  the  said  Sir  William  Berkeley 
and  Richard  Ke77ip  so  taken  as  aforesaid,  We  do  hereby  charge  and 
command  you,  to  administer  unto  the  said  Sir  Francis  Wyatt  Knight, 
John  West,  Sajtiuel  Matthews^  Nathaniel  Littleton,  Christopher  Wormeley, 
Williajn  Peirs,  Roger  Windgate,  John  Hopton,  Thomas  Paulet,  George 
Minify,  Henry  Brown,  William  Brocas,  Argal  Yardley,  Thomas  Pettiis, 
Thomas  Willoiighby,  Richard  Bennet,  and  Humfrey  Higgeson,  and  every 
of  them,  the  like  Oath  upon  the  Holy  Evangelist,  as  you  or  either  of  you 
have  already  taken,  as  Counsellor,  of  or  for  the  said  Colony  or  Planta- 
tion ;  Willing  and  requiring  you  and  them,  to  be  diligent  and  attendant 
in  the  execution  of  this  our  Service  and  Commandment,  and  also  re- 
quiring all  our  loving  Subjects  there,  to  be  directed  and  governed  by  you, 
or  the  greater  number,  of  you  and  them  our  Commissioners  aforesaid,  in 
all  things,  according  to  the  intention  and  true  meaning  of  these  Presents  ; 
And  lastly,  our  Will  and  Pleasure  is,  that  this  our  Commission  shall 
continue  in  force,  until  We,  by  some  other  Writing  under  our  Signet, 
Privy  Seal,  or  Great  Seal  of  England,  shall  signify  our  Pleasure  to  the 
contrary. 

In  Witness  6^'r. 

Witness  our  self  at  Westminster^  the  ninth  day  of  Augtisf. 

Per  ipsum  Regem. 


INSTRUCTIONS  TO  BERKELEY.  219 


3.    INSTRUCTIONS   TO   SIR  WILLIAM  BERKELEY  AS 
GOVERNOR   OF   VIRGINIA,   [1641I. 

[From  the  MacDonald  Papers  (pp.  376-3S8),  in  the  Virginia  State  Library; 
printed  in  the   Virginia  Magazine  of  History  and  Biography,  ii.  281.]* 

Instrnctio7is  to  Sir  William  Berkeley,  Knf.,  one  of  the  Gentlemefi  of 
our  Privy  Chamber,  Governor  of  Virginia,  and  to  the  Cotmcil  of  State 
there  : 

That  in  the  first  place  you  be  careful!  Almighty  God  may  be  duly  and 
daily  served  according  to  the  Form  of  Religion  established  in  the  church 
of  England  both  by  yourself  and  all  the  people  under  your  charge^  which 
may  draw  down  a  blessing  on  all  your  endeavours.  And  let  every  con- 
gregation that  hath  an  able  minister  build  for  him  a  convenient  Par- 
sonage House,  to  which  for  his  better  maintenance  over  and  above  the 
usual  pension  you  lay  200  acres  of  Gleable  lands,  for  the  clearing  of  that 
ground  every  of  his  Parishoners  for  three  years  shall  give  some  days 
labours  of  themselves  and  their  Servants,  and  see  that  you  have  a  special 
care  that  the  Glebe  Land  be  sett  as  neare  the  Parsonage  House  as  may 
be  and  that  it  be  of  the  best  conditioned  Land.  Suffer  no  invasion  in 
matters  of  Rehgion  and  be  careful  to  appoint  sufficient  and  conformable 
Ministers  to  each  congregation,  that  you  chatechise  and  instruct  them  in 
the  grounds  and  principles  of  Religion. 

2.  That  you  administer  the  Oaths  of  Allegiance  and  Supremacy  to 
all  such  as  come  thither  with  intention  to  plant  themselves  in  the  coun- 
try, which  if  he  shall  refuse  he  is  to  be  returned  and  shipped  from  thence 
home  and  certificate  made  to  the  Lords  of  the  Councill,  the  same  oath 
is  to  be  administered  to  all  other  persons  when  you  shall  see  it  fitt  as 
Mariners,  Merchants  &c.  to  prevent  any  danger  of  spyes. 

3.  That  Justice  be  equally  administered  to  all  his  Majesty's  subjects 
there  residing  and  as  neere  as  may  bee  after  the  forme  of  this  Realm  of 
England  and  vigilant  care  to  be  had  to  prevent  corruption  in  officers 
tending  to  the  delay  or  perverting  of  Justice. 

4.  That  you  and  the  Councellors  as  formerly  once  a  year  or  oftener, 
if  urgent  occasion  shall  require,  Do  summon  the  Burgesses  of  all  and 
singler  Plantations  there,  which  together  with  the  Governor  and  Coun- 
cill makes  the  Grand  Assembly,  and  shall  have  Power  to  make  Acts  and 
Laws  for  the  Government  of  that  Plantation  correspondent,  as  near  as 

*  Reprinted  by  permission  of  the  Editor. 


220  APPENDIX  A. 

may  be,  to  the  Laws  of  England,  in  which  assembly  the  Governor  is  to 
have  a  negative  voice,  as  formerly. 

[5.]  That  you  and  the  Councill  assembled  are  to  sett  down  the  fittest 
Months  of  the  Quarterly  meeting  of  the  Councill  of  State,  whereas  they 
are  to  give  their  attendance  for  one  and  consult  upon  matter  of  Councill 
and  State  and  to  decide  and  determine  such  Causes  as  shall  come  be- 
fore them,  and  that  free  access  be  admitted  to  all  Suitors  to  make  known 
their  particular  grievances,  being  against  what  persons  So  ever  wherein 
the  Governor  for  the  time  being,  as  formerly,  is  to  have  but  a  casting 
voyce  if  the  number  of  the  councellors  should  be  equally  divided  in 
opinion,  besides  the  Quarterly  Meeting  of  the  Council  it  shall  be  lawful 
for  you  to  summon,  from  time  to  time.  Extraordinary  meetings  of  the 
Councill  according  to  emergent  occasions. 

6.  In  case  there  shall  be  necessary  cause  to  pr'ceed  against  any  of 
the  Councill  for  their  own  persons  they  are  in  such  cases  to  be  sum- 
moned by  you,  the  Governor,  to  appear  at  the  next  Sessions  of  the 
Councill,  holden  there  to  abide  their  Sensure  or  otherwise,  if  you  shall 
think  it  may  concern  either  the  Safety  or  quiet  of  that  State  to  proceed 
more  speedily  with  such  an  offender.  It  shall  be  lawful  to  summon  a 
councill  extraordinary  where  at  six  of  the  councill  at  least  are  to  be  pres- 
ent with  you,  and  by  the  Major  part  if  [of]  their  voyces  comit  my 
councillors  to  safe  custody  or  upon  Bayle  to  abide  the  order  of  the  next 
quarter  councill. 

7.  For  the  ease  of  the  Country  and  quicker  despatch  of  Business 
you,  the  Governor  and  Councill,  may  appoint  in  places  convenient  In- 
ferior Courts  of  Justice  and  Commissioners  for  the  Same,  to  determine 
of  suits  not  exceeding  the  value  of  Ten  Pounds  and  for  the  punishments 
of  such  offences  as  you  and  the  Councill  shall  think  fitt  to  give  them  the 
power  to  hear  and  determine. 

8.  The  Governor  shall  appoint  officers  of  sealing  of  writts  and  sub- 
ponas  and  such  offfcers  as  shall  be  thought  necessary  for  the  execution 
[of]  orders. 

And  — also  the  acts  and  Laws  of  the  Generall  Assembly  and  for  pun- 
ishing any  neglect  or  contempt  of  the  Said  Orders,  Acts  or  Laws  re- 
spectively. And  shall  nominate  and  appoint  all  other  publique  officers 
under  the  degree  of  the  councill,  the  Captain  of  the  Fort,  Master  and 
Surveyor  Generall  excepted. 

9.  That  since  the  Councill  attend  his  Majesties  Service  and  the  pub- 
lique business  to  the  great  hindrance  of  the  private,  that  they  and  ten 
servants  for  every  Councellor  be  exempted  from  all  publique  charges 


INSTRUCTIONS   TO  BERKELEY.  221 

and  contributions  assessed  and  levyed  by  the  Generall  Assembly  (a 
Warr  defensive,  assistance  towards  the  Building  of  a  Town  or  churches 
or  the  ministers'  dues  excepted). 

lo.  To  avoid  all  questions  concerning  the  Estates  of  Persons  dying 
in  Virginia,  it  shall  be  lawfull  as  it  hath  been  used  heretofore  to  make 
probates  of  Wills,  and  default  of  a  Will  to  grant  Letters  of  Administra- 
tion in  ye  Colony  :  Provided  always  that  such  to  whom  Administration 
is  granted  do  put  in  sufficient  security  to  be  accomptable  to  such  per- 
sons in  England  or  elsewhere  unto  whom  of  right  those  Estates  shall 
belong.  And  that  such  Probate  of  Wills  and  Letters  of  Administration 
shall  be  and  abide  in  full  force  and  virtue  to  all  intents  and  purposes. 

It.  To  the  end  the  country  may  be  the  better  served  against  all 
Hostil  Invasions  it  is  requisite  that  all  persons  from  the  age  of  i6  to  60 
be  armed  with  arms,  both  offensive  and  defensive.  And  if  any  person 
be  defective  in  this  kind,  wee  strictly  charge  you  to  command  them  to 
provide  themselves  of  sufficient  arms  within  one  year  or  sooner  if  pos- 
sible it  may  be  done,  and  if  any  shall  faill  to  be  armed  at  the  end  of  the 
Term  limited  we  will  that  you  punish  them  severely. 

12.  And  for  that  Arms  without  the  Knowledge  of  the  use  of  them  are 
of  no  effect  wee  ordain  that  there  be  one  Muster  Master  Generall,  ap- 
pointed by  us  for  the  Colony,  who  shall  4  times  in  the  year  and  oftener  (if 
cause  be)  not  only  view  the  arms,  ammunition  and  furniture  of  every 
Person  in  the  Colony,  but  also  train  and  exercise  the  people,  touching 
the  use  and  order  of  arms  and  shall  also  certify  the  defects  if  any  be 
either  of  appearance  or  otherwise  to  you  the  Governor  and  Councill. 
And  being  informed  that  the  place  is  vacant  by  the  death  of  George 
Dunn  we  do  nominate  and  appoint  our  trusty  and  beloved  John  West, 
Esq.,  being  recommended  unto  us  for  his  sufficiency  and  long  experi- 
ence in  the  country,  to  be  Muster  Master  of  the  said  Colony.  And  for 
his  competent  maintenance  we  will  that  you,  the  Governor  and  Councill, 
so  order  the  business  at  a  General  Assembly  that  every  Plantation  be 
rated  equally  according  to  the  number  of  persons,  wherein  you  are  to 
follow  the  course  practised  in  the  Realm  of  England. 

13.  That  you  cause  likewise  10  Guarders  to  be  maintained  for  the 
Port  at  Point  Comfort.  And  that  you  take  course  that  ye  Capt"  of  ye 
said  Port  have  a  competent  allowance  for  his  services  there.  Also  that 
the  said  ffort  be  well  kept  in  Reparation  and  provided  with  ammunition. 

14.  That  new  Comers  be  exempted  the  ist  yeare  from  going  in  p'son 
or  contributing  to  the  wars  Save  only  in  defence  of  the  place  where  they 
shall  inhabit  and  that  only  when  the  enemies  shall  assail  them,  but  all 


222  APPENDIX  A. 

Others  in  the  Colony  shall  go  or  be  rated  to  the  maintenance  of  the 
war  proportionately  to  their  abilitys,  neither  shall  any  man  be  priviledged 
for  going  to  the  warr  that  is  above  i6  years  old  and  under  60,  respect 
being  had  to  the  quality  of  the  person,  that  officers  be  not  forced  to  go 
as  private  soldiers  or  in  places  inferior  to  their  Degrees,  unless  in  case  of 
supreme  necessity. 

15.  That  you  may  better  avoid  and  prevent  the  treachery  of  the 
savages  we  strictly  forbid  all  persons  whatsoever  to  receive  into  their 
houses  the  person  of  any  Indian  or  to  converse  or  trade  with  them 
without  the  especiall  license  and  warr'  given  to  that  purpose  according 
to  the  commissioner  inflicting  severe  punishment  upon  the  offenders. 

16.  For  preventing  of  all  surprizes  as  well  as  of  the  treacherous 
savages  as  of  any  fforaine  enemy  we  require  you  to  erect  Beacons  in 
severall  partes  of  ye  Countries  by  firing  whereof  the  country  may  take 
notice  of  their  attempts  of  their  Beacons  or  their  watching  them  to  beare 
the  charge  of  the  country  as  shall  be  determined  by  a  Generall  Assembly 
or  otherwise  by  the  shooting  off  3  Pieces  whereby  they  may  take  the 
Alarum  as  shall  be  found  most  convenient. 

1 7.  That  for  raising  of  towns  every  one  [of]  ye  [who]  have  and  shall 
have  a  grant  of  500  acres  of  land,  shall,  within  a  convenient  time,  build 
a  convenient  house  of  brick  of  24  feet  long  and  16  feet  broad  with  a 
cellar  to  it  and  so  proportionately  for  Grants  of  larger  or  lesser  quantity. 
And  the  grounds  and  platforms  for  the  towns  to  be  laid  out  in  such  form 
and  order  as  the  Governor  and  Councill  shall  appoint.  And  that  you 
cause  at  ye  publick  charge  of  ye  country  a  convenient  house  to  be  built 
where  you  and  the  councill  may  meet  and  sitt  for  the  dispatching  of 
publick  affairs  and  hearing  of  causes.  And  because  the  buildings  at 
Jamestown  are  for  the  most  part  decayed  and  the  place  found  to  be 
unhealthy  and  inconvenient  in  many  respects.  It  shall  be  in  the  power 
of  you  and  the  council,  with  the  advice  of  ye  Generall  Assembly,  to 
choose  such  other  seate  for  your  chiefe  Town  and  Residence  of  the 
Governor  as  by  them  shall  be  judged  most  convenient,  retaining  the 
ancient  name  of  James  Town. 

18.  That  you  shall  have  power  to  grant  Patents  and  to  assign  such 
Proportion  of  Land  to  all  adventurers  and  Planters  as  have  been  useful 
heretofore  in  the  like  cases,  either  for  adventurers  of  money,  [or]  Trans- 
portation of  people  thither  according  to  the  orders  of  the  late  company 
and  since  allowed  by  his  Majesty. 

And  that  there  likewise  be  the  same  proportion  of  Fifty  acres  of  land 
granted  and  assigned  for  every  p'son  transported  thither  since  Midsum- 


INSTRUCTIONS   TO  BERKELEY.  223 

mer,  1625.     And  that  you  continue  ye  same  course  to  all  persons  trans- 
ported thither  untill  it  shall  be  otherwise  determined  by  his  Maj'^'. 

19.  Whereas  the  greatest  part  of  the  Land  on  James  River  hath  been 
formerly  granted  unto  particular  persons  or  public  society  but  being  by 
them  either  not  planted  at  all  or  for  many  years  deserted,  divers  planters 
have  by  orders  and  leave  of  the  Governor  and  Councill  of  Virginia  set 
down  upon  these  lands  or  some  part  of  them  which  was  absolutely  neces- 
sary for  the  defence  and  security  of  the  Colony  against  the  Indians,  that 
the  Governor  confirm  those  Lands  unto  the  present  Planters  and  Posses- 
sors thereof.  And  that  the  like  course  be  taken  for  Planting  new  Patents 
in  any  other  places  so  unplanted  and  deserted  as  aforesaid  where  it  shall 
be  found  necessary.  And  in  case  former  proprietors  make  their  claims 
thereunto  that  there  be  assigned  to  them  the  like  quantities  in  any  other 
part  of  the  Colony  not  actually  possessed  where  they  shall  make  choice. 

20.  That  you  call  for  the  Charter  Parties  that  Masters  of  Ships  bring 
along  with  [them]  and  strictly  examine  whether  they  have  truly  p'formed 
the  condicons  of  their  contracts.  And  further,  diligently  to  inquire  and 
examine  whether  they  have  given  sufficient  and  wholesome  food  and 
drink  with  convenient  room  to  the  passengers  during  the  voyage.  And 
that  no  Servants  be  discharged  the  Ships  and  turned  ashore  as  formerly 
untill  their  Masters  have  notice  and  sufficient  time  to  send  for  them. 
And  that  upon  complaint  in  any  of  these  particulars  you  give  such 
redress  as  justice  shall  require. 

21.  That  in  regard  you  may  daily  expect  the  coming  of  a  fforaign 
enemy.  Wee  require  you  soon  after  the  first  landing  that  you  publish 
by  proclamation  throughout  the  Colony  that  no  person  whatsoever  upon 
the  arrival  of  any  ships  shall  dare  to  go  on  board  without  ye  express 
warr'  from  you  the  Governor  and  councill,  least  by  the  means  they  be 
surprized  to  the  great  prejudice  if  not  the  overthrow  of  the  Plantation. 

22.  And  to  avoid  that  intolerable  abuse  of  Ligrossing  comodities  of 
forestalling  ye  Market,  That  you  require  all  Masters  of  Ships  not  to  break 
Bulk  until  they  arrive  of  Saint  James  City  or  otherwise  without  speciall 
orders  from  ye  the  Governor  and  Councill,  and  that  care  be  taken  that 
there  be  sufficient  Storehouses  and  Warehouses  for  the  same  and  con- 
venient laying  of  their  goods  as  they  shall  arrive. 

23.  That  you  endeavour  by  severe  punishment  to  suppress  drunken- 
ness, And  that  you  be  carefull  ye  great  quantity  of  wine  and  strong 
waters  be  not  sold  into  the  hands  of  those  that  be  likeliest  to  abuse  it, 
but  that  so  near  as  you  can  it  may  be  equally  disposed  of  for  the 
relief  of  ye  whole   Plantation.     And   if  any   Merchant    or  other  for 


224  APPENDIX  A. 

private  Lucre  shall  bring  in  any  corrupt  or  unwholesome  wines,  waters 
or  any  other  Liquors,  such  as  may  endanger  the  health  of  the  people 
and  shall  so  be  found  upon  the  oaths  of  sufficient  p'sons  appointed  for 
the  Tryall  that  the  vessel  be  staved. 

24.  That  especiall  care  be  taken  for  ye  preservacon  of  neat  cattle 
and  that  the  ffemales  be  not  killed  up  as  formerly,  whereby  the  Colony 
will  in  short  time  have  such  plenty  of  victualls,  yt  much  people  may 
come  thither  for  the  setting  up  of  iron  works  and  other  staple  commodi- 
ties. That  you  cause  the  People  to  plant  great  store  of  come,  as  there 
may  be  one  whole  years  provision  before  hand  in  the  Colony  least  in 
relying  upon  one  single  Harvest,  Drought,  Blasting  or  otherwise  they 
fall  into  such  wants  or  Famine  as  formerly  they  have  endured.  And 
that  the  Plow  may  go  and  English  [  ?]  be  sowed  in  all  places  convenient. 
And  that  no  Corne  nor  Cattle  be  sold  out  of  the  Plantation  without 
leave  from  the  Governor  and  Councill. 

25.  That  they  apply  themselves  to  the  Impaling  of  Orchards  and  gar- 
dens for  Roots  and  Fruits  w'ch  that  country  is  so  proper  for,  &  that  every 
Planter  be  compelled  for  every  500  acres  granted  unto  him  to  Inclose 
and  sufficiently  ffence  either  with  Pales  or  Quicksett  and  Dikes,  and  so 
from  time  to  time  to  preserve,  enclosed  and  ffenced  a  quarter  of  an  acre 
of  Ground  in  ye  most  convenient  place  near  his  Dwelling  House  for 
Orchards  and  gardens. 

26.  That  whereas  yo""  Tobacco  falleth  every  day  more  and  more  unto 
a  baser  price,  that  it  be  stinted  into  a  far  less  proportion  then  hath  been 
made  in  ye  last  year  1637,  not  only  to  be  accounted  by  the  plants  but  by 
the  quantity  when  'tis  cured.  And  because  of  Great  Debts  of  the  Planter 
in  Tobacco,  occasioned  by  the  excessive  rates  of  commodities  have  been 
the  stinting  thereof,  so  hard  to  be  put  into  execution  that  the  course 
commanded  by  his  Majesty  in  his  letter  of  the  22nd  of  April,  in  ye  13th 
year  of  His  Reign  for  regulating  ye  debts  of  ye  Colony  be  duly  observed. 
And  also  not  to  suffer  men  to  build  slight  cottages  as  heretofore  hath 
been  there  used.  And  to  remove  from  place  to  place,  only  to  plant 
Tobacco.  That  Trademen  and  Handy  Crafts  be  compelled  to  follow 
their  severall  Trades  and  occupations,  and  that  ye  draw  you  into  Towns. 

27.  We  require  you  to  use  yo'  best  endeav'  to  cause  ye  people  there 
to  apply  themselves  to  the  raising  of  more  staple  commodities  as  Hemp 
and  Flax,  Rope,  Seed  and  Madder,  Pitch  &  Tarr  for  Tanning  of  Hides 
and  Leather.  Likewise  every  Plantation  to  plant  a  proportion  of  Vines, 
answerable  to  their  numbers,  and  to  plant  white  Mulberry  Trees,  and 
attend  Silk  Worms. 


INSTRUCTIONS   TO  BERKELEY,  225 

28.  That  the  Merchant  be  not  constrained  to  take  Tobacco  at  any 
Price,  in  Exchange  for  his  wares.  But  that  it  be  lawfull  for  him  to  make 
his  own  Bargain  for  his  goods  he  so  changeth  notwithstanding  any  Pro- 
clamation here  published  to  the  contrary. 

29.  That  no  merchant  shall  be  suffered  to  bring  in  Ten  pounds  worth 
of  wine  or  strong  waters  that  brings  not  one  hundred  pounds  worth  of 
necessary  commodities  and  so  rateably.  And  that  every  Merchant  that 
deserveth  a  Warr^  for  the  recovery  of  his  Debt  shall  bring  in  a  bill  of 
Parcells  with  the  Rates  of  the  severall  Commodities,  whereby  ye  certainty 
of  the  Debt  and  ye  comodities  thereof  may  ye  better  appeare. 

30.  That  whereas  many  ships  laden  with  Tobacco  and  other  merchan- 
dize from  thence,  carry  ye  same  immed'^  into  fforraine  countries,  whereby 
his  Maj'y  loseth  ye  custom  and  Duties  thereupon  due,  nothing  being 
answered  in  Virginia,  You  bee  very  careful!  that  no  ship  or  other  vessell 
whatsoever  depart  from  thence,  fraighted  with  Tobacco  or  other  com- 
modities w*"  that  country  shall  afford,  before  Bond  w""  sufficient  sureties 
be  taken  to  Ma''"""  use  to  bring  the  same  directly  unto  his  Maj''"^^  Domin- 
ions and  not  else  where,  and  to  bring  a  Bill  of  Lading  from  home  that  the 
staple  of  those  comodities  may  be  made  here,  whereby  his  Maj"'',  after 
so  great  expence  upon  that  Plantation  and  so  many  of  his  subjects  Trans- 
ported thither,  may  not  be  defrauded  of  what  shall  be  justly  due  unto 
him  for  custom  and  other  duties  upon  those  goods.  These  Bonds  to  be 
transmitted  to  ye  Councill  here,  and  from  thence  to  ye  Exchequer,  that 
ye  Delinquent  may  be  proceeded  with  according  to  due  course  of  Law. 

31.  Next  that  you  strictly  and  resolutely  forbid  all  Trade  or  Trucking 
for  any  Merchandize  whatsoever  w*"  any  ship  other  then  His  Maj''*^^  sub- 
jects, that  shall  either  purposely  or  casually  come  to  any  of  y'  plantations. 
And  that  if,  upon  some  unexpected  occasions  and  necessity,  the  Gover- 
nor and  Councill  shall  think  fitt  to  admitt  such  intercourse,  w"*"  we  admitt 
not  but  upon  some  extremity,  That  good  caution  and  Bond  be  taken, 
both  of  the  Master  and  also  the  owner  of  the  said  Tobacco  or  other 
comodities  so  laden  that  they  shall  (Damages  of  the  Sea  Excepted)  be 
brought  to  our  Port  of  London,  there  to  pay  unto  us  such  duties  as  are 
due  upon  the  same. 

And  to  conclude,  That  in  all  things  accordingly  to  y'  best  understand- 
ing ye  endeavour  the  extirpation  of  vice  and  encouragement  of  Religion, 
virtue  and  goodness. 

CHARLES. 


15 


226  APPENDIX  A. 


4.    COMMISSION    TO    FRANCIS    BERNARD   AS    GOVERNOR 
OF    NEW   JERSEY,    1758.     [Draft.] 

[From  the  Public  Record  Office,  Board  of  Trade,  New  Jersey  Papers,  vol.  xvi. 
p.  25  ;  printed  in  New  Jersey  Documents,  ix.  23.] 

I.*   George  the  Second  by  the  Grace  of  God,   of  Great  Britain, 
France  and  Ireland  King,  Defender  of  the  Faith,  &c. 

To  Our  trusty  and  Wellbeloved  Francis  Bernard  Esq'  Greeting :  We 
reposing  especial  Trust  and  Confidence  in  the  Prudence,  Courage  and 
Loyalty  of  you  the  said  Francis  Bernard,  of  our  especial  Grace  certain 
Knowledge  and  meer  motion,  have  thought  fit  to  constitute  and  appoint, 
and  by  these  Presents  do  constitute  and  appoint  you  the  said  Francis 
Bernard  to  be  Our  Cap"  General  and  Governor  in  Chief  in  &  over  Our 
Province  of  Nova  Csesarea  or  New  Jersey,  Viz  :  the  Division  of  East  and 
West  New  Jersey  in  America,  which  we  have  thought  fit  to  reunite  into 
one  Province  and  settle  under  one  entire  Government. 

2.  And  We  do  hereby  require  and  command  you  to  do  and  execute 
all  things  in  due  manner,  that  shall  belong  unto  your  said  Command  and 
the  Trust  We  have  reposed  in  you,  according  to  the  several  Powers  and 
Directions  granted  or  appointed  you  by  this  present  Commission,  and 
the  Instructions  and  Authorities  herewith  given  you,  or  by  such  further 
Powers,  Instructions  and  Authorities  as  shall  at  any  time  hereafter  be 
granted  or  appointed  you  under  Our  Signet  and  Sign  Manual  or  by  Our 
Order  in  Our  Privy  Council,  and  according  to  such  reasonable  Laws  and 
Statutes,  as  now  are  in  Force,  or  hereafter  shall  be  made  and  agreed  upon 
by  you,  with  the  Advice  and  Consent  of  Our  Council  and  the  Assembly 
of  Our  said  Province  under  your  Government,  in  such  manner  and  form 
as  is  hereafter  expressed. 

3.  And  Our  Will  and  Pleasure  is,  that  you  the  said  Francis  Bernard, 
after  the  Publication  of  these  Our  Letters  Patents,  do  in  the  first  Place 
take  the  oaths  appointed  to  be  taken  by  an  Act  passed  in  the  first  Year 
of  Our  late  Royal  Father's  Reign,  entituled.  An  Act  for  the  further  Secu- 
rity of  His  Majesty's  Person  and  Government,  and  the  Siucession  of  the 
Crown  in  the  Heirs  of  the  late  Princess  Sophia  being  Protestants,  and  for 
extinguishing  the  Hopes  of  the  pretended  Prince  of  Wales  and  his  open 
and  secret  Abettors :  As  also  that  you  make  and  subscribe  the  Declara- 
tion mentioned  in  an  Act  of  Parhament  made  in  the  25'.'.'  Year  of  the 

*  The  paragraphs  are  not  numbered  in  the  original ;  the  figures  are  inserted  here 
for  convenience  of  reference. 


COMMISSION  TO   BERNARD.  22/ 

Reign  of  King  Charles  the  Second,  Entituled  an  Act  for  preventing 
Dafigers  which  may  happen  from  Popish  Recusants,  and  likewise  that 
you  take  the  usual  Oath  for  the  due  Execution  of  the  office  and  Trust, 
of  Our  Captain  General  and  Governor  in  Chief  in  and  over  Our  said 
Province  of  Nova  Caesarea  or  New  Jersey ;  as  well  with  regard  to  the 
due  and  impartial  Administration  of  Justice,  as  otherwise ;  and  further 
that  you  take  the  Oath  requir'd  to  be  taken  by  Governors  of  Planta- 
tions to  do  their  utmost,  that  the  several  Laws  relating  to  trade  and  the 
Plantation  be  observed ;  which  said  Oaths  and  Declaration  Our  Council 
in  Our  said  Province  or  any  three  of  the  Members  thereof,  have  hereby 
full  Power  and  Authority,  and  are  required  to  tender  and  administer  unto 
you,  and  in  your  Absence  to  Our  Lieutenand[t]  Governor,  if  there  be 
any  upon  the  Place ;  all  which  being  duly  performed.  You  shall  ad- 
minister to  each  of  the  Members  of  Our  said  Council,  as  also  to  Our 
Lieutenant  Governor,  if  there  be  any  upon  the  Place,  the  Oaths  men- 
tioned in  the  said  Act,  entituled,  an  Act  for  the  further  Security  of  His 
Majesty s  Person  and  Govern7ne?it  and  the  Successioti  of  the  Crown  in  the 
Heirs  of  the  late  Princess  Sophia  being  Protestants,  and  for  extinguishing 
the  hopes  of  the  pretended  Prince  of  Wales  and  his  open  and  secret  Abet- 
tors ;  You  shall  also  cause  them  to  make  and  subscribe  the  aforemen- 
tion'd  Declaration,  and  administer  to  them  the  Oath  for  the  due 
Execution  of  their  Places  and  Trusts. 

4.  And  We  do  hereby  give  and  grant  unto  you  full  Power  and 
Authority  to  suspend  any  of  the  Members  of  Our  said  Council,  from 
sitting,  voting  and  assisting  therein,  if  you  shall  find  just  Cause  for  so 
doing. 

5.  And  if  it  shall  at  any  time  happen,  that  by  the  Death,  Departure 
out  of  Our  said  Province,  or  suspension  of  any  of  Our  said  Councillors  or 
otherwise,  there  shall  be  a  Vacancy  in  Our  said  Council,  any  three  whereof 
We  do  hereby  appoint  to  be  a  Quorum ;  Our  Will  and  Pleasure  is,  that 
you  signify  the  same  unto  us  by  the  first  opportunity,  that  We  may  under 
Our  Signet  and  Sign  Manual  constitute  and  appoint  others  in  their 
Stead. 

6.  But  that  Our  Affairs  may  not  suffer  at  that  Distance,  for  Want  of  a 
due  Number  of  Councillors,  if  ever  it  shall  happen  that  there  be  less  than 
seven  of  them  residing  in  Our  said  Province ;  We  do  hereby  give  &  grant 
unto  you  the  said  Francis  Bernard  full  Power  and  Authority  to  chuse  as 
many  Persons  out  of  the  Principal  Freeholders,  Inhabitants  thereof,  as 
will  make  up  the  full  Number  of  Our  said  Council  to  be  seven,  and  no 
more ;  which  Persons  so  chosen  and  appointed  by  you,  shall  be  to  all 


228  APPENDIX  A. 

intents  and  purposes  Councillors  in  Our  said  Province,  untill  either  they 
shall  be  confirmed  by  Us,  or  that  by  the  Nomination  of  Others  by  Us 
under  Our  Sign  Manual  and  Signet,  Our  said  Council  shall  have  seven 
or  more  Persons  in  it. 

7.  And  We  do  hereby  give  and  grant  unto  You  full  Power  &  Authority, 
with  the  Advice  and  Consent  of  Our  said  Council,  from  time  to  time  as 
need  shall  require,  to  summon  and  call  general  Assemblies  of  the  said 
Freeholders  and  Planters  within  your  Government,  in  manner  and  form 
as  shall  be  directed  in  Our  Instructions,  which  shall  be  given  you  together 
with  this  Our  Commission. 

8.  And  Our  Will  and  Pleasure  is,  that  the  Persons  thereupon  duly 
elected  by  the  Major  Part  of  the  Freeholders  of  the  respective  Counties 
and  Places,  and  so  returned,  shall,  before  their  sitting,  take  the  Oaths 
mentioned  in  the  said  Act,  entituled,  an  Act  for  the  further  Security  of 
His  Maf'f  Person  and  Government  and  the  Succession  of  the  Crown  in 
the  Heirs  of  the  late  Princess  Sophia  being  Protestafits,  and  for  extinguish- 
ing the  hopes  of  the  pretended  pritice  of  Wales  and  His  opeti  and  secret 
Abettors ;  as  also  make  and  subscribe  the  aforementioned  declaration, 
or  being  of  the  people  called  Quakers,  shall  take  the  Affirmation,  and 
make  and  subscribe  the  declaration  appointed  to  be  taken  and  made 
instead  of  the  Oaths  of  Allegiance,  Supremacy  and  Abjuration,  by  an  Act 
passed  within  Our  said  Province  of  Nova  Csesarea  or  New  Jersey,  in  the 
first  Year  of  our  Reign,  entituled,  an  Act  prescribing  the  Forms  of  Decla- 
ration of  Fidelity,  the  Effect  of  the  Abjuration,  Oath  and  Affirmation,  in- 
stead of  the  Forfns  heretofore  required  in  such  Cases;  and  for  repealing 
the  former  Acts  in  the  like  Cases  made  &*  provided;  which  Oaths,  Affir- 
mation &  Declaration  You  shall  commissionate  fit  Persons  under  Our 
Seal  of  Nova  C^sarea  or  New  Jersey  to  tender  and  administer  unto 
them ;  and  until  the  same  shall  be  so  taken,  made  &  subscrib'd,  no  per- 
son shall  be  capable  of  sitting  though  elected.  And  We  do  hereby  declare 
that  the  persons  so  elected  and  qualifyed  shall  be  call'd  and  deemed  the 
General  Assembly  of  that  Our  Province. 

9.  And  you  the  said  Francis  Bernard,  with  the  Consent  of  Our  said 
Council,  [and]  Assembly  or  the  Major  Part  of  them  respectively,  shall 
have  full  Power  and  Authority  to  make,  constitute  and  ordain  Laws, 
Statutes  and  Ordinances  for  the  publick  Peace,  Welfare  &  good  Govern- 
ment of  Our  said  Province  and  of  the  People  and  Inhabitants  thereof,  and 
such  others  as  shall  resort  thereto,  and  for  the  Benefit  of  Us,  Our  Heirs 
and  Successors  ;  which  said  Laws,  Statutes  and  Ordinances  are  not  to  be 
repugnant,  but  as  near  as  may  be  agreable  unto  the  Laws  and  Statutes  of 


COMMISSION   TO  BERNARD.  229 

this  Our  Kingdom  of  Great  Britain ;  provided  that  all  such  Laws,  Statutes 
and  Ordinances,  of  what  Nature  or  duration  soever,  be,  within  three  Months 
or  sooner  after  the  making  thereof,  transmitted  unto  Us  under  Our  Seal 
of  Nova  Caesarea  or  New  Jersey,  for  Our  Approbation  or  disallowance  of 
the  same,  as  also  Duplicates  thereof  by  the  next  Conveyance. 

10.  And  in  case  any  or  all  of  the  said  Laws,  Statutes  and  Ordinances 
(being  not  before  confirm'd  by  Us)  shall  at  any  time  be  disallow'd  and 
not  approved,  and  so  signified  by  Us,  Our  Heirs  or  Successors  under  Our 
or  their  Sign  Manual  and  Signet,  or  by  Order  of  Our  or  their  Privy  Coun- 
cil unto  you  the  said  Francis  Bernard  or  to  the  Commander  in  Chief  of 
Our  said  Province  for  the  time  being,  then  such  and  so  many  of  the  said 
Laws,  Statutes  and  Ordinances  as  shall  be  so  disallowed  and  not  approved, 
shall  from  henceforth  cease,  determine  and  become  utterly  void  and  of 
none  Effect,  any  thing  to  the  contrary  thereof  notwithstanding. 

11.  And  to  the  end  that  nothing  maybe  passed  or  done  by  Our  said 

Council  or  Assembly,  to  the  Prejudice  of  us.  Our  Heirs  and  Successors, 

We  IVill  &'  Ordain,  that  you  the  said  Francis  Bernard  shall  have  and 

enjoy  a  Negative  Voice  in  the  making  and  passing  of  all  Laws,  Statutes 

and  Ordinances,  as  aforesaid. 

12.  And  you  shall  and  may  likewise  from  time  to  time,  as  you  shall 
judge  it  necessary,  adjourn,  prorogue  and  dissolve  all  General  Assemblies, 
as  aforesaid. 

13.  And  Our  further  Will  ^^  Pleasure  is,  that  you  shall  and  may  use 
and  Keep  the  Publick  Seal  of  Our  Province  of  Nova  Caesarea  or  New 
Jersey,  for  sealing  all  things  whatsoever  that  pass  the  Great  Seal  of  Our 
said  Province  under  your  Government. 

14.  And  We  do  further  give  &  grant  unto  you  the  said  Francis  Ber- 
nard full  Power  and  Authority  from  time  to  time  and  at  any  time  here- 
after, by  Yourself  or  by  any  other  to  be  authorized  by  you  in  that  behalf, 
to  administer  and  give  the  abovementioned  Oaths  and  Affirmations  to 
all  and  every  such  Person  and  Persons  as  you  shall  think  fit,  who  shall 
at  any  time  or  times  pass  into  Our  said  Province  or  shall  be  resident  or 
abiding  there. 

15.  And  We  do  further  by  these  Presents  give  and  grant  unto  you 
the  said  Francis  Bernard  full  Power  and  Authority  with  the  Advice  and 
Consent  of  Our  said  Council,  to  erect,  constitute  and  appoint  such  &  so 
many  Courts  of  Judicature  and  publick  justice  within  Our  said  Province 
under  your  Government,  as  you  and  they  shall  think  fit  and  necessary 
for  the  hearing  and  determining  all  causes,  as  well  Criminal  as  Civil, 
according  to  Law  and  Equity,  and  for  awarding  of  Execution  thereupon, 


230  APPENDIX  A. 

with  all  reasonable  and  necessary  Powers,  Authorities,  Fees  and  Privi- 
leges belonging  thereto ;  as  also  to  appoint  and  commissionate  fit  Per- 
sons in  the  several  parts  of  your  Government  to  administer  the  Oaths 
mentioned  in  the  aforesaid  Act,  Entituled,  an  Acf /or  the  further  Secu- 
rity of  Our  Person  and  Government  and  the  Succession  of  the  Crown  in 
the  Heirs  of  the  late  Princess  Sophia  bei?ig  Protestants^  and  for  extin- 
guishing the  hopes  of  the  pretended  Prince  of  Wales  and  his  open  and 
secret  Abettors ;  as  also  to  tender  and  administer  the  aforesaid  Declara- 
tions and  Affirmations  unto  such  Persons  belonging  to  the  said  Courts  as 
shall  be  obliged  to  take  the  same. 

1 6.  And  We  do  hereby  authorize  and  impower  You  to  constitute  and 
appoint  Judges  (and  in  Cases  requisite  Commissioners  of  Oyer  and  Ter- 
miner), Justices  of  the  Peace,  and  other  necessary  Officers  and  Minis- 
ters in  Our  said  Province  for  the  better  Administration  of  Justice  and 
putting  the  Laws  in  Execution,  and  to  administer  or  cause  to  be  admin- 
istered unto  them  such  Oath  or  Oaths  as  are  usually  given  for  the  due 
Execution  and  Performance  of  Offices  and  Places,  and  for  the  clearing 
of  Truth  in  Judicial  Causes. 

17.  And  We  do  hereby  give  and  grant  unto  you  full  Power  and 
Authority  where  you  shall  see  Cause,  or  shall  judge  any  offender  or 
offenders  in  criminal  Matters,  or  for  any  Fines  or  Forfeitures  due  unto 
Us,  fit  Objects  of  Our  Mercy,  to  pardon  all  such  Offenders,  and  to  re- 
mit all  such  Offences,  Fines  and  Forfeitures,  Treason  and  Willful  Mur- 
der only  excepted,  in  which  Cases  you  shall  likewise  have  Power  upon 
extraordinary  Occasions  to  grant  Reprieves  to  the  Offenders,  untill  and 
to  the  Intent  Our  Royal  Pleasure  may  be  Known  therein. 

18.  And  We  do  by  these  Presents  authorize  and  impower  you  to  col- 
late any  Person  or  Persons  to  any  Churches,  Chapels  or  other  Ecclesi- 
astical Benefices  within  Our  said  Province,  as  often  as  any  of  them  shall 
happen  to  be  void. 

19.  And  We  do  hereby  give  and  grant  unto  you  the  said  Francis  Ber- 
nard by  yourself  or  by  your  Captains  and  Commanders  by  you  to  be 
authorized,  full  Power  and  Authority  to  levy,  arm,  muster,  command, 
and  imploy  all  Persons  whatsoever  residing  within  Our  said  Province 
of  Nova  Caesarea  or  New  Jersey  under  your  Government,  and,  as  Occa- 
sion shall  serve,  to  march  from  one  place  to  another,  or  to  embark  them 
for  the  resisting  and  withstanding  of  all  Enemies,  Pirates  and  Rebels, 
both  at  Sea  and  Land,  and  to  transport  such  Forces  to  any  of  Our 
Plantations  in  America  (if  necessity  shall  require)  for  the  Defence  of 
the  same  against  the  invasion  or  Attempts  of  any  of  Our  Enemies,  and 


COMMISSION  TO  BERNARD.  23  I 

such  Enemies,  Pirates  and  Rebels,  if  there  shall  be  occasion,  to  persue 
and  prosecute  in  or  out  of  the  Limits  of  Our  said  Province  and  Planta- 
tions or  any  of  them ;  and,  if  it  shall  so  please  God,  them  to  vanquish, 
apprehend  and  take,  and  being  taken  either  according  to  Law  to  put  to 
Death,  or  Keep  and  preserve  alive  at  your  Discretion,  &  to  execute 
Martial  Law  in  time  of  Livasion  or  other  times  when  by  Law  it  may 
be  executed,  and  to  do  and  execute  all  and  every  other  thing  and 
things  which  to  Our  Captain  General  and  Governor  in  Chief  doth  or 
ought  of  Right  to  belong. 

20.  And  We  do  hereby  give  and  grant  unto  you  full  Power  &  Author- 
ity, by  and  with  the  Advice  and  Consent  of  Our  said  Council,  to  erect, 
raise  and  build  in  Our  said  Province  of  Nova  Csesarea  or  New  Jersey 
such  and  so  many  Forts  and  Platforms,  Castles,  Cities,  Boroughs,  Towns 
and  Fortifications,  as  You  by  the  Advice  aforesaid  shall  judge  necessary; 
and  the  same  or  any  of  them  to  fortify  and  furnish  with  Ordnance,  Am- 
munition, and  all  sorts  of  Arms  fit  and  necessary  for  the  security  &  De- 
fence of  our  said  Province,  and  by  the  Advice  aforesaid  the  same  again 
or  any  of  them  to  demolish  or  dismantle  as  may  be  most  convenient. 

21.  And  for  asmuch  as  divers  Mutinies  and  Disorders  may  happen  by 
Persons  shipped  and  imploy'd  at  Sea,  during  the  time  of  War,  and  to 
the  end  that  such  as  shall  be  shipped  &  imployed  at  Sea  during  the  time 
of  War,  may  be  better  govrn'd  and  order'd  ;  We  do  hereby  give  and 
grant  unto  You  the  said  Francis  Bernard  full  Power  and  Authority  to 
constitute  and  appoint  Captains,  Lieutenants,  Masters  of  Ships  and 
other  Commanders  and  ofificers,  and  to  grant  unto  such  Captains,  Lieu- 
tenants, Masters  of  Ships  and  other  Commanders  and  officers,  Commis- 
sions to  execute  the  Law  Martial,  during  the  time  of  War,  according  to 
the  Directions  of  an  Act  passed  in  the  22''  year  of  Our  Reign,  entided, 
an  Act  for  amending,  explaining  and  reducing  into  one  Act  of  Parlia- 
ment the  Laws  relating  to  the  Government  of  his  Majestys'  Ships,  Ves- 
sels and  Forces  by  Sea ;  and  to  use  such  proceedings.  Authorities, 
Punishments,  Corrections  and  Executions  upon  any  offenders,  who  shall 
be  Mutinous,  Seditious,  Disorderly  or  any  way  unruly,  either  at  Sea  or 
during  the  time  of  their  Abode  or  Residence  in  any  of  the  Ports,  Har- 
bours, or  Bays  of  Our  said  Province,  as  the  Cause  shall  be  found  to  re- 
quire, according  to  Martial  Law  and  the  said  Directions,  during  the 
time  of  War,  as  aforesaid,  Provided  that  nothing  here  in  contain'd  shall 
be  construed  to  the  enabling  you,  or  any  by  your  Authority,  to  hold  plea 
or  have  any  Jurisdiction  of  any  offence,  Cause,  Matter  or  Thing  com- 
mitted or  done  upon  the  high  Sea,  or  within  any  of  the  Havens,  Rivers 


232  APPENDIX  A. 

or  Creeks  of  Our  said  Province  under  your  Government,  by  any  Cap- 
tain, Commander[,]  Lieutenant,  Master,  officer,  Seaman,  Soldier  or 
other  Person  whatsoever,  who  shall  be  in  actual  Service  and  pay,  in 
or  on  Board  any  of  Our  Ships  of  War  or  other  Vessels  acting  by  imme- 
diate Commission  or  Warrant  from  our  Commissioners  for  executing 
the  office  of  Our  High  Admiral,  or  from  Our  High  Admiral  of  Great 
Britain  for  the  time  being  under  the  Seal  of  Our  admiralty;  but 
that  such  Captain,  Commander,  Lieutenant,  Master,  officer.  Seaman, 
Soldier,  or  other  Person  so  offending,  shall  be  left  to  be  proceeded 
against  and  tryed  as  their  offences  shall  require ;  either  by  Commission 
under  Our  Great  Seal  of  Great  Britain,  as  the  Statute  of  the  28*  of 
Henry  the  eight  directs ;  or  by  Commission  from  Our  said  Commission- 
ers for  executing  the  office  of  Our  High  Admiral ;  or  from  Our  High 
Admiral  of  Great  Britian  for  the  time  being,  according  to  the  afore- 
mention'd  Act  for  amending,  explaining  and  reducing  into  one  Act  of 
parliament  the  Laws  relating  to  the  Government  of  His  Majestys* 
Ships,  Vessels  and  Forces  by  Sea,  and  not  otherwise. 

22.  Provided  nevertheless  that  all  Disorders  and  Misdeameanors  com- 
mitted on  Shore  by  any  Captain,  Commander,  Lieutenant,  Master,  officer. 
Seaman,  Soldier  or  other  Person  whatsoever,  belonging  to  any  of  Our 
Ships  of  War  or  other  Vessels  acting  by  immediate  Commission  or  War- 
rant from  Our  said  Commissioners  for  executing  the  office  of  Our  High 
Admiral,  or  from  Our  High  Admiral  of  Great  Britain  for  the  time  being 
under  the  Seal  of  Our  Admiralty  may  be  tryed  and  punished  according 
to  the  Law  of  the  place  where  any  such  Disorders,  offences  and  Misde- 
meanours shall  be  committed  on  Shore,  notwithstanding  such  offender 
be  in  Our  actual  Service  and  born  in  Our  Pay  on  Board  any  such  Our 
Ships  of  War  or  other  Vessels  acting  by  immediate  Commission  or  War- 
rant from  Our  said  Commissioners  for  executing  the  office  of  Our  High 
Admiral  or  from  Our  High  Admiral  of  Great  Britain  for  the  time  being 
as  aforesaid,  so  as  he  shall  not  receive  any  protection  for  the  avoiding 
Justice  for  such  offences  committed  on  Shore,  from  any  pretence  of  his 
being  imployed  in  Our  Service  at  Sea. 

23.  Our  further  Will  &  Pleasure  is,  that  all  publick  Money  raised  or 
which  shall  be  raised  by  any  Act  hereafter  to  be  made  within  Our  said 
Province,  be  issued  out  by  Warrant  from  You,  by  and  with  the  advice 
&  Consent  of  Our  Council,  and  disposed  of  by  you  for  the  Support  of 
the  Government,  and  not  otherwise. 

24.  And  We  do  hereby  give  you  the  said  Francis  Bernard  full  Power 
and  Authority  to  order  and  appoint  Fairs,  Marts  and  Markets,  as  also 


COMMISSION  TO  BERNARD.  233 

such  and  so  many  Ports,  Harbours,  Bays,  Havens  and  other  Places  for 
the  Convenience  and  Security  of  Shipping  and  for  the  better  Loading 
and  unloading  of  Goods  and  Merchandize,  as  by  you,  with  the  Advice 
and  Consent  of  Our  said  Council,  shall  be  thought  fit  and  necessary. 

25.  And  We  do  hereby  require  and  command  all  Officers  &  Ministers 
Civil  and  Military,  and  all  other  Inhabitants  of  Our  said  province  to 
be  obedient,  aiding  and  assisting  unto  you  the  said  Francis  Bernard  in 
the  execution  of  this  Our  Commission,  and  of  the  Powers  and  Authorities 
herein  contain'd ;  And  in  Case  of  your  Death  or  Absence  out  of  Our  said 
Province,  to  be  Obedient,  aiding  and  assisting  unto  such  Person  as  shall 
be  appointed  by  Us  to  be  Our  Lieutenant  Governor  or  Commander  in 
Chief  of  our  said  province,  to  whom  We  do  therefore  by  these  presents 
give  and  grant  all  and  singular  the  powers  and  Authorities  herein  granted 
to  be  by  him  executed  &  enjoyed  during  Our  pleasure,  or  until  your  ar- 
rival within  Our  said  province. 

26.  And  if  upon  your  Death  or  Absence  out  of  Our  said  province  there 
be  no  person  upon  the  place  commissionated  or  appointed  by  us  to  be 
Our  Lieutenant  Governor  or  Commander  in  Chief  of  Our  said  province, 
Our  Will  &  Pleasure  is,  that  the  eldest  Councillor  whose  name  is  first 
placed  in  Our  said  Instructions  to  you,  and  who  shall  be  at  the  time  of 
your  Death  or  Absence  residing  within  Our  said  province  of  New  Jersey, 
shall  take  upon  him  the  Administration  of  the  Government,  &  execute 
Our  said  Commission  and  Instructions  and  the  several  Powers  and  Author- 
ities therein  contain'd,  in  the  same  Manner  and  to  all  Intents  and  pur- 
poses as  other  Our  Governor  or  Commander  in  Chief  of  Our  said  province 
shou'd  or  ought  to  do,  in  Case  of  your  Absence  untill  you  return,  or  in 
all  Cases  untill  Our  further  Pleasure  be  Known  therein. 

27.  And  We  do  hereby  declare,  ordain  and  appoint,  that  you  the  said 
Francis  Bernard  shall  and  may  hold,  execute  and  enjoy  the  office  &  Place 
of  Our  Captain  General  and  Governor  in  Chief  in  and  over  Our  province 
of  Nova  Caesarea  or  New  Jersey,  together  with  all  and  Singular  the  Pow- 
ers and  Authorities  hereby  granted  unto  you  for  and  during  Our  Will  and 
Pleasure.     In  Witness  whereof  We  have  caused  these  our  Letters  to  be 

made   Patents.     Witness   Ourself  at  Westminster   the   dav   of 

1758  in  the  thirty  first  year  of  Our  Reign.     And  for  so  doing 


this  shall  be  your  Warrant.     Given  at  our  Court  at  S'  James's  the  

day  of 1758  in  the  thirty  first  year  of  Our  Reign.^ 

1  This  draft  of  a  commission  was  approved  by  an  order  of  council  dated  Janu- 
ary 27,  175S.  See  Analytical  Index  to  the  Colonial  Documents  of  New  Jersey  (New 
Jersey  Historical  Society,  Collections,  V.),  344. 


234  APPENDIX  A. 

5.     INSTRUCTIONS   TO  FRANCIS   BERNARD  AS    GOVERNOR 
OF   NEW  JERSEY,  1758.     [Draft.] 

[From  the  Public  Record  Office,  Board  of  Trade,  New  Jersey  papers,  vol.  xvi. 
p.  64  ;  printed  in  New  Jersey  Documents,  ix.  40.] 

Instructions  to  Our  Trusty  and  Well  beloved  Francis  Ber- 
nard ESQ"^  Our  Captain  General  and  Governor  in  Chief  in 
and   over  Our  province  of  Nova  Caesarea   or  New  Jersey  in 

America.     Given  at  Our  Court  at  S!  James's  the  day 

of 1758  in  the  thirty  first  day  of  Our  Reign. 

i'.'  With  these  Our  Instructions  your  [you]  will  receive  Our  Com- 
mission under  Our  Great  Seal  of  Great-Britain,  constituting  You  Our 
Capt"  General  and  Governor  in  Chief  in  and  over  Our  province  of  New 
Jersey,  You  are  therefore  with  all  convenient  Speed  to  repair  to  Our 
said  Province,  and  being  there  arrived,  You  are  to  take  upon  you  the 
Execution  of  the  Peace  [Place]  and  Trust  We  have  reposed  in  You,  and 
forthwith  to  call  together  the  Members  of  our  Council  in  and  for  that 
province,  viz'  Jn°  Reading,  Robert  Hunter  Morris,  Edward  Antill, 
James  Hude,  Andrew  Johnston,  Peter  Kimbold,  Thomas  Leonard, 
Rich*?  Salter,  David  Ogden,  Lewis  Ashfield,  Samuel  "\^'oodruffe  and 
W?  Alexander  Esq? 

2'?  Afid  you  are  with  all  due  Solemnity  to  cause  Our  said  Commission 
to  be  read  and  published  at  the  said  Meeting  of  our  Council,  which  be- 
ing done,  You  shall  then  take  and  also  administer  to  each  of  the  Mem- 
bers of  Our  said  Council  the  Oaths  mention'd  in  an  Act  pass'd  in  the 
first  Year  of  His  late  Majesty  Our  Royal  Father's  Reign,  endtuled,  a7i 
Act  for  the  further  Security  of  His  Majesty's  Person  and  Governme?it 
and  the  Succession  of  the  Crown  in  the  Heirs  of  the  late  princess  Sophia 
being  Protestatits,  and  for  extinguish  i?ig  the  hopes  of  the  pretended  prince 
of  Wales  and  His  open  and  secret  Abettors  :  as  also  make  and  subscribe 
and  cause  the  Members  of  Our  said  Council  to  make  and  subscribe  the 
Declaration  mentioned  in  an  Act  of  Parliament  made  in  the  25"'  Year 
of  the  Reign  of  King  Charles  the  second,  entituled,  an  Act  for  preventifig 
Hangers  which  may  happen  by  Popish  Recusants  ;  And  you,  and  every 
of  them,  are  likewise  to  take  an  Oath  for  the  due  Execution  of  your  and 
their  places  and  Trusts  with  Regard  to  your  and  their  equal  and  impar- 
tial Administration  ;  of  Justice  ;  and  you  are  also  to  take  the  Oath  re- 
quired by  an  Act  pass'd  in  the  7  &  8  years  of  the  Reign  of  King  William 


INSTRUCTIONS   TO  BERNARD.  235 

the  2>^  to  be  taken  by  Governors  of  Plantations  to  do  their  utmost  that 
the  Acts  of  Parliament  relating  to  the  plantations  be  observed. 

3.  You  shall  administer  or  cause  to  be  administered  the  Oaths  men- 
tioned in  the  aforesaid  Act,  entituled,  an  Act  for  the  further  Security  of 
His  Majesty's  Person  and  Governfnent,  and  the  Succession  of  the  Crown 
in  the  Heirs  of  the  late  Friticess  Sophia  being  Protestants,  and  for  extin- 
guishing the  Hopes  of  the  pretended  Prince  of  Wales,  and  his  open  and 
secret  Abettors  ;  to  the  Members  and  officers  of  the  Council  and  Assem- 
bly, and  to  all  Judges,  Justices,  and  all  other  Persons,  that  hold  any 
Office  or  Place  of  Trust  or  Profit  in  the  said  Province,  whether  by  virtue 
of  any  patent  under  Our  Great  Seal  of  this  Kingdom,  or  the  Publick 
Seal  of  New  Jersey,  or  otherwise ;  And  you  shall  also  cause  them  to 
make  and  subscribe  the  aforesaid  Declaration  ;  without  the  doing  of  all 
which  you  are  not  to  admit  any  person  whatsoever  to  any  publick  Office, 
nor  suffer  those  who  have  been  admitted  formerly,  to  continue  therein. 

4.  You  are  forthwith  to  communicate  to  Our  said  Council  such  and  so 
many  of  these  Our  Instructions  wherein  their  Advice  and  Consent  are 
required,  as  likewise  all  such  others  from  time  to  time  as  you  shall  find 
convenient  for  Our  Service  to  be  imparted  to  them. 

5.  You  are  to  permit  the  Members  of  Our  said  Counb[c]il  to  have 
and  enjoy  Freedom  of  Debate  and  Vote  in  all  Affairs  of  publick  Concern, 
that  may  be  debated  in  Council. 

6.  And  although  by  Our  Commission  aforesaid  We  have  thought  fit 
to  Direct,  that  any  three  of  Our  Councillors  make  a  Quorum,  it  is  never- 
theless Our  Will  and  Pleasure,  that  you  do  not  act  with  a  Quorum  of 
less  than  five  Members,  unless  upon  extraordinary  Emergencies,  when 
a  greater  Number  cannot  be  conveniently  had. 

7.  And  that  we  may  be  always  informed  of  the  Names  and  Characters 
of  Persons  fit  to  supply  the  Vacancies  that  shall  happen  in  Our  said 
Council,  you  are  from  time  to  time,  when  any  Vacancies  shall  happen 
in  Our  said  Council,  forthwith  to  transmit  unto  Our  Commissioners  for 
Trade  and  Plantations,  in  order  to  be  laid  before  Us,  the  Names  of  three 
persons.  Inhabitants  of  the  Eastern  Division,  and  the  Names  of  three 
other  Persons  Inhabitants  of  the  Western  Division,  of  Our  said  Province, 
whom  you  shall  esteem  the  best  qualifyed  for  that  Trust. 

8.  And  whereas  by  Our  Commission  You  are  impower'd,  in  Case  of 
the  Death  or  Absence  of  any  of  Our  Council  of  the  said  Province,  to 
fill  up  the  Vacancies  in  Our  said  Council  'to  the  number  of  seven,  and 
no  more  ;  you  are  from  time  to  time  to  send  to  Our  Commissioners  for 
Trade  and  Plantations,  in  order  to  be  laid  before  Us,  the  Name  or  Names 


236  APPENDIX  A. 

and  Qualities  of  any  Member  or  Members  by  you  put  into  Our  said 
Council  by  the  first  conveniency  after  your  so  doing. 

9.  And  in  the  Choice  and  nomination  of  the  Members  of  Our  said 
Council,  as  also  of  the  Chief  Officers,  Judges,  Assistant  Justices  and 
Sheriffs  ;  You  are  always  to  take  Care,  that  they  be  men  of  good  Life, 
well  affected  to  Our  Government,  of  good  Estates,  and  of  AbiUties  suit- 
able to  their  Employments. 

ID.  You  are  neither  to  augment  nor  diminish  the  Number  of  Our  said 
Council,  as  it  is  already  establish'd,  nor  to  suspend  any  of  the  Mem- 
bers thereof  without  good  and  sufficient  Cause,  nor  without  the  Con- 
sent of  the  Majority  of  the  said  Council  signified  in  Council,  after  due 
Examination  of  the  Charge  against  such  Councillor  and  his  answer  there- 
unto. And  in  Case  of  Suspension  of  any  of  them,  You  are  to  cause  your 
Reasons,  for  so  doing,  together  with  the  Charges  and  proofs  against  the 
said  Persons,  and  their  Answers  thereunto,  to  be  duly  entred  upon  the 
Council  Books ;  and  forthwith  to  transmit  Copies  thereof,  to  Our  Com- 
missioners for  Trade  and  Plantations,  in  Order  to  be  laid  before  us. 
Nevertheless  if  it  should  happen,  that  you  should  have  Reasons  for  sus- 
pending any  Councillor  not  fit  to  be  communicated  to  the  Council,  you 
may  in  that  Case  suspend  such  Person  without  their  consent ;  but  you 
are  thereupon  immediately  to  send  to  Our  Commissioners  for  Trade  and 
Plantations,  in  Order  to  be  laid  before  Us,  an  Account  of  your  proceed- 
ings therein,  with  your  Reasons  at  large  for  such  Suspension,  as  also  for 
not  communicating  the  same  to  the  Council,  and  Duplicates  thereof  by 
the  next  Opportunity. 

II.  And  whereas  We  are  sensible,  that  effectual  Care  ought  to  be 
taken  to  oblige  the  Members  of  Our  Council  to  a  due  Attendance 
therein,  in  Order  to  prevent  the  many  inconveniences  that  may  happen 
for  want  of  a  Quorum  of  the  Council  to  transact  Business,  as  Occasion 
may  require  ;  It  is  Our  Will  6^  Pleasure,  that,  if  any  of  the  Members 
of  Our  said  Council  residing  in  tlie  said  Province  shall  hereafter  absent 
themselves,  from  Our  Said  Province,  and  continue  absent  above  the 
Space  of  twelve  months  together,  without  leave  from  you  or  from  Our 
Governor  or  Commander  in  Chief  of  the  said  Province  for  the  time  be- 
ing, first  obtain'd  under  your  or  his  Hand  and  Seal,  or  shall  remain  ab- 
sent for  the  Space  of  two  Years  successively,  without  Our  Leave  given 
them  under  Our  Royal  Sign  Manual,  their  place  or  places  in  Our  said 
Council  shall  immediately  thereupon  become  void ;  and  that  if  any  of 
the  Members  of  Our  said  Council  residing  in  our  said  Province  shall 
hereafter  willfully  absent  themselves  from  the  Council  Board  when  duly 


INSTRUCTIOi\S   TO  BERNARD.  237 

summon'd  without  a  just  and  lawful!  Cause,  and  shall  persist  therein  after 
Admonition,  you  suspend  the  said  Councillors,  so  absenting  themselves, 
till  Our  further  pleasure  be  known,  giving  timely  notice  thereof  to  Our 
Commissioners  for  Trade  and  plantations,  in  Order  to  be  laid  before 
Us ;  And  We  do  hereby  Will  and  require  you,  that  this  Our  pleasure  be 
signified  to  the  several  Members  of  Our  Council  aforesaid,  and  that  it 
be  enter'd  in  the  Council  Books  of  Our  said  Province  as  a  standing 
Rule. 

12.  And  Our  Will  and  Pleasure  is,  that  with  all  convenient  Speed 
you  call  together  one  general  Assembly  for  the  enacting  of  Laws  for  the 
joint  and  mutual  Good  of  the  whole  province ;  that  the  first  meeting 
of  the  said  general  Assembly  be  at  Perth  Amboy  in  East  New  Jersey,  in 
case  the  last  was  at  Burlington ;  And  that  all  future  General  Assemblies 
do  meet  and  sit  at  one  or  the  other  of  these  Places  alternately,  or  other- 
wise as  You,  with  the  Advice  of  Our  foresaid  Council,  shall  think  fit  in 
Case  of  extraordinary  Necessity  to  appoint  them. 

13.  Our  Will  &  Pleasure  is,  and  you  are  accordingly  to  make  the 
same  Known  in  the  most  publick  Manner,  that  the  Method  of  choosing 
Representatives  for  the  future  shall  be,  as  follows  ;  Viz'  two  by  the  In- 
habitants—  Householders  of  the  City  or  Town  of  Perth  Amboy  in  East 
New  Jersey,  and  two  by  the  Freeholders  of  each  of  the  Five  Counties  in 
the  said  Division  of  East  New  Jersey ;  Two  by  the  Inhabitants  House- 
holders of  the  city  or  Town  of  Burlington  in  West  New  Jersey,  and  two 
by  the  Freeholders  of  each  of  the  five  Counties  in  the  said  Division  of 
West  New  Jersey ;  which  Persons,  so  to  be  chosen,  make  up  together 
the  Number  of  twenty  four  Representatives.  And  it  is  Our  further  Will 
d^  Pleasure,  that  no  Person  shall  be  capable  of  being  elected  a  Repre- 
sentative by  the  Freeholders  of  either  Division,  as  aforesaid,  or  afterwards 
of  sitting  in  general  Assembly,  who  shall  not  have  one  thousand  Acres  of 
Land  an  Estate  of  Freehold  in  his  own  Right  within  the  Division  for  which 
he  sliall  be  chosen,  or  have  a  personal  Estate  in  Money,  Goods  or  Chat- 
tels to  value  of  five  hundred  pounds  sterling  and  all  Inhabitants  of  Our 
said  Province  being  so  qualifyed,  as  aforesaid,  are  hereby  declared  capable 
of  being  elected  accordingly. 

14.  You  are  to  choose  in  the  passing  of  Laws,  that  the  Stile  of  enacting 
the  same  be  by  the  Governor,  Council  and  Assembly  and  no  other ;  You 
are  also,  as  much  as  possible,  to  observe  in  the  passing  of  all  Laws,  that 
whatever  may  be  requisite  upon  each  different  matter  be  accordingly 
provided  for  by  a  different  Law,  without  Intermixing  in  one  and  the 
same  Act  such  things  as  have  no  proper  relation  to  each  other,  and  you 


238  APPENDIX  A. 

are  more  especially  to  take  care,  that  no  Clause  or  Clauses  be  inserted  in 
or  annexed  to  any  Act,  which  shall  be  foreign  to  what  the  Title  of  such 
respective  Act  imports ;  and  that  no  perpetual  Clause  be  made  part  of 
any  temporary  Law  ;  and  that  no  Act  whatsoever  be  suspended,  altered, 
continued  revived  or  repeated  [repealed]  by  general  Words,  but  that  the 
Tide  and  Date  of  such  Act  so  suspended,  alter'd,  continued,  revived  or 
repealed  be  particularly  mentioned  and  expressed  in  the  enacting  part. 

15.  ^/^^/ whereas  several  Laws  have  formerly  been  enacted  in  several 
of  Our  Plantations  in  America,  for  so  short  a  time,  that  the  Assent  or  re- 
fusal of  Our  Royal  predecessors  cou'd  not  be  had  thereupon  before  the 
time,  for  which  such  Laws  were  enacted,  did  expire  ;  You  shall  not  for 
the  future  give  Your  Assent  to  any  Law ;  that  shall  be  enacted  for  a  less 
time  than  two  Years,  except  in  the  Cases  hereinafter  mention'd.  And 
you  shall  not  reenact  any  Law  to  which  the  Assent  of  Us  or  Our  Royal 
predecessors  has  once  been  refused,  without  express  Leave  for  that  pur- 
pose first  obtained  from  Us,  upon  a  full  Representation  by  you  to  be 
made  to  Our  Commissioners  for  Trade  and  Plantations,  in  order  to  be 
laid  before  Us,  of  the  reason  and  necessity  for  passing  such  Law,  nor 
give  your  Assent  to  any  Law  for  repealing  any  other  Act  pass'd  in  Your 
Government,  whether  the  same  is  [has]  or  has  not  received  Our  Royal 
Approbation,  unless  You  take  care  that  there  be  a  Clause  inserted  therein 
suspending  and  deferring  the  Execution  thereof  until  Our  Pleasure  be 
known  concerning  the  same. 

16.  ^«^  whereas  great  Mischiefs  do  arise  by  the  Frequent  passing  Bills 
of  an  unusual  and  extraordinary  Nature  and  Importance  in  Our  Planta- 
tions, which  Bills  remain  in  force  there  from  the  time  of  enacting  until 
Our  Pleasure  be  signified  to  the  contrary  ;  We  do  hereby  Will  and  require 
you  not  to  pass  or  give  your  Consent  hereafter  to  any  Bill  or  Bills  in  the 
Assembly  of  Our  said  Province  of  unusual  and  extraordinary  Nature  and 
importance,  wherein  Our  Prerogative,  or  the  Property  of  Our  Subjects  may 
be  prejudiced,  or  the  Trade  or  Shiping  of  this  Kingdom  any  Ways  af- 
fected, until  you  shall  have  first  transmitted  to  Our  Commissioners  for 
Trade  and  Plantations,  in  order  to  be  laid  before  Us,  the  Draught  of 
such  a  Bill  or  Bills,  and  shall  have  receiv'd  Our  Royal  Pleasure  there- 
upon, unless  you  take  care  in  the  passing  of  any  Bill  of  such  Nature  as 
beforementioned,  that  there  be  a  Clause  inserted  therein,  suspending  and 
deferring  the  Execution  thereof  untill  Our  Pleasure  shall  be  known  con- 
cerning the  same. 

17.  You  are  also  to  take  Care,  that  no  private  Act,  whereby  the  prop- 
erty of  private  Persons  may  be  affected,  be  passed,  in  which  there  is  not 


INSTRUCTIONS  TO  BERNARD.  239 

a  saving  of  the  Right  of  Us,  Our  Heirs  and  Successors,  all  Bodies  Politick 
or  corporate,  and  of  all  other  Persons,  except  such  as  are  mentioned  in 
the  said  Act  and  those  claiming  by,  from  and  under  them ;  And  fur- 
ther you  shall  take  Care,  that  no  such  private  Act  be  passed  without 
a  Clause  suspending  the  Execution  thereof,  until  the  same  shall  have  Our 
Royal  Approbation.  It  is  likewise  Our  Will  and  Pleasure,  that  you  do 
not  give  your  Assent  to  any  private  Act,  until  Proof  be  made  before  you 
in  Council  (and  entred  in  the  Council  Books,)  that  publick  notification 
was  made  of  the  Parties  Intention  to  apply  for  such  Act  in  the  several 
Parish  Churches,  where  the  premises  in  Question  lye,  for  three  Sundays 
at  least  successively,  before  any  such  Act  shall  be  brought  into  the  Assem- 
bly ;  and  that  a  Certificate  under  your  hand  be  transmitted  with  and  an- 
nexed to  every  such  private  Act,  signifying  that  the  same  has  passed 
through  all  the  forms  above  mention'd. 

18.  You  are  to  take  Care,  that  in  all  Acts  or  Orders  to  be  passed  within 
that  Our  said  Province,  in  any  Case  for  levying  Money  or  imposing  Fines 
and  Penalties,  express  mention  be  made,  that  the  same  is  granted  or  re- 
served to  Us,  Our  Heirs  or  Successors  for  the  Publick  Uses  of  that  Our 
Province  and  the  support  of  the  Government  thereof,  as  by  the  said  Act 
or  Order  shall  be  directed,  and  you  are  particularly  not  to  pass  any  Law 
or  do  any  Act  by  Grant,  Settlement  or  otherwise,  whereby  Our  Revenue 
may  be  Lessened  or  impaired  without  Our  especial  leave  or  Command 
therein. 

19.  You  are  not  to  suffer  any  publick  Money  whatsoever  to  be  issued 
or  disposed  of,  otherwise  than  by  Warrant  under  your  hand,  by  and  with 
the  Advice  and  Consent  of  Our  said  Council,  but  the  Assembly  may  be 
nevertheless  permitted  from  time  to  time  to  view  and  examine  the  Ac- 
counts of  Money  or  Value  of  Money  disposed  of  by  Virtue  of  Laws  made 
by  them,  which  you  are  to  signify  unto  them,  as  there  shall  be  occasion. 

20.  You  are  not  to  permit  any  Clause  whatsoever  to  be  inserted  in 
any  Law  for  the  Levying  Money  or  the  Value  of  Money,  whereby  the 
same  shall  not  be  made  lyable  to  be  accounted  for  unto  Us,  and  to  Our 
Commissioners  of  Our  Treasury  or  Our  High  Treasurer  for  the  time  be- 
ing, and  audited  by  Our  Auditor  General  of  Our  Plantations  or  his 
Deputy  for  the  time  being.  And  we  do  particularly  require  and  enjoyn 
you,  under  the  pain  of  Our  highest  Displeasure,  to  take  Care,  that  fair 
Books  of  Accounts  of  all  Receipts  &  payments  of  all  publick  Money  be 
duly  kept,  and  the  Truth  thereof  attested  upon  Oath  And  that  all  such 
Accounts  be  audited  and  attested  by  the  Auditor  General  of  Our  Planta- 
tions or  his  Deputy,  who  is  to  transmit  Copies  thereof  to  Our  Commis' 


240  APPENDIX  A. 

sioners  of  Our  Treasury  or  to  Our  High  Treasurer  for  the  time  beings 
and  that  you  do  every  half  Year  or  oftener  send  another  Copy  thereof 
attested  by  yourself  to  Our  Commissioners  for  Trade  and  Plantations, 
and  DuiDUcates  thereof  by  the  next  Conveyance  ;  In  which  Books  shall 
be  specified  every  particular  Sum  raised,  and  disposed  of,  together  with 
the  names  of  the  Persons  to  whom  any  Payment  shall  be  made,  to  the 
end  We  may  be  satisiied  of  the  Right  and  due  application  of  the  Revenue 
of  Our  said  province  with  the  probability  of  the  increase  or  Diminution 
of  it  under  every  head  or  Article  thereof. 

21^'  //  is  Our  express  Will  and  Pleasure,  that  no  Law  for  raising  any 
imposition  on  Wines  or  other  strong  Liquors  be  made  to  continue  for 
less  than  one  whole  Year,  and  that  all  other  Laws  made  for  the  supply 
and  Support  of  the  Government  shall  be  indefinite  and  without  Limita- 
tion, except  the  same  be  for  a  temporary  Service,  and  which  shall  expire 
and  have  their  full  effect  within  the  time  therein  prefixt. 

2  2.    Whereas  Acts  have  been  passed  in  some  of  Our  Plantations  in 
America  for  striking  Bills  of  Credit  and  issuing  out  the 

This  Article      game  in  lieu  of  Money,  and  for  declaring  the  said  Bills  to 
was  struck  out     ^^  j^^^j  Tenders  in  payment  of  all  private  Contracts, 

J  \  ^  r^^  ^      Debts,  Dues  and  Demands  whatsoever,  in  Order  to  dis- 
of   the    Conn-  ' 

cil,  &  in  lieu  charge  their  pubhck  Debts  and  for  other  purposes ;  from 
thereof  was  whence  several  Inconveniences  have  arisen;  It  is  there- 
in sert'd  the  fQj-e  Q^^f.  ^7//  ^ji^  Pleasure,  that  you  do  not  give  your 
19'h  Article  of  ^^^^^^^  ^q  or  pass  any  Act  in  the  Province  of  New  Jersey 
tions  given"to  ""^^er  your  Government,  whereby  Bills  of  Credit  may  be 
Jonathan  Bel-  Struck  or  issued  in  Heu  of  Money,  unless  upon  sudden 
cher  Esq--  the  and  extraordinary  Emergencies  of  Government,  in  Case 
late  Gov  Qf  ^y^j.  Qj.  Invasion,  and  upon  no  other  occasion  what- 
.  ^^^  ox^tx  ^^^^^  ^^^  provided  that  in  every  such  Act  so  to  be  passed 
dated  1='  of  by  you,  due  care  be  taken  to  ascertain  the  real  Value  of 
April  1758  such  Bills  of  Credit,  and  that  an  ample  and  sufficient  fund 
Eund'ei  be  provided,  for  calling  in,  sinking  and  discharging  the 

1  The  article  substituted  was  the  same  as  the  19th  article  in  the  instructions  to 
Governor  Lewis  Morris  in  173S,  which  was  as  follows  :  "  Whereas  Acts  have  been 
pass'd  in  some  of  Our  Plantations  in  America  for  striking  Bills  of  Credit  and  issu- 
ing out  the  same  in  lieu  of  Money  in  Order  to  discharge  their  publick  Debts  and 
for  other  purposes,  from  whence  sev!  Inconveniencies  have  arisen  It  is  therefore 
Our  Will  and  Pleasure  that  you  do  not  give  your  Assent  to,  or  pass  any  Act  in  Our 
said  Province  of  New  Jersey  under  your  Government  whereby  Bills  of  Credit  may 
be  struck  or  issued  in  lieu  of  Money  without  a  Clause  be  inserted  in  such  Act  de- 
claring that  the  same  shall  not  take  Effect,  until  the  said  Act  shall  have  been  ap- 


INSTRUCTIONS   TO  BERNARD.  24 1 

said  Bills  within  a  reasonable  time,  not  exceeding  five  Years ;  and  pro- 
vided also,  that  such  Bills  of  Credit  shall  not  be  declared  to  be  a  legal 
Tender  in  payment  of  any  private  Contracts,  Bargains,  Debts,  Dues  or 
Demands  whatsoever  within  Our  said  Province ;  and  it  is  Our  further 
Will  6-  Pleasure,  that  you  do  not  upon  any  pretence  whatsoever  give 
your  Assent  to  any  Act  or  Acts,  whereby  the  time  limited  or  the  Provision 
made  for  the  calling  in,  sinking  and  discharging  such  paper  Bills  of  Credit, 
as  are  already  subsisting  or  passing  in  payment  within  Our  said  Province, 
shall  be  protracted  or  postponed,  or  whereby  any  of  them  shall  be  depre- 
ciated in  Value,  or  whereby  they  shall  be  re-issued,  or  obtain  a  new  and 
further  Currency. 

23.  W/iereas  several  Inconveniences  have  arisen  to  Our  Governments 
in  the  Plantations  by  Gifts  and  Presents  made  to  Our  Governors  by  the 
general  Assemblies ;  you  are  therefore  to  propose  unto  the  Assembly  at 
their  first  meeting  after  your  Arrival,  and  to  use  your  utmost  Endeavour 
with  them,  that  an  Act  be  passed  for  raising  and  settling  a  publick  Rev- 
enue for  defraying  the  necessary  Charge  of  the  Government  of  Our  said 
Province,  and  that  therein  Provision  be  particularly  made  for  a  competent 
Salary  to  yourself  as  Captain  General  and  Governor  in  Chief  of  Our  said 
Province,  and  to  other  Our  succeeding  Captains  General  and  Governors 
in  Chief  for  supporting  the  Dignity  of  the  same  Office,  as  likewise  due 
Provision  for  the  Contingent  Charges  of  Our  Council  and  Assembly,  and 
for  the  Salaries  of  the  respective  Clerks  and  other  Officers  thereunto  be- 
longing, as  likewise  of  all  other  Officers  necessary  for  the  Administration 
of  that  Gover[n]ment,  and  particularly  that  such  Salaries  be  enacted  to  be 
paid  in  Sterling  or  Proclamation  Money  or  in  paper  Bills  of  Credit  current 
in  that  Province  in  proportion  to  the  Value  such  Bills  shall  pass  at  in  Ex- 
change for  Silver,  that  thereby  the  respective  Officers  may  depend  on 
some  certain  income,  and  not  be  lyable  to  have  their  Stipends  varied  by 
the  uncertain  Value  of  Paper  Money,  and  that  in  such  Act  all  Officers 
Salaries  be  fixed  to  some  reasonable  yearly  Sum,  except  the  Members  of 
the  Council  and  Assembly  and  the  Officers  attending  them,  or  others 

proved  &  confirm'd  by  Us  Our  Heirs  &  Successors.  And  it  is  Our  further  Will  dr* 
Pleasure  that  you  do  not  give  your  Assent  to  or  pass  any  Act  in  Our  said  Province 
of  New  Jersey  under  your  Government,  for  payment  of  Money  either  to  you  the 
Governor  or  to  any  Lieu?  Governor  or  Commander  in  chief  or  to  any  of  the  Mem- 
bers of  Our  Council  or  to  any  other  Person  whatsoever  except  to  Us  Our  Heirs  and 
Successors  without  a  Clause  be  like  wise  inserted  in  such  Act  declaring  that  the 
same  shall  not  take  effect  until  the  said  Act  shall  have  been  approv'd  and  con- 
firm'd by  Us  Our  Heirs  or  Successors  :  "  New  Jersey  Documents,  vi.  15,  §  19. 
For  Belcher's  instructions,  see  Ibid.,  vii.  5. 

16 


242  APPENDIX  A. 

whose  Attendance  on  the  publick  is  uncertain,  who  may  have  a  reasonable 
pay  established  per  Diem  during  their  Attendance  only ;  And  when  such 
Revenue  shall  have  been  so  settled  and  Provision  made  as  afore  said,  then 
Our  express  Will  6^  Pleasure  is,  that  neither  you  Our  Governor,  nor  any 
Governor,  Lieuten'  Governor,  Commander  in  Chief,  or  President  of  Our 
Council  of  Our  said  Province  of  New  Jersey  for  the  time  being,  do  give 
your  or  their  Consent  to  the  passing  of  any  Law  or  Act  for  any  Gift  or 
Present  to  be  made  to  You  or  them  by  the  Assembly ;  and  that  neither 
you  nor  they  do  receive  any  Gift  or  Present  from  the  Assembly  or  others 
on  any  Account  or  in  any  Manner  whatsoever,  upon  pain  of  Our  Highest 
Displeasure  and  of  being  recalled  from  that  Our  Government.  And  We 
do  further  direct  and  require  that  this  Declaration  of  Our  Royal  Will  and 
Pleasure  be  communicated  to  the  Assembly  at  their  first  meeting  after 
your  Arrival  in  Our  said  Province,  and  entred  in  the  Register  of  Our 
Council  and  Assembly,  that  all  Persons,  whom  it  may  concern,  may  gov- 
ern themselves  accordingly. 

24.  ^«^  whereas  an  Act  of  Parliament  was  passed  in  the  sixth  Year 
of  the  Reign  of  Her  late  Majesty  Queen  Anne,  intituled  an  act  for  ascer- 
taining the  Rates  of  foreign  Coins  in  Her  Majesty's  Plantatiotis  in  America, 
which  Act  the  respective  Governors  of  all  Our  Plantations  in  America 
have  from  time  to  time  been  instructed  to  observe  and  carry  into  execu- 
tion ;  And  whereas  notwithstanding  the  same.  Complaints  have  been  made, 
that  the  said  Act  has  not  been  observed,  as  it  ought  to  have  been,  in  many 
of  Our  Colonies  and  Plantations  in  America,  by  means  whereof  many  in- 
direct Practices  have  grown  up,  and  various  and  illegal  Currencies  have 
been  introduced  in  several  of  the  said  Colonies  and  plantations,  contrary 
to  the  true  intent  and  meaning  of  the  said  Act,  and  to  the  prejudice  of 
the  Trade  of  Our  Subjects  ;  It  is  therefore  Our  Royal  Will  6-  Pleasure, 
and  you  are  hereby  strictly  required  and  commanded,  under  pain  of  Our 
highest  Displeasure  and  of  being  removed  from  your  Government,  to  take 
the  most  effectual  care  for  the  future,  that  the  said  Act  be  punctually  and 
bona  fide  observed  and  put  in  execution,  according  to  the  true  Intent 
and  meaning  thereof 

25.  y^«// whereas  complaint  has  been  made  to  Us  by  the  Merchants 
of  Our  City  of  London  in  behalf  of  themselves  and  of  several  others  of 
Our  good  Subjects  of  Great  Britain  trading  to  Our  Plantations  in  Amer- 
ica, that  greater  Duties  and  Impositions  are  laid  on  their  Ships  and  Goods, 
than  on  the  Ships  and  Goods  of  Persons  who  are  Natives  and  Inhabitants 
of  the  said  Plantations  \  It  is  therefore  Our  Will  ^^  Pleasure,  that  you  do 
not,  on  pain  of  Our  Highest  Displeasure  give  your  Assent  for  the  future 


INSTRUCTIONS  TO  BERNARD.  243 

to  any  Law,  wherein  the  Natives  or  Inhabitants  of  Our  Province  of  New 
Jersey,  under  Your  Government  are  put  on  a  more  advantageous  footing, 
than  those  of  this  Kingdom,  or  whereby  Duties  shall  be  laid  upon  British 
Shipping,  or  upon  the  Product  or  Manufactures  of  Great  Britain  upon  any 
Pretence  whatsoever. 

26.  Whereas  Acts  have  been  passed  in  some  of  Our  Plantations  in 
America  for  laying  Duties  on  the  Importation  and  exportation  of  Ne- 
groes, to  tlie  great  Discouragement  of  the  Merchants  trading  thither  from 
the  Coast  of  Africa ;  and  whereas  Acts  have  likewise  been  passed  for  lay- 
ing Duties  on  Felons  imported,  in  direct  Opposition  to  an  Act  of  Parlia- 
ment passed  in  the  fourth  Year  of  His  late  INIajesty's  Reign,/<7r  the  further 
preventing  Jobbery,  Burglary,  and  other  Felotiies,  and  for  the  more  effec- 
tual  Transportatio7i  of  Felons ;  it  is  Our  Pleasure,  that  you  do  not  give 
your  assent  to  or  pass  any  Act  imposing  Duties  upon  Negroes  imported 
into  the  said  province  under  your  Government,  payable  by  the  importer,  or 
upon  any  Slaves  exported  that  have  not  been  sold  in  the  said  Province, 
and  continued  there  for  the  space  of  twelve  Months:  It  is  Our ftirther 
Will  &>  Pleasure,  that  you  do  not  give  your  Assent  to  or  pass  any  Act 
whatsoever  for  imposing  Duties  on  the  importation  of  any  Felons  from 
this  Kingdom  into  the  province  under  Your  Government. 

2  7.  You  are  likewise  to  examine,  what  Rates  and  Duties  are  charged 
and  payable  upon  any  Goods  imported  or  exported  within  Our  Province 
of  Nova  Caesarea  or  New  Jersey,  whether  of  the  growth  or  Manufacture 
of  Our  said  Province  or  otherwise  ;  and  you  are  to  suppress  the  engross- 
ing of  Commodities,  as  tending  to  the  prejudice  of  that  Freedom  which 
Trade  and  Commerce  ought  to  have  :  And  to  use  your  best  Endeavours 
for  the  Improvement  of  Trade  in  those  parts  by  settling  such  Orders  and 
Regulations  therein,  with  the  advice  of  the  Council,  as  may  be  most  ac- 
ceptable to  the  generality  of  the  Inhabitants;  and  to  send  unto  Our 
Commissioners  for  Trade  and  Plantations,  in  Order  to  be  laid  before 
Us,  yearly  or  oftener  as  occasion  may  require,  the  best  and  most  par- 
ticular Account  of  any  Laws  that  have  at  any  time  been  made,  Manufac- 
tures set  up,  or  Trade  carried  on  in  the  province  under  your  Government, 
which  may  in  any  wise  affect  the  Trade  and  Navigation  of  this  Kingdom. 

28.  You  are  to  transmit  Authentick  Copies  of  all  Laws,  Statutes  and 
Ordinances  that  are  now  made  and  in  Force  which  have  not  yet  been 
sent,  or  which  at  any  time  hereafter  shall  be  made  or  enacted  within 
the  said  province,  each  of  them  separately  under  the  Publick  Seal  unto 
Our  said  Commissioners  for  Trade  and  Plantations  within  three  months 
or  by  the  first  Opportunity  after  their  being  enacted,  together  with  Dupli- 


244  APPENDIX  A, 

cates  thereof  by  the  next  Conveyance,  upon  pain  of  Our  higfhjest  Dis- 
pleasure and  of  the  Forfeiture  of  that  year's  Salary,  wherein  you  shall  at 
any  time  or  upon  any  pretence  whatsoever,  omit  to  send  over  the  said 
Laws,  Statutes  and  Ordinances,  as  aforesaid,  within  the  time  above  Hm- 
ited,  as  also  of  such  other  penalty  as  We  shall  please  to  inflict ;  but  if  it 
shall  happen,  that  no  shipping  shall  come  from  the  said  Province  within 
three  Months  after  the  making  such  Laws,  Statutes  and  Ordinances, 
whereby  the  same  may  be  transmitted,  as  aforesaid,  then  the  said  Laws, 
Statutes  and  Ordinances  are  to  be  transmitted,  as  aforesaid,  by  the  next 
Conveyance  after  the  making  thereof,  whenever  it  may  happen,  for  Our 
Approbation  or  Disallowance  of  the  same. 

29.  And  Our  further  Will  6^  Pleasure  is,  that  the  Copies  and  Dupli- 
cates of  all  Acts  that  shall  be  transmitted,  as  aforesaid,  be  fairly  abstracted 
in  the  Margin,  and  that  in  every  Act  there  be  the  several  Dates  or  re- 
spective times  when  the  same  passed  the  Assembly  and  the  Council  and 
receiv'd  Your  Assent ;  and  you  are  to  be  as  particular  as  may  be  in  your 
Observations  (to  be  sent  to  Our  Commissioners  for  Trade  and  Planta- 
tions) upon  every  Act,  that  is  to  say,  whether  the  same  is  introductive  of 
a  New  Law,  declaratory  of  a  former  Law,  or  does  repeal  a  law  then  be- 
fore in  being,  And  you  are  likewise  to  send  to  Our  said  Commissioners 
the  reasons  for  the  passing  of  such  law,  unless  the  same  do  fully  appear 
in  the  preamble  of  the  said  Act. 

30.  You  are  to  require  the  Secretary  of  Our  said  Province  or  his 
Deputy  for  the  time  being  to  furnish  you  with  Transcripts  of  all  such 
Acts  and  publick  Orders  as  shall  be  made  from  time  to  time,  together 
with  a  Copy  of  the  Journals  of  the  Council ;  and  that  all  such  transcripts 
and  Copies  be  fairly  abstracted  in  the  Margins,  to  the  end  the  same 
may  be  transmitted  to  Our  Commissioners  for  Trade  and  Plantations,  as 
above  directed,  in  Order  to  be  laid  before  Us ;  which  he  is  duly  to  per- 
form upon  Pain  of  incurring  the  Forfeiture  of  his  place. 

31.  You  are  also  to  require  from  the  Clerk  of  the  Assembly  or  other 
proper  Officer  transcripts  of  all  the  said  Journals,  and  other  proceedings 
of  the  said  Assembly ;  and  that  all  such  transcripts  be  fairly  abstracted 
in  the  Margins,  to  the  end  the  same  may  in  like  manner  be  transmitted, 
as  aforesaid. 

32.  Whereas  it  is  necessary  that  Our  Rights  and  Dues  be  preserved 
and  recovered,  and  that  speedy  and  effectual  Justice  be  administred  in 
all  Cases  relating  to  Our  Revenue  ;  you  are  to  take  Care  that  a  Court  of 
Exchequer  be  called  and  do  meet  at  all  such  times  as  shall  be  needfull ; 
and  you  are  upon  your  Arrival  to  inform  us  by  Our  Commissioners  for 


INSTRUCTIONS   TO  BERNARD.  245 

Trade  and  Plantations,  whether  Our  Service  may  require  that  a  Constant 
Court  of  Exchequer  be  settled  and  established  there. 

33.  You  shall  not  erect  any  Court  or  Office  of  Judicature  not  before 
erected  or  established,  nor  dissolve  any  Court  or  Office  already  erected 
or  establish'd  without  Our  especial  Order.  But  in  regard  We  have  been 
informed,  that  there  is  a  great  Want  of  a  particular  Court  for  determining 
of  small  Causes,  you  are  to  recommend  it  to  the  Assembly  of  Our  said 
Province,  that  a  Law  be  passed,  if  not  already  done,  for  the  constituting 
such  Court  or  Courts  for  the  Ease  of  Our  Subjects  there. 

34.  A7id  whereas  frequent  Complaints  have  been  made  to  Us  of  great 
Delays  and  undue  proceedings  in  the  Courts  of  Justice  in  several  of  Our 
Plantations,  whereby  many  of  Our  Subjects  have  very  much  suffered  ;  and 
it  being  of  the  greatest  importance  to  Our  Service  and  to  the  Welfare 
of  our  Plantations,  that  Justice  be  every  where  speedily  and  duly  admin- 
istered, and  that  all  Disorders,  Delays  and  undue  Practices  in  the  Ad- 
ministration thereof  be  effectually  prevented  ;  We  do  particularly  require 
you  to  take  especial  Care,  that  in  all  Courts,  where  you  are  authorized 
to  preside,  Justice  be  impartially  administered,  and  that  in  all  other 
Courts  established  within  Our  said  province  all  Judges  and  other  Per- 
sons therein  concerned  do  likewise  perform  their  several  Duties  without 
any  Delay  or  partiality. 

35.  You  are  to  take  Care  that  no  Man's  Life,  Member,  Freehold  or 
Goods  be  taken  away  or  harmed  in  Our  said  province,  otherwise  than 
by  established  and  Known  Laws,  not  repugnant  to,  but  as  much  as  may 
be  agreeable  to,  the  Laws  of  this  Kingdom. 

36.  It  is  Our  further  Will  6^  Pleasure,  that  no  persons  be  sent  as 
Prisoners  from  [to]  this  Kingdom,  from  New  Jersey  without  sufficient 
Proofs  of  their  Crimes,  and  that  Proof  transmitted  along  with  the  said 
Prisoners. 

37.  You  shall  endeavour  to  get  a  Law  passed  (if  not  already  done)  for 
the  restraining  of  any  Inhuman  Severity,  which  by  ill  Masters,  or  Over- 
seers may  be  used  toward  their  Christian  Servants,  and  their  Slaves ;  and 
that  Provision  be  made  therein,  that  the  willfuU  killing  of  Indians  and  ne- 
groes may  be  punish'd  with  Death,  and  that  a  fit  Penalty  be  imposed  for 
the  maiming  of  them. 

38.  You  are  to  take  Care  that  all  Writs  be  issued  in  Our  Name  through- 
out Our  said  Province. 

39.  Our  Will  d^*  Pleasure  is,  that  you  or  the  Commander  in  Chief  of 
Our  said  province  for  the  time  being,  do  in  all  civil  Causes,  on  Applica- 
tion being  made  to  you  or  the  Commander  in  Chief  for  the  time  being, 


246  APPENDIX  A. 

for  that  purpose,  permit  and  allow  Appeals  from  any  of  the  Courts  of 
common  Law  in  Our  said  province  unto  You  or  the  Commander  in  Chief 
or  the  Council  of  our  said  Province  ;  and  you  are  for  that  purpose  to 
issue  a  Writ  in  the  manner  which  has  usually  been  accustomed,  return- 
able before  yourself  and  the  Council  of  Our  said  Province,  who  are  to  pro- 
ceed to  hear  and  determine  such  Appeal,  wherein  such  of  Our  Council 
[as]  shall  be  at  that  time  Judges  of  the  Court,  from  whence  such  Appeal 
shall  be  so  made  to  you  Our  Captain  General  or  to  the  Commander  in 
Chief  for  the  time  being,  and  to  Our  said  Council,  as  aforesaid,  shall  not 
be  permitted  to  vote  upon  the  said  Appeal ;  but  they  may  nevertheless 
be  present  at  the  hearing  thereof  to  give  the  Reasons  of  the  Judgement 
given  by  them  in  the  Causes  wherein  such  Appeals  shall  be  made ;  pro- 
vided nevertheless  that,  in  all  such  Appeals,  the  Sum  or  Value  appealed 
for,  do  exceed  the  Sum  of  three  hundred  pounds  Sterling,  and  that  Se- 
curity be  first  duly  given  by  the  Appellant  to  answer  such  Charges  as  shall 
be  awarded,  in  Case  the  first  Sentence  be  affirmed,  and  if  either  party 
shall  not  rest  satisfyed  with  the  judgment  of  you  or  the  Commander  in 
Chief  for  the  time  being  and  Council,  as  aforesaid,  Our  Will  6^  Pleasure 
is,  that  they  may  then  appeal  unto  Us  in  Our  privy  Council,  provided 
the  Sum  or  Value  so  appealed  for  unto  Us  exceed  five  hundred  pounds 
Sterling,  and  that  such  Appeals  be  made  within  fourteen  days  after  Sen- 
tence, &  good  Security  given  by  the  Appellant,  that  he  will  effectually 
prosecute  the  same,  and  answer  the  Condemnation,  as  also  pay  such 
Costs  and  Damages  as  shall  be  awarded  by  Us,  in  Case  the  Sentence  of 
you  or  the  Commander  in  Chief  for  the  time  being  and  Council  be  af- 
firmed ;  provided  nevertheless,  where  the  matter  in  question  relates  to 
the  taking  or  demanding  any  Duty  payable  to  Us,  or  to  any  Fee  of  Office, 
or  annual  Rent  or  other  such  like  matter  or  thing,  where  the  Rights  in 
future  may  be  bound,  in  all  such  cases  you  are  to  admit  an  Appeal  to  Us 
in  Our  privy  Council,  though  the  immediate  Sum  or  value  appealed  for 
be  of  a  less  Value ;  and  it  is  Our  further  Will  6-  Pleasure,  that  in  all 
cases  whereby  [where  by]  your  Instructions,  you  are  to  admit  Appeals  to 
Us  in  Our  privy  Council,  execution  be  suspended  until  the  final  Determi- 
nation of  such  Appeals,  unless  good  and  sufficient  Security  be  given  by 
the  Appellee  to  make  ample  Restitution  of  all  that  the  Appellant  shall 
have  lost  by  means  of  such  judgment  or  Decree,  in  case  upon  the  Deter- 
mination of  such  Appeal  such  Decree  or  Judgment  should  be  reversed, 
and  Restitution  awarded  to  the  Appellant. 

40.   Yoii  are  also  to  permit  Appeals  to  Us  in  Council  in  all  Cases  of 
Fines  imposed  for  Misdemeanors,  provided  the  Fines  so  imposed  amount 


INSTRUCTIONS   TO  BERNARD.  247 

to  or  exceed  the  Value  of^2oo  Sterling,  the  Appellant  first  giving  good 
security,  that  he  will  effectually  prosecute  the  same,  and  answer  the  Con- 
demnation if  the  Sentence  by  which  such  Fine  was  imposed  in  Our  said 
province  of  New  Jersey,  shall  be  confirmed. 

41.  You  shall  not  appoint  any  person  to  be  a  Judge  or  Justice  of  the 
peace  without  the  Advice  and  Consent  of  at  least  three  of  Our  Council 
signified  in  Council ;  nor  shall  you  execute  yourself  or  by  Deputy  any  of 
the  said  Otifices  ;  And  it  is  Our  further  Will  6-  Pleasure,  that  all  Com- 
missions to  be  granted  by  you  to  any  person  or  persons  to  be  Judges, 
Justices  of  the  Peace,  or  other  necessary  Officers  be  granted  during 
Pleasure  only. 

42.  You  shall  not  displace  any  of  the  Judges,  Justices,  Sheriffs  or  other 
Officers  or  Ministers  within  Our  said  Province  without  good  and  sufficient 
cause,  which  you  shall  signify  in  the  fullest  and  most  distinct  manner  to 
Our  said  Commissioners  for  Trade  and  Plantations,  in  order  to  be  laid 
before  Us,  by  the  first  Opportunity  after  such  Removal. 

43.  You  shall  not  suffer  any  Person  to  execute  more  Offices  than  one 
by  Deputy. 

44.  You  are,  with  the  Advice  and  Consent  of  Our  said  Council,  to  take 
especial  Care  to  regulate  all  Salaries  and  Fees  belonging  to  places,  or 
paid  upon  Emergencies,  that  they  be  within  the  Bounds  of  Moderation  ; 
and  that  no  exaction  be  made  on  any  Occasion  whatsoever ;  as  also  that 
all  Tables  of  Fees  be  publickly  hung  up  in  all  places  where  such  Fees  are 
to  be  paid  ;  and  you  are  to  transmit  Copies  of  all  such  Tables  of  Fees  to 
our  Commissioners  for  Trade  and  Plantations,  in  order  to  be  laid  before 
Us,  as  aforesaid. 

45.  Whereas  there  are  several  Offices  in  Our  Plantations,  granted  under 
Our  great  Seal  of  this  Kingdom,  and  that  Our  Service  may  be  very  much 
prejudiced  by  reason  of  the  absence  of  the  Patentees,  and  by  their  ap- 
pointing Deputies  not  fit  to  officiate  in  their  stead,  you  are  therefore,  upon 
your  Arrival,  to  inspect  such  of  the  said  Offices  as  are  in  your  Government, 
and  to  enquire  into  the  Capacity  and  behaviour  of  the  Persons  now  exer- 
cising them,  and  to  report  thereupon  to  Our  Commissioners  for  Trade  and 
Plantations,  what  you  think  fit  to  be  done  or  altered  in  relation  there- 
unto ;  and  you  are  upon  the  misbehaviour  of  any  of  the  said  Patentees, 
or  their  Deputies,  to  suspend  them  from  the  Execution  of  their  places, 
till  you  shall  have  represented  the  whole  matter  and  receiv'd  Our  Direc- 
tions therein ;  and  in  case  of  the  Death  of  any  such  Deputy,  It  is  Our 
express  Will  &>  Pleasure,  that  you  take  Care  the  Person  appointed 
to  execute  the  place,  untill  the  Patentee  can  be  informed  thereof  and 


248  APPENDIX  A. 

appoint  another  Deputy,  do  give  sufficient  Security  to  the  Patentee,  or 
in  case  of  Suspension  to  the  person  suspended,  to  be  answerable  to  him 
for  the  Profits  accruing  during  such  interval  by  Death  or  during  suspen- 
sion, in  Case  we  shall  think  fit  to  restore  him  to  his  place  again.  It  is 
nevertheless  Our  Will  (5n  Pleasure,  that  the  person  executing  the  place 
during  such  Suspension,  shall,  for  his  Encouragement  receive  the  same 
profits  as  the  Person  dead  or  suspended  did  receive  ;  And  it  is  Our  fur- 
ther Will  &  Pleasure  that  in  Case  of  the  Suspension  of  a  Patentee,  the 
person  appointed  by  you  to  execute  the  Office,  during  such  Suspension, 
shall,  for  his  encouragement,  receive  a  Moiety  of  the  Profits  which  would 
otherwise  [have]*  accrued  and  become  due  to  such  patentee,  giving  Se- 
curity to  such  Patentee  to  be  answerable  to  him  for  the  other  Moiety,  in 
case  We  shall  think  fit  to  restore  him  to  his  place  again :  And  it  is  Our 
further  Will  ^  Pleasure  that  you  do  countenance  and  give  all  due  en- 
couragement to  all  Our  Patent  Officers,  in  the  enjoyment  of  their  legal 
and  accustomed  Fees,  Rights,  Priviledges,  and  Emoluments,  according 
to  the  true  Intent  and  meaning  of  their  Patents. 

46.  You  shall  not,  by  Colour  of  any  Power  or  Authority  hereby  or 
otherwise  granted  or  mention'd  to  be  granted  unto  you,  take  upon  you 
to  give,  grant  or  dispose  of  any  Office  or  place  within  Our  said  Province, 
which  now  is  or  shall  be  granted  under  the  great  Seal  of  Great  Britain  or 
to  which  any  person  is  or  shall  be  appointed  by  Warrant  under  Our  Signet 
or  Sign  Manual,  any  otherwise  than  that  you  may,  upon  the  Vacancy  of 
any  such  Office  or  Place,  or  Suspension  of  any  such  Officer  by  you,  as 
aforesaid,  put  in  any  fit  person  to  officiate  in  the  interval,  till  you  shall 
have  represented  the  matter  unto  Our  Commissioners  for  Trade  and 
Plantations,  in  order  to  be  laid  before  us,  as  aforesaid,  which  you  are  to 
do  by  the  first  Opportunity,  and  untill  the  said  Office  or  Place  be  dis- 
posed of  by  Us,  our  Heirs  or  Successors,  under  the  Great  Seal  of  Great 
Britain,  or  until  some  Person  shall  be  appointed  thereto  under  Our  Signet 
or  Sign  Manual,  or  that  Our  further  Directions  be  given  therein. 

47.  And  whereas  several  Complaints  have  heretofore  been  by  made 
[made  by]  the  Surveyor  General  and  other  Officers  of  Our  Customs  in 
Our  Plantations  in  America,  that  they  have  been  frequently  obliged  to 
serve  on  Juries  and  personally  to  appear  in  Arms,  whenever  the  Militia 
is  drawn  out,  and  thereby  are  much  hindred  in  the  Execution  of  their 
Employments,  Our  Will  and  Pleasure  is,  that  you  take  effectual  Care  and 
give  the  necessary  Directions,  that  the  several  Officers  of  Our  Customs 
be  excused  and  exempted  from  serving  on  any  Juries. 

48.  A7id  whereas  the  Surveyors  General  of  Our  Customs  in  the  Plan- 


INSTRUCTIONS  TO  BERNARD.  249 

tations  are  impower'd  in  case  of  the  Vacancy  of  any  our  Offices  of  the 
Customs  by  Death,  Removal  or  otherwise,  to  appoint  other  Persons  to 
execute  such  Offices  untill  they  receive  further  Directions  from  Our 
Commissioners  of  Our  Treasury,  or  Our  High  Treasurer  or  Commission- 
ers of  Our  Customs  for  the  time  being,  but  in  regard  the  Districts  of  the 
said  Surveyors  General  are  very  extensive,  and  that  they  are  required  at 
proper  times  to  visit  the  Officers  in  the  several  Governments  under  their 
Inspection,  and  that  it  may  happen,  that  some  of  the  Officers  of  Our 
Customs  in  the  Province  of  Nova  Ca^sarea  or  New  Jersey,  may  dye  at 
the  time  when  the  Surveyor  is  absent  in  some  distant  part  of  his  Dis- 
trict, so  that  he  cannot  receive  Advice  of  such  Officer's  Death  within  a 
reasonable  time  and  thereby  make  Provision  for  carrying  on  the  Service, 
by  appointing  some  other  Person  in  the  room  of  such  Officer  who  may 
happen  to  die,  therefore  that  there  may  be  no  delay  given  on  such 
Occasion  to  the  Masters  of  Ships  or  Merchants  in  their  Dispatches,  It 
is  Our  further  Will  dv  Pleasure,  in  case  of  such  Absence  of  the  Sur- 
veyor General,  or  if  he  should  happen  to  die,  and  in  such  Cases  only, 
that  upon  the  Death  of  any  Collector  of  Our  Customs  within  that  Our 
Province,  you  shall  make  choice  of  a  Person  of  Known  Loyalty,  Ex- 
perience, Diligence  and  Fidelity,  to  be  imploy'd  in  such  Collectors 
room  for  the  purposes  aforesaid,  untill  the  Surveyor  General  of  Our 
Customs  shall  be  advised  thereof,  and  appoint  another  to  succeed  in 
their  places  or  that  further  Directions  shall  be  given  therein  by  Our 
Commissioners  of  Our  Treasury,  or  Our  High  Treasurer,  or  by  the 
Commissioners  of  Our  Customs  for  the  time  being,  which  shall  be  first 
signified,  taking  Care  that  you  do  not  under  pretence  of  this  Instruc- 
tion, interfere  with  the  Powers  and  Authorities  given  by  the  Commis- 
sioners of  Our  Customs  to  the  said  Surveyors  General,  when  they  are 
able  to  put  the  same  in  Execution. 

49.  Whereas  it  is  convenient  for  Our  Service,  that  all  the  Surveyors 
Gen!  of  Our  Customs  in  America  for  the  time  being  should  be  admitted 
to  sitt  and  vote  in  the  respective  Councils  of  Our  several  Islands  and 
Provinces  within  their  Districts  as  Councillors  extraordinary,  during  the 
time  of  their  Residence  there.  We  have  therefore  thought  fit  to  constitute 
and  appoint,  and  do  hereby  constitute  and  appoint  the  Surveyor  General 
of  Our  Customs  for  the  Northern  District  and  the  Surveyor  General  ot 
Our  Customs  within  the  said  District  for  the  time  being,  to  be  Councillors 
extraordinary  in  Our  said  Province.  And  it  is  Our  Will  ^^  Pleasure, 
that  he  and  they  be  admitted  to  sit  and  vote  in  the  said  Council,  as 
Councillors  extraordinary,  during  the  time  of  his  or  their  Residence 


250  APPENDIX  A. 

there ;  But  it  is  Our  Intention,  if  thro'  length  of  time  the  said  Sur- 
veyor General  or  any  other  Surveyor  General  should  become  the  senior 
Councillor  in  Our  said  Province,  that  neither  he  nor  they  shall  by  virtue 
of  such  Seniority,  be  ever  capable  to  take  upon  him  or  them  the  Ad- 
ministration of  the  Government  there,  upon  the  Death  or  Absence  of 
Our  Captains  Gen!  or  Governors  in  chief  for  the  time  being ;  but  when- 
ever such  Death  or  Absence  shall  happen,  the  Government  shall  devolve 
upon  the  Councillor  next  in  seniority  to  the  Surveyor  General,  unless 
We  should  hereafter  think  it  for  Our  Royal  Service  to  nominate  the  said 
Surveyor  General  or  any  other  of  Our  said  Surveyors  General  Councillors 
in  ordinary  in  any  of  Our  Governments  within  their  Survey,  who  shall  not 
in  the  [that]  Case  be  excluded  any  Benefit  which  attends  the  Seniority 
of  their  Rank  in  the  Council. 

50.  It  is  Our  further  Will  ^^  Pleasure^  and  you  are  hereby  required 
by  the  first  Opportunity  to  move  the  Assembly  of  Our  said  Province  un- 
der your  Government,  that  they  provide  for  the  Expence  of  making  Copies 
for  the  Surveyor  General  of  Our  Customs  in  the  said  District  for  the  time 
being,  of  all  Acts  and  Papers  which  bear  any  relation  to  the  Duty  of 
his  Office ;  and  in  the  mean  time  you  are  to  give  Orders,  that  the  said 
Surveyor  General  for  the  time  being,  as  aforesaid,  be  allowed  a  free  In- 
spection in  the  publick  Offices  within  your  Government  of  all  such  Acts 
and  papers  without  paying  any  Fee  or  reward  for  the  same. 

51.  You  are  to  transmit  unto  Our  Commissioners  for  Trade  and  Plan- 
tations, with  all  convenient  speed,  in  Order  to  be  laid  before  Us,  a  par- 
ticular Account  of  all  Establishments  of  Jurisdictions,  Courts,  Offices  and 
Officers,  Powers,  Authorities,  Fees  and  Privileges,  granted  or  settled  or 
which  shall  be  granted  or  settled  within  Our  said  Province,  together  with 
an  Account  of  all  the  Expences  attending  the  Establishments  of  the  said 
Courts,  and  of  such  Funds  as  are  settled  and  appropriated  for  dis- 
charging such  Expences. 

52.  Our  Will  and Pleasicre  is,  that  for  the  better  quieting  the  Minds  of 
Our  good  Subjects  Inhabitants  of  Our  said  Province,  and  for  settling  the 
Properties  and  Possessions  of  all  Persons  concerned  therein,  either  as 
General  Proprietors  of  the  Soil,  under  the  first  original  Grant  of  the  said 
Province  made  by  the  late  King  Charles  the  Second  to  the  late  Duke  of 
York,  or  as  particular  Purchasers  of  any  Parcels  of  Land  from  the  gen- 
eral Proprietors,  you  shall  propose  to  the  General  Assembly  of  Our  said 
Province  the  passing  of  such  Act  or  Acts  whereby  the  Right  or  Property  of 
the  said  General  Proprietors  to  the  soil  of  Our  said  Province  may  be  con- 
firmed to  them  according  to  their  respective  Rights  and  Titles  together  with 


INSTRUCTIONS  TO  BERNARD.  251 

all  such  Quit  Rents,  as  have  been  reserved  or  are  or  shall  become  due  to 
the  said  General  Proprietors  from  the  Inhabitants  of  Our  said  Provmce 
and  all  such  Priviledges  as  are  expressed  in  the  Conveyances,  made  by 
the  said  Duke  of  York  excepting  only  the  Right  of  Government  which 
remains  in  Us,  And  you  are  further  to  take  Care  that  by  the  said  Act  or 
Acts  so  to  be  passed  the  particular  Titles  and  Estates  of  all  the  Inhabi- 
tants of  that  Province  and  other  purchasers,  claiming  under  the  said  Gen- 
eral Proprietors  be  confirmed  &  settled,  as  of  Right  does  appertain, 
under  such  Obligations  as  shall  tend  to  the  best  and  speedyest  Improve- 
ment or  Cultivation  of  the  same  provided  always  that  you  do  not  Con- 
sent to  any  Act  or  Acts  to  lay  any  Tax  upon  unprofitable  Lands. 

53.  You  shall  not  permit  any  other  person  or  persons  besides  the  said 
general  Proprietors  or  Agents  to  purchase  any  Lands  whatsoever  from 
the  Indians  within  the  Limits  of  their  Grants. 

54.  You  are  to  permit  the  Surveyors  and  other  Persons  appointed  by 
the  forementioned  General  Proprietors  of  the  Soil  of  that  Province  for 
surveying  and  recording  the  Surveys  of  Land  granted  by  and  held  of  them 
to  execute  accordingly  their  respective  Trusts  and  you  are  likewise  to 
permit  and  if  need  be  aid  and  assist  such  other  Agent  or  Agents  as  shall 
be  appointed  by  the  said  Proprietors  for  that  End  to  collect  and  receive 
the  Quit  Rents  which  are  or  shall  be  due  unto  them  from  the  particular 
Possessors  of  any  Parcels  or  Tracts  of  Land,  from  time  to  time,  provided 
always  that  such  surveyors  Agents  or  other  Officers  appointed  by  the  said 
General  Proprietors  do  not  only  take  proper  Oaths  for  the  due  Execution 
and  performance  of  their  respective  Offices  or  Employments  And  give 
good  and  sufficient  Security  for  their  so  doing,  but  that  they  likewise  take 
the  oaths  mentioned  in  the  foresaid  Act  entituled,  an  Act  for  the  further 
Security  of  His  Majesty'' s  Person  and  Government  and  the  Succession  of 
the  Crown  in  the  Heirs  of  the  late  princess  Sophia  being  protestants  and 
for  the  extinguishing  the  Hopes  of  the  Pretended  Prince  of  Wales  and  his 
open  and  Secret  Abettors :  as  also  make  and  subscribe  the  Declaration 
aforesaid  and  you  are  more  particularly  to  take  Care  that  all  Lands  pur- 
chased from  the  said  Proprietors  be  cultivated  and  improved  by  the 
possessors  thereof.  And  you  are  to  take  Care  that  no  Fees  be  exacted  or 
taken  by  any  of  the  Officers  under  you,  for  the  Grants  of  Lands  made  by 
the  Agents  of  the  Proprietors,  which  Agents  are  to  deliver  over  to  you  in 
Council  Duplicates  of  all  such  Grants  to  be  registred  in  Our  Council 
Books. 

55.  Whereas  for  some  Years  past  the  Governors  of  some  of  Our  Plan- 
tations have  seized  and  appropriated  to  their  own  use  the  produce  of 


252  APPENDIX  A. 

Whales  of  several  kinds  taken  upon  those  Coasts  upon  pretence  that 
Whales  are  Royal  Fishes,  which  tends  greatly  to  discourage  this  Branch 
of  Fishery  in  Our  Plantations  and  prevent  Persons  from  settling  there,  it 
is  therefore  Our  Will  &  Pleasure  that  you  do  not  pretend  to  any  such 
Claim  nor  give  any  manner  of  discouragement  to  the  fishery  of  Our  Sub- 
jects upon  the  Coast  of  the  Province  under  your  Government  but  on  the 
Contrary  that  you  give  all  possible  Encouragement  thereto. 

56.  You  shall  not  remit  any  fines  or  Forfeitures  whatsoever  above 
the  Sum  of  ten  pounds,  nor  dispose  of  any  Forfeitures  whatsoever,  until 
upon  signifying  unto  Our  Commissioners  of  Our  Treasury  or  Our  High 
Treasurer  for  the  [time?]*  being,  and  to  Our  Commissioners  for  Trade 
and  Plantations  the  Nature  of  the  Offence,  and  the  Occasion  of  such 
Fines  and  Forfeitures  with  the  particular  Sums  or  Value  thereof  (which 
you  are  to  do  with  all  speed)  you  shall  have  receiv'd  Our  Directions 
therein,  but  you  may  in  the  mean  time  suspend  the  payment  of  the  said 
Fines  and  Forfeitures. 

5  7.  Whereas  We  have  thought  it  necessary  for  Our  Ser\'ice  to  consti- 
tute and  appoint  a  Receiver  General  of  the  Rights  and  Perquisites  of  the 
Admiralty.  It  is  therefore  Our  Will  6^  Pleasure  that  you  be  aiding  and 
assisting  to  the  said  Receiver  General ;  his  Deputy  or  Deputies  in  the 
Execution  of  the  said  Office  of  Receiver  General ;  And  we  do  hereby 
require  and  enjoin  you  to  make  up  your  Accounts  with  him,  his  Deputy 
or  Deputies  of  all  Rights  of  Admiralty  as  you  or  your  Officers  have  or 
shall  or  may  receive,  and  to  pay  over  to  the  said  Receiver  General,  his 
Deputy  or  Deputies  for  Our  Use  all  such  Sum  or  Sums  of  Money,  as 
shall  appear  upon  the  foot  of  such  Accounts  to  be  and  remain  in  your 
hands,  or  in  the  Hands  of  any  of  your  Officers ;  And  whereas  Our  said 
Receiver  General  is  directed,  in  case  the  Parties  Chargeable  with  any 
part  of  such  Our  Revenue,  refuse,  neglect  or  delay  payment  thereof,  by 
himself  or  sufficient  Deputy  to  apply  to  Our  Governors,  Judges,  Atter- 
nies  General  or  any  other  Our  Officers  or  Magistrates  to  be  aiding  and 
assisting  to  him  in  recovering  the  same ;  it  is  therefore  Our  Will  &* 
Pleasure  that  you  Our  Governor,  Our  Judges,  Our  Attornies  General 
and  all  other  Our  Officers  whom  the  same  may  concern,  do  use  all  law- 
full  Authority  for  the  recovering  and  levying  thereof. 

58.  You  are  to  permit  a  Liberty  of  Conscience  to  all  Persons  (except 
Papists)  so  they  be  contented  with  a  quiet  and  peaceable  enjoyment 
of  the  same,  not  giving  Offence  or  Scandal  to  the  Government. 

59.  You  shall  take  especial  Care  that  God  Almighty  be  devoutly 
and  duly  served  throughout  your  Government,  the  Book  of  Common 


INSTRUCTIONS   TO  BERNARD.  253 

Prayer  as  by  Law  established,  read  each  Sunday  and  Holy  day  and  the 
blessed  Sacrament  administred  according  to  the  Rites  of  the  Church  of 
England. 

60.  You  shall  be  carefull  that  the  Churches  already  built  there  be  well 
and  orderly  Kept,  and  that  more  be  built,  as  the  province  shall  by  God's 
blessing  be  improved,  and  that  besides  a  competent  Maintenance  to  be 
assign'd  to  the  Minister  of  each  orthodox  Church,  a  Convenient  house 
be  built  at  the  common  Charge  for  each  Minister  and  a  competent  pro- 
portion of  Land  assigned  to  him  for  a  Glebe  and  Exercise  of  His  In- 
dustry, and  you  are  to  take  Care  that  the  parishes  be  bounded  and 
settled  as  you  shall  find  most  convenient  for  the  accomplishing  this 
good  Work. 

61.  You  are  not  to  prefer  any  Minister  to  any  Ecclesiastical  Benefice 
in  that  Our  province  without  a  Certificate  from  the  Right  Reverend 
Father  in  God  the  Lord  Bishop  of  London  of  his  being  conformable  to 
the  Doctrine  and  Discipline  of  the  Church  of  England  and  of  a  good 
Life  and  Conversation,  and  if  any  person  already  preferr'd  to  a  Benefice 
shall  appear  to  you  to  give  Scandal  either  by  his  Doctrine  or  Manners 
you  are  to  use  the  proper  and  usual  means  for  the  removal  of  him. 

62.  You  are  to  give  order  that  every  Orthodox  minister  within  your 
Government  be  one  of  the  Vestry  in  his  respective  parish,  and  that  no 
vestry  be  held  without  him  except  in  Case  of  Sickness,  or  that  after 
Notice  of  a  Vestry  summon'd  he  omit  to  Come. 

63.  You  are  to  enquire  whether  there  be  any  Minister  within  your 
Government  who  preaches  and  administers  the  Sacrament  in  any  Ortho- 
dox Church  or  Chapel  without  being  in  due  Orders  &  to  give  account 
thereof  to  the  said  Lord  Bishop  of  London. 

64.  A7id  to  the  End  the  Ecclesiastical  Jurisdiction  of  the  said  Lord 
Bishop  of  London  may  take  place  in  Our  said  Province  so  far  as  con- 
veniently may  be.  We  do  think  fit  that  you  give  all  Countenance  &  En- 
couragement to  the  Exercise  of  the  Same,  except  only  the  Collating  to 
Benefices,  Granting  Licences  for  marriages,  and  probate  of  Wills,  which 
we  have  reserved  to  you  Our  Governor  and  the  Commissioner  [Com- 
mander?] in  Chief  of  Our  said  province  for  the  time  being. 

65.  We  do  further  direct  that  no  Schoolmaster  be  henceforth  per- 
mitted to  come  from  England  and  to  keep  School  in  the  said  province 
without  the  Licence  of  the  said  Bishop  of  London,  and  that  no  other 
person  now  there  or  that  shall  come  from  other  parts,  shall  be  admitted 
to  keep  School  in  that  Our  said  province  of  New  Jersey,  without  your 
Licence  first  obtained. 


254  APPENDIX  A, 

66.  And  you  are  to  take  especial  Care,  that  a  Table  of  Marriages 
established  by  the  Canons  of  the  Church  of  England  be  hung  up  in 
every  Orthodox  Church  and  duly  observed  And  you  are  to  endeavor  to 
get  a  Law  passed  in  the  Assembly  of  Our  said  Province  (if  not  already 
done)  for  the  strict  Observation  of  the  said  Table. 

67.  The  Right  Reverend  Father  in  God  Edmund  late  Lord  Bishop 
of  London  having  presented  a  pertition  to  his  late  Majesty  Our  Royal 
Father,  humbly  beseeching  him  to  send  Instructions  to  the  Governors  of 
all  the  several  plantations  in  America,  that  they  cause  all  Laws  already 
made  against  Blasphemy,  prophaneness,  Adultry,  Fornication,  Polygamy, 
Incest,  prophanation  of  the  Lord's  day,  Swearing  and  Drunkeness  in  their 
respective  Governments  to  be  vigourously  executed.  And  We  thinking 
it  highly  just  that  all  persons,  who  shall  offend  in  any  of  the  particulars 
aforesaid,  should  be  prosecuted  and  punished  for  their  said  Offences. 
It  is  therefore  Our  Will  and  Pleasure,  that  you  take  due  Care  for  the 
punishment  of  the  forementioned  Vices,  and  that  you  earnestly  recom- 
mend it  to  the  Assembly  of  New  Jersey  to  provide  effectual  Laws  for 
the  Restraint  and  punishment  of  all  such  of  the  aforementioned  Vices 
against  which  no  Laws  are  as  yet  provided,  and  also  you  are  to  use 
your  Endeavors  to  render  the  Laws  in  being  more  effectual  by  pro- 
viding for  the  punishment  of  the  aforementioned  Vices  by  presentment 
upon  Oath  to  be  made  to  the  temporal  Courts  by  the  Church  Wardens 
of  the  several  parishes,  at  proper  times  of  the  year  to  be  appointed  for 
that  Purpose.  And  for  the  further  discouragement  of  vice  and  En- 
couragement of  Virtue  and  good  Living  (that  by  such  Example  the 
Infidels  may  be  invited  and  desire  to  embrace  the  Christian  Religion) 
you  are  not  to  admit  any  person  to  publick  Trusts  and  Employments 
in  the  said  Province  under  your  Government  whose  ill  Fame  and  Con- 
versation may  occasion  Scandal.  And  it  is  Our  further  Will  and 
Pleasure  that  you  recommend  to  the  Assembly  to  enter  upon  proper 
Methods  for  the  erecting  and  maintaining  of  Schools,  in  Order  to  the 
training  up  of  Youth  to  Reading  and  to  a  necessary  Knowledge  of 
the  principals  of  Religion,  and  you  are  also  with  the  Assistance  of  the 
Council  and  Assembly  to  find  out  the  best  means  to  facilitate  and  en- 
courage the  Conve[r]sion  of  Negroes  and  Indians  to  the  Christian 
Religion. 

68.  You  shall  send  unto  Our  Commissioners  for  Trade  and  Plantations 
by  the  first  Conveyance  in  order  to  be  laid  before  us,  an  Account  of  the 
present  Number  of  Planters  and  Inhabitants,  Men,  Women,  and  Children, 
as  well  Masters  as  Servants  free  and  unfree  and  of  the  Slaves  in  Our  said 


INSTRUCTIONS  TO  BERNARD.  255 

province  as  also  an  yearly  Account  of  the  increase  or  decrease  of  them 
and  how  many  of  them  are  fit  to  bear  Arms  in  the  Militia  of  Our  said 
province.  You  shall  also  cause  an  exact  Account  to  be  kept  of  all  Per- 
sons born  and  christned  and  buried,  and  you  shall  yearly  send  fair  Ab- 
stracts thereof  to  Our  Commissioners  for  Trade  and  Plantations  as 
aforesaid. 

69.  And  We  do  further  expressly  command  and  require  you  to  give 
unto  Our  Commissioners  for  Trade  &  plantations  once  in  every  year  the 
best  Account  you  can  procure  of  what  number  of  Negroes  Our  said 
province  is  yearly  suppUed  with. 

70.  You  shall  take  Care  that  all  planters  and  Christian  Servants  be  well 
and  fitly  provided  with  Arms  and  that  they  [be]  listed  under  good  Offi- 
cers and  when  and  as  often  as  shall  be  thought  fit  mustred  and  trained 
whereby  they  may  be  in  a  better  readyness  for  the  defence  of  Our  said 
province  under  your  Government. 

71.  You  are  to  take  especial  care  that  neither  the  frequency  nor  un- 
reasonableness of  their  Marches,  Musters,  and  trainings  be  an  unneces- 
sary Impediment  to  the  affairs  of  the  Inhabitants. 

72.  Yoic  shall  not  upon  any  Occasion  whatsoever  establish  or  put  in 
Execution  any  Articles  of  War  or  other  Law  Martial  upon  any  of  Our 
Subjects,  Inhabitants  of  Our  said  province  without  the  Advice  and 
Consent  of  Our  Council  there. 

73.  And  whereas  there  is  no  Power  given  you  by  your  Commission 
to  execute  Martial  Law  in  time  of  Peace  upon  Soldiers  in  pay  and  that 
nevertheless  it  may  be  necessary  that  some  Care  be  taken  for  the  keeping 
good  Discipline  amongst  those  that  We  may  at  any  time  think  fit  to  send 
into  Our  said  province  (which  may  properly  be  provided  for  by  the 
legislative  power  of  the  same)  you  are  therefore  to  recommend  to  the 
general  Assembly  of  Our  said  province  that  they  prepare  such  Act  or 
Law  for  the  punishing  of  Mutiny,  Desertion  and  false  Musters  and  for 
the  better  preserving  of  good  Discipline  amongst  the  said  Soldiers,  as 
may  best  answer  those  Ends. 

74.  You  are  to  encourage  the  Indians  upon  all  Occasions  so  as  to 
induce  them  to  trade  with  Our  Subjects  rather  than  any  others  of 
Europe. 

75.  Atid  for  the  greater  Security  of  Our  province  of  New  Jersey  you 
are  to  appoint  fit  Officers  and  Commanders  in  the  several  parts  of  the 
Country  bordering  upon  the  Indians  who  upon  any  Invasion  may  raise 
Men  and  Arms  to  oppose  them  till  they  shall  receive  your  Directions 
therein. 


256  APPENDIX  A. 

76.  And  whereas  you  will  receive  from  Our  Commissioners  for  Exe- 
cuting the  Office  of  High  Admiral  of  Great  Britain  and  of  Our  plantations 
a  Commission  of  Vice  Admiralty  of  Our  said  province  of  New  Jersey,  You 
are  hereby  required  and  directed  carefully  to  put  in  execution  the  several 
powers  thereby  granted  you. 

77.  And  there  having  been  great  Irregularities  in  the  Manner  of 
granting  Commissions  in  the  plantations  to  private  Ships  of  War.  You 
are  to  govern  yourself  whenever  there  shall  be  occasion  according  to  the 
Commissions  and  Instructions  granted  in  this  Kingdom,  Copies  whereof 
will  herewith  be  delivered  you.  But  you  are  not  to  grant  Commissions 
of  Marque  or  Reprizal  against  any  Prince  or  State  or  their  Subjects,  in 
Amity  with  us  to  any  Person  whatsoever  without  Our  Especial  Command, 
and  you  are  to  oblige  the  Commanders  of  all  Ships  having  private  Com- 
missions to  wear  no  other  Colours  than  such  as  are  described  in  Our 
Order  6f  Council  of  the  7'''  of  Jan7  1730  in  relation  to  Colours  to  be 
worn  by  all  Ships  and  Vessels  except  Our  own  Ships  of  War.  A  Copy 
of  which  Order  will  be  herewith  be  {sic'l  delivered  to  you. 

78.  Whereas  we  have  been  informed  that  during  the  time  of  War  Our 
Enemies  have  frequently  got  Intelligence  of  the  State  of  Our  plantations 
by  letters  from  private  persons  to  their  Correspondents  in  Great  Britain 
taken  on  Board  Ships  coming  from  the  plantations,  which  may  be  of 
dangerous  Consequence  if  not  prevented  for  the  future.  Our  Will  and 
Pleasure  is,  that  you  signify  to  all  Merchants,  planters  and  others  that 
they  be  very  Cautious  in  time  of  War,  in  giving  any  Account  by  Letters 
of  the  publick  State  and  Condition  of  Our  said  province  of  New  Jersey, 
and  you  are  further  to  give  Directions  to  all  Masters  of  Ships  or  other 
persons  to  whom  you  may  intrust  your  Letters,  that  they  put  such  Letters 
in  a  Bag  with  a  sufficient  Weight  to  sink  the  same  immediately,  in  Case 
of  imminent  danger  from  the  Enemy.  And  you  are  also  to  let  the  Mer- 
chants and  planters  know  how  greatly  it  is  for  their  Interest  that  their 
Letters  should  not  fall  into  the  Hands  of  the  Enemy,  and  therefore  that 
they  should  give  the  like  Orders  to  the  Masters  of  Ships  in  relation 
to  their  Letters.  And  you  are  further  to  advise  all  Masters  of  Ships 
that  they  do  sink  all  Letters  in  Case  of  Danger  in  the  manner  before 
mentioned. 

79.  yi«^  whereas  the  Merchants  and  planters  in  America  have  in  time 
of  War  corresponded  and  traded  with  Our  Enemies  and  carried  Intelli- 
gence to  them,  to  the  great  prejudice  and  Hazard  of  the  English  planta- 
tions. You  are  therefore  by  all  possible  Methods  to  endeavour  to  hinder 
all  such  trade  and  Correspondence  in  time  of  War. 


INSTRUCTIONS  TO  BERNARD.  257 

80.  And  whereas  Commissions  have  been  granted  unto  several  persons 
in  Our  respective  plantations  in  America,  for  the  trying  of  pirates  in  those 
parts  pursuant  to  the  Acts  for  the  more  effectual  Suppression  of  Piracy, 
and  by  a  Commission  already  sent  to  Our  province  of  New  Jersey,  you 
as  Captain  General  and  Governor  in  Chief  of  Our  said  province  are  ira- 
powered  together  with  others  mentioned,  to  proceed  accordingly  in  refer- 
ence to  Our  said  province,  Our  Will  6^  Pleasure  is,  that  in  all  matters 
relating  to  pirates,  you  govern  yourself  according  to  the  Intent  of  the 
Acts  &  Commission  aforementioned. 

81.  Whereas  it  is  absolutely  necessary,  that  we  be  exactly  informed  of 
the  State  of  Defence  of  all  Our  plantations  in  America,  as  well  in  relation 
to  the  Stores  of  War  that  are  in  each  plantation,  as  to  the  forts  and  For- 
tifications there,  and  what  more  may  be  necessary  to  be  built  for  the  De- 
fence and  Security  of  the  same.  You  are  so  soon  as  possible  to  prepare 
an  Account  thereof  with  relation  to  Our  said  province  of  Nova  Ceesarea 
or  New  Jersey  in  the  most  particular  manner,  and  you  are  therein  to 
express  the  present  State  of  the  Arms,  Ammunition  and  other  Stores  of 
War  belonging  to  the  province  either  in  any  publick  Magazines  or  in  the 
hands  of  private  persons  together  with  the  State  of  all  places  either  already 
fortified  or  that  you  judge  necessary  to  be  fortifyed  for  the  Security  of  Our 
said  province,  and  you  are  to  transmit  the  said  Accounts  to  Our  Commis- 
sioners for  Trade  and  plantations,  in  order  to  be  laid  before  us,  as  also  a 
Duplicate  thereof  to  Our  Master  General  or  principal  Officers  of  Our 
Ordnance,  which  Accounts  are  to  express  the  particulars  of  Ordnance, 
Carriages,  Ball,  Powder,  and  all  other  sorts  of  Arms  and  Ammunition  in 
Our  publick  Stores  at  your  said  Arrival,  and  so  from  time  to  time  of  what 
shall  be  sent  to  you  b  [or]  bought  with  publick  Money  and  to  specify 
the  time  of  the  Disposal  and  the  occasion  thereof  and  other  like  Ac- 
counts half  yearly  in  the  same  manner. 

82.  Whereas  divers  Acts  have  from  time  to  time  been  passed  in  several 
of  Our  Colonies  in  America  imposing  a  Duty  of  powder  on  every  Vessel 
that  enters  and  clears  in  the  said  Colonies,  which  has  been  of  great  Service 
in  furnishing  the  Magazines  with  powder  for  the  Defence  of  Our  said  Colo- 
nies in  time  of  Danger :  it  is  Our  Express  Will  &>  Pleasure,  and  you  are 
hereby  required  and  directed  to  recommend  to  the  Assembly  of  New  Jer- 
sey to  pass  a  Law  for  Collecting  a  powder  Duty,  and  that  the  Law  for  that 
purpose  be  made  perpetual,  that  a  certain  time  in  the  said  Act,  not  ex- 
ceeding twelve  months,  be  allowed  for  giving  Notice  thereof  to  the  several 
masters  of  Vessels  trading  to  New  Jersey,  and  that  for  the  more  ample 
Notification  thereof,  a  proclamation  be  also  published  in  your  said  Gov- 

17 


258  APPENDIX  A. 

ernment  declaring  that  from  and  after  the  Expiration  of  the  time  limited 
by  the  said  Act  for  such  Notice,  no  Commutation  shall  be  allovv'd  of  but 
upon  evident  Necessity,  which  may  some  time  happen,  whereof  you  or 
Our  Commander  in  Chief  for  the  time  being  are  to  be  the  Judge ;  in 
which  Case  the  said  Master  shall  pay  the  full  price  Gunpowder  sells  for 
there,  and  the  monies  so  collected  shall  be  laid  out  as  soon  as  may  be 
in  the  purchase  of  Gunpowder ;  and  you  are  also  to  transmit  every  six 
months  to  Our  Commissioners  for  Trade  and  Plantations,  an  Account  of 
the  particular  Quantities  of  Gunpowder  collected  under  the  said  Act  in 
your  Government ;  and  likewise  a  Duplicate  thereof  to  the  Master  Gen- 
eral or  principal  Officers  of  Our  Ordnance. 

83.  You  are  to  take  especial  Care,  that  fit  Storehouses  be  settled 
throughout  Our  said  province  for  receiving  and  keeping  of  Arms,  Am- 
munition, and  other  publick  Stores. 

84.  And  in  Case  of  any  distress  of  any  of  Our  plantations,  you  shall 
upon  Application  of  the  respective  Governors  to  you,  assist  them  with 
what  Aid  the  Condition  and  safety  of  your  Government  will  permit ; 
and  more  particularly  in  Case  Our  province  of  New  York  be  at  any  time 
attacked  by  an  Enemy,  the  Assistance  you  are  to  contribute  towards  the 
Defence  thereof,  whether  in  Men  or  Money,  is  to  be  according  to  the 
Quota  or  Repartition  which  has  already  been  signified  to  the  Inhabitants 
of  Our  foresaid  province  under  your  Government,  or  according  to  such 
other  Regulation  as  We  shall  hereafter  make  in  that  behalf,  and  shall  sig- 
nify to  you  or  the  Commander  in  Chief  of  Our  said  province  for  the  time 
being. 

85.  You  shall  transmit  unto  Our  Commissioners  for  Trade  and  planta- 
tions, by  the  first  Opportunity,  to  be  laid  before  us,  a  Map  with  the  ex- 
act Description  of  Our  whole  Territory  under  your  Government,  and  of 
the  several  plantations  that  are  upon  it. 

86.  You  are  from  time  to  time  to  give  an  Account,  as  before  directed, 
what  Strength  your  bordering  Neighbours  have,  be  the[y]  Indians  or 
others,  by  Sea  &  Land  &  of  the  Condition  of  their  plantations,  &  what 
Correspondence  you  do  keep  with  them. 

87.  You  are  likewise  from  time  to  time  to  give  unto  Our  Commission- 
ers for  Trade  and  Plantations,  as  aforesaid,  in  order  to  be  laid  before  us, 
an  Account  of  the  Wants  and  Defects  of  Our  said  province ;  what  are 
the  Chief  Products  thereof,  what  new  improvements  are  made  therein  by 
the  Industry  of  the  Inhabitants  or  planters  ;  and  what  further  Improve- 
ments you  conceive  may  be  made,  or  Advantages  gained  by  trade,  and 
in  what  manner  We  may  best  Advance  the  same. 


INSTRUCTIONS  TO  BERNARD.  259 

8S.  If  any  thing  shall  happen  that  may  be  of  Advantage  and  Security 
to  Our  said  province,  which  is  not  herein  by  Our  Commission  provided 
for,  We  do  hereby  allow  unto  you,  with  the  Advice  and  Consent  of  Our 
Council,  to  take  order  for  the  present  therein,  giving  unto  Our  Com- 
missioners for  Trade  and  plantations  speedy  notice  thereof,  in  order  to 
be  laid  before  Us,  that  so  you  may  receive  Our  Ratification,  if  We  shall 
approve  of  the  same,  provided  always  that  you  do  not  by  Colour  of  any 
power  or  Authority  given  you,  commence  or  declare  War  without  Our 
Knowledge  and  particular  Commands  therein,  except  it  be  against  Indians 
upon  Emergencies,  wherein  the  Consent  of  Our  Council  shall  be  had  and 
speedy  Notice  given  thereof  unto  Our  Commissioners  for  Trade  and  plan- 
tations in  Order  to  be  laid  before  Us. 

89.  And  whereas  great  Prejudice  may  happen  to  Our  Service  and  the 
Security  of  Our  said  province  under  your  Government  by  your  Absence 
from  those  parts,  you  are  not  upon  any  pretence  whatsoever,  to  come 
to  Europe  from  your  Government,  without  first  having  obtained  leave 
for  so  doing  under  Our  Signet  and  Sign  Manual,  or  by  Our  Order  in 
Our  privy  Council. 

90.  And  whereas  We  have  been  pleased  by  Our  Commission  to 
direct  [that] ,  in  Case  of  your  Death  or  Absence  from  our  said  province, 
and  in  Case  there  be  at  that  time  no  person  upon  the  place  commis- 
sioned or  appointed  by  Us,  to  be  Our  Lieutenant  Governor  or  Com- 
mander in  Chief,  the  eldest  Councillor  whose  name  is  first  placed  in 
these  Instructions  to  you,  and  who  shall  be  at  the  time  of  your  Death 
or  Absence  residing  within  our  said  province,  shall  take  upon  him  the 
Administration  of  the  Government  and  execute  Our  said  Commission  and 
Instructions  and  the  several  powers  and  Authorities  therein  contained, 
in  the  manner  therein  directed;  It  is  nevertheless  Our  express  Will 
and  Pleasure^  that  in  such  Case  the  said  eldest  Councillor,  or  President 
shall  forbear  to  pass  any  Act  or  Acts  [but]  such  as  shall  be  immediately 
necessary  for  the  peace  and  Wellfare  of  Our  said  province  without  Our 
particular  Order  for  that  purpose,  and  that  he  shall  not  take  upon  him  to 
disolve  the  Assembly  then  in  being,  nor  to  remove  or  suspend  any  of 
the  Members  of  Our  said  Council  nor  any  Judges,  Justices  of  the  peace 
or  other  Officers  civil  or  military  without  the  Advice  or  [and]  Consent 
of  at  least  seven  of  the  Council,  and  Our  said  President  is  to  transmit  to 
Our  Commissioners  for  Trade  and  Plantations  by  the  first  Opportunity, 
the  reasons  of  such  Alterations,  signed  by  himself  and  Our  Council,  in 
order  to  be  laid  before  Us. 

91.  And  whereas  We  are  willing  in  the  best  manner  to  provide  for  the 


260  APPENDIX  A. 

support  of  the  Government  of  Our  said  Province  by  setting  a  part  suffi- 
cient Allowances  to  such  as  shall  be  Our  Governor,  Lieutenant  Governor, 
Commander  in  Chief  or  President  of  Our  Council,  residing  for  the  time 
being  within  the  same  ;  Our  Will  &'  Pleasure  therefore  is,  that  when  it 
shall  happen  that  you  shall  be  absent  from  the  Territory  of  New  Jersey 
of  which  We  have  appointed  you  Governor  one  full  moi[e]ty  of  the 
Salary  and  of  all  perquisites  and  Emoluments  whatsoever  which  would 
otherwise  become  due,  unto  you,  shall  during  the  time  of  your  Absence, 
from  the  said  Territory  be  paid  and  satisfyed  unto  such  Governor, 
Lieutenant  Governor,  Commander  in  Chief  or  President  of  Our  Council, 
who  shall  be  resident  upon  the  place  for  the  time  being,  which  We  do 
hereby  order  and  allot  unto  him,  towards  his  maintenance,  and  for  the 
better  support  of  the  Dignity  of  that  Our  Government. 

92.  And  you  are  upon  all  Occasions  to  send  unto  Our  Commissioners 
for  Trade  and  plantations  only,  a  particular  Account  of  all  your  proceed- 
ings and  of  the  Condition  of  Affairs  within  your  Government,  in  order  to 
be  laid  before  Us,  provided  nevertheless  whenever  any  Occurrence  shall 
happen  within  your  Government  of  such  a  Nature  and  importance  as  may 
require  Our  more  immediate  Direction  by  one  of  Our  principal  Secretaries 
of  State,  and  also  upon  all  Occasions  &  in  all  Affairs  wherein  you  may  re- 
ceive Our  Orders  by  one  of  the  principal  Secretaries  of  State,  you  shall  in 
all  such  Cases  transmit  to  the  Secretary  of  State  only,  an  Account  of  all 
such  Occurrences  &  of  your  proceedings  relative  to  such  Orders.^  * 

1  This  draft  of  instructions  was  approved  by  an  order  of  council  dated  April  i, 
1758.  The  instructions  were  dated  January  31,  1758.  See  Analytical  Index  to  ike 
Colonial  Documents  of  New  Jersey  (New  Jersey  Historical  Society,  Collections,  V.), 

345- 

*  In  the  foregoing  documents  taken  from  the  A^-w  Jersey  Documents,  the  brack- 
eted insertions  marked  with  an  asterisk  are  reproduced  from  the  text  as  there 
printed.  All  others  in  the  Appendices  have  been  added  by  the  present  editor. 
With  this  exception  and  that  noted  on  page  226,  all  the  documents  here  given  fol- 
low the  previously  printed  text  as  indicated  in  the  heading  of  each  document. 


COMMISSION  TO   HAMILTON.  261 

6.     COMMISSION   TO   JAMES    HAMILTON   AS    PROPRIETARY 
GOVERNOR   OF   PENNSYLVANIA,  1759. 

[From  Mimites  of  the  Provincial  Council  of  Pennsylvania  (^Pennsylvania  Records), 

viii.  409.] 

THOMAS  PENN  and  RICHARD  FENN,  true  and  absolute 
Froprietaries  and  Governors-in-Chief  of  the  Frovince  of  Fennsylvania, 
and  Cotmties  of  Newcastle,  Kent,  and  Suss\e~\x^  on  Delaware, 

To  James  Ha7?iilton,  Esquire,  Greeting: 

Whereas,  the  late  King  Charles  the  second,  by  his  Letters  Patent, 
under  the  Great  Seal  of  England,  bearing  date  the  fourth  day  of  march, 
in  the  Thirty-third  year  of  his  Reign,  was  graciously  pleased  to  grant 
unto  William  Penn,  Esquire,  (late  Father  of  the  said  Thomas  Penn  and 
Richard   Penn,    since   deceased),    His    Heirs    and   Assigns,   The   said 
Province  of  Pennsylvania,  with  large  powers,  Jurisdictions,  and  Author- 
ities for  the  well-Governing,  Safety,  Defence,  and  preservation  of  the 
said  Province  and  the  People  residing  therein,  and  more  particularly  to 
do  and  perform  sundry  matters  and  things  therein  mentioned,  either  by 
himself  and  his  Heirs,  or  his  or  their  Deputies  or  Lieutenants,  as  by  the 
said  Letters  patent,  relation  being  thereunto  had,  may  more  fully  appear  : 
A7id  Whereas,  the  late  King  James  the  second,  before  he  came  to  the 
Crown,  by  the  name  of  James  Duke  of  York  and  Albany,  being  rightfully 
possessed  of  a  Certain  Tract  of  Land  lying  on  the  West  side  of  the  Bay 
and  River  of  Delaware,  more  commonly  called  a-nd  known  by  the  name 
or  Names  of  the  Counties  of  Newcastle,  Kent,  and  Sussex,  on  Delaware  ; 
and  being  likewise  invested  with  Sundry  Royalty's  priviledges,  Immunities, 
powers,  Jurisdictions,  and  authorities,  for  the  defence,  safety,  preservation, 
and  well-Governing  of  the  said  Tract  of  Land  and  the  Inhabitants  thereof, 
did,  by  certain  Deeds  duly  executed,  and  bearing  date  as  therein  men- 
tioned, give  and  grant  unto  the  said  William  Penn,  his  Heirs  and  Assigns, 
the  said  Tract  of  Land  lying  on  the  West  side  of  the  Bay  and  River  of 
Delaware,  with  all  and  every  the  said  Royalties,  Privileges,  Immunities, 
Powers,  Jurisdictions,  and  Authorities  which  he  the  said  Duke  of  York 
stood  then  invested  with  as  aforesaid,  as  by  such  Deeds  relation  being 
thereunto  had,  may  more  fully  appear :    And  Whereas,  we  did  by  our 
Commissions,  under  our  Seals,  bearing  date  the  seventh  day  of  INIay,  in 
the  year  of  our  Lord,  one  thousand  seven  hundred  and  fifty-six,  depute, 
constitute,  and  appoint  William  Denny,  Esquire,  to  be  Lieutenant  Gov- 
ernor of  the  Said  province  and  Counties,  for  and  during  the  good  pleasure 


262  APPENDIX  A. 

of  Us  and  the  Survivor  of  us,  and  until  further  Order  :  Now  Know  Von, 
that  We  have  revoked  and  determined  and  by  these  presents  Do  revoke 
and  determine  our  said  recited  Commission,  and  every  Clause,  article, 
and  Thing  therein  contained  :  And  further  Know  You,  That  we,  reposing 
Special  Trust  and  confidence  in  your  Tryed  and  approved  Loyalty  to  the 
King,  and  in  your  prudence,  conduct  and  Integrity,  Do,  by  Virtue  of  the 
said  Letters  patent  and  Deeds,  depute,  constitute,  nominate,  and  appoint 
you,  the  said  James  Hamilton,  to  be  Lieutenant  Governor  of  the  said 
province  and  Counties,  Giving  and  hereby  granting  unto  you  full  power 
and  authority  to  exercise,  execute,  and  put  in  practice,  in  ample  manner, 
All  and  every  the  powers,  Jurisdictions  and  Authorities,  so  granted  unto 
the  said  William  Penn,  his  Heirs  and  Assigns,  by  the  said  Letters  patent 
and  Deeds,  as  shall  be  necessary  and  convenient  for  the  safety,  well-being, 
defence,  preservation,  and  well-Governing  the  said  province  and  Counties 
and  the  people  thereof,  hereby  comitted  and  entrusted  to  your  care  and 
charge  ;  And  generally,  at  all  Times,  and  upon  all  Occasions,  when  proper 
and  convenient,  to  exercise,  do,  execute,  act  and  perform  all,  and  all 
manner  of  powers,  authorities,  acts,  military,  and  all  other  matters  and 
things  whatsoever,  requisite  and  necessary  for  the  good  order  of  Govern- 
ment, for  the  administering,  maintaining,  and  executing  of  Justice,  and 
for  the  safety,  peace,  defence,  and  preservation  of  the  said  province  and 
Counties,  and  the  people  under  your  Government  and  Direction,  as  fully 
and  amply,  to  all  Intents,  Constructions,  and  purposes,  as  We  ourselves 
might  or  cou[l]d  do  by  Virtue  of  the  said  Letters  Patent  and  Deeds  or 
any  otherwise  howsoever,  were  we  personally  present ;  You  following  and 
observing  such  Orders,  Instructions,  and  Directions  as  you  now  have,  or 
hereafter,  from  time  to  time,  shall  receive  from  us  or  our  Heirs,  To  have, 
hold,  execute,  exercise,  and  enjoy  the  said  Office  or  post  of  Lieutenant 
Governor  of  the  said  Province,  Jurisdictions  and  authorities    herein- 
before  Granted,  and   all  Titles,  privileges,  pre-eminences,  profits,  and 
advantages  to  a  Lieutenant  Governor  and  Commander  [in]  Chief  of  the 
said  province  and  Counties  belonging  and  therewith  usually  held  and 
enjoyed,  unto  you,  the  said  JAMES  HAMILTON,  for  and  during  the 
good  pleasure  of  Us  and  the  Survivor  of  Us,  and  until  further  Order : 
Provided  Always,  that  nothing  herein   contained  shall   extend  or  be 
construed  to  extend  to  give  you  any  power  or  Authority  to  sett,  lett, 
lease  out.  Grant,  Demise,  receive,  posess,  Occupy,  or  dispose  of  any 
Manors,    Messages,   Lands,   Tenements,    Houses,    Gardens,    Royalties, 
Rent,  Issues,  or  profits  arising,  belonging,  or  accruing  unto  us  or  either 
of  Us,  in  the  province  and  Counties  aforesaid,  or  otherwise;   Nor  to 


COMMISSION  TO  HAMILTON.  263 

intermeddle  or  concern  yourself  therewith,  or  with  any  part  of  the  prop- 
erty thereof,  or  with  any  Officer  or  Officers  appointed  for  the  manage- 
ment thereof,  e[i]ther  by  placing,  displacing,  interrupting,  or  hindering 
any  of  them  in  the  just  Execution  of  their  Offices ;  But  in  Case  your 
aid  and  assistance  shall  be  wanted  by  them,  and  desired  for  our  Service, 
Then,  and  in  such  Case,  You  are  hereby  required  to  assist  them  by  all 
lawful  ways  and  means  to  the  utmost  of  your  power,  any  thing  herein- 
before contained  to  the  contrary  thereof  in  anywise,  notwithstanding. 
And  we  do  hereby  strictly  Command,  charge,  and  require  all  persons 
within  the  said  province  and  Counties,  of  what  degree,  quality,  state  or 
Condition  soever,  To  yield,  give,  and  pay  unto  you,  all  Respect,  sub- 
mission, and  Obedience  as  Lieutenant  Governor  of  the  said  province 
and  Counties  so  appointed  as  aforesaid,  as  they  will  answer  the  contrary 
at  their  peril.  Given  under  our  Hands  and  Seals  at  Arms,  the  Nine- 
teenth day  of  July,  in  the  Thirty-Third  year  of  the  Reign  of  Our  Sov- 
ereign Lord  George  the  Second,  by  the  Grace  of  God,  of  Great  Britain, 
France,  and  Ireland,  King,  Defender  of  the  Faith,  and  so  forth,  and  in 
the  Year  of  our  Lord,  One  thousand  seven  hundred  and  fifty-nine. 

THOS.   PENN,    [l.  s.] 
RICH°-    PENN,    [l.  s.] 


264  APPENDIX  A. 

7.    COMMISSION  TO  JOHN  WENTWORTH  AS  LIEUTENANT- 
GOVERNOR   OF   NEW   HAMPSHIRE,   1717. 

[From  a  copy  in  the  Secretary's   Office ;   printed  in  New  Hampshire  Prmincial 

Papers,  ii.  712.] 

GEORGE   R. 

George,  by  the  Grace  of  God,  King  of  Great  Britain,  France  and 
Ireland,  Defender  of  the  Faith,  &c. 

To  our  Trusty  and  Well-beloved  John  Wentworth,  Esq.  Greeting : 
Whereas,  by  our  Commission,  under  our  Great  Seal  of  Great  Britain, 
bearing  date  Fifteenth  day  of  June,  1716,  We  have  constituted  and 
appointed  Samuel  Shute,  Esq.  our  Captain  General  and  Governor  in 
Chief  in  and  over  our  Province  of  New  Hampshire,  in  New  England, 
in  America ;  and  we  reposing  especial  Trust  and  Confidence  in  your 
Loyalty,  Courage  and  Circumspection,  do,  by  these  presents,  constitute 
and  appoint  you,  the  said  John  Wentworth,  to  be  our  Lieutenant  Gov- 
ernor, to  hold,  exercise  and  enjoy  the  said  Place  and  office  for  and 
during  our  Pleasure,  with  all  Rights,  Privileges,  Profits,  Perquisites  and 
Advantages,  to  the  same  belonging  or  appertaining  :  And  further,  in  case 
of  the  Death  or  absence  of  the  said  Samuel  Shute,  We  do  hereby  author- 
ize and  empower  you  to  execute  and  perform  all  and  singular  the  Powers 
and  Directions  contained  in  our  said  Commission  to  the  said  Samuel 
Shute,  and  such  Instructions  as  are  already  or  hereafter  shall,  from  time 
to  time,  be  sent  unto  him  ;  so  nevertheless,  that  you  observe  and  follow 
such  orders  and  Directions  as  you  shall  receive  from  Us,  and  from  the 
said  Samuel  Shute,  or  any  Chief  Governor  of  our  said  Province  of  New 
Hampshire,  for  the  time  being.  And  all  and  singular  our  officers  and 
ministers  and  loving  subjects  of  our  said  Province,  and  others  whom  it 
may  concern,  are  hereby  commanded  to  take  due  Notice  hereof,  and  to 
give  their  ready  obedience  accordingly. 

Given  at  our  Court  at  Hampton  Court,  the  12"'  day  of  September, 
1 71 7,  in  the  Fourth  year  of  our  Reign. 

By  his  Majesty's  Command, 

J.  Addison. 
John  Wentworth,  Esq. 

Lieutenant  Governor  of  New  Hampshire 
in  America. 


APPENDIX  B. 

LIST   OF   COMMISSIONS   AND   INSTRUCTIONS* 

This  list  includes  only  documents  which  are  printed  in  full,  excluding  summa- 
ries and  extracts.  The  term  "  instructions  "  also  requires  explanation.  As  used 
here,  it  means  the  formal  document  which,  together  with  the  commission,  was 
given  to  each  governor  on  his  appointment  to  his  province.  Single  articles  or 
so-called  additional  instructions  which  appear  from  time  to  time  in  the  records  of 
nearly  every  province  are  not  recorded  here.  Letters  from  the  home  government, 
or  from  proprietors,  are  excluded  even  though  they  may  contain  more  or  less 
formal  instructions  on  many  matters  connected  with  the  government  of  the  prov- 
ince. It  should  be  said  further  that  all  the  British  colonies  are  not  included  in  this 
list,  but  only  those  which  afterwards  became  part  of  the  United  States. 

For  form  of  royal  commission,  see  Stokes,  Constitution  of  the  Colonies, 
150.     [No  names;   arbitrary  dates.] 

1610.  Proprietary  commission  to  Lord  La  Warr,  governor  of  Virginia  : 
Brown,  Genesis  of  the  United  States,  i.  375. 

1 618.  Proprietary  instructions  to  George  Yeardley,  governor  of  Virginia : 
Virginia  Magazine  of  History  and  Biography,  ii.  154. 

1624.  Royal  commission  to  Sir  Francis  Wyatt,  governor,  and  to  the 
council  of  Virginia:    Rymer,  Foedera,  xvii.  618. 

1626.  Royal  commission  to  Sir  George  Yeardley,  governor,  and  to  the 
council  of  Virginia:    Rymer,  Foedera,  xviii.  311. 

1626.  Royal  instructions  to  Sir  George  Yeardley,  governor,  and  to  the 
council  of  Virginia:  Virginia  Magazine  of  History  and  Biography,  ii.  393. 

1627.  Royal  commission  to  John  Harvey,  governor,  and  to  the  council 
of  Virginia  :  Rymer,  Foedera,  xviii.  980. 

1635.  Proprietary  commission  to  John  Winthrop,  the  younger,  governor 
of  the  Connecticut  River :  Trumbull,  History  of  Connectictit,  i.  497. 

1636.  Royal  commission  to  John  Harvey,  governor,  and  to  the  council 
of  Virginia:    Rymer,  Fcedera,  xx.  3. 

1637.  Proprietary  commission  to  Leonard  Calvert,  governor,  and  to  the 
council  of  Maryland:  Bozman,  History  of  Maryland,  ii.  572;  Maryland 
Af chives,  iii.  49. 

1641.  Royal  commission  to  Sir  William  Berkeley,  governor,  and  to  the 
council  of  Virginia:  Rymer,  Fadera,  xx.  484. 

*  This  list  is  reprinted  with  some  revision  from  the  American  Historical  Review 
for  October,  1897. 


266  APPENDIX  B. 

[1641.]  Royal  instructions  to  Sir  William  Berkeley,  governor  of  Virginia : 
Virginia  Magazine  of  History  atid  Biography,  ii.  281. 

1642.  Proprietary  commission  to  Leonard  Calvert,  governor  of  Mary- 
land: Bozman,  History  of  Maryland,  ii.  621  ;  Maryland  Archives,  iii.  108. 

1644.  Proprietary  commission  to  Leonard  Calvert,  governor  of  Mary- 
land: Bozman,  Histoty  of  Maryland,  ii.  631 ;  Maryland  Archives,  iii.  151. 

1648.  Proprietary  commission  to  William  Stone,  governor  of  Maryland: 
Bozman,  History  of  Maryland,  ii.  642  ;  Mary laftd  Archives,  iii.  201. 

1656.  Proprietary  commission  to  Josias  Fendall,  governor  of  Maryland  : 
Bozman,  Histoty  of  Maryland,  ii.  6S9;  Maryland  Archives,  iii.  323. 

1660.  Proprietary  commission  to  Philip  Calvert,  governor  of  Maryland  : 
Marylatid  Archives,  iii.  391. 

1 661.  Proprietary  commission  to  Charles  Calvert,  governor  of  Mary- 
land: Marylattd  Archives,  iii.  439. 

1662.  Royal  instructions  to  Sir  William  Berkeley,  governor  of  Virginia  : 
Virginia  Magazine  of  History  and  Biography,  iii.  15. 

1664.  Proprietary  commission  to  Richard  NicoUs,  governor  of  New 
York:   Pe?insylvania  Archives,  2nd  Series,  v.  509. 

1665.  Proprietary  commission  to  Sir  John  Yeamans,  governor  of 
Clarendon   County:    North  Carolina    Records,   i.    97. 

[1665.]  Proprietary  instructions  to  Sir  John  Yeamans,  governor,  and  to 
the  council  of  Clarendon  County :  North  Carolina  Records,  i.  95 ;  Rivers, 
Sketch  of  the  History  of  South  Carolina,  338. 

1665.  Proprietary  commission  to  Philip  Carteret,  governor  of  New 
Jersey:  New fersey  Documents,  i.  20. 

1665.  Proprietary  instructions  to  Philip  Carteret,  governor  of  New 
Jersey:    A^ew  fersey  Documents,  i.  21. 

1666.  Proprietary  commission  to  Charles  Calvert,  governor  of  Mary- 
land:   Maryland  Archives,  iii.   542. 

1667.  Proprietary  commission  to  Samuell  Stephens,  governor  of  Albe- 
marle County:    North  Carolina  Records,  i.   162. 

1667.  Proprietary  instructions  to  Samuell  Stephens,  governor  of  Albe- 
marle County  :   North  Carolina  Records,  i.   162. 

1669.  Proprietary  commission  to  William  Sayle,  governor  of  Carolina 
south  and  west  of  Cape  Carteret :  Rivers,  Sketch  of  the  History  of  South 
Carolina,  340. 

1669.  Proprietary  instructions  to  the  governor  and  council  at  Port 
Royal,  Carolina:  Rivers,  Sketch  of  the  History  of  South  Carolina,  347. 

1670.  Proprietary  instructions  to  the  governor  and  council  of  Albe- 
marle County:   N'orth  Carolina  Records,  i.  181. 

1 67 1.  Proprietary  instructions  to  the  governor  and  council  of  Ashley 
River:  Rivers,  Sketch  of  the  History  of  South  Carolina,  366. 

1674.  Proprietary  instructions  to  Andrew  Percivall,  governor  of  a  new 
plantation  on  the  Edisto  River :  Rivers,  Sketch  of  the  History  of  South 
Caroli)ia,  387. 


LIST  OF  COMMISSIONS  AND  INSTRUCTIONS.       267 

1674.  Proprietary  commission  to  Philip  Carteret,  governor,  and  to  the 
council  of  New  Jersey  :  Learning  and  Spicer,  Grants,  Concessions,  etc.,  58. 

1674.  Proprietary  instructions  to  Philip  Carteret,  governor,  and  to  the 
council  of  New  Jersey  :  N'ew  Jersey  Documents,  i.  167. 

1674.  Proprietary  commission  to  Edmund  Andros,  governor  of  New 
York  :  New  York  Documents,  iii.  215  ;  N'ew  Jersey  Documents,  i.  156. 

1674.  Proprietary  instructions  to  Edmund  Andros,  governor  of  New 
York:    A'ew  York  Documents,  iii.  216. 

1675.  Royal  commission  to  Thomas,  Lord  Culpeper,  governor  of  Vir- 
ginia:   Hening,  Staitites,  ii.  565. 

1676.  Proprietary  commission  to  Thomas  Eastchurch,  governor  of 
Albemarle  County:   North  Carolina  Records,  i.  232. 

[1676.]  Proprietary  instructions  to  the  governor  and  council  of  Albe- 
marle County:   North  Carolina  Records,  i.  230. 

1679.  Proprietary  instructions  to  John  Harvey,  president,  and  to  the 
council  of  Albemarle  County:   North  Carolina  Records,  i.  235. 

1679.  Eoyal  commission  to  John  Cutt  [or  Cutts],  president,  and  to  the 
council  of  New  Hampshire:  New  Hampshire  Provincial  Papers,  i.  373; 
also  prefixed  to  Acts  and  Laws  of  N'ezv  Hampshire  (1771). 

[16S1.]  Proprietary  instructions  to  Henry  Wilkinson,  governor,  and  to 
the  council  of  Albemarle  County  :  North  Carolina  Records,  i.  333. 

1681.  Proprietary  commission  to  William  Markham,  governor  of  Penn- 
sylvania:   Charter  and  Laws  of  Pennsylvania,  470. 

1682.  Royal  commission  to  Edward  Cranfield,  governor  of  New  Hamp- 
shire :  New  Hampshire  Provincial  Papers,  i.  433. 

[1682.]  Royal  instructions  to  Edward  Cranfield,  governor  of  New  Hamp- 
shire :  A^ew  Hampshire  Provincial  Papers,  i.  443. 

1652.  Proprietary  commission  to  Thomas  Dongan,  governor  of  New 
York:   New  York  Documents,  iii.  328. 

1683.  Proprietary  commission  to  Robert  Barclay,  governor  of  East 
New  Jersey  :    Smith,  History  of  N'ew  Jersey,   166. 

1653.  Proprietary  commission  to  Gawen  Lawrie,  deputy-governor  of 
East  New  Jersey:   N'ew  Jersey   Docutnents,   i,   423. 

1683.  Proprietary  instructions  to  Gawen  Lawrie,  deputy-governor  of 
East  New  Jersey:   N'ew  Jersey  Documents,  i.  426. 

16S3.  Proprietary  instructions  to  Thomas  Dongan,  governor  of  New 
York  :   New  York  Documents,  iii  .331. 

[1684.]  Royal  commission  to  Thomas,  Lord  Culpeper,  governor  of  Vir- 
ginia :    Calendar  of  Virginia  State  Papers,  i.   14. 

16S6.  Royal  commission  to  Thomas  Dongan,  governor  of  New  York: 
New  York  Documents,  iii.  377. 

1686.  Royal  instructions  to  Thomas  Dongan,  governor  of  New  York: 
New  York  Documetits,  iii.  369. 

1686.  Royal  commission  to  Sir  Edmund  Andros,  governor  of  New 
England:   Force,  Tracts,  iv.  No.  8. 


268  APPENDIX  B. 

1688.  Royal  commission  to  Sir  Edmund  Andros,  governor  of  New 
England :   New  York  Dociunents^  iii.  537. 

1688.  Royal  instructions  to  Sir  Edmund  Andros,  governor  of  New 
England :  New  York  Doatments,  iii.  543. 

1689.  Proprietary  commission  to  Philip  Ludwell,  governor  of  Carolina 
north  and  east  of  Cape  Fear :   North  Carolina  Records,  i.  360. 

1689.  Proprietary  instructions  to  Philip  Ludwell,  governor  of  Carolina 
north  and  east  of  Cape  Fear :   North  Carolina  Records,  i.  362. 

1689.  Proprietary  instructions  to  John  Blackwell,  governor  of  Penn- 
sylvania:   Pennsylvafiia  Records,  i.  318. 

1690.  Proprietary  commission  to  Lionel  Copley,  governor  of  Marj'land: 
Maryland  Archives,  viii.  200.     [Draft.] 

[1690.]  Royal  commission  to  Henry  Sloughter,  governor  of  New  York  : 
New  York  Docimients,  iii.  623.     [Draft.] 

1690.  Royal  instructions  to  Henry  Sloughter,  governor  of  New  York : 
New  York  Docnments,  iii.  685. 

1691.  Proprietary  commission  to  Philip  Ludwell,  governor  of  Carolina: 
North  Carolina  Records,  i.  373. 

1691.  Proprietary  instructions  to  Philip  Ludwell,  governor  of  Carolina: 
North  Carolina  Records,  i.  373  ;  Rivers,  Chapter  in  the  History  of  South 
Carolina,  59. 

1691.  Royal  commission  to  Lionel  Copley,  governor  of  Maryland : 
Maryland  Archives,  viii.  263. 

1691.  Royal  instructions  to  Lionel  Copley,  governor  of  Maryland: 
Maryland  Archives,  viii.  271. 

1692.  Royal  commission  to  Samuel  Allen,  governor  of  New  Hampshire : 
New  Hampshire  Provincial  Papers,  ii.  57. 

1692.  Royal  instructions  to  Samuel  Allen,  governor  of  New  Hampshire  : 
New  Hampshire  Provincial  Papers,  ii.  63. 

1692.  Proprietary  commission  to  Andrew  Hamilton,  governor  of  West 
New  Jersey:    New  Jersey  Documents,  ii.  '?>']. 

1692.  Royal  commission  to  Benjamin  Fletcher,  governor  of  New  York : 
New  York  Documents,  iii.  827;  Pefinsylvania  Records,  i.  357. 

1692.  Royal  instructions  to  Benjamin  Fletcher,  governor  of  New  York  : 
New  York  Doctiments,  iii.  818. 

1692.  Royal  commission  to  Benjamin  Fletcher,  governor  of  Penn- 
sylvania: Pennsylvania  Records,  i.  352;  also  drafts  in  A"ew  York  Docu- 
ments, iii.  856,  and  Charter  and  Laws  of  Pennsylvania,  539. 

1692.  Royal  instructions  to  Benjamin  Fletcher,  governor  of  Penn- 
sylvania :   N^ew  York  Documents,  iii.  86r. 

1694.  Proprietary  commission  to  John  Archdale,  governor  of  Carolina: 
North  Carolina  Records,  i.  389. 

1694.  Proprietary  commission  to  Wilham  Markham,  governor  of  Penn- 
sylvania :  Pennsylvania  Records,  i.  474;  Charter  and  Laws  of  Penn- 
sylvania,  558. 


LIST  OF  COMMISSIONS  AND  INSTRUCTIONS.        269 

1697.  Proprietary  commission  to  Jeremiah  Basse,  governor  of  West 
New  Jersey  :   N^ew  Jersey  Documents,  ii.  143.     [Draft.] 

1697.  Royal  commission  to  Richard,  Earl  of  Bellomont,  governor  of 
New  Hampshire:   New  Hampshire  Provincial  Papers,  ii.  305. 

1697.  Royal  commission  to  Richard,  Earl  of  Bellomont,  governor  of 
New  York :   N'ew  York  Docjiments,  iv.  266. 

1697.  Royal  instructions  to  Richard,  Earl  of  Bellomont,  governor  of 
New  York  :   New  York  Docuniejits,  iv.  284. 

[1698?]  Royal  instructions  to  Francis  Nicholson,  governor  of  Virginia: 
Virginia  Magazine  of  History  and  Biography,  iv.  49. 

1698.  Proprietary  instructions  to  Jeremiah  Basse,  governor  of  East 
New  Jersey :   New  Jersey  Documents,  ii.  209. 

1699.  Proprietary  commission  to  Andrew  Hamilton,  governor  of  West 
New  Jersey:   A^ew  Jersey  Documents,  ii.  301. 

1702.  Royal  instructions  to  Joseph  Dudley,  governor  of  Massachusetts: 
Massachusetts  Historical  Society,  Collections,  3rd  Series,  ix.  loi. 

1702.  Royal  commission  to  Joseph  Dudley,  governor  of  New  Hamp- 
shire :   N'ew  Hampshire  Provincial  Papers,  ii.  366. 

1702.  Royal  commission  to  Edward,  Lord  Cornbury,  governor  of  New 
Jersey :  Leaming  and  Spicer,  Grants,  Concessions,  etc.,  64.7;  N'ew  Jersey 
Documents,  ii.  489;  Smx'Ca,  History  of  New  Jersey,  zzo;  Field,  Provincial 
Courts  of  A'ew  Jersey,  Appendix  B. 

1702.  Royal  instructions  to  Edward,  Lord  Cornbury,  governor  of  New 
Jersey  :  Leaming  and  Spicer,  Grants,  Concessions,  etc.,  619 ;  New  Jersey 
Documents,  ii.  506  ;  Smith,  History  of  New  Jersey,  230  ;  Field,  Provificial 
Courts  of  New  Jersey,  Appendix  B. 

1702.  Proprietary  commission  to  Sir  Nathaniell  Johnson,  governor  of 
South  and  North  Carolina :   North  Carolina  Records,  i.  554. 

1702.  Proprietary  instructions  to  Sir  Nathaniell  Johnson,  governor  of 
South  and  North  Carolina :   North  Carolina  Records,  i.  555. 

1708.  Proprietary  commission  to  Edward  Tynte,  governor  of  North  and 
South  Carolina :  Aloi'th  Carolina  Records,  i.  694. 

1709.  Royal  commission  to  Robert  Hunter,  governor  of  New  York: 
New  York  Documents,  v.  92.     [Draft.] 

1709.  Royal  instructions  to  Robert  Hunter,  governor  of  New  York: 
New  York  Documejits,  v.  124.     [Draft.] 

1712.  Proprietary  instructions  to  Edward  Hyde,  governor  of  North 
Carolina:   North  Caroli}ia  Records,  i.  844. 

171 5.  Royal  commission  to  Robert  Hunter,  governor  of  New  York: 
N'ew  York  Documents,  v.  391.     [Draft.] 

171 7.  Royal  commission  to  John  Wentworth,  lieutenant-governor  of 
New  Hampshire:   New  Hainpshij-e  Proviiicial  Papers,  ii.  712. 

1 7 19.  Proprietary  instructions  to  William  Keith,  governor  of  Penn- 
sylvania:   Pe7msylvania  Records,  iii.  63. 

1720.  Royal  instructions  to  Francis  Nicholson,  governor  of  South 
Carolina :    Rivers,  Chapter  ifi  the  History  of  South  Cai'olina,  68. 


270  APPENDIX  B. 

I'jz'j.  Royal  commission  to  John  Montgomery,  governor  of  New  York : 
New  York  Documents^  v.  834.     [Draft.] 

1730.  Royal  commission  to  George  Burrington,  governor  of  North 
Carolina:   North  Carolina  Records,  iii.  66.     [Draft.] 

1730.  Royal  instructions  to  George  Burrington,  governor  of  North 
Carolina:   North  Carolina  Records,  iii.  90.     [Draft.} 

1738.  Royal  commission  to  Lewis  Morris,  governor  of  New  Jersey: 
New  Jersey  Documents,  vi.  2.     [Draft.] 

1738.  Royal  instructions  to  Lewis  Morris,  governor  of  New  Jersey: 
New  Jersey  Docume7its,v'\.  15.     [Draft.] 

1 741.  Royal  commission  to  George  Clinton,  governor  of  New  York: 
New  York  Docutnents,  vi.  189.     [Draft.] 

1753.  Royal  commission  to  Sir  Danvers  Osborn,  governor  of  New  York: 
Smith,  History  of  New  York,  297. 

1754.  Royal  instructions  to  Arthur  Dobbs,  governor  of  North  Carolina: 
North  Carolina  Records,  v.  1107.     [Draft.] 

1758.  Royal  commission  to  Francis  Bernard,  governor  of  New  Jersey  : 
New  Jersey  Docu?nents,  ix.  23.     [Draft] 

1758.  Royal  instructions  to  Francis  Bernard,  governor  of  New  Jersey : 
New  Jersey  Documents,  ix.  40.     [Draft.] 

1759.  Proprietary  commission  to  James  Hamilton,  governor  of  Penn- 
sylvania :    Pennsylvattia  Records,  viii.  409. 

1760.  Royal  commission  to  Benning  Wentworth,  governor  of  New 
Hampshire:   New  Hatnpshire  Provincial  Papers,  vi.  908. 

1 761.  Royal  commission  to  Arthur  Dobbs,  governor  of  North  Carolina: 
North  Carolina  Records,  vi.  524.     [Draft.] 

1766.  Royal  commission  to  John  Wentworth,  governor  of  New  Hamp- 
shire :  prefixed  to  Acts  and  Laws  of  New  Hampshire  (1771). 

1771.  Royal  instructions  to  John,  Earl  of  Dunmore,  governor  of  Vir- 
ginia :  Aspinwall  Papers  (Massachusetts  Historical  Society,  Collections, 
4th  Series,  x.),  630. 


APPENDIX   C. 

LIST  OF   AUTHORITIES    CITED. 

[Almon,  John.]  A  Collection  of  Interesting,  Authentic  Papers,  relative 
to  the  Dispute  between  Great  Britain  and  America;  shewing  the  Causes 
and  Progress  of  that  Misunderstanding,  from  1764  to  1775.     London,  1777. 

AspiNWALL  Papers  [1617-1817].  2  vols.  (Massachusetts  Historical 
Society,  Collections^  4th  Series,  ix.-x.).     Boston,  1871. 

Banxroft,  George.  History  of  the  United  States.  The  Author's  Last 
Revision.     New  York,  1 883-1 885. 

Belknap,  Jeremy.  The  History  of  New  Hampshire.  3  vols.  Phila- 
delphia and  Boston,  1 784-1 792. 

[Beverley,  Robert.]  The  History  of  Virginia,  in  Four  Parts.  By  a 
Native  and  Inhabitant  of  the  Place.  2nd  edition.  London,  1722.  [ist 
edition,  1705.] 

Blackstone,  William.  Commentaries  on  the  Laws  of  England.  4 
vols.     Oxford,  1 768-1 769. 

Bozman,  John  Leeds.  The  History  of  Maryland,  from  its  first  Settle- 
ment, in  1633,  to  the  Restoration,  in  1660,  with  a  copious  Introduction,  and 
Notes  and  Illustrations.     2  vols.     Baltimore,  1837. 

Brodhead,  John  Romeyn.  History  of  the  State  of  New  York.  2 
vols.     New  York,  1853,  1871. 

Brown,  Alexander.  The  Genesis  of  the  United  States.  A  narrative 
of  the  movement  in  England,  1605-1616,  which  resulted  in  the  plantation  of 
North  America  by  Englishmen,  disclosing  the  contest  between  England  and 
Spain  for  the  possession  of  the  soil  now  occupied  by  the  United  States  of 
America;  set  forth  through  a  Series  of  Historical  Manuscripts  now  first 
printed  together  with  a  reissue  of  rare  contemporaneous  tracts,  accompanied 
by  bibliographical  memoranda,  notes,  and  brief  biographies.  2  vols.  Bos- 
ton and  New  York,  1891. 

BuRNABY,  Andrew.  Travels  through  the  Middle  Settlements  of  North- 
America.  In  the  years  1759  and  1760.  With  Observations  upon  the  State 
of  the  Colonies.     London,  1775. 

Calvert  Papers.  No.  i  [1624-1682]  (Maryland  Historical  Society, 
Fu7id  Ptiblicatio7is,  No.  28).     Baltimore,  1889. 

Campbell,  Charles.  History  of  the  Colony  and  Ancient  Dominion  of 
Virginia.     Philadelphia,  i860. 


2/2  APPENDIX  B. 

Carolina.  The  Case  of  Protestant  Dissenters  in  Carolina,  shewing 
How  a  Law  to  prevent  Occasional  Conformity  There,  has  ended  in  the 
Total  Subversion  of  the  Constitution  in  Church  and  State.     London,  1706. 

Carolina.  Party-Tyranny :  or,  An  Occasional  Bill  in  Miniature ;  as 
now  Practised  in  Carolina.     London,  1705. 

Carolina.  The  Two  Charters  granted  by  King  Charles  lid.  to  the 
Proprietors  of  Carolina.  With  the  First  and  Last  Fundamental  Constitu- 
tions of  that  Colony.     London,  [1705  ?]. 

Carroll,  B.  R.  Historical  Collections  of  South  Carolina.  2  vols. 
New  York,    1836. 

Chalmers,  George.  An  Introduction  to  the  History  of  the  Revolt  of 
the  American  Colonies.     2  vols.     Boston,  1845. 

Chalmers,  George.  Opinions  of  Eminent  Lawyers  on  various  points 
of  English  Jurisprudence,  chiefly  concerning  the  Colonies,  Fisheries  and 
Commerce  of  Great  Britain.     Burlington,  1858. 

Chalmers,  George.  Political  Annals  of  the  Present  United  Colonies, 
from  their  Settlement  to  the  Peace  of  1 763  :  compiled  chiefly  from  Records, 
and  authorized  often  by  the  insertion  of  State-Papers.  Book  i.  London, 
1780. 

Delaware.  Laws  of  the  State  of  Delaware,  [Oct.  14,  1700  — Aug.  18, 
1797].     2  vols.     Newcastle,  1797. 

DiNWiDDiE,  Robert.  Official  Records  .  .  .  1751-1758.  Edited  by 
R.  A.  Brock.  2  vols.  (Virginia  Historical  Society,  Collections,  New  Series, 
iii.-iv.).     Richmond,  1883-1884. 

Douglass,  William.  A  Summary,  Historical  and  Political  of  the  first 
Planting,  progressive  Improvements,  and  present  State  of  the  British  Settle- 
ments in  North  America.     2  vols.     Boston,  1749,  1751. 

Doyle,  J.  A.     The  English  in  America.     3  vols.     London,  1882-1887. 

DuMMER,  Jeremiah.  A  Defence  of  the  New-England  Charters.  Bos- 
ton, 1765.     [ist  edition,  1721.    See  Winsor,  Narrative  and  Critical  History, 

v.  121.] 

Egerton,  Hugh  Edward.    A  Short  History  of  British  Colonial  Policy. 

London,  1897. 

Field,  Richard  S.  The  Provincial  Courts  of  New  Jersey,  with 
Sketches  of  the  Bench  and  Bar.  (New  Jersey  Historical  Society,  Collec- 
tions,  iii.)     New  York,  1849. 

Force,  Peter,  editor.  Tracts  and  other  Papers,  relating  principally  to 
the  Origin,  Settlement,  and  Progress  of  the  Colonies  in  North  America, 
from  the  Discovery  of  the  Country  to  the  Year  1776.     4  vols.     Washington, 

1 836- 1 846. 

Franklin,  Benjamin.  Complete  Works.  Edited  by  John  Bigelow. 
10  vols.     New  York  and  London,  1887-18S8. 

Georgia.  Acts  passed  by  the  General  Assembly  of  the  Colony  of 
Georgia.  1755  to  1774.  Edited  by  Charles  Colcock  Jones,  Jr.  Wormsloe, 
1881. 


LIST  OF  AUTHORITIES  CITED.  273 

Great  Britain.  Journals  of  the  House  of  Lords,  beginning  Anno 
Quarto  Annse  Reginae,  1705.     Vol.  xviii. 

Great  Britain.  The  Statutes  at  Large,  from  Magna  Charta,  to  the 
Twenty-fifth  Year  of  the  Reign  of  King  George  the  Third,  inclusive.  .  .  . 
By  Owen  Ruffhead,  Esq.  .  .  .  Revised,  corrected,  and  continued,  by  Charles 
Runnington.  10  vols.  London,  1786.  [Each  volume  has  a  distinct  title- 
page.     Continued  to  the  present  time.] 

Hartwell,  Blair,  and  Chilton.  The  present  State  of  Virginia,  and 
the  College.     London,  1727. 

Hawks,  Francis  L.  History  of  North  Carolina  :  with  Maps  and  Illus- 
trations.    2  vols.     Fayetteville,  1857-1858. 

Hazard,  Ebenezer.  Historical  Collections ;  consisting  of  State  Papers, 
and  other  authentic  documents ;  intended  as  materials  for  an  history  of  the 
United  States  of  America.     2  vols.     Philadelphia,  1 792-1 794. 

Hening,  William  Waller.  The  Statutes  at  Large ;  being  a  Collection 
of  all  the  Laws  of  Virginia,  from  the  first  Session  of  the  Legislature,  in  the 
year  1619.     13  vols.     Richmond,  etc.,  1819-1823. 

History  of  the  British  Dominions  in  North  America :  from  the  first 
Discovery  of  that  vast  Continent  by  Sebastian  Cabot  in  1497,  to  its  present 
glorious  Establishment  as  confirmed  by  the  late  Treaty  of  Peace  in  1763. 
2  vols.     London,  1773. 

Howell,  T.  B.  A  Complete  Collection  of  State  Trials  and  Proceedings 
for  High  Treason  and  other  Crimes  and  Misdemeanors  from  the  earliest 
Period  to  the  Year  1783,  with  Notes  and  other  Illustrations.  21  vols. 
London,  1816.  [Continued  to  1820  in  12  additional  volumes;  also  an  index 
volume.] 

Hutchinson,  Thomas.  The  History  of  Massachusetts,  from  the  first 
Settlement  thereof  in  1628,  until  the  Year  1750.  2  vols.  Boston,  1795.  — 
The  History  of  the  Province  of  Massachusetts  Bay,  from  the  Year  1750, 
until  June,  1774.     Vol.  iii.     London,  1828. 

Jefferson,  Thomas.  Writings.  Edited  by  Paul  Leicester  Ford. 
Vol.  iii.     New  York  and  London,  1894. 

Jones,  Charles  Colcock,  Jr.  The  History  of  Georgia.  2  vols. 
Boston,  1883. 

Jones,  Hugh.     The  Present  State  of  Virginia.     London,  1724. 

Leaming,  Aaron,  and  Spicer,  Jacob.  The  Grants,  Concessions,  and 
Original  Constitutions  of  the  Province  of  New-Jersey.  The  Acts  passed 
during  the  Proprietary  Governments,  and  other  material  Transactions  be- 
fore the  Surrender  thereof  to  Queen  Anne.  The  Instrument  of  Surrender, 
and  Her  formal  Acceptance  thereof.  Lord  Cornbury's  Commission  and 
Instructions  consequent  thereon.     Philadelphia,  [1752  ?]. 

McCrady,  Edward.  The  History  of  South  Carolina  under  the  Pro- 
prietary  Government  1670-1719.     New  York,  1897. 

McMahon,  John  V.  L.  An  Historical  View  of  the  Government  of  Mary- 
land, from  its  Colonization  to  the  Present  Day,     Vol.  i.     Baltimore,  1831. 

18 


274  APPENDIX   C. 

Maryland.  Laws  of  Maryland  at  Large  [1637-1763].  .  .  .  Collected 
into  One  Compleat  Body.  .  .  .  Together  with  Notes  and  other  Matters, 
relative  to  the  Constitution  thereof.  .  .  .  To  which  is  prefixed  The  Charter, 
with  an  English  Translation.     By  Thomas  Bacon.     Annapolis,  1765. 

Maryland.  Votes  and  Proceedings  of  the  Lower  House  of  Assembly 
of  the  Province  of  Maryland  [i  753-1 759].     Annapolis,  1759. 

Maryland  Archives.  Edited  by  William  Hand  Browne.  16  vols. 
Baltimore,  1 883-1897. 

Massachusetts.  The  Acts  and  Resolves,  Public  and  Private,  of  the 
Province  of  the  Massachusetts  Bay:  to  which  are  prefixed  the  Charters  of 
the  Province.  With  historical  and  explanatory  Notes.  8  vols.  Boston, 
1869-1895. 

Massachusetts.  Journal  of  the  Honourable  House  of  Representatives, 
of  His  Majesty's  Province  of  the  Massachusetts-Bay  in  New-England, 
begun  and  held  at  Boston,  on  Wednesday  the  Twenty-Ninth  Day  of  May, 
Anno  Domini,  1723.     Boston,  1723. 

Massachusetts.  Records  of  the  Governor  and  Company  of  the 
Massachusetts  Bay  in  New  England.  Edited  by  Nathaniel  B.  Shurtleff. 
5  vols.     Boston,   1853-1854. 

Massachusetts  Historical  Society.  Collections.  4th  Series,  ii. 
Boston,  1854. 

Morris,  Lewis.  Papers  .  .  .  from  1738  to  1746.  (New  Jersey 
Historical   Society,  Collections,  iv.)     New  York,  1852. 

Neill,  Edward  D.  Virginia  Carolorum  :  the  Colony  under  the  rule  of 
Charles  the  First  and  Second  [1625-1685].     Albany,  1886. 

New  England.  The  Deplorable  State  of  New  England,  by  Reason  of 
a  Covetous  and  Treacherous  Governour,  and  Pusillanimous  Counsellors. 
London,  1708.  [Reprinted  in  Massachusetts  Historical  Society,  Collections, 
5th  Series,  vi.] 

New  Hampshire.  Acts  and  Laws  of  His  Majesty's  Province  of  New- 
Hampshire  in  New-England.  With  sundry  Acts  of  Parliament  [i 696-1 771]. 
By  Order  of  the  General  Assembly.     Portsmouth,  1771. 

New  Hampshire.  Provincial  Papers.  Documents  and  Records  relating 
to  the  Province  of  New-Hampshire  from  the  earliest  period  of  its  Settlement 
[1623-1776].  Edited  by  Nathaniel  Bouton.  7  vols.  Concord,  etc.,  1867- 
1873.     [Continued.] 

New  Jersey.  Acts  of  the  General  Assembly  of  the  Province  of  New- 
Jersey,  from  the  Surrender  of  the  Government  to  Queen  Anne,  on  the 
17^  Day  of  April,  in  the  Year  of  our  Lord  1702,  to  the  14'-^  Day  of  Jan- 
uary 1776.     Compiled  by  Samuel  Allinson.     Burlington,  1776. 

New  Jersey.  An  Analytical  Index  to  the  Colonial  Documents  of  New 
Jersey,  in  the  State  Paper  offices  of  England.  Compiled  by  Henry  Stevens. 
Edited  by  William  A.  Whitehead.  (New  Jersey  Historical  Society,  Collec- 
tions, V.)     New  York,  1858. 

New  Jersey.     Documents  relating  to  the  Colonial  History  of  the  State 


LIST  OF  AUTHORITIES  CITED.  275 

of  New  Jersey.  Edited  by  William  A.  Whitehead,  W.  Nelson,  and  F.  W. 
Ricord.  19  vols,  (also  index  volume).  Newark,  etc.,  18S0-1S97.  [Called 
also  "  New  Jersey  Archives."] 

New  Jersey  Historical  Society.  Proceedings,  ist  Series.  10  vols. 
Newark,  1S47-1867. 

New  York.  Acts  of  Assembly,  passed  in  the  Province  of  New  York, 
from  1691  to  1718.     London,  1719. 

New  York.  Documents  relative  to  the  Colonial  History  of  the  State  of 
New  York;  procured  in  Holland,  England  and  France,  by  John  Romeyn 
Brodhead,  Esq.  Edited  by  E.  B.  O'Callaghan.  14  vols,  (also  index  volume). 
Albany,  1853-1883. 

New  York.  Journal  of  the  Votes  and  Proceedings  of  the  General 
Assembly  of  the  Colony  of  New  York  [1691-1765].  2  vols.  New  York, 
I 764-1 766. 

New  York.  Laws  of  New  York,  from  the  Year  1691,  to  1773  inclusive. 
Vol.  i.     New  York,  1774. 

North  Carolina.  The  Colonial  Records  of  North  Carolina.  Edited 
by  William  L.  Saunders.     10  vols.     Raleigh,  1886-1890. 

North  Carolina.  Laws  of  the  State  of  North  Carolina  [171 5-1 790]. 
Published  according  to  Act  of  Assembly  by  James  Iredell.  Edenton,  1791. 
[With  additions  to  iSoc] 

North  Carolina.  The  Public  Acts  of  the  General  Assembly  of  North 
Carolina.  Vol.  i.  Containing  the  Acts  from  171 5  to  1790;  revised  and 
published  ...  by  the  Honorable  James  Iredell,  Esq.  And  now  revised  by 
Francois-Xavier  Martin.     2  vols.     Newbern,  1804.     [Vol.  ii.,  1790-1803.] 

O'Callaghan,  E.  B.  The  Documentary  History  of  the  State  of  New- 
York  ;  arranged  under  direction  of  the  Hon.  Christopher  Morgan,  Secretary 
of  State.     4  vols.     Albany,  1849-185 1. 

[Oldmixon,  John.]  The  British  Empire  in  America,  containing  the 
History  of  the  Discovery,  Settlement,  Progress  and  State  of  the  British 
Colonies  on  the  Continent  and  Islands  of  America.     2  vols.     London,  1741. 

Pennsylvania.  Charter  to  William  Penn,  and  Laws  of  the  Province 
of  Pennsylvania,  passed  between  the  years  1682  and  1700,  preceded  by 
Duke  of  York's  Laws  in  force  from  the  year  1676  to  the  year  1682,  with  an 
Appendix  containing  Laws  relating  to  the  organization  of  the  Provincial 
Courts  and  Historical  matter.  Edited  by  Staughton  George,  Benjamin  M. 
Nead,  and  Thomas  McCamant.     Harrisburg,  1879. 

Pennsylvania.  An  Historical  Review  of  the  Constitution  and  Govern- 
ment of  Pennsylvania,  from  its  Origin  ....  London,  1759.  [Reprinted  in 
Franklin's  Works,  Sparks  edition,  1809,  Vol.  ii.] 

Pennsylvania.  Minutes  of  the  Provincial  Council  of  Pennsylvania, 
from  the  Organization  to  the  Termination  of  the  Proprietary  Government 
[1683-1776].  Published  by  the  State.  10  vols.  Philadelphia  and  Harris- 
burg, 1851-1852.  [Continued  in  6  additional  volumes  as  "Minutes  of  the 
Supreme  Executive  Council  of  Pennsylvania,  from  its  Organization  to  the 


276  APPENDIX  C. 

Termination  of  the  Revolution  "  (i  776-1 790).  —  Called  also  "  Colonial 
Records."  —  Index  volume.] 

Pennsylvania.  The  Statutes  at  Large  of  Pennsylvania  from  1682  to 
1801.  Compiled  under  the  authority  of  the  Act  of  May  19  1887  by  James 
T.  Mitchell  and  Henry  Flanders.  Vols,  ii.,  iii.,  iv.  [Harrisburg],  1896- 
1897. 

Pennsylvania.  Votes  and  Proceedings  of  the  House  of  Representatives 
of  the  Province  of  Pennsylvania  [1682-1776].  6  vols.  Philadelphia,  1752- 
1776. 

Pennsylvania  Archives  [1664-1790].  Selected  and  arranged  from 
original  documents  in  the  office  of  the  Secretary  of  the  Commonwealth.  .  .  . 
By  Samuel  Hazard.  12  vols.  Philadelphia,  1852-1856.  —  Second  Series. 
Edited  by  John  B.  Linn  and  William  H.  Egle.  19  vols.  Harrisburg,  1874- 
1893. 

Perry,  William  Stevens.  The  History  of  the  American  Episcopal 
Church,  1 587-1883.     2  vols.     Boston,  1885. 

Perry,  William  Stevens.  Papers  relating  to  the  History  of  the 
Church  in  Virginia,  A.  D.  1650-1776.     [Hartford?]  1870. 

PooRE,  Ben:  Perley.  The  Federal  and  State  Constitutions,  Colonial 
Charters,  and  other  Organic  Laws  of  the  United  States.  2  vols.  Washing- 
ton, 1878. 

Pownall,  Thomas.  The  Administration  of  the  Colonies.  London, 
1765. 

Proud,  Robert.  The  History  of  Pennsylvania,  in  North  America, 
from  the  original  Institution  and  Settlement  of  that  Province  under  the  first 
Proprietor  and  Governor  William  Penn,  in  1 681,  till  after  the  year  1742; 
with  an  Introduction.     2  vols.     Philadelphia,  1 797-1 798. 

QuiNCY,  JosiAH,  Jr.  Reports  of  Cases  argued  and  Adjudged  in  the 
Superior  Court  of  Judicature  of  the  Province  of  Massachusetts  Bay,  between 
1761  and  1772.     Boston,  1865. 

Rhode  Island.  Records  of  the  Colony  of  Rhode  Island  and  Providence 
Plantations,  in  New  England  [1636-1792].  Edited  by  John  Russell  Bartlett. 
ID  vols.     Providence,  1856-1865. 

Rivers,  William  James.  A  Chapter  in  the  Early  History  of  South 
Carolina.     Charleston,  1874. 

[Rivers,  William  James.]  A  Sketch  of  the  History  of  South  Carolina 
to  the  Close  of  the  Proprietary  Government  by  the  Revolution  of  1 719. 
Charleston,  1856. 

Rogers,  Robert.  A  Concise  Account  of  North  America.  London, 
1765. 

Rymer,  Thomas.  Foedera,  Conventiones,  Litterse,  et  Cujuscunque 
Generis  Acta  Publica,  inter  Reges  Angliae,  et  Alios  quosvis  Imperatores, 
Reges,  Pontifices,  Principes,  vel  Communitates,  ab  ineunte  Seeculo  Duo- 
decimo, viz.  ab  Anno  iioi  ad  nostra  usque  Tempora,  Habita  aut  Tractata. 
20  vols.     London,  1 727-1 735. 


LIST  OF  AUTHORITIES  CITED.  277 

Sainsbury,  W.  Noel,  editor.  Calendar  of  State  Papers,  Colonial 
Series  [America  and  West  Indies],  1574-1660.  London,  i860.  —  Con- 
tinuation, 1661-1668,  London,  1880;  1669-1674,  London,  1889;  1675-1676, 
London,  1893;   1677-1680,  London,  1896. 

Sewall,  Samuel.  Diary  [1674-1729].  3  vols.  (Massachusetts  His- 
torical Society,  Collections,  5th  Series,  v-vii.).     Boston,  1878-1882. 

Smith.  Samuel.  The  History  of  the  Colony  of  Nova-Caesaria,  or  New- 
Jersey  :  containing,  an  Account  of  its  first  Settlement,  progressive  Improve- 
ments, the  original  and  present  Constitution,  and  other  events,  to  the  Year 
1721.  With  some  particulars  since;  and  a  short  view  of  its  present  state. 
Burlington,  1765. 

Smith,  William.  The  History  of  the  Province  of  New-York,  from  the 
first  Discovery.  To  which  is  annexed  a  Description  of  the  Country,  an 
Account  of  the  Inhabitants,  their  Trade,  Religious,  and  Political  State,  and 
the  Constitution  of  the  Courts  of  Justice  in  that  Colony.     London,  1776. 

South  Carolina.  Statutes  at  Large.  Edited  by  Thomas  Cooper  and 
David  J.  McCord.     10  vols.     Columbia,  1 836-1 841. 

South  Carolina  Historical  Society.  Collections.  3  vols.  Charles- 
ton, 1857-1S59. 

Spotswood,  Alexander.  Official  Letters  .  .  .  17 10-1722.  Edited 
by  R.  A.  Brock.  2  vols.  (Virginia  Historical  Society,  Collections,  New 
Series,  i.-ii.).     Richmond,  1882,  1885. 

Stille,  Charles  J.  The  Life  and  Times  of  John  Dickinson.  Phila- 
delphia, 1 891. 

Stith,  William.  The  History  of  the  First  Discovery  and  Settlement 
of  Virginia.     New  York,  1865. 

Stokes,  Anthony.  A  View  of  the  Constitution  of  the  British  Colonies, 
in  North-America  and  the  West  Indies,  at  the  time  the  Civil  War  broke 
out  on  the  Continent  of  America.     London,  1783. 

TowNSHEND.  The  Manuscripts  of  the  Marquess  Townshend.  (His- 
torical Manuscripts  Commission,  Elevettth  Report,  Appendix,  Part  iv.) 
London,  1887. 

Trott,  Nicholas.  The  Laws  of  the  British  Plantations  in  America, 
relating  to  the  Church  and  the  Clergy,  Religion  and  Learning.  London, 
1721. 

Trumbull,  Benjamin.  A  Complete  History  of  Connecticut,  Civil  and 
Ecclesiastical,  from  the  Emigration  of  its  first  Planters,  from  England,  in 
the  Year  1630  to  the  Year  1764;  and  to  the  close  of  the  Indian  Wars. 
2  vols.     New  Haven,  18 18. 

Virginia.  Calendar  of  Virginia  State  Papers  and  other  Manuscripts, 
1652-1781,  preserved  in  the  Capitol  at  Richmond.  Arranged  and  edited  by 
William  P.  Palmer,  M.  D.     Vol.  i.     Richmond,  1875.     [Continued.] 

Virginia.  Colonial  Records.  [Edited  by  Thomas  H,  Wynne,  and 
W.  S.  Oilman.]     Richmond,  1874. 

Virginia.     Statutes  at  Large.     See  Hening,  W.  W 


278  APPENDIX  C. 

Virginia  Company.  Abstract  of  the  Proceedings  .  .  .  1619-1624,  pre- 
pared from  the  records  in  the  Library  of  Congress  by  Conway  Robinson, 
and  edited  with  an  introduction  and  notes  by  R.  A.  Brock.  2  vols.  (Vir- 
ginia Historical  Society,  Collections^  New  Series,  vii.-viii.).  Richmond, 
I 888-1889. 

Virginia  Historical  Society.  Collections.  New  Series.  11  vols. 
Richmond,  1882-1892. 

Virginia  Historical  Society.  The  Virginia  Magazine  of  History 
and   Biography.     4  vols.     Richmond,  1894-1897. 

WiNSOR,  Justin.  Narrative  and  Critical  History  of  America.  8  vols. 
Boston  and  New  York.     1 886-1 889. 

WiNTHROP  Papers  [i 630-1 659].  (Massachusetts  Historical  Society, 
Collections,  4th  Series,  vi.)     Boston,  1863. 

Wood,  Silas.  A  Sketch  of  the  first  Settlement  of  the  several  Towns 
on  Long-Island  ;  with  their  Political  Condition  to  the  end  of  the  American 
Revolution.     Brooklyn,  1828. 

Wright,  Robert.  A  Memoir  of  General  James  Oglethorpe.  London, 
1867. 


INDEX. 


Accounts,  inspection  of,  121. 
Admiralty  Courts,  governor's  relation  to, 

106. 

Admiralty  officers,  friction  with,  12. 

Agents,  colonial,  influence  of,  48,  50-51, 
86,  165,  202. 

Albemarle,  Lord,  titular  governor  of  Vir- 
ginia, receipts,  63. 

Andros,  Sir  Edmund,  commission  as  gov- 
ernor of  New  England  in  16S6,  16; 
commission  of  1688,  17,  29,  52  ;  as  gov- 
ernor of  New  York  recommends  an 
assembly,  38 ;  governor  of  Virginia,  129. 

Anne,  Queen,  act  fixing  governor's  tenure, 
50  ;  provision  as  to  government  in  gov- 
ernor's absence,  56 ;  confirms  reversal 
of  act  of  attainder  against  Bayard, 
200. 

Appeal,  to  Privy  Council,  6,  140-141 ;  to 
governor  and  council,  140-141. 

Appointments.  See  Crown,  Patronage, 
Provincial  Governor  (powers). 

Archbishop  of  Canterbury,  jurisdiction 
in  the  colonies,  128.  See  also  Church 
of  England. 

Assembly,  first  representative,  36 ;  re- 
stricts governor's  legislative  power,  36 ; 
gradual  establishment,  36-39 ;  denies 
council's  right  to  initiate  legislation,  40 ; 
composition,  41-42  ;  right  of  Maryland 
governor  to  issue  special  writs  to  re- 
presentatives, 41 ;  separation  into  two 
houses,  42  ;  gives  presents  to  governor, 
62;  jealous  of  council,  88,  122;  finan- 
cial control  by,  121,  122,  180  seq.;  gov- 
ernor's relations  to,  145-195;  governor's 
power  over,  145-165 ;  right  of  sum- 
mons, 145-149;  speaker,  149-151  ;  ad- 
journment, prorogation,  dissolution, 
151-157;    exclusion    of     office-holders 


from,  158-159;  power  over  the  governor, 
166-176  ;  use  of  salary  grants  to  extort 
legislation,  173-176;  encroachments  on 
the  governor,  177-195;  appoints  finan- 
cial officers,  1S2-188  ;  assumes  control 
of  military  affairs,  188-192  ;  interferes 
with  external  relations,  192-193;  policy 
of,  194-195.  See  also  Council,  Provin- 
cial Governor  (powers),  and  colonies 
by  name. 

Assizes,  court  of,  in  New  York,  petitions 
for  Assembly,  38. 

Attorney-general,  subject  to  colonial  gov- 
ernor, 139. 

Baltimore,  Cecilius,  Lord,  charter  to, 
8-9  ;  Charles,  Lord,  conflict  with  royal 
customs  service,  12;  religious  faith,  17- 
18,  19. 

Barbadoes,  suit  against  governor  of,  197. 

Bayard,  Nicholas,  trial  for  treason,  143, 
199-200. 

Belcher,  Jonathan,  governor  of  Massa- 
chusetts and  New  Hampshire,  succeeds 
Burnett,  51;  accused  of  partiality,  54; 
removed  54  ;  disagreement  with  lieu- 
tenant-governor, 57  ;  vetoes  election  of 
councillors,  77;  dislike  of  Phips,  78; 
claims  right  to  nominate  officers,  112; 
governor  of  New  Jersey,  112  ;  removal 
of  judges,  143  ;  claims  right  to  judge  of 
elections,  149 ;  abuse  of  power  of  pro- 
rogation, 152,  153;  salary,  172. 

Bellomont,  Richard,  Lord,  governor  of 
Massachusetts  and  New  York,  43,  52, 
170;  differences  with  council,  89;  suit 
against,  197. 

Benefices,  right  of  collation  to,  reserved 
to  governor,  1 28-132 /aw/w.  See  also 
Provincial  Governor  (powers). 


28o 


BERKELEY—  CHANCERY. 


Berkeley,  John,  Lord,  proprietor  of  New 
Jersey,  6,  7. 

Berkeley,  Sir  William,  governor  of  Vir- 
ginia, instructions,  37  ;  abuse  of  justice, 
143 ;  text  of  commission  and  instruc- 
tions, 214  seq. 

Bernard,  Francis,  governor  of  New  Jersey, 
instructions,  65-66,  73,  Si,  186;  com- 
mission, 81 ;  text  of  commission  and 
instructions,  226  seq. 

Biennial  acts,  155. 

Bishop  of  London,  jurisdiction  in  the 
colonies,  128  seq.  See  also  Church  of 
England. 

Blackstone,  William,  on  foreign  relations, 
106;  on  right  of  pardon,  124;  on  the 
king's  ecclesiastical  prerogative,  128. 

Blair,  Commissary  James,  altercations 
with  governors,  129,  130. 

Board  of  Trade,  excludes  governor  from 
legislative  council,  43 ;  governors  ap- 
pointed on  recommendation  of,  46 ;  com- 
plains of  royal  governors,  66-67,  m* 
1 48;  origin  and  powers,  69-71,  72,  74, 
75,  81  ;  on  personal  accountability  of 
governors,  85  ;  commission  and  instruc- 
tions drafted  by,  94;  on  fees,  119,  120; 
criticises  New  Jersey  militia  act  of  1704, 
121 ;  on  amendment  of  money  bills, 
123;  declines  to  interfere  in  Shute's 
censorship  of  the  press,  127  ;  on  tenure 
of  judicial  officers,  135-137  ;  censures 
Corn  bury,  149;  on  triennial  and  sep- 
tennial acts,  156-157;  on  salaries  of 
governors,  169-172;  on  encroachments 
of  assemblies,  193-194;  report  to,  197. 
See  also  Crown. 

Bonds  for  observance  of  instructions. 
See  Instructions. 

Boston  Gazette,  publishes  articles  reflecting 
on  the  governor,  201. 

Boston  people,  spirit  of,  179. 

"  Boston  principles,"  143. 

Bowdoin,  James,  leader  of  Massachusetts 
council,  90. 

British  government,  conflict  with  France, 
17 ;  acts  of  Parliament  to  be  enforced  by 
colonial  governors,  55,  69,  97  ;  colonial 
administration,  69-71 ;  English  judi- 
ciary, 133 ;  restrictions  on  colonial  legis- 
lation, 162-163;  jurisdiction  of  King's 
Bench  over  colonial  governors,  196-197. 
See  also  Board  of  Trade. 


Burgess,  Eliseus,  sold  his  appointment  as 
governor,  47. 

Burgesses,  House  of.  See  Viriginia  As- 
sembly. 

Burnaby,  Andrew,  Travels,  63. 

Burnet,  William,  governor  of  New  York 
and  Massachusetts,  character,  49  ;  suc- 
ceeded by  Belcher,  51  ;  controversy  with 
assembly  on  salary  questions,  118,  171- 
172. 

Burrington,  George,  governor  of  North 
Carolina,  claims  seat  in  the  upper 
House,  44;  dispute  with  assembly  as 
to  arrangement  of  electoral  districts, 
147;  report  concerning  treasurer,  185; 
attacked.  199. 

Byllinge,  Edward,  proprietor  of  W^est 
Jersey,  7-8. 

Byrd,  William,  question  of  suspension 
from  council,  75. 


Calvert,  Charles,  governor  of  Maryland, 
commission,  125. 

Calvert,  Leonard,  governor  of  Maryland, 
commission,  25,  125. 

Carolina,  charter,  5, 9,  32,  35 ;  proprietary 
form  of  government,  6  ;  popular  consti. 
tution,  7,  10;  "  Concessions  "  of  1665, 
10,26;  "Fundamental  Constitutions," 
10,  26,  40,  41  ;  friction  with  revenue 
officers,  12;  opposition  to  proprietary 
veto,  14 ;  prosecution  of  quo  warranto 
writ  against,  17;  legislation  and  taxa- 
tion to  be  with  consent  of  freemen,  32  ; 
right  of  proprietor  to  issue  ordinances, 
35)  39  ;  initiative  in  legislation  claimed 
for  governor  and  council,  40-41  ;  gov- 
ernor a  member  of  the  assembly,  41  ; 
separation  of  assembly  into  two  houses, 
42  ;  church  of  England  in,  130.  See  also 
North  Carolina,  Proprietary  Govern- 
ment, South  Carolina. 

Carteret,  Sir  George,  proprietor  of  New 
Jersey,  6,  7. 

Censorship.     See  Press. 

Chalmers,  George,  on  the  Virginia  coun- 
cil, 86 ;  on  the  Massachusetts  policy  of 
temporary  salary  grants,  170,  179;  on 
Governor  Denny,  174;  on  Treasurer 
John  Starkey,  185 ;  on  French  wars, 
192  ;  on  New  York  government,  194. 

Chancery  Courts.     See  Courts,  Equity. 


CHARLES  —  CULPEPER. 


281 


Charles  I.,  attitude  toward  Virginia,   3, 

36,  37- 
Charles  II.,  attack  on  colonial  charters, 

16,  21  ;  navigation  acts,  68,  97. 
Charter  government.     See  ch.  i.  passim. 
"  Charter  of  Privileges  "  in  New  York,  38. 
Charters,  proprietary,  provisions  of,  8-9, 

32,  91-92  ;  colonial,  attacks  on,  15  set/.  ; 
of  incorporation,  right  of  governors  to 
issue,  126.     See  also  colonies  by  name. 

Church  of  England,  in  the  colonies,  12S- 
132. 

Clarke,  George,  lieutenant-governor  of 
New  York,  passes  triennial  act  in  re- 
turn for  his  salary,  173. 

Clinton,  George,  governor  of  New  York, 
complains  of  assembly,  loi. 

Coddington,  William,  patent  to,  5. 

Colden,  Cadvvallader,  lieutenant-governor 
of  New  York,  136. 

Collation  to  benefices.     See  Benefices. 

Commission,  governor's,  cost,  47  ;  dura- 
tion, 49,  50 ;  analogy  to  king's  preroga- 
tive, 93 ;  features,  93-96.  See  also 
Provincial  Governor  (powers). 

Commissioners,  appointment  by  assembly, 
177-195 /aw/;«. 

Connecticut,  elective  government,  5,  6; 
prosecution  against,  17;  royal  control, 

17,  18,  22;  militia  under  command  of 
New  York  governor,  103.  See  also 
New  England,  New   Haven. 

Constitution  of  Virginia,  proposition  as  to 
governor's  salary  in,  175-176;  of  the 
United  States  as  to  president's  salary^ 
176. 

Constitutions,  State,  influence  of  colonial 
practice  on,  194,  195. 

Copley,  Sir  Lionel,  governor  of  Maryland, 
19. 

Cornbury,  Edward,  Lord,  governor  of 
New  York  and  New  Jersey,  complaint 
against  the  charter  governments,  21- 
22  ;  lack  of  principle,  47,  122,  184  ;  dis- 
agreement with  lieutenant-governor, 
57 ;  ordered  to  reinstate  suspended 
councillor,  75  ;  receives  instructions  as 
to  right  of  appeal,  140  ;  claims  right  to 
judge  of  elections,  149 ;  objects  to  as- 
sembly's choice  of  speaker,  1 50 ;  on 
republican  ideas  in  New  York  and 
New  Jersey,  179;  Bayard's  address  to, 
199. 


Cosby,  William,  governor  of  New  York, 
claims  seat  in  the  upper  house,  43 ; 
brings  suit  before  Supreme  Court,  143  ; 
removal  of  Chief-Justice  Morris,  143, 
200;  action  in  Zenger  trial,  143-144, 
200-201  ;  on  spread  of  Boston  prin- 
ciples, 179. 

Council,  governor's,  organization,  appoint- 
ment, etc.,  23-31,  72-90  ;  as  a  legislative 
upper  house,  42 ;  governor  claims  a 
seat  in,  42-44;  assumption  of  govern- 
ment in  governor's  absence,  56-59 ; 
qualifications  of  members,  73  ;  removal 
and  suspension  of  members,  74-75 ; 
points  of  difference  in  Pennsylvania  and 
Massachusetts,  75-78 ;  ex-officio  mem- 
bers, 78 ;  financial  compensation,  78- 
79  ;  times  of  meeting,  79  ;  quorum,  79  ; 
functions,  80  seq.  ;  power  as  an  advisory 
body,  80-85 ;  control  of  governor's  ac- 
tion, 85-87  ;  conservatism,  87-90  ;  as- 
sembly's jealousy  of,  88,  122;  as  upper 
house  denied  the  right  to  amend  money 
bills,  88,  122-123;  share  in  appointing 
power,  111-112.  See  also  Governor 
and  Council,  Provincial  Governor,  and 
colonies  by  name. 

"  Council  for  New  England,"  3-4. 

Courts,  of  justice,  governor's  power  to 
erect,  39,  93,  137-139;  o^  admiralty, 
106;  General  Court  of  Virginia,  140; 
of  appeal,  140, 141  ;  chancery,  141-142  ; 
probate,  142,  governor's  iufluence  over 
Supreme  Court,  143-144,  200-201  ;  gov- 
ernor responsible  only  to  King's  Bench, 
196-197.  See  also  Judiciary,  Provin- 
cial Governor  (powers). 

Cranfield,  Edward,  governor  of  New 
Hampshire,    collection    of    ta.xes,    35, 

39- 

Crown,  reserves  veto  on  colonial  legisla- 
tion, 6,  13,  162  ;  reserves  right  to  hear 
appeals,  6,  1 40-1 41  ;  represented  by 
the  governor,  34,  92-133  passim;  mili- 
tary prerogative,  98 ;  prerogative  in 
foreign  relations,  106;  appointing  pow- 
er, no;  right  of  pardon,  124;  right  to 
issue  charters  of  incorporation,  126; 
ecclesiastical  prerogative,  128;  judicial 
prerogative,  133.  See  also  Board  of 
Trade,  British  Government. 

Culpeper,  Thomas,  Lord,  governor  of 
Virginia,    instruction  to,  37 ;    Virginia 


282 


CUSTOMS—  FEES. 


Assembly  in  his  time,  42  ;  lack  of  prin- 
ciple, 47  ;  commission  for  life,  49. 

Customs,  interference  with  collection  of, 
12,  197  ;  surveyor-generals  of,  members 
of  the  council,  78. 

Cutts,  John,  commission  as  "  president  " 
of  New  Hampshire,  6. 

De  Lancey,  James,  chief-justice  of  New 
York,  200. 

Delaware,  proprietary  government  in, 
attacked,  17 ;  common  executive  with 
Pennsylvania,  52-53 ;  law  giving  prop- 
erty of  intestates  to  governor,  62 ;  tenure 
of  office  in,  1 16  ;  church  of  England  not 
established  in,  129 ;  annual  elections  for 
assemblies,  145.    See  also  Pennsylvania. 

Delaware,  Thomas,Lord,  governor  of  Vir- 
ginia, appointed,  23  ;  commission,  32- 
33  ;  text  of  commission  to,  201. 

Denny,  William,  governor  of  Pennsyl- 
vania, violates  instructions,  174. 

Deplorable  State  of  New- England,  157. 

Dinwiddie,  Robert,  lieutenant-governor  of 
Virginia,  income,  63;  on  the  Pennsyl- 
vania militia  law  of  1755,102;  military 
activity,  105;  financial  prerogative  in- 
vaded, 181. 

Dissolution,  of  assemblies,  IS3-IS7'  See 
also  Assembly,  Provincial  Governor 
(powers). 

Divorce.     See  Marriage. 

Dobbs,  Arthur,  governor  of  North  Caro- 
lina, instructions,  96,  135,  13S;  removes 
opposition  leader,  in  assembly,  115;  re- 
ceives instruction  as  to  fees,  120 ;  finan- 
cial prerogative  invaded,  181. 

Dongan,  Thomas,  governor  of  New  York, 
instructions,  29 ;  authorized  to  call  an 
Assembly,  38  ;  receives  royal  directions 
as  to  military  affairs,  104. 

Douglass,  governor  of  the  Leeward  Is- 
lands, 197. 

Douglass,  William,  on  instability  of  gov- 
ernor's position,  50  ;  on  governor's 
equity  jurisdiction,  141 ;  on  governor's 
power  of  prorogation,  1 52 ;  cites  cases 
of  trial  of  governors,  197. 

Dudley,  Joseph,  governor  of  Massachu- 
setts and  New  Hampshire,  commission 
v/ith  title  of  president,  16;  complaint 
against  the  charter  governments,  21  ; 
instructions  of  1702,69;  vetoes  election 


of  councillors,  77 ;  on  the  character 
of  the  council,  89 ;  vetoes  election  of 
speaker,  150;  unable  to  secure  perma- 
nent salary  grants,  170. 

Dummer,  Jeremiah,  Defence  of  the  New- 
England  Charters,  22,  85. 

Durham,  palatinate  of,  8,  9. 

Dyer  case,  in  New  York,  38. 

East  Jersey,  given  to  Sir  George  Car- 
teret, 7 ;  "  Fundamental  Constitutions," 
II,  28  ;  prosecution  against,  17  ;  annual 
elections  in,  155-156.  See  also  New 
Jersey,  West  Jersey. 

Ecclesiastical  powers.  See  Church  of 
England,  Crown,  Provincial  Governor 
(powers). 

Elections,  for  the  assembly,  145-149 ;  gov- 
ernor claims  right  to  judge  of,  149.  See 
also  Assembly,  Council,  Provincial  Gov- 
ernor (powers),  and  colonies  by  name. 

Endicott,  John,  governor  of  Massachu- 
setts Bay,  4. 

England.     See  British  Government. 

Equity,  jurisdiction  of  the  governor  and 
council,  141-142.  See  also  Courts, 
Governor  and  Council,  Provincial  Gov- 
ernor (powers). 

Everard,  Richard,  governor  of  North  Ca- 
rolina, controversy  with  the  council,  27. 

Executive,  provincial,  evolution  of,  23-45 ; 
governor's  appointment,  tenure,  etc.,  46- 
64 ;  governor  as  agent  of  home  govern- 
ment, 65-71  ;  governor's  council,  72-90; 
governor's  powers,  91-132;  governor's 
relation  to  the  judiciary,  133-144;  in- 
fluence upon  legislative  branch,  145- 
165;  power  of  assembly  over,  166-176; 
powers  assumed  by  assembly,  177-195; 
weakened  during  the  later  colonial  pe- 
riod, 193  seg.  See  also  Assembly,  Gov- 
ernor and  Council,  Provincial  Governor 
(powers). 

External  relations.  See  Indians,  Provin- 
cial Governor  (powers). 

Fabrtgas  vs.  Mostyn,  case  of,  196. 
Fauquier,  Francis,  governor  of  Virginia, 

85- 
Fees,  regulation  of,  by  the  governor,  39, 

117-121  ;  as  part  of  governor's  income, 

60-61.     See  also  Assembly,  Provincial 

Governor  (powers). 


FINANCE— INDIAN. 


283 


Finance,  paper-money,  87,  88,  163;  regu- 
lation of  salaries  and  fees  by  the  gov- 
ernor, 117-121  ;  governor's  warrant  for 
issuing  money,  121 -123;  usurpation  of 
governor's  powers  by  assembly,  124, 
180-188.  See  also  Assembly,  Provin- 
cial Governor  (powers).  Treasurer. 

Fletcher,  Benjamin,  governor  of  New 
York  and  Pennsylvania,  19;  as  gover- 
nor of  New  York  put  in  control  of 
Connecticut  militia,  103;  governor  of 
Pennsylvania,  104. 

Franklin,  Benjamin,  authorship  of  His- 
torical Review  of  the  Constiitition  and 
Goz'ertiment  of  Pennsylvania  wrongly 
ascribed  to,  52;  on  salary  question, 
175  ;  as  colonial  agent,  202. 

French  and  Indian  wars,  constitutional 
effects  of,  102, 188-192.     See  also  War. 

George  II.,  Delaware  law  in  time  of,  62  ; 
act  relating  to  iron  and  steel  factories, 
68. 

George  III.,  act  providing  new  oath  as  to 
duties,  69. 

Georgia,  proprietary  government,  22 ; 
royal  government  established,  22 ;  or- 
ganization of  assembly,  39 ;  council 
as  upper  house,  44 ;  governor's  salary, 
59 ;  militia  law,  100 ;  assembly  unduly 
prorogued,  153;  assembly  dissolved 
prematurely,  154;  appointment  of  trea- 
surer, 182. 

Gibson,  Edmund,  Bishop  of  London,  col- 
onial jurisdiction,  12S. 

Gilbert,  Sir  Humphrey,  patent  to,  i. 

Glen,  James,  governor  of  South  Carolina, 
protests  against  exclusion  from  council, 
44  ;  Description  of  South  Carolina,  67  ; 
on  the  governor's  powers,  98 ;  nego- 
tiates with  Indians,  108;  on  the  govern- 
ment of  the  province,  187. 

Gookin,  Charles,  governor  of  Pennsyl- 
vania, complaint  against  assembly,  83. 

Gorges,  Sir  Ferdinand,  urges  royal  gov- 
ernments in  New  England,  16. 

Governor,  relations  with  council,  23-45, 
72-90;  powers  at  first  loosely  defined, 
31-34;  a  member  of  the  assembly,  41- 
44;  personal  accountability,  85.  See 
also  Council,  Governor  and  Council, 
Proprietary  Governor,  Provincial  Gov- 
ernor, and  governors  by  name. 


Governor  and  council,  relations  of,  23-45, 
72-90;  in  Virginia,  23-25,  72,  86;  in 
Maryland,  25 ;  in  Carolina,  26-28  ;  in 
New  Jersey,  28,  86;  in  New  York,  28- 
29  ;  in  New  Hampshire,  29  ;  in  Penn- 
sylvania, 29-31,75;  in  Massachusetts, 
31,76-78;  judicial  powers,  32-36 /rt^- 
sim,  44-45  ;  legislative  powers,  32-45 
passim;  power  of  prosecution,  139; 
power  of  decision  in  questions  of  mar- 
riage and  divorce,  142.  See  also  Coun- 
cil, Provincial  Governor  (powers). 

Grand  Council,  in  Carolina,  26,  40. 

Hamilton,  Andrew,  speech  in  Zenger 
trial,  155,  197,  201;  speaker  of  Penn- 
sylvania assembly,  188;  on  inadequacy 
of  legal  checks  upon  the  governor,  197- 
198. 

Hamilton,  James,  governor  of  Pennsyl- 
vania, text  of  commission  to,  261. 

Hardy,  Josiah,  governor  of  New  Jersey, 
violates  instructions,  95  ;  removed,  136. 

Harvey,  John,  governor  of  Virginia,  con- 
troversy with  his  council,  24. 

Holt,  chief-justice,  on  proprietary  gov- 
ernments, 18. 

Home  government.  See  Board  of  Trade, 
British  Government,  Crown. 

Howard,  Francis,  Lord,  governor  of  Vir- 
ginia, instruction  to,  regarding  assem- 
bly, 37- 

Hunter,  Robert,  governor  of  New  York 
and  New  Jersey,  instructions,  81  ;  com- 
plains of  council,  86 ;  acknowledges 
bargain  in  passage  of  acts,  164;  re- 
quests settlement  of  salary,  169;  on 
appointment  of  treasurer  by  the  as- 
sembly, 184. 

Hutchinson,  Thomas,  on  Governor  Bello- 
mont  of  Massachusetts,  42,  43  ;  char- 
acter as  governor  of  Massachusetts,  49; 
on  right  of  lieutenant-governor  to  sit  in 
the  council,  78  ;  on  colonial  councils, 
85,  89-90;  leader  of  Massachusetts 
council,  89-90;  on  the  Massachusetts 
judiciary,  143;  chief  justice  of  Massa- 
chusetts, 201. 

Indian  affairs,  superintendent  of,  a  mem- 
ber of  the  council,  78;  appointment, 
108,  109  ;  interference  of  the  assembly 
in,  192-193. 


284 


INDIA  N—  MAINE. 


Indian  commissioners,  appointment  of, 
187-188,  193. 

Indians,  invasions  in  South  Carohna,  15, 
20;  Shirley's  service  with,  62  ;  relations 
of  colonies  with,  107-110;  governors' 
proclamations  concerning,  160.  See 
also  French  and  Indian  Wars. 

Instructions  to  governors,  bond  for  ob- 
servance of,  in  proprietary  governments, 
14,  196;  features,  93-97  ;  violation,  94- 
95,  163-165,  173-175;  restricting  co- 
lonial legislation,  162-165.  See  also 
Provincial  Governor  (powers),  and  gov- 
ernors by  name. 

Intercolonial  relations,  109, 192.  See  also 
Indians,  Provincial  Governor  (powers). 


Jamaica  assembly,  resolutions  of,  on  fi- 
nancial powers  of  the  assembly,  1S2.  ^ 
James  I.  inaugurates  royal  government  in 

Virginia,  3. 
James  II.,  effect  upon  New  York  of  his 
accession  to  the  throne,  15  ;  organizes 
royal  government  in  Massachusetts,  16  ; 
Penn's  relation  with,  iS ;  opposes  re- 
presentation in  New  York,  38 ;  policy 
of,  52.  See  also  York,  Duke  of. 
Jefferson,  Thomas,  on  the  salary  of  the 

executive,  i75-''76- 
Jennings,    Samuel,    deputy-governor    of 
West  Jersey,  8 ;  speaker  of  New  Jer- 
sey assembly,  1 50. 
Jerseys.     See   East  Jersey,  New  Jersey, 

West  Jersey. 
Johnson,  Robert,  governor  of  South  Caro- 
lina, adherence  to  instructions,  1S7. 
Johnston,    Gabriel,    governor   of    North 
Carolina,  dissolves  assembly,  154;  ap- 
proves paper-money  bill,  164. 
Judges.     See  Judiciary. 
Judiciary,  consent  of  council  required  in 
appointment  of  officers,  81, 111-112, 134; 
governor's  relation  to,  133-144;  English, 
133;  tenure  of  oiifice,  134-13?  ;  erection 
of"  courts,   137-139;   prosecution,   139; 
governor's   criminal  jurisdiction,    140; 
appeal    cases,    140-141  ;    equity   cases, 
141-142 ;   minor  functions,  142  ;    gov- 
ernor's abuse  of  power,  143,  144  ;  juris- 
diction of  King's  Bench  over  colonial 
governors,  196-197.     See  also  Courts, 
Provincial  Governor  (powers). 


Keith,  Sir  William,  governor  of  Pennsyl- 
vania, insubordination,  83-84 ;  alliance 
with  assembly,  87  j  salary  obtained  by 
system  of  bargain  and  sale,  174. 

King's  Bench,  colonial  governors  subject 
to  jurisdiction  of,  196-197.  See  also 
Courts,  Judiciary. 

King's  Province,  included  in  royal  gov- 
ernment of  Massachusetts,  16. 


Land,  grants  of,  in  the  colonies,  126. 
Leeward  Islands,  suit  against  governor  of, 

197-  .     , 

Legislation,  consent  of  freemen  required 
in  Maryland,  Carolina,  and  Pennsylva- 
nia, 32,  34;    power  at  first   exercised 
by  executive,   34-36;    ordinances   and 
proclamations,  34-39.  i59-i6i  ;  power 
transferred  to  assembly,  36-39;  initia- 
tive claimed  by  governor,  39-41,  161 ;  , 
advice  of   council  asked,  82-84 ;   gov-  \ 
ernor's  indirect  influence,  145-1 59 ;  gov- ! 
ernor's  right  of  recommendation,  161 ;  ' 
governor's  veto,  162  ;  veto  reserved  by 
the  crown,  162  ;  certain  acts  not  to  be 
approved    by   the   governor,    162-163; 
"legislative  riders,"  164;  influence  of 
salary  grants  on,    167-176.      See   also 
Assembly,  Governor  and  Council,  Pro- 
vincial Governor  (powers),  and  colonies 
by  name. 
Leisler  rebellion,  38. 
Libel  cases,  143-1 44,  200-201. 
Liberty  of  speech  and  press.     See  Press, 

Speech. 
Lieutenant-governor,     office     sought     as 
source   of   profit,   47  ;    temporary  suc- 
cessor of  governor,  53,   55-58  ;   power 
in  Virginia,  58 ;  sometimes  member  of 
council,  58,  78. 
Lloyd,  John,  asks  appointment  as   lieu- 
tenant-governor of  South  Carolina,  47. 
London  Company,  2,  3 ;   Bishop  of,  see 

Bishop  of  London. 
Lovelace,  John,  Lord,  governor  of  New 

York  and  New  Jersey,  139. 
Lowther,  governor  of  Barbadoes,  197. 


Maine,  province  of,  included  in  royal 
government  of  Massachusetts,  16;  re- 
presentation in  Massachusetts  council> 
76. 


MANSFIELD  —  MASS  A  CHUSETTS. 


285 


Mansfield,  chief-justice,  decision  as  to 
governor's  legal  accountability,  196. 

Markham,  William,  deputy-governor  in 
Pennsylvania,  29. 

Marque  and  reprisal,  letters  of,  106. 

Marriage,  licences  in  governor's  disposal, 
128,  129,  142;  questions  concerning, 
decided  by  governor  and  council,  142. 

Martial  law,  governor's  power  to  exe- 
cute, 99.  See  also  Provincial  Governor 
(powers). 

Maryland,  charter  of,  1632,  5,  8,  32,  107, 
no,  125;  feudal  organization,  10;  tax- 
ation and  quit-rent  troubles,  11,  13; 
traffic  in  offices,  12  ;  friction  with  reve- 
nue officers,  12;  prosecution  against, 
17  ;  proceedings  against  charter  of,  17- 
18;  royal  government  in,  19;  example 
of  proprietary  government,  21 ;  early 
constitution  of  the  executive,  25,  32, 
34-35 ;  tenure  of  office  in,  116;  church 
of  England  in,  131 ;  right  of  appeal  in, 
140.  See  also  Pennsylvania,  Proprie- 
tary Government. 

Maryland  assembly,  opposition  to  pro- 
prietary veto,  14 ;  constitution  of  first, 
41  ;  separation  of  the  two  houses,  42  ; 
makes  permanent  salary  grants,  59 ; 
jealous  of  council,  88 ;  political  in- 
fluence of  Pennsylvania  on,  88,  178; 
jealous  of  governor's  military  powers, 
102;  acts  regulating  fees,  118;  contro- 
versy about  proprietor's  right  of  sum- 
mons, 146-147 ;  proposal  to  influence 
by  use  of  patronage,  158;  exclusion  of 
office-holders  from,  158-159;  assumes 
appointment  of  treasurer,  182-183; 
claims  direction  of  military  operations, 
190-191  ;  legislation  against  seditious 
utterances,  198. 
Maryland,  council,  small  at  first,  25 ; 
supports  the  governor,  87  ;  assembly 
jealous  of,  88 ;  with  governor  forms  an 
ecclesiastical  court,  131. 
Maryland  governor,  duties  in  early  times, 
32  ;  a  member  of  the  assembly,  41 ;  use 
of  proxies,  41  ;  right  to  issue  special 
writs,  41  ;  salary,  59,  16S ;  income  of, 
63 ;  complains  that  his  recommenda- 
tions for  the  council  have  been  disre- 
garded. 74  ;  asks  advice  of  council,  82  ; 
supported  by  council,  87  ;  military  ac 
tivity,  104-105;    appointing  power  re- 


stricted by  assembly,  115-116;    regula- 
tion of  fees  by,  119;  pardoning  power, 
125;    with  council  forms  an  ecclesias- 
tical court,  131  ;  proclamation  by,  160. 
See  also  Calvert,  Copley,  Sharpe. 
Maryland  proprietor,  personal  complica- 
tions,   17-18;    shares  right  of  legisla- 
tion and  taxation  with  freemen,  32,  34; 
right   to  issue   ordinances,  34-35,  39; 
claims  right  to  initiate  legislation,  40 ; 
military  powers,  99;    authority  in  ex- 
ternal relations,  107  ;  appointing  power, 
no;    corrupt   use   of   patronage,   114; 
pardoning  power,  125.     See  also  Balti- 
more, Proprietors. 
Massachusetts,   elective   government,    5 ; 
first   charter  annulled,   16 ;  royal  gov- 
ernment organized,  16 ;  constitution  of 
the  executive  under  the  Province  char- 
ter, 31,  76 ;  combined  with  New  Hamp- 
shire under  one  governor,    52-54,    57, 
152-153;  charter  of  1691,  76,  82,  91-92, 
99,    no;    censorship  of   the   press  in, 
127-128;    "Boston    principles,"    143; 
political  influence  of,  178-180;  political 
discussion  in,  restricted,  199.     See  also 
New  England. 
Massachusetts  Bay,  included  in  royal  gov- 
ernment of  Massachusetts,  16;  repre- 
sentation in  Massachusetts  council,  76. 
See  also  Massachusetts,  New  England. 
Massachusetts  Bay  Company,  charter,  4. 
Massachusetts   council   assumes   govern- 
ment in  absence  of  governor,  56;  local 
representation  in,  76;   constitution  of, 
76-78 ;    question  as  to  lieutenant-gov- 
ernor's seat,  78;    quorum,  79;   claims 
right   of   nomination,   82,   112;   advice 
asked  of,  82,  84;  conservatism,  88-90; 
shares  governor's   power   in  marriage 
and  divorce  cases,  142. 
Massachusetts  General  Court,  election  of 
councillors,  31 ;  gifts  to  governors,  62; 
constitution  of,  76;  appointing  power, 
no,  113.  183,  184;  annual  elections  re- 
quired, 145  ;  choice  of  speaker  vetoed 
by  governor,  150-151  ;  dissolution,  153; 
distribution  of  patronage  to  members 
of,   157;    withholds  salaries,  173;    ap- 
points committee  of  war,  178;  financial 
encroachments,  181 ;  assumes  direction 
of   military    operations,    189-192;    en- 
croachments in  Indian  affairs,  192-193 ; 


286 


MASSACHUSETTS—  NEW  JERSEY. 


extent  of  usurpation  upon  executive, 
193-194. 

Massachusetts  Government  Act,  90. 

Massachusetts  governor,  question  as  to 
seat  in  the  upper  house,  43 ;  colonists 
appointed  to  chair,  48  ;  average  tenure, 
51;  inauguration,  54;  presents  to,  62; 
income,  63  ;  military  powers,  99  ;  mili- 
tary authority  in  other  colonies,  103; 
military  activity,  105  ;  declaration  of 
war  by,  108 ;  negotiations  with  the  In- 
dians, 108;  appointing  power,  110-113 
passim  ;  jurisdiction  in  marriage  and 
divorce  cases,  142 ;  power  of  proroga- 
tion and  dissolution,  152 ;  proclamation 
by,  160 ;  controversy  as  to  salary  of, 
170-173;  suit  against,  197;  alleged  libels 
on,  201.  See  also  Belcher,  Bellomont, 
Burnet,  Dudley,  Phips,  Shirley,  Shute. 

Military  powers.  See  Crown,  Provincial 
Governor  (powers). 

Militia  laws,  100-105  passim.  See  also 
colonies  by  name. 

Ministers,  presentation  and  induction  of, 
128-132.  See  also  Church  of  England, 
Provincial  Governor  (powers). 

Money-bills,  council  not  to  amend,  88, 122- 
123.     See  also  Finance. 

Montgomerie,  John,  governor  of  New 
York  and  New  Jersey,  iiS,  157. 

Morris,  Lewis,  governor  of  New  Jersey, 
appointment,  48,  54 ;  character,  49 ; 
anxious  about  position,  50;  reinstated 
in  council,  75  ;  advances  speaker  of  as- 
sembly, 115;  as  chief  justice  of  New 
York  removed  by  Cosby,  143,  200;  on 
dependence  of  governors,  173-174  ;  on 
New  England  influence,  178. 

Moseley,  Edward,  speaker  of  North  Caro- 
lina assembly,  185. 

Navigation  Acts,  a  form  of  parliamen- 
tary control  in  the  colonies,  12;  gov- 
ernors required  to  enforce,  22,  68,  69, 
97-98.     See  also  Charles  11. 

Newcastle,  Duke  of,  colonial  patronage 
of,  47. 

New  England,  early  governments,  3-5  ; 
seat  of  elective  form  of  government,  7 ; 
Gorges'  attempt  to  establish  royal  gov- 
ernment in,  16  ;  royal  commissions  in 
16S6,  16;  commission  to  Andros  in 
1688,  17,  29,  38,  52  ;  church  of  England 


not  established  in,  129 ;  salary  question, 
170;  political  influence,  177-1S0.  See 
also  Connecticut,  Massachusetts,  New 
Hampshire,  New  Jersey,  New  York, 
Rhode  Island. 

New  Hampshire,  royal  government  in,  6 ; 
included  in  royal  government  with 
Massachusetts,  16 ;  early  constitution 
of  the  executive,  29,  35-36, 39,  41 ;  com- 
bined with  Massachusetts  under  one 
governor,  52-54,  57,  152,  153;  separate 
government,  54 ;  militia  under  com- 
mand of  Massachusetts  governor,  103  ; 
records,  178.    See  also  Massachusetts. 

New  Hampshire  assembly,  separation  of 
the  two  houses,  42 ;  Governor  Went- 
worth's  address  to,  67 ;  controversy 
about  the  right  of  summons,  147  ;  choice 
of  speaker  vetoed  by  governor,  151  ; 
governor  refuses  to  dissolve,  155;  tri- 
ennial acts,  156;  resents  governor's  in- 
terference in  legislation,  161  ;  refuses 
judicial  salaries,  164 ;  financial  encroach- 
ments, 181  ;  interference  in  military 
affairs,  190,  191. 

New  Hampshire  council,  local  represen- 
tation in,  73  ;  controversy  with  gov- 
ernor as  to  appointments,  112;  shares 
governor's  power  in  marriage  and  di- 
vorce cases,  142  ;  ordinance  issued  by, 
160. 

New  Hampshire  governor,  colonists  ap- 
pointed to  post,  48  ;  tenure,  51  ;  oath 
required  of,  54 ;  present  to,  62  ;  dec- 
laration of  war  by,  108;  negotiations 
with  the  Indians,  108  ;  controversy 
with  council  as  to  appointments,  112  ; 
patronage  of,  113;  regulation  of  fees 
by,  119,  120;  jurisdiction  in  marriage 
and  divorce  cases,  142  ;  vetoes  choice 
of  speaker,  151  ;  violates  instructions, 
165;  salary,  173;  retains  appointment 
of  treasurer,  182.  See  also  Belcher, 
Burnet,  Cranfield,  Dudley. 

New  Haven,  elective  government,  5,  6„ 
See  also  Connecticut,  New  England. 

New  Jersey,  grant  of  by  the  Duke  of 
York,  6;  division  of,  7  ;  "concessions," 
10,  28 ;  friction  with  revenue  officers, 
12;  petition  for  royal  government,  15; 
included  in  Andros's  commission  for 
New  England,  17,  52  ;  royal  control  jus- 
tified, 18;  royal  government  established, 


NE  W  J  ERSE  Y—  NOR  TH  CAROLINA . 


287 


19-20  ;  early  development  of  the  exec- 
utive, 28 ;  combined  with  New  York 
under  one  governor,  52-54,  57 ;  separate 
government,  54  ;  Quaker  influence  in, 
loi ;  church  of  England  not  established 
in,  129;  courts,  137,  139;  political  in- 
fluence of  Pennsylvania  and  New  Eng- 
land in,  178, 179.  See  also  East  Jersey, 
West  Jersey. 

New  Jersey  assembly,  act  regulating  ten- 
ure of  offices,  116;  regulation  of  fees  by, 
1 19-120;  militia  act  of  1704,  121  ;  de- 
nies right  of  council  to  amend  money 
bills,  123  ;  attempts  to  control  judicial 
tenure,  135-136;  power  in  apportion- 
ment of  representatives,  148;  choice  of 
speaker  disapproved  by  governor,  150  ; 
triennial  bills,  156,  157  ;  appoints  exec- 
utive officers,  186  ;  interferes  in  military 
affairs,  190;  statute  against  seditious 
utterances,  199. 

New  Jersey  council,  local  representation 
in,  73  ;  holds  quarterly  meetings,  79 ; 
independent,  86  ;  controversy  with  gov- 
ernor as  to  appointments,  112. 

New  Jersey  governor,  claims  seat  in  the 
upper  House,  43  ;  colonist  chosen  as, 
48  ;  fees  of,  61  ;  complains  of  council's 
obstinacy,  86 ;  violates  instructions,  94- 
95  ;  controversy  with  council  as  to  ap- 
pointments, 112;  political  use  of  patron- 
age, 115;  appointing  power  restricted, 
1 1 5-1 16;  regulation  of  fees  by,  119; 
right  to  apportion  representatives,  147- 
148;  refuses  to  swear  representatives, 
149  ;  objects  to  speaker  of  assembly, 
150;  ordinance  issued  by,  160;  salary, 
173-174;  retains  appointment  of  treas- 
urer, 182.  See  also  Bernard,  Cornbury, 
Hardy,  Hunter,  Morris. 

New  Netherland,  passes  from  Dutch,  5, 
91 ;  "  Articles  of  Capitulation,"  91.  See 
also  New  York. 

New  York,  charter  of  1664,  5,  9,  28,  32  ; 
royal  government  established,  15;  in- 
cluded in  Andros's  commission  for  New 
England,  17,  38,  52;  early  constitution 
of  the  executive,  28,  33-39 /aw/w  ;  be- 
ginning of  representation  in,  38,  39  ; 
Leisler  rebellion,  38 ;  combined  with 
New  Jersey  under  one  governor,  52-54, 
57  ;  corrupt  administration  of  royal 
lands  in,   126;   church  of  England  in, 


129-130;  Zenger  trial,  143-144,  200- 
201  ;  New  England  influence  in,  178- 
180. 

New  York  assembly,  neglects  to  pass  mi- 
litia law,  loi ;  contest  over  regulation 
of  official  salaries,  118;  suspects  integ- 
rity of  the  executive,  1 22 ;  denies  right 
of  council  to  amend  money  bills,  122- 
123 ;  attempts  to  control  judicial  tenure, 
135-136 ;  attacks  court  of  chancery, 
138;  triennial  and  septennial  acts,  156; 
corrupted  by  official  patronage,  15S; 
act  disqualifying  judicial  officers,  159; 
threatens  to  withhold  supplies,  164; 
encroachments  on  financial  powers  of 
governor,  180 ;  assumes  appointment 
of  treasurer,  184 ;  appoints  executive 
officers,  186 ;  interferes  in  military  af- 
fairs, 190  ;  extent  of  usurpation,  194. 

New  York  council,  shares  governor's  ap- 
pointing power.  Si. 

New  York  governor,  claims  seat  in  the 
upper  House,  43  ;  income,  60,  63 ;  de- 
pendent on  assembly,  63 ;  appointing 
power  restricted,  81,  116-117;  in  com- 
mand of  Connecticut  militia,  103  ;  con- 
test with  assembly  over  regulation  of 
official  salaries,  iiS;  regulation  of  fees 
by,  119;  corrupt  administration  of 
royal  lands,  126;  subject  to  ecclesias- 
tical jurisdiction  of  Archbishop  of  Can- 
terbury, 128 ;  equity  jurisdiction  of, 
142 ;  undue  influence  on  the  courts, 
143;  attempt  to  curb  freedom  of  press, 
143-144,  200-201 ;  undue  prorogation 
of  assembly,  153  ;  barter  in  passage  of 
acts,  164;  controversy  as  to  salary  of, 
169-170;  passes  triennial  act  in  return 
for  salary,  173;  suit  against,  197.  See 
also  Burnet,  Clinton,  Cornbury,  Cosby, 
Dongan,  Fletcher,  Hunter,  Montgo- 
merie,  Nicolls. 

Nicholson,  Francis,  governor  of  South 
CaroUna,  21,  138,  179;  governor  of 
Virginia,  86,  129,  130. 

Nicolls,  Richard,  governor  of  New  York, 
powers,  28,  33,  35. 

North  Carolina,  anarchy  in,  15;  royal 
government  established,  21,  28;  rec- 
ords, 47,  112;  church  of  England  in, 
130-131  ;  courts,  13S;  influential  po- 
sition of  treasurer,  1S5.  See  also  Caro- 
lina. 


288 


NORTH  CAROLINA— PENNSYLVANIA. 


North  Carolina  assembly,  militia  laws, 
loi ;  act  regulating  tenure  of  office,  1 16 ; 
acts  regulating  fees,  11S-120;  attempts 
to  control  judicial  tenure,  135;  contro- 
versy about  governor's  right  of  sum- 
mons, 147;  dissolution  of,  154;  sessions 
of,  155;  attempts  to  force  governor's 
approval  of  legislation,  164 ;  assumes 
appointment  of  treasurer,  183,  185 ; 
treasurer  leader  of,  185 ;  seditious  ut- 
terances punishable  in,  199. 

North  Carolina  council  organization,  27  ; 
appointing  power,  27,  112;  shares  gov- 
ernor's right  to  suspend  ministers,  131. 

North  Carolina  governor,  controversy 
with  council,  27 ;  claims  seat  in  the 
upper  He  use,  44;  average  tenure  of, 
51 ;  salary,  59,  167  ;  abuse  of  patronage 
by,  115;  right  to  regulate  fees,  1 18-120; 
right  to  suspend  ministers,  131 ;  ap- 
proves choice  of  speaker,  150;  dissolves 
unsatisfactory  assembly,  154;  ordinance 
by,  recommended,  160;  approves  paper 
money  bill,  165;  money  issued  without 
warrant  of,  181.  See  also  Burrington, 
Dobbs,  Everard,  Johnston. 

Northey,  Edward,   attorney-general,  66. 

Oakes,   Thomas,    controversy  over   his 

election  as   speaker  in   Massachusetts 

House,  150. 
Oaths,   required  of  provincial  governor, 

54-55 ;  to  be  administered  by  governor 

to  members  of  assembly,  149. 
Offices,   sale   of,   in   Maryland,   12.     See 

also  Patronage. 
Ordinances,  issued  by  governors,  34-36, 

39'    I59~i6i.     See   also  governors   by 

name. 

Palatinate,  principle  of,  in  proprietary 
charter,  8,  9. 

Palatine's  Court,  in  Carolina,  10,  26. 

Paper  money,  council  opposed  to,  87,88; 
instructions  concerning,  163;  bills  for, 
approved  by  governors,  165.  See  also 
Finance. 

Pardon,  governor's  right  of,  124-126. 

Parliament,  acts  of,  to  be  enforced  by 
governors,  55,  69,  97.  See  also  Board 
of  Trade,  British  Government,  Crown. 

Parliamentary  system,  possible  develop- 
ment of,  in  the  colonies,  1S5-1S6. 


Patronage,  political  use  of,  by  governors, 
85,  "4-"  5.  157-159;  governor's  right 
of,  110-113;  reservations  by  the  crown, 
113-114;  restrictions  imposed  by  as- 
sembly, 11 5-1 16;  usurped  by  assembly, 
182-188.  See  also  Provincial  Governor 
(powers). 

Penn,  Hannah,  instructions  by,  83,  84. 

Penn,  William,  founds  Pennsylvania,  6; 
frames  system  of  government,  11,  29- 
30,  75;  regard  for  interests  of  colo- 
ny, 12;  relations  with  James  II.,  18; 
authority,  107,  no.  See  also  Pennsyl- 
vania, Proprietor. 

Pennsylvania,  charter  of  1681,  6,  9,  32, 
no;  tendency  toward  constitution-mak- 
ing, II ;  taxation  and  quit-rent  troubles, 

II,  13;  "Frame  of  Government,"  11, 
29;  friction  with  revenue  officers,  12; 
royal  government  in,  19;  example  of 
proprietary  government,  21 ;  "  Provin- 
cial Council,"  29,  40;  early  constitution 
of  the  executive,  29-31 ;  initiative  in 
legi.slation  claimed  for  the  governor 
and  council,  40 ;  common  executive  with 
Delaware,  52-53 ;  political  influence, 
88,  178-179;  Quaker  influence  in,  loi ; 
church  of  England  not  established  in, 
129;  courts,  13S,  142.  See  also  Mary- 
land, Proprietary  Government. 

Pennsylvania  assembly,  no  upper  House 
in,  42,  59, 83, 145  ;  militia  law,  102,  1 10- 
III ;  attempts   to  control  judicial  ten- 
ure, 135  ;  denies  authority  of  chancery 
court,  142  ;  annual  elections  for,  145 
prorogation  and  dissolution,  151  ;  con 
trols    governor    by   temporary  grants 
174;  speaker  issues  orders  on  the  treas 
urer,  181  ;   appoints  executive  officers 
187-188 ;    controls  military  operations 
189 ;    appoints    Indian  commissioners 
193 ;  extent  of   encroachment  upon  ex 
ecutive,  193. 

Pennsylvania  council,  has  no  legislative 
powers,  42,  59,  83,  145;  assumes  gov- 
ernment in  governor's  absence,  56; 
constitution  of,  75-76 ;  holds  weekly 
meetings,  79 ;  advice  of,  required  in 
legislation,  83-84,  145  ;  opposed  by  gov- 
ernor, 83-84,  87. 

Pennsylvania  governor,  military  activity, 
104;    appointing   power    limited,    iio- 

III,  n6;  pardoning  power,  125;  salar}', 


PENNSYL  VANIA  —  PRO  VINCI AL. 


289 


174,    iSi.     See   also  Denny,  Fletcher, 
Gookin,  Keith,  Thomas. 

Pennsylvania  proprietor,  right  of  veto 
opposed,  13-14  ;  personal  complica- 
tions, 17-1S  ;  shares  right  of  legislation 
and  taxation  with  freemen,  32 ;  military 
powers,  99 ;  authority  in  external  rela- 
tions, 107;  appointing  power,  no;  par- 
doning power,  125.  See  also  Penn, 
William. 

Perquisites,  of  colonial  governors,  61-62. 

"  Personal  unions,"  52-54,  56-57.  See 
also  Massachusetts,  New  Hampshire, 
New  Jersey,  New  York. 

Phips,  Sir  William,  governor  of  Massa- 
chusetts, inauguration,  54;  use  of  veto, 
77 ;  as  lieutenant-governor  refused  a 
seat  in  the  council,  78  ;  in  command  of 
Rhode  Island  and  New  Hampshire  mi- 
litia, 103  ;  salary,  170;  suit  against,  197. 

Piracy  cases,  governor's  jurisdiction  in, 
142. 

Plymouth,  self-governing  colony,  5 ;  in- 
cluded in  Andros's  commission  for  New 
England,  16 ;  representation  in  Massa- 
chusetts council,  76. 

Plymouth  Company,  3. 

Pownall,  Thomas,  present  to,  62 ;  criti- 
cism of  British  colonial  administration, 
70-71  ;  on  the  governor's  commission, 
95;  on  the  erection  of  courts,  139;  on 
courts  of  equity,  142;  on  instructions 
limiting  colonial  legislation,  163;  pro- 
tests against  encroachments  of  the  as- 
sembly, 190. 

Presents,  to  governors  from  assemblies, 
62. 

President,  of  United  States,  salary,  176. 

President  and  council,  in  New  England, 
see  New  England ;  in  New  Hampshire, 
6,  29,  41-42  ;  in  Virginia,  23,  31-34. 

Press,  censorship  of,  in  Massachusetts, 
127-128  ;  importance  of  liberty  of,  198- 
202  ;  attacked  in  New  York,  200-201. 

Privy  council,  appeals  to,  140-141.  See 
also  Appeal. 

Probate  of  wills,  jurisdiction  of  the  gov- 
ernor in,  12S-129,  142. 

Proclamations.     See  Ordinances. 

Proprietary  charter,  constitutional  provi- 
sions in  individual  colonies,  8-9 ;  gen- 
eral characteristics,  32,  91-92. 

Proprietary  colonies,  right  of  the  King 


to  appoint  governors  in,  18.  See  also 
Carolina,  Maryland,  Pennsylvania. 

Proprietary  government,  in  Virginia,  2-3  ; 
in  Massachusetts  Bay,  4;  in  New 
Hampshire,  5  (note),  6,  16;  in  Maryland, 
5,  6,  S-19  passim  ;  in  Carolina,  5,  6,  9- 
21  passim;  in  New  York,  5,  9-17  pas- 
sifn  ;  in  Pennsylvania,  6,  9-21  passim  ; 
in  New  Jersey,  6-20  passim  ;  general 
characteristics  of  system,  8  seq. ;  de- 
fects, 1 1-15  ;  transition  to  royal  govern- 
ment easy,  15;  royal  attacks  on,  15 
seq.  ;  bill  for  bringing  into  closer  de- 
pendence upon  crown,  21 ;  royal  con- 
trol, 22 ;  system  in  Georgia,  22.  See 
also  Carolina,  Maryland,  Pennsylvania. 

Proprietary  governor,  distinguished  from 
royal,  9-10;  to  be  approved  by  .the 
crown,  22.  See  also  Proprietary  Gov- 
ernment. 

Proprietors,  right  of  veto  opposed,  13- 
14;  constitutional  limitations  upon,  32. 
See  also  Carolina,  Maryland,  Pennsyl- 
vania, Proprietary  Government. 

Prorogation,  governor's  right  of,  151- 153. 
See  also  Assembly,  Provincial  Gov- 
ernor (powers),  and  colonies  by  name. 

Providence  Plantations.  See  New  Eng- 
land, Rhode  Island. 

Provinces,  consolidation  of,  17,  52. 

Provincial  governments,  combination  of. 

Provincial  governor,  vice-regal  character, 
34,  92  ;  claims  initiative  in  legislation, 
39-41 ;  claims  seat  in  legislative  coun- 
cil, 42-44  ;  term  defined,  45  ;  appoint- 
ment, 46-49  ;  cost  of  commission,  47  ; 
colonists  appointed  to  seat,  48;  tenure 
of  office,  49-52  ;  sometimes  over  two 
colonies,  52-54;  inauguration,  54;  oaths 
taken  by,  54-55 ;  residence  required  of, 
55  ;  provisions  for  vacancies,  55-59 ; 
disagreements  with  lieutenant-gover- 
nor, 57  ;  titular  governors  appointed,  57 ; 
sources  of  income,  59-64 ;  salary,  59- 
60,  167-176;  fees,  60-61;  perquisites, 
61-62;  agent  of  home  government, 65- 
71;  reports  required  of,  65-67;  relation 
to  other  officers  of  the  royal  service, 
67  ;  penalties  imposed  upon,  68-69 ;  re- 
lations with  British  colonial  adminis- 
tration, 69-71 ;  relation  to  the  council, 
72-90;  personal  accountability,  85 ;  ex- 


19 


290 


PRO  VINCI AL  —  SHERIFFS. 


ecutive  powers,  91-132 ;  relation  to 
the  judiciary,  133-144;  relation  to  the 
assembly,  145-195;  legal  and  political 
accountability,  196-202.  See  also  Gov- 
ernor, Governor  and  Council,  and  gov- 
ernors by  name. 

Provincial  governor,  powers,  how  defined, 
91  seq. ;  commission  and  instructions, 
93-98  ;  violation  of  instructions,  94-95, 
163-165,  173-175;  instructions  restrict- 
ing legislation,  162-165  ;  military  pow- 
ers, 98-105 ;  encroachments  of  the 
assembly,  1S8-192 ;  admiralty  powers, 
105-106;  external  relations,  106-110; 
encroachments  of  the  assembly,  192- 
193;  appointing  power,  72-78,  81-82, 
110-114,  134-137;  corrupt  use  of,  114- 
115;  legislation  restricting,  11 5-1 17; 
assumed  by  the  assembly,  181-188; 
financial  powers,  11 7-1 24;  assumed  by 
the  assembly,  iSc-182 ;  pardoning  pow- 
er, 124-126;  keeper  of  the  province 
seal,  126, 141  ;  land  grants,  126 ;  issue  of 
charters  of  incorporation,  126  ;  right  to 
establish  markets  and  fairs,  1 27  ;  censor- 
ship of  the  press,  127-128;  ecclesiastical 
functions,  128-132;  provisional  author- 
ity in  special  cases,  132  ;  power  over  ju- 
diciary, 1 33-144 ;  appointment  of  officers, 
111-112,  134-137;  erection  of  courts, 
137-139;  right  of  prosecution,  139; 
hearing  of  appeals,  140-141  ;  equity 
jurisdiction,  141-142  ;  minor  functions, 
142-144 ;  power  over  the  assembly,  145- 
165;  right  of  summons,  145-149;  ad- 
ministration of  oath  to  members,  149  ; 
veto  on  choice  of  speaker,  149-151 ; 
prorogation  and  dissolution,  151-157  ; 
use  of  patronage,  157-159  (see  also 
Patronage)  ;  legislative  powers,  159- 
165;  issue  of  ordinances,  159-161  (see 
also  Ordinances) ;  right  of  recommen- 
dation, 161  ;  veto,  162 ;  instructions 
limiting  legislation,  162-165. 

Proxies,  use  of,  in  Maryland  assem- 
bly, 41. 

Purse,  power  of,  167-176. 

Quo  WaubaNTO  process,  against  col- 
onial charters,  3,  16,  17. 

Raleigh,  Sir  Walter,  patent  to,  2. 
Randolph,  Edward,  criticism  of  proprie- 


tary governments,  12,  15  ;  charges 
against  colonial  governors,  69. 

Receiver,  royal,  168.     See  also  Treasurer. 

Removal,  of  governors,  49-52,  68-69,  136 ; 
of  councillors,  74-76 ;  of  judicial  of- 
ficers, III  seq.,  134-137,  143;  of  mili- 
tary officers,  189,  191-192.  See  also 
Provincial  Governor  (powers). 

Reports,  required  of  colonial  governors, 
65-67. 

Representation,  beginning  of,  in  the  colo- 
nies, 36  seq. 

Reprisal.     See  Marque. 

Reynolds,  John,  governor  of  Georgia,  1 54. 

Rhode  Island,  elective  government,  5,  6 ; 
prosecution  against,  17;  royal  control, 
17,  18,  22  ;  militia  under  command  of 
Massachusetts  governor,  103.  See  also 
Connecticut,  New  England. 

Royal  government,  establishment  of,  15 
seq.  See  also  Proprietary  Government 
and  colonies  by  name. 

Royal  governor,  distinguished  from  pro- 
prietary, 9-10.  See  also  Governor,  Pro- 
vincial Governor. 

Salaries,  of  governors,  59-60;  augmen- 
ted by  fees  and  perquisites,  60-64;  of 
councillors,  78-79;  of  provincial  of- 
ficers, 117-118;  controversy  as  to,  167- 
176.     See  also  Fees,  Perquisites. 

Seal,  public,  governor  the  keeper  of,  126, 
141. 

Secretaries  of  state,  governor's  relations 
with,  70-71. 

Seditious  utterances,  restraint  of,  19S-199. 
See  also   Press,  Speech. 

Separation  of  powers,  principle  of,  disre- 
garded in  the  early  colonial  constitu- 
tions, 34  j^f.     See  also  Assembly. 

Septennial  acts,  146,  1 55-1 57- 

Sewall,  Samuel,  diary  of,  43,  89. 

Sharpe,  Horatio,  governor  of  Maryland, 
appointing  power  interfered  with,  12; 
chafes  under  restraint,  13 ;  character, 
49  ;  considers  financial  advantages  of  a 
change  to  the  government  of  New 
York,  63 ;  recommendations  for  the 
council  disregarded,  74 ;  seeks  to  shift 
responsibility,  82  ;  conflict  with  assem- 
bly, 102;  military  activity,  105. 

Sheriffs,  appointment,  in,  112,  115-116; 
functions  of,  in  elections,  146-149;  dis- 


SHIRLEY—  VIRGINIA. 


2gi 


qualified  from  sitting  in  assembly,  158- 
159. 

Shirley,  William,  governor  of  Massachu- 
setts, present  to,  62 ;  commander-in- 
chief  in  America,  105;  requested  to 
declare  war,  108 ;  instructions  as  to 
salary,  172;  military  encroachments  of 
the  assembly  under,  1S9. 

Shute,  Samuel,  governor  of  Massachusetts 
and  New  Hampshire,  disagreement 
with  lieutenant-governor,  57;  complaint 
against,  in  regard  to  appointment  of 
councillors,  73 ;  seeks  advice  from 
councillors,  82  ;  declares  war  against 
Indians,  108  ;  censorship  of  the  press, 
127;  vetoes  choice  of  speaker,  150- 
151;  dissolves  assembly,  153;  salary, 
170. 

Skene,  John,  proprietor's  deputy  in  West 
Jersey,  8. 

South  Carolina,  opposition  to  proprietary 
veto,  14;  petition  for  royal  government, 
15;  royal  government  established,  20- 
21,  27 ;  office  of  lieutenant-governor 
sought,  47  ;  church  of  England  in,  131 ; 
courts,  138  ;  influence  of  New  England 
in,  179.     See  also  Carolina. 

South  Carolina  assembly,  complains  of 
excessive  fees,  61 ;  act  regulating  fees, 
120;  sessions  of,  155;  disqualifies  office- 
holders for  membership,  159;  makes 
temporary  salary  grants,  173 ;  en- 
croaches on  governor's  financial  powers, 
181 ;  assumes  appointment  of  treasurer, 
183,  184;  appoints  executive  officers, 
187  ;  interferes  in  military  and  Indian 
affairs,  192-193;  extent  of  usurpation 
upon  executive,  193. 

South  Carolina  council,  organization,  27 ; 
conservatism,  87. 

South  Carolina  governor,  right  to  seat  in 
the  upper  House  denied,  44;  negotia- 
tions with  Indians,  108 ;  patronage,  113- 
114;  violates  instructions,  165.  See 
also  Glen,  Johnson,  Nicholson. 

Spaniards,  invade  South  Carolina,  15,  20. 

Speaker,  governor's  approval  of,  149-151  ; 
office  joined  with  that  of  treasurer,  183- 
186.     See  also  Assembly,  Treasurer. 

Speech,  freedom  of,  198-202.  See  also 
Press. 

Spotswood,  Alexander,  governor  of  Virgi- 
nia, character,  49  ;  power  of  suspension 


restricted,   75;    complains  of   council, 

86;  restive  under  restriction,  112. 
State  governments,  influence  of  colonial 

practice  on,  194-195. 
Stokes,  Anthony,  on  provincial  councils, 

88  ;  on  the  governor's  patronage,  113. 
Stoughton,  William,  lieutenant-governor 

of  Massachusetts,  78. 
Summons,  governor's  right  of,  145-149. 
Supreme  Court,  governor's  influence  over, 

143-144,  200-201. 
"  Suspending  clause,"  in  colonial  acts,  163, 

Taxation,  on  proprietary  estates,  11,  13, 
82 ;  and  representation,  32-39  passim. 
See  also  Assembly,  Legislation. 

Tenure  of  office,  of  governor,  49-52 ;  of 
judicial  officers,  134-137.  See  also 
Judiciary,  Proprietary  Governor. 

Thomas,  George,  governor  of  Pennsyl- 
vania, 174. 

Titular  governors,  in  Virginia,  57. 

Townshend,  Charles,  Lord,  secretary  of 
state,  47. 

Treasurer,  provincial,  appointed  by  the 
assembly,  182-186;  importance  of,  185. 
See  also  Assembly,  Receiver,  Speaker. 

Treaties,  governor's  power  to  make,  108- 
109. 

Triennial  acts,  146,  155-158. 

United  States,  constitution  of,  as  to 
president's  salary,  176. 

Vacancies,  in  the  office  of  governor,  pro- 
vision for,  55-59.  See  also  Council, 
Lieutenant-governor. 

Vestries,  encroachments  on  governor's 
prerogative,  130-131. 

Veto,  reserved  by  the  crown,  6,  13,  162 ; 
proprietor's  right  of,  opposed,  13-14; 
governor's  right  of,  in  election  of  coun- 
cillors, 76-78 ;  in  choice  of  speaker, 
149-151  ;  in  legislation,  162-165. 

Vice-admiral,  governor  as,  105-106. 

Virginia,  charter  government,  2-3 ;  royal 
government  established,  3 ;  elective  gov- 
ernment, 6 ;  early  constitution  of  the 
executive,  23-25,  31-34 ;  beginning  of 
representation,  36-38;  office  of  lieu- 
tenant-governor, 57-58  ;  custom  of 
publishing  governor's  instructions,  94 ; 
church  of   England  in,  129-131;  draft 


292 


VIRGINIA  —ZENGER. 


of  constitution  for,  175-176  ;  treasurer- 
ship,  1S3-185.  See  also  Proprietary 
Government. 

Virginia  assembly,  of  161 9,  first  represen- 
tative body  in  America,  36  ;  early  con- 
stitution of,  41 ;  separation  into  two 
Houses,  42 ;  House  of  Burgesses  asserts 
its  right  to  "  lay  the  levy,"  42, 122  ;  loses 
povFer  over  governor's  salary,  59,  146, 
168  ;  restricts  governor's  appointing 
power,  115,  116;  act  regulating  fees, 
118;  acts  in  interest  of  vestries,  130; 
infrequent  sessions  of,  146;  long  con- 
tinuance of,  154-155;  septennial  act, 
156;  distribution  of  patronage  among 
members  of,  157  ;  office-holders  to  re- 
sign seats  in,  159;  offices  of  speaker 
and  treasurer  combined,  183-185. 

Virginia  Company,  2-3,  12,  23. 

Virginia  council,  shares  with  governor 
the  initiative  in  legislation,  40,  41 ;  ap- 
pointment of  members,  72-73 ;  salary 
of  members,  78 ;  powerful,  86 ;  gover- 
nor resents  interference  of,  112;  with 
governor  forms  an  ecclesiastical  court, 

Virginia  General  Court,  138,  140.  See 
also  Virginia  council. 

Virginia  governor,  initiative  in  legislation 
claimed  for,  40,  41  ;  a  member  of  the 
assembly,  41 ;  colonists  appointed  to 
chair,  48 ;  commission  for  life,  49  ;  titu- 
lar and  lieutenant-governor,  57-58,  63  ; 
income,  58,  59,  60,  63,  146,  168 ;  at- 
tempts to  shift  responsibility,  85  ;  mil- 
itary activity,  104-105  ;  proposition 
to  restrict,  112;  extent  of  patronage, 
113;  appointing  power  restricted,  115, 
116;    regulation   of    salaries  by,   118; 


regulation  of  fees  by,  1 19 ;  with  coun- 
cil forms  an  ecclesiastical  court,  131  ; 
ordinances  issued  by,  160 ;  constitu- 
tional provision  as  to  salary,  175-176; 
power  of  issuing  warrants  invaded,  181. 
See  also  Culpeper,  Dinwiddle,  Fau- 
quier, Harvey,  Howard,  Nicholson, 
Wyatt. 

War,  French  and  Indian,  12,  13,  59,  102, 
160,  188-192  ;  Queen  Anne's,  1S6. 

War  and  peace,  prerogative  of,  how  far 
granted  to  governors,  106-110,  132. 

Warrant,  governor's,  for  issue  of  money, 
117,  121-123,  1S0-181. 

Wentworth,  Benning,  governor  of  New 
Hampshire,  48,  67,  161,  165,  181. 

Wentworth,  John,  lieutenant-governor  of 
New  Hampshire,  text  of  commission, 
264. 

West  Jersey,  elective  government  in,  7-8  ; 
"  Concessions,"  8,  10  ;  "  Fundamen- 
tals," 11;  prosecution  against,  17;  an- 
nual elections  in,  155-156;  assembly 
adjourns  itself,  156.  See  also  East  Jer- 
sey, New  Jersey. 

William  III.,  policy  of,  17;  statutes,  22, 
50,  68,  98. 

Wyatt,  Sir  Francis,  governor  of  Virgi- 
nia, 3. 

York,  Duke  of,  patent  to,  5-6 ;  accession 
to  throne,  15  ;  opposes  representation 
in  New  York,  38.     See  also  James  II. 

Yorke,  Charles,  attorney-general,  on  ten- 
ure of  judges'  commissions,  95. 

Zenger,  John  Peter,  trial  of,  143-144, 
200-201. 


Harvard   Historical   Studies. 

Published  under  the  Direction  of  the  Department  of  History  and  Gov- 
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hoped  that  three  volumes  will  be  published  annually. 

The  following  volujties  are  now  ready. 

I.  THE  SUPPRESSION  OF  THE  AFRICAN  SLAVE-TRADE 
TO  THE  UNITED  STATES  OF  AMERICA,  1638-1870. 
By  W.  E,  B.  Du  Bois,  Ph.D.,  Professor  in  Wilberforce  Univer- 
sity.    8vo.    pp.  xi-335.     $1.50  7tet. 

II.  THE  CONTEST  OVER  THE  RATIFICATION  OF  THE 
FEDERAL  CONSTITUTION  IN  THE  STATE  OF  MAS- 
SACHUSETTS. By  S.  B.  Harding,  A.M.,  Assistant  Professor 
of  History  in  Indiana  University.     Svo.     pp.  vi-194.     $1.25  net. 

in.  A  CRITICAL  STUDY  OF  NULLIFICATION  IN  SOUTH 
CAROLINA.  By  D.  F.  Houston,  A.M.,  Adjunct  Professor 
of  Political  Science  in  the  University  of  Texas.  Svo.  pp.  x-169. 
$1.25  net. 

IV.  NOMINATIONS  FOR  ELECTIVE  OFFICE  IN  THE 
UNITED  STATES.  By  Frederick  W.  Dallinger,  A.M., 
Member  of  the  Massachusetts  Senate;  formerly  Secretary  of  the 
Republican  City  Committee  of  Cambridge,  Massachusetts.  Svo. 
pp.  xiv-290.     $1.50  net. 

V.  A  BIBLIOGRAPHY  OF  BRITISH  MUNICIPAL  HISTORY, 
INCLUDING  GILDS  AND  PARLIAMENTARY  REP- 
RESENTATIO]^.  By  Charles  Gross,  Ph.D.,  Assistant  Pro- 
fessor of  History  in  Harvard  University.  Svo.  pp=  xxxiv-461. 
$2.50  net. 

VI.  THE    LIBERTY    AND    FREE    SOIL    PARTIES    IN    THE 

NORTHWEST.     By  Theodore   C.  Smith,  Ph.D.     Svo.     pp. 
xii-351.    $1.7$  net. 

VII.  THE    PROVINCIAL   GOVERNOR   IN    THE   ENGLISH 

COLONIES  OF  NORTH  AMERICA.  By  Evarts  Bou- 
TELLE  Greene,  Professor  of  History  in  the  University  of 
Illinois.     Svo.     pp.  x-392. 


LONGMANS,  GREEN,  &  CO.,  New  York. 


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